[Congressional Record (Bound Edition), Volume 157 (2011), Part 5]
[Senate]
[Pages 6831-6836]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

     NOMINATION OF JAMES MICHAEL COLE TO BE DEPUTY ATTORNEY GENERAL

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nomination, 
which the clerk will report.
  The bill clerk read the nomination of James Michael Cole, of the 
District of Columbia, to be Deputy Attorney General.
  The PRESIDING OFFICER. Under the previous order, there will be 1 hour 
of debate equally divided and controlled between the two leaders or 
their designees.
  Mr. GRASSLEY. Mr. President, I yield 10 minutes to the Senator from 
North Carolina.
  Mr. BURR. Mr. President, I thank the Senator. In less than an hour, 
this body will be asked to vote on cloture to proceed to the nomination 
of James Michael Cole to be Deputy Attorney General. I rise in 
opposition to that cloture vote on the nomination of James Cole, and I 
urge my colleagues to strongly oppose it.
  As a member of the Senate Intelligence Committee, I share the views 
of the vice chairman, Senator Chambliss, and the ranking member of the 
Judiciary Committee, Senator Grassley, as expressed in their letter to 
Republican colleagues dated May 6, 2011, opposing cloture on this 
nomination.
  I ask unanimous consent to have printed in the Record this letter 
from Republican colleagues.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                      Washington, DC, May 6, 2011.
       Dear Colleague: The Majority Leader has filed cloture on 
     James Cole, the President's nominee to be the Deputy Attorney 
     General. At this time, we do not support Mr. Cole's 
     appointment and urge you to oppose cloture on his nomination.
       During the last Congress, Mr. Cole's nomination was not 
     considered by the full Senate for several reasons. First, the 
     Department of Justice has refused to comply with repeated 
     minority requests since August 2010 for documents and 
     information related to the activities of the Guantanamo Bay 
     Detainee Review Task Force. Second, Mr. Cole's comments and 
     hearing testimony regarding the September 11th terrorist 
     attacks raise significant concerns about his suitability to 
     be the Deputy Attorney General of the United States. Third, 
     we have concerns about Mr. Cole's abilities based on his 
     performance as an Independent Consultant tasked with 
     overseeing the insurance group, AIG. As a result, the Senate 
     returned the nomination to the President. Unfortunately, on 
     December 29, 2010, Mr. Cole was recess appointed to a one-
     year term while the Senate was adjourned and sworn in shortly 
     thereafter. Notwithstanding Mr. Cole's recess appointment, 
     our reasons for opposing his nomination remain.


Department of Justice Stonewalling Document and Information Requests by 
                            Ranking Members

       For several years, the Senate Select Committee on 
     Intelligence has been reviewing the process used by the 
     Administration's Guantanamo Bay Detainee Review Task Force to 
     detain, transfer, or release detainees from the Guantanamo 
     Bay facility. Given that the recidivism rate among these 
     detainees has now risen above 25 percent, Congress must have 
     clear insight into this process to determine whether 
     additional legislation is needed to protect our national 
     security.
       The Attorney General has been asked repeatedly to provide 
     Congress with: (1) any guidance or recommendations related to 
     the Task Force process (including a September 2009 Attorney 
     General memorandum concerning a presumption to be applied in 
     favor of transfer or release for certain detainees); (2) the 
     Task Force's unredacted recommendations regarding each 
     detainee; and (3) a list of the 92 detainees who were 
     approved for transfer as of August 28, 2009, prior to the 
     issuance of the September 2009 memo. In spite of these 
     specific written requests from Senators in the minority, 
     including a request from all of the minority members of the 
     Select Committee on Intelligence, the Justice Department has 
     not provided the information, instead asserting a 
     questionable ``deliberative process'' privilege to justify 
     its lack of compliance.
       Aside from this dubious assertion of privilege, the 
     repeated failure of the Justice Department to comply with 
     this oversight request is part of a disturbing pattern of 
     refusing to recognize legitimate oversight requests from 
     ranking minority members. For example, the Justice Department 
     is currently refusing to turn over documents requested by the 
     Ranking Member of the Senate Judiciary Committee regarding 
     serious allegations that the Bureau of Alcohol, Tobacco, 
     Firearms, and Explosives knowingly allowed straw purchasers 
     to buy firearms that were then provided to criminal drug 
     cartels in Mexico. At least two of these weapons were later 
     found at the scene where Border Patrol agent Brian Terry was 
     murdered.


                     Mr. Cole's Views on Terrorism

       A September 2002 opinion piece by Mr. Cole raises serious 
     questions about his judgment and his current views on 
     terrorism. In that article, he noted that ``[f]or all the 
     rhetoric about war, the September 11th attacks were criminal 
     acts of terrorism against a civilian population'' and were no 
     more horrible than ``the scourge of the drug trade, the reign 
     of organized crime, and countless acts of rape, child abuse, 
     and murder.'' He also argued that the protections of our 
     criminal justice system ``must be applied to everyone to be 
     effective.''
       While the United States must use every means at our 
     disposal--criminal, intelligence, and military--to fight 
     terrorism, not every terrorist deserves the valued 
     protections of our criminal justice system. Although Mr. Cole 
     has downplayed his comments, he has not rejected the 
     comparison of September 11th to ordinary criminal acts or 
     answered whether he favors trying terrorists in civilian 
     courts. His failure to do so exhibits a lack of understanding 
     about the real threat of terrorism.


                Mr. Cole's Performance in Overseeing AIG

       We have a number of concerns about Mr. Cole's abilities 
     based on his performance as an Independent Consultant tasked 
     with overseeing AIG. Some of these concerns cannot be shared 
     in this letter, because the Judiciary Committee has labeled 
     the relevant reports as ``Committee Confidential.'' 
     Nonetheless, these reports and Mr. Cole's responses reveal 
     what appears to be a level of deference to AIG management 
     that one would not expect to see from someone tasked as an 
     ``independent'' monitor. Also, we have serious concerns about 
     Mr. Cole's decision to suspend the compliance review of AIG's 
     Financial Products division following the government bailout.


                               Conclusion

       We believe that before Mr. Cole's nomination receives an 
     up-or-down vote in the Senate, the Department of Justice must 
     immediately comply with the long-standing requests for 
     documents and information related to the Guantanamo Bay 
     Detainee Review Task Force. Moreover, we are not yet 
     convinced that Mr. Cole's recess appointment should be 
     ratified by the Senate in light of the remaining concerns 
     about his suitability for this very important position.
       Again, we urge you to oppose cloture of Mr. Cole's 
     nomination at this time.
           Sincerely,
     Charles E. Grassley,
       Ranking Member, Senate Committee on the Judiciary.
     Saxby Chambliss,
       Vice Chairman, Senate Select Committee on Intelligence.

  Mr. BURR. Mr. Cole's nomination is troubling on several fronts. 
First, the Department of Justice, where he now serves as second in 
command since his recess appointment this past December, refuses to 
provide the Senate Intelligence Committee with documents we have been 
requesting for months.
  More than 2 years ago, the Intelligence Committee learned that the 
recidivism rate--the number of prisoners we release who go back into 
the fight--at Gitmo was 11 percent. Today it stands at over 25 percent. 
In this effort to close the detention facility at Gitmo, the President 
ordered a task force run by the Attorney General to review the status 
of all detainees still housed at Gitmo. Through much of 2009, the Gitmo 
detainee review task force examined every detainee's case and made 
recommendations to the administration on whether to transfer, release, 
or detain each one.
  At a time when Congress is aware that former Gitmo detainees are 
returning to their old ways, we have an obligation to the American 
people--an obligation to the American people--to make sure no more 
detainees are released who could cause us harm. Even

[[Page 6832]]

though Gitmo remains open right now, efforts to transfer or release 
many of these detainees continue today. The documents the Intelligence 
Committee is seeking all relate to the task force process and will help 
the committee understand why the task force made the recommendations it 
did, especially with respect to those detainees who may have raised red 
flags for the intelligence community.
  We know that the Attorney General provided recommendations on how the 
task force should make its transfer decisions because of separate 
information provided to the committee. We do not have everything, 
however, including the September 2009 memorandum in which the Attorney 
General reportedly recommends that an entire category of detainees be 
presumed to be eligible for transfer--presumed eligible for transfer. 
While we have asked for this memorandum and any other recommendations 
repeatedly, the Department has refused to provide them. If the Attorney 
General of the United States recommended that certain detainees be 
treated favorably, possibly in spite of the intelligence, the Senate 
Intelligence Committee has a clear oversight interest in reviewing the 
September memorandum and seeing if and to whom it was applied.
  In addition to refusing to provide the September 2009 memorandum, the 
Justice Department has also denied the Intelligence Committee the 
recommendations of the task force. The committee cannot determine why 
the task force made its recommendations without seeing the description 
of how the task force came to the positions it did. The Department 
claims that both the September 2009 memorandum and the unredacted 
recommendations are protected from disclosure to Congress because of 
deliberative process. This is an assertion ordinarily used in a FOIA 
case or in the context of Executive privilege, not to inhibit 
congressional oversight of a Federal agency. An interesting 
inconsistency in this assertion is that the administration has 
willingly provided the Intelligence Committee with the recommendations 
of the past administration.
  I understand that in the last few days, the Attorney General has 
reached out to the vice chairman of the Intelligence Committee in an 
effort to resolve these issues before today's vote. Given the 
Department's months of delays and obstruction in complying with this 
request, I believe cloture on this nomination is not appropriate until 
the documents requested have been provided in full.
  In addition to the document issue, Mr. Cole has not explained some 
highly charged comments he made about 9/11. An op-ed he authored back 
in September 2002 called the 9/11 attacks ``criminal acts of terrorism 
against a civilian population.'' He went on to dismiss the severity of 
9/11, calling it no more horrible than ``the scourge of the drug trade, 
the reign of organized crime, and countless acts of rape, child abuse, 
and murder.''
  Mr. Cole has not rejected or fully explained those comments. Until he 
does so and until the Department ends its refusal to comply with 
reasonable congressional requests for information, I cannot support the 
move to consider his nomination. I urge my colleagues to reject cloture 
today.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. LEAHY. 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. LEAHY. Mr. President, I assume we are on the nomination of Jim 
Cole.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. LEAHY. Mr. President, to make a parliamentary inquiry: Am I 
correct that time runs to 5:30?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. LEAHY. Time has been consumed by this quorum call, and so I ask 
unanimous consent that any time consumed in further quorum calls be 
equally divided on both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, the majority leader has been required to 
file cloture in this extraordinary case in an attempt to overcome a 
Republican filibuster on the nomination of Jim Cole to be Deputy 
Attorney General. This is a key national security position and the No. 
2 position at the Department of Justice. Certainly, with what has 
happened in the past week or so, it is important for this President or 
any President to have a full national security team.
  I thought back, and I could not remember a time in my 37 years here 
where the Senate has filibustered a President's nomination to be Deputy 
Attorney General. I asked Senate Judiciary Committee staff to check 
that and they found that the Senate has never filibustered a 
President's nomination to be Deputy Attorney General. In fact, during 
the time I was chairman of the committee, we quickly moved on President 
Bush's Deputy Attorneys General, even on those who would not have been 
my choice. We knew it was a national security position and it is 
important at a time when we face the threats we do here and abroad that 
we have that position filled. In fact, I thought it would be 
unconscionable, whether it was President Bush, President Reagan or any 
other President, to stall a Deputy Attorney General.
  Mr. Cole's nomination to fill this critical national security 
position was blocked last year, when it was pending on the Senate's 
Executive Calendar for 155 days after it was reported favorably by the 
Judiciary Committee. The nomination was reported favorably by the 
Judiciary Committee again in March, and incredibly, it is again being 
filibustered. People have asked me how this could be happening. It is 
hard to believe that one week after the successful operation that 
killed Osama bin Laden, the world's number one terrorist, we cannot 
take this step to ensure that President Obama has his full national 
security team in place. It is similar to ``Alice in Wonderland.''
  Now that a measure of justice has been secured for the victims of 
September 11, I have expressed hope that we could come together, as we 
did in the weeks and months following September 11. We should be 
ensuring that we are extra vigilant these days. There are widespread 
reports that experts are concerned about this being a time in which al-
Qaida will seek reprisals. Most Americans believe we should be 
concerned about them trying to strike back. This is not a time for 
further delay or obstruction. Let us join together and confirm this 
qualified nominee. We also ought to show the rest of the world that no 
matter what our political labels might be, we believe in the President 
of the United States having his national security team in place.
  This weekend, the Washington Post editorial board called this delay 
``ridiculous,'' referring to the Deputy Attorney General as 
``essentially the chief operating officer of the Justice Department, 
including its national security operations.'' This delay is ridiculous 
and dangerous to every single American. I hope other Senators will see 
it as such and help end it.
  We have the opportunity to set aside partisanship and join with our 
President to keep America safe. I recall in the aftermath of 9/11 we 
took immediate steps--Republicans and Democrats together--to do what we 
could to make sure the President's entire law enforcement team was in 
place.
  We expedited the nominations of 14 U.S. attorneys that had been 
received in the Senate only 1 week before, reporting them from the 
Judiciary Committee on September 13 and confirming them by voice vote 
the very next day. Those nominations included the nomination of Paul 
McNulty to the Eastern District of Virginia, one of the key districts 
where terrorism defendants like Zacarias Moussaoui, one of the 
conspirators in the 9/11 attacks, are tried. We continued to expedite 
nominations in the weeks and months that followed, confirming an 
additional 58 officials to posts at the Justice Department in those 
weeks and before the end of 2001.
  Republican Senators helped a Republican President to get his security 
team in place to protect the Nation, but now are not going to help a 
Democratic President to get his security

[[Page 6833]]

team in place. It is the same Nation and the security threats are the 
same against Republican Presidents and Democratic Presidents. We ought 
to come together as Americans first on this important issue.
  Last week at the Judiciary Committee's oversight hearing on the 
Department of Justice, the Attorney General of the United States 
reiterated the need for final Senate action on the nomination of the 
Deputy Attorney General. He urged the Senate to confirm Jim Cole to 
help the Department fulfill all of its critical tasks, including 
protecting national security, in a time of heightened concern about 
retaliatory attacks stemming from Osama bin Laden's death. Yet, rather 
than take action to end the unnecessary and unexplained delays and 
finally confirm the nomination of Jim Cole, the unprecedented 
Republican filibuster continues. This is wrong. It should end.
  I hope that Senators on the other side of the aisle will listen to 
former Deputy Attorneys General of the United States who served in both 
Republican and Democratic administrations. Last December, they wrote to 
the leaders of the Senate and urged the Senate to consider Mr. Cole's 
nomination without delay. These former officials who served with 
distinction in that post wrote that the Deputy is ``the chief operating 
officer of the Department of Justice, supervising its day-to-day 
operations'' and that ``the Deputy is also a key member of the 
president's national security team, a function that has grown in 
importance and complexity in the years since the terror attacks of 
September 11.'' They were right and their advice rings true today.
  As the former Deputies, 3 of whom served under President George W. 
Bush, noted in their letter, ``Because of the responsibilities of the 
position of Deputy Attorney General, votes on nomination for this 
position usually proceed quickly.'' I wish the Senate had heeded their 
advice and voted to confirm Mr. Cole last year. Now another 5 months 
have passed.
  When we first reported Jim Cole's nomination last July, I said that I 
hoped the Senate would treat his nomination to this critical national 
security and law enforcement position with the same urgency and 
seriousness with which we treated all four of the Deputy Attorneys 
General who served under President Bush. All four were confirmed by the 
Senate by voice vote an average of 21 days after they were reported by 
the Judiciary Committee. In fact, we confirmed President Bush's first 
nomination to be Deputy Attorney General the day it was reported by the 
committee. That is not the treatment that Deputy Attorney General Cole 
has received.
  The Senate's treatment of the Cole nomination represents a sharp 
break from the Senate's longstanding practice of deference to the 
administration and timely consideration of critical national and law 
enforcement nominations. In their letter last December, the 8 former 
Deputy Attorneys General noted that, of the 11 nominations to fill this 
position over the last 20 years from Democratic and Republican 
Presidents, ``none remained pending for longer than 32 days.'' I 
remember some of President Bush's nominations to this position remained 
pending even less than that.
  Jim Cole's nomination has been pending on the floor for 222 days 
combined, nearly seven times longer than any nominee in the last 20 
years. In fact, dating back to 1981, 15 of the 16 Deputy Attorney 
General nominations pending on the Executive Calendar were confirmed 
unanimously, the only exception being President Obama's first Deputy 
Attorney General nomination, of David Ogden, which was confirmed 65-28 
after cloture was filed and a time agreement was reached. All of the 
nominees of Presidents Reagan, George H.W. Bush, Clinton and George 
Bush were confirmed unanimously by the Senate, in an average of less 
than 2 weeks.
  Last December, after the nomination had already been delayed for over 
4 months without explanation, I came to the floor and asked unanimous 
consent that at a time to be determined by the majority and minority 
leaders, the Senate consent to a time agreement for a debate and a vote 
on the Cole nomination. I asked that Senators have the courage to step 
forward, not hide behind the filibuster, and to either vote yes or no 
on this critical national security position. Republicans objected to 
that request in December and have still, 5 months later, refused to 
agree to a time to debate and vote on the nomination. It is time 
finally for the Senate to vote. The American people expect us to vote. 
The security of this country is threatened.
  Jim Cole's nomination was pending last year for 5 months while 
Republican Senators objected time and time again to calling it up for a 
vote. I believe that Mr. Cole would have been confirmed by the Senate 
had his nomination been given an up-or-down vote. I believe he should 
be confirmed. As it was, after the Senate did not take final action on 
the nomination, President Obama exercised his authority after the 
Senate had recessed for the year to appoint him in order to make sure 
this critical national security and law enforcement post was filled. 
The President promptly renominated him when Congress returned this 
year. Recess appointments have not prevented Republican Senators from 
voting to confirm nominations by Republican Presidents. Given the 
history of obstruction of this nomination, it is time for the Senate to 
vote.
  This is not a nomination that should have been controversial. It is a 
nomination supported by former Republican Senator Jack Danforth, who 
worked with Jim Cole for more than 15 years. When he introduced Mr. 
Cole at his confirmation hearing, Senator Danforth described Mr. Cole 
as someone without an ideological or political agenda. He also wrote to 
the committee that ``Jim is a `lawyer's lawyer.' He is exceedingly 
knowledgeable, especially on matters relating to legal and business 
ethics, public integrity and compliance with government regulations. He 
is highly regarded [] as a skillful litigator. As his resume 
demonstrates, he has a long and deep experience in the Department of 
Justice.'' I agree.
  Jim Cole served as a career prosecutor at the Justice Department for 
a dozen years and has a well-deserved reputation for fairness, 
integrity and toughness. He has demonstrated that he understands the 
issues of crime and national security that are at the center of the 
Deputy Attorney General's job. Nothing suggests that he will be 
anything other than a steadfast defender of America's safety.
  We have received numerous letters of support for the nomination of 
Jim Cole to be Deputy Attorney General, including letters from many 
former Republican public officials. I ask unanimous consent that these 
three letters be printed in the Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. LEAHY. Among these is a letter from Michael Toner, former Chief 
Counsel of the Republican National Committee and former General Counsel 
to the Bush-Cheney 2000 Campaign, who wrote ``[i]n light of his 
extensive experience, legal acumen, professionalism and integrity, I 
can think of no better person than Mr. Cole to serve as Deputy Attorney 
General.''
  Chuck Rosenberg, former Chief of Staff for Deputy Attorney General 
James Comey, who served under President George W. Bush, wrote, ``I know 
how important it is for this crucial position to be filled by the right 
person. Jim is the right person. He is smart, experienced, thoughtful 
and has the proper skills and temperament to help Attorney General Eric 
Holder lead the Justice Department.''
  In his letter recommending Mr. Cole, Michael J. Madigan, a Republican 
counsel on many high-level Senate investigations, described Mr. Cole as 
``one of those somewhat rare individuals in this city about whom you 
will never hear even the mildest of criticism.'' He concluded that Mr. 
Cole ``is a good man and perfectly suited for the challenging position 
for which the President has wisely nominated him.''
  Mr. Cole's critics have been wrong to try to blame him for the 
actions of AIG. His limited role was as an outside

[[Page 6834]]

monitor of other corporate functions and there is no evidence showing 
he did not perform his assignment well. Let us hold those responsible 
at AIG accountable. Not a single person at AIG has been. There is no 
basis for making Mr. Cole the scapegoat for the action of AIG. Blame 
the AIG agents and employees, blame its officers, blame its board, or 
even criticize the lack of oversight by state and Federal regulators 
and law enforcement officials if you like. But scapegoating this good 
man is wrong. As The Washington Post observed in an editorial last year 
when Mr. Cole's nomination was being blocked on the Senate floor, 
``There is no suggestion that Mr. Cole suffers from the kind of ethical 
or legal problems that would disqualify a nominee.''
  There is no justification for the failure to act on this critical 
national security nomination, and for failing to make sure that the 
administration has its full national security team in place. During the 
time when I was chairman we moved very quickly on President Bush's 
nominees for Deputy Attorney General because of the importance of the 
security of the United States. It is important for every President to 
succeed, no matter their party.
  I hope that the Senate will reject this destructive and unprecedented 
filibuster so that we can finally consider and confirm Jim Cole after 
many months of unnecessary delays. As I said, I could not remember a 
time in my 37 years here where we had filibustered a nominee to be 
Deputy Attorney General and that proved to be true.

                               Exhibit 1


                                                   Bryan Cave,

                                     Washington, DC, June 7, 2010.
     Hon. Patrick J. Leahy,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
     Hon. Jeff Sessions,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator Leahy and Senator Sessions: I write in strong 
     support of Jim Cole's nomination to serve as Deputy Attorney 
     General of the United States.
       By way of background, I am a Partner at Bryan Cave LLP in 
     Washington, DC. Prior to joining Bryan Cave, I was Chairman 
     of the Federal Election Commission (FEC) and was a 
     Commissioner on the FEC from 2002-2007. Prior to being 
     appointed to the FEC, I served as Chief Counsel of the 
     Republican National Committee, General Counsel of the Bush-
     Cheney 2000 Campaign, and General Counsel of the 2000 Bush-
     Cheney Transition Team.
       I have known Jim Cole for approximately 15 years and have 
     had the privilege of being a colleague of Mr. Cole's at Bryan 
     Cave for the last three years. I first met Mr. Cole when he 
     served as Special Counsel for the House Ethics Committee's 
     inquiry concerning Speaker Gingrich and I was an attorney 
     representing Speaker Gingrich in the matter. Although Mr. 
     Cole and I obviously had conflicting interests in the 
     Gingrich matter, I was tremendously impressed with the 
     thoroughness and professionalism by which Mr. Cole conducted 
     himself in the Gingrich matter, and that has been a hallmark 
     of all of my experiences with Mr. Cole over the last 15 
     years.
       Mr. Cole is superbly qualified to serve as Deputy Attorney 
     General of the United States. Mr. Cole is one of the smartest 
     and most able criminal lawyers in the country, and Mr. Cole's 
     prior service at the Justice Department will be invaluable 
     experience in working with Attorney General Holder in 
     managing and leading the Justice Department. In light of his 
     extensive experience, legal acumen, professionalism and 
     integrity, I can think of no better person that Mr. Cole to 
     serve as Deputy Attorney General.
       Jim Cole has my highest recommendation to serve as Deputy 
     Attorney General of the United States and it is an honor to 
     have the opportunity to write on Mr. Cole's behalf. If 
     confirmed, I believe that Mr. Cole would serve the Department 
     of Justice and the country with great distinction in the 
     years ahead.
           Sincerely,
     Michael E. Toner.
                                  ____



                                                Phelps Dunbar,

                                   New Orleans, LA, June 10, 2010.
     Re Nomination of Jim Cole to be next Deputy Attorney General 
         of the United States of America.

     Hon. Patrick J. Leahy,
     Chairman, Senate Judicial Committee,
     U.S. Senate, Russell Office Building, Washington, DC.
       Dear Senator Leahy: I am writing this letter to recommend, 
     without hesitation, Jim Cole to be confirmed as the next 
     Deputy Attorney General in the United States Department of 
     Justice.
       As a former United States Attorney in Louisiana, I worked 
     with Jim Cole when he prosecuted a corrupt federal judge. I 
     also have worked with Mr. Cole for more than a decade while 
     he worked in the private sector.
       I know Jim Cole to be bright, hard-working, dedicated and 
     beyond reproach. If confirmed by the United States Senate, I 
     believe Jim Cole will be an asset to both the Justice 
     Department and the citizens of the United States. I 
     respectfully ask you to consider my wholehearted support of 
     Jim Cole as the next Deputy Attorney General.
       I know that you, and the other members of the Judiciary 
     Committee as well as the Senate, strive for bipartisan 
     cooperation. As a Republican Presidential appointee, I 
     believe it is critical for members of the Justice Department 
     to have bipartisan support and the confidence of the American 
     people regardless of party affiliation. I appreciate your 
     consideration of my views as to the soundness of the 
     nomination of Jim Cole for Deputy Attorney General and would 
     welcome an opportunity to provide you with additional 
     information if you so choose.
       Thanking you again for your courtesies and with best 
     regards, I remain,
           Sincerely,
     Harry Rosenberg.
                                  ____



                                                       Orrick,

                                     Washington, DC, June 8, 2010.
     Re James M. Cole, Nominee for Deputy Attorney General.

     Hon. Patrick J. Leahy,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
     Hon. Jeff Sessions,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senators Leahy and Sessions: It is my great privilege 
     and honor to add my voice, wholeheartedly, to those 
     supporting the nomination of Jim Cole for the critically 
     important position of Deputy Attorney General of the United 
     States.
       I have known Jim for years and he is and has been a truly 
     outstanding lawyer and, most importantly, an even better 
     person. For the last two years I have had the honor of 
     serving with Jim on the ABA-DOJ Dialogue Group where he has 
     been an always thoughtful and important member.
       Jim, as you already know, has had an outstanding career 
     both as a federal prosecutor and as a criminal and civil 
     trial lawyer. Indeed, Jim, I dare say, is one of those 
     somewhat rare individuals in this city about whom you will 
     never hear even the mildest of criticism. He is a good man 
     and is perfectly suited for the challenging position for 
     which the President has wisely nominated him.
       I am honored to offer unqualified support for Jim's 
     nomination.
           Respectfully yours,
                                               Michael J. Madigan.

  Mr. LEAHY. I see the distinguished Senator from Texas is here, so I 
yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, the distinguished chairman of the 
Judiciary Committee has pointed out the Deputy Attorney General is a 
member of the national security team of the President, and the 
President has already used the authority under the Constitution to make 
a recess appointment of this nominee. But the question before the 
Senate today is whether the Senate should confirm the nomination of 
James Cole to serve as Deputy Attorney General.
  There are three reasons why I oppose this nomination. The first is 
Mr. Cole is one of the earliest and most vociferous advocates of 
bringing foreign al-Qaida terrorists to American cities for civilian 
trials--a position since repudiated by the Attorney General himself in 
the case of Khalid Shaikh Mohammed, and I am grateful for that. But Mr. 
Cole has never recanted his position that, in effect, these are 
criminal cases to be prosecuted as ordinary crimes rather than 
terrorist acts during a time of war.
  The problem, of course, with the paradigm of treating terrorism as a 
criminal case is that we don't punish the terrorists until they have 
actually been successful in committing a terrorist attack. In war, half 
the battle--maybe more than half the battle--is trying to stop the 
terrorist from actually accomplishing his or her goal of killing 
innocent people. We do that by interrogating detainees and finding out 
what they know about the organization and plans of terrorist attacks. 
Mr. Cole, unfortunately, stands by the outdated, outmoded 
characterization of these terrorist attacks being ordinary crimes. Of 
course, they are something much worse indeed.
  Quite frankly, as Mr. Holder's Deputy, Mr. Cole will only exacerbate 
the worst tendencies of the Department of Justice when it comes to 
distinguishing between criminal prosecutions and fighting a war against 
terrorists. This was, of course, the primary

[[Page 6835]]

reason why Mr. Cole's nomination was unanimously rejected by 
Republicans in the Judiciary Committee. The American people want a 
Department of Justice that is committed to enforcing the law and 
protecting the innocent, not creating new civil rights for terrorists 
or treating them as ordinary criminals when they are something else 
indeed.
  In fact, the recent death of Osama bin Laden was a product of a lot 
of intelligence gathering that occurred over the years. That would 
never have occurred under Mr. Cole's proposed model of Mirandizing 
these people when they are arrested; telling them they do not have to 
provide any information because they are being treated as ordinary 
criminals rather than as terrorists who are eligible for rough 
interrogation, if necessary, in order to find out what they know in 
order to save innocent lives.
  Rather than listening to the concerns of Republicans on the Judiciary 
Committee about Mr. Cole's narrow view of the war on terror and of the 
views of the American people and perhaps reconsidering this flawed 
nomination, the President decided to plow ahead and bypass the advise 
and consent process with a recess appointment. As I said, he, of 
course, has the right to do so.
  There are actually a couple other reasons why I oppose the 
nomination, and I wish to first express my appreciation to Senator 
Chambliss and Senator Grassley. Senator Chambliss, of course, is the 
ranking member of the Senate's Select Committee on Intelligence, and 
Senator Grassley is the ranking member of the Senate Judiciary 
Committee. They have continued to demand information from the 
Department of Justice and have been stonewalled at every turn. Senator 
Chambliss and his colleagues on the Intelligence Committee have made 
perfectly reasonable requests consistent with the committee's oversight 
responsibilities related to the Obama administration's Guantanamo 
Detainee Review Task Force. Senator Grassley, on the other hand, from 
his position as the ranking Republican on the Judiciary Committee, on 
which I serve, has requested documents concerning serious allegations 
that the Bureau of Alcohol, Tobacco, Firearms and Explosives knowingly 
allowed straw purchasers to buy firearms which were then provided to 
criminal drug cartels in Mexico. It has later been reported that at 
least two of these weapons were found at the scene where a Border 
Patrol agent named Brian Terry was murdered.
  I fully support Senators Grassley and Chambliss and regret that 
repeated requests for information that were well within the purview of 
the oversight responsibilities of Congress have been unreasonably 
rejected. When a minority in the Senate is denied the usual and 
customary information necessary for us to do our job, we are left with 
very few options. One of those options is to force a resolution by 
exercising our rights as a minority to block cloture. That is not 
necessarily a permanent move. It means debate continues on the 
nomination and we cannot come to a vote. But I submit, if rational 
minds would come together--if Senator Grassley and Senator Chambliss 
could get the information they and their committees are entitled to and 
discharge their oversight responsibilities--we could come much closer 
to resolving the differences on this particular nominee.
  Mr. CHAMBLISS. Mr. President, I rise in opposition to cloture on the 
nomination of James Cole to be the Deputy Attorney General of the 
United States.
  Last December, I objected to further consideration of Mr. Cole's 
nomination because of the refusal of the Department of Justice, DOJ, to 
comply with reasonable document requests from the Senate Select 
Committee on Intelligence. Unfortunately, the President decided to 
circumvent the Senate and recess-appointed Mr. Cole on December 29, 
2010.
  Here we are 5 months later: the Justice Department is still thwarting 
the Intelligence committee's oversight.
  The documents we have requested all relate to the Guantanamo Detainee 
Review Task Force that made recommendations to the Administration on 
whether to transfer, release, or detain Gitmo detainees. Over 2 years 
ago, the committee became aware of rising recidivism rates among former 
Gitmo detainees. At that time, the rate was around 11 percent--it is 
now above 25 percent. Congress has a unique obligation to the American 
people to ensure that no more dangerous detainees are released from 
Gitmo, and that those who have been released do not resume their 
terrorist ways. Each one of the documents we are seeking is essential 
to understanding why the task force made certain recommendations about 
certain detainees, especially those detainees our intelligence 
professionals judged were too dangerous to transfer.
  The detainees remaining at Gitmo are among the worst of the worst, 
yet many are still designated for transfer. Given the upward trend in 
recidivism rates, the Intelligence Committee is reasonably concerned 
that some of the detainees who have been or may be transferred to third 
countries will reengage in terrorist activities. Lingering questions 
about the monitoring capabilities of countries that have accepted 
detainees add to these concerns.
  In making its recommendations, the task force operated under guidance 
and recommendations from the Attorney General. The Department of 
Justice, however, refuses to provide a September 2009 Attorney General 
memorandum that reportedly recommends that an entire category of 
detainees be presumed to be eligible for transfer. If classes of 
detainees are to be presumed to be eligible for transfer by DOJ, then I 
think the Intelligence Committee should know about it and why such 
guidance was considered appropriate.
  The Department has also refused to provide the Intelligence committee 
with the task force's recommendations for the disposition of the 
detainees. The task force documents we have been given have entire 
portions of their recommendations blacked out. This is no way to 
conduct oversight and it certainly puts the committee at a disadvantage 
in trying to understand why transfer decisions were made. 
Interestingly, the Department has provided the recommendations made by 
review boards during the previous administration.
  As with the September 2009 memorandum, the Department argues against 
giving this information to Congress because of ``deliberative 
process.'' That assertion may work in a FOIA case or in the context of 
executive privilege, but there is no legal basis for using it to deny 
congressional oversight, especially where the documents pertain to 
national security matters. It is time for the Justice Department to 
abandon this baseless argument and give us the documents.
  The Intelligence committee is also waiting for a list of the 92 
detainees who were approved for transfer as of August 28, 2009, prior 
to the application of the September 2009 memorandum. The Department 
indicated in November 2010 that the list would be provided, but the 
committee has yet to receive it.
  Last Friday, we heard from the Department for the first time in 
months, wanting to work something out on the documents in advance of 
the cloture vote on the Cole nomination. This is a bit ironic, 
considering that letters and e-mails from last year have gone 
unanswered. The best thing they can do now is to honor our request and 
give us the documents that we have requested.
  The Department's obstruction of a congressional review is not the 
only reason I am opposing cloture. Mr. Cole still has not explained 
comments he made about the 9/11 attacks. In September 2002, he wrote an 
op-ed in which he called these attacks ``criminal acts of terrorism 
against a civilian population.'' Following this logic, he diminished 9/
11 to being no more than ``the scourge of the drug trade, the reign of 
organized crime, and countless acts of rape, child abuse, and murder.'' 
He also argued that the protections of our criminal justice system 
``must be applied to everyone to be effective.'' I could not disagree 
more with this statement--no terrorist deserves the benefits of our 
criminal justice system.

[[Page 6836]]

  Mr. Cole has neither rejected these comments, nor really explained 
why he made them. Until he does so, I have to question his judgment and 
his suitability to be the second-in-command at the Justice Department.
  It is for these reasons, I cannot support cloture on the nomination 
of Mr. Cole at this time.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill 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 ask for the regular order.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order and pursuant to rule 
XXII, the Chair lays before the Senate the pending cloture motion, 
which the clerk will state.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the nomination of 
     James Michael Cole, of the District of Columbia, to be Deputy 
     Attorney General.
         Harry Reid, Patrick J. Leahy, Herb Kohl, Dianne 
           Feinstein, Al Franken, Christopher A. Coons, Richard 
           Blumenthal, Amy Klobuchar, Sheldon Whitehouse, Sherrod 
           Brown, Mark Udall, Richard J. Durbin, Thomas R. Carper, 
           Bernard Sanders, John D. Rockefeller IV, Jeanne 
           Shaheen, Charles E. Schumer.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of James Michael Cole, of the District of Columbia, to be 
Deputy Attorney General shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer), 
the Senator from Louisiana (Ms. Landrieu), and the Senator from Vermont 
(Mr. Sanders) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Wyoming (Mr. Barrasso), the Senator from South Carolina (Mr. 
Graham), the Senator from Utah (Mr. Hatch), the Senator from Arizona 
(Mr. McCain), the Senator from Kansas (Mr. Moran), the Senator from 
Pennsylvania (Mr. Toomey), and the Senator from Louisiana (Mr. Vitter).
  Further, if present and voting, the Senator from Utah (Mr. Hatch) 
would have voted ``nay.''
  The yeas and nays resulted--yeas 50, nays 40, as follows:

                       [Rollcall Vote No. 67 Ex.]

                                YEAS--50

     Akaka
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Coons
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson (SD)
     Kerry
     Klobuchar
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Manchin
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Rockefeller
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--40

     Alexander
     Ayotte
     Blunt
     Boozman
     Brown (MA)
     Burr
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Enzi
     Grassley
     Heller
     Hoeven
     Hutchison
     Inhofe
     Isakson
     Johanns
     Johnson (WI)
     Kirk
     Kyl
     Lee
     McConnell
     Murkowski
     Paul
     Portman
     Reid
     Risch
     Roberts
     Rubio
     Sessions
     Shelby
     Snowe
     Thune
     Wicker

                             NOT VOTING--10

     Barrasso
     Boxer
     Graham
     Hatch
     Landrieu
     McCain
     Moran
     Sanders
     Toomey
     Vitter
  The PRESIDING OFFICER (Mr. Manchin). On this vote, the yeas are 50, 
the nays are 40. Three-fifths of the Senators duly chosen and sworn not 
having voted in the affirmative, the motion is rejected.
  The majority leader is recognized.
  Mr. REID. Mr. President, I enter a motion to reconsider the vote by 
which cloture was rejected.
  The PRESIDING OFFICER. The motion is entered.

                          ____________________