[Congressional Record (Bound Edition), Volume 157 (2011), Part 7]
[Senate]
[Pages 10114-10122]
[From the U.S. Government Publishing Office, www.gpo.gov]




                             STEALTH SURVEY

  Mr. KIRK. Madam President, I rise with great concern regarding a 
program just revealed in the Sunday New York Times--outstanding work by 
Robert Pear--``U.S. Plans Stealth Survey on Access to Doctors.'' I am 
asking my colleagues to join me in sending a letter to Secretary 
Sebelius, sharing our concerns with the legality, standards, and 
repercussions of this program.
  I have deep concerns regarding the Department's recent plans for this 
so-called stealth survey, its legality, the notification to Congress, 
the lack of standards for any misconduct or bad reporting by the staff 
hired to carry out this work in looking clandestinely at American 
doctors and their practice of medicine. The cost and proposed 
clandestine method of collecting information about physicians' offices 
is questionable. Therefore, I will be requesting details on how this 
survey will be conducted and how investigators will be punished for 
misconduct or extortion they may carry out in their duties and how 
patient and physician confidentiality will be maintained.
  In our letter, we are outlining 12 key questions.
  No. 1. Since there are already a number of surveys answering this 
question, does this expenditure of taxpayer money add anything? We are 
asking for the Department to provide detailed records of their 
literature review on the current research that has already been 
published on the subject before launching this taxpayer-funded expense. 
We are also asking for the total cost of this program to be revealed.
  No. 2. We are asking for records on how the National Opinion Research 
Center of Chicago, IL, won a Federal competitive bid to carry out this 
work.
  No. 3. In concluding the results of this survey, how will the NORC 
decide what qualifies as an acceptable response or best practices from 
physicians they have targeted?
  No. 4. How will patient and doctor confidentiality be maintained? If 
researchers report bad information or use this survey for extortion, 
bribery or other acts, how will they be disciplined?
  No. 5. Once concluded, who has access to this information--the 
Department, the White House, the Congress, the press?
  No. 6. By what criteria will individual physicians be targeted for 
participation? Will age, average incomes, surrounding office locations 
or political affiliation be excluded from factors considered when 
targeting physicians?
  No. 7. Will Federal employees carry out this work or will it be 
conducted by a contracted call center for data collection? Also, who is 
qualified to conduct this survey and how will they be chosen?
  No. 8. If the staff improperly releases patient or physician data, 
how will they be disciplined?
  No. 9. I would like their description of the fiscal year 2011 
Appropriations Committee program or account under which this was 
funded.
  No. 10. I am also requesting a description of the statutory 
authorization used to carry out this work and the congressional 
notifications informing the committees of jurisdiction of their intent 
to obligate funds for this purpose.
  No. 11. I am also asking for specific sections identified in the 
President's budget under which the funding for this work was requested.
  No. 12. If a physician wishes to correct data collected by the NORC, 
what legal redress does he or she have?
  There have been a number of very reliable studies which confirm that 
many patients on Medicaid and Medicare cannot find a doctor to see 
them. Previous studies also confirm that we do not have enough doctors, 
particularly primary care doctors. We all know government programs 
often provide poor service and suffer from funding failures or 
corruption.
  In this time of serious fiscal constraint, I urge us to focus our 
limited Federal resources on ways we can actually address these 
problems rather than launch another taxpayer-funded spending program to 
clandestinely review the work of our physicians.
  I yield the floor and suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. KYL. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. KYL. Madam President, I ask unanimous consent that I be allowed 
to speak as in morning business for up to 7 minutes.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                              The Deficit

  Mr. KYL. Madam President, I just wish to bring to my colleagues' 
attention a very well-written but disturbing op-ed in today's Wall 
Street Journal by one of our country's foremost economists, a person 
whose calculations and prognostications we should not lightly lay 
aside, Larry Lindsey.
  In this piece, entitled ``The Deficit Is Worse Than We Think,'' he 
posits three reasons why we need to get serious about deficit 
reduction. I will just mention the three reasons, put this op-ed in the 
Record, and make a comment or two about it.
  First, he says, if interest rates in this country go back to their 
historic levels, we would have annual interest expenses on our debt 
roughly $420 billion higher in 2014 and $700 billion higher in 2020, 
and the 10-year rise in interest rates would be about $4.9 trillion 
higher than under the current cost of borrowing. That would obviously 
wipe out any savings, and then some, that we are trying to achieve in 
our deficit reduction discussions.
  The second problem is, the official forecasts for growth are probably 
far too rosy considering the current circumstances. If we were to grow 
at a rate that he believes is much more realistic than those projected 
by the President's budget, we will miss the President's budget number 
by a cumulative 5.2 percentage points and incur an additional debt of 
$4 trillion, which is the equivalent to all the 10-year savings in the 
budget that passed the House of Representatives.

[[Page 10115]]

  Third, the cost estimates for what we call ObamaCare are going to be 
well off the mark, unfortunately, on the low end, that the 
prognostications by people who have surveyed the businesses that will 
either keep their insurance or turn that cost over to the government 
will result in an extra bill for the taxpayers of roughly $74 billion 
in 2014, rising to $85 billion in 2019 because of the subsidies that 
the government will have to pay into that.
  His conclusion is:

       Only serious long-term spending reduction in the 
     entitlement area can begin to address the nation's deficit 
     and debt problems.

  Because that is where the bulk of the money we spend goes. I think he 
is absolutely correct. But if he is correct about these projections, 
then we are not even close to achieving the savings we need to have in 
order to avoid a cataclysmic future for our country.
  Also, as noted today in an article from the Arizona Republic, the 
growth rate for the first quarter of this year was 1.9 percent. The 
Associated Press is forecasting that for the next quarter it will be 
2.3 percent. That is way lower than any of us would like. It is too 
anemic to even keep up with our population in terms of job growth. This 
article notes:

       The economy has to grow 3 percent a year just to hold the 
     unemployment rate steady and keep up with population growth. 
     And it has to average about 5 percent growth for a year to 
     lower the unemployment rate by a full percentage point. It is 
     9.1 percent today.

  So we can see we are growing at less than half the rate needed to 
begin to make a dent in unemployment. This bodes very badly for our 
future.
  Finally, in a National Review Online piece today by Andrew Stiles, 
there is this reference to a Harvard economist, Alberto Alesina. I will 
quote from this article.

       Alberto Alesina, a Harvard economist who has analyzed the 
     ways in which various countries responded to large fiscal 
     crises, concludes that spending cuts are ``much more 
     effective'' than tax increases in stabilizing the debt 
     without harming the economy. ``In fact, in several episodes, 
     spending cuts adopted to reduce deficits have been associated 
     with economic expansions rather than recessions,'' Alesina 
     writes. These findings were echoed in a report from Goldman 
     Sachs analysts Ben Broadbent and Kevin Day, which examined 
     ``every major fiscal correction in the OECD since 1975.''

  The point of all these things is the projections about economic 
growth, about increases in interest rates and expenditures by the 
Federal Government all point to the need for us to reduce our expenses 
at the Federal Government level and that spending cuts are a much more 
effective way to stabilize the debt and not hurt the economy than tax 
increases.
  I say all this because, as everyone by now knows, the negotiations 
that were being conducted under the auspices of Vice President Biden 
have broken down over the issue of whether tax cuts have to be a part 
of the resolution of the issue. The point is--the point we have been 
making is--tax increases in times such as these, when we are trying to 
come out of a recession and we need economic growth, would be the wrong 
medicine for this ailing economy, that the better way to do it is by 
spending reductions. It is obvious from Larry Lindsey's piece that the 
spending reductions we have been talking about, far from being 
Draconian, are actually not nearly enough in order to achieve the 
result we have to have to avoid the kind of interest rate increases and 
increased costs at the Federal Government level that he predicts.
  I hope my colleagues will think again as to the sort of ideological 
commitment they have to raising taxes. In the context of today's issue, 
that should not be part of our discussion. That will only hurt the 
economy, inhibit job creation and economic growth, and delay the day 
when we begin to recover from this economic downturn. Instead, we need 
to focus on the kind of spending reductions that were embodied in the 
budget that the House of Representatives passed and that those of us on 
this side of the aisle have been trying to put forward as a condition 
for increasing the debt ceiling.
  Madam President, I ask unanimous consent to have printed in the 
Record the Wall Street Journal op-ed by Lawrence Lindsey.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the Wall Street Journal, June 27, 2011]

 The Deficit Is Worse Than We Think--Normal Interest Rates Would Raise 
Debt-Service Costs by $4.9 Trillion Over 10 Years, Dwarfing the Savings 
              From Any Currently Contemplated Budget Deal

                        (By Lawrence B. Lindsey)

       Washington is struggling to make a deal that will couple an 
     increase in the debt ceiling with a long-term reduction in 
     spending. There is no reason for the players to make their 
     task seem even more Herculean than it already is. But we 
     should be prepared for upward revisions in official deficit 
     projections in the years ahead--even if a deal is struck. 
     There are at least three major reasons for concern.
       First, a normalization of interest rates would upend any 
     budgetary deal if and when one should occur. At present, the 
     average cost of Treasury borrowing is 2.5%. The average over 
     the last two decades was 5.7%. Should we ramp up to the 
     higher number, annual interest expenses would be roughly $420 
     billion higher in 2014 and $700 billion higher in 2020.
       The 10-year rise in interest expense would be $4.9 trillion 
     higher under ``normalized'' rates than under the current cost 
     of borrowing. Compare that to the $2 trillion estimate of 
     what the current talks about long-term deficit reduction may 
     produce, and it becomes obvious that the gains from the 
     current deficit-reduction efforts could be wiped out by 
     normalization in the bond market.
       To some extent this is a controllable risk. The Federal 
     Reserve could act aggressively by purchasing even more bonds, 
     or targeting rates further out on the yield curve, to slow 
     any rise in the cost of Treasury borrowing. Of course, this 
     carries its own set of risks, not the least among them an 
     adverse reaction by our lenders. Suffice it to say, though, 
     that given all that is at stake, Fed interest-rate policy 
     will increasingly have to factor in the effects of any rate 
     hike on the fiscal position of the Treasury.
       The second reason for concern is that official growth 
     forecasts are much higher than what the academic consensus 
     believes we should expect after a financial crisis. That 
     consensus holds that economies tend to return to trend growth 
     of about 2.5%, without ever recapturing what was lost in the 
     downturn.
       But the president's budget of February 2011 projects 
     economic growth of 4% in 2012, 4.5% in 2013, and 4.2% in 
     2014. That budget also estimates that the 10-year budget cost 
     of missing the growth estimate by just one point for one year 
     is $750 billion. So, if we just grow at trend those three 
     years, we will miss the president's forecast by a cumulative 
     5.2 percentage points and--using the numbers provided in his 
     budget--incur additional debt of $4 trillion. That is the 
     equivalent of all of the 10-year savings in Congressman Paul 
     Ryan's budget, passed by the House in April, or in the 
     Bowles-Simpson budget plan.
       Third, it is increasingly clear that the long-run cost 
     estimates of ObamaCare were well short of the mark because of 
     the incentive that employers will have under that plan to end 
     private coverage and put employees on the public system. 
     Health and Human Services Secretary Kathleen Sebelius has 
     already issued 1,400 waivers from the act's regulations for 
     employers as large as McDonald's to stop them from dumping 
     their employees' coverage.
       But a recent McKinsey survey, for example, found that 30% 
     of employers with plans will likely take advantage of the 
     system, with half of the more knowledgeable ones planning to 
     do so. If this survey proves correct, the extra bill for 
     taxpayers would be roughly $74 billion in 2014 rising to $85 
     billion in 2019, thanks to the subsidies provided to 
     individuals and families purchasing coverage in the 
     government's insurance exchanges.
       Underestimating the long-term budget situation is an old 
     game in Washington. But never have the numbers been this 
     large.
       There is no way to raise taxes enough to cover these 
     problems. The tax-the-rich proposals of the Obama 
     administration raise about $700 billion, less than a fifth of 
     the budgetary consequences of the excess economic growth 
     projected in their forecast. The whole $700 billion collected 
     over 10 years would not even cover the difference in interest 
     costs in any one year at the end of the decade between 
     current rates and the average cost of Treasury borrowing over 
     the last 20 years.
       Only serious long-term spending reduction in the 
     entitlement area can begin to address the nation's deficit 
     and debt problems. It should no longer be credible for our 
     elected officials to hide the need for entitlement reforms 
     behind rosy economic and budgetary assumptions. And while we 
     should all hope for a deal that cuts spending and raises the 
     debt ceiling to avoid a possible default, bondholders should 
     be under no illusions.
       Under current government policies and economic projections, 
     they should be far more concerned about a return of their 
     principal in 10 years than about any short-term delay in a 
     coupon payment in August.

  Mr. KYL. Madam President, I suggest the absence of a quorum.

[[Page 10116]]

  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. GRASSLEY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. GRASSLEY. Madam President, I assume that we are now on the Cole 
nomination?
  The ACTING PRESIDENT pro tempore. We are on the nomination.
  Mr. GRASSLEY. Madam President, earlier this year the Senate expressed 
its opposition to proceeding to Mr. Cole's nomination when it failed to 
invoke cloture. I was a strong advocate against the Senate invoking 
cloture on Mr. Cole's nomination because the Justice Department had 
failed to respond to a legitimate oversight request that both Senator 
Chambliss and I made relating to two separate topics.
  The Justice Department was withholding vital documents related to my 
inquiry of the Bureau of Alcohol, Tobacco and Firearm's Operation Fast 
and Furious and to an inquiry by Senator Chambliss in his capacity as 
vice chairman of the Select Committee on Intelligence.
  As ranking member of the Judiciary Committee, I have been seeking and 
still seek documents, information, and access to witness interviews to 
determine who approved Operation Fast and Furious. This was an 
operation that you have heard me talk about often where ATF agents were 
ordered to knowingly allow straw buyers to obtain weapons on behalf of 
criminals and traffickers intent on smuggling those weapons into 
Mexico.
  The courageous agents who blew the whistle and testified about their 
efforts to warn supervisors about the dangers referred to this practice 
as ``walking guns.'' Of the more than 1,800 weapons allowed to 
``walk,'' hundreds have been recovered in connection with crimes in the 
United States and Mexico, including two such weapons in connection with 
the murder of Border Patrol agent Brian Terry.
  After seeking information from the Justice Department, I was 
repeatedly told that the ATF did not knowingly allow these sales. 
Working with Congressman Issa, who is chairman of the House Government 
Oversight Committee, we released information that showed that the 
initial denials were false. This risky policy was, in fact, implemented 
at ATF and the Justice Department.
  Despite the seriousness of the whistleblowers' allegations and my 
repeated inquiries, the Justice Department continued to deny me access 
to the documents. As a result, I urged my colleagues to oppose cloture 
on James Cole to be Deputy Attorney General. Well, that cloture 
opposition worked. We have since reached an agreement with the Justice 
Department and Senator Leahy that will guarantee my access to vital 
document information and witnesses regarding this ATF operation.
  I also understand that Senator Chambliss has reached an agreement on 
obtaining the information he has sought on behalf of the Intelligence 
Committee. Accordingly, I now lift my opposition to the Senate holding 
a vote on Mr. Cole's nomination. However, I want to explain that I am 
going to vote against his nomination for many reasons.
  I oppose the nomination of James Cole to be Deputy Attorney General 
at the Department of Justice because I have serious concerns regarding 
Mr. Cole's qualifications. In addition, I 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 on 
committees where I have been chairman or ranking member. Whenever the 
President bypasses the Senate; in other words, bypasses our 
confirmation of a person, by making a recess appointment, such nominees 
will not receive my support where I have been lead on my side 
responsible for reviewing such nominees.
  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. The Deputy Attorney General 
is second in command at the Justice Department and is 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 
leader who has the smarts, the capability, and the willingness to 
manage Department programs and root out inefficiencies and abuse in 
those programs.
  After reviewing all of his responses and his hearing testimony, I 
concluded that I could not support Mr. Cole's nomination to be Deputy 
Attorney General. In particular, I am seriously concerned about Mr. 
Cole's views on national security and on terrorism. Back in 2002, Mr. 
Cole was author of an opinion piece in the Legal Times. In that piece 
he stated:

       For all the rhetoric about war, the September 11 attacks 
     were criminal acts of terrorism against a civilian 
     population, much like 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 those horrible acts 
     were successfully tried and convicted under our criminal 
     justice system without the need for procedures that altered 
     traditional due process rights.

  But I want to quote further.

       The acts of September 11th 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 engrained in our criminal justice system.''
  Mr. Cole concluded 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 ingrained in our criminal justice system to even including 
terrorists captured on foreign battlefields.
  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 accept this opinion piece as 
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 inquiry, 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 that 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 opinion, his testimony and responses to our 
questions, and reach any different conclusion.
  In fact, my concerns about the individuals at the Justice Department 
supporting prosecution of terrorists in civilian criminal court have 
been validated by recent events surrounding the arrest of two Iraqi 
nationals at Bowling Green, KY. These Iraqi nationals have admitted 
targeting American troops in Iraq, plotting to equip foreign fighters 
in Iraq with weapons such as grenades and missile launchers. They made 
their way to our country and somehow got past the Department of 
Homeland Security.
  After they were identified, the Justice Department is seeking to try 
them in civilian court even though their activities regarded terrorist 
activities and took a very military approach.
  Attorney General Holder has been steadfast in supporting their 
prosecution in civilian court. It appears to me that no one in the 
Justice Department, including Mr. Cole, has objected to prosecuting 
these individuals in civilian court. This is despite the clear

[[Page 10117]]

nexus to the battlefield in Iraq. So it now appears the Justice 
Department, where Mr. Cole currently serves as a recess-appointed 
Deputy Attorney General, rewards terrorists who are smart enough to 
evade Homeland Security's determination on whether they can come to 
this country, and at the same time make their way from the battlefield 
with the same rights and privileges as American citizens. All of this 
occurred on Mr. Cole's watch as Deputy Attorney General.
  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. Because of his responses 
and testimony, I have serious concerns about his support for civilian 
trials for terrorists captured on a foreign battlefield. This is of 
particular concern, given that the Deputy Attorney General oversees the 
National Security Division at the Justice Department.
  Now for a second reason. I have concerns about Mr. Cole's abilities 
relative to oversight of government programs. We asked about oversight 
of the Department of Justice's grant programs. When he was asked, Mr. 
Cole failed to commit to a top-to-bottom review of the programs, nor 
has he undertaken such a review since he was recess appointed. Given 
the enormous Federal deficits and enough examples of the tremendous 
inefficiencies, duplications, and waste in these programs, one would 
assume the Deputy Attorney General would be looking for cost savings in 
the Department. I am disappointed Mr. Cole has failed to recognize that 
there is a need for a comprehensive review of Justice's grant 
programs--not only for the sake of saving taxpayer dollars at a time 
when we face skyrocketing fiscal deficits but also to ensure that grant 
objectives are being met in the most efficient and effective manner 
possible.
  A third reason. I have concerns about Mr. Cole's abilities based on 
his performance as an independent consultant tasked with overseeing the 
insurance firm 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.'' As a result of 
their being labeled ``Committee Confidential,'' I cannot discuss with 
specificity the contents 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 role as independent consultant. The responses and 
reports do not dispel the serious questions raised about Mr. Cole's 
independence or his completeness. Further, they reveal what appears to 
be a level of deference to AIG management one would not expect to see 
from someone tasked with the responsibility of being 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 the Department of Justice, the 
Securities and Exchange Commission, and the New York 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 added 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 process was necessary to an understanding of each 
party's position.''
  As a result, the reports did not necessarily show which edits AIG 
made that were incorporated. Instead, he said those changes were 
available in working papers that were ``available to the SEC, the DOJ, 
and 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 Department of Justice knew about 
edits AIG was making to the ``independent'' reports.
  In addition, I have serious concerns about Mr. Cole's decision to 
suspend compliance review at AIG's financial products division 
following the government bailout of AIG. In his testimony, Mr. Cole 
acknowledged that subsequent to 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 SEC regulations. Mr. Cole said 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 
dollars for a bailout, but was able to talk the independent 
consultant--Mr. Cole--out of monitoring what the company was doing.
  I am concerned about Mr. Cole's ability to perform the duties 
required of a Deputy Attorney General. In that role, he would be in a 
position to potentially influence future compliance monitors appointed 
under settlements with the Justice Department, the Securities and 
Exchange Commission, and other corporations that have violated the law. 
Independent monitors need to be truly independent and, of course, 
completely transparent. They are selected and appointed to ensure the 
interests of the American people are protected.
  For these reasons, I cannot support the nomination of Mr. Cole to be 
Deputy Attorney General, and I urge my colleagues to do the same.
  Madam President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  The ACTING PRESIDENT pro tempore. The Senator from Maryland.
  Mr. CARDIN. Madam President, I am very pleased that soon we will be 
voting on Jim Cole to be the Deputy Attorney General of the United 
States. This is a person who puts principle over politics, a person who 
is very important in our war against terror and who will use all lawful 
tools to keep our Nation safe. So I am proud to take a few moments to 
urge my colleagues to vote for his confirmation. I think that is in our 
national security interests, and I know he will be and already is an 
incredible asset to this country in keeping us safe and doing so in the 
best traditions of the U.S. Attorney General's Office.
  I would like to talk for a moment on a personal basis because I got 
to know Jim Cole when I was serving in the House of Representatives. I 
was on the Ethics Committee. The Ethics Committee is not a committee, 
as you know, on which a Member asks to serve; it is something we must 
do.
  We had a very sensitive investigation in the House of Representatives 
concerning the Speaker of the House, Newt Gingrich, and the six of us 
who served on the Ethics Committee needed to come to a fair, 
nonpartisan conclusion to this very challenging investigation. To say 
we thought this would be impossible was an understatement of where we 
first thought we would be in regard to the investigation. But then we 
reached out and agreed to bring in an independent counsel to help us in 
our deliberations. That person was Jim Cole.
  Jim Cole worked with all of us to look at the facts and do what was 
in the best interests of the House of Representatives, the best 
interests of our country, and to leave our politics aside so that we 
could come out with a result that was fair and would restore confidence 
in the legislative process. In fact, we did that. We were able to reach

[[Page 10118]]

a totally unanimous judgment, one that was agreed to on the floor of 
the House of Representatives and I think spoke volumes about our 
ability to get our work done in the best interests of our Nation.
  I thought Jim Cole did a fabulous job, a great job in helping us. 
That was also the view of Porter Goss, who was the Republican leader on 
the Ethics Committee and chairman of the committee at the time. He said 
he felt Jim Cole brought professionalism at the highest level to our 
investigation and allowed us to come forward with a fair nonpartisan 
conclusion. That is the exact person we need in the Department of 
Justice. It is the person we need to be Deputy Attorney General of the 
United States.
  The Attorney General and the Deputy Attorney General are our Nation's 
lawyers. They don't represent one party; they represent our country. We 
need leadership in the Department of Justice who will work in a 
nonpartisan way, a way that will bring nonpartisan leadership to the 
Department of Justice. Jim Cole is that type of person. He has the 
experience, he has the character, and he has the commitment to fill 
this very important position in our Nation, with 13 years in the 
Department of Justice and experience in public interest law. His career 
has been devoted to the public interest in community service.
  I was listening to my colleague and friend Senator Grassley talk 
about his concerns about some of the private law practice of Jim Cole. 
Here is a person who has devoted his life basically to community and 
his career in public interest law. He has been a prosecutor. He has 
been a person who has dealt with white-collar criminals. And, yes, he 
is an effective attorney. As those of us who are lawyers know, we will 
represent our clients aggressively, but we don't lose sight of our 
system. That has been Jim Cole throughout his career. He will bring the 
expertise he has had in his previous experience to represent our Nation 
well. These are tough times. We are dealing with threats around the 
world where we need an Attorney General and a Deputy Attorney General 
who will use all lawful tools in order to protect our country.
  It is interesting that Jim Cole enjoys endorsement from both sides of 
the aisle. When we look at high-ranking Department of Justice former 
officials, both Democrats and Republicans have endorsed Jim Cole's 
confirmation to be the Deputy Attorney General.
  Let me quote from one Republican source that I think is typical of 
the endorsements we have received encouraging the confirmation of Jim 
Cole. We received a letter from Fred Fielding. I think most of you know 
Fred Fielding. He was White House Counsel for former President George 
W. Bush. I think most of us had close dealings with and respected him 
greatly in the service to the Bush administration. This is what Fred 
Fielding said about Jim Cole:

       Mr. Cole combines all the qualities you would 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.

  Well, I agree with Fred Fielding. This is the type of person we need 
to be Deputy Attorney General of the United States.
  I am pleased we are going to have this vote later on today. I 
encourage my colleagues to vote for his confirmation. It is important 
that we have individuals in these key positions who enjoy the full 
confirmation from the Senate, and I hope my colleagues will join me in 
supporting this nominee.
  Mrs. FEINSTEIN. Madam President, I rise in strong support of the 
nomination of Lisa O. Monaco to be the Assistant Attorney General for 
National Security that is before the Senate.
  The Assistant Attorney General for National Security is a fairly new 
position but a very important one, especially in a time of rapidly 
evolving threats to our nation and increasingly challenging legal 
questions about how to prepare for and combat those threats.
  As the Assistant Attorney General for National Security, Ms. Monaco 
would represent the government in Foreign Intelligence Surveillance 
Act, FISA, proceedings and sign off on applications to allow the 
government to move quickly to track down terrorists and spies operating 
against the United States. She will be the principal official in the 
Department of Justice for engaging with the intelligence community as 
agencies determine the authorities and limitations under the law.
  Ms. Monaco's confirmation is long overdue. She was approved 
unanimously by both the Senate Judiciary and Intelligence Committees 
last month after the May 1 strike against Osama bin Laden.
  Importantly for the Assistant Attorney General for National Security 
position, that operation netted a large cache of al-Qaida documents, 
communications, and videos that will, no doubt, lead to new 
counterterrorism leads.
  On May 8 National Security Adviser Tom Donilon was on ``Meet the 
Press,'' and he said, ``This is the largest cache of intelligence 
derived from the scene of any single terrorist. It's about the size, 
the CIA tells us, of a small college library.''
  In the past 2 months, intelligence and law enforcement professionals 
have been scouring that information for new threats, leads, and 
insights into al-Qaida and global terrorism. As the intelligence gained 
is turned into counterterrorism actions, Lisa Monaco will oversee those 
activities.
  The bottom line is that at this time of heightened potential threat 
of terrorism, the Attorney General, the intelligence community, and the 
entire administration need to have their team in place.
  Ms. Monaco was approved by the Senate Judiciary Committee on May 9 
and by the Senate Intelligence Committee on May 24, in both cases by 
unanimous vote. Both committees held nomination hearings for Ms. Monaco 
and for both committees, she completed prehearing and post-hearing 
questions. I know Ms. Monaco also had a chance to meet with members of 
both committees and it is clear she is impressive and well-qualified.
  There is no doubt that Ms. Monaco has the experience to be an 
effective Assistant Attorney General for National Security. Let me 
describe her background in more detail.
  Since February 2010, Lisa Monaco has served as the Principal 
Associate Deputy Attorney General or acted in that capacity, and she 
served as Associate Deputy Attorney General from January 2009 through 
February 2010.
  She also has considerable experience with the Federal Bureau of 
Investigation, having served as chief of staff to Director Robert 
Mueller, September 2007-January 2009.
  Ms. Monaco spent 6 years as an assistant U.S. attorney for the 
District of Columbia when she received the Attorney General's Award for 
Exceptional Service, the Department of Justice's highest award. She 
also received Department of Justice Awards for Special Achievement on 
three occasions, in 2002, 2003, and 2005.
  She received her law degree from the University of Chicago Law 
School, 1997, and her B.A. from Harvard University, 1990.
  Ms. Monaco's nomination has received support from a range of former 
senior officials of the FBI and Department of Justice, including former 
Attorney General Michael B. Mukasey and former Assistant Attorney 
General for National Security Kenneth L. Wainstein.
  So we see that Ms. Monaco's background and qualifications are 
impeccable. I strongly urge the Senate to approve her nomination to be 
the Assistant Attorney General and wish her success in this position.
  Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mrs. Gillibrand). The clerk will call the 
roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LEAHY. Madam President, I ask unanimous consent that the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Vermont.
  Mr. LEAHY. After extensive and unnecessary delays, the Senate will 
finally vote today on three important

[[Page 10119]]

nominations to fill high-level posts at the Department of Justice. Two 
of these positions have national security responsibilities. I have been 
here since the Ford administration, and I cannot recall a time when the 
Justice Department and the country were deprived of such critical 
appointees. Whether we had a Republican or Democratic President, we 
always quickly filled these kinds of national security positions. So it 
is hard to understand why we have not been able to vote on nominees for 
positions with significant national security responsibilities such as 
the Deputy Attorney General and the Assistant Attorney General for the 
National Security Division--especially when we are 2\1/2\ months away 
from the 10th anniversary of September 11.
  The nominations of Jim Cole to be Deputy Attorney General, Lisa 
Monaco to be Assistant Attorney General for National Security, and 
Virginia Seitz to be Assistant Attorney General for the Office of Legal 
Counsel have been blocked for months by Republican obstruction over 
matters not related to the qualifications of the nominees and in abject 
disregard of the needs of the Justice Department and the country. So I 
am glad that today we are finally going to vote and, I trust, confirm 
these superbly qualified nominees.
  The unprecedented filibuster of the nomination of the Deputy Attorney 
General has been especially egregious. The Deputy Attorney General is 
the No. 2 position at the Justice Department, and it is a position with 
key national security responsibilities. Despite significant bipartisan 
support and unquestionable qualifications, Jim Cole's nomination has 
been blocked for nearly a year. He was reported favorably by the Senate 
Judiciary Committee in July of last year--11 months ago--but the 
Republicans prevented a vote. He was renominated and reported favorably 
a second time in the middle of March, but Republicans stalled and 
filibustered consideration of the nomination last month. During my time 
in the Senate, I have seen the nominations of many Deputy Attorneys 
General. Every time they have been voted on favorably by the Senate 
Judiciary Committee--whether under Republican or Democratic control--
their nomination has been voted on within a matter of days on the 
Senate floor. This is the first time in the Nation's history that a 
President's nominee to serve as Deputy Attorney General was 
filibustered, and it was wrong.
  Jim Cole's nomination should not have been controversial. It is a 
nomination supported by former Republican Senator Jack Danforth, who 
was nominated by President Bush to be our Ambassador to the United 
Nations. Senator Danforth worked with Jim Cole for more than 15 years. 
When he introduced him at his confirmation hearing, Senator Danforth 
described Mr. Cole as someone without an ideological or political 
agenda. He also wrote to the committee:

       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 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 
is anything other than a steadfast defender of American safety.
  We have received numerous letters of support for Mr. Cole's 
nomination, including letters from many former Republican public 
officials. I put several of those letters in the Record last month. The 
Senate should have heeded those recommendations as well as the advice 
of former Deputy Attorneys General of the United States who served in 
both Republican and Democratic administrations. They wrote to us last 
December to urge the Senate to consider Mr. Cole's nomination without 
delay--last December--pointing out that the Deputy Attorney General 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. The Senate was wrong to filibuster 
this nomination. The Senate has the opportunity today to finally 
confirm this good man and public servant. I trust this institution will 
take that opportunity.
  Incredibly, the nomination of the Deputy Attorney General was 
subjected to a partisan filibuster for over three more months while the 
country faces concerns about terrorism in the aftermath of the 
President's successful operation against al-Qaida and Osama bin Laden. 
It is hard for me to understand how, at a time when experts are 
concerned that al-Qaida will seek reprisals, some in the Senate have 
delayed action to ensure that President Obama has his full national 
security team in place. No matter who is President, we should want that 
President to have their national security team in place for the good of 
all Americans.
  In the aftermath of 9/11, Senate Democrats expedited law enforcement 
and national security nominations, confirming an additional 58 
officials to posts at the Justice Department before the end of 2001. 
The Senate should have done the same with the nomination of Jim Cole. 
Senate Republicans should have treated Mr. Cole's nomination with the 
same urgency and seriousness with which Senate Democrats 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. No Deputy 
Attorney General nomination had ever been subjected to a filibuster 
before. That is what Senator Republicans did this year. It was wrong.
  In addition, Senate Republicans have blocked votes on the nomination 
of Lisa Monaco to head the National Security Division at the Justice 
Department, another key national security position. Her nomination has 
been blocked even though it was considered at hearings and reported 
unanimously, not only by the Judiciary Committee but also by the Senate 
Select Committee on Intelligence. She was reported unanimously by all 
Democrats and all Republicans in two key committees. Senator Grassley, 
Senator Chambliss and all the Republican members of the Senate 
Judiciary Committee and the Senate Select Committee on Intelligence 
voted for her. To have an almost 2-month delay has been incredible--she 
should have been confirmed right after her nomination was reported by 
the Intelligence and Judiciary Committees.
  Lisa Monaco's nomination has long been supported by former Justice 
Department officials, including former Attorney General Mukasey, who 
served during President George W. Bush's administration. He wrote:

       Based on my meetings and conversations with Ms. Monaco, I 
     believe that she has both sound judgment and a keen 
     understanding of national security law. Which is to say, she 
     understands both the stakes and the rules.

  The Monaco nomination to head the National Security Division at the 
Justice Department should have been confirmed before the Memorial Day 
recess. I have little doubt that she will be confirmed overwhelmingly. 
But the almost two-month delay is not excused by voting for her 
confirmation now. The National Security Division has been without her 
leadership. The national security team has been without another key 
member.
  Virginia Seitz is another superbly qualified nominee with bipartisan 
support who should have been confirmed before the Memorial Day recess, 
but whose nomination has been blocked from consideration by Senate 
Republicans. A Rhodes Scholar and former Supreme Court clerk, Ms. Seitz 
has received support for her nomination from some of the most 
preeminent lawyers in the country, including many who have served in 
Republican administrations. This nomination was also reported 
unanimously by the Judiciary Committee. All Republican members and all 
Democratic members voted for

[[Page 10120]]

her. Then Senate Republicans turned around and blocked her 
confirmation.
  I have seen the crocodile tears of some over the last few days as 
they lament the lack of an Office of Legal Counsel opinion on how the 
War Powers Act applied to the NATO-led operation in Libya. It is Senate 
Republicans who are responsible for having delayed and blocked the 
Office of Legal Counsel from having its Assistant Attorney General in 
place. Today, after 7 weeks of obstruction, the Senate will finally 
consider the nomination of Virginia Seitz.
  The treatment of these nominees is now carrying over to other 
nominations and important legislative initiatives, as well. Just last 
week we witnessed for the first time since the infamous partisan vote 
on the nomination of Ronnie White of Missouri, the spectacle of 
Republican Senators who had voted in favor of a nomination in committee 
switching to vote against the nomination when considered by the Senate. 
We have seen Republican Senators, who in consultation with the White 
House and Judiciary Committee approved a judicial nominee, flipping to 
oppose the nominee.
  The Senate Judiciary Committee has considered two national security 
bills during the last 2 weeks. Both times Republican Senators professed 
to support the legislation as they voted against it. The most critical 
and time sensitive is the bill before the Senate to authorize a limited 
extension of the term of service of FBI Director Robert Mueller, as the 
President has requested. The President made his request more than 6 
weeks ago in light of ``the ongoing threats facing the United States, 
as well as the leadership transitions at other agencies.'' He asked us 
``to join together in extending [Director Mueller's] leadership for the 
sake of our nation's safety and security.''
  Rather than join together as Senate Democrats did with the President 
following 9/11, 7 of the 8 Republican members of the Senate Judiciary 
Committee opposed the bill. We have to consider and pass that bill 
without delay. Both the House and Senate have to pass it before the 
August recess. With the tenth anniversary of the September 11, 2001, 
attacks approaching, and in the face of continuing threats in the wake 
of the President's recent, successful operation against Osama bin 
Laden, we need the continuity and stability of having FBI Director 
Mueller in place. Without enactment of this legislation, he will not 
be. He will be forced from that critical post on August 3.
  I urge all Senators, Democrats, Republicans and Independents, to join 
together for the good of the country to take quick action to pass the 
FBI extension, S. 1103. We cannot afford a repeat of the unnecessary 
delays that have held up these nominations finally considered today.
  I thank today's nominees for their dedication and look forward to 
working with them as they faithfully execute their important 
responsibilities at the Justice Department. I also thank their families 
for their patience and for the support they give these outstanding 
public servants. In my 37 years in the Senate I have never seen a time 
when so many good nominees are held up, even though eventually so many 
then go through unanimously. I wish Senators would stop and think for a 
moment: This is awfully hard on their spouses and their children. It is 
awfully hard among their friends who wonder, Is there something we 
don't know about? Why were they held up so long?
  We can all take our political positions--and should. We all vote--and 
should. But let's not take it out on the good Americans who want to 
serve their country, oftentimes at great sacrifice. Remember, we also 
take it out on their families.
  Madam President, I reserve the remainder of my time and 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. RUBIO. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded and to speak as in morning business.
  Mr. LEAHY. Madam President, reserving the right to object, I will not 
object. But insofar as many had planned to be here for the 12 o'clock 
scheduled votes, could the Senator from Florida tell me how long he 
wishes to take?
  Mr. RUBIO. Five minutes.
  Mr. LEAHY. I will not object, Madam President.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                                 libya

  Mr. RUBIO. Madam President, over the last 2 weeks, we have seen a 
deepening divide between the White House and Congress over Libya. It is 
a clash that was completely avoidable but also counterproductive.
  First, for the life of me, I do not understand why this 
administration did not bring this issue to the Congress from the 
outset. In the early days of the Libyan rebellion, the President should 
have come to the Congress, informed us that an armed rebellion had 
arisen against Libya's anti-American, criminal dictator; that the 
rebels were asking for our assistance in establishing a no-fly zone 
over Libyan air space so they could take care of the dictator 
themselves; and that with our support, he intended to work with our 
allies to establish such a no-fly zone.
  If this President had done this, I believe he would have found 
support here and Qadhafi would have been gone a long time ago.
  But instead, this administration waited. While it did, Qadhafi 
reestablished momentum and began to carry out a new level of atrocities 
unprecedented even by his murderous standards. And then, only with the 
Qadhafi mercenaries on the outskirts of Benghazi threatening to 
massacre thousands of innocent civilians, did the United States finally 
agree to participate.
  But even that was botched. First, we ceded most of the operation over 
to our NATO allies. God bless them for trying, but they do not have the 
military capability to finish the job.
  Second, the President never consulted Congress, again ignoring a co-
equal branch of government unnecessarily.
  And then, when finally he was pressed under the War Powers Act, he 
claims the United States is not involved in hostilities in Libya.
  Why we have reached this point is something history will have to 
explain. Suffice it to say, it didn't have to be this way. And the 
reason why it is is 100 percent the result of the President's failure 
to lead.
  Now, all that being said, we need to decide what to do next. This is 
not about hawks versus doves or interventionists versus isolationists 
or any of the other labels being thrown around here.
  And this cannot be about how upset any of us are at the President for 
botching the handling of this matter.
  What we do next should be decided based on what is in the best 
interest of our country.
  And here is the reality: Whether you agree with it or not, the United 
States is now engaged in a fight, and it is a fight that only has two 
possible endings.
  It can end with the fall of a brutal, criminal, anti-American 
dictator or it could end in that dictator's victory over our allies and 
us.
  I would suggest, given these two choices, the best choice for America 
is the first one, the fall of the anti-American dictator.
  Going forward, how do we do this? First, we should officially 
recognize the Transitional National Council.
  Second, we should provide additional resources to support the 
council, including access to Libyan funds frozen here in the United 
States. And by the way, we should also make sure the frozen funds are 
also used to reimburse us, the United States, for the cost of this 
operation.
  Third, we should intensify strike operations to target the Qadhafi 
regime and get rid of this guy once and for all, and as soon as 
possible.
  Then, fourth, we should go home and allow the Libyan people to build 
a new nation and a new future for themselves.
  I understand that, rightfully so, many here in the Congress and 
across America are weary of more war and

[[Page 10121]]

more overseas engagement during a time of severe budget constraints at 
home.
  But the fact remains, whether you agree with it or not, we are 
already involved. We are already involved in Libya. We have already 
spent a considerable amount of money there. Are we going to let all 
that go to waste? Are we prepared to walk away and get stuck with a 
lose-lose proposition? We spent all this money on Libya, and Qadhafi is 
still around?
  It is in our national interest to get this over with already.
  This afternoon, the Foreign Relations Committee will meet to consider 
a resolution on this matter. I am concerned that rather than push the 
President to do what is necessary to bring this conflict to a 
successful conclusion, some are pushing to restrict our campaign.
  No matter how you may feel about the original decision, we must now 
deal with the situation as it now stands. And the bottom line here is 
that if we withdraw from our air war over Libya, it will lengthen the 
conflict, increase the cost to American taxpayers, and raise doubts 
about United States leadership among friends and foes alike.
  Here is what withdrawal will mean in real terms:
  The coalition would quickly unravel. Qadhafi would emerge victorious, 
even more dangerous and determined to seek his revenge through 
terrorism against the countries in NATO and the Arab League that tried 
and failed to overthrow him.
  We would see a bloodbath inside Libya. This killer, Qadhafi, will 
unleash unspeakable horrors against the Libyan people. And the ripple 
effects will be felt across the Middle East. For example, the 
prodemocracy movements in places like Iran and Syria would conclude 
that they too might be abandoned and the dictators they oppose would be 
emboldened.
  Our disengagement would irreparably harm the NATO alliance.
  I fully understand the frustration at the way the President has 
handled this situation, but the answer to any problem is not to make it 
worse.
  Some may think what we do here this afternoon on the resolution is 
largely symbolic, simply intended to send a message to the White House.
  Yes, it will send a message to the President, but it will also send a 
message to Qadhafi and those around him.
  And here is the message that I fear we may send: That the coalition 
is breaking and the Qadhafi regime might yet win. I know that is not 
anyone's intention, but that is the very real risk we run.
  There is a better, more pragmatic way forward.
  Let's pass a resolution backing these activities.
  For those frustrated with the President's failure to adequately make 
the case for our involvement, our job in Congress is to push the 
administration to do a better job explaining our effort in Libya.
  Here is the good news: The tide in Libya appears to be turning 
against Qadhafi. The opposition in Benghazi has succeeded in expanding 
the territory under its control, breaking the siege laid by regime 
forces on Misrata, the country's third largest city.
  At the same time, the Qadhafi regime has been shaken by further 
defections and collapsing international support.
  Libya is at a critical juncture. And for the United States, there is 
only one acceptable outcome--the removal of the Qadhafi regime and, 
with it, the opportunity for the Libyan people to build a free and 
democratic society.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Madam President, I yield back all remaining time.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of James Michael Cole, of the District of 
Columbia, to be Deputy Attorney General?
  Mr. LIEBERMAN. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Wisconsin (Mr. Kohl), 
the Senator from West Virginia (Mr. Manchin), and the Senator from New 
Mexico (Mr. Udall) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 55, nays 42, as follows:

                       [Rollcall Vote No. 97 Ex.]

                                YEAS--55

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

                                NAYS--42

     Alexander
     Ayotte
     Barrasso
     Boozman
     Burr
     Chambliss
     Coats
     Coburn
     Cochran
     Corker
     Cornyn
     Crapo
     DeMint
     Enzi
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Hutchison
     Inhofe
     Isakson
     Johanns
     Johnson (WI)
     Kirk
     Lee
     McCain
     McConnell
     Moran
     Murkowski
     Paul
     Portman
     Risch
     Roberts
     Rubio
     Sessions
     Shelby
     Snowe
     Thune
     Toomey
     Vitter
     Wicker

                             NOT VOTING--3

     Kohl
     Manchin
     Udall (NM)
  The nomination was confirmed.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Virginia A. Seitz, of the District of 
Columbia, to be an Assistant Attorney General?
  The nomination was confirmed.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Lisa O. Monaco, of the District of 
Columbia, to be an Assistant Attorney General?
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motions to 
reconsider are considered made and laid upon the table, and the 
President shall be immediately notified of the Senate's action.
  Mr. RUBIO. Madam President, today, the Senate considered the 
nomination of James Cole to be deputy Attorney General of the United 
States. I voted against his nomination and want to explain my vote.
  Mr. Cole has been a vocal critic of the use of military commissions 
to try terrorists. Based upon my review of his record, it is apparent 
that he is an ardent supporter of the use of article III courts to try 
terrorists. He has advocated a criminal law approach to prosecuting 
terrorists. By way of example Mr. Cole has stated:

       For all the rhetoric about war, the September 11 attacks 
     were criminal acts of terrorism against a civilian 
     population.

  Testifying before the Judiciary Committee, he refused to say whether 
he favored a civilian or military trial for Osama bin Laden, should he 
be captured alive.

       I believe that such decisions should be made on a case-by-
     case basis, based on all the relevant factors and 
     circumstances available at the time of the suspect's capture.

  Additionally, under Mr. Cole's watch, the Justice Department has 
announced that it would try two Iraqi nationals who were arrested in 
Kentucky on charges related to attacking and killing U.S. troops in 
Iraq, in civilian courts.
  While Mr. Cole has the academic and legal background necessary to 
fill this position, his actions as Deputy Attorney General and history 
supporting civilian trials for terrorists clearly establishes that he 
will pursue an agenda that seeks to ensure that terrorists are tried in 
article III courts. These issues are of paramount concern and I cannot 
support a nominee who subscribes to these views. Accordingly, I had no 
choice but to oppose this nomination.

[[Page 10122]]



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