[Congressional Record (Bound Edition), Volume 159 (2013), Part 9]
[Senate]
[Pages 12487-12494]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF JAMES B. COMEY, JR., TO BE DIRECTOR OF THE FEDERAL BUREAU 
                       OF INVESTIGATION--Resumed

  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 assistant bill clerk read the nomination of James B. Comey, Jr., 
of Connecticut, to be Director of the Federal Bureau of Investigation.
  The PRESIDING OFFICER. Under the previous order, the time until 5:30 
p.m. shall be equally divided and controlled in the usual form.
  Mrs. MURRAY. Madam President, I ask unanimous consent that the quorum 
call be divided equally between the majority and minority.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. MURRAY. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mrs. MURRAY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


               Transportation and Housing Appropriations

  Mrs. MURRAY. Madam President, I want to notify all of our colleagues 
that Senator Collins and I have been working together with many of our 
colleagues on amendments to the transportation and housing bill over 
the past week. I want to be very clear--that work is continuing. The 
majority leader has made clear that we are going to keep working on 
amendments on that bill, so everybody should be prepared for more 
votes.
  I urge all of my colleagues to continue talking to me and to Senator 
Collins, and we will keep working to get as many amendments as 
possible.
  Many of you have approached us already with your plans and thoughts. 
I urge the rest of you not to wait until the last minute. Senator 
Collins and I are working with the floor staff to line up votes.

[[Page 12488]]

  I know everyone is anxious to have the August recess occur. We are as 
well. The sooner we can get the amendments and get this bill completed, 
the sooner all of us will be able to accomplish that.
  I know a number of our colleagues on the floor have noted that this 
has been an open process. That is what Senator Collins and I set out to 
do, and we are going to make sure that continues.
  This is a bipartisan bill. I will remind all of us that it got 6 
Republican votes in committee and 73 votes to proceed to the open 
debate we have had this past week. That debate, again, is going to 
continue. I am hopeful we can move to a bipartisan finish on a good 
bill that reflects great ideas from both sides of the aisle.
  I again want to thank Senator Collins for her work on this, and we 
are ready to move forward.
  I yield the floor to her at this time.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Thank you, Madam President.
  Colleagues, as the chairman of our subcommittee, Senator Murray, has 
pointed out, we are continuing to work through the amendments that have 
been filed on this bill.
  I do not think I need to remind any of our colleagues on either side 
of the aisle that the August recess is fast approaching and the Senate 
will have to wrap up its work on this bill before we adjourn.
  So I would say to my colleagues, if you have good ideas or even not 
so good ideas about this bill, we urge you to come to the floor and 
file your amendment and do so as soon as possible.
  As Chairman Murray has pointed out, there has been an open amendment 
process. We have disposed of some amendments; a couple through rollcall 
votes, a few others through unanimous consent. But we could have done a 
lot more last week had people been willing to come to the floor and 
allow us to proceed to amendments that were filed.
  I also want to highlight a letter the Appropriations Committee has 
received from more than 2,420 national, State, and local organizations, 
and State and local government officials in support of the funding that 
is in the programs that are included in this important bill. This is an 
important bill. It is a bill that will help us rebuild our crumbling 
infrastructure. It is a bill that helps us meet the housing needs of 
homeless veterans, of disabled senior citizens, of very low-income 
families. It is a bill that will help the private sector create 
thousands of new jobs at a time when our economy needs them--in fact, 
hundreds of thousands of new jobs.
  It is not surprising to me that so many organizations are lending 
their voices in support of this bill. I want to read one quote from the 
letter from these organizations. The letter notes that:

       Through these investments, Congress supports small business 
     job creation, expands our nation's infrastructure capacity, 
     supports economic recovery and growth, reduces homelessness 
     and housing hardships, and promotes lasting community and 
     family economic success.

  I think that is a very good description of the purpose and the 
programs in this bill.
  One of the programs in this bill that is extremely popular and has 
been used very well to promote economic development and community 
reinvestment in my State is the funding for the Community Development 
Block Grant Program. That is an area where our bill differs greatly 
from the House bill.
  I want to point out that tomorrow the House of Representatives is 
expected to consider its version of the fiscal year 2014 Transportation 
and Housing and Urban Development appropriations bill. Think about 
this. If we pass our bill, they pass their bill, we could actually 
proceed to a conference committee and work out the differences between 
our respective bills. The differences are marked. I do not minimize the 
differences in terms of priorities and funding, but that is what 
Congress is all about.
  If we do pass our bill and the House proceeds to pass its version of 
the T-HUD appropriations bill, we will be the first but I hope not the 
only fiscal year 2014 spending bill that is ready for conference, goes 
to conference, and I hope becomes law.
  Finally, let me say, I recognize the Senate bill is not perfect, 
despite the heroic efforts Senator Murray and I made in committee and 
the input and insight from our colleagues that are incorporated into 
this bill. But it is a good-faith bipartisan effort that attempts to 
strike the right balance between fiscal responsibility and our Nation's 
infrastructure and housing needs.
  I am confident the bill that would come back from conference would 
be, frankly, at a lower spending level, which I and many on my side of 
the aisle want to see. But I was encouraged by the Senate's vote last 
week of 73 to 26 to allow the Senate to proceed to this bill. I know we 
can make improvements. That is what the amendment process is all about.
  Again, I want to second what our chairman has said and encourage our 
colleagues to get their amendments filed and to work with both of us so 
we can proceed to wrap up this work session on a high note of passing, 
on time, an individual appropriations bill. I am willing to work hard 
over the recess to conference the two bills, to get going on that. I 
know the chairman is as well.
  I want to thank the chairman and my staff and her staff also for 
working so hard.
  Mrs. MURRAY. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. LEAHY. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Madam President, what is the parliamentary situation?
  The PRESIDING OFFICER. The nomination of Mr. Comey to be the FBI 
Director.


                            Comey Nomination

  Mr. LEAHY. Madam President, I wish to speak about the Comey 
nomination.
  James Comey, Jr., should be confirmed to be our next Director of the 
Federal Bureau of Investigation. I feel it should be done without 
delay. Director Mueller has served very well, but his term expires 
early September. It is imperative the Senate work quickly to confirm 
his successor.
  I worked with Ranking Member Grassley to schedule James Comey's 
confirmation hearing as soon as we returned from the Fourth of July 
recess. Earlier this month, with Senator Grassley's cooperation, we in 
the Judiciary Committee unanimously reported the nomination of James 
Comey to the floor. However, in contrast with the treatment of previous 
FBI Director nominees--the FBI Director nominees of all preceding 
Presidents--who were all confirmed by the full Senate within a day or 
two of being reported by the Senate Judiciary Committee, James Comey is 
the first FBI Director nominee to be filibustered in Senate history by 
either Republicans or Democrats.
  In this case, of course, it is the Republicans who are filibustering 
a law enforcement position such as this, somebody who was voted out of 
the committee by every single Republican and Democratic Senator--and 
then to be filibustered by Republicans on his nomination?
  We should be voting to confirm James Comey tonight. It has already 
taken twice as long to bring up this nomination for a vote in the full 
Senate as for any previous FBI Director. President Obama officially 
nominated James Comey on June 21, 38 days ago. No other FBI Director 
has waited longer than 20 days from nomination to confirmation. The FBI 
Director plays a very vital role in our national security, and the 
Senate must put an end to these routine delays.
  Nearly 12 years ago, when the Senate considered President Bush's 
nomination of Robert Mueller to be Director of the FBI on the same day 
he had been reported by the Senate Judiciary Committee, I spoke about 
how the rights of

[[Page 12489]]

all Americans were at stake in the selection of a new FBI Director and 
how the FBI has extraordinary power to affect the lives of ordinary 
Americans.
  Contrast that with President Bush, Democrats were in the majority, 
and we Democrats worked to get President Bush's nominee confirmed the 
same day he came out of committee.
  We Democrats made sure politics were not in play in the confirmation 
of the FBI Director. Republicans shouldn't allow politics to play in 
the confirmation of an FBI Director. I said at the time, with Robert 
Mueller, I noted the FBI's sweeping investigatory powers, when used 
properly, can protect all of us by combating crime, espionage, and 
terrorism. But I also warned that unchecked, these same powers could 
undermine our civil liberties and our right to privacy.
  When I spoke those words, I didn't know that just 40 days later the 
world--and the FBI -would change dramatically in the wake of the 
terrorist attacks on September 11. It shook this area, including even 
the Senate because of the anthrax attack, which killed a number of 
individuals. One of the anthrax letters was addressed to me. As the 
full Senate considers the President's nomination of James Comey to be 
the seventh Director of the FBI, what I said in 2001 holds true today. 
With the increased counterterrorism role of the FBI and the expansion 
of the FBI's surveillance activities, it is even more imperative that 
the next FBI Director possesses an unflagging commitment to the 
Constitution and the rule of law.
  James Comey is the right man to lead the FBI. He has had a long and 
outstanding career in law enforcement. He worked for years as a front-
line prosecutor on a range of cases fighting violent crime, terrorism, 
and white-collar fraud, all of which are at the core of the FBI's 
mission. He also served as the U.S. attorney for the Southern District 
of New York. He served as the Deputy Attorney General under President 
George W. Bush.
  In fact, Madam President, many of us remember, when he was Deputy 
Attorney General, the dramatic hospital bedside confrontation James 
Comey had with senior White House officials who tried to prod an ailing 
John Ashcroft to reauthorize an NSA surveillance program--a program 
that the Justice Department had concluded was illegal. Yet White House 
staff was over there trying, at his hospital bed, to get the Attorney 
General to agree to it. But the Deputy Attorney General stepped in, in 
his role as Acting Attorney General, and stood firm against this 
attempt to circumvent the rule of law, and I believe he will continue 
to show the same strength of character and principled leadership if 
confirmed as Director.
  During his confirmation hearing before the Judiciary Committee, James 
Comey proved that his reputation for unwavering integrity and 
professionalism is well-deserved. One area of great concern for me was 
his approval of a 2005 legal memo to authorize the use of various 
methods of torture, including waterboarding. I wanted to make sure that 
as FBI Director, James Comey would never condone or resort to 
waterboarding a prisoner--something for which we have prosecuted people 
in other countries. He answered my questions and stated directly, 
unequivocally, that waterboarding is not only personally abhorrent but 
that it is torture and illegal. He also testified that if confirmed he 
would continue the FBI's policy of not permitting the use of abusive 
interrogation techniques against prisoners, including sleep deprivation 
and cramped confinement.
  Mr. Comey and I do not agree on all matters. I do not agree with him 
that the Authorization for the Use of Military Force permits the 
government to detain indefinitely an American citizen captured on 
American soil in military custody without charge or trial, and I will 
continue to oppose efforts to codify such an interpretation of the law. 
I was glad James Comey committed to adhering to the current 
administration policy of not indefinitely detaining Americans in such 
circumstances.
  When he testified before us, I saw a man of integrity and honesty, 
competent in background, and so once he is confirmed--and I trust he 
will be confirmed once this filibuster has ended--I will continue to 
press him on the scope and legality of surveillance conducted by the 
government pursuant to the PATRIOT Act and other authorities under the 
Foreign Surveillance Intelligence Act. As I noted during his 
confirmation hearing, just because the FBI has the ability to collect 
huge amounts of data does not mean it should be collecting huge amounts 
of data. As the head of our premier law enforcement agency, the FBI 
Director bears a special responsibility to ensure that domestic 
government surveillance does not unduly infringe upon our freedoms. I 
have long said that protecting our national security and protecting 
Americans' fundamental rights are not mutually exclusive. We can and 
must do both. I fully expect that James Comey will work to achieve both 
goals.
  After Director Mueller's distinguished tenure at the Bureau, James 
Comey has big shoes to fill. The next Director must face the growing 
challenge of how to sustain the FBI's increased focus on 
counterterrorism while at the same time upholding the FBI's commitment 
to its historic law enforcement functions. It is going to be 
particularly difficult to protect this country and protect our law 
enforcement functions because of sequestration and other fiscal 
constraints, but I think the FBI has to continue to play a key role in 
combating the crimes that affect everyday Americans--from violent 
crimes, to bank robberies, to fraud and corruption cases.
  If we learned nothing else since the September 11 attacks, we learned 
that it matters who leads our Nation at all levels of government. We 
need strong, principled, ethical leaders who steadfastly adhere to the 
law. I am confident that James Comey is such a leader. I am urging 
Senators on both sides of the aisle to join me in voting to overcome 
this filibuster in a vote to confirm him to be the next Director of the 
Federal Bureau of Investigation.
  As I said before--and I will put into the Record how long it has 
taken from nomination to confirmation--twice as long as President 
Bush's FBI nomination, more than twice as long as President Reagan's 
FBI nomination, and twice as long as President Nixon's FBI nomination. 
In every one of those cases, no Democrat filibustered President Bush, 
President Reagan, and President Nixon. We all worked to get the FBI 
Director in there. This filibuster by my friends on the other side of 
the aisle is unprecedented. I wish they would treat President Obama the 
same way we treated President Bush, President Reagan, and President 
Nixon and not make President Obama seem to be somehow different and 
interfere with law enforcement the way they have.
  Madam President, I ask unanimous consent to have printed in the 
Record a chart showing how long it took previous Presidents.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

------------------------------------------------------------------------
                                            Total # days from nomination
           FBI Director Nominee                    to confirmation
------------------------------------------------------------------------
JAMES B. COMEY, JR. (OBAMA)...............  38 days--as of 7/29/13.
ROBERT S. MUELLER, III (W. BUSH)..........  15 days.
LOUIS FREEH (CLINTON).....................  17 days.
WILLIAM SESSIONS (REAGAN).................  16 days.
WILLIAM WEBSTER (CARTER)..................  20 days.
CLARENCE KELLEY (NIXON)...................  19 days.
------------------------------------------------------------------------

                               The Budget

  Mr. LEAHY. Madam President, I see my friend from Iowa on the floor, 
but I want to express for the record my concern about this kind of 
unprecedented obstruction. And it is unprecedented. I have been here 38 
years, and this has never happened before, this unprecedented 
obstruction of the FBI nominee.
  In addition to the unprecedented obstruction on the FBI nominee, I 
want to mention another topic that my friends on the other side of the 
aisle are blocking. A small minority of Senators are objecting to 
moving forward with a budget conference. We have all heard a lot of 
talk in the last few years about getting our fiscal house in order--it 
makes for a great campaign slogan. But I am afraid that too many in 
this body are not following through on their responsibility to govern.
  It has been over four months since the Senate passed its version of a 
budget resolution. We all remember being

[[Page 12490]]

here overnight voting on amendment after amendment. In the intervening 
months Senate Democrats have tried 17 times to move to a bipartisan 
budget conference with the House to work out a final budget agreement. 
Yet each time the perfunctory request is made--a request that normally 
is agreed to shortly after we finish our version of the budget--someone 
from the other side of the aisle, with the full support of their 
leadership, objects.
  After years of crocodile tears from the other side of aisle about the 
lack of a budget from the Senate, we finally pass one and they object 
to moving forward.
  After years of hearing how we need to get our fiscal house in order 
because the national debt is the single most pressing issue facing the 
country, we pass a responsible budget plan to pay down the debt and 
they object to moving forward.
  When it comes time to turn all the politicking into governing, they 
get cold feet and object.
  As the distinguished chairwoman of the Budget Committee has lamented 
over and over again, I am sorry to say that for some factions in the 
Republican Party today ``compromise'' is a dirty word and ``distrust'' 
is a political tactic. That may explain why Senate Republicans have 
offered up excuse after excuse for blocking the regular budget order 
they so desperately pled for just a short time ago. Republicans are 
denying the opportunity for members of this body to work with members 
of the other body on hammering out a final budget agreement.
  I have been fortunate to serve in this chamber for 38 years. I was 
elected to the Senate in 1974, the same year the Congressional Budget 
Act passed into law. And I served here with Senator Edmund Muskie of 
Maine, the first chairman of the Budget Committee. In all those years--
with all those budgets--I cannot recall one, single instance where 
political obstruction like this blocked the Senate from going to 
conference on a budget resolution. And just to be sure, I checked with 
the Congressional Research Service and they could not find another 
instance of obstruction like this on a budget conference either. Not 
from Democrats; not from the old GOP; not from anyone until now.
  Some in this body have objected to the Senate considering any 
appropriations bills until a final budget agreement is reached. Let me 
see if I get this straight. The very same people who have been begging 
for a new budget plan are blocking the Senate from going to conference 
on the budget resolution and then saying we cannot possibly deal with 
any bills to fund the government next year until we have a final budget 
agreement, inching us even closer to a government shutdown or a 
government default that would devastate our economy and ruin the very 
fiscal house they claim they are trying to get in order. Oh, the sweet 
irony here.
  It is time for reason and sanity to return to the Senate--on this 
budget resolution, on nominations, and on a whole host of other issues. 
I think returning to regular order on the budget conference--and 
letting conference members from the House and the Senate work out a 
final agreement--would be a good first step to bringing some comity and 
order back to this body so we can serve the American people.
  Mr. WHITEHOUSE. Madam President, I rise today to speak regarding the 
nomination of James B. Comey, Jr., to serve as Director of the Federal 
Bureau of Investigation.
  Mr. Comey has a long record of service to the Department of Justice. 
Colleagues doubtless are familiar with Mr. Comey's role in the infamous 
scene at the side of Attorney General Ashcroft's hospital bed over the 
reauthorization of part of President Bush's warrantless wiretapping 
program. Mr. Comey, to his great credit, stood firm for the rule of law 
and for the Department he served.
  Nonetheless, I believe Mr. Comey's role in the issuance of Justice 
Department legal opinions on torture deserves close examination by this 
body.
  In August 2002, Assistant Attorney General Jay Bybee and John Yoo of 
the Justice Department's Office of Legal Counsel used what are now 
acknowledged to be radical--some would say outlandish--legal arguments 
to authorize the use of torture. Jack Goldsmith, the subsequent head of 
the office, withdrew those opinions. His successor, Daniel Levin, 
issued a new opinion, dated December 30, 2004, that provided a new 
analysis of the Federal statute outlawing torture. The Office of Legal 
Counsel, under the leadership of Steven Bradbury, applied that analysis 
to a series of abusive interrogation techniques, as used individually 
and in combination. The resulting two opinions--the Individual 
Techniques Opinion and the Combined Techniques Opinion--were issued on 
May 10, 2005. Then-Deputy Attorney General Comey concurred in the 
former and vigorously objected to the latter on both legal and policy 
grounds.
  I strongly disagree with Mr. Comey's conclusion that the Individual 
Techniques Opinion was, as he put it at his confirmation hearing before 
the Judiciary Committee, a ``serious and responsible interpretation'' 
of the torture statute. Its legal analysis is inadequate in numerous 
ways, but for today I will focus on one of the most significant 
shortcomings.
  As I have observed on other occasions, this opinion omits the 1984 
Fifth Circuit case of United States v. Lee, which involved the 
prosecution by the Reagan Justice Department of a local sheriff and 
deputies who had engaged in waterboarding. The Justice Department's 
brief on appeal described the technique in detail and described it as 
``water torture.'' The opinion by the Fifth Circuit likewise repeatedly 
referred to ``water torture'' and ``torture.'' As Professor David Luban 
of Georgetown Law School explained at a hearing I chaired in May 2009, 
Lee is ``perhaps the single most relevant case in American law on the 
legality of waterboarding.''
  To give you an idea of how widely the Individual Techniques Opinion 
ranged, it evaluated the meaning of the terms ``severe physical or 
mental pain or suffering;'' it evaluated ``[t]he common understanding 
of the term `torture' and the context in which the statute was 
enacted'' and it discussed ``the historical understanding of torture.'' 
Yet nowhere in this discussion of the ``historical understanding of 
torture'' and the ``common understanding of the term `torture''' does 
this opinion mention that it was the view of the Department of Justice 
itself, confirmed by the U.S. Court of Appeals for the Fifth Circuit in 
1984, that waterboarding is torture. The opinion likewise fails to 
consider the American prosecutions of Japanese soldiers for 
waterboarding our troops during the Second World War or the court-
martials of American soldiers for using the technique in the 
Philippines after the Spanish-American war.
  The shortcomings of the Individual Techniques Opinion go beyond the 
failings of its legal analysis. Lawyers cannot analyze the law without 
knowing the facts, and the record demonstrates that the CIA repeatedly 
gave the Office of Legal Counsel bad information about the use and 
effectiveness of the techniques. How willingly Yoo and Bybee accepted 
false representations by the CIA about their use of the techniques is a 
question for another day--and their consciences.
  In 2004, however, the CIA's Inspector General explained that the CIA 
had used the techniques differently than they were described in the Yoo 
and Bybee opinions. Significant misrepresentations also made their way 
into Office of Legal Counsel opinions in 2005. As former FBI 
interrogator Ali Soufan testified at a hearing I held in 2009, a May 
30, 2005, opinion claim about the effectiveness of waterboarding 
against Khalid Sheik Muhammad and the so-called Dirty Bomber, Jose 
Padilla, was demonstrably false. And although I cannot discuss the 
report of the Senate Intelligence Committee, which remains classified, 
it is my firm belief that when all the facts are finally made public, 
the judgment about the candor of the CIA will be harsh and the 
Individual Techniques Opinion will be further discredited.
  As I pointed out at Mr. Comey's confirmation hearing, it is not 
enough to say that letting the Individual Techniques Opinion go was ok 
because the

[[Page 12491]]

techniques would likely only be used in combination. If Mr. Comey's 
view had prevailed and the Combined Techniques Opinion had not been 
issued, an interrogator could have waterboarded a detainee as long as 
that technique was used in isolation.
  It also concerns me that Mr. Comey did not press for an analysis of 
legal prohibitions other than the torture statute. The Individual 
Techniques Opinion and the Combined Techniques Opinion did not 
consider, for example, the legality of abusive techniques under 
American treaty obligations, such as those imposed by the Convention 
Against Torture or even under the Constitution. It may be the practice 
of the Office of Legal Counsel to divide relevant legal questions among 
multiple opinions, but that does not justify failing to address all 
obvious and relevant legal questions. As a result, I believe that 
concurrence in the Individual Techniques Opinion should have been 
withheld until it was clear that the Office was evaluating all relevant 
treaty and constitutional questions.
  Because I do not believe the Individual Techniques Opinion is 
reasonable or responsible, and because I believe the process for 
reviewing that opinion was flawed, I cannot hold Mr. Comey blameless 
for concurring it. He should have done better.
  This evaluation has the benefit of hindsight and is free from the 
pressurized atmosphere of early 2005, when Mr. Comey was forced to 
contend with a White House pulling the Justice Department in the wrong 
direction on a number of fronts.
  I accept that it was not Mr. Comey's responsibility as the Deputy 
Attorney General to do his own research on the questions addressed by 
the Individual Techniques Opinion. I do think that the opinion had a 
bad enough odor to put a responsible, well-trained lawyer on alert.
  Mr. Comey did take significant, affirmative steps to satisfy himself 
that the Individual Techniques Opinion was issued in good faith, seeing 
to it that the opinion was pressure-tested by exposing it to broad 
review within the Department of Justice and the executive branch. This 
fact distinguishes the Individual Techniques Opinion from the earlier 
opinions that had been crafted without adequate scrutiny within the 
executive branch--scrutiny they likely could not have survived: 
remember the use of the Medicare standard for a torture opinion.
  In sum, while I believe that the Individual Techniques Opinion does 
not meet the standards expected of Justice Department attorneys, I 
ultimately have concluded that Mr. Comey performed his role reasonably.
  One key fact corroborates this conclusion. As discussed above, the 
legality of waterboarding under American treaty obligations and the 
Constitution was the obvious followup question. In fact, the Office of 
Legal Counsel was working on a separate opinion on those very questions 
and would publish it on May 30, 2005. Mr. Comey, however, was 
deliberately cut out. Though he already had submitted his resignation, 
Mr. Comey apparently was enough of a thorn in the side of the enablers 
of torture that they wanted to get around him.
  It is my judgment, overall, that Mr. Comey was an opponent of torture 
and a defender of the best traditions of the Justice Department and our 
Nation. I think he could have done better, but Mr. Comey was on the 
right side. Add to this his clear statements to the committee, his long 
track record of public service, and his principled stands on other 
matters of national importance, and I conclude that Mr. Comey has the 
integrity, the capability, and the commitment to lead the Federal 
Bureau of Investigation. I will work to see his nomination confirmed 
and work with him as he undertakes this new chapter in his public 
service.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Madam President, Shortly the Senate will be voting to 
invoke cloture on the nomination of James B. Comey to become the next 
Director of the FBI. I will vote to invoke cloture and expect many of 
my colleagues will do the same.
  The confirmation of a new FBI Director is a serious decision for this 
Chamber to consider. As a large Federal law enforcement agency, the FBI 
has numerous responsibilities and tremendous power. Only with quality 
leadership and proper Congressional oversight will the FBI be best 
equipped to fight crime, terrorism, and espionage.
  I think the President has made a fine choice in selecting Mr. Comey 
as the next leader of the FBI, and I plan to explain my support for him 
as we approach Mr. Comey's confirmation vote.
  I recognize there is a level of concern associated with this 
nomination regarding the use of drones by the FBI. I have been at the 
forefront of this issue, raising it last year with the Attorney 
General. The Attorney General gave me an incomplete answer as to the 
FBI's use of drones.
  Accordingly, after there was disclosure that the FBI was using drones 
on U.S. soil for surveillance, I questioned Mr. Comey about the extent 
of that policy. This needs to be addressed by the new director, and I 
have Mr. Comey's assurance he will review the policy. I will be 
monitoring this closely, but we need a director in place, and we need 
to confirm this nomination this week.
  Excellent leadership is only one ingredient in the recipe for success 
at any Federal agency. Another critical element is proper congressional 
oversight. And it is this component I fear too many of my colleagues 
have forgotten. Today, too many seem to believe that advice and consent 
really means rubberstamp and turn a blind eye. The American people 
deserve better than this approach to confirmations.
  Over the last few months, I have observed an alarming pattern. Too 
often, this administration submits subpar nominees while simultaneously 
obstructing any legitimate oversight by this Congress. Sadly, many of 
my colleagues appear to be choosing to ignore any effort to correct it. 
Let me cite just a few examples.
  We saw how Mr. Perez, an assistant attorney general, brokered an 
unwritten deal that cost the taxpayers hundreds of millions of dollars. 
My colleagues on the other side largely ignored the shady deal. Mr. 
Perez tried to cover his tracks, but got caught leaving a voicemail 
that was recorded. Even then, my colleagues dismissed it. And when he 
was caught concealing evidence of the deal on his personal email 
accounts, he defied a lawfully issued congressional subpoena and 
refused to turn over the documentation. Incredibly, his defiance was 
ignored. Worse yet, for all this rotten behavior, the Senate rewarded 
him with a promotion by confirming him as Secretary of Labor.
  We see the same thing occurring with the nomination of Mr. Mayorkas. 
The nominee for the No. 2 position at the Department of Homeland 
Security is the target of an open investigation by the Inspector 
General of the Department of Homeland Security. The IG is investigating 
allegations that the nominee procured a visa as a political favor, even 
though the visa was properly rejected.
  Incredibly, the Senate Committee pressed on with the hearing despite 
unanimous objection from the minority for moving forward in the midst 
of an open investigation.
  That is incredible to me--a Senate Committee would move forward with 
a nominee who has an open investigation into the nominee's conduct. I 
wish this were a unique occurrence, but based on recent experience in 
the Judiciary Committee, it is not an isolated event. This is exactly 
what happened recently in the Senate Judiciary Committee with respect 
to Mr. B. Todd Jones, the nominee to be Director of the Bureau of 
Alcohol, Tobacco, and Firearms.
  Earlier this year, I learned the Office of Special Counsel was 
investigating Mr. Jones in a complaint that he retaliated against a 
whistleblower in the U.S. Attorney's Office for the District of 
Minnesota.
  In the Judiciary Committee, it has been the Committee's practice when 
a nominee is the subject of an open investigation, the Committee 
generally does not move forward until the issues are resolved. Because 
of this practice, I objected to holding his hearing last

[[Page 12492]]

month and requested the hearing be postponed to allow the investigation 
to finish.
  My request was denied. I then objected to putting him on the 
committee agenda until the non-partisan investigation was complete. 
Again, my request was rejected. And now, despite the fact there remains 
an open complaint of whistleblower retaliation against Mr. Jones before 
the Office of Special Counsel, his nomination will soon be considered 
by the full Senate.
  I want all my colleagues to know what happened because I am quite 
concerned by the direction it has taken, especially in light of the 
fact this practice seems to be spreading into other Senate committees 
as well.
  Over the past few months, there has been correspondence between my 
office and the Office of Special Counsel regarding the status of their 
proceedings.
  I had previously received a copy of an anonymous letter to the Office 
of Special Counsel making various allegations against Mr. Jones. I sent 
a letter to OSC on April 8, asking for an update on those allegations. 
On April 12, the Office of Special Counsel responded that there were 
two pending matters involving the U.S. Attorney's Office, District of 
Minnesota, where Mr. Jones is the United States Attorney. The first 
matter was a prohibited personnel practice complaint alleging reprisal 
for whistleblowing and other protected activity. The second matter was 
a whistleblower disclosure, alleging gross mismanagement and abuses of 
authority.
  The complaint, filed by an Assistant United States Attorney in the 
office, alleged that personnel actions, including a suspension and a 
lowered performance appraisal, were taken in retaliation for protected 
whistleblowing or other protected activity.
  On June 5, OSC provided the committee with an update to the two 
pending cases. It reported the whistleblower disclosure case had been 
closed based on its determination that the information provided was 
insufficient to determine with a substantial likelihood that gross 
mismanagement, an abuse of authority, or a violation of a law, rule, or 
regulation had occurred. Accordingly, OSC closed that case file.
  OSC's action to close the whistleblower disclosure case was not based 
on any investigation by that office. That action was merely a 
determination based on a technical review of the complaint document 
itself. It was not a finding on the merits of the complaint.
  With regard to the other issue, the prohibited personnel practice, I 
was informed the complaint was referred for investigation. Subsequently 
the complainant and Justice Department agreed to mediation. I was told 
that if mediation was unsuccessful, the case would return to OSC's 
Investigation and Prosecution Division for further investigation.
  My colleagues should understand that, of all the complaints received 
by OSC, only about 10 percent of them merit an investigation. This case 
was one of them. Why did the career, nonpartisan staff at OSC forward 
the case for investigation? Presumably because they thought it needed 
to be investigated. That says something about the likely merits of the 
case.
  Before the hearing, there was disagreement regarding the status of 
the Special Counsel's investigation. Accordingly, I contacted the 
Special Counsel, inquiring as to the status of the complaints. The 
Special Counsel confirmed for the second time that the investigation 
remains open. She stated, ``The reassignment of the case for mediation 
did not result in the matter being closed.''
  Despite this, and over my objection, on June 11, the committee went 
forward with a hearing on the Jones nomination. We were told Mr. Jones' 
hearing needed to be held in order for him to have an opportunity to 
respond to the Office of Special Counsel complaints. I would note that 
a similar rationale was used to justify the Mayorkas hearing--to 
publicly address the allegations against the nominee. In Mr. Jones' 
case, in advance of the hearing, the Department of Justice sent a 
letter to me stating: ``Mr. Jones looks forward to answering your 
questions about these matters during his nominations hearing. . . .''
  Additionally, Mr. Jones was quoted in the Star Tribune as saying, ``I 
am looking forward to meeting with the Committee and answering all 
their questions.''
  However, as I expected, the hearing provided no information to the 
committee with regard to the open Special Counsel investigation. At the 
hearing, Mr. Jones said he could not talk about the complaint. Of 
course, this negated the whole reason why the hearing had even been 
scheduled.
  At his hearing, my first question to Mr. Jones was about the 
investigation. This is his reply:

       Because those complaints are confidential as a matter of 
     law, I have not seen the substance of the complaints, nor can 
     I comment on them. I have learned more from your statement 
     today than I knew before I came here this morning about the 
     nature and substance of the complaint.

  A few questions later, I inquired of Mr. Jones, ``Will you answer the 
complaints about the Assistant U.S. Attorney--because that is why you 
are here today?''
  He replied:

       Well, quite frankly, Senator, I am at a disadvantage with 
     the facts. There is a process in place. I have not seen the 
     OSC complaint. I do know that our office, working with the 
     Executive Office of U.S. Attorneys, is in the process of 
     responding to the issues that you have talked about this 
     morning, but I have not had the opportunity to either be 
     interviewed or have any greater knowledge about what the OSC 
     complaint is.''

  So there we were, left with an open investigation of serious 
allegations of whistleblower retaliation. We were told the hearing was 
the opportunity for us to question the nominee and get these questions 
answered, but the nominee couldn't even talk about them at all.
  This put the Committee in the position of either allowing time for 
the Office of Special Counsel to do its job or looking into the matter 
for ourselves before proceeding.
  Strangely, late in the day before the hearing, the Majority offered 
to conduct some interviews the Friday following the hearing. That was 
quite perplexing to me. We were going to begin the investigation after 
the hearing had concluded. I could not remember when the committee had 
ever conducted an investigation after a nominee's hearing.
  The day after the hearing, the chairman's staff indicated to the 
media we were conducting a bipartisan probe. The media reported the 
majority staff had offered to conduct a bipartisan inquiry into the 
matters before the Office of Special Counsel.
  However, I am disappointed to report there was no genuine effort to 
gather all the facts. The majority only agreed to jointly interview one 
witness, the whistleblower himself. However, the majority refused to 
look into the substance of the whistleblower's claims. Even more 
troubling, it quickly turned into an inquiry of the whistleblower 
rather than into the alleged retaliatory action done by the nominee.
  The majority reached its own conclusion that it was not a 
whistleblower matter at all, but a personnel matter wherein management 
simply imposed discipline on a disruptive or insubordinate employee. 
However, there was never a factual record before the committee to 
support this conclusion.
  The majority determined the whistleblower is an uncooperative witness 
for being ``unwilling to provide documents''--meaning his personnel 
file.
  The whistleblower in this instance is an Assistant U.S. Attorney with 
30 years of Federal service, 24 years of which he has served in the 
U.S. Attorney's Office for the District of Minnesota. He has extensive 
leadership experience and in 2012 received the Assistant Attorney 
General's Distinguished Achievement Award.
  It should be quite alarming to us all that a staff investigation of a 
whistleblower's complaint would be twisted around into an apparent 
attempt to investigate the whistleblower.
  I have worked with many Federal Government whistleblowers over the 
years and this is exactly the type of treatment that whistleblowers 
fear. It is one of the main reasons they are afraid to come forward. 
This type of treatment raises serious concerns.
  Unfortunately, I have come to expect this out of the Federal 
Government

[[Page 12493]]

agencies--attacking the whistleblower rather than investigate the 
underlying problem. I have seen it over and over again. But this sort 
of inquiry shouldn't be the way the Senate deals with whistleblowers or 
others who come forward to testify.
  The Senate cannot conduct itself this way. We cannot ignore ongoing 
investigations. In my opinion, we are neglecting our constitutional 
obligations. Eventually, one of these situations will embarrass the 
Senate, damage the reputation of the Federal Government, and, 
ultimately, probably cost the taxpayers, our constituents.
  So I urge all of my colleagues to oppose taking further action at 
this time on the nomination of B. Todd Jones for Director of ATF, 
another nominee with an open investigation. I will vote no on cloture 
and encourage my colleagues to do likewise. This is about protecting 
the advice and consent function of the Senate.
  The Senate should wait until the Office of Special Counsel has 
concluded its investigation and we know the truth about his retaliatory 
conduct against a protected whistleblower. There will be time to debate 
the other substantive concerns regarding this nomination. There may be 
additional reasons why my colleagues should oppose Mr. Jones's 
nomination. Other Senators may vote to confirm the nominee.
  But as a starting point, we should all be in agreement that it is 
imprudent and unwise for the Senate to give final consideration to any 
nominee where there is an open investigation into that nominee's 
conduct. The Senate cannot abdicate its duty to advise and consent on 
these nominees and simply rubberstamp them.
  As we consider this nomination, as well as a number of other 
nominations this week, I would urge my colleagues to ponder what a 
Federal agency needs in order to be best positioned to succeed. In my 
opinion, a Federal agency needs at least two things: a quality leader 
and proper congressional oversight. I think this is especially relevant 
as we consider the next Director of the Federal Bureau of 
Investigation.
  The Federal Bureau of Investigation is a powerful law enforcement 
agency facing numerous challenges today.
  First and foremost, the FBI is still undergoing a transformation from 
a Federal law enforcement agency to a national security agency. 
Following 
9/11, the FBI's mission changed. Director Mueller was immediately 
thrust into the role of reinventing a storied law enforcement agency 
into a national security agency.
  While Director Mueller rose to the challenge and made tremendous 
strides in accomplishing this transformation, that job is not yet 
complete. It is still adjusting to prevent domestic terrorism. It must 
grow to combat the growing threat of cybercrimes that threaten our 
national security, our economy, and our infrastructure. The FBI needs a 
Director to continue to guide it as it rises to counter these serious 
threats.
  Second, the FBI must confront the growing concerns over the use of 
invasive methods of gathering information on American citizens. One 
example would be the proper use of drones by domestic law enforcement 
agencies. Last year I raised this issue with the Attorney General. It 
now appears his response was less than forthright. This year, I raised 
the issue with Director Mueller and again with Mr. Comey, today's 
nominee.
  Frankly, it is going to require a Director who is knowledgeable on 
the subject, the law, and who is willing to work with Congress in order 
to craft the best policy with regard to this technology's potential use 
in domestic law enforcement.
  Third, a host of legacy problems at the FBI remain unsolved. The FBI 
has struggled to develop a working case management computer system. 
Management concerns remain about the proper personnel balance between 
special agents and analysts. It has yet to effectively manage agent 
rotations to the Washington, DC headquarters. A real or perceived 
double standard of discipline between line agents and management must 
be repaired. Significant concerns about internal FBI policies dealing 
with whistleblower retaliation exist. Each of these matters must be 
addressed as they threaten to undermine the hard work of the employees 
at the FBI.
  The position of FBI Director is unique in that it is a 10-year 
appointment subject to the advice and consent of the Senate. This 10-
year term was extended 2 years ago on a one-time only basis. The 
extension allowed Director Mueller to serve an additional time period 
as the President failed to nominate a replacement. At the time, we held 
a special hearing to discuss the importance of a term limit for the FBI 
Director. One of the reasons Congress created a 10-year term was to 
ensure accountability of the FBI.
  Today, we vote on the nomination of James B. Comey for Director. Mr. 
Comey has a distinguished legal career. After graduating from the 
University of Chicago Law School in 1985, Mr. Comey clerked for Hon. 
John M. Walker, Jr., U.S. district judge for the Southern District of 
New York.
  In 1986, he began his legal career with Gibson, Dunn & Crutcher, LLP, 
where he focused on civil litigation. In 1987, Mr. Comey became an 
assistant U.S. attorney in the Southern District of New York, 
eventually serving as deputy chief of the Criminal Division.
  He left the Department of Justice to return to private practice in 
1993, joining McGuireWoods, LLP. While at McGuireWoods, he served as a 
deputy special counsel on the U.S. Senate Special Committee to 
Investigate Whitewater and Related Matters. During this time, he also 
served as an adjunct professor at the University of Richmond Law 
School.
  In 1996, Mr. Comey returned to government service as Managing 
Assistant U.S. Attorney in the Office of the U.S. attorney for the 
Eastern District of Virginia. By 2002, Mr. Comey was appointed U.S. 
attorney for the Southern District of New York. And in December 2003, 
he was appointed Deputy Attorney General, a position he served with 
honor and distinction until 2005, when he left government service.
  However, I would like to point out, and I think Mr. Comey would 
agree, that perhaps one of the best indicators about his judgment is 
that he had the smarts to marry an Iowan.
  At his confirmation hearing, Mr. Comey addressed many concerns raised 
by Senators from both sides of the aisle. His answers were direct and 
thoughtful. On subjects with which he was familiar, he spoke 
intelligently and straightforward. If he didn't know enough, he said 
so. There was no trying to hide the ball or cover for his lack of 
expertise in a particular area. In short, it was a refreshing change 
from the many nominees who come up here and try to parrot to Senators 
what nominees think we want to hear.
  Not so with Mr. Comey. In fact, several times when pressed on his 
views on a specific FBI policy, such as FBI whistleblower policies or 
domestic drone use, he confessed he had little or no knowledge of the 
current FBI policy but promised to thoroughly review the existing 
policies in place and the legal and moral issues surrounding the 
controversies. Furthermore, he pledged to work with Congress by being 
responsive to our inquiries for information.
  Now, these promises are not unique to Mr. Comey. Almost every nominee 
promises the Senate that he or she will be responsive to our concerns 
and requests for information. Sadly, especially under this 
administration, once confirmed, we rarely get an adequate response 
until right before that individual has an oversight hearing before a 
Senate or House Committee. I can only hope that Mr. Comey's efforts to 
be more transparent will not be stymied by the Department of Justice.
  As I said, I think that if any Federal agency, but especially the 
FBI, is to succeed, it needs quality leadership and proper 
congressional oversight. After examining his record, I think that Mr. 
Comey will prove to be that leader. Only time will tell, however, if 
this administration will allow Mr. Comey to engage the Congress and 
allow us to perform our constitutional duty of oversight to ensure that 
existing legislation and policies best serve this nation.

[[Page 12494]]

  I thank Mr. Comey for his willingness to return to public service. 
And I urge my colleagues to support his nomination.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. With my friend's permission, I suggest the absence of a 
quorum. I need to talk to him about something that deals with the 
consent agreement I have here.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. REID. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Madam President, I ask unanimous consent that cloture on 
Calendar No. 208 be withdrawn and that the Senate proceed to vote on 
confirmation of the nomination at 5:35 p.m.; the motion to reconsider 
be considered made and laid upon the table, with no intervening action 
or debate; that no further motions be in order; that the President be 
immediately notified of the Senate's action, and the Senate then resume 
legislative session and proceed to a period of morning business, with 
Senators permitted to speak for up to 10 minutes each; further, that 
the vote on cloture on Calendar No. 223 occur on Tuesday, July 30, 
2013, following leader remarks.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. GRASSLEY. Madam President, I yield the floor and I suggest the 
absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LEAHY. Madam President, I ask unanimous consent the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. I yield back all remaining time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Under the previous order, the question is, Will the Senate advise and 
consent to the nomination of James. B. Comey, Jr., of Connecticut, to 
be Director of the Federal Bureau of Investigation?
  Mr. LEAHY. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There appears to 
be a sufficient.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. MERKLEY (When his name was called). Present.
  Mr. WYDEN (When his name was called). Present.
  Mr. DURBIN. I announce that the Senator from North Dakota (Ms. 
Heitkamp) is necessarily absent.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from New Jersey (Mr. Chiesa), the Senator from Florida (Mr. 
Rubio), and the Senator from Alaska (Mrs. Murkowski).
  Further, if present and voting, the Senator from New Jersey (Mr. 
Chiesa) would have voted ``yea.''
  The PRESIDING OFFICER (Mr. Donnelly). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 93, nays 1, as follows:

                      [Rollcall Vote No. 188 Ex.]

                                YEAS--93

     Alexander
     Ayotte
     Baldwin
     Barrasso
     Baucus
     Begich
     Bennet
     Blumenthal
     Blunt
     Boozman
     Boxer
     Brown
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Coons
     Corker
     Cornyn
     Crapo
     Cruz
     Donnelly
     Durbin
     Enzi
     Feinstein
     Fischer
     Flake
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Heinrich
     Heller
     Hirono
     Hoeven
     Inhofe
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kaine
     King
     Kirk
     Klobuchar
     Landrieu
     Leahy
     Lee
     Levin
     Manchin
     Markey
     McCain
     McCaskill
     McConnell
     Menendez
     Mikulski
     Moran
     Murphy
     Murray
     Nelson
     Portman
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Sanders
     Schatz
     Schumer
     Scott
     Sessions
     Shaheen
     Shelby
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Vitter
     Warner
     Warren
     Whitehouse
     Wicker

                                NAYS--1

       
     Paul
       

                        ANSWERED ``PRESENT''--2

     Merkley
     Wyden
       

                             NOT VOTING--4

     Chiesa
     Heitkamp
     Murkowski
     Rubio
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table and the President 
will be immediately notified of the Senate's action.

                          ____________________