[Congressional Record (Bound Edition), Volume 160 (2014), Part 6]
[Senate]
[Pages 8999-9000]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           BARRON NOMINATION

  Mr. WHITEHOUSE. There has been considerable discussion on the floor 
about the nominee to the First Circuit, David Barron, that has hinged 
around his tenure in the Office of Legal Counsel and an opinion he 
wrote specifying the outer bounds of Presidential authority in the area 
of defending our national security against Americans who have signed up 
with organizations that do us harm. I wish briefly to bring to the 
attention of this Chamber that it is not the only issue with respect to 
David Barron and the Office of Legal Counsel.
  The Office of Legal Counsel has indeed had a scandal, and it is 
indeed related to David Barron, but it is related to David Barron in 
the best possible way, in that he is the one who cleaned up the 
scandal. The scandal in question--the Presiding Officer is a former 
attorney general of her State and she will understand this very 
clearly--the scandal in question related to the shabby opinions that 
were written by the Office of Legal Counsel to justify the torture 
program that was run by the Bush administration. When I say shabby, 
these were awful opinions. They were hidden from most peer scrutiny 
because they would not have stood up to peer scrutiny. They made errors 
as basic as failing to cite Fifth Circuit Court of Appeals decisions 
right on point.
  There actually had been an incident in which the Department of 
Justice, where the Office of Legal Counsel is located, prosecuted a 
Texas sheriff for waterboarding victims in order to get confessions out 
of them. He was prosecuted as a criminal. He was convicted. The case 
went to the Fifth Circuit on appeal and in the course of their written 
decision on appeal, the Fifth Circuit Court of Appeals of the United 
States--one row below the U.S. Supreme Court--described the technique 
of water torture that was used, the waterboarding, and on a dozen 
separate occasions used the word ``torture'' to describe what was being 
done.
  Look for that case in the Office of Legal Counsel. Look for that case 
in the opinion of Office of Legal Counsel about whether torture is 
accomplished by waterboarding, whether waterboarding is torture. It is 
not there. They didn't even cite the case. It was a case they could 
have found in their own files because the Department of Justice was the 
organization that had prosecuted this sheriff as a criminal for that 
act.
  If you wanted to bring it up as a case and try to find a way to 
distinguish it, I could accept that. I probably would disagree with 
that analysis, but the failure to even cite the case, knowing how 
difficult it would be for the torture program to go forward, I think is 
a sign of either the worst kind of incompetence or a deliberate fix 
being put into the opinion of the Office of Legal Counsel.
  Having served as a U.S. attorney as well, I think the Department of 
Justice

[[Page 9000]]

should have the best lawyers in the country, and within the Department 
of Justice the OLC prides itself on being the best of the best. It was 
a disgraceful departure of that standard when the torture opinions were 
allowed to pass. They simply don't meet any reasonable test of 
adequacy. So on April 15, 2009, the Department of Justice withdrew the 
Office of Legal Counsel's CIA interrogation opinions. The memorandum 
for the Attorney General effecting that withdrawal was signed by none 
other than David Barron. This was the instance of a man who absolutely 
did the right thing. He helped clean up a terrible mess that had been 
left at the Department of Justice. We should be proud of the conduct of 
David Barron at the Office of Legal Counsel.
  I ask unanimous consent that the 1-page memorandum for the Attorney 
General signed by David Barron be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

    Withdrawal of Office of Legal Counsel CIA Interrogation Opinions

       Four previous opinions of the Office of Legal Counsel 
     concerning interrogations by the Central Intelligence Agency 
     are withdrawn and no longer represent the views of the 
     Office.
                                                   April 15, 2009.


                  MEMORANDUM FOR THE ATTORNEY GENERAL

       Sections 3(a) and 3(b) of Executive Order 13491 (2009) set 
     forth restrictions on the use of interrogation methods. In 
     section 3(c) of that Order, the President further directed 
     that ``unless the Attorney General with appropriate 
     consultation provides further guidance, officers, employees, 
     and other agents of the United States Government may not, in 
     conducting interrogations, rely upon any interpretation of 
     the law governing interrogation . . . issued by the 
     Department of Justice between September 11, 2001, and January 
     20, 2009.'' That direction encompasses, among other things, 
     four opinions of the Office of Legal Counsel: Memorandum for 
     John Rizzo, Acting General Counsel of the Central 
     Intelligence Agency, from Jay S. Bybee, Assistant Attorney 
     General, Office of Legal Counsel, Re: Interrogation of al 
     Qaeda Operative (Aug. 1, 2002); Memorandum for John A. Rizzo, 
     Senior Deputy General Counsel, Central Intelligence Agency, 
     from Steven G. Bradbury, Principal Deputy Assistant Attorney 
     General, Office of Legal Counsel, Re: Application of 18 
     U.S.C. Sec. Sec. 2340-2340A to Certain Techniques That May Be 
     Used in the Interrogation of a High Value al Qaeda Detainee 
     (May 10, 2005); Memorandum for John A. Rizzo, Senior Deputy 
     General Counsel, Central Intelligence Agency, from Steven G. 
     Bradbury, Principal Deputy Assistant Attorney General, Office 
     of Legal Counsel, Re: Application of 18 U.S.C. Sec. Sec. 234-
     2340A to the Combined Use of Certain Techniques in the 
     Interrogation of High Value al Qaeda Detainees (May 10, 
     2005); and Memorandum for John A. Rizzo, Senior Deputy 
     General Counsel, Central Intelligence Agency, from Steven G. 
     Bradbury, Principal Deputy Assistant Attorney General, Office 
     of Legal Counsel, Re: Application of United States 
     Obligations Under Article 16 of the Convention Against 
     Torture to Certain Techniques that May be Used in the 
     Interrogation of High Value al Qaeda Detainees (May 30, 
     2005).
       In connection with the consideration of these opinions for 
     possible public release, the Office has reviewed them and has 
     decided to withdraw them. They no longer represent the views 
     of the Office of Legal Counsel.
                                                  David J. Barron,
                                Acting Assistant Attorney General.
  Mr. WHITEHOUSE. I yield the floor and note the absence of a quorum.
  The PRESIDING OFFICER (Ms. Heitkamp). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. RUBIO. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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