Executive Session

EXECUTIVE SESSION

Ms. CANTWELL. Madam President, thank you.

I rise to join my colleagues in what has been for now some many hours a very robust debate on our judicial nominees and the process by which this body should follow their advice and consent process for the President.

I think it is clear to the other side of the aisle-and it is very interesting that the two Senators from Washington are here with the two Senators from Kansas. I can imagine that we would rather talk about many other issues, particularly high unemployment in our states and how to get America moving again, and particularly in the aerospace manufacturing area. But the bottom line is, this body does have a role on advice and consent. And since the 1940s, the Senate rules have allowed cloture votes on nominations, and we have exercised that. So that is what this debate has been about.

My colleagues have continued to point out that these numbers reflect what that debate has produced as far as our working together in our constitutional role. I do want to say, though, that there is a very worthwhile point to this debate, and I would say to my colleagues on both sides of the aisle that perhaps if we wanted to even extend this debate beyond the 30 hours, we should do so because what is really at question here is the nominees the President is putting before us and whether our country, at a critical time, is going to stand up and continue to protect the privacy rights of individuals who are being threatened, those privacy rights that exist in our Constitution and are actually being challenged by our own Government.

I believe that we are at a critical time in our country's history, and that is why it is so important for the Senate to do its job. That job is to give the American people a judiciary that represents the mainstream views of America, that protects their constitutional rights, and that does not represent a clear threat to 30 years of settled law protecting a woman's right to choose.

I believe the real issue that we should debate, because it is critical to the American people, is not the fact that we have confirmed 168 Bush judges; the issue is that this Administration has nominated 4 individuals who Senators believe fail the test. Over 40 Senators believe that they will not act to protect our constitutional rights and to uphold our Constitution.

Each of these nominees-Priscilla Owen, Charles Pickering, Miguel Estrada, and William Pryor have records that indicate a determination to interpret the law not as it is but as they want it to be.

Over the next decade, Federal judges will be making critical decisions about the right to privacy and how both Government and business should respect that right to privacy. We are at the tip of the iceberg of an information age where businesses may have access to your most personal information and exploit that; where the health care industry has access to your most personal information; where Government has established a process of eavesdropping and tracking U.S. citizens without probable cause. Government has even used and developed software that can track one's use of Web sites and information on their personal computer without their consent or knowledge.

And of course, a woman's right to privacy in her choices about her body, even after 30 years of established, settled law, continues to be threatened.

I voted against these four individuals, and I will continue to oppose them. I oppose them because I believe ensuring that our judiciary is independent and committed to protecting our constitutional rights is increasing in importance and that these four cannot fill that role. It is increasing in importance because with one party in control of both the Congress and the Executive branch, and an independent and balanced judiciary is the only remaining check to ensure that our core constitutional protections are upheld.

America is a great democracy, but it is an even brighter beacon to the rest of the world because our citizens trust our judiciary to protect their rights!

Now that as a result of the Patriot Act, Government can obtain a warrant to search your home without your knowledge; can obtain a subpoena to track your use of the Internet without showing probable cause; and can obtain a secret wiretap to eavesdrop, the judiciary must serve as a check on that power.

I know some of my colleagues want to try to address some of these issues, and we will have many opportunities in the future to correct some of this overstepping by those in our Federal Government. But in a September 2003 report, the Justice Department clearly acknowledged that new powers granted under the PATRIOT Act were not simply being used to fight terrorism and espionage.

The report "cites more than a dozen cases that are not directly related to terrorism in which Federal authorities have used expanded power [under the PATRIOT Act] to investigate individuals, initiate wiretaps and other surveillance and seize millions in tainted assets."

The Government has already deprived two U.S. citizens of their constitutional rights and held them as enemy combatants subject to secret trial, and they can basically deprive legal immigrants protected by the Constitution from this arrest and detain them without charges.

Just yesterday, the New York Times reported that even in our intelligence reauthorization bill, there is language significantly expanding the role of the FBI to get information from car dealers, travel agents, post offices, casinos, and others without going before a Federal judge.

I know it is easy to want to believe that these issues are all about fighting terrorism and are not hurting people.

Madam President, I can tell you, I believe strongly in the war on terrorism. In my State, we have seen three important cases that have been successfully prosecuted. In 2000, agents apprehended Ahmad Ressam, an individual who had plans to blow up landmarks on the west coast. Last year, the FBI in my region was also successful in tracking down individuals who wanted to build a terrorist training camp in Oregon. The lead individual in that case, James Ujaama, will be providing information that I hope will lead to the extradition of an extremists cleric based in London. And a group of men in Portland actually pleaded guilty to traveling to Afghanistan to fight against Americans after September 11.

I firmly believe it is possible to fight the war on terrorism and prosecute terrorists and still uphold the constitutional rights of Americans. But to make sure that balance is right, the Senate must do its job to ensure that nominees to the federal court will interpret the law, and not use their personal views to rewrite it.

Americans are genuinely concerned about the erosion of their rights. Earlier this year in the Senate, we hosted a forum in which two individuals from my State, Nadin Hamoui and Mako Nakagawa, both testified about their experiences. Both described being awakened in the dead of night in their family homes by armed law enforcement who pointed guns at their parents, herded sisters and brothers into waiting vehicles and took them away for a long detention with no access to due process. The eerie part was that their stories occurred sixty years apart, in 1941 and 2001.

In Washington State, the echo of internment of Japanese Americans during World War II and the damage that it did is still very real, and hearing these two stories makes us aware of just how much our respect for liberty in this country can be overcome by fear.

It has never been more important to have a judiciary that vigorously protects our constitutional rights and particularly our rights to privacy. As a perfect example, just this past week, the Supreme Court agreed to hear arguments on whether prisoners at the United States Naval Base at Guantanamo Bay are entitled to access to civilian courts to challenge their open-ended detention. An independent judiciary has the courage to review Government assertions of power, and that is what we are talking about here: whether these nominees would live up to the demands of that independent judiciary.

These are good individuals. They are earnest. They are hard working. But there have been fundamental questions raised about their records and about whether they have impartially judged their cases.

Charles Pickering, we all know, has been involved in a case where he picked up the phone and intervened with the Department of Justice in an attempt to reduce a sentence mandated by Federal guidelines.

Priscilla Owen has been repeatedly had her opinions chastised by members of her own court who have called them "nothing more than inflammatory rhetoric" and "an unconscionable act of judicial activism." The San Antonio Express News actually called the nomination-or the renomination, I should say-of these two individuals, Owen and Pickering, a "misguided" and "major disappointment."

Mr. Pryor, again, I am sure a well-meaning individual, sought to limit the Violence Against Women Act-and a fellow Republican attorney general had this to say about him:

I have great questions about whether Mr. Pryor has the ability to be nonpartisan. I would say he was probably the most doctrinaire and most partisan of any attorney general I dealt with in 8 years.

Are these the individuals we want to trust with lifetime appointments to protect our constitutional rights and to uphold those rights?

The PRESIDING OFFICER. The Senator's time has expired.

Ms. CANTWELL. Madam President, how much time have I used?

The PRESIDING OFFICER. The Senator has used 11 minutes. There are less than 10 minutes remaining.

Ms. CANTWELL. If my colleague from Washington would allow, I would like to continue.

Mrs. MURRAY. How much more time does the Senator need?

Ms. CANTWELL. Three minutes.

Mrs. MURRAY. I yield 1 more minute to my colleague from Washington.

Ms. CANTWELL. I thank my colleague. Madam President, in voting against these individuals, the Senate is doing the job the American people expected us to do.

In order to continue to have this great democracy, we must ensure we have vital checks on this administration's power. The American people are expecting their judiciary to be independent, to respect precedent, and not to prejudge the issues before them. The American people think we need a fair and balanced judiciary to counterbalance the executive and legislative branch, and we need to give them that.

These four individuals have demonstrated records of reaching beyond the law in order to reach their preferred ideological outcome. The Federal judiciary will not rise or fall on the fate of these four individuals, but in order to be a great democracy, in order to continue shining as the world's brightest beacon for individual rights, we need to have an independent judiciary, Without the important check that this Senate provides by doing our job in advising and consenting with the President on these issues, that will not be possible.

I yield the floor.