FISA Amendments Act of 2007

Floor Speech

FISA AMENDMENTS ACT OF 2007 -- (Senate - February 06, 2008)

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Mr. DURBIN. Mr. President, I am glad the majority leader has come to speak about this issue. It is hard to imagine what is going through the mind of the President that he believes he can make an argument tomorrow with the meeting at the White House, that we have been unreasonable in dealing with his nominations.

Senator Reid spelled out what happened. We tried, in many ways, to get some balance in nominations. That is done all the time so Republicans and Democrats will be appointed. It is done by both parties. I have seen it in the years I have been around the Senate. When Senator Reid made that offer in December, the White House said: No, they would not do it unless they could have this one nomination, Mr. Bradbury. And I will have to say I think Senator Reid went that extra mile, an extra 84 miles, as a matter of fact, and he basically said 84 of those Bush nominees would be confirmed.

The majority leader recounted several phone calls he received this week from Democratic nominees to bipartisan commissions. I heard from my friend, Tom Carper, not the Senator from Delaware but a friend of mine from McComb, IL, who has been nominated to serve on the board of directors of Amtrak.

Tom has been working on passenger rail issues for 20 years, 12 years as mayor of the city of McComb, IL, which is served by Amtrak. As mayor, he served as the chairman of the Amtrak Mayor's Advisory Council. He received national recognition for his leadership on Amtrak issues.

He saw firsthand the enormous potential that passenger rail service can have for towns, such as McComb, small towns that might be overlooked otherwise. He helped to make the potential of Amtrak service a reality. We have such a success story of Amtrak in Illinois in the last year or two, with dramatic increases in ridership. Tom saw this coming and was a real leader. He convinced the State of Illinois to double its State investment in Amtrak. He worked with a broad coalition of passenger, business, labor groups, and elected officials to increase Amtrak service across our State.

We are experiencing a renaissance in terms of passenger rail in our State in a short period of time. Senator Reid was given an opportunity to fill a vacancy on the Amtrak board. I asked him to consider former Mayor Tom Carper of McComb, IL. He was kind enough to recommend him. There are seven voting members on the Amtrak bipartisan board--three Republicans, three Democrats, and the Secretary of Transportation. Currently, there are four vacancies on the board, which means the board does not have enough members for a quorum, and it forces the board to conduct business via an ``Executive committee.''

On our last day of session in December, Senator Reid, I think through great effort and courtesy, rose above the President's refusal to cooperate on nominations and worked to confirm more than 80 nominations in a single day. But we could have--and should have--confirmed at least two more. Senator Reid and I worked together and offered to confirm two nominees to the Amtrak board--one Democrat, Tom Carper, and one Republican, both of whom had been favorably reported by the Commerce Committee.

The Republicans objected. They insisted that we confirm one Democrat and two Republicans or none at all. Now, this ``all-or-nothing'' approach is not new. We have seen this before when it comes to nominations.

As the majority leader described, I think the most glaring example of this is the nomination of Steven Bradbury to be Assistant Attorney General. The majority leader was willing to allow additional confirmations--and even recess appointments--for a number of nominations.

I can tell you, having dealt with Senator Reid, he bends over backward to be balanced in this approach. That is the way it has to be in the Senate. That is the way the institution operates. But the White House turned down his offer. They turned down his offer because of one nomination, the nomination of Steven Bradbury.

It was clear this request, Mr. Bradbury, was going to be rejected. Mr. Bradbury's nomination has been returned to the White House four times since he was first nominated for the job in June 2005. What part of ``no'' does the White House fail to understand?

Why does the President care so much about this one nominee that he is willing to sacrifice all these other nominees? He is going to fill the White House with people who are going to have this fine White House china in front of them, sipping coffee and tea and eating little cookies and complaining that somehow or another the Democrats in the Senate are ignoring their need to serve our Government.

We are not ignoring it. Senator Reid has offered repeatedly to confirm these nominees on a balanced basis, even giving the President 84 nominees without this balance. They have said: No deal unless we get Steven Bradbury. He is the only appointment, clearly, who is important to this administration. Why? What is it about this man? What would possibly be in his background or his potential for future service that would be so important?

Well, this is worth talking about for a minute. Steven Bradbury is the head of the Office of Legal Counsel, also known as OLC. OLC is a small office and most people have never heard of it, but it has a great deal of power, especially in this administration. The Office of Legal Counsel issues legal opinions that are binding on the executive branch of Government.

In the Bush administration, OLC has become a rubberstamp for torture policies that are inconsistent with American values and laws. In August of 2002, the Office of Legal Counsel issued the infamous torture memo. This memo sought to redefine torture, narrowing it to a limited situation of abuse that causes pain equivalent to organ failure or death. These words meant the United States was preparing to abandon generations of commitment to

outlawing and prohibiting torture. This memo also concluded the President has the right to ignore the torture statute, which makes torture a crime. This memo was official Bush administration policy for years, until it was finally leaked to the media, and the administration was forced to repudiate it.

Jay Bybee, who was then the head of the Office of Legal Counsel, signed that memo. Unfortunately, Mr. Bybee was confirmed to a lifetime appointment on the Federal bench in the Ninth Circuit before Congress and the American people learned about his complicity in the creation of this infamous torture memo, a memo that was repudiated by the Bush administration once it became public.

Jack Goldsmith succeeded Jay Bybee as head of the Office of Legal Counsel. Mr. Goldsmith is a very conservative Republican, but even he was disturbed when he heard what was happening at the Office of Legal Counsel.

As head of that office, he revoked the misguided OLC opinions dealing with warrantless surveillance and torture. He decided those opinions went too far.

Deputy Attorney General Jim Comey supported Mr. Goldsmith's actions. Let me say a word about Mr. Comey. My colleague and friend for years, Senator Schumer, first told me about Jim Comey when he was chosen to be the Deputy Attorney General under Attorney General Ashcroft. Senator Schumer told me Jim Comey was a straight shooter, an honest man who would not compromise his principles in public service. He said I could trust Jim Comey. During the period Jim Comey served in our Government, CHUCK SCHUMER was right. Jim Comey enjoys that reputation because he earned it.

We now know what happened because it has come to light that there was an infamous showdown at the bedside of Attorney General John Ashcroft, who was hospitalized in an intensive care unit, where White House Chief of Staff Andrew Card and former Attorney General Alberto Gonzales tried to pressure a then-ailing John Ashcroft into overruling Jack Goldsmith and his acts in the Office of Legal Counsel. It is hard to imagine that they would go into a hospital wing, with the acting Attorney General and with the President's Chief of Staff, to a man in an intensive care unit and try to persuade him to sign a document to overrule Jack Goldsmith.

Fortunately, Attorney General John Ashcroft, to his credit, refused. When Jack Goldsmith finally left the Justice Department, the administration realized they did not need any more trouble from the Office of Legal Counsel, they needed someone in that office who would not rock the boat, would not question their opinions, someone who would rubberstamp their policies.

So, in June 2005, President Bush nominated Steven Bradbury to succeed Jack Goldsmith--Steven Bradbury, the person who has now become the centerpiece of the entire appointment agenda of the Bush administration. Although Mr. Bradbury has never been confirmed in this position, he has effectively been head of OLC for 2 1/2 years.

In 2005, Mr. Bradbury reportedly signed two OLC legal opinions approving the legality of abusive interrogation techniques. One opinion, on so-called ``combined effects,'' authorized the CIA to use multiple abusive interrogation techniques in combination.

According to the New York Times, then-Attorney General Alberto Gonzales approved this opinion of Mr. Bradbury over the objections of then Deputy Attorney General Jim Comey, who said the Justice Department would be ashamed if the memo became public.

Mr. Bradbury also authored and Alberto Gonzales approved another Office of Legal Counsel opinion, concluding that abusive interrogation techniques, such as waterboarding, do not constitute cruel, inhumane or degrading treatment. This opinion was apparently designed to circumvent the McCain torture amendment. I was proud to cosponsor JOHN MCCAIN's torture amendment. We are in the midst of a Presidential campaign, and I suppose you have to be careful as a Democrat saying anything positive about a man who may be the Republican nominee.

But I could not think of another Senator who could speak with more authority on interrogation and torture than JOHN MCCAIN, who spent over 5 years in a Vietnam prison camp. He came to this floor and made an impassioned plea for us to make it clear that torture would not be part of American policy.

In the end, he won that amendment by a vote of 90 to 9, an amendment which absolutely prohibits cruel, inhumane or degrading treatment. Steven Bradbury, now infamous for his role in memo after memo relating to torture, felt he found a way, through an opinion, for the administration to avoid the impact of the law the President signed, the McCain torture amendment.

That is what this is about. This is not a casual situation where I find Mr. Bradbury personally offensive. We are going to the heart of a question as to whether this man can serve this country in this critical position in the White House based on what we have seen over and over again: his complicity in some of the most embarrassing chapters in this administration, including some that have been publicly repudiated.

Last fall, while the Senate was considering the nomination of Judge Michael Mukasey to be Attorney General, the judge pledged to me in writing that he would personally review all of the Office of Legal Counsel's opinions dealing with torture. He said he would determine whether each of these opinions can be provided to Congress and whether he agreed with the legal conclusions of each of these opinions. This promise made by Attorney General Mukasey to me, to the Judiciary Committee, and to the Senate is a matter of public record.

Last week, Attorney General Mukasey appeared before the same Judiciary Committee for the first time since he was confirmed. I asked him point-blank whether, as he had promised, he had reviewed all of the OLC torture opinions. I specifically asked him about Steven Bradbury's ``combined effects'' opinion, which Jim Comey said would shame the Justice Department if it became public. Sadly, the Attorney General said he had not reviewed those opinions. He realized that he had made a promise to me that he would, and we left it at that. He did acknowledge in the course of his testimony how much he respected Jim Comey, how he had turned to him for advice and believed he was an honorable man. I feel the same. I trust that Attorney General Mukasey is also an honorable man who will keep his word.

In the meantime, while all of this continues, Steven Bradbury remains as the effective head of the Office of Legal Counsel, even though it has been 2 1/2 years since he was nominated and he has never been confirmed. Legislation known as the Vacancies Reform Act prohibits a nominee from serving for this long without confirmation. It makes a mockery of the confirmation process that Mr. Bradbury assumes a role he has never been given under the law. Apparently, he is so important to the Bush administration, they are willing to violate this law to keep him in his position, and they are prepared to toss overboard scores of nominations which could be approved by this bipartisan Senate if they would only relent on this nominee, who is obviously not going to be approved. The fact that Mr. Bradbury continues to serve as the effective head of the Office of Legal Counsel appears to be an attempt to circumvent the confirmation process in order to install this controversial nominee in a key Justice Department post in the closing days of this administration.

Ironically, the Vacancies Reform Act to which I referred was passed by the Republican-controlled Congress in 1998 to limit the ability of then-President Clinton's nominees to continue to serve in an acting capacity. The legislation was specifically targeted at Bill Lann Lee, the first-ever Asian-American head of the Civil Rights Division. Apparently, the Bush administration is ignoring the very law which a Republican Congress passed to make it clear that the President does not have the authority to appoint people like Steven Bradbury in an acting capacity without confirmation.

Why has Mr. Bradbury not been confirmed? For years, the Justice Department has refused to provide Congress with copies of the opinions Mr. Bradbury authored on torture. Mr. Bradbury has refused to answer straightforward questions from myself and other members the Judiciary Committee regarding his role in this.

Here is what I said in November 2005 about Mr. Bradbury's nomination:

Since the Justice Department refuses to provide us with OLC opinions on interrogation techniques, we do not know enough about where Mr. Bradbury stands on the issue of torture. What we do know is troubling. Mr. Bradbury refuses to repudiate un-American and inhumane tactics such as waterboarding.

As I have said before, I believe that at the end of the day, when the history is written of this era, there will be chapters that will not be friendly to this administration.

In past wars, Presidents of both political parties have been guilty of excessive conduct, in their own view, as part of national security. One can remember the suspension of habeas corpus by President Lincoln during the Civil War, the Alien and Sedition Act of World War I, and the Japanese internment camps of World War II. All of these examples, as we reflect on them in history, do not reflect well on this country. Decisions were made which many wish could be undone. The same is likely to be true when it comes to the issue of torture and the war on terrorism under the Bush administration; this issue of warrantless surveillance, where for years, literally, this administration went beyond the law and attempted to intercept communications when they could have come to Congress and received bipartisan support for an approach which would have kept America and our Constitution safe.

Yesterday, we learned why Steven Bradbury is so important to the White House. We also learned why he refuses to condemn waterboarding. It was Super Tuesday, so a lot of political minds were focused on other places and other things. Unfortunately, it didn't get a lot of attention, but every American should know what happened yesterday on Capitol Hill.

In testimony before the Senate Select Intelligence Committee, CIA Director Michael Hayden acknowledged that the United States of America has used waterboarding, a form of torture, on three detainees. Waterboarding, or simulated drowning, is a torture technique that has been used since at least the Spanish Inquisition. It has been used by repressive regimes around the world.

Every year, the State Department issues a report card on human rights in which we are critical of other countries that engage in what we consider to be basic violations of human rights. Included in those basic violations is torture of prisoners. Included in that torture is waterboarding. So once a year we stand in judgment of the world and condemn them for engaging in waterboarding and torture techniques on their prisoners. Yet it is clear from the testimony yesterday of General Hayden that we have engaged in some of those techniques.

Following World War II, the United States prosecuted Japanese military personnel as war criminals for waterboarding American servicemen. The Judge Advocate Generals, the highest ranking military lawyers in each of the U.S. military's four branches, have stated publicly and unequivocally that waterboarding is illegal.

Now the United States of America has acknowledged engaging in conduct that we once prosecuted as a war crime. This is unacceptable.

Yesterday, I sent the Attorney General a letter. I wanted to spell out clearly for him, so there is no misunderstanding, why it is important that he respond to several requests which I have made for information. At the heart of it is a good man, a judge named Mark Filip, who serves in the Northern District of Illinois, a man whom I supported for his confirmation as a Federal judge and who has received positive reviews for his service on the bench.

Attorney General Mukasey would like Judge Filip to be his Deputy Attorney General. That is a good choice. But I have said to the Attorney General, there is only one thing between my enthusiastic vote for Mark Filip and his remaining on the calendar: The Attorney General has to respond to inquiries I have made, some of which were made months ago, on this critical issue of torture. I wanted to make certain that there was real clarity in my request. So I sent a letter to the Attorney General yesterday and said: Here is exactly what I am looking for, the letters we have sent, the questions we have asked, and I want you to respond to them. I hope I receive that response by the end of the day. If I receive that response and it is a good-faith response, even if I disagree with it, if it is a good-faith response, then Judge Filip can move forward. I hope he will. It is now in the hands of Attorney General Mukasey.

Let me highlight two of the questions I am asking: First, does Attorney General Mukasey agree with the legal conclusions of the Office of Legal Counsel torture memos written by Steven Bradbury, that Jim Comey believes the Justice Department would be ashamed of if they were made public? Second, will the Justice Department investigate the administration's use of waterboarding to determine whether any laws were violated? I didn't call for prosecution but simply for an honest investigation.

I recognize the Bush administration wants to confirm Steven Bradbury, to ensure they have a firewall to protect their torture policies. But what is at stake here is more important than this one nominee. This is about who we are as a country. This is about the United States, our values, our standards of conduct. This is about whether the United States can, with a straight face, be critical of regimes and countries around the world that engage in abusive interrogation techniques. This is about whether we protect American soldiers and American citizens from torture by unequivocally condemning those forms of interrogation. The United States cannot be a country that defends a practice which the civilized world has considered torture for over five centuries.

Democrats are willing to work with the President, in a bipartisan manner, to confirm nominations. But the President's response to the majority leader's work in confirming more than 80 nominations in December by renominating Steven Bradbury last month is not encouraging. If the President truly wants to confirm his nominations, he should not be pouring coffee and tea at the White House.

He ought to have his Chief of Staff, Mr. Bolten, pick up the phone and say: Let's get down to business. There are important Democrats and Republicans who can be appointed tomorrow if the President will understand that the entire fate and future of his administration should not hang on this one nominee, Steven Bradbury, who has been implicated in some of the most questionable practices of this administration. I hope the President and his Chief of Staff, after they have had their coffee with these potential nominees, will pick up the phone and work with us for the right result.

I yield the floor.

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