American Recovery and Reinvestment Act of 2009

Floor Speech

AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 -- (Senate - February 02, 2009)

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Mr. CORNYN. Madam President, I come to the floor more with regret than anything else to say I oppose the nomination and confirmation of Eric Holder to be the next United States Attorney General. I say this to my colleagues because I have approached this nomination with an open mind and actually a predisposition to vote for his confirmation. But, of course, we Senators have a constitutional duty--in providing advice and consent to the executive branch's executive nominations like this one--to ask hard questions and to get the answers to those questions so our advice and consent may be an informed consent.

While I approached this nomination with an open mind and a predisposition to vote for Mr. Holder's confirmation, I ultimately concluded that, as a result of the reasons I will detail momentarily, I could not vote for his confirmation in good conscience.

Mr. Holder's experience in many ways uniquely qualifies him for this promotion as Attorney General, but it is that very same experience when he served as Deputy Attorney General that calls into question his independence and judgment, particularly when the President of the United States at the time, President Bill Clinton, basically wanted something out of the Department of Justice. This had to do specifically with two clemency petitions, one for the FALN terrorists and the other for the notorious Marc Rich. These two actions--where President Clinton commuted the sentence of 16 Puerto Rican terrorists and the recommendation to pardon the billionaire fugitive, Marc Rich--raised serious questions about Mr. Holder's independence and judgment.

When Mr. Holder came to my office, I asked him: Is there any reason you would resign rather than carry out the orders of a President if you were Attorney General?

He quickly said: Of course. If the President asked me to do something illegal or unethical, then I would resign rather than carry out those instructions.

Well, no one is suggesting that what Mr. Holder did was illegal, given the fact that the President of the United States solely had the prerogative whether to grant these commutations, but I think any fairminded consideration of Mr. Holder's conduct under these commutations raises some serious questions whether he could hold himself to the very same standard that he articulated in my office.

Two other aspects of Mr. Holder's record concern me. One is his demonstrated lack of seriousness regarding the profound threat posed by radical Islamic terrorism; secondly, as some Senators on my side of the aisle have already pointed out, his apparent hostility to the second amendment, the right to keep and bear arms, under our Constitution.

In the Judiciary Committee, on which I am proud to serve, Mr. Holder failed to answer my questions and the questions of my colleagues in a way that alleviated these concerns. In fact, I found many of his responses to be simply evasive.

As I said earlier, I have four reasons for opposing this nomination: one, Mr. Holder's role in the FALN and Los Macheteros commutations, his role in the Marc Rich pardon, his misjudgments and shifting opinions on the war on terrorism, and his record of hostility to the individual right to keep and bear arms.

I think it is important to point out the facts of the commutations because they really are alarming, and many of our memories may have been dimmed because many of these events occurred long in the past.

In August 1999, President Clinton offered clemency to 16 members of two Puerto Rican separatist terrorist organizations, the FALN and Los Macheteros. Deputy Attorney General Eric Holder made the recommendation that he should do so.

The FALN, in case people do not recall, was a clandestine terrorist group devoted to bringing about the independence of Puerto Rico through violent means. Its members waged open war on America, with more than 150 bombings, arsons, kidnappings, prison escapes, and threats and intimidation, all of which resulted in the deaths of at least 6 people and injuries to many more between 1974 and 1983.

The most gruesome of these attacks occurred in 1975 at a bombing in Lower Manhattan. Timed to explode during lunchtime, the bomb decapitated 1 of the 4 people killed and injured another 60. It is hard for us to imagine what it would be like today if this were to occur, but that, in fact, is what the FALN was found guilty of.

In another attack in Puerto Rico, Los Macheteros terrorists opened fire on a bus full of U.S. sailors, killing two, wounding nine.

Fortunately, much of the leadership of these terrorist groups was captured and brought to justice in the 1970s and 1980s. But by the mid-1980s, thankfully, the worst of their reign of terror was over.

In the early 1990s, sympathetic activists petitioned for clemency on behalf of members of these groups. It was an easy call for the Pardon Attorney. That is the title of the individual whose responsibility it is to screen requests for clemency. These unrepentant terrorists had not even bothered to petition for clemency themselves. So Pardon Attorney Margaret Love, who worked for then-Deputy Attorney General Jamie Gorelick, recommended against clemency for any of these prisoners, and her recommendation was transmitted to the President. But after Eric Holder became Deputy Attorney General, he rescinded that recommendation opposing clemency and he recommended that President Clinton grant clemency to these unrepentant terrorists.

Strangely, and really inexplicably, from my perspective, Mr. Holder now continues to stand by these recommendations as ``reasonable.'' But I do not think the reasons he gives are persuasive.

Mr. Holder, first of all, claims these individuals are not ``linked to violence.'' That is clearly false. These men were active members of terrorist groups that committed dozens of violent crimes, as I described a moment ago. It is true that they individually were not prosecuted for the worst of those crimes, but by that standard, anyone who conspires to commit violence and murder is not linked to violence, only those who actually execute the orders of the higher ups.

These commutations were, at the time, widely believed to be politically linked. Indeed, the Clinton White House discussed how the clemencies would affect then-Vice President Gore's aspirations for higher office, particularly among the Puerto Rican community. For this reason, I believe a full accounting of the individuals Mr. Holder met with, what they discussed, and what went into his decisions in recommending these commutations is in order.

But there is another reason these questions should be answered; that is, it is only fair and just that the victims of the violence of these two terrorist groups be provided answers.

I would encourage all of my colleagues before voting to review the testimony of Joseph Connor, whose father was killed in the bombing in Lower Manhattan. Mr. Connor testified that Mr. Holder did not consult with him, did not contact him or his family or other victims before recommending that the FALN terrorists go free. I cannot vote for Mr. Holder's nomination until I can explain my vote to Joseph Connor.

Less than 2 years after the controversial recommendation for commuting the sentences of these FALN terrorists and Los Macheteros terrorists, on the very last night of the Clinton administration, Mr. Holder made a very similar error in judgment when he recommended that President Clinton pardon the notorious fugitive Marc Rich. At the time, Mr. Rich was No. 6 on the FBI's Most Wanted list.

In 1983, then-U.S. attorney Rudy Giuliani got an indictment of international commodities trader Marc Rich and his business partner Pincus Green. The indictment charged 65 counts of tax evasion, racketeering, and trading with the enemy. Specific charges include illegally trading with the Ayatollah Khamenei's Iranian terrorist regime, in violation of U.S. energy laws and the trade embargo against Iran. Indeed, Mr. Rich made a fortune trading with the Ayatollah's regime at the same time that 52 American diplomats were being held hostage in Tehran. Mr. Rich profited by trading with Cuba, Libya, and South Africa during apartheid, all despite U.S. embargoes.

Rather than face the charges, Mr. Rich fled to Switzerland, where he remained a fugitive for 17 years. Law enforcement, including CIA, the NSA, and other Federal agencies, expended substantial resources in trying to apprehend Mr. Rich. These efforts included extradition requests and attempts by U.S. marshals to seize him abroad.

Mr. Rich refused to return to the United States despite an offer by prosecutors that they would actually drop the racketeering charges in exchange for his return. In a final effort to avoid extradition, Mr. Rich went so far as to renounce his U.S. citizenship. He tried to become a citizen of Bolivia.

It is hard for me to imagine anyone less deserving of clemency by the President of the United States than a fugitive from justice accused of trading with the enemy. Mr. Rich's own lawyer told him that he ``spit on the American flag'' by avoiding the jurisdiction of our courts.

On the last evening of the Clinton administration, White House Counsel called Mr. Holder to solicit his views on the Rich pardon. As Deputy Attorney General, Holder was effectively speaking for the entire Department during this crucial call. Strongly disregarding the views of the hundreds of DOJ prosecutors and FBI agents who had worked nearly two decades to bring Mr. Rich to justice, Holder told White House Counsel Beth Nolan that he was ``neutral, leaning favorable.'' With this recommendation from the Deputy Attorney General in hand, President Clinton granted the Rich pardon, in one of his last and most inexplicable actions.

Senator Specter, the distinguished ranking member from Pennsylvania, correctly recounted what former FBI Director Louis Freeh said about that pardon. He called it a ``corrupt act.'' Now, Mr. Holder has, during hearings, accepted fault and admitted that he made a mistake. I do not know how he can do any differently. But never in a full day of hearings and written questions did Mr. Holder offer a good reason for supporting the pardon in the first place. He defends himself by saying he was naive. He admits it was a mistake and promises he will not make the same mistake again. But this is difficult to square with the fact that 2 years earlier, Mr. Holder agreed that the FALN commutations were a reasonable act. It appears to be something of a trend here.

The other area I am very concerned about, as I mentioned earlier, is the questions I asked Mr. Holder about the war on terrorism. Of course, it is hard for us now to recount the horrors of 9/11 when al-Qaida commandeered airplanes and hit here in Washington, DC, and New York, killing 3,000 Americans. It was in the wake of that that, of course, the Congress authorized the use of military force against al-Qaida in Afghanistan and against the Taliban. It is in the wake of that that Congress passed the PATRIOT Act to provide enhanced tools to our law enforcement agencies and our intelligence agencies to try to make sure 9/11 never, ever happened again.

The Department of Justice, particularly in the Office of Legal Counsel, was struggling with new efforts to try to figure out how to protect Americans from future attacks. I believe they struggled in good faith to try to come up with legal guidance for our President, his administration, and the intelligence authorities to make sure they were operating within the limits of the law, which, of course, prohibits torture. But I want to recount what Mr. Holder said in January 2002, which is at stark odds with what he has said now in 2008. He said in January 2002 that captured al-Qaida terrorists ``are not, in fact, people entitled to the protection of the Geneva Conventions. They are not prisoners of war.'' He went on to endorse indefinite detention of terrorists at Guantanamo Bay and argued that such prisoners should not be afforded Geneva Convention protections so that they could be interrogated and provide actionable intelligence that could prevent future attacks. But more recently, taking perhaps a more political or ideological bent, he chastised the Bush administration for policies he now seems to believe defy the law.

I want to quote at length from an Associated Press article entitled ``Obama AG pick defended Guantanamo policy,'' dated November 22, 2008. According to this article, when asked whether terrorism suspects could be held forever, Holder responded:

It seems to me you can think of these people as combatants and we are in the middle of a war.

Holder said in a CNN interview in January 2002:

And it seems to me that you could probably say, looking at precedent, that you are going to detain these people until the war is over, if that is ultimately what we wanted to do.

Just weeks later, this article goes on to say, Holder told CNN he did not believe al-Qaida suspects qualified as prisoners of war under the Geneva Conventions.

He said:

One of the things we clearly want to do with these prisoners is to have an ability to interrogate them and find out what their future plans might be, where other cells may be located. Under the Geneva Conventions, you are really limited in the amount of information that you can elicit from people.

Holder said it was important to treat detainees humanely, but he said they ``are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war.''

In this article, he also downplayed criticism that these detainees were being mistreated. Now, these were essentially the same arguments being made by the Bush administration in the wake of 9/11. Since then, those arguments, as we all know, have been criticized by human rights groups, leading Democrats, and, surprisingly enough, Mr. Holder himself.

He gave a speech to the American Constitution Society in June of 2008 where he said, ``We must close our detention center at Guantanamo Bay.''

He said:

A great nation should not detain people, military or civilian, in dark places beyond the reach of law. Guantanamo Bay is an international embarrassment.

He added that he never thought he would see the day where ``The Supreme Court would have to order the President of the United States to treat detainees in accordance with the Geneva Convention.''

Those sharply contrasting positions from 2002 to 2008 make me wonder if this is the same person, the same Eric Holder. Moreover, it makes me wonder what it is he truly believes. In 2008, Mr. Holder, in a speech before the American Constitution Society, attacked many of the positions he once held as ``making a mockery of the rule of law.'' In that speech he called for ``a reckoning'' over the Bush administration's ``unlawful practices in the war on terror.'' He also accused the Bush administration of ``act[ing] in direct defiance of Federal law'' and railed against counterterrorism policies that he claimed ``violate international law and the United States Constitution.'' It is one thing to change your mind; it is another thing to change your mind and attack the very position you once held as one that could only be held in bad faith. It is cynical to characterize a position you once held later as ``making a mockery of the rule of law.''

The recent attacks in Mumbai have reminded Americans of the possibility of another attack, literally anywhere in the world by committed terrorists. On November 26, 2008, Mumbai was ravaged by a gang of terrorists. More than 170 people died as a result of bombings and gunfire, including 6 Americans. If an American city were targeted in the same manner as Mumbai, or worse--let's say these terrorists had a biological, chemical, or nuclear device--it is critical that our laws give law enforcement personnel, intelligence personnel, the President of the United States the very intelligence they need in order to detect and defeat those attacks. Our intelligence officials and those who act consistent with interpretations of the law from the Office of Legal Counsel at the Department of Justice need to know the law is not going to change after they act consistent with what they understand the law to be in order to protect American citizens from future attacks.

I worry about Mr. Holder's shifting opinions on what the law provides for and what it does not. I worry about the chilling effect it will have on future intelligence officials who may decide rather than risk prosecution by shifting opinions on what the law provides or does not, rather than risking everything I have worked a lifetime for, including what I have provided for my family, I am going to play it safe. From what we learned on 9/11, according to the 9/11 Commission, when we treat it safe, when we treat terrorism as a criminal act alone, we invite future attacks against our country.

For all these reasons, I oppose the nomination.

I ask unanimous consent that a letter from a number of hunting groups, anglers, landowners, and conservation groups in my State be printed in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

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