Ecxecutive Session

EXECUTIVE SESSION

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Mr. CORNYN. Mr. President, the distinguished chairman of the Judiciary Committee has pointed out the Deputy Attorney General is a member of the national security team of the President, and the President has already used the authority under the Constitution to make a recess appointment of this nominee. But the question before the Senate today is whether the Senate should confirm the nomination of James Cole to serve as Deputy Attorney General.

There are three reasons why I oppose this nomination. The first is Mr. Cole is one of the earliest and most vociferous advocates of bringing foreign al-Qaida terrorists to American cities for civilian trials--a position since repudiated by the Attorney General himself in the case of Khalid Shaikh Mohammed, and I am grateful for that. But Mr. Cole has never recanted his position that, in effect, these are criminal cases to be prosecuted as ordinary crimes rather than terrorist acts during a time of war.

The problem, of course, with the paradigm of treating terrorism as a criminal case is that we don't punish the terrorists until they have actually been successful in committing a terrorist attack. In war, half the battle--maybe more than half the battle--is trying to stop the terrorist from actually accomplishing his or her goal of killing innocent people. We do that by interrogating detainees and finding out what they know about the organization and plans of terrorist attacks. Mr. Cole, unfortunately, stands by the outdated, outmoded characterization of these terrorist attacks being ordinary crimes. Of course, they are something much worse indeed.

Quite frankly, as Mr. Holder's Deputy, Mr. Cole will only exacerbate the worst tendencies of the Department of Justice when it comes to distinguishing between criminal prosecutions and fighting a war against terrorists. This was, of course, the primary reason why Mr. Cole's nomination was unanimously rejected by Republicans in the Judiciary Committee. The American people want a Department of Justice that is committed to enforcing the law and protecting the innocent, not creating new civil rights for terrorists or treating them as ordinary criminals when they are something else indeed.

In fact, the recent death of Osama bin Laden was a product of a lot of intelligence gathering that occurred over the years. That would never have occurred under Mr. Cole's proposed model of Mirandizing these people when they are arrested; telling them they do not have to provide any information because they are being treated as ordinary criminals rather than as terrorists who are eligible for rough interrogation, if necessary, in order to find out what they know in order to save innocent lives.

Rather than listening to the concerns of Republicans on the Judiciary Committee about Mr. Cole's narrow view of the war on terror and of the views of the American people and perhaps reconsidering this flawed nomination, the President decided to plow ahead and bypass the advise and consent process with a recess appointment. As I said, he, of course, has the right to do so.

There are actually a couple other reasons why I oppose the nomination, and I wish to first express my appreciation to Senator Chambliss and Senator Grassley. Senator Chambliss, of course, is the ranking member of the Senate's Select Committee on Intelligence, and Senator Grassley is the ranking member of the Senate Judiciary Committee.

They have continued to demand information from the Department of Justice and have been stonewalled at every turn. Senator Chambliss and his colleagues on the Intelligence Committee have made perfectly reasonable requests consistent with the committee's oversight responsibilities related to the Obama administration's Guantanamo Detainee Review Task Force. Senator Grassley, on the other hand, from his position as the ranking Republican on the Judiciary Committee, on which I serve, has requested documents concerning serious allegations that the Bureau of Alcohol, Tobacco, Firearms and Explosives knowingly allowed straw purchasers to buy firearms which were then provided to criminal drug cartels in Mexico. It has later been reported that at least two of these weapons were found at the scene where a Border Patrol agent named Brian Terry was murdered.

I fully support Senators Grassley and Chambliss and regret that repeated requests for information that were well within the purview of the oversight responsibilities of Congress have been unreasonably rejected. When a minority in the Senate is denied the usual and customary information necessary for us to do our job, we are left

with very few options. One of those options is to force a resolution by exercising our rights as a minority to block cloture. That is not necessarily a permanent move. It means debate continues on the nomination and we cannot come to a vote. But I submit, if rational minds would come together--if Senator Grassley and Senator Chambliss could get the information they and their committees are entitled to and discharge their oversight responsibilities--we could come much closer to resolving the differences on this particular nominee.

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