Executive Session

Floor Speech

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Mr. DURBIN. Madam President, pending before the Senate is the nomination of David Ogden to be the Deputy Attorney General. I rise to speak in support of that nomination.

The Justice Department and our Nation are fortunate that President Obama has put forward this nomination. Mr. Ogden has the experience, the talent, and the judgment needed for this critical position.

The Deputy Attorney General is the No. 2 person at the Justice Department. He is the day-to-day manager of the entire agency. This includes supervising key national security and law enforcement offices such as the FBI and our counterterrorism operations. Mr. Ogden is a graduate of Harvard Law School, former law clerk to a Supreme Court Justice, which is one of the most prestigious jobs in the legal profession. He had three senior positions in the Janet Reno Justice Department and served as her Chief of Staff, Associate Deputy Attorney General, and also served as Assistant Attorney General in the Civil Division, a position for which he received unanimous confirmation by this Senate. Mr. Ogden also served as the Deputy General Counsel at the Defense Department.

Given this excellent background, it is not surprising that David Ogden gained the support of many prominent conservatives. At least 15 former officials of the Reagan and both Bush administrations have announced their support for his nomination. They include Larry Thompson, the first Deputy Attorney General of the most recent Bush administration; Peter Keisler, former high-level Justice Department official; and Rachel Brand, another high-level Justice Department official in the Bush administration. Their words are similar. I will not read into the Record each of their statements, but they give the highest possible endorsement to David Ogden.

Due to a scheduling conflict, I could not attend his hearing, but I asked him to come by my office so we could have time together and I could ask my questions face to face. We talked about a lot of subjects, including criminal justice reform, human rights, and the professional responsibilities of the Department of Justice lawyers. I was impressed by Mr. Ogden's intellect, his management experience, and his commitment to restoring the Justice Department's independence and integrity.

We talked about the Senate Judiciary Committee's Subcommittee on Crime and Drugs, a subcommittee I will chair in the 111th Congress, and the issues we are going to face--including the Mexican drug cartels, which will be the subject of a hearing in just a few days, racial disparities in the criminal justice system in America, and the urgent need for prison reform. That is an issue, I might add, that is near and dear to the heart of our colleague, Senator Jim Webb of Virginia. I am going to try to help him move forward in an ambitious effort to create a Presidential commission to look into this.

The Justice Department will play an important role in reclaiming America's mantle as the world's leading champion for human rights. Mr. Ogden and I discussed the Justice Department's role in implementing President Obama's Executive orders in relation to the closure of the Guantanamo Bay detention facilities and review of detention and interrogation policies. We discussed the investigation by the Justice Department's Office of Professional Responsibility, as to the attorneys in that Department who authorized the use of abusive interrogation techniques such as waterboarding. Senator Sheldon Whitehouse of Rhode Island and I requested this investigation. Mr. Ogden committed to us that he would provide Congress with the results of the investigation as soon as possible. This is the kind of transparency and responsiveness to congressional oversight we expect from the Justice Department and something that we have been waiting for.

We also discussed the Justice Department's role in ensuring that war criminals do not find safe haven in the United States. I worked with Senator Coburn who is a Republican from Oklahoma, on the other side of the aisle. We passed legislation allowing the Justice Department to prosecute the perpetrators of genocide and other war crimes in the U.S. courts. I believe Mr. Ogden appreciates the importance of enforcing these human rights laws.

At the end of our meeting, I felt confident David Ogden will be an excellent Deputy Attorney General.

I want to make one final point. There is some controversy associated with his appointment that I would like to address directly. I am aware there has been some criticism that David Ogden represented clients whom some consider controversial. He has been criticized in his representation of libraries and bookstores who sought first amendment free speech protections, and for his representation of a client in an abortion rights case.

I would like to call to the attention of those critics a statement that was made by John Roberts, now Chief Justice of the U.S. Supreme Court, when he appeared before the Senate Judiciary Committee several years ago at his confirmation hearing.

He was asked about the positions he had advocated on behalf of his clients as an attorney. Here is what the Chief Justice told us:

It's a tradition of the American Bar Association that goes back before the founding of the country that lawyers are not identified with the positions of their clients. The most famous example probably was John Adams, who represented the British soldiers charged in the Boston Massacre. He did that for a reason, because he wanted to show that the Revolution in which he was involved was not about overturning the rule of law, it was about vindicating the rule of law.

And he went on to say:

That principle, that you don't identify the lawyer with the particular views of the client, or the views that the lawyer advances on behalf of a client, is critical to the fair administration of justice.

You practiced law, Madam President. I have too. Many times you find yourself in a position representing a client where you do not necessarily agree with their position before the court of law. But you are dutybound to bring that position before the court so the rule of law can be applied and a fair outcome would result. If we only allowed popular causes and popular people representation in this country, I am afraid justice would not be served.

Chief Justice Roberts made that point when he was being asked about his representation of legal clients. I would say to many on the other side of the aisle who are questioning David Ogden's reputation, they owe the same fairness to him that was given to Chief Justice Roberts in that hearing.

I would remind the conservative critics of Mr. Ogden, look carefully at that testimony. What is good for the goose is good for the gander.

After 8 years of a Justice Department that often put politics over principle, we now have a chance to confirm a nominee with strong bipartisan support who can help restore the Justice Department to its rightful role as guardian of our laws and the protector of our liberties.

David Ogden has the independence, integrity, and experience for the job. I urge my colleagues to join me in voting for his nomination to be Deputy Attorney General.

CLEAN COAL RESEARCH PROJECT

Mr. DURBIN. Madam President, it was about 7 years ago when the Bush administration announced what they said was the most significant coal research project in the history of the United States. The name of the project was FutureGen. The object was to do research at a facility to determine whether you could burn coal, generate electricity, and not pollute the environment. It is an ambitious undertaking.

The way they wanted to achieve it was to be able to capture the CO2 and other emissions, virtually all of them coming out of a powerplant burning coal, and to sequester them; that is, to stick them underground, find places underground where they can be absorbed by certain geological foundations, safely held there. Of course, it was an ambitious undertaking. It had never been done on a grand scale anywhere in the country.

Well, the competition got underway and many States stepped forward to compete for this key research project on the future of coal. There were some five to seven different States involved in the competition. My State of Illinois was one of them. The competition went on for 5 years.

Each step of the way, the panel of judges, the scientists and engineers would judge the site. Is this the right place to build it? Is it going to use the right coal? Can they actually pump it underground and trap it so that it will not ever be a hazard or danger at any time in the future? Important and serious questions.

My State of Illinois spent millions of dollars to prove we had a good site. When it finally came down to a decision, there were two States left: Texas and Illinois. Well, I took a look around at our President and where he was from, and I thought, we do not have a chance. Yet the experts made the decision and came down in favor of Illinois. They picked the town of Mattoon, IL, which is in the central eastern part of our State, in Coles County, and said that is the best place to put this new coal research facility.

We were elated. After 5 years of work, we won. After all of the competition, all of the different States, all of the experts, all the visits, everything that we put into it, we won the competition.

Within 2 weeks, the Secretary of the U.S. Department of Energy, Mr. Bodman, came to my office on the third floor of the Capitol and said: I have news for you.

I said: What is that?

He said: We are canceling the project.

I said: You are cancelling it? We have been working on this for 5 years.

He said: Sorry, it cost too much money. The original estimate was that this was going to cost $1 billion. When the President first announced it, we knew inflation would add to the construction costs over some period of time. But here was Mr. Bodman saying it cost almost twice as much as we thought it would cost; therefore, we are killing the project.

Well, I was not happy about it. In fact, I thought it was totally unfair, having strung us along for 5 years, made my State and many others spend millions of dollars in this competition, go through the final competition and win, and then be told, within 2 weeks: It is over; we are not going to go forward with it.

So I said to Mr. Bodman: Well, you are going to be here about a year more, and I am going to try to be here longer. At the end of that year, when you are gone, I am going to the next President, whoever that may be, and ask them to make this FutureGen research facility a reality.

I told the people back home: Do not give up. Hold on to the land we have set aside. Continue to do the research work you can do. Bring together the members of the alliance--which are private businesses, utility companies, coal companies--not only from around the United States but around the world interested in this research and tell them: Don't give up.

So we hung on for a year, literally for a year, and a new President was elected. It happened to be a President I know a little bit about, who was my colleague in the Senate, Senator Obama. When we served together, he knew all about this project and had supported it.

So now comes the new administration and a new chance. The Obama administration has said to me and all of us interested in this project: There is one man who will make the decision: it is the Secretary of Energy, Dr. Chu. He
is a noted scientist who will decide this on the merits. He is going to decide whether this is worth the money to be spent. So we made our appeal to him, we presented our case to him, and left it in his hands. We are still worried about this whole issue of cost.

Bart Gordon, a Congressman from the State of Tennessee and serves on the House Science Committee, he sent the Government Accountability Office to take a look at FutureGen to find out what happened to the cost, why did it go up so dramatically.

Well, the report came out last night. Here is what the report found. The report found the Department of Energy had miscalculated the cost of the plant, overstating its cost by $500 million because they made a mathematical error--$500 million.

Taking that off the ultimate cost brings it down into the ordinary construction inflation cost. And so many of us who argued their estimate of cost was exaggerated now understand why. They made a basic and fundamental error calculating the cost of this project.

Here is what we face. Now, 53 percent of all the electricity in America is generated by coal. Burning coal can create pollution. Pollution can add to global warming and climate change, and we have to be serious about dealing with it.

This plant is going to give us a chance to do that. When the GAO took a look at the Department of Energy documentation, they also discovered a memo which said: If we kill the FutureGen coal research plant, we will set coal research back 10 years with all of the time they put into it. All of the effort they put into it would have been wasted and could not be replicated.

So that is what is at stake. The ultimate decision will be made by Dr. Chu at the Department of Energy. I trust that he will find a way to help us move forward, but I want him to do it for the right scientific reasons.

If we are successful, we will not only be able to demonstrate this technology for America but for the world. The reason why foreign countries are joining us in this research effort is what we discover will help them. China is building a new coal-fired plant almost every week and is going to be adding more pollution to the environment than we can ever hope to take care of in the United States alone.

But if we can find a way, a technology, a scientific way, using the best engineering and capture that pollution before it goes into the air, it is a positive result not just for the United States but for the world.

From a parochial point of view, we happen to be sitting on a fantastic energy reserve right here in America. There are coal reserves all across the Midwestern United States, and almost 75 percent of my State of Illinois has coal underneath the soil. It is there to be had and used. But we want to use it responsibly.

We want to make sure at the end of the day that we can use coal and say to our kids and grandkids: We provided the electricity you needed but not at the expense of the environment you need to survive.

So this finding by the GAO has given us a new chance. We are looking forward to working with the Department of Energy. For those back in Illinois who did not give up hope, we are still very much alive, and this latest disclosure gives us a chance to bring the cost within affordable ranges. I hope the Department of Energy will decide to move forward on this critical research project.

I yield the floor, and I suggest the absence of a quorum.

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