Stealth Survey
Floor Speech
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Mr. GRASSLEY. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.
Mr. GRASSLEY. Madam President, I assume that we are now on the Cole nomination?
The ACTING PRESIDENT pro tempore. We are on the nomination.
Mr. GRASSLEY. Madam President, earlier this year the Senate expressed its opposition to proceeding to Mr. Cole's nomination when it failed to invoke cloture. I was a strong advocate against the Senate invoking cloture on Mr. Cole's nomination because the Justice Department had failed to respond to a legitimate oversight request that both Senator Chambliss and I made relating to two separate topics.
The Justice Department was withholding vital documents related to my inquiry of the Bureau of Alcohol, Tobacco and Firearm's Operation Fast and Furious and to an inquiry by Senator Chambliss in his capacity as vice chairman of the Select Committee on Intelligence.
As ranking member of the Judiciary Committee, I have been seeking and still seek documents, information, and access to witness interviews to determine who approved Operation Fast and Furious. This was an operation that you have heard me talk about often where ATF agents were ordered to knowingly allow straw buyers to obtain weapons on behalf of criminals and traffickers intent on smuggling those weapons into Mexico.
The courageous agents who blew the whistle and testified about their efforts to warn supervisors about the dangers referred to this practice as ``walking guns.'' Of the more than 1,800 weapons allowed to ``walk,'' hundreds have been recovered in connection with crimes in the United States and Mexico, including two such weapons in connection with the murder of Border Patrol agent Brian Terry.
After seeking information from the Justice Department, I was repeatedly told that the ATF did not knowingly allow these sales. Working with Congressman Issa, who is chairman of the House Government Oversight Committee, we released information that showed that the initial denials were false. This risky policy was, in fact, implemented at ATF and the Justice Department.
Despite the seriousness of the whistleblowers' allegations and my repeated inquiries, the Justice Department continued to deny me access to the documents. As a result, I urged my colleagues to oppose cloture on James Cole to be Deputy Attorney General. Well, that cloture opposition worked. We have since reached an agreement with the Justice Department and Senator Leahy that will guarantee my access to vital document information and witnesses regarding this ATF operation.
I also understand that Senator Chambliss has reached an agreement on obtaining the information he has sought on behalf of the Intelligence Committee. Accordingly, I now lift my opposition to the Senate holding a vote on Mr. Cole's nomination. However, I want to explain that I am going to vote against his nomination for many reasons.
I oppose the nomination of James Cole to be Deputy Attorney General at the Department of Justice because I have serious concerns regarding Mr. Cole's qualifications. In addition, I am troubled by President Obama's recess appointment of Mr. Cole to this position. I have been consistent in my opposition to recess appointments over the years on committees where I have been chairman or ranking member. Whenever the President bypasses the Senate; in other words, bypasses our confirmation of a person, by making a recess appointment, such nominees will not receive my support where I have been lead on my side responsible for reviewing such nominees.
We have a process in place for nominations, and if the President is not willing to work with Senators to clear nominations, the nominee should not get a second bite at the apple. The Deputy Attorney General is second in command at the Justice Department and is responsible for overseeing the day-to-day operations of the Department.
Managing this vast bureaucracy is a difficult task that requires a serious commitment to protecting our national security, enforcing our criminal laws, and safeguarding taxpayer dollars. We need a qualified leader who has the smarts, the capability, and the willingness to manage Department programs and root out inefficiencies and abuse in those programs.
After reviewing all of his responses and his hearing testimony, I concluded that I could not support Mr. Cole's nomination to be Deputy Attorney General. In particular, I am seriously concerned about Mr. Cole's views on national security and on terrorism. Back in 2002, Mr. Cole was author of an opinion piece in the Legal Times. In that piece he stated:
For all the rhetoric about war, the September 11 attacks were criminal acts of terrorism against a civilian population, much like terrorist acts of Timothy McVeigh in blowing up the federal building in Oklahoma City, or of Omar Abdel-Rahman in the first effort to blow up the World Trade Center. The criminals responsible for those horrible acts were successfully tried and convicted under our criminal justice system without the need for procedures that altered traditional due process rights.
But I want to quote further.
The acts of September 11th were horrible, but so are ..... other things.
The other things he referred to were the drug trade, organized crime, rape, child abuse and murder. Mr. Cole's opinion piece argued that notwithstanding the involvement of foreign organizations such as al-Qaida, we have never treated criminal acts influenced by foreign nationals or governments as a basis for ``ignoring the core constitutional protections engrained in our criminal justice system.''
Mr. Cole concluded his opinion piece by arguing that in addition to stopping future terrorist attacks, the Attorney General is a criminal prosecutor and that he has a special duty to apply constitutional protections ingrained in our criminal justice system to even including terrorists captured on foreign battlefields.
Mr. Cole wrote this opinion piece 2 days short of the first anniversary of the September 11 attacks. Given the close proximity in time to the September 11 attacks, we must accept this opinion piece as Mr. Cole's true beliefs about the application of the civilian criminal justice system to terrorism cases, including those who masterminded the 9/11 attacks.
From the opinion piece and his responses to our inquiry, it appears that if given a choice of prosecuting high-ranking terrorists in civilian courts or military commissions, Mr. Cole would likely favor civilian courts based upon his longstanding belief in the role that the Attorney General plays in protecting the principles of the criminal justice system.
Absent a clear statement from Mr. Cole about what factors would warrant selecting a civilian or a military forum, it is hard to look at his entire record of past opinion, his testimony and responses to our questions, and reach any different conclusion.
In fact, my concerns about the individuals at the Justice Department supporting prosecution of terrorists in civilian criminal court have been validated by recent events surrounding the arrest of two Iraqi nationals at Bowling Green, KY. These Iraqi nationals have admitted targeting American troops in Iraq, plotting to equip foreign fighters in Iraq with weapons such as grenades and missile launchers. They made their way to our country and somehow got past the Department of Homeland Security.
After they were identified, the Justice Department is seeking to try them in civilian court even though their activities regarded terrorist activities and took a very military approach.
Attorney General Holder has been steadfast in supporting their prosecution in civilian court. It appears to me that no one in the Justice Department, including Mr. Cole, has objected to prosecuting these individuals in civilian court. This is despite the clear nexus to the battlefield in Iraq. So it now appears the Justice Department, where Mr. Cole currently serves as a recess-appointed Deputy Attorney General, rewards terrorists who are smart enough to evade Homeland Security's determination on whether they can come to this country, and at the same time make their way from the battlefield with the same rights and privileges as American citizens.
All of this occurred on Mr. Cole's watch as Deputy Attorney General.
Military tribunals have many advantages to civilian criminal courts and are better equipped to deal with dangerous terrorists and classified evidence while preserving due process. I am troubled that Mr. Cole does not appear to share this belief. Because of his responses and testimony, I have serious concerns about his support for civilian trials for terrorists captured on a foreign battlefield. This is of particular concern, given that the Deputy Attorney General oversees the National Security Division at the Justice Department.
Now for a second reason. I have concerns about Mr. Cole's abilities relative to oversight of government programs. We asked about oversight of the Department of Justice's grant programs. When he was asked, Mr. Cole failed to commit to a top-to-bottom review of the programs, nor has he undertaken such a review since he was recess appointed. Given the enormous Federal deficits and enough examples of the tremendous inefficiencies, duplications, and waste in these programs, one would assume the Deputy Attorney General would be looking for cost savings in the Department. I am disappointed Mr. Cole has failed to recognize that there is a need for a comprehensive review of Justice's grant programs--not only for the sake of saving taxpayer dollars at a time when we face skyrocketing fiscal deficits but also to ensure that grant objectives are being met in the most efficient and effective manner possible.
A third reason. I have concerns about Mr. Cole's abilities based on his performance as an independent consultant tasked with overseeing the insurance firm AIG. By way of background, the Justice Department provided copies of the reports Mr. Cole issued when he was overseeing AIG, but they were labeled ``Committee Confidential.'' As a result of their being labeled ``Committee Confidential,'' I cannot discuss with specificity the contents of those documents publicly. Nevertheless, when taken into context with the public responses provided by Mr. Cole to my questions, a troubling picture develops about Mr. Cole's performance in his role as independent consultant. The responses and reports do not dispel the serious questions raised about Mr. Cole's independence or his completeness. Further, they reveal what appears to be a level of deference to AIG management one would not expect to see from someone tasked with the responsibility of being an ``independent'' monitor.
In order to clarify a number of questions on this matter, Senator Coburn and I sent a followup letter seeking additional answers from Mr. Cole. Mr. Cole's reply clarified that the Department of Justice, the Securities and Exchange Commission, and the New York Attorney General's Office were aware of his practice of seeking input from AIG and making modifications to the reports. He indicated that the changes AIG made were often factual changes, such as AIG employee names, dates of materials, and events. He also indicated that some of the changes requested by AIG were included in a section of the report entitled ``AIG Response.'' However, he added that ``on a few occasions'' AIG would ``suggest a stylistic change of phrasing in the analytical section of the report.'' He stated that while he included the edits made by AIG, he ``did not believe that a detailed presentation of this factual review process was necessary to an understanding of each party's position.''
As a result, the reports did not necessarily show which edits AIG made that were incorporated. Instead, he said those changes were available in working papers that were ``available to the SEC, the DOJ, and the New York Attorney General's Office.'' Unfortunately, he added, ``the agencies--which were aware of this practice--did not request such documents.''
While I appreciate Mr. Cole's responses to these clarifying questions, they raise concerns about how independent his monitoring was, what changes were ultimately requested by AIG, what changes were included, and how much the SEC and the Department of Justice knew about edits AIG was making to the ``independent'' reports.
In addition, I have serious concerns about Mr. Cole's decision to suspend compliance review at AIG's financial products division following the government bailout of AIG. In his testimony, Mr. Cole acknowledged that subsequent to the government bailout of AIG, he scaled back his efforts until the future of AIG as a corporation was determined. After Mr. Cole suspended his monitoring, AIG restructured its compliance office and terminated a number of staff overseeing the company's compliance with SEC regulations. Mr. Cole said after it was determined that AIG's financial products division would not be dissolved, the compliance and monitoring were ``revived and are being reviewed and implemented where applicable.''
Under Mr. Cole's watch, AIG not only got $182 billion of taxpayer dollars for a bailout, but was able to talk the independent consultant--Mr. Cole--out of monitoring what the company was doing.
I am concerned about Mr. Cole's ability to perform the duties required of a Deputy Attorney General. In that role, he would be in a position to potentially influence future compliance monitors appointed under settlements with the Justice Department, the Securities and Exchange Commission, and other corporations that have violated the law. Independent monitors need to be truly independent and, of course, completely transparent. They are selected and appointed to ensure the interests of the American people are protected.
For these reasons, I cannot support the nomination of Mr. Cole to be Deputy Attorney General, and I urge my colleagues to do the same.
Madam President, I suggest the absence of a quorum.
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