Detention of Daniel Chong

Floor Speech

Mr. GRASSLEY. Mr. President, today I come to the floor to speak about the unconscionable way in which the Drug Enforcement Administration treated Daniel Chong, a San Diego college student, back in 2012. Unfortunately, the American people still do not know all the facts. They do not know what lasting changes are being made to make sure something like this never happens again. And they do not know what is being done to hold the DEA agents involved accountable because if people are not held accountable, there are not going to be any changes made. Most of the time, for people to be held accountable, heads have to roll, and there is no evidence that is the case in this particular case. But here is what we do know. It is a story that you might expect to hear set in some Third World country but never in the United States of America. So here it is.

Back in April 2012, Daniel Chong, a college student at the University of California, San Diego, was arrested by law enforcement conducting a sweep for drugs at a college party. He was taken into custody by the DEA and transported to the local DEA field office. He was questioned by the agents who had arrested him, and the agents apparently concluded that there was no basis to charge him with a crime. The young man may well have simply been in the wrong place at the wrong time.

The agents told him he was going to be released. But Daniel Chong was not released. Instead, he was taken back to a holding cell in handcuffs, and he was left there for dead for 5 days--5 days without food, 5 days without water, 5 days without sunlight, 5 days without any basic necessities of life, in a holding cell not much larger than a bathroom stall. He cried out for help. He kicked and banged on the door of the cell but to no avail. He became so desperate and dehydrated that he even drank his own urine in an effort to survive. Incredibly, the one thing Daniel Chong found in his cell that he tried to live on turned out to be some methamphetamine. That is right, he found an illegal drug in the DEA's own holding cell. Apparently, it was never searched before Mr. Chong was tossed inside. It got so bad that this young man tried to kill himself. He tried to carve the words ``sorry Mom'' into his own skin. He intended it to be the last message for anyone to pass on who might one day discover his lifeless body in that DEA holding cell.

After 5 days someone finally responded to Daniel Chong's call for help. He was taken immediately to the hospital. He was found to be suffering from extreme dehydration, hypothermia, kidney failure, and cuts and bruises on his wrists. It took 4 days to nurse him back to health.

This all occurred in April 2012. Soon after I learned of it, I sent a letter to the DEA Administrator demanding to know what could have led to such a calamity. I asked how, in a modern age of computers and surveillance cameras, it was possible that an innocent person could be left for dead in a DEA holding cell. I asked about the DEA policies and procedures in place to help prevent this from ever happening again. And I asked whether those responsible for what happened to Mr. Chong were going to be held accountable.

It took the DEA more than a year to respond to my questions--more than a year. In June 2013 the DEA trotted out the familiar response we so often hear from bureaucrats when they do not want to tell you what really happened. They said at that time the DEA could not comment on many aspects of the matter because the Department of Justice's own inspector general was conducting a review. The DEA assured me that, in their words, an ``interim'' policy had been adopted to make sure no other innocent people would be abandoned in a prison cell and left for dead. But the American people would have to wait for a permanent policy change and a full accounting until after the inspector general finished its investigation.

Just a month later, in July 2013, the DEA announced it would be handing over $4.1 million to Daniel Chong to settle his lawsuit. Mr. President, $4.1 million of taxpayer money--almost $1 million for each day he spent forgotten and also ignored in that dark and drug-infested DEA holding cell.

Now, up to date, finally, just this month and more than 2 years after this debacle, the Department of Justice's inspector general finally issued its report of the investigation. We still do not know the full truth about what happened to Daniel Chong. In many ways the inspector general's report raises more questions than it answers, and what the report does tell us is quite disturbing.

According to the report, Daniel Chong was not just forgotten by the agents who arrested him; he was ignored by other DEA employees who knew he was there but assumed he was somebody else's problem.

And the report suggests the DEA may have tried to cover up the whole event.

According to the report, there were three DEA agents and a supervisor directly responsible for making sure this young man was not abandoned in that holding cell. So it is obvious these four agents failed miserably in their responsibilities. But it gets even worse. According to the report, at least four other agents passed in and out of the holding cell area during the 5 days Daniel Chong was imprisoned. These four agents admitted they had either seen or heard Chong in his cell, but they simply assumed someone else was going to take care of him--in other words, he was somebody else's problem.

Daniel Chong was arrested on a Saturday. One of those agents saw him in the cell on Sunday, and one saw him there on Monday, and another two agents either saw him or heard him on Wednesday, but nothing compelled these law enforcement officers to address his plight because they did not believe anything was amiss.

I hope to all my colleagues that what I just told you is very difficult to believe.

In addition, Daniel Chong's holding cell was near a workspace area used by dozens of DEA personnel. According to the report, anyone in that workspace could have clearly heard banging and yelling from inside the cell.

But not a single one of the 25 DEA employees interviewed by the inspector general who worked this area could recall hearing any unusual noises during the time Daniel Chong was imprisoned there. So this is very difficult to believe. It defies all common sense. It contradicts what Daniel Chong says he did by crying out for help and banging on his holding cell door. It contradicts what his injuries tell us he did. It contradicts what anyone left in a holding cell without the basic necessities of life for days would do.

Why did no one respond to Daniel Chong's cries for help? The report does not even attempt to answer that question.

These eight DEA agents were in some way responsible for this young man's wrongful captivity. The report does not say what happened to these agents. This is where you get into accountability. Who is responsible? Are heads going to roll so this behavior changes? Are these agents still working for the DEA? Have they been disciplined? Are they still arresting other people, tossing them behind bars and leaving them for dead?

The problem does not stop here. According to the report, the DEA may have tried to cover up this entire event. The inspector general learned about what happened to Daniel Chong from an anonymous whistleblower who called one of its field offices.

This is another example of the value of whistleblowers, heroes who stand up for what is right, sometimes at great personal risk. According to the IG's report, the whistleblower indicated that the DEA ``was trying to contain this matter locally.'' That is another way of saying, essentially, that a coverup could be in the works.

Incredibly, as it turns out the DEA office in San Diego assigned the very agents who were responsible for Daniel Chong's captivity to process the holding cell area where Chong was held for days. That is right. The agents who left Chong behind bars for 5 days were assigned to investigate their own egregious mistakes--kind of like the fox guarding the chicken house.

DEA management also decided that it was going to conduct its own internal management review of the incident; that is, it would conduct it is own interviews and investigations before DEA notified anybody else. DEA management justified this decision by telling the inspector general that it assumed the conduct ``which resulted in Chong's detention did not amount to misconduct and was not criminal.'' But, of course, as the inspector general found, it should have been readily apparent to DEA management that this was not true. Of course, DEA management may have calculated that undertaking its own investigation could head off an independent outside review; indeed, perhaps the investigation could even be contained ``locally.'' How many other DEA misdeeds have been similarly contained?

So it is obvious what happened. It is outrageous. How it was handled is outrageous. We need to know more about why the inspector general was not called in immediately--that is, even as DEA policy requires--rather than having people who conducted the wrongdoing investigating, in a sense, themselves. We need to know if indeed this was a deliberate attempt to sweep this dereliction of duty under the rug.

The DEA is entrusted with a lot of responsibility and authority. We ask the DEA to enforce our drug laws. We ask the DEA to protect our communities. The DEA has a very tough job. The Obama administration is not making that job any easier because this administration is undermining the DEA by turning a blind eye to illegal marijuana trafficking. It is trying to release convicted drug dealers from our prisons. It is trying to reduce the criminal penalties and minimum mandatory sentences for drug dealers who are still on the streets peddling death in our communities. So I understand these are very challenging times for the DEA.

When the DEA or any law enforcement agency neglects its responsibilities and then possibly even covers up wrongdoing, then those who are responsible must be held accountable. So I have to ask, if the employees at DEA are not held accountable, what needs to happen in order for action to be taken? Do we need to wait until someone dies?

The DEA's conduct in this case is inexcusable. After 2 years and more than $4 million of taxpayer money, the DEA owes the American people more answers. The American people deserve answers to the questions I posed in my letter to the DEA back in May of 2012, so, not getting a proper answer, I will be writing to the DEA again this week to pose additional questions, including about the possibility of a coverup.

Most importantly, the American people deserve to know that those responsible for the detention and the mistreatment of Daniel Chong will be held accountable for this horrendous event.

CONSTITUTIONAL AMENDMENT

I come to the floor also to discuss a constitutional amendment the Judiciary Committee has just reported to the Senate. The amendment would amend the Bill of Rights for the first time. Let me repeat that. The amendment would amend the Bill of Rights for the first time. I think that is a slippery slope. It would amend one of the most important of those rights--the right of free speech.

The first amendment provides that Congress shall make no laws abridging freedom of speech. The proposed amendment would give Congress and the States the power to abridge free speech. It would allow them to impose reasonable limits--whatever the word ``reasonable'' might mean at a particular time--on contributions and expenditures. By so doing, that has to be putting limits on speech, particularly speech that is very valuable in this country--political speech; in other words, trying to influence the direction of our country through elections. It would allow speech by corporations that would influence the elections to be banned altogether.

This amendment is as dangerous as anything Congress could pass. Were it to be adopted--I believe it will not be adopted--the damage done could be reversed only if two-thirds of both Houses of Congress voted to repeal it through a new constitutional amendment. Then, of course, three-fourths of the States ratify that new amendment.

I would like to start with some basic first principles. The Declaration of Independence states that everyone is endowed by their Creator with unalienable rights that governments are created to protect. Those preexisting rights include the right to liberty.

The Constitution was adopted to secure the blessings of liberty to Americans.

Americans rejected the view that the structural limits on government power contained in the original Constitution would adequately protect the liberties they had fought the Revolution to preserve. So when the people came to the conclusion that the original Constitution would not protect their liberties, the people living in the States at that time insisted on the adoption of this very important Bill of Rights.

The Bill of Rights protects individual rights regardless of whether the government or the majority approve of their use. The first amendment in the Bill of Rights protects freedom of speech. That freedom is basic to self-government. Other parts of the Constitution foster equality or justice or representative government, but it is the Bill of Rights--that Bill of Rights is only about individual freedom. Free speech creates a marketplace of ideas in which citizens can learn, debate, persuade fellow citizens on the issues of the day. At its core it enables the citizenry to be educated, to cast votes, to elect our leaders.

Today freedom of speech is threatened as it has not been in many decades. Too many people will not listen and debate and persuade. Instead, they want to punish, intimidate, and silence those with whom they might disagree.

A corporate executive who opposes same-sex marriage--the same position that President Obama held at the very time--is to be fired. Universities that are supposed to foster academic freedom cancel graduation speeches by speakers some students find offensive. Government officials order other government officials not to deviate from the party line concerning proposed legislation.

This resolution filed by the Judiciary Committee, S.J. Res. 19, is cut from the same cloth. It would amend the Constitution for the first time to diminish an important right of Americans; that is, a right contained in the Bill of Rights. In fact, it would cut back on the most important of these rights--core free speech about who should be elected to govern us.

The proposed constitutional amendment would enable government to limit funds contributed to candidates and funds spent influencing the election. That would give the government the ability to limit speech. The amendment would allow the government to set the limit at low levels. There could be little in the way of contributions or election spending. There could be restrictions on public debate on who should be elected. Incumbents would find that outcome--well, you guessed it--to be very successful because it protects incumbents. They would know that no challengers could run an effective campaign against them.

What precedent would this amendment create? Suppose Congress passed limits on what people could spend on abortions or what doctors or hospitals could spend to perform them? What if Congress limited the amount of money people could spend on guns or limited how much people could spend of their own money on health care?

Under this amendment Congress could do what the Citizens United decision rightfully said it could not--make it a criminal offense for the Sierra Club to run an ad urging the public to defeat a Congressman who favors logging in the national forest or for the National Rifle Association to publish a book seeking public support for a challenger to a Senator who favors a handgun ban or for the ACLU to post on its Web site a plea for voters to support a Presidential candidate because of his stance on free speech. That should, for everybody, be a frightening prospect.

Under this amendment, Congress and the States could limit campaign contributions and expenditures without even complying with the existing constitutional provisions. Congress could pass a law limiting expenditures by Democrats, but not by Republicans--by opponents of ObamaCare, but not by its supporters.

What does the amendment mean when it says that Congress can limit funds spent to influence elections? If an elected official says he or she plans to run again, long before any election, Congress, under this amendment, could criminalize criticism of that official as spending to influence the elections.

A Senator on the Senate floor appearing on C-SPAN, free of charge could, with immunity, defame a private citizen. The Member could say that the citizen was buying the elections. If the citizen spent what Congress has said was too much money to rebut the charge, he could go to jail. We would be back to the days when criticism of elected officials was a criminal offense during the Alien and Sedition Acts. Yet its supporters say that this amendment is necessary to preserve democracy.

The only existing right that the amendment says it will not harm is freedom of the press. So Congress and the States could limit the speech of anyone except corporations that control the media. That would produce an Orwellian world in which every speaker is equal but some speakers are more equal than others.

Freedom in the press has never been understood to give the media special constitutional rights denied to others. Even though the amendment by its terms would not affect freedom of the press, I was heartened to read that the largest newspaper in my State, the Des Moines Register, editorialized against this amendment amending the Bill of Rights. They cited testimony from our hearing, and they recognize the threat that the proposed amendment poses to freedom.

But in light of recent Supreme Court decisions, an amendment soon may not be needed at all. Four Justices right now would allow core political speech to be restricted. Were a fifth Justice with this view to be appointed, there would be no need to amend the Constitution to cut back on the freedom.

Justice Breyer's dissent for these four Justices in the McCutcheon decision does not view freedom of speech as an end in itself the same way that our Founding Fathers did. He thinks free political speech is about advancing ``the public's interest in preserving a democratic order in which collective speech matters.''

To be sure, individual rights often advance socially desired goals, but our constitutional rights do not depend on whether unelected judges believe they advance democracy as they conceive it. Our constitutional rights are individual, not collective, as Justice Breyer says. Never in 225 years has any Supreme Court opinion described our rights as collective. Our rights come from God and not from the government or the public. At least that is what the writers of the Declaration of Independence said.

Consider the history of the past 100 years. Freedom has flourished where rights belong to individuals that governments were bound to respect. Where rights are collective and existed only at the whim of a government that determines when they serve socially desirable purposes, the results have been literally horrific: no freedom, no democracy.

We should not move even 1 inch in that direction that the liberal Justices did and that simultaneously this amendment would take us. The stakes could not be higher for all Americans who value their rights and freedoms. Speech concerning who the people's elected representative should be, speech setting the agenda for public discourse, speech designed to open and change the minds of our fellow citizens, speech criticizing politicians, and speech challenging government and its policies are all vital rights. This amendment puts all of them in jeopardy upon the penalty of imprisonment. It would make America no longer America.

Contrary to the arguments of its supporters, the amendment would not advance self-government against corruption and the drowning out of voices of ordinary citizens. No, just the opposite. It would harm the rights of ordinary citizens--individually, as well as in free associations--to advance their political views and to elect candidates who support their views.

By limiting campaign speech, it would limit the information that voters receive in deciding how to vote. It would limit the amount that people can spend on advancing what they consider to be the best political ideas. Its restrictions on speech apply to individuals. Politicians could apply the same rules to individuals who govern corporations. Perhaps individuals cannot be totally prohibited from speaking, but the word ``reasonable'' is in the amendment but that word limits can mean anything. Incumbents likely would set a low limit on how much an individual can spend to criticize them; that is, incumbents protecting their office. Then the individual would have to risk criminal prosecution in deciding whether to speak, hoping that a court would later find that the limit he or she exceeded was unreasonable.

This would create not a chilling effect on speech, but, in fact, a very freezing effect.

This does not further democratic self-government. The amendment would apply to some campaign speech that cannot give rise to corruption.

For instance, under current law, an individual could spend any amount of his or her own money to run for office. An individual could not corrupt himself with his own money and could not be bought by others if he or she did not rely on outside money, but the amendment would allow Congress and the States to strictly limit what even an individual could contribute to or spend on his or her own campaign. That would make beating the incumbent, who would benefit from the new powers to restrict speech, much more difficult.

In practice, individuals seeking to elect candidates in the democratic process must exercise their First Amendment freedom of association to work together with others. This amendment could prohibit that altogether.

It would permit Congress and the States to prohibit ``corporations or artificial entities ..... from spending money to influence elections.'' Now, that even means labor unions. That means nonprofit corporations such as the NAACP Legal Defense and Educational Fund. That means political parties.

The amendment will allow Congress to prohibit political parties from spending money to influence elections. If they can't spend money on elections, then they would be rendered as a mere social club.

The prohibition on political spending by for-profit corporations also does not advance democracy.

Were this amendment to take effect, a company that wanted to advertise beer or deodorant would be given more constitutional protection than a corporation of any kind that wanted to influence an election.

The philosophy of the amendment is very elitist. It says the ordinary citizen cannot be trusted to listen to political arguments and evaluate which ones are persuasive.

Instead, incumbent politicians interested in securing their own reelections are trusted to be high-minded. Surely, they would not use this new power to develop rules that could silence not only their actual opposing candidates, but associations of ordinary citizens who have the nerve to want to vote them out of office.

As First Amendment luminary Floyd Abrams told our committee: ``[P]ermitting unlimited expenditures from virtually all parties leads to more speech from more candidates for longer time periods, and ultimately more competitive elections.''

Isn't that the goal that we should seek through the political process? Having parties led to more speech from more candidates for longer periods of time and ultimately more competitive elections.

Incumbents are unlikely to use this new power to welcome that competition.

In fact, the committee report indicates that State and Federal legislators are not the only people who would have the ability to limit campaign speech under this amendment.

It says that the States and the Federal Government can promulgate regulations to enforce the amendment. So you have unelected State and Federal bureaucrats, who do not answer to anyone, being empowered to regulate what is now the freedom of speech of individuals and entities that for 230 years has been protected by the Bill of Rights. That all makes a mockery of the idea that this proposed amendment would advance democracy and that argument is used by its proponents.

Another argument for the amendment--some voices should not drown out others--also runs counter to free speech. It also is elitist. It assumes that voters will be manipulated into voting against their interests because large sums will produce so much speech as to drown out others and blind them to the voters' true interests.

Tell that to the voters in Virginia's Seventh Congressional District. That incumbent Congressman outspent his opponent 26 to 1. Newspaper reports state that large sums were spent on independent expenditures on the incumbent's behalf, many by corporations. No independent expenditures were made for their opponent, but yet his opponent won.

That doesn't seem to be drowning out people making their own decisions in the ballot box, and it is not some undue influence that proponents of this amendment want you to believe that this constitutional amendment can do away with undue influence. Just think, 26 to 1, trying to convince people to vote for an incumbent Congressman, and he loses.

Let me say this. The exact amount of money that the winner of that primary spent was just over $200,000 to win 55 percent of that vote.

Since a limit that allowed a challenger to win would presumably be reasonable under the amendment, Congress or the States could limit spending on House primaries to as little as $200,000, all by the candidate with no obviously unnecessary outside spending allowed.

The second set of unpersuasive arguments concerns the Supreme Court decision Citizens United. That case has been mischaracterized as activist.

Again, I wish to say what Mr. Abrams testified before the committee. He said that case continues a view of free speech rights by unions and corporations that was expressed by President Truman and by liberal Justices in the 1950s.

What the Citizens United overruled was the departure from precedent. And Citizens United did not give rise to unfettered campaign spending.

The Supreme Court case in 1976, in Buckley v. Valeo, ruled that independent expenditures could not be limited. That decision was not the work of a supposed conservative judicial activist. Wealthy individuals have been able to spend unlimited amounts since then. And corporations and others have been able to make unlimited donations to 501(c)(4) corporations since then as well.

As Mr. Abrams wrote to the Judiciary Committee in questions for the record:

What Citizens United did do, however, is permit corporations to contribute to PACs that are required to disclose all donors and engage only in independent expenditures.

If anything, Citizens United is a pro-disclosure ruling which brought corporate money further into the light.

And it is this amendment, not Citizens United, that fails to respect precedent. It does not simply overturn one case. As Mr. Abrams responded, it overturns 12 cases, some of which date back almost 40 years. As the amendment has been redrafted, it may be 11 1/2 now, depending upon what the word ``reasonable'' means.

Justice Stevens, whom the committee Democrats relied on at length in support of the amendment, voted with the majority in three of the cases the amendment would overturn. Some members of the committee may not like the long-established broad protections for free speech that the Supreme Court has reaffirmed, but that does not mean there are five activists on the Supreme Court. The Court ruled unanimously in more cases this year than it has in 60 or 75 years, depending on whose figures you use. Its unanimity was frequently demonstrated by rejecting arguments of the Obama administration.

I have made clear that this amendment abridges fundamental freedoms that are the birthright of Americans. The arguments made to support it are unconvincing. The amendment will weaken, not strengthen, democracy. It will not reduce corruption, but will open the door for elected officials to bend democracy's rules to benefit themselves.

The fact that the committee reported this amendment is a very great testimony to the wisdom of our Founding Fathers in insisting on and adopting the Bill of Rights in the first place. As Justice Jackson famously wrote:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.

One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

We must preserve our Bill of Rights, including our rights to free speech. We must not allow officials to diminish and ration any one of the Bill of Rights, but especially the first one, which is so important. We must not let the proposal become the supreme law of the land.

I yield the floor.

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