Congressional Record United States Th of America PROCEEDINGS and DEBATES of the 111 CONGRESS, FIRST SESSION

E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 111 CONGRESS, FIRST SESSION

Vol. 155 WASHINGTON, FRIDAY, JANUARY 30, 2009 No. 19 House of Representatives The House was not in session today. Its next meeting will be held on Monday, February 2, 2009, at 2 p.m. Senate FRIDAY, JANUARY 30, 2009

The Senate met at 9:31 a.m. and was to the Senate from the President pro RESERVATION OF LEADER TIME called to order by the Honorable MARK tempore (Mr. BYRD). The ACTING PRESIDENT pro tem- R. WARNER, a Senator from the Com- The assistant legislative clerk read pore. Under the previous order, the monwealth of Virginia. the following letter: leadership time is reserved. U.S. SENATE, PRAYER PRESIDENT PRO TEMPORE, f Washington, DC, January 30, 2009. The Chaplain, Dr. Barry C. Black, of- MORNING BUSINESS fered the following prayer: To the Senate: Under the provisions of rule I, paragraph 3, The ACTING PRESIDENT pro tem- Let us pray. of the Standing Rules of the Senate, I hereby Eternal Spirit, our shelter in the pore. Under the previous order, the appoint the Honorable MARK R. WARNER, a Senate will proceed to a period for the time of storm, our rock in a weary Senator from the Commonwealth of Vir- land, Lord, we live in challenging ginia, to perform the duties of the Chair. transaction of morning business, with times that require more than human ROBERT C. BYRD, Senators permitted to speak for up to solutions for our problems. In the President pro tempore. 10 minutes each. midst of these days, help our law- Mr. WARNER thereupon assumed the Mr. REID. I suggest the absence of a makers to find in You a sure place to chair as Acting President pro tempore. quorum. stand and a strong support they can ab- The ACTING PRESIDENT pro tem- solutely trust. Lord, give them such f pore. The clerk will call the roll. faith in You that they will seek and The assistant legislative clerk pro- follow Your guidance, living lives that RECOGNITION OF THE MAJORITY ceeded to call the roll. honor Your Name. Rule in their hearts LEADER Mr. CORNYN. Mr. President, I ask as they deliberate so that Your higher The ACTING PRESIDENT pro tem- unanimous consent that the order for wisdom will prevail. Help them to re- pore. The majority leader is recog- the quorum call be rescinded. member that they must give an ac- nized. The ACTING PRESIDENT pro tem- count to You for how responsible they pore. Without objection, it is so or- are in carrying out their duties. f dered. We pray in Your strong Name. Amen. Mr. CORNYN. Mr. President, I also SCHEDULE ask unanimous consent to speak for as f much time as I may use in morning Mr. REID. Mr. President, we are business. PLEDGE OF ALLEGIANCE going to be in a period for the trans- The ACTING PRESIDENT pro tem- The Honorable MARK R. WARNER led action of morning business today. Sen- pore. Without objection, it is so or- the Pledge of Allegiance, as follows: ators will be allowed to speak for up to dered. 10 minutes each. There will be no roll- I pledge allegiance to the Flag of the The Senator from Texas is recog- United States of America, and to the Repub- call votes today, as we announced last nized. lic for which it stands, one nation under God, night. We will proceed to the consider- indivisible, with liberty and justice for all. ation of the American Recovery and In- f f vestment Act of 2009 on Monday. Under a previous agreement, the Senate will NOMINATION OF ERIC HOLDER APPOINTMENT OF ACTING debate and vote on the Holder nomina- Mr. CORNYN. Mr. President, on Mon- PRESIDENT PRO TEMPORE tion to be Attorney General of the day, the Senate will take up the nomi- The PRESIDING OFFICER. The United States. That will occur at 6:15 nation of Eric Holder to be the next At- clerk will please read a communication p.m. on Monday. torney General of the United States. I

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

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Likewise, Osama bin Laden, voted that nomination out of the com- First, I would ask my colleagues to responsible for the deaths of thousands mittee, I was a ‘‘no’’ vote. consider Mr. Holder’s role in the FALN of innocent American citizens, would I wish to say that originally I ap- and Los Macheteros commutations. In not be linked to crime under the stand- proached this nomination with an open August 1999, President Clinton offered ard Mr. Holder posits. mind and a determination to ask—in- clemency to 16 members of two Puerto There is ample evidence that at least deed to demand—answers to legitimate Rican separatist terrorist organiza- some of the men for whom Eric Holder questions. I think that is the responsi- tions, FALN and Los Macheteros. Dep- recommended clemency were, in fact, bility of each Senator under the Con- uty Attorney General Eric Holder murderers. These commutations were, stitution in performing our duties of made the recommendation that he at the time, widely believed to have advice and consent. I also think it is should do so. The FALN was a clandes- some political motivation. Indeed, the important for me to explain why, even tine terrorist group devoted to bring- Clinton White House discussed how though I approached that nomination ing about the independence of Puerto these clemencies would affect then- with an open mind and a predisposition Rico through violent means. Its mem- Vice President Gore’s political stand- to vote for Mr. Holder’s nomination, I bers waged open war on the United ing within the Puerto Rican commu- ultimately concluded, as a result of States, with more than 150 bombings, nity. For this reason, I believe a full some of the evidence, which I will lay arsons, kidnappings, prison escapes, accounting of whom Mr. Holder met out, I could not do so in good con- threats and intimidation, which re- with, what they discussed, and what science. sulted in the deaths of at least six peo- went into his decision to recommend Mr. Holder, of course, served as Dep- ple and injuries to many more between these commutations is in order. uty Attorney General during the Clin- 1974 and 1983. But there is another equally impor- ton administration, and if there is any The most gruesome attack was in tant reason that these questions must public service that is more illustrative 1975 in lower Manhattan. Timed to ex- be answered. The victims of the FALN of how someone will actually perform plode during the lunch hour, the bomb and the Los Macheteros deserve an- as Attorney General, I think it would decapitated 1 of the 4 people killed and swers. I would encourage all my col- be in performing as Deputy Attorney injured another 60. In another attack leagues, before voting, to review the General. The Deputy Attorney General in Puerto Rico, Los Macheteros opened testimony of Joseph Connor, whose fa- is the one job on Earth most similar to fire on a bus of U.S. sailors. Two Amer- ther was killed in the bombing in lower the job for which Mr. Holder will be ican sailors were killed and nine were Manhattan in 1975. Mr. Connor testified confirmed on Monday. It is rare to wounded. Fortunately, much of the that Mr. Holder did not consult with have such a clear picture of the job a leadership and membership of these him, did not inform him or his family nominee will do if confirmed. Thus, I terrorist groups was captured and or other victims before recommending reviewed Mr. Holder’s record with brought to justice in the late 1970s and that the President set FALN terrorists great care, as you might expect, and early 1980s. By the late 1980s, the worst free. also with great interest. of the FALN’s reign of terror was over. I cannot vote for Mr. Holder until I Unfortunately, two of Mr. Holder’s In the early 1990s, sympathetic activ- can explain my vote to Joseph Connor. actions as Deputy Attorney General: ists petitioned for clemency on behalf Because Mr. Holder has failed to an- the recommendation that President of these terrorists, and it was an easy swer my questions about the FALN Clinton commute the sentences of 16 call for the pardon attorney. The par- commutations, I do not have an expla- Puerto Rican separatist terrorists and don attorney is the attorney at the De- nation I can give to Mr. Connor. the recommendation that President partment of Justice who reviews clem- One of the reasons Mr. Holder has re- Clinton pardon the billionaire fugitive ency requests and makes recommenda- fused to answer some questions is, it Marc Rich, raised serious questions tions. They make sure the record is appears he is invoking executive privi- about Mr. Holder’s judgment and inde- thoroughly reviewed and, as I said, lege. But it is very odd because this ap- pendence from the wishes of his polit- then make recommendations. The fact parent assertion of executive privilege ical sponsors—two key qualities I is these unrepentant terrorists who comes despite the fact that President would hope the Senate would want for were given clemency by the Clinton ad- Clinton waived executive privilege for any Attorney General, independence, ministration never even petitioned for all testimony concerning these adherence and fidelity only to the rule clemency. They never even asked for commutations. That is in the record of of law—and good judgment. it. the hearing before the Judiciary Com- Two other aspects of Mr. Holder’s Pardon attorney Margaret Love, who mittee. I think it is unfortunate that record also raised concerns for me. Mr. worked for then-Deputy Attorney Gen- the current administration’s first ap- Holder’s record demonstrates a failure eral Jamie Gorelick, recommended parent assertion of executive privilege to understand the profound threat against clemency for any of these pris- seems to come for no purpose other posed by radical Islamic terrorism; oners, and a recommendation was than to protect Mr. Holder’s record and, second, Mr. Holder has often ap- transmitted to the President. Shortly from scrutiny. peared to be hostile to the second thereafter, when Eric Holder became As I said, in 2001, President Clinton amendment, to the constitutional right Deputy Attorney General, he rescinded waived executive privilege with regard to keep and bear arms. that recommendation opposing clem- to the commutations and pardons he As I said, in the Judiciary Com- ency and recommended that President granted. In a letter to the House of mittee, Mr. Holder failed to answer my Clinton grant clemency to these unre- Representatives, President Clinton’s questions, regrettably, and the ques- pentant terrorists. lawyer explicitly stated President Clin- tions of my colleagues in a way that al- Strangely, Mr. Holder still stands be- ton ‘‘will interpose no executive privi- leviated these concerns. As I will ex- hind this recommendation, saying he lege objections to the testimony of his plain, I indeed found Mr. Holder’s an- considered it reasonable. But the rea- former staff concerning these pardons, swers to be nothing short of evasive in sons he gives are not persuasive. Mr. or to other pardons and commutations some key respects. Because I have Holder claims these men were not he granted.’’ doubts about Mr. Holder’s judgment linked to violence. That is false. These Nonetheless, Mr. Holder continues to and independence, I am opposing this men were active members of a terrorist assert he is not authorized to testify nomination, and the four reasons, as I organization that had committed doz- about the so-called options memo- tried earlier to summarize but which I ens of violent crimes, including, as I randum, which is part of the record un- will repeat are Mr. Holder’s role in the mentioned earlier, bombings, murder, derlying these commutations. Instead FALN and Los Macheteros and arson. It is true the particular of forthright answers about Mr. Hold- commutations, his role in the Marc crimes for which these individuals were er’s decision to recommend these

VerDate Nov 24 2008 00:58 Jan 31, 2009 Jkt 079060 PO 00000 Frm 00002 Fmt 0637 Sfmt 0634 E:\CR\FM\G30JA6.003 S30JAPT1 rfrederick on PROD1PC67 with SENATE January 30, 2009 CONGRESSIONAL RECORD — SENATE S1105 commutations or present the options Moreover, it is hard to imagine any forts included extradition requests and memo to then-President Clinton, he significant executive branch interest in attempts by U.S. marshals to arrest has repeatedly refused to answer ques- keeping this information secret. These him abroad. Rich refused to return to tions submitted by Judiciary Com- documents are a decade old and con- the United States, despite an offer by mittee members, including me. cern crimes committed about 30 years prosecutors to drop the racketeering For example, I asked Mr. Holder ago. President Clinton, of course, is no charges in exchange for his return. whether he was aware at the time he longer in office, and he has waived the In an effort to avoid his extradition, made his commutation recommenda- privilege. The context of these docu- though, Mr. Rich went so far as to re- tion of the leadership positions of three ments has been alluded to in U.S. nounce his U.S. citizenship, and he of these terrorists and their alleged in- major newspapers and even by Mr. tried to become a citizen of Bolivia. It volvement of another murder of a U.S. Holder himself. So it seems to me there is hard to imagine a more inappro- Navy sailor—more than one. Mr. Hold- is no further executive branch interest priate candidate for a pardon than a fu- er responded that this information in continuing to hide these documents, gitive from justice accused of trading ‘‘was included in [their] presentence re- only a desire to shield Mr. Holder from with the enemy. Mr. Rich’s own lawyer ports which in the ordinary course hard questions. told him he ‘‘spit on the American would be requested and reviewed by the In short, Mr. Holder’s responses to flag’’ by avoiding the jurisdiction of Office of Pardon Attorney as one of the questions regarding these commuta- U.S. courts. first investigative steps.’’ tions has been evasive. The Senate and According to those involved in the This answer, I have to say, is a very the American people deserve forthright pardon process, including President lawyerly answer, but it is nonrespon- answers to questions that pertain to Clinton and Marc Rich’s lawyer, Eric sive to my question. It avoids the ques- Mr. Holder’s judgment, his independ- Holder was more responsible for this tion of whether he was aware of these ence, his seriousness of mind when it controversial decision than any other matters when he recommended com- comes to the threat of Islamic extre- member of the Clinton administration mutation. In fact, Chairman LEAHY and mism, and his qualifications to be At- with the exception of the President Ranking Member SPECTER sent a letter torney General. to the Department of Justice citing I also believe the families of the vic- himself. President Clinton’s waiver of executive tims of the terrorist acts by the FALN In fact, on the last evening of the privilege and requesting the relevant and Los Macheteros terrorists deserve Clinton administration, White House documents regarding the clemency de- a full accounting for the release of ter- counsel called Mr. Holder to solicit his cision. This request, inexplicably, has rorists who were partly to blame for views on the Rich pardon application. been denied. their loved one’s deaths. Instead of pro- As Deputy Attorney General, Holder Because President Clinton has viding a forthright accounting, Mr. was effectively speaking for the entire waived this privilege, this assertion of Holder has simply dodged the question, Department of Justice during this cru- privilege is apparently now being made hidden behind an apparent claim of ex- cial phone call. by the present administration of Presi- ecutive privilege, and refused to co- Disregarding the strongly held views dent Obama. Of course, executive privi- operate with the Judiciary Committee of hundreds of Department of Justice lege only belongs to the principal, to in getting to the bottom of some of prosecutors and FBI agents who the client—in this case the Executive— these matters. worked nearly two decades to bring so it has to be either President Clinton The next concern I have has to do Marc Rich to justice, Mr. Holder told or President Obama, and clearly Presi- with the Rich pardon I alluded to at Nolan he was ‘‘neutral, leaning to fa- dent Clinton has waived it. the very beginning. Less than 2 years vorable.’’ The Justice Department has appar- after the controversy surrounding the What is crucial to understand is that ently advanced the argument that the FALN commutations, on the very last Mr. Holder was not just speaking for Clinton waiver applied only to testi- night of the Clinton administration, himself but the entire Department of mony and not to documents, but Mr. Mr. Holder made a very similar error of Justice. But with this recommendation Holder’s testimony about the options judgment when he recommended that from the Deputy Attorney General, paper is clearly testimony and not a President Clinton pardon the notorious President Clinton granted the Rich document. Thus, his assertion of privi- fugitive by the name of Marc Rich. At pardon, one of his last and most des- lege is indeed broader than the most the time, Mr. Rich was No. 6 on the picable actions. restrictive reading of the Clinton waiv- FBI’s Ten Most Wanted List. Even after having ample opportunity er. So who is denying the Holder au- In 1983, then-U.S. attorney Rudy to explain himself, it is unclear what thorization to testify about the options Giuliani in the Southern District of Mr. Holder’s rationale was for recom- paper? Apparently, I conclude, it could New York, obtained an indictment of mending this despicable pardon, as I only be President Obama. international commodities trader Marc said, which former FBI Director Louis Assertions of executive privilege, as Rich and his business partner, Pincus Freeh called a ‘‘corrupt act’’ on the we know, raise questions about the bal- Green. The indictment charged 65 part of President Clinton. ance of power between the executive counts of tax evasion, racketeering, branch and the legislative branch. The and trading with the enemy. Mr. Holder has admitted he made a Executive’s interest in secrecy and Specific charges include illegally mistake, which is commendable. But confidential communications, and trading with the Ayatollah Khomeini’s never in a full day of hearings and in Congress’s right to information, par- Iranian terrorist regime in violation of answers to several written questions ticularly in the context of a confirma- U.S. energy laws and a trade embargo did Mr. Holder offer a persuasive rea- tion hearing when performing our con- against Iran. son for supporting this pardon—other stitutional duty of advice and consent, Indeed, Mr. Rich made a fortune than, apparently, caving in to pressure are in tension and, in this case, con- trading with the Ayatollah’s regime at from the Clinton White House. Mr. flict. It is up to the branches to nego- the same time that 52 American dip- Holder defends himself by claiming he tiate and work together to take both lomats were still being held hostage in was naive; and, again, we have all made interests into account and to make the U.S. Embassy in Iran. Mr. Rich mistakes. I grant that. He now admits public relevant information that bears profited by trading with Cuba, Libya, the Rich pardon was a mistake and on the qualifications and experience of and South Africa during apartheid—all promises he will never make a similar members of the President’s Cabinet—in despite U.S. embargoes. Rather than mistake again. In fact, he takes the po- this instance, Mr. Holder. I believe face these charges head on, Mr. Rich sition he will be a better Attorney Gen- President Obama owes the American simply fled to Switzerland where he re- eral because of learning from this mis- people—consistent with his ideals on mained a fugitive for 17 years. Federal take. open government, which I enthusiasti- law enforcement, with help from the But this pledge is difficult to square cally support—to make his assertion of CIA, the NSA, and other agencies, ex- with the fact that Mr. Holder had es- privilege plainly and in the light of pended substantial resources in an ef- sentially made the same error in judg- day. fort to apprehend Mr. Rich. These ef- ment less than 2 years before with the

VerDate Nov 24 2008 00:58 Jan 31, 2009 Jkt 079060 PO 00000 Frm 00003 Fmt 0637 Sfmt 0634 E:\CR\FM\G30JA6.004 S30JAPT1 rfrederick on PROD1PC67 with SENATE S1106 CONGRESSIONAL RECORD — SENATE January 30, 2009 FALN commutation. I am also con- I find it especially troubling that Mr. Those were essentially the same ar- cerned that Mr. Holder’s testimony re- Holder’s legal views on national secu- guments the Bush administration made garding key conversations and meet- rity have seemed to shift, depending with regard to Guantanamo Bay with ings on the Rich pardon seem to con- upon the political mood of the day and regard to holding enemy combatants tradict the recollections of members of the audience to whom he is speaking. who wear no uniform, who do not obey the Marc Rich legal and lobbying team. Shortly after the terrorist attacks of the laws of war, and are not citizens of In the fall of 2000, there was an e- 9/11, Mr. Holder voiced support for the a state, a nation state, but, in fact, are mail from former White House Counsel Bush administration’s interpretation a terrorist organization bent on killing Jack Quinn—who was representing of the status of terrorist detainees. Mr. innocent civilians here and abroad in Rich in his quest for a pardon—to the Holder said, in January 2002, that al- an effort to pursue their ideology. rest of the Rich legal team indicating Qaida terrorists: Since then, however, these argu- Mr. Rich told Mr. Quinn to ‘‘go . . . are not, in fact, people entitled to the ments have been heavily criticized, as straight to the White House.’’ protection of the Geneva Convention. They we know, by human rights activists This suggests that Holder was telling are not prisoners of war. and leading Democrats and, Quinn to bypass the typical pardon He went on to endorse indefinite de- inexplicably to me, Mr. Holder himself. process through the Department of tention of terrorist prisoners at Guan- He said in June of 2008: Justice, where opponents of the Rich tanamo Bay and argued that such pris- We must close our detention center at pardon were legion. Mr. Holder dis- oners should not be afforded Geneva Guantanamo Bay. putes this interpretation, arguing that Conventions protections so that they He said that in a speech to the Amer- an application sent to the White House could, in fact, be interrogated to pro- ican Constitution Society. He said: would be forwarded to the Department vide actionable intelligence. A great nation should not detain people, of Justice in any case. Whether this is He did insist, as did the Bush admin- military or civilian, in dark places beyond true, it is indisputable that the pros- istration at the time, that these de- the reach of law. Guantanamo Bay is an ecutors in the Southern District of tainees should be treated humanely, international embarrassment. New York who indicted Marc Rich for though. But more recently, as the po- Holder added he never thought he the crimes I mentioned earlier—they litical winds have shifted, Mr. Holder would see the day when the ‘‘Supreme were never asked about their views on has chastised the Bush administration Court would have to order the Presi- the Rich pardon, as they would have for policies he now seems to believe dent of the United States to treat de- been if the normal pardon process had defy the law. tainees in accordance with the Geneva been followed at the Department of There is a disturbing Jekyll-and- Convention.’’ Justice. Hyde quality to Mr. Holder’s legal pro- These sharply contrasting legal con- If Mr. Holder advised the Rich pardon nouncements concerning our counter- clusions were made, again inexplicably team on strategic matters, it would be terrorism policies. I wish to quote from by one and the same person, Eric Hold- a serious violation of his duties as the an Associated Press article entitled er, the nominee for the highest law en- second highest law enforcement officer ‘‘Obama AG pick defended Guantanamo forcement officer in the United States. in the land. Such aid would be particu- policy,’’ dated November 22, 2008. I ask One can only wonder what he truly be- larly disappointing because a House unanimous consent that this article be lieves. committee had specifically rep- printed in the RECORD following my re- In a 2008 speech to the liberal Amer- rimanded Mr. Holder for improperly marks. ican Constitution Society, he attacked aiding and facilitating the clemency The ACTING PRESIDENT pro tem- many of the same legal positions he application of the FALN terrorists 2 pore. Without objection, it is so or- once held as ‘‘making a mockery of the years earlier. It is not disputed, dered. rule of law.’’ though, that the Rich pardon applica- (See exhibit 1.) In that same speech, Holder called tion was fast-tracked and sheltered Mr. CORNYN. Asked whether ter- for a ‘‘reckoning’’ over the Bush ad- from its many opponents. rorism suspects could be held forever, ministration’s ‘‘unlawful practices in It is clear to me that Mr. Holder Holder responded: the war on terror.’’ played a role in clearing the way for It seems to me that you can think of these He also accused the Bush administra- this pardon and, at a minimum, he people as combatants and we are in the mid- tion of ‘‘act[ing] in direct defiance of knew it had not been appropriately dle of a war. Federal law’’ and railed against coun- handled through the Department of Holder said in a CNN interview in terterrorism policies that he claimed Justice pardon process. January 2002: ‘‘violate international law and the Nevertheless, he declared himself as United States Constitution.’’ ‘‘neutral, leaning favorable’’ when the And it seems to me that you could prob- In this way, Mr. Holder appears to ably say, looking at precedent, that you are White House asked him about his opin- going to detain these people until the war is have already publicly prejudged a po- ion. over, if that is ultimately what we wanted to tential prosecutorial question that In summary, Mr. Holder appears once do. may come before him as Attorney Gen- again to simply have given President Just weeks later, Holder told CNN he eral, without knowing all the facts. Clinton the answer he wanted. The did not believe al-Qaida suspects quali- Now, it is one thing to change your Rich pardon recommendation is the fied as prisoners of war under the Gene- mind, but it is quite different to most recent major action by Mr. Hold- va Conventions. change your mind and then attack the er as a public official. I believe the evi- very same position you once held as One of the things that we clearly want to dence casts doubt on his independence do with these prisoners is to have an ability one that could only be held in bad and his judgment once again. to interrogate them and find out what their faith, describing it as ‘‘making a mock- My greatest concerns, however, are future plans might be, where other cells are ery of the rule of law.’’ that Mr. Holder fails to fully under- located. Under the Geneva Convention, you I can only conclude that as an act of stand the unique challenges and are really limited to the amount of informa- pure cynicism, somebody who tells threats posed to our country by radical tion that you can elicit from people. you, particularly a lawyer who takes a Islamic terrorism. I want to explain Holder said it was important to treat legal position he once embraced, as why I say that. I agree with Mr. Holder detainees humanely, but he said they: now only being able to be held in bad when he says the most important duty . . . are not, in fact, people entitled to the faith, is a person who has made a bad- of the Attorney General is to protect protection of the Geneva Convention. They faith legal argument at least once. America from another terrorist attack. are not prisoners of war. The recent terrorist attacks in India, But his public statements regarding He also downplayed criticism that in Mumbai, have reminded Americans the war on terror too often betray a prisoners were being mistreated. of the possibility of further attacks on willingness to advance ideological Those in Europe and other places who are U.S. soil or literally anywhere around rhetoric without fully appreciating the concerned about the treatment of al-Qaida the world. On November 26, last year, sensitivity and the complexity of this members should come to Camp X-ray and see Mumbai, as we know, was ravaged by a issue. how people are, in fact, being treated. gang of terrorists. One of the attackers

VerDate Nov 24 2008 00:58 Jan 31, 2009 Jkt 079060 PO 00000 Frm 00004 Fmt 0637 Sfmt 0634 E:\CR\FM\G30JA6.005 S30JAPT1 rfrederick on PROD1PC67 with SENATE January 30, 2009 CONGRESSIONAL RECORD — SENATE S1107 was captured while the rest were ions with the political winds, he will do when he is so clearly opposed to the de- killed. his very best to uphold the rule of law cision in the Heller case. I believe his More than 170 individuals died as a and the Constitution of the United hostility to the second amendment result of bombings and gunfire, includ- States while protecting the American could lead the Department of Justice ing 6 Americans. If a U.S. city was tar- people by making sure we are protected to take opposing positions to narrow geted in the same way Mumbai was, or within the limits of our law from fu- that Supreme Court decision, particu- worse, biological, chemical, other even ture attacks. larly in court. nuclear weapons being used, it is crit- The final issue I wish to mention is Holder’s Heller brief was directly at ical that we be able to obtain the intel- my concern about Mr. Holder’s adher- odds with the Court’s opinion, as we ligence from captured terrorists in ence to the Supreme Court ruling in have seen. Can we expect him to vigor- order to assess whether any other im- the District of Columbia v. Heller, ously enforce and protect the constitu- minent attacks are in the works. which interpreted an individual’s right tional right to bear arms, a right with If we captured the terrorist in an on- to keep and bear arms. which he personally and strenuously going attack on an American city, it is That case reversed the District of Co- disagrees? critically important that we not treat lumbia’s position that said individuals Let me say, in conclusion, the Sen- him as an ordinary criminal, with all could not own firearms in their homes ate’s advice and consent function re- the rights conferred by the Constitu- to protect their family and their pos- quires us to carefully review a nomi- tion on an American citizen. That, I sessions. I believe this is an important nee’s career, to ask hard questions, and believe, is one of the most important victory for the second amendment that to insist on satisfactory answers. I lessons we must recall and never forget must be protected and preserved. take this duty seriously, as I know all from the tragedy of 9/11. To do so would As the Nation’s chief law enforce- my colleagues do. With this nominee, I effectively shut down the intelligence- ment officer, the Attorney General conclude that there are simply too gathering process and risk American steers Federal gun law policy. The next many questions to which I have not yet lives. Attorney General’s views will shape heard a satisfactory answer. When this sort of unpredictable legal not only law enforcement and prosecu- Why would he recommend clemency challenge arises in the war on ter- tion priorities with regard to these for unrepentant terrorists? rorism, I wish to know whether the issues but also the positions the De- Why would he recommend a pardon Eric Holder of 2002 or the Eric Holder partment of Justice takes in court. The for a fugitive who made billions trad- of 2008 will be calling the shots. I was views of the Justice Department will ing with America’s enemies? Did Mr. not encouraged by Mr. Holder’s refusal always be given considerable weight Holder know one of the men whose to say he would authorize aggressive during the early stages of the law’s de- clemency he recommended was linked interrogation against terrorists, even if velopment post-Heller. to the murder of a U.S. sailor and, if he knew that to do so would prevent a It is crucial the next Attorney Gen- so, did he communicate this to the major attack on an American city. eral fully appreciate that an individ- White House? Why did Mr. Holder con- I also fear his recommendation for ual’s right to keep and bear arms is a sult with Mr. Rich’s prosecutors before and continued endorsement of the fundamental freedom protected by our recommending a pardon? Why is Presi- FALN terrorist commutations is evi- Constitution. I was not comforted by dent Obama asserting executive privi- dence of a failure to appreciate the Mr. Holder’s vague assurance that Hell- lege to prevent Mr. Holder from testi- continuing dangers of terrorism. At his er now is the law of the land because it fying about these commutations? Was confirmation hearing, Mr. Holder at- cannot be reconciled with his long Mr. Holder’s judgment in the Rich and tempted to defend his poor judgment record of hostility to second amend- FLAN clemency decisions influenced on the terrorist clemency issue by not- ment rights. by the outcome that he believed Presi- ing these commutations occurred long Through his service as Deputy Attor- dent Clinton wanted so badly? How can before 9/11. ney General and continuing to private I explain to Joseph Connor, whose fa- But as I reminded him, the FALN practice, Mr. Holder has opposed the ther was killed in the 1975 bombing in clemencies came after the first World individual right to keep and bear arms. lower Manhattan, that the man who Trade Center bombing of 1993, and the As Deputy Attorney General, he advo- never spoke to his family before cham- al-Qaida attacks on U.S. embassies in cated for a wide variety of Federal gun pioning clemency for the men respon- Kenya and Tanzania in 1998. As Senator restrictions. Mr. Holder’s fierce hos- sible for his father’s murder will be the COBURN rightly pointed out, his clem- tility to gun rights continued after, as next Attorney General of the United ency recommendation came in the I say, his tenure as Deputy Attorney States? wake of the 1995 Oklahoma City bomb- General. Does Mr. Holder appreciate the grav- ing right here on our own soil, the Mr. Holder feels so strongly about his ity of the threats and the complexity most horrific domestic terror attack opposition to gun rights that he, along of the legal issues posed by the war on that has ever occurred in our country. with his former boss, the former Attor- terror? Can Mr. Holder be counted on So I worry that Mr. Holder is not pre- ney General Janet Reno, filed a brief to support and defend the constitu- pared to lead the Department of Jus- with the Supreme Court in the Heller tional right to keep and bear arms? tice at a moment when this Nation is case and argued against the individual I can’t answer these questions with waging an asymmetric war whose bat- rights approach to the second amend- any degree of certainty. I regret to say tlefield extends across the globe and ment and in favor of the view that the I will vote against the nomination of even onto U.S. soil. second amendment protects only mili- Eric Holder to be the next Attorney If confirmed as the next Attorney tia activities. General. General, Mr. Holder will inherit a com- The Holder-Reno brief argued: EXHIBIT 1 plex legal architecture constructed to The Second Amendment does not protect OBAMA AG PICK DEFENDED GUANTANAMO prevent terrorist attacks here in Amer- firearms possession or use that is unrelated POLICY) to participation in a well-regulated militia. ica and against our allies. That has ad- (By Matt Apuzzo) mittedly been controversial. But I do Although the individual rights ap- WASHINGTON. Nov. 22, 2008—President-elect not think anyone can question its ef- proach prevailed in the Supreme Court Barack Obama’s choice to become the next fectiveness given the fact that we have and in the D.C. Circuit, Holder’s brief attorney general, Eric Holder, once defended not had another terrorist attack on our described that approach as ‘‘unwise’’ the Bush administration’s arguments for own soil since 9/11. and ‘‘unjustified.’’ The Holder-Reno holding detainees at Guantanamo Bay, a po- If Mr. Holder is confirmed, I hope he brief goes on to argue that, even if the sition that runs counter to his more recent will study these issues and treat them second amendment protects an indi- comments—and to a signature policy of the more carefully and with greater delib- incoming administration. vidual right, that right should be nar- Holder, a confidant to Obama on legal eration and greater soundness of judg- rowly construed. issues, recently has been a leading voice in ment than he has demonstrated by his I worry it will be impossible for Mr. the chorus calling to close Guantanamo Bay, conflicting positions in 2002 and 2008. I Holder to vigorously protect the second which he has described as an international hope that rather than shifting his opin- amendment rights of all Americans embarrassment. Likewise, Obama has called

VerDate Nov 24 2008 02:44 Jan 31, 2009 Jkt 079060 PO 00000 Frm 00005 Fmt 0637 Sfmt 0634 E:\CR\FM\G30JA6.006 S30JAPT1 rfrederick on PROD1PC67 with SENATE S1108 CONGRESSIONAL RECORD — SENATE January 30, 2009 it a ‘‘sad chapter in American history,’’ ‘‘I will be responsible for the vision that or more, rose to 2.6 million in Decem- pledged to close the island prison and criti- this team carries out,’’ Obama said, ‘‘and I ber of 2008. So there are a number of cized the Bush administration for arguing will expect them to implement that vision steps we need to take as a government, that terrorism suspects aren’t covered by once decisions are made.’’ and we have been taking them. standards set by the Geneva Conventions. Mr. CORNYN. I yield the floor and But in the months after the Sept. 11, 2001, At a hearing this week, where the terror attacks, Holder defended the Bush ad- suggest the absence of a quorum. Presiding Officer and I are both mem- ministration’s policies at Guantanamo. The ACTING PRESIDENT pro tem- bers of the Budget Committee—and we Asked whether terrorism suspects could be pore. The clerk will call the roll. probably agree those hearings were ex- held forever, Holder responded: ‘‘It seems to The legislative clerk proceeded to cellent—Douglas Elmendorf, Director me you can think of these people as combat- call the roll. of the Congressional Budget Office, re- ants and we are in the middle of a war,’’ Mr. ALEXANDER. I ask unanimous minded us of the steps the Government Holder said in a CNN interview in January consent that the order for the quorum is already taking. The Federal Reserve 2002. ‘‘And it seems to me that you could probably say, looking at precedent, that you call be rescinded. negotiated the sale of Bear Sterns to are going to detain these people until war is The ACTING PRESIDENT pro tem- JPMorgan Chase, $29 billion, to form a over, if that is ultimately what we wanted to pore. Without objection, it is so or- new limited liability company. Fannie do.’’ dered. Mae and Freddie Mac, the agencies Just weeks later, Holder told CNN he f that guaranteed half the home loans in didn’t believe al-Qaida suspects qualified as the country, were taken over by their prisoners of war under the Geneva Conven- ECONOMIC STIMULUS regulator and the Treasury put up $100 tions. ‘‘One of the things we clearly want to do Mr. ALEXANDER. Mr. President, billion to stabilize that situation. The with these prisoners is to have an ability to next week the Senate begins the debate Federal Reserve extended $60 billion in interrogate them and find out what their fu- of the so-called stimulus package. I a line of credit to the American Inter- ture plans might be, where other cells are lo- wish to talk about that for a few min- national Group, the insurance company cated,’’ said Holder, the former deputy attor- utes. It is $1.2 trillion of borrowed tax- called AIG. We had a debate in October ney general during the Clinton administra- payer money to be spent in an effort to where on both sides of the aisle, two- tion. ‘‘Under the Geneva Convention, you are help get our economy restarted. Here is thirds of Republicans as well as many really limited in the amount of information Democrats voted to give the Secretary that you can elicit from people.’’ my position on it, and I believe the po- Holder said it was important to treat de- sition of most Republicans and of some of the Treasury $700 billion to invest in tainees humanely. But he said they ‘‘are not, Democrats. We believe that in order for troubled assets or to use in a variety of in fact, people entitled to the protection of the stimulus to be effective, it should ways to try to keep our economy from the Geneva Convention. They are not pris- be reoriented on housing. First, fix the going straight down. It has gone down, oners of war.’’ He also downplayed criticism real problem: housing. If housing is re- but it didn’t go straight down; we be- that prisoners were being mistreated. started, if home values are stabilized, lieve this is partly because of the ac- ‘‘Those in Europe and other places who are tion the Congress and the President concerned about the treatment of al-Qaida and if people are buying homes, that will do more to help restart the econ- took at that time. members should come to Camp X-ray and see What we had was, in effect, a wreck how the people are, in fact, being treated,’’ omy than anything else. Second, we he said. should let people keep more of their on the highway. There is an old Roy Those were essentially the arguments of own money. A true stimulus is perma- Acuff song by that title. I think that is the Bush administration. Since then, those nent tax relief. If people have more of the best way to explain what was hap- arguments have been criticized by human their own money in their pockets, they pening. It was like a wreck on the rights groups, leading Democrats, and Holder interstate outside Knoxville and sud- himself. will have more confidence. They will be able to buy more. After reorienting to- denly traffic is backed up all the way ‘‘We must close our detention center in to Lenoir City or even Kingston. One Guantanamo Bay,’’ Holder told the Amer- ward housing, that will also help re- ican Constitution Society this summer. ‘‘A start the economy. lane was the money for the bank loan, great nation should not detain people, mili- Since we are borrowing so much of the next lane was the money for your tary or civilian, in dark places beyond the this money, especially, we believe it auto loan, and the next lane was for reach of law. Guantanamo Bay is an inter- ought to be oriented directly toward meeting payroll. As long as that wreck national embarrassment.’’ those items that would specifically cre- was on the highway, none of the money Holder added that he never thought he’d could get where it needed to go, and ate jobs now. It should not go toward see the day where the ‘‘Supreme Court would nobody could borrow on anything. It is good sounding ideas such as Head Start have to order the President of the United better today than it would have been, States to treat detainees in accordance with and Pell grants for college students but we still have a deeply serious prob- the Geneva Convention.’’ that we may want to take up later, Those comments are in line with Obama’s lem. maybe as early as the following week, The law we passed in October tempo- views. Holder did not return e-mail and tele- in a regular appropriations bill. So phone messages seeking comment about his rarily raised the insurance for deposits earlier interviews. Brooke Anderson, a that is our belief: reorient the stimulus from $100,000 to $250,000. Steps were spokeswoman in Obama’s transition office, toward housing, let people keep more taken to guarantee money market restated Obama’s commitment to opposing of their own money, and get the stuff funds. The Treasury, Federal Reserve, torture. out of the bill that has nothing to do and Federal Deposit Insurance Cor- ‘‘Eric Holder shares that view,’’ she said. with creating jobs now, in the next few ‘‘The president-elect has complete con- poration announced agreements with months or in the first year. Citibank and Bank of America. They fidence that Eric Holder will be an attorney We know Americans are hurting. general who will restore respect for the rule created a liquidity program for the of law and for our international commit- Every single Senator knows that. Our banking system. ments.’’ country’s economic turmoil is hitting The Federal Government, in all of its Obama’s advisers are crafting plans to every family where it matters, in the variety of agencies, has been very busy close Guantanamo Bay, release some detain- family budgets. More than 860,000 prop- since October using taxpayer dollars, ees and bring others to the United States to erties were repossessed by lenders in where necessary, or the Federal Re- face trial. One unanswered question, how- 2008, more than double the 2007 level. serve balance sheet, or Federal Deposit ever, is what to do with detainees who could Manufacturing is at a 28-year low. Ten- not be prosecuted in criminal courts without Insurance Corporation funds collected jeopardizing national security. nessee is a State that relies heavily on from banks to try to create a situation The Justice Department under Holder al- manufacturing. The unemployment in which our economy can restart. most certainly would help answer that ques- rate is 7.2 percent, too high. It has been We know, having visited with Presi- tion. higher. I can remember at a time when dent Obama and his team of advisers, In introducing Holder and other members I was Governor of Tennessee in 1982, that they are thinking of even more of his national security team, Obama said he the unemployment rate was 12 percent, things we may need to do. But next welcomed differences of opinion. ‘‘I assembled this team because I am a but 7.2 percent is too high. There were week in the Senate we will be talking strong believer in strong personalities and 1.9 million jobs lost in the last 4 about whether it is a good idea to bor- strong opinions,’’ he said. ‘‘I think that’s months of 2008. The long-term unem- row $1.2 trillion and spend it as the Ap- how the best decisions are made. ployed, people out of work for 27 weeks propriations and Finance Committees

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