May 25, 2006 CONGRESSIONAL RECORD — SENATE S5191 be repaired. This bill is a strong step in giving the Departments of State and of Brett M. Kavanaugh, of Maryland, to the right direction. We need to protect Homeland Security additional time to be United States Circuit Judge for the our borders and look out for American study and correct the various imple- District of Columbia Circuit shall be workers, and we also need a responsible mentation issues related to the WHTI. brought to a close? way to meet the need for temporary I am also pleased that the immigra- The yeas and nays are mandatory workers, particularly in the agricul- tion bill addresses another key border under the rule. tural area, where they represent about issue: the security problem that is The clerk will call the roll. 70 percent of the U.S. agricultural posed by trash trucks entering this The assistant legislative clerk called workforce, with a path to earned citi- country. My amendment, which was the roll. zenship for hard-working, law abiding accepted by the bill managers, would Mr. DURBIN, I announce that the temporary workers. This bill, the prod- stop the importation of Canadian waste Senator from North Dakota (Mr. CON- uct of bipartisan compromise, takes a if the Department of Homeland Secu- RAD), the Senator from West Virginia commonsense approach to all of these rity can not show that the methodolo- (Mr. ROCKEFELLER), and the Senator issues. gies and technologies used to screen from Colorado (Mr. SALAZAR) are nec- The comprehensive immigration re- these trash trucks for the presence of essarily absent. form bill before us today would chemical, nuclear, biological, and radi- The PRESIDING OFFICER. Are there strengthen security at our borders ological weapons are as effective as any other Senators in the Chamber de- through increased border patrol and those used to screen for such materials siring to vote? heavier fines for employers who violate in other items of commerce entering The yeas and nays resulted—yeas 67, the law. It would create a sustainable the United States by commercial vehi- nays 30, as follows: temporary worker program to help fill cle. [Rollcall Vote No. 158 Ex.] the lowest wage jobs. It would enforce Finally, I want to thank the man- YEAS—67 labor protections for U.S. workers by agers of this bill for accepting my Alexander Dole McConnell ensuring that the temporary workers amendment that would protect thou- Allard Domenici Murkowski who are certified do not adversely im- Allen Ensign Nelson (FL) sands of individuals who fled religious Bennett Enzi Nelson (NE) pact them. And it would provide a path persecution in Iraq under Saddam Hus- Biden Feinstein Obama to earned citizenship that does not sein. Due to delays in the immigration Bond Frist Pryor Brownback Graham bump anybody who has applied through bureaucracy, many of these individuals Roberts Bunning Grassley Santorum the legal channels and has been wait- Burns Gregg have not yet had their day in court, Sessions Burr Hagel ing. Undocumented immigrants who and, of those who have, many have Shelby have been here for years, set down Byrd Hatch been denied asylum based on changed Carper Hutchison Smith roots, worked hard, and paid their country conditions since the war. My Chafee Inhofe Snowe taxes would go to the end of the line amendment would make these individ- Chambliss Isakson Specter and earn citizenship after perhaps as Coburn Kohl Stevens uals eligible for legal permanent resi- Sununu many as 10 to 15 years. Cochran Kyl dency if they would have received that Coleman Landrieu Talent I am pleased that we were able to in- status but for the bureaucratic delays. Collins Lieberman Thomas clude additional protections for U.S. The comprehensive immigration bill Cornyn Lincoln Thune workers in the bill. I supported an before us will make our borders more Craig Lott Vitter amendment introduced by Senator Crapo Lugar Voinovich secure while creating a workable tem- DeMint Martinez Warner OBAMA that strengthens labor protec- porary worker program that protects DeWine McCain tions for U.S. workers and bars em- U.S. jobs. I will support this bill and NAYS—30 ployers from hiring guest workers in hope that the conference committee Akaka Durbin Levin areas with a high unemployment rate. will return a final bill similar to it. Baucus Feingold Menendez This and other amendments will help f Bayh Harkin Mikulski ensure that we have a well-balanced, Bingaman Inouye Murray and workable guest worker program. In EXECUTIVE SESSION Boxer Jeffords Reed Cantwell Johnson Reid addition to these amendments, I am Clinton Kennedy Sarbanes also pleased that we have maintained Dayton Kerry Schumer the AgJOBS provision within the bill. NOMINATION OF BRETT M. Dodd Lautenberg Stabenow This provision is a commonsense fix to KAVANAUGH TO BE UNITED Dorgan Leahy Wyden major problems being faced by those STATES CIRCUIT JUDGE FOR NOT VOTING—3 who have the least access to resources: THE DISTRICT OF COLUMBIA Conrad Rockefeller Salazar CIRCUIT—Resumed low wage agricultural workers from ex- The PRESIDING OFFICER. On this ploitation which would adversely im- The PRESIDING OFFICER. Under vote, the ayes are 67, the nays are 30. pact American workers. the previous order, the Chair lays be- Three-fifths of the Senators duly cho- I was pleased that the Senate recog- fore the Senate the pending cloture sen and sworn having voted in the af- nized the significant implementation motion, which the clerk will state. firmative, the motion is agreed to. challenges associated with the Western The legislative clerk read as follows: The PRESIDING OFFICER. The Sen- Hemisphere Travel Initiative and ac- CLOTURE MOTION ator from Pennsylvania. cepted an amendment that would ex- We the undersigned Senators, in accord- Mr. SPECTER. Parliamentary in- tend its deadline. The WHTI requires ance with the provisions of rule XXII of the quiry: Is it appropriate now to begin anyone entering the United States via Standing Rules of the Senate, do hereby debate on the confirmation of Brett a U.S.-Canadian land border to have a move to bring to a close debate on Executive Kavanaugh? passport or other acceptable alter- Calendar No. 632, the nomination of Brett M. The PRESIDING OFFICER. It is ap- native document by January 1, 2008. Kavanaugh, of Maryland, to be United States propriate. The amendment accepted by the Sen- Circuit Judge for the District of Columbia Mr. SPECTER. Mr. President, I sup- Circuit. ate extends this deadline by 18 months Bill Frist, Arlen Specter, Saxby Cham- port the confirmation of Brett to June 1, 2009. bliss, Larry Craig, Mel Martinez, Eliza- Kavanaugh to the Court of Appeals for My home State of Michigan, like beth Dole, Johnny Isakson, Pat Rob- the District of Columbia because of his other northern border States, enjoys a erts, Ted Stevens, Craig Thomas, Thad academic achievements, professional close economic and social relationship Cochran, Chuck Grassley, Judd Gregg, work, and potential to be an out- with Canada. The WHTI will play an Tom Coburn, Richard Shelby, Lindsey standing Federal judge. important role in securing our borders, Graham, Orrin Hatch. Brett Kavanaugh was an honors grad- but it must be implemented in a rea- The PRESIDING OFFICER. By unan- uate from Yale University, was a grad- sonable, fair, and well thought out imous consent, the mandatory quorum uate of the Yale Law School, and a manner that minimizes negative im- call has been waived. member of the Law Journal there. pacts on trade, travel, and tourism. By The question is, Is it the sense of the That is a strong indication of intellec- voting to extend the deadline, we are Senate that debate on the nomination tual achievement. He then clerked for

VerDate Mar 15 2010 00:01 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00057 Fmt 4624 Sfmt 0634 E:\2006SENATE\S25MY6.REC S25MY6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5192 CONGRESSIONAL RECORD — SENATE May 25, 2006 Judge Walter Stapleton of the Court of for inconsistencies, it is understand- sissippi and the Senator from Min- Appeals for the Third Circuit and then able that he was very cautious in his nesota, the Senator from Vermont be Judge Alex Kozinski of the Court of comments. recognized following the chain we Appeals for the Ninth Circuit and then I believe that on this record, Brett M. talked about. clerked for Justice Kennedy on the Su- Kavanaugh ought to be confirmed, and The PRESIDING OFFICER. Is there preme Court of the United States. I urge my colleagues to vote in the af- objection? Those are really outstanding creden- firmative. Mr. CORNYN. Reserving the right to tials, academically and for the begin- I yield the floor. object. ning career of a young lawyer. He then The PRESIDING OFFICER. The Sen- The PRESIDING OFFICER. The Sen- worked in the Solicitor General’s Of- ator from Texas. ator from Texas. fice, argued a case before the Supreme Mr. CORNYN. Mr. President, I have Mr. CORNYN. May I just add to that Court of the United States, and then some remarks I would like to make on unanimous consent request that Sen- worked as associate White House coun- this nomination. ator HATCH be added as the next speak- sel and has been Secretary to President Mr. LEAHY. Will the Senator yield er on our side of the aisle in the queue? Bush. for just a moment? He does have the Mr. LEAHY. I have no objection to He had a second hearing which was floor, I fully understand. I assume we that. I think it is quite appropriate. requested by the Democrats so that he would follow the normal order that The PRESIDING OFFICER. Without could respond to questions which had after the chairman spoke, the ranking objection, it is so ordered. arisen in the 2-year interim since his member would be allowed to speak. Mr. LOTT. Mr. President, I believe first hearing, and he responded by al- Mr. CORNYN. I will be glad to defer Senator DAYTON will actually intro- laying any concerns about any involve- to the ranking member. duce the legislation, and I join as a co- Mr. LEAHY. The Senator from Texas ment which he may have had on the sponsor. He will lead off with his re- has the floor. He does have the floor. marks, and then I will be honored to subject of interrogation of detainees. Mr. CORNYN. Mr. President, I recog- He was asked about any potential follow. nize I have the floor and the right to participation in the administration’s THE PRESIDING OFFICER. The the floor, but I will be glad to accom- electronics surveillance program. He Senator from Minnesota is recognized. modate the ranking member and, if I answered that in the negative. Mr. DAYTON. I thank the Chair. can, by unanimous consent, request He responded to questions with re- (The remarks of Mr. DAYTON and Mr. that I be recognized after he speaks, I spect to the subject of rendition, again LOTT pertaining to the introduction of would be happy to relinquish the floor with no knowledge on his part of any of S. 3239 are printed in today’s RECORD to him. that. under ‘‘Statements on Introduced Bills Mr. LEAHY. I certainly have no ob- He was subject to close questioning and Joint Resolutions.’’) jection to that. I assume what we will about his work with Kenneth Starr on The PRESIDING OFFICER. The Sen- probably do for the rest of the evening, the impeachment proceeding, and he ator from Vermont is recognized. and I suspect we probably will do the was not in a position of leadership. He Mr. LEAHY. Mr. President, I thank same thing tomorrow—hopefully by to- was one of several down the tier, with the Senator from Minnesota and the morrow night or early Saturday we Mr. Starr being Independent Counsel. Senator from Mississippi, and I thank will finish—we will go back and forth. Mr. Kavanaugh was a deputy, with as again the distinguished Senator from I make a request I be recognized, and many as nine other such deputies on Texas, who has shown his usual and upon the completion of my remarks, his level. normal courtesy in allowing me to go He was candid in some criticism of the distinguished Senator from Texas next. the handling of the matter; the public be recognized. The Senate has just passed bipartisan Mr. DURBIN. Reserving the right to release of the report was not the choos- comprehensive immigration reform. I object. think that is an achievement for all ing of Independent Counsel. He testi- The PRESIDING OFFICER. The Sen- Americans, present and future, who fied that he believed that the Inde- ator from Illinois. want to keep our country safe, and it pendent Counsel statute ought to be Mr. DURBIN. Only for the purpose of fixes what most will acknowledge is a changed materially if it was to be re- being in the queue after the Senator broken system. I mention that because vised and that having Mr. Starr both from Texas, if I can amend the unani- the Senate, Republicans and Demo- on Whitewater and the impeachment of mous consent request. the President was too much. Mr. LEAHY. I ask unanimous con- crats, worked together to speak about He wrote a law review article on the sent that Senator DURBIN follow the one of America’s top priorities, and it issue of peremptory challenges for Senator from Texas. worked. I think the American public Black jurors and took the position that The PRESIDING OFFICER. Is there understands that. We ought to con- it was inappropriate, should not be objection? tinue that. We ought to continue that done, and displayed in that scholarly Mr. LOTT. Reserving the right to ob- on the path of addressing Americans’ aptitude on the journal. ject, Mr. President, and I do not wish top priorities. One of the objections raised to Mr. to object, I presume this is a discussion We ought to be debating the war in Kavanaugh involved how close he was on the nominee. Senator DAYTON and I Iraq. None of us can go home without to the President. But it is hardly a sur- have a bill we want to introduce. It hearing a debate on the war in Iraq, ei- prise that Brett Kavanaugh would be will take just 3 or 4 minutes to com- ther for or against it. We ought to be close to the President because the ment on the introduction. debating it on the floor of the Senate. President selects people in whom he Mr. LEAHY. Mr. President, I ask We are, after all, the conscience of the has confidence and who share his ap- unanimous consent that before I am Nation. We should be debating the war proach to jurisprudence, to strict con- recognized—the Senator from Texas in Iraq. struction, and to not legislating from still has the floor—before I am recog- We should debate the rising gas the bench. That prerogative of the nized and the Senator from Texas is prices. You can’t go into a diner in President is what Presidential elec- recognized and then the Senator from America without hearing a debate on tions are about. Illinois is recognized and then the Sen- that. They ask the same thing: Why Some of Mr. Kavanaugh’s answers ator from Idaho is recognized, that 10 aren’t you debating it on the floor of were hesitant, and I think he was very minutes be divided between the Sen- the Senate? concerned about being very precise in ator from Mississippi and the Senator How about the health care costs, what he had to say. He might have from Minnesota. which are going up at a time when sen- been a little forthcoming, but in a con- Will that give Senator LOTT and Sen- iors are faced with what for many of text where there is a question about ator DAYTON enough time? them is an incomprehensible prescrip- subsequent investigations, if the con- Mr. LOTT. That will be more than tion medicine plan. We ought to be trol of the Senate changes, in the con- enough time. That is very generous. talking about that. You can’t go to the text of witnesses appearing before Mr. LEAHY. That upon yielding back senior center anywhere in the country grand juries on five occasions, looking of the time of the Senator from Mis- without hearing that being debated.

VerDate Mar 15 2010 00:01 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00058 Fmt 4624 Sfmt 0634 E:\2006SENATE\S25MY6.REC S25MY6 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 25, 2006 CONGRESSIONAL RECORD — SENATE S5193 What is wrong with the Senate, the istration’s use of 750 Presidential sign- publicans started playing politics with conscience of the Nation, debating it? ing statements to try to reserve to the the DC Circuit. They blocked President How about stem cell research? So President the power to pick and choose Clinton’s nominees so they could make many parents of children with diabe- which laws passed by Congress he sure they had a majority of Republican tes, those who have had paralyzing in- wanted to follow. In other words, he al- appointees on the court. They were juries, they say: Why aren’t you at lowed the President to sign a bill but among the 61 of President Clinton’s least determining a way to have stem then say: This law may apply to others, nominees that the Republicans pocket cell research? but it is not going to apply to the filibustered. And their plan succeeded. What about the reauthorization of President or anybody else to whom I After confirming two other nominees the Voting Rights Act? Not only has don’t want it to apply. It is the first last year whom I strongly opposed— the Voting Rights Act worked to help time in my lifetime a President has Janice Rogers Brown and Thomas Grif- those minorities in this country who stated so emphatically, 750 times: I am fith—Republican nominees now com- were denied the right to vote before, above the law. He has helped the Presi- prise a 2-to-1 majority on the second but let us make sure that it works in dent pack the Federal bench with most important court in the land. This the future for children today, Hispanic right-wing ideologues. is not a court which needs another children today, African-American chil- He has helped design the White rubberstamp for this President’s asser- dren today, the children of all races? House’s overbearing secrecy policy. So tions of Executive power. How will we guarantee they will have now we are spending billions of dollars The Republican majority who chose the right to vote? We should reauthor- in marking things ‘‘top secret,’’ some to shrink the court when there was a ize the Voting Rights Act. of which were on Government Web Democratic President is now bent on These are all things on which the sites for long periods of time until they packing this court. They want this up- Senate could come together in a bipar- realized it was pointing out embar- or-down vote even though they didn’t tisan fashion. We could have a bipar- rassing mistakes in the Bush-Cheney apply that standard or anything near it tisan debate. The country would ben- administration. So they yanked it off to President Clinton’s nominees to the efit by it. We would be a better body. the Web sites and marked it ‘‘top se- DC Circuit. As I say, they denied 61 of The country would be better. But in- cret.’’ We even have now the FBI going President Clinton’s nominees an up-or- stead, it appears that because it is an to a dead journalist—to a dead jour- down vote. When they stalled the nom- election year, then we have to go to nalist, Jack Anderson—and pressuring ination of Merrick Garland to the DC controversial, polarizing judicial nomi- his elderly widow to give up his notes Circuit beyond the 1996 election, even nations. of 20 and 30 years ago because it might Senator HATCH as chairman of the This nomination, like the difficult prove embarrassing to some in their committee became frustrated. He and controversial nominations of party. claimed the way the Republicans were Judge Terrence Boyle and Michael So my question for this nominee, opposing judicial nominees was playing Wallace, signifies that the Bush-Che- which is the same question I have politics with judges, was unfair, and he ney administration and those who sup- asked of all nominees of either party, was sick of it. I wish he had followed port it here in the Senate, are more in- is whether you will be an independent through instead of joining with his fel- terested in playing partisan election- check and balance. low Republicans in denying 61 judges I recall recommending to President an up-or-down vote. We did finally get year politics by heeding the siren call Clinton a well-known Republican from Merrick Garland through, but he was of special interest groups rather than my State for a seat on the Second Cir- the last one the Republicans were will- tackling the pressing issues facing cuit Court of Appeals. I did that even ing to consider for confirmation to this Americans today. Local and national law enforcement though the man is certainly more con- important circuit. Here we have a person with no real have called upon the President to with- servative than I and belonged to the other party. I did it because I knew he experience other than being willing to draw the nomination of Judge Boyle, would be independent; he would not be take political orders. as I have, and he would be well advised a rubberstamp for any President, Re- Let me tell you about two of the to do so. The nomination of Michael publican or Democratic. nominees of President Clinton whom Wallace received the first ABA rating Regrettably, Mr. Kavanaugh has the Republicans would not allow to of unanimously ‘‘not qualified’’ for a failed through two hearings to estab- have a vote, a so-called pocket fili- circuit court nominee in more than 20 lish that he has the capacity to be an buster. One was Elena Kagan. They years. The last one to get that rating independent check on his political pa- wouldn’t allow her to come to a vote. didn’t go through. And the nomination tron, in this case a President who is as- Some even said: We are not sure of her before us today of Brett Kavanaugh is serting extraordinary claims of power. qualifications. She is now dean of the one of the few judicial nominations to In fact, despite his close ties to the Harvard Law School. These are the be downgraded over time by the ABA. White House’s inner circle, he wouldn’t same people pushing a nominee for the The Senate’s job is to fulfill our duty even tell us what issues he would Fifth Circuit, as I mentioned earlier, under the Constitution, not to advance recuse himself from hearing as a judge. who is rated unanimously unqualified. a political agenda. No matter what our We asked him specifically: Here is a And they pocket filibustered Alan Sny- political affiliation, we are supposed to case where you designed the legal basis der. He had served as a clerk to Justice consider the interests of all Americans. for something, and now it comes before Rehnquist—no screaming liberal he, We have to be able to assure the Amer- you as a judge; would you recuse or God rest his soul. Mr. Snyder was an ican people that the judges confirmed rule on work you have done? He experienced and respected litigator, to lifetime appointments to the highest wouldn’t even acknowledge that he but he was pocket filibustered. The courts in this country are being ap- would. Instead we heard from a nomi- fact is, for the rest of President Clin- pointed fairly to protect their inter- nee who parroted the Bush-Cheney ad- ton’s second term, they blocked all ests, rather than to be a rubberstamp ministration’s talking points on sub- nominees to the DC Circuit, pocket for whichever President nominated ject after subject. I don’t think the filibustered them all with impunity. them. Mr. Kavanaugh is a nice young Senate should confirm a Presidential I will give a little background. Dur- man who was nominated for the U.S. spokesperson to be a judge of the sec- ing the 17 months I was chairman of Court of Appeals for the District of Co- ond highest court in the land. the Judiciary Committee, I tried to lumbia Circuit after working for most After carefully evaluating Mr. stop the poisonous pocket filibustering. of his career in behalf of the Bush-Che- Kavanaugh’s record and his answers at I am a Democrat, and the Bush-Cheney ney administration and the Republican two hearings, it is clear that he is a po- administration is Republican. In 17 Party in partisan, political jobs. Since litical pick being pushed for political months, I moved through, and the helping to author the Kenneth Starr reasons. His nomination is a continu- Democratic-controlled Senate moved Report, he has worked in the office of ation of the Republicans’ decade-long through, 100 of President Bush’s nomi- the White House Counsel and as staff attempt to pack the DC Circuit. nees. We actually moved them faster secretary to the Bush-Cheney adminis- You can go all the way back to Presi- than the Republicans had moved them tration. He was involved in the admin- dent Clinton’s first term when the Re- for a Republican President.

VerDate Mar 15 2010 00:01 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00059 Fmt 4624 Sfmt 0634 E:\2006SENATE\S25MY6.REC S25MY6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5194 CONGRESSIONAL RECORD — SENATE May 25, 2006 But I don’t want to say they He was described by interviewees as what the President would want him to rubberstamped everybody. They, the ‘‘sanctimonious,’’ ‘‘immovable and do. We are going to confirm somebody Republicans, actually did treat one very stubborn and frustrating to deal who, in sworn statements, talks about nominee the same way they treated with on some issues’’—not the qualities how he would try to make sure he President Clinton’s. It is the way they that make for a good judge. ruled as the President would want him treated White House Counsel Harriet Despite the word put out falsely by to rule? Have we really sunk that low Miers when the President nominated the Bush-Cheney defenders, it was not in the Senate on judicial nominations? her. a change in membership in the ABA We heard from a nominee who re- She is a woman who has not gone to peer review committee that led to his sponded not with independent answers Ivy League schools but has a more im- downgrading. Three-quarters of those but with the administration’s talking pressive background and experience who previously reviewed this nomina- points. We heard from a young man than this nominee—certainly much tion, and continued on the committee, who, when invited by the chairman to more legal experience than this nomi- voted to downgrade the rating based on introduce his family, began his re- nee. Republicans questioned her quali- the recent interviews and review. marks not by introducing the family fications. They demanded answers His response to one very simple ques- but by thanking the President for about her work at the White House and tion I asked during his most recent nominating him and later empha- her legal philosophy. They would meet hearing spoke volumes. I asked the sized—as if that was a qualification— on an off-the-record basis with the nominee why he had taken 7 months to that he had ‘‘earned the trust of the press and say what a terrible nomina- answer the written questions sub- President’’ and his ‘‘senior staff.’’ I have no problem with the President tion this was for President Bush to mitted to him following his initial nominating Republicans—although make. hearing in 2004. He repeated the mean- I said: At least let her have a hear- ingless phrase that he ‘‘took responsi- that seems to be all he will nominate, unlike other Presidents of both parties ing. All Democrats on the committee bility’’ for such dismissive and irre- who have nominated people from both said: Out of fairness to the President, sponsible conduct and, implicitly, for parties—but I expect him to nominate we ought to let his nominee have a his lack of seriousness about the con- somebody who can be independent and hearing. The Republicans said: She is firmation. When he did that, it actu- will not have his strings pulled by the not going to get a hearing, and they ally elicited laugher from the hearing White House. It may be useful for ad- forced the President to withdraw her room but not laughter from me because vancement within the Bush-Cheney ad- nomination. I felt it was not the first time he ‘‘dis- ministration in Republican circles, but Despite the political battle, as I said sembled’’ in response to my questions. they are not qualifications for a judge when I moved through 100 of President I suspect the truth is, he made a po- who can be independent if he is asked Bush’s nominees, I approached the litical calculation and decided to ex- to rule on this President’s or the Bush- nomination of Mr. Kavanaugh with an pend his time and effort at his bene- Cheney administration’s policies. open mind. I gave him the chance that factor’s reelection campaign during the Senator GRAHAM put the question Elena Kagan and Alan Snyder never re- spring, summer, and fall of 2004 rather this way during the course of the hear- ceived. In fact, he has had more oppor- than answering the questions legiti- ing: ‘‘There is a fine line between doing tunities than they. He has had an op- mately asked by Senators on the Judi- your job as a White House counsel and portunity to demonstrate at not one ciary Committee. He may be brilliant being part of the judicial selection but two hearings that he could be an at politics and have powerful sup- team and being a judge yourself. There independent nominee who deserved to porters, but that doesn’t mean he will is a line between being an advocate and be confirmed. be a good judge. This is, after all, a being a judge.’’ I don’t believe he The Washington Post noted in 2003, vote to determine not who your sup- showed he knows that line. The DC Cir- when President Bush nominated Mr. porters are or not how good you have cuit is too important to pack with Kavanaugh, that he had nominated been at partisan politics but how good those who would merely rubberstamp somebody ‘‘who will only inflame fur- a judge you will be. the Bush-Cheney administration or any ther the politics of confirmation to one In my opening statement at his hear- administration, Democratic or Repub- of this country’s highest-quality ing, I raised a key question regarding lican. We can’t rubberstamp an admin- courts’’ and concluded that it was ‘‘too this nomination: Will he demonstrate istration’s policies. bad Mr. Bush is too busy playing poli- his independence and show he can serve We had the sudden and basically tics to lead.’’ I agree. Instead of being in the last independent branch of the forced resignation of the President’s an uniter, he is being a divider. Government? One party controls the handpicked head of the CIA, Porter I kept an open mind, even though White House, the Senate, the House of Goss. America witnessed another only 1 of the 22 judges appointed to the Representatives. There is only one ‘‘heck of a job’’ accolade to an adminis- D.C. Circuit since the Nixon adminis- body left to be independent. That is the tration insider leaving a critical job tration, Kenneth Starr, had even less courts. Can we look to him to be a undone. This administration insider— legal experience at the time of his check and balance on the President, we saw what a great job he did. So, like nomination than Kavanaugh. Through- who is asserting extraordinary claims administration insiders who ran FEMA out all Republican and Democratic of power, or on any President? right after Hurricane Katrina, the Presidents, only Kenneth Starr had He could have told us something President said they had done a heck of less experience since President Nixon’s about his responsibilities as staff sec- a job. I think virtually all Americans, time than Mr. Kavanaugh. retary or as an associate White House Republican and Democratic, would dis- I even kept an open mind after Mr. counsel, giving us examples when he agree. In fact, for that matter, this Kavanaugh’s nomination was one of showed independence and good judg- week we learned that the President’s the few to be downgraded by the ABA. ment, but he didn’t. Instead, he ap- Secretary of the Veterans’ Administra- I can’t recall anyone being confirmed peared at his confirmation hearing to tion was in charge when there was the after such a development. be a spokesman and representative for largest theft of private information But after I saw Mr. Kavanaugh at his the administration. Instead of speaking from the Government ever—the largest recent hearing, I could appreciate one about how independent he would be, he theft ever, the loss of information on judge interviewed by the ABA peer re- basically over and over again acted more than 26 million American vet- view subcommittee describing Mr. like a spokesman for the administra- erans. Kavanaugh as ‘‘less than adequate’’ tion. Compounding the incompetence is and someone who ‘‘demonstrated expe- Courts are not supposed to be owned the misguided decision by the Vet- rience on the level of an associate.’’ by the White House. I don’t care which erans’ Administration for secrecy in Others interviewed recently raised con- administration is in control of the trying to cover it up for the last 3 cerns about Mr. Kavanaugh’s ability to White House, they are not supposed to weeks. Boy, if we don’t talk about it, if be balanced and fair, given his years in control the courts. Over and over he we cover it up, maybe nobody will partisan positions, working to advance answered our questions by alluding to know that we lost the critical private a particular partisan political agenda. what the President would want and information of 26 million veterans.

VerDate Mar 15 2010 00:01 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00060 Fmt 4624 Sfmt 0634 E:\2006SENATE\S25MY6.REC S25MY6 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 25, 2006 CONGRESSIONAL RECORD — SENATE S5195 This is falling on the heels of last least ask for the courts to be a check Unfortunately, in this case, the year’s debacle of the $1 billion shortfall and balance to preserve our rights and White House wants to be dividers not in the VA’s budget for veterans health our way of life? If our Government uniters. And the leadership is ready to care by the same leadership, who said: overreaches, at least we can count on cater to the extreme right-wing and Oh, we have plenty of money when the courts to be there to check and bal- special interest groups agitating for a they want to make political points, ance. fight on judicial nominations. They then quietly to the Congress after, say- In fact, now that the administration made no secret of the reason for push- ing: Whoops, we don’t. It is a heck of a is raiding congressional offices, the Re- ing nominations to the Senate. They job. It is just one more heck of a job by publican leadership in Congress is fi- are even willing to hold up confirma- this administration. nally protesting. When ordinary Amer- tion of the new Director of the CIA to Maybe we should have a ‘‘heck of a icans’ telephone calls and Internet use vote now instead of a week from now job’’ medal to give to all of these peo- is being wiretapped without warrants, on a nomination that has waited 3 ple who get fired for incompetence— that same Republican leadership years anyway. They just want to stir give them a ‘‘heck of a job’’ medal— looked the other way. I guess they had up a fight. great big thing, you have done a heck to tread on the toes of Members of Con- Mr. Kavanaugh is a young, relatively of a job. It is a heck of a job on gress before the Republican Congress inexperienced but ambitious person Katrina; it is a heck of a job on will say anything. who, in two hearings, has failed miser- rubberstamping nominees for the Last year, when the President nomi- ably to demonstrate his capacity for courts; it is a heck of a job when you nated Harriet Miers, Republicans ques- independence. I have voted for an awful lose 26 million records and put these tioned her qualifications and demanded lot of Republican nominees, and I ex- veterans at great risk. Oh, wait a answers about her work at the White pect I will in the future. I am not going minute. They did say they would have House and her legal philosophy. They to vote for any nominee—Republican an 800 number. If you are 1 of the 26 defeated her nomination without a or Democrat—who has failed to dem- million now facing identity theft, hearing. Now it appears that they are onstrate his capacity for independence. maybe lose your car, maybe lose your back to their rubberstamping routine This nominee has not, and I cannot in house, maybe lose your pension, maybe with every Senate Republican ready to good conscious support action on this lose your life savings, we have an 800 approve this nomination without ques- nomination to one of the Nation’s number for you. tion or pause. highest courts. Anybody try to get through to that Then we ask the question: The Presi- The PRESIDING OFFICER. The Sen- 800 number? If you do, they tell you go dent’s counsel, the staff secretary, did ator from Texas. out and buy protection. Whatever hap- that nominee act as a check and bal- Mr. CORNYN. Mr. President, almost pened with ‘‘the buck stops here’’? It ance, or will he continue, as he said at 3 years have passed since Brett has to be more than photo-ops when his hearing, to do whatever the Presi- Kavanaugh was nominated to the U.S. you run operations. dent wanted? Court of Appeals for the DC Circuit. I What is desperately lacking through- At his hearing, Senator FEINSTEIN am glad that the time has finally come out this administration is account- and I gave him another opportunity to for an up-or-down vote on his nomina- ability. The attack on 9/11 happened on answer concern about his loyalty to tion. their watch. You don’t see account- the President. We asked about recusal. Despite the threats of a filibuster and ability. The faulty intelligence, the He could have said he would not hear the unwarranted attacks on the nomi- nee’s qualifications and character, years of fundamental mistakes in Iraq, any matter that raised questions about Brett Kavanaugh will soon be con- hundreds of billions of dollars spent in the President’s claims of executive firmed by a bipartisan majority of this the war in Iraq, and we were told that power insofar as was involved with the development of the policies and prac- body. we were going to be greeted as lib- I fully support his nomination, and tices of the Bush-Cheney administra- erators and that it would be over in a believe that he will be a valuable addi- tion. It is almost judicial ethics 101 in matter of days. The lack of prepara- tion to the Federal bench. In just a mo- the first year of law school. The easy tion, the horrific aftermath of Katrina, ment, I will outline the reasons why. and on and on—billions spent on home- answer is: Of course, I will not rule on But, first, I must say I am troubled land security. that. Of course, I would recuse myself that his confirmation has been need- First, a crony of the President was on something I have developed in the lessly protracted and contentious. It is going to be put in to run the Depart- White House. He could have walled off the contentiousness that concerns me ment of Homeland Security until they matters covered by the Presidential most. found out the very disturbing things signing statement—750 of them. This Brett Kavanaugh’s nomination has about his personal life; found out President has shown unchecked Execu- routinely been described in the press as things that the administration knew tive power exceeding that of Richard ‘‘controversial’’—not because of any le- about, that they were trying to keep Nixon. He could have said that given gitimate quality or characteristic of secret. But when the press found out his role in the development of this ad- the nominee, but simply because my about it, somebody had an excuse not ministration’s secrecy policies he colleagues on the other side have de- to go there. would recuse himself from those ques- clared it so. Be ready on a moment’s notice if we tions regarding the right of the Amer- These individuals have demeaned are ever attacked again, like we were ican people to know about their Gov- Kavanaugh as a ‘‘crony,’’ a ‘‘partisan attacked early on in the Bush-Cheney ernment. It would not only be the right warrior,’’ and have characterized his administration. Well, with Katrina, we answer, but it would be an easy answer. nomination as ‘‘among the most polit- had days and days and days of notice. After all, the administration stacked ical in history’’ and ‘‘judicial payment It didn’t do any good. that court with so many Republicans, for political services rendered.’’ Yet, a I think, speaking in behalf of the he should feel comfortable, but even leading Democrat critic during a re- President for a moment, it is not all there he didn’t say he would follow cent hearing conceded that Brett his fault. He has not been helped by the basic judicial ethics. Kavanaugh has ‘‘blue-chip creden- Republican-controlled Congress that At a time when the Senate should be tials.’’ I don’t understand how these won’t provide any checks and balances. addressing America’s top priorities, the comments can be squared with one an- The Republican controlled Congress President and his Senate allies instead other. won’t raise the questions that might be are trying to divide and distract from Mr. President, I have deep concerns asked, and that, had they been asked, fixing real problems by pressing for- about the tenor of many recent debates might have forced the administration ward with this controversial unquali- over this President’s judicial nominees. to do a better job. But the Republican- fied nomination. I fear that this confirmation battle is controlled Congress won’t serve as a We showed in the recent debate that just the latest in a series of bad prece- check and balance, when there are co- at least among senior Members—Re- dents set in recent years when it comes lossal failures of homeland security, or publican and Democratic Members—we to confirmation votes on a President’s at the VA, or anywhere else. Can we at could be uniters and not dividers. nominees.

VerDate Mar 15 2010 00:01 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00061 Fmt 4624 Sfmt 0634 E:\2006SENATE\S25MY6.REC S25MY6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5196 CONGRESSIONAL RECORD — SENATE May 25, 2006 The fight over Justice Samuel Alito’s precedent in a society that is com- Kavanaugh comes to this nomination nomination is the first example that mitted to the rule of law.’’ with not the weakest credentials in the comes to people’s minds, but there are Brett Kavanaugh clearly understands history of this bench, but the second many others. You will recall that dur- the impartiality and independence re- weakest credentials. ing the Alito debate, one of his oppo- quired of an article III judge. At his Earlier this month, Senator KENNEDY nents said, ‘‘You name it, we’ll do it,’’ first hearing in April of 2004, Mr. called the Kavanaugh nomination a tri- to defeat the Alito nomination. Sadly, Kavanaugh described it best when he umph of cronyism over credentials. Un- that statement captured the tone of said: ‘‘I firmly disagree with the notion fortunately, I must agree. The nomina- the Alito confirmation debate—where that there are Republican judges or tion of Brett Kavanaugh is a political we saw a distinguished public servant Democrat judges. There is only one gift for his loyal service to this Presi- subjected to unwarranted, baseless at- type of judge. There is an independent dent and his political party. Mr. tacks. judge under our Constitution. And the Kavanaugh is not being given an en- Fortunately, a bipartisan Senate re- fact they may have been a Republican graved plaque for his fine service; he is jected the attempt to filibuster Samuel or a Democrat or an independent in a being given a lifetime appointment to Alito. Any attempt to filibuster Brett past life is completely irrelevant to the second highest court in the land. Kavanaugh would surely meet the how they conduct themselves as By every indication, Brett Kavanaugh same fate. judges.’’ will make this judgeship a gift that I don’t think that I am going out on The independence of our Federal ju- keeps on giving to his political patrons a limb when I say that neither the diciary is, again, using Brett who have rewarded him richly with a Alito nor the Kavanaugh confirmation Kavanaugh’s words, ‘‘the crown jewel’’ nomination coveted by lawyers all over debates could be considered the Sen- of our constitutional democracy. But I America. ate’s ‘‘finest hour.’’ Taken together worry that the Senate—perhaps inad- In light of his thin professional with many others, these confirmation vertently—is giving the American peo- record, Mr. Kavanaugh bears a particu- battles have the potential to paint for ple a distorted view of our system. I re- larly high burden of proof. I have sat the public a distorted picture of our gret that at the root of these harsh and through the hearings with Mr. Federal judiciary—and further erode unfair attacks may be a deep-seated Kavanaugh. In my estimation, he has the confidence in our legal system. cynicism, namely, that Federal judges not met that burden. He has so little The U.S. Senate should take the lead are somehow just another branch of experience as a practicing lawyer, no and give the public a more accurate un- the legislature, that they are merely experience as a judge. He had a special derstanding of the judge’s role in our politicians in black robes who are obligation when it came to these nomi- constitutional democracy. To achieve somehow able to inject their own pol- nation hearings to tell us what he be- that, the judicial confirmation process icy agendas into court decisions, there- lieves and what he would do on this im- must be more civil, respectful, and free by rendering the popular phrase ‘‘legis- portant judicial assignment. He failed. of partisan politics. lating from the bench.’’ As I said about the DC Circuit, it is There are many reasons I support But nothing could be further from not just any court of appeals. It is the this fine nominee. the Founders’ vision of our judiciary first among equals. It is based in Wash- Brett Kavanaugh is, by any reason- under the Constitution; Federal judges ington, but its rulings affect Ameri- able measure, superbly qualified to join are given life tenure without salary re- cans from coast to coast. It is the court the Federal bench. His legal resume is duction, precisely because we want to of last resort in some cases involving as impressive as they come—one with a ensure they will decide each case, big the air that every American breathes, demonstrated commitment to public or small, on its own merit according to the water that we give our children, service. After law school at Yale, where the law, according to the facts and not the right of labor organizations to col- he was an editor of the Yale Law Jour- with any agenda. lectively bargain, whether Americans nal, Kavanaugh held prestigious clerk- Judicial independence requires faith- will have access to telecommuni- ships for three Federal appellate ful application of the Constitution and cations, and even the price we pay for judges—including U.S. Supreme Court the law to each case. I supported Chief electricity. Justice Anthony Kennedy. He also Justice John Roberts and Justice Sam The significance of the DC Circuit is served in the Solicitor General’s office, Alito because I believe they will re- seen in the way it has become the farm the Office of Independent Counsel, and spect our Constitution and respect our team for the Supreme Court. Over half was a partner at Kirkland & Ellis, one laws. And I believe Brett Kavanaugh of all the Supreme Court nominees dur- of the Nation’s elite law firms. Most re- will do the same. ing the past quarter century were cently, he was Associate White House Brett Kavanaugh is a dedicated pub- judges on the DC Circuit where Presi- Counsel, and is currently Staff Sec- lic servant who will serve this Nation dent Bush wants to send his staff sec- retary to President Bush, a job whose with distinction as a Federal judge. I retary, Brett Kavanaugh. If Mr. title belies the very serious and impor- urge my colleagues to confirm him. Kavanaugh is confirmed for the DC Cir- tant responsibilities that that indi- I yield the floor. cuit, it would not surprise me if the vidual performs. The PRESIDING OFFICER. Under Republicans would try to elevate him Earlier this month, the Judiciary the unanimous consent, the Chair rec- to the highest court in America. Committee had the good fortune of ognizes the Senator from Illinois. Let’s take a look at his experience hearing from Kavanaugh’s mentors, Mr. DURBIN. Mr. President, we are for this job. Compared to others who two men who know him best. Neither considering the nomination of Brett have served on this important court, of these men recognized the critics’ de- Kavanaugh to the United States Court Mr. Kavanaugh’s track record just does meaning description of Brett of Appeals for the DC Circuit. Why are not stand up. He has never had a jury Kavanaugh as a partisan or as someone we taking extra time on this nomina- trial in his life. And he has never had with an agenda. tion? Why are Members coming to the a trial before a judge. I don’t believe he Ninth Circuit Judge Alex Kozinski Senate on both sides, some expressing has ever taken a deposition. I don’t told the Committee that he ‘‘never support and others opposition? Why is know if he has ever filed a motion in sensed any ideology or agenda’’ when this different from any judicial nomi- court. There is no evidence that he has Kavanaugh served as his law clerk— nation? There are two reasons. This is any understanding, basic under- perhaps the most important job other not your normal Federal court. The standing, of trial practice in civil or than the job of the judge in judicial United States Court of Appeals for the criminal courts in America. chambers. Third Circuit Judge Robert DC Circuit is the second highest court Think of that for a moment. Though Stapleton urged Kavanaugh to consider in America. It has been the launching this man has graduated from out- the judiciary as a career because, in ad- pad for Supreme Court Justices. They standing schools, he has clerked for im- dition to this young clerk’s legal acu- consider some of the most complex and portant judges, he has never had to roll men, he displayed ‘‘no trace of arro- technical litigation that faces the Fed- up his sleeves and represent the client gance and no agenda.’’ eral bench. It is not just another court. or represent the United States of Judge Stapleton praised the nominee Second, Brett Kavanaugh is not just America or any State or local jurisdic- for appreciating the ‘‘crucial role of another judicial nominee. Brett tion at a trial.

VerDate Mar 15 2010 00:01 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00062 Fmt 4624 Sfmt 0634 E:\2006SENATE\S25MY6.REC S25MY6 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 25, 2006 CONGRESSIONAL RECORD — SENATE S5197 He has very little experience, of For example, he would not tell us his interviewed by the American Bar Asso- course, on the issues that come before views on some of the most controver- ciation stated that Mr. Kavanaugh’s this court. Nearly half of the cases in sial policy decisions of the Bush ad- oral presentation at the hearing was the DC Circuit Court involve Federal ministration—like the issues of torture ‘‘less than adequate’’ and that he had agencies dealing with the environment, and warrantless wiretapping. He would been ‘‘sanctimonious.’’ That is not a electricity, labor unions and tele- not comment. He would not tell us great send-off if a person who is being communications. Mr. Kavanaugh was whether he regretted the role he played nominated for a lifetime appointment asked: Now, in this field of expertise in supporting the nomination of some to the bench, a person who will now that you want to be a judge in, tell us, judicial nominees who wanted to per- stand in judgment not only of other what kind of cases have you handled? mit torture as part of American foreign judges but of the counsels and attor- What kind of experience do you have? policy, who wanted to roll back the neys that appear before him. What did you bring to this? What kind clock on civil rights and who wanted to A lawyer interviewed by the Amer- of wisdom as a judge will you bring to weaken labor and environmental laws. ican Bar Association also said: ‘‘Mr. this? He could identify only one case in It would have been so refreshing and Kavanaugh did not handle the case well his entire life that he had ever been in- reassuring if Brett Kavanaugh could as an advocate and dissembled.’’ That volved in that related to any of those have distanced himself from their ex- doesn’t sound very promising for some- four important agencies. treme views. But a loyal White House one seeking a lifetime appointment to During the 113-year history of the DC counsel is not going to do that. And the second highest court in the land Circuit Court there has only been one that is how he came to this nomina- with some of the most technical and judge, only one in its history, who has tion. That is how he addressed the Sen- difficult arguments and issues to con- been nominated who had fewer years of ate Judiciary Committee with his loy- sider. legal experience than Brett alty to the President. One interviewee called Mr. Kavanaugh. That judge was a man by He would not tell us what role he Kavanaugh ‘‘insulated.’’ Another per- the name of Ken Starr. No other DC played in the White House’s unprece- son said Mr. Kavanaugh is ‘‘immovable Circuit Court judge in the past 113 dented efforts to give the President vir- and very stubborn and frustrating to years has had less experience than tually unchecked power at the expense deal with on some issues.’’ Brett Kavanaugh. Is that what we are looking for in a Is that the best we can do? Is that of congressional oversight. In light of Mr. Kavanaugh’s failure to judge, an insulated person, immovable the best the President and the White open up to the committee, we have to and stubborn, who dissembles when he House can do for the people of Amer- just guess about his brief career. He co- is in the courtroom and has a sanc- ica? Give us young men who may have authored the Ken Starr Report; he rep- timonious way about him? I can tell great promise, but little experience? resented Elian Gonzales; he worked in you, as a practicing lawyer, that is a People who may be right on the polit- judge I would avoid, and most people ical issues for this White House but Florida on the Bush 2000 recount; he would avoid nominating that kind of have not demonstrated the wisdom or worked with Karl Rove and the Fed- lawyer to become a judge. life experience that qualify them to eralist Society to pick ideological judi- cial nominees. He has been the go-to The ABA also stated they were dis- stand in judgment on critical issues appointed that Mr. Kavanaugh seemed that affect the lives of every single lawyer time and time again for the far to have a ‘‘lack of interest’’ in the American? right in American politics. And now he Manual Miranda ‘‘memogate’’ scandal At his second hearing Mr. Kavanaugh is being handsomely rewarded for his tried to assure us that his career in loyalty, for his service to his political and that he failed to conduct an inter- government service was similar to oth- party. nal White House investigation as to ers who have served in the DC Circuit. Other than his judicial clerkships, whether the scandal had tainted the He compared his background in govern- Mr. Kavanaugh has only worked for Bush administration’s judicial nomina- ment service to a former DC Circuit two people during his entire legal ca- tion process. This issue is one I know pretty well. judge by the name of Abner Mikva, reer: President George Bush and Ken who served with distinction on the DC Starr. I was one of two Senators whose com- Circuit Court from 1979 to 1995. It was Given this background, I asked Mr. puters were hacked into by Mr. Manny truly a Lloyd Bentsen/Dan Quayle mo- Kavanaugh if he would agree to recuse Miranda, who at the time was a Repub- ment that Brett Kavanaugh would sug- himself in cases involving the Repub- lican staff member, who worked at var- gest that he was in Abner Mikva’s lican Party or the Bush administra- ious times for the Senate Judiciary league. That comparison is such a tion. Clearly, he has a conflict of inter- Committee and for the Senate Repub- stretch. est, at least the appearance of a con- lican leadership. Mr. Miranda hacked Judge Mikva had 28 years of legal ex- flict of interest, from all of the years into my computer, my staff computer, perience before he was nominated to he spent as a loyal Republican attor- and stole hundreds if not thousands of the DC Circuit. Abner Mikva served for ney. I asked him, Would you step away legal documents—memoranda that had 9 years in Congress, 10 years in the Illi- from cases that directly impact the Re- been prepared by my staff analyzing nois legislature. He had worked for publican Party and the Bush adminis- issues, analyzing nominees. Mr. Mi- over 12 years in private practice. As tration policies? He refused. randa stole these documents and then the late Senator Lloyd Bentsen, who The real question is whether Judge turned them over to organizations that just passed away, said, to paraphrase, I Kavanaugh would be fair and open- were sympathetic with his political know Abner Mikva; Abner Mikva is a minded. And there are new concerns point of view. There was some question friend of mine, and Brett Kavanaugh is that have been raised about Mr. as to whether those documents some- no Abner Mikva. Kavanaugh’s judicial temperament. I how migrated to the White House deci- Because of his thin track record as a saw him at the last hearing with his sion process—legitimate questions be- lawyer, Mr. Kavanaugh had a special wife and baby. He looks like a fine fa- cause those were times when many of burden of proof to be candid and forth- ther—a beautiful young family. To all these nominees were very controver- coming with the committee, to tell us appearances, a good person coming sial. who he is and what he stands for. He from a good family. But those who When Mr. Kavanaugh was asked did not meet that burden. Every time have watched him in the courtroom about these things, he was not that in- he came close to answering a hard have come to different conclusions. terested—either when the ABA asked question, he quickly backed away. But Last month the American Bar Asso- the questions or when the questions he was well-schooled in the process be- ciation downgraded Mr. Kavanaugh’s were asked in the Senate Judiciary cause he spent his time in the White rating after conducting additional Committee. Those questions went to House coaching judicial nominees not interviews with judges and lawyers the integrity of the process of naming to answer questions. Well, he learned who had actually seen him in the men and women to our Federal judici- as a teacher, and he demonstrated it courtroom and worked with him in the ary for lifetime appointments. You before the Senate Judiciary Com- limited exposure he has had to Amer- would believe that Mr. Kavanaugh, in mittee. ica’s courtrooms. A judge who was his capacity as White House Counsel,

VerDate Mar 15 2010 00:01 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00063 Fmt 4624 Sfmt 0634 E:\2006SENATE\S25MY6.REC S25MY6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5198 CONGRESSIONAL RECORD — SENATE May 25, 2006 would have taken that issue much At this point, there is little evidence to he and others had spent well over 5 more seriously than he obviously did. base that on. But I hope for the sake of years working through all the fine and This nominee is not the best person this court and for the Federal judiciary difficult points of negotiation between for an important job. Michael that is the case. very opposing and sometimes con- Kavanaugh does not deserve a lifetime Mr. President, I yield the floor. flicting parties as they dealt with that. appointment to the second highest The PRESIDING OFFICER (Mr. When you live in the arid West, as I court in the land. HATCH). The Senator from Idaho. and the Senator from Utah do, you I believe he has a bright future in Mr. CRAIG. Mr. President, we are in know how important water is. We find some other setting. I think after prac- a kind of a unique procedure this it, obviously, life-sustaining. And if it ticing law, actually finding out what it evening as we debate three nominees is not managed well, it can create means to represent a client, perhaps who will be voted on tomorrow morn- great conflict or it can change the going into a courtroom someday, ing, obviously, the nomination of Brett whole character of an environment or a maybe sitting down before a judge, Kavanaugh being one of them. But an- State. And certainly for the wildlife of maybe taking a deposition, under- other one that is critical to the United our great States, it is critically impor- standing what it means to file a mo- States and critical to the public lands tant habitat. tion in court, and what that means to domain of our United States and crit- Here in the East, we worry about too go to argue for a hearing, maybe to ical to this western Senator and to the much water. Out in the arid West, we prepare a legal brief, to argue a point western Senator who is presiding at worry about not enough water. And it of view, maybe win a few or lose a few, this moment is the nominee for the is with that kind of experience that the actually go into a courtroom with a new position of Secretary of the Inte- Governor comes to the Secretary’s po- client, pick a jury in a civil case, be a rior. sition to become one of the Nation’s prosecutor in a criminal case, watch as Tonight, I stand to support the nomi- largest water landlords, presiding over the case unfolds before the judge and nation of Governor Dirk Kempthorne the Bureau of Reclamation and all that the jury, watch it go through to ver- of my State of Idaho, who will be con- they do in the Western States and dict, consider whether or not to launch sidered and voted on tomorrow by the across the Nation in the management an appeal—the things I have just de- Senate. I was extremely proud that our of critical water resources and the in- scribed are not extraordinary. President would recognize, as Sec- frastructure that sustains those re- This is the ordinary life of practicing retary Gale Norton stepped down, that sources. attorneys across America. But my life it would be right and appropriate to As a U.S. Senator, both the Presiding experience, as limited as it was in prac- nominate another westerner with the Officer, the Senator from Utah, and I ticing law, included all of these things. kind of experience westerners uniquely served with Governor Kempthorne. He They helped me to understand a judge’s have in the capacity that Governor introduced and won passage of S. 1, the responsibility—a trial court judge, Kempthorne has had to serve not only Unfunded Mandates Reform Act, crit- even an appellate court judge. This is as a U.S. Senator but as a Governor in ical and necessary as we work on legis- like sending Mr. Kavanaugh into a set- a very large public lands State. lation here to make sure we do not im- ting where he has no familiarity and no The Department of Interior, of pact States and create and demand cer- experience. course, is the largest landlord in my tain things from States that are, if you You might say: Well, maybe he will State, as is true in the State of Utah. learn on the job. Maybe he will turn will, demanded but unfunded as a part It is through that experience, and out not only to be a good law student of a Federal jurisdiction or responsi- working with the Federal Government but a heck of a judge. Well, it is not a bility. That is the law of the land and working with the Department of question of trial and error here. It is a today, and it certainly showed his Interior, that I believe Dirk Kemp- question of lifetime appointment. We skills as a legislator. thorne, as our new Secretary of the In- Under the leadership of Governor do not get a makeover on this decision. terior, will do extremely well. If this Senate approves Brett Kempthorne, the Western Governors’ When he came before the Energy and Kavanaugh for the second highest Association developed a 10-year strat- Natural Resources Committee, on court in the Federal judiciary in Amer- egy to increase the health of America’s which I serve, he came with the sup- ica, he is there for life. forests. Out of that collaborative proc- Maybe he will learn on the bench. port, the bipartisan support, of 40 cur- ess, and working with us here, we cre- Maybe he will turn out to be objective rent sitting Governors of the States of ated the Healthy Forests Act, with the on the bench. Maybe he will move away the United States. I am not quite sure guidance and the assistance of the from a solid legal political background I have ever seen that before, that 40 Bush administration, working coopera- to understand the law. Maybe he will Governors—Democratic and Repub- tively with public land timber State have some on-the-job training as a lican—would step up and say, in behalf Senators. judge in the second highest court in of one of their colleagues, that he is It was one of the first major pieces of the land. But is that the best we can qualified and they support him without legislation passed to manage our for- do? Doesn’t that harken back to other condition to become the new Secretary ested lands of the Nation in a right and things in this administration that have of the Interior. Governor Kempthorne appropriate fashion, to restore health- troubled us—people being appointed to developed a close working relationship damaged ecosystems, and to protect positions they clearly were not quali- with these Governors as he served as and promote the collaborative commu- fied for because they were well con- chairman of the National Governors nity effort where community water- nected, they knew the right people? Association just a few years ago. sheds were involved and at risk as a re- That should not be the test for the I have watched Governor Kemp- sult of fire. So I was pleased to work Federal judiciary. It certainly should thorne for two terms, or 8 years in my with the Governor in his capacity at not be the test for the second highest State of Idaho, take very difficult situ- that time as chairman of the Forestry court in the land. ations and sometimes competing sides Subcommittee here in the Senate, and I believe the White House, I believe and bring them together to resolve a we were able to successfully bring that the Republican party, could have done problem and to come out whole and to conclusion. That is the law of the better. There are so many quality smiling in behalf of their interests and land today. judges across America who are Repub- in behalf of the State of Idaho. It is Knowing the West, as I said earlier, licans, in my home State of Illinois and with that kind of style and capacity is critically important to the Secretary in Federal district courts, who could that Governor Kempthorne comes to of the Interior because he is the land- have been nominated for this impor- the position of Secretary of the Inte- lord for much of the western landscape tant and prestigious position. Instead, rior. of our Nation, let alone our crown jew- this nominee falls short. It is no sur- Dirk Kempthorne has successfully re- els, our national parks and all that prise to me that the American Bar As- solved one of the largest tribal water they bring for the citizens of our coun- sociation downgraded his nomination. disputes in Idaho history, if not in the try. I hope if he is approved that in the West—a tribal dispute we dealt with When he was nominated and we had years to come he will prove me wrong. here on the floor, just a year ago, after our first visit, he said: Larry, what

VerDate Mar 15 2010 00:01 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00064 Fmt 4624 Sfmt 0634 E:\2006SENATE\S25MY6.REC S25MY6 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 25, 2006 CONGRESSIONAL RECORD — SENATE S5199 should some of our priorities be? And I his colleagues. He has returned as a first hearing, some of the questions said: You come at a unique time to the nominee to visit with, I believe, nearly were not posed to him in the most civil Department of Interior. Because there all of us to assure us that he will be fashion—and now that he has been re- is no question, in my mind, at least, here to listen and to work with us in ported to the floor by the Judiciary this Senator—and in looking at the his role and responsibility as our new Committee, it is my hope he will soon new energy policy we passed a year ago Secretary of the Interior. have the up-or-down vote he deserves and all that we have done to get this So as an Idahoan and as a U.S. Sen- on the floor of the Senate. Nation to producing energy once ator, I am tremendously proud that our I commend the manner in which again—the Governor is the landlord of President has nominated and we, to- Chairman SPECTER has brought this one of the largest storehouses of en- morrow, will confirm Dirk Kempthorne nomination through the Judiciary ergy in this Nation. as our next Secretary of Interior. Committee and on to the floor. In the The kind of drilling for gas in the I yield the floor. sunshine of the hearing room, it be- Overthrust Belt in the West today that The PRESIDING OFFICER. The Sen- came ever more apparent that there we are now reengaging in, with new en- ator from Utah. are no serious objections to this nomi- vironmental standards, to bring bil- Mr. HATCH. Mr. President, I rise in nation. Brett Kavanaugh is a highly lions of cubic feet of gas on line in the strong support of the confirmation of qualified nominee and a proven public upper Rocky Mountain States, is pre- Brett Kavanaugh to serve on one of the servant. Mr. Kavanaugh’s education, sided over by the Secretary of the Inte- most important courts in our judicial employment history, and record of pub- rior. system, the U.S. Court of Appeals for lic service should speak for themselves. A debate that has gone on here, the District of Columbia Circuit. Brett Brett Kavanaugh is a local guy. He somewhat quietly, on the floor of the Kavanaugh is an extremely bright, went to high school at Georgetown Senate but will take shape in the very hard-working, ethical lawyer. I have Prep in Bethesda, MD, where he was near future dealing with the drilling of known him for many years. educated by the Jesuits. From what I gas down in the Gulf of Mexico, off the His father Ed Kavanaugh served as can tell, he heard the call of St. Igna- coast of Florida, in lease sale 181, once head of a major trade association here tius to be a true man for others. I sus- again, dealing with offshore resources, in Washington for many years, and he pect that many of my colleagues, espe- is in part if not in whole the responsi- is known by my colleagues in Congress cially those Jesuit-educated Members, bility of the Secretary of the Interior. as a straight shooter. In this case, the appreciate that background. The oil shales of Colorado that we apple did not fall far from the tree. He went to Yale University for col- are working to develop now—a lot of it Brett’s mother Martha served for many lege. Having excelled there, he went on on our public lands West—is the re- years as a State court judge in Mont- to Yale Law School, where he was edi- sponsibility of the Bureau of Land gomery County, MD, and I am sure tor of the ‘‘Law Review.’’ That is no Management and the Secretary of Inte- serves as a great model of judicial tem- small achievement. It shows that he rior. perament and jurisprudential excel- was an excellent student, one of the I believe in the next 21⁄2 years Dirk lence and fairness for her son. best. Kempthorne presides over the Depart- Brett Kavanaugh was nominated to He went on to not one but two circuit ment of Interior as the second Sec- the DC Circuit Court of Appeals in July court clerkships. You don’t get those retary of the Interior of this Bush ad- of 2003. That is almost 3 years since he clerkships unless you are one of the ministration, he will, by his presence was nominated. Due in large part to best. A judge really gets to know his and the efforts currently underway, ac- the delay tactics employed by some clerks. They work in close quarters to- tually produce more energy for this earlier this month, Mr. Kavanaugh was gether. The judge has a true oppor- Nation and our Nation’s energy con- the subject of a highly unusual second tunity to get the measure of the man. sumers than will the Secretary of En- hearing on his nomination. Interest- Brett Kavanaugh’s former employers, ergy. It is that kind of uniqueness and ingly, when he was the nominee for the these judges, his mentors, thought so the domain over which he presides that same court, Chief Justice Roberts was much of Brett that they came to Wash- makes this position tremendously im- also subjected to a second hearing be- ington to testify at his confirmation portant. fore the Judiciary Committee. Frank- hearing earlier this month. That is the (Mr. MARTINEZ assumed the Chair.) ly, it may be the case that in each of second confirmation hearing. They did Mr. CRAIG. Lastly, the Governor these two circumstances, the second not mince their words. leaves Idaho with a legacy of growing hearing tells us more about the par- This is what Judge Walter Stapleton, and expanding the Idaho State park tisan nature of the judicial confirma- one of most respected judges in the system that I know he is very proud of, tion process than it reveals about the Third Circuit Court of Appeals, had to as am I. And now he steps into the role qualifications of the nominees. say about his former clerk: of really being the caretaker of all of I might add that in both second hear- I am confident that Mr. Kavanaugh’s per- our National Park System. That is so ings, both of these people, now Chief spectives on both life and the law will result phenomenally important to our coun- Justice Roberts and Brett Kavanaugh, in his becoming what I regard as a ‘‘judge’s came off very well, without one touch- judge.’’ His personal confidence is matched try. by his humility, and his legal acuity by his The parks we have oftentimes called ing by anybody who was trying to do good, common sense judgment. When he the crown jewels of the great outdoors away with them. served as my clerk, no case was too small to of our country. And they truly are I hope that the 14-year time period deserve his rapt attention and, without ex- that. Whether it is Yellowstone in the between Chief Justice Roberts’ first ception, he initiated his evaluation of a case West or whether it is the Great Smok- nomination and confirmation to the with no predilections. His ultimate rec- ies south of us here and slightly to the DC Circuit is not matched or exceeded ommendation resulted from a careful case- west or whether it is down in the Ever- by the Kavanaugh nomination. Since by-case analysis of the facts and an objective glades of Florida—of which the Pre- he was nominated almost 3 years ago, application of the relevant precedents. He is firmly committed to the proposition that siding Officer is so proud of that great Mr. Kavanaugh has become a husband there must be equal justice for all and that park system—Dirk Kempthorne, as and father. Let us pray that he does this can be a reality only if all of our courts Secretary of Interior, will have a tre- not become a grandfather before he faithfully and objectively apply the statu- mendous responsibility over that do- gets a vote in the Senate. tory declarations of Congress and the teach- main. This is a good day because not only ings of the Supreme Court. Tomorrow, we will vote on Governor can we see the light at the end of the That is what I would call a ringing Kempthorne, and he will become the tunnel, but we can actually get endorsement, a refutation of every- next Secretary of the Interior for the through the tunnel and complete ac- thing that has been said by the other Bush administration and for the United tion on this nomination that has lan- side—and by a great judge, by the way, States of America. My guess is that guished for nearly 3 years. Now that who knows a lot about judging and vote will be a resounding vote because Mr. Kavanaugh has once again an- knows a lot about character. when he left here as a Senator, he left swered questions at the unusual second Judge Alex Kozinski on the Ninth in a tremendous state of good will with hearing—and as was the case with his Circuit Court of Appeals had a similar

VerDate Mar 15 2010 00:01 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00065 Fmt 4624 Sfmt 0634 E:\2006SENATE\S25MY6.REC S25MY6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5200 CONGRESSIONAL RECORD — SENATE May 25, 2006 experience during Mr. Kavanaugh’s having been on the court, not having Circuit. Good judges. Are we to believe time with him. This is what he had to argued all kinds of cases. He has. I that those who make these arguments say at his hearing: don’t know what they have been read- also believe that Chief Justice Earl I must tell you that in the times that I had ing, but they sure as heck haven’t been Warren, Justice Hugo Black, and even Brett clerk for me, I found him to be a posi- reading the transcript or don’t know Chief Justice Marshall were somehow tive delight to have in the office. Sure . . . what is going on here. Very few law- lacking because they had not been in- he is really bright, and he is really accom- yers ever argue a case before the Su- volved in politics and had no prior judi- plished, and he is a really excellent lawyer. preme Court. Mr. Kavanaugh has done cial experience? But most, virtually all, folks who qualify for so. I could go on and name a whole a clerkship with a circuit judge these days have those qualities. The vast majority of his legal prac- bunch of other Supreme Court Justices . . . Brett brought something more to the tice has been as a public servant. I re- who never had any prior judicial expe- table. He, first of all, brought what I thought member a time when public service was rience, some of whom are revered as was a breadth of mind and a breadth of vi- applauded and valued, as it should be. the greatest Supreme Court Justices in sion. He didn’t look at the case from just one My colleague from Arizona, Senator history. It is very unfair to use that ar- perspective . . . MCCAIN, should be commended for re- gument, as has been used in countless Brett was very good in changing perspec- minding young men and women how numbers of cases for President Bush’s tive. Sometimes I’d take one position and crucial it is for citizens to transcend he’d take the opposite, and sometimes we’d nominees and, I might add, President switch places. He was very good and very their own immediate needs and wants Reagan’s as well. It was not that long flexible that way. I never sensed any ide- and to serve something larger than ago that the minority leader publicly ology or any agenda. His job was to serve me themselves. That is what Brett urged the President to nominate indi- and to serve the court, and to serve the peo- Kavanaugh has done with his life. Yet viduals with a diversity of experience ple of the United States in achieving the cor- instead of applauding him, some attack rather than just looking to prior judi- rect result at the court. He always did it him. For some, his public service has cial service. Well, Brett Kavanaugh fits with a sense of humor and a sense of gentle become a liability. I wish I was kid- this bill. self-deprecation. ding, but I am not making this up. You His background as staff secretary These are strong words of support have heard it here tonight. Apparently may prove to be particularly good judi- from another great circuit court of ap- some believe Mr. Kavanaugh is just too cial training. In a letter signed by peals judge on the Ninth Circuit Court political. eight individuals who served as either of Appeals which is on the far west of His great, alleged sins were to work counsel or deputy counsel to the Presi- this country. And these words describe for the Office of the Independent Coun- dent, this is how they described that precisely the type of qualities we want sel in the investigation of the White- role he fulfilled: in members of the Federal judiciary. water matter and later to work for The importance of this position, as well as Mr. Kavanaugh went on from those President Bush. Although I think most its substantive nature, is not always well clerkships with these great circuit fair observers would have to say that known or understood outside the White courts of appeal judges to bigger and both of these demanding jobs are pro- House. As Staff Secretary, Mr. Kavanaugh is better things. He worked in the office fessional achievements, some are try- responsible for ensuring that all relevant of the Solicitor General of the United ing unfairly to use political innuendo views are consistently and accurately pre- States. There is hardly any one in this to tar and feather this fine young law- sented to the President. The ability to assess presentations of differing arguments on a body who can claim that experience. yer. But that dog just won’t hunt. He clerked for Supreme Court Justice wide range of topic areas is a skill that As a lawyer in the Office of the Inde- would serve him well on the D.C. Circuit. Anthony Kennedy. Only the best and pendent Counsel, an office created by I concur. I ask unanimous consent brightest lawyers win these types of Democrats in the wake of Watergate, that the full letter be printed in the challenging and prestigious assign- he worked on an investigation initiated RECORD. ments. by a Democratic President and his At- There being no objection, the mate- Mr. Kavanaugh went on to become a torney General. Nobody has ever sug- rial was ordered to be printed in the partner in one of the greatest law firms gested that his work was anything but RECORD, as follows: in the country, Kirkland & Ellis, a professional. He was not a political leading national law firm. That doesn’t partisan. Yet some people are WILEY REIN & FIELDING LLP, happen to somebody who is as de- hyperventilating as though the Presi- Washington, DC, May 5, 2006. scribed by some of my partisan col- Hon. ARLEN SPECTER, dent nominated some partisan hack to Chairman, Committee on the Judiciary, U.S. leagues on the other side. a lifetime position on the Federal Senate, Washington, DC. Brett Kavanaugh left the no doubt fi- bench. I know Brett Kavanaugh. I have DEAR CHAIRMAN SPECTER: We are writing nancially lucrative practice at known him for years. I can tell you, he to offer our strong support for the confirma- Kirkland & Ellis and returned to public will be neither a partisan nor a hack on tion of Brett Kavanaugh to the United service. He is a public servant. For the the bench. He has all the capacities and States Court of Appeals for the D.C. Circuit. last 6 years, he has worked at the qualities to become a great judge. We have each served as Counsel or Deputy White House, first in the White House This false charge of partisanship Counsel to the President, and believe that Counsel’s Office—you don’t get there Mr. Kavanaugh has the qualifications and should be recognized for what it is—an experience necessary for the D.C. Circuit. unless you are really good—and cur- absolute fabrication. You heard what As former Counsel and Deputy Counsel to rently as staff secretary to the Presi- two Federal judges for whom he the President, we understand the importance dent of the United States. Pretty im- clerked had to say about Mr. of judicial appointments, particularly those pressive stuff. Some people say just a Kavanaugh. It doesn’t get much better to the federal courts of appeals. In our view, secretary. Come on, this is a person than that. Mr. Kavanaugh possesses all of the requisite who vets the documents the President Another variation on this attack qualifications for such an appointment, in- sees. It is a person you trust, whom the against Brett is the claim that he does cluding outstanding academic credentials, President trusts. It is a person with not have adequate judicial experience. keen intellect, a calm and thoughtful de- meanor, and exceptional analytical skills. wisdom and decency and magnanimity. We need to put this in perspective. On He has extensive relevant professional expe- Nevertheless, some opponents of this the DC Circuit, only 4 of the 20 judges rience, including arguments before the Su- nomination are suggesting that some- confirmed since President Carter’s preme Court of the United States and the how Mr. Kavanaugh is unqualified to election served previously as judges. federal courts of appeals. serve on the DC circuit. Come on. Then, all of a sudden, it is a bad thing We would also like to emphasize the crit- Let us be clear. Mr. Kavanaugh has because Brett Kavanaugh has not had ical nature of the position that Mr. been practicing law for 16 years. He has experience as a judge. President Clin- Kavanaugh currently holds as Staff Sec- argued civil and criminal matters be- ton nominated and the Senate con- retary. The importance of this position, as well as its substantive nature, is not always fore trial courts, appeals courts, and firmed—this is a Democratic Presi- well known or understood outside the White even the U.S. Supreme Court. I have dent—32 lawyers with no prior judicial House. As Staff Secretary, Mr. Kavanaugh is heard Senators on this floor criticizing experience, including Judges David responsible for ensuring that all relevant him for not having been a judge, not Tatel and Merrick Garland to the DC views are concisely and accurately presented

VerDate Mar 15 2010 00:01 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00066 Fmt 4624 Sfmt 0634 E:\2006SENATE\S25MY6.REC S25MY6 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 25, 2006 CONGRESSIONAL RECORD — SENATE S5201 to the President. The ability to assess pres- been made of that, some calling it a I also looked at every person on the entations of differing arguments on a wide downgrade. Come on. Over the last 3 rating committee for Brett Kavanaugh, range of topic areas is a skill that would years, he received 42 individual ratings and all rated him qualified, and most serve him well on the D.C. Circuit. by members of the American Bar Asso- rated him well qualified, and there Mr. Kavanaugh would be a fair and impar- tial judge, dedicated to the rule of law. He ciation, and all, with no exceptions in were a number who were partisan possesses the highest personal integrity and these 42 ratings, found him—all of Democrats. There is no question about is exactly the type of individual this country them found him qualified for this posi- it, as shown by their schedule of dona- needs on the federal appellate bench. We tion. tions. Maybe that had something to do urge the Senate to act promptly to confirm Some will try to make hay out of his with the downgrading that some on the him to the U.S. Court of Appeals for the D.C. most recent rating. Keep your focus on other side have talked about, even Circuit. the fact that everybody from the ABA though he was found qualified by every Sincerely, who ever evaluated Kavanaugh’s abil- one of those 42 raters. FRED F. FIELDING, ity to serve on the Federal bench found On behalf of: Arthur B. Culvahouse, Jr., I understand that some are sug- him fully qualified to do the job. Some gesting that past battles over par- Peter J. Wallison, Phillip D. Brady, of those doing the rating gave him the Richard A. Hauser, Timothy E. Flani- ticular public policy issues might have gan, David G. Leitch, John P. Schmitz, highest rating of well qualified. Nobody something to do with Wallace’s rating Jay B. Stephens. from the ABA ever found him to be not and also with Kavanaugh’s rating. In qualified to be a Federal judge. There Mr. HATCH. So with few rounds left, practice, it is sometimes hard to see is good reason for that. They would not clearly because the ABA rating system some activist groups opposing this dare do that with a person of his abil- nomination claim that Mr. Kavanaugh generally operates under a principle of ity—although they did in one other anonymity. It is virtually impossible is too young and too inexperienced. It case recently. to find out who said what about whom, really is time for these folks to get a Frankly, I have always been skep- grip. Brett was nominated when he was tical of the ABA ratings. We have had and try to figure out whether it was 39 years of age. Today, as a result of some great committee ratings and fair and objective or with an eye to- several years—actually 3—of delay and some lousy ones. The lousy ones are ward evening up old scores. obstruction, he is 41. All three of the where they allow politics to enter into While the ABA rating system is judges Brett clerked for were nomi- it. Many Democrats consider the rat- murky in some respects, the bottom nated before the age of 39. Justice Ken- ings of the American Bar Association line with respect to the ABA rating of nedy was 38, sitting on the Supreme their gold standard. Whenever the Brett Kavanaugh is that he was rated Court today. Judges Kozinski and Democrats have called something their three times and found qualified by ev- Stapleton were 35 when they were put gold standard, I have found it useful to erybody who rated him each time— on the bench. scratch beneath the surface because even though some of them on the Several of my colleagues on the Judi- you will find that it is only goldplated. present committee are very partisan. ciary Committee were elected in their Nevertheless, the Judiciary Committee Remarkably, some are trying to dis- early thirties. I don’t think they would looks to the evaluations of the Amer- tort Mr. Kavanaugh’s positive ABA allow others to charge that they were ican Bar Association because these rating and recommendation into a neg- too immature for the work. If James evaluations can often provide useful in- ative rating. As Tom Sawyer remarked Madison could be the principal drafter formation. in Huckleberry Finn, you can’t pray a of the Constitution in his midthirties, I I would like to commend the many lie. think a man in his early forties, with men and women of the ABA who volun- This is an important nomination be- 16 years of legal practice, and tough teer their time and energy to compile cause the DC Circuit Court of Appeals legal practice at that, is sufficiently these ratings. These are volunteers. In is such an important court. It reviews mature to serve on the Federal bench. my experience, however, the system is many matters relating to the actions I believe it is clear that most of the not infallible. For example, Judges of powerful Federal agencies. Many of arguments marshaled against Mr. Richard Posner and Frank Easterbrook its decisions will never be reviewed by Kavanaugh are nothing more than a received mixed qualified/not qualified the Supreme Court. combination of hokum and downright ratings when they were nominated by It is important to have judges on the hogwash. So it is not a surprise that President Reagan. This was a great and DC Circuit Court, like Brett the American Bar Association has re- unpleasant surprise to those of us who Kavanaugh, who understand the proper peatedly found him qualified for this were confident they would do excellent role of judges and the judiciary. For position. Let me explain what that work on the bench, and many were con- too long, some Federal judges have means. vinced that those ratings were issued been permitted to run roughshod over After an extensive review, the Amer- for ideological reasons. Today, these the traditions of the American people. My colleague from West Virginia, ican Bar Association gives ratings to two judges are among the most fre- Senator BYRD, recently introduced a all of the President’s judicial nomi- quently cited members of the Federal constitutional amendment that would nees, and the judicial committee fac- judiciary, and their work is widely ad- reestablish the Constitution’s tradi- tors in these ratings when evaluating mired all over the legal profession and tional meaning on school prayer. In re- judicial nominees. A rating of qualified all over the Federal courts. cent years, some Federal judges have means this from the ABA: Just recently, to show you how bad it can get, Michael Wallace, a nominee to taken such a radical view of the Con- The nominee meets the committee’s very stitution’s establishment clause—one high standards with respect to integrity, the Fifth Circuit, seems to have fallen professional competence, and judicial tem- victim to an ideological review process that is not only at odds with the views perament, and that the committee believes by the ABA. He graduated at the top of of the Founders but with the current that the nominee will be able to perform sat- his class at Harvard and went on to the views of a majority of Americans in isfactorily all of the duties and responsibil- Virginia Law School, where he distin- nearly every State—that the Constitu- ities required by the high office of a Federal guished himself. He clerked not only tion’s commitment to the free exercise judge. for the Mississippi Supreme Court but of religion is now endangered. The re- What qualified nominee has dem- also for the late Chief Justice sults of this corrupted constitutional onstrated more professional excel- Rehnquist—positions that the average interpretation were manifest most lence? Brett Kavanaugh has been re- lawyer can only dream about. Yet he prominently in the decision in Santa viewed by the ABA on three separate was given a unanimously not qualified Fe Independent School v. Doe, where occasions. On each occasion, he has rating. I am very curious about the the court determined that a voluntary been found qualified to serve in this po- facts surrounding that rating, and I student-led prayer before a high school sition. Twice he received a rating of suspect that part of that comes from football game somehow violated the majority well qualified, minority the fact that he was chairman of one of Constitution. A voluntary school pray- qualified. In his most recent rating, he the major legal entities in this country er. We should applaud Senator BYRD received a rating of majority qualified and they didn’t like the way he chaired for seeking to reestablish the Constitu- and minority well qualified. Much has it, even though he is a brilliant man. tion’s traditional meaning.

VerDate Mar 15 2010 00:01 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00067 Fmt 4624 Sfmt 0634 E:\2006SENATE\S25MY6.REC S25MY6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5202 CONGRESSIONAL RECORD — SENATE May 25, 2006 The meaning of our constitutional You cannot do better. The man is hon- den, the talents and capabilities of the and statutory laws has been twisted by est, decent, honorable, and will work CIA not only make the difference in some judges on issue after issue. It with all of us in the Senate, not just winning this current war on global ter- happened when the Supreme Court dis- Republicans. And he is from the West. rorism but remain central to facing all covered rights to abortion and later to He understands the problems of Fed- of the challenges that loom before us burn the American flag and completely eral lands. He understands the prob- once this particular conflict is won. overturned the statutes of almost lems that confront the West. He under- We have the very real possibility of every State in the Union—certainly 49 stands the problems of energy. He un- conflicts with Iran and North Korea. of them. It can happen again today, as derstands the problems of the environ- We must face the fact that the day liberal activist groups are urging ment. He understands the problems of may come when we are faced with the judges to promote same-sex marriage national parks. You can go right down threat of armed groups from Latin in State and Federal courts. That is the list. America. another illustration. This man has tremendous experience What the CIA does today, if the les- Our judges must show a proper re- and has been a wonderful Governor of sons and experience it gathers from its spect for the Constitution. The Con- Idaho, our neighboring State. He and contributions are conveyed to its new stitution is not owned by the courts or his wife are two of the best people I cadres, will play a key role in man- controlled by judges. No less than know. I hope everybody will vote aging the conflicts of tomorrow. Let’s judges, Members of this body take an unanimously in his favor tomorrow, or hope none of these potential conflicts oath to support the Constitution. The whenever we have that vote. become such, and I really don’t believe judiciary is a creature of the people NOMINATION OF MICHAEL V. HAYDEN we need to allow them to become such. and their Constitution, and the judici- Finally, I thank the leadership for Reform of the intelligence commu- ary should not be a forum for wholesale expeditiously scheduling the confirma- nity, in which the CIA has and should social changes initiated by special in- tion vote for General Michael V. Hay- maintain a central position, is already terest groups and opposed by ordinary den of the U.S. Air Force to be Director well underway, in part due to the cre- Americans. of the Central Intelligence Agency. In ation of the Office of the Director of I have no doubt that Brett particular, I thank Intelligence Com- National Intelligence and also due to Kavanaugh understands that funda- mittee Chairman ROBERTS for orga- the oversight by the Senate Intel- mental distinction between judging nizing the open and closed hearings ligence Committee in insisting that and lawmaking. Let me read for the last week before our committee. The the flaws in the intelligence process we committee has a heavy work schedule, record what was said by Neal Katyal, a have revealed be redressed. but nothing should be more important Georgetown University Law Center The DNI was created to coordinate than moving forward an important professor, former attorney to Vice the elements of the community, as well nomination like this one. as to advance a reform agenda for the President Gore, and former Clinton ad- I also recognize the work of my other ministration official. Let me read his community as a whole, and in each of colleague, Senator WARNER, for expe- expressed strong support for Mr. its elements. diting this nomination through his Reform, particularly in time of war, Kavanaugh. He says: committee. Air Force GEN Michael I do not believe it appropriate to write to is never easy, and it is much more com- Hayden has spent his life in the service plicated than creating a new bureau- you unless I feel strongly about a particular of our great country. I honor his dedi- nominee. I feel strongly now: Brett cratic structure. It requires creating a cation. He has honored us with his Kavanaugh should be confirmed to the new culture that brings a common, United States Court of Appeals for the DC dedication. professional set of doctrines and values In my opinion, he brought enormous Circuit. . . . Mr. Kavanaugh would be a wel- to all components of the community distinction to the uniform he wears, come, terrific addition to the United States that builds on the extraordinary capa- and his contributions have served the Court of Appeals. bilities that exist, while assembling He didn’t allow his own partisan feel- security of this Nation, particularly since the attacks of 9/11. They have new hybrid excellencies within an enti- ings to be interjected into this very im- ty whose effectiveness must become portant decision of whom we should made a profound difference in our abil- ity to defend ourselves in a war unlike greater than the sum of its parts. support for the court. General Hayden comported himself I am fully supportive of Brett any we have been forced to fight. He was before us last year, and he is with great probity in his confirmation Kavanaugh’s nomination. I look for- hearing last week and rendered honest ward to his long career on the bench. I well known to this body. When last we saw him, he was to become the first and detailed answers to a great range urge my colleagues to give his nomina- of questions in both the open hearing tion the support it deserves. deputy of an organization formed by the Congress, the Office of the Director and in the executive hearing. The gen- NOMINATION OF DIRK KEMPTHORNE of National Intelligence. In the legisla- eral’s lifetime experience has prepared Mr. President, having spoken about tion that created this office, we tasked him for taking this post, and I have the Mr. Kavanaugh, I wish to take a it and its first officeholders with the highest regard for him. minute or two to speak about my enormous job of weaving together the I might add that one of the first deci- friend, Dirk Kempthorne, who will be disparate but impressive elements of sions that he will have made will be voted upon tomorrow, as I understand the American intelligence community. choosing Mr. Kappas to be his Deputy. it, as well. Our concept was to create a whole that I have been checking with many lead- Dirk Kempthorne served with us in would be greater than the sum of its ers in the CIA and elsewhere, and they the Senate. I have been here for 30 parts, but we left the work in the hands say Mr. Kappas is an outstanding per- years, and I have to say that he was of the first Director, Ambassador son who can help bring about an esprit one of the finest people with whom I Negroponte, and his deputy, the man de corps that may be lacking. have ever served. He was decent, honor- whom the President now nominated to Having said all this, I want to praise able, and hard-working. He was a per- head the CIA. Director Goss. I served with Porter son who was honest. This is a man who As a longtime military officer, as one Goss when he was chairman of the In- became a great Governor. He did a who spent most of his life as an intel- telligence Committee in the House. He great job while he was here. He was ligence consumer and a distinct part of is a wonderful man. He did a great job only here a short time in the Senate, his life in both the human and tech- in helping to change some of the but it was long enough for those of us nical practices of intelligence, and now mindsets at the CIA. He made a very who knew him to establish in our as an architect of the new intelligence distinct imprint on the CIA for good, minds and in our experience the fact structure, General Hayden is an indi- and we will miss him as well. But it that he was and is a great human vidual exceptionally prepared to take should not be construed that General being. on the responsibility of transforming Hayden is replacing him because he He is nominated now for Secretary of the CIA. didn’t do the job. Porter said he wasn’t the Interior, and I hope everybody in It is my hope and expectation that, going to stay there an excessively long this body will vote for him tomorrow. under the leadership of General Hay- time.

VerDate Mar 15 2010 00:01 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00068 Fmt 4624 Sfmt 0634 E:\2006SENATE\S25MY6.REC S25MY6 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 25, 2006 CONGRESSIONAL RECORD — SENATE S5203 I have to say that I believe that as enough time to ask any question they When General Hayden takes the helm great as Porter Goss is and was, Gen- wanted or to express any concern they at the Agency, he is going to find a eral Hayden will be a good replace- had on their mind in regards to this number of issues that will demand his ment. He is one of the best people who nomination and the qualifications of attention. These are the same issues has ever served this country. He has this man. I think we accomplished that we touched on and asked the gen- spent a lifetime in intelligence. He is that. We gave every Senator 20 minutes eral to respond to during his confirma- one of the few people who really under- and then another 20 minutes, and then tion hearings. stands it all, and he is a straight shoot- in a regular order, additional time. First, he must continue to improve er. He tells the truth; he tells it the I might add, Senator WYDEN cer- the Agency’s ability to provide public way it is. He is an exceptionally de- tainly took advantage of that. After policymakers with high-quality ana- cent, honorable man, and his wife is a over 8 hours, the general, the chair- lytic products. very honorable and good person as man, and other members of the com- The Senate Intelligence Committee’s well, as are his children. mittee finally concluded. July 2004 report on intelligence related So I hope all of us will consider vot- I think it was a good hearing. I think to Iraq’s WMD programs did conclude ing for General Hayden. He is worth it. it was a good open hearing and a good that the agencies of the intelligence We should vote for him. We should be closed hearing. General Hayden cer- community did not explain to policy- unanimous in the selection of a CIA Di- tainly distinguished himself, and he makers the uncertainties behind their rector, but even if we are not, I hope showed the committee that he will be Iraq WMD assessments. the overwhelming number of Senators an outstanding choice for CIA Director. Analysts must also observe what I General Hayden entered active duty, will vote for this great general, this refer to as the golden rule of intel- in terms of background, with the U.S. great intelligence officer, this great ligence analysis, and we asked this spe- Air Force in 1969 after earning both his person who we all know is honest, de- cifically of the general: Tell me what bachelor’s and master’s degree from cent, and capable. you know, tell me what you don’t Duquesne University in his hometown Mr. President, I yield the floor. know, tell me what you think and, The PRESIDING OFFICER. The Sen- of Pittsburgh. most importantly, make sure that we He has had a lengthy and diverse ca- ator from Oregon. understand the difference. reer. He has served as Commander of Mr. WYDEN. Mr. President, I have It will be up to General Hayden to the Air Intelligence Agency and as Di- been waiting some time to talk about ensure that the CIA analysts adhere to rector of the Joint Command and Con- General Hayden. I note the presence of this rule in the future. trol Warfare Center. He has been as- Second, General Hayden must im- the distinguished chairman of our com- signed to senior staff positions at the prove the CIA’s ability to collect what mittee, a committee on which I am Pentagon, at the headquarters of the we call humane intelligence. He can proud to serve. Given the fact we are U.S. European Command, the National begin by ensuring that the Agency is starting a discussion of General Hay- Security Council, and at the U.S. Em- more aggressive in its efforts to pene- den to head the Central Intelligence bassy in the People’s Republic of Bul- trate hard targets and in the use of Agency, I ask unanimous consent that garia. General Hayden has also served very innovative collection platforms. Chairman ROBERTS be allowed to speak as the Deputy Chief of Staff for the Third, General Hayden, it seems to at this time and that I be able to follow United Nations Command and U.S. me, must improve information access— the chairman after he has completed Forces in Korea and, more impor- not information sharing, information his remarks. tantly, he has served most recently at access. There is a big difference. We on The PRESIDING OFFICER. Without the highest levels of the intelligence the Intelligence Committee will look objection, it is so ordered. community. From 1999 to 2005, General to the general to ensure that appro- The Senator from Kansas. Hayden was Director of the National priately cleared analysts community- Mr. ROBERTS. Mr. President, I Security Agency. wide, with a need to know and the thank the Senator from Oregon for al- Finally, in April of last year, fol- proper training have access to the lowing me to go first as chairman of lowing intelligence reform and a great CIA’s intelligence information in its the committee. Senator WYDEN is a deal of committee action in regards to earliest form, while at the same time very valued member of the committee the Intelligence Committee to deter- protecting sensitive sources and meth- with very strong and independent mine the accuracy of our 2002 NIE, Na- ods. views but has always contributed in a tional Intelligence Estimate, and then No doubt the general will face a num- bipartisan way on behalf of our na- we went through intelligence reform, ber of significant tasks, but based on tional security. we had the 9/11 Commission, we had the his record as a manager, his qualifica- Good evening, Mr. President. The WMD Commission appointed by the tions, and his demonstrated leadership, hour is a little late. Actually, the night President, he was unanimously con- I believe he is the right choice to lead is young, but I am not. Nevertheless, I firmed by this body to serve in his cur- the CIA. The Senate should expedi- am going to try to be pertinent on a rent position as the Principal Deputy tiously confirm him and let him get to matter that is of real importance, and Director of National Intelligence. He work over at Langley. that is, in fact, the nomination and had that kind of background, had that Mr. President, I strongly support the hopefully what we expect to be the con- kind of expertise, had that kind of ex- nominee, and I urge my colleagues to firmation of GEN Michael V. Hayden to perience. do the same. serve as Director of the Central Intel- Given his experience at NSA and the I yield the floor. ligence Agency. Office of the Director of Intelligence, I The PRESIDING OFFICER. The Sen- As chairman of the Select Committee don’t think there is any question Gen- ator from Oregon. on Intelligence, I rise tonight and asso- eral Hayden is well known to the Intel- Mr. WYDEN. Mr. President, I am ciate myself with the remarks made by ligence Committee. He has briefed us next in line, but I understand the ma- Senator HATCH, who is another very many times. I don’t know of anybody jority leader and the distinguished valued member of the committee, in in any hearing or briefing who has done Senator from Nevada wish to have a strong support of the nomination of any better. It is because of his quali- brief colloquy. I will defer to them and General Hayden to be the next Director fications and my experience working pick up when they are finished. of the Central Intelligence Agency. with him that I support his nomina- The PRESIDING OFFICER. The ma- He is eminently qualified for this po- tion. jority leader is recognized. sition. He is a distinguished public This nomination comes before the Mr. FRIST. Mr. President, I ask servant, as has been noted, who has Senate at a very crucial time. We are a unanimous consent that during this given more than 35 years of service to nation fighting a war in which the in- evening’s session, it be in order for his country. telligence community is on the front Senators to speak in executive session Senator HATCH referred to our hear- lines. The CIA is an integral and very on the Kavanaugh nomination No. 632, ings both open and closed that we held vital part of the intelligence commu- or the Hayden nomination No. 672; pro- last week. It was my goal as chairman nity. We need strong leadership in vided further, that following disposi- to ensure that every Senator had order to protect our national security. tion of the Kavanaugh nomination, the

VerDate Mar 15 2010 00:01 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00069 Fmt 4624 Sfmt 0634 E:\2006SENATE\S25MY6.REC S25MY6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5204 CONGRESSIONAL RECORD — SENATE May 25, 2006 Senate proceed to a vote on the Hayden The White House hopes voters will see the discussions the two of us have had, and nomination No. 672; further, if No. 672 warrantless surveillance program Hayden he has always been extremely easy to is confirmed, then the Senate imme- started as head of the National Security talk to. diately proceed to a vote on the con- Agency as tough on terrorism rather than a But since I last voted for him, infor- violation of civil liberties. firmation of Calendar No. 693; I further mation has come to light that has ask unanimous consent that following I believe the American people deserve raised serious questions about whether those votes, Senator NELSON of Florida better than the White House agenda of the General is the right person to lead be recognized to speak up to 5 minutes, false choices. I believe one can fight the CIA. There are serious questions and the Senate then proceed to a clo- the terrorists ferociously and protect about whether the General will con- ture vote with respect to Executive the liberties of law-abiding Americans. tinue to be an administration cheer- Calendar No. 630, Dirk Kempthorne to I believe the Senate should not be leader; serious questions regarding his be Secretary of the Interior; provided bullied into thinking that security and credibility; serious questions about his further, that if cloture is invoked, Sen- liberty are mutually exclusive, and I understanding of and respect for con- ator LANDRIEU be recognized for up to believe that millions of Americans stitutional checks and balances, and 10 minutes, and the Senate then pro- share that view. From the days of Ben the important accountability in Gov- ceed to an immediate vote on the con- Franklin, security and liberty in Amer- ernment that they create. firmation of the nomination of Dirk ica have been mutually reinforcing, Here are the facts: Last December, Kempthorne. and it is our job to maintain this sa- the New York Times reported that The PRESIDING OFFICER. Without cred balance. since 9/11, the National Security Agen- objection, it is so ordered. This is harder to do now because cy, which General Hayden was in Mr. FRIST. Mr. President, what all across America there is less trust and charge of at the time, initiated a this means is that by this agreement, there is more fear. The lack of trust warrantless wiretapping program. Gen- we will allow Senators to speak to- has been fed by the Bush administra- eral Hayden, reported once more in the night on either the Kavanaugh nomina- tion telling the public that they have media to be the architect of the pro- tion or the Hayden nomination. We struck the right balance between secu- gram, became the main public spokes- will convene tomorrow morning at 8:45. rity and liberty, but then we have had person in its defense. At a White House It is our hope that we will be able to one media report after another that press conference in December of 2005 vote on the confirmation of the contradicts that claim. and at subsequent events, including a Kavanaugh nomination after con- When the media reports come out, speech at the National Press Club this vening. We will then proceed to the the administration says it can’t say past January, the General vigorously votes on the Hayden nomination and anything because responding would defended the administration’s the cloture vote on the Kempthorne help the terrorists, but then the admin- warrantless wiretapping program. Even before the war in Iraq, I was nomination. Senators, therefore, can istration responds in multiple forums concerned about politicizing intel- expect three early rollcall votes during to get out the small shards of informa- ligence. Since then, I think they are Friday’s session. tion that they believe is helpful to The PRESIDING OFFICER. The Sen- their point of view. only additional grounds for concern. At his confirmation hearing, General ator from Oregon. The increased fear among our people Mr. WYDEN. Mr. President, before he is nourished by the fact that there are Hayden said he wants to get the CIA out of the news. To me, this was a curi- leaves the Chamber, I simply wish to no independent checks on the Govern- ous statement, given all the time he say to the distinguished chairman of ment’s conduct, as there have been for has spent on the bully pulpit defending our committee that I thank him for his more than 200 years in America. Law- the President’s warrantless wire- kind and gracious introductory re- abiding Americans have no reason to tapping program. Inevitably, any polit- marks to me. As he knows, sometimes be confident that anyone is independ- ical appointee will have an allegiance we agree, as we did in the effort to ently verifying reports about the ad- to the White House that appointed him make public the CIA inspector gen- ministration’s reported surveillance of or her. But when it comes to positions eral’s report on 9/11. I appreciated their personal phone calls, e-mails, and in the intelligence community, I be- working with the distinguished chair- Internet use. lieve that this allegiance, regardless of All of this mistrust and fear has man on that matter. Sometimes we whether a Republican or a Democrat is translated into a lack of credibility. disagree, as we do tonight with respect in the White House, should go only so The administration has given us, by to the nomination of General Hayden, far. but Chairman ROBERTS has always words and deeds, a national security It is not good for our great country been courteous and fair in our com- routine: Do one thing, say another. to have a CIA Director who jumps into mittee and essentially to every mem- An absolute prerequisite to running every political debate that comes up ber. I thank him for that as he leaves intelligence programs successfully is here in Washington, D.C. It is not good the Chamber tonight. Clearly, Chair- credibility. Despite the scores of tal- for our great country to have a CIA Di- man ROBERTS and Senator HATCH, two ented, dedicated, patriotic people rector who willingly serves as an ad- distinguished members of our Intel- working at Langley today, the failings ministration cheerleader. It is not good ligence Committee, want no part of it, of the Agency’s recent leadership have for our great country to have a CIA Di- but there are those who want to turn left the Agency’s credibility dimin- rector who gets trotted out again and the Hayden nomination into a ref- ished. again and again to publicly argue for erendum on who is toughest on ter- The Agency is now looking at the the President’s controversial decisions. rorism, Republicans or Democrats. prospect of its fourth Director since Politicizing the position renders the These people do America a disservice. I 9/11. The last Director brought par- CIA Director less effective and less know of no Senator who sympathizes tisanship and lost talented professional credible. with a terrorist. I know of no Senator staff as a result. The Agency’s No. 3 Inevitably, Americans will begin to who wishes to coddle al-Qaida. I know man, who resigned this month, is being see the Director as an administration of no Senator who is anything other investigated by the FBI for links to the defender rather than a conveyor of the than a patriot. bribing of a former Congressman. It is unvarnished truth. And in our next CIA Unfortunately, this nomination is long past time to get it right at the Director, we need more truth and we being used to divide the Senate and the CIA. need less varnish. American people on the issue of ter- This will be the second time I have My second concern rises out of the rorism. Just this past Monday, the voted on a Hayden nomination. The first. Not only has General Hayden Washington Post newspaper reported first time around, when he was nomi- raised questions through his words and that the White House: nated to serve as Deputy National In- actions about politicizing intelligence, Seems eager for a battle over the nomina- telligence Director, I voted for the but, unfortunately, even when he says tion of Air Force GEN Michael V. Hayden as General. In my view, General Hayden’s something, you cannot trust, based on CIA Director. technical knowledge is not in question. his words, that what he says is cred- The article goes on to say: He has always been personable in any ible.

VerDate Mar 15 2010 00:01 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00070 Fmt 4624 Sfmt 0634 E:\2006SENATE\S25MY6.REC S25MY6 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 25, 2006 CONGRESSIONAL RECORD — SENATE S5205 At the National Press Club speech he sponse. At best, I got a nonanswer that brief members of the Senate Intel- gave in January defending the NSA reflected the General’s skill in verbal ligence Committee on the activities of warrantless wiretapping program, the gymnastics, but not the type of candor the CIA, and when they will be learn- General repeatedly stated that the pro- that America needs in its next CIA Di- ing about them by reading the morning gram was limited to international to rector. newspaper. domestic, or domestic to international There is another example that I want As I stated, the CIA is looking at the calls. For instance, he said: to talk briefly about, Mr. President. prospect of its fourth Director in this There is always a balancing between secu- When General Hayden came before the dangerous post-9/11 world. Serious re- rity and liberty. We understand that this is Senate Intelligence Committee last form is needed to get the Central Intel- a more—I’ll use the word ‘‘aggressive’’—pro- year in conjunction with his nomina- ligence Agency headed in the right di- gram than would be traditionally available tion to serve as a deputy to Ambas- rection. To make this happen, America under FISA. It is also less intrusive. It deals sador Negroponte, I asked him about needs a CIA Director who says what he only with international calls. the NSA Trailblazer Program. This had means and means what he says. Unfor- Later, General Hayden said: been one of the General’s signature tunately, time and time again, General That is why I mentioned earlier that the NSA management initiatives, one that Hayden has demonstrated a propensity program is less intrusive. It deals only with had been again reported as one de- for neither. His words and acts on one international calls. signed to modernize the Agency’s infor- occasion cannot be reconciled with He explained: mation technology infrastructure. In words and acts on another. He is a man The intrusion into privacy—the intrusion response to my questions—I want to be with a reputation for taking com- into privacy is significantly less. It is only specific about this because there has plicated questions and giving simple international calls. been a lot of discussion about it— answers. He added: among a variety of other comments the Unfortunately and repeatedly, when I We are talking about here communications General made about the Trailblazer have asked him simple questions, he we have every reason to believe are al-Qaida Program, at page 44 of the transcript of has given me complicated answers, or communications, one end of which is in the that 2005 hearing that was held to ap- nothing at all. United States. prove General Hayden to be the deputy Americans want to believe that their At the conclusion of the Press Club to Mr. Negroponte, the General said Government is doing everything it can address, he was asked by a reporter: with respect to the Trailblazer Pro- to fight terrorism ferociously and to Can you assure us that all of these inter- gram: protect the legal rights and civil lib- cepts had an international component, and A personal view, now—looking back—we erties of law-abiding Americans. But that at no time were any of the intercepts overachieved. right now millions of Americans are purely domestic? Now, I cannot go into detail here on having trouble locating the checks and The General said: the Senate floor because of the classi- balances on Executive power. They The authorization given to NSA by the fied nature of the information in- don’t know what the truth is and they President requires that one end of the com- volved, but suffice it to say today the are very concerned about what is next. munications has to be outside the United press is reporting that the program is I believe it is time for the Senate to States. I can assure you by the physics of the belly-up and the press is reporting that break that cycle. I remain concerned intercept, by how we actually conduct our it is a billion dollars worth of junk that what has happened at the Na- activities, that one end of these communica- software. tional Security Agency under General tions are always outside the United States of I take my constitutional responsi- Hayden will be replicated at the Cen- America. bility to give advice and consent to the tral Intelligence Agency. For that rea- With those final words, the speech President’s nominations very seri- son, I oppose the nomination. and the press conference concluded. ously. Last Monday, after the hearing, I yield the floor. But then, just weeks ago, Americans I did something that I do not custom- The PRESIDING OFFICER (Mr. read in the USA Today newspaper that arily do. I reached out to the general DEMINT). The Senator from Illinois. the NSA, according to the paper, was once more in an effort to try to find Mr. DURBIN. Mr. President, let me also gathering basic information con- grounds for supporting his nomination. commend my colleague from the State cerning hundreds of millions of inno- In my office I asked that he keep the of Oregon, a member of the Senate In- cent Americans’ domestic phone calls. Senate Intelligence Committee fully telligence Committee, a committee on I cannot confirm or deny what was in and currently informed of all intel- which I served for 4 years. Senator that article, but I can tell you when I ligence activities other than covert ac- WYDEN’s statement is consistent with opened the paper that morning and tions. his service on that committee. It shows read the article, it raised serious con- In writing, the general responded: that he takes that assignment very se- cerns for me about whether the Gen- Regarding communications with Congress riously, he does his homework on a eral had been misleading. on critical issues, if confirmed as Director of very challenging committee assign- Unfortunately, this is not a single in- the Central Intelligence Agency I intend to ment, and that he has given great cident in an otherwise perfect record. have an open and complete dialog with the thought and reflection to this impor- There is a pattern of saying one thing full membership of the committee, as indi- tant decision about whether General and doing another when it comes to the cated by 501(C) 502 and 503 of the National Hayden should be named to head the Security Act as amended. General. For instance, General Hayden CIA. said he received legal authority to tap So far, so good. But then the general Senator WYDEN and I have discussed Americans’ phone calls without a war- added: this nomination. There are some things rant in 2001. A year later, in 2002, the As you understand, there will continue to he cannot share with me because they General testified before Congress’s be very sensitive intelligence activities and were learned behind closed doors in the operations such as covert actions that, con- joint 9/11 inquiry that he had no au- sistent with legislative history and long- Senate Intelligence Committee, but I thority to listen to Americans’ phone standing practice, is briefed only to leader- have become convinced, as well, that calls in the United States without first ship of the committee. On those rare occa- General Hayden, despite his many obtaining enough evidence for a war- sions, communications with those Members great attributes and good qualifica- rant. As conceded by the General him- will be exhaustive. tions, is not the right person for this self, at the time he made these state- So once again the bottom line, Gen- appointment. ments to Congress, the NSA was in fact eral Hayden’s response is ambiguous. If When we reflect on America since doing the very thing he led us to be- confirmed he intends to sometimes in- 9/11, there are many things that are lieve it could not: engaging in form Congress and at other times only very clear. First, this country was warrantless wiretapping on persons inform certain Members, without ex- stricken in a way that it has never here in our country. plaining how this will be decided or been stricken since the War of 1812, When I asked the General to explain what his role in the decision will be. when the British invaded the United these contradictions at his confirma- Read his response from Monday and States, invaded this Capitol building, tion hearing, I didn’t get much of a re- you still can’t determine when he will sacked and burned it. We found 3,000 in-

VerDate Mar 15 2010 00:01 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00071 Fmt 4624 Sfmt 0634 E:\2006SENATE\S25MY6.REC S25MY6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5206 CONGRESSIONAL RECORD — SENATE May 25, 2006 nocent Americans destroyed on Amer- agencies of the United States to tell us cific assignments accepted by the Sen- ican soil—a gut-wrenching experience what they know so we can gather infor- ate Intelligence Committee. I served on that we will never forget. It changed mation from every source and make a the committee while we were in the America and it called on the President, conscious and sensible judgment about process of meeting that obligation. We on the leadership in Congress, to sum- what we should do. It is called a Na- came to learn the first assignment was mon the courage to respond. tional Intelligence Estimate, an NIE. exactly right. The Senate Intelligence In the days that followed that hor- So at my staffer’s prompting, I re- Committee concluded, as did the rible event, there were some inspiring quested a National Intelligence Esti- House, that our intelligence agencies images. We can recall the videotape of mate, as did Senator GRAHAM of Flor- had failed us. Our first line of defense firefighters ascending the stairway ida. It turned out it was routine to had failed us, giving us information into the World Trade Center, to certain produce them, but no one had taken that was totally flawed, information death, braving what they knew was a the time to do that before the invasion which was not reliable, information terrible disaster to try to save inno- of Iraq. which never should have resulted in cent lives. In very short order, just a few weeks, the invasion of Iraq. We can recall the President of the a National Intelligence Estimate was The administration had argued that United States going to the rubble of submitted to the Intelligence Com- we have a new foreign policy, a pre- the World Trade Center in New York mittee. There were claims in that NIE emptive foreign policy. We can’t wait and in a few brief moments rallying that turned out to be false, but at the to be attacked, the President said, we America and the world behind our time we didn’t know it. There were have to attack first if there is a threat. cause. claims about weapons of mass destruc- It turns out the information used to We can remember Members of Con- tion that threatened the safety of the measure that threat was wrong, in the gress standing just a few feet away United States of America. There were invasion of Iraq. from this Senate Chamber, Members of claims of capacities and capabilities by Mr. President, 23 of us in the Senate Congress who hours before had been Saddam Hussein in Iraq that were voted against the use of force in Iraq, locked in partisan combat, who put it greatly exaggerated. There were claims 22 Democrats and 1 Republican. We be- all aside after 9/11, sang ‘‘God Bless that Saddam Hussein and the Iraqis lieved then, most of us, that the infor- America,’’ and said: What can we do to were producing nuclear weapons which mation being given to the American save America? could be used against the United people was misleading, the intelligence After that, the response around the States. Leaders in the White House information was not accurate. world; this great, giant, the United were telling us they were fearful of It turns out that our estimate was States of America, having suffered this mushroom clouds that could result in a true. It turns out that our invasion of terrible loss, was able to count its nuclear holocaust. All of this was given Iraq was based on false pretenses and friends and allies very quickly. So to the American people and the Intel- on intelligence information that was many nations stepped forward and said: ligence Committee. fatally flawed. We are with you. We will help you. We The sad reality was when we sat in The second investigation to be under- understand that you must bury your the Intelligence Committee behind taken by the Senate Intelligence Com- dead and grieve your losses, but then closed doors, we knew that the Amer- mittee, promised more than 2 years you must defend yourself and your Na- ican people were not getting the full ago, was that we would look into the tion for its future, and we will be there. story, that in fact even within this ad- misuse of this intelligence by members It was an amazing outpouring of sup- ministration there was a dispute as to of this administration. That is a tough port for our great country. It was a the truth of these statements, state- thing to ask a Senate Intelligence wonderful, encouraging moment. ments given every day and every night Committee, led by a Republican chair- The President came to this Congress by the leaders of this administration. man, to do, because it is likely to bring and gave a speech shortly after 9/11 We know what happened. We invaded some embarrassment to the adminis- that I will say was one of the best I had Iraq. Saddam Hussein, in a matter of tration of the President. ever heard, summoning us to gather to- weeks, was gone as their dictator, and Unfortunately, as I stand here today, gether as a nation to defend ourselves we came to learn that all of the claims the promise of almost 2 years ago to against this threat of terrorism. Then, about weapons of mass destruction complete this second phase has not of course, we considered the PATRIOT were false, totally false. The American been completed. We still don’t know if Act. We changed the laws of America people had been misled. members of this administration mis- so our Government would have new There is nothing worse in a democ- used the intelligence. tools to pursue the terrorists. It passed racy than to mislead the people into But there are things that we do with an overwhelming bipartisan vote, war, and that is what happened. We know, things that are very clear. It is very quickly, and we started to roll up learned, as well, that there were no nu- clear that in the lead-up to the inva- our sleeves and take on this task. clear weapons. All those who claim sion of Iraq and afterwards there was a At the time I was a member of the there was a connection between 9/11 separate intelligence agency created in Senate Intelligence Committee. I real- and Saddam Hussein could find no evi- the Department of Defense by a man ized then more than ever how impor- dence. The statements made by the named Douglas Feith that became vir- tant that committee was. Intelligence President in his State of the Union Ad- tually a renegade, independent oper- is the first line of defense, and good in- dress that somehow or another Saddam ation. It was not working in concert telligence used wisely can protect Hussein was obtaining yellowcake or with other agencies of our Government America from terrorism and from en- the makings of nuclear weapons from gathering intelligence. That is incon- emies who would inflict great casual- Africa turned out to be false, and the sistent with what we hoped to be a co- ties and pain on us. President had to concede that point. ordinated intelligence effort in our Then, a few months later, came a Then, in light of it, we decided it was Government. But Secretary Rumsfeld, new challenge, a challenge we had not time to take a look. The Intelligence who enjoyed the confidence of the anticipated on 9/11. The President and Committee on which I served decided President, was able to initiate this in- this administration told us that the to ask two questions: First, did our in- telligence operation in defiance of real battle was against Saddam Hus- telligence agencies fail us? Did they many other intelligence agencies. We sein in Iraq. I remember sitting in that come up with bad information when know that for a fact. Senate Intelligence Committee just they should have given us good infor- Then we came to learn several other days before the vote on the Senate mation and good advice? Were we, in things. We learned that after 9/11, the floor about the invasion of Iraq and fact, misled into this war by that infor- Bush administration, for the first time turning to a staffer who said to me: mation? And second: Did any member in modern history, decided that they Senator, something is unusual here. of this administration misuse that in- needed to rewrite the standards of in- This is the first time we have ever con- telligence information, use it in a fash- terrogation for detainees. For decades sidered any kind of effort of this mag- ion that did mislead or deceive the we had held to the standard of the Ge- nitude without asking the intelligence American people? Those were two spe- neva code, which basically said that we

VerDate Mar 15 2010 00:01 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00072 Fmt 4624 Sfmt 0634 E:\2006SENATE\S25MY6.REC S25MY6 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 25, 2006 CONGRESSIONAL RECORD — SENATE S5207 would not engage in torture, cruel, in- warrantless wiretapping of American torture, cruel, inhuman and degrading human, or degrading treatment. But citizens. treatment. I believe that we should the infamous Bybee memo, exchanged Second, I am concerned about how never engage in that treatment—and at the time with Alberto Gonzales, the CIA will treat detainees in their that is what the McCain amendment then-White House Counsel, and many custody and how they will implement requires. Senator MCCAIN said it well others, was at least a suggestion that the clear prohibition on torture and last year, and I quote him. He said, we could breach those rules and change cruel, inhuman, or degrading treat- ‘‘It’s not about who they are. It’s about those rules. That conversation, in ment standard that was passed last who we are.’’ closed sections of the White House, year in the McCain amendment, which I believe we should have one clear, took place without the knowledge of I cosponsored, by a vote of 90–9 on the uniform interrogation standard that the American people. But then the ter- floor of the U.S. Senate. applies to all United States personnel— rible disclosure at Abu Ghraib torture, I am also concerned about the issue those in uniform and those in a civilian inhuman treatment perpetrated, sadly, of the General’s independence, not capacity. by those who were in the service of the merely his independence as an indi- I was disturbed when General Hayden United States. vidual but his ability to stand up to was meeting with me and did not ap- It was clear then that the issue of the Department of Defense and the pear to share that view. He was eva- torture was one that was front and cen- likes of Secretary Rumsfeld, and sepa- sive. While he said that we must estab- ter for us as a Nation to face during rate defense intelligence operations lish clear guidelines, he indicated he this time of terror. So with this tor- under Douglas Feith. I raised these might prefer to have one standard for ture issue before us, we also had other concerns when I met with General Hay- the military and another standard for things to consider. den, and they we were echoed by many intelligence personnel. He said he Not long thereafter came the news members of the committee during the wanted to study the question, but that that this administration was engaging hearings. two sets of rules might be appropriate. in activities which clearly were beyond First, I would like to address the I disagree. There is only one stand- the law—the so-called warrantless issue of surveillance of American citi- ard. It should be clear and unequivocal. wiretaps of Americans. You see, under zens. Finally, there is the question of inde- the laws of the United States and As Director of the NSA, General Hay- pendence. The Pentagon controls an es- under our Constitution, one cannot in- den presided over a program that car- timated 80 percent of the intelligence vade through a wiretap the privacy of ried out warrantless wiretaps on inno- budget. That fact alone makes it crit- another without court approval. No ex- cent Americans. Those wiretaps did not ical for the CIA to vigorously defend ecutive branch office, Department of have judicial approval, nor did they its independence over the Department Justice, or FBI can engage in a wiretap have meaningful congressional over- of Defense. We need an independent without the approval of a court order sight. Precious few Members of Con- voice at the CIA. or, when it comes to questions of inter- gress were briefed about the wiretaps, I note that last year’s intelligence national security, foreign intelligence and they were sworn to secrecy about authorization bill, as passed by the gathering, through the FISA court, a this procedure. Senate Intelligence Committee, stated special court created for that purpose. General Hayden has stated that the that the Director of the CIA should be Those are the two options. Attorney General and other legal au- appointed from ‘‘civilian life.’’ But this administration said that it thorities within the administration That bill in the end never reached was above the law; that it didn’t have had concluded that such actions were the floor of the Senate for a vote, but to answer to those courts; that it proper and legal. In fact, I have seen no we should nevertheless consider that didn’t have to work through those evidence of that whatsoever. recommendation seriously. courts; it could engage in warrantless We created the FISA court to issue General Hayden assured me that he wiretaps through the National Secu- warrants for such surveillance. If the stood up to Secretary Rumsfeld in the rity Agency, an agency administered administration believes the FISA court FISA operation when he disagreed with by General Hayden. is not sufficient in this age of ter- him, and that he will continue to do so. Several weeks ago, USA Today dis- rorism and high technology, the ad- Colleagues on the Intelligence and closed more information indicating an ministration should come to Congress Armed Services Committee, whom I invasion of privacy where the tele- and ask us to change the laws, as we deeply respect, including Senator phone records of innocent American did with the PATRIOT Act. LEVIN of Michigan, have concluded people are being gathered by the same In addition to warrantless wiretaps, that General Hayden will assert that agency, the National Security Agency, General Hayden reportedly oversaw a independence and stand up to the Pen- in an effort I cannot describe in detail program that assembled an enormous because I have not been briefed, but in tagon. I certainly hope he does. database, the largest in the history of Within the Bush administration, the an effort to find some intelligence in- the world, of literally millions of calls question of the independence of intel- formation. Now comes the nomination of Gen- made by Americans to Americans in ligence agencies is particularly impor- eral Hayden to become Director of the the United States. Tens of millions of tant. That is because the intelligence Central Intelligence Agency after all of Americans appeared to have been in- process has been abused. this experience. cluded in this database. And most of us This administration clearly politi- Let me say at the outset that I re- in Congress learned about it on the cized and distorted the use of intel- spect General Hayden. He is a man who front page of USA Today. ligence to promote the false premise has served his country with distinction I am disturbed about the role that that Saddam Hussein was tied to the 9/ for over three decades. Many say—and General Hayden played in overseeing 11 attacks and that Iraq was developing I cannot disagree—that he is one of these practices. It is certainly critical weapons of mass destruction, including brightest minds when it comes to intel- that the Director of the CIA protect nuclear weapons. We know now that ligence, and the agencies that he has our security but also not endanger our was false. worked with in the past are clear evi- liberties. In 2002, the administration under- dence of that. Second, I am concerned about the mined the independence and credibility I honor and appreciate his service. I way the CIA will treat detainees. When of the intelligence process by creating know he is a man of considerable the McCain amendment was pending, it the Office of Special Plans at the Pen- knowledge and formidable intellect. He was opposed openly by Vice President tagon under the leadership of Under is well versed in the questions of intel- RICHARD CHENEY who said that he be- Secretary of Defense Douglas Feith. ligence, particularly in the most tech- lieved intelligence agents—those work- Several of us addressed this issue as nical areas. However, I have three pri- ing for the CIA—should not be bound part of the Intelligence Committee’s mary reservations about this nomina- by the provisions of the McCain amend- 2004 Report on the Prewar Intelligence tion. ment. We disagreed. We passed, on the Assessments on Iraq. And Senator First, I am concerned about the role floor of the Senate, as I said earlier, by LEVIN joined me in this. of General Hayden in the NSA’s a vote of 90–9, clear standards barring We wrote:

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He selflessly answered Feith took upon themselves to push for a (At the request of Mr. REID, the fol- when duty called, even though it change in the intelligence analysis so that it lowing statement was ordered to be meant leaving his family behind. LT bolstered administration policy statements printed in the RECORD.) Thompson’s patriotism and courage and goals. will not be forgotten. I asked General Hayden about Doug- VOTE EXPLANATION Lieutenant Thompson is survived by las Feith and the Office of Special ∑ Mr. SALAZAR. Mr. President, I was his wife Doris and daughter Vicki. Plans. To his credit, he was critical of necessarily absent during the vote on Today we remember his selfless dedica- that operation. He said it was not le- final passage of S. 2611, the comprehen- tion and service to all Americans, and gitimate ‘‘alternative analysis,’’ and he sive immigration reform bill, because I his sacrifice will always have meaning described the troubling pattern in was traveling to Colorado to attend my to all future generations of Americans, which preconceptions shaped the youngest daughter’s high school grad- as long as our Republic exists. search for intelligence. uation. I want the RECORD to reflect SSG Gregory Wagner of Alexandria, General Hayden reiterated his dis- that had I been here, I would have SD, was a full-time heavy mobile comfort with the Feith approach in voted in favor of the bill. The legisla- equipment repairer for the National testifying before the Intelligence Com- tion that passed the Senate will help Guard in Mitchell’s Battery A, 147th mittee. I hope that when he is con- this country to reestablish meaningful Field Artillery and was deployed with firmed, as I am certain he will be, that control of our borders. It will promote the Yankton, SD unit. As a member of General Hayden will go even further in real law and order at ports of entry and the Battery C, 1st Battalion, 147th opposing efforts to subvert the intel- in the interior, improving employer Field Artillery, he was chosen as the ligence process. verification mechanisms and estab- Task Force 519th Military Police Bat- Today, we face even graver dangers lishing a tough but fair path to citizen- talion ‘‘Hero of the Week’’, having dis- than we did in 2003 when Under Sec- ship for qualified immigrants. It re- tinguished himself with his remarkable retary Feith was operating his own in- jects the idea that America can be the achievements. His mission in Iraq in- telligence shop. country we wish to be while tolerating volved training and educating the Iraqi The war in Iraq has claimed over a permanent underclass, a shadow soci- police force. 2,400 American lives, and there is no ety, within our midst. It is my hope SSG Wagner made the ultimate sac- end in sight. that the most important elements of rifice on May 8, 2006 during his service Iran has pursued three different this comprehensive bill will be retained in Iraq. He was honored with a Bronze methods of enriching uranium and has in conference with the House, and will Star and a Purple Heart. He will be re- experimented with separating pluto- be sent to the President’s desk for sig- membered for his loyalty and dedica- nium, moving closer to the possible de- nature. tion to his family, friends, fellow serv- velopment of nuclear weapons. Mr. President, I was also necessarily ice-members, and his country. Osama bin Laden is still at large; al- absent during the cloture vote on the SSG Wagner was a devoted, small- Qaida has splintered in different and town guy who graduated from Hanson nomination of Brett Kavanaugh to be a dangerous directions, and North Korea High in 1989. He was an admirer of his U.S. Circuit Judge for the DC Circuit. I is expanding its nuclear arsenal. father, Charles Wagner, who served in want the RECORD to reflect that had I All these issues make it extremely the military as a sergeant in the U.S. been here, I would have voted in favor important that our intelligence com- Army. Each year at the Memorial Day of invoking cloture.∑ munity conduct independent, accurate, services in Alexandria, SD, Charles trustworthy analysis. And it is critical f would read the roll of soldiers. When he that we operate within the bounds of HONORING OUR ARMED FORCES passed away, Greg stood in his place. our own Constitution and our laws. LIEUTENANT ROBERT KENNETH THOMPSON My heart goes out to his mother, We should not have one standard for Velma, to all his siblings, and to his STAFF SERGEANT GREGORY WAGNER the military and another for the intel- community as SGT Wagner’s name is Mr. THUNE. Mr. President, in the ligence community, a position once ar- read at this year’s Memorial Day serv- spirit of Memorial Day, which is fast gued as high in this administration as ice. Vice President CHENEY. We should not approaching, I rise today to pay tribute LT Thompson and SSG Wagner both engage in torture or hold detainees in- to two sons of South Dakota who dedi- laid down their lives for their country, definitely without of charging them cated and ultimately sacrificed their and to free others from tyranny. While with a crime. lives for their country. These men died we are currently engaged in a very dif- Just 2 weeks ago, the President of on battlefields far from home, to pro- ferent kind of war, nothing has the United States said it would soon be tect us and to advance the cause of changed in that which we are ulti- time to close Guantanamo. That cer- freedom. LT Robert Kenneth Thomp- mately trying to protect. For my free- tainly is something that many of us be- son and SSG Gregory Wagner both died dom and for your freedom and to lieve is in order. Those who are dan- in service to this great nation at very spread this freedom across the globe, gerous to the United States should be different times in America’s history. our soldiers have risked and sacrificed charged and imprisoned. Those who They fought in conflicts many years their lives. On this Memorial Day, as have no value to us from an intel- apart, but both understood the impor- we pause to reflect on those who have ligence viewpoint should be released, if tance of preserving and promoting free- died so that we all might live in free- they are not a danger to the United dom. On this Memorial Day, it is ap- dom, we can do no more to honor them States. propriate to remember not only those than to remain dedicated to the same We cannot ignore the fundamental who have fallen in the present conflict principles for which they stood and de- privacy rights of American citizens and in Iraq, but those who have fallen in voted their lives. previous conflicts as well. the moral values and rights reflected in f the treatment of those detainees. LT Robert Kenneth Thompson of General Hayden will be taking charge Flandreau, SD, was inducted into the MEMORIAL DAY 2006 of the CIA, by many reports at a time United States Army on December 27, Mr. DOMENICI. Mr. President, I when the Agency is demoralized. He 1948. At the time of his death, LT would like to pay tribute to those men will have to oversee critical reforms. Thompson was on assignment fighting and women of the United States Armed Last December, members of the 9/11 in the Korean conflict. He was killed in Services who have given their lives to Commission handed out report cards on action on February 12, 1951 north of defend our Nation and the ideals it rep- reform for the Bush administration. Hoengsong, Korea while serving as a resents. They gave the CIA an ‘‘incomplete’’ in member of Battery A, 503rd Field Artil- Numerous times in the history of our terms of adapting to its new mission. lery. Nation, the men and women of our

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