E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 113 CONGRESS, FIRST SESSION

Vol. 159 WASHINGTON, WEDNESDAY, MARCH 6, 2013 No. 32 Senate The Senate met at 9:30 a.m. and was appoint the Honorable WILLIAM M. COWAN, a ians. It is time for this awful dictator- called to order by the Honorable WIL- Senator from the Commonwealth of Massa- tyrant to step down and allow his peo- LIAM M. COWAN, a Senator from the chusetts, to perform the duties of the Chair. ple to pursue a peaceful transition to Commonwealth of Massachusetts. PATRICK J. LEAHY, the democracy which they crave. Assad President pro tempore. grows increasingly desperate as rebels PRAYER Mr. COWAN thereupon assumed the continue to gain ground despite the chair as Acting President pro tempore. The Chaplain, Dr. Barry C. Black, of- full force of Assad’s military arsenal of fered the following prayer: f planes, bombs, and rockets. President Let us pray. RECOGNITION OF THE MAJORITY Assad should understand the world is Eternal Spirit, today, as the snow LEADER watching his every action and will not gently caresses the Earth, we are re- The ACTING PRESIDENT pro tem- tolerate his unforgivable slaughter of minded of Your sovereignty over the pore. The majority leader is recog- innocent citizens, including the poten- seasons of our sojourn. You are our nized. tial future use of chemical weapons. provider and protector. You are king of President Obama has made clear— our lives. Lord, we are grateful that f and I support him 100 percent—the use each day when we pray to You, You lis- SCHEDULE of such chemical weapons would con- ten to our prayers. A thousand years Mr. REID. Mr. President, following stitute a red line for the United States means nothing to You. They are mere- leader remarks the Senate will resume and for the national community. Rath- ly a day gone by or a few hours in the consideration of the nomination of er than continue to kill his own people, night. Caitlin Halligan to be U.S. circuit Assad should end the bloodshed and re- Inspire our Senators this day to use judge for the DC Circuit. At 10:30 there linquish power to Syria’s citizens. wisely the fragile time they have. As will be a vote on that nomination. We f You help them to do Your will, may all know the weather is inclement. It is BRENNAN NOMINATION they celebrate the movements of Your getting worse, as I saw coming in. powerful providence. Show them Your I have talked to Senator MCCONNELL Mr. REID. Mr. President, as America mighty power in these challenging today. We are going to vote on the closely observes the unfolding of events times. judge at 10:30. We have the Brennan in Syria and deals with varying threats We pray in Your strong Name. Amen. nomination that we are going to finish around the world, it is crucial that f this week. I have explained to the Re- President Obama has a seasoned na- tional security team in place. PLEDGE OF ALLEGIANCE publican leader that if they are going to filibuster that—and I understand It is often said there is no substitute The Honorable WILLIAM M. COWAN led that is what they are going to do—we for experience, so it is natural that a the Pledge of Allegiance, as follows: could set up a 60-vote threshold fili- 25-year CIA veteran, John Brennan, I pledge allegiance to the Flag of the buster, and then we can go ahead and was reported out of the Senate Intel- United States of America, and to the Repub- have a vote on that today, allowing ligence Committee by a wide margin lic for which it stands, one nation under God, on a bipartisan vote. indivisible, with liberty and justice for all. people to make proper travel arrange- ments. It is strictly up to the minority. Mr. Brennan is a highly qualified f We are ready to make that arrange- nominee and should be confirmed im- APPOINTMENT OF ACTING ment, if they so agree, because of the mediately. As Deputy National Secu- PRESIDENT PRO TEMPORE weather. rity Adviser since 2009, John Brennan has been President Obama’s chief The PRESIDING OFFICER. The f homeland security and counterterror- clerk will please read a communication SYRIA ism adviser. He has been at the fore- to the Senate from the President pro Mr. REID. Mr. President, each day front of every major national security tempore (Mr. LEAHY). decision made during the Obama ad- The assistant legislative clerk read the world watches in horror at what is ministration. He is responsible for the the following letter: going on in Syria. Seventy thousand people have been killed as President White House response to pandemics, U.S. SENATE, Bashar al-Assad carries out a campaign cyber threats, natural disasters, and PRESIDENT PRO TEMPORE, Washington, DC, March 6, 2013. of wanton violence against his own terrorism attacks. He has played an in- To the Senate: people. strumental role in finding Osama bin Under the provisions of rule I, paragraph 3, These atrocities have gone on for far Laden, killing bin Laden, and, in ef- of the Standing Rules of the Senate, I hereby too long—seventy thousand dead Syr- fect, decimating al-Qaida.

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

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VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00001 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1138 CONGRESSIONAL RECORD — SENATE March 6, 2013 His distinguished intelligence career The ACTING PRESIDENT pro tem- taken? Of course not. The belief is in began more than 30 years ago when he pore. Without objection, it is so or- our system of justice both sides deserve joined the CIA as a career trainee dered. a voice in the courtroom and both straight out of graduate school. Mr. Mr. DURBIN. Mr. President, the issue sides, doing their best, give justice an Brennan worked his way up through before us is Caitlin Halligan’s nomina- opportunity. That is what Caitlin the agency to serve in senior manage- tion for the DC Circuit Court. I spoke Halligan did as the solicitor general for ment roles in the CIA, including as yesterday in support of her nomina- the State of New York. Deputy Executive Director under tion. It is unfortunate she is going to Listen to this. One of the arguments George Tenant. Years spent working on be forced to face a filibuster; in other being made against her was that while covert and analytical missions and as words, that the Republicans are going she was solicitor general she served on chief of station in Saudi Arabia give to insist on a 60-vote margin for her ap- a bar committee that issued a report him a comprehensive understanding of proval. That is unfortunate because we that favored using article III courts for the CIA’s capabilities and inner work- have tried in the beginning of this Sen- the prosecution of terrorists. Article ings. His knowledge of the Middle East ate session to avoid this kind of fili- III courts are the ordinary criminal will be essential as we continue to buster confrontation. courts of the land under our Constitu- work to defeat al-Qaida and other ter- In the last several years, we have had tion. The report argued that position. rorist threats. over 400 filibusters, a recordbreaking Many Republicans take an opposite po- Mr. Brennan has distinguished him- number of filibusters in the Senate. sition, that anyone accused of ter- self outside of government as well. He What that means is the ordinary busi- rorism should be tried in a military tri- spent 4 years in the private sector as ness of the Senate has been stopped 400 bunal, not an ordinary criminal court. president and CEO of the Analysis Cor- times, when those who were trying to They have held that position. They poration. His extensive intelligence bring up a nomination or bill or argue that position. They get red in background and executive experience amendment faced a filibuster which re- the face saying that is the only way to uniquely qualify him to lead the Cen- quired literally stretching the vote out take care of terrorists and they ignore tral Intelligence Agency. over days and sometimes even over 1 reality. Just as CIA faces the challenges week. That is unnecessary. It is frus- The reality is, since 9/11, President abroad, it also faces significant deci- trating as well. Bush, as well as President Obama, had sions about its future. John Brennan There are a lot of things we need to a choice between prosecuting terrorists must guide the CIA through a series of do and a lot of issues we need to face. in article III courts, the criminal considerations dealing with the Agen- I am not afraid of taking on controver- courts or in military tribunals. In over cy’s relationship with our military, sial votes on the floor. I think that was 400 cases, they successfully, both Presi- how the Agency should respond to the part of the job assignment coming dents, chose to prosecute accused ter- conclusions of a recent Senate Intel- here. I quoted many times my late rorists in the article III courts—suc- ligence Committee report on interroga- friend, my colleague in the House, cessfully. In only five cases—I believe tion techniques and practices, and, fi- Mike Synar of Oklahoma, who used to it is five—have they used military tri- nally, the Agency’s response to de- get right in the face of his colleagues bunals. The overwhelming evidence is mands for transparency. These consid- at the Democratic caucus when they that the article III criminal courts erations must not be made lightly, and complained about controversial votes have worked well. Prosecutions have John Brennan will give them the atten- on the floor and he said: If you don’t been successful. This argument: Oh, if tion they deserve in his role as Direc- want to fight fires, don’t be a fire- you have to read Miranda rights to an tor. fighter. If you don’t want to vote on accused terrorist, we will never be able The Senate must also approach its controversial issues, don’t run for Con- to prosecute them, they will lawyer up duty to advise and consent with the so- gress. That is what this job is about. in a hurry. It doesn’t quite work that lemnity it deserves. Unfortunately, the I agree with that. As painful as some way. In fact, we found the opposite to confirmation process has focused too of these votes have been for me and be true. When many of these folks with much this year and the last two Con- others, we should never use that as an connections through terrorism are gresses on partisan political consider- excuse for not tackling the important taken through the ordinary criminal ations and not enough on the quality of issues of our time. But this has become process, they end up being more coop- the nominees. routine now—routine filibusters, try- erative than through a military tri- I am very disappointed that I am ing to stop the Senate time and time bunal. That is a fact. A President and forced to file cloture on John Bren- again. What is particularly insidious the Attorney General have to make nan’s nomination. What does that ac- about this strategy on this nominee is that decision. So here is Caitlin complish? If someone doesn’t like him, she is an extraordinarily well-qualified Halligan, solicitor general for the come here and give a big speech, wave person. ‘‘Unanimously well qualified,’’ State of New York, whose name is on a your arms, scream and shout, and vote that is the rating she received from the bar committee report favoring the use against him. But why hold up the en- American Bar Association. When we of article III courts, which overwhelm- tire Senate over a meaningless vote? look at her resume and the things she ingly President Bush and President My Republican colleagues have al- has done, she stands out as not only an Obama decided to do, and now the Re- ready obstructed several critical nomi- excellent candidate for DC Circuit but publicans say that disqualifies her, nations this year. I hope that pattern one of the best we have had for any ju- that disqualifies her from serving on of obstructionist behavior will not per- dicial position. She is being stopped by the DC Circuit Court. It also is ridiculous position to argue sist. I do hope for the sake of the coun- the Republicans. that because an attorney argues a try the obstruction of the last two Con- What is their argument? She was the point of view in a case, that is her own gresses will vanish. I feel very certain solicitor general for the State of New point of view. I refer my colleagues to that in Mr. Brennan’s case concerns for York. The solicitor general is the hired the testimony of Justice Roberts when national security will outweigh the de- attorney for a client known as the he was up before the Senate Judiciary sire to grandstand for the weakened State of New York. So many times she Committee, when he was asked point tea party. was sent into court to argue a position that had been taken by the State or by blank: You have represented some pret- f the Governor, and she did her job as ty unsavory clients, some people we their counsel, to argue their position might disagree with, does this reflect RESERVATION OF LEADER TIME as convincingly as possible. That is your point of view? He reminded us The ACTING PRESIDENT pro tem- what lawyers do every day in court- what jurisprudence and justice are pore. Under the previous order, the rooms all across America. about in this country, that you will leadership time is reserved. Back in the day when I practiced law, have attorneys arguing their clients’ Mr. DURBIN. Mr. President, I ask I didn’t measure every client who came point of view, doing their best for their unanimous consent the order for the through the door to ask: Do I agree client, whether they happen to agree quorum call be rescinded. with every position my client has with that client’s philosophy or not.

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00002 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1139 Every attorney is bound to stand by some argue as important as the U.S. theory that those who make firearms the truth when it comes to testimony. Supreme Court, because the DC Circuit should be liable for the criminal acts of You can never ever allow a client to Court, time and again, considers the third parties who misuse them. misstate the truth knowingly in a rules and regulations and laws which Imposing potentially massive tort li- courtroom. That is hard and fast. But are promulgated in Washington. It is ability against the makers of a lawful when it comes to a point of view, for the first court of review and if that product because of the criminal acts of goodness’ sake, good attorneys argue bench on the DC Circuit is tipped one someone else did not seem much like the best case they can for the people way or the other, too conservative or ‘‘enviable social progress’’ to Randall they represent, as Caitlin Halligan did. too liberal, it shows. Casseday, who is with Kahr Arms, As Justice Roberts reminded us, it is Right now it has been tipped toward which sells firearms to the New York central to the issue of American jus- the conservative side. Republicans en- City Police Department. Here is what tice. One of our most famous Presi- gineered a deal when we were, years he said: dents, John Adams, you would think ago, embroiled in controversy over this I can’t see how Kahr Arms can be respon- ruined his political career because issue of filibustering judicial nominees. sible for misuse of its product. I don’t see when the Boston Massacre occurred, They engineered and brokered a deal to how you can do that. One lawsuit would put us out of business. John Adams, the attorney in Boston, make several appointments to the DC stood and said I will defend the British Circuit that tipped the balance toward Fortunately, the State court in New soldiers. He was defending the British the conservative side. York followed the law and rejected Ms. soldiers who had killed American sol- Now, out of the 11 positions in the DC Halligan’s entreaty that it make up diers. He did it. That was his responsi- Circuit, only 7 are filled. We are trying new law in order to achieve the so- bility as an attorney. He went on to be to fill the 8th, and they are worried called social progress she envisioned. elected President. that if Caitlin Halligan comes in—and The court observed that it had never This argument against Caitlin she is not as conservative as they recognized the novel claim pursued by Halligan, from this point of view, is as wish—it may be closer to balance. Isn’t Ms. Halligan, nor had other courts, for empty as any argument I have heard that what we want, a more balanced that matter. Moreover, the State court on the floor of the Senate and the Re- court? It is what we should want. It is called what she wanted it to do to man- ufacturers of a legal product ‘‘legally publicans insist on filibustering again the real reason the Republicans oppose inappropriate’’ and said the power she her nomination over such a week reed her nomination. of an argument. It is embarrassing. It I am sorry for her that she has to be wanted the courts to assert was the re- is troubling. It calls into question a victim of this political strategy. It sponsibility of ‘‘the Legislative and the whether the agreement earlier this doesn’t have much to do with her per- Executive branches.’’ So out of bounds were the types of year on rules changes in the Senate, a sonally, and I hope a few Republicans frivolous lawsuits pursued by Ms. bipartisan effort to try to get this who are necessary will step up and give Halligan that Congress did something Chamber back on track to solving us a chance to vote on her nomination; rare: It actually passed tort reform to problems on a bipartisan basis, did the otherwise, we are back into the dol- stop them, and it passed by a wide bi- job. drums again in terms of the Senate em- partisan majority. In her zeal for these We had the first filibuster in history broiled in controversy, stuck on fili- frivolous lawsuits, Ms. Halligan then of a Secretary of Defense—the first. busters. chose to criticize the Congress for hav- Chuck Hagel was held up for 10 days be- Since no one else is seeking the floor ing the temerity to exercise its policy- cause of a Republican filibuster, the at this moment, I ask unanimous con- making responsibility to protect a law- first time that has ever occurred. Now sent that the time consumed during ful industry. However, she didn’t just we follow it with this filibuster of this quorum calls be charged equally to criticize the Congress for trying to stop DC Circuit nominee? I don’t think we both sides. the frivolous lawsuits she was pur- have achieved much in our rules re- The ACTING PRESIDENT pro tem- suing, she chose to exaggerate the form. I don’t think our spirit of bipar- pore. Without objection, it is so or- scope of the bill by claiming that it tisanship has shown much in terms of dered. would stop State legislatures by ‘‘cut- results. The ACTING PRESIDENT pro tem- ting off at the pass any attempt to find I hate to suggest this, but if this is pore. The Republican leader. solutions that might reduce gun an indication of where we are headed, Mr. MCCONNELL. Mr. President, crime.’’ This assertion was false. It we need to revisit the rules again. We today the Senate will vote on cloture strains credulity that nearly half the need to go back to them again. I am on the nomination of Caitlin Halligan Senate Democratic Conference who sorry to say it because I was hopeful a to the U.S. Court of Appeals for the DC supported the legislation would vote bipartisan approach to dealing with Circuit. I will again oppose invoking not only for tort reform but would vote these issues would work. It is the best cloture on the nomination, and I will for Federal legislation that would thing for this Chamber—for the people explain why. block States from passing anything at serving and for the history of this in- In short, Ms. Halligan’s record of ad- all related to gun crime. Her stitution. But if this Caitlin Halligan vocacy and her activist view of the ju- mischaracterization of the legislation nomination is an indication of things diciary lead me to conclude she would underscores her zeal for the frivolous to come, we have to revisit the rules. If bring that activism right to the court. lawsuits she was pursuing. we are now going to filibuster based on As I have said many times before, the True to the adage ‘‘frequently wrong such weak arguments, then I think we role of a judge in our system is to de- but never in doubt,’’ Ms. Halligan was need to revisit the rules. termine what the law says, not what undeterred. Having had both her State They said in politics when I was they or anybody else wants it to be. court and the Congress repudiate her growing up—one of the great politi- That is not Ms. Halligan’s view of the novel legal theories, Ms. Halligan then cians I worked for, a man named Cecil courts. She views them as a means to filed an amicus brief in the Second Cir- Partee, used to say for every political ‘‘enable enviable social progress and cuit Court of Appeals in another frivo- position you take there is a good rea- mobility’’—to ‘‘enable enviable social lous case against firearms manufactur- son—and a real reason. So the good progress and mobility’’ with the ers. This time she claimed the new law reason, at least in their eyes, on the judges, not the American people, using Congress passed was unconstitutional. Republican side, is that Caitlin their office to determine what Not surprisingly, she lost that case too. Halligan argued in court for positions ‘‘progress’’ is ‘‘enviable.’’ That is the Ms. Halligan’s stubborn pursuit of they do not agree with. As I said ear- view of Ms. Halligan. frivolous claims against gun manufac- lier, I think that is an empty accusa- When she was in a position of author- turers is a textbook example of judicial tion. What is the real reason? There is ity, she put that activist view into activism—using the courts to achieve a a real reason why they are opposing practice time and time again. On the political agenda no matter what the Caitlin Halligan time and again. It is subject of second amendment rights, law says. because the DC Circuit Court is one of Ms. Halligan, as solicitor general of Her pursuit of losing legal theories in the most important courts in America, New York, advanced the dubious legal the service of her own personal views

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00003 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1140 CONGRESSIONAL RECORD — SENATE March 6, 2013 doesn’t stop there. On enemy combat- Ms. Halligan a lifetime appointment to said we should do that. The filibus- ants, Ms. Halligan signed a report as a the DC Circuit is a bridge too far. tering of Caitlin Halligan is not, I will bar association member that asserted I yield the floor. admit, against the letter of our agree- that the authorization for use of mili- The ACTING PRESIDENT pro tem- ment because it simply applies to dis- tary force did not authorize long-term pore. The Senator from New York. trict court judges, but it sure is detention of enemy combatants. In 2005 Mr. SCHUMER. Mr. President, I rise against the spirit. the U.S. Supreme Court ruled in Hamdi in full support of Caitlin Halligan and All those on our side who said we v. Rumsfeld that the President did, in must strongly disagree with my friend should change the rules because issues fact, have this authority. Yet despite from Kentucky, the Republican leader. such as the filibuster of Ms. Halligan this precedent, Ms. Halligan chose to The bottom line is very simple: She is would occur are being vindicated even file an amicus brief years later arguing a well-qualified nominee, and we know though my colleagues on the other side that the President did not possess this that. of the aisle would not want that type legal authority that the Supreme The Republican leader acts as if Ms. of option to be on the table. Court had already upheld. Halligan were acting on her own. I say this to my colleagues because I On immigration, Ms. Halligan filed Whether the Senator from Kentucky believe and I think most of us believe an amicus brief in the Supreme Court agrees or disagrees, the Republican that this is nothing about Ms. arguing that the National Labor Rela- leader cannot cite a single instance Halligan, but it is about keeping the tions Board should have the legal au- where Ms. Halligan was not acting as DC Circuit vacant and not allowing our thority to grant back pay to illegal an attorney representing the views of President to rightfully fill those vacan- aliens. However, Federal law prohibits someone else. The same was true with cies. We are going to bring nominee illegal aliens from working in the what John Roberts did, and the same after nominee after nominee up to fill United States in the first place. Fortu- was true for what Sam Alito did. When that DC Circuit. Are they going to con- nately, the Court sided with the law those issues were brought up, our col- tinue to filibuster every nominee and and disagreed with Ms. Halligan on leagues on the other side justifiably find some trivial excuse to filibuster that novel legal theory as well. said we cannot attribute those views to him or her? Because that is what is The point here is that even in cases them when they are representing some- going to happen. where the law is clear or the courts body as an attorney. We all know that The obstructionist views that some have already spoken—including the Su- the obligation of an attorney is to rep- on the other side have held and imple- preme Court—Ms. Halligan chose to get resent his or her client, whether we mented—which served them so poorly involved anyway by using arguments agree or disagree with those views. in the election of 2012, in the polls, and that had already been rejected either When one works as solicitor general, in what the American people want, by the courts, the legislature, or, in they represent the State of New York. which is for us to come together—will the case of frivolous claims against the The State of New York’s views on guns be exposed. gun manufacturers, by both. were clear, and Ms. Halligan ably rep- I would urge my colleagues to forgo In other words, Ms. Halligan has time resented those views. But nothing she this charade. Don’t vote for Halligan if and again sought to push her views has said about guns that was cited by you don’t like her, but don’t filibuster over and above those of the courts or my good friend the Republican leader her, because we are going to come back those of the people as reflected in the was her own view. Similarly on the ter- time after time after time with nomi- law. Ms. Halligan’s record strongly rorism cases, she was representing an nees to this circuit who are qualified, suggests she would not view a seat on office that was prosecuting, not her who are moderate, and who have fine the U.S. appeals court as an oppor- views, so the comparison to Miguel personal ethics. Are they going to tunity to adjudicate, evenhandedly, Estrada is like night and day. Miguel ObamaCare each one of them? Because disputes between parties based on the Estrada had his own very, very clear that is the challenge they will face. law but instead as an opportunity to views on the law, and he stated them in I urge and plead with my colleagues, put her thumb on the scale in favor of speeches, in articles, and in other based on the new comity we are des- whatever individual or group or cause ways. That is not so with Ms. Halligan. perately seeking in this Chamber, to she happened to believe in. In fact, I challenge the other side to avoid this filibuster, allow Caitlin I have nothing against this nominee give me one instance where they dis- Halligan to have an up-or-down vote. personally. I just believe, as I think agree with something Ms. Halligan She is extremely worthy of the posi- most other Americans do, that we stated as her own views as opposed to tion for which she was nominated. It is should be putting people on the bench representing someone as a lawyer only ideology, only a view that this im- who are committed to an evenhanded should. portant circuit should not be filled interpretation of the law so that every- What is really going on here? What is with nominees whom our Democratic one who walks into the courtroom going on is that our colleagues want to President nominates that is moti- knows he or she will have a fair shake. keep the second most important court vating, in my judgment, this action. In my view, Ms. Halligan is not such a in the land, the DC Circuit, vacant be- I think my time has expired, and I nominee. cause right now there are four vacan- note the absence of a quorum. I will be voting against cloture on cies and the majority of those on the The ACTING PRESIDENT pro tem- this nomination, and I urge my col- court have been appointees of Repub- pore. The clerk will call the roll. leagues to do the same. lican Presidents and, in fact, are very The legislative clerk proceeded to Our decision to do so is not unprece- conservative. That is what is going on. call the roll. dented—far from it. Many of our Demo- Let’s call it what it is. This has noth- Mr. GRASSLEY. Mr. President, I ask cratic colleagues who are expressing ing to do with Ms. Halligan. This has unanimous consent that the order for shock and utter amazement that we de- to do with keeping a court they care the quorum call be rescinded. nied cloture on Ms. Halligan’s nomina- about from having someone who The ACTING PRESIDENT pro tem- tion for a second time felt no compunc- doesn’t have those same very conserv- pore. Without objection, it is so or- tion about denying cloture on Miguel ative views. Ms. Halligan is a mod- dered. Estrada’s nomination to the very same erate, and that bothers people on the The Senator from Vermont. court. They denied nomination for him other side. It bothers the hard right Mr. LEAHY. Mr. President, will the seven times, in fact, even though—un- who use the DC Circuit in their court Senator yield? like Ms. Halligan’s record—Mr. cases to try to constrict government. Mr. GRASSLEY. Yes. Estrada’s background did not evidence I say this to my good colleagues: We Mr. LEAHY. Mr. President, I realize a penchant for judicial activism. have come to an agreement on district we have not gone in the regular order We have begun this Congress by mak- court judges and on other nominees. with the manager of the nomination ing progress on filling judicial vacan- We have come to a general agreement speaking first. We are having a hearing cies. I am happy to resume working that there ought to be more comity. right now with the Attorney General. with the majority on doing so, but be- The Republican leader, my friend from So I ask unanimous consent, when the cause of her record of activism, giving Tennessee, and so many others have distinguished Senator finishes his

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00004 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1141 speech, whatever length it is, and all I wish to share with my colleagues this legislation would nullify lawsuits time will have then been used up so why I have concluded that Ms. Halligan brought by nearly 30 cities and coun- there would not be any time reserved would approach judging with an activ- ties—including one filed by my office— for the manager of this nomination, to ist bent. Let me give just a couple ex- as well as scores of lawsuits brought by speak for 2 minutes at the conclusion amples, beginning with her record on individual victims or groups harmed by of Senator GRASSLEY’s remarks. the second amendment. gun violence. . . . Such an action The ACTING PRESIDENT pro tem- In 2003, Congress was debating the would likely cut off at the pass any at- pore. Is there objection? Protection of Lawful Commerce in tempt by States to find solutions— Without objection, it is so ordered. Arms Act or, as most of us called it, through the legal system or their own Mr. GRASSLEY. Mr. President, I ask the Gun Liability bill. At the time, gun legislatures—that might reduce gun to speak for 15 minutes on this nomina- manufacturers were facing lawsuits crime or promote greater responsi- tion that is before the Senate. based on meritless legal theories. This bility among gun dealers.’’ The ACTING PRESIDENT pro tem- frivolous litigation was specifically de- Later in that same speech, Ms. pore. Without objection, it is so or- signed to drive gun manufacturers out Halligan expressed her view of the law dered. of business. and legal system. She said, ‘‘Courts are Mr. GRASSLEY. Mr. President, I rise As it turns out, while many of us— the special friend of liberty. Time and in opposition to the nomination of both Republicans and Democrats—were time again we have seen how the dy- Caitlin Halligan, the President’s nomi- fighting here in Congress to stop these namics of our rule of law enables envi- nee for the United States Circuit Court lawsuits, Ms. Halligan was pursuing able social progress and mobility.’’ for the District of Columbia. I wish to this precise type of litigation in the I find this statement troubling, espe- take a few minutes to explain to my State of New York. cially as it relates to the nuisance law- colleagues why we should not change In New York v. Sturm & Ruger, Ms. suits against gun manufacturers. Those our prior position regarding this nomi- Halligan advanced the novel legal the- lawsuits are a prime example of how nation. It was previously rejected and ory that gun manufacturers, whole- activists on the far left try to use the should be rejected again. Before I talk about Ms. Halligan’s salers, and retailers contributed to a courts to affect social policy changes record, I want to comment on the proc- ‘‘public nuisance’’ of illegal handguns that they are unable to achieve ess. While I recognize the majority in the State. Therefore, she argued, through the ballot box. That is why I leader’s right to bring up this nomina- gun manufacturers should be liable for believe those lawsuits represented not tion, I question why we are spending the criminal conduct of third parties. only bad policy but, more broadly, an time on a politically charged and divi- Some of my colleagues have argued activist approach to the law. sive nomination. I wish the Senate in- that we should not consider this aspect Now, as I said, the State appellate stead would focus on the critical fiscal, of Ms. Halligan’s record because at the court rejected her legal theory, and national security, and domestic issues time she was working as the solicitor Congress subsequently passed legisla- we face. general of New York. But no one forced tion—by a wide bipartisan margin—to The Senate determined more than a Ms. Halligan to approve and sign this stop those lawsuits. But Ms. Halligan year ago that this nomination should brief. No one compelled her to advance still forged ahead. In 2006, notwith- not be confirmed. Rather than accept- a completely frivolous legal theory. standing the fact the Congress had ing the Senate’s decision, the President I believe a close examination of Ms. passed tort reform in this area, she at- has renominated Ms. Halligan. It is Halligan’s record indicates she was tempted once again to revive the abil- time for the President and Senate more than just an advocate. She was ity of States to pursue gun manufac- Democrats to accept the fact that this using the full weight of her office to turers. Only this time, she advanced nomination is not going to be con- advance and promote a political agen- her claims in Federal court, arguing firmed by the Senate. We need to move da masked by a legal doctrine that is the legislation Congress passed was un- on. well outside of the legal mainstream. constitutional. Fortunately, the Fed- It is well understood and accepted In the case I just mentioned, which eral appellate court rejected her legal that nominations to the DC Circuit de- was the first of two cases Ms. Halligan theory as well. serve special scrutiny. The Court of was involved in regarding gun manu- Ms. Halligan’s record of taking far Appeals for the DC Circuit hears cases facturers, the New York State appel- left and legally untenable positions is affecting all Americans. It is fre- late court found her argument to be not limited to her legal briefs in gun quently the last stop for cases involv- completely meritless and explicitly re- cases. Another example of how she ing Federal statutes and regulations. jected her theory. crossed the line from advocate to ac- Many view this court as second in im- The court went so far as to say that tivist is Scheidler v. National Organi- portance only to the Supreme Court. it had ‘‘never recognized [the] com- zation for Women. In that case she ar- And as we all know, judges who sit on mon-law public nuisance cause of ac- gued for an expansive definition of ex- the DC Circuit are frequently consid- tion’’ that Ms. Halligan advanced, and tortion under the Hobbs Act. Her sup- ered for the Supreme Court. So there is that it would be ‘‘legally inappro- port of NOW’s claim that pro-life a lot at stake with nominations to this priate’’ to permit the lawsuit to pro- groups had engaged in extortion was court. This is a court where we can ceed. Moreover, far from accepting Ms. rejected by eight Justices of the Su- least afford to confirm an activist Halligan’s invitation to legislate from preme Court, including Justice Gins- judge. the bench, the court properly con- burg—one of the most liberal justices I have a number of concerns regard- cluded that ‘‘the Legislative and Exec- on the Court. ing Ms. Halligan’s views that indicate utive branches are better suited to ad- There are a number of other aspects she will be an activist judge. There are dress the societal problems concerning of her record that I find problematic. concerns regarding her judicial philos- the already heavily regulated commer- For instance, Ms. Halligan’s views on ophy and her approach to interpreting cial activity at issue.’’ the war on terror and the detention of the Constitution. Her stated view that I will remind my colleagues that Ms. enemy combatants are especially trou- courts seek ‘‘to solve problems and not Halligan was pursuing this legal theory blesome because Ms. Halligan is a just to adjudicate them’’ indicates a at the same time we were debating the nominee for the DC Circuit, where willingness to abuse the role of a judge gun liability bill here in Congress. many of these issues are heard. should she be confirmed. She has advo- There is no question that the dubious In 2004, Ms. Halligan was a member of cated for an ‘‘evolving standard’’ of the legal theories she was advancing in a New York City bar association that Constitution, indicating a judicial phi- court reflected her own personal views, published a report entitled: ‘‘The In- losophy that embraces the notion of a not just a position she was advocating definite Detention of ‘Enemy Combat- living Constitution. In adopting the on behalf of a client. ants’ and National Security in the Con- ‘‘living Constitution’’ theory of inter- In a speech Ms. Halligan delivered on text of the War on Terror.’’ pretation, judges routinely substitute the subject in May of 2003, she said she That report argued there were con- their own personal views in place of opposed the legislation being consid- stitutional concerns with the detention what the Constitution demands. ered by Congress because, ‘‘[i]f enacted, of terrorists in military custody. It

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00005 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1142 CONGRESSIONAL RECORD — SENATE March 6, 2013 also argued vigorously against trying widely lauded as a consensus, bipar- cerned Women for America, the Amer- enemy combatants in military tribu- tisan nominee. His distinguished record ican Center for Law and Justice, Herit- nals. Instead, it argued in favor of try- of public service included service as age Action, Liberty Counsel Action, ing terrorists in civilian, article III Acting Attorney General. Despite his Family Research Council, Eagle courts. broad bipartisan support and qualifica- Forum, Center for Judicial Account- Ms. Halligan is listed as one of the tions, Mr. Keisler waited 918 days for a ability, Republican National Lawyers authors of that report. But when it committee vote that never came. Association, Judicial Action Group, came time to testify at her hearing, There was no clamor from the other Susan B. Anthony List, Americans Ms. Halligan tried to distance herself side that we needed to fill the vacancy. United for Life Action, and the Faith from the report. She testified that she There was no demand that Mr. Keisler and Freedom Coalition. did not become aware of the report be afforded an up-or-down vote. So it Mr. WHITEHOUSE. Mr. President, I until 2010. In a followup letter after her seems to me that too often, with my rise today in support of the nomination hearing, Ms. Halligan did concede that Democratic colleagues, ‘‘fairness’’ is a of Caitlin Halligan to the U.S. Court of ‘‘it is quite possible that [a draft of the one-way street. Appeals for the District of Columbia report] was sent to me,’’ but that she When the Democrats refused to con- Circuit. could not recall reading the report. sider Mr. Keisler’s nomination—or even Ms. Halligan is an outstanding nomi- I recognize that memories fade over to give him a committee vote—the nee with sterling credentials and broad time. But, as I assess her testimony, I other side justified their actions based support among the legal community. think it is noteworthy that at least on the DC Circuit caseload. So I would By the accounts of everyone who has four other members of that bar associa- like to make a few comments about worked with her or observed her work, tion committee abstained from the how the current caseload of the DC Cir- she is a first-rate legal mind and a tire- final report. Ms. Halligan did not. cuit stacks up against the caseload less worker, with great personal integ- I would also point out that several that existed when Mr. Keisler’s nomi- rity and a thoughtful temperament years later she co-authored an amicus nation was subjected to a pocket fili- that is perfectly suited to the Federal brief before the Supreme Court in the buster. bench. Her nomination deserves 2009 case of Al-Marri v. Spagone. Ms. Before doing so, I would again em- prompt confirmation. Halligan’s brief in that case took a po- phasize that given Ms. Halligan’s Ms. Halligan has spent much of her sition similar to the 2004 report with record on a host of controversial career as a dedicated and distinguished respect to military detention of terror- issues, the case for rejecting her nomi- public servant. She has a strong record ists. In that case, she argued that the nation would remain, regardless of the in law enforcement, including in her Authorization for Use of Military number of vacancies or the court’s current role as general counsel at the Force did not authorize the seizure and workload. However, since some of my Manhattan District Attorney’s Office, indefinite military detention of a law- colleagues are declaring a ‘‘judicial an office that investigates and pros- ful permanent resident alien who con- emergency’’ on the DC Circuit Court, ecutes 100,000 criminal cases annually. spired with al-Qaida to execute terror let me set the record straight. Con- She is highly esteemed by the New attacks on the United States. trary to assertions we have recently York and national law enforcement The fact that Ms. Halligan coau- heard regarding the court’s workload, communities. Her nomination has been thored this brief, pro bono, suggests to since 2005, the DC caseload has actually endorsed by New York City police com- me that she supported the conclusions continued to decline. The total number missioner Raymond Kelly, former Man- reached by the 2004 report. And again, of appeals filed is down over 13 percent. hattan district attorney Robert Mor- this issue is particularly troublesome The total number of appeals pending is genthau, the National District Attor- for a nominee to the DC Circuit, where down over 10 percent; filings per panel neys Association, several Republican many of these questions are heard. are down almost 6 percent. district attorneys from New York, the There are additional aspects of Ms. Compared to other courts of appeals, New York Association of Chiefs of Po- Halligan’s record that concern me. the DC Circuit caseload measured by lice, and the New York State Sheriff’s As New York’s Solicitor General, Ms. number of appeals pending per panel is Association, among many others. Halligan was responsible for recom- 54 percent less than the national aver- Ms. Halligan is also widely recog- mending to Attorney General Spitzer age. Filings per judge are also signifi- nized as one of the finest appellate liti- that the State intervene in several cantly lower than for the rest of the gators in the country. As solicitor gen- high-profile Supreme Court cases. She courts. While the national average of eral for the State of New York, she su- filed amicus briefs that consistently filings per active judge is 361, the DC pervised 45 appellate lawyers and rep- took activist positions on controversial Circuit is less than half, at 170 filings resented the State of New York, then- issues such as abortion, affirmative ac- per active judge. And if you take into Governor George Pataki, a Republican, tion, immigration, and federalism. consideration the fact that the DC Cir- and other State officials in both State These are just some of my concerns cuit now has six senior judges, all of and Federal courts. She has been coun- regarding the nominee’s judicial phi- whom continue to hear cases and write sel of record on nearly 50 cases before losophy and her approach to inter- opinions, there is a 26-percent decrease the Supreme Court and has argued be- preting the Constitution. These are in case filings per judge on the court fore that court 5 times. Twenty-one of neither trivial nor inconsequential since 2005. So by any meaningful meas- the top lawyers from across the polit- grounds on which to oppose her nomi- ure, the DC Circuit’s workload pales in ical spectrum who have worked with nation. comparison to the other circuit courts. Ms. Halligan, including conservatives Based on her record, I simply do not Given the concerns I have about Ms. Miguel Estrada and Carter Phillips, believe she will be able to put aside her Halligan’s record on the second amend- have endorsed her nomination. She was long record of liberal advocacy and be ment, the war on terror, and other rated unanimously ‘‘well qualified’’ by a fair and impartial jurist. issues, my concerns regarding her ac- the American Bar Association. Supporters argue that out of a sense tivist judicial philosophy, and the President Obama first nominated Ms. of ‘‘fairness’’ we should confirm Ms. court’s low workload, I oppose this Halligan in 2010. Despite Ms. Halligan’s Halligan. They note that her nomina- nomination. I urge my colleagues to do outstanding qualifications and broad tion has been pending for over 2 years. the same. support, our Republican colleagues Let me remind my colleagues that Finally, I would note a number of or- have refused to grant her an up-or- while this seat has been vacant for over ganizations have expressed their oppo- down vote for over 2 years. 7 years, it has not been without a sition to this nomination. They are the Some have argued, because of posi- nominee for all of that time. American Conservative Union, 9/11 tions that she took in litigation at the Following the elevation of then-Cir- Families for a Safe & Strong America, behest of a client, that she does not cuit Judge John Roberts in 2005, Presi- the National Rifle Association, Gun have adequate respect for the second dent George W. Bush nominated an Owners of America, Citizens Com- amendment. Yet both at her hearing eminently qualified individual for this mittee for the Right to Keep and Bear and in response to written questions, seat, Peter Keisler. Mr. Keisler was Arms, Committee for Justice, Con- she stated unequivocally that she

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00006 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1143 would faithfully follow and apply the judicial nominations. Doing so will In keeping with the 2005 agreement, I Supreme Court’s decision in District of bring much needed assistance to the have decided to oppose the President’s Columbia v. Heller, which held that the Federal judiciary, which has been nomination of Caitlin Halligan to the second amendment protects an indi- forced to contend with unmanageable U.S. Circuit Court of Appeals for the vidual right to keep and bear arms for judicial vacancy rates. It also will do District of Columbia. Ms. Halligan’s self-defense. When asked whether the credit to this institution, which is fail- demonstrated record of judicial activ- rights conferred under the second ing in its duty to confirm Federal ism on issues ranging from holding amendment are fundamental, Ms. judges. We do not deserve the moniker firearm manufacturers liable for the Halligan answered, ‘‘That is clearly of the ‘‘world’s greatest deliberative crimes of third parties, to arguments what the Supreme Court held and I body’’ if we cannot do something as regarding National Labor Relations would follow that precedent.’’ It simple as confirming judicial nomina- Board authorities, to her record on the doesn’t get much clearer than that. tions. detention of enemy combatants, indi- In 2011 Republicans filibustering her There have been some encouraging cates to me that her activist record nomination claimed that the caseload signs that we are making real progress would only continue if granted the of the DC Circuit did not warrant fill- in this regard. For instance, the rules privilege of sitting on the U.S. Circuit ing that seat because the other judges reforms that we voted on in a bipar- Court of Appeals for the District of Co- serving on the court had too few cases. tisan manner earlier this year included lumbia. At that time, Ms. Halligan was nomi- a provision to shorten the postcloture It is for these reasons and others that nated to fill the ninth seat out of 11 on debate window on district court nomi- I believe Ms. Halligan meets the ‘‘ex- the DC Circuit. nees from 30 hours to a more reason- traordinary circumstances’’ require- Even at the time, that argument was able 2. This change could dramatically ment expressed in the agreement. An questionable. Senate Republicans con- streamline the nominations process important constitutional responsibility firmed President Bush’s nominees for without limiting the minority’s ability of the executive branch and the U.S. the 9th, 10th, and 11th seats on the DC to filibuster a nominee they do not Senate is to ensure that the Federal like. It will expire at the end of this Circuit without concerns about case- bench is able to handle its caseload ex- Congress, however. I hope that we can load. That court’s caseload has only peditiously. In my view, we should only come together in bipartisan agreement gone up in since then. Also, the DC Cir- oppose cloture in extraordinary cir- to extend it permanently and perhaps cuit’s caseload is uniquely challenging, cumstances. Unfortunately, I believe even expand it to include circuit court as the former chief judge of the DC Cir- this nominee meets that requirement, nominees like Ms. Halligan. and my vote to oppose is consistent cuit, Patricia Wald, has explained: Even with this change, there is still The D.C. Circuit hears the most complex, with the agreement made in 2005. much to be done. The nonpartisan Con- Mrs. FEINSTEIN. Mr. President, I time-consuming, labyrinthine disputes over gressional Research Service recently regulations with the greatest impact on ordi- rise in strong support of the nomina- nary Americans’ lives: clean air and water reported that the confirmation per- tion of Caitlin Halligan to the D.C. Cir- regulations, nuclear plant safety, health- centage for President Obama’s nomi- cuit Court of Appeals. As a 20-year vet- care reform issues, insider trading and more. nees is the lowest of any President in eran of the Judiciary Committee and These cases can require thousands of hours the last 36 years. The effects are obvi- the first woman to serve on that com- of preparation by the judges, often con- ous. The judicial vacancy crisis in this mittee it is my great pleasure to sup- suming days of argument, involving hun- country is real, and it is growing. As port Ms. Halligan’s nomination. dreds of parties and interveners, and necessi- Supreme Court Chief Justice John Rob- Ms. Halligan has excelled at every tating dozens of briefs and thousands of erts has said, ‘‘a persistent problem has turn in her career. She graduated cum pages of record—all of which culminates in developed in the process of filling judi- lengthy, technically intricate legal opinions. laude from Princeton University in cial vacancies.... This has created 1988. She received her law degree, Even if we accept the argument that acute difficulties for some judicial dis- the DC Circuit did not need another magna cum laude, from Georgetown, tricts. Sitting judges in those districts where she was managing editor of the judge when Ms. Halligan was nomi- have been burdened with extraordinary Georgetown Law Journal and inducted nated for the ninth seat, the cir- caseloads.’’ As he explained, there is into the Order of the Coif. cumstances have changed. Because an ‘‘an urgent need for the political She began her legal career with a additional vacancy has opened, Ms. branches to find a long-term solution clerkship with Judge Patricia Wald on Halligan is currently nominated for the to this recurring problem.’’ the U.S. Court of Appeals for the D.C. eighth seat, meaning there are now So let’s return to the principle that Circuit, the first woman to serve on four vacant seats on the court. To put barring ‘‘extraordinary circumstances’’ the D.C. Circuit. it another way, the court is now under- a nominee should receive a prompt up- She then spent a year in private staffed by over one-third. At the same or-down vote on the floor, and let’s practice at the Washington, DC firm time, the Administrative Office of U.S. confirm the nomination of the out- Wiley, Rein, and Fielding, after which Courts reports that the caseload per standing nominee before us today, she clerked for Justice Stephen Breyer active judge has increased by 50 per- Caitlin Halligan. on the U.S. Supreme Court. After an- cent since 2005, when the Senate con- Mr. MCCAIN. Mr. President, I regret other year in private practice, Ms. firmed President Bush’s nominee to fill that I must oppose cloture on the nom- Halligan entered public service. She the 11th seat on the DC Circuit. ination of Caitlin Halligan to the U.S. went to the Attorney General’s Office Thus, there is no basis for debate now Circuit Court of Appeals for the Dis- in the State of New York, first as Chief about whether an additional judge is trict of Columbia. During the 109th of the Internet Bureau. needed on the D.C. Circuit. With an Congress, I joined 13 of my Senate col- She rose to become First Deputy So- extra vacancy and a growing caseload, leagues to negotiate a compromise as licitor General and ultimately Solic- the court considered by many to be part of an effort to avoid use of the so- itor General of the State of New York, second only to the Supreme Court in called nuclear option to break an orga- the State’s top appellate lawyer. Dur- its importance in our Federal judiciary nized filibuster on judicial nomina- ing nearly all of Ms. Halligan’s time as desperately needs help. tions. A tenet of that agreement was Solicitor General, George Pataki—a Luckily, we have the opportunity to the right of ‘‘signatories to exercise Republican—was Governor. Her job was send the court an outstanding legal their responsibilities under the Advice to represent the State of New York talent in Caitlin Halligan. I urge my and Consent Clause of the United zealously, and by all accounts she did colleagues to support her confirmation. States Constitution in good faith.’’ so with skill and dignity. More broadly, I hope that we can Further, the agreement went on to Judith Kaye, the former Chief Judge come together and return the Senate state that ‘‘nominees should be filibus- of New York’s highest court, writes on to its best traditions of holding up-or- tered only under extraordinary cir- behalf of the court’s entire bench that down votes on judicial nominations. cumstances, and each signatory must ‘‘it was invariably a treat’’ to have Ms. We have an opportunity this Congress use his or her own discretion and judg- Halligan argue before the court. to move past this obstruction and get ment in determining whether such cir- In fact, the National Association of back to the proper manner of handling cumstances exist.’’ Attorneys General awarded her the

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00007 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1144 CONGRESSIONAL RECORD — SENATE March 6, 2013 ‘‘Best Brief Award’’ on numerous occa- Federal Government, and represents But they are critical to making sure sions, including consecutive awards in that government on a controversial that Federal regulation in almost 2001, 2002, 2003, 2004, and 2005. issue at the direction of its duly-elect- every area operates predictably and ra- In 2007, she went into private prac- ed leaders, that may jeopardize a later tionally. tice to lead the appellate practice at confirmation vote. As Former Judge Patricia Wald re- the prestigious New York firm Weil, That is not fair. A government law- cently wrote in the Washington Post: Gotshal, and Manges. yer’s job is to pursue the government’s The D.C. Circuit hears the most com- She returned to public service in 2010 interest vigorously and to do justice, plex, time-consuming, labyrinthine dis- as the General Counsel of the New and that is what Caitlin Halligan has putes over regulations with the great- York County District Attorney’s Of- done. She was appointed by the Attor- est impact on ordinary Americans’ fice, where she has served for the past ney General to represent the State of lives: clean air and water regulations, 3 years. This office is one of the most New York, while the State had a Re- nuclear plant safety, health-care re- distinguished prosecutorial offices in publican Governor, George Pataki. Her form issues, insider trading and more. the Nation, and it handles more than job was to advance New York’s inter- These cases can require thousands of 100,000 criminal prosecutions each year. est, and she did so with vigor at the di- hours of preparation by the judges, Because of her strong background in rection of her superiors. She should not often consuming days of argument, in- law enforcement in the State of New be penalized for it. volving hundreds of parties and York, her nomination enjoys the sup- Senator SESSIONS made this point interveners, and necessitating dozens port of major law enforcement groups, when the Senate was considering the of briefs and thousands of pages of including: nomination of now-Judge Brett record—all of which culminates in The National District Attorney’s Associa- Kavanaugh to the D.C. Circuit. Senator lengthy, technically intricate legal tion; SESSIONS said that ‘‘[s]uggesting that opinions. The National Center for Women and Polic- service in an elective branch of Gov- Moreover, President Obama has been ing; the only President in nearly four dec- The New York Association of Chiefs of Po- ernment somehow tarnishes a lawyer’s lice; reputation would be a terrible message ades not to have a confirmed appoint- The New York State Sheriff’s Association; for this body to send to the legal com- ment to the D.C. Circuit. President and munity and to all citizens.’’ Ford was the last such President, but New York Women in Law Enforcement. My colleagues will recall that Judge there were no vacancies during his Ad- She also enjoys the support of many Kavanaugh had quite an activist record ministration, and every other Presi- law enforcement officials from New from our side’s perspective: he had dent since Warren Harding, over 90 York, including New York City Police worked on the Starr Report, which rec- years ago, had an appointment to this Commissioner Ray Kelly, New York ommended grounds of impeachment of court. I fear my Republican colleagues County District Attorney Cyrus Vance, President Clinton; he had worked for are treating President Obama dif- and numerous other County District George W. Bush during the Florida re- ferently from other Presidents in this Attorneys across the State. count; he then worked in the White regard. Over the course of her distinguished House Counsel’s office under President I will conclude by simply saying that career, she has served as counsel for a George W. Bush. Ms. Halligan is a woman with sterling party or amicus in the Supreme Court In short, while Kavanaugh may have credentials, an exemplary record, and a more than 45 times. She has argued in been a fine lawyer, he had an un- wealth of experience. She has been the Supreme Court herself in five doubted Republican political pedigree. nominated to a vital court that badly cases, most recently in March 2011. She Yet I carefully considered his back- needs her service. I believe she should also has argued or participated in doz- ground, and I voted to invoke cloture be confirmed, and I urge my colleagues ens of other appeals in State and Fed- on his nomination, as did many of my to vote for cloture and for confirma- eral courts. Democratic colleagues. Now it is time tion. In short, Ms. Halligan is an accom- for our Republican colleagues to do the The PRESIDING OFFICER (Ms. plished woman whose sterling quali- same on this nomination. HEITKAMP). The Senator’s time has ex- fications are unassailable. She clearly Last Congress, some of my Repub- pired. deserves the ‘‘well qualified’’ rating lican colleagues argued that the D.C. Mrs. GILLIBRAND. Madam Presi- from the American Bar Association she Circuit’s caseload does not justify con- dent, I ask unanimous consent for 2 has received—the ABA’s highest rat- firming another judge to the Court. minutes of debate. ing. The D.C. Circuit has 11 judgeships. The PRESIDING OFFICER. Is there Unfortunately, Ms. Halligan’s nomi- Four of them are vacant now—more objection? nation has been pending for a very long than a third of the court—and three Without objection, it is so ordered. time. She was first nominated to the other judges are currently eligible to Mr. LEAHY. Madam President, I un- D.C. Circuit in September 2010, 29 go senior, so the D.C. Circuit could derstand the Senator from New York months ago. The seat to which she has soon have only four of its 11 seats will speak following my comments. been nominated has been vacant since filled. The PRESIDING OFFICER. The Sen- 2005, when Chief Justice Roberts was When my colleagues raised caseload- ator from Vermont. elevated. based objections to Halligan’s nomina- Mr. LEAHY. Mr. President, today the Last Congress, my Republican col- tion last Congress, I reminded them Senate has an opportunity to act in a leagues filibustered her nomination, that, during the George W. Bush Ad- bipartisan manner to end a filibuster something that I found to be without ministration, they voted to fill the 10th against an outstanding nominee to the cause or rationale. I am very hopeful seat on the D.C. Circuit twice and the D.C. Circuit. Caitlin Halligan is an ex- that, in this Congress, reasonable 11th seat once. If confirmed, Halligan ceptional attorney with the kind of im- minds will prevail, and we will invoke would only fill the eighth seat. peccable credentials in both public cloture and confirm Ms. Halligan. In addition, the D.C. Circuit’s case- service and private practice that make I understand that the National Rifle load per judge has grown substantially her unquestionably qualified to serve Association is opposed to Ms. just in the last few years. The total on the D.C. Circuit. No one can seri- Halligan’s confirmation. Behind the number of cases terminated per active ously question her legal ability, her NRA’s opposition is the fact that— judge has grown to 280 up from 184 in judgment, her character, her integrity, while Halligan was New York’s Solic- 2010. That’s more than a 50 percent in- her ethics or her temperament. Those itor General, acting at the direction of crease. Similarly, the number of ap- who seek to misrepresent her as a par- her superiors—the State pursued public peals at the Court pending per active tisan or ideological crusader are wrong nuisance litigation against gun manu- judge has also spiked. It was 157 in 2008. and unfair. facturers. Today, it is 203 so it is up by a third. Some have mischaracterized her Think about that: if this standard This hurts ordinary Americans. Most record and distorted her views on exec- prevails, any time a person represents of the time, the cases heard by the D.C. utive authority and terrorism. Here is a State or local government, or the Circuit are not partisan or ideological. what she said about the 2004 New York

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00008 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1145 City Bar report that some are using to literally blocks away from the twin I yield the floor. inflame the debate: towers on September 11, 2001. She saw There being no objection, the mate- I was, frankly, taken aback by [this Re- and experienced the devastation of the rial was ordered to be printed in the port], for a couple of reasons. First of all, the 9/11 terrorist attack on New York. RECORD, as follows: Supreme Court has clearly said that indefi- By any traditional standard, Caitlin CITY OF NEW YORK, nite detention is authorized by the AUMF Halligan is the kind of superbly quali- New York, NY, March 5, 2013. statute. And so the notion that the President fied nominee who should be considered Hon. CHARLES E. SCHUMER, lacks that authority, I think, is clearly in- and confirmed by the Senate. The Re- Hart Senate Office Building, correct. I was also a little bit taken aback by publican leadership’s filibuster of this Washington, DC. the tone of the report. I think that the issues Hon. KIRSTEN GILLIBRAND, of indefinite detention and any issues in the nomination threatens to set a new Russell Senate Office Building, national security realm are very serious standard that could not be met by any- Washington, DC. ones, and I think that approaching those one. That is wrong, it is unjustified, issues as respectfully as possible is the most and it is dangerous. DEAR SENATOR SCHUMER AND SENATOR productive way to proceed. But the bottom It takes only a handful of sensible GILLIBRAND: In May 2011, I wrote to the Sen- line is that the report does not represent my Senate Republicans to do the right ate Judiciary Committee in strong support work. It does not reflect my views. thing. This is not a time to victimize of Caitlin Halligan’s nomination to the United States Court of Appeals for the Dis- I hope Senators who intend to make Caitlin Halligan for some sort of polit- trict of Columbia Circuit. I want to reiterate this a basis for filibustering this out- ical payback or to appeal to narrow that support, and to stress my confidence in standing nominee are listening and un- special interests. I ask those Repub- her commitment to the vigorous prosecution derstand. Again, she testified: ‘‘[T]he lican Senators who care about the judi- of our ongoing fight against the threat of bottom line is that the report does not ciary and fairness to come forward, end terrorism here in New York City. represent my work. It does not reflect this filibuster, and ratchet down the Any suggestion that Ms. Halligan would my views.’’ This is no basis for oppos- partisanship that threatens this insti- thwart efforts to protect our nation, and our ing the nominee, let alone filibustering tution, our courts and the country. city, against terrorist threats is absurd. For her consideration. The report does not A Republican Senator, who was a over three years, Ms. Halligan has served as Counsel to the New York County District At- represent her views; she flat out re- member of the ‘‘Gang of 14’’ in 2005, de- scribed his view of what comprises the torney. During that time, she has worked ex- jected them as a statement of law. tensively on key anti-terrorism cases, in- During her hearing she testified that ‘‘extraordinary circumstances’’ justi- cluding most recently the successful pros- she only became aware of the 2004 New fying a filibuster. He said: ‘‘Ideological ecution of Ahmed Ferhani, who pled guilty York Bar report in 2010 while preparing attacks are not an extraordinary cir- to very serious charges under New York for her confirmation hearing. She even cumstance.’ To me, it would have to be State’s anti-terrorism statute for a 2011 plot provided minutes from the City Bar a character problem, an ethics prob- to blow up Manhattan synagogues and Committee’s meetings to show that she lem, so allegations about the qualifica- churches. was not present and not part of the tions of a person, not an ideological As I informed the Senate in 2011, I strongly subcommittee that drafted the report. bent.’’ Caitlin Halligan has no ‘‘char- recommend Ms. Halligan for the position to acter problem,’’ no ‘‘ethics problem,’’ which she has been nominated. She rejected the views in the report, Sincerely, saying that it was ‘‘clearly incorrect.’’ and there is no justification for this fil- ibuster. I trust that Senator will apply RAYMOND W. KELLY, So while she was one of 37 members of Police Commissioner. a larger Committee, she was not a the standard he articulated and vote to end this filibuster. The PRESIDING OFFICER. The Sen- member of the subcommittee that ator from New York. drafted the report. She did not partici- Another Republican Senator said just last year in voting to end a filibuster Mrs. GILLIBRAND. Madam Presi- pate in the drafting. To filibuster her against another circuit court nominee: dent, so many good things about nomination because of a report she did [W]hen I became a Senator, Democrats Caitlin Halligan have already been not write, has not endorsed and has, in were blocking an up-or-down vote on Presi- said. She is a woman of great intellect, fact, rejected, would be a great injus- dent Bush’s judicial nominees. I said then has a history of laudable achievements, tice to this outstanding woman. that I would not do that and did not like a record of outstanding public service, New York City’s Police Commis- doing that. I have held to that in almost sioner Ray Kelly wrote in strong sup- every case since then. I believe nominees for and she deserves the full support of the port of Caitlin Halligan again this circuit judges, in all but extraordinary cases, Senate today. week, saying: and district judges in every case ought to Caitlin has had an exceptional career I want to reiterate [my] support, and to have an up-or-down vote by the Senate. as an attorney, and I am confident she If that Senator remains true to his prin- stress my confidence in her commitment to will make an excellent judge. She is ciples, he will vote to end this filibuster. the vigorous prosecution of our ongoing fight currently the general counsel at the against the threat of terrorism here in New Republican Senators who signed that New York City District Attorney’s Of- York City. 2005 memorandum of understanding fice, an office that investigates and Any suggestion that Ms. Halligan would continue to serve here in the Senate. If prosecutes 100,000 criminal cases annu- thwart efforts to protect our nation, and our they follow the standard set in that ally in Manhattan. city, against terrorist threats is absurd. For agreement, they will vote to end this She served as our Solicitor General. over three years, Ms. Halligan has served as filibuster. They demonstrated what She was awarded ‘‘Best United States Counsel to the New York County District At- they thought that agreement entailed torney. During that time, she has worked ex- Supreme Court Brief’’ while she served when they proceeded to invoke cloture tensively on key anti-terrorism cases, in- there. on a number of controversial nomina- cluding most recently the successful pros- She has overwhelming support from ecution of Ahmed Ferhani, who pled guilty tions of President Bush to the D.C. Cir- to very serious charges under New York cuit. If that agreement and standard law enforcement, from the New York State’s anti-terrorism statute for a 2011 plot had any meaning, they should all be Association of Chiefs of Police, the to blow up Manhattan synagogues and voting to end this filibuster. New York State Sheriffs Association, churches. I urge all those who have said that the National District Attorneys Asso- I ask unanimous consent that the filibusters of judicial nominations are ciation, the New York Women in Law full letter be printed in the RECORD at unconstitutional to end this filibuster. Enforcement, along with the support of the conclusion of my statement. This I urge those who said they would never community leaders, such as the Wom- is not someone soft on terrorism. She support a filibuster of a judicial nomi- en’s Bar Association of the District of has helped bring terrorists to justice. nation to end this filibuster. I urge Columbia, the National Conference of Police Commissioner Kelly is not en- those who said that they would only Women’s Bar Associations, and the dorsing someone soft on terrorism. filibuster in ‘‘extraordinary cir- U.S. Women’s Chamber of Commerce. Cyrus Vance, Jr., the New York County cumstances’’ to end this filibuster. I The bottom line is, she is a well- District Attorney, is not endorsing urge all those who care about the judi- qualified judge who would do great someone soft on terrorism. ciary, the administration of justice, service for the United States. Even This is a woman and mother who the Senate and the American people to New York City police commissioner lives in downtown New York. She was come forward and end this filibuster. Ray Kelly said Caitlin has the ‘‘three

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00009 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1146 CONGRESSIONAL RECORD — SENATE March 6, 2013 qualities important for a judicial nomi- The yeas and nays resulted—yeas 51, I suggest the absence of a quorum. nee: intelligence, a judicial tempera- nays 41, as follows: The PRESIDING OFFICER. The ment, and personal integrity.’’ She has [Rollcall Vote No. 30 Ex.] clerk will call the roll. a strong record. YEAS—51 The assistant legislative clerk pro- As to the debate we have heard on Baldwin Gillibrand Murphy ceeded to call the roll. national security, Caitlin lives in the Baucus Hagan Murray Mr. BROWN. I ask unanimous con- heart of New York City. She saw the Begich Harkin Nelson sent that the order for the quorum call Twin Towers fall. In the years that fol- Bennet Heinrich Pryor be rescinded. Blumenthal Heitkamp Reed lowed, she worked as pro bono counsel Boxer Hirono Rockefeller The PRESIDING OFFICER. Without to the board of directors of the Lower Brown Kaine Sanders objection, it is so ordered. Manhattan Development Corporation Cantwell King Schatz f that oversees the rebuilding of Lower Cardin Klobuchar Schumer Carper Landrieu Shaheen MORNING BUSINESS Manhattan—helping our city to grow Casey Leahy Stabenow stronger every single day. Coons Levin Tester Mr. BROWN. Madam President, I ask Lastly, today, women make up Cowan Manchin Udall (NM) unanimous consent to speak as in Donnelly McCaskill Warner morning business for up to 10 minutes, roughly 30 percent of the Federal Durbin Menendez Warren bench. For the first time in history, Feinstein Merkley Whitehouse and Senator INHOFE, the senior Senator that holds true in trial courts, courts Franken Murkowski Wyden from Oklahoma, be given 20 minutes of appeals, and the highest court in the NAYS—41 after I speak. The PRESIDING OFFICER. Without land, the Supreme Court. Alexander Enzi Moran It is true we have come a long way, Ayotte Fischer Paul objection, it is so ordered. but we still have a long way to go on Barrasso Flake Portman f this journey for full equality. I think Blunt Graham Reid Boozman Grassley Risch DOOLITTLE ‘‘TOKYO RAIDERS’’ she is a superbly qualified nominee, Burr Heller Roberts Mr. BROWN. Madam President, I rise and I urge my colleagues to vote in Chambliss Hoeven Rubio support of her. Coats Inhofe Scott to recognize the lasting contributions Coburn Isakson Sessions of 80 courageous Americans who par- CLOTURE MOTION Cochran Johnson (WI) Shelby ticipated in the Doolittle raid, our Na- The PRESIDING OFFICER. Pursuant Collins Kirk Thune tion’s first offensive action on Japan’s to rule XXII, the Chair lays before the Corker Lee Cornyn McCain Toomey soil during the Second World War. I am Senate the pending cloture motion, Wicker Cruz McConnell pleased to have Senator BOOZMAN as which the clerk will state. NOT VOTING—8 the lead Republican of an effort to en- The legislative clerk read as follows: Crapo Johnson (SD) Udall (CO) sure these men have the recognition CLOTURE MOTION Hatch Lautenberg Vitter they deserve. Together, we introduced We, the undersigned Senators, in ac- Johanns Mikulski S. 381, which will award the surviving cordance with the provisions of rule The PRESIDING OFFICER. On this airmen, known as the Doolittle Raid- XXII of the Standing Rules of the Sen- vote the ayes are 51 and the nays are ers, with the Congressional Gold ate, hereby move to bring to a close de- 41. Three-fifths of the Senators duly Medal. Senator BOOZMAN’s collabora- bate on the nomination of Caitlin Joan chosen and sworn not having voted in tion reiterates that bipartisan support Halligan, of New York, to be United the affirmative, the motion is rejected. for our veterans endures in this body. States Circuit Judge for the District of The majority leader. Joining us as original cosponsors are Columbia Circuit. Mr. REID. I enter a motion to recon- Senators MURRAY, TESTER, BAUCUS, Harry Reid, Patrick J. Leahy, Barbara sider the vote by which cloture was not NELSON, CANTWELL, and SCHATZ. Boxer, Benjamin L. Cardin, Robert P. invoked on the Halligan nomination. Casey, Jr., Bill Nelson, Barbara A. Mi- As chairman of the Senate Veterans’ kulski, Amy Klobuchar, Al Franken, The PRESIDING OFFICER. The mo- Affairs Committee during the last ses- Jack Reed, Sheldon Whitehouse, Rob- tion is entered. sion, Senator MURRAY also cosponsored ert Menendez, Kirsten E. Gillibrand, VOTE EXPLANATION last year’s resolution. We are grateful Richard Blumenthal, Max Baucus, ∑ Mr. VITTER. Madam President, I for her leadership. Our colleague Sen- Sherrod Brown, Dianne Feinstein. could not participate in the vote on the ator LAUTENBERG, the sole World War The PRESIDING OFFICER. By unan- motion to invoke cloture on the nomi- II veteran serving in the Senate, is also imous consent, the mandatory quorum nation of Calendar No. 13, Caitlin Joan a cosponsor. call has been waived. Halligan, of New York, to be U.S. cir- Some 16 million Americans served The question is, Is it the sense of the cuit judge for the District of Columbia this country during World War II. Senate that debate on the nomination Circuit. Had I voted, I would have Today their average age is 92. These of Caitlin Joan Halligan, of New York, voted nay. survivors have earned the respect of a to be United States Circuit Judge for Ms. Halligan has consistently es- grateful Nation. Now is the time for us the District of Columbia Circuit, shall poused extremist positions on well-set- to act to honor them. be brought to a close? tled areas of the law including second On April 18, 1942, 80 American airmen The yeas and nays are mandatory amendment rights, abortion, and ter- volunteered for an unknown assign- under the rule. rorist detention. I believe that Ms. ment. These sons, fathers, and brothers The clerk will call the roll. Halligan’s demonstrated propensity for accepted what they only knew to be The legislative clerk called the roll. judicial activism disqualifies her for ‘‘an extremely hazardous mission.’’ Mr. DURBIN. I announce that the the Federal bench where a judge must They were led by Lt. Col. James Senator from South Dakota (Mr. JOHN- impartially apply the law.∑ ‘‘Jimmy’’ Doolittle, a one-time flight SON), the Senator from New Jersey (Mr. f instructor at Wright Field in Dayton, LAUTENBERG), the Senator from Mary- OH, in my home State. He also studied land (Ms. MIKULSKI), and the Senator ORDER OF BUSINESS at Kelly Field and McCook Field in from Colorado (Mr. UDALL) are nec- Mr. REID. Madam President, we are Ohio. essarily absent. now going to move to the Brennan The Doolittle Raid was the first time Mr. CORNYN. The following Senators matter. The Republican leader and I the Army Air Corps and the Navy col- are necessarily absent: the Senator are trying to work something out. I laborated on a tactical mission. These from Idaho (Mr. CRAPO), the Senator have had numerous contacts from ev- pilots flew 16 U.S. Army Air Corps B–25 from Utah (Mr. HATCH), the Senator erybody about the problems with the Mitchell bombers from the deck of the from Nebraska (Mr. JOHANNS), and the weather. We are going to try to reach USS Hornet into combat, a feat that Senator from Louisiana (Mr. VITTER). an agreement to move forward on had never been before attempted. The PRESIDING OFFICER. Are there Brennan and finish it today. I don’t On the morning of the raid, the USS any other Senators in the Chamber de- know if we can do that, but this is Hornet was discovered by Japanese siring to vote? what we are trying to do. picket ships. Fearing the mission

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00010 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1147 might be compromised, the Raiders resources we have. In fact, we are the do and how we could get it done today launched 170 miles earlier than only country in the world that doesn’t real quickly. planned. The earlier launch meant develop its own resources. A recent CRS—Congressional Re- these men now had to travel over 650 In fact, in each of the President’s search Service—report stated that the miles to their intended targets, leaving budgets he has proposed to kill certain United States has the largest combined them with the possibility of running tax provisions specific to the oil and resources in oil, natural gas, and coal out of enough fuel to land beyond the gas industry. Even though he says of any country in the world. We have Japanese lines in occupied China. these are subsidies for the oil and gas more than Saudi Arabia, China, and Accepting this choice meant the industry, that is not the case. Canada combined. Yet we are the only Raiders would almost certainly have to I would like to mention these be- Nation, as I said, in the world that crash land or bail out either above Jap- cause no one ever talks about the fact doesn’t allow ourselves to exploit our anese-occupied China or over the home that he has specific provisions in his own resources. islands of Japan. Any survivor would own budget. I will mention just three Fortunately, oil and gas activities certainly be subjected to imprison- of them. have increased over the past years. As ment, torture or death. Intangible drilling costs—called much as the President may want to After reaching their targets, 15 of the IDCs. This is a provision that simply claim credit for this, he has no stand- bombers continued to China, while the allows producers to deduct from their ing to do so because, as I mentioned, 16th—whose plane was dangerously low revenue the cost of drilling. You pay the tax provisions he has proposed in on fuel—headed to Russia. taxes on net revenue. So this is net of his budget have been very negative to- The total distance traveled by the the expenses it takes to develop the ward oil and gas. Last year we hit a 15- Raiders was about 2,250 nautical miles revenue. Every business is allowed to year high in oil production, producing over a period of 13 hours, making it the deduct ordinary and necessary business an average of 6.4 million barrels a day, longest combat mission ever flown in a expenses, and IDCs are exactly that for which was 800,000 barrels per day more B–25 during the war. the oil and gas industry. than in 2011. Of the 80 Raiders who launched that In other words, the cost of drilling This increase is staggering and it is day, 8 were captured—3 of them were should be deducted because a lot of the result of the amazing advance- executed, 1 died of disease, and 4 of times they drill and don’t produce any- ments in oil and gas production tech- these prisoners survived and returned thing. So this is something everyone nologies—things such as horizontal home after the war. Of the original 80, else has and we should be having also drilling and hydraulic fracturing. 4 are still with us today. They are resi- in the oil industry. If the President These are things that have helped us dents of Montana, Texas, Tennessee, gets rid of these, the tax increase get the oil and gas out of tight forma- and Washington State. would be $13.9 billion over the 10-year tions. There was a fifth, MAJ Tom Griffin period we have been talking about. Nearly all of this increase has oc- of Cincinnati, OH. On the evening of This is interesting because that is not curred on State and private lands. CRS February 26, just 1 week ago—the date a tax that would be paid by them. It confirmed 1 year ago that ‘‘about 96 I introduced this legislation—Major would go into the increased cost of en- percent of the increase [in oil and gas Griffin of Cincinnati passed away sur- ergy. But we stopped that. We stopped production] since 2007 took place on rounded by family and friends. His fam- that provision from becoming a reality, non-Federal lands.’’ That is critical, ily lost a loved one, our Nation lost a even though it was in the President’s because as I have said twice already, hero. budget. we are the only country that doesn’t The remaining four Raiders will be The second is called percentage de- develop its own resources. This means commemorating the 71st anniversary pletion. Percentage depletion is simply that is beyond the reach of the Presi- of this raid this coming April in Fort a way the Tax Code has allowed oil and dent’s hands. In other words, he can’t Walton Beach, FL. Now is the time to gas producers to account for the reduc- stop the private land production but he award these survivors the Congres- tion in the value of their reserves. can the public land. sional Medal. Their valor, their skill, Let’s say they are fortunate and they Adding to that—and this was just re- their courage proved invaluable to the produced oil that is going to be income leased yesterday, which is why I want- morale of our country on that day that will go to them. As that is de- ed to make this point today—the oil more than 70 years ago and the even- pleted, the value of that has been de- production on all Federal lands, includ- tual defeat of Japan in the Second pleted also. ing onshore and offshore, declined last World War. These men continue to re- Percentage depletion has been on the year for the second year in a row, fall- mind us of the quiet determination and books as long as we have had the indus- ing from 632 million barrels in 2011 to that uncommon valor in the face of try. If the President were successful in right at 600 million barrels in 2012. So sheer danger. doing away with the percentage deple- the 800,000 barrels-per-day increase we I humbly ask my colleagues to join tion, that would mean about an $11.5 saw last year took place solely on pri- us in this bill in honoring the Doolittle billion tax increase on the energy we vate lands, none of it on public lands. Raiders. use in this country. During this boom time we are having I yield the floor. The last one I will mention—and right now, on that which the President The PRESIDING OFFICER. The Sen- there are actually two more—is called has control over—the Federal lands— ator from Oklahoma. section 199. Section 199 is the manufac- we have actually had a reduction. This f turer’s tax deduction. It allows all makes sense, given what we know manufacturers, including farmers, about oil and gas permitting on Fed- OIL AND GAS INDUSTRY filmmakers, and the rest of them to eral lands. It still take 300 days to get Mr. INHOFE. Madam President, since take a small deduction in their taxes a permit to drill. being elected, President Obama has because they create products here in This is something you can’t talk been talking about the virtues of our America. The President has always about too much because they would al- Nation’s potential to achieve domestic proposed canceling this out but only ways say: In a certain case, you need to energy independence. In his State of for the oil and gas industry and not for do it faster. In my State of Oklahoma, the Union Message just a short time anybody else. Everybody else would you can get it done in hours. In North ago he said: ‘‘After years of talking have that same advantage. Dakota, you can get permitting done in about it, we are finally poised to con- Again, if the President were success- an average of about 10 days. But no, it trol our own energy future.’’ ful in doing this, it would increase the is 300 days on Federal lands. This is something I have been saying cost of energy by $11.6 billion over that I have a friend named Harold Hamm. now for years. We already have control 10-year period. The President’s pro- He is arguably the most successful over our energy future. The problem is posal to increase these taxes would pre- independent producer in America we have an administration that has not vent the industry from reaching its today. He is from Enid, OK. He does allowed us to exploit our own capabili- true potential, despite the fact of what most of his production in North Da- ties in terms of developing the natural we have out there and what we could kota right now. I saw just a moment

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The rigs tial is for this entire country. are well over 2 quadrillion cubic feet, are still out there. They are still set This chart shows all the potential, which is enough gas to supply our do- up. They are just not operating. Over- and I call to the Chair’s attention this mestic needs in the United States for night, you can have them operating Northeastern part of the United 90 years. That is right here in this again. States—Pennsylvania and New York. It country. Many industry observers be- The industry is not moving forward didn’t use to be the case that they had lieve this estimate is discounted to the with projects because it does not have all that potential, but they do now, and Nation’s true potential. This dramatic the demand and certainty it needs to it is spread evenly throughout the shift in natural gas markets has do so. Without demand certainty, it is country with all the great new discov- pushed prices down to below $4 per impossible to accurately forecast eries that are out there. thousand cubic feet, putting the United whether the massive investments re- Anyway, one of the arguments the States in a unique position to bolster quired to develop a project can be re- President has had when I have said both wealth creation and our foreign couped. This stalls both job and wealth over and over again for the last 4 years policy might by beginning natural gas creation, keeping our unemployment that we need to open our public lands exports. So we would be going from im- rates and deficits higher than they for drilling, and if we were able to do porting liquefied natural gas to export- should be. that, good things would happen in ing natural gas. Today the natural gas market is in a terms of the market, the price of gas at Right now there are currently 15 per- demand-limited scenario, and it will the pump, is that if we do that—if we mits to export LNG pending before Sec- remain there for the foreseeable future. allow the drilling for gas and oil on retary Chu at the Department of En- Supply is truly so abundant and read- public lands—it would be 10 years be- ergy. The Natural Gas Act requires the ily available that as soon as more de- fore we would feel that at the pump— Department to ‘‘issue such [a permit] mand comes online producers are able 10 years. upon application, unless . . . it will not to tap reserves and meet the market’s So I called Harold Hamm. He is a guy be consistent with the public interest.’’ needs. who I think everyone would agree What could be inconsistent with this The consulting firm Deloitte agrees. could be considered the most knowl- for the public interest? This would be In its report, it stated ‘‘producers can edgeable person in this area, about 6 cheaper gas for us and give us total develop more reserves in anticipation months ago I called him and said to independence in a matter of weeks. of demand growth.’’ They added that him: I am going to be on a national TV Congress, when it wrote the Natural future LNG exports will have limited show—I should tell you what it is, but Gas Act, understood that the export of disruptions to natural gas markets be- I will not—and the President has been American products is good for the Na- cause they ‘‘will likely be backed by saying it will take 10 years before that tion. It supports domestic industry, long-term supply contracts, as well as oil will reach the pumps and so I would creates jobs, and transfers wealth from long-term contracts with buyers. There like to ask you a question. I said: When overseas back to the United States. It will be ample notice and time in ad- you answer, I am going to use your is all good for us. vance of the exports to make supplies name live on national TV tonight, so A recent report commissioned by available.’’ make sure you are accurate. So I asked DOE to assist it in making its deter- This should be of great encourage- him: If you had a rig set up in New mination agreed with this. They stat- ment to domestic energy consumers. In Mexico and you were able to lift the re- ed: fact, the NERA Consulting Report con- strictions we have on public lands, how . . . across the scenarios [examined by the cluded that across the board, industries long would it take that oil and gas to study], the U.S. economic welfare consist- would not be hurt by LNG exports, hit the market? He said, without hesi- ently increases as the volume of natural gas stating that ‘‘no sector analyzed . . . tating, 70 days. I said: Be sure you are exports increases. would experience reductions in employ- right. I am going to use your name, So that is the opportunity that is out ment more rapid than normal turn- and he proceeded to tell me what would there. over.’’ happen each day for the first barrel of Some in this body have raised con- The petrochemical industry is one oil to actually reach the pumps and cerns about allowing liquefied natural that has been vocal in opposition to have an effect. gas exports to move forward. They are LNG exports, but the leftwing think Anyway, no one has argued with that concerned mainly that production tank, the Brookings Institute, stated yet because it is pretty well docu- would not be able to keep up with the in its LNG report that ‘‘exports can be mented. So by the time you have one rising consumption and exports and seen as providing a benefit to the pe- Federal drilling permit completed, that the follow-on effects will be harm- trochemical industry’’ because it is pri- Harold Hamm could have four separate ful to domestic industries. I can appre- marily a user of natural gas liquids and wells up and running, providing more ciate where these Members are coming not the dry liquids used to make LNG. jobs and cheaper gasoline for all Amer- from, but I want to point out some- I can appreciate the fact that many icans. thing that many may be overlooking. people are worried about the cost of en- Fortunately, the President does not The Energy Information Agency, the ergy going up in this country. I am too. control the permitting process on EIA, releases an annual outlook for But those who are concerned that ex- State and private lands, and because of U.S. energy markets. In their most re- ports will be the cause of this have this the industry has had the oppor- cent one, which came out just a few misplaced concerns. Rather, they tunity to unlock tremendous natural weeks ago, they estimated that be- should be focusing their attention on gas resources. Not 5 years ago, many tween now and 2040, production of nat- the cumulative effect of adverse gov- believed the United States faced a sig- ural gas would increase by 40 percent, ernment policies negatively affecting nificant shortage of natural gas. Well- which will more than offset the ex- energy sources. Government regula- head prices at that time were trading pected 20 percent increase in consump- tions, largely those coming out of the as high as $11 per thousand cubic feet— tion. So our consumption is going to EPA, are perhaps the greatest threat $11 per thousand cubic feet—and inves- increase. People say: How can we ever to this Nation achieving domestic en- tors were racing to build liquefied nat- become independent. Our production ergy independence. We have gone from ural gas import facilities. We were will increase at twice the consumption 1,600 rigs out there that were operating going to import liquefied natural gas. level. down to 428 rigs. As you know, natural gas has to be liq- Today, natural gas is trading near an Further, when considering the poten- uefied to have some bulk before you all-time low, and because of this many tial benefits of LNG exports, we can’t are able to trade it internationally. producers have completely abandoned dismiss the impact trade has had on

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00012 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1149 other sectors of our economy. Agri- one by one the statements he has Then President Obama suggested culture is a prime example. The Fed- made. I would only suggest that this is that all of the people who keep the eral Government works diligently to something we need to keep in mind. Capitol clean would be suffering a pay open and maintain international mar- In 1895, we went into this hysteria at cut. But that wasn’t true either, ac- ket access for U.S. agricultural pro- that time because there was a cold cording to Capitol Superintendent Car- ducers. This was highlighted very re- snap: We are all going to freeze to los Elias. cently by the announcement that death. Another ice age is coming. We We have been repeatedly told that Japan would ease its restrictions on are all going to die. the sequester would trigger drastic lay- U.S beef imports. Certainly, this is In 1920, it was the same thing except offs of Federal workers. Yet on Monday meaningful to my State and the States it was a heat spell. This, obviously, alone the Federal Government posted of others who are in this Chamber right wasn’t true at that time, but everyone literally hundreds of job advertise- now. This has been a major goal of the was getting hysterical. These 20-year ments. current and previous administrations cycles keep coming and going. You can Finally, just yesterday, when asked for years, and Japan’s decision was set your watch by them. Except in 1945, to provide evidence for the claim that hailed by the administration and many it was another cold spell that lasted 70,000 children would be denied access to Head Start because of the sequester, Members of Congress on both sides of until 1975. The interesting thing about the White House had no details. While the aisle. Everyone knows it is a great this is that 1945 was the year that had the President has been out there play- deal because when you sell products the largest release of CO of any time 2 ing Chicken Little, Members of Con- abroad, you both generate wealth at in the history of this country, and that gress have been waiting for the White home and expand the size of the mar- precipitated not a warming trend but another cold trend. The warming trend, House to send over its budget. ket, thereby increasing opportunities The law requires the President to of course, came in 1975. for expansion. transmit a budget by February 4, and Anyway, these are cycles. God is still The Federal Government should we have been now advised his budget up there. We are going to have these adopt the same perspective with LNG will not be forthcoming until March 25. cycles take place. Later on today, exports. LNG exports will create jobs Ironically, that will actually be after across the country, bring more wealth hopefully, I want to take each state- the House and the Senate have taken to our Nation from abroad, and grow ment that the President has made and up our own budget, and we will have no our economy—all at the same time. show that those statements weren’t input from the President on his pro- Meanwhile, we will be providing needed right. posal. fuel for our allies—Japan, Korea, One thing that is true—one thing A few weeks ago I said a second term NATO, and Thailand—who will con- that no one disagrees with—is that the offers the President a second chance. I sequently be able to reduce their reli- cost of having some type of a cap-and- still remain hopeful that President ance on the Middle East. trade system that the President wants Obama will eventually be persuaded to So it is something that is good for would be between $300 billion and $400 adopt a serious approach for long-term everybody. It is good for our country; billion a year. By the admission of the deficit reduction and long-term eco- it is good for our economy. And all you past Director of the EPA, Lisa Jack- nomic growth. have to do is, if you want to see that, son—when I asked the question: If we One of the great tragedies in America look up to North Dakota. As I men- were to incur all these taxes, would today is the fact that our economy is tioned, a great independent producer, something we do in the United States growing so slowly that unemployment Harold Hamm from Oklahoma, is up affect the release of CO2 worldwide, rates remain unacceptably high— there right now, and his biggest prob- She said: No. Because the problem isn’t roughly around 8 percent. That is only lem is they are fully employed. here. The problem is in China. The after many people have simply given We have a similar situation in my problem is in India and other places. up looking for work. Now more than 20 State of Oklahoma. We have expanded So, again, for those who believe that million people are either out of work or our production to the point where we CO2 is causing global warming or other they are working part time when they are not feeling some of the grief you climate disasters, keep in mind, even would prefer to work full time. But hear in the discussions from the other the EPA Director appointed by Presi- that is not going to happen until we people on this floor. So I would encour- dent Obama agrees that would not re- get the economy growing again—and age us to look at this export to keep duce any CO2 worldwide. that is not going to happen until we this market, to get those other 1,600 Mr. President, I yield the floor. get our hands around our long-term wells working. This is something that The PRESIDING OFFICER. The Re- deficit and economic growth. can certainly happen. publican whip. I realize the President and Demo- f Mr. CORNYN. Madam President, I crats want to take the House of Rep- ask unanimous consent that following resentatives back in 2014. The Presi- THE STATE OF THE UNION my remarks, the Senator from Ken- dent probably remembers the Halcyon ADDRESS tucky, Mr. PAUL, be recognized. days of 2009 and 2010 when his party I notice my time is expiring, but I The PRESIDING OFFICER. Without controlled the White House, the Sen- want to mention something that came objection, it is so ordered. ate, and the House. That got us out in the State of the Union Message. f ObamaCare, a $1 trillion stimulus, and I hope I will have a chance to do this a whole lot more debt, and the Dodd- THE SEQUESTER later on today. Frank law—which was targeted at Wall When the President was talking Mr. CORNYN. Madam President, I Street but which hit Main Street, in- about greenhouse gas, as he has been am not sure where the Obama adminis- cluding a lot of our community bank- talking about for a long time, he made tration is getting all of its talking ers. several comments. I think this was points on the sequester, but the Presi- There is a time for campaigning and talked about more in the State of the dent might want to consider hiring a there is a time for governing. But the Union Message than anything else he fact checker. 2012 election occurred 17 weeks ago and talked about. Even before the sequester took effect, the 2014 election will not occur for an- Yes, it’s true that no single event makes a Education Secretary Arne Duncan de- other 20 months. Now is the time for trend. But the fact is that the 12 hottest clared that schoolteachers were getting governing, not for delivering more par- years on record have all come in the last 15. pink slips. A few days later he had to tisan stump speeches. In order to gov- That is just flat wrong. Even NASA’s walk those comments back. He said he ern, the Senate needs to pass a budget, James Hansen, who officially has been was referring to a single school in West something this Chamber has not done the leader on the other side of this Virginia. But when the Washington for more than 1,400 days. Over that issue, admits that global temperature Post contacted the superintendent of same period our gross national debt standstill is real, and mean global tem- that school, he said not one teacher has grown by $5.5 trillion and we have peratures have been flat for the last had gotten a pink slip because of the experienced the weakest economic re- decade. Later on I am going to go over sequester. covery since the Great Depression.

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00013 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1150 CONGRESSIONAL RECORD — SENATE March 6, 2013 Since the official end of the recession the White Queen’s caustic judgments is signature attacks. They do not even in June of 2009, the median household are not really a threat to your secu- know the name of the person. A line or income in America has fallen by more rity. Or has America the beautiful be- a caravan is going from a place where than $2,400. Meanwhile, since the Presi- come Alice’s Wonderland? we think there are bad people to a dent took office the cost of family ‘‘No, no!’’ said the Queen. ‘‘Sentence first— place where we think they might com- health insurance has increased by verdict afterwards.’’ mit harm and we kill the caravan, not $2,300. So not only has household in- ‘‘Stuff and nonsense!’’ Alice said loudly. a person. Is that the standard we will ‘‘The idea of having the sentence first.’’ come for most Americans—the median ‘‘Hold your tongue!’’ said the Queen, turn- now use in America? Will we use a household income, that is—dropped by ing purple. standard for killing Americans to be $2,400, they are seeing an additional ‘‘I won’t!’’ said Alice. that we thought you were bad, we burden of $2,300 because of ObamaCare. [‘‘Release the drones,’’] said the Queen, as thought you were coming from a meet- The bottom line is the American peo- she shouted at the top of her voice. ing with bad people and you were in a ple are tired of the ‘‘Chicken Little’’ Lewis Carroll is fiction, right? When line of traffic and so therefore you were stories and they are tired of the fear I asked the President: Can you kill an fine for the killing? mongering. They look at what is hap- American on American soil, it should That is the standard we are using pening in Washington—I know my con- have been an easy answer. It is an easy overseas. Is that the standard we are stituents in Texas do—and they almost question. It should have been a re- going to use here? I will speak today want to turn their eyes in another di- sounding and unequivocal no. The until the President responds and says: rection to avert their gaze because President’s response: He hasn’t killed No, we won’t kill Americans in cafes. they understand that Washington is anyone yet. No, we won’t kill you at home in your We are supposed to be comforted by not serving their interests. If President bed at night. No, we won’t drop bombs that. The President says: I haven’t Obama wants real change, it is time for on restaurants. killed anyone yet. . . . He goes on to him to get behind real tax reform and Is that so hard? It is amazing that say: and I have no intention of killing real reform of Social Security and the President will not respond. I have Americans, but I might. been asking this question for a month. Medicare, something his own bipar- Is that enough? Are we satisfied by It is like pulling teeth to get the Presi- tisan fiscal commission—Simpson- that? Are we so complacent with our dent to respond to anything and I get Bowles—recommended. rights that we would allow a President no answer. The President says he After all, the American people did to say he might kill Americans, but he hasn’t done it yet and I am to be com- not send us here to kick and scream will judge the circumstances, he will be forted. You are to be comforted in your over a 2.4-percent budget cut. They the sole arbiter, he will be the sole de- home. You are to be comforted in your sent us here to make some hard deci- cider, he will be the executioner in restaurant. You are to be comforted in sions to ensure long-term economic chief if he sees fit? health and economic prosperity and it Some will say he would never do this. online communicating in your e-mail is time for the President as the leader Many people give the President consid- that the President has not killed an of our country and the leader of the eration. They say he is a good man. I American yet in the homeland. He says free world to take that message to am not arguing he is not. What I am he has not done it yet. He says he has heart. arguing is that the law is there, set in no intention to do so. I yield the floor. place for the day when angels don’t Hayek said that nothing more distin- The PRESIDING OFFICER (Ms. rule government. Madison said that the guishes arbitrary government from a BALDWIN). The Senator from Kentucky restraint on government was because government that is run by the whims is recognized. government will not always be run by of the people than the rule of law. The f angels. This has nothing, absolutely law is an amazingly important thing, an amazingly important protection. BRENNAN NOMINATION nothing, to do with whether the Presi- dent is a Democrat or a Republican. For us to give up on it so easily doesn’t Mr. PAUL. Madam President, I rise Were this a Republican President, I speak well of what our Founding Fa- today to begin to filibuster John Bren- would be here saying exactly the same thers fought for, what generation after nan’s nomination for the CIA. I will thing: No one person, no one politician generation of American soldiers has speak until I can no longer speak. I should be allowed to judge the guilt— fought for, what soldiers are fighting will speak as long as it takes until the to charge an individual, to judge the for today when they go overseas to alarm is sounded from coast to coast guilt of an individual, and to execute fight wars for us. It doesn’t speak well that our Constitution is important, an individual. It goes against every- of what we are doing here to protect that your rights to trial by jury are thing we fundamentally believe in our the freedom at home when our soldiers precious, that no American should be country. This is not even new to our are abroad fighting for us that we say killed by a drone on American soil country. There is 800 years of English our freedom is not precious enough for without first being charged with a law that we founded our tradition on. one person to come down and say: crime, without first being found to be We founded it upon the Magna Carta Enough is enough, Mr. President, come guilty by a court. That Americans from 1215. We founded it upon Morgan clean, come forward and say you will could be killed in a cafe in San Fran- of Glamorgan from 725 A.D. We founded not kill Americans on American soil. cisco or in a restaurant in Houston or it upon the Greeks and Romans who The oath of office of the President at their home in Bowling Green, KY, is had juries. It is not enough to charge says that he will, to the best of his an abomination. It is something that someone to say that they are guilty. ability, preserve, protect and defend should not and cannot be tolerated in Some might come to this floor and the Constitution. He raises his right our country. they might say: What if we are being hand, he puts his left hand on the I do not rise to oppose John Bren- attacked on 9/11? What if there are Bible, and he says ‘‘will.’’ The Presi- nan’s nomination simply for the per- planes flying at the Twin Towers? Ob- dent doesn’t say, I intend to if it is son. I rise today for the principle. The viously we repel them. We repel any at- convenient; I intend to unless cir- principle is one that, as Americans, we tack on our country. If there is a gen- cumstances dictate otherwise. The have fought too long and hard for to tleman or a woman with a grenade President says, ‘‘I will defend the Con- give up on, to give up on the Bill of launcher attacking our buildings or stitution. I will protect the Constitu- Rights, to give up on the fifth amend- our Capitol, we use lethal force. You tion.’’ ment protection that says no person don’t get due process if you are in- There is not room for equivocation shall be held without due process, that volved with actively attacking us, our here. This is something that is so im- no person shall be held for a capital of- soldiers, or our government. You don’t portant, so fundamental to our country fense without being indicted. This is a get due process if you are overseas in a that he needs to come forward. precious American tradition and some- battle, shooting at our soldiers. But When Brennan, whose nomination I thing we should not give up on easily. that is not what we are talking about. am opposing today, was asked directly: They say Lewis Carroll is fiction; The Wall Street Journal reported and Is there any limit to your killing? Is Alice never fell down a rabbit hole, and said that the bulk of the drone attacks there any geographic limitation to

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It has nothing to do with kill, does that mean you will do it in they were passing out general writs or whether someone is a Republican or America? The Senator from Oregon writs of assistance. These were war- Democrat. It has to do with whether we asked him that question directly, in rants that allowed them to go into a fear the consolidation of power, wheth- committee. And this so-called cham- house but allowed them to go into any- er we fear power being given to one pion of transparency, this so-called ad- one’s house. What we did when we person, be it a Republican or a Demo- vocate of some kind of process, re- wrote our Constitution is we made the crat. This is not necessarily a right-left sponded to the Senator from Oregon by Constitution—we made the fourth issue. saying: I plan to optimize secrecy and amendment specific to the person and Kevin Gosztola, who writes at optimize transparency. the place and the things to be looked firedoglake.com, writes that the mere Gobbledygook. You were asked: Will for. We did not like the soldiers going fact that the President’s answer to the you kill Americans on American soil? willy-nilly into any house and looking question of whether you can kill an Answer the question. for anything. So we made our Constitu- American on American soil was yes is Our laws forbids the CIA from doing tion much more specific. outrageous. However, it fits the frame- that. It should have been an easy ques- I think this is something we should work for fighting a permanent global tion. The 1947 National Security Act not give up on so easily. I think the war on terrorism without any geo- says the CIA doesn’t operate in our idea that we could deprive someone of graphic limitations, which President country. We have the FBI, we have their life without any kind of hearing, Obama’s administration has main- rules, we have separated powers to pro- essentially allowing a politician—I am tained it has the authority to wage. tect your rights. That is what govern- not casting any aspersions on the What is important to note is that we ment was organized to do. That is what President. I am not saying he is a bad are talking about a war without geo- the Constitution was put in place to person at all. But he is not a judge. graphic limitations, but we are also do, to protect your rights. So when I He is a politician. He was elected by talking about a war without temporal asked, he says: No answer. He says: I a majority, but the majority doesn’t limitations. This war has no limit in will evade your answer, and by letting get to decide whom we execute. We time. When will this war end? It is a him come forward we let him get away have a process for deciding this and we war that has an infinite timeline. If we with it. have courts for deciding this. To allow are going to suspend our rights, if I have hounded and hounded and fi- one man to accuse a person in secret there is going to be no geographic lim- nally yesterday I get a response from and to never get notified that they its to killing—which means we are not Mr. Brennan, who wishes to be the CIA have been accused—their notification at war in Afghanistan, we are at war chief, and he finally says: I will obey is the buzz of the propellers on the everywhere. Everybody who pops up is the law. drone as it flies overhead in the sec- al-Qaida. Whether they have heard of Well, hooray. Good for him. It took a onds before they are killed. Is that al-Qaida or whether they have had any month to get him to admit that he will what we want from our government? communication with some network of obey the law. But it is not so simple. Are we so afraid of terrorism and so al-Qaida, it is al-Qaida. There is a new You see, the drone strike program is afraid of terrorists that we are willing war going on everywhere in the world, and there are no limitations. under the Department of Defense, so to just throw out our rights and our Glenn Greenwald has also written when the CIA says they are not going freedoms and what we have fought for about this subject, and he was speaking to kill you in America, they are not and have gotten over the centuries? We at the Freedom to Connect conference. saying the Defense Department won’t. have at least 800—if not 1,000—years’ He said there is a theoretical frame- So Eric Holder sent a response, the At- worth of protections. work being built which posits that the torney General. His response says: I Originally, the protections were U.S. Government has unlimited power. haven’t killed anyone yet. I don’t in- against a monarch. We feared a mon- Some call this inherent power. ‘‘Inher- tend to kill anyone. But I might. arch. We didn’t like having a monarch. ent’’ means it has not been defined He pulls out examples that are not When we came to this country and set anywhere; it has not been expressly under consideration. There is the use of up our Presidency, there was a great given to the government. They have local force that can always be re- deal of alarm. There was a great deal of decided this is their power and they are pelled—if our country is attacked, the fear over having a king, and so we lim- going to grab it and take what they President has the right to protect and ited the executive branch. Madison defend the country. Nobody questions get. wrote in the Federalist Papers that the This is not new. The Bush adminis- that. Nobody questions if planes are Constitution supposes what history tration did some of this too. When the flying toward the Twin Towers whether demonstrates, which is that the execu- Bush administration tried to grab they can be repelled by the military. tive branch is the branch most prone to power, the left—and some of us on the Nobody questions whether a terrorist a war, most likely to go to war, and, right—were critical when they tried to with a rocket launcher or grenade therefore, we took that power to de- wiretap phones without a warrant. launcher is attacking us, whether they clare war and vested it in the legisla- Many on the right and many on the can be repelled. They do not get their ture. We broke up the powers. left raised a raucous. There was a loud day in court. Montesquieu wrote about the checks outcry against President Bush for But if you are sitting in a cafeteria and balances and the separation of usurping, going across due process, not in Dearborn, if you happen to be an powers. He was somebody whom Jeffer- allowing due process, and not obeying Arab American who has a relative in son looked toward. They separated the the restraints of warrants. Where is the Middle East and you communicate powers because there is a chance for that outcry now? with them by e-mail and someone says abusive power when power resides in Glenn Greenwald writes: your relative is someone we suspect of one person. Montesquieu said there can There is a theoretical framework being being associated with terrorism, is that be no liberty when the executive and built that posits that the U.S. Government enough to kill you? For goodness sake, the legislative branches are combined. has unlimited power, when it comes to any wouldn’t we try to make an arrest and I say something similar; that is, kind of threats it perceives, to take what- come to the truth by having a jury and there can be no liberty when the execu- ever action against them that it wants with- a presentation of the facts on both tive and the judiciary branches are out any constraints or limitations of any sides of the issue? combined, and that is what we are kind. See, the real problem here is one of doing here. We are allowing the Presi- As Greenwald suggests—and this goes the things we did a long time ago is we dent to be the accuser in secret, we are back to Gosztola’s words—answering

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1152 CONGRESSIONAL RECORD — SENATE March 6, 2013 yes to the question that you can kill could target and kill an American cit- to use in the United States? If we are Americans on American soil illustrates izen on American soil without charge going to kill Americans on American the real radicalism the government has and without trial is a stark example of soil and the standard is going to be sig- embraced in terms of how it uses its an imperial Presidency. nature strikes of a person who is close own power. This is what our Founding Fathers to bad people or in the same proximity We were opposed to them listening to wanted to fight against. They wanted of bad people, is that enough? Are we our conversations without a warrant, to limit the role and the power of the happy with that standard? Are we but no one is going to stand and say President. They wanted to check the happy we have no jury, no trial, no anything about killing a person with- President’s power with the power of charges, and nothing done publicly? out a warrant, a judge’s review or a the Senate, the power of the House, Eric Holder, the Attorney General’s jury? No one is going to object to that? and the power of the judiciary. We have response to me is that they maintain Where is the cacophony who stood and three coequal branches. Not one of they are not going to do this. We said: How can you tap my phone with- them should be able to run roughshod should just trust them. It is not about out going to a judge first? I ask: How on the other. them, though. It is about the law. The can you kill someone without going to The problem is we have allowed this law restrains everyone equally, regard- a judge or a jury? Are we going to give to happen—not me personally, but Con- less of their party or whether they are up our rights to any politician of any gress in general has allowed the Presi- Republican or Democrat. The law is stripe? Are we going to give up the dent to usurp this power. If there were out there for the time when somebody right to decide who lives and who dies? an ounce of courage in this body, I inadvertently elects a truly bad person. Gosztola goes on to say the reason would be joined by many other Sen- When World War I ended, the cur- the administration didn’t want to an- ators in saying we will not tolerate rency was being destroyed in Germany. swer yes or no to this question—can this, that we will come together, in a In 1923, paper money became so worth- you kill Americans on American soil— bipartisan fashion, and tell any Presi- less that people wheeled it in wheel- is because he says a ‘‘no’’ answer would dent that no President will ever have barrows; they burned it for fuel. It be- jeopardize the critical, theoretical the authority to kill Americans with- came virtually worthless overnight. At foundation they have very carefully out a trial. When the President says he the beginning of September 1923, I think it was like 10 or 15 marks for a constructed that says there are no cog- does intend to do so, we have to think loaf of bread. On September 14, it was nizable constraints on how U.S. Gov- that through. 1,000 marks. On September 30, it was ernment power can be asserted. One year ago, the President signed a Civil libertarians once expected more law that says a person can be detained 100,000 marks. By October 15, it was a from the President. In fact, it was one indefinitely and that they can be sent couple of million marks for a loaf of of the things I liked about the Presi- from America to Guantanamo Bay bread. It was a chaotic situation. Out of that chaos, Hitler was elected demo- dent. I am a Republican. I didn’t vote without a trial. He wants us to be com- cratically. They elected him out of this for or support the President either forted by that. He wants us to remem- chaos. time, but I admired him. I particularly ber and think well of him because he My point is not that anybody in our admired him when he ran in 2007. I ad- says: I don’t intend to do so. It is not country is Hitler. I am not accusing mired his ability to stand and say: We enough. I mean, would we be able to anybody of being that evil. I think it is will not torture people. That is not tolerate a Republican who stood and an overplayed and misused analogy. what America does. said: I like the first amendment, I am What I am saying is that in a democ- How does the President’s mind work? quite fond of the first amendment, and racy we could someday elect someone The President—who seemed so honor- I don’t intend to break the first amend- who is very evil, and that is why we able, so concerned with our rights, so ment, but I might. don’t give the power to the govern- concerned with the right not to have Would conservatives tolerate some- ment. It is not an accusation of this our phone tapped—now says he is not one who said: I like the second amend- President or anybody in this body; it is concerned with whether a person can ment, I think it is important and I am a point to be made historically that oc- be killed without a trial. The leap of for gun ownership and I don’t intend to casionally even a democracy gets it logic is so fantastic as to boggle the violate the second amendment, but I wrong. So when a democracy gets it mind. Where is the Barack Obama of might. Would we tolerate that he wrong, we want the law to be there in 2007? Has the Presidency so trans- doesn’t intend to do so as a standard? place. We want this rule of law. formed him that he has forgotten his We have to think about the standards As I mentioned, Hayek said that this moorings and what he stood for? being used overseas. Google inter- is what distinguished us. Nothing dis- Civil libertarians once expected more viewed him not too long ago and asked tinguishes us more clearly from arbi- from the President. Ask any civil liber- him if he could kill Americans at trary government and a government of tarian whether the President should home. He was evasive. He said there whims than a rule of law, and a stable have the right to arbitrarily kill Amer- are rules. He said the rules outside and consistent government is the rule icans on American soil, and the answer would be different than inside. I cer- of law. is easy. Of course no President should tainly hope so. Outside the United Heritage has an author who has writ- have the right or that power under the States the rules for killing are that ten some about the oath of office. His Constitution. someone can be killed through a signa- name is Kesavan. He writes that the lo- Brennan has responded in committee ture strike. We don’t have to know cation and the phrasing of the oath of that now the CIA does not have the what that person’s name is, who they office for the President—this is some- right to do it on American soil. The are or whom they are with. If a person thing I mentioned earlier, that the problem is that this program is under is in a line of traffic and we think they President says he will protect and de- the Department of Defense, so it is, are going from talking to bad people to fend and preserve the Constitution— once again, an evasive answer. They talking to other bad people, we can kill words are important. The oath doesn’t are not answering the true question: that person. say, I intend to preserve, protect, and Will the Government of America kill Is that going to be the standard in defend; it says, I will. Americans on American soil? America? When they are asked if they Kesavan writes, though, that the lo- Gosztola, from firedoglake.com, have killed civilians in their drone cation and phrasing of the oath of of- writes that there may never be a tar- strikes, they say no. However, a person fice strongly suggests that it is not em- geted killing of a U.S. citizen on U.S. is not counted as a civilian if they are powering but limiting. So the Presi- soil—and the question of whether a male or if they are between the ages of dent doesn’t take an oath of office that U.S. citizen could be targeted and 16 and 50. They are considered a poten- says: I intend to preserve, protect, and killed on U.S. soil may remain a hypo- tial and probable combatant if they are defend the Constitution, but I also feel thetical question for some time—but in the 16-to-50 age range. that I have inherent powers that were the fact that the Obama administra- My question is: If you are not a civil- never mentioned by anybody that I will tion has told a U.S. Senator there is a ian, if you are in proximity to bad peo- be the sole arbiter of interpreting what circumstance where the government ple, is that the standard we are going those powers are.

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1153 That sounds more like a king. That to pay in cash; people who own more son was 16 years old, and he missed his is not what we wanted. We did not than one gun; people who own weather- dad, who had been gone for 2 years. His want an imperial Presidency. What ized ammunition; people who have 7 son sneaks out of the house and goes to Kesavan suggests is that the oath of of- days of food in their house—these are Yemen. His son is then killed by a fice is not empowering but that it is people we should be afraid of and we drone strike. They won’t tell us if he limiting, that the clause limits the should report to our government, so was targeted. I suspect, since there President and how the President can says our government. Are they going to were other people in the group—there execute or how the Executive power be on the drone strike list? I think we were about 20 people killed—that they can be exercised. need to get an answer from the Presi- were targeting someone else. I don’t One unanswered word in that Con- dent. know that. I don’t have inside informa- stitution includes the Fifth Amend- If you are going to kill people in tion on that, but I suspect that. ment to the Constitution. What does America, we need rules, and we want to Here is the real problem. When the the Fifth Amendment say? The Fifth know what your rules are because I President’s spokesman was asked Amendment says that no person shall certainly don’t want to have 7 days of about al-Awlaki’s son, do my col- be held to answer for a capital or oth- food in my house if that is on the list leagues know what his response was? erwise infamous crime unless on pre- of terrorism. There are some govern- This I find particularly callous and sentment or indictment of a grand mental Web sites that advise us to particularly troubling. The President’s jury. It is pretty explicit. The Fifth have food in our house. If we live in a response to the killing of al-Awlaki’s Amendment protects us. It protects us hurricane-prone area, we are supposed son—he said he should have chosen a from a King placing a person in the to keep some extra food around. Who is more responsible father. It is kind of tower, but it also should protect us going to decide when it is OK to have hard to choose who your parents are. from a President who might kill us food in our house and when it is not? That is sort of like saying to someone with a drone. There is something called a fusion whose father is a thief or a murderer or We were granted due process. It is center. Fusion centers are supposed to a rapist—obviously a bad thing, but not always easy to sort out the details coordinate between the Federal Gov- does that mean it is OK to kill their of who is a threat to the country and ernment and the local government to children? Think of the standard we who is not a threat to the country. If it find terrorists. The one in Missouri a would have if our standard for killing were people with grenade launchers on couple of years ago came up with a list, people overseas is that you should have their shoulders, that is easy. In fact, I and they sent this to every policeman chosen a more responsible parent. It agree completely. A person does not in Missouri. This kind of concerns me. just boggles the mind and really affects get due process if they are actively at- The people on the list might include me to think that would be our stand- tacking America. But we have to real- me. The people on the list from the fu- ard. ize there have been reports that over sion center in Missouri whom we need There is absolutely no excuse for the half of the drone strikes overseas are to be worried about and whom police- President not to come forward on this. not even directed toward an individual, men should stop are people who have I have been asking for a month for an they are directed toward a caravan of bumper stickers that might be pro-life; answer. It is like pulling teeth to get unnamed individuals. people who have bumper stickers that any answer from the President. Why is Overseas, I have no problems. If peo- might be for more border security; peo- that? Because he doesn’t want to an- ple are shooting at American soldiers ple who support third-party candidates; swer the question the way he should as overseas, by all means, they get no due people who might be in the Constitu- a good and moral and upstanding per- process. But we also have to realize tion Party. And isn’t there some irony son—someone who believes in the Con- that many—we don’t know because there—people who might be in the Con- stitution should—that absolutely no they won’t tell us the number, but stitution Party, who believe in the American should ever be killed in many of the drone strikes overseas are Constitution so much, they might be a America who is sitting in a cafe. No done when a person is walking, wheth- terrorist. American should ever be killed in their er to church, a restaurant, or along the So I think we need to be concerned house without a warrant and some kind road; they are done when a person is in about this. Things are not so black and of aggressive behavior by them. There a car driving; they are done when a white. If someone is shooting a gun at is nothing American about being person is in a house eating or in a res- us—a cannon, a missile, a rocket, a bombed in one’s sleep. There is nothing taurant eating; or they are done when plane—it is pretty easy to know what constitutional about that. a person is in a home sleeping. I am not lethal attacks are and to repel them, The President says to trust him. He even saying all those people didn’t de- and there should be no due process. But says he hasn’t done it yet. He says he serve what they got, but I am saying we are talking about people in their doesn’t intend to do so but he might. they were not actively involved in home. We are talking about people in a That is just not good enough. It is not something that is an imminent threat, restaurant or a cafe that someone is enough for me to be placated. It is not and if they were in America, they making an accusation against. enough for me to be quiet. would be arrested. If the accusation is based on how So I have come here today to speak If we think a person is a terrorist in many fingers you have on your hand, I for as long as I can. I won’t be able to America, we should arrest them. But have a problem with that standard. If speak forever, but I am going to speak here is the question: Who is a terrorist? the standard to be used for killing for as long as I can to draw attention That is why I have been so concerned Americans is whether a person pays in to something that I find really to be with a lot of people around here who cash, I have a problem with that. If the very disturbing. want to say if you are associated with standard to be used in America is being People have asked about this nomi- terrorism. The reason is that our gov- close to someone who is bad or the gov- nation process because I have actually ernment has already put out things ernment thinks is bad is enough for voted for a couple of the President’s that I think are of a questionable na- you to be killed and not even to count nominees, some of whom I have ob- ture. you as an accidental kill but to count jected to, some of whom I have had per- The Bureau of Justice put out a bul- you as a combatant because you were sonal differences with as well as polit- letin within the last year describing near them—see, here is the problem, ical differences with. This is not about people we need to be worried about. and this is no passing problem, this is partisanship. These are the people we are supposed an important problem. There was a I voted for Secretary of State John to say something about if we see some- man named al-Awlaki. He was a bad Kerry. I have almost nothing in com- thing. Who are these terrorists who guy. By all evidence available to the mon with him politically. I have dis- live among us? People who might be public that I have read, he was trea- agreed with him repeatedly on the missing fingers on one hand; people sonous. I have no sympathy for his floor. But I gave the President the pre- who might have stains on their cloth- death. I still would have tried him in a rogative of choosing his Secretary of ing; people who might have changed Federal court for treason, and I think State because I think the President the color of their hair; people who like he could have been executed. But his won the election and he deserves to get

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1154 CONGRESSIONAL RECORD — SENATE March 6, 2013 to make some choices on who is in his enumerated powers were few and de- defend, and preserve the Constitution. Cabinet. fined. The liberties we were given, He did not say: I intend to when it is I voted for the very controversial though, are numerous and unlimited. convenient. He said: I will defend the Secretary of Defense, Chuck Hagel. So there are about 17 powers given to Constitution. It is inexcusable for him There were things I liked about him government which we have now trans- not to come forward. and things I disliked about him. I fili- formed into about a gazillion or at There is an author who writes for bustered him twice before I allowed least a million new powers—we don’t The Atlantic who has written a lot him to go forward, and people have pay much attention to the enumerated about the drone program by the name given me a hard time. Conservatives powers or to the Constitution anymore. of Conor Friedersdorf. He recounts the from my party have blasted me for But the Constitution left our rights as tale of al-Awlaki’s son who was killed. doing that, but I gave the President unenumerated; they aren’t limited. He said when the President’s spokes- that prerogative. Your rights are limitless. man was asked about the strike that So I am not standing here as a Re- So when we get to the 9th and 10th killed him, the President’s spokesman publican who will never vote for a Amendments, they say specifically replied: Well, he would have been fine Democrat. I voted for the first three that those rights not granted to your if he ‘‘had a more responsible father.’’ nominees by the President. This is not government are left to the States and If that is our standard, we have sunk about partisanship. I have allowed the the people respectively. It didn’t list to a real low. President to pick his political ap- what those rights are. The 14th Amend- Cornered by reporters after this, pointees, but I will not sit quietly and ment talks about privileges and immu- White House Press Secretary Robert let him shred the Constitution. I can- nities being left to you also. They are Gibbs attempted to defend the kill list, not sit at my desk quietly and let the to be protected. which is secret, of course. We have to President say he will kill Americans on I don’t think there is a person in remember, if we are going to kill non- American soil who are not actively at- America—that is why I can’t under- combatants in America or people we tacking a country. The answer should stand the President’s unwillingness to think might someday be combatants, be so easy. I can’t imagine that he will say he is not going to kill noncombat- the list will be secret. So one will not not expressly come forward and say: ants. Think about that. He is unwilling get a chance to protest: Hey, I am not No, I will not kill Americans on Amer- to say publicly that he is not going to that bad. I might have said that at one ican soil. kill noncombatants, because that is time, but I am not that bad. All right. The Fifth Amendment says that no what we are talking about here. I am I have objected to big government, not person shall be held for a capital or not talking about someone with a ba- all government. I am not fomenting otherwise infamous crime unless on the zooka or a grenade launcher on their revolution. I was critical at that meet- presentment or indictment of a grand shoulder. Anyone committing lethal ing. I was at a tea party meeting, and jury. It goes on to say that no person force can be repelled with lethal force. I was critical of the President, but I am will be deprived of life, liberty, or prop- No one argues that point. I am talking not a revolutionary. Please, don’t kill erty without due process. Now, some about whether you can kill noncombat- me. hear ‘‘due process,’’ and if a person is ants because many of the people being Should we live in a country where we not a lawyer—I am not a lawyer—when killed overseas are noncombatants. Are have to be worried about what we say? we first hear it, we think, what does they potential combatants? Maybe. Should we live in a country where we Maybe the standard can be less over- that mean? What does it mean to have have to worry about what we write? seas than it is here for people involved due process? What kind of country would that be? in a battle, but it is getting kind of What it means is we are protected. Why is there not more moral outrage? murky overseas as well. We get protections. Is our justice sys- Why is there not every Senator coming tem perfect? No. Sometimes a person For goodness’ sake, in America we can’t just have this idea that we are down to say: You are exactly right. goes all the way through due process in Let’s go ahead and hold this nomina- our country, and we have actually con- going to kill noncombatants. We are talking about people eating in a cafe, tion and why don’t we hold it until we victed people who are innocent. Fortu- get more clarification from the Presi- nately, it is very rare, but we have ac- at home, in a restaurant. I think we need to be a little more careful. dent. tually convicted people who are inno- The power that was given by the Con- Conor Friedersdorf of The Atlantic cent. What are the chances that our stitution to the Senate was that of ad- writes: President, going through a PowerPoint vise and consent. This constitutional . . . it’s vital for the uninitiated to under- slide show and flashcards, might make provision provides us with the power to stand how Team Obama misleads when it a mistake on innocence or guilt? I consent to nominations or withhold talks about its drone program. Asked how their kill list can be justified, Gibbs— would say there is a chance. Even our consent. It is a check on the executive judicial system, which goes through all branch, but it only works if we actu- The President’s spokesman— of these processes, including a judge re- ally use it. replies that ‘‘when there are people who are viewing the indictment, a jury review- I am here to speak for as long as I trying to harm us, and have pledged to bring ing it, and then a sentencing phase and can hold up to try to rally support terror to these shores, we’ve taken that fight all of that going forward—we some- from people from both sides to say: For to them.’’ Since the kill list itself is secret, times make mistakes. What are the there’s no way to offer a specific counter- goodness’ sake, why don’t we use some example. chances that one man, one politician, advise and consent? Why don’t we ad- no matter what party they are from, vise the President he should come for- It is one thing to say: Yes, these peo- could make a mistake on this? I think ward and say he will not condone nor ple are going to probably come and at- there is a real chance that exists. That does he believe he has the authority to tack us, which, to tell you the truth, is is why we put these rules in place. kill noncombatants? probably not always true. There are Patrick Henry wrote that the Con- As a check on the executive branch, people fighting a civil war in Yemen stitution wasn’t given or written or put this power that is granted to the Sen- who probably have no conception of down to restrain you; the Constitution ate is the right to withhold consent. ever coming to America. was to restrain us. There has always The Constitution does not provide Sen- Friedersdorf goes on to say: been, since the beginning of the time ators with the specifics or the criteria But we do know that U.S. drones are tar- we first had government, this desire to of why we withhold consent. That is geting people who’ve never pledged to carry restrain the government, to try to keep left to us to decide. out attacks in the United States. the government from growing too I withhold my consent today because So we are talking about noncombat- strong or to try to keep the govern- I am deeply concerned the executive ants who have never pledged to carry ment from taking your rights. branch has not provided an answer, out attacks are being attacked over- It is interesting that when we look at that the President refuses to say he seas. Think about it, if that is going to the Constitution, the Constitution will not kill noncombatants. be the standard at home: people who gave what are called enumerated pow- The President swore an oath to the have never truly been involved with ers to government. Madison said these Constitution. He said he will protect, combat against us.

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1155 Friedersdorf continues: Finally, as these questions came for- know. I think it would be important to Take Pakistan, where the CIA kills some ward, some of the things were leaked know, if we are going to target Ameri- people without even knowing their identi- out. One of the most troubling things cans in America, if that list exists. I ties. ‘‘As Obama nears the end of his term, that came out is when Brennan and the think it would be important to know if officials said the kill list in Pakistan has President finally began to talk about being close to someone is also justified. slipped to fewer than 10 al-Qaeda targets, the drone strike program, which, ac- What if you just happen to live in the down from as many as two dozen. . . . ’’ cording to the former Press Secretary, neighborhood of somebody who is a Yet we are killing hundreds of people they were to deny that it existed for suspected terrorist? Is it OK because in Pakistan. There is a quote that I think sort of years. you were close to them? What if you When they finally came out, they brings this and makes this very poign- happen to go to dinner with a guy you told us a couple things about their in- ant. There is a quote from an ex-CIA did not know or a woman you did not terpretation of it. One, they have no agent—I think it is Bruce Riedel—who know and the government says they geographical limit to their drone says: The drone strike program is sort are a terrorist? Just because you are of like a lawnmower. You can keep strikes. The second thing is they told having dinner with them and you are a mowing them down, but as soon as the us what they thought was imminent. male between the ages of 16 and 50, lawnmower stops, the grass grows This is pretty important because a lot does that make you a combatant? again. of Americans, myself included, believe We also asked the question: Do you Some people have gone one step fur- if we are being attacked, we can re- condone the CIA’s practice of counting ther and said: For every 1 you kill or spond with lethal force. But a lot of civilians killed by U.S. drone strikes as for maybe every 1 you accidentally kill Americans think that we have to actu- militants simply because they are of whom you did not intend to kill, 10 ally be engaged in that to respond with the same age? Similar to every other more spring up. lethal force. But they told us the way question, no answer. Think about it. If it were your family their lawyers interpret ‘‘imminent’’ is We asked him whether al-Awlaki’s member and they have been killed and imminent does not have to mean ‘‘im- son was a target. No answer. they were innocent or you believe them mediate.’’ We asked how many people have been to be innocent, is it going to make you Only a bunch of lawyers could get to- targeted? No answer. more or less likely to become involved gether, government lawyers could get Part of the problem with this is that with attacking the United States? together and say imminent is not im- we are—or Congress in general is slop- I have written a couple letters to mediate. You have to understand, and py about writing legislation in general. John Brennan, who has been put up for what we should be asking the President I will give an example. When the the CIA nomination. I think it looks is, Is this your standard for America? If ObamaCare legislation was written—it like the first letter was sent January you are going to assert that you have is over 2,000 pages—but it leaves up to 25. So here we are into March, and I the right to kill Americans on Amer- the Secretary of Health, I think 1,800 only got a response when he was ican soil, are you going to assert—are times, the power to decide at a later threatened. So here is a guy whom the you going to assert—that your stand- date what the rule would be. So since President promotes as being trans- ard is that an imminent threat does ObamaCare, of 2,000 pages, has been parent and wanting to give a lot of in- not have to be immediate? written, there have been now 9,000 formation to the American people, he I am quite concerned, when I hear pages of regulations. will not respond to a Senator. They this kind of evasiveness, with this sort Dodd-Frank is kind of the same way. treat the Senate with disdain, basi- of nonresponse to questions. Dodd-Frank is a couple thousand cally—will not even respond to us, We also asked: Would it not be appro- pages. It now is going to wind up with much less the American people, when I priate to require a judge or a court to 8,000 or 9,000 pages of regulations. asked him these questions. He finally review this? We abdicate our responsibility by not responded only when his nomination See, here is the real interesting writing legislation. We write shells of was threatened. thing. We had a President who ran for legislation that are imprecise and do So when it came to the committee office saying your phone should not be not retain the power. Because of that, and it appeared as if I had bipartisan tapped without a warrant. I happen to the executive branch and the bureauc- support for slowing down his nomina- agree with Candidate Obama. But what racy, which is essentially the same tion if he did not answer his questions, happened to Candidate Obama, who thing, do whatever they want. then he answered his questions. It does wanted to protect your right to the pri- This happened also with the author- not give me a lot of confidence that in vacy of your phone, who does not care ization of use of force in Afghanistan. the future, going forward, if he is ap- much about your right not to be killed This happened over 10 years ago now— proved, that he is going to be real by a drone without any kind of judicial 12 years ago. I thought we were going forthcoming and real transparent proceeding? to war against the people who attacked about this. I think we should demand it. The us, and I am all for that. I would have I do not have a lot of anticipation or way things work around here, though, voted for the war. I would have pre- belief that we are going to get more in- is people kind of say: Yes, we will de- ferred it to have been a declaration of formation after this nomination hear- mand it, and maybe later on this year war. I think we were united in saying: ing. Some are now saying: You have we will talk about a bill or talk about Let’s get those people who attacked us gotten your pound of flesh. Let him go, getting something. What they should on 9/11 and make sure it never happens and we will keep working on this. The do is just say: No more. We are not again. problem is, once he is gone, the discus- going to move forward until we get The problem is, as this war has drug sion is over. some justice. We are not going to let on, they take that authorization of use Others in my party have been trying the President—any President, Repub- of force to mean pretty much anything. to get information about what went lican or Democratic—do this. They have now said the war has no geo- horribly wrong in Benghazi and have One of the other questions I asked graphic limitations. So it is not a war gotten some of that information but the President was: It is paradoxical in Afghanistan; it is a war in Yemen, only by using it as leverage to try to that the Federal Government would Somalia, Mali. It is a war in unlimited get the President to do what is the need to go before a judge to authorize places. honorable thing; that is, to be more a wiretap on U.S. citizens even over- Were we a body that cared about our transparent with his ways. seas but possibly not have any kind of prerogative to declare war, we would In the first letter I sent to Brennan, oversight of killing an American here take that power back. But I will tell I asked him the question: Is it legal to in America. you how poor—and this is on both sides order the killing of American citizens We have asked him how many citi- of the aisle—how poor is our under- and that you would not be compelled to zens have been killed. We have not got- standing or belief in retaining that even give your reasoning—not even ten an answer to that. They say not power here. specific to the case but any of your rea- many, and hopefully it has not been About 1 year ago, I tried to end the soning? many. But I think it is important to Iraq war. You may say: I thought the

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1156 CONGRESSIONAL RECORD — SENATE March 6, 2013 Iraq war was already over. It is. But we tional Security Act was passed. It said people. I am proud of our soldiers. I am still have an authorization of use of the CIA does not operate in America. proud of our Army. I am proud of what force that says we can go to war in Iraq Most people—most laypeople know they do for our country. But they oper- anytime. Since they think the use of that. The CIA is supposed to be doing ate under different rules. It is a much force in Afghanistan means limitless surveillance and otherwise outside the more dangerous environment they op- war anywhere, anytime in the whole United States of foreign threats. The erate under. It is different. It is still world, for goodness’ sake, wouldn’t we FBI works within the United States. dangerous in America, but policemen try to take back an authorization of They do some of the same thing. But have different rules of engagement force if the war is over? they are different groups. The CIA op- than your soldiers have. There are But here is the sad part. I actually erating in Iraq or Afghanistan does not more restrictions and restraint on got a vote on it. I think I got less than get a warrant before they do whatever what we do in our country. So that is 20 votes. You cannot end a war after it they do to snoop on our enemies. The why we say the military cannot oper- is over up here. It has repercussions, FBI in our country does. They operate ate here. because these authorizations to use under different rules, and for a reason. So when we asked the President, can We do not want them to operate in the force are used for many other things. you kill Americans on American soil United States. We are not saying the So the authorization of force says you with your drone strikes, which is part CIA are bad people, we just do not want can go after al-Qaida or associated ter- of the military, it should be an easy them operating with no rules or the rorists. answer. In fact, I hope someone is call- rules we allow them to operate with The problem is that when you allow ing him now and asking him for an an- the executive branch to sort of deter- overseas. We do not want them oper- ating in our country. swer. It would save me a lot of time mine what is al-Qaida, you have got no and breath. My throat is already dry idea. For the most part I will not be The disappointing thing is that a month ago when I asked John Brennan and I just got started. But if they able to determine that either. All the would ask him for an answer: Can the information is classified. There are a this question, as his nomination came forward, I could not get an answer. He military operate in the United States? lot of bad people. There is a war going Well, no, the law says the military can- on in Yemen. I do not know how much would not answer the question about the CIA operating in the United States. not operate in the United States. It is it has to do with us, you know, or how on the books. He should simply do the much there is an al-Qaida presence Only after yanking his chain, brow- beating him in committee, threatening honorable thing and say he will obey there trying to organize to come and the law. It is simple. But I do not get attack us. Maybe there is. But maybe not to let him out of committee does he finally say he is going to obey the why they refuse to answer it. It worries those are also people who are just law. We should be alarmed by that. me that they refuse to answer the fighting their local government. Alarm bells should go off when we find question. Because by refusing to an- How about Mali? I am not sure. In swer it, I believe they believe they Mali, they are probably worried more that what is going on here is it takes that much for him to say he is going to have expansive power, unlimited about trying to get the next day’s food power. The real irony of this is is that than coming over here to attack us. obey the law. The President has said: Don’t worry, many on the left, Senator Barack But we have to ask these questions. We because he is not going to kill you with Obama included, were very critical of have to ask about limitations on force, a drone unless it is infeasible to catch the Bush administration. They felt as because essentially what we have now you. Now that sounds kind of com- though the Bush administration is a war without the geographic bound- forting. But I guess if our standard for usurped power. They felt the Bush ad- aries. whether we kill you is whether it is ministration argued invalid aggran- We have many on my side who come practical, that does bother me a little dizement or grasping for power. John down here and say, the battlefield is bit. It does not sound quite strict Yoo was one of the architects of this, here in America. Be worried. Be enough. I am kind of worried that believing basically that the President alarmed. Alarm bells should go off maybe there is a sequester and the just says, hey, I am going to protect when people tell you that the battle- President says we cannot have tours in you, I can do whatever the hell I want. field is in America. Why? Because when the White House. Maybe he has not got Many on the left objected to that. the battlefield is in America, we do not enough people to go arrest you. He had have due process. What they are talk- Some of us on the right also objected policemen by him. He is saying he is to this usurpation of power by the Re- ing about is they want the laws of war. going to lay off the policemen. Of Another way of putting that is, they publican President. But the thing is, course, he does not have anything to do now that the shoe is on the other foot, call it the laws of war. Another way to with the policemen, so do not worry put it is to call it martial law. That is we are not seeing any of that. We are about that. But he had the policemen now seeing a President who was wor- what they want in the United States by him that he is going to lay off, so when they say the battlefield is here. ried about wiretaps not at all worried maybe it is infeasible because he has about the legality of killing Americans One of them, in fact, said, if they ask laid off the policemen so it is going to for a lawyer, you tell them to shut up. on American soil with no judicial proc- be easier to kill you. ess. Well, if that is the standard we are I know that sounds as though we But the law of posse comitatus pre- going to have in America, I am quite have gone a slippery slope beyond what vents this from happening. It is very concerned that the battlefield will be he is asking for. But if his standard is clear. It has been on the books for 150- here and that the Constitution would it is infeasible to capture you and that some-odd years. I think it would be not apply. Because to tell you the is what you are hanging your hat on, I pretty easy for the President to go truth, if you are shooting at us in Af- would be a little concerned that that ghanistan, the Constitution does not may not be enough protection for ahead and say that he will obey the apply over there. But I certainly want Americans on American soil. law. We asked Brennan the question on it to apply here. If you are engaged in There is a law called posse com- this and we got no answer. combat overseas, you do not get due itatus. It has been on the books since The answers we have gotten are al- process. But when people say, oh, the shortly after the Civil War. It is once most more disturbing than getting an battlefield has come to America, and again one of those things a lot of peo- answer, really, to tell you the truth. the battlefield is everywhere, the war ple do not think about, but it is an im- Because when the President responds is limitless in time and scope, be wor- portant thing. It says the military does that I have not killed any Americans ried because your rights will not exist not operate on U.S. soil unless there is yet at home, and that I do not intend if you call America a battlefield for all a declaration of an insurrection or a do so, but I might, it is incredibly time. civil war. There has to be a process alarming and goes against his oath of We have asked him whether the that Congress goes through. We have office. He says in his oath of office that strikes are exclusively focused on al- had this law for a long time. I will preserve, I will protect, and I will Qaida and what is the definition of Once again, the reason we do it is not defend the Constitution. It does not being part of al-Qaida. In 1947, the Na- because we think our military are bad say I intend to or that I might.

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1157 Can you imagine the furor if people bad things. I will do good things. I am ator said in a public meeting that 4,700 were talking about the second amend- a good person. people had been killed overseas. If I ment? Can you imagine what conserv- I am not disputing his motives or had to venture a guess, a significant atives would say if the President said, saying he is not a good person. But I amount of them weren’t involved in well, you know, I kind of like the sec- am disputing someone who is naive shooting at American soldiers. If they ond amendment and I intend to, when enough to think that is good enough were, by all means kill them. If we are convenient, when it is feasible, protect for our Republic, that his good inten- fighting a war in Afghanistan—which the second amendment? Or what about tions are good enough for our Republic. we have been—and if there are soldiers those who believe in the first amend- It never would have been accepted. It around the bend who are a threat to ment, if the President were to say, I would have been laughed out of the our soldiers, there is no due process at have not broken the first amendment Constitutional Convention. The Found- that point. This is not what we are ar- yet, I intend to follow it, but I might ing Fathers would have objected so guing about. We are arguing about tar- break it, or I intend to follow it when strenuously that that person would geted strikes of people not involved in it is feasible? So I have all of those probably never have been elected to of- combat. That is my concern. rules, and this is what the President fice in our country. My concern also is who is and what is answered when he was at Google Cam- Someone who does not believe that a terrorist, who is associated with ter- pus a couple of weeks ago. They asked the rules have to be in place, and that rorism. The government has put out him the question: Can you kill Ameri- we cannot have our rights guaranteed many documents now which tell you if cans on American soil? He said: Well, by the intentions of our politicians— you see something, say something. The the rules will probably be different out- think about it. Congress has about a 10- documents you see, I am not so sure side the United States than inside. percent approval rating. Think the these people are terrorists. If you see That basically means, yes, he thinks he American people want to face whether somebody paying in cash or if you have can kill Americans on American soil, they are going to be killed by a drone a store, such as one of your customers but he is going to have some rules. Do on a politician? I certainly do not. It comes in frequently and they pay in not worry about it, because he will does not have anything to do with cash, should you report them to the make some rules and there will be a whether he is a Republican or Demo- government? I can’t imagine that is process, but it will not be due process. crat. I would be here today if this were the kind of standard we are going to It will be a process that he sets up in a Republican President, because you have in our country for deciding drone secret in the White House, and I do not cannot give that much power to one strikes. find that acceptable. person. We separated the police power When it comes to some of these peo- The only answer really acceptable, from the adjudication or from the jury ple, though, I think some of the drone you know, we ask a question that could power from the decisions on innocence strikes have probably been justified. be yes or no: Can you kill an American and guilt. It is separate from the police Al-Awlaki, I think, was a traitor. This on American soil? It is a yes-or-no power, purposefully so, with great fore- is not from looking at classified docu- question. They have been very evasive. thought. ments, this is from reading the lay They have never really answered the Some transform this—and the Presi- press. By all means, he gave up on his question. But when asked it, we pretty dent has tried—Brennan has tried to country, renounced his citizenship, much knew only one answer was ac- transform this into: Oh, well, we need went overseas, consorted with and ceptable. That answer is no. I mean, if to reserve this power for when planes aided the enemy. you do not answer it, basically by not are attacking the Twin Towers. Well, One of the interesting questions answering it you are saying yes. I was that is not what we are talking about, about aiding the enemy is what exactly actually a little bit startled when I fi- Mr. President. I think you misunder- that means and what are the standards nally got the answer: Yes, we can kill stand or you purposefully obfuscate or to be. Kevin Williamson writes for the Americans on American soil. I thought you purposefully mislead. No one is National Review. He wrote an article for sure that they would be evasive to questioning whether the United States on drones that I think truly brings this the end, try to get their nominee can repel an attack. No one is ques- home if you are going to talk about through without opening Pandora’s tioning whether your local police can and want to know who are the people box. repel an attack. Anybody involved in who potentially could be killed. In But they have opened Pandora’s box. lethal force, the legal doctrine in our some ways al-Awlaki was a sym- It would be a mistake for us to ignore country, and has been historically, has pathizer, someone who aided and abet- it. It would be a mistake for us to ig- always been, that the government can ted through Internet talk and chatter. nore the ramifications of what they repel lethal attacks. That was the main thing he was ac- have done. When we separate out police The problem is that the drone strike cused of. Actually, after the fact, they power from judicial power, it is an im- program is often not about combat- said he had more direct association. I portant separation. You know, the po- ants. It is about people who may or don’t know if that is true. I haven’t lice can arrest you. They are allowed may not be conspiring but they are not seen the secret information on that. to do certain things. But the policeman in combat. They are in a car. They are What I would say is he was initially that comes to our door and puts hand- in their house. They are in a res- brought up as a sympathizer. Here is cuffs on you does not decide your guilt. taurant. They are in a cafe. If we are the problem. Many writers have said if Sometimes we do not always think going to bring that standard to Amer- you take up arms against your coun- about how important the separation is. ica, what I am doing down here today try, you are an enemy combatant. I But it is incredibly important that is asking the President to be explicit. think that is true. If you are in Af- those who arrest you are not the ones If you are going to have the standard ghanistan, have a grenade launcher on who ultimately accuse you. The court, that you are going to kill noncombat- your shoulder and are shooting at through the people, accuses you, and ants in America, come forward and Americans, you are an enemy combat- then you are given a trial to determine please say it clearly so we know what ant. You don’t get due process. your guilt. we are up against. If you are not going Here is the question: If you are in It is complicated. It is not always to do it, come up with what the easy Poughkeepsie and you are on the Inter- clear who is innocent and who is answer is: I am not going to kill non- net, and you say I sympathize with guilty. Judges and juries make mis- combatants. That would have been some group around the world that takes. But at least we have a process. easy for him to say. doesn’t like America, and say bad You get appeals most of the time. We He could have said the military at things about America, are you a trai- have a significant process going on some point in time needs to repel inva- tor? I mean, you can try someone for that has a several-hundred-year tradi- sions. We know that. We are not ques- treason for that. I am not sure if it will tion at the least. So what gets me tioning that. We are questioning a rise up to that if you are politically op- about the process that the President drone strike program—we don’t know, posed to what your government is favors is, it is the ‘‘trust me’’ process. because nobody will tell us the num- doing in favor of another. Kevin You know, I have no intention of doing bers. The numbers are secret. One Sen- Williamson gets it pretty clearly:

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1158 CONGRESSIONAL RECORD — SENATE March 6, 2013 If sympathizing with our enemies and ing al-Awlaki was involved with these head of the FBI, the CIA, everybody propagandizing on their behalf is the equiva- other people and taking the govern- gets a medal. No one was ever fired. lent of making war on the country, then the ment’s word, we have no way of Some of you may remember there Johnson and Nixon administrations should ascertaining or questioning whether was a 20th hijacker. His name was have bombed every elite college in America. the secret information is true or not Moussaoui. He was in Minnesota, and During the 1960s, that is all that true. A few years before this—and a lot they captured him a month in advance came out was anti-America, antiwar. Is of people don’t remember this—al- of 9/11. When they captured him, the objecting to your government or ob- Awlaki, who was killed a couple years FBI agent there—who was spot on—was jecting to the policy of your govern- before this, was brought to the Pen- doing an excellent job. The agent who ment sympathizing with the enemy? tagon to speak as a part of a group of should have received the medal was the Some were openly sympathetic. No moderate Islamic preachers. They FBI agent who caught Moussaoui and one will ever forget Jane Fonda swiv- thought him to be an Islamic voice of was asking his superiors to get a war- eling around in North Vietnamese ar- reason. He even came to the Capitol rant. He asked repeatedly. He sent 70 mored guns, and it was despicable. It is and said prayers in the Capitol. This is letters to headquarters, saying: May I one thing if you want to try her for the guy who the government said was a have a warrant to open this guy’s com- treason, but are you going to drop a good guy for a while and later said he puter, to investigate him? He was drone Hellfire missile on Jane Fonda? was a bad guy. I think ultimately the turned down. He got no response. It Are you going to drop a drone Hellfire evidence he was a bad guy is pretty was a horrible and tragic human error. missile on those at Kent State? strong. Most of his crime was sympa- What do we do? We promote and give Our country objected to what hap- thizing. medals to the people who were in pened at Kent State, which was not It wasn’t enough of a standard. I charge. That agent should have re- good—but it was accidental since they think in a court, in a treasonous court, ceived a medal, but anybody above him were shooting over the heads of these al-Awlaki would have been convicted of who made the decision not to even ask people. Can you imagine we have gone treason if I were a juror. I would have for a warrant shouldn’t have gone any- from a country that was rightfully voted he was committing treason, and where within the department. upset about the deaths at Kent State I wouldn’t have had trouble at all with Williamson makes the point if our to a country which now is going to say, a drone strike on him. law enforcement and intelligence agen- if you are in college and you are rabble If we are going to take by extension cies—particularly the State Depart- rousing because you don’t like the gov- the standard we used in putting him on ment—had been doing a minimally ernment’s foreign policy or the govern- the list that he was a sympathizer, agi- competent job vis-a-vis visa overstays ment’s war actions, you are sympa- tator, and a pain in the royal you- and application screenings, at least 15 thizing? There are a lot of questions know-what on the Internet, there are a of the 9/11 hijackers would have been that aren’t being asked, because sym- lot of those people in America if that is caught. They were all on student visas, pathizing appears to be used as a stand- going to be our standard. and they were all overstaying their ard for the drone strike program. That is why I would feel a little more student visas. Nobody was paying at- We actually had students, apparently comforted if it weren’t an accusation tention. I still ask that question today. during the Vietnam war, who were ac- by a politician who unleashes Hellfire I ask, do we know where all the stu- tually raising funds for the Vietcong. missiles. I would be a little more com- dents are, particularly from about 10 That does to me sound like treason. It forted—and I think we would all sleep Middle Eastern countries? The stu- sounds to me something like we are a little better in our houses at night— dents who aren’t from our own coun- fighting an enemy and you are giving if we knew that before the Hellfire mis- try, do we know where they are? I comfort to the enemy. That does sound sile comes down, a policeman would think we have not a good enough sys- like treason. I have no problem with come to your door and say we accuse tem to know where they all are, wheth- some people actually being tried for you of this. They might put handcuffs er they have come and gone. This is a treason, but they get a day in court. on you and take you to jail, but they real problem. They don’t get a Hellfire missile sent don’t get to summarily execute you. Had we actually looked at to their house. There is a difference, That is all I am asking. I am asking Moussaoui’s computer? They did; they though, between sympathizing and tak- for the President to admit publicly he looked at it on September 12. The day ing up arms. Most people around here is not in favor of summary executions. after 9/11 they looked at his computer. who want to justify no rules, America That is really all I am asking, about I think it, within hours, led them and is a battlefield, no limits to war—they summary executions of noncombat- linked them up to several hijackers in really want to blur it all together. It is ants. It seems like a pretty easy an- Florida and ultimately would have per- easier to say, oh, you don’t want to swer. haps exposed the whole ring. stop anybody who is shooting at Amer- We could be done with this in a mo- The same thing was going on in Ari- icans, but it is not true. I think lethal ment’s notice if someone will call the zona at the same time. They had some- force may be used against those en- President and ask the question. We body in Arizona saying there are guys gaged in lethal force. could be done with this because that is who want to fly planes and don’t want What troubles me about the drone what I want to hear, not that he is to learn how to land them. strike program is quite a few—I don’t going to use the military to repel an There were horrible and tragic occur- know the number—the Wall Street invasion. Nobody is questioning the au- rences that happened, human break- Journal says the bulk of the attacks in thority of the President to repel an in- down. How do we fix it? We fix it the Afghanistan has been signature at- vasion. I am questioning the authority same way we do everything in Wash- tacks. This means nobody was named, of the President to kill noncombatants ington: We threw a ton of money at it, nobody specifically was identified, and asleep at home, eating in the res- and I mean a ton of money. Billions civilians aren’t really counted. This is taurant, or what-have-you. upon billions and into the trillions of because anybody, any male between One of the things Williamson brings dollars have now been spent. Really the the age of 16 and 60, is a combatant un- up in his National Review article main problem with 9/11 was a lack of less otherwise proven. If those are the again—which is a little bit off the sub- communication, lack of trying, lack of standards, I think we need to be ject but somewhat related—we were doing a good job at what you were al- alarmed. I think there is a difference fearful and we didn’t do a very good job ready supposed to be doing. between sympathizing and taking up with 9/11, frankly. September 11 oc- When we look at this issue, and as we arms. curred because of a lot of mistakes, and go forward from here, I think what is One of the interesting things Kevin some of you could look back as a Mon- most important to me is we not let this Williamson and the National Review day-morning quarterback and say, oh, go. This is the first time I have decided brings out, and it is sort of a conun- we should have done this. to come to the floor and speak in a drum for conservatives—because say- One of the things that sort of both- true filibuster. People talk about fili- ing someone was involved and just tak- ered me about 9/11 was no one was ever buster all the time. They say the fili- ing the government’s words, like say- fired. In fact, they gave medals—the buster is overused and it is abused. A

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1159 lot of times the filibuster in our coun- thority of Congress unless there is an that said: These are our powers, and we try and in the Senate is actually re- imminent threat to the country. I are not giving them up. There were questing 60 votes happen and we need guess we should be a little wary of his people on both sides of the aisle who to do everything by unanimous con- ‘‘unless’’ now, since we know imminent would stand firm and say: This is not a sent, so it almost never happens. I have doesn’t have to be immediate and im- power I am willing to relinquish; this is been here 2 years, and I don’t think I minent no longer means what humans not something that is good for the have ever seen anybody come to the once thought imminent meant. But country. And by relinquishing the floor and speak in a filibuster as I am Candidate Obama did say that the power of Congress, we relinquish some- doing today. I think it is important, President doesn’t go to war by himself. thing very fundamental to our Repub- though, and I think the issue rises to I think it would be fair to say that lic, which is the checks and balances such an occasion. There are a lot of Candidate Obama also felt the Presi- that we should have—checks and bal- things we disagree on, Republicans and dent didn’t have the authority to im- ances to prevent one body or one part Democrats. I think there are a lot of prison you indefinitely without a trial. of the three parts of government from things we could actually pass up here, And I think it is also safe to say that obtaining too much power. So there a lot of things we could actually agree Barack Obama of 2007 would be right was a time when we tried to keep that to we could pass if we get together, try down here with me arguing against power. to do smaller bills, work on what we this drone strike program if he were in Unfortunately, the bipartisanship we agreed and get away from some of the the Senate. It amazes and disappoints have now, many in the media fail to empty partisanship. me how much he has actually changed understand. They see us not getting The reason I came to the floor today from what he once stood for. along on taxes and on spending, but to do this is because I think certain But I forced a vote on his words. I they fail to understand that on some- things rise above party politics. Cer- took his exact words. We quoted him thing very important—on whether an tain things rise above partisanship. and put those words up on a standard individual has a right to a trial by I think you are right to be secure in next to me, and we voted on a sense-of- jury, whether an individual has the your person, the right to be secure in the-Senate that said: No President right to not be detained indefinitely— your liberty, the right to be tried by a shall go to war without the authority there is quite a bit of bipartisanship, jury of your peers. These are things of Congress—which basically just re- although usually in the wrong direc- that are so important and rise to such states the Constitution. Now, you tion. a level we shouldn’t give up on them would think that would be a pretty Now, I will say there is some evo- easily. I don’t see this battle as a par- easy vote for people. I think I got less lution and some trend toward people tisan battle at all. I don’t see this as than 20 votes. That is the sad state of being more respectful of this, and there Republicans versus Democrats. I would affairs we are in. There were some who has been some work on both sides of be here if there were a Republican actually probably believed that but re- the aisle that has brought together President doing this. fused to vote for it because they said: some of us who believe in civil lib- Really, the great irony of this is Well, he is a Republican, and I won’t erties. President Obama’s position on this is vote with a Republican. But I honestly There was a bill last year called the an extension of George Bush’s opinion. tell you, were the shoe on the other national defense authorization bill. In It basically is a continuation and an foot, were there a Republican President that bill, there was a clause that said expansion of George Bush’s opinion. here and I a Republican Senator, I Americans can be indefinitely de- George Bush was a President who be- would have exactly the same opinion. tained. What does that mean? Well, it lieved in very expansive powers, some My opinion today on drone strikes means forever, basically, or without a would say unlimited. He was accused of would be exactly the same opinion trial, no sort of sentence, no sort of ad- running an imperial Presidency. The under George Bush. And I was critical judication of guilt or innocence, an irony is this President we have cur- of George Bush as well. Were there a American citizen can be held. So there rently was elected in opposition to Republican President now, I would was another Republican Senator on the that. This President was one elected have the same instinct and the same floor, and I asked the question: Does who, when he was in this body, was resolution to carry this forward. And that mean an American could actually often very vocal at saying the Presi- on the issue of war, it is the same no be sent to Guantanamo Bay from here, dent’s powers were limited. matter which President. someone who is accused of something When I first came here, one of the One of the complaints you hear a lot but never gets a trial? And his answer first votes I was able to receive was a of times in the media is about there was yes. His answer was yes, if they are vote on whether we should go to war being no bipartisanship in Congress. a danger to the country. without congressional approval. The Well, the interesting thing is, actually, The problem with that kind of think- interesting part is that the war was be- there is a lot of bipartisanship in Con- ing is, who gets to determine whether ginning in Libya. It turned out to be a gress. If you look at people who don’t you are a danger? Who gets to deter- small war, but small wars sometimes really believe in much restraint of gov- mine whether you are guilty or inno- lead to big wars. In fact, that was one ernment as far as civil liberties, it cent? It sort of begs the question of of Eisenhower’s admonitions, to beware really is on both sides. So you will find what our court system is set up to do, of small wars, that you may find your- that often on these votes on whether which is to try to find guilt or inno- self in a big war. Fortunately, the the Constitution says we have to de- cence. Guilt or innocence isn’t always Libya war didn’t turn out to be a big clare war in the Congress, Republicans apparent, and sometimes an accusation war, although I think it is still a huge and Democrats vote overwhelmingly is a false accusation. Sometimes accu- mess and it is still yet to be deter- against that. sations are made because people politi- mined whether Libya will descend into Now, you need to realize the implica- cally don’t like your point of view. So the chaos of radical Islam. I think tions of that. What they are voting for the question becomes, should we have a there is a chance they may still de- is to say we don’t retain that power process where we try to determine in- scend into that chaos. and we don’t want it. The Constitution nocence or guilt? But when the question came up about gave it to us, but we are giving it back. So in the national defense authoriza- going to war in Libya, there was the And this has been going on for a long tion bill, there was an amendment that question of, well, doesn’t the Constitu- time, really, probably for over 100 said you can be indefinitely detained, tion say you have to declare war? And years, starting with Woodrow Wilson, an American could be sent to Guanta- so we looked back through some of the who sort of grabbed for Presidential namo Bay, and we had a big fight over President’s writings as a candidate, power, and Presidents have been get- it. We lost the first time around in and one of the President’s writings I ting more and more powerful for over 2012. We had an amendment that tried found very instructive and I was quite 100 years, Republican and Democratic. to protect American citizens. This was proud of him for having said it. The There was at one time—point in time a good example of bipartisanship on President said that no President shall in our history a pride among the Sen- our side. We had 45 votes, and I would unilaterally go to war without the au- ate and a pride among the Congress say it was probably about 38 Democrats

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1160 CONGRESSIONAL RECORD — SENATE March 6, 2013 and about 7 Republicans. So that was These were called the Jim Crow laws. Lochner case. He basically said majori- an example of both sides kind of work- They passed laws based on race or the ties should get to rule. ing together. But we fought and we color of your skin, and these were Herbert Croly, one of the founders of lost. passed by majorities. the New Republic, wrote that we can The next year, we came back and we The important thing about the Con- get trapped up in all of this support for fought for the same amendment again stitution and about rights and one of Bill of Rights and all these ancient in- and we beat them. Interestingly, we the reasons I am here today talking dividual rights. If we get too carried beat them. We had 67 votes to say that about the fifth amendment and how it away with this whole idea of rights you cannot detain an American. An gives you the right not to be com- thing, we will have a monarchy of the American can’t be sent to Guantanamo mitted to prison or be killed without law instead of a monarchy of the peo- Bay without a trial, without an accusa- due process is that our Founders ple. tion, without a jury, without the Bill thought it was very important, this It was for good reason that we estab- of Rights. You can’t do that to Ameri- whole concept between a republic and a lished a republic and not a democracy. cans. We won the battle with 67 votes. democracy, and also considering the One of the best contrasts—it may not So the bill passes, the House passes idea that majority State legislatures be a perfect contrast, but I think it has their version without our amendment were voting on things such as the Jim some truth and validity—is that our in it, it goes to the conference com- Crow laws that would say that a White Revolution worked. In our Revolution mittee, where they work out the dif- person can’t sell a house to a Black we established a constrained govern- ferences, and they strip out our lan- person or vice versa. Those laws were ment. In France, the mob came into guage. So sometimes when you win passed by majority rule. power. They had mob rule. The French around here, you lose. So any time someone comes up to me Revolution was a disaster. But with the 67, there was a pretty and says they want a democracy, this Now, we had some things going for good mix—maybe 35, 40 Democrats and is my first question to them: You are us. We had a colonial government with 15, 20 Republicans. So there is some OK with Jim Crow, then? Because de- English common law and adjudication, emerging consensus or some kind of mocracies did bad things. But if you and we had adopted practices. We were emerging group. One of the other Sen- believe that rights are protected and Englishmen, and we believed in the ators has called it the checks and bal- that rights should be protected and rights of Englishmen. We had that for ances caucus, and I think that is a very that these individual rights are not several hundred years in our country, accurate term because that is part of something a democracy can overturn, so it was easier for us to have a revolu- what we are arguing for. We are argu- then you do truly believe in a protec- tion. They didn’t quite have that going ing that no one person should get too tion that is more important than any on in France, so it was different. But one of the differences I see be- much power or no one body will get too democratic rule. tween America and France is that we much power. There has been some dispute over established a republic, and we weren’t Some people see all that fighting and this. There was a Supreme Court case going to have majority rule where the disputing between the different by the name of Lochner back in 1905. majority was setting up a guillotine. branches of government, and they see The President doesn’t like Lochner at Ours wasn’t perfect, obviously. The it in a bad light. They say: Oh, with all all. He is very much opposed to it. But Founders left and allowed slavery to that fighting and bickering, that is the one thing about Lochner I like is still occur. Interestingly, though, if gridlock. But in some ways, our Found- that Lochner really expands the 14th you read the Constitution, I think they ing Fathers weren’t too opposed to a amendment. The 13th, 14th, and 15th amendments were passed after the were embarrassed by it. The word little gridlock, particularly if it were Civil War and usually over Democratic ‘‘slave’’ doesn’t occur in our Constitu- gridlock that said: You know what, we objection. tion. In fact, there were many aboli- are not going to make it easy to get rid In my State, the Democrats ruled the tionist writers, one by the name of of the first amendment. State legislature in Kentucky for Lysander Spooner, who actually wrote It is not easy to get a constitutional many, many years, and they voted about the unconstitutionality of slav- amendment in our country. We have against the 13th amendment, the 14th ery even before the war. And if you added some through the years, but it is amendment, and the 15th amendment. read the Constitution and acknowledge not easy to do. We make it hard to The great champions of emancipation, that there is no word in there for amend the Constitution. In fact, we of voting rights, of all of the postwar ‘‘slavery’’ and nothing that says you make it such that we are not really a amendments were the Republicans. have to be consigned to slavery—there country that is majority rule. And I Every African American in the coun- are things in there that say you can’t am sort of a stickler for talking about try was a Republican before 1930—vir- be kept without being presented with the differences between a democracy tually every African American. In 1931, charges. ‘‘Habeas corpus’’ means and a republic. I think some people are in Louisville, there were 25,730 Black ‘‘present the body.’’ sloppy with their words and they love Republicans, and there were 129 Black In the old days in England and in dif- the idea that America is a democracy. Democrats. Every African American ferent monarchies, they just snatched Woodrow Wilson said we were going to was a Republican at one point in time. you up. If you were next in line to be war in the world war to make the I try to tell people, even though the King or you made them mad, they world safe for democracy. Well, No. 1, numbers have been, unfortunately, re- snatched you up and put you into the we are not a democracy, and we were versed, we are the party that believes tower. So we came up with the right of never intended to be a democracy. in the immutability of rights. We don’t habeas corpus. You had to present the When Franklin came out of the Con- believe that the democracy can take body and say: He has been arrested, and stitutional Convention, a woman went away your rights, that a majority rule these are the charges against him. We up to him and asked him: What will it can take away your first, your second, have gotten to where there is some be? Will it be a monarchy or a democ- or your fourth amendment rights. And concern in our country about that, but racy? And he said: It is a republic. It is I think if we got that message out, we we have had that right all along. a constitutional republic, if you can might change some of what is going on. So Lysander Spooner wrote and said: keep it. He was already worrying about But the President is an opponent of Why shouldn’t a slave come forward whether democratic action would lead the Lochner decision. In the Lochner and say, this guy is keeping me; he is to people straying away and giving a decision, a State legislature decides telling me I have to work for him, but government too many powers. something, and it is not really of im- I haven’t been charged with anything. So we are a republic, and it is impor- portance what the decision is so much What is my crime? tant to know the differences between a as that it is about judicial deference, Eventually, one court case did come republic and a democracy, particularly about whether the courts should say: forward, and it was ruled incorrectly. I with our history and our country. In Well, the State legislature decided am not sure exactly how the argu- our country, we had a period of time this, and majorities should get to rule. ments were, but in Dred Scott they where majorities passed some very Many believed as Oliver Wendell ruled that you can’t make the argu- egregious and unfair and unjust laws. Holmes did, who was a dissenter in the ment. I don’t know if habeas corpus

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1161 was part of that case, but it should sion. It expands the 14th amendment do with whether you presume liberty— have been. and says to the people that you have and Randy Barnett has written about What I am trying to say, though, is unenumerated rights. restoring the Constitution—whether that the rights of the Constitution— Now, there is some dissension on how you have a presumption of liberty or the rights of the individual that were we look at these cases. But when you whether you have a presumption of enshrined in the Constitution—are im- go forward to Buchanan v. Warley, the constitutionality. That may sound a portant things that democracies can’t case about Jim Crow laws and housing little esoteric, but what does that overturn. segregation, one of the people who was mean? It is whether or not, when they When you get to the Lochner case, going to dissent—and I think he pass a law up here, you just presume it which was in 1905, the majority ruled thought better of it when he thought is fine because it is the law and the five to four that the right to make a about that he would be the first Jus- judges should give deference to it be- contract is part of your due process. tice in probably 70-some-odd years to cause it is a law. Someone can’t deprive you of deter- say that he believed in the Jim Crow It may sound confusing because you mining how long your working hours laws and was upholding the Jim Crow might think I am arguing for judicial are without due process. President laws—was Oliver Wendell Holmes. He activism. In a way, I kind of am be- Obama is a big opponent to this. But I actually writes an opinion that has cause if the Congress usurps the Con- would ask him—among the other been found but was never presented to stitution, if the Congress takes away things I am asking him today—to the Court, and he ended up voting to from your rights, the judges should rethink the Lochner case because the get rid of the Jim Crow laws, but he ac- stop them in their tracks. I am not ar- Lochner case really is what precedes tually wrote an opinion in favor be- guing for deference to the legislature; I and what the case Buchanan v. Warley cause he believed so strongly in major- am arguing for deference to the Con- is predicated on. ity rule. stitution. Buchanan v. Warley is a case from Some may think these are idle ques- I am also arguing that there is a pre- 1917—interestingly, it comes from my tions. I don’t think it is an idle ques- sumption of liberty. This goes back to State, Louisville, KY. There was a tion whether or not you have a democ- the way we want to look at the 14th young African-American attorney by racy or a republic. I think these ques- amendment. The 14th amendment says the name of William Warley. He was a tions—from Lochner, from Buchanan v. we have unenumerated rights. I guess, Republican, like most African Ameri- Warley, all the way through to the by extension, when you go from the cans were in Louisville in those days. present—are important. 14th amendment to the 9th and 10th He was a founder of the NAACP and, In the last couple years, we had two amendments is the best way to look at like most founders of the NAACP, a cases on gun rights, the second amend- this. Republican. ment, called Heller and McDonald. I The 14th amendment talks about What they did in 1914 was they sued think both of them can be seen as, once privileges and immunities, and when because the Kentucky Legislature—by again, an expansion of the 14th amend- you look at what the 9th and 10th a majority rule, by democratic action— ment to say: Your privileges and im- amendment do, they say those free- passed a law that said a White person munities which are part of the 14th doms you didn’t relinquish or those couldn’t sell to a Black person in a amendment include the second amend- powers you didn’t give to the govern- White section of town or vice versa. ment, and they include certain rights. ment are left to the States and the peo- This was the first case the NAACP In fact, I think any power or any right ple respectively, and it says they are brought up. not given up to the government or lim- not to be disparaged. I always loved the Moorfield Storey was the first presi- ited by the enumerated powers is way that was worded—not to be dispar- dent of the NAACP, a famous attorney. yours. So when they say the privileges aged. Not only is the Federal Govern- He and an attorney by the name of and immunities of the 14th amend- ment not to trample on your rights, Clayton Blakely went forward with ment, I believe that means everything they are not to be disparaged. But this case, and they won the case. It ac- else. What does that mean? It means I these rights are unlimited. They are tually passed overwhelmingly. But, in- believe in a very circumscribed view yours. You got them from your Cre- terestingly, this case to end Jim Crow for the government. ator. These are natural-born rights, was based on the Lochner decision. So One of the side benefits of having a and no democracy should be able to those who don’t like the Lochner deci- circumscribed view of the government take these away from you. sion, I would say go back. We need to would be that a government that is not Now, by changing the Constitution, reassess Lochner. In fact, there is a allowed to do much wouldn’t get in they could literally take away your good book by Bernstein from George many problems. For example, if your freedom of speech or your freedom to Mason talking about rehabilitating government wasn’t allowed to spend practice your religion. I don’t think I Lochner. money it didn’t have or if your govern- will see that ever happen, and it is dif- The thing is, with majority rule—if ment wasn’t allowed to spend money ficult to change our Constitution, but you say we are going to give deference on programs that were not enumerated it is incredibly important that our to majority rule or we are going to as being within the purview of the Fed- Founding Fathers put it in there and have judicial restraint and we are eral Government, you wouldn’t have made it difficult. going to say that whatever the major- these massive deficits. We would have I always kind of joke that if you go ity wants is fine, you set yourself up never gotten in this fix if we believed to a conservative meeting and you talk for a diminishment of rights. in a republic and not a democracy. about the second amendment, every- I go back to the discussion of the Now, what proof do I have that the body pats you on the back and they all Constitution limits power that is given current officials believe in democracy love you—until you get to the fourth to Congress, but it doesn’t limit rights. versus republic? When ObamaCare amendment. But if we are going to The powers are enumerated; your came forward, the comments from have the second amendment, I think rights are unenumerated. The powers then-Speaker of the House NANCY you have to have the fourth amend- given to the government are few and PELOSI were: A majority passed this. ment—the right to be free in your per- defined; the freedoms left to you are We passed this by majority. It is the son from unreasonable searches and many and undefined. And that is im- law. Why would anybody question the seizures, that a judge should have to portant. constitutionality? have a warrant to come in your house. What does this have to do with The President said the same thing. How are your guns going to be pro- Lochner? The case in Lochner is The President said: A majority passed tected if they can come in your house whether a majority rule—a State legis- this. What right has the court to over- without a warrant? You have to have lature—can take away your due proc- turn this? the fourth amendment. ess, your due process to contract. Can The question has been written about But you also have to have the fifth they take away your life and liberty by many brilliant scholars who have amendment. We don’t talk about the without due process? And the Court looked at the Constitution and looked fifth amendment very much. Every- ruled no. I think it is a wonderful deci- at what it means. Some of this has to thing is about the second amendment.

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1162 CONGRESSIONAL RECORD — SENATE March 6, 2013 It has been all over the news. You can’t don’t get the point of what kind of sys- now the battlefield so the laws of war turn on a channel without hearing tem our government set up, what kind should operate. about the second amendment. But I of system our Founders set up, it was The laws of war are that there really think today is as good a day as any to to make it impractical. It was to make is no due process in war. I am not argu- talk about the fifth amendment. it difficult to go to war. It was to make ing for due process in war; I think it is, I have come here to filibuster the it difficult and make it important: frankly, impossible. If you have gone nomination of John Brennan because I There would be debate and checks and as an American to Afghanistan and you think the fifth amendment is impor- balances. If inconveniency is our stand- are fighting against us, you don’t get tant. But I think we shouldn’t be cava- ard for going to war without Congress, due process. You don’t get your Mi- lier. I don’t think we should be casual inconveniency is our standard for kill- randa rights. It is an impossibility to in our disregard for the Constitution. ing Americans on American soil with have the Constitution operating in a I think that to allow the President to drones, I think we have sunk to a new battlefield. So I am not for that. trample on and shred the Constitution low. I just cannot imagine as a country But I am against defining the battle- and say that the fifth amendment no that is the standard you want to have. field as being everywhere, including longer applies is a travesty, and it is I want to reiterate. This doesn’t have my house, my office, including every- something we should not do lightly. So anything to do with the President where in America. If it is a battlefield, I think it is worth a discussion. So far, being a Democrat. Whether he was a you have no rights. The war zone is a it is sort of a one-way discussion, but Democrat or Republican, I don’t ques- zone where you do not get due process, we will see. But it is worth a discussion tion his motives. I met the President you do not get Miranda rights, you do that we talk about the fifth amend- several times. I really don’t think he not get an attorney. But it should be ment. It says that no person shall be would do this. But the thing is, I am different in our country. If our country deprived of their life or their liberty. troubled by the fact he will not tell us is a battlefield, if our country is a war That is what it means. It is pretty he will not. zone, what is left? I thought we were clear, and it is pretty plain. You can’t If he is a good man and we believe fighting to preserve our way. I thought take away someone’s life and liberty him to be a good man who would never we were fighting to preserve and pro- without due process or an indictment. kill noncombatants in a cafe in Hous- tect our Constitution. What are we So it should trouble every American. ton, sitting out in a sidewalk cafe fighting for if we are not going to pro- I can’t imagine that there wouldn’t be smoking—oh, that’s right, you are not tect our rights at home? an American in our country who would allowed to smoke cigarettes anymore— The Bill of Rights is too important to not be troubled that we are talking let’s say they are sitting out in a cafe. scrap it. The Bill of Rights is too im- about killing noncombatants in Amer- If the President is not going to kill portant to let any President, Repub- ica with drone strikes. We have to get them, why would he not say he is not lican or Democrat, simply come for- the President to respond to this. I going to kill them there? That is the ward and say: Well, I have not broken don’t think it is good enough for the troubling aspect of this, if the Presi- the Constitution yet, and I do not in- President to say: I haven’t done it yet. dent will not acknowledge he is not tend to break the Constitution, but I I don’t intend to do it, but I might. going to kill noncombatants in Amer- might because they are everywhere and His oath of office says he will pre- ica. the battlefield is everywhere and we serve, protect, and defend the Constitu- The real problem with this is we are are so frightened that we must do any- tion. The oath of office doesn’t say: now engaged in a limitless war. A lot of thing. Well, I intend to when it is convenient. Americans may not know this but peo- I think it is good to be angry, upset, I have never seen a President go out on ple all the time up here are saying it. really to want vengeance sometimes the lawn with the Chief Justice and You have to read between the lines against people who attack you. I was say: I intend to follow the Constitution sometimes to hear what they are say- all for punishing those who attacked us when it is convenient. Because what he ing. They are saying there is no geo- after 9/11. But I think, also, at the same says is he won’t drop a Hellfire missile graphic limit to the war. That is what time we need to not let that get in the on you unless it is infeasible to capture Brennan has said. What does that way of what is our way of life and what you. That is what they are doing over- mean? I thought we went to war in Af- we are protecting here. When we look seas. If that is going to be the standard ghanistan. I really thought that even at this and we look at what is going on for America, if you are not going to get at the time. I was not here, but I would with terrorism, we need to keep in per- a Hellfire missile dropped on you un- have voted to go to war. I thought they spective that these people can do us less it is infeasible—to me, that sounds were voting to go to war to get the peo- harm, but they are incredibly weak like unless it is convenient; if it is in- ple who attacked us on 9/11. I was all people. They are incredibly cowardly, convenient. ‘‘Not feasible’’ sounds like for it. I still am all for that. But we are in a way. You know, they have no ar- inconveniency is the standard. now using that resolution to go to war mies. They have the ability to inflict I asked Secretary Kerry about this in to have no geographic limit for drone terrorism, which is what weak people his nominating process. I said: Can you strikes anywhere in the whole world; do. People who have no armies and no go to war without Congress approving and not only no geographic limit, no strength attack the civilians. It is a of it, without a declaration of war, like temporal limit, which means no weak and cowardly way to attack your the Constitution says? And he said: No. timeline. There is no end to the war in enemies. But it is not something that I intend to obey the Constitution—ex- Afghanistan. The war will never end. we should cower so much that we say: cept for when I don’t intend to obey If you have no geographic limit— Gosh, someday they may come and the Constitution. It is hard to get many on my side say the battlefield is blow up the Senate, which would be things through Congress, and it is everywhere, and the battlefield is in terrible. Congress’s fault. There are too many the United States. It is one thing to I think the things terrorists do are squabbles and so many fights. So most say that, but realize what they mean terrible, but I am not saying that be- of the time we will come to Congress by that. They say because the battle- cause we are so frightened of them and we will ask for a declaration of field is here, the laws of war apply. coming that we should say: Why don’t war—which, by the way, we have not That is what a drone strike is. A drone we just have camps again, you know? done since World War I, and when we strike is not something you do domes- Why don’t we just round up—the Japa- did, it was voted on nearly unani- tically. They are saying the laws of nese Americans were a threat in the mously. war apply. war and we just rounded them up and, But this is the standard we get to: We If you change the words around, what guess what. No Japanese Americans at- don’t intend to kill anyone and we are the laws of war? Martial law. I tacked us, so it must have worked. I don’t intend to go to war without a think if you ask Americans are you in think it was an abomination what we declaration of war unless it is imprac- favor of martial law by the President, did, one of the worst and most tragic tical to get your approval. I don’t think many would be. But many episodes in our history, and the fact That was the point. If you do not get in this body would gladly give up their that the courts upheld it. But are we so the point of the Constitution, if you power, would gladly say America is frightened we are going to give up on

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1163 our Bill of Rights? Are we so frightened George Will recently wrote, and he at the founding of our country that the next thing we are going to do is sort of put a twist on it, and he said will be there in 100 years or 1,000 years round up people of a different skin that used to be true, but now I think from now: Your right to be secure in color because we think they have cous- you are getting more government than your person, the right that the govern- ins who live in Lebanon? you pay for. That is sort of the truth. ment cannot take away these privi- We cannot really give up on what We get a ton of government. Our taxes leges. makes America special. What makes cover about 60 or 70 percent of what we This is not a new fight. Really, from America special is the Bill of Rights. spend up here. What kind of country the beginning of time there has been a What makes us special is really that gets rich borrowing 30 cents on every struggle with the people versus the we are not a democracy. There are a dollar? What kind of family can spend leaders. The leaders always want more. lot of democracies around the world. 30 percent more than comes in? The amazing thing is it is sort of like We are a republic. We are a constitu- Some things are pretty simple. a contagion. Not many people get to be tional republic. We are a country that Wealth accumulation for you or wealth President in this country. One person enshrined our rights, took care and de- accumulation for a country is by sav- gets to be. We have had in the forties— liberation and wrote down our rights, ings. You don’t get wealthy by spend- 44 or 45 Presidents. We have not had and they are not supposed to be ing more money than comes in. So as many Presidents. But there is some- usurped by any majority. So it is im- we look to these things, I think we thing contagious about the office. It is portant that we know we are not a de- need to be cognizant of the reasons we that power corrupts, I think. mocracy, we are a constitutional re- would want to have smaller, not big- Lord Acton said it is not just that public. It is important for me to know ger, government. But we would have power corrupts, but that absolute and say that my rights came from my smaller government if we paid atten- power corrupts absolutely. Creator. You don’t have to agree with tion to the rules. I think people can become intoxi- me on that. Some people think they The rules are very important, and cated with power. I don’t know if that came naturally to them, but they when people talk about ‘‘oh, that is the explanation for President think there is a natural state of being would be a monarchy of the law,’’ or Obama’s about-face. He was one who at that is free. they say ‘‘that would be too rigid to a time when he was in this body be- We do give up some freedom. We give live under the laws, we need a living, lieved in some restraint, believed in up some freedom to pay taxes. If I breathing, evolving Constitution,’’ I Senate authority, believed in—actually work, all of my labor is mine, and I think things change over time. You get he did not even believe in raising the give up some of my labor and some of new technologies; drone strikes and debt ceiling when he was here. The my wages to a government. To live in things are new technologies. But I thing is, what we would hope for is a civilized world you do give up a little think what does not change are certain someday we have a President who be- bit. But what I have always argued for freedoms that are going to be the same lieves, even after assuming office, that is that we should minimize what free- now as they will be in 10,000 years. the powers of the office should be pro- dom we give up. That is why you I think the freedom for people to tected. I think we run the risk, as we should always minimize taxes. You worship is something that I don’t want allow more and more power to gravi- should minimize the size of your gov- majority rule to decide. You say: What tate to the President, we run the risk ernment because everything you give does the freedom to worship have to do of living under an imperial Presidency. up in taxes or everything you give up with drone strikes? It is hard to wor- I have said some inflammatory state- to your government is loss of your ship after a Hellfire missile has been ments: that the President is acting like sweat equity, your labor. It is yours. It launched on you. a king. Some of that is inflammatory is nobody else’s. So you give up the So all of our rights—there is a pan- and provocative, but some of it has very minimum of it. oply of rights that are all inter- some ring of truth to it or I would not There is another argument. That is connected, and they come from the get so much push-back. Kings operate sort of the freedom argument for why basic right to life. If you don’t have the by edict. They say it is so; make it so. we should keep government minimized. right to be secure in your person, you There is no give-and-take. There are no The other argument for why we should don’t have any other rights. So as we checks and balances between the legis- keep government minimized is more of diminish one right we attack at the lature and the Presidency. an efficiency argument. This comes foundation. But if we are at a founda- This has been going on for a long from Milton Friedman, but I think he tion where we are saying we can strike time. It is a titanic struggle and, put it very succinctly. He said nobody a person in America with no trial, with frankly, I wish more people were inter- spends somebody else’s money as wise- no accusation, I think we have come a ested in it. I wish we had a dozen peo- ly or as frugally as you spend your long way from where we began. ple down here saying: No President own. I worry about it. I worry about it not should assume such authority. No It is a simple statement, but I think just in the abstract sense, not just in President has the right to say he is in one statement, one simple sentence, the sense that these are a right in ab- judge, jury, and executioner. No Presi- it sort of brings forward something stract and that we lose something we dent should be allowed to say that. about government that is very true. cannot actually touch or feel. I worry It is not enough for him to say: My People up here just do not spend it really about it in the sense that I don’t motives are good. I don’t intend to do wisely. The reason they don’t spend it know how you continue to exist as a so. I haven’t done so yet, but I might. wisely is because it is not theirs. In country if you do not believe in some If that is the standard we are going fact, they have a perverse and wrong- fundamental right, some fundamental to live under, we have a great danger in headed incentive that says: I need to right and wrong. our country. It is not enough. We live spend all of my money or I won’t get it After ObamaCare passed and there under the rule of law, and the law is next year, so government agencies in- were some questions about its con- quite explicit. The fifth amendment credibly want to spend all the money stitutionality, they asked a Represent- says no person shall be detained with- and more to make sure there is nothing ative from the House side—he was out an indictment or without due proc- left at end of the year. asked: What about constitutionality? ess. If you listen to some people, they He said: Why would I care? Most of the I find the answer to be incredibly would say: Oh, no, government is just things we do up here have no constitu- easy. I have asked the President an here to help people. Without govern- tional justification. easy question. My question is, Can you ment it would be—without this mas- We have gotten to the point where kill an American on American soil, a sive huge government—we have to have people care more about having enough noncombatant, with a drone strike? It the debt because we need all the things votes. They think it is right if you should be an easy answer. we get from government. Will Rogers have a majority vote as opposed to (Mr. HEINRICH assumed the chair.) once wrote and said: ‘‘You’re lucky you that there are certain immutable When a President will not answer a don’t get all the Government you are rights and wrongs; that there are cer- question or when they answer the ques- paying for.’’ tain immutable rights that were there tion and it is an evasive answer, our

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1164 CONGRESSIONAL RECORD — SENATE March 6, 2013 concern is if they answer yes. I thought the same standard? Some say there is house somewhere. They did not find a they would never answer the question, no standard once we get outside the match on any of the fragments with but they finally did. They said: Yes, we country and that anybody can be killed their fingerprints on a database until can conceive of situations when we whether they are an American citizen after we caught them. Once we knew might. The situations they conceive of, or not. their names and had their fingerprints, though, are attacks on the country, Frankly, I don’t like the idea of no we checked some fragments for their which I don’t disagree with, so they are standard. For example, the most fingerprints that had been in a ware- talking about things that are not con- prominent American who was killed house for years and years. So we are troversial. overseas was al-Awlaki. His name was not quite doing the job. If planes are attacking the Twin publicly known to be on a kill list for Sometimes we want to analyze so Towers, New York or DC, there is not months. I see no reason why he could much information that we get over- any question on either side of the aisle not have been tried in a Federal court whelmed with the information too. We among almost anybody in the country expeditiously—if he didn’t return collect millions and millions and bil- or the universe who doesn’t believe we home, he would still be tried—given lions of pieces and bits of information, can repel lethal threats. What we are representation, and tried for treason. but it cannot all be analyzed. Some of talking about are the noncombatants These are not frequent cases that occur it, I fear, goes against our rights to pri- who are either eating dinner, sleeping overseas, so I see no reason why we vacy. Any of our e-mails that are over in their house or walking down the would not use a Federal court. The 6 months old can be looked at. We street. A large percentage of the drone Federal courts are adapted in such a found out about this recently when we strikes have been people who were not way that we can go into secret session had an adulterous affair in our mili- carrying arms or in combat. if there is classified material. The Fed- tary. I believe our third-party records are Were they bad people? I am not posi- eral courts in Washington, DC, Phila- ours. I had an amendment recently on tive I could say one way or the other, delphia, and New York have done this this, and I told people my Visa bill is but I don’t want that sort of standard on occasion. I think we could do this in pretty private. Just because I use my to be used in America. I don’t want the Federal court. We have convicted quite standard to be that if someone is close Visa card doesn’t mean I have given up a few terrorists—I think that they my information and that the govern- to a bad person who happens to be a number up to several hundred—in the ment gets to look at my Visa bill every male between the ages of 16 and 50, United States in our courts. month, but that is what we have done. that they are no longer a civilian but The main thing I object to is people A lot of these things have been slipping actually a militant. Is that the stand- becoming so fearful they cavalierly away from us for a long time. It is not ard we are going to use in America? give up their rights. We had two terror- just President Obama; it is 40 or 50 I don’t want the standard to be sym- ists in Bowling Green, KY, my home- pathizing. Has anybody ever been on years of court cases. town, which has 50,000 people. Who Thirty, forty or fifty years ago, we the Internet? Has anyone ever seen would have thought we would have two decided that once a third party had crackpots who are on the Internet and terrorists? They were conspiring to ei- your records, they were not private say all kinds of crazy things? If some- ther buy or send Stinger missiles to anymore. I think that is absurd. Think one is saying crazy things and they Iraq. I am glad they were caught and of the age we live in and how a lot of happen to be against our government, punished. They were tried in a court. people don’t use cash at all. Our Visa is that enough for a Hellfire missile to Many people said let’s just send them cards have everything on it. We can come down on their house? Is sympa- to Guantanamo Bay forever. Once we look at a person’s Visa card and find thizing enough? People have written go down that path where we are not out if they have seen a psychiatrist, and talked about this. During the Viet- going to have any due process—our what kind of medicines they are on, nam war there were some people who courts have done a pretty good job. In what kind of magazines they get, what probably were treasonist and probably fact, I think we have not let off any- kind of books they get. We can look at should have been tried for treason. body from one of our courts that a person’s Visa bill and find out if they Having said that, I would not kill them should have been kept here and tried. gamble or drink or what their travel without some sort of due process or I do have a question as to how the plans are. We can find out a ton of in- trial. The idea of a right to trial by terrorists got into the country. That formation on a person’s Visa bill. jury has been the basis of our history goes back to the issue of not wanting Should people be allowed to look at a for hundreds and hundreds of years. It terrorism to occur, but how should we Visa bill, without asking a judge, and is the basis of a foundational principle combat it? Is it best if we combat it in then say: We think he is involved in for our country. I cannot imagine we Yemen, Mali, Somalia, Afghanistan, this. We are not saying we cannot do would be so cavalier as to let it go. Pakistan or should we combat ter- this for a terrorist, but what we should As we move forward with this nomi- rorism by knowing who is coming into do is go to a judge and present some nating process, I have decided to oc- and leaving our country? evidence and say we think he is a ter- cupy as much time as I can on the floor For example, we have allowed 60,000 rorist and we want to look at his Visa to bring attention to this issue. Ulti- people from Iraq to come into this bill. People in America should not be mately, I cannot win. There are not country in the last 2 or 3 years. Frank- able to have their Visa bill open to enough votes. There would be if there ly, I think that is a lot. They come scrutiny, and that is basically what we was truly an uprising of bipartisan sup- here under asylum. The problem with have now. Our banking records, our port that would come to the floor and asylum is I thought asylum is when a Visa statements, and all our records say: It is not about John Brennan. It is county was escaping a dictatorship. We that are held by a third party are not about a constitutional principle and we won the war in Iraq. They have a demo- protected. are willing to delay this until the cratic government over there, and I Some people may have heard about President can explicitly say non- would not understand why they would how they want to have cyber security. combatants in America will not be want to leave a democratic govern- Everybody wants their computers to be killed with drone strikes. I think that ment. Also, the 60,000 who leave—other secure, including the computer compa- is pretty easy to answer, but it has than maybe the two we captured in nies. They work nonstop trying to keep been like pulling teeth. Bowling Green, we presume that most hackers out of computers, but the law I have written letter after letter for of them are pro-Western—are the peo- they want to pass gives immunity to weeks and weeks trying to get an an- ple we want to run Iraq. There are all the computer companies. A lot of us swer on this and we have not had much kinds of reasons to stay in Iraq to run don’t think much of it. We check off luck. There have been people who have the country. the confidentiality button and hope written about the lawfulness of these In letting so many people come in, that after we have signed the contract, lethal operations directed against citi- we didn’t do a very good job because they will not share it. They share it in zens, and there is a question both in the two terrorists who were allowed to a way that is anonymous, and we put the country and outside the country of go to Bowling Green had their finger- up with that in order to get a search what the standard will be. Will it be prints on an IED that was in a ware- engine. I am OK with that.

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1165 What I am concerned about is when aiming a gun, a missile or a bomb at might be terrorists—and I don’t know, we pass the cyber security bill, we can- you, there is an imminent threat, and they don’t have to be an imminent not sue them if they breach the policy. no one questions that. No one ques- threat or an immediate threat, but So then everybody’s computer, tions using lethal force to stop any some of these people might be terror- searches, and reading habits are open kind of imminent attack. We become a ists. I don’t know. If the President is to the Federal Government. Because little bit worried when the President going to kill these people, he needs to we are fearful of people coming at us says imminent doesn’t have to mean let them know. Some of the people who and fearful of attacks, we give up our immediate. When that happens—and might be terrorists might be missing rights. I thought we were fighting to then we see from the unclassified por- fingers. Some people may have stains preserve our rights. tion of the drone attacks overseas— on their clothing or some people may So what are we fighting for? These many of these people are not involved have changed the color of their hair, battles are going on and on throughout in combat. They might someday be in- some people may have accumulated the government. The interesting thing volved in combat, they might have guns, some people may have accumu- about these battles is that they are not been involved in combat, but when we lated weatherized ammunitions, which always Republican v. Democrat. These kill them, most of them are not in- might be half the hunters in the South are battles that are sometimes coali- volved in combat. So even overseas this time of year, or people who might tions of people from the right and peo- there is some question of this program, like to pay in cash, or people who have ple from the left who have gotten to- but my questions are primarily di- seven days of food on hand. I know peo- gether and fought over these issues. rected toward what we do in this coun- ple who just for religious reasons are In the case of trying to get the Presi- try. taught to keep food on hand. In fact, dent to acknowledge he will not do It says the U.S. Government can use government Web sites sometimes tell drone strikes, there have been people lethal force in a foreign country out- us to keep food on hand for hurricanes. on the Democratic side of the aisle who side the area of active hostilities. That If you live along the coast, one govern- have aligned with me and helped me is, once again, the point. We are not ment Web site says keep food on hand, get this information. The President talking about a battlefield. But be- and another one says if you do, you probably would have refused until Hell cause the battlefield has no limits— might be a terrorist. They are not say- froze over to give me anything, but the since the battlefield is not just Afghan- ing you are, but if these are the charac- fact is we had Democrats ask to get in- istan. The battlefield has no geo- teristics of terrorism, would you not be a little concerned that if the govern- formation also. Suddenly we were able graphic limits so the battlefield is the ment is putting this list out, we are to get a coalition and get the informa- whole world, and many in this body say going to drop Hellfire missiles from tion, but it has not been easy. The fact the battlefield is the United States. So drones on people in America who might that they don’t want to acknowledge once we acknowledge and admit that be on this list? I am particularly con- limitations as to the President’s power the battlefield is the United States, cerned about that. worries me that they believe in an ex- this whole idea of what is imminent So I think we can’t be sloppy about pansive Presidential power. In order to versus what is immediate becomes this. We can’t allow ourselves to be so stop that, we have to be protective of pretty important because we are talk- I guess afraid of terrorism or afraid of our rights. We have to be able to not so ing about our neighbors now. our enemies that we give up on what easily give up on our rights. The other thing about this is we need makes us Americans. What makes us There is a white paper that was writ- to try to understand who these terror- Americans are our constitutional ten, and the title of it is ‘‘The lawful- ists are. Members of al-Qaida. There rights that are enshrined in our Con- ness of a lethal operation directed are no people walking around with a stitution. It is why we have gone to against a U.S. Citizen who is an oper- card that says ‘‘al-Qaida’’ on it. There war, to defend these rights. Will we ational leader of al-Qaida, foreign asso- are bad people. There were bad people think the war still has purpose if we ciated forces,’’ and this is from the De- associated with the terrorists—and we are no longer able to enjoy these rights partment of Justice. This white paper have killed a lot of them—who were in at home? sets forth a legal framework for consid- Afghanistan training and part of the The problem as I see it as we go for- ering the circumstances for which the group that attacked us. But there are ward is that I wish I could tell people U.S. Government could use lethal terrorists all over the world who are there is an end to this, that there force. One of the things they do in the unhappy with their own local govern- would be a grand battle for our con- document—this was leaked repeat- ments—some of them are unhappy with stitutional rights or for what rights we edly—is they tell of the criteria for us too—but to call them al-Qaida is lose overseas, what rights we lose here when they can kill people overseas. sometimes a stretch and sometimes if we travel. The problem is they don’t We don’t know the criteria for killing open to debate as to who is and who see an end to the war. They see per- people in this country. They make a isn’t. petual war, perpetual war without geo- contention that the rules will be dif- Then they use other words, and words graphic limits, and they see the battle- ferent, but no one is acknowledging ex- are important. They are either a field here, so they want the laws of war actly whom they can kill or what the ‘‘member of al-Qaida’’ or ‘‘associated to apply not only there but here. In rules will be. For the people who are forces.’’ I don’t know what that means. other words, what they are saying is killed overseas by drone strikes, the Does one have to talk to al-Qaida or the laws of war are martial law. These thing they come up with is that they commit terrorism or does a person are the laws of war. These are the laws say it has to be an imminent threat, have to be in a country where we are that are accepted in war. but it does not have to be immediate. supporting the government and people We accept a lot of things on the bat- To my thinking, only a bunch of gov- are attacking the government? It is tlefield that we don’t want to accept ernment lawyers could come up with a not always clear. here. I acknowledge we accept that we definition for imminent threat that The other question we get to when it don’t get Miranda rights on the battle- says it is not immediate, so that is the is either al-Qaida or people associated field. We don’t get due process. We first problem with it. Is that going to with al-Qaida is that now we get to the don’t get an attorney. If they are be the standard that is used in Amer- United States and we have the govern- shooting at us, we shoot back and kill ica, that there has to be an imminent ment defining what they say as ter- them. But the thing is if a person is threat, but it doesn’t have to be imme- rorism. So the government has put out sitting in a cafe in Houston, they do diate? some documents, one by the Bureau of get Miranda rights, they do get accused My next question is: What does that Justice, to warn us of who might be a of a crime, they do get a jury of their mean? Does that mean noncombatants terrorist. In fact, the government has peers. That is what we are talking who we think might someday be com- programs where they want people to about here. The President should un- batants are an imminent threat? It is a inform: If you see someone, tell some- equivocally come forward and state pretty important question. What is im- one. If you see these people, you are that noncombatants—people not in- minent. There is no question of what supposed to inform on them. So some volved with lethal force—will not have imminent lethal force is. If someone is of the characteristics of the people who drones dropped on them.

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1166 CONGRESSIONAL RECORD — SENATE March 6, 2013 The other thing he should acknowl- conditions. One of them was immi- tect, defend, and preserve the Constitu- edge is the law—not only the constitu- nence, but then they qualified it by tion except for when it is infeasible or tional law but the law since the Civil saying imminent doesn’t have to be im- inconvenient. That is not what the War—has said the military doesn’t op- mediate. Another one was feasibility. rules are about. I think the rules are erate in the United States. There is a They said it is not feasible to get some pretty absolute. reason for the military not operating of these people overseas and so we kill The rules are the Bill of Rights and in the United States. Why? The mili- them. But feasibility, to a certain ex- they are ours. We got them from our tary operates under different rules of tent, could be defined as convenience. Creator. They were enshrined in the engagement than policemen. The rules So the question is, in America, what if Constitution. Nobody gets to take are stricter for policemen. We do it be- they live up in the Rocky Mountains them from us. Nobody. No President cause we are not in a war here so the and there are no roads leading up to from any party gets to be judge, jury, policemen have to call judges. A lot of where they are; they are not very ac- and executioner. people don’t think this through, cessible; it is not very feasible; so we This decision to let this go, to let though, and they will say, These people are going to do strikes based on con- this nomination go without an answer are terrible, awful people who would venience. Is that going to be the stand- is a big mistake for us. If we do this— cut your head off. They are right; they ard? if we let this nomination go without a really are bad people. We have really When we talk about standards, they debate, without significant opposition, bad people in our country too some- say they have a process in place, but without demanding more answers from times. We have murderers and rapists. the process is very important. The the President—the problem is we are But tonight at 4 a.m. if there is a rapist standard is important, but it is also never getting any more answers. There going around the neighborhood and you important that one group of people, will be some in this body who say, get to a house and there isn’t an immi- one political group of people or one Well, just let it go. The snow is coming nent thing going on but you are told he politician doesn’t get to decide that and we want to go home. The problem might be in this house, before the door standard. And part of the way the proc- is that he is never going to answer is broken down, they call on a cell ess in our country works is that there these questions unless he is forced to. I phone, they get a judge out of bed, and are checks and balances between the suspect George Bush would have been they say, we have chased him into this three branches of government so that the same. I suspect a lot of the Presi- neighborhood, no one is answering, we one branch of government doesn’t get dents would be the same. And I think it want to break the door down, can we to unilaterally decide what these is unfortunate that they see their have a warrant. Most of the time the standards are. Because some of the power and their sphere of power as police have to call for a warrant. We standards are a little bit loose—wheth- being more important than our con- have a process. But when he is ar- er you are near someone. Apparently, stitutional rights. But we won’t get rested, they don’t just string him up. we are not counting civilians who are this by just the glad hand and the win- We don’t have lynchings in our coun- killed by drone strikes if they are ning smile. That is not going to get try. We don’t let mobs decide who is males between the ages of 16 and 50. If any information from the President. guilty and who is not. The only way this President would I don’t question the President’s mo- they were close to the people we are ever give us information is if we were tives. I don’t think the President would targeting, we just count them as other purposefully take innocent people and militants. Are we going to do that in to stop this nomination. I am not even kill them. I really don’t think he would the United States? saying stop it personally. My objection drop a Hellfire missile on a cafe or a If you are eating with 15 of your fam- really is not so much to Brennan being restaurant as I have been talking ily members and one of them may or in charge of the CIA as my objection is about. But it bothers me that he won’t may not be communicating by e-mail to the program and to the President say he won’t. It also bothers me that with somebody in a Middle Eastern not admitting that he can’t do drone when he was a Senator in this body and country, can we kill all 20 of them, and strikes in America. when he was a candidate, he had a because some of them are within the I will continue to do what I can to much higher belief and standard for right age group, that is fine? Let’s say draw attention to this and we will see civil liberties and he seems to have lost you are eating with your cousin who is where things lead. But I am dis- that since he has been the President. communicating with somebody in the appointed in the President. I am one I think this is an important issue. It Middle East and that person may or who while I am a Republican—I didn’t goes beyond John Brennan. It goes be- may not be a bad person, and then vote for him in 2008 or 2012—I am one yond the President. It goes to an issue when you leave—let’s say you are who has admired certain aspects of his that rises above I think all other issues going to a wedding and you are going policy. I admired his defense of civil we consider here. I have voted for three from a preparty and there are 20 cars liberties. I admired him in 2007 when he of the President’s nominees, not be- all going to the wedding and they know said Americans shouldn’t be involved cause I agreed with them politically; in or they think they know there may be in torture. I admired him when he said fact, I disagreed with the vast major- a bad person among the group; why we should follow the rule of law and we ity, but I disagree with the President don’t we just strike the caravan? These should have warrants before we tap on a lot of political issues. I voted for are called signature strikes. The Wall people’s phones and that we shouldn’t his nominations because I think the Street Journal said that the bulk of be trolling through people’s records. President does get some prerogative in our drone strikes overseas are signa- But I find a great irony and, frankly, a deciding who his political appointees ture strikes. That is a good question great hypocrisy in someone who would are. I have chosen to make a stand on for the President: Are signature strikes defend getting warrants before we tap this one and not so much because of going to be the standard for killing your phone but won’t defend a trial be- the person but the principle of this. I Americans in America? fore we kill you. Tapping one’s phone is have nothing personally against Bren- The President simply says the rules a breach of privacy and it should only nan. I have nothing personally against will probably be different for inside be done if a person has been accused of the President. But I have a great deal than outside. Well, I frankly don’t a crime and evidence has been pre- of concern about the rights that were think that is good enough. He says he sented and a judge grants a warrant. enshrined in the Constitution. I have a has no intent to kill Americans in But killing someone with no due proc- great deal of concern about this slip- America. I frankly don’t think that is ess, with no judicial oversight—some pery slope of saying there won’t be ac- good enough. I don’t think it is good are saying, Oh, we will get to it. We are cusations, there won’t be trials, that enough for the President to say I have eventually going to set up a court, we will summarily execute people, and no intention of breaching the fifth maybe a FISA court. Unfortunately, a the question is, will we execute non- amendment. Intending not to is not the FISA court probably won’t be good combatants. If he is not going to, he same as saying I won’t. His oath of of- enough because it will be in secret and ought to say so. fice says I will not—no, it says: I will a person should have a chance to con- In this white paper that was released, protect, defend, and preserve the Con- front their accusers and have a public they talked about the three different stitution. It doesn’t say I intend to pro- trial if a person is going to be killed.

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00030 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1167 Typically what I am talking about is and we have some of the same debate local government. In our local govern- American citizens, but there needs to and problems here at home—whether ment, there was a battle over a resolu- be some oversight. But the problem of or not you can indefinitely detain. tion. The resolution said—it was in the waiting to do this and saying, Oh, we The President’s response to this was city council—the resolution said the will do this sometime, we will get to it also pretty disappointing. It would not local city government cannot take pri- eventually, never happens. The same have become law without him. I think vate land and give it to another person. way with saying, Oh, we will get to—we he threatened to veto it, and then he It was really like so many other will keep asking the President for signed it anyway. Empty threats are of things. The intention of eminent do- more information, but it never hap- no value, and he struck no great blow main was to have highways and thor- pens. If we do not take a stand for for America or for American freedoms oughfares that you might not get oth- something we believe in, it is going to by not vetoing this. But when he signed erwise, but it was never intended to slip away from us. I think our rights it, he said something similar to what take from a private owner and give to are gradually eroding. I think they are he is saying now. He said: Well, I have a corporation. That is what they did gradually slipping away from us. I no intent to indefinitely detain people. with the Kelo decision. think the understanding of the Con- Am I the only one in America who is So, anyway, local governments began stitution as a document that restrains a little bit underwhelmed by the Presi- talking about this, and I was talking to the government, that restrains the size dent saying he has no intent to detain one of my local government officials— and scope of the government, has been somebody but he is going to sign it this is probably 20 years ago, 15 years lost on a lot of people. I think it is into law saying he has the power to? ago—and their response was, but I something we shouldn’t give up on. That is the same thing we are getting would never do that. I would never When the President goes through his now in this drone strike program: take private land through eminent do- three different items that were leaked Don’t worry. Everything is OK. I am main and give it to another corpora- through this memo, he says there has your leader, and I would never detain tion. I would never do that. to be an imminent threat. He says you. I would never shoot Hellfire mis- And I believed that person. And I their capture has to be inconvenient or siles at noncombatants. I will not do really, frankly, give the President the infeasible. And he says the operation of that. benefit of the doubt. I do not question killing the person has to be conducted I can take him at his word, but what his motives. I do not think he probably within a manner consistent with the about the next guy and the next guy? will kill noncombatants. But I cer- applicable law of war. In 1923, when they destroyed the cur- tainly do not want him to claim that Here is the problem. That sounds fine rency in Germany, they elected Hitler. he has the authority to kill non- if you are in Afghanistan and in the I am not saying anybody is Hitler, so combatants. So this is a big deal. It is mountains fighting a war. But I am do not misunderstand me. I am saying a huge deal. talking about downtown Washington, there is a danger, even in a democratic So with the eminent domain, we fi- DC. I am talking about living in the country, that someday you get a leader nally passed it in our local commis- suburbs of Houston or Atlanta. Are we who comes in, in the middle of chaos, sion. It was like 3 to 2, but in my town going to have drone strike programs in and says: Those people did it. Those in Kentucky, you cannot take private America consistent with the applicable people are the mistake. Those people property with eminent domain and give law of war? are who we need to root out. it to another private individual, be- See, the other way to put ‘‘law of If the laws have been removed that cause it is not about the individuals in- war’’—and this is not a stretch, this is prevented that from happening, if the volved, it is about the fact that we do just turning the words around—‘‘mar- laws have been removed and they say: not always have angels running our tial law.’’ Now people, if you put it We can indefinitely detain—in Hitler’s government. We do not always know that way, might have a little different case, he said: The Jews, those bankers, whom we are going to get. impression. Do we want martial law in the Jews did this to us. And they were If we ask the question, Do you want our country? indefinitely detained. Now, am I saying a government that is run by majority If you go back to the battle we had this is going to happen in our country? rule or a government that is restrained over indefinite detention last year, Unlikely. I cannot imagine any of our by its documents, it is a pretty impor- where they are saying they can take a leaders, for all of our disagreements, tant question. Ultimately, there are citizen without a trial and actually doing that. But if you do not have the ramifications to majority rule, to basi- send them from America to Guanta- law to protect you, you do not have cally whatever the majority wants. namo Bay if they are accused of ter- that protection because you do not One, the majority can vote upon mi- rorism—accused, not convicted; ac- know who the next guy is and the next nority rules they do not pass on them- cused of terrorism—you start to worry guy or the next woman. selves. In fact, Martin Luther King about some of the stuff happening in When Madison wrote about this, he wrote—this is one of my favorite our country, that this could actually was very explicit. He said: We have quotes from him—he said: An unjust happen. these rules in place because we do not law is any law that a majority passes One of the sort of ironies of looking have a government of angels. If we had on a minority but does not make bind- at different governments and looking a government of angels, we would not ing on themselves. I thought it was a at what makes people unhappy—in need these rules. great statement because you could Tahrir Square in Cairo, there have I will never forget the discussion probably almost apply that to any law been hundreds of thousands of people with somebody about the Kelo case. written on any subject. If the law ex- protesting. It is interesting what they The Kelo case was a case where the cludes certain people and is not applied are protesting. One of the large things government took private property and to everyone, then by definition it is an they are protesting is something called gave it to a richer person who had pri- unjust law. What a great way to put it an emergency decree, which I believe vate property who wanted to develop succinctly and a great way that we went in place by Mubarak 20-some-odd it. Ironically, the justification they should look as far as trying to write years ago. So you get leaders who come used was blight. So they take it from rules. in, and they use fear to accumulate one middle-class person and give it to a But you have to decide as a country power, and you get a decree. So you get rich corporation, and they say they are whether you want majorities or politi- martial law. The martial law, iron- doing that to rectify blight. But when cians to decide things or whether you ically enough, in Egypt allows deten- they did that and when they came want reliance on documents and on a tion without trial. They do have the down with the ruling, it was con- process and on a rule of law that pro- right to trial, but there is an excep- cerning the logic of the way they get to tects you. tion, and it has been accepted for the this ruling, that basically they really If we rely on, basically, the whims of last 20-some-odd years, and the people do not have this right to your property. politicians, I think it is a big mistake. are hopping mad over it. So we get in- When the Kelo decision came down, If we are going to rely on the politician volved in their country and their poli- it really bothered me. But I remember basically sitting in the Oval Office tics and give them money and weapons, we started having the battle in our going through flashcards and a

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00031 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1168 CONGRESSIONAL RECORD — SENATE March 6, 2013 PowerPoint presentation to make the the laws of war here, we are going to accuse them of a crime, arrest them decision on life and death for Ameri- have martial law here—by golly, let’s and try them. cans in America, I think it is a huge have a debate about it. Let’s have a The battlefield coming to America or mistake. discussion in the country. Let’s have acknowledging that is an enormous Any people who watch trials and everybody talking about, are we the mistake. So there are some big issues, court cases realize that even courts are battlefield? Is this a battlefield? Is our some issues that we as a country gloss not perfect. It is actually amazing how country a battlefield? Because what over. We watch the nightly news. There we even get it wrong with courts and that means is that you get no due proc- is sometimes so much hysteria about trials and juries. Many States and even ess in a battlefield. so many issues, so many people yelling many people who were for the death I am not here to argue and say that back and forth. But this is an issue penalty have questioned their support you get due process in a battlefield. I that I think if we could get a frank dis- of the death penalty because of the im- am here to argue that we cannot let cussion—I have proposed to the leader- perfection of our courts. Through DNA America be a battlefield because we ship—I have not had much luck with testing, we have found we do not al- cannot say that we are no longer going this—but I proposed for a constitu- ways get it right even with that. I to have due process, that we are no tional debate or a debate of importance think in Illinois they stopped the death longer going to have trial by jury, that that everybody come, and instead of penalty after having so many DNA we are no longer going to have present- hearing me all day, we take 2 or 3 min- testings that showed there was an in- ment of charges and grand juries. It is utes and we go around the room and correct diagnosis of who had com- impossible in a battlefield. In Afghani- everybody speaks, it is limited, but mitted the crime. stan, it is impossible to say: Hey, wait there is some kind of debate and dis- So the question becomes, even with a minute, can I read you your Miranda cussion—less speechmaking and more all the checks and balances of the rights? It is impossible. We are not ar- debate. court, are you worried at all about hav- guing for that. We are not arguing for I proposed we have lunch together. I ing one politician accuse, secretly a judge or a jury or anything else. If have asked to come to the Democratic charge, I guess—if you can call it a people are shooting at our troops, they lunch. I have not gotten the invitation charge—and then execute Americans? I can do everything possible, including secured yet. It has only been 2 years so am incredibly troubled by that. I can- drone strikes. It is not even the tech- it may happen, but there are many rea- not imagine we as a free country would nology so much that I am opposed to, sons for discussion. There are many let that stand. I think it is an insult to but the technology opens doors that we reasons why we should have civility. every soldier in uniform fighting for need to be concerned with. There are reasons why people on both American freedom around the world Defense of our soldiers in war—there sides of the aisle can agree to this. If that we would just give up on ours at is no due process involved with that. we were to have a vote, maybe not on home, that the President would cava- But realize the danger to saying Amer- the nomination but a vote on restrict- ing drones—there is a bill out there lierly or incorrectly or without fore- ica is at war, America is the battle- that we are working on that would re- thought, without sufficient fore- field, because also realize the danger strict drones to imminent threats. It thought, not tell us, not go ahead and that these people—they are Repub- does not even get into the distinction explicitly say: This will never happen licans and Democrats—these people do not believe there is any limit to the of the military—things in the country in America. would be the FBI; it would not be the His answer to me should not have war, there is no geographic limit, and military because that is the law. There been, no, we will not kill noncombat- there is no temporal limit. It is a per- is an important reason for the law. ants. It should be, never—no, never. We petual war. And many of them—if you But we have a bill we are going to will never in America come to that. prompt them or provoke them—will come forward with that we are working Under my watch, we will never, ever open up and say: Oh, yes, America is a on that would simply say there has to allow this to happen in America. battlefield. We need the laws of war. be a real imminent lethal threat, some- It is incredibly disappointing. It And you ask them: When is the war thing we can see. Then I think people should be disappointing to all Ameri- going to end, When will we win the could agree to that because it is not so cans or anyone who believes in this. We war, they will admit it—some of them much the drone we object to. If some have to realize that trying to figure will frankly admit it. They will say the guy is robbing a liquor store 2 blocks out guilt or innocence is very com- war may go on for a long time. Some from here and the policemen come up plicated. Anybody who has ever served have talked about a 100-year war, 100 and he comes out brandishing a gun, he on a jury realizes how difficult it is to years being in these countries. But ba- or she can be shot. Once again, they do determine guilt. And sometimes you sically we are talking about perpetual not get Miranda rights. They do not are unsure. Some cases are actually de- war. We are talking about a war with get a trial. They do not get anything. cided by, gosh, the evidence was so no geographic limit, no temporal limit, If you come out brandishing a weapon equal, but there was not a preponder- and a war that has come to our coun- and people are threatened by it, you ance. I could not become completely try. can be shot. convinced, and this person is going to There will be bad people who come to So it is important to know what we be put to death? our country whom we need to repel. We are talking about. We are not talking Contrast the feeling a juror has and are not talking about that. If planes about the guy coming out of the liquor what a juror is trying to do in finding are being flown into the Twin Towers, store with a weapon. Even a drone innocence or guilt and letting someone we have the right to shoot them down could kill him if the FBI had drones. be punished by death with our current with our military. That is an act of So my objection to drones is not so standard. Our current standard for kill- war. No one questions that. If someone much the technology. There may be a ing someone overseas is that you can is standing outside the Capitol with a use for law enforcement here, but there be sympathizing, you can be close to grenade launcher, we have a lot of is also potential for abuses. people who we think are bad, you can brave Capitol policemen. I hope they Many government agencies have be in a caravan that we say bears the kill the person immediately. Lethal drones. These hopefully will remain un- signature of bad people. force to repel lethal force has never armed drones. This is a different sub- Now, there is another debate that can been questioned by anybody and is not ject. But it is a subject that sort of be had about whether those are suffi- even controversial. dovetails from this into the next sub- cient standards for war. And the stand- But they want to make the debate ject, which is, should you have protec- ards are different for war in our coun- about that and not about killing non- tion from the government snooping— try. But we have to adamantly and un- combatants driving in their car down from the government looking through equivocally stand up and say to those Constitution or sitting in a cafe on your bedroom windows? I remember who would say this is a battlefield: The Massachusetts Avenue. There may be that issue when I read ‘‘1984’’ when I hell it is a battlefield. This is our coun- bad people who are driving in their car, was in high school. It bothered me, but try. If you want to say this is a battle- and there may be bad people sitting in I could not quite connect. I felt some- field—if you say we are going to have cafes around the country. If there are, what secure in the sense that we did

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00032 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1169 not have two-way televisions. This was They say there is something called have the 9th and 10th. I like all the back in the 1970s. We did not have the an open spaces concept. They say: You others, of course. But then the 9th and ability to look at people. The govern- have 40 acres. The land is open so it is 10th protect all those not mentioned. ment could not look at me in my house not private anymore. I think that is So it is an interesting thing that 24 hours a day. absurd. I think that is sort of analo- some on the right disagree. In fact, the So you kind of get the feeling for how gous to the whole banking secrecy, majority does not like the Griswold de- terrible it would be for that to happen. such as you gave your records to your cision. But I actually kind of like it be- But technology was behind that. Actu- bank so you do not care if anybody cause I think your right to privacy is ally ‘‘1984’’ was written, I think, in looks at them. That is absurd. I have a yours, the same as I think your right 1949. So talk about—he was truly being 40-acre farm. I go hunting out there. I to private property is yours. It was not able to foresee the future. But now fast am supposed to not care if people delegated, it was not taken, it was not forward another 30 or 40 years and look watch me, everything I do once I am given to the Federal Government. It is at the technology we have now. We outside my house. My privacy is only yours. have drones that are less than an in my house and not in open spaces? It gets back to the sort of the pri- ounce, presumably with cameras—it is I disagree with that. One of the inter- macy of liberty, the primacy of your hard for me to believe that—but less esting things about the right to pri- individual freedom that you did not get than an ounce with a camera. It is not vacy, and you actually get some dis- that, you were not given your freedom impossible to conceive that you could agreement from people on the right by government. It was yours naturally have a drone fly outside your window about this. There was a case called the or, as many of us believe, it is comes and see what your reading material is. Griswold case. It had to do with birth from your Creator. So your rights are It is not impossible to say they could control. A lot of conservatives objected national and inborn. They were en- not send drones up to your mailbox and to it because they saw it as a building shrined in the Constitution, not given read at least what kind of mail you are block for Roe v. Wade. I am pro-life to you but enshrined and protected. As getting or where it is from. It is not in- and did not like the decision in Roe v. Patrick Henry said, it is not that the conceivable that drones could follow Wade, but I actually do not mind the Constitution was instituted among you around. We had an important Su- decision in Griswold so much. The rea- men to protect the government, they preme Court case last year, though, son is, going back to a little bit of the were to protect the people from the that was a blow for privacy. This was a discussion we had earlier on Lochner, government. It was to limit the size of govern- Supreme Court case that had to do is that with Griswold, what I see is ment, to try to restrain the size of gov- with GPS tagging. Everyone knows they talked about a right to privacy. what GPS is. But what they were doing Some said—the conservatives who ernment, to try to allow for a govern- is the police were shooting them to are worried about the judiciary coming ment that lived under a rule of law. cars or tagging them when you were up with new things or creating things— When Hayek said nothing distinguishes not with your car and then following they thought the right to privacy was an arbitrary government from a con- you around waiting for you to commit not in the Constitution so you do not stitutional government more clearly than this concept of the rule of law, a crime. If you tag everybody’s car and have it. I think that is a mistake in no- the important thing about the rule of wait for them to speed, we are going to tion. Because, for example, the right to law is also that the rule of law is some- have a big deal on fines. There is going private property, that is not in the thing that—it gives a certainty. Busi- to be a problem. There is also a prob- Constitution either, but I do not think nessmen have talked about certainty. lem with following people around wait- any of the Founding Fathers or most of Without relinquishing the floor, I ing for people to commit a crime. So us today would argue you do not have would like to hear a few comments the Supreme Court ruled, I think it a right to private property. In fact, I from Senator LEE. was unanimously, that you have to think it is one of the most important Mr. LEE. The issues we are dis- have a warrant to do that. parts. In fact, there was some debate cussing are of profound importance to The thing about surveillance is those about having it in there. But I think the American people for the reasons of us who believe in privacy are not ar- the right to privacy, the right to pri- Senator PAUL has identified. Ameri- guing against any surveillance. What vate property, they are part of what I cans have every reason to be concerned we are arguing is that you have to have would call the unenumerated rights. anytime decisions are made by govern- a reason to do it and you have to ask The unenumerated rights are basically ment that impair one of the funda- a judge for permission. So it is not a everything else not given to the gov- mental God-given protected rights that society where there is no surveillance ernment. Americans have. or a society where you have absolute You gave the government—or we give Anytime the government wants to privacy. If you commit a crime, the po- the government, through the compact intrude upon life or liberty or property, lice go to the judge and ask for permis- of the Constitution, we give the gov- it must do so in a way that comports sion to do this. ernment enumerated powers. There are with time-honored, centuries-old un- But there are some worrisome things about 17 to 19, depending on how you derstandings of due process. The rule of about the direction of drones. For ex- count them. But as Madison said, they law, in other words, must operate in ample, the EPA now has drones. The are ‘‘few and defined.’’ When you talk order to protect those God-given inter- EPA is flying drones over farmland. I about the rights, though, the 9th and ests to make sure they are not arbi- think some of this may be even in the 10th amendment will say those rights trarily, capriciously deprived of any defecation patterns of the cows. I do not specifically delegated to the Fed- citizen. not know exactly what they are look- eral Government are left to the States We are talking about the sanctity of ing for because manure in streams is and the people respectively. They are human life. When the interest at stake said to be a pollutant and, actually, not to be disparaged. is not just liberty or property but life frankly, thousands of animals might. So the interesting thing about your itself, we have to protect it. We have to But the whole idea, if you think rights is there is not sort of a list of take steps to protect that. So I think it someone is dumping anything in a your rights. In fact, when the Founding is important we carefully scrutinize stream—I am not opposed to having Fathers were putting together the Bill and evaluate any government program laws stopping that, get a warrant, of Rights, one of the objections to the that has the potential to deprive any search them or get a warrant and spy Bill of Rights was they said if we put American citizen of his or her life with- on them with a satellite or drone or the Bill of Rights together, everybody out due process of law. whatever you want to do. But you have will think that is all of their rights. I was concerned, as was Senator to have some kind of probable cause They will say, if it is not listed, you do PAUL, recently, when the Obama ad- they are committing a crime. Because not get it. ministration leaked what was charac- you can imagine that we would devolve So the 9th and 10th amendments were terized as a Department of Justice into a society where every aspect of an important part of it. In fact, I do white paper outlining the cir- our life would just be open to the gov- not know I would have voted for the cumstances—outlining the legal cri- ernment to watch what we are doing. Bill of Right’s inclusion if you did not teria that this administration would

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00033 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1170 CONGRESSIONAL RECORD — SENATE March 6, 2013 use in deciding when and whether and dition, imminence, does not require the it. If we are going to do something so under what circumstances to snuff out United States to have clear evidence dramatic as to no longer have the fifth human life, the human life of an Amer- that a specific attack on U.S. persons amendment apply in the United States, ican citizen no less, using a drone. and interests will take place in the im- to have no accusation, to have no ar- The memorandum started out with mediate future. That begs the question, rest, no jury trials for folks who are to certain somewhat predictable or famil- what then is the standard. Who then be killed in the United States, it is iar concepts. The memorandum started makes this determination? Presumably such a dramatic change that you would out by explaining an imminent stand- it is the President of the United States. think we would want to have a full air- ard, explaining that certainly could Perhaps it is others reporting up in the ing of a debate on this. not happen absent an imminent threat chain of command to the President of Mr. LEE. Would the Senator from to American national security, an im- the United States. Kentucky yield for a question? minent threat to American life, for ex- If actual imminence isn’t required as Mr. PAUL. I won’t yield the floor, ample. When we think of imminence, part of this ostensibly imminent stand- but I will allow the Senator to make we think of something that is emer- ard, what then is the standard? Is there comments. gent, we think of an emergency, some- any at all? If there is a standard, is it Mr. LEE. If the Senator will yield for thing that is going on at the moment, so wide, is it so broad you could drive a question, I will ask if the Senator which unless interrupted presents some a 747 right through it? If that is the was aware of the exchange some mem- kind of a dangerous threat. case, how is that compatible with time- bers of the Senate Judiciary Com- Significantly, however, this is not honored notions of due process, those mittee had with Attorney General how the Department of Justice white notions deeply embedded in our found- Holder this morning on the subject. paper actually read. Although it used ing documents, those notions we under- Mr. PAUL. Yes. the word ‘‘imminence,’’ it defined im- stand come from God and cannot be re- Mr. LEE. Was the Senator aware of minence as something far different voked by any government? the fact some of us asked Attorney than we normally think of, than we as I wish I could say the imminence General Holder for a more robust anal- American citizens use this kind of lan- standard problem in the Department of ysis than the series of memoranda au- guage, certainly in any legal or con- Justice white paper is the only prob- thored by the Office of Legal Counsel, stitutional analytical context. lem. It is not. We look to the very next the U.S. Department of Justice’s chief If I could read from that memo- page, the page dealing with feasibility advisory body, and the fact that so far randum, I would point out this condi- of capture. One of the other standards the Department of Justice has declined tion of imminence is described as fol- outlined in the Department of Justice to make those available to members of lows. white paper outlining the cir- the Judiciary Committee? It says: The condition that an oper- cumstances in which the government Mr. PAUL. Yes, I am aware of that. I ational leader—an operational leader of the United States may take a human think we have a transcript of some of of a group presenting a threat to the life using a drone in a case involving a the conversation from this morning. United States—presented imminent U.S. citizen is that the capture must be Mr. LEE. If I may supplement that threat of violent attack against the infeasible, and the United States must question by describing what I encoun- United States does not require the be continuing to monitor whether cap- tered in connection with that, I ex- United States to have clear evidence ture becomes feasible at some point. pressed frustration to the Attorney that a specific attack on U.S. persons As to this standard on page 8 of the General over the fact that members of and interests will take place in the im- Department of Justice white paper, it the Senate Judiciary Committee—who mediate future. says: Wouldn’t it be the Senator’s under- have significant oversight responsibil- Second, regarding to the feasibility of cap- ities with regard to the operation of standing if something is imminent, it ture, capture would not be feasible if it could would need to be something occurring the U.S. Department of Justice—have not be physically effectuated during the rel- not had access to that memorandum. immediately? evant window of opportunity or if the rel- Mr. PAUL. Yes. I think there is real- evant country were to decline to consent to This is part of our oversight respon- ly no question about using lethal force a capture operation. Other factors such as sibilities. This is something we ought against an imminent attack. I think undue risk to U.S. personnel conducting a to be able to see, and so far it is not that is why we need to make the ques- potential capture operation could also be rel- something we have been able to see. I tion we are asking the President very evant. Feasibility would be a highly fact-spe- encouraged the Attorney General to clearly. The question is if planes are cific and potentially time-sensitive inquiry. make available to members of the Sen- attacking the World Trade Center, we In other words, they are saying it has ate Judiciary Committee those very do believe in an imminent response. We to be something that could not be documents, which he claimed add some do believe in an imminent defense for physically effectuated during the rel- additional insight and would give us that. The problem is we are talking evant window. What is the relevant some additional analysis above and be- about noncombatants who might some- window? The white paper makes abso- yond what this white paper is saying. I day be involved. If they are in America, lutely no effort whatsoever to define thought that might be relevant to the I see no reason why they shouldn’t be what the relevant window is. Who then Senator in addressing my question. arrested. makes this determination, and accord- Mr. PAUL. Absolutely. At this point, Mr. LEE. If we are dealing with ing to what factors is that determina- I will entertain comments from Sen- something that is imminent, we are tion made? ator CRUZ and a question. talking about something that is about Here yet again we have a The PRESIDING OFFICER (Mr. to occur, and it is urgent. That typi- standardless standard. We have a COONS). The Senator from Texas. cally is the standard any time govern- standard that is so broad, so malleable, Mr. CRUZ. Would the Senator from ment officials in other contexts, law so easily subject to so many varying Kentucky yield for a question? enforcement, for example—sometimes interpretations, no one can reasonably Mr. PAUL. I will not yield the floor, regretfully and tragically, law enforce- look into this and decide who the gov- but I will acknowledge a question to ment officers need to make a spur-of- ernment may kill with a drone and who the Chair. the-moment judgment call in order to the government may not kill with a Mr. CRUZ. I wish to ask the Sen- protect human life. Sometimes in drone. That is a problem, and that, it ator’s reaction to the testimony Attor- doing that they have to do something seems to me, is fundamentally incom- ney General Eric Holder gave the Sen- they wouldn’t ordinarily do. It always patible with time-honored notions of ator this morning in the Senate Judici- turns on some kind of an imminent due process. Would the Senator not ary Committee. I wish to describe that standard. It always turns on some kind agree with that assessment? testimony for the Senate and ask the of an emergent threat, something that Mr. PAUL. Absolutely. I think that Senator’s reaction to that testimony. is about to occur, that is occurring at is where the crux comes down to this, I would begin by saying that Senator the moment. talking about having an imminent after Senator on the Judiciary Com- Yet we are told in black and white standard. This is part of the problem in mittee invoked the leadership of the right here in this white paper this con- the sense he doesn’t want to talk about Senator from Kentucky on the issue of

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00034 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1171 drones and asked Attorney General noncombatant, someone not posing an harm. I observed that if the Attorney Holder about the standards for drone imminent threat, who they think make General’s view was that it was uncon- strikes in the United States. Indeed, al- may someday pose an imminent threat stitutional for the U.S. Government to though the Senator does not serve on because that is what we are doing over- do so, then I assumed he would be sup- the Judiciary Committee, it was as if seas. If that is the standard overseas, I porting that legislation. I would wel- he were serving in absentia, because am asking is that going to be the come the Senator’s reaction to that ex- the Attorney General was forced over standard here? It amazes me. change. and over again to respond. Part of the reason we are here today Mr. PAUL. Well, Mr. President, the I would note the Senator’s standing in the midst of a filibuster is because response is a little bit troubling; that here today, like a modern ‘‘Mr. Smith they won’t answer the question di- it took so much work and so much ef- Goes to Washington,’’ must surely be rectly. I applaud the attempts to try to fort of cross-examination to finally get making Jimmy Stewart smile. My only get a more specific question. I am not an answer. regret is there are not 99 of our col- terribly surprised we have had trouble I will note, in his final answer, I leagues here today standing with the getting a direct answer. don’t ever see the words ‘‘constitu- Senator in defense of the most funda- Mr. CRUZ. Would the Senator yield tional’’ or ‘‘unconstitutional.’’ He is re- mental principle in our Declaration of for additional questions? sponding to Senator CRUZ’s word of Independence and our Constitution; Mr. PAUL. As long as I do not yield ‘‘constitutional’’ when he says: Let it namely, each of us is endowed with cer- the floor. be clear and translate my ‘‘appro- tain unalienable rights by our Creator Mr. CRUZ. After three times declin- priate’’ to ‘‘no.’’ I thought I was saying and that first among them is life, the ing to answer a direct question, would no. All right. No. right to life, and the right not to have killing a U.S. citizen on U.S. soil with Well, words do make a difference, and life arbitrarily extinguished by our a drone strike when that U.S. citizen I would feel a little more comfortable government without due process of did not present an imminent threat, if we would get in writing a letter that law. would that be constitutional—after says he doesn’t believe killing people At the hearing this morning, Attor- three times of simply saying it would not actively engaged in combat with ney General Holder was asked about not be appropriate, finally, the fourth drones in America, on American soil, is the letter he sent the Senator in which time Attorney General Holder re- constitutional. That sure would have the Senator asked him whether the sponded to vigorous questioning—in short-circuited and saved quite a bit of U.S. Government could use a drone particular during the course of the time. I will say, though, that I will believe strike to kill a U.S. citizen on U.S. questioning, the point was made that a little more of the sincerity of the soil. As the Senator knows, Attorney Attorney General Holder is not an ad- President and of the Attorney General General Holder responded in writing he vice columnist giving advice on eti- if we get a public endorsement of the could imagine a circumstance where quette and appropriateness. The Attor- bill that says drones can’t be used ex- that would be permissible. The two ex- ney General is the chief legal officer of cept under imminent threat, and define the United States. I will note I ob- amples he gave were: No. 1, Pearl Har- that as an imminent threat where you served it was more than a little aston- bor; and No. 2, the tragic attacks on actually have a lethal attack under- ishing the chief legal officer of the this country on September 11, 2001. In way. If we could get to that, I think United States could not give a simple the course of the hearing, Attorney this is something that both parties one-word, one-syllable, two-letter an- General Holder was asked for more spe- ought to be able to unite by. It is such swer to the question: Does the Con- cifics. In particular, both of those were a basic principle, I can’t imagine we stitution allow the Federal Govern- military strikes on our country with couldn’t unite by this. And it would ment to kill with a drone strike a U.S. imminent and, indeed, grievous loss of have gone a long way to getting these life that flowed from it. Few, if any, citizen on U.S. soil who is not posing answers. disagree that the U.S. Government an immediate threat? The proper an- But what still disappoints me about may act swiftly to prevent a military swer I suggested at that hearing should the whole thing is that it takes so attack which would mean immediate be no. That should be a very easy an- much work to get people to say they loss of life. The question Attorney Gen- swer for the Attorney General to give. are going to obey the law. It takes so eral Holder was asked three different Finally, the fourth time around, At- much work to get the administration times was whether the U.S. Govern- torney General Holder stated: Let me to admit they will adhere to the Con- ment could take a U.S. citizen, who be clear. Translate my appropriate to stitution. This should be a much sim- was suspected of being a terrorist, on no. I thought I was saying no. All pler process. U.S. soil, who was not engaged in any right? No. Finally, after three times re- I commend the Senator from Texas imminent threat to life or bodily harm, fusing to answer the question whether for not letting go and for trying to get simply sitting at a cafe—could the U.S. it would be constitutional to do so, the this information. I would welcome any Government use a drone strike to kill fourth time the Attorney General an- more comments that he has. that U.S. citizen on U.S. soil. swered. Mr. CRUZ. If the Senator would yield Three times when asked that direct The question I want to ask is the for one final question, is the Senator question, Attorney General Holder re- Senator’s reaction to this exchange. In from Kentucky aware of any precedent sponded that in his judgment that was particular when Attorney General whatsoever—any Supreme Court case, not ‘‘appropriate.’’ Holder on the fourth time finally stat- any lower court case, the decision of The first question—and if I may, I ed his opinion—and I assume the opin- any President of the United States, be- wish to ask a series of questions—does ion of the Department of Justice—that ginning with George Washington up to it surprise the Senator the Attorney it is unconstitutional for the Federal the present, the stated views of any General would speak in vague, amor- Government to kill a U.S. citizen on Member of this Senate, beginning with phous terms of appropriateness and U.S. soil who does not pose an immi- the very first Congress up to the prosecutorial discretion rather than nent threat, when he stated that, my present—for the proposition that this the bright lines of what the Constitu- response was I wish he had simply said administration seems willing to em- tion protects, namely, the right of so in his letter to the Senator at the brace, or at least unwilling to renounce every American to have our life pro- beginning. I wish John Brennan in his explicitly and emphatically, that the tected by the Constitution? questioning the Senator provided had Constitution somehow permits, or at Mr. PAUL. Mr. President, I am quite said so in the beginning. least does not foreclose on, the U.S. surprised, although I guess I shouldn’t Indeed I then said: The Senator from Government killing a U.S. citizen on be, that we don’t get direct responses. Kentucky and I are going to introduce U.S. soil who is not flying a plane into It is a pretty direct question. It is the legislation in this body to make clear a building, who is not robbing a bank, question I have been asking all morn- that the U.S. Government may not kill who is not pointing a bazooka at the ing. It is the question I have been ask- a U.S. citizen on U.S. soil if that indi- Pentagon, but who is simply sitting ing for a month and a half. I am talk- vidual does not pose an imminent quietly at a cafe, peaceably enjoying ing about situations where you have a threat of death or grievous bodily breakfast?

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00035 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1172 CONGRESSIONAL RECORD — SENATE March 6, 2013 Is the Senator from Kentucky aware tonishing power to take the life of any occur, where capture is infeasible, and of any precedent whatsoever for what I U.S. citizen, in my judgment, is fun- then they define an understanding of consider to be the remarkable propo- damentally inconsistent with the Bill feasibility that is so broad as to render sition that the U.S. Government, with- of Rights. And I would, therefore, ask it virtually meaningless. out indicting him, without bringing the Senator from Kentucky for his re- So at the conclusion of the memo— him before a jury, without any due action and whether he shares my un- and the memo says: process whatsoever could simply send a derstanding that our rights are pro- In sum, an operation in the circumstances drone to kill that U.S. citizen on U.S. tected not at the whim or grace of the and under the constraints described above soil? Executive, but they are protected by would not result in a violation of any due Mr. PAUL. Mr. President, I am aware the Constitution and, ultimately, they process rights. of no legal precedent for taking the life are rights that each of us was given by It is describing constraints that are of an American without the fifth our Creator, and we are obliged to pro- not really constraints, and that is a amendment or due process. What is tect the natural rights to life, liberty, problem. That amounts to a depriva- troubling, though, is that Attorney and property that every man and tion of due process. General Eric Holder is on record as ac- woman in America enjoys? In light of these circumstances, I tually arguing that the fifth amend- Mr. PAUL. Well, Mr. President, this think it really is imperative the Amer- ment right to due process is to be de- is what makes this debate so impor- ican people, or those who serve in this termined and is to be applicable when tant. This debate is about the funda- body—at a minimum, those who serve determined solely by the executive mental rights that we—most of us, or on the Senate Judiciary Committee— branch. many of us—believe derive from our be given an opportunity to review the I would appreciate the comments and Creator and that it is important we not wholesale legal analyses identified by opinions of the Senator from Texas on give up on these; that we not allow a the Attorney General today that have the idea that the executive branch gets majority vote or one branch of govern- been prepared by the Office of Legal to determine when the Bill of Rights ment to say we have now decided you Counsel of the Department of Justice. applies. don’t get all these rights anymore. This is the chief advisory body within Mr. CRUZ. If I may give my views on Our Founders really wanted to make the U.S. Department of Justice. It is that question and then ask for the Sen- it difficult to change things, to take the job of the fine lawyers in the Office ator’s response to my views on whether away our rights. So this is an impor- of Legal Counsel to render this advice, the executive may determine its own tant battle and one in which I think we and we ought to have the benefit of limitations, I would suggest the gen- should engage because the President that. At a minimum, we ought to have esis of our constitution is found in the needs to be more forthcoming. The the benefit of that within the Senate notion that the President is not a king, President needs to let us know what Judiciary Committee. that we are not ruled by a monarchy, his plans are, if he is going to overrule So when I asked the Attorney Gen- and that no man or woman is above the the fifth amendment and if the Attor- eral this morning whether he would law. Accordingly, no man or woman ney General is going to decide when make those available, I was surprised may determine the applicability of the the fifth amendment applies. That is a and a little frustrated when he declined law to himself or herself. pretty important distinction and to offer them immediately. He said he For that reason, the Framers of our change from the history of our coun- would check in with those he needed to Constitution won not one but two revo- try. consult with. I reminded him he is the lutions. The first revolution they won Mr. President, at this time I would Attorney General, and he does, in fact, was a bloody battle for our independ- like to ask for any comments, without supervise those who work in the De- ence from King George, and a great yielding the floor, from the Senator partment of Justice. many of them gave the ultimate sac- from Utah. I hope that is satisfactory and in re- rifice so that we might enjoy the free- Mr. LEE. In response to Senator sponse to the Senator’s question. dom we do today. But the far more im- PAUL’s question, I would like to add to Mr. PAUL. Yes, I agree with the com- portant war they won was the war of the Senator’s remarks and those of the ments of the Senator from Utah. ideas, where for millennia men and junior Senator from Texas the fact The whole problem is that if the women had been told that rights come that in the concluding paragraph of the President says my plan has due proc- from kings and queens and are given by Department of Justice white paper on ess, that would be sort of like me say- grace, to be taken away at the whim of this issue, the Department concludes ing I have passed my law, and I think the monarch. What our Framers con- as follows: it is constitutional. Well, the same cluded, instead, is that our rights don’t In sum, an operation in the circumstances branch of government doesn’t get to come from any king or queen or presi- and under the constraints described above judge whether it is constitutional. dent; they come from God Almighty, would not result in a violation of any due That is the whole idea of the checks and sovereignty does not originate process rights. and balances. from the monarch or the president, it It is a rather interesting conclusion, We pass a law in the Senate and the originates from we the people. in light of the fact that two out of the Supreme Court can rule on whether it Accordingly, the Constitution served, three analytical points outlined above is constitutional. So the President gets as Thomas Jefferson put it, as chains in the memorandum, in the white to decide that he is going to abrogate to bind the mischief of government. paper are themselves so broad as to be the fifth amendment or abbreviate the And I would suggest that anytime arguably meaningless or, at a min- fifth amendment or do certain things, power is arrogated in one place—in the imum, capable of being interpreted in and then he says: Oh, I am really not Executive—that liberty is threatened. such a way as to subject American citi- because the way I interpret it, I am ap- And that should be a view that receives zens to the arbitrary deprivation of plying the fifth amendment to my support not just from Republicans, not their own right to live. process. just from Democrats or Independents First, as I mentioned earlier, by pro- Well, he can’t do that. He can’t be or Libertarians, that should be a view posing an imminent standard that judge, jury, executioner, and Supreme that receives support from everybody; leaves out anything imminent—in Court all rolled into one. That is an ar- that none of us should want to live in other words, it is not just peanut but- rogation of power we cannot allow. a country where the President or the ter without the jelly; it is peanut but- Mr. President, at this time I would Executive asserts the authority to take ter without the peanut butter. There is like to entertain comments or a ques- the life of a U.S. citizen on U.S. soil no ‘‘there’’ there—they define out of tion from the Senator from Kansas without due process of law and absent existence the very imminent standard without yielding the floor, if I may. any imminent threat of harm. they purport to create and follow. That Mr. MORAN. Mr. President, I thank I would suggest the idea that we is not due process. It is the opposite of the Senator from Kentucky, and I should simply trust the Attorney Gen- due process. would like to ask a series of questions. eral, trust the Director of the CIA, or Secondly, they outline a set of cir- The PRESIDING OFFICER. The Sen- trust the President to exercise an as- cumstances in which this attack may ator from Kansas.

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00036 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1173 Mr. MORAN. First, let me outline a Really, is that not the logical exten- tant than just the nomination of one thought I had in listening to this con- sion of the idea that a drone strike individual. versation and ask the Senator a ques- from above results in the death of a When we are talking about whether tion about it. U.S. citizen without due process? Is the Bill of Rights is going to be We have seen the actions of our that any different than the ability to changed, when we are talking about President to be determined unconstitu- kill somebody in any other manner whether you will have the due process tional in a recent case in the court of that I think most Americans would to be tried in a court, or whether you appeals in the District of Columbia—a recognize today as prohibited without could be killed—summarily executed case in which the President made the due process of law by our Constitution? without a trial—that is an important determination he could determine the Mr. PAUL. Mr. President, the anal- change in the history of our country. definition of a recess in the Senate— ogy that the Senator from Kansas The Senator’s response also made me and so we now have a court that has brings up I think is appropriate. think of something else. Another way declared the President’s conclusion in We have had rules on the books since to resolve this, where we could con- that regard to be unconstitutional. the Civil War saying the military clude this debate and get on to the I don’t know that we want to get into doesn’t act in our country. So it is not nomination, would be for the majority the magnitude or evaluating what con- just a drone; it is any sort of law en- party to come forward with a resolu- stitutional violations are most dam- forcement in the United States. We tion that says: You know what. We are aging to the American people or to our recognize that. not going to kill noncombatants in rights and liberties, but I would ask We respect our soldiers. We are proud America with drone strikes; we are not the Senator to compare the con- of our soldiers. But we have limited going to use the military; we are going sequences of the President being wrong their sphere to the sphere of war. With- to reaffirm the law. once again in regard to the constitu- in the United States, for our security So there is a resolution that both tionality of utilizing a drone strike to we have the police and we have the parties could come forward—and it end the life of an American citizen. FBI. It is because the rules of engage- would be a wonderful resolution to this Again, I am suggesting that we have ment are different. It is different being process to say: The Senate goes on seen precedent where the President a soldier. It is a tough job being a sol- record in a bipartisan fashion as saying acts unconstitutionally. Fortunately, dier. But it is just not the same on the we are not going to overturn the fifth the legal process is there to make cer- streets of Wichita or the streets of amendment. If you are an American tain a determination is made as to the Bowling Green, KY. So we have dif- and you live in America, you will not constitutionality of that act. ferent rules and we have made it dif- be killed without being accused of a In this case, what would be the con- ferent. crime, tried by a jury, and convicted by sequences of a drone strike as com- But the Senator is right. I think peo- a jury. I think that would be a reason- pared to whether an appointment to an ple would understand that it would be able resolution to this, and I would en- administrative body under the recess wrong for a military officer to shoot tertain it if the other side were inter- clause is constitutional? someone on the streets in America. It ested. Mr. PAUL. Mr. President, I think the is prohibited for a good reason; not be- Mr. MORAN. I thank the Senator analogy is apt. The difference is a re- cause our soldiers are bad people, but it from Kentucky for responding to my cess appointment you get to make your is because there are different rules for questions. appeal to a court while still living, soldiers. That is what is most troubling Mr. CRUZ. Mr. President, would the which makes a big difference. In the about many of these people who say, Senator from Kentucky yield for a case of the recess appointments, the oh, Wichita is the battlefield. And if it question? President decided he could determine is the battlefield, they don’t under- Mr. PAUL. Mr. President, without re- when the legislative branch was in ses- stand why the military can’t act in linquishing the floor, I yield to the sion or out of session. So you have the Wichita or Houston or Bowling Green, Senator from Texas for a question. same sort of conflict again. KY. So it does delve into the problem Mr. CRUZ. Mr. President, I ask the The President has a sphere and we that we have to debate: Is there a limi- Senator his reaction as to the possible have a sphere, but now he is saying he tation to where the battlefield is? justification for the administration’s controls our sphere also; that he can If the Senator has another question, I repeated reluctance to answer what tell us when we are in session or out of would yield for a question without should be a very straightforward ques- session, and he can basically do what yielding the floor. tion. he wishes. The Supreme Court rebuked Mr. MORAN. Mr. President, I have an I find myself genuinely puzzled that him pretty sternly. additional question, and I believe it is both Mr. Brennan and Attorney Gen- So I agree with the Senator from my final question. eral Holder, when asked whether the Kansas. There is a great deal of simi- I would ask the Senator from Ken- U.S. Government may kill a U.S. cit- larity between the two because it is, tucky, through the President—we are izen on U.S. soil with a drone strike, once again, the executive branch or the here at this point in time in the junc- absent an imminent threat of harm to President acting as if the checks and ture of the Senate with the issue of life or grievous bodily injury—I find it balances between the Legislative and whether to confirm a particular indi- quite puzzling that both of them did the executive branches don’t exist; vidual to a particular office, an admin- not simply respond: Of course not. Of that he basically made the decision for istrative appointment. I would ask the course we can’t. We never have in the us that he has decided we are in recess. Senator if he doesn’t believe the issue history of this country, and we never But the Senator is correct, the Su- of the due process rights of American will. The Constitution forbids it. preme Court gave him a pretty stern citizens is of such a magnitude that the In my understanding of the Constitu- rebuke and said that would be uncon- real issue that ought to be before the tion, that was not a difficult question stitutional. Senate is not the confirmation of an the Senator asked, and I find it quite Mr. MORAN. Mr. President, to the individual, but we ought to resolve the remarkable that they treated it as a Senator from Kentucky, what is the issue of whether the Senate believes it difficult question. logical extension of a decision that it is is constitutional for the due process To be clear, there is no dispute—at constitutional to utilize a drone by our rights of an American citizen to be least no serious dispute—that if an in- military to strike at the life of an taken by a drone strike in the United dividual poses an imminent threat of American citizen in the United States? States, and the opportunity now pre- harm—if an individual is robbing a And I would say, if the Senator would sents itself that it would be a reason bank, there is no dispute that law en- agree with me, most Americans would not to grant cloture. forcement, a SWAT team, can use find it repulsive, unconstitutional, and Let me ask it as a question. Would it deadly force to prevent the imminent a terrible violation of public duty if a not be a reason to grant cloture on this threat to life or limb. military officer on the streets of Wich- nomination until we resolve this issue? What this issue is about is an indi- ita, KS, pulled a gun and shot an Amer- Mr. PAUL. Mr. President, I think it vidual who is not posing an imminent ican citizen. is very reasonable. It is more impor- threat—a U.S. citizen on U.S. soil—and

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00037 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1174 CONGRESSIONAL RECORD — SENATE March 6, 2013 the administration’s continued reluc- put in place; you can’t find out if there Indeed, I would suggest if those brave tance to say: The Constitution forbids is an imminent threat planned that he patriots of the Alamo were here, Wil- killing that U.S. citizen without due may know about? But if a drone from liam Barrett Travis and Davy Crockett process of law. the sky simply kills him, that knowl- and Jim Bowie and each of the others So what I want to ask the Senator edge perishes with him at that cafe and who gave their lives for freedom, they about is efficacy. so undermines the legitimate efforts of would be standing side by side with the Let’s take a hypothetical individual our government to protect the safety Senator and would be proud to call him whom the U.S. Government believes to and security of all Americans. brother. be a terrorist, who is sitting at a cafe Mr. PAUL. Mr. President, I think it Mr. PAUL. Mr. President, I would enjoying a cup of coffee, not posing an is an excellent question and really gets like to say that I appreciate the re- imminent threat to anybody. The ques- to the root of the whole problem we are marks of the Senator from Texas. If tion I would like to ask about effi- talking about because we are talking the filibuster goes on long enough, we cacy—and if I might, I would like to about people who may not all be good would like to hear a recitation of Wil- ask a couple of questions. people. They may be bad people and liam Barrett Travis’s last words at the No. 1, if it turns out the intelligence they may be plotting to do something Alamo. We had to memorize that as a is incorrect, that this individual the bad to America, and they may be in a kid, and I am afraid my memory has U.S. Government suspects of being a cafe. So there may be all kinds of rea- gone a little dusty. But the Senator is terrorist is not in fact a terrorist, that sons to arrest and punish them, but younger and may remember that for they have the wrong guy; and if a drone there may be all kinds of reasons to try us. strike is used and that individual is to get more information from them. The issue at hand is an issue that killed, is there an effective remedy to Particularly if they are not involved in goes beyond party politics. It goes be- correct that tragic mistake? combat, it is hard to imagine why you yond nominations. It goes beyond the Mr. PAUL. Mr. President, I think the would want to kill them. If they are President is a Democrat and I am a Re- question is well put. not involved in combat, why not cap- publican. I voted for three of the Presi- The first aspect of the question is, ture them and try to get some useful dent’s nominations, much to the cha- What is the President thinking? Why information out of them? grin and much to the criticism of some would the President not respond to us? So it is a little bit difficult to under- on my side. But I have done so because Why would the President not answer a stand why the President wouldn’t say I think the President does have some pretty easy question and say that non- what is obvious: Why would we want to prerogatives—that is just my personal combatants in the United States will kill noncombatants in America? viewpoint—on choosing appointees. not be killed with drones? The reason we keep asking the ques- This is a political appointee, but I do I think the reason is complicated— tion is, of the drone strikes overseas— not consider this debate to be about and it is conjecture because I can’t get which we are not privy to all of the de- the appointee. I think this debate is in his mind. But I would say it is sort tails because some of it is classified. more about a constitutional issue, and of a contagion or an infection that af- But the details that have been in the I think it rises to a level above the in- fects Republicans and Democrats when press are that a lot of these people dividual and it is something to which they get into the White House. They being killed overseas are not in com- we need to draw attention and about see the power the Presidency has. It is bat. which we need to have a good healthy enormous. They see themselves as good So the real question is, If you are discussion in our country. people, and they say: I can’t give up going to take this drone strike over- I don’t think it has to be a bitter par- any power because I am going to do seas and it has no geographic limita- tisan battle. I have met the President good with that power. tions, and you are bringing it home to personally. I have flown on Air Force The problem they don’t see is that America, does the President not think One with him. I respect him, I respect the power itself is intoxicating, and the it is incumbent upon him to say: Well, the office. I think he and I could have power someday may be in the hands of yes, we are bringing it home, but we a reasonable conversation on this someone else who is less inclined to use are not going to kill noncombatants? issue. In fact, I think if he were here it in a good way. I think that is why What an important question. I think today, he might actually agree with the power grows and grows, because ev- the Senator has phrased it appro- much of what I am saying. What I am erybody believes themselves to be priately and I would anticipate or re- disappointed in—and I do not know if it doing the right thing. spect any other response he would like is the muddle of a large government With regard to exactly what would to give. and not getting a message forward, but happen in the situation when there is Mr. CRUZ. One final question for the what I am disappointed in is that it is not an imminent threat, it boggles the Senator from Kentucky. so hard to get him to agree with what mind when we can’t answer that ques- I am aware the Senator from Ken- I think he should already and probably tion. And I don’t have a good under- tucky is originally from the great already agrees with. But when we are standing as to why exactly we can’t get State of Texas. As the Senator is no talking about doing something so dif- a response. doubt aware, today is the 177th anni- ferent, when we are talking about I would yield for a response from the versary of the fall of the Alamo. changing the way we adjudicate guilt, Senator from Texas. One hundred eighty-two men were changing the way we decide someone’s Mr. CRUZ. Mr. President, if I could stationed at the Alamo, and after 13 life or death, it is too important to just ask the second question, in the in- days of a bitter siege, fighting an army say: Oh, Mr. President, go ahead and do stance where the intelligence was of thousands, those patriots gave their it. As long as you tell me you have no wrong and a U.S. citizen was killed by lives for freedom. They put everything intent of breaking the law or no intent his or her government without due on the line to stand against tyranny to kill Americans, that is enough. process of law, there obviously would and to stand for the fundamental right It just simply is not enough. It is not be no remedy. But I would ask about of every man and woman to breathe enough to say: I have not done it yet. the alternate scenario. freely, to control our own lives, our I do not intend to kill anybody, but I If it were the case that this indi- own autonomy, to make decisions might. vidual was in fact a terrorist, was in- about what our future would be. He came up with some circumstances volved in a plot to threaten the lives If I may presume to speak on behalf where he might use the drone strikes and threaten the safety of other Ameri- of 26 million Texans, I would say I have in America. Then, in the cross-exam- cans; if this U.S. citizen sitting in a no doubt that Texans are proud to see ination of Senator CRUZ in the com- cafe is killed with a drone strike—fo- the distinguished Senator from Ken- mittee, we have gotten him to admit— cusing on efficacy—once he is killed, tucky, as a native-born Texan, fighting under duress, I think, but to admit am I correct that you can’t interrogate so valiantly for liberty and serving as that they are not talking about people him further; you can’t find out who such a clarion voice for liberty at a in a cafe. else was in the terrorist plot with him; time when sometimes liberty has few Some might say he has never men- you can’t find out what methods he had champions. tioned people in a cafe. The reason it

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00038 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1175 comes up, of people not involved in acter, to come to our aid, with all dispatch. national security expertise and experi- combat, is that a lot of the people who The enemy is receiving reinforcements daily ence, and it is certainly my hope that have been the victims or have been and will no doubt increase to three or four he will be the principled and effective killed by these drone strikes were not thousand in four or five days. If this call is leader the CIA needs and deserves. neglected, I am determined to sustain myself involved in combat when they were as long as possible and die like a soldier who I think Senator PAUL and I agree killed. They were riding in cars, walk- never forgets what is due to his own honor & that this nomination also provides a ing down the street, traveling in cara- that of his country. Victory or Death. very important opportunity for the vans. I am not saying they are good William Barret Travis U.S. Senate to consider the govern- people. I am just saying, regarding the My question is, Does that glorious ment’s rules and policies on the tar- standard for whom we kill overseas, we letter give you encouragement and sus- geted killings of Americans, and that, have to ask the question, and I don’t tenance on this 177th anniversary of of course, has been a central pillar of think we are doing our job if we do not the Alamo? our Nation’s counterterror strategy. ask the President: Are you going to use Mr. PAUL. Mr. President, I think For several years now, I and col- the same criteria for how you kill peo- what Travis’s letter at the Alamo talks leagues—Senator PAUL as well—have ple overseas? Is that the same criteria about is that there are things bigger been seeking to get more information over here? than the individual. At the time he about the executive branch’s rules for And it should not be: I will tell you wrote that, I don’t think they had conducting targeted killings of Ameri- later. It shouldn’t be, I don’t intend to much hope of surviving, and he died at cans. I am pleased that after consider- do it and I probably won’t, but I might. the Alamo, as well as other volunteers, able efforts—efforts really that should That is just not enough. some from my State of Kentucky. But not have to have been taken to get doc- We are talking about basic protec- there was an issue bigger to them at uments that the Intelligence Com- tions that we fought our Revolution the time, that they saw as bigger than mittee has been entitled to for some over and really, in a way, when I see the issue of the individual. I think that time—the committee has now received the wars that we have gone to—and not is what this debate is about. those secret legal opinions. every war has been perfectly justified This is not really about the person of To be clear—and this is a point Sen- or that we should have, but when our John Brennan. This really is not about ator PAUL made in the course of this soldiers fight, I see them fighting for the person of Barack Obama. This is discussion—targeted killings of enemy the Bill of Rights, and I think they say about the body of the Constitution, it fighters, including targeted killings that too. No matter where they are is about our respect for it, and it is that involve the use of drones, can be a around the world, I see them fighting about whether we will hold these prin- legitimate wartime tactic. If an Amer- for the Bill of Rights and our Constitu- ciples so dear and we will hold these ican citizen chooses to take up arms tion. But if we are giving that up, if we principles so high that we are willing against the United States, there will are not going to adhere to the fifth to try to enjoin a debate, to try to get absolutely be circumstances in which amendment, it takes the wind out of both sides to talk about this and to try the President has the authority to use the sails. to admit it, because we don’t want in- lethal force against that American. Can you imagine being a soldier in nocent people to be killed in America. But I think it has been our view—a Afghanistan or Iraq or in far-flung We want to have the process that has view that I hold and that I know Sen- places around the world and you are protected our freedoms for a couple of ator PAUL holds—that the executive told you were fighting for the Bill of hundred years now to remain in place, branch should not be allowed to con- Rights minus the fifth amendment? Or and we are unwilling to diminish that duct such a serious and far-reaching when we say we are going to indefi- simply because of fear. program by themselves without any nitely detain people, we are going to FDR said, ‘‘There is nothing to fear scrutiny because that is not how Amer- fight for the Bill of Rights minus the but fear itself.’’ I think we should also ican democracy works. That is not sixth amendment? It is pretty impor- say that we should not let fear be so what our system is about. Our unique tant. These things are what we are great that we allow the loss of our free- form of government is based on a sys- fighting for, so we really should at doms. I think that is where we are, tem of checks and balances that will be least have a robust debate over the that sometimes terrorists are every- here long after the current President magnitude of these changes, over how where and they are trying to attack us, and individual Senators are gone. these will be set up, over exactly what but we need to remember that it is our From time to time, the Senator from will happen, how this process is going freedom that is precious, and we need Kentucky and I say we ought to have to work. I am just saying that ‘‘I am to try to do everything we can to up- something that we call a checks and not intending to do so’’ is not enough. hold that. balances caucus here in the Senate. Mr. President, I, without yielding the At this time, I would entertain a Those checks and balances depend upon floor, would like to allow a question question, without yielding the floor, robust congressional oversight, and from the Senator from Texas. from the Senator from Oregon. frankly they depend on bringing the Mr. CRUZ. If the Senator from Ken- Mr. WYDEN. Mr. President, the issue public into this discussion as well, that tucky would allow this question, I of American security and American there be public oversight. would like to respond to his very gra- freedom really does not get enough dis- We share the view that details about cious invitation and ask if the fol- cussion here in the Senate. It is my individual operations do need to be lowing letter gives the Senator from view that the Senator from Kentucky kept secret, but the Congress and the Kentucky encouragement and suste- has made a number of important points public need to know what the rules for nance as he stands and fights for lib- this day, and I would like to take a few targeted killings are so they can make erty? This letter was written February minutes to lay out my views on this sure, as the Senator has touched on in 24, 1836, and it begins as follows: issue and then pose a question to my the course of this day, that American colleague from Kentucky. We have security and American values are both To the People of Texas and All Americans in the World: talked often about these issues. I al- being protected. It is almost as if we Fellow citizens and compatriots; ways learn a great deal. have a constitutional teeter-totter: we I am besieged, by a thousand or more of Of course the Senate will be voting want both our security and our liberty. the Mexicans under Santa Anna. I have sus- on the nomination of John Brennan, This is especially true when it comes tained a continual Bombardment and can- the Deputy National Security Adviser, to the rules for conducting targeted nonade for 24 hours and have not lost a man. to be the Director of the Central Intel- killings of Americans. The enemy has demanded a surrender at dis- ligence Agency. I voted in favor of Mr. What it comes down to is every cretion, otherwise, the garrison are to be put Brennan during Tuesday’s Intelligence American has the right to know when to the sword, if the fort is taken. I have an- Committee meeting, and I intend to their government believes it is allowed swered the demand with a cannon shot, and our flag still waves proudly from the walls. I vote for Mr. Brennan on the floor. Vir- to kill them. Now the executive branch shall never surrender or retreat. Then, I call tually every member of the Intel- has gradually provided Congress with on you in the name of Liberty, of patriotism ligence Committee now, in my view, much of its analyses on this crucial & everything dear to the American char- believes Mr. Brennan has substantial topic, but I think more still needs to be

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In recent weeks Senator PAUL has military ought to be given more do- In his capacity as Deputy National sent a number of letters on this topic. mestic counterterror responsibilities Security Adviser, John Brennan has He has received two responses and he such as capturing and detaining ter- served as the President’s top counter- has shared them with me. For purposes rorist suspects inside the country. I do terrorism adviser and one of the ad- of this question, I think the response not share that view, and I know the ministration’s chief spokesmen regard- from John Brennan—and he stated his Senator from Kentucky does not share ing targeted killing and the use of view on this quite clearly—was quite that view. I am grateful the Obama ad- drones. He would continue to play a de- constructive. He said the CIA does not ministration has now said they don’t cisive role in U.S. counterterror effort conduct lethal operations inside the share that view either. In fact, as I if he is confirmed as Director of the United States, and most importantly— have talked about with a number of CIA, and the Intelligence Committee is as per the conversations the Senator colleagues, I actually voted against the charged with conducting vigilant over- from Kentucky and I have had—Mr. annual Defense authorization bill for sight of these particular efforts. Brennan said the CIA does not have the the past 2 years because I was con- A number of colleagues on the Senate authority to conduct those operations. cerned that those two bills didn’t ade- Intelligence Committee of both polit- He was unequivocal with respect to quately address that particular prin- ical parties I think share a number of what would happen if he was confirmed ciple. the views that Senator PAUL and a as the head of the CIA, that he would The Attorney General suggested number on this side of the aisle have not have the authority to conduct what I think we would all consider an been expressing today and in the past those operations. So for purposes of unlikely scenario, the Pearl Harbor few days. I would especially like to ex- anybody who is kind of keeping score, and 9/11 attacks, in which it would be press my appreciation to the former I just say that Mr. Brennan—on the lawful and appropriate for the Presi- chairman of the Intelligence Com- questions the Senator from Kentucky dent to use military force inside the mittee, Senator ROCKEFELLER. There is and I have been interested in—was United States. As I read that state- no one more committed to the prin- clear and forthright. I have been inter- ment—and this is the point of my ques- ciples the CIA stands for. There is no ested in this for some time. I am glad tion to my friend from Kentucky—it individual more committed to the prin- the Senator from Kentucky has asked sounds a lot like the language that is ciples the CIA stands for than Senator the question. We have now gotten an in article 4 of the Constitution which ROCKEFELLER, and he believes more answer that is unequivocal from Mr. directs the U.S. Government to protect needs to be done to ensure that Con- Brennan. individual States from invasion. In my gress has the power to do responsible That brings us to the second response judgment, if the United States is being oversight. Senator UDALL, Senator from Attorney General Holder. This attacked by a foreign power, such as COLLINS, and Senator HEINRICH are all letter repeated the statement that the the 1941 attack on Pearl Harbor, the ones who share that view as well. In U.S. Government has not carried out President can indeed have the military doing that, we recognize that we have any drone strikes inside the United power to use the military to defend our a responsibility and that ultimately it States and that the Obama administra- country. is up to American voters to decide tion has no intention of doing so. It The reason I have been asking this whether Congress is fulfilling its obli- goes on to say that the Obama admin- question and have been interested in gation to conduct vigorous oversight of istration ‘‘rejects the use of military exploring it with my colleague from the executive branch’s actions and ac- force where well-established law en- Kentucky is that I think it is ex- tivities. forcement authorities in this country tremely important to establish that Let me then turn to the question provide the best means for incapaci- unless we have an extraordinary situa- that has received most of the attention tating a terrorist threat.’’ I would cer- tion, such as Pearl Harbor, the Presi- today and is really about what I would tainly agree with this position. It is dent should not go around ordering the like to explore for a moment or two clear to me that prosecutions in Fed- military to use lethal force inside the with my colleague from Kentucky. The eral court provide tough effective United States. Our military—we are President has also said—I was encour- means for dealing with terrorist sus- very proud of them—plays a vital role aged by a number of his comments, in- pects, which is why there are a great in efforts to combat terrorism over- cluding the State of the Union Ad- many terrorists who are now sitting in seas, but here at home we rely on the dress—that with respect to counterter- American prisons today locked behind FBI and other law enforcement agen- rorism efforts, no one should take his bars and exactly where they belong. cies to track down the terrorists, and word for it that the administration is The Attorney General went on to they do their job well. doing things the right way. As part of state: I thought it was helpful to see the Attorney General, as part of what has that, he said he was going to engage It is possible . . . to imagine an extraor- the American people in a discussion of dinary circumstance—Such as Pearl Harbor been discussed here, clarify and estab- these kinds of issues. When it comes to or the 9/11 attacks—in which it would be nec- lish that the President can only use continuing the public debate about the essary and appropriate under the Constitu- military force inside the United States rules for conducting targeted killings, tion and . . . laws of the United States for in extraordinary circumstances such as there are a number of questions which the President to authorize the military to the Pearl Harbor attack. The Senator need to be explored. One question I will use lethal force within the territory of the from Kentucky and I have had discus- United States. address to Senator PAUL involves the sions over this, and I thought about it question he and I have been interested This is what I wish to unpack a little overnight and thought about our dis- in for some time, and that is the ques- bit with my colleague from Kentucky cussions. My sense is that the Senator tion of the geographic limitation with after asking this question a number of from Kentucky doesn’t believe the At- respect to the use of lethal authority. times and thinking a lot about what torney General’s response was clear Senator PAUL and I—as well as oth- the answer ought to be. On this par- enough. I very much respect his view ers—have been asking for some time: ticular issue it seems to me the Attor- on this point. What are the limits with respect to ney General has certainly moved in the One of the reasons why I wanted to these lethal authorities, and in par- direction of what we wanted to hear. I walk briefly through a little bit of his- ticular whether they can be used inside want to kind of outline it, and I think tory is that I think there are some the United States? we agree on most of it, but I want to issues still to be debated. My colleague I have listened to a bit of the com- have a chance to exchange some has certainly been correct in asking ments made by Senator PAUL con- thoughts. valid questions because the Attorney cerning the confirmation hearing to- One of the core principles of Amer- General has left open the possibility of morrow. The point the Senator has ican democracy is that we do not ask using military force inside the United

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In fact, my is not with his response but that the tucky is making an important point, friend has asked some of the most im- Department of Defense is the one di- and the way I read it, it would focus on portant questions that we could be ask- recting the drone programs and it ensuring that our country would be ing here on the floor of the Senate. It doesn’t answer the final question. protected against those kinds of excep- seems to me the Attorney General has As far as Holder’s response, if it tional circumstances. ruled out using military force inside would have been written as the Senator I would just like to leave the discus- the United States except in cases of an from Oregon states it, there probably sion here by noting that I think both of actual attack by a foreign power. I un- wouldn’t be much of a problem. I think us feel this is just the beginning of this derstand why my colleague from Ken- maybe recounting the letter gives it a debate. The nature of warfare has tucky would say we ought to be engag- little more strength than the letter ac- changed so dramatically—and I par- ing more with the administration and tually possesses in its own words. If he ticularly appreciate the chance to asking for additional insight. I want it were to say we were ruling out all work on this in a bipartisan way—we understood that I have great respect strikes other than extraordinary are going to have to be continually for his effort to ask these kinds of strikes, that would actually be a pretty digging in and trying to excavate more questions and force them to be debated good letter. Instead he says he can information about how all of this actu- imagine this under certain cir- on the floor. Senator PAUL has cer- ally works without in any way jeopard- cumstances, and he lists a couple of tainly been digging into these issues in izing sources and methods and ongoing circumstances. The interesting thing is great detail. Frankly, on the question operations. I think we can do it. that a lot of us agree that in a situa- of how we balance American security With respect to how I read particu- tion such as Pearl Harbor and 9/11— and American liberty, we have worked larly that part of the letter—and I probably the Senator from Oregon and thought a lot about it—I think the two together often, and we are certainly probably me—we can repel a military going to be working together in the fu- of us and others can be part of what we attack. The reason we asked the next can call the ‘‘checks and balances cau- ture on these issues in the days ahead. question, and the reason I am con- I wish to allow the Senator from cus,’’ so we can just make sure people cerned about the next question—and I Kentucky to respond to my question. I understand this is about liberty and se- have only seen the unclassified version curity, and I think we can flesh this ask that my friend recognize that of these—but the unclassified versions while we might differ a bit on the as- out more in the days ahead. I know I of the drone attacks indicate that a have had four sessions now with the pect of the Attorney General’s response significant amount of them are not which I have cited this afternoon where classified documents that were made killing people with a weapon. People available as a member of the Intel- there would be an instance of an ex- like to talk about taking up arms. traordinary threat to our country, I do ligence Committee and I still have a Well, a lot of people are not carrying lot of questions. Some of those I think see—almost as part of what article 4 is around arms. It doesn’t make them about—the President’s ability to de- we will have to ask in a classified way, good people, but they are not carrying but I think others of them we can ask fend us in those kinds of situations. I around arms. They are not actively know my colleague from Kentucky in a public way, and the two of us can shooting our soldiers or us. At the par- work on that together. may see it differently, and, frankly, he ticular time they kill them, they look I also think there is a very strong is raising important issues. I am inter- like noncombatants. If we have some- case for beginning to declassify some of ested in his thoughts on that this after- body sitting in a cafe in our country— the information with respect to these noon. even if it is a bad person—most of us drone policies, and I think that can be The PRESIDING OFFICER (Mr. would probably rather arrest that per- done as well, consistent with pro- BROWN). The Senator from Kentucky. son. If they were arrested, one, they Mr. PAUL. Mr. President, I thank the tecting our national security. would get the due process of our coun- So I think the Senator from Ken- Senator from Oregon for coming to the try; and two, if they were bad people, tucky has made a number of important floor and being a champion for the Bill we might actually get information points this afternoon. I thank him for of Rights. We get a lot of grief in Wash- from them. So I wish to see a little bit the chance to work with him on these ington about a lack of civility—people better wording. issues and I look forward to continuing yelling and screaming at each other. In The last thing I would say—and I this discussion in the days ahead and I my dealings with Senator WYDEN—who would appreciate hearing the Senator’s appreciate the time. is on the other side of the aisle—I response—is the Attorney General was The PRESIDING OFFICER. The Sen- think it is evident that people can be in the Judiciary Committee this morn- ator from Kentucky. from different perspectives, find com- ing. He was asked a bunch of questions Mr. PAUL. Mr. President, a lot of the mon ground, and try to get to a point on this. I looked through the transcript process by which we are getting this which is not a partisan point. I have of a couple of them and it is still like information wouldn’t have happened tried to make it not so much about red pulling teeth. He was asked four times: without the Senator from Oregon as as it is about principles. I voted for two Do you think it is constitutional to well as the senior Senator from Geor- or three of the President’s nomina- kill someone in a cafe in Seattle or gia both working together to get infor- tions, and I think he deserves some Houston or Louisville? He kept saying mation. It is the way the system ought latitude with his political nominees. I it wasn’t appropriate, but language is to be working. One of the good things think the Senator from Oregon said it important when we are talking about about the body is both Republicans and well when he said we have use of au- this. Appropriate is not strong enough. Democrats working together to get in- thorization of force in Afghanistan. It is sort of like the President is say- formation from—not necessarily adver- Most people think that was going to- ing: I have no intention. We want him sarial but in a way adversarial—an- ward Afghanistan. It has been so broad- to say he won’t, rather than not having other branch of government. We are a ly interpreted that it means worldwide intention. branch of government, but it is not war basically forever, and that is sort He didn’t quite put it together in his partisan against partisan, it is bipar- of why we get into some of these prob- response, but in his response—com- tisan working for the power of the lems. Not only is it worldwide, which is bined with the questioning—we can get checks and balances to try to ensure a a big debate in and of itself, worldwide the opinion that maybe he thinks it is leveling. I thank the Senator from Or- means at home too. The battlefield is not constitutional to kill noncombat- egon for helping to get the information here. ants having dinner. Wouldn’t it be easi- to make this a much fuller debate. I agree with the Senator from Oregon er if they just said that? At this point, Without yielding the floor, I will en- that Brennan was very forthright. It I would entertain a question without tertain a question from the Senator was a little bit onerous getting the re- yielding the floor. from Florida.

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00041 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1178 CONGRESSIONAL RECORD — SENATE March 6, 2013 The PRESIDING OFFICER. The Sen- cause I think this is actually a very this institution. It is a defense of the ator from Florida. useful exercise for the folks who have legislative branch. It is a defense of the Mr. RUBIO. I thank my colleague for been snowed in today and there is Senate as an institution. Irrespective the opportunity. Let me begin by—I nothing better to watch than C–SPAN of how one feels about the nomination have been here a while. Let me give my and for the people who are able to be or the program or where the Senator colleague some free advice: Keep some here today to actually understand the falls on this constitutional issue, it is a water nearby. It is handy. Trust me. structure of our government and how it defense of this institution, and it is a Anyway, I thank the Senator for en- was designed, because it is my personal constitutional—not a constitutional tertaining my question. Let me just opinion we have gotten away from right, a constitutional obligation to begin by saying my question is about some of that. ask relevant questions of public policy the motivation for being here on the Let me describe for a second my posi- and to get answers, to ask questions so floor today. What brought me here is I tion that leads up to the question I am the people back home will know the have been reading some of the accounts going to ask. I am actually a member answers to these questions. If we are of what is going on and people are talk- of the Intelligence Committee, which not going to ask these questions, who ing about the involvement of the Sen- means we reviewed this nomination. I is going to ask them? The press? Maybe ator from Kentucky in a filibuster and have questions that I care about that in a press conference, but that is not some are already characterizing it as were somewhat different than the valid what they are paid to do; that is what another Republican filibuster of one of ones the Senator from Kentucky is we are paid to do. That is what we were the President’s nominees. Just to be raising. As a member of that com- elected to do. clear because, as I understand, the only mittee, I asked those questions and I So I would like to hear the Senator’s thing I have heard the Senator from am going to seek answers to those views on that, because my belief and Kentucky say leading up to now about questions. what I am picking up from everything the primary issue in coming to the We have a job to do. I think that is Senator PAUL is saying, the Senator is floor today is that the Senator from important for people to understand. actually on the floor today standing Kentucky asked a very straightforward Members of the Senate have an impor- for the obligation this institution has question on an issue of constitutional tant constitutional role to give advice to ask questions such as this and to be importance. Yet he has not received a and consent on these nominations. We able to get straight answers to these straightforward answer. Not only has have an obligation not just to pass questions. the Senator from Kentucky not re- these folks through but to actually ask Mr. PAUL. Mr. President, I think the ceived an answer, but we saw testi- serious questions to determine if they Senator from Florida has it exactly mony earlier this morning that, quite are qualified for the position they are right. This is about checks and bal- frankly—I watched the video two or going to hold. We want our Senators to ances, it is about the coequal branches three times and I personally do not un- be doing that in both parties, no mat- of government, and it is about how we derstand why it was so difficult to basi- ter who the President may be. limit usurpation of power by checking cally just say yes or no. So I undertook that effort as far as and balancing each of the different So I wish to start out by asking, just the Intelligence Committee. I asked powers. to be clear, the motivation to be on the my questions. I got answers to my So when Montesquieu wrote that floor today is not to deny the President questions. I believe the nominee is there can be no liberty when you com- a vote on one of his nominees but the qualified and I believe the President bine the executive and the legislative, motivation is that the Senator from has a right to his nominees, even if they were separated for a reason. When Kentucky has asked this administra- they are not the people we would nomi- the Constitution says Congress de- tion a very important and relevant nate. I believe ultimately these nomi- clares war not the President, it was question and has been unable to receive nees deserve a vote. That is why I separated for a reason. So when we a straightforward answer to that ques- voted yesterday to move this nomina- look forward to these things—and the tion? tion on. Mr. PAUL. Mr. President, my re- Senator from Kansas brought this up Just as the President has a right to sponse to that is yes. In fact, I have ac- earlier—when the President says, I his nominations and ultimately to tually voted for several of the Presi- have the ability to determine when you have a vote on those nominations, so, dent’s nominations. My trying to draw are in session or not and I can do recess too, do Members of the Senate have a attention to this issue is because I be- appointments when I think you are out right to their role and, in particular, to lieve it is an incredibly fundamental of session, that is a great usurpation of ask relevant questions on issues of im- issue; that is, how we would kill peo- power to one branch and we should portant public policy and get answers ple—Americans—on American soil, fight it as an institution, Republican from the administration. This is not— whether the Constitution applies, and Democrat, and not make these par- whether the fifth amendment applies. I think sometimes this is being lost. tisan issues. So my motivation in doing this is not We have different branches of govern- So I agree with the Senator from partisan. It is something that has to ment, but they are coequal branches of Florida. I believe there is a need for do—and I have said, frankly—and I government. The Presidency, the exec- those checks and balances. By the body truly mean this—if it were a Repub- utive branch, is it important? Abso- not struggling to get as much informa- lican President today I would still be lutely, it is important. It is the Com- tion as they can—not even in this case in the same place because the Amer- mander in Chief. It is the top single of- as much about the individual as about ican people deserve answers on this. fice in the Nation. But the legislative the policy—then I think it is a mistake There are different rules in war than branch is a coequal branch with a job for the body not to. I agree with the there are here. We need to acknowledge just as important. In order to do that Senator from Florida completely. It is and separate ourselves and say we are job, we have to have access to informa- something that should be defended. It not completely—we are not in the mid- tion, the ability to ask relevant ques- is not something to be derided as par- dle of a battle zone. We still do have tions, and to get straight answers. To tisan because I don’t see it as partisan Miranda rights and we still get an at- be frank, sometimes I feel when we ask at all. I see it as a defense of the sepa- torney in the United States. It is not questions of this administration, they ration of powers and of the checks and the same as a battlefield, but if he is feel as though it is beneath them to an- balances. bringing battlefield strategy home, we swer questions from us, from time to At this time I yield, without yielding need to know before he starts doing it time. I think that is very unfortunate. the floor, for another question. and at least we need to know the rules. My question is—when the Senator Mr. RUBIO. This will probably be my Does the Constitution apply? from Kentucky is here today raising last question. Before I get to it, let me I would entertain a further question these issues, it is my opinion—and I say that all the other Senators—I know from the Senator from Florida without would like to hear what the Senator some of my colleagues have already yielding the floor. has to say—this is more than just an come to the floor and some might be Mr. RUBIO. Without yielding the issue of the constitutionality of this watching or some might be nearby. I floor, the followup question I have—be- particular program, it is a defense of would just say this, to think about this

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00042 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1179 for a moment. One may or may not relevant questions about. So I guess I they think you are somehow a ter- agree with the position of the Senator wanted to hear from him a little bit rorist, then they would arrest you, par- from Kentucky on this issue. Maybe a more about why he chose this par- ticularly if you are in a noncombat op- Senator saw the Attorney General’s ticular nomination and why and how it portunity. Why in the world would the answer and saw his testimony this is relevant to the larger question he is President take the position that if you morning and that Senator is satisfied asking. are eating in a cafeteria, you are eat- with it. Maybe another Senator is not Mr. PAUL. The answer to the ques- ing at a restaurant, you are at home that concerned about this issue at all. tion is that we have tried the normal asleep, that you could not be arrested? I don’t think that is the issue. I think channels and have been for a month. So it is a real easy question, and the what we need to remember is that all We sent the standard letters. We sent President should, very frankly, answer of us have something we care deeply three different letters to John Brennan the question: I will not kill noncombat- about or multiple things we care deep- and we didn’t get any response. But ants in America. I cannot imagine why ly about, and the day will come when when the leverage became used or the the President cannot answer an easy something you care about or some leverage became apparent that both question. issue you are involved in or some ques- Republicans and Democrats on the In- There have been people on both the tion you have, you will try to raise telligence Committee were asking for right and the left who have been asking that question, and it may be under a more answers, then we finally began to these questions. Glenn Greenwald different administration. I think we get answers. The answers unfortu- writes a lot about this issue. This is a have to remember the President will nately didn’t quite answer the ques- pretty interesting proposition that he not be President forever. There will be tion. puts forward. He says: a new President in 31⁄2 years and after As the days wore on, we have actu- If you posit that the entire world is a ‘‘bat- that and so forth and some folks may ally gotten more answers. Since I have tlefield,’’ then you’re authorizing him to do still be here. At some point in the fu- been standing here this morning, we anywhere in the world what he can do on a battlefield. . . . ture, all of us will have questions we have now gotten the report of the At- want answered and we will have an ad- torney General’s testimony before the That has been my point. If the ministration or some other organiza- Judiciary Committee. In that, under United States is the battlefield, and we tion of government that refuses to give withering cross-examination, I guess is are going to have the laws of war—or us straight answers. When that mo- the best way to put it, he finally owns another way it can be put is martial ment comes, you will want your col- up and says: Well, maybe somebody in law—in America, if we are going to leagues to rally to your side, even if a cafe, it wouldn’t be appropriate to have that in America, you need to they don’t agree with you, and defend kill them in America. know about it because martial law— your right as a representative of the The Senator from Texas wanted to go living under martial law—is the way people of your State to ask important one step further. We don’t want you to they live in Egypt. That is why they questions, particularly questions of say whether it is appropriate; we want just had a rebellion in Egypt and over- constitutional importance, and get you to say whether you think you have threw Mubarak. Because they had, by straight answers to those questions. the power to do it, whether you think martial law, indefinite detention. It is my feeling—and the Senator you have the constitutional authority So those who say the battlefield is may comment on this—if he had just to kill someone who is a noncombatant here, we need to live under the laws of gotten a straight answer to that letter, in a restaurant or in their house or in war in our country—and they tell you if he had just gotten a straight answer their church or wherever. Do you think to shut up if you want an attorney—by in the testimony today, this would not you have the power to kill noncombat- golly, be careful about that. Be quite have been necessary. If they would ants? It is a pretty important question. careful if you are going to let us go to have taken in the question, which I I think we may have eked out some of that sense. So Greenwald says: think is a pretty straightforward ques- the answer from Attorney General tion, and answered it in a straight- If you posit that the entire world is a ‘‘bat- Holder. tlefield,’’ then you’re authorizing him to do forward way, all of this could have It would be nice if we would actually anywhere in the world what he can do on a been avoided and this nominee could get that in clean language, where the battlefield: kill, imprison, eavesdrop, de- have had a vote. But, instead, they de- Attorney General would now say this is tain—all without limits or oversight or ac- cided to go in a different direction and our policy. But, see, this comes from countability. That’s why ‘‘the-world-is-a- it baffles me. allowing the executive branch so much battlefield’’ theory was so radical and alarm- Here is a question I have. I think this power. If you allow them the power to ing (not to mention controversial). . . . is important also for the people watch- make the rules, to make the decisions He also quotes from Esquire, from ing back home. Often, they may say: without any kind of oversight or scru- Charles Pierce, who said: Why do you have to do it this way? tiny, the danger is that there will be no This is why the argument many liberals Why can’t you just answer the question process. So the thing is right now we are making—that the drone program is ac- and not have to do this process of have a program going on where we kill ceptable both morally and as a matter of starting and stopping things from mov- people around the world with drone practical politics because of the faith you ing forward? My view is—and I want to have in the guy who happens to be presiding strikes, and there are criteria and over it at the moment. . . . share it with the Senator and get his standards for how we do it. impressions—twofold. No. 1, these are The obvious question is: You are So you will remember, many of these the tools that are at our disposal. That going to do that in America? Under people did not like George Bush, and is why the system was created and de- what standards? We have had at least they railed and railed about wiretaps, signed this way. One of the things the allegations, we have had some who and now they are suspiciously quiet Senate has at its disposal to preserve have said the bulk of the drone strikes when we get to a killing program. But he says: If you have so much con- and protect its prerogative to ask im- around the world have been signature fidence because you like the guy, the portant questions are the rules we have killings, which means the people are President in charge of this—he says— set up here. They don’t protect just one not identified who are being killed, that ‘‘is criminally naive, intellectu- Senator but every Senator here, even if that it is a long line of traffic and we ally empty, and as false as blue money I don’t agree with others. One of the blow up the line of traffic. Now, we can debate whether in war to the future.’’ things that gives us the ability to ask He goes on to say: and have questions answered is this we may have a looser criteria for whom The powers we have allowed to leach away role we have of confirming nominees. we are blowing up, but I would think from their constitutional points of origin Secondly, I would say this is not the that in America we would not blow up into that office have created in the presi- Secretary of the Treasury, this is not a caravan going from a wedding to a fu- dency a foul strain of outlawry that (worse) some other unrelated Cabinet position, neral, from a church to a house, from a is now seen as the proper order of things. this is the Central Intelligence Agency, political meeting back to their home. If that is the case— which is directly related to the pro- We would have different rules in Amer- And the author says he believes it gram the Senator from Kentucky has ica. If you are accused of a crime, if is—

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If you Every four years, we elect a new criminal we take shots at versus folks whom we are exerting lethal force against Amer- because that’s become the precise job de- are able to detain and interrogate—but ican soldiers anywhere in the world or scription. still, I know the Senator from Ken- in our country, you use lethal force to So we have to ask some important tucky agrees with me that at the end stop that. Sometimes you cannot stop questions. I am not asking any ques- of the day, we need to take out bad to even ask permission from Congress. tions about the President’s motives. I guys, guys who seek to do us harm. The You do that. Imminent threats are re- do not question his motives. I, frankly, Senator’s position all along has been pulsed. do not think he will be killing people that with due process that ought to But because of all the drone at- in restaurants tonight or in their house happen. tacks—and I am not saying they are tonight. But this is about the rule of My question to the Senator is, with necessarily wrong the way they are law. It is not so much about him. It is the administration not giving him a done—it is just that they are done at not so much about John Brennan. It is straightforward answer—and I under- people who are not in the middle of a about having rules so that someday, if stand the Attorney General, in re- battle. So if we transfer that to Amer- we do have the misfortune of electing sponse to some questions today in the ica, I do not think that is acceptable someone you do not trust—electing Judiciary Committee, again was very for America. someone who might kill innocent peo- evasive on the question, in spite of hav- It is a different debate on whether it ple or who might kill people whom ing given the Senator a letter just yes- is always a good idea, whether we they disagree with politically or they terday on this issue—that there still is should do it, what the rules should be might kill people whom they disagree not a straightforward, black-or-white, overseas. But the rules we have cur- with religiously or might kill people of as it appears to me they could give rently I do not think are appropriate another ethnic group—we are pro- you, answer to this question; am I cor- for the United States. tected. That is what these protections rect about that? Mr. CHAMBLISS. Again, Mr. Presi- are about. But they are not so much Mr. PAUL. Mr. President, the Sen- dent, if I could direct a question to the about the individuals involved now. ator from Georgia is correct. I also, Senator: The fact is that from a pure But there is a program that is going while he is on the floor, want to thank oversight standpoint—Armed Services, on around the world that is killing in- him for getting some of this informa- Intel—these committees that have ju- dividuals with drones, and it is done in tion to come forward. Because it has risdiction over the issue of fighting the a warlike fashion. The thing is, in war been a very onerous task, and without war on terrorism need to have the you do not get due process. So these his leadership on the Intelligence Com- right kind of information so we can ask people around the world do not get Mi- mittee, as well as Republicans and the right questions. Getting the right randa rights, and I am not arguing for Democrats asking for more informa- kind of information out of this admin- that. If you have a gun leveled at an tion, we would not have gotten any- istration has been worse than having a American in Afghanistan, you are where. With that input, we have been going to be killed with no due process. root canal and more difficult than hav- able to get some answers. ing a root canal. I am not arguing for that. But I am ar- The answers have not all been good. I again am appreciative of the Sen- guing it is different if you are in Af- Brennan has answered, with the appro- ator being forceful in asking the ques- ghanistan pointing a weapon at us or priate answer: The CIA does not work tion, and I think at the end of the day, here pointing a weapon at us. It is dif- within the United States. That should again, he has had no issue relative to ferent if you are eating dinner or if you be pretty obvious because everybody ultimately having a vote on Mr. Bren- are in your home at night. knows that and that is the law. The nan. So I think there are clear and dis- problem is, it does not answer the final I am not supportive of the nomina- tinct differences, and there is no excuse question because the drone program is tion of Mr. Brennan, but I think he for the President not giving us a clear- under the Department of Defense, and ought to have a vote, and I intend to cut answer. if we are going to bring that home to express myself in much greater detail There is a writer by the name of America, I think the Intelligence Com- on it a little later. But from the stand- Conor Friedersdorf who writes for The mittee, as well as the whole body, point of simply moving the issue for- Atlantic. I will get into that in just a ought to be not just waiting for the minute. President to tell us how he is going to ward, if the administration had come At this time, I would like to, without use it in America. We have civil law in to the Senator with a direct answer yielding the floor, stop for a question America and we ought to be part of days or weeks ago, when he asked the from the Senator from Georgia. that process. But I do not think we can question, we probably would not be Mr. CHAMBLISS. I thank the Sen- allow it to go on without our input. here now. ator from Kentucky. Mr. CHAMBLISS. Let me, Mr. Presi- Again, I thank the Senator for his First of all, let me say, I appreciate dent, if could, ask the Senator again a comments on this issue. the Senator’s passion. I appreciate the little different question to make sure I Mr. PAUL. Mr. President, I wish to fact that, as he knows—and he and I understand exactly what the Senator thank the ranking member of the In- have had some discussions about this has asked for. telligence Committee and also say this issue over the last several days and The Senator’s position, as I under- could come to a close anytime if the weeks—the Senator is bringing this to stand it, has been all along that if we President will sort of say what Attor- the forefront, as he has done. have bad guys flying airplanes into a ney General Holder was trying to say We have talked about the Senator’s tower or if we have folks who are firing this morning, and put it into actual question that he submitted to Mr. missiles or tanks or weapons of any words, that he thinks he has the mili- Brennan for answering. This is not a sort in the United States, seeking to tary authority to reject imminent at- rocket science question. This is a ques- carry out an act of war, an act of ter- tack. I think we all agree to that. But tion that is perfectly reasonable, per- rorism, taking those guys out is not a if he says he is not going to use drones fectly rational, and a question that problem. on people who are not engaged in com- ought to be able to be addressed by the Mr. PAUL. Yes. Mr. President, the bat in America, I think we could be administration in a very quick, simple, idea of combating lethal force I think done with this debate—I think one direct response. I have been dumb- is questioned by very few, if anybody. phone call from the President to clar- founded, as the Senator from Kentucky If planes are flying into the Twin Tow- ify what his position is or from the At- knows, about the fact that he did not ers, we obviously send up F–16s. We torney General to actually write out get a straightforward, simple answer have missiles. We do whatever we can what his position is. immediately. to stop an attack on America. But I guess the reason I am kind of But the fact of whether a drone at- What I am concerned about—the alarmed is, we have a quote from the tack—and I am one of those who thinks same way if it is a domestic terrorist. Attorney General saying the executive

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John Brennan was that he acknowl- the fifth amendment in the United Mr. REID. Yes, basically. edges the CIA cannot act in the United States. But if they could be more clear Mr. CHAMBLISS. Continuing to re- States. That is the law. That was nice. on that, I think we could be done with serve the right to object, I guess, then, But the Attorney General responded this debate at any time. I would direct a question to the Sen- and said they do not intend to. They I have never objected to a vote on ator from Kentucky since he has the have not yet, but they might. Brennan, on the nominee for the CIA. floor. What amount of time does the Mr. TOOMEY. Am I correct in under- But I have objected to the idea that ba- Senator think he wants to utilize? standing that is currently the state of sically we are just going to throw out The PRESIDING OFFICER. The Sen- play? That is the most recent response the baby with the bathwater and the ator from Kentucky is recognized. the Senator has gotten in writing from Bill of Rights becomes something of Mr. PAUL. Mr. President, reserving the administration? lesser importance. the right to object, I would be happy Mr. PAUL. Mr. President, that is the The PRESIDING OFFICER. The ma- with a vote now. I have talked a lot only direct response I have gotten. I jority leader. today. But the only thing I would like have also read the testimony from the Mr. REID. Mr. President, would my is a clarification. If the President or Judiciary Committee where the Sen- friend yield without losing for the floor the Attorney General will clarify that ator from Texas cross-examined the for a unanimous consent request? they are not going to kill noncombat- Attorney General, who responded indi- Mr. PAUL. Without yielding the ants in America—he essentially almost rectly to my question by saying: It was floor, I would be happy to yield. said that this morning. inappropriate, we probably would not f He could take his remarks, that he do that. UNANIMOUS CONSENT REQUEST— virtually agreed ultimately with Sen- But he would not answer directly EXECUTIVE CALENDAR ator CRUZ, and put it in a coherent whether it was unconstitutional. It ap- Mr. REID. Mr. President, I ask unan- statement that says the drone program pears at the end that he may have said imous consent that the Senate proceed will not kill Americans who are not in- that it would be unconstitutional, say, to the consideration of Calendar No. 43; volved in combat. to kill noncombatants. that the cloture motion at the desk be I think he probably agrees to that. I It should be a pretty simple answer reported; that the mandatory quorum do not understand why we could not really. That is all I am asking. I can be under rule XXII be waived; that there put that into words. But if he does, I done anytime if I could just get a re- be 90 minutes for debate, with 30 min- want no more time. If not, I will con- sponse from the administration or the utes under the control of the chair and tinue to object. If the administration Attorney General saying they do not 1 hour under the control of the vice- and the Attorney General will not pro- believe they have the authority to kill chair of the Intelligence Committee, vide an accurate answer, I object. noncombatants in America. with 30 minutes of the vice-chair’s time Mr. REID. Mr. President, I am not in Mr. TOOMEY. Further clarification: under the control of Senator PAUL; a position to talk for the Attorney If the administration seems to be un- that following the use or yielding back General. We will just finish this matter willing to state unequivocally that of that time on the nomination, the tomorrow. they recognize they do not have the Senate proceed to vote on the cloture The PRESIDING OFFICER. Objec- legal authority to kill a noncombatant motion; that if cloture is invoked, the tion is heard. American on American soil, did they Senate proceed to vote on the con- Mr. REID. Mr. President, everyone suggest under what circumstances they firmation of the nomination, without should plan on coming tomorrow. We would? intervening action or debate; further, are through for the night. Did they suggest a process by which that the motion to reconsider be con- The PRESIDING OFFICER. The Sen- they would identify an American cit- sidered made and laid on the table, ator from Kentucky. izen noncombatant on American soil with no intervening action or debate; Mr. PAUL. Mr. President, at this who might be subject to being killed by that no further motions be in order to time, without yielding the floor, I a drone strike? the nomination; that the President be would like to entertain a question from Mr. PAUL. Well, there has been a immediately notified of the Senate’s the Senator from Pennsylvania. white paper that was released that goes action, and the Senate then resume Mr. TOOMEY. Mr. President, I want through a series of things. They do legislative session. to thank the Senator from Kentucky have a step or a process they go Mr. President, before I hear from my for raising a very important issue. I through in determining whom to kill. friends on the consent, I have no prob- would just like to have a little bit of The problem I have is that in foreign lem if people want to talk for a long clarification so that I understand ex- countries—I do not know the exact time, no problem. I have done it a time actly what has transpired and the number because it is classified, but in or two in my day. But I think that the exact question to which the Senator foreign countries many of the people rest of the body needs to know if we from Kentucky would like a response. being killed are not actively engaged are going to finish tonight or tomorrow My perception, my understanding, is in combat. or the next day. So my consent request this seems like a very simple and basic I am not saying that is right or is pretty direct. We would have 90 more request. So I am surprised that we did wrong or making an opinion on that minutes of debate, an hour under the not have a simple and straightforward matter. But I am saying that is not a control of the Senator from Georgia, answer. So I wonder if the Senator standard I can live with in the United and 30 minutes under the control of from Kentucky would just summarize States. So let’s say one-third of the Senator FEINSTEIN or their designees. briefly for me, so that I understand drone strikes are going against people The PRESIDING OFFICER. Is there clearly the exact request that he made who are eating dinner with their fam- objection to the majority leader’s con- to the administration. ily or walking down the road or sleep- sent request? Mr. PAUL. Mr. President, in late ing in their house. If that is our stand- Mr. REID. Mr. President, I would January we sent a letter to John Bren- ard and we are going to do drone simply say, if there is objection, we nan, the nominee for the CIA, asking a strikes in America, I could not tolerate will come back tomorrow. bunch of questions. Included among or live with myself if I would accept a The PRESIDING OFFICER. The Sen- those questions was, Can you kill an standard in the United States that ator from Georgia. American in America with a drone would allow that to happen. Mr. CHAMBLISS. Mr. President, re- strike? We got no response and no re- Mr. TOOMEY. Mr. President, judging serving the right to object, let me, if I sponse and no response. from the response, what I understand is

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00045 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1182 CONGRESSIONAL RECORD — SENATE March 6, 2013 that there is a standard that applies we are not going to do that. The onus go back to ‘‘Alice in Wonderland,’’ be- overseas. But we have not gotten—cor- ought to be on whoever has an expla- cause it sort of points out the absurd- rect me if I am mistaken—a definitive nation for when and whether and why ity of where we are at this point. We word as to whether that same standard and under what circumstances we think of Lewis Caroll as being fiction. would apply domestically to American would, and that ought to be debated Of course it is fiction. We think Alice citizens. If we have not gotten a defini- very, very carefully and thoroughly. never fell down a rabbit hole. Of course tive answer, then we, it seems to me— Until such time, I think it ought to be she did not. She is not real. The white again, correct me if I am wrong—but easy to acknowledge this is not going queen and her caustic judgments are then it would suggest to me that we to take place. not really a threat to us. But there is have no idea what standard would be If we cannot get a direct answer to a question: Has America the beautiful used. I cannot imagine that we would that question, then I have to say I become Alice’s Wonderland? We can find it acceptable to be in a situation think the Senator from Kentucky is hear the queen saying: No. No. But her where an administration would suggest performing an important service in response is, Sentence first, verdict that using a drone to kill an American putting a spotlight on this. I commend afterwards. noncombatant on American soil, with- him for doing it. I thank him for doing Well, that is absurd. How could we out even disclosing the process by it. I am finished with my questions. sentence someone without determining which they would determine that was Mr. PAUL. I thank the Senator from first whether they are guilty or inno- appropriate—this is kind of hard to un- Pennsylvania for asking his questions cent? Only in Alice’s Wonderland would derstand. Am I understanding it incor- and being part of the debate. I think you sentence someone before you try rectly? that ultimately we could get this them. Would you sentence someone to Mr. PAUL. Well, the interesting straightened out in the sense that it is death before you accuse them? Do we thing about this is for many years, no not so much about the debate about really live in Alice’s Wonderland? Is one would talk about the drone strike the person as it is about the issue. there no one willing to stand up and If we could get the administration or program at all. Then, recently, one of say to the President: For goodness’ the Attorney General to put their an- the former spokesmen for the Presi- sake, you can’t sentence people before swer in a succinct form and simply say dent said he was instructed to never you try them. You can’t sentence peo- they believe they have the authority to say it existed. But now that it is in the ple before you determine whether they repel an attack, which most of—I think open, the President, a week ago, was are guilty. all of us agree to that, but they do not asked at Google when he was there for There has been discussion in our have the authority to kill someone in a an interview: Can you do this? country about whether even the courts restaurant, to kill someone at home in His answer: Well, the rules would can sometimes make mistakes. Some their house, to kill someone when they probably have to be different inside States have gotten rid of the death are eating dinner; that, really, if you than outside. penalty because they have made mis- want to say that you can use drones in That implies he thinks he can do it takes and through DNA testing they America to strike people, not only in America. Then the question be- have found that sometimes they con- would it have to be remarkably dif- comes, What are those rules? This is as victed the wrong person. Can you imag- ferent, it could not be anything like much about the checks and balances ine, with all the checks and balances of the way we use drones around the of—you know, they say we have the our court system—which I think is the world, which brings up some other im- ability to advise and consent. This is portant questions. best in the entire world, with attorneys some friendly advice I am giving to the The thing is this has brought us to a on both sides whether you can afford President today that he ought to think much bigger and important debate. them or not. There is an argument about or we should think about as a When people tell you that America is a back and forth, and there are all of body whether we are a check and bal- battlefield, when they tell you the bat- these procedural protections, and you ance to the power of the Executive, tlefield is here, realize what they are may appeal, and still sometimes we get whether it is Republican or Demo- telling you. They are telling you your it wrong. cratic. Bill of Rights do not apply because in If we can get it wrong in the best sys- I think it is immaterial. No Presi- the battlefield, you really do not have tem in the world, do you think one pol- dent should have the power to make due process. I am not arguing for that. itician might get it wrong? You will these decisions unilaterally. I am not arguing for some kind of silly never know because nobody is told who Mr. TOOMEY. Mr. President, I will rules for soldiers to ask for Miranda is going to be killed. It is a secret list. finish. I just want to make two points: rights and do all this. War is war. War How do you protest? How do you say: I One is I think we ought to have a ro- is hell. But we cannot have perpetual am innocent. How do you say: Yes, I e- bust debate about the circumstances war. We cannot have war that has no mail with my cousin who lives in the under which we would use drone temporal limits. We cannot then have Middle East, and I didn’t know he was strikes overseas and understand the war that is a part of our daily life in involved in that. Do you not get a implications. Think about this. We our country; that we are going to say chance to explain yourself in a court of have what is still, to the United States, from now on in our country, you do not law before you get a Hellfire missile a relatively new threat in the form of have the protections of the Bill of dropped on your head? these nonstate actors, these terrorist Rights. It amazes me that people are so will- organizations that are sometimes af- So I think it is incredibly important. ing and eager to throw out the Bill of filiated with each other, sometimes We have been kind of blase about this Rights and just say: Oh, that is fine. not, scattered around the globe. This is whole drone strike program. It should Terrorists are a big threat to us, and I new. come home to where we can really am so fearful that they will attack me In addition, we have new technology think about it because that is what that I am willing to give up my rights. we never had before. It was not terribly they are asking to do. They are asking I am willing to give up on the Bill of long ago the idea of flying an un- to bring the drone strikes to the home- Rights. manned drone and using it to kill a land. I think we give up too easily. person who could be hundreds or thou- So I think we need to be careful. We The President has responded, and he sands of miles away, that was com- need to ask important questions. I said he hasn’t killed anybody yet in pletely implausible. Now, of course, we think at the very least we need to be America. He says he doesn’t intend to have the ability to do it. When new cir- asking the question: Can you do this kill anyone in America, but he might. cumstances and new technology come with no due process? Are we not going I, frankly, just don’t think that is good to bear, we ought to have a discussion to have an accusation? Are we not enough. about when and whether and how it is going to have a public accusation or The President’s oath of office says ‘‘I appropriate to use that. charge? Are we not going to have a will,’’ not ‘‘I might’’ or ‘‘I intend to,’’ When we are talking about American trial by jury? the President says ‘‘I will protect, pre- noncombatants on American soil, I I started out today reading from serve, and defend the Constitution.’’ He think the starting point ought to be, ‘‘Alice in Wonderland.’’ I would like to doesn’t say ‘‘I will do it when it is

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00046 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1183 practical’’ or ‘‘I will do it unless it is The danger is also that we have al- That is the only way he can justify this infeasible, unless it is unpleasant, peo- ready defined some of the people who because probably half of these drone ple argue with me. I have to go through we think might be terrorists. The Bu- attacks are people who really aren’t Congress, and I can’t get anything reau of Justice came out with a list of engaged in any kind of combat. That is done, then I won’t obey the Constitu- characteristics, and they said: If you a different debate. You can argue right tion.’’ It is out there. It is a rule. He see this, report on it. If you see this, or wrong whether we should be killing doesn’t get to choose. tell someone. They want you to inform these people not involved in combat be- Recently he made some choices on your neighbor, so you need to know cause there is evidence they are con- where it appears as if he believes he which one of your neighbors is a ter- spiring to hurt us and to attack us. does have some sort of superpower, rorist. They gave you some descrip- That is another argument, but it is a some power that sort of exceeds the tions of people to be worried about. pretty low standard. You can argue other branches of government. Re- They said people missing fingers, peo- that, well, that is war over there, and cently he told the body of the Senate ple with colored stains on their that is a lower standard, and I can ac- that he decides when we are in recess, clothes, people who have weatherized cept it, but for goodness’ sake, could he decides when we are working. The ammunition, people who have multiple there be any question that in America court rebuked him. The court told him guns, people who like to use cash. If we are going to accept a standard so it is unconstitutional, and they re- that is the criteria or the criterion for low, a standard that basically says that versed his decision. Do you know the who is a terrorist, I would be a little if we think you might someday be en- people he appointed through a recess— bit worried if you are one of those peo- gaged in hostilities, we can kill you? do you know what they are doing right ple—you might have a drone attack in We need to be careful because the cri- now? They are still at their post. They your bed tonight. teria for the drone strike program are still working in defiance of the This has gone on in more than one overseas really is something that I court. This will have to go to the Su- place. The fusion centers they devel- think most Americans wouldn’t accept preme Court. I guess it will take an- oped were supposed to be a liaison be- for their fellow citizens. other year or so to go up there, but he tween the Federal Government and the Overseas, one of the most famous has been told what he did was illegal. local government. In these fusion cen- American citizens they killed was al- I guess what disappoints me most ters, for example, in Missouri, they Awlaki. Before he was killed, he was about this, though, is that the Presi- also came up with some characteristics primarily thought of as someone who dent, when he ran for office, was actu- of people who might be terrorists. They they said was a sympathizer. I think ally someone for whom I had a great actually send it out as a memo to all there is no question he was a sym- deal of respect on the issues of civil lib- the police officers. Can you imagine if pathizer. I think he denounced his citi- erties. I work with many on the other you are one of these people—people zenship. He was a bad guy. He sym- side of the aisle because, frankly, many who are pro-life, people who are for se- pathized with our enemies. I think he on the left and some on the right—we cure borders, people who support third- could have been tried for treason. I truly do believe in civil liberties and in party candidates? The big irony of all think if I were on a jury, from what I protecting the individual. I think the is people who belong to the Constitu- have read of nonclassified information, President was one of those when he was tion Party. If you believe in the Con- I would have voted his guilt and for his in the Senate. stitution too much, you might be a ter- death. The thing is, some kind of proc- The President, when he ran for office, rorist. They say it was a mistake, and ess might be helpful. often talked about, it isn’t American they eventually apologized. Now they His son, though, 16 years old, was to torture people. I agree with him. He don’t—they try not to have their killed 2 weeks later in a separate drone said it isn’t American to give up on the memos become public, I think. strike, and he was on nobody’s list that right to privacy, to say you don’t need The point is, if this is what we are I know of; they won’t respond. I think a warrant to tap someone’s phone. I getting to and this is the criterion for the response by the President’s spokes- agreed with him, and I respected that who is a terrorist, you would think— man is reprehensible. It really should about him. I can’t for the life of me un- you really would think you would be be called out. It is really sort of this derstand how he goes from that kind of worried about giving your President flippant response that I think shows belief where he believes so much in the the authority to kill Americans on absolutely no regard for individual constitutional protections to your American soil without any kind of due rights or for Americans. He said: Well, phone, but he is not willing to stand up process. I find it quite alarming. the kid should have chosen a more re- for the constitutional protection to I think the answer he could have sponsible father. Think about that. Is your life? It doesn’t make any sense at given is pretty simple. I think there is that the standard you wish your gov- all. And if he does, why won’t he say it? a possibility he may actually even ernment to operate on in America? We I have my own sort of theory on this, agree with some of the things we are have a lot of criminals in our country. and this applies both to Republicans saying here today. Why won’t he give We have a lot of bad people. If you hap- and Democrats. My theory is that it is it? I think Presidents, Republican and pen to be the son of a bad person, is sort of a contagion, it is sort of an in- Democratic, don’t give the answer be- that enough to kill you? fection that you get when occupying cause they are afraid of constricting The other thing is that people killed the Oval Office. They think, oh, I am a their authority. They believe in some overseas who are not the target—they good person, so more power for me sort of inherent power, which is not don’t call them civilians because they would be a good thing. listed anywhere, but they think they say anybody between the age of 16 and Lord Acton said that power corrupts, have it. They don’t want to give up any 50 who is a male is a potential combat- and absolute power corrupts abso- of it. They jealously guard this power. ant. Are we going to use that same lutely. There is a danger when someone They have this power, and they don’t standard here in our country? Are we has so much power that they think want to give it up. That is why they going to use the standard in our coun- more power, more power and more won’t answer us with a straight an- try that if you just happen to be a male power—I will do good with that power. swer. and you happen to be standing near The problem is that even if that is a You get things. The only word I can somebody we have judged to be a prob- good person, someday someone occu- think of is gobbledygook. You get this lem, that we are going to go ahead, pying that office may not be a good craziness that comes from attorneys and, oh, I guess that is not even collat- person. Someday you may get someone that doesn’t make any sense. eral damage; that person was probably in the Oval Office who says: What He was asked: What is an imminent a bad person because he was standing about those people? They look different threat? close to this person? from us. What about those people? These people we are going to kill I think there are different standards They have different color skin. What with drones have to be an imminent for war than there are within our coun- about those people? They have a dif- threat. try. It is not always going to be per- ferent color ideology than I have. What His attorneys say ‘‘imminent’’ fect, and there is a legitimate debate about those people? doesn’t have to mean ‘‘immediately.’’ over what the rules should be in a war,

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The reverse of that is basi- I would further ask the Senator if he asked—whether the President has the cally, if you reverse the laws of war, recalls that when the Obama adminis- power to authorize lethal force, such as they are talking about martial law, is tration made these legal memos—high- a drone strike against a U.S. citizen on what they are talking about, law that ly classified legal memos—public docu- U.S. soil and without trial—is a very is acceptable under extreme cir- ments, does he remember the Attorney clearly stated question and one, I be- cumstances. General made some specific comments? lieve, the Senator and the rest of the I don’t think what we have in our In fact, he said: We are disclosing these Members of Congress are entitled to a country right now is a circumstance memos consistent with our commit- very clear answer on. where I would accept martial law, but ment to the rule of law. Yet today, I was in the Senate Judiciary Com- we have already instituted some of the that same Justice Department refuses mittee hearing with the Attorney Gen- things you will see in other countries to release to Members of Congress—in- eral this morning where we attempted under martial law. In Egypt, they have cluding this Senator, the Senator from to ask him on a number of occasions indefinite detention. That is their Kentucky, and other Members who what his answer would be to this ques- emergency decree that occurred back have oversight responsibilities—the tion. Yet he equivocated and he was in the 1970s, and it went on and on to very same legal rationale in this case ambiguous. He seemed to be ambiguous the present. They have martial law, for the drone strikes the Senator from when a clear answer would serve him and they are very unhappy about hav- Kentucky is talking about. just as well, a point the Senator from ing martial law, indefinite detention. So I wanted to ask, first of all, of the Kentucky has made. The question I have for the Senator You saw it last year. We have indefi- Senator from Kentucky whether he be- is: Wouldn’t in all likelihood the legal nite detention in America. lieves I have accurately recited the rationale or justification issued by the The President’s response again was facts, but then to ask him whether he Office of Legal Counsel at the Depart- inadequate. What did the President say sees a double standard here on the part ment of Justice include a discussion to having indefinite detention in our of the Obama-Holder Justice Depart- which would illuminate and elucidate country? He said: Well, I don’t intend ment where on one hand they release the answer to the Senator’s question? to use it. I would rather have a Presi- these legal memos from the Office of In other words, I would assume, with- dent who has the chutzpa to not sign Legal Counsel, and in this case, instead out having seen that classified memo, the legislation and send it back and of releasing the legal rationale for the that it would go through a rather say: Take it out or I won’t sign it. I authority to make drone strikes, they lengthy analysis of the hypothetical would have a lot of respect for someone issue what is, in essence, a white paper, situations under which these drone like that. or press release, that was linked to the strikes might be used and would, in all Mr. President, without yielding the news media. likelihood, I think, shed some light on floor, I would be happy to entertain a I would ask the Senator from Ken- and clarify the answer to the Senator’s question from the Senator from Texas. tucky to respond. question. Wouldn’t that be a reason- Mr. PAUL. Mr. President, the ques- The PRESIDING OFFICER (Mr. able way to answer what is a very tion from the Senator from Texas is a BLUMENTHAL). The Senator from Texas. straightforward and reasonable ques- Mr. CORNYN. Mr. President, I want- very good one, and there does seem to tion? ed to come to the floor to pose a few be a double standard going on here. Mr. PAUL. Mr. President, piecing to- questions to my colleague from Ken- There seems to be one standard for gether what I have heard of some of his tucky. First, I would say that I admire wiretapping of phones or interrogation, testimony, I actually think he did fi- his fortitude and his willingness to ask but there seems to be much less a nally admit to some things that I appropriate and reasonable questions standard for actually killing. It seems think are consistent with what I am of the administration on a matter of to be hypocritical and one would won- saying. They haven’t put it in writing grave importance. This is a matter no der why. previously. I would think he could al- less important than our constitutional With regard to releasing the memos most take his testimony today—where government itself that does not give and how they come about their process, he almost at some point seems to agree sole power to the administration to some of that was leaked. It is always that it would be unconstitutional to make these decisions but recognizes curious to me that it is as if the leaks kill noncombatants, people not ac- that the Congress is a coequal branch come out on purpose; as if they are in- tively engaged in combat—and if he of government. Indeed, we have impor- tentional. The leaks happen right be- would say that, I think he would an- tant oversight responsibilities in the fore a nomination process. I don’t swer my question, basically. Because I Department of Justice, the Department know the truth of that, but I do think have never been talking about people of Defense, and there isn’t a more deli- that not only should we get the engaged in lethal force. You don’t get cate and important matter than the memos, but if there is going to be a much due process there. If you are en- limitations placed on the government drone strike program in America, per- gaged in lethal force, lethal force is when it comes to dealing with our own haps we should actually be writing the used against you. So one would think citizens. rules and sending them to the Presi- he could answer that simple question, I would like to ask the Senator from dent. That would be our job—not to lis- similar to what he actually stated in Kentucky whether he is aware of some ten to him and what he is going to do his testimony today, but they won’t of these issues. on drone strikes in America, but actu- give us a succinct answer, or any an- First of all, shortly after President ally spelling out and having an open swer, really. So that is the answer we Obama took office, the Holder Justice discussion. Because in America I don’t have been trying to get to all along. Department declassified and released think that should be a secret—how we Mr. CORNYN. If the Senator will detailed, previously top-secret legal are going to go about this in America. yield for another question. memos attempting to explain the legal I see no reason not only to get the The PRESIDING OFFICER. The Sen- rationale for the enhanced interroga- drone memos, and I think it would be ator from Texas. tion program the Central Intelligence more consistent with their earlier posi- Mr. CORNYN. To the Senator’s last Agency used during the Bush adminis- tion, but I think what we should do is point, I am reading from a letter dated tration. These memos were written by be a part of the process of determining March 4. It is from the Attorney Gen- the Office of Legal Counsel at the De- how we go forward, with whether we eral to Senator PAUL, and he says: partment of Justice, which is fre- are going to have drone strikes in The question you have posed is therefore quently called the lawyer for the exec- America and what the rules would be. entirely hypothetical, unlikely to occur, and

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I Our Founding Fathers were brilliant stitution and applicable laws of the United am already getting tired and I don’t in the sense that they separated the States for the President to authorize the military to use lethal force within the terri- know how long I will be able to do this, powers and had these coequal powers of tory of the United States. so I can’t ultimately stop the nomina- government, these branches of govern- In other words, to the Senator’s tion. But what I can do is try to draw ment that were somewhat pitted point, on one hand he said it was a hy- attention to this and try to get an an- against each other. And by having pothetical question, unlikely to occur, swer. That would be something, if we equal power and by being able to judge and one we hope no President would could get an answer from the Presi- the power of the other branch, no one ever have to confront; and then, on the dent. And I think we would all sleep branch could accumulate too much other hand, he said it is possible to better and feel more comfortable if he power. But in our country it has been imagine a scenario under which it would say explicitly that noncombat- going the other way for a long time. It would happen. That would appear to ants in America won’t be killed with hasn’t been just Democratic Presidents cast a further lack of clarity on some- drones. The reason it has to be an- or just Republican Presidents, it has thing that should be a straightforward swered is because our foreign drone frankly been both. For maybe 100 years yes or no. strike program does kill noncombat- or so power has been gravitating and Mr. PAUL. Mr. President, here is the ants. They may argue they are con- gravitating and gravitating to the interesting thing about saying it is hy- spiring or they may some day be com- Presidency. And not just the Presi- pothetical and it wouldn’t happen. I batants, but if that is the same stand- dency. When people talk about the bu- could buy that, except for the fact that ard we are going to be using in the reaucracy, these are people who are our foreign drone strike program—a United States, it is a far different within the executive branch—millions significant amount of the drone country than I know about. Ours is a of them. When we passed ObamaCare, strikes—are on people not actively en- country where dissent, vocal dissent, it was 2,000-some-odd pages, but there gaged in combat. Whether that is right even vehement, vociferous dissent as have been 9,000 pages of regulations or wrong is another question, but since far as whether our country should go to written since. ObamaCare had 1,800 ref- we already have an example of a sig- war, whether our country should raise erences to ‘‘the Secretary of Health nificant amount of those being used on taxes, lower taxes, has always been al- shall decide at a later date.’’ We gave those not engaged in active combat, it lowed. We allow a great deal of dissent up that power. We gave up power that is hard for him to say this is a rare, un- in our country. But some of the people should have been ours, that should usual, hypothetical thing that could whom we have said we are targeting have been written into the legislation. never happen, because it seems as have been dissenters, probably traitors We gave up that power, and as a con- though it is a big part of the drone pro- too, but they have also been people sequence we gave it to the executive gram overseas. who have been vocalizing it more than branch. We gave it to people—many of Mr. CORNYN. Mr. President, I said they have been shooting anybody. them we call bureaucrats—who are that was my last question, but I would That is not to say you can’t be a trai- unelected. So we gave away power. It is ask the Senator to yield for this last tor even if you don’t shoot anybody. a struggle, and it should be a perpetual question. But if you are going to be accused of struggle, but we shouldn’t give in on The PRESIDING OFFICER. The Sen- treason or of being a traitor in the that struggle and give up that power. ator from Texas. United States, I would think you would There was mention the President Mr. CORNYN. It strikes me, Mr. get your day in court, probably. It is should reveal to us drone memos on President, that there is a clear double particularly troublesome since some of how he is making the decisions. We standard here. The Senator has asked a the descriptions of who might be a ter- have had some leaks about that, but I reasonable question, to which he has rorist are such that I would be a little would go one step further. Not only not gotten a clear answer, and one that bit concerned about the slippery slope should the President let Congress know is clearly within the purview of the to who is and who is not a terrorist. I what he is doing, maybe we should tell Senate in our oversight capacity for can’t imagine in America we would do him what to do. Maybe the Congress the Department of Justice and as a co- that without an open accusation, with- should be setting the rules for how we equal branch of government. On one out a trial by a jury, without a verdict. do drone strikes. Maybe the Congress hand, the Obama-Holder Justice De- I think it is important this discus- should be protecting the American peo- partment not only released a white sion go on, and I am not ultimately ple from their government. paper but released previously classified setting the goal that I can stop this That sounds terrible, protecting you legal memos from the Office of Legal nomination. I am here today to draw from your government. That is what Counsel on the enhanced interrogation attention to a constitutional principle, the Constitution was about. The Con- program, saying it was consistent with to try to get the administration to stitution wasn’t written to restrain their commitment to the rule of law, admit publicly they will not kill Amer- your behavior, it was written to re- but today, in response to an eminently icans who are not involved in combat. strain your government’s behavior. reasonable request, is giving the Sen- But it hasn’t so much to do with Bren- A lot of people get confused when we ator from Kentucky what I think can nan or his nomination, it has to do talk about religion and the first appropriately be called the Heisman, or with a constitutional principle. Ulti- amendment. But if you read the first stiff arm, and denying him access to mately, Brennan will be approved. He amendment, it says Congress shall that. will be the head of the CIA. This will be make no law. It doesn’t say anything So I wanted to come to the floor and a blip in his nomination process. I hope about your religious preferences. It is make that point and ask those ques- people will see it more as an argument not supposed to limit your involvement tions and say again that I admire the for how important our rights are; that in government. It is really not sup- Senator’s fortitude and willingness to no one, no branch of government, no posed to limit so much religious in- stand up and challenge the administra- individual politician should be above volvement in government or even reli- tion on this issue. It would be easy to the law, should be able to dictate and gion. satisfy the Senator’s request. He has say what they think the law is. We have a prayer every morning in made that very clear. He is not intend- We had some of this even under a Re- the Senate. You can’t have it in your ing to block a vote on this nomination, publican President. I was critical of public school, but we have a prayer but he is intending to get the informa- President Bush for saying he had the every morning. Explain that to me. We tion he has requested, and he is enti- ability to interpret the law; he had the have the Ten Commandments around tled to it. ability to put signing statements, here. So does the Supreme Court. But

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00049 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1186 CONGRESSIONAL RECORD — SENATE March 6, 2013 you can’t have it in your local school. debate over whether the Constitution jot this down on a piece of paper. If I think we have gotten confused on is here or whether it extends beyond they don’t intend to do it, why not tell things. It was really about government the borders. But the practical matter is us? getting involved in your religion. we can’t really enforce the Constitu- When your government won’t tell We didn’t want to establish a church. tion beyond our borders. You sort of you they are not going to do some- We thought it was a bad idea to have consent to your Constitution, you sort thing, when they won’t answer, no, an official church, and I still think it is of consent to your government by vot- they don’t have the power, they are a bad idea to have an official church ing. We have that arrangement in our saying to you, yes, they have the because then the government would be country, but it doesn’t happen in Mex- power. telling the church what to do. But it is ico, Europe, or Afghanistan, and it cer- If they will not answer your question really all about the documents that we tainly doesn’t happen in the middle of and say: No, I will not kill Americans have protecting you from an over- hostilities. So you don’t really get due who are not involved in combat here at bearing government. process over there. That is the real home, if they cannot tell you that, Your government was given a few de- danger. That is the problem. That is they are saying, yes, they will kill fined powers, the enumerated powers. the rub. Americans not involved in combat. It There are 17, 19—depends on how you This whole thing is about the use of is a simple question. want to count them—but there are not authorization of force that was passed Conor Friedersdorf writes for the At- very many. They are few and defined. after 9/11 to go to war in Afghanistan. lantic, and he writes: But your liberties are many—basically, If you had voted on that—you didn’t; Does President Obama think that he has unlimited and undefined. your leaders did. But had you voted on the power to kill American citizens on U.S. When you read the ninth and tenth that, you would have thought: I am soil? If he accuses a guy in the Arizona amendment, it says those rights not going to war in Afghanistan to get the desert or rural Montana of being an Al Qaeda explicitly given to government are left people who attacked us on 9/11. terrorist, is it ever kosher to send a drone over to blow him up, as was done to— to the States and the people. They are I was all for it. I still am. I think yours. They are not to be disparaged. that was something we needed to do. People overseas— These are important debates we are We couldn’t let people attack us, but I Or is it never okay to drone strike an— having. When Montesquieu talked don’t think you would have thought, American citizen to death here in Amer- ica? about the separation of powers and the when you voted for that, you were vot- It’s an easy question. different checks and balances, he said: ing for a worldwide war with no end Answering it wouldn’t jeopardize national There can be no liberty when you com- that included America as part of the security in any way. bine the executive and the legislative. battlefield. That is the real problem. So why do Obama administration officials Likewise, I would add to that there can The administration, John Brennan, keep dodging it? be no liberty when you combine the ex- who wants to be head of the CIA, and When the President was asked this ecutive and the judiciary. Eric Holder, the Attorney General, question in a Google Plus interview So if you allow the President to tell they all believe—and many here be- last week, he said: Well we might have you he can have drone strikes on lieve this also—there is no geographic different rules inside the country than Americans, on American soil, you are limit to the war. It is not in Afghani- outside the country. allowing him to be not only the execu- stan. They say it is everywhere, but Well, that sort of assumes he thinks tive, you are allowing him to be the ju- they say everywhere includes here. he can kill Americans here, and he diciary. If he makes it secret, nobody Here is the problem: If you don’t might have different rules. He might can object. think you can apply due process in the have more protections, but he is not I remember one time I was com- middle of a war, what happens if they going to tell you. He says it is secret. plaining to another Senator about say the war is here? That means you I, for one, am not very comforted. these things called suspicious activity don’t get any protection. So if you are When the President says he hasn’t reports. Your bank is required to file accused of a crime, I guess that is it. killed any Americans yet and he them on you. In fact, if you pay your I can’t imagine that is what we want doesn’t intend to kill any Americans— Visa bill through your bank, over the as Americans. I just can’t imagine we but he might—that doesn’t really com- phone, you have done a wire transfer, would believe or acquiesce or allow the fort me so much. I don’t think that is and you can be part of a suspicious ac- President to basically say he is going strong enough language. tivity report. If you turn cash in to the to make the decisions for us; that he The Presidential oath of office says, bank or get cash out of the bank over basically would kill noncombatants in ‘‘I will preserve, protect, and defend a certain amount, you can get a sus- America. the Constitution.’’ It doesn’t say: I in- picious activity report. I, frankly, think eventually he will tend to. It doesn’t say: I intend to pre- I was concerned about this because admit—it would be nice if he would serve, if it is convenient; I intend to there have been 8 million filed since admit it tonight—that he is not going preserve, protect, and defend the Con- 9/11, and the Senator’s response is he to do it. If anybody has a phone, give stitution if it is convenient. has never heard anybody complain him a call. Let him know we would like In his memo, he says he is only going about it. The reason nobody complains to know an answer. And I think it to kill people if it is infeasible. To me, is they are secret. They don’t tell you would be appropriate. that sounds a little bit like, yes, it is they are doing this. When the Attorney General came tough. It is inconvenient, so I am going So if you get on the kill list, it is a this morning to the Judiciary Com- to preserve, protect, and defend the little hard to complain. We might have mittee to answer questions, he was Constitution as long as it is feasible. It a kill list for a couple of years in the asked repeatedly this question: Can just doesn’t inspire me. United States, on American citizens, you kill noncombatants if they are sit- Friedersdorf goes on to say with re- and nobody might complain because it ting and having tea somewhere in gard to the President’s answer in is secret. You don’t know you are on America? He kind of weebled and wob- Google: ‘‘But he still didn’t give a the list. bled and went around the issue. Fi- straight answer.’’ So I think it is important that we nally, we said: We want to know, is it Counterterrorism adviser John Bren- have a big debate and discussion over constitutional? Do you think you can nan—whose nomination we are talking this; that we let the President know he do this? about—won’t answer either. He finally doesn’t get to write all of these rules Instead of saying we might not, we did answer, but only under duress. His on killing American citizens; that the don’t intend to—and it sounds like he answer was actually the appropriate Constitution still applies in our coun- finally admits at the end that it is un- answer. He said the CIA can’t do this in try. constitutional. But then why can’t we America. But it begs the question—be- The reason this is a big debate is that get them to issue a statement? Why cause the CIA is not in charge of the when you are in a war, the Constitu- can’t we get them to say explicitly: We drone program; the Department of De- tion doesn’t always apply on the bat- are not going to do this? I see no rea- fense is. So we need an answer from the tlefield in another country. There is a son. It would take them 5 minutes to Department of Defense, and we get an

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00050 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1187 answer from Eric Holder that says they Spencer Ackerman wrote, in Wired, doing and in the end he is taking Presi- haven’t done it yet, they don’t intend about this. The title is, ‘‘How Obama dential power to a new level beyond to do it, but they might. He doesn’t say Transformed an Old Military Concept what President Bush could have ever specifically that they will not. So He Can Drone Americans.’’ imagined. So Bush contended that they These answers have been out there ‘‘Imminence’’ used to mean something in could invade because they were uncer- for a while, and we have been through military terms; namely, that an adversary tain about what Saddam could do. He: this and around this and asked ques- had begun preparations for an assault. In . . . redefined ‘‘imminence’’ to mean the tions. These are simple questions. order to justify his drone strikes on Amer- absence of dispositive proof refuting the ex- These are questions I can’t imagine ican citizens, President Obama redefined the istence of an unconventional weapons pro- why we can’t get an explicit answer concept to exclude any actual adversary at- gram. . . . tack. to—unless the answer is no. Unless the Imminence is the absence of proof answer is that they don’t want limita- It is important to get that and to that you don’t have something. So you tions on their power. Unless the answer register that he has defined a potential have to prove a negative, you have to is that they don’t want to be con- imminent attack to mean that it ex- prove you don’t have something, or you strained by the Constitution. Unless cludes any actual adversary attack. So are an imminent threat. their answer is that the Bill of Rights you are under imminent attack but That would be sort of like saying to doesn’t apply to them when they think there is no attack. It is a bizarre logic, Mexico: Prove to us you don’t have a it doesn’t apply to them. And that is but it is done to widen what they can nuclear weapon or we are going to the real danger. do to grant them more power. bomb Mexico City. It is a bizarre no- Eric Holder—your Attorney Gen- Ackerman goes on to say: tion of imminence. So Mexico is now eral—was asked about this and asked That’s the heart of the Justice Depart- an imminent threat to the United about the fifth amendment. He was ment’s newly leaked white paper— States because they are unwilling to asked: Does it apply? These drone memos— prove they don’t have a nuclear weap- He said: Well, it applies when we first reported by NBC News, explaining on. You can see the convoluted logic think it applies. why a ‘‘broader concept of imminence’’ (.pdf) that occurs here. What does that mean? I know it is a trumps traditional Constitutional protec- tions American citizens enjoy from being But when U.S. troops invaded, they learned debatable question—overseas, Amer- killed by their government without due proc- that Saddam did not possess what Bush or ican citizens, this and that—but I don’t ess. It’s an especially striking claim when Condoleezza Rice famously termed a smok- think it is a debatable question. In our considering that the actual number of Amer- ing gun that could come in the form of a country, does the fifth amendment ican citizens who are ‘‘senior operational mushroom cloud. The undated Justice Department white leader[s] of al-Qaida or its associated forces’’ apply? I don’t know how you can argue paper, a summary of a number of still-classi- is vanishingly small. As much as Obama the fifth amendment doesn’t apply. I fied legal analyses, redefines imminence talks about rejecting the concept of ‘‘per- don’t know how you can argue we have once again. Al-Qaida leaders are ‘‘contin- petual war’’ he’s providing, and institu- an exemption to the Bill of Rights ually planning attacks,’’ the undated white tionalizing, a blueprint for it. when we want to. paper says, and so a preemptive attack ‘‘does But this is the President—the same This is what we are talking about. not require the United States to have clear President who argued he gets to deter- Don’t think if you give the President evidence that a specific attack on U.S. per- mine when the Senate is in recess be- the power to kill Americans, that it is sons and interests in the immediate future.’’ cause he didn’t get a few of his ap- a temporary power. Realize what this means. First of all, pointees last year, also argued that the The use of authorization of force, nobody has an al-Qaida card. I think Senate was in recess and said he could they say, has no geographic limit and we say every terrorist in the world is appoint anybody he wanted—and he no temporal limit. There is no end to in al-Qaida because then they have to did. the war. There is no end to the less- prove otherwise. So nobody has an al- It went to court, and the court re- ening or the abrogation or the giving Qaida card. Everyone is in al-Qaida. So buked him. The court said: You don’t up of your rights. If you give up your we say that unless you can prove that get to decide all the rules for all of rights now, don’t expect to get them you are not attacking us, because we government. The Senate decides when back. know the history of al-Qaida is to con- they are in recess; you decide when you Ackerman goes on: tinue to attack us, we can preemp- are in recess, but you don’t get to de- Imminence has always been a tricky con- tively attack you. cide the rules for the Senate. cept. It used to depend on observable battle- But now we are talking about bring- They struck him down. Has he field preparations, like tanks amassing near ing that kind of gobbledygook, jumbled a front line, missile assemblage, or the fuel- obeyed the ruling? Has he listened to logic to the United States. Are these ing of fighter jet squadrons. Even under going to be the standards by which we what the court did? Has he been chas- those circumstances, there has been little tised and rebuked by the court? consensus— kill Americans? Ackerman goes on: The people he appointed illegally are internationally about various wars For an adversary attack to be ‘‘imminent’’ still doing that job. All of their deci- that we have had in the past. sions are probably invalid. So for the and a preemptive U.S. response justified, President George W. Bush contended that U.S. officials need only ‘‘incorporate consid- last 2 or 21⁄2 years—however long these the U.S. had to invade Iraq not because the erations of the relevant window of oppor- recess appointments have been out government knew Saddam Hussein was tunity, the possibility of reducing collateral there—all of these decisions are going about to launch an attack upon America, but damage to civilians, and the likelihood of to be a huge mess. They have made all because it didn’t. heading off future disastrous attacks on these decisions, and it is going to be Because it was unknown, because we America.’’ uncertain whether the decisions are fear things we don’t know—we don’t So if we say al-Qaida is always at- going to be valid. All of this happened know so we conclude yes, and we pre- tacking us and we say you are part of because for some reason he thought he emptively attack. al-Qaida, then we can kill you. But the had power he doesn’t actually have. I Bush contended that the uncertainty about thing is, that is an accusation. If you think there are some analogies to what Saddam’s weapons of mass destruction aug- are a U.S. citizen, you live in San we are talking about. mented by 9/11’s warnings of shadowy ter- Francisco or Houston or Seattle and Now, one of the rules he said he rorist groups plotting undetectable attacks someone says you are a member of al- would adhere to, as far as the drone redefined ‘‘imminence. . . . ’’ Qaida, should not you get a chance to strikes overseas, was that there has to So when I say this is not a partisan defend yourself? Shouldn’t you get to be an imminence to the threat. Then battle, I am true to my word. President go to court? Shouldn’t you get a law- his team of lawyers followed up and Bush started this. President Obama is yer? Are these not things that we concluded: Well, it has to be imminent, expanding this. would want in our country? but it doesn’t have to be immediate. I The real irony, though, is President Ackerman goes on. He says: think only a gaggle of government law- Obama ran as the anti-Bush candidate. There is a subtlety at work in the Justice yers could come together and say ‘‘im- He ran as the guy with the real moral Department framework. It takes imminence minent’’ doesn’t mean ‘‘immediate.’’ umbrage at what President Bush was out of the context of something an enemy

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00051 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1188 CONGRESSIONAL RECORD — SENATE March 6, 2013 does and places it into the context of a we think they are in a caravan going have become the rule rather than the policymakers’s epistemic limitations. from a place where we think there are exception. But at least Eugene Robin- So really we are not looking to say bad people to another place where son is someone who is consistent in his someone has a rocket launcher on their there are bad people, that is a fairly application of criticism. He says he shoulder. We are saying because we loose standard. So, let’s say there are would have gone ballistic had George think that these people do not like us people going from a Constitution Party W. Bush done exactly what President and will continue to attack us, we can meeting to a Libertarian Party meet- Obama is doing and his response is, ‘‘It preemptively kill them. ing. Both these groups don’t like big makes no difference that the president Realize that this kind of logic is government. They hate big govern- making this chilling claim is Barack being used overseas, and that is debat- ment. They are opposed to government. Obama. What’s wrong is wrong.’’ able. But now they are going to bring They are nonviolent as far as I know, The question of when we get due this logic to America. So when you but they were on the Fusion List for process, whether it applies to you here read stuff like this, that imminence is potential terrorists. Are we going to or overseas, is a big question. But out of the equation and in its place we kill people in a caravan going from one under our concept of government, it is are going to put a ‘‘policymaker’s epi- meeting to the next? Are we going to not a question that should be left up to stemic limitations’’ or estimation— have to name the person we kill in the one branch of government. You know, that is how we are going to decide who United States? should one branch of government get is going to be killed in America? All we You say, oh, that is absurd. We would to decide that you don’t get due proc- know is what we have in the foreign never do that. Well, what about whose ess? That the fifth amendment doesn’t drone program. phone we tap? Do we have to name that apply to you? This is an incredibly im- We have no evidence yet because no person? It used to be the requirement. portant question. John Brennan and It has gotten less so over time. We one has told us. They just told us they the nomination today pale in compari- have gotten to the point where the have not killed anyone yet, they don’t son to that question. Does the Presi- fourth amendment protections to name intend to, but they might—but they dent alone, unilaterally, get to decide the person, place, and what you want haven’t told us what the rules are they whether the fifth amendment applies to look at have become looser over are going to use in this context—what time. I think it is a legitimate ques- to you? Or can he say that he is going rules are going to be used in America? tion. If you are going to target Ameri- to secretly accuse you of a crime and If you are going to kill noncombatants, cans on American soil, are you going to that the fifth amendment doesn’t apply people eating dinner in America, there name them first? Are you going to tell to you? have to be some rules. Does the Con- us who is on the list? The list overseas This is worrisome because the Attor- stitution apply? is secret so the question is, is the list ney General has been asked about the When Eric Holder was asked about going to be secret in the United States? applicability of the fifth amendment to the fifth amendment, he said the fifth How do you get your due process if you the drone program. He said the fifth amendment applies when they think it don’t know you are on the list? It is a amendment applies when they think it applies. He says the executive branch is little bit late after the drone attack to applies. He says they try to give some very careful and they are very con- say: Hey, it wasn’t me. I didn’t really kind of process. It is not due process. scious of the fifth amendment and they mean what I said in that e-mail. I Due process involves a jury and a judge do try to apply the fifth amendment should not have made that comment on and public trial and an accusation. By when they can. line. process, they mean they get together I mean, it is a different story when Some liberals think they have had a and look at a PowerPoint presentation. you are talking about a war overseas double standard on this and haven’t They go through some flash cards and and you are talking about people who been very good. Some have been more they decide who they are going to kill. live in our country. You don’t get the honest in their criticism of the Presi- That is the process. They may say you option of determining when the fifth dent being hypocritical. The President are demeaning the process by treating amendment applies. seemed to be concerned at one time it flippantly, about whether they are Ackerman goes on to say: about warrants for wiretaps. He seemed serious about the process. Is that the If there is a reasonable debate about what to be concerned about Americans and process you want for someone in Amer- imminence means in an era of terrorism, and torture. He seems to have lost a little ica? Do you want in America, for the what standards ought to be accepted for de- bit of that when we talk about whether process for you being accused of a fining it as an international norm, that to kill Americans on American soil. crime, to be a PowerPoint presentation framework— Eugene Robinson, whom I would con- by one branch of government, maybe in where they talk about that they are sider a liberal pundit, wrote an article a political party you are part of, maybe thinking about what the terrorist is printed in the San Antonio News called in a political party you are not part of? thinking rather than what the terrorist ‘‘Judicial Review Needed For Drone There are things in politics that are is doing basically preempts the whole Hits Of Citizens.’’ He begins this way. partisan. I don’t think I would want idea of determining or trying to discuss He says: Americans to be subject to any par- or figure out what imminence really If George W. Bush had told us that the tisanship with determining whether means. ‘‘war on terror’’ gave him the right to exe- you get the fifth amendment, whether Ackerman goes on: cute an American citizen overseas with a you get a jury trial. I can’t imagine All that matters to justify a drone strike missile fired from a drone aircraft, without anybody would. I don’t care whether it attack is for the U.S. to recognize that it due process or judicial review, I’d have gone ballistic. is a Republican or Democrat, I don’t can’t be all-knowing. want a politician deciding my inno- These are Eugene Robinson’s words. So interestingly it’s not intelligence cence or guilt; it is as simple as that. If he had heard this about George Bush, that drives the attack, it’s you saying The President should say unequivo- he would have gone ballistic. To his I don’t know but I am worried that cally we are not going to kill non- credit he says: these people do attack us continuously, combatants, we are not going to do so by me not knowing their plans, that It makes no difference that the president making this chilling claim is Barack Obama. PowerPoint presentations in the Oval is a justification for an attack. Realize, What’s wrong is wrong. Office on Tuesdays. We are not going to that could be the standard in the Robinson goes on to say: have Terrorist Tuesdays for Ameri- United States. cans. He should say that. I don’t think The moral and ethical questions posed by It’s the logical equivalent of the CIA’s sig- the advent of drone warfare are painfully it is that hard. It is an easy question to nature strikes, which target anonymous complex. We had better start working out the President. military-age males in areas where terrorists some answers because, as an administration Mr. President, are you going to have operate— spokesman told me recently, drone attacks Terrorist Tuesdays for Americans? This should be the thing that should are the ‘‘new normal’’ in the ongoing strug- Are they going to put flashcards of just scare the you-know-what out of gle against terrorist groups such as al-Qaida. Americans up and pass them around you. If we are killing people overseas These attacks have become normal. the table in the Oval Office with pic- who we don’t know their name because They have become commonplace. They tures of Americans on them and decide

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00052 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1189 who is going to die and who is going to valuable weapon that has helped us to Gregory Johnsen, a Yemen specialist at live? Are they going to publicly charge decimate our enemies. I am just saying Princeton University, believes that these people or are they going to secretly it is different in a warzone than it is in ‘‘signature’’ strikes—‘‘or something an awful charge people? Are they going to have our country. If the President cannot lot like them’’—have actually been going on for quite a while in Yemen. any kind of trial or any kind of rep- acknowledge that being in battle some- resentation? Does anybody get a where is distinctly different than walk- He goes on to say that he thinks that chance to say: Hey, it wasn’t me. I ing down the street in Washington or ‘‘Awlaki’s son was killed just a month didn’t do it. Does anybody get a chance Baltimore or Philadelphia, it is beyond after his dad,’’ in a signature strike. He to represent or have representation? me how we can let him get away with says he thinks ‘‘ . . . there have been 13 This is an article we found inter- that. attacks in Yemen in 2012.’’ esting also by Noah Shachtman. This . . . militants were chosen for— When we talk to people around here, they say there are no signature strikes. was also printed in ‘‘Wired.’’ It is These drone strikes— called ‘‘U.S. Drones Can Now Kill Joe What are we supposed to believe? A lot robotic elimination based solely on their in- of people are saying they have evidence Schmoe Militants in Yemen.’’ This is telligence ‘‘signatures’’—their behavior, as not quite about the domestic issue so captured by wiretaps, overhead surveillance and have heard there are signature much and a little bit about the foreign and local informants. strikes. Those in power who have the issue. However, there is a linkage be- We don’t know the names of the peo- secret say we are not. It is hard to tween the foreign drone attacks and ple who were killed in these drone know what to believe. what will become the domestic drone strikes except to know it was largely I think one thing that is easy to un- attacks. in the tribal areas of Pakistan. We are derstand, though, is that I cannot Why? Because those are the only targeting people and we do not know imagine we would allow such a stand- drone attacks we know and we have their names. We cannot know much ard in the United States where we not been told that there will be an about them if we don’t know their don’t name whom we are killing and American plan for killing Americans names. We are targeting them by their that we kill people involved in a cara- and a foreign plan for killing Ameri- signatures, where they go, and whom van. I think it should be pretty easy cans or foreigners overseas. We have they visit. for the President to say there will be not been told that. We have not been Probably, inevitably, the milkman or no signature strikes in America. told anything. We have been told to go the doctor has to go to the terrorist Shachtman goes on to say: and sit in a corner—including the Sen- camp. Maybe some of them are Many of them have hit lower-level mili- ate and Congress—and be quiet. They complicit, but some of the people who tants, not top terror names. This authoriza- have a process. They have a may not be quite the people we think tion only makes targeting killings legally PowerPoint presentation, and they and bureaucratically kosher. we are after are in a caravan going But despite the increased pace of strikes— have flashcards. I don’t think that is from city to city. Maybe they are in those 13 attacks are more than they were in adequate. the local food distribution business and all of 2011—al-Qaida in the Arabian Penin- Noah Shachtman writes in ‘‘Wired’’: make good money selling it. But the sula. . . . In fact, White House counterterror- In September, American-born militant question is whether that is the kind of ism adviser John Brennan last week called it Anwar al-Awlaki was killed by a U.S. drone standard we would like to have in the terror group’s ‘‘most active operational strike in Yemen. In the seven months since, America. Would a signature strike be franchise.’’ the al-Qaida affiliate there has only grown in acceptable in America? These are ques- All of which leads Micah Zenko at the power, influence, and lethality. The Amer- Council of Foreign Relations to wonder ican solution? Authorize more drone at- tions that ought to be asked and the where this drone campaign is going. ‘‘By any tacks— President ought to answer. common-sense definition, these vast tar- These people are being targeted by It kind of brings me back to that geted killings should be characterized as their signature. Their behavior is cap- quote from the CIA agent. He said America’s Third War since 9/11,’’ he writes. tured by wiretaps, overhead surveil- ‘‘Unlike Iraq and Afghanistan—where gov- drone attacks are like a lawnmower, lance, and local informants. ernment agencies acted according to articu- but when you quit mowing the lawn, Shachtman goes on to say: lated strategies, congressional hearings and the terrorists come back; sometimes A similar approach might not work in this press conferences provided some oversight they may be more numerous. The ques- case, however. and timelines explicitly stating when the tion is, Can they kill them all? Can U.S. combat role would end—the Third War In Yemen, where we have a lot of they kill every terrorist in the world? is Orwellian in its lack of cogent strategy, drone strikes, he says: For every terrorist they kill, maybe 3 transparency, and end date.’’ or 4 pop up—maybe 10 pop up. What Every Yemeni is armed. ‘‘Since these attacks are covert, the ad- happens to the families who happen to It is going to be kind of hard to tell ministration will offer no public defense, he who is friend or foe when they are all adds. But ‘‘it begs [CIA director David] be the ones whom we make mistakes Petraeus’ haunting question at the onset of on or happen to be in the wrong place fighting and they are all mad at each other. the Iraq war in 2003: ‘‘Tell me how this at the wrong time? ends?’’ I know the President’s spokesman So how can they differentiate between sus- pected militants and armed Yemenis? That is a question I have for the found it cute to say: Oh, they should President: How does the war end? How Shachtman goes on to say: have chosen more responsible parents. do we win? How do we declare victory I don’t find that endearing or cute. I What’s more, al-Qaida in the Arabian Pe- ninsula—the Yemeni affiliate of the terror and when will the war end? The prob- find it reprehensible to say that is the lem is we have come up with a scheme standard. We have to ask the question: collective—‘‘is joined at the hip’’ with an in- surgency largely focused on toppling the that basically has no geographic limi- Is that going to be the standard in the local government, another official told the tations on where the war is fought. It United States? Are we going to kill Washington Post last week. So there’s a very is harder to defeat an enemy if the en- people because they are related to bad real risk of America being ‘‘perceived as tak- tire war is the battlefield. It is not people and then flippantly say they ing sides in a civil war.’’ only a problem with determining vic- should have chosen better parents after The Yemeni drone campaign—actually, two separate efforts run by the CIA and the tory, it is a problem with ultimately we kill a 16-year-old? Shachtman goes coming home. on to write: military’s Joint Special Operations Com- mand—will still be more tightly restricted The other problem with having no ge- The American solution? Authorize more than the Pakistani drone war at its peak. ographic limitations to this is saying drone attacks—and not just against well- Potential targets need to be seen or heard that war is here; the war is in America known extremists like Awlaki, but against doing something that indicates they are nameless, faceless low-level terrorists as and the battlefield here at home is one plotting against the West, or are high up the well. where we are going to have rules or the militant hierarchy. laws of war are going to apply in our A relentless campaign of unmanned air- ‘‘You don’t necessarily need to know the strikes has significantly weakened al-Qaida’s guy’s name. You don’t have to have a 10- everyday life. central leadership in Pakistan. sheet dossier on him. But you have to know Before we were talking about drone I am not saying we should not use the activities this person has been engaged strikes in America, the Center for Con- drones. I am not saying they are not a in,’’ a U.S. Official tells the Journal. stitutional Rights has been concerned

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00053 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1190 CONGRESSIONAL RECORD — SENATE March 6, 2013 even about American citizens overseas. that, the standard becomes so loose, we cluding the death of Osama bin Laden, as On September 30, they put out this re- really won’t have what we really ex- signature achievements that argue for Presi- lease which said: pect as Americans. dent Obama’s reelection. The administration has taken tentative steps toward greater Today, in response to the news that a mis- The Center for the Constitutional transparency, formally acknowledging for sile attack by an American drone aircraft Rights goes on with this comment by the first time the United States’ use of had killed U.S. citizen Anwar Al-Awlaki in Pardiss Kebriaei, a senior staff attor- armed drones. Yemen, the Center for Constitutional Rights, ney. They went to the court, and they Less visible is the extent to which Obama which had previously brought a challenge in asked for information on some of these has institutionalized the highly classified federal court to the legality of the authoriza- drone strikes, and they were denied. practice of targeted killing, transforming ad- tion to target Al-Awlaki in Yemen, released hoc elements into a counterterrorism infra- the following statement: ‘‘The assassination She responds: structure capable of sustaining a seemingly of Anwar Al-Awlaki by American drone at- In dismissing our complaint, the district permanent war. tacks is the latest of many affronts to do- court noted that there were nonetheless dis- turbing questions raised by the authority Spokesmen for the White House, the Na- mestic and international law’’ . . . ’’The tar- tional Counterterrorism Center, the CIA and geted assassination program that started being asserted by the United States. There certainly are disturbing ques- other agencies declined to comment on the under President Bush and expanded under matrix. Privately, officials acknowledge that the Obama Administration essentially tions that need to be asked again and the development of the matrix is part of a se- grants the executive the power to kill any answered by the U.S. Government ries of moves, in Washington and overseas, U.S. citizen deemed a threat, without any ju- about the circumstances and the kill- to embed counterterrorism tools into U.S. dicial oversight or any of the rights afforded ing and legal standard that governs it. policy for the long haul. by our Constitution. If we allow such gross In October 2012 there was an article White House counterterrorism adviser overreaches of power to continue, we are set- by Greg Miller in the Washington Post. John O. Brennan is seeking to codify the ad- ting the stage for increasing erosions of civil ministration’s approach to generating cap- liberties and the rule of law.’’ It was entitled ‘‘Plan for Hunting Ter- rorists Signals U.S. Intends to Keep ture/kill lists, part of a broader effort . . . Now what they have said there is not Adding Names To Kill List.’’ The edi- CIA Director David Petraeus is pushing for completely noncontroversial, and I an expansion of the agency’s fleet of armed tor notes that this project was based on might even take some issue with the drones. The proposal, which would need interviews with dozens of current and fact that they are saying the Constitu- White House approval, reflects the agency’s former national security officials, in- tion applies everywhere. Some argue it transformation into a paramilitary force and telligence analysts, and others who applies to U.S. citizens whether here or makes clear that it does not intend to dis- have examined and were examining the mantle its drone program and return to pre- at home, and I think there is some de- U.S. counterterrorism policies and the September 11 focus on gathering intel- bate as to that. I think the only place practice of targeted killings. ligence. we can guarantee that the Constitution This is the first of three stories that The U.S. Joint Special Operations Com- applies is in our country. The only bor- appeared: mand, which carried out the raid that killed bin Laden, has moved command teams into der we ultimately control is in our Over the past 2 years, the Obama adminis- country. The courts we ultimately con- suspected terrorist hotbeds in Africa. A rug- tration has been secretly developing a new ged U.S. outpost in Djibouti has been trans- trol are here. However, the entity blueprint for pursuing terrorists, a next-gen- formed into a launchpad for counterterror- eration targeting list called the ‘‘disposition doing the killing is the American mili- ism operations across the Horn of Africa and tary killing a citizen overseas. So I matrix.’’ The matrix contains the names of ter- into the Middle East. personally have been of the belief that The Joint Special Operations Command what we should do is try people for rorism suspects arrayed against an account- ing of the resources being marshaled to has also established a secret targeting center treason. It is one of the four crimes in track them down, including sealed indict- across the Potomac River from Washington. the Constitution that is actually la- ments and clandestine operations. U.S. offi- The current and former U.S. official said the beled, displayed, and given to the Fed- cials said the database is designed to go be- elite command’s targeting cells have tradi- eral courts. yond existing kill lists, mapping plans for tionally been located along the front lines of There are specifics on what is actu- the ‘‘disposition’’ of suspects beyond the its missions, including Iraq and Afghanistan. reach of American drones. But the joint committee has now created a ally treason. I personally don’t think it national capital region task force that is a would be that hard to try people for Although the matrix is a work in progress, the effort to create it reflects a reality set- 15-minute commute from the White House so treason. I think we could do it with- ting in among the nation’s counterterrorism it can be more directly involved in delibera- out—we could start at the very top ranks: The United States’ conventional wars tions about the al-Qaida list. court and not have appeal after appeal. are winding down, but the government ex- The developments were described by cur- I think there was evidence that al- pects to continue adding names to kill or rent and former officials from the White Awlaki could have been tried in Fed- capture lists for years. House as well as intelligence and counterter- eral court for treason and then tar- Among senior Obama administration offi- rorism agencies. Most spoke on the condition geted. cials, there is a broad consensus that such of anonymity because of the sensitivity of the subject. These counterterrorism compo- People say: Why would we want to operations are likely to be extended at least another decade. Given the way al-Qaida con- nents have been affixed to a legal foundation give any protection to people who have tinues to metastasize, some officials said no for targeted killings the Obama administra- denounced their citizenship, who hate clear end is in sight. tion has discussed more openly over the past America, and who are conspiring with ‘‘We can’t possibly kill everyone who year. In a series of speeches, administration the enemy? wants to harm us,’’ a senior administration officials have cited the legal basis, including I guess the way I would respond is said. ‘‘It’s a necessary part of what we do the congressional authorization to use mili- that I don’t like murderers and rapists . . . We’re not going to wind up in 10 years in tary force. either. I don’t like violent people who a world of everybody holding hands any say- This really gets to the crux of the ing, ‘‘We love America.’’ commit crimes in our country. But be- That timeline suggests that the United matter, which is that the authoriza- cause we prize our system so much and States has reached only the midpoint of tions for all of these activities around because we want to make sure we ar- what was once known as the global war on the world and then ultimately here at rest, convict, and possibly execute the terrorism. Targeting lists that were regarded home all come from the use of author- right person, we have trials. So we as finite emergency measures after the at- ization of force when we went to war think it is pretty important that we tacks of September 11 are now fixtures of the against Afghanistan after 9/11. The have trials. So I agree when people say national security apparatus. The rosters ex- problem is, how do we finally conclude these are bad people. Yes, these are bad pand and contract with the pace of drone war? Is perpetual war OK with every- strikes but never go to zero. people. Many of them deserve what Meanwhile, a significant milestone looms: body? How would we conclude the war they get. The problem is, if we give up The number of militants and civilians killed in Afghanistan? on the process of how we do it, if we in the drone campaign over 10 years will The President said he is bringing give up on the Constitution, or if we soon exceed 3,000 by certain estimates. troops home. It is actually another say that kind of standard is going to be We have heard an estimate recently thing I admire about the President. I brought back to the homeland, or if we by a Member of the Senate who said think it is time to come home. I think say America is a battlefield, there is a 4,700 have been killed. we have accomplished our battle. I real problem. There is a problem in The Obama administration has touted its think we have accomplished our plan. doing that because I think if we do successes against the terrorist network, in- But the thing is, if we are going to end

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00054 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1191 the war, why would we not end the aren’t the ultimate answer. There are a nated to be the head of the CIA. It is war? I think it means we end that war billion Muslims in the world. Maybe about principles that are bigger than and we go somewhere else. There is a there needs to be some component of the people. It is about something big- question of whether we can continually this that isn’t just the killing fields. I ger and larger than the people in- afford perpetual war. There is a ques- am not saying that many of these peo- volved. It is about constitutional prin- tion of whether it is advisable. There is ple aren’t allied against us and would ciples that we should not give up on. a question of whether or not we go so attack us and they don’t deserve to die; I think we should all judge as inad- many places that maybe in the end we I am just not sure it is the ultimate an- equate the President’s response when are doing more harm than good. swer, it is the ultimate way. I am also he says he has not killed Americans in The thing about the wars as they go concerned that the people who are the America yet, he does not intend to, but on is we have to figure out a way to try strongest proponents of this are also that he might. I do not think that is a to end war. We have to figure out a those who want to bring the war to response that we should tolerate. way to try to limit war. Our goal America and say that America is part So as we move forward in this debate, shouldn’t be to expand war to propor- of this perpetual battlefield. we need to understand and we need to tions that have no limit. To say there The United States now operates multiple fight for something that is classically are no geographic limits on war I don’t drone programs, including acknowledged American, something we are proud of U.S. military patrols over conflicted zones in and something our soldiers fight for; think should be an admirable thing. I Afghanistan and Libya and classified CIA think it is a mistake in policy to say that is, our rights, our individual surveillance flights over Iran. Strikes rights, our right to be seen as an Amer- we can have perpetual war with no lim- against al-Qaida, however, are carried out its, with no geographic limits, with no under secret lethal programs involving the ican, to be tried in a court by our temporal limits. CIA and the CSOC. The matrix was developed peers. I think if we are to give up on It is hard to end a war anymore, by the NCTC under former Director Michael that it is a huge mistake. though. It used to be easy. In the old Leiter to augment those organizations’ sepa- One of the things we have to ask is, rate but overlapping kill lists. The result is days, you won a war and you came What kind of standard will there be? If a single, continually evolving database in there is going to be a program in Amer- home. The problem is that we can’t which biographies, locations, known associ- even end the Iraq war. The Iraq war has ica, what kind of standard? If we are ates, and affiliated organizations are all going to kill Americans in America, been over for a couple of years now—at catalogued. least a couple of years. I tried to intro- So are strategies for taking targets down, what kind of standard will there be? If the standard is to be sympathy, duce a resolution to end the Iraq war, including extradition requests, capture oper- ations and drone patrols. you can imagine the craziness of this. to deauthorize the war, and it was Obama’s decision to shutter the CIA’s se- Mr. President, I would at this time voted down. I think I got less than 15 cret prisons ended a program that had be- yield for a question, without yielding votes. How do we end war? come a source of international scorn, but it the floor, from my colleague from Kan- The problem is that people take also complicated the pursuit of terrorists. sas. these resolutions and they stretch Unless a suspect surfaced in the sights of a The PRESIDING OFFICER. The Sen- drone . . . the United States had to scramble them and they pull them and they con- ator from Kansas. tort them to mean things that really to figure out what to do. ‘‘We had a disposition problem,’’ said a Mr. MORAN. Mr. President, thank they were never intended to mean. I former U.S. counterterrorism official. . . . you. don’t think being involved in a pro- The database is meant to map out contin- Through the Chair, Mr. President, I tracted war in Yemen or Mali or any of gencies, creating an operational menu that would like to ask the Senator from these other places was intended when spells out each agency’s role in case a sus- Kentucky a couple of questions. we went to war in Afghanistan. I just pect surfaces in an unexpected spot. ‘‘If he’s I have been listening to the conversa- don’t think that was the intention. in Saudi Arabia, pick up with the Saudis,’’ tion, to the debate, to the discussion Critics contend that the justifica- the former official said. ‘‘If traveling over- on the Senate floor throughout the seas to al-Shabaab . . . we can pick him up tions for the drone war have become by ship. If in Yemen, kill or have the Yem- afternoon, and I would ask the Senator more tenuous as the campaign has ex- enis pick him up.’’ from Kentucky these questions: Is it tended further and further beyond the There has been some discussion as to not true that the Constitution of the core group of al-Qaida operatives be- what to do with these people. It is a United States is a document designed hind the strikes on New York and complicated situation, but I think the to protect the freedoms and liberties of Washington. Critics note that the ad- take-home message from all of this is Americans? ministration still doesn’t confirm the that what we are stuck in is a very I would ask the Senator from Ken- CIA’s involvement or the identities of messy sort of decisionmaking, a type of tucky, while sometimes perceived to be those who were killed. Certain strikes decisionmaking that I do not think is a grant of authority, is not really the are now under legal challenge, includ- appropriate for the homeland, for the main purpose of the U.S. Constitution ing the killing last year of the son of United States. I think the idea that in to make sure the American people al-Awlaki. the United States this is to be a battle- enjoy certain liberties and freedoms Counterterrorism experts have said, field, and you do not need an attorney, that the Founding Fathers who wrote though, that the reliance on these tar- you do not need a court, or you do not that document believed were important geted killings is self-perpetuating, get due process, is really repugnant to for American citizens? And whether or yielding undeniable short-term results the American people, and should be. not that is true, I will let the Senator that may obscure the long-term costs. I think it is something we have given from Kentucky tell me, but if that is I think that is a good way of putting it up on too easily if we let the President the case, if it is constitutional to in- because when we think about it, obvi- dictate the terms of this. If the Presi- tentionally kill an American citizen in ously, they are killing some bad peo- dent is unwilling to say clearly and un- the United States without due process ple. This is war, and there has been equivocally that he is not going to kill of law, then what is not constitutional some short-term good. The question is, noncombatants in America, I do not under the U.S. Constitution? Does the short-term good outweigh the think we should tolerate that. I think If the conclusion is reached—as the long-term costs not only in dollars but there should be a huge outcry and the administration, at least, is unwilling the long-term costs of whether we are President should come forward and ex- to say that is not the case—if the con- encouraging a next generation of ter- plain his position. clusion is reached that it is within the rorists? This discussion tonight is not so powers of the Constitution for the ex- This is a quote from Bruce Riedel, a much about John Brennan, it is not ecutive to allow for the killing of an former CIA analyst. He says: about his nomination so much as it is American citizen in the United States, The problem with the drones is it’s like about whether we believe that in then what is left in our Constitution your lawn mower. You got to mow the lawn America there are some rights that are that would prohibit other behavior? If all the time. The minute you stop mowing, so special that we are not willing to you can go this far, what liberties re- the grass is going to grow back. give up on these. main for Americans? Maybe there is an infinite number of So as we move forward into this de- Mr. PAUL. Mr. President, I think it terrorists. Maybe the drone strikes bate, it is not about who gets nomi- is a good question because, ultimately,

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00055 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1192 CONGRESSIONAL RECORD — SENATE March 6, 2013 the question is, Who gets to decide? opportunity for the American people to us away from something so funda- Does the President get to decide uni- understand a significant basic con- mental and so important. laterally that he is going to do this? stitutional right may be at stake. And I think Americans do realize that the And how would you challenge it? If you while the Senator from Kentucky has protections of having a jury trial are are dead, you have a tough time chal- led this discussion, I would ask him, incredibly important and that assess- lenging, basically, his authority to do has he now received, as a result of ing guilt is not always easy when you this. bringing this attention to this issue, are accused of a crime. I think Ameri- But, no, I cannot imagine in any way any additional reassurances from the cans know it is really important to try that you can usurp and go beyond the Attorney General or the President of to get it right when someone is accused constitutional requirements in the the United States that the administra- of a crime. So I think the American United States. I see no way he can do tion agrees that there is no constitu- people are with us in wanting to find that, and I cannot imagine that he tional right to end the life of an Amer- these answers. would even assert such a thing. But it ican citizen using a drone flying over The Senator is right. This is not ulti- still boggles the mind that he will not the lands of the United States and at- mately about the nomination; this is explicitly say he will not do this. tacking a U.S. citizen? about a question that is bigger than Mr. MORAN. Well, I would, again, Mr. PAUL. Mr. President, since we any individual. It is about something through the Presiding Officer, ask a began this today, I have had no com- that our country was founded upon; question of the Senator from Ken- munications from the White House or that is, basically, the individual rights. tucky. the Attorney General. The only thing Mr. MORAN. Mr. President, I thank The PRESIDING OFFICER. The Sen- we have gotten indirectly was that the the Senator from Kentucky for re- ator from Kansas. Attorney General was before the Judi- sponding to my questions. Mr. PAUL. Mr. President, we have Mr. MORAN. Again, in the absence of ciary Committee today and that he did had a good and healthy debate today. I the assurance or the statement from seem to backtrack or acknowledge a think we have hit upon a few points. the administration—from the Presi- little bit, under withering cross-exam- We may have even hit a couple points dent of the United States or his Attor- ination. He was not very forthcoming ney General—I ask the Senator from more than once. in saying what we would like to hear: When we think about it and put it in Kentucky, is not this the appropriate that they will not kill noncombatants venue for us to insist upon that an- perspective, so many of the battles we in America. But I think that is still a have up here are battles that I think swer? Is it not appropriate for this to possibility from them. I think his an- be the venue on which we, as a U.S. the American public is sometimes dis- swers were not inconsistent with that. gusted with. They see a lot of things Senate, make clear that it is unconsti- But you would think it would be a we do as petty and partisan. Some- tutional, in our view, for the death of a little bit easier and they would make it times I see disagreements up here that U.S. citizen in the United States by easier on everyone, and you would I think are completely partisan and military action? think they would want to reassure the This is the opportune moment be- completely petty on both sides. public that they have no intention— But I think this issue is different in cause of the pending confirmation of not just they have no intention—but the sense that this is not about this the nomination of the head of the Cen- that they will not kill Americans. particular individual and his nomina- tral Intelligence Agency. So while to- Mr. MORAN. Again, Mr. President, if tion. I have actually voted for the day’s order of business really is an ad- I can ask the Senator from Kentucky a President’s first three nominations to ministrative appointment, is this issue question through the Presiding Officer, his Cabinet. So I have not taken a par- not so important that we need to uti- while there is a significantly important tisan position that the President can- lize this moment, this time in the Sen- issue before the Senate today—and not nominate his political appointees. I ate to make certain that question is that is the confirmation of the Direc- have looked carefully at the nominees. answered in a way that makes clear— tor of the Central Intelligence Agen- I have asked for more information. I not only for today and for the current cy—I would ask the Senator from Ken- have tried to extend debate on some of occupant of the CIA and its adminis- tucky, is not the more important issue, the nominees. But in the end, I voted tration, but for all future Americans, the less pedestrian issue, that we face for three out of three and many of the all future CIAs, all future military on the Senate floor and in the United judges that the President has put for- leaders—that it is clear that in the States of America one that has been ward, not necessarily because I agree United States American citizens can- with us throughout our history, one with their politics. I do not agree with not be killed without due process of that was with us when the Constitution much of the President’s politics. law? was written, and one that has been In fact, one of the few things I did Mr. PAUL. Mr. President, I think it with us every day thereafter; that is, agree with the President on was the is a good point. I think also a point to what is the meaning of the words con- idea of civil liberties, was the idea that be made is that one resolution to this tained in the U.S. Constitution, and you do not tap someone’s phone with- impasse would be to have a resolution what do they mean for everyday citi- out a wire, without a warrant, that you come forward from the Senate saying zens, that they know that their own do not torture Americans, and that you exactly that; that our understanding government is constrained by a docu- did not kill Americans without due is—and this has been something that ment created now more than 200 years process. These are things I thought the Senator CRUZ and I have discussed: ago? Is that not the most important President and I agreed on. So I am not whether we should limit the Presi- question that faces our country and its so sure exactly, you know, where we dent’s power by legislation or by reso- citizens on a daily, ongoing basis? stand with that. I actually kind of lution, basically saying that repealing Mr. PAUL. Yes, I think American think that probably he still does agree an imminent threat is something the citizens get that. But not only that, I with me, or I still agree with him. But President can do, but killing non- come from a State that has two large the question is, why cannot he publicly combatants is not something that is al- military bases. When our soldiers go go ahead and announce he is not going lowed under the Constitution. off—and when I talk to them—they I think the courts would rule that to kill noncombatants? talk of fighting for our Bill of Rights, This is a resolution we have talked way should the courts ever have to rule they talk of fighting for our Constitu- about. This resolution says: ‘‘To ex- on this. But it would be much simpler tion. They do not think they are going press the sense of the Senate against and more healthy for the country if the off to conquer any people. They truly the use of drones to execute American President would simply come out and believe and they honestly appraise that citizens on American soil.’’ say that. they are fighting for our Bill of Rights. Mr. MORAN. Perhaps, Mr. President, So that is why I see this as somewhat Expressing the sense of the Senate against the use of drones to execute American citi- finally, I would ask the Senator from of an insult to our soldiers, to say that zens on American soil. Resolved, that it is Kentucky, while this opportunity to and to insinuate somehow that the Bill the sense of the Senate that the use of discuss this issue on the Senate floor of Rights is not so important; that our drones to execute or target American citi- has occurred today, it certainly is an fear is going to guide us away or take zens on American soil who pose no imminent

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00056 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1193 threat clearly violates the constitutional tors and Reapers work just fine. It is a In this Spencer Ackerman story from due process of rights. The American people question of intelligence analysis, inter- Wired, he talks about and goes on to deserve a clear, concise and unequivocal pub- preting the imagery collected from the say: lic statement from the President of the drones, from the spies and spotters United States that contains detailed legal Fundamentally, though, it is a question of reasoning, including but not limited to the below, to understand who is a terrorist policy, whether it is acceptable for the CIA balance between national security and due and who, say, drops off the terrorist’s to kill someone without fully knowing if he process, limits of executive power, and dis- laundry. Admittedly in a war with a is the bombsmith or the laundry guy. tinction between the treatment of citizens shadowy enemy, it can be difficult to The Journal reports: and noncitizens within and outside the bor- distinguish between the two. So the The CIA’s willingness to strike without ders of the United States. question is, is this the kind of standard such knowledge, sanctioned in full by Presi- The use of lethal force against American we will use in the United States? Will dent Barack Obama, is causing problems for citizens and the use of drones in the applica- we use a standard where people do not the State Department and the military. As tion of the lethal force within the United we have written this week, the high volume States territory. have to be named? We do not know. The President has indicated his drone of drone attacks in Pakistani tribal areas There is another article that I think strikes in America will have different contributes to Pakistani intransigence on another issue of huge importance to the is of interest. This is another article by rules than his drone strikes outside of Spencer Ackerman in Wired. This talks United States, convincing Pakistan to de- America. But we have heard no rules liver the insurgent groups it sponsors to about once again the signature strikes, on what those drone strikes will be. the idea that basically we are killing peace talks aimed at ending the Afghan war. So we have drone strikes inside and The drones do not cause that intransigence. people whose names we did not know. outside. They are going to have dif- Pakistani leaders, after all, cooperate with The title of this was: ‘‘CIA Drones Kill ferent rules. But we already know that the drones and exploit popular anti-Amer- Large Groups Without Knowing Who in a large percentage of the drone ican sentiment to shake down Washington. They Are.’’ strikes overseas we are not naming the The strikes become cards for Pakistan to The expansion of the CIA’s undeclared person. Is that going to be the stand- play, however cynically. drone war into the tribal areas of Pakistan ard? We also know we have targeted I think this is quite true of Pakistan. required a big expansion of who can be people for sympathizing with the They play both sides to the middle. marked for death. Once the standard for tar- They play both sides to get more geted killings was top-level leaders in al- enemy. We talked about that before. In Qaeda or one of its allies. That’s long gone, the 1960s, we had many people who money from us. I think they have been especially as the number of people targeted sympathized with North Vietnam. complicit in the drone attacks, and at once has grown. Many people will remember Jane then they complain about them pub- This is the new standard, according to a Fonda swiveling herself around in a licly. They have two faces, one to their blockbuster piece in the Wall Street Journal: North Vietnamese artillery and think- people, and one privately to us. But the ‘‘Men believed to be militants associated ing, gleefully, that she was just right question is, have we gotten involved with terrorist groups, but whose identities more in Pakistan than getting al-Qaida aren’t always known.’’ [may be targeted.] at home with the North Vietnamese. The CIA is now killing people without know- I am not a great fan of Jane Fonda. leaders, and have we gotten more in- ing who they are, on suspicion of association I am really not too interested in put- volved with a war in Pakistan that in- with terrorist groups. The article does not ting her on a drone kill list either. We volves people who want to be free of define the standards, [but the standards are have had many people who have dis- their central government? said to be] ‘‘suspicion’’ and ‘‘association.’’ sented in our country. We have had Ultimately, we as a country need to While this is overseas, it kind of gets people in our country who have been figure out how to end the war. We have to the point we have been talking against the Afghan war, against the had the war in Afghanistan for 12 years about: What is the standard that will Iraq war. I was opposed to the Iraq war. now. The war basically has authorized be used in America? If we are to have There have been people against the a worldwide war. Not only am I worried drone strikes in America, what is the government on occasion. What are the about the perpetual nature of the war, standard we will use? Is it a standard criteria for who will be killed? Does the I am also worried that there are no ge- that says you have to be suspicious, or fifth amendment apply? Will the list be ographic limitations to the war. But I that you have to be associated? secret or not secret? Can you kill non- am particularly concerned, and what Strikes targeting those people, usu- combatants? today has all been about, I am worried ally groups of such people, are what we And people say, well, the President that they say the United States is the call signature strikes. The bulk of the would never kill noncombatants. The battlefield now. My side, their side, the CIA’s drone strikes are signature problem is, is that is who we are kill- President, everybody thinks that strikes now, which is a remarkable ing overseas. We are alleging that they America is the battlefield. The problem thing. So what we are talking about— may be conspiring someday to be com- is, they all think you do not get due that is one of the reasons why we are batants or they might have been yes- process in a battlefield. Largely they concerned here—is that if the Presi- terday. But are we going to take that are correct. When you are overseas in a dent claims he can do strikes in Amer- same kind of standard and use it in battlefield, it is hard to have due proc- ica, and the bulk of the current strikes America? Are we going to have a stand- ess. We are not going to ask for Mi- overseas are signature strikes, would it ard that if you are on your iPad typing randa rights before we shoot people in not be worrisome that we could kill an email in a cafe that you can be tar- battle. But America is different. people in America without evening geted in a drone strike? These are not So one of the most important things knowing their name? questions that are inconsequential. I hope that will come from today is The bulk of CIA’s drone strikes now are These are questions that should be people will say and people will listen: ‘‘signature’’ strikes. known. These are questions that How do we end the war in Iraq? How do It was written in the Wall Street should be public. These are questions we end the war in Afghanistan? I got a Journal in an article by Adam Entous, that should be discussed in Congress. vote. I tried to end the Iraq war 2 years Siobhan Gorman, and Julian Barnes. In fact, we should not be asking him after it ended, by taking away the au- And the ‘‘bulk’’ really means the bulk. for drone memos, we should be giving thorization of use of force. I still could The Journal reports that the growth in him drone memos. We should not be not get that voted on. clusters of people targeted by the CIA asking him how is he going to run the It is even more important not only to has required the agency to tell its Pak- drone program, we should be telling end the war in Iraq, but ultimately to istani counterparts about mass at- him how he is to run the drone pro- end the war in Afghanistan. Because tacks. We are talking about pretty sig- gram. That is our authority. We have the war in Afghanistan, the use of au- nificant attacks here. They are only abdicated our authority. We do not do thorization of force is used to create a notifying them when they are going to what we are supposed to. We are sup- worldwide war without limitations, to kill more than 20 at a time. posed to be the checks and balances. create a war that some say the battle- Determining who is the target is not But we have let the President make field is here at home. This battlefield a question of intelligence collection. those decisions because we have largely being here at home means you do not The cameras on the CIA fleet of Preda- abdicated our responsibility. get due process at home.

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00057 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1194 CONGRESSIONAL RECORD — SENATE March 6, 2013 There have been Members of the Sen- conspirators there, definitively turning mium we put on protecting human life, in- ate stand up and say, when they ask our back on Guantanamo—turned cluding citizens. you for a lawyer, you tell them to shut around and made a decision that it This was a statement by John Bren- up. Is that the kind of due process we couldn’t do it in New York. Al-Awlaki nan. It is a statement that actually want in our country? Is that what we was a part of this. He was a propa- carries some weight and should be are moving toward? So the questions gandist and part of this. They said thought through. This is the reason we are asking here are important ques- Abdulmutallab actually sought out al- why I say this filibuster is not so much tions. These questions are: Does the Awlaki in Yemen and al-Awlaki had about Brennan as it is about a con- Bill of Rights apply? Can they have ex- blessed his bomb plot and even intro- stitutional principle. ceptions to the Bill of Rights? duced him to a bombmaker. This, ac- The Obama administration has dra- One of the articles from the National cording to the Obama administration, matically escalated targeted killing by Review recently was by Kevin Wil- is what justified treating al-Awlaki as drones as the central feature of coun- liams. We got into this a little bit ear- a man at arms earning him a place on terterrorism response. lier. I thought it was an important ar- the national secret hit list. Mr. President, at this time I have a ticle because it talked about what our Williamson asked this question: unanimous consent request. I wish to read it into the RECORD. With this concern is is about what standard we If sympathizing with our enemies and will use. What will be the standard for propagandizing on their behalf is the equiva- unanimous consent request, I would how we kill Americans in America? He lent to making war on the country, then the emphasize that this would be ending talked a little bit about how his belief Johnson and Nixon administrations should the debate and allowing a vote on is that al-Awlaki was targeted mainly have bombed every elite college campus in Brennan. Part of this unanimous con- as a propagandist. An interesting thing the country during the 1960s. sent request would be the establish- about al-Awlaki is that before he was These are his words, not mine. He ment of a vote on this resolution as targeted, he was actually invited to the goes on: well as setting a vote up on the con- Pentagon. We considered him to be a And as satisfying as putting Jane Fonda on firmation of John Brennan to be CIA Director. moderate Islamist for a while. a kill list might have been, I do not think The resolution states: We invited him to the Pentagon. I that our understanding of the law would en- courage such a thing, even though she did think he actually gave and said prayers Resolved, that it is the sense of the Senate give priceless aid to the communist aggres- that: in the Capitol at one point. sors in Vietnam. Students in Ann Arbor, MI, 1. The use of drones to execute, or to tar- The question is if we made a mistake were actively and openly raising funds for get, American citizens on American soil who the first time about whether he was the Vietcong throughout the war. Would it pose no imminent threat clearly violates the our friend—and I think we did—could have been proper to put them on kill lists? constitutional due process rights of citizens. you make a mistake on the other end? I don’t know. That is the most important clause of The question is, if governments are to Williamson said: that. I think it is important for the decide who are sympathizers and peo- I do not think that it would. There is a dif- American people to know that appar- ple who are politicians, with no checks ference between sympathizing with our en- ently the other side is going to object. or balances, are to decide who is a sym- emies and taking up arms against the coun- Object. It is important to know the pathizer, is there a danger that people try. majority party here in the Senate, the who have political dissent could be in- They aren’t the same thing. We have party of the President, is going to ob- cluded in this? to ask ourselves, what is the standard? ject to this statement being voted on. The way Williamson describes al- Could political dissent be part of the They may still vote against it if they Awlaki was that he was first and fore- standard for drone strikes? wish, but they are going to object, I most an al-Qaida propagandist. He was You say, well, that is ridiculous. We understand, to having a vote on this a preacher and a blogger who first have listed people already on Web sites statement. The use of drones to exe- began to provoke United States au- and said they were at risk for ter- cute a target, American citizens on thorities through the online bile which rorism for their political beliefs. The American soil, who pose no imminent earned him the faintly ridiculous sobri- Fusion Center in Missouri listed people threat, clearly violates the constitu- quet the bin Laden of the Internet. who were of pro-life origin and listed tional due process rights of citizens. Was he an active participant in plan- people who believed in secure borders What we are talking about is a reso- ning acts of terrorism against the for immigration. They listed people lution that says what we have been United States? The FBI did not think who were supporters of third-party trying to get the President to say: You so, at least in the wake of 9/11 attacks. candidates, the Constitution Party or can’t kill noncombatants. You can’t The Bureau interviewed him four times the Libertarian Party. These people kill people in a cafe in Seattle. That is and concluded he was not involved. The were listed in a mailing sent out to all what we are asking. It is blatantly un- Defense Department famously invited the police in the State to be aware of constitutional to kill noncombatants. I him to dine at the Pentagon as part of these people. Be aware of people who can’t understand why we couldn’t get a the Islamic outreach efforts, and in have bumper stickers on their cars sup- resolution, particularly because I am 2002 he was conducting prayers in the porting these people. willing to, with this resolution, move U.S. Capitol. That, to me, sounds dangerously forward and let the vote occur on Bren- Throughout the following years, al- close to having a standard where the nan. Awlaki became a sort of al-Qaida gad- standard is sympathy not for your en- The second part of the resolution is: fly, dangerous principally because he emies but sympathy for unpopular The American people deserve a clear, con- was fluent in English and, therefore, a ideas or ideas that aren’t popular with cise, and unequivocal public statement from more effective propagandist. It was not the government. That concerns me. It the President of the United States that con- tains detailed legal reasoning, including but until the first Obama administration concerns whether we could have in our that al-Awlaki was promoted by United not limited to the balance between national country a standard that is less than security and due process, limits of executive States authorities from propagandist the Constitution. The Constitution is a power and distinction between treatments of to operations man. standard where I can’t imagine we citizens and noncitizens within and outside You may remember the context. The would want to give up on this standard, the borders of the United States, the use of Obama administration had been plan- or any President could assert a stand- lethal force against American citizens, and ning to try 9/11 conspirators in New ard would not be the Constitution. the use of drones in the application of lethal York City when the country was There was an article in Human force within the United States territory. thrown into a panic by the machina- Rights First which was published in Basically, the second part of the res- tions of the would-be underpants bomb- December of 2012. It begins with this olution asked, basically, we do our job er, Umar Farouk Abdulmutallab. prefacing statement: and ask the President to let us know The Obama administration, in an in- We are establishing precedents that other what is going on with the program. If teresting about-face—whereas it had nations may follow, and not all of those na- there is an objection to this, it would been planning to try Khalid Shaikh tions may—and not all of them will be na- be an objection to, No. 1, killing citi- Mohammed in New York and his co- tions that share our interests or the pre- zens who are noncombatants and, No. 2,

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00058 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1195 to giving us a report on what the pro- killed by the drones will have their and others are in the process of acquiring gram will actually entail. own drones, I think within short order. them. As White House counterterrorism chief John Brennan stated: The United Mr. President, I ask unanimous con- The Obama administration has dramati- States is ‘‘establishing precedents that other sent that at a time to be determined by cally escalated targeted killing by drones as nations may follow, and not all of them will a central feature of his counterterrorism re- the two leaders tomorrow, the Senate be nations that share our interests or the sponse. Over the past 2 years the administra- vote on this resolution as I just read it, premium we put on protecting human life, tion has begun to speak more openly about and with the addition to it they then including innocent civilians.’’ the targeted killing program, including in turn to the Brennan nomination or be By declaring that it is an armed conflict public remarks by several senior officials. with al Qaeda’s ‘‘associated forces,’’ (a term allowed to proceed to a vote. While we welcome and appreciate these dis- it has not defined)— The PRESIDING OFFICER (Mr. closures, they nevertheless provided only HEINRICH). Is there objection? limited information. I think this is an important point be- Mr. DURBIN. Mr. President, reserv- Experts in other governments have contin- cause everybody is always saying: ing the right to object. ued to raise serious concerns about: Don’t worry. You are fine. You are not The PRESIDING OFFICER. The Sen- The precedent that the United States tar- a terrorist. We are only going after ter- ator from Illinois. geted killing policy is setting for the rest of rorists. The problem is, as I said, the Mr. DURBIN. I would say to my the world, including countries which have government has defined terrorism in friend from Kentucky that I am chair acquired or are in the process of acquiring this country to mean things that may drones, yet have long failed to adhere to the of the Constitution, Civil Rights and rule of law and protect human rights— not include terrorists—paying cash, Human Rights Subcommittee of the having weatherized ammunition—so We would like to believe we actually Judiciary Committee. We are sched- there are a lot of different things they have rules in place, and we would not uling a hearing on the issue of drones, have used as a definition. But let’s say misuse drones. Imagine what it is because I believe the issue raises im- they are going after al-Qaida, people going to be like when countries get portant questions, legal and constitu- working with them or associated drones that have none of the rules, tional questions. I invite my colleague forces—what that means I don’t know, none of the checks and balances. to join us in that hearing if you wish to particularly since al-Qaida is a little testify. I think this is something we The impact of the drone program on other hard to define because they do not have should look at and look at closely. U.S. counterterrorism efforts, including membership cards. Some of them prob- whether U.S. allies and other security part- That is why this hearing is being ners have reduced intelligence sharing and ably don’t use the label at all. I doubt scheduled. I believe at this moment it other forms of counterterrorism cooperation many of them have any communica- is premature to schedule a vote on this because of the operational and legal con- tion with any kind of central head- issue until we thoroughly look at the cerns expressed by these countries; the im- quarters or central group called al- constitutional aspects of all of the pact of drone operations on other aspects of Qaida. questions the Senator has raised today, U.S. counterterrorism strategy, especially By declaring that it is in an armed conflict which are important. diplomatic and foreign assistance efforts de- with al Qaeda’s ‘‘associated forces,’’ without Because of that, I have no alternative signed to counter extremism, promote sta- articulating limits to that armed conflict, bility, and provide economic aid; the number the United States is inviting other countries but to object. of civilian casualties, including a lack of The PRESIDING OFFICER. Objec- to similarly declare armed conflicts against clarity on who the United States considers a groups they consider to be security threats tion is heard. civilian in these situations. Mr. PAUL. Mr. President, I am dis- for purposes of assuming lethal targeting au- Of note and of consideration also is wheth- thority. Moreover, by announcing that all appointed the Democrats choose not to er the legal framework of the program that ‘‘members’’ of such groups are legally target- vote on this. The answer around here has been publicly asserted so far by the ad- able, the United States is establishing ex- for a lot of things is we will have a ministration comports with international ceedingly broad precedent for those who can hearing at some later date to be deter- legal requirements. be targeted, even if it is not to utilize the mined. The problem is this is a non- The totality of these concerns, heightened full scope of this claimed authority. As an by the lack of public information sur- binding resolution. This is a resolution alternative to armed conflict-based tar- rounding the program, require the adminis- geting, U.S. officials have claimed that tar- just stating we believe in the Constitu- tration to better explain the program and its tion and, A, Mr. President, send us geted killings are justified as self-defense re- legal basis and to carefully review the policy sponding to an imminent threat. . . . some information about your plan, how in light of the global precedent it is setting it is going to work. It doesn’t change and serious questions about the effectiveness The problem is we have defined im- the law. In fact, I wish it could do more of the program on the full range of U.S. minent to be not immediate. So having than that. We have an actual bill which counterterrorism efforts. While it is ex- a murky definition of what imminent will be introduced. We will actually try pected that elements of the U.S. Govern- is allows us to run into problems. ment’s strategy for a targeted killing will be It is also not clear that the current broad to change the law. classified, it is in the national interest that This is a symbolic gesture and a way targeted killing policy serves U.S. long-term the government be more transparent about strategic interests in combating inter- to allow us to move forward. I am dis- policy considerations governing its use as national terrorism. Although it has been re- appointed we can’t. well as its legal justification, and that the ported that some high-level operational lead- This was an article that was pub- program be subject to regular oversight. ers of al-Qaida have been killed in drone at- lished in Human Rights First in De- Furthermore, it is in the U.S. national secu- tacks, studies show the vast majority are cember of 2012. As I said, it has an rity interests to ensure that the rules of en- not high-level terrorist leaders. National se- opening statement by John Brennan I gagement are clear and that the program curity analysts and former U.S. military of- minimizes any unintended negative con- ficials increasingly argue that such tactical think is actually well thought out and sequences. recognizes some of the advantages and gains are outweighed by the substantial cost How the U.S. operates and publicly ex- of the targeted killing program, including disadvantages of drone strikes. plains its targeted killing programs will growing anti-American sentiment and re- John Brennan begins by saying: have far-reaching consequences. The manu- cruiting support for al-Qaida. We are establishing precedents that other facture and sale of unmanned aerial vehicles The broad targeted killing program has al- nations may follow, and not all of those na- is an increasing global industry and drone ready strained U.S. relations with allies and tions may—and not all of them will be na- technology is not prohibitively complicated. thereby impeded the flow of critical intel- tions that share our interests. I will give you an idea where there is ligence about terrorist operations. Think about what he is saying there. a marketplace for drones. Last year, I The problem is, when we talk about Other people are going to get drones. introduced a bill to require a warrant this, one of the most important things We have already lost a drone in Iran. before you could use a domestic drone to our intelligence is actually human How long do you think it is before Iran to spy on citizens. Before I introduced intelligence. We get information from has drones? How long do you think it is it or anybody knew outside my office, people who are our friends, who live in before Hezbollah has drones or Hamas we already had calls in lobbying com- those countries, who blend into the has drones? I think there is a certain ing from drone manufacturers. So this population and are part of their popu- amount of thought that ought to go is a big business. lation. But we have gone on to destroy into a drone-killing program, particu- Some 70 countries already possess UAVs, some of this intelligence in the sense larly when the people who are being or drones, including Russia, Syria and Libya, that one of the people who helped us to

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00059 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1196 CONGRESSIONAL RECORD — SENATE March 6, 2013 get bin Laden was a doctor in Pakistan about it. He doesn’t want to deny he son had the courage to yell STOP. Stand by the name of Dr. Shakil Afridi. If we will use it here. He just says he isn’t with Rand. don’t stand by the people who give us intending to use it here but then says: So proud of Rand Paul. We need more like intelligence and give us information, Oh, probably there will be different him. Stand with Rand. Rand Paul is now in hour 7 of his filibuster. we will not get more. But when he did rules inside the United States than He is standing up for our rights. Thank you. help us, somehow his name was leaked. outside the United States. Stand with Rand. I don’t know where the leak came This is where the Senate ought to get It is frightening that Obama seeks to have from, but his name was leaked and involved, instead of punting this to an- an ever growing amount of power. Drone then he was arrested by the Pakistanis. other time. The Senate ought to say we strikes are frightening. Stand with Rand. He is now in prison for the rest of his are not going to wait for the President Dear GOP. The base is crying out for more life. to send us a memo. We are going to of you to stand with Rand. If you want the I have asked several times, both to send him a memo. We are going to tell base’s votes, get it together. Stand with Rand. We need you now more the previous Secretary of State as well him what the rules on drone strikes than ever. This president has usurped his as to the current Secretary of State, are. We are going to tell him the Con- power. We can’t say anything bad against and I asked the current Secretary of stitution does apply to Americans, par- him. State point-blank and directly: Will ticularly Americans in the United Stand with Rand. So long as Rand speaks, you use the leverage of foreign aid to States, and there are no exceptions. we’ll be tuned in. say we are not going to give you for- I find it inexcusable that the Attor- It is unconstitutional to target and kill eign aid if you don’t release this doctor ney General says: Well, the fifth Americans on American soil with a drone. who gave us information? amendment, we will use it as needed, Stand with Rand. It is a little ironic that we will not basically. We will use it when we A retweet from Senator RAND PAUL. I do it, particularly since at one point in choose. The problem with that is I will commend the Senator from Ken- time we actually had, I think, a $25 don’t think the executive branch tucky. He was so flexible he was able to million reward for any information should get to pick and choose. tweet while he was standing on the that led to helping us get bin Laden. So Without yielding the floor, I am floor. A retweet from Senator RAND it is kind of disappointing that we going to allow a question from my col- PAUL’s tweet: ‘‘I will not sit quietly haven’t held out and supported our league from Texas. and let President Obama shred the human intelligence and people such as Mr. CRUZ. I thank the Senator from Constitution,’’ with the hashtags Dr. Afridi, who helped us get probably Kentucky, and I want to ask the fol- ‘‘filiblizzard’’ and ‘‘Stand with Rand.’’ the most notorious terrorist of the last lowing question: Is the Senator from Here is a more mixed one, but none- century. Kentucky aware of the reaction the theless demonstrating the respect the While the U.S. Government does not report American people are having to his ex- Senator from Kentucky is earning the number of deaths from drone strikes, traordinary efforts today? across the aisle. independent groups have estimated that the Given the Senate rules do not allow I may not always agree with Rand Paul but drone program has claimed several thousand for the use of cellular phones on the he has my respect. He’s very willing to do lives so far. floor, I feel quite confident the Senator what he feels is right. Stand with Rand. Estimates and public comments by from Kentucky is not aware of the From Congressman JUSTIN AMASH: some Senators have said as many as Twitterverse that has been exploding. Why won’t President Obama simply state 4,700. What we don’t know about the So what I want to do for the Senator that it is unconstitutional and illegal for 4,700 but what would be an important from Kentucky is to give some small government to kill Americans in U.S. with- statistic, I think, or maybe a troubling sampling of the reaction on Twitter so out due process? Stand with Rand. statistic, would be how many of the he might understand how the American Stand with Rand, because we deserve to 4,700 were killed in combat—actually people are responding to his coura- know if American citizens should fear mur- der from our Government. geous leadership, to Senator PAUL’s holding weapons, fighting, going to a Everyone should be aware of this impor- battle, coming from a battle—and how doing something that in the last 4 tant moment in American history. Stand many of the drone strikes were actu- years has happened far too little in this with Rand. ally on people who weren’t involved in Chamber, which is standing and fight- Proud to call Rand Paul my Senator. combat. I think if that number were re- ing for liberty. Stand with Rand. leased, if that number were made pub- So I will read a series of tweets. It is unconstitutional to target and kill lic, it would concern you even more be- So proud of Rand Paul standing up for Americans on American soil with a drone. cause you may well find out a lot of what’s right. Stand with Rand. Stand with Rand. The Federal Government does not have the the people—and we have seen some of Rand Paul: a reason to be proud of your elected representatives again. Keep going, power to kill its citizens whenever it wants. the strikes on television, with people Rand. There is something called due process. Stand in their cars, people walking around Proud of Senator Rand Paul and all who with Rand. without weapons, people eating dinner, have joined him in this effort. Stand today Fight for our constitutional rights and lib- people at home in their houses. I am with Senator Rand Paul. erties. Stand with Rand. not saying these are good people nec- So happy with Rand Paul right now. Some- Stand with Rand. I have gained a lot of re- essarily, I am just saying the drone one finally using the system to aid, not spect for Senator Paul today. This is not a usurp, our rights. strike program we have in place cur- right or left issue, it is a civil liberties issue. Rand Paul filibusters Brennan nomina- Thank you Rand Paul and others who are rently seems to have a very low thresh- tion—over four hours now. Glad someone in taking a stand for patriotic Americans. old for whom they kill. So the question the Senate has some spine. A great day for liberty when Senator Rand would be whether you are going to use That was tweeted a while ago. Paul and a handful of others stood up for lib- that kind of standard if you have a do- Rand Paul is a hero today, a man with a erty. Stand with Rand. mestic drone strike program in the backbone. It is ironic that a Nobel Peace Prize winner United States. Today Rand Paul is my hero. won’t guarantee that he won’t use drones I think we are getting to the point, Kentucky Senator Rand Paul is a true con- against Americans. Stand with Rand. and that is one of the most important stitutional hero in his filibuster against CIA I will note to the Senator from Ken- nominee. tucky and ask his reaction to these— questions as we look at the foreign I can honestly say, I am proud to currently drone program, is understanding what live in Rand Paul’s State of Kentucky. this is but a small sampling of the re- the parameters are that allow us to So proud of Rand Paul. He’s bringing it. action in Twitter. Indeed, in my office kill people in foreign countries and are He’s not going to let our constitution get I think the technical term for what the those the parameters that are going to trashed. A breath of fresh air. PRAY 4 THIS Twitterverse is doing right now is be used here. FIGHT 4 RAND. ‘‘blowing up.’’ For the most part, over the last dec- I am so beyond proud of Rand Paul and the I suggest to the Senator from Ken- ade, they haven’t admitted we even way he is standing up for each and every tucky and then ask his reaction—I sug- American citizen right now by filibustering have a drone strike program. But now the Senate. gest that this is a reflection of the fact that they admit it, the President I am VERY proud of Senator Rand Paul. that the American people are frus- doesn’t want to answer any questions This is an important moment when one per- trated. They are frustrated that they

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00060 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1197 feel too few elected officials in Wash- don’t know if he is still up or not—but I just cannot imagine he can’t answer ington stand for our rights, are willing ask the President the question. Ask these questions. It is not enough to to rock the boat, are willing to stand him, do you plan on killing Americans say: I don’t intend to do so. up and say the Constitution matters. who are not in combat? Do you plan on Last year when we passed the na- And it matters whether it is popular or killing Americans who are not in a tional defense authorization bill, there not, it matters whether my party is in combat position, people whom you was included in that the ability to in- power or another party is in power. The might be accusing of some kind of definitely detain an individual, an Constitution matters. Our rights mat- crime but who are actually not en- American citizen. In fact, I asked an- ter. And I think so many Americans gaged in combat? I would think it other Senator on my side—I said: Does are frustrated that they view elected would be a simple answer. In fact, I am that mean you can send an American officials as looking desperate to stay in willing to go home if we can get an an- to Guantanamo Bay? power, desperate to be reelected to do swer from the President that says: Peo- He said: Yes, if they are dangerous. everything except fight for the Con- ple not engaged in combat won’t be on That would be fine if we all agreed stitution and fight for our liberties, any target list. It is a pretty simple who is dangerous and who committed a and I think this outpouring the Sen- question to ask and a pretty reasonable crime, but that would be an accusa- ator from Kentucky is seeing is a re- question to ask. tion, and that would have to be adju- flection of that great frustration. After much jockeying and debate dicated somehow, and if you don’t get I join with the sentiments of these with the Senator from Texas asking a trial, how do we determine your inno- and many others on Twitter. I ask the the Attorney General this question, we cence or guilt or whether you are going Senator from Kentucky if he was aware finally did get to where it seems as to be sent to Guantanamo Bay? The President, like so many times, of this reaction and what his thoughts though he was coming toward not try- said: I don’t support indefinite deten- are to the many thousands more—I ing to but being forced to say it is not haven’t been able to read their tion. I would veto that. constitutional to kill noncombatants. No, no, I won’t veto that this time, tweets—and their words of encourage- It should be an easy question. So we but I would veto that if I were still ment as the Senator from Kentucky will take a telegram. We will even take Candidate Barack Obama. But I am more than anyone is standing with a tweet. If the Attorney General would President Barack Obama, I am not Rand. tweet us, we can have that relayed to going to veto that. Mr. PAUL. Mr. President, I thank the the floor and let him know—let us Senator from Texas for coming to the So instead he says: I have no inten- know that basically they acknowledge tion of detaining anyone. floor and cheering me up. I was getting that their power is not unlimited. kind of tired. I appreciate him bringing Here is the problem. It is not good I don’t think this is really an over- enough. The law is for everybody. It is news from the outside world. statement of the cause. This has been As you know, we are not allowed to not for saying: Oh, I am a good Presi- written up. Glenn Greenwald has writ- dent. I am very—I went to Harvard. I have electronics on the floor, so I don’t ten this up. Conor Friedersdorf has really have much knowledge of the am not going to detain anybody. written this up, talking about if you That is not enough. The law is what electronic outside world. But actually have a war that has no end, if you have it is probably a good thing for every the law is. If the law allows you to be a war that has no geographic limit, and detained as an American citizen, what American eventually not to see their then if you have strikes that have no phone or their computer for about 8 about the next guy who is not so high- constitutional bounds, basically what minded, the next guy who decides he is hours. you have is an unlimited imperial The thing is, people think that we going to detain political opponents and Presidency. should not—people are always saying ethnic groups or people he dislikes? This is not a partisan issue. A lot of don’t fight, get along, and stuff. I think What happens when that happens? It is this began under George Bush. It has people do want that. I think at the not enough to say: I don’t intend to do been continued, expanded, doubled, and same time they want you to stand up something. quintupled and made 10 times worse by and stand for something and believe in I would think the leader of the free the current President. But even under something. It doesn’t have to mean world, the leader of I think one of the George Bush, nobody ever maintained that we do it in an acrimonious way. most important nations if not the most they could kill Americans at home. I Even the Senator from Illinois and I important nation or civilization we can’t imagine that the President, when usually have civilized words together. have had in historic times—I have high he comes forward and says he has not There is a smile. hopes and high estimation of who we The thing about it is that there are killed Americans and he does not in- are as a people. It is not enough for principles we ought to stand for. I tend to do it but he might—that some- him to say: I don’t intend to break the think the most important principle how we are supposed to be placated by Constitution. You either believe in the here, though, is that really this is a that. Somehow that is supposed to be Constitution or you do not. tug-of-war between the executive enough. I think illustrative of sort of this branch and the legislative branch. This is not the first time we have opinion was when I interviewed or There may be some partisanship, that seen this—not the first time we have asked questions to Senator Kerry when we can’t all get together in the Senate seen a reversal of fortunes here, rever- he was being nominated. I asked him to say to the President that we think sal of what I think he stood for as a these questions about, can you go to his power should be restrained, but I candidate. I have said many times, war without a declaration of war. think at the same time there are some probably 10 times today that I admired His answer was, oh, of course I will on the other side who are saying that. the President. I admired the President support the Constitution, except for Really, that is what this should be when he was a Senator on many issues. when I won’t support the Constitution, about. I admired the President when he ran when it is inconvenient. It is some- It is about how much power a Presi- for office. But the President who ran times hard to go to war, it is messy, dent can have. Can a President have for office and said we are not going to there is all this voting stuff, and people the power to decide to kill Americans tap phones without a warrant, the don’t want to vote to go to war, they on American soil? But not only that, President who ran for office and said don’t want to raise taxes. It is just can the President have the power to de- we are not going to torture people now hard to get the votes for war. So when cide when the Bill of Rights applies? says we are going to kill people with no it is inconvenient, I will not. Can you be targeted because you have due process? I find that incredibly hyp- That is the problem. been alleged to have committed some ocritical and incredibly ironic. I see no He asked me or sort of insinuated crime and your Bill of Rights is reason why he can’t come forward and that I was an absolutist. I don’t know stripped away even if you are here in say: We don’t get to pick and choose how to halfway believe that Congress the United States? I think it is a pret- when the fifth amendment applies. We should declare war. I don’t know how ty easy question. don’t get to pick and choose when peo- to halfway believe in the fifth amend- Maybe someone from the media ple can be accused of crime and get no ment. This is not one we are even de- would ask the President tonight—I adjudication and be killed by a drone. bating exactly what it means, what the

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00061 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1198 CONGRESSIONAL RECORD — SENATE March 6, 2013 establishment clause of the first I would certainly want a trial. I just swer after the threat of his nomination amendment means. There is really not wouldn’t think it would be enough to not coming out of committee. This is a lot of debate over what due process be accused. not the way it should work. The Presi- is. When you are accused of a crime, People say: Oh, well, they are just dent is bragging about how transparent when you are accused of something, members of al-Qaida, but they don’t the guy is, that he believes in trans- you are indicted. When you are ac- have a membership card. I don’t know parency, that he is such a high-minded cused, you get a trial, you get due that we have looked at anybody’s be- fellow, but he won’t give any answer process. Nobody is really debating cause they are dead; they were blown unless someone forces him to. The what that means. Yet the Attorney up with a missile, so no one is looking same thing with the President. General for this President has said that at their al-Qaida membership card. The So we finally get an answer and John the fifth amendment will be applied thing is in the United States they Brennan says: Well, the CIA cannot when they can. might say someone is associated with kill people in the United States, it is To be fair, I think he is referring to al-Qaida or associated with terrorism. against the law. Yes, we knew that. foreign strikes. He is talking about for- We have had experience with govern- Thanks. Thanks for admitting you are eign strikes. To tell you the truth, it is ment offices and officials talking about going to obey the law. We feel blessed kind of muddled, whether the Constitu- people who might be terrorists. that you said you will now obey the tion applies to people in foreign lands The Fusion Centers in Missouri said law. But it is sad that it took a month or in foreign zones. But that is the people who are pro-life might be terror- and a half—and under severe duress— whole point of this. The point is that ists. They said people who are for se- that they have admitted they will obey this is America. We are not talking cure borders might be terrorists. They the law and the CIA will not kill you in about a battlefield. We are not talking said the people who vote for the Con- America. about people using legal force. If you stitution Party or the Libertarian The problem is it is kind of a tricky are in America, if you are outside the Party might be terrorists. So if they answer because they are not the ones Capitol and you have a grenade launch- believe in signature strikes, I guess if running the drone program. The De- er, you will be killed without due proc- we see the traffic going to the Liber- fense Department runs the program. ess. You don’t get due process. You tarian Party Convention, that could You can be sure the CIA is not going to don’t get an attorney. You don’t get probably hit a caravan and hit a whole kill you, but the Defense Department Miranda rights. Nobody thinks that bunch of them at once. might. Still the answer is: We haven’t you do. But if you are sitting in a cafe, People say that is absurd. The Presi- killed anybody yet. We don’t intend to, and somebody thinks you e-mailed dent is not advocating that. He is advo- but we might. So that is what we are cating a drone strike in America, and your cousin in the Middle East, and going to have to be satisfied with. they think you are conspiring with all we have to compare it with is the So we got the answer from the Attor- them, you should be charged. You drone strike overseas. He doesn’t want ney General, and his was a little more should be imprisoned if they can make to talk about it, but when forced to, he detailed and actually had some good the charges stick. But they should not says the rules will probably be slightly things in it. Basically, he concluded by just drop a Hellfire missile on your cafe different inside the United States than saying they could conceive of a place experience. they will be outside the United States. where someone could get attacked or I guess he does believe he has a right to We have to realize and the President where the United States might attack have a drone strike program in the above all people—someone who taught Americans, but the examples they United States. He will just have slight- constitutional law should realize that came up with were not what we were his opinion is not so important. Even ly different rules. I have an important question for asking about. So it is sort of akin to as the President, it is not so impor- him. He needs to give me a call. Is one answering a question but answering tant. For him to say that he doesn’t in- of the rules of inside the U.S. drone the question that wasn’t asked. tend to kill people—I would defy a con- They said: Well, if planes are flying strike program to obey the Constitu- stitutional lawyer in our country to at the Twin Towers and if Pearl Harbor tion that a person will get a trial by a say that is important. The law is what is happening again, obviously, we could jury of their peers? Is that going to be it is, and he is going to give us a legal in the rules for inside America as op- see a use for drone strikes. Well, me interpretation of the law and not what posed to outside America? too. I mean, if we are being attacked his intent is. To say he hasn’t killed It is disturbing that it has been so and there is a war or even if there is a anybody yet, to say he has no intention hard to get any information on this. I person with a grenade launcher, we of killing anybody but he might, is just wouldn’t have gotten any information have the ability to respond to that. No not a legal standard I chose to live by. at all—I don’t think—had we not got- one is questioning that. The reason It concerns me. ten some support from the other side. this question comes up is that a signifi- It concerns me that we have docu- The Senator from Oregon stood in cant portion of the drone strikes over- ments in the United States that are the committee. In fact, he asked the seas are occurring on people who are produced by the government that indi- question before I did. I was fascinated not involved in combat. cate people who might be a terrorist. he asked the question. Senator WYDEN Now there are allegations that there The Bureau of Justice came out with stood in the Intelligence Committee are bad people and they may have been one last year, and it said people who and asked: Can you do a drone strike in combat but are not currently in are missing fingers, people who have on Americans on American soil? John combat. The question is: Are we going colored stains on their clothes, people Brennan’s response—I kid you not—we to use the foreign drone strike model who have more than 7 days of food need to optimize transparency and we in the United States? Are we going to might be terrorists. Ironically, another need to optimize secrecy. That was his kill noncombatants in the United government Web site says that if you answer. Here is the followup question: States? Are we going to kill people live on the coast, you should have 7 What does that mean? Does that mean whom we suspect? That sort of gets us days of food because there might be a you can kill Americans on American to the other question when we talk hurricane, you might need to have the soil? What are you trying to say or about what rules and procedures we ex- food. But another Web site says that if what are you trying not to say? To pect in our country. Do we expect that you do, you might be crazy and a luna- Brennan’s credit, he finally answered the police would come and arrest you tic and a survivalist, and you might be the question only when there was a and put you in jail for the rest of your someone we might need to target with threat of him not getting out of com- life because they suspect something? Is a drone. If you see somebody hiding mittee—thanks to the bipartisan sup- suspicion enough? Obviously not. We this, you are supposed to report them. port of Republicans and Democrats believe that is the beginning of it. Usu- If you hear of people who have guns in threatening to hold him up. He finally ally, it involves probable cause and in- their house or lots of weatherized am- got out, but on the day we threatened volves a judge to get information. munition or ready-to-eat meals, they to hold him up, he finally responded. I have a message here—not from the could be on the target list. Of that is I sent him questions a month and a White House. It is a message saying the whom we are targeting to be terrorists, half previously, and I finally got an an- White House hasn’t returned our phone

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00062 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1199 calls. If anybody knows anybody at the budget requests to Congress that cite ‘‘inte- imagery from military satellites to help do- White House and wants to come, we are rior law enforcement support’’ as part of mestic investigations. Congress blocked the looking for an answer from the White their mission. proposal on grounds it would violate the In an interview, Michael C. Kostelnik, a re- House. We have called Justice also. I Posse Comitatus Act. tired Air Force general who heads the office The Posse Comitatus Act is pretty think the answer says something about that supervises drones, said Predators are the sequester. Maybe they are going to flown ‘‘in many areas around the country, important and it has been part of our call me when the sequester is over. not only for federal operators, but also for discussion today and we are not the I think one of the courtesies they state and local law enforcement. . . .’’ first person to raise this. The military ought to think about is—particularly if But former Rep. Jane Harman (D–Venice), is not authorized to operate in the what they are hearing is something who sat on the House homeland security in- United States. Some may say: Why telligence subcommittee at the time and that they don’t object to—why not end not? The reason is they operate under served as its chairwoman from 2007 until this different rules of engagement than our the debate by going ahead and letting year, said no one discussed using Predators us know? Why not go ahead and let us to help local police serve warrants or do police do. In Afghanistan, Iraq or in know they agree they are not going to other basic work. any kind of war theater, they have be killing noncombatants. I would Using Predators for routine law enforce- warrants, they don’t have Miranda think that would be a pretty easy an- ment without public debate or clear legal au- rights, and they don’t get due process swer for them. In negotiating with any thority is a mistake, Harman said. in war. At home we do. That is why it ‘‘There is no question that this could be- is important we get folks to acknowl- kind of executive branch—this one or come something that people will regret,’’ others—that when we get a nonanswer said Harman, who resigned from the House edge this is not a battlefield. America or a nonresponsive answer or get a re- in February and now heads the Woodrow Wil- is not a battlefield. It is a place where fusal to answer, I think that is when son International Center for Scholars, a we have constitutional rights and have we need to be concerned that the an- Washington think tank. for hundreds of years. swer is not the answer they want to be The point is it isn’t so much about The Posse Comitatus Act—after the public. It is an answer that perhaps the technology. I am not opposed to drones Civil War—regulated and prohibited fifth amendment will be optional de- being used even domestically. It is the military from acting as a police or pending on who is judging the cir- about the individual freedom, it is taking a police role on U.S. soil. Pro- cumstances. about the process, and it is about how ponents say the high resolution cam- As we look forward and look at some they are used. For example, just like in eras, heat sensors, and sophisticated of the information that has been gath- national defense, if someone is robbing radar on the Border Protection ered over time on this, one of the inter- a liquor store and it is safer to get the drones—and this is the other point— esting articles we have collected on robber down with a drone, that is fine. were legislated to be used on the bor- this was an article in the Los Angeles If someone is armed and robbing and der. Times entitled ‘‘Police employ Pred- threatening people in the liquor store One could argue that there is a Fed- ator drone spy planes on the home and people as they come out, I don’t eral role for monitoring borders for na- front.’’ This is an article by Brian Ben- mind if that person was shot with a tional defense and other reasons, but nett. drone or a rifle from a policeman. It is now they are loaning them out to local Reporting from Washington—Armed with a what it is. As one of my friends who is law enforcement and law enforcement search warrant, Nelson County Sheriff Kelly a physician would say when people is also buying drones directly. So they Janke went looking for six missing cows on would come in wounded from robbing have high-resolution cameras, heat the Brossart family farm in the early someone: Well, I guess that is an occu- sensors, and sophisticated radar on the evening of June 23. Three men brandishing pational hazard if you break into Border Protection drones that can help rifles chased him off, he said. homes. The thing is it isn’t the force track criminal activity in the United Janke knew the gunman could be any- States just as the CIA uses predators where on the 3,000-acre spread in eastern we are talking about, it is whether the North Dakota. Fearful of an armed standoff, process is right. So they can use lethal and other drones to spy on militants in he called in reinforcements from the state force when lethal force is threatened. Pakistan, nuclear sites in Iran, and Highway Patrol, a regional SWAT team, a The question about drones is whether other targets around the globe. bomb squad, ambulances and deputy sheriffs they are being used with warrants, if For decades, U.S. ports have allowed from three other counties. they are spying on someone or doing law enforcement to conduct aerial sur- He also called in a Predator B drone. veillance without a warrant. This is As the unmanned aircraft circled 2 miles surveillance on someone. One of the bills we introduced last part of that sort of open spaces doc- overhead the next morning, sophisticated trine. I am not saying it makes it right sensors under the nose helped pinpoint the year was a bill to require warrants for three suspects and showed they were un- drone surveillance. This is a hot topic, but that the government has been armed. Police rushed in and made the first and I think it will probably get up to doing it for decades. Some of the courts known arrests of U.S. citizens with help from the Supreme Court. I don’t believe it apparently have ruled that what a per- a Predator, the spy drone that has helped has yet. There were cases that were son does in the open—even behind a revolutionize modern warfare. talking about GPS tagging of cars, and backyard fence—can be seen by a pass- But that was just the start. Local police the Supreme Court ruled they cannot ing airplane and is not protected by say they have used two unarmed Predators privacy laws. I don’t think I agree with based at Grand Forks Air Force Base to fly do that without a warrant. at least two dozen surveillance flights since My suspicion is they will rule in that. If a person is swimming in their June. The FBI and Drug Enforcement Ad- favor of warrants on drones too. Al- pool in their backyard or in the hot ministration have used Predators for other though there is some dispute over what tub, just because we have the tech- domestic investigations, officials said. they call open spaces. I think that with nology to be able to see them in their ‘‘We don’t use [drones] on every call out,’’ open spaces we need to be concerned hot tub, does that mean they have a said Bill Macki, head of the police SWAT that just because you are not inside right to look at what people are doing team in Grand Forks. ‘‘If we have something your house does not mean you don’t in their backyard? I don’t accept that. in town like an apartment complex, we don’t I think it has been abused and we call them.’’ still deserve some privacy on your own The drones belong to U.S. Customs and land. So it is not so much that the should be fighting against this surveil- Border Protection, which operates eight drone is necessarily our enemy, but it lance state. Predators on the country’s northern and just allows the government to do so Advocates say Predators are simply southwestern borders to search for illegal much more. We need to be very careful more effective than other planes. Fly- immigrants and smugglers. The previously about the safeguards of the Constitu- ing out of earshot and out of sight, a unreported use of its drones to assist local, tion and requiring whether these safe- Predator B can watch a target for 20 state, and federal law enforcement has oc- guards are met as far as protecting our hours nonstop, far longer than any po- curred without any public acknowledgement lice helicopter or manned aircraft. or debate. liberty. Congress first authorized Customs and Bor- This is from the same article from What I would say there is it seems as der Protection to buy unarmed Predators in the Los Angeles Times: though that might be somewhat analo- 2005. Officials in charge of the fleet cite In 2008 and 2010, Harman helped beat back gous to the GPS case. The Supreme broad authority to work with police from efforts by Homeland Security officials to use Court ruled that you can’t tag people’s

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00063 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1200 CONGRESSIONAL RECORD — SENATE March 6, 2013 cars and watch them constantly, wait- President and Presidents have all this There are 64 drone bases on American soil. ing to see if they break any laws. So I power and he doesn’t want to give up That includes 12 locations housing Predator would think the same for a Predator, any of that power. I think some of that and Reaper unmanned aerial vehicles, which can be armed. that you stake them out, watch, and we see with Republicans and Demo- Public Intelligence, a non-profit that advo- you will eventually get somebody crats, frankly. When people leave the cates for free access to information, released breaking the speed limit or running a legislative branch and go to the White a map— stop sign. I don’t think that is what House, they think, I am a good person. which is probably not a very good was intended. I would never use power wrongly, so idea to release a map of where our Howard Safir says, ‘‘I am for the use why would it be wrong if I got more drone bases are in the United States. of drones.’’ He is the former head of op- power? Why would it be wrong if I said, The possibility of military drones as well erations of the U.S. Marshals Service I am going to use the fifth amendment, as those controlled by police departments and former New York City police com- people will get due process, except for and universities flying over American skies missioner. He said, ‘‘Drones could help sometimes when I think they are bad have raised concerns among privacy activ- police in manhunts, hostage situations people, and then I won’t use the fifth ists. and other difficult cases.’’ amendment, they won’t get due proc- The other thing that should concern I agree completely. If someone is ess. everybody, and probably people saw being held in harm’s way, if someone is Privacy advocates say that drones this as they had some university stu- being held and threatened, drones are a help police snoop on citizens in ways dents seeing if they could commandeer great idea. So it is not that I am op- that push current law to the breaking a drone. So they had a drone fly over posed to the technology. I am not par- point. Ryan Calo, director for privacy and the guy who didn’t know the fre- ticularly excited about them hovering and robotics at Stanford Law School’s quency all of a sudden within 2 minutes outside our windows looking over our Center for Internet and Society, says: is commandeering the drone. There are shoulders at what magazines we read, Any time you have a tool like that in the questions whether that is what hap- whether we are reading any free mar- hands of law enforcement that makes it easi- pened in Iran or whether the thing ket magazines that might be offensive er to do surveillance, they will do more of it. landed accidentally. I don’t know the to government officials. So I think we This could be a time when people are uncom- answer to that, but I think it is of con- don’t want people looking into our ac- fortable and they want to place limits on cern that the drones could be com- tivities in our houses without a war- that technology. It could make us question mandeered and used by the people. It is rant. But I think in situations where the doctrines that you do not have privacy also a concern that ultimately our en- in public. people have already broken the law, emies are going to have these drones there is lethal force being exposed and I think that is a good point. Maybe too, and so while war is a messy thing there are people in danger, why we will question some of the things we and there are a lot of imperfections to wouldn’t we want to use a drone versus have said before about open spaces now war, I think the way we act in war a policeman to save the life of a police- that we can crisscross every inch of our should be the way we ultimately want man going into a difficult situation. So open spaces. We have to imagine that to be treated in war. It is easier said I think those probably will come to we now have drones that weigh less than done and I don’t think it is an fruition. That doesn’t bother me. than an ounce, so we are not even talk- easy doctrine, but it is something I In some ways it is a little bit analo- ing about the pictures of you coming think we should aspire to. gous to the situation we are talking down—some of us after a while don’t The possibility of military drones as well about with drone strikes by the mili- want pictures of us in our bathing suit, as those controlled by police departments tary in the United States. It is not so whether it is 2 miles up or whether it is and universities flying over American skies from 5 feet in front of us. So I can’t has raised concerns among privacy activists. much that anybody is opposed to using The American Civil Liberties Union ex- a drone to shoot down a plane that is imagine we would eventually rule that a drone could swoop down and be 10 plained in its December report that the ma- flying in to attack us, or people who chines potentially could be used to spy on are flying into a building to knock a feet over our fence. What is the ques- American citizens. The drones’ presence in building down, or flying into the Cap- tion going to be? Can they be 10 feet our skies threaten to eradicate existing prac- itol. Nobody is opposed to using a over our fence or 2,000 feet in the air tical limits on aerial monitoring and allow- drone when there is a lethal imminent and still snoop without any kind of ing for pervasive surveillance, police fishing problem at all? expeditions, and abusive use of these tools in force. The problem is it has gotten so a way that would eventually eliminate the convoluted. The President said an im- Do we want to live in a police state is basically what the question is. Do we privacy Americans have traditionally en- minent threat doesn’t have to be im- joyed in their movements and activities. mediate. So that is the kind of thing want to live in a surveillance state? It is going to take people to stand up and I have told people that when I first we are concerned about. We are not read ‘‘1984,’’ I was bothered by it. Ev- concerned about an imminent or lethal say enough is enough, that we are not going to do this, instead of everybody erybody is bothered by Big Brother threat where someone responds. What being able to have these two-way tele- we are concerned about is a drone being like a herd of lemmings and going off the cliff saying, ‘‘Lead me, visions in your house and they see ev- strike against a noncombatant. It erything you do. You can’t escape Big seems as though it ought to be an easy lead me, take care of me.’’ We have to ask the question that Brother. But part of the consolation I question for the President. Couldn’t he Franklin asked: Are you going to trade had and part of the feeling was, Well, at least respond and say, I have always your liberty for security? Are you so they can’t do this. The technology believed this, I just forgot to mention fearful, are you so afraid that you are doesn’t exist. When I was a kid it it, and we weren’t very clear in the willing to trade your liberty for secu- didn’t exist. way we expressed it but, obviously, we It is amazing, though, to think that rity? That is sort of the underlying would never use a drone against a non- Orwell writes this in 1949, before any of question to this entire debate. combatant. He needs to say that, The Los Angeles Times article con- this technology. We were getting closer though, because the drones overseas tinues: in the 1970s when I was a kid and now are being used against noncombatants we are there, though. The technology This can be a time when people are uncom- and we need to know what the rules are fortable and they want to place limits on is there. So while technology is not an going to be. that technology. It could make us question enemy and technology is not some- This is a long, drawn-out day, but it the doctrine that you do not have privacy in thing we can or should ban, technology is to try to get some answers. It is to public. makes our privacy more important, it try to shame the President into doing This is from a June 13 article, 2012, in makes the defense of our privacy some- the right thing. I think he knows what ‘‘Wired’’ magazine by Lorenzo thing that needs to be guarded more the right thing is. I think the Presi- Franceschi-Bicchierai: jealously, because our government now dent, part of him would like to do the We like to think of the drone war as some- does have the technology to see our right thing. But I think there is a cer- thing far away, fought in the deserts of every movement, to monitor our every tain stubbornness there too. I think Yemen or the mountains of Afghanistan. But move. So do our enemies, for that mat- there is a certain belief that he is the we now know it is closer than we thought. ter. So one can imagine, we don’t want

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00064 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1201 the police GPS tracking us and we I learned this firsthand because I ac- not have the certainty of your prop- probably don’t want our political oppo- tually had some Fruit of the Loom. erty. A lot of capital formation in our nents tracking our car, either. So there When Fruit of the Loom went bank- country is based on your home loans. It have to be some protections of privacy. rupt, I thought, well, I will get some- used to be before the housing market The issue and discussion of privacy thing, right? They will be bought out, went south, but it still is. It is where a has been one that conservatives and and I will get some money when they lot of capital comes from, particularly people on the right haven’t always are bought out. I did not get anything. for average, ordinary citizens bor- been as unified about. Libertarians on I was an unsecured creditor. Appar- rowing against their house. the right have been better with these ently, in the Chrysler thing, so were If you do not have that certainty of issues and some conservatives have as the labor unions. the law, it is a problem. So what we are well. But the question has always been, Usually what happens is that as a talking about today is more certainty Do you have a right to privacy? I have company, unfortunately, goes bank- of your liberty from unfair prosecution always said, Sure, you have a right to rupt, all those contracts would be re- or unfair arrest or unfair death, ulti- privacy. I can’t imagine why you negotiated, and really then the car mately, from a drone, which takes con- wouldn’t have a right to privacy. companies could become competitive. sistency of law, which takes that the Some on the conservative side say, They could become like Toyota or Constitution will be adhered to and Well, you don’t have a right to privacy; other successful companies that are will be adhered to consistently and not nobody talked about it in the Constitu- nonunionized. And they might become in an arbitrary fashion. So it is impor- tion. You don’t necessarily have a successful again. tant not only for your civil liberties, it right to privacy. I have to disagree be- But instead we took the actual bank- is also important for your private prop- cause I think what is talked about in ruptcy law and turned it on its head. erty as well to have a rule of law. the Constitution are the freedoms we When we do this and when we bail out People talk about a rule of law, and gave up or agreed to have limited. The banks and things and change the rules they talk about it all the time. I do not freedoms that you didn’t agree to have at midpoint, it changes what investors think it fully gets through to every- limited are unnamed. They are do, and it changes that certainty inves- body exactly what a rule of law means unenumerated. And the 9th and 10 tors need either in banks or in car com- and how important it is. Hayek wrote amendments say they are to be left to panies. that nothing more clearly distin- the States and people. The 9th and 10th Pension plans invest in a lot of these guishes an arbitrary society from a amendments say that there is a pleth- things. So a lot of people think, oh, stable society than the rule of law. He ora of rights, there is an unlimited well, the President had preference for said that the rule of law is what gives amount of rights and they are yours. the union because he liked the union. that certainty to the marketplace. So They stay with you, unless the govern- Well, that is fine. But teachers are in a it is not enough just to have freedom. ment explicitly takes these rights union too, and they had a pension plan, You can have complete and random an- away from you. and they owned Chrysler stock, and archic freedom, and you may well not So the conclusion I come to with the they got ripped off because he changed get prosperity if you do not have a law right to privacy is I think you do have the law and gave the money to the that stabilizes things. You have to a right to privacy. I think we have a autoworkers’ union. But he took it have a police force and a judiciary that right to private property. Private prop- from somebody else. enforces contracts. erty isn’t listed in the Constitution, ei- The problem is that you need those So that is a lot of what goes on in the ther, but I think all of our Founding pension funds, some of which are for developing world that they do not Fathers believed in private property regular working folks. Firemen have have. They have kleptocracy, which we and some of them talked about actu- them. Police have them. Teachers have aid and abet by giving them money and giving it to thieves because the thieves ally putting the words in there. But I them. It is one of the things that were are our friends, not somebody else’s think some of them liked more the not fully explained in the Romney friends. But then they also have this idea—instead of life, liberty, and prop- campaign. He got so much grief for instability by not having a rule of law. erty, they liked life, liberty, and the running these funds, but a lot of the pursuit of happiness, and I think it has people who became successful along The drones’ presence in our skies ‘‘threat- ens to eradicate existing practical limits on a more noble ring to it because it is not with him and who made money were aerial monitoring . . . talking about the property, but pursuit just average, ordinary citizens who are This comes from an article in Wired of happiness does involve the pursuit of teachers, firemen, and policemen. by Lorenzo Franceschi-Bicchieri. gaining things you will own. Their pension plan was there in Bain One of the things about our govern- As Danger Room reported last month, even Capital. I think that was never fully military drones, which are prohibited from ment and about the rule of law, and explained. spying on Americans, may ‘‘accidentally’’ one of the things that frankly I think But my point is, with the rule of law, conduct such surveillance—and keep the a lot of people don’t think about but that certainty is what creates wealth data for months afterwards while they figure that makes us an incredibly prosperous in our country. One of the reasons it is out what to do with it. Nation is the certainty of the law. By hard for Africa to get ahead—Africa The material they collect without a war- that, what I mean is the certainty of has great resources—diamonds and rant, as scholar Steven Aftergood revealed, could then be used to open an investigation. ownership. This gets to sort of the idea minerals. One of the big reasons they The Posse Comitatus Act prohibits the of not only do we want these rights for do not get ahead is there is corruption U.S. military from operating on American the civil protections so we can’t be in- in their government. Some of that cor- soil . . . carcerated or accused of a crime falsely ruption we aid and abet because we So once again, if we go back to ask- without being able to defend ourselves, give foreign aid directly to corrupt ing the President this question: Can we also want the rule of law to be con- governments that steal it. you do military strikes on Americans sistent for everyone and not mutable. Mubarak was one of the richest men on American soil, you know an easy We don’t want it to be arbitrary. We in the world—probably worth between answer is, I will obey the law. The law don’t want the whims of any politician $5 and $10 billion, maybe between $15 says he cannot do it. Yet he indicates or any executive to be able to decide and $20 billion. We gave him $60 billion, that he is going to have different rules what the law is. so I guess we should be thankful he inside America than outside America This isn’t the first time I have had only stole one-third of it. Mobutu in for his drone strikes, which implies some disagreement with the President Central Africa stole billions. There was that he thinks he can do it. on this. When we had some of the bank- no running water, no electricity. He The Posse Comitatus Act expressly ruptcies, when the car companies were and the soldiers around him lived high forbids the military from operating in going bankrupt, I believe it was with off the hog, and they took our money the United States. So if he is going to the Chrysler bankruptcy, that as and stole it as well. kill Americans in America, it will ei- things went through, there were people But the problem is that not only do ther be in defiance of the Posse Com- who were creditors and they owned you have the kleptocracy and the itatus Act or he is going to have to part of the company. stealing of foreign aid, but then you do arm the FBI with drones to kill people.

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00065 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1202 CONGRESSIONAL RECORD — SENATE March 6, 2013 The problem is that I think once he farmers and ranchers might want to owner of an unmanned aircraft company, fly gets into the FBI, the ludicrous nature use drones to, I don’t know, count their as a hobbyist my own unmanned aircraft of what he is asserting will really be cattle or their sheep. I do not know if over property that I own? The guidelines be- paramount. I cannot imagine that he you do that. But there are going to be fore this were that any commercial intent is prohibited, but . . . ’’ can argue at that point that we are not private uses for these drones that will going to obey the Bill of Rights with not be objectionable. The bottom line is that there is going to be a lot of things we are going to the FBI because we already do with the All have big implications for traditional FBI. conceptions of privacy, as unmanned planes enter into with private drones. But op- So many of the answers are pretty can loiter over people’s backyards and snap position to the technology, either for simple here and pretty easy, and I just pictures for far longer than piloted aircraft. military purposes or for private pur- cannot imagine why he is resisting The government is anticipating that drone poses, is not something we are going doing this. makers could generate a windfall of cash as after. What we are talking about is drones move from a military to a civilian This new map comes out almost two whether your privacy will be respected role. Jim Williams of the Federal Aviation and whether your constitutional rights months after the Electronic Frontier Foun- Administration told [a conclave of the drone dation revealed another one, this time of manufacturers conference] that the poten- will be protected. public agencies—including police depart- tial market for government and commercial This is a new article from today by ments and universities—that have a permit drones could generate ‘‘nearly $90 billion in Conor Friedersdorf. It is called ‘‘Kill- issued by the Federal Aviation Agency to use economic activity . . . ’’ ing Americans on U.S. Soil: Eric Hold- [drones] in American airspace. But there’s an obstacle: the Federal Avia- er’s Evasive, Manipulative Letter.’’ ‘‘It goes to show you how entrenched tion Administration. On December 7, 1941, Japanese warplanes drones already are,’’ said Trevor Timm, The FAA has been reluctant to grant bombed the U.S. naval base at Pearl Harbor, an EFF activist, when asked about the licenses out of fear that the drones, Hawaii. Six decades later, al-Qaeda terror- new map. ‘‘It’s clear that the drone in- which maneuver poorly, have an alarm- ists flew hijacked airplanes into the World dustry is expanding rapidly and this ing crash rate, and are spoofible, don’t Trade Center and the Pentagon. Neither map is just another example of that. have the sensing capacity to spot ap- President Roosevelt nor President . . . Bush And if people are worried about mili- targeted and killed Americans on U.S. soil in proaching aircraft, which could com- the aftermath of those attacks. Doing so tary technology coming back and being plicate and endanger U.S. airspace. wouldn’t have made any sense. sold in the US, this is just another ex- The FAA has been criticized some by— How strange, then, that Attorney General ample [of] how drone technology is there is a group called the Electronic Fron- Eric Holder invoked those very attacks in a probably going to proliferate in the US tier Foundation—for not being transparent letter confirming that President Obama be- very soon.’’ about its licenses. And they have filed Free- lieves there are circumstances in which he This is another article from February dom of Information Act because they would could order Americans targeted and killed on of 2013. like to know whether the intentions of those U.S. soil. This is in Wired. It is called ‘‘Domes- putting the drones up is benign or whether it It is kind of strange. The things that tic-Drone Industry Prepares for Big involves some kind of surveillance. he gives as justification are things in Battle with Regulators.’’ We talk a lot about the government which we did not kill Americans. For a day, a sandy-haired Virginian named spying on us, but I think there is great It’s possible, I suppose, to imagine— potential for your competitors, your Jeremy Novara was the hero of the nascent These are Eric Holder’s words now. domestic drone industry. enemies, and other people to spy on Novara went to the microphone at a ball- you with drones, particularly as they It’s possible, I suppose, to imagine an ex- traordinary circumstance in which it would room in a Ritz-Carlton outside Washington, become cheaper. Those issues will be D.C. . . . and did something many in his be necessary and appropriate under the Con- complicated. I think one way to sort of stitution and applicable laws for the Presi- business want to do: tenaciously challenge rectify or give an answer to those is to the drone regulators at the Federal Aviation dent to authorize the military to use lethal Administration to loosen restrictions on un- say your property from where it starts force within the territory of the United manned planes over the United States. Judg- on the ground up is yours. People can States. For example, the President could ing from the reaction he received, and from fly over it, but I do not think they conceivably have no choice but to authorize the stated intentions of the drone advocates should be able to snoop and look down the military to use force if necessary to pro- who convened the forum, the domestic-drone in it—I think probably private or pub- tect the homeland in the circumstances of a catastrophic attack like what happened in industry expects to do a lot more of that in lic looking down on your property. the coming months. 1941 and again on 9/11. This very scenario to That will be something, though, that be guarded against is a President using the There’s been a lot of hype around un- the courts will continue to have to manned drones becoming a fixture over U.S. pretext of a terrorist attack to seize extraor- airspace. . . . work out. dinary powers. Isn’t that among the most There was a push last year by Con- likely scenarios for the United States turn- You may have seen just 2 days ago, I gress and the Obama administration di- ing into an authoritarian security state? think, a pilot coming into New York recting the FAA to fully integrate un- To be sure, if Americans are at the City saw one on the way down. And I manned aircraft into American skies. controls of fighter jets en route to Ha- saw the report, I think yesterday, say- It has not been nearly enough for the waii, of course Obama could order that ing they are still asking whose drone it drone makers. The FAA is months late they be fired upon. If Americans hi- was. You would think certainly we in designating six test sites for drones jacked a plane, of course it would be would have found out in 24 hours. I around the country. The question is permissible to kill them before they would think for certain it probably when the test site selection will begin. could crash it into a building. But would be a government drone. But it is ‘‘I’m sure that’s what all of you are those are not the sorts of targeted a little worrisome that they are seeing asking now,’’ says Williams, the head killings we are talking about. What we drones, that they do not know who is of the FAA’s drone division. are talking about is killing people not flying them or where they are as far as Drone makers are also frustrated by the engaged in combat because you suspect getting in the way of our commercial logic of existing FAA regulations. Currently, them of being a terrorist. airliners. a drone weighing under 55 pounds, flying If you read to the end of Holder’s letter, to There’s been a lot of hype around un- below 400 feet within an operator’s line of the passage where he said— manned drones becoming a fixture over U.S. sight and away from an airport is considered airspace, both for law enforcement use and a model airplane and cleared to fly without This is Friedersdorf again. for operations by businesses as varied as a license. That is, if it is not engaging in any If you read to the end of Holder’s letter, to farmers and filmmakers. for-profit activity—sort of. ‘‘A farmer can be the passage where he says, ‘‘Were such an It sort of leads to another point— a modeller if they operate their aircraft as a emergency to arise, I would examine the par- that it is not the technology that we hobby or for recreational purposes.’’ ticular facts and circumstances before advis- are opposed to. There are going to be Enter Novara, a 31-year-old who owns a ing the president on the scope of his author- small drone business in Falls Church, Va. ity,’’ it becomes clear that, despite invoking all kinds of private uses for drones. called Vanilla Aircraft. ‘‘If a farmer, who Pearl Harbor and 9/11, even he isn’t envi- There have to be some rules for where hopefully is profit-minded, can fly as a sioning a response to an attack in process, they are flown so they do not get in the hobbyist an unmanned aircraft,’’ Novara which would have to happen immediately. So way of airplanes. But I would think challenged Williams, ‘‘why can’t I, as the what does he envision? If he can see that a

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00066 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1203 ‘‘for example’’ is necessary to explain, he The Obama administration calls it ‘‘tar- Well, this is sort of an interesting ought to give us a clarifying example rather geted killing.’’ Steven Segal would call it point. I am not making an opinion on than a nonsensical one that seems to name- getting marked for death. It’s the practice of whether the fifth amendment applies check events for their emotional resonance singling out an individual linked to a ter- more than for their aptness to the issue. rorist group, for killing, and it’s been played to al-Awlaki overseas. I think a lot of Elsewhere in his letter, Holder writes that out hundreds of times in the 9/11 era—includ- that is complicated and not necessarily ‘‘the US government has not carried out ing more recently against U.S. citizens like certain whether you can apply the Con- drone strikes in the United States and has no al-Qaida’s YouTube preacher Anwar al- stitution to people outside the United intention of doing so. As a policy matter Awlaki. The Obama team has said next to States, or whether an entity within the moreover, we reject the use of military force nothing about how it works or what laws re- United States should obey the Con- where well-established law enforcement au- strict it. Until Monday. stitution on people outside the United thorities in the country provide the best Attorney General Eric Holder explained means for incapacitating a terrorist threat.’’ the administration’s reasoning for killing States. Interesting they reject it ‘‘as a policy mat- American citizens overseas—and only over- The bottom line is, in war you are ter,’’ but aren’t willing to reject military seas—with drone strikes and other means not going to get due process. You are force in the United States as a legal mat- during a Monday speech at Northwestern not going to get Miranda rights if you ter— University. Holder claimed that the govern- are fighting in battle. It is a little That is a good distinction— ment can kill ‘‘a U.S. citizen who is a senior more debatable when you are not. The even in instances where law enforcement operational leader of al-Qaida or associated would better incapacitate the threat. For the forces’’ provided the government—unilater- point is, though, that they are saying Obama Administration, conceding that the ally—determines that citizen poses ‘‘an im- they are applying the fifth amendment executive branch is legally forbidden to do minent threat of violent attack’’— sort of in private to al-Awlaki. certain things is verboten,— Once again, a little bit of a problem The question is, if this is the stand- So it is kind of interesting. When on the imminent doctrine is that ‘‘im- ard that is going to be used in the they are willing to admit to any kind minent’’ does not have to mean ‘‘imme- United States, it is not going to be the of limitations on their power they say: diate.’’ actual use of the fifth amendment, ‘‘Policywise’’ they might be limited, —he can’t be captured; and ‘‘law of war prin- which means a court and a jury, it is but they are not willing to say ‘‘le- ciples,’’ like the use of proportional force going to be the pretend use that is done gally’’ they are limited. This is a prob- and the minimization of collateral damage, apply.’’ behind closed doors. I am not so sure lem of not just this administration, but you can have the fifth amendment that The reason why some of this is im- the previous one of thinking that any does not involve a courtroom. I just do portant—even though he is talking kind of inch that they give to another not understand a grand jury indict- about overseas now and not what we branch of government, that they will ment, due process, not to be deprived of are trying to talk about here is that be losing some of their power and they life and liberty. I do not how it happens since we have not been given sort of are unwilling to do it. in private. Friedersdorf goes on to say that: the parameters for how they will kill For the Obama administration, conceding Americans in America, we can only as- But that is the way they are admin- that the executive branch is legally forbid- sume that they will work with the pa- istering the fifth amendment in pri- den to do certain things is verboten, despite rameters they have overseas. The vate. They are using their discretion as the fact that an unchecked executive is whole idea that an imminent threat is to when to administer the fifth amend- much more dangerous than the possibility of ment. I do not know how that is going a future President failing to do enough to not immediate is problematic no mat- fight back against an actual attack on our ter where that doctrine is used. to work. I also do not think that is ap- homeland. The idea that the law-of-war prin- propriate for U.S. citizens. So other Any thinking person can see that Holder’s ciples—I think proportional force is a than the President asking and answer- letter is non-responsive, evasive, and delib- good idea as far as trying to restrain ing a question as to whether non- erately manipulative in its sly reassurances, how much force we use. But there are combatants will be killed in America, right down to the rhetorically powerful but we need to ask whether he is going to— substantively nonsensical invocation of 9/11. other things within the law of war that (Being more subtle about it than Rudy we need to be concerned about; things before he kills them, is he going to use Giuliani doesn’t make it right.) To credu- that happen in war are not quite the the fifth amendment in private in the lously accept this sort of response on an same kind of standard that we would Oval Office, or is the fifth amendment issue as important as this one is behavior have in the United States. going to be public? If it is public, I do unfit for any citizen of a free country, where Ackerman goes on and he says: not know how you kill someone. If you safeguarding the rule of law is a civic respon- This is an indicator of our times. are going to get some kind of due proc- sibility. The time to discuss the appropriate ess, you would have to get tried in a scope of the president’s authority is now. This is actually Holder. court. I am not sure how this would go I know many would rather defer this, This is an indicator of our times, not a de- parture from our laws and our values. The forward. they would rather do this at another debate over killing Awlaki, whom Holder time. But the thing is, it is now. We barely discussed, began long before a Hellfire This is an additional quote from brought the issue up. We have spent a missile fired from a drone killed him and fel- Holder from the same speech: lot of time on this issue. Why not have low propagandist Samir Kahn in September. The Constitution’s guarantee of due proc- a discussion, instead of putting me off Awlaki’s father sued the Obama administra- ess is ironclad, and it is essential—but, as a and saying: Oh, we will have a com- tion in 2010 to compel it to reveal its legal recent court decision makes clear, ‘‘it does mittee hearing on it. Sorry you are not rationale for the long-telegraphed strike. not require judicial approval before the on that committee, but we are going to The administration refused, with a judge’s president may use force abroad against a support. senior operational leader of a foreign ter- have a committee hearing on this at a For months after Awlaki’s killing, the gov- rorist organization with which the United later date. It will never be discussed. ernment never disclosed any evidence sup- States is at war, even if that individual hap- porting its decision that Awlaki posed an im- Nothing ever happens around here. I pens to be a U.S. citizen.’’ mean, they promise you stuff. They minent danger to Americans beyond his say: We are going to take care of it. rhetoric of incitement. But during the Feb- Well, that is kind of confusing. If But it never happens. I think it never ruary sentencing of the ‘‘Underwear Bomb- that is going to be the standard here, I er,’’ the government put forward a court fil- would be quite concerned. The standard will. ing claiming that Awlaki worked intimately The time to discuss the appropriate scope with convicted would-be bomber Umar Fa- over there—I think there are argu- of the president’s authority— rouk Abdulmutallab— ments on both sides of it. But the This is Friedersdorf again. Who was the Underwear Bomber. standard over here, I cannot imagine The time to discuss the appropriate scope —to blow up Northwest Airlines. Holder re- that this is the standard we are going of the president’s authority is now, not in ferred to that connection in his speech. to use. Because basically he is saying the aftermath of a catastrophic attack on Several legal scholars have wondered why the Constitution applies unless we the nation, as Holder suggests. The fact that the United States did not have to provide he disagrees speaks volumes about team think it does not apply, and then de- Awlaki with due process of law before killing Obama’s reckless shortsightedness. cide it does not apply. him, as stipulated under the fifth amend- This is another article from Wired. ment. Holder contended that the United But then he says, as long as we are at This is from today. This is by Spencer States actually did, even if no judge ever war. Well, who are we at war with? We Ackerman. heard the case. are at war basically with anybody who

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00067 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1204 CONGRESSIONAL RECORD — SENATE March 6, 2013 does not like us around the world. I am must be given the opportunity to surrender It is significant that on March 4, 2013, not sure if there is ever an end to that. before lethal force is used against them. And just a couple days ago, Senator PAUL I think there are problems overseas. I’m particularly concerned that the geo- received back from the administration graphic boundaries of this authority have But particularly the problem is—I not been clearly laid out.’’ a letter signed by Eric H. Holder, Jr., think the problem at hand that we are which reads as follows: The point on the geographic bound- trying to get to the root of is, is this Dear Senator Paul: aries is a pretty important point be- the standard? If you are using this On February 20, 2013, you wrote to John cause this is one of the concerning standard overseas, are you going to use Brennan requesting additional information items about what they maintain. They the standard here that basically the concerning the Administration’s views about say there are no geographic limita- whether ‘‘the President has the power to au- fifth amendment applies when we think tions. They say they get the authority thorize lethal force, such as a drone strike, it applies, and it does not apply when for war everywhere around the world, against a U.S. citizen on U.S. soil, and with- we do not think it applies? as well as war here, because they say out trial.’’ This is Ackerman, at this point, from As Members of this Administration have there were no geographic limitations Wired again. previously indicated, the U.S. government to the use of authorization of force Holder did not explain why Awlaki’s 16- has not carried out drone strikes in the when we went to war in Afghanistan. United States and has no intention of doing year-old son, whom a missile strike killed I think people who voted for that— two weeks after his father’s death, was a so. As a policy matter, moreover, we reject lawful target. Holder did not explain how a and I would have voted to go to war in the use of military force where well-estab- missile strike represents due process, or Afghanistan—thought we were going to lished law enforcement authorities in this what the standards for due process the gov- Afghanistan to fight the people who country provide the best means for incapaci- ernment must meet when killing a U.S. cit- got us on 9/11. tating a terrorist threat. We have a long his- izen abroad. Holder did not explain why the I don’t think they thought, when tory of using the criminal justice system to government can only target U.S. citizens they voted for that resolution, it incapacitate individuals located in our coun- try who pose a threat to the United States suspected of terrorism for death overseas and meant we could have war in the United not necessarily domestically. and its interests abroad. Hundreds of individ- States under that resolution and that uals have been arrested and convicted of ter- As I said, a lot of these things over- the standard would be one of the laws rorism-related offenses in our Federal seas you can debate and try to decide of war or one of martial law within the courts. whether this is a war zone or not a war United States. I don’t think anybody The question you have posed is therefore zone. But they obviously do not apply voting on it had that conclusion. That entirely hypothetical, unlikely to occur, and in the United States. The most trou- is a real problem. Those people are say- one we hope no President will ever have to bling thing about the killing of the 16- confront. It is possible, I suppose, to imagine ing, including the administration is an extraordinary circumstance in which it year-old son of Awlaki is the Presi- saying, no geographic limitations and, would be necessary and appropriate under dent’s spokesman’s response to this. essentially, there are no temporal limi- the Constitution and applicable laws of the You know, the flippant nature of it and tations. We have a perpetual war with- United States for the President to authorize the irresponsible nature for him to out any geographic limitations, which the military to use lethal force within the have said: Well, he should have chosen now they want to apply war principles territory of the United States. For example, more responsible parents. If that is the to killing in the United States. the President could conceivably have no standard we are going to have for kill- Ackerman continues quoting Senator choice but to authorize the military to use such force if necessary to protect the home- ing Americans on American soil, that WYDEN: land in the circumstances of a catastrophic we are going to kill people who do not ‘‘And based on what I’ve heard so far, I attack like the ones suffered on December 7, have responsible parents, we have set can’t tell whether or not the Justice Depart- 1941, and September 11, 2001. the bar pretty low for our killing pro- ment’s legal arguments would allow the Were such an emergency to arise, I would gram. President to order intelligence agencies to examine the particular facts and cir- I think al-Awlaki was killed—I don’t kill an American inside the United States.’’ cumstances before advising the President on know. I have not seen the classified in- He is unclear about it, and he has the scope of his authority. formation. I think the son was killed seen a lot more information than I Sincerely, Eric H. Holder, Jr., Attorney General. probably when they either targeted have because he is on the Intelligence It is good to have this letter as a re- someone else or they did what they call Committee and sees secure and classi- sponse to Senator PAUL’s inquiry. I be- these signature strikes where they fied information. He is unsure of it. lieve the inquiry Senator PAUL raised don’t know whom they are killing nec- This makes me think nobody in the is a legitimate one. It is also essential essarily. They just think they are bad Senate or the Congress knows whether we have some clarity with regard to people, they came from a meeting of they are asserting whether they can the administration’s position on this other bad people: kill Americans on American soil. Mary Ellen O’Connell, the vice president of type of an attack. It is important for The decision to kill an American, Holder the American Society of International Law, us to remember every time government said, is ‘‘among the gravest that government found Holder’s legal rationale flimsy, stat- leaders can face.’’ Targeted killing is not as- acts, it does so at the expense of the ing: liberty of individual Americans. sassination, he argued, because ‘‘assassina- ‘‘First, [Holder] restates the renamed glob- tions are unlawful killings.’’ Among the few This doesn’t mean government action al war on terror, which Obama himself con- is bad. This simply means government external limitations on the government’s demned. Then he tries the United Nations war power that Holder mentioned were the Charter Article 51 but does not include the action always has to be weighed. It al- approval of a local government where the whole article: It says member states of the ways has to be counterbalanced against strikes occur—which must have pleased re- U.N. have an ‘inherent right of self-defense’ the impact it has on the citizenry. It is luctant, unsteady U.S. Allies in Pakistan if an armed attack occurs. Article 51 does very important we approach these and Yemen. not provide a legal green light for targeted things delicately. Nowhere is this bal- He is saying an interesting thing, and killing,’’ O’Connell said in an e-mail. ‘‘Fi- ancing act more necessary than where probably Pakistan has approved of nally, he adds the argument that the U.S. we have circumstances in which our most of the killings. However, Paki- may use force against States that are ‘un- government action threatens not just able or unwilling’ to act. This argument has stan wants to come in and wants to the liberty but also the property or, convince and say: No, we haven’t. They no basis in international law. It simply does not exist. So regardless of how carefully you most important, the life of an indi- are doing it against our will, but my target under the law of armed conflict, there vidual American. Where life is threat- guess is they have been told. is no right in the first instance to target at ened, the concerns of the Constitution Some Members of Congress don’t consider all.’’ are at their highest where life is that a sufficient safeguard. Without yielding the floor, I would threatened as a result of government ‘‘The government should explain exactly like to entertain a question from the action. how much evidence the president needs in Government owes it to the citizens to order to decide that a particular American is Senator from Utah. AUL part of a terrorist group,’’ says Sen. RON Mr. LEE. Senator P recently sent undertake all its activities with ut- WYDEN, an Oregon Democrat who sits on the a letter requesting some information most caution. It owes it to its citizens Senate’s Intelligence Committee. ‘‘It is also from the Obama administration relat- never to deprive human beings of their unclear to me whether individual Americans ing to drone strikes. lives, particularly American citizens,

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00068 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1205 unless it has done so through operation lawyers who specialize primarily in thing has to occur in order to prevent of law with what we call due process of litigation, lawyers who specialize pri- something else even worse from hap- law. marily in attracting agreements or in pening. It is on this concept, due process of giving advice to people. (Mr. SCHATZ assumed the Chair.) law, that the 5th and 14th amendments The Office of Legal Counsel within An individual, for example, when of our Constitution focus so intently. the U.S. Department of Justice is the confronted with an imminent threat to Due process of law is a familiar phrase chief advisory office within DOJ. It was his or her own life, is entitled to use le- to many Americans. We have heard the Office of Legal Counsel which thal force in defending him or herself this phrase over and over. We under- drafted one or more memos outlining in order to avoid that attack—in order stand on some level what it means, but the circumstances in which the Obama to avoid death. But it does have to be I would like to talk for a few minutes administration might consider under- an imminent threat. There are other in response to Senator PAUL’s question taking actions involving lethal force examples. When a person argues that a about the fact that in order to have against American citizens. certain action was undertaken under due process of law, you need to have a Sadly, most of us in the Senate have duress, there does have to be some de- familiar legal standard or at least a been unable to review those. The Amer- gree of imminence. And it is appro- legal standard. You have to have a law ican people generally have been unable priate in this circumstance, where we that is capable of being applied in a to review them, but it is particularly are talking about authorizing the Fed- way that American citizens can under- frustrating those of us who are mem- eral Government of the United States stand. bers of the Senate Judiciary Com- of America to use lethal force on an They can read the law. They can re- mittee and, therefore, have an over- American citizen, that there ought to view it. They can understand what the sight responsibility over the U.S. De- be some sort of imminent threat to law requires of them. They can under- partment of Justice, have not been for- American national security that neces- stand what it is that the law demands tunate enough to review the memo- sitates and fully justifies that action. and what it is that the law authorizes randa upon which the Obama adminis- The strange thing about the white the government to do. In the absence of tration has apparently relied in under- paper, this white paper that was leaked such a law, a law that can be applied, taking this legal analysis. by the Obama administration to the a law that can be understood in ad- I had the opportunity to question and news media, is that it redefined ‘‘immi- vance of its application, you run a very did question this morning Eric Holder nence.’’ It redefined it completely. It real risk of arbitrary and capricious with regard to these memoranda. I ex- defined it to be something else, some- government action, where government plained to him the great need we have thing that bears no resemblance to action is arbitrary, capricious and to be able to review these memoranda, what you or I would call an imminent where it threatens to underline life, particularly as members of the Senate threat. It seemed to suggest that an liberty or property but especially life. Judiciary Committee. I explained to imminent threat may occur even when There is the greatest level of concerns him this is part of our oversight re- there is nothing that is about to occur where the greatest level of detail must sponsibilities. This is our duty. It is on an immediate basis that would in- be examined with regard to what the our right to see such documents, and it volve a loss of American life or an at- government wants to do. is very frustrating we have not been al- tack on an American compound or in- In this circumstance, where the ques- lowed to see such documents. stallation or any kind of a loss or a tion relates to under what cir- I added to that my concern what we deprivation to American national secu- cumstances, to what extent the govern- do have is a different document, not rity. ment may take an American life, the the Office of Legal Counsel memo- This is a problem because, as we dis- government may snuff out the life of randum but something simply cap- cussed just a few minutes ago, in order an individual American citizen, the tioned as the ‘‘Department of Justice to have due process of law, you have to government has an obligation to see to White Paper.’’ I always thought that have law operating, and you have to it and to assure its citizens that it will was an interesting phrase, ‘‘white have law operating as something other not ever undertake such an action paper.’’ I don’t know why they feel the than a tool to justify arbitrary and ca- without due process of law. To have need to call it that, why they don’t just pricious behavior by government. You due process of law, you need to have a call it a paper. Normally, we don’t have have to have a discernible, judicially discernible legal standard. A discern- legal analyses or other important docu- manageable legal standard. Even if it ible legal standard is not entirely evi- is something that is never going to go dent on the face of this letter. That is ments which are written on green through a court, it needs to be a legal understandable. It is just a brief re- paper, orange paper or any other color of paper. Nonetheless they call it a standard that means something, that sponse to Senator PAUL’s inquiry. It is, however, a little troubling Eric white paper. has teeth to it, that doesn’t just say Holder doesn’t do more to assure Sen- This paper was leaked by the Obama government officials may undertake administration to the news media. This ator PAUL in this response to his letter action X, Y, or Z if the government of- that these kinds of actions wouldn’t be particular paper purported to contain ficial in question feels moved upon to necessary to undertake on American some analysis, perhaps in summary take such action. There needs to be soil, that these kinds of actions would form, the same type of analysis of what something that has the capacity to re- be fraught with constitutional prob- was used in the still secret Department strain government action, and it needs lems when undertaken on American of Justice Office of Legal Counsel to be—and the basis of and by oper- soil. memorandum. ation of generally applicable stand- It is difficult to understand why the There were a couple things I found ards—generally applicable rules of law. Attorney General wouldn’t just say we very disturbing about the contents of That is what we mean when we say due will not do this. This would be fraught the white paper. First, the white paper process. with constitutional problems. This is focused on the fact that the U.S. Gov- Again, due process and the restric- not something we would do. ernment may use lethal force to kill an tions that accompany it are at their Also troubling is the related point American citizen only where there is highest when government wants to that the Attorney General has appar- an imminent threat of some sort. take an action that is designed to or ently relied on some legal analysis pro- Where the other conditions outlined in could lead to the ending of a human vided by the chief advisory body within the memorandum are satisfied, there life. The sanctity of human life re- the U.S. Department of Justice. The still has to be an imminent threat of quires nothing less than that. U.S. Department of Justice is some- some sort. There needs to be an immi- Now, there was another part of the thing one might loosely describe as the nent threat that the use of lethal force memo that was also a little bit dis- largest law firm in the United States. by the government on the U.S. citizen turbing. The other part of the memo It is the law firm of the Federal Gov- in question is designed to confront. suggested it would, of course, be nec- ernment. That is a somewhat familiar legal essary in order to carry out an action Within any law firm you have law- term. It is used in other context to involving lethal force against an Amer- yers who do different things. There are identify a circumstance in which one ican citizen; that efforts to capture

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00069 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1206 CONGRESSIONAL RECORD — SENATE March 6, 2013 that individual would somehow prove is dated March 5, 2013, and here is what We have elsewhere in the Constitu- to be futile; that those efforts wouldn’t it says: tion other protections that guarantee work. But there, again, the definition Dear Senator Paul: this. We have protections indicating supplied by the white paper suggested Thank you for your February 20, 2013, let- that if a person is charged with a crime something else. The language of the ter regarding the power to authorize lethal by our government, under the sixth white paper suggested almost that the force, such as a drone strike, against a U.S. amendment they have a right to a jury citizen on U.S. soil, and without trial. government official in question, in The Department of Justice will address trial, and they have a right to counsel charge of this decision to end an Amer- your legal question regarding the President’s in connection with that trial. They ican citizen’s life, could be made some- authorities under separate cover. I can, how- have a right even to counsel paid for by what arbitrarily, somewhat capri- ever, state unequivocally that the agency I the government if they can’t afford an ciously. This is a problem. have been nominated to lead, the CIA, does attorney in connection with that. The You don’t want someone sitting not conduct lethal operations inside the seventh amendment, likewise, protects there one day having the authority to United States—nor does it have any author- ity to do so. Thus, if I am fortunate enough the right to a trial in the context of say so-and-so is a troublemaker, so- to be confirmed as CIA Director, I would civil disputes. and-so shouldn’t be there, so-and-so have no power to authorize such operations. So these and other protections over- has been involved with some very bad In addition, I have asked the CIA to re- lap to guarantee that Americans will actors. So-and-so may in fact be a bad spond to your letters of January 25 and Feb- have due process. Frequently, what due individual, may in fact be associated ruary 12, 2013, which raise a number of im- process entails, among other things, is with people who want to harm the in- portant questions regarding issues per- the privation of a jury trial. You see, terests of the United States or may taining to the advancement of America’s juries do perform an important func- strategic priorities around the globe. even have been involved in the plan- Sincerely, John O. Brennan. tion. Juries are there to help protect ning of attacks on the United States, This is helpful. This is a helpful indi- our rights. When we have a jury of our but you don’t want the government of- cation from a government official who peers deciding critical questions with ficial in question to be able to end that has been nominated to head the Cen- regard to our interests in life, in lib- American citizen’s life just on the basis tral Intelligence Agency, and who ac- erty, in property, we see to it that a of flimsy analysis, on a toothless legal knowledges if he is confirmed to this panel of lay persons, a panel of non- standard. You want the American peo- position, he would have no authority as government officials, a panel of citi- ple to continue to be able to live under Director of the CIA to order lethal zens who have sworn an oath to do jus- the rule of law and with an under- drone strikes within the United States. tice will do precisely that, and they standing that actions of government, So that is helpful. will not shrink from the obligation to particularly those actions designed to It is still significant that we be al- enforce the demands of the Constitu- bring an end to a human being’s life, lowed to ask from time to time what tion. They will not shrink to enforce won’t be undertaken lightly. the CIA might do with regard to other the demands of the law. They will not That is what it means to live in a so- persons—other persons including U.S. shrink from their duties, and they will ciety that operates under a rule of law citizens outside the United States—and not see themselves as part of a govern- as opposed to the rule of individual under what circumstances a lethal ment establishment. human beings. It is that we have stand- drone strike or a different type of le- This is how our constitution protects ards and we reduce those standards to thal force might be appropriate when us and insulates us from the govern- writing. Those standards are rules that directed toward an American citizen ment because we are the people; and are generally accepted and generally outside the United States. we, the people, control the govern- applicable, that govern the conduct of I notice one phrase he uses in his let- ment. We, the people, have the right to individuals in society, and both the ter, when he says: ‘‘ . . . such as a a jury trial. And when we actually get governors and the governed will them- drone strike against a U.S. citizen on a jury trial, we are able to see our selves determine the behavior of those U.S. soil, and without a trial.’’ When- rights protected. involved in our society. ever we are talking about any person So, in response to the Senator’s ques- So our law of laws, our rule of rules, within our jurisdiction, whenever we tion, I do think there are some prob- our most fundamental law, is the U.S. are talking about an American citizen, lems that we confront as a society. I Constitution—this 225-year-old docu- regardless of where that American cit- think the security of the United States ment that I happen to believe was writ- izen might be found, it seems to me we is, of course, of paramount importance. ten by the hands of wise men raised up do owe that person certain responsibil- We need to protect American national by their Creator for that very purpose. ities. We owe that person a duty of fol- security. We need to protect Ameri- These were wise men who understood lowing the law, of following our most cans. As we do so, we also need to pro- human nature, wise men who under- fundamental law—the U.S. Constitu- tect the inalienable rights of individual stood that whenever you put an indi- tion—and following other statutory au- Americans to the due process guaran- vidual in charge of a lot of other indi- thorities we have in place specifically tees that are hundreds of years old, viduals, there are risks—risks that are to protect the rights and the interests, that extend at least as far back as the inherent in human nature, risks that the life and the liberty and the prop- drafting and ratification of our con- can be managed if you put certain erty of the American people. stitution, and are, of course, much checks and balances in place, and those We are told those things cannot be older than that. They are centuries, in- checks and balances will ensure that taken by the government without due deed, they are millennia old. We must no one person, no one group of people, process of law. Now, normally, when we continue to honor them. will become so powerful as to become a take away someone’s life or their lib- Mr. PAUL. Mr. President, I would law unto themselves. erty or their property, we entitle that like to thank the Senator from Utah You see, that is what this document, person to a trial. This is where our con- for his expert constitutional analysis, our Constitution, the Constitution of stitutional protections overlap a little and I rely on his advice and analysis of the United States, was designed to en- bit and they complement each other. legislation and want to thank him very sure; that we, as Americans, would live We have in the fifth amendment this much for being part of this debate. free, and we would live free because our protection that says that no person We are in contact with the White laws would govern us, not the whims or shall be deprived of life, liberty, or House, and we have told the White the caprice of individuals. property without due process of law. House we will allow debate on Brennan Now, I do have another letter that I There, again, at a bare minimum, that as soon as they will give a clarification would like to share. This is a letter entails the operation of these generally of what their opinion is on drone that was sent to my friend, Senator applicable laws that actually have strikes in America. PAUL, from Mr. John Brennan, cur- some standards to them. It typically I think after Holder’s cross-examina- rently serving as Assistant to the also involves, quite necessarily, an op- tion, his opinion may not be too far off President for Homeland Security and portunity on the part of the person from what we are asking for. But we Counterterrorism. This letter is dated being acted upon by government to want it clarified and in writing because from just earlier this week. In fact, it have a trial. we think this is an important battle

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00070 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1207 for the American public and an impor- the floor tonight, to ask finally from Mr. PAUL. Madam President, I thank tant battle for the Constitution. So if the White House and from the nominee the Senator from Wyoming for coming the President or the Attorney General what the specific position and policy of to the floor and helping to advance this will promise to give us something, even this administration happens to be on debate. One of the points that was give us something by morning, we are drones. I know we have a unanimous made toward the end is about our sol- more than willing to go ahead with the consent request from Senator PAUL and diers he visited and that he saw the ca- vote in the morning with that informa- in a second I am going to ask him to pacity of the drones. The one thing tion. explain and maybe reiterate his unani- that should not be lost here is that we At this time, without yielding the mous consent request, explain the reso- are not arguing about the use of floor, I wish to entertain a question lution he wishes to vote on. I think the drones, particularly in defense of our from the Senator from Wyoming. Senator deserves a vote. We want to military. When people are shooting at The PRESIDING OFFICER (Ms. make sure the public understands what our soldiers I want the best equipment HEITKAMP). The Senator from Wyo- we are discussing here. That is why I in the world that we have to defend ming. appreciate the leadership of Senator them and to win our battles. That is Mr. BARRASSO. Madam President, I LEE who has come here as a constitu- something I think we should all want. come to the floor of the Senate in great tional scholar to address some of these But I think our American soldiers admiration for the Senator from Ken- concerns. would be disappointed in us here at tucky, for what he is doing to try to I think before many Senators are home if they felt, which I think many get information. All we are asked to do able to make the final decision of how of them do, that they are fighting for is to give advice and consent to the to vote, how to give advice and consent our Bill of Rights, they are fighting for President on this very important nomi- to the White House, we need more in- our Constitution, they are fighting for nee to be the head of the Central Intel- formation. We need to hear from the our conception of freedom—in doing so, White House. We need to hear from the ligence Agency, the key to central in- I think they would be disappointed if administration because the people all telligence in this Nation. I come to the they felt the drones that were being around the country want those same floor this evening to thank my col- used against the enemy in the moun- questions answered. league from Kentucky for the leader- tains of Afghanistan and Pakistan were ship he has continued to show by ask- We do have a situation where the Senator from Kentucky said he is will- going to be used against Americans in ing questions which are not just ques- ing to have a vote. He is willing to America without any kind of due proc- tions of his, they are questions of the allow a vote on this nominee on the ess, because the whole idea of the Con- American people. stitution is what they are fighting for. I was traveling around the State of floor of the Senate as soon as his ques- tion is answered. He would be happy to That is what the President has pledged Wyoming last week, talking to folks. I to uphold and preserve. So it is such an went to 13 different counties in our proceed with that vote as early as to- morrow morning. important battle. State of 23 counties. There were many The American people deserve better The unanimous consent that we put questions being asked about drones, than they are getting right now from forward, which we had hoped they not just their accuracy but their intent this administration in so many ways. would let us vote on in the morning and what this administration’s policy This is but one. That is why I think all also but they have disagreed with, basi- is related to drones and how they can of us try to go home every weekend to cally says the use of drones to execute be used. People in my home State of learn what is on the minds of folks in or target American citizens on Amer- Wyoming are concerned about drones our home States, in our home commu- ican soil who pose no imminent threat being used in the United States, not nities. This is clearly what I have been clearly violates the constitutional due just specifically for attacks against hearing about, traveling around Wyo- process rights of citizens. American citizens but also the concept ming, a State of vast open spaces, a The point we are trying to get at, in observation, in surveillance. What State of great majesty and beauty, but which I think for the administration about our rights as citizens to privacy? a State where people are concerned ought to be an easy question—we are Those are the questions that come up with their own privacy, with overhead not talking about someone attacking as I travel around the State. surveillance and of course not just the Twin Towers. We are in agreement I had a telephone townhall meeting their own personal privacy but their that the military can repulse attacks the other evening with many people security. by American citizens in planes. Some from all around Wyoming on the line. What are the rights and responsibil- of the hijackers—I think some of They admire the questioning from the ities of a national government when them—I don’t know if any of them Senator from Kentucky. They have new technology exists, as we have seen were citizens or not but—yes, some of concerns: Is Big Brother watching? with drones? I had the privilege of vis- them were citizens, I think. The point What is happening and what role has iting our soldiers overseas in Afghani- is, no matter who you are, if you at- government in observing and surveil- stan with a number of Senators in Jan- tack the United States you can be re- lance and looking into the lives of the uary. We have seen up close, through pelled and that lethal force can be American people? detailed video, the capabilities of used. It was not until Senator PAUL asked drones, capabilities that were not there The point is we are concerned that the question would there be strikes on that many years ago. Questions such as some of the drone strikes overseas are American citizens in America that I this would have never arisen a number of people not involved in combat at the think things became very focused at of years ago because the technology time, and that is another question, but home and all around the country. Then was not there. But now the technology here at home I don’t think we want to we got more e-mails, more concerns, is there. With that given technology, have a standard where someone who we because the specific question that Sen- that raises new questions. That is why think might be a terrorist, who we ator PAUL is asking is a question that I think so many Americans are appre- think might be engaged in something, is on the minds of all Americans. I be- ciative of the work by Senator PAUL to who is in a restaurant eating dinner, lieve Senator PAUL deserves an answer. specifically ask questions that have would be killed. I think we want more The American people deserve an an- never been asked before because the protections for Americans. We want, if swer. So it is not just Senator PAUL technology was not there before. Now you are accused of a crime, to have the who deserves an answer, it is an answer we have the technology, we have the ability to defend yourself in a court of to all of the people of this country. But know-how, and the question continues law. I appreciate Senator PAUL’s leadership to be asked. I, without relinquishing the floor, in asking the specific question. I ask my friend and colleague from would be happy to entertain any other The Intelligence Committee, the Se- Kentucky if he could explain perhaps questions. lect Committee on Intelligence met, his unanimous consent request, what The PRESIDING OFFICER. The Sen- they had hearings, they had debates, vote he is asking for, why it is so im- ator from Wyoming. discussions, deliberations, and actually portant, and what it means to all of us Mr. BARRASSO. Madam President, I they voted. That is why we are here on as free citizens in this great Nation. come and ask my colleague if this is

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It was a pretty sim- It has been the law since 1947. eight of them in four different loca- ple request, an easy request until we One would not think it would be that tions that I went to throughout Af- got the government to explain what hard to get them to acknowledge they ghanistan. I met soldiers from Ken- kind of criteria, what kind of rules are going to obey the law. The posse tucky in each of those locations. So we they were using for flying over farms. comitatus law has been here since the are both from States with a significant We got 56 Senators to vote to ban 1860s, and it says the military doesn’t commitment to our military. People these drone flights until we got more operate in the United States. How hard over the centuries have continued to information. But it is like a lot of is it for the administration to say we fight and defend our freedoms. But other things in the Senate, it took 60 are going to adhere to the posse com- today in Afghanistan we have soldiers votes, so we didn’t actually quite win itatus law and that we are not going to from my home State and your home even though we had a majority. use the military in the United States? State doing what they do to keep us With regard to what we are trying to That clarifies quite a few things be- free, defending the Bill of Rights, de- accomplish through this, the main cause if they think they are going to fending the Constitution. thing we want is a public acknowledg- kill Americans with the FBI, at least When we talk about the Bill of ment from the President or from the we already know the FBI works under Rights, let’s think about what Ronald Attorney General, saying that their the rules of the Constitution. I would Reagan said. The Bill of Rights was not policy is not to kill noncombatants in think at that point we are getting established to protect the government America. Many of the drone strikes somewhere or at least moving in the from the people, it was established to overseas have been noncombatants—at right direction. protect the people from the govern- least at the time they are killed they We are not looking for something ment. Search and seizure, freedom of were not involved in combat. I don’t where we permanently stop the Presi- press, freedom of speech, freedom of re- think it is too much to ask the Presi- dent from getting his political ap- ligion, our second amendment rights to dent to clarify that what he means is pointees. I have mentioned previously I own and bear arms—those are the con- the United States can repel invasion, voted for three of the President’s polit- stitutional rights, individual rights the United States can repel attacks, ical appointees. My point in being here that people are fighting for every day whether they are American citizens or doesn’t have so much to do with the in Afghanistan. They want to know not. We don’t have a dispute with that. CIA Director as it has to do with the when they get home what sort of free- Our concern is when you look at the policy of the administration on drones. doms are there going to be in this drone program overseas, a lot of people He just happens to have been in charge country? Where is the role of liberty are sitting around eating, walking, of that policy on drones and the CIA and freedom in our society? sleeping in their house—that that is has something to do with drones over- That is why there is no better time, not the sort of a program I can imagine seas. At least Brennan has been forth- I would say, than this evening, before using in the United States. I cannot right and finally came forward with a voting on the nominee to be the Direc- imagine we are going to have drone letter that says the CIA doesn’t oper- tor of the Central Intelligence Agen- strikes on people while they are asleep ate in the United States. cy—the head of the CIA for the coun- in their home or when they are out eat- Unfortunately, Attorney General try—what better time to have this de- ing in a cafe or eating in a restaurant. Holder’s response has been somewhat bate than during that nomination proc- I cannot imagine that is the standard muddled in the sense that he kind of ess about where is that line between we are going to use. Maybe it is just a says we have not yet, we don’t intend freedom of individual citizens and the misunderstanding. Maybe the Presi- to, but we might. Now he says there is rights of a government which now has dent can clear this up. an extraordinary circumstance, but his a technology which has not previously When Attorney General Holder was extraordinary circumstance doesn’t been there up until most recently. there this morning, the Senator from quite make any sense because it is 9/11 So I ask my friend and colleague— Texas asked him this question and or Pearl Harbor. Well, in both of those No. 1, I congratulate him and thank under pointed questioning it seemed as instances we would react immediately him for remarkable leadership. I hear if he was backing toward an answer to stop somebody, but they would not that all around my home State and I that might be acceptable. He said it be targeted drone strikes. I cannot know he hears it at home as well. He was not appropriate, but what we are imagine that we would know the per- hears it all around the country. But is looking for from the lead legal officer son’s name and who they are when they this a concern on the minds of people? of the President, from the President, is are flying a plane into a building. We Is there a reason we are here to bring something a little more precise than ‘‘I would respond to them, but it would this out, not just because a couple of don’t intend to,’’ or a little more pre- not have anything to do with the tar- Senators are on the floor debating it? cise than ‘‘it is not appropriate.’’ We geted drone strikes. It is sort of an- This is a crucial issue for this Nation. would like him to say that they don’t swering a question that wasn’t asked. Mr. PAUL. Madam President, one of have a legal authority to kill Ameri- At this time, Madam President, and the things I hear at home, similar to cans on American soil. We just don’t without yielding the time, I wish to en- what the Senator from Wyoming is believe they do. Targeted drone strikes tertain a question from the Senator talking about, is that we hear people in America, I don’t think they have the from Wyoming. worried about the erosion of their legal authority nor the constitutional The PRESIDING OFFICER. The Sen- rights. They worry about statements prerogative to do this, and they need to ator from Wyoming. from the President when the President admit to that. It has been like pulling Mr. BARRASSO. Madam President, I says he intends to protect the Con- teeth trying to get information or get have been able to put my hand on the stitution—except for maybe when it is them to acknowledge anything. Our letter Senator PAUL has written to infeasible or when it is inconvenient. I goal is to try to get the President to John Brennan on February 20. This is think that worries people. acknowledge something publicly, more something that I believe brought in One of the other things about drones, so than any kind of legislation. focus the key piece of what has been on which is not particularly related to We do have some legislation that we the minds of the people in my home this, necessarily, but I know in Wyo- are interested in. We are not demand- State with regard to their support for ming I bet they have the same con- ing that it pass in order to let this the question that Senator PAUL is ask- cerns, is our farmers are not too happy nomination go forward. What we are ing. Since I don’t serve on that com- about the government flying drones asking for is we will let them have a mittee and was not part of the hear- over their property. That is something vote any time they want if they will at ings, I wish to review this letter so I

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Dear Mr. Brennan, In consideration of your As people are following what the Sen- So I come to the Senate floor tonight nomination to be Director of the Central In- ator from Kentucky is doing here, in support of my colleague and agree telligence Agency, (CIA), I have repeatedly with what he is writing to John Bren- requested that you provide answers to sev- more and more people are asking and focusing on this specific question. The nan because the fundamental question eral questions clarifying your role in the ap- is: Do you believe the President has the proval of lethal force against terrorism sus- question I and many others have asked pects, particularly those who are U.S. citi- is not whether the administration has power to authorize lethal force, such as zens. or intends to carry out drone strikes a drone strike, against a U.S. citizen It goes on to say: inside the United States, but whether on U.S. soil and without trial. Senator PAUL goes on: Your past actions in this regard, as well as they believe they have the authority to your view of the limitations to which you do so. The question is about whether it I believe the only acceptable answer to this is no. were subject, are of critical importance in has the authority to do so. The ques- assessing your qualifications to lead the CIA. tion is not whether they have carried So I would ask Senator PAUL, That is what we are doing. We are them out, not whether they intend to, through the Chair, if he could perhaps here in our role to advise-and-consent but do they have the authority to do add a little light to this matter. This the President on a nomination he has so. This is an important distinction letter was sent to Mr. Brennan on Feb- made. that should not and, I would add, can- ruary 20. It is now March 6. I know The letter goes on: not be ignored. there has been some give-and-take and If it is not clear that you will honor the Well, the letter goes on: back-and-forth, but the fundamental limits placed upon the Executive Branch by question is one that has been on the the Constitution, then the Senate should not Just last week, President Obama also avoided this question . . . minds of the people in my home State confirm you to lead the CIA. of Wyoming, as I traveled the State So the President has avoided the The people of Wyoming carry their over the last few weeks. question when posed to him directly. Constitutions in their breast pockets. Mr. PAUL. Madam President, we sent Instead of addressing the question of We have them with us just as Senator our last letter to John Brennan, I be- whether the Administration could kill Bob Byrd used to do right here on the lieve, in the latter part of January. We a U.S. citizen on American soil, he used Senate floor, and many Members of the got no response. We then sent him a a similar line, that ‘‘There has never Senate do. We need to make sure the second letter in the first or second been a drone used on an American cit- limits placed upon the executive week of February and got no response. izen on American soil.’’ branch by the Constitution are still We then sent our third letter, which I Well, we believe that. We know that upheld; otherwise, the Senate should believe is the letter the Senator was to be the case. We know that is the not confirm Mr. Brennan to lead the reading from, and that was a couple of President’s belief. We know that is the CIA. weeks ago. We got no response to any testimony of the nominee to be the CIA So the letter from Senator PAUL goes of these letters. Director, but it evades the question. on to say: However, when the committee—both That is actually what Senator PAUL During your confirmation process in the Republicans and Democrats—was hold- says in his letter. Senate Select Committee on Intelligence, ing up his nomination last week and committee members have quite appro- The evasive replies from the Administra- the chairman of the committee asked priately made requests similar to questions I tion to this valid question have only con- have raised in my previous letter to you. fused the issue further without getting us for a response, all of a sudden we got a response. The response from Brennan I agree. Members of the committee any closer to the actual answer. was actually encouraging. The re- did make appropriate requests and So it is not whether they have intent sponse, I believe, was this morning or wanted to have those same questions or whether they have done it before, yesterday. The day has kind of run to- answered that Senator PAUL has been but do they have the authority to do gether. That response was basically offering, and they are that you ex- so. This is the distinction which Sen- that the CIA doesn’t have the author- pound on your views, Mr. Brennan, on ator PAUL is trying to get at, as are ity to operate in the United States and the limits of executive power in using many Americans all around the coun- that is the rule. It has been the law lethal force against U.S. citizens. This try who are tuning in to this important since the 1947 National Security Act. is against U.S. citizens, especially debate. Our concern is that the Attorney when operating on U.S. soil. Senator PAUL goes on to say in his General’s response has been a little That is among the fundamental ques- letter to John Brennan: tions I have been asked during tele- more vague. Basically they have not For that reason, I once again request you done any killings in the United States phone townhall meetings when I travel answer the following question: Do you be- the State of Wyoming. It comes down lieve that the President has the power to au- yet. They don’t have any intention to, to the use of lethal force against U.S. thorize lethal force, such as a drone strike, but they might. The problem with the citizens, especially when operating on against a U.S. citizen on U.S. soil, and with- ‘‘they might’’ part is they left it kind U.S. soil. out trial? of vague. They said it would have to be The letter from Senator PAUL goes Let me repeat: extraordinary, but they point out two on and says: For that reason, I once again request you occurrences in which they would not In fact, the Chairman of the SSCI, Sen. answer the following question: Do you be- have targeted drone strikes. They Feinstein, specifically asked you in post- lieve that the President has the power to au- point out Pearl Harbor and 9/11. hearing questions for the record whether the thorize lethal force, such as a drone strike, In both of those instances, I think it Administration could carry out drone strikes against a U.S. citizen on U.S. soil, and with- is appropriate to respond militarily, inside the United States. out trial? but they would not have targeted drone We are now getting to the crux of the Senator PAUL goes on to say: strikes. They might use drones, but matter: drone strikes inside the United I believe the only acceptable answer to this they would not have targeted drone States. is no. strikes because they would be respond- Senator PAUL goes on: And that is what the American peo- ing immediately to someone attacking In your response, you emphasized that the ple believe as well. us. I think we all agree that we can re- Administration ‘‘has not carried out’’ such Senator PAUL concludes: spond to lethal force at any point in strikes and ‘‘has no intention of doing so.’’ Until you directly and clearly answer, I time. So has not done it, doesn’t intend to plan to use every procedural option at my I think the problem is the drone pro- do it, but it doesn’t answer the ques- disposal to delay your confirmation and gram around the world often targets

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Ul- That is what a responsible Senator wouldn’t arrest them. timately, there is a limitation of the The ranking member on the Intel- Constitution, but also there is a big de- does, a Senator who has taken quite se- ligence Committee made a good point. bate that needs to go on about what riously his role in providing advice and He said: Particularly if they are in a are the limitations of what we voted on consent to the President on a nomi- noncombat area in the United States, when we went to war. I was all in favor nee—a key nominee of a specific agen- wouldn’t you want to arrest them to of doing everything possible to those cy that operates under unique rules for get some information from them to see who attacked us on 9/11, of going to Af- transparency. if they might be a threat? One reason ghanistan. We need to figure out how So I think it is absolutely appro- would be to see if they are innocent or and what the completion of that mis- priate that Senator PAUL would write guilty. If they are truly guilty, you sion is, and whether that use or author- such a letter, and the questions raised would probably be able to get some in- ization of force is open-ended, forever, are appropriate, many of which have formation from them by interrogating or whether we are ever going to vote on been raised in a bipartisan way. them. that again, which I think means when So question No. 1: Do you agree with The Senator asked the question we vote on that again, we retain that the argument put forth on numerous about the limitations. That is ulti- power to bring it back to the Senate, occasions by the executive branch that mately what we are asking Brennan, to the Congress. It doesn’t mean we it is legal to order the killing of Amer- Eric Holder, the Attorney General, and would not do it again, but we should ican citizens and that it is not com- the President. What limitations do you have that debate and a vote again if we pelled to explain its reasoning in cede to your authority? The President are going to have another war. reaching that conclusion? Do you be- takes an oath that he is going to pre- At this time I would be happy to en- lieve this is a good precedent for the serve, protect, and defend the Constitu- tertain another question from the Sen- government to set? tion. He says he will do that, but the ator from Wyoming. What better, clearer question to ask oath doesn’t say: I intend to do that. It The PRESIDING OFFICER. The Sen- than that? He goes on: says: I will preserve, protect, and de- ator from Wyoming. Congress has been denied access to legal Mr. BARRASSO. What I just heard fend the Constitution. opinions and interpretations authorizing from the Senator from Kentucky is placement of U.S. citizens believed to be en- The problem we have is that when that these questions were asked in a bi- gaged in terrorism on targeting notices, thus John Brennan has been asked what are partisan way. This was not partisan at denying Congress the ability to perform im- the limitations to your authority, his all. I heard Senator WYDEN from Or- portant oversight. response has been that we have no geo- egon had similar questions. So this is a Oversight is a key role of this Con- graphic limitations. He says he gets request for information. gress. Oversight is a key, critical role that from the use of authorization of Now, I have been able to find a copy of this branch of government, of Con- force to go to war in Afghanistan. The for the first time of that January 25 gress. problem with that is I don’t think peo- letter that Senator PAUL referenced to Senator PAUL goes on: ple who voted for that intended that John Brennan, sent to him in his ca- Will you provide access to those opinions there would be no limitations and that pacity as Assistant to the President for as well as future opinions? we could have war anywhere. Homeland Security and Counterterror- Then the question is: Is there a limi- Very reasonable question. ism, and I just wanted to go through The Senator said: tation at the U.S. border? some of that and perhaps ask Senator Well, there is a law—a posse com- Would it not be appropriate to require a PAUL some specific questions related to judge or a court to review every case before itatus law—from after the Civil War it because it is my understanding that which says the military doesn’t oper- the individual in question is added to a tar- he has not gotten any kind of response geting list? ate here. It is not because we think the to that. military are bad people, we just have Legitimate question. The Senator mentioned three specific Please describe the due process require- different rules for the military. Our letters: First, the January 25 letter, soldiers are not used to dealing with ments in place for those individuals being then the letter of February 14, and then considered for an addition to a targeting list. due process, and we don’t make them. the letter of February 20 which, asks, Would you agree that it is paradoxical that On a battlefield when they are shoot- really, the ultimate question: Do you the Federal Government would need to go ing, they don’t give people their Mi- believe the President has the power to before a judge to authorize a wiretap of a randa rights. They don’t get to have a authorize lethal force such as a drone U.S. citizen overseas, but possibly not to jury trial. strike against a U.S. citizen on U.S. order a lethal drone strike against the same There is none of that going on on the soil and without trial? individual? battlefield so soldiers don’t have to So now I have all three of those let- I want to go back to this question deal with that, but policemen in our ters sent by Senator PAUL to Mr. Bren- when I am visiting with Senator PAUL, country have different rules of engage- nan in his capacity currently as the but this is the kind of thing I get asked ment. They are required to deal with Assistant to the President for Home- in Wyoming, and I am sure the Senator that, and we want that because we land Security and now the nominee to from Kentucky is hearing the same want there to be a process because we be the head of the Central Intelligence thing: Would you agree that it is para- have always been concerned in our Agency. doxical that the Federal Government country—we broke away from the So the letter goes: would need to go before a judge to au- mother country in England because we As the Senate moves forward with its con- thorize a wiretap on a U.S. citizen were concerned about too much power. sideration of your nomination to be the next overseas, but possibly not to order a le- We wanted that power to be reined in. director of the Central Intelligence Agency, thal drone strike against the same in- So our biggest problem is that when it will be necessary to examine not only your dividual? they say they have no geographic limi- qualifications and record, but also to deter- mine whether you will provide the necessary So what you have to do if you wanted tations, that could include America. So leadership as the head of an agency that op- to perform a wiretap would be more that was our next question. Senator erates under unique rules for transparency than you would have to do if you want- WYDEN asked Brennan in the com- and that quietly holds significant influence ed to do a drone strike. I think it is a mittee: Do you have the authority to over the advancement of America’s strategic very legitimate question because if do strikes in America? John Brennan’s priorities around the globe. not, Senator PAUL goes on to ask: answer was—this was the first answer No other agency is like the CIA— Please explain why you believe something before we got the second answer: Well, unique rules for transparency. So Sen- similar to the FISA standards should not be we want to optimize transparency and ator PAUL goes on: applied in regards to illegal action against

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This would be Homeland Security ship of Senator PAUL in asking these So as I look at this letter of January Counterterrorism Assistant Brennan— questions. 25 and look at the questions being to direct counterterrorism operations in The letter goes on: asked: future administrations as well as the tar- You have indicated that no credible evi- Do you believe the lethal drone strikes geted killing procedures you have outlined dence exists to support recent claims that ci- constitute hostilities as defined by the War in your playbook? vilian casualties resulted from U.S. drone Powers Act? Then Senator PAUL goes on and asks: strikes. On what legal basis does the administra- Aside from the President, how many people Again, this is the letter from Senator tion derive authorization to conduct such strikes? have access to the full disposition matrix? Of PAUL to John Brennan. He asks: those, how many participate in the process Please indicate how you define credible Then the President’s own words: to add individuals to the targeting list, and evidence and what process is in place to The President has stated that al-Qaida has how many have the authority to veto an in- evaluate the legitimacy of alleged civilian been decimated. Do you believe this asser- dividual’s inclusion? casualties. tion is correct and, if so, what is it that we This is a very thoughtful letter from Which countries have publicly stated their are now targeting if not al-Qaida? Senator PAUL to Mr. Brennan dated support for U.S. drone strikes within their That is a fundamental question that January 25, 2013. I want to continue to territory? Have any publicly indicated sup- came up in the hearings with then-Sec- share with the American people the port for U.S. drone strikes in the long term? retary of State Hillary Clinton. When questions that have been asked by Sen- In this letter: she came to the Senate, to the Foreign ator PAUL because I think they are so How relevant is the opinion of the public in Relations Committee, they changed telling and so appropriate: the countries where U.S. drone strikes are their tune and said: No, it was core al- ongoing? In those countries, how would you How many times have you specifically ob- Qaida; not just al-Qaida but core al- characterize public opinion toward U.S. jected to an individual’s inclusion on a tar- drone strikes? Qaida in Afghanistan, but, fundamen- geting list? How many times have you rec- In light of civilian casualties caused by the tally, the tune has changed. ommended to the President against includ- extensive use of drone strikes under your Senator PAUL goes on: ing an individual on the targeting list? guidance, do you continue to stand by your Is the U.S. drone strike strategy exclu- These are questions people want to remark that ‘‘sometimes you have to take sively focused on targeting al-Qaida or is it know the answers to: life to save lives?’’ also conducting counterinsurgency oper- How often are the criteria used for deter- Do you condone the CIA’s practice of ations against militants seeking to further mining whether an individual should be in- counting certain civilians killed by U.S. undermine their governments such as in cluded on a targeting list amended? drone strikes as militants simply because Yemen? Would you support expansion of the they were of military age and within close Not simply reviewed; he is not asking CIA’s drone program in Mali to provide sup- proximity of a target? Do you believe such port to counterterrorism operations? about a review but an amendment. accounting provides an accurate picture of We all know what happened there How many government officials and which our drone program? agencies participate in establishing these and the impact in Benghazi and the These are key questions to be asked concern that those who weren’t cap- criteria? Does the National Counterterror- for a nominee to the Central Intel- ism Center have final say over all criteria? tured or tried in Benghazi for the ligence Agency and they deserve an- Anybody who watches this issue atrocities there went then to Mali. So, swers before anyone makes a vote yes again, a key question. closely has asked these questions and or no. wants to know the answers. The Senator goes on: What changes to the CIA review process Do you believe a long-term, sustained Of those individuals who have been but are will you put in place or have you attempted drone strike program can eliminate all no longer included in the disposition matrix to put in place in your previous role to pre- threats to the American people or com- or other target list, how many have already vent further unintentional killings of U.S. pletely eliminate al-Qaida as you have indi- been killed? How many have been removed dissidents? What role did you play in approv- cated in your intent? If not, how would we from the list by other means? How many in- ing the drone strike that led to the death of eventually wind down the drone program? At dividuals remain in the disposition matrix or the under-aged U.S. citizen, son of al- what point do you believe drone strikes will other targeting list today? And how does the Awlaki? Unlike his father, he had not re- reach the point of diminishing returns? If so, number compare to the number in prior nounced his U.S. citizenship. Was this young can it be done on the scale the drone pro- years? Is the number growing? Is the number man the intended target of the U.S. drone gram operates on now or would it have to be shrinking? Is the number static? What is strike which took his life? Further, do you expanded? happening to those numbers? reject the subsequent claim apparently origi- How many U.S. citizens have been added to nating from anonymous U.S. Government I was going to specifically ask Sen- this disposition matrix or other targeting sources— ator PAUL to discuss this question: list? How many remain on the list? How Always a concern when you hear Do you support the Attorney General’s 2012 many U.S. citizens have been intentionally anonymous U.S. Government sources— guidance to the NCTC that it may delib- killed by U.S. drone strikes since 2008? How that the young man had actually been a erately collect, store and continually assess many have been unintentionally killed by massive amounts of data on all U.S. citizens U.S. drone strikes during that same period of military age male of 20 years or more of age, something that was later proven false by the for potential correlations to terrorism, even time? if the U.S. citizens targeted have no known In how many countries has the United release of his birth certificate. ties to terrorists? States executed a drone strike against a pre- Senator PAUL goes on in the letter: sumed terrorist? Do you believe that the inadvertent killing That gets into the whole thing we In each of the countries where the United of civilians and the resulting anger from started on earlier today. Where is the States has executed a drone strike in the local populations should cause us to limit role of individual freedoms, the right past 4 years, please provide a year-to-year rather than expand the drone program? to trial, the right to be heard, the right estimate of those who self-identify or other- Key question: to present their case? What about the wise associate with al-Qaida within that fundamental rights in the Bill of country. The CIA has and will reportedly continue to have authorization to carry out lethal Rights? I come to read this as somebody who drone strikes in Pakistan, autonomously and The final question here to Mr. Bren- has just come to see the capacity of the without approval from the President. Will nan is this: drones. I see the junior Senator from you seek to reduce or eliminate this practice Please describe in detail the steps you have Texas has been on the Senate floor as or keep it in place? Will you hold to the dis- taken as assistant to the President as well as well. He and I traveled together to Af- cussed 1 or 2 year phaseout of this authority transparency measures you would support as ghanistan. We have been able to see di- or work to expedite the phaseout? Director of the CIA to improve the trans- rectly video from drone strikes. We I could go on and on because these parency of the administration’s counterter- know the capacity. We know their abil- are key questions Senator PAUL asked, rorism policy. ity to target precisely. These are ques- and it all gets back to the fundamental Mr. President, I would just say that tions that in previous wars were not question of: Do you believe the Presi- they are extremely well-thought-out

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00075 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1212 CONGRESSIONAL RECORD — SENATE March 6, 2013 questions by a very thoughtful Senator off the floor of the Senate, as they say say u won’t unilaterally kill us. Stand with and questions to which the American in the beer commercial, it don’t get no Rand. people would like to have answers. better than this. So I thank the Sen- America is watching. Stand with Rand. There is more to the letter, but I I get the feeling that a more libertarian ator from Kentucky for giving me the stance is the only thing which can bring would like to take a second to ask Sen- opportunity to be welcomed to the about a fresh start for the GOP. Stand with ator PAUL if he feels those have been floor of the Senate and having a chance Rand. adequately addressed and if he feels he to stand with him fighting for liberty. I stand with Rand in his 9th hr awaiting has gotten closer to the solution to the There are a number of things I would the President saying he doesn’t have the question of, do you believe the Presi- like to address and ask the views of the power to kill Americans at will. dent has the power to authorize lethal Senator from Kentucky. I will begin by ‘‘I haven’t killed anyone yet and I have no force such as a drone strike against a observing, as I did the last time the intention of killing Americans, but I might’’—Barack Obama. Stand with Rand. U.S. citizen on U.S. soil and without Senator from Kentucky and I had a The federal government was closed today. trial? That would be my question to colloquy, that Twitter never sleeps, Yet Sen Rand Paul working overtime. Senator PAUL. and we heard from a number of tweets YouDaMan. (Mr. SCHATZ assumed the chair.) across the country. But those have not D-a-M-a-n is the precise spelling of Mr. PAUL. Mr. President, we have ceased. So since the Senator from Ken- that. sent three different letters over the tucky is still prohibited from looking Sen Rand Paul, 100% support you. Keep last month and a half or so, and we at his cell phone, I wanted to prevent going. Stand with Rand. really have not gotten a detailed re- him from going into technology shock This isn’t a filibuster. This is a line in the sponse to any of the letters. and withdrawal and provide an in-per- sand drawn with a quill pen that penned the We finally had one question answered son feed for him. constitution. from John Brennan, and that question This is about The Constitution. Stand with I think that one is particularly cool. was answered by him by saying the CIA Rand. Get it together GOP. Do you agree with your colleague, Rep Jus- does not operate within the United Stand with Rand. Rand praising Dem OR tin Amash? Stand with Rand. Sen Ron Wyden for raising the same ques- States, which is a reassertion of the Almost always the answer to that law, which we at least appreciated. But tions and concerns he has. Where are all the other Dems? one should be yes. they have not responded by saying Sad day when killing Americans is up for Do you stand with Sen Rand Paul and de- they will follow the law. We have not debate. Sad day that every Senator is not up mand an answer from the WH on extra-judi- gotten an adequate answer yet, al- there with him. Stand with Rand. We are cial assassinations of Americans? though we are getting closer to it. watching you guys. There is a word we do not hear too Maybe the Senator from Texas can I don’t know how Sen Rand Paul does it often within our own borders—assas- give us a little more insight into this . . . I’m tired just from WATCHING him. . . . a tip of the cap to you, sir. Thank you. Stand sinations. Yet that is exactly what we in the sense that the question now are talking about here tonight. really is not just Brennan. Brennan has with Rand. Sen Rand Paul is extemporaneously giving Don’t think I’ve ever been quite so proud answered that the CIA cannot operate a better human rights speech than Barack to say I’m from Kentucky. Stand with Rand. in the United States. But there is a Obama ever has. Stand with Rand. Sen Rand Paul getting to the heart of question: Can the military operate in And I am pretty certain that for the issues. Not partisan politics, but a question the United States? And this question record I can confirm that no tele- of due process. was asked, I think very poignantly, by He’s just about 8 hours away from having prompter was in front of the desk of the 5th longest filibuster. the Senator from Texas today, trying the Senator from Kentucky. I apologize to the Senator from Ken- to get an answer from the Attorney Sen Rand Paul, Jimmy Stewart would be General on this question: Can you kill proud, sir. tucky if that is less than encouraging. Americans on American soil who are Sen Rand Paul, look what’s trending. Stand with Rand. not involved in combat? The answer Stand with Rand. I have a renewed sense of hope for our lead- has been evasive because he has It’s been awhile since I could say I am a ers in Washington today. Thank you, Sen brought up basically a red herring: proud American. Thank you, Rand Paul. Rand Paul, for standing by We The People. Stand with Rand. Stand with Rand. Pearl Harbor or the Twin Towers, Rand Paul might be waiting a long time I am a strong liberal supporter and two which none of us are disputing that the for an answer from The White House. Stand time Obama voter. I Stand with Rand. military can respond to a lethal attack with Rand. Dr. Rand Paul, Excellent, excellent work with lethal force. I would note that it has been 10 today. We stand with Rand, too. So what I would like to do without hours, so that would indeed be a cor- I hope Sen Rand Paul Can keep them up all night. There hasn’t been a real filibuster on relinquishing the floor is see if the Sen- rect observation of fact. ator from Texas would like to respond the Senate floor in years. Stand with Rand. Democrats—Why not just agree that the And I would note, as I was walking as to his interpretation of what he was POTUS cannot use drones to summarily kill hearing from Attorney General Holder US citizens on US soil? Stand with Rand. in, that this is certainly the least well- and whether the comments he was Sen. Rand Paul crosses 8 hr threshold of shaven I have been on the Senate floor. hearing—if Attorney General Holder filibuster. Stand with Rand. And it is particularly ironic that the were willing to sort of try to complete Stand with Rand, please. desk at which I am standing, in addi- Sen Rand Paul did not filibuster for the that conversation in a letter to us— tion to having been the former desk of right or the left, he did it for every person in a great hero of mine, Senator Barry whether actually we might get close to this country. Stand with Rand. actually being on the same page. Once you give up your rights, you will not Goldwater, was also the former desk of Mr. CRUZ. I thank the Senator from get them back. Believe that. Stand with Senator Richard Nixon. So perhaps Kentucky for allowing me to ask him a Rand. that spirit is animating the 5 o’clock series of questions and to address both We should all go to the U.S. Capitol and shadow that I find myself at 10 o’clock what the Attorney General said and Stand with Rand. at night sporting. the substantive issue. I would note that quite a few Mem- Stand with u I do. Stand with Rand. I wish to begin my questioning, bers of the House of Representatives I wonder if that one was from Dr. though, with simply an observation. I have crossed over the Capitol and Seuss. joined us precisely to stand with Rand, would like to take a moment to thank Stand with Rand because you have the the Senator from Kentucky. I have had as have the men and women in the gal- freedom to do so. the privilege of serving in this body 9 lery who have been here throughout Obama is going to have to address the weeks, and today is the first day I have this long and historic stand. points raised by Paul. Stand with Rand. ever had the extraordinary privilege of Finally able to sit and watch the Rand I stand with Rand . . . best line of the speaking on the floor of the Senate. On Paul filibuster. Just epic. Stand with Rand. filiblizzard thus far. RT— Read the constitution and explain why Yet another of Senator Rand Paul’s mirac- my first time to speak on the floor of each sentence is relevant to today. Not ulous tweets that he did from the floor of the the Senate, I found myself being given worthless and outdated. Senate, a tweet of Senator Rand Paul— the chance to read from Travis’s letter 7 hours and counting for Sen Rand Paul in ‘‘They shouldn’t just drop a hellfire missile from the Alamo. As I observed walking the filibuster. This can end, Brennan, just on your cafe experience.’’

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00076 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1213 I would suggest to the Senator from The first question I will ask of the standing for, is liberty. I think that Kentucky that at the end of what I am Senator from Kentucky—and I have has always been the foundational value sure will be a long and very distin- several more—is simply: What would in the United States of America. guished career in politics, fighting for you say to these millions of Americans Our country was founded by Framers every American, that with statements and people worldwide who are coming who understood that concentrated such as that, a subsequent career at together to stand with Rand? power is always inimical to liberty, Starbucks may indeed be promising. Mr. PAUL. Mr. President, I thank the that any time great power is undivided The fight for liberty has a real hero. May Senator from Texas for coming to the the freedom of the people is at jeop- the spirits of past patriots fuel you. floor. I am overwhelmed with all the ardy. As Lord Acton observed: Power Until you get an answer, Rand, keep on responses. What I would say is that I tends to corrupt, and absolute power going. Let’s take it into tomorrow. think there are things that are more corrupts absolutely. It is for that rea- Is suspicion enough? Obviously not. Sen important than personalities, more im- son that the Framers of our Constitu- Rand Paul. portant than party, and they are the tion did what the Supreme Court has If you have family or friends in the Middle East, you might be a terrorist. Stand with things our country was founded upon. described as splitting the atom of sov- Rand. These are the things that bring peo- ereignty, taking what used to be one For the first time since November, I feel ple together who want us to stand and discrete indispensable concept of power like I see a light at the end of the tunnel. It say these protections will exist. The in- and sovereignty and breaking it up, is a long tunnel. Stand with Rand. teresting thing about our Constitution breaking it up between the three Sen Rand Paul: If you have no bounds, you is it protects people who are—those branches of the Federal Government have an unlimited imperial presidency. So who are defenseless often, those who and breaking it up between the Federal true. can be falsely accused of crimes is what Government and the 50 States and the Sen Rand Paul, eight hours, and still going the Constitution is there for. I think strong. Thanks for standing for the Constitu- local government as well. tion. God bless you. Stand with Rand. there are people from all walks of life The purpose of doing all that is to Thank you, Rand Paul, for standing up for who say my brother was falsely ac- prevent what James Madison in Fed- our Constitution. We are behind you. Stand cused or my brother was put in jail for eralist No. 10 described as factions. with Rand. 5 years or something, either they did Today we would call them special in- Go get ’em, Rand Paul. Great way to end not do it or it was an inappropriate terests that might take control of one my birthday. Stand with Rand. sentence. branch of government. If all power I hope we do not make it to that indi- I think people understand the idea of were concentrated in the Executive, vidual’s next birthday. wanting to be protected from false ac- and one faction, one special interest Best TV I’ve seen in a while. Stand with cusation, not only for something where was to gain influence in that Execu- Rand. you might be put in prison but for tive, then the liberty of the people Sen Rand Paul, I’m superproud of my Sen- something, in this case, you might be would be at peril. ator today. I have always been proud of him, killed for. We all understand. All you In Federalist 10, Madison explained but today I’m more proud than ever. STAND have to do is get online to read com- the factions are never going to go WITH RAND. ments to any kind of story online to away. Human nature is such that we My kids—watching Rand Paul give a lesson to the country—on their own, without me know people make all kinds of wild ac- will divide into factions with different telling them to. Stand with Rand. Thank cusations and wild comments online. interests. The genius of the Framers you, Sen Rand Paul. Do we want to have that be one of the was not to imagine human nature was Why won’t Obama say that he won’t use indications for whether you might be somehow different than it was but to drones to kill noncombatant U.S. citizens on targeted for surveillance or whether recognize that it was. As the Federalist U.S. soil? Seems a simple question. Stand you might be targeted for a drone Papers explained: If men were angels, with Rand. strike, that anything such as this could no government would be necessary. Senator Rand Paul, thank you. Be encour- aged and stay strong. Would stand there with happen without you having your due The great challenge in forming a gov- you if we could. We are no longer free. Thank process, that the fifth amendment ernment is to enable the governed to you for standing up for freedom. somehow would be optional, that the do what it must. Yet at the same time ‘‘Stand with Rand’’ is trending executive branch would decide when oblige it to govern itself. For that reason, splitting the atom worldwide. That is pretty darn cool. they are going to apply the fifth amendment. of sovereignty, separating power pre- Rand Paul goes into his 9th hour of fili- I am overwhelmed with the re- vents any one branch of government buster over drones. Watch it here. sponses. I think it is something that from acquiring unchecked power. It is, I will not read the link to C–SPAN. unifies people. It has brought together indeed, the responsibility of this body Senator Rand Paul, I am so proud of you. both people from the Democratic side to do what we are doing now. If a Presi- Way to stand tall. Stand with Rand. of the aisle as well as the Republican dent of the United States decrees the Senator Rand Paul, your loyalty and dedi- side of the aisle because, to me, this is power to take the lives of U.S. citizens cation to we the people are not going unno- ticed. Stand with Rand. not about whether the President is a on U.S. soil without due process of law, If you give back your rights, don’t ever ex- Republican or Democrat. I have sup- I would suggest it is integral to the pect to get them back. Stand with Rand. ported several of his nominees. I have oath of office of every Member of the Call the White House. 202–456–1111. Take a supported people because I think he Senate and every Member of the House stand. has the right to make political nomi- of Representatives to stand and say: For some reason, I feel compelled to nations, even though I do not agree Mr. President, respectfully, no, you read that tweet a second time. with much of any of the nominees or may not. The Constitution gives you Call the White House. 202–456–1111. the politics of the administration. no such power. Each of us on entering Rand Paul, standing for liberty and free- This is different. There is a constitu- office—in my case just a few weeks ago dom. God bless you. Stand with Rand. tional principle. We are here today to standing on those steps, the Vice Presi- Rand Paul, the 21st century version of filibuster against or for a constitu- dent asked me to raise my hand and Washington, Jefferson and Madison. tional principle not necessarily an in- take an oath to honor and defend the No matter how you fall politically, you dividual. But it is something I think a Constitution. Every Member of this have to admire Rand Paul’s absolute convic- lot of Americans believe strongly in. I tion. body took that oath. I cannot stop watching Senator Rand Paul thank Senator CRUZ very much for the It is our responsibility, especially filibuster. Greatness. Stand with Rand. comments I have gotten from the Sen- when one branch of the government is Are you going to retweet Stand with Rand ator and I would entertain any other overreaching, is usurping power that all night? I am. Liberty. Rand Paul. questions. the Constitution forbids him and that And the final one. Mr. CRUZ. Mr. President, I thank the is threatening to the liberty of the peo- Senator Rand Paul, I am a grandma who Senator from Kentucky. I do indeed ple, it is the responsibility of all of us just learned how to Twitter tonight so that have additional questions. The heart of to stand and resist that. I could stand with Rand and the Constitu- what the Senator is standing for, what One of my alltime heroes, Ayn Rand tion. some of the other Senators tonight are in ‘‘Atlas Shrugged,’’ described how the

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00077 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1214 CONGRESSIONAL RECORD — SENATE March 6, 2013 parasitical class would put into place that practice will integrate the dispersed For the best hope I have. O, do not wish one arbitrary power, standardless rules pre- power into a workable government. It en- more. cisely so the productive citizens in the joins upon its branches separateness but Rather proclaim it, Westmoreland, through private sector would have to come on interdependence, autonomy but reciprocity. my host, Presidential powers are not fixed but fluc- That he which hath no stomach to this fight, bended knee to those in government tuate, depending on their disjunction or con- Let him depart; his passport shall be made, seeking special dispensation, seeking junction with those of Congress. And crowns for convoy put into his purse. special favors, because that arbitrary When a President acts pursuant to an ex- We would not die in that man’s company and standardless rule empowers the po- press or implied authorization of Congress, That fears his fellowship to die with us. litical class and disempowers the peo- his authority is at its maximum, for it in- This day is call’d the feast of Crispian. ple. cludes all that he possesses in his own right He that outlives this day, and comes safe I could not help but think about Ayn plus all that Congress can delegate. home, Rand’s observation this morning as I Justice Jackson explains: Will stand a tip-toe when this day is nam’d, heard the Attorney General over and No. 2: When the President acts in absence And rouse him at the name of Crispian. over refuse to say it would be unconsti- of either a congressional branch or denial of He that shall live this day, and see old age, Will yearly on the vigil feast his neighbours, tutional for the Federal Government to authority, he can only rely upon his own independent powers, but there is a zone of And say ‘‘To-morrow is Saint Crispian.’’ kill a U.S. citizen on U.S. soil. He twilight in which he and Congress may have Then he will strip his sleeve and show his would say it would be inappropriate. concurrent authority, or in which the dis- scars, He said that three times in response to tribution is uncertain. Therefore, congres- And say ‘‘These wounds I had on Crispian’s direct questioning. It would be inappro- sional inertia, indifference or quiescence day.’’ priate and we should trust him. The may sometimes, at least, as a practical mat- Old men forget; yet all shall be forgot, Federal Government would not do so. ter, enable, if not invite, measures on inde- But he’ll remember, with advantages, I found myself thinking of those arbi- pendent Presidential responsibility. In this What feats he did that day. Then shall our trary standards Ayn Rand talked area, any actual test of power is likely to de- names, about; that if the only protection we pend upon the imperatives of events and con- Familiar in his mouth as household words— temporary imponderables, rather than on ab- Harry the King, Bedford and Exeter, the people have against the Federal stract theories of law. Warwick and Talbot, Salisbury and Glouces- Government choosing to take the life Now, perhaps, prior to 11:45 today, ter— of a U.S. citizen on U.S. soil is our Eric Holder and John Brennan would Be in their flowing cups freshly remembered. trust that they would refrain from This story shall the good man teach his son; have argued they fall into this second doing what is inappropriate rather And Crispin Crispian shall ne’er go by, category, a category where Congress than the protections of the Constitu- From this day to the ending of the world, has been silent and, accordingly, they tion, then I would suggest our liberty But we in it shall be remembered— might presume some Presidential is fragile indeed. We few, we happy few, we band of brothers; Indeed, when we think about the con- power. But as of 11:45 today, they can For he to-day that sheds his blood with me Shall be my brother; be he ne’er so vile, centration of power, no judicial opinion no longer claim that. Justice Jackson explained the third This day shall gentle his condition. is more important than Justice Robert category of Presidential powers. And gentlemen in England now-a-bed Jackson’s concurring opinion in the When the President takes measures incom- Shall think themselves accurs’d they were Youngstown Steel seizure case. Justice patible with the expressed or implied will of not here, Jackson, as the Senator from Ken- Congress, his power is at its lowest ebb, for And hold their manhoods cheap whiles any tucky knows, was a giant on the U.S. then he can rely only upon his own constitu- speaks Supreme Court. My former boss, Chief tional powers minus any constitutional pow- That fought with us upon St. Crispin’s day. Justice William Rhenquist, served as a ers of Congress over the matter. Courts can I would observe to the Senator from law clerk to Justice Robert Jackson. sustain executive presidential control in Kentucky that those glorious senti- Indeed, Justice Jackson took time off such a case only by disabling the Congress ments expressed centuries ago are pre- from serving on the U.S. Supreme from acting upon the subject. Presidential cisely applicable to the stand here to- Court to serve as the chief prosecutor claim to a power at once so conclusive and preclusive must be scrutinized with caution, night because it is a stand against, in- at the Nuremberg trials, during which for what is at stake is the equilibrium estab- deed it is a stand against an adminis- he made the powerful observation fol- lished by our constitutional system. tration that refuses to acknowledge lowing World War II, when the United As we stand here tonight, later than limits on its power. It is a stand for the States brought to trial the horrific war the typical hour for the Senate being same purpose, for liberty. criminals in the Nazi regime. in session, indeed, later than many There is a frustration across this Justice Jackson observed at Nurem- Members of this body had anticipated country, a frustration not with Demo- berg that four great nations, flushed being in Washington, DC—many Mem- crats or Republicans, not with one with victory and stunned with injury, bers of this body had envisioned being party or another, a frustration with en- stay the hand of vengeance and volun- on planes and returning home by now— trenched politicians in Washington tarily submit their captive enemies to it occurs to me that those Senators who don’t seem to work for anybody. the judgment of the law, is one of the I am convinced there is something most significant tributes that power who have heeded the encouragement of credible happening in this country has ever paid to reason. the twitterers to stand with RAND, I would suggest to the Senator from those Senators who have come here when the people are standing and re- Kentucky, and I feel confident he today, I am reminded of Henry the minding the men and women of this would agree, that what we are talking Fifth, as Shakespeare observed: body that every one of us works for about right now is the tribute that What’s he that wishes so? ‘‘we the people.’’ It is our principal power must and should pay to reason My cousin Westmoreland? No, my fair cous- task to stand and defend liberty, espe- and that unchecked power is always a in; cially when liberty is threatened. If we are mark’d to die, we are enow Indeed, that St. Crispin’s Day speech threat to liberty. To do our country loss; and if to live, As Justice Jackson opined in had a saying—and even in some ways a The fewer men, the greater share of honour. different manifestation. In one of the Youngstown Steel seizure ‘‘that com- God’s will. I pray thee, wish not one man prehensive and undefined Presidential more. greatest movies of all time, Patton, the powers hold both practical advantages By Jove, I am not covetous for gold, opening scene of Patton, I will confess and grave dangers for the country will Nor care I who doth feed upon my cost; to the Senator of Kentucky I have impress anyone who has served as a It yearns me not if men my garments wear; more than once in preparation for an legal adviser to a President in a time of Such outward things dwell not in my desires. oral argument in court simply watched transition and public anxiety.’’ But if it be a sin to covet honor, George C. Scott marching out in front Those words could have been written I am the most offending soul alive. of a flag the size of North Dakota. No, faith, my coz, wish not a man from Eng- Standing in front of the flag, General as easily tonight as they were half a land. century ago. Justice Jackson contin- God’s peace. I would not lose so great an Patton observed in a tribute to that ued: honour very same speech I just read—I am While the Constitution diffuses power to As one man more methinks would share from going to modify it slightly to make it better secure liberty, it also contemplates me PG.

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00078 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1215 I want you to remember that no ‘‘fellow’’ tion of power by a President regardless gued on behalf of the State of Texas ever won a war by dying for his country. He of whether we share his party or not. that the President of the United States won it by making the other poor ‘‘fellow’’ die Indeed, I would note to the Senator has no authority to give away U.S. sov- for his country. from Kentucky this is a scenario which ereignty. Men, all this stuff you’ve heard about America not wanting to fight, wanting to is not entirely hypothetical. Prior to That was done notwithstanding the stay out of the war is a lot of horse dung. serving in this body, I had the great fact that he was a Republican, notwith- Americans traditionally love to fight. All privilege of serving my home State of standing the fact the President was the real Americans love the sting of battle. Texas as the solicitor general of Texas. former Governor of my home State of When you were kids you all admired the During that time, we faced a tragic and Texas. Because at the end of the day, champion marble shooter, the fastest runner, epic battle in a case called Medellin v. defending liberty, defending sov- big-league ball players, the toughest boxers. Texas. ereignty, defending the Constitution is Americans love a winner and will not tol- Medellin began with a crime that not a partisan choice. It is not a game erate a loser. shocked the conscience. Two little Americans play to win all the time. I of dodge ball with shirts and skins; wouldn’t give a hoot in hell for a man who girls were horrifically abused and mur- that if your team happens to have the lost and laughed. That’s why Americans dered by a gang in Houston. They were ball, you stick together. Every one of have never lost and will never lose a war be- apprehended, confessed, and they were us has taken an oath of office and we cause the very thought of losing is hateful to convicted by a jury of their peers, quite have an obligation to stand up. Americans. rightly. So I stood before the U.S. Supreme George C. Scott continues as Patton: At that point, the case took a very Court representing the State of Texas Now there’s another thing I want you to strange turn because the World Court, and arguing that no President of the remember. I don’t want to get any messages which is the judicial arm of the United United States, be he Republican or saying we are ‘‘holding our position.’’ We’re Nations, issued an order to the United Democrat, has the authority to give up not ‘‘holding’’ anything. Let the Hun do States to reopen the convictions of 51 U.S. sovereignty and make the State that. We’re advancing constantly. We’re not murderers across this country, includ- courts subject to the World Court. interested in holding on to anything except ing one of the murderers in this case, I would note in that case the State of the enemy. We’re going to hold on to him by Jose Ernesto Medellin. Texas had support from a number of the nose and kick him in the ‘‘posterior.’’ I will tell you, Jose Medellin wrote a unlikely sources. Indeed, we had a wide We’re going to kick the ‘‘heck’’ out of him all the time and we’re going to go through four-page handwritten confession in range of amicae—friends of the court— him like crap through a goose. that case. It is one of the most chilling who came in and supported us. One Thirty years from now when you’re sitting documents I ever had the displeasure of brief was filed on behalf of law profes- around your fireside with your grandson on reading. In it he bragged about hearing sors. It was joined by several law pro- your knee and he asks you, ‘‘What did you do those little girls beg for their lives. A fessors, one of whom, John Yoo, is in the great World War II?’’ You won’t have tiny detail he included in those letters widely considered the law professor to say, ‘‘Well, I shoveled ’manure’ in Lou- was in many ways the most haunting, with the most expansive view of Presi- isiana.’’ and I know it will remain with me for dential authority. And, indeed, he was That same sentiment, the same sen- the rest of my life. He described how an individual who served in the Justice timent in St. Crispin’s Day speech, the youngest of those girls was wearing Department and had advocated under talked about a tradition that has been a Mickey Mouse watch and how he President Bush an expansive view of a tradition in America for centuries, of kept it as a trophy of that night be- Presidential authority. men and women rallying against hard cause he was so proud of the atrocities That very same brief was joined by odds, rallying against challenging ob- they had committed. It is truly sick- Erwin Chemerinsky, the dean of the stacles. ening what those young boys did that University of California at Irvine (Ms. HEITKAMP assumed the chair.) evening. And yet the World Court as- School of Law. Dean Chemerinsky is a I would observe that fight should not serted a power that heretofore has very well-known and proud liberal aca- be a partisan fight. This is not a ques- never been asserted. It was the first demic. I suspect it may well be right tion of Republican or Democrat, lib- time in history a foreign court has ever that this is the only time ever that erty, the right to life of every Amer- tried to bind the U.S. justice system. John Yoo and Erwin Chemerinsky ican citizen. Arbitrary taking at the The World Court claimed the authority joined a single brief before the U.S. Su- hands of the Federal Government to reopen those convictions, so Texas preme Court. And both agreed, despite should not simply be a value that one stood up and fought the World Court. the fact they come from very different side or another of this Chamber em- I had the honor of arguing this case places in the legal academy, that un- braces. twice in front of the U.S. Supreme checked power in the hand of the exec- Indeed, I would note during the hear- Court. On the other side, 90 foreign na- utive is fundamentally a threat to lib- ings this morning with Eric Holder, tions came in against the State of erty. some of the most enthusiastic audience Texas—90 nations came in and argued Indeed, I would note for the Senator participants in that hearing were self- the U.S. justice system should be com- from Kentucky, in talking to both of identified members of Code Pink, who I pletely subject to the authority of the them and asking for their support in would suggest are not ordinarily indi- World Court and the United Nations. Medellin, I made the point to each to viduals who would be described as card- Also on the other side, most disturb- imagine a President from the other carrying members of the Republican ingly, was the President of the United side who might have the power that Party. States. The President signed a two- was being asserted. But liberty does not have a partisan paragraph order that attempted to To the friends of mine on the right, I affiliation. Indeed, to the Senator from order the State courts to obey the suggested that if a President had the Kentucky, I think it is an interesting World Court. Again, that order, like power to set aside State laws on question what the reaction in this the World Court’s order, was unprece- grounds of international comity, which Chamber and outside would be if the dented. It was the first time in history was the basis that was being asserted very same statements that have been any President had ever attempted to in that case—without any sanction made were made by a President who order the State courts to do anything. from Congress, without any sanction happened to be Republican. I think Unfortunately, the President at issue from another branch of the Federal there is little doubt the outcry would in that case was a Republican. It was Government, but simply on his own be deafening, and rightly so. I will say President George W. Bush, a man for unilateral authority—an activist Presi- to the Senator from Kentucky, if a whom I worked, a man who, in many dent on the left could use that power to President made the identical represen- respects, I respect. Yet in that case, he assert, for example, that in his or her tations and happened to have an ‘‘R’’ asserted a power that could be found judgment the marriage laws of all 50 behind his or her name, I have not one nowhere in the Constitution. And in States should be set aside. shadow of a doubt that the Senator consultation with my boss at the time, It may well be that all 50 States will from Kentucky would be standing here Attorney General Greg Abbott, I went choose to set their marriage laws aside. 10 hours protesting the arbitrary asser- before the U.S. Supreme Court and ar- That is a judgment right now that has

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00079 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1216 CONGRESSIONAL RECORD — SENATE March 6, 2013 been in the hands of the voters in each the World Court has no authority I will remind you this speech was State. But regardless of what the 50 whatsoever to bind the U.S. justice sys- given in 1964, not last week. States decide—and I suspect they will tem; and No. 2, the President has no and now our national debt is one and a half not decide the same thing—it seems to authority under the Constitution to times bigger than all the combined debts of me clear that no President has the au- give away our sovereignty. all the nations of the world. We have $15 bil- thority unilaterally, with the flick of a I would suggest that is the way our lion in gold in our treasury; we don’t own an finger, to remove laws from the State system is supposed to work; that all of ounce. Foreign dollar claims are $27.3 billion. books of all 50 States. us, regardless of party, should be And we’ve just announced that the dollar of Likewise, to my friends on the left, I standing together for liberty. And 1939 will now purchase 45 cents of its total asked them to envision their night- when I think of standing for liberty, value. mare of a rightwing President. They some of the frustration people have Again, a scenario with which we are each had slightly different incarna- across this country is they feel it quite familiar. tions, but they all managed to do that. doesn’t do any good. It doesn’t make a And I said: If this assertion of power is difference who they vote for. Whoever As for the peace that we would preserve, I correct, that any President can set they vote for, they go to Washington wonder who among us would like to ap- aside any State law if he or she deems and keep spending money, and spend- proach the wife or mother whose husband or it inconsistent with international com- ing more money, and more money, and son has died in South Vietnam and ask them ity, even though no treaty requires if they think this is a peace that should be more money, and the debt goes up and maintained indefinitely. Do they mean peace this—and, indeed, in Medellin the Jus- up and up, and the Federal laws get or do they mean we just want to be left in tice Department maintained no treaty bigger and bigger and bigger and big- peace? There can be no real peace while one required this, this was simply a power ger, and the Federal regulations get American is dying someplace in the world for that was being asserted to further com- more and more and more, and nothing the rest of us. We’re at war with the most ity, to further our relationships with seems to change. And I understand dangerous enemy that has ever faced man- foreign nations—I suggested if the that frustration. It is a real frustra- kind in his long climb from the swamp to the President has that power, what is to tion. It is a frustration I share, and I stars, and it’s been said if we lose that war, stop a President on the right from say- know it is a frustration the Senator and in doing so lose this way of freedom of ing: I am setting aside the punitive from Kentucky shares. ours, history will record with the greatest damages laws in all 50 States? It upsets I would suggest that part of the im- astonishment that those who had the most port of tonight is that the Senator to lose did the least to prevent its hap- comity when foreign companies are pening. Well, I think it’s time we ask our- subject to punitive damages awards; from Kentucky is standing with mil- selves if we still know the freedoms that therefore, tort reform shall be the law lions of Americans who are frustrated were intended for us by the Founding Fa- of all 50 States. by politicians in Washington who are thers. And for that matter, there are States unwilling to rock the boat, who are un- such as California that persist in put- willing to stand for change. I am re- This next section is a section par- ting in place incredibly restrictive en- minded that change can sometimes ticularly dear to my heart. It was vironmental laws. If the President has seem hopeless. Indeed, I mentioned given before I was born. the authority to flick aside State laws, that the desk I am standing at was pre- Not too long ago, two friends of mine were what would prevent a President on the viously occupied by Barry Goldwater. I talking to a Cuban refugee, a businessman right from saying those environmental have yet to acquire, but I intend to ac- who had escaped from Castro, and in the laws are no more? quire, a leather-bound copy of ‘‘Con- midst of his story one of my friends turned I would note for the Senator from science of a Conservative,’’ which I in- to the other and said, ‘‘We don’t know how Kentucky that my view on all those tend to keep in this desk. lucky we are.’’ And the Cuban stopped and questions was very clear and very When Barry Goldwater became a na- said, ‘‘How lucky you are? I had someplace straightforward. No President may do tional leader, it was thought impos- to escape to.’’ And in that sentence he told us the entire story. so, whether he or she is of the right or sible for his views to receive a wide au- of the left. If the Federal Government dience. The views that were in the as- Turning and seeing the junior Sen- is to set aside a State law, it may do so cendancy were the views of the left; ator from Florida, I know he and I both only through exercise of the supremacy that government control of the econ- know, as I hope every Member of this clause. The Framers required that in omy, of our lives, was the proper and body knows, just how precious and order to set aside a State law that had right direction for our Nation. fragile the freedom is that we enjoy in been adopted by the democratically I am reminded of someone else, as this country. the Senator from Kentucky knows, elected legislature in the State, that As President Reagan continued in who gave a speech on October 27, 1964. two branches had to work together in that speech: concert, either through legislation that He said the following: passes the House of Representatives, I have spent most of my life as a Demo- If we lose freedom here, there’s no place to passes the U.S. Senate and is signed crat. I recently have seen fit to follow an- escape to. This is the last stand on Earth. into law by the President or through other course. I believe that the issues con- fronting us cross party lines. Now, one side This idea that government is be- the form of a treaty that is signed by in this campaign— holden to the people, that it has no the President and ratified by two- And here he is referring to the cam- other source of power except the sov- thirds of the U.S. Senate. But in both paign in 1964 for President. ereign people, is still the newest and instances the Framers required two —has been telling us that the issues of this most unique idea in all the long his- branches to work together. election are the maintenance of peace and tory of man’s relation to man. This is Why? The same reason we discussed prosperity. The line has been used, ‘‘We’ve the issue of this election: whether we before. The reason from Federalist 10, never had it so good.’’ believe in our capacity for self-govern- that you do not want power unified in But I have an uncomfortable feeling that ment or whether we abandon the Amer- one branch of government, where a fac- this prosperity isn’t something on which we ican revolution and confess that a lit- tion, a special interest, may seize con- can base our hopes for the future. No nation tle intellectual elite in a far distant trol of it. You want it divided. in history has ever survived a tax burden I will note that it was an unusual po- that reached a third of its national income. capitol can plan our lives for us better sition for the State of Texas to appear Today, 37 cents out of every dollar earned in than we can plan them ourselves. this country is the tax collector’s share, before the U.S. Supreme Court and Ah, those were the days. You and I are increasingly told that we argue that an action by a Republican have to choose between a left or right. I and yet our government continues to spend would like to suggest there is no such thing President and former Governor of the $17 million a day more than the government as left or right. There is only up or down— State of Texas was unconstitutional. takes in. [Up] man’s old-age dream, the ultimate in Yes, I can tell you I was very proud to Would that we could say today the have the opportunity to do just that, individual freedom consistent with law and government spends only $17 million a order, or down, to the ant heap of totali- and I was even more proud when the day more than it takes in. tarianism. Regardless of their sincerity, Supreme Court of the United States We haven’t balanced our budget in 28 out their humanitarian motives, those who ruled by a vote of 6 to 3 in favor of the of the last 34 years. We’ve raised our debt would trade freedom for security have em- State of Texas, concluding, No. 1, that limit three times in the last 12 months, barked on this downward course.

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00080 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1217 Given the topic of this discussion, move to the end where President ernment that remains a limited gov- the asserted power of the President to Reagan continued and said: ernment of enumerated powers that take the life of a U.S. citizen on U.S. Those who would trade our freedom for the protects the God-given rights each of soil without due process of law, that soup kitchen of the welfare state have told us is blessed to have. last portion bears reading again. us they have a utopian solution of peace The question I ask: What in the Sen- ‘‘Those who would trade our freedom without victory. They call their policy ‘‘ac- ator’s judgment is America without for security have embarked on this commodation.’’ And they say if we will only liberty? Who are we, if we are not a downward course to the ant heap of to- avoid any direct confrontation with the free people? enemy, he will forget his evil ways and learn talitarianism.’’ to love us. . . . We cannot buy our security, Mr. PAUL. Mr. President, I thank the In this vote-harvesting time, they our freedom from the threat of the bomb by Senator from Texas for his remarks. I use terms like the ‘‘Great Society,’’ or committing an immorality so great as say- think he has hit it exactly on the head. as we were told a few days ago by the ing to a billion human beings now enslaved The question is a very pertinent ques- President, we must accept a greater behind the Iron Curtain, ‘‘Give up your tion. The question is really where do government activity in the affairs of dreams of freedom because to save your we go from here. the people. But they’ve been a little skins we are making a deal with your slave I see this as a struggle. I see that we more explicit in the past and among masters.’’ Alexander Hamilton said, ‘‘A na- are engaged in an epic struggle, but it themselves; and all of the things I now tion which can prefer disgrace to danger is is not a struggle between Republicans prepared for a master, and deserves one.’’ will quote have appeared in print. Let’s set the record straight. There is no ar- and Democrats; it is a struggle between These are not Republican accusations. gument over the choice between peace and the President and the Constitution. For example, they have voices that war, but there is only one guaranteed way The question is, Does the President say, ‘‘The cold war will end through you can have peace—and you can have it in have the power and the prerogative to our acceptance of a not undemocratic the next second—surrender. have his way regardless of the Con- socialism.’’ Another voice says, ‘‘The Admittedly there’s a risk in any course we stitution? profit motive has become outmoded. It follow other than this, but every lesson of The question is, Does the Attorney must be replaced by the incentives of history tells us the greater risk lies in ap- General get to say that he will adhere peasement, and this is the specter that we the welfare state.’’ Or, ‘‘Our traditional face. You and I know and do not believe that to the fifth amendment when he choos- system of individual freedom is incapa- life is so dear and peace so sweet as to be es to? Is there a choice for American ble of solving the complex problems of purchased at the price of chains and slavery. citizens on American soil that they ei- the 20th century.’’ Senator Fullbright If nothing in life is worth dying for, when did ther get the fifth amendment protec- has said at Stanford University that this begin? tions or they don’t get the fifth amend- the Constitution is outmoded. He re- You and I have the courage to say to our ment protections? This really is a ferred to the President as ‘‘our moral enemies. ‘‘There is a price we will not pay. struggle not only between the Presi- teacher and our leader,’’ and he says he There is a point beyond which they must not dent and the Constitution but between advance.’’ And this, this is the meaning in is ‘‘hobbled in his task by the restric- the phrase of Barry Goldwater’s ‘‘peace the Senate and the Congress and the tions of power imposed on him by this through strength.’’ President, to say whether the Presi- antiquated document.’’ He must ‘‘be Winston Churchill said, ‘‘The destiny of dent gets to determine this policy or freed,’’ so that he ‘‘can do for us’’ what man is not measured by material computa- whether this is a policy that should he knows ‘‘is best.’’ And Senator Clark tions. When great forces are on the move in come from Congress. of Pennsylvania, another articulate the world we learn we are spirits—not ani- I think we should be asking not just spokesman, defines liberalism as mals. And he said, ‘‘There is something for the President to give his memos on ‘‘meeting the material needs of the going on in time and space, and beyond time drones, we should be giving him our and space which, whether we like it or not, masses through the full power of cen- spells duty.’’ memos on drones. We need to be dic- tralized government.’’ You and I have a rendezvous with destiny. tating the law to the President and not Well, I, for one, resent it when a rep- We will preserve for our children this, the acquiescing and giving the President resentative of the people refers to you last best hope of man on Earth or we will this authority. This should be a battle and me, the free men and women of sentence them to take the last step into 1000 between the executive and the legisla- this country, as ‘‘the masses.’’ This is a years of darkness. tive. It should involve Republicans and term we haven’t applied to ourselves in We will keep in mind and remember that Democrats trying to restrain the Presi- America. But beyond that, ‘‘the full Barry Goldwater has faith in us, he has faith dent from saying that he has the abil- that you and I have the ability and the dig- power of centralized government’’— nity and the right to make our own decisions ity to decide when you get fifth amend- this was the very thing the Founding and to determine our own destiny. ment protections and when you do not. Fathers sought to minimize. They That path, the path of standing and fight- At this time, I, without yielding the knew that governments don’t control ing for freedom, even when it seems floor, would like to entertain a ques- things. A government can’t control the daunting, even when it seems the gestalt of tion from the Senator from Florida. economy without controlling people. the moment is on the other side, is a path The PRESIDING OFFICER (Mr. And they know when a government with many honorable forebears. SCHATZ). The Senator from Florida. sets out to do that, it must use force I can tell you, speaking and echoing Mr. RUBIO. Mr. President, let me and coercion to achieve its purpose. the sentiment of the millions on twit- congratulate the junior Senator from They also knew, those Founding Fa- ter, of the people following this stand Texas on a fantastic question. In that thers, that outside of its legitimate for principle tonight, if the 100 Sen- question he used Shakespeare ref- functions, government does nothing as ators in this body stand together and erences; he used references to the well or as economically as the private say regardless of party, liberty will al- movie ‘‘Patton.’’ I didn’t bring my sector of the economy. ways prevail; regardless of party, the Shakespeare book, so let me just begin Now, we have no better example of Constitution is the governing body, the by quoting a modern-day poet. His this than government’s involvement in governing document in this Nation, name is Wiz Khalifa, called ‘‘Work the farm economy over the last 30 then we will be doing our jobs. Hard Play Hard.’’ That is how it starts. years. Since 1955, the cost of this pro- I commend Senator PAUL for a lonely If you look at time, I think it is a gram has nearly doubled. One-fourth of stand that, as the night has worn on, time when many of our colleagues also farming in America is responsible for has not proven quite so lonely. Indeed, expected to be back in the home State 85 percent of the farm surplus. Three- were he the only Senator standing at playing hard, but we are happy we are fourths of farming is out on the free his desk this evening, it would not be still here working hard on this issue. It market and has known a 21 percent in- lonely in that circumstance either be- is actually pretty stunning. If you crease in the per capita consumption of cause he would be standing shoulder to watch from home you hear the audi- all its produce. shoulder with millions of Americans ence of people watching on the news or I am going to skip further along, to who do not wish the Federal Govern- whatever, what is going on here. I the end of the speech which, I will con- ment to assert arbitrary power over think it is important to explain what fess, not unlike the speeches given on our lives, over our liberty, over our exactly is happening here. What is hap- this floor, was not a short speech. I will property, but who, instead, want a gov- pening is pretty straightforward.

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00081 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1218 CONGRESSIONAL RECORD — SENATE March 6, 2013 The Senator from Kentucky has If the President was George W. Bush It reminds me of another line from asked a question of the administration. and this was the question asked of him ‘‘The Godfather’’ when Michael turns It is a pretty straightforward question. and the response was the silence we to Fredo and says: Fredo, you are my Is it constitutional for the Federal have gotten, we would have a very dif- older brother, and I love you but don’t Government to kill a noncombatant ferent scenario tonight except I actu- ever take sides with anyone against citizen in the United States? We all ally believe the Senator from Ken- the family again. That is kind of what have strong feelings about that pro- tucky would make the exact same ar- is happening here. As an institution— gram. We all have strong feelings about guments he is now making on the floor. as the Senate—we have a right to those the war on terror. These are all legiti- I want everyone who is watching to answers. It doesn’t matter who the mate issues, but this is a very direct clearly understand—and if I am wrong, President is. We have a job to do that question that has been asked. the Senator from Kentucky is going to we are held responsible for and that we What would have resolved this hours correct me—that what he is asking is a are held accountable. ago, from my understanding—and if I simple, straightforward response or, if Thirty years from now, forty years am incorrect the Senator from Ken- we cannot get that, a simple and from now, twenty years from now, ten tucky will correct me in a moment— straightforward response from the years from now, these sorts of deci- my understanding is he has offered two Members of this body in a sense of the sions will have ramifications long after ways to bring this to a resolution. One Senate resolution vote. Both have been we are gone. All of us here will be gone is just a clear, unequivocal statement rejected. and there will be other people in these from the White House that says, of The last observation I would have to- chairs. Maybe it will be our children, course, it is unconstitutional. That is night is that there have been pretty grandchildren or great-grandchildren not going to happen. Unconstitutional. phenomenal legal analyses on the floor. who will visit this building, and they Just a straightforward statement of That reminds me of the most famous will read about the time we served quote from ‘‘The Godfather’’ that was that magnitude. here. If we make mistakes, history will I have been watching on television never actually used in the movie. I record those mistakes and hold us ac- don’t know how that happened. Maybe the last few hours. I saw the Senator countable for those mistakes. If things they cut it out. Here is the quote: ‘‘A from Kentucky say they have reached are happening today that set the lawyer with his briefcase can steal out to the White House. They have groundwork for future administra- more than a hundred men with guns.’’ been, I believe, unable to get a direct tions—because that is the other thing I don’t know how that is relevant to response. we need to remember. No matter how this, but I thought it was a very good The other is I heard he made a mo- anyone feels about the current Presi- quote. I thought I would bring it up be- tion to have a resolution heard that dent, he is not going to be President cause I went to law school. I am a law- made it clear that was the sense of this forever. The precedence he sets could yer. I was a land use and zoning attor- body. The sense of this body would be very well guide what future Presidents that this is unconstitutional. Again, ney, which meant if I wound up in the courtroom, something went horribly do. pretty straightforward. So the point is, if we are laying the wrong with the land use and zoning ap- Let’s just say there are those among groundwork and making mistakes by us who believe this is important. I plication. The point is we have had good argu- not asking certain questions, history don’t know anybody in this body who ments on the constitutional issues will hold us accountable for that and believes a noncombatant U.S. citizen in with regard to this, and I think those that is all of us. It is not one of us, not the United States who is not doing are important to discuss. I am glad so five of us, not the Republican part of anything of imminent danger should much time has been spent on those. It the Senate but all of us. We have a somehow be killed by the U.S. Govern- is important for the people at home to right to ask these questions and to get ment, nor do people at home believe fully understand the legal arguments these questions answered. That is not that either. It was the sense of the Sen- here because I think they are impor- being an obstructionist, that is not ate that this was the case, and in ex- tant. They go to the heart of our Con- being partisan, that is being a Senator. change for that vote, of course the vote stitution. They go to the heart of our I have only been here 2 years, but I on Mr. Brennan would move forward, civil liberties. They go to the heart of know enough of this process already to and that has been rejected. This the things that distinguish our Nation. know that when the majority changes doesn’t make a lot of sense to me. I think what is stunning to me— or when a new President is elected, at I actually went to a movie—one of clearly the constitutional issue is im- some point every single one of us is the great American movies, ‘‘The God- portant—is how simple and straight- going to want to have an answer from father’’—and there was a quote in that forward this issue is and how easily it the administration or some other movie. I don’t have the Patton quote, could have been resolved. I don’t know branch of government and they are but I have ‘‘The Godfather’’ quote, and how many hours we are into this now— going to hold us off. They are going to this is the best known one, ‘‘I’ll make I think it is about 11 hours and 15 min- give us the Heisman and stiff-arm us him an offer he can’t refuse.’’ To me utes—but we cannot get a straight- and not answer the question. I would these are straightforward offers they forward answer. The Members of this sure hope at that moment—whether can’t refuse. Yet they have been re- body deserve that. The Members of this you agree with that person or not— fused. I think that is stunning. body deserve an answer. It doesn’t mat- that you would stand and defend their The third thing I wish to say—I want ter what party you or the President is prerogative and right as a representa- you to imagine what this conversation in. This is an important question that tive of their State to get legitimate would be like tonight if the President is being asked. questions answered in a straight- was George W. Bush and if this issue All of this could be over if we get a forward way. was about George W. Bush. Just imag- straightforward answer. I think that is As I said earlier today when I came ine that for a moment now—if he had something every Member of this body to the floor, this issue is about this in- been asked this direct question and re- should care about. It is not a Repub- stitution as much as anything else. It fused to answer—what this Chamber lican question. It is not a conservative is about the right of every single Mem- would look like and what the argu- question. It is a constitutional ques- ber of this body to be able to ask legiti- ments being made would look like to- tion, a relevant question, and one that mate questions of the administration night. Imagine that for a moment. should be easy to answer. or other branches of government and to That takes me back to another mod- They are refusing to answer it for get a straightforward answer. ern day poet by the name of Jay-Z some reason. I don’t know if it is be- I guess the question I have for the from one of the songs he wrote: It’s cause of pride or it is beneath them or junior Senator from Kentucky is—just funny what seven days can change, it they have something else going on or to clarify my understanding—that this was all good just a week ago. I don’t the answer department was shut down. issue could have been brought to a res- know if it was all good a week ago, but Either way I don’t understand how olution quite a long time ago if the I can tell everyone that things have they cannot answer this very straight- White House had made their feelings changed. forward question. well known in a statement. They could

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00082 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1219 just put that out in a 30-second state- son we are here this evening—has to do issue. It is not a Democratic or Repub- ment, and it would be done. Just come with a straightforward issue. He has a lican issue. This is something that has out and say it, that it is unconstitu- sense of the Senate on which he is pre- ramifications. It is a constitutional tional to kill U.S. citizens that are pared to have the Senate go on record, question. It has to do with due process noncombatants who are in the United and it is very simple and very straight- under the law. It has to do with the ad- States. That is one route. forward. It says: Resolved that it is the vise and consent power of the Senate The other thing that could have sense of the Senate that, No. 1, the use under the Constitution. So when the ended this is the unanimous consent of drones to execute or target Amer- Senator from Kentucky continues to motion he made to have this body vote ican citizens on American soil who press the administration for a straight- on the sense of the Senate, and that pose no imminent threat clearly vio- forward answer, he continues to get would have brought it to a vote. Is that lates the constitutional due process sort of these vague, ambiguous an- accurate? Are those the options before rights of citizens. swers, if you will. Again, these are us? No. 2, the American people deserve a questions that did not just pop up over- Mr. PAUL. Mr. President, that is ex- clear, concise, and unequivocal public night. Back on January 25 of this year, actly the sequence of things. We have statement from the President of the 2013, the Senator from Kentucky posed been in contact with the White House United States that contains detailed to Mr. Brennan a series of questions at throughout the night. We have made legal reasoning including, but not lim- that time. The follow-on letter, which I several phone calls to the White House. ited to, the balance between national quoted from earlier, was from February We told them we are willing to allow a security and due process, limits of Ex- 12. He put forward questions, such as: vote on the Brennan nomination. All ecutive power, and distinction between Do you agree with the argument put forth we ask in return is that we get a clear treatment of citizens and noncitizens on numerous occasions by the executive implication of whether they believe within and outside the borders of the branch that it is legal to order the killing of American citizens and it is not compelled to they have the authority under the Con- United States, the use of lethal force explain its reasoning in reaching this conclu- stitution to target Americans on against American citizens, and the use sion? Do you believe this is a good precedent American soil. I think it is a question of drones and the application of lethal for the government to set? that is fair to ask, and we have been force within the United States terri- He goes on to ask another question: willing to let them have the vote at tory. Would it not be appropriate to require a any time either earlier tonight, obvi- It is a very straightforward resolu- judge or court to review every case before ously, as well as in the morning. All we tion, a sense of the Senate, and all that the individual in question is added to a tar- ask in return from the White House is the Senator from Kentucky is simply geting list? Please describe the due process a clarification. doing is trying to get a response and requirements in place for those individuals The last report I got from the White get a vote on that and make that the being considered for addition to a targeting list. Would you agree it is paradoxical that House is that they were done talking statement of the Senate. He obviously the Federal Government would need to go tonight. I hope that doesn’t mean they wants to get the President of the before a judge to authorize a wiretap on U.S. are done talking tomorrow. I think United States, the White House, and citizens overseas but possibly not to order a this struggle is an important struggle, Mr. Brennan—whose nomination is lethal drone strike against the same indi- and I think there needs to be clarifica- pending before us—to make a clarifica- vidual? If not, please explain why you believe tion from the White House before this tion on that point. something similar to the FISA standard goes forward. This is a point in time It is not like this issue popped up should not be applied in regard to lethal ac- tions against citizens of the United States. when the question has been raised. I overnight. The Senator from Kentucky These are straightforward questions. think it is important for them to an- has been trying for some time to get an These are questions to which I believe swer the question, and the fifth amend- answer to this question. He has sub- the Senator from Kentucky deserves an ment is not optional. They don’t get to mitted numerous letters addressed to answer. Many of us this evening, at choose to adhere to the fifth amend- Mr. Brennan. this late hour, are here to support him This is a letter from February 12 ment. This applies to U.S. citizens on in that endeavor and his attempt at where he poses numerous questions, U.S. soil, and there are no exceptions least to try—as this nomination moves one of which is: Do you believe that the to that. through the process—to get the an- President has the power to authorize Without yielding time, I would like swers to the questions that would to entertain a question from the Sen- lethal force, such as a drone strike, allow him to perform the advise and ator from South Dakota. against a U.S. citizen on U.S. soil? consent function that is in the U.S. The PRESIDING OFFICER (Ms. What about the use of lethal force Constitution as it applies to nomina- HEITKAMP). The Senator from South against a non-U.S. person on U.S. soil? tions and as it has been implemented Dakota. These are straightforward questions to here by the Senators in history. Mr. THUNE. Madam President, I which the Senator from Kentucky de- I want to say to the Senator from thank the Senator from Kentucky for serves an answer, and this is a per- Kentucky—and I have a question for yielding for a question. I appreciate his fectly fitting and appropriate time in him in a moment—that it is remark- diligence in continuing at this late which to try and get that answer. able to see this process unfold. In my hour to get an answer to some very im- The nomination of the CIA Director time here—and I came in the 2004 elec- portant questions. is an incredibly important and stra- tion; started my service in the U.S. I think many of us when we got up tegic position in this country, and Senate in January of 2005—I have not and came in this morning were pre- under the Constitution of the United seen a time where we had a Senator paring and getting ready for the big States, article II, section 2, the Presi- who as a matter of principle stood blizzard of 2013 which, of course, never dent has the power by and with the ad- down here for the number of hours he materialized here in Washington, DC. vice and consent of the Senate to make has today and insisted on getting some Evidently, there were a lot of agencies treaties provided two-thirds of the Sen- answers. I give him great credit for the of government that were not here ators concur. ‘‘He shall nominate, and job he has done in pressing this issue. today. Perhaps when they get back, with the advice of the Senate, shall ap- He has not been given that answer maybe the Senator from Kentucky will point ambassadors, other public min- yet. It sounds as though it has kind of get an answer to his question. I think isters, counsels, judges of the Supreme come up to the line a couple of times. it is a straightforward question. Court, and other officers of the United It is very simple. They could put this I am someone this evening who has States.’’ thing to rest. All they have to do is supported the use of drones in fighting It is the advise and consent power come forward and answer that very the war on terror. I think they have that the Senate has under the Con- simple question about the legal author- been very effective in killing terror- stitution that the Senator from Ken- ity to target American citizens on ists, people who want to do harm to the tucky is exercising on this nomination. American soil with drone attacks. It people of this country. But I think the Again, it has been pointed out many doesn’t seem to me, at least, that it question that has been raised by the times on the floor of the Senate today would be that hard of a question to an- Senator from Kentucky—and the rea- this is not something that is a partisan swer. They say as a matter of policy

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00083 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1220 CONGRESSIONAL RECORD — SENATE March 6, 2013 they have not done that and they don’t be happy to vote on the Brennan nomi- I congratulate my colleague from have any intention of doing it in the nation as early as tomorrow morning. Kentucky for this extraordinary effort. future. Why don’t we put this issue to I wish to yield time to the minority Mr. PAUL. Madam President, I wish rest once and for all, and the Senator leader. to thank the minority leader for his re- from Kentucky will allow the process Mr. MCCONNELL. I thank my col- marks and for his insightful questions. to go forward and Mr. Brennan can get league from Kentucky. First let me say The question about whether the Presi- his vote. I think our mutual constituents will dent has actually gotten involved with In the time I have been here, at least, certainly learn—— what the rules will be has actually it certainly is remarkable to me to see Mr. DURBIN. Madam President, was been somewhat broached. He was asked the amount of effort the Senator from there a unanimous consent request? at Google about whether this could Kentucky has put forward in trying to Mr. MCCONNELL. Would the Senator occur and he said, Well, the rules would get an answer to a very straight- from Kentucky yield for a question? have to be different outside than in- forward question. I give him great Mr. PAUL. Yes. side. So it implies they have thought credit for that, because a principled Mr. MCCONNELL. First let me thank about what the rules should be outside, stand is something we don’t see enough my friend from Kentucky for his cour- but to my knowledge no one in the In- of around here. So to stand here and age and conviction. Having been here a telligence Committee has been in- use his powers as a Senator in a way while in the Senate, we have only rare- formed what the rules are inside. that is very fitting with the tradition ly, as Senator THUNE pointed out, had It troubles me that they think they and history of this great institution— extended debate on any matter. A body have the authority to do targeted we look at the U.S. Senate and those that came into existence for the pur- drone strikes inside, particularly when who have come before, the place of pose of lengthy discussions of weighty there are examples of the Twin Towers great characters of our history, includ- issues has, in recent years, had very and 1941 Pearl Harbor. Those would be ing Calhoun and others who have little lengthy discussion of weighty attacks we would repulse no matter graced the U.S. Senate and some of the issues. who we knew was coming in. There great debates that have occurred in the If I understand the issue the Senator wouldn’t be a targeted strike on an in- past. It is nice to see a discussion and from Kentucky feels so passionately dividual at a designated time. We debate about a major constitutional about, it is that the administration would repulse those attacks militarily issue, a major constitutional question. should answer a question that is pretty and they wouldn’t even fall into the I, as do many of my colleagues who easily stated, as I understand it, as fol- category of what we are talking about are here this evening, support the Sen- lows: Does the administration take the here as targeted drone strikes. We ator from Kentucky in his quest to get view that a drone strike against a U.S. might use drones, but they wouldn’t be answers. I think it is certainly appro- citizen on U.S. soil would be an appro- what we are talking about. These are priate. I think it certainly should be priate use of that weapon? Am I cor- questions we have been asking all day. expected that the administration re- rect that is the question the Senator So they have answered a question, just spond to what are very straightforward from Kentucky hopes to get an answer not the question we asked. questions with regard to the issue that to from the administration? Mr. MCCONNELL. I thank my friend has been raised by the Senator and I Mr. PAUL. Yes. from Kentucky. hope that answer will be forthcoming. Mr. MCCONNELL. And I assume the Mr. PAUL. Madam President, I wish If it is not, it is entirely possible, I sup- Senator from Kentucky shares my view to yield for a question to the Senator pose, that this could continue for some that it is a pretty easily understood from Pennsylvania. time into the future. question. It strikes me that the ques- Mr. TOOMEY. Madam President, I But in any event, I ask the Senator tion again is pretty easily understood wish to spend a couple of moments here from Kentucky what it will take in and has to be something the adminis- revisiting the context in which this terms of some sort of affirmation, some tration has given some thought to, discussion occurred. I want to com- sort of answer, some sort of response given the development of this new mend the Senator from Kentucky for from the White House, from the nomi- weapon. raising what I think is an extremely nee, the Director of the CIA, to satisfy I heard Senator BARRASSO earlier important issue and forcing the atten- the question he has raised. It seems to today talking about how this tech- tion of this body to this issue at an ap- me, at least as a Senator from South nology has changed—we would never propriate time, which he has done, and, Dakota, that the question he poses is a have thought of this a few years ago— I might add, at great personal incon- straightforward and simple one and this technology has actually changed venience to himself. merely requires a very simple answer. warfare in a very dramatic way. So as This arose from a letter the Senator Mr. PAUL. Madam President, I thank I understand it, what the Senator from from Kentucky sent to Mr. Brennan, the Senator from South Dakota for his Kentucky is looking for is how this the nominee for the Director of Central remarks and would make the comment dramatic new weapon applies to the Intelligence, and the response he got. that I, as has he, have seen what drones U.S. Constitution—how the use of it These are short letters. I want to re- can do to protect our soldiers and no applies to the U.S. Constitution on view this so it is very clear exactly one is arguing against that. No one is American soil. what was posed and what the response arguing against drones or any other So I think it is entirely appropriate was and where we are at the moment in kinds of force to defend the country that the Senator from Kentucky en- this debate. against any kind of an attack. What we gage in an extended debate with the The letter from the Senator from are arguing for is that noncombat- support of his colleagues to get the an- Kentucky begins: ants—people not engaged in combat in swer to this question. I wanted to con- Dear Mr. Brennan: In consideration of your our country—are due fifth amendment gratulate him for his tenacity, for his nomination to be the director of the Central protections, and that the White House conviction, and for being able to rally Intelligence Agency, I have repeatedly re- should acknowledge this. This is im- the support of a great many people, as quested that you provide answers to several portant because the drone strikes over- well as people who have come over questions clarifying your role in the ap- seas, when looking at the category and from the House of Representatives who proval of lethal force against terrorism sus- looking at the way they are being done feel also, I gather, that this is a legiti- pects, particularly those who are U.S. citi- and under what standards, there are mate question the administration zens. Your past actions in this regard as well as your view of the limitations to which you some of those standards that we don’t ought to be answering. are subject are of critical importance in as- think are appropriate for U.S. citizens I might say, at whatever point we get sessing your qualifications to lead the CIA. on U.S. soil. So we are asking for a to a cloture vote to extend debate on If it is not clear that you will honor the lim- clarification. We think Attorney Gen- the nomination of Brennan, it is my its placed upon the executive branch by the eral Holder got close to that today, view cloture should not be invoked. Constitution, then the Senate should not under the duress of cross-examination. This is a controversial nominee. confirm you to lead the CIA. We wish to see him do it voluntarily in Should cloture be invoked, I intend to Clearly, this is the idea that is under a nice, concise statement and we would oppose the nomination. scrutiny this evening.

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00084 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1221 The letter goes on to say: been posed clearly. It has been posed tional security. The minority leader al- During your confirmation process in the repeatedly. luded to this in some respects. Senate Select Committee on Intelligence, Now I want to share with my col- As I mentioned earlier today, there is committee members have quite appro- leagues the answer, such as it is, that no question we have a relatively new priately made a request similar to questions we have received, the most recent an- phenomenon in our national security I have raised in my previous letter to you, swer that was directed to the Senator challenges. It is only in very recent that you expound on your views on the lim- from Kentucky which, again, I would times that we have come to understand its of executive power in using lethal force against U.S. citizens, especially when oper- suggest is not responsive to the ques- the nature of a whole new kind of ating on U.S. soil. In fact, the chairman of tion. enemy. It is not just a nation state the SSCI— A letter dated March 4, addressed to anymore, which has historically been The Senate Select Committee on In- Senator PAUL, says: the nature of military threats. But now telligence On February 20, 2013, you— there is a very different kind of Senator Feinstein, specifically asked you Referring to Senator PAUL— threat—dispersed, somewhat affiliated, in post-hearing questions, for the record, wrote to John Brennan requesting additional sometimes affiliated, hard to discern— whether the administration could carry out information concerning the Administration’s a geographically widespread network drone strikes inside the United States. In views about whether ‘‘the President has the of terrorists. That is very different your response, you emphasize that the ad- power to authorize lethal force, such as a than the traditional nation state. That ministration ‘‘has not carried out’’ such drone strike, against a U.S. citizen on U.S. is a different kind of threat, and we soil, and without trial.’’ strikes, and ‘‘has no intention of doing so.’’ have spent a lot of time trying to come I do not find this response sufficient. The letter goes on to say: to terms with how best to address this. Let me just add editorially, I do not As members of this Administration have In an overlapping period of time, a know how anyone could find that suffi- previously indicated, the U.S. government new technology has emerged. We have cient. It clearly is an evasion of the has not carried out drone strikes in the developed it. It is an amazing tech- question. That doesn’t answer the United States and has no intention of doing so. As a policy matter, moreover, we reject nology that gives us the ability from question that was posed by Senator the use of military force where well-estab- vast distances away to send out a very FEINSTEIN, just as we haven’t been able lished law enforcement authorities in this sophisticated unmanned aircraft that to get an answer to the question posed country provide the best means for incapaci- is quite lethal and quite capable of de- by the Senator from Kentucky. tating a terrorist threat. We have a long his- stroying a target. I think most of us The letter goes on to say: tory of using the criminal justice system to probably feel that there are many cases The question that I and many others have incapacitate individuals located in our coun- where this is an appropriate tool under asked is not whether the administration has try who pose a threat to the United States an appropriate set of circumstances. and its interests abroad. Hundreds of individ- or intends to carry out drone strikes inside But, frankly, I think it should be the the United States, but whether it believes it uals have been arrested and convicted of ter- has the authority to do so. This is an impor- rorism-related offenses in our federal courts. subject of an ongoing discussion: How tant distinction that should not be ignored. The question you have posed is therefore would we use this? Under what cir- entirely hypothetical, unlikely to occur, and cumstances? Does the President have And this, of course, goes to the heart one we hope no President will ever have to unlimited unilateral authority? That is of the question: Does this administra- confront. It is possible, I suppose, to imagine a discussion we ought to have about tion believe it has the authority to an extraordinary circumstance in which it the use of this technology overseas carry out a lethal strike by a drone would be necessary and appropriate under where I think, as I say, it has a very against an American citizen on Amer- the Constitution and applicable laws of the important, very useful, very legitimate ican soil. United States for the President to authorize The letter goes on to say: the military to use lethal force within the function. territory of the United States. For example, But when we are talking about using Just last week, President Obama also this, the American Government using avoided this question when posed to him di- the President could conceivably have no rectly. Instead of addressing the question of choice but to authorize the military to use this military asset to kill American whether the administration could kill a U.S. such force if necessary to protect the home- citizens on American soil, I am a little citizen on American soil, he used a similar land in the circumstances of a catastrophic shocked that there is not an automatic line that ‘‘there has never been a drone used attack like the ones suffered on December 7, presumption that that is not permis- on an American citizen on American soil.’’ 1941, and September 11, 2001. sible—certainly not legal. I cannot un- The evasive replies from the administra- Were such an emergency to arise, I would examine the particular facts and cir- derstand the constitutional basis for tion to this valid question have only con- this. I would certainly suggest that the fused the issue further without getting us cumstances before advising the President on any closer to an actual answer. the scope of his authority. burden ought to be on those who would Sincerely, suggest that that is permissible. I would say that is—again, this is my Eric H. Holder, Jr. So what the Senator from Kentucky editorial comment—I think that is a Attorney General has said is: Just tell us the answer to generous assessment. When a direct The reason I read the entire letter is this question. Do you believe you actu- question is asked and the party to because I did not want anyone to think ally do have this authority? And could whom the question is directed repet- any part of this was taken out of con- you tell us that? If they believe they itively evades the question, it makes text or anything was being left out. have this authority—and since they one seriously wonder what their inten- When you read the entire letter, in will not answer unequivocally that tions are. response to the entire letter that was they lack the authority, it is hard to The letter goes on to say: sent as a request, I think it is very infer anything other than that perhaps For that reason, I, once again, request you clear. This administration refuses to they think they do have this authority. answer the following question: Do you be- answer a simple and very important It obviously raises a whole lot of very lieve that the President has the power to au- thorize lethal force such as a drone strike and very legitimate question. important questions, such as under against a U.S. citizen on U.S. soil and with- Our Attorney General suggests that what circumstances would you feel you out a trial? I believe the only acceptable an- under a certain set of circumstances— have the authority to exercise this swer to this is no. Until you directly and which he will not specify any guiding power? And exactly who would be tar- clearly answer, I plan to use every proce- principles or rules that would allow us geted? And how would you decide dural option at my disposal to delay your to understand those circumstances—he whom to target? And in the event you confirmation and bring added scrutiny to would examine the facts and cir- are carrying out a strike using lethal this issue and the administration’s policies cumstances and then advise the Presi- force of this magnitude on American on the use of lethal force. The American people are rightly concerned dent on the scope of his authority. soil against an American citizen, what and they deserve a frank and open discussion There is no suggestion of what legal kind of criteria would govern your on these policies. authority he has to do this. There is no judgment about the risks that would be Sincerely, Rand Paul, M.D., United States description of the constitutional au- imposed on innocent people who are in Senator. thority. I find this very disturbing. We the vicinity? And what about any judi- I have to say, this is a very straight- have all observed the very new develop- cial review at all? Would there be any forward and simple question. It has ments that we are experiencing in na- appropriate role for it because, of

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00085 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1222 CONGRESSIONAL RECORD — SENATE March 6, 2013 course, we have a very long tradition of prompted me to recall a specific set of scrambled our military planes. And had due process. circumstances which I think address that plane not crashed into the coun- There are a lot of Americans who his concerns, our mutual concerns, tryside in Pennsylvania and come have serious reservations about the about the use of lethal force. within the airspace of this Capitol, I idea of indefinite detention on Amer- I know we are talking about this in think we know what would have hap- ican soil. Indefinite detention is pretty the context of drones, but a drone is a pened. Our government would have tame compared to being destroyed by a weapon, and there are other weapons used lethal force—military lethal drone. by which our government can use le- force—to shoot down a civilian air- So I would suggest the failure of the thal force to kill people. plane that was threatening, we be- administration to answer this basic So I think, going to the question the lieved, the lives of innocent Americans. question of whether they believe they Senator asked Mr. Brennan, in a more It would have been the use of lethal have the authority to do something generic sense, the question is, When force on our soil to stop a person or that is completely unprecedented is a can our government use lethal force in persons whom we believed were terror- very fundamental and important ques- the United States against perhaps U.S. ists about to kill innocent Americans. tion and completely legitimate. And it citizens? I think it is a legitimate ques- So when I listened to the response is completely appropriate for this body tion. from Attorney General Holder in hypo- to insist on an answer to this question I was not misleading the Senator ear- thetical and put it in the context of 9/ before we would go ahead and confirm lier when I said there is a scheduled 11, I can imagine that President Bush a person who would have enormous hearing—the only scheduled hearing— might have been called on in an instant power and authority over a variety of on this question coming up before the to make a decision as Commander in national security issues. Judiciary Subcommittee on the Con- Chief to bring down the fourth plane I want to commend the Senator from stitution, which I chair. And the rank- before it crashed into another building Kentucky for putting a bright light on ing member is Senator CRUZ of Texas and killed innocent people. this issue. This is a very important who was here earlier. That is a circumstance, I would say issue, and, as I mentioned earlier, he So I think it is important, and it is to the Senator from Pennsylvania and has done it at great personal inconven- an important constitutional question, the Senator from Kentucky, which I ience to himself because he has a pas- but, while my colleague from Pennsyl- fully understand and expect the Com- sionate commitment to the liberty of vania is here, I wish to recount a set of mander in Chief to respond to. the American citizens. He manifests circumstances for him, and then pose a So I do not think this is such a clear that all the time in many ways, and question to the Senator. and easy situation. It is important that this is one of the ways he is doing it. I The circumstances were September we have this hearing and explore the commend him for that. 11, 2001. Some of us were in this Capitol many possibilities—the possibility of a I would conclude my question by ad- Building, in fact, just outside this door. terrorist overseas who threatens our dressing the Senator, through the Pre- As we came to work, we heard that safety and the use of lethal force, siding Officer. My question for the Sen- some plane had crashed into the World drones or otherwise, the possibility of a ator is, has there been any change in Trade Center in New York. As we were non-U.S. terrorist in the United States the status of the lack of response from watching on television, a few minutes and use of lethal force to deter them. the administration since the last time after 9, a second plane crashed into the And then obvious questions: What if it we have heard from the administra- World Trade Center—the adjoining is a U.S. citizen overseas? What if it is tion? building. We all know what happened a U.S. citizen in the United States? Mr. PAUL. Madam President, we following that. I joined 10 other Senators asking for have been asking the question of the As we were in our meeting here, just the same legal memos, which I think White House all day, and we have said a few feet away, we started seeing the Senator would like to see as well, all along that we would allow the vote black, billowy smoke coming across justifying whatever course of action to proceed, but we have not gotten any the Mall right outside our window this administration has used. I think it response from the White House. The here. A third plane, taken over by is a legitimate constitutional responsi- consideration of whether we will get a these terrorists, was crashing into the bility of the Senate and the House and response tonight I think is unlikely. Pentagon. What we did not know at the this Congress. We will still keep pressing the issue in time was that there was a fourth plane. But I also understand, having lived the morning as well. But we evacuated the Capitol. All of through—as all of us did in some re- But with regard to the Senator’s re- us, literally every one, raced out of spect—9/11, the complexity of those de- marks, I think one of the things I hope this building to stand on the lawn out- cisions that have to be made in such a will come out of this debate will be side. It was not a safe place, but we did fashion. that we will reassert our authority as a not know where to go—all the tourists, So my question to the Senator—as I function of the separation of powers, all the staff, and all the rest. said before, we have to end with a ques- where our body will say to the Presi- It was not but a few minutes that we tion mark—don’t you consider the situ- dent: We not only would like your were out there, and we heard some- ation of 9/11 and the use of lethal force, drone memos on how you think you thing that sounded like a shot, a dis- even military force, to shoot down a ci- can do this, but we should reassert our charge of a weapon. In fact, it was vilian plane—if it had survived the pas- authority and tell the President, this is fighter planes that were being scram- senger effort in Pennsylvania and was how we think you should do it, and this bled to protect the United States Cap- headed for the U.S. Capitol—to be a le- is the law that is going to dictate and itol. At that time, the order had gone gitimate exercise of a Commander in circumscribe how you will do this. out to all commercial airplanes in the Chief to protect the United States? That is an authority that I think has United States: Land immediately, so Mr. PAUL. Madam President, abso- been long necessary and we have been that we would know who was in our lutely. My answer to the question the letting go by the side and I think we airspace and not responding to that Senator raised is absolutely. We have should reassert. command. the right to defend ourselves. It would At this time, Madam President, I It turns out there was a fourth plane have been a decision that has to be wish to yield to—— involved, and that plane crashed in made imminently because a lethal Mr. DURBIN. Madam President, will Pennsylvania, we believe because of threat needs to have a lethal response the Senator yield for a question? the heroism and bravery of the pas- immediately. Mr. PAUL. Without relinquishing the sengers on board; that when they real- My whole problem with this whole floor, I will yield for a question. ized what was happening, they tried to debate is, none of us disagrees with Mr. DURBIN. I thank the Senator take control of that plane before it that, I do not think. We all agree that from Kentucky, and I apologize to my could be used as a weapon. you can repel an imminent attack. We friend from Wisconsin. I know he has Many people believe that plane was all agree if someone is outside the Cap- been waiting. But the question asked aimed for this building or for some- itol with a rocket launcher or grenade by the Senator from Pennsylvania place in Washington, DC. We had launcher, lethal force can be used

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00086 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1223 against them. None of us disagrees on complies with the law of war prin- budgets. They are debating issues. that. ciples, such as the need to minimize They are passing real pieces of legisla- We are talking about a targeted collateral damage.’’ tion that, unfortunately, are being drone program where we target individ- I will say to the Senator, I stand with dropped over here in the Senate, where uals. Overseas, the standard seems to him. I want an answer to his question. those good pieces of legislation die. include people who are not actively en- I think we should pursue it on a bipar- That is a real shame. gaged in combat who we think either tisanship basis, as we have many issues For example, I serve on the Budget might be in the future or have been in together in the past. I think it is a le- Committee of the Senate. I have been the past. I do not think that standard gitimate question. But I would say on that Budget Committee for 2 years. can be used in the United States. I that the white paper we have been We have not yet voted on a budget in think when you are in a battlefield, given relative to this U.S. citizen over- the Budget Committee. This is, by the you do not get due process. If you are seas has some fairly narrow cir- way, when this Nation is facing a fiscal shooting at Americans, drones can hit cumstances in terms of the use of crisis unlike anything we have ever you anytime, missiles can hit you. force. faced in our history. We have racked up There is no due process in a battle. When it comes to the use of that 4 years now where our debt exceeds $1 This is a big debate because many force in the United States, I believe the trillion. There is no end of that in have said the battlefield is here. But if circumstances should be just as nar- sight. We have not passed or even the battlefield is here, that would row, if not more. I would say to the brought to the floor an appropriations imply the fifth amendment does not Senator, I am genuine in my concern bill all year long. How can we function apply here. The President has said he for bringing these issues out in a full as a body if this is how it operates? will use the fifth amendment in the hearing of our constitutional sub- A number of Republican Senators process of deciding drone attacks over- committee. I think I have answered the joined the President at his gracious in- seas, but he does not get the option to question. I hope he appreciates my sin- vitation for dinner tonight. It was an kind of use it privately. Using the fifth cerity. excellent dinner. It was a genuine, sin- amendment privately to me is not Mr. PAUL. Madam President, in very cere, open discussion of the fiscal prob- using the fifth amendment. quick response to that, one of the few lems facing this Nation. I was part of a I will say, I have a great deal of re- problems with that is they also go on group of 44 Senators a year and a half spect for the Senator from Illinois. We to say that imminent does not need to ago, almost 2 years now, who also have often been on the same side on be immediate. You are also implying joined the President prior to the final civil liberties issues. I do not question that you can kill this American citizen debate on the first debt ceiling in the that he and I may well see eye to eye in a noncombat situation, not an ac- summer of 2011. The President of the on this issue, that targeted killings of tive battlefield. I do not accept that United States leaving that meeting people in restaurants, in their house, in standard for the United States. It is should have come away with a very a hotel, are not something we can or another debate whether we accept the strong understanding that those 44 Re- publican Senators were incredibly sin- will tolerate. It contravenes the Con- standard overseas. I think it is an im- cere in their desire to work with the stitution. It is a simple question. The portant debate. But the debate about President, to work with our colleagues President should simply answer that whether that is a sufficient standard across the aisle, to solve these prob- question. I think Attorney General for America, it is not. To kill someone lems. I will tell you, I am one Senator Holder was coming in the direction of not in combat—one, it is not wise. You who ran for office not to become a Sen- that. But why is it so hard? Why is it are not going to get any information. ator but because we are losing this like pulling teeth to get them to admit When someone is eating dinner, why do country. We are bankrupting it. they do not have this power? Presi- you not send the police over and arrest One of the things I do when I talk dents need to more easily say: By them? To kill someone who is in a non- around the country, I make it a point golly, no, the Constitution says you combat situation in America is unac- that fortunately I do not know of any cannot do that. The fifth amendment ceptable in America under any cir- parent who would willingly max out does apply. There are no exceptions to cumstances. I think we need to come to their credit cards, get in debt way over the fifth amendment for American citi- an agreement on that. their heads never intending ever to pay zens on American soil. That is all we I wish to yield for a question to the it off, but fully intending to pass it off are asking. Senator from Wisconsin. to the children and the grandchildren. But I think the 9/11 comparison and Mr. JOHNSON of Wisconsin. Madam I do not know any parent that way, for- Pearl Harbor is a red herring in the President, all of us have come down tunately. But as a society that is ex- sense that none of us disagrees with re- here to support a very legitimate re- actly what we are doing. pelling a lethal attack, an imminent quest to have a legitimate question an- Frequently in this political town, Re- lethal attack, an ongoing lethal attack swered. I think the Senator deserves publicans are accused of waging a war with lethal force. No one disagrees those answers. If not an answer from on women, waging a war on immi- with that. the White House, he at least deserves a grants. None of that is true. What Mr. DURBIN. Will the Senator yield vote. Washington is doing is we are waging a further for a question? I started watching here this morning. war on our children. We are mort- The white paper that has been pre- The Senator started about 11:57. It is gaging their future. It is absolutely im- sented to us by the Justice Department now past midnight. I think my primary moral. Americans have got to stop and concludes that the right to national action is one of just being puzzled. I consider what it is we are actually self-defense and the 2001 authorization have been here for 2 years. I have never doing to future generations. to use military force gave the U.S. served in any kind of legislative body. So I felt good at the dinner with the Government legal authority to kill a I certainly came to the Senate think- President tonight—I think all of my U.S. citizen in a foreign country that is ing this was the world’s greatest delib- colleagues did. I hope the President not an area of active hostilities, if the erative body. What I found is a body did—with a pretty strong sense, once target is a senior operational leader of that is utterly dysfunctional. Even again, that there is a great deal of sin- al-Qaida or an associated force. So it is though this is actually one of the best cerity, a great deal of desire to roll up qualified in that regard. examples of how this body ought to our shirt sleeves, put down partisan The white paper argues, such an at- work, it is also an example of that dys- bickering, put down partisan dif- tack does not violate the constitu- function. I cannot believe this issue ferences, work together to solve this tional rights of a U.S. citizen in this has not been resolved within a half problem. circumstance, ‘‘if he poses an immi- hour, within an hour. Just take a vote. I think there has got to be a realiza- nent threat of violent attack against We have a number of our colleagues tion that neither side is going away. If the United States.’’ Imminent threat. from the House coming here in support we are going to start solving these No. 2, ‘‘his capture is not feasible,’’ or of the Senator from Kentucky. The problems, we have got to start working the Justice Department white paper House is operating, I believe, as our together. We have got to return the goes on to say, ‘‘and the operation Founders intended. They are passing Senate into that deliberative body that

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I think zling that we are here now after mid- against the assassination of Americans we are not asking for any heavy lifting night. I applaud the Senator for his re- without due process on U.S. soil. here. We are asking the President: Do solve here. That is why he sees every I will close with the question that we you have the authority. Member coming down here and pro- have heard many times already. Why I think it is important that it is a viding the support. But I think all he will this administration not simply legal question in the sense we want to wanted was either unanimous consent state it is unconstitutional and ille- ask and get a legal, constitutional re- or possibly a vote on this simple ques- gal—unconstitutional and illegal—for sponse. We are not asking—we prob- tion: the government to kill Americans in ably won’t do it, we don’t intend to do Resolved, that it is the sense of the Senate the United States on our soil or, as I it, or it is not appropriate, or it is not, that: think about it, it is illegal on the soil as a policy matter we don’t like doing No. 1, the use of drones to execute or to of Greenville, SC, it is illegal in Oconee it. We want the constitutional answer: target American citizens on American soil County, SC. Do you really believe you have the con- who pose no imminent threat clearly vio- It is illegal in Charleston, SC. It is il- stitutional authority to do this. lates the Constitutional due process right of legal throughout the coast of South Mr. FLAKE. I thank the Senator. citizens. Carolina, without due process, to kill Mr. ROBERTS. Mr. President, I rise That seems like a pretty simple ques- an American citizen. Is that what you today, in support of Senator PAUL’s fil- tion, seems like one most Senators are asking? ibuster on the nomination of John would want to express their opinion by Mr. PAUL. Madam President, I think Owen Brennan, to be Director of the taking a vote, or allowing this resolu- it is an easy question to have an- Central Intelligence Agency. I have tion to pass by unanimous consent. So swered, and it boggles my mind. I stated my opposition to Brennan’s I guess my only question is, is that all think the President in general, though, nomination from the beginning. the Senator is looking for, either an and other Presidents in general, hang During my time on the Intelligence answer from the White House or a sim- on to their power with a tenacious Committee and as chairman, I presided ple unanimous consent agreement or a grip, and they don’t want to allow that over hearings before which Mr. Bren- simple vote? there is any possibility that by saying nan testified. Mr. PAUL. Madam President, I thank they don’t have this power, they have His inability to give a straight yes or the Senator from Wisconsin. Yes, we given up some power. no answer was greater than any other had two simple requests tonight. The I think that is a mistake for Presi- witness I experienced. But his approach first was for a vote on a nonbinding dents. I think it goes against what the is exactly what we see from the Obama resolution to express our opinion that candidate, Barack Obama, was for and administration today. it is unconstitutional to kill Ameri- the Senator, Barack Obama. I hope in Senator PAUL has asked a very sim- cans on American soil. That was denied the morning when they wake up they ple question to which the President re- by the majority party. will think about what Candidate fuses to give a direct answer. The ap- The second request we have had, in Barack Obama said in 2007 and what propriate question is: Will the adminis- communication with the White House, Senator Barack Obama once stood for tration clarify any circumstance when is for the White House to say or clarify as a Senator; that is, the power of the it is acceptable to target and kill their opinion that they are not going Presidency is limited and checked by American citizens on American soil? to be doing targeted drone strikes on the Constitution. Senator PAUL is only asking for a noncombatants in America. We have Madam President, at this time I clear, unwavering statement that pro- not had much success with either one. would like to yield for a question from tects Americans’ fifth Amendment We will continue to ask that question. the Senator from Arizona. rights as well as our national security. I have told them I will remove myself Mr. FLAKE. I thank the Senator for All Americans await the answer. from the blockage of John Brennan’s yielding, and I want to commend the The Senate’s duty is to conduct over- nomination as soon as we get some Senator for this 12-hour long quest. sight and ensure our government is clarification from the White House. I I think it is now. It is an important protecting its people and the Constitu- am still hopeful in the morning that topic. I recently traveled to Afghani- tion. In that regard Senator PAUL’s fil- they will do that, and by doing that, we stan and received a briefing there ibuster has been true to our oversight, can move forward with it. about the drone program and how it is obligations and duties; and I congratu- But I have been more than willing to working in Afghanistan. After seeing late him. compromise, because I do not think it that briefing, seeing examples of how it Mr. PAUL. Madam President, at this is so much about John Brennan as it is is being used, I have to tell you, I was point I would like to recognize for a about a constitutional principle, that I awed by it. I thought what a powerful question, without yielding the floor, want the President to publicly ac- weapon, what a great weapon, in this the Senator from Utah. knowledge the fifth amendment does case, to use against terrorists. Mr. LEE. A question I have with re- apply to Americans in our country, and My second thought is what happens gard to an issue that was raised by my that we are not going to cherry-pick when that is in the hands of our enemy. friend a few minutes ago, my friend, when we apply the fifth amendment. I can tell you, it is a sobering thought my distinguished colleague, the senior At this time, I wish to yield for a to think of what happens when our en- Senator from Illinois, touches upon an question from the Senator from South emies get this kind of technology. It is important point, upon a principle of Carolina. also sobering to think of what could law which dates back centuries and has Mr. SCOTT. The drone issue is not an happen if we use this technology here application in myriad contexts, one issue. It is not a question about Demo- domestically. I think the question you that deals with the concept of immi- crats versus Republicans or the DNC have asked is totally right and proper. nence. versus the GOP. It is not a question Where does the President derive au- My friend from Illinois is certainly about the executive branch versus the thority? Does he believe he has the au- correct in pointing out the white paper legislative branch. It is not a question thority to use these weapons or any leaked by the Obama Department of about conservatives versus liberals. It kind of weapon for lethal means when Justice to the news media recently is a question about the Constitution. there is no imminent threat? does include some analysis that talks Another one of our friends said that I think the question the Senator is about imminence. this Nation, our great Nation, needs to asking, if I understand that question It is significant, however, to point stand and recognize what RAND PAUL is correctly, is right and proper. My un- out, on page 7 of that white paper the

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I don’t know that bin Laden had frankly, I expected was, of course not. quire the United States to have clear any due process. Of course the Federal Government can- evidence that a specific attack on U.S. I yield for a question from the Sen- not kill a U.S. citizen on U.S. soil who persons and interests will take place in ator from Texas. does not pose an imminent threat. the immediate future.’’ Mr. CRUZ. I thank the Senator from That has been the state of the law from That is at the top of the first full Kentucky. the day our Constitution came into ef- paragraph on page 7 of the very same I would point out that the questions fect and from before. white paper that my friend from Illi- of imminence, I don’t think, are dif- Instead, the first response of the At- nois was quoting. ficult as has been suggested. Indeed, I torney General was it wouldn’t be ap- In response to that question, it is im- would like to thank the senior Senator propriate to use lethal force there, and portant to point out that they have from Illinois for braving this long we wouldn’t do so. I pressed the ques- taken the imminence out of imminent. evening and for expressing his equal tion again on the Attorney General and There is no more imminence in this and heartfelt concerns about the limi- said: With respect, the question is not standard. So if, in fact, we are to be- tations on the power of the executive whether it is appropriate, it is not a lieve the white paper is the correct as- to take the lives of U.S. citizens on question of prosecutorial discretion. Do sessment of the administration’s posi- U.S. soil. we trust you would not choose to exer- tion, it is no longer an imminent I would point out that at the hearing cise lethal force in those cir- standard. It is something else. It is we had yesterday with the Attorney cumstances? Rather, it is a question something of a new development. It is General there was a series of questions would it be constitutional to kill a U.S. something that was created out of exploring in further depth what the po- citizen on U.S. soil with a drone if that whole cloth by this administration sition of this administration was be- individual did not pose an imminent that has nothing to do with the tradi- cause, in response to the inquiry of the threat? tional imminent standard. Senator from Kentucky, Attorney Gen- The second time the Attorney Gen- I ask my friend from Kentucky eral Holder put in writing that he eral said: I don’t believe it would be ap- whether this is consistent with time- could imagine circumstances in which propriate. Yet a third time I asked the honored notions of due process. it would be permissible to take the Attorney General: I am not asking Mr. PAUL. Madam President, this is lives of U.S. citizens on U.S. soil. about appropriateness. As the Attorney exactly what I understand. It is a sig- The two examples he gave were Pearl General of the United States, you are nificant problem. I will be happy to Harbor and 9/11. As the Senator for the chief legal officer for this Nation. yield if there is a question from across Kentucky responded, and I think ev- Does the Department of Justice have a the aisle or a question that is in the eryone here agrees, those examples are legal opinion as to whether it is con- form of an explanation as well on his unobjectionable. Both of those in- understanding, if we understand this stitutional for the U.S. Government to stances were instances of grievous kill a U.S. citizen on U.S. soil if he or incorrectly, this is a real problem. Be- military attacks. I think nobody cause the idea of imminence that peo- she does not pose an imminent threat? doubts that if Kamikazi planes are Yet a third time the answer was it ple think of is someone leveling a coming down on our ships in Pearl Har- weapon at you, you are in a battlefield, wouldn’t be appropriate. bor, the United States can use lethal and all of these things which none of us Then, finally, when asked a fourth force to take out those planes and to disagrees there should be a response. time, the Attorney General said: When The problem is it really is. I am not save the lives of our service men and I say ‘‘appropriate,’’ I mean it wouldn’t an attorney, so it is easy for me to dis- women. There is no question about be unconstitutional. parage attorneys even though I am that, legal or otherwise. Finally, after asking four times, the Likewise, I think nobody doubts if standing among two I admire—more, Attorney General agreed. terrorists have taken over an airliner probably. The whole point is that My response to that questioning was: and are steering it into a building, that sounds like a bunch of government at- General Holder, I am very glad you tragic a decision would be as heart- torneys got together and tried to write have stated that position. I emphati- rending as the decision on 9/11 must some gobbledygook no one could under- cally agree with that position. I don’t have been for the President to give the stand and doesn’t make sense; that im- understand why it took such gym- order to shoot down that fourth com- minence now means something that is nastics to get to that position. I wish mercial airline—if it began approach- not immediate. you had simply said that in response to I would be happy to entertain a ques- ing yet another target where it could Senator PAUL now 2 days ago. It would tion without yielding the floor. inflict thousands of deaths—I think no- have been a very straightforward and Mr. DURBIN. This is getting peril- body disputes that stopping an immi- simple thing to say. ously close to a debate, and I am sorry, nent, immediate, act of violence, and What I also said to the Attorney Gen- for those observing, it looks like the indeed, a military act of war is fully eral is Senator PAUL and I have drafted Senate is actually in a debate. within the authority of the Federal legislation which will make explicitly The obvious question is was bin Government. clear the U.S. Government may not Laden an imminent threat to the The question posed to the Attorney kill a U.S. citizen on U.S. soil who does United States when we took him out? I General was the question Senator PAUL not pose an imminent threat. think he was. had asked originally—not that ques- I hope, based on the Attorney Gen- Was he hatching a plot to cause harm tion—rather, it was if there is an indi- eral’s representations, the Department to the United States in an imminent vidual, a U.S. citizen on U.S. soil who will support that legislation. That manner? Probably not. is suspected of being a terrorist, and ought, in my judgment, be legislation Mr. PAUL. Madam President, I would for whom we can say arguendo there is which should be bipartisan legislation say touche, a good response, I think abundant evidence to demonstrate this that should pass this body 100 to 0 be- well worth thinking about and difficult individual as a terrorist, and if this in- cause it is truly phrased with as in the sense that I don’t think there dividual is on U.S. soil and is not cur- unobjectionable a legal truism as I are any of us who really were opposed rently an imminent threat of vio- could come up with. to getting bin Laden. There is a ques- lence—if he or she is sitting in a cafe in I will admit I have been flab- tion, you are right, exactly whether rural Virginia having a cup of coffee, bergasted as these days have gone on there was imminence involved. the question I posed to the Attorney why John Brennan, when asked by Sen- I think, though, when we start talk- General is, in those circumstances, ator PAUL this question, did not simply ing about standards, whether we have would it be constitutional for the U.S. say no. Why didn’t Eric Holder, when

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He was said to be so good with on U.S. soil if they do not pose immi- partisan way or, even better, in a unan- the first, that he often had recourse to nent threats. imous manner and clarify that the the latter. He was a fierce abolitionist. I would note, with the hypothetical Constitution prohibits killing U.S. citi- He didn’t suffer fools, and he didn’t that the Senator from Illinois posed to zens on U.S. soil absent an immediate compromise often. Senator PAUL, even in that situation, threat, I would suggest this debate will But what I would say is that it is Osama bin Laden was a horrible enemy have accomplished a great deal because worth fighting for what you believe in. of the United States who committed a it will have made clear the limits of I think the American people can tol- grievous act of terror and was the mas- the Executive power, and it would be, erate a debate and a discussion. There termind behind it. I am very glad that indeed, carrying out the finest tradi- has been nothing mean-spirited about after a decade-long manhunt, we were tions of this body—serving as a check this debate for 12 hours. I think, in able to find him and we were able to, on unchecked government power. fact, more of it would be even better. I on a military battlefield, take him out. So I would ask the Senator from Ken- wish we had more open and enjoined I would suggest that if he were not in tucky, does he agree that if those were debate. The senior Senator from Illi- Pakistan, if he were living in an apart- the outcomes of these proceedings, this nois has brought up good points, and I ment in the suburbs of Chicago, and if would have indeed been a beneficial think there is much discussion. I just he were asleep in bed—and even if he proceeding for helping focus the Amer- hope that this won’t be swept under the were Osama bin Laden, a really, really, ican people on these issues and helping rug and that this isn’t the end of this really bad guy—there is nothing in the draw a line that the Executive cannot but that it is the beginning of this. Constitution that gives the Federal cross consistent with the Constitution? I would go for another 12 hours to try Government the authority to fire a Mr. PAUL. Mr. President, I am hope- to break Strom Thurmond’s record, but I have discovered there are some limits missile at an apartment with a sleep- ful that we have drawn attention to to filibustering, and I am going to have ing person in it in the United States of this issue; that this issue won’t fade to go take care of one of those in a few America if that individual was a U.S. away; that the President will tomor- minutes here. But I do appreciate the citizen. And if he was in the United row come up with a response. I would Senate’s forbearance in this, and I hope States, what we would do is what we like nothing more than to facilitate that if there are some on the other side would expect to do with any other real- the voting and the continuation of the of the aisle who have been listening ly, really, really bad guy, which is go debate tomorrow. I hope the President and feel they may agree on some of in and apprehend him. will respond to us. We have tried re- these issues, they will use their ability Behind enemy lines, you can’t always peatedly throughout the day, and we to impact the President’s decision and do that. There are things that happen will see what the outcome of that is. will, No. 1, say the Senate should be on the battlefield that we would never I would like to thank my staff for trying to restrain the executive do at home. But I would suggest that being here for a long day, for their branch, Republican or Democratic, any argument that says someone sleep- help. I would like to thank fellow Sen- and, No. 2, will use their influence to ing at home in bed presents an immi- ators for being supportive of this cause. try to tell the President to do what I nent threat is an argument that I would like to thank the Members of think really is in his heart, and that is stretches the bounds of the word ‘‘im- Congress who came over to support to say: Absolutely, we are not going to minence’’ beyond where its natural this cause, as well as the clerks, the Capitol Police, the staff of the Senate, be killing Americans not in a combat meaning should lie. situation. We will obey the fifth If an individual is pointing a bazooka the doorkeepers—who, apparently, I amendment; that the constitution does at the Pentagon or robbing a bank or may have gotten in trouble—and any- apply to all Americans and there are committing another crime of violence, body else who came to support us, and no exceptions. even the senior Senator from Illinois, there is no doubt that force—and lethal I thank you very much for your for- force—can be used to stop that crime of for better or worse, for being here to bearance, and I yield the floor. violence. But I think that there like- support the cause. The cause here is The PRESIDING OFFICER (Mr. wise should be no doubt that the Fed- one that I think is important enough SCHATZ). There will be order. Expres- eral Government lacks the authority to have gone through this procedure. sions of approval or disapproval are not to kill U.S. citizens on U.S. soil if there I sit at Henry Clay’s desk, and they permitted in the Senate. is no imminent threat of death or call Henry Clay the ‘‘Great Com- The Senator from Illinois. grievous bodily harm. promiser.’’ When I came to Wash- Mr. DURBIN. Mr. President, let me So I am hopeful that the results of ington, one of my fellow Senators said first, on a personal note, thank the this extended discussion will be sev- to me: Oh, I guess you will be the great Senator from Kentucky. He and I have eral. I am hopeful, No. 1, it will prompt compromiser. I kind of smiled at him agreed on many things and worked to- the White House to do what the White and laughed. I learned a little bit about gether on many more, and there is House has heretofore refused to do, Henry Clay and his career. much common agreement on what we which is, in writing, explicitly answer People think some of us won’t com- hope to achieve with this issue, as im- the question posed by Senator PAUL promise, but there are many com- portant as it is, and I thank him for his now over a week ago and expressly promises. There are many things on spirited defense of his position today in state as the position of the United which I am willing to split the dif- these 12 hours. I want to excuse him States of America that the Federal ference. If the Democrats will ever from the floor whenever he wishes. come to us and say: We will fix and we Government cannot kill a U.S. citizen f on U.S. soil if that individual does not will save Social Security, what age we pose an imminent threat of death or change it to, how fast we do it—there NOMINATION OF JOHN OWEN grievous bodily harm. are a lot of things on which we can BRENNAN TO BE DIRECTOR OF I also hope that a consequence of this split the difference. But the issue we THE CENTRAL INTELLIGENCE extended discussion is that we will find have had today is one on which we AGENCY widespread agreement in this body be- don’t split the difference. I think you Mr. DURBIN. Mr. President, I move hind passing legislation to make clear don’t get half of the fifth amendment. to proceed to consideration of Calendar that the Constitution does not allow I don’t think you acknowledge that the No. 43. such killings. I am hopeful that legisla- President can obey the fifth amend- The PRESIDING OFFICER. The tion will command wide support on the ment when he chooses. I don’t think question is on agreeing to the motion Republican side of the aisle but like- you acknowledge that the fifth amend- to proceed.

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00090 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1227 The motion was agreed to. the Art Institute of Pittsburgh would wasted his GI bill benefits and got into The PRESIDING OFFICER. The transfer to any school, not even to a more debt than he can realistically clerk will report the nomination. community college. Although he re- manage and has nothing to show for it The legislative clerk read as follows: ceived GI bill benefits, those benefits from a for-profit school. We need to Nomination: Central Intelligence Agency. did not cover the costs, all the costs of look at the current system of accredi- John Owen Brennan, of Virginia, to be Direc- the inflated tuition of this Art Insti- tation, consider how for-profit schools tor of the Central Intelligence Agency. tute of Pittsburgh. After 1 year in the are aggressively recruiting our mili- The PRESIDING OFFICER. The Sen- program—1 year—Grant had borrowed tary, as well as using up the DOD tui- ator from Illinois. $32,000 over and above his GI bill bene- tion assistance benefits and veterans’ CLOTURE MOTION fits. Now Grant is in debt with worth- GI bill benefits for low-income stu- Mr. DURBIN. Mr. President, I send a less college credits from a for-profit dents. We need to commit to reforming our current system to protect our stu- cloture motion to the desk. school, the Art Institute of Pittsburgh. dents and not to protect those who are The PRESIDING OFFICER. The mo- He is now attending a community col- in charge of the for-profit schools. We tion having been presented under rule lege, learning the skills he needs to need to direct taxpayers’ dollars to af- XXII, the clerk will report the motion. succeed. He still is going to have to fordable, meaningful education that The legislative clerk read as follows: struggle to pay off $32,000 in debt to a for-profit school that was a worthless will literally help our men and women CLOTURE MOTION experience. He says one-quarter of his in uniform and students across Amer- We, the undersigned Senators, in accord- paycheck goes to his loans and he is ica. ance with the provisions of rule XXII of the I yield the floor. Standing Rules of the Senate, hereby move living paycheck to paycheck. He says to bring to a close debate on the nomination he cannot save for anything and all his f of John Owen Brennan, of Virginia, to be Di- money goes for student loans. He would TRIBUTE TO LYMAN HUBBARD, rector of the Central Intelligence Agency. save for retirement if he could. SR. Harry Reid, Dianne Feinstein, John D. Grant was lucky, in some ways. Rockefeller IV, Debbie Stabenow, Many of his peers stay at for-profit col- Mr. DURBIN. Mr. President, last year, we lost a great American from Sherrod Brown, Jack Reed, Benjamin leges and take on $70,000 or $80,000 or my hometown of Springfield, IL, and I L. Cardin, Thomas R. Carper, Chris- more in student loans, only later to topher A. Coons, Robert P. Casey, Jr., rise today to pay tribute to him and find out the education at these for- Mark L. Pryor, Bill Nelson, Mark his legacy. Begich, Barbara A. Mikulski, Patty profit schools was virtually worthless. Lyman Hubbard, Sr., grew up on a Murray, Carl Levin, Joe Manchin III Students also discover their credits small farm near Springfield that had will not transfer. That ought to be the f been in his family for 165 years—long first question any student asks: If I go enough that at one point the family’s LEGISLATIVE SESSION to your for-profit school, will any other lawyer for the land was a local attor- Mr. DURBIN. Mr. President, I ask school recognize my credits? In this ney named Abraham Lincoln. unanimous consent that the Senate re- case the Art Institute of Pittsburgh In high school, Mr. Hubbard was a sume legislative session. would have had to answer no, and that member of the National Honor Society, The PRESIDING OFFICER. Without might have given Grant some pause. ran track, and played basketball and objection, it is so ordered. These students such as Grant are football. I have heard someone who stuck with mortgage-sized debts and f knew him at the time say that he was end up with no home to show for it and ‘‘the best athlete in Springfield.’’ And MORNING BUSINESS worthless college credits. Grant he was an Eagle Scout. Schaffer’s credits would not transfer Mr. DURBIN. Mr. President, I ask During World War II, before he had because his school had a different ac- unanimous consent that the Senate even graduated from high school, he creditation than even the community proceed to a period of morning busi- signed up to serve his country in the college he now attends. ness, with Senators permitted to speak Air Force. It is a little known fact these for- When he graduated from pilot train- for up to 10 minutes each. profit schools do not reveal to stu- ing, he became the only person from The PRESIDING OFFICER. Without dents: The credits will not transfer Springfield to join the Tuskegee Air- objection, it is so ordered. anywhere because the school is not ac- men the first African-American mili- f credited. tary aviators in the U.S. Armed Our current accreditation system fa- FOR-PROFIT COLLEGES Forces. From there, he fought for both vors schools, not students. That is up- our Nation and for racial equality. He Mr. DURBIN. Grant Schaffer is a Ma- side-down. Schools pay accreditors to logged more than 7,000 hours of flight rine veteran. He attended the Art Insti- accredit them, creating a cozy rela- time in the course of his multitour ca- tute of Pittsburgh, a for-profit college tionship that does not foster any real reer, flying planes from the B–25 bomb- owned by Education Management Cor- accountability. Once a school is ac- er to the EC–121 Super Constellation. poration. Grant saw an advertisement credited, the Government dollars just He flew them well and became a leader for the school and thought the program flow in, but an accreditation is not al- among his peers, ultimately earning a he enrolled in would give him the skills ways the guarantee of academic qual- Bronze Star, an Air Medal with oak he needed to succeed in the workforce ity that most students believe it is and leaf clusters, the Air Force Commenda- after he left the Marines. After enroll- not all accreditations are equal. tion Medal, and a Vietnamese Honor ing at the Art Institute of Pittsburgh, The University of Phoenix, the larg- Medal. Lyman Hubbard accomplished Grant became concerned about the est university in the United States, all of this despite the well-documented quality of the school. He started doing was recently told by its accrediting discrimination that the Tuskegee Air- his own research about the school, the agency that the school would be put on men faced. program, and how many of the grad- notice. The regional accreditor, the The people of Springfield, and all of uates actually got a job. What he real- Higher Learning Commission, an- us, owe a great deal to Lyman Hub- ized was the program wasn’t going to nounced it had some real problems bard, Sr., not just for his exceptional provide him with the skills that were with the way the University of Phoenix valor in combat but also for his devo- promised. In fact, the jobs that his pro- is running its business and treating its tion to preserving the history of the gram would have prepared him to do students. More accreditors, both re- city of Springfield. didn’t even require a college degree. gional and national, should take a clos- When the Lincoln Colored Home, one Grant decided the program at the Art er look at the schools they accredit of the first African-American orphan- Institute of Pittsburgh was not worth and the standards used to accredit ages in the United States and a his- his time or the Government’s money— them. toric property, was at risk of being de- he was on the GI bill—so he decided to How many more people have to go stroyed, Mr. Hubbard purchased the transfer to a community college. The through the experience of Grant Schaf- home outright to save it and planned problem was none of his credits from fer? Essentially, this former Marine to turn it into a community center.

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00091 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1228 CONGRESSIONAL RECORD — SENATE March 6, 2013 While we may have lost Lyman Hub- Dr. Thacker was a true public health Association and the Staple Cotton Dis- bard, Sr., his legacy lives on. hero whose long and distinguished ca- count Corporation, which are Just last week, it was announced reer at the Centers for Disease Control headquartered in Greenwood, MS. He that his sons will donate a collection of and Prevention began as an Epidemic served as their president and CEO from their father’s medals, badges, and pho- Intelligence Service, EIS officer in 1986 until 2010. A native of Doddsville, tographs so that we can all have a 1976. On his first day, he was sent out MS, Mr. Eastland earned a B.A. degree chance to see them. on an investigation of an unknown ill- from Vanderbilt University and a J.D. They will be displayed at the Abra- ness, which turned out to be the first degree from the University of Mis- ham Lincoln Capitol Airport in Spring- recognized Legionnaire’s epidemic. sissippi School of Law. He practiced field, and I hope that those of us who Throughout his 37 years at CDC, Dr. law and was a faculty member of the can will take the time to see them and Thacker was a leader of public health Jackson School of Law from 1972 until reflect on the life and heroism of science and the professionals who prac- 1974. In 1974, Woods married Lynn Lyman Hubbard, Sr. tice that science. Programs under his Ganier Wood and became a cotton, soy- I know I will. leadership introduced thousands of pro- bean and rice grower in Sunflower f fessionals to careers in public health County, MS. He and Lynn have two TRIBUTE TO BILL ROBERTSON and brought epidemiology directly into children and three grandchildren. Woods E. Eastland, in addition to Mr. DURBIN. I rise today to say a middle school and high school class- being a farmer, has built a remarkable few words in honor of Bill Robertson, rooms. He was instrumental in launch- record of service to the cotton indus- an extraordinary man from Rockford, ing the field epidemiology training pro- try, his State and our Nation. He is a IL, whom we recently lost to illness. grams in more than 35 countries. Bill Robertson was a public servant In all of the many position he held, past chairman of the National Cotton in the best sense of the term. For the Dr. Thacker was a steadfast champion Council, past president and chairman last few years, he was considered the of epidemiology, public health surveil- of Cotton Council International, and a voice of reason on the Rockford, IL, lance, and the development of a global past director of the Memphis Branch City Council, but his service started public health workforce. Programs de- Federal Reserve Bank of St. Louis. He well before his election to the City veloped or expanded under his leader- was a member of the board of managers Council. ship have introduced thousands of pro- of the New York Board of Trade when After college, he served in the Ma- fessionals to careers in public health. it was formed from the merger of the rines before signing up for the Rock- Given all this, it is no surprise that Dr. Cotton and Coffee, Sugar and Cocoa ford Fire Department. To put this an- Thacker’s accomplishments were rec- Exchanges. He served 1 year as the vice other way, after serving in a job where ognized through more than 40 major chairman of the board of governors of he would have been under fire, he de- awards and commendations throughout the New York Board of Trade. cided to take a job running into fires. his career, including the Surgeon Gen- In 2005, during Mr. Eastland’s term as It made sense to him, and he loved it. eral’s Medallion, which he received just the council’s chairman, international He spent 36 years of his life in that 2 weeks before his death. trade in cotton and textiles dominated fire department, rising to command the Dr. Thacker’s accomplishments were the U.S. cotton industry’s policy con- department’s training academy. He only exceeded by his treatment of all cerns. In addition, the World Trade Or- will be remembered for always know- persons with dignity, honesty, and re- ganization’s, WTO, Doha Round of ne- ing cadets by name and frequently spect. His career has embodied the best gotiations was a primary focus of the checking in to see how recruits were of CDC’s commitment to science and, cotton industry during Mr. Eastland’s doing. most importantly, to service. tenure as council chairman. He did so well that in 1991 he was I offer my deep condolences to Dr. Under Mr. Eastland’s leadership, the asked to be the ninth chief in the Thacker’s family. Mr. President and council worked as part of a fiber/tex- Rockford Fire Department’s 133-year colleagues, please join me in honoring tile/labor initiative that successfully history. He held that job for 17 years, the memory of Dr. Steve Thacker. I be- convinced the United States to self-ini- until he retired in 2008. lieve there is no question that his im- tiate WTO-sanctioned textile safe- Retirement turned out to be short- portant influence on public health will guards to impose a measure of dis- lived for Bill Robertson. In 2009, he was continue well into the future. cipline on the shipment of Chinese tex- elected to the Rockford City Council, f tiles into our country. U.S. officials and he quickly became a leader there were also persuaded to make changes ADDITIONAL STATEMENTS too. in provisions of the Dominican Repub- His council colleagues recall that, lic—Central America Free Trade Agreement that led to the U.S. cotton even in a time of bitter and occasion- TRIBUTE TO WOODS EASTLAND ally over-the-top politics, Robertson industry’s support for congressional always strove for common ground and ∑ Mr. COCHRAN. Mr. President, I am approval of that pact. acted as a voice of reason. Perhaps that pleased to commend Woods E. Eastland Mr. Eastland traveled to Geneva and is one of the reasons one of the many of Indianola, MS, as the recipient of Washington, D.C., to confer with key reasons so many people from the Rock- the 2012 Harry S. Baker Distinguished trade officials on trade developments ford community came to pay tribute Service Award. The officers of the Na- and to convey the U.S. cotton indus- and celebrate his life when he passed tional Cotton Council of America re- try’s message that cotton should not away. I am told there were hundreds of cently selected Mr. Eastland to be the be singled out for different treatment well-wishers in attendance, and I am 27th recipient of this award, which is from the rest of agriculture in the WTO sorry Loretta and I were not able to be given annually to the individual who Doha negotiations. there to pay our respects to this gen- has contributed most significantly to Beyond his year of service as the erous leader. the advancement of the U.S. cotton in- Council chairman, Mr. Eastland has re- Each and every one of them were dustry. mained active in Council leadership. touched by the good work he did In bestowing this honor on Woods E. He was named chairman of the coun- throughout his life. He will not be for- Eastland, the National Cotton Council cil’s Trade Promotion Authority task gotten, but he will be missed. cited his extraordinary leadership dur- force in 2007 to guide the industry on f ing his year as the council’s chairman trade promotion policy. He is an advi- and his continued service to the U.S. sor to the Council’s board of directors REMEMBERING DR. STEPHEN B. cotton industry. The Harry S. Baker and an active member of its Operations THACKER Distinguished Service Award was start- Committee. Mr. HARKIN. Mr. President, I rise ed in honor of former council president I am pleased to congratulate Mr. today in honor and memory of Stephen Harry S. Baker, and it is the industry’s Eastland on receiving this prestigious B. Thacker, MD, MSc, RADM/ASG, re- most prestigious award. award, and to commend him for his tired, USPHS, who passed away on Fri- Woods E. Eastland is the chairman of contributions to the cotton industry, day, February 15, 2013. the board of Staple Cotton Cooperative American agriculture and fair trade.∑

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00092 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1229 INTRODUCTION OF BILLS AND S. 479. A bill to amend the Internal Rev- the Public Health Service Act to pro- JOINT RESOLUTIONS enue Code of 1986 to clarify the employment hibit family planning grants from tax treatment and reporting of wages paid by being awarded to any entity that per- The following bills and joint resolu- professional employer organizations, and for tions were introduced, read the first forms abortions, and for other pur- other purposes; to the Committee on Fi- poses. and second times by unanimous con- nance. sent, and referred as indicated: By Mr. GRAHAM (for himself, Mr. S. 138 By Mr. ROCKEFELLER (for himself, BEGICH, Mr. FLAKE, Mr. PRYOR, and At the request of Mr. VITTER, the Mr. MANCHIN, Ms. WARREN, and Mr. Mr. HELLER): name of the Senator from Nebraska BROWN): S. 480. A bill to improve the effectiveness (Mrs. FISCHER) was added as a cospon- S. 468. A bill to protect the health care and of the National Instant Criminal Background sor of S. 138, a bill to prohibit discrimi- pension benefits of our nation’s miners; to Check System by clarifying reporting re- nation against the unborn on the basis the Committee on Finance. quirements related to adjudications of men- of sex or gender, and for other pur- By Mr. MENENDEZ: tal incompetency, and for other purposes; to poses. S. 469. A bill to assist the Secretary of the Committee on the Judiciary. S. 154 Housing and Urban Development in stabi- By Ms. KLOBUCHAR (for herself, Mr. lizing the Home Equity Conversion Mortgage LEE, and Mr. BLUMENTHAL): At the request of Mr. COBURN, the program; to the Committee on Banking, S. 481. A bill to require that Federal Com- name of the Senator from Alabama Housing, and Urban Affairs. munications Commission to direct that wire- (Mr. SESSIONS) was added as a cospon- By Mr. TESTER (for himself, Mr. less providers permit the unlocking of mo- sor of S. 154, a bill to amend title I of HELLER, Mr. BOOZMAN, Mr. MANCHIN, bile devices; to the Committee on Commerce, the Patient Protection and Affordable and Mr. BAUCUS): Science, and Transportation. Care Act to ensure that the coverage S. 470. A bill to amend title 10, United By Mrs. FEINSTEIN (for herself, Mrs. offered under multi-State qualified States Code, to require that the Purple BOXER, Mr. LAUTENBERG, Mr. SAND- Heart occupy a position of precedence above ERS, and Mr. TESTER): health plans offered in Exchanges is the new Distinguished Warfare Medal; to the S. 482. A bill to amend the Public Health consistent with the Federal abortion Committee on Armed Services. Service Act to provide protections for con- funding ban. By Mr. SANDERS (for himself, Mrs. sumers against excessive, unjustified, or un- S. 210 BOXER, Mrs. FEINSTEIN, Mr. MENEN- fairly discriminatory increases in premium At the request of Mr. HELLER, the DEZ, and Mr. LAUTENBERG): rates; to the Committee on Health, Edu- names of the Senator from Texas (Mr. S. 471. A bill to amend the Fair Credit Re- cation, Labor, and Pensions. CORNYN) and the Senator from Cali- porting Act to require the inclusion of credit By Mrs. BOXER: fornia (Mrs. FEINSTEIN) were added as scores with free annual credit reports pro- S. 483. A bill to designate the Berryessa vided to consumers, and for other purposes; Snow Mountain National Conservation Area cosponsors of S. 210, a bill to amend to the Committee on Banking, Housing, and in the State of California, and for other pur- title 18, United States Code, with re- Urban Affairs. poses; to the Committee on Energy and Nat- spect to fraudulent representations By Mr. HELLER: ural Resources. about having received military dec- S. 472. A bill to prohibit the further exten- By Mr. INHOFE (for himself, Mr. VIT- larations or medals. sion or establishment of national monu- TER, Mr. COBURN, Mr. ENZI, Mrs. S. 258 ments in the State of Nevada except by ex- FISCHER, Mr. BLUNT, and Mr. GRASS- At the request of Mr. BARRASSO, the press authorization of Congress, and for LEY): name of the Senator from North Da- other purposes; to the Committee on Energy S. 484. A bill to amend the Toxic Sub- and Natural Resources. stances Control Act relating to lead-based kota (Mr. HOEVEN) was added as a co- By Mr. HELLER: paint renovation and remodeling activities; sponsor of S. 258, a bill to amend the S. 473. A bill to ensure that Federal Reg- to the Committee on Environment and Pub- Federal Land Policy and Management ister notices submitted to the Bureau of lic Works. Act of 1976 to improve the management Land Management are reviewed in a timely f of grazing leases and permits, and for manner; to the Committee on Energy and other purposes. Natural Resources. SUBMISSION OF CONCURRENT AND S. 296 By Mrs. HAGAN (for herself, Mr. SENATE RESOLUTIONS TOOMEY, Mr. WARNER, and Mr. At the request of Mr. LEAHY, the JOHANNS): The following concurrent resolutions name of the Senator from Delaware S. 474. A bill to amend provisions in sec- and Senate resolutions were read, and (Mr. COONS) was added as a cosponsor tion 716 of the Dodd-Frank Wall Street Re- referred (or acted upon), as indicated: of S. 296, a bill to amend the Immigra- form and Consumer Protection Act relating By Mr. CASEY (for himself and Mr. tion and Nationality Act to eliminate to Federal assistance for swaps entities; to TOOMEY): discrimination in the immigration the Committee on Banking, Housing, and S. Res. 68. A resolution congratulating the laws by permitting permanent partners Urban Affairs. Penn State IFC/Panhellenic Dance Marathon By Mr. HARKIN (for himself and Mr. of United States citizens and lawful on its continued success in support of the permanent residents to obtain lawful BLUNT): Four Diamonds Fund at Penn State Hershey S. 475. A bill to reauthorize the Special Children’s Hospital; to the Committee on the permanent resident status in the same Olympics Sport and Empowerment Act of Judiciary. manner as spouses of citizens and law- 2004, to provide assistance to Best Buddies to By Mr. BARRASSO (for himself and ful permanent residents and to penalize support the expansion and development of Ms. HEITKAMP): immigration fraud in connection with mentoring programs, and for other purposes; S. Con. Res. 6. A concurrent resolution sup- permanent partnerships. to the Committee on Health, Education, porting the Local Radio Freedom Act; to the S. 309 Labor, and Pensions. Committee on Finance. By Mr. CARDIN (for himself and Ms. At the request of Mr. HARKIN, the MIKULSKI): f names of the Senator from Minnesota S. 476. A bill to amend the Chesapeake and ADDITIONAL COSPONSORS (Mr. FRANKEN) and the Senator from Ohio Canal Development Act to extend to Georgia (Mr. CHAMBLISS) were added as the Chesapeake and Ohio Canal National His- S. 119 cosponsors of S. 309, a bill to award a torical Park Commission; to the Committee At the request of Mrs. BOXER, the Congressional Gold Medal to the World on Energy and Natural Resources. name of the Senator from Montana War II members of the Civil Air Patrol. By Mrs. FEINSTEIN: (Mr. TESTER) was added as a cosponsor S. 346 S. 477. A bill to amend the Indian Gaming of S. 119, a bill to prohibit the applica- Regulatory Act to modify a provision relat- At the request of Mr. TESTER, the ing to gaming on land acquired after October tion of certain restrictive eligibility name of the Senator from West Vir- 17, 1988; to the Committee on Indian Affairs. requirements to foreign nongovern- ginia (Mr. MANCHIN) was added as a co- By Mr. GRASSLEY (for himself, Mr. mental organizations with respect to sponsor of S. 346, a bill to amend title CHAMBLISS, and Mr. ROBERTS): the provision of assistance under part I 10, United States Code, to permit vet- S. 478. A bill to clarify that the revocation of the Foreign Assistance Act of 1961. erans who have a service-connected, of an alien’s visa or other documentation is S. 135 not subject to judicial review; to the Com- permanent disability rated as total to mittee on the Judiciary. At the request of Mr. VITTER, the travel on military aircraft in the same By Mr. GRASSLEY (for himself, Mr. name of the Senator from Nebraska manner and to the same extent as re- NELSON, Mr. PORTMAN, and Mr. (Mrs. FISCHER) was added as a cospon- tired members of the Armed Forces en- PRYOR): sor of S. 135, a bill to amend title X of titled to such travel.

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00093 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1230 CONGRESSIONAL RECORD — SENATE March 6, 2013 S. 443 phans’’ are retired mineworkers for S. 475. A bill to reauthorize the Spe- At the request of Mr. LEAHY, the whom a company no longer makes con- cial Olympics Sport and Empowerment name of the Senator from Minnesota tributions to the pension fund, typi- Act of 2004, to provide assistance to (Mr. FRANKEN) was added as a cospon- cally because the company is out of Best Buddies to support the expansion sor of S. 443, a bill to increase public business. and development of mentoring pro- safety by punishing and deterring fire- Additionally, the bankruptcy of one grams, and for other purposes; to the arms trafficking. coal company is threatening the health Committee on Health, Education, S. 462 benefits of nearly 12,000 miners and Labor, and Pensions. their dependents, the vast majority of At the request of Mrs. BOXER, the Mr. HARKIN. Mr. President, I ask name of the Senator from Oregon (Mr. whom never worked for the company unanimous consent that the text of the that is actually going bankrupt. So de- WYDEN) was added as a cosponsor of S. bill be printed in the RECORD. spite the fact that they were promised 462, a bill to enhance the strategic There being no objection, the text of lifetime healthcare benefits by their partnership between the United States the bill was ordered to be printed in employers when they gave their lives and Israel. the RECORD, as follows: to this industry doing the hardest work S. 475 S. RES. 60 imaginable under that sacred pledge At the request of Mrs. BOXER, the they are now losing those benefits be- Be it enacted by the Senate and House of Rep- name of the Senator from Montana cause a company they never worked for resentatives of the United States of America in Congress assembled, (Mr. TESTER) was added as a cosponsor is going bankrupt. That is unfair and of S. Res. 60, a resolution supporting unjust. SECTION 1. SHORT TITLE; TABLE OF CONTENTS. women’s reproductive health. That is why today I am introducing (a) SHORT TITLE.—This Act may be cited as the ‘‘Eunice Kennedy Shriver Act’’. S. RES. 65 the Coalfield Accountability and Re- (b) TABLE OF CONTENTS.—The table of con- At the request of Mr. GRAHAM, the tired Employee Act. This legislation tents for this Act is as follows: protects pensions for more than 100,000 names of the Senator from Delaware Sec. 1. Short title; table of contents. (Mr. COONS), the Senator from Wyo- mineworkers by taking excess funds TITLE I—REAUTHORIZATION OF SPECIAL ming (Mr. BARRASSO) and the Senator from the Abandoned Mine Land Rec- OLYMPICS ACT from Oklahoma (Mr. INHOFE) were lamation Program and transferring added as cosponsors of S. Res. 65, a res- that money to the miners’ 1974 pension Sec. 101. Reauthorization. olution strongly supporting the full plan. The Coalfield Accountability and TITLE II—BEST BUDDIES implementation of United States and Retired Employee Act also would pro- Sec. 201. Findings and purpose. international sanctions on Iran and tect retiree health benefits by making Sec. 202. Assistance for Best Buddies. urging the President to continue to any retiree who loses benefits following Sec. 203. Application and annual report. strengthen enforcement of sanctions the bankruptcy or insolvency of his or Sec. 204. Authorization of appropriations. legislation. her employer eligible for the health TITLE I—REAUTHORIZATION OF SPECIAL benefits provided by the COAL Act. OLYMPICS ACT f And, importantly this legislation SEC. 101. REAUTHORIZATION. STATEMENTS ON INTRODUCED would hold employers accountable for Sections 2 through 5 of the Special Olym- BILLS AND JOINT RESOLUTIONS the commitments they make to their pics Sport and Empowerment Act of 2004 (42 By Mr. ROCKEFELLER (for him- workers. That is just basic fairness. U.S.C. 15001 note) are amended to read as fol- lows: self, Mr. MANCHIN, Ms. WARREN, Supporting our Nation’s miners is ‘‘SEC. 2. FINDINGS AND PURPOSE. and Mr. BROWN): not a new issue for our country and it S. 468. A bill to protect the health is not a new fight of mine. Dating back ‘‘(a) FINDINGS.—Congress finds the fol- to President Harry Truman, the Fed- lowing: care and pension benefits of our na- ‘‘(1) Special Olympics creates the possibili- tion’s miners; to the Committee on Fi- eral Government has assumed a respon- sibility to our mineworkers. In 1992, I ties of a world where everybody matters, ev- nance. erybody counts, and every person contrib- Mr. ROCKEFELLER. Mr. President, was deeply proud to work on the pas- utes. in West Virginia, we revere our min- sage of the COAL Act, through which ‘‘(2) The Government and the people of the ers—the men and women who put their we recommitted to our miners that a United States recognize the dignity and lives on the line every single day to promise made would be a promise kept. value the giftedness of children and adults provide for their families and bring That bill allowed the transfer of inter- with intellectual disabilities. ‘‘(3) The Government and the people of the light and heat to millions. Their grit, est accruing to the unappropriated bal- ance of the Abandoned Mine Reclama- United States recognize that children and their courage and their determination adults with intellectual disabilities experi- are inspirational to each of us. The tion Fund to be used to provide health care for a large number of orphaned ence significant health disparities, including work they do every day provides nearly lack of access to primary care services and half of our Nation with power and it miners and their widows. This helped difficulties in accessing community-based helps underpin the economy of the avert a nationwide coal strike and it prevention and treatment programs for preserved health benefits for 200,000 re- State we call home. chronic diseases. tired miners and their widows. This ‘‘(4) The Government and the people of the For their hard work in these grueling Federal commitment was renewed in United States are determined to end the iso- jobs mineworkers receive promised the 2006 amendments to the Abandoned lation and stigmatization of people with in- pensions and lifetime health benefits. Mine Reclamation Program that again tellectual disabilities, and to ensure that Health care for all retirees is impor- protected the healthcare plans of min- such people are assured of equal opportuni- tant. But, in many cases, it is even ties for community participation, access to ers from insolvency. appropriate health care, and inclusive edu- more so for retired miners, who have Now, 20 years after passing the COAL stared the possibility of injury or ill- cation, and to experience life in a non- Act, I am again renewing my commit- discriminatory manner. ness in the face every day. Unfortu- ment to the hardest working people I nately, today there are looming ‘‘(5) For more than 40 years, Special Olym- have ever known with the Coalfield Ac- pics has encouraged skill development, shar- threats to the pensions of more than countability and Retired Employee ing, courage, and confidence through year- 100,000 mineworkers and to the Act. We must preserve the solvency of round sports training and athletic competi- healthcare benefits of nearly 12,000 our miners’ pension plans and protect tion for children and adults with intellectual miners and their dependents. the healthcare benefits they need, disabilities. The miners’ pension fund is on the earned and were rightfully promised. ‘‘(6) Special Olympics provides year-round road to insolvency. It has been hit by sports training and competitive opportuni- This is about human decency, it is ties to more than 4,200,000 athletes with in- the perfect storm—the recent financial about doing what is right, and it is crisis, the smaller number of active tellectual disabilities in 30 individual and about having the backs of those who team sports and plans to expand the benefits mineworkers who provide the funding have ours deep underground. of participation through sport to more than base for the pension plan, and the large a million additional people with intellectual number of ‘‘orphans’’ who receive their By Mr. HARKIN (for himself and disabilities within the United States and pensions under the plan. These ‘‘or- Mr. BLUNT): worldwide over the next 5 years.

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00094 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1231 ‘‘(7) Research shows that participation in enter into contracts or cooperative agree- necessary for each of the 4 succeeding fiscal activities involving both people with intel- ments with, Special Olympics for the imple- years; lectual disabilities and people without dis- mentation of on-site health assessments, ‘‘(2) for grants, contracts, or cooperative abilities results in more positive support for screening for health problems, health edu- agreements under section 3(b), $4,500,000 for inclusion in society, including in schools. cation, community-based prevention, data fiscal year 2014, and such sums as may be ‘‘(8) Special Olympics has demonstrated its collection, and referrals to direct health care necessary for each of the 4 succeeding fiscal ability to provide a major positive effect on services. years; and the quality of life of people with intellectual ‘‘(2) COORDINATION.—Activities under para- ‘‘(3) for grants, contracts, or cooperative disabilities, improving their health and graph (1) shall be coordinated with appro- agreements under section 3(c), $8,500,000 for physical well-being, building their con- priate health care entities, including private fiscal year 2014, and such sums as may be fidence and self-esteem, and giving them a health care providers, entities carrying out necessary for each of the 4 succeeding fiscal voice to become active and productive mem- local, State, Federal, or international pro- years.’’. bers of their communities. In the United grams, and the Department of Health and TITLE II—BEST BUDDIES States, for example, adults with intellectual Human Services, as applicable. SEC. 201. FINDINGS AND PURPOSE. disabilities who have participated in Special ‘‘(d) LIMITATION.—Amounts appropriated to (a) FINDINGS.—Congress finds the fol- Olympics have a 100 percent greater chance carry out this section shall not be used for lowing: of being employed than adults with intellec- direct treatment of diseases, medical condi- (1) Best Buddies operates the first national tual disabilities who have not. tions, or mental health conditions. Nothing social and recreational program in the ‘‘(9) In society as a whole, Special Olym- in the preceding sentence shall be construed United States for people with intellectual pics has become a vehicle and platform for to limit the use of non-Federal funds by Spe- disabilities. reducing prejudice, improving public health, cial Olympics. (2) Best Buddies is dedicated to helping promoting inclusion efforts in schools and ‘‘SEC. 4. APPLICATION AND ANNUAL REPORT. people with intellectual disabilities become communities, and encouraging society to ‘‘(a) APPLICATION.— part of mainstream society. value the contributions of all members. ‘‘(1) IN GENERAL.—To be eligible for a (3) Best Buddies is determined to end social ‘‘(10) The Government of the United States grant, contract, or cooperative agreement isolation for people with intellectual disabil- enthusiastically supports the Special Olym- under subsection (a), (b), or (c) of section 3, ities by promoting meaningful friendships pics movement, recognizes its importance in Special Olympics shall submit an application between them and their typical peers in improving the lives of people with intellec- at such time, in such manner, and con- order to help increase the self-esteem, con- tual disabilities and their families, and rec- taining such information as the Secretary of fidence, and abilities of people with and ognizes Special Olympics as a valued and im- Education, Secretary of State, or Secretary without intellectual disabilities. portant component of the global community. of Health and Human Services, as applicable, URPOSE.—The purposes of this Act (4) Since 1989, Best Buddies has enhanced ‘‘(b) P may require. are to— the lives of people with intellectual disabil- ‘‘(2) CONTENT.—At a minimum, an applica- ‘‘(1) provide support to Special Olympics to ities by providing opportunities for 1-to-1 tion under this subsection shall contain each increase athlete participation in, and public friendships and integrated employment. of the following: awareness about, the Special Olympics (5) Best Buddies is an international organi- ‘‘(A) ACTIVITIES.—A description of activi- movement, including efforts to promote zation spanning 1,500 middle school, high ties to be carried out with the grant, con- broader community inclusion; school, and college campuses. tract, or cooperative agreement. ‘‘(2) dispel negative stereotypes and estab- (6) Best Buddies implements programs that ‘‘(B) MEASURABLE GOALS.—A description of lish positive attitudes about people with in- will positively impact more than 700,000 indi- specific measurable annual benchmarks and tellectual disabilities; viduals in 2013. long-term goals and objectives to be ‘‘(3) build community engagement through (7) The Best Buddies Middle Schools pro- achieved through specified activities carried sports and related activities; and gram matches middle school students with out with the grant, contract, or cooperative ‘‘(4) promote the extraordinary gifts and intellectual disabilities with other middle agreement, which specified activities shall contributions of people with intellectual dis- school students and supports 1-to-1 friend- include, at a minimum, each of the following abilities. ships between them. activities: ‘‘SEC. 3. ASSISTANCE FOR SPECIAL OLYMPICS. (8) The Best Buddies High Schools program ‘‘(i) Activities to increase the full partici- matches high school students with intellec- ‘‘(a) EDUCATION ACTIVITIES.—The Secretary pation of people with intellectual disabilities of Education may award grants to, or enter tual disabilities with other high school stu- in athletics, sports and recreation, and other into contracts or cooperative agreements dents and supports 1-to-1 friendships between inclusive school and community activities with, Special Olympics to carry out each of them. with people without disabilities. the following: (9) The Best Buddies Colleges program ‘‘(ii) Education programs that dispel nega- ‘‘(1) Activities to promote the expansion of matches adults with intellectual disabilities tive stereotypes about people with intellec- Special Olympics, including activities to in- with college students and creates 1-to-1 tual disabilities. crease the full participation of people with friendships between them. ‘‘(iii) Activities to increase the participa- intellectual disabilities in athletics, sports (10) The Best Buddies e-Buddies program tion of people with intellectual disabilities and recreation, and other inclusive school supports e-mail friendships between people in Special Olympics outside of the United and community activities with people with- with and without intellectual disabilities. States and promote volunteerism on behalf out disabilities. (11) The Best Buddies Citizens program of such activities. ‘‘(2) The design and implementation of pairs adults with intellectual disabilities in ‘‘(iv) Health-related activities as described Special Olympics education programs, in- 1-to-1 friendships with other people in the in section 3(c). cluding character education and volunteer corporate and civic communities. ‘‘(b) ANNUAL REPORT.— programs that support the purposes of this (12) The Best Buddies Jobs program pro- ‘‘(1) IN GENERAL.—As a condition on receipt Act, that can be integrated into classroom motes the integration of people with intel- of any funds for a program under subsection instruction and community settings, and are lectual disabilities into the community (a), (b), or (c) of section 3, Special Olympics consistent with academic content standards. through supported employment. shall agree to submit an annual report at ‘‘(b) INTERNATIONAL ACTIVITIES.—The Sec- (13) The Best Buddies Ambassadors pro- retary of State, acting through the Assistant such time, in such manner, and containing gram educates and empowers people with in- Secretary of State for Educational and Cul- such information as the Secretary of Edu- tellectual disabilities to be leaders and pub- tural Affairs, may award grants to, or enter cation, Secretary of State, or Secretary of lic speakers in their schools, communities, into contracts or cooperative agreements Health and Human Services, as applicable, and workplaces. Best Buddies Ambassadors with, Special Olympics to carry out each of may require. prepares people with intellectual disabilities the following: ‘‘(2) CONTENT.—At a minimum, each annual to become active agents of change. ‘‘(1) Activities to increase the participa- report under this subsection shall describe— (14) Best Buddies Promoters empowers tion of people with intellectual disabilities ‘‘(A) the degree to which progress has been youth to become advocates for people with in Special Olympics outside of the United made toward meeting the annual bench- intellectual disabilities. Students who take States. marks and long-term goals and objectives part in Best Buddies Promoters are intro- ‘‘(2) Activities to improve the awareness described in the applications submitted duced to the disability rights movement and outside of the United States of the abilities under subsection (a); and the importance of inclusion through local of people with intellectual disabilities and ‘‘(B) demographic data about Special awareness events. the unique contributions that people with in- Olympics participants, including the number (b) PURPOSE.—The purposes of this title are tellectual disabilities can make to society, of people with intellectual disabilities served to— and to promote active support for sports pro- in each program referred to in paragraph (1). (1) provide support to Best Buddies to in- grams for people with intellectual disabil- ‘‘SEC. 5. AUTHORIZATION OF APPROPRIATIONS. crease participation in and public awareness ities. ‘‘There are authorized to be appropriated— about Best Buddies programs that serve peo- ‘‘(c) HEALTHY ATHLETES.— ‘‘(1) for grants, contracts, or cooperative ple with intellectual disabilities; ‘‘(1) IN GENERAL.—The Secretary of Health agreements under section 3(a), $9,500,000 for (2) dispel negative stereotypes about peo- and Human Services may award grants to, or fiscal year 2014, and such sums as may be ple with intellectual disabilities; and

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00095 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1232 CONGRESSIONAL RECORD — SENATE March 6, 2013 (3) promote the extraordinary contribu- volved in the decisions surrounding the tional Park Service. The Commission tions of people with intellectual disabilities. Park. Citizen involvement in the gov- ensures that the public is engaged in SEC. 202. ASSISTANCE FOR BEST BUDDIES. ernmental process is a hallmark of our the numerous processes surrounding (a) EDUCATION ACTIVITIES.—The Secretary democracy and the C&O Canal National operational policy and infrastructure of Education may award grants to, or enter Historical Park Advisory Commission maintenance and restoration projects into contracts or cooperative agreements Act exemplifies the goal of ensuring with, Best Buddies to carry out activities to on the C&O Canal National Historic promote the expansion of Best Buddies, in- the public’s role in government deci- Park. The Commission plays a vital cluding activities to increase the participa- sion making. consultation and planning role for park tion of people with intellectual disabilities The importance of the Commission is activities and operations. The coopera- in social relationships and other aspects of intrinsically tied to the uniqueness of tion that has developed between the community life, including education and em- the C&O Canal National Historical Commission and the National Park ployment, within the United States. Park. The Park covers an area of 20,000 Service helps tie the Park to its com- (b) LIMITATIONS.—Amounts appropriated to acres winding North and West along munities. The Commission serves a carry out this title may not be used for di- the Potomac River from the heart of rect treatment of diseases, medical condi- purely advisory function and does not tions, or mental health conditions. Georgetown’s old industrial district in have the authority to make binding (c) RULE OF CONSTRUCTION.—Nothing in Washington D.C. to Cumberland, MD park policy. nestled in the valleys and mountains of this title shall be construed to limit the use The Commission was first established of non-Federal funds by Best Buddies. Western Maryland. The Park’s watered as part of the 1971 Chesapeake and Ohio SEC. 203. APPLICATION AND ANNUAL REPORT. canal, contiguous towpath, popular Canal Development Act sponsored by (a) APPLICATION.— among cyclists, backpackers, day Rep. Gilbert Gude, R–MD. Every ten (1) IN GENERAL.—To be eligible for a grant, hikers and runners, hundreds of his- years, a bill like mine comes before contract, or cooperative agreement under toric structures and towns like Han- Congress, when the 10-year extension of section 202(a), Best Buddies shall submit an cock, Hagerstown, Brunswick, Harpers application at such time, in such manner, the Commission’s authorization ex- Ferry, Williamsport and Sharpsburg and containing such information as the Sec- pires. Three times over a 40-year period that grew during the Canal’s heyday, retary of Education may require. extension bills have passed by unani- all tell the story of how the C&O Canal (2) CONTENT.—At a minimum, an applica- mous consent and without controversy. once served as a crucial East/West com- tion under this subsection shall contain the My bill is another 10-year extension of following: mercial link. The Park also preserves the Advisory Commission’s authoriza- (A) A description of activities to be carried pristine views of the Potomac River, tion and makes no changes to the Com- out under the grant, contract, or cooperative evocative of the C&O Canal’s working mission’s authority. Legislative prece- agreement. days. At its widest points, the C&O (B) Information on specific measurable dent has never set an authorization Canal National Historical Park spans goals and objectives to be achieved through amount for the Commission, but the less than two-tenths of a mile across activities carried out under the grant, con- Commission has always functioned at a and in many areas directly abuts tract, or cooperative agreement. nominal cost. (b) ANNUAL REPORT.— neighboring commercial and residen- (1) IN GENERAL.—As a condition of receipt tial properties bordering the Park. The General Services Administra- of any funds under section 202(a), Best Bud- During the commercial operation of tion’s Federal Advisory Commissions dies shall agree to submit an annual report the C&O Canal, these towns were local Act database determined that the C&O at such time, in such manner, and con- commercial centers where area farmers Canal Advisory Commission’s expenses taining such information as the Secretary of totaled $33,199 for fiscal year 2010. All Education may require. and tradesman utilized the canal boats expenses came out of the National (2) CONTENT.—At a minimum, each annual to deliver their goods to market. report under this subsection shall describe Today, the hospitality and tourism in- Park Service’s general operating budg- the degree to which progress has been made dustries of these communities thrive et. Expenses covered the cost of travel toward meeting the specific measurable upon the C&O Canal National Histor- for commission members, $295, Federal goals and objectives described in the applica- ical Park’s popularity and are integral staff time, $28,074, and miscellaneous tions submitted under subsection (a). to enhancing the park user experience. expenses, $4,830, like meeting space, SEC. 204. AUTHORIZATION OF APPROPRIATIONS. Whether it is a hotel or Bed and Break- printing, supplies and website mainte- There are authorized to be appropriated to fast to spend the night in, a restaurant nance. the Secretary of Education for grants, con- or diner to grab a meal, stores to shop tracts, or cooperative agreements under sec- The National Park System is a show- tion 202(a), $4,000,000 for fiscal year 2014 and in and perhaps stock up on camping case of America’s natural and histor- such sums as may be necessary for each of provisions, boathouses to rent a canoe ical treasures. So much of the National the 4 succeeding fiscal years. for the afternoon, bike shops to service Park System’s success is rooted in the a flat tire or make repairs to your bike citizen stewardship projects and the in- By Mr. CARDIN (for himself and or any of the myriad of goods and serv- volvement of caring citizens and com- Ms. MIKULSKI): ices park visitors may need, the com- munity leaders. Like so many of our S. 476. A bill to amend the Chesa- munities along the C&O Canal are as National Parks the C&O Canal Na- peake and Ohio Canal Development Act important to the Park user experience tional Historical Park has an extensive to extend to the Chesapeake and Ohio as the Park’s users are to maintaining backlog of maintenance and repair Canal National Historical Park Com- their businesses. projects. The Commission plays a crit- mission; to the Committee on Energy In 2009, more than 3.75 million people ical role in helping keep these projects and Natural Resources. visited the C&O Canal National Histor- moving forward and assisting the Na- Mr. CARDIN. Mr. President, today I ical Park. To put it in perspective, in tional Park Service with their comple- am proud to reintroduce legislation to 2009, more people visited this historic tion because there is recognition of the support greater public involvement in treasure than the number of people shared responsibility between the Park the administration of one of Mary- who visited Yellowstone, Yosemite, the Service and the Commission about the land’s most treasured National Histor- Everglades or Shenandoah National importance of continuing to make the ical Parks. The Chesapeake and Ohio Park. Much of the C&O Canal National Park a desirable tourism and outdoor Canal National Historical Park Advi- Historical Park’s success is attrib- recreation destination. The Commis- sory Commission Act ensures that the utable to the positive relationship that sion provides that bridge between the 1 communities located along the 184 ⁄2 has developed over time between the government and public. I urge my col- mile-long C&O Canal National Histor- National Park Service and the local leagues to support this bill. ical Park have a voice with the Na- community leaders that span the tional Park Service regarding decisions length of the Park. The Park’s Com- Mr. President, I ask unanimous con- affecting the administration of the mission has greatly facilitated this re- sent that the text of the bill be printed Park. The Commission keeps the peo- lationship. in the RECORD. ple and small businesses most affected The Commission provides the vital There being no objection, the text of by the operation of the C&O Canal Na- link between the affected communities the bill was ordered to be printed in tional Historical Park informed and in- that the Park runs through and the Na- the RECORD, as follows:

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00096 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1233 S. 476 is appropriate only on a tribe’s histor- ments are a sign of growth and eco- Be it enacted by the Senate and House of Rep- ical lands, and voters endorsed this nomic development. resentatives of the United States of America in bargain with 65 percent of the vote. But a 2006 report, titled Gambling in Congress assembled, But fast-forward 12 years and this the Golden State, paints a different SECTION 1. CHESAPEAKE AND OHIO CANAL NA- agreement is being put to the test. picture. The report compiled a com- TIONAL HISTORICAL PARK COMMIS- More than 100 new Las Vegas style ca- SION. prehensive body of research on the ef- Section 6(g) of the Chesapeake and Ohio sinos have opened in the State in the fects of casinos on their surrounding Canal Development Act (16 U.S.C. 410y–4(g)) last 12 years. communities. The results were stag- is amended by striking ‘‘40’’ and inserting Unfortunately things aren’t slowing gering. ‘‘50’’. down; the Department of the Interior New casinos are associated with a 10 has approved three extremely con- percent increase in violent crime and a By Mrs. FEINSTEIN: troversial new casinos just last year, 10 percent increase in bankruptcy S. 477. A bill to amend the Indian some nowhere near the tribe’s aborigi- rates. Gaming Regulatory Act to modify a nal territory or current reservation. New casinos are also associated with provision relating to gaming on land When given the opportunity voters an increase in law enforcement expend- acquired after October 17, 1988; to the have rejected the idea of reservation itures of $15.34 per resident. Committee on Indian Affairs. shopping. Two years ago in Richmond, California spends an estimated $1 bil- Mrs. FEINSTEIN. Mr. President, I CA, a tribe proposed taking land into lion to deal with problem-gamblers and rise today to reintroduce the Tribal trust at Point Molate to open a 4,000- pathological-gamblers, 75 percent of Gaming Eligibility Act. slot-machine mega-casino. Proponents which identify Indian casinos as their This bill sets forth what I believe is touted it as a major economic engine primary gambling preference. a very reasonable, moderate standard for a depressed area. The report confirms what many local for where tribes are allowed to open But the voters of Richmond knew the elected officials and community activ- gaming establishments. reality was far different. The project ists already know: casinos come at a The standard is simple: a tribe must threatened to burden state and local tremendous cost. demonstrate that it has a modern and government services, and it threatened Some have tried to mischaracterize an aboriginal connection to the land to irreparably change the character of my legislation. They have said it limits before it can open a gaming establish- the community. the sovereignty of tribes or it destroys ment on it. So Richmond voters made it clear the ability to undertake economic de- The new standard is needed because how they felt by overwhelmingly re- velopment. too many tribes in California and jecting the advisory measure by a mar- But I am here today to say that noth- across the nation are ‘‘reservation gin of 58 to 42. Voters also elected two ing could be farther from the truth. shopping’’. They look for a profitable new city council members who strong- The bill preserves the right of tribes casino location, and then seek to put ly opposed the casino. It was an unam- to acquire trust land in any location, that land in trust regardless of their biguous rejection of this reservation provided they secure the approval of historical ties to the area. shopping proposal. the Governor and meet the strict two- To be clear, most tribes do not fit Fortunately the Department of the part determination standards. this mold. Most play by the rules and Interior rejected the misguided Point The bill puts no limits on where a acquire land in appropriate locations. Molate proposal. But voters in Yuba tribe can acquire land for any purpose But as wealthy Las Vegas casino in- County were not so lucky. other than gaming. terests search for ways to expand their In 2005, Yuba County voters had an Because the fact of the matter is that gaming syndicates, the problem is get- opportunity to weigh in on a casino in most casinos are appropriately placed, ting worse. These syndicates have no this mostly rural and suburban North- on historical tribal lands, and there is interest in preserving native cultures ern California community. By a margin no need to argue about the legitimacy and they have little interest in pur- of 52–48, voters rejected the proposal. of these establishments. suing other forms of economic develop- Many cited concerns about crime as a My legislation only deals with those ment; so they also have little interest reason they opposed the project. proposals that are truly beyond the in limiting casinos to bone fide histor- But after the dust settled, the De- scope of Congressional intent when the ical tribal lands. partment of the Interior decided to Indian Gaming Regulatory Act was The tragic part is that these casinos move forward with the project anyway. passed in 1988. are going up despite objections from Despite the fact that voters rejected it I look forward to working with my communities and other Native Amer- and only one of the 21 public officials colleagues on this important issue. ican tribes. That is why I am intro- in the area polled on the issue ex- ducing the Tribal Gaming Eligibility pressed support for the project. By Mr. GRASSLEY (for himself, Act. Moreover, the Department’s claim Mr. CHAMBLISS, and Mr. ROB- This legislation addresses the prob- that even one local official supported ERTS): lems that arise from off reservation ca- the project is dubious. The so-called S. 478. A bill to clarify that the rev- sinos by requiring that tribes meet two support is based on a Memorandum of ocation of an alien’s visa or other docu- simple conditions before taking land Understanding the County entered into mentation is not subject to judicial re- into trust for gaming: prior to the advisory election. The view; to the Committee on the Judici- First the tribe must demonstrate a county never offered a letter of support ary. ‘‘substantial direct modern connection when consulted and still has not to this Mr. GRASSLEY. Mr. President, back to the land.’’ day. in 2003, the Government Accountability Second, the tribe must demonstrate a As a former mayor, I know the finan- Office, the investigative arm of Con- ‘‘substantial direct aboriginal connec- cial pressures that local governments gress, issued a report that revealed tion to the land.’’ face, especially in these tough times. that suspected terrorists could stay in Simply put, tribes must show that The temptation to support large casi- the country after their visas had been both they, and their ancestors, have a nos, with the promises of hundreds of revoked on grounds of terrorism be- connection to the land in question. construction jobs, can be strong. cause of a legal loophole in the wording California voters thought they set- But I also know the heavy price that of revocation papers. The GAO shed tled the question of reservation shop- society pays for the siren song of gam- light on a serious problem in our visa ping in 2000 when Proposition 1A au- bling. This price includes addiction and policies that posed a threat to our na- thorized the Governor to negotiate crime, strained public services and in- tional security. The GAO found that gambling compacts with tribes, pro- creased traffic congestion. many individuals were granted visas, vided that gaming only occurred ‘‘on Some Indian gaming proponents and but later, the FBI and intelligence Indian lands.’’ their out of state gaming syndicate community suspected ties of terrorism. The words ‘‘on Indian lands’’ were backers would have us believe that The FBI didn’t share the derogatory in- critical. This made clear that gaming these off-reservation gaming establish- formation with our consular officers in

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00097 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1234 CONGRESSIONAL RECORD — SENATE March 6, 2013 time. Consular officers had one tool at they shouldn’t be here in the first ers and their workers by eliminating their disposal, and that was to revoke place. any ambiguity about a certified PEOs the visas. But, many of the individuals Secretary Chertoff, former Secretary ability to assume employment tax re- had made it to the United States. of the Department of Homeland Secu- sponsibility. It further implements What the GAO found was that even rity agreed that the policy needed to be safeguards for the certified PEOs small though the visas were revoked, immi- changed. When Secretary, he said, business clients. This will give small gration officials couldn’t do a thing The fact is that we can prevent someone businesses peace of mind that their about it because the revocation didn’t who’s coming in as a guest. We can say, human resources and employment tax go into effect until after the alien de- ‘‘You can’t come in overseas,’’ but once they responsibilities are taken care of so parted. They were handicapped from lo- come in, if they abuse their terms and condi- they can focus on their core business cating the visa holders and deporting tions of their coming in, we have to go and create more jobs. them. Today, our immigration agents through a cumbersome process. That strikes I urge my colleagues to support this me as not particularly sensible. People who common sense legislation. may not be able to locate the indi- are admitted as guests like guests in my vidual even if they could deport them. house—if the guest misbehaves, I just tell By Mrs. FEINSTEIN (for herself, The GAO report opened our eyes and them to leave; they don’t get to go to court showed us how revocations were not over it. Mrs. BOXER, Mr. LAUTENBERG, Mr. SANDERS, and Mr. TESTER): being used effectively, and how terror- What’s more, allowing judicial re- ists could exploit a loophole to stay in S. 482. A bill to amend the Public view of revoked visas, especially on Health Service Act to provide protec- the country. Since the GAO report was terrorism grounds, could jeopardize the issued, I have attempted to plug this tions for consumers against excessive, classified intelligence that led to the unjustified, or unfairly discriminatory hole in the system. Today I am reintro- revocation. It can force agencies such increases in premium rates; to the ducing a bill to give the Department of as the FBI and CIA to be hesitant to Committee on Health, Education, Homeland Security a critical tool that share information. Why would our in- Labor, and Pensions. allows the Secretary to issue revoca- telligence community share informa- Mrs. FEINSTEIN. Mr. President, we tions and remove aliens from the tion with the State Department if they have made great strides in improving United States without the hurdles they knew State wouldn’t revoke a visa the accountability of health insurance currently face. when the alien is in the U.S.? Current companies and protecting consumers Let me elaborate. Under current law, law could be reversing our progress on from egregious practices. However, de- visas approved or denied by consular information sharing. Intelligence offi- spite the progress we have made, many officers abroad are non-reviewable. We cials need to share information with States still lack the ability to regulate give our consular officers great lati- immigration and consular officers to excessive health insurance rate in- tude to protect the country and make prevent terrorists from entering the creases. a determination if an applicant is eligi- United States and to impede their mo- Health insurance premiums in the in- ble for admission into the United bility. dividual and small group market con- States. This is known as consular non- My bill would give the U.S. Govern- tinue to grow beyond the rate of med- reviewability. In 1950, the U.S. Su- ment the ability to expedite the depor- ical inflation. The Affordable Care Act preme Court, in Knauff v. tation of suspected terrorists by apply- has brought greater scrutiny to the Shaughnessy, 338 U.S. 537, determined ing the same ‘‘non-reviewability’’ market and we’ve seen some great that ‘‘it is not within the province of standard for revocation decisions. It progress. In fact, the number of re- any court, unless expressly authorized would treat revocations similar to visa quested increases in health insurance by law, to review the determination of denials. My bill gives the Federal Gov- premiums beyond 10 percent comprised the political branch of the Government ernment the ability to deport an alien 75 percent of rate filings in 2010, and to exclude a given alien.’’ who has already entered the United that has declined to 34 percent in 2012. Justice Minton, in his decision, stat- States but shouldn’t have ever been This is a large step forward but with- ed, ‘‘At the outset we wish to point out granted a visa. out closing the remaining loophole not that an alien who seeks admission to Terrorists took advantage of our sys- all consumers will be able to benefit this country may not do so under any tem before 9/11. We can’t let that hap- from protection from unreasonable claim of right. Admission of aliens to pen again. We should not allow poten- rate increases. Health insurance com- the United States is a privilege granted tial terrorists and others who act panies will continue to do what they by the sovereign United States Govern- counter to our laws to remain on U.S. have done for far too long: put their ment. Such privilege is granted to an soil and run to the courts and seek re- profits ahead of people. Rapidly esca- alien only upon such terms as the lief from deportation. We need to en- lating insurance costs strain busi- United States shall prescribe. It must sure that the government has all the nesses, families, and individuals. be exercised in accordance with the tools at its disposal to keep the home- Currently, 15 States still have little procedure which the United States pro- land safe. or no authority to block or modify un- vides.’’ I urge my colleagues to support my reasonable rate increases in the indi- The doctrine of non-reviewability is a bill. vidual and small group markets. This long-standing one that allows the De- means that even when the state’s in- partment of State to keep foreign na- By Mr. GRASSLEY (for himself, surance regulators find a rate increase tionals from entering the United Mr. NELSON, Mr. PORTMAN, and to be excessive, they do not have the States. But, the doctrine should be ap- Mr. PRYOR): ability to block or modify the increase. plied in instances when a person is S. 479. A bill to amend the Internal The Health Insurance Rate Review Act granted a visa, enters in the country, Revenue Code of 1986 to clarify the em- creates a Federal fallback for States and the Government subsequently re- ployment tax treatment and reporting currently lacking this authority. This vokes that visa. of wages paid by professional employer will create parity across the country There are some national security im- organizations, and for other purposes; and give greater consistency of review plications at stake. The ability to de- to the Committee on Finance. and accountability for insurance com- port an alien on U.S. soil with a re- Mr. GRASSLEY. Mr. President, panies seeking to raise rates beyond voked visa is nearly impossible today if today I am reintroducing the Small what is reasonable. the alien is given the opportunity to Business Efficiency Act with my col- This legislation is a simple, common- appeal the revocation. So, in effect, the leagues Senators NELSON, PORTMAN, sense solution: for States where the in- State Department doesn’t use their au- and PRYOR. Many small businesses rely surance commissioner does not have or thority to revoke. In fact, I am told on Professional Employer Organiza- use authority to block unreasonable they aren’t doing it at all when the tion, PEOs, and to handle many of rate increases, the Secretary of Health alien, even a potential terrorist, is in their human resources responsibilities. and Human Services can do so. the country. They need a change so The Small Business Efficiency Act will Affordability is vital to insuring ac- that foreign nationals are not able to provide an important layer of certainty cess to quality health care. A 2010 sur- freely roam our communities when and protection for small business own- vey by the Commonwealth Fund found

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00098 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1235 that 70 percent of people with a health In 2011, the Connecticut Insurance file, an NCA designation will boost problem found it difficult or impossible Department found an increase of near- tourism and increase business opportu- to find affordable coverage on the indi- ly 13 percent by Anthem Blue Cross nities in the region’s gateway commu- vidual market. This problem goes be- and Blue Shield to be excessive, and ap- nities. The Outdoor Industry Associa- yond the increased cost of overall med- proved a four percent increase instead. tion has estimated that outdoor recre- ical care. From the year 2000 to 2010, Also in 2011, some North Dakota con- ation supports 732,000 jobs and contrib- average premiums for family coverage sumers on the individual health insur- utes $85.4 billion annually in consumer increased by 117 percent, compared to ance market were facing a nearly 30 spending to California’s economy, un- medical inflation which rose close to 49 percent increase before state regu- derscoring the immense potential of percent. lators stepped in and decreased the pro- sites such as the proposed Berryessa Insurance premiums make up a high- posed hikes by almost half. Snow Mountain NCA to drive local eco- er percentage of household income I strongly believe that we need to nomic growth. Additionally, the region than ever before, increasing around take action to strengthen the law so will become recognized by more people three times faster than wages are. This all consumers get the protection of ef- as uniform signage and publications means that more and more families fective health insurance rate review. I are created to reach more diverse audi- have to choose between health care and appreciate working with Representa- ences, allowing them to learn more daily living expenses, saving for retire- tive SCHAKOWSKY, who is sponsoring about this beautiful area. ment, and education. This is unaccept- the House companion bill. Creation of this proposed National able, and more must be done to protect I urge my colleagues to join me in Conservation Area has strong support consumers. supporting the Health Insurance Rate from a large coalition of local govern- The Affordable Care Act made impor- Review Act to stand up for American ments, elected officials, business own- tant steps forward in defining the rate families struggling to pay for health ers, landowners, farmers, private indi- review process and making rate in- coverage. I look forward to working viduals, and many conservation and creases and reviews public information. with my colleagues on this important recreation groups. This bill is the cul- This has improved transparency but issue. mination of a grassroots effort of con- falls short of creating a strong rate re- cerned citizens taking the initiative to view system in all States, and relies By Mrs. BOXER: care for the beautiful areas in their too heavily on the notion that public S. 483. A bill to designate the communities, and I am proud to sup- disclosure of rates will cause insurance Berryessa Snow Mountain National port their work and commitment. companies to change their behavior Conservation Area in the State of Cali- The Berryessa Snow Mountain region every time they should. fornia, and for other purposes; to the deserves national status and recogni- I believe there needs to be a Federal Committee on Energy and Natural Re- tion, and I urge my colleagues to join fallback in states that lack the legal sources. me in supporting this effort. authority, capacity, or resources to Mrs. BOXER. Mr. President, I am conduct strong rate review. pleased to introduce the Berryessa By Mr. INHOFE (for himself, Mr. In some States, like California, com- Snow Mountain National Conservation VITTER, Mr. COBURN, Mr. ENZI, panies are not required to go through Area Act. Congressman MIKE THOMP- Mrs. FISCHER, Mr. BLUNT, and prior approval before rate increases go SON and I introduced this legislation in Mr. GRASSLEY): into effect. This means that when the the 112th Congress, and I am glad to S. 484. A bill to amend the Toxic Sub- California Insurance Commissioner continue working on this effort with stances Control Act relating to lead- finds rate increases to be unreasonable him in this new Congress. based paint renovation and remodeling and excessive, he has no authority to This important legislation designates activities; to the Committee on Envi- actually stop or modify the increases close to 350,000 acres of public lands in ronment and Public Works. to consumers. California is facing dou- Lake, Mendocino, Napa, Solano, and Mr. INHOFE. Mr. President, I rise ble digit rate hikes again this year and Yolo Counties as the Berryessa Snow today to introduce the Lead Exposure this legislation would help prevent Mountain National Conservation Area, Reduction Amendments Act of 2013. such excessive increases. or NCA. The area is a haven for hiking, In April 2010, an EPA rule governing Earlier this year the California In- camping, rafting, and horseback riding, work done in homes constructed before surance Commissioner found a rate in- and is home to a diverse array of wild- crease by Anthem Blue Cross to be un- 1978 took effect. The aim of this rule is life including black bears and bald ea- reasonable and the company decided to to protect at-risk populations, defined proceed anyway. This affected around gles. as pregnant women and children under My bill does not add any new lands to 250,000 small business policy holders the age of six, from harmful lead paint who saw an increase of around 10.6 per- the Federal Government, the lands in- dust particles that may be generated cent, and when combined with previous cluded in this NCA are already man- during home construction, rehabilita- increases the average rate hike over aged by the Bureau of Land Manage- tion, and remodeling work. While lead two years reaches 19.5 percent. ment, the Bureau of Reclamation, and paint was generally discontinued from In 2012, proposed rate increases the U.S. Forest Service and it does not in-home use in the 1960s and 1970s, the across nine States by the John Alden apply to state or private lands. A Na- rule applies to all homes built before Life Insurance Company and Time In- tional Conservation Area designation 1978 and requires all contractors to be surance Company were found to be un- will require these three agencies to de- certified by the EPA and be supervised reasonable but went forward anyway. velop a multi-agency management plan by an EPA certified renovator while These increases varied from a 12 per- in consultation with stakeholders and following rigorous and costly safe lead cent increase in Louisiana to a 24 per- the public, improving coordination on work practices. cent increase in Wisconsin. These in- wildlife preservation, habitat restora- Some of these requirements include creases in the individual and small tion, and recreational opportunities. sealing off the area where the renova- group market also affected Arizona, Creation of the NCA will also help the tion is occurring; removing all objects Idaho, Missouri, Montana, Nebraska, agencies take a more coordinated ap- from the work area; covering any po- Virginia, and Wyoming. proach to preventing and fighting rous work areas with smooth, clean- In some States, insurance commis- wildfires, combating invasive species able areas; using special tools that sioners already have this authority and and water pollution, and stopping the have emission exhaust controls; are using it to protect consumers. This spread of illegal marijuana growth. vacuuming all items, including peo- bill doesn’t touch what they are doing. By unifying these individual places ple’s clothes, who leave the work space; In New York, because state regu- under one banner, my bill helps put the and generally cleaning the work area lators have the authority to modify Berryessa Snow Mountain region on to ensure there is no dust following rates, the average individual market the map as a destination for new visi- completion of the job. increase for 2013 is four and a half per- tors. This region is one of the most bio- I believe everyone in this chamber cent instead of the initial request of a logically diverse, yet least known re- stands strongly behind the intent of nine and a half percent increase. gions of California. By raising its pro- the rule, which is to protect children

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00099 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1236 CONGRESSIONAL RECORD — SENATE March 6, 2013 and pregnant women from the harmful They would be a solution in search of a ‘‘(i) 1.0 milligrams per centimeter squared; effects of lead. With 20 kids and problem. EPA needs to do its due dili- or grandkids, I appreciate the importance gence and determine whether there ‘‘(ii) 0.5 percent by weight. of the rule, and the potential it has to would be any meaningful health bene- ‘‘(B) TARGET HOUSING.—With respect to paint or other surface coatings on target further decrease lead exposure. But fits from extending this rule to other housing, the term ‘lead-based paint’ means this rule does add significant cost to areas. paint or other surface coatings that contain the completion of renovation jobs and In closing, I want to reiterate my lead in excess of the lower of— adds significant regulatory hurdles to dedication to the cause of protecting ‘‘(i) the level described in subparagraph many small business owners in situa- the health of vulnerable populations, (A); or tions where it may not at all be nec- and particularly pregnant women and ‘‘(ii) a level established by the Secretary of essary. children. But it is important for EPA’s Housing and Urban Development under sec- Fortunately, the original rule in- regulations to be pursued in a way that tion 302(c) of the Lead-Based Paint Poisoning cluded an opt-out provision for home- Prevention Act.’’; make sense, and that is what my bill (5) by inserting after paragraph (13) (as re- owners who did not have any at-risk intends to do. This is an ongoing goal designated by paragraph (2)) the following: individuals living in their homes. Pro- of mine as a senior member of the En- ‘‘(14) POSTABATEMENT CLEARANCE TEST- vided the contractor made them aware vironment and Public Works Com- ING.—The term ‘postabatement clearance of the potential lead-paint risks, the mittee. testing’ means testing that— homeowner could give the contractor Mr. President, I ask unanimous con- ‘‘(A) is carried out upon the completion of permission to carry out the job with- sent that the text of the bill be printed any lead-based paint activity to ensure out following the EPA’s lead safe work in the RECORD. that— practices. This makes sense because There being no objection, the text of ‘‘(i) the reduction is complete; and the bill was ordered to be printed in ‘‘(ii) no lead-based paint hazards remain in the health issues caused by renovation the area in which the lead-based paint activ- work in homes with lead paint are the RECORD, as follows: ity occurs; and minor for adults and older children S. 484 ‘‘(B) includes a visual assessment and the who are not members of the at-risk Be it enacted by the Senate and House of Rep- collection and analysis of environmental population. resentatives of the United States of America in samples from an area in which lead-based But in July 2010, just three months Congress assembled, paint activities occur.’’; and after the rule took effect, the EPA re- SECTION 1. SHORT TITLE. (6) by inserting after paragraph (15) (as re- moved this opt-out provision. By doing This Act may be cited as the ‘‘Lead Expo- designated by paragraph (2)) the following: sure Reduction Amendments Act of 2013’’. ‘‘(16) RENOVATION.—The term ‘renovation’ this, EPA more than doubled the num- has the meaning given such term in section ber of homes requiring safe work prac- SEC. 2. DEFINITIONS. Section 401 of the Toxic Substances Con- 745.83 of title 40, Code of Federal Regula- tices and increased the economy-wide trol Act (15 U.S.C. 2681) is amended— tions, as in effect on the date of enactment cost of compliance by well more than (1) in paragraph (1)— of this paragraph. $336 million by EPA’s own estimate, (A) by redesignating subparagraphs (A) and ‘‘(17) RENOVATION AND REMODELING REGULA- which is significantly less than reality. (B) as clauses (i) and (ii), respectively, and TION.—The term ‘renovation and remodeling Further, EPA has failed to meet the indenting the clauses appropriately; regulation’ means a regulation promulgated requirements of its own rule because (B) in the first sentence, by striking ‘‘The under section 402(a) and revised pursuant to there are no commercially available term’’ and inserting the following: section 402(c)(3)(A), as such regulation is ap- ‘‘(A) IN GENERAL.—The term’’; plied to renovation or remodeling activities lead paint test kits. Test kits would in target housing, public buildings con- allow contractors to see whether work (C) by striking ‘‘Such term includes—’’ and inserting the following: structed before 1978, and commercial build- spaces include any lead paint, and if ‘‘(B) INCLUSIONS.—The term ‘abatement’ ings.’’. none is detected then the contractor includes—’’; and SEC. 3. LEAD-BASED PAINT ACTIVITIES TRAINING would not have to follow lead safe work (D) by adding at the end the following: AND CERTIFICATION. practices, which makes sense. Unfortu- ‘‘(C) EXCLUSIONS.—The term ‘abatement’ Section 402(c) of the Toxic Substances Con- nately, the test kits that are currently does not include any renovation, remodeling, trol Act (15 U.S.C. 2682(c)) is amended— available produce 60-percent false or other activity— (1) by striking paragraph (2) and inserting positives, requiring many homeowners ‘‘(i) the primary purpose of which is to re- the following: to pay significantly more for home re- pair, restore, or remodel target housing, pub- ‘‘(2) STUDY OF CERTIFICATION.— lic buildings constructed before 1978, or com- ‘‘(A) IN GENERAL.—Not later than 1 year modeling work, even though there may mercial buildings; and prior to proposing any renovation and re- not be any lead to protect them from. ‘‘(ii) that incidentally results in a reduc- modeling regulation after the date of enact- The bill I’m introducing today is sim- tion or elimination of lead-based paint haz- ment of the Lead Exposure Reduction ple. It would first require the EPA to ards.’’; Amendments Act of 2012, the Administrator restore the opt-out provision. If home- (2) by redesignating— shall conduct, submit to the Congress, and owners have no residents who are at- (A) paragraphs (4) through (12) as para- make available for public comment (after risk to lead paint contamination, then graphs (5) through (13); peer review) the results of, a study of the ex- they should be able to waive the regu- (B) paragraph (13) as paragraph (15); and tent to which persons engaged in various latory requirement. (C) paragraphs (14) through (17) and para- types of renovation and remodeling activi- graphs (18) through (21), respectively; ties in target housing, public buildings con- The bill will also suspend the rule for (3) by inserting after paragraph (3) the fol- structed before 1978, or commercial build- homes built after 1960 if the EPA does lowing: ings— not develop workable test kits, unless ‘‘(4) EMERGENCY RENOVATION.—The term ‘‘(i) are exposed to lead in the conduct of those homes include members of the ‘emergency renovation’ means a renovation such activities; and at-risk population. The bill would also or remodeling activity that is carried out in ‘‘(ii) disturb lead and create a lead-based provide a de minimis exemption for response to an event— paint hazard on a regular or occasional basis first-time paperwork violations against ‘‘(A) that is an act of God, as that term is in the conduct of such activities. contractors. The EPA has focused its defined in section 101(1) of the Comprehen- ‘‘(B) SCOPE AND COVERAGE.—Each study sive Environmental Response, Compensa- conducted under subparagraph (A) shall con- enforcement efforts on these violations tion, and Liability Act of 1980; or sider the risks described in clauses (i) and despite the fact that the contractors ‘‘(B) that if not attended to as soon as is (ii) of such subparagraph with respect to may be appropriately following safe practicable— each separate building type described in such lead practices. ‘‘(i) presents a risk to the public health or subparagraph, as the regulation to be pro- Finally, the bill prohibits EPA from safety; or posed would apply to each such building expanding this regulation to commer- ‘‘(ii) threatens to cause significant damage type.’’; cial and public buildings until it has to equipment or property.’’; (2) in paragraph (3)— completed a study to determine the (4) by striking paragraph (10) (as redesig- (A) in the first sentence by striking ‘‘With- risk of such practices. EPA is in the nated by paragraph (2)) and inserting the fol- in 4 years’’ and inserting the following: lowing: ‘‘(A) IN GENERAL.—Not later than 4 years’’; process of writing these regulations ‘‘(10) LEAD-BASED PAINT.— and even though it has not yet completed ‘‘(A) IN GENERAL.—The term ‘lead-based (B) by adding at the end the following: the corresponding study. If there is no paint’ means paint or other surface coatings ‘‘(B) EXEMPTION.—An emergency renova- risk, why would EPA issue regulations? that contain lead in excess of— tion shall be exempt from any renovation

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00100 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE March 6, 2013 CONGRESSIONAL RECORD — SENATE S1237 and remodeling regulation, and a person car- ‘‘(bb) publishes in the Federal Register no- than 15,000 volunteers, and more than 300 rying out an emergency renovation shall be tice of such recognition and of the date on supporting organizations involved in the an- exempt from any regulation promulgated which enforcement of the post-1960 building nual event; under section 406(b) with respect to the renovation and remodeling regulations will Whereas student volunteers at the Penn- emergency renovation. resume. sylvania State University annually raise ‘‘(C) PROHIBITION ON POSTABATEMENT ‘‘(iii) APPLICABILITY OF SUSPENSION.—The money and dance for 46 consecutive hours at CLEARANCE REQUIREMENT.—No renovation Administrator shall not suspend enforce- the Bryce Jordan Center, bringing energy and remodeling regulation may require ment of any post-1960 building renovation and excitement to the Pennsylvania State postabatement clearance testing.’’; and and remodeling regulation for the period de- University campus for the mission of con- (3) by adding at the end the following: scribed in clause (ii)(II) with respect to a res- quering pediatric cancer and promoting ‘‘(4) TARGET HOUSING OWNERS.— idential dwelling in which a pregnant woman awareness of the disease to thousands of in- ‘‘(A) IN GENERAL.—Not later than 60 days or child under the age of 6 resides. dividuals; after the date of enactment of this para- ‘‘(B) QUALIFYING TEST KIT.—In this sub- Whereas all THON activities support the graph, and subject to subparagraph (B), the section, the term ‘qualifying test kit’ means mission of the Four Diamonds Fund at Penn Administrator shall promulgate regulations a chemical test that— State Hershey Children’s Hospital, which to permit an owner of a residential dwelling ‘‘(i) can determine the presence of lead- provides financial and emotional support to that is target housing, who resides in such based paint, as defined in section 401(10)(A); pediatric cancer patients and their families residential dwelling, to authorize a con- ‘‘(ii) has a false positive response rate of 10 and funds research on pediatric cancer; tractor to forgo compliance with the require- percent or less; Whereas THON is the largest donor to the ments of a renovation and remodeling regu- ‘‘(iii) has a false negative response rate of Four Diamonds Fund at Penn State Hershey lation with respect to such residential dwell- 5 percent or less; Children’s Hospital each year, having raised ing. ‘‘(iv) does not require the use of off-site more than $100,000,000 since 1977, when the 2 ‘‘(B) WRITTEN CERTIFICATION.—The regula- laboratory analysis to obtain results; organizations first partnered; tions promulgated under subparagraph (A) ‘‘(v) is inexpensively and commercially Whereas, in 2013, THON set a new fund- shall require that an owner of a residential available; and raising record of $12,374,034.46, surpassing the dwelling that is target housing, who resides ‘‘(vi) does not require special training to previous record of $10,686,924.83, set in 2012; in such residential dwelling, may only au- use. Whereas THON— thorize a contractor to forgo compliance ‘‘(C) POST-1960 BUILDING RENOVATION AND RE- (1) has helped more than 2,000 families with the requirements of a renovation and MODELING REGULATION.—In this subsection, through the Four Diamonds Fund; remodeling regulation if the owner submits the term ‘post-1960 building renovation and (2) is helping to build a new Pediatric Can- to such contractor a written certification remodeling regulation’ means a renovation cer Pavilion at Penn State Hershey Chil- stating that— and remodeling regulation, as it applies to— dren’s Hospital; and ‘‘(i) the renovation or remodeling project ‘‘(i) target housing constructed after Janu- (3) has supported pediatric cancer research is to be carried out at the residential dwell- ary 1, 1960; that has caused some pediatric cancer sur- ing in which the owner resides; ‘‘(ii) public buildings constructed between vival rates to increase to nearly 90 percent; ‘‘(ii) no pregnant woman or child under the January 1, 1960 and January 1, 1978; and and age of 6 resides in the residential dwelling as ‘‘(iii) commercial buildings constructed Whereas THON has inspired similar organi- of the date on which the renovation or re- after January 1, 1960. zations and events across the United States, modeling project commences, or will reside ‘‘(6) APPLICABILITY OF CERTAIN PEN- including at high schools and institutions of in the residential dwelling for the duration ALTIES.—Any renovation and remodeling reg- higher education, and continues to encour- of such project; and ulation requiring the submission of docu- age students across the United States to vol- ‘‘(iii) the owner acknowledges that, in car- mentation to the Administrator shall pro- unteer and remain involved in great chari- rying out the project, such contractor will be vide— table causes in their communities: Now, exempt from the requirements of a renova- ‘‘(A) an exemption from an applicable pen- therefore, be it tion and remodeling regulation. alty for failure to comply with such require- Resolved, That the Senate— ‘‘(C) RESTRICTION.—A contractor may not ment for a person who— (1) congratulates the Penn State IFC/Pan- forgo compliance with the requirements of a ‘‘(i) is submitting the required documenta- hellenic Dance Marathon (commonly re- renovation and remodeling regulation pursu- tion for the first time; and ferred to as ‘‘THON’’) on its continued suc- ant to a written certification submitted ‘‘(ii) submits documentation that contains cess in support of the Four Diamonds Fund under subparagraph (B) if such contractor only de minimus or typographical errors, as at Penn State Hershey Children’s Hospital; has actual knowledge of a pregnant woman determined by the Administrator; and and or child under the age of 6 residing in the ‘‘(B) a process by which a person described (2) commends the Pennsylvania State Uni- residential dwelling as of the date on which in subparagraph (A) may resubmit the re- versity students, volunteers, and supporting the renovation or remodeling commences quired documentation. organizations for their hard work in orga- (and for the duration of such project). ‘‘(7) ACCREDITATION OF RECERTIFICATION nizing another record-breaking THON. ‘‘(D) LIMITATION OF CONTRACTOR LIABIL- COURSES.—The hands-on training require- f ITY.—The Administrator may not hold a con- ments required by subsection (a)(2)(D) shall tractor responsible for a misrepresentation not apply to any recertification course ac- credited by the Environmental Protection SENATE CONCURRENT RESOLU- made by the owner of a residential dwelling TION 6—SUPPORTING THE LOCAL in a written certification submitted under Agency that is otherwise required to be com- subparagraph (B), unless the contractor has pleted under this title by a person that is RADIO FREEDOM ACT actual knowledge of such a misrepresenta- certified to engage in renovation and remod- Mr. BARRASSO (for himself and Ms. eling activities.’’. tion. HEITKAMP) submitted the following ‘‘(5) TEST KITS.— f concurrent resolution; which was re- ‘‘(A) IN GENERAL.— ferred to the Committee on Finance: ‘‘(i) RECOGNITION.—The Administrator SUBMITTED RESOLUTIONS shall recognize for use under this title a S. CON. RES. 6 qualifying test kit, and publish in the Fed- Whereas the United States enjoys broad- eral Register notice of such recognition. SENATE RESOLUTION 68—CON- casting and sound recording industries that ‘‘(ii) SUSPENSION OF ENFORCEMENT OF CER- GRATULATING THE PENN STATE are the envy of the world, due to the sym- TAIN REGULATIONS.—If, not later than 1 year IFC/PANHELLENIC DANCE MARA- biotic relationship that has existed among after the date of enactment of this para- THON ON ITS CONTINUED SUC- those industries for many decades; graph, the Administrator does not recognize CESS IN SUPPORT OF THE FOUR Whereas, for more than 80 years, Congress a qualifying test kit under clause (i), the Ad- DIAMONDS FUND AT PENN has rejected repeated calls by the recording ministrator— STATE HERSHEY CHILDREN’S industry to impose a performance fee on ‘‘(I) shall publish in the Federal Register local radio stations for simply playing music notice of such failure to recognize a quali- HOSPITAL on the radio, as such a fee would upset the fying test kit; and Mr. CASEY (for himself and Mr. mutually beneficial relationship between ‘‘(II) except as provided in clause (iii), may TOOMEY) submitted the following reso- local radio and the recording industry; not enforce any post-1960 building renovation lution; which was referred to the Com- Whereas local radio stations provide free and remodeling regulation, with respect to a mittee on the Judiciary: publicity and promotion to the recording in- period beginning on the date that is 1 year dustry and performers of music in the form after the date of enactment of this paragraph S. RES. 68 of radio air play, interviews with performers, and ending on the date that is 6 months after Whereas the Penn State IFC/Panhellenic introduction of new performers, concert pro- the date on which the Administrator— Dance Marathon (commonly referred to as motions, and publicity that promotes the ‘‘(aa) recognizes for use under this title a ‘‘THON’’) is the largest student-run philan- sale of music, concert tickets, ring tones, qualifying test kit; and thropy in the world, with 710 dancers, more music videos, and associated merchandise;

VerDate Mar 15 2010 07:20 Oct 03, 2013 Jkt 029060 PO 00000 Frm 00101 Fmt 0624 Sfmt 0634 E:\RECORD13\RECFILES\MAR2013\S06MR3.REC S06MR3 bjneal on DSK5SPTVN1PROD with CONG-REC-ONLINE S1238 CONGRESSIONAL RECORD — SENATE March 6, 2013 Whereas committees in the Senate and the lic performance of sound recordings on a Senate on March 6, 2013, at 10 a.m. in House of Representatives have previously re- local radio station for broadcasting sound re- room 345 of the Cannon House Office ported that ‘‘the sale of many sound record- cordings over the air, or on any business for Building. ings and the careers of many performers such public performance of sound recordings. have benefitted considerably from airplay The PRESIDING OFFICER. Without f and other promotional activities provided by objection, it is so ordered. both noncommercial and advertiser-sup- AUTHORITY FOR COMMITTEES TO f ported, free over-the-air broadcasting’’; MEET Whereas local radio broadcasters provide ORDERS FOR THURSDAY, MARCH COMMITTEE ON HOMELAND SECURITY AND tens of thousands of hours of essential local 7, 2013 news and weather information during times GOVERNMENTAL AFFAIRS of national emergencies and natural disas- Mr. LEAHY. Mr. President, I ask Mr. DURBIN. Mr. President, I ask ters, such as on September 11, 2001, and dur- unanimous consent that the Com- unanimous consent that when the Sen- ing Hurricanes Katrina and Rita, as well as mittee on Homeland Security and Gov- ate completes its business today, it ad- public affairs programming, sports, and hun- ernmental Affairs be authorized to journ until 10 a.m. on Thursday, March dreds of millions of dollars worth of time for meet during the session of the Senate 7, 2013; that following the prayer and public service announcements and local fund pledge, the morning hour be deemed raising efforts for worthy charitable causes, on March 6, 2013, at 10 a.m. to conduct all of which are jeopardized if local radio sta- a hearing entitled ‘‘The Department of expired, the Journal of proceedings be tions are forced to divert revenues to pay for Homeland Security at 10 Years: A approved to date, the time for the two a new performance fee; Progress Report on Management.’’ leaders be reserved for their use later Whereas there are many thousands of local The PRESIDING OFFICER. Without in the day, and following any leader re- radio stations that will suffer severe eco- objection, it is so ordered. marks, the Senate resume executive nomic hardship if any new performance fee is COMMITTEE ON THE JUDICIARY session and consideration of the Bren- imposed, as will many other small businesses Mr. LEAHY. Mr. President, I ask nan nomination; further, that the Sen- that play music including bars, restaurants, ate recess from 12:30 p.m. until 2 p.m. retail establishments, sports and other en- unanimous consent that the Com- tertainment venues, shopping centers, and mittee on the Judiciary be authorized to allow for caucus meetings. transportation facilities; and to meet during the session of the Sen- The PRESIDING OFFICER. Without Whereas the hardship that would result ate on March 6, 2013, at 9:30 a.m., in objection, it is so ordered. from a new performance fee would hurt busi- room SD–226 of the Dirksen Senate Of- f nesses in the United States, and ultimately fice Building, to conduct a hearing en- the consumers in the United States who rely ADJOURNMENT UNTIL 10 A.M. on local radio for news, weather, and enter- titled ‘‘Oversight of the U.S. Depart- tainment, and such a performance fee is not ment of Justice.’’ TOMORROW justified when the current system has pro- The PRESIDING OFFICER. Without Mr. DURBIN. If there is no further duced the most prolific and innovative objection, it is so ordered. business to come before the Senate, I broadcasting, music, and sound recording in- COMMITTEE ON VETERANS AFFAIRS ask unanimous consent it adjourn dustries in the world: Now, therefore, be it Resolved by the Senate (the House of Rep- Mr. LEAHY. Mr. President, I ask under the previous order. resentatives concurring), That Congress should unanimous consent that the Com- There being no objection, the Senate, not impose any new performance fee, tax, mittee on Veterans’ Affairs be author- at 12:41 a.m., adjourned until Thursday, royalty, or other charge relating to the pub- ized to meet during the session of the March 7, 2013, at 10 a.m.

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