Prepared Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Judiciary Committee
Statement Opposing the Nomination of Peter Kadzik
to be Assistant Attorney General,
Department of Justice Legislative Affairs Office
Thursday, June 12, 2014
On Monday, I explained my opposition to the nomination of Peter Kadzik to be the Assistant Attorney General for Legislative Affairs at the Justice Department.
In my view, the nominee’s record demonstrates contempt for congressional oversight. He has made a habit of providing evasive, nonresponsive, and plainly insufficient answers to congressional inquiries over the years. That practice alone disqualifies him from heading up the Legislative Affairs Office.
That office has had a chronic problem with credibility in recent years.
Specifically, I’m referring to the false denials regarding Operation Fast and Furious that Mr. Kadzik’s predecessor made and eventually had to retract.
So it’s pretty evident to me that this administration is sending a message to us by nominating an individual with a track record as abysmal as Mr. Kadzik’s.
That message is this: Expect more of the same.
Quite a message from the self-professed most transparent administration in history.
But there’s a lot more at stake regarding Mr. Kadzik’s nomination than restoring credibility to the Legislative Affairs Office.
A lot more.
As we all know, at the beginning of this year the President boasted that he had “a pen and a phone” and that he intended to use them.
What he meant, of course, was that he intended to bypass the legislative process and proceed with aggressive and unilateral executive action.
Four months later, Mr. Kadzik replied to me in a one-page response. He said, in short, he wouldn’t disclose those legal opinions.
But, he said, if I had additional questions regarding the legality of the President’s actions, I should let him know.
That was May 20.
Well, 11 days later, on Saturday, May 31, we learned that the President had flouted the congressional notification provisions of the National Defense Authorization Act.
This latest example of the administration’s flagrant disregard for its legal obligations to submit to congressional oversight has dominated the headlines.
I’m referring of course to the administration’s failure to notify Congress of its plan to release the so-called Taliban Dream Team from Guantanamo last week.
As every Senator knows, the National Defense Authorization Act – a law this President signed – required the administration to notify key congressional committees at least 30 days before arranging the release of a prisoner from Guantanamo.
The law enumerates exactly what that notification needs to address.
Specifically, the administration was legally required to explain to Congress why the release is in the national security interests of the United States.
The administration was legally required to explain to Congress what actions it has undertaken to mitigate the risk of re-engagement by the released detainees.
The law requires these explanations and other disclosures because the members of this body have an independent responsibility to ensure the national security of the United States.
And we take that responsibility seriously.
Each one of us swore an oath to protect and defend the Constitution, just like the President did.
Unfortunately, this administration has locked us out of the process that the National Defense Authorization Act requires.
And let me be clear.
The history of Section 1035 and the negotiations surrounding it make it plain that Congress included those provisions because it wanted to avoid releases like this one.
So Congressional opposition shouldn’t exactly come as a surprise to the administration.
This administration broke not only the law but also a promise it made in 2013 when White House Press Secretary Jay Carney promised that the administration “would not make any decisions about transfer of any detainees without consulting with Congress and without doing so in accordance with U.S. law.”
The administration knows it broke the law.
Certain Senators on our Select Committee on Intelligence have even reportedly received apologies from administration officials.
I don’t think apologies are good enough.
And I don’t think this administration takes seriously its legal obligations to consult with us before acting.
Take the recent statement made by the Deputy White House Press Secretary on June 9.
He said that “this administration continues to be committed to coordinating with our partners in Congress.”
But the law doesn’t require mere “coordination.”
Coordination isn’t good enough.
The President is required by law to meet certain obligations.
He recklessly ignores those obligations.
The President is required by the Constitution – a document the President claims to know a lot about – to “take care that the laws be faithfully executed.”
Yet, we all know by now that this President picks and chooses which laws to enforce.
This is not how our constitutional system is designed.
The President is not empowered to ignore the law.
So, “coordination,” as I said, isn’t good enough.
We need compliance with the law.
This administration needs to commit, on the record, that going forward it intends to comply with the National Defense Authorization Act so that another one of these stealth detainee releases never happens again.
With the exception of the Majority Leader, this administration has kept every member of the Senate and the House in the dark about releasing five of the most dangerous terrorists we were holding at Guantanamo.
And even the Majority Leader wasn’t given the 30-day notice the law requires.
So, it’s clear that not a single Senator was notified in compliance with the law in advance of the release of the Taliban Five.
It’s likewise clear that not a single Senator received the explanations regarding national security and risk mitigation that the law required in advance of the releases.
But the failure to notify us in accordance with the law doesn’t relieve this administration of its responsibility to justify the releases.
There is a lot about this ordeal that is extremely concerning.
And part of what is so troublesome is that the administration can’t even seem to get its story straight regarding why it ignored the law.
The justifications that the administration has offered publicly thus far have shifted dramatically from one day to the next.
Let’s take a look at those justifications.
Shortly after the release of the Taliban Five, on June 1 the administration sent – of all people – National Security Advisor Susan Rice back to the Sunday talk shows to explain the administration’s rationale.
Advisor Rice told CNN that the “acute urgency” of an unspecified “health condition” that Sergeant Bergdahl was suffering from had forced the President to act without notifying Congress.
We haven’t heard much publicly about that acute medical emergency since then. In fact, a number of my colleagues have expressed skepticism at what little information the Pentagon has provided publicly regarding Sergeant Bergdahl’s physical condition.
But since the administration has said it was an emergency because the terrorists had threatened Bergdahl’s life, apparently that was the medical emergency.
But, now the story’s changed.
First, on Monday, following the releases, according to press reports, the White House called the Chair of the Senate Select Committee on Intelligence to apologize for its “oversight” in failing to consult with Congress.
So, they meant to inform Congress about the releases but didn’t because of an “oversight.”
Is that the story now?
No, it didn’t take long for that story to change.
The White House then offered a new explanation.
On Tuesday, the Deputy White House Press Secretary said that the release was “a secret military mission in which disclosure of the mission could put into jeopardy not just the life of Sergeant Bergdahl but also the lives of the American servicemen who were involved in the mission, so discretion on this matter was important.”
Let’s think about that new justification for a moment.
The White House is saying, essentially, that disclosure of the operational details concerning the physical transfer of Sergeant Bergdahl could have jeopardized the mission.
But the White House’s justification is totally beside the point.
To my knowledge, no Senator has claimed that the administration had a legal obligation under Section 1035 to disclose the specific operational details of the transfer to our relevant committees.
Section 1035 doesn’t require that either.
On the contrary, the law requires the administration to explain its rationale for a release in terms of national security and risk mitigation, not operational details.
So this particular justification was a colossal red herring.
And it wasn’t the last of the shifting justifications this administration has offered.
Next, the administration claimed that it simply ran out of time to notify us.
On Tuesday, the administration reportedly claimed that it knew only one day in advance that the transfer would take place and only an hour in advance about where it would happen.
And then, on Wednesday, Defense Secretary Hagel told the House Armed Services Committee that the administration had only 96 hours from the time the deal was made to the actual release of Sergeant Bergdahl.
Again, both of these justifications miss the point.
It’s clear that the negotiations preceding the deal were in motion for months.
According to the Chairman of the House Armed Services Committee, the administration reported that it had been engaged in negotiations with the Taliban since January 2014.
So, the administration had weeks – if not months – to communicate to Congress that it was in active negotiations that might result in an exchange deal in the near future.
That, of course, never happened.
But even that wasn’t the last of the shifting justifications.
On Wednesday, Defense Secretary Hagel told the House committee that the administration couldn’t notify Congress because of the risk of a leak.
Secretary Hagel said that the Qatari government – which apparently was acting as the middle-man in these negotiations with the Taliban – threatened to end all negotiations if details of the deal leaked.
Mr. President, it’s pretty obvious that this justification just doesn’t wash either.
Press reports indicate that the administration told Congress that anywhere from 80 to 90 members of the executive branch knew about the release of the Taliban Five before it happened.
That number included officials in the State Department, the Department of Homeland Security, the White House, and the Department of Defense.
If that many individuals are in the loop, the administration’s stated concern about a leak just doesn’t make any sense.
The White House could keep all of those officials in the loop, but it couldn’t pick up the phone and call the Chair and Vice Chair of the Senate Select Committee on Intelligence?
And, frankly, as we’ve seen over the last few years, when information is leaked to the press, the leak usually originates in the executive branch, and more often than not in the White House itself.
So, it seems pretty clear that the administration is not being candid with us or with the American people about why it broke the law and locked us out of this process.
Mr. President, the bottom line is this.
The White House ignored a federal law that the President signed, and that the White House Press Secretary promised it would follow.
Yet, the White House can’t even get its story straight regarding why it ignored the law.
It’s for these reasons that I wrote the Attorney General last week and called on the Office of Legal Counsel to release any and all materials concerning the legal justification for the detainee release that the Department of Justice provided to the administration.
This becomes more important with each passing day, as the White House keeps offering new explanations for why it broke the law.
We know that the Justice Department provided legal advice on this question to the Defense Department because that is one of the very first things the administration said publicly about the deal.
On June 1, Susan Rice told CNN that the Defense Department consulted with the Justice Department before the decision to move forward was made.
We need to know about the nature of that consultation.
We need to know what legal justification the Department of Justice provided that would permit the administration to ignore its legal duties to notify Congress and inform us of the reasons for the release.
And, importantly, we need to know what specific facts the Justice Department based its legal analysis on.
In other words, with all of these shifting explanations we’ve been hearing about the factual basis for the decision, which one was provided to the Justice Department?
Did they tell the Justice Department “we don’t have time to tell Congress”?
And, if so, did they tell them these negotiations had been ongoing for months, as they appear to have been?
Or, did they tell the Justice Department that Sergeant Bergdahl was, as Susan Rice claimed, suffering from an acute condition that required the administration to take immediate action?
Or, did the Justice Department take the view that the administration did not have to comply with the law because of the President’s powers under Article II, notwithstanding the fact that the
White House had promised that it would comply?
Or, was none of this even considered? Was all of this just an “oversight,” as the White House apparently told the Chair of the Senate Select Committee on Intelligence?
Or, was it that they didn’t have to comply because they didn’t trust the members of the Select Committee to keep a secret?
Or, should we expect that yet another justification will be forthcoming?
The bottom line is that Susan Rice went on CNN and said that the Justice Department was consulted.
But we don’t know whether there was a written opinion provided by the Office of Legal Counsel, and, if there was, what it concluded, and what facts that conclusion was based on.
The General Counsel of the Defense Department testified yesterday that the administration had received legal advice from OLC in the form of an email chain.
The administration needs to provide us with whatever written advice it received before it decided to contravene federal law.
Given their failure to respond to my previous requests, and considering Mr. Kadzic’s track record in this regard, I’m not optimistic.
As I’ve stated previously, Mr. Kadzik’s nomination embodies this administration’s philosophy of ignoring its obligations with respect to congressional oversight.
So, let me conclude by saying this.
This nominee’s record is emblematic of the administration’s sorry record in complying with congressional oversight.
And both have been abysmal.
If this administration is serious about honoring its legal obligations, the Attorney General will direct Mr. Kadzik to disclose the OLC’s legal reasoning for why the administration was entitled to ignore the law’s requirement to notify us.
No Senator should cast a vote on this nominee before Mr. Kadzik provides that legal reasoning to us.
If not now, when are all Senators, Republican and Democrat alike, going to take a stand against this President’s unilateral decisions to ignore Congress and his obligations under the law?
If not now, when will members of this body stand together in defense of our legislative prerogatives and assert our rights as part of a co-equal branch of government under the Constitution?
In this Senator’s view, a vote for this nominee is a vote endorsing this administration’s contempt for our oversight authority and will lend support to the deal that released the Taliban Five without adhering to the law.
As my colleagues know, I will vote against this nominee.
I encourage my colleagues to vote against him as well.
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