Prepared Floor Statement of Ranking Member Chuck Grassley
The Nomination of James Cole to be Deputy Attorney General
Monday, May 9, 2011
Mr. President,
I rise in opposition to the motion to invoke cloture on the nomination of James Cole to be the Deputy Attorney General at the Department of Justice. I have serious concerns with proceeding to a vote on the nominee for a number of reasons.
In addition to my concerns regarding Mr. Cole’s qualifications, I am troubled by President Obama’s recess appointment of Mr. Cole to this position. I have been consistent in my opposition to recess appointments over the years. Whenever the President bypasses the Senate by making recess appointments, such nominees will not receive my support. We have a process in place for nominations and if the President isn’t willing to work with Senators to clear nominations, the nominee shouldn’t get a second bite at the apple.
In addition to my general opposition to recess appointments, I have consistently warned this Administration that I would not cooperate in moving nominees for the Department of Justice, until they cooperated with my request for oversight materials. Last month I went to the floor to describe what I have learned in the course of my investigation into whistleblower allegations at the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). According to whistleblowers, guns found at the scene of the murder of Border Patrol Agent Brian Terry had been purchased illegally by a known straw buyer a year earlier, with the blessing of the ATF as part of an operation known as Fast and Furious.
I first asked about this issue on January 27. On February 16, I requested specific documents from the Justice Department. I reiterated that request on March 3. The Justice Department has repeatedly denied the whistleblower allegations, despite mounting evidence suggesting that they are true.
When the Justice Department failed to produce any responsive documents, I partnered with House Oversight and Government Reform Chairman Darrell Issa, who first requested documents and then issued a subpoena to the ATF after his voluntary request was ignored. On April 13 my staff learned that the Justice Department was making certain documents available for Chairman Issa’s staff to review at the department. Not only did the department fail to notify me of this document review, when I sent two of my staff members to participate this, they were turned away at the door of the Justice Department.
To this day, the Justice Department has still not produced a single page of documents in response to my inquiries and has provided only previously released public documents in response to Chairman Issa. I received a letter on May 2, 2011, declining to provide my staff with access to the documents on the grounds that “the Executive Branch … has taken the position that only a chairman can speak for a committee in conducting oversight work.” According to the D.C. Circuit Court of Appeals, however:
“It would be an inappropriate intrusion into the legislative sphere for the courts to decide without congressional direction that, for example, only the chairman of a committee shall be regarded as the official voice of the Congress for purposes of receiving such information, as distinguished from its ranking minority member, other committee members, or other members of the Congress. Each of them participates in the law-making process; each has a voice and a vote in that process; and each is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator.”
Murphy v. Dep’t
of the Army, 613 F.2d 1151, 1157 (D.C. Cir. 1979).
I said on the floor on April 14 that if the Justice Department did not cooperate and provide the information we need, I would consider exercising my right to object to unanimous consent requests on a nomination. Since that time, I have received nothing but stonewalling from the department. As the chief operating officer of the department, Mr. Cole is in a position to ensure the Justice Department meaningfully cooperates with my inquiries and complies with my document requests. He has failed to do so.
I also am concerned with the department’s continued resistance to oversight requests from Senator Chambliss, the Vice Chairman of the Select Committee on Intelligence. Senator Chambliss has requested that the Department of Justice share important documents with Congress regarding the Guantanamo Bay Detainee Review Task Force. This task force reviewed the case files of many detainees that were released or transferred from U.S. custody. Unfortunately, we now know that over 25 percent of those detainees later returned to fight against us or our allies.
These documents are part of a legitimate exercise of our constitutional duty to conduct oversight. The department’s repeated stonewalling of Senator Chambliss’s request should not be rewarded with a cloture vote on a controversial nominee.
The Deputy Attorney General is the second in command at the Justice Department and responsible for overseeing the day to day operations of the department. Managing this vast bureaucracy is a difficult task that requires a serious commitment to protecting our national security, enforcing our criminal laws, and safeguarding taxpayer dollars. We need a qualified individual to fill this slot, an individual who possesses the ability to not only provide leadership for the department, but also an individual who has the smarts, capability and willingness to manage department programs and root out inefficiencies and abuses in those programs. After reviewing all his responses and his hearing testimony, I concluded that I could not support Mr. Cole’s nomination to be the Deputy Attorney General.
In particular, I’m seriously concerned about Mr. Cole’s views on national security and terrorism. Back in 2002, Mr. Cole was the author of an opinion piece in the Legal Times. In that piece, he stated, “For all the rhetoric about war, the Sept. 11 attacks were criminal acts of terrorism against a civilian population, much like the terrorist acts of Timothy McVeigh in blowing up the federal building in Oklahoma City, or of Omar Abdel-Rahman in the first effort to blow up the World Trade Center. The criminals responsible for these horrible acts were successfully tried and convicted under our criminal justice system, without the need for special procedures that altered traditional due process rights.”
He added, “The acts of Sept. 11 were horrible, but so are…other things.” The other things he referred to were the drug trade, organized crime, rape, child abuse and murder. Mr. Cole’s opinion piece argued that notwithstanding the involvement of foreign organizations, such as al Qaeda, we have never treated criminal acts influenced by foreign nationals or governments as a basis for “ignoring the core constitutional protections ingrained in our criminal justice system.”
Mr. Cole concludes his opinion piece by arguing that in addition to stopping future terrorist attacks, the Attorney General is a criminal prosecutor and that he has a special duty to apply constitutional protections engrained in our criminal justice system to everyone, including terrorists captured on a foreign battlefield.
Mr. Cole wrote this opinion piece two days short of the first anniversary of the September 11 attacks. Given the close proximity in time to the September 11 attacks, we must understand this opinion piece to be Mr. Cole’s true beliefs about the application of the civilian criminal justice system to terrorism cases, including those who masterminded the 9/11 attacks.
From the opinion piece and his responses to our inquiries, it appears that if given a choice of prosecuting high ranking terrorists in civilian courts or military commissions, Mr. Cole would likely favor civilian courts based upon his longstanding belief in the role the Attorney General plays in protecting the principles of the criminal justice system. Absent a clear statement from Mr. Cole about what factors would warrant selecting a civilian or a military forum, it is hard to look at his entire record of past opinions, his testimony, and responses to our questions and reach a different conclusion.
Military tribunals have many advantages to civilian criminal courts and are better equipped to deal with dangerous terrorists and classified evidence while preserving due process. I’m troubled that Mr. Cole does not appear to share this belief. Based upon his responses and testimony, I have serious concerns about Mr. Cole’s support for civilian trials for terrorists captured on a foreign battlefield given that the Deputy Attorney General oversees the National Security Branch at the Justice Department.
Second, I have concerns about Mr. Cole’s abilities relative to oversight of government programs. First, in his responses about oversight of Department of Justice grant programs, Mr. Cole failed to commit to a top to bottom review of the programs. We’ve had enough examples of the tremendous inefficiencies, duplication and waste in these programs. I’m disappointed that Mr. Cole has failed to recognize that there is a need for a comprehensive review of the Department of Justice’s grant programs – not only for the sake of saving taxpayer dollars, but also to ensure that grant objectives are being met in the most efficient and effective manner possible.
Third, I have concerns about Mr. Cole’s abilities based on his performance as an independent consultant tasked with overseeing AIG. By way of background, the Justice Department provided copies of the reports Mr. Cole issued when he was overseeing AIG, but they were labeled “Committee Confidential.” Consequently, I cannot discuss with specificity the contents of those documents publicly.
Nevertheless, when taken into context with the public responses provided by Mr. Cole to my questions, a troubling picture develops about Mr. Cole’s performance in his independent consultant responsibilities. The responses and reports do not dispel the serious questions raised about Mr. Cole’s independence and completeness. Further, they reveal what appears to be a level of deference to AIG management one would not expect to see from someone tasked as an “independent” monitor.
In order to clarify a number of questions on this matter, Senator Coburn and I sent a follow-up letter seeking additional answers from Mr. Cole. Mr. Cole’s reply clarified that the Department of Justice, the Securities and Exchange Commission (SEC), and New York Attorney General’s Office were aware of his practice of seeking input from AIG and making modifications to the reports. He indicated that the changes AIG made were often factual changes such as AIG employee names, dates of materials, and events. He also indicated that some of the changes requested by AIG were included in a section of the reports entitled “AIG Response.” However, he added that “on a few occasions” AIG would “suggest a stylistic change of phrasing in the analytical section of the report.” He stated that while he included the edits made by AIG, he “did not believe that a detailed presentation of this factual review process was necessary to an understanding of each party’s position.”
As a result, the reports did not necessarily show which edits AIG made that were incorporated. Instead, he said that those changes were available in working papers that were “available to the SEC, the Department of Justice, the New York Attorney General’s Office.” Unfortunately, he added, “the agencies—which were aware of this practice—did not request such documents.”
While I appreciate Mr. Cole’s responses to these clarifying questions, they raise concerns about how independent his monitoring was, what changes were ultimately requested by AIG, what changes were included, and how much the SEC and the Justice Department really knew about edits AIG was making to the “independent” reports.
Finally, I have serious concerns about Mr. Cole’s decision to suspend the compliance review at AIG’s Financial Products division, following the government bailout. In his testimony, Mr. Cole acknowledged that following the government bailout of AIG, he scaled back his efforts until the future of AIG as a corporation was determined. After Mr. Cole suspended his monitoring, AIG restructured its compliance office and terminated a number of staff overseeing the company’s compliance with SEC regulations. Mr. Cole said that after it was determined that AIG’s Financial Products division would not be dissolved, the compliance and monitoring were “revived and are being reviewed and implemented where applicable.” Under Mr. Cole’s watch, AIG not only got $182 billion of taxpayer money, it was able to talk the independent consultant—Mr. Cole—out of monitoring what the company was doing.
Based upon these factors, I’m concerned about Mr. Cole’s ability to perform the duties required of the Deputy Attorney General. In the position, he would be in a position to potentially influence future compliance monitors appointed under settlements between the Justice Department, SEC, and other corporations that have violated the law. Independent monitors need to be truly independent and completely transparent. They are selected and appointed to ensure that the interests of the American people are protected.
I cannot support the nomination of Mr. Cole to be Deputy Attorney General and therefore will vote against cloture. I urge all my colleagues to join me in opposing this cloture vote to send a message to the Justice Department to stop the stonewalling of legitimate oversight inquiries from members of the United States Senate.