[Congressional Record Volume 159, Number 33 (Thursday, March 7, 2013)]
[Senate]
[Page S1240]
BRENNAN NOMINATION
Mr. McCONNELL. Mr. President, yesterday the junior the Senator from
Kentucky took to the Senate floor to exercise his rights as an
individual Senator in pursuit of an answer from the Attorney General
concerning the rights of U.S. citizens.
The filibuster was extended, heartfelt, and important, and I wish to
say a few words in reaction to that effort and, as well, on the
nomination of John Brennan to be Director of the Central Intelligence
Agency.
The question he raised was entirely appropriate and should have
already been answered by the Obama administration.
First, I wish to state for the Record and to correct any
misimpression that yesterday's long debate was a criticism of the
Senate's oversight of our Nation's intelligence activities. In fact,
the Senate Select Committee on Intelligence is responsible for
conducting vigorous oversight of our Nation's intelligence activities,
and I want to make clear that they were not the subject of last night's
debate. The members of that committee conduct that oversight in a
professional, responsible manner, and selflessly serve the rest of the
Senate in that capacity.
Let me assure the Senate, the activities of the intelligence
community are closely monitored and overseen by the Intelligence
Committee, to include all counterterrorism activities.
Most recently, the committee has conducted a serious and much-needed
inquiry into the terrorist attack on the temporary mission facility in
Benghazi, Libya, and has conducted a thorough review of John Brennan's
nomination to be Director of the Central Intelligence Agency. Thanks to
the leadership of Chairman Feinstein and Vice Chairman Chambliss, the
committee has made significant progress in reviewing Mr. Brennan's
record, the intelligence related to the terrorist threat in Libya, and
in reviewing the administration's legal opinions concerning some
overseas activities.
Second, in reviewing Mr. Brennan's nomination, Senator Paul has asked
a series of questions of the executive branch. Senator Paul has a right
to ask questions of the administration, and the administration has a
responsibility to answer in keeping with the rules established for
oversight of intelligence activities and for protecting sensitive
information.
The specific question, however, is not an intelligence-related
question but a straightforward legal question: Does the President have
the authority to order the use of lethal force against a U.S. citizen
who is not a combatant on U.S. soil without due process of law?
To his credit, John Brennan directly answered the question motivating
Senator Paul's filibuster: The Central Intelligence Agency does not
conduct lethal operations inside the United States, nor does it have
the authority to do so. What is befuddling is why the Attorney General
has not directly and clearly answered the question.
The U.S. military no more has the right to kill a U.S. citizen on
U.S. soil who is not a combatant with an armed unmanned aerial vehicle
than it does with an M-16. The technology is beside the point. It
simply doesn't have that right, and the administration should simply
answer the question. There is no reason we cannot get this question
answered today. And we should get the question answered today. Frankly,
it should have been answered a long time ago.
Last, during Senator Paul's filibuster, I noted that I cannot support
John Brennan's confirmation. During January of 2009, the President
issued a series of Executive orders which, in my judgment, weakened the
ability of our intelligence community to find, capture, detain, and
interrogate terrorists. As President Obama's senior adviser on
counterterrorism, Mr. Brennan has been a fierce defender of the
administration's approach to counterterrorism as articulated by the
Executive orders I just referred to. He has been a loyal, dogged
defender of the administration's policies, policies with which I
seriously disagree. My greatest concern is that the Director of Central
Intelligence must be entirely independent of partisan politics in
developing objective analysis and advice that he gives to the
President. After 4 years of working within the White House, confronting
difficult policy matters on a daily basis, and having attempted to
defend the administration's policies--sometimes publicly, sometimes to
the media, and occasionally to the Senate--I question whether Mr.
Brennan can detach himself from those experiences.
For that reason I will oppose his nomination.
I yield the floor.
____________________
[Congressional Record Volume 159, Number 33 (Thursday, March 7, 2013)]
[Senate]
[Pages S1241-S1249]
EXECUTIVE SESSION
______
NOMINATION OF JOHN OWEN BRENNAN TO BE DIRECTOR OF THE CENTRAL
INTELLIGENCE AGENCY
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will proceed to executive session and resume consideration of
the following nomination, which the clerk will report.
The bill clerk read the nomination of John Owen Brennan, of Virginia,
to be Director of the Central Intelligence Agency.
Mr. McCONNELL. Mr. President, I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. THUNE. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
[...]
Mr. McCAIN. Mr. President, I ask unanimous consent to address the
Senate as if in morning business and ask to be joined in colloquy with
the Senator from South Carolina, Senator Graham.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The Drone Program
Mr. McCAIN. Mr. President, I wish to quote from this morning's
editorial in the Wall Street Journal entitled ``Rand Paul's Drone
Rant.'' I wish to read for the edification of my colleagues the
editorial which was in the Wall Street Journal, a credible media
outlet, this morning.
The Wall Street Journal reads:
Give Rand Paul credit for theatrical timing. As the storm
descended on Washington, the Kentucky Republican's old-
fashioned filibuster Wednesday filled the attention void on
Twitter and cable TV. If only his reasoning matched the
showmanship.
Shortly before noon, Senator Paul began talking filibuster
against John Brennan's nomination to lead the CIA. The tactic
is rarely used in the Senate and was last seen in 2010. But
Senator Paul said an ``alarm'' had to be sounded about the
threat to Americans from their own government. He promised to
speak ``until the President says, no, he will not kill you at
a cafe.'' He meant by a military drone. He's apparently
serious, though his argument isn't.
Senator Paul had written the White House to inquire about
the possibility of a drone strike against a U.S. citizen on
American soil. Attorney General Eric Holder replied that the
U.S. hasn't and ``has no intention'' to bomb any specific
territory. Drones are limited to the remotest area of
conflict zones like Pakistan and Yemen. But as a hypothetical
constitutional matter, Mr. Holder acknowledged the President
can authorize the use of lethal military force within U.S.
territory.
This shocked Senator Paul, who invoked the Constitution and
Miranda rights. Under current U.S. policy, Mr. Paul mused on
the floor, Jane Fonda could have been legally killed by a
Hellfire missile during her tour of Communist Hanoi in 1972.
A group of noncombatants sitting in public view in Houston
may soon be pulverized, he declared.
Calm down, Senator. Mr. Holder is right, even if he doesn't
explain the law very well. The U.S. Government cannot
randomly target American citizens on U.S. soil or anywhere
else.
I repeat that: The U.S. Government cannot randomly target American
citizens on U.S. soil or anywhere else.
What it can do under the laws of war is target an ``enemy
combatant'' anywhere at any time, including on U.S. soil.
This includes a U.S. citizen who is also an enemy combatant.
The President can designate such a combatant if he belongs to
an entity--a government, say, or a terrorist network like al-
Qaida--that has taken up arms against the United States as
part of an internationally recognized armed conflict. That
does not include Hanoi Jane.
Such a conflict exists between the U.S. and al-Qaida, so
Mr. Holder is right that the U.S. could have targeted (say)
U.S. citizen Anwar al-Awlaki had he continued to live in
Virginia. The U.S. killed him in Yemen before he could kill
more Americans. But under the law al-Awlaki was no different
than the Nazis who came ashore on Long Island in World War
II, were captured and executed.
The country needs more Senators who care about liberty, but
if Mr. Paul wants to be taken seriously, he needs to do more
than pull political stunts that fire up impressionable
libertarian kids in their college dorms. He needs to know
what he's talking about.
I watched some of that ``debate'' yesterday. I saw colleagues of mine
who know better come to the floor and voice this same concern, which is
totally unfounded. I must say that the use of Jane Fonda's name does
evoke certain memories with me, and I must say she is not my favorite
American, but I also believe that as odious as it was, Ms. Fonda acted
within her constitutional rights. To somehow say that someone who
disagrees with American policy, and even may demonstrate against it, is
somehow a member of an organization which makes that individual an
enemy combatant is simply false. It is simply false.
I believe we need to visit this whole issue of the use of drones--who
uses them, whether the CIA should become their own Air Force, what the
oversight is. The legal and political foundation for this kind of
conflict needs to be reviewed.
Relating to this, let me quote from an article by Jack Goldsmith that
was in the Washington Post on February 5, 2013, entitled: ``U.S. needs
a rulebook for secret warfare.''
The legal foundation rests mostly on laws designed for
another task that government lawyers have interpreted,
without public scrutiny, to meet new challenges. Outside the
surveillance context, Congress as a body has not debated or
approved the means or ends of secret warfare. Because secret
surveillance and targeted strikes, rather than U.S. military
detention, are central to the new warfare, there are no
viable plaintiffs to test the government's authorities in
court. In short, executive-branch decisions since 2001 have
led the Nation to a new type of war against new enemies on a
new battlefield without enough focused national debate,
deliberate congressional approval or real judicial review.
What the government needs is a new framework statute--akin
to the National Security Act of 1947, or the series of
intelligence reforms made after Watergate, or even the 2001
authorization of force--to define the scope of the new war,
the authorities and limitations on presidential power, and
forms of review of the President's actions.
I don't think we should have any doubt there are people both within
the United States of America and outside it who are members of
terrorist organizations and who want to repeat 9/11. All of us thank
God there has not been a repeat of 9/11. Most of the experts I know
will say there has been a certain element of luck--a small element but
still an element of luck, such as the Underwear Bomber and others--that
has prevented a devastating attack on the United States. But to somehow
allege or infer the President of the United States is going to kill
somebody such as Jane Fonda or someone who disagrees with the
government's policies is a stretch of imagination which is, frankly,
ridiculous--ridiculous.
I don't disagree that we need more debate, more discussion, and,
frankly, probably more legislation to make sure America does protect
the rights of all our citizens and to make sure, at the same time, if
someone is an enemy combatant, that enemy combatant has nowhere to
hide--not in a cafe, not anywhere. But to say that somehow, even though
we try to take that person, that we would hit them in a cafe with a
Hellfire missile--well, first of all, there are no drones with Hellfire
missiles anywhere near. They are over in places such as Yemen and
Afghanistan and other places around the world.
We have done a disservice to a lot of Americans by making them
believe that somehow they are in danger from their government. They are
not. But we are in danger--we are in danger--from a dedicated,
longstanding, easily replaceable leadership enemy that is hellbent on
our destruction, and this leads us to having to do things perhaps we
haven't had to do in other more conventional wars.
I don't believe Anwar al-Awlaki should have been protected anywhere
in the world, but that doesn't mean they are going to take him out with
a Hellfire missile. It means we are going to use our best intelligence
to apprehend and debrief these people so we can gain the necessary
intelligence to bring them all to justice.
All I can say is, I don't think what happened yesterday is helpful
for the American people. We need a discussion, as I said, about exactly
how we are going to address this new form of almost interminable
warfare, which is very different from anything we have ever faced in
the past, but somehow to allege the United States of America, our
government, would drop a drone Hellfire missile on Jane Fonda, that
brings the conversation from a serious discussion about U.S. policy to
the realm of the ridiculous.
I would also like to add an additional note. About 42 percent, as I
am told, of the Members of this Senate are here for 6 years or less.
Every time a majority party is in power, they become frustrated with
the exercise of the minority and their rights in the Senate. Back some
years ago, when the Republicans--this side of aisle--were in the
majority, we were going to eliminate the ability to call for 60 votes
on the confirmation of judges. We were able to put that aside. There
was another effort at the beginning of this Senate to do away with 60
votes and go back down to 51, which, in my view, would have destroyed
the Senate.
A lot of us worked very hard--a group of us--for a long time to come
up with some compromises that would allow the Senate to move more
rapidly and efficiently but at the same time preserving the 60-vote
majority requirement on some pieces of legislation. What we saw
yesterday is going to give ammunition to those critics who say the
rules of the Senate are being abused. I hope my colleagues on this side
of the aisle will take that into consideration.
[[Page S1244]]
I note the presence of the Senator from South Carolina. The Senator
from South Carolina, as many of our colleagues know, is a lawyer. He
has been a military lawyer in the Air Force Reserve for over 20 years.
If there is anyone in the Senate who knows about this issue from a
legal and technical standpoint, it is my colleague from South Carolina.
I ask my colleague from South Carolina, is there any way the
President of the United States could just randomly attack someone, with
a drone or a Hellfire missile, without that person being designated an
enemy combatant?
And I don't think, as much as I hate to say it, that applies to Jane
Fonda.
Mr. GRAHAM. I thank my colleague. That is a very good question.
This has been a very lively debate. Senator Paul has a lot of
passion, and that is a great thing. This is an important issue. We
should be talking about it, and I welcome a reasoned discussion. But to
my Republican colleagues, I don't remember any of you coming down here
suggesting that President Bush was going to kill anybody with a drone--
I don't even remember the harshest critics of President Bush from the
Democratic side. They had a drone program back then, so what is it all
of a sudden about this drone program that has gotten every Republican
so spun up? What are we up to here?
I think President Obama has, in many ways, been a very failed
President. I think his executive orders overstep, I think he has
intruded into the congressional arena by Executive order, I think
ObamaCare is a nightmare, and there are 1,000 examples of a failed
Presidency, but there is also some agreement. People are astonished, I
say to the Senator, that President Obama is doing many of the things
President Bush did. I am not astonished. I congratulate him for having
the good judgment to understand we are at war.
To my party, I am a bit disappointed that you no longer apparently
think we are at war. Senator Paul, he is a man unto himself. He has a
view I don't think is a Republican view. I think it is a legitimately
held libertarian view.
Remember, Senator Paul was the one Senator who voted against a
resolution that said the policy of the United States will not be to
contain a nuclear-capable Iran. It was 90 to 1. To his credit, he felt
that would be provocative and it may lead to a military conflict. He
would rather have a nuclear-capable Iran than use military force, and
he said so--to his credit. Ninety of us thought, well, we would like
not to have a military conflict with Iran, but we are not going to
contain a nuclear-capable Iran because it is impossible.
What would happen is that if Iran got a nuclear weapon, the Sunni
Arab States would want a nuclear weapon, and most of us believe they
would share the technology with the terrorists, who would wind up
attacking Israel and the United States. It is not so much that I fear a
missile coming from Iran; I fear, if they got a nuclear weapon or
nuclear technology, they would give it to some terrorist organization--
like they gave IEDs to the Shia militia in Iraq to kill Americans--and
they would wreak havoc on the world.
So we don't believe in letting them have it and trying to contain
them because we believe their association with terrorism is too long
and too deep, that it is too dangerous for Israel and too dangerous for
us. But Senator Paul, to his credit, was OK with that; I just disagree
with him.
As to what he is saying about the drone program, he has come our way
some, and I appreciate that. Before, he had some doubt in his mind as
to whether we should have killed Anwar al-Awlaki in Yemen--an American
citizen who had collaborated with al-Qaida and was actually one of the
military leaders of al-Qaida in Yemen, who had radicalized Major Hasan,
and who had been involved in planning terrorist attacks against U.S.
forces throughout the region.
President Obama was informed through the military intelligence
community channels of Anwar al-Awlaki's existence, all the videos he
made supporting Jihad and killing Americans, and he, as Commander in
Chief, designated this person as an enemy combatant.
Mr. President, you did what you had the authority to do, and I
congratulate you in making that informed decision.
And the process to get on this target list is very rigorous--I think
sometimes almost too rigorous.
But now, apparently, Senator Paul says it is OK to kill him because
we have a photo of him with an RPG on his shoulder. He has moved the
ball. He is saying now that he wants this President to tell him he will
not use a drone to kill an American citizen sitting in a cafe having a
cup of coffee who is not a combatant. I find the question offensive.
As much as I disagree with President Obama, as much as I support past
Presidents, I do not believe that question deserves an answer because,
as Senator McCain said, this President is not going to use a drone
against a noncombatant sitting in a cafe anywhere in the United States,
nor will future Presidents because if they do, they will have committed
an act of murder. Noncombatants, under the law of war, are protected,
not subject to being killed randomly.
So to suggest that the President won't answer that question somehow
legitimizes that the drone program is going to result in being used
against anybody in this room having a cup of coffee cheapens the debate
and is something not worthy of the time it takes to answer.
Mr. McCAIN. May I ask my colleague a question especially on that
subject.
A lot of our friends--particularly Senator Paul and others--pride
themselves on their strict adherence to the Constitution and the
decisions of the U.S. Supreme Court.
Isn't it true that as a result of an attack on Long Island during
World War II, an American citizen--among others--was captured and hung
on American soil, and the U.S. Supreme Court upheld that execution
because that individual was an enemy combatant? Does that establish
without a doubt the fact that these are enemy combatants, and no matter
where they are, they are subject to the same form of justice as the
terrorists in World War II were?
Mr. GRAHAM. It has been a long-held concept in American jurisprudence
that when an American citizen sides with the enemies of our Nation,
they can be captured, held, and treated as an enemy combatant; they
have committed an act of war against our country, not a common crime.
In World War II, German saboteurs landed on Long Island. They had
been planning and training in Germany to blow up a lot of
infrastructure--and some of it was in Chicago. So they had this fairly
elaborate plan to attack us. They came out of a submarine. They landed
on Long Island. And the plan was to have American citizens sympathetic
to the Nazi cause--of German origin, most of them--meet them and
provide them shelter and comfort. Well, the FBI back then broke up that
plot, and they were arrested. The American citizens were tried by
military commission, they were found guilty, and a couple of them were
executed.
Now, there has been a case in the war on terror where an American
citizen was captured in Afghanistan. Our Supreme Court reaffirmed the
proposition that we can hold one of our own as an enemy combatant when
they align themselves with the forces against this country.
This Congress, right after the September 11 attacks, designated
authorization to use military force against al-Qaida and affiliated
groups. So the Congress has given every President since 9/11 the
authority to use military force against al-Qaida and affiliated groups.
And American citizens such as Anwar al-Awlaki and that guy Hamdi who
was captured in Afghanistan have been treated as enemy combatants, and
if President Obama does that, he is doing nothing new or novel.
What would be novel is for us to say that if a terrorist cell came to
the United States, if an al-Qaida cell was operating in the United
States, that is a common crime and the law of war doesn't apply. It
would be the most perverse situation in the world for the Congress to
say that the United States itself is a terrorist safe haven when it
comes to legal rights; that we can blow you up with a drone overseas,
we can capture you in Afghanistan and hold you under the law of war,
but if there is a terrorist cell operating in the
[[Page S1245]]
United States, somehow you are a common criminal and we will read you
your Miranda Rights.
I just have this one question to get Senator McCain's thoughts. I
hope we realize that, hypothetically, there are patriot missile
batteries all over Washington that could interdict an airplane coming
to attack this Capitol or the White House or other vital government
facilities.
I hope the Senator understands--Senator McCain is a fighter pilot--
that there are F-15s and F-16s on 3-minute to 5-minute alert all up and
down the east coast. If there is a vessel coming into the United States
or a plane has been hijacked or a ship has been hijacked that is loaded
with munitions or the threat is real and they have taken over a craft
and are about to attack us, I hope all of us would agree that using
military force in that situation is not only lawful under the
authorization to use military force, it is within the inherent
authority of the Commander in Chief to protect us all.
Mr. McCAIN. And should not be construed as an authority to kill
somebody in a cafe.
Mr. GRAHAM. It should be construed as a reasonable ability to defend
the homeland against a real threat. And the question is, Do you feel
threatened anymore? I do. I think al-Qaida is alive and well.
And to all those who have been fighting this war for a very long
time, multiple tours in Iraq and Afghanistan, who have tried to keep
the war over there so it doesn't come here, to the failed plots that
have been broken up by the CIA and the FBI, God bless you. We have to
be right every time; they only have to be right once.
If you think the homeland is not a desire of al-Qaida, it is
absolutely on the top of their list. They are recruiting American
citizens to their cause, and unfortunately a few will probably go over
to their side. Thank God it will be just a few.
But to take this debate into the absurd is what I object to. We can
have reasonable disagreements about, the regulatory nature of the drone
program should be under the Department of Defense and what kind of
oversight Congress should have. I think that is a really good
discussion, and I would like to work with Senator Durbin and others to
craft--the Detainee Treatment Act was where Congress got involved with
the executive branch to come up with a way to better handle the
detainee issue.
But the one thing I have been consistent about is I believe there is
1 Commander in Chief, not 535, and I believe this Commander in Chief
and all future Commanders in Chief are unique in our Constitution and
have an indispensable role to play when it comes to protecting the
homeland. If we have 535 commanders in chief, then we are going to be
less safe. And if you turn over military decisions to courts, then I
think you have done the ultimate harm to our Nation--you have
criminalized the war. And I don't think our judiciary wants that.
So as much as I disagree with President Obama, I think you have been
responsible in the use of the drone program overseas. I think you have
been thorough in your analysis. I would like to make it more
transparent. I would like to have more oversight.
As to the accusation being leveled against you that if you don't
somehow answer this question, we are to assume you are going to use a
drone--or the administration or future administrations would--to kill
somebody who is a noncombatant--no intelligence to suggest there are
enemy combatants sitting in a cafe hit by a Hellfire missile--I think
it is really off base.
I have this one final thought. If there is an al-Qaida operative U.S.
citizen who is helping the al-Qaida cause in a cafe in the United
States, we don't want to blow up the cafe. We want to go in there and
grab the person for intelligence purposes.
The reason we are using drones in Afghanistan and Pakistan is we
don't have any military presence along the tribal border. The reason we
are having to use drones is we can't capture people. The preference is
to capture them, not to kill them. But there are certain areas where
they operate that the only way we can get to them is through a drone
strike.
Mr. McCAIN. And may I say to my friend that there are scenarios where
there could be an extreme situation where there is a direct threat. We
could draw many scenarios--a bomb-laden, explosive-laden vehicle headed
for a nuclear powerplant--where the President of the United States may
have to use any asset the President has in order to prevent an
impending catastrophic attack on the United States of America. And that
is within the realm of possible scenarios.
So to somehow say that we would kill people in cafes and therefore
drone strikes should never be used under any circumstances I believe is
a distortion of the realities of the threats we face.
As we are speaking, there are people who are plotting to attack the
United States of America. We know that. At the same time, we are ready,
as the Senator said, to discuss, debate, and frame legislation that
brings us up to date with the new kind of war we are in. But to somehow
have a debate and a discussion that we would have killed Jane Fonda
does, in my view, a disservice to the debate and discussion that needs
to be conducted.
Mr. GRAHAM. That is a very good point.
I look forward to a discussion about how to deal with a drone
program. It is just a tactical weapon. It is an air platform without a
pilot.
Now, if there is a truck going toward a military base or nuclear
powerplant, we have a lot of assets to interdict that truck. Maybe you
don't need the F-16. But I guarantee you, if there was a hijacked
aircraft coming to the Capitol, the President of the United States
would be well within his rights to order the Patriot missile battery to
shoot that plane down or have an F-16 shoot it down. And we are ready
for that, by the way.
I would just suggest one thing. The number of Americans killed in the
United States by drones is zero. The number of Americans killed in the
United States by al-Qaida is 2,958. The reason it is not 2 million, 20
million, or 200 million is because they can't get the weapons to kill
that many of us. The only reason it is 2,958 is because their weapons
of choice couldn't kill more. Their next weapon of choice is not going
to be a hijacked airplane up there; it is going to be some nuclear
technology or a chemical weapon, a weapon of mass destruction. That is
why we have to be on our guard.
When you capture someone who is associated with al-Qaida, the best
thing is to hold them for interrogation purposes. We found bin Laden
not through torture, we found bin Laden through a decade of putting the
puzzle together.
Senator Durbin and Senator McCain, both are very effective advocates
that we have to live within our values and that when we capture
somebody, we are going to hold them under the law of war. We are going
to explore the intelligence, but we are going to do it within the laws
that we signed up to, such as the Geneva Conventions, the Convention
Against Torture.
Mr. DURBIN. Will the Senator yield for a question?
Mr. GRAHAM. Absolutely.
Mr. DURBIN. I very briefly thank my colleagues on the other side of
the aisle. It was 12 hours ago when I was standing right here, a lonely
voice among others who were discussing this issue, bringing up the
points the Senator raises. The first is the drone is a weapon. There
are many weapons that can deliver lethal force. We should view this as
an issue of lethal force, not an issue of drones per se--although it
may raise some particular questions in application. It is largely a
question of lethal force.
The second question has been raised by both Senators. What if the
fourth airplane had not been brought down by the passengers? What if
that plane were headed for this Capitol Building and all other planes
had been landed across America under orders of our government and we
knew this plane was the fourth plane in control of the terrorists, what
authority did President Bush have as Commander in Chief at that moment?
I don't think anyone would question he had the authority to use
lethal force to stop the terrorists from using that plane as a fourth
weapon against the United States.
There was no debate last night about that particular point. This
notion--and I am glad this point has been raised--that we are somehow
going to use drones to kill people sipping coffee in
[[Page S1246]]
cafes is ludicrous. It is absurd. It goes beyond the obvious. We need
those people. Bringing those people into our control gives us more
information.
Second, for goodness' sake, the collateral damage of something that
brutish would be awful. So I thank the Senator for putting it in
perspective.
I think Attorney General Holder could have been more artful in his
language yesterday, but at the end of the day, even Senator Cruz
acknowledged he said it would be unconstitutional to use this kind of
lethal force if there weren't an imminent threat pending against the
United States.
Mr. McCAIN. If I may say real quickly, an imminent threat.
MR. DURBIN. Yes.
Mr. McCAIN. We may have to do a little better job of defining that,
but to say imminent threat would then translate into killing somebody
in a cafe is not a mature debate or discussion.
Mr. GRAHAM. If I can add, let me tell the Senator about imminent
threat and military law. In Iraq we had disabled terrorist insurgents.
There was a big debate in the Marine Corps because under military law
when a lawful combatant, a person in uniform, has been disabled and it
does not present an imminent threat, we don't have the ability to shoot
them. OK.
The terrorists in Iraq put IEDs on wounded belligerents, unlawful
enemy combatants. So the Marine Corps wrestled very long and hard with
the rules of engagement. If you come upon somebody who is wounded,
apparently was disabled, under what circumstances could you use lethal
force because they may be booby-trapped.
To the Marine Corps' credit, they came up with a balance between who
we are--we just don't shoot even our enemies who are helpless and
wounded--and the ability for force protection.
Here is what I would say about the circumstance in question. The
process of determining who an enemy combatant is has always been a
military process. It is not a congressional debate. Our committees
don't get a list of names and we vote on whether we think they are
enemy combatants. Courts don't have trials over who is an enemy
combatant. If there is a question about enemy combatant status under
the Geneva Conventions, you are entitled to a single hearing officer
and that is all. In World War II, there were a lot of people captured
in German uniform who claimed they were made to wear the uniform by the
Germans. All of them had a hearing on the battlefield by a single
officer. It has been long held by military law it is a military
decision, not judicial decision or legislative decision, to determine
the enemy of the nation.
So President Obama has taken this far beyond what was envisioned.
This administration has a very elaborate process to determine who
should be determined to be an enemy combatant. I think it is thorough.
I think it has many checks and balances. As much as I disagree with
this President on many issues, I would never dream of taking that right
away from him because he is the same person, the Commander in Chief,
whoever he or she may be in the future, that we give the authority to
order American citizens in battle where they may die. He has the
authority to pick up a phone, Senator McCain, and say you will launch
today, and you may not come back.
I cannot imagine a Congress who is OK with the authority to order an
American citizen in battle--we don't want to take that away from him, I
hope--that is uncomfortable with the same American determining who the
enemy we face may be.
As to American citizens, here is the law. If you collaborate with al-
Qaida or their affiliates and you are engaged in helping the enemy, you
are subject to being captured or killed under the law of war. What is
an imminent threat? The day that you associate yourself with al-Qaida
and become part of their team, everywhere you go and everything you do
presents a threat to the country. So why do we shoot people walking
down the road in Pakistan? They don't have a weapon. There is no
military person in front of them who is threatened. The logic is that
once you join al-Qaida, you are a de facto imminent threat because the
organization you are supporting is a threat.
For someone to suggest we have to let them walk down the road, go
pick up a gun and head toward our soldiers before you can shoot them is
not very healthy for the soldier they are trying to kill and it would
be a total distortion of law as it exists. Back here at home, and I
will conclude----
Mr. DURBIN. If the Senator will allow just one last comment and I
thank him for the statement on the floor--from both my colleagues. The
Judiciary Committee's Subcommittee on the Constitution is going to have
a hearing, it is already scheduled, on this issue of drones. There are
legitimate questions to be raised and answered.
Mr. GRAHAM. There are.
MR. DURBIN. I might add that in my conversations with the President
he welcomes this. He has invited us to come up with a legal
architecture to make certain it is consistent with existing precedent
and military law and other court cases as well as our Constitution. I
think that is a healthy environment for us to have this hearing and
invite all points of view and try to come up with a reasonable
conclusion.
Mr. GRAHAM. I could not welcome that more. It worked with the
Detainee Treatment Act, it worked with the Military Commissions Act. I
think it is the right way to go.
Mr. McCAIN. Madam President, I think that concludes our discussion. I
would agree with the Senator from Illinois and my colleague from South
Carolina that we need hearings. We need to discuss how we conduct
this--the United States, in what appears to be, for all intents and
purposes, an interminable conflict that we are in and we have to adjust
to it. But that conversation should not be talking about drones killing
Jane Fonda and people in cafes. It should be all about what authority
and what checks and balances should exist in order to make it a most
effective ability to combat an enemy that we know will be with us for a
long time.
Mr. GRAHAM. If I could just have 2 minutes of wrapup, I will. To my
fellow citizens, the chance of you being killed by a drone--because you
go to a tea party rally or a moveon.org rally or any other political
rally or you are just chatting on the Internet quietly at home--by your
government through the use of a drone is zero, under this
administration and future administrations. If that day ever happened,
the President of the United States or whomever ordered such an attack
would have committed murder and would be tried. I don't worry about
that.
Here is what I worry about; that al-Qaida, who has killed 2,958 of
us, is going to add to the total if we let our guard down. I will do
everything in my power to protect this President, whom I disagree with
a lot, and future Presidents from having an ill-informed Congress take
over the legitimate authority under the Constitution and the laws of
this land to be the Commander in Chief on behalf of all of us.
As to any American citizen thinking about joining with al-Qaida at
home or abroad: You better think twice because here is what is going to
come your way. If we can capture you, we will. You will be
interrogated. You will go before a Federal judge and one day you will
go before a court and you will have a lot of legal rights, but if you
are found guilty, woe be unto you.
Here is another possibility. If you join with these thugs and these
nuts to attack your homeland and if we have no ability to capture you,
we will kill you and we will do it because you made us. The process of
determining whether you have joined al-Qaida is not going to be some
Federal court trial. It is not going to be a committee meeting in the
Congress. Because if we put those conditions on our ability to defend
ourselves, we cannot act in real time.
Bottom line: I think we are at war. I think we are at war with an
enemy who would kill us all if he could, and every war America has been
in we have recognized the difference between fighting crime and
fighting a war. If you believe, as I do, we are at war, those who aid
our enemies are not going to be treated as if they robbed a liquor
store. They are going to be treated as the military threat they are.
Mr. McCAIN. Madam President, I thank my colleague and also thank the
Senator from Illinois for his engagement. In closing, I would like to
congratulate my friend from South Carolina for his best behavior last
night at dinner. He was on his best manners and everyone was very
impressed.
[[Page S1247]]
I yield the floor.
The PRESIDING OFFICER (Ms. Baldwin). The Senator from Colorado.
Mr. UDALL of Colorado. Madam President, I rise in support of the
nomination of John Brennan to be the next director of the Central
Intelligence Agency. Mr. Brennan earned a bipartisan vote of 12-3 in
the Senate Intelligence Committee, on which I serve. He is clearly
qualified to lead the CIA and deserved that bipartisan vote in
committee. And he deserves confirmation by the full Senate today.
I say that in spite of the difficulties my colleagues and I
encountered in extracting information and commitments throughout the
confirmation process. Our concerns were less about John Brennan himself
and more about the role that the next CIA director needs to play. And
we believe that the information and commitments we finally secured from
him and from the White House are extraordinarily relevant to the role
of any CIA director.
Alongside several of my colleagues, I fought to enhance transparency
and preserve our system of checks and balances. The American people
have the expectation that their government is upholding the principles
of oversight and accountability.
Consistent with our national security, the presumption of
transparency should be the rule, not the exception. The government
should make as much information available to the American public as
possible, while protecting national security.
We have seen during previous administrations the problems that can
arise when even the intelligence committees are left out of the loop:
warrantless wiretapping, extraordinary detention and torture. Ben
Franklin put it well when he said: ``Those who would sacrifice liberty
for security deserve neither.''
Congressional oversight is critical to ensure that we sacrifice
neither, as we pursue a smart, but tough, national security strategy,
especially in this age of new forms of warfare.
This was true over the past several months, as I joined Senator Wyden
and others in pushing hard for access to the legal justification used
by the executive branch to lethally target Americans using drones. The
fact that we had to push so hard, I am sorry to say, no doubt erodes
the government's credibility with the American people. But it also
gives us an opportunity--and a good reason--to maintain and strengthen
our system of checks and balances.
I am glad the Administration met our requests and is giving members
of the Intelligence Committee access to legal opinions on targeting
American citizens. This is an important first step. But there is more
to be done for Congress to understand the limits on the drone program.
Madam President, our government has an obligation to the American
people to face its mistakes transparently, help the public understand
the nature of those mistakes, and then correct them. In this regard,
the next Director of the CIA has an important task.
The specific mistakes I am referring to are outlined in the
Intelligence Committee's 6,000-page report on the CIA's deeply flawed
detention and interrogation program. Acknowledging the flaws of this
program is essential for the CIA's long-term institutional integrity as
well as the legitimacy of ongoing sensitive programs.
I know the Presiding Officer will take a keen interest in this as she
is a strong supporter of civil liberties and protecting our freedoms.
That is why I will hold Mr. Brennan to the promise he made to me at his
confirmation hearing; that is, to correct inaccurate information in the
public record on the CIA's detention and interrogation program. That is
why I will continue to urge him to ensure that the Senate Intelligence
Committee's report on this flawed program is declassified and made
public.
In the committee's confirmation hearing, Mr. Brennan promised to be
an advocate of ensuring the committee has what it needs to do its
functions. I believe Mr. Brennan is that advocate.
I look forward to working with him and the administration with my
goal of protecting our national security while also safeguarding
America's constitutional freedoms and determining the limits of
executive branch powers in this new age of warfare.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maryland.
Mr. CARDIN. Madam President, I ask unanimous consent to speak as if
in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
[...]
____________________
[Congressional Record Volume 159, Number 33 (Thursday, March 7, 2013)]
[Senate]
[Pages S1249-S1256]
EXECUTIVE SESSION
______
NOMINATION OF JOHN OWEN BRENNAN TO BE DIRECTOR OF THE CENTRAL
INTELLIGENCE AGENCY--Continued
The PRESIDING OFFICER. The time until 3 p.m. is equally divided.
The Senator from California.
Mrs. FEINSTEIN. Madam President, it is my understanding that this is
an appropriate time for me, as chairman of the Intelligence Committee,
to speak on the nomination of John Brennan for Director of the CIA.
The PRESIDING OFFICER. The Senator is recognized.
Mrs. FEINSTEIN. Madam President, as a kind of predicate to this
nomination, we have heard a 13-hour filibuster from Senators who desire
an answer to the question that was proffered by Senator Paul. I have
that answer. It is dated March 7. It is a letter from the Attorney
General Eric Holder. It is to Senator Rand Paul. This is what it says:
It has come to my attention that you have asked an additional
question. ``Does the President have the authority to use a weaponized
drone to kill an American not engaged in combat on American soil?''
The answer to that question is no.
I ask unanimous consent that letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
The Attorney General,
Washington, DC, March 7, 2013.
Hon. Rand Paul,
U.S. Senate,
Washington, DC.
Dear Senator Paul: It has come to my attention that you
have now asked an additional question: ``Does the President
have the authority to use a weaponized drone to kill an
American not engaged in combat on American soil?'' The answer
to that question is no.
Sincerely,
Eric H. Holder, Jr.
Mrs. FEINSTEIN. So, hopefully, the need to continue any of this will
be vitiated, and we will be able to proceed with a vote. It is my
understanding that I have a half hour on behalf of the majority of the
Intelligence Committee to make a statement in support of Mr. Brennan.
Mr. Brennan's nomination was reported out of the Senate Intelligence
Committee on Tuesday by a strong bipartisan vote of 12 to 3. I look
forward to an equally strong vote by the Senate later today.
Let me begin with his qualifications, which are impressive and
unquestioned. John Brennan began his career as an intelligence officer
with the CIA in 1980. He worked as a CIA officer for 25 years in a
variety of capacities, including as an analyst in the Office of Near
Eastern and South Asian Analysis and as a top analyst in the CIA
Counterterrorism Center from 1990 to 1992, both areas that remain very
much a focus of the CIA today.
He was the daily intelligence briefer at the White House and served
as George Tenet's executive assistant. Despite his background as an
analyst, Mr. Brennan was selected to serve as Chief of Station, a post
generally filled by a CIA operations officer. He served in Saudi
Arabia, one of the most important and complex assignments, and then
returned to Washington as then-DCI Tenet's Chief of Staff and the
Deputy Executive Director of the CIA.
Mr. Brennan then served as the head of the Terrorist Threat
Interrogation Center, the predecessor organization to the National
Counterterrorism Center (NCTC), where he also served as the Interim
Director. After a short stint in the private sector, he returned to be
President Obama's top counterterrorism and homeland security adviser.
In that capacity, he has been involved in handling every major national
and homeland security issue we have faced since 2009.
He has been involved in counterterrorism successes, including this
administration's efforts to bring Osama bin Laden to justice and at
least 105 arrests of terrorist operatives and supporters in the United
States since 2009. He also helped implement the lessons learned from
Umar Farouq Abdul-
[[Page S1250]]
mutallab's attempted bombing of a jet over Detroit, the loss of CIA
personnel in Khowst, Afghanistan, and the terrorist attacks in
Benghazi, Libya. So he is qualified.
For the past 4 years, Mr. Brennan has been among the President's
closest advisers. As Director of the CIA, he would lead this Nation's
largest intelligence agency and will continue to provide information
and advice on intelligence matters to the President, his national
security team, and this Congress.
Throughout the past three decades, Mr. Brennan has observed every
aspect of intelligence from analysis to collection to covert action,
from inside government and the private sector, and from both the
intelligence and policy sides.
I actually do not believe there is anyone who is more qualified to
take over the CIA than John Brennan. So he cannot be denied this post,
in my view, on the basis of qualification. I think even those who
oppose his nomination recognize there is no question but that he is
well qualified. From the time he walks into the CIA, he will be ready
to go, up to speed on the numerous threats and challenges this country
faces all over the globe.
Let me speak for a moment why that is important and why it is so
important that we move to confirm John Brennan. As the Director of the
CIA, he leads the most diverse and clandestine intelligence agency, the
only agency to conduct covert actions, the largest all-source analytic
workforce. And he sits in the principal committee meetings where the
most sensitive national security decisions are made.
The past two CIA Directors, both Mr. Panetta and General Petraeus,
have played significant roles in keeping the Senate and House
Intelligence Committees informed of sensitive operations. They have
provided an independent assessment of hot spots and strategic threats
around the world. John Brennan will do the same.
By its nature, the CIA is among the parts of our government that
receive the least oversight. Its activities are largely shielded from
the view of the press, the public, the Government Accountability
Office, and, indeed, most Members of Congress. The Director of the CIA
must be both unimpeachable in his--or, hopefully, one day her--
integrity, while guiding a workforce of people who operate in the
shadows for the benefit of our Nation. This is important.
He must manage an independent and creative workforce, build and
nurture relationships with foreign spy chiefs, and lead teams of
scientists, technicians, lawyers, analysts, and operatives who are
involved in clandestine work. In short, the CIA is capable of the very
best of America, and, catastrophically at times, it is capable of great
mistakes.
It follows that the position of CIA Director requires an uncommon
nominee. That position should not remain vacant for long. For the past
5 months, the Deputy Director, Michael Morell, has served as the Acting
Director.
Mr. Morell, like John Brennan, is a career CIA officer and a very
gifted one. But as I discussed with him last Friday, he cannot single-
handedly attend the White House principals meeting, the deputies
meetings, direct the agency, meet with liaison partners, testify before
Congress, implement sequestration, and do everything else the Director
and Deputy Director must jointly do.
John Brennan and Michael Morell will be a great team in leading the
CIA. I believe they compensate for one another. Michael Morell has
these skills in analysis, and I think John Brennan has skills that make
him a very strong and, yes, even tough leader.
We face continuing attack from terrorists. There is no question about
that. I see the reports every day. Our posts overseas remain at risk,
and terrorists still seek to attack us at home. As a matter of fact,
there have been over 100 arrests in the last 4 years by the FBI in this
country.
There is a massive and still growing humanitarian disaster underway
in Syria with no end in sight and the prospect of an increasingly
desperate regime with nothing to lose. Instability is going to continue
to fester across North Africa, from Mali to Algeria, to Libya and
beyond, breeding and harboring a new generation of extremist.
The North Korean regime is threatening to disavow the 1953 cease-fire
with the South, and it has the nuclear and missile capability to cause
massive destruction and instability.
Iran's nuclear program continues to grow and its Revolutionary Guard
and Hezbollah proxy are growing bolder and more capable.
China's foreign policy and military might are increasing. According
to well-sourced recent unclassified reports, its cyber operations are
bleeding our private sector dry.
The CIA has a role to play in all of these areas, as well as
maintaining and expanding its global coverage. This is going to require
prioritizing resources and producing better results from a very skilled
CIA workforce. So the CIA Director position must be filled. Five months
is too long to leave it vacant. John Brennan, I believe, and 12 members
of our committee believe, is the right person to fill it.
On that question, whether we can depend on John Brennan to be
straight with the committee, I believe he will be and that he will be
someone with whom we can build a strong and trusting relationship.
Let me just say one thing that is important. It is very important
that the Intelligence Committees in both of these Houses have that
relationship with the Director of the CIA, so that with a bond of trust
there can be a sharing of information which enables our oversight to be
more complete. Without that, our oversight is not complete, and it
certainly is not as rigorous as what is required.
In nominating John Brennan, President Obama spoke of his ``commitment
to the values that define us as Americans.'' DNI Clapper, in a letter
of support to the committee, noted John's ``impeccable integrity'' and
that his ``dedication to country is second to none.'' He has been
called the administration's ``conscience,'' and I believe he will be a
straight shooter, which is extraordinarily important to me. I want the
truth whether it is good or bad. I want the truth. I believe every
member of my committee feels the same way.
Mr. Brennan has been straightforward with the committee throughout
the confirmation process. He has pledged to be open with us if
confirmed. We will take him up on that pledge. In his opening statement
at the committee's public confirmation hearing, Mr. Brennan said: If
confirmed, ``I would endeavor to keep this committee fully and
currently informed, not only because it is required by law, but because
you can neither perform your oversight function nor support the mission
of the CIA if you are kept in the dark.''
He acknowledged that the ``trust deficit has at times existed''
between the Intelligence Committee and the CIA, and he pledged to make
it his goal to strengthen the trust between our institutions. I look
forward to giving him that opportunity. To be sure, I will hold him to
these words.
I recognize that building a relationship and trust requires two
willing partners. We are willing. I believe he will be willing. We will
find out.
In fact, there is a broader issue on the interaction between the
executive branch and the Congress on intelligence matters. It goes well
beyond Mr. Brennan, and I wish to speak about it.
I have served on the Intelligence Committee for more than 12 years.
This is actually a lot more unusual than it sounds. From the
committee's establishment in 1976 to the end of 2004, there were term
limits on committee membership. Senators rotated off the committee just
when they had served for long enough to understand what the
intelligence community is doing and, most important, how it operates.
Senators Rockefeller, Wyden, Mikulski, and I have all served on the
committee for more than a decade, and Senators Chambliss and Burr are
near that total. Both served on the House committee before coming to
the Senate.
So now we have veterans on the committee who have watched and
listened. We spend a minimum of 2 hours in a committee meeting twice a
week and often longer. We cannot take home notes. Notes go in the safe
and we cannot take home classified information. It means a lot of
reading whenever we are able to find the time to go to a SCIF to read
the classified information
[[Page S1251]]
which daily is quite voluminous. We see everything except the
President's PDB; that is, the President's Daily Brief. All the other
information from all the other agencies stream through this committee.
It is vital we read it because this is where we find out where the
threats are.
We have been able to truly understand the relationship between the
Intelligence Committee, the intelligence community, and the importance
of having the committee kept fully and currently informed of
intelligence matters. That is not our wish. That is a requirement of
the National Security Act. We have seen what happens when this is not
the case, when the committee doesn't have access to full knowledge of
intelligence, as with the weapons of mass destruction weapons before
the war or with the CIA's detention and interdiction program through
the past administration.
By contrast, when we are briefed, we can provide input and advice. We
work to put an end to ill-advised plans, and we give the intelligence
community a measure of support and defend its actions.
There is a very strong feeling on both sides of the aisle that the
committee is not receiving the information it needs to conduct all
oversight matters in the manner in which we should. There is the matter
of Office of Legal Counsel opinions concerning the targeted killing of
Americans. The committee needs to understand the legal underpinning of
not only this program but of all clandestine programs, of all covert
actions, so we may ensure the actions of the intelligence community
operate according to law. Absent these opinions, we cannot conduct
oversight that is as robust as it needs to be.
During the confirmation process, we were able to reach an agreement
with the administration to receive these opinions, with staff access
and without restrictions on note taking.
I want to thank the administration. I think increasingly they
understand this problem of the need for us to access more information.
It is not a diminishing one, it is a growing one, and it is spreading
through this House--and I suspect the other House as well.
It needs to be this way. We need to know the legal basis for very
serious actions taken in a secretive way by the intelligence community.
Therefore, we can defend it. If we don't see it, we don't know.
I also wish to address the drone issue once more, mainly to discuss
the hypothetical examples offered yesterday by the Senator from
Kentucky. On Fox News this week, he mentioned--and I began with this
``what we are talking about is eating dinner in your house, you are
eating in a cafe or walking down the road, and a drone strike can
occur. It is not about people involved in combat, it is about people
who they think might be.''
A drone strike against someone eating in a cafe or walking down the
road will never happen in the United States of America. This is not
permitted in the United States of America. The Attorney General, in his
letter to Senator Paul, has said just that. It will not happen.
I hope this puts this issue to an end. It is one thing to target a
terrorist in an isolated country where there are isolated mountains and
valleys and where we cannot get to them to capture them, but we know
terrorists and terrorist leaders are plotting against the United
States.
The United States of America is a different place. There is access to
the court system, access to police, access to FBI, access to warrants,
access to arrests, access to be able to find and ferret out individual
terrorists. Drones will never be used in the United States of America
to kill innocent Americans, not if I have anything to do with it.
Yesterday, in the Judiciary Committee while I was present, Senator
Cruz followed up on Senator Paul's concerns, asking Attorney General
Holder if an American eating in a cafe--who doesn't pose an imminent
threat--could be killed by a drone. I don't believe the Attorney
General, at the time he heard the question or recognized the simplicity
of the facts presented by the hypothetical. When he did, he said no. My
view is the Attorney General's letter to Senator Paul is correct. The
only case in which the use of lethal force against Americans in the
United States could be contemplated or constitutional would be an
extraordinary circumstance such as the attack on Pearl Harbor or the
terrorist attacks on September 11, where four big commercial airliners
were hijacked and flown into three large buildings, with the fourth
crashing into a field in Pennsylvania.
Another issue, where the committee has sought documents, is related
to the Benghazi terrorist attack.
I notice that the vice chairman is on the floor. He and I have worked
to bring the additional documents his side wanted on the Benghazi
attacks. We have a commitment from the administration that all those
documents, if they haven't already been forthcoming--and it is my
understanding from the Senator most have been forthcoming--the
remaining ones will be forthcoming as well.
My view is the committee has received the information we need in
order to render a judgment about what happened in Benghazi before the
attacks of last September 11 and 12, during, after, and before. My
view, quite simply stated, is there was strategic warning about the
conditions in Eastern Libya. And based on the previous attacks in the
area, it was likely this mission not it was not a consulate--but this
mission could well be a site of attack. Members have asked legitimate
intelligence questions within our jurisdictional lane about Benghazi,
and they deserve answers to their questions.
Many Senators on both sides of the aisle in the committee see the
need for a better relationship and a better appreciation of what we
need in order to do our work. As I discussed previously, we are very
different from other congressional bodies which do oversight. Our
efforts aren't supplemented by the press, GAO or by nonprofit and
advocacy groups in the same way they are in the other committees of the
Congress. The Intelligence Committees in the House and the Senate need
to receive information from the executive branch in order to exercise
robust oversight.
I have spoken directly to the President, the President's Chief of
Staff, the National Security Adviser, and the Director of National
Intelligence about this. I believe they are truly beginning to
understand what is at stake. I am told they have an open view and are
discussing increased transparency with us at this time.
I strongly believe John Brennan will be part of the solution, and he
will be someone with whom we may work closely. He is well qualified.
His leadership and management are sorely needed, and he has strong
bipartisan support in the committee.
I urge a ``yes'' vote.
I yield the floor to the distinguished vice chairman from Georgia,
with whom it has been a great pleasure for me to work. We haven't
disagreed on a lot--we have disagreed on a few things--but I want the
Senator to know I wish to continue our relationship.
We need to put together another authorizing bill. I look forward to
working with you, Mr. Vice Chairman, in that regard, and I thank you.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. CHAMBLISS. Madam President, I rise to explain why I am opposing
the nomination of John Brennan to be the next director of the Central
Intelligence Agency.
First, I wish to say I thank the chairman for her kind comments. Let
me state, as they had reiterated, we had 2 great years where we
accomplished a great deal. She is one tough gentle lady, particularly
when it comes to the national security of the United States.
It has been a pleasure to work with her. It is rare we ever disagree,
because we both have the same end result in mind, which is to make sure
America and Americans are safe, secure, and the intelligence community
is doing its part to ensure that happens.
Her leadership has just been amazing. We have produced authorization
bills over each of the last 2 years--we have actually done four in 2
years, which indicates there was a backlog of those authorization
bills.
We have also reauthorized FISA and some other measures which equip
our intelligence community as well as our law enforcement community
with the tools they need to combat terrorism. It is because of her
leadership we have been able to do that.
[[Page S1252]]
When we do disagree, it is kind of an unusual situation. We may have
disagreements in a bipartisan way within our committee. This is good.
It is healthy.
Sometimes Democrats will side with me or Republicans will side with
the chairman on an issue. This shows us people are voting with their
hearts and what they think is in the best interests of America, not
from a partisan standpoint.
I attribute that to the leadership of Chairman Feinstein because of
her openness and for allowing bipartisan participation in a fine way.
I expect Mr. Brennan is going to be confirmed by the Senate. I would
have liked to have supported his nomination.
Unfortunately, I have significant concerns about several matters I
simply cannot put aside. If confirmed, Mr. Brennan will interact
extensively with the Senate Intelligence Committee and in particular
with Chairman Feinstein and with myself as the vice chairman. He will
have many opportunities over the next several years to alleviate my
concerns, and I hope he does so. At this time, I cannot support placing
him in a position so vital to our national security mission.
During the confirmation process, including during the open hearing,
I, along with other members, asked Mr. Brennan questions about the
leaks of classified information, issues involving congressional
oversight, interrogation, and detention matters. His responses to many
of these questions were very troubling and raised new concerns about
Mr. Brennan's judgment, his reluctance to commit to transparency with
Congress, and ultimately his candor. Let me describe these concerns
more fully.
First, I am deeply disturbed by Mr. Brennan's responses to the
committee regarding leaks of classified information, especially the
disclosure relating to the AQAP underwear bomb plot thwarted in May of
2012. Mr. Brennan acknowledged to the committee he had told four media
commentators we had ``inside control'' of this bomb plot but disputed
assertions that this disclosure resulted in the outing of a source. It
is undeniable that the day after his disclosure, there were dozens of
stories in the media stating the plot was foiled by a ``double agent''
or ``undercover agent'' who posed as a willing suicide bomber.
Mr. Brennan is poised to serve as the head of the Nation's leading
spy agency where he will be privy to some of the most sensitive, if not
all of the most sensitive, and highly classified operations being
conducted by the intelligence community. That he apparently thinks he
did nothing wrong in this disclosure is very troubling, to say the
least.
We all know there is a big problem with leaks of classified
information. We constantly deal with it in the committee and seek to
eliminate it. We cannot effectively hold accountable those responsible
for such leaks if a senior government official appears to shrug off his
own damaging disclosure. I hope Mr. Brennan will reconsider his
position on this case and convey to those he expects to lead, not just
in words but by his own example, the importance and necessity of
maintaining the secrecy he will be sworn to uphold.
Second, Mr. Brennan appears to be one of the architects of the
administration's current detention policy--or better stated, lack
thereof. Since the President signed the Executive orders in 2009
disbanding the CIA's detention and interrogation program and ordering
the closure of the Guantanamo Bay detention facility, many of us have
been asking the administration to tell us what their new detention
policy is. Unfortunately, in the years since, we have seen a most
unsatisfactory response play out in ways that I believe are detrimental
to our collection of timely intelligence and, ultimately, to our
national security.
We have seen a disturbing trend of returning to the pre-9/11 days
when bringing criminal charges against terrorists was a preferred
course rather than long-term detention, which allows for greater
intelligence collection. Because of this preference, the 2009 Christmas
Day bomber, Umar Farouk Abdulmutallab, was read his Miranda rights 50
short minutes after being pulled off the airplane that he had just
tried to bomb. It took 5 weeks before he would again cooperate and no
one knows what intelligence might have been lost during that delay.
Somali terror suspect Ahmed Abdulkadir Warsame was held on a naval
ship and interrogated for 60 days before being brought to a Federal
Court, all because the administration refused to send any more
detainees to Guantanamo Bay.
Even in the months before the Osama bin Laden raid, other than saying
Guantanamo Bay was off the table, administration officials could not
tell Congress where bin Laden would be held if he were captured.
Most recently, Ani al-Harzi, the only person held in connection with
the September 11, 2013, attacks in Benghazi that claimed the lives of
four Americans, was released by the Tunisians and is now roaming about
free because this administration would not take custody of him unless
criminal charges could be filed here in the United States.
Mr. Brennan is not merely a staunch and unapologetic advocate of this
misguided policy, he is the driving force behind it.
By criminalizing the war on terrorism, this administration has tied
the hands of our intelligence interrogators and appears to be avoiding
opportunities to capture terrorists in favor of just killing them or
relying on our foreign partners to do our intelligence collection for
us. Mr. Brennan disputes this assertion and testified that he was not
aware of any instance in which we had the opportunity to capture a
terrorist but took a lethal strike instead. But his testimony on this
point appears to be particularly incredible. While reasonable minds may
differ as to whether bin Laden should have been taken alive, to argue
that he could not have been taken alive and captured is not believable
when his wives and children were left behind during the raid. The truth
is the administration simply had no plan to capture him.
Now, while in this case of UBL, killing him probably was the best
option, I believe that all options have to be on the table and utilized
when appropriate; otherwise, we are potentially losing valuable
intelligence. Yet Mr. Brennan's testimony before the Intelligence
Committee made clear that he is fully satisfied with how detainees are
currently being handled and he is insistent the CIA remain out of the
detention business, even if it means we do not get direct or timely
access to detainees.
Thirdly, Mr. Brennan continues to insist that he conveyed to
colleagues at the CIA his personal objections to the CIA's
interrogation program. Yet not a single person has come forward to
validate that claim. And Mr. Brennan still refuses to identify those
colleagues, in spite of several direct requests by the Intelligence
Committee. During the time in question, Mr. Brennan served as the CIA's
Deputy Executive Director. We know he was privy to information about
the program, as we have seen numerous documents he received during and
after the interrogation of Abu Zubaydah.
It is not just reasonable, it is expected our intelligence
professionals, especially those in leadership positions, will speak up
when they see actions they believe are harmful to the agency or to
others. Yet by Mr. Brennan's own account, he stood by and let the CIA
proceed down a path that he says he believed to be morally wrong and
likely to harm the long-term reputation of the CIA. This is not the
moral courage we expect, especially from those who are in a position to
influence policy and operations. Unfortunately, Mr. Brennan continues
to insist that his official silence was entirely appropriate, and I
could not disagree more.
I am also troubled by Mr. Brennan's apparent willingness to scuttle
years of belief in the value of the information obtained from the CIA's
interrogation program simply because the recent interrogation study
conducted by the committee's majority staff found otherwise. In my
view, the study is significantly flawed, not the least of which being
that not a single intelligence community witness was interviewed. I am
worried about the impact Mr. Brennan's reversal will have on the morale
of those current CIA employees who were involved in the program and
whose own judgment and reputations are called into question by this
study.
[[Page S1253]]
I expect when the CIA returns its comments to the Intelligence
Committee about the accuracy of the report that Mr. Brennan will not
let his personal views of the program interfere with the professional
assessment and analysis of CIA employees.
Finally, underlying all of these issues are the principles of candor
and transparency with Congress. Our Nation was founded with three
coequal branches of government, each one providing checks and balances
over the other in a manner specified in the Constitution. Federal law
also imposes explicit obligations on the intelligence community, such
as keeping Congress fully and currently informed of significant
intelligence activities. Ordinarily, during confirmation hearings,
nominees unequivocally pledge their cooperation to Congress. Yet during
his confirmation process, Mr. Brennan refused to give affirmative
answers when asked to commit to such cooperation.
For example, he pledged to only give ``full consideration'' to any
request that the committee be provided with raw intelligence, even
though the committee has been given such intelligence in the past. When
asked about the inexcusable problems the committee has faced in trying
to obtain documents about the Benghazi attacks, Mr. Brennan promised
only to try to reach an accommodation with the committee if a similar
situation should ever arise again. This is hardly encouraging. Some may
say that Mr. Brennan was simply being honest and not overpromising. I
might agree but for the fact this pattern of obstruction and lack of
cooperation is becoming all too familiar to the committee, and Mr.
Brennan has been involved in many of the decisions to withhold
information from Congress.
For example, when the National Counterterrorism Center was created,
Congress gave it specific responsibility to serve as the primary
organization for strategic operational planning for counterterrorism.
For too long the committee has been refused full access to the
resulting counterterrorism strategies, a decision for which Mr. Brennan
is directly responsible. Rather than give us the strategies, the
administration has proposed an ``accommodation'' to simply brief the
committee, but as of today we still have not been briefed, even though
we are asked to fund the strategies as well as their implementation.
There are other examples, including the absurd restrictions that were
recently placed by the White House on the review of the OLC opinions
regarding lethal strikes on U.S. citizens. It is incomprehensible that
Congress is being denied unfettered insight into matters concerning the
intentional killing of U.S. citizens.
During the confirmation process, Mr. Brennan called on the
Intelligence Committee to be the protector and defender of the CIA.
That is not an accurate description of the committee's role. Given the
classified nature of intelligence activities, the committee serves as
the eyes and ears of the American people, and our responsibility lies
first and foremost to them. That is not to say we will not defend the
CIA or the rest of the intelligence community against unjust attacks.
We will. But the committee's primary role is to conduct oversight, and
we cannot do that effectively without full cooperation from the
intelligence community as well as the administration. I hope and expect
Mr. Brennan will now give us that cooperation rather than just what he
views as an accommodation.
The Director of the CIA has extensive and direct interactions with
Members of Congress, especially those of us on the Intelligence
Committee. During sensitive operations or times of crisis, the Director
is often one of the first to communicate with Members. There have been
too many instances in the past--under administrations of both parties--
in which facts were withheld from Members or information was painted in
a particular light to suit messaging needs, as we saw with the Benghazi
talking points. That is simply unacceptable.
If confirmed as the CIA Director, Mr. Brennan's credibility must be
unquestionable. We expect our spy agencies to be very good at hiding
the truth--but not with Congress. Here too Mr. Brennan will be an
example that all CIA employees look to, and his own standards of
honesty and credibility in dealing with Congress must be above and
beyond all reproach.
In conclusion, let me say that I have great confidence in the men and
women at the CIA. Each and every day they give this Nation their best,
and for that we are most grateful. They are the most professional, best
educated, and best operational intelligence agency in the world. They
are unbelievable men and women. My vote today is not a message to them
nor is it an indication of the faith I have in the CIA. My vote is not
personal toward Mr. Brennan; rather, it simply reflects my belief that
the unauthorized disclosure of classified information is wrong
regardless of whether you are on the front lines or you are an adviser
to the President.
My vote also reflects my belief, especially at this time in our
history, that the Director of the CIA should not support detention and
interrogation policies that are returning us to the pre-
9/11 days of elevating criminal charges over intelligence collection.
In my view, Mr. Brennan is on the wrong side of both of these issues.
I also believe Congress must be an equal branch of the government,
and this growing trend of refusing to cooperate with Congress must end.
The future and security of our country depends on all of us working
together. To do that well, there must be transparency and honesty. If
confirmed as the CIA Director, Mr. Brennan has a tough job ahead of
him. If he abides by these principles, he will find his job will be
much easier, as he will have earned the support and the trust of
Congress, and the country will be better off for it. Assuming
confirmation of Mr. Brennan, he will have my full cooperation and
support, I expect nothing less from him, and I hope that all of my
concerns will be put to rest.
With that, Madam President, I yield the floor.
Mr. UDALL. Madam President, I am voting today for the confirmation of
John Brennan to head the Central Intelligence Agency, CIA. He is a
qualified nominee, and this position is too important to our national
security to remain vacant. Mr. Brennan is a 25-year veteran of the
Central Intelligence Agency. He has been an able adviser to President
Obama and part of some of the most important national security
decisions made during the last 4 years, including the raid that killed
Osama bin Laden.
John Brennan should be confirmed as CIA Director. While I am
supporting his nomination, I want to make one thing clear: I am not
satisfied by the administration's limited disclosure of documents
outlining the legal justification for an extraordinary authority--to
target and kill American citizens in the course of counterterrorism
operations. I first called on the administration to provide Congress
with its legal justification in September 2011. This was after a
remotely piloted aircraft strike in Yemen killed Anwar al-Awlaki, an
American-born citizen. It was clear that al-Awlaki was a senior al-
Qaeda leader who posed a threat to American lives and deserved his
fate. Nevertheless, we are a nation of laws. Congress has a vital
oversight role and shared national security responsibility. We are
entitled access to full legal justifications for the President's
authority to target and kill an American citizen, and an explanation of
what limits there are to that authority. These legal precedents are
constitutional issues of the highest order.
Last month, eleven United States Senators from both parties--
including myself--sent a letter to the President requesting the release
of all legal opinions justifying his authority to authorize the killing
of American citizens as part of counterterrorism operations. There has
been some progress. The Justice Department recently provided many of
these documents to members of the Senate Select Committee on
Intelligence. However, I believe all of us in the Senate should be able
to review these documents and fulfill our constitutional duty to
conduct rigorous congressional oversight. While I will support John
Brennan's confirmation today, I will continue to seek access to these
legal opinions so that the Senate can fulfill its responsibility.
Since the attacks on September 11, 2001, both Presidents Bush and
Obama have claimed expansive wartime executive authorities that have
been supported in Justice Department legal
[[Page S1254]]
opinions. We saw this in the previous administration with the issues of
detainee interrogation methods and extraordinary renditions. While we
recognize the administration's authority to target and kill enemy
combatants, the targeting of American citizens in counterterrorism
operations raises important constitutional questions. Congress shares
constitutional authority for national security matters, and we must be
allowed to conduct oversight, which, in this case, includes reviewing
the legal justifications of the executive branch. When there is no
oversight, abuses can occur. And I believe that every administration
must be held accountable, regardless of which party controls the White
House.
Mr. LEVIN. Madam President, I continue to have some concerns about
John Brennan, the President's nominee to serve as the next Director of
Central Intelligence.
First, I am troubled by Mr. Brennan's unwillingness to state
unambiguously that waterboarding is torture. At his hearing before the
Intelligence Committee, I asked Mr. Brennan this question three times
without getting a direct answer:
SENATOR LEVIN: You've said publicly that you believe
waterboarding is inconsistent with American values. It's
something that should be prohibited, goes beyond the bounds
of what a civilized society should employ.
My question is this, in your opinion does waterboarding
constitute torture?
MR. BRENNAN: The attorney general has referred to
waterboarding as torture. Many people have referred to it as
torture. The attorney general, premiere law enforcement
officer and lawyer of this country.
And as you well know and as we've had the discussion,
Senator, the term ``torture'' has a lot of legal and
political implications.
It is something that should have been banned long ago. It
never should have taken place in my view. And, therefore, it
is--if I were to go to CIA, it would never, in fact, be
brought back.
SENATOR LEVIN: Do you have--do you have a personal opinion
as to whether waterboarding is torture?
MR. BRENNAN: I have a personal opinion that waterboarding
is reprehensible and it's something that should not be done.
And, again, I am not a lawyer, Senator, and I can't address
that question.
SENATOR LEVIN: Well, you've read opinions as to whether or
not waterboarding is torture. And I'm just--I mean, do you
accept those opinions of the attorney general? That's my
question.
MR. BRENNAN: Senator, you know, I've read a lot of legal
opinions. I've read an Office of Legal Counsel opinion in the
previous administration that said in fact waterboarding could
be used.
So from the standpoint of--of that, you know, I cannot
point to a single legal document on this issue.
But as far as I'm concerned, waterboarding is something
that never should have been employed and--and--and as far as
I'm concerned, never will be, if I have anything to do with
it.
SENATOR LEVIN: Is waterboarding banned by the Geneva
Conventions?
MR. BRENNAN: I believe the attorney general also has said
that it's contrary, in contravention of the Geneva
Convention.
Again, I am not a lawyer or a legal scholar to make a
determination about what is in violation of an international
convention.
After the hearing, I wrote to Mr. Brennan, pointing out that the
President and senior administration officials, including both lawyers
and non-lawyers, had concluded that waterboarding is torture. I asked
the question again, and again I got no direct answer. Mr. Brennan
replied:
You have asked for my position on whether waterboarding
constitutes `torture.' I understand and appreciate your
concern about the use of waterboarding by the prior
Administration. As I have made clear, I considered it
reprehensible then and now, and I have been an unwavering
supporter of the President's decision to ban its use. I have
also in the past stated that I believe waterboarding subjects
a person to severe pain and suffering, which is a common way
of defining `torture.' In addition, I have indicated in our
prior conversations and in my appearance before the Senate
Select Committee on Intelligence on February 7, the term
`torture' is a legal term, and I defer to the Attorney
General on matters of legal interpretation.
Mr. President, I ask unanimous consent that my letter to Mr. Brennan,
and Mr. Brennan's response, be printed in the Record immediately after
my statement.
Second, I am troubled that, during the time that Mr. Brennan served
on the staff of the National Security Council--NSC, senior
administration officials consistently declined to provide Congress with
access to key legal memoranda relative to the use of targeted strikes
against terrorist targets. Indeed, we were able to obtain access to
these memoranda only after it became clear that Mr. Brennan might have
trouble being confirmed if they were not made available.
Third, I am troubled that, during the time that Mr. Brennan served on
the NSC staff, senior officials in the intelligence community and the
NSC staff apparently did not protest when U.N. Ambassador Susan Rice
was rejected for the position of Secretary of State on the basis of her
public comments on the Benghazi attacks, even though those comments
were based on talking points produced by, reviewed by, and edited by
those same officials.
My concerns about Mr. Brennan's unresponsiveness in these three areas
are not sufficient to overcome the fact that he is qualified to be
Director of Central Intelligence. But it is my hope that he will learn
from this confirmation process and be more responsive to congressional
requests for information in the future.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Committee on Armed Services,
Washington, DC, February 20, 2013.
John O. Brennan,
Assistant to the President for Homeland Security and
Counterterrorism, The White House, Washington, DC.
Dear Mr. Brennan: I am troubled that, during your
confirmation hearing on February 7th, you chose not to
express your personal opinion as to whether waterboarding
constitutes torture. As the Senate Select Committee on
Intelligence continues to consider your nomination to be
Director of the Central Intelligence Agency (CIA), I would
appreciate your answers to the following questions for the
record.
In a November 2007 interview with CBS News, you stated, ``I
think it [waterboarding] is certainly subjecting an
individual to severe pain and suffering, which is the classic
definition of torture.''
Do you still hold that view today?
During his January 2009 confirmation hearing, Attorney
General Holder stated ``waterboarding is torture'' and
pointed out ``If you look at the history of the use of that
technique used by the Khmer Rouge, used in the inquisition,
used by the Japanese and prosecuted by us as war crimes. We
prosecuted our own soldiers for using it in Vietnam.''
During a press conference in April 2009, President Obama
said ``waterboarding violates our ideals and our values. I do
believe that it is torture. I don't think that's just my
opinion; that's the opinion of many who've examined the
topic.''
In another press conference in November 2011, President
Obama said ``Waterboarding is torture. It's contrary to
America's traditions. It's contrary to our ideals. That's not
who we are.'' He continued, ``If we want to lead around the
world, part of our leadership is setting a good example. And
anybody who has actually read about and understands the
practice of waterboarding would say that that is torture.''
Finally, during his February 2009 confirmation hearing to
be Director of the CIA, Leon Panetta said ``I believe that
waterboarding is torture and that it's wrong.''
Do you agree with President Obama, Attorney General Holder,
and Secretary Panetta that waterboarding constitutes torture?
I would appreciate your prompt response to these questions.
Sincerely,
Carl Levin,
Chairman.
____
The White House,
Washington, DC, February 25, 2013.
Hon. Carl Levin,
Chairman, Committee on Armed Services, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: Thank you Mr. Chairman, for your letter
of February 20, 2013.
You have asked for my position on whether waterboarding
constitutes ``torture.'' I understand and appreciate your
concern about the use of waterboarding by the prior
Administration. As I have made clear, I considered it
reprehensible then and now, and I have been an unwavering
supporter of the President's decision to ban its use. I have
also in the past stated that I believe waterboarding subjects
a person to severe pain and suffering, which is a common way
of defining ``torture.'' In addition, I have indicated in our
prior conversations and in my appearance before the Senate
Select Committee on Intelligence on February 7, the term
``torture'' is a legal term, and I defer to the Attorney
General on matters of legal interpretation.
In closing, let me assure you that I fully appreciate that
the humane treatment of detainees is both a national security
and a humanitarian imperative. If I am confirmed to serve as
Director of the Central Intelligence Agency, I will never
approve the deployment of waterboarding under any
circumstance, and will do everything in my power to prevent
its use.
Sincerely,
John O. Brennan,
Assistant to the President for Homeland
Security and Counterterrorism.
The PRESIDING OFFICER. The Senator from Wyoming.
[[Page S1255]]
Mr. ENZI. Madam President, I yield myself 10 minutes.
I would first associate myself with the remarks of the Senator from
Georgia, Mr. Chambliss, who is the ranking member on the Intelligence
Committee and has looked into this much deeper than I would ever be
able to. I appreciate the comments, the depth, and knowledge he has
imparted on that.
So I would be in opposition of the nomination of John Brennan for CIA
Director.
The administration hasn't been forthcoming in answering a vitally
important question of whether Americans could be killed by a drone on
American soil without first being charged----
Mr. REID. Madam President, would the Senator from Wyoming yield for a
unanimous request?
The PRESIDING OFFICER. Would the Senator yield?
Mr. ENZI. I yield to the Senator from Nevada.
Mr. REID. Madam President, I ask unanimous consent that the time on
the Republican side be limited to 15 minutes, with Senator Paul--and
how much time does my friend from Wyoming need?
Mr. ENZI. I asked for 10, but I could do it in 8.
Mr. REID. Eight minutes. Everybody else is gone.
I ask unanimous consent that the time on the Republican side be
limited to 15 minutes for Senator Paul and 8 minutes for Senator Enzi;
that following the use or yielding back of time on the nomination, the
mandatory quorum under rule XXII be waived; the Senate proceed to vote
on the cloture motion; that if cloture is invoked, the Senate proceed
to vote on confirmation of the nomination, without intervening action
or debate; further, that the motion to reconsider be considered made
and laid on the table, with no intervening action or debate; that no
further motions be made in order to the nomination; that President
Obama be immediately notified of the Senate's action and the Senate
then resume legislative session.
The PRESIDING OFFICER. Is there any objection?
Without objection, it is so ordered.
Mr. REID. Madam President, I extend my appreciation. There is no one
in the Senate who is more courteous and thoughtful than Senator Enzi,
and I appreciate his assistance.
Mr. ENZI. I thank the Senator very much.
As I was mentioning, this administration hasn't been forthcoming in
answering the vitally important question of whether Americans could be
killed by a drone on American soil without first being charged with a
crime or being found guilty in a court of law. This should have been a
very simple answer.
White House Press Secretary Jay Carney stated today that the
administration does not have the authority to kill Americans on
American soil. That is great news. However, it shouldn't have taken a
U.S. Senator 12 hours of nonstop talking for the administration to
acknowledge the simple fact that it can't kill Americans on American
soil without a trial.
I wish to applaud Senator Paul's courage and conviction last night as
he stood on the Senate floor for nearly 13 hours defending our rights
under the Constitution. Senator Paul deserves recognition for standing
up for the American people and bringing this issue to light. And it is
an issue that I and many of my constituents in the State of Wyoming
find very troubling.
In fact, as I traveled around Wyoming a couple weeks ago, it became
abundantly clear that people are very concerned over the
administration's disregard for constitutionally guaranteed individual
rights.
Drones--unmanned aerial vehicles--have been made famous by their use
in our war on terrorism. For a number of years these weapons have
served in operations in Iraq and Afghanistan with success. However, the
use of drones for both military and civilian purposes abroad and
domestically is increasing.
According to the Congressional Research Service, the Federal Aviation
Administration predicts 30,000 drones will fill the skies in less than
20 years. Although many of these uses will likely be for civilian
purposes--disaster relief, border control, crime fighting, and
agricultural crop monitoring--the use of drones raises new privacy and
civil liberty questions for U.S. citizens.
The first concern raised by the use of drones is how it may impact on
our fourth amendment rights: U.S. citizens have the right to be free
from unreasonable searches and seizures. Drones push the limits of what
could be considered reasonable. Courts generally recognize that U.S.
citizens have substantial protections against warrantless government
intrusions into the home, and that the fourth amendment offers less
robust restrictions on public places. However, drones begin raising the
question of what is reasonable when it comes to the expectation of
privacy in one's driveway or even backyard.
In a speech last night, Senator Paul reiterated additional
constitutional concerns that he has been seeking an answer on for a
number of weeks. The administration just now responded, but it raises
the concern about the willingness of the White House to act
transparently.
When it comes to important matters of national security and
constitutional liberties, we should all be asking ourselves why it took
a U.S. Senator 12 hours of nonstop talking for the Department of
Justice to acknowledge the simple fact that it cannot kill American
citizens on American soil without a trial. Senator Paul asked a
straightforward question and deserved a straightforward answer in a
timely manner. His question hit right at the heart of the fifth
amendment--rights as U.S. citizens, particularly ``no person shall . .
. be deprived of life, liberty or property without due process of
law.''
The first response Senator Paul got back was everything short of a
straightforward answer. This administration did not rule out the
possibility of using drones against Americans on U.S. soil. This is
particularly problematic, because our Constitution does not say the
fifth amendment applies when the President or Attorney General thinks
it applies. But it raises the concern about the willingness of
the White House to act transparently.
There is no reason why it should have taken so long for the
administration to acknowledge they don't have the authority to kill
Americans on U.S. soil without due process of law--specifically to deny
someone the right to a judge and jury and a trial. The fifth amendment
was written with this particular form of government abuse in mind and
it was more than appropriate for Congress to ask this question in its
oversight role.
We know, and our legal system recognizes, that you don't get due
process when you are actively attacking our soldiers or our government.
However, that wasn't the question Senator Paul posed. Congress needed
clarification from the administration on this nomination. In order to
build faith and confidence in our Nation's military and intelligence
community, we also need transparency and responsiveness in the
questions raised by Congress.
I will not be supporting John Brennan's nomination because of the
lack of transparency and timeliness on this important matter, and the
reasons given by the Senator from Georgia.
Madam President, I yield the floor and reserve the remainder of my
time.
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. PAUL. Madam President, yesterday I spent a considerable amount of
time on the floor talking about the idea of whether Americans are
protected by the fifth amendment always--whether you can be targeted
for drone strikes in America without your due process rights; whether
you get your day in court if you are accused of a crime in America. I
asked this question directly to the President, and I am pleased to say
that we did get a response this morning. The response from the Attorney
General reads:
It has come to my attention that you have a question. Does
the President have the authority to use a weaponized drone to
kill an American not engaged in combat on American soil? The
answer to that question is no.
So it has taken a while, but we got an explicit answer. I am pleased
we did. And, to me, I think the entire battle was worthwhile, one,
because we got to have a lot of discussion about when can drones be
used--particularly when can a drone strike be used against an American
on American soil?
The reason this is important is often drones are used overseas toward
people
[[Page S1256]]
who are not actively engaged in combat. I am not saying they are not
bad people or they might have previously been in combat. But the thing
is, we have to have a higher standard in our country. We can't have an
allegation from the country that says you are an enemy combatant or
that you are associated with terrorism. That is an allegation.
If you are e-mailing somebody who is a relative of yours in the
Middle East, and they may or may not be a bad person, it doesn't
automatically make you guilty; if we label you an enemy combatant and
say you are guilty, you don't get your day in court, and that is just
not American.
We have many soldiers from my State, from Fort Campbell and Fort
Knox, who fight overseas for us. They are fighting for the Bill of
Rights. They are fighting for the Constitution. So I consider it to be
our duty to stand and fight for something we all believe in, and that
is that the protections of the Bill of Rights are yours. When you are
accused of something, you get your day in court.
So I am very pleased to have gotten this response back from the
Attorney General of the United States. I think that Americans should
see this battle that we have had in the last 24 hours as something that
is good for the country, and something that should unite Republicans
and Democrats in favor of the Bill of Rights.
Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Ms. Warren). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mrs. FEINSTEIN. Madam President, I ask unanimous consent that the
order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. Madam President, I yield back all time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Cloture Motion
Under the previous order, pursuant to rule XXII, the Chair lays
before the Senate the pending cloture motion, which the clerk will
report.
The legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close debate on the nomination of
John Owen Brennan, of Virginia, to be Director of the Central
Intelligence Agency.
Harry Reid, Dianne Feinstein, John D. Rockefeller IV,
Debbie Stabenow, Sherrod Brown, Jack Reed, Benjamin L.
Cardin, Thomas R. Carper, Christopher A. Coons, Robert
P. Casey, Jr., Mark L. Pryor, Bill Nelson, Mark Begich,
Barbara A. Mikulski, Patty Murray, Carl Levin, Joe
Manchin III.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on the
nomination of John Owen Brennan, of Virginia, to be Director of the
Central Intelligence Agency shall be brought to a close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from California (Ms. Boxer)
and the Senator from New Jersey (Mr. Lautenberg) are necessarily
absent.
Mr. CORNYN. The following Senator is necessarily absent: the Senator
from Louisiana (Mr. Vitter).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The yeas and nays resulted--yeas 81, nays 16, as follows:
[Rollcall Vote No. 31 Ex.]
YEAS--81
Alexander
Ayotte
Baldwin
Baucus
Begich
Bennet
Blumenthal
Blunt
Brown
Burr
Cantwell
Cardin
Carper
Casey
Chambliss
Coats
Coburn
Collins
Coons
Corker
Cornyn
Cowan
Cruz
Donnelly
Durbin
Feinstein
Fischer
Flake
Franken
Gillibrand
Graham
Hagan
Harkin
Hatch
Heinrich
Heitkamp
Hirono
Hoeven
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kaine
King
Kirk
Klobuchar
Landrieu
Leahy
Levin
Manchin
McCain
McCaskill
Menendez
Merkley
Mikulski
Murkowski
Murphy
Murray
Nelson
Paul
Portman
Pryor
Reed
Reid
Rockefeller
Rubio
Sanders
Schatz
Schumer
Scott
Shaheen
Stabenow
Tester
Thune
Toomey
Udall (CO)
Udall (NM)
Warner
Warren
Whitehouse
Wyden
NAYS--16
Barrasso
Boozman
Cochran
Crapo
Enzi
Grassley
Heller
Inhofe
Lee
McConnell
Moran
Risch
Roberts
Sessions
Shelby
Wicker
NOT VOTING--3
Boxer
Lautenberg
Vitter
The PRESIDING OFFICER. On this vote the yeas are 81 and the nays are
16. Three-fifths of the Senators duly chosen and sworn having voted in
the affirmative, the motion is agreed to.
The PRESIDING OFFICER. Under the previous order, the question is on
confirmation of the Brennan nomination.
Mrs. FEINSTEIN. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
There is a sufficient second.
The question is, Will the Senate advise and consent to the nomination
of John Owen Brennan, of Virginia, to be Director of the Central
Intelligence Agency?
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer)
and the Senator from New Jersey (Mr. Lautenberg) are necessarily
absent.
Mr. CORNYN. The following Senator is necessarily absent: the Senator
from Louisiana (Mr. Vitter).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 63, nays 34, as follows:
[Rollcall Vote No. 32 Ex.]
YEAS--63
Alexander
Baldwin
Baucus
Begich
Bennet
Blumenthal
Brown
Burr
Cantwell
Cardin
Carper
Casey
Coats
Coburn
Collins
Coons
Corker
Cowan
Donnelly
Durbin
Feinstein
Flake
Franken
Gillibrand
Graham
Hagan
Harkin
Hatch
Heinrich
Heitkamp
Hirono
Johnson (SD)
Kaine
King
Kirk
Klobuchar
Landrieu
Levin
Manchin
McCain
McCaskill
Menendez
Mikulski
Murkowski
Murphy
Murray
Nelson
Pryor
Reed
Reid
Rockefeller
Rubio
Schatz
Schumer
Shaheen
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Warren
Whitehouse
Wyden
NAYS--34
Ayotte
Barrasso
Blunt
Boozman
Chambliss
Cochran
Cornyn
Crapo
Cruz
Enzi
Fischer
Grassley
Heller
Hoeven
Inhofe
Isakson
Johanns
Johnson (WI)
Leahy
Lee
McConnell
Merkley
Moran
Paul
Portman
Risch
Roberts
Sanders
Scott
Sessions
Shelby
Thune
Toomey
Wicker
NOT VOTING--3
Boxer
Lautenberg
Vitter
The nomination was confirmed.
The PRESIDING OFFICER. Under the previous order, the motion to
reconsider is considered made and laid upon the table. The President
will be immediately notified of the Senate's action.
Vote Explanations
Mrs. BOXER. Madam President, I was unavoidably absent from the
votes related to the nomination of John Brennan to be Director of the
Central Intelligence Agency. Had I been present, I would have voted yea
on the motion to invoke cloture and yea on the nomination.
Mr. VITTER. Madam President, I could not participate in the
nomination of John Brennan to be Director of the CIA because of a
family obligation in Louisiana.
I strongly support Senator Paul's filibuster, oppose the use of
drones in this country, and oppose both cloture and the confirmation of
John Brennan.
____________________
