[Congressional Record Volume 159, Number 63 (Tuesday, May 7, 2013)]
[Senate]
[Pages S3104-S3108]
EXECUTIVE SESSION
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NOMINATION OF DAVID MEDINE TO BE CHAIRMAN AND MEMBER OF THE PRIVACY AND
CIVIL LIBERTIES OVERSIGHT BOARD
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will proceed to executive session to consider the following
nomination, which the clerk will report.
The bill clerk read the nomination of David Medine, of Maryland, to
be Chairman and Member of the Privacy and Civil Liberties Oversight
Board.
The ACTING PRESIDENT pro tempore. Under the previous order, there
will be 1 hour for debate equally divided in the usual form.
The Senator from Iowa.
Mr. GRASSLEY. Mr. President, I oppose the nomination of David Medine
to be the Chairman of the Privacy and Civil Liberties Oversight Board,
which is commonly referred to as the PCLOB.
Mr. Medine was nominated for this position during last Congress and
the Judiciary Committee, where I serve as the ranking member, held a
hearing on his nomination in April 2012.
At the hearing, I asked a number of questions about the various
national security statutes that the Board is tasked with overseeing.
This included questions about the Foreign Intelligence Surveillance Act
and the PATRIOT Act.
Specifically, I asked for his views on these laws. Unfortunately, the
responses I received failed to provide his views. He simply stated that
he would balance the views of the government against the Board's
mandate to review privacy.
I also asked Mr. Medine about his views on the use of law enforcement
versus military authorities for combatting terrorism.
I was disappointed that he failed to answer a basic yes-or-no
question about national security law: ``Do you believe that we are
engaged in a war on terrorism?''
Instead, of a simple yes or no, he opted for a more limited answer
that military power is permissible in appropriate cases.
This technical answer gives me pause especially in light of the
continued threat we face from international terrorist organizations.
Perhaps the most concerning response he provided was to another
simple constitutional law question. I asked all the Board nominees an
important question about the use of profiling based upon country of
origin for immigration purposes.
The Constitution provides broad discretion to the government for
purposes of immigration. Each year the government places quotas or caps
on how many and what types of visas are allowed for each particular
country.
For example, if we face a threat from an unfriendly nation, it is
important that we have the ability to limit immigration from that
country. At the least, immigration and customs agents and consular
officers should be able to make decisions of admissibility solely on
country of origin.
I asked this same question to the other four current members of the
Board--two Democrats and two Republicans. They all answered the same
way, that foreign nationals do not have the same constitutional or
statutory rights as citizens and therefore U.S. officials should be
able to use this as a factor in admissibility determinations.
In contrast to the other four nominees, Mr. Medine argued that use of
country of origin as the sole purpose was ``inappropriate.''
Specifically, Mr. Medine noted that it would be ``inappropriate'' for
the Federal Government to profile foreign nationals from high-risk
countries based solely upon the country of origin. This is troubling.
As the other four nominees noted, foreign nationals do not have the
same constitutional or statutory rights as U.S. persons and the
government may, lawfully and appropriately, use country of origin as a
limiting factor for purposes of admission to the United States.
I think this is especially concerning given the recent attacks in
Boston and the concerns surrounding potential holes in our immigration
system related to student visa overstays.
[[Page S3105]]
What if our government learns of a terrorist plot undertaken by
individuals from a specific country. Under the view advocated by Mr.
Medine, excluding all individuals from that nation, even for a defined
period of time, would be ``inappropriate.''
Instead, under his view, even faced with this threat, it would only
justify ``heightened scrutiny of visitors from that country'' when the
individual was ``linked to other information about the plot.'' This is
a dangerous view of our government's authority to control admission
into the country.
Terrorism is fresh on everyone's mind following the recent attacks in
Boston, but the need to remain vigilant against a terrorist threat
should not rise and fall based upon our proximity to an attack.
The terrorist attacks on 9/11 changed the way the government viewed
terrorism and those who want to kill Americans.
We are now nearly 12 years released from 9/11. Some may believe that
we now have the means in place for restricting admission based only
upon specific intelligence of a plot. But that view is the type of
thinking that allows us to let down our guard.
Those who seek to kill Americans are not letting down their guard and
are always looking for ways to attack Americans and our way of life.
We can see this with the new tactics that they use, such as the
failed underwear bombing, the attempted Times Square bombing, and the
recent attacks in Boston.
It is through this lens that I view Mr. Medine's answer and why I
oppose his nomination to a board overseeing critical national security
laws.
While I agree we should always work to ensure that intelligence
information is utilized in a manner most likely to achieve the desired
result, there are scenarios where we may need to block entry to all
members of a certain country.
For example, would Mr. Medine's view apply to wartime situations?
Would we have to admit those whose country was at war with the U.S.?
I think his answers point to a dangerous worldview that is out of
touch with the threat we face from global terrorist organizations that
seek to kill Americans.
It is thinking that deviates from basic constitutional principles our
government was founded on; namely, the ability to protect our citizens
by limiting entry into the country.
This is a very serious matter given the Board's oversight of national
security law.
Given these concerns, I joined my colleagues in opposing Mr. Medine's
nomination when the Judiciary Committee voted on him in February. That
party-line vote mirrored the same party-line vote from the previous
Congress--even though the committee now has different members.
Above all, I fear that a nomination that is as polarizing as this
could cloud the legitimate work of the Board.
This Board is tasked with reviewing some of the most sensitive
national security matters we face.
If the Board issues a partisan decision, led by Mr. Medine, it will
be discredited because of these controversial fundamental beliefs Mr.
Medine holds.
These national security issues are already polarizing--just look to
any debate in Congress on FISA or the PATRIOT Act. Adding partisan
fueled reports to the fire would only exacerbate these difficult
matters.
Given these concerns, I oppose Mr. Medine's nomination and urge my
colleagues to do the same. A vote against this nominee is a vote to
preserve the legitimate tools to help keep America safe.
I yield the floor and suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. HARKIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
[...]
Mr. LEAHY. Mr. President, I am glad the Senate is finally confirming
David Medine as Chairman of the bipartisan Privacy and Civil Liberties
Oversight Board, PCLOB. The confirmation of this nominee is a
significant victory for all Americans who care about safeguarding our
privacy rights and civil liberties. The American people now have a
Privacy and Civil Liberties Oversight Board that is at full strength.
This Board should help ensure that we honor our fundamental values as
we implement a strategy to keep our Nation safe. Today's victory is
also a reminder of the challenges we face, and the commitment we must
keep, to protect personal privacy as new technologies emerge. Last
month, the Judiciary Committee unanimously reported bipartisan
legislation that Senator Lee and I authored to update the Electronic
Communications Privacy Act. I hope that the Senate will promptly
consider and pass this good privacy bill, as well.
The Judiciary Committee favorably reported this nomination last May
along with a bipartisan group of nominees to serve as members of the
Board. This nomination should not have taken a year to be considered
and confirmed by the Senate. The Senate finally confirmed all of the
other individuals, those nominated to serve as members of the Board,
last August. Republican Senators refused to vote on the chairman's
nomination. This was a needless delay and prevented the Board from
functioning at full strength. This is reminiscent of how they have
obstructed this President's nominees to the National Labor Relations
Board and the Consumer Financial Protection Bureau, as well as so many
of his judicial nominees. Now, after a year of obstruction, the Senate
will finally vote on the nomination, and the Privacy and Civil
Liberties Oversight Board we in Congress worked so hard to establish
will finally be able to begin to carry out its important work on behalf
of the American people.
The Privacy and Civil Liberties Oversight Board is a guardian of
Americans'
[[Page S3108]]
privacy rights and civil liberties as well as an essential part of our
national security strategy. When we worked to create this Board in the
wake of the Nation's response to the terrorist attacks on September 11,
2001, we did so to ensure that our fundamental rights and liberties
would be preserved as government takes steps to better secure our
Nation. In the digital age, we must do more to protect our Nation from
cyber attacks. But we must do so in a way that protects privacy and
respects our fundamental freedoms.
Protecting national security and protecting Americans' fundamental
rights are not in conflict. We can--and must--do both. The Privacy and
Civil Liberties Oversight Board should help ensure that we do now that
the Senate has finally been allowed to act on the nomination of
Chairman Medine.
With that, I yield the floor and suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. UDALL of New Mexico. Madam President, I ask unanimous consent the
order for the quorum call be rescinded.
The PRESIDING OFFICER (Ms. Heitkamp). Without objection, it is so
ordered.
The question is, Will the Senate advise and consent to the nomination
of David Medine, of Maryland, to be Chairman and Member of the Privacy
and Civil Liberties Oversight Board?
Mr. GRASSLEY. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from New Jersey (Mr.
Lautenberg) and the Senator from West Virginia (Mr. Manchin ) are
necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 53, nays 45, as follows:
[Rollcall Vote No. 114 Ex.]
YEAS--53
Baldwin
Baucus
Begich
Bennet
Blumenthal
Boxer
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cowan
Donnelly
Durbin
Feinstein
Franken
Gillibrand
Hagan
Harkin
Heinrich
Heitkamp
Hirono
Johnson (SD)
Kaine
King
Klobuchar
Landrieu
Leahy
Levin
McCaskill
Menendez
Merkley
Mikulski
Murphy
Murray
Nelson
Pryor
Reed
Reid
Rockefeller
Sanders
Schatz
Schumer
Shaheen
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Warren
Whitehouse
Wyden
NAYS--45
Alexander
Ayotte
Barrasso
Blunt
Boozman
Burr
Chambliss
Coats
Coburn
Cochran
Collins
Corker
Cornyn
Crapo
Cruz
Enzi
Fischer
Flake
Graham
Grassley
Hatch
Heller
Hoeven
Inhofe
Isakson
Johanns
Johnson (WI)
Kirk
Lee
McCain
McConnell
Moran
Murkowski
Paul
Portman
Risch
Roberts
Rubio
Scott
Sessions
Shelby
Thune
Toomey
Vitter
Wicker
NOT VOTING--2
Lautenberg
Manchin
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.
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