[Congressional Record Volume 159, Number 63 (Tuesday, May 7, 2013)]
[Senate]
[Pages S3104-S3108]



                           EXECUTIVE SESSION

                                 ______
                                 

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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