[Congressional Record Volume 166, Number 85 (Wednesday, May 6, 2020)]
[Senate]
[Pages S2253-S2267]
EXECUTIVE SESSION
[...]
Nominations
Mr. McCONNELL. Mr. President, the core business of our Nation does
not stop while we fight the coronavirus. This week, Senate committees
are conducting oversight and holding hearings. Members are tracking the
implementation of the CARES Act. We are discussing how Congress could
do everything from further strengthening the health response to
ensuring that a second epidemic of frivolous lawsuits does not redirect
the national recovery into a trial lawyer bonanza.
Here on the floor, we are filling major vacancies in the Federal
Government. Today, we will confirm Bill Evanina to lead the National
Counterintelligence and Security Center. As our Nation grapples with
challenges at home, it is critically important that a full complement
of skilled professionals keep a close watch on our foes, adversaries,
and competitors.
[[Page S2254]]
Mr. Evanina's nomination will make him the first Senate-confirmed
Director of the NCSC. This role represents our government's senior-most
expert in counterintelligence. Fortunately, this nominee has served for
3 decades as special agent with the FBI, as chief of the CIA's
Counterespionage Group, and as one of the principal advisers to the
Director of National Intelligence.
Mr. Evanina's long professional experience has given him a well-
trained eye. He has made clear he is focused on the most serious
espionage threats facing our country today: China's insidious efforts
to steal our industrial, governmental, technological, and political
secrets and Russia's continuing efforts to meddle in our democracy. We
have a qualified professional who is tailor-made for an important job.
Our colleagues on the Intelligence Committee have reported him out on a
unanimous bipartisan basis twice. The vice chairman, Senator Warner,
said: ``Bill Evanina should be confirmed without further delay.''
But even still, our Democratic colleagues chose to obstruct his
nomination on the floor this week and require a full day of floor time
to confirm. Ironically, at the same time, we have also heard some of
our Democratic colleagues complain that we spend too much time voting
on nominations. It is bad enough to spend 3 years delaying nominations
to a historic degree and deliberately making the process painful, but
it reached a new level of irony for our Democratic friends to do all
that and then complain that their own strategy is inconveniencing their
schedules.
Essential matters of government do not cease because of the
coronavirus. They do not cease because of partisanship either. As long
as Senate Democrats continue to make incredibly qualified nominees
travel the hard way, including someone whom their own Democratic
ranking member openly praised, then, I will assure them they will need
to continue to show up and cast votes. The country's business will not
go undone.
[...]
Nomination of William R. Evanina
Mr. WYDEN. Mr. President, I rise to oppose the confirmation of
William Evanina, whom we will be voting on shortly. Because of his
failure to protect whistleblowers, leading whistleblower protection
organizations support the opposition to Mr. Evanina's confirmation.
I ask unanimous consent that the statements of two organizations,
true advocates of whistleblower rights at this crucial time, be printed
in the Record
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Government Accountability Project, May 6, 2020]
Senator Wyden Opposes Senior Intelligence Official's Nomination Over
Whistleblowers
Washington--Today, Senator Ron Wyden (D-OR) opposed William
Evanina's nomination to serve as the Senate-confirmed
Director of the National Counterintelligence and Security
Center (NCSC). Sen. Wyden's opposition comes days after
Senator Charles Grassley (R-IA) lifted his 2018 hold on Mr.
Evanina, placed in part because ``Mr. Evanina was responsible
for developing policies and procedures to address retaliatory
security clearance actions'' taken against whistleblowers.
Mr. Evanina has yet to produce those policies and procedures,
leaving government investigators with little guidance.
Government Accountability Project's National Security
Analyst Irvin McCullough said,
``Losing your security clearance means losing your
livelihood for many Intelligence Community employees. These
folks' whistleblowing protections were specifically designed
to give special care to whistleblowers whose security
clearances are revoked in retaliation for making protected
disclosures. However, the Director of National Intelligence
never implemented uniform policies and procedures for these
whistleblowers, meaning agencies can act as their own
fiefdoms when adjudicating these complaints. While a
whistleblower at the CIA has the same rights as a
whistleblower at the NSA, one may find it much harder to
enforce their rights simply because their agency is free to
apply harsher standards than the other. That is unacceptable.
Bill Evanina was directed to issue universal guidance for all
agencies to follow when investigating these types of
retaliation complaints, but he hasn't done it. While Mr.
Evanina is a dedicated public servant who has contributed
greatly to our country's national security, this is his job
and he needs to do it. We thank Senator Wyden for taking a
stand to protect whistleblowers and ensure accountability
inside the Intelligence Community.''
Contact: Andrew Harman, Communications Director.
____
Statement from Liz Hempowicz, Director of Public Policy, Project On
Government Oversight
``POGO commends Senator Wyden for standing up for
whistleblowers by refusing to confirm Mr. Evanina until this
critical issue is resolved. Any security clearance action
must be based on the national interests of our country, not
personal bias or retaliation. Retaliatory security clearance
actions undermine the security clearance process, this is why
Congress made it unlawful to retaliate against a
whistleblower by restricting their access to classified
information. ODNI charged Mr. Evanina's office with the
creation of uniform guidance for investigating retaliatory
actions, but he has failed to fulfil that mandate even after
several years. Thank you to Senator Wyden for standing up for
whistleblowers and their right to a fair and equal
investigation.''
Mr. WYDEN. Mr. President, it is currently open season on
whistleblowers under the Trump administration. Donald Trump and those
around him have made it clear that anyone who speaks up about waste,
fraud, abuse, or lawbreaking can be punished. If you are a
whistleblower under the Trump administration, Donald Trump himself and
his echo chamber will publicly call you a liar. They will threaten to
make your name public, even at the cost of your physical security. They
will prevent your complaints from getting to the Congress, and they
will fire the inspectors general who investigate your complaints.
Now, more than ever, courageous whistleblowers deserve leaders who
are going to protect them, defend them, and vigorously advocate and
work for them. They deserve leaders who are going to stand up to Donald
Trump and anybody else who tries to punish those who are going to speak
truth--truth, especially, to those in power.
I am rising today, taking this time of the Senate, to speak on behalf
of whistleblowers who feel under siege right now. I am on the floor to
oppose the confirmation of William Evanina's track record of inaction
and why he should not be the Director of the National
Counterintelligence and Security Center.
The fact is that Mr. Evanina has failed, repeatedly, the key test on
protecting whistleblower rights. Specifically, he failed to enact
whistleblower protections that the Congress required in 2014. Think
about that--all those years to get the job done and he didn't do it.
That is a 6-year track record of letting down whistleblowers and
failing to follow the law.
Today, Congress ought to stand up for whistleblowers, protect our
democracy, and the rule of law. And when Congress does act and pass
whistleblowers' protection legislation the way this body did in 2014,
the Congress must not reward those who ignore the whistleblower
protection laws. Here, you have a case of exactly that, refusal to
implement it for almost 6 years, and the person we are discussing with
that track record of not being there for whistleblowers at a crucial
time is being considered for a job promotion in the Senate.
I want to unpack, for a few minutes, what the world looks like now to
a potential whistleblower in today's intelligence community. One of the
biggest threats faced by whistleblowers who work with classified
information is that their bosses are going to retaliate against them by
revoking their security clearances. Without clearances, they can't do
their jobs, their livelihoods are ruined, and their families suffer.
That threat has a chilling effect on potential whistleblowers and makes
it less likely that abuses are going to be investigated and brought to
light.
The Congress has cared about this for years. It is why, in 2014, the
Congress passed legislation specifically prohibiting the revocation of
security clearances as a form of retaliation against whistleblowers.
Here is what the questions were. What happens if a whistleblower's
boss simply insists that they revoked the clearance for some other
reason? What if they say it wasn't retaliation for being a
whistleblower? Does the whistleblower have any recourse? Is there an
appeals process? Or are whistleblowers, who stick their neck out to
report waste, fraud, and abuse, just out of luck?
The Congress then stood with whistleblowers. In that same 2014 law,
Congress required the Director of National Intelligence, in
consultation with the Attorney General and the Secretary of Defense, to
develop and implement policies and practices to make that appeals
process for whistleblowers a reality. In other words, the Congress
recognized that if whistleblowers were truly going to be protected from
retaliation, there had to be a meaningful process for them to defend
themselves against agencies that always have all the power and always
have an obvious incentive to silence and remove those who speak up
about abuses
This important law was passed by Congress in July 2014. As of that
day in 2014, the Director of National Intelligence should have been
drafting those
[[Page S2257]]
policies, but they didn't do it in 2014, or in 2015, or in 2016, or in
2017, or 2018, or 2019--all those years of inaction--and certainly they
haven't done it in 2020, especially because of the pandemic, because
this is a crucial time when whistleblower protection is needed, now
more than ever, because we need those folks to be speaking truth to
policymakers.
I ask the Senate: Who is at the helm every single one of those years
of inaction? The person the Senate is thinking about promoting today,
William Evanina. Six years have passed, and Mr. Evanina has not
produced those whistleblower protection policies required by law.
During that time, there had been five Directors of National
Intelligence. The Congress made the Director of the NCSC a Senate-
confirmed position. Mr. Evanina kept his job, becoming both Acting
Director and the nominee. Meanwhile, Congress reached out to ask: What
is the story on these policies? Is anybody actually moving to protect
the whistleblowers, as Congress required in 2014?
I want to say it again. On Mr. Evanina's watch, nothing happened in
2014, nothing happened in 2015, nothing happened in 2016, and nothing
happened in 2017, 2018, 2019, and not in 2020--no policies, lots of
empty rhetoric and no policies. Without the actual policies,
whistleblowers are vulnerable, and when they tell the truth and push
for accountability, they suffer.
Every day, Donald Trump steps up his attacks on whistleblowers, on
inspectors general, and on the whole system of accountability that has
traditionally been bipartisan. Congress has pushed back, passing laws
to protect whistleblowers, but the laws have to mean something for the
sake of whistleblowers and the rule of law. Congress should not reward
those who ignore the law and leave whistleblowers vulnerable. That is
what Mr. Evanina has done for 6 years. That is why I cannot support his
confirmation. He has defied the law and failed to protect
whistleblowers.
I am going to state the obvious. When the Congress passes a law, it
has to be implemented. When Congress directs the government to protect
whistleblowers, that is something that is priority business. In 2014,
this body tried to protect whistleblowers. A law was passed. Mr.
Evanina has ignored it all these years. That is just not acceptable.
Now, with Donald Trump and his administration feeling free to
publicly attack whistleblowers again and again and conduct an
unremitting assault on the entire whistleblower system, laws to protect
them are especially important to our democracy. Day after day, we see
the costs of a campaign to silence people who speak up about abuses. We
see it in his efforts to cover up his failed, often corrupt, responses
to the COVID-19 crisis. We see it across the board.
Now is when this country needs officials who are going to demonstrate
leadership, who are going to stand up for the brave and the people who
are willing to put their neck out to report misconduct. Whistleblowers
deserve it, and the country deserves it.
Now, the last point I am going to make--my colleagues probably have
heard it, and they are going to hear it, I believe, again--is that Mr.
Evanina is going to promise once more, after 6 years of empty promises,
to complete these critical whistleblower protection policies. What I
would ask Senators is this: Enough is enough, right? After 6 years--6
years of unfulfilled promises--the Senate ought to say: The country
deserves better. The country deserves action, and the country deserves
real protection for whistleblowers.
Mr. Evanina remains the Acting Director. I want him--even after he
hasn't done it for 6 years, I want him to complete those whistleblower
protection policies. When they are completed and the law Congress
passed is implemented, it seems to me that is the time for the Senate
to discuss again whether Mr. Evanina should get a promotion.
Now, last, I just want to come back to how I started. I am not the
only one who feels this way. The country's leading whistleblower
organizations have made it clear they oppose Mr. Evanina's confirmation
due to his failure to produce policies. They include such organizations
as the Government Accountability Project, the Project on Government
Oversight, Whistleblower Aid, and National Security Counselors. It is
not just one Member of the U.S. Senate who is here to say that it is
time to finally ensure that these courageous Americans, these patriots,
who are willing to come forward when all the incentives in American
Government are to stay quiet, not put yourself at risk, don't put your
career in jeopardy--when all the incentives are for them to stay quiet,
in this country right now, we need them speaking truth more than ever
before. I oppose this nomination because there is a long, long track
record of not being willing to stand up for these courageous
whistleblowers, and I intend to vote against the nominee
I yield the floor.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, I rise today in strong support of William
Evanina to be the first Senate-confirmed Director of the National
Counterintelligence and Security Center, or NCSC. I believe Bill is an
American patriot and an American success story.
He was raised in Peckville, PA, with very modest means. He was the
first in his family to go to college. Prior to joining the FBI in 1996,
his first job was with the General Services Administration in
Philadelphia. Over his 24-year long career with the FBI, Bill
investigated organized crime and violent crimes. He investigated the 9/
11 terrorist attacks, the anthrax attacks, and the Daniel Pearl
kidnapping. Bill also led the counterespionage group at the Central
Intelligence Agency. He earned a reputation as the consummate
counterintelligence and security professional, fiercely dedicated to
the mission with unquestionable honor.
Then, in June 2014, then-Director of National Intelligence, Jim
Clapper--someone whom I know and respect very much--appointed Bill to
serve as the Director of the NCSC. Many technical and complex
activities fall under NCSC, including personnel security policy,
information technology protection standards, CI cyber operations,
supply chain risk management, threat awareness for the U.S. critical
infrastructure, and damage assessments from spies and unauthorized
disclosures. I have partnered, in my role as vice chairman, with Bill
on many topics, to include educating industry about the threats posed
by China and reforming an antiquated personnel vetting system.
The Intelligence Authorization Act for fiscal year 2016 recognized
the vital work that NCSC does and made the position subject to
Presidential nomination and Senate confirmation. In February 2018,
President Trump nominated Bill to be the first Senate-confirmed
Director. The Senate Intelligence Committee considered the nomination
in May of 2018 and unanimously--unanimously, with some concerns from my
colleague from Oregon, but unanimously--recommended his confirmation to
the full Senate.
His nomination didn't get taken up because a Member on the opposite
side had a concern. We considered his nomination again in February 2019
in the new Congress, and, again, our committee voted unanimously in
favor of his nomination.
Unfortunately, over the last 2 years, despite universal recognition
of Bill's qualifications for the position, his nomination became
entangled in unrelated matters. Despite the delay--and I think Bill had
plenty of opportunities to leave the government--Bill stayed the
course, committed to the mission above all else.
Now, I share my colleague from Oregon's concerns about
whistleblowers. I have seen this administration and this White House's
disregard for whistleblowers. I tell you this: I believe I have Bill's
commitment that the matter of processing the procedures on
whistleblower protections will be dealt with. I also feel
extraordinarily strongly that at this moment in time, when there is not
a single Senate-confirmed appointee in the whole Office of Director of
National Intelligence, now more than ever, we need at least one career
intelligence professional with a good record, confirmed by this Senate,
standing guard over an operation that right now, unfortunately, seems
to be directed too often by political appointees that, both, disregard
protection for whistleblowers and, in my
[[Page S2258]]
mind, too often disregard protections for our whole intelligence
community.
With the fact that we have now gotten rid of the unrelated matters
that were precluding Bill's confirmation by my colleague on the
majority, I think we deserve to give this nominee what he and the
country deserves--a vote. And my hope is a very strong vote of
confirmation so that we can send someone who, as a career professional,
has a commitment to holding truth first and foremost above political
interference. We need Bill Evanina confirmed in this position.
I look forward to Mr. Evanina's confirmation today so that he can
continue addressing the many important counterintelligence and security
challenges facing our Nation.
I yield the floor.
Cloture Motion
The PRESIDING OFFICER. Pursuant to rule XXII, the Chair lays before
the Senate the pending cloture motion, which the clerk will state.
The bill 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,
do hereby move to bring to a close debate on the nomination
of William R. Evanina, of Pennsylvania, to be Director of the
National Counterintelligence and Security Center. (New
Position)
Mitch McConnell, Lisa Murkowski, Chuck Grassley, Josh
Hawley, Joni Ernst, John Barrasso, John Cornyn, Shelley
Moore Capito, Deb Fischer, Rob Portman, John Thune,
Roger F. Wicker, John Boozman, Roy Blunt, Cindy Hyde-
Smith, Mike Braun, Marsha Blackburn.
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 William R. Evanina, of Pennsylvania, to be Director of
the National Counterintelligence and Security Center (New Position),
shall be brought to a close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The bill clerk called the roll.
Mr. THUNE. The following Senators are necessarily absent: the Senator
from North Carolina (Mr. Burr) and the Senator from Kansas (Mr. Moran).
Further, if present and voting, the Senator from Kansas (Mr. Moran)
would have voted ``yea''.
Mr. DURBIN. I announce that the Senator from Ohio (Mr. Brown), the
Senator from Vermont (Mr. Leahy), the Senator from Washington (Mrs.
Murray), the Senator from Vermont (Mr. Sanders), the Senator from
Hawaii (Mr. Schatz), the Senator from Michigan (Ms. Stabenow), the
Senator from Massachusetts (Ms. Warren), and the Senator from Rhode
Island (Mr. Whitehouse) are necessarily absent.
The PRESIDING OFFICER (Mr. Cramer). Are there any other Senators in
the Chamber desiring to vote?
The yeas and nays resulted--yeas 83, nays 7, as follows:
[Rollcall Vote No. 82 Ex.]
YEAS--83
Alexander
Baldwin
Barrasso
Bennet
Blackburn
Blunt
Booker
Boozman
Braun
Cantwell
Capito
Cardin
Carper
Casey
Cassidy
Collins
Coons
Cornyn
Cortez Masto
Cotton
Cramer
Crapo
Cruz
Daines
Durbin
Enzi
Ernst
Feinstein
Fischer
Gardner
Gillibrand
Graham
Grassley
Harris
Hassan
Hawley
Heinrich
Hoeven
Hyde-Smith
Inhofe
Johnson
Jones
Kaine
Kennedy
King
Klobuchar
Lankford
Lee
Loeffler
Manchin
McConnell
McSally
Menendez
Murkowski
Murphy
Paul
Perdue
Peters
Portman
Reed
Risch
Roberts
Romney
Rosen
Rounds
Rubio
Sasse
Schumer
Scott (FL)
Scott (SC)
Shaheen
Shelby
Sinema
Smith
Sullivan
Tester
Thune
Tillis
Toomey
Udall
Warner
Wicker
Young
NAYS--7
Blumenthal
Duckworth
Hirono
Markey
Merkley
Van Hollen
Wyden
NOT VOTING--10
Brown
Burr
Leahy
Moran
Murray
Sanders
Schatz
Stabenow
Warren
Whitehouse
The PRESIDING OFFICER. On this vote, the yeas are 83, the nays are 7.
The motion is agreed to.
[...]
The PRESIDING OFFICER (Mr. Perdue). Under the previous order, all
postcloture time is expired.
The question is, Will the Senate advise and consent to the Evanina
nomination?
Mr. CARDIN. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The clerk will call the roll.
The senior assistant legislative clerk called the roll.
Mr. THUNE. The following Senators are necessarily absent: the Senator
from North Carolina (Mr. Burr) and the Senator from Kansas (Mr. Moran).
Further, if present and voting, the Senator from Kansas (Mr. Moran)
would have voted ``yea.''
Mr. DURBIN. I announce that the Senator from Ohio (Mr. Brown), the
Senator from Vermont (Mr. Leahy), the Senator from Washington (Mrs.
Murray), the Senator from Vermont (Mr. Sanders), the Senator from
Hawaii (Mr. Schatz), the Senator from Michigan (Ms. Stabenow), and the
Senator from Rhode Island (Mr. Whitehouse) are necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 84, nays 7, as follows:
[Rollcall Vote No. 83 Ex.]
YEAS--84
Alexander
Baldwin
Barrasso
Bennet
Blackburn
Blunt
Booker
Boozman
Braun
Cantwell
Capito
Cardin
Carper
Casey
Cassidy
Collins
Coons
Cornyn
Cortez Masto
Cotton
Cramer
Crapo
Cruz
Daines
Durbin
Enzi
Ernst
Feinstein
Fischer
Gardner
Gillibrand
Graham
Grassley
Harris
Hassan
Hawley
Heinrich
Hoeven
Hyde-Smith
Inhofe
Johnson
Jones
Kaine
Kennedy
King
Klobuchar
Lankford
Lee
Loeffler
Manchin
McConnell
McSally
Menendez
Murkowski
Murphy
Paul
Perdue
Peters
Portman
Reed
Risch
Roberts
Romney
Rosen
Rounds
Rubio
Sasse
Schumer
Scott (FL)
Scott (SC)
Shaheen
Shelby
Sinema
Smith
Sullivan
Tester
Thune
Tillis
Toomey
Udall
Van Hollen
Warner
Wicker
Young
NAYS--7
Blumenthal
Duckworth
Hirono
Markey
Merkley
Warren
Wyden
NOT VOTING--9
Brown
Burr
Leahy
Moran
Murray
Sanders
Schatz
Stabenow
Whitehouse
The nomination was confirmed.
