Congressional Record, Volume 161 Issue 73 (Wednesday, May 13, 2015)

[Congressional Record Volume 161, Number 73 (Wednesday, May 13, 2015)]
[Senate]
[Pages S2821-S2830]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

ENSURING TAX EXEMPT ORGANIZATIONS THE RIGHT TO APPEAL ACT--MOTION TO
PROCEED

The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of the motion to proceed to H.R. 1314, which the
clerk will report.
The senior assistant legislative clerk read as follows:

Motion to proceed to Calendar No. 58, H.R. 1314, a bill to
amend the Internal Revenue Code of 1986 to provide for a
right to an administrative appeal relating to adverse
determinations of tax-exempt status of certain organizations.

The PRESIDING OFFICER. The Senator from Arkansas.

Our Country's Word on the International Stage

Mr. COTTON. Mr. President, it has been nearly 2 years since the
Syrian tyrant Bashar al-Assad attacked his own people with sarin gas,
crossing President Obama's so-called red line. At the time, President
Obama grudgingly called for airstrikes against Assad but hesitated at
the moment of decision. When Secretary of State Kerry opened the door
to a negotiated solution, Vladimir Putin barged in, allowing Assad the
pretext of turning over his chemical weapons to avoid U.S. airstrikes.
The amen chorus proclaimed a strategic master stroke.
But it wasn't so. Street-smart observers were onto Assad's game. He
only needed to keep a tiny fraction of his chemical stockpile to retain
his military utility. Syria thus could open most--but not all--of its
facilities at no cost to the regime.
In fact, because most of Syria's chemical agents were old,
potentially unreliable yet still dangerous, the regime actually
benefitted by getting the West to pay for the removal of the old
stockpiles.
And where are we now? Exactly where a few of my colleagues and I
warned we would be. News reports just this week indicate that the
Organisation for the Prohibition of Chemical Weapons has discovered new
evidence of sarin gas and VX nerve agent--9 months after the
organization declared Syria had disposed of all of its chemical
weapons. In the meantime, Assad has simply shifted to chlorine gas for
chemical attacks against his own people, which is also prohibited by
the Chemical Weapons Convention, even though Syria signed that
convention as part of President Obama's deal in 2013.
I am appalled by these reports that the Syrian regime has obtained
stocks of chemical weapons, but I cannot say I am surprised. Anyone
with eyes to see knew the message President Obama had sent. When he
flinched in 2013 in the face of Assad's brazen and brutal

[[Page S2822]]

use of sarin gas on civilians, it only emboldened Assad to continue
testing U.S. resolve.
Of course, the fallout goes far beyond Syria. The failure to enforce
the U.S. red line against the use of chemical weapons in Syria has
severely damaged U.S. credibility around the world. I hear this message
from leaders of countries not just in the region but across the globe.
The message sounds most loudly with Iran, where the Ayatollahs continue
their headlong pursuit of nuclear weapons capabilities with impunity.
Regrettably, then, we are reaping the bitter fruits of President
Obama's weakness in 2013.
There are two simple lessons we must draw from this sad sequence of
events. First, our country's word on the international stage must be
good and it must be credible. When a President draws a red line and
fails to back it up, it only emboldens our enemies and makes America
appear as the weak horse. Remember, Osama bin Laden famously said that
when given the choice between a weak horse and a strong horse, people
will, by nature, root for the strong horse. Under Barack Obama, America
increasingly looks like the weak horse.
Second, we cannot trust tyrannical regimes to abide by agreements
unless we force them to do so. This means that any agreement with Iran
about its nuclear weapons program must contain the most stringent
conditions, impose the most intrusive verification procedures, and
ultimately prevent Iran from obtaining a nuclear weapons capability.
The framework agreement President Obama has reached with Iran meets
none of those standards. Moreover, the administration's concealment of
Syria's cheating surely foreshadows how it will look the other way when
Iran cheats on any final deal.
Assad's cheating on his chemical weapons agreement today is
devastating for the people of Syria, but Iran's cheating on a nuclear
agreement in the future could be catastrophic for the United States and
the world at large.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. CORNYN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

PATRIOT Act

Mr. CORNYN. Mr. President, in February, the Director of the National
Counterterrorism Center estimated that nearly 20,000 foreign fighters
had joined ISIS or other related groups in Syria. Among those, some
3,000 were from Western countries. In other words, many of them either
had American passports or those that are part of the visa waiver
program and could travel, really, without anything other than that
passport in the country. Over 150 were from the United States.
Just last week, in describing the widespread nature of this growing
threat, FBI Director James Comey said that the FBI is working on
hundreds of investigations in the United States, hundreds of
investigations. In fact, according to Comey, all 56 of the FBI's field
divisions now have open inquiries regarding suspected cases of
homegrown terrorism--again, not people coming from Syria or Afghanistan
or someplace in the Middle East, these are often Americans who have
become radicalized due to the use of social media or the Internet--much
as 5 years ago we saw at Fort Hood, TX, a major in the U.S. Army, Nidal
Hasan, who had been radicalized by a cleric, Anwar al-Awlaki.
Major Hasan actually pulled out his weapon and killed 13 people, 12
uniformed military, 1 civilian, and shot roughly 30 more in a terrible
terrorist attack at Fort Hood, TX.
So today we are not just worried about a major attack on a
significant cultural or economic hub, we also have to worry about ISIS-
inspired terrorists all around the country, even as we witnessed in my
home State of Texas just on May 3.
When you begin to look at the story--that I will ask to be made part
of the Record--written by the New York Times on May 11, 2015, it
explains how this new threat of homegrown terrorism is inspired. I will
quote a few pieces of it:

Well, there is a question--as the article goes on to say--whether or
not Mr. Simpson and his colleague, who came, I believe, from Phoenix,
AZ, and went on to Garland, TX, to carry out this attack--whether they
were actually recruited ahead of time by ISIL or whether ISIL just
claimed credit after the fact. But the article goes on to say:

It was the first time that the terror group had tried to
claim credit for an operation carried out in its name on
American soil. . . . Yet Mr. Simpson appears to have been
part of a network of Islamic State adherents in several
countries, including the group's hub in Syria, who have
encouraged attacks and highlighted the Texas event as a
worthy target.

Mr. President, I ask unanimous consent to have printed in the Record,
following my remarks, this New York Times article from May 11, 2015,
and a Wall Street Journal article from May 12, 2015, by Michael B.
Mukasey.
So what FBI Director Comey has expressed concern about recently is
apparently very real. It is as real as the daily newspaper recounting
the attack on May 3 in Garland, TX, of all places.
Terrorists are sending a clear signal to those in the United States
and other Western countries: If you can't fight us abroad, we are going
to bring the fight to you in your own country.
This heightened threat environment has led Pentagon officials to
raise the security level at U.S. military bases. The last time the
threat level was raised to this level was the 10th anniversary of the
September 11 attacks.
I still remember when the former admiral, Bobby Inman, who served for
a long time in the Navy and then also in the intelligence community,
was asked about 9/11. He said: It wasn't so much a failure of
intelligence, as it was a failure of imagination.
Nobody imagined that terrorists would hijack a plane and fly it into
one of our Nation's highest skyscrapers, thus, in the process, killing
approximately 3,000 people.
So we need to remember not to have a failure of imagination when it
comes to the tactics used by terrorists and those who inspire them
abroad. Remarks like those from Director Comey and the Director of our
National Counterterrorism Center are certainly troubling ones for us to
hear, and it counsels caution.
While the United States has been mostly successful in thwarting
attacks on our homeland since 9/11, the threats are still very real. In
fact, the terrorist threat has evolved and become more complex in
recent years.
In Texas, we rightly recognize that the role of government should be
constrained to focus on core functions. At the Federal level, of
course, this means things such as passing a budget. But surely it also
means protecting our country and its security and the security of the
American people.

That brings me to some business that we are going to have to conduct
here in the Congress sometime within the next couple of weeks before
certain provisions of the U.S. PATRIOT Act expire on June 1. I believe
that if we allow these provisions to expire, our homeland security will
be at a much greater risk. So I think we need to talk a little bit
about it and explain not only the threat but what our intelligence
community and our national security officials are doing, working with
Congress and the administration, to make sure Americans are safe, and
the PATRIOT Act is part of it.
I recognize there are many who perhaps haven't read the PATRIOT Act
or whose memories have perhaps dimmed since those terrible events on 9/
11 and who think we don't need the PATRIOT Act. But I would argue that
the PATRIOT Act serves as a tool for intelligence and law enforcement
officials to protect our Nation from those who are seeking to harm us.
Three of those useful tools will expire at the end of the month,
including section 215, which allows the National Security Agency to
access certain types of data, including phone records.

[[Page S2823]]

There has been a lot of misunderstanding and, frankly, some of it
downright deceptive, about what this does, when, in fact, section 215
is a business records collection provision that happens to be applied
to collecting phone records but not the content of phone records. This
is one of the misleading statements made by some folks who think we
ought to let this provision expire.
Right now, under current law, which is set to expire June 1, our
intelligence community can get basically three types of information
about a phone record: the calling and receiving number, the time of the
call, and the duration. That is it--no content, no names or addresses.
You can't even get cell tower identification that would tell one where
the call is coming from.
Much has been said about this program, and, as I said, much of it
misleading or downright false, but I want to focus now on the oversight
that is built into this program because I think Americans understand we
need to take steps in a dangerous world to keep the American people
safe, but they also value their privacy, and justly so. We all do. So
it is important to remind the American people and our colleagues as we
take up this important provision of law about what we have already
built into the law to protect the privacy of American citizens who are
not engaged in any communication with foreign terrorists or being
inspired by foreign terrorists to commit acts of terrorism here in the
homeland.
Let me talk about the barriers we have created in the law for an
NSA--National Security Agency--analyst to overcome before seeing any
real information from this data. First, for the NSA to have access to
phone records at all--at all--a special court must approve an order
requiring telephone companies to provide those call records to the
Agency. That order has been in place since roughly 2006, where the
Foreign Intelligence Surveillance Court, the specialized court created
by Congress for this purpose, has issued an order requiring the
telephone companies to turn over these call records--again, no content,
no name and address, but merely the sending number, the receiving
number, and the duration. That is the core information which is
required.
It is important to point out that these records include only the most
basic limited information. They do not include the information I
suggested earlier--the content, names and addresses, and the like.
So the National Security Agency is not, as some have assumed wrongly,
able to retrieve old phone conversations. They do not collect that sort
of information, nor are they able to simply listen in on any American's
phone conversations under this authority. That would be a violation of
the protections Congress has put in place under the provisions of the
PATRIOT Act.
Before an analyst at the NSA can even search for or query the
database, they must go through even more controls, and these are
important. To be granted the ability to search the database, the
analyst must demonstrate to the FISA Court--the Foreign Intelligence
Surveillance Court created by Congress for this purpose--that there is
a reasonable, articulable suspicion that the phone number is associated
with terrorism.
This is similar--not the same but similar--in many respects to the
protections offered in a criminal case under the Fourth Amendment to
the Constitution where law enforcement agencies would have to come in
and establish probable cause that a crime has been committed before a
search would be allowed. But since this is an investigation into
foreign-induced terrorist activity, the standard Congress set was a
reasonable, articulable suspicion that the phone number is associated
with terrorism. If the court determines that standard has been met,
they can grant access to the conversation but not under any other
circumstance.
If the NSA believes the phone number belongs to someone who intends
to attack our country, the Agency must go back to court another time to
be granted other abilities to surveil that individual.
In addition to these checks and balances between the National
Security Agency and the courts, all three branches of government have
oversight over this program. And strong oversight of the intelligence
community is absolutely essential to safeguarding our freedoms and our
liberty.
Because parts of this program are by and large classified, you are
not going to hear public debates about it. Indeed, that puts defenders
of the program at some disadvantage to those who attack it--sometimes
in a misleading or deceptive sort of way--because it is very difficult
to counter that with factual information when they are talking about a
classified program, or parts of which are classified. It is important
that our enemies don't know exactly what we are doing because then they
can wire around it.
We live, of course, in a world with many threats, as I said, many of
them in our backyard. Many of them can be thwarted with good
intelligence and law enforcement. And I make that distinction on
purpose--intelligence and law enforcement. Law enforcement--as we
learned with 9/11, we can't just treat terrorism as a criminal act. It
is a criminal act, but if we are going to stop it, we need access to
good intelligence to thwart it before that act actually occurs. It is
not enough to say to the American people: Well, we will deploy all of
the tools available to law enforcement to prosecute the person who
murders innocent people. We need to keep the commitment to protect them
from that innocent slaughter in the first place, and the only way we do
that is by using legitimate tools of intelligence, such as this program
I am discussing.
Earlier this year, for example, the United States frustrated a
potential attack by a man from Ohio. He was an ISIS sympathizer and had
plans to bomb the building we are standing in today, the U.S. Capitol.
That potential attack was thwarted by the use of good intelligence
under the limitations and strictures and procedures I described a
moment ago. Over the past 2 years, the FBI has told us they have
stopped 50 American citizens from traveling overseas and joining the
Islamic State and then coming back. So clearly the intelligence
community has a vital role to play in safeguarding the American people
in our homeland.
Some in the intelligence community have said the bulk data collection
I have described here briefly has led to a safer United States, and it
is because of programs such as these that we are much better off than
we were pre-9/11. That is very important because the last thing I would
think we would want to do here in Congress is to return us to a pre-9/
11 mentality when it comes to the threat of terrorism both abroad and
here at home and to make it harder for our national security personnel
to protect the American people.
I believe the portion of the PATRIOT Act in question provides our
intelligence community with the tools they need in order to effectively
protect all Americans.
I have been briefed on this program. We just had a briefing yesterday
by the Office of the Director of National Intelligence, by the FBI
Director, by DOJ personnel, and by the leader of the National Security
Agency. It was held downstairs in a secure facility because, as I said,
much of it was classified. Much of it we can't talk about without
alerting our adversaries to ways to circumvent it. But all responsible
Members of Congress have taken advantage of the opportunity to learn
about how this program works as part of our oversight responsibilities.
I remain convinced that this program, like many others, has helped to
keep us safe while using appropriate checks and balances to ensure that
our liberties remain intact. And Congress, by maintaining strong
oversight of these and other government programs, can have a win-win
situation that both protects American lives and protects American
liberties.
Mr. President, I want to draw my colleagues' attention to an opinion
piece that appeared today in the Wall Street Journal that was written
by Michael B. Mukasey, who, of course, was a former U.S. district judge
and more recently Attorney General of the United States from 2007 to
2009. General Mukasey writes in this article about the Second Circuit
opinion that has prompted so much recent discussion about section 215
of the PATRIOT Act and the bulk metadata collection process I described
a moment ago. I think he makes some very important points.

[[Page S2824]]

First of all, he makes the important point that it is a good thing
Congress has created a special Foreign Intelligence Surveillance Court
because the Second Circuit Court of Appeals, no matter how good they
are as judges, simply doesn't have the experience to deal with parsing
the law on intelligence matters and things such as this 215 provision I
talked about a moment ago.
He makes the important point that intelligence by its nature is
forward-looking and our criminal justice system, which is what most
courts have experience with, is backward-looking--in other words,
something bad has already happened and the police and investigators and
prosecutors are trying to bring somebody to justice for committing a
criminal act. But our intelligence community is supposed to look
forward and to help prevent those terrible accidents or incidents from
occurring in the first place.
The second point General Mukasey makes in this article is that the
Second Circuit panel of judges assumes that many Members of Congress
are simply unaware of the provisions of the PATRIOT Act I mentioned
earlier--section 215, this metadata collection--which is a terrible and
glaring mistake on the part of the Second Circuit panel.
As I pointed out yesterday, just as we have done many times
previously, Members of the Senate and the Congress generally have
regular or at least periodic briefings on these intelligence programs
as part of our oversight responsibilities. For the Second Circuit panel
to suggest that Congress didn't know what it was talking about when it
authorized these programs and when it wrote this provision of the law
is simply erroneous.
The third point General Mukasey makes is that the judges didn't even
stop the program in the first place. So it makes one really wonder why
they handed down their opinion about 3 weeks before the expiration of
this provision, when Congress is going to have to take up this matter
anyway, unless they wanted to have some impact on our deliberations
here.
What Attorney General Mukasey suggested, I think, is good advice.
There needs to be an appeal to the Second Circuit Court en banc and
then to the U.S. Supreme Court to get a final word. We don't need to
settle on what he calls a ``Rube Goldberg'' procedure that would have
data stored and searched by the telephone companies, he says, whose
computers can be penetrated and whose employees have neither the
security clearance nor the training of the NSA staff.
Mr. President, I commend this article to my colleagues.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the New York Times, May 11, 2015]

Clues on Twitter Show Ties Between Texas Gunman and ISIS Network

(By Rukmini Callimachi)

Hours before he drove into a Texas parking lot last week
and opened fire with an assault rifle outside a Prophet
Muhammad cartoon contest, Elton Simpson, 30, logged onto
Twitter.
``Follow @_AbuHu55ain,'' Mr. Simpson posted, promoting a
Twitter account believed to belong to Junaid Hussain, a young
computer expert from Birmingham, England, who moved to Syria
two years ago to join the Islamic State and has become one of
the extremist group's celebrity hackers.
This seemingly routine shout-out is an intriguing clue to
the question of whether the gunmen, Mr. Simpson and Nadir
Soofi, 34, both of Phoenix, were acting in concert with the
Islamic State, also known as ISIS or ISIL, in carrying out an
attack outside a community center in Garland, Tex. The
Islamic State said two days later that the two men, who were
killed by officers after opening fire, were ``soldiers of the
Caliphate.'' It was the first time that the terror group had
tried to claim credit for an operation carried out in its
name on American soil.
As the gunmen were driving toward the Curtis Culwell
Center, Mr. Hussain logged onto Twitter himself from half a
world away, firing off a series of posts in the hour before
the attack began at 7 p.m. on May 3. One message posted to
his account about 5:45 p.m. seemed to predict imminent
violence: ``The knives have been sharpened, soon we will come
to your streets with death and slaughter!''
After the attack, Mr. Hussain was in the first wave of
people who praised the gunmen, before his account was
suspended.
Law enforcement officials have not presented any conclusive
evidence that the Islamic State planned or directed the
attack. Yet Mr. Simpson appears to have been part of a
network of Islamic State adherents in several countries,
including the group's hub in Syria, who have encouraged
attacks and highlighted the Texas event as a worthy target.
Counterterrorism officials say the case shows how the
Islamic State and its supporters use social media to
cheerlead for attacks without engaging in the secret
training, plotting and control that has long characterized Al
Qaeda. But a close look at Mr. Simpson's Twitter connections
shows that he had developed a notable online relationship
with some of the Islamic State's best-known promoters on the
Internet, and that they actively encouraged such acts of
terror.
Speaking of the Texas case last week, James B. Comey, the
director of the Federal Bureau of Investigation, said the
distinction between an attack ``inspired'' by a foreign
terrorist group and one ``directed'' by the group ``is
breaking down.''
``It's not a useful framework,'' he added.
Mr. Simpson was radicalized years before the Islamic State
announced in 2014 that it was creating a caliphate, a unified
land for Muslims, and drew global attention for territorial
gains and brutal violence. He was investigated by the F.B.I.
starting in 2006 and was sentenced to probation in 2011 for
lying to investigators. But like many young Muslims drawn by
the sensational image of the Islamic State, he
enthusiastically joined its virtual community of supporters.
An analysis of Mr. Simpson's Twitter account by the SITE
Intelligence Group, which tracks extremist statements, found
that Mr. Simpson followed more than 400 other accounts,
including ``hardcore I.S. fighters from around the world.''
They included an alleged British fighter for the Islamic
State, known as Abu Abdullah Britani, who according to SITE
is believed to be Abu Rahin Aziz, a radical British national
who skipped bail to join the terror group. They also included
an alleged American fighter called Abu Khalid Al-Amriki and
numerous female Islamic State jihadists.
Many of Mr. Simpson's posts announced the new Twitter
handles of Islamic State members whose accounts the social
media company had suspended, messages commonly called
``shout-outs.''
``He was taking part in shout-outs of ISIS accounts that
were previously suspended, and this shows a pretty deep
involvement in the network online,'' says J. M. Berger, a
senior fellow at the Brookings Institution and co-author of a
book about the Islamic State. ``He was wired into a
legitimate foreign fighters network.''
Starting last fall, the Islamic State has repeatedly called
for attacks in the West by supporters with no direct
connection to its core leadership, and there have been at
least six attacks in Europe, Canada and Australia by gunmen
who appeared to have been inspired by the group. Each
attacker left an online trail similar to that of Mr. Simpson,
though not all were in contact with Islamic State operatives
in Syria.
A review of Mr. Simpson's Twitter account shows that he
interacted not just with sympathizers of the Islamic State,
but also with fighters believed to be in Syria and Africa.
Some of these fighters later posted on Twitter details of Mr.
Simpson's biography not yet in the public sphere, suggesting
that he had shared details about his life with them.
``The thing that clearly stands out if you peruse the Texas
shooter's timeline is his third to last tweet,'' the one
promoting Mr. Hussain, said Daveed Gartenstein-Ross, a senior
fellow who researches extremism at the Foundation for the
Defense of Democracies and who shared a PDF of Mr. Simpson's
Twitter history.
Veryan Khan, who helps run the Terrorism Research and
Analysis Consortium, said that Mr. Simpson probably urged
others to follow Mr. Hussain in order to draw broader
attention to his forthcoming attack. ``He wanted to make sure
everyone in those circles knew what he'd done,'' she said.
``It was attention-seeking--that's what it looks like,''
added Ms. Khan, whose organization tracks some 5,000 Islamic
State figures and supporters.
While still living in Birmingham, Mr. Hussain rose to
notoriety as a hacker working under the screen name Tr1Ck,
and he was believed to be a core member of what was called
TeaM p0isoN. The team claimed a string of high profile
cyberattacks, hacking into a Scotland Yard conference call on
combating hackers and posting Facebook updates to the pages
of its chief executive, Mark Zuckerberg, and former President
Nicolas Sarkozy of France.
Mr. Hussain was eventually arrested, and he served a six-
month prison sentence before traveling to Syria. He has since
been linked to a number of Islamic State hacking attacks
overseas, though some security officials have doubts about
his role.
Another well-known promoter of the Islamic State who
engaged with Mr. Simpson was a jihadist known on Twitter as
Mujahid Miski, believed to be Mohamed Abdullahi Hassan, a
Somali-American from Minnesota. Though Mr. Hassan lives in
Somalia, he has emerged as an influential recruiter for the
group.
On April 23, the account Mujahid Miski shared a link on
Twitter to a listing for the Muhammad cartoon contest and
goaded his followers to attack it. ``The brothers from the
Charlie Hebdo attack did their part. It's time for brothers
in the #US to do their part,'' he wrote. Among the nine
people who

[[Page S2825]]

retweeted his call to violence, according to SITE, was Mr.
Simpson.
Three days later, Mr. Simpson reached out to Mujahid Miski
on Twitter, asking him to message him privately. Whether they
actually communicated, or what they may have said, is not
publicly known. Minutes before Mr. Simpson arrived at the
cartoon event in Garland and began shooting, he went on
Twitter one last time to link the attack to the Islamic
State. ``The bro with me and myself have given bay'ah to
Amirul Mu'mineem,'' he wrote, using the vocabulary of the
Islamic State to say that they had given an oath of
allegiance to the Emir of the Believers--the leader of the
Islamic State, Abu Bakr al-Baghdadi.
``May Allah accept us as mujahedeen,'' he wrote, adding the
hashtag ``#TexasAttack.''
Among those who retweeted this last post was Mr. Hussain,
the Islamic State hacker in Syria. ``Allahu Akbar!!!!'' he
wrote. ``2 of our brothers just opened fire at the Prophet
Muhammad (s.a.w) art exhibition in Texas!'' he added, using
the Arabic abbreviation for ``peace be upon him.''
After Mr. Simpson's death, Mujahid Miski tweeted a series
of posts, calling Mr. Simpson ``Mutawakil,'' ``One who has
faith,'' a variation on Mr. Simpson's Twitter handle,
``Atawaakul,'' meaning ``To have faith.''
``I'm gonna miss Mutawakil,'' Mujahid Miski wrote. ``He was
truly a man of wisdom. I'm gonna miss his greeting every
morning on twitter.''
____

[From the Wall Street Journal, May 12, 2015]

Impeding the Fight Against Terror

The appeals-court ruling on surveillance will have damaging
consequences if Obama doesn't appeal

(By Michael B. Mukasey)

Usually, the only relevant objections to a judicial opinion
concern errors of law and fact. Not so with a federal appeals
court ruling on May 7 invalidating the National Security
Agency's bulk collection of telephone metadata under the USA
Patriot Act.
Not that the ruling by the three-judge panel of the Second
Circuit in New York lacks for errors of law and fact. The
panel found that when the Patriot Act, passed in the
aftermath of 9/11, permitted the government to subpoena
business records ``relevant'' to an authorized investigation,
the statute couldn't have meant bulk telephone metadata--
consisting of every calling number, called number, and the
date and length of every call.
That ends up subpoenaing everything, the panel reasoned,
and what is ``relevant'' is necessarily a subset of
everything. In aid of this argument the panel summons not
only the dictionary definition of an investigation, but also
the law that relates to a grand-jury subpoena in a criminal
case, which limits the government to ``relevant''
information.
Yet the judicial panel failed to consider the purpose of
the statute it was analyzing. The Patriot Act concerns
intelligence gathering, which is forward-looking and
necessarily requires a body of data from which potentially
useful information about events in the planning stage may be
gathered. A grand jury investigation, by contrast, is
backward-looking, and requires only limited data relating to
past events. A base of data from which to gather intelligence
is at least arguably ``relevant'' to an authorized
intelligence investigation.
Equally serious an error is the panel's suggestion that
many, perhaps most, members of Congress were unaware of the
NSA's bulk metadata collection when they repeatedly
reauthorized the statute, most recently in 2011. The judges
suggest that an explanation of the program was available only
in ``secure locations, for a limited time period and under a
number of restrictions.'' In addition to being given briefing
papers, lawmakers had available live briefings, including
from the directors of the FBI and the National Intelligence
office.
In any event, no case until the judicial panel's ruling
last week has ever held that a federal tribunal may engage in
telepathic hallucination to figure out whether a statute has
the force of law.
The panel adds that because the program was highly
classified, Congress didn't have the benefit of public
debate. Which is to say, no truly authorized secret
intelligence-gathering effort can exist unless we let in on
the secret those from and about whom the intelligence is to
be gathered. Overlooked in this exertion is the Founders'
foresight about the need for secrecy--expressed in the body
of the Constitution in the requirement that each legislative
house publish a journal of its proceedings ``excepting such
Parts as may in their Judgment require Secrecy.''
But isn't the misbegotten ruling by this trio of federal
judges correctable on appeal? Or won't it be made moot
because the Patriot Act must be reauthorized by June 1 and
Congress will either enact substitute legislation, or let the
statute lapse, or simply reauthorize it with full knowledge
of how the program works? Here the Second Circuit's opinion
is problematic in ways not immediately apparent.
The judges didn't reverse the lower-court opinion upholding
the NSA data-collection program and order the program
stopped. Rather, the panel simply vacated that opinion and
sent the case back to the lower court to decide whether it is
necessary to stop the program now. By rendering its order in
a non-final form, the panel made it less likely that the
Supreme Court would hear the case even if asked, because the
justices generally won't take up issues that arise from non-
final orders.
Moreover, the opinion tries to head off the argument that
if Congress reauthorizes the Patriot Act in its current form,
lawmakers will have endorsed the metadata program. The panel
writes: ``If Congress fails to reauthorize Section 215
itself, or re-enacts Section 215 without expanding it to
authorize the telephone metadata program, there will be no
need for prospective relief, since the program will end.''
That is, unless Congress adopts the panel's view of what
Congress has done, rather than its own view of what it has
done, the program must end.
Then there is the opinion's timing. The case was argued
eight months ago. This opinion, or one like it, easily could
have been published in time for orderly review by the Supreme
Court so the justices could weigh matters arguably critical
to the nation's security. Or the panel could have followed
the example of the D.C. Circuit and the Ninth Circuit--which
have had cases involving the NSA's surveillance program
pending for months--and refrained from issuing an opinion
that could have no effect other than to insert the views of
judges into the deliberations of the political branches.
What to do? An administration firmly committed to
preserving all surveillance tools in a world that now
includes al Qaeda, Islamic State and many other terror
groups, would seek a quick a review by the Supreme Court. But
President Obama has already stated his willingness to end
bulk collection of metadata by the government. Instead, he
wants to rely on a Rube Goldberg procedure that would have
the data stored and searched by the telephone companies
(whose computers can be penetrated and whose employees have
neither the security clearance nor the training of NSA
staff).
The government, under Mr. Obama's plan, would be obliged to
scurry to court for permission to examine the data, and then
to each telephone company in turn, with no requirement that
the companies retain data and thus no guarantee that it would
even be there. These constitute burdens on national security
with no meaningful privacy protection.
The president's plan would make protecting national
security more difficult. We would all have been better off if
the Second Circuit panel had avoided needless complication
and instead emulated the judicial modesty of their Ninth
Circuit and D.C. Circuit colleagues.

Mr. CORNYN. I yield the floor to the majority leader.
The PRESIDING OFFICER. The majority leader.

Unanimous Consent Agreement--Executive Calendar

Mr. McCONNELL. Mr. President, I ask unanimous consent that at 1 p.m.
today, the Senate proceed to executive session to consider Executive
Calendar No. 80, the nomination of Sally Yates to be Deputy Attorney
General; that there be 1 hour for debate, equally divided in the usual
form; that upon the use or yielding back of time, the Senate proceed to
vote without intervening action or debate on the nomination; that
following disposition of the nomination, the motion to reconsider be
considered made and laid upon the table; that no further motion be in
order to the nomination; that any statements related to the nomination
be printed in the Record; that the President be immediately notified of
the Senate's action, and the Senate then resume legislative session and
the motion to proceed to H.R. 1314.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator from Rhode Island.
Mr. WHITEHOUSE. Mr. President, I ask unanimous consent to speak for
up to 15 minutes as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.

Climate Change

Mr. WHITEHOUSE. Mr. President, I am here today for the 99th time to
remind us that we are sleepwalking our way to a climate catastrophe,
and that it is time to wake up.
NOAA, the National Oceanic and Atmospheric Administration of the
United States, recently announced an ominous milestone. This March, for
the first time in human history, the monthly average of CO2
in our atmosphere exceeded 400 parts per million. This chart shows the
global concentration of carbon dioxide over the last few years as
measured by NOAA. The level varies with the seasons. The Earth sort of
inhales and exhales carbon dioxide as the seasons pass. But overall, we
can see the steady prominent upward march of CO2 levels,
rising right here to above 400 parts per million for the month of March
2015.
Scientists at NOAA's Mauna Loa Observatory in Hawaii first measured
an atmospheric concentration of CO2 above 400 parts per
million in 2013--for the very first time. It reached up and it

[[Page S2826]]

touched 400 parts per million for the first time and then receded
again. Now, 2 years later, as we continue dumping carbon pollution into
the atmosphere, the average weekly air sample from NOAA's entire global
network of sampling stations measured an average--a month-long
average--of 400 parts per million for the entire month of March. That
is a daunting marker.
Global carbon concentrations haven't been this high for at least
800,000 years, much longer--much longer--than humankind has walked the
Earth. Every year, that concentration increases.
The fact that increasing levels of carbon in the atmosphere warm the
planet has been established science for 150 years. Science on this was
being published in scientific journals when Abraham Lincoln in his top
hat was walking around Washington. We have pumped more and more carbon
pollution into the atmosphere, and we have measured corresponding
changes in global temperatures.
Now, there is some mischief afoot, people who cherry-pick the data to
create false impressions--to create false doubt. Well, the honest thing
to do is to look at all of the data. When we look at all of the data,
we see long-term warming. We see warming so obvious that scientists
call the evidence unequivocal--unequivocal. That is about as strong a
science word as we can have.
Evidence of the changing climate, the consequences of unchecked
carbon pollution, abounds: more extreme weather, rising sea levels, and
warming and acidifying oceans--all as predicted. These changes are
already starting to hurt people, through more severe heat waves,
parched fields, flooded towns and homes, altered ecosystems, and
threatened fisheries. We have certainly seen the fisheries change at
home in my State of Rhode Island. We are already starting to pay the
price of our continued and reckless burning of fossil fuels.
Dr. James Butler, the Director of NOAA's Global Monitoring Division,
says:

Elimination of about 80 percent of fossil fuel emissions
would essentially stop the rise in carbon dioxide in the
atmosphere, but concentrations of carbon dioxide would not
start decreasing until even further reductions are made.

We need to cut our use of fossil fuels, we need to cut energy waste,
and we need to generate more of our energy from clean and renewable
sources. We need to do it, and we can do it. We have the technologies
and the policies available right now. We can choose to level the
playing field for clean energy, to make polluters pay for the climate
costs of their pollution, and to move forward to a low-carbon economy--
the one with the green jobs, with the American innovation, with the
safer climate. But we are not going to get there with business as
usual.
That brings me to the fast-track trade bill, which, I am glad to say,
failed its procedural vote in the Senate this week--a bill that would
make it easier for the administration to commit the United States to
new sweeping trade agreements.
The first agreement waiting to get through is the Trans-Pacific
Partnership--some call it the TPP--which is being sold as ``a trade
deal for the 21st century.'' But when it comes to climate change, the
fast-track bill and the Pacific trade bill aren't 21st century
solutions. They are business as usual.
Past trade deals have not been kind to workers in Rhode Island. I
have been to Rhode Island factories and seen the holes in the floor
where machinery had been unbolted and shipped to other countries for
foreign workers to perform the same job for the same customers on the
same machines. That is what we saw from trade bills. The trade
advocates always say it is going to be wonderful, but then what do we
see? Jobs offshored again and a huge trade deficit.
Past U.S. trade deals have required participating countries to join
some multilateral environmental agreements, including agreements to
protect endangered species, whales, and tuna; to help keep the oceans
free of pollution; and to protect the ozone layer by reducing the use
of HFCs and other ozone-depleting gases. But I haven't seen much
enforcement, and everywhere we look things are getting worse. I am not
impressed.
When it comes to climate change, the fast-track bill is silent. There
is no mention of, let alone protection for, commitments the United
States and other countries might make to cut carbon pollution.
The United Nations Framework Convention on Climate Change is the main
international agreement for dealing with climate change. The Senate
ratified this treaty in 1992, and since then, under various
administrations, the United States has taken a leading role under the
framework to reach global accord and, particularly, to work to reach a
global accord in Paris later this winter. The Paris accord is perhaps
our last best hope to put the world on a path that avoids severe
climate disruption, even climate catastrophe.
That fast-track bill and the Pacific trade bill ought to enable and
support our trade partners to live up to their climate agreement. Those
bills ought to protect countries that act to address climate change. In
particular, they ought to protect them from the threat of trade
sanctions or from corporate challenges seeking to undermine sovereign
countries' climate laws.
These 21st century agreements on trade ought to match our 21st
century commitments on climate, but they don't. Fast-track is silent on
the United Nations Framework Convention on Climate Change and on
climate change more broadly. Fast-track provides no protection for our
own or any other country's climate commitments. And we have heard
nothing to suggest the Pacific trade bill will be any better.
What we do know about the Pacific trade bill is not encouraging. The
Pacific trade bill, in its agreement under negotiation as we see it
now, includes the horrible investor-state dispute settlement mechanism,
called ISDS, a mechanism that allows big multinational corporations and
their investors to challenge a country's domestic rules and
regulations--outside of that country's judicial process, outside of any
traditional judicial process, outside of appeal, outside of traditional
judicial baseline principles such as precedent.
Increasingly, these ISDS challenges are being turned against
countries' environmental and public health standards. Fossil fuel
companies such as Chevron and ExxonMobil have brought hundreds of
disputes against almost 100 governments when those governments'
policies threaten corporate profits. In fact, more than 85 percent of
the more than $3 billion awarded to corporations and investors in
disputes have come from challenges against natural resource, energy,
and environmental policies.
Last week, on the floor I compared the Big Tobacco playbook--that is
the one that was found by a Federal court to be a civil racketeering
enterprise--to the fossil fuel industry's scheme to undermine climate
action in the United States.
The comparisons are self-evident. Well, the tobacco industry is in on
the trade challenge game as well, challenging countries' antismoking
measures under the guise of protecting free trade.
If a country wants new health or environmental rules, big
multinationals can use this ISDS process to thwart them. They don't
necessarily even have to bring the challenge. Just threatening to seek
extrajudicial judgments in the millions or even billions of dollars
from panels stacked with corporate lawyers can be enough to make
countries stop protecting the health of their citizens. We have seen
the polluters use these tools already. This is not conjecture. It is
what is happening.
Why open U.S. climate regulations to this risk? Why put our
commitment to climate action at the mercy of these sketchy panels? What
will keep the fossil fuel industry from threatening smaller countries
in Paris to discourage them from climate accords? Where are the
safeguards? Why should we accept trade deals that do not keep safe from
that kind of threat a country's legitimate efforts to control carbon
pollution? Why give the polluters this club?
It is not news to Congress that the fossil fuel industry does not
play fair; it plays rough. We see that every day. The fossil fuel
industry has used Citizens United to beat and cajole the Republican
Party in Congress into becoming the political arm of the fossil fuel

[[Page S2827]]

industry. The party that brought us Theodore Roosevelt, the party that
brought us the Environmental Protection Agency, the party of my
predecessor, John Chafee, who is still revered across Rhode Island as
an environmentalist, has now become the political arm of the fossil
fuel industry. It is not its high point in history. It is a party that
lines up behind climate denial.
If the fossil fuel industry is willing to impose its will that way on
the Congress, why would we trust them with this ISDS mechanism to
threaten and bully governments around the rest of the world?
A 21st-century trade deal ought to acknowledge the 21st-century
reality of climate change. We have right now the technology and the
ingenuity to address this problem and to boost our economy into the
future. For the first time in years, we have international momentum to
address this threat. But it does not make sense to act on climate
change in Paris and undermine climate action in our trade deals. We
need to wake up to that little problem, too.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Gardner). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SESSIONS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Nomination of Sally Yates

Mr. SESSIONS. Mr. President, I would like to share some thoughts on
the nomination of Ms. Sally Yates to be Deputy Attorney General. That
is the second in command at the U.S. Department of Justice. It is a
very important position. She has had over the years a good background
in general for us to consider that she would be able to handle that job
in an effective way. She understands the system. She has been at the
Department of Justice for a number of years. I have no concern with her
personal integrity or work ethic or her desire to do well.
However, Congress and the executive branch are on a collision course
here. A lot of our Members choose not to think sufficiently about it or
consider the gravity of it, but I have to say that Congress needs to
defend its institutional powers. We have certain powers we can use to
defend constitutionally the responsibilities we have and to reject
executive overreach--not many, but we have some real powers we can use.
Apparently, it is all right for the President to use all his powers
and more. It is perfectly all right, I suggest, that we in the Senate
use the powers we clearly and unequivocally and indisputably have.
I want to tell you how I see the situation with this nomination. I
asked her directly at her confirmation hearing, as a member of the
Judiciary committee, could she answer yes or no--did she think that the
President's Executive amnesty is legal and constitutional. Basically,
she said yes, she did. She answered that she has been ``serving as the
Acting Deputy Attorney General of the Department of Justice. And the
Department of Justice is currently litigating this matter.'' She
further stated that ``the Department of Justice has filed pleadings
with its position and I stand by those pleadings,'' which I suppose she
should.
Two things about that. Historically, the Attorney General of the
United States understands that their role is different from a lower
official, but indeed they have to advise the President on matters of
constitutional authority and tell the President no when a strong-willed
President wants to do something that is not correct.
They are not a judicial officer; they are part of the executive
branch. They should try to help the President achieve things the
President wants to achieve as a matter of policy. I do not dispute
that. But at some point, if the President is seeking to do clearly
unconstitutional or illegal, they should tell the President so and not
acquiesce, in my opinion. The honorable thing to do, as has been done
in the past, is to resign. But if an Attorney General is firm and clear
and stands in a firm position, then often the President will back down
and avoid a constitutional crisis and keep our government going in the
right way.
The Deputy Attorney General is the Department's second-ranking
official and functions as its chief operating officer. The 25
components and 93 U.S. attorneys--I was a U.S. attorney for 12 years,
15 years at the Department of Justice; I am proud of that service and
proud of the Department of Justice--they report directly to the Deputy,
and 13 additional components report to the Deputy through the Associate
Attorney General. So, on a daily basis, the Deputy Attorney General
decides a broad range of legal, policy, and operational issues.
Ms. Yates, I suggest, is a high ranking official who holds a
position--unlike a U.S. attorney or some section chief--who is involved
in the policymaking of the Department of Justice. In addition to that,
the litigation going on in Texas before Judge Andrew Hanen is under her
direct supervision, and she is monitoring the lawyers who are
advocating a position that is opposed by a majority of the State
attorneys general of the United States. A majority of them have filed a
lawsuit, and they contend that the President's Executive amnesty--an
even more dramatic assertion of Executive power than his original
amnesty in 2012--is contrary to the law and Constitution. She is direct
supervisor over that litigation.
On April 7 of this year, Judge Andrew Hanen issued a blistering
opinion in the litigation that is ongoing that the Justice Department
attorneys had made ``multiple misrepresentations'' to the court ``both
in writing and orally that no action would be taken pursuant to the
2014 DHS Directive until February 18, 2015.''
I would like to read some of the comments from the judge's opinion.
Judges take this seriously; they are not just saying these things for
fun.
Judge Hanen said this:

Whether by ignorance, omission, purposeful misdirection, or
because they were misled by their clients, the attorneys for
the Government misrepresented the facts.

He didn't say that lightly. When U.S. attorneys and other Federal
prosecutors appear in court, they have an absolute duty to tell the
truth. It is a responsibility that every judge knows and every
government attorney knows. When a government attorney goes into court
and they are asked whether they are ready, they reply: The United
States is ready, Your Honor. They have a duty to respond consistently
with the integrity of the United States of America. We all know that.
In this case, the government lawyers asserted that:

No applications for the revised DACA would be accepted
until the 18th of February, and that no action would be taken
on any of those applications until March the 4th.

Regarding this, Judge Hanen said:

This representation was made even as the Government was in
the process of granting over 100,000 three-year renewals
under the revised DACA.

It goes on:

In response to this representation, counsel for the States
agreed to a schedule more favorable to the Government, and
the Court granted the Government's request not only to file a
sur-reply, but also to have additional time to do so. The
States now argue that they would have sought a temporary
restraining order, but for the Government's
misrepresentations. A review of the Chronology of Events,
attached as an appendix to this Order, certainly lends
credence to the States' claims.

That is a pretty serious allegation. Not only did they misrepresent
key facts, but they used that misrepresentation to achieve a favorable
schedule, which often in litigation is important.
The judge goes on to say:

The explanation by Defendants' counsel for their conduct
after the fact is even more troublesome for the Court.
Counsel told the Court during its latest hearing that she was
unaware that these 2014 DACA amendments were at issue until
she read the Court's February 16, 2015 Order of Temporary
Injunction and Memorandum Opinion and Order. Counsel then
claimed that the Government took ``prompt'' remedial action.
This assertion is belied by the facts. Even if one were to
assume that counsel was unaware that the 2014 DACA amendments
in their entirety were at issue until reading this Court's
February Opinion, the factual scenario still does not suggest
candor on the part of the Government.

Government counsel have an absolute duty of candor to the court. That
is a serious charge by the Federal judge.
It goes on:

[[Page S2828]]

The February Opinion was issued late in the evening on
February 16, 2015 (based on the representation that
``nothing'' would happen on DAPA or revised DACA until at
least February 18, 2015). As the February Opinion was
finalized and filed at night, counsel could not have been
expected to review it until the next day; yet, for the next
two weeks, the Government did nothing to inform the Court of
the 108,081 revised DACA approvals. Instead, less than a week
later, on February 23, 2015, the Government filed a Motion to
Stay and a Notice of Appeal. Despite having had almost a week
to disclose the truth--or correct any omission,
misunderstanding, confusion, or misrepresentation--the
Government did not act promptly; instead it again did
nothing. Surely, an advisory to this Court (or even to the
Court of Appeals) could have been included in either document
filed during this time period. Yet, counsel for the
Government said nothing.

So the court goes on:

Mysteriously, what was included in the Government's
February 23, 2015 Motion to Stay was a request that this
Court rule on the Motion ``by the close of business on
Wednesday, February 25. . . . ''--in other words, within two
days. Had the Court complied with this request, it would have
cut off the States' right to file any kind of reply. If this
Court had ruled according to the Government's requested
schedule, it would have ruled without the Court or the States
knowing that the Government had granted 108,081 applications
pursuant to the revised DACA despite its multiple
representations to the contrary.

The attorneys were telling the Court they had not granted any of
these applications and had stopped it while, in fact, over 108,000
applications had been issued.
The court goes on to say:

While this Court is skeptical that the Government's
attorneys could have reasonably believed that the DACA
amendments contained in the 2014 DHS Directive were not at
issue prior to the injunction hearing on January 15, 2015,
this Court finds it even less conceivable that the Government
could have thought so after the January 15, 2015 hearing,
given the interplay between the Court and counsel at that
hearing. Regardless, by their own admission, the Government's
lawyers knew about it at least as of February 17, 2015. Yet,
they stood silent. Even worse, they urged this Court to rule
before disclosing that the Government had already issued
108,081 three-year renewals under the 2014 DACA amendments
despite their statements to the contrary.

The judge goes on to say:

Another week passed after the Motion to Stay was filed and
still the Government stood mute . . . Still, the Government's
lawyers were silent . . . Finally, after waiting two weeks,
and after the States had filed their reply, the Government
lawyers filed their Advisory that same night at 6:57 p.m.
CST. Thus, even under the most charitable interpretation of
these circumstances, and based solely upon what counsel for
the Government told the Court, the Government knew its
representations had created ``confusion,'' but kept quiet
about it for two weeks while simultaneously pressing this
Court to rule on the merits of its motion. At the March 19,
2015 hearing, counsel for the Government repeatedly stated to
the Court that they had acted ``promptly'' to clarify any
``confusion'' they may have caused. But the facts clearly
show these statements to be disingenuous. The Government did
anything but act ``promptly'' to clarify the Government-
created ``confusion.''

The judge goes on to quote the rules of professional conduct:

The ABA Model Rules of Professional Conduct . . . require a
lawyer to act with complete candor in his or her dealings
with the Court. Under these rules of conduct, a lawyer must
be completely truthful and forthright in making
representations to the Court. Fabrications, misstatements,
half-truths, artful omissions, and the failure to correct
misstatements may be acceptable, albeit lamentable, in other
aspects of life; but in the courtroom, when an attorney knows
that both the Court and the other side are relying on
complete frankness, such conduct is unacceptable.

I don't think that is a little matter. I am just saying this nominee
had those lawyers under her supervision at the time this occurred. We
have had a lot of talk over the years from Democrats and Republicans
about demanding higher standards of professionalism among government
prosecutors and lawyers. I think that is a legitimate demand. We have
had too many examples of failures.
Sometimes lawyers--I have seen it--for the government have been
unfairly criticized. I don't think there is any dispute that the
judge's findings in this case represent an accurate statement of the
misrepresentations and disingenuousness of these attorneys.
Has any discipline been undertaken against them? I am not saying Ms.
Yates knew this. I am just saying that if you are the responsible
supervisor, shouldn't you take some action to deal with it, and to my
knowledge, none has been taken, even at some point the Department of
Justice suggested they did nothing wrong.
Basically, the Department of Justice has said the court is incorrect
in its finding, which I don't think can be justified.
On May 7, 2015, the Department of Justice notified the court of an
additional misrepresentation regarding approximately 2,000 individuals
being granted three-year work authorizations subsequent to this opinion
and in violation of the original court order.
OK. So you say, well, maybe she is not responsible for that, but I do
believe the Deputy Attorney General--acting now--is responsible for
taking action against attorneys who breached the proper standards of
ethical conduct. But we are drifting too far, in my opinion, into a
postmodern world, where rules don't seem to make much difference. You
can just redefine the meaning of words and you can just say--once
caught in some wrongdoing--well, we didn't mean it or that is not
correct or the facts are different, when the facts show what the facts
show. It is an unhealthy trend in this country, I think. It is
particularly unacceptable in the Department of Justice. That was a
great department. It has high standards. It is filled with many of the
best lawyers of the highest integrity anywhere in the world, but sloppy
work and disingenuousness cannot be acceptable. I believe the
Department of Justice needs to do more, and the primary responsibility,
it seems to me, is with the Deputy Attorney General.
Well, what about the fundamental problem of Congress's power to deal
with a President who overreaches, a President who makes law rather than
enforces law? We learned in elementary school that Congress makes law
and the President enforces law. The Chief Executive cannot make up law.
He cannot issue decrees and then declare they are the law of the land.
How fundamental is that?
Professor Jonathan Turley at George Washington University Law School
is a constitutional expert and a supporter of President Obama. He
testified before our Judiciary Committee, and other committees, a
number of times over the years, mostly for the Democrats, I think--at
least from the times I remember. This is what Professor Turley has
warned Congress about.
I urge colleagues to understand what we are considering here. He
said:

I believe the President has exceeded his brief. The
president is required to faithfully execute the laws. He's
not required to enforce all laws equally or commit the same
resources through them. But I believe the President has
crossed the constitutional line in some of these areas.

Here he is referring to the original DACA. He said:

This goes to the very heart of what is the Madisonian
system. If a president can unilaterally change the meaning of
laws in substantial ways or refuse to enforce them, it takes
offline that very thing that stabilizes our system. I believe
the members will loathe the day that they allow this to
happen.

He is testifying before the House of Representatives and talking
directly to Members of Congress. He said that you will loathe the day
that you allowed this to happen.
He also said:

This will not be our last president. There will be more
presidents who will claim the same authority.

He further said:

The problem of what the President is doing is that he is
not simply posing a danger to the constitutional system; he
is becoming the very danger the Constitution was designed to
avoid: that is, the concentration of power in a single
branch. This Newtonian orbit that the three branches exist in
is a delicate one, but it is designed to prevent this type of
concentration.

That is what Professor Turley said to the Members of the House of
Representatives. He goes on to say:

We are creating a new system here, something that is not
what was designed. We have this rising fourth branch in a
system that is tripartite. The center of gravity is shifting,
and that makes it unstable. And within that system, you have
the rise of an uber presidency. There could be no greater
danger for individual liberty, and I really think that the
framers would be horrified by that shift because everything
they've dedicated themselves to was creating this orbital
balance, and we've lost it.

We need to listen to this. The President is issuing orders that
nullify law,

[[Page S2829]]

actually creating an entirely new system of immigration that Congress
rejected. He proposed all of this, and Congress flatly refused to pass
it. He then declares he has the power to do this system anyway, and he
is doing it. This judge has finally stopped part of it for the moment.
Professor Turley is talking about deep constitutional questions and
what our duty is here. It is not a question of what you believe about
immigration or how you should believe the laws are to be written or
enforced. We can debate that. But there should be unanimous agreement
on both sides of the aisle that the President enforce the laws we
have--the laws duly passed by Congress--and not create some new law and
enforce them.
Mr. Turley goes on to say:

I believe that [Congress] is facing a critical crossroads
in terms of its continued relevance in this process. What
this body cannot become is a debating society where it can
issue rules and laws that are either complied with or not
complied with by the president. . . . [A] president cannot
ignore an express statement on policy grounds. . . . Is this
[Congress] truly the body that existed when it was formed?
Does it have the same gravitational pull and authority that
was given to it by the framers?

That is what Mr. Turley says. Then he looks directly at the Members
of Congress and says:

You're the keepers of this authority. You took an oath to
uphold it. And the framers assumed that you would have the
institutional wherewithal, and, frankly, ambition to defend
the turf that is the legislative branch.

I think that is a legitimate charge to the Members of Congress--House
and Senate.
Professor Turley goes on to say:

The current passivity of Congress represents a crisis for
members, crisis of faith for members willing to see a
president assume legislative powers in exchange for insular
policy gains. The short term insular victories achieved by
this president will come at a prohibitive cost if the balance
is not corrected. Constitutional authority is easy to lose in
the transient shift to politics. It's far more difficult to
regain. If a passion for the Constitution does not motivate
members of Congress, perhaps a sense of self-preservation
will be enough to unify members. President Obama will not be
our last president. However, these acquired powers will be
passed on to his successors. When that occurs, members may
loathe the day that they remain silent as the power of
government shifted so radically to the chief executive. The
powerful personality that engendered this loyalty will be
gone, but the powers will remain. We are now at the
Constitutional tipping point of our system. If balance is
to be reestablished, it must begin before this president
leaves office, and that will likely require every possible
means to reassert legislative authority.

What is our authority? How do we reassert power? I believe it is
perfectly constitutionally appropriate for us to tell the President of
the United States: We are not going to confirm your nominee for Deputy
Attorney General of the United States, who is directly supervising the
lawsuits, the litigation that is going on that undermines our power and
undermines the constitutional authority of the people's branch.
We are not going to confirm them and allow them to continue to go to
court every day and take a position directly contrary to the authority
that has been given by the Constitution to the Congress. That is pretty
simple. So we have that power. We can confirm or not confirm any
nominee to any position. We absolutely should not abuse that power. We
shouldn't attack people personally and attack their ethics just because
we disagree with their policies.
I think Ms. Yates, as I said, is a responsible person, but she is the
point person, the supervisor of a litigation that has gone awry in a
number of ways in Texas and fundamentally is seeking to advance an
unconstitutional power by the Chief Executive. I don't believe it is a
little matter. I think it is a big matter. Therefore, I will not vote
for her confirmation on that basis.
Some of our Members haven't thought this through yet, but sooner or
later we are going to have to confront the stark question of how long
can we remain effectively silent in the face of Presidential overreach.
Professor Turley, in January of this year testified before the Senate
Judiciary Committee during the confirmation hearing for the Attorney
General nominee, and added these words: ``If there is an alternative in
unilateral executive action, the legislative process becomes purely
optional and discretionary.''
In other words, if the Chief Executive can execute an alternative
power to pass laws and execute policies he wants if they are contrary
to Congress's will, then the legislative process becomes purely
optional and discretionary. It has to be mandatory. It can't be that
our power is optional.
He goes on to say:

The real meaning of a president claiming discretion to
negate or change Federal law is the discretion to use or
ignore the legislative process. No actor in a Madisonian
system is given such discretion. All three branches are meant
to be locked in a type of constitutional synchronous orbit--
held stable by their countervailing gravitational pull. If
one of those bodies shifts, the stability of the system is
lost.

So the President does not have the power to ignore the legislative
process, and we are going to regret this day if we remain silent on
this issue.
I appreciate the opportunity to share this with my colleagues. I
don't know if anybody is listening at this point. Certainly the
American people were horrified by the Executive amnesty carried out by
the President last year. He announced it before the election but held
off until afterward. Still, there is no doubt in my mind that many of
the people who went to the polls in November were voting for a
rejection of this kind of Executive overreach. It was a message of this
past election.
We took our seats in January, a new Congress is here, and Professor
Turley has said we need to act and we are not acting. Professor Turley
has said we need to stand up to the Chief Executive, this Chief
Executive while he is in office now, and if we don't, when we go to
another election cycle, the powers he has aggrandized to himself will
be claimed by the next President.
Truly so. That is a grim warning he has given us. I am ready and I
think it is time for us to stand up and be clear about this.
So, regretfully, I feel compelled to carry out one of the powers
Congress has clearly been given--the power to confirm or reject
nominations for higher office. I believe we should reject the
nomination for the Department of Justice Deputy Attorney General who is
advocating and pursuing a lawsuit that goes against the constitutional
powers of the Congress, and therefore I will be voting no on the
nomination.
I thank the Chair, and I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Sasse). The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. MENENDEZ. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amtrak Train Derailment

Mr. MENENDEZ. Mr. President, I rise to bring attention to the tragic
Amtrak derailment that took at least 7 lives and caused over 140
injuries, including an Associated Press member from New Jersey, Jim
Gaines of Plainsboro, NJ. Our thoughts and prayers are with the
families of those who lost their lives. To those of us from New Jersey
and those who live along the Northeast corridor, they are our
neighbors, our friends, our relatives. They could be us. It hits
especially close to home. I know, because I take Amtrak virtually every
week back to New Jersey.
There was a period of time last night when I did not know the
whereabouts of my son Rob, who was scheduled to be on Amtrak back to
New York. But I later found out that he was on the next train
immediately behind the one that derailed, and thankfully, he was safe.
I am grateful for that. But others were not so lucky.
But luck should not be America's transportation policy. It is
imperative that the cause of the derailment be fully investigated so
that we can prevent tragedies such as these in the future. I have
already been on the phone with Secretary of Transportation Anthony Fox
and continue to monitor closely the situation.
I want to recognize the extraordinary work of our first responders.
Once again, firefighters, police officers, and emergency responders
showed us what bravery is all about. They ran to the crash site to save
lives while others were running away. For that, we should all be
grateful.
Now, we do not know what caused this accident. But we do know that we

[[Page S2830]]

need to invest in 21st-century systems and equipment and stop relying
on patchwork upgrades to old, rusted 19th century rail lines.
I travel Amtrak, as I said, virtually every week. I travel the Acela,
which is supposed to be our high-speed rail. It is like shake, rattle,
and roll. As a member of the Senate Foreign Relations Committee, I have
traveled in other countries in the world, such as Japan. They have a
bullet train in which you virtually cannot feel anything while you are
on the train, going at speeds far in excess of what we call high-speed
rail.
Now, there are still many questions to which we do not know the
answers. Was there human failure? Was there a mechanical failure or
were there infrastructure issues or was it a combination of issues?
What we do know is that our rail passengers deserve safe and modern
infrastructure. New Jersey, for example, is at the heart of the
Northeast corridor. It has long held a competitive advantage with some
of the Nation's most modern highways, an extensive transit network, and
some of the most significant freight corridors in the world at the
confluence of some of the largest and busiest rail lines, interstates,
and ports.
In a densely populated State such as New Jersey, the ability to move
people and goods safely and efficiently is critical to our economy and
critical to our quality of life. But, unfortunately, in recent years,
New Jersey and the Nation as a whole have fallen behind. We have 20
years maximum--maximum--before the Hudson River tunnels are taken out
of service. Twenty years may sound maybe to some of our young pages
like a long time, but it is a flash of the eye. Think about what
happens if we take either or both of those tunnels out of service
without an alternative, tunnels that are absolutely essential to moving
people and goods in the region that contributes $3.5 trillion to our
Nation's economy--20 percent of the entire Nation's gross domestic
product.
Nationwide, 65 percent of major roads in America are in poor
condition. One in four bridges in our Nation needs significant repair.
There is an $808 billion backlog in highway and bridge investment
needs. On the transit side, there is an $86 billion backlog of transit
maintenance needs--maintenance needs, not expanding, just maintaining
that which we have.
It will take almost $19 billion a year through the year 2030 to bring
our transit assets into good repair. These are just a handful of the
statistics underscoring our Nation's failure to invest in our
transportation network. But we have to get beyond looking at the
numbers on a page. We have to talk about what Congress's failure to act
means to the people we represent, to every community--every community,
every commuter, every family, everyone who travels every day, and every
construction worker looking for a job.
Failure to act means construction workers now face a 10-percent
unemployment rate, and at a time when our infrastructure is crumbling
around us, they will not get the work they need. It means a business
cannot compete in a globalized economy because their goods cannot get
to market in time. It means a working mother is stuck in traffic and
cannot get home in time for dinner with her kids. In the very worst
cases--cases such as the one we saw yesterday on Amtrak--it very well
means that a loved one is lost in a senseless tragedy.
In Congress, we too often treat our infrastructure as if it is an
academic exercise, as if it is numbers on a page that we adjust to
score political points or balance a budget or make an argument about
what types of transportation are worthy of our support. But that is not
the real world. In the real world, the choices we make have an impact
on people's lives, on their jobs, on their income. They have an impact
on our Nation's ability to compete. They have an impact on the safety
of Americans and America's ability to lead globally the economy in the
world.
We in Congress are failing to recognize the real-world impacts of the
choices we make about our transportation infrastructure. We have a
passenger rail bill that expired in 2013. We have a highway trust fund
on the brink of insolvency, with no plans--no plans--to fix it
sustainably. We have a crowded and outdated aviation system that we
refuse to adequately fund. We have failed to upgrade with presently
available technologies that can reduce the number of failures. We have
appropriations bills aiming to cut already-low funding levels of
Amtrak, in particular, to meet an arbitrary budget cap for the sake of
political points.
I cannot understand that. I cannot understand that. We are living off
the greatest generation's investment in infrastructure in this country.
We have done nothing to honor that investment, to sustain it or to
build upon it. Yet nothing we are doing is aimed at fixing the problem.
Our inaction comes with an extraordinarily high cost. So I can tell
you, as the senior Democrat on the subcommittee on mass transit, I
categorically reject the idea that we cannot afford to fix our
transportation system.
The truth is, we cannot afford not to fix it. The Amtrak disaster
last night is a tragic reminder that we have to act. We are reminded of
the tragic consequences of inaction and the impact of inaction on the
lives of workers and families, on their lives and their ability to get
to work and do their jobs with confidence that they will be safe.
So, as a member of the Finance Committee, and the ranking member of
the transit subcommittee, I have been advocating that we act as soon as
possible. We cannot keep pretending the problem is going to resolve
itself if we just wait long enough. We simply cannot afford to wait. I
hope that everyone in this Chamber--Democrats, Republicans, and
Independents alike--will come together, will work together, and make
real progress in building the future that we can be proud of.
We can start by putting politics aside to think about the safety of
the American people, to think about the future, to think about
America's competitiveness, and to find common ground to do whatever it
takes to invest in America's railroads, ports, highways, and bridges,
and to invest in our future.
So let's not wait until there is another tragic headline or to see
the consequences of what flows, as people along the entire Northeast
corridor are trying to figure out alternatives in the midst of a system
that is now shut down for intercity travel--all the transit lines of
States and regions within the Northeast corridor that depend upon using
Amtrak lines to get to different destinations for their residents, to
get people to one of the great hospitals along the Northeast corridor,
to get people to their Nation's Capital to advocate with their
government, to get people and the sales forces of companies to work, to
get home.
Let's not wait until we have another tragedy to think about the
consequences of our transportation system, what it means to the Nation,
or until the next time when lives are lost. I think we can do much
better. I have faith that hopefully this will be a crystalizing moment
for us on this critical issue.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Perdue). The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. LEAHY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

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