Mrs. FEINSTEIN. I come to the floor as a member of the Senate Judiciary Committee now for 15 years and as one who takes no particular pleasure in what I am about to say. I urge a ``yes” vote on cloture. I want to say why. 
   
The Department of Justice is one of the country's most important departments. It has a budget of approximately $24 billion and over 100,000 employees. It is charged with combating terrorism, fighting violent crime, stopping drug trafficking, upholding civil rights, and enforcing civil liberties. It houses key agencies, including the FBI, DEA, the Bureau of Prisons, the Marshals Service, and U.S. Attorneys’ Offices.

As a leader of the Department, the Attorney General is the chief law enforcement officer for the people of this Nation. He is the chief lawyer of the United States. He runs a big department. He must be a strong manager who can direct the day-to-day operations and an independent leader with an unyielding commitment to the law, who is willing to stand up against, yes, even the President, if necessary. He must lead by example, upholding the highest ethical standards.

I think President Lincoln's Attorney General put the challenge on the map when he said this:

[t]he office I hold is not properly political, but strictly legal, and it is my duty above all other ministers of state to uphold the law and to resist all encroachments from whatever quarter.

That is the job of the U.S. Attorney General. The subject before us today is the fact that, for many of us, this Attorney General has not lived up to this standard, and he has lost our confidence. Unfortunately, the Attorney General has failed to meet the challenges during his tenure.

The Department of Justice has become highly politicized in its hiring and firing--I hope to lay that out--and I believe in many of the legal opinions it issues as well. In many respects, it is today an extension of the White House, rather than the scrupulous, independent enforcer of Federal law as suggested by President Lincoln's Attorney General.

Through the investigation into the hiring and firing of at least 9 U.S. attorneys, we have heard Attorney General Gonzales give vague and unconvincing responses in critical areas about his Department's performance.

The Attorney General testified that he does not know who selected the various U.S. attorneys to be fired; therefore, he does not know why they were fired. Can you believe that? He testified that the firings were based on a ``process of consulting with senior leadership in the Department.” However, every single one of the Department of Justice's senior officials who have testified has stated under oath that they did not place a U.S. attorney on the termination list, with one exception--Kevin Ryan of California. This includes Kyle Sampson, the Attorney General's Chief of Staff; James Comey, former Deputy Attorney General; Paul McNulty, Deputy Attorney General; Mike Elston, Paul McNulty's Chief of Staff; Monica Goodling, White House Liaison; Bill Mercer, Associate Attorney General; Mike Battle, Director of the Executive Office of the U.S. Attorneys; and David Margolis, Associate Deputy Attorney General. They have all said they did not add names to the list of those to be fired. To this day, we have been unable to find out who put in place the unprecedented targeted program to fire several U.S. attorneys midterm, at one time, and who made the decision to place these attorneys on that firing list.

We also learned that in an internal order, entitled “Delegation of Certain Personnel Decisions to the Chief of Staff,” that was issued March 1, 2006--the Attorney General delegated his role in hiring and firing certain senior officials in the Department of Justice to his Chief of Staff, Kyle Sampson, and a young, 33-year-old former researcher for the Republican National Committee, Monica Goodling. I must say that I find this a major abdication of the duty of a leader. In fact, according to internal memos, the Attorney General was going to completely abdicate his role, until the Office of Legal Counsel stepped in, saying he must at least be consulted in the process.

In a memo dated February 24, 2006, Paul Corts, Assistant Attorney General for Administration, wrote this:

The Office of Legal Counsel advises that permitting the Attorney General's delegates to approve appointments (or removals) of constitutionally “inferior officers”..... would be inconsistent with the [Excepting Clause in the Constitution]. The Office of Legal Counsel recommends that the delegates exercising the authority of this delegation submit appointments or removals to the Attorney General.

Taken together, the most favorable interpretation of these various actions is that the Attorney General has clearly sought to avoid these key responsibilities.

Unfortunately, information has come to light that demonstrates that the problems are not limited to poor management. Rather, the Department's reputation, independence, and credibility have been put in serious question.

Mr. Gonzales has stated that he believes the Attorney General wears “two hats”--one as a member of the President's staff and another as the Nation's top law enforcement officer. How does this compare with what I just read from Abraham Lincoln's Attorney General? Answer: It does not.

It is this perspective which I believe has led the Attorney General to treat the Department of Justice as a political arm of the White House rather than as the independent law enforcement agency it should be. For example, the Committee's investigation has shown that seven of the nine U.S. attorneys who were fired were not fired for so-called “performance reasons” at all, as stated. In fact, when reviewing the six evaluation and review staff reports, which are called the EARS reports, of the fired U.S. attorneys, all were given strong, positive performance evaluations. Here are some examples:

Bud Cummins: “United States Attorney Cummins was very competent and highly regarded by the Federal judiciary, law enforcement, and the civil client agencies.”

Despite this review, Mr. Cummins was fired in June of 2006.

Carol Lam: “U.S. Attorney Carol Lam was an effective manager and a respected leader in the District ..... The United States Attorney committed significant prosecutorial resources to the felony immigration and border crime cases.”

Despite this review, Ms. Lam was fired on December 7, 2006, ostensibly for the very reason that the EARS report found she had done a good job.

David Iglesias: “The U.S. Attorney had well-conceived strategic plans that complied with Department priorities and reflected the needs of the District overall. The U.S. Attorney effectively managed complaints, detention decisions, and pretrial practices.”

Despite this review, Mr. Iglesias was fired on December 7, 2006.

Dan Bogden: “U.S. Attorney Bogden was actively involved in the day-to-day management of the U.S. Attorney's office, had established an excellent management team, and had established appropriate priority programs that support Department initiatives.”

Despite this review, Mr. Bogden was fired on December 7, 2006.

Paul Charlton: “U.S. Attorney Charlton made his goals and expectations clear to his staff. .....The U.S. Attorney's office prosecuted more immigration violations than any other district.”

Despite this review, Mr. Charlton was fired December 7, 2006.

John McKay: “U.S. Attorney McKay is an effective, well-regarded, and capable leader of the [U.S. Attorney's office] and the District's law enforcement community.”

Despite this review, Mr. McKay was fired on December 7, 2006.

The Department did not turn over the EARS reports for the two U.S. attorneys who were said to have performance concerns and who were not identified until late in the process--Margaret Chiara and Kevin Ryan.

Since the initial explanation for the firing—performance—
was clearly debunked by these reports, it now appears that these 6 U.S. attorneys were fired because they upset the political arm of the White House.

For example, David Iglesias, by all accounts a rising star, was only placed on the list to be fired after the President and Karl Rove passed complaints along to the Attorney General.

Specifically, Kyle Sampson, former Chief of Staff to the Attorney General, testified on March 29, 2007, that:

I do remember learning, I believe, from the Attorney General that he had received a complaint from Karl Rove about U.S. Attorneys in three jurisdictions, including New Mexico, and the substance of the complaint was that those U.S. Attorneys weren't pursuing voter fraud cases aggressively enough.

Mr. Sampson went on to testify that he also remembered that:

Just a week before I left the Department in March, I remember the Attorney General telling me that he had had a meeting with the President in October sometime. ..... I remember the Attorney General saying, “You know, I remember the President in that meeting we had in October telling me that [there were] concerns about Iglesias.”

In addition, the Committee's investigation has shown that many of the U.S. attorneys who were fired, or put on a list to be fired, were handling contentious election-related cases, including:

Todd Graves, former U.S. attorney in Missouri, who recently revealed that he, too, was forced to resign after he had refused to support a case against the Democratic secretary of state in Missouri, alleging that Missouri was violating Federal law for failing to purge voter rolls.
 
John McKay, former U.S. attorney in Washington, fired, it appears, because he refused to bring a case during the hotly contested gubernatorial race against essentially the Democratic party;

David Iglesias, former U.S. attorney in New Mexico, who, it appears, was fired because he refused to bring a case alleging voter fraud prior to the election;

Tom Hefflefinger, former U.S. attorney in Minnesota, who was put on a list to be fired when he was pushing for an investigation into voter discrimination against Native Americans;

Steve Buskupic, U.S. attorney in Wisconsin, who was put on a list to be fired, and his district was the focus of a document sent over from the White House for investigation that provided information on Milwaukee voting trends.
 
These are just examples of U.S. attorneys who were fired or considered to be fired because of their involvement in election fraud cases. Other U.S. attorneys who were fired were involved with sensitive public corruption cases.

The congressional investigation has also uncovered that political considerations were being taken into account with regard to hiring and firing decisions for career employees at the Department and the prestigious Honors Program. Now, that is a no-no.

Monica Goodling, a young, inexperienced lawyer, 33 years old, was named White House Liaison at the Department of Justice, and in that role she was given the authority to hire and fire personnel for many critical positions at the Department.

On May 23, 2007, Ms. Goodling testified that “I may have gone too far in asking political questions of applicants for career positions, and I may have taken inappropriate political considerations into account on some occasions.”

This is a 33-year-old making these decisions. Where was the Attorney General?

The Congress has also discovered that political appointees directed changes to be made to the performance evaluations of career staff and overrode career attorneys' recommendations regarding which cases to pursue or not pursue.

For example, in testimony before the House, Joe Rich, who worked at DOJ's Civil Rights Division for 37 years, testified that he was “ordered to change the standard performance evaluations of attorneys under my supervision to include critical comments of those who had made recommendations that were counter to the political will of the front office and to improve evaluations of those who were politically favored.”

What does this do to the credibility of the Department of Justice of the United States?

In the Senate Judiciary Committee's hearing last week, Brad Schlozman testified that “on a number of occasions, I believe I did order [Joe Rich to change performance evaluations.]”

There you have it, the politicization of the Department of Justice.

Sharon Eubanks, lead attorney for the Department of Justice on a tobacco case, has stated that in June 2005, she was pressured to ask for lesser penalties against a tobacco company. She said:

At first, the administration officials attempted to get the litigation team and me and my staff to agree to lower the amount, but there was no basis for doing that, and we refused. And finally, after a number of very heated discussions, I said, “You write it and I'll say it.”

What a terrible comment about one of the biggest cases ever made in the history of the United States.

Each of these facts on its own is disconcerting, but taken together, they show a department being run based on politics and not on the law.

I also believe the Attorney General has compromised important legal principles by taking positions and espousing opinions that are outside the mainstream of legal thought.

For example, the Attorney General testified on January 18, 2007, that habeas corpus, the right to challenge one's imprisonment, is not protected by the Constitution. Here is what the Attorney General said:
 
There is no express grant of habeas in the Constitution. There is a prohibition against taking it away ..... I meant by that comment, the Constitution doesn't say “Every individual in the United States or every citizen is hereby granted or assured the right to habeas.”

He has also pushed to narrow the definition of torture and changed to whom the Geneva Convention applies. In the January 2002 memo he wrote:

In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.

And when it comes to Guantanamo, Attorney General Gonzales has expressed strong objections to closing the detention facility and moving detainees to the United States.

The New York Times reported of March 22 of this year that Mr. Gates argued to close Guantanamo. But according to administration officials--this is what the newspaper reported:
 
Mr. Gates's arguments were rejected after Attorney General Gonzales and some other Government lawyers expressed strong objections to moving detainees to the United States, a stance that was backed by the Office of the Vice President.

And despite the fact that the U.S. Code states “the Foreign Intelligence Surveillance Act shall be the exclusive means” by which electronic surveillance may be conducted, the Attorney General has argued that the language used in the Authorization for Use of Military Force implicitly authorized the President to exercise powers, “including the collection of enemy intelligence.”

In his prepared testimony from January 2006, he stated:

The Supreme Court confirmed that the expansive language of the resolution—“all necessary and appropriate force”--ensures that the congressional authorization extends to traditional incidents of waging war ..... [and] the use of communications intelligence to prevent enemy attacks is a fundamental and well-accepted incident of military force.

He is thereby saying that the collection of electronic surveillance is a creature of this and, therefore, allowable. I don't agree with that assessment.

I believe each of these legal opinions has had dramatic negative consequences, including negatively impacting America's relationship with most countries abroad.

Finally, and perhaps most disturbing, the Senate has heard testimony from former Deputy Attorney General James Comey that calls into question the Attorney General's character and integrity.

Mr. Comey testified about the conversation in the intensive care unit of George Washington University Hospital where he witnessed then-White House Counsel Gonzales “trying to take advantage of a very sick man” to reverse a judgment that the Terrorist Surveillance Program was illegal.

Mr. Comey's testimony raised questions about actions that are contrary to the ethical standards lawyers are required to uphold.

Mr. Comey's testimony stands in sharp contrast to the statements made by Mr. Gonzales to the Senate about this incident.

In response to Senators' questions on February 6, 2006, the Attorney General left the impression that any reports of disagreement within the administration about the surveillance program were either inaccurate or in reference to some other program or issue.

He said:

There has not been any serious disagreement [about the program] ..... The point I want to make is that, to my knowledge, none of the reservations dealt with the program that we are talking about today.

That was under oath, Mr. President, before us. He didn't tell us about this. He didn't tell us that he went, as White House Counsel, to a critically ill man's intensive care unit bed and tried to reverse a decision that the Acting Attorney General was making. It wasn't until Mr. Comey came forward and told us about it did we know.

What do I conclude? Each of these issues is serious on its own and each would raise serious questions about the qualifications and service of this Attorney General.

The Department of Justice is charged with enforcing the law and protecting all Americans' rights and security. The Attorney General must enforce the law without fear or favor to its political ramifications. He must act independently and pursue justice wherever it may lead, and without compromise. He must uphold the highest ethical standards.

Let me quote again from President Lincoln's Attorney General:

The office I hold is not properly political, but strictly legal; and it is my duty, above all other ministers of State, to uphold the law and to resist all encroachments from whatever quarter.

This is what the Attorney General should be. That is why I am going to support the motion to close off debate and support the resolution.

I thank the Chair. I yield the floor.