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Executive Session

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Location: Washington, DC


EXECUTIVE SESSION

NOMINATION OF MICHAEL CHERTOFF TO BE SECRETARY OF HOMELAND SECURITY

BREAK IN TRANSCRIPT

Mrs. CLINTON. Mr. President, when the time comes I intend to vote in favor of Judge Chertoff's nomination to be Secretary of Homeland Security. There is no position in government of greater importance to the security of our country and of my home State of New York. And so I am glad that the Senate has agreed to devote some time to a discussion of the important issues that the next Secretary of Homeland Security will face.

Let me say at the outset that I have some serious concerns about this nomination. These concerns have nothing to do with Judge Chertoff's personal abilities: his professional and intellectual qualifications are beyond question, as is his commitment to public service. Rather, my concerns are based on the misguided and constitutionally infirm policies that have been drafted by the Department of Justice and implemented by the Administration in its prosecution of the war on terror and in the conflicts in Afghanistan and Iraq. Judge Chertoff was a senior DOJ official at the time that these policies were created. Because he is being nominated to a position for which respect for Constitutional and treaty obligations is especially important, his role in the formation of these policies is therefore worthy of careful scrutiny.

My primary concern relates to those policies that have undercut and placed our men and women in uniform in greater danger and diminished our standing in the international community. I feel a particular personal obligation as a member of the Armed Services Committee to do my utmost to ensure that our government does not do anything that unnecessarily puts our troops in harm's way, that diminishes our standing among our allies, or that blurs the values that distinguish us from our depraved and nihilistic enemies.

The August 1, 2002 memo from the Department of Justice's Office of Legal Counsel, with its absurdly narrow definition of torture, is the most shocking and well-known example of the administration's attempt to radically weaken this country's commitment to treat all prisoners and detainees humanely and in accordance with international agreements. Another oft-cited example is Attorney General Gonzales' January 2002 advice to President Bush that the ``war on terrorism'' offers a ``new paradigm [that] renders obsolete'' the Geneva Convention's protections.

I am satisfied by Judge Chertoff's testimony that, as Assistant Attorney General for the Criminal Division, he did not provide legal advice that strayed below the standard that is expected from senior members of the Justice Department. He testified that executive branch officials sought his views on the practical application of laws prohibiting torture and on specific techniques. And he testified that torture is illegal and wrong and that he does not believe that the definition of torture in the August 1, 2002 OLC memo is broad enough. He testified that he told executive branch officials to ``be sure that you have good faith and you've operated diligently to make sure what you are considering doing is well within the law.'' Regarding specific techniques, Judge Chertoff testified that, ``I was not prepared to say to people, to approve things in advance, or to give people speculative opinions that they might later take as some kind of a license to do something.''

These responses suggest that Judge Chertoff appreciates the importance of upholding America's long tradition of treating prisoners humanely, and of respecting international agreements that protect our men and women in uniform as well as our standing in the international community. While I would have preferred that Judge Chertoff had argued his point to the administration more forcefully, I am satisfied that he did not actively promote these wrongheaded, immoral, and counterproductive policies.

Another important concern arises from the Justice Department's treatment of more than 750 aliens detained immediately following the attacks of September 11. The department's own inspector general released a report in 2003 that acknowledged the ``difficult circumstances'' in which the department found itself, but concluded there were ``significant problems in the way that the September 11 detainees were treated.'' Among those problems were significant delays in the FBI's clearance process, hindrances in access to legal counsel, and verbal and physical abuse of detainees. The report specifically finds that the Justice Department, including Judge Chertoff, was aware of the FBI's clearance problems at the time. In fact, Judge Chertoff testified that he inquired with the FBI about the clearance delays, but the FBI's resources were ``stretched.'' The inspector general found that the Justice Department should have done more once it learned of the detainee-related problems.

When asked about this report at his confirmation hearing, Judge Chertoff acknowledged that there were ``imperfections'' in the executive branch's response. He testified that he was unaware at the time of the hindrances in detainees' access to counsel, that he was unaware of the verbal and physical abuse, and that such mistreatment is inappropriate and should not have happened. He also stated the importance of learning from experience.

I am disappointed that Judge Chertoff did not express greater regret for the department's role in the mistreatment of detainees, and that he did not testify in detail as to the status of the implementation of the inspector general's recommended 21 reforms. Nonetheless, his responses to this line of questioning are not, in my view, sufficient to oppose his nomination. I hope that Judge Chertoff will bring to bear the lessons we have learned from this experience and work to ensure appropriate reforms are successfully carried out.

After careful consideration, I am satisfied by Judge Chertoff's answers to the Senate Homeland Security and Governmental Affairs Committee regarding his conduct at the Justice Department. Despite the egregious missteps the department made during his tenure, I do not believe that his performance there disqualifies him from serving as the next Secretary of the Department of Homeland Security. And in view of his testimony and of his exceptional record during his short time on the Federal bench, I believe that Judge Chertoff understands that the next Secretary of Homeland Security must be both unflagging in his efforts to protect us from terrorist attack and steadfast in his respect for our Constitutional order.

I also believe that Judge Chertoff has a good understanding of the issues and challenges facing the Department of Homeland Security. Perhaps the biggest challenge awaiting him is the taming of the enormous bureaucratic tangle that is the current department. If confirmed, Judge Chertoff will become the head of a department that was created via the integration of 22 separate agencies and 180,000 employees. These agencies and employees engage in a wide range of activities related to securing the homeland, and they need a steady and firm hand on the tiller. They also need a creative leader who can cut through bureaucratic entanglement and get things done. As Secretary, Judge Chertoff's central task will be setting priorities and getting a vast bureaucracy to work efficiently and in a unified fashion.

I am hopeful Judge Chertoff's well-documented intellectual abilities and his long experience as a public servant will serve him well as he moves from the role of Federal judge to the head of such a large and demanding Department. He pledged at his confirmation hearing to work ``tirelessly'' to safeguard the nation. I hope he follows through on that pledge in a variety of areas of critical importance. He will need to devote substantial energy and political capital if he is to help this still nascent Department develop to its full potential and render all Americans as safe and as secure in their liberties as possible.

I am encouraged that Judge Chertoff and I agree on a number of specific challenges facing the Department of Homeland Security. One of these issues--Federal funding formulas for state and local preparedness--is essential to protecting the homeland. I have repeatedly called upon the administration and my colleagues to implement threat-based homeland security funding, so that homeland security resources go to the states and areas where they are needed most. I have introduced legislation in this regard and even developed a specific homeland security formula for administration officials to consider.

The latest iteration of that proposal is contained in my Domestic Defense Fund Act of 2005, which I introduced on the first legislative day of this Congress. Modeled on the Community Development Block Grant program, the Domestic Defense Fund of 2005 provides $7 billion in annual funding to local communities, States, and first responders. The act requires that all of that funding be allocated using threat, risk, and vulnerability-based criteria that homeland security experts--including the Homeland Security Independent Task Force of the Council on Foreign Relations, chaired by former Senators Gary Hart and Warren Rudman, and the National Commission on Terrorist Attacks Upon the United States--have long recommended.

I was heartened to hear Judge Chertoff testify at his confirmation hearing, that ``I think we have to have a formula for funding and a formula for lending assistance to State and local governments across the board that takes account of the reality of vulnerabilities and risks and making sure that we're making a fair allocation.'' Judge Chertoff also stated this view when I met with him. His unequivocal support for threat- and vulnerability-based funding is important for New York, and for the nation.

Another issue on which Judge Chertoff and I agree is the need for greater sharing of terrorist-related information between and among Federal, State, and local government agencies. In the immediate aftermath of the 9/11 terrorist attacks, I worked with a number of my colleagues in the Senate on a bi-partisan basis in focusing on this need. As I noted in my remarks on the passage of the Intelligence Reform and Terrorism Prevention Act of 2004, the sharing of critical intelligence information is vitally important if we are to win the War against terrorism. We need to ensure that our front line solders in the war against terrorism here at home--our local communities and our first responders--are as informed as possible about any possible threat so that they can do the best job possible to protect all Americans. It is vital for New York City and other local communities across New York State and the Nation to receive accurate and timely information from the department when a potential threat emerges. It is equally important that local communities on the front lines serve as valuable sources of information for the Federal Government.

I was pleased to learn that Judge Chertoff testified at his confirmation hearing that his personal experiences as an Assistant United States Attorney, a United States Attorney and as head of the Criminal Division on September 11, give him a thorough appreciation and respect for State and local perspectives. In his testimony, he described ``negotiating cooperation with our state and local government officials'' as one of ``the central elements of the war against terrorism. .....'' He repeatedly referred to the need to work in partnership with State and local government.

I could not agree more. The Federal Government cannot, and should not, go it alone when it comes to securing the homeland. States and local communities must be full partners. Much more needs to be done, but Judge Chertoff's testimony demonstrates that he understands the importance of this area as a key to homeland security.

I also find it encouraging that Judge Chertoff testified that he is ``acutely aware'' of the importance of allocating resources to secure our ports. Needless to say, having a secretary of homeland security who understands the importance of the Port of New York and New Jersey is likely to be a good thing for New Yorkers, and for the entire country.

There has been little evidence to date that administration is interested in using a threat-based formula for allocating resources. Indeed, in Fiscal Year 2004, when the Administration had the opportunity to employ such a formula in allocating funds under the State Homeland Security Grant Program, SHGP, and the Law Enforcement Terrorism Prevention, LETP, grant program, it affirmatively chose not to do so, despite pleas from me and many members of Congress on both sides of the aisle. Again in Fiscal Year 2005, there was no significant effort on the part of the administration to use a threat-based formula.

I wrote President Bush imploring him to work with the House and Senate leadership on the issue of homeland security funding, but language was inserted in the Fiscal Year 2005 Homeland Security Appropriations Act to require that SHGP and LETP funds be allocated in that fiscal year as the administration chose to allocate funds in Fiscal Year 2004, which, unfortunately, was on the basis of population alone. Every homeland security expert I know has said that this makes no sense. If the terrorists are looking at things such as the presence and vulnerability of critical infrastructures as well as population and population densities, so should we.

This year, the administration is again talking a good game on homeland security grant formulas. The Fiscal Year 2006 budget request calls for more than $1 billion in grants to States for the purpose of enhancing capabilities to prevent, deter, respond to and recover from acts of terrorism, to be allocated by the Secretary of Homeland Security ``based on risks, threats, vulnerabilities, and unmet essential capabilities,'' with a 0.25 percent State minimum. In addition, more than $1 billion would go for grants to urban areas, for the same purpose, and on the same basis--minus, of course, a State minimum.

This is a step in the right direction, but we need to allocate much more funding for this purpose. Whether through direct funding--which I continue to believe is the best way to disburse homeland security funding to many communities--or funding that is sent to the states and passed through to local communities, the Federal Government should be disbursing the homeland security state and local funds to communities according to a threat- and vulnerability-based formula.

In addition, my Domestic Defense Fund Act makes it explicit that the funding provided for in my proposed legislation will not supplant or be in lieu of funding for traditional first responders programs, such as the Community Oriented Policing Services, COPS, program and the Assistance to Fire Fighters, FIRE, Act program. These Federal programs have proven successful in helping first responders perform traditional functions, such as fighting crime and responding to fires.

Unfortunately, the Fiscal Year 2006 budget request seeks to cut or eliminate a number of these essential first responder programs. Under the President's proposed budget, funding for the COPS program is reduced from $379 million to $118 million nationally, which comes on top of previous years' cuts for the COPS program, which once received more than $1.5 billion in funding. And absolutely no funding is proposed for the COPS Universal Hiring Program, the COPS MORE program, COPS in Schools program, or the COPS Interoperable Communications Technology Program.

The Fiscal Year 2006 budget request also proposes no funding for the Edward Byrne Memorial Justice Assistance Grant program, named after a New York City police officer killed in the line of duty, and the Local Law Enforcement Block Grant program. These programs in the past have provided states and local governments with Federal funds to support efforts to reduce crime and increase public safety, such as enhancing security measures around schools, establishing or supporting drug courts, and preventing violent and/or drug-related crime.

I find that shameful, especially as our fire fighters, police officers, emergency service workers and other first responders continue to be on the front lines of our nation's homeland defense. It is imperative that Judge Chertoff, if confirmed, stand by his philosophy of risk-based allocation and appreciation for the role of state and local partners when he prepares his department's budget in coming years.

In fact, the outcome of a number of homeland security imperatives will depend to a significant extent on Judge Chertoff's willingness to fight hard during the budget process. A good example of this is the addition of new border patrol agents mandated in the recently enacted Intelligence Reform and Terrorism Prevention Act of 2004. If the goals of this legislation are realized, the security of the northern border would be improved, a result I have worked for since 2001. Among many provisions, the act calls for an increase of at least 10,000 border patrol agents from Fiscal Years 2006 through 2010, many of whom will be dedicated specifically to our northern border. And yet the FY06 budget request did not come close to seeking the 2,000 new border patrol agents authorized for this year. Judge Chertoff must be willing to fight hard for full funding of this and other programs essential to the department's mission.

I appreciate that Judge Chertoff understands the critical importance of securing chemical facilities. There are hundreds of chemical plants in the United States where a terrorist attack could threaten more than 100,000 Americans with exposure to toxic chemicals. This is a homeland security vulnerability that has been recognized by many, yet we still have no mandatory Federal standards for chemical plants, and the Department of Homeland Security lacks authority to put such standards in place. Until Congress provides the department with such authority, Americans will continue to rely on voluntary security measures at chemical plants, which have been repeatedly shown to be lax.

I believe that the best solution to this problem would be to enact the Chemical Security Act that I have sponsored with Senator Corzine. However, in order to pass this or other chemical plant security legislation, we will need stronger support from the administration and from the Secretary of Homeland Security than we have had in the past. That is why I was encouraged by Judge Chertoff's testimony that he is aware of the significant risk of that sector based on his personal experience. He also testified that ``the Federal Government needs to be able to use a whole range of tools to bring the industry up to an appropriate standard'' and that ``the President has indicated that he supports, if necessary, the use of authorities to require chemical companies to come up to certain standards, with appropriate penalties if they don't do so.''

Thus, on balance, my personal exchange with Judge Chertoff--and the testimony he gave during his confirmation hearing--speak of his commitment to threat- and vulnerability-based funding, his keen awareness of other vital homeland security issues for New Yorkers, and his intent to work tirelessly. He is from New Jersey and knows the homeland security needs of the region from personal experience. Ultimately, his roots in the region, his personal experiences, and his expressions of commitment to policies that are essential to the security of New Yorkers, are decisive factors in my decision to vote to confirm.

One of the lessons we have learned since September 11 is that constant vigilance is required of the Congress; oversight and accountability must be our watch words. Oversight requires us to demand that the rule of law be respected by the executive branch, and that we do not countenance the flouting of the law or of treaties. It requires us to hold the executive branch truly accountable for its actions. If we have learned anything since that September day in 2001, particularly with respect to this administration, it is the timeless truth that ``eternal vigilance is the price of liberty.''

It has been said before, but it bears repeating--our Nation faces a new kind of challenge to our way of life. I have no doubt we will overcome this challenge, but it will only be overcome through maintaining and strengthening our civil society and our commitment to being a force for decency and respect for law in the world.

Judge Chertoff testified that, as Secretary, he will ``be mindful of the need to reconcile the imperatives of security with the preservation of liberty and privacy.'' I agree that one of the central dilemmas of our time is balancing security with liberty and privacy. As the 9/11 Commission said, ``Our history has shown us that insecurity threatens liberty. Yet, if our liberties are curtailed, we lose the values that we are struggling to defend.'' I believe that Judge Chertoff is professionally qualified to be Secretary of Homeland Security, and that he understands and respects the values that the Secretary works to defend. Therefore, I will be voting in favor of his confirmation.

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