Executive Session

EXECUTIVE SESSION

BREAK IN TRANSCRIPT

Mr. DURBIN. Mr. President, we are considering the nomination of Brett Kavanaugh to the United States Court of Appeals for the DC Circuit. Why are we taking extra time on this nomination? Why are Members coming to the Senate on both sides, some expressing support and others opposition? Why is this different from any judicial nomination? There are two reasons. This is not your normal Federal court. The United States Court of Appeals for the DC Circuit is the second highest court in America. It has been the launching pad for Supreme Court Justices. They consider some of the most complex and technical litigation that faces the Federal bench. It is not just another court.

Second, Brett Kavanaugh is not just another judicial nominee. Brett Kavanaugh comes to this nomination with not the weakest credentials in the history of this bench, but the second weakest credentials.

Earlier this month, Senator Kennedy called the Kavanaugh nomination a triumph of cronyism over credentials. Unfortunately, I must agree. The nomination of Brett Kavanaugh is a political gift for his loyal service to this President and his political party. Mr. Kavanaugh is not being given an engraved plaque for his fine service; he is being given a lifetime appointment to the second highest court in the land. By every indication, Brett Kavanaugh will make this judgeship a gift that keeps on giving to his political patrons who have rewarded him richly with a nomination coveted by lawyers all over America.

In light of his thin professional record, Mr. Kavanaugh bears a particularly high burden of proof. I have sat through the hearings with Mr. Kavanaugh. In my estimation, he has not met that burden. He has so little experience as a practicing lawyer, no experience as a judge. He had a special obligation when it came to these nomination hearings to tell us what he believes and what he would do on this important judicial assignment. He failed.

As I said about the DC Circuit, it is not just any court of appeals. It is the first among equals. It is based in Washington, but its rulings affect Americans from coast to coast. It is the court of last resort in some cases involving the air that every American breathes, the water that we give our children, the right of labor organizations to collectively bargain, whether Americans will have access to telecommunications, and even the price we pay for electricity.

The significance of the DC Circuit is seen in the way it has become the farm team for the Supreme Court. Over half of all the Supreme Court nominees during the past quarter century were judges on the DC Circuit where President Bush wants to send his staff secretary, Brett Kavanaugh. If Mr. Kavanaugh is confirmed for the DC Circuit, it would not surprise me if the Republicans would try to elevate him to the highest court in America.

Let's take a look at his experience for this job. Compared to others who have served on this important court, Mr. Kavanaugh's track record just does not stand up. He has never had a jury trial in his life. And he has never had a trial before a judge. I don't believe he has ever taken a deposition. I don't know if he has ever filed a motion in court. There is no evidence that he has any understanding, basic understanding, of trial practice in civil or criminal courts in America.

Think of that for a moment. Though this man has graduated from outstanding schools, he has clerked for important judges, he has never had to roll up his sleeves and represent the client or represent the United States of America or any State or local jurisdiction at a trial.

He has very little experience, of course, on the issues that come before this court. Nearly half of the cases in the DC Circuit Court involve Federal agencies dealing with the environment, electricity, labor unions and telecommunications. Mr. Kavanaugh was asked: Now, in this field of expertise that you want to be a judge in, tell us, what kind of cases have you handled? What kind of experience do you have? What did you bring to this? What kind of wisdom as a judge will you bring to this? He could identify only one case in his entire life that he had ever been involved in that related to any of those four important agencies.

During the 113-year history of the DC Circuit Court there has only been one judge, only one in its history, who has been nominated who had fewer years of legal experience than Brett Kavanaugh. That judge was a man by the name of Ken Starr. No other DC Circuit Court judge in the past 113 years has had less experience than Brett Kavanaugh.

Is that the best we can do? Is that the best the President and the White House can do for the people of America? Give us young men who may have great promise, but little experience? People who may be right on the political issues for this White House but have not demonstrated the wisdom or life experience that qualify them to stand in judgment on critical issues that affect the lives of every single American?

At his second hearing Mr. Kavanaugh tried to assure us that his career in government service was similar to others who have served in the DC Circuit. He compared his background in government service to a former DC Circuit judge by the name of Abner Mikva, who served with distinction on the DC Circuit Court from 1979 to 1995. It was truly a Lloyd Bentsen/Dan Quayle moment that Brett Kavanaugh would suggest that he was in Abner Mikva's league. That comparison is such a stretch.

Judge Mikva had 28 years of legal experience before he was nominated to the DC Circuit. Abner Mikva served for 9 years in Congress, 10 years in the Illinois legislature. He had worked for over 12 years in private practice. As the late Senator Lloyd Bentsen, who just passed away, said, to paraphrase, I know Abner Mikva; Abner Mikva is a friend of mine, and Brett Kavanaugh is no Abner Mikva.

Because of his thin track record as a lawyer, Mr. Kavanaugh had a special burden of proof to be candid and forthcoming with the committee, to tell us who he is and what he stands for. He did not meet that burden. Every time he came close to answering a hard question, he quickly backed away. But he was well-schooled in the process because he spent his time in the White House coaching judicial nominees not to answer questions. Well, he learned as a teacher, and he demonstrated it before the Senate Judiciary Committee.

For example, he would not tell us his views on some of the most controversial policy decisions of the Bush administration--like the issues of torture and warrantless wiretapping. He would not comment. He would not tell us whether he regretted the role he played in supporting the nomination of some judicial nominees who wanted to permit torture as part of American foreign policy, who wanted to roll back the clock on civil rights and who wanted to weaken labor and environmental laws. It would have been so refreshing and reassuring if Brett Kavanaugh could have distanced himself from their extreme views. But a loyal White House counsel is not going to do that. And that is how he came to this nomination. That is how he addressed the Senate Judiciary Committee with his loyalty to the President.

He would not tell us what role he played in the White House's unprecedented efforts to give the President virtually unchecked power at the expense of congressional oversight.

In light of Mr. Kavanaugh's failure to open up to the committee, we have to just guess about his brief career. He coauthored the Ken Starr Report; he represented Elian Gonzales; he worked in Florida on the Bush 2000 recount; he worked with Karl Rove and the Federalist Society to pick ideological judicial nominees. He has been the go-to lawyer time and time again for the far right in American politics. And now he is being handsomely rewarded for his loyalty, for his service to his political party.

Other than his judicial clerkships, Mr. Kavanaugh has only worked for two people during his entire legal career: President George Bush and Ken Starr.

Given this background, I asked Mr. Kavanaugh if he would agree to recuse himself in cases involving the Republican Party or the Bush administration. Clearly, he has a conflict of interest, at least the appearance of a conflict of interest, from all of the years he spent as a loyal Republican attorney. I asked him, Would you step away from cases that directly impact the Republican Party and the Bush administration policies? He refused.

The real question is whether Judge Kavanaugh would be fair and open-minded. And there are new concerns that have been raised about Mr. Kavanaugh's judicial temperament. I saw him at the last hearing with his wife and baby. He looks like a fine father--a beautiful young family. To all appearances, a good person coming from a good family. But those who have watched him in the courtroom have come to different conclusions.

Last month the American Bar Association downgraded Mr. Kavanaugh's rating after conducting additional interviews with judges and lawyers who had actually seen him in the courtroom and worked with him in the limited exposure he has had to America's courtrooms. A judge who was interviewed by the American Bar Association stated that Mr. Kavanaugh's oral presentation at the hearing was ``less than adequate'' and that he had been ``sanctimonious.'' That is not a great send-off if a person who is being nominated for a lifetime appointment to the bench, a person who will now stand in judgment not only of other judges but of the counsels and attorneys that appear before him.

A lawyer interviewed by the American Bar Association also said: ``Mr. Kavanaugh did not handle the case well as an advocate and dissembled.'' That doesn't sound very promising for someone seeking a lifetime appointment to the second highest court in the land with some of the most technical and difficult arguments and issues to consider.

One interviewee called Mr. Kavanaugh ``insulated.'' Another person said Mr. Kavanaugh is ``immovable and very stubborn and frustrating to deal with on some issues.''

Is that what we are looking for in a judge, an insulated person, immovable and stubborn, who dissembles when he is in the courtroom and has a sanctimonious way about him? I can tell you, as a practicing lawyer, that is a judge I would avoid, and most people would avoid nominating that kind of lawyer to become a judge.

The ABA also stated they were disappointed that Mr. Kavanaugh seemed to have a ``lack of interest'' in the Manual Miranda ``memogate'' scandal and that he failed to conduct an internal White House investigation as to whether the scandal had tainted the Bush administration's judicial nomination process.

This issue is one I know pretty well. I was one of two Senators whose computers were hacked into by Mr. Manny Miranda, who at the time was a Republican staff member, who worked at various times for the Senate Judiciary Committee and for the Senate Republican leadership. Mr. Miranda hacked into my computer, my staff computer, and stole hundreds if not thousands of legal documents--memoranda that had been prepared by my staff analyzing issues, analyzing nominees. Mr. Miranda stole these documents and then turned them over to organizations that were sympathetic with his political point of view. There was some question as to whether those documents somehow migrated to the White House decision process--legitimate questions because those were times when many of these nominees were very controversial.

When Mr. Kavanaugh was asked about these things, he was not that interested--either when the ABA asked the questions or when the questions were asked in the Senate Judiciary Committee. Those questions went to the integrity of the process of naming men and women to our Federal judiciary for lifetime appointments. You would believe that Mr. Kavanaugh, in his capacity as White House Counsel, would have taken that issue much more seriously than he obviously did.

This nominee is not the best person for an important job. Michael Kavanaugh does not deserve a lifetime appointment to the second highest court in the land.

I believe he has a bright future in some other setting. I think after practicing law, actually finding out what it means to represent a client, perhaps going into a courtroom someday, maybe sitting down before a judge, maybe taking a deposition, understanding what it means to file a motion in court, and what that means to go to argue for a hearing, maybe to prepare a legal brief, to argue a point of view, maybe win a few or lose a few, actually go into a courtroom with a client, pick a jury in a civil case, be a prosecutor in a criminal case, watch as the case unfolds before the judge and the jury, watch it go through to verdict, consider whether or not to launch an appeal--the things I have just described are not extraordinary.

This is the ordinary life of practicing attorneys across America. But my life experience, as limited as it was in practicing law, included all of these things. They helped me to understand a judge's responsibility--a trial court judge, even an appellate court judge. This is like sending Mr. Kavanaugh into a setting where he has no familiarity and no experience.

You might say: Well, maybe he will learn on the job. Maybe he will turn out not only to be a good law student but a heck of a judge. Well, it is not a question of trial and error here. It is a question of lifetime appointment. We do not get a makeover on this decision. If this Senate approves Brett Kavanaugh for the second highest court in the Federal judiciary in America, he is there for life.

Maybe he will learn on the bench. Maybe he will turn out to be objective on the bench. Maybe he will move away from a solid legal political background to understand the law. Maybe he will have some on-the-job training as a judge in the second highest court in the land. But is that the best we can do? Doesn't that harken back to other things in this administration that have troubled us--people being appointed to positions they clearly were not qualified for because they were well connected, they knew the right people? That should not be the test for the Federal judiciary. It certainly should not be the test for the second highest court in the land.

I believe the White House, I believe the Republican party, could have done better. There are so many quality judges across America who are Republicans, in my home State of Illinois and in Federal district courts, who could have been nominated for this important and prestigious position. Instead, this nominee falls short. It is no surprise to me that the American Bar Association downgraded his nomination.

I hope if he is approved that in the years to come he will prove me wrong. At this point, there is little evidence to base that on. But I hope for the sake of this court and for the Federal judiciary that is the case.

Mr. President, I yield the floor.

BREAK IN TRANSCRIPT

Mr. DURBIN. Mr. President, let me commend my colleague from the State of Oregon, a member of the Senate Intelligence Committee, a committee on which I served for 4 years. Senator Wyden's statement is consistent with his service on that committee. It shows that he takes that assignment very seriously, he does his homework on a very challenging committee assignment, and that he has given great thought and reflection to this important decision about whether General Hayden should be named to head the CIA.

Senator Wyden and I have discussed this nomination. There are some things he cannot share with me because they were learned behind closed doors in the Senate Intelligence Committee, but I have become convinced, as well, that General Hayden, despite his many great attributes and good qualifications, is not the right person for this appointment.

When we reflect on America since Ð9/11, there are many things that are very clear. First, this country was stricken in a way that it has never been stricken since the War of 1812, when the British invaded the United States, invaded this Capitol building, sacked and burned it. We found 3,000 innocent Americans destroyed on American soil--a gut-wrenching experience that we will never forget. It changed America and it called on the President, on the leadership in Congress, to summon the courage to respond.

In the days that followed that horrible event, there were some inspiring images. We can recall the videotape of firefighters ascending the stairway into the World Trade Center, to certain death, braving what they knew was a terrible disaster to try to save innocent lives.

We can recall the President of the United States going to the rubble of the World Trade Center in New York and in a few brief moments rallying America and the world behind our cause.

We can remember Members of Congress standing just a few feet away from this Senate Chamber, Members of Congress who hours before had been locked in partisan combat, who put it all aside after 9/11, sang ``God Bless America,'' and said: What can we do to save America?

After that, the response around the world; this great, giant, the United States of America, having suffered this terrible loss, was able to count its friends and allies very quickly. So many nations stepped forward and said: We are with you. We will help you. We understand that you must bury your dead and grieve your losses, but then you must defend yourself and your Nation for its future, and we will be there.

It was an amazing outpouring of support for our great country. It was a wonderful, encouraging moment.

The President came to this Congress and gave a speech shortly after 9/11 that I will say was one of the best I had ever heard, summoning us to gather together as a nation to defend ourselves against this threat of terrorism. Then, of course, we considered the PATRIOT Act. We changed the laws of America so our Government would have new tools to pursue the terrorists. It passed with an overwhelming bipartisan vote, very quickly, and we started to roll up our sleeves and take on this task.

At the time I was a member of the Senate Intelligence Committee. I realized then more than ever how important that committee was. Intelligence is the first line of defense, and good intelligence used wisely can protect America from terrorism and from enemies who would inflict great casualties and pain on us.

Then, a few months later, came a new challenge, a challenge we had not anticipated on 9/11. The President and this administration told us that the real battle was against Saddam Hussein in Iraq. I remember sitting in that Senate Intelligence Committee just days before the vote on the Senate floor about the invasion of Iraq and turning to a staffer who said to me: Senator, something is unusual here. This is the first time we have ever considered any kind of effort of this magnitude without asking the intelligence agencies of the United States to tell us what they know so we can gather information from every source and make a conscious and sensible judgment about what we should do. It is called a National Intelligence Estimate, an NIE.

So at my staffer's prompting, I requested a National Intelligence Estimate, as did Senator Graham of Florida. It turned out it was routine to produce them, but no one had taken the time to do that before the invasion of Iraq.

In very short order, just a few weeks, a National Intelligence Estimate was submitted to the Intelligence Committee. There were claims in that NIE that turned out to be false, but at the time we didn't know it. There were claims about weapons of mass destruction that threatened the safety of the United States of America. There were claims of capacities and capabilities by Saddam Hussein in Iraq that were greatly exaggerated. There were claims that Saddam Hussein and the Iraqis were producing nuclear weapons which could be used against the United States. Leaders in the White House were telling us they were fearful of mushroom clouds that could result in a nuclear holocaust. All of this was given to the American people and the Intelligence Committee.

The sad reality was when we sat in the Intelligence Committee behind closed doors, we knew that the American people were not getting the full story, that in fact even within this administration there was a dispute as to the truth of these statements, statements given every day and every night by the leaders of this administration.

We know what happened. We invaded Iraq. Saddam Hussein, in a matter of weeks, was gone as their dictator, and we came to learn that all of the claims about weapons of mass destruction were false, totally false. The American people had been misled.

There is nothing worse in a democracy than to mislead the people into war, and that is what happened. We learned, as well, that there were no nuclear weapons. All those who claim there was a connection between 9/11 and Saddam Hussein could find no evidence. The statements made by the President in his State of the Union Address that somehow or another Saddam Hussein was obtaining yellowcake or the makings of nuclear weapons from Africa turned out to be false, and the President had to concede that point.

Then, in light of it, we decided it was time to take a look. The Intelligence Committee on which I served decided to ask two questions: First, did our intelligence agencies fail us? Did they come up with bad information when they should have given us good information and good advice? Were we, in fact, misled into this war by that information? And second: Did any member of this administration misuse that intelligence information, use it in a fashion that did mislead or deceive the American people? Those were two specific assignments accepted by the Senate Intelligence Committee. I served on the committee while we were in the process of meeting that obligation. We came to learn the first assignment was exactly right. The Senate Intelligence Committee concluded, as did the House, that our intelligence agencies had failed us. Our first line of defense had failed us, giving us information that was totally flawed, information which was not reliable, information which never should have resulted in the invasion of Iraq.

The administration had argued that we have a new foreign policy, a preemptive foreign policy. We can't wait to be attacked, the President said, we have to attack first if there is a threat. It turns out the information used to measure that threat was wrong, in the invasion of Iraq.

Mr. President, 23 of us in the Senate voted against the use of force in Iraq, 22 Democrats and 1 Republican. We believed then, most of us, that the information being given to the American people was misleading, the intelligence information was not accurate.

It turns out that our estimate was true. It turns out that our invasion of Iraq was based on false pretenses and on intelligence information that was fatally flawed.

The second investigation to be undertaken by the Senate Intelligence Committee, promised more than 2 years ago, was that we would look into the misuse of this intelligence by members of this administration. That is a tough thing to ask a Senate Intelligence Committee, led by a Republican chairman, to do, because it is likely to bring some embarrassment to the administration of the President.

Unfortunately, as I stand here today, the promise of almost 2 years ago to complete this second phase has not been completed. We still don't know if members of this administration misused the intelligence.

But there are things that we do know, things that are very clear. It is clear that in the lead-up to the invasion of Iraq and afterwards there was a separate intelligence agency created in the Department of Defense by a man named Douglas Feith that became virtually a renegade, independent operation. It was not working in concert with other agencies of our Government gathering intelligence. That is inconsistent with what we hoped to be a coordinated intelligence effort in our Government. But Secretary Rumsfeld, who enjoyed the confidence of the President, was able to initiate this intelligence operation in defiance of many other intelligence agencies. We know that for a fact.

Then we came to learn several other things. We learned that after 9/11, the Bush administration, for the first time in modern history, decided that they needed to rewrite the standards of interrogation for detainees. For decades we had held to the standard of the Geneva code, which basically said that we would not engage in torture, cruel, inhuman, or degrading treatment. But the infamous Bybee memo, exchanged at the time with Alberto Gonzales, then-White House Counsel, and many others, was at least a suggestion that we could breach those rules and change those rules. That conversation, in closed sections of the White House, took place without the knowledge of the American people. But then the terrible disclosure at Abu Ghraib torture, inhuman treatment perpetrated, sadly, by those who were in the service of the United States.

It was clear then that the issue of torture was one that was front and center for us as a Nation to face during this time of terror. So with this torture issue before us, we also had other things to consider.

Not long thereafter came the news that this administration was engaging in activities which clearly were beyond the law--the so-called warrantless wiretaps of Americans. You see, under the laws of the United States and under our Constitution, one cannot invade through a wiretap the privacy of another without court approval. No executive branch office, Department of Justice, or FBI can engage in a wiretap without the approval of a court order or, when it comes to questions of international security, foreign intelligence gathering, through the FISA court, a special court created for that purpose. Those are the two options.

But this administration said that it was above the law; that it didn't have to answer to those courts; that it didn't have to work through those courts; it could engage in warrantless wiretaps through the National Security Agency, an agency administered by General Hayden.

Several weeks ago, USA Today disclosed more information indicating an invasion of privacy where the telephone records of innocent American people are being gathered by the same agency, the National Security Agency, in an effort I cannot describe in detail because I have not been briefed, but in an effort to find some intelligence information.

Now comes the nomination of General Hayden to become Director of the Central Intelligence Agency after all of this experience.

Let me say at the outset that I respect General Hayden. He is a man who has served his country with distinction for over three decades. Many say--and I cannot disagree--that he is one of brightest minds when it comes to intelligence, and the agencies that he has worked with in the past are clear evidence of that.

I honor and appreciate his service. I know he is a man of considerable knowledge and formidable intellect. He is well versed in the questions of intelligence, particularly in the most technical areas. However, I have three primary reservations about this nomination.

First, I am concerned about the role of General Hayden in the NSA's warrantless wiretapping of American citizens.

Second, I am concerned about how the CIA will treat detainees in their custody and how they will implement the clear prohibition on torture and cruel, inhuman, or degrading treatment standard that was passed last year in the McCain amendment, which I cosponsored, by a vote of 90-9 on the floor of the U.S. Senate.

I am also concerned about the issue of the General's independence, not merely his independence as an individual but his ability to stand up to the Department of Defense and the likes of Secretary Rumsfeld, and separate defense intelligence operations under Douglas Feith. I raised these concerns when I met with General Hayden, and they we were echoed by many members of the committee during the hearings.

First, I would like to address the issue of surveillance of American citizens.

As Director of the NSA, General Hayden presided over a program that carried out warrantless wiretaps on innocent Americans. Those wiretaps did not have judicial approval, nor did they have meaningful congressional oversight. Precious few Members of Congress were briefed about the wiretaps, and they were sworn to secrecy about this procedure.

General Hayden has stated that the Attorney General and other legal authorities within the administration had concluded that such actions were proper and legal. In fact, I have seen no evidence of that whatsoever.

We created the FISA court to issue warrants for such surveillance. If the administration believes the FISA court is not sufficient in this age of terrorism and high technology, the administration should come to Congress and ask us to change the laws, as we did with the PATRIOT Act.

In addition to warrantless wiretaps, General Hayden reportedly oversaw a program that assembled an enormous database, the largest in the history of the world, of literally millions of calls made by Americans to Americans in the United States. Tens of millions of Americans appeared to have been included in this database. And most of us in Congress learned about it on the front page of USA Today.

I am disturbed about the role that General Hayden played in overseeing these practices. It is certainly critical that the Director of the CIA protect our security but also not endanger our liberties.

Second, I am concerned about the way the CIA will treat detainees. When the McCain amendment was pending, it was opposed openly by Vice President Richard Cheney who said that he believed intelligence agents--those working for the CIA--should not be bound by the provisions of the McCain amendment. We disagreed. We passed, on the floor of the Senate, as I said earlier, by a vote of 90-9, clear standards barring torture, cruel, inhuman and degrading treatment. I believe that we should never engage in that treatment--and that is what the McCain amendment requires. Senator McCain said it well last year, and I quote him. He said, ``It's not about who they are. It's about who we are.''

I believe we should have one clear, uniform interrogation standard that applies to all United States personnel--those in uniform and those in a civilian capacity.

I was disturbed when General Hayden was meeting with me and did not appear to share that view. He was evasive. While he said that we must establish clear guidelines, he indicated he might prefer to have one standard for the military and another standard for intelligence personnel. He said he wanted to study the question, but that two sets of rules might be appropriate.

I disagree. There is only one standard. It should be clear and unequivocal.

Finally, there is the question of independence. The Pentagon controls an estimated 80 percent of the intelligence budget. That fact alone makes it critical for the CIA to vigorously defend its independence over the Department of Defense. We need an independent voice at the CIA.

I note that last year's intelligence authorization bill, as passed by the Senate Intelligence Committee, stated that the Director of the CIA should be appointed from ``civilian life.''

That bill in the end never reached the floor of the Senate for a vote, but we should nevertheless consider that recommendation seriously.

General Hayden assured me that he stood up to Secretary Rumsfeld in the FISA operation when he disagreed with him, and that he will continue to do so.

Colleagues on the Intelligence and Armed Services Committee, whom I deeply respect, including Senator Levin of Michigan, have concluded that General Hayden will assert that independence and stand up to the Pentagon. I certainly hope he does.

Within the Bush administration, the question of the independence of intelligence agencies is particularly important. That is because the intelligence process has been abused.

This administration clearly politicized and distorted the use of intelligence to promote the false premise that Saddam Hussein was tied to the 9/11 attacks and that Iraq was developing weapons of mass destruction, including nuclear weapons. We know now that was false.

In 2002, the administration undermined the independence and credibility of the intelligence process by creating the Office of Special Plans at the Pentagon under the leadership of Under Secretary of Defense Douglas Feith. Several of us addressed this issue as part of the Intelligence Committee's 2004 Report on the Prewar Intelligence Assessments on Iraq. And Senator Levin joined me in this.

We wrote:

The Intelligence Community's findings did not support the link between Iraq and the 9/11 plot [that] administration policy officials wanted [in order] to help galvanize support for military action in Iraq. As a result, officials under the direction of Under Secretary Feith took upon themselves to push for a change in the intelligence analysis so that it bolstered administration policy statements and goals.

I asked General Hayden about Douglas Feith and the Office of Special Plans. To his credit, he was critical of that operation. He said it was not legitimate ``alternative analysis,'' and he described the troubling pattern in which preconceptions shaped the search for intelligence.

General Hayden reiterated his discomfort with the Feith approach in testifying before the Intelligence Committee. I hope that when he is confirmed, as I am certain he will be, that General Hayden will go even further in opposing efforts to subvert the intelligence process.

Today, we face even graver dangers than we did in 2003 when Under Secretary Feith was operating his own intelligence shop.

The war in Iraq has claimed over 2,400 American lives, and there is no end in sight.

Iran has pursued three different methods of enriching uranium and has experimented with separating plutonium, moving closer to the possible development of nuclear weapons.

Osama bin Laden is still at large; al-Qaida has splintered in different and dangerous directions, and North Korea is expanding its nuclear arsenal.

All these issues make it extremely important that our intelligence community conduct independent, accurate, trustworthy analysis. And it is critical that we operate within the bounds of our own Constitution and our laws.

We should not have one standard for the military and another for the intelligence community, a position once argued as high in this administration as Vice President Cheney. We should not engage in torture or hold detainees indefinitely without of charging them with a crime.

Just 2 weeks ago, the President of the United States said it would soon be time to close Guantanamo. That certainly is something that many of us believe is in order. Those who are dangerous to the United States should be charged and imprisoned. Those who have no value to us from an intelligence viewpoint should be released, if they are not a danger to the United States.

We cannot ignore the fundamental privacy rights of American citizens and the moral values and rights reflected in the treatment of those detainees.

General Hayden will be taking charge of the CIA, by many reports at a time when the Agency is demoralized. He will have to oversee critical reforms.

Last December, members of the 9/11 Commission handed out report cards on reform for the Bush administration. They gave the CIA an ``incomplete'' in terms of adapting to its new mission.

I hope General Hayden can change that. I hope that he will be the independent voice that we need.

I yield the floor.

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