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National Defense Authorization Act for Fiscal Year 2014 - Continued

Floor Speech

Location: Washington, DC


Mr. COBURN. Madam President, to comment on my colleague from Massachusetts, he is correct that the tax credits for wind energy are expiring, but he is incorrect in his ascertainment that all tax credits are the same. The tax credits in the oil and gas industry are deferred tax payments, and the $7 billion they collect this year, in terms of deferred payments, in terms of intangible drilling costs, will, in fact, be made up for with $7 billion of payments from 10 years ago. So the net-net is zero, whereas the wind industry has a tax credit which the American consumer subsidizes to the tune of a significant amount, the value of the electricity that we get there. So it is viable--if we were to put the wind energy tax credit the same as we have in the oil and gas industry, I would happily support it, where it was a delayed capture of later revenues flowing back to the Treasury. But that is not what we want. We want to give a refundable tax credit directly to wind energy. It is not the same. The apples are not the same.

I came to the floor this evening regrettably having to come and make this statement I am making. In the last month we have seen a lot of things happen in the Senate, which have led to other things happening in the Senate. I do not think anybody is happy about it. But today, the leader is taking the unprecedented step--I say that underlining the word unprecedented--of having the Senate vote on a nominee who is currently under active investigation.

I have no premonitions or knowledge about the specific facts of that investigation. But what I do know, in checking with the Senate historian, the Senate library, and from the history of the Senate, is that it has never been done before. It has never been done. So my reason in coming to the floor is, No. 1, to defend my position and what should be the position of the Senate, and to make the case to my colleagues that we are doing a disservice both to this nominee and to the position he will fill.

By all letters of recommendation, Alejandro Mayorkas is an honorable man. President Obama is nominating him to be Deputy Secretary at the Department of Homeland Security. Under the new Senate rules, the minority has essentially no right to stop the majority from forcing through a nominee who possibly, just possibly, may be unfit for office on the basis of this investigation. Nobody is saying he is.

They are not saying no. They are saying wait. This is, in fact, the very act the Republicans were afraid of when Leader Reid facilitated the change in the Senate rules by breaking the Senate rules.

The Senate is going to cast this vote without knowledge, full knowledge, of advice and consent on his fitness for his position. We can do nothing to stop that. We realize that.

The precedent we are talking about is historic. Holding this vote in light of an active investigation into serious relevant allegations of misconduct by any nominee appears to be virtually without any precedent in this body. We searched extensively for any precedent, for the decision to hold a vote on this nomination.

The Congressional Research Service studied this. It has never happened before. Never. In fact, they discovered the opposite. The Senate has established a history and followed a practice that should lead us to postpone consideration of any nominee under investigation. Here are some examples they found.

In January of 2005, President George Bush nominated Ken Tomlinson to be Chairman of the Broadcasting Board of Governors. An active inspector general's investigation into allegations of unethical behavior by Mr. Tomlinson led the Senate panel to delay action on the nomination for over 18 months. He was never confirmed.

Later that same year, President Bush nominated Roland Arnall to the post of U.S. Ambassador to The Netherlands. At the time Mr. Arnall's firm was being investigated by regulators in 30 States for predatory lending. Then-Foreign Relations Committee chairman Republican Senator Richard Lugar consented to a request by Democrats that October to delay voting on the nominee because of the investigations. Senator Joseph Biden spoke out in favor of the delay, as did Senator Paul Sarbanes, who cited longstanding precedent for delaying a vote until the nominee was ``clear.'' Mr. Arnall was eventually voted out of committee, after Republicans concluded the investigation did not target the nominee personally, but he was not confirmed by the full Senate until the following February, 7 months after he was nominated, when his company agreed to end the investigations by settling the cases against him.

My friend President Obama, who nominated Mr. Mayorkas, was a member of the Foreign Relations Committee at that time. Then he seemed to agree that nominees facing investigations should not receive a vote. A 2006 LA Times story on Mr. Arnall's confirmation quoted then-Senator Obama's spokesman as saying: Because a settlement has been reached, Senator Obama will not seek to block his nomination.

A vote on another Bush nominee, Lester Crawford, was delayed for 2 months in 2005 while the inspector general of the Food and Drug Administration probed claims, allegations, that Mr. Crawford had an affair with a coworker and gave her preferential treatment. Once again, the OIG's review was complete. The OIG concluded that the allegations could not be substantiated, and the HELP Committee voted to confirm him.

In 2004, the Senate Banking Committee did not schedule a vote on Alphonso Jackson to serve as Chairman of the Department of Housing and Urban Development until the HUD inspector general determined Mr. Jackson had not violated the Department's workplace violence policies as subordinates had alleged.

All of this advises us strongly to delay a vote on Mr. Mayorkas until the OIG investigation into his alleged actions is concluded. I would suggest that we should learn from history and not move forward with this nomination. If it was true for the Senate then, and if it was true for Senator Biden, if it was true for Senator Obama, if it was true for their colleagues and many Senators who maintain this precedent until today, it should be true for us now.

Last week, when Mr. Mayorkas was considered by the Homeland Security and Governmental Affairs Committee, my chairman justified moving forward with the nomination by asserting that the DHS OIG had not identified any criminal wrongdoing by Mr. Mayorkas. At present, the DHS OIG is only considering allegations of conflicts of interest, misuse of position, mismanagement, and appearance of impropriety. In none of those situations I identified were the nominees under criminal investigation. Yet the Senate delayed its vote until each investigation was finished. Since the DHS OIG has not completed its investigation, we do not know if there will ultimately be any criminal findings. I doubt that there will.

We do know, based on the precedent that I cited, an investigation into any potential wrongdoing, whether criminal or not, is enough for the Senate to delay a vote on an important nominee, or at least it used to be.

Of course, the Senate recently changed. The majority leader exercised the so-called nuclear option, changing the rules by breaking the rules, granting my colleagues the new power to push administration nominees through the confirmation process with a simple majority.

The leader is attempting to use this new power to push through scores of nominees in the last few days this session. But scrutiny and judgment should not be diminished in a partisan rush to get one's way. Forget the rest of the nominees; this is one where an open investigation is currently underway. With this nominee before us, Mr. Mayorkas might do well to wait for all the facts.

As we all know, the DHS OIG is also currently under investigation. This office is reviewing the leader who recently resigned. They are reviewing allegations of conflict of interest, misuse of position, mismanagement of EB-5 investor visa program, and an appearance of impropriety. They are all serious concerns. I hope they aren't true, but right now we don't have all of the facts.

While I understand OIG is not currently aware of any criminal activity, since the investigation is still open and several interviews remain, that could possibly change.

As I understand, however, the OIG plans to complete its investigation and release its findings in a few short months. Until then, we won't know what is only an allegation and what will be proven by evidence and facts.

Most concerning to me is the fact that the White House failed to alert me or the committee chairman to the fact that Mr. Mayorkas was under investigation, which they had an obligation to do. In fact, the letter from White House counsel conveniently doesn't confirm or deny whether the President was aware Mr. Mayorkas was even under investigation. It is unclear to me why Chairman Carper wasn't troubled by the White House being less than honest with him about a nominee he was expected to fast track for nomination.

I have spoken to a number of whistleblowers within DHS who have concerns about Mr. Mayorkas' fitness for position. These whistleblowers have made serious allegations about how Mr. Mayorkas has overseen and influenced the EB-5 program. They are only allegations, but they do raise questions. They raise questions about his allegiance to DHS's core mission to prevent terrorism and enhance security.

A number of the allegations extend well beyond the EB-5 program and raise concerns about the fitness for the No. 2 position in DHS. They include the following: attempts by Mr. Mayorkas to obstruct the investigations by Congress; allegations of preventing program integrity measures requested by the Federal Bureau of Investigation; intimidation of employees who questioned agency policies; susceptibility to political influence; failing to properly enforce program integrity mechanisms, resulting in potential threats to national security.

Whistleblowers who spoke to the Wall Street Journal said that Mr. Mayorkas fast-tracked approvals of certain EB-5 applications over objections regarding the suspicious source of funds to rebuild the casino in Las Vegas which, in fact, was noted in a recent article by the Washington Times.


Mr. COBURN. I understand that some of my colleagues on the other side are frustrated that whistleblowers have not come forward to speak to them. To be clear, I have communicated this request to the whistleblowers and have invited those whistleblowers who have spoken to come to my office to speak to the majority, twice. But they have told me that they have the fear they will face retribution if their identities become known and that they will lose their jobs. Putting myself in their shoes, I can't blame them. I cannot provide them with protection.

They have also heard Members of this Senate dismiss their serious allegations. For example, the Senator from Delaware referred to the whistleblower allegations as rumor and innuendo. If you were an official who had come forward with serious concerns about improper behavior, potentially putting your livelihood at risk, would you feel comfortable speaking with somebody who has already dismissed your allegations as rumor and innuendo?

So we will leave it to the inspector general's office to consider whistleblower allegations and all of the evidence to determine whether any inappropriate or criminal activity took place. Again, we will know that judgment in a short 2 months.

However, we do have other information that raises serious concerns about this nomination. The committee's business meeting last week to consider Mr. Mayorkas is a perfect example of why the Senate should wait for the OIG's investigation to be completed. At that meeting the chairman gave a lengthy opening statement that made a number of concerning and inaccurate statements which served to denigrate the 650 employees at the Office of Inspector General at Homeland Security.

The office deserves some criticism, that is for sure, as our Subcommittee on Financial and Contracting Oversight has determined. Rather than rely on their insights, he came up with some of his own. There are actual misstatements of fact, and they only serve to further obscure a complicated and difficult situation.

For example, the chairman claimed that 3 days before the confirmation hearing on July 25, information about the OIG investigation was leaked to Congress and the media in a highly irregular manner.

As he knows, and his own committee record should indicate, the existence of the investigation was not leaked to Congress in a highly irregular manner, it was emailed to his staff, as well as mine, as an official communication by the DHS OIG congressional liaison office. If there was anything irregular about the situation, it was that the White House had not already confirmed there was an investigation ongoing. We had a right to that information, and it had been improperly kept from us.

In the face of the White House's inappropriate omission, the OIG chose to inform us. I am sure it was a hard choice, but I believe it was the right one. If they had not done so, we would not have known of the investigation of the sort which the Senate, in normal times, would have given great weight to and not moved forward on.

As DHS often tells us: If you see something, say something.

The chairman also repeatedly faulted the OIG for refraining from interviewing Mr. Mayorkas until the end of its investigation. This appears to be a criticism borne from a lack of experience and knowledge of the investigative process.


To my amazement, Director Mayorkas has never been contacted about this EB-5 investigation.

Later he said:

I cannot understand why they [OIG] have not talked to Mr. Mayorkas.

It is common practice to investigate the central figure in an investigation closer to the end of an investigation after evidence has been reviewed and collected. There are many reasons for this practice. One is that you do not know what to ask the subject until you have gathered all the information you can about his or her alleged misconduct. Another is that it minimizes the impact of the investigation on the subject, which can be an understandable concern when investigating a busy top official such as our present nominee. Early meetings can result in having to hold several interviews with the same official, asking questions about topics or allegations which could eventually be dismissed without their testimony by not identifying exculpatory evidence beforehand.

While the scheduling for this interview was upsetting to the chairman, it should not be to Mr. Mayorkas. He is a seasoned prosecutor and familiar with the process of the investigations, and he knows what to expect.

The chairman also claimed at the committee vote that the OIG has repeatedly given him deadlines and had missed them. The chairman inferred that we could not trust their word on when this investigation could be completed.

Specifically he said: ``I was ..... informed that the investigation was likely to conclude in October.''

Later he claimed: ``We have no guarantee this investigation will simply not drag on and on ..... it has already slipped several times.''

Later he added:

Each time we get an estimated timeline for completion, the date slips. First we were told October, then perhaps December. And as of last week, the IG said there were at least several months of work remaining.

None of this is true. According to my office records of the conversations with the inspector general, we have no record or recollection that the inspector general ever promised a date certain of completion in October. Neither do we have any record indicating the IG suggested December. Unless the IG communicated to the chairman these deadlines in the private conversations which he arranged without my knowledge or involvement, these statements appear to be simply false.

I would also say I cannot imagine the chairman or staff would engage in a private conversation with the inspector general regarding a sensitive investigation into a political official. Such conversation would be a breach not only of our practices but could raise ethical concerns of exerting undue influence upon an official proceeding.

I urge him to correct the Record or show us in detail the conversations where the IG made these points and promises.

The chairman also stated this fact, and news outlets erroneously reported this inaccurate claim, that the investigation was being handled by only one investigator and two assistants.

His quote was: ``We learned that there is one investigator assigned,'' he claimed, ``one investigator and two research assistants.''

This is not true. The OIG has told our staff the case has a lead investigator--and that is true, an absolute common practice for investigations and most investigative and sensitive endeavors--but they were further told that the OIG had a rotating team of investigators, experts, research assistants, and staff help on various aspects of the investigation. This is a common practice, assigning leads to individual investigations but sharing a larger pool of assistant investigative resources. It is followed, to a great extent, by our own Permanent Subcommittee on Investigations. I don't understand why the chairman's characterization would stray so far from the facts established in conversations involving both our staffs or from common sense.

I am also disappointed that it characterized the investigation as having a ``lack of progress,'' which was ``unacceptable'' and ``unfair, not just to Mr. Mayorkas but to a Department full of people who need leadership, and to a nation that is counting on the Department to help protect them.''

The truth is it is not uncommon for investigations of senior officials to last a year or longer and is not a matter which should be rushed by anyone, certainly not the chairman of the authorizing committee.

This is the kind of rhetoric which causes concern in some quarters that the chairman and others are applying inappropriate pressure on an agency's internal processes and deliberation. Political pressure is simply not helpful to anyone. In fact, it can actually hinder the investigation and weaken public acceptance for the findings, particularly if they exonerate Mr. Mayorkas. People may allege, as they have already, that the Office of Inspector General waters down and weakens its finding in response to political pressures such as this.

If the OIG investigation results in a clean bill of health for Mr. Mayorkas, how many Americans, how many DHS employees, will wonder if the chairman's repeated disparaging remarks were indicative of a political pressure applied which improperly swayed the results? No one is served by his comments. What is more, they are not a reflection of the shared concern he voiced with me in our joint correspondence to the inspector general. I simply do not understand why he would intervene in such a vocal, public way, which could cast doubt and suspicion on the results of the investigation.

The other thing about this vote is it is unfair to Mr. Mayorkas. I have talked a lot about process and the need to know the findings of the DHS OIG report before we vote on Mr. Mayorkas. But no one seems to understand just how unfair this vote is to the nominee. By pushing his nomination through both the committee and the full Senate, Senator Carper and Leader Reid have denied Mr. Mayorkas a chance to win bipartisan support.

I have only voted against one nominee who has come through our committee, only 1 out of 20. I would like to be able to vote for Mr. Mayorkas if, in fact, OIG shows him a clean bill.

The reason it is sad that he can't win bipartisan support is that under the new Senate rules it is possible for my colleagues to confirm him without a single Republican vote. When they do that, they will be delivering to the Department a nominee who arrives with only his party's support, and he will be trailed by a cloud of doubt and discontent.

The allegations against Mr. Mayorkas relate mainly to his management of the EB-5 immigrant visa program in his role as Director of the U.S. Citizenship and Immigration Services. As I understand it, the investigation into Mr. Mayorkas began in an unconventional way by one person speaking out after their heavily documented concerns were dismissed. To me, this only adds validity to the allegations.

In the course of its investigation, the DHS OIG discovered other allegations of impropriety, including conflicts of interest, misuse of position, mismanagement, and the appearance of impropriety. Those allegations could speak to a candidate's fitness for public service, especially if he is not fully cleared to help lead the Department of Homeland Security. It is wholly unreasonable to ask Senators to endorse the nominee's fitness for service until those questions are answered.

In an attempt to discredit the investigation, some people have cited the problems plaguing leadership in the DHS OIG office, the inspector general in particular. In fact, the Financial and Contracting Oversight Subcommittee of the Committee on Homeland Security and Governmental Affairs is currently conducting and will release soon their bipartisan investigation into a number of allegations.

While I agree those allegations surrounding OIG leadership are troubling, the problems of one person do not invalidate the work done by an office of over 650 people. OIG work in every agency should be taken seriously.

In January of this year, Senator Carper joined me and members of the Homeland Security and Governmental Affairs Committee in sending a letter to President Obama urging him to fill the vacant inspector general positions at a number of key agencies, including DHS. In that letter, we said, ``Inspectors general are an essential component of government oversight.'' We do a disservice to that statement when we preclude the opportunity to, at a minimum, review the work done by the DHS OIG, draw our own conclusions, and then vote accordingly without all the facts before us.

Even more concerning, by denigrating the open DHS OIG investigation, the Senate is sending a message to other OIGs that their investigations don't matter. Obviously, that is incredibly significant given our dependence on these watchdogs to oversee the huge government agencies and bureaucracies created by this body. We must respect and support the work done by inspectors general. In my opinion, the damage being done to the DHS OIG and the respect of IGs throughout the government by holding this vote is far worse than any damage done by the office's current leadership.

The results of this investigation are not the only unknown regarding Mr. Mayorkas's service as Director of U.S. Citizenship and Immigration Services. Despite a number of concerns regarding national security and criminal vulnerabilities in the EB-5 program, we know the program expanded drastically under the nominee's hand and we have not yet seen evidence that he pursued significant regulatory changes to address the weaknesses that were known.

Two months ago I personally asked DHS and other agencies for an answer on how the administration is dealing with the concerns, and I have received no response as of yet. These include an October 18 letter in which I requested information from Acting Secretary Rand Beers on EB-5 national security concerns identified by the agency itself in a draft report. I received no response.

The same day, I also asked Acting ICE Director John Sandweg for the same information. I received no response.

I also requested information from National Security Adviser Susan Rice regarding known national security concerns created by the EB-5 program. To date, I have received no response.

Just last month, on November 1, Senator Grassley and I requested information from Acting Secretary Beers on how the agency is addressing the known national security concerns with EB-5. Again, silence. No response.

I ask unanimous consent to have printed in the Record these letters requesting information.


Mr. COBURN. Given that we are considering promoting Director Mayorkas to be second-in-command at DHS, it is appropriate that we consider how he managed this program and whether he addressed criminal and national security concerns, including exploitation of the EB-5 regional center program by terrorists, spies, and other threatening actors. These weaknesses were apparently the subject of repeated examinations by the administration.

I have repeatedly pressed the administration for more information regarding the weaknesses in the EB-5 program under Director Mayorkas and what actions it has taken to remedy those weaknesses. The chairman has declined to join in this inquiry. Why is that? Why would the chairman decline to join in finding out the truth? I have not received documents or any of the information I have requested.

At the same time there is no public record of steps Director Mayorkas has taken to address EB-5 concerns. For example, to date, USCIS has failed to promulgate any regulations shutting down regional centers being exploited by criminals or terrorists. This raises serious concerns with me.

When Congress created the EB-5 program in 1990, the goal was to stimulate the U.S. economy through job creation and capital investment by foreign investors. To that end, the original program--called the basic immigrant investor program--required immigrant investors to invest $1 million in a commercial enterprise that would create or preserve at least 10 jobs. The investor was initially granted conditional permanent residency, but after 2 years and proving the creation of 10 jobs, they were eligible to become a permanent resident.

In 1992 Congress authorized a second EB-5 pilot program allowing immigrants to pool investments through DHS-approved regional centers. In seeking approval from DHS, the regional center submits a proposal to DHS detailing how it plans to promote economic growth in that region. By investing in a regional center, immigrant investors can take advantage of relaxed job standards to measure both direct and indirect job creation. While direct jobs are actual identifiable jobs for qualified employees, indirect jobs are considered those created collaterally by the investment.

While the regional center program was set to expire at the end of 2012, last September it was reauthorized for 3 more years. Despite known national security concerns, no changes were made to the program by the Judiciary Committee.

In total, over 25,000 people are currently in the United States through the EB-5 program. Since its inception, the EB-5 program has been plagued with wide-ranging problems. Mr. Mayorkas took over this program in 2009. There has been a notable expansion of the program since he took it over. It now sees $3.3 billion passed from foreign investors in exchange for visas to reside in our country. Yet the serious security weaknesses have persisted, as well as alarm among senior officials. These problems include the agency failing to determine if the program is meeting its basic goal of creating 10 jobs per investment and defrauding would-be immigrants with breaches of national security with suspected terrorists using the program to enter the United States.

In 2012 the national security staff coordinated a review of the EB-5 regional center program by five agencies focused on vulnerabilities relating to the financial flows and securities offerings that routinely accompany the investment component of the EB-5 program. That draft report raised major concerns with the investments being made by EB-5 investors. For example, the investigation found one regional center filed false documentation in an attempt to support the creation of jobs. The same report also noted investments being made to a business that never existed and could never exist, headed by an individual using a pseudonym due to a criminal record of importing counterfeit products into this country.

The draft review noted the high risk that EB-5 program participants may attempt to use the program as a tool or a channel for money laundering, tax evasion, or other illicit financial activity. This type of activity was aided by the fact that known criminals are not statutorily prohibited from owning, managing, or recruiting regional centers. We just reauthorized that.

This national security staff draft review also references another interagency review looking at the national security threats associated with the EB-5 program, stating that the vulnerabilities relating to possible infiltration by terrorist groups or foreign operatives are also before the NSS and are being addressed by the interagency task force.

Understanding we have only seen a draft of the national security staff's forensic audit and have not seen information about the interagency review of possible infiltration by terrorist groups or foreign operatives, I wrote to Susan Rice, the National Security Adviser, on October 18 requesting that information. She has not addressed any concerns. She has not answered our letter.

The Department of Homeland Security also conducted its own internal assessment of the EB-5 regional center program, examining criminal and national security vulnerabilities. In response to an apparent tasking from DHS Secretary, ICE prepared a review of the program. Here are the vulnerabilities they noted and identified: export of sensitive technology, economic espionage; use by foreign government agents, espionage; use by terrorists; investment fraud by regional centers; investment fraud by investors in this country; fraud conspiracies by investors and regional centers; illicit finance and money laundering.

The agency's own draft analysis makes clear that the EB-5 regional center program can be exploited by terrorists, criminals, and foreign operatives. Further, it identified regional centers as a means for facilitating espionage at the highest levels by foreign governments. To that end, the review by ICE proposed that the regional center program be sunset--be done away with--because there can be no safeguards that can be put in place that will ensure the integrity of the regional center model.

As I stated before, I sought more information about DHS and ICE's internal review of the EB-5 program. I wrote to Acting Secretary Beers on October 18 requesting information about the findings of this review and what actions were taken in response. I have not yet received a response to my inquiry.

Recently, we received a draft DHS OIG EB-5 regional center audit. It is my understanding that we are soon to get this final report. In the draft, it includes the following statement: USCIS--under Secretary Mayorkas--fails to ensure regional centers meet all program requirements. USCIS--under the nominee, Mr. Mayorkas--inconsistently applies program regulations and policies. USCIS doesn't always properly document decisions and responses, giving the appearance the program is vulnerable to inappropriate influence.

This is all under the guise of a nominee whom we will vote on late tonight.

Since the program is so poorly run by USCIS, the draft DHS OIG determined USCIS is limited in its ability to prevent fraud or national security threats that could harm the United States, nor could the agency see where the EB-5 program was improving the U.S. economy and creating jobs for U.S. citizens, as intended by Congress. This draft report also outlines a number of recommended actions for the Director.

Last week Senator Carper asserted it was Congress's fault that the EB-5 program was susceptible to fraud and national security threats because it hadn't provided the proper statutory authority and that new statutory authority which was included in S. 744, the immigration bill, would have solved the problem. But the draft DHS OIG report makes clear that under its existing authority, the agency has the ability to issue regulations to deny and even terminate regional centers identified as fraudulent or national security risks but has failed to do so.

They also recommended that the Director provide USCIS with the authority to deny and terminate EB-5 regional center participants at any phase of the process when known connections to national security or fraud risks are identified; that they should make explicit that fraud and national security concerns can constitute a cause for revocation; that he should give USCIS the authority to verify that foreign funds were invested in companies that create U.S. jobs and to ensure requirements for the EB-5 regional center program are applied consistently to all participants. None of these recommendations request any additional congressional authority; therefore, it is at least arguable that the action could have been taken by Director Mayorkas to prevent national security vulnerabilities in the EB-5 program. That hasn't happened.

The draft report also recommends that other corrective action should be taken by Director Mayorkas as well.

Since USCIS failed to properly apply its existing EB-5 policies and procedures, DHS OIG recommended developing a memorandum of understanding with the Departments of Commerce, Labor, and the SEC ``to provide expertise and involvement in the adjudication of applications and petitions for the EB-5 regional center program.''

A third recommendation in the draft report related to the failure of the agency to maintain any metric as to whether the program was actually achieving its intended purpose. The DHS OIG asserted that Director Mayorkas should ``conduct comprehensive reviews to determine how EB-5 funds have actually stimulated growth in the U.S. economy in accordance with the intent of the program.'' That hasn't been done.

Finally, the draft report directs Mr. Mayorkas to ``ensure quality assurance steps to promote program integrity and ensure that Regional Centers comply with the Code of Federal Regulations.'' The implication there is that they don't.

All of these recommendations raise serious concerns about the way Director Mayorkas was overseeing the EB-5 program and, in turn, should be considered as a qualifying factor to determining his fitness to be second in command in charge at the Department of Homeland Security.

To summarize, we know the national security staff and the Department of Homeland Security conducted reviews of the investor visa programs Mr. Mayorkas has been overseeing since 2009. These reviews found that the program created a danger to national security--including the threat of exploitation by spies, criminals, and other national security threats. I and others have asked for more information about the potential national security vulnerabilities in the EB-5 regional center program, and we have received no answers.

What we do know is that Director Mayorkas dramatically expanded a program that the administration and even DHS itself apparently believes to be a threat to national security. And according to a draft report by the inspector general, he did not take all of the actions which he should have taken and which were at his disposal to fix these vulnerabilities and to make sure this visa program wasn't bringing spies, terrorists, or other terror threats into the country.

Finally, I would say this vote is not fair to the Department of Homeland Security. DHS is the agency we trust to secure our borders, make our skies safe, and to help our Nation protect us from terrorism. We know the Department has faced many challenges and has often struggled to execute its responsibilities over the past 10 years since its inception. And DHS has some of the lowest morale in the government.

This week the Senate voted with strong bipartisan support to approve Jeh Johnson's nomination to be Secretary of the DHS. I was proud to support his nomination. He is the kind of leader DHS needs to help it address its many challenges and to fulfill its mission of making our Nation safe. He needs a strong second-in-command in whom he and all employees can have full confidence.

It is this body's job to vet those leaders and ensure they are beyond reproach. With the cloud of this investigation and with many of our unanswered questions about Director Mayorkas's tenure as the Director of USCIS, we do not have full confidence that he should be in second command at DHS.

By voting on him now, this body is sending the wrong message to all DHS employees. Right now, we cannot--let me repeat--we cannot determine whether Mr. Mayorkas is fit or unfit for this important position.

Finally, I would say this vote is not fair to the American people in confirming a nominee for such an important position who has not been properly vetted. The American public depends on us to fulfill our constitutional mandate to properly advise the President on certain executive branch nominees. Here, we are not doing that. We are not doing that. In fact, we are voting to install a nominee who could be seen as unfit to serve in the No. 2 position at DHS. Now, he may be fit, but this agency is tasked with protecting our country from terrorists. It is our responsibility to guarantee to the American public that the leaders at DHS are beyond reproach.

In this vote, Leader Reid is not only ignoring the rights of the minority but the longstanding precedent of the Senate. He is ignoring history, and he is inviting us all to do the same. But history has a difficult way of teaching its lessons. It was long the purpose of the Senate's procedures to remember these lessons so the country does not have to suffer such lessons again and again.

My final comments are these: Those who are going to vote for Mr. Mayorkas do so at the risk of not knowing what the investigation shows. They also do so at the risk of obviating the oath they swore when they came to this body: to fairly and appropriately evaluate their decisions about advice and consent.

My hope is that Mr. Mayorkas is cleared. But, unfortunately, he won't have my vote and that of several of my colleagues because we don't have the information with which to make that judgment.

I yield the floor.


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