NOMINATION OF JOHN ROBERT BOLTON TO BE THE REPRESENTATIVE OF THE UNITED STATES OF AMERICA TO THE UNITED NATIONS--Continued -- (Senate - May 26, 2005)
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Mr. BIDEN. Mr. President, I rise to speak about the vote we will be casting at 6 o'clock today, the cloture vote. I had some opportunity to speak on the merits and demerits of the Bolton nomination yesterday and had an opportunity to discuss this issue with my colleague, Senator Lugar, and others who were on the Senate floor at the time.
Today, I rise to focus on what the vote that may take place at 6 o'clock today is about. We are about to vote on a genuine constitutional option. The vote we are about to cast on cloture, if it takes place, is about whether we are going to stand up for this coequal branch of Government's rights to review relevant information in the exercise of our constitutional responsibility and our constitutional power to advise and consent to nominations put forward by the President or whether we are going to let the executive branch define for us what information is necessary in the exercise of our constitutional responsibility.
The President has his constitutional responsibilities, defined in article II. We have our constitutional responsibilities, defined in article I. Our responsibility is to advise and consent as it relates to any nomination for an appointive office, above a certain level, that the President of the United States makes. It is the President's obligation to propose; it is our obligation to dispose of the nominee.
The State Department has denied the request completely, stating that to fulfill it would chill the deliberative process and that it ``does not believe the requests to be specifically tied to issues being deliberated by the Committee.''
The department's assertion about deliberative process is not trivial. That concern did not stop the Department and the CIA, however, from already turning over numerous materials to the committee that involve the very same type of deliberative process--preparation of speeches and testimony. And the department has made no effort to justify why it is drawing the line here.
The Department's second assertion--that the Syria material is not relevant to the committee's inquiry--is nothing less than an outrageous attempt by the executive branch to tell the Senate how it may exercise its constitutional power.
For several weeks, the Committee on Foreign Relations has been requesting two types of information which have been denied to it.
The first relates to preparation for testimony on Syria and weapons of mass destruction that Mr. Bolton was to give in 2003. The State Department has denied the request completely, stating that to fulfill it would chill the deliberative process and that it ``does not believe the requests to be specifically tied to issues being deliberated by the Committee.''
The Constitution says that the Senate shall advise and consent to nominations. The appointments clause does not limit the Senate's power to review nominations to those matters the executive branch deems relevant.
Our Founding Fathers designed a system of checks and balances, not a system of blank checks.
We must defend the Senate's constitutional powers, however, or we shall surely lose them.
The second type of information the committee has not received relates to Mr. Bolton's requests to obtain the identity of U.S. persons cited in NSA intercept reports. We are told that Mr. Bolton did this on 10 occasions, involving 19 U.S. person identities.
The chairman and vice chairman of the Intelligence Committee have been shown these intercepts, but Senator LUGAR and I have not.
Even Senators ROBERTS and ROCKEFELLER were not told the identities of the U.S. persons, moreover, information that was readily shared with Mr. Bolton and even with his staff.
No one in the executive branch has explained why an Under Secretary of State--and a staff member not holding any Senate-confirmed position--may see this information, but the chairman and ranking members of the relevant Senate oversight committees may not.
Senator ROBERTS tells us that after reviewing the contents of each report, it is apparent that it is:
not necessary to know the actual names [of the U.S. persons] to determine whether the requests were proper.
With all respect, I believe my friend has it wrong. Learning the actual names is the key to the inquiry--and it is impossible to make any judgment about the propriety of Mr. Bolton's requests without knowing the names.
I am inclined to think there is nothing improper in Mr. Bolton's requests for this NSA information.
But the longer the executive branch withholds this material, the more I start to wonder. If Mr. Bolton did nothing wrong, then why won't the administration let us confirm that?
Senator ROCKEFELLER reported to our committee yesterday that Mr. Bolton, upon learning from NSA the identity of a U.S. official who had delivered a message just the way that Bolton wanted it to be delivered, sought out that U.S. official and congratulated him. That action may have violated the restrictions that NSA imposes on further dissemination of its information.
More importantly, if Mr. Bolton used U.S. person identities in an NSA intercept to congratulate officials who did what he wanted, might he also have used such U.S. person identities to attack officials with whom he did not agree? That has been suggested in the press, and while I doubt that Mr. Bolton would do that, Senator ROCKEFELLER's report urges the Foreign Relations Committee to seek:
. . . a more complete understanding of the extent to which he may have shared with others the nineteen U.S. person identities he requested and received from the NSA.
All Members of the Senate should understand: both the integrity of the nomination process, and the Senate's constitutional role, are being challenged today.
The failure of the administration to cooperate with the committee, and one of the rationales offered for this failure--that the:
Department does not believe these requests to be specifically tied to the issues being deliberated by the Committee --has no constitutional justification.
The administration has asserted neither executive privilege nor any other constitutionally-based rationale for not cooperating with this committee.
It has no right under past practice or under constitutional theory to deny us information on a nomination based on its own belief that the request is not specifically tied to the issues being deliberated by the Committee.
Under the doctrine of separation of powers, the Senate is a co-equal branch of Government. It is within our power--and ours alone--to decide what we think is relevant to our deliberations in the exercise of the advice and consent power.
To acquiesce in the administration's remarkable assertion would undermine the Senate's power. If we vote on this nomination without getting all the facts first, that it is a step that we will all come to regret.
The request for this cloture vote is not a filibuster. If there were a filibuster, we would have demanded the use of 30 hours of debate time post-cloture.
This vote is a vote about the Senate's constitutional power. It is a vote to tell the executive branch it must turn over information the Senate has requested.
I urge my colleagues to reject cloture.
The Constitution, to paraphrase Hamilton in Federalist 76, is designed to make sure that nobody becomes an appointed official at the executive level, the Cabinet level, whom the President does not want. That is a guarantee. But it does not guarantee the President gets the first person he asks for, or the second person. It guarantees that the Senate will use due diligence in determining whether the person the President of the United States nominates to fill a position--in this case, ambassador to the United Nations--whether that appointment is in the interest of the United States of America.
That is our job. We are not filibustering. This is not about whether we will vote on Mr. Bolton's nomination. The Senator from Connecticut and I and others have said, we are ready to vote on Mr. Bolton's nomination, if you give us information that we have requested and are entitled to in assessing whether Mr. Bolton should go to the U.N. representing the United States of America.
The President has an option under the Constitution. He can say, Senate, what you are asking for is a violation of the separation of powers doctrine; you are not entitled to the information you seek because it falls into the purview of what we call executive privilege. In order for me as President--or for any President--to be able to conduct my job I must be able to have conversations with my key people that are wide ranging and open with the sure knowledge they will never get beyond this Oval Office; otherwise, the President couldn't do his job. That is what executive privilege is all about. As the Executive, I have the privilege to have confidential discussions with my subordinates. Or, the information you are seeking infringes upon the power of the executive in such a way that you are usurping article II powers, or attempting to yield them, like Estrada, to the third branch of Government in article III.
They do not assert any of that. They just say the information we have asked for, in their opinion, is not relevant to our legitimate inquiry. That is a new one for all the years I have been here.
I thank the majority leader of the Senate, Senator Frist, for trying what I believe has been his level best to get the information. He and I had a call today. He has talked about this. I am sure I am not revealing anything I shouldn't. He contacted the National Security Agency. He said, Why can't we see the so-called intercepts we are talking about? Give me, the majority leader, the same information you gave to Mr. Bolton and his staff.
The majority leader was surprised when he was told by a general running the National Security Agency, No, I won't give you that. I will give you the same thing I gave to the Intelligence Committee which is a redacted document. That is a fancy phrase for saying, the document without the names.
I said, Mr. Leader, I think that is not good enough. I think he knows it is not good enough. This is strong-arming. They are making no argument as to why we are not entitled to it.
I remind Members, the information we are seeking is information Mr. Bolton's staff got. Mr. Bolton, as important as an under secretary is, is not the majority leader of the Senate; he is not the Senator from Connecticut. Mr. Bolton's staff got this information.
I asked the leader why they wouldn't release the information, and he said because it is highly secret. Translate that. Got that? They are not going to give information to the leader of the Senate because it is secret. In the neighborhood I come from, that means, you don't trust me. The nerve of this outfit to say they are not going to give the information.
With regard to Syria--and my time is about up--we have asked for information relating to whether Mr. Bolton was lying to us and whether Mr. Bolton was trying to get us into war with Syria in the summer of 2003 when a lot of people wanted to go to war.
Remember the argument? The argument was that all the weapons of mass destruction--that turned out never to have existed--were smuggled to Syria. Syria has them, plus a nuclear program, and we better do something about it. And what the intelligence community said to Mr. Bolton was, you cannot say that--or whatever it was that he proposed to say. The facts do not sustain it. He pushed and pushed and pushed. But he told the Foreign Relations Committee he had nothing to do with that draft testimony, he was not pushing.
All we want to see is the draft texts of the speech and the material on the clearance process. I hope the Senate will stand up for itself today at 6 o'clock.
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Mr. BIDEN. Madam President, I wish to make it clear to all my colleagues, speaking for myself, that I have absolutely no intention to prevent an up-or-down vote on Mr. Bolton. The issue here is about whether the executive branch will provide information which the majority leader tried yesterday and today to get, and which I think almost every Senator here would acknowledge the institution is entitled to get. We are prepared to not even ask that the ranking member and the chairman of the Foreign Relations Committee see the information we have sought. I implore the administration to provide the information, and--speaking for myself, and I can speak for no one else, but I believe my colleagues on my side would agree with me--we are willing to vote 10 minutes after we come back into session if, in fact, they provide the information--information to which Mr. Bolton's staff had access but which they will not give to the majority leader of the Senate. There is no reason offered.
I want to make it clear, we are ready to vote the day we get back, the moment we get back. We are ready to vote immediately if they would come forward, meeting us halfway on providing the information. That is all.
I thank the Chair.