Unanimous Consent Request - Executive Calendar

Floor Speech

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Mr. CORNYN. Mr. President, I wanted to come to the floor to pose a few questions to my colleague from Kentucky. First, I would say that I admire his fortitude and his willingness to ask appropriate and reasonable questions of the administration on a matter of grave importance. This is a matter no less important than our constitutional government itself that does not give sole power to the administration to make these decisions but recognizes that the Congress is a coequal branch of government. Indeed, we have important oversight responsibilities in the Department of Justice, the Department of Defense, and there isn't a more delicate and important matter than the limitations placed on the government when it comes to dealing with our own citizens.

I would like to ask the Senator from Kentucky whether he is aware of some of these issues.

First of all, shortly after President Obama took office, the Holder Justice Department declassified and released detailed, previously top-secret legal memos attempting to explain the legal rationale for the enhanced interrogation program the Central Intelligence Agency used during the Bush administration. These memos were written by the Office of Legal Counsel at the Department of Justice, which is frequently called the lawyer for the executive branch, which issues those authoritative memos. President Obama, Eric Holder presumably decided that they would release those previously classified memos that explained the legal rationale for the enhanced interrogation program.

I would further ask the Senator if he recalls that when the Obama administration made these legal memos--highly classified legal memos--public documents, does he remember the Attorney General made some specific comments? In fact, he said: We are disclosing these memos consistent with our commitment to the rule of law. Yet today, that same Justice Department refuses to release to Members of Congress--including this Senator, the Senator from Kentucky, and other Members who have oversight responsibilities--the very same legal rationale in this case for the drone strikes the Senator from Kentucky is talking about.

So I wanted to ask, first of all, of the Senator from Kentucky whether he believes I have accurately recited the facts, but then to ask him whether he sees a double standard here on the part of the Obama-Holder Justice Department where on one hand they release these legal memos from the Office of Legal Counsel, and in this case, instead of releasing the legal rationale for the authority to make drone strikes, they issue what is, in essence, a white paper, or press release, that was linked to the news media.

I would ask the Senator from Kentucky to respond.

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Mr. CORNYN. I would ask a further question of the Senator from Kentucky. I believe the question he has asked--whether the President has the power to authorize lethal force, such as a drone strike against a U.S. citizen on U.S. soil and without trial--is a very clearly stated question and one, I believe, the Senator and the rest of the Members of Congress are entitled to a very clear answer on.

I was in the Senate Judiciary Committee hearing with the Attorney General this morning where we attempted to ask him on a number of occasions what his answer would be to this question. Yet he equivocated and he was ambiguous. He seemed to be ambiguous when a clear answer would serve him just as well, a point the Senator from Kentucky has made.

The question I have for the Senator is: Wouldn't in all likelihood the legal rationale or justification issued by the Office of Legal Counsel at the Department of Justice include a discussion which would illuminate and elucidate the answer to the Senator's question?

In other words, I would assume, without having seen that classified memo, that it would go through a rather lengthy analysis of the hypothetical situations under which these drone strikes might be used and would, in all likelihood, I think, shed some light on and clarify the answer to the Senator's question. Wouldn't that be a reasonable way to answer what is a very straightforward and reasonable question?

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Mr. CORNYN. To the Senator's last point, I am reading from a letter dated March 4. It is from the Attorney General to Senator Paul, and he says:

The question you have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no President will ever have to confront.

But he goes on to say, in response to Senator Paul's question:

It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States.

In other words, to the Senator's point, on one hand he said it was a hypothetical question, unlikely to occur, and one we hope no President would ever have to confront; and then, on the other hand, he said it is possible to imagine a scenario under which it would happen. That would appear to cast a further lack of clarity on something that should be a straightforward yes or no.

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Mr. CORNYN. It strikes me, Mr. President, that there is a clear double standard here. The Senator has asked a reasonable question, to which he has not gotten a clear answer, and one that is clearly within the purview of the Senate in our oversight capacity for the Department of Justice and as a coequal branch of government. On one hand, the Obama-Holder Justice Department not only released a white paper but released previously classified legal memos from the Office of Legal Counsel on the enhanced interrogation program, saying it was consistent with their commitment to the rule of law, but today, in response to an eminently reasonable request, is giving the Senator from Kentucky what I think can appropriately be called the Heisman, or stiff arm, and denying him access to that.

So I wanted to come to the floor and make that point and ask those questions and say again that I admire the Senator's fortitude and willingness to stand up and challenge the administration on this issue. It would be easy to satisfy the Senator's request. He has made that very clear. He is not intending to block a vote on this nomination, but he is intending to get the information he has requested, and he is entitled to it.

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