[Congressional Record Volume 159, Number 33 (Thursday, March 7, 2013)]
[Page S1240]

                           BRENNAN NOMINATION

  Mr. McCONNELL. Mr. President, yesterday the junior the Senator from 
Kentucky took to the Senate floor to exercise his rights as an 
individual Senator in pursuit of an answer from the Attorney General 
concerning the rights of U.S. citizens.
  The filibuster was extended, heartfelt, and important, and I wish to 
say a few words in reaction to that effort and, as well, on the 
nomination of John Brennan to be Director of the Central Intelligence 
  The question he raised was entirely appropriate and should have 
already been answered by the Obama administration.
  First, I wish to state for the Record and to correct any 
misimpression that yesterday's long debate was a criticism of the 
Senate's oversight of our Nation's intelligence activities. In fact, 
the Senate Select Committee on Intelligence is responsible for 
conducting vigorous oversight of our Nation's intelligence activities, 
and I want to make clear that they were not the subject of last night's 
debate. The members of that committee conduct that oversight in a 
professional, responsible manner, and selflessly serve the rest of the 
Senate in that capacity.
  Let me assure the Senate, the activities of the intelligence 
community are closely monitored and overseen by the Intelligence 
Committee, to include all counterterrorism activities.
  Most recently, the committee has conducted a serious and much-needed 
inquiry into the terrorist attack on the temporary mission facility in 
Benghazi, Libya, and has conducted a thorough review of John Brennan's 
nomination to be Director of the Central Intelligence Agency. Thanks to 
the leadership of Chairman Feinstein and Vice Chairman Chambliss, the 
committee has made significant progress in reviewing Mr. Brennan's 
record, the intelligence related to the terrorist threat in Libya, and 
in reviewing the administration's legal opinions concerning some 
overseas activities.
  Second, in reviewing Mr. Brennan's nomination, Senator Paul has asked 
a series of questions of the executive branch. Senator Paul has a right 
to ask questions of the administration, and the administration has a 
responsibility to answer in keeping with the rules established for 
oversight of intelligence activities and for protecting sensitive 
  The specific question, however, is not an intelligence-related 
question but a straightforward legal question: Does the President have 
the authority to order the use of lethal force against a U.S. citizen 
who is not a combatant on U.S. soil without due process of law?
  To his credit, John Brennan directly answered the question motivating 
Senator Paul's filibuster: The Central Intelligence Agency does not 
conduct lethal operations inside the United States, nor does it have 
the authority to do so. What is befuddling is why the Attorney General 
has not directly and clearly answered the question.
  The U.S. military no more has the right to kill a U.S. citizen on 
U.S. soil who is not a combatant with an armed unmanned aerial vehicle 
than it does with an M-16. The technology is beside the point. It 
simply doesn't have that right, and the administration should simply 
answer the question. There is no reason we cannot get this question 
answered today. And we should get the question answered today. Frankly, 
it should have been answered a long time ago.
  Last, during Senator Paul's filibuster, I noted that I cannot support 
John Brennan's confirmation. During January of 2009, the President 
issued a series of Executive orders which, in my judgment, weakened the 
ability of our intelligence community to find, capture, detain, and 
interrogate terrorists. As President Obama's senior adviser on 
counterterrorism, Mr. Brennan has been a fierce defender of the 
administration's approach to counterterrorism as articulated by the 
Executive orders I just referred to. He has been a loyal, dogged 
defender of the administration's policies, policies with which I 
seriously disagree. My greatest concern is that the Director of Central 
Intelligence must be entirely independent of partisan politics in 
developing objective analysis and advice that he gives to the 
President. After 4 years of working within the White House, confronting 
difficult policy matters on a daily basis, and having attempted to 
defend the administration's policies--sometimes publicly, sometimes to 
the media, and occasionally to the Senate--I question whether Mr. 
Brennan can detach himself from those experiences.

  For that reason I will oppose his nomination.
  I yield the floor.


[Congressional Record Volume 159, Number 33 (Thursday, March 7, 2013)]
[Pages S1241-S1249]

                           EXECUTIVE SESSION


                          INTELLIGENCE AGENCY

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session and resume consideration of 
the following nomination, which the clerk will report.
  The bill clerk read the nomination of John Owen Brennan, of Virginia, 
to be Director of the Central Intelligence Agency.
  Mr. McCONNELL. Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. THUNE. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


  Mr. McCAIN. Mr. President, I ask unanimous consent to address the 
Senate as if in morning business and ask to be joined in colloquy with 
the Senator from South Carolina, Senator Graham.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 

                           The Drone Program

  Mr. McCAIN. Mr. President, I wish to quote from this morning's 
editorial in the Wall Street Journal entitled ``Rand Paul's Drone 
Rant.'' I wish to read for the edification of my colleagues the 
editorial which was in the Wall Street Journal, a credible media 
outlet, this morning.
  The Wall Street Journal reads:

       Give Rand Paul credit for theatrical timing. As the storm 
     descended on Washington, the Kentucky Republican's old-
     fashioned filibuster Wednesday filled the attention void on 
     Twitter and cable TV. If only his reasoning matched the 
       Shortly before noon, Senator Paul began talking filibuster 
     against John Brennan's nomination to lead the CIA. The tactic 
     is rarely used in the Senate and was last seen in 2010. But 
     Senator Paul said an ``alarm'' had to be sounded about the 
     threat to Americans from their own government. He promised to 
     speak ``until the President says, no, he will not kill you at 
     a cafe.'' He meant by a military drone. He's apparently 
     serious, though his argument isn't.
       Senator Paul had written the White House to inquire about 
     the possibility of a drone strike against a U.S. citizen on 
     American soil. Attorney General Eric Holder replied that the 
     U.S. hasn't and ``has no intention'' to bomb any specific 
     territory. Drones are limited to the remotest area of 
     conflict zones like Pakistan and Yemen. But as a hypothetical 
     constitutional matter, Mr. Holder acknowledged the President 
     can authorize the use of lethal military force within U.S. 
       This shocked Senator Paul, who invoked the Constitution and 
     Miranda rights. Under current U.S. policy, Mr. Paul mused on 
     the floor, Jane Fonda could have been legally killed by a 
     Hellfire missile during her tour of Communist Hanoi in 1972. 
     A group of noncombatants sitting in public view in Houston 
     may soon be pulverized, he declared.
       Calm down, Senator. Mr. Holder is right, even if he doesn't 
     explain the law very well. The U.S. Government cannot 
     randomly target American citizens on U.S. soil or anywhere 

  I repeat that: The U.S. Government cannot randomly target American 
citizens on U.S. soil or anywhere else.

       What it can do under the laws of war is target an ``enemy 
     combatant'' anywhere at any time, including on U.S. soil. 
     This includes a U.S. citizen who is also an enemy combatant. 
     The President can designate such a combatant if he belongs to 
     an entity--a government, say, or a terrorist network like al-
     Qaida--that has taken up arms against the United States as 
     part of an internationally recognized armed conflict. That 
     does not include Hanoi Jane.
       Such a conflict exists between the U.S. and al-Qaida, so 
     Mr. Holder is right that the U.S. could have targeted (say) 
     U.S. citizen Anwar al-Awlaki had he continued to live in 
     Virginia. The U.S. killed him in Yemen before he could kill 
     more Americans. But under the law al-Awlaki was no different 
     than the Nazis who came ashore on Long Island in World War 
     II, were captured and executed.
       The country needs more Senators who care about liberty, but 
     if Mr. Paul wants to be taken seriously, he needs to do more 
     than pull political stunts that fire up impressionable 
     libertarian kids in their college dorms. He needs to know 
     what he's talking about.

  I watched some of that ``debate'' yesterday. I saw colleagues of mine 
who know better come to the floor and voice this same concern, which is 
totally unfounded. I must say that the use of Jane Fonda's name does 
evoke certain memories with me, and I must say she is not my favorite 
American, but I also believe that as odious as it was, Ms. Fonda acted 
within her constitutional rights. To somehow say that someone who 
disagrees with American policy, and even may demonstrate against it, is 
somehow a member of an organization which makes that individual an 
enemy combatant is simply false. It is simply false.
  I believe we need to visit this whole issue of the use of drones--who 
uses them, whether the CIA should become their own Air Force, what the 
oversight is. The legal and political foundation for this kind of 
conflict needs to be reviewed.
  Relating to this, let me quote from an article by Jack Goldsmith that 
was in the Washington Post on February 5, 2013, entitled: ``U.S. needs 
a rulebook for secret warfare.''

       The legal foundation rests mostly on laws designed for 
     another task that government lawyers have interpreted, 
     without public scrutiny, to meet new challenges. Outside the 
     surveillance context, Congress as a body has not debated or 
     approved the means or ends of secret warfare. Because secret 
     surveillance and targeted strikes, rather than U.S. military 
     detention, are central to the new warfare, there are no 
     viable plaintiffs to test the government's authorities in 
     court. In short, executive-branch decisions since 2001 have 
     led the Nation to a new type of war against new enemies on a 
     new battlefield without enough focused national debate, 
     deliberate congressional approval or real judicial review.
       What the government needs is a new framework statute--akin 
     to the National Security Act of 1947, or the series of 
     intelligence reforms made after Watergate, or even the 2001 
     authorization of force--to define the scope of the new war, 
     the authorities and limitations on presidential power, and 
     forms of review of the President's actions.

  I don't think we should have any doubt there are people both within 
the United States of America and outside it who are members of 
terrorist organizations and who want to repeat 9/11. All of us thank 
God there has not been a repeat of 9/11. Most of the experts I know 
will say there has been a certain element of luck--a small element but 
still an element of luck, such as the Underwear Bomber and others--that 
has prevented a devastating attack on the United States. But to somehow 
allege or infer the President of the United States is going to kill 
somebody such as Jane Fonda or someone who disagrees with the 
government's policies is a stretch of imagination which is, frankly, 
  I don't disagree that we need more debate, more discussion, and, 
frankly, probably more legislation to make sure America does protect 
the rights of all our citizens and to make sure, at the same time, if 
someone is an enemy combatant, that enemy combatant has nowhere to 
hide--not in a cafe, not anywhere. But to say that somehow, even though 
we try to take that person, that we would hit them in a cafe with a 
Hellfire missile--well, first of all, there are no drones with Hellfire 
missiles anywhere near. They are over in places such as Yemen and 
Afghanistan and other places around the world.
  We have done a disservice to a lot of Americans by making them 
believe that somehow they are in danger from their government. They are 
not. But we are in danger--we are in danger--from a dedicated, 
longstanding, easily replaceable leadership enemy that is hellbent on 
our destruction, and this leads us to having to do things perhaps we 
haven't had to do in other more conventional wars.

  I don't believe Anwar al-Awlaki should have been protected anywhere 
in the world, but that doesn't mean they are going to take him out with 
a Hellfire missile. It means we are going to use our best intelligence 
to apprehend and debrief these people so we can gain the necessary 
intelligence to bring them all to justice.
  All I can say is, I don't think what happened yesterday is helpful 
for the American people. We need a discussion, as I said, about exactly 
how we are going to address this new form of almost interminable 
warfare, which is very different from anything we have ever faced in 
the past, but somehow to allege the United States of America, our 
government, would drop a drone Hellfire missile on Jane Fonda, that 
brings the conversation from a serious discussion about U.S. policy to 
the realm of the ridiculous.
  I would also like to add an additional note. About 42 percent, as I 
am told, of the Members of this Senate are here for 6 years or less. 
Every time a majority party is in power, they become frustrated with 
the exercise of the minority and their rights in the Senate. Back some 
years ago, when the Republicans--this side of aisle--were in the 
majority, we were going to eliminate the ability to call for 60 votes 
on the confirmation of judges. We were able to put that aside. There 
was another effort at the beginning of this Senate to do away with 60 
votes and go back down to 51, which, in my view, would have destroyed 
the Senate.
  A lot of us worked very hard--a group of us--for a long time to come 
up with some compromises that would allow the Senate to move more 
rapidly and efficiently but at the same time preserving the 60-vote 
majority requirement on some pieces of legislation. What we saw 
yesterday is going to give ammunition to those critics who say the 
rules of the Senate are being abused. I hope my colleagues on this side 
of the aisle will take that into consideration.

[[Page S1244]]

  I note the presence of the Senator from South Carolina. The Senator 
from South Carolina, as many of our colleagues know, is a lawyer. He 
has been a military lawyer in the Air Force Reserve for over 20 years. 
If there is anyone in the Senate who knows about this issue from a 
legal and technical standpoint, it is my colleague from South Carolina.
  I ask my colleague from South Carolina, is there any way the 
President of the United States could just randomly attack someone, with 
a drone or a Hellfire missile, without that person being designated an 
enemy combatant?
  And I don't think, as much as I hate to say it, that applies to Jane 
  Mr. GRAHAM. I thank my colleague. That is a very good question.
  This has been a very lively debate. Senator Paul has a lot of 
passion, and that is a great thing. This is an important issue. We 
should be talking about it, and I welcome a reasoned discussion. But to 
my Republican colleagues, I don't remember any of you coming down here 
suggesting that President Bush was going to kill anybody with a drone--
I don't even remember the harshest critics of President Bush from the 
Democratic side. They had a drone program back then, so what is it all 
of a sudden about this drone program that has gotten every Republican 
so spun up? What are we up to here?
  I think President Obama has, in many ways, been a very failed 
President. I think his executive orders overstep, I think he has 
intruded into the congressional arena by Executive order, I think 
ObamaCare is a nightmare, and there are 1,000 examples of a failed 
Presidency, but there is also some agreement. People are astonished, I 
say to the Senator, that President Obama is doing many of the things 
President Bush did. I am not astonished. I congratulate him for having 
the good judgment to understand we are at war.
  To my party, I am a bit disappointed that you no longer apparently 
think we are at war. Senator Paul, he is a man unto himself. He has a 
view I don't think is a Republican view. I think it is a legitimately 
held libertarian view.
  Remember, Senator Paul was the one Senator who voted against a 
resolution that said the policy of the United States will not be to 
contain a nuclear-capable Iran. It was 90 to 1. To his credit, he felt 
that would be provocative and it may lead to a military conflict. He 
would rather have a nuclear-capable Iran than use military force, and 
he said so--to his credit. Ninety of us thought, well, we would like 
not to have a military conflict with Iran, but we are not going to 
contain a nuclear-capable Iran because it is impossible.
  What would happen is that if Iran got a nuclear weapon, the Sunni 
Arab States would want a nuclear weapon, and most of us believe they 
would share the technology with the terrorists, who would wind up 
attacking Israel and the United States. It is not so much that I fear a 
missile coming from Iran; I fear, if they got a nuclear weapon or 
nuclear technology, they would give it to some terrorist organization--
like they gave IEDs to the Shia militia in Iraq to kill Americans--and 
they would wreak havoc on the world.
  So we don't believe in letting them have it and trying to contain 
them because we believe their association with terrorism is too long 
and too deep, that it is too dangerous for Israel and too dangerous for 
us. But Senator Paul, to his credit, was OK with that; I just disagree 
with him.
  As to what he is saying about the drone program, he has come our way 
some, and I appreciate that. Before, he had some doubt in his mind as 
to whether we should have killed Anwar al-Awlaki in Yemen--an American 
citizen who had collaborated with al-Qaida and was actually one of the 
military leaders of al-Qaida in Yemen, who had radicalized Major Hasan, 
and who had been involved in planning terrorist attacks against U.S. 
forces throughout the region.
  President Obama was informed through the military intelligence 
community channels of Anwar al-Awlaki's existence, all the videos he 
made supporting Jihad and killing Americans, and he, as Commander in 
Chief, designated this person as an enemy combatant.
  Mr. President, you did what you had the authority to do, and I 
congratulate you in making that informed decision.
  And the process to get on this target list is very rigorous--I think 
sometimes almost too rigorous.
  But now, apparently, Senator Paul says it is OK to kill him because 
we have a photo of him with an RPG on his shoulder. He has moved the 
ball. He is saying now that he wants this President to tell him he will 
not use a drone to kill an American citizen sitting in a cafe having a 
cup of coffee who is not a combatant. I find the question offensive.
  As much as I disagree with President Obama, as much as I support past 
Presidents, I do not believe that question deserves an answer because, 
as Senator McCain said, this President is not going to use a drone 
against a noncombatant sitting in a cafe anywhere in the United States, 
nor will future Presidents because if they do, they will have committed 
an act of murder. Noncombatants, under the law of war, are protected, 
not subject to being killed randomly.
  So to suggest that the President won't answer that question somehow 
legitimizes that the drone program is going to result in being used 
against anybody in this room having a cup of coffee cheapens the debate 
and is something not worthy of the time it takes to answer.
  Mr. McCAIN. May I ask my colleague a question especially on that 
  A lot of our friends--particularly Senator Paul and others--pride 
themselves on their strict adherence to the Constitution and the 
decisions of the U.S. Supreme Court.
  Isn't it true that as a result of an attack on Long Island during 
World War II, an American citizen--among others--was captured and hung 
on American soil, and the U.S. Supreme Court upheld that execution 
because that individual was an enemy combatant? Does that establish 
without a doubt the fact that these are enemy combatants, and no matter 
where they are, they are subject to the same form of justice as the 
terrorists in World War II were?
  Mr. GRAHAM. It has been a long-held concept in American jurisprudence 
that when an American citizen sides with the enemies of our Nation, 
they can be captured, held, and treated as an enemy combatant; they 
have committed an act of war against our country, not a common crime.
  In World War II, German saboteurs landed on Long Island. They had 
been planning and training in Germany to blow up a lot of 
infrastructure--and some of it was in Chicago. So they had this fairly 
elaborate plan to attack us. They came out of a submarine. They landed 
on Long Island. And the plan was to have American citizens sympathetic 
to the Nazi cause--of German origin, most of them--meet them and 
provide them shelter and comfort. Well, the FBI back then broke up that 
plot, and they were arrested. The American citizens were tried by 
military commission, they were found guilty, and a couple of them were 
  Now, there has been a case in the war on terror where an American 
citizen was captured in Afghanistan. Our Supreme Court reaffirmed the 
proposition that we can hold one of our own as an enemy combatant when 
they align themselves with the forces against this country.
  This Congress, right after the September 11 attacks, designated 
authorization to use military force against al-Qaida and affiliated 
groups. So the Congress has given every President since 9/11 the 
authority to use military force against al-Qaida and affiliated groups. 
And American citizens such as Anwar al-Awlaki and that guy Hamdi who 
was captured in Afghanistan have been treated as enemy combatants, and 
if President Obama does that, he is doing nothing new or novel.
  What would be novel is for us to say that if a terrorist cell came to 
the United States, if an al-Qaida cell was operating in the United 
States, that is a common crime and the law of war doesn't apply. It 
would be the most perverse situation in the world for the Congress to 
say that the United States itself is a terrorist safe haven when it 
comes to legal rights; that we can blow you up with a drone overseas, 
we can capture you in Afghanistan and hold you under the law of war, 
but if there is a terrorist cell operating in the

[[Page S1245]]

United States, somehow you are a common criminal and we will read you 
your Miranda Rights.
  I just have this one question to get Senator McCain's thoughts. I 
hope we realize that, hypothetically, there are patriot missile 
batteries all over Washington that could interdict an airplane coming 
to attack this Capitol or the White House or other vital government 
  I hope the Senator understands--Senator McCain is a fighter pilot--
that there are F-15s and F-16s on 3-minute to 5-minute alert all up and 
down the east coast. If there is a vessel coming into the United States 
or a plane has been hijacked or a ship has been hijacked that is loaded 
with munitions or the threat is real and they have taken over a craft 
and are about to attack us, I hope all of us would agree that using 
military force in that situation is not only lawful under the 
authorization to use military force, it is within the inherent 
authority of the Commander in Chief to protect us all.
  Mr. McCAIN. And should not be construed as an authority to kill 
somebody in a cafe.

  Mr. GRAHAM. It should be construed as a reasonable ability to defend 
the homeland against a real threat. And the question is, Do you feel 
threatened anymore? I do. I think al-Qaida is alive and well.
  And to all those who have been fighting this war for a very long 
time, multiple tours in Iraq and Afghanistan, who have tried to keep 
the war over there so it doesn't come here, to the failed plots that 
have been broken up by the CIA and the FBI, God bless you. We have to 
be right every time; they only have to be right once.
  If you think the homeland is not a desire of al-Qaida, it is 
absolutely on the top of their list. They are recruiting American 
citizens to their cause, and unfortunately a few will probably go over 
to their side. Thank God it will be just a few.
  But to take this debate into the absurd is what I object to. We can 
have reasonable disagreements about, the regulatory nature of the drone 
program should be under the Department of Defense and what kind of 
oversight Congress should have. I think that is a really good 
discussion, and I would like to work with Senator Durbin and others to 
craft--the Detainee Treatment Act was where Congress got involved with 
the executive branch to come up with a way to better handle the 
detainee issue.
  But the one thing I have been consistent about is I believe there is 
1 Commander in Chief, not 535, and I believe this Commander in Chief 
and all future Commanders in Chief are unique in our Constitution and 
have an indispensable role to play when it comes to protecting the 
homeland. If we have 535 commanders in chief, then we are going to be 
less safe. And if you turn over military decisions to courts, then I 
think you have done the ultimate harm to our Nation--you have 
criminalized the war. And I don't think our judiciary wants that.
  So as much as I disagree with President Obama, I think you have been 
responsible in the use of the drone program overseas. I think you have 
been thorough in your analysis. I would like to make it more 
transparent. I would like to have more oversight.
  As to the accusation being leveled against you that if you don't 
somehow answer this question, we are to assume you are going to use a 
drone--or the administration or future administrations would--to kill 
somebody who is a noncombatant--no intelligence to suggest there are 
enemy combatants sitting in a cafe hit by a Hellfire missile--I think 
it is really off base.
  I have this one final thought. If there is an al-Qaida operative U.S. 
citizen who is helping the al-Qaida cause in a cafe in the United 
States, we don't want to blow up the cafe. We want to go in there and 
grab the person for intelligence purposes.
  The reason we are using drones in Afghanistan and Pakistan is we 
don't have any military presence along the tribal border. The reason we 
are having to use drones is we can't capture people. The preference is 
to capture them, not to kill them. But there are certain areas where 
they operate that the only way we can get to them is through a drone 
  Mr. McCAIN. And may I say to my friend that there are scenarios where 
there could be an extreme situation where there is a direct threat. We 
could draw many scenarios--a bomb-laden, explosive-laden vehicle headed 
for a nuclear powerplant--where the President of the United States may 
have to use any asset the President has in order to prevent an 
impending catastrophic attack on the United States of America. And that 
is within the realm of possible scenarios.
  So to somehow say that we would kill people in cafes and therefore 
drone strikes should never be used under any circumstances I believe is 
a distortion of the realities of the threats we face.
  As we are speaking, there are people who are plotting to attack the 
United States of America. We know that. At the same time, we are ready, 
as the Senator said, to discuss, debate, and frame legislation that 
brings us up to date with the new kind of war we are in. But to somehow 
have a debate and a discussion that we would have killed Jane Fonda 
does, in my view, a disservice to the debate and discussion that needs 
to be conducted.
  Mr. GRAHAM. That is a very good point.
  I look forward to a discussion about how to deal with a drone 
program. It is just a tactical weapon. It is an air platform without a 
  Now, if there is a truck going toward a military base or nuclear 
powerplant, we have a lot of assets to interdict that truck. Maybe you 
don't need the F-16. But I guarantee you, if there was a hijacked 
aircraft coming to the Capitol, the President of the United States 
would be well within his rights to order the Patriot missile battery to 
shoot that plane down or have an F-16 shoot it down. And we are ready 
for that, by the way.
  I would just suggest one thing. The number of Americans killed in the 
United States by drones is zero. The number of Americans killed in the 
United States by al-Qaida is 2,958. The reason it is not 2 million, 20 
million, or 200 million is because they can't get the weapons to kill 
that many of us. The only reason it is 2,958 is because their weapons 
of choice couldn't kill more. Their next weapon of choice is not going 
to be a hijacked airplane up there; it is going to be some nuclear 
technology or a chemical weapon, a weapon of mass destruction. That is 
why we have to be on our guard.
  When you capture someone who is associated with al-Qaida, the best 
thing is to hold them for interrogation purposes. We found bin Laden 
not through torture, we found bin Laden through a decade of putting the 
puzzle together.
  Senator Durbin and Senator McCain, both are very effective advocates 
that we have to live within our values and that when we capture 
somebody, we are going to hold them under the law of war. We are going 
to explore the intelligence, but we are going to do it within the laws 
that we signed up to, such as the Geneva Conventions, the Convention 
Against Torture.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. GRAHAM. Absolutely.
  Mr. DURBIN. I very briefly thank my colleagues on the other side of 
the aisle. It was 12 hours ago when I was standing right here, a lonely 
voice among others who were discussing this issue, bringing up the 
points the Senator raises. The first is the drone is a weapon. There 
are many weapons that can deliver lethal force. We should view this as 
an issue of lethal force, not an issue of drones per se--although it 
may raise some particular questions in application. It is largely a 
question of lethal force.
  The second question has been raised by both Senators. What if the 
fourth airplane had not been brought down by the passengers? What if 
that plane were headed for this Capitol Building and all other planes 
had been landed across America under orders of our government and we 
knew this plane was the fourth plane in control of the terrorists, what 
authority did President Bush have as Commander in Chief at that moment?
  I don't think anyone would question he had the authority to use 
lethal force to stop the terrorists from using that plane as a fourth 
weapon against the United States.
  There was no debate last night about that particular point. This 
notion--and I am glad this point has been raised--that we are somehow 
going to use drones to kill people sipping coffee in

[[Page S1246]]

cafes is ludicrous. It is absurd. It goes beyond the obvious. We need 
those people. Bringing those people into our control gives us more 
  Second, for goodness' sake, the collateral damage of something that 
brutish would be awful. So I thank the Senator for putting it in 
  I think Attorney General Holder could have been more artful in his 
language yesterday, but at the end of the day, even Senator Cruz 
acknowledged he said it would be unconstitutional to use this kind of 
lethal force if there weren't an imminent threat pending against the 
United States.
  Mr. McCAIN. If I may say real quickly, an imminent threat.
  MR. DURBIN. Yes.
  Mr. McCAIN. We may have to do a little better job of defining that, 
but to say imminent threat would then translate into killing somebody 
in a cafe is not a mature debate or discussion.
  Mr. GRAHAM. If I can add, let me tell the Senator about imminent 
threat and military law. In Iraq we had disabled terrorist insurgents. 
There was a big debate in the Marine Corps because under military law 
when a lawful combatant, a person in uniform, has been disabled and it 
does not present an imminent threat, we don't have the ability to shoot 
them. OK.
  The terrorists in Iraq put IEDs on wounded belligerents, unlawful 
enemy combatants. So the Marine Corps wrestled very long and hard with 
the rules of engagement. If you come upon somebody who is wounded, 
apparently was disabled, under what circumstances could you use lethal 
force because they may be booby-trapped.
  To the Marine Corps' credit, they came up with a balance between who 
we are--we just don't shoot even our enemies who are helpless and 
wounded--and the ability for force protection.
  Here is what I would say about the circumstance in question. The 
process of determining who an enemy combatant is has always been a 
military process. It is not a congressional debate. Our committees 
don't get a list of names and we vote on whether we think they are 
enemy combatants. Courts don't have trials over who is an enemy 
combatant. If there is a question about enemy combatant status under 
the Geneva Conventions, you are entitled to a single hearing officer 
and that is all. In World War II, there were a lot of people captured 
in German uniform who claimed they were made to wear the uniform by the 
Germans. All of them had a hearing on the battlefield by a single 
officer. It has been long held by military law it is a military 
decision, not judicial decision or legislative decision, to determine 
the enemy of the nation.
  So President Obama has taken this far beyond what was envisioned. 
This administration has a very elaborate process to determine who 
should be determined to be an enemy combatant. I think it is thorough. 
I think it has many checks and balances. As much as I disagree with 
this President on many issues, I would never dream of taking that right 
away from him because he is the same person, the Commander in Chief, 
whoever he or she may be in the future, that we give the authority to 
order American citizens in battle where they may die. He has the 
authority to pick up a phone, Senator McCain, and say you will launch 
today, and you may not come back.
  I cannot imagine a Congress who is OK with the authority to order an 
American citizen in battle--we don't want to take that away from him, I 
hope--that is uncomfortable with the same American determining who the 
enemy we face may be.
  As to American citizens, here is the law. If you collaborate with al-
Qaida or their affiliates and you are engaged in helping the enemy, you 
are subject to being captured or killed under the law of war. What is 
an imminent threat? The day that you associate yourself with al-Qaida 
and become part of their team, everywhere you go and everything you do 
presents a threat to the country. So why do we shoot people walking 
down the road in Pakistan? They don't have a weapon. There is no 
military person in front of them who is threatened. The logic is that 
once you join al-Qaida, you are a de facto imminent threat because the 
organization you are supporting is a threat.
  For someone to suggest we have to let them walk down the road, go 
pick up a gun and head toward our soldiers before you can shoot them is 
not very healthy for the soldier they are trying to kill and it would 
be a total distortion of law as it exists. Back here at home, and I 
will conclude----
  Mr. DURBIN. If the Senator will allow just one last comment and I 
thank him for the statement on the floor--from both my colleagues. The 
Judiciary Committee's Subcommittee on the Constitution is going to have 
a hearing, it is already scheduled, on this issue of drones. There are 
legitimate questions to be raised and answered.
  Mr. GRAHAM. There are.
  MR. DURBIN. I might add that in my conversations with the President 
he welcomes this. He has invited us to come up with a legal 
architecture to make certain it is consistent with existing precedent 
and military law and other court cases as well as our Constitution. I 
think that is a healthy environment for us to have this hearing and 
invite all points of view and try to come up with a reasonable 

  Mr. GRAHAM. I could not welcome that more. It worked with the 
Detainee Treatment Act, it worked with the Military Commissions Act. I 
think it is the right way to go.
  Mr. McCAIN. Madam President, I think that concludes our discussion. I 
would agree with the Senator from Illinois and my colleague from South 
Carolina that we need hearings. We need to discuss how we conduct 
this--the United States, in what appears to be, for all intents and 
purposes, an interminable conflict that we are in and we have to adjust 
to it. But that conversation should not be talking about drones killing 
Jane Fonda and people in cafes. It should be all about what authority 
and what checks and balances should exist in order to make it a most 
effective ability to combat an enemy that we know will be with us for a 
long time.
  Mr. GRAHAM. If I could just have 2 minutes of wrapup, I will. To my 
fellow citizens, the chance of you being killed by a drone--because you 
go to a tea party rally or a moveon.org rally or any other political 
rally or you are just chatting on the Internet quietly at home--by your 
government through the use of a drone is zero, under this 
administration and future administrations. If that day ever happened, 
the President of the United States or whomever ordered such an attack 
would have committed murder and would be tried. I don't worry about 
  Here is what I worry about; that al-Qaida, who has killed 2,958 of 
us, is going to add to the total if we let our guard down. I will do 
everything in my power to protect this President, whom I disagree with 
a lot, and future Presidents from having an ill-informed Congress take 
over the legitimate authority under the Constitution and the laws of 
this land to be the Commander in Chief on behalf of all of us.
  As to any American citizen thinking about joining with al-Qaida at 
home or abroad: You better think twice because here is what is going to 
come your way. If we can capture you, we will. You will be 
interrogated. You will go before a Federal judge and one day you will 
go before a court and you will have a lot of legal rights, but if you 
are found guilty, woe be unto you.
  Here is another possibility. If you join with these thugs and these 
nuts to attack your homeland and if we have no ability to capture you, 
we will kill you and we will do it because you made us. The process of 
determining whether you have joined al-Qaida is not going to be some 
Federal court trial. It is not going to be a committee meeting in the 
Congress. Because if we put those conditions on our ability to defend 
ourselves, we cannot act in real time.
  Bottom line: I think we are at war. I think we are at war with an 
enemy who would kill us all if he could, and every war America has been 
in we have recognized the difference between fighting crime and 
fighting a war. If you believe, as I do, we are at war, those who aid 
our enemies are not going to be treated as if they robbed a liquor 
store. They are going to be treated as the military threat they are.
  Mr. McCAIN. Madam President, I thank my colleague and also thank the 
Senator from Illinois for his engagement. In closing, I would like to 
congratulate my friend from South Carolina for his best behavior last 
night at dinner. He was on his best manners and everyone was very 

[[Page S1247]]

  I yield the floor.
  The PRESIDING OFFICER (Ms. Baldwin). The Senator from Colorado.
  Mr. UDALL of Colorado. Madam President, I rise in support of the 
nomination of John Brennan to be the next director of the Central 
Intelligence Agency. Mr. Brennan earned a bipartisan vote of 12-3 in 
the Senate Intelligence Committee, on which I serve. He is clearly 
qualified to lead the CIA and deserved that bipartisan vote in 
committee. And he deserves confirmation by the full Senate today.
  I say that in spite of the difficulties my colleagues and I 
encountered in extracting information and commitments throughout the 
confirmation process. Our concerns were less about John Brennan himself 
and more about the role that the next CIA director needs to play. And 
we believe that the information and commitments we finally secured from 
him and from the White House are extraordinarily relevant to the role 
of any CIA director.
  Alongside several of my colleagues, I fought to enhance transparency 
and preserve our system of checks and balances. The American people 
have the expectation that their government is upholding the principles 
of oversight and accountability.
  Consistent with our national security, the presumption of 
transparency should be the rule, not the exception. The government 
should make as much information available to the American public as 
possible, while protecting national security.
  We have seen during previous administrations the problems that can 
arise when even the intelligence committees are left out of the loop: 
warrantless wiretapping, extraordinary detention and torture. Ben 
Franklin put it well when he said: ``Those who would sacrifice liberty 
for security deserve neither.''
  Congressional oversight is critical to ensure that we sacrifice 
neither, as we pursue a smart, but tough, national security strategy, 
especially in this age of new forms of warfare.
  This was true over the past several months, as I joined Senator Wyden 
and others in pushing hard for access to the legal justification used 
by the executive branch to lethally target Americans using drones. The 
fact that we had to push so hard, I am sorry to say, no doubt erodes 
the government's credibility with the American people. But it also 
gives us an opportunity--and a good reason--to maintain and strengthen 
our system of checks and balances.
  I am glad the Administration met our requests and is giving members 
of the Intelligence Committee access to legal opinions on targeting 
American citizens. This is an important first step. But there is more 
to be done for Congress to understand the limits on the drone program.
  Madam President, our government has an obligation to the American 
people to face its mistakes transparently, help the public understand 
the nature of those mistakes, and then correct them. In this regard, 
the next Director of the CIA has an important task.
  The specific mistakes I am referring to are outlined in the 
Intelligence Committee's 6,000-page report on the CIA's deeply flawed 
detention and interrogation program. Acknowledging the flaws of this 
program is essential for the CIA's long-term institutional integrity as 
well as the legitimacy of ongoing sensitive programs.
  I know the Presiding Officer will take a keen interest in this as she 
is a strong supporter of civil liberties and protecting our freedoms. 
That is why I will hold Mr. Brennan to the promise he made to me at his 
confirmation hearing; that is, to correct inaccurate information in the 
public record on the CIA's detention and interrogation program. That is 
why I will continue to urge him to ensure that the Senate Intelligence 
Committee's report on this flawed program is declassified and made 
  In the committee's confirmation hearing, Mr. Brennan promised to be 
an advocate of ensuring the committee has what it needs to do its 
functions. I believe Mr. Brennan is that advocate.
  I look forward to working with him and the administration with my 
goal of protecting our national security while also safeguarding 
America's constitutional freedoms and determining the limits of 
executive branch powers in this new age of warfare.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. CARDIN. Madam President, I ask unanimous consent to speak as if 
in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.



[Congressional Record Volume 159, Number 33 (Thursday, March 7, 2013)]
[Pages S1249-S1256]

                           EXECUTIVE SESSION


                     INTELLIGENCE AGENCY--Continued

  The PRESIDING OFFICER. The time until 3 p.m. is equally divided.
  The Senator from California.
  Mrs. FEINSTEIN. Madam President, it is my understanding that this is 
an appropriate time for me, as chairman of the Intelligence Committee, 
to speak on the nomination of John Brennan for Director of the CIA.
  The PRESIDING OFFICER. The Senator is recognized.
  Mrs. FEINSTEIN. Madam President, as a kind of predicate to this 
nomination, we have heard a 13-hour filibuster from Senators who desire 
an answer to the question that was proffered by Senator Paul. I have 
that answer. It is dated March 7. It is a letter from the Attorney 
General Eric Holder. It is to Senator Rand Paul. This is what it says:
  It has come to my attention that you have asked an additional 
question. ``Does the President have the authority to use a weaponized 
drone to kill an American not engaged in combat on American soil?''

       The answer to that question is no.

  I ask unanimous consent that letter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                         The Attorney General,

                                    Washington, DC, March 7, 2013.
     Hon. Rand Paul,
     U.S. Senate,
     Washington, DC.
       Dear Senator Paul: It has come to my attention that you 
     have now asked an additional question: ``Does the President 
     have the authority to use a weaponized drone to kill an 
     American not engaged in combat on American soil?'' The answer 
     to that question is no.
                                               Eric H. Holder, Jr.

  Mrs. FEINSTEIN. So, hopefully, the need to continue any of this will 
be vitiated, and we will be able to proceed with a vote. It is my 
understanding that I have a half hour on behalf of the majority of the 
Intelligence Committee to make a statement in support of Mr. Brennan.
  Mr. Brennan's nomination was reported out of the Senate Intelligence 
Committee on Tuesday by a strong bipartisan vote of 12 to 3. I look 
forward to an equally strong vote by the Senate later today.
  Let me begin with his qualifications, which are impressive and 
unquestioned. John Brennan began his career as an intelligence officer 
with the CIA in 1980. He worked as a CIA officer for 25 years in a 
variety of capacities, including as an analyst in the Office of Near 
Eastern and South Asian Analysis and as a top analyst in the CIA 
Counterterrorism Center from 1990 to 1992, both areas that remain very 
much a focus of the CIA today.
  He was the daily intelligence briefer at the White House and served 
as George Tenet's executive assistant. Despite his background as an 
analyst, Mr. Brennan was selected to serve as Chief of Station, a post 
generally filled by a CIA operations officer. He served in Saudi 
Arabia, one of the most important and complex assignments, and then 
returned to Washington as then-DCI Tenet's Chief of Staff and the 
Deputy Executive Director of the CIA.
  Mr. Brennan then served as the head of the Terrorist Threat 
Interrogation Center, the predecessor organization to the National 
Counterterrorism Center (NCTC), where he also served as the Interim 
Director. After a short stint in the private sector, he returned to be 
President Obama's top counterterrorism and homeland security adviser. 
In that capacity, he has been involved in handling every major national 
and homeland security issue we have faced since 2009.
  He has been involved in counterterrorism successes, including this 
administration's efforts to bring Osama bin Laden to justice and at 
least 105 arrests of terrorist operatives and supporters in the United 
States since 2009. He also helped implement the lessons learned from 
Umar Farouq Abdul-

[[Page S1250]]

mutallab's attempted bombing of a jet over Detroit, the loss of CIA 
personnel in Khowst, Afghanistan, and the terrorist attacks in 
Benghazi, Libya. So he is qualified.
  For the past 4 years, Mr. Brennan has been among the President's 
closest advisers. As Director of the CIA, he would lead this Nation's 
largest intelligence agency and will continue to provide information 
and advice on intelligence matters to the President, his national 
security team, and this Congress.
  Throughout the past three decades, Mr. Brennan has observed every 
aspect of intelligence from analysis to collection to covert action, 
from inside government and the private sector, and from both the 
intelligence and policy sides.
  I actually do not believe there is anyone who is more qualified to 
take over the CIA than John Brennan. So he cannot be denied this post, 
in my view, on the basis of qualification. I think even those who 
oppose his nomination recognize there is no question but that he is 
well qualified. From the time he walks into the CIA, he will be ready 
to go, up to speed on the numerous threats and challenges this country 
faces all over the globe.
  Let me speak for a moment why that is important and why it is so 
important that we move to confirm John Brennan. As the Director of the 
CIA, he leads the most diverse and clandestine intelligence agency, the 
only agency to conduct covert actions, the largest all-source analytic 
workforce. And he sits in the principal committee meetings where the 
most sensitive national security decisions are made.
  The past two CIA Directors, both Mr. Panetta and General Petraeus, 
have played significant roles in keeping the Senate and House 
Intelligence Committees informed of sensitive operations. They have 
provided an independent assessment of hot spots and strategic threats 
around the world. John Brennan will do the same.
  By its nature, the CIA is among the parts of our government that 
receive the least oversight. Its activities are largely shielded from 
the view of the press, the public, the Government Accountability 
Office, and, indeed, most Members of Congress. The Director of the CIA 
must be both unimpeachable in his--or, hopefully, one day her--
integrity, while guiding a workforce of people who operate in the 
shadows for the benefit of our Nation. This is important.
  He must manage an independent and creative workforce, build and 
nurture relationships with foreign spy chiefs, and lead teams of 
scientists, technicians, lawyers, analysts, and operatives who are 
involved in clandestine work. In short, the CIA is capable of the very 
best of America, and, catastrophically at times, it is capable of great 
  It follows that the position of CIA Director requires an uncommon 
nominee. That position should not remain vacant for long. For the past 
5 months, the Deputy Director, Michael Morell, has served as the Acting 
  Mr. Morell, like John Brennan, is a career CIA officer and a very 
gifted one. But as I discussed with him last Friday, he cannot single-
handedly attend the White House principals meeting, the deputies 
meetings, direct the agency, meet with liaison partners, testify before 
Congress, implement sequestration, and do everything else the Director 
and Deputy Director must jointly do.
  John Brennan and Michael Morell will be a great team in leading the 
CIA. I believe they compensate for one another. Michael Morell has 
these skills in analysis, and I think John Brennan has skills that make 
him a very strong and, yes, even tough leader.
  We face continuing attack from terrorists. There is no question about 
that. I see the reports every day. Our posts overseas remain at risk, 
and terrorists still seek to attack us at home. As a matter of fact, 
there have been over 100 arrests in the last 4 years by the FBI in this 
  There is a massive and still growing humanitarian disaster underway 
in Syria with no end in sight and the prospect of an increasingly 
desperate regime with nothing to lose. Instability is going to continue 
to fester across North Africa, from Mali to Algeria, to Libya and 
beyond, breeding and harboring a new generation of extremist.
  The North Korean regime is threatening to disavow the 1953 cease-fire 
with the South, and it has the nuclear and missile capability to cause 
massive destruction and instability.
  Iran's nuclear program continues to grow and its Revolutionary Guard 
and Hezbollah proxy are growing bolder and more capable.
  China's foreign policy and military might are increasing. According 
to well-sourced recent unclassified reports, its cyber operations are 
bleeding our private sector dry.
  The CIA has a role to play in all of these areas, as well as 
maintaining and expanding its global coverage. This is going to require 
prioritizing resources and producing better results from a very skilled 
CIA workforce. So the CIA Director position must be filled. Five months 
is too long to leave it vacant. John Brennan, I believe, and 12 members 
of our committee believe, is the right person to fill it.

  On that question, whether we can depend on John Brennan to be 
straight with the committee, I believe he will be and that he will be 
someone with whom we can build a strong and trusting relationship.
  Let me just say one thing that is important. It is very important 
that the Intelligence Committees in both of these Houses have that 
relationship with the Director of the CIA, so that with a bond of trust 
there can be a sharing of information which enables our oversight to be 
more complete. Without that, our oversight is not complete, and it 
certainly is not as rigorous as what is required.
  In nominating John Brennan, President Obama spoke of his ``commitment 
to the values that define us as Americans.'' DNI Clapper, in a letter 
of support to the committee, noted John's ``impeccable integrity'' and 
that his ``dedication to country is second to none.'' He has been 
called the administration's ``conscience,'' and I believe he will be a 
straight shooter, which is extraordinarily important to me. I want the 
truth whether it is good or bad. I want the truth. I believe every 
member of my committee feels the same way.
  Mr. Brennan has been straightforward with the committee throughout 
the confirmation process. He has pledged to be open with us if 
confirmed. We will take him up on that pledge. In his opening statement 
at the committee's public confirmation hearing, Mr. Brennan said: If 
confirmed, ``I would endeavor to keep this committee fully and 
currently informed, not only because it is required by law, but because 
you can neither perform your oversight function nor support the mission 
of the CIA if you are kept in the dark.''
  He acknowledged that the ``trust deficit has at times existed'' 
between the Intelligence Committee and the CIA, and he pledged to make 
it his goal to strengthen the trust between our institutions. I look 
forward to giving him that opportunity. To be sure, I will hold him to 
these words.
  I recognize that building a relationship and trust requires two 
willing partners. We are willing. I believe he will be willing. We will 
find out.
  In fact, there is a broader issue on the interaction between the 
executive branch and the Congress on intelligence matters. It goes well 
beyond Mr. Brennan, and I wish to speak about it.
  I have served on the Intelligence Committee for more than 12 years. 
This is actually a lot more unusual than it sounds. From the 
committee's establishment in 1976 to the end of 2004, there were term 
limits on committee membership. Senators rotated off the committee just 
when they had served for long enough to understand what the 
intelligence community is doing and, most important, how it operates.
  Senators Rockefeller, Wyden, Mikulski, and I have all served on the 
committee for more than a decade, and Senators Chambliss and Burr are 
near that total. Both served on the House committee before coming to 
the Senate.
  So now we have veterans on the committee who have watched and 
listened. We spend a minimum of 2 hours in a committee meeting twice a 
week and often longer. We cannot take home notes. Notes go in the safe 
and we cannot take home classified information. It means a lot of 
reading whenever we are able to find the time to go to a SCIF to read 
the classified information

[[Page S1251]]

which daily is quite voluminous. We see everything except the 
President's PDB; that is, the President's Daily Brief. All the other 
information from all the other agencies stream through this committee. 
It is vital we read it because this is where we find out where the 
threats are.
  We have been able to truly understand the relationship between the 
Intelligence Committee, the intelligence community, and the importance 
of having the committee kept fully and currently informed of 
intelligence matters. That is not our wish. That is a requirement of 
the National Security Act. We have seen what happens when this is not 
the case, when the committee doesn't have access to full knowledge of 
intelligence, as with the weapons of mass destruction weapons before 
the war or with the CIA's detention and interdiction program through 
the past administration.
  By contrast, when we are briefed, we can provide input and advice. We 
work to put an end to ill-advised plans, and we give the intelligence 
community a measure of support and defend its actions.
  There is a very strong feeling on both sides of the aisle that the 
committee is not receiving the information it needs to conduct all 
oversight matters in the manner in which we should. There is the matter 
of Office of Legal Counsel opinions concerning the targeted killing of 
Americans. The committee needs to understand the legal underpinning of 
not only this program but of all clandestine programs, of all covert 
actions, so we may ensure the actions of the intelligence community 
operate according to law. Absent these opinions, we cannot conduct 
oversight that is as robust as it needs to be.
  During the confirmation process, we were able to reach an agreement 
with the administration to receive these opinions, with staff access 
and without restrictions on note taking.
  I want to thank the administration. I think increasingly they 
understand this problem of the need for us to access more information. 
It is not a diminishing one, it is a growing one, and it is spreading 
through this House--and I suspect the other House as well.
  It needs to be this way. We need to know the legal basis for very 
serious actions taken in a secretive way by the intelligence community. 
Therefore, we can defend it. If we don't see it, we don't know.
  I also wish to address the drone issue once more, mainly to discuss 
the hypothetical examples offered yesterday by the Senator from 
Kentucky. On Fox News this week, he mentioned--and I began with this 
``what we are talking about is eating dinner in your house, you are 
eating in a cafe or walking down the road, and a drone strike can 
occur. It is not about people involved in combat, it is about people 
who they think might be.''
  A drone strike against someone eating in a cafe or walking down the 
road will never happen in the United States of America. This is not 
permitted in the United States of America. The Attorney General, in his 
letter to Senator Paul, has said just that. It will not happen.
  I hope this puts this issue to an end. It is one thing to target a 
terrorist in an isolated country where there are isolated mountains and 
valleys and where we cannot get to them to capture them, but we know 
terrorists and terrorist leaders are plotting against the United 
  The United States of America is a different place. There is access to 
the court system, access to police, access to FBI, access to warrants, 
access to arrests, access to be able to find and ferret out individual 
terrorists. Drones will never be used in the United States of America 
to kill innocent Americans, not if I have anything to do with it.
  Yesterday, in the Judiciary Committee while I was present, Senator 
Cruz followed up on Senator Paul's concerns, asking Attorney General 
Holder if an American eating in a cafe--who doesn't pose an imminent 
threat--could be killed by a drone. I don't believe the Attorney 
General, at the time he heard the question or recognized the simplicity 
of the facts presented by the hypothetical. When he did, he said no. My 
view is the Attorney General's letter to Senator Paul is correct. The 
only case in which the use of lethal force against Americans in the 
United States could be contemplated or constitutional would be an 
extraordinary circumstance such as the attack on Pearl Harbor or the 
terrorist attacks on September 11, where four big commercial airliners 
were hijacked and flown into three large buildings, with the fourth 
crashing into a field in Pennsylvania.
  Another issue, where the committee has sought documents, is related 
to the Benghazi terrorist attack.
  I notice that the vice chairman is on the floor. He and I have worked 
to bring the additional documents his side wanted on the Benghazi 
attacks. We have a commitment from the administration that all those 
documents, if they haven't already been forthcoming--and it is my 
understanding from the Senator most have been forthcoming--the 
remaining ones will be forthcoming as well.
  My view is the committee has received the information we need in 
order to render a judgment about what happened in Benghazi before the 
attacks of last September 11 and 12, during, after, and before. My 
view, quite simply stated, is there was strategic warning about the 
conditions in Eastern Libya. And based on the previous attacks in the 
area, it was likely this mission not it was not a consulate--but this 
mission could well be a site of attack. Members have asked legitimate 
intelligence questions within our jurisdictional lane about Benghazi, 
and they deserve answers to their questions.
  Many Senators on both sides of the aisle in the committee see the 
need for a better relationship and a better appreciation of what we 
need in order to do our work. As I discussed previously, we are very 
different from other congressional bodies which do oversight. Our 
efforts aren't supplemented by the press, GAO or by nonprofit and 
advocacy groups in the same way they are in the other committees of the 
Congress. The Intelligence Committees in the House and the Senate need 
to receive information from the executive branch in order to exercise 
robust oversight.

  I have spoken directly to the President, the President's Chief of 
Staff, the National Security Adviser, and the Director of National 
Intelligence about this. I believe they are truly beginning to 
understand what is at stake. I am told they have an open view and are 
discussing increased transparency with us at this time.
  I strongly believe John Brennan will be part of the solution, and he 
will be someone with whom we may work closely. He is well qualified. 
His leadership and management are sorely needed, and he has strong 
bipartisan support in the committee.
  I urge a ``yes'' vote.
  I yield the floor to the distinguished vice chairman from Georgia, 
with whom it has been a great pleasure for me to work. We haven't 
disagreed on a lot--we have disagreed on a few things--but I want the 
Senator to know I wish to continue our relationship.
  We need to put together another authorizing bill. I look forward to 
working with you, Mr. Vice Chairman, in that regard, and I thank you.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Madam President, I rise to explain why I am opposing 
the nomination of John Brennan to be the next director of the Central 
Intelligence Agency.
  First, I wish to say I thank the chairman for her kind comments. Let 
me state, as they had reiterated, we had 2 great years where we 
accomplished a great deal. She is one tough gentle lady, particularly 
when it comes to the national security of the United States.
  It has been a pleasure to work with her. It is rare we ever disagree, 
because we both have the same end result in mind, which is to make sure 
America and Americans are safe, secure, and the intelligence community 
is doing its part to ensure that happens.
  Her leadership has just been amazing. We have produced authorization 
bills over each of the last 2 years--we have actually done four in 2 
years, which indicates there was a backlog of those authorization 
  We have also reauthorized FISA and some other measures which equip 
our intelligence community as well as our law enforcement community 
with the tools they need to combat terrorism. It is because of her 
leadership we have been able to do that.

[[Page S1252]]

  When we do disagree, it is kind of an unusual situation. We may have 
disagreements in a bipartisan way within our committee. This is good. 
It is healthy.
  Sometimes Democrats will side with me or Republicans will side with 
the chairman on an issue. This shows us people are voting with their 
hearts and what they think is in the best interests of America, not 
from a partisan standpoint.
  I attribute that to the leadership of Chairman Feinstein because of 
her openness and for allowing bipartisan participation in a fine way.
  I expect Mr. Brennan is going to be confirmed by the Senate. I would 
have liked to have supported his nomination.
  Unfortunately, I have significant concerns about several matters I 
simply cannot put aside. If confirmed, Mr. Brennan will interact 
extensively with the Senate Intelligence Committee and in particular 
with Chairman Feinstein and with myself as the vice chairman. He will 
have many opportunities over the next several years to alleviate my 
concerns, and I hope he does so. At this time, I cannot support placing 
him in a position so vital to our national security mission.
  During the confirmation process, including during the open hearing, 
I, along with other members, asked Mr. Brennan questions about the 
leaks of classified information, issues involving congressional 
oversight, interrogation, and detention matters. His responses to many 
of these questions were very troubling and raised new concerns about 
Mr. Brennan's judgment, his reluctance to commit to transparency with 
Congress, and ultimately his candor. Let me describe these concerns 
more fully.
  First, I am deeply disturbed by Mr. Brennan's responses to the 
committee regarding leaks of classified information, especially the 
disclosure relating to the AQAP underwear bomb plot thwarted in May of 
2012. Mr. Brennan acknowledged to the committee he had told four media 
commentators we had ``inside control'' of this bomb plot but disputed 
assertions that this disclosure resulted in the outing of a source. It 
is undeniable that the day after his disclosure, there were dozens of 
stories in the media stating the plot was foiled by a ``double agent'' 
or ``undercover agent'' who posed as a willing suicide bomber.

  Mr. Brennan is poised to serve as the head of the Nation's leading 
spy agency where he will be privy to some of the most sensitive, if not 
all of the most sensitive, and highly classified operations being 
conducted by the intelligence community. That he apparently thinks he 
did nothing wrong in this disclosure is very troubling, to say the 
  We all know there is a big problem with leaks of classified 
information. We constantly deal with it in the committee and seek to 
eliminate it. We cannot effectively hold accountable those responsible 
for such leaks if a senior government official appears to shrug off his 
own damaging disclosure. I hope Mr. Brennan will reconsider his 
position on this case and convey to those he expects to lead, not just 
in words but by his own example, the importance and necessity of 
maintaining the secrecy he will be sworn to uphold.
  Second, Mr. Brennan appears to be one of the architects of the 
administration's current detention policy--or better stated, lack 
thereof. Since the President signed the Executive orders in 2009 
disbanding the CIA's detention and interrogation program and ordering 
the closure of the Guantanamo Bay detention facility, many of us have 
been asking the administration to tell us what their new detention 
policy is. Unfortunately, in the years since, we have seen a most 
unsatisfactory response play out in ways that I believe are detrimental 
to our collection of timely intelligence and, ultimately, to our 
national security.
  We have seen a disturbing trend of returning to the pre-9/11 days 
when bringing criminal charges against terrorists was a preferred 
course rather than long-term detention, which allows for greater 
intelligence collection. Because of this preference, the 2009 Christmas 
Day bomber, Umar Farouk Abdulmutallab, was read his Miranda rights 50 
short minutes after being pulled off the airplane that he had just 
tried to bomb. It took 5 weeks before he would again cooperate and no 
one knows what intelligence might have been lost during that delay.
  Somali terror suspect Ahmed Abdulkadir Warsame was held on a naval 
ship and interrogated for 60 days before being brought to a Federal 
Court, all because the administration refused to send any more 
detainees to Guantanamo Bay.
  Even in the months before the Osama bin Laden raid, other than saying 
Guantanamo Bay was off the table, administration officials could not 
tell Congress where bin Laden would be held if he were captured.
  Most recently, Ani al-Harzi, the only person held in connection with 
the September 11, 2013, attacks in Benghazi that claimed the lives of 
four Americans, was released by the Tunisians and is now roaming about 
free because this administration would not take custody of him unless 
criminal charges could be filed here in the United States.
  Mr. Brennan is not merely a staunch and unapologetic advocate of this 
misguided policy, he is the driving force behind it.
  By criminalizing the war on terrorism, this administration has tied 
the hands of our intelligence interrogators and appears to be avoiding 
opportunities to capture terrorists in favor of just killing them or 
relying on our foreign partners to do our intelligence collection for 
us. Mr. Brennan disputes this assertion and testified that he was not 
aware of any instance in which we had the opportunity to capture a 
terrorist but took a lethal strike instead. But his testimony on this 
point appears to be particularly incredible. While reasonable minds may 
differ as to whether bin Laden should have been taken alive, to argue 
that he could not have been taken alive and captured is not believable 
when his wives and children were left behind during the raid. The truth 
is the administration simply had no plan to capture him.
  Now, while in this case of UBL, killing him probably was the best 
option, I believe that all options have to be on the table and utilized 
when appropriate; otherwise, we are potentially losing valuable 
intelligence. Yet Mr. Brennan's testimony before the Intelligence 
Committee made clear that he is fully satisfied with how detainees are 
currently being handled and he is insistent the CIA remain out of the 
detention business, even if it means we do not get direct or timely 
access to detainees.
  Thirdly, Mr. Brennan continues to insist that he conveyed to 
colleagues at the CIA his personal objections to the CIA's 
interrogation program. Yet not a single person has come forward to 
validate that claim. And Mr. Brennan still refuses to identify those 
colleagues, in spite of several direct requests by the Intelligence 
Committee. During the time in question, Mr. Brennan served as the CIA's 
Deputy Executive Director. We know he was privy to information about 
the program, as we have seen numerous documents he received during and 
after the interrogation of Abu Zubaydah.
  It is not just reasonable, it is expected our intelligence 
professionals, especially those in leadership positions, will speak up 
when they see actions they believe are harmful to the agency or to 
others. Yet by Mr. Brennan's own account, he stood by and let the CIA 
proceed down a path that he says he believed to be morally wrong and 
likely to harm the long-term reputation of the CIA. This is not the 
moral courage we expect, especially from those who are in a position to 
influence policy and operations. Unfortunately, Mr. Brennan continues 
to insist that his official silence was entirely appropriate, and I 
could not disagree more.
  I am also troubled by Mr. Brennan's apparent willingness to scuttle 
years of belief in the value of the information obtained from the CIA's 
interrogation program simply because the recent interrogation study 
conducted by the committee's majority staff found otherwise. In my 
view, the study is significantly flawed, not the least of which being 
that not a single intelligence community witness was interviewed. I am 
worried about the impact Mr. Brennan's reversal will have on the morale 
of those current CIA employees who were involved in the program and 
whose own judgment and reputations are called into question by this 

[[Page S1253]]

I expect when the CIA returns its comments to the Intelligence 
Committee about the accuracy of the report that Mr. Brennan will not 
let his personal views of the program interfere with the professional 
assessment and analysis of CIA employees.
  Finally, underlying all of these issues are the principles of candor 
and transparency with Congress. Our Nation was founded with three 
coequal branches of government, each one providing checks and balances 
over the other in a manner specified in the Constitution. Federal law 
also imposes explicit obligations on the intelligence community, such 
as keeping Congress fully and currently informed of significant 
intelligence activities. Ordinarily, during confirmation hearings, 
nominees unequivocally pledge their cooperation to Congress. Yet during 
his confirmation process, Mr. Brennan refused to give affirmative 
answers when asked to commit to such cooperation.

  For example, he pledged to only give ``full consideration'' to any 
request that the committee be provided with raw intelligence, even 
though the committee has been given such intelligence in the past. When 
asked about the inexcusable problems the committee has faced in trying 
to obtain documents about the Benghazi attacks, Mr. Brennan promised 
only to try to reach an accommodation with the committee if a similar 
situation should ever arise again. This is hardly encouraging. Some may 
say that Mr. Brennan was simply being honest and not overpromising. I 
might agree but for the fact this pattern of obstruction and lack of 
cooperation is becoming all too familiar to the committee, and Mr. 
Brennan has been involved in many of the decisions to withhold 
information from Congress.
  For example, when the National Counterterrorism Center was created, 
Congress gave it specific responsibility to serve as the primary 
organization for strategic operational planning for counterterrorism. 
For too long the committee has been refused full access to the 
resulting counterterrorism strategies, a decision for which Mr. Brennan 
is directly responsible. Rather than give us the strategies, the 
administration has proposed an ``accommodation'' to simply brief the 
committee, but as of today we still have not been briefed, even though 
we are asked to fund the strategies as well as their implementation.
  There are other examples, including the absurd restrictions that were 
recently placed by the White House on the review of the OLC opinions 
regarding lethal strikes on U.S. citizens. It is incomprehensible that 
Congress is being denied unfettered insight into matters concerning the 
intentional killing of U.S. citizens.
  During the confirmation process, Mr. Brennan called on the 
Intelligence Committee to be the protector and defender of the CIA. 
That is not an accurate description of the committee's role. Given the 
classified nature of intelligence activities, the committee serves as 
the eyes and ears of the American people, and our responsibility lies 
first and foremost to them. That is not to say we will not defend the 
CIA or the rest of the intelligence community against unjust attacks. 
We will. But the committee's primary role is to conduct oversight, and 
we cannot do that effectively without full cooperation from the 
intelligence community as well as the administration. I hope and expect 
Mr. Brennan will now give us that cooperation rather than just what he 
views as an accommodation.
  The Director of the CIA has extensive and direct interactions with 
Members of Congress, especially those of us on the Intelligence 
Committee. During sensitive operations or times of crisis, the Director 
is often one of the first to communicate with Members. There have been 
too many instances in the past--under administrations of both parties--
in which facts were withheld from Members or information was painted in 
a particular light to suit messaging needs, as we saw with the Benghazi 
talking points. That is simply unacceptable.
  If confirmed as the CIA Director, Mr. Brennan's credibility must be 
unquestionable. We expect our spy agencies to be very good at hiding 
the truth--but not with Congress. Here too Mr. Brennan will be an 
example that all CIA employees look to, and his own standards of 
honesty and credibility in dealing with Congress must be above and 
beyond all reproach.
  In conclusion, let me say that I have great confidence in the men and 
women at the CIA. Each and every day they give this Nation their best, 
and for that we are most grateful. They are the most professional, best 
educated, and best operational intelligence agency in the world. They 
are unbelievable men and women. My vote today is not a message to them 
nor is it an indication of the faith I have in the CIA. My vote is not 
personal toward Mr. Brennan; rather, it simply reflects my belief that 
the unauthorized disclosure of classified information is wrong 
regardless of whether you are on the front lines or you are an adviser 
to the President.
  My vote also reflects my belief, especially at this time in our 
history, that the Director of the CIA should not support detention and 
interrogation policies that are returning us to the pre-
9/11 days of elevating criminal charges over intelligence collection. 
In my view, Mr. Brennan is on the wrong side of both of these issues.
  I also believe Congress must be an equal branch of the government, 
and this growing trend of refusing to cooperate with Congress must end. 
The future and security of our country depends on all of us working 
together. To do that well, there must be transparency and honesty. If 
confirmed as the CIA Director, Mr. Brennan has a tough job ahead of 
him. If he abides by these principles, he will find his job will be 
much easier, as he will have earned the support and the trust of 
Congress, and the country will be better off for it. Assuming 
confirmation of Mr. Brennan, he will have my full cooperation and 
support, I expect nothing less from him, and I hope that all of my 
concerns will be put to rest.
  With that, Madam President, I yield the floor.
  Mr. UDALL. Madam President, I am voting today for the confirmation of 
John Brennan to head the Central Intelligence Agency, CIA. He is a 
qualified nominee, and this position is too important to our national 
security to remain vacant. Mr. Brennan is a 25-year veteran of the 
Central Intelligence Agency. He has been an able adviser to President 
Obama and part of some of the most important national security 
decisions made during the last 4 years, including the raid that killed 
Osama bin Laden.
  John Brennan should be confirmed as CIA Director. While I am 
supporting his nomination, I want to make one thing clear: I am not 
satisfied by the administration's limited disclosure of documents 
outlining the legal justification for an extraordinary authority--to 
target and kill American citizens in the course of counterterrorism 
operations. I first called on the administration to provide Congress 
with its legal justification in September 2011. This was after a 
remotely piloted aircraft strike in Yemen killed Anwar al-Awlaki, an 
American-born citizen. It was clear that al-Awlaki was a senior al-
Qaeda leader who posed a threat to American lives and deserved his 
fate. Nevertheless, we are a nation of laws. Congress has a vital 
oversight role and shared national security responsibility. We are 
entitled access to full legal justifications for the President's 
authority to target and kill an American citizen, and an explanation of 
what limits there are to that authority. These legal precedents are 
constitutional issues of the highest order.
  Last month, eleven United States Senators from both parties--
including myself--sent a letter to the President requesting the release 
of all legal opinions justifying his authority to authorize the killing 
of American citizens as part of counterterrorism operations. There has 
been some progress. The Justice Department recently provided many of 
these documents to members of the Senate Select Committee on 
Intelligence. However, I believe all of us in the Senate should be able 
to review these documents and fulfill our constitutional duty to 
conduct rigorous congressional oversight. While I will support John 
Brennan's confirmation today, I will continue to seek access to these 
legal opinions so that the Senate can fulfill its responsibility.
  Since the attacks on September 11, 2001, both Presidents Bush and 
Obama have claimed expansive wartime executive authorities that have 
been supported in Justice Department legal

[[Page S1254]]

opinions. We saw this in the previous administration with the issues of 
detainee interrogation methods and extraordinary renditions. While we 
recognize the administration's authority to target and kill enemy 
combatants, the targeting of American citizens in counterterrorism 
operations raises important constitutional questions. Congress shares 
constitutional authority for national security matters, and we must be 
allowed to conduct oversight, which, in this case, includes reviewing 
the legal justifications of the executive branch. When there is no 
oversight, abuses can occur. And I believe that every administration 
must be held accountable, regardless of which party controls the White 
  Mr. LEVIN. Madam President, I continue to have some concerns about 
John Brennan, the President's nominee to serve as the next Director of 
Central Intelligence.
  First, I am troubled by Mr. Brennan's unwillingness to state 
unambiguously that waterboarding is torture. At his hearing before the 
Intelligence Committee, I asked Mr. Brennan this question three times 
without getting a direct answer:

       SENATOR LEVIN: You've said publicly that you believe 
     waterboarding is inconsistent with American values. It's 
     something that should be prohibited, goes beyond the bounds 
     of what a civilized society should employ.
       My question is this, in your opinion does waterboarding 
     constitute torture?
       MR. BRENNAN: The attorney general has referred to 
     waterboarding as torture. Many people have referred to it as 
     torture. The attorney general, premiere law enforcement 
     officer and lawyer of this country.
       And as you well know and as we've had the discussion, 
     Senator, the term ``torture'' has a lot of legal and 
     political implications.
       It is something that should have been banned long ago. It 
     never should have taken place in my view. And, therefore, it 
     is--if I were to go to CIA, it would never, in fact, be 
     brought back.
       SENATOR LEVIN: Do you have--do you have a personal opinion 
     as to whether waterboarding is torture?
       MR. BRENNAN: I have a personal opinion that waterboarding 
     is reprehensible and it's something that should not be done. 
     And, again, I am not a lawyer, Senator, and I can't address 
     that question.
       SENATOR LEVIN: Well, you've read opinions as to whether or 
     not waterboarding is torture. And I'm just--I mean, do you 
     accept those opinions of the attorney general? That's my 
       MR. BRENNAN: Senator, you know, I've read a lot of legal 
     opinions. I've read an Office of Legal Counsel opinion in the 
     previous administration that said in fact waterboarding could 
     be used.
       So from the standpoint of--of that, you know, I cannot 
     point to a single legal document on this issue.
       But as far as I'm concerned, waterboarding is something 
     that never should have been employed and--and--and as far as 
     I'm concerned, never will be, if I have anything to do with 
       SENATOR LEVIN: Is waterboarding banned by the Geneva 
       MR. BRENNAN: I believe the attorney general also has said 
     that it's contrary, in contravention of the Geneva 
       Again, I am not a lawyer or a legal scholar to make a 
     determination about what is in violation of an international 

  After the hearing, I wrote to Mr. Brennan, pointing out that the 
President and senior administration officials, including both lawyers 
and non-lawyers, had concluded that waterboarding is torture. I asked 
the question again, and again I got no direct answer. Mr. Brennan 

       You have asked for my position on whether waterboarding 
     constitutes `torture.' I understand and appreciate your 
     concern about the use of waterboarding by the prior 
     Administration. As I have made clear, I considered it 
     reprehensible then and now, and I have been an unwavering 
     supporter of the President's decision to ban its use. I have 
     also in the past stated that I believe waterboarding subjects 
     a person to severe pain and suffering, which is a common way 
     of defining `torture.' In addition, I have indicated in our 
     prior conversations and in my appearance before the Senate 
     Select Committee on Intelligence on February 7, the term 
     `torture' is a legal term, and I defer to the Attorney 
     General on matters of legal interpretation.

  Mr. President, I ask unanimous consent that my letter to Mr. Brennan, 
and Mr. Brennan's response, be printed in the Record immediately after 
my statement.
  Second, I am troubled that, during the time that Mr. Brennan served 
on the staff of the National Security Council--NSC, senior 
administration officials consistently declined to provide Congress with 
access to key legal memoranda relative to the use of targeted strikes 
against terrorist targets. Indeed, we were able to obtain access to 
these memoranda only after it became clear that Mr. Brennan might have 
trouble being confirmed if they were not made available.
  Third, I am troubled that, during the time that Mr. Brennan served on 
the NSC staff, senior officials in the intelligence community and the 
NSC staff apparently did not protest when U.N. Ambassador Susan Rice 
was rejected for the position of Secretary of State on the basis of her 
public comments on the Benghazi attacks, even though those comments 
were based on talking points produced by, reviewed by, and edited by 
those same officials.
  My concerns about Mr. Brennan's unresponsiveness in these three areas 
are not sufficient to overcome the fact that he is qualified to be 
Director of Central Intelligence. But it is my hope that he will learn 
from this confirmation process and be more responsive to congressional 
requests for information in the future.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,

                                  Committee on Armed Services,

                                Washington, DC, February 20, 2013.
     John O. Brennan,
     Assistant to the President for Homeland Security and 
         Counterterrorism, The White House, Washington, DC.
       Dear Mr. Brennan: I am troubled that, during your 
     confirmation hearing on February 7th, you chose not to 
     express your personal opinion as to whether waterboarding 
     constitutes torture. As the Senate Select Committee on 
     Intelligence continues to consider your nomination to be 
     Director of the Central Intelligence Agency (CIA), I would 
     appreciate your answers to the following questions for the 
       In a November 2007 interview with CBS News, you stated, ``I 
     think it [waterboarding] is certainly subjecting an 
     individual to severe pain and suffering, which is the classic 
     definition of torture.''
       Do you still hold that view today?
       During his January 2009 confirmation hearing, Attorney 
     General Holder stated ``waterboarding is torture'' and 
     pointed out ``If you look at the history of the use of that 
     technique used by the Khmer Rouge, used in the inquisition, 
     used by the Japanese and prosecuted by us as war crimes. We 
     prosecuted our own soldiers for using it in Vietnam.''
       During a press conference in April 2009, President Obama 
     said ``waterboarding violates our ideals and our values. I do 
     believe that it is torture. I don't think that's just my 
     opinion; that's the opinion of many who've examined the 
       In another press conference in November 2011, President 
     Obama said ``Waterboarding is torture. It's contrary to 
     America's traditions. It's contrary to our ideals. That's not 
     who we are.'' He continued, ``If we want to lead around the 
     world, part of our leadership is setting a good example. And 
     anybody who has actually read about and understands the 
     practice of waterboarding would say that that is torture.''
       Finally, during his February 2009 confirmation hearing to 
     be Director of the CIA, Leon Panetta said ``I believe that 
     waterboarding is torture and that it's wrong.''
       Do you agree with President Obama, Attorney General Holder, 
     and Secretary Panetta that waterboarding constitutes torture?
       I would appreciate your prompt response to these questions.
                                                       Carl Levin,

                                              The White House,

                                Washington, DC, February 25, 2013.
     Hon. Carl Levin,
     Chairman, Committee on Armed Services, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman: Thank you Mr. Chairman, for your letter 
     of February 20, 2013.
       You have asked for my position on whether waterboarding 
     constitutes ``torture.'' I understand and appreciate your 
     concern about the use of waterboarding by the prior 
     Administration. As I have made clear, I considered it 
     reprehensible then and now, and I have been an unwavering 
     supporter of the President's decision to ban its use. I have 
     also in the past stated that I believe waterboarding subjects 
     a person to severe pain and suffering, which is a common way 
     of defining ``torture.'' In addition, I have indicated in our 
     prior conversations and in my appearance before the Senate 
     Select Committee on Intelligence on February 7, the term 
     ``torture'' is a legal term, and I defer to the Attorney 
     General on matters of legal interpretation.
       In closing, let me assure you that I fully appreciate that 
     the humane treatment of detainees is both a national security 
     and a humanitarian imperative. If I am confirmed to serve as 
     Director of the Central Intelligence Agency, I will never 
     approve the deployment of waterboarding under any 
     circumstance, and will do everything in my power to prevent 
     its use.

                                              John O. Brennan,

                           Assistant to the President for Homeland
                                    Security and Counterterrorism.

  The PRESIDING OFFICER. The Senator from Wyoming.

[[Page S1255]]

  Mr. ENZI. Madam President, I yield myself 10 minutes.
  I would first associate myself with the remarks of the Senator from 
Georgia, Mr. Chambliss, who is the ranking member on the Intelligence 
Committee and has looked into this much deeper than I would ever be 
able to. I appreciate the comments, the depth, and knowledge he has 
imparted on that.
  So I would be in opposition of the nomination of John Brennan for CIA 
  The administration hasn't been forthcoming in answering a vitally 
important question of whether Americans could be killed by a drone on 
American soil without first being charged----
  Mr. REID. Madam President, would the Senator from Wyoming yield for a 
unanimous request?
  The PRESIDING OFFICER. Would the Senator yield?
  Mr. ENZI. I yield to the Senator from Nevada.
  Mr. REID. Madam President, I ask unanimous consent that the time on 
the Republican side be limited to 15 minutes, with Senator Paul--and 
how much time does my friend from Wyoming need?
  Mr. ENZI. I asked for 10, but I could do it in 8.
  Mr. REID. Eight minutes. Everybody else is gone.
  I ask unanimous consent that the time on the Republican side be 
limited to 15 minutes for Senator Paul and 8 minutes for Senator Enzi; 
that following the use or yielding back of time on the nomination, the 
mandatory quorum under rule XXII be waived; the Senate proceed to vote 
on the cloture motion; that if cloture is invoked, the Senate proceed 
to vote on confirmation of the nomination, without intervening action 
or debate; further, that the motion to reconsider be considered made 
and laid on the table, with no intervening action or debate; that no 
further motions be made in order to the nomination; that President 
Obama be immediately notified of the Senate's action and the Senate 
then resume legislative session.
  The PRESIDING OFFICER. Is there any objection?
  Without objection, it is so ordered.
  Mr. REID. Madam President, I extend my appreciation. There is no one 
in the Senate who is more courteous and thoughtful than Senator Enzi, 
and I appreciate his assistance.
  Mr. ENZI. I thank the Senator very much.
  As I was mentioning, this administration hasn't been forthcoming in 
answering the vitally important question of whether Americans could be 
killed by a drone on American soil without first being charged with a 
crime or being found guilty in a court of law. This should have been a 
very simple answer.
  White House Press Secretary Jay Carney stated today that the 
administration does not have the authority to kill Americans on 
American soil. That is great news. However, it shouldn't have taken a 
U.S. Senator 12 hours of nonstop talking for the administration to 
acknowledge the simple fact that it can't kill Americans on American 
soil without a trial.
  I wish to applaud Senator Paul's courage and conviction last night as 
he stood on the Senate floor for nearly 13 hours defending our rights 
under the Constitution. Senator Paul deserves recognition for standing 
up for the American people and bringing this issue to light. And it is 
an issue that I and many of my constituents in the State of Wyoming 
find very troubling.
  In fact, as I traveled around Wyoming a couple weeks ago, it became 
abundantly clear that people are very concerned over the 
administration's disregard for constitutionally guaranteed individual 
  Drones--unmanned aerial vehicles--have been made famous by their use 
in our war on terrorism. For a number of years these weapons have 
served in operations in Iraq and Afghanistan with success. However, the 
use of drones for both military and civilian purposes abroad and 
domestically is increasing.
  According to the Congressional Research Service, the Federal Aviation 
Administration predicts 30,000 drones will fill the skies in less than 
20 years. Although many of these uses will likely be for civilian 
purposes--disaster relief, border control, crime fighting, and 
agricultural crop monitoring--the use of drones raises new privacy and 
civil liberty questions for U.S. citizens.
  The first concern raised by the use of drones is how it may impact on 
our fourth amendment rights: U.S. citizens have the right to be free 
from unreasonable searches and seizures. Drones push the limits of what 
could be considered reasonable. Courts generally recognize that U.S. 
citizens have substantial protections against warrantless government 
intrusions into the home, and that the fourth amendment offers less 
robust restrictions on public places. However, drones begin raising the 
question of what is reasonable when it comes to the expectation of 
privacy in one's driveway or even backyard.
  In a speech last night, Senator Paul reiterated additional 
constitutional concerns that he has been seeking an answer on for a 
number of weeks. The administration just now responded, but it raises 
the concern about the willingness of the White House to act 
  When it comes to important matters of national security and 
constitutional liberties, we should all be asking ourselves why it took 
a U.S. Senator 12 hours of nonstop talking for the Department of 
Justice to acknowledge the simple fact that it cannot kill American 
citizens on American soil without a trial. Senator Paul asked a 
straightforward question and deserved a straightforward answer in a 
timely manner. His question hit right at the heart of the fifth 
amendment--rights as U.S. citizens, particularly ``no person shall . . 
. be deprived of life, liberty or property without due process of 
  The first response Senator Paul got back was everything short of a 
straightforward answer. This administration did not rule out the 
possibility of using drones against Americans on U.S. soil. This is 
particularly problematic, because our Constitution does not say the 
fifth amendment applies when the President or Attorney General thinks 
it applies. But it raises the concern about the willingness of 
the White House to act transparently.

  There is no reason why it should have taken so long for the 
administration to acknowledge they don't have the authority to kill 
Americans on U.S. soil without due process of law--specifically to deny 
someone the right to a judge and jury and a trial. The fifth amendment 
was written with this particular form of government abuse in mind and 
it was more than appropriate for Congress to ask this question in its 
oversight role.
  We know, and our legal system recognizes, that you don't get due 
process when you are actively attacking our soldiers or our government. 
However, that wasn't the question Senator Paul posed. Congress needed 
clarification from the administration on this nomination. In order to 
build faith and confidence in our Nation's military and intelligence 
community, we also need transparency and responsiveness in the 
questions raised by Congress.
  I will not be supporting John Brennan's nomination because of the 
lack of transparency and timeliness on this important matter, and the 
reasons given by the Senator from Georgia.
  Madam President, I yield the floor and reserve the remainder of my 
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. PAUL. Madam President, yesterday I spent a considerable amount of 
time on the floor talking about the idea of whether Americans are 
protected by the fifth amendment always--whether you can be targeted 
for drone strikes in America without your due process rights; whether 
you get your day in court if you are accused of a crime in America. I 
asked this question directly to the President, and I am pleased to say 
that we did get a response this morning. The response from the Attorney 
General reads:

       It has come to my attention that you have a question. Does 
     the President have the authority to use a weaponized drone to 
     kill an American not engaged in combat on American soil? The 
     answer to that question is no.

  So it has taken a while, but we got an explicit answer. I am pleased 
we did. And, to me, I think the entire battle was worthwhile, one, 
because we got to have a lot of discussion about when can drones be 
used--particularly when can a drone strike be used against an American 
on American soil?
  The reason this is important is often drones are used overseas toward 

[[Page S1256]]

who are not actively engaged in combat. I am not saying they are not 
bad people or they might have previously been in combat. But the thing 
is, we have to have a higher standard in our country. We can't have an 
allegation from the country that says you are an enemy combatant or 
that you are associated with terrorism. That is an allegation.
  If you are e-mailing somebody who is a relative of yours in the 
Middle East, and they may or may not be a bad person, it doesn't 
automatically make you guilty; if we label you an enemy combatant and 
say you are guilty, you don't get your day in court, and that is just 
not American.
  We have many soldiers from my State, from Fort Campbell and Fort 
Knox, who fight overseas for us. They are fighting for the Bill of 
Rights. They are fighting for the Constitution. So I consider it to be 
our duty to stand and fight for something we all believe in, and that 
is that the protections of the Bill of Rights are yours. When you are 
accused of something, you get your day in court.
  So I am very pleased to have gotten this response back from the 
Attorney General of the United States. I think that Americans should 
see this battle that we have had in the last 24 hours as something that 
is good for the country, and something that should unite Republicans 
and Democrats in favor of the Bill of Rights.
  Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Ms. Warren). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. FEINSTEIN. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Madam President, I yield back all time.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                             Cloture Motion

  Under the previous order, pursuant to rule XXII, the Chair lays 
before the Senate the pending cloture motion, which the clerk will 
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the nomination of 
     John Owen Brennan, of Virginia, to be Director of the Central 
     Intelligence Agency.
         Harry Reid, Dianne Feinstein, John D. Rockefeller IV, 
           Debbie Stabenow, Sherrod Brown, Jack Reed, Benjamin L. 
           Cardin, Thomas R. Carper, Christopher A. Coons, Robert 
           P. Casey, Jr., Mark L. Pryor, Bill Nelson, Mark Begich, 
           Barbara A. Mikulski, Patty Murray, Carl Levin, Joe 
           Manchin III.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of John Owen Brennan, of Virginia, to be Director of the 
Central Intelligence Agency shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Ms. Boxer) 
and the Senator from New Jersey (Mr. Lautenberg) are necessarily 
  Mr. CORNYN. The following Senator is necessarily absent: the Senator 
from Louisiana (Mr. Vitter).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 81, nays 16, as follows:

                       [Rollcall Vote No. 31 Ex.]


     Johnson (SD)
     Johnson (WI)
     Udall (CO)
     Udall (NM)



                             NOT VOTING--3

  The PRESIDING OFFICER. On this vote the yeas are 81 and the nays are 
16. Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, the motion is agreed to.
  The PRESIDING OFFICER. Under the previous order, the question is on 
confirmation of the Brennan nomination.
  Mrs. FEINSTEIN. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  There is a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of John Owen Brennan, of Virginia, to be Director of the Central 
Intelligence Agency?
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer) 
and the Senator from New Jersey (Mr. Lautenberg) are necessarily 
  Mr. CORNYN. The following Senator is necessarily absent: the Senator 
from Louisiana (Mr. Vitter).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 63, nays 34, as follows:

                       [Rollcall Vote No. 32 Ex.]


     Johnson (SD)
     Udall (CO)
     Udall (NM)


     Johnson (WI)

                             NOT VOTING--3

  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table. The President 
will be immediately notified of the Senate's action.

                           Vote Explanations

 Mrs. BOXER. Madam President, I was unavoidably absent from the 
votes related to the nomination of John Brennan to be Director of the 
Central Intelligence Agency. Had I been present, I would have voted yea 
on the motion to invoke cloture and yea on the nomination.
 Mr. VITTER. Madam President, I could not participate in the 
nomination of John Brennan to be Director of the CIA because of a 
family obligation in Louisiana.
  I strongly support Senator Paul's filibuster, oppose the use of 
drones in this country, and oppose both cloture and the confirmation of 
John Brennan.