Statement Of Sen. Patrick Leahy
Ranking Member, Judiciary Committee  
On The Nomination Of Kenneth Wainstein To Be
Assistant Attorney General For The National Security Section
Executive Business Meeting
June 15, 2006

Today we consider a nominee for the new position of Assistant Attorney General for the National Security Division.  All too often, in the Bush-Cheney Administration, national security has been cited as a justification for overriding the rule of law and for imposing unprecedented secrecy.  With the acquiescence of the Republican-controlled Congress, this Administration may be the most unresponsive in history and the most unaccountable.

Ken Wainstein is President Bush’s selection to be the first Assistant Attorney General for National Security, a new position created by Congress.  I will not oppose this nomination in the hope that Mr. Wainstein will work with us and be responsive to the Senators on this Committee. 

I have concerns about this Administration’s unilateral approach to national security issues.  Four years ago, the Office of Legal Counsel at the Justice Department issued a secret legal opinion concluding that the President of the United States had the power to override domestic and international laws outlawing torture.  The memo sought to redefine torture and asserted that the President enjoys “complete authority over the conduct of war” and asserted that application of the criminal law passed by Congress prohibiting torture “in a manner that interferes with the president’s direction of such core war matters as the detention and interrogation of enemy combatants would be unconstitutional.” It seemed to assert that the President could immunize people from prosecution for violations of United States criminal laws that prohibit torture.  This Justice Department memo was withdrawn only after it became public because it could not withstand public scrutiny. 

We have learned through the media of warrantless wiretapping and datamining conducted by this Administration.  This, despite the Foreign Surveillance Intelligence Act and its express provisions and the actions on the Senate in voting to curtail the datamining programs by Admiral Poindexter at the Defense Department.  We have yet to be provided with a convincing legal justification for these programs.  We have yet to be able to investigate or hold the Administration accountable.  Instead, every effort at oversight and accountability have been obstructed or curtailed by the Administration.  The Administration refuses to follow the law and submit matters to the FISA court and claims state secrets to force court challenges to be dismissed.  The Administration tells the Senate when, what and how it may investigate.  The Department of Justice’s own, internal Office of Professional Responsibility’s probe of whether or not lawyers at the Department violated ethical rules in justifying these activities was shut down by the Attorney General and the White House.

As this Administration continues to expand its power, the Department of Justice should be advising the President to obey the law and respect the Congress and the courts, not just helping to rationalize actions and forestall oversight.

In theory, this new position might help Department of Justice attorneys to act responsibly on national security issues, rather than just to do the White House’s bidding.  It should put national security issues into the hands of experts, not political cronies.  In fact, the WMD Commission recommended in March of last year that the different components of the Department’s dealing with national security, terrorism, counterintelligence, and foreign intelligence surveillance be combined to eliminate deficiencies and inefficiencies in the Department’s national security efforts.  Congress acted to create the post. This new Assistant Attorney General position can only serve a useful role if the person who occupies it is willing to think independently.  This Administration has consistently prized loyalty over independence and expertise. 

Mr. Wainstein has some experience as a prosecutor, but he has also been a loyal official of this Administration for some time now.  I hope that he will be able to look at the crucial national security issues to be handled by this new office with a critical eye and a view toward respecting law and the Congress.  If he does, he will be a breath of fresh air in the Bush-Cheney Administration.

Recently the Chairman and I received a letter from the Fraternal Order of Police.  The FOP “endorsed” Mr. Wainstein “in order to facilitate his departure from the U.S. Attorney’s Office.”  They criticized him for being “unwilling to perform” the function of investigating and prosecuting an alleged attack on a police officer.  That is not what I would term high praise for his judgment.  I ask that a copy of the letter be included in the record. 

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