The first item on today’s agenda is a Committee resolution granting the Chairman approval to issue subpoenas directed to various persons in the Justice Department. This is a serious step for this Committee to take but one which I feel this Committee must pursue.

At the outset, let me note that I have been informed that one of my colleagues has requested that the matter be held over for a week. For those in attendance, let me note that this is a matter of right under the Judiciary Committee’s Rules and a right I do not begrudge anyone from exercising. I would hope that we could proceed but, if we are to delay this until next week, so be it. Perhaps the Department of Justice can come to its senses in the interim.

Nevertheless, I want to offer some explanation as to why I feel a subpoena is necessary at this time.

On September 1, I wrote the Attorney General and sought her voluntary compliance with my request that she deliver to our Committee – no later than September 3 – four categories of documents pertaining to the Department’s role in the process that ultimately led to the grant of clemency to 16 members of the FALN.

Specifically, I sought: (i) documents reflecting any position taken by the Attorney General or the Department on whether clemency should be granted; (ii) all materials provided by the Department to the White House on the clemency issue; (iii) all correspondence and documents reflecting the views of the agencies or U.S. Attorneys on the clemency issue; and (iv) all materials relating in any way to the Department’s – or other law enforcement agencies’ – evaluation of the propriety of offering clemency.

On September 7, I received a response by the Acting Assistant Attorney General for the Office of Legislative Affairs, advising me that because my request implicated “important institutional issues,” the Department would get back to me later.

Now we are a full 15 days past my document request, and 13 days past the initial response deadline provided to the Committee. And yet, we have received nothing new insofar as our document request is concerned.

On September 11th, I requested through Committee staff that representatives of the FBI and the Pardon Attorneys Office appear at our hearing on September 15th. We were informed that the Administration was studying our request. The evening before our hearing, we received a letter denying our request. The Department is unwilling even to allow the Pardon Attorney to testify about the clemency process, or allow the FBI to testify about the activities and status of the FALN generally. (I ask that letters memorializing these communications be made a part of the record).

This is unacceptable, and belittles the oversight functions that are so indispensable to our system of checks and balances. What is fundamentally at stake here is the responsibility of the Department of Justice to respect this Committee’s oversight functions. The Pardon Attorney - to which the President has delegated (through the Deputy Attorney General) the responsibility of collecting information on clemency petitions, falls under the auspices of the Department of Justice, and as such, is within the purview of this Committee’s oversight functions. The structure and operation of the Department of Justice are within the purview of Congress. The Department of Justice, the Office of the Deputy Attorney General, and the Pardon Attorneys Office are all funded by and subject to the oversight of the Congress. We heard testimony that both the Deputy Attorney General and the Pardon Attorney met with representatives of the FALN clemency campaign.

We have tried to operate here by cooperation, having invited the noncompulsory participation of the Department and having requested that it deliver documents enabling us to conduct oversight. We also asked that the Department to voluntarily appear at the hearing yesterday to provide testimony. This noncompulsory approach has resulted in very little cooperation to date, and elicited the dilatory tactic I have seen time and again by the Department in attempting to stave off any direct conflict that might prove embarrassing for the Department.

Indeed, at a nominations hearing I chaired last month for two senior Department of Justice positions, I quoted – with acknowledgment of its all-too-painful accuracy – an insight contained in the recent book Shadow concerning the Administration’s strategy – and I now quote author Bob Woodward – to “never join the issue, never have an all-out fight with ... the congressional committees. Never say no to requests for documents or testimony. Always say, We'll get back to you, we'll get you what we can. Let's talk about this, Let's meet, Let's negotiate. Always keep something on the table. Avoid confrontation. Write conciliatory letters. The reason for the strategy was also simple: if there was no confrontation, there was no news. ... The less scandal news, the better for the president and his reelection.”

Well, I have to say, the Department is deeply mistaken if it believes it can elude compliance with our request for documents with such a gambit, which I have empirically confirmed as being a constant truth under this Administration.

As Chairman of the Senate Judiciary Committee, it is my obligation to ensure that we are able to exercise oversight over the Department of Justice and determine whether it has followed its own U.S. Attorneys Manual and regulations and solicited the views of law enforcement, the U.S. Attorney’s office and the sentencing judge, and whether it made a recommendation as its own manual and regulations require it to do.

If the views of law enforcement are not heard through the Pardon Attorney, we need to consider whether we should continue to provide funds for that office. Moreover, if the Department of Justice, which has responsibility for investigating violations of - and enforcing - laws against terrorism, appears to be acquiescing in the release of terrorists. We may well have to explore legislative alternatives to find ways to combat terrorism. Maybe we need to provide more money to the States to prosecute cases since their sentences cannot be commuted by the President. The bottom line is that the Justice Department’s failure to provide documents and testimony undermines Congress’ ability to exercise its constitutional authorization, appropriation and oversight functions in a meaningful, informed manner.

I would prefer that we were not here today. I would prefer that the Department of Justice cooperate with this Committee. The issuance of subpoenas is a matter I take very seriously and have exercised only after reflection and on rare instances. Unfortunately, I am convinced that the time has now come when we must view the Department’s delay as a denial, and that the most expeditious way to obtain the documents and testimony necessary for us to conduct oversight into this important matter is through our subpoena power. I hope my colleagues will support this resolution.

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