[国会记录:2011年6月29日(参议院)][第S4212-S4215页]总统先生,早在5月12日,总统要求国会通过立法使罗伯特·米勒继续担任联邦调查局主任FBI,另外2年,我们国家的持续威胁,其他关键的领导层换届的国家安全机构,以及当9/11十周年即将到来时我们所处的独特环境。应总统的要求，一个由两党参议员组成的小组起草并提出了S. 1103法案，该法案将允许现任联邦调查局局长的任期再延长2年，从而为限制联邦调查局局长任期的法规创造一次性例外。鉴于我们国家面临的持续威胁以及总统国家安全团队的连续性和稳定性的需要，毫不拖延地颁布这一关键立法是很重要的。穆勒局长的任期将于2011年8月3日到期。由于本周众议院休会，下周参议院休会，剩下的行动时间相对较少。总统提出要求到穆勒局长任期届满之间的10周时间里，已经有6周已经过去了。我们可以采取行动的时间已经过去了一大半。如果我们这个星期不能在这个问题上完成行动，参议院将休会到7月11日。 That leaves Congress only 3 weeks for all necessary action to be completed by the Senate and the House of Representatives. We should be acting responsibly and expeditiously. I have worked diligently with Senator Grassley in order to prevent a lapse in the term of the Director of the FBI. We must act on this bill without further, unnecessary delays. The Senate should take it up, consider it and pass it, and then the House will need to consider and pass the bill before the President has the opportunity to sign it. Each of these steps must be completed prior to the expiration of the Director's current 10-year term on August 3, 2011. There is no time to waste. I understand from the Senate cloakroom that all Senate Democrats are prepared to take up and pass S. 1103 and send it to the House of Representatives for it to take final action before August 3. We should do that now, before the Fourth of July recess. There is no good reason for delay. [[Page S4213]] The bill responds directly to the President's request to extend Bob Mueller's term as FBI Director, and was reported favorably by the Judiciary Committee on June 16 by a bipartisan majority of the committee and with the support of the ranking Republican member. I urge any Senators who have questions about the bill to read the accompanying committee report,报告112 - 23这份文件于2011年6月21日提交，现在已经打印出来，可以在网上下载。虽然我很乐意在委员会的最后报告中列入其他人的意见，但没有人及时提出意见，也没有人要求延长这样做的时间。委员会关于该法案的报告草案于2011年6月17日分发给所有委员会成员。根据司法委员会长期以来的惯例，参议员有3个日历天提交他们的意见。这种做法仿照了参议院规则第26条，但比第26条更为慷慨。委员会报告是在多数意见分发4天后提交的，但没有提交额外的、补充的或少数意见。它被迅速提交并公开，希望参议院能在本周考虑这个时间敏感的法案。与我的共和党前任们不同，作为主席，我保护了委员会中少数成员和所有参议员的权利。我这样做了，即使有些人选择滥用委员会的规定和做法和参议院的规定和做法。科伯恩参议员补充说，他的观点得到了哈奇、塞申斯、格雷厄姆和李参议员的赞同，在国会记录中6月23日。我曾在6月22日提出将其列入记录，当时，在委员会报告提交后，这些文件迟交给了委员会。这些观点不应妨碍参议院迅速审议委员会报告的法案。我不认为参议员科伯恩在国会记录中插入的观点包含任何新的或令人信服的法律分析，支持第1103条在某种程度上违反宪法的观点。他们只是在没有可靠依据的情况下断言，该事项可能会引起宪法关注和“危险诉讼”的风险。正如委员会关于第1103条的报告所述，并在2011年6月20日法律顾问办公室的备忘录意见中重申的，然而，这些断言是不正确的。参议院面前的第1103号法案符合宪法，是国会对总统要求的适当回应。这一问题的核心是两个无可争议的关键点。首先，联邦调查局局长“随意”任职，总统可以以任何理由免职。穆勒局长本人作证说，他是“根据总统的意愿”服务的。第二，这项法案的提出是为了回应总统的要求，即国会对联邦调查局局长的10年法定任期规定一次例外，以便他可以将穆勒局长的任期延长最多两年。事实上，该法案的文本明确规定，穆勒主任只能“应总统要求”继续其任期。这两点很重要，因为它们构成了与任命条款相关的任何宪法分析的核心要素。这项法案并不是要将立法任命强加给总统，也不是要削弱总统的权威。委员会的报告描述了对该法案合宪性评估至关重要的宪法和法律原则：“《美国法典》第18章引用“延长任意服役军官任期的立法不违反任命条款”。法律顾问166、171、1994年。通过1951年的四份独立法律意见书（最近于2011年6月20日再次确认），律政司承认了这一指导原则。《宪法》中的任命条款并没有被触犯，“‘只要总统仍然可以随意解除该官员的职务并作出另一次任命’”《美国宪法》Op.Off。法律顾问2-3，2011年6月20日。委员会报告的法案确保总统保留这一权力。此外，该法案并没有削弱总统的权威。参议员科伯恩的观点既没有讨论联邦调查局局长的“随意”地位，也没有讨论总统的全体罢免权。相反，他的观点断然否定了司法部60年前的广泛法律分析，认为这些观点“不一致”。唯一不一致的是1987年的一个反常观点，该观点于1994年被司法部撤销，在1987年的意见被确定为“无可救药地没有说服力”之后，具有讽刺意味的是，正是这一撤回的意见，一个没有权威的意见，让法案的批评者寻求安慰。从1951年的一份意见开始，再到最近的三份法律备忘录，1994年，1996年，最近的一次是2011年6月20日，司法部批准了延长任期的合宪性，就像法案中为“随意”行政人员规定的那样。参议员科伯恩认为，这些法律顾问办公室意见的价值应该被低估，因为很少有案件涉及这些类型的任期延长。然而，他没有承认，在这一点上缺乏诉讼可能是因为他所依赖的宪法关切根本没有价值。事实仍然是，没有任何案例和有说服力的法律权威支持参议员科伯恩关于该法案违宪的论点。科伯恩参议员的观点实际上忽视了一个事实，即该法案实际上保留了总统的任命权。总统可以在延长2年任期之前、期间或结束时，随时提名并任命另一名联邦调查局局长。该法案不要求总统要求穆勒主任在延长任期的整整2年内继续任职。这取决于总统。这些事实被参议员科伯恩驳斥为与讨论“无关”或“无关紧要”。事实上，它们恰恰相反。这项立法是应总统的要求审议的，这一事实表明，立法部门没有侵犯行政权力。由于第1103号法案是对总统提出的立法要求的直接回应，该立法要求对联邦调查局局长的10年任期限制规定一次性豁免，因此该法案ves to protect the authority of the President to choose who he wants to lead this executive agency. That is wholly consistent with the purpose of the appointments clause. Senator Coburn's attempts to distinguish the limited, relevant case law are also unavailing. As noted in the committee report, Judge Norris's concurring opinion in the case In re Benny, 812 F. 2d 1133, 9th Cir. 1987, is not on point, as that case involved officials who were only removable for cause. Senator Coburn's reliance on Justice Scalia's dissent in Morrison v. Olson, 487 U.S. 654, 1988, is similarly misplaced. The lengthy quote of Justice Scalia's in the minority views is drawn, for example, from a discussion of the separation of powers doctrine, not from Justice Scalia's discussion of the appointments clause. The Morrison decision was about the constitutionality of the independent counsel statute, not a simple extension of a statutory term limit. The Morrison decision held that the statute at issue was constitutional because it did not ``impermissibly undermine the powers of the Executive Branch'' or ``prevent[] the Executive Branch from accomplishing its constitutionally assigned functions.'' That is all the more true for S. 1103, which was requested by the President and does nothing to impinge upon the President's appointment or removal power. In his concluding remarks, Senator Coburn concedes that he is not asserting that S. 1103 is unconstitutional. Instead, Senator Coburn retreats to a concern with what he characterizes as the ``small chance'' of possible litigation. The supposed litigation risk is not a good reason for Senator Coburn's multistage approach when a simple, one-time term extension will accomplish the goal. This is particularly true when the committee reported bill is constitutional. The FBI is not troubled by the supposed exposure ``of Director Mueller's authority to dangerous litigation risk.'' Senator Coburn does not cite any operational concern raised by the FBI or anyone else in law enforcement [[Page S4214]] concerning this supposed litigation risk. The FBI Director and the Department of Justice do not seem concerned about this supposed litigation risk. I am confident that we would have heard from the FBI and other law enforcement groups if there was any concern that this bill would somehow undermine the law enforcement or intelligence operations of the FBI. To the contrary, S. 1103 enjoys the strong support of the National Fraternal Order of Police, the International Association of Chiefs of Police, and the National Association of Police Organizations. The Justice Department does not share Senator Coburn's concerns. The Office of Legal Counsel recently reaffirmed the constitutionality of the bill in a new memorandum dated June 20, which is included in the appendix to the Senate committee report and rests upon 60 years of constitutional interpretation. The White House is not concerned. Neither am I. The bill that the committee reported and I support is constitutional and does not raise any real risk. Senator Coburn has known since he raised his alternative approach that there are two major problems with it. The first problem I have already discussed. It is wrongly predicated on a constitutional problem that does not exist. The bill reported by the Senate Judiciary Committee is a term extension of a limit that Congress imposed on the term of service of the Director of the FBI. Indeed, as the witnesses at our June 8 hearing pointed out, the logic of Senator Coburn's concern could mean that the 10-year limit Congress imposed on the term of service of the FBI Director would itself be constitutionally suspect. The supposed justification for Senator Coburn's cumbersome legislative plan is just wrong. The reported bill, S. 1103, which was initially drafted by Senator Grassley and made more explicit by the committee, is constitutional. The second major problem with Senator Coburn's approach is that it would necessitate the renomination of Director Mueller, and then his reconsideration and reconfirmation by the Senate after enactment of Senator Coburn's alternative bill and before August 3. That is an additional, unnecessary and, I might suggest, dangerous complication. I do not want Americans to be approaching the tenth anniversary of 9/11 without an FBI Director in office. The distractions to Director Mueller created by the extended proceedings on this legislation are damaging enough. The extension of Director Mueller's service leading the FBI should not fall victim to the same objections that have obstructed Senate action on other important presidential nominations and appointments. I have spoken often about the unnecessary and inexcusable delays on judicial nominations. Even consensus nominees have faced long delays before Senate Republicans would allow a vote. Since President Obama was elected, we have had to overcome two filibusters on two Circuit Court nominees who were reported unanimously by the committee. These judges--Judge Barbara Keenan of the Fourth Circuit and Judge Denny Chin of the Second Circuit--were then confirmed unanimously once the filibusters were brought to an end. These are currently 16 judicial nominees who were reported unanimously by all Republicans and Democrats on the Judiciary Committee and yet are stuck on the Senate Executive Calendar because Senate Republicans will not consent to vote on them. These are consensus nominations that should not have been delayed while the Federal courts are experiencing a judicial vacancies crisis. This pattern of delay and obstruction has not been confined to judges. President Obama's executive nominations have been subjected to the same unfair treatment. The first five U.S. attorneys appointed by President Obama were delayed more than 2 months for no good reason in the summer of 2009. These are the top Federal law enforcement officers in those districts and yet it took from June 4 to August 7 before Senate Republicans would consent to their confirmations. They were then confirmed unanimously. The Chairman of the United States Sentencing Commission was similarly delayed unnecessarily for almost 6 months from May 7 until October 21, 2009. He, too, was ultimately confirmed without opposition, but after needless delay. Among a slew of other troublesome examples are these: One Republican Senator objected to a nominee to serve on the Federal Reserve Board of Governors because, according to that Senator, the nominee lacked the necessary qualifications. The nominee was a Nobel Prize winner and MIT economics professor. Another Republican Senator is blocking the confirmation of two SEC Commissioners until he extracts action from the SEC related to a case against the Stanford Financial Group. A group of Senate Republicans have sent a letter to President Obama vowing to oppose any nominee to be Director of the Consumer Financial Protection Bureau. Republican Senators are vowing to block President Obama's nominee to serve as the Secretary of Commerce. In a particularly illustrative case, one Republican Senator lifted his hold on the nomination of the Director of the U.S. Fish and Wildlife Service only after the administration acceded to his demands and issued 15 offshore oil drilling permits. Shortly thereafter, another Republican Senator placed a hold on the very same nomination to force the Interior Department to release documents on the Department's ``wild lands'' policy. It did not end there. When that dispute was resolved, a third Republican Senator reportedly placed a hold on the nominee, demanding a review of the protected status of wolves. That nominee has still not been confirmed. Regrettably, Senate Republicans have ratcheted up the partisanship, limiting the cooperation that used to allow nominations to move forward more quickly. We cannot and should not take risks with this critical term extension for the head of the FBI. I do not want to see another important nomination subjected to holds and delays. I do not want to see another well-qualified national security nominee used as leverage by the Republican Senate minority to extract other unrelated concessions. That is what Senator Coburn's alternative plan invites. I recently outlined the obstruction of key national security-related nominations, the Deputy Attorney General and Assistant Attorney General for National Security. I do not want to see that happen, again, with the nomination of an FBI Director, but we have no guarantee that the President's nomination of an FBI Director would be treated any differently. Republicans played ``chicken'' with a government shutdown earlier this year. We can see the same dynamic developing on the debt ceiling and the budget. Likewise, many Republicans, including their House leaders, who contended that the War Powers Act was unconstitutional when the President was a Republican, are now seeking to use it as a partisan cudgel to diminish this President, with little regard for the damage that does to America, NATO and the effort to end the brutal repression of the Libyan people by Moammar Qadhafi. The Senate is finally this week seeking to complete action on a bipartisan, leadership-supported legislative approach to reforming Senate consideration of presidential nominations. It has taken weeks and months to get this far. Senate Republicans undermined their leadership and failed to support Senator Alexander and Senator McConnell, who were instrumental in developing the Presidential Appointment Efficiency and Streamlining Act, S. 679. The Senate has been stuck trying to complete this bill since June 16, when the majority leader could not even get consent to proceed to the bill. Bills that used to take 2 hours of floor time now consume 2 weeks. Republican Senators who could not be bothered with conducting oversight when a Republican was in the White House are now adamant that the Senate should not streamline any presidential nominations, arguing that doing so would undercut Senate opportunities to conduct what they call oversight. This is just another example of how virtually everything is viewed through a partisan lens since the American people elected President Obama. Senator Coburn has known since we began to consider the President's request to extend the FBI Director's term that his plan could not be considered a viable alternative unless there was an agreement from Senate Republicans to ensure that the Senate would [[Page S4215]] complete its work and have the FBI Director in place at the end of the summer. That agreement would take the form of a unanimous consent agreement in the Senate, entered into by all Senators, and locked in on the Record so that it could not be changed without unanimous consent. That has not occurred. That is the only way to ensure Senate action on a nomination before August 3. The House would also have to agree to such an approach. Senator Coburn has been unable to convince his leadership and the Republican caucus to agree. It may be because some do not want to agree. It may be because some do not want to give up the ``leverage'' such a nomination might provide to them on other matters. Maybe they just do not want to make anything too ``easy'' on this President. Whatever the reasons, no such agreement has been forthcoming in the weeks it has been under consideration. In fact, at the Judiciary Committee business meeting on the bill, when Senator Coburn could not offer the assurances required to lock in prompt and timely consideration of a subsequent nomination of the FBI Director after enactment of legislation and before August 3, he did suggest that his side of the aisle would forego several steps of the standard process for considering nominees. He offered to waive the questionnaire, the background check, and the confirmation hearing on Director Mueller. But this commitment was illusory, because not even all of the Republican members of the Judiciary Committee agreed. Senator Cornyn, having questioned Director Mueller's ``management capacity,'' indicated that he wanted confirmation hearings and the opportunity to ask questions. Of course, the Senator from Texas was within his rights to say so. But that shows the practical difficulties of following Senator Coburn's complicated, two-part scenario with no guarantee of it being completed by August 3. Republican Senators lectured us on the ease with which the majority leader should be able to obtain cloture on a new nomination of Director Mueller. That again makes my point. Without a binding agreement, it could take days to consider the nomination, perhaps a full week. We have just witnessed Senate Republicans filibustering for the first time in American history the nomination of the Deputy Attorney General of the United States. They did that just last month. While Senator Cornyn opined that the renomination of Director Mueller should be able to get 60 votes for cloture, and we should be able to end a filibuster of the nomination on the Senate floor, he also said that he could not control other Republican Senators. To complete action in accordance with Senator Coburn's alternative plan would mean not only passing legislation but the Senate receiving, considering and confirming the renomination of Director Mueller. I was chairman of the Judiciary Committee back in 2001 when the Senate considered and confirmed Director Mueller's initial nomination within two weeks. I worked hard to make that happen. Regrettably, given the current practices of Senate Republicans, and their unwillingness to agree on expedited treatment for President Obama's nominations, it is foolhardy in my judgment to think that all Senate Republicans will cooperate without the binding force of a unanimous consent entered in the Record. Let me mention just one more recent example. Consider the time line of the nomination of the Assistant Attorney General for the National Security Division at the Department of Justice. The nominee was approved unanimously by the Senate Judiciary Committee and unanimously by the Senate Select Committee on Intelligence, and approved unanimously by the Senate just yesterday. That nomination took 15 weeks for the Senate to consider--and she was approved unanimously. It took more than a month just to schedule the Senate vote after the nomination was reported unanimously by the Senate Select Committee on Intelligence, and that was 2\1/2\ weeks after it was unanimously reported by the Senate Judiciary Committee. This was a nominee with whom many of us were familiar and who faced no opposition. Of course, in the case of the FBI Director, there is no necessity to require a new nomination. The simple one-time extension contained in S. 1103 does the job. It provides all the authority needed for the President to ask Director Mueller to stay on and for him to do so without additional action by the Senate. The separate renomination of Director Mueller is not required. As I have said, all Senate Democrats are prepared to take up and pass S. 1103, and send it to the House of Representatives for it to take final action before August 3. That is what we should be doing. We should do that now, before the Fourth of July recess. There is no good reason for delay. All that is lacking is Senate Republicans' consent. So, as they stall in moving legislation to respond to President Obama's request to extend Director Mueller's term, Senate Republicans will not commit to the unanimous consent request necessary to allow Senator Coburn's alternative to become a possibility. Seven of the eight Republican members of the Senate Judiciary Committee voted against the bill to extend Director Mueller's term. Senator Coburn had said that if his alternative was not adopted by the committee, he would vote for the bill, but then he changed his mind and voted against. He then said that he will vote for the bill, S. 1103, when it is considered by the Senate, but Senate Republicans--perhaps including Senator Coburn himself--are now objecting to considering it. We have lost another two weeks since the bill was reported by the Judiciary Committee. Finally, I observe that this is not the only matter the Senate needs to consider before August 3. There is the matter of the United States' default unless the debt ceiling is raised by that time. There is the need to pass the America Invents Act, as passed by the House, to spur innovation and jobs. There are currently 10 executive nominations ready for Senate action reported by the Judiciary Committee and 18 judicial nominations ready for final consideration to address the judicial vacancies crisis. There is much to do, little time, and even less cooperation. This important legislation, S. 1103, would fulfill the President's request that Congress create a one-time exception to the statutory 10- year term of the FBI Director in order to extend the term of the incumbent FBI Director for 2 additional years. Given the continuing threat to our Nation, especially with the tenth anniversary of the September 11, 2001, attacks approaching, and the need to provide continuity and stability on the President's national security team, it is important that we respond to the President's request and enact this necessary legislation swiftly. The incumbent FBI Director's term otherwise expires on August 3, 2011. I urge the Senate to take up this critical legislation and pass it without further delay. ____________________