seen we have seen roads and bridges in the economic stimulus package that can out of washington in early 2009. but when we tally up the list of the unmet needs in this generation it's an unimpressive list and the sewage treatment facilities, the transit, the

chair will administer the oath.

the vice president: do you solemnly swear that you will support and defend the constitution of the united states against all enemies, foreign and domestic; that you will bear true faith and allegiance to the same; that you take this obligation freely, without any mental reservation or purpose of evasion; and that you will well and faithfully discharge the duties of the office on which you are about to enter, so help you god? mr. heller: i do. the vice president: congratulations, senator. mr. heller: thank you very much. o

speak in morning business for up to 15 minutes. the presiding officer: without objection. mr. sessions: mr. president, i want to speak in opposition to the nomination of james cole to be deputy attorney general of the united states who we will be voting on a little later this afternoon. despite president obama's recess

appointment of mr. cole, who had had a number of opposition statements in the committee and was not looking at smooth sailing, i do believe that we should oppose his confirmation and his permanent appointment. based on some concerns i have with his record, specifically his criminal justice view on the war on terror, which i believe is utterly wrong and his questionable decisions as an outside consultant for a.i.g., the big insurance company that had to be bailed out to the tune of, i think, $170 billion in its last bailout matter. he was an independent

consultant, supposed to be monitoring that company for other errors they had made previously, and so that -- that is a concern to me. i served 15 years in the department of justice as a united states attorney for almost 12 and as an assistant united states attorney, i respect the department, i love the department of justice, but i'm getting concerned about it and i'm not happy with some of the decisions and philosophy that are emanating from the department. i believe they do not reflect the highest standards and qualities that we expect from that great department, and this nominee has a lot of good qualities. i believe he has a number of strengths that as management has some experience in the department that i would give him

credit for. but at this point in history, i believe that his approach, particularly to the war on terror, along with the attorney general's approach to the war on terror, are not good. i have just about had enough of it, and i'm just going to say this. i'm not voting for another nominee, and i'm not going to vote for this one who spent their time defending terrorists. before they go to the department, it's all right to defend an unpopular person, but 13-16 members of the department of justice, political appointees by this administration have had as their background defending terrorists, including the solicitor general who is going to be coming up, i guess, in committee this week, and also aclu. and so you get this much of a

tilt in the leadership of the department, it gives me great concern that the great department i loved and respected is getting off base. so i think it's important to note that we are hearing warnings right now that one of the top priorities of the department of justice must be the recent warning we received that the terrorist groups -- quote -- "almost certainly" -- close quote, will try to avenge the death of osama bin laden and the continuing economic crisis that faces our country. i believe that the president should be nominating proven prosecutors, prosecutors of terrorists, frankly, for top positions in the law enforcement agency, the united states department of justice. i don't think we need any more terrorist defense attorneys.

when i was united states attorney, i hired a lot of united states assistant attorneys. i look for proven prosecutors wherever i could find them. i didn't go around and look for people who spent their spare time volunteering to defend terrorists or writing papers defending criminals. that's just the way i see it, frankly. i have to be honest about it. so we have had this one, we have had that one, we have had another and another and another. now 13-16 have been appointed to the department of justice who have had this background. defending the unpopular is not disqualifying. we voted and i voted for a number of people in the department who have been involved in this kind of defense efforts, who file lawsuits against president bush. they really thought they were really doing something great. i guess they didn't turn down the evidence if it helped in any

way lead to the location of osama bin laden, but we do have standards about how we should gather evidence and lines should not be crossed, but that doesn't mean we're not in a war. it doesn't mean that the people who are attacking us are common criminals that need to be tried in civilian courts. they're at war with us. bin laden said he's at war with us. he declared war on us. you don't treat prisoners of war, captured enemy combatants like you treat common criminals. this is fundamental. i served in the army reserve a number of years, some of that time as a j.a.g. officer. i taught prisoners of war, how to treat prisoners, what the standards of the field manual are. don't claim to be a great expert at it, but i did it, had some

experience in it. mr. cole consistently, some of these nominees to the department take the view that terrorists are criminals and not unlawful combatants. let me just say briefly, if you catch a person, a murderer, a rapist or a -- any kind of criminal virtually of any kind, when they're taken into custody, as the presiding officer knows who is a good prosecutor himself, they have to be, before you can interview them, once they are in custody, you have to give them miranda warnings. that authorizes, tells them -- basically, it tells them you don't have to make any statements at all.

it basically says if you're an idiot, you'll make statements. you're entitled to a lawyer. if you don't have any money, they'll appoint you a lawyer. you have to go before a magistrate in a matter of hours. you're entitled to discovery of the government's case in short order and you're entitled to a speedy trial, and you're entitled to prowl around in the government's case and find all the evidence that the government has. whereas in war, that's not so. a classic case with ex parte inquirying in world war ii where german saboteurs were dropped off on our coast from a submarine and they were going to sabotage the united states of america. they were apprehended, taken to military tribunal, tried and executed in a matter of months, and the case went to the supreme court ex parte querin and was

affirmed. there has never been any doubt that unlawful combatants can be tried for their crimes in military courts. it's done all over the world. it's an established principle. now, let's get one thing straight. if you're a lawful combatant and you are captured on the battlefield, whether you're a japanese soldier or a german soldier or an italian soldier and you have complied with the laws of war and you wear your uniform and you don't attack deliberately men, women and children, civilians and try to kill them and you comply with other rules of war, you can't be tried, you can just be detained until the war is over, but you don't get lawyers. you don't get trials and discovery and all of that sort of thing. but if in conducting your

military campaign, you violate the internationally respected laws of war, you cannot only be held as a prisoner of war, but the nation that's holding you can try you for violation of the laws of war. so that's how these 9/11 attackers who didn't wear uniforms, who attack deliberately civilians perfectly fit to be tried as war criminals, unlawful warriors. at war, nevertheless, they have announced their intention to destroy the united states, to attack the united states. they said they were at war with us, but they have done it in an unlawful way and they can be tried in military commissions. this allows the military to conduct interrogation according to the laws of war, and over a period of months even.

years even. and sometimes after months a prisoner will start talking. you never know why they start talking. but to deny ourselves the right to allow those kinds of things to happen, to say that we have to try these individuals like malid sheikh muhammed in civil court is clearly an error. that's the attorney general's position. he testified about it last week when i questioned him before the judiciary committee. he indicated -- he said it still remains the policy of the department of justice that persons who are arrested as terrorists are presumed to be tried as in civilian court. although congress has passed a law prohibiting moneys to be expended for that on the 9/11

attackers and the attorney generals in a huff had to say that khalid sheikh muhammed will be tried in guantanamo under military procedures as a -- an unflawfl combatant. but he doesn't like it, that's not his view. it looks like everybody he wants to hire to be in the department of justice agrees with that erroneous view. it's not a close question. this is not a close question. there is no reason a terrorist who is apprehended in the united states ought to be provided lawyers and miranda warnings. they are combatants. they are not common criminals. and thinking this way has caused dangerous confusion. as our troops and intelligence community continue to work night and day to keep our country

safe, it's imperative that we view the war on terror as a real war and not a criminal matter and regard those who wish to perpetrate terror on this country as enemy combatants, not plain criminals. like many in the administration, mr. cole disagrees. in 2002, after 9/11, not long, he wrote an op-ed, published it, criticizing then-attorney general john ashcroft's decision to try the 9/11 terrorists in military commissions. they researched the law. attorney general ashcroft knew what he was doing. they decided they were going to try these individuals by military commissions. at his hearing -- but he had written an op-ed attacking the attorney general for it, so now that's the man we have got to

nominate for deputy attorney general of the united states. at his hearing last congress, mr. cole repeated a prevailing and confusing justice department position that decisions regarding whether captive terrorists should be tried in civilian courts or in military commissions -- quote -- should be made on a case-by-case basis based on all the relevant facts and circumstances available at a time of a suspect's capture." close quote. is this going to happen in yemen? afghanistan, pakistan, wherever else they may be? in the united states? it's not a practical policy, because you have to tell the individuals who are making the apprehension what the rules are. and as the attorney general said, they still adhere to the view that the presumption is

that the individual will be tried in civilian court. therefore, the presumption is that within a short time of their being taken into custody, they should be given miranda warnings, offered a lawyer and set for a preliminary court appearance, which could reveal to all the other terrorists exactly that their partner in war has been captured. and allow them to escape. so it's just a wrong view. and why they persist in this is beyond my understanding. congress understands it. the american people do also. this administration has established a policy that declares there is a presumption of civilian trials and -- but has -- and has failed to articulate a clear policy for designating captured terrorists as enemy combatants or criminals. so i'm -- i remain very

unconvinced that the next captured terror suspect will not be given the rights of a common criminal and told he has the right to remain silent, to the detriment of crucial intelligence gathering. 9/11 commission, in one of their most significant findings, was that intelligence gathering, intelligence possession about what the enemy is doing is "the" best way to protect our country, not prosecuting them after the fact. so telling someone they have a right to remain silent and they've got a lawyer that's going to insist that they not make any statements, does that help us gather intelligence? well, if it's required by the u.s. constitution, we will do it. we'll just plain do it, regardless, but it's not required by law, history or the constitution. law, history and the constitution allows them --

these enemy combatants to be tried in military commissions and they don't have to be given miranda warnings, which was a court created rule a number of years ago that never was understood before and is not practiced, to my knowledge, in any other nation in the whole world. and, of course, all of this provides poor guidance for our law enforcement, military and intelligence officers as they go about our -- their efforts, and it's a grievous and dangerous mistake to continue this policy. it seems to me that mr. kohl and attorney general holder are cut from the same cloth on this issue. i'm uneasy about these two individuals holding the top two positions in the department of justice. and now the solicitor general seems to be the third one that

will be coming along as one of the highest-ranking people in the department. their policy views appear to control the department of defense. in other words, if they say this is the rule, the department of defense has to give the miranda warnings and so forth if they're involved in a capture and it directly controls the f.b.i., which is part of the department of justice. as the acting second in command at justice department, mr. cole would play a lead role in decision making in the terror prosecutions throughout the country. the justice department's continued insistence on a presumption of civilian trials for terrorists confirms my concerns that mr. cole has adhered to the failed pre-9/11 law enforcement approach to terrorism, approach that the 9/11 commission and the nation

as a whole recognized was in error and should be changed. i thought we clearly made that move. apparently we haven't. also of concern, from 2003-2007, mr. cole represented a saudi prince against insurance carriers and september 11th victims who alleged that the saudi prince helped finance terrorists. reportedly, mr. cole's client was linked through treasury department documents to the financial support of extremist groups through the al harah mane foundation, a saudi charity that has diverted funds to al qaeda before and after 9/11. while attorneys are free to and should be free to represent unpopular clients, mr. cole is one in a long line of