S. Hrg. 110-478
CONFIRMATION HEARING ON THE NOMINATION OF MICHAEL B. MUKASEY TO BE
ATTORNEY GENERAL OF THE UNITED STATES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
----------
OCTOBER 17 AND OCTOBER 18, 2007
----------
Serial No. J-110-51
----------
Printed for the use of the Committee on the Judiciary
CONFIRMATION HEARING ON THE NOMINATION OF MICHAEL B. MUKASEY
TO BE ATTORNEY GENERAL OF THE UNITED STATES
U.S. GOVERNMENT PRINTING OFFICE
39-985 PDF WASHINGTON DC: 2008
---------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866)512-1800
DC area (202)512-1800 Fax: (202) 512-2250 Mail Stop SSOP,
Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Michael O'Neill, Republican Chief Counsel and Staff Director
C O N T E N T S
----------
OCTOBER 17, 2007
STATEMENTS OF COMMITTEE MEMBERS
Page
Cardin, Hon. Benjamin L., a U.S. Senator from the State of
Maryland, prepared statement................................... 407
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 436
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 4
PRESENTERS
Lieberman, Hon. Joseph I., a U.S. Senator from the State of
Connecticut presenting Michael B. Mukasey, Nominee to be
Attorney General of the United States.......................... 8
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York presenting Michael B. Mukasey, Nominee to be Attorney
General of the United States................................... 6
STATEMENT OF THE NOMINEE
Mukasey, Michael B., of New York, Nominee to be Attorney General
of the United States........................................... 9
Questionnaire................................................ 12
OCTOBER 18, 2007
STATEMENTS OF COMMITTEE MEMBERS
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin, prepared statement.................................. 418
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 159
prepared statement........................................... 438
WITNESSES
Canterbury, Chuck, National President, Fraternal Order of Police,
Washington, D.C................................................ 206
Hutson, John D., Rear Admiral, JAGC, USN (Ret.), President and
Dean, Franklin Pierce Law Center, Concord, New Hampshire....... 208
Johnsen, Dawn, Professor, Indiana University School of Law,
Bloomington, Indiana........................................... 210
Martin, John S., Member, Martin & Obermaier, LLC, New York, New
York........................................................... 218
Shaw, Theodore, Director, Counsel, and President, NAACP Legal
Defense and Educational Fund, Washington, D.C.................. 213
Thornburgh, Dick, former Governor of Pennsylvania, Of Counsel,
K&L Gates, Washington, D.C..................................... 203
White, Mary Jo, Partner, Debevoise & Plimpton, LLP, New York, New
York........................................................... 215
QUESTIONS AND ANSWERS
Responses of Michael B. Mukasey to questions submitted by
Senators Leahy, Kennedy, Biden, Kohl, Feinstein, Feingold,
Schumer, Durbin, Cardin, Whitehouse, Grassley, Kyl, Graham,
Levin, and Dorgan.............................................. 231
SUBMISSIONS FOR THE RECORD
Canterbury, Chuck, National President, Fraternal Order of Police,
Washington, D.C., statement.................................... 402
Department of Justice, Federal Bureau of Investigation, non-
disclosure statement (sample).................................. 410
Durbin, Hon. Richard J., Hon. Patrick J. Leahy, Hon. Edward M.
Kennedy, Hon. Joseph R. Biden, Jr., Hon. Herb Kohl, Hon. Dianne
Feinstein, Hon. Russell D. Feingold, Hon. Charles E. Schumer,
Hon. Benjamin L. Cardin, and Hon. Sheldon Whitehouse, joint
letter to Judge Mukasey and his response....................... 411
Hutson, John D., Rear Admiral, JAGC, USN (Ret.), President and
Dean, Franklin Pierce Law Center, Concord, New Hampshire,
statement...................................................... 421
Johnsen, Dawn, Professor, Indiana University School of Law,
Bloomington, Indiana, statement and attachment................. 425
Levin, Hon. Carl, a U.S. Senator from the State of Michigan and
Chairman, Committee on Armed Services, letter to Judge Mukasey. 440
Martin, John S., Member, Martin & Obermaier, LLC, New York, New
York, statement................................................ 442
Mukasey, Michael B., of New York, Nominee to be Attorney General
of the United States, statement................................ 444
Shaw, Theodore, Director, Counsel, and President, NAACP Legal
Defense and Educational Fund, Washington, D.C., statement...... 447
Specter, Hon. Arlen:
letter to Judge Mukasey and his response..................... 458
letter to Hon. Richard B. Cheney, Vice President of the
United States, and his response............................ 463
Thornburgh, Dick, former Governor of Pennsylvania, Of Counsel,
K&L Gates, Washington, D.C., statement......................... 469
Washington Post, October 12, 2007, editorial..................... 474
White, Mary Jo, Partner, Debevoise & Plimpton, LLP, New York, New
York, statement................................................ 475
NOMINATION OF MICHAEL B. MUKASEY, OF NEW YORK, TO BE ATTORNEY GENERAL
OF THE UNITED STATES
----------
WEDNESDAY, OCTOBER 17, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 10 a.m., in room
SH-216, Hart Senate Office Building, Hon. Patrick J. Leahy,
Chairman of the Committee, presiding.
Present: Senators Leahy, Kohl, Feinstein, Feingold,
Schumer, Durbin, Cardin, Whitehouse, Specter, Hatch, Grassley,
Kyl, Sessions, Graham, Cornyn, Brownback, and Coburn.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Before we start, just so everyone will
understand, something that seems to be a relatively new
phenomenon, at least in the years I have been in the Senate,
are these demonstrations--choreographed, spontaneous
demonstrations at hearings.
Just so everybody understands, I want everybody to be able
to watch this hearing. I do not want anybody in the audience to
be blocked by anyone for any reason whatsoever. I want
everybody to be able to watch it comfortably. I am directing
the police that if anybody stands up and blocks the view of
anybody in this hearing, that person will be removed.
Now, if there are any demonstrations either for or against
a position I might take, for or against a position Senator
Specter or any other Senator might take, for or against a
position that any witness might take, that person will be
removed. I just want to make that very clear. I am sure it is
not going to be necessary. I am sure everybody is going to
treat this hearing with decorum. But I recall seeing Senator
Durbin here, we had this situation recently in an
Appropriations Committee hearing.
Judge, please feel free to come up and sit there.
Judge, I think I have this wrong. I did not realize on
introducing, I think Senator Schumer will introduce you from up
here, and Senator Lieberman will introduce you from where you
are sitting. So if we could do that musical chair and have you
go back.
[Laughter.]
Chairman Leahy. I will give my statement on this, and then
we will have Senator Schumer and Senator Lieberman make
introductions.
Early this year, as we began our consideration of the
United States Attorney firing scandal, I observed that we faced
the most serious threat to the effectiveness and
professionalism of the United States Department of Justice
since the days of the Saturday Night Massacre, when President
Nixon forced the firing of Special Prosecutor Archibald Cox.
But I noted that unlike during Watergate, this time there
was no Elliot Richardson, there was no William Ruckelshaus
around to defend the independence of Federal prosecutors.
Instead, high officials at the Department and their staffs were
complicit with White House political operatives. Now the entire
senior leadership and their staffs have resigned, as have Karl
Rove and his two top aides at the White House.
The crisis of leadership that led to these resignations has
taken a heavy toll on the tradition of independence that long
guided the Department of Justice and protected it from
political influence. I have been here with six Presidential
administrations, Republican and Democratic. In every one of
them, the Department of Justice was protected from political
influence up until now.
The firing of the U.S. Attorneys who are the chief Federal
law enforcement officers in their districts sent a message to
all U.S. Attorneys and the career prosecutors working in those
offices that, as sworn testimony we received said, only ``loyal
Bushies'' would keep their jobs or advance in their careers.
This crisis has taken a heavy toll on morale at the Department
and in confidence among the American people. As a former
prosecutor, I know that the dismay runs deep, from the career
attorneys at Justice and in our U.S. Attorney's Offices
straight down to the police officer on the beat.
I start this hearing as I did the hearing that this
Committee held on the last Attorney General nomination, hoping
to be able to support the nominee. After that hearing in 2005,
I decided I could not vote for the confirmation of Alberto
Gonzales. I did that noting, as Justice James Iredell had in
1792, that the person who serves as Attorney General ``Is not
called Attorney General of the President, but Attorney General
of the United States.''
There is good reason why the rule of law requires that we
have an Attorney General and not merely a Secretary of the
Department of Justice. This is a different kind of Cabinet
position. It is distinct from all others. It requires greater
independence. The departing Attorney General never understood
this. Instead, he saw his role as a facilitator for the White
House's overreaching partisan policies and politics.
Now, restoring the Department of Justice--and I want to
restore it. I have enormous respect for the Department of
Justice. I have from my days as a law student here in
Washington at Georgetown. But it begins by restoring integrity
and independence to the position of Attorney General of the
United States.
The Attorney General's duty is to uphold the Constitution
and the rule of law and not work to circumvent it. Both the
President and the Nation are best served by an Attorney General
who gives sound advice, takes responsible action, without
regard to political considerations--not one who develops
legalistic loopholes to serve the ends of a particular
administration.
The Attorney General cannot interpret our laws to mean
whatever the current President, Republican or Democratic, wants
them to mean. The Attorney General is supposed to represent all
the American people, not just one of them.
Regrettably, the former Attorney General enabled this
administration to continue policies that are in fundamental
conflict with American values and decades of law, sound
military practice, international law, and human rights. We see
it demonstrated yet again in the recent revelation that even
after waging and losing a public battle to resist congressional
efforts to outlaw torture and honor our obligations, this
administration, enabled by the Justice Department, apparently
secretly struggled to redefine ``torture'' and ``cruel,
inhuman, and degrading treatment'' to allow the very conduct of
torture that this Congress had outlawed.
We have seen departures from this country's traditions,
practices, and established law in connection with interrogation
methods that we condemn when they are used by others. Likewise,
we have seen political influence corrupt the Department of
Justice when it has departed from its longstanding practices
and tradition, practices that historically served to insulate
it from partisanship in law enforcement. This lawlessness led
to Abu Ghraib, Haditha, and Blackwater. And valuing loyalty
over competence and accountability led to the bumbling
aftermath of Hurricane Katrina, the failure to care for wounded
veterans at Walter Reed, and the purge among U.S. Attorneys.
There is much that has gone wrong that this administration
has stubbornly refused to admit or correct. When President Bush
ascribed Attorney General Gonzales's resignation to supposed
``unfair treatment'' and having ``his good name dragged through
the mud for political reasons,'' ignoring the fact that
numerous prominent Republicans had called for his resignation,
he mischaracterized the clear facts about the U.S. Attorney
firing scandal that decimated morale at the Justice Department.
To reclaim our moral leadership, we need to acknowledge
wrongdoings. These hearings are about a nomination, but the
hearings are also about accountability.
We do need a new Attorney General. We need someone who
understands that the responsibilities and duties of that office
are not to be a validator for the administration. We are
reminded by the examples of Elliot Richardson and William
Ruckelshaus from the Watergate era--more recently the examples
of James Comey and Jack Goldsmith and Alberto Mora--that law
enforcement officials have to enforce the law without fear or
favor. and not in reaction to political benefactors but in
reaction only to what is the law.
We are the most powerful Nation on Earth. We are the most
powerful Nation the world has ever known, a country that
cherishes liberty and human rights, a Nation that has been a
beacon of hope and freedom to the world. We face vicious
enemies, and we need the confidence and the resolve to
understand that we can and must defeat them without sacrificing
our values and stooping to their level.
So this is a job interview for a big job--a big job that
has become even bigger. Along with helping keep Americans safe
and protecting their rights and combating crime and enforcing
the law and managing more than 100,000 employees, and a budget
that goes into the tens of billions of dollars, the next
Attorney General has to begin to regain the public trust. And I
think your nomination can begin to repair the process, and I
hope all members of the Judiciary Committee, Democrats and
Republicans alike, will join to restore the constitutional
checks and balances that have been systematically eroded. And I
hope we can begin that process this week.
So I welcome the nominee. I appreciate the time, Judge,
that you and I have spent in private conversation, and I
enjoyed meeting your wonderful family this morning. So I hope
you will help us restore the Department of Justice to be worthy
of its name. The American people expect that. But you know
what? Americans deserve no less.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
I have gone over my time, but I think this is an important
issue, and I yield to Senator Specter for whatever amount of
time he wants.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman. This is a very
important confirmation hearing, I believe more important than
most confirmations of the Attorney General, really
approximating the importance of a Supreme Court confirmation
hearing. And I say that for a number of reasons: first, the
Department is dysfunctional; second, there has been a broad
expansion of executive power, necessary in part because we are
at war fighting a serious international enemy; and, third,
because it takes the Supreme Court and the other Federal courts
so long to intervene that the opinions of the Attorney General
to guide the executive branch on what is constitutional is more
important in this setting.
We start with a Department which urgently needs a
restoration of integrity and honesty and independence. We have
seen a situation where there have been serious allegations of
political influence, and it is very important that those
matters be cleared up and that the new Attorney General
function on the hiring on merit and the firing for cause.
We have seen broad expansion of executive authority, and
understandably so when we are at war. But at the same time,
there has to be a balancing of constitutional rights and civil
liberties.
I supported the PATRIOT Act, chaired the Committee that
produced it and managed it on the floor, supported the Protect
America Act. But at the same time, I am very concerned about
what is happening with constitutional rights. The detainee
situation is still a matter of some urgency. It casts a shadow
over the administration of justice in America and holds us up
for very substantial criticism worldwide.
We have seen a Terrorist Surveillance Program put into
effect without telling the Chairman or Ranking Member of the
Judiciary Committee. A matter of that constitutional magnitude
ought to at least be shared with the top officials, if not us
then the Speaker of the House and the Majority Leader, to have
some congressional input and some congressional oversight.
And we have seen the signing statements where the President
has agreed when we passed the PATRIOT Act to accommodate
detailed oversight, and then on a signing statement says, ``I
may not have to do that, may not be willing to do that under my
Article II powers,'' or on the celebrated rapprochement between
President Bush and Senator McCain over interrogation tactics,
carefully negotiated, and then a signing statement.
The conventional understanding of constitutional authority
is when the Congress enacts legislation and presents it to the
President and he signs it, that that is the law that he has to
faithfully execute under the Constitution. And I am awaiting an
Attorney General who will tell the President some things he may
not like to hear.
We have a judicial system which functions in accordance
with our traditions, but we still have not resolved the
detainee issue. Congress has legislated on it, and you have
Combatant Status Review Tribunals which are a joke. You can
have a substitute for habeas corpus, but it has to be
meaningful. And now the administration has come forward with
yet another effort there, I think, to foreclose a Supreme Court
decision which is imminent, with five Justices having granted a
petition for re-argument on the detainee issue.
There are so many matters to take up in this hearing that I
think it is likely to be longer than most. We need to examine
the nominee's attitude on a reporter's privilege. Can the
Department of Justice live with a shield for reporters with the
exception of national security matters on a balancing test?
What would Judge Mukasey have to say about the evolving
approach of the Department of Justice to demand waivers, subtly
or by virtual compulsion in the face of the attorney-client
privilege?
And as we are proceeding in this hearing room, the Senate
is engaged in debates on the appropriations process, and there
again is a challenge, this time acquiesced in perhaps by the
Congress. The Appropriations Committee came up with
legislation, a bill for Commerce, State, and Justice, and then
there is a move to recommit to the President's figure, not to
use the figure established by the Committee or by the Senate.
And if we succumb to that, that will be a further enlargement
of executive authority.
At 11 o'clock, the Senate will take up the appropriations
bill on Labor, Health and Human Services, and Education, where
I am the Ranking Member, so I will have to be in and out, but
in my absence will be watching closely and participating
extensively because this is such a very, very important matter.
Thank you, Mr. Chairman.
Chairman Leahy. Well, thank you, Senator Specter. I should
also note--and I think I mentioned this to you--that Senator
Kennedy had surgery over the weekend and is recuperating at
home, and that is why he is not here. He called us and made
that clear.
What I was going to do is have Senator Schumer, who is from
New York, introduce you, and after he does, I am going to ask
Senator Lieberman, who was your classmate, and either he helped
you through law school or you helped him through law school,
introduce you.
Senator Schumer, go ahead.
PRESENTATION OF MICHAEL B. MUKASEY, NOMINEE TO BE ATTORNEY
GENERAL OF THE UNITED STATES, BY HON. CHARLES E. SCHUMER, A
U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman, and thank you for
the honor of introducing a fellow New Yorker at today's
hearing. I congratulate Judge Michael B. Mukasey on his
nomination to be the 81st Attorney General of the United
States.
I want to also welcome your family members who traveled
here for this important day: your wife, Susan; your children,
Marc and Jessica. I am sure you all are very proud of your
husband, father, and other relations that I know are here as
well.
Judge Mukasey has had a long and illustrious career that I
can give only the briefest of highlights here. Born and raised
in the Bronx, Judge Mukasey graduated from Columbia College and
from Yale Law School, where he served on the Board of Editors
for the Yale Law Review. Then he served for a number of years
in both private practice and the U.S. Attorney's Office in the
Southern District of New York where he rose to become chief of
the Official Corruption Unit.
Starting in 1988, and for 18 years, Michael Mukasey was a
Federal district court judge for the Southern District of New
York, culminating in his serving as chief judge. There he
presided over some of the most important and historic cases of
the day, including the case of Omar Abdel Rahman, known as the
``blind sheikh,'' Jose Padilla, and many others. All the while,
Judge Mukasey earned a reputation for efficiency, fairness, and
integrity.
Even those who did not always receive the benefit of a
judge's favorable ruling--of a favorable ruling, have been
quick to describe the judge's basic fairness and decency. Upon
his retirement from the bench, one of Jose Padilla's lawyers
said, ``I admire him greatly,'' and described herself as
``another weeping fan.''
Another Padilla lawyer has said, ``I don't always agree
with where he comes out, but I'm always happy to draw him as a
judge. You are going to get your day in court.'' He went on to
say, ``His sense of fairness and due process, it's more than
intellectual. It's really down to the genetic level. It's in
his DNA.''
There are many such testimonials for Judge Mukasey from
people he would not agree with politically. But none of Judge
Mukasey's experiences, as varied and as valuable as they have
been, can prepare him fully for the job that lies ahead. If
confirmed, his task will be no less momentous and no less
difficult than that facing Edward Levi, when he took the reins
of John Mitchell's Justice Department after Watergate, because
he will inherit an agency experiencing its greatest crisis
since Watergate.
By every account, the Justice Department is leaderless and
rudderless. It is dysfunctional and in disarray. It is
demoralized and decimated.
Our investigation this year demonstrated the Department's
prior leadership sorely lacked credibility, competence,
independence. Against that backdrop, and with only 14 months
left, the Department does not now need a series of bold
initiatives; rather, it needs steady leadership.
This is, we might say, a rebuilding year. The most
important qualities we need in an Attorney General right now
are independence and integrity, and looking at Judge Mukasey's
career and his interviews that we have all had with him, it
seems clear that Judge Mukasey possesses these vital
attributes.
The bottom line is this: There have been many conservative
Department lawyers who are honorable and showed allegiance to
the rule of law. Former Deputy Attorney General Jim Comey comes
to mind. So does the former head of the Office of Legal
Counsel, Jack Goldsmith. And as we now know, even John
Ashcroft, much maligned for so long, showed genuine courage and
conviction at important moments when the rule of law might have
fallen victim to those, some in the administration, who
disrespected the Constitution.
I did not agree with these men on many or even most policy
issues--Comey and Goldsmith. I have no illusions about Judge
Mukasey either. From talking with him, it is clear that many of
us are going to disagree with many of his views, and with some
quite strongly. But at this time, the most important question
is this: Will Judge Mukasey be independent enough and
courageous enough to stand strong, even against the man who
nominated him, if that is what the law requires?
Former Deputy Attorney General Jim Comey gave an eloquent
speech to the National Security Agency in the spring of 2005,
and his words are worth noting as we consider the nomination of
Judge Mukasey. Comey said this: ``It is the job of a good
lawyer to say yes. It is as much the job of a good lawyer to
say no. `No' is much harder. `No' must be spoken into a storm
of crisis, with loud voices all around, with lives hanging in
the balance. `No' is often the undoing of a career. And often
`no' must be spoken in competition with the voices of other
lawyers who do not have the courage to echo this.
And so yesterday I asked Judge Mukasey, and I will ask him
again today, this question, and I will be one more minute, Mr.
Chairman: If confirmed, will you have the courage to look
squarely into the eyes of the President of the United States
and tell him no if that is your best legal and ethical
judgment? Judge Mukasey then looked me in the eye and assured
me, ``Absolutely. That is what I am there for.'' He also
assured me he will go back and re-examine the legal opinions
that underlie various controversial administration policies--
Chairman Leahy. Senator Schumer, I do not mean to cut you
off, but we are going to have to have a break because of the
Dalai Lama. Are you going to take much longer? Otherwise--
Senator Schumer. No. About 30 seconds, Mr. Chairman.
He also assured me he will go back and re-examine the legal
opinions that underlie various controversial administration
policies, such as warrantless wiretapping, detention, and
torture. Further, he assured me and I trust he will assure this
Committee that he will be a voice for working with the Congress
rather than going at it alone.
In these answers, Mr. Chairman, lies the hope we have a
nominee, albeit conservative, who will put the rule of law
first, who will earn the respect of the country, and--
Chairman Leahy. Thank you, Senator Schumer.
Senator Schumer.--who will restore the Department to its
full promise. I expect this hearing will demonstrate that this
hope is justified.
Chairman Leahy. Senator Lieberman?
PRESENTATION OF MICHAEL B. MUKASEY, NOMINEE TO BE ATTORNEY
GENERAL OF THE UNITED STATES, BY HON. JOSEPH I. LIEBERMAN, A
U.S. SENATOR FROM THE STATE OF CONNECTICUT
Senator Lieberman. Thank you very much, Mr. Chairman,
Senator Specter. It is an honor to introduce Michael Mukasey to
this Committee, to follow the excellent introduction of Senator
Schumer. One might say that Senator Schumer gets this privilege
for reasons of proximity because he is the Senator from New
York. Judge Mukasey is from New York. I think I am here for
reasons of longevity.
Forty-three years ago this fall, Michael Mukasey and I
entered Yale Law School, and as fate would have it, we ended up
in the small group, as we called it, in that first semester.
Most of our courses were lectures. We were in a small group of
12 or 15 students. We got to know each other very well. It was
Contracts. We had a young faculty member named Robert Bocking
Stevens, who was from England, and he had a charming way of
questioning one of us--tough, demanding. Let's say he was
questioning me. He would end his questioning. I would relax,
breathe a deep sigh I had survived that round of questioning.
He would go to Mike Mukasey. And then when I was least
suspecting, he would come back, whirl around and say, ``Now,
back to you, Mr. Lieberman.'' It was a hair-raising experience.
I want to say that right there, 43 years ago, I saw Mike
Mukasey, and I see essentially the same person today. His
answers to that tough law professor were always responsive. You
may not agree with him all the time. I am sure members of the
Committee will not agree with him on some things. But you will
always feel after the hearings that you are beginning this
morning that he has given you a reasoned answer, he has thought
about it, and he is not hesitant to reach an opinion.
Second, I would say that the person I met 43 years ago was
a young man who was smart, who was thoughtful, who was hard-
working, who had kind of a solid center about him as a person,
who had a great sense of humor and a ready smile. And it is
great to be able to say that 43 years later this is exactly the
same kind of person who comes before you as nominee for
Attorney General--wiser from experience, apparently, slightly
older, but nonetheless with the same strengths.
He comes with the experience of more than two decades as a
prosecutor, a judge, a private practitioner, which Senator
Schumer spoke to, and I will not repeat.
I would say two things about this. First, this is a man of
the law, not a man of politics. In fact, as I have thought
about it, it is hard to think in recent memory of a nominee for
Attorney General who comes to the office, comes to this hearing
with fewer political and personal contacts to the President who
has nominated him than Judge Michael Mukasey.
Second, he comes with extraordinary relevant experience in
the fundamental questions that challenge us today because of
the war we are in against Islamist terrorism, and the
challenging questions we have as to how to balance security and
liberty. He has some opinions based on experience and judgment
that I think will help members of the Committee and I think,
insofar as the public as watching, will help members of the
public understand better and reach more informed judgments
about what we ought to do to protect our lives while also
protecting our liberty.
I would say finally, Mr. Chairman, Senator Specter, that
this combination of personal excellence, integrity,
independence, hard work, commitment to the rule of law and our
system of justice puts him in a unique position to do exactly
what you, Mr. Chairman, and Senator Specter and Senator Schumer
have said, which is to restore the morale and pride of the tens
of thousands of people who work at the Department of Justice
for us every day with great excellence and integrity to
preserve our system of justice.
So I would say in closing, Mr. Chairman, I ask the
indulgence of the Committee in saying with some nostalgia now,
``Back to you, Mr. Mukasey.''
Chairman Leahy. Senator Lieberman, I might say, one, I
appreciate very much especially the personal part. And then I
would also tell Judge Mukasey--and I do not think Senator
Lieberman will mind me doing this. He spoke to me privately and
was just as glowing in his private conversation as he has been
in his public, and he was very strongly supportive of both your
legal background and your integrity and your honesty.
Joe, thank you.
Senator Lieberman. Thank you, Pat.
Chairman Leahy. We are going to make a slight change in
chairs. In a baseball game, this is where they would cut to a
commercial. But, Judge, please step forward and raise your
right hand. Do you solemnly swear that the testimony you will
give in this matter will be the truth, the whole truth, and
nothing but the truth, so help you God?
Judge Mukasey. I do.
Chairman Leahy. Judge, you have heard everybody speak about
you, say glowing things about you, but also talk about the very
strong concerns that Senator Specter and I and many other
members have. And this is the part now where the American
people have been waiting to hear from you. Please go ahead,
sir.
STATEMENT OF MICHAEL B. MUKASEY, NOMINEE TO BE ATTORNEY GENERAL
OF THE UNITED STATES
Judge Mukasey. Thank you. Good morning, Chairman Leahy,
Ranking Member Specter, and members of the Committee. Thank you
for the opportunity to be here today.
When my nomination to be the 81st Attorney General of the
United States was announced, I expressed to President Bush my
gratitude and deep sense of honor. Since then, I have had the
benefit of your graciousness in taking the time to meet with me
privately, to express your views and concerns, and to hear my
views. I am grateful to each of you for that, as I am to
Senators Schumer and Lieberman for their generous remarks in
introducing me this morning. And, of course, I am grateful to
my family--my wife, Susan, my children, Marc and Jessica--who
have been a part of whatever I have done that has been
worthwhile.
But what comes most strongly to mind as I deliver these
brief remarks is that this isn't about me or even about my
gratitude to the many people who helped me get here. This is
about the more than 100,000 men and women of the Department of
Justice who bear the responsibility to pursue justice through
the rule of law in U.S. Attorney's Offices, in investigative
field divisions, in Federal prisons and other facilities all
over this country and all over the world.
There are in a sense many cultures in those different
offices and divisions, and there are differences as well
between the culture of the Department as it may appear in the
building that occupies a square block here in Washington and as
it may appear in each of the 93 United States Attorney's
Offices around the country. But all those apparently different
cultures are united by shared values and standards. Legal
decisions and the progress of cases are decided by facts and
law, not by interests and motives.
So too, the Justice Department's mission includes advising
the other departments and agencies of Government, including the
President, on what choices they are free to make and what
limits they face. Here too, the governing standard is what the
Constitution and the law permit and require.
I am here in the first instance to tell you, but also to
tell the men and women of the Department of Justice, that those
are the standards that guided the Department when I was
privileged to serve 35 years ago, and those are the standards I
intend to help them uphold if I am confirmed.
Because of the times in which we live, it was to be
expected--as, in fact, happened--that many of you would discuss
with me weighty and serious issues that sometimes seem to raise
a conflict between liberty and security. A great Attorney
General, perhaps the greatest to serve in the modern era,
Robert Jackson, said that the issue between authority and
liberty is not between a right and a wrong--that never presents
a dilemma.
The dilemma is because the conflict is between two rights,
each in its own way important. That is why I have told you
during those discussions, and may have occasion to repeat again
here today, that protecting civil liberties, and people's
confidence that those liberties are protected, is a part of
protecting national security, just as is the gathering of
intelligence to defend us from those who believe it is their
duty to make war on us. We have to succeed at both. It is the
honor and the privilege of the men and women of the Justice
Department to help us to do that, and if I am confirmed, it
will be my honor and privilege to try to help them help us.
As I mentioned a moment ago, you have been generous with
your time and your advice in the past couple of weeks. I
believe that the Department's relationship with this Committee
and with Congress is vital to fulfilling its mission. I want to
assure you that, if confirmed, I will always appreciate and
welcome your advice, as I have since my nomination, and that I
and others in the Department will try to be available to you.
In that spirit, I am ready to answer the questions you have for
me today.
Thank you.
[The prepared statement of Judge Mukasey appears as a
submission for the record.]
[The biographical information of Judge Mukasey follows:]
[GRAPHIC] [TIFF OMITTED] 39985.001
[GRAPHIC] [TIFF OMITTED] 39985.002
[GRAPHIC] [TIFF OMITTED] 39985.003
[GRAPHIC] [TIFF OMITTED] 39985.004
[GRAPHIC] [TIFF OMITTED] 39985.005
[GRAPHIC] [TIFF OMITTED] 39985.006
[GRAPHIC] [TIFF OMITTED] 39985.007
[GRAPHIC] [TIFF OMITTED] 39985.008
[GRAPHIC] [TIFF OMITTED] 39985.009
[GRAPHIC] [TIFF OMITTED] 39985.010
[GRAPHIC] [TIFF OMITTED] 39985.011
[GRAPHIC] [TIFF OMITTED] 39985.012
[GRAPHIC] [TIFF OMITTED] 39985.013
[GRAPHIC] [TIFF OMITTED] 39985.014
[GRAPHIC] [TIFF OMITTED] 39985.015
[GRAPHIC] [TIFF OMITTED] 39985.016
[GRAPHIC] [TIFF OMITTED] 39985.017
[GRAPHIC] [TIFF OMITTED] 39985.018
[GRAPHIC] [TIFF OMITTED] 39985.019
[GRAPHIC] [TIFF OMITTED] 39985.020
[GRAPHIC] [TIFF OMITTED] 39985.021
[GRAPHIC] [TIFF OMITTED] 39985.022
[GRAPHIC] [TIFF OMITTED] 39985.023
[GRAPHIC] [TIFF OMITTED] 39985.024
[GRAPHIC] [TIFF OMITTED] 39985.025
[GRAPHIC] [TIFF OMITTED] 39985.026
[GRAPHIC] [TIFF OMITTED] 39985.027
[GRAPHIC] [TIFF OMITTED] 39985.028
[GRAPHIC] [TIFF OMITTED] 39985.029
[GRAPHIC] [TIFF OMITTED] 39985.030
[GRAPHIC] [TIFF OMITTED] 39985.031
[GRAPHIC] [TIFF OMITTED] 39985.032
[GRAPHIC] [TIFF OMITTED] 39985.033
[GRAPHIC] [TIFF OMITTED] 39985.034
[GRAPHIC] [TIFF OMITTED] 39985.035
[GRAPHIC] [TIFF OMITTED] 39985.036
[GRAPHIC] [TIFF OMITTED] 39985.037
[GRAPHIC] [TIFF OMITTED] 39985.038
[GRAPHIC] [TIFF OMITTED] 39985.039
[GRAPHIC] [TIFF OMITTED] 39985.040
[GRAPHIC] [TIFF OMITTED] 39985.041
[GRAPHIC] [TIFF OMITTED] 39985.042
[GRAPHIC] [TIFF OMITTED] 39985.043
[GRAPHIC] [TIFF OMITTED] 39985.044
[GRAPHIC] [TIFF OMITTED] 39985.045
[GRAPHIC] [TIFF OMITTED] 39985.046
[GRAPHIC] [TIFF OMITTED] 39985.047
[GRAPHIC] [TIFF OMITTED] 39985.048
[GRAPHIC] [TIFF OMITTED] 39985.049
[GRAPHIC] [TIFF OMITTED] 39985.050
[GRAPHIC] [TIFF OMITTED] 39985.051
[GRAPHIC] [TIFF OMITTED] 39985.052
[GRAPHIC] [TIFF OMITTED] 39985.053
[GRAPHIC] [TIFF OMITTED] 39985.054
[GRAPHIC] [TIFF OMITTED] 39985.055
[GRAPHIC] [TIFF OMITTED] 39985.056
[GRAPHIC] [TIFF OMITTED] 39985.057
[GRAPHIC] [TIFF OMITTED] 39985.058
[GRAPHIC] [TIFF OMITTED] 39985.059
[GRAPHIC] [TIFF OMITTED] 39985.060
[GRAPHIC] [TIFF OMITTED] 39985.061
[GRAPHIC] [TIFF OMITTED] 39985.062
[GRAPHIC] [TIFF OMITTED] 39985.063
[GRAPHIC] [TIFF OMITTED] 39985.064
[GRAPHIC] [TIFF OMITTED] 39985.065
[GRAPHIC] [TIFF OMITTED] 39985.066
[GRAPHIC] [TIFF OMITTED] 39985.067
[GRAPHIC] [TIFF OMITTED] 39985.068
[GRAPHIC] [TIFF OMITTED] 39985.069
[GRAPHIC] [TIFF OMITTED] 39985.070
[GRAPHIC] [TIFF OMITTED] 39985.071
[GRAPHIC] [TIFF OMITTED] 39985.072
[GRAPHIC] [TIFF OMITTED] 39985.073
[GRAPHIC] [TIFF OMITTED] 39985.074
[GRAPHIC] [TIFF OMITTED] 39985.075
[GRAPHIC] [TIFF OMITTED] 39985.076
[GRAPHIC] [TIFF OMITTED] 39985.077
[GRAPHIC] [TIFF OMITTED] 39985.078
[GRAPHIC] [TIFF OMITTED] 39985.079
[GRAPHIC] [TIFF OMITTED] 39985.080
[GRAPHIC] [TIFF OMITTED] 39985.081
[GRAPHIC] [TIFF OMITTED] 39985.082
[GRAPHIC] [TIFF OMITTED] 39985.083
[GRAPHIC] [TIFF OMITTED] 39985.084
[GRAPHIC] [TIFF OMITTED] 39985.085
[GRAPHIC] [TIFF OMITTED] 39985.086
[GRAPHIC] [TIFF OMITTED] 39985.087
Chairman Leahy. Thank you, Judge, and you had mentioned
that your wife, Susan, is here and your son Marc and daughter
Jessica, and I would ask the staff to put in the record the
names of all the other people who are accompanying you. Someday
in the Mukasey archives, they will enjoying looking at the fact
that they were all here.
Judge, in the course of this Committee's investigation into
the termination of U.S. Attorneys, we found evidence that
showed the White House and Justice Department officials
deciding who to fire were focused on the political impact of
Federal prosecutions and whether Federal prosecutors were
bringing charges against those people they saw as political
opponents. For example, New Mexico U.S. Attorney David Iglesias
was fired a few weeks after Karl Rove complained to the
Attorney General about the lack of what he saw as voter fraud
enforcement cases. Then the fired U.S. Attorney Todd Graves
from Missouri was replaced by Interim U.S. Attorney Brad
Schlozman, who then brought four indictments right on the eve
of a closely contested election. And we had others, in
Wisconsin and elsewhere.
These prosecutions, like the Schlozman ones, clearly
violated the Justice Department's Red Book, which is its guide
for Federal prosecutions of election offenses, which basically
says you do not bring these last-minute prosecutions when it
may affect an election.
Now, that guidebook was recently revised under the
outgoing, now discredited leadership to do away with that. The
Red Book is now a Green Book.
Judge, will you go back to the old standards, the standards
that have been there with Republican and Democratic
administrations as long as I can remember?
Judge Mukasey. Well, your question concerns the Red Book
and the Green Book, but it obviously goes well beyond the Red
Book and the Green Book. It goes to very basic principles that
I have articulated before and, if I am confirmed, I am going to
articulate again in as clear English as I can, and that is that
politics, partisan politics, plays no part in either the
bringing of charges or the timing of charges, and that people
in the Department should not be authorized, people below a very
small group at the top should not be authorized to take calls
or make calls with political figures to talk about cases. And
those people ought to have available to them and will have
available to them, if I am confirmed, the telephone numbers of
the very few people who can take calls and make calls on the
subject of cases or any other subject in the interest of some
elected official.
Chairman Leahy. I would also ask you to look back at the
old Red Book, too, and the fact that it said don't bring
charges on the eve of elections if they are apt to affect the
outcome one way or the other.
Judge Mukasey. Obviously, the closer you get to an
election, when there is a charge that either deals with a
candidate or deals with an issue that can affect the outcome,
the higher and higher has to be the standard and the greater
and greater has to be the necessity for bringing the charge at
the particular time in order to justify it.
Chairman Leahy. And, of course, you have had a close
association with Rudy Giuliani, who is one of the leading
candidates for the Republican nomination for President. It goes
back to your work with him in the U.S. Attorney's Office,
something you have spoken of with pride, and he has, too. And
you have served recently on the Justice Advisory Committee.
Can I assume that as Attorney General, and with the fact
that the Justice Department has to watch that elections are
held fairly, would it be safe to say you will totally recuse
yourself from any involvement either with Mr. Giuliani or any
candidate for President?
Judge Mukasey. It is safe to say. It is not only safe to
say, I am saying it, too, just so that there is no ambiguity.
Chairman Leahy. It is kind of Hornbook law, isn't it?
Judge Mukasey. Right. There is no ambiguity in the record.
Chairman Leahy. Thank you.
Now, let's go to the so-called Bybee memo. I think one of
the greatest stains on the history of this country is the memo
dated August 1, 2002, signed by then Assistant Attorney General
Jay Bybee, that concluded that the President has the authority
as commander-in-chief to override domestic and international
laws prohibiting torture, to immunize anybody who commits
torture, immunize them from prosecution.
And many of us voted against Alberto Gonzales's nomination
for Attorney General because he refused to disavow legal
conclusions in a memo that did not rule out the use of cruel,
inhuman, degrading treatment of detainees during
interrogations.
It turns out that our concerns are well founded. The New
York Times recently reported that soon after Attorney General
Gonzales took over, the Department of Justice secretly endorsed
combinations of the harshest interrogation tactics as legal
even though they had been publicly withdrawn under the so-
called Bybee memo.
Now, do you believe, so we know where you might stand on
this, do you believe that the President has the authority under
any circumstances to exercise a so-called commander-in-chief
override and immunize acts of torture, as the Bybee memo
argued?
Judge Mukasey. We are parties to a treaty that outlaws
torture. Torture is unlawful under the laws of this country.
The President has said that in an Executive order. But beyond
all of those legal restrictions, we don't torture not simply
because it is against this or that law or against this or that
treaty. It is not what this country is about. It is not what
this country stands for. It is antithetical to everything this
country stands for.
Soldiers of this country liberated concentration camps
toward the end of World War II and at the end of World War II
and photographed what they saw there as a record of what the
barbarism that we oppose. We didn't do that so that we could
then duplicate it ourselves.
The Bybee memo, to paraphrase a French diplomat, was worse
than a sin, it was a mistake. It was unnecessary. As I have
read--I mean, I have read the memo and I have read what has
been--some of what has been written about it. It purported to
justify measures based on broad grants of authority that were
unnecessary. The analysis in that memo was found to be
defective, and the memo was withdrawn in favor of a later memo
that narrowed substantially the basis for authorizing measures
beyond, perhaps different from those that may be contained in
the Army Field Manual.
Chairman Leahy. Would it be a safe characterization of what
you have just said that you repudiate this memo as not only
being contrary to law but also contrary to the values America
stands for?
Judge Mukasey. I do.
Chairman Leahy. Thank you. And is there such a thing as a
commander-in-chief override that would allow the immunization
of acts of torture that violate the law?
Judge Mukasey. Not that I am aware of.
Chairman Leahy. Thank you. Now, the memos issued under
Attorney General Gonzales apparently gave legal approval to
harsh physical and psychological tactics, head slapping,
simulated drowning, frigid temperatures and so on. The first of
these memos was issued over the objections of Deputy Attorney
General James Comey, who predicted that the Department of
Justice would be ashamed when the public learned of them. And,
of course, the public did learn of them. It would appear,
though, that they still remain in effect as governmental
policy.
Will you ensure that the Department of Justice will rewrite
its guidance on interrogation and degrading treatment and bring
it back into line with the law that Congress passed?
Judge Mukasey. I am certainly going to examine the
underlying memos and the underlying facts. I have not been
``read in on,'' I think is the Washington expression, any
classified program or information, including the classified
information that relates to interrogation methods or the
memoranda that relate to interrogation methods. And so I cannot
say that there is something that is out of line with the law in
those programs until I see the programs and see the memos and
see whether they are in alignment or not.
Chairman Leahy. Will you not only read the memos, but make
sure that they are in line with the testimony you have already
given and your own views of what is allowed under our law?
Judge Mukasey. I certainly will.
Chairman Leahy. Attorney General Gonzales apparently
believed the President has a commander-in-chief override for
many of the laws of this country which contribute to the
violations of the Foreign Intelligence Surveillance Act, the
so-called FISA, with the signing statement reservation and
others, that for 5 years the administration conducted a program
of warrantless surveillance that violated the provisions of
FISA. They did not come to us and ask us for changes even
though this Congress has almost unanimously updated and changed
FISA more than 30 times since it was first enacted to take into
consideration changes in technology and needs.
Only after somebody in the administration leaked to the
press that this was going on and the resultant public criticism
and telecommunication companies that had cooperated were sued
did they come back and say maybe we ought to look at a new law.
Do you believe that the President has the authority to
override something that is in law, legal requirements, and
immunize illegal surveillance on Americans?
Judge Mukasey. The President cannot immunize illegality.
That is a contradiction in terms. But that said, I think there
is a long, complex history to the FISA statute, beginning with
its passage in 1978, when the then Attorney General, Jimmy
Carter's Attorney General, Griffin Bell, took the view and
expressed the view that the limits of FISA did not reach to the
limits of Presidential authority, which is to say that there
was some gap between where FISA left off and where the
Constitution permitted the President to act.
I said I was not read in on classified programs, and the
Terrorist Surveillance Program that you speak of, although it
is no longer in effect, remains a classified program, and so I
do not know what the details are of--
Chairman Leahy. But you will get read into it.
Judge Mukasey. Of course I will.
Chairman Leahy. There will probably be further questions.
My last question is this, and I will go back into this more on
the next round. If the House or Senate certified a contempt
citation against current or former White House officials
arising from the U.S. Attorney investigation, would you permit
the U.S. Attorney to carry out the law and refer the matter to
a grand jury, as required by 2 U.S.C. 194?
Judge Mukasey. In order for a U.S. Attorney to take a
charge of contempt to a grand jury, a U.S. Attorney has to be
able to tell that grand jury that any reliance by the contemnor
on a privilege cited by the President or on an order of the
President was unreasonable. Unless the U.S. Attorney can say
that it was unreasonable for the person who is proposed to be
held in contempt to have relied on a privilege or an order of
the President, that would be--that person cited for contempt
cannot be found to have had the state of mind necessary to
warrant charging her or him with criminal contempt. And,
therefore, that evaluation is going to have to be made by the
executive when, as, and if it happens.
I hope and pray for a lot of things. One of them is that I
do not ever have to make that decision. But when I make it, I
am going to make it in line with the principles I have just
discussed.
Chairman Leahy. Your predecessor made the decision without
even looking at those principles and said that the U.S.
Attorney would not be allowed to go forward, and the White
House did. You would at least require some principles before
making such a determination. Is that what you are saying?
Judge Mukasey. That is what I am saying. I am going to be
guided by the principles I just mentioned.
Chairman Leahy. Senator Specter?
Senator Specter. Thank you, Mr. Chairman.
Judge Mukasey, many references have already been made to
the imperative need for honesty and integrity and independence
in the Attorney General of the United States.
Going right to the heart of the matter, are you prepared to
resign if the President were to violate your advice and in your
view violate the Constitution of the United States on an
important matter as Attorney General Elliot Richardson did in
the Saturday Night Massacre?
Judge Mukasey. As you and I discussed, if the President
proposed to undertake a course of conduct that was in violation
of the Constitution, that would present me with a difficult but
not a complex problem. I would have two choices: I could either
try to talk him out of it, or leave. Those are the choices.
Senator Specter. Well, if the alternative is to leave if
you cannot talk him out of it, then I think the answer to my
question is yes.
Judge Mukasey. It is.
Senator Specter. OK. Judge Mukasey, there is a variance
between the way you are quoted in this morning's Washington
Post contrasted with your citation of Justice Jackson's
statement. Your quote in the Washington Post is saying, ``When
it comes to the international arena, our national priority is
not to do justice to individual litigants; it is to protect the
security of the body politic of the United States.''
When you quote Justice Jackson on the considerations of
authority versus liberty, he said that, ``Protecting civil
liberties, and people's confidence that those liberties are
protected, is a part of protecting national security...''
Now, I am candidly concerned with the statement which
appears in the Post because when you talk about not to do
justice to individual litigants, it moves away from the
traditional balancing test. National security is of vital
importance, and I think it is fair to say, and a consensus
would be present, that the President has to have greater
authority in time of war or in time of an attack from
international terrorism and a continuing threat, but there is
still a necessity to be concerned about individual litigants,
which your first statement rejects.
Is your dominant view the view you expressed by--or quoted
Jackson that protecting civil liberties is a part of protecting
national security?
Judge Mukasey. It is, and I think I--I am not certain that
I recall precisely the context of the statement that was quoted
in the Post, but I think I was talking there about individual
litigants, not in United States courts but, rather, individuals
who may be in our custody abroad and whose rights are less than
the litigants--or different from those of the litigants in U.S.
courts.
Senator Specter. Well, the Supreme Court said in Rasul that
if the territory is under the control of the U.S. Government,
as Guantanamo was, wouldn't that apply to an individual in
custody and control of the U.S. Government anywhere?
Judge Mukasey. The holding in Rasul relating to Guantanamo
related to a location that we control by virtue of a long-term
lease, and it was, as I understood it, a statutorily based
holding. In fact, Congress then passed a statute that changed
the result in Rasul, which it could not have done had the
result been constitutionally based. Whether the result would be
the same if we were talking about the Bagram Air Base or some
other location, I don't know. And that matter, of course, is
now before the Supreme Court, which took cert. in the
Boumediene case, and I think the briefs, in fact, have already
been filed.
Senator Specter. Well, I am interested in your view. You
are going to be called upon to make judgments long before the
Supreme Court will. That is the great importance of the
Attorney General to follow constitutional course, because it
takes the Court a long time.
But on the issue of where the individual is, when we
enacted the detainee treatment legislation in 2005, the
critical provision is this: ``No individual in the custody or
under physical control of the U.S. Government, regardless of
nationality or physical location, shall be subject to cruel,
inhuman, or degrading treatment or punishment.'' I am going to
come to the latter part in a minute, but the relevant part here
for what we are discussing now is that it does not matter where
the ``physical location'' is.
Judge Mukasey. As to that provision, it certainly does not
matter, and that provision relates to cruel, inhuman, and
degrading treatment, which no one is permitted to engage in
regardless of where he or she is.
Senator Specter. Senator Leahy quoted the Bybee memo. I
want to refer to another Department of Justice memo in 2002,
which said that, ``Any effort by Congress to regulate the
interrogations of battlefield combatants would violate the
Constitution's sole vesting of the commander-in-chief authority
of the President.''
Now, the legislation defining the scope of interrogation to
exclude ``cruel, inhuman, or degrading treatment or
punishment'' was enacted after a 90-9 vote in the Senate and a
highly publicized disagreement between President Bush and
Senator McCain in a meeting between the two of them and a
rapprochement, and then the President issued a signing
statement, which said that his authority as commander-in-chief,
authorities under Article II, did not necessarily mean that he
would comply with the legislative provision, which is really
more than a legislative provision since it was negotiated with
the executive branch.
Now, if somebody comes to you as Attorney General, if
confirmed, and they have a line of interrogation which you
conclude violates the language of ``cruel, inhuman, or
degrading,'' and you have the authority of Office of Legal
Counsel saying that the Congress cannot affect the President's
authority on battlefield interrogation, realizing that this
legislation says that regardless of physical location, are you
going to advise the person who brings you the issue that you
follow the statute or you defer to the President's Article II
power?
Judge Mukasey. Well, I think the question assumes that the
President has directed that that method of intelligence,
notwithstanding a finding that it violates the law, should
proceed anyway. And in that case, I have no course but to
follow the law.
Senator Specter. Follow the statute.
Judge Mukasey. Yes, sir.
Senator Specter. The statute controls as opposed to Article
II power. Thank you on that point.
Judge Mukasey, is there any justification for concluding
that the constitutional right to habeas corpus is more limited
than the statutory right to habeas corpus? And you and I
discussed this informally, and it arises in the context of the
Rasul decision by Justice Stevens saying that habeas corpus
applied to Guantanamo and habeas corpus is provided for in the
statute. But Justice Stevens then went on to say that there was
a constitutional right of habeas corpus which emanated from the
Magna Carta in 1215, John at Runnymede. And then, to my
judgment inexplicable, the Court of Appeals for the District of
Columbia said that the change in the statute on habeas corpus
limited the constitutional rights of a detainee,
notwithstanding what Justice Stevens said in Rasul about the
Magna Carta and John at Runnymede.
So is there any justification for construing statutory
rights of habeas corpus more broadly? Or, really, is there any
justification for interpreting the constitutional right to
habeas corpus in a narrower way than the statutory right?
Judge Mukasey. Senator, as I understand it, that question
and related questions are squarely before the Court in
Boumediene, and I am going to have to do--to carry into--
Senator Specter. Judge Mukasey, you are punting now.
Judge Mukasey. That is right, because I am going to have to
do what I was told to do when I was a kid, which is I have to
watch my mouth about this.
Senator Specter. Well, you can punt a little more easily
when that issue is before the Court. I will grant you that. But
there are many issues which are going to come to you where a
Court decision is a long time away. And this Court decision may
be a long time away. They are going to hear argument on it. It
has been very contentious. They denied cert. Then on
reapplication for cert, they granted it, requiring five votes
instead of four.
There are going to be a lot of detainees who are going to
be asserting their rights, and somebody comes to you in the
interim, the Supreme Court has not decided, and they say,
``Attorney General Mukasey, we have got this detainee. We want
to know, since he has a constitutional right to habeas corpus,
whether we have to accord him that right in light of the fact
that the Congress has fiddled around and taken it away.'' What
do you say to him? Here you have got a detainee, you have got a
person, you have a case in controversy right before you, months
before the Supreme Court decides it.
Judge Mukasey. That, as you say, is precisely the case that
is before the Court, and the Department has filed--has already
filed briefs in that case. I am not--
Senator Specter. I filed a brief, too, but that does not
mean anything. The court has not ruled.
Judge Mukasey. The fact that the Court has not heard it
does not mean that I am not--
Senator Specter. Well, my time is up.
Chairman Leahy. Go ahead, if you want to finish your
question.
Senator Specter. I like to set a good example, Judge
Mukasey. I like to quit on time. Thank you very much.
Chairman Leahy. A strong message to some of the rest of us.
Senator Kohl?
Senator Kohl. Thank you, Mr. Chairman.
Judge Mukasey, when Attorney General Gonzales was
nominated, many of us expressed serious reservations about his
lack of independence from the White House, and the record shows
that we were right to be concerned. For example, the White
House and politics generally were very involved in ongoing
prosecutions and charging decisions at the Justice Department,
and politics infringed on personnel decisions, most notably in
the case of U.S. Attorneys, but also regularly in the hiring of
career employees.
Also, the Vice President's office seemed to control much of
the legal advice that the Justice Department produced. We
expect you to vow to us this morning that you will be
independent of the White House and that politically driven
decisionmaking will be eliminated if you are confirmed, but we
are hoping that you can say more than that. You have had some
time since your nomination to think about these problems and
determine a course of action to address them.
So how will you ensure that politics plays no role and that
there is no appearance that politics plays a role in cases
brought by the Justice Department?
Judge Mukasey. The question you asked, of course, is
enormously important because it goes to whether our citizens
and everybody here can have confidence in the administration of
justice in this country. And what I have said in meetings with
people in the past and what I have said here and what I am
going to reiterate, if I am confirmed, is that any attempt to
interfere with a case is not to be countenanced; any call to a
line assistant or to a United States Attorney from a political
person relating to a case is to be cut and curtailed, and that
person, that caller, is to be referred to the few, the very few
people at the Justice Department who can take calls from
elected officials. Regardless of that, hiring is going to be
based solely on competence and ability and dedication and not
based on whether somebody has got an ``R'' or a ``D'' next to
their name.
I served in the Department in the U.S. Attorney's Office in
the Southern District of New York 35 years ago. I was never
asked what my politics were. I did not know the politics of
many of the people there, and still do not. And it did not
matter. It had nothing to do with our job, nothing to do with
the way we did it, and it cannot have anything to do with the
jobs of the people in the Justice Department today.
That is the standard I am going to make very clear, very
precise, and I am going to enforce.
Senator Kohl. Other than saying you will not hire or fire
U.S. Attorneys solely for political reasons, what can you do to
ensure that this practice does end immediately?
Judge Mukasey. I don't know now of any ongoing dispute
involving the dismissal of a United States Attorney for any
such reason, but if there is any such, I am going to get in the
middle of it very fast and stop it and do everything I can to
stop it.
Senator Kohl. What can you say to assure us that the legal
opinions produced by your Justice Department will be based on
the best interpretation of law and not on the White House or
the Vice President's interpretation of the law?
Judge Mukasey. I am going to review the significant
decisions of the Office of Legal Counsel, particularly those
relating to national security, although not exclusively, so as
to make certain that they are sound, soundly reasoned, soundly
based. We have already had the experience of one of those
opinions having to be withdrawn, and I want to make certain
that the others that are in place are sound and change them if
they are not.
I think we need to do that not only so that everybody can
have confidence in the administration of justice, but also so
that the people who are out in the field, the people who work
for agencies, people who may be engaging in interrogation, have
confidence that they are acting on the basis of the law and
that they are not going to have the rug pulled out from under
them at a later time because it is found that somebody had gone
too far in giving them authorization.
It is important that they be able to do their work, and we
are going to expect them to do their work. We want them to get
the information that we need. But we cannot expect them to put
their careers and their freedom on the line if they do not have
confidence that the authorizations that are being given to them
are sound.
Senator Kohl. Justice Department senior positions, as you
know, are filled with acting positions who the President has
not nominated and the Senate has not confirmed. Do you think
this is a problem for the effective management of the
Department and the enforcement of our laws? And if so, what do
you intend to do to change it?
Judge Mukasey. Of course it is a problem. Matters cannot
move forward unless necessary authorizations are given; and if
the offices of people who would give those authorizations and
move those matters forward are vacant, then things stagnate,
and not only does justice not get done, but morale
deteriorates.
I will try to attract people--and I think I can attract
people--who understand the importance of doing the jobs that
are unfilled and get people to do them just as quickly as I
can. It is not something, obviously, that I could do--or can do
before confirmation. I think it would have been regarded as
something of an act of presumption for me to start looking at
people and talking to people and interviewing people and so
forth. But I have thought about it, and it is obviously a top
priority.
Senator Kohl. Judge Mukasey, for decades this country has
been admired around the world for its unwavering commitment to
human rights and the rule of law. There is a growing consensus
that the detention center at Guantanamo Bay is causing great
harm to our reputation around the world. Former Secretary of
State Colin Powell said, and I quote, ``If it was up to me, I'd
close Guantanamo not tomorrow, but today.''
Last year, even the President himself recognized that
Guantanamo has been a focus of international criticism, and he
said, ``I would like to close Guantanamo.''
Do you think that we need to close Guantanamo Bay prison?
And if so, will you recommend that to the President?
Judge Mukasey. I think there are substantial problems with
Guantanamo, both problems of reality and problems of
perception. As to reality, it is my understanding that although
people are humanely treated at Guantanamo, it is more than a
matter of humane treatment. It is a matter of the fact that we
are detaining people apparently without end, and that it has
given us a black eye. And I understand the practicalities that
the President has to deal with beyond the question of whether
people are or are not being humanely treated.
I think a substantial reason for the problem we have had
with Guantanamo is that, to use a bureaucratic expression,
``nobody owns it.'' The Defense Department runs it. There is
obviously an overlay of Justice Department involvement insofar
as we are talking about hearings or not for detainees. The
National Intelligence Director obviously has an interest in
what happens to the people there because they may very well
have or have had information that we need in order to combat
terrorism. So it is out there in a kind of no man's land of
jurisdiction, and control has to be taken.
Senator Kohl. Are you prepared to recommend to the
President that we close Guantanamo?
Judge Mukasey. I am prepared to recommend to the President
that we take the responsible course in dealing with the people
at Guantanamo. I cannot simply say we have to close Guantanamo
because obviously the question then arises of what we do with
the people who were there. And there is now no easy solution to
that.
Senator Kohl. Well, you have had time to think about this.
It has been on the table since the day you were nominated, and
for a long time before that. What are you prepared to do with
Guantanamo? Are you prepared to close it? Are you prepared to
take the steps that are necessary to close it?--which you have
indicated needs to be done. But are you prepared to say to the
President we need to close Guantanamo as soon as we can, we
have several things that need to be done so that we can close
Guantanamo, but the prison needs to be closed?
Judge Mukasey. I think I am prepared to say that we need to
get the best advice and the best ideas that we can and act
responsible, with the goal of closing it down because it is
hurting us. That I am prepared to say, and I think as regards
this President, I think I would be preaching to the converted.
I think he understands that, and I think he has said that he
understands that Guantanamo has hurt us.
Senator Kohl. Is that high on your list of priorities?
Judge Mukasey. Yes, it is, along with--yes, along with
filling vacancies, it is.
Senator Kohl. So we can expect that in the event that you
are confirmed, soon thereafter we will be hearing about
Guantanamo and the things that you believe need to be done to
close it as soon as possible?
Judge Mukasey. I think we can expect that I will try to get
the best people I can to give the best advice that they can and
that I will be making that known to the President. That is what
I am going to do.
Senator Kohl. Do you believe that Congress has the
constitutional authority to prohibit torture?
Judge Mukasey. Yes, I do, and it has.
Senator Kohl. Thank you.
Judge Mukasey, in today's Washington Post there is an
article describing how, since September 11, 2001, the Justice
Department has redirected its efforts away from fighting
violent crime. Referring to the alarming recent increases in
violent street crime, the article quotes a speech this week
from FBI Director Mueller in which he states, ``We are
realizing that national security is as much about reducing the
number of homicides in our streets as it is about reducing the
threat of terrorism.''
Do you agree with Director Mueller and the statements he
made? And if so, what steps will your Justice Department take
to reduce the now growing threat of violence across our
country?
Judge Mukasey. I do, and I think we need to look at both
resource allocation and at the resources we have. It is my
understanding that the terrorism effort, insofar as it took
place within the Justice Department, apart from the FBI, just
the Justice Department excluding the FBI for a moment, that
that effort was undertaken by people who were taken from the
Criminal Division and put into antiterrorism efforts, and that
there may have been programs, including anti-gang programs,
that may have suffered as a result. And that is something that
cannot be tolerated because we cannot turn our society into
something that is not worth preserving in order to preserve it.
That is not a formula for success.
I think we need to figure out staffing. I think we need to
get the budget where it ought to be. And, obviously, if I am
confirmed, I am going to be here not like a mendicant, but I
will be here with, I hope, an intelligent program for putting
it on track and for implementing in particular anti-gang
efforts.
I come from a jurisdiction where violent gangs reduced
virtually an entire borough to a war zone and related parts of
another borough. I know what gangs can do to a city. I saw it.
There is a Violent Gangs Unit in the U.S. Attorney's Office in
my district focusing specifically on that. So I understand the
importance of that, and it is also corrosive because people
attracted to violent gangs obviously are young people, and that
is supposed to be our future.
Senator Kohl. As you know, Judge Mukasey, violent crime, to
which we referring just a minute ago, rose again last year.
Many of us are concerned that the way in which your predecessor
addressed this important issue was not good enough. In each
year of his tenure, he proposed drastic reductions to important
State and local law enforcement funding programs. One program
this administration has continually tried to eliminate is the
very successful and cost-effective COPS universal hiring
program. As funding for more police officers on our streets
decreased or ended, not coincidentally violent crime rose
significantly across our country.
Would you agree that we need a renewed commitment to this
COPS program to counter the surge in violent crime across our
country?
Judge Mukasey. I think the COPS program has been very
successful, and I think we ought to keep it in place.
That said, as I understand the COPS program, the mechanism
that was supposed to be put in place was that there would be an
initial funding for hiring and then States and localities which
saw a good effect from the additional hiring, hopefully had an
effect of reducing crime, would themselves begin to fund their
police departments and State police officers locally and
statewide. But the COPS program was not supposed to be an
ongoing funding program for police departments, and I support
that. I think programs that teach by example and then permit
localities to follow that example are the best use of Federal
resources, and I would encourage it.
Senator Kohl. So you are not about to say that you do
support continuing funding for the COPS program?
Judge Mukasey. I think we ought to fund it in such a way
that it encourages States and localities to continue the
initiative and to keep the momentum going. I think the point
was to start momentum and keep it going with State and local
funds. And that is the principle I support.
Chairman Leahy. Thank you, Senator Kohl.
Senator Hatch will be next, and before we start, just so
you know, we will continue to go back and forth. Judge, I am
going to break about noon, as I mentioned to you earlier. If
you need a break before then, let us know.
Judge Mukasey. Thank you.
Chairman Leahy. The idea, because of the fact that the
President is coming up here for the presentation of the
Congressional Gold Medal to His Holiness the Dalai Lama, a lot
of things slow down in the Capitol. We are moving around, a
number of us who are sponsors of that Gold Medal will--or a
number of us who are friends of the Dalai Lama want to be
there.
We will go now to Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman.
Judge Mukasey, I appreciated the time we had together in my
office. I certainly appreciated the comments by both Senators
Schumer and Lieberman about you and their relationship with
you. I thought they were very good comments.
You have an excellent reputation as a judge, as a
prosecutor, as an attorney. And I for one am very grateful the
President has called you to this position.
Now, I appreciate your willingness to accept this position
at this time, with only a year and a half, a little over a year
to serve, at a time when we really need you, and I think
everybody should appreciate that fact. And I hope that you will
be quickly confirmed at the conclusion of these hearings
because we need you down there at the Justice Department as
early as we can, and to strengthen and pull together that
Department like it needs to be.
Now, if I heard it correctly, when Senator Specter was
asking you about detainee treatment, I thought he characterized
you as saying that a statute necessarily trumps the President's
authority under the Constitution. Now, I may have gotten that
wrong, but I want to clear it up just in case. Does or can a
statute trump the Constitution?
Judge Mukasey. If that is what I said, that is not what I
meant.
Senator Hatch. Well, I know you did not mean that.
Judge Mukasey. As I said earlier, even when the Foreign
Intelligence Surveillance Act was enacted, it, according to the
then Attorney General, did not reach the limit of the
President's authority, which means that the President had
authority between where the statute left off and where his
authority left off. The statute cannot limit that authority
because he has the responsibility to protect the country, and
so he has the authority that is commensurate with that.
But that said, I think it has been obvious from events of
the last several years that everybody is better off--the
President is better off, the Congress is better off, the
country is better off--when everybody is rowing in the same
direction. When the President acts pursuant to his authority
with help from the Congress, with the tools that the Congress
provides, then we do not have to get into butting heads over
who can and who cannot.
Justice Holmes said that when the Constitution defined
three branches of Government, it did not define fields of black
and white. There is gray, and there is always friction at the
borders. We are all much better off when those issues do not
have to be resolved in an either/or fashion.
Senator Hatch. Thank you.
The first area that I would like to discuss beyond that is
the enforcement of our laws against obscenity and pornography.
Obscenity and pornography seem to be more widespread than ever.
It just seems to be pervasive in our media today, especially
the Internet. The consumption of this material harms
individuals, families, communities. The production of this
material victimizes children as well as adults and
disproportionately victimizes women, as far as I can see. I am
pleased to see that the Justice Department is finally finishing
regulations to implement the child pornography statute Congress
passed last year as part of the Adam Walsh Act.
Now, eight members of this Committee were cosponsors of
that legislation, and I hope the Department will get those
regulations finished and rigorously enforce the law with regard
to that.
Turning to the issue of obscenity enforcement, the Justice
Department's record of enforcing the laws against adult
obscenity has been criticized almost continuously for more than
a decade. These cases essentially stopped altogether during the
Clinton administration, and, unfortunately, there is not much
more to show during the Bush administration.
Just last week, the Los Angeles Times published an article
reviewing some of these issues and criticisms. The cases that
are brought focused narrowly on the most extreme material
rather than on the more mainstream obscenity. And perhaps that
narrow approach makes a few convictions more likely, but those
convictions have little or no effect on the obscenity industry,
and most consumers do not access this extreme fringe material.
Now, the larger mainstream obscenity companies will gladly
condemn the extreme marginal producers as if by doing so they
can take some sort of a moral high ground. In my view, the
Justice Department's obscenity enforcement strategy has been
misguided. It focuses on prosecuting too narrow a range of
obscene material. Now, in my view, there are too few FBI agents
and too few prosecutors around the country initiating
investigations and cases in this area.
So I am asking you personally to review this policy
decision about prosecuting extreme rather than mainstream
obscenity and to consider changing it. Would you give some
consideration to that?
Judge Mukasey. I certainly will.
Senator Hatch. I would be grateful to you if you would.
Judge Mukasey. I certainly will, and I do so because I
recognize that even what is referred to conversationally as
``mainstream material'' can have an effect of cheapening
society, of objectifying women, and of endangering children in
a way that we cannot tolerate.
Obviously, we are all aware the Supreme Court has put
limits on the degree to which we can prosecute for content. But
even within those limits, we have to make sure that this stuff
does not affect children and does not wind up undermining
families.
Senator Hatch. Will you review the allocation of resources
and discretion in the FBI field offices to ensure that this
area of law enforcement is given the priority it deserves?
Judge Mukasey. I will.
Senator Hatch. Thank you so much.
Let me ask you about a case you listed in your
questionnaire as one of the ten most important cases that you
have personally worked on, and, of course, that is the Karlin
Communications case, a very important case. As you can imagine,
this case caught my eye since it occurred in my home State of
Utah. Briefly describe your role in this case and why you think
it merits being in your top ten list.
Judge Mukasey. My role in that case was simply that I was
asked to serve, along with actually the principal--the lawyer
whose client that was, my former, my late partner, Harold
Tyler, who was a former Deputy Attorney General, and a company
that was known colloquially as the ``dial-a-porn'' business was
being investigated through the U.S. Attorney's Office in Salt
Lake City, and they asked us to represent them.
It turned out that the statute under which the charges were
proposed to be brought and later were brought was a statute
that did not apply to an operation of that sort. And that was
the nature of the defense that we interposed. I tried first,
unsuccessfully, to persuade the U.S. Attorney's Office and to
persuade a district judge not to permit the filing of an
indictment under a statute that did not apply. After the
indictment was filed, I moved before that same judge, as it
turned out, to dismiss the indictment because the statute did
not apply. He granted that motion, and the case was affirmed by
the Tenth Circuit.
So far as being among the top ten, it is fairly rare that
one gets an indictment dismissed for failure to charge a
Federal crime, which is what happened there, but it had to do
entirely with whether the statute was the appropriate one or
not, and nothing else.
Senator Hatch. That is an appropriate effort by any
attorney under the law and enforce the law, and that shows,
again, I think, how you have acted throughout your lifetime.
Some people might try and construe your representation in that
case wrongly, but I commend you for being the great attorney
you are.
Judge Mukasey. Thank you.
Senator Hatch. Well, let me just--let me see. I still have
a little bit of time. Judge Mukasey, the protection of
intellectual property has always been one of my top interests
here. Currently, Chairman Leahy and I are working on--and
others on this Committee, I have to say, and Senator Specter
has done some yeoman work in this area. But a number of us on
this Committee are trying to come up with the Patent Reform Act
of 2007, which the Senate we hope will consider in the coming
weeks. Now more than ever, Americans' ingenuity continues to
fuel our economy, and it is imperative that we protect new
ideas and investments in innovation and creativity. Piracy and
counterfeiting are now the new face of economic crime around
the world, far exceeding traditional property crimes. Strong
intellectual property protection builds the economies of
developed and developing nations alike. Counterfeiting and
piracy, on the other hand, cripple growth and stifle
innovation.
Nationally, my colleagues and I in the Senate are committed
to curtailing piracy and counterfeiting, but this is a global
problem, and the solution will require a commitment to beef up
domestic enforcement and a governmentwide effort to prevent the
creation of pirated and counterfeited materials.
Furthermore, I believe any solution must take an integrated
approach on both the domestic and international fronts,
incorporating educational, judicial, and enforcement
components. And I believe that the draft proposal released by
the Justice Department earlier this year addressing some of the
enforcement issues is a good start.
Now, what role do you think the Department should have in
this important endeavor?
Judge Mukasey. I think the Department should be aggressive
in protecting the intellectual property, which is as important
as any natural resource that we have. That is what fuels our
economy, and that is what promotes our growth. And I had
occasion as a district judge to enforce intellectual property
laws. There is a way of authorizing private entities when they
believe that their intellectual property is being knocked off
and otherwise duplicated improperly to get a U.S. marshal to go
out and seize both the offending material and the means used to
produce it. And I did that on more than one occasion, and I
think successfully shut down some counterfeiting operations.
Obviously, as you say, this is not just a problem in this
country. This stuff is pouring in from abroad, and we need to
stop it.
Senator Hatch. It is a worldwide problem.
In the case of terrorist Jose Padilla, you ruled that the
Government could designate him as an enemy combatant, but you
also ruled against the arguments of able lawyers, such as James
Comey and Paul Clement, that Padilla was entitled to consult
with counsel. One article, I believe, was in Newsweek about a
month ago describing you as telling Mr. Clement that his
arguments were absurd.
Now, some critics of the previous Attorney General have
said that he was not independent enough of the White House.
Now, will you take that same backbone that you exhibited there,
assuming that Newsweek was accurate, and sense of independence
shown during your judicial service into this new position as an
Attorney General?
Judge Mukasey. Well, I will reject any argument that I feel
is without foundation, and I just want to make one minor
correction, particularly since I have met Paul Clement since
then. He is a superb lawyer.
Senator Hatch. I have no doubt that you will work very
harmoniously with him.
Judge Mukasey. I do not think I actually said his argument
was ``absurd.'' My manner and my ruling may have said that, but
I don't--I think I tried to avoid that word. I think I did
succeed in avoiding it.
Senator Hatch. Well, I only raise it because it was a lot
of fun for me to raise.
[Laughter.]
Senator Hatch. I want you to know how much I appreciate
your willingness to accept this great position--it is an
important position in this country--and how much I personally
care for you and like you and respect you, most importantly
respect you. You are one of the best, and I commend the
President for choosing you, and I really, really thank you for
taking this position in this very short time left in this
administration. I am grateful to you.
Judge Mukasey. Thank you very much.
Chairman Leahy. Senator Feinstein?
Senator Feinstein. Thank you very much, Mr. Chairman, and
welcome, Judge. It is good to have you here, and I also thank
you for taking this position.
You mentioned earlier--and I wanted to clear something up--
that the Terrorist Surveillance Program is not now in effect. I
think you mentioned this in response to Senator Specter's
question. It is, in fact, in effect. It has been brought under
the jurisdiction of the Foreign Intelligence Surveillance
Court, but I do not want anyone to believe it is not in effect.
Judge Mukasey. As I said, I am not read in on classified
programs, and so I am going to make mistakes like that, and I
appreciate being corrected.
Senator Feinstein. Thank you, just for the record.
Now, let me ask you a question about delegation of
authority. Attorney General Gonzales issued an Executive order
on March 1, 2006. It was Order 2808, and I have it here. That
delegated substantial authority to hire and fire to his chief
of staff and the White House Liaison. Those were Kyle Sampson
and Monica Goodling.
Now, technically, the order does not involve U.S.
Attorneys, but it became very clear to me that they played a
role unofficially in the firing of the U.S. Attorneys.
My question to you is: Will you reverse this order?
Judge Mukasey. I didn't understand--I am surprised to hear
that order is still in effect, and I certainly believe that,
just as a way of--as a tool of administration, delegation is
important. Obviously, an Attorney General cannot do everything
himself or herself. But that said, the authority is that of the
Attorney General, and you do not assign to people who are--
particularly people who are regarded as political people, the
authority to make decisions on hiring in contact with other
political people. That is not the way I am going to run the
Department.
Senator Feinstein. Well, I thank you. I would respectfully
suggest you take a look at it, because it does vest authority,
and I quote, ``to take final action in matters pertaining to
the appointment, employment, pay, separation, and general
administration of,'' and then it cites three specific
categories of service employees. So I would hope that you would
take a look at it, and I think it is the nub of the problem
that we had before.
I would like to ask a question about Executive power, and
in Padilla v. Bush, you upheld the President's power to detain
Jose Padilla indefinitely, even though he was a United States
citizen seized on United States soil, without being charged
with any crime. Under an existing statute, no American citizen
could be detained ``except pursuant to an Act of Congress.''
You ruled that the Authorization for the Use of Military
Force was an Act of Congress and was written broadly enough to
authorize Padilla's detention. The Second Circuit disagreed,
saying that the AUMF did not authorize the President to detain
American citizens like Padilla who were seized in the United
States. The Supreme Court did not reach the issue, and it
remains unresolved.
As Attorney General, will you advise the President that the
AUMF authorizes him to seize United States citizens on U.S.
soil and detain them indefinitely without charge?
Judge Mukasey. I think that the authority of the President
to seize U.S. citizens and detain them without charge, leaving
aside for a moment where that happens, was, in fact, sustained
in Hamdi. The Court in Hamdi did rule that the President had
authority to, among other things, seize and detain American
citizens captured on the field of battle. Of course, that
person was captured, I believe, in Afghanistan.
Senator Feinstein. I am talking about the United States.
Judge Mukasey. Hamdi left open the question of where the
battlefield is and who defines the battlefield. And I certainly
cannot say that as of now there is clear authority authorizing
what I thought there was authority to authorize in Padilla.
Senator Feinstein. Thank you very much. I appreciate that.
Also, in your Padilla opinion, you claim that under Civil
War era prize cases, the President has inherent authority to
respond to aggressive acts by third parties and that ``courts
may not review the level of force selected.''
The first question is: How long does this unlimited power
last?
Judge Mukasey. I think the short answer to that is that it
lasts as long as it has to last until the other political
bodies involved in the matter can take the matter up and deal
with it. And obviously Congress did take up the disaster that
was--that fell upon us on September 11 and responded with the
Authorization for the Use of Military Force shortly thereafter.
Senator Feinstein. So you would then agree that the
Congress under its Article I authority would have the right to
set boundaries on military actions?
Judge Mukasey. I think that Congress under its Article I
authority has to provide tools to the President. Where the
provision of tools leaves off and interference with the use of
those tools and the way those tools are used begins is not
something I ever want to see resolved in some definitive way
because of a conflict between the two branches.
Senator Feinstein. I think this is a real point of issue
and could be of issue in the future, and because of this case,
I would be very interested in your advice to the President. We
well could be faced with an exercise of Executive power that we
would want to bind in the future, and so where I am going is:
Do you believe the Congress would have the authority under
Article I to do so?
Judge Mukasey. I think that would very much depend on how
it was done and what it concerned. And I am--the learning curve
that I have had up until now has been very steep, and I think
it is--it is not in my interest and I think it is not in the
general interest for me to be in a position of having to come
up with highly detailed expressions of view on very difficult
subjects, because I want--I am sure we all want that learning
curve to continue after--
Senator Feinstein. I understand that.
Judge Mukasey.--I leave this hearing room, if I am
confirmed.
Senator Feinstein. Right. I understand that. But the
Padilla case caused me--the statement, ``courts may not review
the level of force selected,'' you know, causes some concern.
Let me ask one other question. Would not the President have
to advise the Congress of his intentions and actions?
Judge Mukasey. I think the President does advise the
Congress of intentions and actions. I think that obviously very
much depends on the level of detail we are talking about. The
President would be at the very least unwise to undertake major
initiatives without making sure that everybody is on the same
page and that everybody understands and is comfortable with his
authorization to move forward, because otherwise the country is
riven with dissent, and that is not helpful.
Senator Feinstein. I would agree.
Let me go to the FBI. In the last oversight hearing with
Director Mueller, he spelled out both in his written testimony
and I asked him questions about the priorities of the FBI, and,
in fact, violent crime was No. 8 of eight priorities. Well, in
the last 2 years, violent crime in the United States has
increased, and I am very concerned about it.
Director Mueller also said that the funding staffing level
for FBI criminal case agents has decreased by almost a thousand
agents--that is 18 percent--since 9/11.
My question to you is: Will you look into this? Will you
look into this prioritization? You spoke about gangs and their
activities, and I am one that believes that we have a real
problem with gangs in the United States. Certainly in my State,
California, and I believe in every medium- and large-size city
in this country, there are, in fact, operative gangs that
practice violent crime.
So the question I have of you is: Would you make overseeing
these priorities a priority of yours?
Judge Mukasey. I certainly will, and I will look at the
priorities, and I am obviously particularly interested to find
out what the other seven priorities are. But there is no excuse
for making violent gangs other than a very substantial
priority.
Senator Feinstein. I appreciate that.
Now, in reviewing your record--and this is only important
in that it may be a harbinger of how you would view civil
rights--we found a case--and it is U.S. v. New York Police
Department. It is about a female police officer who was raped
by her male colleague. The issue was whether the female victim
was treated differently by the employer than the male
assailant. And the facts of the case reflected that the victim
did not tell the truth about the events, had not secured her
weapon, which was eventually used against her. However, it was
not disputed that she was raped or that a bullet was fired into
her bed. The victim was repeatedly questioned about the attack,
placed on restricted duty, charge with making false statements,
and eventually fired.
The assailant was not interviewed until 8 months after the
attack and 2 months after Karen Sorluco was fired, nor was he
reprimanded or punished in any way.
You were the trial judge on this case, and you decided that
it should not be heard by a jury, and you granted summary
judgment. The Second Circuit disagreed and ordered a jury
trial. After hearing all the evidence, a jury agreed that the
female victim had been treated differently than the male
officer and awarded her over $260,000 in damages.
You vacated that verdict. She appealed and again the Second
Circuit overruled your decision, stating that you were wrong to
substitute your judgment for the jury's, and that the New York
Police Department tragically failed to show any sensitivity to
the physical trauma and resulting psychological manifestations
commonly experienced by rape victims.
Now, as you look at this case in hindsight, and as I look
at the case and am concerned about the Civil Rights Division of
the Department of Justice at this point in time, is this a
showing of your views? Or do you see it as an unusual case?
Judge Mukasey. It is, to say the very least, it is a stark
euphemism to say that it is an unusual case. The only issue
presented to the fact finder in that case--and as I understood
it, presented to me--was not whether the police department
acted sensibly or humanely or certainly not as I would have
acted. The only issue as I saw it was whether they had acted
unlawfully in their treatment.
And I wrote a decision setting out what I thought the
evidence was that indicated that they could not be reasonably
found to have acted unlawfully. And I set it out in detail so
that the Court of Appeals could understand how I had reached
the decision I had reached, and so that, if necessary, they
could--as, in fact, they did--reverse the case.
It was, as you say, a very unusual case--I am sorry.
Chairman Leahy. No, I am sorry. Go ahead. Finish your--
Judge Mukasey. I guess that is the kind of narrow answer to
the narrow question, but there is a much broader question,
which is the question about harbinger and basically where do I
stand on civil rights--on women's issues specifically and on
civil rights generally. And there I have a record of 40 years
of service as a lawyer, as an Assistant U.S. Attorney, as a
judge, in my interactions with my colleagues, with my
employees, including my law clerks, half of whom were women,
and each of them hired on the merits--on the merits.
In my own personal life, I at one time belonged to a club
that restricted membership to men, and I tried to undermine
that, sponsored for membership a woman whose name did not
indicate that she was a woman. And we went through a process,
including letters of recommendation without using the pronoun,
and saw how far I could go, and it was discovered and she was
rejected. And then there were two votes by that club, both of
which came out against admitting women. And at that point, I
pushed back and said, ``I have had enough,'' and I withdrew.
That is just an anecdote, but it, I think, indicates what
my personal standard is, and my standard that I would bring to
the Department.
So far as the Civil Rights Division is concerned, that
Division occupies a very special place because the civil rights
movement in general has been one of the finest expressions of
the genius of American politics that it is possible to imagine.
The--
Chairman Leahy. We can go back onto the same question,
obviously, in Senator Feinstein's followup time. I agree with
what you say about the Civil Rights Division. There are going
to be a number of questions on that because of some of the
things that have been done there.
What I intend to do is have Senator Grassley ask questions.
We are going to try to stick within our time, then go to
Senator Feingold. We will then close or recess with Senator
Feingold and go back to--and if I am not here, Senator
Feingold, if you would please recess the hearing until after
the matter of the Dalai Lama.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Leahy. That will give you plenty of time, too, to
relax, visit with your family, and have some lunch.
Judge Mukasey. Thank you.
Chairman Leahy. Senator Grassley, go ahead, sir.
Senator Grassley. Judge, congratulations on your
appointment. I had a nice talk with you in my office. I visited
with you then about some issues, and I said I would probably
ask questions on those issues for the record. And so basically
I am going to stick within that guideline. If I throw you a
curve ball, I will welcome answers in writing if you do not
feel comfortable.
Judge Mukasey. I will try to hit a curve ball.
Senator Grassley. OK. One topic that is near and dear to my
heart, as I told you, is the Federal False Claims Act. This is
a law signed by President Lincoln, but it was intended to
recover Government money lost as a result of war profiteers who
sold the Government faulty goods during the Civil War. It
needed to be updated, and so in 1986, I passed the False Claims
Act to do that. The goals of that amendment of 1986 remain just
as important today or just as important as they were 150 years
ago. We have recovered $20 billion of money, taxpayers' money
that would have otherwise been lost and gone forever. In fact,
I think maybe, you know, the deterrent effect probably has
saved a lot more money than that, but you cannot measure that.
The bottom line is that there is tremendous benefits to the Act
and to its aggressive enforcement.
Unfortunately, the False Claims Act has been under constant
attack since President Reagan signed it in 1986. Opponents have
tried to gut it through work of Congress. They have tried to
get the Justice Department to slow down enforcement, and they
have brought lawsuit upon lawsuit to water the Act down in the
courts.
Well, in large measure, the False Claims Act has stood the
test of the time, including even challenges to its
constitutionality. But the next Attorney General and every
Attorney General needs to continue to support this law and
appreciate the benefits that a vigorously enforced False Claims
Act can bring about.
Judge, if you are confirmed, what actions will you take to
support and strengthen the Justice Department's program to
prosecute false claims cases?
Judge Mukasey. Well, as you know, the mechanism for
implementing False Claims Act charges begins initially with
people who could later be witnesses, people who have knowledge
of dishonest behavior, behavior that hurts the Government, and
they come in and file lawsuits on their own, which are then
sealed and sent to the Justice Department so that it can decide
whether the resources of the Justice Department, after
investigation, whether those resources should be put behind
that lawsuit and whether that lawsuit should then be used to
recover Federal money and put an end to Federal waste. Those
are enormously important.
I had, I believe, only one such lawsuit in my tenure, but I
tried to treat it with the seriousness it deserved. And the
Department is going to have to also treat those cases with the
seriousness they deserve, and each U.S. Attorney's Office is
going to have to be alert to filing of such a case and to
following up on such a case and to interacting with Main
Justice if they have to, to get resources to push such cases,
because they result, as you say, not only in enormous recovery,
but they have a great deterrent value.
Senator Grassley. I think you have answered my second
question, at least the first part of it, and that is, you
obviously seem to vigorously support the Act and its
prosecutions. I told you about some attempts to weaken it. I
would hope that you would commit to not bowing to outside
pressure to weaken the Act.
Judge Mukasey. I am not going to bow to pressure from any
direction to weaken the Act.
Senator Grassley. Would you pledge to work cooperatively
with qui tam whistleblowers--and I think you have answered
partly that by saying you were going to consider these cases,
and they had to be there for you to consider. But would you
cooperate with qui tam whistleblowers that file false claims
cases and ensure that those cases are reviewed promptly by the
Justice Department and do not languish under seal? Because that
is a problem we have come up against.
Judge Mukasey. I am going to try to make sure that they get
reviewed, both promptly and fairly.
Senator Grassley. Then let me ask you about a process,
about this under seal process. Would you provide Congress with
regular updates on the status of False Claims Act cases,
including statistics as to how many are under seal and the
average length of time a case has been under seal?
Judge Mukasey. I am going to examine into whether those
statistics can be gathered. I don't know how easy or hard it is
to find that out, but I think it is an important thing to find
out.
Senator Grassley. Well, at least you know that is one of
the problems we need to know, as long as we oversight this
legislation.
A problem that the False Claims Act has encountered has
been the courts placing jurisdictional hurdles on the law that
clearly were not intended by Congress. For example, in the
Totten case, the D.C. Circuit limited the application of the
False Claims Act to Government grantees. In that case, it was
Amtrak, because the court determine that Amtrak employees were
not Government employees within the terms of the Act.
Earlier this year, the Supreme Court limited the definition
of ``original source'' under the Act in the Rockwell
International case. Not only are these two cases contrary to
the original intent of the law, they place procedural and
jurisdictional hurdles in the way of the U.S. Government and
the qui tam relators who seek to recover Government money lost
to fraud, thus weakening the effectiveness of the law.
In order to fix these inaccurate judicial interpretations,
I have introduced S. 2041, the False Claims Act Correction Act
of 2007, with several of my Judiciary Committee colleagues. I
have asked the Department to comment on this legislation.
However, Judge Mukasey, I want to hear from you that you will
support my efforts to ensure the False Claims Act is clarified
to meet the original goals of the 1986 amendments.
So would you agree to work with me to fix these negative
interpretations of the False Claims Act and to bring court
cases back in line with the intent of the 1986 amendments?
Judge Mukasey. I will certainly work with you to do
whatever we can do to make sure that the qui tam legislation is
enforced the way it was meant to be enforced.
Senator Grassley. This next question on the same point is
easier to answer. Could we get a timely comment from the
Justice Department on S. 2041 after you are sworn in?
Judge Mukasey. Obviously, I am going to have to find out
where in the Justice Department that particular measure is. But
I will find it out and let's see whether we can get a timely
comment, because that is necessary.
Senator Grassley. When we met in September, we discussed my
congressional oversight efforts and how I take that
constitutional responsibility seriously. Oversight is a
critically important part in helping to make Government more
transparent, more accountable, more effective. Everyone
benefits from congressional oversight. More importantly,
oversight lets the American taxpayers understand what their
hard-earned money is buying--or maybe being wasted on, as I
just gave a speech on the Senate floor in regard to the GSA on
this very issue. So I hope that you appreciate the role
Congress has in conducting oversight over the activities of the
executive branch, including your own Department. I trust that
you will be responsive to my oversight activities, and I expect
that my questions and document requests will be answered in a
timely and complete fashion.
Judge, do I have your assurances that you will assist in my
oversight activities, be responsive to requests not just from
me but from Congress as a whole, help me to make the Justice
Department more accountable to the American people? And I am
not asking of your Department anything I would not ask of any
department head.
Judge Mukasey. You have that assurance.
Senator Grassley. As part of my ongoing oversight efforts
with the Department, meaning your Department, and its
subordinate agencies such as the FBI, I have made extensive
document requests and requests for interviews with agents and
attorneys. Oftentimes, these requests for interviews are
rebuffed, and my requests for documents are delayed due to the
lengthy process of ``internal clearance'' at both the agency
and the Department. And, obviously, those two words, ``internal
clearance,'' remind me of nothing but a stonewall.
One noteworthy example among many others is a document
request to the FBI for unclassified--I want to emphasize
unclassified--e-mails related to the issuance of exigent
letters in connection with the use of National Security
Letters. Although I sent this request to the FBI Director on
March 19, 2007, I have gotten nothing so far, despite
assurances from the FBI officials to my staff that they were
``given to the Department''--again, that word--``for
clearance.'' Another stonewall. I guess it is like saying,
``Mr. Mukasey, can you tear down that wall? ''
But, anyway, waiting over 7 months for unclassified e-mails
to such an important oversight matter is unacceptable. I am
concerned that both the FBI and the Justice Department
clearance hinders the oversight process and may be just another
tactic to slow down congressional oversight.
So, Judge, will you commit to ensuring that my document
requests of both the Department and subordinate DOJ agencies,
including the FBI, are fulfilled in a timely manner and do not
languish in the clearance process or are not going to be
stonewalled?
Judge Mukasey. I am going to assure that there is not going
to be any stonewalling. I ought to point out, though, that in
particular as the NSL issue, there are ongoing investigations
there. There has been an investigation by OIG, but there is
more investigating going on, as I understand it, and that may
be part of the reason why it is not quite as easy as it may
seem to clear matters, because that investigation has to be
pursued.
I will certainly look into what the requests are and
whether the information can be provided in some convenient form
that does not in some way step on the ongoing investigation.
Senator Grassley. It would seem to me like in the words of
the Department, it was--or in the words of the FBI, it was
given to the Department ``for clearance.'' It would seem to me
like at least we should have been told if that is what is
holding them up. We were told nothing.
Judge, will you review the clearance process at the
Department--this may even be more important--if there is
something screwy about this clearance process, to ensure that
it is not just a way to put up road blocks and further delay
production of documents to Congress?
Judge Mukasey. I am certainly going to review the clearance
process to make sure that it is, in fact, a clearance process
and not simply a black hole.
Senator Grassley. Will you ensure that my outstanding--
well, you have answered that.
Judge Mukasey, I have been an outspoken advocate for
whistleblowers because I value the candid, unfiltered
information that they provide to Congress about executive
branch activities. At the Justice Department, I watched
carefully the treatment of whistleblowers by the FBI and have
been provided assurances that past practices of retaliation
against whistleblowers are over. This includes assurances that
the FBI has been working to ensure integrity within the Office
of Professional Responsibility, which itself has had internal
problems such as retaliation against FBI whistleblowers.
One, could you please address what safeguards you would put
in place to ensure that all FBI whistleblowers are not subject
to retaliation, be it whether it is the OPR or elsewhere within
the FBI or the Justice Department?
Judge Mukasey. I think I will talk to Director Mueller
about the way in which the FBI deals with complaints and make
sure that those complaints get a fair hearing, and that the
treatment of people who bring complaints can in no way be
characterized as retaliation, that those people ought to be--
people ought to be encouraged to come forward. There is to be a
designated person to whom they come forward, and that they
should be protected.
Senator Grassley. If you keep making that statement within
the Justice Department, you will find out a lot of things that
are wrong, but you will find out also that there is a lot of
retaliation. But you might discourage a lot of that
retaliation, and so I appreciate very much your comment.
I have learned that the FBI and the Justice Department
Office of Inspector General have been using an overly broad
non-disclosure form, and I think that this was supposed to--
this is what I am talking about here, and my staff will bring
that to you. Let me start over again.
I have learned that the FBI and the Justice Department
Office of Inspector General have been using an overly broad--my
time is up?
Senator Feingold. [Presiding.] It is, Senator Grassley.
Senator Grassley. Yes, I am sorry. I am going to ask you to
respond to these questions in writing because I should not
abuse my time, and thank you very much.
Judge Mukasey. Thank you very much.
Senator Feingold. Thank you, Senator Grassley. And I thank
the Chair for allowing me to get my round in this segment.
Thank you, Judge, for being here, for your willingness to
serve our country in this capacity. I greatly enjoyed the
cordiality and the quality of our conversation that we had in
my office, and I will certainly say, although I do not agree
with everything you are saying, you are a much more responsive
witness and nominee than we had in the last instance. And I am
grateful for that and for the thoughtfulness of your answers so
far today.
When we met a few weeks ago, I asked about your view of the
legality of the NSA's warrantless wiretapping program as
described by the President. You said that you were ``agnostic''
about whether the President can authorize violations of a
statutory criminal prohibition. Both Senator Leahy and Senator
Hatch have brought this up, but this was a key issue in my
consideration of the nomination of the last Attorney General,
so I want to return to it.
I agree with you, we are, of course, better off if we do
not have conflicts between the branches. But conflicts do
arise. Conflicts have arisen. And the U.S. Supreme Court has
serious and detailed jurisprudence in this area. I do not think
it is simply a matter of there being gray areas. I think there
is a record and there are cases that help inform us, and I am
sure you, with your experience and excellent record, would
agree with that.
Now, you have had several weeks to consider the question I
asked you, so I will ask you again: Do you believe that the
President has the constitutional power to authorize violations
of the criminal law when acting as commander-in-chief?
Judge Mukasey. The reason for my expression of
agnosticism--and I thought it concerned the Terrorist
Surveillance Program--was that I am not familiar with that
program. I cannot possibly be familiar with that program. And
for me to make a categorical statement with regard to that
program one way or the other I think would be enormously
irresponsible.
Senator Feingold. Well, I think with regard to the law,
though, we can talk about the warrantless wiretapping program
without you knowing all the details. Let's take this. Do you
agree that under Justice Jackson's three-part test the
President's authority to authorize warrantless domestic foreign
intelligence wiretaps without complying with FISA would be at
its lowest ebb in light of the criminal prohibition in FISA?
That seems to me to be something you can answer.
Judge Mukasey. I think under that analysis, the President's
authority, to the extent that it is not a war-based authority
directly involving a war, is at its lowest ebb.
Senator Feingold. In any event, wouldn't it be at its
lowest ebb in this circumstance?
Judge Mukasey. It is certainly at its lowest ebb because it
does not have congressional authorization.
Senator Feingold. And do you think there are situations
where the President nonetheless could direct Government
employees to violate FISA even where his power, as you have
suggested it is, is at its lowest ebb under Justice Jackson's
test?
Judge Mukasey. Attorney General Bell said that FISA,
certainly as originally enacted, did not go to the limit of the
President's authority, and in the area between where that
statutory authority left off and where his authority left off
under the Constitution, on Judge Bell's view--and it is one I
share--I think he would have the authority to act. I think it
is important to recognize that the Fourth Amendment bars
unreasonable searches. It then goes on to speak of when a
warrant is required and when it is not. But there is very
scant, if any, case law on the question of whether intelligence
gathering, as distinct from gathering of evidence for criminal
cases, is something that may very well be much more flexible
than matters relating to the gathering of evidence for
presentation in a criminal case.
Senator Feingold. I guess I would say, Judge, in light of
the Jackson test, which you have certainly said is relevant,
and the clear language of the FISA statute, I find your
equivocation here somewhat troubling. A prestigious group of
law professors wrote the following to the Committee in 2006:
``Every time the Supreme Court has confronted a statute
limiting the commander-in-chief's authority, it has upheld the
statute.'' And FISA specifically states that it is the
exclusive means for conducting foreign intelligence
surveillance of people in the United States, indicating
Congress did not intend to leave any room for what Senator
Leahy referred to as a ``commander-in-chief override.''
So this is, in fact, right in the core of being about these
intelligence issues, and Congress has spoken. I think this is a
very important principle, and I think the Attorney General of
the United States should be comfortable with that. Would you
like to respond?
Judge Mukasey. I think in large measure, because I do not
know what the program involves and where the statute leaves off
and the program begins, I have to limit my response to what it
has been up until now.
Senator Feingold. Well, for the moment I will take
``agnostic'' as better than simply adhering to some extreme
notion of commander-in-chief power. But I certainly hope as you
become familiar with the program, you realize what I believe is
to be the case, that the statute is exclusive in this area and
that it does control.
You have been very critical, Judge, and even dismissive on
occasions, of people who raise concerns about the PATRIOT Act.
In 2004, you gave a speech on it, and you wrote a lengthy piece
in the Wall Street Journal. How did you come to write this
piece? And why did you decide to write about this particular
topic?
Judge Mukasey. The piece was not written for the Wall
Street Journal. I received an award in that year, and it was
expected that the recipient of the award would respond with
remarks, and I responded with remarks relating to the PATRIOT
Act. And it--
Senator Feingold. What award was that?
Judge Mukasey. It was the Learned Hand Medal of the Federal
Bar Council, an award of which I will tell you I am very proud.
Senator Feingold. Absolutely.
Judge Mukasey. And I responded with remarks relating to the
PATRIOT Act, and of what I then thought and, frankly, still
think were some excessive criticisms of it, some of them
without any view of what was in it and what I was recommending
to my audience, which was an audience of lawyers, is that they
get involved in the debate, that they look at the statute, that
they propose amendments to it if they thought they were
necessary, but that they participate in the debate in an
intelligent, informed way, and not in a way that was just
unmoored from reality.
Senator Feingold. Which, frankly, is precisely what many of
us tried to do from day one as they tried to pass the bill. But
how did you conduct your research in writing this piece?
Judge Mukasey. I conducted my research in writing the piece
on looking at some provisions of the statute and at reading
some of the criticisms that had been leveled at it that I
thought were not justified.
Senator Feingold. And did you rely solely on administration
documents and the PATRIOT Act, or did you go into some
independent materials?
Judge Mukasey. I did not have administration documents
relating to the PATRIOT Act. I had the PATRIOT Act.
Senator Feingold. So you pretty much had just the words of
the statute and some articles about it that were critical that
you did not agree with?
Judge Mukasey. Correct.
Senator Feingold. Well, my sense is that your speech did
not seem to take seriously the arguments on the other side. I
understand that the PATRIOT Act became a symbol of Government
excesses after September 11th and that people often blame the
PATRIOT Act for executive branch actions that, you are correct
in pointing out, sometimes did not have to do with the PATRIOT
Act. That is a fair statement. But many serious people did have
legitimate concerns about some provisions of that legislation,
many of which have been borne out in a very dramatic way by
later events and court decisions.
Your speech really kind of suggested that there were no
such legitimate concerns. I would like to know if there were
any other sources that you relied on to evaluate the arguments
of the other side other than the statute. You have answered
that it was simply the language of the statute, but I am
wondering if there was anything else to it.
Judge Mukasey. It was the language of the statute and the
criticisms. I sat and composed that in my home. I did not have
access to any other material.
Senator Feingold. I guess, you know, that concerns me
because I think there is very serious debate on both sides on
this issue, and these provisions have been proven on a number
of occasions, in particular with regard to National Security
Letters. A really frightful report from the Inspector General,
indicating that the failure of Congress to nail down the
statutory language properly led to enormous abuses, suggests
that the concerns that were raised by critics were real and had
merit.
On more than one occasion, you have described concerns
about civil liberties implications of the PATRIOT Act as
``recreational hysteria.'' Despite your very appropriate and
respectful approach in general, I think that one goes a little
beyond respectful disagreement. It reminds me a little bit of
Attorney General Ashcroft's infamous characterization before
this Committee of critics as ``chasing phantoms of lost
liberty.'' I voted for Attorney General Ashcroft, and I agree
with Senator Schumer's remarks that he has proven on a number
of occasions to have stood up for the rule of law in tough
situations. But that comment suggests to me a little bit of a
troubling disregard for the seriousness of this issue.
Since you first made the comment, three Federal judges have
struck down provisions of the PATRIOT Act as unconstitutional.
Are these judges engaging in recreational hysteria? Or do you
think perhaps a re-evaluation of your criticism might be
needed?
Judge Mukasey. I certainly do not think that any Federal
judge of whom I was aware who dealt with any issue under the
PATRIOT Act was engaging in recreational hysteria. What I had
in mind were people who used it as a shorthand for everything
that terrified them, regardless of whether it was in the
statute or not. People who, for example, suggested that they
would not under any circumstance cooperate with any
investigation because they objected to the PATRIOT Act, I
thought that kind of view was inexcusable.
Senator Feingold. Fine, and I think there is some validity
to that. But I would hope you acknowledge the validity of my
concern. Prior to this moment, have you ever publicly
acknowledged that not all critics of the PATRIOT Act are
engaging in reflexive or recreational hysteria?
Judge Mukasey. I believe that I acknowledged it in the very
remarks that included that phrase when I said that it may very
well be that amendments to the statute would be necessary and
that people ought to participate in an informed debate about it
and that there may very well be parts of it that are unwise,
bad as a matter of policy. And I left that possibility wide
open, as I do.
Senator Feingold. Thank you, Judge.
I would like to finish by asking you questions about the
Protect America Act, the law that passed at the beginning of
August to grant the Government vast new wiretapping authority.
Are you familiar with the controversy surrounding the Protect
America Act?
Judge Mukasey. I am familiar with the fact that there is a
controversy. I cannot say that I am up on the details of it.
But I know there is a controversy.
Senator Feingold. Are you aware of some of the concerns?
Judge Mukasey. I am aware of some of the concerns.
Senator Feingold. If you take over the reins at the Justice
Department, are there any particular questions you are going to
ask about its implementation or any particular concerns you
have heard that you will want to try to address?
Judge Mukasey. Obviously, I am going to need to know what
the details are of the program, and I am going to need to know
what actions are protected and how we go about enlisting the
aid of private entities in doing this, because Government
obviously cannot do it alone. Those are the details I am going
to need to find out, the what and the how.
Senator Feingold. I have been very concerned about the
administration's attacks on the efforts by the House of
Representatives to amend that law. I have my own concerns about
the House bill, but it is, without question, a good-faith
effort both to give the administration the authority it needs
and also protect the rights of Americans.
As you evaluate the Justice Department's position in the
reauthorization process, will you commit that you will meet
directly both with critics and supporters of the Protect
America Act to understand fully both sides of the debate?
Judge Mukasey. I will.
Senator Feingold. Thank you, Judge. You have been very
patient this morning.
At this point the Committee will stand in recess until
2:30.
Judge Mukasey. Thank you very much.
[Whereupon, at 12:14 p.m., the Committee recessed, to
reconvene at 2:30 p.m., this same day.]
AFTER RECESS [2:46 p.m.]
Chairman Leahy. I'd welcome everyone back. I apologize.
This went longer than I had anticipated, although His Holiness
the Dalai Lama gave a very, very moving speech, I thought the
President deserves a great deal of credit for being here with
the questions of Tibetan repression versus Tibetan autonomy in
his speech. Edie Whitsell, the other Nobel Peace laureate on
the stand, gave a moving speech. But I think that probably
Senator Harry Reid summed it up best when he said, ``You refer
to yourself as an author. I refer to you as a poet.'' And it
really was poetical.
Senator Brownback, you've been waiting very patiently, and
I yield to you, sir.
Senator Brownback. Thank you. I was at the ceremony as
well, and it was quite moving to have two Nobel Peace laureates
in the room and on the Capitol. It was quite a day.
Judge Mukasey, I want to go at a couple of topics. The
first one I want to go to is, I think, the lead issue you're
going to be wrestling with as Attorney General, presuming
you're confirmed, and I will believe you will be confirmed. I
want to congratulate you in the hopes that would take place.
But I want to look at this particular area of the
interaction between intelligence gathering and civil liberties
in the United States. That's the issue that this committee has
been wrestling for some time about, and you've gotten different
snippets and bites of it.
You've been a trial court judge on two of the lead cases,
really looking at this area, and I think that's why you've been
selected for this job, is to help us sort through this juncture
of our need to gather intelligence as a country to protect our
society and to protect ourselves, to provide for the common
defense, which is the first role of the Federal Government, and
our need, desire, and requirement that we protect the civil
liberties of the people of the United States.
This is a tough issue and it's a tough moment, particularly
with the ways and means of communication, the ease of travel
today, the nature of the world becoming flatter and flatter
each day and people being able to communicate. So I want to go
right into this.
You've continually emphasized the importance of the rule of
law and you've discussed controversial PATRIOT Act provisions.
You didn't rely on an expansive theory of the executive branch,
as I read it, but instead look at the practical impact of each
portion of the statute.
In these discussions, you have balanced the national
security gains from such provisions against any harms to
privacy and civil liberties. You have also emphasized the
rights of individuals to seek remedies under it. I want to ask
you, for the record here, does that remain your viewpoint and
does that remain your general view of what we need to do as a
society and what you need to do as the Attorney General today?
Judge Mukasey. Yes, it does.
Senator Brownback. And then going particularly at this, do
we have your assurances that, if confirmed, you'll vigorously
defend the government's need to gather vital intelligence using
laws like the PATRIOT Act and the Protect America Act and its
successors, along with protecting civil liberties of the people
of the United States?
Judge Mukasey. Yes. Absolutely.
Senator Brownback. On September 26th, a district judge in
Oregon struck down two provisions of the PATRIOT Act dealing
with searches and intelligence gathering. I'm sure you followed
the various legal rulings on provisions of intelligence
gathering in the PATRIOT Act. What's your response to this
ruling, and how would you deal with it as Attorney General?
Judge Mukasey. I've not looked at the ruling in detail, but
the one thing I know about my own rulings as a district judge
is that they are only as durable as the time it takes to get
them to the circuit.
I assume, without knowing, that that decision will be
appealed to the Ninth Circuit, and if necessary, to the Supreme
Court. The word of a district judge, although persuasive and
obviously dispositive in the case before that judge, is hardly
ever the last word on any subject.
Senator Brownback. Are there any particular criticisms of
intelligence gathering laws like the PATRIOT Act or others that
you feel this committee should know about from your viewpoint
and from your vantage as being a judge on several of these key
cases?
Judge Mukasey. There are none that come readily to mind. I
would seize on just two words in the question you asked before
when you talked about--you mentioned my experience as a
district judge, and then you mentioned practicality. The
experience as a district judge teaches me that the abstract is
a very bad place to decide questions like this.
Concrete situations present themselves that confound a lot
of theories, and the best policy is to be guided by general
principles, but to wait for a situation that presents itself
before deciding on a hard-and-fast position as between one and
the other, because reality has a way of undoing a lot of
theories.
Senator Brownback. But to give us a view here, and to give
the American people a view of your advice and counsel that
you'll give to the President of the United States, I can't give
you hypothetical cases. There would be a hundred that could
easily come to mind, actually, but that wouldn't be fair, nor
would you answer it, nor should you answer it.
But is there anything in what I read here, or otherwise,
that would illuminate for us your thinking when you balance
these issues of security needs of the American people and civil
liberty requirements under our Constitution?
Judge Mukasey. I think we need to have a very clear-eyed
idea of what it is we're protecting when we talk about
protecting civil liberties, as well as to recognize the need to
gather intelligence. The rights of free speech are, thank
heaven, very much intact in this country. Some people are
concerned that intelligence gathering interferes with their
rights of privacy.
I think it's important for people to understand, as a
general matter, what it is the Government does in gathering
intelligence, not in detail, obviously, but that it is very
much like what law enforcement does in gathering--in conducting
investigations in the line run of cases. Very often, we're not
talking about anything that is different in kind from what is
done in conducting investigations generally.
Senator Brownback. Just basically extending in the
intelligence gathering operation the same both requirements and
protections as we do presently under criminal law
investigations.
Judge Mukasey. Correct.
Senator Brownback. And I've seen you write on that in some
of your pieces. It's basically extending that same set of logic
and requirements there into the intelligence gathering.
Judge Mukasey. Correct.
Senator Brownback. And that would be a basic mind-set you
would bring to this field and area?
Judge Mukasey. It is a basic mind-set that I do bring to
it.
Senator Brownback. I want to take you to the blind sheik
trial of 1999, the World Trade Center bombing and related
terrorism plots. The lead co-defendant, Abdul Rahman, sought to
introduce expert testimony to show that his actions were
governed by Islamic law. You properly, I believe, excluded the
testimony on Islamic law as irrelevant to the criminal charges
and potentially confusing to the jury.
As the Second Circuit explained in affirming your ruling,
it would not constitute a defense that Abdul Rahman was
justified within the framework of Islamic law. Do you remember
this piece of that case?
Judge Mukasey. I do. And the point of the ruling was that
the issue before the jury was not what Islamic law provided or
didn't, but rather what was in his mind when he made statements
that were proved at trial to his followers about what they
should do, and what was appropriate for them to do, and that
his obligations under Islamic law were totally irrelevant to
that. The issue wasn't Islamic law, the issue was what was in
his mind and what wasn't.
Senator Brownback. And that's the issue that I want to get
at, if we can. It may be a difficult thing to discuss or get
at. But certain countries' courts have held that Sharia,
Islamic religious law, trumps civil constitution. There's been
a case in Malaysia. There was a case earlier this year in
Germany where a Frankfort presiding judge over a divorce court
involving two Muslim Moroccan residents in Germany put aside
German divorce law and ruled instead on the basis of her
understanding of the Koran. The case aroused considerable
controversy, and in June the Justice Ministry in the German
state that she resided in--the judge did--decided against
disciplining the judge.
What would be your thoughts on this were this to arise in
the United States, in a court of law in the United States?
Judge Mukasey. I think we should not create anywhere in
this country enclaves that are governed by any law other than
the law that applies to everybody. We live in this country
under one system of laws. Whatever may be the religious
requirements of any group, we don't create enclaves where a
different law applies, different law governs, and people don't
have the rights that everybody else has outside that enclave. I
would resist that very firmly, the creation of any such
enclave.
Senator Brownback. Good. I think that's the right way to
look at it. It's troubling to a number of people, and it's
troubling to me that you see these sorts of thoughts starting
to come forward, and in western countries, that they move
forward. The Constitution is the law of the land and it governs
all of us, and the laws that proceed out of it that are built
here.
Senator Hatch brought up some of the cases on pornography
that I spoke with you in private about, and I'm pleased to see
your interest and willingness to deal with some of that because
it is an important issue that's affecting our overall society.
In the time I have left, there's one other issue that will come
up--and you'll have a number of issues--on prison recidivism
and reform that I just want to put out in front of you.
A number of us are working on a bill that we worked with
your predecessor on called the Second Chance Act to address
prison recidivism in the United States. We've got a system in
the U.S. where, once you go to jail, two-thirds of the time
you're going back. It's just been a high-cost, revolving door,
very costly system.
What we've put forward on a bipartisan basis is a series of
funding. It is to fund efforts that will cut recidivism rates
in half over 5 years of groups that work within the proposal.
Some of them are faith-based, some are not. A lot of it is
mentoring programs. A lot of it is relationship building for
when the prisoner gets out.
I want to ask your attention to that, and hopefully your
support of this effort, because I think it's one of the key
things that we need to deal with on trying to cut down the
number of people in prisons, given the crowded situation that
we have today.
Judge Mukasey. I certainly agree. I think we need to stop
the system where our prisons are essentially an institution of
higher learning for criminality and where recruitment to
criminality goes on. That's not something we can afford because
these people, after they go in, are going to come out some day.
When they come out, we want them to come out as productive
citizens.
I know that it's hard to generate popular support for
prison programs. It's often seen as kind of the last priority.
But we need to face the fact that those people need to come out
in a productive way, and in order for them to do that they're
going to need some kind of support in the institution to make
sure that that happens.
Senator Brownback. Thank you, Judge.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
Senator Schumer, you're recognized for 12 minutes.
Senator Schumer. Thank you, Mr. Chairman.
Thank you, Judge Mukasey. I thought I'd just share with the
panel and the audience, during the break Judge Mukasey told me
that he was enjoying the debate. He said it was a good back-
and-forth on questions and answers and the kind of
discussions--he didn't say this--but I imagine you might even
have at law school. I know he was a professor there. I told him
that's great, and I think it speaks well of him.
That's what many of us felt was so sorely lacking at the
Justice Department for so many years, and hopefully there will
be lots of honest debate and discussion with the Congress as we
move forward.
My first question is about judicial independence. As you
know, Jack Goldsmith, former head of the Office of Legal
Counsel, wrote a book, this book, called ``The Terror
Presidency''. I know you're familiar with it because we talked
about it during our discussions. It details some of the
pressures brought to bear on Jack Goldsmith by figures in the
administration who wanted him to justify what he thought wasn't
right.
What did you think of this book, Judge Mukasey?
Judge Mukasey. I thought it was superb. Talk about,
couldn't put it down. I was, in a way, sorry when I finished
it.
Senator Schumer. Well, let's hope he doesn't have to write
another one, or you don't have to write one like this.
Judge Mukasey. I don't have a book in me.
[Laughter.]
Senator Schumer. OK. Thanks.
Chairman Leahy. You may after these hearings.
[Laughter.]
Senator Schumer. He's having a good time, Mr. Chairman. Or
not a bad time, anyway.
Goldsmith repeatedly points out that the administration
missed opportunities to put its terrorism policies on sound
legal footing simply by going to Congress. In Hamdan, for
example, the Supreme Court chastised the administration for not
going to Congress, saying the administration could not proceed
with military commissions without Congress's explicit approval.
He describes one meeting where now-Solicitor General Paul
Clement warned that the Supreme Court might not accept the
administration's arguments in support of its detention
programs.
On page 124, Goldsmith reportedly says, `` `Why don't we
just go to Congress and get it to sign off on the whole
detention program?' Others supported this approach, but David
Addington, Vice President Cheney's Chief of Staff, asked, `Why
are you trying to give away the President's power?' '' So they
didn't go to Congress.
Now, do you agree that working with the Congress in the
long run actually enhances the President's power, increases
public confidence, and protects policies from being rejected by
the court?
Judge Mukasey. As a general matter, certainly I do.
Senator Schumer. OK.
And do you commit to working with Congress before moving
forward with any proposal like national security courts?
Judge Mukasey. We can't move forward with national security
courts unless and until we work with Congress. The Constitution
says that it's Congress's power, not anybody else's, to
constitute--as it says ``such inferior courts as Congress may
from time to time create.''
Senator Schumer. Right. OK.
How about with respect to any new surveillance tools that
you believe are needed that are outside of FISA rather than
stretch or ignore FISA?
Judge Mukasey. I'm not in favor, generally, of stretching
or ignoring. On the other hand, I don't know what tools are
going to come to hand or to mind in the future.
Senator Schumer. I'm not asking the specifics. I'm just
asking, if it's your opinion that the law ignores FISA or
stretches it in a somewhat contorted way, would you suggest
going to Congress?
Judge Mukasey. I would certainly suggest that we go to
Congress whenever we can. It always strengthens the hand of the
President to do that.
Senator Schumer. Thank you.
Jack Goldsmith also writes, ``It was said hundreds of times
in the White House that the President and Vice President wanted
to leave the Presidency stronger than they found it. In fact,
at least in my opinion, they seemed to have achieved the
opposite. They borrowed against the power of future
Presidencies, Presidencies that, at least until the next attack
and probably even the following one, will be viewed by Congress
and the courts, whose assistance they need, with a harmful
suspicion and mistrust because of the unnecessary unilateralism
of the Bush years.''
The last Attorney General, by all accounts, was not much
more than a potted plant or a rubber stamp behind closed doors
when the subject turned to working with Congress. I want to
know what attitude and approach you will bring to those
discussions. Do you agree that unilateralism is a bad idea?
Judge Mukasey. Unilateralism, across the board, is a bad
idea. There are powers inherent in each branch, here and there.
Senator Schumer. When you're in the room, the room that
Goldsmith was in, will you go along with a unilateral approach?
Judge Mukasey. I will do what I think the Constitution and
the laws mandate. If the subject under discussion involves an
authority that I think actually inheres on the President, and
for all my endorsement of bilateralism and for all my belief
that it strengthens the hand of the President, there are some
authorities that inhere in him, just as there are some
authorities that inhere in this body.
But if we're talking about something that is a subject on
which he should get the concurrence of this body, or even a
marginal subject, I will try to have a bias in favor of getting
the concurrence of this body because it makes everybody
stronger, whether--
Senator Schumer. Thank you. I think Goldsmith would agree
with that. I think many of us on both sides of the aisle on
this committee would agree with it, and I think it's a
refreshing change.
Now, Goldsmith also writes that some of the OLC opinions he
read when he came into office were ``deeply flawed and sloppily
reasoned''. That's Goldsmith's view, obviously. You assured me
yesterday, and I just want to get this on the record, that you
would undertake a review of existing OLC opinions, if you're
confirmed, on various issues. So just confirm to me that you
will do such a review on the terrorist surveillance program.
Judge Mukasey. I will.
Senator Schumer. Detention policies.
Judge Mukasey. Yes.
Senator Schumer. And torture policies.
Judge Mukasey. Yes.
Senator Schumer. Thank you.
Judge Mukasey. Well, torture--I wouldn't characterize them
as ``torture policies''. But from what you're telling me, is a
policy on doing something unlawful. I don't know of any such
policy, and candidly, I hope not to find one.
Senator Schumer. OK. That's fair enough.
And if you find in this review a problematic opinion or
legal justification, will you modify it, correct it, or
withdraw it?
Judge Mukasey. I will raise it with the people who
originated it at first. As I said, my learning curve has been
pretty steep, and it's ongoing.
Senator Schumer. I understand. But let's say your view is
that it doesn't have the legal justification asserted in the
opinion.
Judge Mukasey. If my view, after consideration, with those
people and with other people that I think I have to talk to is
that it has to change, then it will change.
Senator Schumer. Right.
And will you do so publicly and inform the Congress?
Judge Mukasey. I have to be very, very careful about what I
do publicly--what I undertake to do publicly and when I don't.
I don't know the subject of all those decisions and I need to
consider them and that subject before I make a categorical
promise to come out and announce that I'm changing a policy.
Senator Schumer. If it's not going to create any adverse
interest, if possible, will you do it publicly so we're all
stronger?
Judge Mukasey. I think it's important that government
explain itself to its citizens and to the Congress. That's what
I think, and that's what I'm going to continue to think.
Senator Schumer. Right. OK.
Next, I'd like to move on, talking about independence. I
take it you knew Jim Comey when he was the U.S. Attorney in the
Southern District. What did you think of his commitment to
legal and ethical excellence?
Judge Mukasey. I thought it was admirable and complete.
Senator Schumer. As I mentioned in my introductory remarks,
Comey gave an extraordinary speech to the National Security
Agency on May 20, 2005. He talked about the difficulty of doing
what is right as a government lawyer. He talked about the
difficulty of saying ``no''.
So, Judge Mukasey, here's my question again publicly, the
one I asked you privately yesterday: will you have the courage
to look squarely in the eyes of the President of the United
States and tell him ``no'' if that is your best moral and legal
judgment?
Judge Mukasey. Yes.
Senator Schumer. And even when people are suggesting, as
apparently David Addington has before, that ``blood will be on
your hands'' ?
Judge Mukasey. Yes.
Senator Schumer. In the future, if your Office of Legal
Counsel is unable to find a legal basis for a counterterrorism
program, you agree with the conclusion, and the White House
insists on proceeding with it nonetheless--we've had this
instance, as you know--what will you do?
Judge Mukasey. That presents what I guess I can describe as
a difficult, but not a complex, problem. I will either talk
them out of it or I will push away from the table and leave.
Senator Schumer. Thank you. OK.
This is executive privilege. I have limited time left, so
I'm going to be quick here and not go through it all because we
talked a little bit about this yesterday. This is one area
where I think we had some disagreement.
As you know, many of us felt that the administration was
going much too far in asserting executive privilege,
particularly in the U.S. Attorneys' investigation. One area
where I thought they particularly stretched it was in a claim
of executive privilege when a third party, say the chairman of
the New Mexico Republican Party--that was one specific instance
we had--reached out to somebody within the administration.
I've never heard of executive privilege being used in that
regard. The rationale of executive privilege is to allow
unimpeded conversations within the White House, or even within
an executive branch, to go on without the fear that they might
be made public. I've never heard that where there's a third
party, where there's always a fear it might be made public by
the third party who had the discussion and is not under
executive privilege.
What's your view of this? Have you had a chance to think it
over overnight?
Judge Mukasey. I looked at the letter quickly, and I've
thought about it a bit. I don't know the facts relating to,
what was it, the chairman of the New Mexico Republican Party?
Senator Schumer. Yes.
Judge Mukasey. I don't know who called whom, and why.
Obviously, within the executive there has to be the ability to
gather facts, both from within the executive and from the
outside. I suppose I can envision circumstances in which,
because of the need to gather facts, there may be some question
of privilege. Again, I don't know what the situation was with
respect to the chairman of the New Mexico Republican Party. I
will admit to you that my first reaction to that section of the
letter was: ``Huh?'' But I'd like to take a closer look at the
facts before that's my only reaction.
Senator Schumer. Just keep ``huh-ing'' on that.
Judge Mukasey. OK.
Senator Schumer. Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
To follow on what Senator Schumer was saying about the
question of torture and what you will find, if you find
something that you think is inappropriate, whether you'd change
it, trust me, if you're confirmed, you're going to get an
opportunity to discuss this with us further.
We will be having another hearing after the first of the
year, and by then you will have had a chance to see all these
things. I suspect you will find folks on both sides that will
be asking. But in the meantime, as I've suggested to you before
on these things, you should never hesitate. If you want to
bounce ideas off of Senator Specter or myself, on behalf of the
committee, please do so--an offer we made to your predecessor,
and he never took us up on it.
Senator Cornyn?
Senator Cornyn. Judge Mukasey, as I told you when we met
privately, I was not familiar with your name or your reputation
until I first saw that Senator Schumer had suggested you might
possibly be a good nominee to the U.S. Supreme Court by
President Bush. But I have to tell you, since I've become
better acquainted with your record of public service and your
professionalism, I've grown in admiration of your fine record.
I congratulate you on this nomination.
Judge Mukasey. Thank you.
Senator Schumer. Oh ye of little faith.
[Laughter.]
Senator Cornyn. I have to tell you, I was also profoundly
struck when you started your comments this morning and said
``it's not about me''. What a refreshing point of view here in
Washington, DC. I do believe you when you say that, and you
believe it's about serving your country. I respect that.
I want to just tell you, as I was reading through some of
the things you have written, as a member of what we call in the
Congress ``the recovering judge caucus''--we have a small group
of former judges who now serve in Congress--I admired your
choice of Learned Hand in one of the articles that you wrote
about the Spirit of Liberty and his famous comments in that
speech, that ``the spirit, which is not too sure that it's
right,'' is one that we ought to emulate.
You were talking in this article about the PATRIOT Act, a
statute which you said critics ought to read before attacking
it. You noted that it had become the focus of a good deal of
hysteria, some of it reflexive, and much of it, you said,
recreational.
I was reminded once again that your experience in the court
of law, my experience, and those of us who practiced in a court
of law, the standard for proof in a court of law is
substantially more rigorous than it is in the court of public
opinion. This is particularly true in hearings before Congress;
even though witnesses take the oath, things are said that
probably wouldn't be admitted in evidence in a court of law.
But the one thing that I wanted to ask you about is that
you point out that the PATRIOT Act broke down the wall between
intelligence gathering and law enforcement. You also said that
the previous decision establishing that wall preventing the
sharing of information had been a stark misreading of the law.
Why do you believe that there's been an apparent inability
to communicate to the American people in widely acceptable
terms the difference between a criminal law paradigm and
fighting a war on terror and dealing with a military paradigm?
Judge Mukasey. I can't say, as I sit here, that I know why
there's been a failure to communicate that. I think that it is
very important for government generally to make the case to its
citizens for what it does, not just to do things that promote
their welfare, but make the case. I'm a lawyer, and so I'm the
sort of person who's trained to make the case. I would like, if
I'm confirmed, the opportunity to go out and do that.
And I don't mean I'm just going to go off on some
speechifying tour, but it's one of the things that I take very
seriously, and that is the need to make the case for the
importance of what we do, and for the fact that we do it within
the law. We don't just do it willy nilly, we do it with due
regard for the real interests that are at stake.
Senator Cornyn. And of course, in a criminal law context
you're always punishing an act after it occurred. Obviously the
goal of our intelligence gathering and fighting a war is to
prevent terrorist attacks from occurring.
But there's one other example I wanted to ask you about. In
your experience in trying the 1993 World Trade Center bombing
case, did it occur that a list of some 200 unindicted co-
conspirators was turned over to the defense--
Judge Mukasey. Yes.
Senator Cornyn.--and ultimately found its way into the
hands of--well, it found its way to Sudan, I believe, in the
hands of others who subscribe to the same views on jihadism
that the defendants in that case did. Is that maybe another
example why the criminal law paradigm is not always the best
approach?
Judge Mukasey. The law of unintended consequences operates
there, as it does in a lot of other places. That list had to be
served under the law, and it showed up, we found out, long
afterwards, in Khartoum in the hands of Osama bin Laden, who
happened to have been on that list, and it told him who was on
that list, that he was included, and who we knew about who was
working with him.
Senator Cornyn. Let me pivot quickly here, since time is
short, to the reporter's shield law that's been proposed to
Congress. There are a lot of things that the members of this
committee agree on. The Chairman and I have been working
closely together on reform of the Freedom of Information laws
for the first time in a generation, and I trust we'll be
working with the Department of Justice on that when you're
confirmed. But the shield law that's been proposed has a
provision that provides a qualified privilege to covered
persons.
What I expressed a concern about, and Senator Durbin and
Senator Feinstein also voiced some concerns--I'll let them
speak for themselves--is that the definition is so broad that
it would cover virtually anyone who decides to publish
information.
For example, consider the young jihad enthusiast who uses
the Internet to spread Osama bin Laden's message. A blogger
posts an English translation of a scholarly treatise advocating
violent jihad and lists hundreds of links to secret websites
where his readers can obtain the latest insurgent videos from
Iraq.
As you may know, Judge, this is not a hypothetical
situation. This is the case of a 21-year-old American who
writes his blog from his parents' home in North Carolina. The
New York Times reported this story on Monday in an article
entitled ``An Internet Jihad Aims at U.S. Viewers''.
My concern is that if we pass a reporter's shield law,
which I voted for out of the committee, but with the caveat
that I'm concerned about the breadth of that definition,
Congress will be providing a qualified privilege to anyone who
holds themselves out as a journalist. Do you have concerns
about the breadth of that definition as well and how it would
actually impact your ability to do your job?
Judge Mukasey. That is one, but only one, of my concerns.
Senator Cornyn. And would you care to share with us your
other concerns?
Judge Mukasey. Sure. Even if you narrow the definition to
include people who are reporters for a living, I can recall,
when I was a college journalist of sorts, meeting a TASS
reporter, a reporter for the then-Soviet news agency, TASS. It
was very clear at the time that many, or most, TASS reporters
were in fact KGB agents who were working full-time as
reporters, but indeed were doing a lot of other things. I can't
help but believe that the same is true of many reporters for
Shinhwa.
I don't know that for a fact, it's just a belief based on
my own experience. It would not be above the capability of
someone involved in a terrorist organization to become a
journalist or to have a whole superstructure erected around her
or him that allowed them to present themselves as a journalist,
somebody earning a full-time living as a journalist, and still
be someone who would be protected by the law. So, that's one
concern.
Another concern has to do with the kind of proof that has
to be presented in order to overcome the shield law, proof of
danger to the country, which sometimes is an imponderable, hard
to prove in advance. The example of that list of unindicted co-
conspirators is only one example, but it's a good one. Nobody
could have proved in advance that turning that over was going
to be dangerous, but you can prove it in retrospect. I don't
want to have to look at retrospect, so I'm uneasy about that,
too.
Senator Cornyn. You are no doubt familiar with ``Project
Exile.'' The program is focused on gun crimes and prosecuting
gun crimes under the Federal laws, with mandatory minimums for
felons and others carrying guns illegally, going after the gun
crime as a discrete offense, and punishing that in addition to
whatever other crimes are being committed.
That Federal program gave rise to something in my State,
when I was Attorney General, we called ``Texas Exile'', which
was a very successful collaboration between Federal, State, and
local law enforcement officials to persuade criminals to leave
their guns at home by letting them know that there would be a
significant and meaningful punishment--meaning imprisonment--if
they used a gun in the commission of a crime.
I wanted to commend to you the Project Safe Neighborhoods
follow-on, which is now a substantial program within the
Department of Justice, and ask for your support, or at least
your willingness to work with Congress to try to make sure that
we continue to prosecute gun crimes vigorously, and thereby, I
believe, reduce a lot of the violence associated with gang
activities, drug transactions, and hopefully in the process
save some lives.
Will you give me that commitment to work with us on that?
Judge Mukasey. I sure will.
Senator Cornyn. Thank you.
Let me give you one quick caveat in the one minute I have
left. There is sort of an anomaly. This came to light in the
case of the prosecution of two Border Patrol agents who shot a
drug dealer along the border in my State in Texas, and because
they discharged a firearm in the course of the activities for
which they were convicted, they received an automatic minimum
10-year plus-up to their prison sentence. I'm not sure.
I know there was some conversation about this when Congress
passed these laws, how they would apply to a law enforcement
officer who has no discretion but to carry a firearm in the
course of their duties, and how it might disproportionately
impact that law enforcement officer.
I'd just ask here today, simply, whether you would agree to
work with us, the Judiciary Committee, to look at that statute
to see whether we ought to revisit it, and whether it does
unfairly impact law enforcement officials who do have to carry,
and sometimes discharge, their firearms in the course of their
lawful duties.
Judge Mukasey. That was a very difficult case, and I will,
yes.
Senator Cornyn. Thank you very much.
Thank you, Mr. Chairman.
Chairman Leahy. Just so we'll know what the list is, on
this side we have Senator Durbin, Senator Whitehouse, Senator
Cardin. On the Republican side we have Senators Graham,
Sessions, and Kyl. We will alternate back and forth. It would
be my intention at the end of that, a number of people have
suggested second rounds. We will not begin those today. When
the last person has asked their questions, then we will recess
over until tomorrow. I will consult with Senator Specter on a
time that that will begin, but we will also make sure, of
course, that we let you know.
Senator Durbin?
Senator Durbin. Judge Mukasey, thank you for being here.
Thanks for your service on the court and your willingness to
have your name submitted for the Attorney General's position.
Thanks to your family and friends, some of whom have been
friends of mine for a period of time. I'm glad that they're
with you today.
Several weeks ago, you were kind enough to come by my
office. We had a short time to have a conversation. You
referred several times here to your learning curve in this
process, and so the questions I'm about to ask may be
attributable--your earlier responses may be attributable to
learning curves, but I want to clarify and make sure I
understand where you stand on several things we discussed in my
office.
One of the things which we talked a lot about was this
issue of torture. You said at one point, ``There's a whole lot
between pretty please and torture,'' and you suggested that
coercive techniques short of torture were effective. I would
like to ask you so that it's clear in my mind, will you now
acknowledge that it is illegal and inconsistent with our values
as a Nation to subject detainees to cruel, inhuman, and
degrading treatment?
Judge Mukasey. It is unlawful to subject detainees to
cruel, inhuman, and degrading treatment, there is no doubt. I
don't think that's inconsistent with what I said.
Senator Durbin. And we talked about the McCain statute,
which I co-sponsored and had a 90-9 vote in the Senate. I asked
you about whether the McCain statute on torture would be
controlling in certain circumstances, and you said at one
point, there could be a point where the President's
constitutional authority would override this statute. I would
like some clarification on that, if you would, please.
Judge Mukasey. OK. I don't recall the context in which I
said that the President's authority could override a statute. I
would be very surprised if that context were the McCain
statute. There is some authority that the President has that is
inherent in the President and that he has willy nilly.
There have been statutes that Congress has passed that
every President, since the time they were passed, has taken the
view are unconstitutional in that they encroach on the
President's power, the President's authority. The most notable
one--at least to me the one that comes to mind--is the war
powers resolution. We all know that it's there. We all know
that every President, since the time it was passed, has taken
the view that it is unconstitutional and will not be obeyed.
Mercifully, we have never come to a test of that, and I
hope we will never come to a test of that. What's happened is,
each branch has understood that push can't come to shove on
certain issues, that we have to try to work it out the way
people work things out in a democratic society, such that not
everybody gets everything they want, and sometimes both sides
walk away saying, ``Could have beat them.'' But we don't have
to find out who could have beaten whom.
Senator Durbin. For the record, do you believe the McCain
torture amendment or statute is an unconstitutional
infringement on the power of the President?
Judge Mukasey. I do not.
Senator Durbin. I also asked you about Guantanamo. You
referred to it with a colorful phrase. You referred to it as a
``fright wig'' used by critics of the administration, and
defended Guantanamo on the grounds that detainees receive
``three hots and a cot, health care better than many Americans,
and taxpayer-funded Korans''. That's what you said when we met.
What I heard in response to your questions from Senator Kohl,
is that that may not accurately characterize your feelings
about Guantanamo.
Judge Mukasey. My feelings about Guantanamo, a place which
I have not visited--I have not visited it, but I have spoken to
people who have, is--my feeling is pretty much what I told you
in a rather pungent, conversational way. I don't think people
are mistreated there. That is not to say that the problem of
indefinite detention of a large number of people has not become
a problem for us. It is a problem for us. It's an ongoing
problem. We've got to get our hands around it and resolve it,
and it's due, as I indicated before, in large measure to the
fact that getting ownership of that problem is a difficult
thing in government. I recognize that.
Senator Durbin. I suppose this treatment is a matter of
interpretation. If one is speaking of torture of the Guantanamo
detainees, that is one category of mistreatment, for sure.
Detention without due process may be another category of
mistreatment that Senator Specter has addressed, along with
Senator Leahy, on the issue of habeas corpus. Would you concede
that holding these detainees without charges for years, and
then in many cases releasing them without charges, is a form of
mistreatment?
Judge Mukasey. What one regards conversationally as
mistreatment or not, I think, is probably in the eye of the
beholder. Under Hamdi, it is lawful. Hamdi said, as far as I
know, unequivocally, that it is lawful for the President to
detain people, even Americans, captured on a field of battle
indefinitely.
That's not to say that, as a matter of policy, it's a wise
thing to do, that it doesn't hurt us with allies on whom we
rely for support in fighting the people we have to fight, and
that it might not pay to carry forward a principle for the sake
of carrying forward a principle when we wind up cutting our
nose off to spite our face.
Senator Durbin. I won't go any further, because I think
your responses to Senator Kohl's questions were very clear. I
think that's a matter of record, your position on Guantanamo.
I'd like to ask you about the Office of Legal Counsel in
the Department of Justice, currently being held by an interim
appointment, Mr. Bradbury, who has been brought before this
committee and pending before the Senate for some time now. I
have a hold on his nomination because of his refusal to answer
questions, to produce memos, even some most recently disclosed
by the New York Times involving some things that he's said or
done in that capacity.
I would like to ask you, and I might also add one area that
you're probably aware of, the Office of Professional
Responsibility initiated an investigation into the Justice
Department's offices relative to the NSA program. In an
unprecedented move, President Bush personally denied security
clearances to Justice Department investigators and blocked the
investigation. Documents provided to the Senate Judiciary
Committee suggest that the internal investigation was looking
into whether that office, under Mr. Bradbury, engaged in
misconduct while he was the acting head.
I've sent a letter with Senators Kennedy and Feingold
asking the President to allow the investigation to go forward,
and yesterday sent another letter saying it's time to remove
this interim appointment because this man is going nowhere
unless there's much more complete disclosure.
Do you agree that it would be inappropriate for the Senate
to confirm a Justice Department nominee who's under
investigation by the Office of Professional Responsibility?
Judge Mukasey. I don't know the investigation. I have not
heard of the investigation by OPR to which you refer. I know
there was an OIG investigation. I know of an OIG investigation
with regard to national security letters and the conclusions
that it drew. I was unaware of an OPR investigation.
Senator Durbin. I don't want to catch you by surprise then.
I'll send a followup set of questions to you, and one of them
will be specifically, if you're confirmed, will you recommend
to the President that the OPR investigation of the Justice
Department's role in the NSA program be allowed to proceed?
Judge Mukasey. That's not something I can answer in the
abstract. I need to see what the investigation is about.
Senator Durbin. I understand that.
Judge Mukasey. I am aware, from my own experience, of how
relatively easy it is to have an OPR investigation get under
way because of some comment in an opinion or something of that
sort.
Senator Durbin. Let me send you that in writing and allow
you to reflect on it and take a look at it before you give a
complete response, out of fairness.
I have very few minutes, and I wish I had much more time
for this particular question. As the chief law enforcement
officer in our Nation as Attorney General, you will have
special responsibilities. One that continues to recur
throughout your lifetime and mine, and even as recently as the
last week or two, is the issue of race and justice in America.
Clearly, we still have a major hurdle to overcome in
establishing equality under the law.
I'd like to ask you, if you were prepared, what initiative
would you take to try to bring some closure to this issue which
continues to tear America apart?
Judge Mukasey. I can't, unless I indulge in a conceit that
I don't really have, entertain the view that we're going to
achieve closure in my lifetime, or even in my tenure. I believe
that the Civil Rights Division of the Justice Department--I was
trying to say this to Senator Feinstein when our time ran out,
and I'm glad you asked about it because now I get the chance to
continue.
The Civil Rights Division is part of a movement and a
process that is nothing less than genius in our politics, and
that is that is that a stain on our history can start to be
lightened, and hopefully at some point wiped out through the
use of the law rather than in the streets and with arms, as it
has been elsewhere. We have to make sure that bit of genius is
preserved.
I would make absolutely certain, and will make absolutely
certain, that the Civil Rights Division, which celebrated its
50th anniversary this year, that people there understand that
that's the mandate and that they don't forget it.
Senator Durbin. I might say that that is one division which
many of us believe has very low morale at this point, for a
variety of reasons. I share your feeling about the important
mission that we have, and I certainly hope that you will
dedicate yourself to restoring morale and giving them the tools
and support they need to restore their reputation.
Judge Mukasey. Let me say just one thing. In the course of
preparation for these hearings, I was staying near the Justice
Department and happened to run into, on a couple of different
days, lawyers from the Civil Rights Division lining up to get
their coffee as I was lining up to get mine. And they were
energized, they were focused. They seemed to be very happy and
pleased in their task, and I think they are very much
characteristic of the people within that division, the people
within the Department, and those are the people who I think
we're going to depend on.
Senator Durbin. Perhaps it's a hopeful view on their part
of your nomination. Thank you very much.
Chairman Leahy. Thank you, Senator Durbin.
Senator Graham?
Senator Graham. Thank you, Mr. Chairman.
Judge, I am sure you're going to make a fine Attorney
General, and this is just the price you have to pay to talk to
all of us. But I think it will be worth it, for you and the
country at large.
But you've had a lot of good questions on both sides of the
aisle here about the role of the Congress, the courts, and the
executive branch when we're at war. And I guess the first
question I would like to ask you, since you're a New Yorker, do
you consider the attacks of 9/11 a criminal act or an act of
war? And you've got to pick between the two.
Judge Mukasey. If I've got to pick between the two, they're
an act of war.
Senator Graham. Well, I agree with you, so you're in good
standing with me already. See, I think we're at war. I think
the law that one would apply, if you looked at this as a war,
would be different than domestic criminal law. I've been a
military lawyer for 25 years and I'm very proud of our military
legal system. Because you apply the law of armed conflict
doesn't mean you don't have due process.
Now, when it comes to detention and interrogation of
unlawful enemy combatants, here's some of the laws that I have
made a list of that apply to the situation about how we detain
and interrogate someone that we believe to be an unlawful enemy
combatant. The Supreme Court, in the Hamdan case, said the
Geneva Convention applies. Do you agree with that? That is now
the law. I don't agree with the court's holding, but that's
what they said.
Judge Mukasey. If what they meant is that it applies to
interrogation, then it clearly applies to interrogation. I--
Senator Graham. Judge, they said that Common Article 3
applied to the war on terror. Now, I disagree with that, but
that is the law as I understand it. That Common Article 3 now
applies to the war on terror.
Judge Mukasey. If that's their reading on something other
than a procedural basis--
Senator Graham. I think that's their--to go back. If you
disagree with me you can tell me in writing, but I believe it
does. Even though I wouldn't have decided it that way, that's
the court.
The Uniform Code of Military Justice is a congressional
statute that regulates the conduct of the military vis-a-vis
many things, but including how one treats a detainee. Are you
familiar with that?
Judge Mukasey. I know of that. Yes.
Senator Graham. Do you think that's a lawful thing for
Congress to do, to replace restrictions on our military when it
comes to how they will treat somebody in their capture?
Judge Mukasey. On our military?
Senator Graham. Yes.
Judge Mukasey. Yes.
Senator Graham. It's a crime--OK. Good. So for the soldiers
who may be watching this hearing, the Uniform Code of Military
Justice regulates your conduct regarding someone that you may
find or capture on the battlefield, and I think you're taught
what to do there. I just wanted to acknowledge it, and that is
a power that Congress has and we're going to have to live
within that.
The Military Commissions Act also regulates the detention,
trying, and the treatment of enemy prisoners. That's a
congressional enactment. Do you agree that that's a valid legal
document?
Judge Mukasey. Yes.
Senator Graham. OK.
The Detainee Treatment Act is an enactment by Congress that
regulates--I think you've talked about it pretty well--what we
can and can't do to someone we capture, cruel, inhumane, and
degrading treatment. Do you consider that a valid source of
law?
Judge Mukasey. Yes.
Senator Graham. OK.
We have many international treaties that regulate our
conduct because we're signatories to those treaties. Do you
think it's incumbent upon us to live up to those treaty
obligations?
Judge Mukasey. I think it's incumbent upon us to live up to
them. The question of whether they're self-executing or not is
a very delicate question and I'm--
Senator Graham. Fair enough. The only point I'm trying to
make is that we've had a fight that's been unnecessary for far
too long between the Congress and the administration over what
roles we play. I am convinced that we're only going to win this
war if we act in concert to the best of our ability.
I really applaud your testimony earlier when you said that
America is at its strongest, not only from a legal point of
view but from just an effective point of view, when all three
branches are on the same sheet of music.
Now, here's where I part from some of my colleagues about
what the law requires of the United States: would you advise
the President of the United States to allow unlawful enemy
combatants to have habeas rights, to grant them habeas corpus
rights at Guantanamo Bay?
Judge Mukasey. I would not advise the President to grant
rights beyond those that they already have, which include, as I
read it, eventually, an appeal that is, certainly on an
appellate level, more substantial.
Senator Graham. Right. The big issue for us as a country
is, who should determine the status of a potential enemy
combatant? It is my view that, under the Law of Armed Conflict,
under Geneva Convention Article 5, that is a power reserved to
the military. A habeas petition would allow the potential enemy
combatant to take their case to a Federal court of their
choosing and the power to determine the status would be given
to a Federal judge, not to our military, and I object to that.
How long have you been a Federal judge?
Judge Mukasey. I was a Federal judge for 18 years and a
bit. Almost 19 years, actually.
Senator Graham. My concern is that if we allowed every
enemy combatant to have a full-blown habeas trial, we would be
giving Al Qaeda and other groups that fall into the designation
more rights than the Germans and Japanese, and that we would be
creating chaos for our country in the war on terror.
I would read a quote here from Justice Jackson in the
Eisentrager case. Are you familiar with that at all?
Judge Mukasey. Yes.
Senator Graham. He said, ``It would be difficult to devise
more effective fettering of a field commander than to allow the
very enemies he's ordered to reduce to submission to call him
to account in his own civil courts and divert his efforts and
attention from the military offensive abroad to the legal
defensive at home, nor is it unlikely that the result of such
enemy litigiousness would be a conflict between judicial and
military opinion, highly comforting to enemies of the United
States.''
Do you associate yourself with that concern?
Judge Mukasey. Yes, I do.
Senator Graham. Now, as I understand the Military
Commission Act, every detainee at Guantanamo Bay will have
access to Federal court. Is that your understanding?
Judge Mukasey. Eventually. After the c-cert process is
completed.
Senator Graham. And the DC Circuit Court of Appeals will be
able to look at two things: whether or not the evidence
justifies the finding by the military of a preponderance that
the person is, in fact, an enemy combatant; and they will also
look at whether or not the procedures in question are
constitutional. Is that your understanding of the law?
Judge Mukasey. It is.
Senator Graham. And that's the Vizmuller case, is that
correct?
Judge Mukasey. I believe so.
Senator Graham. I have proposed for many years now, and I
will reassert this idea, that one way to make this c-cert
process better would be to provide military legal counsel to
unlawful enemy combatants. How does that idea strike you?
Judge Mukasey. I don't know what the process is now. I
certainly--I mean, I said when--in the Padilla case that once
you conceded that somebody had the right to file a habeas
petition, there was no practicable way, particularly in that
case, for them to do it other than through a lawyer.
Senator Graham. One of the practical effects of an enemy
combatant determination is that there could be a de facto light
sentence, because this is a war without a definable end. Do you
agree with that?
Judge Mukasey. Yes.
Senator Graham. So we need to come up with a process that's
a bit of a hybrid of the traditional Law of Armed Conflict.
Judge Mukasey. Yes.
Senator Graham. I've also suggested in the past, and will
suggest again in the future, that the tribunals in question,
the combat status tribunals, be managed by a military judge. Do
you have a problem with that?
Judge Mukasey. I do not.
Senator Graham. OK.
Well, we'll be talking much further in depth about these
issues because they're new, they're novel, and they're
important.
I would end with this, Mr. Chairman. I am often asked
about, why do you want people to have lawyers who will cut our
heads off, and why do we not waterboard people to get
information to make us safe? Because at a certain level,
Americans understand that the people we're fighting have
absolutely no boundaries, and some of them believe the law is a
nicety and is a weakness.
I believe that the law is one of the strongest things we
have in our arsenal against our enemy. Do you agree with that
statement?
Judge Mukasey. I do.
Senator Graham. And if you want to throw everything that
America has against the enemy, the best thing we could throw at
the enemy is a process that the world would want to emulate and
be proud of. Do you agree with that?
Judge Mukasey. I do.
Senator Graham. Wouldn't it be nice to show Sunnis, Shi'as
and all those who have grudges and seek revenge that there's a
better way, and there's no better way for America to lead the
world when it comes to the war on terror than to take an enemy
who has done us terrible harm and treat them in line with our
values, give them lawyers when they would give us none, have a
process where a civilian court could review the military work
product, and let the world know that whatever happened to the
enemy combatant wasn't a result of religious prejudice, anger,
or revenge, but was a result of due process of law. Don't you
think that's the best way to fight this war?
Judge Mukasey. I do. I'm reluctant to add a footnote, but I
have to.
Senator Graham. Please.
Judge Mukasey. And that is that so long as we don't
compromise our ability to gather intelligence as we do that.
Senator Graham. And it's my understanding that every one of
the provisions I just outlined about what happens to a detainee
in our charge, that you support that the law be applied, that
when we capture someone, that we do have to live within the law
that applies to the detainee's treatment. Correct?
Judge Mukasey. Yes.
Senator Graham. Now, Sheik Muhammad, I was at his combat
status review tribunal, there's allegations that he may have
been waterboarded. For about an hour and a half, he spoke about
his involvement in 9/11 and other acts of terrorism without one
person touching him, so I have no doubt that he did what he
said he did. But if there was evidence obtained through
waterboarding, would you be comfortable with that evidence
being used in a military trial?
Judge Mukasey. I don't know what's involved in
waterboarding. I would be uncomfortable with any evidence being
used in a trial that's been coerced. So, I'm--
Senator Graham. And one of the reasons you'd be
uncomfortable is because what we set in motion could come back
to haunt us. There was a proposal last year--and I will end on
this thought--that in our military commission system it would
be OK for the prosecutor to hand a document or a piece of
evidence to the jury marked ``classified'' to be considered on
innocence or guilt and never shared with the accused because of
national security concerns.
My fear of that procedure would be one day that maybe one
of our guys or gals would be caught in Iran, trying to figure
out what the Iranians are up to and that there would be a trial
conducted in Iran where the Iranian judge would receive a
document from the Iranian prosecutor marked ``classified'',
never shared with the American accused. The person would be
found guilty, sent to the death chamber, and we would lose the
right to object to that proceeding.
The point I'm trying to make is, what we do now on our
watch can come back to affect us in other wars. Do you agree
with that?
Judge Mukasey. I agree that it can. Yes.
Senator Graham. You're in a unique position, in a unique
time in American history, to make sure that we balance our
national security interests against the values that make us
stronger than our enemy, and I have every confidence you will
do a good job. Thank you.
Judge Mukasey. Thank you.
Chairman Leahy. If I might just use the prerogative of the
chair, I just want to make sure I fully understand something.
You said that you would not want to compromise our ability to
gather intelligence. You're not suggesting, are you, that we
compromise our ability to gather intelligence if we exclude
torture?
Judge Mukasey. No. The question concerned providing
counsel, and there's often a question about the timing of that.
People gathering intelligence need time to talk to somebody, to
use all the techniques that need to be used to gather
intelligence, and to the timing.
Chairman Leahy. And we speak about, if we had somebody who
was a serial murderer, a U.S. citizen committed a series of
heinous crimes and would obviously pose a danger to the
population was brought before you as a judge and said, we have
a confession, we got it after we tortured the person for 3
days, you wouldn't allow that confession.
Judge Mukasey. Correct. It's out.
Chairman Leahy. Thank you.
Senator Whitehouse?
Senator Whitehouse. Thank you, Mr. Chairman.
First, let me just take a moment to associate myself with
the several propositions that Senator Graham just enunciated
regarding the value of the rule of law as a force for good and
for strength on the part of our country and the world, and his
remarks regarding a judicial system that the rest of the world
would wish to emulate and be proud of. That was very well said.
Second, I'd like to recognize Director Freeh, who is here,
who I had the honor of working with when I was the U.S.
Attorney for Rhode Island. He was the Director of the FBI, and
the Federal Bureau of Investigation, under his watch, did some
really exemplary work in Rhode Island.
If I may, I will take a sentimental moment to reflect on
the accomplishments of Dennis Aiken, who led a remarkable
undercover investigation into municipal political corruption
and is shortly to retire. George Rosenberger, who led a very
effective investigation into a criminal gang organization that
was probably better covered by wire tap and other surveillance
than some major Hollywood productions. He was exceptional. He
has just retired. And Special Agent John Truslow, who did a
spectacular job of making a really precedent-setting
environmental case, and shortly thereafter passed away from
brain cancer.
I raised these names not only because Director Freeh is
here, but because they also represent, along with so many other
people who you will shortly, with luck and approval of this
committee and the Senate, be supervising and in charge of
within the structure of the Department of Justice.
And I have to tell you, I'm worried about the Department of
Justice. It is an institution that is very significant in
American life, and I think it has sustained significant damage.
I'm not convinced that simply replacing the person at the top,
although necessary, is sufficient to cure the problems that I
see. I wanted to discuss some of these issues with you, Judge
Mukasey.
First, just a completely open-ended question, but I would
like to get you to say a few words for the record about what
you consider the role of the U.S. Department of Justice to be
in this country and what its posture should be to the American
people.
Judge Mukasey. The role of the U.S. Department of Justice
is to uphold the rule of law. This is a country that defines
itself--I think it's the only country in the world that defines
itself--by a written Constitution, the supreme law of the land,
and nothing else. We don't define ourselves by blood, or
territory, or a particular history. We define ourselves by the
rule of law.
So, the Department of Justice is central to this country's
definition of itself. I don't mean to put myself at the center
of this. As I said in my introductory statement, this isn't
about me. It's about the Department of Justice. That is, to me,
its role.
Senator Whitehouse. And what should the American people be
able to look to it for?
Judge Mukasey. They should be able to look to it for the
constant, impartial, principled application of the law.
Senator Whitehouse. The Department of Justice is an
institution. It is an organization. It is a bureaucracy. It has
rules. It has regulations. It has structure. It has traditions.
In my view, many of those structures, traditions, practices
have been developed over many years by people who work in that
Department and who see it as you do, as safeguards to help
assure that the decisionmaking that takes place in the
Department of Justice is protected from political interference,
personal animosity, other improper motivations.
As much as I think there has been a failure of leadership
at the Department of Justice and a rot from the top, as I said,
I don't think replacing leadership alone is necessarily enough,
because my sense is that there are structural issues that need
to be set right.
I think of things like the rule that lasted for many years,
that limitation between the--conversation between the White
House and the Department of Justice over pending investigations
would be strictly limited, which was taken apart by two
separate memos in the previous administration of the Department
of Justice.
I think about the longstanding policy that investigations
would not be announced shortly before elections where they'd be
likely to influence the outcome of an election, a restriction
that was recently removed from the manual of the Department of
Justice.
I think about the independent appointment of U.S. Attorneys
as men and women from their local communities who get advice
and consent of the Senate and who are not fired, except for
cause, as a structural protection that helps the Department in
a kind of internal check-and-balance mode.
I think of the role of career employees as a sort of
steadying influence on the Department of Justice, and I think
of, even in the book by Mr. Goldsmith that Senator Schumer
mentioned, he discussed, just within the OLC component of the
Department of Justice, the ``norms and practices'' that had
developed.
My question to you, sir, is what will you do to inquire
into what norms, and practices, and protocols, and rules, and
regulations need to be restored, need to be brought back into
service to perform the function that they were set up to, which
is to provide those protections for the Department of Justice
in the exercise of its duties?
Judge Mukasey. To the extent that I've done any management,
including management of the court that I served on--which I
recognize was, compared to the management that I'm about to
undertake, a sandbox. I acknowledge that. I'll bring that out
on direct--my style has been a hands-on style. I'm not talking
about micromanagement, I'm talking about taking responsibility
for decisions and making myself aware of what was going on in
the organization that I was nominally the head of so that I
didn't get surprises. I will do the same thing in the
Department.
I will talk to the people in the Department. There is such
a thing as the Attorney General's Advisory Committee, which, as
you know because you were a U.S. Attorney, is a body of U.S.
Attorneys drawn from all over the country on a regional basis
who do, or should--and will if I'm confirmed--meet regularly
with the Attorney General so that the Attorney General
understands what is going on in those offices, what their
problems are, and can do something to help them out and to
maintain uniformity of standards.
I will talk to not only the Assistant Attorneys General at
the head of each of the divisions within the Department, but
also the people within their units. I want to hear not only
what the person at the top is saying, but what the people below
are saying so that I can figure out whether decisions are being
properly made, and if necessary, tweak them a bit.
I believe that I should have confidence in Assistant
Attorneys General who were appointed to head each unit, and I
will. But they're not going to be the exclusive source of
information for what's going on. I am also going to talk to
people who have served in the Justice Department in the past,
people I know, some people I don't know.
Senator Whitehouse. I would--
Judge Mukasey. And finally, I'm going to talk to, as I told
Chairman Leahy when I met with him, this body and the members
of it on a regular basis. Your collective experience with the
Justice Department is way greater than mine, and would exceed
mine if I served from now until I'm cold. So, I would be
foolhardy to abandon that kind of resource, and I won't.
Senator Whitehouse. I appreciate that you have said that,
and I will be very interested in pursuing that process because
I think that when we spoke earlier--by the way, I appreciate
not only the time you spent with me, but the time you spent
with all of my colleagues. You have reached out to the Senators
in a very forthcoming fashion and I'm grateful to you for that.
In the course of our discussion, I used the example of a
ship's captain who has a fire on board or who hits a rock, and
once you've got the fire out or stopped the water coming in,
the very first thing that you do is a damage assessment. I
would urge you to take the discussion that we have just had and
go forward with a really fairly formal damage assessment using
all of the tools that you have just indicated you were willing
to use and see what needs to be put right.
In that regard, two specific things I'd like to ask you
about. One, is there were memoranda that widely opened the
Department of Justice to contact about ongoing investigations
from the White House and other officials that is counter to
very recent traditions documented in letters between the
previous Attorneys General and previous White House counsels.
Senator Feinstein again discovered that the manual had been
rewritten to take out the provisions discouraging the
announcement of investigations at a time when they'd likely
influence elections. There may be hundreds of other such
matters, but those are two that, in the one minute I have left
with you, I'd like you to touch on.
Judge Mukasey. The question of contact of people within the
Department about cases is something I've had occasion to
address in meetings, beginning with Senator Schumer and
continuing to other meetings as well. There is a very small
list of people who can be contacted by anybody who is an
elected official or who purports to speak for an elected
official about a case.
The only proper response by anybody else who's contacted is
to make that person aware of the people that they can properly
contact and end the conversation. That's going to be the
standard that will govern, and I will do that. I will make that
known and that will be the policy, and that will be the rule.
Senator Whitehouse. And ``elected official'' includes the
President?
Judge Mukasey. Most emphatically, it includes the
President.
Senator Whitehouse. Very good.
And with respect to the manual regarding the disclosure or
announcement of investigations immediately before elections?
Judge Mukasey. I think it is obvious that the closer you
get to an election when you have a politically sensitive
investigation, the less and less can be the justification for
announcing it, unless there is some overriding need to go
forward, such as a lapse of the statute of limitations or
something of that sort. But other than that, that window keeps
closing.
Everyone involved in an investigation has to be sensitive
to the possibility that announcing an investigation or a
prosecution can influence the outcome of an election, and that
that is not what investigations are supposed to be for, or
prosecutions are supposed to be for.
Senator Whitehouse. Thank you, sir.
Mr. Chairman?
Chairman Leahy. Thank you. We'll take about a 5-minute
break and then come back. Probably a 10-minute break, then come
back. Thank you.
Judge Mukasey. Thank you.
[Whereupon, at 4:06 p.m. the hearing went off the record.]
AFTER RECESS [4:20 p.m.]
Chairman Leahy. Thank you. Judge, thank you very much. And,
I must say, your family are the most patient people. I was
talking with Judge Freeh, Louie Freeh, a few minutes ago during
this time that we were--his patience and all your support is
here.
Senator Cardin? Speaking of patient people, Senator Cardin
of Maryland.
Senator Cardin. Well, thank you very much, Mr. Chairman.
Judge, the good news might be that I might be the last
person to question this round. We'll see whether other members
show up.
But, first, I want to thank you. I want to thank your
family for your willingness to serve our country. These are
difficult times and we very much appreciate your willingness to
step forward. And I must tell you, I've been very impressed by
the direct answers that you've given to very important
questions.
When you and I met, I talked about the independence of the
Department of Justice and the Attorney General and, I must tell
you, I'm very impressed by your answers today. I think they are
pretty clear and I think we need that and I think it will go a
long way to the morale within the Department of Justice.
I want to return to the Civil Rights Division. It seemed
like that got tacked on as the end of two rounds of questions,
but I want to spend a little time on it with you, because I
think it's very, very important.
I am concerned about what's happening within the Civil
Rights Division. This is the 50th anniversary of the Voting
Rights Act, in which the Civil Rights Division was created, and
it has a proud tradition of fighting to enforce
antidiscrimination laws passed by Congress in the areas of
voting rights or civil rights or housing, elections,
employment, so many areas that the division has been active
over the last 50 years.
I usually judge how a company or an employer does by the
record, the facts. If a company tells me that they support
diversity and open opportunity, if we look at their employment
practices and see few minorities, I question that.
So in the Civil Rights Division, I am extremely concerned
about the lack of types of cases that have been brought and the
type of cases that have been brought over the last 6 to 7
years. There are very few cases that have been brought to help
minorities as far as their rights to vote and there have been
very few disparate cases brought in employment and in housing
compared to previous administrations.
So I do want to give you a chance to tell us your
commitment to making the Civil Rights Division the priority it
needs to be, and it starts, first, with the Assistant Attorney
General. That position is vacant and I would like to know your
game plan for filling that office.
I must tell you, one more point and then I'll give you a
chance to respond. It seems to me that we should have somebody
in the Civil Rights Division that has experience in civil
rights law. You wouldn't put somebody at the Antitrust Division
that didn't know the antitrust laws. You wouldn't put somebody
in the Criminal Division that didn't know criminal law.
You need somebody that has a background in civil rights and
someone who is respected among the advocacy community.
I hope this will be a priority and I hope you will give
us--maybe shed some light as to how you plan to proceed with
the Civil Rights Division.
Judge Mukasey. I spoke briefly to the current head of the
Civil Rights Division. I spoke briefly, also, to a woman named
Grace Chung Becker, who is in the Civil Rights Division in a
senior position, and impressed me, during our, admittedly,
brief conversation, with her familiarity not only with the law,
but what, in fact, the division is doing and I--she's a person
who inspired, in my meeting with her, a great deal of
confidence.
I'm not, as you know, the nominating authority for doing
this, but I was very well impressed with her and I would hope
that someone of her caliber, if there's to be a change at the
top in the Civil Rights Division, would step forward and
undertake the leadership of that department.
Senator Cardin. My expectation is that the President is
going to rely heavily on your views on many of these decisions.
There's a lot of openings at key positions within the
Department of Justice, many that require confirmation by this
committee, and I expect the President is going to be relying
heavily on your recommendations for many of these appointments.
I would feel a little more comfortable just to hear your
priorities for the Civil Rights Division. I think that's an
area that requires the Attorney General to spend some time in
understanding the importance and letting it be known to the
Department of Justice the importance of that division.
Judge Mukasey. The priorities of the Civil Rights Division
are both the historic and the current. Historic, equal
protection is a principal goal and a principal mandate of that
department.
More recently, prosecution of hate crimes has become,
sadly, much a priority and, regrettably, when you have one of
those crimes, other adult people get it into their minds to do
the same and you get an outcropping and a proliferation of that
sort of thing, and we've seen some of that, although I think
it's being tamped down gradually.
And the prosecution of hate crimes is something that the
Civil Rights Division is very actively involved in and has to
continue to be actively involved in.
Senator Cardin. Well, since you mentioned hate crimes, I'm
glad you did, because I think the number of episodes in this
country has increased dramatically, including my own State,
where we had the newest episode at the University of Maryland
and there's been throughout the country recently, it seems
like, a lot of new episodes that are very disturbing.
There have been hate crimes that involve not only race, but
religion, ethnic background, and sexual orientation.
I'm glad to hear of your interest in having the Department
of Justice be aggressive in that area. I hope that they will
be. We have a bill working its way through Congress to try to
strengthen that law and I would encourage you to take a look at
it, because it works in conjunction with State governments and
local governments, because I think Department of Justice can
assist in local prosecutions in regards to hate crimes.
And I would hope that you--I'm glad you mentioned and, I
can tell you, you'll have partners here in Congress encouraging
you to be as aggressive as possible. Of course, I think that's
one of the most important things we can state, as a nation, is
to not tolerate any forms of hate crimes.
Let me talk about election law for a moment, if I might.
This is, I guess, a typical example of my concern about the
Civil Rights Division. The Civil Rights Division traditionally
has worked to enfranchise, to provide more opportunities for
individuals to vote, to remove obstacles.
Yet, in 2002, there was a major shift, when it looks like
the Department of Justice Civil Rights Division was aimed at
more of trying to prevent fraud than it was to remove obstacles
to voter participation. And it reached, I think, the low point
with the sign-off on the Georgia Voter ID.
Even though the Secretary of State of Georgia could give us
no examples of people using false identification or false
persons to vote, Georgia moved forward with the voter
identification.
The Civil Rights Division signed off on it, against the
advice of the career attorneys, signed off on it. The courts
ultimately decided that it would not go forward, it violated
the law, and it would work to disenfranchise particularly
minority voters and those who are homeless, those who are of
lower income, from being able to participate and vote.
So I guess my question to you is, will your priority and
your instructions to the Civil Rights Division be the
traditional role of the Department of Justice in trying to
remove obstacles to particularly minorities being able to vote
or will it be more to try to do the Georgia type of voter ID
laws?
Judge Mukasey. Respectfully, I don't think it's an either/
or proposition. I think that voter enfranchisement, voter
empowerment, opening up the vote and opening up access to the
vote and preventing people who shouldn't vote from voting are
essentially two sides of the same coin.
That coin is a very valuable one. It's the value of the
vote. I guess one of the joyful duties I had as a judge was
swearing in new citizens and a big part of the talk that I
gave, the brief talk that I gave to them afterwards, always
involved their obligation to inform themselves and to vote.
Nobody who votes wants to see his or her vote diluted by
the vote of someone who is not entitled to vote. But people who
want to vote, who are authorized to vote and should vote, have
to be--have to have access to that and everything has to be
done to keep that open.
Senator Cardin. Do you agree with the court decision in
Georgia that said that the voter ID was the ``modern day poll
tax'' and that it would not be allowed to go forward with in
Georgia?
Judge Mukasey. I don't know whether that--
Senator Cardin. I think that's a direct quote from the
judge.
Judge Mukasey. I think if a means of identification is made
available and accessible and every step is taken that allows
people who have a right to vote to get access to that, to be
informed about its availability, then to say that it's the
modern day equivalent of the poll tax seems to be a little bit
over the top.
Senator Cardin. If you're a homeless person, if you're a
person with a disability, if you're in the immigrant community,
these ID cards are very difficult and sometimes offensive.
Judge Mukasey. If they're difficult, then that difficulty
has to be overcome and a way has to be found to get people with
disabilities--to make those cards available to the people with
disabilities. If they're homebound, have people go to their
homes, if necessary.
I'm not saying that those cards should be difficult to get
or have.
Senator Cardin. I guess my point would be that I would
certainly want the Civil Rights Division looking at the
balancing between making sure that only those who are qualified
to vote vote, but to try to get the largest possible
participation in our election process.
And if we put our energy into trying to weed out the few
that maybe are committing fraud and, as a result, we end up
with a huge number who are disenfranchised, that shouldn't be
what the Department of Justice is doing.
I hope you agree with that.
Judge Mukasey. I certainly do.
Senator Cardin. Thank you. Appreciate that.
Let me just mention, very quickly, we had some problems--
there's some new problems developing in the election
procedures, where candidates and parties are using an effort to
disenfranchise voters as a way to win elections.
We saw that with misinformation sent out in the most recent
elections concerning voting dates, giving the wrong dates to
voters, to tell minority community--targeted to minority
communities that if you have unpaid parking tickets, you'll be
arrested if you try to vote, if you haven't paid your taxes,
you'll be arrested, things like that that are aimed at minority
communities to suppress their votes.
I hope that you will show interest in trying to figure out
a strategy where we can combat those types of practices.
There's legislation moving through Congress that Senator Obama,
Senator Schumer and myself have cosponsored. I hope that you
would take a look at that.
Judge Mukasey. I certainly will. I certainly will. I mean,
that's flat-out fraud and that's pernicious fraud.
Senator Cardin. Thank you. Thank you, Mr. Chairman.
Chairman Leahy. Thank you. Thank you very much. And we
will--I think you're probably going to be getting a lot more
questions on these areas of voters and how that is set up,
especially as we go into next year.
I agree with what you said about telling people who are new
citizens, who have just been sworn in, the right to vote. I
found that--I've been privileged to be in many of those
ceremonies when Federal judges in my State have sworn people
in.
This is the most eager thing, they can vote. You hear that
from everybody. My grandparents, when they immigrated to this
country from Italy, they told me that one of the most exciting
things, they could go in and vote.
Senator Sessions? I'm sorry. That did not come out of your
time, I assure.
Senator Sessions. Thank you, Mr. Chairman. I think it's
been a very good day, indeed, Mr. Chairman, that you and
Senator Schumer and others feel confident in supporting this
nominee.
I think it is important, at this point in history, Judge,
that we have an Attorney General that people on both sides of
the aisle can support and have confidence in. You've earned
that, I think, over a lifetime.
You seem to have the gifts and graces, at this important
time, to do the job. I think, having been in the Department of
Justice for 15 years, and nothing I've done I've been more
proud of than working with that fine team of people I had the
honor to work with, I think it is time for a steady hand, a
professional.
I think it's critical and one of the things you're going to
have to do, and you've already felt, from the questions you've
received, is to bring some clarity out of the confusion of
national security issues.
I mean, we are quite confused about that. I think the
public is confused about it and I think we've got to get that
clarified. I hope that will be one of the legacies that your
tenure will allow you to accomplish.
I've said repeatedly that the Attorney General has got to
say no to the President if he wants to do something, just like
a good corporate lawyer has to tell the CEO sometimes, ``We
can't do it that way, Mr. CEO'' or ``Mr. President. You can do
it this way, but you can't do it that way.'' And then you've
got to be able to articulate and defend the legitimate actions
of your President, the head of the executive branch, and I'm
not sure we've done that very well. And so things have gotten
pretty confusing.
Do you feel that is a responsibility of yours and do you
feel that, at this present time, the President's popularity
numbers are not high, Congress has just changed hands, and
people are beating up the administration in every way, right
and left, do you feel an obligation and do you feel that you're
ready to give us honest, straight answers and to provide a good
defense for the legitimate prerogatives of the executive
branch?
Judge Mukasey. I do, and I particularly agree with your
statement that we need to clarify. We need to be clear about
what it is we're doing and why it is we're doing it. People
need to understand that and that case has to be made.
Senator Sessions. Well, you're a man of good judgment and
clear thinking, by all accounts. You have broad experience,
integrity.
I believe Senator Schumer said you were a man of the law. I
like that phrase. I think that's what you need to be. And
you've certainly had great experience.
So I think that you can make those--help those who are
placing their lives at risk for us this very day all over the
world in hostile lands in order to execute policies that we
sent them to execute, that they don't need to be denied
wrongfully the intelligence and support they need to be
successful, that the American people are entitled to a vigorous
and effective defense against terrorism and people who would
attack innocent men and women and children, and that requires
intelligence and hard work, and some of these issues are tough.
But we have a lot of legitimate powers and I hope that you
will be effective in helping us articulate that so that we can
be safer.
Judge Mukasey. If I'm confirmed, I'm going to do my best.
Senator Sessions. Thank you. I agree, I think, with Senator
Cardin that assembling a topflight staff is going to be a top
priority of yours. You're going to have to work hard at that.
I believe you can get those people. I think it'll be easier
for you than your predecessor to attract the topflight people
and, as someone who's been a part of the department, I know a
lot of those deputies and associates are critical to success,
and I hope that you will do that.
And don't hesitate to criticize or stand up to the Congress
and some of the legislation that gets passed or gets promoted.
I remember, after 9/11, we had the FISA Act and the PATRIOT
Act and there was no disagreement that it was a mistake to have
created a wall between the FBI and CIA. There was no
disagreement that the law that prohibited our intelligence
officials from negotiating and talking with or developing
relations with people who have had bad reputations and had done
bad things was a bad idea, and we changed that.
And I just say that to say they passed those bills in an
effort to improve civil liberties and it ended up to not be
necessary. It ended up to be a big mistake and may well have
contributed to 9/11.
So I'll ask you, will you be willing to tell us if we're
trying to push something through here that's in error?
Judge Mukasey. I am not a bashful person and I'm not going
to become a bashful person if I'm confirmed. I will speak up
when I think I have to.
Senator Sessions. Well, I was actively engaged in the
immigration debate this summer and last year. We had a
remarkable national debate.
The matter had been bubbling for about 2 years and I think
the American people spoke clearly. Their will is very clear.
They want a lawful system of immigration. They want to be
compassionate, they want to do a lot of things, and we have
different agreements about some things, but one of the things
that they're committed to is creating a lawful system of
immigration.
Would you agree that's a good goal for America?
Judge Mukasey. I do.
Senator Sessions. I believe the American people would like
to maybe hear you say something about your commitment to that.
I say that because there's a great deal of cynicism.
For 40 years, no President and no Attorney General has
given a high priority to enforcing our immigration laws. We
arrested, last year, a million people attempting to enter the
country illegally.
Can you share with us and place at ease those who feel
strongly about this, as a chief law enforcement officer, your
willingness to take the steps necessary to be effective?
Judge Mukasey. I hope I can. This is, as has been said many
times, a nation of immigrants. Franklin Roosevelt once sent a
letter to the DAR, began with the salutation, ``My Fellow
Immigrants,'' and my father was an immigrant to this country.
This country has been made great through the contribution
of immigrants. In fact, the immigration problem that we have,
our border problem, is an aspect of how successful we've been.
Other countries have border problems, we have border problems.
Generally, theirs involve people trying to get out. Ours
involve people trying to get in. We need to control that. We
need to control it for a wide variety of reasons, including
maintaining our national security, and we can't have a system
in which the only sanction that results from an attempt to come
into this country illegally is that you get to try it again.
That's the kind of catch-and-release program that we've had an
it's brought us trouble.
When we met, you described to me a program or an initiative
that was being carried out, I think, in Del Rio, is it, that
had been successful in the bringing of some misdemeanor
prosecutions against people who are unlawful entrants. I think
that's something we need to try to look at and followup if we
have the resources.
I recognize this is a question of allocation of resources
and I'm not talking about filling up the jails with people who
are crossing the border, if we can't do that, but I think we
need to try to investigate the possibility of bringing to bear
some sanctions so that the only result of coming in illegally
is not that you get to try it again, because, otherwise, we're
just going to buy ourselves more and more of what we've had,
which is not satisfactory.
Senator Sessions. I think you said that truly. We have
seen, in two areas of the border, where misdemeanor
prosecutions have been brought for illegal entry and they are
those offenses, that, in one area, a 50 percent decline in
entry and, another area, 70 percent decline.
We've passed an amendment that I offered yesterday or the
day before that was accepted that would allow us to expand that
program.
Would you commit to examining that program and, if it
works, like perhaps the Broken Windows program that worked so
well in New York, start with those little things and maybe the
whole system can be turned around in ways we can't anticipate
today, would you look at that had?
Judge Mukasey. I will commit to looking at it hard. I
should recognize that this is not exclusively a matter within
the control of the Justice Department. The Department of
Homeland Security has an important voice.
Luckily, I know Secretary Chertoff from another movie, as
they say, go back a ways, so I can talk to him comfortably
about that.
Senator Sessions. Well, I do feel like there are a lot of
things that can be done and one of them is to create an
impression, a correct impression that our borders are no longer
open, and that we are serious about it and even misdemeanor
prosecutions can be effective. And I think the squeegee guys in
the Broken Windows are sort of a comparative example there of
how to restore law and it starts oftentimes with not just the
biggest cases, but with smaller cases.
You're probably aware that Federal law requires the
deportation of convicted criminal aliens, those who are here
legally or illegally, but are convicted of serious crimes.
Do you support the enforcement of that law?
Judge Mukasey. Yes, I do.
Senator Sessions. It's not being effectively enforced now.
Department of Homeland Security Inspector General says that at
least half of those that are serving time in prisons today will
not be removed according to the law.
Attorney General Gonzales admitted there was a problem in
July in this committee. He said, ``The level of cooperation
between DHS and DOJ is not what it should be.''
So will you take a leadership role to see if you can
confront this issue and make sure that we are effectively
identifying those who either committed--I'm not talking about
entry crimes. I'm talking about violent crimes, drug dealing
and the like once they've been in the country.
Judge Mukasey. I will certainly take an active role in it.
I think there's a third party to that conversation and that's
the country to which they have to be deported, and I can
understand that some of those countries may not be eager to
receive alumni of our prison system. But that's something we're
going to have to overcome.
Senator Sessions. Well, you know, that is true, but that is
a matter that can be overcome if we have the will to overcome
it, I believe.
I know Senator Specter raised a question one time of, well,
maybe we should stop entries from those countries if they don't
agree to take them back. You have to send the clear message
that we're serious about it.
On the question of voting rights--my time is up, Mr.
Chairman--I do think that--I hope that you will not ignore the
requirements of the Voting Rights section that fraud be
prosecuted, also. I trust you will not ignore that
responsibility.
Judge Mukasey. I will not ignore it.
Senator Sessions. Thank you, sir. Thank you, Mr. Chairman.
Chairman Leahy. Thank you. Well, I think, one, I will say,
Judge, I've been pleased to see you engage with Senators from
both sides of the aisle. I appreciate the succinctness of your
answers, with the clarity of them.
I think that we have a--as I told you before, we have a
Department of Justice which has been badly shaken by a
prolonged crisis of leadership and I think these hearings can
begin to repair that.
A number of your answers have indicated your independence,
your agreement that political influence has no place in law
enforcement. Any of us who have had the privilege of serving in
law enforcement know that that has to be the case.
And I think we agree the Department of Justice is far too
important an institution to remain dysfunctional and want to
get it back to its law enforcement mission.
Tomorrow we will start and Senator Specter and I will have
questions. There will be no opening statements from anybody. I
want to go back to the price of executive privilege, how you're
going to test such claims, how you resolve them.
I've got a couple other matters that I want to followup
that I did not have time to this morning, and I would urge
Senators who wish to ask questions to be here. I thank all the
Senators who have been here today.
After we finish that, we'll then have a panel of experts
who are going to testify on some of the issues we've had here.
But you've had a long day, Judge. Your family has had a
long day. At least you had the adrenaline and the ability of
being there answering the questions. They have to sit there and
think, ``Is he really going to say that?'' No. So I appreciate
you being here.
We'll stand in recess until tomorrow.
[Whereupon, at 4:50 p.m., the hearing was adjourned.]
NOMINATION OF MICHAEL B. MUKASEY, OF NEW YORK, TO BE ATTORNEY GENERAL
OF THE UNITED STATES
----------
THURSDAY, OCTOBER 18, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 10:07 a.m., in
room SH-216, Hart Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Kohl, Feinstein, Feingold,
Schumer, Durbin, Cardin, Whitehouse, Specter, Hatch, Grassley,
Kyl, Sessions, Graham, Cornyn, Brownback, and Coburn.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning. ``Good morning,'' he said
subtly, for the sake of the photographers.
Judge, at one of these hearings, before we start, I should
mention that there was a screen on the front here. Without
thinking one time at one of these hearings, I started kicking
on the screen. I thought it was solid. I realized, to my
embarrassment, I was kicking the back of one of the
photographers. Within 15 minutes, the word had gotten around,
and my son-in-law, Lawrence Jackson, who is an AP
photojournalist, sends me an e-mail saying, ``You really
shouldn't be that rough with them. They are very nice people.''
And so I am being careful not to do that today.
I would repeat what I said yesterday. I do not think it
would be necessary, but obviously, if there are any
demonstrations either for or against any position of Judge
Mukasey, Senator Specter, myself, or anybody else in here, the
demonstrators will be removed. We want everybody to have a
chance to have these hearings.
So if I might start, what we will do today, I will ask a
series of questions, Senator Specter will, and then we will go
back and forth in the usual order.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Judge, I want to go back to your last answer to me
yesterday, and you and I discussed this a little bit outside.
You said a U.S. Attorney could only refer a contempt citation
of Congress to a grand jury as required by law if he or she
believed reliance on the President's executive privilege claim
was unreasonable.
I have some trouble with that. I do not think you rule on
claims of privilege when they are raised by seeing whether they
are reasonable but whether they are valid, so let us talk a
little bit about this.
If Congress were to refer a contempt citation--and there is
a real probability there will be some as a result of the U.S.
Attorney scandal--you are indicating that the U.S. Attorney
would undertake an independent analysis and assess the claim of
privilege in determining whether to bring the matter before a
grand jury. Is that right?
Judge Mukasey. Well, let me flesh out a little bit what I
understand the process to be and to have been and maybe put a
little bit of flesh on the bones of my answer.
As I understand it, when the White House get a subpoena,
they refer it to the Department of Justice, as, in fact,
happened here because I was shown the letter from Paul Clement
relating to the assertion of the privilege. If the White House
then, relying on that letter--the President, since he is the
only person who owns the privilege, if he relying on the
Justice Department asserts the privilege and there is
nonetheless a contempt citation, we are in the position where
the Department of Justice would have to prosecute someone who
followed the advice that originated with the Department of
Justice.
I am told that there are not one but two opinions of the
Office of Legal Counsel, one of them from Ted Olson and the
other from a man I know and whose name I can picture--and I
cannot come up with it now--who served in the Clinton
administration, who I referred to yesterday. I am sure I will
think of it after I leave here.
But, in any event, there are two OLC opinions saying that
that would not be appropriate, and--
Chairman Leahy. What would not be appropriate?
Judge Mukasey. That for the U.S. Attorney to prosecute
someone for a contempt based on reliance on an opinion letter
that originated in the Department of Justice would not be
appropriate. It would be different if a letter from the Justice
Department said, ``You can assert the privilege as to A, B, and
C, you cannot as to D, E, and F,'' and the President were to
say, ``I do not care. I am going to assert it as to all of
them.'' That would be a different story.
Chairman Leahy. But in some instances, I think we are
talking about some things that are somewhat ex post facto. If
you have--after the people are called, there had been no
assertion of executive privilege before. Now they get called
about their actions. They were involved in actions in which
nobody had raised any question of executive privilege, but all
of a sudden when they are called before Congress under
subpoena, now somebody starts claiming executive privilege,
don't you have something a little bit different? Isn't it
somewhat difficult to claim you are acting under an assertion
of executive privilege when that issue comes up after the fact?
Judge Mukasey. I think the basis for the assertion has to
be evaluated, and that basis often includes reliance on
opinions of the Justice Department because it is hard to
envision that the White House--although it is not impossible to
envision, I would think that the White House would seek the
view of the Justice Department before it took any position on
executive privilege. If somebody went off on a tear without
consulting the Department of Justice, I agree that would
present a different set of facts.
Chairman Leahy. Well, you have a bit of a problem here
because some of these claims were extremely broad. You had
people cannot testify, saying, ``I never talked to the
President. I never sent stuff to the President. The President
never asked me any questions, never interacted with me. But I
am claiming executive privilege.'' Now, that seems kind of a
broad claim.
Judge Mukasey. As you describe it, it sounds broad. But I
think the executive privilege covers communications other than
those directly to and from the President. There is a whole
range of interests that have to be protected by executive
privilege that include setting aside matters of national
security, setting aside matters of current litigation. There
are--
Chairman Leahy. Well, what--
Judge Mukasey. I am sorry.
Chairman Leahy. Well, what if the President broke the law
and somebody wanted to look into it, and he said, ``Wait a
minute, executive privilege. We can't have anybody talk about
what I did breaking the law because I claim executive
privilege'' ?
Judge Mukasey. I think part of the content of what it is in
a communication has to be considered. There is a weighing
process that goes on.
Chairman Leahy. Well, last July, when the House Judiciary
Committee was considering a contempt citation for a former
White House official, somebody in the administration said a
U.S. Attorney would not be permitted to bring contempt charges
or convene a grand jury in an executive privilege case, and the
U.S. Attorney would not be permitted to argue against the legal
opinion the Justice Department provided.
Now, the law requires them to bring contempt charges to a
grand jury. The White House says you cannot bring it. What do
you do in a case like that?
Judge Mukasey. I fall back on two things. First of all,
there are two OLC opinions--and the name of that other person I
could not think of before is Walter Dellinger--that say that
when the person asserting the privilege--when the President in
the assertion of the privilege is relying on a Justice
Department opinion, that it simply cannot be appropriate for
the same Department that offered the opinion then to turn
around and prosecute somebody who followed it.
Chairman Leahy. But if the U.S. Attorney does not follow
the statute, which is very clear, how does the claim of
executive privilege get evaluated? How does the conflict with
the Congress get resolved?
Judge Mukasey. I think--I have not read the text of the
statute recently. I think it requires the convening of a grand
jury. I do not know whether it goes so far as to say--I do not
think it goes so far as to say that a charge shall be a filed
or that an indictment shall be requested. But I do not want to
start parsing words delicately--
Chairman Leahy. Well, Judge, I will spell this out a little
bit more clearly with you, but I would like your answer back in
writing before this matter is brought up before the--before the
nomination is brought up before the Committee.
And, last, Congress has clearly legislated in areas--we
have done it in the area of surveillance with the FISA law,
something we have amended repeatedly at the request of various
administrations. If it has been legislated and stated very
clearly what must be done, if you operate outside of that,
whether it is with a Presidential authorization or anything
else, wouldn't that be illegal?
Judge Mukasey. That would have to depend on whether what
goes outside the statute nonetheless lies within the authority
of the President to defend the country.
Chairman Leahy. Where does the President get that
authority? I am thinking of the Jackson opinion and others.
Where does he get the authority if it is very clearly
enunciated what he can do, a law that he has signed, very
clearly enunciated? I mean, the President can say, ``Well, this
authority, I am going to order the FBI to go in and raid 25
houses because somebody told me they think someone is there. We
are not going to wait for courts. We are not going to do
anything else. There is no urgency. But we just kind of like to
do that.''
Judge Mukasey. ``We kind of like to do that'' is not any
kind of legitimate assertion of authority. And I recognize that
you have posited the case that way for a reason. But the
statute, regardless of its clarity, cannot change the
Constitution. That has been true since the prize cases, and it
was true before that.
Chairman Leahy. Can a President authorize illegal conduct?
Can a President put somebody above the law by authorizing
illegal conduct?
Judge Mukasey. The only way for me to respond to that in
the abstract is to say that if by illegal you mean contrary to
a statute, but within the authority of the President to defend
the country, the President is not putting somebody above the
law; the President is putting somebody within the law. Can the
President put somebody above the law? No. The President does
not stand above the law. But the law emphatically includes the
Constitution. It starts with the Constitution.
Chairman Leahy. We will go back to this. I am troubled by
your answer. I see a loophole big enough to drive a truck
through, and so we will go back to it. I do not think--well, we
will go back to it.
Senator Specter, I am sorry. I have gone over.
Senator Specter. Thank you, Mr. Chairman.
Picking up on this issue, you testified yesterday that the
President could not order torture because it would violate a
statute. In light of your answer a moment ago, would you say
that is because the President does not have Article II power to
protect the country to authorize torture?
Judge Mukasey. The President cannot authorize torture
because torture is barred both by statute and by the
Constitution. And I would be happy to walk back through that if
you wish.
Senator Specter. Well, where in the Constitution is torture
barred?
Judge Mukasey. It is barred by the Fifth, the 14th, and the
Eighth Amendments. The Fifth and the 14th Amendments bar
conduct that shocks the conscience. They have been so
interpreted.
Senator Specter. Fine. I see your rationale. Let me move on
the same issue to the Foreign Intelligence Surveillance Act,
FISA. That provides that the exclusive procedure for obtaining
a wiretap is to go and get a warrant on probable cause. Was the
President permitted to violate FISA because of his Article II
powers? Or was his violation of FISA a violation of law?
Judge Mukasey. I am not sure what violation it is we are
talking about. If we are talking about the Terrorist
Surveillance Program, I think I said yesterday--
Senator Specter. We are talking about the Terrorist
Surveillance Program, which has warrantless wiretaps,
contrasted with FISA, which says the exclusive procedure to
have a wiretap is to get a warrant, and what the President did
violates FISA. Is it justifiable on his Article II powers
because--well, that is the question.
Judge Mukasey. As I understand it, the President believed
at the time and still believes that FISA was not the only
applicable statute, that he was acting with authorization under
the Authorization for the Use of Military Force.
I understand that there is more than one view on that. He
gave a long--
Senator Specter. Judge Mukasey, I do not think anybody--
Judge Mukasey. I am sorry?
Senator Specter.--ever really seriously contended that our
resolution of September 14th authorizing the use of force
encompassed a violation of FISA. But let me move on. There are
so many issues to cover that I want to move into another area.
I think the record is fairly clear as to your views on Article
II power and the statute and what you said on torture.
Before proceeding to some other issues, I want to make a
comment about Steve Bradbury, who is the Acting Assistant
Attorney General, Office of Legal Counsel. There has been a
request--some members of the Committee, some Senators have
asked that he be withdrawn from that position. I believe he is
very competent, and I believe he ought to be confirmed. And
people disagree with things he has done, but those acts on Mr.
Bradbury's part have been carrying out the President's orders.
And I think he has no choice on that, and we have been into
that in some detail with Attorney General Gonzales when we had
an issue about having the Office of Professional Responsibility
see if the Terrorist Surveillance Program was properly
authorized under the law. And Attorney General Gonzales said
that was the President's decision, put it squarely on the
President, and I think that is what has happened with Steve
Bradbury.
In June and July, there was considerable discussion about
the telephone companies' responsibilities, and the Committee,
when I chaired it, was moving for subpoenas, and Vice President
Cheney intervened and talked to members of the Committee on the
Republican side without talking to me, and I want to put in the
record a letter I sent to the Vice President on June 7, 2006,
and his reply to me on June 8, 2006.
Chairman Leahy. Without objection, that will be part of the
record.
Senator Specter. Because they are relevant to my comments
about Steve Bradbury.
Following those letters, Mr. Bradbury and my staff and I
had very extensive conversations about legislation which I had
introduced to put the Terrorist Surveillance Program under the
Foreign Intelligence Surveillance Court, and I found him to be
very competent and very professional and very direct and very
able--candidly, unusually so for someone in the Department of
Justice. And that led to a direct meeting I had with President
Bush, who agreed to support the legislation, which Mr. Bradbury
and my staff and--Mr. Bradbury, others in the administration,
and my staff and I had worked out. And I thought Steve Bradbury
was A-plus, and I have had dealings with him since on a lot of
very complex legal issues, and I think he ought to be
confirmed. He certainly ought not to be ousted.
Now on to the issue of reporter's privilege. There is
legislation pending which would give the reporters a qualified
privilege. You and I discussed this informally. There have been
many subpoenas issued in both State and Federal courts, and the
Hearst Corporation summarized them as 97, the majority--since
1991, the majority of those since the year 2000, many
celebrated cases where people went to jail. The Barry Bonds
case was celebrated as to a contempt citation against
reporters.
The No. 1 case was the case of Judith Miller, who was kept
in jail for 85 days for reasons still inexplicable to me. She
was asked about the source of a leak on the outing of Valerie
Plame. At the time there was no national security issue because
Ms. Plame did not qualify to make it a national security issue,
and it was known who the source was: Rich Armitage, the Deputy
Secretary of State. And yet she was kept in jail for 85 days,
which led me to push the legislation, and we are pushing it
still.
The question I want to ask you--and I understand that you
are not in a position to make a final judgment as you would if
you were Attorney General. But this matter will be coming up.
We are pushing it for floor action. And the question is: There
is an exception for national security, and it is a matter of a
judge to weigh whether the public interest in disclosure
outweighs or does not outweigh the national security interest.
And obviously there are issues on national security that are
very complex, but in our system it is up to judges, Federal
judges, to make decisions. They deal with a lot of very complex
issues in many, many contexts, high technical matters. And I
would like to hear your views on the subject and beyond that to
ask you to study in detail as to whether that is a sensible
accommodation because of the importance of news gathering,
which has in the history of our country exposed corruption,
misfeasance, malfeasance, waste, fraud, and abuse. In the line
of the famous Jefferson statement, if I had to choose
Government without newspapers or newspapers without Government,
he would take newspapers without Government.
But we intend to push this, and we would like to reach an
accommodation that satisfies the administration on the national
security issue. What do you think?
Judge Mukasey. First of all, I have my own history of
having represented reporters, of having asserted the New York
shield law successfully, and as you put it, it sounds almost
innocuous. But I have some anxiety when it comes to national
security cases because although Federal judges--and I used to
be one of those, too, and, therefore, I have high regard for
them.
First of all, it is not always possible to show precisely
what the outcome is going to be from disclosure of confidential
information. The instance I mentioned yesterday involving
serving a list of unindicted co-conspirators was one example.
Another example is a piece of testimony that was given in the
Ramzi Yousef case that was tried before my colleague, Judge
Duffy, where somebody testified to somebody having delivered a
cell phone battery to someone else.
That piece of testimony disclosed to al Qaeda that a line
of communication of theirs had been compromised, and, in fact,
it was a line of communication that our Government was
monitoring and from which it had gotten enormously valuable
intelligence. That line of communication shut down within days
of that testimony. And I do not know what we lost. Nobody knows
what we lost. But we probably lost something enormously
valuable. What I am saying is that it is an imponderable.
Second, although Federal judges decide complex and
technical issues, when it comes to weighing intelligence, that
is beyond simply complexity. They do not have available to them
not only the training but the resources that people involved
in, for example, the Department of National Intelligence--the
Director of National Intelligence has available to him to weigh
issues like that. They rely on their experience, their law
clerks, and what is submitted to them, and their own common
sense.
That is enough in the mine run of cases because the worst
thing that could happen is they will make a mistake, it will go
up on appeal, and as often happened to me, they will get
reversed. The stakes are much higher when it comes to national
security. And, often, even a showing of what the danger would
be from the disclosure is itself as bad as the disclosure or
worse. Then you get to the entirely separate question of who is
a journalist and who is not. We talked about that a little bit
yesterday.
So for those reasons, I have got misgivings about it. I do
not--the case that you described--there is an old saying that
hard cases make bad law. The reverse may very well be true,
also. Bad cases can make hard law. And I do not want this to be
a situation where a bad case makes a hard law.
Senator Specter. Mr. Chairman, just one final comment. I
understand the problem you articulate, but I do not think that
we can stop short and say that just an assertion by the Federal
Government of national security ends the matter. That is just
too much authority in too blanket a way. So I would ask that
you help us search for a way to accommodate the concerns you
express, but at the same time give a shield to a reporter
unless there is some very good reason not to.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Before I go to Senator Feinstein, if I might, there is one
thing that bothered me in your answer--well, a number of things
that bothered me, but basically when I was asking about FISA
and you were saying, well, the President to protect the country
can--it sounded almost like you were saying he could ignore the
law or could authorize others to, but yet you said in answer to
Senator Specter, well, of course, the President would not be
allowed to authorize torture because that is against the law.
If you use the same reasoning, why couldn't he say, ``I am
doing this, as a national security matter, to protect the
country, so I am going to authorize torture'' ? Why couldn't he
do that?
Judge Mukasey. Torture violates not only the law; it
violates the Constitution.
Chairman Leahy. Well, so does a search and seizure without
a warrant. I mean, the Constitution has pretty clear
constitutional provisions on search and seizure.
Judge Mukasey. The Fourth Amendment says that we are all
protected against unreasonable searches. It then goes on to
speak about what would authorize the issuance of a warrant and
what would not. They are--
Chairman Leahy. Probable cause supported by oath or
affirmation, particularly describing--and so on.
Judge Mukasey. Right. Those are two separate clauses, and
there is--we all, for example, go to the airport, and we are
all searched without a warrant before we get on an airplane.
Chairman Leahy. We also consent to it. We have a choice of
doing that or not getting on the plane. I am talking about when
somebody goes into my e-mails, goes into my telephone, and it
turns out thousands of times it was done for a period of
several years until the press reported it. Then they came back
and said, ``Gosh, I guess we ought to amend the law to allow
this,'' but they ignored a very specific law which said how you
go about doing that. I mean, how can the President say, ``Well,
that is national security so I will authorize you to clearly
violate a statute and authorize everybody from telephone
companies on through, I will authorize you to clearly violate a
statute--why couldn't he do the same thing on torture?
Judge Mukasey. I think we have to distinguish very
carefully between--I try to distinguish very carefully between
monitoring a conversation, telephone content, and telephone
records. Telephone records have never been protected by the
Fourth Amendment because they are in the hands of a third
party. If they weren't, you couldn't--
Chairman Leahy. Conversations are--
Judge Mukasey. Of course they are. You couldn't argue with
your telephone company over the bill.
Chairman Leahy. No, but the conversations are, and the
conversations, people's lives could be--if they are taken
improperly, used improperly, their lives could be ruined. Their
jobs could be lost and so on. I think we will come back to
this, Judge, and we should think about this a little bit,
because I do not think you can say when you have a very clear
statute that the President can suddenly step above the law or
authorize others to break the law, which is what it appears you
are saying, and in other cases like torture you cannot do it
even though we find out now that they have broken the law, the
torture law, supposedly having been told they could do it by
the White House.
Senator Feinstein?
Senator Feinstein. Thank you very much, Mr. Chairman. My
discussion, I hope you will take in its full form as a
discussion on an important issue.
This afternoon, Judge, the Intelligence Committee will be
marking up a FISA bill. I can tell you it is a very big bill.
At this stage it is a bipartisan bill. Yesterday the House bill
fell apart on the floor of the House. I am absolutely convinced
the only way we can legislate in this area is on a bipartisan
basis, and much to the commendation of the Chairman and the
Vice Chairman of the Intelligence Committee in the Senate, this
bill so far is bipartisan. That is good news.
My second point is the so-called Terrorist Surveillance
Program could have been within the law from the very beginning.
I have never understood why it was not within the law. The
formulation of an 11-judge Foreign Intelligence Surveillance
Court prepared to sit 24/7 is a very important thing in our
Nation, and I think the big guarantee that we give our people
is the guarantee of law to the greatest extent we possibly can,
and that law is there.
I took some time when I went on the Intelligence Committee
some years back to read the Church Report that was put out
after 1978 and the passage of the FISA bill. And the Church
Report outlines a major historic trend by this Nation in our
200-year history to essentially take foreign intelligence,
exploit the loopholes, and use it for political intelligence
gathering domestically. And there is example after example
after examples, through a whole host of Democratic and
Republican administrations, which points out, to me at least,
the real need for a Foreign Intelligence Surveillance Act that
we can say to the American people is the exclusive authority.
Now, yesterday we began this discussion. Unfortunately, I
did not have the time. Senator Feingold followed up, and let me
quote you on these points: ``...in the area between where that
statutory authority left off and where his authority left off
under the Constitution in Judge Bell's view--and it is one I
share--I think he would have''--meaning the President--``the
authority to act. I think it is important''--and you went into
the Fourth Amendment then. ``But there is very scant, if any,
case law on the question of whether intelligence gathering, as
distinct from gathering of evidence for criminal cases, is
something that may very well be much more flexible than matters
relating to the gathering of intelligence.''
In terms of evidence that is legislative intent, there is
not scant evidence. There is very fulsome evidence, I believe,
that every effort was made in 1978, and even since then, to
provide that electronic surveillance be under law--the setting
up of the court, the report language.
You mentioned the AUMF today. I do not believe in terms of
the legislative history of the AUMF--and I was part of or sat
through some of these discussions--there was any intent to
allow the President to wiretap outside of the law. It was never
discussed. It never came up. The full focus was whether to
confine this to Iraq or more broadly. And I think I sent last
night part--page 101 of the report on the FISA bill, and I want
to read a couple of sections to you and then ask you to comment
in view of what I have just said.
``When a President takes measures incompatible with the
express or implied will of the Congress, his power''--and we
know this--``is at the lowest ebb, for then he can rely only on
his own constitutional power minus any constitutional power of
Congress. Courts can sustain exclusive Presidential control in
such cases only by disabling the Congress for acting upon the
subject.''
It then goes on that, ``Despite any inherent power of the
President to authorize warrantless electronic surveillances, in
the absence of legislation, by this bill and Chapter 119 of
Title 18, Congress will have legislated with regard to
electronic surveillance in the United States. That legislation
with its procedures and safeguards''--FISA Court, 11 judges,
24/7--``prohibit the President, notwithstanding any inherent
powers, from violating the terms of that legislation.''
Then the report language goes on to describe how the bill
essentially repealed those provisions which state that nothing
in those relevant chapters shall limit the constitutional power
of the President. They repealed that section, expressly
repealed it.
And then they go on to say, ``In short, Congress simply
left Presidential powers where it found them. The Foreign
Intelligence Surveillance Act, however, does not simply leave
Presidential powers where it finds them. To the contrary, this
bill would substitute a clear legislative authorization
pursuant to statutory not constitutional standards. Thus, it is
appropriate to repeal this section which otherwise would
suggest that perhaps the statutory standard was not the
exclusive authorization for the surveillance included
therein.''
See, I do not think the President, based on the legislative
history, has--unless there is something that expressly grants
it to him. The AUMF did not expressly grant nor was it
discussed, nor, I believe, was it contemplated that he would
use that as authority to go outside of FISA. And, again, I
conclude with this: He did not have to go outside of FISA.
Subsequently, that became clear and the program is within FISA
now.
So what bothers me is that you yesterday sustained that gap
where I believe that gap has been closed, and hopefully will be
further closed by what we do in an intelligence bill, which
will then, after Intelligence, come to this Committee. Could
you respond?
Judge Mukasey. All I can say is I share your hope, and I
share the view that if the President can act within FISA, then
that is where he has to act. I think based on the history that
you read, the only--and I do not want to look for areas of
disagreement. I was told not to look for areas of disagreement.
Senator Feinstein. Well, I think this is a conversation
worthwhile having, so you go ahead.
Judge Mukasey. OK. The only place where we might
conceivably have a disagreement--and I am not certain we do
there either--is in the view that, notwithstanding the Congress
saying specifically we are restricting the President's--what
might otherwise be the President's authority under the
Constitution, that that can actually restrict the President's
authority under the Constitution. Whether a past Congress said
we acknowledge the President's--that the President might have
authority that lies beyond the statute, to repeal that cannot
change the constitutional reality. If, however, it was always
possible for the President to act within FISA, then there is no
need for that authority.
And, for example, under FISA as it stands now, as I
understand it, there are procedures that are approved by the
Foreign Intelligence Surveillance Court that the President is
then free to use without each time having to go for a separate
warrant because that is simply unfeasible, regardless of how
many judges we have got. And that is obviously the way to go.
That is the way I want to go.
Senator Feinstein. Exactly. My point is this: the
administration did not try to do that, before the heat got very
hot and then they went and did it. And that is the reason why
FISA really should be the exclusive authority for this kind of
public action, because it is all hidden action. And, therefore,
the Fourth Amendment does come into play, I think, too. So
perhaps, you know, the best I can say for your argument--and it
is wonderful for me because I am not a lawyer so I can say
that--is that you have two budding amendments, perhaps. But
when you listed the AUMF, I think the history counters the
AUMF. That is all I wanted to make. Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. The AUMF is the weakest reed this White
House could ever hold onto, and it does not stand up. I think
the fact that they are bringing so much pressure on the
Intelligence Committee--and if the press is to be believed, the
Intelligence Committee is about to cave on this--and bringing
pressure on this Committee to immunize past illegal conduct, it
is because they know that it was illegal conduct, and that
there is no saving grace for the President to say, well, I was
acting with authority. Otherwise, there would not be so much
pressure on us to immunize illegal conduct by either people
acting within our Government or within the private industry.
Senator Kyl was here yesterday, and as it grew late in the
day, he was willing to wait until today, and I appreciate that
very much, Senator, because we were then able to wrap up, and I
yield to you.
Senator Kyl. Thank you very much, Mr. Chairman. With all
due respect, let me suggest there is another way to read the
President's strong interest in trying to get a good FISA
reauthorization, a much more benign reason, that he believes
that it is important to our national security that we be able
to secure this intelligence information against terrorists, and
with regard to the retroactive liability, that there could be a
very chilling effect on the ability of telephone companies or
others to cooperate with the Government if we do not protect
them from potential suit. It does not have to be that the
administration knew that its activities were illegal and,
therefore, it has been working with us hard to get this
legislation passed. In fact, I think that is a most
uncharitable and incorrect assessment of the situation.
I would like to agree with Senator Specter just a moment
with regard to his comments about Steve Bradbury. I think
Senator Specter said it well, and I just note those to you,
Judge Mukasey.
Also, with regard to the question of the reporter's shield
law, you took a question on this yesterday and commented on
what Senator Specter said. I would like to correct the record
just with respect to one thing Senator Specter said, but agree
with him that it will be important for us to be able to work
with you, and I will ask you that question in just a moment.
But from the Department of Justice's own report, the
numbers demonstrate a decrease in the number of cases in which
the Department has approved the issuance of subpoenas seeking
confidential source information in recent years. Of the 19
source-related matters since 1991, only four have been approved
since 2001. So this is hardly a situation in which, as was
said, there are many cases where reporters have gone to jail.
There are almost none. Very, very few. And the Department of
Justice has clearly been very discreet in the kind of source-
related matters that it has been seeking in recent years.
We have all been seeking to reach that point that Senator
Specter alluded to, the accommodation of national security
interests, prosecution of criminal matters, as well as the free
flow of information. And my question to you is: Since the
legislation has come under the Judiciary Committee but with an
agreement among us that we will continue to work on it, it
would be very important to have your insights as well, and
obviously the question is--you have already answered it to
Senator Specter, but to reiterate your willingness to work with
us as that legislation proceeds so that we can try to
accommodate all of these interests in the most efficacious way.
Judge Mukasey. I agree, and I think it bears some mention
in connection with this subject that there are within the
Department very elaborate procedures before anyone is permitted
to subpoena a reporter. Some AUSA with a subpoena and a
typewriter does not decide whether to subpoena a reporter.
There are many levels of approval that have to be gotten--in
Main Justice, not just in the Assistant's own office--before a
subpoena can issue to a reporter. And it was my own view--and I
do not know, obviously, all of the cases--that the system
worked passably well up until now.
But one thing about internal procedures is that if you need
to change them, they are relatively easy to change. You can
adjust the regulation. You can adjust the procedure. You can
put more levels in. You can change standards. It is relatively
easy to do.
It becomes much harder when it is etched in stone in the
form of legislation, and that is part of the reason for my
uneasiness.
Senator Kyl. I appreciate that. You know, Mr. Chairman,
yesterday when Senator Lieberman introduced Judge Mukasey, he
talked about a Contracts professor that loved to grill them on
the law. I suspect that Judge Mukasey might have viewed the
questioning by our colleagues as somewhat akin to that, and I
think you have come through it with flying colors.
I thought it would be interesting to just get back to the
Department of Justice mission statement. We have been fairly
far afield with a lot of different things here, and I found it
interesting to review it, that your job, if you are Attorney
General, is to enforce the law and defend the interests of the
United States according to the law; ensure the public safety
against threats, foreign and domestic; provide Federal
leadership in preventing and controlling crime; to seek just
punishment for those guilty of unlawful behavior; and to ensure
fair and impartial administration of justice for all Americans.
And that is a mission statement I think we can all agree with.
And in thinking about that mission statement--in other
words, exactly what your job is and what you would be doing
during the next year that we would be interested in with
respect to our oversight--I found it interesting that the
people who have worked with you in those various areas--
enforcing the law, providing leadership and preventing and
controlling crime, seeking just punishment and so on--have been
impressed with the way that you have executed your
responsibilities, suggesting that in your position as Attorney
General of the United States you would carry that same
experience to the fulfillment of your responsibilities.
Perhaps it has been read into the record already, but it
bears repeating perhaps. Mary Jo White, the U.S. Attorney for
the Southern District of New York from 1993 to 2002, commented
that during the Sheik Rahman trial, you had 10 defendants on
trial, controlled the courtroom very tightly. She said, ``He
has dealt with some of the most complicated, novel issues that
any judge will ever see. That is who he is--tough-minded,
clear-eyed person. DOJ is very lucky to get him.'' And, of
course, there have been so many other comments from others that
have worked with you.
I just thought it important to note that with respect to
your actual responsibilities as opposed to some of the things
that have been discussed in this hearing, your reputation fits
in very tightly, it seems to me, with your responsibilities as
Attorney General. And I am pleased that you have had that kind
of support from the people with whom you have worked.
I have discussed these things with you personally. I have
listened to your testimony here, and it seems to me that you
are extraordinarily well suited for this position, pretty much
as well as anybody who has not served in the position before
could be.
And I just wanted to close by asking if you have any
insights for us with respect to how you view your job. You have
got roughly a year left, and the last year of an
administration. There has been some tumult in the Department.
There have been huge challenges coming from this threat of
terrorism, in addition to all of the usual things the
Department of Justice has to deal with, but to bring your
experience to bear on it and basically speak directly to the
American people about how you can take that experience and
represent them in the Department of Justice as the chief law
enforcement official of the country.
Judge Mukasey. What you have described is a job that would
humble somebody with twice my ability. The one great
consolation that I have is, to go back to my opening statement,
the people in the Department are the people who carry that
responsibility. My job is to make sure that they have as few
problems as possible and let them do their jobs. And they are
enormously talented, dedicated people. I mentioned running into
people on the coffee line. Two of those people were 30-year
veterans of the Department. Thirty years. And there are
thousands of them. That is what allows me to sleep at night
when I say yes to wanting to do this job, because I am going to
have available to me the kinds of people who are there.
Yes, it is an awesome responsibility, but look at the
people I have helping me or will have helping me if I am
confirmed.
Senator Kyl. I appreciate that. Thank you.
Mr. Chairman, by the way, both relative to Senator
Specter's comments and mine, I would like unanimous consent to
insert in the record at this point a Washingtonpost.com piece
dated Friday, October 12th, titled ``In Defense of the Office
of Legal Counsel.''
Chairman Leahy. Without objection, it is so ordered.
Senator Feingold?
Senator Feingold. Thank you, Mr. Chairman. Judge, good
morning.
Judge Mukasey. Good morning.
Senator Feingold. I know there has been a great deal of
discussion this morning, which actually followed our
conversation yesterday, about the effect of the FISA law and
whether the President has the authority to violate that law.
And I would just like to associate myself with Senator
Feinstein's excellent description of congressional intent when
passing FISA. And I must say that your answer to her appeared
to be directly contrary to the Youngstown approach to Executive
power, which you and I discussed in detail yesterday, and you
appeared to accept as important and valid law.
The Supreme Court has held that Executive power is affected
very significantly by what Congress does, so it sounds like
overnight you have gone from being agnostic, as you and I have
gone back and forth since our first meeting on this question,
to holding what is a rather disturbing view. You have said
today that you believe the President may violate a statute if
he is acting within his Article II authority. Now, that
position, which I find alarming, makes it extremely important
to know what you believe the exact scope of the President's
Article II authority to be.
So are you telling the Committee, Judge, that anytime the
President is acting to safeguard the national security against
a terrorist threat, he does not have to comply with statutes?
Judge Mukasey. You have suggested that I have gone
overnight from being an agnostic to being a heretic. And--
Senator Feingold. Explain why you have not.
Judge Mukasey. I think all I am saying is that, obviously,
I recognize the force of Justice Jackson's three-step approach,
but I recognize also that each branch has its own sphere of
authority that is exclusive to it.
For example, just to take an example that has nothing to do
with the subject under discussion immediately, you have the
exclusive authority to vote me up or vote me down, for any
reason or no reason. If I am displeased with the result and
displeased with the reason, I could not validly go down the
street to the courthouse and file a lawsuit and claim that I
had been denied a right, even I got some judge who was willing
to entertain the lawsuit and even if I prevailed. There are a
lot of ways you could describe that outcome, but the rule of
law is not one of them, because the authority belongs only to
you.
There are areas of Presidential authority. I also said that
we are not dealing here with necessarily areas of black and
white. I understand that, which is why it is very important
that push not come to shove on these questions because the
result can be not simply discord but disaster.
Senator Feingold. Well, Judge, I will take your example. In
the case of the Youngstown case, people did have the right to
go down to a courtroom, and they did it, and they won. And
Justice Jackson indicated a three-part test, which your
analysis today I think renders essentially meaningless. So I
believe that this is contradictory, and it does trouble me. And
I have great respect for you. And I do believe, as Senator
Schumer indicated yesterday, you have a similar opportunity to
change the tenor of this administration in a way that Levi did
in a prior era of this country.
Let me just say with all respect that this area is perhaps
the most important one where the repairing has to be done,
getting away from this notion of ever expanding, infinite
Article II power. And I would ask you to take that very
seriously.
Let me switch to a different topic. As you know, the
decision whether to seek the Federal death penalty in any given
case rests with the Attorney General alone. Attorney General
Gonzales has been criticized for not being personally involved
in that decisionmaking process. In one case, he apparently
refused to speak personally with a U.S. Attorney about a case
in which he ordered that the death penalty be sought over the
U.S. Attorney's objections, and then he told this Committee
that this was one of the reasons that that particular U.S.
Attorney was fired.
How personally involved would you be in decisions about
whether to seek the Federal death penalty?
Judge Mukasey. I am going to be personally involved, and I
am going to review every such decision. I took sentencing
seriously when I was a judge. I never had occasion to pass a
death sentence, although I did preside over cases where that
was at least a possibility at various points in the case.
There is obviously no penalty that is analogous to the
death penalty. There are other penalties, and there is that
one. And that means that I am going to review every such case
in excruciating detail.
We have a system in place, as I understand it, that was put
there I believe under Attorney General Janet Reno in which we
have tried--I am already saying ``we,'' and that is
presumptuous--in which the Department has tried to assure that
the decision about whether to seek the death penalty or not
seek the death penalty depends only on the underlying facts of
the case, the history of the defendant, the acts involved, the
seriousness of--obviously the seriousness is always ultimate,
but the cruelty that accompanies a murder, and other indicia.
Senator Feingold. Will you refuse to speak personally with
a U.S. Attorney who disagrees with your decision and wants to
discuss it with you?
Judge Mukasey. That is a difficult question for the
following reason: If there is a defendant in a jurisdiction
where the United States Attorney wants to speak to me, then it
may very well be that that defendant's crime is no better, that
his background is no better than the background of a defendant
in a jurisdiction where the United States Attorney, because in
that jurisdiction they are more accustomed to or inured to or
favorable to the death penalty, the United States Attorney does
not feel he wants to intervene. The system was supposed to
treat--the system that was created in the Department is
supposed to treat those two people the same way.
Senator Feingold. Well, why wouldn't you speak to the U.S.
Attorney about this? You didn't specifically say that, but that
was my question. Would you agree to at least discuss it with
him?
Judge Mukasey. I would want to have that United States
Attorney's views made known to me. I do not want to be in a
situation of succumbing, if you want to call it that, to a plea
by a United States Attorney who does not want for good and
conscientious reasons--and there are people who have good and
conscientious reasons, and I recognize that--does not want to
seek when the same case may be getting different treatment in
another jurisdiction.
Senator Feingold. Should the additional cost of pursuing
the death penalty rather than a life sentence be a
consideration?
Judge Mukasey. There is a whole range of considerations.
That is, I guess, one of them, but I--
Senator Feingold. All right. Let me move to another topic
because I am running out--unless you feel you need to elaborate
there.
Judge Mukasey. No, I just do not want to create an
incentive for--obviously, the most costly you make it, then the
more the equation--
Senator Feingold. Fair enough. Fair enough. Judge, as is
the case in every Federal agency of all three branches of
Government, there are gay, lesbian, bisexual, and transgendered
Americans serving honorably and effectively at the Department
of Justice, and the Department sponsors commemorative events to
recognize the contributions of various minority groups. But
under Attorneys General Ashcroft and Gonzales, in contrast to
Attorney General Reno, it has refused to do so for GLBT
Americans. In addition, while DOJ Pride, an organization of
GLBT employees, is permitted to use Department space to hold
events, it is prohibited from advertising those events on
public billboards in Department buildings, again, unlike other
organizations for minority employees at the Department.
Similarly, the Department refuses to recruit at job fairs
aimed at GLBT attorneys, but sends recruiters to job fairs
aimed at other minority groups.
I am troubled by this. I suppose there is not much to be
done about this administration's attitude toward gays and
lesbians, but as Attorney General, you would have the power to
end this shameful conduct. Will you stop the disparate
treatment of gay and lesbian employees at DOJ?
Judge Mukasey. I do not understand the reason for that
treatment. When I was a district judge, I interviewed and hired
without regard to any matter relating to the personal life of a
prospective law clerk, any matter of that kind, and I see no
reason why there should be any different standard at the
Department.
Senator Feingold. I will take that as saying that you will
stop the disparate treatment of gay and lesbian employees at
DOJ.
Judge Mukasey. It sounds like I am going to.
Senator Feingold. Pardon me?
Judge Mukasey. It sounds like I am going to.
Senator Feingold. Sounds good to me.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Normally we would go to Senator Grassley next, but Senator
Grassley has advised us that Senator Coburn, like most of us,
has about five different places to be and is willing to yield
his place now to Senator Coburn. So we will go to Senator
Coburn, and the next Republican in line will be Senator
Grassley.
Senator Coburn. Thank you, Mr. Chairman, and thank you,
Senator Grassley, for your consideration.
Mr. Mukasey, Judge Mukasey, here is your quote: ``The
Department faces challenges vastly different from those it
faced when I was Assistant U.S. Attorney 35 years ago, but the
principles that guide the Department remain the same: to pursue
justice by enforcing the law with unswerving fidelity to the
Constitution.''
You have answered throughout yesterday many questions in
regard to that. I was one U.S. Senator who thought that the
previous Attorney General should resign, not for the similar
reasons that many of my colleagues did, but because of the
management that I saw at the Department of Justice.
What will you do to ensure that this quote and this axiom
of loyalty to the Constitution before loyalty to any political
appointment is carried out through the depths of the Justice
Department?
Judge Mukasey. Well, Dr. Coburn, I believe in a couple
things. One is you lead by example. You do things that you want
other people to do, and you do not ask people to do things you
do not want to do yourself. That is one way.
Another is to make certain that if there is any suggestion
that there is any problem that would compromise a
constitutional standard, is to get in it up to my elbows, or
further, if necessary, and to stop it. I have pursued up until
now hands-on management to the extent I have managed at all.
And I recognize that I do not have a business degree and I have
never managed anything like a 100,000-person agency with a $22
billion budget. Never done it. But I have had a hands-on
management style, and I want to continue that. I want to
consult with people not only in the immediate leadership but
people from below that so that I understand what it is that is
really going on and so that I am not caught by surprise. I do
not like surprises.
That is the way, I think, to make sure that the standards I
try to articulate are maintained, and that is what I hope and
plan to do if I am confirmed.
Senator Coburn. Thank you.
The Justice Department is unique in the Federal Government
in that it is the only agency that is allowed a percentage of
its unexpended balances at the end of the year to use
discretion to enhance what they do, both in terms of IT and
things. We allow the Justice Department to do that. We do not
allow any other agency to do that.
We recently passed a limitation on conferences in the
Senate with specifics to certain groups that were unindicted
co-conspirators and others, and real concern about the amount
of money the Justice Department spends on conferences. I
realize there have to be conferences.
Can we have a commitment from you that you will approve the
budget for conferences and that, in fact, that conferences will
be exactly what is needed and not more, and not more frequent,
and a real conservative action at looking at your fiduciary
responsibility in terms of the budget of the Department to make
sure that the dollars spent there are not wasted?
Judge Mukasey. I emphatically agree with that. I did not
attend many conferences when I was a judge. I attended the
Judicial Conference because I was required by statute to do so.
I am not a big fan of publicly funded get-togethers for the
sake of getting together.
Senator Coburn. OK. My final question, and then I will
refer back and will not use all my time. I am concerned about
morale in the Justice Department. There is no question some
management decisions have affected that. We have impacted that
by the controversies that, either real or otherwise, have put
before it.
What is your plan in this limited amount of time that you
have to create a vision and a leadership plan that will bring
the morale and the esprit de corps and the positive thinking
back to the Justice Department?
Judge Mukasey. I agree that perceptions about morale are
going to be part of the landscape that I am going to face at
the Justice Department. But I do not want by my words or my
actions to create a self-fulfilling prophecy in which talk
about bad morale creates bad morale.
I think what contributed to and what accounted for the
esprit de corps in the office that I served in 35 years ago was
that we were doing exciting, worthwhile work that had no
standard other than what served the public interest, and that
excited and energized people and contributed to great esprit de
corps.
I want to help people to do that. I want to fill positions.
I want to make it possible for people to do their jobs. That is
what accounted for the esprit de corps in the office that I was
in, and I think that is what promotes it in the Department.
Senator Coburn. Thank you. I want to thank you for your
commitment to take on this task for a very short period of
time, and to just compliment you for being willing to
sacrifice. You do not have to do this. You could do other
things. And I think it is admirable, and it is one of the
qualities of Americans that they will serve knowing that the
positive benefits for you personally are not going to be great.
Thank you.
Thank you and I yield back.
Senator Feinstein. [Presiding.] Senator Schumer?
Senator Schumer. Thank you, Madam Chairperson, and thank
you again, Judge Mukasey.
Now, I know you care as much as anyone about rooting out
public corruption. In fact, I note that when you were at the
U.S. Attorney's Office, you ultimately headed up the Official
Corruption Unit for a few years. Both you and I know that
sometimes the mechanism for pursuing public corruption can
itself become corrupted. And you and I both know that when
political considerations get enmeshed in political cases, the
public suffers and justice suffers. You have already given
comforting answers about some things you would do in the future
about making sure political actors and elected officials do not
themselves corrupt investigations of corruption. So I want to
ask you a few more questions along those lines.
First, how would you react if it came to your attention
that the White House Director of Political Affairs or a similar
official had pushed the United States Attorney to pursue a case
against a Democratic official?
Judge Mukasey. How would I react?
Senator Schumer. Yes.
Judge Mukasey. I think a euphemistic description would be
negatively.
Senator Schumer. OK. I will be specific here. Would you
confront the White House official?
Judge Mukasey. I would first have a conversation with the
United States Attorney involved and find out what it was that
had been said or not said and what pressure had been brought or
not brought. And if I thought that pressure was being brought,
I would have a conversation with the White House official, and
if necessary, with the President.
Senator Schumer. Right. Well, that was my next question.
Would you inform the President of the behavior? And you have
answered that. What would you do to rectify the situation?
Judge Mukasey. I would make absolutely certain that
whatever the effect was of the pressure was undone, and how to
do that obviously is going to vary on a case-by-case basis. But
one way might very be to take over that investigation with
someone from Main Justice who was not subject to that pressure.
But that is a hypothetical. I recognize that and I do not want
to--I would rather confront--I would rather not confront the
issue. But if I have to confront it, I would rather confront
the facts and not just a hypothetical.
Senator Schumer. Sure. Understood. Well, let me go to a
specific fact case, because there are troubling allegations
from several quarters that such behavior did actually occur in
the past. And so I want to talk not only prospectively but
retroactively, retrospectively.
In Alabama, there was a recent prosecution of a former
Democratic Governor named Don Siegelman. Although he was
ultimately convicted of several counts, there are serious
allegations that his case was politically motivated and
selectively prosecuted. A Republican lawyer from Alabama, Jill
Simpson, has apparently sworn under oath that an Alabama
political figure told her that Karl Rove pushed the Justice
Department to bring political corruption charges against Mr.
Siegelman. She also testified that the son of Alabama's current
Governor told her that a Republican judge would ``hang Don
Siegelman.''
It has also been suggested that when the case against Mr.
Siegelman was faltering, this political pressure caused people
at the Department to demand prosecutors ``take another look at
everything.'' And there are other troubling allegations that
are a matter of public record.
Given what we have seen in the Justice Department, again,
no smoking gun but a series of these types of issues--I have
read about this. I do not know the specific facts, but it
greatly troubles me. It greatly troubles me that perhaps,
perhaps, perhaps, this case was politically brought. My chief
counsel, who was a prosecutor in the U.S. Attorney's Office,
the same one you served in, said, ``Well, he was convicted.''
But that does not really answer the question per se.
So I am not accusing anyone of anything, and I do not know
all the facts, but I would like you to learn the facts and
report back. And so I am asking you--you know, you have
demonstrated you are a no-nonsense public servant. As good as
your intentions are, we cannot have a proper housecleaning
without resolving lingering issues and doubts.
In the spirit of making a fresh start and restoring public
confidence that politics has been removed from the Department,
I would ask you to personally look into the Siegelman matter
and just report back to us what you find. Would you be willing
to do that?
Judge Mukasey. Well, I do not know what stage the Siegelman
case is at.
Senator Schumer. He is convicted. He is in prison.
Judge Mukasey. I understand that. Is the case on appeal?
Senator Schumer. I do not believe it is--yes, it still may
be. But as you know, under Federal rules he is serving time in
prison right now.
Judge Mukasey. I understand that, but I think that it may
very well be that the first cut at the facts that you have
described and suggested ought to be had by the court. And it is
not unheard of for there to be a motion in an appellate court
to remand when facts come to the attention of lawyers after a
case is tried that warrant hearing by the court that tried it.
Senator Schumer. Not to interrupt you, I do not know the
details of this, but I think that many of these facts came out
after the trial and conviction at the district level and might
not be admissible before the court of appeals.
Judge Mukasey. What I am suggesting is maybe there ought to
be a remand or a request for a remand. The reason I am hesitant
to say, well, I am going to get into it and do something is
that when a case is in the process, as this one is, I--
Senator Schumer. Let me rephrase the question. Would you
take a look at it? If there is a possibility and the case is
ongoing because of appeal, would you be willing, if after the
appeal is completed, particularly if there is no remand, or it
is not admissible, these new facts are not admissible,
determined by that court, would you be willing to take a look
at this?
Judge Mukasey. I would certainly be willing to take a look
at it.
Senator Schumer. OK. Thank you.
I have a brief amount of time left. I just have a couple of
questions here about, again, disproportionate prosecution of
Democrats. I am going to be quick here because my time is
running out.
Donald Shields from the University of Missouri and John
Cragan from Illinois State University did a study of
prosecutions. Again, we see this in the backdrop of what we
have seen over the last few months and what we have learned
through the Chairman's leadership on this investigation. The
two professors of communication compiled a data base of 375
investigations and indictments of candidates and elected
officials by U.S. Attorneys. The preliminary findings suggest
that Democratic office holders and office seekers are
investigated 7 times as often as Republican ones. Obviously,
there may be the situation where there was 7 times as much
corruption brought to the attention of the U.S. Attorney among
Democrats, but if you believe bad people are sort of sprinkled
throughout the political system rather evenly, that is not one
that goes down easy or well.
I would ask you to take a personal look at the study, see
what you think, and if you thought it had some merit, undertake
a study of your own to determine whether there is not improper
or uneven treatment going on.
Judge Mukasey. I will take a look at the study, and I also
can tell you I believe that neither party has a monopoly on
either virtue or vice.
Senator Schumer. I would be interested, should you become
Attorney General--and as you know, I hope you will be--that you
report back to us in some way or another your view of that
study.
My time has expired.
Chairman Leahy. [Presiding.] Senator Grassley?
Senator Grassley. Thank you for the opportunity--
Chairman Leahy. Incidentally, and restart the clock, just
so people will know the schedule. We will go until 12:30, and
if all questions have not been asked, we will recess until 2
and then come back, just so that--is that satisfactory?
Senator Specter. Yes, Mr. Chairman, I think that is a good
idea. As I had commented to you earlier, there are a number of
subjects and a great many matters pending before the Committee
legislatively and on the executive privilege where we have
subpoenas outstanding, and Judge Mukasey has been very
cooperative and very helpful and very forthcoming, and I think
that he is responding to our questions. But it is not a fast
process, and they involve very complex subjects, and we have to
take the time necessary, and it is longer than we like to keep
you here, quite frankly, and it is longer than we like to stay
here, quite frankly.
As you see from the rotation around here, everybody has
got--Senator Coburn, it was announced you had to be in only
five places at one time. I am managing an appropriation bill
that is supposed to be on the floor, but we will have to just
rotate back and forth and cover these subjects, which, as I
say, are important.
Thank you for your cooperation, judge, and thank you, Mr.
Chairman.
Chairman Leahy. Senator Grassley, thank you. We will set
the clock back.
Senator Grassley. Thank you.
Judge, I have one question about whistleblowers before I go
back to where we left off yesterday, and we left off about that
non-disclosure form. But why I emphasize, as I hope I told you
in the privacy of our office, the need to worry about
whistleblowers is because--you probably know this, but if you
do not, you will soon find it out--there is a great deal of
peer pressure to go along to get along within Government
bureaucracy. And I do not mean just Justice. I mean Government
generally, and I mean all levels of Government. Whistleblowers
tend to be skunks at a picnic and are treated the same way. We
have laws that protect them, and I want to make sure that at
least within your jurisdiction you do what you can.
So what initial actions would you personally take to abate
any fears of retaliation against individuals who are critical
of procedures, practices, or policies that do not guarantee or
execute the primary mission or goals of the FBI within the
Justice Department or the entire Justice Department?
Judge Mukasey. I think I will tell people specifically and
I will tell them in action that I am receptive to and
supportive of anyone who can disclose any impropriety, whether
it is in the way rules are applied or in the rules themselves,
and who can help the Government stop impropriety and stop
waste, and making that explicit and then acting on it I think
are the only two ways to do it.
Senator Grassley. I think you are very sincere, but let me
tell you, one time I said to the President, you know, this
President, that you ought to have a Rose Garden ceremony
honoring whistleblowers, because for the most part they are
patriotic people and just want Government to do what Government
is supposed to do and point out things that are wrong. And I
got some sort of a comment back about if he did that, every nut
would come out of the woodwork, you know.
So with that sort of an attitude at the highest level of
Government, you know, it is very important that people a little
lower down, as you are--not very low down but somewhat lower--
make sure that the spirit of the law is carried out as well as
the law.
Where I left off last week, I have learned that the FBI and
the Justice Department Office of Inspector General have been
using an overly broad non-disclosure form during administrative
inquiries. This issue came to light recently in the course of
the OIG's investigation into the FBI's misuse of National
Security Letters. This form broadly states that no information
may be, quote-unquote, released in any form to anyone, and
indicates that if any portion of the information is released,
quote-unquote, beyond this room then further investigation
could result.
This is not a threat to be taken lightly coming from the
FBI particularly, but also from the Justice Department OIG.
While non-disclosure agreements may be a necessary and
important part of an internal investigation, executive branch
employees must remain free to provide information to Congress.
Section 820 of the Appropriations Act for the Department of
Justice prohibits any non-disclosure policy form or agreement
that does not contain specific disclaimers, ensuring that
Congress is not cutoff from crucial information.
I would like to have a copy of that statement put in the
record, that non-disclosure statement put in the record at this
point, Mr. Chairman.
As you can see, it is plain that the form does not contain
the disclaimers required under Section 820. As you know, the
Justice Department's budget was authorized for fiscal year 2007
under a continuing resolution, so Section 820 remains in
effect. But according to the Inspector General, the FBI has
been routinely using this broad non-disclosure form during
administrative hearings.
One, if you are confirmed as Attorney General, will you
conduct a review of non-disclosure agreements used by the
Justice Department and subordinate agencies and ensure their
compliance with 820 of the Appropriations Act of the Department
of Justice as well as other Appropriations Acts in the future
that might have similar provisions? And I guess it would seem
to me that without this disclaimer, it is kind of a thumbing-
the-nose attitude toward the Congress, I mean, like there is no
respect for the law we pass.
Judge Mukasey. Senator, part of the concern for the
integrity of national security that I have had occasion to
express this morning because I have been asked about it, the
only way we respect legitimate claims about national security
is if we do not promiscuously attach the phrase ``national
security'' to anything that we would rather not discuss, that
we would rather not have other people discuss. And so I think
we have to be very careful in rationalizing non-disclosure
obligations based on a claim, oh, this is national security.
I also obviously believe, as I have said, that the
oversight authority of this Committee is enormously important
in helping the Department fulfill its role.
So for those two reasons, I would be very, very critical of
non-disclosure agreements and make sure that they are used only
when it is necessary for them to be used and not simply as an
everyday way of doing business.
Senator Grassley. Well, I should accept your answer. It
seems to me, though, that that information about Section 820
ought to be broadly reminded of everybody as part of a
document.
Let's go to the Office of Inspector General. As I have said
so many times, oversight is very important. You cannot do it in
Congress if we do not get some help. We obviously need in this
regard strong Inspectors General to provide another independent
assessment of operations within the executive branch.
One, do you agree that independence is the hallmark of the
Inspectors General's integrity and effectiveness?
Judge Mukasey. I do.
Senator Grassley. Please explain what kind of relationship
you would intend to have with the Justice Department Inspector
General Glenn Fine, assuming he stays on in that position, or
whoever might succeed him, and describe what steps you will
take to ensure that his office will function as an aggressive
and independent check on the Department and its components. And
I speak here particularly of the FBI, and I will get into
something in just a minute on that, but not just the FBI.
Judge Mukasey. I hope to have a cordial and effective
relationship with him, as I would with any other officer in the
Department. And he is a person--he in particular is a person of
great experience. He has been at this for a long time. And his
views get a lot of respect, and they are entitled to a lot of
respect, and they are going to get a lot of respect from me.
Senator Grassley. Earlier this year, the Office of
Inspector General released an important report on the FBI's
misuse of so-called exigent letters and National Security
Letters. Some of the findings suggested that more inquiry was
necessary in determining whether officials had knowingly
approved FBI information requests containing false statements
or improperly characterizing requests as emergencies to obtain
records without legal process.
At first, the OIG was going to merely allow the FBI to
investigate itself. However, after this Committee had a
hearing, the OIG decided to conduct further investigation
jointly with the FBI Inspection Division. While this is better
than having no role for the Inspector General, it seems that
allowing the FBI to actively participate in an investigation of
its own potential wrongdoing could undermine the credibility
and public confidence in the final product by providing an
opportunity for the FBI insiders to tamper with the
investigation.
One, do you believe conducting joint investigations with
the entity under investigation is consistent with the principle
of Inspector General independence?
Judge Mukasey. I agree that having an agency investigate
itself is generally not the optimum way to proceed. The one
fact, as I understand it, that gives me pause here is that I
believe that one of the preliminary conclusions--that among the
preliminary conclusions reached by the Inspector General in his
first report--and I understand this matter is still under
investigation.
But a preliminary conclusion was that there were no
controls in place, there was no monitoring in place, and that
that was in part what led to the abuse, where a form that
originated in one place where there were grand juries sitting
was then sent around and nobody bothered to read the form, they
used it, and told people that they were to produce information
for use you a grand jury when there was no grand jury, which is
inexcusable, I agree; but that what happened was that when they
saw that report, the FBI did, as I understand it, put controls
in place and monitoring in place, and I think that given that
that has been the response, that we ought to at least give
those controls and that monitoring an opportunity to operate.
And so their participation in the ongoing investigation is not
perhaps as inappropriate as it might at first seem.
Senator Grassley. OK. Well, I hope you are right, but I
hope also you will try to do as much as you can in having the
Inspector General just by himself do that work.
Mr. Chairman, I do not think I will be back for a third
round, and I will submit some questions on agricultural
antitrust and things of that nature that I would appreciate
some answers for.
Thank you.
Judge Mukasey. Thank you very much.
Chairman Leahy. Thank you. We're going to go to Senator
Durbin in just a moment. Before we do, just while Senator
Grassley is still here, followup on the Inspector General.
Right now, this is something totally unprecedented. I
happen to support what he's doing. The Inspector General is
reviewing the sworn testimony of your predecessor, because
questions were raised by members of this committee that some of
the answers were not truthful. He's also reviewing sworn
testimony of others to determine whether they were truthful.
Could I have your assurance that you will not in any way
interfere with that review that he is doing?
Judge Mukasey. You have that assurance.
Chairman Leahy. Thank you.
Senator Durbin?
Senator Durbin. Thank you, Mr. Chairman.
Several of our colleagues this morning have said a few
words to Steven Bradbury, who's the interim, or acting head, of
the Office of Legal Counsel. I would, without returning to
yesterday's line of questioning, say that until it's clear in
my mind why the investigation of Mr. Bradbury's conduct
relative to the warrantless wire tap program by the Office of
Professional Responsibility was not completed and was, in
effect, preempted in an unprecedented way by the President
refusing security clearances to the Office of Professional
Responsibility, I will continue to hold his nomination and
believe that serious questions about his fitness to serve
remain, in my personal opnion.
I would like to ask you, Judge Mukasey. We talked briefly
yesterday about ongoing issues involving race in America. There
is another issue which is troubling and is in the papers on a
regular basis, and it's the issue of immigration.
In my town, I'm fortunate to represent the city of Chicago.
The chief of police has said to me that they have made a
conscious decision to give confidentiality to witnesses and
victims when it comes to their immigration status in the belief
that this is the only way to encourage cooperation and the
reduction of crime, particularly violent crime. Other cities
have made that same decision--your city of New York, under
Mayor Guiliani; cities like Minneapolis and Houston have
reached similar conclusions.
I would like to ask, since there's clearly a question to be
raised here of policy, in that immigration laws are Federal in
nature and the decisions are being made at the State and local
level to have confidentiality agreements, which in the eyes of
some suspend the enforcement of those Federal laws by local
agencies, what is your position or opinion on these
confidentiality agreements? Or I should say confidentiality
statutes.
Judge Mukasey. I wasn't aware that there were statutes. I
thought these were simply matters of--
Senator Durbin. I think you're right. More a matter of
policy.
Judge Mukasey. Policy. Wholly apart from that, the
governance of every political subdivision is the responsibility
of the executive in that subdivision--the mayor of a city,
Governor of a State--and they have to answer to their
constituents for the safety, for the welfare of their locality.
It seems to me they have to use their own good judgment as to
what is necessary to protect that safety and welfare and they
can't take a principle, which is that we don't want to tolerate
unlawful immigration--we don't.
We can't take a principle like that and go over a cliff
with it. They can't say we're going to let this town be as
lawless as it has to be because we are going to turn in anybody
who comes in as a witness who is not properly here. We can't
say that we're going to let children starve because their
parents are not lawfully here. There has to be--there is a
reality to be dealt with, and they are the people that have to
deal with it. I am very sympathetic to that, and very much
loathe to second guess them, and I won't second guess them as
Attorney General.
I may try to persuade an executive to adjust a policy one
way or another in a way that accommodates reasonable needs, but
that's a very different thing from saying that the sacrifice,
the physical welfare of people in a particular jurisdiction,
because we have a principle here and illegal immigration is a
hot-button issue, therefore everything else goes by the
wayside--you can't say that.
Senator Durbin. Can I conclude, or would you conclude from
that statement that the primary responsibility for enforcement
of immigration laws and policies is a Federal responsibility?
Judge Mukasey. The primary responsibility is a Federal
responsibility. Often you can't do that without the cooperation
of local authorities. I would seek it, but certainly it is
principally the Federal Government's responsibility.
Senator Durbin. We spoke about the issue of race yesterday
and I thought your answers were consistent with my values, and
the values of most Americans in terms of trying to reduce the
tension between whites and African-Americans when it comes to
justice in America.
I'd like to ask you about a specific case that you were
involved in, Jordan v. LeFevre. This case involved a murder
charge. The prosecutor struck multiple African-American jurors,
potential jurors. The State trial judge refused to allow the
defense attorney to have a fair opportunity to challenge the
striking of these African-American jurors, the so-called Batson
challenge.
You denied the defendant's habeas challenge and allowed the
conviction to stand, and were reversed by the appellate court.
The appellate court said, ``The court insufficiently protects
the defendant's equal protection rights when, in its haste to
speed along the proceedings, it declares that a reason is
rational without making the critical determination as to
purposeful discrimination.''
On reflection, do you feel the appellate court's
observation is correct and that you overlooked what could have
been purposeful discrimination by the State in the selection of
jurors?
Judge Mukasey. The appellate court's observation was
certainly correct. What I recall--from what I recall of that
case--it's been a while since I looked at it--one of the
elements in my consideration was giving deference to the
judgment of the State court that made that decision in the
first instance.
The case came back to me. We had a hearing and went through
each of the jurors that were struck, each of the reasons that
were given, and ultimately the Batson challenge was rejected
and that, I believe, was sustained on appeal. I don't actually
recall whether it went up or not. I believe it did, and it was
sustained.
But I certainly agree that you have to give people an
opportunity to make a record, and if I too hastily thought that
somebody had been given an opportunity to make a record and
that was not the case, then, yes, I regret that.
Senator Durbin. We had questions yesterday about the issue
of torture and the Geneva Conventions. The techniques which
have been attributed to this administration involve painful
stress positions, threatening detainees with dogs, forced
nudity, waterboarding--that is, simulated drowning--and mock
execution.
When we had the Judge Advocates General testify, I asked
point-blank whether they believed these techniques violated the
Geneva Conventions and they said yes. And I asked if they felt
if those techniques were used against an American detainee they
would be violative of the Geneva Conventions and they answered
in the affirmative.
What is your opinion?
Judge Mukasey. They--I mean, I'm certainly not in a
position here to argue with the Judge Advocate General's view
that they violate the Geneva Conventions and that, whether used
against us or against anybody else, that they would. That said,
I think we have to also recognize that when we're talking about
coercive methods of interrogation, this is not a matter of
choosing pleasant alternatives over unpleasant alternatives or
good alternatives over bad alternatives. It's a choice among
bad alternatives.
What the experience is of people in the Judge Advocate
General's corps, who are enormously well-disciplined and very
skilled, what that experience has been with captured soldiers,
captured military people, from enemies we fought in the past,
may very well be far different from the experience that we're
having with unlawful combatants that we face now. It's a very
different kind of person.
Senator Durbin. Well, I want to make sure I understand your
response, because I think you may have created a division here
in treatment, arguing that if these techniques were used in the
past before the current threat of terrorism, it would be a
different circumstance under the Geneva Convention than it
might be today. I want to make sure I don't draw the wrong
conclusion from that previous answer, so if you could clarify
it for me, please.
Judge Mukasey. I'm not sure how I can--I mean, I'm not sure
I can clarify.
Senator Durbin. Well, let me go back. I understood you to
say that the Judge Advocates General, speaking about the Geneva
Conventions and these specific methods of torture, may have
been referring to previous times, previous conflicts, and that
this conflict and this challenge of terrorism may present a
different set of challenges that might be viewed or interpreted
differently under the Geneva Conventions. If that is not what
you said, please clarify.
Judge Mukasey. I'm not sufficiently familiar with
interpretations of the Geneva Conventions to be offering views
on what would or would not come within it or outside it. What I
thought I was talking about is procedures that are acceptable
to the military that are authorized in the Field Manual and
that represent the limit of what it is that the Armed Forces
can do. There are other techniques that are, as I understand
it, that may be used by, with proper authorization, people
outside the military. Those are not covered in the Field
Manual.
Senator Durbin. But I'm speaking of the Geneva Conventions.
The Judge Advocates General said the techniques that I
described to you violated Common Article 3, and this is the
baseline test that applies to everyone, not just soldiers. I
believe that the Supreme Court agreed with that conclusion in
Hamdan. Do you see that differently?
Judge Mukasey. What part of Common Article 3 the Supreme
Court found in Hamdan was applicable through--I believe through
the Universal Code of Military Justice, unless I'm confusing my
cases. I can't, as I sit here, recall precisely what part of
Article 3 the Supreme Court found applicable. I thought they
were talking about the need for trial and for an opportunity
for a detainee to get a hearing. I did not think that concerned
interrogation techniques.
Senator Durbin. Let me try to bring it to the bottom line,
because I want to make sure if there is common ground, we find
it, and if not, that it's clear on the record.
I want to understand, as to these interrogation techniques,
whether you believe that they would constitute torture and,
therefore, could not be used against any detainee, military or
otherwise, by the United States Government?
Judge Mukasey. I don't think that I can responsibly talk
about any technique here because the very--I'm not going to
discuss, and I should not, and I'm sorry I can't discuss, and I
think would be irresponsible for me to discuss, particularly
the techniques with which I am not familiar. When there are
people who are using coercive techniques who are being
authorized to use coercive techniques, and for me to say
something that is going to put their careers or freedom at risk
simply because I'm going to be congenial, I don't think it
would be responsible for me to do.
Senator Durbin. This is not a congeniality contest, and I'm
sorry that I've gone over, Mr. Chairman. But, for instance, I
just want to--if I could make one last point on the issue of
waterboarding, simulated drowning. The United States has long
taken the position that this is a war crime. In 1901, U.S. Army
Major Edwin Glenn was sentenced to 10 years hard labor for
waterboarding a captured insurgent from the Philippines. U.S.
military commissions after World War II prosecuted Japanese
troops for engaging in waterboarding.
The torture statute makes it a crime to threaten someone
with imminent death. Waterboarding is a threat of imminent
death. I'm hoping that you can at least look at this one
technique and say ``that clearly constitutes torture, it should
not be the policy of the United States to engage in
waterboarding, whether the detainee is military or otherwise''.
Judge Mukasey. It is not constitutional for the United
States to engage in torture in any form, be it waterboarding or
anything else.
Senator Durbin. There's your answer. The Chairman will
followup.
Chairman Leahy. I just want to make sure I fully
understand. But I wrote down about three different times when
you said ``unless it is authorized''. Are you saying that
techniques can be authorized that are not constitutional?
Judge Mukasey. No, that is emphatically not what I'm
saying. What I'm saying is that techniques can be authorized
that are beyond the Army Field Manual. I should not get into a
discussion of what they might be, or in what combination they
might be authorized.
Chairman Leahy. But simply because something is authorized,
if you have a law that says it is torture and it's not allowed,
is there any way it could be still authorized?
Judge Mukasey. If it is torture, as defined in the
Constitution, as defined by constitutional standards, it can't
be authorized. We don't have the Nuremberg defense.
Chairman Leahy. Is the current statute outlawing torture
constitutional?
Judge Mukasey. I believe it is.
Chairman Leahy. So that if something was authorized outside
that statute or that violates that statute, that authorization
is illegal?
Judge Mukasey. Correct.
Senator Durbin. Thank you. Thank you, Judge. Mr. Chairman.
Chairman Leahy. Senator Whitehouse?
Senator Whitehouse. Just to finish that thought, so is
waterboarding constitutional?
Judge Mukasey. I don't know what's involved in the
technique. If waterboarding is torture, torture is not
constitutional.
Senator Whitehouse. ``If waterboarding is constitutional''
is a massive hedge.
Judge Mukasey. No. I said if it's torture--I'm sorry. I
said, if it's torture.
Senator Whitehouse. If it's torture. That's a massive
hedge. I mean, it either is or it isn't. Do you have an opinion
on whether waterboarding, which is a practice of putting
somebody in a reclining position, strapping them down, putting
cloth over their faces and pouring water over the cloth to
simulate the feeling of drowning, is that constitutional?
Judge Mukasey. If it amounts to torture, it is not
constitutional.
Senator Whitehouse. I'm very disappointed in that answer. I
think it's purely semantic.
Judge Mukasey. I'm sorry.
Senator Whitehouse. As you consider this, I'd like to offer
you at least a thought that I'd ask you to consider. This comes
from testimony brought before the Senate Intelligence Committee
that is declassified. It comes from a military officer who has
conducted interrogations who was team chief during the Gulf
War, who had all of the services under his command,
interrogating literally thousands of prisoners. He was an
advisor to Special Operations task forces during Iraqi Freedom.
He says, ``I've had a chance to really look at the
academic, theoretical side of interrogation and I am steeped in
the operational side.'' I asked him, ``From the point of view
of intelligence-gathering effectiveness, would you, could you,
or should you go beyond the Army Field Manual and the
techniques that are authorized in the Army Field Manual in
order to obtain intelligence?
His answer: ``Senator, I thank you so much for that
question, because I've been waiting 20 years to answer it. That
is: absolutely not. I am not at all limited by the Army Field
Manual in terms of what I need to do to generate useful
information. That's the key: accurate, useful information, not
leading questions to force soembody to say what they think I
want to hear, but the full spectrum of their knowledgeability;
not answering only the questions I ask, but developing what I
call `operational accord', a relationship that they see it's in
their best interests under non-pressure, non-coercive
circumstances that it would be in their best interests to
answer these questions fully.''
He gives an example of critical intelligence gathered in a
search for SCUD sites in the Iraq war and explains that he
received it because the individual said: `` `I'm so amazed at
my treatment. I wanted, if I was going to be captured, to be
captured by one of your allies, not by the Americans, because I
was told you were animals. You've treated me like a gentleman.
You've treated me with respect. You are clearly knowledgeable
of my customs and my culture. I am more than happy to answer
any questions that you have.' ''
So I asked him to confirm this: ``What you mean to say was,
you don't see the constraints of the Army Field Manual, the
moral constraints, the legal constraints as in any way
inhibiting the effectiveness of your examination techniques,
that you could do everything you wanted to, that you missed for
nothing because of those restrictions, is that what you
intended to say? ''
The answer: ``That's precisely what I meant to say. I don't
see those as limiting my ability to work, the spirit or the
letter of that guidance. My approach was what we called a
relationship-based approach. I've never felt any necessity or
operational requirement to bring physical, psychological, or
emotional pressure on a source to win their cooperation. So,
following the guidance in the Field Manual, I feel
unconstrained in my ability to work in the paradigm I've taught
for so many years--22 years, 100 percent interrogation
experience.'
So then I asked him, ``Why don't other countries do this?''
He said, ``That gets to the very heart of the matter, and it is
this: there are two objectives that one can pursue in
interrogation, either winning cooperation or compliance. They
seem very similar, but there are profound differences.
Compliance means to take action that is against your interests
that you don't support.
It has nothing to do with intelligence. Cooperation is
winning a source's willingness to provide useful information.
If the Chinese were interested, the Koreans, the North
Vietnamese, it was maybe 5 percent intelligence, 95 percent
compliance, meaning creating propaganda. That's a whole
different paradigm. The approaches that they use, like sleep
deprivation and torture, ultimtely will get any one of us in
this room to do things we couldn't imagine today, but it
doesn't necessarily mean our ability to provide useful
information.''
He concluded later by saying, ``So I think the key point,
sir, is are we trying to produce compliance, which is
propaganda, or cooperation, which leads to intelligence?'' I
hope, as you're evaluating these techniques, you will also
consider the, I believe, widely held view of career
professionals--the FBI, the military--in the interrogation
field who think that these techniques are not only wrong, but
ineffective.
Two quick questions. We talked yesterday about the rules
and regulations, the norms, practices, and protocols, and
traditions of the Department. I urged you to consider those.
You said that you would do so, and you referred to a variety of
people.
I want to pin you down and ask you, sir, if you would
pledge to undertake some formal process of review and
evaluation of those internal protocols, norms, and practices so
that you get a report from experienced people on what needs to
be repaired?
Judge Mukasey. I'm going to pledge to undertake to review
the practices. I'm going to pledge to consult with people, both
inside and outside the Department in the course of that.
Convening a formal process is something I can't commit to now.
If it is necessary and if I find that the results of inquiry
and consultation don't yield a satisfactory result, I will
consider that.
Senator Whitehouse. Do you agree to keep me informed of
your activities in this area?
Judge Mukasey. I will.
Senator Whitehouse. Thank you.
Finally, in the event that you are sworn in as Attorney
General of the United States, do you believe that you will be
working for the people of the United States of America or the
President of the United States of America?
Judge Mukasey. I will be working for all the people of the
United States of America, and I see no antithesis between that
and the President's Cabinet. I am here because I've been
nominated by the President. If I am confirmed, I will be a
member of the President's Cabinet. I will serve as I believe
the certificate says, ``at his pleasure''. That said, my oath
is to uphold the Constitution, and that's what I'm going to do.
Senator Whitehouse. There is a distinction that I believe
your predecessor failed to appreciate between who has the
appointing authority for a position and where the duties of
that position run. Do you agree with that?
Judge Mukasey. I don't want to sit here, and I'm not going
to sit here, and criticize my predecessor. I have no--
Senator Whitehouse. I'm sorry. Let me rephrase the
question. Do you agree with that distinction?
Judge Mukasey. I have no such confusion.
Senator Whitehouse. Very good. OK. Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Judge Mukasey has requested a 5-minute break. We'll take a
5-minute break. I've been told you requested one. No?
Judge Mukasey. Somebody missed a signal.
Chairman Leahy. Well, if you're not, then we will go to
Senator Cardin.
Judge Mukasey. Fine.
Chairman Leahy. Thank you.
Senator Cardin?
Judge Mukasey. Maybe somebody thought I should have
requested it. I don't know.
[Laughter.]
Senator Cardin. Thank you, Mr. Chairman.
Let me just ask a few more questions on torture, just to
complete the discussion here. If I understand your answers, if
you determine or if it's determined by the Department of
Justice that an individual has violated the torture statute or
the Constitution, and even though that person has acted under
authority of the commander or the President, that if the
determination is made that in fact the constitutional statute
has been violated, you would move to hold that person
accountable?
Judge Mukasey. I would move to hold that person accountable
after reviewing the facts of that case.
Senator Cardin. Certainly. I implied that in the question.
This is not trying to be a trick question. I'm just trying to
determine, you've been pretty clear about torture being
unconstitutional. You've been pretty clear that our statutes
are to be enforced. I understand there could be some challenge
as to the interpretation of the statute. I understand that.
Which gets me to the second point that we've been going
back and forth on, and in response to Senator Whitehouse's
questions. What I guess I'm looking for, and I think I feel
comfortable with your answers, is that you're going to be
advising the President, advising our Department of Defense,
advising our different agencies as to your independent judgment
within the Department of Justice as to what constitutes
torture, and that you're not going to be just responsive to try
to defend what some commander may want because that person
believes it's effective in getting information.
Judge Mukasey. That's absolutely correct. Now, I'm going to
request a short break.
Chairman Leahy. Thank you. We will take a break for 5
minutes?
Judge Mukasey. Yes.
Chairman Leahy. Five minutes.
[Whereupon, at 12 p.m. the hearing was recessed.]
AFTER RECESS [12:09 p.m.]
Chairman Leahy. The committee will be in order.
I understand somebody is still trying to figure out how to
turn this away from being a meat locker.
Judge Mukasey. I'm glad someone else noticed.
Chairman Leahy. I apologize. Even as a Vermonter, I find
this rather chilly.
[Laughter.]
Chairman Leahy. Senator Cardin?
Senator Cardin. Thank you, Mr. Chairman.
Judge Mukasey, I'd like to followup with the discussion we
had yesterday on voter suppression. In your response, you said
that voter fraud and voter suppression should go hand in hand
and it should not be an either/or situation, and I agree with
that. There's no disagreement that we want to make sure that
those who are qualified to vote are the only ones that do vote,
and we want to fight voter suppression issues.
The reasons for my questions, is that many of us believe
there have been resources taken away from voter suppression. My
question to you is whether you will commit to make sure there
are adequate resources and attention in your Department to
voter suppression issues.
Judge Mukasey. I well understand the reason for your
concern, and I share it, and I will try to assure that.
Senator Cardin. Thank you. And I very much appreciated your
response in regard to the more recent types of attempts at
voter fraud, to suppress vote by wrong information given out on
election day. I very much appreciate your attention and
response on that issue.
Judge Mukasey. And when I characterized that as fraud I
wasn't trying to be cute and say it's distinct from voter
suppression. It is fraudulent voter suppression. It is to be
put down.
Senator Cardin. Thank you.
Judge Mukasey. So there's no ambiguity.
Senator Cardin. I appreciate that definitive answer.
Let me also return to one other subject we talked about,
and that was the hate crimes activities, and just bring to the
attention of this hearing the community relations services
within the Department of Justice, because I think it's a very
valuable resource that would help provide assistance to
communities and individuals who have been subject to
discrimination issues.
I would just urge you to make sure there are adequate
resources and attention given to that particular service. I
will point out in the Jena situation, I think it took over a
year before there was any attention by that agency to the
problems in Louisiana. I just think that's a good community
service offered by the Department of Justice and would urge you
to take advantage of it.
Judge Mukasey. I will. Thank you.
Senator Cardin. Let me bring up a subject that has not been
brought up, and that is ethnic and racial profiling, to try to
get your assessment of your commitment in this regard. This
type of activity has unfortunately been present in America for
many years. In the 1900's, the early 20th century, we had the
Palmer raids that dealt with immigrants; during World War II,
we had Japanese-Americans who were interred, and Congress has
taken steps to tried to acknowledge and correct that mistake in
our history.
More recently, there have been actions by law enforcement
to target certain communities by profiling. Many of us believe
that this is not what America stands for, and I would just like
to get your thoughts on the use of ethnic or racial profiling.
Judge Mukasey. I'm one of the people who believe as you
say: this is not what America stands for. We don't single out
people by group. People get treated as individuals. Singling
out groups and putting particular focus on groups or looking
for particular groups when law enforcement activities are being
conducted is not consistent with a system that evaluates each
person individually. I understand that and I want everybody
else in the Department to understand it. I believe they do, but
I want to make sure they do.
Senator Cardin. And last, let me bring up another issue
which I don't believe has gotten too much attention during this
hearing, and that's the disparate case issues where you have a
supposedly neutral action taken that has a negative impact on a
minority community, whether it's in housing, employment, or
elsewhere. The concern is that there has been less attention
given to these types of cases during the last several years by
the Department of Justice than historically has been given,
whether it's in housing, or whether it's employment, or other
areas.
I would just like to get your assessment as to the
importance of going after those types of activities that on the
surface may appear to be neutral, but have had a negative
impact on advancing rights for all Americans.
Judge Mukasey. I think when you find that a rule or a
practice is having an impact on one group that is very
different than the impact that it's having elsewhere, you have
to take a very close look, subject to very close scrutiny, any
such rule or practice to make sure that we're not talking about
something that is simply a cover or a code for something else.
Senator Cardin. I thank you for that response. I think you
will find, among your career attorneys and staff within the
Department of Justice, tremendous experience in this area. I
think there has been a sense of frustration, at least as has
been expressed to some of us, that that analysis has not gotten
the type of attention that it should at the highest levels of
the Department of Justice.
So, I would just urge you to please take a look at those
numbers, take a look at those cases there that have not been
brought forward, because I do believe that there has not been
the type of attention given to these types of cases that not
only affect the specific practice, but gives clear guidance to
the private sector as to what will be accepted and not accepted
in our society in order to try to improve opportunity for all
Americans. So I would just urge you to please take a look at
what's been done, and once again I thank you for your patience
with this hearing and wish you well.
Judge Mukasey. Thank you very much.
Senator Cardin. Thank you, Mr. Chairman.
Chairman Leahy. Senator Specter is managing a bill on the
floor which we'll be voting on very soon. He wants to come back
for another round which, as a matter of courtesy, of course,
I'll grant as the ranking Republican on this committee. He will
come back at 2. But before we break, I'd like to do two things.
One of the concerns I've had--actually, Senator Cornyn from
Texas has joined me in this--is the practice of the previous
Attorney General, who has abetted the Bush administration's
abuse of secrecy and encouraged the Department of Justice
officers to withhold information under the Freedom of
Information Act, or FOIA. It's a bedrock statute that opens our
Government to our citizens, as I've seen many times.
No matter whether you have a Democratic or Republican
administration, they're going to be happy to send out press
releases sayign all the things that they did right. It is
usually up to the press to find out the things they did wrong,
and FOIA helps in that regard.
Will you commit to review and consider overturning some of
these policies, Number one, and second, will you look at the
legislation Senator Cornyn and I have put together with strong
bipartisan support to reform FOIA? The reason we want to do it
now is so we can say we are doing it, not having any idea who
the next President is going to be, or whether it's a Republican
or Democratic administration. We feel strongly about this, and
it should be done now so that whoever's in that administration
will have an open administration.
Judge Mukasey. I will certainly review the policies.
Obviously I can't say that before we had FOIA we didn't have a
democratic system in this country, we did. But we have
certainly enhanced it substantially with that statute, and I
understand the value of it and the utility of it. I'm going to
look at the policies you mentioned with that in mind.
Chairman Leahy. We'll come back. I may have some further
questions. I am concerned that a number of your answers
yesterday, there was a very bright line on the questions of
torture and the ability of an Executive, or inability of an
Executive, to ignore the law. That seems nowhere near as bright
a line today. Maybe I just don't understand. You're a lawyer
from New York City. You've been a judge. I'm just a lawyer from
the small State of Vermont. I may not fully understand the
nuances.
But I'm going to be asking further questions because I
don't know whether you received some criticism from anybody in
the administration last night after your testimony, but I sense
a difference, and a number of people here, Republican and
Democratic alike, have sensed a difference. I want to make sure
we clear that up before we finish.
Judge Mukasey. I received no criticism. I had dinner with
my family last night.
Chairman Leahy. You did a lot better. I did, too. I turned
down a public event so I could have a quiet dinner with my
family. You're probably a lot better off that way.
Judge Mukasey. Well, I should also point out that when you
say I'm a judge from New York, I am a judge from New York and
I've watched a lot of cross examinations, and I know the way
cross examinations proceed: you start with an easy step and you
go down the road. I don't want to go down the road on
interrogation techniques. That's obvious. Did the things that
were presented to me seem over the line to me as I sit here? Of
course they do. They were intended to, and they did, and they
do. But part of this is, it's not so much the question as it is
the next question and the one after that. That's what concerns
me. I need to be, I think, very careful about where I go on
that subject.
Chairman Leahy. Let's think about it during the noon hour,
because I will come back to it on the questions. It's one thing
to say the statute allows this or doesn't allow this. That
said, I am concerned that you leave some opening that different
parts of our Government may be held to different standards, or
that some may be authorized to act outside the law. I'm careful
in choosing my words in an open session, but we may want to go
back to that issue.
Judge Mukasey. Thank you.
Chairman Leahy. Thank you.
We'll stand in recess until 2. I thank you. We'll try to
get the place warmed up before then.
[Whereupon, at 12:20 p.m. the hearing was recessed.]
AFTER RECESS [1:59 p.m.]
Chairman Leahy. Judge, I think it should be a tad warmer.
Judge Mukasey. It is. Thank you.
Chairman Leahy. I thank those who arranged that.
I mentioned that Senator Specter was managing a very
significant bill on the floor, and he had another couple of
questions he wanted to ask. So I'll yield to him, and then I
think we'll be able to wrap up with you. Although I must point
out, as I did earlier, I will followup on one point we covered
earlier this morning. I will have some followup questions, and
I would hope you would look at them very seriously.
Senator Specter. Thank you, Mr. Chairman.
Judge Mukasey, there has been a lot of controversy over the
so-called Thompson memorandum and the McNulty memorandum with
respect to the issue of attorney/client privilege with a
practice by the Department of Justice to obtain waivers of the
attorney/client privilege, and some controversy as to whether
they're voluntary or to what extent they are not voluntary.
Legislation is pending which would eliminate that practice.
My concern arises on two fundamental propositions: one, is
that the commonwealth, the government, the State, has the
burden to prove its case; and second, the right to counsel is a
constitutional right and the attorney/client privilege is an
indispensible part of the constitutional right to counsel.
I have had some experience in the field, having been D.A.
of the city of Philadelphia, and I would never have considered
asking a defendant to enable me to prove his case,
metaphorically speaking, out of his own mouth. The Department
has made some modifications from the Thompson memo to the
McNulty memo by raising the level within the Department of
Justice, from Assistant Attorney General to Deputy, whether
there's a request for a waiver on facts or a waiver on opinions
given by the attorney. You, of course, are very familiar with
this issue, for many reasons. You have ruled on the issue. Is
there any real justification for having a waiver on anything
other than a purely, purely voluntary basis?
Judge Mukasey. First of all, I should start out agreeing
with you on how fundamental privilege is. Absent the privilege,
the right to counsel is nearly meaningless. You can't get
counsel--you can't be expected to disclose the facts to your
lawyer so as to get good counsel if what you think you're doing
is disclosing them ultimately to the prosecutor.
In a corporate setting, the issue--the overriding issue--on
whether to prosecute a corporation or not prosecute a
corporation is what happened, who did it, how pervasive the
conduct was, and whether all of this rises to the level that
requires prosecution, not only to individuals, because after
all, corporations can act only through individuals, but of the
corporation itself. And in the course of that, a lot of that
has gotten lost with focus on looking for waivers of attorney/
client privilege or other rights of the corporation.
I think part of this is because corporations are run by
directors who have an obligation, a fidiciary duty, to find out
facts, and because they often do appoint committees to find out
facts and do reports, it is--those--the existence of those
reports is well known, and their availability is, in a way,
tempting. They help prosecutors save time in finding out facts.
Senator Specter. Well, if the directors want to waive the
corporate privilege, they could do that. It is their voluntary
decision. That wouldn't necessarily involve the employee who
has a separate privilege. But the difficulty arises that if the
privilege is not waived, there are tougher charges. The
prosecuting attorney has vast discretion, as we all know, on
charging.
In many ways, the prosecuting attorney is the most powerful
person in the government, said to have the keys to the jail in
his pocket, not only on charging, but on recommendation of
sentence. An awful lot of coercive power. That's where the
problem comes in. If they want to do it voluntarily, nobody
ever told them before the Thompson and McNulty memos that they
couldn't do it.
Judge Mukasey. Particularly when it involves a corporation,
where the very bringing of a charge is often the end of the
road. I think that the problem that's arisen under those
memoranda is that when corporations want to say that they're
cooperating with prosecutors, we want to get the deferred
prosecution or non-prosecution agreement, the prosecutors are
told that when they're evaluating the standards for determining
whether the corporation is, in fact, cooperating or not, the
degree to which the corporation discloses facts, and thus
waives its privilege, is one measure. I think, though, that--
Senator Specter. Well, why should cooperation or a waiver
of a right determine what the charge will be or what the
sentence recommendation will be?
Judge Mukasey. I think it's not--
Senator Specter. If you plead guilty, it's well known that
if you show contrition it has to be taken into consideration as
a mitigating factor. But why should failure to waiver a
constitutional right be an aggravating factor?
Judge Mukasey. I think it's not intended to be made an
aggravating factor, but simply that if a corporation, through
its individuals, which is the only way that a corporation can
act, if there's been a violation of law, there's always a
question of whether the corporation should be prosecuted or
not. It's not a question--
Senator Specter. Do you think the McNulty memorandum is a
solid approach to this issue?
Judge Mukasey. I haven't reviewed the McNulty memorandum
recently. I think it has to be examined very, very carefully,
and the point made that we are not--that that is not to be used
as a club, and the corporation is not to be told, you're not
going to be--you want to say you've been cooperative? If you
haven't waived the privilege, you haven't been cooperative, and
the conversation stops.
Senator Specter. Well, if it's not to be used as a club,
that's fine. But it is a club and it is used as a club, from
all we hear. Senator Leahy and I sat down with Deputy Secretary
McNulty and tried to find some common ground and we couldn't do
it. So let me ask you to--you say you haven't reviewed it, and
I know there are too many things for you to review in the short
period of time between your designation here. But if you would
do that, we'd like to talk to you more about it, because the
legislation is going forward.
There's a great hue and cry because there's a great feeling
far and wide that it is unfairly used. We recognize the
seriousness of corporate crime. We know the impact. We see
what's happening with Enron and other companies. We're
concerned that the aiders and abetters may be held responsible,
civilly at the minimum. But when a constitutional right is
involved, we'd like to see a little closer, more careful
analysis.
On the issue of the request for the resignations of the
U.S. Attorneys, we are at an impasse. I was consulted by
Attorney General Gonzales as to what he should do, and I
recommended to him early on privately, and then said it
publicly in this room, that the best course would be to make a
full disclosure as to everything that had happened and lay it
all out as to whether there was justification for the request
for those resignations.
Right now, there are some subpoenas outstanding and they
involve high-profile people, such as the White House Counsel
and Deputy White House Counsel, Ms. Meirs and Mr. Rove. We have
tried to find a way of accommodating what the President wants
to do. He undertook this issue himself in a nationally
televised news conference to say that he did not want them to
be questioned by both House's Judiciary Committees, and there's
agreement there that we don't have to do that.
We can have a few members of the Judiciary Committee from
each House, bipartisan, question them. He didn't want them
under oath. We prefer them under oath, but said, OK, no oath.
There was no penalty for a false official statement in any of
that.
He didn't want them with a transcript, and we said that's
not a good idea, we should have a transcript. I had a chance to
talk to him personally about it. The transcript is more for the
protection of the individual; you walk out of a meeting, and
there are five different views as to what was said. But we had
even agreed to forego that, at least I had.
Then they wanted the commitment that we wouldn't go any
further if we were dissatisfied, but we felt we couldn't make
that commitment without abrogating our responsibilities. If we
wanted to proceed any further, we were going to do that. And,
of course, you haven't been inside this issue. What I'd ask you
to do, is to take a close look at it and see if you can help us
resolve this impasse, at least on the transcript.
Let me ask you, did you see any problem, or isn't there a
great benefit to everybody, especially the person being
questioned, to have a transcript so there's no doubt as to what
was said?
Judge Mukasey. There is often--there is often a great
benefit to everybody from having a transcript. But I think it
has--it's true of many conversations, it's often a lot easier
to talk and to actually get facts when somebody isn't sitting
there watching every syllable they say so as to be sure not to
make a misstep.
Senator Specter. I'd like us to go off the record and cease
the transcript here, Mr. Chairman. I think we might find
something further here.
Judge Mukasey. I'm sorry. I did not mean to suggest that we
should cease the transcript.
Senator Specter. Well, you're weighing every syllable just
as you described it, Judge.
Chairman Leahy. We haven't ceased the transcript. I don't
want you to be fooled by that. I think it's probably still
going on. Besides, there are four or five cameras.
Judge Mukasey. Beg your pardon?
Chairman Leahy. A half a dozen cameras here. You can assume
every word is being followed.
Senator Specter. Pardon my interruption, Judge Mukasey, but
you were just describing yourself. I couldn't help but note
that we might find out more from you if we stopped the
transcript.
Judge Mukasey. I think what you found out from me is
everything that's there.
Senator Specter. Well, if you have doubts about a
transcript, I'd ask you to take a look at it.
Chairman Leahy. We'll come back to that.
Senator Specter. I'm trying to move these hearings as fast
as I can. I gave you a letter when I saw you recently, Judge
Mukasey, about oversight. This is a very sticky issue. I've
made it a practice to give a letter, as I did to Attorney
General Gonzales, to the Deputy Attorney General, and to others
on the essential question of the breadth of congressional
oversight, and it was summarized, as I pointed out to you, by
the Congressional Research Service analysis, which essentially
says that DOJ has been consistently obliged to submit to
congressional oversight, regardless of whether litigation is
pending, so that Congress is not delayed unduly in
investigating malfeasance or maladministration at DOJ or
elsewhere.
And it includes, as the memo from Congressional Research
Service says, ``testimony of subordinate DOJ employees, such as
line attorneys and FBI agents. Investigating committees were
provided with documents respecting open or closed cases that
include prosecutorial memoranda, FBI investigative reports,
summaries of FBI interviews, memoranda of respondents prepared
during the pendency of cases.''
Would you agree that that's an accurate statement of the
legitimate scope of congressional oversight?
Judge Mukasey. I have no way to dispute the accuracy of the
history that's set out there. There have been instances in
which each of those categories of information has been
produced. As I sit here, it seems apparent that there are also
instances when the pendency of a case on some other issue, or
some issue of privilege, if there is one, is going to result in
hesitancy to produce the kind of information that you read off.
I think it needs to be approached very carefully on a case-by-
case basis.
I've said in the past, and I am now having a hard time
distinguishing between the private meetings and this session,
that I don't think that oversight is a zero-sum game in which
everything that gets disclosed is somehow a loss for the
Department, and everything that doesn't get disclosed is
somehow a gain. You have a very broad oversight authority and
it's something that benefits not only the process, but the
Department as well, because it assures that it keeps a high
level of performance.
I recognize that and that's why disputes in the past, to
the extent that there have been any, historically, have been
worked out. Going to extremes has been, as I understand it,
very much the exception. I hope it will remain very much the
exception. I hope there won't be any.
Senator Specter. Well, is there some exception--is what
you're saying is that you agree with what I read as a
generalization?
Judge Mukasey. I agree what you read has happened in the
optimum case, yes.
Senator Specter. What is the ``optimum case'' ?
Judge Mukasey. The optimum case is the case in which the
kind of information that you mentioned can be disclosed without
any adverse impact on pending litigation, on privilege, on the
ability of the Department to function.
Senator Specter. If the sole determiner of adverse impact
is the government, we don't get very far.
Judge Mukasey. That's not the sole determinant. That's why
I said this is something that's always been worked out, or
almost always has been worked out, in discussions between the
Department and the committee, and people on the staff.
Senator Specter. So that's a fair generalization to be
worked out on a good-faith basis between Congress, say, and the
Department of Justice?
Judge Mukasey. It is. It is.
Senator Specter. Did you say it is?
Judge Mukasey. I did, yes.
Senator Specter. I'm almost finished. Just a couple more
questions.
Judge Mukasey, the Combat Status Review Board was a subject
of an inquiry yesterday, and it's a very long subject and I'm
not going to take up the time to do it now. Instead, I'm going
to ask you to review it. I'm going to ask you to review the
case I called to your attention under the caption of in re:
Guantanamo case, which recited a proceeding before the Combat
Status Review Board where a detainee was charged with
associating with Al Qaeda people.
As for the name, nobody could give it to them. As the
report says, ``there was laughter in the courtroom, the
proceeding was so ludicrous.'' I would ask you to take a look
at the statement of Lieutenant Colonel Steven Abraham,
describing what goes on in the Combat Status Review Board from
a person on the inside, who shortly after this received a lot
of notoriety when the Supreme Court granted the petition for
re-arguing the case now pending. I think, in anticipation of
that oral argument, the government has now come up with another
procedure which has not been fully explained.
It is true that you can have a substitute, under Swain,
that it has to be an adequate substitute. The Swain case dealt
with habeus corpus in the District of Columbia, the equivalent
of a State court, with the only difference being the tenure of
the judge, very close to Federal court habeus corpus. I'd like
you to take a look at that.
And the final question I have for you is on the question of
the government notifying people under investigation that it's
over whenever it is over. I've heard a lot of complaints of
people who are under investigation that the matter goes on
forever and they never know whether they are or are not, and
there's a great deal of apprehension, understandably, of people
under investigation.
We are advised that some U.S. Attorney's Offices tell the
person when the investigation is over, if they really know it's
over. There, I'd like you to take a look at that again to see
what the uniform policy could be handed down. Do you think, as
a general matter, that fair play--wouldn't you agree that fair
play would be best served by telling people when it's over, if
it is over?
Judge Mukasey. If it's over, I agree that it's desirable
for people to know that it's over. There are a myriad of cases
where it's frequently uncertain. In different kinds of cases,
in organized crime cases and so on, it's, regrettably, hardly
ever. I agree to take a look at it. That, I will agree to. Yes.
Senator Specter. Well, I would agree with you that if it's
not clear that it's over, they aren't entitled to be notified.
I would hope that there would be a policy that they would be.
Judge Mukasey. It's also, in part, a difficulty because it
can hurt somebody more when there's a policy to notify somebody
that an investigation is over, and for some reason it can't be
done in a particular case for a person not to be notified, than
if there were not a policy of doing that. It's kind of--in a
way, it's kind of a two-edged sword. It is difficult. I would
like--you'd have to be--
Senator Specter. Well, if you'd take a look at that again,
like so many other matters.
Judge Mukasey, you have been a very impressive witness,
very impressive credentials coming to this nomination, very
impressive, your testimony here. And unless the witnesses who
are here today who were called in support of your nomination
change their minds and give highly damaging testimony, I think
you are virtually certain to be confirmed.
We're glad to see the appointment, glad to see somebody who
is strong, who has a strong record, take over this Department.
The Chairman and I, and all the members of the committee, and
probably many in the Senate, will have a lot of contacts with
you. We look forward to being helpful to you and we look
forward to cooperative efforts on many very important problems
which face the Department of Justice in this country.
Judge Mukasey. Thank you very much.
Senator Specter. Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Specter.
I would note, as I said earlier today, you've been
extremely careful in your answers. I have a problem because
some see you to be backing off from yesterday. But I will say
this, that I much prefer, at least, a careful answer to 75 or
80 times of ``I don't know the answer'' or ``I can't answer
that'', which we used to have from your predecessor.
I mentioned Jack Goldsmith in my opening remarks. He was
the former head of the Office of Legal Counsel. His book,
``Terror Presidency'', which I understand you've read--you can
see how well annotated it is here--PBS program ``Frontline''
this week had an extraordinary program. It had a Pulitzer
Prize-winning reporter from The Boston Globe, Charlie Savage.
He wrote ``Takeover: The Return of the Imperial Presidency and
the Subversion of the American Democracy''.
I know some of the people written--goes across the
political spectrum, but all of these reports conclude the
Office of Legal Counsel has been changed from the traditional
place it has had in administrations, where you just go to get a
clear-cut legal definition.
Instead, it's been the place where the administration has
gone--a lot times they find under the law they can't do
something, they go there and it's kind of like, you put in and
ask for your customized legal opinion so they can go ahead and
do it. For example, on the opinions on torture, Professor
Goldsmith wrote, ``It, in effect, gave interrogators a blank
check,'' and he said ``the opinions read like a bad defense
counsel's brief.''
You testified yesterday that, as Attorney General, you
would review the legal opinions in the Office of Legal Counsel.
Can you add to the list of opinions that you're going to review
those on executive privilege?
Judge Mukasey. I will.
Chairman Leahy. And those on immunity of executive
officials from congressional testimony?
Judge Mukasey. I will.
Chairman Leahy. And if you disagree with them, will you
change them?
Judge Mukasey. I will do that.
Chairman Leahy. And I will go by that assumption that, if
you don't change them, you agree with them. Would that be a
fair assumption?
Judge Mukasey. That will be a fair assumption.
Chairman Leahy. Thank you.
Would you agree that the office has to have independence?
Judge Mukasey. The office has to adhere to one standard and
one standard only, and that is what the law requires.
Chairman Leahy. I would hope that you would try to get it
back to that. I have been here six administrations, Republicans
and Democrats, and they've always appeared to have independence
in the Office of Legal Counsel before now. I don't believe, for
example, that a President can step outside the law on issues of
torture or wire tapping.
So I hope that the hearings turn out to be a step on the
road to restoring the Department of Justice. It needs it
desperately. I have talked to you privately about the fact that
I hope that you would put back a Department of Justice that
could be in good hands for whoever your successor might be as
the 82nd Attorney General.
That might be in a year, it might be in several years; I
have no way of knowing. I have no way of knowing whether we're
going to have a President in my party or a President in your
party. I think we can both agree that no matter what party you
belong to, you need a strong, independent Attorney General in
the Department of Justice.
Now, I think we face the most serious threat to the
effectiveness and professionalism in the Department of Justice
since Watergate and the Saturday Night Massacre. After
President Nixon became the only American President to resign
from office, President Ford appointed Edward Levy and former
Judge Harold Tyler, somebody both you and I admire, to begin
the process of restoring the Department of Justice.
It is too important an institution in our country to remain
dysfunctional. I might say as a personal--just as the Senator
from Vermont, I hope that Judge Mukasey, like Judge Harold
Tyler, with whom you worked, will begin to restore the
Department's integrity.
You've testified that the Department must stand for the
rule of law. I agree. But I also add this mandate: it must
stand for justice. Nothing is more fundamental to our
constitutional democracy than the precept that nobody is above
the law, neither you, nor I, nor a President. I believe this
administration has undercut that precept time and time again.
The President commutation--and I realize he has the power
to do this--of the sentence given to Scooter Libby, former
Chief of Staff to the Vice President, who was convicted after a
jury trial of lying to the FBI and to a grand jury, and
obstructing justice. He commuted the sentence, even before the
appeal was heard.
We see them promoting immunity over accountability, and
certainly secrecy over congressional oversight, with unilateral
power over the checks and balances that define this Nation.
Actually, I might say those checks and balances not only define
the Nation, they have protected your liberties and mine for
over two centuries.
I don't believe the President is above the law, even though
many in the administration seem to feel he is. The view that he
may override the laws he chooses is as extreme a view of
Executive power as I've witnessed, and he's dead wrong. I think
it's extremely dangerous to our democracy. The cost to our
American liberty, our standing in the world, the security of
our soldiers and citizens, can be staggering if we allow the
President to be above the law, even more staggering than the
trillion-dollar cost of the war in Iraq.
I think when the administration compounds this lawlessness
by cloaking its policy and its miscalculations under a veil of
secrecy, it leaves the Congress and the American people in the
dark about what it's doing. I have not known any
administration, Republican or Democratic, who hasn't been
helped in the long run by having real, searching oversight and
having to admit, publicly, mistakes.
You and I have had some time to talk, we've had private
meetings, and we've had open meetings here. I have been here
for virtually all your testimony and listened to it. I do worry
that there's been a retreat today from the clearer statements
of the rule of law and the President not being above the law
made yesterday. It's why I will followup with some very
specific letters.
If you have questions about what I have, just call me and
we'll sit down and go over them. I don't want to see you
appearing to posit a system where a President's over-broad and
invalid claims of executive privilege can't be tested. So,
we'll continue to meet on that, and I know that Senator Specter
and the others will want to.
The Attorney General has to uphold the Constitution and the
law. He can't bend the law to fit whoever the President is. I
will say that no matter who the President might be. You can't
define torture down in secret in fundamental conflict with
American values and law.
I agree with what you said in your opening staetment, which
I thought was very good. You spoke of protecting civil
liberties and people's confidence with those liberties, and
protecting them as a part of protecting national security. I
agree with that, and also add they are a fundamental American
strength, American value, one of the things I'm sure that
appealed to your father when he came to this country; it
certainly did to my grandparents, my great grandparents when
they came to this country.
So the hearing is going to be the start of a new chapter:
American laws and our values are no longer undercut and secret.
You know, the question in this hearing is not whether you'll be
confirmed. The real test is going to be what kind of an
Attorney General you will be. That's the test. That is also a
legacy you will leave to your family, to--I hate to call your
children; you are far beyond that--but I've been very, very
impressed with both your son and daughter. Certainly it's a
legacy that you and your wife can cherish, and it's one that
you want--you want to be able to leave this office, as we all
do in ours, with your head high.
The oversight process, and the Attorney General's
cooperation with that process, can forge a working partnership.
To paraphrase Ronald Reagan, a confirmation by the Senate is an
act of trust. Oversight helps us verify. This Committee, and
all parties, are ready and willing to work with you. I think
we've already begun.
Judge, I don't mean to take the last word here. If you want
to add something to that before we go to the next panel, please
feel free.
Judge Mukasey. I couldn't add in any way that would improve
it. The only thing I can tell you is, if you ultimately do
repose trust in me, I'll spend the next however many months it
is trying to vindicate that trust. I am grateful to you for
this. Thank you.
Chairman Leahy. Well, you have your family, my family, and
you have 300 other million Americans who need you to do that.
Thank you.
We'll stand in recess for 5 minutes.
Senator Cardin. Mr. Chairman?
Chairman Leahy. Yes?
Senator Cardin. It's my understanding that there is now
scheduled votes on the floor starting at 2:30, and there are
four votes that are scheduled, so it may be better for us to
recess until about 3:45 and start the next panel so we don't
conflict.
Chairman Leahy. Recess until the call of the chair. Thank
you.
Thank you, Judge.
[Whereupon, at 2:30 p.m. the hearing was recessed.]
AFTER RECESS [3:47 p.m.]
Senator Cardin. [Presiding]. The Judiciary Committee will
come back to order on the confirmation hearings of Judge
Mukasey for Attorney General of the United States.
I want to welcome the panel of outside experts. We thank
you very much for your cooperation and being here today. It's
very important that the record, in regards to the confirmation
of an Attorney General, that there be opportunity for witnesses
that know the nominee or could add to the consideration of the
committee, have an opportunity to give that testimony. And we
thank you all for agreeing to be here today and to be witnesses
at this hearing.
As is the tradition of the Judiciary Committee, I'm going
to ask you all to rise in order to take an oath.
[Whereupon, the witnesses were duly sworn.]
Senator Cardin. We will start with Mr. Thornburgh. Mr.
Thornburgh has served as Governor of Pennsylvania, Attorney
General of the United States for two Presidents, and was the
highest ranking American at the United Nations.
Elected Governor of Pennsylvania in 1978 and reelected in
1982, Governor Thornburgh was the first Republican ever to
serve two consecutive terms in that office.
Governor Thornburgh served 3 years as Attorney General of
the United States in the cabinets of Presidents Ronald Reagan
and George H.W. Bush. During his service as Undersecretary
General at the United Nations, Governor Thornburgh was in
charge of personnel, budget and finance matters. He also served
as a consultant to the United Nations and the World Bank on
efforts to battle fraud and corruption.
Governor Thornburgh received his bachelor's degree from
Yale University and his law degree from the University of
Pittsburgh, which is where I graduated from undergraduate
school.
Governor Thornburgh, it's a pleasure to have you here.
STATEMENT OF DICK THORNBURGH, FORMER GOVERNOR OF PENNSYLVANIA,
OF COUNSEL, K&L GATES, WASHINGTON, DC
Governor Thornburgh. Thank you, Senator Cardin. It is an
honor to appear before the committee today and offer my views
on the Department of Justice at this important juncture in its
history and to tell you why I support President Bush's
nomination of Michael Mukasey to be the 81st Attorney General
of the United States.
The current situation at the Justice Department is, in some
ways, similar to one that I encountered when I became the 76th
Attorney General in August 1988.
Two senior Justice Department officials, the Deputy
Attorney General, Arnold Burns, and the Assistant Attorney
General in charge of the Criminal Division, William Weld, had
resigned their positions earlier that year because of their
concerns about the ability of my friend and then Attorney
General Ed Meese to lead the department while he was under
investigation by an independent counsel.
These resignations reflected some degree of turmoil within
the department. Although the independent counsel did not seek
to prosecute Attorney General Meese, his report, which was
issued in July 1988, was sufficiently critical that Ed Meese
chose to resign from office early in August 1988.
After confirmation, I was sworn into office shortly
thereafter.
I considered it to be a unique honor and privilege to
return to the Department of Justice, a great institution that I
loved and still love. I had previously served as the United
States Attorney for the Western District of Pennsylvania and
the Assistant Attorney General in charge of the Criminal
Division under President Ford during the immediate post-
Watergate era.
Those experiences heightened the most profound respect I
held for the Department for its critically important and unique
role in our Federal Government and for the legal abilities,
professionalism and integrity of the career civil servants who
carry out its vital missions.
Early in my service as Attorney General, I established a
majority priority, the restoring of morale within the
Department of Justice in the wake of the recent turmoil at its
very top ranks.
With the indispensable assistance of that distinguished
cadre of career employees to whom I referred, I believe that we
were able to do so and to lead the department in the successful
execution of its law enforcement functions and its vitally
important role in the administration of justice.
Today, the Department of Justice is enduring another
unfortunate period of turmoil at the top. There is no confirmed
Attorney General, no confirmed Deputy Attorney General, and no
confirmed Associate Attorney General.
There are no less than six vacancies among the Assistant
Attorneys General and more than 20 vacancies among the United
States Attorneys.
Although I strongly commend the job that acting Attorney
General Peter Keisler and the Solicitor General, Paul Clement,
are doing under difficult circumstances, the Department simply
cannot function at the very highest level of efficiency and
effectiveness with so many major vacancies in its top
leadership corps.
Let me comment in particular on the importance of the
Justice Department's enforcement of our Nation's criminal laws.
The prosecutorial function is the unique responsibility of
the Department of Justice within our Federal Government.
Although I am not passing judgment on the recent controversy
over the dismissal of certain United States Attorneys, I will
say that it is absolutely essential that the unique
prosecutorial function of the Department of Justice be carried
out in a strictly nonpartisan, unquestionably fair and
evenhanded manner, both in fact and I appearance.
In other words, Federal prosecutors must follow the
evidence where it leads without fear or favor. Nothing could be
more important.
The Department of Justice simply must retain its unique
degree of independence, because the Department alone, among the
agencies of the Federal Government, has the power of criminal
prosecution.
You will hear from a distinguished former United States
Attorney, Mary Jo White, and an equally distinguished former
district court colleague of Judge Mukasey's, Judge John Martin,
to testify about the personal qualifications of Judge Mukasey
to be our Attorney General.
While I have only recently met Judge Mukasey, I, like many
others, admire his record. He spent 4 years as a career Federal
prosecutor in a very important U.S. Attorney's office, that of
the Southern District of New York. It is a testament to his
record of accomplishment in that role that President Ronald
Reagan nominated and, by and with the advice and consent of
this body, appointed Michael Mukasey to be a judge of the
United States District Court for that same district.
In his 18 years on the Federal bench, Judge Mukasey served
with distinction, earning, in particular, a well deserved
reputation for the manner in which he conducted the proceedings
of his trial court in major cases of importance to the national
security of the United States.
Just as the role of Federal prosecutor is a unique,
independent and nonpartisan one, so the job of a United States
district judge is one that must be conducted in exactly the
same manner. Judge Mukasey has a strong reputation for having
done precisely that.
At this critically important time for the Department of
Justice, in Judge Mukasey, the salient qualities of the person
and the critical needs of the moment are well matched. There is
no question, in my mind, that Michael Mukasey is the right
person at this time to fill the supremely important, singularly
unique role of chief law enforcement officer of the United
States.
In closing, let me recall one of the most moving and
memorable experiences of my service as Attorney General. It was
in 1989, when it was my privilege to lead the Department of
Justice during the celebration of the 200th anniversary of the
creation of the Office of the Attorney General of the United
States.
Nearly all of the living Attorneys General, stretching all
the way back to President Eisenhower's first Attorney General,
Herbert Brownell, returned to the Department of Justice for an
historic commemoration of that milestone. We were also honored
to have Ethel Kennedy, the widow of the 64th Attorney General,
Robert F. Kennedy, in whose honor the main Justice Department
building is now appropriately named.
The group included distinguished Attorneys General
appointed by presidents of both parties, including such giants
as William Rogers, Nicholas Katzenbach, Elliot Richardson,
Edward Levi, and Griffin Bell.
I am confident that when Michael Mukasey takes office as
our Nation's 81st Attorney General, the Department of Justice
can and will embark on a time of healing, renewal and exemplary
leadership. I am equally confident that, ultimately, when he
leaves office, Judge Mukasey will have earned his own place
among the top ranks of our Nation's finest Attorneys General.
Let me add, before I close, that I would like to associate
myself with the views of Senator Specter, expressed this
morning in the Wall Street Journal, calling for Judge Mukasey,
if confirmed, to end the Department of Justice's assault on the
attorney-client privilege in corporate investigations, which
began in the Clinton administration and has been carried
forward in this administration.
A broad coalition, which reaches from the Chamber of
Commerce and the National Association of Manufacturers, on the
one end, to the American Bar Association and the American Civil
Liberties Union, supports action to restore and reinvigorate
this historic privilege, and I hope that Judge Mukasey sees fit
to give it his attention.
Thank you, Mr. Chairman. I would be pleased to answer any
questions that you may have for me.
Senator Cardin. Thank you very much for your testimony.
[The prepared statement of Governor Thornburgh appears as a
submission for the record.]
Senator Cardin. We'll now hear from Mr. Chuck Canterbury.
President Canterbury joined the Fraternal Order of Police in
1984, when he, along with 11 other officers, chartered their
local lodge. He served as a local lodge president for 13 years,
during which time he was instrumental in starting the Lodge
Legal Defense Plan, purchasing the first lodge building and
starting the lodge insurance program.
He began his service on the Grand Lodge Executive Board in
1995, when he was elected to the first of three terms as second
vice president. During this time, he has worked to expand the
police labor movement in the areas of our country which do not
have collective bargaining rights.
President Canterbury retired in January 2004 from the Horry
County Police Department in Conway, South Carolina, where he
most recently had oversight of the operations bureau.
During his 25-year career as a police officer, he worked in
the patrol division, the criminal investigation division, and
served as the training division supervisor, during which he was
certified as an instructor in basic law enforcement, firearms,
chemical weapons, and pursuit driving. He earned his bachelor
of arts degree from Coastal Carolina University.
It's a pleasure to have you here, Mr. Canterbury.
STATEMENT OF CHUCK CANTERBURY, NATIONAL PRESIDENT, FRATERNAL
ORDER OF POLICE, WASHINGTON, DC
Mr. Canterbury. Thank you, Senator. First of all, I'd like
to thank the Judiciary Committee for allowing the Fraternal
Order of Police, the largest police labor organization in the
country, to have input on such an esteemed position, which has
much responsibility in the area that I've spent my entire
career.
As the Nation's top law enforcement officer, we feel it's
important, as the Nation's largest law enforcement
organization, to be allowed this input. We're very pleased and
I'd like to personally thank Senator Leahy for the invitation.
As many of you know, we consider Senator Leahy to be a
stalwart for law enforcement and the rank-and-file officers in
this country, and we're very appreciative of his support and
his request for us to be here today.
In the matter of Judge Mukasey, he has a long and
distinguished career in public service, which began with him
becoming an Assistant United States Attorney in the Southern
District of New York. In 1987, he was nominated for the Federal
bench in that same district and was unanimously confirmed by
the Senate, and he has spent the last 20 years as a Federal
judge, including his last six as chief justice in one of the
toughest, busiest and most prominent of our Nation's Federal
courts.
During this tenure, he oversaw some of the most important
and complicated national security cases, including the
successful prosecution of Omar Abdel Rahman, the blind sheik
who plotted to destroy the World Trade Center in 1993. His
handling of this case earned him widespread acclaim and respect
from his peers and the nation's law enforcement community.
In fact, the U.S. Court of Appeals for the Second Circuit
specifically praised him, noting he demonstrated
``extraordinary skill and patience'' during that case and
superbly handled challenges far beyond those normally endured
by a trial judge.
Judge Mukasey has issued the first ruling in the legal
challenge brought by Jose Padilla, and it was a very thoughtful
and well reasoned decision. He ruled that the President does,
in fact, have the legal authority to detain as enemy combatants
citizens captured during a time of war, but, yet, he also ruled
that those citizens should have monitored access to an
attorney.
His deft handling of the issues in the Rahman and Padilla
cases and the challenges he faced as the presiding judge in
these cases prompted him to write an article in the Wall Street
Journal, which argues that current statutes and institutions
which comprise the U.S. legal system are ill suited to handle
the prosecution of terror suspects without compromising
homeland security or foreign intelligence sources.
Clearly, in this decision, he has given a great deal of
consideration to the challenges faced by our legal system and
our law enforcement community when it comes to threats from
terrorists.
In the opinion of the Fraternal Order of Police, this
strongly recommends Judge Mukasey for the position of U.S.
Attorney General, as well as having him there when we're facing
the challenges that we are currently on the war on terrorism.
The FOP has had the honor of representing rank-and-file law
enforcement officers in many localities and States and we are
the bargaining unit for over 300,000 officers in this country.
And for this reason, our interest in the cases that Judge
Mukasey had been involved in over his career have not been
limited to just his high profile cases related to national
security.
We are extremely satisfied with his record on the matters
in criminal law that involve most of our membership and the
labor organizations that we represent. We are also keenly
interested in those cases which he has had to make rulings
which touch the rights of employees, particularly public
employees, and we are pleased to report to this committee that
he demonstrated just as much skill and evenhandedness in those
cases that we were able to examine as he did in the cases that
generated nightly headlines.
His distinguished career has earned him the respect of the
law enforcement community and we are very much in favor of his
appointment and his confirmation by the U.S. Senate.
And we would be glad to answer any questions for you, Mr.
Chairman, or any member of the committee.
Senator Cardin. Mr. Canterbury, thank you very much for
your testimony.
[The prepared statement of Mr. Canterbury appears as a
submission for the record.]
Senator Cardin. We'll now hear from Admiral John Hutson.
Admiral Hutson attended Michigan State University, where he
received his BA. Upon graduation, he was commissioned in the
United States Navy. He then went on to graduate from the
University of Minnesota Law School in 1972.
In 1973, he was assigned to the Law Center at Corpus
Christi, Texas, where he served as chief defense counsel and
chief trial counsel.
In 1980, Admiral Hutson attended Georgetown University Law
Center, where he earned a master's of law degree in labor law.
He was then assigned as legislative counsel in the first of
three tours in the Office of Legislative Affairs for the Navy.
Admiral Hutson assumed duty as executive officer of the
Naval Legal Services Office in Newport, Rhode Island in 1987.
In 1989, he returned to Washington, DC to serve as a staff
judge advocate and executive assistant to the Commander-Naval
Investigative Command.
In August 1989, Admiral Hutson moved to the Office of
Legislative Affairs as Director of Legislation. Between October
1992 and November 1993, he was assigned as the executive
assistant to the judge advocate general of the Navy and, in
November 1993, he resumed duty in the Office of Legislative
Affairs.
In August 1994, he assumed duty as Commanding Officer-Naval
Legal Services Office, Europe and Southwest Asia, located in
Naples, Italy. In July 1996, Admiral Hutson returned to the
Naval Justice School as commanding officer. He was promoted to
the rank or rear admiral and assumed duties as the judge
advocate general of the Navy in May 1997.
Admiral Hutson was awarded the Distinguished Service Medal,
the Legion of Merit, with three gold stars, the Meritorious
Service Medal, with two gold stars, Navy Commendation Medal,
and Navy Achievement Medal.
It's certainly an honor to have Admiral Hutson with us
today.
STATEMENT OF REAR ADMIRAL JOHN D. HUTSON, JAGC, USN (RET.),
PRESIDENT AND DEAN, FRANKLIN PIERCE LAW CENTER, CONCORD, NEW
HAMPSHIRE
Admiral Hutson. Thank you, Senator Cardin. I probably
should have sent a shorter bio in to the committee.
Senator Cardin. It was very impressive. You deserve the
entire introduction.
Admiral Hutson. Thank you. And thank you to the committee
for inviting me. I have a written statement that I'd request be
made a part of the record.
Senator Cardin. Your entire statement will be made part of
the record, as will all of the witnesses' entire statements be
made part of our record.
[The prepared statement of Admiral Hutson appears as a
submission for the record.]
Admiral Hutson. Thank you, Senator. I testified a few years
ago in opposition to the nomination or confirmation of the
former Attorney General, along with my good friends, Harold
Cole at Yale and Doug Johnson at the Center for Victims of
Torture.
Unfortunately, our concerns at that time turned out to be
prescient. I'm not here today to testify in opposition at all
to the confirmation, but, rather, to simply highlight some of
the concerns that I have and what I believe to be important
areas of consideration. And I'd like, first of all, I guess, to
make two points, which may perhaps seem to be unrelated, but,
in fact, are very much related.
One is a point that virtually all the witnesses have made
and it can't be gainsaid, which is that the United States is a
country of laws. We adhere to the rule of law, or we should try
to, and that there's no one more important in that regard than
the Attorney General of the United States.
The second point that I think is related to that is that
most of the great nations in history that have failed have
failed as a result of foreign and domestic misadventure. Our
adventure right now, foreign and domestic, is the so-called
global war on terror, which I think is actually three different
wars.
But in that struggle, the enemy cannot defeat us
militarily. They don't have the lift, they don't have the
command, control, communications. They don't have the weapons
systems. They can't defeat us militarily.
Winning for the enemy is to cause us to change, to bring us
down to his level, to cause us to be something different than
what we have been. Our great strength is support of human
rights and the rule of law.
Thomas Paine said that ``The cause of America is the cause
of all mankind.'' The great, more recent geopolitical
commentator, Bono, said that ``America isn't just a country,
it's an idea.''
We are engaged in an asymmetric war. In an asymmetric war,
the strategy is to pit your strength against the enemy's
weakness, unlike World War II, for example, where it was often
strength against strength.
Our great strength is our ideals. Thomas Paine and Bono had
it right. The enemy is abjectly devoid of ideals. So the enemy
can't defeat us, certainly can't defeat us militarily, but we
can commit national suicide by disarming ourselves of our
ideals, and there are lots of unfortunate examples of how we
have started down that road.
The Bybee torture memo, the Gonzales memo with regard to
the Geneva Conventions, suspension of habeas corpus, combatant
status review tribunals, Guantanamo and indefinite detention,
lots and lots and lots of examples of torture. We can all say
that the United States doesn't torture, but all you've got to
do is read the newspapers and you see lots of examples of it.
And, more recently, the CIA authorized enhanced
interrogation, a lovely euphemism, justified by secret memos,
legal opinions from the Department of Justice.
Let me give you some examples of where that road is not.
Going back to 1950, the United States--this is the armed forces
officer--the United States abides by the laws of war. Its armed
forces and their dealing with all peoples are expected to
comply with the law of war, in spirit and letter. Wanton
killing, torture, cruelty or the working of unusual and
unnecessary hardship.
We all talk about torture. Back then, they were talking
about the working of unusual, unnecessary hardship on enemy
prisoners or populations is not justified under any
circumstances.
Article 93 of the Uniform Code of Military Justice, Cruelty
and Maltreatment. Any person subject to this code is guilty of
cruelty toward or oppression or maltreatment of any person,
subject to his orders, shall be ordered punished, as a court-
martial may direct.
Common Article 3 of the Geneva Conventions, the following
acts are and shall remain prohibited at any time and any place
whatsoever, including, among others, outrages upon personal
dignity, in particular, humiliating and degrading treatment.
The Supreme Court never said part of Common Article 3
applies. The Supreme Court said Common Article 3 applies. That
includes outrages on personal dignity.
We don't need a measured repudiation of those definitions
of torture as being mistakes or unnecessary. We need a clarion
call. We need a ringing, unequivocal repudiation of those
definitions, of what has happened, that is so strong that it
brings tears to your eyes and makes small children wince in its
force.
We are not engaged in an existential struggle here, unless
we make it so. Only Americans can make America change. If we
falter now or cower as a Nation in the face of this adversity,
if we disarm ourselves, we don't deserve the gifts that were
given to us by those early patriots or by the world's greatest
generations.
And it's the Attorney General who, to mix metaphors, stands
at the pinnacle and will make the decision whether we're at a
pendulum or a plateau.
Thank you very much, Mr. Chairman. I welcome your
questions.
Senator Cardin. Thank you for your testimony and thank you
for your service to our country.
The next witness is Professor Dawn Johnsen. Professor
Johnsen attended Yale College, where she received her BA in
economics and political science. She graduated summa cum laude
and was a member of the phi beta kappa.
She then attended Yale Law School, where she received her
JD. After law school, Professor Johnsen clerked for the
Honorable Richard Cudahy in the U.S. Court of Appeals for the
Seventh Circuit.
A year later, she joined the American Civil Liberties Union
as a staff counsel fellow. After leaving the ACLU, she spent 5
years as legal director for NARAL.
In 1993, she joined the Department of Justice as Deputy
Assistant Attorney General and then became acting Assistant
Attorney General for the Office of Legal Counsel.
The Assistant Attorney General for the Office of Legal
Counsel is the fifth ranking Department of Justice official,
who serves as legal advisor to the President and the executive
branch, supervising about 24 lawyers and advising the counsel
to the President, the Attorney General, and the general
counsels of the various executive departments and agencies.
In 1998, Professor Johnsen became a professor of law at
Indiana University School of Law, where she teaches
constitutional law, separation of powers, and the First
Amendment.
Professor Johnsen has testified before Congress, is a
frequent speaker at national conferences, and has appeared on
many national television and radio news shows.
It's a pleasure to have you here.
STATEMENT OF DAWN JOHNSEN, PROFESSOR, INDIANA UNIVERSITY SCHOOL
OF LAW, BLOOMINGTON, INDIANA
Ms. Johnsen. Thank you. Good afternoon. I'm very glad for
this opportunity to talk with you today about the Department of
Justice.
I had the great privilege of serving there at the Office of
Legal Counsel, OLC, for short, for 5 years, including as the
Acting Assistant Attorney General heading that office and I
care deeply about its integrity.
OLC's core function is to provide the President and other
executive branch officials with the legal advice they need to
act lawfully.
The work of OLC, under the current administration, has been
dangerously compromised. Excessive secrecy makes it impossible
to fully assess the problem, but we do know that on at least
some counterterrorism matters, OLC has abandoned its
traditional role and instead has facilitated policies that do
not comply with the law.
Former head of OLC, Jack Goldsmith, who served in 2003 to
2004, wrote recently that some Bush-era OLC opinions ``were
deeply flawed, sloppily reasoned, over-broad, and incautious in
asserting extraordinary constitutional authorities on behalf of
the President.''
Goldsmith correctly notes that even a deeply flawed OLC
opinion is akin to a get-out-of-jail-free card, because it is
virtually impossible to prosecute someone who relied on an OLC
opinion.
Congress should respond to these failures by demanding
public accountability, specifically, the release of opinions,
and the restoration of OLC's tradition of independent legal
analysis.
I'd like to suggest, as a framework for that, a statement
of 10 principles to guide the Office of Legal Counsel.
A group of 19 former OLC lawyers coauthored this statement
in response to the infamous 2002 OLC torture memo, in the hopes
of helping to prevent any future recurrence of that debacle.
The principles state that they are drawn from the
longstanding practices of the Attorney General and the Office
of Legal Counsel across time and administrations.
I have submitted the entire statement of principles with my
written testimony and now would like to highlight just two of
those principles.
The first and most fundamental principle, reads: ``When
providing legal advice to guide contemplated executive branch
action, OLC should provide an accurate and honest appraisal of
applicable law, even if that advice will constrain the
administration's pursuit of desired policies.''
In short, OLC has to be prepared to tell the President no.
I want to stress that saying no does not mean disabling the
government from meeting national security threats. I deeply
appreciate the Department of Justice's critical role in
protecting our Nation from terrorism. It does mean, though,
helping the President to meet those threats and to proceed in a
lawful manner.
In the Bush administration's most controversial policies--
think about warrantless domestic surveillance, the
establishment of military commissions, coercive interrogations
to the point of torture--the critical question in all of these
matters was whether the President would act unilaterally and
largely in secret, skirting applicable legal requirements, or
whether he would comply with the constitutional process for
lawmaking by submitting his recommendations for change to
Congress. The President consistently has chosen to go it alone.
The second principle I'd like to mention, and I want to
state this most clearly and emphatically, is that the
Department of Justice must avoid secret law. And I quote from
the principle, ``OLC should publicly disclose its written legal
opinions in a timely manner, absent strong reasons for delay or
nondisclosure.''
Of course, the executive branch, at times, has legitimate
and even compelling needs for secrecy, but public explanation
is critical any time the executive branch does not fully comply
with a Federal statute or interprets a statute in a way that
would surprise Congress.
Recent reports suggest this may be the case with the recent
ban on cruel, inhuman and degrading treatment. Congress cannot
effectively monitor and regulate the government unless it knows
how the executive branch is interpreting and implementing the
laws Congress already has enacted. Congress needs those secret
OLC opinions that interpret the Detainee Treatment Act.
It pains me to see what has happened to the Department of
Justice, an institution that I greatly esteem, which is
populated by many, many fine lawyers. Congress and the next
Attorney General must confront the reality that the problem
ultimately lies not with DOJ, but with the President.
Numerous reports confirm that the President and the Vice
President and their top advisors have been deeply hostile to
any checks on their counterterrorism policies. The next
Attorney General will face great pressures and he will need
Congress's strong support to do the right thing. He should
scrutinize OLC's work, rescind flawed opinions, publicly
release many of the opinions, and restore OLC's traditional
role through publicly announced principles and procedures.
In conclusion, this committee should engage in aggressive
oversight to ensure all of this is accomplished and, beyond
this, that the executive branch complies with the laws.
Thank you.
Senator Cardin. Thank you very much for your testimony.
[The prepared statement of Ms. Johnsen appears as a
submission for the record.]
Senator Cardin. We'll now hear from Mr. Theodore Shaw. Mr.
Shaw is the Director, Counsel and President of the NAACP Legal
Defense and Education Fund. Mr. Shaw joined LDF in 1982. He
directed LDF's education docket and litigated school
desegregation, capital punishment, and other civil rights cases
throughout the country.
In 1990, he left LDF to join the faculty of the University
of Michigan Law School, where he taught constitutional law,
civil procedure, and civil rights.
In 1993, on a leave of absence from Michigan, he joined LDF
as associate director-counsel. Mr. Shaw graduated from Wesleyan
University with honors and from Columbia University School of
Law, where was the Charles Evans Hughes fellow. Upon
graduation, Mr. Shaw worked as a trial attorney in the Civil
Rights Division of the United States Department of Justice from
1979 until 1982.
He litigated civil rights cases throughout the country, at
the trial and appellate levels, and in the U.S. Supreme Court.
Mr. Shaw resigned from the Justice Department in protest of
the Reagan administration's civil rights policies. The National
Bar Association Young Lawyers Division recently presented Mr.
Shaw with the A. Leon Higginbotham, Jr. Memorial Award. He's
also received the Lawrence A. Wien Prize for Social Justice
from Columbia University.
He was awarded the Baldwin Medal, the highest honor given
by the Wesleyan University alumni body, for extraordinary
service to the university and the public interest. He served on
the Wesleyan Board of Trustees for 15 years and was senior vice
chair of the board when he retired from the board in June 2003.
Mr. Shaw, it's a pleasure to have you before our Committee
again.
STATEMENT OF THEODORE SHAW, DIRECTOR, COUNSEL & PRESIDENT,
NAACP LEGAL DEFENSE AND EDUCATION FUND
Mr. Shaw. Thank you, Senator. As you've noted, I started my
legal career with the Justice Department in the Civil Rights
Division about 28 years ago, and it was a great place to work.
It was a dream job. It was a wonderful start for a young
lawyer.
And what I was conscious of, as well as all of my
colleagues, was the great tradition of the Justice Department
and, particularly of the Civil Rights Division.
I recently attended a reunion of alumni of the Civil Rights
Division here in Washington, DC and one of the tragic things
about that reunion--the reunion, of course, itself was not
tragic, but it was tragic that not one person from the Civil
Rights Division or the Justice Department representing this
administration was present.
That said volumes about the breach that exists between
those who served at the Justice Department in the Civil Rights
Division under Republican and Democratic administrations alike
and the present leadership of the Justice Department and the
Civil Rights Division.
And I hope--I am sure that that's something that will
change. There's a lot of healing that needs to be done and a
lot of restoration within the Civil Rights Division and within
the Justice Department.
The core mission of the Civil Rights Division at its
inception was the battle against racial discrimination,
particularly as it was visited upon African-Americans. Now, of
course, the mission of the Civil Rights Division is much more
expansive than that. It represents the interests of all
Americans, indeed, all people in this country and protects them
against discrimination.
So while the Division's work has expanded, as it should
have, and it does work that involves gender discrimination,
discrimination on the basis of disability or people who are
institutionalized, we believe that there is a manifest
imbalance in the Civil Rights Division's work that has cropped
up in recent years.
The Division does relatively little work on behalf of
African-Americans. To put it bluntly, I think most African-
Americans who experience racial discrimination do not feel like
the Justice Department is a place to which they can go to take
their problems and know that their interests will be protected,
and I lament that.
While in office in the last six and a half years, the
Department has brought only five cases including allegations of
racial discrimination against African-Americans under Section
706 of Title 7.
At the same time, it's brought three so-called reverse
discrimination cases on behalf of white claimants. Now, I want
to be clear, I am not suggesting nor would I ever suggest that
white individuals cannot be discriminated against or that the
Justice Department should not protect their interests. But I
think that that fact or those facts speak something about a
policy difference that the Justice Department has adopted as
compared to prior administrations.
Similarly, it has brought only one Section 2 Voting Rights
Act case on behalf of African-Americans. That case was filed
last year.
I draw the Committee's attention, Senator, to the fact that
the Justice Department has also, through its Civil Rights
Division, abdicated its responsibilities when it comes to
voting rights. There are several now well publicized instances
in which the department has ignored the advice and analysis of
career attorneys in troubling circumstances. I understand that
lawyers who are career attorney don't run the Division or the
Department, but these decisions have been reasoned not on the
basis of law, apparently, but on politics.
In one instance when Georgia enacted voter I.D.
requirements, the Justice Department pre-cleared. That
requirement was then struck down by no less and no fewer than
five courts, three Federal court decisions and two State court
decisions.
Let me close by pointing out that perhaps nothing is more
telling than decisions, as a matter of policy, by the
Department, by the Division, not to enforce civil rights laws
using the most aggressive interpretation of the laws that the
courts and Congress have made available, and my testimony gives
several examples of this.
It is my hope that should Judge Mukasey be confirmed as
Attorney General, that the substance and the integrity of the
Justice Department and particularly of the Civil Rights
Division will be restored.
The Justice Department is the crown jewel in the executive
branch when it comes to the law and I hope that that status is
recaptured.
I must say, in closing, also, after sitting here and
listening to the very eloquent testimony of Admiral Hutson,
that I recall, after
9/11, I was interviewed and I was asked about the aftermath of
9/11 and what I said then was that my fear was that even if we
could win the war on terror, however that's defined, that we
might lose our soul as a Nation, and I think that is exactly
the threat that we are facing now, as Admiral Hutson has very
eloquently pointed out.
I want to join him. I hope that under new leadership, the
Department, again, restores itself and our Nation to where we
should be when it comes to the rule of law.
On behalf of the Legal Defense Fund, it is my earnest hope
that, if confirmed, Judge Mukasey will restore the Department
to its long and proud tradition as an institution that serves
the American people well.
Thank you.
Senator Cardin. Thank you, Mr. Shaw.
[The prepared statement of Mr. Shaw appears as a submission
for the record.]
Senator Cardin. I'm going to recognize Senator Specter.
Senator Specter. Thank you, Mr. Chairman. I just wanted to
stop by to thank you for coming in and to say that there are so
few people in attendance because people have so many
responsibilities in so many directions.
I just left the floor. We had a series of votes. I'm
ranking on the Subcommittee of Appropriations on Labor, Health,
Human Services and Education, and I have to stay on the floor.
But I've had summaries of all of your testimony and we
really do appreciate what you have to say. I heard what Mr.
Shaw said about enforcement of the Civil Rights Act, and I can
tell you that that's a major concern of the Committee and the
Senate and the House, that a great deal more needs to be done.
Reference was made to what Admiral Hutson has done on
interrogation tactics, and there's a lot of concern here on
habeas corpus and the whole range of Executive power, which
we've taken a look at.
And I know that there's a strong consensus in favor of
Judge Mukasey and we're very hopeful that he will make vast
improvements, but I think this Committee was very instrumental
in having the change made in the Department of Justice from the
oversight hearings which we held.
If you had to summarize the difference between Attorney
General Gonzales, former Attorney General Gonzales and Judge
Mukasey, it would be on habeas corpus. Attorney General
Gonzales inexplicably said habeas corpus was not a
constitutional right and Judge Mukasey said you can't have a
limitation on habeas corpus if it's not a right, the obvious
point, and I think that's illustrative of the takeoff.
So we thank you for coming in and what you have
contributed, and, again, my regrets, because I have to go back
to the floor.
Thank you, Mr. Chairman.
Senator Cardin. Thank you, Senator Specter. Appreciate your
comments.
We'll now hear from Mary Jo White. Mary Jo White was the
first woman to be a U.S. Attorney from the Southern District of
New York, serving from 1993 to 2002. When Ms. White left her
post as a U.S. Attorney from the Southern Division of New York
in January 2002, she was acclaimed for her nearly 9 years as a
leader of what is widely recognized as the premier U.S.
Attorney's office in the nation.
She has supervised over 200 Assistant U.S. Attorneys in
prosecuting some of the most important national and
international matters, including complex white collar and
international terrorism cases. She is noted for having overseen
prosecution of John Gotti and the terrorists responsible for
the first World Trade Center bombings in 1993.
She's a fellow of the American College of Trial Lawyers and
the International College of Trial Lawyers, a recipient of
numerous awards, and is regularly ranked as a leading lawyer by
directories that evaluate law firms.
In addition, Ms. White served as Director of the NASDAQ
Stock Exchange and on its executive, audit and policy
committees between 2002 and February 2006. She's also a member
of the Council on Foreign Affairs.
Ms. White received her bachelor's of arts degree from the
College of William and Mary and later attended Columbia
University School of Law, where she received a JD.
Currently, Ms. White is the chair of Debevoise and
Plimpton's 225-lawyer litigation department.
Ms. White, it's a pleasure to have you before us.
STATEMENT OF MARY JO WHITE, PARTNER, DEBEVOISE & PLIMPTON, LLP,
NEW YORK, NEW YORK
Ms. White. Thank you very much, Senator Cardin. It's my
privilege to speak on behalf of the nomination of Judge Michael
Mukasey. He is a man of great intellect and integrity, with an
unswerving commitment to the rule of law. He is independent,
fair minded, and has a wealth of relevant experience from his
years of service on the bench, in the private sector, and as an
Assistant United States Attorney in the Southern District of
New York.
There could not be, in my view, a stronger or better
nominee to head the Department of Justice, particularly at this
time, when the Department is in need of a strong and respected
leader, as our country faces one of the greatest challenges in
its history, to secure the Nation against the threat from Al
Qaida and related terrorist networks and to do so consistently
with the rule of law and our principles as a free and
democratic society.
I have no doubt that Judge Mukasey, if confirmed as
Attorney General, will meet that challenge on behalf of the
Department of Justice, effectively, intelligently and with
sensitivity to all of the complex issues that are inherent to
this unique challenge to which there are no easy or obvious
solutions.
I am equally confident that Judge Mukasey will be a superb
leader of the Department in carrying out its many other
important responsibilities and priorities that are vital to the
rights, safety and well-being of the American people.
The way I know Judge Mukasey is that when I served as U.S.
Attorney in the Southern District of New York from 1993 to
2002, I had the privilege of observing him directly and through
the eyes of my 200 Assistant United States Attorneys, and saw
him supervise or preside over numerous cases with skill, with
dignity and with absolute fairness and evenhandedness with
respect to the parties before him.
As a judge, he embodied all of those qualities of
intelligence, temperament, preparedness and fairness that bring
high credit and honor to our American system of justice. In
each encounter I have had with Judge Mukasey, I have come away
with deep admiration for him as a person, as a lawyer, and as a
public servant.
I, thus, join with the many others who strongly support his
nomination, including representatives of the defense bar, as
well as prosecutors.
As has been mentioned by Senator Kyl, I believe, this
morning, I did, also, observe Judge Mukasey preside over one of
the most complex and difficult trials I think in our history,
and that was the terrorism trial involving the head of the Al-
Gama'a terrorist organization, Sheik Omar Abdel-Rahman and nine
of his codefendants, who were charged with an horrific plot to
blow up, in a single day, the tunnels connecting New York and
New Jersey, the George Washington Bridge, the United Nations,
and the FBI's headquarters in Manhattan.
In this day of terror trial, Judge Mukasey was called upon
to deal with and decide novel and some of the most difficult
issues ever faced by any court. He did so and he did so while
keeping his eye on the primary ball in any trial, and that is
to ensure a fair proceeding for all parties.
What Judge Mukasey learned, substantively and procedurally,
from this trial, I believe, will serve him very well as
Attorney General, as he shapes and guides the Department of
Justice's role and policies in addressing the grave threat
posed by radical Islamic terrorism.
Another daunting challenge that any Attorney General has to
do and face is to oversee and manage the over 100,000 employees
of the Department of Justice and its many programs and
component parts.
While Judge Mukasey, of course, has not been previously
called upon to manage an organization of the kind and size of
the Department of Justice, very few have, I believe he brings
to that task both the right qualities and relevant experience.
He is, first and foremost, a leader with credibility, who leads
by example and motivates by example professionals to do the
best work of which they are capable.
He is organized, efficient, works extremely hard, and has
the ability and judgment to prioritize and delegate wisely. As
chief judge of the United States District Court in New York for
6 years, Judge Mukasey was called upon to manage what is our
oldest and largest Federal court, with over 40 active and
senior judges, 15 United States magistrate judges, 11
bankruptcy judges.
The Southern District of New York has one of the busiest
and most complex dockets in the country, typically over 12,000
new filings, civil and criminal, each year.
The chief judge in the Southern District of New York is
ultimately responsible for, among other things, the budget,
security issues, personnel, infrastructure, subcommittees on
various issues affecting the court, litigants and juries,
interagency communications, and docket administration.
In addition to having responsibility for these issues,
Judge Mukasey, as chief judge, guided the Federal court in the
Southern District of New York from a paper filing system to the
electronic case filing system and put in place the first
emergency preparedness program for a Federal court.
As it happened, Judge Mukasey was, fortunately, the chief
judge of the Southern District of New York on September 11. His
leadership during this time of extreme crisis has been
accurately described by many as heroic. The Southern District
of New York's courthouses in Manhattan are located just a few
blocks from where the World Trade Center stood.
All of us working in the vicinity of the courthouse complex
on September 11 personally witnessed the horror of that day and
were required to respond to the physical and emotional issues
of our staffs and then work to try to restore normal
functioning in the aftermath of the most abnormal and jolting
experience any of us had ever encountered.
Judge Mukasey directed that the two Manhattan Federal
courthouses be closed immediately, but kept the court running
from the White Plains courthouse 30 miles north of the city. He
then reopened the Manhattan Federal courthouse on September 18,
2001, fully for business, despite badly disrupted phone
systems, computer systems, not to mention the emotional stress
of the court's employees.
But as the district executive of the southern district who
works for the chief judge observed, ``Almost everyone who
worked at the courthouse was back at their desk.'' It was very
important to come back downtown and to come back to work.
``Everyone wanted to be together, to do our best to show
that life would go on in New York.'' Well, for the Southern
District of New York, Judge Mukasey and the district executive
staff he managed made that possible.
In closing, I believe that however he is measured, Judge
Mukasey will be a superb Attorney General. He will hit the
ground running at the Department of Justice and deal
effectively with its full range of priorities and problems. He
will lead and inspire the career lawyers at the Department and
in the field, as well as the United States Attorneys.
He will remain the person he has always been, a dedicated,
hardworking public servant, with the ability and humility to do
an outstanding job, of which I'm sure we will all be proud.
Thank you very much.
Senator Cardin. Thank you very much for your testimony here
today.
[The prepared statement of Ms. White appears as a
submission for the record.]
Senator Cardin. We'll now hear from Judge John Martin.
Judge Martin, a member in Martin and Obermaier, LLC in New York
City, was a United States District Judge in the Southern
District of New York from 1990 to 2003 and worked very closely
with Judge Michael Mukasey in that capacity.
Prior to his judgeship, Judge Martin served as the United
States Attorney for the Southern Division of New York from 1980
to 1983, worked as an assistant to the Solicitor General of the
United States in Washington, DC, and worked in private
practice.
A native New Yorker, Judge Martin graduated from Manhattan
College and Columbia Law School, and clerked for the Honorable
Leonard P. Moore, United States Court of Appeals for the Second
Circuit.
Judge Martin has received awards for his outstanding
service, including the Emory Buckner Award from the Federal Bar
Counsel and the Judge Edward Weinfeld Award from the New York
County Lawyers Association.
Judge, it's a pleasure to have you before our committee.
STATEMENT OF JOHN MARTIN, MEMBER, MARTIN & OBERMAIER, LLC, NEW
YORK, NEW YORK
Judge Martin. Thank you very much, Senator Cardin. I'm
honored to be here and very pleased to have the opportunity to
express publicly my high regard and affection for the nominee
for Attorney General, the Honorable Michael B. Mukasey.
I've known Mike Mukasey for over 30 years, but I got to
know him best when we served together on the Southern District
of New York. Michael Mukasey is one of the most decent human
beings I know and I think he possesses the qualities of
intellect and humanity that we should want in a person to serve
as Attorney General of the United States.
We worked together--I was the chair of the Clerks Committee
while he was chief judge, and we worked closely together during
that time and I saw firsthand his compassion and his
leadership.
During that period, our clerk of the court died after a
long battle with cancer. No one could have been more caring
than Judge Mukasey was of the concern for our clerk. No one
could have been more compassionate in that situation.
In addition, as Mary Jo has pointed out in some detail, he
was an able leader, someone who sought advice, and who inspired
those around him to do their best.
He also had the unenviable task of trying to organize and
lead 40 United States district judges, each of whom was
appointed for life. Judge Mukasey handled that task with grace
and when he stepped down as chief judge, he left with the
respect and admiration of all his colleagues.
To some extent, no individual is qualified to be Attorney
General, but the same can be said of United States district
judge, because in both cases, you're faced with areas of the
law with which you have had no experience in private practice.
The breadth of United States law is staggering and the Attorney
General and the district judge have to deal with that.
But you learn from that how to listen to experts, to weigh
what they have to say, and to make judgments as to what is the
right thing in the situation.
In addition, and most important for someone who is to
become the Attorney General, you learn that the law is above
politics and that your personal political views have no place
in the administration of justice.
Michael Mukasey was a superb United States district judge
and I have no doubt that, if confirmed, he will be a superb
Attorney General. He possesses both the intellectual ability
and the openness of mind that will serve him well in
formulating the policies to be carried out by the attorneys in
the Department of Justice.
While I never had the pleasure of appearing before Judge
Mukasey, I have had the pleasure of reading his opinions. He
was a thoughtful and intelligent jurist.
I also have one experience with him that I think
demonstrates that he possesses one of the most important
qualities for someone who would be the Attorney General, and
that is the willingness to rethink a position. Several years
ago, I decided a case, and I forget what the issue was, but
there was only one opinion on point and it was by Judge
Mukasey, and it was a rare case in which I disagreed with him.
And I wrote an opinion and said I have great respect for
Judge Mukasey, but I disagree with him here. A year or two
later, he sent me a copy of an opinion he had just written in a
similar case, in which he referred to his prior opinion and my
opinion, and said, ``I've changed my mind. I think that the
other is the right law.''
I don't know many judges who possess both the unique
quality of self-confidence and humility that would allow them
to admit publicly that they were changing a position. But
that's, I think, the quality that you have to have if you're
going to lead something like the Department of Justice and be
faced on a daily basis with complex and difficult questions to
decide.
As you might expect, Judge Mukasey's nomination has been
the subject of considerable comment in the New York legal
community. I can tell you that the unanimous view of everybody
with whom I have spoken, friends of Judge Mukasey, former
colleagues, and, I think, particularly important, lawyers who
appeared before him, is that Michael Mukasey will provide the
type of leadership necessary to ensure that the American people
have confidence that justice is being administered fairly and
with integrity.
Thank you very much.
[The prepared statement of Mr. Martin appears as a
submission for the record.]
Senator Cardin. Thank you all very much. I very much
appreciate your testimony and I think it's extremely helpful to
our committee.
Governor Thornburgh, I want to just ask you sort of a
loaded question. If Attorney General Mukasey calls you the day
after he's sworn into office and asks advice what he should do
as some of his first measures in order to restore the type of
confidence, not only within the Department, which is in trouble
today, but public confidence in the Department of Justice, what
type of advice are you going to give him?
Governor Thornburgh. I don't think I could do much better
than the steps that he outlined in his testimony, which really
involved taking charge of the Department, and I think that
that's the important thing that has to be done, to exhibit
those qualities of leadership that I think he's fully capable
of, ensure that the present vacancies are filled expeditiously
and with people of equal caliber to his own, to visit with the
leadership of the Department personally, not just the
leadership at the top, but in the various sections and units
within the Department.
It's a massive operation and I, frankly, enjoyed, when I
was in office, the institution of kind of brownbag lunches with
the rank-and-file staff lawyers to kind of get their view of
what was going on.
So that I think his task will be really to grab the reins
of the Department, to make clear that he's in charge, and to
articulate, as often as possible, to the public, through the
media and through appearances, his core values, expressed so
eloquently during these hearings, that indicate his commitment
to the rule of law, his commitment to fairness and justice,
and, in every one of the operations that the Department carries
out, make clear that he means business when it comes to
reinvigorating the Department's very important mission.
Senator Cardin. Would you be advising him that--there's so
many vacancies in the top positions in the Attorney General,
Department of Justice. Would high on your list be to try to
influence appointments quickly at these top positions,
consistent with his priorities within the Department of
Justice?
Governor Thornburgh. I would think that has to be a
priority. I deal, from time to time, with the Department of
Justice and lately it's discouraging to find that there's
nobody home when it comes to key decisions being made.
That's the frustration of a practitioner, but I'm sure it's
also a frustration within the Department. And I think one of
his highest priorities, which I'm sure he recognizes and will
carry out, is to seek out advice and recommendations from his
long and rich career of persons who can fill those key
positions.
Obviously, that will be done in tandem with the White House
and to see that those positions are filled and that the
Department is in full running order just as quickly as
possible.
Senator Cardin. Thank you.
Admiral Hutson, I must confess that I concur completely in
your testimony. I found it well articulated and some of the
things that I think we try to say here in the Senate, but not
quite as effectively as your testimony, and I thank you for
that, because I think it added greatly to the record here.
I also believe it won't surprise anyone here to learn that
Judge Mukasey did an excellent job for our Committee as far as
the frankness of his answers, as far as assuring us of his
independence.
But there was one area that I think many of us are
concerned about and that is whether there will be an effective
voice within the Attorney General to speak out against the
United States condoning any forms of torture.
I say that because Judge Mukasey was very clear that
torture is not allowed. It's unconstitutional and against our
laws. He made it very clear, also, that he would pursue holding
accountable anyone who violates those statutes or the
Constitution, even if that person was operating under the
direction of someone in our military or in the White House.
But then he was less than clear as to circumstances in
which conduct would not fall within the prohibited areas,
including some that are pretty obviously commonly considered to
be torture.
There's also the international perception that the United
States is playing on definitions here rather than leading and
saying clearly that we won't tolerate any forms of conduct that
traditionally has fallen within torture.
So I would like to get your assessment as to how you felt.
I don't know if you listened to the testimony or not.
Admiral Hutson. Yes, I did, Senator.
Senator Cardin. I would welcome your thoughts on that.
Admiral Hutson. Thank you, Senator. The United States, as a
Nation, and the Attorney General, as an individual, has to be
absolutely unequivocal. We can't dance around definitions. We
can't dance around what is torture and what's cruel and what's
inhumane and what's degrading, as we have done.
In the past, we never had to worry about that, because were
never close to the line. We were always a long ways away from
the line. But now we want to be right up next to the line. So,
suddenly, what those definitions are becomes important.
I think that is a terrible mistake for this country,
because that same cleverness is going to come back to bite our
troops who because it's our troops who are forward deployed.
When Eisenhower and Marshall and Senator Vincent and others
looked at the Geneva Conventions, they were not looking at them
as a limitation on our behavior. They were looking at them as a
limitation on the enemy's behavior. They were there to protect
U.S. troops.
That's what we were thinking. Now, suddenly, we're looking
at ways to dance around it so that we can engage in that kind
of activity and as then Legal Counsel Gonzales said, so that we
can avoid the War Crimes Act.
My goodness, how did we get to that point? Torture is the
method of choice of the lazy, the stupid, and the pseudo-tough,
and that should not be the United States. No matter how you
define torture, it's unconstitutional, it violates statutes, it
violates the UCMJ, it violates Common Article 3, it violates
what your mother taught you, and it violates what you learned
in kindergarten, and we ought not to be even close to it.
Senator Cardin. Well, I thank you for that answer. One of
the hats I wear in the U.S. Senate is the Senate Chairman of
the Helsinki Commission, which deals with the human rights
dimensions.
And, historically, the United States has used that forum to
promote action against inhumane treatment and torture by so
many countries in our regions.
I find that I'm spending most of my time trying to answer
questions about conduct in our own country, whether it's
Guantanamo Bay and the detaining of individuals there or
whether it's the signing statements of the President on torture
or whether it is dealing with the way that we treated prisoners
in Afghanistan and Iraq.
So I agree with you, I think we've lost our standing
internationally on this issue and now that when we equivocate
on definition, it is really subject to scrutiny and concern by
the international community.
Admiral Hutson. May I make one more point, sir? Other than
perhaps rack and thumb screws, waterboarding is the most iconic
example of torture in history. It was devised, I believe, in
the Spanish Inquisition. It has been repudiated for centuries.
It's a little disconcerting to hear now that we're not
quite sure where waterboarding fits in the scheme of things. I
think we have to be very sure where it fits in the scheme of
things.
Senator Cardin. Well, I am hopeful that once Judge Mukasey
becomes more familiar--he didn't seem to be familiar with that.
I hope during the question-and-answers that will still happen
as part of the confirmation process, that we can get a clear
view from the nominee that that is clearly a prohibited
practice under not only our Constitution and our laws, but
international standards of inhumane treatment.
So I agree with you and I hope that we'll get that
clarified.
Professor Johnsen, I want to go back to a statement you
made about the release of the opinions that have been made from
the Office of Legal Counsel.
Senator Specter, I thought, was pretty articulate and
persuasive that if the U.S. Senate, if the Congress is to do
its oversight, that we have to get access to the fundamental
documents controlling activities within the executive branch.
And if there's sensitivity to some of these documents, then
we'll take it in a closed session, but that we need to have
access to what is guiding executive actions.
You were in that office. Are we being unreasonable in our
request? Will this put an unreasonable restriction on the
prerogatives of the President or the executive branch?
Ms. Johnsen. Absolutely not. The issue, of course, of
interrogation and torture, I think, is the perfect one in which
to explore this. The Office of Legal Counsel, frankly,
destroyed our Nation's reputation on the issue of torture with
that infamous 2002 opinion.
Congress responded very appropriately, in my view, with the
Detainee Treatment Act, which made clear that no torture, no
cruel, inhuman, or degrading treatment was permitted anywhere
in the world by the United States. And when the President
signed that into law, he had a reservation in the signing
statement that caused Senator McCain to call him on it.
Now, we hear that, I think, astonishingly, the Office of
Legal Counsel, if reports are correct, has issued two more
secret opinions interpreting that statute. How can Congress do
its job? How can our constitutional democracy work if the
President is interpreting statutes in ways that are flatly
inconsistent with what Congress intended and with the words of
the statute?
How can Congress oversee the executive branch or legislate
if it cannot get a straight answer from the President, from the
Department of Justice, when asked, ``How are you interpreting
cruel, inhuman, degrading? How are you interpreting torture? ''
Let us see those legal opinions and if they do contain
material, as you said, that would, in some way, jeopardize
national security, that can be submitted in confidence to the
Senate.
I actually am not happy with excessive reliance on that
option, I have to say. I think on this issue, the public needs
to know how the President is interpreting these laws,
regulating coercive interrogations. And so I would say if there
are any portions that have to be protected, kept confidential,
then a redacted version or a specially prepared version has to
be provided to the American public so that we know and the
world knows what our policy is on coercive interrogations.
Senator Cardin. Well, I agree with you on that. I think it
should be. I'm just trying to get to at least be able to
evaluate the documents and if we have to establish procedures.
I don't necessarily disagree with Senator Specter. If we
have to make accommodations in order to get this matter moving
forward, I think it's worth making accommodations so that we
don't run into a constitutional challenge that could take too
long in order to resolve.
But I agree with you. I see no reason why this information
cannot be made available to the public, if necessary, in a
redacted form. It seems to me that should be able to be
accomplished.
There was one other issue that was brought up that you may
have a view on or maybe other members of the panel, and that's
an issue about the contempt citation that Judge Mukasey talked
about.
It seems to me that if there is a challenge, that we need
certain documents, and the President believes that that is a
part of his executive privilege, there needs to be a way that
that can reach the courts. The only way that I know is for
Congress--and it's a very serious matter for us to suggest the
contempt citation and to move forward with it and get it
completed.
But at that point, it seems to me there should be little
discretion within the Department of Justice in convening the
jury, grand jury, and issuing the necessary indictments.
Am I wrong on that? I mean, Judge Mukasey seemed to be very
indefinite about whether he would--he would make an independent
judgment as to whether the individual acted reasonably. Well,
if you're in the executive branch, following what the President
says, that's acting pretty reasonably, to me, even though the
President may not be acting reasonably.
Ms. Johnsen. Right. You might remember that Judge Mukasey
actually cited an OLC opinion from the time I was there, as
well as from earlier administrations, on this point. And so it
is a very difficult matter. I think that there should be a way
to get it before a court.
Interestingly, Judge Mukasey said if the Department of
Justice has issued an opinion to the President saying it's
appropriate to assert executive privilege, then there's a very
serious problem with the Department of Justice turning around
and prosecuting somebody, and I agree with him on that.
But I think the interesting thing about that is the
Department of Justice should not have advised the President in
the first place to assert executive privilege. I think that's
where the problem is. The President has a constitutional
obligation to accommodate Congress's needs for information and,
on this particular issue, the President has not done so and I
don't think the President has received accurate legal advice
from the Department of Justice.
But that's the point at which I think the problem occurs. I
do agree with Judge Mukasey that it is difficult and I think a
due process problem to turn around and prosecute somebody for
doing what the Department of Justice said that person should do
in the first place.
The real problem, I think, is an erroneous assertion of
executive privilege in the first place and not accommodating
Congress's compelling need for information on this issue.
Senator Cardin. Again, I think that's the right analysis.
And Judge Mukasey did say that he would weigh in pretty heavily
as to whether executive privilege should be asserted or not,
and I agree with you. I don't believe that was done by the
Attorney General in the assertions that were made in regards to
the U.S. Attorney firings and other issues in which we have
subpoenaed information.
So, hopefully, the judge, as Attorney General, will be in
the beginning stages and giving advice to the President, which
I hope the President will follow, which leads to the question
as to whether Judge Mukasey has the independence and strength
to stand up to a pretty strong President, pretty strong-willed
President.
There's a lot of things you can say about our President,
but he is strong-willed.
So let me ask, Ms. White, if I could, and Jude Martin, you
know him. How do you think he's going to fare standing up to a
President who wants to do certain things that perhaps the judge
thinks are inappropriate?
Ms. White. If the circumstance presents itself, my money is
on Judge Mukasey. He's one of the most independent,
straightforward, strong individuals I know, totally principled.
So if it comes to that, plainly, he will also be clear in his
advice as to the right path, but if it comes to that, I have no
doubt whatsoever he'll stand up.
Judge Martin. I think serving as United States district
judge, you're used to getting--understanding that people have
to obey certain laws and that you've got to have the power to
enforce them, and I don't think that Mike Mukasey is going to
have any problem asserting his own views as to what's right and
wrong.
Senator Cardin. Well, I think restoring the independence of
the Department of Justice is the first order of business. With
the political interference, which has been acknowledged and
under current investigation, that's going to be the first order
of business.
The second is being able to give independent advice and
that's going to be another challenge.
Third is establishing the type of priorities and, Mr. Shaw,
I couldn't agree with you more about the disappointment with
the Civil Rights Division, on the 50th anniversary of its
creation. The number of cases that have been brought in regards
to the voting rights to remove obstacles to participation, the
disparate cases that have been brought, the few numbers in
housing and employment have all been, I think, just shocking,
in a way, that we've had a tradition, and, of course, the type
of cases that the Civil Rights Division has entered have been
on the wrong side, in my view, particularly when you look at
the historic role of the Civil Rights Division in promoting
rights for all individuals.
So I hope that you can perhaps give us some guidelines as
to what we should be looking for from the new Attorney General
as it relates to the type of cases that you would like to see
priority given to.
Mr. Shaw. Senator, let me, first, correct something I may
have said. I talked about the Georgia voter ID case. I might
have said that that was before the Supreme Court. If I did,
what I meant to say was that issue was up before the Supreme
Court, but the issue is actually presented in a case out of
Indiana.
With respect to what the new Attorney General could do,
there are a number of things. I think there needs to be, first,
at least within the Civil Rights Division, but throughout the
Department, a restoration of hiring in an apolitical way of
career attorneys. I'm not talking about the political
appointees, obviously. But I think that's vitally important to
restore the Civil Rights Division and the Department's legal
staff generally, to what they once were.
I also think that it would be a good thing for the Attorney
General and the Assistant Attorney General, whoever that might
be, of the Civil Rights Division to have some dialog with some
of the people who ran the Civil Rights Division under prior
administrations, under both parties, as well as some of the
career attorneys who have left the Department to get a sense of
perhaps how the Department could operate to restore its
credibility and integrity.
With respect to substantive issues, we find ourselves in
disagreement with the Department and in a position with the
Department as adversaries, as often, if not more often, than we
are allies. I don't expect that we're going to agree on every
case, but to take the Seattle and Louisville cases, for
example, the issue of voluntary school integration decided in
June by the Supreme Court, there, the Justice Department, for
the first time since the 1950s, since Brown, effectively came
down against school desegregation, against integration.
That is a reversal of historic proportions with respect to
the Justice Department's role, and there are other instances in
which we've been in adverse positions, where I think we ought
not to be. Of course, we each have our point of view, but the
Justice Department really has gone astray.
As I said, I think that the Department needs to revisit the
cases on behalf of African-Americans and Latinos that are out
there that they're not bringing right now, that they're
consciously not bringing.
It's not that those cases aren't there, because we're asked
to represent people in those cases all the time and we don't
have the resources that the Federal Government has. We can't
take on most of those cases. The EEOC still is overloaded with
complaints.
So the cases are there. The question is what the Justice
Department's role is going to be. So that can be turned around,
I think, fairly quickly if the lawyers are unleashed to do the
investigations that they've wanted to do, that they have done,
and if their suggestions or advice are overridden, as they will
be sometimes, I suppose, it ought to be done on the basis of a
legal analysis that has integrity and not on something that
either gives the perception or the reality of a political
decision.
Senator Cardin. And I think, quite frankly, Judge Mukasey
was comforting in his comments in that regard and, clearly, the
failure to follow the advice of career attorneys, the
reassignment of the individual who was in charge of the
election issues in the Civil Rights Division, all that was
shown, political interference, not just not following the
advice of career attorneys.
It had the imprint of a political agenda more so than a
change in a philosophical approach and Judge Mukasey, I think,
was pretty clear that he won't tolerate that type of activity.
We need to make sure, in fact, that gets translated to
those who are at the Department of Justice in critical
positions, and we welcome your review of what happens in the
Department of Justice. We thank you for your role in that
regard.
Mr. Canterbury, I want to ask you about another aspect of
the Department of Justice, which is handling the criminal
agenda. Several of the Senators asked questions about violent
crimes. You have seen Judge Mukasey as a prosecutor and as a
judge and I would like to get your assessment as to the comfort
levels that he will be balanced and fair in prosecuting
criminal activities, which is a significant part of the agenda
of the Department of Justice, or he's supervising them.
Mr. Canterbury. We represent 22,000 members in New York
State and in our conversation with Federal, State and local
officers in that judicial district, our review of cases that
the judge has reviewed, we're very pleased with that.
Also, obviously, the Attorney General also has oversight of
the FBI and ATF and other law enforcement organizations that we
deal with on a daily basis and we feel the experience that he
has will help to foster State and local cooperation.
There's been some great strides in the last eight or 10
years in local and State cooperation, but it's pretty obvious
to us, from the judge's no-nonsense approach, that that will
continue and we look forward to that.
Senator Cardin. Thank you for that. I was just checking
with our staff, because they were supposed to start a vote at
5, which they didn't start, which I'm thankful for.
I want to, last, ask one other question, which is an open-
ended question for--I'll give any of you an opportunity to
comment, if you like.
That is, trying to summarize the concerns raised during the
confirmation hearings, I think I would put them probably in
three categories. There were other issues raised, I'm not over-
simplifying it, but it's the ability of Judge Mukasey to be an
independent Attorney General; obviously, being in the Bush
cabinet, but being an independent voice on behalf of the
American people.
Second, to not tolerate at all any political activities
that would relate to the hiring or promotion or firing of
career attorneys or involved in influencing decisions on
criminal investigations in any way.
And the third would be the priorities of the Department,
whether this Department will carry out its historic role to
protect the rule of law and to protect the civil liberties of
the people in this country and move ahead on the civil rights
agenda and deal with those types of issues.
So this is somewhat of an open-ended question. If there's
anything more you would like to add to the record in regards to
those issues, I would welcome an opportunity to give you that
chance now.
Judge Martin?
Judge Martin. Let me start just with a question of the
whole political nature. Judge Mukasey hasn't come out of the
political system. He was selected by Senator D'Amato's
traditional selection committee, which was set up to be
independent and to pick people on the merits.
So he doesn't come here, I think--and I think he was
nominated for this position because of his stature in the legal
community, not because of his Republican credentials.
So I don't think he comes to this as a political figure. He
comes to this as a man of independence, a man of stature, a man
of great intellect, and I think those qualities are what he
will apply as the Attorney General.
He is not a politician, and I don't mean to use that as a
bad phrase, but he doesn't come out of that background. He
comes out of the rule of law. That's what he did as a judge.
That's what I think he will do as Attorney General.
Ms. White. Senator, also, if I may just add to that
quickly. He also comes out of the tradition of the Southern
District of New York U.S. Attorney's office, where independence
and being apolitical are--you're imbued with that from day one.
The district and the office is known not so fondly in Main
Justice as the Sovereign District of New York, but mostly I
think that's very good and I think it's very good in terms of
what it says about how he will be as Attorney General.
Governor Thornburgh. May I offer just three observations
that were reassuring to me in my reading of the record of these
hearings?
One, on the issue of independence, of course, an Attorney
General is not independent in the sense that a justice minister
in a European system might be.
But the other side of the coin in independence is a
willingness to stick by one's beliefs and principles and, if
necessary, resign when those conflicts or principles become so
intense that he can't continue, and I think he's clearly
indicated that he recognizes that.
Second, with regard to political activities, the most
reassuring thing I heard was in his introductory statement,
where he indicated that the targeting and timing--and the
timing is important sometimes--of criminal prosecutions would
be made without any consideration of the political implications
involved, and this applies largely in corruption cases or in
high profile cases.
Third, on priorities, obviously, the priorities of the
Department of Justice are set by the President, but I think in
Judge Mukasey, you clearly have someone who is willing to speak
his mind and be an advocate for priorities that he thinks are
proper and correct for the administration and his voice will be
heard.
So on each of the matters that you raised, I'm reassured by
his testimony and would expect that he would satisfy you as to
his ability to meet those concerns.
Senator Cardin. Admiral?
Admiral Hutson. Senator, if I could take a small turn on
one of your very nice lists of priorities, and that is
independence.
I think it's not only the independence of the Attorney
General, but that the Attorney General, as the chief law
enforcement officer, sets the tone for independent legal advice
down the chain of command, if you will, and all those
government attorneys need to be able to give independent
advice.
We have seen examples of where the advice of the attorneys
within the Department of Defense, the judge advocates general,
was ignored, not solicited, not respected, and we got ourselves
in a lot of trouble and it wasn't until the U.S. Senate called
hearings and the Senate Armed Services Committee called the
JAGs, asked for their personal opinions about what constituted
torture and whether the Geneva Conventions applied and so
forth, that the American public really heard their independent
views on that.
And I think that it's very important for--particularly in
light of the recent past, it's very important for Judge Mukasey
to ensure that everybody understands that the opinions of the
subordinate lawyers doesn't always have to be followed, but
they should be heard and respected.
Senator Cardin. Thank you.
Ms. Johnsen. I'd like to second everything Admiral Hutson
just said. It's very in line with what I'd like to say in my
closing comment.
That is, an independent Attorney General is necessary, but
not sufficient. We do need, as I mentioned earlier, aggressive
oversight by this Committee and just this month you had Jack
Goldsmith, former OLC head from the Bush administration, saying
the same thing, that if there had been more oversight, the Bush
administration would have made fewer mistakes and it was only
when there was oversight that there actually was deliberation
and debate within the administration.
And so I'm very encouraged by what I hear from others on
this panel and some of what I've heard today about Judge
Mukasey's independence, but that will not be enough, unless
there is the pressure from this Congress on the administration
and, again, an insistence on greater openness so that we know
what the executive branch is doing.
Senator Cardin. I thank you for that comment. I am proud of
the leadership of Senator Leahy and Senator Specter in this
Committee, which I believe has been a model of the right role
for the legislative branch, putting aside partisan differences
to make sure that the oversight function, in fact, was
effective.
As we have found out, there were very serious issues that
needed the public attention and I think led to where we are
today. So I think you're exactly right.
The framers had it right with the separation of the
branches and let's make sure we carry out our responsibilities
here in the U.S. Congress.
Mr. Shaw?
Mr. Shaw. Senator, I was sitting here thinking about my
time in the Department many years ago and I think that every
lawyer within the Department of Justice knows that the Attorney
General is a member of the cabinet and, in a sense, that's a
political position.
But there's political and there's political. I think, if I
remember correctly, what we wanted was to know that the line
would be drawn in the right place when it had to be drawn and
that our superiors would listen to our suggestions and our
analysis, even though they made the call, but they wouldn't
make it purely on political grounds.
And, also, that the Attorney General and the Assistant
Attorneys General, when need be, would be willing to go to bat
for the line attorneys and for, effectively, the rule of law
within the Department.
I think that's all one can want and ask for. I do know,
because many of us stay in contact with or work with the line
in the Department, that the esprit de corps is as low as it has
been in any time that I can remember. The Department's
attorneys are demoralized. And I think one of the most
important challenges that the next Attorney General will face
is to restore the sense of--well, of confidence on the part of
the career attorneys that they're part of something that has
integrity.
That's the sense in which I think the attorneys expect the
Attorney General to be apolitical and a political appointee
should be apolitical: that they, above all else, make their
decisions based upon an interpretation of the law that has
integrity.
Senator Cardin. Well, I thank each of you for being here. I
think you've added to the record in a way that I think is
important in the confirmation process for an Attorney General
of the United States and I found it extremely helpful, to me,
to try to put the puzzle pieces together, because we are
clearly all with the same objective and that is to see the
Department of Justice move forward in its traditional respect
from the American people and it is an important part of the
administration.
And I think that these confirmation hearings have helped us
in that regard and you all have been part of that and we thank
you very much for your presence, your testimony, and, most
importantly, for your patience as we've been trying to figure
out when this panel would, in fact, be heard.
The hearing record will remain open for one week in order
to be able to supplement the record, and the Judiciary
Committee now stands adjourned. Thank you all.
[Whereupon, at 5:20 p.m., the committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[GRAPHIC] [TIFF OMITTED] 39985.088
[GRAPHIC] [TIFF OMITTED] 39985.089
[GRAPHIC] [TIFF OMITTED] 39985.090
[GRAPHIC] [TIFF OMITTED] 39985.091
[GRAPHIC] [TIFF OMITTED] 39985.092
[GRAPHIC] [TIFF OMITTED] 39985.093
[GRAPHIC] [TIFF OMITTED] 39985.094
[GRAPHIC] [TIFF OMITTED] 39985.095
[GRAPHIC] [TIFF OMITTED] 39985.096
[GRAPHIC] [TIFF OMITTED] 39985.097
[GRAPHIC] [TIFF OMITTED] 39985.098
[GRAPHIC] [TIFF OMITTED] 39985.099
[GRAPHIC] [TIFF OMITTED] 39985.100
[GRAPHIC] [TIFF OMITTED] 39985.101
[GRAPHIC] [TIFF OMITTED] 39985.102
[GRAPHIC] [TIFF OMITTED] 39985.103
[GRAPHIC] [TIFF OMITTED] 39985.104
[GRAPHIC] [TIFF OMITTED] 39985.105
[GRAPHIC] [TIFF OMITTED] 39985.106
[GRAPHIC] [TIFF OMITTED] 39985.107
[GRAPHIC] [TIFF OMITTED] 39985.108
[GRAPHIC] [TIFF OMITTED] 39985.109
[GRAPHIC] [TIFF OMITTED] 39985.110
[GRAPHIC] [TIFF OMITTED] 39985.111
[GRAPHIC] [TIFF OMITTED] 39985.112
[GRAPHIC] [TIFF OMITTED] 39985.113
[GRAPHIC] [TIFF OMITTED] 39985.114
[GRAPHIC] [TIFF OMITTED] 39985.115
[GRAPHIC] [TIFF OMITTED] 39985.116
[GRAPHIC] [TIFF OMITTED] 39985.117
[GRAPHIC] [TIFF OMITTED] 39985.118
[GRAPHIC] [TIFF OMITTED] 39985.119
[GRAPHIC] [TIFF OMITTED] 39985.120
[GRAPHIC] [TIFF OMITTED] 39985.121
[GRAPHIC] [TIFF OMITTED] 39985.122
[GRAPHIC] [TIFF OMITTED] 39985.123
[GRAPHIC] [TIFF OMITTED] 39985.124
[GRAPHIC] [TIFF OMITTED] 39985.125
[GRAPHIC] [TIFF OMITTED] 39985.126
[GRAPHIC] [TIFF OMITTED] 39985.127
[GRAPHIC] [TIFF OMITTED] 39985.128
[GRAPHIC] [TIFF OMITTED] 39985.129
[GRAPHIC] [TIFF OMITTED] 39985.130
[GRAPHIC] [TIFF OMITTED] 39985.131
[GRAPHIC] [TIFF OMITTED] 39985.132
[GRAPHIC] [TIFF OMITTED] 39985.133
[GRAPHIC] [TIFF OMITTED] 39985.134
[GRAPHIC] [TIFF OMITTED] 39985.135
[GRAPHIC] [TIFF OMITTED] 39985.136
[GRAPHIC] [TIFF OMITTED] 39985.137
[GRAPHIC] [TIFF OMITTED] 39985.138
[GRAPHIC] [TIFF OMITTED] 39985.139
[GRAPHIC] [TIFF OMITTED] 39985.140
[GRAPHIC] [TIFF OMITTED] 39985.141
[GRAPHIC] [TIFF OMITTED] 39985.142
[GRAPHIC] [TIFF OMITTED] 39985.143
[GRAPHIC] [TIFF OMITTED] 39985.144
[GRAPHIC] [TIFF OMITTED] 39985.145
[GRAPHIC] [TIFF OMITTED] 39985.146
[GRAPHIC] [TIFF OMITTED] 39985.147
[GRAPHIC] [TIFF OMITTED] 39985.148
[GRAPHIC] [TIFF OMITTED] 39985.149
[GRAPHIC] [TIFF OMITTED] 39985.150
[GRAPHIC] [TIFF OMITTED] 39985.151
[GRAPHIC] [TIFF OMITTED] 39985.152
[GRAPHIC] [TIFF OMITTED] 39985.153
[GRAPHIC] [TIFF OMITTED] 39985.154
[GRAPHIC] [TIFF OMITTED] 39985.155
[GRAPHIC] [TIFF OMITTED] 39985.156
[GRAPHIC] [TIFF OMITTED] 39985.157
[GRAPHIC] [TIFF OMITTED] 39985.158
[GRAPHIC] [TIFF OMITTED] 39985.159
[GRAPHIC] [TIFF OMITTED] 39985.160
[GRAPHIC] [TIFF OMITTED] 39985.161
[GRAPHIC] [TIFF OMITTED] 39985.162
[GRAPHIC] [TIFF OMITTED] 39985.163
[GRAPHIC] [TIFF OMITTED] 39985.164
[GRAPHIC] [TIFF OMITTED] 39985.165
[GRAPHIC] [TIFF OMITTED] 39985.166
[GRAPHIC] [TIFF OMITTED] 39985.167
[GRAPHIC] [TIFF OMITTED] 39985.168
[GRAPHIC] [TIFF OMITTED] 39985.169
[GRAPHIC] [TIFF OMITTED] 39985.170
[GRAPHIC] [TIFF OMITTED] 39985.171
[GRAPHIC] [TIFF OMITTED] 39985.172
[GRAPHIC] [TIFF OMITTED] 39985.173
[GRAPHIC] [TIFF OMITTED] 39985.174
[GRAPHIC] [TIFF OMITTED] 39985.175
[GRAPHIC] [TIFF OMITTED] 39985.176
[GRAPHIC] [TIFF OMITTED] 39985.177
[GRAPHIC] [TIFF OMITTED] 39985.178
[GRAPHIC] [TIFF OMITTED] 39985.179
[GRAPHIC] [TIFF OMITTED] 39985.180
[GRAPHIC] [TIFF OMITTED] 39985.181
[GRAPHIC] [TIFF OMITTED] 39985.182
[GRAPHIC] [TIFF OMITTED] 39985.183
[GRAPHIC] [TIFF OMITTED] 39985.184
[GRAPHIC] [TIFF OMITTED] 39985.185
[GRAPHIC] [TIFF OMITTED] 39985.186
[GRAPHIC] [TIFF OMITTED] 39985.187
[GRAPHIC] [TIFF OMITTED] 39985.188
[GRAPHIC] [TIFF OMITTED] 39985.189
[GRAPHIC] [TIFF OMITTED] 39985.190
[GRAPHIC] [TIFF OMITTED] 39985.191
[GRAPHIC] [TIFF OMITTED] 39985.192
[GRAPHIC] [TIFF OMITTED] 39985.193
[GRAPHIC] [TIFF OMITTED] 39985.194
[GRAPHIC] [TIFF OMITTED] 39985.195
[GRAPHIC] [TIFF OMITTED] 39985.196
[GRAPHIC] [TIFF OMITTED] 39985.197
[GRAPHIC] [TIFF OMITTED] 39985.198
[GRAPHIC] [TIFF OMITTED] 39985.199
[GRAPHIC] [TIFF OMITTED] 39985.200
[GRAPHIC] [TIFF OMITTED] 39985.201
[GRAPHIC] [TIFF OMITTED] 39985.202
[GRAPHIC] [TIFF OMITTED] 39985.203
[GRAPHIC] [TIFF OMITTED] 39985.204
[GRAPHIC] [TIFF OMITTED] 39985.205
[GRAPHIC] [TIFF OMITTED] 39985.206
[GRAPHIC] [TIFF OMITTED] 39985.207
[GRAPHIC] [TIFF OMITTED] 39985.208
[GRAPHIC] [TIFF OMITTED] 39985.209
[GRAPHIC] [TIFF OMITTED] 39985.210
[GRAPHIC] [TIFF OMITTED] 39985.211
[GRAPHIC] [TIFF OMITTED] 39985.212
[GRAPHIC] [TIFF OMITTED] 39985.213
[GRAPHIC] [TIFF OMITTED] 39985.214
[GRAPHIC] [TIFF OMITTED] 39985.215
[GRAPHIC] [TIFF OMITTED] 39985.216
[GRAPHIC] [TIFF OMITTED] 39985.217
[GRAPHIC] [TIFF OMITTED] 39985.218
[GRAPHIC] [TIFF OMITTED] 39985.219
[GRAPHIC] [TIFF OMITTED] 39985.220
[GRAPHIC] [TIFF OMITTED] 39985.221
[GRAPHIC] [TIFF OMITTED] 39985.222
[GRAPHIC] [TIFF OMITTED] 39985.223
[GRAPHIC] [TIFF OMITTED] 39985.224
[GRAPHIC] [TIFF OMITTED] 39985.225
[GRAPHIC] [TIFF OMITTED] 39985.226
[GRAPHIC] [TIFF OMITTED] 39985.227
[GRAPHIC] [TIFF OMITTED] 39985.228
[GRAPHIC] [TIFF OMITTED] 39985.229
[GRAPHIC] [TIFF OMITTED] 39985.230
[GRAPHIC] [TIFF OMITTED] 39985.231
[GRAPHIC] [TIFF OMITTED] 39985.232
[GRAPHIC] [TIFF OMITTED] 39985.233
[GRAPHIC] [TIFF OMITTED] 39985.234
[GRAPHIC] [TIFF OMITTED] 39985.235
[GRAPHIC] [TIFF OMITTED] 39985.236
[GRAPHIC] [TIFF OMITTED] 39985.237
[GRAPHIC] [TIFF OMITTED] 39985.238
[GRAPHIC] [TIFF OMITTED] 39985.239
[GRAPHIC] [TIFF OMITTED] 39985.240
[GRAPHIC] [TIFF OMITTED] 39985.241
[GRAPHIC] [TIFF OMITTED] 39985.242
[GRAPHIC] [TIFF OMITTED] 39985.243
[GRAPHIC] [TIFF OMITTED] 39985.244
[GRAPHIC] [TIFF OMITTED] 39985.245
[GRAPHIC] [TIFF OMITTED] 39985.246
[GRAPHIC] [TIFF OMITTED] 39985.247
[GRAPHIC] [TIFF OMITTED] 39985.248
[GRAPHIC] [TIFF OMITTED] 39985.249
[GRAPHIC] [TIFF OMITTED] 39985.250
[GRAPHIC] [TIFF OMITTED] 39985.251
[GRAPHIC] [TIFF OMITTED] 39985.252
[GRAPHIC] [TIFF OMITTED] 39985.253
[GRAPHIC] [TIFF OMITTED] 39985.254
[GRAPHIC] [TIFF OMITTED] 39985.255
[GRAPHIC] [TIFF OMITTED] 39985.256
[GRAPHIC] [TIFF OMITTED] 39985.257
[GRAPHIC] [TIFF OMITTED] 39985.258
[GRAPHIC] [TIFF OMITTED] 39985.259
[GRAPHIC] [TIFF OMITTED] 39985.260
[GRAPHIC] [TIFF OMITTED] 39985.261
[GRAPHIC] [TIFF OMITTED] 39985.262
[GRAPHIC] [TIFF OMITTED] 39985.263
[GRAPHIC] [TIFF OMITTED] 39985.264
[GRAPHIC] [TIFF OMITTED] 39985.265
[GRAPHIC] [TIFF OMITTED] 39985.266
[GRAPHIC] [TIFF OMITTED] 39985.267
[GRAPHIC] [TIFF OMITTED] 39985.268
[GRAPHIC] [TIFF OMITTED] 39985.269
[GRAPHIC] [TIFF OMITTED] 39985.270
[GRAPHIC] [TIFF OMITTED] 39985.271
[GRAPHIC] [TIFF OMITTED] 39985.272
[GRAPHIC] [TIFF OMITTED] 39985.273
[GRAPHIC] [TIFF OMITTED] 39985.274
[GRAPHIC] [TIFF OMITTED] 39985.275
[GRAPHIC] [TIFF OMITTED] 39985.276
[GRAPHIC] [TIFF OMITTED] 39985.277
[GRAPHIC] [TIFF OMITTED] 39985.278
[GRAPHIC] [TIFF OMITTED] 39985.279
[GRAPHIC] [TIFF OMITTED] 39985.280
[GRAPHIC] [TIFF OMITTED] 39985.281
[GRAPHIC] [TIFF OMITTED] 39985.282
[GRAPHIC] [TIFF OMITTED] 39985.283
[GRAPHIC] [TIFF OMITTED] 39985.284
[GRAPHIC] [TIFF OMITTED] 39985.285
[GRAPHIC] [TIFF OMITTED] 39985.286
[GRAPHIC] [TIFF OMITTED] 39985.287
[GRAPHIC] [TIFF OMITTED] 39985.288
[GRAPHIC] [TIFF OMITTED] 39985.289
[GRAPHIC] [TIFF OMITTED] 39985.290
[GRAPHIC] [TIFF OMITTED] 39985.291
[GRAPHIC] [TIFF OMITTED] 39985.292
[GRAPHIC] [TIFF OMITTED] 39985.293
[GRAPHIC] [TIFF OMITTED] 39985.294
[GRAPHIC] [TIFF OMITTED] 39985.295
[GRAPHIC] [TIFF OMITTED] 39985.296
[GRAPHIC] [TIFF OMITTED] 39985.297
[GRAPHIC] [TIFF OMITTED] 39985.298
[GRAPHIC] [TIFF OMITTED] 39985.299
[GRAPHIC] [TIFF OMITTED] 39985.300
[GRAPHIC] [TIFF OMITTED] 39985.301
[GRAPHIC] [TIFF OMITTED] 39985.302
[GRAPHIC] [TIFF OMITTED] 39985.303
[GRAPHIC] [TIFF OMITTED] 39985.304
[GRAPHIC] [TIFF OMITTED] 39985.305
[GRAPHIC] [TIFF OMITTED] 39985.306
[GRAPHIC] [TIFF OMITTED] 39985.307
[GRAPHIC] [TIFF OMITTED] 39985.308
[GRAPHIC] [TIFF OMITTED] 39985.309
[GRAPHIC] [TIFF OMITTED] 39985.310
[GRAPHIC] [TIFF OMITTED] 39985.311
[GRAPHIC] [TIFF OMITTED] 39985.312
[GRAPHIC] [TIFF OMITTED] 39985.313
[GRAPHIC] [TIFF OMITTED] 39985.314
[GRAPHIC] [TIFF OMITTED] 39985.315
[GRAPHIC] [TIFF OMITTED] 39985.316
[GRAPHIC] [TIFF OMITTED] 39985.317
[GRAPHIC] [TIFF OMITTED] 39985.318
[GRAPHIC] [TIFF OMITTED] 39985.319
[GRAPHIC] [TIFF OMITTED] 39985.320
[GRAPHIC] [TIFF OMITTED] 39985.321
[GRAPHIC] [TIFF OMITTED] 39985.322
[GRAPHIC] [TIFF OMITTED] 39985.323
[GRAPHIC] [TIFF OMITTED] 39985.324
[GRAPHIC] [TIFF OMITTED] 39985.325
[GRAPHIC] [TIFF OMITTED] 39985.326
[GRAPHIC] [TIFF OMITTED] 39985.327
[GRAPHIC] [TIFF OMITTED] 39985.328
[GRAPHIC] [TIFF OMITTED] 39985.329
[GRAPHIC] [TIFF OMITTED] 39985.330
[GRAPHIC] [TIFF OMITTED] 39985.331
[GRAPHIC] [TIFF OMITTED] 39985.332
[GRAPHIC] [TIFF OMITTED] 39985.333
[GRAPHIC] [TIFF OMITTED] 39985.334
[GRAPHIC] [TIFF OMITTED] 39985.335
[GRAPHIC] [TIFF OMITTED] 39985.336
[GRAPHIC] [TIFF OMITTED] 39985.337
