Republicans focus on terrorism at confirmation hearing for deputy attorney general

James M. Cole
James M. Cole (Bill Haber - AP)
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By Jerry Markon
Washington Post Staff Writer
Wednesday, June 16, 2010

Republicans renewed their criticism of President Obama's national security policies Tuesday, using a confirmation hearing for a top Justice Department official to argue that the administration is failing to aggressively fight terrorism.

The latest flare-up of the politics of terror centered on Obama's nomination of James M. Cole as deputy attorney general, a critical position that has been vacant for months. Cole is a white-collar defense lawyer and longtime friend of Attorney General Eric H. Holder Jr. and has held numerous jobs in government, including serving 13 years at the Justice Department.

At Cole's Senate Judiciary Committee hearing, Republicans focused on several phrases in a 2002 column he wrote for Legal Times that criticized the Bush administration's battle against terrorism after the Sept. 11, 2001, attacks. "The attorney general is not a member of the military fighting a war -- he is a prosecutor fighting crime," Cole wrote. "For all the rhetoric about war, the Sept. 11 attacks were criminal acts of terrorism against a civilian population."

Sen. Jeff Sessions (Ala.), the ranking Republican on the panel, said that embodied the "failed, pre-September 11th law enforcement approach to terrorism," an argument Republicans used against Obama after the attempted bombing of a Detroit-bound airliner on Christmas Day. Critics said the suspect in that case should have been placed in a military, rather than civilian, court.

"I'm concerned about what kind of signal" Cole's nomination sends, Sessions said. "What does it say about the president's determination to proceed against the enemy combatants who threaten the United States?"

Cole, 58, parried the criticism, saying the Justice Department must aggressively fight the "scourge" of terrorism through both military commissions and federal courts. The point of his article, he said, was that "we should do so within the rule of law." Cole also wrote that the attorney general should be an "aggressive advocate" in fighting terror and "use every tool . . . seek every extension of the law and advantage he can imagine to wage this battle."

By hearing's end, even Republicans were acknowledging that Cole's confirmation by the full Senate was likely, and Sen. Lindsey O. Graham (R-S.C.) said he is "very confident" that Cole "understands that military commissions have a role in the war on terror.''

But the partisan exchanges showed that the debate over where terrorism suspects should be tried and whether they should be read their Miranda rights against self-incrimination is not ending. During the hearing, the staff of committee chairman Patrick J. Leahy (D-Vt.) distributed a document backing federal court trials and saying that "military judges and lawyers have little experience with complex terrorism cases.''

Cole would handle far more than terrorism in the deputy attorney general post, which would make him chief operating officer for the Justice Department, running a vast 24-hour operation with more than 100,000 employees. The job involves such tasks as setting policy, deciding whether to prosecute high-profile cases and resolving disputes between Justice agencies.

Among his other priorities, Cole cited prosecuting financial and health-care fraud and overseeing the criminal and civil investigations into the gulf oil spill that Holder recently announced. He said that prosecutors should carefully evaluate whether to charge any corporation because "thousands and thousands of employees who had no role in the misconduct are hurt" but that targeting individual executives "gets you the most deterrence.''

Cole, a partner at Bryan Cave law firm in the District, is a former deputy chief of Justice's public integrity section. He served as a special counsel to the House ethics committee in 1997 as it investigated allegations that then-House Speaker Newt Gingrich (R-Ga.) used tax-exempt money for partisan purposes.

He also worked as an independent monitor reviewing the operations of American International Group, the insurance giant bailed out during the financial crisis. Republicans had vowed to make Cole's role at AIG an issue, but other than a statement by Sessions that it was "troubling," the issue barely came up.

Federal officials have said Cole did not review matters related to the company's near-collapse, and he told the committee he "insisted on tough measures" involving financial reporting and regulatory compliance.

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