Senate Judiciary Committee Hearing for Nomination of Judge Mukasey as Attorney General

Oct. 17, 2007
CQ Transcripts

SEN. PATRICK J. LEAHY, CHAIRMAN: Before we start, just so everyone will understand, something that has seemed to be a relatively new phenomena, or at least in the years I've 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 don't 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'm directing the police, 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'm sure that's not going to be necessary. I'm sure everybody's going to treat this hearing with decorum.

But I recall seeing Senator Durbin here -- we had this situation recently in an Appropriations Committee hearing.

And, Judge, please feel free to come up and sit there. 

Judge, I think I had this wrong. I didn't realize on the introducing -- I think Senator Schumer will introduce you from up here and Senator Lieberman will introduce you from where you're sitting. 

LEAHY: So if we could do that musical chair, and have you...


... have you go back.

I'll give my statement on this, and then we'll have Senator Schumer and Senator Lieberman make introductions. 

Earlier 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 know that, unlike during Watergate, this time there's no Elliot Richardson, there's 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've been here with six presidential administrations, Republican and Democratic. And 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 the 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.

LEAHY: There's a 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's 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.

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, 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.

Incredibly, 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 doubled back to redefine torture, and cruel, inhuman and degrading treatment, to allow the very conduct of torture that this Congress had outlawed.

We've seen departures from this country's honorable traditions, practices and established law in connection with interrogation methods that we condemn when they're used by others.

Likewise, we've 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's gone wrong, that this administration has stubbornly refused to admit or correct. 

When President Bush described Attorney General Gonzales' resignation to supposed unfair treatment and having his good name dragged through the mud for political reasons, ignoring the fact the numerous prominent Republicans had called for his resignation, he mischaracterized the clear facts about a U.S. attorney firing scandal that decimated morale at the Justice Department.

LEAHY: 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 the responsibilities and duties of that office are not to be invalidated by the administration.

We are reminded by the examples of Elliot Richardson and William Ruckelshaus from the Watergate era and, 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're the most powerful nation on Earth. We're the most powerful nation the world has ever known, a country that cherishes liberty and human rights, a nation that's 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.

This is a job interview for a big job. The big job 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, with 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 the nomination can begin the repair 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.

So I have gone over my time, but I think this is an important issue.

LEAHY: And I yield to Senator Specter for whatever amount of time he wants.

SEN. ARLEN 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 hiring of merit and firing for cause.

We have seen broad expansion of executive authority, and understandably so when we're 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'm very concerned about what is happening with constitutional rights.

SPECTER: 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 and may not be willing to do that under my Article II powers."

Or on the celebrated rapprochement between President Bush or Senator McCain over interrogation tactics, carefully negotiated and then a signing statement. 

The conventional understanding of constitutional authority is when the Congress enacts legislation, presents it to the president and he signs it, that that's the law that he has to faithfully execute, under the Constitution. 

And I'm 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 haven't resolved the detainee issue. Congress has legislated on it and you have combat 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 reargument on the detainee issue.

There are so many matters to take on this hearing that I think it's likely to be longer than most.

SPECTER: We need to examine the nominee's attitude on 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 or 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's a move to recommit it 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 on executive authority.

At 11 o'clock, the Senate will take up the appropriations bill on Labor, Health, Human Services and Education, where I'm the ranking member, so I'll have to be in and out. But in my absence, we'll be watching closely and participating extensively because this is such a very, very important matter.

Thank you, Mr. Chairman.

LEAHY: Well, thank you, Senator Specter.

I should also note that -- I think I've mentioned this to you -- Senator Kennedy had surgery over the weekend and is recuperating at home, and that's why he's 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.

LEAHY: And I'm going to ask -- after he does, I'm going to ask Senator Lieberman, who was your classmate, and either he helped you through law school or you helped him through school, introduce.

Senator Schumer, go ahead.

SEN. CHARLES E. SCHUMER: Thank you. Thank you, Mr. Chairman. And thank you for the honor of introducing Judge Mukasey. It's a privilege to be introducing a fellow New Yorker at today's hearing.

I congratulate 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'm 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 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 Abdul Rahman, known as the Blind Sheik, 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.

SCHUMER: Upon his retirement from the bench, one of Jose Padilla's lawyers said, quote, "I admire him greatly," and described herself as, quote, "another weeping fan," unquote.

Another Padilla lawyer has said, quote, "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," unquote. He went on to say, quote, "His sense of fairness and due process is 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 experienced 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.

SCHUMER: The bottom line is this: There have been many conservative department lawyers who were 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 do not agree with any of these -- 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's 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 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 -- I'll 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'll go back and reexamine the legal opinions that underlie various controversial administration policies.

LEAHY: Senator Schumer, I don't mean to cut you off, but we're going to have to have a break because of the Dalai Lama. Are you going to take much longer?

SCHUMER: No, no.

LEAHY: Because otherwise...

SCHUMER: 30 seconds, Mr. Chairman.

He also assured me he'll go back and reexamine 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...

LEAHY: Thank you, Senator Schumer.

SCHUMER: ... and who will restore the department to its full promise.

I expect this hearing...

LEAHY: Senator Lieberman?

SCHUMER: ... to demonstrate that this hope is justified.

LEAHY: Senator Lieberman?

SEN. JOSEPH I. LIEBERMAN: Thank you very much, Mr. Chairman, Senator Specter. 

It's 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's the senator from New York, Judge Mukasey is from New York. I think I'm 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. 

We had a -- it was contracts. We had a young faculty member named Robert Baching Stevens (ph), 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'd go to Mike Mukasey. And then when I was least suspecting, he'd come back, whirl around and say, "Now, back to you, Mr. Lieberman." It was a hair-raising experience. 

And 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'm sure members of the committee will not agree with him on some things. But you will always feel after the hearings that you're beginning this morning that he has given you a reasoned answer, he's thought about it, and he's not hesitant to reach an opinion.

Secondly, I would say that the person I met 43 years ago was a young man who was smart, who was thoughtful, who was hardworking, who had a kind of solid center about him as a person, who had a great sense of humor and a ready smile. 

And it's 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.

LIEBERMAN: He comes with the experience of more than two decades as a prosecutor, a judge, a private practitioner, what 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've thought about it, it's 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.

Secondly, he comes with extraordinarily 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 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 is 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, 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.


LEAHY: Senator Lieberman, I might say, one, I appreciate very much especially the personal part. 

And I would also tell Judge Mukasey -- and I don't think Senator Lieberman will mind me doing this -- he spoke to me privately and was just as glowing in his private conversations as he's been in his public and was very strongly supportive of both your legal background and your integrity, your honesty.

Joe, thank you.

LIEBERMAN: Thank you, Pat.

MUKASEY: Thank you, Senator Lieberman.

LEAHY: We're going to make a slight change in chairs. If this was 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 the testimony you'll give in this matter will be the truth, the whole truth and nothing but the truth, so help you God?


LEAHY: Judge, you've heard everybody speak about you, say glowing things about, 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 are waiting to here from you.

Please go ahead, sir.

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've 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'm 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'm grateful to my family; my wife, Susan, my children, Marc and Jessica, who have been a part of whatever I've done that's been worth while.

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.

MUKASEY: 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 on 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'm 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's 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.

MUKASEY: 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.

LEAHY: Thank you, Judge.

And I -- you had mentioned that your wife, Susan, is here and son, Marc, and daughter, Jessica. And I'll ask the staff to put in the record the names of all the other people here accompanying you. Someday in the Mukasey archives they'll enjoy 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 the 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 border fraud enforcement cases. 

One of the fired U.S. attorneys, Todd Graves, 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, Wisconsin, elsewhere. 

And this -- these prosecutions, like the Schlozman ones, clearly violated the Justice Department's red book, which is its guide for federal prosecution of election offenses, which basically says you don't bring these last-minute prosecutions where it may affect an election.

Now, that guide book 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 had been there with the Republican and Democratic administrations as long as I can remember?

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've articulated before, and I'm going to -- if I'm confirmed, I'm 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.

MUKASEY: And those people ought to have available to them -- and will have available to them, if I'm 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.

LEAHY: I'd 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're apt to affect the outcome one way or the other.

MUKASEY: Obviously. The closer -- the closer you get to an election, when there's a charge that either deals with a candidate or deals with an issue that can affect the outcome of a vote, the higher and higher have 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.

LEAHY: And, of course, you've had -- you've had a close association with Rudy Giuliani, who's 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've spoken of with pride and he has too. You served recently on the Justice advisory committee.

Can I assume that as attorney general and with the fact that the Justice Department has to be watching that the elections are held fairly, that -- would it be safe to say that you will totally recuse yourself from any involvement, either with Mr. Giuliani or any candidate for president?

MUKASEY: It is safe to say. It's not only safe to say, I'm saying it too. So that there's no ambiguity...

LEAHY: Kind of a hornbook law, right?

MUKASEY: Right. No ambiguity in the record there.

LEAHY: Thank you.

Now, let's go over to so-called Bybee memo. 

I think one of the greatest stains on the history of this country is the memo dated August 1st, 2002, signed by then-Assistant Attorney General Jay Bybee. 

It concluded that the president has 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' 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 were 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.

LEAHY: 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?

MUKASEY: We are party 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's 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's 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. 

It, as I've read -- I mean, I've read the memo and I've read what's been -- some of what's 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.

LEAHY: Would you -- would it be a safe characterization of what you've just said that you repudiate this memo as not only being contrary to law, but also contrary to the values America stands for?


LEAHY: And does -- is there such a thing as a commander-in-chief override that would allow the immunization of acts of torture that violate the law?

MUKASEY: Not that I'm aware of.

LEAHY: Thank you.

You know, 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 the Congress passed?

MUKASEY: I'm certainly going to examine the underlying memos and the underlying facts. 

I'm not -- 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 can't (inaudible) say that there's something that's 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.

LEAHY: Will you not only read the memos, but make sure that they are in line with the testimony you've already given and your own views of what is allowed under our law?

MUKASEY: I certainly will. 

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 Foreign Intelligence Surveillance Act, so-called FISA, the signing statement reservation and others. 

For five years, the administration conducted a program of warrantless surveillance that violated the provisions of FISA. They didn't 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 result in public criticism, and telecommunication companies that 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 authority to override something that is in law, legal requirements, and immunize illegal surveillance on Americans?

MUKASEY: The president can't immunize illegality. That's a contradiction in terms. 

But that said, I think there's 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.

MUKASEY: I said I was not read in on classified programs, and the terrorist surveillance program that you speak of, although it's no longer in effect, remains a classified program. And so, I don't know what the details are of it.

LEAHY: But you will get read in to it.

MUKASEY: Of course, I will.

LEAHY: Well, there'll probably be further questions.

My last question is this -- and I'll go back onto some more in 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 USC 194?

MUKASEY: In order for a U.S. attorney to take a charge of contempt to a grand jury, the U.S. attorney has to be able to tell that grand jury that any reliance by the contemptnor 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 can't 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 don't ever have to make that decision. But when I make it, I'm going to make it in line with those principles I just discussed.

LEAHY: Your predecessor made the decision without even looking at those principles, and said that the U.S. attorney wouldn't be allowed to go forward and the White House did (ph).

You would at least require some principles before making such a determination. Is that what you're saying?

MUKASEY: That's what I'm saying. I'm going to be guided by the principles I just mentioned.

LEAHY: Senator Specter?

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, 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?

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.

SPECTER: Well, if the alternative is to leave if you can't talk him out of it, then I think the answer to my question is yes.



Judge Mukasey, there is a variance between the way you were quoted in this morning's Washington Post contrasted with your citation of Justice Jackson's statement.

You're quoted in The Washington Post as 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 vs. 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'm, 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.

SPECTER: Is your dominant view the view you expressed by -- or quoted Jackson, that protecting civil liberties is a part of protecting nation security?

MUKASEY: It is. 

And I think I -- I'm not certain that I recall, precisely, the context of the statement that was quoted in The Post. But I think was talking there about individual litigants, not in the 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 litigants in U.S. courts.

SPECTER: Well, the Supreme Court said in Rasul that if the territory is under the control of the United States government, as Guantanamo was, wouldn't that apply to an individual within the custody and control of the United States government anywhere?

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 a -- as I understood it, a statutorily based holding. In fact, Congress then passed 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 Boumedienne case. And I think the brief in fact have already been filed.

SPECTER: Well, I'm interested in your view. You're going to be called upon to make judgments long before the Supreme Court will. That's 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 United States government, regardless of nationality or physical location, shall be subject to cruel, inhuman or degrading treatment or punishment."

I'm going to come to the latter part in a minute, but the relevant part here for what we're discussing now is that it doesn't matter where the, quote, "physical location" is.

MUKASEY: As to that provision, it certainly does not matter. And that provision relates to cruel and inhuman -- cruel, inhuman and degrading treatment, which no one is permitted to engage in regardless of where he or she is.

SPECTER: Senator Leahy quoted the Bybee memo. I want to refer to another Department of Justice memo in 2002, which said that, quote, "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, quote, "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 and 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, didn't 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 can't 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 do you defer to the president's Article II power?

MUKASEY: I think the question assumes that the president's -- that the president has directed that that -- that that method of interrogation, notwithstanding a finding that it violates the law, should proceed anyway. And in that case, I have no course but to follow the law.

SPECTER: Follow the statute. 

MUKASEY: Yes, sir.

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?

MUKASEY: Senator, that -- as I understand it, that question and related questions are squarely before the court in Boumedienne. And I'm going to have to do -- to carry into -- in...

SPECTER: Judge Mukasey, you're punting now.

MUKASEY: That's right. Because I'm 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.

SPECTER: Well, you can punt a little more easily when that issue is before the court, I'll 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're going to hear argument on it. It's 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, Supreme Court hasn't decided, they say, "Attorney General Mukasey, we've got this detainee, we want to know if -- 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? He's got a detainee, he's got a person -- you've got a case in controversy right before you, months before the Supreme Court decides it.

MUKASEY: That, as you say, is precisely the case that's before the court, and the department has already filed briefs in that case.

SPECTER: I filed a brief, too, but that doesn't mean anything. The court hasn't ruled.

MUKASEY: The fact that the court hasn't heard it does not mean that I'm not...

SPECTER: OK. Well, my time is up and I'd like...

LEAHY: If you want to finish your question, feel free.

SPECTER: I'd like to set a good example to Judge Mukasey. I'd like to quit on time.

Thank you very much.

LEAHY: Strong message to some of the rest of us.

Senator Kohl?

SEN. HERB 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'll be independent of the White House and that politically driven decision- making will be eliminated if you are confirmed.

But we're hoping that you can say more than that.

KOHL: You've 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?

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've said here and what I'm going to reiterate, if I'm 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's got an R or a D name 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 didn't know the politics of many of the people there and still don't. And it didn't matter. It had nothing to do with our job, nothing to do with the way we did it. And it can't have anything to do with the jobs of the people in the Justice Department today.

That's the standard I'm going to make very clear, very precise, and I'm going to enforce.

KOHL: Other than saying you won't hire or fire U.S. attorneys solely for political reasons, what can you do to ensure that this practice does end immediately?

MUKASEY: I don't know now of any ongoing dispute involving United States -- involving the dismissal of a United States attorney for any such reason. 

But if there is any such I'm going to get in the middle of it very fast and stop it, and do everything I can to stop it.

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?

MUKASEY: I'm 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've already has 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're 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, 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're not going to have the rug pulled out from under them at a later time because it's found that somebody had gone too far in giving them authorization.

It's important that they be able to do their work. And we're going to expect them to do their work. We want them to get the information that we need. But we can't expect them to put their careers and their freedom on the line if they don't have confidence that the authorizations that are being given to them are sound.

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 that enforcement of our laws? And if so, what do you intend to do to change it?

MUKASEY: Of course it's a problem. You can't -- matters can't 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's 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've thought about it. And it's obviously a top priority.

KOHL: Justice Mukasey, for decades this country has been admired around the world for its unwavering commitment to human rights and the rule of law. 

There's 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 that a focus of international criticism and he said, quote, "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?

MUKASEY: I think there are substantial problems with Guantanamo, both problems of reality and problems of perception. 

As to reality, it's my understanding that although people are humanely treated at Guantanamo, it's more than a matter of humane treatment. It's a matter of the fact that we're detaining people apparently without end and that it's 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've had with Guantanamo is that, to use a bureaucratic expression, nobody owns it. The Justice -- the Defense Department runs it. There's obviously an overlay of Justice Department involvement insofar as we're 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's out there in a kind of no man's land of jurisdiction. And control has to be taken.

KOHL: Are you prepared to recommend to the president that we close Guantanamo?

MUKASEY: I'm prepared to recommend to the president that we take the responsible course in dealing with the people at Guantanamo. 

I can't simply say, "We have to close Guantanamo," because obviously the question then arises what we do with the people who are there. And there is now no easy solution to that.

KOHL: Well, you've had time to think about this. It's been on the table since the day you were nominated and for a long time before that. 

KOHL: What are you prepared to do with Guantanamo? Are you prepared to close at? Are you prepared to take the steps that are necessary to close, which you've 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"?

MUKASEY: I think I am prepared to say that we need to get the best advise and the best ideas that we can and act responsibly, with the goal of closing it down because it's hurting us. That I'm prepared to say. 

And I think, as regards this president, I think I'd be preaching to the converted. I think he understands that. I think he has said that he understands that Guantanamo is -- has hurt us.

KOHL: Is that high on your list of priorities?

MUKASEY: Yes, it is, along with -- yes, along with filling vacancies, it is.

KOHL: So we can expect that, in the event that you're confirmed, soon thereafter we'll be hearing about Guantanamo and the things that you believe need to be done to close it as soon as possible.

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 then I will be making that known to the president. That's what I'm going to do.

KOHL: Do you believe that Congress has the constitutional authority to prohibit torture?

MUKASEY: Yes, I do. And it has.

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, quote, "We are realizing that national security is as much about reducing the number of homicides on our streets as it is about reducing the threat of terrorism," unquote.

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?

MUKASEY: I do. And I think we need to look at both resource allocation and at the resources we have. 

It's my understanding that the terrorism effort, insofar as it took place within the Justice Department, apart of 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 anti-terrorism efforts, and that there may have been programs, including anti-gang programs, that may have suffered as a result.

MUKASEY: And that's something that can't be tolerated because we can't turn our society into something that's not worth preserving in order to preserve it. That's not a formula for success.

I think we need to figure out staffing. I think we need to get the budget we are to ought to be. And obviously, if I'm confirmed, I'm 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's a violent gangs unit in the U.S. attorney's office in my district focused specifically on that. So, I understand the importance of that. 

And it's also corrosive because the people attracted to violent gangs, obviously, are young people. And that's supposed to be our future.

KOHL: As you know, Judge Mukasey, violent crime, to which we were 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 has 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?

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.

MUKASEY: 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...

KOHL: So you're not...


MUKASEY: ... I would encourage it.

KOHL: You're not about to say that you do support continuing funding for the COPS program?

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's a principle that I support.

LEAHY: Thank you, Senator Kohl. 

Senator Hatch will be next. And before we start (inaudible) we will continue to go back and forth. 

Judge, I'm going to break about noon, as I mentioned to you earlier. If you need a break, of course, before then let us know. 

MUKASEY: Thank you.

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, moving around.

A number of us who were sponsors of that Gold Medal will -- or a number of us who are friends of the Dalai Lama will want to be there.

And we'll go now to Senator Hatch.

SEN. ORRIN G. HATCH: Well, thank you, Mr. Chairman. 

Judge Mukasey, I appreciated the time we had together in our office. I certainly appreciated the comments by both Senator 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 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'll 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?

MUKASEY: If that's what I said, that's not what I meant.

HATCH: Well, I know you didn't mean that.

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. 

A statute can't limit that authority because he has the responsibility to protect the country and so he has the authority that's commensurate with that. 

MUKASEY: But, that said, I think it's been obvious from events of the last several years that everybody is better off -- the president's better off, the Congress is better off in, the country is better off -- when everybody's rolling in the same direction.

When the president acts pursuant to his authority with help from the Congress, with the tools of the Congress provides, then we don't have to get into butting heads over who can and who can't. 

Justice Holmes said that when the Constitution defined three branches of government, it did not define fields of black and white. There's gray, and there's always friction at the borders. We're all much better off when those issues don't have to be resolved in an either/or fashion.

HATCH: Thank you.

The first area that I'd 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. They're just -- it seems to be pervasive in our media today, especially the Internet. And consumption of this material harms individuals, families communities. Production of this material victimizes children as well as adults and disproportionately victimizes women, as far as I can see. 

I'm 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 vigorously 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's 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 focus 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. 

HATCH: 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'm asking you personally to review this policy decision about prosecuting extreme rather than mainstream obscenity and to consider changing it. Would you can give some consideration to that?

MUKASEY: I certainly will.

HATCH: Grateful to you if you would.

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 a society, of objectifying women, and of endangering children in a way that we can't tolerate.

Obviously, we're 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 doesn't affect children and it doesn't wind up undermining families.

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?

MUKASEY: I will.

HATCH: Thank you so much.

Let me ask you about a case you listed in your questionnaire as one of the 10 most important cases that you personally worked on. And of course that's the Carlin 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 10 list.

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 in what is 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 10th Circuit. 

So far as being among the top 10, it's 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, nothing else.

HATCH: Well, that's an appropriate effort by any attorney to under the law enforce the law. And that shows, again, I think, how you have acted throughout your lifetime. 

And some people might try and construe your representation in that case wrongly, but I commend you for being the great attorney you are.

MUKASEY: Thank you.

HATCH: 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 a patent -- and others on this committee -- I have to say Senator Specter's 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, America's ingenuity continues to fuel our economy and it's 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 government-wide 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?

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's what fuels our economy and that's what promotes our growth.

And I had occasion as a district judge to enforce intellectual property laws. There are -- 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.

HATCH: It's 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 it was in Newsweek about a month ago, describing you as telling Mr. Clement that his arguments were absurd.

HATCH: Now, some critics of the previous attorney general have said that he was not independent enough for the White House.

Now, will you take that same backbone that you exhibited there -- assuming that Newsweek was accurate -- and sense of independence showed during your judicial service into this new position as an attorney general?

MUKASEY: Well, I will reject any argument that I feel is without foundation. 

And I just want to make one minor proper correction. Particularly since I've met Paul Clement since then. He's a superb lawyer...

HATCH: I have no doubt that you you'll work very harmoniously.


MUKASEY: I don't think I actually said his arguments were 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.

HATCH: Well, I only raised it because it was a lot of fun for me to raise.


I want you to know how much I appreciate your willingness to accept this great position. It's 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're 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'm grateful to you.

MUKASEY: Thank you very much.

LEAHY: Senator Feinstein?

SEN. DIANNE FEINSTEIN: Thank you very much, Mr. Chairman. 

And welcome, Judge. It's 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 don't want anyone to believe it is not in effect.

MUKASEY: As I said, I'm not read in on classified programs. And so, I'm going to make mistakes like that and I appreciate being corrected.

FEINSTEIN: Thank you, just so, for the record.

Now, let me ask you a question about delegation of authority. 

Attorney General Gonzales issued an executive order on March 1st, 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?

MUKASEY: I didn't understand -- I don't -- I'm 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 can do everything himself or herself. 

But that said, the authority is that of the attorney general. And you don't 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's not the way I'm going to run the department.

FEINSTEIN: Well, I thank you. 

I would respectfully suggest you take a look at it, because it was 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'd 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, quote, "except pursuant to an act of Congress," end quote.

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.

FEINSTEIN: 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?

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 in -- I believe, in Afghanistan.

FEINSTEIN: I'm talking about the United States.

MUKASEY: Hamdi left open the question of where the battlefield is and who defines the battlefield. 

And I certainly can't say that, as of now, there is clear authority authorizing what I thought there was authority to authorize in Padilla.

FEINSTEIN: Thank you very much. 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, quote, "Courts may not review the level of force selected," end quote.

FEINSTEIN: The first question is, how long does this unlimited power last?

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.

FEINSTEIN: So you would then agree that the Congress, under its Article I authority, would have the right to set boundaries on military actions?

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.

FEINSTEIN: I think this is a real point of issue and could be of issue in the future. And because of this case, I'd 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'm going is, do you believe the Congress would have the authority under Article I to do so?

MUKASEY: I think that would very much depend on how it was done and what it concerned. 

MUKASEY: And the learning curve that I've had up until now has been very steep. And I think it's -- so, it's not in my interest and I think it's 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 mean, I'm sure we all want that learning curve to continue...

FEINSTEIN: I understand that.

MUKASEY: ... after I leave this hearing room if I'm confirmed.

FEINSTEIN: 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?

MUKASEY: I think the president does advise the Congress of the intentions and actions. I think that, obviously, very much depends on the level of detail we're talking about. The president would be, at the very least, unwise to undertake major initiatives without making sure that everybody's 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's not helpful.

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 number eight of eight priorities, while in the last two year, 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's 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'm 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-sized city in this country, there are, in fact, operative gangs that practice violent crime.

So, the question I have of view is, would you make overseeing these priorities a priority of yours?

MUKASEY: I certainly will. And I will look at the priorities and I'm obviously particularly interested to find out what the other seven priorities are.

MUKASEY: But there is no excuse for making violent gangs other than a very substantial priority.

FEINSTEIN: 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's U.S. v. New York Police Department. It's 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 reflect 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, charged with making false statements, and eventually fired.

The assailant was not interviewed until eight months after the attack and two months after Karen Sorlucco 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 of time, is this a showing of your views or do you see it as an unusual case? 

MUKASEY: It is -- to say the very least, it is a stark euphemism to say that it's 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. 


MUKASEY: I'm sorry.

LEAHY: No, I'm sorry. Go ahead. Finish...

MUKASEY: I guess that's the kind of narrow answer to the narrow -- to the narrow question.

MUKASEY: But there's a much broader question, which is the question about harbinger and basically where do I stand on civil rights and on -- 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. At that point I pushed back and said," I've had enough," and I withdrew.

That's 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's possible to imagine.

LEAHY: We can go back onto this same question, obviously, in Senator Feinstein's follow-up time.

I agree with what you say about the civil rights. There are going to be a number of questions on that because of some of the things that have been done there.

LEAHY: What I intend to do is have Senator Grassley ask questions. We're going to try to stick within our time. Then go to Senator Feingold. We will then close -- recess with Senator Feingold and go back to -- if I'm not here, Senator Feingold, if you'd please recess the...

FEINGOLD: Thank you, Mr. Chairman.

LEAHY: ... hearing until after the matter of the Dalai Lama? That will give you plenty of time to relax with your family and have some lunch.

Senator Grassley, go ahead, sir.

SEN. CHARLES E. 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'd probably ask questions on those issues for the record and so, basically, I'm going to stick within that guideline.

If I throw you a curve ball, welcome answers in writing if you don't feel comfortable.

MUKASEY: I will try to hit a curve ball.


One topic that's near and dear to my heart, as I told you, is federal False Claims Act. This was a law signed by President Lincoln, but was intended to recover government money lost as a result of war profiteers who sold government faulty goods during the Civil War.

It needed to be updated, and so in 1986, I passed a False Claims Act to do that. The goals of that amendment of '86 remain just as important today are just as important as they were 150 years ago. We've recovered $20 billion of money -- taxpayers' money that would have otherwise been lost and gone forever.

And in fact, I think maybe the -- you know, just -- the deterrent effect probably has saved a lot more money on that, but you can't measure that. 

The bottom line is that there's tremendous benefits to the act and to its aggressive enforcement.

Unfortunately, False Claims Act has been under constant attack since President Reagan signed it in '86. Opponents have tried to gut it through work of Congress. They've tried to get the Justice Department to slow down enforcement. And they brought lawsuit upon lawsuit to water the act down in the courts.

Well, in a 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.

GRASSLEY: Judge, if you're confirmed, what actions will you take to support and strengthen the Justice Department's program to prosecute false claims cases?

MUKASEY: Well, as you know, the mechanism for implementing the 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 to 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 treat it -- 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 effect.

GRASSLEY: I think you've 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.

MUKASEY: Not going to bow to pressure from any direction to weaken the act. 

GRASSLEY: Thank you. 

Would you pledge to work cooperatively with qui tam whistle- blowers? I think you've answered partly that by saying you are going to consider these cases and they had to be there for you to consider.

But would you cooperate with qui tam whistle-blowers that file false claims cases and ensure that those cases are reviewed promptly by the Justice Department and don't languish under seal, because that's a problem we've come up against?

MUKASEY: I'm going to try to make sure that they get reviewed both promptly and fairly.

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?

MUKASEY: I'm 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's an important thing to find out.

GRASSLEY: Well, at least you know that's 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, 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 determined that Amtrak employees weren't government employees within the terms of the act.

Earlier this year the Supreme Court limited the definition of "original source" -- quote/unquote "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 United States government and the qui tam relators who seek to recover government money lost to the fraud, thus weakening the effectiveness of the law. 

In order to fix this inaccurate judicial interpretations, I've introduced S. 2041, the False Claims Act Correction Act of 2007, with several of my Judiciary Committee colleagues. I've asked the department to commit -- to comment on this legislation.

However, Judge Mukasey, I want to hear from you that you'll support my efforts to ensure the False Claims Act is clarified to meet its original goals of the '86 amendment. 

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 '86 amendments?

MUKASEY: I will certainly work with you to do whatever we can do to make sure that qui tam legislation is enforced the way it was meant to be enforced.

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're sworn in?

MUKASEY: Obviously, I'm going to have to find out where within 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's necessary.

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 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, 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 response -- more accountable to the American people?

And I'm not asking of your department anything I would ask of any department head.

MUKASEY: You have that assurance.

GRASSLEY: As part of my ongoing oversight efforts with the department, meaning your department, its subordinate -- and its subordinate agencies, such as the FBI, I've 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, quote/unquote, "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 issuancy of exigent letters in connection with the use of national security letters. 

Although I sent this request to the FBI director on March the 19th, 2007, I've got nothing so far, despite assurances from the FBI officials to my staff that they were given -- quote, "given to the department" -- again that word -- "for clearance," end of quote; another stonewall.

GRASSLEY: I guess it's like saying, Mr. Mukasey, can you tear down that wall? But, anyway, waiting over seven months for unclassified e-mails to such an important oversight matter is unacceptable. I'm 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 to both the department and subordinate at DOJ agencies, including the FBI, are fulfilled in a timely manner and do not languish in the clearance process, or aren't going to be stonewalled?

MUKASEY: I'm going to assure that there isn't going to be any stonewalling. 

I ought to point out, though, that in particular as to the NSL issue, there are ongoing investigations there. There's been an investigation by OIG but there's more investigating going on, as I understand it. And that may be part of the reason why it's not quite as easy as it may seem to clear matters because that investigation has to be pursued.

But I will certainly look into what the requests are and whether the information can be provided in some convenient form that doesn't in some way step on the ongoing investigation.

GRASSLEY: Well, it seems 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 seemed to me like at least we should have been told if that's what holding them up. We told nothing.

Judge, will you review the clearance process at the department -- this may even be more important, if we can get -- if there's something screwy about this clearance process, to ensure that it's not just a way to put up road blocks and further delay production of documents to Congress?

MUKASEY: Certainly going to review the clearance process to make sure that it is in fact a clearance process and not simply a black hole.

GRASSLEY: Will you ensure that my outstanding -- well, you've answered that.

Judge Mukasey, I've been an outspoken advocate for whistle blowers because I value their candid, unfiltered information that they provide to Congress about executive branch activities. At the Justice Department I've watched carefully the treatment of whistle blowers by the FBI and have been provided assurances that past practices of retaliation against whistle blowers 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 whistle blowers.

One, could you please address what safeguards you would put in place to ensure that all FBI whistle blowers are not subject to retaliation, be it whether it's the OPR or elsewhere within the FBI or the Justice Department?

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.

GRASSLEY: If you keep making that statement within the Justice Department, you'll find out a lot of things that are wrong, but you'll find out also that there's a lot of retaliation. But you might discourage a lot of that retaliation, so I appreciate very much your comment.

I've learned that the FBI and the Justice Department Office of Inspector General have been using an overly broad nondisclosure form, and I think that this was supposed to -- this is what I'm talking about here and my staff will bring that to you.

Let me start over again. I've learned that the FBI and the Justice Department Office of Inspector General have been using an overly broad -- my time is up?

SEN. RUSS FEINGOLD: It is, Senator Grassley.

GRASSLEY: Yes, I'm sorry.

I'm going to ask you to respond to these questions in writing because I shouldn't abuse my time. And thank you very much.

MUKASEY: Thank you very much.

FEINGOLD: Thank you, Senator Grassley.

And I thank the chair for allowing me to get in 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 don't agree with everything you're saying, this is a much more responsive witness and nominee than we had in the last instance. And I am grateful for that and for that 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, quote, "Agnostic," unquote, about whether the president can authorize violations of a statutory criminal prohibition and 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're, of course, better off if we don't have conflicts in this hearing. But conflicts do arise, conflicts have arisen. And the United States Supreme Court has serious and detailed jurisprudence in this area.

I don't think it's simply a matter of there being gray areas. I think there is a record and there are cases that help inform us, and I'm sure you, in your experience and excellent record, would agree with that.

Now, you've had several weeks to consider the question I asked you, so I'll 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?

MUKASEY: The reason for my expression of agnosticism -- I thought it concerned the terrorist surveillance program -- was that I am not familiar with that program. I can't 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.

FEINGOLD: I think, with regard to the law, though, we can talk about the warrantless wiretapping program without you knowing all the details. I mean, 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?

And that seems to me to be something you can answer.

MUKASEY: I think that under that analysis, the president's authority, to the extent that is not a war-based authority directly involving a war, is at its lowest ebb.

FEINGOLD: In any event, wouldn't it be at its lowest ebb, in this circumstance? 

MUKASEY: It's certainly at its lowest ebb because it doesn't have congressional authorization.

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've suggested it is, is at its lowest ebb, under Justice Jackson's test?

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, in Judge Bell's view -- and it's one I share -- I think he would have the authority to act. 

I think it's 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's not.

But there's 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.


FEINGOLD: I guess I'd say, Judge, in light of the Jackson test, which you've 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, quote, "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 isn't -- this is, in fact, right in the core of being about the 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? 

MUKASEY: I think, in large measure because I don't know what the program involves and where the statute leaves off and the program begins, I have to limit my response to what it's been up until now.

FEINGOLD: Well, for the moment, I'll 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 to be the case is that the statute is exclusive in this area and that it does control.

You've 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?

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 was...

FEINGOLD: Well, what award was that?

MUKASEY: It was the Learned Hand Medal of the Federal Bar Council, and award of which, I will tell you, I'm very proud.

FEINGOLD: Absolutely.

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...

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?

MUKASEY: I conducted my research in writing the piece on looking at provisions of the statute and at reading some of the criticisms that had been leveled at it that I thought were not justified.

FEINGOLD: Well, did you rely solely on administrative -- administration documents on the Patriot Act, or did you go into some independent materials?

MUKASEY: I didn't have administration documents relating to the Patriot Act. I had the Patriot Act.

FEINGOLD: So you pretty much had just the words of the statute and some articles about it that were critical that you didn't agree with. 

MUKASEY: Correct.

FEINGOLD: Well, my sense is that your speech didn't 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 actually you would be correct in pointing out that sometimes didn't have to do with the Patriot Act. That's 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'd 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've answered that it was simply the language of the statute. But I'm wondering if there was anything else to it.

MUKASEY: The language of the statute and the criticisms. I sat and composed that in my home. I didn't have access to any other material.

FEINGOLD: I guess I -- you know, that concern me, because I think there's very serious debate on both sides on this issue. And these provisions are -- have been proven in a number of cases, and in particular with regard to national security letters, a really frightful report from the inspector general indicating that the failure to nail down the language properly led to enormous abuses -- suggest that the concerns that were raised by critics were real and actually had merit.

On more than one occasion, you've described concerns about civil liberties implications of the Patriot Act as, quote, "recreational hysteria," unquote. That language goes beyond, in my view, 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, quote, "chasing phantoms of lost liberty," unquote.

And, frankly, I voted for Attorney General Ashcroft, and I agree with Senator Schumer's remarks that he's proven on a number of occasions to have stood up for the rule of law in tough situations. 

FEINGOLD: 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?

MUKASEY: I certainly don't 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.

FEINGOLD: And I think there's some validity to that. But I would hope you acknowledge the validity of my concern that, prior to this moment, have you ever publicly acknowledged that not all critics of the Patriot Act are engaging in reflective or -- excuse me, reflexive or recreational hysteria?

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 statue 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.

FEINGOLD: Thank you, Judge. I'd like to sort of finish by asking you just questions about the Protects 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?

MUKASEY: I'm familiar with the fact that there is a controversy. I can't say that I'm up on the details of it. I know there's a controversy.

FEINGOLD: Are you aware of some of the concerns...

MUKASEY: I'm aware of some of the concerns.

FEINGOLD: If you take over the reins of the Justice Department, are there any particular questions you're going to ask about its implementation and or any particular concerns you have heard that you will want to try to address?

MUKASEY: Obviously, I'm going to need to know what the details are of the program. And I'm 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 can't do it alone. Those are the details I'm going to need to find out -- the what and the how.

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?

MUKASEY: I will.

FEINGOLD: Thank you, Judge. You've been very patient this morning. And at this point, we will -- the committee will stand in recess until 2:30.

MUKASEY: Thank you very much.


LEAHY: 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, and -- with the questions of Tibetan repression versus Tibetan autonomy -- and I applaud his speech.

Elie Wiesel, the other Nobel laureate -- 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.

SEN. SAM BROWNBACK: Thank you. I was at the ceremony, as well, and it was quite moving to have two Nobel peace laureates in the same room and at the Capitol. It is quite a day.

Judge Mukasey, I want to go to a couple of topics. And the first one I want to go is, I think, the lead issue you're going to be wrestling with as attorney general, presuming you're confirmed -- and I believe you will be confirmed -- and I want to congratulate you, in the hopes that that will take place.

But I want to look at this particular of the interaction between intelligence-gathering and civil liberties, in the United States.

And that's the issue that this committee has been wrestling with, some time, about and you've gotten different snippets and bites of it. And you have been a trial court judge on two of the lead cases, in 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 junction -- 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 and desire and requirement that we protect the civil liberties of the people of the United States.

And this is a tough -- it's 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 continually have emphasized the importance of the rule of law. And you've discussed controversial Patriot Act provisions. You didn't rely on the expansive theory of the executive branch, as I read it, but instead looked at the practical impact of each portion of the statute.

BROWNBACK: In these discussions you've balanced the national security gains from such provisions against any harms to privacy and civil liberties. You've 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?

MUKASEY: Yes, it does.

BROWNBACK: And 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 people of the United States?

MUKASEY: Yes, absolutely.

BROWNBACK: On September 26th, a district judge in Oregon struck down two provisions of the Patriot Act, dealing with searches and intelligence gathering, and I'm sure you followed the various legal rulings on provisions of intelligence gathering and the Patriot Act.

What's your response to this ruling, and how would you deal with it as attorney general?

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. And I assume, without knowing, that that decision will be appealed to the 9th Circuit, if necessary to the Supreme Court, and that 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.

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?

MUKASEY: There are none that come to readily to mind. 

MUKASEY: 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 that the best policy is to be guided by general principles, but to wait for the 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.

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 you could illuminate for us your thinking when you balance these issues of security needs of the American people and civil liberties requirements under our Constitution?

MUKASEY: I think we need to have a very clear-eyed idea of what is is we're protecting when we talk about protecting civil liberties, as well as to recognize the need to gather intelligence. 

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 mine run (ph) of cases and that very often we're not talking about anything that is different in kind from what is done in conducting investigations generally.

BROWNBACK: So it's basically extending in the intelligence gathering operation the same, both requirements and protections, as we do presently under criminal law investigations.

MUKASEY: Correct.

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. 

MUKASEY: Correct.

BROWNBACK: And that would be a basic mindset you would bring to this field and area.

MUKASEY: It is a basic mindset that I do bring to it.

BROWNBACK: I want to take you to the trial of -- the blind sheik trial of 1993, the World Trade Center bombing and related terrorism plot.

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.

The Second Circuit explain in affirming your ruling it would not constitute a defense that Abdul Rahman was justified within the framework of Islamic law. I believe you remember this piece of that case.

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 were not -- under Islamic law were totally irrelevant for that. 

The issue wasn't Islamic law, the issue was what was in his mind and what wasn't.

BROWNBACK: And that's the issue that I want to get at, if we can. And it may be a difficult thing to discuss or get at. But certain countries' courts have held that sharia, or Islamic religious law trumps civil constitution. 

There's been a case in Malaysia. There was a case earlier this year in Germany, there a Frankfurt 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.

BROWNBACK: Case aroused considerable controversy in June. The Justice Ministry and 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?

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.

And whatever may be the religious requirements of any group, we don't create enclaves where a different law applies, a 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.

BROWNBACK: Good. And I think that's the right way to look at it. It just -- 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 -- that 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 please to see your interest and willingness to deal with some of that, because it's 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 -- but 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 just -- it's in a high-cost revolving door, a very costly system. And 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 five years of groups that work within the proposals.

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.

MUKASEY: I certainly agree. And I think we need to stop a system where prisons are, essentially, an institution of higher learning for criminality and where recruitment for criminality goes on. That's not something we can afford, because these people, after they go on, are going to come out some day.

MUKASEY: And when they come out, we want them to come out as productive citizens. And I know that it's hard to generate popular support for prison programs. It's often seen as kind of a 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.

BROWNBACK: Thank you.

Thank you, Mr. Chairman.

LEAHY: Thank you very much.

Senator Schumer, you're recognized for 12 minutes.

SCHUMER: Thank you, Mr. Chairman.

And thank you, Judge Mukasey. 

And 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 discussion -- he didn't say this, but I imagine you might even have at law school. I know he was a professor there.

And I told him that's great, and I think it speaks well of him. And that's what many of us felt was so sorely lacking at the Justice Department for so many years. And hopefully there'll be lots of honest debate and discussion with the Congress as we move forward.

First, I'd like to talk about judicial independence. And 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. And 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'd you think of this book, Judge Mukasey?

MUKASEY: I thought it was superb. I mean, talk about couldn't put it down. I was in a way sorry when I finished it.

SCHUMER: Let's hope he doesn't have to write another one, or you don't have to write one like this.

MUKASEY: I don't have a book in me.


LEAHY: You may after these hearings.


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' explicit approval. 

And 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 asks, he says, "Why don't we just go to Congress and get it to sign off on the whole detention program?"

SCHUMER: 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?

MUKASEY: As a general matter, certainly, I do.

SCHUMER: OK. And do you commit to working with Congress, before moving forward with any proposal like national security courts?

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."

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?

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...

SCHUMER: I'm not asking...

MUKASEY: ... in the future.

SCHUMER: ... the specifics. I'm just asking if it's your opinion that, if the law ignores FISA or stretches it in a somewhat contorted way, would you suggest going to Congress?

MUKASEY: I would certainly suggest that we go to Congress whenever we can. It always strengthens the hand of the president.

SCHUMER: All right. Thank you then.

Jack Goldsmith also writes. He said, "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" -- these are Goldmsith's words, complete -- "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 these discussions. Do you agree that unilateralism is a bad idea?

MUKASEY: Unilateralism, across the board, is a bad idea.

MUKASEY: There are powers inherent in each branch, here and there.

SCHUMER: When you're in a room -- when you are in the room, the room that Goldsmith was in, will you go along with a unilateral approach?

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 in 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.

SCHUMER: Thank you. I think Goldsmith would agree with that. I think many of us on both sides of this -- on both sides of the aisle in 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, quote, "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 -- you assured me yesterday 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.

MUKASEY: I will.

SCHUMER: Detention policies.


SCHUMER: And torture policies.


SCHUMER: Thank you.

MUKASEY: Well, torture policies -- I wouldn't -- you characterize them as torture policies, what you're telling me is a policy on doing something unlawful. And I don't know of any such policy. And, candidly, I hope not to find one.

SCHUMER: OK. That's fair enough.

OK. And if you find in this review a problematic opinion or legal justification, will you correct or -- modify it, correct it or withdraw it?

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.

SCHUMER: I understand. But let's say your view is that it doesn't have the legal justification asserted in the opinion.

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.

SCHUMER: All right.

And will you do so publicly and inform the Congress?

MUKASEY: I think I have to be very, very careful about what I do publicly and what I undertake to do publicly and what 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 or...

SCHUMER: If it's not going to create any adverse interest, if possible, will you do it publicly so we're all stronger?

MUKASEY: I think it's important that government explain itself to its citizens and to the Congress, and that's what I think, and that's what I'm going to continue to think.


Next, I'd like to move on a little independent -- 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?

MUKASEY: I thought it was admirable and complete.

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?


SCHUMER: And even when people are suggesting, as apparently David Addington has before, that, quote, "blood will be on your hands"?


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?

SCHUMER: We've had this instance, as you know.

What will you do?

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.

SCHUMER: Thank you.

OK. This is executive privilege. And 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.

And 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. attorney's investigation.

And 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, being 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?

MUKASEY: I looked at the letter, quickly, and I've thought about it a bit. I don't know the facts relating to -- was it the chairman of the New Mexico Republican Party?


MUKASEY: I don't know who called whom, and why. Obviously, within the executive, there has to be the ability to gather facts from both 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.

MUKASEY: 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.

SCHUMER: OK. Keep huh'ing on that.


SCHUMER: Thank you, Mr. Chairman.

LEAHY: Thank you.

And to follow on Senator Schumer's saying about the question of torture and what you'll find, whether you're going to -- if you find something that you think is inappropriate, whether you will change it, trust me, if you're confirmed, you're going to get an opportunity to discuss this with us further. And we will be having another hearing after the 1st of the year. And we'll give you -- by then you will have had a chance to see all these things. And we -- I suspect you'll find folks on both sides 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 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?

SEN. JOHN 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 United States Supreme Court by President Bush.

But I have to tell you that since I've become better acquainted with your record of public service and your professionalism, I've grown in admiration of your fine record. And I congratulate you on this nomination. 

MUKASEY: Thank you.

SCHUMER: Oh ye of little faith.


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, D.C.

I do believe you when you say that, and you believe it's about serving your country. And I respect that.

CORNYN: And I want to just tell you that, as I was reading through some of the things that you've written, I was, as a member of what we call in the Congress, we call 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 comment, famous comments in that speech that the spirit which is not too sure that it's right is one that we ought to emulate.

But you were talking in this article, in the speech, about the Patriot Act, a statute, which you said that before attacking the Patriot Act the critics ought to read it, and where you noted that it had become the focus of a good deal of hysteria, some of it reflexive, much of it, you said, recreational.

And I was reminded once again that your experience in a 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, and particularly in hearings before Congress, even though witnesses take the oath, things that 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 here is, you point out that the Patriot Act broke down the wall between intelligence gathering and law enforcement and said that the previous decision establishing that wall, preventing the sharing of information, had been a stark misreading of the law. 

And I wanted to ask you about, 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?

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.

MUKASEY: And I'd 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.

CORNYN: And of course, in a criminal law context, usually -- almost always, you're punishing an act after it occurred. And 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, 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...


CORNYN: ... and ultimately found its way in the hands of -- well, 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?

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 afterward -- but it showed up in Khartoum in the hands of Osama bin Laden, who happened, as it was -- as it happens -- 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.

CORNYN: Let me pivot, quickly here, since time is short, to the reporter shield law that's been proposed to Congress. There's a lot of things that members of this committee agree on. The chairman and I have been working closely together on reform of the Freedom of Information laws -- first time in a generation -- and I trust we'll be working with the Department of Justice in 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. But my concern is that the definition is so broad that it would cover virtually anyone who decides to publish information.

For example, consider a young jihad enthusiast who uses the Internet to spread Osama bin Laden's message. The blogger posts an English translation of a scholarly treatise advocating violent jihad and lists hundreds of links to secret Web sites where his readers can obtain the latest insurgent videos from Iraq.

As you may know, Judge, this is not a hypothetical situation. This is a 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, "A Internet Jihad Aims at U.S. Viewers."

My concern is that, if we pass a reporter shields law, which I voted for out of the committee, but with the caveat that I'm concerned about the breadth of that definition, 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?

MUKASEY: That's one, but only one of my concerns.

CORNYN: And would you care to share with us your other concerns?

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 Tas (ph) reporter, a reporter for the then-Soviet news agency Tas (ph).

And it was very clear, at the time, that many or most Tas 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 Shinwa (ph) -- I don't know that for a fact; it's just a belief, based on my own experience -- and that 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.

MUKASEY: So that's one -- 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.

And I don't want to have to look at retrospect. So I'm uneasy about that, too.

CORNYN: Let me ask you in the short time I have remaining, you're no doubt familiar with a Project Exile, which focused on gun crimes and prosecuting gun crimes under the federal laws with mandatory minimums for carrying -- felons and others carrying guns illegally, and going after the gun crime as a discrete offense and punishing that in addition to whatever other crimes were being committed. 

That federal program gave rise to something in my state, when I was attorney general we called Texas Exile, which 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 with the Department of Justice, and ask your -- 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.

CORNYN: Will you give me that commitment to work with us on that?

MUKASEY: I sure will.

CORNYN: Thank you.

Let me give you one quick caveat in the second -- one minute I have left.

There is sort of an anomaly, and this came to light in the case, the prosecution of two Border Patrol agents who shot a drug dealer along the border in my state, Texas, and because they discharged a firearm in the course of their -- of the activities for which they were convicted, they received an automatic minimum 10-year plus-up to their prison sentence.

And 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 just ask here today simply whether you would agree to work with us, the Judiciary Committee, to look at that, to see whether we ought to revisit it, and to whether it does unfairly impact law enforcement officials who might -- who do have to carry and sometimes discharge their firearms in the course of their lawful duties.

MUKASEY: That was a very difficult case, and I will, yes.

CORNYN: Thank you very much.

Thank you, Mr. Chairman.

LEAHY: Thank you very much.

And just we'll know, the list is on this side we have Senator Durbin, Senator Whitehouse, Senator Cardin. And on the Republican side we have Senator Graham, Sessions and Kyl.

We will alternate back and forth. It'll 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 question, we will then recess over until tomorrow. I'll consult with Senator Specter on a time that will begin, but we'll also make sure, of course, we let you know.

Senator Durbin?

SEN. RICHARD J. 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. Glad that they're with you today.

DURBIN: Several weeks ago, you were kind enough to come by my office, and we had a short time to have a conversation. You've 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. And you said at one point, quote, "there's a whole lot between pretty please and torture," and that you suggested that coercive techniques, short of torture, are 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?

MUKASEY: It is unlawful to subject detainees to cruel, inhuman and degrading treatment. There's no doubt. And I don't think that's inconsistent with what I said.

DURBIN: Then we talked about the McCain statute, which I cosponsored and it had over -- 90 to 9 votes in the Senate. And 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 a statute.

I would like some clarification on that, if you would, please.

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 are some -- there is some authority that the president has that is inherent in a president, and that he has, willy-nilly. There are -- there have been -- 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 or the president's authority.

The most notable among them, 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 that each branch has understood that push can't come to shove on certain issues, that we have to try to work it out in 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.

DURBIN: For the record, do you believe the McCain torture amendment or statute is an unconstitutional infringement on the power of the president?

MUKASEY: I do not.

DURBIN: I also asked you about Guantanamo. You referred to it -- a colorful phrase, you referred to it as, quote, "a fright wig," used by critics of the administration and defended Guantanamo on the grounds that detainees receive, quote, "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.

MUKASEY: My feelings about Guantanamo as a place, which I have not visited -- I admit 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.

MUKASEY: 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 and we've got to get our hands on 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.

DURBIN: I suppose mistreatment 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 this detainees without charges for years and then, in many cases, releasing them without charges is a form of mistreatment?

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 wound up cutting our nose off to spite our face.

DURBIN: I won't go any further because I think your responses to Senator Cole's questions were very clear and 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 impending 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, would you -- I might also add one area that you're probably aware of -- the Office of Professional Responsibility initiated an investigation into the office -- Justice Department's offices relative to the NSA program that, in an unprecedented move, President Bush personally denied security clearances to Justice Department investigators and blocked the investigation.

DURBIN: Documents provided to the Senate Judiciary Committee suggest that 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's inappropriate -- it would be inappropriate for the Senate to confirm a Justice Department nominee who's under investigation by the Office of Professional Responsibility?

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. 

DURBIN: I don't want to catch you by surprise then. I'll send a follow-up 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.

MUKASEY: That's not something I can answer in the abstract. I need to see what the investigation is about. 

DURBIN: I understand that. 


MUKASEY: And 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. 

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.


DURBIN: In fairness.

I have a very few minutes, and I wish I had much more time for this particular question.

As the chief law enforcement officer of our nation, as attorney general, you'll 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.

DURBIN: 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?

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...

DURBIN: Move toward...

MUKASEY: ... or even in my tenure. I believe that the Civil Rights Division of the Justice Department -- and I was starting to say this to Senator Feinstein when our time ran out, and I'm glad you asked about it, because now I get a 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 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.

And we have to make sure that 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 their mandate and that they don't forget it.

DURBIN: I might say that is one division which many of us believe has very low morale, at this point, for a variety of reasons. And I share your feeling about the important mission that they have. And I certainly hope that you will dedicate yourself to restoring morale and giving them the tools and support they need to restore the reputation of that important division.

MUKASEY: Can I 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 and people within the department. And those are the people who, I think, we're going to depend on.

DURBIN: Perhaps it's a hopeful view, on their part, of your nomination. Thank you very much.

LEAHY: Thank you, Senator Durbin.

LEAHY: Senator Graham?

SEN. LINDSEY GRAHAM.0: Thank you, Mr. Chairman.

Judge, I'm 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.

MUKASEY: If I've got to pick between the two, they're an act of war.

GRAHAM: Well, I agree with you. So we're in good standing with me, already, you are.

See, I think we're at war. And I think the law that one would apply if you looked at this as a war would be different than domestic criminal law.

And I've been a military lawyer for 25 years. And I'm very proud of our military legal system. And 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.

MUKASEY: If what they meant is that it applies to interrogation, then it clearly applies to interrogation. I...

GRAHAM: Well, 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.

MUKASEY: If that's their reading on something other than a procedural basis, and...

GRAHAM: Well, I think that's their substantive holding, but 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.

GRAHAM: Are you familiar with that?

MUKASEY: I know of that. Yes.

GRAHAM: Do you think that's a lawful thing for Congress to do, to place restrictions on our military when it comes to how they will treat somebody in their capture?

MUKASEY: On our military?

GRAHAM: Yes. If a crime...


GRAHAM: 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.

And I just wanted to acknowledge and I think that is a power Congress has and we're going to have to live within that.

The Military Commissions Act also regulates the detention and the trying and the treatment of enemy prisoners. That's a congressional enactment.

Do you agree that that's a valid legal document?


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 degrading treatment.

You consider that a valid source of law?


GRAHAM: OK. We have many international treaties that regulate our contract because we're signatories to those treaties. Do you think it's incumbent upon us to live up to those treaty obligations?

MUKASEY: I think it's incumbent upon us to live up to them -- question of whether they're self executing or not is a very delicate question and I'm not prepared to go...

GRAHAM: 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. And I really applaud your testimony earlier when you said that America is at it's strongest, not only from a legal point of view, but from just a 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?

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 under an appellate level, more substantial than...

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 V, that is the 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.

GRAHAM: And I object to that. 

How long have you been a federal judge?

MUKASEY: I was a federal judge for 18 years and a bit -- almost 19 years, actually.

GRAHAM: My concern is that, if we allowed every enemy combatant to have a full-blown habeas trial, we would be giving Al Qaida and other groups that fall into the designation more rights than the Germans and the Japanese, and that we would be creating chaos for our country in the war on terror.

And I will read a quote, here, from Justice Jackson, in the Eisentrager case. Are you familiar with that at all?


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."

GRAHAM: Do you associate yourself with that concern?

MUKASEY: Yes, I do.

GRAHAM: Now, as I understand the Military Commission Act, every detainee at Guantanamo Bay will have access to federal court. Is that your understanding?

MUKASEY: Eventually, after the CSRT process is completed.

GRAHAM: And the D.C. 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?


GRAHAM: And that's the Bismullah case. Is that correct?

MUKASEY: I believe so.

GRAHAM: I have proposed for many years now -- and I will reassert this idea -- that one way to make the CSRT process better would be to provide military legal counsel to unlawful enemy combatants. How does that idea strike you?

MUKASEY: I don't know what the process is now. I certainly -- I mean, I said, when the -- in the Padilla case that, once you conceded that somebody had the right to file habeas, but there's no practicable way, particularly in that case, wanting to do it, other than through a lawyer.

GRAHAM: One of the practical effects of an enemy combatant determination is that that could be a de facto life sentence, because this is a war without a definable end. Do you agree with that?


GRAHAM: So we need to come up with a process that's a bit of a hybrid of the traditional law of armed conflict. 

I've also suggested in the past, and will suggest again in the future, that the tribunals in question, the Combat Status Review Tribunals, be managed by a military judge. Do you have a problem with that?

MUKASEY: I do not.

GRAHAM: OK. Well, we will be talking much further in depth about these issues, because they're new, they're novel, and they're important. 

And I would end with this, Mr. Chairman. I'm 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?


GRAHAM: And if you want to throw everything 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?


GRAHAM: Wouldn't it be nice to show Sunnis and Shias and all those who have grudges and seek revenge that there's a better way and there's no better for America to lead the world when it comes to the war on terror than 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 the 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?

MUKASEY: I do. I'm reluctant to add a footnote, but I have to.

GRAHAM: Please.

MUKASEY: And that is so long as we don't compromise our ability to gather intelligence as we do that.

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 detainees treatment, correct?


GRAHAM: Now, Sheikh Mohammed, 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 were evidence obtained through waterboarding, would you be comfortable with that evidence being used in a military trial?

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...

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 a prosecutor to hand a document or a piece of evidence to the jury marked "classified" to be considered on innocent or guilt and never shared with the accused because of national security concerns.

My fear with 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?

MUKASEY: I agree that it can.

GRAHAM: You're in a unique position, in a unique time in American history, to make sure that we balance our national security interest against the values that make us stronger than our enemy. And I have every confidence you will do a good job.

Thank you. 

MUKASEY: Thank you.

LEAHY: If I might just use the prerogative of the chair, let me 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?

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 it has to do with timing.

LEAHY: And we speak about the -- if we had somebody who was a serial murderer, a U.S. citizen committed a series of heinous crimes, they obviously pose a danger to the population, but they were brought before you as a judge and said, "We have a confession, we tortured the person for three days," you would not allow that confession?

MUKASEY: Correct. It's out.

LEAHY: Thank you.

Senator Whitehouse?

SEN. SHELDON WHITEHOUSE: I thank the 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 in 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 United States 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. 

And 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 (ph), who led a very effective investigation into a criminal gang organization that was probably better covered by wiretap 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.

And I raise 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. And 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 United States Department of Justice to be in this country and what its posture should be to the American people.

MUKASEY: The role of the United States Department of Justice is to uphold the rule of law. This is a country that defines itself -- indeed, 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. And so the Department of Justice is central to this country's definition of itself. 

And I don't mean to put myself at the center of this. As I said in my introductory statements, this isn't about me. It's about the Department of Justice, and that's, to me, its role.

WHITEHOUSE: And what should the American people be able to look to it for?

MUKASEY: They should be able to look to it for the constant, impartial, principled application of the law.

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 decision-making that takes place in the Department of Justice is protected from political interference, personal animosity, other improper motivations.

And as much as I think there has been a failure of leadership at the Department of Justice, and wrought 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 White -- 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 United States 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, was his phrase, 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 and the exercise of its duties?

MUKASEY: To the extent that I've done any management, including the 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. 

MUKASEY: 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 a 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 United States attorney, is a body of United States 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.

MUKASEY: I will talk to not only the assistant attorneys general at the head of each of the divisions within the department, but also to 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.

And 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. 

And finally, I'm going to talk to, as I told Chairman Leahy when I met with him, I'm going to talk to this body and the members of it on a regular basis. I can't -- 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 mean, I would be foolhardy to abandon that kind of resource, and I won't.

WHITEHOUSE: I appreciate that you have said that, and I will be very interested in pursuing that process, because I think that the -- I think 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.

And 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. And 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.

WHITEHOUSE: And in that regard, two specific things I'd like to ask you about.

One is, there are 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 attorney generals, previous White House counsel. And 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 investigations.

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.

MUKASEY: Well, the question of contact with 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 officials or who purports to speak for an elected official about a case. And 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.

And 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.

WHITEHOUSE: And elected official includes the president.

MUKASEY: Most emphatically includes the president.

WHITEHOUSE: Very good.

And with respect to the manual regarding the disclosure or announcement of investigations immediately before elections...

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. And 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.

WHITEHOUSE: Thank you, sir.

Mr. Chairman?

LEAHY: Thank you.

We'll take about a five-minute break and then come back -- a five- or ten-minute break, then come back.


LEAHY: Judge, thank you very much. I must say your family are the most patient people. I was talking with Judge Freeh -- Louis Freeh -- a few minutes ago, during this time. We were -- he's patient and all your supporters here.

Senator Cardin -- speaking of patient people, Senator Cardin...


SEN. BENJAMIN L. 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. You might see whether our other members show up. But first, I want to thank you and I want to thank your family for your willingness to serve our country.

These our difficult times and we very much appreciate your willingness to step forward. And I must tell you, I've been 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 the -- 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 has a proud tradition of fighting to enforce anti-discrimination laws passed by Congress in areas of voting rights, or civil rights, or housing, and elections, employment -- so many areas that the division has been active over the last 50 years.

Now, I usually judge how a company or an employer does by the record -- the facts. Now, if the company tells me that they support diversity and open opportunity, even now, look at their employment practices and see very 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 six to seven 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 Anti-Trust Divisions that didn't know anti-trust laws, you wouldn't put somebody in the Criminal Division that didn't know criminal law.

CARDIN: You need somebody that has a background in civil rights and someone who's respected among the advocacy community. And I hope this will be a priority and I hope you will just maybe shed some light as to how you plan to proceed with the Civil Rights Division.

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 who 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; the president is.

But I was very well impressed with her and I would hope that someone of her caliber, if there is to be a change at the top in the Civil Rights Division, would step forward and undertake leadership of that department.

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 opening 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 a 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.

MUKASEY: The priorities of the Civil Rights Division are both the historic and the current. Historic, equal protection. It is a principle goal and a principle 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 addled people get it into their mind to do the same and you get an outcropping and proliferation of that sort of thing.

MUKASEY: And we've seen some of that, although I think it's being tamped down gradually. 

And 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.

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 a noose episode at the University of Maryland. And there's been throughout the country recently seems like a lot of noose episodes that are very disturbing. And 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 the Department of Justice can assist in local prosecutions in regards to hate crimes.

And I would hope that you -- I'm glad you mentioned it, and I can tell you, you'll have partners here in Congress encouraging you to be as aggressive as possible, because 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 2000-and -- I think it's '02 -- 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 I.D. Even though the secretary of state of Georgia could give us no examples of people using false identification or false persons to vote, the Georgia moved forward with the voter identification. 

CARDIN: 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 was -- 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 lower income, from being able to participate and vote.

So I guess my question to you is, will your priority in 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 I.D. law?

MUKASEY: Respectfully, I don't think it's an either/or proposition. I think that voter enfranchisement, voter empowerment, opening up the vote, 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.

The -- I guess one of the -- one of the joyful duties I had as a judge was swearing in new citizens. And a big part of the talk -- 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. And I -- but the 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.

CARDIN: Do you agree with the court decision in Georgia that said that the voter I.D. was the modern-day poll tax and that it would not be allowed to go forward within Georgia?

MUKASEY: I don't know whether that...

CARDIN: I think that's a direct quote from the judge.

MUKASEY: I think if -- if an identification -- 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 it's availability, then to say that it's the modern-day equivalent of the poll tax seems to be a little bit over the top.

CARDIN: If you're a homeless person, if you're a person with disability, if you're in an immigrant community, these I.D. cards are very difficult and sometimes offensive.

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. 

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 were 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.

MUKASEY: I certainly do.

CARDIN: Thank you. I appreciate that.

Let me just mention very quickly, we had some problems. There are 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 -- giving the wrong dates to voters, to tell minority communities -- 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 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 Schooster (sic) and myself have cosponsored. I hope that you would take a look at that.

MUKASEY: I certainly will. I certainly will.

I mean, that's flat-out fraud, and it's pernicious fraud.

CARDIN: Thank you.

Thank you, Mr. 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, new citizens, that have just been sworn in the right to vote -- I have found that I have 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 can go in and vote.

Senator Sessions, I'm sorry it took -- no, that did not come out of your time, I assure you.

SEN. JEFF SESSIONS: Thank you, Mr. Chairman.

And I think it's been a very good day, indeed, Mr. Chairman. You and Senator Schumer and others feels 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 life time. 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're 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.

SESSIONS: 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 sometime, "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?

MUKASEY: I do. And I'm particularly -- 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.

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're a man of the law. I like that phrase. I think that's what you need to be. You've certainly had great experience.

And 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 we sent them to execute, that they don't need to be denied wrongfully intelligence and support they need to be successful, that the American are entitled to a vigorous and effective defense against terrorism and people who would attack innocent men, women and children. And that requires intelligence and hard work. 

And some of these issues are tough. But we have a lot of legitimate power, and I hope that you will be effective in helping us articulate that so that we can be safer.

MUKASEY: Thank you. If I'm confirmed, I'm going to do my best.

SESSIONS: Thank you.

I agree, I think, with Senator Cardin that assembling a top flight staff is going to be a top priority for yours. You're going to have to work hard at that.

SESSIONS: I believe you can get those people. I think it'll be easier for you than your predecessor to attract the top-flight 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 in 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 create a wall between the FBI and CIA.

There was no disagreement that the law that prohibited our intelligence officials from negotiating and talking with our developing relations with people who've 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 ask you, would you be willing to tell us if we're trying to push something through here that's an error?

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.

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 two 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 are committed to is creating a lawful system of immigration.

Would you agree that's a good goal for America?


SESSIONS: I believe the American people would like to maybe hear you say how -- something about your commitment to that.

SESSIONS: 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 the chief law enforcement officer, your willingness to take the steps necessary to be effective?

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. It 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, or border problem, is kind of -- 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 and 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 has been successful in the bringing of some -- of misdemeanor prosecutions against people who are unlawful entrants.

And I think that's something we need to try to look at and follow up, if we have the resources.

I recognize it's 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 ourself more and more of what we've had, which is not satisfactory.

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 50 percent decline in entry, in another area 70 percent decline.

We 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 hard?

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. Department of Homeland Security has an important point.

Luckily, I know Secretary Chertoff from another movie, as they say. We go back a ways. So I can talk to him comfortably about that.

SESSIONS: Well, I do feel like that 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, that we are serious about it, and even misdemeanor prosecutions cn be effective. 

And I think the squeegee guys and 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?

MUKASEY: Yes, I do.

SESSIONS: It's not being effectively enforced now. The Department of Homeland Security inspector general said 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, quote, "The level of cooperation between DHS and DOJ is not what it should be," close quote.

So, will you take a leadership role to see if you can confront this issue and make sure that we're effectively identifying those who either -- who committed -- I'm not talking about entry crimes; I'm talking about violent crimes, drug dealing and the like once they'd been in the country.

MUKASEY: I will certainly take an active role. And I think there's a third party of 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.

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 the question one time of -- well, maybe we should stop the entries from those countries if they don't agree to take them back. I mean, you have to send a 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 (inaudible) prosecuted also. I trust you will not ignore that responsibility.

MUKASEY: I will not ignore it.

SESSIONS: Thank you, sir.

Thank you, Mr. Chairman.

LEAHY: Thank you.

Well, I think -- one, I must say, Judge, I've been pleased to see you engaged with senators from both sides of the aisle. I appreciate the succintness of your answers, but the clarity of them -- I think that we have a -- as I've 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.

LEAHY: A number of your answers have indicated your independence, your agreement that political influence has not place in law enforcement. Any of us who have had the privilege of serving in law enforcement know that that has to be the -- has to be the case.

And I think we agree the Department of Justice is far too important an institution to remain dysfunctional and ought to get back to its law enforcement mission.

Tomorrow, we will start when Senator Specter and I will have questions. There'll be no opening statements from anybody. I want to go back to the question of executive privilege, how are you going to test such claims, how you resolve them. 

And I've got a couple other matters that i want to follow up 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's had a long day. At least you have the adrenaline ability of being there, answering the questions. They have to sit there and think "Is he really going to say that?"



So I appreciate you being here.

And we'll stand in recess until tomorrow.



Oct 17, 2007 17:41 ET .EOF 

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