Senate Judiciary Committee Hearing for Nomination of Judge Mukasey as Attorney General, Day Two
SEN. PATRICK J. LEAHY, D-VT. CHAIRMAN : I would repeat what I said yesterday. I don't think it will be necessary. But, obviously, if there are any demonstrations, either for or against any position of Judge Mukasey, Senator Specter, myself, or anybody else in here, demonstrators will be removed. We want everybody to have a chance to have these hearings.
So, if I might start, what we'll do today, I'll ask a series of questions. Senator Specter will, and then we'll go back and forth in the usual order.
Judge, I want to go back to your last answer to me yesterday. And you and I discussed this a little bit outside.
You said a U.S. attorney could only refer a contempt citation of Congress to a grand jury as required by law if he or she believed reliance on the president's executive privilege claim was unreasonable.
I have some trouble with that. I don't think that rules on claims of privilege when they're raised by -- whether they're reasonable, but whether they're valid -- so let's talk a little bit about this. If Congress were to refer a contempt citation -- and there is a real probability there will be some as a result of the U.S. attorney scandal -- you're indicating that the U.S. attorney would undertake an independent analysis, assess the claim of privilege, in determining whether to bring the matter before a grand jury.
Is that right?
MICHAEL MUKASEY, NOMINATED TO BE U.S. ATTORNEY GENERALWell, let me flesh out a little bit what I understand the process to be and to have been, and maybe put a little bit of flesh on the bones of my answer.
As I understand it, when the White House gets a subpoena, they refer it to the Department of Justice, as, in fact, happened here, because I was shown the letter from Paul Clement relating to the assertion of the privilege.
If the White House then, relying on that letter, I mean, if the president, since he is the only person who owns the privilege, if he, relying on the Justice Department, asserts the privilege and there is, nonetheless, a contempt citation, we're in the position where the Department of Justice would have to prosecute someone who followed the advice that originated with the Department of Justice.
I am told that there are not one, but two, opinions of the Office of Legal Counsel, one of them from Ted Olson, and the other from a man I know and whose name I can picture, and I can't come up with it now, who served in the Clinton administration, who I referred to yesterday. I'm sure I'll think of it after I leave here.
But, anyway, there are two OLC opinions, saying that that would not be appropriate and...
LEAHY: What would not be appropriate?
MUKASEY: That for the U.S. attorney to prosecute someone for a contempt, based on reliance on an opinion letter that originated in the Department of Justice, would not be appropriate.
It would be different if a letter from the Justice Department said, You can assert the privilege as to A, B and C; you can't as to D, E and F, and the president were to say, I don't care. I'm going to assert it as to all of them.
LEAHY: But, let's...
MUKASEY: That would be a different story.
LEAHY: But in some instances, I think we're talking about some things that are somewhat ex post facto. You've got -- if you have, after the people are called, there's been no assertion of executive privilege. Now, they get called about their actions. They were involved in actions in which nobody raised any question of executive privilege, but all of a sudden, when they're called before a Congress under subpoena, now somebody starts claiming executive privilege.
Don't you have something a little bit different? Isn't it somewhat difficult to claim you're acting under an assertion of executive privilege when that issue comes up after the fact?
MUKASEY: I think the basis for the assertion has to be evaluated. And that basis often includes reliance on opinions of the Justice Department, because it's hard to envision that the White House -- although it's not impossible to envision -- I would think that the White House would seek the view of the Justice Department before it took any position on executive privilege. If somebody went off on a tear, without consulting the Department of Justice, I agree that would present a different set of facts.
LEAHY: We have a bit of a problem here, because some of these claims are extremely broad. You had people -- testified -- say, I never talked to the president, I never sent stuff to the president, the president never asked me any questions, never interacted with me, but I'm claiming executive privilege. Now, that seems kind of a broad claim.
MUKASEY: As you describe it, it sounds broad. But I think the executive privilege covers communications other than those directly to and from the president. There's a whole range of interests that have to be protected by executive privilege that include setting aside matters of national security, setting aside matters of current litigation.
LEAHY: What if the president...
MUKASEY: I'm sorry.
LEAHY: What if the president broke the law and somebody wanted to look into it, he said, Wait a minute, executive privilege. We can't have anybody talk about what I, breaking the law, because I claim executive privilege.
MUKASEY: I think part of the content of what it is in the communication has to be considered. There's a weighing process that goes on.
LEAHY: Well, we have, you know, the -- last July when the House Judiciary Committee was considering a contempt citation for a former White House official, somebody in the administration said a U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case, and that a U.S. attorney would not be permitted to argue against the legal opinion that the Justice Department provided.
Now, the law requires them to bring contempt charges to a grand jury. The White House says you can't bring it.
What do you do in a case like that?
MUKASEY: I fall back on two things. First of all, there are two OLC opinions -- and the name of that other person I couldn't think of before is Walter Dellinger -- that say that when the person asserting the privilege -- when the president, in the assertion of the privilege, is relying on a Justice Department opinion, that it simply can't be appropriate for the same department that offered the opinion then to turn around and prosecute somebody who followed it.
LEAHY: But the U.S. attorney doesn't follow a statute, which is very clear. How does the claim of executive privilege get evaluated? How does the conflict with the Congress get resolved?
MUKASEY: I think -- I have not read the text of the statute recently. I think it requires the convening of a grand jury. I don't know whether it goes so far as to say -- I don't think it goes so far as to say that a charge shall be filed or that an indictment shall be requested.
But I don't want to start parsing words delicately here, (inaudible).
LEAHY: Well, Judge, I'll spell this out a little bit more clearly with you.
But I would like your answer back, in writing, before this matter is brought up before the nomination is brought before the committee.
And, lastly, where Congress has clearly legislated in an area, as we've done in the area of surveillance with the FISA law, something we've amended repeatedly at the request of various administrations, if somebody -- if it's been legislated and stated very clearly what must be done, if you operate outside of that, whether it's with a presidential authorization or anything else, wouldn't that be illegal?
MUKASEY: That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.
LEAHY: Where does the president get that authority? I thinking of the Jackson opinion and others. Where does he get the authority if it's clearly enunciated what he can do, law that he signed, very clearly enunciated? I mean, the president say, This authority, I'm going to order the FBI to go in and raid 25 houses because somebody told me they think someone's there. We're not going to wait for courts, we're not going to do anything else. There's no urgency, but we'd just kind of like to do that.
MUKASEY: We'd kind of like to do that is not any kind of legitimate assertion of authority.
And I recognize that you've posited the case that way for a reason. But the statute, regardless of its clarity, can't change the Constitution. That's been true since the Prize cases. And it was true before that.
LEAHY: Can a president authorize illegal conduct? Can the president -- can a president put somebody above the law by authorizing illegal conduct?
MUKASEY: The only way for me to respond to that in the abstract is to say that if by illegal you mean contrary to a statute, but within the authority of the president to defend the country, the president is not putting somebody above the law; the president is putting somebody within the law.
Can the president put somebody above the law? No. The president doesn't stand above the law.
But the law emphatically includes the Constitution. It starts with the Constitution.
LEAHY: We'll go back -- we'll go back to this. I'm troubled by your answer. I see a loophole big enough to drive a truck through. And so, we'll go back to it. I don't think -- well, we'll go back to it.
Senator Specter, I'm sorry. I've gone over.
SEN. ARLEN SPECTER, R-PA. RANKING MEMBER: Thank you, Mr. Chairman.
Picking up on this issue, you testified yesterday that the president could not order torture, because it would violate a statute. In light of your answer a moment ago, would you say that is because the president does not have Article II power to protect the country to authorize torture?
MUKASEY: The president can't authorize torture because torture is barred both by statute and by the Constitution. And I'd be happy to walk back through that, if you wish.
SPECTER: Well, where in the Constitution is torture barred?
MUKASEY: It's barred by the Fifth, the 15th and the Eighth Amendments. The Fifth and the 14th Amendments bar conduct that shocks the conscience. They've been so interpreted.
SPECTER: Fine. I see your rationale. Let me move, on the same issue, to the Foreign Intelligence Surveillance Act, FISA. That provides that the exclusive procedure for obtaining a wire tap is to go and get a warrant for probable cause.
Was the president permitted to violate FISA because of his Article II powers or was his violation of FISA a violation of law?
MUKASEY: I'm not sure what violation it is we're talking about. If we're talking about the terrorist surveillance program, I think...
SPECTER: Talking about the terrorist surveillance program, which has warrantless wiretaps, contrasted with FISA which says the exclusive procedure to have a wiretap is to get a warrant.
Now, what the president did violates FISA. Is it justifiable on his Article II powers because -- well, that's the question.
MUKASEY: As I understand it, the president believed at the time and still believes that FISA was not the only applicable statute, that part of -- that he was acting with authorization under the authorization for the use of military force.
I understand that there are -- there is more than one view on that. He gave a long...
SPECTER: Judge Mukasey, I don't think anybody...
MUKASEY: I'm sorry?
SPECTER: ... ever really seriously contended that our resolution of September 14 authorizing the use of force encompassed a violation of FISA.
But let me move on. There are so many issues to cover that I want to move into another area. I think the record is fairly clear as to your views on Article II power and the statute and what you said on torture.
Before proceeding to some other issues, I want to make a comment about Steve Bradbury, who's the acting assistant attorney general, Office of Legal Counsel.
There has been a request. Some members of the committee, some senators have asked that his -- that he be withdrawn from that position.
I believe he's very competent. And I believe he ought to confirmed. And people disagree with the things he has done, but those acts on Mr. Bradbury's part have been carrying out the president's orders. And I think he has no choice on that.
And we've been into that in some detail with Attorney General Gonzales, when we had an issue about having an Office of Professional Responsibility see if the terrorist surveillance program was properly authorized under the law.
And Attorney General Gonzales said that was the president's decision, put it squarely on the president. And I think that's what's happened With Steve Bradbury.
And in June and July, there was considerable discussion about the telephone companies' responsibilities. And the committee, when I chaired it, was moving for subpoenas. And Vice President Cheney intervened and talked to members of the committee on the Republican side, without talking to me.
And I want to put in the record a letter I sent to the vice president on June 7, 2006, and his reply to me on June 8, 2006...
LEAHY: Without objection, it will be part of the record.
SPECTER: ... because they're relevant to my comments about Steve Bradbury.
Following those letters, Mr. Bradbury and my staff and I had very extensive conversations about legislation which I'd introduced to put the terrorist surveillance program under the Foreign Intelligence Surveillance Court.
And I found him to be very competent and very professional and very direct, and very able -- candidly, unusually so for someone in the Department of Justice.
And that led to a direct meeting I had with President Bush, who agreed to support the legislation which Mr. Bradbury and my staff -- Mr. Bradbury and others in the administration and my staff and I had worked out.
And I thought Steve Bradbury was A-plus. And I've had dealings with him since, on a lot of very complex legal issues, and I think he ought to be confirmed. Certainly ought not to be ousted.
Now, on to the issue of reporter's privilege. There is legislation pending which would give the reporters a qualified privilege. You and I discussed this informally. There have been many subpoenas issued in both state and federal courts.
And the Hearst Corporation summarized them as 97, the majority -- since 1991, the majority of those since the year 2000, many celebrated cases where people went to jail. The Barry Bonds case was celebrated as to contempt citation against reporters.
The number one case was the case of Judith Miller, who was kept in jail for 85 days, for reasons still inexplicable to me. She was asked about the source of a leak on the outing of Valerie Flame (sic). At the time, there was no national security issue because Ms. Flame (sic) did not qualify to make it a national security issue, and it was known who the source was, Rich Armitage, the deputy secretary of state.
And yet, she was kept in jail for 85 days, which led me to push the legislation. We're pushing it still.
The question I want to ask you -- and I understand that you're not in a position to make a final judgment, as you would if you were attorney general. But this matter will be coming up. We are pushing it for floor action.
And the question is, there's an exception for national security. And it is a matter of a judge to weigh whether the public interest in disclosure outweighs or does not outweigh the national security interest.
And obviously there are issues of national security that are very complex. but in our system, it is up to judges, federal judges, to make decisions. They deal with a lot of very complex issues in many, many contexts, highly technical matters.
And I'd like to hear your views on the subject, and, beyond that, to ask you to study in detail as to whether that isn't a sensible accommodation, because of the importance of news gathering, which has, in the history of our country, exposed corruption, misfeasance, malfeasance, waste, fraud and abuse.
In the line of the famous Jefferson statement, If I had to choose government without newspapers or newspapers without government, I'd take newspapers without government.
But we intend to push this. And we'd like to reach an accommodation that satisfies the administration on the national security issue.
What do you think?
MUKASEY: First of all, I have my own history of having represented reporters, of having asserted the New York shield law -- successfully. And, as you put it, it sounds almost innocuous.
But I have some anxiety when it does -- when it comes to national security cases, because although federal judges -- and I used to be one of those, too, and, therefore, I have high regard for them, first of all, it is not always possible to show precisely what the outcome is going to be from disclosure of confidential information.
The instance I mentioned yesterday involving serving a list of unindicted co-conspirators was one example.
Another example is a piece of testimony that was given in the Ramzi Yousef case that was tried before my colleague, Judge Duffy, where once somebody testified to somebody having delivered a cell phone battery to someone else.
That piece of testimony disclosed to Al Qaida that a line of communication of theirs had been compromised and, in fact, was one of communication that our government was monitoring and from which it had gotten enormously valuable intelligence.
That line of communication shut down within days of that testimony and I don't know what we lost. Nobody knows what we lost. But we probably lost something enormously valuable. What I'm saying is it's an imponderable.
Secondly, although federal judges decide complex and technical issues, when it comes to weighing intelligence, that's beyond complexity. They don't have available to them not only the training, but the resources that people involved in -- for example, the Department of National Intelligence -- the director of national intelligence has available to him to weigh issues like that.
They rely on their experience, their law clerks and what's submitted to them and their own common sense. That's enough in a mine-run of cases, because the worst thing that can happen is they'll make a mistake, it'll go up on appeal, and, has often happened to me, they get reversed.
The stakes are much higher when it comes to national security. And often, even a showing that -- of what the danger would be from the disclosure is, itself, as bad as the disclosure or worse. Then you get to the entirely separate question of who's a journalist and who isn't. We talked about that a little bit yesterday.
So, for those reasons, I've got misgivings about it. I do not -- the case that you described, there's an old saying that hard cases make bad law. The reverse may very well be true also; bad cases can make hard law. And I don't want this to be a situation where a bad case makes a hard law.
SPECTER: Thank you, Chairman. Just one final comment.
SPECTER: I understand the problem you articulate. But I do not think that we can stop short and say that just an assertion by the federal government of national security ends the matter. That is just too much authority in too blank of a way.
So, I would ask that you help us search for a way to accommodate the concerns you express, but at the same time, give a feel to a reporter, unless there is some very good reason not to.
Thank you, Mr. Chairman.
LEAHY: Thank you.
Before I go to Senator Feinstein, if I might, there's just one thing that bothered me in your answer. A number of things that bothered me, but basically, when I was asking about FISA and you were saying, Well, there's -- president, to protect the country can -- sounded almost like you could say could ignore the law or could authorize others to.
And yet, you said in answer to Senator Specter, Well, of course, the president would not be allowed to authorize torture because that's against the law.
If you use the same reasoning, why couldn't he say, I'm doing this to the national security matter to protect the country, so I'm going to authorize torture.
LEAHY: Why couldn't he do that?
MUKASEY: Torture violates not only the law, it violates the Constitution.
LEAHY: Well, so does a search and seizure without a warrant. I mean, the Constitution has pretty clear constitutional provisions on search and seizure.
MUKASEY: Fourth Amendment says that we're all protected against unreasonable searches. It then goes on to speak about what would authorize the issuance of a warrant and what would not. They are...
LEAHY: Probable cause supported by oath or affirmation particularly describing (inaudible) so on.
MUKASEY: Right. Those are two separate clauses. And there is -- we all, for example, go to the airport, and we are all searched without a warrant...
LEAHY: We also consent to it. We have a choice of doing that or getting on the plane. I'm talking about when somebody goes into my e- mails, goes into my telephone, and turns out thousands of times this is done for a period of several years, until the press report it, then they came back and said, Gosh, I guess we ought to amend the law to allow this, but they ignored a very specific law which said how you go about doing that.
I mean, how can the president say, Well, that's national security, so I'll authorize you to clearly violate a statute, authorize everybody from telephone companies on through, I'll authorize you to clearly violate a statute, but why couldn't he do the same thing on torture?
MUKASEY: Telephone -- I think we have to distinguish very carefully between -- I try to distinguish very carefully between monitoring a conversation, telephone content, and telephone records.
Telephone records have never been protected by the Fourth Amendment because they're in the hands of a third party. If they weren't, you couldn't...
LEAHY: Conversations are.
MUKASEY: Of course they are. You couldn't argue with your telephone company over the bill.
LEAHY: The conversations are, and the conversations, people's lives could be -- they're taken improperly, used improperly, their lives could be ruined, their jobs could be lost, and so on.
I think we'll come back to this judge, and we should think about this a little bit, because I don't think you can say, when you have a very clear statute, that president can suddenly above the law or authorize others to break the law, which is what it appears you're saying, and other cases, like torture, he can't do it, even though we find out now that they have broken the law, the torture law, supposedly having been told they could do it by the White House.
SEN. DIANNE FEINSTEIN, D-CALIF. Thank you very much, Mr. Chairman.
My discussion I hope you will take in a full form as a discussion on an important issue.
This afternoon, Judge, the Intelligence Committee will be marking up a FISA bill. I can tell you, it is a very big bill. At this stage, it is a bipartisan bill.
Yesterday, the House bill fell apart on the floor of the House. I'm absolutely convinced the only way we can legislate in this area is on a bipartisan basis, and much to the commendation of the chairman and the vice chairman of the Intelligence Committee in the Senate, this bill, so far, is bipartisan. That's good news.
My second point is, the so-called terrorist surveillance program could have been within the law from the very beginning. I have never understood why it wasn't within the law.
The formulation of an 11-judge Foreign Intelligence Surveillance Court, prepared to sit 24/7, is a very important thing in our nation. And I think the big guarantee that we give our people is the guarantee of law, to the greatest extent we possibly can. And that law is there.
I took some time, when I went on the Intelligence Committee some years back, to read the Church report that was put out after 1978, and the passage of the FISA bill. And the Church report outlines a major historic trend by this nation, in our 200-history, to essentially take foreign intelligence, exploit the loopholes, and use it for political intelligence-gathering, domestically.
And there's example after example after example, through a whole host of Democratic and Republican administrations, which points out, to me, at least, the real need for a Foreign Intelligence Surveillance Act that we can say to the American people is the exclusive authority.
Now, yesterday, we began this discussion. Unfortunately, I didn't have the time. Senator Feingold followed up. And let me quote you on these points.
In the area between where that statutory authority left off and where his authority left off under the Constitution, in Judge Bell's view -- and it is one that I share -- I think he would have -- meaning the president -- the authority to act.
I think it's important -- you went into the fourth amendment then. 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 very well might be more flexible than matters related to the gathering of intelligence.
In terms of evidence that is legislative intent, there is not scant evidence. There is very fulsome evidence, I believe, that every effort was made, in 1978, and even since then, to provide that electronic surveillance be under law: the setting up of the court, the report language.
You mentioned the AUMF today. I do not believe, in terms of the legislative history of the AUMF -- and I was part of, or sat through some of these discussions -- there was any intent to allow the president to wiretap outside of the law.
It was never discussed. It never came up.
The full focus was whether to confine this to Iraq or more broadly. And I think -- I sent, last night, part, page 101, of the report on the FISA bill. And I want to read a couple of sections to you and then ask you to comment, in view of what I've just said.
When a president takes measures incompatible with the express or implied will of the Congress, his power -- and we know this -- is at the lowest ebb, for then he can rely only on his own constitutional power, minus any constitutional power of Congress.
Courts can sustain exclusive presidential control in such cases only by disabling the Congress for acting upon the subject.
It then goes on that, that, Despite any inherent power of the president to authorize warrantless electronic surveillances, in the absence of legislation by this bill and Chapter 119 of Title 18, Congress will have legislated with regard to electronic surveillance in the United States.
That legislation, with its procedures and safeguards -- FISA Court, 11 judges, 24-7 -- prohibit the president, notwithstanding any inherent powers, from violating the terms of that legislation.
Then, the report language goes on to describe how the bill essentially repeals those provisions which state that nothing in those relevant chapters shall limit the constitutional power of the president. They repealed that section -- expressly repealed it.
And then they go on to say, In short, Congress simply left presidential powers where it found them -- not true.
The Foreign Intelligence Surveillance Act, however, does not simply leave presidential powers where it finds them. To the contrary, this bill would substitute a clear legislative authorization, pursuant to statutory, not constitutional, standards.
Thus, it is appropriate to repeal this section which otherwise would suggest that perhaps the statutory standard was not the exclusive authorization for the surveillance included therein.
See, I don't think the president, based on the legislative history, has -- unless there is something that expressly grants it to him. The AUMF did not expressly grant, nor was it discussed, nor, I believe, was it contemplated that he would use that as authority to go outside of FISA.
Now, and, again, I conclude with this: He didn't have to go outside of FISA. Subsequently, that became clear. And the program is within FISA now.
So, what bothers me is that you yesterday sustained that gap, where I believe that gap has been closed, and it hopefully will be further closed by what we do in an intelligence bill which will then, after Intelligence, come to this committee.
Could you respond?
MUKASEY: All I can say is, I share your hope. And I share the view that if the president can act within FISA, then that is where he has to act. I think, based on the history that you read, the only -- and I don't want to look for areas of disagreement. I was told not to look for areas of disagreement.
FEINSTEIN: Well, let's -- I think this is a conversation worthwhile having, so you go ahead.
MUKASEY: OK. The only place where we might conceivably have a disagreement, and I'm not certain we do there, either, is in the view that notwithstanding what Congress is saying specifically, we are restricting the president's -- what might otherwise be the president's authority under the Constitution, that that can actually restrict the president's authority under the Constitution.
Whether a past Congress said we acknowledge that the president might have authority that lies beyond this statute, to repeal that can't change the constitutional reality.
If however, it was always possible for the president to act within FISA, then there's no need for that authority.
And, for example, under FISA as it stands now, as I understand it, there are procedures that are approved by the Foreign Intelligence Surveillance Court that the president is then free to use without each time having to go for a separate warrant, because that's simply unfeasible regardless of how many judges we've got. And that's obviously the way to go; that's the way I want to go.
FEINSTEIN: Exactly. My point is this: The administration didn't try to do that before the heat got very hot, and then they went and did it. And that's the reason why FISA really should be the exclusive authority for this kind of public action, because it is all hidden action, and therefore the Fourth Amendment does come into play, I think, too.
So perhaps, you know, the best I can say for your argument -- and it's wonderful for me, because I'm not a lawyer, so I can say that -- is that you have two butting amendments, perhaps. But when you listed the AUMF, I think the history counters the AUMF. That's all I wanted to make.
Thank you. Thank you, Mr. Chairman.
LEAHY: The AUMF is the weakest read this White House could ever hold onto, and it doesn't stand up. I think the fact that they're bringing so much pressure on the Intelligence Committee, the press is to be believed the Intelligence Committee is about to cave on this, and bringing pressure on this committee to immunize past illegal conduct, is because they know that it was illegal conduct and that there is no saving grace for the president to say, Well, I was acting with authority. Otherwise there wouldn't be so much pressure on us to immunize illegal conduct by either people acting within our government or within the private industry.
Senator Kyl was here yesterday and, as we grew late in the day, was willing to wait until today.
And I appreciate that very much, Senator, because we were then able to wrap up. And I yield to you.
SEN. JON KYL, R-ARIZ.: Thank you very much, Mr. Chairman.
With all due respect, let me suggest there is another way to read the president's strong interest in trying to get a good FISA reauthorization, a much more benign reason, that he believes that it's important to our national security that we be able to secure this intelligence information against terrorists and, with regard to the retroactive liability, that there could be a very chilling effect on the ability of telephone companies or others to cooperate with the government if we don't protect them from potential suit.
It doesn't have to be that the administration knew that its activities were illegal and, therefore, it has been working with us hard to get this legislation passed. In fact, I think that's a most uncharitable and incorrect assessment of the situation.
I'd like to agree with Senator Specter just a moment, with regard to his comments about Steve Bradbury. I think Senator Specter said it well, and I'd just note those to you, Judge Mukasey.
And, also, with regard to the question of the reporters shield law, you took a question on this yesterday and commented on what Senator Specter said, I would like to correct the record just with respect to one thing Senator Specter said, but agree with him that it will important for us to be able to work with you. And I'll ask you that question in just a moment.
But from the Department of Justice's own report, the numbers demonstrate a decrease in the number of cases in which the department has approved the issuance of subpoenas seeking confidential source information in recent years.
Of the 19 source-related matters, since 1991, only four have approved since 2001, so this is hardly a situation in which, as was said, there are many cases where reporters have gone to jail.
There are almost none, very, very few, and the Department of Justice has clearly been very discreet in the kind of source-related matters that it's been seeking in recent years.
We've all been seeking to reach that point that Senator Specter alluded to, the accommodation of national security interests, prosecution of criminal matters, as well as the free flow of information.
And my question to you is, since the legislation has come out of the Judiciary Committee, but with an agreement among us that we will continue to work on it, it would be very important to have your insights, as well.
And, obviously, the question is -- you've already answered to Senator Specter, but to reiterate your willingness to work with us as that legislation proceeds, so that we can try to accommodate all of these interests in the most efficacious way.
MUKASEY: I agree, and I think it bears some mention, in connection with this subject, that there are within the department very elaborate procedures before anyone is permitted to subpoena a reporter. Some AUSA with a subpoena and a typewriter doesn't decide whether to subpoena a reporter. There are many levels of approval that have to be gotten in main Justice, not just in the assistant's own office, before a subpoena can be issued to a reporter.
And it was my own view -- and I don't know, obviously, all of the cases -- that the system worked passably well up until now. But one thing about internal procedures is that, if you need to change them, they're relatively easy to change. You can adjust the regulation; you can adjust the procedure; you can put more levels in; you can change standards. It's relatively easy to do.
It becomes much harder when it's etched in stone in the form of legislation, and that is part of the reasons for my unease.
KYL: I appreciate that.
You know, Mr. Chairman, yesterday when Senator Lieberman introduced Judge Mukasey, he talked about a contracts professor that loved to grill them on the law. I suspect that Judge Mukasey might have viewed the questioning by our colleagues as somewhat akin to that, and I think you've come through it with flying colors.
I thought it'd be interesting to just get back to the Department of Justice mission statement. We've been fairly far afield with a lot of different things here.
And I found it interesting to review it, that your job, if you're attorney general, is to enforce the law and defend the interests of the United States according to the law, ensure the public's safety against threats foreign and domestic, provide federal leadership in preventing and controlling crime, to seek just punishment for those guilty of unlawful behavior, and to ensure fair and impartial administration of justice for all of Americans.
And that's a mission statement I think we can all agree with.
And in thinking about that mission statement -- in other words, exactly what your job is and what you would be doing during the next year that we would be interested in, with respect to our oversight, I found it interesting that the people who have worked with you in those various areas -- enforcing the law, providing leadership, and preventing and controlling crime, seeking just punishment and so on -- have been impressed with the way that you have executed your responsibilities, suggesting that in your position as attorney general of the United States you would carry that same experience to the fulfillment of your responsibilities.
Perhaps it's been read into the record already, but it bears repeating perhaps. Mary Jo White, U.S. attorney for Southern District of New York from 1993 to 2002, commented that during the Sheik Rahman trial you had 10 defendants on trial, controlled the courtroom very tightly. She said, He's dealt with some of the most complicated, novel issues that any judge will ever see. That's who he is, tough- minded, clear-eyed person. DOJ is very lucky to get him.
And, of course, there have been so many other comments from others that have worked with you.
I just thought it important to note that, with respect to your actual responsibilities, as opposed to some of the things that have been discussed in this hearing, that your reputation fits in very tightly, it seems to me, with your responsibilities as attorney general. And I am pleased that you've had that kind of support from the people who whom you've worked.
I discussed these things with you personally. I've listened to your testimony here. And it seems to me that you are extraordinarily well suited for this position, as pretty much as well as anybody who hasn't served in the position before could be.
And I just wanted to close by asking if you have any insights for us with respect to how you view your job. You've got roughly a year left in the last year of an administration. There's been some tumult in the department. There have huge challenges coming from this threat of terrorism, in addition to all of the usual things the Department of Justice has to deal with.
But to bring your experience to bear on it and to basically speak directly to the American people about how you can take that experience and represent them in the Department of Justice as the chief law enforcement official of the country.
MUKASEY: What you've described is a job that would humble somebody with twice my ability. The one great consolation that I have is -- go back to my opening statement, the people in the department are the people who carry that responsibility.
My job is to make sure that they have as few problems as possible and let them do their jobs. And they are enormously talented, dedicated people.
I mentioned running into people on the coffee line. Two of those people were 30-year veterans of the department -- 30 years. And there are thousands of them. That's what allows me to sleep at night when I say yes to wanting to do this job, because I'm going to have available to me the kinds of people who were there.
Yes, it's an awesome responsibility. But look at the people I have helping me...
KYL: I appreciate that.
Mr. Chairman, by the way, both relative to Senator Specter's comments and mine, I'd like unanimous consent to insert in the record at this point a washingtonpost.com piece dated Friday, October 12th, titled, In Defense of the Office of Legal Counsel.
LEAHY: Without objection, so ordered.
Thank you, Mr. Chairman.
Judge, good morning.
MUKASEY: Good morning.
SEN. RUSS FEINGOLD, D-WIS.: I know there's been a great deal of discussion this morning which actually followed our conversation yesterday about the effect of the FISA law and the president -- whether the president has the authority to violate that law.
And I would just like to associate myself with Senator Feinstein's excellent description of congressional intent when passing FISA. And I must say that your answer to her appeared to be directly contrary to the Youngstown approach to executive power, which you and I discussed in detail yesterday and you appeared to accept as important and valid law.
The Supreme Court has held that executive power is affected very significantly by what Congress does. So, it sounds like, overnight, you've gone from being agnostic, as you and I have gone back and forth since our first meeting on this question, to holding what is a rather disturbing view.
You have said today that you believe the president may violate a stature if he is acting within his Article II authority. Now, that position, which I find alarming, makes it extremely important to know what you believe the exact scope of the president's Article II authority to be.
So, are you telling the committee, Judge, that any time the president is acting to safeguard the national security against a terrorist threat, it does not have to comply with statutes?
MUKASEY: You suggested that I've gone overnight from being an agnostic to being a heretic.
FEINGOLD: Explain why you haven't.
MUKASEY: I am.
I think -- all I'm saying is that I -- obviously, I recognize the force of Justice Jackson's three-step approach. But I recognize, also, that each branch has its own sphere of authority that is exclusive to it.
For example -- just to take an example that has nothing to do with the subject under discussion immediately -- you have the exclusive authority to vote me up or vote me down for any reason or no reason.
If I am displeased with the result and displeased with the reason, I could not, validly, go down the street to the court house and file a lawsuit and claim that I had been denied a right. Even if I got some judge who was willing to entertain the lawsuit and even if I prevailed, there are a lot of ways you could describe that outcome.
But the rule of law isn't one of them, because the authority belongs only to you.
There are areas of presidential authority.
I also said that we are not dealing here, necessarily, with areas of black and white. I understand that. Which is why it's very important that push not come to shove on these questions, because the result can be not simply discord, but disaster.
FEINGOLD: Well, Judge, I'll take your example.
In the case of the Youngstown case, people did have the right to go down to a courtroom. And they did it. And they won.
And Justice Jackson indicated a three-part test, which your analysis today I think renders essentially meaningless.
So I believe that this is contradictory. And it does trouble me.
And I have great respect for you. And I do believe, as Senator Schumer indicated yesterday, you have a similar opportunity to change the tenor of this administration in a way that Levi did in the prior history of this country.
Let me just say, with all respect, that this area is perhaps the most important one where the repairing has to be done, the getting away from this notion of sort of an ever expanding, infinite Article II power. And I'll ask you to take that very seriously.
Let me switch to a different topic. As you know, the decision whether to seek the federal death penalty in any given case rests with the attorney general alone.
Attorney General Gonzales has been criticized for not being personally involved in that decision-making process. In one case, he apparently refused to speak personally with the U.S. attorney about a case in which he ordered that the death penalty be sought, over the U.S. attorney's objections.
And then he told this committee that this was one of the reasons that that particular U.S. attorney was fired.
How personally involved would you be in decisions about whether to seek the federal death penalty?
MUKASEY: I am going to be personally involved. And I am going to review every such decision. I took sentencing seriously when I was a judge. I never had occasion to pass a death sentence, although I did preside over cases where that was at least a possibility at various points in the case.
There is, obviously, no penalty that is analogous to the death penalty. There are other penalties and there is that one. And that means that I'm going to review every such case in excruciating detail.
We have a system in place, as I understand it, that was put there, I believe under Attorney General Janet Reno, in which we have tried -- I'm already saying we, and that's presumptuous -- in which the department has tried to assure that the decision about whether to seek the death penalty or not seek the death penalty depends only on the underlying facts of the case, the history of the defendant, the acts involved, the seriousness -- obviously the seriousness is always ultimate, but the cruelty that accompanies a murder, and other indicia.
FEINGOLD: Will you refuse to speak personally with a U.S. attorney who disagrees with your decision and wants to discuss it with you?
MUKASEY: That's a difficult question for the following reason.
If there is a defendant in a jurisdiction where the United States attorney wants to speak to me, then it may very well be that that defendant's crime is no better, that his background is no better than the background of a defendant in a jurisdiction where the United States attorney, because in that jurisdiction they're more accustomed to or newer to or favorable to the death penalty, and the United States attorney doesn't feel he wants to intervene.
This system was supposed to treat -- the system that was created in the department was supposed to treat those two people the same way.
FEINGOLD: But why wouldn't you speak to the U.S. attorney about this?
I mean, you didn't specifically say that, but that was my question. Would you agree to, at least, discuss it with him?
MUKASEY: I would want to have that United States attorney's views made known to me. I don't want to be in a situation of succumbing, if you want to call it that, to a plea by a United States attorney who does not want, for good and conscientious reasons -- and there are people who have good and conscientious reasons, and I recognize that -- does not want to -- did not want to seek, when the same case may be getting different treatment in another jurisdiction.
FEINGOLD: Should the additional cost of pursuing the death penalty, rather than a life sentence, be a consideration?
MUKASEY: There's a whole range of considerations. That's, I guess, one of them.
FEINGOLD: Let me move to another topic because I'm running out of -- unless you feel you need to elaborate there.
MUKASEY: No, I just don't want to create an incentive for -- obviously, the more costly you make it, then the more the equation tends against it. And we shouldn't...
FEINGOLD: Fair enough.
Judge, as is the case in every federal agency, of all three branches of government, there are gay, lesbian, bisexual, and transgendered Americans serving honorably and effectively at the Department of Justice.
The department sponsor commemorative events to recognize the contributions of various minority groups, but under Attorney General Ashcroft and Gonzales, in contrast to Attorney General Reno, it has refused to do so for the GLBT Americans.
In addition, while DOJ Pride, an organization of GLBT employees, is permitted to use department space to hold events, it is prohibited from advertising those events on public billboards, in department buildings, again, unlike organizations for minority employees at the department.
Similarly, the department refuses to recruit at job fairs aimed at GLBT attorneys but sends recruiters to job fairs aimed at other minority groups.
I am troubled by this. I suppose there is not much to be done about this administration's attitude toward gays and lesbians, but as attorney general you would have the power to end this shameful conduct.
FEINGOLD: Will you stop the disparate treatment of gay and lesbian employees at DOJ?
MUKASEY: I don't understand the reason for that treatment. When I was a district judge I interviewed and hired without regard to any matter relating to the personal life of a prospective law clerk, any matter of that kind. And I see no reason why there should be any different standard at the department.
FEINGOLD: I will take that as saying that you will stop the disparate treatment of gay and lesbian employees at DOJ.
MUKASEY: Sounds like I'm going to.
FEINGOLD: Pardon me?
MUKASEY: Sounds like I'm going to.
FEINGOLD: Sounds good to me.
Thank you, Mr. Chairman.
LEAHY: Thank you.
Normally, we would go to Senator Grassley next, but Senator Grassley -- Senator Coburn, like most of us, has about five different places to be and is willing to yield his place now to Senator Coburn. So we'll go to Senator Coburn. The next Republican in line will be Senator Grassley.
COBURN: Thank you, Mr. Chairman.
And thank you, Senator Grassley, for your consideration.
Mr. Mukasey, or Judge Mukasey, here's your quote: The department faces challenges vastly different from those it faced when I was assistant U.S. attorney 35 years ago. But the principles that guide the department remain the same: to pursue justice by enforcing the law with unswerving fidelity to the Constitution.
You've answered throughout yesterday many questions in regard to that. I was one U.S. senator who thought that the previous attorney general should resign, not for the similar reasons that many of my colleagues did, but because of the management that I saw at the Department of Justice.
What will you do to ensure that this quote and this axiom of loyalty to the Constitution before loyalty to any political appointment is carried out through the depths of the Justice Department?
MUKASEY: Dr. Coburn, I believe in a couple of things. One is you lead by example. You do things that you want other people to do and you don't ask people to do things you don't want to do yourself. That's one way.
Another is to make certain that if there is any suggestion that there's any problem that would compromise a constitutional standard, is to get in it up to my elbows -- or further, if necessary -- and to stop it.
I have pursued up until now hands-on management to the extent I have managed at all. And I recognize that I don't have a business degree and I'm not -- I've never managed anything like a 100,000- person agency with a $22 billion budget. Never done it.
But I have had a hands-on management style. I want to continue that.
I want to consult with people not only in the immediate leadership, but people from below that, so that I understand what it is that's really going on and so that I'm not caught by surprise. I don't like surprises.
That's the way I think, to make sure that the standards I tried to articulate are maintained. And that's what I hope and plan to do if I'm confirmed.
SEN. TOM COBURN, R-OKLA.: Thank you.
The Justice Department is unique, in the federal government, in that it's the only agency that has allowed a percentage of its unexpended balances, at the end of the year, to use discretion to enhance what they do, both in terms of I.T. and things.
We allow the Justice Department to do that. We don't allow any other agency to do that.
We recently passed a limitation on conferences in the Senate, with specifics to certain groups that were unindicted co-conspirators and others, and real concern about the amount of money the Justice Department spends on conferences.
I realize there have to be conferences.
Can we have a commitment from you that you will approve the budget for conferences and that, in fact, the conferences will be exactly what is needed and not more -- and not more frequent? And a real conservative action that looking at your fiduciary responsibility, in terms of the budget of the department, to make sure that the dollars spent there are not wasted.
MUKASEY: I emphatically agree with that. I did not attend many conferences when I was a judge. I attended the judicial conference because I was required by statute to do so.
I'm not a big fan of publicly funded get-togethers for the sake of getting together.
COBURN: OK. My final question, and then I will refer back. I won't use all my time.
I'm concerned about morale in the Justice Department. We -- there's no question some management decisions have affected that. We have impacted that by the controversies that, either real or otherwise, have put before.
What is your plan, in this limited amount of time that you have, to create a vision and a leadership plan that will bring the morale and a esprit decor and the positive thinking back to the Justice Department?
MUKASEY: I agree that perceptions about morale are going to be part of the landscape that I'm going to face at the Justice Department. But I don't want, by my words or my actions, to create a self-fulfilling prophecy in which talk about bad morale creates bad morale.
I think what contributed to and what accounted for the esprit decor in the office that I served in 35 years ago was that we were doing exciting, worthwhile work that had no standard other than what served the public interest and that excited and energized people.
And it contributed to great esprit decor. I want to help people to do that. I want to fill positions. I want to make it possible for people to do their jobs. That's what accounted for the esprit decor in the office that I was in and I think that's what promotes it in the department.
COBURN: Thank you.
I want to thank you for your commitment to take on this task, for a very short period of the time, and to just compliment you for being willing to sacrifice. You don't have to do this. You could do other things. And I think it's admirable and it's one of the qualities of Americans, that they'll serve knowing that the positive benefits for you, personally, are not going to be great.
MUKASEY: Thank you.
COBURN: Thank you, and I yield back.
FEINSTEIN: Senator Schumer?
SEN. CHARLES E. SCHUMER, D-N.Y.: Thank you, Madam Chairperson, and thank you, again, Judge Mukasey.
Now, I know you care as much as anyone about rooting out public corruption. In fact, I note that when you were at the U.S. attorney's office, you ultimately headed up the official corruption unit for a few years.
Both you and I know that sometimes, the mechanism for pursuing public corruption can, itself, become corrupted. And you and I both know that when political considerations get enmeshed in political cases, the public suffers and justice suffers.
You've already given comforting answers about some things you do in the future about making sure political actors and elected officials do not, themselves, corrupt investigations of corruption.
So, I want to ask you a few more questions along those lines.
First, how would you react if it came to your attention that the White House director of political affairs, or a similar official, had pushed the United States attorney to pursue a case against a Democratic official?
MUKASEY: How would I react?
MUKASEY: A euphemistic description would be negatively.
I'll be specific here: Would you confront the White House official?
MUKASEY: I would first have a conversation with the United States attorney involved and find out what it was that had been said or not said, and what pressure had been brought or not brought.
And if I thought that pressure was being brought, I would have a conversation with the White House official and, if necessary, with the president.
Well, that was my next question: Would you inform the president of the behavior? And you've answered that.
What would you do to rectify the situation?
MUKASEY: I would make absolutely certain that whatever the effect was of the pressure was undone.
MUKASEY: And how to do that, obviously, is going to vary on a case-by-case basis. But one way might very well be to take over that investigation with someone from main Justice who is not subject to that pressure.
But that's a hypothetical. I recognize that, and I don't want to -- I'd rather confront -- I'd rather not confront the issue. But if I have to confront it, I'd rather confront the facts and not just...
SCHUMER: Sure, understood.
MUKASEY: ... a hypothetical.
SCHUMER: Well, let me go to a specific fact case, because there are troubling allegations from several quarters that such behavior did actually occur in the past. And so I want to talk not only prospectively but retroactively -- retrospectively.
In Alabama, there was a recent prosecution of a former Democratic governor named Don Siegelman. Although he was ultimately convicted of several counts, there are serious allegations that his case was politically motivated and selectively prosecuted.
A Republican lawyer from Alabama, Jill Simpson, has apparently sworn under oath that an Alabama political figure told her that Karl Rove pushed the Justice Department to bring political corruption charges against Mr. Siegelman.
She also testified that the son of Alabama's current governor told her that a Republican judge would, quote, hang Don Siegelman, unquote.
It's also been suggested that when the case against Mr. Siegelman was faltering, this political pressure caused people at the department to demand prosecutors, quote, take another look at everything, unquote.
And there are other troubling allegations that are a matter of public record. And given what we've seen in the Justice Department -- again, no smoking gun but a series of these types of issues -- I've read about this. I don't know the specific facts, but it greatly troubles me. It greatly troubles me that perhaps, perhaps, perhaps this case was politically brought.
My chief counsel, who was a prosecutor in the U.S. attorney's office, the same one you served in, said, Well, he was convicted. But that doesn't really answer the question per se.
So I'm not accusing anyone of anything. And I don't know all the facts. But I'd like you to learn the facts and report back. And so I'm asking you -- you know, you've demonstrated you're a no-nonsense public servant. As good as your intentions are, we can't have a proper house-cleaning without resolving lingering issues and doubts.
In the spirit of making a fresh start and restoring public confidence that politics has been removed from the department, I would ask you to personally look into the Siegelman matter and just report back to us what you find. Would you be willing to do that?
MUKASEY: Well, I don't know what stage the Siegelman case is at.
SCHUMER: He's convicted. He's in prison.
MUKASEY: I understand that. Is the case on appeal?
SCHUMER: I don't believe it is.
Yes, it still may be. But as you know, he's -- under federal rules, he's serving time in prison right now.
MUKASEY: I understand that. But I think that it may very well be that the first cut at the facts that you've described and suggested ought to be had by the court.
And it is not unheard of for there to be a motion in an appellate court to remand when facts come to the attention of lawyers after a case is tried that warrant hearing by the court that tried it.
SCHUMER: Not to interrupt you, I don't know the details of this, but I know many of these facts came out after the trial and conviction at the district level, and might not be admissible before the court of appeals.
MUKASEY: What I'm suggesting is, maybe there ought to be a remander or a request for a remander.
The reason I'm hesitant to say, Well, I'm going to get into it and do something, is when a case is in the process, as this one is, I...
SCHUMER: Let me rephrase the question.
Would you take a look at it? If there is a possibility, and the case is ongoing because of appeal, would you be willing if, after the appeal is completed, particularly if there's no remand or it's not admissible -- these new facts are not admissible, determined by that court, would you be willing to take a look at this?
MUKASEY: I'd certainly be willing to take a look at it.
SCHUMER: OK. Thank you.
I have a brief amount of time left. I just have a couple of questions here about, again, disproportionate prosecution of Democrats. I'm going to be quick here because my time is running out.
Donald Shields from the University of Missouri and John Cragan from Illinois State University did a study of prosecutions.
Again, we see this in the backdrop of what we've seen over the last few months and what we've learned through the chairman's leadership on this investigation.
The two professors of communication compiled a database of 375 investigations and indictments of candidates and elected officials by U.S. attorneys. The preliminary findings suggest that Democratic officeholders and office-seekers are investigated seven times as often as Republican ones.
Obviously, there may be the situation where there was seven times as much corruption brought to the attention of the U.S. attorney among Democrats. But if you believe, sort of, bad people are, sort of, sprinkled through the political system rather evenly, that is not one that goes down easy or well.
I'd ask you to take a personal look at the study, see what you think, and if you thought it had some merit, undertake a study of your own to determine whether there is not improper or uneven treatment going on.
MUKASEY: I will take a look at the study. And I also can tell you I believe that neither party has a monopoly on either virtue or vice.
SCHUMER: I'd be interested, should you become attorney general -- and as you know, I hope you will be -- that you report back to us in some way or other your view of that study.
My time's expired.
LEAHY: Senator Grassley?
SEN. CHARLES E. GRASSLEY, R-IOWA: Thank you for the opportunity...
LEAHY: Incidentally -- and restart the clock -- just so people know the schedule, we will go to 12:30. And if all questions have not been asked, we will recess until 2 and then come back. Just so that -- is that satisfactory?
SPECTER: Yes, Mr. Chairman. I think that that's a good idea.
As I commented to you earlier, there are a number of subjects -- there a great many matters pending before the committee legislatively and on the executive privilege where we have subpoenas outstanding.
And Judge Mukasey has been very cooperative and very helpful and very forthcoming. I think that he's responding to our questions.
But it is not a fast process, and they involve very complex subjects, and we have to take the time necessary.
And it's longer than we'd like to keep you here, quite frankly, and it's longer than we'd like to stay here, quite frankly.
As you see from the rotation around here, everybody's got -- Senator Coburn, it was announced you had to be in only five places at one time.
I'm managing an appropriation bill that's supposed to be on the floor. But we'll have to just rotate back and forth and cover these subjects, which, as I say, are important.
Thank you for your cooperation, Judge.
And thank you, Mr. Chairman.
SPECTER: Senator Grassley, thank you. We'll start the clock back up.
GRASSLEY: Thank you.
Judge, I have one question about whistleblowers before I go back to where we left off yesterday, and we left off about that nondisclosure form.
But why I emphasize, as I hope I told you in the privacy of our office, the need to worry about whistleblowers is because -- you probably know that, but if don't, you'll soon find it out, that there's a great deal of peer pressure to go along to get along within government bureaucracy. And I don't mean just Justice, I mean government generally, and I mean all levels of government.
Whistleblowers tend to be skunks at a picnic and are treated the same way. And we have laws that protect them, and I want to make sure that at least within your jurisdiction you do what you can.
So what initial actions would you personally take to abate any fears or retaliation against individuals who are critical of procedures, practices or policies that do not guarantee or execute the primary mission or goals of FBI within the Justice Department or the entire Justice Department?
MUKASEY: I think I will tell people specifically, and I will tell them in action that I am receptive to and supportive of anyone who can disclose any impropriety, whether it's in the way rules are applied or in the rules themselves, and who can help the government stop impropriety and stop waste.
Making that explicit and then acting on it I think are the only two ways to do it.
GRASSLEY: I think you're very sincere. But let me tell you, one time I said to the president, you know -- this president -- that, You ought to have a Rose Garden ceremony honoring whistleblowers because for the most part they're patriotic people; just want government to do what government's supposed to do and point out things that are wrong.
And I got some sort of a comment back about if he did that, every nut would come out of the woodwork, you know.
So, with that sort of an attitude at the highest level of government, you know, it's very important that people a little lower down, as you are -- not very low down, but somewhat lower -- make sure that the spirit of the law is carried out, as well as the law.
Where I left off last week, I've learned that the FBI and the Justice Department Office of Inspector General have been using an overly broad nondisclosure form during administrative inquiries. This issue came to light recently in the course of the OIG's investigation into the FBI's misuse of national security letters.
This form broadly states that no information may be, quote/unquote, released in any form to anyone, and indicates that if any portion of the information is released, quote/unquote, beyond this room, then further investigation could result.
This is not a threat to be taken lightly, coming from the FBI, particularly, but also from the Justice Department OIG.
While nondisclosure agreements may be necessary and an important part of investigation, executive branch employees must remain free to provide information to Congress.
Section 820 of the Appropriations Act for the Department of Justice prohibits any nondisclosure policy, form or agreement that does not contain specific disclaimers ensuring that Congress is not cut off from crucial information.
I'd like to have a copy of that statement put in the record -- that nondisclosure statement put in the record at this point, Mr. Chairman.
As you can see, it's plain that the form does not contain the disclaimers required under Section 820.
As you know, the Justice Department's budget was authorized for fiscal year 2007 under a continuing resolution, so Section 820 remains in effect. But according to the inspector general, the FBI has been routinely using this broad nondisclosure form during administrative hearings.
GRASSLEY: As you know, the Justice Department's budget was authorized for Fiscal Year 2007 under a continuing resolution, so Section 820 remains in effect. But according to the inspector general, the FBI has been routinely using this broad nondisclosure form during administrative hearings.
One, if you're confirmed as attorney general, will you conduct a review of nondisclosure agreements used by the Justice Department and subordinate agencies and ensure their compliance with 820 of the Appropriations Act of the Department of Justice, as well as other appropriations acts in the future that might have similar provisions?
And I guess, if -- it seems to me that without this disclaimer, it's kind of a thumbing the nose attitude toward the Congress. I mean, like, there's no respect for the law we pass.
MUKASEY: Part of the concern for the integrity of national security, that I've had occasion to express this morning because I've been asked about it -- the only way we respect legitimate claims about national security is if we don't promiscuously attach the phrase national security to anything that we'd rather not discuss, but we're going to have other people discuss.
And so I think we have to be very careful in rationalizing nondisclosure obligations based on the claim, Oh, this is national security. And I also, obviously, believe, as I've said, that the oversight authority of this committee is enormously important in helping the department fulfill its role.
So, for those two reasons, I would be very, very critical of nondisclosure agreements and make sure that they're used only when it's necessary for them to be used and not simply as an everyday way of doing business.
GRASSLEY: Well, I should accept your answer. It seems to me, though, that that information ought to be -- about Section XX ought to be broadly reminded of everybody as part of a document.
Let's go to the Office of Inspector General. As I've said so many times, oversight is very important. You can't do it in Congress if we don't get some help. We, obviously, need, in this regard, strong inspector generals to provide another independent assessment of operations within the executive branch.
One, do you agree that independence is the hallmark of the inspectors general's integrity and effectiveness?
MUKASEY: I do.
GRASSLEY: Please explain what kind of relationship you would intend to have with the Justice Department Inspector General Glenn Fine, assuming he stays on in that position, and describe -- or, I mean, whoever might succeed him -- and describe what steps you will take to ensure that his office will function as an aggressive and independent check on the department, his components, and I speak here, particularly, to the FBI and I'll get into something just a minute on that -- but not just the FBI.
MUKASEY: I hope to have a cordial and effective relationship with him, as I would with any other officer in the department. And he is a person -- he, in particular, is a person of great experience. He's been at this for a long time.
And his views get a lot of respect and they're entitled to a lot of respect and they're going to get a lot of respect from me.
GRASSLEY: Earlier this year, the Office of Inspector General released an important report on the FBI's misuse of so-called exigent letters and nationals security letters.
Some of the findings suggested that more inquiry was necessary in determining whether officials had knowingly approved FBI information requests containing false statements or improperly characterizing requests as emergencies to obtain records without legal process.
At first, the OIG was going to merely allow the FBI to investigate itself. However, after this committee had a hearing, the OIG decided to conduct further investigation jointly with the FBI Inspection Division.
While this is better than having no role for the inspector general, it seems that allowing the FBI to actively participate in an investigation of its own potential wrongdoing could undermine the credibility and public confidence in the final product by providing an opportunity for the FBI insiders to tamper with the investigation.
One, do you believe conducting joint investigations with the entity under an investigation is consistent with the principle of inspector general independence?
MUKASEY: I agree that having an agency investigate itself is generally not the optimum way to proceed. The one fact, as I understand, that gives me pause here is that I believe that one of the preliminary conclusions -- that among the preliminary conclusions reached by the inspector general in his first report, and I understand this is still under -- this matter is still under investigation, but a preliminary conclusion was that there were no controls in place, there was no monitoring in place.
And that that was, in part, what lead to the abuse, where a form that originated in one place, where there were grand juries sitting, was then sent around and nobody bothered to the read the form; they used it and told people that they were to produce information for use by a grand jury when there was no grand jury, which is inexcusable -- I agree.
But that what happened was that when they saw that report, the FBI did, as I understand it, put controls in place and monitoring in place and I think that, given that that's been the response, that we ought to at least give those controls and that monitoring an opportunity to operate.
And so, their participation in the ongoing investigation is not, perhaps, as inappropriate as it might at first seem.
GRASSLEY: OK. Well, I hope you're right, but I hope also you'll try to do as much as you can, not having the inspector general, just by himself, do that work.
Mr. Chairman, I don't think I'll be back for a third round and I'll submit some questions on agricultural anti-trusts and things of that nature that I'd appreciate some answers for.
GRASSLEY: Thank you.
MUKASEY: Thank you very much.
LEAHY: Thank you.
We're going to go to Senator Durbin. Just a moment before we do. Just, while Senator Grassley's still here, to follow up on the inspector general.
Right now -- and this is something totally unprecedented -- I happen to support what he's going -- the inspector general is reviewing the sworn testimony of your predecessor because questions were raised by members of this committee that the -- some of the answers were not truthful. He's also reviewing sworn testimony of others to determine whether they're truthful.
Can I have your assurance that you will not in any way interfere with that review that he's doing?
MUKASEY: You have that assurance.
LEAHY: Thank you.
SEN. RICHARD J. DURBIN, D-ILL.: Thank you, Mr. Chairman.
Several of our colleagues this morning have said a few words about Steven Bradbury, who's the interim or acting head of the Office of Legal Counsel, and I would just, without returning to yesterday's line of questioning, say that until it is clear in my mind why the investigation of Mr. Bradbury's conduct relative to the warrantless wiretap program by the Office of Professional Responsibility was not completed and was, in fact, preempted in an unprecedented way by the president refusing security clearances to the Office of Professional Responsibility, I will continue to hold his nomination and believe that serious questions about his fitness to serve remain, in my personal opinion.
I'd like to ask you, Judge Mukasey, we talked briefly yesterday about ongoing issues involving race in America. There is another issue which is troubling and is in the papers on a regular basis, and it's the issue of immigration.
In my town -- I'm fortunate to represent the city of Chicago -- the chief of police has said to me that they have made a conscious decision to give confidentiality to witnesses and victims when it comes to their immigration status in the belief that this is the only way to encourage cooperation and the reduction of crime, particularly of violent crime.
Other cities have made that same decision. Your city of New York, under Mayor Giuliani, cities like Minneapolis and Houston, have reached similar conclusions.
I'd like to ask, since there's clearly a question to be raised here of policy, in that immigration laws are federal in nature and the decisions are being made at the state and local level to have confidentiality agreements, which in some -- the eyes of some suspend the enforcement of those federal laws by local agencies, what is your position or opinion on these confidentiality agreements? Or I should say confidentiality statutes.
MUKASEY: I don't -- I didn't -- I wasn't aware that there were statutes. I thought these were simply matters of...
DURBIN: I think you're right. More a matter of policy. You're right.
MUKASEY: Wholly apart from that, the governance of every political subdivision is the responsibility of the executive in that subdivision -- a mayor of a city, governor of a state, and they have to answer to their constituents for the safety and for the welfare of their locality.
And it seems to me, they have to use their own good judgment as to what is necessary to protect that safety and welfare. And they can't take a principle -- which is that we don't want to tolerate unlawful immigration, and we don't -- they can't take a principle like that and go over a cliff with it.
They can't say we're going to let this town be as lawless as it has to be because we don't want to -- we are going to turn in anybody who comes in as a witness who is not properly here.
We can't say that we're going to let children starve because their parents are not lawfully here.
There has to be -- there is a reality to be dealt with. And they are the people who have to deal with it.
And I am very sympathetic to that and very much loath to second- guess them. And I won't second-guess them as attorney general.
I may try to persuade an executive to adjust the policy one way or the other, in a way that accommodates reasonable needs. But that's a very different thing from saying that you sacrifice the physical welfare of people in a particular jurisdiction because we have a principle here (AUDIO GAP) the selection of jurors.
The appellate courts observation was certainly correct.
What I recall -- from what I recall of that case -- and it's been a while since I looked at it -- one of the elements in my consideration was giving deference to the judgment of the state court that made that decision in the first instance.
The case came back to me. We had a hearing. We went through each of the jurors that were struck, each of the reasons that was given. And ultimately, the Batson challenge was rejected. And that, I believe, was sustained on appeal.
I don't actually recall whether it went up or not. I believe it did and it was sustained.
But I certainly agree that you have to give people an opportunity to make a record. And if I too hastily thought that somebody has been given an opportunity to make a record and that was not the case, then, yes, I regret that.
DURBIN: We had questions yesterday about the issue of torture under the Geneva Conventions. The techniques which have been attributed to this administration involve painful stress positions, threatening detainees with dogs, forced nudity, water-boarding -- that is, simulated drowning -- and mock execution.
When we had the judge advocates general testify, I asked, point blank, whether they believed that these techniques violated the Geneva Conventions. They said yes.
And I asked if they felt if those techniques were used against an American detainee, they would be violative of the Geneva Convention. And they answered in the affirmative.
What is your opinion?
MUKASEY: They -- I mean, I'm certainly not in a position here to argue to argue with a judge advocate general's view that they violated the Geneva Conventions and that, whether used against us or against anybody else, that they would.
That said, I think we have to also recognize that when we're talking about coercive methods of interrogation, this is not a matter of choosing pleasant alternatives over unpleasant alternatives or good alternatives over bad alternatives.
It's a choice among bad alternatives.
What the experience is of people in the Judge Advocate General's Corps who are enormously well-disciplined and very skilled, what that experience has been with captured soldiers, captured military people from enemies we fought in the past may very well be far different from the experience that we're having with unlawful combatants who we face now. It's a very different kind of person.
Well, I want to make sure I understand that response, because I think you may have created a division here in treatment, arguing that if these techniques were used in the past, before the current threat of terrorism, it would be a different circumstance under the Geneva Convention than it might be today.
I want to make sure I don't draw the wrong conclusion from that previous answer. So if you'd clarify it for me, please.
MUKASEY: I'm not sure how I can -- I mean, I'm sorry. I'm not sure how I can clarify it.
DURBIN: Well, let me go back. I understood you to say that the judge advocates general, speaking about the Geneva Conventions and these specific methods of torture, may have been referring to previous times, previous conflicts, and that this conflict and this challenge of terrorism may present a different set of challenges that might be viewed or interpreted differently under Geneva Conventions.
If that is not what you said, please clarify it.
I'm not sufficiently familiar with interpretations of the Geneva Conventions to be offering views on what would or would not come within it or outside it.
What I thought I was talking about is procedures that are acceptable to the military, that are authorized in the field manual and that represent the limit of what it is that the armed forces can do.
There are other techniques that are, as I understand it, that may be used by -- with proper authorization -- people outside the military. And those are not covered in the field manual.
DURBIN: But I'm speaking to the Geneva Conventions and the judge advocates general said the techniques that I described to you violated Common Article 3, and this is the baseline test that applies to everyone, not just soldiers. And I believe that the Supreme Court agreed with that conclusion in Hamdan.
Do you see that differently?
MUKASEY: What part of Common Article 3 the Supreme Court found in Hamdan was applicable through, I believe through the Universal Code of Military Justice, unless I'm confusing my cases.
I can't, as I sit here, recall precisely what part of Article 3 the Supreme Court found applicable. I thought they were talking about the need for a trial and for an opportunity for a detainee to get a hearing. I did not think that that concerned interrogation techniques.
DURBIN: Let me try to bring it to the bottom line, because I want to make sure if there is common ground we find it, if not, that it's clear on the record.
I want to understand as to these interrogation techniques whether you believe that they would constitute torture and therefore could not be used against any detainee, military or otherwise, by the United States government.
MUKASEY: I don't think that I can responsibly talk about any technique here, because of the very -- I'm not going to discuss, and I should not -- I'm sorry, I can't discuss, and I think it would be irresponsible of me to discuss particular techniques with which I am not familiar, when there are people who are using coercive techniques and who are being authorized to use coercive techniques, and for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial, I don't think it would be responsible of me to do that.
DURBIN: This is not a congeniality contest, and I'm sorry that I've gone over, Mr. Chairman.
But, for instance, I just want to -- if I can make one last point, on the issue of water-boarding, simulated drowning.
The United States has long taken the position that this is a war crime. In 1901, the U.S. Army Major Edwin Glenn sentenced to 10 years hard labor for water-boarding a captured insurgent in the Philippines.
U.S. military commissions after World War II prosecuted Japanese troops for engaging in water-boarding. The torture statute makes it a crime to threaten someone with imminent death. Water- boarding is a threat of imminent death.
I'm hoping that you can at least look at this one technique and say that clearly constitutes torture, it should not be the policy of the United States to engage in water-boarding, whether the detainee is military or otherwise.
MUKASEY: It is not constitutional for the United States to engage in torture in any form, be it water-boarding or anything else.
DURBIN: Take that as your answer.
LEAHY: I want to make sure I fully understand. But I wrote down about three different times you said: Unless it is authorized. Are you saying that techniques can be authorized that are not constitutional?
MUKASEY: No. That is emphatically not what I'm saying. What I'm saying is that techniques can be authorized that are beyond the Army field manual, and I should not get into a discussion of what they might be or in what combination they might be authorized.
SEN. PATRICK J. LEAHY, D-VT. CHAIRMAN: But if they -- simply because something is authorized, if you have a law that says that it is torture and it is not allowed, is there any way it could be still authorized?
MUKASEY: If it is torture as defined in the Constitution, or as defined by constitutional standards, it can't be authorized. We don't have the Nuremberg defense here.
LEAHY: Is the current statute outlawing torture constitutional?
MUKASEY: I believe it is.
LEAHY: So that if something was authorized outside that statute, or that violates that statute, that authorization is illegal.
DURBIN: Thank you. Thank you, Judge, Mr. Chairman.
LEAHY: Senator -- which one's next? I've lost track.
Senator Whitehouse? Sorry.
SEN. SHELDON WHITEHOUSE, D-R.I.: Just to finish that thought: So is water-boarding constitutional?
MUKASEY: I don't know what's involved in the technique. If water-boarding is torture, torture is not constitutional.
WHITEHOUSE: If water-boarding is constitutional is a massive hedge.
MUKASEY: No, I said, if it's torture. I'm sorry. I said, if it's torture.
WHITEHOUSE: If it's torture? That's a massive hedge. I mean, it either is or it isn't.
Do you have an opinion on whether water-boarding, which is the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces and pouring water over the cloth to simulate the feeling of drowning -- is that constitutional?
MUKASEY: If it amounts to torture, it is not constitutional.
WHITEHOUSE: I'm very disappointed in that answer. I think it is purely semantic.
As you consider this, I'd like to offer you at least a thought that I'd ask you to consider. This comes from testimony that was brought before the Senate Intelligence Committee, that is declassified.
It comes from a military officer who's conducted interrogations, who was team chief during the Gulf War, who had all the services under his command, interrogating literally thousands of prisoners.
He was an adviser to special operations task forces during Iraqi Freedom. He says, I have had a chance to really look at the academic, theoretical side of interrogation, but I am steeped in the operational side.
I asked him, From a point of view of intelligence-gathering effectiveness, would you, could you, or should you go beyond the Army Field Manual and the techniques that are authorized in the Army Field Manual, in order to obtain intelligence?
His answer: Senator, I thank you so much for that question, because I've been waiting 20 years to answer it. That is, absolutely not. I am not at all limited by the Army Field Manual, in terms of what I need to do to generate useful information.
That's the key -- accurate useful information. Not leading to questions to force somebody to say what they think I want to hear. And the full spectrum of their knowledgeability, not answering only the questions I ask, but developing what I call operational accord, a relationship that they see it's in their best interests under non-pressure, non-coercive circumstances, that it would be in their best interest to answer these questions fully.
It gives an example of critical intelligence gathered in a search for Scud sites in the Iraq war and explains that he received it because the individual said, I'm so amazed at my treatment. I wanted, if I was going to be captured, to be captured by one of your allies. Not by the Americans, because I was told you were animals. You've treated me like a gentleman. You've treated me with respect. You are clearly knowledgeable of my customs and my culture. I'm more than happy to answer any questions that you have.
So, I asked him to confirm this. What you mean to say was you don't see the constraints of the army field manual -- the moral constraints, the legal constraints -- as in any way inhibiting the effectiveness of your examination techniques? That you could do everything you wanted to, that you missed for nothing because of those restrictions -- is that what you intended to say?
The answer: That's precisely what I meant to say. I don't see those as limiting my ability to work, the spirit or the letter of that guidance. My approach was what we call a relationship-based approach. I've never felt any necessity or operational requirement to bring physical, psychological or emotional pressure on a source to win their cooperation.
So, following the guidance in the field manual, I feel unconstrained in my ability to work in the paradigm I've taught for so many years -- 22 years of 100 percent interrogation experience.
So then I asked him, Why do other countries do this? And he said, That gets to the very heart of the matter, and it is this. There are two objectives that one can pursue in interrogation: either winning cooperation, or compliance. They seem very similar, but there are profound differences.
Compliance means to take action that is against your interest, that you don't support -- it has nothing to do with intelligence. Cooperation is winning a source's willingness to provide useful information. What the Chinese were interested, the Koreans, the North Vietnamese was maybe five percent intelligence, 95 percent compliance, meaning creating propaganda.
That's a while different paradigm. And the approaches that they use, like sleep deprivation and torture, ultimately will get any one of us in this room to do things that we couldn't imagine today, but it doesn't necessarily mean our ability to provide useful information.
And he concluded later by saying, So, I think the key points there is -- are we trying to produce compliance, which is propaganda, or cooperation, which leads to intelligence? I hope, as you're evaluating these techniques, you will also consider the, I believe, widely held view of career professionals in the FBI, in the military, in the interrogation field who think that these techniques are not only wrong, but ineffective.
Two quick questions. We talked yesterday about the rules and regulations, the norms and the practices, the protocols and traditions of the department. I urged you to consider those.
You said that you would do so, and you referred to a variety of people.
I want to pin you down and ask you, sir, if you would pledge to undertake some formal process of review and evaluation of those internal protocols, norms and practices so that you get a report from experienced people on what needs to be repaired.
MUKASEY: I'm going to pledge to undertake to review the practices. I am going to pledge to consult people both inside and outside the department in the course of that.
Convening a formal process is something I can't commit to now. If it is necessary, and if I find that the results of inquiry and consultation don't yield a satisfactory result, I will consider that.
WHITEHOUSE: Will you agree to keep me informed of your activities in this area?
MUKASEY: I will.
WHITEHOUSE: Thank you.
Finally, in the event that you are sworn in as attorney general of the United States, do you believe that you'll be working for the people of the United States of America or the president of the United States of America?
MUKASEY: I will be working for all the people of the United States of America, and I see no antithesis between and working within the president's Cabinet.
I am -- I'm here because I've been nominated by the president. If I'm confirmed, I will be a member of the president's Cabinet, and I will serve as, I believe the certificate says, at his pleasure.
That said, my oath is to uphold the Constitution, and that's what I'm going to do.
WHITEHOUSE: There is a distinction that I believe your predecessor failed to appreciate between who has appointing authority for a position and where the duties of that position run.
Do you agree with that?
MUKASEY: I don't want to sit here, and I'm not going to sit here and criticize my predecessor. I have no such...
WHITEHOUSE: I'm sorry. I'll rephrase the question. Do you agree with that distinction?
MUKASEY: I have no such confusion.
WHITEHOUSE: Very good.
OK. Thank you.
Thank you, Mr. Chairman?
LEAHY: Thank you.
Judge Mukasey has requested a five-minute break, and we'll take a five-minute break.
I've been told you've requested one. No?
MUKASEY: Somebody missed a signal. I didn't.
LEAHY: Well, if you're not, then we will go to Senator Cardin.
I'm glad I asked.
MUKASEY: Maybe somebody thought I should have requested one.
SEN. BENJAMIN L. CARDIN, D-MD.: Thank you, Mr. Chairman.
Let me just ask a few more questions on torture, just to complete the discussion here.
If I understand your answers, if you determine, or if it's determined by the Department of Justice that an individual has violated the torture statute or the Constitution, and even though that person has acted under authority of the commander or the president, that if the determination is made that, in fact, the Constitution or statute has been violated, you would move to hold that person accountable.
MUKASEY: I would move to hold that person accountable after reviewing the facts of that case with...
CARDIN: Certainly. I implied that in the question. This is not trying to be a trick question. I'm just trying to determine.
You've been pretty clear about torture being unconstitutional. You've been pretty clear that our statutes are to be enforced. And I understand there could be some challenge as to the interpretation of those statutes, I understand that.
Which gives me the second point, that we've been going back and forth on, and in response to Senator Whitehouse's questions. What I guess I'm looking for -- and I think I feel comfortable with your answers -- is that you're going to be advising the president, advising our Department of Defense, advising our different agencies as to your independent judgment within the Department of Justice as to what constitutes torture, and that you're not going to be just responsive to try to defend what some commander may want because that person believes it's effective in getting information.
MUKASEY: That's absolutely correct.
CARDIN: Thank you.
MUKASEY: And now I'm going to request a short break, if I may.
LEAHY: Thank you.
MUKASEY: May I?
LEAHY: We'll take a break for five minutes.
LEAHY: I understand somebody's still trying to figure out how to turn this away from being a meat locker.
MUKASEY: I'm glad someone else noticed.
LEAHY: I apologize. Even as a -- even as a Vermonter, I find this very chilly.
CARDIN: Thank you, Mr. Chairman.
Judge Mukasey, I'd like to follow up on a discussion we had yesterday on voter suppression.
In your response, you said that voter fraud and voter suppression should go hand in hand, and it should not be an either/or situation. And I agree with that.
There's no disagreement that we want to make sure that those who are qualified to vote are the only ones that do vote, and we want to fight voter suppression issues.
The reasons for my questions is that many of us believe there has been resources taken away from voter suppression. And my question to you is whether you will commit to make sure there is adequate resources and attention in your department to voter suppression issues.
MUKASEY: I well understand the reasons for your concern. And I share it. And I will try to assure that.
CARDIN: Thank you.
And I -- and I very much appreciated your response in regard to the more recent types of attempts at voter fraud, to suppress votes by wrong information given out on Election Day. And I very much appreciate your attention and response on that issue.
MUKASEY: And when I characterized that as fraud, I wasn't trying to be cute and say it's distinct from voter suppression. It is fraudulent voter suppression. It is to be put down.
CARDIN: Thank you.
MUKASEY: So there's no ambiguity.
CARDIN: I appreciate that definitive answer.
Let me also return to one other subject we talked about, and that was the hate crimes activities, and just bring to the attention of this hearing the Community Relations Services within the Department of Justice, because I think that's a very valuable resource that can help provide assistance to communities and individuals who have been subject discrimination issues.
And I would just urge you to make sure there's adequate resources and attention given to that particular service.
I'll point out that in the Jena situation, I think it took over a year before there was any attention by that agency to the problems in Louisiana. And I just think that's a good community service offered by the Department of Justice. I would urge you to take advantage of it.
MUKASEY: I will. Thank you.
CARDIN: Let me bring up a subject that has not been brought up, and that is ethnic and racial profiling, to try to get your assessment of your commitment in this regard.
This type of activity has, unfortunately, been present in America for many years. In the 1900s, early 20th century, we had the Palmer raids that dealt immigrants. During World War II, we had Japanese- Americans who were interred. And Congress has taken steps to try to acknowledge and correct that mistake in our history.
CARDIN: More recently, there have been actions by law enforcement to target certain communities by profiling. And many of us believe that this is not what America stands for. And I would just like to get your thoughts on the use of ethnic or racial profiling.
MUKASEY: I'm one of the people who believes, as you said, that this is not what America stands for. We don't single out people by group. People get treated as individuals, and singling out groups and putting particular focus on groups or looking for particular groups when law enforcement activities are being conducted is not consistent with a system that evaluates each person individually.
I understand that and I want everybody else in the department to understand that. I believe they do, but I want to make sure they do.
CARDIN: And lastly, let me bring up another which I don't believe has gotten too much attention during this hearing -- that's the disparate case issues where you have a supposedly neutral action taken that has a negative impact on a minority community, whether it's in housing or employment or elsewhere.
The concern is that there had been less attention given to these types of cases during the last several years by the Department of Justice that, historically, has been give, whether it's in housing or whether it's in employment or other areas.
And I would just like to get your assessment as the importance to go after those types of activities that, on their surface, may appear to be neutral, but have had a negative impact on advancing rights for all Americans.
MUKASEY: I think when you find that a rule or a practice is having an impact on one group that is very different from the impact that it's having elsewhere.
You have to take a very close look and subject to very close scrutiny any such rule or practice, to make sure that we're not talking about something that is simply a cover or a code for something else.
CARDIN: I thank you for that response. I think you will find, among your career attorneys and staff within the Department of Justice, tremendous experience in this area.
And I think there has been a sense of frustration -- at least it's been expressed to some of us -- that that analysis has not gotten the type of attention that it should at the highest levels of the Department of Justice.
So I would just urge you to please take a look at those numbers, take a look at those cases that have been prepared, that have not been brought forward, because I do believe that there has not been the type of attention given to these types of cases that not only affect the specific practice but give clear guidance to the private sector, as to what will be accepted and not accepted in our society, in order to try to improve opportunity for all Americans.
So I'd just urge you to please take a look at what has been done. And once again, I thank you for your patience with this hearing and wish you well.
MUKASEY: Thank you very much.
CARDIN: Thank you, Mr. Chairman.
SEN. PATRICK J. LEAHY, D-VT. CHAIRMAN: Senator Specter is managing a bill on the floor, and he should be voting on it very soon. He wants to come back for another round, which, as a matter of courtesy, of course, I will grant. He is the ranking Republican on this committee. And he will come back at 2.
But before we break, I'd like to -- two things. One of the concerns I've had -- and actually, Senator Cornyn from Texas has joined me in this -- the practice of the previous attorney generals abetted the Bush administration's abuse of secrecy.
They encouraged Department of Justice officers to withhold information under the Freedom of Information Act, or FOIA, the bedrock statute that opens our government to our citizens.
As I've said many times, no matter whether you've got a Democratic or a Republican administration, they're going to be happy to send out press releases saying all the things that they did right. It's usually up to the press to find out the things they did wrong. And FOIA helps in that regard.
Will you commit to review and consider at least overturning some of these policies, number one? And, secondly, will you look at the legislation Senator Cornyn and I have put together with strong bipartisan support to reform FOIA?
And the reason we want to do it now, so that we can say we're doing it not having any idea who the next president is going to be and whether it's a Republican or Democratic administration.
We feel strongly about this, that it should be done now so that whoever is in that administration will have an open administration.
MUKASEY: I will certainly review the policies. And I -- well, obviously I can't say that before we had FOIA we didn't have a democratic system in this country -- we did. But we've certainly enhanced it substantially with that statute.
And I understand the value of it and the utility of it, and I'm going to look at the policies you mentioned with that in mind.
LEAHY: Well, we'll have -- we'll come back with -- I may have some further questions. But I am concerned that on a number of your answers yesterday, there was a very bright line on the questions of torture and the ability of the executive or inability of an executive to ignore the law.
That seems no where near as bright a line today. And maybe I just don't understand -- you're a lawyer from New York City, you've been a judge -- I'm just a lawyer from a small state of Vermont, so I may not fully understand the nuances, but I'm going to be asking further questions because I don't know whether you received some criticism from anybody in the administration last night after your testimony, but I sense a difference and a number of people here, Republican and Democratic alike, have sensed a difference.
I want to make sure we clear that up before we finish.
MUKASEY: I received no criticism. I had dinner with my family last night.
LEAHY: You did a lot better -- I did, too. I turned down a public event so I could have a quiet dinner with my family. You're probably a lot better off that way.
MUKASEY: Well, I should also point out that when you say I'm a judge from New York, I am a judge from New York and I've watched a lot of cross-examinations. And I know the way cross-examinations proceed. You start with an easy step and then you go down the road.
I don't want to go down the road on interrogation techniques -- that's obvious. Did the things that were presented to me seem over the line to me as I sit here? Of course they did. They were intended to, and they did and they do.
But part of it is it's not so much the question as it is the next question and the one after that. That's what concerns me. And I need to be, I think, very careful about where I go on that subject...
LEAHY: Let's think about it a little bit during the noon, but I will come back to it on the question. It's one thing to say the statute allows this or doesn't allow this, and that's it. I am concerned that you leave some opening that different parts of our government may be held to different standards or that some may be authorized to act outside the law.
And I'm carefully choosing my words at an open session, but we may want to go back to that issue.
MUKASEY: Thank you.
LEAHY: Thank you.
We'll stand in recess until 2:00. I thank you. We'll try to get the place warmed up before then.
LEAHY: Judge, I think that should be a tad warmer.
MUKASEY: It is. Thank you.
LEAHY: Good. I thank those who arranged that.
I mentioned that Senator Specter was managing a very significant bill on the floor. But he had another couple questions he wanted to ask, so I'll yield to him.
And then we'll -- I think we'll be able to wrap up with you. Although I must point out, as I did earlier, I may follow up on one point that we covered earlier this morning.
But I will have some follow-up questions, and I would hope you'd look at them very seriously. Thank you.
SEN. ARLEN SPECTER, R-PA. RANKING MEMBER: Thank you, Mr. Chairman.
Judge Mukasey, there has been a lot of controversy over the so- called Thompson memorandum and the McNulty memorandum with respect to the issue of attorney-client privilege, with a practice by the Department of Justice to obtain waivers of the attorney-client privilege; some controversy as to whether they're voluntary or to what extent they are not voluntary.
Legislation is pending which would eliminate that practice.
My concern arises on two fundamental propositions. One is that the commonwealth, the government, the state has the burden to prove its case. And secondly, the right to counsel is a constitutional right, and the attorney-client privilege is an indispensable part of the constitutional right to counsel.
I've had some experience in the field, having been D.A. of the city of Philadelphia. And I would never have considered asking a defendant to enable me to prove his case, metaphorically speaking, out of his own mouth.
The department has made some modifications from the Thompson memo to the McNulty memo by raising the level within the Department of Justice from assistant attorney general to deputy, whether there's a request for a waiver on facts or a waiver on opinions given by the attorney.
SPECTER: You, of course, are very familiar with this issue for many reasons. You have ruled on the issue.
Is there any real justification for having a waiver on anything other than a purely, purely voluntary basis?
MUKASEY: First of all, on -- I should start out agreeing with you on how fundamental the privilege is. Absent privilege, the right to counsel is nearly meaningless. You can't get counsel -- you can't be expected to disclose the facts to your lawyer so as to get good counsel if what you think you're doing is disclosing them, ultimately, to the prosecutor.
In the corporate setting, the issue -- the overriding issue on whether to prosecute a corporation or not prosecute a corporation is what happened, who did it, how pervasive the conduct was and whether all of this rises to the level that requires prosecution, not only of individuals -- because after all, corporations can act only to individuals -- but of the corporation itself.
And in the course of that, a lot of that has gotten lost with focus on looking for waivers of attorney-client privilege or other rights of the corporation.
I think part of this is because corporations are run by directors who have an obligation of fiduciary duty to find out facts. And because they often do appoint committees to find out facts and do reports, it is -- the existence of those reports is well known and their availability is, in a way, tempting, they help prosecutors save time in finding out facts and...
SPECTER: Well, if the directors want to waive the corporate privilege, they can do that if it's their voluntary decision. That wouldn't necessarily involve the employee who has a separate privilege.
But the difficulty arises that if the privilege is not waived, there are tougher charges -- the prosecuting attorney has vast discretion, as we all know, on charging. In many ways, the prosecuting attorney is the most powerful person in the government -- said to have the keys to the jail in his pocket, not only on charging, but on recommendation of sentence -- an awful lot of coercive power.
And that's where their problem comes in. If they want to do it voluntarily, nobody ever told him before Thompson, McNulty memos that they couldn't do it.
MUKASEY: Particularly, when it involves a corporation where the very bringing of the charges often is the end of the road.
I think that the problem that's arisen under those memoranda is that when corporations want to say that they're cooperating with prosecutors and want to get a deferred prosecution or a non- prosecution agreement, the prosecutors are told that when they're evaluating standards for determining whether the corporation is, in fact, cooperating or not, the degree to which the corporation discloses facts and thus waives its privilege is one measure.
I think, though, that...
SPECTER: But why should cooperation or a waiver of a right determine what the charge will be or what the sentence recommendation will be?
If you plead guilty, it's well known that -- show contrition, that that's to be taken into consideration in some litigating factor. But why should failure to waive a constitutional right be an aggravating factor?
MUKASEY: I think it's not intended to be made an aggravating factor, but simply that if a corporation, through its individuals, which is the only way that a corporation can act -- if there's been a violation of law, there's always a question of whether the corporation should be prosecuted or not.
And it's not a question...
SPECTER: Do you think the McNulty memorandum is a solid approach to this issue?
MUKASEY: I haven't reviewed the McNulty memorandum recently. I think it has to be examined very, very carefully. And the point made that that is not to be used as a club and a corporation is not to be told, You're not going to be -- you want to say you're being cooperative? If you haven't waived the privilege, you haven't been cooperative. The conversation stops here.
SPECTER: Well, if it's thought to be used as a club, that's fine. But it is a club and it is used as a club from while we were here.
Senator Leahy and I sat down with the Deputy Secretary McNulty and tried to find some common ground and we couldn't do it.
So, let me ask you to -- you say you haven't reviewed it. I know there are too many things for you to have reviewed in the short period of time between your designation here. But if you would do that, we'd like to talk to you more about it because the legislation is going forward.
There's a great hue and cry for it because there is a great feeling, from far and wide, that it is unfairly used.
And we recognize the seriousness of corporate crime. We know the impact and we see what's happening with Enron and other companies and are concerned that aiders and abettors be held responsible, civilly at the minimum.
But when a constitutional right is involved, we'd like to see a little closer, more careful analysis.
MUKASEY: I agree.
SPECTER: On the issue of the request for the resignations of the United States attorneys, we are at an impasse.
I was consulted by Attorney General Gonzales as to what he should do. And I recommended to him early on privately, and then said it publicly in this room, that the best course would be to make a full disclosure as to everything that had happened and to lay it all out as to whether there was a justification for the request for those resignations.
Right now there are some subpoenas outstanding, and they involve high-profile people such as White House counsel and deputy White House counsel, Ms. Miers and Mr. Rove. And we have tried to find a way of accommodating what the president wants to do.
He undertook this issue himself in a nationally televised news conference to say that he did not want them to be questioned by both houses' Judiciary Committees. And if there's agreement there that we don't have to do that, we could have a few members of the Judiciary Committee from each house, bipartisan, question.
He didn't want them under oath. We'd prefer them under oath, but said OK, no oath. There's a penalty for a false official statement in any event.
He didn't want them with a transcript, and we said that's not a good idea, we should have a transcript. I had a chance to talk to him personally about it. The transcript is more for the protection of the individual. You walk out of a meeting and there are five different views as to what was said. But we'd even agree to forego that, or at least I had.
And then we wanted a commitment that we wouldn't go any further if we were dissatisfied, and we felt we couldn't make that commitment without abrogating our responsibilities. And if we wanted to proceed further, we were going to do that.
And, of course, you haven't been inside this issue. What I'd ask you to do is to take a close look at it, see if you can help us resolve this impasse, at least on the transcript.
Let me ask you, do you see any problem or isn't there a great benefit to everybody, especially the person being questioned, to have a transcript so there's no doubt as to what was said?
MUKASEY: There is often a great benefit to everybody from having a transcript.
But I think, as is true of many conversations, it's often a lot easier to talk and to actually get facts when somebody isn't sitting there watching every syllable they say, so as to be sure not to make a misstep. Often...
SPECTER: I'd like us to go off the record -- cease the transcript here, Mr. Chairman. I think we might (inaudible) here.
MUKASEY: I'm sorry, I did not mean to suggest that we should cease the transcript here.
SPECTER: Well, you're weighing every syllable just as you described it, Judge.
LEAHY: We haven't ceased the transcript. I don't want you to be fooled by that. Think it's probably still going on.
Besides, we've got one, two, three, four, five cameras.
MUKASEY: I beg your pardon?
LEAHY: A half a dozen cameras here. You can assume every word's being followed.
MUKASEY: I can, and...
SPECTER: Pardon my interruption, Judge Mukasey, but you were just describing yourself. I couldn't help but note that, that we might find out more from you if we stop the transcript.
MUKASEY: I think what you found out from me is everything that's there.
SPECTER: Well, if you have doubts about a transcript, I'd ask you to take a look at it, and we'll come back to that.
I'm trying to move these areas as fast as I can.
I gave you a letter, when I saw you recently, Judge Mukasey, about oversight. This is a very sticky issue. And I've made it a practice to give a letter, as I did to Judge Gonzales and to the deputy attorney general and to others, on the essential question of the breadth of congressional oversight.
And it was summarized, as I pointed out to you, in a Congressional Research Service analysis, which essentially says that DOJ has been consistently obliged to submit to congressional oversight, regardless of whether litigation is pending, so that Congress is not delayed unduly in investigating misfeasance, malfeasance or maladministration at DOJ or elsewhere.
And it includes -- as the memo from Congress Research Service says, including testimony of subordinate DOJ employees, such as line attorneys, FBI agents.
Investigating committees were provided with documents respecting open or closed cases, that included prosecutorial memoranda, FBI investigative reports, summaries of FBI interviews, memoranda and correspondence prepared during the pendency of cases.
Would you agree that that's an accurate statement of the legitimate scope of congressional oversight?
MUKASEY: I have no way to dispute the accuracy of the history that's set out there, that there have been instances in which each of those categories of information has been produced.
As I sit here, it seems apparent that there are also instances when the pendency of a case or some other issue, or some issue of privilege, if there is one, is going to result in hesitancy to produce the kind of information that you read off.
I think it needs to be approached very carefully, on a case-by- case basis.
I've said in the past -- now I'm having a hard time distinguishing between the private meetings and this session -- that I don't think that oversight is a zero-sum game, in which everything that gets disclosed is somehow a loss for the department and everything that doesn't get disclosed is somehow a gain.
You have a very broad oversight authority. And it's something that benefits not only the process, but the department as well, because it assures that it keeps a high level of performance.
I recognize that. And I want to -- that's why disputes in the past, to the extent that there have been any, historically, have been worked out. The going to extremes has been, as I understand it, very much the exception.
MUKASEY: And I hope it'll remain very much the exception; I hope there won't be any of it.
SPECTER: Well, is the sum and substance of what you're saying that you agree with what I read as a generalization?
MUKASEY: I agree what you read has happened in the optimum case, yes.
SPECTER: What is the optimum case?
MUKASEY: The optimum case is the case in which the kind of information that you mentioned can be disclosed without any adverse impact on pending litigation, on privilege, on the ability of the department to function.
SPECTER: Well, if the sole determiner of adverse impact is the government, we don't get very far.
MUKASEY: That's not the sole determinant.
That's why I said this is something that's always been worked out -- or almost always has been worked out in discussions between the department and the committee and people in...
SPECTER: So, that's a fair generalization to be worked out on a good-faith basis between Congress and the Department of Justice?
MUKASEY: It is. It is.
SPECTER: You say it is?
MUKASEY: I did. Yes.
SPECTER: I'm almost finished. Just a couple more questions.
Judge Mukasey, the Combat Status Review Board was a subject of an inquiry yesterday. And it's a very long subject and I'm not going to take up the time to do it now. But instead, I'm going to ask for you to review it.
I'm going to ask you to review the case I call to your attention under the caption of In Re: Guantanamo case, which (inaudible) a proceeding before the Combat Status Review Board where a detainee was charged with associating with Al Qaida people. As for the name, nobody could give it to him. And as the report says, there was laughter in the courtroom, the proceeding was so ludicrous.
I would ask you to take a look at the statement of Lieutenant Colonel Stephen Abraham describing what goes on in the Combat Status Review Board from a person on the inside.
Shortly after this, received a lot of notoriety that the Supreme Court granted a petition for reargument in the case now pending. And I think, in anticipation of that oral argument, that the government has now come up with another procedure, which has not been fully explained.
And it is true that you can have a substitute under Swain, but it has to be an adequate substitute. And the Swain case dealt with habeas corpus in the District of Columbia equivalent of a state court, with the only difference between the tenure of the judge. Very close to federal court habeas corpus.
I'd like you to take a look at that.
And the final question I have for you is on the question of the government notifying people under investigation that it's over, whenever it is over.
And I've heard a lot of complaints that people are under investigation, the matter goes on forever, and they never know whether they are or not. There's a great deal of apprehension, understandably, when people are under investigation.
And we're advised that some U.S. attorney's offices tell the person, when the investigation is over, if they really know it's over. And there, I'd like you to take a look at that again, to see what uniform policy could be handed down.
Do you think, as a general matter, that fair play -- wouldn't you agree that fair play would be best served by telling people when it's over, if it is over?
MUKASEY: If it's over, I agree that it's desirable for people to know that it's over.
There is a myriad of cases where it's frequently uncertain. In different kinds of cases -- in organized crime cases and so on, it's, regrettably, hardly ever over.
I'm -- I'm -- I agree to take a look at it. That I will agree, yes.
SPECTER: Well, I would agree with you that if it's not clear that it's over, they are entitled to be notified. But where it is, I would hope that there would be a policy that they would be notified.
MUKASEY: And it's also, in part, a difficulty because it can -- it can hurt somebody more when there's a policy to notify somebody an investigation's over and for some reason it can't be done in a particular case, for a person not to be notified, then if there were not a policy of doing that, it's, kind of -- in a way, it's, kind of, a two-edged sword.
MUKASEY: So I think we have to be -- difficult, but I'd like -- we have to be (inaudible).
SPECTER: Well, if you'd take a look at that again, like so many other matters.
Judge Mukasey, you have been a very impressive witness, very impressive credentials coming to this nomination, very impressive in your testimony here. And unless the witnesses who are here today, who were called in support of your nomination, change their minds and give highly damaging testimony, I think you are virtually certain to be confirmed.
And we're glad to see the appointment, and glad to see somebody who is strong, with a strong record, take over this department.
And the chairman and I will -- and all the members of the committee, and probably many in the Senate, will have a lot of contacts with you. And we look forward to being helpful to you. And we look forward to cooperative efforts on many very important problems which face the Department of Justice and this country.
MUKASEY: Thank you very much.
SPECTER: Thank you.
Thank you, Mr. Chairman.
LEAHY: Thank you, Senator Specter.
I note that since earlier today you've been extremely careful in some of your answers. I have a problem, because some seem to be backing off from yesterday. But I will say this: that I much prefer at least a careful answer to 75 or 80 times of, I don't know the answer, or, I can't answer that, that we used to have from your predecessor.
I mentioned Jack Goldsmith in my opening remarks. He was a former head of the Office of Legal Counsel. His book, The Terror Presidency, which I understand you've read -- you can see how well annotated it is here.
In a similar vein, a PBS program, Frontline, this week had an extraordinary program. They had a Pulitzer Prize-winning reporter for the Boston Globe. That's Charlie Savage. He wrote, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy. And I know some of the people who have written notes in the back, so they go across the political spectrum of concern there.
All of these reports conclude the Office of Legal Counsel has been changed from the traditional place it's had in administrations, where you just go to get a clear-cut legal definition. Instead it's been the place where the administration's gone -- a lot of times they find under the law they can't do something, they go there, it's kind of like you put in, and ask for your customized legal opinion so they can go ahead and do it.
For example, on the opinions on torture, Professor Goldsmith wrote, In effect gave interrogators a blank check.
And he said the opinions read like a bad defense counsel's brief.
You testified yesterday that as attorney general you'd review the legal opinions of the Office of Legal Counsel. Would you add to the list of opinions you're going to review those on executive privilege?
MUKASEY: I will.
LEAHY: And those on immunity of executive officials from congressional testimony?
MUKASEY: I will.
LEAHY: If you disagree with them, will you change them?
MUKASEY: I will do that.
LEAHY: I will go by that assumption that if you don't change them you agree with them. Would that be a fair assumption?
MUKASEY: That'll be a fair assumption.
LEAHY: Thank you.
Would you agree that the office has to have independence?
MUKASEY: The office has to adhere to one standard and one standard only, and that is what the law requires.
LEAHY: I would hope that you would try to get it back to that.
I've been here with six administrations, Republicans and Democrats, and they've always appeared to have independence in the Office of Legal Counsel before now.
I don't believe, for example, that a president can step outside the law on issues of torture or wiretapping.
So I hope that the hearings turn out to be a step on the road to restoring the Department of Justice.
It needs it desperately.
I have talked to you privately about the fact that I hope that you put back a Department of Justice that can be in good hands for whomever your successor might be, as the 82nd attorney general.
That might be in a year. It might be in several years. I have no way of knowing.
I have no way of knowing whether we're going to have a president of my party or a president of your party.
But I think we can both agree, no matter what party you belong to, you need a strong, independent attorney general and Department of Justice.
Now, I think we face the most serious threat to the effectiveness and professionalism of the Department of Justice since Watergate and the Saturday Night Massacre.
After President Nixon became the only American president to resign from office, President Ford appointed Edward Levi and former Judge Harold Tyler, someone both you and I admire, to begin the process of restoring the Department of Justice.
It's too important an institution in our country to remain dysfunctional.
I might say, as a personal (inaudible) senator from Vermont, I hope that a Judge Mukasey, like Judge Harold Tyler with whom you worked, will begin to restore the department's integrity.
You've testified that the department must stand for the rule of law. I agree. I would also add this mandate: It must stand for justice.
Nothing's more fundamental to our constitutional democracy than the precept that nobody's above the law, neither you nor I nor a president.
I believe this administration has undercut that precept time and time again.
The president's commutation -- I realize he has a power to do this, but a commutation of the sentence given to Scooter Libby, former chief of staff to the vice president, who was convicted after a jury trial of lying to the FBI and to a grand jury and obstruction of justice -- commuting the sentence even before the appeal was heard.
We see them promoting immunity over accountability; certainly secrecy over congressional oversight; unilateral power over the checks and balances that have defined this nation. Actually, I might say those checks and balances not only define the nation, they've protect your liberties and mine for over two centuries.
And I don't believe the president is above the law, even though many in the administration seem to feel he is. And a view that may override the laws he chooses is an extreme abuse of executive power as I've witnessed. I think it's dead wrong. But I think it's extremely dangerous to our democracy.
The cost to our American liberty, our stand in the world, the security of our soldiers and citizens can be staggering if we allow the president to be above the law; even more staggering than the trillion dollar cost of the war in Iraq.
And I think when the administration compounds its lawlessness by cloaking its policy and its miscalculations under a veil of secrecy, that leaves the Congress and the American people in the dark about what it's doing.
I've not known any administration, Republican or Democratic, who hasn't been helped in the long run by having a real searching oversight and having to admit, publicly, mistakes.
Now, you and I have had some talk. We've had private meetings and we've had open meetings here. I've been here for virtually all your testimony and listened to it.
I do worry that there has been a retreat today from the clearer statements on the rule of law and the president not being above the law made yesterday. That's why I'll follow up with some very specific letters.
If you have questions about what I have, just call me, and we'll sit down and go over them.
I don't want to see you appearing to posit a system where a president's overbroad and invalid claims of executive privilege can't be tested. So we'll continue to meet on that. I know that Senator Specter and the others will want to.
The attorney general has to uphold the Constitution and the law. He can't bend the law to fit whoever the president is. And I'll say that no matter who the president might be.
We can't define torture down in secret and fundamental conflicts with American values and law.
I agree with what you said in your opening statement, which I thought was very good. You spoke of protecting civil liberties and people's confidence that those liberties are protected as part of protecting national security. I agree with that and also add they're a fundamental American strength and American value: one of the things I'm sure that appealed to your father when he came to this country. It certainly did to my grandparents and my great grandparents when they came to this country.
So the hearing's going to be the start of a new chapter. American laws and our values are no longer undercut in secret.
You know, the question in this hearing is not whether you'll be confirmed. The real test is going to be what kind of an attorney general you'll be. That's a test, but it's also a legacy you'll leave to your family, to your two -- I hate to call you children; you're far beyond that. But I've been very, very impressed with both your son and daughter, and certainly it's a legacy that you and your wife can cherish. And it's one that you want to be able to leave this office, as we all do, in ours, with your head high.
The oversight process and the attorney general's cooperation with that process can forge a working partnership. To paraphrase Ronald Reagan, a confirmation by the Senate is an act of trust. Oversight helps us verify.
And this committee and both parties are ready and willing to work with you. I think we've already begun.
And, Judge, I don't mean to take the last word here. If you want to add something to that before we go to the next panel, please feel free.
MUKASEY: I couldn't add in any way that would improve it.
The only thing I can tell you is that if you ultimately do repose trust in me, I'm going to spend the next however many months it is trying to vindicate that trust.
I'm very grateful to you for this.
LEAHY: Thank you.
Well, you have, your family, my family, have 300 other million Americans who need you to do that.
We'll stand in recess for five minutes, and then Senator...
CARDIN: If the chairman would...
CARDIN: It's my understanding that there is now scheduled votes on the floor starting at 2:30, and there are four votes that are scheduled. So it may be better for us to recess until about 3:45 to start the next panel so that we don't have to interrupt.
LEAHY: Recess to the call of the chair. Thank you.
Thank you, Judge.
CARDIN: The Judiciary Committee will come back to order on the confirmation hearings of Judge Mukasey for attorney general of the United States.
I want to welcome the panel of outside experts. We thank you very much for your cooperation in being here today. It's very important that the record in regards to the confirmation of an attorney general -- that there be opportunity for witnesses that know the nominee or could add to the consideration of the committee have an opportunity to give that testimony.
And we thank you all for agreeing to be here today and to be witnesses at this hearing.
As is the tradition of the Judiciary Committee, I'm going to ask you all to rise in order to take an oath.
Do you affirm that the testimony you're about to give before the committee will be the truth, the whole truth and nothing but the truth, so help you God?
We will start with Mr. Thornburgh.
Mr. Thornburgh has served as governor of Pennsylvania, attorney general of the United States for two presidents, and was the highest ranking American at the United Nations.
Elected governor of Pennsylvania in 1978 and reelected in 1982, Governor Thornburgh was the first Republican ever to serve two consecutive terms in that office.
Governor Thornburgh served three years as attorney general of the United States in the Cabinets of President Ronald Reagan and George H. W. Bush.
During his service as undersecretary general at the United Nations, Governor Thornburgh was in charge of personnel, budget and finance matters. He also served as a consultant to the United Nations and the World Bank on efforts to battle fraud and corruption.
Governor Thornburgh received his bachelor's degree from Yale University and his law degree from the University of Pittsburgh, where I graduated from, the graduate school.
Governor Thornburgh, it's a pleasure to have you here.
RICHARD THORNBURGH, FORMER U.S. ATTORNEY GENERAL : Thank you, Senator Cardin.
It is an honor to appear before the committee today and offer my views on the Department of Justice at this important juncture in its history, to tell you why I support President Bush's nomination of Michael Mukasey to be the 81st attorney general of the United States.
The current situation at the Justice Department is in some ways similar to one that I encountered when I became the 76th attorney general in August 1988. Two senior Justice Department officials, the deputy attorney general, Arnold Burns, and the assistant attorney general in charge of the Criminal Division, William Weld, had resigned their positions earlier that year because of their concerns about the ability of my friend and then-Attorney General Ed Meese to lead the department while he was under investigation by an independent counsel.
These resignations reflected some degree of turmoil within the department. Although the independent council did not seek to prosecute Attorney General Meese, his report, which was issued in July 1988, was sufficiently critical that Ed Meese chose to resign from office early in August 1988.
After confirmation, I was sworn into office shortly thereafter.
I considered it to be a unique honor and privilege to return to the Department of Justice, a great institution that I loved and still love.
I had previously served as the United States attorney for the Western District of Pennsylvania and the assistant attorney general in charge of the Criminal Division under President Ford during the immediate post-Watergate era.
Those experiences heightened the most profound respect I held for the department, for its critically important and unique role in our federal government and for the legal abilities, professionalism and integrity of the career civil servants who carry out its vital missions.
Early in my service as attorney general, I established a major priority, the restoring of morale within the Department of Justice in the wake of the recent turmoil at its very top ranks.
With the indispensable assistance of that distinguished cadre of career employees to whom I referred, I believe that we were able to do so and to lead the department in the successful execution of its law enforcement functions and its vitally important role in the administration of justice.
Today, the Department of Justice is enduring another unfortunate period of turmoil at the top. There is no confirmed attorney general, no confirmed deputy attorney general, and no confirmed associate attorney general. There are no less than six vacancies among the assistant attorneys general and more than 20 vacancies among the United States attorneys.
Although I strongly commend the job that acting Attorney General Peter Keisler and the solicitor general, Paul Clement, are doing under difficult circumstances, the department simply cannot function at the very highest level of efficiency and effectiveness with so many major vacancies in its top leadership corps.
Let me comment in particular on the importance of the Justice Department's enforcement of our nation's criminal laws. The prosecutorial function is a unique responsibility of the Department of Justice within our federal government.
Although I am not passing judgment on the recent controversy over the dismissal of certain United States attorneys, I will say that it is absolutely essential that the unique prosecutorial function of the Department of Justice be carried out in a strictly nonpartisan, unquestionably fair and even-handed manner, both in fact and in appearance.
In other words, federal prosecutors must follow the evidence where it leads, without fear or favor. Nothing could be more important.
The Department of Justice simply must retain its unique degree of independence, because the department alone, among the agencies of the federal government, has the power of criminal prosecution.
You will hear from a distinguished former United States attorney, Mary Jo White, and an equally distinguished former district court colleague of Judge Mukasey's, Judge John Martin, to testify about the personal qualifications of Judge Mukasey to be our attorney general.
While I have only recently met Judge Mukasey, I, like many others, admire his record.
He spent four years as a career federal prosecutor in a very important U.S. attorney's office, that of the Southern District of New York.
It is a testament to his record of accomplishment in that role that President Ronald Reagan nominated and, by and with the advice and consent of this body, appointed Michael Mukasey to be a judge of the United States District Court for that same district.
In his 18 years on the federal bench, Judge Mukasey served with distinction, earning, in particular, a well-deserved reputation for the manner in which he conducted the proceedings of his trial court in major cases of importance to the national security of the United States.
Just as the role of federal prosecutor is a unique, independent and nonpartisan one, so the job of a United States district judge is one that must be conducted in exactly the same manner. Judge Mukasey has a strong reputation for having done precisely that.
At this critically important time for the Department of Justice, in Judge Mukasey, the salient qualities of the person and the critical needs of the moment are well matched.
There is no question in my mind that Michael Mukasey is the right person, at this time, to fill the supremely important, singularly unique role of chief law enforcement officer of the United States.
In closing, let me recall one of the most moving and memorable experiences of my service as attorney general.
It was in 1989, when it was my privilege to lead the Department of Justice during the celebration of the 200th anniversary of the creation of the office of the attorney general of the United States.
Nearly all of the living attorneys general, stretching all the way back to President Eisenhower's first attorney general, Herbert Brownell, returned to the Department of Justice for a historic commemoration of that milestone.
We were also honored to have Ethel Kennedy, the widow of the 64th attorney general, Robert F. Kennedy, in whose honor the main Justice Department building is now appropriate named.
The group included distinguished attorney generals appointed by presidents of both party, including such giants as William Rogers, Nicholas Katzenbach, Elliot Richardson, Edward Levi and Griffin Bell.
I am confident that when Michael Mukasey takes office as our nation's 81st attorney general, the Department of Justice can and will embark on a time of healing, renewal and exemplary leadership.
I am equally confident that ultimately, when he leaves office, Judge Mukasey will have earned his own place among the top ranks of our nation's finest attorney general.
Let me add before I close that I would like to associate myself with the views of Senator Specter expressed this morning in the Wall Street Journal calling for Judge Mukasey, if confirmed, to end the Department of Justice's assault on the attorney-client privilege in corporate investigations, which began in the Clinton administration and has been carried forward in this administration.
A broad coalition which reaches from the Chamber of Commerce and the National Association of Manufacturers, on the one end, to the American Bar Association and the American Civil Liberties Union, supports action to restore and reinvigorate this historic privilege. And I hope that Judge Mukasey sees fit to give it his attention.
Thank you, Mr. Chairman. I would be pleased to answer any questions that you may have for me.
CARDIN: Thank you very much for your testimony.
We'll now hear from Mr. Chuck Canterbury. President Canterbury joined the Fraternal Order of Police in 1984 when he, along with 11 other officers, chartered their local lodge. He served as a local lodge president for 13 years, during which time he was instrumental in starting the lodge legal defense plan, purchasing the first lodge building, and starting the lodge insurance program.
He began his service on the Grand Lodge Executive Board in 1995, when he was elected to the first of three terms as second vice president. During this time, he has worked to expand the police labor movement in areas of our country which do not have collective bargaining rights.
President Canterbury retired in January 2004 from the Horry County Police Department in Conway, South Carolina, where he most recently had oversight of the Operations Bureau.
During his 25-year career as a police officer he worked in the patrol division, the criminal investigation division, and served as the training division supervisor, during which he was certified as an instructor in basic law enforcement, firearms, chemical weapons and pursuit driving.
He earned his bachelor of arts degree from Coastal Carolina University.
It's a pleasure to have you here, Mr. Canterbury.
CHUCK CANTERBURY, PRESIDENT, FRATERNAL ORDER OF POLICE: Thank you, Senator.
First of all, I'd like to thank the Judiciary Committee for allowing the Fraternal Order of Police, the largest police labor organization in the country, to have input on such an esteemed position, which has much responsibility in the area that I've spent my entire career.
As the nation's top law enforcement officer, we feel it's important as the nation's largest law enforcement organization to be allowed this input, and we're very pleased.
And I'd like to personally thank Senator Leahy for the invitation.
As many of you know, we consider Senator Leahy to be a stalwart for law enforcement in the rank-and-file officers in this country, and we're very appreciative of his support and his request for us to be here today.
In the matter of Judge Mukasey, he has a long and distinguished career in public service, which began with him becoming an assistant United States attorney in the Southern District of New York. In 1987, he was nominated for the federal bench, in that same district, and was unanimously confirmed by the Senate.
And he has spent the last 20 years as a federal judge, including his last six as chief justice in one of the toughest, busiest and prominent of our nation's federal courts.
During this tenure, he oversaw some of the most important and complicated national security cases, including the successful prosecution of Omar Abdul Rahman, the Blind Sheik, who plotted to destroy the World Trade Center in 1993.
His handling of this case earned him widespread acclaim and respect from his peers and the nation's law enforcement community.
In fact, the U.S. Court of Appeals for the Second Circuit specifically praised him, noting he demonstrated, quote, extraordinary skill and patience during that case and superbly handled challenges far beyond those normally endured by a trial judge.
Judge Mukasey has issued the first ruling in the legal challenge brought by Jose Padilla. It was a very thoughtful and well-reasoned decision.
He ruled that the president does in fact have the legal authority to detain as enemy combatants citizens captured during a time of war, but yet he also ruled that those citizens should have monitored access to an attorney.
His deft handling of the issues in the Rahman and Padilla cases, and the challenges he faced as the presiding judge in these cases, prompted him to write an article in the Wall Street Journal which argues that current statutes and institutions which compromise the U.S. legal system are ill-suited to handle the prosecution of terror suspects without compromising homeland security or foreign intelligence sources.
Clearly, in this decision, he has given a great deal of consideration to the challenges faced by our legal system and our law enforcement community, when it comes toward threats from terrorists.
In the opinion of the Fraternal Order of Police, this strongly recommends Judge Mukasey for the position of U.S. attorney general, as well as having him there when we're facing the challenges that we are currently in the war on terrorism.
The FOP has had the honor of representing rank-and-file law enforcement officers in many localities and states. And we are the bargaining unit for over 300,000 officers in this country. And for this reason, our interest in the cases that Judge Mukasey had been involved in over his career have not been limited to just his high- profile cases related to national security.
We are extremely satisfied with his record on the matters in criminal law that involve most of our membership and the labor organizations that we represent.
We are also keenly interested in those cases which he has had to make rulings in, which touch the rights of employees, particular public employees.
And we are pleased to report to this committee that he demonstrated just as much skill and evenhandedness in those cases that we were able to examine as he did in the cases that generated nightly headlines.
His distinguished career has earned him the respect of the law enforcement community. And we are very much in favor of his appointment and his confirmation by the United States Senate.
And we'd be glad to answer any questions for you, Mr. Chairman, or any member of the committee.
CARDIN: Mr. Canterbury, thank you very much for your testimony.
We'll now hear from Admiral John Hutson.
Admiral Hutson attended Michigan State University, where he received his B.A. Upon graduation, he was commissioned in the United States Navy. He then went on to graduate from the University of Minnesota Law School in 1972.
In 1973, he was assigned to the law center at Corpus Christi, Texas, where he served as chief defense counsel and chief trial counsel.
In 1980, Admiral Hutson attended Georgetown University Law Center, where he earned a master's of law degree in labor law.
He was then assigned as legislative counsel in the first of three tours in the Office of Legislative Affairs for the Navy.
Admiral Hutson assumed duty as executive officer of the Naval Legal Services Office in Newport, Rhode Island, in 1987. In 1989, he returned to Washington, D.C., to serve as a staff judge advocate and executive assistant to the Commander Naval Investigative Command.
In August of 1989, Admiral Hutson moved to the Office of Legislative Affairs as director of legislation. Between October 1992 and November 1993, he was assigned as the executive assistant to the judge advocate general of the Navy. And in November 1993, he resumed duty in the Office of Legislative Affairs.
In August of '94, he assumed duty as commanding officer, Naval Legal Services Office Europe and Southwest Asia, located in Naples, Italy.
In July 1996, Admiral Hutson returned to the Naval Justice School as commanding officer. He was promoted to the rank of rear admiral and assumed duties as the judge advocate general of the Navy in May of 1997.
Admiral Hutson was awarded the Distinguished Service Medal, the Legion of Merit with three gold stars, the Meritorious Service Medal with two gold stars, Navy Commendation Medal and Navy Achievement Medal.
It's certainly an honor to have Admiral Hutson with us today.
FRATERNAL ORDER OF POLICE REAR ADMIRAL JOHN HUTSON (USN, RET.): Thank you, Senator Cardin. I probably should have sent a shorter bio in to the...
CARDIN: That's very impressive. You deserve the entire introduction.
HUTSON: Oh, thank you.
And thank you to the committee for inviting me. I have a written statement that I'd request be made a part of the record.
CARDIN: Your entire statement will be made part of the record, as will all of the witnesses' entire statements be made part of our record.
HUTSON: Thank you, Senator.
I testified a few years ago in opposition to the nomination of -- confirmation of the former attorney general, along with my good friends Harold Cole at Yale and Doug Johnson at the Center for Victims of Torture.
Unfortunately, our concerns at that time turned out to be prescient.
I'm not here today to testify in opposition at all to the confirmation, but rather to simply highlight some of the concerns that I have and what I believe to be important areas of consideration.
And I'd like, first of all, I guess, to make two points, which may, perhaps, seem to be unrelated but, in fact, are very much related.
One is the point that virtually all the witnesses have made and can't be gain said, which is that the United States is a country of laws, we adhere to the rule of law, or we should try to, and that there's no one more important in that regard than the attorney general of the United States.
The second point that I think is related to that is that most of the great nations in history that have failed have failed as a result of foreign and domestic misadventure.
Our adventure right now, foreign and domestic, is the so-called global war on terror, which I think is actually three different wars.
But in that struggle, the enemy cannot defeat us militarily. They don't have the lift, they don't have the command and control, communications. They don't have the weapons systems. They can't defeat us militarily.
Winning for the enemy is to cause us to change, to bring us down to his level, to cause us to be something different than what we have been.
Our great strength, the support of human rights and the rule of law. Thomas Paine said that, The cause of America is the cause of all mankind. The great more recent geopolitical commentator Bono said that, America isn't just a country, it's an idea.
We are engaged in an asymmetric war. And in an asymmetric war, the strategy is to pit your strength against the enemy's weakness, unlike World War II, for example, where it was often strength against strength.
Our great strength is our ideals. Thomas Paine and Bono had it right.
The enemy is abjectly devoid of ideals. So the enemy can't defeat us -- certainly can't defeat us militarily, but we can commit national suicide by disarming ourselves of our ideals.
And there are lots of unfortunate examples of how we have started down that road: the Bybee torture memo, the Gonzales' memo with regard to the Geneva Conventions, suspension of habeas corpus, combatant status review tribunals, Guantanamo and indefinite detention, lots and lots and lots of examples of torture. We can all say that the United States doesn't torture, but all you've got to do is read the newspapers and you see lots of examples of it.
And more recently, the CIA authorized enhanced interrogation -- a lovely euphemism -- justified by secret memos, legal opinions from the Department of Justice.
Let me give you some examples of where that road is not.
Going back to 1950, The United States -- this is the armed forces officer -- The United States abides by the laws of war. It's armed forces in their dealing with all peoples are expected to comply with the law of war in spirit and letter. Wanton killing, torture, cruelty or the working of unusual and unnecessary hardship -- we all talk about torture; back then they were talking about the working of unusual, unnecessary hardship -- on enemy prisoners or populations is not justified under any circumstances.
Article 30-93 (ph) of the Uniform Code of Military Justice: Cruelty and maltreatment: Any person subject to this code is guilty of cruelty toward or oppression or maltreatment of any person, subject to his orders, shall be ordered punished as a court-martial may direct.
Common Article 3 of the Geneva Conventions: Following acts are and shall remain prohibited at any time and any place whatsoever, including, among others, outrages upon personal dignity, in particular humiliating and degrading treatment.
The Supreme Court never said part of Common Article 3 applies. The Supreme Court said Common Article 3 applies. That includes outrages on personal dignity.
We don't need a measured repudiation of those definitions of torture as being mistakes or unnecessary. We need a clarion call. We need a ringing, unequivocal repudiation of those definitions of what has happened that is so strong that it brings tears to your eyes and makes small children wince in its force.
We are not engaged in an existential struggle here, unless we make it so. Only Americans can make America change.
If we falter now, or cower as a nation in the face of this adversity, if we disarm ourselves, we don't deserve the gifts that were given to us by those early patriots or by the world's greatest generation.
And it's the attorney general who, to mix metaphors, stands at the pinnacle and will make the decision whether we're at a pendulum or a plateau.
Thank you very much, Mr. Chairman. I welcome your questions.
CARDIN: Well, thank you for your testimony, and thank you for your service to our country.
The next witness is Professor Dawn Johnsen.
Professor Johnsen attended Yale College, where she received her B.A. in economics and political science. She graduated summa cum laude and was a member of the Phi Beta Kappa.
She then attended Yale Law School where she received her J.D. After law school, Professor Johnsen clerked for the Honorable Richard Cudahy in the U.S. Court of Appeals for the Seventh Circuit.
A year later, she joined the American Civil Liberties Union as a staff counsel fellow. After leaving the ACLU, she spent five years as legal director for NARAL.
In 1993, she joined the Department of Justice as deputy assistant attorney general and then became acting assistant attorney general for the Office of Legal Counsel. The assistant attorney general for the Office of Legal Counsel is the fifth ranking Department of Justice official, who serves as legal adviser to the president and the executive branch, supervising about 24 lawyers and advising the counsel to the president, the attorney general and the generals counsel of the various executive departments and agencies.
In 1998, Professor Johnsen became a professor of law at Indiana University School of Law, where she teaches constitutional law, separation of powers and First Amendment.
Professor Johnsen has testified before Congress, is a frequent speaker at national conferences, and has appeared on many national television and radio news shows.
It's a pleasure to have you here, Professor.
DAWN JOHNSEN, PROFESSOR: Thank you.
I'm very glad for this opportunity to talk with you today about the Department of Justice. I had the great pleasure of serving there at the Office of Legal Counsel, OLC, for short, for five years, including as the acting assistant attorney general heading that office. And I cared deeply about its integrity.
OLC's core function is to provide the president and other executive branch officials with the legal advice they need to act lawfully.
The work of OLC under the current administration has been dangerously compromised.
Excessive secrecy makes it impossible to fully assess the problem, but we do know that on at least some counterterrorism matters, OLC has abandoned its traditional role and instead has facilitated policies that do not comply with the law.
Former head of OLC Jack Goldsmith, who served in 2003 to 2004, wrote recently that some Bush-era OLC opinions, and I quote, were deeply flawed, sloppily reasoned, overbroad and incautious in asserting extraordinary constitutional authorities on behalf of the president.
Goldsmith correctly notes that even a deeply flawed OLC opinion is akin to a get out of jail free card, because it is virtually impossible to prosecute someone who relied on an OLC opinion.
Congress should respond to these failures by demanding public accountability, specifically the release of opinions, and a restoration of OLC's tradition of independent legal analysis.
I'd like to suggest as framework for that a statement of 10 principles to guide the Office of Legal Counsel.
A group of 19 former OLC lawyers coauthored this statement in response to the infamous 2002 OLC torture memo, in hopes of helping to prevent any future recurrence of that debacle.
The principles state that they are drawn from the longstanding practices of the attorney general and the Office of Legal Counsel, across time and administrations.
I've submitted the entire statement of principles with my written testimony, and now would like to highlight just two of those principles.
The first and most fundamental principle reads, When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies.
In short, OLC has to be prepared to tell the president no.
I want to stress that saying no does not mean disabling the government from meeting national security threats. I deeply appreciate the Department of Justice's critical role in protecting our nation from terrorism.
It does mean, though, helping the president to meet those threats and to proceed in a lawful manner.
In the Bush administration's most controversial policies -- think about warrantless domestic surveillance, the establishment of military commission, coercive interrogations to the point of torture -- the critical question in all of these matters was whether the president would act unilaterally and largely in secret, skirting applicable legal requirements, or would he comply with the constitutional process for lawmaking by submitting his recommendations for change to Congress.
The president consistently has chosen to go it alone.
The second principle I'd like to mention -- I want to state this most clearly and emphatically -- the Department of Justice must avoid secret law. And I quote from the principle: OLC should publicly disclose its written legal opinions in a timely manner absent strong reasons for delay or nondisclosure.
Of course the executive branch at times has legitimate needs, and even compelling needs, for secrecy. But public explanation is critical any time the executive branch does not fully comply with a federal statute or interprets a statute in a way that would surprise Congress.
Recent reports suggest this may be the case with the recent ban on cruel, inhuman and degrading treatment. Congress cannot effectively monitor and regulate the government unless it knows how the executive branch is interpreting and implementing the laws Congress already has enacted.
Congress needs those secret OLC opinions that interpret the Detainee Treatment Act.
It pains me to see what has happened to the Department of Justice, an institution that I great esteem, which is populated by many, many fine lawyers.
Congress and the next attorney general must confront the reality that the problem ultimately lies not with DOJ, but with the president. Numerous reports confirm that the president and the vice president and their top advisers, they have been deeply hostile to any checks on their counterterrorism policies.
The next attorney general will face great pressures, and he will need Congress' strong support to do the right thing.
He should scrutinize OLC's work, rescind flawed opinions, publicly release many of the opinions, and restore OLC's traditional role to publicly announce principles and procedures.
In conclusion, this committee should engage in aggressive oversight to ensure all of this accomplished and, beyond this, that the executive branch complies with the laws.
CARDIN: Thank you very much for your testimony.
We'll now hear from Mr. Theodore Shaw.
Mr. Shaw is the director, counsel and president of the NAACP Legal Defense and Education Fund. Mr. Shaw joined LDF in 1982. He directed LDF's education docket, and litigated school desegregation, capital punishment and other civil rights cases throughout the country.
In 1990, he left LDF to join the faculty of the University of Michigan Law School, where he taught constitutional law, civil procedure and civil rights.
In 1993, on a leave of absence from Michigan, he joined LDF as associate director, counsel.
Mr. Shaw graduated from Wesleyan University with honors and from Columbia University School of Law, where he was Charles Evans Hughes fellow.
Upon graduation, Mr. Shaw worked as a trial attorney in the Civil Rights Division of the United States Department of Justice from 1979 until 1982. He litigated civil rights cases throughout the country at the trial and appellate levels and in the United States Supreme Court.
Mr. Shaw resigned from the Justice Department in protest of the Reagan administration's civil rights policies.
The National Bar Association (inaudible) Lawyers Division recently presented Mr. Shaw with the A. Leon Higginbotham Jr. Memorial Award. He's also received the Lawrence A. Wien Prize for Social Justice from Columbia University.
He was awarded the Baldwin Medal, the highest honor given by the Wesleyan University alumni body, for extraordinary service to the university and the public interest. He serves on the Wesleyan board of trustees for 15 years, and was senior vice chair of the board when he retired from the board in June 2003.
Mr. Shaw, it's a pleasure to have you before our committee again.
SHAW: Thank you, Senator.
As you've noted, I started my legal career with the Justice Department in the Civil Rights Division about 28 years ago. And it was a great place to work. It was a dream job. It was a wonderful start for a young lawyer.
And what I was conscious of, as well as all of my colleagues, was the great tradition of the Justice Department and particularly of the Civil Rights Division.
I recently attended a reunion of alumni of the Civil Rights Division here in Washington, D.C. And one of the tragic things about that reunion -- the reunion, of course, itself, was not tragic, but it was tragic that not one person from the Civil Rights Division or the Justice Department representing this administration was present.
That said volumes about the breach that exists between those who served at the Justice Department in the Civil Rights Division under Republican and Democratic administrations alike, and the present leadership of the Justice Department and the Civil Rights Division.
And I hope -- I'm sure that that's something that will change.
There's a lot of healing that needs to be done and a lot of restoration within the Civil Rights Division and within the Justice Department.
The core mission of the Civil Rights Division at its inception was the battle against racial discrimination, particularly as it was visited upon African-Americans.
Now, of course, the mission of the Civil Rights Division is much more expansive than that. It represents the interest of all Americans, indeed all people in this country, in protecting them against discrimination.
So while the division's work has expanded, as it should have, and it does work that involves gender discrimination, discrimination on the basis of disability or people who are institutionalized, we believe that there is a manifest imbalance in the Civil Rights Division's work that has cropped up in recent years.
The division does relatively little work on behalf of African- Americans. To put it bluntly, I think most African-Americans who experience racial discrimination do not feel like the Justice Department is a place to which they can go take their problems and know that their interests will be protected. And I lament that.
While in office, in the last six and a half years, the department has brought only five cases, including allegations of racial discrimination against African-Americans under Section 706 of Title VII. At the same time, it's brought three so-called reverse discrimination cases on behalf of white plaintiffs.
Now, I want to be clear: I am not suggesting, now would I ever suggest, that white individuals cannot be discriminated against or that the Justice Department should not protect their interests.
But I think that that fact, or those facts, speak something about a policy difference that the Justice Department has adopted, as compared to prior administrations.
Similarly, it has brought only one Section II Voting Rights Act Case on behalf of African-Americans. That case was filed last year.
I draw your attention, or the committee's attention, Senator, to the fact that the Justice Department has also, through its Civil Rights Division, abdicated its responsibilities when it comes to voting rights.
There are several now well-publicized instances in which the department has ignored the advice of career attorneys. And I understand that lawyers who are career attorneys don't run the division or the department. But those decisions have been reasoned not on the basis of law, apparently, but on politics.
The Supreme Court even now has before it a case involving voter ID coming out of Georgia, in which the Justice Department pre-cleared a voter ID requirement. That requirement was then struck down by no less than -- no fewer than five courts: three federal court decisions and two state court decisions.
Let me close by pointing out that perhaps nothing is more telling than decisions as a matter of policy by the department, by the division, not to enforce civil rights laws using the most aggressive interpretation of the laws that the courts and Congress have made available. And my testimony gives several examples of this.
It is my hope that under Judge Mukasey at the Justice Department as attorney general, should he be confirmed, that the substance and the integrity of the Justice Department, and particularly of the Civil Rights Division, will be restored.
The Justice Department is the crown jewel in the executive branch when it comes to the law.
SHAW: And I hope that that status is recaptured.
I must say in closing, also, after sitting here and listening to the very eloquent testimony of Admiral Hutson, that I recall after 9/11 I was interviewed and I was asked about the aftermath of 9/11. And what I said then was that my fear was that even if we could win the war on terror, however that's defined, that we might lose our soul as a nation.
And I think that is exactly the threat that we are facing now, as Admiral Hutson has very eloquently pointed out.
I want to join him. I hope that under new leadership the department again restores itself and our nation to where we should be when it comes to the rule of law.
On behalf of the Legal Defense Fund, it is my earnest hope that, if confirmed, Judge Mukasey will restore the department to its long and proud tradition as an institution that serves the American people well.
CARDIN: Thank you, Mr. Shaw.
I'm going to recognize Senator Specter.
SPECTER: Thank you, Mr. Chairman.
I just wanted to stop by to thank you for coming in and to say that there are so few people in attendance because people have so many responsibilities in so many directions.
I've just left the floor. We had a series of votes. I'm ranking on the Subcommittee of Appropriations on Labor, Health, Human Services and Education, and I have to stay on the floor.
But I've had summaries of all of your testimony. And we really do appreciate what you have to say.
I heard what Mr. Shaw said about enforcement of the Civil Rights Act. And I can tell you that that's a major concern of the committee in the Senate and the House; that a great deal more needs to be done.
And reference was made to what Admiral Hutson has done on interrogation tactics. And there's a lot of concern here on habeas corpus and the whole range of executive power which we've taken a look at.
And I note there's a strong consensus in favor of Judge Mukasey. And we're very hopeful that he will make vast improvements.
So I think this committee was very instrumental in having the change made in the Department of Justice, from the oversight hearings which we held.
If you had to summarize the difference between former Attorney General Gonzales and Judge Mukasey, it would be on habeas corpus. Attorney General Gonzales inexplicably said habeas corpus was not a constitutional right. And Judge Mukasey said you can't have a limitation on habeas corpus if it's not a right. A perfectly obvious point, and I think that's illustrative of the take-off.
So we thank you for coming in and what you have contributed. And, again, my regrets, because I have to go back to the floor.
CARDIN: Thank you, Senator Specter. Appreciate your comments.
We'll now hear from Mary Jo White.
Mary Jo White was the first woman to be a U.S. attorney from the Southern District of New York, serving from 1993 to 2002.
When Ms. White left her post as a U.S. attorney from the southern division (sic) of New York in January 2002, she was acclaimed for her nearly nine years as a leader of what is widely recognized as the premier U.S. attorney's office in the nation.
She has supervised over 200 assistant U.S. attorneys in prosecuting some of the most important national and international matters, including complex white-collar and international terrorism cases.
She is noted for having overseen prosecution of John Gotti and the terrorists responsible for the first World Trade Center bombings in 1993.
She's a fellow of the American College of Trial Lawyers and the International College of Trial Lawyers, a recipient of numerous awards, and is regularly ranked as a leading lawyer by directories that evaluate law firms.
In addition, Ms. White served as director of NASDAQ Stock Exchange and its executive audit and policy committees between 2002 and February 2006. She's also a member of the Council on Foreign Affairs.
Ms. White received her bachelor of arts degree from the College of William and Mary and later attended Columbia University School of Law, where she received the J.D.
Currently, Ms. White is the chair of Debevoise Plimpton's 225- lawyer litigation department.
Ms. White, it's a pleasure to have you before us.
MARY JO WHITE, PARTNER, DEBEVOISE & PLIMPTON LLP: Thank you very much, Senator Cardin.
It's my privilege to speak on behalf of the nomination of Judge Michael B. Mukasey. He is a man of great intellect and integrity, with a unswerving commitment to the rule of law.
He is independent, fair-minded, and has a wealth of relevant experience, from his years of service on the bench, in the private sector, and as an assistant United States attorney in the Southern District of New York.
There could not be, in my view, a stronger or better nominee to head the Department of Justice, particularly at this time, when the department is in need of a strong and respected leader, as our country faces one of the greatest challenges in its history: to secure the nation against the threat from Al Qaida and related terrorist networks, and to do so consistently with the rule of law and our principles as a free and democratic society.
I have no doubt that Judge Mukasey, if confirmed as attorney general, will meet the challenge on behalf of the Department of Justice effectively, intelligently, and with sensitivity to all of the complex issues that are inherent to this unique challenge, to which there are no easy or obvious solutions.
I am equally confident that Judge Mukasey will be a superb leader of the department in carrying out its many other important responsibilities and priorities that are vital to the rights, safety and well-being of the American people.
The way I know Judge Mukasey is that when I served as U.S. attorney in the Southern District of New York from 1993 to 2002, I had the privilege of observing him directly, and through the eyes of my 200 assistant United States attorneys, and saw him supervise or preside over numerous cases with skill, with dignity, and with an absolute fairness and evenhandedness with respect to the parties before him.
As a judge, he embodied all of those qualities of intelligence, temperament, preparedness and fairness that bring high credit and honor to our American system of justice.
In each encounter I have had with Judge Mukasey, I have come away with deep admiration for him as a person, as a lawyer and as a public service.
I, thus, join with the many others who strongly support his nomination, including representatives of the defense bar, as well as prosecutors.
As has been mentioned by Senator Kyl, I believe, this morning, I did also observe Judge Mukasey preside over one of the most complex and difficult trials I think in our history, and that was the terrorism trial involving the head of the Al Gamaat terrorist organization, Sheik Omar Abdul Rahman, and nine of his codefendants, who were charged with a horrific plot to blow up in a single day the tunnels connecting New York and New Jersey, the George Washington Bridge, the United Nations and the FBI's headquarters in Manhattan.
In this day of terror trial, Judge Mukasey was called upon to deal with and decide novel and some of the most difficult issues ever faced by any court. He did so, and he did so while keeping his eye on the primary ball in any trial, and that is to ensure a fair proceeding for all parties.
What Judge Mukasey learned substantively and procedurally from this trial I believe will serve him very well as attorney general, as he shapes and guides the Department of Justice's role and policies in addressing the grave threat posed by radical Islamic terrorism.
Another daunting challenge that any attorney general has to do and face is to oversee and manage the over 100,000 employees of the Department of Justice and its many programs and component parts.
While Judge Mukasey, of course, has not been previously called upon to manage an organization of the kind and size of the Department of Justice -- very few have -- I believe he brings to that task both the right qualities and relevant experience.
He is, first and foremost, a leader with credibility who leads by example and motivates by examples professionals to do the best work of which they are capable.
He is organized, efficient, works extremely hard, and has the ability and judgment to prioritize and delegate wisely.
As chief judge of the United States District Court in New York for six years, Judge Mukasey was called upon to manage what is our oldest and largest federal court, with over 40 active and senior judges, 15 United States magistrate judges, 11 bankruptcy judges.
The Southern District of New York has one of the busiest and most complex dockets in the country: typically over 12,000 new filings, civil and criminal, each year.
The chief judge of the Southern District of New York is ultimately responsible for, among other things, the budget, security issues, personnel, infrastructure, subcommittees on various issues affecting the court, litigants and juries, interagency communications and docket administration.
In addition to having responsibility for these issues, Judge Mukasey, as chief judge, guided the federal court in the Southern District of New York from a paper filing system to the electronic case filing system, and put in place the first emergency preparedness program for a federal court.
As it happened, Judge Mukasey was, fortunately, the chief judge of the Southern District of New York on September 11th. His leadership during this time of extreme crisis has been accurately described by many as heroic.
The Southern District of New York's courthouses in Manhattan are located just a few blocks from where the World Trade Center stood. All of us working in the vicinity of the courthouse complex on September 11th personally witnessed the horror of that day and were required to respond to the physical and emotional issues of our staffs and then work to try to restore normal functioning in the aftermath of the most abnormal and jolting experience any of us had ever encountered.
Judge Mukasey directed that the two Manhattan federal courthouses be closed immediately, but kept the court running from the White Plains courthouse 30 miles north of the city.
He then reopened the Manhattan federal courthouses on September 18th, 2001, fully for business, despite badly disrupted phone systems, computer systems, not to mention the emotional stress of the court's employees.
But as the district executive of the Southern District, who works for the chief judge, observed, Almost everyone who worked at the courthouse was back at their desk. It was very important to come back downtown and to come back to work. Everyone wanted to be together to do our best to show that life would go on in New York.
Well, for the Southern District of New York, Judge Mukasey and the district executive staff he managed made that possible.
In closing, I believe that, however he is measured, Judge Mukasey will be a superb attorney general. He will hit the ground running at the Department of Justice and deal effectively with its full range of priorities and problems. He will lead and inspire the career lawyers at the department and in the field, as well as the United States attorneys.
He will remain the person he has always been, a dedicated, hardworking public servant with the ability and humility to do an outstanding job of which I'm sure we will all be proud.
Thank you very much.
CARDIN: Thank you very much for your testimony here today.
We will now hear from Judge John Martin. Judge Martin, a partner in Martin Obermaier in New York City, was a United States district judge in the Southern District of New York from 1990 to 2003, and worked very closely with Judge Michael Mukasey in that capacity.
Prior to his judgeship, Judge Martin served as the United States attorney for the Southern Division of New York, from 1980 to 1983, worked as an assistant to the solicitor general of the United States in Washington, D.C., and worked in private practice.
A native New Yorker, Judge Martin graduated from Manhattan College in Columbia Law School and clerked for the Honorable Leonard T. Moore in the United States Court of Appeals for the Second Circuit.
Judge Martin has received awards for his outstanding service, including the Emory Buckner Award from the Federal Bar Council and the Judge Edward Weinfeld Award from the New York County Lawyers Association.
Judge, it's a pleasure to have you before us today.
JOHN MARTIN, PARTNER, MARTIN & OBERMAIER: Thank you very much, Senator Cardin.
I'm honored to be here and very pleased to have the opportunity to express, publicly, my high regard and affection for the nominee for attorney general, the Honorable Michael B. Mukasey.
I'm known Mike Mukasey for over 30 years, but I got to know him best when we served together on the Southern District of New York.
Michael Mukasey is one of the most decent human beings I know. And I think he possesses the qualities of intellect and humanity that we should want in a person to serve as attorney general of the United States.
We worked together -- I was a chair of the Clerks Committee when he was chief judge. We worked closely together during that time. And I saw first hand his compassion and his leadership.
During that period, our clerk of court died after a long battle with cancer. No one could have been more caring than Judge Mukasey was of the concern of our clerk. No one could have been more compassionate in that situation.
In addition, as Mary Jo has pointed out in some detail, he was an able leader, someone who sought advice and who inspired those around him to do their best.
He also had the unenviable task of trying to organize and lead 40 United States district judges, each of whom was appointed for life. Judge Mukasey handled that task with grace, and when he stepped down as chief judge, he left with the respect and admiration of all his colleagues.
To some extent, no individual is qualified to be attorney general. But the same could be said of a United States district judge, because in both cases, you're face with areas of the law with which you had no experience in private practice.
The breadth of the United States law is staggering. And the attorney general and the district judge has to deal with that.
But you learn from that how to listen to experts, to weigh what they have to say and to make judgments as to what is the right thing in a situation.
In addition, and most important for someone who is to become the attorney general, you learn that the law is above politics and that your personal political views have no place in the administration of justice.
Michael Mukasey was a superb United States district judge.
And I have no doubt that, if confirmed, he will be a superb attorney general.
He possesses both the intellectual ability and the openness of mind that will serve him well in formulating the policies to be carried out by the attorneys in the Department of Justice.
While I never had the pleasure of appearing before Judge Mukasey, I have had the pleasure of reading his opinions. He was a thoughtful and intelligence jurist.
I also have one experience with him that I think demonstrates that he possesses one of the most important qualities for someone who would be the attorney general, and that is the willingness to rethink a position.
Several years ago, I decided a case, and I forget what the issue was, but there was only one opinion on point, and it was by Judge Mukasey. And it was a rare case in which I disagreed with him, and I wrote an opinion and said, I have great respect for Judge Mukasey, but I disagree with him here.
A year or two later, he sent me a copy of an opinion he had just written in a similar case, in which he referred to his prior opinion and my opinion and said, I've changed my mind. I think that the other is the right law.
I don't know many judges who possess both the unique quality of self-confidence and humility that would allow them to admit publicly that they were changing a position.
But that's what I think the quality that you have to have, if you're going to lead something like the Department of Justice, and be faced on a daily basis with complex and difficult questions to decide.
As you might expect, Judge Mukasey's nomination has been the subject of considerable comment in the New York legal community. I can tell you that the unanimous views of everybody with whom I have spoken, friends of Judge Mukasey, former colleagues and I think particularly important lawyers who appeared before him, is that Michael Mukasey will provide the type of leadership necessary to ensure that the American people have confidence that justice is being administered fairly and with integrity.
Thank you very much.
CARDIN: Thank you all very much. I very much appreciate your testimony, and I think it's extremely helpful to our committee.
Governor Thornburgh, I want to just ask you, sort of, a loaded question.
If Attorney General Mukasey calls you the day after he's sworn into office and asks advice what he should do...
... as some of his first measures in order to restore the type of confidence, not only within the department, which is in trouble today, but public confidence in the Department of Justice, what type of advice are you going to give them?
THORNBURGH: I don't think I could do much better than the steps that he outlined in his testimony, which really involved taking charge of the department.
And I think that that's the important thing that has to be done, to exhibit those qualities of leadership that I think he's fully capable of, ensure that the present vacancies are filled expeditiously and with people of equal caliber to his own, to visit with the leadership of the department personally, not just the leadership at the top but in the various sections and units within the department.
It's a massive operation. And I frankly enjoyed, when I was in office, the institution of, kind of, brown-bag lunches with the rank- and-file staff lawyers to, kind of, get their view of what was going on.
So that I think his task will be really to grab the reins of the department, to make clear that he's in charge, and to articulate as often as possible to the public, through the media and through appearances, his core values, expressed so eloquently during these hearings, that indicate his commitment to the rule of law, his commitment to fairness and justice. And in every one of the operations that the department carries out, make clear that he means business when it comes to reinvigorating the department's very important mission.
CARDIN: Would you be advising him that -- there's so many vacancies in the top positions in the attorney general's Department of Justice. Would high on your list be to try to influence appointments quickly, at these top positions, consistent with his priorities within the Department of Justice?
THORNBURGH: I would think that has to be priority.
I deal from time to time with the Department of Justice. And lately, it's discouraging to find that there's nobody home when it comes to key decisions being made. That's a frustration of a practitioner, but I'm sure it's also a frustration within the department.
And I think of his highest priorities, which I'm sure he recognizes and will carry out, is to seek out advice and recommendations from his long and rich career of persons who can fill those key positions -- obviously, that will be done in tandem with the White House -- and to see that those positions are filled and that the departments's in full running order just as quickly as possible.
CARDIN: Admiral Hutson, I must confess that I concur completely in your testimony. I found it well articulated in some of the things that I think we try to say here in the Senate, but not quite as effectively as your testimony. And I thank you for that, because I think it added greatly to the record here.
I also believe it won't surprise anyone here to learn that Judge Mukasey did an excellent job before our committee, as far as the frankness of his answers, as far as assuring us that there's independence.
But there was one area that I think many of us are concerned about, and that is whether there will be an effective voice within the attorney general to speak out against the United States condoning any forms of torture.
I say that because Mr. Judge Mukasey was very clear that torture is not allowed. It's unconstitutional and against our laws. He made it very clear, also, that he would pursue holding accountable anyone who violates those statutes or Constitution, even if that person was operating under the direction of someone in our military or in the White House.
But then, he was less than clear as to circumstances in which conduct would be -- not fall within the prohibited areas, including some that are pretty obviously commonly considered to be torture.
There's also the international perception that the United States is playing on definitions here, rather than leading and saying clearly that we won't tolerate any forms of conduct that traditionally has fallen within torture.
CARDIN: So I'd like to get your assessment as to how you felt -- I don't know if you listened to the testimony or not...
HUTSON: Yes, I did, Senator.
CARDIN: I would welcome your thoughts on that.
HUTSON: Thank you, Senator.
The United States as a nation and the attorney general as an individual has to be absolutely unequivocal. We can't dance around definitions. We can't dance around, you know, what is torture and what's cruel and what's inhumane and what's degrading as we have done.
In the past, we never had to worry about that, because we were never close to the line. We were always a long ways away from the line.
Now, we want to be right up next to the line, so suddenly what those definitions are become important.
I think that is a terrible mistake for this country, because that same cleverness is going to come back to bite our troops, because it's our troops who are forward deployed.
When Eisenhower and Marshall and Senator Vincent and others looked at the Geneva Conventions, they were not looking at them as a limitation on our behavior. They were looking at them as a limitation on the enemy's behavior. They were there to protect U.S. troops. That's what we were thinking.
Now, suddenly, we're looking at ways to dance around it, so that we can engage in that kind of activity, and as then-Legal Counsel Gonzales said, so that we can avoid the War Crimes Act.
My goodness. How did we get to that point?
You know, torture is the method of choice of the lazy, the stupid and the pseudo-tough. And that should not be the United States. No matter how you define torture. It's unconstitutional, it violates statutes, it violates the UCMJ, it violates Common Article 3, it violates what your mother taught you and it violates what you learned in kindergarten. And we ought not be even close to it.
CARDIN: Well, I thank you for that answer.
One of the hats I wear in the United States Senate is the Senate chairman of the Helsinki Commission, which deals with the human rights dimensions. And historically the United States has used that forum to promote action against inhumane treatment and torture by so many countries in our regions.
I find that I'm spending most of my time trying to answer questions about conduct in our own country, whether it's Guantanamo Bay and the detaining of individuals there, or whether it's the signing statements of the president on torture, or whether it is dealing with the way that we treated prisoners in Afghanistan and Iraq.
So I agree with you. I think we've lost our standing internationally on this issue, and now when we equivocate on definition it is really subject to scrutiny and concern by the international community.
HUTSON: May I make one more point, sir?
Other than, perhaps the rack and thumbscrews, water-boarding is the most iconic example of torture in history. It was devised, I believe, in the Spanish Inquisition. It has been repudiated for centuries.
It's a little disconcerting to hear now that we're not quite sure where water-boarding fits in the scheme of things.
HUTSON: I think we have to be very sure where it fits in the scheme of things.
CARDIN: Well, I am hopeful that once Judge Mukasey becomes more familiar -- he didn't seem to be familiar with that -- I hope during the question and answers that will still happen in part of the confirmation process that we can get a clear view from the nominee that that is clearly prohibited practice under not only our Constitution and our laws, but international standards of inhumane treatment.
So, I agree with you and I hope that we'll get that clarified.
Professor Johnsen, I want to go back to a statement you made about the release of the opinions that had been made from the Office of Legal Council.
Senator Specter I thought was pretty articulate and persuasive that if the United States Senate, if the Congress is to do its oversight, that we have to get access to the fundamental documents controlling activities within the executive branch. And if there's sensitivity to some of these documents, then we'll take it in a closed session. But that we need to be have access to what is guiding executive actions.
You were in that office. Are we being unreasonable in our request? Will this put an unreasonable restriction on the prerogatives of the president or the executive branch?
JOHNSEN: Absolutely not.
The issue, of course, of interrogation and torture I think is the perfect one which to explore this. The Office of Legal Counsel, frankly, destroyed our nation's reputation on the issue of torture with that infamous 2002 opinion.
Congress responded very appropriately, in my view, with the Detainee Treatment Act: made clear no torture, no cruel, inhuman, degrading treatment anywhere in the world by the United States.
You know, when the president signed that into law, he had a reservation in the signing statement that caused Senator McCain to call him on it. Now we hear that, I think astonishingly, the Office of Legal Council, if reports are correct, has issued two more secret opinions in interpreting that statute.
How can Congress do its job? You know, how can our constitutional democracy work if the president is interpreting statutes in ways that are flatly inconsistent with what Congress intended and with the words of the statute?
JOHNSEN: How can Congress oversee the executive branch or legislate, if it cannot get a straight answer from the president, from the Department of Justice, when asked, How are you interpreting cruel, inhuman, degrading? How are you interpreting torture? Let us see those legal opinions ?
And if they do contain material, as you said, that would, in some way, jeopardize national security, that can be submitted in confidence (ph) to the Senate.
I actually am not happy with that option, I have to say. I think, on this issue, the public needs to know how the president is interpreting these laws regulating coercive interrogations.
And so I would say, if there are any portions that have to be protected, kept confidential, then a redacted version or a specially prepared version has to be provided to the American public, so that we know, and the world knows, what our policy is on coercive interrogation.
CARDIN: Well, I agree with you on that. I think it should be. I'm just trying to get -- at least be able to evaluate the documents. And if we have to establish procedures, I don't necessarily disagree with Senator Specter. We have to make accommodations in order to get this matter moving forward. I think it's worth making accommodations so that we don't run into a constitutional challenge that could take too long in order to resolve.
But I agree with you. I see no reason why this information cannot be made available to the public, if necessary in a redacted form. It seems to be that should be able to be accomplished.
There was one other issue that was brought up that you may have a view on, or maybe other members of the panel, and that's an issue about the contempt citation that Judge Mukasey talked about.
It seems to me that, if there is a challenge that we need certain documents and the president believes that that is a part of his executive privilege, there needs to be a way that that can reach the courts.
The only way that I know is for Congress -- and it's a very serious matter for us to suggest a contempt citation and to move forward with it and get it completed.
But at that point, it seems to me there should be little discretion within the Department of Justice in convening the grand jury and issuing the necessary indictments.
Am I wrong on that? I mean, Judge Mukasey seemed to be very indefinite about whether -- he would make an independent judgment as to whether the individual acted reasonably.
Well, if you're in the executive branch, following what the president said, that's acting pretty reasonably to me, even though the president may not be acting reasonably.
You might remember that Judge Mukasey actually cited an OLC opinion from the time I was there, as well as earlier administrations, on this point.
And so, it is a very difficult matter. I think that there should be a way to get it before a court.
Interestingly, Judge Mukasey said if the Department of Justice has issued an opinion to the president saying it's appropriate to assert executive privilege, then there's a very serious problem with the Department of Justice turning around and prosecuting somebody.
And I agree with him on that.
But I think the interesting thing about that is the Department of Justice should not have advised the president in the first place to assert executive privilege. I think that's where the problem is.
The president has a constitutional obligation to accommodate Congress' needs for information. And in this particular issue, the president has not done so. And I don't think the president has received accurate legal advice from the Department of Justice.
But that's the point at which I think the problem occurs.
I do agree with Judge Mukasey that it is difficult, and I think a due process problem, to turn around and prosecute somebody for doing what the Department of Justice said that person should do in the first place.
The real problem I think is in the erroneous assertion of executive privilege in the first place and not accommodating Congress' compelling need for information on this issue.
CARDIN: Well, again, I think that's the right analysis.
And Judge Mukasey did say that he would weigh in pretty heavily as to whether executive privilege should be asserted or not.
And I agree with you. I don't believe that was done by the attorney general in the assertions that were made in regard to the U.S. attorney firings and other issues in which we have subpoenaed information.
So hopefully the judge, as attorney general, will be in the beginning stages in giving advice to the president, which I hope the president will follow, which leads to the question as to whether Judge Mukasey has the independence and strength to stand up to a pretty strong president -- a pretty strong-willed president.
There's a lot of things you can say about our president, but he is strong-willed.
So let me ask Mrs. White, if I could, and Judge Martin, you know him: How do you think he's going to fare standing up to a president who wants to do certain things that perhaps the judge thinks is inappropriate?
WHITE: If the circumstance presents itself, my money is on Judge Mukasey. He's one of the most independent, straightforward, strong individuals I know -- most principled.
So, if it comes to that, I mean -- you know, plainly, he will, you know, also be, you know, clear in his advice as to the right path. But if it comes to that, I have no doubt whatsoever he'll stand up.
MARTIN: I think serving as United States district judge, you're used to getting -- understanding that people have to obey certain laws and you've got the power to enforce them. And I don't think that Mike Mukasey is going to have any problem asserting his own views as to what's right or wrong.
CARDIN: Well, I think restoring the independence of the Department of Justice is the first order of business. With the political interference, which has been acknowledged, and under current investigation, that's going to be the first order of business.
The second is being able to give independent advice. And that's going to be another challenge.
Third is establishing the type of priorities in the office.
Mr. Shaw, I couldn't agree with you more about the disappointment of the Civil Rights Division on its 50th anniversary of its creation. The number of cases that have been brought, in regards to the voting rights, to remove obstacles to participation, the disparate cases that have been brought, the few numbers in housing and employment have all been, I think, just shocking, in a way, that we've had a tradition.
And, of course, the type of cases that the Civil Rights Division has entered had been on the wrong side, in my view, particularly when you look at the historic role of the Civil Rights Division in promoting rights for all individuals.
So, I hope that you can, perhaps, give us some guidelines as to what we should be looking for from the new attorney general, as it relates to the type of cases that you would like to see priority given to.
SHAW: Senator, let me first correct something I may have said.
I talked about the Georgia voter ID case. I might have said that that was before the Supreme Court. If I did, what I meant to say was that issue was up before the Supreme Court, but it's actually in a case out of Indiana.
With respect to what the new attorney general could do, there are a number of things.
I think there needs to be, first, at least within the Civil Rights Division, but throughout the department, a restoration of hiring in an apolitical way of career attorneys.
SHAW: I'm not talking about the political appointees, obviously.
But I think that's vitally important to restore the Civil Rights Division and the department's staff generally -- the legal staff -- to what they once were.
I also think that it would be a good thing for the attorney general and the assistant attorney general, whoever that might be, of the Civil Rights Division to have some dialogue with some of the people who ran the Civil Rights Division under prior administrations, under both parties, as well as some of the career attorneys who have left the department, to get a sense of perhaps how the department could operate to restore its credibility and integrity.
With respect to substantive issues, we find ourselves in disagreement with the department and in a position with the department as adversaries as often, if not more often, than we are allies.
I don't expect that we're going to agree on every case. But to take the Seattle and Louisville cases, for example, the issue of voluntary school integration decided in June by the Supreme Court, there the Justice Department, for the first time since the 1950s, since Brown, effectively came down against school desegregation or integration.
That is a reversal of historic proportions with respect to the Justice Department's role.
And there are other instances in which we've been in adverse positions, where I think we ought not be.
Of course we have our point of view. But the Justice Department really has gone astray.
As I said, I think that the department needs to revisit the cases on behalf of African-Americans and Latinos that are out there that they're not bringing right now -- that they're consciously not bringing.
It's not that those cases aren't there, because we're asked to represent people in those cases all the time. And we don't have the resources that the federal government has.
SHAW: We can't take on most of those cases. The EEOC still is overloaded with complaints.
But the cases are there. The question is what the Justice Department's role is going to be.
So, that can be turned around, I think, fairly quickly if the lawyers are unleashed to do the investigations that they've wanted to do, that they have done.
And if their suggestions or advice or overridden -- as they will be sometimes, I suppose -- it ought to be done on the basis of a legal analysis that has integrity, and not on something that either gives the perception or the reality of a political decision.
CARDIN: And I think, quite frankly, Judge Mukasey was comforting in his comments in that regard.
And clearly, the failure to follow the advice of career attorneys, the reassignment of the individual who was in charge of the election issues in the Civil Rights Division, all that was shown political interference, not just not following the advice of career attorneys. It had the imprint of a political agenda, more so than a change in a philosophical approach.
And Judge Mukasey, I think, was pretty clear that he won't tolerate that type of activity.
And we need to make sure, in fact, that gets translated to those who are at the Department of Justice in critical positions.
And we welcome your review of what happens in the Department of Justice and we thank you for your role in that regard.
Mr. Canterbury, I want to ask you about another aspect of the Department of Justice which is handling the criminal agenda.
Several of our senators ask questions about violent crimes. You had seen Judge Mukasey as a prosecutor and as a judge, and I would like to get your assessment as to the comfort levels that he will be balanced and fair in prosecuting criminal activities, which is a significant part of the agenda of the Department of Justice that he's supervising now.
CANTERBURY: We represent 22,000 members in New York state. And in our conversation with federal, state and local officers in that judicial district, our review of cases that the judge has reviewed, we're very pleased with that.
We also -- obviously, the attorney general also has oversight of the FBI and ATF and other law enforcement organizations that we deal with on a daily basis, and we feel the experience that he has will help to foster state and local cooperation.
And there have been some great strides in the last eight or 10 years in local and state cooperation, but it's pretty obvious to us from the judge's no-nonsense approach that that will continue. And we look forward to that.
CARDIN: I thank you for that.
I was just checking with our staff because they were supposed to start a vote at 5 o'clock which they didn't start, which I'm thankful for.
Let me -- I want to, last, ask one more question, which is an open-ended question for -- to give any of you an opportunity to comment, if you like, and that is trying to summarize the concerns raised during the confirmation hearings.
I think I would put them, probably, in three categories. There were other issues raised; I'm not oversimplifying it.
But it's not the ability of Judge Mukasey to be an independent attorney general, obviously, being in the Bush Cabinet, but being an independent voice on behalf of the American people.
Secondly, to not tolerate at all any political activities that would relate to the hiring or promotion or firing of career attorneys, or involved in influencing decisions on criminal investigations or in any way.
And the third would be the priorities of the department, whether this department will carry out its historic role to protect the rule of law and to protect the civil liberties of the people in this country and to move ahead on the civil rights agenda and deal with those types of issues.
So this is somewhat of an open-ended question that, if there's anything more you would like to add to the record in regard to those three issues, we would -- I would welcome an opportunity to give you that chance now.
MARTIN: Let me start, just, with the question...
CARDIN: Judge Martin?
MARTIN: ... on the whole political nature.
Judge Mukasey hasn't come out of the political system. He was selected by Senator D'Amato's Judicial Selection Committee, which was set up to be independent and to pick people on their merits.
So he doesn't come here, I think -- and I think he was nominated for this position because of his stature in the legal community, not because of his Republican credentials.
So I don't think he comes to this as a political figure. He comes to this as a man of independence, a man of stature, a man of great intellect. And I think those qualities are what he will apply as the attorney general.
He is not a politician. And I don't mean to use that as a bad phrase. But he doesn't come out of that background. He comes out of the rule of law. That's what he did as a judge. That's what I think he will do as attorney general.
WHITE: Senator, he also -- if I may just add to that quickly, he also comes out of the tradition of the Southern District of New York U.S. attorney's office, where independence and being apolitical are -- you're imbued with that from day one.
The district and the office is known not so fondly in main Justice as the Sovereign District of New York.
But mostly, I think that's very good. And I think it's very good, in terms of what it says about how he will be as attorney general.
THORNBURGH: May I offer just three observations that were reassuring to me in my reading of the record of these hearings?
One, on the issue of independence, of course, an attorney general is not independent in the sense of a justice minister in a European system might be. But the other side of the coin in independence is a willingness to stick by one's beliefs and principles and, if necessary, resign when those conflicts over principle become so intense that he can't continue.
And I think he's clearly indicated that he recognizes that.
Secondly, with regard to political activities, the most reassuring thing I heard was in his introductory statement, where he indicated that the targeting and timing -- and the timing is important sometimes -- of criminal prosecutions would be made without any consideration of the political implications involved.
And this applies largely in corruption cases or in high-profile cases.
Thirdly, on priorities, obviously, the priorities of the Department of Justice are set by the president. But I think in Judge Mukasey you clearly have someone who is willing to speak his mind and be an advocate for priorities that he thinks are proper and correct for the administration, and his voice will be heard.
THORNBURGH: So on each of the matters that you raised, I'm reassured by his testimony, and would expect that he would satisfy you as to his ability to meet those concerns.
CARDIN: Thank you.
HUTSON: Senator, if I could take a small turn on one of your very nice lists of priorities, and that is independence, I think it's not only the independence of the attorney general, but that the attorney general as the chief law enforcement officer sets the tone for independent legal advice down the chain of command, if you will. And all those government attorneys need to be able to give independent advice.
We have seen examples of where the advice of the attorneys within the Department of Defense, the judge advocates general, was ignored, not solicited, not respected. And we got ourselves in a lot of trouble.
And it wasn't until the United States Senate called hearings at the Senate Armed Services Committee, called the JAGs, asked for their personal opinions about whether -- what constituted torture and whether the Geneva Conventions applied and so forth that the American public really heard their independent views on that.
And I think that it's very important for -- particularly in light of the recent past, it's very important for Judge Mukasey to ensure that everybody understands that the opinions of the subordinate lawyers -- it doesn't always have to be followed, but it should be heard and respected.
CARDIN: Thank you.
JOHNSEN: I'd like to second everything Admiral Hutson just said. It's very in line with what I'd like to say in my closing comment.
That is, an independent attorney general is necessary, but not sufficient.
We do need, as I mentioned earlier, aggressive oversight by this committee. And just this month, you had Jack Goldsmith, former OLC head, from the Bush administration saying the same thing: that if there had been more oversight, the Bush administration would have made fewer mistakes. And it was only when there was oversight, that there actually was deliberation and debate within the administration.
And so, I'm very encouraged by what I hear from others on this panel and some of what I've heard today about Judge Mukasey's independence. But that will not be enough unless there's the pressure from this Congress on the administration, and, again, an insistence on greater openness, so that we know what the executive branch is doing.
CARDIN: I thank you for that comment.
I am proud of the leadership of Senator Leahy and Senator Specter in this committee, which I believe has been a model of the right role for the legislative branch, putting aside partisan differences to make sure that the oversight function in fact was effective.
And, as we have found out, there were very serious issues that needed the public attention and I think led to where we are today.
So I think you're exactly right. The framers had it right with the separation of the branches, and let's make sure we carry out our responsibilities here in the United States Congress.
SHAW: Senator, I was sitting here thinking about my time in the department many years ago. And I think that every lawyer within the Department of Justice knows that the attorney general is a member of the Cabinet and in a sense that's a political position in some ways. But there's political and there's political.
I think, if I remember correctly, what we wanted was to know that the line would be drawn in the right place where it had to be drawn; and that our superiors would listen to our suggestions and our analysis, even though they made the call, but they wouldn't make it purely on political grounds; and also, that the attorney general and the assistant attorney general, when need be, would be willing to go to bat for the line attorneys and for, effectively, the rule of law within a department.
I think that's all one can want and ask for.
I do know, because many of us stay in contact with or work with the attorneys -- the line attorneys in the department, that the esprit de corps is as low as it has been in any time that I can remember. It's demoralized. And I think one of the most important challenges that the next attorney general will face is to restore the sense of confidence in the part of the career attorneys that they're part of something that has integrity.
That's the sense in which I think the attorneys expect the attorney general to be apolitical and the political appointees to be apolitical; that they, above all else, make their decisions based upon an interpretation of the law that has integrity.
CARDIN: Well, I thank each of you for being here. I think you've added to the record in a way that I think it's important in a confirmation process for an attorney general of the United States.
And I found it extremely helpful to me to try to put the puzzle pieces together, because we are clearly all with the same objective, and that is to see the Department of Justice move forward in its traditional respect from the American people, and as an important part of the administration.
And I think that these confirmation hearings have helped us in that regard. And you all have been part of that and we thank you very much for your presence, your testimony and, most importantly, for your patience as we've been trying to figure out when this panel would, in fact, be heard.
The hearing record will remain open for one week in order to be able to supplement the record. And the Judiciary Committee now stands adjourned.
Thank you all.