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S. HRG。110-478确认听证会议迈克尔B. Mukasey的提名，成为美国司法部长=======================================================================在司法机构联合会委员会之前听证参议院一百十届国会第一届会议---------- 10月17日和2007年10月18日----------序列号J-110-51 ---------- Printed for the use of the Committee on the Judiciary CONFIRMATION HEARING ON THE NOMINATION OF MICHAEL B. MUKASEY TO BE ATTORNEY GENERAL OF THE UNITED STATES U.S. GOVERNMENT PRINTING OFFICE 39-985 PDF WASHINGTON DC: 2008 --------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866)512-1800 DC area (202)512-1800 Fax: (202) 512-2250 Mail Stop SSOP, Washington, DC 20402-0001 COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa DIANNE FEINSTEIN, California JON KYL, Arizona RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma Bruce A. Cohen, Chief Counsel and Staff Director Michael O'Neill, Republican Chief Counsel and Staff Director C O N T E N T S ---------- OCTOBER 17, 2007 STATEMENTS OF COMMITTEE MEMBERS Page Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland, prepared statement................................... 407 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1 prepared statement........................................... 436 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania................................................... 4 PRESENTERS Lieberman, Hon. Joseph I., a U.S. Senator from the State of Connecticut presenting Michael B. Mukasey, Nominee to be Attorney General of the United States.......................... 8 Schumer, Hon. Charles E., a U.S. Senator from the State of New York presenting Michael B. Mukasey, Nominee to be Attorney General of the United States................................... 6 STATEMENT OF THE NOMINEE Mukasey, Michael B., of New York, Nominee to be Attorney General of the United States........................................... 9 Questionnaire................................................ 12 OCTOBER 18, 2007 STATEMENTS OF COMMITTEE MEMBERS Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement.................................. 418 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 159 prepared statement........................................... 438 WITNESSES Canterbury, Chuck, National President, Fraternal Order of Police, Washington, D.C................................................ 206 Hutson, John D., Rear Admiral, JAGC, USN (Ret.), President and Dean, Franklin Pierce Law Center, Concord, New Hampshire....... 208 Johnsen, Dawn, Professor, Indiana University School of Law, Bloomington, Indiana........................................... 210 Martin, John S., Member, Martin & Obermaier, LLC, New York, New York........................................................... 218 Shaw, Theodore, Director, Counsel, and President, NAACP Legal Defense and Educational Fund, Washington, D.C.................. 213 Thornburgh, Dick, former Governor of Pennsylvania, Of Counsel, K&L Gates, Washington, D.C..................................... 203 White, Mary Jo, Partner, Debevoise & Plimpton, LLP, New York, New York........................................................... 215 QUESTIONS AND ANSWERS Responses of Michael B. Mukasey to questions submitted by Senators Leahy, Kennedy, Biden, Kohl, Feinstein, Feingold, Schumer, Durbin, Cardin, Whitehouse, Grassley, Kyl, Graham, Levin, and Dorgan.............................................. 231 SUBMISSIONS FOR THE RECORD Canterbury, Chuck, National President, Fraternal Order of Police, Washington, D.C., statement.................................... 402 Department of Justice, Federal Bureau of Investigation, non- disclosure statement (sample).................................. 410 Durbin, Hon. Richard J., Hon. Patrick J. Leahy, Hon. Edward M. Kennedy, Hon. Joseph R. Biden, Jr., Hon. Herb Kohl, Hon. Dianne Feinstein, Hon. Russell D. Feingold, Hon. Charles E. Schumer, Hon. Benjamin L. Cardin, and Hon. Sheldon Whitehouse, joint letter to Judge Mukasey and his response....................... 411 Hutson, John D., Rear Admiral, JAGC, USN (Ret.), President and Dean, Franklin Pierce Law Center, Concord, New Hampshire, statement...................................................... 421 Johnsen, Dawn, Professor, Indiana University School of Law, Bloomington, Indiana, statement and attachment................. 425 Levin, Hon. Carl, a U.S. Senator from the State of Michigan and Chairman, Committee on Armed Services, letter to Judge Mukasey. 440 Martin, John S., Member, Martin & Obermaier, LLC, New York, New York, statement................................................ 442 Mukasey, Michael B., of New York, Nominee to be Attorney General of the United States, statement................................ 444 Shaw, Theodore, Director, Counsel, and President, NAACP Legal Defense and Educational Fund, Washington, D.C., statement...... 447 Specter, Hon. Arlen: letter to Judge Mukasey and his response..................... 458 letter to Hon. Richard B. Cheney, Vice President of the United States, and his response............................ 463 Thornburgh, Dick, former Governor of Pennsylvania, Of Counsel, K&L Gates, Washington, D.C., statement......................... 469 Washington Post, October 12, 2007, editorial..................... 474 White, Mary Jo, Partner, Debevoise & Plimpton, LLP, New York, New York, statement................................................ 475 NOMINATION OF MICHAEL B. MUKASEY, OF NEW YORK, TO BE ATTORNEY GENERAL OF THE UNITED STATES ---------- WEDNESDAY, OCTOBER 17, 2007 U.S. Senate, Committee on the Judiciary, Washington, D.C. The Committee met, pursuant to notice, at 10 a.m., in room SH-216, Hart Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Leahy, Kohl, Feinstein, Feingold, Schumer, Durbin, Cardin, Whitehouse, Specter, Hatch, Grassley, Kyl, Sessions, Graham, Cornyn, Brownback, and Coburn. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman Leahy. Before we start, just so everyone will understand, something that seems to be a relatively new phenomenon, at least in the years I have been in the Senate, are these demonstrations--choreographed, spontaneous demonstrations at hearings. Just so everybody understands, I want everybody to be able to watch this hearing. I do not want anybody in the audience to be blocked by anyone for any reason whatsoever. I want everybody to be able to watch it comfortably. I am directing the police that if anybody stands up and blocks the view of anybody in this hearing, that person will be removed. Now, if there are any demonstrations either for or against a position I might take, for or against a position Senator Specter or any other Senator might take, for or against a position that any witness might take, that person will be removed. I just want to make that very clear. I am sure it is not going to be necessary. I am sure everybody is going to treat this hearing with decorum. But I recall seeing Senator Durbin here, we had this situation recently in an Appropriations Committee hearing. Judge, please feel free to come up and sit there. Judge, I think I have this wrong. I did not realize on introducing, I think Senator Schumer will introduce you from up here, and Senator Lieberman will introduce you from where you are sitting. So if we could do that musical chair and have you go back. [Laughter.] Chairman Leahy. I will give my statement on this, and then we will have Senator Schumer and Senator Lieberman make introductions. Early this year, as we began our consideration of the United States Attorney firing scandal, I observed that we faced the most serious threat to the effectiveness and professionalism of the United States Department of Justice since the days of the Saturday Night Massacre, when President Nixon forced the firing of Special Prosecutor Archibald Cox. But I noted that unlike during Watergate, this time there was no Elliot Richardson, there was no William Ruckelshaus around to defend the independence of Federal prosecutors. Instead, high officials at the Department and their staffs were complicit with White House political operatives. Now the entire senior leadership and their staffs have resigned, as have Karl Rove and his two top aides at the White House. The crisis of leadership that led to these resignations has taken a heavy toll on the tradition of independence that long guided the Department of Justice and protected it from political influence. I have been here with six Presidential administrations, Republican and Democratic. In every one of them, the Department of Justice was protected from political influence up until now. The firing of the U.S. Attorneys who are the chief Federal law enforcement officers in their districts sent a message to all U.S. Attorneys and the career prosecutors working in those offices that, as sworn testimony we received said, only ``loyal Bushies'' would keep their jobs or advance in their careers. This crisis has taken a heavy toll on morale at the Department and in confidence among the American people. As a former prosecutor, I know that the dismay runs deep, from the career attorneys at Justice and in our U.S. Attorney's Offices straight down to the police officer on the beat. I start this hearing as I did the hearing that this Committee held on the last Attorney General nomination, hoping to be able to support the nominee. After that hearing in 2005, I decided I could not vote for the confirmation of Alberto Gonzales. I did that noting, as Justice James Iredell had in 1792, that the person who serves as Attorney General ``Is not called Attorney General of the President, but Attorney General of the United States.'' There is good reason why the rule of law requires that we have an Attorney General and not merely a Secretary of the Department of Justice. This is a different kind of Cabinet position. It is distinct from all others. It requires greater independence. The departing Attorney General never understood this. Instead, he saw his role as a facilitator for the White House's overreaching partisan policies and politics. Now, restoring the Department of Justice--and I want to restore it. I have enormous respect for the Department of Justice. I have from my days as a law student here in Washington at Georgetown. But it begins by restoring integrity and independence to the position of Attorney General of the United States. The Attorney General's duty is to uphold the Constitution and the rule of law and not work to circumvent it. Both the President and the Nation are best served by an Attorney General who gives sound advice, takes responsible action, without regard to political considerations--not one who develops legalistic loopholes to serve the ends of a particular administration. The Attorney General cannot interpret our laws to mean whatever the current President, Republican or Democratic, wants them to mean. The Attorney General is supposed to represent all the American people, not just one of them. Regrettably, the former Attorney General enabled this administration to continue policies that are in fundamental conflict with American values and decades of law, sound military practice, international law, and human rights. We see it demonstrated yet again in the recent revelation that even after waging and losing a public battle to resist congressional efforts to outlaw torture and honor our obligations, this administration, enabled by the Justice Department, apparently secretly struggled to redefine ``torture'' and ``cruel, inhuman, and degrading treatment'' to allow the very conduct of torture that this Congress had outlawed. We have seen departures from this country's traditions, practices, and established law in connection with interrogation methods that we condemn when they are used by others. Likewise, we have seen political influence corrupt the Department of Justice when it has departed from its longstanding practices and tradition, practices that historically served to insulate it from partisanship in law enforcement. This lawlessness led to Abu Ghraib, Haditha, and Blackwater. And valuing loyalty over competence and accountability led to the bumbling aftermath of Hurricane Katrina, the failure to care for wounded veterans at Walter Reed, and the purge among U.S. Attorneys. There is much that has gone wrong that this administration has stubbornly refused to admit or correct. When President Bush ascribed Attorney General Gonzales's resignation to supposed ``unfair treatment'' and having ``his good name dragged through the mud for political reasons,'' ignoring the fact that numerous prominent Republicans had called for his resignation, he mischaracterized the clear facts about the U.S. Attorney firing scandal that decimated morale at the Justice Department. To reclaim our moral leadership, we need to acknowledge wrongdoings. These hearings are about a nomination, but the hearings are also about accountability. We do need a new Attorney General. We need someone who understands that the responsibilities and duties of that office are not to be a validator for the administration. We are reminded by the examples of Elliot Richardson and William Ruckelshaus from the Watergate era--more recently the examples of James Comey and Jack Goldsmith and Alberto Mora--that law enforcement officials have to enforce the law without fear or favor. and not in reaction to political benefactors but in reaction only to what is the law. We are the most powerful Nation on Earth. We are the most powerful Nation the world has ever known, a country that cherishes liberty and human rights, a Nation that has been a beacon of hope and freedom to the world. We face vicious enemies, and we need the confidence and the resolve to understand that we can and must defeat them without sacrificing our values and stooping to their level. So this is a job interview for a big job--a big job that has become even bigger. Along with helping keep Americans safe and protecting their rights and combating crime and enforcing the law and managing more than 100,000 employees, and a budget that goes into the tens of billions of dollars, the next Attorney General has to begin to regain the public trust. And I think your nomination can begin to repair the process, and I hope all members of the Judiciary Committee, Democrats and Republicans alike, will join to restore the constitutional checks and balances that have been systematically eroded. And I hope we can begin that process this week. So I welcome the nominee. I appreciate the time, Judge, that you and I have spent in private conversation, and I enjoyed meeting your wonderful family this morning. So I hope you will help us restore the Department of Justice to be worthy of its name. The American people expect that. But you know what? Americans deserve no less. [The prepared statement of Senator Leahy appears as a submission for the record.] I have gone over my time, but I think this is an important issue, and I yield to Senator Specter for whatever amount of time he wants. STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Senator Specter. Thank you, Mr. Chairman. This is a very important confirmation hearing, I believe more important than most confirmations of the Attorney General, really approximating the importance of a Supreme Court confirmation hearing. And I say that for a number of reasons: first, the Department is dysfunctional; second, there has been a broad expansion of executive power, necessary in part because we are at war fighting a serious international enemy; and, third, because it takes the Supreme Court and the other Federal courts so long to intervene that the opinions of the Attorney General to guide the executive branch on what is constitutional is more important in this setting. We start with a Department which urgently needs a restoration of integrity and honesty and independence. We have seen a situation where there have been serious allegations of political influence, and it is very important that those matters be cleared up and that the new Attorney General function on the hiring on merit and the firing for cause. We have seen broad expansion of executive authority, and understandably so when we are at war. But at the same time, there has to be a balancing of constitutional rights and civil liberties. I supported the PATRIOT Act, chaired the Committee that produced it and managed it on the floor, supported the Protect America Act. But at the same time, I am very concerned about what is happening with constitutional rights. The detainee situation is still a matter of some urgency. It casts a shadow over the administration of justice in America and holds us up for very substantial criticism worldwide. We have seen a Terrorist Surveillance Program put into effect without telling the Chairman or Ranking Member of the Judiciary Committee. A matter of that constitutional magnitude ought to at least be shared with the top officials, if not us then the Speaker of the House and the Majority Leader, to have some congressional input and some congressional oversight. And we have seen the signing statements where the President has agreed when we passed the PATRIOT Act to accommodate detailed oversight, and then on a signing statement says, ``I may not have to do that, may not be willing to do that under my Article II powers,'' or on the celebrated rapprochement between President Bush and Senator McCain over interrogation tactics, carefully negotiated, and then a signing statement. The conventional understanding of constitutional authority is when the Congress enacts legislation and presents it to the President and he signs it, that that is the law that he has to faithfully execute under the Constitution. And I am awaiting an Attorney General who will tell the President some things he may not like to hear. We have a judicial system which functions in accordance with our traditions, but we still have not resolved the detainee issue. Congress has legislated on it, and you have Combatant Status Review Tribunals which are a joke. You can have a substitute for habeas corpus, but it has to be meaningful. And now the administration has come forward with yet another effort there, I think, to foreclose a Supreme Court decision which is imminent, with five Justices having granted a petition for re-argument on the detainee issue. There are so many matters to take up in this hearing that I think it is likely to be longer than most. We need to examine the nominee's attitude on a reporter's privilege. Can the Department of Justice live with a shield for reporters with the exception of national security matters on a balancing test? What would Judge Mukasey have to say about the evolving approach of the Department of Justice to demand waivers, subtly or by virtual compulsion in the face of the attorney-client privilege? And as we are proceeding in this hearing room, the Senate is engaged in debates on the appropriations process, and there again is a challenge, this time acquiesced in perhaps by the Congress. The Appropriations Committee came up with legislation, a bill for Commerce, State, and Justice, and then there is a move to recommit to the President's figure, not to use the figure established by the Committee or by the Senate. And if we succumb to that, that will be a further enlargement of executive authority. At 11 o'clock, the Senate will take up the appropriations bill on Labor, Health and Human Services, and Education, where I am the Ranking Member, so I will have to be in and out, but in my absence will be watching closely and participating extensively because this is such a very, very important matter. Thank you, Mr. Chairman. Chairman Leahy. Well, thank you, Senator Specter. I should also note--and I think I mentioned this to you--that Senator Kennedy had surgery over the weekend and is recuperating at home, and that is why he is not here. He called us and made that clear. What I was going to do is have Senator Schumer, who is from New York, introduce you, and after he does, I am going to ask Senator Lieberman, who was your classmate, and either he helped you through law school or you helped him through law school, introduce you. Senator Schumer, go ahead. PRESENTATION OF MICHAEL B. MUKASEY, NOMINEE TO BE ATTORNEY GENERAL OF THE UNITED STATES, BY HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK Senator Schumer. Thank you, Mr. Chairman, and thank you for the honor of introducing a fellow New Yorker at today's hearing. I congratulate Judge Michael B. Mukasey on his nomination to be the 81st Attorney General of the United States. I want to also welcome your family members who traveled here for this important day: your wife, Susan; your children, Marc and Jessica. I am sure you all are very proud of your husband, father, and other relations that I know are here as well. Judge Mukasey has had a long and illustrious career that I can give only the briefest of highlights here. Born and raised in the Bronx, Judge Mukasey graduated from Columbia College and from Yale Law School, where he served on the Board of Editors for the Yale Law Review. Then he served for a number of years in both private practice and the U.S. Attorney's Office in the Southern District of New York where he rose to become chief of the Official Corruption Unit. Starting in 1988, and for 18 years, Michael Mukasey was a Federal district court judge for the Southern District of New York, culminating in his serving as chief judge. There he presided over some of the most important and historic cases of the day, including the case of Omar Abdel Rahman, known as the ``blind sheikh,'' Jose Padilla, and many others. All the while, Judge Mukasey earned a reputation for efficiency, fairness, and integrity. Even those who did not always receive the benefit of a judge's favorable ruling--of a favorable ruling, have been quick to describe the judge's basic fairness and decency. Upon his retirement from the bench, one of Jose Padilla's lawyers said, ``I admire him greatly,'' and described herself as ``another weeping fan.'' Another Padilla lawyer has said, ``I don't always agree with where he comes out, but I'm always happy to draw him as a judge. You are going to get your day in court.'' He went on to say, ``His sense of fairness and due process, it's more than intellectual. It's really down to the genetic level. It's in his DNA.'' There are many such testimonials for Judge Mukasey from people he would not agree with politically. But none of Judge Mukasey's experiences, as varied and as valuable as they have been, can prepare him fully for the job that lies ahead. If confirmed, his task will be no less momentous and no less difficult than that facing Edward Levi, when he took the reins of John Mitchell's Justice Department after Watergate, because he will inherit an agency experiencing its greatest crisis since Watergate. By every account, the Justice Department is leaderless and rudderless. It is dysfunctional and in disarray. It is demoralized and decimated. Our investigation this year demonstrated the Department's prior leadership sorely lacked credibility, competence, independence. Against that backdrop, and with only 14 months left, the Department does not now need a series of bold initiatives; rather, it needs steady leadership. This is, we might say, a rebuilding year. The most important qualities we need in an Attorney General right now are independence and integrity, and looking at Judge Mukasey's career and his interviews that we have all had with him, it seems clear that Judge Mukasey possesses these vital attributes. The bottom line is this: There have been many conservative Department lawyers who are honorable and showed allegiance to the rule of law. Former Deputy Attorney General Jim Comey comes to mind. So does the former head of the Office of Legal Counsel, Jack Goldsmith. And as we now know, even John Ashcroft, much maligned for so long, showed genuine courage and conviction at important moments when the rule of law might have fallen victim to those, some in the administration, who disrespected the Constitution. I did not agree with these men on many or even most policy issues--Comey and Goldsmith. I have no illusions about Judge Mukasey either. From talking with him, it is clear that many of us are going to disagree with many of his views, and with some quite strongly. But at this time, the most important question is this: Will Judge Mukasey be independent enough and courageous enough to stand strong, even against the man who nominated him, if that is what the law requires? Former Deputy Attorney General Jim Comey gave an eloquent speech to the National Security Agency in the spring of 2005, and his words are worth noting as we consider the nomination of Judge Mukasey. Comey said this: ``It is the job of a good lawyer to say yes. It is as much the job of a good lawyer to say no. `No' is much harder. `No' must be spoken into a storm of crisis, with loud voices all around, with lives hanging in the balance. `No' is often the undoing of a career. And often `no' must be spoken in competition with the voices of other lawyers who do not have the courage to echo this. And so yesterday I asked Judge Mukasey, and I will ask him again today, this question, and I will be one more minute, Mr. Chairman: If confirmed, will you have the courage to look squarely into the eyes of the President of the United States and tell him no if that is your best legal and ethical judgment? Judge Mukasey then looked me in the eye and assured me, ``Absolutely. That is what I am there for.'' He also assured me he will go back and re-examine the legal opinions that underlie various controversial administration policies-- Chairman Leahy. Senator Schumer, I do not mean to cut you off, but we are going to have to have a break because of the Dalai Lama. Are you going to take much longer? Otherwise-- Senator Schumer. No. About 30 seconds, Mr. Chairman. He also assured me he will go back and re-examine the legal opinions that underlie various controversial administration policies, such as warrantless wiretapping, detention, and torture. Further, he assured me and I trust he will assure this Committee that he will be a voice for working with the Congress rather than going at it alone. In these answers, Mr. Chairman, lies the hope we have a nominee, albeit conservative, who will put the rule of law first, who will earn the respect of the country, and-- Chairman Leahy. Thank you, Senator Schumer. Senator Schumer.--who will restore the Department to its full promise. I expect this hearing will demonstrate that this hope is justified. Chairman Leahy. Senator Lieberman? PRESENTATION OF MICHAEL B. MUKASEY, NOMINEE TO BE ATTORNEY GENERAL OF THE UNITED STATES, BY HON. JOSEPH I. LIEBERMAN, A U.S. SENATOR FROM THE STATE OF CONNECTICUT Senator Lieberman. Thank you very much, Mr. Chairman, Senator Specter. It is an honor to introduce Michael Mukasey to this Committee, to follow the excellent introduction of Senator Schumer. One might say that Senator Schumer gets this privilege for reasons of proximity because he is the Senator from New York. Judge Mukasey is from New York. I think I am here for reasons of longevity. Forty-three years ago this fall, Michael Mukasey and I entered Yale Law School, and as fate would have it, we ended up in the small group, as we called it, in that first semester. Most of our courses were lectures. We were in a small group of 12 or 15 students. We got to know each other very well. It was Contracts. We had a young faculty member named Robert Bocking Stevens, who was from England, and he had a charming way of questioning one of us--tough, demanding. Let's say he was questioning me. He would end his questioning. I would relax, breathe a deep sigh I had survived that round of questioning. He would go to Mike Mukasey. And then when I was least suspecting, he would come back, whirl around and say, ``Now, back to you, Mr. Lieberman.'' It was a hair-raising experience. I want to say that right there, 43 years ago, I saw Mike Mukasey, and I see essentially the same person today. His answers to that tough law professor were always responsive. You may not agree with him all the time. I am sure members of the Committee will not agree with him on some things. But you will always feel after the hearings that you are beginning this morning that he has given you a reasoned answer, he has thought about it, and he is not hesitant to reach an opinion. Second, I would say that the person I met 43 years ago was a young man who was smart, who was thoughtful, who was hard- working, who had kind of a solid center about him as a person, who had a great sense of humor and a ready smile. And it is great to be able to say that 43 years later this is exactly the same kind of person who comes before you as nominee for Attorney General--wiser from experience, apparently, slightly older, but nonetheless with the same strengths. He comes with the experience of more than two decades as a prosecutor, a judge, a private practitioner, which Senator Schumer spoke to, and I will not repeat. I would say two things about this. First, this is a man of the law, not a man of politics. In fact, as I have thought about it, it is hard to think in recent memory of a nominee for Attorney General who comes to the office, comes to this hearing with fewer political and personal contacts to the President who has nominated him than Judge Michael Mukasey. Second, he comes with extraordinary relevant experience in the fundamental questions that challenge us today because of the war we are in against Islamist terrorism, and the challenging questions we have as to how to balance security and liberty. He has some opinions based on experience and judgment that I think will help members of the Committee and I think, insofar as the public as watching, will help members of the public understand better and reach more informed judgments about what we ought to do to protect our lives while also protecting our liberty. I would say finally, Mr. Chairman, Senator Specter, that this combination of personal excellence, integrity, independence, hard work, commitment to the rule of law and our system of justice puts him in a unique position to do exactly what you, Mr. Chairman, and Senator Specter and Senator Schumer have said, which is to restore the morale and pride of the tens of thousands of people who work at the Department of Justice for us every day with great excellence and integrity to preserve our system of justice. So I would say in closing, Mr. Chairman, I ask the indulgence of the Committee in saying with some nostalgia now, ``Back to you, Mr. Mukasey.'' Chairman Leahy. Senator Lieberman, I might say, one, I appreciate very much especially the personal part. And then I would also tell Judge Mukasey--and I do not think Senator Lieberman will mind me doing this. He spoke to me privately and was just as glowing in his private conversation as he has been in his public, and he was very strongly supportive of both your legal background and your integrity and your honesty. Joe, thank you. Senator Lieberman. Thank you, Pat. Chairman Leahy. We are going to make a slight change in chairs. In a baseball game, this is where they would cut to a commercial. But, Judge, please step forward and raise your right hand. Do you solemnly swear that the testimony you will give in this matter will be the truth, the whole truth, and nothing but the truth, so help you God? Judge Mukasey. I do. Chairman Leahy. Judge, you have heard everybody speak about you, say glowing things about you, but also talk about the very strong concerns that Senator Specter and I and many other members have. And this is the part now where the American people have been waiting to hear from you. Please go ahead, sir. STATEMENT OF MICHAEL B. MUKASEY, NOMINEE TO BE ATTORNEY GENERAL OF THE UNITED STATES Judge Mukasey. Thank you. Good morning, Chairman Leahy, Ranking Member Specter, and members of the Committee. Thank you for the opportunity to be here today. When my nomination to be the 81st Attorney General of the United States was announced, I expressed to President Bush my gratitude and deep sense of honor. Since then, I have had the benefit of your graciousness in taking the time to meet with me privately, to express your views and concerns, and to hear my views. I am grateful to each of you for that, as I am to Senators Schumer and Lieberman for their generous remarks in introducing me this morning. And, of course, I am grateful to my family--my wife, Susan, my children, Marc and Jessica--who have been a part of whatever I have done that has been worthwhile. But what comes most strongly to mind as I deliver these brief remarks is that this isn't about me or even about my gratitude to the many people who helped me get here. This is about the more than 100,000 men and women of the Department of Justice who bear the responsibility to pursue justice through the rule of law in U.S. Attorney's Offices, in investigative field divisions, in Federal prisons and other facilities all over this country and all over the world. There are in a sense many cultures in those different offices and divisions, and there are differences as well between the culture of the Department as it may appear in the building that occupies a square block here in Washington and as it may appear in each of the 93 United States Attorney's Offices around the country. But all those apparently different cultures are united by shared values and standards. Legal decisions and the progress of cases are decided by facts and law, not by interests and motives. So too, the Justice Department's mission includes advising the other departments and agencies of Government, including the President, on what choices they are free to make and what limits they face. Here too, the governing standard is what the Constitution and the law permit and require. I am here in the first instance to tell you, but also to tell the men and women of the Department of Justice, that those are the standards that guided the Department when I was privileged to serve 35 years ago, and those are the standards I intend to help them uphold if I am confirmed. Because of the times in which we live, it was to be expected--as, in fact, happened--that many of you would discuss with me weighty and serious issues that sometimes seem to raise a conflict between liberty and security. A great Attorney General, perhaps the greatest to serve in the modern era, Robert Jackson, said that the issue between authority and liberty is not between a right and a wrong--that never presents a dilemma. The dilemma is because the conflict is between two rights, each in its own way important. That is why I have told you during those discussions, and may have occasion to repeat again here today, that protecting civil liberties, and people's confidence that those liberties are protected, is a part of protecting national security, just as is the gathering of intelligence to defend us from those who believe it is their duty to make war on us. We have to succeed at both. It is the honor and the privilege of the men and women of the Justice Department to help us to do that, and if I am confirmed, it will be my honor and privilege to try to help them help us. As I mentioned a moment ago, you have been generous with your time and your advice in the past couple of weeks. I believe that the Department's relationship with this Committee and with Congress is vital to fulfilling its mission. I want to assure you that, if confirmed, I will always appreciate and welcome your advice, as I have since my nomination, and that I and others in the Department will try to be available to you. In that spirit, I am ready to answer the questions you have for me today. Thank you. 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Thank you, Judge, and you had mentioned that your wife, Susan, is here and your son Marc and daughter Jessica, and I would ask the staff to put in the record the names of all the other people who are accompanying you. Someday in the Mukasey archives, they will enjoying looking at the fact that they were all here. Judge, in the course of this Committee's investigation into the termination of U.S. Attorneys, we found evidence that showed the White House and Justice Department officials deciding who to fire were focused on the political impact of Federal prosecutions and whether Federal prosecutors were bringing charges against those people they saw as political opponents. For example, New Mexico U.S. Attorney David Iglesias was fired a few weeks after Karl Rove complained to the Attorney General about the lack of what he saw as voter fraud enforcement cases. Then the fired U.S. Attorney Todd Graves from Missouri was replaced by Interim U.S. Attorney Brad Schlozman, who then brought four indictments right on the eve of a closely contested election. And we had others, in Wisconsin and elsewhere. These prosecutions, like the Schlozman ones, clearly violated the Justice Department's Red Book, which is its guide for Federal prosecutions of election offenses, which basically says you do not bring these last-minute prosecutions when it may affect an election. Now, that guidebook was recently revised under the outgoing, now discredited leadership to do away with that. The Red Book is now a Green Book. Judge, will you go back to the old standards, the standards that have been there with Republican and Democratic administrations as long as I can remember? Judge Mukasey. Well, your question concerns the Red Book and the Green Book, but it obviously goes well beyond the Red Book and the Green Book. It goes to very basic principles that I have articulated before and, if I am confirmed, I am going to articulate again in as clear English as I can, and that is that politics, partisan politics, plays no part in either the bringing of charges or the timing of charges, and that people in the Department should not be authorized, people below a very small group at the top should not be authorized to take calls or make calls with political figures to talk about cases. And those people ought to have available to them and will have available to them, if I am confirmed, the telephone numbers of the very few people who can take calls and make calls on the subject of cases or any other subject in the interest of some elected official. Chairman Leahy. I would also ask you to look back at the old Red Book, too, and the fact that it said don't bring charges on the eve of elections if they are apt to affect the outcome one way or the other. Judge Mukasey. Obviously, the closer you get to an election, when there is a charge that either deals with a candidate or deals with an issue that can affect the outcome, the higher and higher has to be the standard and the greater and greater has to be the necessity for bringing the charge at the particular time in order to justify it. Chairman Leahy. And, of course, you have had a close association with Rudy Giuliani, who is one of the leading candidates for the Republican nomination for President. It goes back to your work with him in the U.S. Attorney's Office, something you have spoken of with pride, and he has, too. And you have served recently on the Justice Advisory Committee. Can I assume that as Attorney General, and with the fact that the Justice Department has to watch that elections are held fairly, would it be safe to say you will totally recuse yourself from any involvement either with Mr. Giuliani or any candidate for President? Judge Mukasey. It is safe to say. It is not only safe to say, I am saying it, too, just so that there is no ambiguity. Chairman Leahy. It is kind of Hornbook law, isn't it? Judge Mukasey. Right. There is no ambiguity in the record. Chairman Leahy. Thank you. Now, let's go to the so-called Bybee memo. I think one of the greatest stains on the history of this country is the memo dated August 1, 2002, signed by then Assistant Attorney General Jay Bybee, that concluded that the President has the authority as commander-in-chief to override domestic and international laws prohibiting torture, to immunize anybody who commits torture, immunize them from prosecution. And many of us voted against Alberto Gonzales's nomination for Attorney General because he refused to disavow legal conclusions in a memo that did not rule out the use of cruel, inhuman, degrading treatment of detainees during interrogations. It turns out that our concerns are well founded. The New York Times recently reported that soon after Attorney General Gonzales took over, the Department of Justice secretly endorsed combinations of the harshest interrogation tactics as legal even though they had been publicly withdrawn under the so- called Bybee memo. Now, do you believe, so we know where you might stand on this, do you believe that the President has the authority under any circumstances to exercise a so-called commander-in-chief override and immunize acts of torture, as the Bybee memo argued? Judge Mukasey. We are parties to a treaty that outlaws torture. Torture is unlawful under the laws of this country. The President has said that in an Executive order. But beyond all of those legal restrictions, we don't torture not simply because it is against this or that law or against this or that treaty. It is not what this country is about. It is not what this country stands for. It is antithetical to everything this country stands for. Soldiers of this country liberated concentration camps toward the end of World War II and at the end of World War II and photographed what they saw there as a record of what the barbarism that we oppose. We didn't do that so that we could then duplicate it ourselves. The Bybee memo, to paraphrase a French diplomat, was worse than a sin, it was a mistake. It was unnecessary. As I have read--I mean, I have read the memo and I have read what has been--some of what has been written about it. It purported to justify measures based on broad grants of authority that were unnecessary. The analysis in that memo was found to be defective, and the memo was withdrawn in favor of a later memo that narrowed substantially the basis for authorizing measures beyond, perhaps different from those that may be contained in the Army Field Manual. Chairman Leahy. Would it be a safe characterization of what you have just said that you repudiate this memo as not only being contrary to law but also contrary to the values America stands for? Judge Mukasey. I do. Chairman Leahy. Thank you. And is there such a thing as a commander-in-chief override that would allow the immunization of acts of torture that violate the law? Judge Mukasey. Not that I am aware of. Chairman Leahy. Thank you. Now, the memos issued under Attorney General Gonzales apparently gave legal approval to harsh physical and psychological tactics, head slapping, simulated drowning, frigid temperatures and so on. The first of these memos was issued over the objections of Deputy Attorney General James Comey, who predicted that the Department of Justice would be ashamed when the public learned of them. And, of course, the public did learn of them. It would appear, though, that they still remain in effect as governmental policy. Will you ensure that the Department of Justice will rewrite its guidance on interrogation and degrading treatment and bring it back into line with the law that Congress passed? Judge Mukasey. I am certainly going to examine the underlying memos and the underlying facts. I have not been ``read in on,'' I think is the Washington expression, any classified program or information, including the classified information that relates to interrogation methods or the memoranda that relate to interrogation methods. And so I cannot say that there is something that is out of line with the law in those programs until I see the programs and see the memos and see whether they are in alignment or not. Chairman Leahy. Will you not only read the memos, but make sure that they are in line with the testimony you have already given and your own views of what is allowed under our law? Judge Mukasey. I certainly will. Chairman Leahy. Attorney General Gonzales apparently believed the President has a commander-in-chief override for many of the laws of this country which contribute to the violations of the Foreign Intelligence Surveillance Act, the so-called FISA, with the signing statement reservation and others, that for 5 years the administration conducted a program of warrantless surveillance that violated the provisions of FISA. They did not come to us and ask us for changes even though this Congress has almost unanimously updated and changed FISA more than 30 times since it was first enacted to take into consideration changes in technology and needs. Only after somebody in the administration leaked to the press that this was going on and the resultant public criticism and telecommunication companies that had cooperated were sued did they come back and say maybe we ought to look at a new law. Do you believe that the President has the authority to override something that is in law, legal requirements, and immunize illegal surveillance on Americans? Judge Mukasey. The President cannot immunize illegality. That is a contradiction in terms. But that said, I think there is a long, complex history to the FISA statute, beginning with its passage in 1978, when the then Attorney General, Jimmy Carter's Attorney General, Griffin Bell, took the view and expressed the view that the limits of FISA did not reach to the limits of Presidential authority, which is to say that there was some gap between where FISA left off and where the Constitution permitted the President to act. I said I was not read in on classified programs, and the Terrorist Surveillance Program that you speak of, although it is no longer in effect, remains a classified program, and so I do not know what the details are of-- Chairman Leahy. But you will get read into it. Judge Mukasey. Of course I will. Chairman Leahy. There will probably be further questions. My last question is this, and I will go back into this more on the next round. If the House or Senate certified a contempt citation against current or former White House officials arising from the U.S. Attorney investigation, would you permit the U.S. Attorney to carry out the law and refer the matter to a grand jury, as required by 2 U.S.C. 194? Judge Mukasey. In order for a U.S. Attorney to take a charge of contempt to a grand jury, a U.S. Attorney has to be able to tell that grand jury that any reliance by the contemnor on a privilege cited by the President or on an order of the President was unreasonable. Unless the U.S. Attorney can say that it was unreasonable for the person who is proposed to be held in contempt to have relied on a privilege or an order of the President, that would be--that person cited for contempt cannot be found to have had the state of mind necessary to warrant charging her or him with criminal contempt. And, therefore, that evaluation is going to have to be made by the executive when, as, and if it happens. I hope and pray for a lot of things. One of them is that I do not ever have to make that decision. But when I make it, I am going to make it in line with the principles I have just discussed. Chairman Leahy. Your predecessor made the decision without even looking at those principles and said that the U.S. Attorney would not be allowed to go forward, and the White House did. You would at least require some principles before making such a determination. Is that what you are saying? Judge Mukasey. That is what I am saying. I am going to be guided by the principles I just mentioned. Chairman Leahy. Senator Specter? Senator Specter. Thank you, Mr. Chairman. Judge Mukasey, many references have already been made to the imperative need for honesty and integrity and independence in the Attorney General of the United States. Going right to the heart of the matter, are you prepared to resign if the President were to violate your advice and in your view violate the Constitution of the United States on an important matter as Attorney General Elliot Richardson did in the Saturday Night Massacre? Judge Mukasey. As you and I discussed, if the President proposed to undertake a course of conduct that was in violation of the Constitution, that would present me with a difficult but not a complex problem. I would have two choices: I could either try to talk him out of it, or leave. Those are the choices. Senator Specter. Well, if the alternative is to leave if you cannot talk him out of it, then I think the answer to my question is yes. Judge Mukasey. It is. Senator Specter. OK. Judge Mukasey, there is a variance between the way you are quoted in this morning's Washington Post contrasted with your citation of Justice Jackson's statement. Your quote in the Washington Post is saying, ``When it comes to the international arena, our national priority is not to do justice to individual litigants; it is to protect the security of the body politic of the United States.'' When you quote Justice Jackson on the considerations of authority versus liberty, he said that, ``Protecting civil liberties, and people's confidence that those liberties are protected, is a part of protecting national security...'' Now, I am candidly concerned with the statement which appears in the Post because when you talk about not to do justice to individual litigants, it moves away from the traditional balancing test. National security is of vital importance, and I think it is fair to say, and a consensus would be present, that the President has to have greater authority in time of war or in time of an attack from international terrorism and a continuing threat, but there is still a necessity to be concerned about individual litigants, which your first statement rejects. Is your dominant view the view you expressed by--or quoted Jackson that protecting civil liberties is a part of protecting national security? Judge Mukasey. It is, and I think I--I am not certain that I recall precisely the context of the statement that was quoted in the Post, but I think I was talking there about individual litigants, not in United States courts but, rather, individuals who may be in our custody abroad and whose rights are less than the litigants--or different from those of the litigants in U.S. courts. Senator Specter. Well, the Supreme Court said in Rasul that if the territory is under the control of the U.S. Government, as Guantanamo was, wouldn't that apply to an individual in custody and control of the U.S. Government anywhere? Judge Mukasey. The holding in Rasul relating to Guantanamo related to a location that we control by virtue of a long-term lease, and it was, as I understood it, a statutorily based holding. In fact, Congress then passed a statute that changed the result in Rasul, which it could not have done had the result been constitutionally based. Whether the result would be the same if we were talking about the Bagram Air Base or some other location, I don't know. And that matter, of course, is now before the Supreme Court, which took cert. in the Boumediene case, and I think the briefs, in fact, have already been filed. Senator Specter. Well, I am interested in your view. You are going to be called upon to make judgments long before the Supreme Court will. That is the great importance of the Attorney General to follow constitutional course, because it takes the Court a long time. But on the issue of where the individual is, when we enacted the detainee treatment legislation in 2005, the critical provision is this: ``No individual in the custody or under physical control of the U.S. Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.'' I am going to come to the latter part in a minute, but the relevant part here for what we are discussing now is that it does not matter where the ``physical location'' is. Judge Mukasey. As to that provision, it certainly does not matter, and that provision relates to cruel, inhuman, and degrading treatment, which no one is permitted to engage in regardless of where he or she is. Senator Specter. Senator Leahy quoted the Bybee memo. I want to refer to another Department of Justice memo in 2002, which said that, ``Any effort by Congress to regulate the interrogations of battlefield combatants would violate the Constitution's sole vesting of the commander-in-chief authority of the President.'' Now, the legislation defining the scope of interrogation to exclude ``cruel, inhuman, or degrading treatment or punishment'' was enacted after a 90-9 vote in the Senate and a highly publicized disagreement between President Bush and Senator McCain in a meeting between the two of them and a rapprochement, and then the President issued a signing statement, which said that his authority as commander-in-chief, authorities under Article II, did not necessarily mean that he would comply with the legislative provision, which is really more than a legislative provision since it was negotiated with the executive branch. Now, if somebody comes to you as Attorney General, if confirmed, and they have a line of interrogation which you conclude violates the language of ``cruel, inhuman, or degrading,'' and you have the authority of Office of Legal Counsel saying that the Congress cannot affect the President's authority on battlefield interrogation, realizing that this legislation says that regardless of physical location, are you going to advise the person who brings you the issue that you follow the statute or you defer to the President's Article II power? Judge Mukasey. Well, I think the question assumes that the President has directed that that method of intelligence, notwithstanding a finding that it violates the law, should proceed anyway. And in that case, I have no course but to follow the law. Senator Specter. Follow the statute. Judge Mukasey. Yes, sir. Senator Specter. The statute controls as opposed to Article II power. Thank you on that point. Judge Mukasey, is there any justification for concluding that the constitutional right to habeas corpus is more limited than the statutory right to habeas corpus? And you and I discussed this informally, and it arises in the context of the Rasul decision by Justice Stevens saying that habeas corpus applied to Guantanamo and habeas corpus is provided for in the statute. But Justice Stevens then went on to say that there was a constitutional right of habeas corpus which emanated from the Magna Carta in 1215, John at Runnymede. And then, to my judgment inexplicable, the Court of Appeals for the District of Columbia said that the change in the statute on habeas corpus limited the constitutional rights of a detainee, notwithstanding what Justice Stevens said in Rasul about the Magna Carta and John at Runnymede. So is there any justification for construing statutory rights of habeas corpus more broadly? Or, really, is there any justification for interpreting the constitutional right to habeas corpus in a narrower way than the statutory right? Judge Mukasey. Senator, as I understand it, that question and related questions are squarely before the Court in Boumediene, and I am going to have to do--to carry into-- Senator Specter. Judge Mukasey, you are punting now. Judge Mukasey. That is right, because I am going to have to do what I was told to do when I was a kid, which is I have to watch my mouth about this. Senator Specter. Well, you can punt a little more easily when that issue is before the Court. I will grant you that. But there are many issues which are going to come to you where a Court decision is a long time away. And this Court decision may be a long time away. They are going to hear argument on it. It has been very contentious. They denied cert. Then on reapplication for cert, they granted it, requiring five votes instead of four. There are going to be a lot of detainees who are going to be asserting their rights, and somebody comes to you in the interim, the Supreme Court has not decided, and they say, ``Attorney General Mukasey, we have got this detainee. We want to know, since he has a constitutional right to habeas corpus, whether we have to accord him that right in light of the fact that the Congress has fiddled around and taken it away.'' What do you say to him? Here you have got a detainee, you have got a person, you have a case in controversy right before you, months before the Supreme Court decides it. Judge Mukasey. That, as you say, is precisely the case that is before the Court, and the Department has filed--has already filed briefs in that case. I am not-- Senator Specter. I filed a brief, too, but that does not mean anything. The court has not ruled. Judge Mukasey. The fact that the Court has not heard it does not mean that I am not-- Senator Specter. Well, my time is up. Chairman Leahy. Go ahead, if you want to finish your question. Senator Specter. I like to set a good example, Judge Mukasey. I like to quit on time. Thank you very much. Chairman Leahy. A strong message to some of the rest of us. Senator Kohl? Senator Kohl. Thank you, Mr. Chairman. Judge Mukasey, when Attorney General Gonzales was nominated, many of us expressed serious reservations about his lack of independence from the White House, and the record shows that we were right to be concerned. For example, the White House and politics generally were very involved in ongoing prosecutions and charging decisions at the Justice Department, and politics infringed on personnel decisions, most notably in the case of U.S. Attorneys, but also regularly in the hiring of career employees. Also, the Vice President's office seemed to control much of the legal advice that the Justice Department produced. We expect you to vow to us this morning that you will be independent of the White House and that politically driven decisionmaking will be eliminated if you are confirmed, but we are hoping that you can say more than that. You have had some time since your nomination to think about these problems and determine a course of action to address them. So how will you ensure that politics plays no role and that there is no appearance that politics plays a role in cases brought by the Justice Department? Judge Mukasey. The question you asked, of course, is enormously important because it goes to whether our citizens and everybody here can have confidence in the administration of justice in this country. And what I have said in meetings with people in the past and what I have said here and what I am going to reiterate, if I am confirmed, is that any attempt to interfere with a case is not to be countenanced; any call to a line assistant or to a United States Attorney from a political person relating to a case is to be cut and curtailed, and that person, that caller, is to be referred to the few, the very few people at the Justice Department who can take calls from elected officials. Regardless of that, hiring is going to be based solely on competence and ability and dedication and not based on whether somebody has got an ``R'' or a ``D'' next to their name. I served in the Department in the U.S. Attorney's Office in the Southern District of New York 35 years ago. I was never asked what my politics were. I did not know the politics of many of the people there, and still do not. And it did not matter. It had nothing to do with our job, nothing to do with the way we did it, and it cannot have anything to do with the jobs of the people in the Justice Department today. That is the standard I am going to make very clear, very precise, and I am going to enforce. Senator Kohl. Other than saying you will not hire or fire U.S. Attorneys solely for political reasons, what can you do to ensure that this practice does end immediately? Judge Mukasey. I don't know now of any ongoing dispute involving the dismissal of a United States Attorney for any such reason, but if there is any such, I am going to get in the middle of it very fast and stop it and do everything I can to stop it. Senator Kohl. What can you say to assure us that the legal opinions produced by your Justice Department will be based on the best interpretation of law and not on the White House or the Vice President's interpretation of the law? Judge Mukasey. I am going to review the significant decisions of the Office of Legal Counsel, particularly those relating to national security, although not exclusively, so as to make certain that they are sound, soundly reasoned, soundly based. We have already had the experience of one of those opinions having to be withdrawn, and I want to make certain that the others that are in place are sound and change them if they are not. I think we need to do that not only so that everybody can have confidence in the administration of justice, but also so that the people who are out in the field, the people who work for agencies, people who may be engaging in interrogation, have confidence that they are acting on the basis of the law and that they are not going to have the rug pulled out from under them at a later time because it is found that somebody had gone too far in giving them authorization. It is important that they be able to do their work, and we are going to expect them to do their work. We want them to get the information that we need. But we cannot expect them to put their careers and their freedom on the line if they do not have confidence that the authorizations that are being given to them are sound. Senator Kohl. Justice Department senior positions, as you know, are filled with acting positions who the President has not nominated and the Senate has not confirmed. Do you think this is a problem for the effective management of the Department and the enforcement of our laws? And if so, what do you intend to do to change it? Judge Mukasey. Of course it is a problem. Matters cannot move forward unless necessary authorizations are given; and if the offices of people who would give those authorizations and move those matters forward are vacant, then things stagnate, and not only does justice not get done, but morale deteriorates. I will try to attract people--and I think I can attract people--who understand the importance of doing the jobs that are unfilled and get people to do them just as quickly as I can. It is not something, obviously, that I could do--or can do before confirmation. I think it would have been regarded as something of an act of presumption for me to start looking at people and talking to people and interviewing people and so forth. But I have thought about it, and it is obviously a top priority. Senator Kohl. Judge Mukasey, for decades this country has been admired around the world for its unwavering commitment to human rights and the rule of law. There is a growing consensus that the detention center at Guantanamo Bay is causing great harm to our reputation around the world. Former Secretary of State Colin Powell said, and I quote, ``If it was up to me, I'd close Guantanamo not tomorrow, but today.'' Last year, even the President himself recognized that Guantanamo has been a focus of international criticism, and he said, ``I would like to close Guantanamo.'' Do you think that we need to close Guantanamo Bay prison? And if so, will you recommend that to the President? Judge Mukasey. I think there are substantial problems with Guantanamo, both problems of reality and problems of perception. As to reality, it is my understanding that although people are humanely treated at Guantanamo, it is more than a matter of humane treatment. It is a matter of the fact that we are detaining people apparently without end, and that it has given us a black eye. And I understand the practicalities that the President has to deal with beyond the question of whether people are or are not being humanely treated. I think a substantial reason for the problem we have had with Guantanamo is that, to use a bureaucratic expression, ``nobody owns it.'' The Defense Department runs it. There is obviously an overlay of Justice Department involvement insofar as we are talking about hearings or not for detainees. The National Intelligence Director obviously has an interest in what happens to the people there because they may very well have or have had information that we need in order to combat terrorism. So it is out there in a kind of no man's land of jurisdiction, and control has to be taken. Senator Kohl. Are you prepared to recommend to the President that we close Guantanamo? Judge Mukasey. I am prepared to recommend to the President that we take the responsible course in dealing with the people at Guantanamo. I cannot simply say we have to close Guantanamo because obviously the question then arises of what we do with the people who were there. And there is now no easy solution to that. Senator Kohl. Well, you have had time to think about this. It has been on the table since the day you were nominated, and for a long time before that. What are you prepared to do with Guantanamo? Are you prepared to close it? Are you prepared to take the steps that are necessary to close it?--which you have indicated needs to be done. But are you prepared to say to the President we need to close Guantanamo as soon as we can, we have several things that need to be done so that we can close Guantanamo, but the prison needs to be closed? Judge Mukasey. I think I am prepared to say that we need to get the best advice and the best ideas that we can and act responsible, with the goal of closing it down because it is hurting us. That I am prepared to say, and I think as regards this President, I think I would be preaching to the converted. I think he understands that, and I think he has said that he understands that Guantanamo has hurt us. Senator Kohl. Is that high on your list of priorities? Judge Mukasey. Yes, it is, along with--yes, along with filling vacancies, it is. Senator Kohl. So we can expect that in the event that you are confirmed, soon thereafter we will be hearing about Guantanamo and the things that you believe need to be done to close it as soon as possible? Judge Mukasey. I think we can expect that I will try to get the best people I can to give the best advice that they can and that I will be making that known to the President. That is what I am going to do. Senator Kohl. Do you believe that Congress has the constitutional authority to prohibit torture? Judge Mukasey. Yes, I do, and it has. Senator Kohl. Thank you. Judge Mukasey, in today's Washington Post there is an article describing how, since September 11, 2001, the Justice Department has redirected its efforts away from fighting violent crime. Referring to the alarming recent increases in violent street crime, the article quotes a speech this week from FBI Director Mueller in which he states, ``We are realizing that national security is as much about reducing the number of homicides in our streets as it is about reducing the threat of terrorism.'' Do you agree with Director Mueller and the statements he made? And if so, what steps will your Justice Department take to reduce the now growing threat of violence across our country? Judge Mukasey. I do, and I think we need to look at both resource allocation and at the resources we have. It is my understanding that the terrorism effort, insofar as it took place within the Justice Department, apart from the FBI, just the Justice Department excluding the FBI for a moment, that that effort was undertaken by people who were taken from the Criminal Division and put into antiterrorism efforts, and that there may have been programs, including anti-gang programs, that may have suffered as a result. And that is something that cannot be tolerated because we cannot turn our society into something that is not worth preserving in order to preserve it. That is not a formula for success. I think we need to figure out staffing. I think we need to get the budget where it ought to be. And, obviously, if I am confirmed, I am going to be here not like a mendicant, but I will be here with, I hope, an intelligent program for putting it on track and for implementing in particular anti-gang efforts. I come from a jurisdiction where violent gangs reduced virtually an entire borough to a war zone and related parts of another borough. I know what gangs can do to a city. I saw it. There is a Violent Gangs Unit in the U.S. Attorney's Office in my district focusing specifically on that. So I understand the importance of that, and it is also corrosive because people attracted to violent gangs obviously are young people, and that is supposed to be our future. Senator Kohl. As you know, Judge Mukasey, violent crime, to which we referring just a minute ago, rose again last year. Many of us are concerned that the way in which your predecessor addressed this important issue was not good enough. In each year of his tenure, he proposed drastic reductions to important State and local law enforcement funding programs. One program this administration has continually tried to eliminate is the very successful and cost-effective COPS universal hiring program. As funding for more police officers on our streets decreased or ended, not coincidentally violent crime rose significantly across our country. Would you agree that we need a renewed commitment to this COPS program to counter the surge in violent crime across our country? Judge Mukasey. I think the COPS program has been very successful, and I think we ought to keep it in place. That said, as I understand the COPS program, the mechanism that was supposed to be put in place was that there would be an initial funding for hiring and then States and localities which saw a good effect from the additional hiring, hopefully had an effect of reducing crime, would themselves begin to fund their police departments and State police officers locally and statewide. But the COPS program was not supposed to be an ongoing funding program for police departments, and I support that. I think programs that teach by example and then permit localities to follow that example are the best use of Federal resources, and I would encourage it. Senator Kohl. So you are not about to say that you do support continuing funding for the COPS program? Judge Mukasey. I think we ought to fund it in such a way that it encourages States and localities to continue the initiative and to keep the momentum going. I think the point was to start momentum and keep it going with State and local funds. And that is the principle I support. Chairman Leahy. Thank you, Senator Kohl. Senator Hatch will be next, and before we start, just so you know, we will continue to go back and forth. Judge, I am going to break about noon, as I mentioned to you earlier. If you need a break before then, let us know. Judge Mukasey. Thank you. Chairman Leahy. The idea, because of the fact that the President is coming up here for the presentation of the Congressional Gold Medal to His Holiness the Dalai Lama, a lot of things slow down in the Capitol. We are moving around, a number of us who are sponsors of that Gold Medal will--or a number of us who are friends of the Dalai Lama want to be there. We will go now to Senator Hatch. Senator Hatch. Well, thank you, Mr. Chairman. Judge Mukasey, I appreciated the time we had together in my office. I certainly appreciated the comments by both Senators Schumer and Lieberman about you and their relationship with you. I thought they were very good comments. You have an excellent reputation as a judge, as a prosecutor, as an attorney. And I for one am very grateful the President has called you to this position. Now, I appreciate your willingness to accept this position at this time, with only a year and a half, a little over a year to serve, at a time when we really need you, and I think everybody should appreciate that fact. And I hope that you will be quickly confirmed at the conclusion of these hearings because we need you down there at the Justice Department as early as we can, and to strengthen and pull together that Department like it needs to be. Now, if I heard it correctly, when Senator Specter was asking you about detainee treatment, I thought he characterized you as saying that a statute necessarily trumps the President's authority under the Constitution. Now, I may have gotten that wrong, but I want to clear it up just in case. Does or can a statute trump the Constitution? Judge Mukasey. If that is what I said, that is not what I meant. Senator Hatch. Well, I know you did not mean that. Judge Mukasey. As I said earlier, even when the Foreign Intelligence Surveillance Act was enacted, it, according to the then Attorney General, did not reach the limit of the President's authority, which means that the President had authority between where the statute left off and where his authority left off. The statute cannot limit that authority because he has the responsibility to protect the country, and so he has the authority that is commensurate with that. But that said, I think it has been obvious from events of the last several years that everybody is better off--the President is better off, the Congress is better off, the country is better off--when everybody is rowing in the same direction. When the President acts pursuant to his authority with help from the Congress, with the tools that the Congress provides, then we do not have to get into butting heads over who can and who cannot. Justice Holmes said that when the Constitution defined three branches of Government, it did not define fields of black and white. There is gray, and there is always friction at the borders. We are all much better off when those issues do not have to be resolved in an either/or fashion. Senator Hatch. Thank you. The first area that I would like to discuss beyond that is the enforcement of our laws against obscenity and pornography. Obscenity and pornography seem to be more widespread than ever. It just seems to be pervasive in our media today, especially the Internet. The consumption of this material harms individuals, families, communities. The production of this material victimizes children as well as adults and disproportionately victimizes women, as far as I can see. I am pleased to see that the Justice Department is finally finishing regulations to implement the child pornography statute Congress passed last year as part of the Adam Walsh Act. Now, eight members of this Committee were cosponsors of that legislation, and I hope the Department will get those regulations finished and rigorously enforce the law with regard to that. Turning to the issue of obscenity enforcement, the Justice Department's record of enforcing the laws against adult obscenity has been criticized almost continuously for more than a decade. These cases essentially stopped altogether during the Clinton administration, and, unfortunately, there is not much more to show during the Bush administration. Just last week, the Los Angeles Times published an article reviewing some of these issues and criticisms. The cases that are brought focused narrowly on the most extreme material rather than on the more mainstream obscenity. And perhaps that narrow approach makes a few convictions more likely, but those convictions have little or no effect on the obscenity industry, and most consumers do not access this extreme fringe material. Now, the larger mainstream obscenity companies will gladly condemn the extreme marginal producers as if by doing so they can take some sort of a moral high ground. In my view, the Justice Department's obscenity enforcement strategy has been misguided. It focuses on prosecuting too narrow a range of obscene material. Now, in my view, there are too few FBI agents and too few prosecutors around the country initiating investigations and cases in this area. So I am asking you personally to review this policy decision about prosecuting extreme rather than mainstream obscenity and to consider changing it. Would you give some consideration to that? Judge Mukasey. I certainly will. Senator Hatch. I would be grateful to you if you would. Judge Mukasey. I certainly will, and I do so because I recognize that even what is referred to conversationally as ``mainstream material'' can have an effect of cheapening society, of objectifying women, and of endangering children in a way that we cannot tolerate. Obviously, we are all aware the Supreme Court has put limits on the degree to which we can prosecute for content. But even within those limits, we have to make sure that this stuff does not affect children and does not wind up undermining families. Senator Hatch. Will you review the allocation of resources and discretion in the FBI field offices to ensure that this area of law enforcement is given the priority it deserves? Judge Mukasey. I will. Senator Hatch. Thank you so much. Let me ask you about a case you listed in your questionnaire as one of the ten most important cases that you have personally worked on, and, of course, that is the Karlin Communications case, a very important case. As you can imagine, this case caught my eye since it occurred in my home State of Utah. Briefly describe your role in this case and why you think it merits being in your top ten list. Judge Mukasey. My role in that case was simply that I was asked to serve, along with actually the principal--the lawyer whose client that was, my former, my late partner, Harold Tyler, who was a former Deputy Attorney General, and a company that was known colloquially as the ``dial-a-porn'' business was being investigated through the U.S. Attorney's Office in Salt Lake City, and they asked us to represent them. It turned out that the statute under which the charges were proposed to be brought and later were brought was a statute that did not apply to an operation of that sort. And that was the nature of the defense that we interposed. I tried first, unsuccessfully, to persuade the U.S. Attorney's Office and to persuade a district judge not to permit the filing of an indictment under a statute that did not apply. After the indictment was filed, I moved before that same judge, as it turned out, to dismiss the indictment because the statute did not apply. He granted that motion, and the case was affirmed by the Tenth Circuit. So far as being among the top ten, it is fairly rare that one gets an indictment dismissed for failure to charge a Federal crime, which is what happened there, but it had to do entirely with whether the statute was the appropriate one or not, and nothing else. Senator Hatch. That is an appropriate effort by any attorney under the law and enforce the law, and that shows, again, I think, how you have acted throughout your lifetime. Some people might try and construe your representation in that case wrongly, but I commend you for being the great attorney you are. Judge Mukasey. Thank you. Senator Hatch. Well, let me just--let me see. I still have a little bit of time. Judge Mukasey, the protection of intellectual property has always been one of my top interests here. Currently, Chairman Leahy and I are working on--and others on this Committee, I have to say, and Senator Specter has done some yeoman work in this area. But a number of us on this Committee are trying to come up with the Patent Reform Act of 2007, which the Senate we hope will consider in the coming weeks. Now more than ever, Americans' ingenuity continues to fuel our economy, and it is imperative that we protect new ideas and investments in innovation and creativity. Piracy and counterfeiting are now the new face of economic crime around the world, far exceeding traditional property crimes. Strong intellectual property protection builds the economies of developed and developing nations alike. Counterfeiting and piracy, on the other hand, cripple growth and stifle innovation. Nationally, my colleagues and I in the Senate are committed to curtailing piracy and counterfeiting, but this is a global problem, and the solution will require a commitment to beef up domestic enforcement and a governmentwide effort to prevent the creation of pirated and counterfeited materials. Furthermore, I believe any solution must take an integrated approach on both the domestic and international fronts, incorporating educational, judicial, and enforcement components. And I believe that the draft proposal released by the Justice Department earlier this year addressing some of the enforcement issues is a good start. Now, what role do you think the Department should have in this important endeavor? Judge Mukasey. I think the Department should be aggressive in protecting the intellectual property, which is as important as any natural resource that we have. That is what fuels our economy, and that is what promotes our growth. And I had occasion as a district judge to enforce intellectual property laws. There is a way of authorizing private entities when they believe that their intellectual property is being knocked off and otherwise duplicated improperly to get a U.S. marshal to go out and seize both the offending material and the means used to produce it. And I did that on more than one occasion, and I think successfully shut down some counterfeiting operations. Obviously, as you say, this is not just a problem in this country. This stuff is pouring in from abroad, and we need to stop it. Senator Hatch. It is a worldwide problem. In the case of terrorist Jose Padilla, you ruled that the Government could designate him as an enemy combatant, but you also ruled against the arguments of able lawyers, such as James Comey and Paul Clement, that Padilla was entitled to consult with counsel. One article, I believe, was in Newsweek about a month ago describing you as telling Mr. Clement that his arguments were absurd. Now, some critics of the previous Attorney General have said that he was not independent enough of the White House. Now, will you take that same backbone that you exhibited there, assuming that Newsweek was accurate, and sense of independence shown during your judicial service into this new position as an Attorney General? Judge Mukasey. Well, I will reject any argument that I feel is without foundation, and I just want to make one minor correction, particularly since I have met Paul Clement since then. He is a superb lawyer. Senator Hatch. I have no doubt that you will work very harmoniously with him. Judge Mukasey. I do not think I actually said his argument was ``absurd.'' My manner and my ruling may have said that, but I don't--I think I tried to avoid that word. I think I did succeed in avoiding it. Senator Hatch. Well, I only raise it because it was a lot of fun for me to raise. [Laughter.] Senator Hatch. I want you to know how much I appreciate your willingness to accept this great position--it is an important position in this country--and how much I personally care for you and like you and respect you, most importantly respect you. You are one of the best, and I commend the President for choosing you, and I really, really thank you for taking this position in this very short time left in this administration. I am grateful to you. Judge Mukasey. Thank you very much. Chairman Leahy. Senator Feinstein? Senator Feinstein. Thank you very much, Mr. Chairman, and welcome, Judge. It is good to have you here, and I also thank you for taking this position. You mentioned earlier--and I wanted to clear something up-- that the Terrorist Surveillance Program is not now in effect. I think you mentioned this in response to Senator Specter's question. It is, in fact, in effect. It has been brought under the jurisdiction of the Foreign Intelligence Surveillance Court, but I do not want anyone to believe it is not in effect. Judge Mukasey. As I said, I am not read in on classified programs, and so I am going to make mistakes like that, and I appreciate being corrected. Senator Feinstein. Thank you, just for the record. Now, let me ask you a question about delegation of authority. Attorney General Gonzales issued an Executive order on March 1, 2006. It was Order 2808, and I have it here. That delegated substantial authority to hire and fire to his chief of staff and the White House Liaison. Those were Kyle Sampson and Monica Goodling. Now, technically, the order does not involve U.S. Attorneys, but it became very clear to me that they played a role unofficially in the firing of the U.S. Attorneys. My question to you is: Will you reverse this order? Judge Mukasey. I didn't understand--I am surprised to hear that order is still in effect, and I certainly believe that, just as a way of--as a tool of administration, delegation is important. Obviously, an Attorney General cannot do everything himself or herself. But that said, the authority is that of the Attorney General, and you do not assign to people who are-- particularly people who are regarded as political people, the authority to make decisions on hiring in contact with other political people. That is not the way I am going to run the Department. Senator Feinstein. Well, I thank you. I would respectfully suggest you take a look at it, because it does vest authority, and I quote, ``to take final action in matters pertaining to the appointment, employment, pay, separation, and general administration of,'' and then it cites three specific categories of service employees. So I would hope that you would take a look at it, and I think it is the nub of the problem that we had before. I would like to ask a question about Executive power, and in Padilla v. Bush, you upheld the President's power to detain Jose Padilla indefinitely, even though he was a United States citizen seized on United States soil, without being charged with any crime. Under an existing statute, no American citizen could be detained ``except pursuant to an Act of Congress.'' You ruled that the Authorization for the Use of Military Force was an Act of Congress and was written broadly enough to authorize Padilla's detention. The Second Circuit disagreed, saying that the AUMF did not authorize the President to detain American citizens like Padilla who were seized in the United States. The Supreme Court did not reach the issue, and it remains unresolved. As Attorney General, will you advise the President that the AUMF authorizes him to seize United States citizens on U.S. soil and detain them indefinitely without charge? Judge Mukasey. I think that the authority of the President to seize U.S. citizens and detain them without charge, leaving aside for a moment where that happens, was, in fact, sustained in Hamdi. The Court in Hamdi did rule that the President had authority to, among other things, seize and detain American citizens captured on the field of battle. Of course, that person was captured, I believe, in Afghanistan. Senator Feinstein. I am talking about the United States. Judge Mukasey. Hamdi left open the question of where the battlefield is and who defines the battlefield. And I certainly cannot say that as of now there is clear authority authorizing what I thought there was authority to authorize in Padilla. Senator Feinstein. Thank you very much. I appreciate that. Also, in your Padilla opinion, you claim that under Civil War era prize cases, the President has inherent authority to respond to aggressive acts by third parties and that ``courts may not review the level of force selected.'' The first question is: How long does this unlimited power last? Judge Mukasey. I think the short answer to that is that it lasts as long as it has to last until the other political bodies involved in the matter can take the matter up and deal with it. And obviously Congress did take up the disaster that was--that fell upon us on September 11 and responded with the Authorization for the Use of Military Force shortly thereafter. Senator Feinstein. So you would then agree that the Congress under its Article I authority would have the right to set boundaries on military actions? Judge Mukasey. I think that Congress under its Article I authority has to provide tools to the President. Where the provision of tools leaves off and interference with the use of those tools and the way those tools are used begins is not something I ever want to see resolved in some definitive way because of a conflict between the two branches. Senator Feinstein. I think this is a real point of issue and could be of issue in the future, and because of this case, I would be very interested in your advice to the President. We well could be faced with an exercise of Executive power that we would want to bind in the future, and so where I am going is: Do you believe the Congress would have the authority under Article I to do so? Judge Mukasey. I think that would very much depend on how it was done and what it concerned. And I am--the learning curve that I have had up until now has been very steep, and I think it is--it is not in my interest and I think it is not in the general interest for me to be in a position of having to come up with highly detailed expressions of view on very difficult subjects, because I want--I am sure we all want that learning curve to continue after-- Senator Feinstein. I understand that. Judge Mukasey.--I leave this hearing room, if I am confirmed. Senator Feinstein. Right. I understand that. But the Padilla case caused me--the statement, ``courts may not review the level of force selected,'' you know, causes some concern. Let me ask one other question. Would not the President have to advise the Congress of his intentions and actions? Judge Mukasey. I think the President does advise the Congress of intentions and actions. I think that obviously very much depends on the level of detail we are talking about. The President would be at the very least unwise to undertake major initiatives without making sure that everybody is on the same page and that everybody understands and is comfortable with his authorization to move forward, because otherwise the country is riven with dissent, and that is not helpful. Senator Feinstein. I would agree. Let me go to the FBI. In the last oversight hearing with Director Mueller, he spelled out both in his written testimony and I asked him questions about the priorities of the FBI, and, in fact, violent crime was No. 8 of eight priorities. Well, in the last 2 years, violent crime in the United States has increased, and I am very concerned about it. Director Mueller also said that the funding staffing level for FBI criminal case agents has decreased by almost a thousand agents--that is 18 percent--since 9/11. My question to you is: Will you look into this? Will you look into this prioritization? You spoke about gangs and their activities, and I am one that believes that we have a real problem with gangs in the United States. Certainly in my State, California, and I believe in every medium- and large-size city in this country, there are, in fact, operative gangs that practice violent crime. So the question I have of you is: Would you make overseeing these priorities a priority of yours? Judge Mukasey. I certainly will, and I will look at the priorities, and I am obviously particularly interested to find out what the other seven priorities are. But there is no excuse for making violent gangs other than a very substantial priority. Senator Feinstein. I appreciate that. Now, in reviewing your record--and this is only important in that it may be a harbinger of how you would view civil rights--we found a case--and it is U.S. v. New York Police Department. It is about a female police officer who was raped by her male colleague. The issue was whether the female victim was treated differently by the employer than the male assailant. And the facts of the case reflected that the victim did not tell the truth about the events, had not secured her weapon, which was eventually used against her. However, it was not disputed that she was raped or that a bullet was fired into her bed. The victim was repeatedly questioned about the attack, placed on restricted duty, charge with making false statements, and eventually fired. The assailant was not interviewed until 8 months after the attack and 2 months after Karen Sorluco was fired, nor was he reprimanded or punished in any way. You were the trial judge on this case, and you decided that it should not be heard by a jury, and you granted summary judgment. The Second Circuit disagreed and ordered a jury trial. After hearing all the evidence, a jury agreed that the female victim had been treated differently than the male officer and awarded her over $260,000 in damages. You vacated that verdict. She appealed and again the Second Circuit overruled your decision, stating that you were wrong to substitute your judgment for the jury's, and that the New York Police Department tragically failed to show any sensitivity to the physical trauma and resulting psychological manifestations commonly experienced by rape victims. Now, as you look at this case in hindsight, and as I look at the case and am concerned about the Civil Rights Division of the Department of Justice at this point in time, is this a showing of your views? Or do you see it as an unusual case? Judge Mukasey. It is, to say the very least, it is a stark euphemism to say that it is an unusual case. The only issue presented to the fact finder in that case--and as I understood it, presented to me--was not whether the police department acted sensibly or humanely or certainly not as I would have acted. The only issue as I saw it was whether they had acted unlawfully in their treatment. And I wrote a decision setting out what I thought the evidence was that indicated that they could not be reasonably found to have acted unlawfully. And I set it out in detail so that the Court of Appeals could understand how I had reached the decision I had reached, and so that, if necessary, they could--as, in fact, they did--reverse the case. It was, as you say, a very unusual case--I am sorry. Chairman Leahy. No, I am sorry. Go ahead. Finish your-- Judge Mukasey. I guess that is the kind of narrow answer to the narrow question, but there is a much broader question, which is the question about harbinger and basically where do I stand on civil rights--on women's issues specifically and on civil rights generally. And there I have a record of 40 years of service as a lawyer, as an Assistant U.S. Attorney, as a judge, in my interactions with my colleagues, with my employees, including my law clerks, half of whom were women, and each of them hired on the merits--on the merits. In my own personal life, I at one time belonged to a club that restricted membership to men, and I tried to undermine that, sponsored for membership a woman whose name did not indicate that she was a woman. And we went through a process, including letters of recommendation without using the pronoun, and saw how far I could go, and it was discovered and she was rejected. And then there were two votes by that club, both of which came out against admitting women. And at that point, I pushed back and said, ``I have had enough,'' and I withdrew. That is just an anecdote, but it, I think, indicates what my personal standard is, and my standard that I would bring to the Department. So far as the Civil Rights Division is concerned, that Division occupies a very special place because the civil rights movement in general has been one of the finest expressions of the genius of American politics that it is possible to imagine. The-- Chairman Leahy. We can go back onto the same question, obviously, in Senator Feinstein's followup time. I agree with what you say about the Civil Rights Division. There are going to be a number of questions on that because of some of the things that have been done there. What I intend to do is have Senator Grassley ask questions. We are going to try to stick within our time, then go to Senator Feingold. We will then close or recess with Senator Feingold and go back to--and if I am not here, Senator Feingold, if you would please recess the hearing until after the matter of the Dalai Lama. Senator Feingold. Thank you, Mr. Chairman. Chairman Leahy. That will give you plenty of time, too, to relax, visit with your family, and have some lunch. Judge Mukasey. Thank you. Chairman Leahy. Senator Grassley, go ahead, sir. Senator Grassley. Judge, congratulations on your appointment. I had a nice talk with you in my office. I visited with you then about some issues, and I said I would probably ask questions on those issues for the record. And so basically I am going to stick within that guideline. If I throw you a curve ball, I will welcome answers in writing if you do not feel comfortable. Judge Mukasey. I will try to hit a curve ball. Senator Grassley. OK. One topic that is near and dear to my heart, as I told you, is the Federal False Claims Act. This is a law signed by President Lincoln, but it was intended to recover Government money lost as a result of war profiteers who sold the Government faulty goods during the Civil War. It needed to be updated, and so in 1986, I passed the False Claims Act to do that. The goals of that amendment of 1986 remain just as important today or just as important as they were 150 years ago. We have recovered $20 billion of money, taxpayers' money that would have otherwise been lost and gone forever. In fact, I think maybe, you know, the deterrent effect probably has saved a lot more money than that, but you cannot measure that. The bottom line is that there is tremendous benefits to the Act and to its aggressive enforcement. Unfortunately, the False Claims Act has been under constant attack since President Reagan signed it in 1986. Opponents have tried to gut it through work of Congress. They have tried to get the Justice Department to slow down enforcement, and they have brought lawsuit upon lawsuit to water the Act down in the courts. Well, in large measure, the False Claims Act has stood the test of the time, including even challenges to its constitutionality. But the next Attorney General and every Attorney General needs to continue to support this law and appreciate the benefits that a vigorously enforced False Claims Act can bring about. Judge, if you are confirmed, what actions will you take to support and strengthen the Justice Department's program to prosecute false claims cases? Judge Mukasey. Well, as you know, the mechanism for implementing False Claims Act charges begins initially with people who could later be witnesses, people who have knowledge of dishonest behavior, behavior that hurts the Government, and they come in and file lawsuits on their own, which are then sealed and sent to the Justice Department so that it can decide whether the resources of the Justice Department, after investigation, whether those resources should be put behind that lawsuit and whether that lawsuit should then be used to recover Federal money and put an end to Federal waste. Those are enormously important. I had, I believe, only one such lawsuit in my tenure, but I tried to treat it with the seriousness it deserved. And the Department is going to have to also treat those cases with the seriousness they deserve, and each U.S. Attorney's Office is going to have to be alert to filing of such a case and to following up on such a case and to interacting with Main Justice if they have to, to get resources to push such cases, because they result, as you say, not only in enormous recovery, but they have a great deterrent value. Senator Grassley. I think you have answered my second question, at least the first part of it, and that is, you obviously seem to vigorously support the Act and its prosecutions. I told you about some attempts to weaken it. I would hope that you would commit to not bowing to outside pressure to weaken the Act. Judge Mukasey. I am not going to bow to pressure from any direction to weaken the Act. Senator Grassley. Would you pledge to work cooperatively with qui tam whistleblowers--and I think you have answered partly that by saying you were going to consider these cases, and they had to be there for you to consider. But would you cooperate with qui tam whistleblowers that file false claims cases and ensure that those cases are reviewed promptly by the Justice Department and do not languish under seal? Because that is a problem we have come up against. Judge Mukasey. I am going to try to make sure that they get reviewed, both promptly and fairly. Senator Grassley. Then let me ask you about a process, about this under seal process. Would you provide Congress with regular updates on the status of False Claims Act cases, including statistics as to how many are under seal and the average length of time a case has been under seal? Judge Mukasey. I am going to examine into whether those statistics can be gathered. I don't know how easy or hard it is to find that out, but I think it is an important thing to find out. Senator Grassley. Well, at least you know that is one of the problems we need to know, as long as we oversight this legislation. A problem that the False Claims Act has encountered has been the courts placing jurisdictional hurdles on the law that clearly were not intended by Congress. For example, in the Totten case, the D.C. Circuit limited the application of the False Claims Act to Government grantees. In that case, it was Amtrak, because the court determine that Amtrak employees were not Government employees within the terms of the Act. Earlier this year, the Supreme Court limited the definition of ``original source'' under the Act in the Rockwell International case. Not only are these two cases contrary to the original intent of the law, they place procedural and jurisdictional hurdles in the way of the U.S. Government and the qui tam relators who seek to recover Government money lost to fraud, thus weakening the effectiveness of the law. In order to fix these inaccurate judicial interpretations, I have introduced S. 2041, the False Claims Act Correction Act of 2007, with several of my Judiciary Committee colleagues. I have asked the Department to comment on this legislation. However, Judge Mukasey, I want to hear from you that you will support my efforts to ensure the False Claims Act is clarified to meet the original goals of the 1986 amendments. So would you agree to work with me to fix these negative interpretations of the False Claims Act and to bring court cases back in line with the intent of the 1986 amendments? Judge Mukasey. I will certainly work with you to do whatever we can do to make sure that the qui tam legislation is enforced the way it was meant to be enforced. Senator Grassley. This next question on the same point is easier to answer. Could we get a timely comment from the Justice Department on S. 2041 after you are sworn in? Judge Mukasey. Obviously, I am going to have to find out where in the Justice Department that particular measure is. But I will find it out and let's see whether we can get a timely comment, because that is necessary. Senator Grassley. When we met in September, we discussed my congressional oversight efforts and how I take that constitutional responsibility seriously. Oversight is a critically important part in helping to make Government more transparent, more accountable, more effective. Everyone benefits from congressional oversight. More importantly, oversight lets the American taxpayers understand what their hard-earned money is buying--or maybe being wasted on, as I just gave a speech on the Senate floor in regard to the GSA on this very issue. So I hope that you appreciate the role Congress has in conducting oversight over the activities of the executive branch, including your own Department. I trust that you will be responsive to my oversight activities, and I expect that my questions and document requests will be answered in a timely and complete fashion. Judge, do I have your assurances that you will assist in my oversight activities, be responsive to requests not just from me but from Congress as a whole, help me to make the Justice Department more accountable to the American people? And I am not asking of your Department anything I would not ask of any department head. Judge Mukasey. You have that assurance. Senator Grassley. As part of my ongoing oversight efforts with the Department, meaning your Department, and its subordinate agencies such as the FBI, I have made extensive document requests and requests for interviews with agents and attorneys. Oftentimes, these requests for interviews are rebuffed, and my requests for documents are delayed due to the lengthy process of ``internal clearance'' at both the agency and the Department. And, obviously, those two words, ``internal clearance,'' remind me of nothing but a stonewall. One noteworthy example among many others is a document request to the FBI for unclassified--I want to emphasize unclassified--e-mails related to the issuance of exigent letters in connection with the use of National Security Letters. Although I sent this request to the FBI Director on March 19, 2007, I have gotten nothing so far, despite assurances from the FBI officials to my staff that they were ``given to the Department''--again, that word--``for clearance.'' Another stonewall. I guess it is like saying, ``Mr. Mukasey, can you tear down that wall? '' But, anyway, waiting over 7 months for unclassified e-mails to such an important oversight matter is unacceptable. I am concerned that both the FBI and the Justice Department clearance hinders the oversight process and may be just another tactic to slow down congressional oversight. So, Judge, will you commit to ensuring that my document requests of both the Department and subordinate DOJ agencies, including the FBI, are fulfilled in a timely manner and do not languish in the clearance process or are not going to be stonewalled? Judge Mukasey. I am going to assure that there is not going to be any stonewalling. I ought to point out, though, that in particular as the NSL issue, there are ongoing investigations there. There has been an investigation by OIG, but there is more investigating going on, as I understand it, and that may be part of the reason why it is not quite as easy as it may seem to clear matters, because that investigation has to be pursued. I will certainly look into what the requests are and whether the information can be provided in some convenient form that does not in some way step on the ongoing investigation. Senator Grassley. It would seem to me like in the words of the Department, it was--or in the words of the FBI, it was given to the Department ``for clearance.'' It would seem to me like at least we should have been told if that is what is holding them up. We were told nothing. Judge, will you review the clearance process at the Department--this may even be more important--if there is something screwy about this clearance process, to ensure that it is not just a way to put up road blocks and further delay production of documents to Congress? Judge Mukasey. I am certainly going to review the clearance process to make sure that it is, in fact, a clearance process and not simply a black hole. Senator Grassley. Will you ensure that my outstanding-- well, you have answered that. Judge Mukasey, I have been an outspoken advocate for whistleblowers because I value the candid, unfiltered information that they provide to Congress about executive branch activities. At the Justice Department, I watched carefully the treatment of whistleblowers by the FBI and have been provided assurances that past practices of retaliation against whistleblowers are over. This includes assurances that the FBI has been working to ensure integrity within the Office of Professional Responsibility, which itself has had internal problems such as retaliation against FBI whistleblowers. One, could you please address what safeguards you would put in place to ensure that all FBI whistleblowers are not subject to retaliation, be it whether it is the OPR or elsewhere within the FBI or the Justice Department? Judge Mukasey. I think I will talk to Director Mueller about the way in which the FBI deals with complaints and make sure that those complaints get a fair hearing, and that the treatment of people who bring complaints can in no way be characterized as retaliation, that those people ought to be-- people ought to be encouraged to come forward. There is to be a designated person to whom they come forward, and that they should be protected. Senator Grassley. If you keep making that statement within the Justice Department, you will find out a lot of things that are wrong, but you will find out also that there is a lot of retaliation. But you might discourage a lot of that retaliation, and so I appreciate very much your comment. I have learned that the FBI and the Justice Department Office of Inspector General have been using an overly broad non-disclosure form, and I think that this was supposed to-- this is what I am talking about here, and my staff will bring that to you. Let me start over again. I have learned that the FBI and the Justice Department Office of Inspector General have been using an overly broad--my time is up? Senator Feingold. [Presiding.] It is, Senator Grassley. Senator Grassley. Yes, I am sorry. I am going to ask you to respond to these questions in writing because I should not abuse my time, and thank you very much. Judge Mukasey. Thank you very much. Senator Feingold. Thank you, Senator Grassley. And I thank the Chair for allowing me to get my round in this segment. Thank you, Judge, for being here, for your willingness to serve our country in this capacity. I greatly enjoyed the cordiality and the quality of our conversation that we had in my office, and I will certainly say, although I do not agree with everything you are saying, you are a much more responsive witness and nominee than we had in the last instance. And I am grateful for that and for the thoughtfulness of your answers so far today. When we met a few weeks ago, I asked about your view of the legality of the NSA's warrantless wiretapping program as described by the President. You said that you were ``agnostic'' about whether the President can authorize violations of a statutory criminal prohibition. Both Senator Leahy and Senator Hatch have brought this up, but this was a key issue in my consideration of the nomination of the last Attorney General, so I want to return to it. I agree with you, we are, of course, better off if we do not have conflicts between the branches. But conflicts do arise. Conflicts have arisen. And the U.S. Supreme Court has serious and detailed jurisprudence in this area. I do not think it is simply a matter of there being gray areas. I think there is a record and there are cases that help inform us, and I am sure you, with your experience and excellent record, would agree with that. Now, you have had several weeks to consider the question I asked you, so I will ask you again: Do you believe that the President has the constitutional power to authorize violations of the criminal law when acting as commander-in-chief? Judge Mukasey. The reason for my expression of agnosticism--and I thought it concerned the Terrorist Surveillance Program--was that I am not familiar with that program. I cannot possibly be familiar with that program. And for me to make a categorical statement with regard to that program one way or the other I think would be enormously irresponsible. Senator Feingold. Well, I think with regard to the law, though, we can talk about the warrantless wiretapping program without you knowing all the details. Let's take this. Do you agree that under Justice Jackson's three-part test the President's authority to authorize warrantless domestic foreign intelligence wiretaps without complying with FISA would be at its lowest ebb in light of the criminal prohibition in FISA? That seems to me to be something you can answer. Judge Mukasey. I think under that analysis, the President's authority, to the extent that it is not a war-based authority directly involving a war, is at its lowest ebb. Senator Feingold. In any event, wouldn't it be at its lowest ebb in this circumstance? Judge Mukasey. It is certainly at its lowest ebb because it does not have congressional authorization. Senator Feingold. And do you think there are situations where the President nonetheless could direct Government employees to violate FISA even where his power, as you have suggested it is, is at its lowest ebb under Justice Jackson's test? Judge Mukasey. Attorney General Bell said that FISA, certainly as originally enacted, did not go to the limit of the President's authority, and in the area between where that statutory authority left off and where his authority left off under the Constitution, on Judge Bell's view--and it is one I share--I think he would have the authority to act. I think it is important to recognize that the Fourth Amendment bars unreasonable searches. It then goes on to speak of when a warrant is required and when it is not. But there is very scant, if any, case law on the question of whether intelligence gathering, as distinct from gathering of evidence for criminal cases, is something that may very well be much more flexible than matters relating to the gathering of evidence for presentation in a criminal case. Senator Feingold. I guess I would say, Judge, in light of the Jackson test, which you have certainly said is relevant, and the clear language of the FISA statute, I find your equivocation here somewhat troubling. A prestigious group of law professors wrote the following to the Committee in 2006: ``Every time the Supreme Court has confronted a statute limiting the commander-in-chief's authority, it has upheld the statute.'' And FISA specifically states that it is the exclusive means for conducting foreign intelligence surveillance of people in the United States, indicating Congress did not intend to leave any room for what Senator Leahy referred to as a ``commander-in-chief override.'' So this is, in fact, right in the core of being about these intelligence issues, and Congress has spoken. I think this is a very important principle, and I think the Attorney General of the United States should be comfortable with that. Would you like to respond? Judge Mukasey. I think in large measure, because I do not know what the program involves and where the statute leaves off and the program begins, I have to limit my response to what it has been up until now. Senator Feingold. Well, for the moment I will take ``agnostic'' as better than simply adhering to some extreme notion of commander-in-chief power. But I certainly hope as you become familiar with the program, you realize what I believe is to be the case, that the statute is exclusive in this area and that it does control. You have been very critical, Judge, and even dismissive on occasions, of people who raise concerns about the PATRIOT Act. In 2004, you gave a speech on it, and you wrote a lengthy piece in the Wall Street Journal. How did you come to write this piece? And why did you decide to write about this particular topic? Judge Mukasey. The piece was not written for the Wall Street Journal. I received an award in that year, and it was expected that the recipient of the award would respond with remarks, and I responded with remarks relating to the PATRIOT Act. And it-- Senator Feingold. What award was that? Judge Mukasey. It was the Learned Hand Medal of the Federal Bar Council, an award of which I will tell you I am very proud. Senator Feingold. Absolutely. Judge Mukasey. And I responded with remarks relating to the PATRIOT Act, and of what I then thought and, frankly, still think were some excessive criticisms of it, some of them without any view of what was in it and what I was recommending to my audience, which was an audience of lawyers, is that they get involved in the debate, that they look at the statute, that they propose amendments to it if they thought they were necessary, but that they participate in the debate in an intelligent, informed way, and not in a way that was just unmoored from reality. Senator Feingold. Which, frankly, is precisely what many of us tried to do from day one as they tried to pass the bill. But how did you conduct your research in writing this piece? Judge Mukasey. I conducted my research in writing the piece on looking at some provisions of the statute and at reading some of the criticisms that had been leveled at it that I thought were not justified. Senator Feingold. And did you rely solely on administration documents and the PATRIOT Act, or did you go into some independent materials? Judge Mukasey. I did not have administration documents relating to the PATRIOT Act. I had the PATRIOT Act. Senator Feingold. So you pretty much had just the words of the statute and some articles about it that were critical that you did not agree with? Judge Mukasey. Correct. Senator Feingold. Well, my sense is that your speech did not seem to take seriously the arguments on the other side. I understand that the PATRIOT Act became a symbol of Government excesses after September 11th and that people often blame the PATRIOT Act for executive branch actions that, you are correct in pointing out, sometimes did not have to do with the PATRIOT Act. That is a fair statement. But many serious people did have legitimate concerns about some provisions of that legislation, many of which have been borne out in a very dramatic way by later events and court decisions. Your speech really kind of suggested that there were no such legitimate concerns. I would like to know if there were any other sources that you relied on to evaluate the arguments of the other side other than the statute. You have answered that it was simply the language of the statute, but I am wondering if there was anything else to it. Judge Mukasey. It was the language of the statute and the criticisms. I sat and composed that in my home. I did not have access to any other material. Senator Feingold. I guess, you know, that concerns me because I think there is very serious debate on both sides on this issue, and these provisions have been proven on a number of occasions, in particular with regard to National Security Letters. A really frightful report from the Inspector General, indicating that the failure of Congress to nail down the statutory language properly led to enormous abuses, suggests that the concerns that were raised by critics were real and had merit. On more than one occasion, you have described concerns about civil liberties implications of the PATRIOT Act as ``recreational hysteria.'' Despite your very appropriate and respectful approach in general, I think that one goes a little beyond respectful disagreement. It reminds me a little bit of Attorney General Ashcroft's infamous characterization before this Committee of critics as ``chasing phantoms of lost liberty.'' I voted for Attorney General Ashcroft, and I agree with Senator Schumer's remarks that he has proven on a number of occasions to have stood up for the rule of law in tough situations. But that comment suggests to me a little bit of a troubling disregard for the seriousness of this issue. Since you first made the comment, three Federal judges have struck down provisions of the PATRIOT Act as unconstitutional. Are these judges engaging in recreational hysteria? Or do you think perhaps a re-evaluation of your criticism might be needed? Judge Mukasey. I certainly do not think that any Federal judge of whom I was aware who dealt with any issue under the PATRIOT Act was engaging in recreational hysteria. What I had in mind were people who used it as a shorthand for everything that terrified them, regardless of whether it was in the statute or not. People who, for example, suggested that they would not under any circumstance cooperate with any investigation because they objected to the PATRIOT Act, I thought that kind of view was inexcusable. Senator Feingold. Fine, and I think there is some validity to that. But I would hope you acknowledge the validity of my concern. Prior to this moment, have you ever publicly acknowledged that not all critics of the PATRIOT Act are engaging in reflexive or recreational hysteria? Judge Mukasey. I believe that I acknowledged it in the very remarks that included that phrase when I said that it may very well be that amendments to the statute would be necessary and that people ought to participate in an informed debate about it and that there may very well be parts of it that are unwise, bad as a matter of policy. And I left that possibility wide open, as I do. Senator Feingold. Thank you, Judge. I would like to finish by asking you questions about the Protect America Act, the law that passed at the beginning of August to grant the Government vast new wiretapping authority. Are you familiar with the controversy surrounding the Protect America Act? Judge Mukasey. I am familiar with the fact that there is a controversy. I cannot say that I am up on the details of it. But I know there is a controversy. Senator Feingold. Are you aware of some of the concerns? Judge Mukasey. I am aware of some of the concerns. Senator Feingold. If you take over the reins at the Justice Department, are there any particular questions you are going to ask about its implementation or any particular concerns you have heard that you will want to try to address? Judge Mukasey. Obviously, I am going to need to know what the details are of the program, and I am going to need to know what actions are protected and how we go about enlisting the aid of private entities in doing this, because Government obviously cannot do it alone. Those are the details I am going to need to find out, the what and the how. Senator Feingold. I have been very concerned about the administration's attacks on the efforts by the House of Representatives to amend that law. I have my own concerns about the House bill, but it is, without question, a good-faith effort both to give the administration the authority it needs and also protect the rights of Americans. As you evaluate the Justice Department's position in the reauthorization process, will you commit that you will meet directly both with critics and supporters of the Protect America Act to understand fully both sides of the debate? Judge Mukasey. I will. Senator Feingold. Thank you, Judge. You have been very patient this morning. At this point the Committee will stand in recess until 2:30. Judge Mukasey. Thank you very much. [Whereupon, at 12:14 p.m., the Committee recessed, to reconvene at 2:30 p.m., this same day.] AFTER RECESS [2:46 p.m.] Chairman Leahy. I'd welcome everyone back. I apologize. This went longer than I had anticipated, although His Holiness the Dalai Lama gave a very, very moving speech, I thought the President deserves a great deal of credit for being here with the questions of Tibetan repression versus Tibetan autonomy in his speech. Edie Whitsell, the other Nobel Peace laureate on the stand, gave a moving speech. But I think that probably Senator Harry Reid summed it up best when he said, ``You refer to yourself as an author. I refer to you as a poet.'' And it really was poetical. Senator Brownback, you've been waiting very patiently, and I yield to you, sir. Senator Brownback. Thank you. I was at the ceremony as well, and it was quite moving to have two Nobel Peace laureates in the room and on the Capitol. It was quite a day. Judge Mukasey, I want to go at a couple of topics. The first one I want to go to is, I think, the lead issue you're going to be wrestling with as Attorney General, presuming you're confirmed, and I will believe you will be confirmed. I want to congratulate you in the hopes that would take place. But I want to look at this particular area of the interaction between intelligence gathering and civil liberties in the United States. That's the issue that this committee has been wrestling for some time about, and you've gotten different snippets and bites of it. You've been a trial court judge on two of the lead cases, really looking at this area, and I think that's why you've been selected for this job, is to help us sort through this juncture of our need to gather intelligence as a country to protect our society and to protect ourselves, to provide for the common defense, which is the first role of the Federal Government, and our need, desire, and requirement that we protect the civil liberties of the people of the United States. This is a tough issue and it's a tough moment, particularly with the ways and means of communication, the ease of travel today, the nature of the world becoming flatter and flatter each day and people being able to communicate. So I want to go right into this. You've continually emphasized the importance of the rule of law and you've discussed controversial PATRIOT Act provisions. You didn't rely on an expansive theory of the executive branch, as I read it, but instead look at the practical impact of each portion of the statute. In these discussions, you have balanced the national security gains from such provisions against any harms to privacy and civil liberties. You have also emphasized the rights of individuals to seek remedies under it. I want to ask you, for the record here, does that remain your viewpoint and does that remain your general view of what we need to do as a society and what you need to do as the Attorney General today? Judge Mukasey. Yes, it does. Senator Brownback. And then going particularly at this, do we have your assurances that, if confirmed, you'll vigorously defend the government's need to gather vital intelligence using laws like the PATRIOT Act and the Protect America Act and its successors, along with protecting civil liberties of the people of the United States? Judge Mukasey. Yes. Absolutely. Senator Brownback. On September 26th, a district judge in Oregon struck down two provisions of the PATRIOT Act dealing with searches and intelligence gathering. I'm sure you followed the various legal rulings on provisions of intelligence gathering in the PATRIOT Act. What's your response to this ruling, and how would you deal with it as Attorney General? Judge Mukasey. I've not looked at the ruling in detail, but the one thing I know about my own rulings as a district judge is that they are only as durable as the time it takes to get them to the circuit. I assume, without knowing, that that decision will be appealed to the Ninth Circuit, and if necessary, to the Supreme Court. The word of a district judge, although persuasive and obviously dispositive in the case before that judge, is hardly ever the last word on any subject. Senator Brownback. Are there any particular criticisms of intelligence gathering laws like the PATRIOT Act or others that you feel this committee should know about from your viewpoint and from your vantage as being a judge on several of these key cases? Judge Mukasey. There are none that come readily to mind. I would seize on just two words in the question you asked before when you talked about--you mentioned my experience as a district judge, and then you mentioned practicality. The experience as a district judge teaches me that the abstract is a very bad place to decide questions like this. Concrete situations present themselves that confound a lot of theories, and the best policy is to be guided by general principles, but to wait for a situation that presents itself before deciding on a hard-and-fast position as between one and the other, because reality has a way of undoing a lot of theories. Senator Brownback. But to give us a view here, and to give the American people a view of your advice and counsel that you'll give to the President of the United States, I can't give you hypothetical cases. There would be a hundred that could easily come to mind, actually, but that wouldn't be fair, nor would you answer it, nor should you answer it. But is there anything in what I read here, or otherwise, that would illuminate for us your thinking when you balance these issues of security needs of the American people and civil liberty requirements under our Constitution? Judge Mukasey. I think we need to have a very clear-eyed idea of what it is we're protecting when we talk about protecting civil liberties, as well as to recognize the need to gather intelligence. The rights of free speech are, thank heaven, very much intact in this country. Some people are concerned that intelligence gathering interferes with their rights of privacy. I think it's important for people to understand, as a general matter, what it is the Government does in gathering intelligence, not in detail, obviously, but that it is very much like what law enforcement does in gathering--in conducting investigations in the line run of cases. Very often, we're not talking about anything that is different in kind from what is done in conducting investigations generally. Senator Brownback. Just basically extending in the intelligence gathering operation the same both requirements and protections as we do presently under criminal law investigations. Judge Mukasey. Correct. Senator Brownback. And I've seen you write on that in some of your pieces. It's basically extending that same set of logic and requirements there into the intelligence gathering. Judge Mukasey. Correct. Senator Brownback. And that would be a basic mind-set you would bring to this field and area? Judge Mukasey. It is a basic mind-set that I do bring to it. Senator Brownback. I want to take you to the blind sheik trial of 1999, the World Trade Center bombing and related terrorism plots. The lead co-defendant, Abdul Rahman, sought to introduce expert testimony to show that his actions were governed by Islamic law. You properly, I believe, excluded the testimony on Islamic law as irrelevant to the criminal charges and potentially confusing to the jury. As the Second Circuit explained in affirming your ruling, it would not constitute a defense that Abdul Rahman was justified within the framework of Islamic law. Do you remember this piece of that case? Judge Mukasey. I do. And the point of the ruling was that the issue before the jury was not what Islamic law provided or didn't, but rather what was in his mind when he made statements that were proved at trial to his followers about what they should do, and what was appropriate for them to do, and that his obligations under Islamic law were totally irrelevant to that. The issue wasn't Islamic law, the issue was what was in his mind and what wasn't. Senator Brownback. And that's the issue that I want to get at, if we can. It may be a difficult thing to discuss or get at. But certain countries' courts have held that Sharia, Islamic religious law, trumps civil constitution. There's been a case in Malaysia. There was a case earlier this year in Germany where a Frankfort presiding judge over a divorce court involving two Muslim Moroccan residents in Germany put aside German divorce law and ruled instead on the basis of her understanding of the Koran. The case aroused considerable controversy, and in June the Justice Ministry in the German state that she resided in--the judge did--decided against disciplining the judge. What would be your thoughts on this were this to arise in the United States, in a court of law in the United States? Judge Mukasey. I think we should not create anywhere in this country enclaves that are governed by any law other than the law that applies to everybody. We live in this country under one system of laws. Whatever may be the religious requirements of any group, we don't create enclaves where a different law applies, different law governs, and people don't have the rights that everybody else has outside that enclave. I would resist that very firmly, the creation of any such enclave. Senator Brownback. Good. I think that's the right way to look at it. It's troubling to a number of people, and it's troubling to me that you see these sorts of thoughts starting to come forward, and in western countries, that they move forward. The Constitution is the law of the land and it governs all of us, and the laws that proceed out of it that are built here. Senator Hatch brought up some of the cases on pornography that I spoke with you in private about, and I'm pleased to see your interest and willingness to deal with some of that because it is an important issue that's affecting our overall society. In the time I have left, there's one other issue that will come up--and you'll have a number of issues--on prison recidivism and reform that I just want to put out in front of you. A number of us are working on a bill that we worked with your predecessor on called the Second Chance Act to address prison recidivism in the United States. We've got a system in the U.S. where, once you go to jail, two-thirds of the time you're going back. It's just been a high-cost, revolving door, very costly system. What we've put forward on a bipartisan basis is a series of funding. It is to fund efforts that will cut recidivism rates in half over 5 years of groups that work within the proposal. Some of them are faith-based, some are not. A lot of it is mentoring programs. A lot of it is relationship building for when the prisoner gets out. I want to ask your attention to that, and hopefully your support of this effort, because I think it's one of the key things that we need to deal with on trying to cut down the number of people in prisons, given the crowded situation that we have today. Judge Mukasey. I certainly agree. I think we need to stop the system where our prisons are essentially an institution of higher learning for criminality and where recruitment to criminality goes on. That's not something we can afford because these people, after they go in, are going to come out some day. When they come out, we want them to come out as productive citizens. I know that it's hard to generate popular support for prison programs. It's often seen as kind of the last priority. But we need to face the fact that those people need to come out in a productive way, and in order for them to do that they're going to need some kind of support in the institution to make sure that that happens. Senator Brownback. Thank you, Judge. Thank you, Mr. Chairman. Chairman Leahy. Thank you very much. Senator Schumer, you're recognized for 12 minutes. Senator Schumer. Thank you, Mr. Chairman. Thank you, Judge Mukasey. I thought I'd just share with the panel and the audience, during the break Judge Mukasey told me that he was enjoying the debate. He said it was a good back- and-forth on questions and answers and the kind of discussions--he didn't say this--but I imagine you might even have at law school. I know he was a professor there. I told him that's great, and I think it speaks well of him. That's what many of us felt was so sorely lacking at the Justice Department for so many years, and hopefully there will be lots of honest debate and discussion with the Congress as we move forward. My first question is about judicial independence. As you know, Jack Goldsmith, former head of the Office of Legal Counsel, wrote a book, this book, called ``The Terror Presidency''. I know you're familiar with it because we talked about it during our discussions. It details some of the pressures brought to bear on Jack Goldsmith by figures in the administration who wanted him to justify what he thought wasn't right. What did you think of this book, Judge Mukasey? Judge Mukasey. I thought it was superb. Talk about, couldn't put it down. I was, in a way, sorry when I finished it. Senator Schumer. Well, let's hope he doesn't have to write another one, or you don't have to write one like this. Judge Mukasey. I don't have a book in me. [Laughter.] Senator Schumer. OK. Thanks. Chairman Leahy. You may after these hearings. [Laughter.] Senator Schumer. He's having a good time, Mr. Chairman. Or not a bad time, anyway. Goldsmith repeatedly points out that the administration missed opportunities to put its terrorism policies on sound legal footing simply by going to Congress. In Hamdan, for example, the Supreme Court chastised the administration for not going to Congress, saying the administration could not proceed with military commissions without Congress's explicit approval. He describes one meeting where now-Solicitor General Paul Clement warned that the Supreme Court might not accept the administration's arguments in support of its detention programs. On page 124, Goldsmith reportedly says, `` `Why don't we just go to Congress and get it to sign off on the whole detention program?' Others supported this approach, but David Addington, Vice President Cheney's Chief of Staff, asked, `Why are you trying to give away the President's power?' '' So they didn't go to Congress. Now, do you agree that working with the Congress in the long run actually enhances the President's power, increases public confidence, and protects policies from being rejected by the court? Judge Mukasey. As a general matter, certainly I do. Senator Schumer. OK. And do you commit to working with Congress before moving forward with any proposal like national security courts? Judge Mukasey. We can't move forward with national security courts unless and until we work with Congress. The Constitution says that it's Congress's power, not anybody else's, to constitute--as it says ``such inferior courts as Congress may from time to time create.'' Senator Schumer. Right. OK. How about with respect to any new surveillance tools that you believe are needed that are outside of FISA rather than stretch or ignore FISA? Judge Mukasey. I'm not in favor, generally, of stretching or ignoring. On the other hand, I don't know what tools are going to come to hand or to mind in the future. Senator Schumer. I'm not asking the specifics. I'm just asking, if it's your opinion that the law ignores FISA or stretches it in a somewhat contorted way, would you suggest going to Congress? Judge Mukasey. I would certainly suggest that we go to Congress whenever we can. It always strengthens the hand of the President to do that. Senator Schumer. Thank you. Jack Goldsmith also writes, ``It was said hundreds of times in the White House that the President and Vice President wanted to leave the Presidency stronger than they found it. In fact, at least in my opinion, they seemed to have achieved the opposite. They borrowed against the power of future Presidencies, Presidencies that, at least until the next attack and probably even the following one, will be viewed by Congress and the courts, whose assistance they need, with a harmful suspicion and mistrust because of the unnecessary unilateralism of the Bush years.'' The last Attorney General, by all accounts, was not much more than a potted plant or a rubber stamp behind closed doors when the subject turned to working with Congress. I want to know what attitude and approach you will bring to those discussions. Do you agree that unilateralism is a bad idea? Judge Mukasey. Unilateralism, across the board, is a bad idea. There are powers inherent in each branch, here and there. Senator Schumer. When you're in the room, the room that Goldsmith was in, will you go along with a unilateral approach? Judge Mukasey. I will do what I think the Constitution and the laws mandate. If the subject under discussion involves an authority that I think actually inheres on the President, and for all my endorsement of bilateralism and for all my belief that it strengthens the hand of the President, there are some authorities that inhere in him, just as there are some authorities that inhere in this body. But if we're talking about something that is a subject on which he should get the concurrence of this body, or even a marginal subject, I will try to have a bias in favor of getting the concurrence of this body because it makes everybody stronger, whether-- Senator Schumer. Thank you. I think Goldsmith would agree with that. I think many of us on both sides of the aisle on this committee would agree with it, and I think it's a refreshing change. Now, Goldsmith also writes that some of the OLC opinions he read when he came into office were ``deeply flawed and sloppily reasoned''. That's Goldsmith's view, obviously. You assured me yesterday, and I just want to get this on the record, that you would undertake a review of existing OLC opinions, if you're confirmed, on various issues. So just confirm to me that you will do such a review on the terrorist surveillance program. Judge Mukasey. I will. Senator Schumer. Detention policies. Judge Mukasey. Yes. Senator Schumer. And torture policies. Judge Mukasey. Yes. Senator Schumer. Thank you. Judge Mukasey. Well, torture--I wouldn't characterize them as ``torture policies''. But from what you're telling me, is a policy on doing something unlawful. I don't know of any such policy, and candidly, I hope not to find one. Senator Schumer. OK. That's fair enough. And if you find in this review a problematic opinion or legal justification, will you modify it, correct it, or withdraw it? Judge Mukasey. I will raise it with the people who originated it at first. As I said, my learning curve has been pretty steep, and it's ongoing. Senator Schumer. I understand. But let's say your view is that it doesn't have the legal justification asserted in the opinion. Judge Mukasey. If my view, after consideration, with those people and with other people that I think I have to talk to is that it has to change, then it will change. Senator Schumer. Right. And will you do so publicly and inform the Congress? Judge Mukasey. I have to be very, very careful about what I do publicly--what I undertake to do publicly and when I don't. I don't know the subject of all those decisions and I need to consider them and that subject before I make a categorical promise to come out and announce that I'm changing a policy. Senator Schumer. If it's not going to create any adverse interest, if possible, will you do it publicly so we're all stronger? Judge Mukasey. I think it's important that government explain itself to its citizens and to the Congress. That's what I think, and that's what I'm going to continue to think. Senator Schumer. Right. OK. Next, I'd like to move on, talking about independence. I take it you knew Jim Comey when he was the U.S. Attorney in the Southern District. What did you think of his commitment to legal and ethical excellence? Judge Mukasey. I thought it was admirable and complete. Senator Schumer. As I mentioned in my introductory remarks, Comey gave an extraordinary speech to the National Security Agency on May 20, 2005. He talked about the difficulty of doing what is right as a government lawyer. He talked about the difficulty of saying ``no''. So, Judge Mukasey, here's my question again publicly, the one I asked you privately yesterday: will you have the courage to look squarely in the eyes of the President of the United States and tell him ``no'' if that is your best moral and legal judgment? Judge Mukasey. Yes. Senator Schumer. And even when people are suggesting, as apparently David Addington has before, that ``blood will be on your hands'' ? Judge Mukasey. Yes. Senator Schumer. In the future, if your Office of Legal Counsel is unable to find a legal basis for a counterterrorism program, you agree with the conclusion, and the White House insists on proceeding with it nonetheless--we've had this instance, as you know--what will you do? Judge Mukasey. That presents what I guess I can describe as a difficult, but not a complex, problem. I will either talk them out of it or I will push away from the table and leave. Senator Schumer. Thank you. OK. This is executive privilege. I have limited time left, so I'm going to be quick here and not go through it all because we talked a little bit about this yesterday. This is one area where I think we had some disagreement. As you know, many of us felt that the administration was going much too far in asserting executive privilege, particularly in the U.S. Attorneys' investigation. One area where I thought they particularly stretched it was in a claim of executive privilege when a third party, say the chairman of the New Mexico Republican Party--that was one specific instance we had--reached out to somebody within the administration. I've never heard of executive privilege being used in that regard. The rationale of executive privilege is to allow unimpeded conversations within the White House, or even within an executive branch, to go on without the fear that they might be made public. I've never heard that where there's a third party, where there's always a fear it might be made public by the third party who had the discussion and is not under executive privilege. What's your view of this? Have you had a chance to think it over overnight? Judge Mukasey. I looked at the letter quickly, and I've thought about it a bit. I don't know the facts relating to, what was it, the chairman of the New Mexico Republican Party? Senator Schumer. Yes. Judge Mukasey. I don't know who called whom, and why. Obviously, within the executive there has to be the ability to gather facts, both from within the executive and from the outside. I suppose I can envision circumstances in which, because of the need to gather facts, there may be some question of privilege. Again, I don't know what the situation was with respect to the chairman of the New Mexico Republican Party. I will admit to you that my first reaction to that section of the letter was: ``Huh?'' But I'd like to take a closer look at the facts before that's my only reaction. Senator Schumer. Just keep ``huh-ing'' on that. Judge Mukasey. OK. Senator Schumer. Thank you, Mr. Chairman. Chairman Leahy. Thank you. To follow on what Senator Schumer was saying about the question of torture and what you will find, if you find something that you think is inappropriate, whether you'd change it, trust me, if you're confirmed, you're going to get an opportunity to discuss this with us further. We will be having another hearing after the first of the year, and by then you will have had a chance to see all these things. I suspect you will find folks on both sides that will be asking. But in the meantime, as I've suggested to you before on these things, you should never hesitate. If you want to bounce ideas off of Senator Specter or myself, on behalf of the committee, please do so--an offer we made to your predecessor, and he never took us up on it. Senator Cornyn? Senator Cornyn. Judge Mukasey, as I told you when we met privately, I was not familiar with your name or your reputation until I first saw that Senator Schumer had suggested you might possibly be a good nominee to the U.S. Supreme Court by President Bush. But I have to tell you, since I've become better acquainted with your record of public service and your professionalism, I've grown in admiration of your fine record. I congratulate you on this nomination. Judge Mukasey. Thank you. Senator Schumer. Oh ye of little faith. [Laughter.] Senator Cornyn. I have to tell you, I was also profoundly struck when you started your comments this morning and said ``it's not about me''. What a refreshing point of view here in Washington, DC. I do believe you when you say that, and you believe it's about serving your country. I respect that. I want to just tell you, as I was reading through some of the things you have written, as a member of what we call in the Congress ``the recovering judge caucus''--we have a small group of former judges who now serve in Congress--I admired your choice of Learned Hand in one of the articles that you wrote about the Spirit of Liberty and his famous comments in that speech, that ``the spirit, which is not too sure that it's right,'' is one that we ought to emulate. You were talking in this article about the PATRIOT Act, a statute which you said critics ought to read before attacking it. You noted that it had become the focus of a good deal of hysteria, some of it reflexive, and much of it, you said, recreational. I was reminded once again that your experience in the court of law, my experience, and those of us who practiced in a court of law, the standard for proof in a court of law is substantially more rigorous than it is in the court of public opinion. This is particularly true in hearings before Congress; even though witnesses take the oath, things are said that probably wouldn't be admitted in evidence in a court of law. But the one thing that I wanted to ask you about is that you point out that the PATRIOT Act broke down the wall between intelligence gathering and law enforcement. You also said that the previous decision establishing that wall preventing the sharing of information had been a stark misreading of the law. Why do you believe that there's been an apparent inability to communicate to the American people in widely acceptable terms the difference between a criminal law paradigm and fighting a war on terror and dealing with a military paradigm? Judge Mukasey. I can't say, as I sit here, that I know why there's been a failure to communicate that. I think that it is very important for government generally to make the case to its citizens for what it does, not just to do things that promote their welfare, but make the case. I'm a lawyer, and so I'm the sort of person who's trained to make the case. I would like, if I'm confirmed, the opportunity to go out and do that. And I don't mean I'm just going to go off on some speechifying tour, but it's one of the things that I take very seriously, and that is the need to make the case for the importance of what we do, and for the fact that we do it within the law. We don't just do it willy nilly, we do it with due regard for the real interests that are at stake. Senator Cornyn. And of course, in a criminal law context you're always punishing an act after it occurred. Obviously the goal of our intelligence gathering and fighting a war is to prevent terrorist attacks from occurring. But there's one other example I wanted to ask you about. In your experience in trying the 1993 World Trade Center bombing case, did it occur that a list of some 200 unindicted co- conspirators was turned over to the defense-- Judge Mukasey. Yes. Senator Cornyn.--and ultimately found its way into the hands of--well, it found its way to Sudan, I believe, in the hands of others who subscribe to the same views on jihadism that the defendants in that case did. Is that maybe another example why the criminal law paradigm is not always the best approach? Judge Mukasey. The law of unintended consequences operates there, as it does in a lot of other places. That list had to be served under the law, and it showed up, we found out, long afterwards, in Khartoum in the hands of Osama bin Laden, who happened to have been on that list, and it told him who was on that list, that he was included, and who we knew about who was working with him. Senator Cornyn. Let me pivot quickly here, since time is short, to the reporter's shield law that's been proposed to Congress. There are a lot of things that the members of this committee agree on. The Chairman and I have been working closely together on reform of the Freedom of Information laws for the first time in a generation, and I trust we'll be working with the Department of Justice on that when you're confirmed. But the shield law that's been proposed has a provision that provides a qualified privilege to covered persons. What I expressed a concern about, and Senator Durbin and Senator Feinstein also voiced some concerns--I'll let them speak for themselves--is that the definition is so broad that it would cover virtually anyone who decides to publish information. For example, consider the young jihad enthusiast who uses the Internet to spread Osama bin Laden's message. A blogger posts an English translation of a scholarly treatise advocating violent jihad and lists hundreds of links to secret websites where his readers can obtain the latest insurgent videos from Iraq. As you may know, Judge, this is not a hypothetical situation. This is the case of a 21-year-old American who writes his blog from his parents' home in North Carolina. The New York Times reported this story on Monday in an article entitled ``An Internet Jihad Aims at U.S. Viewers''. My concern is that if we pass a reporter's shield law, which I voted for out of the committee, but with the caveat that I'm concerned about the breadth of that definition, Congress will be providing a qualified privilege to anyone who holds themselves out as a journalist. Do you have concerns about the breadth of that definition as well and how it would actually impact your ability to do your job? Judge Mukasey. That is one, but only one, of my concerns. Senator Cornyn. And would you care to share with us your other concerns? Judge Mukasey. Sure. Even if you narrow the definition to include people who are reporters for a living, I can recall, when I was a college journalist of sorts, meeting a TASS reporter, a reporter for the then-Soviet news agency, TASS. It was very clear at the time that many, or most, TASS reporters were in fact KGB agents who were working full-time as reporters, but indeed were doing a lot of other things. I can't help but believe that the same is true of many reporters for Shinhwa. I don't know that for a fact, it's just a belief based on my own experience. It would not be above the capability of someone involved in a terrorist organization to become a journalist or to have a whole superstructure erected around her or him that allowed them to present themselves as a journalist, somebody earning a full-time living as a journalist, and still be someone who would be protected by the law. So, that's one concern. Another concern has to do with the kind of proof that has to be presented in order to overcome the shield law, proof of danger to the country, which sometimes is an imponderable, hard to prove in advance. The example of that list of unindicted co- conspirators is only one example, but it's a good one. Nobody could have proved in advance that turning that over was going to be dangerous, but you can prove it in retrospect. I don't want to have to look at retrospect, so I'm uneasy about that, too. Senator Cornyn. You are no doubt familiar with ``Project Exile.'' The program is focused on gun crimes and prosecuting gun crimes under the Federal laws, with mandatory minimums for felons and others carrying guns illegally, going after the gun crime as a discrete offense, and punishing that in addition to whatever other crimes are being committed. That Federal program gave rise to something in my State, when I was Attorney General, we called ``Texas Exile'', which was a very successful collaboration between Federal, State, and local law enforcement officials to persuade criminals to leave their guns at home by letting them know that there would be a significant and meaningful punishment--meaning imprisonment--if they used a gun in the commission of a crime. I wanted to commend to you the Project Safe Neighborhoods follow-on, which is now a substantial program within the Department of Justice, and ask for your support, or at least your willingness to work with Congress to try to make sure that we continue to prosecute gun crimes vigorously, and thereby, I believe, reduce a lot of the violence associated with gang activities, drug transactions, and hopefully in the process save some lives. Will you give me that commitment to work with us on that? Judge Mukasey. I sure will. Senator Cornyn. Thank you. Let me give you one quick caveat in the one minute I have left. There is sort of an anomaly. This came to light in the case of the prosecution of two Border Patrol agents who shot a drug dealer along the border in my State in Texas, and because they discharged a firearm in the course of the activities for which they were convicted, they received an automatic minimum 10-year plus-up to their prison sentence. I'm not sure. I know there was some conversation about this when Congress passed these laws, how they would apply to a law enforcement officer who has no discretion but to carry a firearm in the course of their duties, and how it might disproportionately impact that law enforcement officer. I'd just ask here today, simply, whether you would agree to work with us, the Judiciary Committee, to look at that statute to see whether we ought to revisit it, and whether it does unfairly impact law enforcement officials who do have to carry, and sometimes discharge, their firearms in the course of their lawful duties. Judge Mukasey. That was a very difficult case, and I will, yes. Senator Cornyn. Thank you very much. Thank you, Mr. Chairman. Chairman Leahy. Just so we'll know what the list is, on this side we have Senator Durbin, Senator Whitehouse, Senator Cardin. On the Republican side we have Senators Graham, Sessions, and Kyl. We will alternate back and forth. It would be my intention at the end of that, a number of people have suggested second rounds. We will not begin those today. When the last person has asked their questions, then we will recess over until tomorrow. I will consult with Senator Specter on a time that that will begin, but we will also make sure, of course, that we let you know. Senator Durbin? Senator Durbin. Judge Mukasey, thank you for being here. Thanks for your service on the court and your willingness to have your name submitted for the Attorney General's position. Thanks to your family and friends, some of whom have been friends of mine for a period of time. I'm glad that they're with you today. Several weeks ago, you were kind enough to come by my office. We had a short time to have a conversation. You referred several times here to your learning curve in this process, and so the questions I'm about to ask may be attributable--your earlier responses may be attributable to learning curves, but I want to clarify and make sure I understand where you stand on several things we discussed in my office. One of the things which we talked a lot about was this issue of torture. You said at one point, ``There's a whole lot between pretty please and torture,'' and you suggested that coercive techniques short of torture were effective. I would like to ask you so that it's clear in my mind, will you now acknowledge that it is illegal and inconsistent with our values as a Nation to subject detainees to cruel, inhuman, and degrading treatment? Judge Mukasey. It is unlawful to subject detainees to cruel, inhuman, and degrading treatment, there is no doubt. I don't think that's inconsistent with what I said. Senator Durbin. And we talked about the McCain statute, which I co-sponsored and had a 90-9 vote in the Senate. I asked you about whether the McCain statute on torture would be controlling in certain circumstances, and you said at one point, there could be a point where the President's constitutional authority would override this statute. I would like some clarification on that, if you would, please. Judge Mukasey. OK. I don't recall the context in which I said that the President's authority could override a statute. I would be very surprised if that context were the McCain statute. There is some authority that the President has that is inherent in the President and that he has willy nilly. There have been statutes that Congress has passed that every President, since the time they were passed, has taken the view are unconstitutional in that they encroach on the President's power, the President's authority. The most notable one--at least to me the one that comes to mind--is the war powers resolution. We all know that it's there. We all know that every President, since the time it was passed, has taken the view that it is unconstitutional and will not be obeyed. Mercifully, we have never come to a test of that, and I hope we will never come to a test of that. What's happened is, each branch has understood that push can't come to shove on certain issues, that we have to try to work it out the way people work things out in a democratic society, such that not everybody gets everything they want, and sometimes both sides walk away saying, ``Could have beat them.'' But we don't have to find out who could have beaten whom. Senator Durbin. For the record, do you believe the McCain torture amendment or statute is an unconstitutional infringement on the power of the President? Judge Mukasey. I do not. Senator Durbin. I also asked you about Guantanamo. You referred to it with a colorful phrase. You referred to it as a ``fright wig'' used by critics of the administration, and defended Guantanamo on the grounds that detainees receive ``three hots and a cot, health care better than many Americans, and taxpayer-funded Korans''. That's what you said when we met. What I heard in response to your questions from Senator Kohl, is that that may not accurately characterize your feelings about Guantanamo. Judge Mukasey. My feelings about Guantanamo, a place which I have not visited--I have not visited it, but I have spoken to people who have, is--my feeling is pretty much what I told you in a rather pungent, conversational way. I don't think people are mistreated there. That is not to say that the problem of indefinite detention of a large number of people has not become a problem for us. It is a problem for us. It's an ongoing problem. We've got to get our hands around it and resolve it, and it's due, as I indicated before, in large measure to the fact that getting ownership of that problem is a difficult thing in government. I recognize that. Senator Durbin. I suppose this treatment is a matter of interpretation. If one is speaking of torture of the Guantanamo detainees, that is one category of mistreatment, for sure. Detention without due process may be another category of mistreatment that Senator Specter has addressed, along with Senator Leahy, on the issue of habeas corpus. Would you concede that holding these detainees without charges for years, and then in many cases releasing them without charges, is a form of mistreatment? Judge Mukasey. What one regards conversationally as mistreatment or not, I think, is probably in the eye of the beholder. Under Hamdi, it is lawful. Hamdi said, as far as I know, unequivocally, that it is lawful for the President to detain people, even Americans, captured on a field of battle indefinitely. That's not to say that, as a matter of policy, it's a wise thing to do, that it doesn't hurt us with allies on whom we rely for support in fighting the people we have to fight, and that it might not pay to carry forward a principle for the sake of carrying forward a principle when we wind up cutting our nose off to spite our face. Senator Durbin. I won't go any further, because I think your responses to Senator Kohl's questions were very clear. I think that's a matter of record, your position on Guantanamo. I'd like to ask you about the Office of Legal Counsel in the Department of Justice, currently being held by an interim appointment, Mr. Bradbury, who has been brought before this committee and pending before the Senate for some time now. I have a hold on his nomination because of his refusal to answer questions, to produce memos, even some most recently disclosed by the New York Times involving some things that he's said or done in that capacity. I would like to ask you, and I might also add one area that you're probably aware of, the Office of Professional Responsibility initiated an investigation into the Justice Department's offices relative to the NSA program. In an unprecedented move, President Bush personally denied security clearances to Justice Department investigators and blocked the investigation. Documents provided to the Senate Judiciary Committee suggest that the internal investigation was looking into whether that office, under Mr. Bradbury, engaged in misconduct while he was the acting head. I've sent a letter with Senators Kennedy and Feingold asking the President to allow the investigation to go forward, and yesterday sent another letter saying it's time to remove this interim appointment because this man is going nowhere unless there's much more complete disclosure. Do you agree that it would be inappropriate for the Senate to confirm a Justice Department nominee who's under investigation by the Office of Professional Responsibility? Judge Mukasey. I don't know the investigation. I have not heard of the investigation by OPR to which you refer. I know there was an OIG investigation. I know of an OIG investigation with regard to national security letters and the conclusions that it drew. I was unaware of an OPR investigation. Senator Durbin. I don't want to catch you by surprise then. I'll send a followup set of questions to you, and one of them will be specifically, if you're confirmed, will you recommend to the President that the OPR investigation of the Justice Department's role in the NSA program be allowed to proceed? Judge Mukasey. That's not something I can answer in the abstract. I need to see what the investigation is about. Senator Durbin. I understand that. Judge Mukasey. I am aware, from my own experience, of how relatively easy it is to have an OPR investigation get under way because of some comment in an opinion or something of that sort. Senator Durbin. Let me send you that in writing and allow you to reflect on it and take a look at it before you give a complete response, out of fairness. I have very few minutes, and I wish I had much more time for this particular question. As the chief law enforcement officer in our Nation as Attorney General, you will have special responsibilities. One that continues to recur throughout your lifetime and mine, and even as recently as the last week or two, is the issue of race and justice in America. Clearly, we still have a major hurdle to overcome in establishing equality under the law. I'd like to ask you, if you were prepared, what initiative would you take to try to bring some closure to this issue which continues to tear America apart? Judge Mukasey. I can't, unless I indulge in a conceit that I don't really have, entertain the view that we're going to achieve closure in my lifetime, or even in my tenure. I believe that the Civil Rights Division of the Justice Department--I was trying to say this to Senator Feinstein when our time ran out, and I'm glad you asked about it because now I get the chance to continue. The Civil Rights Division is part of a movement and a process that is nothing less than genius in our politics, and that is that is that a stain on our history can start to be lightened, and hopefully at some point wiped out through the use of the law rather than in the streets and with arms, as it has been elsewhere. We have to make sure that bit of genius is preserved. I would make absolutely certain, and will make absolutely certain, that the Civil Rights Division, which celebrated its 50th anniversary this year, that people there understand that that's the mandate and that they don't forget it. Senator Durbin. I might say that that is one division which many of us believe has very low morale at this point, for a variety of reasons. I share your feeling about the important mission that we have, and I certainly hope that you will dedicate yourself to restoring morale and giving them the tools and support they need to restore their reputation. Judge Mukasey. Let me say just one thing. In the course of preparation for these hearings, I was staying near the Justice Department and happened to run into, on a couple of different days, lawyers from the Civil Rights Division lining up to get their coffee as I was lining up to get mine. And they were energized, they were focused. They seemed to be very happy and pleased in their task, and I think they are very much characteristic of the people within that division, the people within the Department, and those are the people who I think we're going to depend on. Senator Durbin. Perhaps it's a hopeful view on their part of your nomination. Thank you very much. Chairman Leahy. Thank you, Senator Durbin. Senator Graham? Senator Graham. Thank you, Mr. Chairman. Judge, I am sure you're going to make a fine Attorney General, and this is just the price you have to pay to talk to all of us. But I think it will be worth it, for you and the country at large. But you've had a lot of good questions on both sides of the aisle here about the role of the Congress, the courts, and the executive branch when we're at war. And I guess the first question I would like to ask you, since you're a New Yorker, do you consider the attacks of 9/11 a criminal act or an act of war? And you've got to pick between the two. Judge Mukasey. If I've got to pick between the two, they're an act of war. Senator Graham. Well, I agree with you, so you're in good standing with me already. See, I think we're at war. I think the law that one would apply, if you looked at this as a war, would be different than domestic criminal law. I've been a military lawyer for 25 years and I'm very proud of our military legal system. Because you apply the law of armed conflict doesn't mean you don't have due process. Now, when it comes to detention and interrogation of unlawful enemy combatants, here's some of the laws that I have made a list of that apply to the situation about how we detain and interrogate someone that we believe to be an unlawful enemy combatant. The Supreme Court, in the Hamdan case, said the Geneva Convention applies. Do you agree with that? That is now the law. I don't agree with the court's holding, but that's what they said. Judge Mukasey. If what they meant is that it applies to interrogation, then it clearly applies to interrogation. I-- Senator Graham. Judge, they said that Common Article 3 applied to the war on terror. Now, I disagree with that, but that is the law as I understand it. That Common Article 3 now applies to the war on terror. Judge Mukasey. If that's their reading on something other than a procedural basis-- Senator Graham. I think that's their--to go back. If you disagree with me you can tell me in writing, but I believe it does. Even though I wouldn't have decided it that way, that's the court. The Uniform Code of Military Justice is a congressional statute that regulates the conduct of the military vis-a-vis many things, but including how one treats a detainee. Are you familiar with that? Judge Mukasey. I know of that. Yes. Senator Graham. Do you think that's a lawful thing for Congress to do, to replace restrictions on our military when it comes to how they will treat somebody in their capture? Judge Mukasey. On our military? Senator Graham. Yes. Judge Mukasey. Yes. Senator Graham. It's a crime--OK. Good. So for the soldiers who may be watching this hearing, the Uniform Code of Military Justice regulates your conduct regarding someone that you may find or capture on the battlefield, and I think you're taught what to do there. I just wanted to acknowledge it, and that is a power that Congress has and we're going to have to live within that. The Military Commissions Act also regulates the detention, trying, and the treatment of enemy prisoners. That's a congressional enactment. Do you agree that that's a valid legal document? Judge Mukasey. Yes. Senator Graham. OK. The Detainee Treatment Act is an enactment by Congress that regulates--I think you've talked about it pretty well--what we can and can't do to someone we capture, cruel, inhumane, and degrading treatment. Do you consider that a valid source of law? Judge Mukasey. Yes. Senator Graham. OK. We have many international treaties that regulate our conduct because we're signatories to those treaties. Do you think it's incumbent upon us to live up to those treaty obligations? Judge Mukasey. I think it's incumbent upon us to live up to them. The question of whether they're self-executing or not is a very delicate question and I'm-- Senator Graham. Fair enough. The only point I'm trying to make is that we've had a fight that's been unnecessary for far too long between the Congress and the administration over what roles we play. I am convinced that we're only going to win this war if we act in concert to the best of our ability. I really applaud your testimony earlier when you said that America is at its strongest, not only from a legal point of view but from just an effective point of view, when all three branches are on the same sheet of music. Now, here's where I part from some of my colleagues about what the law requires of the United States: would you advise the President of the United States to allow unlawful enemy combatants to have habeas rights, to grant them habeas corpus rights at Guantanamo Bay? Judge Mukasey. I would not advise the President to grant rights beyond those that they already have, which include, as I read it, eventually, an appeal that is, certainly on an appellate level, more substantial. Senator Graham. Right. The big issue for us as a country is, who should determine the status of a potential enemy combatant? It is my view that, under the Law of Armed Conflict, under Geneva Convention Article 5, that is a power reserved to the military. A habeas petition would allow the potential enemy combatant to take their case to a Federal court of their choosing and the power to determine the status would be given to a Federal judge, not to our military, and I object to that. How long have you been a Federal judge? Judge Mukasey. I was a Federal judge for 18 years and a bit. Almost 19 years, actually. Senator Graham. My concern is that if we allowed every enemy combatant to have a full-blown habeas trial, we would be giving Al Qaeda and other groups that fall into the designation more rights than the Germans and Japanese, and that we would be creating chaos for our country in the war on terror. I would read a quote here from Justice Jackson in the Eisentrager case. Are you familiar with that at all? Judge Mukasey. Yes. Senator Graham. He said, ``It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he's ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home, nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion, highly comforting to enemies of the United States.'' Do you associate yourself with that concern? Judge Mukasey. Yes, I do. Senator Graham. Now, as I understand the Military Commission Act, every detainee at Guantanamo Bay will have access to Federal court. Is that your understanding? Judge Mukasey. Eventually. After the c-cert process is completed. Senator Graham. And the DC Circuit Court of Appeals will be able to look at two things: whether or not the evidence justifies the finding by the military of a preponderance that the person is, in fact, an enemy combatant; and they will also look at whether or not the procedures in question are constitutional. Is that your understanding of the law? Judge Mukasey. It is. Senator Graham. And that's the Vizmuller case, is that correct? Judge Mukasey. I believe so. Senator Graham. I have proposed for many years now, and I will reassert this idea, that one way to make this c-cert process better would be to provide military legal counsel to unlawful enemy combatants. How does that idea strike you? Judge Mukasey. I don't know what the process is now. I certainly--I mean, I said when--in the Padilla case that once you conceded that somebody had the right to file a habeas petition, there was no practicable way, particularly in that case, for them to do it other than through a lawyer. Senator Graham. One of the practical effects of an enemy combatant determination is that there could be a de facto light sentence, because this is a war without a definable end. Do you agree with that? Judge Mukasey. Yes. Senator Graham. So we need to come up with a process that's a bit of a hybrid of the traditional Law of Armed Conflict. Judge Mukasey. Yes. Senator Graham. I've also suggested in the past, and will suggest again in the future, that the tribunals in question, the combat status tribunals, be managed by a military judge. Do you have a problem with that? Judge Mukasey. I do not. Senator Graham. OK. Well, we'll be talking much further in depth about these issues because they're new, they're novel, and they're important. I would end with this, Mr. Chairman. I am often asked about, why do you want people to have lawyers who will cut our heads off, and why do we not waterboard people to get information to make us safe? Because at a certain level, Americans understand that the people we're fighting have absolutely no boundaries, and some of them believe the law is a nicety and is a weakness. I believe that the law is one of the strongest things we have in our arsenal against our enemy. Do you agree with that statement? Judge Mukasey. I do. Senator Graham. And if you want to throw everything that America has against the enemy, the best thing we could throw at the enemy is a process that the world would want to emulate and be proud of. Do you agree with that? Judge Mukasey. I do. Senator Graham. Wouldn't it be nice to show Sunnis, Shi'as and all those who have grudges and seek revenge that there's a better way, and there's no better way for America to lead the world when it comes to the war on terror than to take an enemy who has done us terrible harm and treat them in line with our values, give them lawyers when they would give us none, have a process where a civilian court could review the military work product, and let the world know that whatever happened to the enemy combatant wasn't a result of religious prejudice, anger, or revenge, but was a result of due process of law. Don't you think that's the best way to fight this war? Judge Mukasey. I do. I'm reluctant to add a footnote, but I have to. Senator Graham. Please. Judge Mukasey. And that is that so long as we don't compromise our ability to gather intelligence as we do that. Senator Graham. And it's my understanding that every one of the provisions I just outlined about what happens to a detainee in our charge, that you support that the law be applied, that when we capture someone, that we do have to live within the law that applies to the detainee's treatment. Correct? Judge Mukasey. Yes. Senator Graham. Now, Sheik Muhammad, I was at his combat status review tribunal, there's allegations that he may have been waterboarded. For about an hour and a half, he spoke about his involvement in 9/11 and other acts of terrorism without one person touching him, so I have no doubt that he did what he said he did. But if there was evidence obtained through waterboarding, would you be comfortable with that evidence being used in a military trial? Judge Mukasey. I don't know what's involved in waterboarding. I would be uncomfortable with any evidence being used in a trial that's been coerced. So, I'm-- Senator Graham. And one of the reasons you'd be uncomfortable is because what we set in motion could come back to haunt us. There was a proposal last year--and I will end on this thought--that in our military commission system it would be OK for the prosecutor to hand a document or a piece of evidence to the jury marked ``classified'' to be considered on innocence or guilt and never shared with the accused because of national security concerns. My fear of that procedure would be one day that maybe one of our guys or gals would be caught in Iran, trying to figure out what the Iranians are up to and that there would be a trial conducted in Iran where the Iranian judge would receive a document from the Iranian prosecutor marked ``classified'', never shared with the American accused. The person would be found guilty, sent to the death chamber, and we would lose the right to object to that proceeding. The point I'm trying to make is, what we do now on our watch can come back to affect us in other wars. Do you agree with that? Judge Mukasey. I agree that it can. Yes. Senator Graham. You're in a unique position, in a unique time in American history, to make sure that we balance our national security interests against the values that make us stronger than our enemy, and I have every confidence you will do a good job. Thank you. Judge Mukasey. Thank you. Chairman Leahy. If I might just use the prerogative of the chair, I just want to make sure I fully understand something. You said that you would not want to compromise our ability to gather intelligence. You're not suggesting, are you, that we compromise our ability to gather intelligence if we exclude torture? Judge Mukasey. No. The question concerned providing counsel, and there's often a question about the timing of that. People gathering intelligence need time to talk to somebody, to use all the techniques that need to be used to gather intelligence, and to the timing. Chairman Leahy. And we speak about, if we had somebody who was a serial murderer, a U.S. citizen committed a series of heinous crimes and would obviously pose a danger to the population was brought before you as a judge and said, we have a confession, we got it after we tortured the person for 3 days, you wouldn't allow that confession. Judge Mukasey. Correct. It's out. Chairman Leahy. Thank you. Senator Whitehouse? Senator Whitehouse. Thank you, Mr. Chairman. First, let me just take a moment to associate myself with the several propositions that Senator Graham just enunciated regarding the value of the rule of law as a force for good and for strength on the part of our country and the world, and his remarks regarding a judicial system that the rest of the world would wish to emulate and be proud of. That was very well said. Second, I'd like to recognize Director Freeh, who is here, who I had the honor of working with when I was the U.S. Attorney for Rhode Island. He was the Director of the FBI, and the Federal Bureau of Investigation, under his watch, did some really exemplary work in Rhode Island. If I may, I will take a sentimental moment to reflect on the accomplishments of Dennis Aiken, who led a remarkable undercover investigation into municipal political corruption and is shortly to retire. George Rosenberger, who led a very effective investigation into a criminal gang organization that was probably better covered by wire tap and other surveillance than some major Hollywood productions. He was exceptional. He has just retired. And Special Agent John Truslow, who did a spectacular job of making a really precedent-setting environmental case, and shortly thereafter passed away from brain cancer. I raised these names not only because Director Freeh is here, but because they also represent, along with so many other people who you will shortly, with luck and approval of this committee and the Senate, be supervising and in charge of within the structure of the Department of Justice. And I have to tell you, I'm worried about the Department of Justice. It is an institution that is very significant in American life, and I think it has sustained significant damage. I'm not convinced that simply replacing the person at the top, although necessary, is sufficient to cure the problems that I see. I wanted to discuss some of these issues with you, Judge Mukasey. First, just a completely open-ended question, but I would like to get you to say a few words for the record about what you consider the role of the U.S. Department of Justice to be in this country and what its posture should be to the American people. Judge Mukasey. The role of the U.S. Department of Justice is to uphold the rule of law. This is a country that defines itself--I think it's the only country in the world that defines itself--by a written Constitution, the supreme law of the land, and nothing else. We don't define ourselves by blood, or territory, or a particular history. We define ourselves by the rule of law. So, the Department of Justice is central to this country's definition of itself. I don't mean to put myself at the center of this. As I said in my introductory statement, this isn't about me. It's about the Department of Justice. That is, to me, its role. Senator Whitehouse. And what should the American people be able to look to it for? Judge Mukasey. They should be able to look to it for the constant, impartial, principled application of the law. Senator Whitehouse. The Department of Justice is an institution. It is an organization. It is a bureaucracy. It has rules. It has regulations. It has structure. It has traditions. In my view, many of those structures, traditions, practices have been developed over many years by people who work in that Department and who see it as you do, as safeguards to help assure that the decisionmaking that takes place in the Department of Justice is protected from political interference, personal animosity, other improper motivations. As much as I think there has been a failure of leadership at the Department of Justice and a rot from the top, as I said, I don't think replacing leadership alone is necessarily enough, because my sense is that there are structural issues that need to be set right. I think of things like the rule that lasted for many years, that limitation between the--conversation between the White House and the Department of Justice over pending investigations would be strictly limited, which was taken apart by two separate memos in the previous administration of the Department of Justice. I think about the longstanding policy that investigations would not be announced shortly before elections where they'd be likely to influence the outcome of an election, a restriction that was recently removed from the manual of the Department of Justice. I think about the independent appointment of U.S. Attorneys as men and women from their local communities who get advice and consent of the Senate and who are not fired, except for cause, as a structural protection that helps the Department in a kind of internal check-and-balance mode. I think of the role of career employees as a sort of steadying influence on the Department of Justice, and I think of, even in the book by Mr. Goldsmith that Senator Schumer mentioned, he discussed, just within the OLC component of the Department of Justice, the ``norms and practices'' that had developed. My question to you, sir, is what will you do to inquire into what norms, and practices, and protocols, and rules, and regulations need to be restored, need to be brought back into service to perform the function that they were set up to, which is to provide those protections for the Department of Justice in the exercise of its duties? Judge Mukasey. To the extent that I've done any management, including management of the court that I served on--which I recognize was, compared to the management that I'm about to undertake, a sandbox. I acknowledge that. I'll bring that out on direct--my style has been a hands-on style. I'm not talking about micromanagement, I'm talking about taking responsibility for decisions and making myself aware of what was going on in the organization that I was nominally the head of so that I didn't get surprises. I will do the same thing in the Department. I will talk to the people in the Department. There is such a thing as the Attorney General's Advisory Committee, which, as you know because you were a U.S. Attorney, is a body of U.S. Attorneys drawn from all over the country on a regional basis who do, or should--and will if I'm confirmed--meet regularly with the Attorney General so that the Attorney General understands what is going on in those offices, what their problems are, and can do something to help them out and to maintain uniformity of standards. I will talk to not only the Assistant Attorneys General at the head of each of the divisions within the Department, but also the people within their units. I want to hear not only what the person at the top is saying, but what the people below are saying so that I can figure out whether decisions are being properly made, and if necessary, tweak them a bit. I believe that I should have confidence in Assistant Attorneys General who were appointed to head each unit, and I will. But they're not going to be the exclusive source of information for what's going on. I am also going to talk to people who have served in the Justice Department in the past, people I know, some people I don't know. Senator Whitehouse. I would-- Judge Mukasey. And finally, I'm going to talk to, as I told Chairman Leahy when I met with him, this body and the members of it on a regular basis. Your collective experience with the Justice Department is way greater than mine, and would exceed mine if I served from now until I'm cold. So, I would be foolhardy to abandon that kind of resource, and I won't. Senator Whitehouse. I appreciate that you have said that, and I will be very interested in pursuing that process because I think that when we spoke earlier--by the way, I appreciate not only the time you spent with me, but the time you spent with all of my colleagues. You have reached out to the Senators in a very forthcoming fashion and I'm grateful to you for that. In the course of our discussion, I used the example of a ship's captain who has a fire on board or who hits a rock, and once you've got the fire out or stopped the water coming in, the very first thing that you do is a damage assessment. I would urge you to take the discussion that we have just had and go forward with a really fairly formal damage assessment using all of the tools that you have just indicated you were willing to use and see what needs to be put right. In that regard, two specific things I'd like to ask you about. One, is there were memoranda that widely opened the Department of Justice to contact about ongoing investigations from the White House and other officials that is counter to very recent traditions documented in letters between the previous Attorneys General and previous White House counsels. Senator Feinstein again discovered that the manual had been rewritten to take out the provisions discouraging the announcement of investigations at a time when they'd likely influence elections. There may be hundreds of other such matters, but those are two that, in the one minute I have left with you, I'd like you to touch on. Judge Mukasey. The question of contact of people within the Department about cases is something I've had occasion to address in meetings, beginning with Senator Schumer and continuing to other meetings as well. There is a very small list of people who can be contacted by anybody who is an elected official or who purports to speak for an elected official about a case. The only proper response by anybody else who's contacted is to make that person aware of the people that they can properly contact and end the conversation. That's going to be the standard that will govern, and I will do that. I will make that known and that will be the policy, and that will be the rule. Senator Whitehouse. And ``elected official'' includes the President? Judge Mukasey. Most emphatically, it includes the President. Senator Whitehouse. Very good. And with respect to the manual regarding the disclosure or announcement of investigations immediately before elections? Judge Mukasey. I think it is obvious that the closer you get to an election when you have a politically sensitive investigation, the less and less can be the justification for announcing it, unless there is some overriding need to go forward, such as a lapse of the statute of limitations or something of that sort. But other than that, that window keeps closing. Everyone involved in an investigation has to be sensitive to the possibility that announcing an investigation or a prosecution can influence the outcome of an election, and that that is not what investigations are supposed to be for, or prosecutions are supposed to be for. Senator Whitehouse. Thank you, sir. Mr. Chairman? Chairman Leahy. Thank you. We'll take about a 5-minute break and then come back. Probably a 10-minute break, then come back. Thank you. Judge Mukasey. Thank you. [Whereupon, at 4:06 p.m. the hearing went off the record.] AFTER RECESS [4:20 p.m.] Chairman Leahy. Thank you. Judge, thank you very much. And, I must say, your family are the most patient people. I was talking with Judge Freeh, Louie Freeh, a few minutes ago during this time that we were--his patience and all your support is here. Senator Cardin? Speaking of patient people, Senator Cardin of Maryland. Senator Cardin. Well, thank you very much, Mr. Chairman. Judge, the good news might be that I might be the last person to question this round. We'll see whether other members show up. But, first, I want to thank you. I want to thank your family for your willingness to serve our country. These are difficult times and we very much appreciate your willingness to step forward. And I must tell you, I've been very impressed by the direct answers that you've given to very important questions. When you and I met, I talked about the independence of the Department of Justice and the Attorney General and, I must tell you, I'm very impressed by your answers today. I think they are pretty clear and I think we need that and I think it will go a long way to the morale within the Department of Justice. I want to return to the Civil Rights Division. It seemed like that got tacked on as the end of two rounds of questions, but I want to spend a little time on it with you, because I think it's very, very important. I am concerned about what's happening within the Civil Rights Division. This is the 50th anniversary of the Voting Rights Act, in which the Civil Rights Division was created, and it has a proud tradition of fighting to enforce antidiscrimination laws passed by Congress in the areas of voting rights or civil rights or housing, elections, employment, so many areas that the division has been active over the last 50 years. I usually judge how a company or an employer does by the record, the facts. If a company tells me that they support diversity and open opportunity, if we look at their employment practices and see few minorities, I question that. So in the Civil Rights Division, I am extremely concerned about the lack of types of cases that have been brought and the type of cases that have been brought over the last 6 to 7 years. There are very few cases that have been brought to help minorities as far as their rights to vote and there have been very few disparate cases brought in employment and in housing compared to previous administrations. So I do want to give you a chance to tell us your commitment to making the Civil Rights Division the priority it needs to be, and it starts, first, with the Assistant Attorney General. That position is vacant and I would like to know your game plan for filling that office. I must tell you, one more point and then I'll give you a chance to respond. It seems to me that we should have somebody in the Civil Rights Division that has experience in civil rights law. You wouldn't put somebody at the Antitrust Division that didn't know the antitrust laws. You wouldn't put somebody in the Criminal Division that didn't know criminal law. You need somebody that has a background in civil rights and someone who is respected among the advocacy community. I hope this will be a priority and I hope you will give us--maybe shed some light as to how you plan to proceed with the Civil Rights Division. Judge Mukasey. I spoke briefly to the current head of the Civil Rights Division. I spoke briefly, also, to a woman named Grace Chung Becker, who is in the Civil Rights Division in a senior position, and impressed me, during our, admittedly, brief conversation, with her familiarity not only with the law, but what, in fact, the division is doing and I--she's a person who inspired, in my meeting with her, a great deal of confidence. I'm not, as you know, the nominating authority for doing this, but I was very well impressed with her and I would hope that someone of her caliber, if there's to be a change at the top in the Civil Rights Division, would step forward and undertake the leadership of that department. Senator Cardin. My expectation is that the President is going to rely heavily on your views on many of these decisions. There's a lot of openings at key positions within the Department of Justice, many that require confirmation by this committee, and I expect the President is going to be relying heavily on your recommendations for many of these appointments. I would feel a little more comfortable just to hear your priorities for the Civil Rights Division. I think that's an area that requires the Attorney General to spend some time in understanding the importance and letting it be known to the Department of Justice the importance of that division. Judge Mukasey. The priorities of the Civil Rights Division are both the historic and the current. Historic, equal protection is a principal goal and a principal mandate of that department. More recently, prosecution of hate crimes has become, sadly, much a priority and, regrettably, when you have one of those crimes, other adult people get it into their minds to do the same and you get an outcropping and a proliferation of that sort of thing, and we've seen some of that, although I think it's being tamped down gradually. And the prosecution of hate crimes is something that the Civil Rights Division is very actively involved in and has to continue to be actively involved in. Senator Cardin. Well, since you mentioned hate crimes, I'm glad you did, because I think the number of episodes in this country has increased dramatically, including my own State, where we had the newest episode at the University of Maryland and there's been throughout the country recently, it seems like, a lot of new episodes that are very disturbing. There have been hate crimes that involve not only race, but religion, ethnic background, and sexual orientation. I'm glad to hear of your interest in having the Department of Justice be aggressive in that area. I hope that they will be. We have a bill working its way through Congress to try to strengthen that law and I would encourage you to take a look at it, because it works in conjunction with State governments and local governments, because I think Department of Justice can assist in local prosecutions in regards to hate crimes. And I would hope that you--I'm glad you mentioned and, I can tell you, you'll have partners here in Congress encouraging you to be as aggressive as possible. Of course, I think that's one of the most important things we can state, as a nation, is to not tolerate any forms of hate crimes. Let me talk about election law for a moment, if I might. This is, I guess, a typical example of my concern about the Civil Rights Division. The Civil Rights Division traditionally has worked to enfranchise, to provide more opportunities for individuals to vote, to remove obstacles. Yet, in 2002, there was a major shift, when it looks like the Department of Justice Civil Rights Division was aimed at more of trying to prevent fraud than it was to remove obstacles to voter participation. And it reached, I think, the low point with the sign-off on the Georgia Voter ID. Even though the Secretary of State of Georgia could give us no examples of people using false identification or false persons to vote, Georgia moved forward with the voter identification. The Civil Rights Division signed off on it, against the advice of the career attorneys, signed off on it. The courts ultimately decided that it would not go forward, it violated the law, and it would work to disenfranchise particularly minority voters and those who are homeless, those who are of lower income, from being able to participate and vote. So I guess my question to you is, will your priority and your instructions to the Civil Rights Division be the traditional role of the Department of Justice in trying to remove obstacles to particularly minorities being able to vote or will it be more to try to do the Georgia type of voter ID laws? Judge Mukasey. Respectfully, I don't think it's an either/ or proposition. I think that voter enfranchisement, voter empowerment, opening up the vote and opening up access to the vote and preventing people who shouldn't vote from voting are essentially two sides of the same coin. That coin is a very valuable one. It's the value of the vote. I guess one of the joyful duties I had as a judge was swearing in new citizens and a big part of the talk that I gave, the brief talk that I gave to them afterwards, always involved their obligation to inform themselves and to vote. Nobody who votes wants to see his or her vote diluted by the vote of someone who is not entitled to vote. But people who want to vote, who are authorized to vote and should vote, have to be--have to have access to that and everything has to be done to keep that open. Senator Cardin. Do you agree with the court decision in Georgia that said that the voter ID was the ``modern day poll tax'' and that it would not be allowed to go forward with in Georgia? Judge Mukasey. I don't know whether that-- Senator Cardin. I think that's a direct quote from the judge. Judge Mukasey. I think if a means of identification is made available and accessible and every step is taken that allows people who have a right to vote to get access to that, to be informed about its availability, then to say that it's the modern day equivalent of the poll tax seems to be a little bit over the top. Senator Cardin. If you're a homeless person, if you're a person with a disability, if you're in the immigrant community, these ID cards are very difficult and sometimes offensive. Judge Mukasey. If they're difficult, then that difficulty has to be overcome and a way has to be found to get people with disabilities--to make those cards available to the people with disabilities. If they're homebound, have people go to their homes, if necessary. I'm not saying that those cards should be difficult to get or have. Senator Cardin. I guess my point would be that I would certainly want the Civil Rights Division looking at the balancing between making sure that only those who are qualified to vote vote, but to try to get the largest possible participation in our election process. And if we put our energy into trying to weed out the few that maybe are committing fraud and, as a result, we end up with a huge number who are disenfranchised, that shouldn't be what the Department of Justice is doing. I hope you agree with that. Judge Mukasey. I certainly do. Senator Cardin. Thank you. Appreciate that. Let me just mention, very quickly, we had some problems-- there's some new problems developing in the election procedures, where candidates and parties are using an effort to disenfranchise voters as a way to win elections. We saw that with misinformation sent out in the most recent elections concerning voting dates, giving the wrong dates to voters, to tell minority community--targeted to minority communities that if you have unpaid parking tickets, you'll be arrested if you try to vote, if you haven't paid your taxes, you'll be arrested, things like that that are aimed at minority communities to suppress their votes. I hope that you will show interest in trying to figure out a strategy where we can combat those types of practices. There's legislation moving through Congress that Senator Obama, Senator Schumer and myself have cosponsored. I hope that you would take a look at that. Judge Mukasey. I certainly will. I certainly will. I mean, that's flat-out fraud and that's pernicious fraud. Senator Cardin. Thank you. Thank you, Mr. Chairman. Chairman Leahy. Thank you. Thank you very much. And we will--I think you're probably going to be getting a lot more questions on these areas of voters and how that is set up, especially as we go into next year. I agree with what you said about telling people who are new citizens, who have just been sworn in, the right to vote. I found that--I've been privileged to be in many of those ceremonies when Federal judges in my State have sworn people in. This is the most eager thing, they can vote. You hear that from everybody. My grandparents, when they immigrated to this country from Italy, they told me that one of the most exciting things, they could go in and vote. Senator Sessions? I'm sorry. That did not come out of your time, I assure. Senator Sessions. Thank you, Mr. Chairman. I think it's been a very good day, indeed, Mr. Chairman, that you and Senator Schumer and others feel confident in supporting this nominee. I think it is important, at this point in history, Judge, that we have an Attorney General that people on both sides of the aisle can support and have confidence in. You've earned that, I think, over a lifetime. You seem to have the gifts and graces, at this important time, to do the job. I think, having been in the Department of Justice for 15 years, and nothing I've done I've been more proud of than working with that fine team of people I had the honor to work with, I think it is time for a steady hand, a professional. I think it's critical and one of the things you're going to have to do, and you've already felt, from the questions you've received, is to bring some clarity out of the confusion of national security issues. I mean, we are quite confused about that. I think the public is confused about it and I think we've got to get that clarified. I hope that will be one of the legacies that your tenure will allow you to accomplish. I've said repeatedly that the Attorney General has got to say no to the President if he wants to do something, just like a good corporate lawyer has to tell the CEO sometimes, ``We can't do it that way, Mr. CEO'' or ``Mr. President. You can do it this way, but you can't do it that way.'' And then you've got to be able to articulate and defend the legitimate actions of your President, the head of the executive branch, and I'm not sure we've done that very well. And so things have gotten pretty confusing. Do you feel that is a responsibility of yours and do you feel that, at this present time, the President's popularity numbers are not high, Congress has just changed hands, and people are beating up the administration in every way, right and left, do you feel an obligation and do you feel that you're ready to give us honest, straight answers and to provide a good defense for the legitimate prerogatives of the executive branch? Judge Mukasey. I do, and I particularly agree with your statement that we need to clarify. We need to be clear about what it is we're doing and why it is we're doing it. People need to understand that and that case has to be made. Senator Sessions. Well, you're a man of good judgment and clear thinking, by all accounts. You have broad experience, integrity. I believe Senator Schumer said you were a man of the law. I like that phrase. I think that's what you need to be. And you've certainly had great experience. So I think that you can make those--help those who are placing their lives at risk for us this very day all over the world in hostile lands in order to execute policies that we sent them to execute, that they don't need to be denied wrongfully the intelligence and support they need to be successful, that the American people are entitled to a vigorous and effective defense against terrorism and people who would attack innocent men and women and children, and that requires intelligence and hard work, and some of these issues are tough. But we have a lot of legitimate powers and I hope that you will be effective in helping us articulate that so that we can be safer. Judge Mukasey. If I'm confirmed, I'm going to do my best. Senator Sessions. Thank you. I agree, I think, with Senator Cardin that assembling a topflight staff is going to be a top priority of yours. You're going to have to work hard at that. I believe you can get those people. I think it'll be easier for you than your predecessor to attract the topflight people and, as someone who's been a part of the department, I know a lot of those deputies and associates are critical to success, and I hope that you will do that. And don't hesitate to criticize or stand up to the Congress and some of the legislation that gets passed or gets promoted. I remember, after 9/11, we had the FISA Act and the PATRIOT Act and there was no disagreement that it was a mistake to have created a wall between the FBI and CIA. There was no disagreement that the law that prohibited our intelligence officials from negotiating and talking with or developing relations with people who have had bad reputations and had done bad things was a bad idea, and we changed that. And I just say that to say they passed those bills in an effort to improve civil liberties and it ended up to not be necessary. It ended up to be a big mistake and may well have contributed to 9/11. So I'll ask you, will you be willing to tell us if we're trying to push something through here that's in error? Judge Mukasey. I am not a bashful person and I'm not going to become a bashful person if I'm confirmed. I will speak up when I think I have to. Senator Sessions. Well, I was actively engaged in the immigration debate this summer and last year. We had a remarkable national debate. The matter had been bubbling for about 2 years and I think the American people spoke clearly. Their will is very clear. They want a lawful system of immigration. They want to be compassionate, they want to do a lot of things, and we have different agreements about some things, but one of the things that they're committed to is creating a lawful system of immigration. Would you agree that's a good goal for America? Judge Mukasey. I do. Senator Sessions. I believe the American people would like to maybe hear you say something about your commitment to that. I say that because there's a great deal of cynicism. For 40 years, no President and no Attorney General has given a high priority to enforcing our immigration laws. We arrested, last year, a million people attempting to enter the country illegally. Can you share with us and place at ease those who feel strongly about this, as a chief law enforcement officer, your willingness to take the steps necessary to be effective? Judge Mukasey. I hope I can. This is, as has been said many times, a nation of immigrants. Franklin Roosevelt once sent a letter to the DAR, began with the salutation, ``My Fellow Immigrants,'' and my father was an immigrant to this country. This country has been made great through the contribution of immigrants. In fact, the immigration problem that we have, our border problem, is an aspect of how successful we've been. Other countries have border problems, we have border problems. Generally, theirs involve people trying to get out. Ours involve people trying to get in. We need to control that. We need to control it for a wide variety of reasons, including maintaining our national security, and we can't have a system in which the only sanction that results from an attempt to come into this country illegally is that you get to try it again. That's the kind of catch-and-release program that we've had an it's brought us trouble. When we met, you described to me a program or an initiative that was being carried out, I think, in Del Rio, is it, that had been successful in the bringing of some misdemeanor prosecutions against people who are unlawful entrants. I think that's something we need to try to look at and followup if we have the resources. I recognize this is a question of allocation of resources and I'm not talking about filling up the jails with people who are crossing the border, if we can't do that, but I think we need to try to investigate the possibility of bringing to bear some sanctions so that the only result of coming in illegally is not that you get to try it again, because, otherwise, we're just going to buy ourselves more and more of what we've had, which is not satisfactory. Senator Sessions. I think you said that truly. We have seen, in two areas of the border, where misdemeanor prosecutions have been brought for illegal entry and they are those offenses, that, in one area, a 50 percent decline in entry and, another area, 70 percent decline. We've passed an amendment that I offered yesterday or the day before that was accepted that would allow us to expand that program. Would you commit to examining that program and, if it works, like perhaps the Broken Windows program that worked so well in New York, start with those little things and maybe the whole system can be turned around in ways we can't anticipate today, would you look at that had? Judge Mukasey. I will commit to looking at it hard. I should recognize that this is not exclusively a matter within the control of the Justice Department. The Department of Homeland Security has an important voice. Luckily, I know Secretary Chertoff from another movie, as they say, go back a ways, so I can talk to him comfortably about that. Senator Sessions. Well, I do feel like there are a lot of things that can be done and one of them is to create an impression, a correct impression that our borders are no longer open, and that we are serious about it and even misdemeanor prosecutions can be effective. And I think the squeegee guys in the Broken Windows are sort of a comparative example there of how to restore law and it starts oftentimes with not just the biggest cases, but with smaller cases. You're probably aware that Federal law requires the deportation of convicted criminal aliens, those who are here legally or illegally, but are convicted of serious crimes. Do you support the enforcement of that law? Judge Mukasey. Yes, I do. Senator Sessions. It's not being effectively enforced now. Department of Homeland Security Inspector General says that at least half of those that are serving time in prisons today will not be removed according to the law. Attorney General Gonzales admitted there was a problem in July in this committee. He said, ``The level of cooperation between DHS and DOJ is not what it should be.'' So will you take a leadership role to see if you can confront this issue and make sure that we are effectively identifying those who either committed--I'm not talking about entry crimes. I'm talking about violent crimes, drug dealing and the like once they've been in the country. Judge Mukasey. I will certainly take an active role in it. I think there's a third party to that conversation and that's the country to which they have to be deported, and I can understand that some of those countries may not be eager to receive alumni of our prison system. But that's something we're going to have to overcome. Senator Sessions. Well, you know, that is true, but that is a matter that can be overcome if we have the will to overcome it, I believe. I know Senator Specter raised a question one time of, well, maybe we should stop entries from those countries if they don't agree to take them back. You have to send the clear message that we're serious about it. On the question of voting rights--my time is up, Mr. Chairman--I do think that--I hope that you will not ignore the requirements of the Voting Rights section that fraud be prosecuted, also. I trust you will not ignore that responsibility. Judge Mukasey. I will not ignore it. Senator Sessions. Thank you, sir. Thank you, Mr. Chairman. Chairman Leahy. Thank you. Well, I think, one, I will say, Judge, I've been pleased to see you engage with Senators from both sides of the aisle. I appreciate the succinctness of your answers, with the clarity of them. I think that we have a--as I told you before, we have a Department of Justice which has been badly shaken by a prolonged crisis of leadership and I think these hearings can begin to repair that. A number of your answers have indicated your independence, your agreement that political influence has no place in law enforcement. Any of us who have had the privilege of serving in law enforcement know that that has to be the case. And I think we agree the Department of Justice is far too important an institution to remain dysfunctional and want to get it back to its law enforcement mission. Tomorrow we will start and Senator Specter and I will have questions. There will be no opening statements from anybody. I want to go back to the price of executive privilege, how you're going to test such claims, how you resolve them. I've got a couple other matters that I want to followup that I did not have time to this morning, and I would urge Senators who wish to ask questions to be here. I thank all the Senators who have been here today. After we finish that, we'll then have a panel of experts who are going to testify on some of the issues we've had here. But you've had a long day, Judge. Your family has had a long day. At least you had the adrenaline and the ability of being there answering the questions. They have to sit there and think, ``Is he really going to say that?'' No. So I appreciate you being here. We'll stand in recess until tomorrow. [Whereupon, at 4:50 p.m., the hearing was adjourned.] NOMINATION OF MICHAEL B. MUKASEY, OF NEW YORK, TO BE ATTORNEY GENERAL OF THE UNITED STATES ---------- THURSDAY, OCTOBER 18, 2007 U.S. Senate, Committee on the Judiciary, Washington, D.C. The Committee met, pursuant to notice, at 10:07 a.m., in room SH-216, Hart Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Leahy, Kohl, Feinstein, Feingold, Schumer, Durbin, Cardin, Whitehouse, Specter, Hatch, Grassley, Kyl, Sessions, Graham, Cornyn, Brownback, and Coburn. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman Leahy. Good morning. ``Good morning,'' he said subtly, for the sake of the photographers. Judge, at one of these hearings, before we start, I should mention that there was a screen on the front here. Without thinking one time at one of these hearings, I started kicking on the screen. I thought it was solid. I realized, to my embarrassment, I was kicking the back of one of the photographers. Within 15 minutes, the word had gotten around, and my son-in-law, Lawrence Jackson, who is an AP photojournalist, sends me an e-mail saying, ``You really shouldn't be that rough with them. They are very nice people.'' And so I am being careful not to do that today. I would repeat what I said yesterday. I do not think it would be necessary, but obviously, if there are any demonstrations either for or against any position of Judge Mukasey, Senator Specter, myself, or anybody else in here, the demonstrators will be removed. We want everybody to have a chance to have these hearings. So if I might start, what we will do today, I will ask a series of questions, Senator Specter will, and then we will go back and forth in the usual order. [The prepared statement of Senator Leahy appears as a submission for the record.] Judge, I want to go back to your last answer to me yesterday, and you and I discussed this a little bit outside. You said a U.S. Attorney could only refer a contempt citation of Congress to a grand jury as required by law if he or she believed reliance on the President's executive privilege claim was unreasonable. I have some trouble with that. I do not think you rule on claims of privilege when they are raised by seeing whether they are reasonable but whether they are valid, so let us talk a little bit about this. If Congress were to refer a contempt citation--and there is a real probability there will be some as a result of the U.S. Attorney scandal--you are indicating that the U.S. Attorney would undertake an independent analysis and assess the claim of privilege in determining whether to bring the matter before a grand jury. Is that right? Judge Mukasey. Well, let me flesh out a little bit what I understand the process to be and to have been and maybe put a little bit of flesh on the bones of my answer. As I understand it, when the White House get a subpoena, they refer it to the Department of Justice, as, in fact, happened here because I was shown the letter from Paul Clement relating to the assertion of the privilege. If the White House then, relying on that letter--the President, since he is the only person who owns the privilege, if he relying on the Justice Department asserts the privilege and there is nonetheless a contempt citation, we are in the position where the Department of Justice would have to prosecute someone who followed the advice that originated with the Department of Justice. I am told that there are not one but two opinions of the Office of Legal Counsel, one of them from Ted Olson and the other from a man I know and whose name I can picture--and I cannot come up with it now--who served in the Clinton administration, who I referred to yesterday. I am sure I will think of it after I leave here. But, in any event, there are two OLC opinions saying that that would not be appropriate, and-- Chairman Leahy. What would not be appropriate? Judge Mukasey. That for the U.S. Attorney to prosecute someone for a contempt based on reliance on an opinion letter that originated in the Department of Justice would not be appropriate. It would be different if a letter from the Justice Department said, ``You can assert the privilege as to A, B, and C, you cannot as to D, E, and F,'' and the President were to say, ``I do not care. I am going to assert it as to all of them.'' That would be a different story. Chairman Leahy. But in some instances, I think we are talking about some things that are somewhat ex post facto. If you have--after the people are called, there had been no assertion of executive privilege before. Now they get called about their actions. They were involved in actions in which nobody had raised any question of executive privilege, but all of a sudden when they are called before Congress under subpoena, now somebody starts claiming executive privilege, don't you have something a little bit different? Isn't it somewhat difficult to claim you are acting under an assertion of executive privilege when that issue comes up after the fact? Judge Mukasey. I think the basis for the assertion has to be evaluated, and that basis often includes reliance on opinions of the Justice Department because it is hard to envision that the White House--although it is not impossible to envision, I would think that the White House would seek the view of the Justice Department before it took any position on executive privilege. If somebody went off on a tear without consulting the Department of Justice, I agree that would present a different set of facts. Chairman Leahy. Well, you have a bit of a problem here because some of these claims were extremely broad. You had people cannot testify, saying, ``I never talked to the President. I never sent stuff to the President. The President never asked me any questions, never interacted with me. But I am claiming executive privilege.'' Now, that seems kind of a broad claim. Judge Mukasey. As you describe it, it sounds broad. But I think the executive privilege covers communications other than those directly to and from the President. There is a whole range of interests that have to be protected by executive privilege that include setting aside matters of national security, setting aside matters of current litigation. There are-- Chairman Leahy. Well, what-- Judge Mukasey. I am sorry. Chairman Leahy. Well, what if the President broke the law and somebody wanted to look into it, and he said, ``Wait a minute, executive privilege. We can't have anybody talk about what I did breaking the law because I claim executive privilege'' ? Judge Mukasey. I think part of the content of what it is in a communication has to be considered. There is a weighing process that goes on. Chairman Leahy. Well, last July, when the House Judiciary Committee was considering a contempt citation for a former White House official, somebody in the administration said a U.S. Attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case, and the U.S. Attorney would not be permitted to argue against the legal opinion the Justice Department provided. Now, the law requires them to bring contempt charges to a grand jury. The White House says you cannot bring it. What do you do in a case like that? Judge Mukasey. I fall back on two things. First of all, there are two OLC opinions--and the name of that other person I could not think of before is Walter Dellinger--that say that when the person asserting the privilege--when the President in the assertion of the privilege is relying on a Justice Department opinion, that it simply cannot be appropriate for the same Department that offered the opinion then to turn around and prosecute somebody who followed it. Chairman Leahy. But if the U.S. Attorney does not follow the statute, which is very clear, how does the claim of executive privilege get evaluated? How does the conflict with the Congress get resolved? Judge Mukasey. I think--I have not read the text of the statute recently. I think it requires the convening of a grand jury. I do not know whether it goes so far as to say--I do not think it goes so far as to say that a charge shall be a filed or that an indictment shall be requested. But I do not want to start parsing words delicately-- Chairman Leahy. Well, Judge, I will spell this out a little bit more clearly with you, but I would like your answer back in writing before this matter is brought up before the--before the nomination is brought up before the Committee. And, last, Congress has clearly legislated in areas--we have done it in the area of surveillance with the FISA law, something we have amended repeatedly at the request of various administrations. If it has been legislated and stated very clearly what must be done, if you operate outside of that, whether it is with a Presidential authorization or anything else, wouldn't that be illegal? Judge Mukasey. That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the President to defend the country. Chairman Leahy. Where does the President get that authority? I am thinking of the Jackson opinion and others. Where does he get the authority if it is very clearly enunciated what he can do, a law that he has signed, very clearly enunciated? I mean, the President can say, ``Well, this authority, I am going to order the FBI to go in and raid 25 houses because somebody told me they think someone is there. We are not going to wait for courts. We are not going to do anything else. There is no urgency. But we just kind of like to do that.'' Judge Mukasey. ``We kind of like to do that'' is not any kind of legitimate assertion of authority. And I recognize that you have posited the case that way for a reason. But the statute, regardless of its clarity, cannot change the Constitution. That has been true since the prize cases, and it was true before that. Chairman Leahy. Can a President authorize illegal conduct? Can a President put somebody above the law by authorizing illegal conduct? Judge Mukasey. The only way for me to respond to that in the abstract is to say that if by illegal you mean contrary to a statute, but within the authority of the President to defend the country, the President is not putting somebody above the law; the President is putting somebody within the law. Can the President put somebody above the law? No. The President does not stand above the law. But the law emphatically includes the Constitution. It starts with the Constitution. Chairman Leahy. We will go back to this. I am troubled by your answer. I see a loophole big enough to drive a truck through, and so we will go back to it. I do not think--well, we will go back to it. Senator Specter, I am sorry. I have gone over. Senator Specter. Thank you, Mr. Chairman. Picking up on this issue, you testified yesterday that the President could not order torture because it would violate a statute. In light of your answer a moment ago, would you say that is because the President does not have Article II power to protect the country to authorize torture? Judge Mukasey. The President cannot authorize torture because torture is barred both by statute and by the Constitution. And I would be happy to walk back through that if you wish. Senator Specter. Well, where in the Constitution is torture barred? Judge Mukasey. It is barred by the Fifth, the 14th, and the Eighth Amendments. The Fifth and the 14th Amendments bar conduct that shocks the conscience. They have been so interpreted. Senator Specter. Fine. I see your rationale. Let me move on the same issue to the Foreign Intelligence Surveillance Act, FISA. That provides that the exclusive procedure for obtaining a wiretap is to go and get a warrant on probable cause. Was the President permitted to violate FISA because of his Article II powers? Or was his violation of FISA a violation of law? Judge Mukasey. I am not sure what violation it is we are talking about. If we are talking about the Terrorist Surveillance Program, I think I said yesterday-- Senator Specter. We are talking about the Terrorist Surveillance Program, which has warrantless wiretaps, contrasted with FISA, which says the exclusive procedure to have a wiretap is to get a warrant, and what the President did violates FISA. Is it justifiable on his Article II powers because--well, that is the question. Judge Mukasey. As I understand it, the President believed at the time and still believes that FISA was not the only applicable statute, that he was acting with authorization under the Authorization for the Use of Military Force. I understand that there is more than one view on that. He gave a long-- Senator Specter. Judge Mukasey, I do not think anybody-- Judge Mukasey. I am sorry? Senator Specter.--ever really seriously contended that our resolution of September 14th authorizing the use of force encompassed a violation of FISA. But let me move on. There are so many issues to cover that I want to move into another area. I think the record is fairly clear as to your views on Article II power and the statute and what you said on torture. Before proceeding to some other issues, I want to make a comment about Steve Bradbury, who is the Acting Assistant Attorney General, Office of Legal Counsel. There has been a request--some members of the Committee, some Senators have asked that he be withdrawn from that position. I believe he is very competent, and I believe he ought to be confirmed. And people disagree with things he has done, but those acts on Mr. Bradbury's part have been carrying out the President's orders. And I think he has no choice on that, and we have been into that in some detail with Attorney General Gonzales when we had an issue about having the Office of Professional Responsibility see if the Terrorist Surveillance Program was properly authorized under the law. And Attorney General Gonzales said that was the President's decision, put it squarely on the President, and I think that is what has happened with Steve Bradbury. In June and July, there was considerable discussion about the telephone companies' responsibilities, and the Committee, when I chaired it, was moving for subpoenas, and Vice President Cheney intervened and talked to members of the Committee on the Republican side without talking to me, and I want to put in the record a letter I sent to the Vice President on June 7, 2006, and his reply to me on June 8, 2006. Chairman Leahy. Without objection, that will be part of the record. Senator Specter. Because they are relevant to my comments about Steve Bradbury. Following those letters, Mr. Bradbury and my staff and I had very extensive conversations about legislation which I had introduced to put the Terrorist Surveillance Program under the Foreign Intelligence Surveillance Court, and I found him to be very competent and very professional and very direct and very able--candidly, unusually so for someone in the Department of Justice. And that led to a direct meeting I had with President Bush, who agreed to support the legislation, which Mr. Bradbury and my staff and--Mr. Bradbury, others in the administration, and my staff and I had worked out. And I thought Steve Bradbury was A-plus, and I have had dealings with him since on a lot of very complex legal issues, and I think he ought to be confirmed. He certainly ought not to be ousted. Now on to the issue of reporter's privilege. There is legislation pending which would give the reporters a qualified privilege. You and I discussed this informally. There have been many subpoenas issued in both State and Federal courts, and the Hearst Corporation summarized them as 97, the majority--since 1991, the majority of those since the year 2000, many celebrated cases where people went to jail. The Barry Bonds case was celebrated as to a contempt citation against reporters. The No. 1 case was the case of Judith Miller, who was kept in jail for 85 days for reasons still inexplicable to me. She was asked about the source of a leak on the outing of Valerie Plame. At the time there was no national security issue because Ms. Plame did not qualify to make it a national security issue, and it was known who the source was: Rich Armitage, the Deputy Secretary of State. And yet she was kept in jail for 85 days, which led me to push the legislation, and we are pushing it still. The question I want to ask you--and I understand that you are not in a position to make a final judgment as you would if you were Attorney General. But this matter will be coming up. We are pushing it for floor action. And the question is: There is an exception for national security, and it is a matter of a judge to weigh whether the public interest in disclosure outweighs or does not outweigh the national security interest. And obviously there are issues on national security that are very complex, but in our system it is up to judges, Federal judges, to make decisions. They deal with a lot of very complex issues in many, many contexts, high technical matters. And I would like to hear your views on the subject and beyond that to ask you to study in detail as to whether that is a sensible accommodation because of the importance of news gathering, which has in the history of our country exposed corruption, misfeasance, malfeasance, waste, fraud, and abuse. In the line of the famous Jefferson statement, if I had to choose Government without newspapers or newspapers without Government, he would take newspapers without Government. But we intend to push this, and we would like to reach an accommodation that satisfies the administration on the national security issue. What do you think? Judge Mukasey. First of all, I have my own history of having represented reporters, of having asserted the New York shield law successfully, and as you put it, it sounds almost innocuous. But I have some anxiety when it comes to national security cases because although Federal judges--and I used to be one of those, too, and, therefore, I have high regard for them. First of all, it is not always possible to show precisely what the outcome is going to be from disclosure of confidential information. The instance I mentioned yesterday involving serving a list of unindicted co-conspirators was one example. Another example is a piece of testimony that was given in the Ramzi Yousef case that was tried before my colleague, Judge Duffy, where somebody testified to somebody having delivered a cell phone battery to someone else. That piece of testimony disclosed to al Qaeda that a line of communication of theirs had been compromised, and, in fact, it was a line of communication that our Government was monitoring and from which it had gotten enormously valuable intelligence. That line of communication shut down within days of that testimony. And I do not know what we lost. Nobody knows what we lost. But we probably lost something enormously valuable. What I am saying is that it is an imponderable. Second, although Federal judges decide complex and technical issues, when it comes to weighing intelligence, that is beyond simply complexity. They do not have available to them not only the training but the resources that people involved in, for example, the Department of National Intelligence--the Director of National Intelligence has available to him to weigh issues like that. They rely on their experience, their law clerks, and what is submitted to them, and their own common sense. That is enough in the mine run of cases because the worst thing that could happen is they will make a mistake, it will go up on appeal, and as often happened to me, they will get reversed. The stakes are much higher when it comes to national security. And, often, even a showing of what the danger would be from the disclosure is itself as bad as the disclosure or worse. Then you get to the entirely separate question of who is a journalist and who is not. We talked about that a little bit yesterday. So for those reasons, I have got misgivings about it. I do not--the case that you described--there is an old saying that hard cases make bad law. The reverse may very well be true, also. Bad cases can make hard law. And I do not want this to be a situation where a bad case makes a hard law. Senator Specter. Mr. Chairman, just one final comment. I understand the problem you articulate, but I do not think that we can stop short and say that just an assertion by the Federal Government of national security ends the matter. That is just too much authority in too blanket a way. So I would ask that you help us search for a way to accommodate the concerns you express, but at the same time give a shield to a reporter unless there is some very good reason not to. Thank you, Mr. Chairman. Chairman Leahy. Thank you. Before I go to Senator Feinstein, if I might, there is one thing that bothered me in your answer--well, a number of things that bothered me, but basically when I was asking about FISA and you were saying, well, the President to protect the country can--it sounded almost like you were saying he could ignore the law or could authorize others to, but yet you said in answer to Senator Specter, well, of course, the President would not be allowed to authorize torture because that is against the law. If you use the same reasoning, why couldn't he say, ``I am doing this, as a national security matter, to protect the country, so I am going to authorize torture'' ? Why couldn't he do that? Judge Mukasey. Torture violates not only the law; it violates the Constitution. Chairman Leahy. Well, so does a search and seizure without a warrant. I mean, the Constitution has pretty clear constitutional provisions on search and seizure. Judge Mukasey. The Fourth Amendment says that we are all protected against unreasonable searches. It then goes on to speak about what would authorize the issuance of a warrant and what would not. They are-- Chairman Leahy. Probable cause supported by oath or affirmation, particularly describing--and so on. Judge Mukasey. Right. Those are two separate clauses, and there is--we all, for example, go to the airport, and we are all searched without a warrant before we get on an airplane. Chairman Leahy. We also consent to it. We have a choice of doing that or not getting on the plane. I am talking about when somebody goes into my e-mails, goes into my telephone, and it turns out thousands of times it was done for a period of several years until the press reported it. Then they came back and said, ``Gosh, I guess we ought to amend the law to allow this,'' but they ignored a very specific law which said how you go about doing that. I mean, how can the President say, ``Well, that is national security so I will authorize you to clearly violate a statute and authorize everybody from telephone companies on through, I will authorize you to clearly violate a statute--why couldn't he do the same thing on torture? Judge Mukasey. I think we have to distinguish very carefully between--I try to distinguish very carefully between monitoring a conversation, telephone content, and telephone records. Telephone records have never been protected by the Fourth Amendment because they are in the hands of a third party. If they weren't, you couldn't-- Chairman Leahy. Conversations are-- Judge Mukasey. Of course they are. You couldn't argue with your telephone company over the bill. Chairman Leahy. No, but the conversations are, and the conversations, people's lives could be--if they are taken improperly, used improperly, their lives could be ruined. Their jobs could be lost and so on. I think we will come back to this, Judge, and we should think about this a little bit, because I do not think you can say when you have a very clear statute that the President can suddenly step above the law or authorize others to break the law, which is what it appears you are saying, and in other cases like torture you cannot do it even though we find out now that they have broken the law, the torture law, supposedly having been told they could do it by the White House. Senator Feinstein? Senator Feinstein. Thank you very much, Mr. Chairman. My discussion, I hope you will take in its full form as a discussion on an important issue. This afternoon, Judge, the Intelligence Committee will be marking up a FISA bill. I can tell you it is a very big bill. At this stage it is a bipartisan bill. Yesterday the House bill fell apart on the floor of the House. I am absolutely convinced the only way we can legislate in this area is on a bipartisan basis, and much to the commendation of the Chairman and the Vice Chairman of the Intelligence Committee in the Senate, this bill so far is bipartisan. That is good news. My second point is the so-called Terrorist Surveillance Program could have been within the law from the very beginning. I have never understood why it was not within the law. The formulation of an 11-judge Foreign Intelligence Surveillance Court prepared to sit 24/7 is a very important thing in our Nation, and I think the big guarantee that we give our people is the guarantee of law to the greatest extent we possibly can, and that law is there. I took some time when I went on the Intelligence Committee some years back to read the Church Report that was put out after 1978 and the passage of the FISA bill. And the Church Report outlines a major historic trend by this Nation in our 200-year history to essentially take foreign intelligence, exploit the loopholes, and use it for political intelligence gathering domestically. And there is example after example after examples, through a whole host of Democratic and Republican administrations, which points out, to me at least, the real need for a Foreign Intelligence Surveillance Act that we can say to the American people is the exclusive authority. Now, yesterday we began this discussion. Unfortunately, I did not have the time. Senator Feingold followed up, and let me quote you on these points: ``...in the area between where that statutory authority left off and where his authority left off under the Constitution in Judge Bell's view--and it is one I share--I think he would have''--meaning the President--``the authority to act. I think it is important''--and you went into the Fourth Amendment then. ``But there is very scant, if any, case law on the question of whether intelligence gathering, as distinct from gathering of evidence for criminal cases, is something that may very well be much more flexible than matters relating to the gathering of intelligence.'' In terms of evidence that is legislative intent, there is not scant evidence. There is very fulsome evidence, I believe, that every effort was made in 1978, and even since then, to provide that electronic surveillance be under law--the setting up of the court, the report language. You mentioned the AUMF today. I do not believe in terms of the legislative history of the AUMF--and I was part of or sat through some of these discussions--there was any intent to allow the President to wiretap outside of the law. It was never discussed. It never came up. The full focus was whether to confine this to Iraq or more broadly. And I think I sent last night part--page 101 of the report on the FISA bill, and I want to read a couple of sections to you and then ask you to comment in view of what I have just said. ``When a President takes measures incompatible with the express or implied will of the Congress, his power''--and we know this--``is at the lowest ebb, for then he can rely only on his own constitutional power minus any constitutional power of Congress. Courts can sustain exclusive Presidential control in such cases only by disabling the Congress for acting upon the subject.'' It then goes on that, ``Despite any inherent power of the President to authorize warrantless electronic surveillances, in the absence of legislation, by this bill and Chapter 119 of Title 18, Congress will have legislated with regard to electronic surveillance in the United States. That legislation with its procedures and safeguards''--FISA Court, 11 judges, 24/7--``prohibit the President, notwithstanding any inherent powers, from violating the terms of that legislation.'' Then the report language goes on to describe how the bill essentially repealed those provisions which state that nothing in those relevant chapters shall limit the constitutional power of the President. They repealed that section, expressly repealed it. And then they go on to say, ``In short, Congress simply left Presidential powers where it found them. The Foreign Intelligence Surveillance Act, however, does not simply leave Presidential powers where it finds them. To the contrary, this bill would substitute a clear legislative authorization pursuant to statutory not constitutional standards. Thus, it is appropriate to repeal this section which otherwise would suggest that perhaps the statutory standard was not the exclusive authorization for the surveillance included therein.'' See, I do not think the President, based on the legislative history, has--unless there is something that expressly grants it to him. The AUMF did not expressly grant nor was it discussed, nor, I believe, was it contemplated that he would use that as authority to go outside of FISA. And, again, I conclude with this: He did not have to go outside of FISA. Subsequently, that became clear and the program is within FISA now. So what bothers me is that you yesterday sustained that gap where I believe that gap has been closed, and hopefully will be further closed by what we do in an intelligence bill, which will then, after Intelligence, come to this Committee. Could you respond? Judge Mukasey. All I can say is I share your hope, and I share the view that if the President can act within FISA, then that is where he has to act. I think based on the history that you read, the only--and I do not want to look for areas of disagreement. I was told not to look for areas of disagreement. Senator Feinstein. Well, I think this is a conversation worthwhile having, so you go ahead. Judge Mukasey. OK. The only place where we might conceivably have a disagreement--and I am not certain we do there either--is in the view that, notwithstanding the Congress saying specifically we are restricting the President's--what might otherwise be the President's authority under the Constitution, that that can actually restrict the President's authority under the Constitution. Whether a past Congress said we acknowledge the President's--that the President might have authority that lies beyond the statute, to repeal that cannot change the constitutional reality. If, however, it was always possible for the President to act within FISA, then there is no need for that authority. And, for example, under FISA as it stands now, as I understand it, there are procedures that are approved by the Foreign Intelligence Surveillance Court that the President is then free to use without each time having to go for a separate warrant because that is simply unfeasible, regardless of how many judges we have got. And that is obviously the way to go. That is the way I want to go. Senator Feinstein. Exactly. My point is this: the administration did not try to do that, before the heat got very hot and then they went and did it. And that is the reason why FISA really should be the exclusive authority for this kind of public action, because it is all hidden action. And, therefore, the Fourth Amendment does come into play, I think, too. So perhaps, you know, the best I can say for your argument--and it is wonderful for me because I am not a lawyer so I can say that--is that you have two budding amendments, perhaps. But when you listed the AUMF, I think the history counters the AUMF. That is all I wanted to make. Thank you. Thank you, Mr. Chairman. Chairman Leahy. The AUMF is the weakest reed this White House could ever hold onto, and it does not stand up. I think the fact that they are bringing so much pressure on the Intelligence Committee--and if the press is to be believed, the Intelligence Committee is about to cave on this--and bringing pressure on this Committee to immunize past illegal conduct, it is because they know that it was illegal conduct, and that there is no saving grace for the President to say, well, I was acting with authority. Otherwise, there would not be so much pressure on us to immunize illegal conduct by either people acting within our Government or within the private industry. Senator Kyl was here yesterday, and as it grew late in the day, he was willing to wait until today, and I appreciate that very much, Senator, because we were then able to wrap up, and I yield to you. Senator Kyl. Thank you very much, Mr. Chairman. With all due respect, let me suggest there is another way to read the President's strong interest in trying to get a good FISA reauthorization, a much more benign reason, that he believes that it is important to our national security that we be able to secure this intelligence information against terrorists, and with regard to the retroactive liability, that there could be a very chilling effect on the ability of telephone companies or others to cooperate with the Government if we do not protect them from potential suit. It does not have to be that the administration knew that its activities were illegal and, therefore, it has been working with us hard to get this legislation passed. In fact, I think that is a most uncharitable and incorrect assessment of the situation. I would like to agree with Senator Specter just a moment with regard to his comments about Steve Bradbury. I think Senator Specter said it well, and I just note those to you, Judge Mukasey. Also, with regard to the question of the reporter's shield law, you took a question on this yesterday and commented on what Senator Specter said. I would like to correct the record just with respect to one thing Senator Specter said, but agree with him that it will be important for us to be able to work with you, and I will ask you that question in just a moment. But from the Department of Justice's own report, the numbers demonstrate a decrease in the number of cases in which the Department has approved the issuance of subpoenas seeking confidential source information in recent years. Of the 19 source-related matters since 1991, only four have been approved since 2001. So this is hardly a situation in which, as was said, there are many cases where reporters have gone to jail. There are almost none. Very, very few. And the Department of Justice has clearly been very discreet in the kind of source- related matters that it has been seeking in recent years. We have all been seeking to reach that point that Senator Specter alluded to, the accommodation of national security interests, prosecution of criminal matters, as well as the free flow of information. And my question to you is: Since the legislation has come under the Judiciary Committee but with an agreement among us that we will continue to work on it, it would be very important to have your insights as well, and obviously the question is--you have already answered it to Senator Specter, but to reiterate your willingness to work with us as that legislation proceeds so that we can try to accommodate all of these interests in the most efficacious way. Judge Mukasey. I agree, and I think it bears some mention in connection with this subject that there are within the Department very elaborate procedures before anyone is permitted to subpoena a reporter. Some AUSA with a subpoena and a typewriter does not decide whether to subpoena a reporter. There are many levels of approval that have to be gotten--in Main Justice, not just in the Assistant's own office--before a subpoena can issue to a reporter. And it was my own view--and I do not know, obviously, all of the cases--that the system worked passably well up until now. But one thing about internal procedures is that if you need to change them, they are relatively easy to change. You can adjust the regulation. You can adjust the procedure. You can put more levels in. You can change standards. It is relatively easy to do. It becomes much harder when it is etched in stone in the form of legislation, and that is part of the reason for my uneasiness. Senator Kyl. I appreciate that. You know, Mr. Chairman, yesterday when Senator Lieberman introduced Judge Mukasey, he talked about a Contracts professor that loved to grill them on the law. I suspect that Judge Mukasey might have viewed the questioning by our colleagues as somewhat akin to that, and I think you have come through it with flying colors. I thought it would be interesting to just get back to the Department of Justice mission statement. We have been fairly far afield with a lot of different things here, and I found it interesting to review it, that your job, if you are Attorney General, is to enforce the law and defend the interests of the United States according to the law; ensure the public safety against threats, foreign and domestic; provide Federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans. And that is a mission statement I think we can all agree with. And in thinking about that mission statement--in other words, exactly what your job is and what you would be doing during the next year that we would be interested in with respect to our oversight--I found it interesting that the people who have worked with you in those various areas-- enforcing the law, providing leadership and preventing and controlling crime, seeking just punishment and so on--have been impressed with the way that you have executed your responsibilities, suggesting that in your position as Attorney General of the United States you would carry that same experience to the fulfillment of your responsibilities. Perhaps it has been read into the record already, but it bears repeating perhaps. Mary Jo White, the U.S. Attorney for the Southern District of New York from 1993 to 2002, commented that during the Sheik Rahman trial, you had 10 defendants on trial, controlled the courtroom very tightly. She said, ``He has dealt with some of the most complicated, novel issues that any judge will ever see. That is who he is--tough-minded, clear-eyed person. DOJ is very lucky to get him.'' And, of course, there have been so many other comments from others that have worked with you. I just thought it important to note that with respect to your actual responsibilities as opposed to some of the things that have been discussed in this hearing, your reputation fits in very tightly, it seems to me, with your responsibilities as Attorney General. And I am pleased that you have had that kind of support from the people with whom you have worked. I have discussed these things with you personally. I have listened to your testimony here, and it seems to me that you are extraordinarily well suited for this position, pretty much as well as anybody who has not served in the position before could be. And I just wanted to close by asking if you have any insights for us with respect to how you view your job. You have got roughly a year left, and the last year of an administration. There has been some tumult in the Department. There have been huge challenges coming from this threat of terrorism, in addition to all of the usual things the Department of Justice has to deal with, but to bring your experience to bear on it and basically speak directly to the American people about how you can take that experience and represent them in the Department of Justice as the chief law enforcement official of the country. Judge Mukasey. What you have described is a job that would humble somebody with twice my ability. The one great consolation that I have is, to go back to my opening statement, the people in the Department are the people who carry that responsibility. My job is to make sure that they have as few problems as possible and let them do their jobs. And they are enormously talented, dedicated people. I mentioned running into people on the coffee line. Two of those people were 30-year veterans of the Department. Thirty years. And there are thousands of them. That is what allows me to sleep at night when I say yes to wanting to do this job, because I am going to have available to me the kinds of people who are there. Yes, it is an awesome responsibility, but look at the people I have helping me or will have helping me if I am confirmed. Senator Kyl. I appreciate that. Thank you. Mr. Chairman, by the way, both relative to Senator Specter's comments and mine, I would like unanimous consent to insert in the record at this point a Washingtonpost.com piece dated Friday, October 12th, titled ``In Defense of the Office of Legal Counsel.'' Chairman Leahy. Without objection, it is so ordered. Senator Feingold? Senator Feingold. Thank you, Mr. Chairman. Judge, good morning. Judge Mukasey. Good morning. Senator Feingold. I know there has been a great deal of discussion this morning, which actually followed our conversation yesterday, about the effect of the FISA law and whether the President has the authority to violate that law. And I would just like to associate myself with Senator Feinstein's excellent description of congressional intent when passing FISA. And I must say that your answer to her appeared to be directly contrary to the Youngstown approach to Executive power, which you and I discussed in detail yesterday, and you appeared to accept as important and valid law. The Supreme Court has held that Executive power is affected very significantly by what Congress does, so it sounds like overnight you have gone from being agnostic, as you and I have gone back and forth since our first meeting on this question, to holding what is a rather disturbing view. You have said today that you believe the President may violate a statute if he is acting within his Article II authority. Now, that position, which I find alarming, makes it extremely important to know what you believe the exact scope of the President's Article II authority to be. So are you telling the Committee, Judge, that anytime the President is acting to safeguard the national security against a terrorist threat, he does not have to comply with statutes? Judge Mukasey. You have suggested that I have gone overnight from being an agnostic to being a heretic. And-- Senator Feingold. Explain why you have not. Judge Mukasey. I think all I am saying is that, obviously, I recognize the force of Justice Jackson's three-step approach, but I recognize also that each branch has its own sphere of authority that is exclusive to it. For example, just to take an example that has nothing to do with the subject under discussion immediately, you have the exclusive authority to vote me up or vote me down, for any reason or no reason. If I am displeased with the result and displeased with the reason, I could not validly go down the street to the courthouse and file a lawsuit and claim that I had been denied a right, even I got some judge who was willing to entertain the lawsuit and even if I prevailed. There are a lot of ways you could describe that outcome, but the rule of law is not one of them, because the authority belongs only to you. There are areas of Presidential authority. I also said that we are not dealing here with necessarily areas of black and white. I understand that, which is why it is very important that push not come to shove on these questions because the result can be not simply discord but disaster. Senator Feingold. Well, Judge, I will take your example. In the case of the Youngstown case, people did have the right to go down to a courtroom, and they did it, and they won. And Justice Jackson indicated a three-part test, which your analysis today I think renders essentially meaningless. So I believe that this is contradictory, and it does trouble me. And I have great respect for you. And I do believe, as Senator Schumer indicated yesterday, you have a similar opportunity to change the tenor of this administration in a way that Levi did in a prior era of this country. Let me just say with all respect that this area is perhaps the most important one where the repairing has to be done, getting away from this notion of ever expanding, infinite Article II power. And I would ask you to take that very seriously. Let me switch to a different topic. As you know, the decision whether to seek the Federal death penalty in any given case rests with the Attorney General alone. Attorney General Gonzales has been criticized for not being personally involved in that decisionmaking process. In one case, he apparently refused to speak personally with a U.S. Attorney about a case in which he ordered that the death penalty be sought over the U.S. Attorney's objections, and then he told this Committee that this was one of the reasons that that particular U.S. Attorney was fired. How personally involved would you be in decisions about whether to seek the Federal death penalty? Judge Mukasey. I am going to be personally involved, and I am going to review every such decision. I took sentencing seriously when I was a judge. I never had occasion to pass a death sentence, although I did preside over cases where that was at least a possibility at various points in the case. There is obviously no penalty that is analogous to the death penalty. There are other penalties, and there is that one. And that means that I am going to review every such case in excruciating detail. We have a system in place, as I understand it, that was put there I believe under Attorney General Janet Reno in which we have tried--I am already saying ``we,'' and that is presumptuous--in which the Department has tried to assure that the decision about whether to seek the death penalty or not seek the death penalty depends only on the underlying facts of the case, the history of the defendant, the acts involved, the seriousness of--obviously the seriousness is always ultimate, but the cruelty that accompanies a murder, and other indicia. Senator Feingold. Will you refuse to speak personally with a U.S. Attorney who disagrees with your decision and wants to discuss it with you? Judge Mukasey. That is a difficult question for the following reason: If there is a defendant in a jurisdiction where the United States Attorney wants to speak to me, then it may very well be that that defendant's crime is no better, that his background is no better than the background of a defendant in a jurisdiction where the United States Attorney, because in that jurisdiction they are more accustomed to or inured to or favorable to the death penalty, the United States Attorney does not feel he wants to intervene. The system was supposed to treat--the system that was created in the Department is supposed to treat those two people the same way. Senator Feingold. Well, why wouldn't you speak to the U.S. Attorney about this? You didn't specifically say that, but that was my question. Would you agree to at least discuss it with him? Judge Mukasey. I would want to have that United States Attorney's views made known to me. I do not want to be in a situation of succumbing, if you want to call it that, to a plea by a United States Attorney who does not want for good and conscientious reasons--and there are people who have good and conscientious reasons, and I recognize that--does not want to seek when the same case may be getting different treatment in another jurisdiction. Senator Feingold. Should the additional cost of pursuing the death penalty rather than a life sentence be a consideration? Judge Mukasey. There is a whole range of considerations. That is, I guess, one of them, but I-- Senator Feingold. All right. Let me move to another topic because I am running out--unless you feel you need to elaborate there. Judge Mukasey. No, I just do not want to create an incentive for--obviously, the most costly you make it, then the more the equation-- Senator Feingold. Fair enough. Fair enough. Judge, as is the case in every Federal agency of all three branches of Government, there are gay, lesbian, bisexual, and transgendered Americans serving honorably and effectively at the Department of Justice, and the Department sponsors commemorative events to recognize the contributions of various minority groups. But under Attorneys General Ashcroft and Gonzales, in contrast to Attorney General Reno, it has refused to do so for GLBT Americans. In addition, while DOJ Pride, an organization of GLBT employees, is permitted to use Department space to hold events, it is prohibited from advertising those events on public billboards in Department buildings, again, unlike other organizations for minority employees at the Department. Similarly, the Department refuses to recruit at job fairs aimed at GLBT attorneys, but sends recruiters to job fairs aimed at other minority groups. I am troubled by this. I suppose there is not much to be done about this administration's attitude toward gays and lesbians, but as Attorney General, you would have the power to end this shameful conduct. Will you stop the disparate treatment of gay and lesbian employees at DOJ? Judge Mukasey. I do not understand the reason for that treatment. When I was a district judge, I interviewed and hired without regard to any matter relating to the personal life of a prospective law clerk, any matter of that kind, and I see no reason why there should be any different standard at the Department. Senator Feingold. I will take that as saying that you will stop the disparate treatment of gay and lesbian employees at DOJ. Judge Mukasey. It sounds like I am going to. Senator Feingold. Pardon me? Judge Mukasey. It sounds like I am going to. Senator Feingold. Sounds good to me. Thank you, Mr. Chairman. Chairman Leahy. Thank you. Normally we would go to Senator Grassley next, but Senator Grassley has advised us that Senator Coburn, like most of us, has about five different places to be and is willing to yield his place now to Senator Coburn. So we will go to Senator Coburn, and the next Republican in line will be Senator Grassley. Senator Coburn. Thank you, Mr. Chairman, and thank you, Senator Grassley, for your consideration. Mr. Mukasey, Judge Mukasey, here is your quote: ``The Department faces challenges vastly different from those it faced when I was Assistant U.S. Attorney 35 years ago, but the principles that guide the Department remain the same: to pursue justice by enforcing the law with unswerving fidelity to the Constitution.'' You have answered throughout yesterday many questions in regard to that. I was one U.S. Senator who thought that the previous Attorney General should resign, not for the similar reasons that many of my colleagues did, but because of the management that I saw at the Department of Justice. What will you do to ensure that this quote and this axiom of loyalty to the Constitution before loyalty to any political appointment is carried out through the depths of the Justice Department? Judge Mukasey. Well, Dr. Coburn, I believe in a couple things. One is you lead by example. You do things that you want other people to do, and you do not ask people to do things you do not want to do yourself. That is one way. Another is to make certain that if there is any suggestion that there is any problem that would compromise a constitutional standard, is to get in it up to my elbows, or further, if necessary, and to stop it. I have pursued up until now hands-on management to the extent I have managed at all. And I recognize that I do not have a business degree and I have never managed anything like a 100,000-person agency with a $22 billion budget. Never done it. But I have had a hands-on management style, and I want to continue that. I want to consult with people not only in the immediate leadership but people from below that so that I understand what it is that is really going on and so that I am not caught by surprise. I do not like surprises. That is the way, I think, to make sure that the standards I try to articulate are maintained, and that is what I hope and plan to do if I am confirmed. Senator Coburn. Thank you. The Justice Department is unique in the Federal Government in that it is the only agency that is allowed a percentage of its unexpended balances at the end of the year to use discretion to enhance what they do, both in terms of IT and things. We allow the Justice Department to do that. We do not allow any other agency to do that. We recently passed a limitation on conferences in the Senate with specifics to certain groups that were unindicted co-conspirators and others, and real concern about the amount of money the Justice Department spends on conferences. I realize there have to be conferences. Can we have a commitment from you that you will approve the budget for conferences and that, in fact, that conferences will be exactly what is needed and not more, and not more frequent, and a real conservative action at looking at your fiduciary responsibility in terms of the budget of the Department to make sure that the dollars spent there are not wasted? Judge Mukasey. I emphatically agree with that. I did not attend many conferences when I was a judge. I attended the Judicial Conference because I was required by statute to do so. I am not a big fan of publicly funded get-togethers for the sake of getting together. Senator Coburn. OK. My final question, and then I will refer back and will not use all my time. I am concerned about morale in the Justice Department. There is no question some management decisions have affected that. We have impacted that by the controversies that, either real or otherwise, have put before it. What is your plan in this limited amount of time that you have to create a vision and a leadership plan that will bring the morale and the esprit de corps and the positive thinking back to the Justice Department? Judge Mukasey. I agree that perceptions about morale are going to be part of the landscape that I am going to face at the Justice Department. But I do not want by my words or my actions to create a self-fulfilling prophecy in which talk about bad morale creates bad morale. I think what contributed to and what accounted for the esprit de corps in the office that I served in 35 years ago was that we were doing exciting, worthwhile work that had no standard other than what served the public interest, and that excited and energized people and contributed to great esprit de corps. I want to help people to do that. I want to fill positions. I want to make it possible for people to do their jobs. That is what accounted for the esprit de corps in the office that I was in, and I think that is what promotes it in the Department. Senator Coburn. Thank you. I want to thank you for your commitment to take on this task for a very short period of time, and to just compliment you for being willing to sacrifice. You do not have to do this. You could do other things. And I think it is admirable, and it is one of the qualities of Americans that they will serve knowing that the positive benefits for you personally are not going to be great. Thank you. Thank you and I yield back. Senator Feinstein. [Presiding.] Senator Schumer? Senator Schumer. Thank you, Madam Chairperson, and thank you again, Judge Mukasey. Now, I know you care as much as anyone about rooting out public corruption. In fact, I note that when you were at the U.S. Attorney's Office, you ultimately headed up the Official Corruption Unit for a few years. Both you and I know that sometimes the mechanism for pursuing public corruption can itself become corrupted. And you and I both know that when political considerations get enmeshed in political cases, the public suffers and justice suffers. You have already given comforting answers about some things you would do in the future about making sure political actors and elected officials do not themselves corrupt investigations of corruption. So I want to ask you a few more questions along those lines. First, how would you react if it came to your attention that the White House Director of Political Affairs or a similar official had pushed the United States Attorney to pursue a case against a Democratic official? Judge Mukasey. How would I react? Senator Schumer. Yes. Judge Mukasey. I think a euphemistic description would be negatively. Senator Schumer. OK. I will be specific here. Would you confront the White House official? Judge Mukasey. I would first have a conversation with the United States Attorney involved and find out what it was that had been said or not said and what pressure had been brought or not brought. And if I thought that pressure was being brought, I would have a conversation with the White House official, and if necessary, with the President. Senator Schumer. Right. Well, that was my next question. Would you inform the President of the behavior? And you have answered that. What would you do to rectify the situation? Judge Mukasey. I would make absolutely certain that whatever the effect was of the pressure was undone, and how to do that obviously is going to vary on a case-by-case basis. But one way might very be to take over that investigation with someone from Main Justice who was not subject to that pressure. But that is a hypothetical. I recognize that and I do not want to--I would rather confront--I would rather not confront the issue. But if I have to confront it, I would rather confront the facts and not just a hypothetical. Senator Schumer. Sure. Understood. Well, let me go to a specific fact case, because there are troubling allegations from several quarters that such behavior did actually occur in the past. And so I want to talk not only prospectively but retroactively, retrospectively. In Alabama, there was a recent prosecution of a former Democratic Governor named Don Siegelman. Although he was ultimately convicted of several counts, there are serious allegations that his case was politically motivated and selectively prosecuted. A Republican lawyer from Alabama, Jill Simpson, has apparently sworn under oath that an Alabama political figure told her that Karl Rove pushed the Justice Department to bring political corruption charges against Mr. Siegelman. She also testified that the son of Alabama's current Governor told her that a Republican judge would ``hang Don Siegelman.'' It has also been suggested that when the case against Mr. Siegelman was faltering, this political pressure caused people at the Department to demand prosecutors ``take another look at everything.'' And there are other troubling allegations that are a matter of public record. Given what we have seen in the Justice Department, again, no smoking gun but a series of these types of issues--I have read about this. I do not know the specific facts, but it greatly troubles me. It greatly troubles me that perhaps, perhaps, perhaps, this case was politically brought. My chief counsel, who was a prosecutor in the U.S. Attorney's Office, the same one you served in, said, ``Well, he was convicted.'' But that does not really answer the question per se. So I am not accusing anyone of anything, and I do not know all the facts, but I would like you to learn the facts and report back. And so I am asking you--you know, you have demonstrated you are a no-nonsense public servant. As good as your intentions are, we cannot have a proper housecleaning without resolving lingering issues and doubts. In the spirit of making a fresh start and restoring public confidence that politics has been removed from the Department, I would ask you to personally look into the Siegelman matter and just report back to us what you find. Would you be willing to do that? Judge Mukasey. Well, I do not know what stage the Siegelman case is at. Senator Schumer. He is convicted. He is in prison. Judge Mukasey. I understand that. Is the case on appeal? Senator Schumer. I do not believe it is--yes, it still may be. But as you know, under Federal rules he is serving time in prison right now. Judge Mukasey. I understand that, but I think that it may very well be that the first cut at the facts that you have described and suggested ought to be had by the court. And it is not unheard of for there to be a motion in an appellate court to remand when facts come to the attention of lawyers after a case is tried that warrant hearing by the court that tried it. Senator Schumer. Not to interrupt you, I do not know the details of this, but I think that many of these facts came out after the trial and conviction at the district level and might not be admissible before the court of appeals. Judge Mukasey. What I am suggesting is maybe there ought to be a remand or a request for a remand. The reason I am hesitant to say, well, I am going to get into it and do something is that when a case is in the process, as this one is, I-- Senator Schumer. Let me rephrase the question. Would you take a look at it? If there is a possibility and the case is ongoing because of appeal, would you be willing, if after the appeal is completed, particularly if there is no remand, or it is not admissible, these new facts are not admissible, determined by that court, would you be willing to take a look at this? Judge Mukasey. I would certainly be willing to take a look at it. Senator Schumer. OK. Thank you. I have a brief amount of time left. I just have a couple of questions here about, again, disproportionate prosecution of Democrats. I am going to be quick here because my time is running out. Donald Shields from the University of Missouri and John Cragan from Illinois State University did a study of prosecutions. Again, we see this in the backdrop of what we have seen over the last few months and what we have learned through the Chairman's leadership on this investigation. The two professors of communication compiled a data base of 375 investigations and indictments of candidates and elected officials by U.S. Attorneys. The preliminary findings suggest that Democratic office holders and office seekers are investigated 7 times as often as Republican ones. Obviously, there may be the situation where there was 7 times as much corruption brought to the attention of the U.S. Attorney among Democrats, but if you believe bad people are sort of sprinkled throughout the political system rather evenly, that is not one that goes down easy or well. I would ask you to take a personal look at the study, see what you think, and if you thought it had some merit, undertake a study of your own to determine whether there is not improper or uneven treatment going on. Judge Mukasey. I will take a look at the study, and I also can tell you I believe that neither party has a monopoly on either virtue or vice. Senator Schumer. I would be interested, should you become Attorney General--and as you know, I hope you will be--that you report back to us in some way or another your view of that study. My time has expired. Chairman Leahy. [Presiding.] Senator Grassley? Senator Grassley. Thank you for the opportunity-- Chairman Leahy. Incidentally, and restart the clock, just so people will know the schedule. We will go until 12:30, and if all questions have not been asked, we will recess until 2 and then come back, just so that--is that satisfactory? Senator Specter. Yes, Mr. Chairman, I think that is a good idea. As I had commented to you earlier, there are a number of subjects and a great many matters pending before the Committee legislatively and on the executive privilege where we have subpoenas outstanding, and Judge Mukasey has been very cooperative and very helpful and very forthcoming, and I think that he is responding to our questions. But it is not a fast process, and they involve very complex subjects, and we have to take the time necessary, and it is longer than we like to keep you here, quite frankly, and it is longer than we like to stay here, quite frankly. As you see from the rotation around here, everybody has got--Senator Coburn, it was announced you had to be in only five places at one time. I am managing an appropriation bill that is supposed to be on the floor, but we will have to just rotate back and forth and cover these subjects, which, as I say, are important. Thank you for your cooperation, judge, and thank you, Mr. Chairman. Chairman Leahy. Senator Grassley, thank you. We will set the clock back. Senator Grassley. Thank you. Judge, I have one question about whistleblowers before I go back to where we left off yesterday, and we left off about that non-disclosure form. But why I emphasize, as I hope I told you in the privacy of our office, the need to worry about whistleblowers is because--you probably know this, but if you do not, you will soon find it out--there is a great deal of peer pressure to go along to get along within Government bureaucracy. And I do not mean just Justice. I mean Government generally, and I mean all levels of Government. Whistleblowers tend to be skunks at a picnic and are treated the same way. We have laws that protect them, and I want to make sure that at least within your jurisdiction you do what you can. So what initial actions would you personally take to abate any fears of retaliation against individuals who are critical of procedures, practices, or policies that do not guarantee or execute the primary mission or goals of the FBI within the Justice Department or the entire Justice Department? Judge Mukasey. I think I will tell people specifically and I will tell them in action that I am receptive to and supportive of anyone who can disclose any impropriety, whether it is in the way rules are applied or in the rules themselves, and who can help the Government stop impropriety and stop waste, and making that explicit and then acting on it I think are the only two ways to do it. Senator Grassley. I think you are very sincere, but let me tell you, one time I said to the President, you know, this President, that you ought to have a Rose Garden ceremony honoring whistleblowers, because for the most part they are patriotic people and just want Government to do what Government is supposed to do and point out things that are wrong. And I got some sort of a comment back about if he did that, every nut would come out of the woodwork, you know. So with that sort of an attitude at the highest level of Government, you know, it is very important that people a little lower down, as you are--not very low down but somewhat lower-- make sure that the spirit of the law is carried out as well as the law. Where I left off last week, I have learned that the FBI and the Justice Department Office of Inspector General have been using an overly broad non-disclosure form during administrative inquiries. This issue came to light recently in the course of the OIG's investigation into the FBI's misuse of National Security Letters. This form broadly states that no information may be, quote-unquote, released in any form to anyone, and indicates that if any portion of the information is released, quote-unquote, beyond this room then further investigation could result. This is not a threat to be taken lightly coming from the FBI particularly, but also from the Justice Department OIG. While non-disclosure agreements may be a necessary and important part of an internal investigation, executive branch employees must remain free to provide information to Congress. Section 820 of the Appropriations Act for the Department of Justice prohibits any non-disclosure policy form or agreement that does not contain specific disclaimers, ensuring that Congress is not cutoff from crucial information. I would like to have a copy of that statement put in the record, that non-disclosure statement put in the record at this point, Mr. Chairman. As you can see, it is plain that the form does not contain the disclaimers required under Section 820. As you know, the Justice Department's budget was authorized for fiscal year 2007 under a continuing resolution, so Section 820 remains in effect. But according to the Inspector General, the FBI has been routinely using this broad non-disclosure form during administrative hearings. One, if you are confirmed as Attorney General, will you conduct a review of non-disclosure agreements used by the Justice Department and subordinate agencies and ensure their compliance with 820 of the Appropriations Act of the Department of Justice as well as other Appropriations Acts in the future that might have similar provisions? And I guess it would seem to me that without this disclaimer, it is kind of a thumbing- the-nose attitude toward the Congress, I mean, like there is no respect for the law we pass. Judge Mukasey. Senator, part of the concern for the integrity of national security that I have had occasion to express this morning because I have been asked about it, the only way we respect legitimate claims about national security is if we do not promiscuously attach the phrase ``national security'' to anything that we would rather not discuss, that we would rather not have other people discuss. And so I think we have to be very careful in rationalizing non-disclosure obligations based on a claim, oh, this is national security. I also obviously believe, as I have said, that the oversight authority of this Committee is enormously important in helping the Department fulfill its role. So for those two reasons, I would be very, very critical of non-disclosure agreements and make sure that they are used only when it is necessary for them to be used and not simply as an everyday way of doing business. Senator Grassley. Well, I should accept your answer. It seems to me, though, that that information about Section 820 ought to be broadly reminded of everybody as part of a document. Let's go to the Office of Inspector General. As I have said so many times, oversight is very important. You cannot do it in Congress if we do not get some help. We obviously need in this regard strong Inspectors General to provide another independent assessment of operations within the executive branch. One, do you agree that independence is the hallmark of the Inspectors General's integrity and effectiveness? Judge Mukasey. I do. Senator Grassley. Please explain what kind of relationship you would intend to have with the Justice Department Inspector General Glenn Fine, assuming he stays on in that position, or whoever might succeed him, and describe what steps you will take to ensure that his office will function as an aggressive and independent check on the Department and its components. And I speak here particularly of the FBI, and I will get into something in just a minute on that, but not just the FBI. Judge Mukasey. I hope to have a cordial and effective relationship with him, as I would with any other officer in the Department. And he is a person--he in particular is a person of great experience. He has been at this for a long time. And his views get a lot of respect, and they are entitled to a lot of respect, and they are going to get a lot of respect from me. Senator Grassley. Earlier this year, the Office of Inspector General released an important report on the FBI's misuse of so-called exigent letters and National Security Letters. Some of the findings suggested that more inquiry was necessary in determining whether officials had knowingly approved FBI information requests containing false statements or improperly characterizing requests as emergencies to obtain records without legal process. At first, the OIG was going to merely allow the FBI to investigate itself. However, after this Committee had a hearing, the OIG decided to conduct further investigation jointly with the FBI Inspection Division. While this is better than having no role for the Inspector General, it seems that allowing the FBI to actively participate in an investigation of its own potential wrongdoing could undermine the credibility and public confidence in the final product by providing an opportunity for the FBI insiders to tamper with the investigation. One, do you believe conducting joint investigations with the entity under investigation is consistent with the principle of Inspector General independence? Judge Mukasey. I agree that having an agency investigate itself is generally not the optimum way to proceed. The one fact, as I understand it, that gives me pause here is that I believe that one of the preliminary conclusions--that among the preliminary conclusions reached by the Inspector General in his first report--and I understand this matter is still under investigation. But a preliminary conclusion was that there were no controls in place, there was no monitoring in place, and that that was in part what led to the abuse, where a form that originated in one place where there were grand juries sitting was then sent around and nobody bothered to read the form, they used it, and told people that they were to produce information for use you a grand jury when there was no grand jury, which is inexcusable, I agree; but that what happened was that when they saw that report, the FBI did, as I understand it, put controls in place and monitoring in place, and I think that given that that has been the response, that we ought to at least give those controls and that monitoring an opportunity to operate. And so their participation in the ongoing investigation is not perhaps as inappropriate as it might at first seem. Senator Grassley. OK. Well, I hope you are right, but I hope also you will try to do as much as you can in having the Inspector General just by himself do that work. Mr. Chairman, I do not think I will be back for a third round, and I will submit some questions on agricultural antitrust and things of that nature that I would appreciate some answers for. Thank you. Judge Mukasey. Thank you very much. Chairman Leahy. Thank you. We're going to go to Senator Durbin in just a moment. Before we do, just while Senator Grassley is still here, followup on the Inspector General. Right now, this is something totally unprecedented. I happen to support what he's doing. The Inspector General is reviewing the sworn testimony of your predecessor, because questions were raised by members of this committee that some of the answers were not truthful. He's also reviewing sworn testimony of others to determine whether they were truthful. Could I have your assurance that you will not in any way interfere with that review that he is doing? Judge Mukasey. You have that assurance. Chairman Leahy. Thank you. Senator Durbin? Senator Durbin. Thank you, Mr. Chairman. Several of our colleagues this morning have said a few words to Steven Bradbury, who's the interim, or acting head, of the Office of Legal Counsel. I would, without returning to yesterday's line of questioning, say that until it's clear in my mind why the investigation of Mr. Bradbury's conduct relative to the warrantless wire tap program by the Office of Professional Responsibility was not completed and was, in effect, preempted in an unprecedented way by the President refusing security clearances to the Office of Professional Responsibility, I will continue to hold his nomination and believe that serious questions about his fitness to serve remain, in my personal opnion. I would like to ask you, Judge Mukasey. We talked briefly yesterday about ongoing issues involving race in America. There is another issue which is troubling and is in the papers on a regular basis, and it's the issue of immigration. In my town, I'm fortunate to represent the city of Chicago. The chief of police has said to me that they have made a conscious decision to give confidentiality to witnesses and victims when it comes to their immigration status in the belief that this is the only way to encourage cooperation and the reduction of crime, particularly violent crime. Other cities have made that same decision--your city of New York, under Mayor Guiliani; cities like Minneapolis and Houston have reached similar conclusions. I would like to ask, since there's clearly a question to be raised here of policy, in that immigration laws are Federal in nature and the decisions are being made at the State and local level to have confidentiality agreements, which in the eyes of some suspend the enforcement of those Federal laws by local agencies, what is your position or opinion on these confidentiality agreements? Or I should say confidentiality statutes. Judge Mukasey. I wasn't aware that there were statutes. I thought these were simply matters of-- Senator Durbin. I think you're right. More a matter of policy. Judge Mukasey. Policy. Wholly apart from that, the governance of every political subdivision is the responsibility of the executive in that subdivision--the mayor of a city, Governor of a State--and they have to answer to their constituents for the safety, for the welfare of their locality. It seems to me they have to use their own good judgment as to what is necessary to protect that safety and welfare and they can't take a principle, which is that we don't want to tolerate unlawful immigration--we don't. We can't take a principle like that and go over a cliff with it. They can't say we're going to let this town be as lawless as it has to be because we are going to turn in anybody who comes in as a witness who is not properly here. We can't say that we're going to let children starve because their parents are not lawfully here. There has to be--there is a reality to be dealt with, and they are the people that have to deal with it. I am very sympathetic to that, and very much loathe to second guess them, and I won't second guess them as Attorney General. I may try to persuade an executive to adjust a policy one way or another in a way that accommodates reasonable needs, but that's a very different thing from saying that the sacrifice, the physical welfare of people in a particular jurisdiction, because we have a principle here and illegal immigration is a hot-button issue, therefore everything else goes by the wayside--you can't say that. Senator Durbin. Can I conclude, or would you conclude from that statement that the primary responsibility for enforcement of immigration laws and policies is a Federal responsibility? Judge Mukasey. The primary responsibility is a Federal responsibility. Often you can't do that without the cooperation of local authorities. I would seek it, but certainly it is principally the Federal Government's responsibility. Senator Durbin. We spoke about the issue of race yesterday and I thought your answers were consistent with my values, and the values of most Americans in terms of trying to reduce the tension between whites and African-Americans when it comes to justice in America. I'd like to ask you about a specific case that you were involved in, Jordan v. LeFevre. This case involved a murder charge. The prosecutor struck multiple African-American jurors, potential jurors. The State trial judge refused to allow the defense attorney to have a fair opportunity to challenge the striking of these African-American jurors, the so-called Batson challenge. You denied the defendant's habeas challenge and allowed the conviction to stand, and were reversed by the appellate court. The appellate court said, ``The court insufficiently protects the defendant's equal protection rights when, in its haste to speed along the proceedings, it declares that a reason is rational without making the critical determination as to purposeful discrimination.'' On reflection, do you feel the appellate court's observation is correct and that you overlooked what could have been purposeful discrimination by the State in the selection of jurors? Judge Mukasey. The appellate court's observation was certainly correct. What I recall--from what I recall of that case--it's been a while since I looked at it--one of the elements in my consideration was giving deference to the judgment of the State court that made that decision in the first instance. The case came back to me. We had a hearing and went through each of the jurors that were struck, each of the reasons that were given, and ultimately the Batson challenge was rejected and that, I believe, was sustained on appeal. I don't actually recall whether it went up or not. I believe it did, and it was sustained. But I certainly agree that you have to give people an opportunity to make a record, and if I too hastily thought that somebody had been given an opportunity to make a record and that was not the case, then, yes, I regret that. Senator Durbin. We had questions yesterday about the issue of torture and the Geneva Conventions. The techniques which have been attributed to this administration involve painful stress positions, threatening detainees with dogs, forced nudity, waterboarding--that is, simulated drowning--and mock execution. When we had the Judge Advocates General testify, I asked point-blank whether they believed these techniques violated the Geneva Conventions and they said yes. And I asked if they felt if those techniques were used against an American detainee they would be violative of the Geneva Conventions and they answered in the affirmative. What is your opinion? Judge Mukasey. They--I mean, I'm certainly not in a position here to argue with the Judge Advocate General's view that they violate the Geneva Conventions and that, whether used against us or against anybody else, that they would. That said, I think we have to also recognize that when we're talking about coercive methods of interrogation, this is not a matter of choosing pleasant alternatives over unpleasant alternatives or good alternatives over bad alternatives. It's a choice among bad alternatives. What the experience is of people in the Judge Advocate General's corps, who are enormously well-disciplined and very skilled, what that experience has been with captured soldiers, captured military people, from enemies we fought in the past, may very well be far different from the experience that we're having with unlawful combatants that we face now. It's a very different kind of person. Senator Durbin. Well, I want to make sure I understand your response, because I think you may have created a division here in treatment, arguing that if these techniques were used in the past before the current threat of terrorism, it would be a different circumstance under the Geneva Convention than it might be today. I want to make sure I don't draw the wrong conclusion from that previous answer, so if you could clarify it for me, please. Judge Mukasey. I'm not sure how I can--I mean, I'm not sure I can clarify. Senator Durbin. Well, let me go back. I understood you to say that the Judge Advocates General, speaking about the Geneva Conventions and these specific methods of torture, may have been referring to previous times, previous conflicts, and that this conflict and this challenge of terrorism may present a different set of challenges that might be viewed or interpreted differently under the Geneva Conventions. If that is not what you said, please clarify. Judge Mukasey. I'm not sufficiently familiar with interpretations of the Geneva Conventions to be offering views on what would or would not come within it or outside it. What I thought I was talking about is procedures that are acceptable to the military that are authorized in the Field Manual and that represent the limit of what it is that the Armed Forces can do. There are other techniques that are, as I understand it, that may be used by, with proper authorization, people outside the military. Those are not covered in the Field Manual. Senator Durbin. But I'm speaking of the Geneva Conventions. The Judge Advocates General said the techniques that I described to you violated Common Article 3, and this is the baseline test that applies to everyone, not just soldiers. I believe that the Supreme Court agreed with that conclusion in Hamdan. Do you see that differently? Judge Mukasey. What part of Common Article 3 the Supreme Court found in Hamdan was applicable through--I believe through the Universal Code of Military Justice, unless I'm confusing my cases. I can't, as I sit here, recall precisely what part of Article 3 the Supreme Court found applicable. I thought they were talking about the need for trial and for an opportunity for a detainee to get a hearing. I did not think that concerned interrogation techniques. Senator Durbin. Let me try to bring it to the bottom line, because I want to make sure if there is common ground, we find it, and if not, that it's clear on the record. I want to understand, as to these interrogation techniques, whether you believe that they would constitute torture and, therefore, could not be used against any detainee, military or otherwise, by the United States Government? Judge Mukasey. I don't think that I can responsibly talk about any technique here because the very--I'm not going to discuss, and I should not, and I'm sorry I can't discuss, and I think would be irresponsible for me to discuss, particularly the techniques with which I am not familiar. When there are people who are using coercive techniques who are being authorized to use coercive techniques, and for me to say something that is going to put their careers or freedom at risk simply because I'm going to be congenial, I don't think it would be responsible for me to do. Senator Durbin. This is not a congeniality contest, and I'm sorry that I've gone over, Mr. Chairman. But, for instance, I just want to--if I could make one last point on the issue of waterboarding, simulated drowning. The United States has long taken the position that this is a war crime. In 1901, U.S. Army Major Edwin Glenn was sentenced to 10 years hard labor for waterboarding a captured insurgent from the Philippines. U.S. military commissions after World War II prosecuted Japanese troops for engaging in waterboarding. The torture statute makes it a crime to threaten someone with imminent death. Waterboarding is a threat of imminent death. I'm hoping that you can at least look at this one technique and say ``that clearly constitutes torture, it should not be the policy of the United States to engage in waterboarding, whether the detainee is military or otherwise''. Judge Mukasey. It is not constitutional for the United States to engage in torture in any form, be it waterboarding or anything else. Senator Durbin. There's your answer. The Chairman will followup. Chairman Leahy. I just want to make sure I fully understand. But I wrote down about three different times when you said ``unless it is authorized''. Are you saying that techniques can be authorized that are not constitutional? Judge Mukasey. No, that is emphatically not what I'm saying. What I'm saying is that techniques can be authorized that are beyond the Army Field Manual. I should not get into a discussion of what they might be, or in what combination they might be authorized. Chairman Leahy. But simply because something is authorized, if you have a law that says it is torture and it's not allowed, is there any way it could be still authorized? Judge Mukasey. If it is torture, as defined in the Constitution, as defined by constitutional standards, it can't be authorized. We don't have the Nuremberg defense. Chairman Leahy. Is the current statute outlawing torture constitutional? Judge Mukasey. I believe it is. Chairman Leahy. So that if something was authorized outside that statute or that violates that statute, that authorization is illegal? Judge Mukasey. Correct. Senator Durbin. Thank you. Thank you, Judge. Mr. Chairman. Chairman Leahy. Senator Whitehouse? Senator Whitehouse. Just to finish that thought, so is waterboarding constitutional? Judge Mukasey. I don't know what's involved in the technique. If waterboarding is torture, torture is not constitutional. Senator Whitehouse. ``If waterboarding is constitutional'' is a massive hedge. Judge Mukasey. No. I said if it's torture--I'm sorry. I said, if it's torture. Senator Whitehouse. If it's torture. That's a massive hedge. I mean, it either is or it isn't. Do you have an opinion on whether waterboarding, which is a practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces and pouring water over the cloth to simulate the feeling of drowning, is that constitutional? Judge Mukasey. If it amounts to torture, it is not constitutional. Senator Whitehouse. I'm very disappointed in that answer. I think it's purely semantic. Judge Mukasey. I'm sorry. Senator Whitehouse. As you consider this, I'd like to offer you at least a thought that I'd ask you to consider. This comes from testimony brought before the Senate Intelligence Committee that is declassified. It comes from a military officer who has conducted interrogations who was team chief during the Gulf War, who had all of the services under his command, interrogating literally thousands of prisoners. He was an advisor to Special Operations task forces during Iraqi Freedom. He says, ``I've had a chance to really look at the academic, theoretical side of interrogation and I am steeped in the operational side.'' I asked him, ``From the point of view of intelligence-gathering effectiveness, would you, could you, or should you go beyond the Army Field Manual and the techniques that are authorized in the Army Field Manual in order to obtain intelligence? His answer: ``Senator, I thank you so much for that question, because I've been waiting 20 years to answer it. That is: absolutely not. I am not at all limited by the Army Field Manual in terms of what I need to do to generate useful information. That's the key: accurate, useful information, not leading questions to force soembody to say what they think I want to hear, but the full spectrum of their knowledgeability; not answering only the questions I ask, but developing what I call `operational accord', a relationship that they see it's in their best interests under non-pressure, non-coercive circumstances that it would be in their best interests to answer these questions fully.'' He gives an example of critical intelligence gathered in a search for SCUD sites in the Iraq war and explains that he received it because the individual said: `` `I'm so amazed at my treatment. I wanted, if I was going to be captured, to be captured by one of your allies, not by the Americans, because I was told you were animals. You've treated me like a gentleman. You've treated me with respect. You are clearly knowledgeable of my customs and my culture. I am more than happy to answer any questions that you have.' '' So I asked him to confirm this: ``What you mean to say was, you don't see the constraints of the Army Field Manual, the moral constraints, the legal constraints as in any way inhibiting the effectiveness of your examination techniques, that you could do everything you wanted to, that you missed for nothing because of those restrictions, is that what you intended to say? '' The answer: ``That's precisely what I meant to say. I don't see those as limiting my ability to work, the spirit or the letter of that guidance. My approach was what we called a relationship-based approach. I've never felt any necessity or operational requirement to bring physical, psychological, or emotional pressure on a source to win their cooperation. So, following the guidance in the Field Manual, I feel unconstrained in my ability to work in the paradigm I've taught for so many years--22 years, 100 percent interrogation experience.' So then I asked him, ``Why don't other countries do this?'' He said, ``That gets to the very heart of the matter, and it is this: there are two objectives that one can pursue in interrogation, either winning cooperation or compliance. They seem very similar, but there are profound differences. Compliance means to take action that is against your interests that you don't support. It has nothing to do with intelligence. Cooperation is winning a source's willingness to provide useful information. If the Chinese were interested, the Koreans, the North Vietnamese, it was maybe 5 percent intelligence, 95 percent compliance, meaning creating propaganda. That's a whole different paradigm. The approaches that they use, like sleep deprivation and torture, ultimtely will get any one of us in this room to do things we couldn't imagine today, but it doesn't necessarily mean our ability to provide useful information.'' He concluded later by saying, ``So I think the key point, sir, is are we trying to produce compliance, which is propaganda, or cooperation, which leads to intelligence?'' I hope, as you're evaluating these techniques, you will also consider the, I believe, widely held view of career professionals--the FBI, the military--in the interrogation field who think that these techniques are not only wrong, but ineffective. Two quick questions. We talked yesterday about the rules and regulations, the norms, practices, and protocols, and traditions of the Department. I urged you to consider those. You said that you would do so, and you referred to a variety of people. I want to pin you down and ask you, sir, if you would pledge to undertake some formal process of review and evaluation of those internal protocols, norms, and practices so that you get a report from experienced people on what needs to be repaired? Judge Mukasey. I'm going to pledge to undertake to review the practices. I'm going to pledge to consult with people, both inside and outside the Department in the course of that. Convening a formal process is something I can't commit to now. If it is necessary and if I find that the results of inquiry and consultation don't yield a satisfactory result, I will consider that. Senator Whitehouse. Do you agree to keep me informed of your activities in this area? Judge Mukasey. I will. Senator Whitehouse. Thank you. Finally, in the event that you are sworn in as Attorney General of the United States, do you believe that you will be working for the people of the United States of America or the President of the United States of America? Judge Mukasey. I will be working for all the people of the United States of America, and I see no antithesis between that and the President's Cabinet. I am here because I've been nominated by the President. If I am confirmed, I will be a member of the President's Cabinet. I will serve as I believe the certificate says, ``at his pleasure''. That said, my oath is to uphold the Constitution, and that's what I'm going to do. Senator Whitehouse. There is a distinction that I believe your predecessor failed to appreciate between who has the appointing authority for a position and where the duties of that position run. Do you agree with that? Judge Mukasey. I don't want to sit here, and I'm not going to sit here, and criticize my predecessor. I have no-- Senator Whitehouse. I'm sorry. Let me rephrase the question. Do you agree with that distinction? Judge Mukasey. I have no such confusion. Senator Whitehouse. Very good. OK. Thank you. Thank you, Mr. Chairman. Chairman Leahy. Thank you. Judge Mukasey has requested a 5-minute break. We'll take a 5-minute break. I've been told you requested one. No? Judge Mukasey. Somebody missed a signal. Chairman Leahy. Well, if you're not, then we will go to Senator Cardin. Judge Mukasey. Fine. Chairman Leahy. Thank you. Senator Cardin? Judge Mukasey. Maybe somebody thought I should have requested it. I don't know. [Laughter.] Senator Cardin. Thank you, Mr. Chairman. Let me just ask a few more questions on torture, just to complete the discussion here. If I understand your answers, if you determine or if it's determined by the Department of Justice that an individual has violated the torture statute or the Constitution, and even though that person has acted under authority of the commander or the President, that if the determination is made that in fact the constitutional statute has been violated, you would move to hold that person accountable? Judge Mukasey. I would move to hold that person accountable after reviewing the facts of that case. Senator Cardin. Certainly. I implied that in the question. This is not trying to be a trick question. I'm just trying to determine, you've been pretty clear about torture being unconstitutional. You've been pretty clear that our statutes are to be enforced. I understand there could be some challenge as to the interpretation of the statute. I understand that. Which gets me to the second point that we've been going back and forth on, and in response to Senator Whitehouse's questions. What I guess I'm looking for, and I think I feel comfortable with your answers, is that you're going to be advising the President, advising our Department of Defense, advising our different agencies as to your independent judgment within the Department of Justice as to what constitutes torture, and that you're not going to be just responsive to try to defend what some commander may want because that person believes it's effective in getting information. Judge Mukasey. That's absolutely correct. Now, I'm going to request a short break. Chairman Leahy. Thank you. We will take a break for 5 minutes? Judge Mukasey. Yes. Chairman Leahy. Five minutes. [Whereupon, at 12 p.m. the hearing was recessed.] AFTER RECESS [12:09 p.m.] Chairman Leahy. The committee will be in order. I understand somebody is still trying to figure out how to turn this away from being a meat locker. Judge Mukasey. I'm glad someone else noticed. Chairman Leahy. I apologize. Even as a Vermonter, I find this rather chilly. [Laughter.] Chairman Leahy. Senator Cardin? Senator Cardin. Thank you, Mr. Chairman. Judge Mukasey, I'd like to followup with the discussion we had yesterday on voter suppression. In your response, you said that voter fraud and voter suppression should go hand in hand and it should not be an either/or situation, and I agree with that. There's no disagreement that we want to make sure that those who are qualified to vote are the only ones that do vote, and we want to fight voter suppression issues. The reasons for my questions, is that many of us believe there have been resources taken away from voter suppression. My question to you is whether you will commit to make sure there are adequate resources and attention in your Department to voter suppression issues. Judge Mukasey. I well understand the reason for your concern, and I share it, and I will try to assure that. Senator Cardin. Thank you. And I very much appreciated your response in regard to the more recent types of attempts at voter fraud, to suppress vote by wrong information given out on election day. I very much appreciate your attention and response on that issue. Judge Mukasey. And when I characterized that as fraud I wasn't trying to be cute and say it's distinct from voter suppression. It is fraudulent voter suppression. It is to be put down. Senator Cardin. Thank you. Judge Mukasey. So there's no ambiguity. Senator Cardin. I appreciate that definitive answer. Let me also return to one other subject we talked about, and that was the hate crimes activities, and just bring to the attention of this hearing the community relations services within the Department of Justice, because I think it's a very valuable resource that would help provide assistance to communities and individuals who have been subject to discrimination issues. I would just urge you to make sure there are adequate resources and attention given to that particular service. I will point out in the Jena situation, I think it took over a year before there was any attention by that agency to the problems in Louisiana. I just think that's a good community service offered by the Department of Justice and would urge you to take advantage of it. Judge Mukasey. I will. Thank you. Senator Cardin. Let me bring up a subject that has not been brought up, and that is ethnic and racial profiling, to try to get your assessment of your commitment in this regard. This type of activity has unfortunately been present in America for many years. In the 1900's, the early 20th century, we had the Palmer raids that dealt with immigrants; during World War II, we had Japanese-Americans who were interred, and Congress has taken steps to tried to acknowledge and correct that mistake in our history. More recently, there have been actions by law enforcement to target certain communities by profiling. Many of us believe that this is not what America stands for, and I would just like to get your thoughts on the use of ethnic or racial profiling. Judge Mukasey. I'm one of the people who believe as you say: this is not what America stands for. We don't single out people by group. People get treated as individuals. Singling out groups and putting particular focus on groups or looking for particular groups when law enforcement activities are being conducted is not consistent with a system that evaluates each person individually. I understand that and I want everybody else in the Department to understand it. I believe they do, but I want to make sure they do. Senator Cardin. And last, let me bring up another issue which I don't believe has gotten too much attention during this hearing, and that's the disparate case issues where you have a supposedly neutral action taken that has a negative impact on a minority community, whether it's in housing, employment, or elsewhere. The concern is that there has been less attention given to these types of cases during the last several years by the Department of Justice than historically has been given, whether it's in housing, or whether it's employment, or other areas. I would just like to get your assessment as to the importance of going after those types of activities that on the surface may appear to be neutral, but have had a negative impact on advancing rights for all Americans. Judge Mukasey. I think when you find that a rule or a practice is having an impact on one group that is very different than the impact that it's having elsewhere, you have to take a very close look, subject to very close scrutiny, any such rule or practice to make sure that we're not talking about something that is simply a cover or a code for something else. Senator Cardin. I thank you for that response. I think you will find, among your career attorneys and staff within the Department of Justice, tremendous experience in this area. I think there has been a sense of frustration, at least as has been expressed to some of us, that that analysis has not gotten the type of attention that it should at the highest levels of the Department of Justice. So, I would just urge you to please take a look at those numbers, take a look at those cases there that have not been brought forward, because I do believe that there has not been the type of attention given to these types of cases that not only affect the specific practice, but gives clear guidance to the private sector as to what will be accepted and not accepted in our society in order to try to improve opportunity for all Americans. So I would just urge you to please take a look at what's been done, and once again I thank you for your patience with this hearing and wish you well. Judge Mukasey. Thank you very much. Senator Cardin. Thank you, Mr. Chairman. Chairman Leahy. Senator Specter is managing a bill on the floor which we'll be voting on very soon. He wants to come back for another round which, as a matter of courtesy, of course, I'll grant as the ranking Republican on this committee. He will come back at 2. But before we break, I'd like to do two things. One of the concerns I've had--actually, Senator Cornyn from Texas has joined me in this--is the practice of the previous Attorney General, who has abetted the Bush administration's abuse of secrecy and encouraged the Department of Justice officers to withhold information under the Freedom of Information Act, or FOIA. It's a bedrock statute that opens our Government to our citizens, as I've seen many times. No matter whether you have a Democratic or Republican administration, they're going to be happy to send out press releases sayign all the things that they did right. It is usually up to the press to find out the things they did wrong, and FOIA helps in that regard. Will you commit to review and consider overturning some of these policies, Number one, and second, will you look at the legislation Senator Cornyn and I have put together with strong bipartisan support to reform FOIA? The reason we want to do it now is so we can say we are doing it, not having any idea who the next President is going to be, or whether it's a Republican or Democratic administration. We feel strongly about this, and it should be done now so that whoever's in that administration will have an open administration. Judge Mukasey. I will certainly review the policies. Obviously I can't say that before we had FOIA we didn't have a democratic system in this country, we did. But we have certainly enhanced it substantially with that statute, and I understand the value of it and the utility of it. I'm going to look at the policies you mentioned with that in mind. Chairman Leahy. We'll come back. I may have some further questions. I am concerned that a number of your answers yesterday, there was a very bright line on the questions of torture and the ability of an Executive, or inability of an Executive, to ignore the law. That seems nowhere near as bright a line today. Maybe I just don't understand. You're a lawyer from New York City. You've been a judge. I'm just a lawyer from the small State of Vermont. I may not fully understand the nuances. But I'm going to be asking further questions because I don't know whether you received some criticism from anybody in the administration last night after your testimony, but I sense a difference, and a number of people here, Republican and Democratic alike, have sensed a difference. I want to make sure we clear that up before we finish. Judge Mukasey. I received no criticism. I had dinner with my family last night. Chairman Leahy. You did a lot better. I did, too. I turned down a public event so I could have a quiet dinner with my family. You're probably a lot better off that way. Judge Mukasey. Well, I should also point out that when you say I'm a judge from New York, I am a judge from New York and I've watched a lot of cross examinations, and I know the way cross examinations proceed: you start with an easy step and you go down the road. I don't want to go down the road on interrogation techniques. That's obvious. Did the things that were presented to me seem over the line to me as I sit here? Of course they do. They were intended to, and they did, and they do. But part of this is, it's not so much the question as it is the next question and the one after that. That's what concerns me. I need to be, I think, very careful about where I go on that subject. Chairman Leahy. Let's think about it during the noon hour, because I will come back to it on the questions. It's one thing to say the statute allows this or doesn't allow this. That said, I am concerned that you leave some opening that different parts of our Government may be held to different standards, or that some may be authorized to act outside the law. I'm careful in choosing my words in an open session, but we may want to go back to that issue. Judge Mukasey. Thank you. Chairman Leahy. Thank you. We'll stand in recess until 2. I thank you. We'll try to get the place warmed up before then. [Whereupon, at 12:20 p.m. the hearing was recessed.] AFTER RECESS [1:59 p.m.] Chairman Leahy. Judge, I think it should be a tad warmer. Judge Mukasey. It is. Thank you. Chairman Leahy. I thank those who arranged that. I mentioned that Senator Specter was managing a very significant bill on the floor, and he had another couple of questions he wanted to ask. So I'll yield to him, and then I think we'll be able to wrap up with you. Although I must point out, as I did earlier, I will followup on one point we covered earlier this morning. I will have some followup questions, and I would hope you would look at them very seriously. Senator Specter. Thank you, Mr. Chairman. Judge Mukasey, there has been a lot of controversy over the so-called Thompson memorandum and the McNulty memorandum with respect to the issue of attorney/client privilege with a practice by the Department of Justice to obtain waivers of the attorney/client privilege, and some controversy as to whether they're voluntary or to what extent they are not voluntary. Legislation is pending which would eliminate that practice. My concern arises on two fundamental propositions: one, is that the commonwealth, the government, the State, has the burden to prove its case; and second, the right to counsel is a constitutional right and the attorney/client privilege is an indispensible part of the constitutional right to counsel. I have had some experience in the field, having been D.A. of the city of Philadelphia, and I would never have considered asking a defendant to enable me to prove his case, metaphorically speaking, out of his own mouth. The Department has made some modifications from the Thompson memo to the McNulty memo by raising the level within the Department of Justice, from Assistant Attorney General to Deputy, whether there's a request for a waiver on facts or a waiver on opinions given by the attorney. You, of course, are very familiar with this issue, for many reasons. You have ruled on the issue. Is there any real justification for having a waiver on anything other than a purely, purely voluntary basis? Judge Mukasey. First of all, I should start out agreeing with you on how fundamental privilege is. Absent the privilege, the right to counsel is nearly meaningless. You can't get counsel--you can't be expected to disclose the facts to your lawyer so as to get good counsel if what you think you're doing is disclosing them ultimately to the prosecutor. In a corporate setting, the issue--the overriding issue--on whether to prosecute a corporation or not prosecute a corporation is what happened, who did it, how pervasive the conduct was, and whether all of this rises to the level that requires prosecution, not only to individuals, because after all, corporations can act only through individuals, but of the corporation itself. And in the course of that, a lot of that has gotten lost with focus on looking for waivers of attorney/ client privilege or other rights of the corporation. I think part of this is because corporations are run by directors who have an obligation, a fidiciary duty, to find out facts, and because they often do appoint committees to find out facts and do reports, it is--those--the existence of those reports is well known, and their availability is, in a way, tempting. They help prosecutors save time in finding out facts. Senator Specter. Well, if the directors want to waive the corporate privilege, they could do that. It is their voluntary decision. That wouldn't necessarily involve the employee who has a separate privilege. But the difficulty arises that if the privilege is not waived, there are tougher charges. The prosecuting attorney has vast discretion, as we all know, on charging. In many ways, the prosecuting attorney is the most powerful person in the government, said to have the keys to the jail in his pocket, not only on charging, but on recommendation of sentence. An awful lot of coercive power. That's where the problem comes in. If they want to do it voluntarily, nobody ever told them before the Thompson and McNulty memos that they couldn't do it. Judge Mukasey. Particularly when it involves a corporation, where the very bringing of a charge is often the end of the road. I think that the problem that's arisen under those memoranda is that when corporations want to say that they're cooperating with prosecutors, we want to get the deferred prosecution or non-prosecution agreement, the prosecutors are told that when they're evaluating the standards for determining whether the corporation is, in fact, cooperating or not, the degree to which the corporation discloses facts, and thus waives its privilege, is one measure. I think, though, that-- Senator Specter. Well, why should cooperation or a waiver of a right determine what the charge will be or what the sentence recommendation will be? Judge Mukasey. I think it's not-- Senator Specter. If you plead guilty, it's well known that if you show contrition it has to be taken into consideration as a mitigating factor. But why should failure to waiver a constitutional right be an aggravating factor? Judge Mukasey. I think it's not intended to be made an aggravating factor, but simply that if a corporation, through its individuals, which is the only way that a corporation can act, if there's been a violation of law, there's always a question of whether the corporation should be prosecuted or not. It's not a question-- Senator Specter. Do you think the McNulty memorandum is a solid approach to this issue? Judge Mukasey. I haven't reviewed the McNulty memorandum recently. I think it has to be examined very, very carefully, and the point made that we are not--that that is not to be used as a club, and the corporation is not to be told, you're not going to be--you want to say you've been cooperative? If you haven't waived the privilege, you haven't been cooperative, and the conversation stops. Senator Specter. Well, if it's not to be used as a club, that's fine. But it is a club and it is used as a club, from all we hear. Senator Leahy and I sat down with Deputy Secretary McNulty and tried to find some common ground and we couldn't do it. So let me ask you to--you say you haven't reviewed it, and I know there are too many things for you to review in the short period of time between your designation here. But if you would do that, we'd like to talk to you more about it, because the legislation is going forward. There's a great hue and cry because there's a great feeling far and wide that it is unfairly used. We recognize the seriousness of corporate crime. We know the impact. We see what's happening with Enron and other companies. We're concerned that the aiders and abetters may be held responsible, civilly at the minimum. But when a constitutional right is involved, we'd like to see a little closer, more careful analysis. On the issue of the request for the resignations of the U.S. Attorneys, we are at an impasse. I was consulted by Attorney General Gonzales as to what he should do, and I recommended to him early on privately, and then said it publicly in this room, that the best course would be to make a full disclosure as to everything that had happened and lay it all out as to whether there was justification for the request for those resignations. Right now, there are some subpoenas outstanding and they involve high-profile people, such as the White House Counsel and Deputy White House Counsel, Ms. Meirs and Mr. Rove. We have tried to find a way of accommodating what the President wants to do. He undertook this issue himself in a nationally televised news conference to say that he did not want them to be questioned by both House's Judiciary Committees, and there's agreement there that we don't have to do that. We can have a few members of the Judiciary Committee from each House, bipartisan, question them. He didn't want them under oath. We prefer them under oath, but said, OK, no oath. There was no penalty for a false official statement in any of that. He didn't want them with a transcript, and we said that's not a good idea, we should have a transcript. I had a chance to talk to him personally about it. The transcript is more for the protection of the individual; you walk out of a meeting, and there are five different views as to what was said. But we had even agreed to forego that, at least I had. Then they wanted the commitment that we wouldn't go any further if we were dissatisfied, but we felt we couldn't make that commitment without abrogating our responsibilities. If we wanted to proceed any further, we were going to do that. And, of course, you haven't been inside this issue. What I'd ask you to do, is to take a close look at it and see if you can help us resolve this impasse, at least on the transcript. Let me ask you, did you see any problem, or isn't there a great benefit to everybody, especially the person being questioned, to have a transcript so there's no doubt as to what was said? Judge Mukasey. There is often--there is often a great benefit to everybody from having a transcript. But I think it has--it's true of many conversations, it's often a lot easier to talk and to actually get facts when somebody isn't sitting there watching every syllable they say so as to be sure not to make a misstep. Senator Specter. I'd like us to go off the record and cease the transcript here, Mr. Chairman. I think we might find something further here. Judge Mukasey. I'm sorry. I did not mean to suggest that we should cease the transcript. Senator Specter. Well, you're weighing every syllable just as you described it, Judge. Chairman Leahy. We haven't ceased the transcript. I don't want you to be fooled by that. I think it's probably still going on. Besides, there are four or five cameras. Judge Mukasey. Beg your pardon? Chairman Leahy. A half a dozen cameras here. You can assume every word is being followed. Senator Specter. Pardon my interruption, Judge Mukasey, but you were just describing yourself. I couldn't help but note that we might find out more from you if we stopped the transcript. Judge Mukasey. I think what you found out from me is everything that's there. Senator Specter. Well, if you have doubts about a transcript, I'd ask you to take a look at it. Chairman Leahy. We'll come back to that. Senator Specter. I'm trying to move these hearings as fast as I can. I gave you a letter when I saw you recently, Judge Mukasey, about oversight. This is a very sticky issue. I've made it a practice to give a letter, as I did to Attorney General Gonzales, to the Deputy Attorney General, and to others on the essential question of the breadth of congressional oversight, and it was summarized, as I pointed out to you, by the Congressional Research Service analysis, which essentially says that DOJ has been consistently obliged to submit to congressional oversight, regardless of whether litigation is pending, so that Congress is not delayed unduly in investigating malfeasance or maladministration at DOJ or elsewhere. And it includes, as the memo from Congressional Research Service says, ``testimony of subordinate DOJ employees, such as line attorneys and FBI agents. Investigating committees were provided with documents respecting open or closed cases that include prosecutorial memoranda, FBI investigative reports, summaries of FBI interviews, memoranda of respondents prepared during the pendency of cases.'' Would you agree that that's an accurate statement of the legitimate scope of congressional oversight? Judge Mukasey. I have no way to dispute the accuracy of the history that's set out there. There have been instances in which each of those categories of information has been produced. As I sit here, it seems apparent that there are also instances when the pendency of a case on some other issue, or some issue of privilege, if there is one, is going to result in hesitancy to produce the kind of information that you read off. I think it needs to be approached very carefully on a case-by- case basis. I've said in the past, and I am now having a hard time distinguishing between the private meetings and this session, that I don't think that oversight is a zero-sum game in which everything that gets disclosed is somehow a loss for the Department, and everything that doesn't get disclosed is somehow a gain. You have a very broad oversight authority and it's something that benefits not only the process, but the Department as well, because it assures that it keeps a high level of performance. I recognize that and that's why disputes in the past, to the extent that there have been any, historically, have been worked out. Going to extremes has been, as I understand it, very much the exception. I hope it will remain very much the exception. I hope there won't be any. Senator Specter. Well, is there some exception--is what you're saying is that you agree with what I read as a generalization? Judge Mukasey. I agree what you read has happened in the optimum case, yes. Senator Specter. What is the ``optimum case'' ? Judge Mukasey. The optimum case is the case in which the kind of information that you mentioned can be disclosed without any adverse impact on pending litigation, on privilege, on the ability of the Department to function. Senator Specter. If the sole determiner of adverse impact is the government, we don't get very far. Judge Mukasey. That's not the sole determinant. That's why I said this is something that's always been worked out, or almost always has been worked out, in discussions between the Department and the committee, and people on the staff. Senator Specter. So that's a fair generalization to be worked out on a good-faith basis between Congress, say, and the Department of Justice? Judge Mukasey. It is. It is. Senator Specter. Did you say it is? Judge Mukasey. I did, yes. Senator Specter. I'm almost finished. Just a couple more questions. Judge Mukasey, the Combat Status Review Board was a subject of an inquiry yesterday, and it's a very long subject and I'm not going to take up the time to do it now. Instead, I'm going to ask you to review it. I'm going to ask you to review the case I called to your attention under the caption of in re: Guantanamo case, which recited a proceeding before the Combat Status Review Board where a detainee was charged with associating with Al Qaeda people. As for the name, nobody could give it to them. As the report says, ``there was laughter in the courtroom, the proceeding was so ludicrous.'' I would ask you to take a look at the statement of Lieutenant Colonel Steven Abraham, describing what goes on in the Combat Status Review Board from a person on the inside, who shortly after this received a lot of notoriety when the Supreme Court granted the petition for re-arguing the case now pending. I think, in anticipation of that oral argument, the government has now come up with another procedure which has not been fully explained. It is true that you can have a substitute, under Swain, that it has to be an adequate substitute. The Swain case dealt with habeus corpus in the District of Columbia, the equivalent of a State court, with the only difference being the tenure of the judge, very close to Federal court habeus corpus. I'd like you to take a look at that. And the final question I have for you is on the question of the government notifying people under investigation that it's over whenever it is over. I've heard a lot of complaints of people who are under investigation that the matter goes on forever and they never know whether they are or are not, and there's a great deal of apprehension, understandably, of people under investigation. We are advised that some U.S. Attorney's Offices tell the person when the investigation is over, if they really know it's over. There, I'd like you to take a look at that again to see what the uniform policy could be handed down. Do you think, as a general matter, that fair play--wouldn't you agree that fair play would be best served by telling people when it's over, if it is over? Judge Mukasey. If it's over, I agree that it's desirable for people to know that it's over. There are a myriad of cases where it's frequently uncertain. In different kinds of cases, in organized crime cases and so on, it's, regrettably, hardly ever. I agree to take a look at it. That, I will agree to. Yes. Senator Specter. Well, I would agree with you that if it's not clear that it's over, they aren't entitled to be notified. I would hope that there would be a policy that they would be. Judge Mukasey. It's also, in part, a difficulty because it can hurt somebody more when there's a policy to notify somebody that an investigation is over, and for some reason it can't be done in a particular case for a person not to be notified, than if there were not a policy of doing that. It's kind of--in a way, it's kind of a two-edged sword. It is difficult. I would like--you'd have to be-- Senator Specter. Well, if you'd take a look at that again, like so many other matters. Judge Mukasey, you have been a very impressive witness, very impressive credentials coming to this nomination, very impressive, your testimony here. And unless the witnesses who are here today who were called in support of your nomination change their minds and give highly damaging testimony, I think you are virtually certain to be confirmed. We're glad to see the appointment, glad to see somebody who is strong, who has a strong record, take over this Department. The Chairman and I, and all the members of the committee, and probably many in the Senate, will have a lot of contacts with you. We look forward to being helpful to you and we look forward to cooperative efforts on many very important problems which face the Department of Justice in this country. Judge Mukasey. Thank you very much. Senator Specter. Thank you. Thank you, Mr. Chairman. Chairman Leahy. Thank you, Senator Specter. I would note, as I said earlier today, you've been extremely careful in your answers. I have a problem because some see you to be backing off from yesterday. But I will say this, that I much prefer, at least, a careful answer to 75 or 80 times of ``I don't know the answer'' or ``I can't answer that'', which we used to have from your predecessor. I mentioned Jack Goldsmith in my opening remarks. He was the former head of the Office of Legal Counsel. His book, ``Terror Presidency'', which I understand you've read--you can see how well annotated it is here--PBS program ``Frontline'' this week had an extraordinary program. It had a Pulitzer Prize-winning reporter from The Boston Globe, Charlie Savage. He wrote ``Takeover: The Return of the Imperial Presidency and the Subversion of the American Democracy''. I know some of the people written--goes across the political spectrum, but all of these reports conclude the Office of Legal Counsel has been changed from the traditional place it has had in administrations, where you just go to get a clear-cut legal definition. Instead, it's been the place where the administration has gone--a lot times they find under the law they can't do something, they go there and it's kind of like, you put in and ask for your customized legal opinion so they can go ahead and do it. For example, on the opinions on torture, Professor Goldsmith wrote, ``It, in effect, gave interrogators a blank check,'' and he said ``the opinions read like a bad defense counsel's brief.'' You testified yesterday that, as Attorney General, you would review the legal opinions in the Office of Legal Counsel. Can you add to the list of opinions that you're going to review those on executive privilege? Judge Mukasey. I will. Chairman Leahy. And those on immunity of executive officials from congressional testimony? Judge Mukasey. I will. Chairman Leahy. And if you disagree with them, will you change them? Judge Mukasey. I will do that. Chairman Leahy. And I will go by that assumption that, if you don't change them, you agree with them. Would that be a fair assumption? Judge Mukasey. That will be a fair assumption. Chairman Leahy. Thank you. Would you agree that the office has to have independence? Judge Mukasey. The office has to adhere to one standard and one standard only, and that is what the law requires. Chairman Leahy. I would hope that you would try to get it back to that. I have been here six administrations, Republicans and Democrats, and they've always appeared to have independence in the Office of Legal Counsel before now. I don't believe, for example, that a President can step outside the law on issues of torture or wire tapping. So I hope that the hearings turn out to be a step on the road to restoring the Department of Justice. It needs it desperately. I have talked to you privately about the fact that I hope that you would put back a Department of Justice that could be in good hands for whoever your successor might be as the 82nd Attorney General. That might be in a year, it might be in several years; I have no way of knowing. I have no way of knowing whether we're going to have a President in my party or a President in your party. I think we can both agree that no matter what party you belong to, you need a strong, independent Attorney General in the Department of Justice. Now, I think we face the most serious threat to the effectiveness and professionalism in the Department of Justice since Watergate and the Saturday Night Massacre. After President Nixon became the only American President to resign from office, President Ford appointed Edward Levy and former Judge Harold Tyler, somebody both you and I admire, to begin the process of restoring the Department of Justice. It is too important an institution in our country to remain dysfunctional. I might say as a personal--just as the Senator from Vermont, I hope that Judge Mukasey, like Judge Harold Tyler, with whom you worked, will begin to restore the Department's integrity. You've testified that the Department must stand for the rule of law. I agree. But I also add this mandate: it must stand for justice. Nothing is more fundamental to our constitutional democracy than the precept that nobody is above the law, neither you, nor I, nor a President. I believe this administration has undercut that precept time and time again. The President commutation--and I realize he has the power to do this--of the sentence given to Scooter Libby, former Chief of Staff to the Vice President, who was convicted after a jury trial of lying to the FBI and to a grand jury, and obstructing justice. He commuted the sentence, even before the appeal was heard. We see them promoting immunity over accountability, and certainly secrecy over congressional oversight, with unilateral power over the checks and balances that define this Nation. Actually, I might say those checks and balances not only define the Nation, they have protected your liberties and mine for over two centuries. I don't believe the President is above the law, even though many in the administration seem to feel he is. The view that he may override the laws he chooses is as extreme a view of Executive power as I've witnessed, and he's dead wrong. I think it's extremely dangerous to our democracy. The cost to our American liberty, our standing in the world, the security of our soldiers and citizens, can be staggering if we allow the President to be above the law, even more staggering than the trillion-dollar cost of the war in Iraq. I think when the administration compounds this lawlessness by cloaking its policy and its miscalculations under a veil of secrecy, it leaves the Congress and the American people in the dark about what it's doing. I have not known any administration, Republican or Democratic, who hasn't been helped in the long run by having real, searching oversight and having to admit, publicly, mistakes. You and I have had some time to talk, we've had private meetings, and we've had open meetings here. I have been here for virtually all your testimony and listened to it. I do worry that there's been a retreat today from the clearer statements of the rule of law and the President not being above the law made yesterday. It's why I will followup with some very specific letters. If you have questions about what I have, just call me and we'll sit down and go over them. I don't want to see you appearing to posit a system where a President's over-broad and invalid claims of executive privilege can't be tested. So, we'll continue to meet on that, and I know that Senator Specter and the others will want to. The Attorney General has to uphold the Constitution and the law. He can't bend the law to fit whoever the President is. I will say that no matter who the President might be. You can't define torture down in secret in fundamental conflict with American values and law. I agree with what you said in your opening staetment, which I thought was very good. You spoke of protecting civil liberties and people's confidence with those liberties, and protecting them as a part of protecting national security. I agree with that, and also add they are a fundamental American strength, American value, one of the things I'm sure that appealed to your father when he came to this country; it certainly did to my grandparents, my great grandparents when they came to this country. So the hearing is going to be the start of a new chapter: American laws and our values are no longer undercut and secret. You know, the question in this hearing is not whether you'll be confirmed. The real test is going to be what kind of an Attorney General you will be. That's the test. That is also a legacy you will leave to your family, to--I hate to call your children; you are far beyond that--but I've been very, very impressed with both your son and daughter. Certainly it's a legacy that you and your wife can cherish, and it's one that you want--you want to be able to leave this office, as we all do in ours, with your head high. The oversight process, and the Attorney General's cooperation with that process, can forge a working partnership. To paraphrase Ronald Reagan, a confirmation by the Senate is an act of trust. Oversight helps us verify. This Committee, and all parties, are ready and willing to work with you. I think we've already begun. Judge, I don't mean to take the last word here. If you want to add something to that before we go to the next panel, please feel free. Judge Mukasey. I couldn't add in any way that would improve it. The only thing I can tell you is, if you ultimately do repose trust in me, I'll spend the next however many months it is trying to vindicate that trust. I am grateful to you for this. Thank you. Chairman Leahy. Well, you have your family, my family, and you have 300 other million Americans who need you to do that. Thank you. We'll stand in recess for 5 minutes. Senator Cardin. Mr. Chairman? Chairman Leahy. Yes? Senator Cardin. It's my understanding that there is now scheduled votes on the floor starting at 2:30, and there are four votes that are scheduled, so it may be better for us to recess until about 3:45 and start the next panel so we don't conflict. Chairman Leahy. Recess until the call of the chair. Thank you. Thank you, Judge. [Whereupon, at 2:30 p.m. the hearing was recessed.] AFTER RECESS [3:47 p.m.] Senator Cardin. [Presiding]. The Judiciary Committee will come back to order on the confirmation hearings of Judge Mukasey for Attorney General of the United States. I want to welcome the panel of outside experts. We thank you very much for your cooperation and being here today. It's very important that the record, in regards to the confirmation of an Attorney General, that there be opportunity for witnesses that know the nominee or could add to the consideration of the committee, have an opportunity to give that testimony. And we thank you all for agreeing to be here today and to be witnesses at this hearing. As is the tradition of the Judiciary Committee, I'm going to ask you all to rise in order to take an oath. [Whereupon, the witnesses were duly sworn.] Senator Cardin. We will start with Mr. Thornburgh. Mr. Thornburgh has served as Governor of Pennsylvania, Attorney General of the United States for two Presidents, and was the highest ranking American at the United Nations. Elected Governor of Pennsylvania in 1978 and reelected in 1982, Governor Thornburgh was the first Republican ever to serve two consecutive terms in that office. Governor Thornburgh served 3 years as Attorney General of the United States in the cabinets of Presidents Ronald Reagan and George H.W. Bush. During his service as Undersecretary General at the United Nations, Governor Thornburgh was in charge of personnel, budget and finance matters. He also served as a consultant to the United Nations and the World Bank on efforts to battle fraud and corruption. Governor Thornburgh received his bachelor's degree from Yale University and his law degree from the University of Pittsburgh, which is where I graduated from undergraduate school. Governor Thornburgh, it's a pleasure to have you here. STATEMENT OF DICK THORNBURGH, FORMER GOVERNOR OF PENNSYLVANIA, OF COUNSEL, K&L GATES, WASHINGTON, DC Governor Thornburgh. Thank you, Senator Cardin. It is an honor to appear before the committee today and offer my views on the Department of Justice at this important juncture in its history and to tell you why I support President Bush's nomination of Michael Mukasey to be the 81st Attorney General of the United States. The current situation at the Justice Department is, in some ways, similar to one that I encountered when I became the 76th Attorney General in August 1988. Two senior Justice Department officials, the Deputy Attorney General, Arnold Burns, and the Assistant Attorney General in charge of the Criminal Division, William Weld, had resigned their positions earlier that year because of their concerns about the ability of my friend and then Attorney General Ed Meese to lead the department while he was under investigation by an independent counsel. These resignations reflected some degree of turmoil within the department. Although the independent counsel did not seek to prosecute Attorney General Meese, his report, which was issued in July 1988, was sufficiently critical that Ed Meese chose to resign from office early in August 1988. After confirmation, I was sworn into office shortly thereafter. I considered it to be a unique honor and privilege to return to the Department of Justice, a great institution that I loved and still love. I had previously served as the United States Attorney for the Western District of Pennsylvania and the Assistant Attorney General in charge of the Criminal Division under President Ford during the immediate post- Watergate era. Those experiences heightened the most profound respect I held for the Department for its critically important and unique role in our Federal Government and for the legal abilities, professionalism and integrity of the career civil servants who carry out its vital missions. Early in my service as Attorney General, I established a majority priority, the restoring of morale within the Department of Justice in the wake of the recent turmoil at its very top ranks. With the indispensable assistance of that distinguished cadre of career employees to whom I referred, I believe that we were able to do so and to lead the department in the successful execution of its law enforcement functions and its vitally important role in the administration of justice. Today, the Department of Justice is enduring another unfortunate period of turmoil at the top. There is no confirmed Attorney General, no confirmed Deputy Attorney General, and no confirmed Associate Attorney General. There are no less than six vacancies among the Assistant Attorneys General and more than 20 vacancies among the United States Attorneys. Although I strongly commend the job that acting Attorney General Peter Keisler and the Solicitor General, Paul Clement, are doing under difficult circumstances, the Department simply cannot function at the very highest level of efficiency and effectiveness with so many major vacancies in its top leadership corps. Let me comment in particular on the importance of the Justice Department's enforcement of our Nation's criminal laws. The prosecutorial function is the unique responsibility of the Department of Justice within our Federal Government. Although I am not passing judgment on the recent controversy over the dismissal of certain United States Attorneys, I will say that it is absolutely essential that the unique prosecutorial function of the Department of Justice be carried out in a strictly nonpartisan, unquestionably fair and evenhanded manner, both in fact and I appearance. In other words, Federal prosecutors must follow the evidence where it leads without fear or favor. Nothing could be more important. The Department of Justice simply must retain its unique degree of independence, because the Department alone, among the agencies of the Federal Government, has the power of criminal prosecution. You will hear from a distinguished former United States Attorney, Mary Jo White, and an equally distinguished former district court colleague of Judge Mukasey's, Judge John Martin, to testify about the personal qualifications of Judge Mukasey to be our Attorney General. While I have only recently met Judge Mukasey, I, like many others, admire his record. He spent 4 years as a career Federal prosecutor in a very important U.S. Attorney's office, that of the Southern District of New York. It is a testament to his record of accomplishment in that role that President Ronald Reagan nominated and, by and with the advice and consent of this body, appointed Michael Mukasey to be a judge of the United States District Court for that same district. In his 18 years on the Federal bench, Judge Mukasey served with distinction, earning, in particular, a well deserved reputation for the manner in which he conducted the proceedings of his trial court in major cases of importance to the national security of the United States. Just as the role of Federal prosecutor is a unique, independent and nonpartisan one, so the job of a United States district judge is one that must be conducted in exactly the same manner. Judge Mukasey has a strong reputation for having done precisely that. At this critically important time for the Department of Justice, in Judge Mukasey, the salient qualities of the person and the critical needs of the moment are well matched. There is no question, in my mind, that Michael Mukasey is the right person at this time to fill the supremely important, singularly unique role of chief law enforcement officer of the United States. In closing, let me recall one of the most moving and memorable experiences of my service as Attorney General. It was in 1989, when it was my privilege to lead the Department of Justice during the celebration of the 200th anniversary of the creation of the Office of the Attorney General of the United States. Nearly all of the living Attorneys General, stretching all the way back to President Eisenhower's first Attorney General, Herbert Brownell, returned to the Department of Justice for an historic commemoration of that milestone. We were also honored to have Ethel Kennedy, the widow of the 64th Attorney General, Robert F. Kennedy, in whose honor the main Justice Department building is now appropriately named. The group included distinguished Attorneys General appointed by presidents of both parties, including such giants as William Rogers, Nicholas Katzenbach, Elliot Richardson, Edward Levi, and Griffin Bell. I am confident that when Michael Mukasey takes office as our Nation's 81st Attorney General, the Department of Justice can and will embark on a time of healing, renewal and exemplary leadership. I am equally confident that, ultimately, when he leaves office, Judge Mukasey will have earned his own place among the top ranks of our Nation's finest Attorneys General. Let me add, before I close, that I would like to associate myself with the views of Senator Specter, expressed this morning in the Wall Street Journal, calling for Judge Mukasey, if confirmed, to end the Department of Justice's assault on the attorney-client privilege in corporate investigations, which began in the Clinton administration and has been carried forward in this administration. A broad coalition, which reaches from the Chamber of Commerce and the National Association of Manufacturers, on the one end, to the American Bar Association and the American Civil Liberties Union, supports action to restore and reinvigorate this historic privilege, and I hope that Judge Mukasey sees fit to give it his attention. Thank you, Mr. Chairman. I would be pleased to answer any questions that you may have for me. Senator Cardin. Thank you very much for your testimony. [The prepared statement of Governor Thornburgh appears as a submission for the record.] Senator Cardin. We'll now hear from Mr. Chuck Canterbury. President Canterbury joined the Fraternal Order of Police in 1984, when he, along with 11 other officers, chartered their local lodge. He served as a local lodge president for 13 years, during which time he was instrumental in starting the Lodge Legal Defense Plan, purchasing the first lodge building and starting the lodge insurance program. He began his service on the Grand Lodge Executive Board in 1995, when he was elected to the first of three terms as second vice president. During this time, he has worked to expand the police labor movement in the areas of our country which do not have collective bargaining rights. President Canterbury retired in January 2004 from the Horry County Police Department in Conway, South Carolina, where he most recently had oversight of the operations bureau. During his 25-year career as a police officer, he worked in the patrol division, the criminal investigation division, and served as the training division supervisor, during which he was certified as an instructor in basic law enforcement, firearms, chemical weapons, and pursuit driving. He earned his bachelor of arts degree from Coastal Carolina University. It's a pleasure to have you here, Mr. Canterbury. STATEMENT OF CHUCK CANTERBURY, NATIONAL PRESIDENT, FRATERNAL ORDER OF POLICE, WASHINGTON, DC Mr. Canterbury. Thank you, Senator. First of all, I'd like to thank the Judiciary Committee for allowing the Fraternal Order of Police, the largest police labor organization in the country, to have input on such an esteemed position, which has much responsibility in the area that I've spent my entire career. As the Nation's top law enforcement officer, we feel it's important, as the Nation's largest law enforcement organization, to be allowed this input. We're very pleased and I'd like to personally thank Senator Leahy for the invitation. As many of you know, we consider Senator Leahy to be a stalwart for law enforcement and the rank-and-file officers in this country, and we're very appreciative of his support and his request for us to be here today. In the matter of Judge Mukasey, he has a long and distinguished career in public service, which began with him becoming an Assistant United States Attorney in the Southern District of New York. In 1987, he was nominated for the Federal bench in that same district and was unanimously confirmed by the Senate, and he has spent the last 20 years as a Federal judge, including his last six as chief justice in one of the toughest, busiest and most prominent of our Nation's Federal courts. During this tenure, he oversaw some of the most important and complicated national security cases, including the successful prosecution of Omar Abdel Rahman, the blind sheik who plotted to destroy the World Trade Center in 1993. His handling of this case earned him widespread acclaim and respect from his peers and the nation's law enforcement community. In fact, the U.S. Court of Appeals for the Second Circuit specifically praised him, noting he demonstrated ``extraordinary skill and patience'' during that case and superbly handled challenges far beyond those normally endured by a trial judge. Judge Mukasey has issued the first ruling in the legal challenge brought by Jose Padilla, and it was a very thoughtful and well reasoned decision. He ruled that the President does, in fact, have the legal authority to detain as enemy combatants citizens captured during a time of war, but, yet, he also ruled that those citizens should have monitored access to an attorney. His deft handling of the issues in the Rahman and Padilla cases and the challenges he faced as the presiding judge in these cases prompted him to write an article in the Wall Street Journal, which argues that current statutes and institutions which comprise the U.S. legal system are ill suited to handle the prosecution of terror suspects without compromising homeland security or foreign intelligence sources. Clearly, in this decision, he has given a great deal of consideration to the challenges faced by our legal system and our law enforcement community when it comes to threats from terrorists. In the opinion of the Fraternal Order of Police, this strongly recommends Judge Mukasey for the position of U.S. Attorney General, as well as having him there when we're facing the challenges that we are currently on the war on terrorism. The FOP has had the honor of representing rank-and-file law enforcement officers in many localities and States and we are the bargaining unit for over 300,000 officers in this country. And for this reason, our interest in the cases that Judge Mukasey had been involved in over his career have not been limited to just his high profile cases related to national security. We are extremely satisfied with his record on the matters in criminal law that involve most of our membership and the labor organizations that we represent. We are also keenly interested in those cases which he has had to make rulings which touch the rights of employees, particularly public employees, and we are pleased to report to this committee that he demonstrated just as much skill and evenhandedness in those cases that we were able to examine as he did in the cases that generated nightly headlines. His distinguished career has earned him the respect of the law enforcement community and we are very much in favor of his appointment and his confirmation by the U.S. Senate. And we would be glad to answer any questions for you, Mr. Chairman, or any member of the committee. Senator Cardin. Mr. Canterbury, thank you very much for your testimony. [The prepared statement of Mr. Canterbury appears as a submission for the record.] Senator Cardin. We'll now hear from Admiral John Hutson. Admiral Hutson attended Michigan State University, where he received his BA. Upon graduation, he was commissioned in the United States Navy. He then went on to graduate from the University of Minnesota Law School in 1972. In 1973, he was assigned to the Law Center at Corpus Christi, Texas, where he served as chief defense counsel and chief trial counsel. In 1980, Admiral Hutson attended Georgetown University Law Center, where he earned a master's of law degree in labor law. He was then assigned as legislative counsel in the first of three tours in the Office of Legislative Affairs for the Navy. Admiral Hutson assumed duty as executive officer of the Naval Legal Services Office in Newport, Rhode Island in 1987. In 1989, he returned to Washington, DC to serve as a staff judge advocate and executive assistant to the Commander-Naval Investigative Command. In August 1989, Admiral Hutson moved to the Office of Legislative Affairs as Director of Legislation. Between October 1992 and November 1993, he was assigned as the executive assistant to the judge advocate general of the Navy and, in November 1993, he resumed duty in the Office of Legislative Affairs. In August 1994, he assumed duty as Commanding Officer-Naval Legal Services Office, Europe and Southwest Asia, located in Naples, Italy. In July 1996, Admiral Hutson returned to the Naval Justice School as commanding officer. He was promoted to the rank or rear admiral and assumed duties as the judge advocate general of the Navy in May 1997. Admiral Hutson was awarded the Distinguished Service Medal, the Legion of Merit, with three gold stars, the Meritorious Service Medal, with two gold stars, Navy Commendation Medal, and Navy Achievement Medal. It's certainly an honor to have Admiral Hutson with us today. STATEMENT OF REAR ADMIRAL JOHN D. HUTSON, JAGC, USN (RET.), PRESIDENT AND DEAN, FRANKLIN PIERCE LAW CENTER, CONCORD, NEW HAMPSHIRE Admiral Hutson. Thank you, Senator Cardin. I probably should have sent a shorter bio in to the committee. Senator Cardin. It was very impressive. You deserve the entire introduction. Admiral Hutson. Thank you. And thank you to the committee for inviting me. I have a written statement that I'd request be made a part of the record. Senator Cardin. Your entire statement will be made part of the record, as will all of the witnesses' entire statements be made part of our record. [The prepared statement of Admiral Hutson appears as a submission for the record.] Admiral Hutson. Thank you, Senator. I testified a few years ago in opposition to the nomination or confirmation of the former Attorney General, along with my good friends, Harold Cole at Yale and Doug Johnson at the Center for Victims of Torture. Unfortunately, our concerns at that time turned out to be prescient. I'm not here today to testify in opposition at all to the confirmation, but, rather, to simply highlight some of the concerns that I have and what I believe to be important areas of consideration. And I'd like, first of all, I guess, to make two points, which may perhaps seem to be unrelated, but, in fact, are very much related. One is a point that virtually all the witnesses have made and it can't be gainsaid, which is that the United States is a country of laws. We adhere to the rule of law, or we should try to, and that there's no one more important in that regard than the Attorney General of the United States. The second point that I think is related to that is that most of the great nations in history that have failed have failed as a result of foreign and domestic misadventure. Our adventure right now, foreign and domestic, is the so-called global war on terror, which I think is actually three different wars. But in that struggle, the enemy cannot defeat us militarily. They don't have the lift, they don't have the command, control, communications. They don't have the weapons systems. They can't defeat us militarily. Winning for the enemy is to cause us to change, to bring us down to his level, to cause us to be something different than what we have been. Our great strength is support of human rights and the rule of law. Thomas Paine said that ``The cause of America is the cause of all mankind.'' The great, more recent geopolitical commentator, Bono, said that ``America isn't just a country, it's an idea.'' We are engaged in an asymmetric war. In an asymmetric war, the strategy is to pit your strength against the enemy's weakness, unlike World War II, for example, where it was often strength against strength. Our great strength is our ideals. Thomas Paine and Bono had it right. The enemy is abjectly devoid of ideals. So the enemy can't defeat us, certainly can't defeat us militarily, but we can commit national suicide by disarming ourselves of our ideals, and there are lots of unfortunate examples of how we have started down that road. The Bybee torture memo, the Gonzales memo with regard to the Geneva Conventions, suspension of habeas corpus, combatant status review tribunals, Guantanamo and indefinite detention, lots and lots and lots of examples of torture. We can all say that the United States doesn't torture, but all you've got to do is read the newspapers and you see lots of examples of it. And, more recently, the CIA authorized enhanced interrogation, a lovely euphemism, justified by secret memos, legal opinions from the Department of Justice. Let me give you some examples of where that road is not. Going back to 1950, the United States--this is the armed forces officer--the United States abides by the laws of war. Its armed forces and their dealing with all peoples are expected to comply with the law of war, in spirit and letter. Wanton killing, torture, cruelty or the working of unusual and unnecessary hardship. We all talk about torture. Back then, they were talking about the working of unusual, unnecessary hardship on enemy prisoners or populations is not justified under any circumstances. Article 93 of the Uniform Code of Military Justice, Cruelty and Maltreatment. Any person subject to this code is guilty of cruelty toward or oppression or maltreatment of any person, subject to his orders, shall be ordered punished, as a court- martial may direct. Common Article 3 of the Geneva Conventions, the following acts are and shall remain prohibited at any time and any place whatsoever, including, among others, outrages upon personal dignity, in particular, humiliating and degrading treatment. The Supreme Court never said part of Common Article 3 applies. The Supreme Court said Common Article 3 applies. That includes outrages on personal dignity. We don't need a measured repudiation of those definitions of torture as being mistakes or unnecessary. We need a clarion call. We need a ringing, unequivocal repudiation of those definitions, of what has happened, that is so strong that it brings tears to your eyes and makes small children wince in its force. We are not engaged in an existential struggle here, unless we make it so. Only Americans can make America change. If we falter now or cower as a Nation in the face of this adversity, if we disarm ourselves, we don't deserve the gifts that were given to us by those early patriots or by the world's greatest generations. And it's the Attorney General who, to mix metaphors, stands at the pinnacle and will make the decision whether we're at a pendulum or a plateau. Thank you very much, Mr. Chairman. I welcome your questions. Senator Cardin. Thank you for your testimony and thank you for your service to our country. The next witness is Professor Dawn Johnsen. Professor Johnsen attended Yale College, where she received her BA in economics and political science. She graduated summa cum laude and was a member of the phi beta kappa. She then attended Yale Law School, where she received her JD. After law school, Professor Johnsen clerked for the Honorable Richard Cudahy in the U.S. Court of Appeals for the Seventh Circuit. A year later, she joined the American Civil Liberties Union as a staff counsel fellow. After leaving the ACLU, she spent 5 years as legal director for NARAL. In 1993, she joined the Department of Justice as Deputy Assistant Attorney General and then became acting Assistant Attorney General for the Office of Legal Counsel. The Assistant Attorney General for the Office of Legal Counsel is the fifth ranking Department of Justice official, who serves as legal advisor to the President and the executive branch, supervising about 24 lawyers and advising the counsel to the President, the Attorney General, and the general counsels of the various executive departments and agencies. In 1998, Professor Johnsen became a professor of law at Indiana University School of Law, where she teaches constitutional law, separation of powers, and the First Amendment. Professor Johnsen has testified before Congress, is a frequent speaker at national conferences, and has appeared on many national television and radio news shows. It's a pleasure to have you here. STATEMENT OF DAWN JOHNSEN, PROFESSOR, INDIANA UNIVERSITY SCHOOL OF LAW, BLOOMINGTON, INDIANA Ms. Johnsen. Thank you. Good afternoon. I'm very glad for this opportunity to talk with you today about the Department of Justice. I had the great privilege of serving there at the Office of Legal Counsel, OLC, for short, for 5 years, including as the Acting Assistant Attorney General heading that office and I care deeply about its integrity. OLC's core function is to provide the President and other executive branch officials with the legal advice they need to act lawfully. The work of OLC, under the current administration, has been dangerously compromised. Excessive secrecy makes it impossible to fully assess the problem, but we do know that on at least some counterterrorism matters, OLC has abandoned its traditional role and instead has facilitated policies that do not comply with the law. Former head of OLC, Jack Goldsmith, who served in 2003 to 2004, wrote recently that some Bush-era OLC opinions ``were deeply flawed, sloppily reasoned, over-broad, and incautious in asserting extraordinary constitutional authorities on behalf of the President.'' Goldsmith correctly notes that even a deeply flawed OLC opinion is akin to a get-out-of-jail-free card, because it is virtually impossible to prosecute someone who relied on an OLC opinion. Congress should respond to these failures by demanding public accountability, specifically, the release of opinions, and the restoration of OLC's tradition of independent legal analysis. I'd like to suggest, as a framework for that, a statement of 10 principles to guide the Office of Legal Counsel. A group of 19 former OLC lawyers coauthored this statement in response to the infamous 2002 OLC torture memo, in the hopes of helping to prevent any future recurrence of that debacle. The principles state that they are drawn from the longstanding practices of the Attorney General and the Office of Legal Counsel across time and administrations. I have submitted the entire statement of principles with my written testimony and now would like to highlight just two of those principles. The first and most fundamental principle, reads: ``When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies.'' In short, OLC has to be prepared to tell the President no. I want to stress that saying no does not mean disabling the government from meeting national security threats. I deeply appreciate the Department of Justice's critical role in protecting our Nation from terrorism. It does mean, though, helping the President to meet those threats and to proceed in a lawful manner. In the Bush administration's most controversial policies-- think about warrantless domestic surveillance, the establishment of military commissions, coercive interrogations to the point of torture--the critical question in all of these matters was whether the President would act unilaterally and largely in secret, skirting applicable legal requirements, or whether he would comply with the constitutional process for lawmaking by submitting his recommendations for change to Congress. The President consistently has chosen to go it alone. The second principle I'd like to mention, and I want to state this most clearly and emphatically, is that the Department of Justice must avoid secret law. And I quote from the principle, ``OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure.'' Of course, the executive branch, at times, has legitimate and even compelling needs for secrecy, but public explanation is critical any time the executive branch does not fully comply with a Federal statute or interprets a statute in a way that would surprise Congress. Recent reports suggest this may be the case with the recent ban on cruel, inhuman and degrading treatment. Congress cannot effectively monitor and regulate the government unless it knows how the executive branch is interpreting and implementing the laws Congress already has enacted. Congress needs those secret OLC opinions that interpret the Detainee Treatment Act. It pains me to see what has happened to the Department of Justice, an institution that I greatly esteem, which is populated by many, many fine lawyers. Congress and the next Attorney General must confront the reality that the problem ultimately lies not with DOJ, but with the President. Numerous reports confirm that the President and the Vice President and their top advisors have been deeply hostile to any checks on their counterterrorism policies. The next Attorney General will face great pressures and he will need Congress's strong support to do the right thing. He should scrutinize OLC's work, rescind flawed opinions, publicly release many of the opinions, and restore OLC's traditional role through publicly announced principles and procedures. In conclusion, this committee should engage in aggressive oversight to ensure all of this is accomplished and, beyond this, that the executive branch complies with the laws. Thank you. Senator Cardin. Thank you very much for your testimony. [The prepared statement of Ms. Johnsen appears as a submission for the record.] Senator Cardin. We'll now hear from Mr. Theodore Shaw. Mr. Shaw is the Director, Counsel and President of the NAACP Legal Defense and Education Fund. Mr. Shaw joined LDF in 1982. He directed LDF's education docket and litigated school desegregation, capital punishment, and other civil rights cases throughout the country. In 1990, he left LDF to join the faculty of the University of Michigan Law School, where he taught constitutional law, civil procedure, and civil rights. In 1993, on a leave of absence from Michigan, he joined LDF as associate director-counsel. Mr. Shaw graduated from Wesleyan University with honors and from Columbia University School of Law, where was the Charles Evans Hughes fellow. Upon graduation, Mr. Shaw worked as a trial attorney in the Civil Rights Division of the United States Department of Justice from 1979 until 1982. He litigated civil rights cases throughout the country, at the trial and appellate levels, and in the U.S. Supreme Court. Mr. Shaw resigned from the Justice Department in protest of the Reagan administration's civil rights policies. The National Bar Association Young Lawyers Division recently presented Mr. Shaw with the A. Leon Higginbotham, Jr. Memorial Award. He's also received the Lawrence A. Wien Prize for Social Justice from Columbia University. He was awarded the Baldwin Medal, the highest honor given by the Wesleyan University alumni body, for extraordinary service to the university and the public interest. He served on the Wesleyan Board of Trustees for 15 years and was senior vice chair of the board when he retired from the board in June 2003. Mr. Shaw, it's a pleasure to have you before our Committee again. STATEMENT OF THEODORE SHAW, DIRECTOR, COUNSEL & PRESIDENT, NAACP LEGAL DEFENSE AND EDUCATION FUND Mr. Shaw. Thank you, Senator. As you've noted, I started my legal career with the Justice Department in the Civil Rights Division about 28 years ago, and it was a great place to work. It was a dream job. It was a wonderful start for a young lawyer. And what I was conscious of, as well as all of my colleagues, was the great tradition of the Justice Department and, particularly of the Civil Rights Division. I recently attended a reunion of alumni of the Civil Rights Division here in Washington, DC and one of the tragic things about that reunion--the reunion, of course, itself was not tragic, but it was tragic that not one person from the Civil Rights Division or the Justice Department representing this administration was present. That said volumes about the breach that exists between those who served at the Justice Department in the Civil Rights Division under Republican and Democratic administrations alike and the present leadership of the Justice Department and the Civil Rights Division. And I hope--I am sure that that's something that will change. There's a lot of healing that needs to be done and a lot of restoration within the Civil Rights Division and within the Justice Department. The core mission of the Civil Rights Division at its inception was the battle against racial discrimination, particularly as it was visited upon African-Americans. Now, of course, the mission of the Civil Rights Division is much more expansive than that. It represents the interests of all Americans, indeed, all people in this country and protects them against discrimination. So while the Division's work has expanded, as it should have, and it does work that involves gender discrimination, discrimination on the basis of disability or people who are institutionalized, we believe that there is a manifest imbalance in the Civil Rights Division's work that has cropped up in recent years. The Division does relatively little work on behalf of African-Americans. To put it bluntly, I think most African- Americans who experience racial discrimination do not feel like the Justice Department is a place to which they can go to take their problems and know that their interests will be protected, and I lament that. While in office in the last six and a half years, the Department has brought only five cases including allegations of racial discrimination against African-Americans under Section 706 of Title 7. At the same time, it's brought three so-called reverse discrimination cases on behalf of white claimants. Now, I want to be clear, I am not suggesting nor would I ever suggest that white individuals cannot be discriminated against or that the Justice Department should not protect their interests. But I think that that fact or those facts speak something about a policy difference that the Justice Department has adopted as compared to prior administrations. Similarly, it has brought only one Section 2 Voting Rights Act case on behalf of African-Americans. That case was filed last year. I draw the Committee's attention, Senator, to the fact that the Justice Department has also, through its Civil Rights Division, abdicated its responsibilities when it comes to voting rights. There are several now well publicized instances in which the department has ignored the advice and analysis of career attorneys in troubling circumstances. I understand that lawyers who are career attorney don't run the Division or the Department, but these decisions have been reasoned not on the basis of law, apparently, but on politics. In one instance when Georgia enacted voter I.D. requirements, the Justice Department pre-cleared. That requirement was then struck down by no less and no fewer than five courts, three Federal court decisions and two State court decisions. Let me close by pointing out that perhaps nothing is more telling than decisions, as a matter of policy, by the Department, by the Division, not to enforce civil rights laws using the most aggressive interpretation of the laws that the courts and Congress have made available, and my testimony gives several examples of this. It is my hope that should Judge Mukasey be confirmed as Attorney General, that the substance and the integrity of the Justice Department and particularly of the Civil Rights Division will be restored. The Justice Department is the crown jewel in the executive branch when it comes to the law and I hope that that status is recaptured. I must say, in closing, also, after sitting here and listening to the very eloquent testimony of Admiral Hutson, that I recall, after 9/11, I was interviewed and I was asked about the aftermath of 9/11 and what I said then was that my fear was that even if we could win the war on terror, however that's defined, that we might lose our soul as a Nation, and I think that is exactly the threat that we are facing now, as Admiral Hutson has very eloquently pointed out. I want to join him. I hope that under new leadership, the Department, again, restores itself and our Nation to where we should be when it comes to the rule of law. On behalf of the Legal Defense Fund, it is my earnest hope that, if confirmed, Judge Mukasey will restore the Department to its long and proud tradition as an institution that serves the American people well. Thank you. Senator Cardin. Thank you, Mr. Shaw. [The prepared statement of Mr. Shaw appears as a submission for the record.] Senator Cardin. I'm going to recognize Senator Specter. Senator Specter. Thank you, Mr. Chairman. I just wanted to stop by to thank you for coming in and to say that there are so few people in attendance because people have so many responsibilities in so many directions. I just left the floor. We had a series of votes. I'm ranking on the Subcommittee of Appropriations on Labor, Health, Human Services and Education, and I have to stay on the floor. But I've had summaries of all of your testimony and we really do appreciate what you have to say. I heard what Mr. Shaw said about enforcement of the Civil Rights Act, and I can tell you that that's a major concern of the Committee and the Senate and the House, that a great deal more needs to be done. Reference was made to what Admiral Hutson has done on interrogation tactics, and there's a lot of concern here on habeas corpus and the whole range of Executive power, which we've taken a look at. And I know that there's a strong consensus in favor of Judge Mukasey and we're very hopeful that he will make vast improvements, but I think this Committee was very instrumental in having the change made in the Department of Justice from the oversight hearings which we held. If you had to summarize the difference between Attorney General Gonzales, former Attorney General Gonzales and Judge Mukasey, it would be on habeas corpus. Attorney General Gonzales inexplicably said habeas corpus was not a constitutional right and Judge Mukasey said you can't have a limitation on habeas corpus if it's not a right, the obvious point, and I think that's illustrative of the takeoff. So we thank you for coming in and what you have contributed, and, again, my regrets, because I have to go back to the floor. Thank you, Mr. Chairman. Senator Cardin. Thank you, Senator Specter. Appreciate your comments. We'll now hear from Mary Jo White. Mary Jo White was the first woman to be a U.S. Attorney from the Southern District of New York, serving from 1993 to 2002. When Ms. White left her post as a U.S. Attorney from the Southern Division of New York in January 2002, she was acclaimed for her nearly 9 years as a leader of what is widely recognized as the premier U.S. Attorney's office in the nation. She has supervised over 200 Assistant U.S. Attorneys in prosecuting some of the most important national and international matters, including complex white collar and international terrorism cases. She is noted for having overseen prosecution of John Gotti and the terrorists responsible for the first World Trade Center bombings in 1993. She's a fellow of the American College of Trial Lawyers and the International College of Trial Lawyers, a recipient of numerous awards, and is regularly ranked as a leading lawyer by directories that evaluate law firms. In addition, Ms. White served as Director of the NASDAQ Stock Exchange and on its executive, audit and policy committees between 2002 and February 2006. She's also a member of the Council on Foreign Affairs. Ms. White received her bachelor's of arts degree from the College of William and Mary and later attended Columbia University School of Law, where she received a JD. Currently, Ms. White is the chair of Debevoise and Plimpton's 225-lawyer litigation department. Ms. White, it's a pleasure to have you before us. STATEMENT OF MARY JO WHITE, PARTNER, DEBEVOISE & PLIMPTON, LLP, NEW YORK, NEW YORK Ms. White. Thank you very much, Senator Cardin. It's my privilege to speak on behalf of the nomination of Judge Michael Mukasey. He is a man of great intellect and integrity, with an unswerving commitment to the rule of law. He is independent, fair minded, and has a wealth of relevant experience from his years of service on the bench, in the private sector, and as an Assistant United States Attorney in the Southern District of New York. There could not be, in my view, a stronger or better nominee to head the Department of Justice, particularly at this time, when the Department is in need of a strong and respected leader, as our country faces one of the greatest challenges in its history, to secure the Nation against the threat from Al Qaida and related terrorist networks and to do so consistently with the rule of law and our principles as a free and democratic society. I have no doubt that Judge Mukasey, if confirmed as Attorney General, will meet that challenge on behalf of the Department of Justice, effectively, intelligently and with sensitivity to all of the complex issues that are inherent to this unique challenge to which there are no easy or obvious solutions. I am equally confident that Judge Mukasey will be a superb leader of the Department in carrying out its many other important responsibilities and priorities that are vital to the rights, safety and well-being of the American people. The way I know Judge Mukasey is that when I served as U.S. Attorney in the Southern District of New York from 1993 to 2002, I had the privilege of observing him directly and through the eyes of my 200 Assistant United States Attorneys, and saw him supervise or preside over numerous cases with skill, with dignity and with absolute fairness and evenhandedness with respect to the parties before him. As a judge, he embodied all of those qualities of intelligence, temperament, preparedness and fairness that bring high credit and honor to our American system of justice. In each encounter I have had with Judge Mukasey, I have come away with deep admiration for him as a person, as a lawyer, and as a public servant. I, thus, join with the many others who strongly support his nomination, including representatives of the defense bar, as well as prosecutors. As has been mentioned by Senator Kyl, I believe, this morning, I did, also, observe Judge Mukasey preside over one of the most complex and difficult trials I think in our history, and that was the terrorism trial involving the head of the Al- Gama'a terrorist organization, Sheik Omar Abdel-Rahman and nine of his codefendants, who were charged with an horrific plot to blow up, in a single day, the tunnels connecting New York and New Jersey, the George Washington Bridge, the United Nations, and the FBI's headquarters in Manhattan. In this day of terror trial, Judge Mukasey was called upon to deal with and decide novel and some of the most difficult issues ever faced by any court. He did so and he did so while keeping his eye on the primary ball in any trial, and that is to ensure a fair proceeding for all parties. What Judge Mukasey learned, substantively and procedurally, from this trial, I believe, will serve him very well as Attorney General, as he shapes and guides the Department of Justice's role and policies in addressing the grave threat posed by radical Islamic terrorism. Another daunting challenge that any Attorney General has to do and face is to oversee and manage the over 100,000 employees of the Department of Justice and its many programs and component parts. While Judge Mukasey, of course, has not been previously called upon to manage an organization of the kind and size of the Department of Justice, very few have, I believe he brings to that task both the right qualities and relevant experience. He is, first and foremost, a leader with credibility, who leads by example and motivates by example professionals to do the best work of which they are capable. He is organized, efficient, works extremely hard, and has the ability and judgment to prioritize and delegate wisely. As chief judge of the United States District Court in New York for 6 years, Judge Mukasey was called upon to manage what is our oldest and largest Federal court, with over 40 active and senior judges, 15 United States magistrate judges, 11 bankruptcy judges. The Southern District of New York has one of the busiest and most complex dockets in the country, typically over 12,000 new filings, civil and criminal, each year. The chief judge in the Southern District of New York is ultimately responsible for, among other things, the budget, security issues, personnel, infrastructure, subcommittees on various issues affecting the court, litigants and juries, interagency communications, and docket administration. In addition to having responsibility for these issues, Judge Mukasey, as chief judge, guided the Federal court in the Southern District of New York from a paper filing system to the electronic case filing system and put in place the first emergency preparedness program for a Federal court. As it happened, Judge Mukasey was, fortunately, the chief judge of the Southern District of New York on September 11. His leadership during this time of extreme crisis has been accurately described by many as heroic. The Southern District of New York's courthouses in Manhattan are located just a few blocks from where the World Trade Center stood. All of us working in the vicinity of the courthouse complex on September 11 personally witnessed the horror of that day and were required to respond to the physical and emotional issues of our staffs and then work to try to restore normal functioning in the aftermath of the most abnormal and jolting experience any of us had ever encountered. Judge Mukasey directed that the two Manhattan Federal courthouses be closed immediately, but kept the court running from the White Plains courthouse 30 miles north of the city. He then reopened the Manhattan Federal courthouse on September 18, 2001, fully for business, despite badly disrupted phone systems, computer systems, not to mention the emotional stress of the court's employees. But as the district executive of the southern district who works for the chief judge observed, ``Almost everyone who worked at the courthouse was back at their desk.'' It was very important to come back downtown and to come back to work. ``Everyone wanted to be together, to do our best to show that life would go on in New York.'' Well, for the Southern District of New York, Judge Mukasey and the district executive staff he managed made that possible. In closing, I believe that however he is measured, Judge Mukasey will be a superb Attorney General. He will hit the ground running at the Department of Justice and deal effectively with its full range of priorities and problems. He will lead and inspire the career lawyers at the Department and in the field, as well as the United States Attorneys. He will remain the person he has always been, a dedicated, hardworking public servant, with the ability and humility to do an outstanding job, of which I'm sure we will all be proud. Thank you very much. Senator Cardin. Thank you very much for your testimony here today. [The prepared statement of Ms. White appears as a submission for the record.] Senator Cardin. We'll now hear from Judge John Martin. Judge Martin, a member in Martin and Obermaier, LLC in New York City, was a United States District Judge in the Southern District of New York from 1990 to 2003 and worked very closely with Judge Michael Mukasey in that capacity. Prior to his judgeship, Judge Martin served as the United States Attorney for the Southern Division of New York from 1980 to 1983, worked as an assistant to the Solicitor General of the United States in Washington, DC, and worked in private practice. A native New Yorker, Judge Martin graduated from Manhattan College and Columbia Law School, and clerked for the Honorable Leonard P. Moore, United States Court of Appeals for the Second Circuit. Judge Martin has received awards for his outstanding service, including the Emory Buckner Award from the Federal Bar Counsel and the Judge Edward Weinfeld Award from the New York County Lawyers Association. Judge, it's a pleasure to have you before our committee. STATEMENT OF JOHN MARTIN, MEMBER, MARTIN & OBERMAIER, LLC, NEW YORK, NEW YORK Judge Martin. Thank you very much, Senator Cardin. I'm honored to be here and very pleased to have the opportunity to express publicly my high regard and affection for the nominee for Attorney General, the Honorable Michael B. Mukasey. I've known Mike Mukasey for over 30 years, but I got to know him best when we served together on the Southern District of New York. Michael Mukasey is one of the most decent human beings I know and I think he possesses the qualities of intellect and humanity that we should want in a person to serve as Attorney General of the United States. We worked together--I was the chair of the Clerks Committee while he was chief judge, and we worked closely together during that time and I saw firsthand his compassion and his leadership. During that period, our clerk of the court died after a long battle with cancer. No one could have been more caring than Judge Mukasey was of the concern for our clerk. No one could have been more compassionate in that situation. In addition, as Mary Jo has pointed out in some detail, he was an able leader, someone who sought advice, and who inspired those around him to do their best. He also had the unenviable task of trying to organize and lead 40 United States district judges, each of whom was appointed for life. Judge Mukasey handled that task with grace and when he stepped down as chief judge, he left with the respect and admiration of all his colleagues. To some extent, no individual is qualified to be Attorney General, but the same can be said of United States district judge, because in both cases, you're faced with areas of the law with which you have had no experience in private practice. The breadth of United States law is staggering and the Attorney General and the district judge have to deal with that. But you learn from that how to listen to experts, to weigh what they have to say, and to make judgments as to what is the right thing in the situation. In addition, and most important for someone who is to become the Attorney General, you learn that the law is above politics and that your personal political views have no place in the administration of justice. Michael Mukasey was a superb United States district judge and I have no doubt that, if confirmed, he will be a superb Attorney General. He possesses both the intellectual ability and the openness of mind that will serve him well in formulating the policies to be carried out by the attorneys in the Department of Justice. While I never had the pleasure of appearing before Judge Mukasey, I have had the pleasure of reading his opinions. He was a thoughtful and intelligent jurist. I also have one experience with him that I think demonstrates that he possesses one of the most important qualities for someone who would be the Attorney General, and that is the willingness to rethink a position. Several years ago, I decided a case, and I forget what the issue was, but there was only one opinion on point and it was by Judge Mukasey, and it was a rare case in which I disagreed with him. And I wrote an opinion and said I have great respect for Judge Mukasey, but I disagree with him here. A year or two later, he sent me a copy of an opinion he had just written in a similar case, in which he referred to his prior opinion and my opinion, and said, ``I've changed my mind. I think that the other is the right law.'' I don't know many judges who possess both the unique quality of self-confidence and humility that would allow them to admit publicly that they were changing a position. But that's, I think, the quality that you have to have if you're going to lead something like the Department of Justice and be faced on a daily basis with complex and difficult questions to decide. As you might expect, Judge Mukasey's nomination has been the subject of considerable comment in the New York legal community. I can tell you that the unanimous view of everybody with whom I have spoken, friends of Judge Mukasey, former colleagues, and, I think, particularly important, lawyers who appeared before him, is that Michael Mukasey will provide the type of leadership necessary to ensure that the American people have confidence that justice is being administered fairly and with integrity. Thank you very much. [The prepared statement of Mr. Martin appears as a submission for the record.] Senator Cardin. Thank you all very much. I very much appreciate your testimony and I think it's extremely helpful to our committee. Governor Thornburgh, I want to just ask you sort of a loaded question. If Attorney General Mukasey calls you the day after he's sworn into office and asks advice what he should do as some of his first measures in order to restore the type of confidence, not only within the Department, which is in trouble today, but public confidence in the Department of Justice, what type of advice are you going to give him? Governor Thornburgh. I don't think I could do much better than the steps that he outlined in his testimony, which really involved taking charge of the Department, and I think that that's the important thing that has to be done, to exhibit those qualities of leadership that I think he's fully capable of, ensure that the present vacancies are filled expeditiously and with people of equal caliber to his own, to visit with the leadership of the Department personally, not just the leadership at the top, but in the various sections and units within the Department. It's a massive operation and I, frankly, enjoyed, when I was in office, the institution of kind of brownbag lunches with the rank-and-file staff lawyers to kind of get their view of what was going on. So that I think his task will be really to grab the reins of the Department, to make clear that he's in charge, and to articulate, as often as possible, to the public, through the media and through appearances, his core values, expressed so eloquently during these hearings, that indicate his commitment to the rule of law, his commitment to fairness and justice, and, in every one of the operations that the Department carries out, make clear that he means business when it comes to reinvigorating the Department's very important mission. Senator Cardin. Would you be advising him that--there's so many vacancies in the top positions in the Attorney General, Department of Justice. Would high on your list be to try to influence appointments quickly at these top positions, consistent with his priorities within the Department of Justice? Governor Thornburgh. I would think that has to be a priority. I deal, from time to time, with the Department of Justice and lately it's discouraging to find that there's nobody home when it comes to key decisions being made. That's the frustration of a practitioner, but I'm sure it's also a frustration within the Department. And I think one of his highest priorities, which I'm sure he recognizes and will carry out, is to seek out advice and recommendations from his long and rich career of persons who can fill those key positions. Obviously, that will be done in tandem with the White House and to see that those positions are filled and that the Department is in full running order just as quickly as possible. Senator Cardin. Thank you. Admiral Hutson, I must confess that I concur completely in your testimony. I found it well articulated and some of the things that I think we try to say here in the Senate, but not quite as effectively as your testimony, and I thank you for that, because I think it added greatly to the record here. I also believe it won't surprise anyone here to learn that Judge Mukasey did an excellent job for our Committee as far as the frankness of his answers, as far as assuring us of his independence. But there was one area that I think many of us are concerned about and that is whether there will be an effective voice within the Attorney General to speak out against the United States condoning any forms of torture. I say that because Judge Mukasey was very clear that torture is not allowed. It's unconstitutional and against our laws. He made it very clear, also, that he would pursue holding accountable anyone who violates those statutes or the Constitution, even if that person was operating under the direction of someone in our military or in the White House. But then he was less than clear as to circumstances in which conduct would not fall within the prohibited areas, including some that are pretty obviously commonly considered to be torture. There's also the international perception that the United States is playing on definitions here rather than leading and saying clearly that we won't tolerate any forms of conduct that traditionally has fallen within torture. So I would like to get your assessment as to how you felt. I don't know if you listened to the testimony or not. Admiral Hutson. Yes, I did, Senator. Senator Cardin. I would welcome your thoughts on that. Admiral Hutson. Thank you, Senator. The United States, as a Nation, and the Attorney General, as an individual, has to be absolutely unequivocal. We can't dance around definitions. We can't dance around what is torture and what's cruel and what's inhumane and what's degrading, as we have done. In the past, we never had to worry about that, because were never close to the line. We were always a long ways away from the line. But now we want to be right up next to the line. So, suddenly, what those definitions are becomes important. I think that is a terrible mistake for this country, because that same cleverness is going to come back to bite our troops who because it's our troops who are forward deployed. When Eisenhower and Marshall and Senator Vincent and others looked at the Geneva Conventions, they were not looking at them as a limitation on our behavior. They were looking at them as a limitation on the enemy's behavior. They were there to protect U.S. troops. That's what we were thinking. Now, suddenly, we're looking at ways to dance around it so that we can engage in that kind of activity and as then Legal Counsel Gonzales said, so that we can avoid the War Crimes Act. My goodness, how did we get to that point? Torture is the method of choice of the lazy, the stupid, and the pseudo-tough, and that should not be the United States. No matter how you define torture, it's unconstitutional, it violates statutes, it violates the UCMJ, it violates Common Article 3, it violates what your mother taught you, and it violates what you learned in kindergarten, and we ought not to be even close to it. Senator Cardin. Well, I thank you for that answer. One of the hats I wear in the U.S. Senate is the Senate Chairman of the Helsinki Commission, which deals with the human rights dimensions. And, historically, the United States has used that forum to promote action against inhumane treatment and torture by so many countries in our regions. I find that I'm spending most of my time trying to answer questions about conduct in our own country, whether it's Guantanamo Bay and the detaining of individuals there or whether it's the signing statements of the President on torture or whether it is dealing with the way that we treated prisoners in Afghanistan and Iraq. So I agree with you, I think we've lost our standing internationally on this issue and now that when we equivocate on definition, it is really subject to scrutiny and concern by the international community. Admiral Hutson. May I make one more point, sir? Other than perhaps rack and thumb screws, waterboarding is the most iconic example of torture in history. It was devised, I believe, in the Spanish Inquisition. It has been repudiated for centuries. It's a little disconcerting to hear now that we're not quite sure where waterboarding fits in the scheme of things. I think we have to be very sure where it fits in the scheme of things. Senator Cardin. Well, I am hopeful that once Judge Mukasey becomes more familiar--he didn't seem to be familiar with that. I hope during the question-and-answers that will still happen as part of the confirmation process, that we can get a clear view from the nominee that that is clearly a prohibited practice under not only our Constitution and our laws, but international standards of inhumane treatment. So I agree with you and I hope that we'll get that clarified. Professor Johnsen, I want to go back to a statement you made about the release of the opinions that have been made from the Office of Legal Counsel. Senator Specter, I thought, was pretty articulate and persuasive that if the U.S. Senate, if the Congress is to do its oversight, that we have to get access to the fundamental documents controlling activities within the executive branch. And if there's sensitivity to some of these documents, then we'll take it in a closed session, but that we need to have access to what is guiding executive actions. You were in that office. Are we being unreasonable in our request? Will this put an unreasonable restriction on the prerogatives of the President or the executive branch? Ms. Johnsen. Absolutely not. The issue, of course, of interrogation and torture, I think, is the perfect one in which to explore this. The Office of Legal Counsel, frankly, destroyed our Nation's reputation on the issue of torture with that infamous 2002 opinion. Congress responded very appropriately, in my view, with the Detainee Treatment Act, which made clear that no torture, no cruel, inhuman, or degrading treatment was permitted anywhere in the world by the United States. And when the President signed that into law, he had a reservation in the signing statement that caused Senator McCain to call him on it. Now, we hear that, I think, astonishingly, the Office of Legal Counsel, if reports are correct, has issued two more secret opinions interpreting that statute. How can Congress do its job? How can our constitutional democracy work if the President is interpreting statutes in ways that are flatly inconsistent with what Congress intended and with the words of the statute? How can Congress oversee the executive branch or legislate if it cannot get a straight answer from the President, from the Department of Justice, when asked, ``How are you interpreting cruel, inhuman, degrading? How are you interpreting torture? '' Let us see those legal opinions and if they do contain material, as you said, that would, in some way, jeopardize national security, that can be submitted in confidence to the Senate. I actually am not happy with excessive reliance on that option, I have to say. I think on this issue, the public needs to know how the President is interpreting these laws, regulating coercive interrogations. And so I would say if there are any portions that have to be protected, kept confidential, then a redacted version or a specially prepared version has to be provided to the American public so that we know and the world knows what our policy is on coercive interrogations. Senator Cardin. Well, I agree with you on that. I think it should be. I'm just trying to get to at least be able to evaluate the documents and if we have to establish procedures. I don't necessarily disagree with Senator Specter. If we have to make accommodations in order to get this matter moving forward, I think it's worth making accommodations so that we don't run into a constitutional challenge that could take too long in order to resolve. But I agree with you. I see no reason why this information cannot be made available to the public, if necessary, in a redacted form. It seems to me that should be able to be accomplished. There was one other issue that was brought up that you may have a view on or maybe other members of the panel, and that's an issue about the contempt citation that Judge Mukasey talked about. It seems to me that if there is a challenge, that we need certain documents, and the President believes that that is a part of his executive privilege, there needs to be a way that that can reach the courts. The only way that I know is for Congress--and it's a very serious matter for us to suggest the contempt citation and to move forward with it and get it completed. But at that point, it seems to me there should be little discretion within the Department of Justice in convening the jury, grand jury, and issuing the necessary indictments. Am I wrong on that? I mean, Judge Mukasey seemed to be very indefinite about whether he would--he would make an independent judgment as to whether the individual acted reasonably. Well, if you're in the executive branch, following what the President says, that's acting pretty reasonably, to me, even though the President may not be acting reasonably. Ms. Johnsen. Right. You might remember that Judge Mukasey actually cited an OLC opinion from the time I was there, as well as from earlier administrations, on this point. And so it is a very difficult matter. I think that there should be a way to get it before a court. Interestingly, Judge Mukasey said if the Department of Justice has issued an opinion to the President saying it's appropriate to assert executive privilege, then there's a very serious problem with the Department of Justice turning around and prosecuting somebody, and I agree with him on that. But I think the interesting thing about that is the Department of Justice should not have advised the President in the first place to assert executive privilege. I think that's where the problem is. The President has a constitutional obligation to accommodate Congress's needs for information and, on this particular issue, the President has not done so and I don't think the President has received accurate legal advice from the Department of Justice. But that's the point at which I think the problem occurs. I do agree with Judge Mukasey that it is difficult and I think a due process problem to turn around and prosecute somebody for doing what the Department of Justice said that person should do in the first place. The real problem, I think, is an erroneous assertion of executive privilege in the first place and not accommodating Congress's compelling need for information on this issue. Senator Cardin. Again, I think that's the right analysis. And Judge Mukasey did say that he would weigh in pretty heavily as to whether executive privilege should be asserted or not, and I agree with you. I don't believe that was done by the Attorney General in the assertions that were made in regards to the U.S. Attorney firings and other issues in which we have subpoenaed information. So, hopefully, the judge, as Attorney General, will be in the beginning stages and giving advice to the President, which I hope the President will follow, which leads to the question as to whether Judge Mukasey has the independence and strength to stand up to a pretty strong President, pretty strong-willed President. There's a lot of things you can say about our President, but he is strong-willed. So let me ask, Ms. White, if I could, and Jude Martin, you know him. How do you think he's going to fare standing up to a President who wants to do certain things that perhaps the judge thinks are inappropriate? Ms. White. If the circumstance presents itself, my money is on Judge Mukasey. He's one of the most independent, straightforward, strong individuals I know, totally principled. So if it comes to that, plainly, he will also be clear in his advice as to the right path, but if it comes to that, I have no doubt whatsoever he'll stand up. Judge Martin. I think serving as United States district judge, you're used to getting--understanding that people have to obey certain laws and that you've got to have the power to enforce them, and I don't think that Mike Mukasey is going to have any problem asserting his own views as to what's right and wrong. Senator Cardin. Well, I think restoring the independence of the Department of Justice is the first order of business. With the political interference, which has been acknowledged and under current investigation, that's going to be the first order of business. The second is being able to give independent advice and that's going to be another challenge. Third is establishing the type of priorities and, Mr. Shaw, I couldn't agree with you more about the disappointment with the Civil Rights Division, on the 50th anniversary of its creation. The number of cases that have been brought in regards to the voting rights to remove obstacles to participation, the disparate cases that have been brought, the few numbers in housing and employment have all been, I think, just shocking, in a way, that we've had a tradition, and, of course, the type of cases that the Civil Rights Division has entered have been on the wrong side, in my view, particularly when you look at the historic role of the Civil Rights Division in promoting rights for all individuals. So I hope that you can perhaps give us some guidelines as to what we should be looking for from the new Attorney General as it relates to the type of cases that you would like to see priority given to. Mr. Shaw. Senator, let me, first, correct something I may have said. I talked about the Georgia voter ID case. I might have said that that was before the Supreme Court. If I did, what I meant to say was that issue was up before the Supreme Court, but the issue is actually presented in a case out of Indiana. With respect to what the new Attorney General could do, there are a number of things. I think there needs to be, first, at least within the Civil Rights Division, but throughout the Department, a restoration of hiring in an apolitical way of career attorneys. I'm not talking about the political appointees, obviously. But I think that's vitally important to restore the Civil Rights Division and the Department's legal staff generally, to what they once were. I also think that it would be a good thing for the Attorney General and the Assistant Attorney General, whoever that might be, of the Civil Rights Division to have some dialog with some of the people who ran the Civil Rights Division under prior administrations, under both parties, as well as some of the career attorneys who have left the Department to get a sense of perhaps how the Department could operate to restore its credibility and integrity. With respect to substantive issues, we find ourselves in disagreement with the Department and in a position with the Department as adversaries, as often, if not more often, than we are allies. I don't expect that we're going to agree on every case, but to take the Seattle and Louisville cases, for example, the issue of voluntary school integration decided in June by the Supreme Court, there, the Justice Department, for the first time since the 1950s, since Brown, effectively came down against school desegregation, against integration. That is a reversal of historic proportions with respect to the Justice Department's role, and there are other instances in which we've been in adverse positions, where I think we ought not to be. Of course, we each have our point of view, but the Justice Department really has gone astray. As I said, I think that the Department needs to revisit the cases on behalf of African-Americans and Latinos that are out there that they're not bringing right now, that they're consciously not bringing. It's not that those cases aren't there, because we're asked to represent people in those cases all the time and we don't have the resources that the Federal Government has. We can't take on most of those cases. The EEOC still is overloaded with complaints. So the cases are there. The question is what the Justice Department's role is going to be. So that can be turned around, I think, fairly quickly if the lawyers are unleashed to do the investigations that they've wanted to do, that they have done, and if their suggestions or advice are overridden, as they will be sometimes, I suppose, it ought to be done on the basis of a legal analysis that has integrity and not on something that either gives the perception or the reality of a political decision. Senator Cardin. And I think, quite frankly, Judge Mukasey was comforting in his comments in that regard and, clearly, the failure to follow the advice of career attorneys, the reassignment of the individual who was in charge of the election issues in the Civil Rights Division, all that was shown, political interference, not just not following the advice of career attorneys. It had the imprint of a political agenda more so than a change in a philosophical approach and Judge Mukasey, I think, was pretty clear that he won't tolerate that type of activity. We need to make sure, in fact, that gets translated to those who are at the Department of Justice in critical positions, and we welcome your review of what happens in the Department of Justice. We thank you for your role in that regard. Mr. Canterbury, I want to ask you about another aspect of the Department of Justice, which is handling the criminal agenda. Several of the Senators asked questions about violent crimes. You have seen Judge Mukasey as a prosecutor and as a judge and I would like to get your assessment as to the comfort levels that he will be balanced and fair in prosecuting criminal activities, which is a significant part of the agenda of the Department of Justice, or he's supervising them. Mr. Canterbury. We represent 22,000 members in New York State and in our conversation with Federal, State and local officers in that judicial district, our review of cases that the judge has reviewed, we're very pleased with that. Also, obviously, the Attorney General also has oversight of the FBI and ATF and other law enforcement organizations that we deal with on a daily basis and we feel the experience that he has will help to foster State and local cooperation. There's been some great strides in the last eight or 10 years in local and State cooperation, but it's pretty obvious to us, from the judge's no-nonsense approach, that that will continue and we look forward to that. Senator Cardin. Thank you for that. I was just checking with our staff, because they were supposed to start a vote at 5, which they didn't start, which I'm thankful for. I want to, last, ask one other question, which is an open- ended question for--I'll give any of you an opportunity to comment, if you like. That is, trying to summarize the concerns raised during the confirmation hearings, I think I would put them probably in three categories. There were other issues raised, I'm not over- simplifying it, but it's the ability of Judge Mukasey to be an independent Attorney General; obviously, being in the Bush cabinet, but being an independent voice on behalf of the American people. Second, to not tolerate at all any political activities that would relate to the hiring or promotion or firing of career attorneys or involved in influencing decisions on criminal investigations in any way. And the third would be the priorities of the Department, whether this Department will carry out its historic role to protect the rule of law and to protect the civil liberties of the people in this country and move ahead on the civil rights agenda and deal with those types of issues. So this is somewhat of an open-ended question. If there's anything more you would like to add to the record in regards to those issues, I would welcome an opportunity to give you that chance now. Judge Martin? Judge Martin. Let me start just with a question of the whole political nature. Judge Mukasey hasn't come out of the political system. He was selected by Senator D'Amato's traditional selection committee, which was set up to be independent and to pick people on the merits. So he doesn't come here, I think--and I think he was nominated for this position because of his stature in the legal community, not because of his Republican credentials. So I don't think he comes to this as a political figure. He comes to this as a man of independence, a man of stature, a man of great intellect, and I think those qualities are what he will apply as the Attorney General. He is not a politician, and I don't mean to use that as a bad phrase, but he doesn't come out of that background. He comes out of the rule of law. That's what he did as a judge. That's what I think he will do as Attorney General. Ms. White. Senator, also, if I may just add to that quickly. He also comes out of the tradition of the Southern District of New York U.S. Attorney's office, where independence and being apolitical are--you're imbued with that from day one. The district and the office is known not so fondly in Main Justice as the Sovereign District of New York, but mostly I think that's very good and I think it's very good in terms of what it says about how he will be as Attorney General. Governor Thornburgh. May I offer just three observations that were reassuring to me in my reading of the record of these hearings? One, on the issue of independence, of course, an Attorney General is not independent in the sense that a justice minister in a European system might be. But the other side of the coin in independence is a willingness to stick by one's beliefs and principles and, if necessary, resign when those conflicts or principles become so intense that he can't continue, and I think he's clearly indicated that he recognizes that. Second, with regard to political activities, the most reassuring thing I heard was in his introductory statement, where he indicated that the targeting and timing--and the timing is important sometimes--of criminal prosecutions would be made without any consideration of the political implications involved, and this applies largely in corruption cases or in high profile cases. Third, on priorities, obviously, the priorities of the Department of Justice are set by the President, but I think in Judge Mukasey, you clearly have someone who is willing to speak his mind and be an advocate for priorities that he thinks are proper and correct for the administration and his voice will be heard. So on each of the matters that you raised, I'm reassured by his testimony and would expect that he would satisfy you as to his ability to meet those concerns. Senator Cardin. Admiral? Admiral Hutson. Senator, if I could take a small turn on one of your very nice lists of priorities, and that is independence. I think it's not only the independence of the Attorney General, but that the Attorney General, as the chief law enforcement officer, sets the tone for independent legal advice down the chain of command, if you will, and all those government attorneys need to be able to give independent advice. We have seen examples of where the advice of the attorneys within the Department of Defense, the judge advocates general, was ignored, not solicited, not respected, and we got ourselves in a lot of trouble and it wasn't until the U.S. Senate called hearings and the Senate Armed Services Committee called the JAGs, asked for their personal opinions about what constituted torture and whether the Geneva Conventions applied and so forth, that the American public really heard their independent views on that. And I think that it's very important for--particularly in light of the recent past, it's very important for Judge Mukasey to ensure that everybody understands that the opinions of the subordinate lawyers doesn't always have to be followed, but they should be heard and respected. Senator Cardin. Thank you. Ms. Johnsen. I'd like to second everything Admiral Hutson just said. It's very in line with what I'd like to say in my closing comment. That is, an independent Attorney General is necessary, but not sufficient. We do need, as I mentioned earlier, aggressive oversight by this Committee and just this month you had Jack Goldsmith, former OLC head from the Bush administration, saying the same thing, that if there had been more oversight, the Bush administration would have made fewer mistakes and it was only when there was oversight that there actually was deliberation and debate within the administration. And so I'm very encouraged by what I hear from others on this panel and some of what I've heard today about Judge Mukasey's independence, but that will not be enough, unless there is the pressure from this Congress on the administration and, again, an insistence on greater openness so that we know what the executive branch is doing. Senator Cardin. I thank you for that comment. I am proud of the leadership of Senator Leahy and Senator Specter in this Committee, which I believe has been a model of the right role for the legislative branch, putting aside partisan differences to make sure that the oversight function, in fact, was effective. As we have found out, there were very serious issues that needed the public attention and I think led to where we are today. So I think you're exactly right. The framers had it right with the separation of the branches and let's make sure we carry out our responsibilities here in the U.S. Congress. Mr. Shaw? Mr. Shaw. Senator, I was sitting here thinking about my time in the Department many years ago and I think that every lawyer within the Department of Justice knows that the Attorney General is a member of the cabinet and, in a sense, that's a political position. But there's political and there's political. I think, if I remember correctly, what we wanted was to know that the line would be drawn in the right place when it had to be drawn and that our superiors would listen to our suggestions and our analysis, even though they made the call, but they wouldn't make it purely on political grounds. And, also, that the Attorney General and the Assistant Attorneys General, when need be, would be willing to go to bat for the line attorneys and for, effectively, the rule of law within the Department. I think that's all one can want and ask for. I do know, because many of us stay in contact with or work with the line in the Department, that the esprit de corps is as low as it has been in any time that I can remember. The Department's attorneys are demoralized. And I think one of the most important challenges that the next Attorney General will face is to restore the sense of--well, of confidence on the part of the career attorneys that they're part of something that has integrity. That's the sense in which I think the attorneys expect the Attorney General to be apolitical and a political appointee should be apolitical: that they, above all else, make their decisions based upon an interpretation of the law that has integrity. Senator Cardin. Well, I thank each of you for being here. I think you've added to the record in a way that I think is important in the confirmation process for an Attorney General of the United States and I found it extremely helpful, to me, to try to put the puzzle pieces together, because we are clearly all with the same objective and that is to see the Department of Justice move forward in its traditional respect from the American people and it is an important part of the administration. And I think that these confirmation hearings have helped us in that regard and you all have been part of that and we thank you very much for your presence, your testimony, and, most importantly, for your patience as we've been trying to figure out when this panel would, in fact, be heard. The hearing record will remain open for one week in order to be able to supplement the record, and the Judiciary Committee now stands adjourned. Thank you all. 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