S. Hrg. 110-478
CONFIRMATION HEARING ON THE NOMINATION OF MICHAEL B. MUKASEY TO BE
ATTORNEY GENERAL OF THE UNITED STATES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
----------
OCTOBER 17 AND OCTOBER 18, 2007
----------
Serial No. J-110-51
----------
Printed for the use of the Committee on the Judiciary
CONFIRMATION HEARING ON THE NOMINATION OF MICHAEL B. MUKASEY
TO BE ATTORNEY GENERAL OF THE UNITED STATES
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Michael O'Neill, Republican Chief Counsel and Staff Director
C O N T E N T S
----------
OCTOBER 17, 2007
STATEMENTS OF COMMITTEE MEMBERS
Page
Cardin, Hon. Benjamin L., a U.S. Senator from the State of
Maryland, prepared statement................................... 407
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 436
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 4
PRESENTERS
Lieberman, Hon. Joseph I., a U.S. Senator from the State of
Connecticut presenting Michael B. Mukasey, Nominee to be
Attorney General of the United States.......................... 8
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York presenting Michael B. Mukasey, Nominee to be Attorney
General of the United States................................... 6
STATEMENT OF THE NOMINEE
Mukasey, Michael B., of New York, Nominee to be Attorney General
of the United States........................................... 9
Questionnaire................................................ 12
OCTOBER 18, 2007
STATEMENTS OF COMMITTEE MEMBERS
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin, prepared statement.................................. 418
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 159
prepared statement........................................... 438
WITNESSES
Canterbury, Chuck, National President, Fraternal Order of Police,
Washington, D.C................................................ 206
Hutson, John D., Rear Admiral, JAGC, USN (Ret.), President and
Dean, Franklin Pierce Law Center, Concord, New Hampshire....... 208
Johnsen, Dawn, Professor, Indiana University School of Law,
Bloomington, Indiana........................................... 210
Martin, John S., Member, Martin & Obermaier, LLC, New York, New
York........................................................... 218
Shaw, Theodore, Director, Counsel, and President, NAACP Legal
Defense and Educational Fund, Washington, D.C.................. 213
Thornburgh, Dick, former Governor of Pennsylvania, Of Counsel,
K&L Gates, Washington, D.C..................................... 203
White, Mary Jo, Partner, Debevoise & Plimpton, LLP, New York, New
York........................................................... 215
QUESTIONS AND ANSWERS
Responses of Michael B. Mukasey to questions submitted by
Senators Leahy, Kennedy, Biden, Kohl, Feinstein, Feingold,
Schumer, Durbin, Cardin, Whitehouse, Grassley, Kyl, Graham,
Levin, and Dorgan.............................................. 231
SUBMISSIONS FOR THE RECORD
Canterbury, Chuck, National President, Fraternal Order of Police,
Washington, D.C., statement.................................... 402
Department of Justice, Federal Bureau of Investigation, non-
disclosure statement (sample).................................. 410
Durbin, Hon. Richard J., Hon. Patrick J. Leahy, Hon. Edward M.
Kennedy, Hon. Joseph R. Biden, Jr., Hon. Herb Kohl, Hon. Dianne
Feinstein, Hon. Russell D. Feingold, Hon. Charles E. Schumer,
Hon. Benjamin L. Cardin, and Hon. Sheldon Whitehouse, joint
letter to Judge Mukasey and his response....................... 411
Hutson, John D., Rear Admiral, JAGC, USN (Ret.), President and
Dean, Franklin Pierce Law Center, Concord, New Hampshire,
statement...................................................... 421
Johnsen, Dawn, Professor, Indiana University School of Law,
Bloomington, Indiana, statement and attachment................. 425
Levin, Hon. Carl, a U.S. Senator from the State of Michigan and
Chairman, Committee on Armed Services, letter to Judge Mukasey. 440
Martin, John S., Member, Martin & Obermaier, LLC, New York, New
York, statement................................................ 442
Mukasey, Michael B., of New York, Nominee to be Attorney General
of the United States, statement................................ 444
Shaw, Theodore, Director, Counsel, and President, NAACP Legal
Defense and Educational Fund, Washington, D.C., statement...... 447
Specter, Hon. Arlen:
letter to Judge Mukasey and his response..................... 458
letter to Hon. Richard B. Cheney, Vice President of the
United States, and his response............................ 463
Thornburgh, Dick, former Governor of Pennsylvania, Of Counsel,
K&L Gates, Washington, D.C., statement......................... 469
Washington Post, October 12, 2007, editorial..................... 474
White, Mary Jo, Partner, Debevoise & Plimpton, LLP, New York, New
York, statement................................................ 475
NOMINATION OF MICHAEL B. MUKASEY, OF NEW YORK, TO BE ATTORNEY GENERAL
OF THE UNITED STATES
----------
WEDNESDAY, OCTOBER 17, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 10 a.m., in room
SH-216, Hart Senate Office Building, Hon. Patrick J. Leahy,
Chairman of the Committee, presiding.
Present: Senators Leahy, Kohl, Feinstein, Feingold,
Schumer, Durbin, Cardin, Whitehouse, Specter, Hatch, Grassley,
Kyl, Sessions, Graham, Cornyn, Brownback, and Coburn.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Before we start, just so everyone will
understand, something that seems to be a relatively new
phenomenon, at least in the years I have been in the Senate,
are these demonstrations--choreographed, spontaneous
demonstrations at hearings.
Just so everybody understands, I want everybody to be able
to watch this hearing. I do not want anybody in the audience to
be blocked by anyone for any reason whatsoever. I want
everybody to be able to watch it comfortably. I am directing
the police that if anybody stands up and blocks the view of
anybody in this hearing, that person will be removed.
Now, if there are any demonstrations either for or against
a position I might take, for or against a position Senator
Specter or any other Senator might take, for or against a
position that any witness might take, that person will be
removed. I just want to make that very clear. I am sure it is
not going to be necessary. I am sure everybody is going to
treat this hearing with decorum. But I recall seeing Senator
Durbin here, we had this situation recently in an
Appropriations Committee hearing.
Judge, please feel free to come up and sit there.
Judge, I think I have this wrong. I did not realize on
introducing, I think Senator Schumer will introduce you from up
here, and Senator Lieberman will introduce you from where you
are sitting. So if we could do that musical chair and have you
go back.
[Laughter.]
Chairman Leahy. I will give my statement on this, and then
we will have Senator Schumer and Senator Lieberman make
introductions.
Early this year, as we began our consideration of the
United States Attorney firing scandal, I observed that we faced
the most serious threat to the effectiveness and
professionalism of the United States Department of Justice
since the days of the Saturday Night Massacre, when President
Nixon forced the firing of Special Prosecutor Archibald Cox.
But I noted that unlike during Watergate, this time there
was no Elliot Richardson, there was no William Ruckelshaus
around to defend the independence of Federal prosecutors.
Instead, high officials at the Department and their staffs were
complicit with White House political operatives. Now the entire
senior leadership and their staffs have resigned, as have Karl
Rove and his two top aides at the White House.
The crisis of leadership that led to these resignations has
taken a heavy toll on the tradition of independence that long
guided the Department of Justice and protected it from
political influence. I have been here with six Presidential
administrations, Republican and Democratic. In every one of
them, the Department of Justice was protected from political
influence up until now.
The firing of the U.S. Attorneys who are the chief Federal
law enforcement officers in their districts sent a message to
all U.S. Attorneys and the career prosecutors working in those
offices that, as sworn testimony we received said, only ``loyal
Bushies'' would keep their jobs or advance in their careers.
This crisis has taken a heavy toll on morale at the Department
and in confidence among the American people. As a former
prosecutor, I know that the dismay runs deep, from the career
attorneys at Justice and in our U.S. Attorney's Offices
straight down to the police officer on the beat.
I start this hearing as I did the hearing that this
Committee held on the last Attorney General nomination, hoping
to be able to support the nominee. After that hearing in 2005,
I decided I could not vote for the confirmation of Alberto
Gonzales. I did that noting, as Justice James Iredell had in
1792, that the person who serves as Attorney General ``Is not
called Attorney General of the President, but Attorney General
of the United States.''
There is good reason why the rule of law requires that we
have an Attorney General and not merely a Secretary of the
Department of Justice. This is a different kind of Cabinet
position. It is distinct from all others. It requires greater
independence. The departing Attorney General never understood
this. Instead, he saw his role as a facilitator for the White
House's overreaching partisan policies and politics.
Now, restoring the Department of Justice--and I want to
restore it. I have enormous respect for the Department of
Justice. I have from my days as a law student here in
Washington at Georgetown. But it begins by restoring integrity
and independence to the position of Attorney General of the
United States.
The Attorney General's duty is to uphold the Constitution
and the rule of law and not work to circumvent it. Both the
President and the Nation are best served by an Attorney General
who gives sound advice, takes responsible action, without
regard to political considerations--not one who develops
legalistic loopholes to serve the ends of a particular
administration.
The Attorney General cannot interpret our laws to mean
whatever the current President, Republican or Democratic, wants
them to mean. The Attorney General is supposed to represent all
the American people, not just one of them.
Regrettably, the former Attorney General enabled this
administration to continue policies that are in fundamental
conflict with American values and decades of law, sound
military practice, international law, and human rights. We see
it demonstrated yet again in the recent revelation that even
after waging and losing a public battle to resist congressional
efforts to outlaw torture and honor our obligations, this
administration, enabled by the Justice Department, apparently
secretly struggled to redefine ``torture'' and ``cruel,
inhuman, and degrading treatment'' to allow the very conduct of
torture that this Congress had outlawed.
We have seen departures from this country's traditions,
practices, and established law in connection with interrogation
methods that we condemn when they are used by others. Likewise,
we have seen political influence corrupt the Department of
Justice when it has departed from its longstanding practices
and tradition, practices that historically served to insulate
it from partisanship in law enforcement. This lawlessness led
to Abu Ghraib, Haditha, and Blackwater. And valuing loyalty
over competence and accountability led to the bumbling
aftermath of Hurricane Katrina, the failure to care for wounded
veterans at Walter Reed, and the purge among U.S. Attorneys.
There is much that has gone wrong that this administration
has stubbornly refused to admit or correct. When President Bush
ascribed Attorney General Gonzales's resignation to supposed
``unfair treatment'' and having ``his good name dragged through
the mud for political reasons,'' ignoring the fact that
numerous prominent Republicans had called for his resignation,
he mischaracterized the clear facts about the U.S. Attorney
firing scandal that decimated morale at the Justice Department.
To reclaim our moral leadership, we need to acknowledge
wrongdoings. These hearings are about a nomination, but the
hearings are also about accountability.
We do need a new Attorney General. We need someone who
understands that the responsibilities and duties of that office
are not to be a validator for the administration. We are
reminded by the examples of Elliot Richardson and William
Ruckelshaus from the Watergate era--more recently the examples
of James Comey and Jack Goldsmith and Alberto Mora--that law
enforcement officials have to enforce the law without fear or
favor. and not in reaction to political benefactors but in
reaction only to what is the law.
We are the most powerful Nation on Earth. We are the most
powerful Nation the world has ever known, a country that
cherishes liberty and human rights, a Nation that has been a
beacon of hope and freedom to the world. We face vicious
enemies, and we need the confidence and the resolve to
understand that we can and must defeat them without sacrificing
our values and stooping to their level.
So this is a job interview for a big job--a big job that
has become even bigger. Along with helping keep Americans safe
and protecting their rights and combating crime and enforcing
the law and managing more than 100,000 employees, and a budget
that goes into the tens of billions of dollars, the next
Attorney General has to begin to regain the public trust. And I
think your nomination can begin to repair the process, and I
hope all members of the Judiciary Committee, Democrats and
Republicans alike, will join to restore the constitutional
checks and balances that have been systematically eroded. And I
hope we can begin that process this week.
So I welcome the nominee. I appreciate the time, Judge,
that you and I have spent in private conversation, and I
enjoyed meeting your wonderful family this morning. So I hope
you will help us restore the Department of Justice to be worthy
of its name. The American people expect that. But you know
what? Americans deserve no less.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
I have gone over my time, but I think this is an important
issue, and I yield to Senator Specter for whatever amount of
time he wants.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman. This is a very
important confirmation hearing, I believe more important than
most confirmations of the Attorney General, really
approximating the importance of a Supreme Court confirmation
hearing. And I say that for a number of reasons: first, the
Department is dysfunctional; second, there has been a broad
expansion of executive power, necessary in part because we are
at war fighting a serious international enemy; and, third,
because it takes the Supreme Court and the other Federal courts
so long to intervene that the opinions of the Attorney General
to guide the executive branch on what is constitutional is more
important in this setting.
We start with a Department which urgently needs a
restoration of integrity and honesty and independence. We have
seen a situation where there have been serious allegations of
political influence, and it is very important that those
matters be cleared up and that the new Attorney General
function on the hiring on merit and the firing for cause.
We have seen broad expansion of executive authority, and
understandably so when we are at war. But at the same time,
there has to be a balancing of constitutional rights and civil
liberties.
I supported the PATRIOT Act, chaired the Committee that
produced it and managed it on the floor, supported the Protect
America Act. But at the same time, I am very concerned about
what is happening with constitutional rights. The detainee
situation is still a matter of some urgency. It casts a shadow
over the administration of justice in America and holds us up
for very substantial criticism worldwide.
We have seen a Terrorist Surveillance Program put into
effect without telling the Chairman or Ranking Member of the
Judiciary Committee. A matter of that constitutional magnitude
ought to at least be shared with the top officials, if not us
then the Speaker of the House and the Majority Leader, to have
some congressional input and some congressional oversight.
And we have seen the signing statements where the President
has agreed when we passed the PATRIOT Act to accommodate
detailed oversight, and then on a signing statement says, ``I
may not have to do that, may not be willing to do that under my
Article II powers,'' or on the celebrated rapprochement between
President Bush and Senator McCain over interrogation tactics,
carefully negotiated, and then a signing statement.
The conventional understanding of constitutional authority
is when the Congress enacts legislation and presents it to the
President and he signs it, that that is the law that he has to
faithfully execute under the Constitution. And I am awaiting an
Attorney General who will tell the President some things he may
not like to hear.
We have a judicial system which functions in accordance
with our traditions, but we still have not resolved the
detainee issue. Congress has legislated on it, and you have
Combatant Status Review Tribunals which are a joke. You can
have a substitute for habeas corpus, but it has to be
meaningful. And now the administration has come forward with
yet another effort there, I think, to foreclose a Supreme Court
decision which is imminent, with five Justices having granted a
petition for re-argument on the detainee issue.
There are so many matters to take up in this hearing that I
think it is likely to be longer than most. We need to examine
the nominee's attitude on a reporter's privilege. Can the
Department of Justice live with a shield for reporters with the
exception of national security matters on a balancing test?
What would Judge Mukasey have to say about the evolving
approach of the Department of Justice to demand waivers, subtly
or by virtual compulsion in the face of the attorney-client
privilege?
And as we are proceeding in this hearing room, the Senate
is engaged in debates on the appropriations process, and there
again is a challenge, this time acquiesced in perhaps by the
Congress. The Appropriations Committee came up with
legislation, a bill for Commerce, State, and Justice, and then
there is a move to recommit to the President's figure, not to
use the figure established by the Committee or by the Senate.
And if we succumb to that, that will be a further enlargement
of executive authority.
At 11 o'clock, the Senate will take up the appropriations
bill on Labor, Health and Human Services, and Education, where
I am the Ranking Member, so I will have to be in and out, but
in my absence will be watching closely and participating
extensively because this is such a very, very important matter.
Thank you, Mr. Chairman.
Chairman Leahy. Well, thank you, Senator Specter. I should
also note--and I think I mentioned this to you--that Senator
Kennedy had surgery over the weekend and is recuperating at
home, and that is why he is not here. He called us and made
that clear.
What I was going to do is have Senator Schumer, who is from
New York, introduce you, and after he does, I am going to ask
Senator Lieberman, who was your classmate, and either he helped
you through law school or you helped him through law school,
introduce you.
Senator Schumer, go ahead.
PRESENTATION OF MICHAEL B. MUKASEY, NOMINEE TO BE ATTORNEY
GENERAL OF THE UNITED STATES, BY HON. CHARLES E. SCHUMER, A
U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman, and thank you for
the honor of introducing a fellow New Yorker at today's
hearing. I congratulate Judge Michael B. Mukasey on his
nomination to be the 81st Attorney General of the United
States.
I want to also welcome your family members who traveled
here for this important day: your wife, Susan; your children,
Marc and Jessica. I am sure you all are very proud of your
husband, father, and other relations that I know are here as
well.
Judge Mukasey has had a long and illustrious career that I
can give only the briefest of highlights here. Born and raised
in the Bronx, Judge Mukasey graduated from Columbia College and
from Yale Law School, where he served on the Board of Editors
for the Yale Law Review. Then he served for a number of years
in both private practice and the U.S. Attorney's Office in the
Southern District of New York where he rose to become chief of
the Official Corruption Unit.
Starting in 1988, and for 18 years, Michael Mukasey was a
Federal district court judge for the Southern District of New
York, culminating in his serving as chief judge. There he
presided over some of the most important and historic cases of
the day, including the case of Omar Abdel Rahman, known as the
``blind sheikh,'' Jose Padilla, and many others. All the while,
Judge Mukasey earned a reputation for efficiency, fairness, and
integrity.
Even those who did not always receive the benefit of a
judge's favorable ruling--of a favorable ruling, have been
quick to describe the judge's basic fairness and decency. Upon
his retirement from the bench, one of Jose Padilla's lawyers
said, ``I admire him greatly,'' and described herself as
``another weeping fan.''
Another Padilla lawyer has said, ``I don't always agree
with where he comes out, but I'm always happy to draw him as a
judge. You are going to get your day in court.'' He went on to
say, ``His sense of fairness and due process, it's more than
intellectual. It's really down to the genetic level. It's in
his DNA.''
There are many such testimonials for Judge Mukasey from
people he would not agree with politically. But none of Judge
Mukasey's experiences, as varied and as valuable as they have
been, can prepare him fully for the job that lies ahead. If
confirmed, his task will be no less momentous and no less
difficult than that facing Edward Levi, when he took the reins
of John Mitchell's Justice Department after Watergate, because
he will inherit an agency experiencing its greatest crisis
since Watergate.
By every account, the Justice Department is leaderless and
rudderless. It is dysfunctional and in disarray. It is
demoralized and decimated.
Our investigation this year demonstrated the Department's
prior leadership sorely lacked credibility, competence,
independence. Against that backdrop, and with only 14 months
left, the Department does not now need a series of bold
initiatives; rather, it needs steady leadership.
This is, we might say, a rebuilding year. The most
important qualities we need in an Attorney General right now
are independence and integrity, and looking at Judge Mukasey's
career and his interviews that we have all had with him, it
seems clear that Judge Mukasey possesses these vital
attributes.
The bottom line is this: There have been many conservative
Department lawyers who are honorable and showed allegiance to
the rule of law. Former Deputy Attorney General Jim Comey comes
to mind. So does the former head of the Office of Legal
Counsel, Jack Goldsmith. And as we now know, even John
Ashcroft, much maligned for so long, showed genuine courage and
conviction at important moments when the rule of law might have
fallen victim to those, some in the administration, who
disrespected the Constitution.
I did not agree with these men on many or even most policy
issues--Comey and Goldsmith. I have no illusions about Judge
Mukasey either. From talking with him, it is clear that many of
us are going to disagree with many of his views, and with some
quite strongly. But at this time, the most important question
is this: Will Judge Mukasey be independent enough and
courageous enough to stand strong, even against the man who
nominated him, if that is what the law requires?
Former Deputy Attorney General Jim Comey gave an eloquent
speech to the National Security Agency in the spring of 2005,
and his words are worth noting as we consider the nomination of
Judge Mukasey. Comey said this: ``It is the job of a good
lawyer to say yes. It is as much the job of a good lawyer to
say no. `No' is much harder. `No' must be spoken into a storm
of crisis, with loud voices all around, with lives hanging in
the balance. `No' is often the undoing of a career. And often
`no' must be spoken in competition with the voices of other
lawyers who do not have the courage to echo this.
And so yesterday I asked Judge Mukasey, and I will ask him
again today, this question, and I will be one more minute, Mr.
Chairman: If confirmed, will you have the courage to look
squarely into the eyes of the President of the United States
and tell him no if that is your best legal and ethical
judgment? Judge Mukasey then looked me in the eye and assured
me, ``Absolutely. That is what I am there for.'' He also
assured me he will go back and re-examine the legal opinions
that underlie various controversial administration policies--
Chairman Leahy. Senator Schumer, I do not mean to cut you
off, but we are going to have to have a break because of the
Dalai Lama. Are you going to take much longer? Otherwise--
Senator Schumer. No. About 30 seconds, Mr. Chairman.
He also assured me he will go back and re-examine the legal
opinions that underlie various controversial administration
policies, such as warrantless wiretapping, detention, and
torture. Further, he assured me and I trust he will assure this
Committee that he will be a voice for working with the Congress
rather than going at it alone.
In these answers, Mr. Chairman, lies the hope we have a
nominee, albeit conservative, who will put the rule of law
first, who will earn the respect of the country, and--
Chairman Leahy. Thank you, Senator Schumer.
Senator Schumer.--who will restore the Department to its
full promise. I expect this hearing will demonstrate that this
hope is justified.
Chairman Leahy. Senator Lieberman?
PRESENTATION OF MICHAEL B. MUKASEY, NOMINEE TO BE ATTORNEY
GENERAL OF THE UNITED STATES, BY HON. JOSEPH I. LIEBERMAN, A
U.S. SENATOR FROM THE STATE OF CONNECTICUT
Senator Lieberman. Thank you very much, Mr. Chairman,
Senator Specter. It is an honor to introduce Michael Mukasey to
this Committee, to follow the excellent introduction of Senator
Schumer. One might say that Senator Schumer gets this privilege
for reasons of proximity because he is the Senator from New
York. Judge Mukasey is from New York. I think I am here for
reasons of longevity.
Forty-three years ago this fall, Michael Mukasey and I
entered Yale Law School, and as fate would have it, we ended up
in the small group, as we called it, in that first semester.
Most of our courses were lectures. We were in a small group of
12 or 15 students. We got to know each other very well. It was
Contracts. We had a young faculty member named Robert Bocking
Stevens, who was from England, and he had a charming way of
questioning one of us--tough, demanding. Let's say he was
questioning me. He would end his questioning. I would relax,
breathe a deep sigh I had survived that round of questioning.
He would go to Mike Mukasey. And then when I was least
suspecting, he would come back, whirl around and say, ``Now,
back to you, Mr. Lieberman.'' It was a hair-raising experience.
I want to say that right there, 43 years ago, I saw Mike
Mukasey, and I see essentially the same person today. His
answers to that tough law professor were always responsive. You
may not agree with him all the time. I am sure members of the
Committee will not agree with him on some things. But you will
always feel after the hearings that you are beginning this
morning that he has given you a reasoned answer, he has thought
about it, and he is not hesitant to reach an opinion.
Second, I would say that the person I met 43 years ago was
a young man who was smart, who was thoughtful, who was hard-
working, who had kind of a solid center about him as a person,
who had a great sense of humor and a ready smile. And it is
great to be able to say that 43 years later this is exactly the
same kind of person who comes before you as nominee for
Attorney General--wiser from experience, apparently, slightly
older, but nonetheless with the same strengths.
He comes with the experience of more than two decades as a
prosecutor, a judge, a private practitioner, which Senator
Schumer spoke to, and I will not repeat.
I would say two things about this. First, this is a man of
the law, not a man of politics. In fact, as I have thought
about it, it is hard to think in recent memory of a nominee for
Attorney General who comes to the office, comes to this hearing
with fewer political and personal contacts to the President who
has nominated him than Judge Michael Mukasey.
Second, he comes with extraordinary relevant experience in
the fundamental questions that challenge us today because of
the war we are in against Islamist terrorism, and the
challenging questions we have as to how to balance security and
liberty. He has some opinions based on experience and judgment
that I think will help members of the Committee and I think,
insofar as the public as watching, will help members of the
public understand better and reach more informed judgments
about what we ought to do to protect our lives while also
protecting our liberty.
I would say finally, Mr. Chairman, Senator Specter, that
this combination of personal excellence, integrity,
independence, hard work, commitment to the rule of law and our
system of justice puts him in a unique position to do exactly
what you, Mr. Chairman, and Senator Specter and Senator Schumer
have said, which is to restore the morale and pride of the tens
of thousands of people who work at the Department of Justice
for us every day with great excellence and integrity to
preserve our system of justice.
So I would say in closing, Mr. Chairman, I ask the
indulgence of the Committee in saying with some nostalgia now,
``Back to you, Mr. Mukasey.''
Chairman Leahy. Senator Lieberman, I might say, one, I
appreciate very much especially the personal part. And then I
would also tell Judge Mukasey--and I do not think Senator
Lieberman will mind me doing this. He spoke to me privately and
was just as glowing in his private conversation as he has been
in his public, and he was very strongly supportive of both your
legal background and your integrity and your honesty.
Joe, thank you.
Senator Lieberman. Thank you, Pat.
Chairman Leahy. We are going to make a slight change in
chairs. In a baseball game, this is where they would cut to a
commercial. But, Judge, please step forward and raise your
right hand. Do you solemnly swear that the testimony you will
give in this matter will be the truth, the whole truth, and
nothing but the truth, so help you God?
Judge Mukasey. I do.
Chairman Leahy. Judge, you have heard everybody speak about
you, say glowing things about you, but also talk about the very
strong concerns that Senator Specter and I and many other
members have. And this is the part now where the American
people have been waiting to hear from you. Please go ahead,
sir.
STATEMENT OF MICHAEL B. MUKASEY, NOMINEE TO BE ATTORNEY GENERAL
OF THE UNITED STATES
Judge Mukasey. Thank you. Good morning, Chairman Leahy,
Ranking Member Specter, and members of the Committee. Thank you
for the opportunity to be here today.
When my nomination to be the 81st Attorney General of the
United States was announced, I expressed to President Bush my
gratitude and deep sense of honor. Since then, I have had the
benefit of your graciousness in taking the time to meet with me
privately, to express your views and concerns, and to hear my
views. I am grateful to each of you for that, as I am to
Senators Schumer and Lieberman for their generous remarks in
introducing me this morning. And, of course, I am grateful to
my family--my wife, Susan, my children, Marc and Jessica--who
have been a part of whatever I have done that has been
worthwhile.
But what comes most strongly to mind as I deliver these
brief remarks is that this isn't about me or even about my
gratitude to the many people who helped me get here. This is
about the more than 100,000 men and women of the Department of
Justice who bear the responsibility to pursue justice through
the rule of law in U.S. Attorney's Offices, in investigative
field divisions, in Federal prisons and other facilities all
over this country and all over the world.
There are in a sense many cultures in those different
offices and divisions, and there are differences as well
between the culture of the Department as it may appear in the
building that occupies a square block here in Washington and as
it may appear in each of the 93 United States Attorney's
Offices around the country. But all those apparently different
cultures are united by shared values and standards. Legal
decisions and the progress of cases are decided by facts and
law, not by interests and motives.
So too, the Justice Department's mission includes advising
the other departments and agencies of Government, including the
President, on what choices they are free to make and what
limits they face. Here too, the governing standard is what the
Constitution and the law permit and require.
I am here in the first instance to tell you, but also to
tell the men and women of the Department of Justice, that those
are the standards that guided the Department when I was
privileged to serve 35 years ago, and those are the standards I
intend to help them uphold if I am confirmed.
Because of the times in which we live, it was to be
expected--as, in fact, happened--that many of you would discuss
with me weighty and serious issues that sometimes seem to raise
a conflict between liberty and security. A great Attorney
General, perhaps the greatest to serve in the modern era,
Robert Jackson, said that the issue between authority and
liberty is not between a right and a wrong--that never presents
a dilemma.
The dilemma is because the conflict is between two rights,
each in its own way important. That is why I have told you
during those discussions, and may have occasion to repeat again
here today, that protecting civil liberties, and people's
confidence that those liberties are protected, is a part of
protecting national security, just as is the gathering of
intelligence to defend us from those who believe it is their
duty to make war on us. We have to succeed at both. It is the
honor and the privilege of the men and women of the Justice
Department to help us to do that, and if I am confirmed, it
will be my honor and privilege to try to help them help us.
As I mentioned a moment ago, you have been generous with
your time and your advice in the past couple of weeks. I
believe that the Department's relationship with this Committee
and with Congress is vital to fulfilling its mission. I want to
assure you that, if confirmed, I will always appreciate and
welcome your advice, as I have since my nomination, and that I
and others in the Department will try to be available to you.
In that spirit, I am ready to answer the questions you have for
me today.
Thank you.
[The prepared statement of Judge Mukasey appears as a
submission for the record.]
[The biographical information of Judge Mukasey follows:]
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Chairman Leahy. Thank you, Judge, and you had mentioned
that your wife, Susan, is here and your son Marc and daughter
Jessica, and I would ask the staff to put in the record the
names of all the other people who are accompanying you. Someday
in the Mukasey archives, they will enjoying looking at the fact
that they were all here.
Judge, in the course of this Committee's investigation into
the termination of U.S. Attorneys, we found evidence that
showed the White House and Justice Department officials
deciding who to fire were focused on the political impact of
Federal prosecutions and whether Federal prosecutors were
bringing charges against those people they saw as political
opponents. For example, New Mexico U.S. Attorney David Iglesias
was fired a few weeks after Karl Rove complained to the
Attorney General about the lack of what he saw as voter fraud
enforcement cases. Then the fired U.S. Attorney Todd Graves
from Missouri was replaced by Interim U.S. Attorney Brad
Schlozman, who then brought four indictments right on the eve
of a closely contested election. And we had others, in
Wisconsin and elsewhere.
These prosecutions, like the Schlozman ones, clearly
violated the Justice Department's Red Book, which is its guide
for Federal prosecutions of election offenses, which basically
says you do not bring these last-minute prosecutions when it
may affect an election.
Now, that guidebook was recently revised under the
outgoing, now discredited leadership to do away with that. The
Red Book is now a Green Book.
Judge, will you go back to the old standards, the standards
that have been there with Republican and Democratic
administrations as long as I can remember?
Judge Mukasey. Well, your question concerns the Red Book
and the Green Book, but it obviously goes well beyond the Red
Book and the Green Book. It goes to very basic principles that
I have articulated before and, if I am confirmed, I am going to
articulate again in as clear English as I can, and that is that
politics, partisan politics, plays no part in either the
bringing of charges or the timing of charges, and that people
in the Department should not be authorized, people below a very
small group at the top should not be authorized to take calls
or make calls with political figures to talk about cases. And
those people ought to have available to them and will have
available to them, if I am confirmed, the telephone numbers of
the very few people who can take calls and make calls on the
subject of cases or any other subject in the interest of some
elected official.
Chairman Leahy. I would also ask you to look back at the
old Red Book, too, and the fact that it said don't bring
charges on the eve of elections if they are apt to affect the
outcome one way or the other.
Judge Mukasey. Obviously, the closer you get to an
election, when there is a charge that either deals with a
candidate or deals with an issue that can affect the outcome,
the higher and higher has to be the standard and the greater
and greater has to be the necessity for bringing the charge at
the particular time in order to justify it.
Chairman Leahy. And, of course, you have had a close
association with Rudy Giuliani, who is one of the leading
candidates for the Republican nomination for President. It goes
back to your work with him in the U.S. Attorney's Office,
something you have spoken of with pride, and he has, too. And
you have served recently on the Justice Advisory Committee.
Can I assume that as Attorney General, and with the fact
that the Justice Department has to watch that elections are
held fairly, would it be safe to say you will totally recuse
yourself from any involvement either with Mr. Giuliani or any
candidate for President?
Judge Mukasey. It is safe to say. It is not only safe to
say, I am saying it, too, just so that there is no ambiguity.
Chairman Leahy. It is kind of Hornbook law, isn't it?
Judge Mukasey. Right. There is no ambiguity in the record.
Chairman Leahy. Thank you.
Now, let's go to the so-called Bybee memo. I think one of
the greatest stains on the history of this country is the memo
dated August 1, 2002, signed by then Assistant Attorney General
Jay Bybee, that concluded that the President has the authority
as commander-in-chief to override domestic and international
laws prohibiting torture, to immunize anybody who commits
torture, immunize them from prosecution.
And many of us voted against Alberto Gonzales's nomination
for Attorney General because he refused to disavow legal
conclusions in a memo that did not rule out the use of cruel,
inhuman, degrading treatment of detainees during
interrogations.
It turns out that our concerns are well founded. The New
York Times recently reported that soon after Attorney General
Gonzales took over, the Department of Justice secretly endorsed
combinations of the harshest interrogation tactics as legal
even though they had been publicly withdrawn under the so-
called Bybee memo.
Now, do you believe, so we know where you might stand on
this, do you believe that the President has the authority under
any circumstances to exercise a so-called commander-in-chief
override and immunize acts of torture, as the Bybee memo
argued?
Judge Mukasey. We are parties to a treaty that outlaws
torture. Torture is unlawful under the laws of this country.
The President has said that in an Executive order. But beyond
all of those legal restrictions, we don't torture not simply
because it is against this or that law or against this or that
treaty. It is not what this country is about. It is not what
this country stands for. It is antithetical to everything this
country stands for.
Soldiers of this country liberated concentration camps
toward the end of World War II and at the end of World War II
and photographed what they saw there as a record of what the
barbarism that we oppose. We didn't do that so that we could
then duplicate it ourselves.
The Bybee memo, to paraphrase a French diplomat, was worse
than a sin, it was a mistake. It was unnecessary. As I have
read--I mean, I have read the memo and I have read what has
been--some of what has been written about it. It purported to
justify measures based on broad grants of authority that were
unnecessary. The analysis in that memo was found to be
defective, and the memo was withdrawn in favor of a later memo
that narrowed substantially the basis for authorizing measures
beyond, perhaps different from those that may be contained in
the Army Field Manual.
Chairman Leahy. Would it be a safe characterization of what
you have just said that you repudiate this memo as not only
being contrary to law but also contrary to the values America
stands for?
Judge Mukasey. I do.
Chairman Leahy. Thank you. And is there such a thing as a
commander-in-chief override that would allow the immunization
of acts of torture that violate the law?
Judge Mukasey. Not that I am aware of.
Chairman Leahy. Thank you. Now, the memos issued under
Attorney General Gonzales apparently gave legal approval to
harsh physical and psychological tactics, head slapping,
simulated drowning, frigid temperatures and so on. The first of
these memos was issued over the objections of Deputy Attorney
General James Comey, who predicted that the Department of
Justice would be ashamed when the public learned of them. And,
of course, the public did learn of them. It would appear,
though, that they still remain in effect as governmental
policy.
Will you ensure that the Department of Justice will rewrite
its guidance on interrogation and degrading treatment and bring
it back into line with the law that Congress passed?
Judge Mukasey. I am certainly going to examine the
underlying memos and the underlying facts. I have not been
``read in on,'' I think is the Washington expression, any
classified program or information, including the classified
information that relates to interrogation methods or the
memoranda that relate to interrogation methods. And so I cannot
say that there is something that is out of line with the law in
those programs until I see the programs and see the memos and
see whether they are in alignment or not.
Chairman Leahy. Will you not only read the memos, but make
sure that they are in line with the testimony you have already
given and your own views of what is allowed under our law?
Judge Mukasey. I certainly will.
Chairman Leahy. Attorney General Gonzales apparently
believed the President has a commander-in-chief override for
many of the laws of this country which contribute to the
violations of the Foreign Intelligence Surveillance Act, the
so-called FISA, with the signing statement reservation and
others, that for 5 years the administration conducted a program
of warrantless surveillance that violated the provisions of
FISA. They did not come to us and ask us for changes even
though this Congress has almost unanimously updated and changed
FISA more than 30 times since it was first enacted to take into
consideration changes in technology and needs.
Only after somebody in the administration leaked to the
press that this was going on and the resultant public criticism
and telecommunication companies that had cooperated were sued
did they come back and say maybe we ought to look at a new law.
Do you believe that the President has the authority to
override something that is in law, legal requirements, and
immunize illegal surveillance on Americans?
Judge Mukasey. The President cannot immunize illegality.
That is a contradiction in terms. But that said, I think there
is a long, complex history to the FISA statute, beginning with
its passage in 1978, when the then Attorney General, Jimmy
Carter's Attorney General, Griffin Bell, took the view and
expressed the view that the limits of FISA did not reach to the
limits of Presidential authority, which is to say that there
was some gap between where FISA left off and where the
Constitution permitted the President to act.
I said I was not read in on classified programs, and the
Terrorist Surveillance Program that you speak of, although it
is no longer in effect, remains a classified program, and so I
do not know what the details are of--
Chairman Leahy. But you will get read into it.
Judge Mukasey. Of course I will.
Chairman Leahy. There will probably be further questions.
My last question is this, and I will go back into this more on
the next round. If the House or Senate certified a contempt
citation against current or former White House officials
arising from the U.S. Attorney investigation, would you permit
the U.S. Attorney to carry out the law and refer the matter to
a grand jury, as required by 2 U.S.C. 194?
Judge Mukasey. In order for a U.S. Attorney to take a
charge of contempt to a grand jury, a U.S. Attorney has to be
able to tell that grand jury that any reliance by the contemnor
on a privilege cited by the President or on an order of the
President was unreasonable. Unless the U.S. Attorney can say
that it was unreasonable for the person who is proposed to be
held in contempt to have relied on a privilege or an order of
the President, that would be--that person cited for contempt
cannot be found to have had the state of mind necessary to
warrant charging her or him with criminal contempt. And,
therefore, that evaluation is going to have to be made by the
executive when, as, and if it happens.
I hope and pray for a lot of things. One of them is that I
do not ever have to make that decision. But when I make it, I
am going to make it in line with the principles I have just
discussed.
Chairman Leahy. Your predecessor made the decision without
even looking at those principles and said that the U.S.
Attorney would not be allowed to go forward, and the White
House did. You would at least require some principles before
making such a determination. Is that what you are saying?
Judge Mukasey. That is what I am saying. I am going to be
guided by the principles I just mentioned.
Chairman Leahy. Senator Specter?
Senator Specter. Thank you, Mr. Chairman.
Judge Mukasey, many references have already been made to
the imperative need for honesty and integrity and independence
in the Attorney General of the United States.
Going right to the heart of the matter, are you prepared to
resign if the President were to violate your advice and in your
view violate the Constitution of the United States on an
important matter as Attorney General Elliot Richardson did in
the Saturday Night Massacre?
Judge Mukasey. As you and I discussed, if the President
proposed to undertake a course of conduct that was in violation
of the Constitution, that would present me with a difficult but
not a complex problem. I would have two choices: I could either
try to talk him out of it, or leave. Those are the choices.
Senator Specter. Well, if the alternative is to leave if
you cannot talk him out of it, then I think the answer to my
question is yes.
Judge Mukasey. It is.
Senator Specter. OK. Judge Mukasey, there is a variance
between the way you are quoted in this morning's Washington
Post contrasted with your citation of Justice Jackson's
statement. Your quote in the Washington Post is saying, ``When
it comes to the international arena, our national priority is
not to do justice to individual litigants; it is to protect the
security of the body politic of the United States.''
When you quote Justice Jackson on the considerations of
authority versus liberty, he said that, ``Protecting civil
liberties, and people's confidence that those liberties are
protected, is a part of protecting national security...''
Now, I am candidly concerned with the statement which
appears in the Post because when you talk about not to do
justice to individual litigants, it moves away from the
traditional balancing test. National security is of vital
importance, and I think it is fair to say, and a consensus
would be present, that the President has to have greater
authority in time of war or in time of an attack from
international terrorism and a continuing threat, but there is
still a necessity to be concerned about individual litigants,
which your first statement rejects.
Is your dominant view the view you expressed by--or quoted
Jackson that protecting civil liberties is a part of protecting
national security?
Judge Mukasey. It is, and I think I--I am not certain that
I recall precisely the context of the statement that was quoted
in the Post, but I think I was talking there about individual
litigants, not in United States courts but, rather, individuals
who may be in our custody abroad and whose rights are less than
the litigants--or different from those of the litigants in U.S.
courts.
Senator Specter. Well, the Supreme Court said in Rasul that
if the territory is under the control of the U.S. Government,
as Guantanamo was, wouldn't that apply to an individual in
custody and control of the U.S. Government anywhere?
Judge Mukasey. The holding in Rasul relating to Guantanamo
related to a location that we control by virtue of a long-term
lease, and it was, as I understood it, a statutorily based
holding. In fact, Congress then passed a statute that changed
the result in Rasul, which it could not have done had the
result been constitutionally based. Whether the result would be
the same if we were talking about the Bagram Air Base or some
other location, I don't know. And that matter, of course, is
now before the Supreme Court, which took cert. in the
Boumediene case, and I think the briefs, in fact, have already
been filed.
Senator Specter. Well, I am interested in your view. You
are going to be called upon to make judgments long before the
Supreme Court will. That is the great importance of the
Attorney General to follow constitutional course, because it
takes the Court a long time.
But on the issue of where the individual is, when we
enacted the detainee treatment legislation in 2005, the
critical provision is this: ``No individual in the custody or
under physical control of the U.S. Government, regardless of
nationality or physical location, shall be subject to cruel,
inhuman, or degrading treatment or punishment.'' I am going to
come to the latter part in a minute, but the relevant part here
for what we are discussing now is that it does not matter where
the ``physical location'' is.
Judge Mukasey. As to that provision, it certainly does not
matter, and that provision relates to cruel, inhuman, and
degrading treatment, which no one is permitted to engage in
regardless of where he or she is.
Senator Specter. Senator Leahy quoted the Bybee memo. I
want to refer to another Department of Justice memo in 2002,
which said that, ``Any effort by Congress to regulate the
interrogations of battlefield combatants would violate the
Constitution's sole vesting of the commander-in-chief authority
of the President.''
Now, the legislation defining the scope of interrogation to
exclude ``cruel, inhuman, or degrading treatment or
punishment'' was enacted after a 90-9 vote in the Senate and a
highly publicized disagreement between President Bush and
Senator McCain in a meeting between the two of them and a
rapprochement, and then the President issued a signing
statement, which said that his authority as commander-in-chief,
authorities under Article II, did not necessarily mean that he
would comply with the legislative provision, which is really
more than a legislative provision since it was negotiated with
the executive branch.
Now, if somebody comes to you as Attorney General, if
confirmed, and they have a line of interrogation which you
conclude violates the language of ``cruel, inhuman, or
degrading,'' and you have the authority of Office of Legal
Counsel saying that the Congress cannot affect the President's
authority on battlefield interrogation, realizing that this
legislation says that regardless of physical location, are you
going to advise the person who brings you the issue that you
follow the statute or you defer to the President's Article II
power?
Judge Mukasey. Well, I think the question assumes that the
President has directed that that method of intelligence,
notwithstanding a finding that it violates the law, should
proceed anyway. And in that case, I have no course but to
follow the law.
Senator Specter. Follow the statute.
Judge Mukasey. Yes, sir.
Senator Specter. The statute controls as opposed to Article
II power. Thank you on that point.
Judge Mukasey, is there any justification for concluding
that the constitutional right to habeas corpus is more limited
than the statutory right to habeas corpus? And you and I
discussed this informally, and it arises in the context of the
Rasul decision by Justice Stevens saying that habeas corpus
applied to Guantanamo and habeas corpus is provided for in the
statute. But Justice Stevens then went on to say that there was
a constitutional right of habeas corpus which emanated from the
Magna Carta in 1215, John at Runnymede. And then, to my
judgment inexplicable, the Court of Appeals for the District of
Columbia said that the change in the statute on habeas corpus
limited the constitutional rights of a detainee,
notwithstanding what Justice Stevens said in Rasul about the
Magna Carta and John at Runnymede.
So is there any justification for construing statutory
rights of habeas corpus more broadly? Or, really, is there any
justification for interpreting the constitutional right to
habeas corpus in a narrower way than the statutory right?
Judge Mukasey. Senator, as I understand it, that question
and related questions are squarely before the Court in
Boumediene, and I am going to have to do--to carry into--
Senator Specter. Judge Mukasey, you are punting now.
Judge Mukasey. That is right, because I am going to have to
do what I was told to do when I was a kid, which is I have to
watch my mouth about this.
Senator Specter. Well, you can punt a little more easily
when that issue is before the Court. I will grant you that. But
there are many issues which are going to come to you where a
Court decision is a long time away. And this Court decision may
be a long time away. They are going to hear argument on it. It
has been very contentious. They denied cert. Then on
reapplication for cert, they granted it, requiring five votes
instead of four.
There are going to be a lot of detainees who are going to
be asserting their rights, and somebody comes to you in the
interim, the Supreme Court has not decided, and they say,
``Attorney General Mukasey, we have got this detainee. We want
to know, since he has a constitutional right to habeas corpus,
whether we have to accord him that right in light of the fact
that the Congress has fiddled around and taken it away.'' What
do you say to him? Here you have got a detainee, you have got a
person, you have a case in controversy right before you, months
before the Supreme Court decides it.
Judge Mukasey. That, as you say, is precisely the case that
is before the Court, and the Department has filed--has already
filed briefs in that case. I am not--
Senator Specter. I filed a brief, too, but that does not
mean anything. The court has not ruled.
Judge Mukasey. The fact that the Court has not heard it
does not mean that I am not--
Senator Specter. Well, my time is up.
Chairman Leahy. Go ahead, if you want to finish your
question.
Senator Specter. I like to set a good example, Judge
Mukasey. I like to quit on time. Thank you very much.
Chairman Leahy. A strong message to some of the rest of us.
Senator Kohl?
Senator Kohl. Thank you, Mr. Chairman.
Judge Mukasey, when Attorney General Gonzales was
nominated, many of us expressed serious reservations about his
lack of independence from the White House, and the record shows
that we were right to be concerned. For example, the White
House and politics generally were very involved in ongoing
prosecutions and charging decisions at the Justice Department,
and politics infringed on personnel decisions, most notably in
the case of U.S. Attorneys, but also regularly in the hiring of
career employees.
Also, the Vice President's office seemed to control much of
the legal advice that the Justice Department produced. We
expect you to vow to us this morning that you will be
independent of the White House and that politically driven
decisionmaking will be eliminated if you are confirmed, but we
are hoping that you can say more than that. You have had some
time since your nomination to think about these problems and
determine a course of action to address them.
So how will you ensure that politics plays no role and that
there is no appearance that politics plays a role in cases
brought by the Justice Department?
Judge Mukasey. The question you asked, of course, is
enormously important because it goes to whether our citizens
and everybody here can have confidence in the administration of
justice in this country. And what I have said in meetings with
people in the past and what I have said here and what I am
going to reiterate, if I am confirmed, is that any attempt to
interfere with a case is not to be countenanced; any call to a
line assistant or to a United States Attorney from a political
person relating to a case is to be cut and curtailed, and that
person, that caller, is to be referred to the few, the very few
people at the Justice Department who can take calls from
elected officials. Regardless of that, hiring is going to be
based solely on competence and ability and dedication and not
based on whether somebody has got an ``R'' or a ``D'' next to
their name.
I served in the Department in the U.S. Attorney's Office in
the Southern District of New York 35 years ago. I was never
asked what my politics were. I did not know the politics of
many of the people there, and still do not. And it did not
matter. It had nothing to do with our job, nothing to do with
the way we did it, and it cannot have anything to do with the
jobs of the people in the Justice Department today.
That is the standard I am going to make very clear, very
precise, and I am going to enforce.
Senator Kohl. Other than saying you will not hire or fire
U.S. Attorneys solely for political reasons, what can you do to
ensure that this practice does end immediately?
Judge Mukasey. I don't know now of any ongoing dispute
involving the dismissal of a United States Attorney for any
such reason, but if there is any such, I am going to get in the
middle of it very fast and stop it and do everything I can to
stop it.
Senator Kohl. What can you say to assure us that the legal
opinions produced by your Justice Department will be based on
the best interpretation of law and not on the White House or
the Vice President's interpretation of the law?
Judge Mukasey. I am going to review the significant
decisions of the Office of Legal Counsel, particularly those
relating to national security, although not exclusively, so as
to make certain that they are sound, soundly reasoned, soundly
based. We have already had the experience of one of those
opinions having to be withdrawn, and I want to make certain
that the others that are in place are sound and change them if
they are not.
I think we need to do that not only so that everybody can
have confidence in the administration of justice, but also so
that the people who are out in the field, the people who work
for agencies, people who may be engaging in interrogation, have
confidence that they are acting on the basis of the law and
that they are not going to have the rug pulled out from under
them at a later time because it is found that somebody had gone
too far in giving them authorization.
It is important that they be able to do their work, and we
are going to expect them to do their work. We want them to get
the information that we need. But we cannot expect them to put
their careers and their freedom on the line if they do not have
confidence that the authorizations that are being given to them
are sound.
Senator Kohl. Justice Department senior positions, as you
know, are filled with acting positions who the President has
not nominated and the Senate has not confirmed. Do you think
this is a problem for the effective management of the
Department and the enforcement of our laws? And if so, what do
you intend to do to change it?
Judge Mukasey. Of course it is a problem. Matters cannot
move forward unless necessary authorizations are given; and if
the offices of people who would give those authorizations and
move those matters forward are vacant, then things stagnate,
and not only does justice not get done, but morale
deteriorates.
I will try to attract people--and I think I can attract
people--who understand the importance of doing the jobs that
are unfilled and get people to do them just as quickly as I
can. It is not something, obviously, that I could do--or can do
before confirmation. I think it would have been regarded as
something of an act of presumption for me to start looking at
people and talking to people and interviewing people and so
forth. But I have thought about it, and it is obviously a top
priority.
Senator Kohl. Judge Mukasey, for decades this country has
been admired around the world for its unwavering commitment to
human rights and the rule of law. There is a growing consensus
that the detention center at Guantanamo Bay is causing great
harm to our reputation around the world. Former Secretary of
State Colin Powell said, and I quote, ``If it was up to me, I'd
close Guantanamo not tomorrow, but today.''
Last year, even the President himself recognized that
Guantanamo has been a focus of international criticism, and he
said, ``I would like to close Guantanamo.''
Do you think that we need to close Guantanamo Bay prison?
And if so, will you recommend that to the President?
Judge Mukasey. I think there are substantial problems with
Guantanamo, both problems of reality and problems of
perception. As to reality, it is my understanding that although
people are humanely treated at Guantanamo, it is more than a
matter of humane treatment. It is a matter of the fact that we
are detaining people apparently without end, and that it has
given us a black eye. And I understand the practicalities that
the President has to deal with beyond the question of whether
people are or are not being humanely treated.
I think a substantial reason for the problem we have had
with Guantanamo is that, to use a bureaucratic expression,
``nobody owns it.'' The Defense Department runs it. There is
obviously an overlay of Justice Department involvement insofar
as we are talking about hearings or not for detainees. The
National Intelligence Director obviously has an interest in
what happens to the people there because they may very well
have or have had information that we need in order to combat
terrorism. So it is out there in a kind of no man's land of
jurisdiction, and control has to be taken.
Senator Kohl. Are you prepared to recommend to the
President that we close Guantanamo?
Judge Mukasey. I am prepared to recommend to the President
that we take the responsible course in dealing with the people
at Guantanamo. I cannot simply say we have to close Guantanamo
because obviously the question then arises of what we do with
the people who were there. And there is now no easy solution to
that.
Senator Kohl. Well, you have had time to think about this.
It has been on the table since the day you were nominated, and
for a long time before that. What are you prepared to do with
Guantanamo? Are you prepared to close it? Are you prepared to
take the steps that are necessary to close it?--which you have
indicated needs to be done. But are you prepared to say to the
President we need to close Guantanamo as soon as we can, we
have several things that need to be done so that we can close
Guantanamo, but the prison needs to be closed?
Judge Mukasey. I think I am prepared to say that we need to
get the best advice and the best ideas that we can and act
responsible, with the goal of closing it down because it is
hurting us. That I am prepared to say, and I think as regards
this President, I think I would be preaching to the converted.
I think he understands that, and I think he has said that he
understands that Guantanamo has hurt us.
Senator Kohl. Is that high on your list of priorities?
Judge Mukasey. Yes, it is, along with--yes, along with
filling vacancies, it is.
Senator Kohl. So we can expect that in the event that you
are confirmed, soon thereafter we will be hearing about
Guantanamo and the things that you believe need to be done to
close it as soon as possible?
Judge Mukasey. I think we can expect that I will try to get
the best people I can to give the best advice that they can and
that I will be making that known to the President. That is what
I am going to do.
Senator Kohl. Do you believe that Congress has the
constitutional authority to prohibit torture?
Judge Mukasey. Yes, I do, and it has.
Senator Kohl. Thank you.
Judge Mukasey, in today's Washington Post there is an
article describing how, since September 11, 2001, the Justice
Department has redirected its efforts away from fighting
violent crime. Referring to the alarming recent increases in
violent street crime, the article quotes a speech this week
from FBI Director Mueller in which he states, ``We are
realizing that national security is as much about reducing the
number of homicides in our streets as it is about reducing the
threat of terrorism.''
Do you agree with Director Mueller and the statements he
made? And if so, what steps will your Justice Department take
to reduce the now growing threat of violence across our
country?
Judge Mukasey. I do, and I think we need to look at both
resource allocation and at the resources we have. It is my
understanding that the terrorism effort, insofar as it took
place within the Justice Department, apart from the FBI, just
the Justice Department excluding the FBI for a moment, that
that effort was undertaken by people who were taken from the
Criminal Division and put into antiterrorism efforts, and that
there may have been programs, including anti-gang programs,
that may have suffered as a result. And that is something that
cannot be tolerated because we cannot turn our society into
something that is not worth preserving in order to preserve it.
That is not a formula for success.
I think we need to figure out staffing. I think we need to
get the budget where it ought to be. And, obviously, if I am
confirmed, I am going to be here not like a mendicant, but I
will be here with, I hope, an intelligent program for putting
it on track and for implementing in particular anti-gang
efforts.
I come from a jurisdiction where violent gangs reduced
virtually an entire borough to a war zone and related parts of
another borough. I know what gangs can do to a city. I saw it.
There is a Violent Gangs Unit in the U.S. Attorney's Office in
my district focusing specifically on that. So I understand the
importance of that, and it is also corrosive because people
attracted to violent gangs obviously are young people, and that
is supposed to be our future.
Senator Kohl. As you know, Judge Mukasey, violent crime, to
which we referring just a minute ago, rose again last year.
Many of us are concerned that the way in which your predecessor
addressed this important issue was not good enough. In each
year of his tenure, he proposed drastic reductions to important
State and local law enforcement funding programs. One program
this administration has continually tried to eliminate is the
very successful and cost-effective COPS universal hiring
program. As funding for more police officers on our streets
decreased or ended, not coincidentally violent crime rose
significantly across our country.
Would you agree that we need a renewed commitment to this
COPS program to counter the surge in violent crime across our
country?
Judge Mukasey. I think the COPS program has been very
successful, and I think we ought to keep it in place.
That said, as I understand the COPS program, the mechanism
that was supposed to be put in place was that there would be an
initial funding for hiring and then States and localities which
saw a good effect from the additional hiring, hopefully had an
effect of reducing crime, would themselves begin to fund their
police departments and State police officers locally and
statewide. But the COPS program was not supposed to be an
ongoing funding program for police departments, and I support
that. I think programs that teach by example and then permit
localities to follow that example are the best use of Federal
resources, and I would encourage it.
Senator Kohl. So you are not about to say that you do
support continuing funding for the COPS program?
Judge Mukasey. I think we ought to fund it in such a way
that it encourages States and localities to continue the
initiative and to keep the momentum going. I think the point
was to start momentum and keep it going with State and local
funds. And that is the principle I support.
Chairman Leahy. Thank you, Senator Kohl.
Senator Hatch will be next, and before we start, just so
you know, we will continue to go back and forth. Judge, I am
going to break about noon, as I mentioned to you earlier. If
you need a break before then, let us know.
Judge Mukasey. Thank you.
Chairman Leahy. The idea, because of the fact that the
President is coming up here for the presentation of the
Congressional Gold Medal to His Holiness the Dalai Lama, a lot
of things slow down in the Capitol. We are moving around, a
number of us who are sponsors of that Gold Medal will--or a
number of us who are friends of the Dalai Lama want to be
there.
We will go now to Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman.
Judge Mukasey, I appreciated the time we had together in my
office. I certainly appreciated the comments by both Senators
Schumer and Lieberman about you and their relationship with
you. I thought they were very good comments.
You have an excellent reputation as a judge, as a
prosecutor, as an attorney. And I for one am very grateful the
President has called you to this position.
Now, I appreciate your willingness to accept this position
at this time, with only a year and a half, a little over a year
to serve, at a time when we really need you, and I think
everybody should appreciate that fact. And I hope that you will
be quickly confirmed at the conclusion of these hearings
because we need you down there at the Justice Department as
early as we can, and to strengthen and pull together that
Department like it needs to be.
Now, if I heard it correctly, when Senator Specter was
asking you about detainee treatment, I thought he characterized
you as saying that a statute necessarily trumps the President's
authority under the Constitution. Now, I may have gotten that
wrong, but I want to clear it up just in case. Does or can a
statute trump the Constitution?
Judge Mukasey. If that is what I said, that is not what I
meant.
Senator Hatch. Well, I know you did not mean that.
Judge Mukasey. As I said earlier, even when the Foreign
Intelligence Surveillance Act was enacted, it, according to the
then Attorney General, did not reach the limit of the
President's authority, which means that the President had
authority between where the statute left off and where his
authority left off. The statute cannot limit that authority
because he has the responsibility to protect the country, and
so he has the authority that is commensurate with that.
But that said, I think it has been obvious from events of
the last several years that everybody is better off--the
President is better off, the Congress is better off, the
country is better off--when everybody is rowing in the same
direction. When the President acts pursuant to his authority
with help from the Congress, with the tools that the Congress
provides, then we do not have to get into butting heads over
who can and who cannot.
Justice Holmes said that when the Constitution defined
three branches of Government, it did not define fields of black
and white. There is gray, and there is always friction at the
borders. We are all much better off when those issues do not
have to be resolved in an either/or fashion.
Senator Hatch. Thank you.
The first area that I would like to discuss beyond that is
the enforcement of our laws against obscenity and pornography.
Obscenity and pornography seem to be more widespread than ever.
It just seems to be pervasive in our media today, especially
the Internet. The consumption of this material harms
individuals, families, communities. The production of this
material victimizes children as well as adults and
disproportionately victimizes women, as far as I can see. I am
pleased to see that the Justice Department is finally finishing
regulations to implement the child pornography statute Congress
passed last year as part of the Adam Walsh Act.
Now, eight members of this Committee were cosponsors of
that legislation, and I hope the Department will get those
regulations finished and rigorously enforce the law with regard
to that.
Turning to the issue of obscenity enforcement, the Justice
Department's record of enforcing the laws against adult
obscenity has been criticized almost continuously for more than
a decade. These cases essentially stopped altogether during the
Clinton administration, and, unfortunately, there is not much
more to show during the Bush administration.
Just last week, the Los Angeles Times published an article
reviewing some of these issues and criticisms. The cases that
are brought focused narrowly on the most extreme material
rather than on the more mainstream obscenity. And perhaps that
narrow approach makes a few convictions more likely, but those
convictions have little or no effect on the obscenity industry,
and most consumers do not access this extreme fringe material.
Now, the larger mainstream obscenity companies will gladly
condemn the extreme marginal producers as if by doing so they
can take some sort of a moral high ground. In my view, the
Justice Department's obscenity enforcement strategy has been
misguided. It focuses on prosecuting too narrow a range of
obscene material. Now, in my view, there are too few FBI agents
and too few prosecutors around the country initiating
investigations and cases in this area.
So I am asking you personally to review this policy
decision about prosecuting extreme rather than mainstream
obscenity and to consider changing it. Would you give some
consideration to that?
Judge Mukasey. I certainly will.
Senator Hatch. I would be grateful to you if you would.
Judge Mukasey. I certainly will, and I do so because I
recognize that even what is referred to conversationally as
``mainstream material'' can have an effect of cheapening
society, of objectifying women, and of endangering children in
a way that we cannot tolerate.
Obviously, we are all aware the Supreme Court has put
limits on the degree to which we can prosecute for content. But
even within those limits, we have to make sure that this stuff
does not affect children and does not wind up undermining
families.
Senator Hatch. Will you review the allocation of resources
and discretion in the FBI field offices to ensure that this
area of law enforcement is given the priority it deserves?
Judge Mukasey. I will.
Senator Hatch. Thank you so much.
Let me ask you about a case you listed in your
questionnaire as one of the ten most important cases that you
have personally worked on, and, of course, that is the Karlin
Communications case, a very important case. As you can imagine,
this case caught my eye since it occurred in my home State of
Utah. Briefly describe your role in this case and why you think
it merits being in your top ten list.
Judge Mukasey. My role in that case was simply that I was
asked to serve, along with actually the principal--the lawyer
whose client that was, my former, my late partner, Harold
Tyler, who was a former Deputy Attorney General, and a company
that was known colloquially as the ``dial-a-porn'' business was
being investigated through the U.S. Attorney's Office in Salt
Lake City, and they asked us to represent them.
It turned out that the statute under which the charges were
proposed to be brought and later were brought was a statute
that did not apply to an operation of that sort. And that was
the nature of the defense that we interposed. I tried first,
unsuccessfully, to persuade the U.S. Attorney's Office and to
persuade a district judge not to permit the filing of an
indictment under a statute that did not apply. After the
indictment was filed, I moved before that same judge, as it
turned out, to dismiss the indictment because the statute did
not apply. He granted that motion, and the case was affirmed by
the Tenth Circuit.
So far as being among the top ten, it is fairly rare that
one gets an indictment dismissed for failure to charge a
Federal crime, which is what happened there, but it had to do
entirely with whether the statute was the appropriate one or
not, and nothing else.
Senator Hatch. That is an appropriate effort by any
attorney under the law and enforce the law, and that shows,
again, I think, how you have acted throughout your lifetime.
Some people might try and construe your representation in that
case wrongly, but I commend you for being the great attorney
you are.
Judge Mukasey. Thank you.
Senator Hatch. Well, let me just--let me see. I still have
a little bit of time. Judge Mukasey, the protection of
intellectual property has always been one of my top interests
here. Currently, Chairman Leahy and I are working on--and
others on this Committee, I have to say, and Senator Specter
has done some yeoman work in this area. But a number of us on
this Committee are trying to come up with the Patent Reform Act
of 2007, which the Senate we hope will consider in the coming
weeks. Now more than ever, Americans' ingenuity continues to
fuel our economy, and it is imperative that we protect new
ideas and investments in innovation and creativity. Piracy and
counterfeiting are now the new face of economic crime around
the world, far exceeding traditional property crimes. Strong
intellectual property protection builds the economies of
developed and developing nations alike. Counterfeiting and
piracy, on the other hand, cripple growth and stifle
innovation.
Nationally, my colleagues and I in the Senate are committed
to curtailing piracy and counterfeiting, but this is a global
problem, and the solution will require a commitment to beef up
domestic enforcement and a governmentwide effort to prevent the
creation of pirated and counterfeited materials.
Furthermore, I believe any solution must take an integrated
approach on both the domestic and international fronts,
incorporating educational, judicial, and enforcement
components. And I believe that the draft proposal released by
the Justice Department earlier this year addressing some of the
enforcement issues is a good start.
Now, what role do you think the Department should have in
this important endeavor?
Judge Mukasey. I think the Department should be aggressive
in protecting the intellectual property, which is as important
as any natural resource that we have. That is what fuels our
economy, and that is what promotes our growth. And I had
occasion as a district judge to enforce intellectual property
laws. There is a way of authorizing private entities when they
believe that their intellectual property is being knocked off
and otherwise duplicated improperly to get a U.S. marshal to go
out and seize both the offending material and the means used to
produce it. And I did that on more than one occasion, and I
think successfully shut down some counterfeiting operations.
Obviously, as you say, this is not just a problem in this
country. This stuff is pouring in from abroad, and we need to
stop it.
Senator Hatch. It is a worldwide problem.
In the case of terrorist Jose Padilla, you ruled that the
Government could designate him as an enemy combatant, but you
also ruled against the arguments of able lawyers, such as James
Comey and Paul Clement, that Padilla was entitled to consult
with counsel. One article, I believe, was in Newsweek about a
month ago describing you as telling Mr. Clement that his
arguments were absurd.
Now, some critics of the previous Attorney General have
said that he was not independent enough of the White House.
Now, will you take that same backbone that you exhibited there,
assuming that Newsweek was accurate, and sense of independence
shown during your judicial service into this new position as an
Attorney General?
Judge Mukasey. Well, I will reject any argument that I feel
is without foundation, and I just want to make one minor
correction, particularly since I have met Paul Clement since
then. He is a superb lawyer.
Senator Hatch. I have no doubt that you will work very
harmoniously with him.
Judge Mukasey. I do not think I actually said his argument
was ``absurd.'' My manner and my ruling may have said that, but
I don't--I think I tried to avoid that word. I think I did
succeed in avoiding it.
Senator Hatch. Well, I only raise it because it was a lot
of fun for me to raise.
[Laughter.]
Senator Hatch. I want you to know how much I appreciate
your willingness to accept this great position--it is an
important position in this country--and how much I personally
care for you and like you and respect you, most importantly
respect you. You are one of the best, and I commend the
President for choosing you, and I really, really thank you for
taking this position in this very short time left in this
administration. I am grateful to you.
Judge Mukasey. Thank you very much.
Chairman Leahy. Senator Feinstein?
Senator Feinstein. Thank you very much, Mr. Chairman, and
welcome, Judge. It is good to have you here, and I also thank
you for taking this position.
You mentioned earlier--and I wanted to clear something up--
that the Terrorist Surveillance Program is not now in effect. I
think you mentioned this in response to Senator Specter's
question. It is, in fact, in effect. It has been brought under
the jurisdiction of the Foreign Intelligence Surveillance
Court, but I do not want anyone to believe it is not in effect.
Judge Mukasey. As I said, I am not read in on classified
programs, and so I am going to make mistakes like that, and I
appreciate being corrected.
Senator Feinstein. Thank you, just for the record.
Now, let me ask you a question about delegation of
authority. Attorney General Gonzales issued an Executive order
on March 1, 2006. It was Order 2808, and I have it here. That
delegated substantial authority to hire and fire to his chief
of staff and the White House Liaison. Those were Kyle Sampson
and Monica Goodling.
Now, technically, the order does not involve U.S.
Attorneys, but it became very clear to me that they played a
role unofficially in the firing of the U.S. Attorneys.
My question to you is: Will you reverse this order?
Judge Mukasey. I didn't understand--I am surprised to hear
that order is still in effect, and I certainly believe that,
just as a way of--as a tool of administration, delegation is
important. Obviously, an Attorney General cannot do everything
himself or herself. But that said, the authority is that of the
Attorney General, and you do not assign to people who are--
particularly people who are regarded as political people, the
authority to make decisions on hiring in contact with other
political people. That is not the way I am going to run the
Department.
Senator Feinstein. Well, I thank you. I would respectfully
suggest you take a look at it, because it does vest authority,
and I quote, ``to take final action in matters pertaining to
the appointment, employment, pay, separation, and general
administration of,'' and then it cites three specific
categories of service employees. So I would hope that you would
take a look at it, and I think it is the nub of the problem
that we had before.
I would like to ask a question about Executive power, and
in Padilla v. Bush, you upheld the President's power to detain
Jose Padilla indefinitely, even though he was a United States
citizen seized on United States soil, without being charged
with any crime. Under an existing statute, no American citizen
could be detained ``except pursuant to an Act of Congress.''
You ruled that the Authorization for the Use of Military
Force was an Act of Congress and was written broadly enough to
authorize Padilla's detention. The Second Circuit disagreed,
saying that the AUMF did not authorize the President to detain
American citizens like Padilla who were seized in the United
States. The Supreme Court did not reach the issue, and it
remains unresolved.
As Attorney General, will you advise the President that the
AUMF authorizes him to seize United States citizens on U.S.
soil and detain them indefinitely without charge?
Judge Mukasey. I think that the authority of the President
to seize U.S. citizens and detain them without charge, leaving
aside for a moment where that happens, was, in fact, sustained
in Hamdi. The Court in Hamdi did rule that the President had
authority to, among other things, seize and detain American
citizens captured on the field of battle. Of course, that
person was captured, I believe, in Afghanistan.
Senator Feinstein. I am talking about the United States.
Judge Mukasey. Hamdi left open the question of where the
battlefield is and who defines the battlefield. And I certainly
cannot say that as of now there is clear authority authorizing
what I thought there was authority to authorize in Padilla.
Senator Feinstein. Thank you very much. I appreciate that.
Also, in your Padilla opinion, you claim that under Civil
War era prize cases, the President has inherent authority to
respond to aggressive acts by third parties and that ``courts
may not review the level of force selected.''
The first question is: How long does this unlimited power
last?
Judge Mukasey. I think the short answer to that is that it
lasts as long as it has to last until the other political
bodies involved in the matter can take the matter up and deal
with it. And obviously Congress did take up the disaster that
was--that fell upon us on September 11 and responded with the
Authorization for the Use of Military Force shortly thereafter.
Senator Feinstein. So you would then agree that the
Congress under its Article I authority would have the right to
set boundaries on military actions?
Judge Mukasey. I think that Congress under its Article I
authority has to provide tools to the President. Where the
provision of tools leaves off and interference with the use of
those tools and the way those tools are used begins is not
something I ever want to see resolved in some definitive way
because of a conflict between the two branches.
Senator Feinstein. I think this is a real point of issue
and could be of issue in the future, and because of this case,
I would be very interested in your advice to the President. We
well could be faced with an exercise of Executive power that we
would want to bind in the future, and so where I am going is:
Do you believe the Congress would have the authority under
Article I to do so?
Judge Mukasey. I think that would very much depend on how
it was done and what it concerned. And I am--the learning curve
that I have had up until now has been very steep, and I think
it is--it is not in my interest and I think it is not in the
general interest for me to be in a position of having to come
up with highly detailed expressions of view on very difficult
subjects, because I want--I am sure we all want that learning
curve to continue after--
Senator Feinstein. I understand that.
Judge Mukasey.--I leave this hearing room, if I am
confirmed.
Senator Feinstein. Right. I understand that. But the
Padilla case caused me--the statement, ``courts may not review
the level of force selected,'' you know, causes some concern.
Let me ask one other question. Would not the President have
to advise the Congress of his intentions and actions?
Judge Mukasey. I think the President does advise the
Congress of intentions and actions. I think that obviously very
much depends on the level of detail we are talking about. The
President would be at the very least unwise to undertake major
initiatives without making sure that everybody is on the same
page and that everybody understands and is comfortable with his
authorization to move forward, because otherwise the country is
riven with dissent, and that is not helpful.
Senator Feinstein. I would agree.
Let me go to the FBI. In the last oversight hearing with
Director Mueller, he spelled out both in his written testimony
and I asked him questions about the priorities of the FBI, and,
in fact, violent crime was No. 8 of eight priorities. Well, in
the last 2 years, violent crime in the United States has
increased, and I am very concerned about it.
Director Mueller also said that the funding staffing level
for FBI criminal case agents has decreased by almost a thousand
agents--that is 18 percent--since 9/11.
My question to you is: Will you look into this? Will you
look into this prioritization? You spoke about gangs and their
activities, and I am one that believes that we have a real
problem with gangs in the United States. Certainly in my State,
California, and I believe in every medium- and large-size city
in this country, there are, in fact, operative gangs that
practice violent crime.
So the question I have of you is: Would you make overseeing
these priorities a priority of yours?
Judge Mukasey. I certainly will, and I will look at the
priorities, and I am obviously particularly interested to find
out what the other seven priorities are. But there is no excuse
for making violent gangs other than a very substantial
priority.
Senator Feinstein. I appreciate that.
Now, in reviewing your record--and this is only important
in that it may be a harbinger of how you would view civil
rights--we found a case--and it is U.S. v. New York Police
Department. It is about a female police officer who was raped
by her male colleague. The issue was whether the female victim
was treated differently by the employer than the male
assailant. And the facts of the case reflected that the victim
did not tell the truth about the events, had not secured her
weapon, which was eventually used against her. However, it was
not disputed that she was raped or that a bullet was fired into
her bed. The victim was repeatedly questioned about the attack,
placed on restricted duty, charge with making false statements,
and eventually fired.
The assailant was not interviewed until 8 months after the
attack and 2 months after Karen Sorluco was fired, nor was he
reprimanded or punished in any way.
You were the trial judge on this case, and you decided that
it should not be heard by a jury, and you granted summary
judgment. The Second Circuit disagreed and ordered a jury
trial. After hearing all the evidence, a jury agreed that the
female victim had been treated differently than the male
officer and awarded her over $260,000 in damages.
You vacated that verdict. She appealed and again the Second
Circuit overruled your decision, stating that you were wrong to
substitute your judgment for the jury's, and that the New York
Police Department tragically failed to show any sensitivity to
the physical trauma and resulting psychological manifestations
commonly experienced by rape victims.
Now, as you look at this case in hindsight, and as I look
at the case and am concerned about the Civil Rights Division of
the Department of Justice at this point in time, is this a
showing of your views? Or do you see it as an unusual case?
Judge Mukasey. It is, to say the very least, it is a stark
euphemism to say that it is an unusual case. The only issue
presented to the fact finder in that case--and as I understood
it, presented to me--was not whether the police department
acted sensibly or humanely or certainly not as I would have
acted. The only issue as I saw it was whether they had acted
unlawfully in their treatment.
And I wrote a decision setting out what I thought the
evidence was that indicated that they could not be reasonably
found to have acted unlawfully. And I set it out in detail so
that the Court of Appeals could understand how I had reached
the decision I had reached, and so that, if necessary, they
could--as, in fact, they did--reverse the case.
It was, as you say, a very unusual case--I am sorry.
Chairman Leahy. No, I am sorry. Go ahead. Finish your--
Judge Mukasey. I guess that is the kind of narrow answer to
the narrow question, but there is a much broader question,
which is the question about harbinger and basically where do I
stand on civil rights--on women's issues specifically and on
civil rights generally. And there I have a record of 40 years
of service as a lawyer, as an Assistant U.S. Attorney, as a
judge, in my interactions with my colleagues, with my
employees, including my law clerks, half of whom were women,
and each of them hired on the merits--on the merits.
In my own personal life, I at one time belonged to a club
that restricted membership to men, and I tried to undermine
that, sponsored for membership a woman whose name did not
indicate that she was a woman. And we went through a process,
including letters of recommendation without using the pronoun,
and saw how far I could go, and it was discovered and she was
rejected. And then there were two votes by that club, both of
which came out against admitting women. And at that point, I
pushed back and said, ``I have had enough,'' and I withdrew.
That is just an anecdote, but it, I think, indicates what
my personal standard is, and my standard that I would bring to
the Department.
So far as the Civil Rights Division is concerned, that
Division occupies a very special place because the civil rights
movement in general has been one of the finest expressions of
the genius of American politics that it is possible to imagine.
The--
Chairman Leahy. We can go back onto the same question,
obviously, in Senator Feinstein's followup time. I agree with
what you say about the Civil Rights Division. There are going
to be a number of questions on that because of some of the
things that have been done there.
What I intend to do is have Senator Grassley ask questions.
We are going to try to stick within our time, then go to
Senator Feingold. We will then close or recess with Senator
Feingold and go back to--and if I am not here, Senator
Feingold, if you would please recess the hearing until after
the matter of the Dalai Lama.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Leahy. That will give you plenty of time, too, to
relax, visit with your family, and have some lunch.
Judge Mukasey. Thank you.
Chairman Leahy. Senator Grassley, go ahead, sir.
Senator Grassley. Judge, congratulations on your
appointment. I had a nice talk with you in my office. I visited
with you then about some issues, and I said I would probably
ask questions on those issues for the record. And so basically
I am going to stick within that guideline. If I throw you a
curve ball, I will welcome answers in writing if you do not
feel comfortable.
Judge Mukasey. I will try to hit a curve ball.
Senator Grassley. OK. One topic that is near and dear to my
heart, as I told you, is the Federal False Claims Act. This is
a law signed by President Lincoln, but it was intended to
recover Government money lost as a result of war profiteers who
sold the Government faulty goods during the Civil War. It
needed to be updated, and so in 1986, I passed the False Claims
Act to do that. The goals of that amendment of 1986 remain just
as important today or just as important as they were 150 years
ago. We have recovered $20 billion of money, taxpayers' money
that would have otherwise been lost and gone forever. In fact,
I think maybe, you know, the deterrent effect probably has
saved a lot more money than that, but you cannot measure that.
The bottom line is that there is tremendous benefits to the Act
and to its aggressive enforcement.
Unfortunately, the False Claims Act has been under constant
attack since President Reagan signed it in 1986. Opponents have
tried to gut it through work of Congress. They have tried to
get the Justice Department to slow down enforcement, and they
have brought lawsuit upon lawsuit to water the Act down in the
courts.
Well, in large measure, the False Claims Act has stood the
test of the time, including even challenges to its
constitutionality. But the next Attorney General and every
Attorney General needs to continue to support this law and
appreciate the benefits that a vigorously enforced False Claims
Act can bring about.
Judge, if you are confirmed, what actions will you take to
support and strengthen the Justice Department's program to
prosecute false claims cases?
Judge Mukasey. Well, as you know, the mechanism for
implementing False Claims Act charges begins initially with
people who could later be witnesses, people who have knowledge
of dishonest behavior, behavior that hurts the Government, and
they come in and file lawsuits on their own, which are then
sealed and sent to the Justice Department so that it can decide
whether the resources of the Justice Department, after
investigation, whether those resources should be put behind
that lawsuit and whether that lawsuit should then be used to
recover Federal money and put an end to Federal waste. Those
are enormously important.
I had, I believe, only one such lawsuit in my tenure, but I
tried to treat it with the seriousness it deserved. And the
Department is going to have to also treat those cases with the
seriousness they deserve, and each U.S. Attorney's Office is
going to have to be alert to filing of such a case and to
following up on such a case and to interacting with Main
Justice if they have to, to get resources to push such cases,
because they result, as you say, not only in enormous recovery,
but they have a great deterrent value.
Senator Grassley. I think you have answered my second
question, at least the first part of it, and that is, you
obviously seem to vigorously support the Act and its
prosecutions. I told you about some attempts to weaken it. I
would hope that you would commit to not bowing to outside
pressure to weaken the Act.
Judge Mukasey. I am not going to bow to pressure from any
direction to weaken the Act.
Senator Grassley. Would you pledge to work cooperatively
with qui tam whistleblowers--and I think you have answered
partly that by saying you were going to consider these cases,
and they had to be there for you to consider. But would you
cooperate with qui tam whistleblowers that file false claims
cases and ensure that those cases are reviewed promptly by the
Justice Department and do not languish under seal? Because that
is a problem we have come up against.
Judge Mukasey. I am going to try to make sure that they get
reviewed, both promptly and fairly.
Senator Grassley. Then let me ask you about a process,
about this under seal process. Would you provide Congress with
regular updates on the status of False Claims Act cases,
including statistics as to how many are under seal and the
average length of time a case has been under seal?
Judge Mukasey. I am going to examine into whether those
statistics can be gathered. I don't know how easy or hard it is
to find that out, but I think it is an important thing to find
out.
Senator Grassley. Well, at least you know that is one of
the problems we need to know, as long as we oversight this
legislation.
A problem that the False Claims Act has encountered has
been the courts placing jurisdictional hurdles on the law that
clearly were not intended by Congress. For example, in the
Totten case, the D.C. Circuit limited the application of the
False Claims Act to Government grantees. In that case, it was
Amtrak, because the court determine that Amtrak employees were
not Government employees within the terms of the Act.
Earlier this year, the Supreme Court limited the definition
of ``original source'' under the Act in the Rockwell
International case. Not only are these two cases contrary to
the original intent of the law, they place procedural and
jurisdictional hurdles in the way of the U.S. Government and
the qui tam relators who seek to recover Government money lost
to fraud, thus weakening the effectiveness of the law.
In order to fix these inaccurate judicial interpretations,
I have introduced S. 2041, the False Claims Act Correction Act
of 2007, with several of my Judiciary Committee colleagues. I
have asked the Department to comment on this legislation.
However, Judge Mukasey, I want to hear from you that you will
support my efforts to ensure the False Claims Act is clarified
to meet the original goals of the 1986 amendments.
So would you agree to work with me to fix these negative
interpretations of the False Claims Act and to bring court
cases back in line with the intent of the 1986 amendments?
Judge Mukasey. I will certainly work with you to do
whatever we can do to make sure that the qui tam legislation is
enforced the way it was meant to be enforced.
Senator Grassley. This next question on the same point is
easier to answer. Could we get a timely comment from the
Justice Department on S. 2041 after you are sworn in?
Judge Mukasey. Obviously, I am going to have to find out
where in the Justice Department that particular measure is. But
I will find it out and let's see whether we can get a timely
comment, because that is necessary.
Senator Grassley. When we met in September, we discussed my
congressional oversight efforts and how I take that
constitutional responsibility seriously. Oversight is a
critically important part in helping to make Government more
transparent, more accountable, more effective. Everyone
benefits from congressional oversight. More importantly,
oversight lets the American taxpayers understand what their
hard-earned money is buying--or maybe being wasted on, as I
just gave a speech on the Senate floor in regard to the GSA on
this very issue. So I hope that you appreciate the role
Congress has in conducting oversight over the activities of the
executive branch, including your own Department. I trust that
you will be responsive to my oversight activities, and I expect
that my questions and document requests will be answered in a
timely and complete fashion.
Judge, do I have your assurances that you will assist in my
oversight activities, be responsive to requests not just from
me but from Congress as a whole, help me to make the Justice
Department more accountable to the American people? And I am
not asking of your Department anything I would not ask of any
department head.
Judge Mukasey. You have that assurance.
Senator Grassley. As part of my ongoing oversight efforts
with the Department, meaning your Department, and its
subordinate agencies such as the FBI, I have made extensive
document requests and requests for interviews with agents and
attorneys. Oftentimes, these requests for interviews are
rebuffed, and my requests for documents are delayed due to the
lengthy process of ``internal clearance'' at both the agency
and the Department. And, obviously, those two words, ``internal
clearance,'' remind me of nothing but a stonewall.
One noteworthy example among many others is a document
request to the FBI for unclassified--I want to emphasize
unclassified--e-mails related to the issuance of exigent
letters in connection with the use of National Security
Letters. Although I sent this request to the FBI Director on
March 19, 2007, I have gotten nothing so far, despite
assurances from the FBI officials to my staff that they were
``given to the Department''--again, that word--``for
clearance.'' Another stonewall. I guess it is like saying,
``Mr. Mukasey, can you tear down that wall? ''
But, anyway, waiting over 7 months for unclassified e-mails
to such an important oversight matter is unacceptable. I am
concerned that both the FBI and the Justice Department
clearance hinders the oversight process and may be just another
tactic to slow down congressional oversight.
So, Judge, will you commit to ensuring that my document
requests of both the Department and subordinate DOJ agencies,
including the FBI, are fulfilled in a timely manner and do not
languish in the clearance process or are not going to be
stonewalled?
Judge Mukasey. I am going to assure that there is not going
to be any stonewalling. I ought to point out, though, that in
particular as the NSL issue, there are ongoing investigations
there. There has been an investigation by OIG, but there is
more investigating going on, as I understand it, and that may
be part of the reason why it is not quite as easy as it may
seem to clear matters, because that investigation has to be
pursued.
I will certainly look into what the requests are and
whether the information can be provided in some convenient form
that does not in some way step on the ongoing investigation.
Senator Grassley. It would seem to me like in the words of
the Department, it was--or in the words of the FBI, it was
given to the Department ``for clearance.'' It would seem to me
like at least we should have been told if that is what is
holding them up. We were told nothing.
Judge, will you review the clearance process at the
Department--this may even be more important--if there is
something screwy about this clearance process, to ensure that
it is not just a way to put up road blocks and further delay
production of documents to Congress?
Judge Mukasey. I am certainly going to review the clearance
process to make sure that it is, in fact, a clearance process
and not simply a black hole.
Senator Grassley. Will you ensure that my outstanding--
well, you have answered that.
Judge Mukasey, I have been an outspoken advocate for
whistleblowers because I value the candid, unfiltered
information that they provide to Congress about executive
branch activities. At the Justice Department, I watched
carefully the treatment of whistleblowers by the FBI and have
been provided assurances that past practices of retaliation
against whistleblowers are over. This includes assurances that
the FBI has been working to ensure integrity within the Office
of Professional Responsibility, which itself has had internal
problems such as retaliation against FBI whistleblowers.
One, could you please address what safeguards you would put
in place to ensure that all FBI whistleblowers are not subject
to retaliation, be it whether it is the OPR or elsewhere within
the FBI or the Justice Department?
Judge Mukasey. I think I will talk to Director Mueller
about the way in which the FBI deals with complaints and make
sure that those complaints get a fair hearing, and that the
treatment of people who bring complaints can in no way be
characterized as retaliation, that those people ought to be--
people ought to be encouraged to come forward. There is to be a
designated person to whom they come forward, and that they
should be protected.
Senator Grassley. If you keep making that statement within
the Justice Department, you will find out a lot of things that
are wrong, but you will find out also that there is a lot of
retaliation. But you might discourage a lot of that
retaliation, and so I appreciate very much your comment.
I have learned that the FBI and the Justice Department
Office of Inspector General have been using an overly broad
non-disclosure form, and I think that this was supposed to--
this is what I am talking about here, and my staff will bring
that to you. Let me start over again.
I have learned that the FBI and the Justice Department
Office of Inspector General have been using an overly broad--my
time is up?
Senator Feingold. [Presiding.] It is, Senator Grassley.
Senator Grassley. Yes, I am sorry. I am going to ask you to
respond to these questions in writing because I should not
abuse my time, and thank you very much.
Judge Mukasey. Thank you very much.
Senator Feingold. Thank you, Senator Grassley. And I thank
the Chair for allowing me to get my round in this segment.
Thank you, Judge, for being here, for your willingness to
serve our country in this capacity. I greatly enjoyed the
cordiality and the quality of our conversation that we had in
my office, and I will certainly say, although I do not agree
with everything you are saying, you are a much more responsive
witness and nominee than we had in the last instance. And I am
grateful for that and for the thoughtfulness of your answers so
far today.
When we met a few weeks ago, I asked about your view of the
legality of the NSA's warrantless wiretapping program as
described by the President. You said that you were ``agnostic''
about whether the President can authorize violations of a
statutory criminal prohibition. Both Senator Leahy and Senator
Hatch have brought this up, but this was a key issue in my
consideration of the nomination of the last Attorney General,
so I want to return to it.
I agree with you, we are, of course, better off if we do
not have conflicts between the branches. But conflicts do
arise. Conflicts have arisen. And the U.S. Supreme Court has
serious and detailed jurisprudence in this area. I do not think
it is simply a matter of there being gray areas. I think there
is a record and there are cases that help inform us, and I am
sure you, with your experience and excellent record, would
agree with that.
Now, you have had several weeks to consider the question I
asked you, so I will ask you again: Do you believe that the
President has the constitutional power to authorize violations
of the criminal law when acting as commander-in-chief?
Judge Mukasey. The reason for my expression of
agnosticism--and I thought it concerned the Terrorist
Surveillance Program--was that I am not familiar with that
program. I cannot possibly be familiar with that program. And
for me to make a categorical statement with regard to that
program one way or the other I think would be enormously
irresponsible.
Senator Feingold. Well, I think with regard to the law,
though, we can talk about the warrantless wiretapping program
without you knowing all the details. Let's take this. Do you
agree that under Justice Jackson's three-part test the
President's authority to authorize warrantless domestic foreign
intelligence wiretaps without complying with FISA would be at
its lowest ebb in light of the criminal prohibition in FISA?
That seems to me to be something you can answer.
Judge Mukasey. I think under that analysis, the President's
authority, to the extent that it is not a war-based authority
directly involving a war, is at its lowest ebb.
Senator Feingold. In any event, wouldn't it be at its
lowest ebb in this circumstance?
Judge Mukasey. It is certainly at its lowest ebb because it
does not have congressional authorization.
Senator Feingold. And do you think there are situations
where the President nonetheless could direct Government
employees to violate FISA even where his power, as you have
suggested it is, is at its lowest ebb under Justice Jackson's
test?
Judge Mukasey. Attorney General Bell said that FISA,
certainly as originally enacted, did not go to the limit of the
President's authority, and in the area between where that
statutory authority left off and where his authority left off
under the Constitution, on Judge Bell's view--and it is one I
share--I think he would have the authority to act. I think it
is important to recognize that the Fourth Amendment bars
unreasonable searches. It then goes on to speak of when a
warrant is required and when it is not. But there is very
scant, if any, case law on the question of whether intelligence
gathering, as distinct from gathering of evidence for criminal
cases, is something that may very well be much more flexible
than matters relating to the gathering of evidence for
presentation in a criminal case.
Senator Feingold. I guess I would say, Judge, in light of
the Jackson test, which you have certainly said is relevant,
and the clear language of the FISA statute, I find your
equivocation here somewhat troubling. A prestigious group of
law professors wrote the following to the Committee in 2006:
``Every time the Supreme Court has confronted a statute
limiting the commander-in-chief's authority, it has upheld the
statute.'' And FISA specifically states that it is the
exclusive means for conducting foreign intelligence
surveillance of people in the United States, indicating
Congress did not intend to leave any room for what Senator
Leahy referred to as a ``commander-in-chief override.''
So this is, in fact, right in the core of being about these
intelligence issues, and Congress has spoken. I think this is a
very important principle, and I think the Attorney General of
the United States should be comfortable with that. Would you
like to respond?
Judge Mukasey. I think in large measure, because I do not
know what the program involves and where the statute leaves off
and the program begins, I have to limit my response to what it
has been up until now.
Senator Feingold. Well, for the moment I will take
``agnostic'' as better than simply adhering to some extreme
notion of commander-in-chief power. But I certainly hope as you
become familiar with the program, you realize what I believe is
to be the case, that the statute is exclusive in this area and
that it does control.
You have been very critical, Judge, and even dismissive on
occasions, of people who raise concerns about the PATRIOT Act.
In 2004, you gave a speech on it, and you wrote a lengthy piece
in the Wall Street Journal. How did you come to write this
piece? And why did you decide to write about this particular
topic?
Judge Mukasey. The piece was not written for the Wall
Street Journal. I received an award in that year, and it was
expected that the recipient of the award would respond with
remarks, and I responded with remarks relating to the PATRIOT
Act. And it--
Senator Feingold. What award was that?
Judge Mukasey. It was the Learned Hand Medal of the Federal
Bar Council, an award of which I will tell you I am very proud.
Senator Feingold. Absolutely.
Judge Mukasey. And I responded with remarks relating to the
PATRIOT Act, and of what I then thought and, frankly, still
think were some excessive criticisms of it, some of them
without any view of what was in it and what I was recommending
to my audience, which was an audience of lawyers, is that they
get involved in the debate, that they look at the statute, that
they propose amendments to it if they thought they were
necessary, but that they participate in the debate in an
intelligent, informed way, and not in a way that was just
unmoored from reality.
Senator Feingold. Which, frankly, is precisely what many of
us tried to do from day one as they tried to pass the bill. But
how did you conduct your research in writing this piece?
Judge Mukasey. I conducted my research in writing the piece
on looking at some provisions of the statute and at reading
some of the criticisms that had been leveled at it that I
thought were not justified.
Senator Feingold. And did you rely solely on administration
documents and the PATRIOT Act, or did you go into some
independent materials?
Judge Mukasey. I did not have administration documents
relating to the PATRIOT Act. I had the PATRIOT Act.
Senator Feingold. So you pretty much had just the words of
the statute and some articles about it that were critical that
you did not agree with?
Judge Mukasey. Correct.
Senator Feingold. Well, my sense is that your speech did
not seem to take seriously the arguments on the other side. I
understand that the PATRIOT Act became a symbol of Government
excesses after September 11th and that people often blame the
PATRIOT Act for executive branch actions that, you are correct
in pointing out, sometimes did not have to do with the PATRIOT
Act. That is a fair statement. But many serious people did have
legitimate concerns about some provisions of that legislation,
many of which have been borne out in a very dramatic way by
later events and court decisions.
Your speech really kind of suggested that there were no
such legitimate concerns. I would like to know if there were
any other sources that you relied on to evaluate the arguments
of the other side other than the statute. You have answered
that it was simply the language of the statute, but I am
wondering if there was anything else to it.
Judge Mukasey. It was the language of the statute and the
criticisms. I sat and composed that in my home. I did not have
access to any other material.
Senator Feingold. I guess, you know, that concerns me
because I think there is very serious debate on both sides on
this issue, and these provisions have been proven on a number
of occasions, in particular with regard to National Security
Letters. A really frightful report from the Inspector General,
indicating that the failure of Congress to nail down the
statutory language properly led to enormous abuses, suggests
that the concerns that were raised by critics were real and had
merit.
On more than one occasion, you have described concerns
about civil liberties implications of the PATRIOT Act as
``recreational hysteria.'' Despite your very appropriate and
respectful approach in general, I think that one goes a little
beyond respectful disagreement. It reminds me a little bit of
Attorney General Ashcroft's infamous characterization before
this Committee of critics as ``chasing phantoms of lost
liberty.'' I voted for Attorney General Ashcroft, and I agree
with Senator Schumer's remarks that he has proven on a number
of occasions to have stood up for the rule of law in tough
situations. But that comment suggests to me a little bit of a
troubling disregard for the seriousness of this issue.
Since you first made the comment, three Federal judges have
struck down provisions of the PATRIOT Act as unconstitutional.
Are these judges engaging in recreational hysteria? Or do you
think perhaps a re-evaluation of your criticism might be
needed?
Judge Mukasey. I certainly do not think that any Federal
judge of whom I was aware who dealt with any issue under the
PATRIOT Act was engaging in recreational hysteria. What I had
in mind were people who used it as a shorthand for everything
that terrified them, regardless of whether it was in the
statute or
