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32–154 PDF 2007

S. HRG. 109–750

CONFIRMATION HEARING ON THE NOMINATION

OF TIMOTHY ELLIOTT FLANIGAN TO BE DEPUTY ATTORNEY GENERAL

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

JULY 26, 2005

Serial No. J–109–62

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 6

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 4

prepared statement .......................................................................................... 140

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1

letter .................................................................................................................. 143

PRESENTERS 

Allen, Hon. George, a U.S. Senator from the State of Virginia presenting 

Timothy Elliott Flanigan, Nominee to be Deputy Attorney General, Washington, D.C. ........................................................................................................... 3

Warner, Hon. John, a U.S. Senator from the State of Virginia presenting 

Timothy Elliott Flanigan, Nominee to be Deputy Attorney General, Washington, D.C. ........................................................................................................... 2

STATEMENT OF THE NOMINEE 

Flanigan, Timothy Elliott, of Virginia, Nominee to be Deputy Attorney General, Washington, D.C. ......................................................................................... 7

Questionnaire .................................................................................................... 26

QUESTIONS AND ANSWERS 

Responses of Timothy Elliott Flanigan to questions submitted by Senators 

Leahy, Feingold, Durbin and Kennedy .............................................................. 94

SUBMISSION FOR THE RECORD 

Warner, Hon. John, a U.S. Senator from the State of Virginia, prepared 

statement .............................................................................................................. 145

(1)

NOMINATION OF TIMOTHY ELLIOTT FLANIGAN, OF VIRGINIA, TO BE DEPUTY ATTORNEY GENERAL 

TUESDAY, JULY 26, 2005 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 4:04 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Arlen Specter, 

Chairman of the Committee, presiding. 

Present: Senators Specter, Hatch, Leahy, Feingold, and Durbin. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Good afternoon, ladies and gentlemen. We 

are convened for the confirmation hearing of Hon. Timothy E. 

Flanigan. I note the presence of the entire Virginia Senatorial delegation, and we will begin momentarily. Senator Leahy is en route, 

but it is just a minute or two after 4:00, our starting time. 

[Pause.] 

Chairman SPECTER. I have just had word that Senator Leahy is 

going to be slightly delayed, so we are going to proceed at this time 

at his request. 

We are proceeding now with the confirmation hearing of Hon. 

Timothy E. Flanigan, who comes to the nomination by President 

Bush to be Deputy Attorney General with a very distinguished 

record. He has an excellent academic record, having received his 

bachelor’s degree from Brigham Young University in 1976 and his 

law degree from the University of Virginia. He was senior law clerk 

to Chief Justice Warren Burger. He has been associated with the 

Who’s Who of law firms in the area: Shearman & Sterling; Jones, 

Day; Mayer, Brown & Platt; McGuire, Woods; White & Case. He 

has served as Deputy Counsel to President George W. Bush, and 

since 2002 has been Senior Vice President at Tyco International. 

He has a very distinguished record in the community field, and 

without objection, his full record will be made a part of the record. 

Let me yield at this time to my distinguished Ranking Member 

whom we had expected to be late, but he is right on queue. Senator 

Leahy? 

Senator LEAHY. Have Senator Warner and Senator Allen spoken? 

Chairman SPECTER. No, but the practice of the Committee is to 

yield to the Ranking Member first. 

2

Senator LEAHY. I have to stay. They do not have to. If you want, 

I would be happy to go after them. It is up to you. 

Chairman SPECTER. Are you suggesting a formal waiver? 

[Laughter.] 

Chairman SPECTER. Senator Warner, in an era of waivers right 

and left— 

Senator LEAHY. I do want to be here long enough. I understand 

that the White House is going to do, in lieu of substance, a symbolic drop of documents outside. I love watching symbolic things, 

and I want to be here for that, but then I want to come back to 

do the substantive ones. So I would just as soon wait. 

Chairman SPECTER. Senator Warner, your presence has been rewarded by a waiver. The senior Senator from Virginia, we are delighted to recognize you for introduction. 

PRESENTATION OF TIMOTHY ELLIOTT FLANIGAN, NOMINEE 

TO BE DEPUTY ATTORNEY GENERAL, BY HON. JOHN WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA 

Senator WARNER. I accept that, Mr. Chairman, and distinguished 

Ranking Member, my long-time friend, and temporary resident of 

Virginia on weekdays, and our distinguished beloved and former 

Chairman, Senator Hatch. 

This is the real thing, I say to Senator Leahy, not a symbolic 

nomination, because this is the President’s nomination of an outstanding, able individual to become the important Deputy Attorney 

General of the United States. And I think at this time, with the 

permission of the Chair and other members, I would like to have 

his wife, Katie, as we say in the Marine Corps, hold muster for 

some 14 children. I think 13 of them have reported for duty today. 

So at this time, I yield the floor to Mrs. Flanigan. 

Mrs. FLANIGAN. I am Katie Flanigan, and let me introduce my 

children and their spouses, if that is all right: our oldest daughter 

Rebecca and her husband, Peter; our son Patrick, and his wife, 

Lupita, and our two granddaughters, Samantha and Jessica; our 

son James and his wife, Rochelle; our son Timothy; our daughter 

Elizabeth, and her husband, Dan; our daughter Maureen and her 

husband, Marc; and her twin sister is the one who is not available. 

She is in Las Vegas— 

Senator WARNER. That is most impressive. I thank you. 

Mrs. FLANIGAN. We are not finished yet. 

Senator WARNER. Oh. 

[Laughter.] 

Mrs. FLANIGAN. Our son Kevin; our son Mark; our son John; our 

daughter Rachel; our daughter Molly; and our twins Sarah and 

Melanie Flanigan. 

Senator WARNER. I repeat, that is most impressive. 

[Laughter.] 

Senator WARNER. Is there anyone else who would like to claim 

kinship? 

[Laughter.] 

Senator WARNER. If not, forever hold your peace. 

Thank you, Mr. Chairman and members of the Committee, and 

the distinguished Chairman has given a number of the accomplishments of this nominee in terms of his legal career. I would just adVerDate 0ct 09 2002 09:33 Feb 26, 2007 Jkt 032154 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\32154.TXT SJUD1 PsN: CMORC
3

dress the importance, as this Committee knows, of the tasks of the 

Deputy and the tremendous amount of responsibility. 

As we all know, the Deputy Attorney General is second in charge 

at the Department of Justice, and as the second in charge, the Deputy plays an indispensable role in advising the Attorney General 

and helping him implement Department of Justice policies. While 

always a challenges task, this position has taken on added importance since September the 11th, as this country has faced and continues to face these new problems associated with the war on terror. Given this reality, it is paramount that America have someone 

of the highest qualifications to fill this role. 

Nearly 2 years ago, I came before this Committee to introduce 

and recommend Jim Comey for this job. Soon afterwards, his nomination was reported favorably from this Committee, and he was 

confirmed by the full Senate by voice vote. Undoubtedly, Jim has 

served this country with distinction as the Deputy Attorney General. And while Tim Flanigan certainly has big shoes to fill, I know 

that Tim is eminently qualified, and I am confident he is up to the 

task. 

I would yield now to my colleague and ask that the balance of 

my statement be placed into the record. 

Chairman SPECTER. Without objection, your full statement will 

be made a part of the record, Senator Warner, and we are delighted to have your colleague Senator Allen with us. 

[The prepared statement of Senator Warner appears as a submission for the record.] 

PRESENTATION OF TIMOTHY ELLIOTT FLANIGAN, NOMINEE 

TO BE DEPUTY ATTORNEY GENERAL, BY HON. GEORGE 

ALLEN, A U.S. SENATOR FROM THE STATE OF VIRGINIA 

Senator ALLEN. Thank you, Mr. Chairman and Ranking Member 

Senator Leahy and Senator Hatch. Thank you all for allowing me 

to present to you and introduce a gentleman I very much support 

as Deputy Attorney General for the United States. As my colleague 

John Warner has stated, Tim Flanigan—and you have stated, in 

fact, Mr. Chairman—is eminently qualified to serve as Deputy Attorney General for the United States. He is a consummate professional, brilliant, diligent, evenhanded, wise, and principled. And he 

is not just an outstanding lawyer, he is a strong leader, a skilled 

manager who is respected by his peers, his bosses, and subordinates alike. He has worked at the highest levels of Government at 

some of the most prestigious law firms. He was actually a partner 

with me for a short while at McGuire, Woods. And he is conversant 

in criminal law, appellate law, international law, national security 

matters, administrative law, corporate law, and litigation. It is no 

wonder that the President has selected this outstanding gentleman, 

Tim Flanigan, to be Deputy Attorney General. 

I am confident that he will serve the people of this Nation as 

well as the Department of Justice very well. He did go to the University of Virginia after going out West to Brigham Young and 

completed law school at the University of Virginia. I will not repeat 

all the aspects that you have mentioned, and my colleague, but he 

has served in a variety of roles in Government, out of Government, 

even for Chief Justice Warren Burger on the Supreme Court and, 

4

in fact, was even asked to collect the papers and begin the preparation of Chief Justice Warren Burger’s biography. 

He also served in the private sector with Tyco, and while some 

people say, gosh, he was with Tyco as senior vice president and 

general counsel, what he did—and it was no easy task—he spearheaded the introduction of vigorous legal compliance programs to 

change the underlying culture at Tyco. He also oversaw the restructuring of a very large corporate law department and was a 

part of seniors leaders of a $40 billion company, and that is big 

even for Federal Government standards. 

In addition to his stellar legal career and service in and out of 

Government, he is involved in a variety of community and religious 

activities, the Church of Latter Day Saints, the Boy Scouts, and 

Brigham Young University. His wonderful family, his wife of 31 

years, and 14 kids and spouses and grandchildren, is otherwise 

known, will be known hereafter as ‘‘the Flanigan precinct of Great 

Falls, Virginia.’’ 

So, Mr. Chairman, let me just say this in conclusion: Thank you 

for holding this hearing. I believe Tim Flanigan truly is an outstanding nominee, great experience, impeccable credentials, the 

right philosophy, but most importantly, the integrity that we would 

want to have a Deputy Attorney General for the United States. 

And I am proud to say he does live in Virginia, and I hope that 

this Committee will be able to move as expeditiously as possible to 

get this nomination to the floor so that Mr. Flanigan can start 

serving the United States of America. 

I thank you, Mr. Chairman, Senator Hatch, and Senator Leahy. 

Chairman SPECTER. Thank you very much, Senator Allen, and 

we know how busy each of you is, and you are, of course, free to 

take leave at this time and we will carry forward. 

I want to thank Senator Leahy for agreeing to a 4 o’clock hearing. This is not a customary time for the Judiciary Committee to 

hold its hearings, but as may be noted, we have a jammed agenda, 

and Senator Leahy was gracious in consenting working overtime, 

really, with all his other duties, to be present for this late afternoon hearing. Senator Leahy? 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman. We are all working 

overtime, and no one more than yourself. 

As Senator Warner said, the Deputy Attorney General is a key 

player in the Department of Justice. He serves in the number two 

position, advises and assists the Attorney General in developing 

and implementing departmental policies and programs, provides 

supervision and direction to all the departments. He is authorized 

to exercise nearly all the power and authority of the Attorney General, and in the absence of the Attorney General, he acts as the Attorney General. 

Now, I list all these responsibilities because it illustrates the importance of the position. He can be called upon in certain circumstances to be the Nation’s top law enforcement officer. The current Deputy, James Comey, and his predecessor, Larry Thompson, 

both had extensive experience serving as prosecutors, and both 

5

were called upon on occasion to serve as our top law enforcement 

officer. 

Mr. Flanigan does not have any such prosecutorial experience. 

He worked in the Office of Legal Counsel in the first Bush administration. He spent some years in a white-collar criminal law practice. Normally I would not find that so troubling, but the current 

Attorney General had no prosecutorial experience before being 

named to his position. But even that might not be as troubling, but 

they are not alone. Alice Fisher, who has been named to serve as 

the head of the Criminal Division, also never worked as a prosecutor. So if Mr. Flanigan and Ms. Fisher are both confirmed by 

the Senate, then none of the top three leaders of the Department 

with the responsibility for criminal law enforcement will have this 

kind of critical experience in this area. They are top law enforcement officers of the country, and I suppose one can start out at the 

top without experience. But I think most Americans would expect 

one of the three to have had some experience in this area. 

I am also concerned at the reports that say that Mr. Flanigan 

played a key role in developing the administration’s policies regarding the interrogation and prosecution of terrorist suspects after 

September 11th. These were horrific acts. We expected the administration to move aggressively to protect the security of the Nation. 

But they took many steps that many in the Congress and even 

some in the executive branch believed went too far. 

In November 2001, the President signed a military order to authorize military commissions. The administration argued that it 

did not need the authorization of Congress to establish the tribunals, which one conservative Republican columnist, William Safire, 

called ‘‘kangaroo courts,’’ because they fell vastly short of the procedural protections either in our criminal courts or in military courtsmartial. News reports suggest that Mr. Flanigan, along with one 

other, wrote the orders, drafted them. 

According to press accounts, he rejected the idea of using criminal courts to try terrorist suspects, believing that access to defense 

lawyers and due process rights would hamper information collection. According to Newsweek, heated debates occurred between the 

White House and the Justice Department, based upon the fact that 

the Solicitor General’s office feared the complete denial of counsel 

to enemy combatants would not withstand Supreme Court review. 

These accounts say that Mr. Flanigan ‘‘argued against any modification, urging that more suspects be designated as enemy combatants.’’ 

And then we understand from public comments he himself has 

made that Mr. Flanigan was involved in reviewing proposed interrogation techniques for terrorist suspects. He reportedly reviewed 

and discussed with DOJ lawyers the infamous ‘‘torture memo’’ 

signed by Jay Bybee, then the head of the Office of Legal Counsel. 

He was involved in discussions of specific interrogation techniques 

such as suffocation, simulated drowning—‘‘waterboarding’’—and so 

on. 

So I think we have to ask him, Did he agree with the Department’s interpretation of the torture statute at the time the memo 

was issued in August 2002? Did he argue against what the Department eventually determined itself to be flawed reasoning? What 

6

did he think of the memo’s assertion of unchecked executive authority, the so-called commander in chief override? 

Now, when I questioned the Attorney General at length on this 

point in his confirmation hearing, he would not state whether he 

disagreed with the memo’s legal analysis on this topic? I hope that 

Mr. Flanigan will be more forthcoming. 

I was interested in a statement he made before the Judiciary 

Committee on another area, the subject of judicial activism. He 

said, ‘‘First among these’’—speaking of judicial activism—‘‘in my 

view, is [the] need for the Judiciary Committee and the full Senate 

to be extraordinarily diligent in examining the judicial philosophy 

of potential nominees. In evaluating judicial nominees, the Senate 

has often been stymied by its inability to obtain evidence of a nominee’s judicial philosophy. In the absence of such evidence, the Senate has often confirmed a nominee on the theory that it could find 

no fault with the nominee. I would reverse the presumption and 

place the burden squarely on the judicial nominee to prove that he 

or she has a well thought out judicial philosophy, one that recognizes the limited role of Federal judges. Such a burden is appropriately borne by one seeking life tenure to wield the awesome judicial power of the United States.’’ 

I want you to know, Mr. Flanigan, I totally agree with you on 

that statement. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Senator Leahy. 

We are joined by the distinguished former Chairman of the Committee, who likes your Brigham Young affiliation. He said to me, 

when your nomination had been sent up, ‘‘Arlen, provide a prompt 

hearing for this very good man,’’ and here we are. 

Senator Hatch, you are recognized. 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. Well, thank you, Senator Specter. So nice of you 

to recognize me. Normally it is just the Chairman and the Ranking 

Member, but he knows how deeply I feel about this nomination, 

having worked with you in a variety of positions and knowing the 

tremendous talents that you have. But, most importantly, you have 

a capacity for decency and honor that cannot be excelled. And to 

me that is more important than anything else. You have all of the 

intellectual credentials. You have all of the legal credentials. You 

have served in the highest levels of this administration and others 

as well. And you are a person of great moral integrity, and proud 

of your family. It is good to see them all again and see them all 

here and this wonderful wife of yours. She is a great companion to 

you. 

So I look forward to supporting you with everything I can, and 

I know that once you get there, you will do as good a job as anybody possibly can. And I just wish you well and will do everything 

in my power to make sure that this gets done as expeditiously as 

possible because it is important. I think Mr. Comey is an excellent 

7

Deputy, and I believe you will make an excellent successor to Mr. 

Comey. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Hatch. 

Mr. Flanigan, would you stand for administration of the oath? 

Raise your right hand. Do you solemnly swear that the testimony 

you give before this Senate Judiciary Committee will be the truth, 

the whole truth, and nothing but the truth, so help you God? 

Mr. FLANIGAN. I do. 

Chairman SPECTER. Mr. Flanigan, I compliment you on your outstanding record, both professionally and family-wise. It is very impressive to see your wife introduce your children, and with your 

family background is a very, very good start. 

You were in the White House, Mr. Flanigan, on September 11, 

2001, and I am sure you followed the President’s reorganization 

plan to better cope with the issues of terrorism. What are your 

plans to implement what the President has proposed if confirmed? 

STATEMENT OF TIMOTHY ELLIOTT FLANIGAN, NOMINEE TO 

BE DEPUTY ATTORNEY GENERAL 

Mr. FLANIGAN. Thank you, Senator. I have followed with interest 

the President’s proposals. I think we have gone through an evolution in the days since 9/11 in our approach to matters of national 

security as they related to the war on terror. I think that the recommendations of the Commission were right on the money, that we 

need a different focus within the Justice Department. I think the 

creation of the National Security Division is a step that the time 

has come for it. 

I think it also presents a management opportunity with respect 

to both the Criminal Division and the FBI to focus the parts of the 

Criminal Division and the FBI that are not terrorism focused, to 

make sure that they maintain the focus on their important missions with respect to violent crime, drugs, and the other issues that 

they face. 

So my hope going forward would be—I am speaking, of course, 

as an outsider at this point in time, but my hope, if I am confirmed, would be to be there to be intimately involved in the reorganization. I know there are many complex issues that need to be 

sorted out in connection with that. Just sitting here, I don’t know 

whether those are legislative issues in addition to management 

issues within the Department. But I do plan to make that one of 

my focuses. 

Chairman SPECTER. Considering the very high priority on the 

war against terrorism, Mr. Flanigan, would you commit to spending a considerable portion of your time—we cannot micromanage 

what you are going to do, but to make the war on terrorism a top 

priority as you assist the Attorney General as the chief operating 

officer of the Department of Justice? 

Mr. FLANIGAN. Yes, Mr. Chairman, I will. And I believe that one 

of the Deputy Attorney General’s most important roles is to ensure 

that the priorities that the Attorney General has laid out for the 

Department are carried into action. And Attorney General 

Gonzales has identified continuing the fight against terrorism as 

8

the number one priority of the Department of Justice—not the only 

priority but its top priority. 

Chairman SPECTER. Will it be your number one priority as well? 

Mr. FLANIGAN. Yes, sir, it will be. 

Chairman SPECTER. Senator Leahy has accurately described the 

issue of prosecutorial experience in the Department of Justice, and 

it is something that he would be especially cognizant of, having 

been a prosecuting attorney himself, as was I. And there are a 

great many nuts and bolts to all the things we lawyers do. What 

would your approach be in your supervisory capacity over the 

Criminal Division to compensate for the lack of hands-on criminal 

law practice that you yourself have not had the opportunity to follow? 

Mr. FLANIGAN. Mr. Chairman, I have the benefit of having 

served in the Department of Justice as the head of the Office of 

Legal Counsel in the President’s father’s administration at a time 

when the Deputy Attorney General was first Bill Barr, later Attorney General of the United States, and then George Terwilliger, and 

I saw how that office functioned well, particularly under Attorney 

General Barr with his—he, like me, had not been a prosecutor before coming to that office, and he made sure that he surrounded 

himself with able Associate Deputies who were skilled prosecutors. 

One of them, I believe—one of them, I know, came from Senator 

Leahy’s home State, George Terwilliger, later my law partner. But 

I think that that is one key, being sure that we have in the Deputy’s office a staff that reflects the prosecutorial expertise. 

Another point would be for me to be cognizant of the role of the 

professional prosecutors within the Department of Justice. I have 

great respect for the men and women who give their professional 

careers over to this element of the pursuit of justice. I listen to 

them. I believe that I can understand them. And I believe that I 

can take their advice. 

Chairman SPECTER. May I make a suggestion to you? Pat, my 

red light is on, but when only three of us are here, when we have 

a panel full, we meticulously observe the time. But this is a very 

important position, and I am going to extend a little. 

Noting Senator Leahy’s assent and Senator Hatch’s lack of objection, my suggestion is to work with some of the career professionals, perhaps two or three, get to know them, find out what they 

are doing, what their analysis is, and spend a little time with 

them, because you have some great career professionals in the Department of Justice. And you can learn a lot by talking to them 

and following them through on case management, case preparation, 

case analysis. But it really is important that in the Criminal Division there be some real experience. 

I would make the same suggestion to you in other fields. Obviously you have to make an allocation of your time, but antitrust, 

again, is a very complex subject, and at least from my review of 

your resume, you have not been involved there. No reason for you 

to be involved in every line. Also on the Civil Rights Division, and 

I would apply that generally as you take a look at the very, very 

major responsibilities that you will have as Deputy Attorney General. 

9

Senator Leahy has noted the issue of interrogation tactics. I 

think it is important for the Committee and the full Senate to 

know what role you had in the formulation of those interrogation 

practices. So would you tell us just exactly what participation you 

had? 

Mr. FLANIGAN. Certainly, Mr. Chairman. And I will preface this 

by giving the Committee some background concerning this issue. 

Sometime, I believe, in the summer of 2002, the Department of 

Justice Office of Legal Counsel contacted the Office of the Counsel 

to the President and indicated that they would like to come brief 

us on a legal opinion, legal analysis that they were preparing for 

another Government agency. The question that had been posed by 

the Government agency fell into the—was a question regarding the 

reach— 

Chairman SPECTER. Let’s be specific about the other Government 

agency—CIA. 

Mr. FLANIGAN. Sorry, Mr. Chairman. Of course, CIA. The question posed by the CIA was whether the reach of the torture statute—they wanted to understand what the words of the torture statute meant and how it would be applied. The background, as I understand it from the contact that we had with the Department of 

Justice, was that the CIA believed that it either had or shortly 

would have in its custody some senior al Qaeda leadership—al 

Qaeda leadership that the CIA reasonably believed would have 

knowledge concerning al Qaeda operations, both past and future al 

Qaeda security procedures, and al Qaeda recruiting procedures as 

well as the identity perhaps of al Qaeda cell members. 

In that context, and in the context of the value of that information, the potential value of that information to the Nation’s fight 

against terrorism, and the need to avoid, prevent if possible a future planned attack, the Agency asked basically what it could do 

beyond sort of a normal Q&A approach to questioning the senior 

al Qaeda leaders. 

That contact resulted in two briefings. As I recall, both briefings 

focused largely on the issue of the legal— 

Chairman SPECTER. Briefings by whom? 

Mr. FLANIGAN. By the Office of Legal Counsel to us. 

Chairman SPECTER. To the White House Counsel? 

Mr. FLANIGAN. Yes, Mr. Chairman, to then White House Counsel 

Gonzales, to myself, and to some others that were involved. 

Chairman SPECTER. Was the CIA briefed as well? 

Mr. FLANIGAN. No, Senator, it was not. The CIA was not present 

for those briefings, as I recall. 

Chairman SPECTER. What was the purpose of the briefings? 

White House Counsel was not going to undertake any of the interrogation. 

Mr. FLANIGAN. Senator, the White House Counsel was neither 

going to undertake the interrogation nor was it his role, or my role, 

for that matter, to pass on legal analysis. That issue—that role is 

committed by statute and by tradition to the Attorney General and 

to the— 

Chairman SPECTER. So then what was the purpose of the briefing? 

10

Mr. FLANIGAN. The purpose of the briefing, as I understood it, 

was to keep the counsel to the President informed regarding this 

issue, presumably in case it should be raised in one of the national 

security-related committees that the counsel of the President sat 

on. 

Chairman SPECTER. And you were one of those briefed? 

Mr. FLANIGAN. Yes, Mr. Chairman, I was. 

Chairman SPECTER. Did you have a speaking part? 

Mr. FLANIGAN. I believe my—the events are far enough in the 

past that my memory is not perfect. I probably asked some questions about the analysis. I don’t recall specific questions that I 

asked. I think I may have asked questions about the statutory 

analysis to be sure that I understood what it was they were after. 

As a former head of the Office of Legal Counsel, my principal concern would have been to be sure that they had the statutory analysis correct, that it sounded correct. I obviously didn’t have the 

time or the resources or the role to redo the research that they 

were doing, but I just needed to hear them talk about the statute 

to be clear that this was something that made sense. 

Chairman SPECTER. Was White House Counsel Gonzales present 

at that briefing? 

Mr. FLANIGAN. Yes, sir. 

Chairman SPECTER. Those briefings? 

Mr. FLANIGAN. Yes. 

Chairman SPECTER. Anybody else from the White House Counsel’s office? 

Mr. FLANIGAN. Not that I recall, Mr. Chairman. 

Chairman SPECTER. Did you have any further participation in 

the issue of interrogation tactics? 

Mr. FLANIGAN. No, Mr. Chairman, not that I recall. Those two 

briefings are the extent of my involvement, as I recall it. 

Chairman SPECTER. Mr. Flanigan, this Committee is going to be 

hearing from FBI Director Mueller tomorrow about the activities of 

the FBI and high-tech purchases. It has been widely noted about 

very substantial expenditures by the Bureau without getting the 

kind of products that they were looking for. What kind of activity 

and supervision would you anticipate to direct at Deputy Attorney 

General, if confirmed, to the FBI on matters such as those? 

Mr. FLANIGAN. Mr. Chairman, I think a rigorous process is necessary for procurements of this magnitude. I am not familiar with 

the process that the FBI has gone through to this point. I would 

anticipate that as Deputy Attorney General that I would work with 

Director Mueller to be sure that the procurement process was one 

that was based on real world considerations, that took into account 

the availability of various options for the type of secure, effective 

system that the FBI needs. 

Chairman SPECTER. Does your experience with Tyco give you any 

special expertise on these kind of procurement matters? 

Mr. FLANIGAN. It gives me some expertise in the area of procuring systems, yes, and it gives me a healthy skepticism for the 

initial picture that you might get in a procurement setting. You 

have to really drill down. We have had, at Tyco, in the law department, have had to drill down considerably into our needs and the 

capabilities of software vendors, and have occasionally been a little 

11

disappointed in what we have received, but I think the lesson that 

I have learned is that you need to be careful and conscientious in 

going about a procurement like that. 

Chairman SPECTER. Mr. Flanigan, when you came in to see me 

on the so-called courtesy visit, I raised with you the question of 

Congressional oversight. And this has been a matter of some understandable tension between the Legislative and Executive 

Branch, and I referenced a letter which I had sent to Judge 

Gonzales back on December 27, 2004, after his courtesy call in anticipation of his confirmation proceedings as Attorney General. 

I want to read this to you so that it is emphatic on the record, 

and so that others can hear it as well, because we are going to be 

engaging in very active oversight and have already started it. I 

have gotten the Attorney General’s acquiescence, but I want your 

acquiescence as well, that is, if you can do so in good conscience. 

No coerced acquiescence here, Mr. Flanigan, but I want to be on 

same wavelength with you. It will take a couple of minutes, but 

will save us a lot of time. 

The broad Congressional authority was summarized as follows in 

a 1995 Congressional research analysis to this effect, quote: ‘‘On review of Congressional investigations that have implicated DOJ or 

DOJ investigations over the past 70 years from the Palmer Raids 

and Teapot Dome to Watergate, and through Iran Contra and 

Rocky Flats demonstrates that DOJ has been consistently obliged 

to submit to Congressional oversight regardless of whether litigation is pending, so that Congress is not delayed unduly in investigating misfeasance, malfeasance or maladministration in DOJ or 

elsewhere. A number of these inquiries spawned seminal Supreme 

Court rulings that today provide a legal foundation for the broad 

Congressional power of inquiry. All were contentious and involved 

executive claims that Committee demands for agency documents 

and testimony were precluded on the basis of constitutional or common law privilege or policy. In the majority of instances reviewed, 

the testimony of subordinate DOJ employees such as line attorneys 

and FBI field agents were informally taken, and included detail 

testimony about specific instances of the Department’s failure to 

prosecute alleged meritorious cases. In all instances investigating 

committees were provided with documents respecting open or 

closed cases that included prosecutorial memoranda, FBI investigative reports, summaries of FBI interviews, memoranda, correspondence prepared during the pendency of cases, confidential instructions outlining the procedures to be followed or undercover operations and the surveillance and arrest of suspects, and documents 

presented to grand juries, not protected from disclosure by Rule 

6(a) of the Federal Rules of Criminal procedures, among other similar sensitive materials.’’ 

That is a fair-sized statement, but it is an abbreviation. Are you 

prepared to make a commitment in your job as Deputy Attorney 

General that you would respect and abide by those standards as 

set forth on Congressional oversight? 

Mr. FLANIGAN. Mr. Chairman, I am aware of the Congressional 

Research Service material that you were kind enough to provide 

me, and I have reviewed it. I believe that I can commit without any 

restraint or without any compulsion, that I will work with you in 

12

good faith and work with the Committee in good faith to resolve 

any requests that the Committee has for information. 

The Congressional Research Service memo represents a view of 

the Congress Research Service with respect to a particular interbranch topic with respect to oversight. The Department of Justice 

has long articulated its own view of that. I think, frankly, Senator, 

in the real world these things get worked out and they should be 

worked out. There are a couple of things that I know you would 

be cautious of, members of the Committee would be cautious of 

with respect to prosecutorial and investigative decisionmaking. We 

don’t want prosecutors or investigators to be completely free of 

oversight, and yet that is a very delicate activity that they are engaged in, and to provide oversight, to conduct oversight runs the 

risk of putting too heavy a hand or thumb on the scale of the issue. 

But as I said, I think real world, in my experience, these things 

are always worked out. I think they can be worked out with acrimony and with bickering, or they can be worked out in good faith. 

I like to count myself on the side of good faith. 

Chairman SPECTER. Well, Mr. Flanigan, I do not agree with you 

that this is the view of CRS. I believe that this is an accurate 

statement of the law. And when you talk about being cautious, that 

is in the eye of the beholder, and the Committee is not insensitive 

to what law enforcement means or what investigations mean. But 

I do not want any misunderstanding when we come in and we 

want to know about pending investigations—and we have had 

these battles with the Department of Justice before about line attorneys and about pending investigations—I am looking for this 

commitment. Good faith is something which we do not have to talk 

about. 

As ranking Federal officials, no doubt, the Deputy Attorney General functions with good faith, as do members of the Judiciary 

Committee. But when you talk about a heavy hand, that depends 

on who is monitoring the scale. I want to be sure when we come 

in that you are committed to these principles. Are you? 

Mr. FLANIGAN. Senator, I am committed to the principles that I 

have outlined to you. 

Chairman SPECTER. Not the ones you have outlined. I am concerned about the principles I have outlined to you. 

Mr. FLANIGAN. Senator, I can’t brush away two centuries of experience in the Executive Branch. I mean President George Washington took a view with respect to oversight concerning, Congressional oversight concerning the Jay Treaty. There are—the Executive Branch has a view here. I think I have represented that view 

and defended it vigorously while I was head of the Office of Legal 

Counsel, and yet I still return, Mr. Chairman, to the point that if 

we are—as you say, if as senior Federal officials we can behave 

reasonably and trust in each other’s good faith that we can get you 

everything you need, everything you require in the oversight context. 

Chairman SPECTER. I will come back to this. I have overstayed 

my welcome. This is the longest I have questioned anybody. 

Senator LEAHY. I found it fascinating because Mr. Flanigan said 

they have been trying to get us information, and the remarkable 

change over the last 41⁄2 years, because many of us, Republicans 

13

and Democrats on this Committee, have asked for information 

along the lines of what the Chairman has talked about, and the 

Department of Justice has just stonewalled, they have not responded, not responded. 

Mr. FLANIGAN. Senator Leahy, I commit to you that I will respond. 

Senator LEAHY. I should say there has been some response, but 

basically the response is, go take a flying leap, but want something 

a little bit more than that. 

Chairman Specter talked about the FBI and how you would be 

involved, What responsibility does the Attorney General and Department of Justice have for the FBI in your view? 

Mr. FLANIGAN. Senator, the organization of the Department 

places the Director of the FBI in a reporting relationship with the 

Deputy Attorney General, who reports to the Attorney General. 

The FBI has always operated with some degree of independence 

and flexibility within that structure, but I think it is fair to say 

that as a matter of organization and as a matter of supervision and 

responsibility, the FBI falls under the Deputy Attorney General’s 

jurisdiction. 

Senator LEAHY. You do not think that—I recall once at a meeting 

with J. Edgar Hoover when I was a young prosecutor, seeing the 

organization which basically was the Director of the FBI here, lines 

going down to the President and down to the Attorney General. I 

would assume that without trying to resurrect the ghost of—you do 

not agree with that? 

Mr. FLANIGAN. I don’t agree with that characterization. Director 

Mueller is a former colleague of mine in the Department of Justice. 

We were both Assistant Attorneys General at the same time. I 

have great respect for him. I think it’s reciprocated. I have—I don’t 

think one gets very far by necessarily command and control tactics 

with the FBI, but I think you do have to establish the, for lack of 

a better term, Senator Leahy, the civilian control over the FBI. 

Senator LEAHY. So if the FBI is still lagging behind in the ability 

of translating information that may be vital to the security of the 

United States, the Justice Department bears some of the responsibility for that? 

Mr. FLANIGAN. Yes, Senator. The Justice Department is the ultimate—holds the ultimate responsibility. 

Senator LEAHY. And the same with the—I realize this was not 

on your watch, nor on the current Attorney General’s watch, so I 

can ask you these questions objectively, I would hope—on the virtual case file, the fiasco, the millions upon millions upon millions 

of dollars wasted in that computer fiasco that the Justice Department bears some responsibility there. 

Mr. FLANIGAN. I intend to work very hard to make sure that that 

is corrected. 

Senator LEAHY. I think everybody in the FBI would like to have 

it corrected I think. 

Mr. FLANIGAN. I’m sure they would. 

Senator LEAHY. I do not think there is anybody there from the 

Director on down that takes much joy in knowing that there are 

things they did not translate that might have saved us from 9/11 

or things that—or computers that are so far behind. I recall shortly 

14

after 9/11 with the FBI explaining how they were sending out flying squads of agents to find out who might have lived along—preliminary thing, who lived on certain streets and whatnot, very 

proud of that. I suggested, ‘‘Well, did you just at least Google the 

addresses first?’’ And I got this blank stare back. We also found 

they had to fly, charter planes and fly pictures of the suspected hijackers to their various offices. They could not e-mail them. I told 

them I would be happy to bring it home and e-mail it from the 

computer in our kitchen if that would make it any easier for them. 

One of the most troubling features I mentioned earlier, the August 1st, 2002 Office of Legal Counsel memo, the so-called Bybee 

memo, was a section that asserted unfettered Executive power. The 

memo argues that the President, acting under his Commander in 

Chief authority, could override the torture statute, could immunize 

from prosecution Federal officials who commit torture on his order. 

Now, this came up during Attorney General Gonzales’ hearing 

last winter, and he said, and I am quoting him now, ‘‘I don’t recall 

today whether or not I was in agreement with all of the analysis. 

I don’t have a disagreement with the conclusions then reached by 

the Department.’’ 

So let me ask you your view. Does the President, acting under 

his Commander in Chief authority, have the power to override the 

laws passed by Congress and immunize from prosecution Federal 

officials who violate those laws under his order? 

Mr. FLANIGAN. Thank you, Senator Leahy, for giving me the opportunity to clarify how I believe on that. 

Senator LEAHY. Sure. I thought you might like that. 

Mr. FLANIGAN. But I have—I think I’d like to start by responding 

in this way. The specific use of that argument in the Office of Legal 

Counsel memorandum from August 2002 was, in my view, inappropriate in a sort of sophomorish way. It was a kitchen sink argument that was thrown in. As I read the memo now, it looks like 

a kitchen sink argument that was thrown in to basically be a belt 

and suspenders argument. It was unnecessary, it was useless. The 

President had already said that we would not torture, and if the 

President says we’re not going to use torture, it is inappropriate for 

the Office of Legal Counsel to gratuitously insert an argument into 

a memorandum that says, well, we could if you told us to, if the 

President told us to. 

Now, more generally—I’m sorry, Senator. 

Senator LEAHY. Well, I was going to say now that you have answered it your way, go back to my original question: does the President, acting under his Commander in Chief authority, have the 

power to override the laws passed by Congress and immunize from 

prosecution Federal officials who violate the laws in his order? 

Does he or does he not? 

Mr. FLANIGAN. You know, Senator, that’s a question where—in 

the first place, I don’t think we get there under the current circumstances. 

Senator LEAHY. I do not care whether we get there in the current 

circumstances. Does he have that power? Is he above the law, in 

other words? 

Mr. FLANIGAN. The President is never above the law. 

15

Senator LEAHY. Can he place other people above the law by immunizing them if they violate the laws under his order? 

Mr. FLANIGAN. No. 

Senator LEAHY. I— 

Mr. FLANIGAN. Happy to elaborate on that if you’d like. 

Senator LEAHY. Feel free. You are more direct on it than the Attorney General was in his confirmation hearing. Go ahead. 

Mr. FLANIGAN. Senator, there are certain aspects of the President’s Commander in Chief power, which are, I think, uniquely entrusted under the Constitution to the President. If the Congress, 

for example—obviously this is a somewhat ridiculous example, but 

if the Congress told the President that he can only roll tanks right 

and never left, or if the Congress told the President they could only 

attack at night, couldn’t attack during the day, I think that intrudes upon the President’s core Commander in Chief power, and 

that law would be unconstitutional as applied to the President’s orders as Commander in Chief. 

With respect to this particular statute— 

Senator LEAHY. There are specific things Congress has under the 

Constitution, only the Congress can declare a war. 

Mr. FLANIGAN. I’m sorry, Senator. Could you repeat that? 

Senator LEAHY. I mean the Congress has certain powers under 

the Constitution, for example, to declare war. 

Mr. FLANIGAN. Yes. Congress certainly does have a very important role in the declaration of war, and in the days following 9/11 

it was my privilege to be up here in this locale talking I believe 

with members of your staff— 

Senator LEAHY. I think I recall. 

Mr. FLANIGAN.—as well as members of other staff in Congress 

about the authorization for the use of military force. 

Senator LEAHY. And I recall we were having the final conference 

on the PATRIOT Act. 

Mr. FLANIGAN. I recall that very well, Senator. 

Senator LEAHY. Where Republican leader Armey and I wanted 

sunset provisions, and you made a very strong case why we should 

not have them, but guess what? We got them. 

Mr. FLANIGAN. Senator, if I lost that one, I’ll still make the argument that sunsetting— 

Senator LEAHY. No, you were very strong in your argument. 

Mr. FLANIGAN. Sunsetting powers given to Federal law enforcement officials, is a signal to those Federal law enforcement officials 

that maybe we’re not really serious about— 

Senator LEAHY. No, no, not at all. That was—I think Speaker 

Hastert, Congressman Armey and I, not normal political bedfellows, made it very clear we were not sending anybody a signal 

that we were not serious, we were sending a very strong signal 

that we expected the administration to be responsive to real oversight, and also very clear signals to both the House and the Senate 

that we fully expected them to do the oversight necessary, because 

if you have a sunset it kind of puts pressure on everybody to prove 

that the law is not working. I remember those times very, very 

well. I was very involved with the PATRIOT Act and the drafting 

of it, just as Senator Specter and I and others were in the drafting 

16

a new PATRIOT Act which actually passed a very diverse Committee unanimously last week. 

But as one who had his first career in law enforcement, I take 

law enforcement matters very, very seriously, and this was to also 

make sure that we in the Congress, both parties, took our responsibility very seriously. 

Mr. FLANIGAN. And, Senator, I take oversight very seriously and 

the need for us to have an accountability with respect to the use 

of those powers. I think we’ve now completely replayed the argument that we had at the time. 

Senator LEAHY. Let me ask you a couple things just from the 

press accounts—and I am quite over my time too, I apologize—but 

press accounts suggest you discussed specific techniques that might 

be used by members of the military or intelligence agencies in interrogating prisoners. Did you advocate for or against any of the 

more severe techniques such as pain, suffocation? 

Mr. FLANIGAN. I did not, Senator. That was not my role. As I responded to Senator Specter, to Chairman Specter, I knew the difference between the role of the White House Counsel’s Office and 

the Office of the Counsel of the President. It was not part of the 

discussion. I was not called upon to make—to urge any particular 

view with respect to any particular method of questioning. 

Senator LEAHY. Do you think that water boarding, in which the 

prisoner is made to believe he is drowning, is that an acceptable 

interrogation technique? 

Mr. FLANIGAN. Senator, I am at a disadvantage here because I 

understand that the discussion of methods that took place in that 

meeting is still classified, and I can’t discuss it. 

Senator LEAHY. I am not asking you about that meeting, I am 

just asking you is water boarding a acceptable interrogation technique? 

Mr. FLANIGAN. I don’t know— 

Senator LEAHY. For people operating under the—people operating as agents of the United States? 

Mr. FLANIGAN. I don’t know enough about the technique, Senator. 

Senator LEAHY. You never described water boarding to a reporter, as to what it was? 

Mr. FLANIGAN. I have, I have a basic understanding as to what 

water boarding is, but I don’t know the effects of it, I don’t know 

the physiological of psychological impact that water boarding may 

have long term. 

Senator LEAHY. Based on the description you made of water 

boarding to a reporter, do you think it is an acceptable technique 

to be used by an agent of the United States? 

Mr. FLANIGAN. I don’t know, Senator. I need to know more about 

the effects of water boarding. And it was not part of that discussion 

for us to make that decision. That was not what was at stake in 

those two briefings that I described for the Chairman. 

Senator LEAHY. If I submit other questions for the record, will 

you answer them? 

Mr. FLANIGAN. Yes, Senator. 

Senator LEAHY. Anybody can work with you on the answers, but 

I want you to review the answers, so when they come here we 

17

know that they are your answers, and not as we have now found, 

that some within the Justice Department at the highest levels say 

when under oath in deposition that the answers they submit to us 

do not come from them. 

Mr. FLANIGAN. Senator, anything that goes in over my name will 

be reviewed and— 

Senator LEAHY. I appreciate that and I admire you for it. Thank 

you. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Leahy. 

Senator Hatch. 

Senator HATCH. Mr. Flanigan, you recognize the role of the Congress, vis-a-vis the role of the Justice Department? 

Mr. FLANIGAN. Yes, Senator. 

Senator HATCH. You realize that we do have to do oversight up 

here, and that you, as I understand it, have fully said that you will 

cooperate fully as long as it is within the law and within the constitutional constraints of the law. 

Mr. FLANIGAN. Yes. I will do that. And I recognize the value of 

oversight also in keeping us on mission, us, assuming I am confirmed to this role, keeping the Department on its mission, keeping 

it doing the things that it’s supposed to do, and doing them well. 

Senator HATCH. With regard to these memoranda that have 

caused such an uproar, you did not prepare them? 

Mr. FLANIGAN. No, Senator, I did not. 

Senator HATCH. You did not advise on them? 

Mr. FLANIGAN. No. 

Senator HATCH. You did not really ask for them, did you, or did 

you— 

Mr. FLANIGAN. No, I did not make a request for that legal advice 

at all. 

Senator HATCH. Is that part of your responsibility, to— 

Mr. FLANIGAN. It was part of my responsibility from time to time 

to request legal advice from the Department of Justice. That is not 

what happened in this case. As I think I mentioned to Chairman 

Specter, the request for this advice came from—directly to the Office of Legal Counsel from the CIA. The first that I heard that the 

question had been asked was when we were called by the Office of 

Legal Counsel and a briefing was proposed. 

Senator HATCH. When you served in these respective positions, 

did you do your very best to be honest and decent and honorable 

in every way? 

Mr. FLANIGAN. Yes, I did. 

Senator HATCH. I think everybody who knows you knows that 

that is a hallmark of your life. 

Mr. FLANIGAN. I hope so, Senator. It’s what I strive for. 

Senator HATCH. That is all we can ask of you up here as well. 

Now, the Justice Department has a wide variety of responsibilities 

and authorities, right? 

Mr. FLANIGAN. Yes. 

Senator HATCH. One of the most important, of course, I criminal 

justice. You have been involved in some criminal cases, mainly 

white collar cases? 

18

Mr. FLANIGAN. I have, Senator. When I was—let me say that my 

involvement goes back to—in criminal matters goes back to my 

time as Assistant Attorney General, when I served as a member of 

Attorney General Barr’s senior management or senior leadership 

team for the Department as a whole, a group in which we frequently had discussions concerning the various matters, the criminal matters that were pending in the Department. I also served in 

what I would say is an adjunct role as counsel to the Deputy Attorney General, and in that regard, in that role came into frequent 

discussion about matters involving criminal prosecutions in the Department. 

Senator HATCH. So—go ahead. 

Mr. FLANIGAN. Later as a white collar practitioner, white collar 

criminal practitioner, as it’s called, I was involved in both criminal 

investigative and other matters. And then in the—when I was in 

the White House Counsel’s Office, of course, I had a pretty thorough exposure to national security law, a refresher course in national security law. And then I would just point out that my experience at Tyco International has largely been in implementing compliance programs in cooperating extensively with the Manhattan 

District Attorney’s Office in their prosecution of Tyco’s former leadership. It’s been a real good opportunity to get exposure to the 

criminal law in the white collar area. 

Senator HATCH. How many years did you serve in the Federal 

Government in these respective positions in the Justice Department and the White House? 

Mr. FLANIGAN. I believe five, Senator. 

Senator HATCH. Five years. So you served in the Justice Department as an Assistant Attorney General? 

Mr. FLANIGAN. Yes. 

Senator HATCH. Among other things. Then you served in the 

White House as Associate White House Counsel, Deputy Associate 

White House Counsel. 

Mr. FLANIGAN. Deputy White House Counsel. 

Senator HATCH. I see. I am very impressed by you and your family. You are leaving a very prestigious private sector general 

counselship in one of the large corporations of America, where I am 

sure you make a considerable amount of money compared to what 

you will make in this job as Deputy Assistant Attorney General of 

the United States. I would just like to know why would you leave 

a job like that, where you can support this tremendous family of 

yours a lot better than you can down there at Justice? Why would 

you do that, to come to work for the U.S. Government, at really 

what is a disadvantageous pay rate? 

Mr. FLANIGAN. Senator Hatch, I note that my wife is not sworn, 

so the tears that she’s crying right now over our departure from 

Tyco are not on the record, but I really believe—and I have taught, 

I have taught my own children, I’ve taught—when I’ve had a 

chance to speak to other groups of young people, I’ve tried to consistently deliver the message that people need to be ready to do 

what you do, what Chairman Specter does, and what many other 

members—the other members of the Committee do, and that is to 

be willing to serve. And for better or for worse, I believe it’s my 

time to serve again. 

19

The Attorney General asked me if I would do this. The President 

has nominated me to do this, and if confirmed by this Committee, 

I hope to do a good job, to render a good account of myself, and 

to provide the service, and hopefully then I’ll return to the private 

sector and continue my other primary obligation of supporting my 

family. 

Senator HATCH. Part of it is you love the country. 

Mr. FLANIGAN. Yes, Senator, I do. 

Senator HATCH. I see my time is up, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Hatch. 

Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Mr. Flanigan, thank you for being here today, and I have a few 

questions to ask. 

News reports have suggested that you, along with an aide to Vice 

President Cheney, drafted the order authorizing military commissions. It was signed by the President in November of 2001. And according to news reports, the drafting process was conducted primarily in secret, and a variety of Government experts were actually frozen out of that process, including military lawyers and State 

Department officials who had years of expertise. 

In many instances it said those experts disagreed with the ultimate decision to go forward with the military commission process 

that failed to provide defendants with basic due process rights. 

Setting aside any disagreements we may have about the military 

commission process itself, please explain if you would, why as a decisionmaker, you did not listen to experts from the military and 

from other agencies in the process of making this very significant 

decision? 

Mr. FLANIGAN. Senator, thank you for that opportunity to explain 

my role here. I think we did have the benefit of experts in the military, in the State Department. There was a process that was going 

on through the National Security Council focused on the development of a military commission approach, and the process was just 

taking too much time for the purposes of my clients in the White 

House. 

And I was asked to participate in this process. I tried to draw 

on the materials that had been pulled together by this group of 

people from the military and from other areas that had been working under the National Security Council. I believe that we accomplished in the end something which was in accordance with their 

views largely in terms of what we would see as a military commission process. 

Now, there’s no doubt that the military commission approach is 

something that’s well established in our Nation’s history. Presidents from George Washington and many in between George Washington and Franklin Roosevelt, used the military commission process in various settings. 

I think that the military—the President’s military commission 

order that establishes the commission, together with the implementing regulations for that order that are contained—that were 

promulgated by Secretary Rumsfeld, create a system which is both 

balanced and fair, one that takes into account the serious national 

security concerns that would arise if, for example, Osama bin 

20

Laden were tried in a United States Federal District Correct, and 

it balances those along with the rights of the defendant. The military commissions specify a fair trial, access to counsel, both military and civilian counsel. I think there’s a lot— 

Senator FEINGOLD. I tell you as I recall, if I recall correctly, that 

the initial product that apparently your—as you said, your client 

asked you to come up with very quickly was deeply flawed, and led 

to an enormous amount of criticism, including by many members 

of this Committee, and that subsequently there were changes 

made. I understand the needs of providing something in a timely 

manner to a client, but I think the fact that the concerns of those 

people that I mentioned were not considered at the beginning, actually made the whole process probably take a little bit longer. 

Let me move on to another question. I understand in 2001, as 

we have already talked about, you were heavily involved in the development and drafting of the USA PATRIOT Act. The 9/11 Commission report noted the controversy over many of the provisions 

of the PATRIOT Act, and indicated that there should be full and 

informed debate over the Act. 

In fact, the report made the following recommendation. Quote: 

‘‘The burden of proof for retaining a particular Government power 

should be on the Executive to explain (A) that the power actually 

materially enhances security; and (B) that there is adequate supervision of the Executive’s use of the powers to ensure protection of 

civil liberties. If the power is granted, there must be adequate 

guidelines and oversight to properly confine its use.’’ 

Do you agree with the Commission’s recommendation, and as 

Deputy Attorney General will you pledge to do everything you can 

do to facilitate a full and informed debate by cooperating with Congress when it asks for information to perform its oversight, and 

will you work with us to develop adequate guidelines to properly 

confine the Executive’s use of its new powers? 

Mr. FLANIGAN. Senator, I agree in large measure with everything 

you have said. I would—I think that ongoing oversight of the use 

of the authorities that are conveyed or that are covered in the PATRIOT Act is a very important role for this Committee, for the 

Congress to play. 

Obviously, the PATRIOT Act deals with the collection in part of 

national security information, and so we have to be careful about 

how we handle that information, how we share it. As an outsider, 

I confess I really don’t, am not completely conversant with all the 

issues regarding sharing that information, but I pledge that I will 

work with the Committee to make sure that you have the information you need to make informed decisions regrading the future of 

those powers. 

Senator FEINGOLD. Thank you, Mr. Flanigan. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Feingold. 

Senator Durbin. 

Senator DURBIN. Thank you, Mr. Chairman. 

Mr. Flanigan, thank you for meeting with me earlier in my office. 

I am sorry that I was not here to see if you were successful in recalling the names of all of your children and family. You told me 

that it would be a challenge for you and— 

21

Mr. FLANIGAN. Mrs. Flanigan spared me that embarrassment. 

Senator DURBIN. That is great. Thank you for that. 

Let me say right off the bat there is one thing that Mr. Flanigan 

has said before this Committee which I think we ought to take to 

heart. When he testified in 1977 this is what he said—1997. He 

said, extraordinarily diligent—this Committee should be extraordinarily diligent in examining the judicial philosophy of potential 

nominees. I would reverse the presumption and place the burden 

squarely on the judicial nominee to prove that he or she has a well 

thought out judicial philosophy. Such a burden is appropriately 

borne by one seeking life tenure to wield the awesome judicial 

power of the United States. 

I think that is a very profound statement and I think it is a good 

guidance for this Committee in considering judicial nominees. And 

though we may disagree on a few things I think—I hope you are 

not going to recant, but I think that was very good guidance for 

this Committee when it considers judicial nominees. 

Mr. FLANIGAN. Thank you, Senator. I will not recant that. I think 

that inquiry into judicial philosophy, by which I mean inquiry into 

how a judge discovers law, where he or she looks for the substance 

of law, is very important and I think it is a key functions that this 

Committee has. I have been privileged to be on the periphery of 

two Supreme Court confirmations involving this committee. I have 

seen how this Committee discharges its duties and I am confident 

that my good friend and former colleague in the Department of 

Justice, John Roberts, will not suffer under the analysis that I laid 

out. 

Senator DURBIN. Thank you very much. Let me go directly to the 

issue we talked about the most in my office and that was the whole 

torture memos at the Department of Justice, the change in the interrogation techniques of prisoners and detainees. I think I came 

to a better understanding of the role that you played, but I want 

to ask again and for the record, is it your belief that it is the policy 

of the United States not to use torture, cruel, degrading or inhumane treatment in the interrogation and treatment of any prisoners in our control, regardless of their status? 

Mr. FLANIGAN. Senator, with respect to torture, let me take that 

in order. I am completely in agreement that torture cannot be the 

policy of the United States. It is an abhorrent practice and it is not 

something that we should do, and our President has been very 

clear about that. 

With respect to the other elements of your statement which I 

think are drawn from the Geneva Convention, as a lawyer, Senator, I am not sure what all of those means. There are perhaps 

international lawyers who believe they are certain what those 

mean. But I think I have some hesitancy in signing on without understanding what a particular phrase means to some of the 

phrases. 

I would say that we have—let me say this,. the President has 

said that we will not treat people inhumanely. That is part of his 

determination at the time that—I believe in February of 2001. So 

I guess I would take very seriously any allegation or suggestion 

that we were treating anyone inhumanely. 

22

Senator DURBIN. I would like you to get back to me, if you could 

fill in some of the answer that you have given, after you have had 

time for reflection. I would like to ask you specifically, in your personal point of view, do you consider mock executions to be inhumane treatment? 

Mr. FLANIGAN. Senator, I am hesitant to comment on specific 

methods of questioning, in part because IO am burdened with some 

knowledge that is classified information and I do not want to inadvertently step over that line. 

Senator DURBIN. Let me spare you then, because I do not want 

you to step over it either. Let me send you written questions and 

as far as you can, tell me your personal point of view. I will refer 

to several interrogation techniques which have been controversial, 

and without disclosing any classified information, I am looking for 

your personal point of view as to whether you consider them to be 

cruel, degrading and inhumane. I will give you the time to reflect 

on that, if you would like to. I do not want to put you on the spot 

on that. 

Mr. FLANIGAN. Thank you, Senator. 

Senator DURBIN. I would also like to ask you about some testimony before this Committee that goes back a few years as well, 

about how we should view and treat judges. I asked you about this 

in my office, and so the record is clear, in Congressional testimony 

before a Subcommittee of Judiciary you suggested ‘‘a frank discussion in the political sphere about impeaching judges might have a 

salutary effect of prompting judges to put aside their own policy 

preferences and adhere to the law.’’ You commented on it in my office. I would like to give you a chance to comment on that here. 

Mr. FLANIGAN. Thank you, Senator. That sentence certainly 

taken in isolation is one that I cannot subscribe to. I believe—after 

our meeting, Senator, I went back and looked at that testimony. I 

believe the sentence before that was an attempt to develop context, 

and I have to say that even after reading it in context that I still 

would say that that was an overstatement, to be sure, and inappropriate to suggest that we should threaten Federal judges as a general matter with impeachment. The sentence before that, I believe,. 

talks about judges who—and I cannot remember the language offhand. 

Senator DURBIN. I want to read it for the record so that you do 

have benefit of putting it in context, if you believe this helps. 

It is, of course, possible that a judge could so abuse the judicial 

power through willful misconstruction of the law that the judicial 

oath would be violated. Then you went to say, a frank discussion 

in the political sphere of the possibility of removal in such cases 

may have the salutary effect of prompting judges to put aside their 

own policy preferences and adhere to the law. 

Mr. FLANIGAN. Senator, I have to, as I believe very sincerely in 

the role of Federal judges and the need that we have. As you and 

I discussed in your office today, Federal judges are defenseless. 

They cannot defend themselves against criticism because they cannot generally speak out on issues. At the same time, they have life 

tenure so they should be immune to a little bit of criticism. But I 

do not believe that we should use impeachment as a threat, generally, to have judges toe the line. I tried in that comment, I think. 

23

inartfully to say that in those most egregious cases where a judge 

willfully violates an oath of office, then—and that is my— 

Senator DURBIN. Thank you. 

Mr. Chairman, would you spare me time for one more question? 

Chairman SPECTER. Yes. Proceed, Senator Durbin. 

Senator DURBIN. Thank you. 

There was a press report this morning that I would like you to 

clear up, in the Chicago Tribune, and it relates to your role as general counsel of Tyco, and the fact that—the article, which may or 

may not be accurate—I want to give you your chance to tell you 

story on this—suggested that your had some supervisory authority 

over the Greenberg, Traurig law firm, and particularly Jack 

Abramoff, who has been a very controversial figure in Washington. 

Could you tell us what your relationship was to him and his lobbying activities? 

Mr. FLANIGAN. Thank you, Senator, I appreciate the chance to 

clarify that. When we arrived at Tyco International as part of the 

new management team, I arrived in December 2002, there was 

very little in the way of infrastructure of any kind at the corporate 

level. Most of the corporate functions needed to be rebuilt and one 

of those was the government relations functions. One of the responsibilities that I received early on was to drill down into the government relations function and see what was there, what could be 

salvaged, and what our challenges were as a company. 

As you might suspect, Senator, we had some reputational issues 

at the time with our former chairman, and former CFO, and former 

general counsel all being under indictment at the time. So I took 

stock with the then head of our government affairs function of who 

was it that we had out there that was doing government affairs 

work for us, and who could step into the breach quickly to help us 

try to turn this awful image that we had around, to start to reflect 

the positive story of this new management team committed to ethics, committed to compliance that we had. 

So I met with several who had been providing services for Tyco. 

One of the lobbyists that Tyco had hired previously was the Greenberg, Traurig firm. I met with the firm. As you might imagine, we 

are a big account so they did a dog and pony show and they 

brought in the person that they said should be in charge of the account, Jack Abramoff. I had not met Jack Abramoff before then, 

had never run across— 

Senator DURBIN. When was this? What was the approximate 

date when that meeting took place? 

Mr. FLANIGAN. Senator, I would have to check on that and get 

back to you. 

Senator DURBIN. Was it a year ago or— 

Mr. FLANIGAN. No, it would be in the spring of 2003. So basically 

we decided, for a variety of reasons including considerations of 

changing horses in midstream and the amount that Greenberg had 

already invested in learning about Tyco, to continue on with that 

relationship. 

We ultimately let the Greenberg, Traurig firm go, as they say, 

following the revelations concerning Jack Abramoff’s conduct, and 

we have issues in the nature of claims involving the Greenberg 

firm which are pending which are, I believe, covered by an attorVerDate 0ct 09 2002 09:33 Feb 26, 2007 Jkt 032154 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\32154.TXT SJUD1 PsN: CMORC
24

ney-client privilege that is not mine to waive. But that is our relationship. 

Senator DURBIN. Did you supervise his activities during the period he worked for Tyco? 

Mr. FLANIGAN. For a period of time after our then head of government affairs left the company and before we hired our new head 

of government affairs, Regina Harsani, I was the one the who was 

responsible on a day to day basis for supervising his activities. 

Senator DURBIN. Thank you very much, and thank you, Mr. 

Chairman. 

Chairman SPECTER. Thank you, Senator Durbin. 

Mr. Flanigan, I want to pursue our understanding of oversight. 

Candidly, I am not satisfied with your answer. I do not think it 

was useful to talk about executive-legislative conflict going back to 

George Washington. I want to have an understanding as to where 

we are going. I think I have that understanding with the Attorney 

General, and I have already commented to you about the exchange 

I had with him at his confirmation hearing. 

But I want to come to agreement—I want to know what you are 

understanding is of the law. I do not believe that there are variable 

views of it. I think oversight has been articulated by the Supreme 

Court, and that is the determinative, as between the Department 

of Justice and the executive branch and the Senate. So I am going 

to direct our staffers to talk to you and I am going to want a response in writing, because this is an important question as to my 

vote on your nomination. 

Let me pursue one more question with you, and that is the question of procedures at Guantanamo. The hour is growing late and 

we have a lot of people who have been here for a long time, more 

than an hour and a half at this point. This Committee has prepared legislation on procedures. We have stayed away from the 

issue of interrogation. We have stayed away from the issue of rendition. We have stayed away from matters, except those within the 

purview of the Judiciary Committee, on procedures, representation 

of counsel, determination of status, that sort of thing. And I would 

like you to take a look at the legislation which we have prepared 

and give me your view on it. 

I know that in conversations with the Department of Defense the 

matter has been bucked to the White House. We have talked to 

ranking officials in the White House. I would be interested to know 

your views as to whether you think the Judiciary Committee has 

a role here, and whether it would be useful to have some standards 

set forth. We are trying to be helpful to the Administration. The 

Constitution is explicit in saying that the Congress has the authority to set these rules. But we are very cognizant of the difficulties 

of Congress speaking while the country it at war. But if you take 

a look at that legislation and comment on it, I would appreciate it. 

Mr. FLANIGAN. I will be happy to do that, Mr. Chairman. 

Chairman SPECTER. Thank you. 

Senator Hatch, anything further? 

Senator HATCH. No, Mr. Chairman. I am fully supportive of this 

man. I know him very well. I know he is an honorable, decent, 

hard-working man just like we should have in our Government and 

certainly at the Justice Department, so I fully support him. 

25

Chairman SPECTER. Thank you very much, Senator Hatch. 

And thank you, Mr. Flanigan. 

Mr. FLANIGAN. Thank you. 

[The biographical information of Mr. Flanigan follows.]

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Chairman SPECTER. Thank you all and that concludes our hearing. 

Before closing the record I want to make a request for unanimous consent to include a copy of this letter from me to Judge 

Gonzales dated December 27, 2004 and make it a part of the 

record. That does conclude our hearing. 

[Whereupon, at 5:30 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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