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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39–985 PDF 2008

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 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

(III) 

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 

Page

IV 

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 

(1) 

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.] 

2 

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 

3 

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 proVerDate Aug 31 2005 11:11 Sep 04, 2008 Jkt 039985 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\39985.TXT SJUD1 PsN: CMORC
4 

tecting 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 

5 

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 

6 

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. 

7 

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 reexamine 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. 

8 

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 hairraising 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 hardworking, 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 

9 

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 benVerDate Aug 31 2005 11:11 Sep 04, 2008 Jkt 039985 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\39985.TXT SJUD1 PsN: CMORC
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efit 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 

11 

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. 

100 

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 subVerDate Aug 31 2005 11:11 Sep 04, 2008 Jkt 039985 PO 00000 Frm 00106 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\39985.TXT SJUD1 PsN: CMORC
101 

stantially 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 

102 

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 comVerDate Aug 31 2005 11:11 Sep 04, 2008 Jkt 039985 PO 00000 Frm 00108 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\39985.TXT SJUD1 PsN: CMORC
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plex 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 

Guanta ́namo 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 Guanta ́namo 

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. 

104 

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 Guanta ́namo 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 statVerDate Aug 31 2005 11:11 Sep 04, 2008 Jkt 039985 PO 00000 Frm 00110 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\39985.TXT SJUD1 PsN: CMORC
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ute 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. 

106 

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 peoVerDate Aug 31 2005 11:11 Sep 04, 2008 Jkt 039985 PO 00000 Frm 00112 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\39985.TXT SJUD1 PsN: CMORC
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ple 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 Guanta ́namo 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 

Guanta ́namo not tomorrow, but today.’’ 

Last year, even the President himself recognized that 

Guanta ́namo has been a focus of international criticism, and he 

said, ‘‘I would like to close Guanta ́namo.’’ 

Do you think that we need to close Guanta ́namo Bay prison? And 

if so, will you recommend that to the President? 

Judge MUKASEY. I think there are substantial problems with 

Guanta ́namo, both problems of reality and problems of perception. 

As to reality, it is my understanding that although people are humanely treated at Guanta ́namo, 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 

Guanta ́namo is that, to use a bureaucratic expression, ‘‘nobody 

owns it.’’ The Defense Department runs it. There is obviously an 

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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 Guanta ́namo? 

Judge MUKASEY. I am prepared to recommend to the President 

that we take the responsible course in dealing with the people at 

Guanta ́namo. I cannot simply say we have to close Guanta ́namo 

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 

Guanta ́namo? 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 Guanta ́namo as soon as we can, we have several things that need to be done so that we can close Guanta ́namo, 

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 Guanta ́namo 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 Guanta ́namo 

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.’’ 

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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? 

110 

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 

111 

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 

112 

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 

113 

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. 

114 

[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.’’ 

115 

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 

116 

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. 

117 

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. 

118 

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. 

119 

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 

120 

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. OfVerDate Aug 31 2005 11:11 Sep 04, 2008 Jkt 039985 PO 00000 Frm 00126 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\39985.TXT SJUD1 PsN: CMORC
121 

tentimes, 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 inVerDate Aug 31 2005 11:11 Sep 04, 2008 Jkt 039985 PO 00000 Frm 00127 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\39985.TXT SJUD1 PsN: CMORC
122 

cludes 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 

123 

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 

124 

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 commanderin-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. 

125 

Senator FEINGOLD. Well, my sense is that your speech did not 

seem to take seriously the arguments on the other side. I understand that the PATRIOT Act became a symbol of Government excesses after September 11th and that people often blame the PATRIOT Act for executive branch actions that, you are correct in 

pointing out, sometimes did not have to do with the PATRIOT Act. 

That is a fair statement. But many serious people did have legitimate concerns about some provisions of that legislation, many of 

which have been borne out in a very dramatic way by later events 

and court decisions. 

Your speech really kind of suggested that there were no such legitimate concerns. I would like to know if there were any other 

sources that you relied on to evaluate the arguments of the other 

side other than the statute. You have answered that it was simply 

the language of the statute, but I am wondering if there was anything else to it. 

Judge MUKASEY. It was the language of the statute and the criticisms. I sat and composed that in my home. I did not have access 

to any other material. 

Senator FEINGOLD. I guess, you know, that concerns me because 

I think there is very serious debate on both sides on this issue, and 

these provisions have been proven on a number of occasions, in 

particular with regard to National Security Letters. A really frightful report from the Inspector General, indicating that the failure of 

Congress to nail down the statutory language properly led to enormous abuses, suggests that the concerns that were raised by critics 

were real and had merit. 

On more than one occasion, you have described concerns about 

civil liberties implications of the PATRIOT Act as ‘‘recreational 

hysteria.’’ Despite your very appropriate and respectful approach in 

general, I think that one goes a little beyond respectful disagreement. It reminds me a little bit of Attorney General Ashcroft’s infamous characterization before this Committee of critics as ‘‘chasing 

phantoms of lost liberty.’’ I voted for Attorney General Ashcroft, 

and I agree with Senator Schumer’s remarks that he has proven 

on a number of occasions to have stood up for the rule of law in 

tough situations. But that comment suggests to me a little bit of 

a troubling disregard for the seriousness of this issue. 

Since you first made the comment, three Federal judges have 

struck down provisions of the PATRIOT Act as unconstitutional. 

Are these judges engaging in recreational hysteria? Or do you 

think perhaps a re-evaluation of your criticism might be needed? 

Judge MUKASEY. I certainly do not think that any Federal judge 

of whom I was aware who dealt with any issue under the PATRIOT Act was engaging in recreational hysteria. What I had in 

mind were people who used it as a shorthand for everything that 

terrified them, regardless of whether it was in the statute or not. 

People who, for example, suggested that they would not under any 

circumstance cooperate with any investigation because they objected to the PATRIOT Act, I thought that kind of view was inexcusable. 

Senator FEINGOLD. Fine, and I think there is some validity to 

that. But I would hope you acknowledge the validity of my concern. 

Prior to this moment, have you ever publicly acknowledged that 

126 

not all critics of the PATRIOT Act are engaging in reflexive or recreational hysteria? 

Judge MUKASEY. I believe that I acknowledged it in the very remarks that included that phrase when I said that it may very well 

be that amendments to the statute would be necessary and that 

people ought to participate in an informed debate about it and that 

there may very well be parts of it that are unwise, bad as a matter 

of policy. And I left that possibility wide open, as I do. 

Senator FEINGOLD. Thank you, Judge. 

I would like to finish by asking you questions about the Protect 

America Act, the law that passed at the beginning of August to 

grant the Government vast new wiretapping authority. Are you familiar with the controversy surrounding the Protect America Act? 

Judge MUKASEY. I am familiar with the fact that there is a controversy. I cannot say that I am up on the details of it. But I know 

there is a controversy. 

Senator FEINGOLD. Are you aware of some of the concerns? 

Judge MUKASEY. I am aware of some of the concerns. 

Senator FEINGOLD. If you take over the reins at the Justice Department, are there any particular questions you are going to ask 

about its implementation or any particular concerns you have 

heard that you will want to try to address? 

Judge MUKASEY. Obviously, I am going to need to know what the 

details are of the program, and I am going to need to know what 

actions are protected and how we go about enlisting the aid of private entities in doing this, because Government obviously cannot 

do it alone. Those are the details I am going to need to find out, 

the what and the how. 

Senator FEINGOLD. I have been very concerned about the administration’s attacks on the efforts by the House of Representatives 

to amend that law. I have my own concerns about the House bill, 

but it is, without question, a good-faith effort both to give the administration the authority it needs and also protect the rights of 

Americans. 

As you evaluate the Justice Department’s position in the reauthorization process, will you commit that you will meet directly 

both with critics and supporters of the Protect America Act to understand fully both sides of the debate? 

Judge MUKASEY. I will. 

Senator FEINGOLD. Thank you, Judge. You have been very patient this morning. 

At this point the Committee will stand in recess until 2:30. 

Judge MUKASEY. Thank you very much. 

[Whereupon, at 12:14 p.m., the Committee recessed, to reconvene 

at 2:30 p.m., this same day.] 

AFTER RECESS [2:46 p.m.] 

Chairman LEAHY. I’d welcome everyone back. I apologize. This 

went longer than I had anticipated, although His Holiness the 

Dalai Lama gave a very, very moving speech, I thought the President deserves a great deal of credit for being here with the questions of Tibetan repression versus Tibetan autonomy in his speech. 

Edie Whitsell, the other Nobel Peace laureate on the stand, gave 

a moving speech. But I think that probably Senator Harry Reid 

127 

summed it up best when he said, ‘‘You refer to yourself as an author. I refer to you as a poet.’’ And it really was poetical. 

Senator Brownback, you’ve been waiting very patiently, and I 

yield to you, sir. 

Senator BROWNBACK. Thank you. I was at the ceremony as well, 

and it was quite moving to have two Nobel Peace laureates in the 

room and on the Capitol. It was quite a day. 

Judge Mukasey, I want to go at a couple of topics. The first one 

I want to go to is, I think, the lead issue you’re going to be wrestling with as Attorney General, presuming you’re confirmed, and I 

will believe you will be confirmed. I want to congratulate you in the 

hopes that would take place. 

But I want to look at this particular area of the interaction between intelligence gathering and civil liberties in the United 

States. That’s the issue that this committee has been wrestling for 

some time about, and you’ve gotten different snippets and bites of 

it. 

You’ve been a trial court judge on two of the lead cases, really 

looking at this area, and I think that’s why you’ve been selected 

for this job, is to help us sort through this juncture of our need to 

gather intelligence as a country to protect our society and to protect ourselves, to provide for the common defense, which is the first 

role of the Federal Government, and our need, desire, and requirement that we protect the civil liberties of the people of the United 

States. 

This is a tough issue and it’s a tough moment, particularly with 

the ways and means of communication, the ease of travel today, 

the nature of the world becoming flatter and flatter each day and 

people being able to communicate. So I want to go right into this. 

You’ve continually emphasized the importance of the rule of law 

and you’ve discussed controversial PATRIOT Act provisions. You 

didn’t rely on an expansive theory of the executive branch, as I 

read it, but instead look at the practical impact of each portion of 

the statute. 

In these discussions, you have balanced the national security 

gains from such provisions against any harms to privacy and civil 

liberties. You have also emphasized the rights of individuals to 

seek remedies under it. I want to ask you, for the record here, does 

that remain your viewpoint and does that remain your general 

view of what we need to do as a society and what you need to do 

as the Attorney General today? 

Judge MUKASEY. Yes, it does. 

Senator BROWNBACK. And then going particularly at this, do we 

have your assurances that, if confirmed, you’ll vigorously defend 

the government’s need to gather vital intelligence using laws like 

the PATRIOT Act and the Protect America Act and its successors, 

along with protecting civil liberties of the people of the United 

States? 

Judge MUKASEY. Yes. Absolutely. 

Senator BROWNBACK. On September 26th, a district judge in Oregon struck down two provisions of the PATRIOT Act dealing with 

searches and intelligence gathering. I’m sure you followed the various legal rulings on provisions of intelligence gathering in the PAVerDate Aug 31 2005 11:11 Sep 04, 2008 Jkt 039985 PO 00000 Frm 00133 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\39985.TXT SJUD1 PsN: CMORC
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TRIOT Act. What’s your response to this ruling, and how would 

you deal with it as Attorney General? 

Judge MUKASEY. I’ve not looked at the ruling in detail, but the 

one thing I know about my own rulings as a district judge is that 

they are only as durable as the time it takes to get them to the 

circuit. 

I assume, without knowing, that that decision will be appealed 

to the Ninth Circuit, and if necessary, to the Supreme Court. The 

word of a district judge, although persuasive and obviously dispositive in the case before that judge, is hardly ever the last word on 

any subject. 

Senator BROWNBACK. Are there any particular criticisms of intelligence gathering laws like the PATRIOT Act or others that you 

feel this committee should know about from your viewpoint and 

from your vantage as being a judge on several of these key cases? 

Judge MUKASEY. There are none that come readily to mind. I 

would seize on just two words in the question you asked before 

when you talked about—you mentioned my experience as a district 

judge, and then you mentioned practicality. The experience as a 

district judge teaches me that the abstract is a very bad place to 

decide questions like this. 

Concrete situations present themselves that confound a lot of 

theories, and the best policy is to be guided by general principles, 

but to wait for a situation that presents itself before deciding on 

a hard-and-fast position as between one and the other, because reality has a way of undoing a lot of theories. 

Senator BROWNBACK. But to give us a view here, and to give the 

American people a view of your advice and counsel that you’ll give 

to the President of the United States, I can’t give you hypothetical 

cases. There would be a hundred that could easily come to mind, 

actually, but that wouldn’t be fair, nor would you answer it, nor 

should you answer it. 

But is there anything in what I read here, or otherwise, that 

would illuminate for us your thinking when you balance these 

issues of security needs of the American people and civil liberty requirements under our Constitution? 

Judge MUKASEY. I think we need to have a very clear-eyed idea 

of what it is we’re protecting when we talk about protecting civil 

liberties, as well as to recognize the need to gather intelligence. 

The rights of free speech are, thank heaven, very much intact in 

this country. Some people are concerned that intelligence gathering 

interferes with their rights of privacy. 

I think it’s important for people to understand, as a general matter, what it is the Government does in gathering intelligence, not 

in detail, obviously, but that it is very much like what law enforcement does in gathering—in conducting investigations in the line 

run of cases. Very often, we’re not talking about anything that is 

different in kind from what is done in conducting investigations 

generally. 

Senator BROWNBACK. Just basically extending in the intelligence 

gathering operation the same both requirements and protections as 

we do presently under criminal law investigations. 

Judge MUKASEY. Correct. 

129 

Senator BROWNBACK. And I’ve seen you write on that in some of 

your pieces. It’s basically extending that same set of logic and requirements there into the intelligence gathering. 

Judge MUKASEY. Correct. 

Senator BROWNBACK. And that would be a basic mind-set you 

would bring to this field and area? 

Judge MUKASEY. It is a basic mind-set that I do bring to it. 

Senator BROWNBACK. I want to take you to the blind sheik trial 

of 1999, the World Trade Center bombing and related terrorism 

plots. The lead co-defendant, Abdul Rahman, sought to introduce 

expert testimony to show that his actions were governed by Islamic 

law. You properly, I believe, excluded the testimony on Islamic law 

as irrelevant to the criminal charges and potentially confusing to 

the jury. 

As the Second Circuit explained in affirming your ruling, it 

would not constitute a defense that Abdul Rahman was justified 

within the framework of Islamic law. Do you remember this piece 

of that case? 

Judge MUKASEY. I do. And the point of the ruling was that the 

issue before the jury was not what Islamic law provided or didn’t, 

but rather what was in his mind when he made statements that 

were proved at trial to his followers about what they should do, 

and what was appropriate for them to do, and that his obligations 

under Islamic law were totally irrelevant to that. The issue wasn’t 

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

Senator BROWNBACK. And that’s the issue that I want to get at, 

if we can. It may be a difficult thing to discuss or get at. But certain countries’ courts have held that Sharia, Islamic religious law, 

trumps civil constitution. There’s been a case in Malaysia. There 

was a case earlier this year in Germany where a Frankfort presiding judge over a divorce court involving two Muslim Moroccan 

residents in Germany put aside German divorce law and ruled instead on the basis of her understanding of the Koran. The case 

aroused considerable controversy, and in June the Justice Ministry 

in the German state that she resided in—the judge did—decided 

against disciplining the judge. 

What would be your thoughts on this were this to arise in the 

United States, in a court of law in the United States? 

Judge MUKASEY. I think we should not create anywhere in this 

country enclaves that are governed by any law other than the law 

that applies to everybody. We live in this country under one system 

of laws. Whatever may be the religious requirements of any group, 

we don’t create enclaves where a different law applies, different 

law governs, and people don’t have the rights that everybody else 

has outside that enclave. I would resist that very firmly, the creation of any such enclave. 

Senator BROWNBACK. Good. I think that’s the right way to look 

at it. It’s troubling to a number of people, and it’s troubling to me 

that you see these sorts of thoughts starting to come forward, and 

in western countries, that they move forward. The Constitution is 

the law of the land and it governs all of us, and the laws that proceed out of it that are built here. 

Senator Hatch brought up some of the cases on pornography that 

I spoke with you in private about, and I’m pleased to see your inVerDate Aug 31 2005 11:11 Sep 04, 2008 Jkt 039985 PO 00000 Frm 00135 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\39985.TXT SJUD1 PsN: CMORC
130 

terest and willingness to deal with some of that because it is an 

important issue that’s affecting our overall society. In the time I 

have left, there’s one other issue that will come up—and you’ll have 

a number of issues—on prison recidivism and reform that I just 

want to put out in front of you. 

A number of us are working on a bill that we worked with your 

predecessor on called the Second Chance Act to address prison recidivism in the United States. We’ve got a system in the U.S. 

where, once you go to jail, two-thirds of the time you’re going back. 

It’s just been a high-cost, revolving door, very costly system. 

What we’ve put forward on a bipartisan basis is a series of funding. It is to fund efforts that will cut recidivism rates in half over 

5 years of groups that work within the proposal. Some of them are 

faith-based, some are not. A lot of it is mentoring programs. A lot 

of it is relationship building for when the prisoner gets out. 

I want to ask your attention to that, and hopefully your support 

of this effort, because I think it’s one of the key things that we 

need to deal with on trying to cut down the number of people in 

prisons, given the crowded situation that we have today. 

Judge MUKASEY. I certainly agree. I think we need to stop the 

system where our prisons are essentially an institution of higher 

learning for criminality and where recruitment to criminality goes 

on. That’s not something we can afford because these people, after 

they go in, are going to come out some day. When they come out, 

we want them to come out as productive citizens. 

I know that it’s hard to generate popular support for prison programs. It’s often seen as kind of the last priority. But we need to 

face the fact that those people need to come out in a productive 

way, and in order for them to do that they’re going to need some 

kind of support in the institution to make sure that that happens. 

Senator BROWNBACK. Thank you, Judge. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

Senator Schumer, you’re recognized for 12 minutes. 

Senator SCHUMER. Thank you, Mr. Chairman. 

Thank you, Judge Mukasey. I thought I’d just share with the 

panel and the audience, during the break Judge Mukasey told me 

that he was enjoying the debate. He said it was a good back-andforth on questions and answers and the kind of discussions—he 

didn’t say this—but I imagine you might even have at law school. 

I know he was a professor there. I told him that’s great, and I 

think it speaks well of him. 

That’s what many of us felt was so sorely lacking at the Justice 

Department for so many years, and hopefully there will be lots of 

honest debate and discussion with the Congress as we move forward. 

My first question is about judicial independence. As you know, 

Jack Goldsmith, former head of the Office of Legal Counsel, wrote 

a book, this book, called ‘‘The Terror Presidency’’. I know you’re familiar with it because we talked about it during our discussions. 

It details some of the pressures brought to bear on Jack Goldsmith 

by figures in the administration who wanted him to justify what 

he thought wasn’t right. 

What did you think of this book, Judge Mukasey? 

131 

Judge MUKASEY. I thought it was superb. Talk about, couldn’t 

put it down. I was, in a way, sorry when I finished it. 

Senator SCHUMER. Well, let’s hope he doesn’t have to write another one, or you don’t have to write one like this. 

Judge MUKASEY. I don’t have a book in me. 

[Laughter.] 

Senator SCHUMER. OK. Thanks. 

Chairman LEAHY. You may after these hearings. 

[Laughter.] 

Senator SCHUMER. He’s having a good time, Mr. Chairman. Or 

not a bad time, anyway. 

Goldsmith repeatedly points out that the administration missed 

opportunities to put its terrorism policies on sound legal footing 

simply by going to Congress. In Hamdan, for example, the Supreme Court chastised the administration for not going to Congress, saying the administration could not proceed with military 

commissions without Congress’s explicit approval. 

He describes one meeting where now-Solicitor General Paul 

Clement warned that the Supreme Court might not accept the administration’s arguments in support of its detention programs. 

On page 124, Goldsmith reportedly says, ‘‘ ‘Why don’t we just go 

to Congress and get it to sign off on the whole detention program?’ 

Others supported this approach, but David Addington, Vice President Cheney’s Chief of Staff, asked, ‘Why are you trying to give 

away the President’s power?’ ’’ So they didn’t go to Congress. 

Now, do you agree that working with the Congress in the long 

run actually enhances the President’s power, increases public confidence, and protects policies from being rejected by the court? 

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

Senator SCHUMER. OK. 

And do you commit to working with Congress before moving forward with any proposal like national security courts? 

Judge MUKASEY. We can’t move forward with national security 

courts unless and until we work with Congress. The Constitution 

says that it’s Congress’s power, not anybody else’s, to constitute— 

as it says ‘‘such inferior courts as Congress may from time to time 

create.’’ 

Senator SCHUMER. Right. OK. 

How about with respect to any new surveillance tools that you 

believe are needed that are outside of FISA rather than stretch or 

ignore FISA? 

Judge MUKASEY. I’m not in favor, generally, of stretching or ignoring. On the other hand, I don’t know what tools are going to 

come to hand or to mind in the future. 

Senator SCHUMER. I’m not asking the specifics. I’m just asking, 

if it’s your opinion that the law ignores FISA or stretches it in a 

somewhat contorted way, would you suggest going to Congress? 

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

President to do that. 

Senator SCHUMER. Thank you. 

Jack Goldsmith also writes, ‘‘It was said hundreds of times in the 

White House that the President and Vice President wanted to leave 

the Presidency stronger than they found it. In fact, at least in my 

132 

opinion, they seemed to have achieved the opposite. They borrowed 

against the power of future Presidencies, Presidencies that, at least 

until the next attack and probably even the following one, will be 

viewed by Congress and the courts, whose assistance they need, 

with a harmful suspicion and mistrust because of the unnecessary 

unilateralism of the Bush years.’’ 

The last Attorney General, by all accounts, was not much more 

than a potted plant or a rubber stamp behind closed doors when 

the subject turned to working with Congress. I want to know what 

attitude and approach you will bring to those discussions. Do you 

agree that unilateralism is a bad idea? 

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

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

Senator SCHUMER. When you’re in the room, the room that Goldsmith was in, will you go along with a unilateral approach? 

Judge MUKASEY. I will do what I think the Constitution and the 

laws mandate. If the subject under discussion involves an authority 

that I think actually inheres on the President, and for all my endorsement of bilateralism and for all my belief that it strengthens 

the hand of the President, there are some authorities that inhere 

in him, just as there are some authorities that inhere in this body. 

But if we’re talking about something that is a subject on which 

he should get the concurrence of this body, or even a marginal subject, I will try to have a bias in favor of getting the concurrence 

of this body because it makes everybody stronger, whether— 

Senator SCHUMER. Thank you. I think Goldsmith would agree 

with that. I think many of us on both sides of the aisle on this committee would agree with it, and I think it’s a refreshing change. 

Now, Goldsmith also writes that some of the OLC opinions he 

read when he came into office were ‘‘deeply flawed and sloppily reasoned’’. That’s Goldsmith’s view, obviously. You assured me yesterday, and I just want to get this on the record, that you would undertake a review of existing OLC opinions, if you’re confirmed, on 

various issues. So just confirm to me that you will do such a review 

on the terrorist surveillance program. 

Judge MUKASEY. I will. 

Senator SCHUMER. Detention policies. 

Judge MUKASEY. Yes. 

Senator SCHUMER. And torture policies. 

Judge MUKASEY. Yes. 

Senator SCHUMER. Thank you. 

Judge MUKASEY. Well, torture—I wouldn’t characterize them as 

‘‘torture policies’’. But from what you’re telling me, is a policy on 

doing something unlawful. I don’t know of any such policy, and 

candidly, I hope not to find one. 

Senator SCHUMER. OK. That’s fair enough. 

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

Judge MUKASEY. I will raise it with the people who originated it 

at first. As I said, my learning curve has been pretty steep, and it’s 

ongoing. 

Senator SCHUMER. I understand. But let’s say your view is that 

it doesn’t have the legal justification asserted in the opinion. 

133 

Judge MUKASEY. If my view, after consideration, with those people and with other people that I think I have to talk to is that it 

has to change, then it will change. 

Senator SCHUMER. Right. 

And will you do so publicly and inform the Congress? 

Judge MUKASEY. I have to be very, very careful about what I do 

publicly—what I undertake to do publicly and when I don’t. I don’t 

know the subject of all those decisions and I need to consider them 

and that subject before I make a categorical promise to come out 

and announce that I’m changing a policy. 

Senator SCHUMER. If it’s not going to create any adverse interest, 

if possible, will you do it publicly so we’re all stronger? 

Judge MUKASEY. I think it’s important that government explain 

itself to its citizens and to the Congress. That’s what I think, and 

that’s what I’m going to continue to think. 

Senator SCHUMER. Right. OK. 

Next, I’d like to move on, talking about independence. I take it 

you knew Jim Comey when he was the U.S. Attorney in the Southern District. What did you think of his commitment to legal and 

ethical excellence? 

Judge MUKASEY. I thought it was admirable and complete. 

Senator SCHUMER. As I mentioned in my introductory remarks, 

Comey gave an extraordinary speech to the National Security 

Agency on May 20, 2005. He talked about the difficulty of doing 

what is right as a government lawyer. He talked about the difficulty of saying ‘‘no’’. 

So, Judge Mukasey, here’s my question again publicly, the one 

I asked you privately yesterday: will you have the courage to look 

squarely in the eyes of the President of the United States and tell 

him ‘‘no’’ if that is your best moral and legal judgment? 

Judge MUKASEY. Yes. 

Senator SCHUMER. And even when people are suggesting, as apparently David Addington has before, that ‘‘blood will be on your 

hands’’ ? 

Judge MUKASEY. Yes. 

Senator SCHUMER. In the future, if your Office of Legal Counsel 

is unable to find a legal basis for a counterterrorism program, you 

agree with the conclusion, and the White House insists on proceeding with it nonetheless—we’ve had this instance, as you 

know—what will you do? 

Judge MUKASEY. That presents what I guess I can describe as a 

difficult, but not a complex, problem. I will either talk them out of 

it or I will push away from the table and leave. 

Senator SCHUMER. Thank you. OK. 

This is executive privilege. I have limited time left, so I’m going 

to be quick here and not go through it all because we talked a little 

bit about this yesterday. This is one area where I think we had 

some disagreement. 

As you know, many of us felt that the administration was going 

much too far in asserting executive privilege, particularly in the 

U.S. Attorneys’ investigation. One area where I thought they particularly stretched it was in a claim of executive privilege when a 

third party, say the chairman of the New Mexico Republican 

134 

Party—that was one specific instance we had—reached out to 

somebody within the administration. 

I’ve never heard of executive privilege being used in that regard. 

The rationale of executive privilege is to allow unimpeded conversations within the White House, or even within an executive branch, 

to go on without the fear that they might be made public. I’ve 

never heard that where there’s a third party, where there’s always 

a fear it might be made public by the third party who had the discussion and is not under executive privilege. 

What’s your view of this? Have you had a chance to think it over 

overnight? 

Judge MUKASEY. I looked at the letter quickly, and I’ve thought 

about it a bit. I don’t know the facts relating to, what was it, the 

chairman of the New Mexico Republican Party? 

Senator SCHUMER. Yes. 

Judge MUKASEY. I don’t know who called whom, and why. Obviously, within the executive there has to be the ability to gather 

facts, both from within the executive and from the outside. I suppose I can envision circumstances in which, because of the need to 

gather facts, there may be some question of privilege. Again, I don’t 

know what the situation was with respect to the chairman of the 

New Mexico Republican Party. I will admit to you that my first reaction to that section of the letter was: ‘‘Huh?’’ But I’d like to take 

a closer look at the facts before that’s my only reaction. 

Senator SCHUMER. Just keep ‘‘huh-ing’’ on that. 

Judge MUKASEY. OK. 

Senator SCHUMER. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

To follow on what Senator Schumer was saying about the question of torture and what you will find, if you find something that 

you think is inappropriate, whether you’d change it, trust me, if 

you’re confirmed, you’re going to get an opportunity to discuss this 

with us further. 

We will be having another hearing after the first of the year, and 

by then you will have had a chance to see all these things. I suspect you will find folks on both sides that will be asking. But in 

the meantime, as I’ve suggested to you before on these things, you 

should never hesitate. If you want to bounce ideas off of Senator 

Specter or myself, on behalf of the committee, please do so—an 

offer we made to your predecessor, and he never took us up on it. 

Senator Cornyn? 

Senator CORNYN. Judge Mukasey, as I told you when we met privately, I was not familiar with your name or your reputation until 

I first saw that Senator Schumer had suggested you might possibly 

be a good nominee to the U.S. Supreme Court by President Bush. 

But I have to tell you, since I’ve become better acquainted with 

your record of public service and your professionalism, I’ve grown 

in admiration of your fine record. I congratulate you on this nomination. 

Judge MUKASEY. Thank you. 

Senator SCHUMER. Oh ye of little faith. 

[Laughter.] 

Senator CORNYN. I have to tell you, I was also profoundly struck 

when you started your comments this morning and said ‘‘it’s not 

135 

about me’’. What a refreshing point of view here in Washington, 

DC. I do believe you when you say that, and you believe it’s about 

serving your country. I respect that. 

I want to just tell you, as I was reading through some of the 

things you have written, as a member of what we call in the Congress ‘‘the recovering judge caucus’’—we have a small group of 

former judges who now serve in Congress—I admired your choice 

of Learned Hand in one of the articles that you wrote about the 

Spirit of Liberty and his famous comments in that speech, that ‘‘the 

spirit, which is not too sure that it’s right,’’ is one that we ought 

to emulate. 

You were talking in this article about the PATRIOT Act, a statute which you said critics ought to read before attacking it. You 

noted that it had become the focus of a good deal of hysteria, some 

of it reflexive, and much of it, you said, recreational. 

I was reminded once again that your experience in the court of 

law, my experience, and those of us who practiced in a court of law, 

the standard for proof in a court of law is substantially more rigorous than it is in the court of public opinion. This is particularly 

true in hearings before Congress; even though witnesses take the 

oath, things are said that probably wouldn’t be admitted in evidence in a court of law. 

But the one thing that I wanted to ask you about is that you 

point out that the PATRIOT Act broke down the wall between intelligence gathering and law enforcement. You also said that the 

previous decision establishing that wall preventing the sharing of 

information had been a stark misreading of the law. 

Why do you believe that there’s been an apparent inability to 

communicate to the American people in widely acceptable terms 

the difference between a criminal law paradigm and fighting a war 

on terror and dealing with a military paradigm? 

Judge MUKASEY. I can’t say, as I sit here, that I know why 

there’s been a failure to communicate that. I think that it is very 

important for government generally to make the case to its citizens 

for what it does, not just to do things that promote their welfare, 

but make the case. I’m a lawyer, and so I’m the sort of person 

who’s trained to make the case. I would like, if I’m confirmed, the 

opportunity to go out and do that. 

And I don’t mean I’m just going to go off on some speechifying 

tour, but it’s one of the things that I take very seriously, and that 

is the need to make the case for the importance of what we do, and 

for the fact that we do it within the law. We don’t just do it willy 

nilly, we do it with due regard for the real interests that are at 

stake. 

Senator CORNYN. And of course, in a criminal law context you’re 

always punishing an act after it occurred. Obviously the goal of our 

intelligence gathering and fighting a war is to prevent terrorist attacks from occurring. 

But there’s one other example I wanted to ask you about. In your 

experience in trying the 1993 World Trade Center bombing case, 

did it occur that a list of some 200 unindicted co-conspirators was 

turned over to the defense— 

Judge MUKASEY. Yes. 

136 

Senator CORNYN.—and ultimately found its way into the hands 

of—well, it found its way to Sudan, I believe, in the hands of others 

who subscribe to the same views on jihadism that the defendants 

in that case did. Is that maybe another example why the criminal 

law paradigm is not always the best approach? 

Judge MUKASEY. The law of unintended consequences operates 

there, as it does in a lot of other places. That list had to be served 

under the law, and it showed up, we found out, long afterwards, 

in Khartoum in the hands of Osama bin Laden, who happened to 

have been on that list, and it told him who was on that list, that 

he was included, and who we knew about who was working with 

him. 

Senator CORNYN. Let me pivot quickly here, since time is short, 

to the reporter’s shield law that’s been proposed to Congress. There 

are a lot of things that the members of this committee agree on. 

The Chairman and I have been working closely together on reform 

of the Freedom of Information laws for the first time in a generation, and I trust we’ll be working with the Department of Justice 

on that when you’re confirmed. But the shield law that’s been proposed has a provision that provides a qualified privilege to covered 

persons. 

What I expressed a concern about, and Senator Durbin and Senator Feinstein also voiced some concerns—I’ll let them speak for 

themselves—is that the definition is so broad that it would cover 

virtually anyone who decides to publish information. 

For example, consider the young jihad enthusiast who uses the 

Internet to spread Osama bin Laden’s message. A blogger posts an 

English translation of a scholarly treatise advocating violent jihad 

and lists hundreds of links to secret websites where his readers can 

obtain the latest insurgent videos from Iraq. 

As you may know, Judge, this is not a hypothetical situation. 

This is the case of a 21-year-old American who writes his blog from 

his parents’ home in North Carolina. The New York Times reported 

this story on Monday in an article entitled ‘‘An Internet Jihad 

Aims at U.S. Viewers’’. 

My concern is that if we pass a reporter’s shield law, which I 

voted for out of the committee, but with the caveat that I’m concerned about the breadth of that definition, Congress will be providing a qualified privilege to anyone who holds themselves out as 

a journalist. Do you have concerns about the breadth of that definition as well and how it would actually impact your ability to do 

your job? 

Judge MUKASEY. That is one, but only one, of my concerns. 

Senator CORNYN. And would you care to share with us your other 

concerns? 

Judge MUKASEY. Sure. Even if you narrow the definition to include people who are reporters for a living, I can recall, when I was 

a college journalist of sorts, meeting a TASS reporter, a reporter 

for the then-Soviet news agency, TASS. It was very clear at the 

time that many, or most, TASS reporters were in fact KGB agents 

who were working full-time as reporters, but indeed were doing a 

lot of other things. I can’t help but believe that the same is true 

of many reporters for Shinhwa. 

137 

I don’t know that for a fact, it’s just a belief based on my own 

experience. It would not be above the capability of someone involved in a terrorist organization to become a journalist or to have 

a whole superstructure erected around her or him that allowed 

them to present themselves as a journalist, somebody earning a 

full-time living as a journalist, and still be someone who would be 

protected by the law. So, that’s one concern. 

Another concern has to do with the kind of proof that has to be 

presented in order to overcome the shield law, proof of danger to 

the country, which sometimes is an imponderable, hard to prove in 

advance. The example of that list of unindicted co-conspirators is 

only one example, but it’s a good one. Nobody could have proved 

in advance that turning that over was going to be dangerous, but 

you can prove it in retrospect. I don’t want to have to look at retrospect, so I’m uneasy about that, too. 

Senator CORNYN. You are no doubt familiar with ‘‘Project Exile.’’ 

The program is focused on gun crimes and prosecuting gun crimes 

under the Federal laws, with mandatory minimums for felons and 

others carrying guns illegally, going after the gun crime as a discrete offense, and punishing that in addition to whatever other 

crimes are being committed. 

That Federal program gave rise to something in my State, when 

I was Attorney General, we called ‘‘Texas Exile’’, which was a very 

successful collaboration between Federal, State, and local law enforcement officials to persuade criminals to leave their guns at 

home by letting them know that there would be a significant and 

meaningful punishment—meaning imprisonment—if they used a 

gun in the commission of a crime. 

I wanted to commend to you the Project Safe Neighborhoods follow-on, which is now a substantial program within the Department 

of Justice, and ask for your support, or at least your willingness to 

work with Congress to try to make sure that we continue to prosecute gun crimes vigorously, and thereby, I believe, reduce a lot of 

the violence associated with gang activities, drug transactions, and 

hopefully in the process save some lives. 

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

Judge MUKASEY. I sure will. 

Senator CORNYN. Thank you. 

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

There is sort of an anomaly. This came to light in the case of the 

prosecution of two Border Patrol agents who shot a drug dealer 

along the border in my State in Texas, and because they discharged a firearm in the course of the activities for which they 

were convicted, they received an automatic minimum 10-year plusup to their prison sentence. I’m not sure. 

I know there was some conversation about this when Congress 

passed these laws, how they would apply to a law enforcement officer who has no discretion but to carry a firearm in the course of 

their duties, and how it might disproportionately impact that law 

enforcement officer. 

I’d just ask here today, simply, whether you would agree to work 

with us, the Judiciary Committee, to look at that statute to see 

whether we ought to revisit it, and whether it does unfairly impact 

138 

law enforcement officials who do have to carry, and sometimes discharge, their firearms in the course of their lawful duties. 

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

Senator CORNYN. Thank you very much. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Just so we’ll know what the list is, on this side 

we have Senator Durbin, Senator Whitehouse, Senator Cardin. On 

the Republican side we have Senators Graham, Sessions, and Kyl. 

We will alternate back and forth. It would be my intention at the 

end of that, a number of people have suggested second rounds. We 

will not begin those today. When the last person has asked their 

questions, then we will recess over until tomorrow. I will consult 

with Senator Specter on a time that that will begin, but we will 

also make sure, of course, that we let you know. 

Senator Durbin? 

Senator DURBIN. Judge Mukasey, thank you for being here. 

Thanks for your service on the court and your willingness to have 

your name submitted for the Attorney General’s position. Thanks 

to your family and friends, some of whom have been friends of 

mine for a period of time. I’m glad that they’re with you today. 

Several weeks ago, you were kind enough to come by my office. 

We had a short time to have a conversation. You referred several 

times here to your learning curve in this process, and so the questions I’m about to ask may be attributable—your earlier responses 

may be attributable to learning curves, but I want to clarify and 

make sure I understand where you stand on several things we discussed in my office. 

One of the things which we talked a lot about was this issue of 

torture. You said at one point, ‘‘There’s a whole lot between pretty 

please and torture,’’ and you suggested that coercive techniques 

short of torture were effective. I would like to ask you so that it’s 

clear in my mind, will you now acknowledge that it is illegal and 

inconsistent with our values as a Nation to subject detainees to 

cruel, inhuman, and degrading treatment? 

Judge MUKASEY. It is unlawful to subject detainees to cruel, inhuman, and degrading treatment, there is no doubt. I don’t think 

that’s inconsistent with what I said. 

Senator DURBIN. And we talked about the McCain statute, which 

I co-sponsored and had a 90–9 vote in the Senate. I asked you 

about whether the McCain statute on torture would be controlling 

in certain circumstances, and you said at one point, there could be 

a point where the President’s constitutional authority would override this statute. I would like some clarification on that, if you 

would, please. 

Judge MUKASEY. OK. I don’t recall the context in which I said 

that the President’s authority could override a statute. I would be 

very surprised if that context were the McCain statute. There is 

some authority that the President has that is inherent in the President and that he has willy nilly. 

There have been statutes that Congress has passed that every 

President, since the time they were passed, has taken the view are 

unconstitutional in that they encroach on the President’s power, 

the President’s authority. The most notable one—at least to me the 

one that comes to mind—is the war powers resolution. We all know 

139 

that it’s there. We all know that every President, since the time it 

was passed, has taken the view that it is unconstitutional and will 

not be obeyed. 

Mercifully, we have never come to a test of that, and I hope we 

will never come to a test of that. What’s happened is, each branch 

has understood that push can’t come to shove on certain issues, 

that we have to try to work it out the way people work things out 

in a democratic society, such that not everybody gets everything 

they want, and sometimes both sides walk away saying, ‘‘Could 

have beat them.’’ But we don’t have to find out who could have 

beaten whom. 

Senator DURBIN. For the record, do you believe the McCain torture amendment or statute is an unconstitutional infringement on 

the power of the President? 

Judge MUKASEY. I do not. 

Senator DURBIN. I also asked you about Guanta ́namo. You referred to it with a colorful phrase. You referred to it as a ‘‘fright 

wig’’ used by critics of the administration, and defended 

Guanta ́namo on the grounds that detainees receive ‘‘three hots and 

a cot, health care better than many Americans, and taxpayer-funded Korans’’. That’s what you said when we met. What I heard in 

response to your questions from Senator Kohl, is that that may not 

accurately characterize your feelings about Guanta ́namo. 

Judge MUKASEY. My feelings about Guanta ́namo, a place which 

I have not visited—I have not visited it, but I have spoken to people who have, is—my feeling is pretty much what I told you in a 

rather pungent, conversational way. I don’t think people are mistreated there. That is not to say that the problem of indefinite detention of a large number of people has not become a problem for 

us. It is a problem for us. It’s an ongoing problem. We’ve got to get 

our hands around it and resolve it, and it’s due, as I indicated before, in large measure to the fact that getting ownership of that 

problem is a difficult thing in government. I recognize that. 

Senator DURBIN. I suppose this treatment is a matter of interpretation. If one is speaking of torture of the Guanta ́namo detainees, 

that is one category of mistreatment, for sure. Detention without 

due process may be another category of mistreatment that Senator 

Specter has addressed, along with Senator Leahy, on the issue of 

habeas corpus. Would you concede that holding these detainees 

without charges for years, and then in many cases releasing them 

without charges, is a form of mistreatment? 

Judge MUKASEY. What one regards conversationally as mistreatment or not, I think, is probably in the eye of the beholder. Under 

Hamdi, it is lawful. Hamdi said, as far as I know, unequivocally, 

that it is lawful for the President to detain people, even Americans, 

captured on a field of battle indefinitely. 

That’s not to say that, as a matter of policy, it’s a wise thing to 

do, that it doesn’t hurt us with allies on whom we rely for support 

in fighting the people we have to fight, and that it might not pay 

to carry forward a principle for the sake of carrying forward a principle when we wind up cutting our nose off to spite our face. 

Senator DURBIN. I won’t go any further, because I think your responses to Senator Kohl’s questions were very clear. I think that’s 

a matter of record, your position on Guanta ́namo. 

140 

I’d like to ask you about the Office of Legal Counsel in the Department of Justice, currently being held by an interim appointment, Mr. Bradbury, who has been brought before this committee 

and pending before the Senate for some time now. I have a hold 

on his nomination because of his refusal to answer questions, to 

produce memos, even some most recently disclosed by the New 

York Times involving some things that he’s said or done in that capacity. 

I would like to ask you, and I might also add one area that you’re 

probably aware of, the Office of Professional Responsibility initiated an investigation into the Justice Department’s offices relative 

to the NSA program. In an unprecedented move, President Bush 

personally denied security clearances to Justice Department investigators and blocked the investigation. Documents provided to the 

Senate Judiciary Committee suggest that the internal investigation 

was looking into whether that office, under Mr. Bradbury, engaged 

in misconduct while he was the acting head. 

I’ve sent a letter with Senators Kennedy and Feingold asking the 

President to allow the investigation to go forward, and yesterday 

sent another letter saying it’s time to remove this interim appointment because this man is going nowhere unless there’s much more 

complete disclosure. 

Do you agree that it would be inappropriate for the Senate to 

confirm a Justice Department nominee who’s under investigation 

by the Office of Professional Responsibility? 

Judge MUKASEY. I don’t know the investigation. I have not heard 

of the investigation by OPR to which you refer. I know there was 

an OIG investigation. I know of an OIG investigation with regard 

to national security letters and the conclusions that it drew. I was 

unaware of an OPR investigation. 

Senator DURBIN. I don’t want to catch you by surprise then. I’ll 

send a followup set of questions to you, and one of them will be 

specifically, if you’re confirmed, will you recommend to the President that the OPR investigation of the Justice Department’s role 

in the NSA program be allowed to proceed? 

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

Senator DURBIN. I understand that. 

Judge MUKASEY. I am aware, from my own experience, of how 

relatively easy it is to have an OPR investigation get under way 

because of some comment in an opinion or something of that sort. 

Senator DURBIN. Let me send you that in writing and allow you 

to reflect on it and take a look at it before you give a complete response, out of fairness. 

I have very few minutes, and I wish I had much more time for 

this particular question. As the chief law enforcement officer in our 

Nation as Attorney General, you will have special responsibilities. 

One that continues to recur throughout your lifetime and mine, 

and even as recently as the last week or two, is the issue of race 

and justice in America. Clearly, we still have a major hurdle to 

overcome in establishing equality under the law. 

I’d like to ask you, if you were prepared, what initiative would 

you take to try to bring some closure to this issue which continues 

to tear America apart? 

141 

Judge MUKASEY. I can’t, unless I indulge in a conceit that I don’t 

really have, entertain the view that we’re going to achieve closure 

in my lifetime, or even in my tenure. I believe that the Civil Rights 

Division of the Justice Department—I was trying to say this to 

Senator Feinstein when our time ran out, and I’m glad you asked 

about it because now I get the chance to continue. 

The Civil Rights Division is part of a movement and a process 

that is nothing less than genius in our politics, and that is that is 

that a stain on our history can start to be lightened, and hopefully 

at some point wiped out through the use of the law rather than in 

the streets and with arms, as it has been elsewhere. We have to 

make sure that bit of genius is preserved. 

I would make absolutely certain, and will make absolutely certain, that the Civil Rights Division, which celebrated its 50th anniversary this year, that people there understand that that’s the 

mandate and that they don’t forget it. 

Senator DURBIN. I might say that that is one division which 

many of us believe has very low morale at this point, for a variety 

of reasons. I share your feeling about the important mission that 

we have, and I certainly hope that you will dedicate yourself to restoring morale and giving them the tools and support they need to 

restore their reputation. 

Judge MUKASEY. Let me say just one thing. In the course of preparation for these hearings, I was staying near the Justice Department and happened to run into, on a couple of different days, lawyers from the Civil Rights Division lining up to get their coffee as 

I was lining up to get mine. And they were energized, they were 

focused. They seemed to be very happy and pleased in their task, 

and I think they are very much characteristic of the people within 

that division, the people within the Department, and those are the 

people who I think we’re going to depend on. 

Senator DURBIN. Perhaps it’s a hopeful view on their part of your 

nomination. Thank you very much. 

Chairman LEAHY. Thank you, Senator Durbin. 

Senator Graham? 

Senator GRAHAM. Thank you, Mr. Chairman. 

Judge, I am sure you’re going to make a fine Attorney General, 

and this is just the price you have to pay to talk to all of us. But 

I think it will be worth it, for you and the country at large. 

But you’ve had a lot of good questions on both sides of the aisle 

here about the role of the Congress, the courts, and the executive 

branch when we’re at war. And I guess the first question I would 

like to ask you, since you’re a New Yorker, do you consider the attacks of 9/11 a criminal act or an act of war? And you’ve got to pick 

between the two. 

Judge MUKASEY. If I’ve got to pick between the two, they’re an 

act of war. 

Senator GRAHAM. Well, I agree with you, so you’re in good standing with me already. See, I think we’re at war. I think the law that 

one would apply, if you looked at this as a war, would be different 

than domestic criminal law. I’ve been a military lawyer for 25 

years and I’m very proud of our military legal system. Because you 

apply the law of armed conflict doesn’t mean you don’t have due 

process. 

142 

Now, when it comes to detention and interrogation of unlawful 

enemy combatants, here’s some of the laws that I have made a list 

of that apply to the situation about how we detain and interrogate 

someone that we believe to be an unlawful enemy combatant. The 

Supreme Court, in the Hamdan case, said the Geneva Convention 

applies. Do you agree with that? That is now the law. I don’t agree 

with the court’s holding, but that’s what they said. 

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

Senator GRAHAM. Judge, they said that Common Article 3 applied to the war on terror. Now, I disagree with that, but that is 

the law as I understand it. That Common Article 3 now applies to 

the war on terror. 

Judge MUKASEY. If that’s their reading on something other than 

a procedural basis— 

Senator GRAHAM. I think that’s their—to go back. If you disagree 

with me you can tell me in writing, but I believe it does. Even 

though I wouldn’t have decided it that way, that’s the court. 

The Uniform Code of Military Justice is a congressional statute 

that regulates the conduct of the military vis-a-vis many things, 

but including how one treats a detainee. Are you familiar with 

that? 

Judge MUKASEY. I know of that. Yes. 

Senator GRAHAM. Do you think that’s a lawful thing for Congress 

to do, to replace restrictions on our military when it comes to how 

they will treat somebody in their capture? 

Judge MUKASEY. On our military? 

Senator GRAHAM. Yes. 

Judge MUKASEY. Yes. 

Senator GRAHAM. It’s a crime—OK. Good. So for the soldiers who 

may be watching this hearing, the Uniform Code of Military Justice regulates your conduct regarding someone that you may find 

or capture on the battlefield, and I think you’re taught what to do 

there. I just wanted to acknowledge it, and that is a power that 

Congress has and we’re going to have to live within that. 

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

enactment. Do you agree that that’s a valid legal document? 

Judge MUKASEY. Yes. 

Senator GRAHAM. OK. 

The Detainee Treatment Act is an enactment by Congress that 

regulates—I think you’ve talked about it pretty well—what we can 

and can’t do to someone we capture, cruel, inhumane, and degrading treatment. Do you consider that a valid source of law? 

Judge MUKASEY. Yes. 

Senator GRAHAM. OK. 

We have many international treaties that regulate our conduct 

because we’re signatories to those treaties. Do you think it’s incumbent upon us to live up to those treaty obligations? 

Judge MUKASEY. I think it’s incumbent upon us to live up to 

them. The question of whether they’re self-executing or not is a 

very delicate question and I’m— 

Senator GRAHAM. Fair enough. The only point I’m trying to make 

is that we’ve had a fight that’s been unnecessary for far too long 

143 

between the Congress and the administration over what roles we 

play. I am convinced that we’re only going to win this war if we 

act in concert to the best of our ability. 

I really applaud your testimony earlier when you said that America is at its strongest, not only from a legal point of view but from 

just an effective point of view, when all three branches are on the 

same sheet of music. 

Now, here’s where I part from some of my colleagues about what 

the law requires of the United States: would you advise the President of the United States to allow unlawful enemy combatants to 

have habeas rights, to grant them habeas corpus rights at 

Guanta ́namo Bay? 

Judge MUKASEY. I would not advise the President to grant rights 

beyond those that they already have, which include, as I read it, 

eventually, an appeal that is, certainly on an appellate level, more 

substantial. 

Senator GRAHAM. Right. The big issue for us as a country is, who 

should determine the status of a potential enemy combatant? It is 

my view that, under the Law of Armed Conflict, under Geneva 

Convention Article 5, that is a power reserved to the military. A 

habeas petition would allow the potential enemy combatant to take 

their case to a Federal court of their choosing and the power to determine the status would be given to a Federal judge, not to our 

military, and I object to that. 

How long have you been a Federal judge? 

Judge MUKASEY. I was a Federal judge for 18 years and a bit. 

Almost 19 years, actually. 

Senator GRAHAM. My concern is that if we allowed every enemy 

combatant to have a full-blown habeas trial, we would be giving Al 

Qaeda and other groups that fall into the designation more rights 

than the Germans and Japanese, and that we would be creating 

chaos for our country in the war on terror. 

I would read a quote here from Justice Jackson in the 

Eisentrager case. Are you familiar with that at all? 

Judge MUKASEY. Yes. 

Senator GRAHAM. He said, ‘‘It would be difficult to devise more 

effective fettering of a field commander than to allow the very enemies he’s ordered to reduce to submission to call him to account 

in his own civil courts and divert his efforts and attention from the 

military offensive abroad to the legal defensive at home, nor is it 

unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion, highly comforting to enemies of the United States.’’ 

Do you associate yourself with that concern? 

Judge MUKASEY. Yes, I do. 

Senator GRAHAM. Now, as I understand the Military Commission 

Act, every detainee at Guanta ́namo Bay will have access to Federal 

court. Is that your understanding? 

Judge MUKASEY. Eventually. After the c-cert process is completed. 

Senator GRAHAM. And the DC Circuit Court of Appeals will be 

able to look at two things: whether or not the evidence justifies the 

finding by the military of a preponderance that the person is, in 

fact, an enemy combatant; and they will also look at whether or not 

144 

the procedures in question are constitutional. Is that your understanding of the law? 

Judge MUKASEY. It is. 

Senator GRAHAM. And that’s the Vizmuller case, is that correct? 

Judge MUKASEY. I believe so. 

Senator GRAHAM. I have proposed for many years now, and I will 

reassert this idea, that one way to make this c-cert process better 

would be to provide military legal counsel to unlawful enemy combatants. How does that idea strike you? 

Judge MUKASEY. I don’t know what the process is now. I certainly—I mean, I said when—in the Padilla case that once you conceded that somebody had the right to file a habeas petition, there 

was no practicable way, particularly in that case, for them to do 

it other than through a lawyer. 

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

with that? 

Judge MUKASEY. Yes. 

Senator GRAHAM. So we need to come up with a process that’s 

a bit of a hybrid of the traditional Law of Armed Conflict. 

Judge MUKASEY. Yes. 

Senator GRAHAM. I’ve also suggested in the past, and will suggest again in the future, that the tribunals in question, the combat 

status tribunals, be managed by a military judge. Do you have a 

problem with that? 

Judge MUKASEY. I do not. 

Senator GRAHAM. OK. 

Well, we’ll be talking much further in depth about these issues 

because they’re new, they’re novel, and they’re important. 

I would end with this, Mr. Chairman. I am often asked about, 

why do you want people to have lawyers who will cut our heads 

off, and why do we not waterboard people to get information to 

make us safe? Because at a certain level, Americans understand 

that the people we’re fighting have absolutely no boundaries, and 

some of them believe the law is a nicety and is a weakness. 

I believe that the law is one of the strongest things we have in 

our arsenal against our enemy. Do you agree with that statement? 

Judge MUKASEY. I do. 

Senator GRAHAM. And if you want to throw everything that 

America has against the enemy, the best thing we could throw at 

the enemy is a process that the world would want to emulate and 

be proud of. Do you agree with that? 

Judge MUKASEY. I do. 

Senator GRAHAM. Wouldn’t it be nice to show Sunnis, Shi’as and 

all those who have grudges and seek revenge that there’s a better 

way, and there’s no better way for America to lead the world when 

it comes to the war on terror than to take an enemy who has done 

us terrible harm and treat them in line with our values, give them 

lawyers when they would give us none, have a process where a civilian court could review the military work product, and let the 

world know that whatever happened to the enemy combatant 

wasn’t a result of religious prejudice, anger, or revenge, but was a 

145 

result of due process of law. Don’t you think that’s the best way 

to fight this war? 

Judge MUKASEY. I do. I’m reluctant to add a footnote, but I have 

to. 

Senator GRAHAM. Please. 

Judge MUKASEY. And that is that so long as we don’t compromise 

our ability to gather intelligence as we do that. 

Senator GRAHAM. And it’s my understanding that every one of 

the provisions I just outlined about what happens to a detainee in 

our charge, that you support that the law be applied, that when we 

capture someone, that we do have to live within the law that applies to the detainee’s treatment. Correct? 

Judge MUKASEY. Yes. 

Senator GRAHAM. Now, Sheik Muhammad, I was at his combat 

status review tribunal, there’s allegations that he may have been 

waterboarded. For about an hour and a half, he spoke about his involvement in 9/11 and other acts of terrorism without one person 

touching him, so I have no doubt that he did what he said he did. 

But if there was evidence obtained through waterboarding, would 

you be comfortable with that evidence being used in a military 

trial? 

Judge MUKASEY. I don’t know what’s involved in waterboarding. 

I would be uncomfortable with any evidence being used in a trial 

that’s been coerced. So, I’m— 

Senator GRAHAM. And one of the reasons you’d be uncomfortable 

is because what we set in motion could come back to haunt us. 

There was a proposal last year—and I will end on this thought— 

that in our military commission system it would be OK for the 

prosecutor to hand a document or a piece of evidence to the jury 

marked ‘‘classified’’ to be considered on innocence or guilt and 

never shared with the accused because of national security concerns. 

My fear of that procedure would be one day that maybe one of 

our guys or gals would be caught in Iran, trying to figure out what 

the Iranians are up to and that there would be a trial conducted 

in Iran where the Iranian judge would receive a document from the 

Iranian prosecutor marked ‘‘classified’’, never shared with the 

American accused. The person would be found guilty, sent to the 

death chamber, and we would lose the right to object to that proceeding. 

The point I’m trying to make is, what we do now on our watch 

can come back to affect us in other wars. Do you agree with that? 

Judge MUKASEY. I agree that it can. Yes. 

Senator GRAHAM. You’re in a unique position, in a unique time 

in American history, to make sure that we balance our national security interests against the values that make us stronger than our 

enemy, and I have every confidence you will do a good job. Thank 

you. 

Judge MUKASEY. Thank you. 

Chairman LEAHY. If I might just use the prerogative of the chair, 

I just want to make sure I fully understand something. You said 

that you would not want to compromise our ability to gather intelligence. You’re not suggesting, are you, that we compromise our 

ability to gather intelligence if we exclude torture? 

146 

Judge MUKASEY. No. The question concerned providing counsel, 

and there’s often a question about the timing of that. People gathering intelligence need time to talk to somebody, to use all the 

techniques that need to be used to gather intelligence, and to the 

timing. 

Chairman LEAHY. And we speak about, if we had somebody who 

was a serial murderer, a U.S. citizen committed a series of heinous 

crimes and would obviously pose a danger to the population was 

brought before you as a judge and said, we have a confession, we 

got it after we tortured the person for 3 days, you wouldn’t allow 

that confession. 

Judge MUKASEY. Correct. It’s out. 

Chairman LEAHY. Thank you. 

Senator Whitehouse? 

Senator WHITEHOUSE. Thank you, Mr. Chairman. 

First, let me just take a moment to associate myself with the several propositions that Senator Graham just enunciated regarding 

the value of the rule of law as a force for good and for strength on 

the part of our country and the world, and his remarks regarding 

a judicial system that the rest of the world would wish to emulate 

and be proud of. That was very well said. 

Second, I’d like to recognize Director Freeh, who is here, who I 

had the honor of working with when I was the U.S. Attorney for 

Rhode Island. He was the Director of the FBI, and the Federal Bureau of Investigation, under his watch, did some really exemplary 

work in Rhode Island. 

If I may, I will take a sentimental moment to reflect on the accomplishments of Dennis Aiken, who led a remarkable undercover 

investigation into municipal political corruption and is shortly to 

retire. George Rosenberger, who led a very effective investigation 

into a criminal gang organization that was probably better covered 

by wire tap and other surveillance than some major Hollywood productions. He was exceptional. He has just retired. And Special 

Agent John Truslow, who did a spectacular job of making a really 

precedent-setting environmental case, and shortly thereafter 

passed away from brain cancer. 

I raised these names not only because Director Freeh is here, but 

because they also represent, along with so many other people who 

you will shortly, with luck and approval of this committee and the 

Senate, be supervising and in charge of within the structure of the 

Department of Justice. 

And I have to tell you, I’m worried about the Department of Justice. It is an institution that is very significant in American life, 

and I think it has sustained significant damage. I’m not convinced 

that simply replacing the person at the top, although necessary, is 

sufficient to cure the problems that I see. I wanted to discuss some 

of these issues with you, Judge Mukasey. 

First, just a completely open-ended question, but I would like to 

get you to say a few words for the record about what you consider 

the role of the U.S. Department of Justice to be in this country and 

what its posture should be to the American people. 

Judge MUKASEY. The role of the U.S. Department of Justice is 

to uphold the rule of law. This is a country that defines itself—I 

think it’s the only country in the world that defines itself—by a 

147 

written Constitution, the supreme law of the land, and nothing 

else. We don’t define ourselves by blood, or territory, or a particular 

history. We define ourselves by the rule of law. 

So, the Department of Justice is central to this country’s definition of itself. I don’t mean to put myself at the center of this. As 

I said in my introductory statement, this isn’t about me. It’s about 

the Department of Justice. That is, to me, its role. 

Senator WHITEHOUSE. And what should the American people be 

able to look to it for? 

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

Senator WHITEHOUSE. The Department of Justice is an institution. It is an organization. It is a bureaucracy. It has rules. It has 

regulations. It has structure. It has traditions. In my view, many 

of those structures, traditions, practices have been developed over 

many years by people who work in that Department and who see 

it as you do, as safeguards to help assure that the decisionmaking 

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

As much as I think there has been a failure of leadership at the 

Department of Justice and a rot from the top, as I said, I don’t 

think replacing leadership alone is necessarily enough, because my 

sense is that there are structural issues that need to be set right. 

I think of things like the rule that lasted for many years, that 

limitation between the—conversation between the White House 

and the Department of Justice over pending investigations would 

be strictly limited, which was taken apart by two separate memos 

in the previous administration of the Department of Justice. 

I think about the longstanding policy that investigations would 

not be announced shortly before elections where they’d be likely to 

influence the outcome of an election, a restriction that was recently 

removed from the manual of the Department of Justice. 

I think about the independent appointment of U.S. Attorneys as 

men and women from their local communities who get advice and 

consent of the Senate and who are not fired, except for cause, as 

a structural protection that helps the Department in a kind of internal check-and-balance mode. 

I think of the role of career employees as a sort of steadying influence on the Department of Justice, and I think of, even in the 

book by Mr. Goldsmith that Senator Schumer mentioned, he discussed, just within the OLC component of the Department of Justice, the ‘‘norms and practices’’ that had developed. 

My question to you, sir, is what will you do to inquire into what 

norms, and practices, and protocols, and rules, and regulations 

need to be restored, need to be brought back into service to perform 

the function that they were set up to, which is to provide those protections for the Department of Justice in the exercise of its duties? 

Judge MUKASEY. To the extent that I’ve done any management, 

including management of the court that I served on—which I recognize was, compared to the management that I’m about to undertake, a sandbox. I acknowledge that. I’ll bring that out on direct— 

my style has been a hands-on style. I’m not talking about micromanagement, I’m talking about taking responsibility for decisions 

and making myself aware of what was going on in the organization 

148 

that I was nominally the head of so that I didn’t get surprises. I 

will do the same thing in the Department. 

I will talk to the people in the Department. There is such a thing 

as the Attorney General’s Advisory Committee, which, as you know 

because you were a U.S. Attorney, is a body of U.S. Attorneys 

drawn from all over the country on a regional basis who do, or 

should—and will if I’m confirmed—meet regularly with the Attorney General so that the Attorney General understands what is 

going on in those offices, what their problems are, and can do 

something to help them out and to maintain uniformity of standards. 

I will talk to not only the Assistant Attorneys General at the 

head of each of the divisions within the Department, but also the 

people within their units. I want to hear not only what the person 

at the top is saying, but what the people below are saying so that 

I can figure out whether decisions are being properly made, and if 

necessary, tweak them a bit. 

I believe that I should have confidence in Assistant Attorneys 

General who were appointed to head each unit, and I will. But 

they’re not going to be the exclusive source of information for 

what’s going on. I am also going to talk to people who have served 

in the Justice Department in the past, people I know, some people 

I don’t know. 

Senator WHITEHOUSE. I would— 

Judge MUKASEY. And finally, I’m going to talk to, as I told Chairman Leahy when I met with him, this body and the members of 

it on a regular basis. Your collective experience with the Justice 

Department is way greater than mine, and would exceed mine if 

I served from now until I’m cold. So, I would be foolhardy to abandon that kind of resource, and I won’t. 

Senator WHITEHOUSE. I appreciate that you have said that, and 

I will be very interested in pursuing that process because I think 

that when we spoke earlier—by the way, I appreciate not only the 

time you spent with me, but the time you spent with all of my colleagues. You have reached out to the Senators in a very forthcoming fashion and I’m grateful to you for that. 

In the course of our discussion, I used the example of a ship’s 

captain who has a fire on board or who hits a rock, and once you’ve 

got the fire out or stopped the water coming in, the very first thing 

that you do is a damage assessment. I would urge you to take the 

discussion that we have just had and go forward with a really fairly formal damage assessment using all of the tools that you have 

just indicated you were willing to use and see what needs to be put 

right. 

In that regard, two specific things I’d like to ask you about. One, 

is there were memoranda that widely opened the Department of 

Justice to contact about ongoing investigations from the White 

House and other officials that is counter to very recent traditions 

documented in letters between the previous Attorneys General and 

previous White House counsels. 

Senator Feinstein again discovered that the manual had been rewritten to take out the provisions discouraging the announcement 

of investigations at a time when they’d likely influence elections. 

There may be hundreds of other such matters, but those are two 

149 

that, in the one minute I have left with you, I’d like you to touch 

on. 

Judge MUKASEY. The question of contact of people within the Department about cases is something I’ve had occasion to address in 

meetings, beginning with Senator Schumer and continuing to other 

meetings as well. There is a very small list of people who can be 

contacted by anybody who is an elected official or who purports to 

speak for an elected official about a case. 

The only proper response by anybody else who’s contacted is to 

make that person aware of the people that they can properly contact and end the conversation. That’s going to be the standard that 

will govern, and I will do that. I will make that known and that 

will be the policy, and that will be the rule. 

Senator WHITEHOUSE. And ‘‘elected official’’ includes the President? 

Judge MUKASEY. Most emphatically, it includes the President. 

Senator WHITEHOUSE. Very good. 

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

Judge MUKASEY. I think it is obvious that the closer you get to 

an election when you have a politically sensitive investigation, the 

less and less can be the justification for announcing it, unless there 

is some overriding need to go forward, such as a lapse of the statute of limitations or something of that sort. But other than that, 

that window keeps closing. 

Everyone involved in an investigation has to be sensitive to the 

possibility that announcing an investigation or a prosecution can 

influence the outcome of an election, and that that is not what investigations are supposed to be for, or prosecutions are supposed to 

be for. 

Senator WHITEHOUSE. Thank you, sir. 

Mr. Chairman? 

Chairman LEAHY. Thank you. We’ll take about a 5-minute break 

and then come back. Probably a 10-minute break, then come back. 

Thank you. 

Judge MUKASEY. Thank you. 

[Whereupon, at 4:06 p.m. the hearing went off the record.] 

AFTER RECESS [4:20 p.m.] 

Chairman LEAHY. Thank you. Judge, thank you very much. And, 

I must say, your family are the most patient people. I was talking 

with Judge Freeh, Louie Freeh, a few minutes ago during this time 

that we were—his patience and all your support is here. 

Senator Cardin? Speaking of patient people, Senator Cardin of 

Maryland. 

Senator CARDIN. Well, thank you very much, Mr. Chairman. 

Judge, the good news might be that I might be the last person 

to question this round. We’ll see whether other members show up. 

But, first, I want to thank you. I want to thank your family for 

your willingness to serve our country. These are difficult times and 

we very much appreciate your willingness to step forward. And I 

must tell you, I’ve been very impressed by the direct answers that 

you’ve given to very important questions. 

When you and I met, I talked about the independence of the Department of Justice and the Attorney General and, I must tell you, 

150 

I’m very impressed by your answers today. I think they are pretty 

clear and I think we need that and I think it will go a long way 

to the morale within the Department of Justice. 

I want to return to the Civil Rights Division. It seemed like that 

got tacked on as the end of two rounds of questions, but I want to 

spend a little time on it with you, because I think it’s very, very 

important. 

I am concerned about what’s happening within the Civil Rights 

Division. This is the 50th anniversary of the Voting Rights Act, in 

which the Civil Rights Division was created, and it has a proud 

tradition of fighting to enforce antidiscrimination laws passed by 

Congress in the areas of voting rights or civil rights or housing, 

elections, employment, so many areas that the division has been 

active over the last 50 years. 

I usually judge how a company or an employer does by the 

record, the facts. If a company tells me that they support diversity 

and open opportunity, if we look at their employment practices and 

see few minorities, I question that. 

So in the Civil Rights Division, I am extremely concerned about 

the lack of types of cases that have been brought and the type of 

cases that have been brought over the last 6 to 7 years. There are 

very few cases that have been brought to help minorities as far as 

their rights to vote and there have been very few disparate cases 

brought in employment and in housing compared to previous administrations. 

So I do want to give you a chance to tell us your commitment 

to making the Civil Rights Division the priority it needs to be, and 

it starts, first, with the Assistant Attorney General. That position 

is vacant and I would like to know your game plan for filling that 

office. 

I must tell you, one more point and then I’ll give you a chance 

to respond. It seems to me that we should have somebody in the 

Civil Rights Division that has experience in civil rights law. You 

wouldn’t put somebody at the Antitrust Division that didn’t know 

the antitrust laws. You wouldn’t put somebody in the Criminal Division that didn’t know criminal law. 

You need somebody that has a background in civil rights and 

someone who is respected among the advocacy community. 

I hope this will be a priority and I hope you will give us—maybe 

shed some light as to how you plan to proceed with the Civil Rights 

Division. 

Judge MUKASEY. I spoke briefly to the current head of the Civil 

Rights Division. I spoke briefly, also, to a woman named Grace 

Chung Becker, who is in the Civil Rights Division in a senior position, and impressed me, during our, admittedly, brief conversation, 

with her familiarity not only with the law, but what, in fact, the 

division is doing and I—she’s a person who inspired, in my meeting 

with her, a great deal of confidence. 

I’m not, as you know, the nominating authority for doing this, 

but I was very well impressed with her and I would hope that 

someone of her caliber, if there’s to be a change at the top in the 

Civil Rights Division, would step forward and undertake the leadership of that department. 

151 

Senator CARDIN. My expectation is that the President is going to 

rely heavily on your views on many of these decisions. There’s a lot 

of openings at key positions within the Department of Justice, 

many that require confirmation by this committee, and I expect the 

President is going to be relying heavily on your recommendations 

for many of these appointments. 

I would feel a little more comfortable just to hear your priorities 

for the Civil Rights Division. I think that’s an area that requires 

the Attorney General to spend some time in understanding the importance and letting it be known to the Department of Justice the 

importance of that division. 

Judge MUKASEY. The priorities of the Civil Rights Division are 

both the historic and the current. Historic, equal protection is a 

principal goal and a principal mandate of that department. 

More recently, prosecution of hate crimes has become, sadly, 

much a priority and, regrettably, when you have one of those 

crimes, other adult people get it into their minds to do the same 

and you get an outcropping and a proliferation of that sort of thing, 

and we’ve seen some of that, although I think it’s being tamped 

down gradually. 

And the prosecution of hate crimes is something that the Civil 

Rights Division is very actively involved in and has to continue to 

be actively involved in. 

Senator CARDIN. Well, since you mentioned hate crimes, I’m glad 

you did, because I think the number of episodes in this country has 

increased dramatically, including my own State, where we had the 

newest episode at the University of Maryland and there’s been 

throughout the country recently, it seems like, a lot of new episodes 

that are very disturbing. 

There have been hate crimes that involve not only race, but religion, ethnic background, and sexual orientation. 

I’m glad to hear of your interest in having the Department of 

Justice be aggressive in that area. I hope that they will be. We 

have a bill working its way through Congress to try to strengthen 

that law and I would encourage you to take a look at it, because 

it works in conjunction with State governments and local governments, because I think Department of Justice can assist in local 

prosecutions in regards to hate crimes. 

And I would hope that you—I’m glad you mentioned and, I can 

tell you, you’ll have partners here in Congress encouraging you to 

be as aggressive as possible. Of course, I think that’s one of the 

most important things we can state, as a nation, is to not tolerate 

any forms of hate crimes. 

Let me talk about election law for a moment, if I might. 

This is, I guess, a typical example of my concern about the Civil 

Rights Division. The Civil Rights Division traditionally has worked 

to enfranchise, to provide more opportunities for individuals to 

vote, to remove obstacles. 

Yet, in 2002, there was a major shift, when it looks like the Department of Justice Civil Rights Division was aimed at more of trying to prevent fraud than it was to remove obstacles to voter participation. And it reached, I think, the low point with the sign-off 

on the Georgia Voter ID. 

152 

Even though the Secretary of State of Georgia could give us no 

examples of people using false identification or false persons to 

vote, Georgia moved forward with the voter identification. 

The Civil Rights Division signed off on it, against the advice of 

the career attorneys, signed off on it. The courts ultimately decided 

that it would not go forward, it violated the law, and it would work 

to disenfranchise particularly minority voters and those who are 

homeless, those who are of lower income, from being able to participate and vote. 

So I guess my question to you is, will your priority and your instructions to the Civil Rights Division be the traditional role of the 

Department of Justice in trying to remove obstacles to particularly 

minorities being able to vote or will it be more to try to do the 

Georgia type of voter ID laws? 

Judge MUKASEY. Respectfully, I don’t think it’s an either/or proposition. I think that voter enfranchisement, voter empowerment, 

opening up the vote and opening up access to the vote and preventing people who shouldn’t vote from voting are essentially two 

sides of the same coin. 

That coin is a very valuable one. It’s the value of the vote. I 

guess one of the joyful duties I had as a judge was swearing in new 

citizens and a big part of the talk that I gave, the brief talk that 

I gave to them afterwards, always involved their obligation to inform themselves and to vote. 

Nobody who votes wants to see his or her vote diluted by the 

vote of someone who is not entitled to vote. But people who want 

to vote, who are authorized to vote and should vote, have to be— 

have to have access to that and everything has to be done to keep 

that open. 

Senator CARDIN. Do you agree with the court decision in Georgia 

that said that the voter ID was the ‘‘modern day poll tax’’ and that 

it would not be allowed to go forward with in Georgia? 

Judge MUKASEY. I don’t know whether that— 

Senator CARDIN. I think that’s a direct quote from the judge. 

Judge MUKASEY. I think if a means of identification is made 

available and accessible and every step is taken that allows people 

who have a right to vote to get access to that, to be informed about 

its availability, then to say that it’s the modern day equivalent of 

the poll tax seems to be a little bit over the top. 

Senator CARDIN. If you’re a homeless person, if you’re a person 

with a disability, if you’re in the immigrant community, these ID 

cards are very difficult and sometimes offensive. 

Judge MUKASEY. If they’re difficult, then that difficulty has to be 

overcome and a way has to be found to get people with disabilities—to make those cards available to the people with disabilities. 

If they’re homebound, have people go to their homes, if necessary. 

I’m not saying that those cards should be difficult to get or have. 

Senator CARDIN. I guess my point would be that I would certainly want the Civil Rights Division looking at the balancing between making sure that only those who are qualified to vote vote, 

but to try to get the largest possible participation in our election 

process. 

And if we put our energy into trying to weed out the few that 

maybe are committing fraud and, as a result, we end up with a 

153 

huge number who are disenfranchised, that shouldn’t be what the 

Department of Justice is doing. 

I hope you agree with that. 

Judge MUKASEY. I certainly do. 

Senator CARDIN. Thank you. Appreciate that. 

Let me just mention, very quickly, we had some problems— 

there’s some new problems developing in the election procedures, 

where candidates and parties are using an effort to disenfranchise 

voters as a way to win elections. 

We saw that with misinformation sent out in the most recent 

elections concerning voting dates, giving the wrong dates to voters, 

to tell minority community—targeted to minority communities that 

if you have unpaid parking tickets, you’ll be arrested if you try to 

vote, if you haven’t paid your taxes, you’ll be arrested, things like 

that that are aimed at minority communities to suppress their 

votes. 

I hope that you will show interest in trying to figure out a strategy where we can combat those types of practices. There’s legislation moving through Congress that Senator Obama, Senator Schumer and myself have cosponsored. I hope that you would take a 

look at that. 

Judge MUKASEY. I certainly will. I certainly will. I mean, that’s 

flat-out fraud and that’s pernicious fraud. 

Senator CARDIN. Thank you. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. Thank you very much. And we 

will—I think you’re probably going to be getting a lot more questions on these areas of voters and how that is set up, especially as 

we go into next year. 

I agree with what you said about telling people who are new citizens, who have just been sworn in, the right to vote. I found that— 

I’ve been privileged to be in many of those ceremonies when Federal judges in my State have sworn people in. 

This is the most eager thing, they can vote. You hear that from 

everybody. My grandparents, when they immigrated to this country 

from Italy, they told me that one of the most exciting things, they 

could go in and vote. 

Senator Sessions? I’m sorry. That did not come out of your time, 

I assure. 

Senator SESSIONS. Thank you, Mr. Chairman. I think it’s been a 

very good day, indeed, Mr. Chairman, that you and Senator Schumer and others feel confident in supporting this nominee. 

I think it is important, at this point in history, Judge, that we 

have an Attorney General that people on both sides of the aisle can 

support and have confidence in. You’ve earned that, I think, over 

a lifetime. 

You seem to have the gifts and graces, at this important time, 

to do the job. I think, having been in the Department of Justice for 

15 years, and nothing I’ve done I’ve been more proud of than working with that fine team of people I had the honor to work with, I 

think it is time for a steady hand, a professional. 

I think it’s critical and one of the things you’re going to have to 

do, and you’ve already felt, from the questions you’ve received, is 

to bring some clarity out of the confusion of national security 

issues. 

154 

I mean, we are quite confused about that. I think the public is 

confused about it and I think we’ve got to get that clarified. I hope 

that will be one of the legacies that your tenure will allow you to 

accomplish. 

I’ve said repeatedly that the Attorney General has got to say no 

to the President if he wants to do something, just like a good corporate lawyer has to tell the CEO sometimes, ‘‘We can’t do it that 

way, Mr. CEO’’ or ‘‘Mr. President. You can do it this way, but you 

can’t do it that way.’’ And then you’ve got to be able to articulate 

and defend the legitimate actions of your President, the head of the 

executive branch, and I’m not sure we’ve done that very well. And 

so things have gotten pretty confusing. 

Do you feel that is a responsibility of yours and do you feel that, 

at this present time, the President’s popularity numbers are not 

high, Congress has just changed hands, and people are beating up 

the administration in every way, right and left, do you feel an obligation and do you feel that you’re ready to give us honest, straight 

answers and to provide a good defense for the legitimate prerogatives of the executive branch? 

Judge MUKASEY. I do, and I particularly agree with your statement that we need to clarify. We need to be clear about what it 

is we’re doing and why it is we’re doing it. People need to understand that and that case has to be made. 

Senator SESSIONS. Well, you’re a man of good judgment and clear 

thinking, by all accounts. You have broad experience, integrity. 

I believe Senator Schumer said you were a man of the law. I like 

that phrase. I think that’s what you need to be. And you’ve certainly had great experience. 

So I think that you can make those—help those who are placing 

their lives at risk for us this very day all over the world in hostile 

lands in order to execute policies that we sent them to execute, 

that they don’t need to be denied wrongfully the intelligence and 

support they need to be successful, that the American people are 

entitled to a vigorous and effective defense against terrorism and 

people who would attack innocent men and women and children, 

and that requires intelligence and hard work, and some of these 

issues are tough. 

But we have a lot of legitimate powers and I hope that you will 

be effective in helping us articulate that so that we can be safer. 

Judge MUKASEY. If I’m confirmed, I’m going to do my best. 

Senator SESSIONS. Thank you. I agree, I think, with Senator 

Cardin that assembling a topflight staff is going to be a top priority 

of yours. You’re going to have to work hard at that. 

I believe you can get those people. I think it’ll be easier for you 

than your predecessor to attract the topflight people and, as someone who’s been a part of the department, I know a lot of those deputies and associates are critical to success, and I hope that you will 

do that. 

And don’t hesitate to criticize or stand up to the Congress and 

some of the legislation that gets passed or gets promoted. 

I remember, after 9/11, we had the FISA Act and the PATRIOT 

Act and there was no disagreement that it was a mistake to have 

created a wall between the FBI and CIA. There was no disagreement that the law that prohibited our intelligence officials from neVerDate Aug 31 2005 11:11 Sep 04, 2008 Jkt 039985 PO 00000 Frm 00160 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\39985.TXT SJUD1 PsN: CMORC
155 

gotiating and talking with or developing relations with people who 

have had bad reputations and had done bad things was a bad idea, 

and we changed that. 

And I just say that to say they passed those bills in an effort to 

improve civil liberties and it ended up to not be necessary. It ended 

up to be a big mistake and may well have contributed to 9/11. 

So I’ll ask you, will you be willing to tell us if we’re trying to 

push something through here that’s in error? 

Judge MUKASEY. I am not a bashful person and I’m not going to 

become a bashful person if I’m confirmed. I will speak up when I 

think I have to. 

Senator SESSIONS. Well, I was actively engaged in the immigration debate this summer and last year. We had a remarkable national debate. 

The matter had been bubbling for about 2 years and I think the 

American people spoke clearly. Their will is very clear. They want 

a lawful system of immigration. They want to be compassionate, 

they want to do a lot of things, and we have different agreements 

about some things, but one of the things that they’re committed to 

is creating a lawful system of immigration. 

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

Judge MUKASEY. I do. 

Senator SESSIONS. I believe the American people would like to 

maybe hear you say something about your commitment to that. I 

say that because there’s a great deal of cynicism. 

For 40 years, no President and no Attorney General has given a 

high priority to enforcing our immigration laws. We arrested, last 

year, a million people attempting to enter the country illegally. 

Can you share with us and place at ease those who feel strongly 

about this, as a chief law enforcement officer, your willingness to 

take the steps necessary to be effective? 

Judge MUKASEY. I hope I can. This is, as has been said many 

times, a nation of immigrants. Franklin Roosevelt once sent a letter to the DAR, began with the salutation, ‘‘My Fellow Immigrants,’’ and my father was an immigrant to this country. 

This country has been made great through the contribution of 

immigrants. In fact, the immigration problem that we have, our 

border problem, is an aspect of how successful we’ve been. Other 

countries have border problems, we have border problems. 

Generally, theirs involve people trying to get out. Ours involve 

people trying to get in. We need to control that. We need to control 

it for a wide variety of reasons, including maintaining our national 

security, and we can’t have a system in which the only sanction 

that results from an attempt to come into this country illegally is 

that you get to try it again. That’s the kind of catch-and-release 

program that we’ve had an it’s brought us trouble. 

When we met, you described to me a program or an initiative 

that was being carried out, I think, in Del Rio, is it, that had been 

successful in the bringing of some misdemeanor prosecutions 

against people who are unlawful entrants. I think that’s something 

we need to try to look at and followup if we have the resources. 

I recognize this is a question of allocation of resources and I’m 

not talking about filling up the jails with people who are crossing 

the border, if we can’t do that, but I think we need to try to invesVerDate Aug 31 2005 11:11 Sep 04, 2008 Jkt 039985 PO 00000 Frm 00161 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\39985.TXT SJUD1 PsN: CMORC
156 

tigate the possibility of bringing to bear some sanctions so that the 

only result of coming in illegally is not that you get to try it again, 

because, otherwise, we’re just going to buy ourselves more and 

more of what we’ve had, which is not satisfactory. 

Senator SESSIONS. I think you said that truly. We have seen, in 

two areas of the border, where misdemeanor prosecutions have 

been brought for illegal entry and they are those offenses, that, in 

one area, a 50 percent decline in entry and, another area, 70 percent decline. 

We’ve passed an amendment that I offered yesterday or the day 

before that was accepted that would allow us to expand that program. 

Would you commit to examining that program and, if it works, 

like perhaps the Broken Windows program that worked so well in 

New York, start with those little things and maybe the whole system can be turned around in ways we can’t anticipate today, would 

you look at that had? 

Judge MUKASEY. I will commit to looking at it hard. I should recognize that this is not exclusively a matter within the control of the 

Justice Department. The Department of Homeland Security has an 

important voice. 

Luckily, I know Secretary Chertoff from another movie, as they 

say, go back a ways, so I can talk to him comfortably about that. 

Senator SESSIONS. Well, I do feel like there are a lot of things 

that can be done and one of them is to create an impression, a correct impression that our borders are no longer open, and that we 

are serious about it and even misdemeanor prosecutions can be effective. And I think the squeegee guys in the Broken Windows are 

sort of a comparative example there of how to restore law and it 

starts oftentimes with not just the biggest cases, but with smaller 

cases. 

You’re probably aware that Federal law requires the deportation 

of convicted criminal aliens, those who are here legally or illegally, 

but are convicted of serious crimes. 

Do you support the enforcement of that law? 

Judge MUKASEY. Yes, I do. 

Senator SESSIONS. It’s not being effectively enforced now. Department of Homeland Security Inspector General says that at least 

half of those that are serving time in prisons today will not be removed according to the law. 

Attorney General Gonzales admitted there was a problem in July 

in this committee. He said, ‘‘The level of cooperation between DHS 

and DOJ is not what it should be.’’ 

So will you take a leadership role to see if you can confront this 

issue and make sure that we are effectively identifying those who 

either committed—I’m not talking about entry crimes. I’m talking 

about violent crimes, drug dealing and the like once they’ve been 

in the country. 

Judge MUKASEY. I will certainly take an active role in it. I think 

there’s a third party to that conversation and that’s the country to 

which they have to be deported, and I can understand that some 

of those countries may not be eager to receive alumni of our prison 

system. But that’s something we’re going to have to overcome. 

157 

Senator SESSIONS. Well, you know, that is true, but that is a 

matter that can be overcome if we have the will to overcome it, I 

believe. 

I know Senator Specter raised a question one time of, well, 

maybe we should stop entries from those countries if they don’t 

agree to take them back. You have to send the clear message that 

we’re serious about it. 

On the question of voting rights—my time is up, Mr. Chairman— 

I do think that—I hope that you will not ignore the requirements 

of the Voting Rights section that fraud be prosecuted, also. I trust 

you will not ignore that responsibility. 

Judge MUKASEY. I will not ignore it. 

Senator SESSIONS. Thank you, sir. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. Well, I think, one, I will say, 

Judge, I’ve been pleased to see you engage with Senators from both 

sides of the aisle. I appreciate the succinctness of your answers, 

with the clarity of them. 

I think that we have a—as I told you before, we have a Department of Justice which has been badly shaken by a prolonged crisis 

of leadership and I think these hearings can begin to repair that. 

A number of your answers have indicated your independence, 

your agreement that political influence has no place in law enforcement. Any of us who have had the privilege of serving in law enforcement know that that has to be the case. 

And I think we agree the Department of Justice is far too important an institution to remain dysfunctional and want to get it back 

to its law enforcement mission. 

Tomorrow we will start and Senator Specter and I will have 

questions. There will be no opening statements from anybody. I 

want to go back to the price of executive privilege, how you’re going 

to test such claims, how you resolve them. 

I’ve got a couple other matters that I want to followup that I did 

not have time to this morning, and I would urge Senators who wish 

to ask questions to be here. I thank all the Senators who have been 

here today. 

After we finish that, we’ll then have a panel of experts who are 

going to testify on some of the issues we’ve had here. 

But you’ve had a long day, Judge. Your family has had a long 

day. At least you had the adrenaline and the ability of being there 

answering the questions. They have to sit there and think, ‘‘Is he 

really going to say that?’’ No. So I appreciate you being here. 

We’ll stand in recess until tomorrow. 

[Whereupon, at 4:50 p.m., the hearing was adjourned.] 

(159) 

NOMINATION OF MICHAEL B. MUKASEY, OF 

NEW YORK, TO BE ATTORNEY GENERAL OF 

THE UNITED STATES 

THURSDAY, OCTOBER 18, 2007 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 10:07 a.m., in room 

SH–216, Hart Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Kohl, Feinstein, Feingold, Schumer, 

Durbin, Cardin, Whitehouse, Specter, Hatch, Grassley, Kyl, Sessions, Graham, Cornyn, Brownback, and Coburn. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. ‘‘Good morning,’’ he said subtly, 

for the sake of the photographers. 

Judge, at one of these hearings, before we start, I should mention 

that there was a screen on the front here. Without thinking one 

time at one of these hearings, I started kicking on the screen. I 

thought it was solid. I realized, to my embarrassment, I was kicking the back of one of the photographers. Within 15 minutes, the 

word had gotten around, and my son-in-law, Lawrence Jackson, 

who is an AP photojournalist, sends me an e-mail saying, ‘‘You 

really shouldn’t be that rough with them. They are very nice people.’’ And so I am being careful not to do that today. 

I would repeat what I said yesterday. I do not think it would be 

necessary, but obviously, if there are any demonstrations either for 

or against any position of Judge Mukasey, Senator Specter, myself, 

or anybody else in here, the demonstrators will be removed. We 

want everybody to have a chance to have these hearings. 

So if I might start, what we will do today, I will ask a series of 

questions, Senator Specter will, and then we will go back and forth 

in the usual order. 

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

Judge, I want to go back to your last answer to me yesterday, 

and you and I discussed this a little bit outside. You said a U.S. 

Attorney could only refer a contempt citation of Congress to a 

grand jury as required by law if he or she believed reliance on the 

President’s executive privilege claim was unreasonable. 

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I have some trouble with that. I do not think you rule on claims 

of privilege when they are raised by seeing whether they are reasonable but whether they are valid, so let us talk a little bit about 

this. 

If Congress were to refer a contempt citation—and there is a real 

probability there will be some as a result of the U.S. Attorney scandal—you are indicating that the U.S. Attorney would undertake an 

independent analysis and assess the claim of privilege in determining whether to bring the matter before a grand jury. Is that 

right? 

Judge MUKASEY. Well, let me flesh out a little bit what I understand the process to be and to have been and maybe put a little 

bit of flesh on the bones of my answer. 

As I understand it, when the White House get a subpoena, they 

refer it to the Department of Justice, as, in fact, happened here because I was shown the letter from Paul Clement relating to the assertion of the privilege. If the White House then, relying on that 

letter—the President, since he is the only person who owns the 

privilege, if he relying on the Justice Department asserts the privilege and there is nonetheless a contempt citation, we are in the position where the Department of Justice would have to prosecute 

someone who followed the advice that originated with the Department of Justice. 

I am told that there are not one but two opinions of the Office 

of Legal Counsel, one of them from Ted Olson and the other from 

a man I know and whose name I can picture—and I cannot come 

up with it now—who served in the Clinton administration, who I 

referred to yesterday. I am sure I will think of it after I leave here. 

But, in any event, there are two OLC opinions saying that that 

would not be appropriate, and— 

Chairman LEAHY. What would not be appropriate? 

Judge MUKASEY. That for the U.S. Attorney to prosecute someone for a contempt based on reliance on an opinion letter that originated in the Department of Justice would not be appropriate. It 

would be different if a letter from the Justice Department said, 

‘‘You can assert the privilege as to A, B, and C, you cannot as to 

D, E, and F,’’ and the President were to say, ‘‘I do not care. I am 

going to assert it as to all of them.’’ That would be a different story. 

Chairman LEAHY. But in some instances, I think we are talking 

about some things that are somewhat ex post facto. If you have— 

after the people are called, there had been no assertion of executive 

privilege before. Now they get called about their actions. They were 

involved in actions in which nobody had raised any question of executive privilege, but all of a sudden when they are called before 

Congress under subpoena, now somebody starts claiming executive 

privilege, don’t you have something a little bit different? Isn’t it 

somewhat difficult to claim you are acting under an assertion of executive privilege when that issue comes up after the fact? 

Judge MUKASEY. I think the basis for the assertion has to be 

evaluated, and that basis often includes reliance on opinions of the 

Justice Department because it is hard to envision that the White 

House—although it is not impossible to envision, I would think 

that the White House would seek the view of the Justice Department before it took any position on executive privilege. If somebody 

161 

went off on a tear without consulting the Department of Justice, 

I agree that would present a different set of facts. 

Chairman LEAHY. Well, you have a bit of a problem here because 

some of these claims were extremely broad. You had people cannot 

testify, saying, ‘‘I never talked to the President. I never sent stuff 

to the President. The President never asked me any questions, 

never interacted with me. But I am claiming executive privilege.’’ 

Now, that seems kind of a broad claim. 

Judge MUKASEY. As you describe it, it sounds broad. But I think 

the executive privilege covers communications other than those directly to and from the President. There is a whole range of interests that have to be protected by executive privilege that include 

setting aside matters of national security, setting aside matters of 

current litigation. There are— 

Chairman LEAHY. Well, what— 

Judge MUKASEY. I am sorry. 

Chairman LEAHY. Well, what if the President broke the law and 

somebody wanted to look into it, and he said, ‘‘Wait a minute, executive privilege. We can’t have anybody talk about what I did breaking the law because I claim executive privilege’’ ? 

Judge MUKASEY. I think part of the content of what it is in a 

communication has to be considered. There is a weighing process 

that goes on. 

Chairman LEAHY. Well, last July, when the House Judiciary 

Committee was considering a contempt citation for a former White 

House official, somebody in the administration said a U.S. Attorney 

would not be permitted to bring contempt charges or convene a 

grand jury in an executive privilege case, and the U.S. Attorney 

would not be permitted to argue against the legal opinion the Justice Department provided. 

Now, the law requires them to bring contempt charges to a grand 

jury. The White House says you cannot bring it. What do you do 

in a case like that? 

Judge MUKASEY. I fall back on two things. First of all, there are 

two OLC opinions—and the name of that other person I could not 

think of before is Walter Dellinger—that say that when the person 

asserting the privilege—when the President in the assertion of the 

privilege is relying on a Justice Department opinion, that it simply 

cannot be appropriate for the same Department that offered the 

opinion then to turn around and prosecute somebody who followed 

it. 

Chairman LEAHY. But if the U.S. Attorney does not follow the 

statute, which is very clear, how does the claim of executive privilege get evaluated? How does the conflict with the Congress get resolved? 

Judge MUKASEY. I think—I have not read the text of the statute 

recently. I think it requires the convening of a grand jury. I do not 

know whether it goes so far as to say—I do not think it goes so 

far as to say that a charge shall be a filed or that an indictment 

shall be requested. But I do not want to start parsing words delicately— 

Chairman LEAHY. Well, Judge, I will spell this out a little bit 

more clearly with you, but I would like your answer back in writing 

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before this matter is brought up before the—before the nomination 

is brought up before the Committee. 

And, last, Congress has clearly legislated in areas—we have done 

it in the area of surveillance with the FISA law, something we 

have amended repeatedly at the request of various administrations. 

If it has been legislated and stated very clearly what must be done, 

if you operate outside of that, whether it is with a Presidential authorization or anything else, wouldn’t that be illegal? 

Judge MUKASEY. That would have to depend on whether what 

goes outside the statute nonetheless lies within the authority of the 

President to defend the country. 

Chairman LEAHY. Where does the President get that authority? 

I am thinking of the Jackson opinion and others. Where does he 

get the authority if it is very clearly enunciated what he can do, 

a law that he has signed, very clearly enunciated? I mean, the 

President can say, ‘‘Well, this authority, I am going to order the 

FBI to go in and raid 25 houses because somebody told me they 

think someone is there. We are not going to wait for courts. We are 

not going to do anything else. There is no urgency. But we just 

kind of like to do that.’’ 

Judge MUKASEY. ‘‘We kind of like to do that’’ is not any kind of 

legitimate assertion of authority. And I recognize that you have 

posited the case that way for a reason. But the statute, regardless 

of its clarity, cannot change the Constitution. That has been true 

since the prize cases, and it was true before that. 

Chairman LEAHY. Can a President authorize illegal conduct? Can 

a President put somebody above the law by authorizing illegal conduct? 

Judge MUKASEY. The only way for me to respond to that in the 

abstract is to say that if by illegal you mean contrary to a statute, 

but within the authority of the President to defend the country, the 

President is not putting somebody above the law; the President is 

putting somebody within the law. Can the President put somebody 

above the law? No. The President does not stand above the law. 

But the law emphatically includes the Constitution. It starts with 

the Constitution. 

Chairman LEAHY. We will go back to this. I am troubled by your 

answer. I see a loophole big enough to drive a truck through, and 

so we will go back to it. I do not think—well, we will go back to 

it. 

Senator Specter, I am sorry. I have gone over. 

Senator SPECTER. Thank you, Mr. Chairman. 

Picking up on this issue, you testified yesterday that the President could not order torture because it would violate a statute. In 

light of your answer a moment ago, would you say that is because 

the President does not have Article II power to protect the country 

to authorize torture? 

Judge MUKASEY. The President cannot authorize torture because 

torture is barred both by statute and by the Constitution. And I 

would be happy to walk back through that if you wish. 

Senator SPECTER. Well, where in the Constitution is torture 

barred? 

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Judge MUKASEY. It is barred by the Fifth, the 14th, and the 

Eighth Amendments. The Fifth and the 14th Amendments bar conduct that shocks the conscience. They have been so interpreted. 

Senator SPECTER. Fine. I see your rationale. Let me move on the 

same issue to the Foreign Intelligence Surveillance Act, FISA. That 

provides that the exclusive procedure for obtaining a wiretap is to 

go and get a warrant on probable cause. Was the President permitted to violate FISA because of his Article II powers? Or was his 

violation of FISA a violation of law? 

Judge MUKASEY. I am not sure what violation it is we are talking 

about. If we are talking about the Terrorist Surveillance Program, 

I think I said yesterday— 

Senator SPECTER. We are talking about the Terrorist Surveillance Program, which has warrantless wiretaps, contrasted with 

FISA, which says the exclusive procedure to have a wiretap is to 

get a warrant, and what the President did violates FISA. Is it justifiable on his Article II powers because—well, that is the question. 

Judge MUKASEY. As I understand it, the President believed at 

the time and still believes that FISA was not the only applicable 

statute, that he was acting with authorization under the Authorization for the Use of Military Force. 

I understand that there is more than one view on that. He gave 

a long— 

Senator SPECTER. Judge Mukasey, I do not think anybody— 

Judge MUKASEY. I am sorry? 

Senator SPECTER.—ever really seriously contended that our resolution of September 14th authorizing the use of force encompassed 

a violation of FISA. But let me move on. There are so many issues 

to cover that I want to move into another area. I think the record 

is fairly clear as to your views on Article II power and the statute 

and what you said on torture. 

Before proceeding to some other issues, I want to make a comment about Steve Bradbury, who is the Acting Assistant Attorney 

General, Office of Legal Counsel. There has been a request—some 

members of the Committee, some Senators have asked that he be 

withdrawn from that position. I believe he is very competent, and 

I believe he ought to be confirmed. And people disagree with things 

he has done, but those acts on Mr. Bradbury’s part have been carrying out the President’s orders. 

And I think he has no choice on that, and we have been into that 

in some detail with Attorney General Gonzales when we had an 

issue about having the Office of Professional Responsibility see if 

the Terrorist Surveillance Program was properly authorized under 

the law. And Attorney General Gonzales said that was the President’s decision, put it squarely on the President, and I think that 

is what has happened with Steve Bradbury. 

In June and July, there was considerable discussion about the 

telephone companies’ responsibilities, and the Committee, when I 

chaired it, was moving for subpoenas, and Vice President Cheney 

intervened and talked to members of the Committee on the Republican side without talking to me, and I want to put in the record 

a letter I sent to the Vice President on June 7, 2006, and his reply 

to me on June 8, 2006. 

164 

Chairman LEAHY. Without objection, that will be part of the 

record. 

Senator SPECTER. Because they are relevant to my comments 

about Steve Bradbury. 

Following those letters, Mr. Bradbury and my staff and I had 

very extensive conversations about legislation which I had introduced to put the Terrorist Surveillance Program under the Foreign 

Intelligence Surveillance Court, and I found him to be very competent and very professional and very direct and very able—candidly, unusually so for someone in the Department of Justice. And 

that led to a direct meeting I had with President Bush, who agreed 

to support the legislation, which Mr. Bradbury and my staff and— 

Mr. Bradbury, others in the administration, and my staff and I had 

worked out. And I thought Steve Bradbury was A-plus, and I have 

had dealings with him since on a lot of very complex legal issues, 

and I think he ought to be confirmed. He certainly ought not to be 

ousted. 

Now on to the issue of reporter’s privilege. There is legislation 

pending which would give the reporters a qualified privilege. You 

and I discussed this informally. There have been many subpoenas 

issued in both State and Federal courts, and the Hearst Corporation summarized them as 97, the majority—since 1991, the majority of those since the year 2000, many celebrated cases where people went to jail. The Barry Bonds case was celebrated as to a contempt citation against reporters. 

The No. 1 case was the case of Judith Miller, who was kept in 

jail for 85 days for reasons still inexplicable to me. She was asked 

about the source of a leak on the outing of Valerie Plame. At the 

time there was no national security issue because Ms. Plame did 

not qualify to make it a national security issue, and it was known 

who the source was: Rich Armitage, the Deputy Secretary of State. 

And yet she was kept in jail for 85 days, which led me to push the 

legislation, and we are pushing it still. 

The question I want to ask you—and I understand that you are 

not in a position to make a final judgment as you would if you were 

Attorney General. But this matter will be coming up. We are pushing it for floor action. And the question is: There is an exception 

for national security, and it is a matter of a judge to weigh whether 

the public interest in disclosure outweighs or does not outweigh the 

national security interest. And obviously there are issues on national security that are very complex, but in our system it is up to 

judges, Federal judges, to make decisions. They deal with a lot of 

very complex issues in many, many contexts, high technical matters. And I would like to hear your views on the subject and beyond 

that to ask you to study in detail as to whether that is a sensible 

accommodation because of the importance of news gathering, which 

has in the history of our country exposed corruption, misfeasance, 

malfeasance, waste, fraud, and abuse. In the line of the famous Jefferson statement, if I had to choose Government without newspapers or newspapers without Government, he would take newspapers without Government. 

But we intend to push this, and we would like to reach an accommodation that satisfies the administration on the national security 

issue. What do you think? 

165 

Judge MUKASEY. First of all, I have my own history of having 

represented reporters, of having asserted the New York shield law 

successfully, and as you put it, it sounds almost innocuous. But I 

have some anxiety when it comes to national security cases because 

although Federal judges—and I used to be one of those, too, and, 

therefore, I have high regard for them. 

First of all, it is not always possible to show precisely what the 

outcome is going to be from disclosure of confidential information. 

The instance I mentioned yesterday involving serving a list of 

unindicted co-conspirators was one example. Another example is a 

piece of testimony that was given in the Ramzi Yousef case that 

was tried before my colleague, Judge Duffy, where somebody testified to somebody having delivered a cell phone battery to someone 

else. 

That piece of testimony disclosed to al Qaeda that a line of communication of theirs had been compromised, and, in fact, it was a 

line of communication that our Government was monitoring and 

from which it had gotten enormously valuable intelligence. That 

line of communication shut down within days of that testimony. 

And I do not know what we lost. Nobody knows what we lost. But 

we probably lost something enormously valuable. What I am saying 

is that it is an imponderable. 

Second, although Federal judges decide complex and technical 

issues, when it comes to weighing intelligence, that is beyond simply complexity. They do not have available to them not only the 

training but the resources that people involved in, for example, the 

Department of National Intelligence—the Director of National Intelligence has available to him to weigh issues like that. They rely 

on their experience, their law clerks, and what is submitted to 

them, and their own common sense. 

That is enough in the mine run of cases because the worst thing 

that could happen is they will make a mistake, it will go up on appeal, and as often happened to me, they will get reversed. The 

stakes are much higher when it comes to national security. And, 

often, even a showing of what the danger would be from the disclosure is itself as bad as the disclosure or worse. Then you get to the 

entirely separate question of who is a journalist and who is not. We 

talked about that a little bit yesterday. 

So for those reasons, I have got misgivings about it. I do not— 

the case that you described—there is an old saying that hard cases 

make bad law. The reverse may very well be true, also. Bad cases 

can make hard law. And I do not want this to be a situation where 

a bad case makes a hard law. 

Senator SPECTER. Mr. Chairman, just one final comment. I understand the problem you articulate, but I do not think that we can 

stop short and say that just an assertion by the Federal Government of national security ends the matter. That is just too much 

authority in too blanket a way. So I would ask that you help us 

search for a way to accommodate the concerns you express, but at 

the same time give a shield to a reporter unless there is some very 

good reason not to. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

166 

Before I go to Senator Feinstein, if I might, there is one thing 

that bothered me in your answer—well, a number of things that 

bothered me, but basically when I was asking about FISA and you 

were saying, well, the President to protect the country can—it 

sounded almost like you were saying he could ignore the law or 

could authorize others to, but yet you said in answer to Senator 

Specter, well, of course, the President would not be allowed to authorize torture because that is against the law. 

If you use the same reasoning, why couldn’t he say, ‘‘I am doing 

this, as a national security matter, to protect the country, so I am 

going to authorize torture’’ ? Why couldn’t he do that? 

Judge MUKASEY. Torture violates not only the law; it violates the 

Constitution. 

Chairman LEAHY. Well, so does a search and seizure without a 

warrant. I mean, the Constitution has pretty clear constitutional 

provisions on search and seizure. 

Judge MUKASEY. The Fourth Amendment says that we are all 

protected against unreasonable searches. It then goes on to speak 

about what would authorize the issuance of a warrant and what 

would not. They are— 

Chairman LEAHY. Probable cause supported by oath or affirmation, particularly describing—and so on. 

Judge MUKASEY. Right. Those are two separate clauses, and 

there is—we all, for example, go to the airport, and we are all 

searched without a warrant before we get on an airplane. 

Chairman LEAHY. We also consent to it. We have a choice of 

doing that or not getting on the plane. I am talking about when 

somebody goes into my e-mails, goes into my telephone, and it 

turns out thousands of times it was done for a period of several 

years until the press reported it. Then they came back and said, 

‘‘Gosh, I guess we ought to amend the law to allow this,’’ but they 

ignored a very specific law which said how you go about doing that. 

I mean, how can the President say, ‘‘Well, that is national security 

so I will authorize you to clearly violate a statute and authorize everybody from telephone companies on through, I will authorize you 

to clearly violate a statute—why couldn’t he do the same thing on 

torture? 

Judge MUKASEY. I think we have to distinguish very carefully between—I try to distinguish very carefully between monitoring a 

conversation, telephone content, and telephone records. Telephone 

records have never been protected by the Fourth Amendment because they are in the hands of a third party. If they weren’t, you 

couldn’t— 

Chairman LEAHY. Conversations are— 

Judge MUKASEY. Of course they are. You couldn’t argue with 

your telephone company over the bill. 

Chairman LEAHY. No, but the conversations are, and the conversations, people’s lives could be—if they are taken improperly, 

used improperly, their lives could be ruined. Their jobs could be 

lost and so on. I think we will come back to this, Judge, and we 

should think about this a little bit, because I do not think you can 

say when you have a very clear statute that the President can suddenly step above the law or authorize others to break the law, 

which is what it appears you are saying, and in other cases like 

167 

torture you cannot do it even though we find out now that they 

have broken the law, the torture law, supposedly having been told 

they could do it by the White House. 

Senator Feinstein? 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. My 

discussion, I hope you will take in its full form as a discussion on 

an important issue. 

This afternoon, Judge, the Intelligence Committee will be marking up a FISA bill. I can tell you it is a very big bill. At this stage 

it is a bipartisan bill. Yesterday the House bill fell apart on the 

floor of the House. I am absolutely convinced the only way we can 

legislate in this area is on a bipartisan basis, and much to the commendation of the Chairman and the Vice Chairman of the Intelligence Committee in the Senate, this bill so far is bipartisan. That 

is good news. 

My second point is the so-called Terrorist Surveillance Program 

could have been within the law from the very beginning. I have 

never understood why it was not within the law. The formulation 

of an 11-judge Foreign Intelligence Surveillance Court prepared to 

sit 24/7 is a very important thing in our Nation, and I think the 

big guarantee that we give our people is the guarantee of law to 

the greatest extent we possibly can, and that law is there. 

I took some time when I went on the Intelligence Committee 

some years back to read the Church Report that was put out after 

1978 and the passage of the FISA bill. And the Church Report outlines a major historic trend by this Nation in our 200-year history 

to essentially take foreign intelligence, exploit the loopholes, and 

use it for political intelligence gathering domestically. And there is 

example after example after examples, through a whole host of 

Democratic and Republican administrations, which points out, to 

me at least, the real need for a Foreign Intelligence Surveillance 

Act that we can say to the American people is the exclusive authority. 

Now, yesterday we began this discussion. Unfortunately, I did 

not have the time. Senator Feingold followed up, and let me quote 

you on these points: ‘‘...in the area between where that statutory 

authority left off and where his authority left off under the Constitution in Judge Bell’s view—and it is one I share—I think he 

would have’’—meaning the President—‘‘the authority to act. I think 

it is important’’—and you went into the Fourth Amendment then. 

‘‘But there is very scant, if any, case law on the question of whether intelligence gathering, as distinct from gathering of evidence for 

criminal cases, is something that may very well be much more 

flexible than matters relating to the gathering of intelligence.’’ 

In terms of evidence that is legislative intent, there is not scant 

evidence. There is very fulsome evidence, I believe, that every effort was made in 1978, and even since then, to provide that electronic surveillance be under law—the setting up of the court, the 

report language. 

You mentioned the AUMF today. I do not believe in terms of the 

legislative history of the AUMF—and I was part of or sat through 

some of these discussions—there was any intent to allow the President to wiretap outside of the law. It was never discussed. It never 

came up. The full focus was whether to confine this to Iraq or more 

168 

broadly. And I think I sent last night part—page 101 of the report 

on the FISA bill, and I want to read a couple of sections to you and 

then ask you to comment in view of what I have just said. 

‘‘When a President takes measures incompatible with the express 

or implied will of the Congress, his power’’—and we know this— 

‘‘is at the lowest ebb, for then he can rely only on his own constitutional power minus any constitutional power of Congress. Courts 

can sustain exclusive Presidential control in such cases only by disabling the Congress for acting upon the subject.’’ 

It then goes on that, ‘‘Despite any inherent power of the President to authorize warrantless electronic surveillances, in the absence of legislation, by this bill and Chapter 119 of Title 18, Congress will have legislated with regard to electronic surveillance in 

the United States. That legislation with its procedures and safeguards’’—FISA Court, 11 judges, 24/7—‘‘prohibit the President, notwithstanding any inherent powers, from violating the terms of that 

legislation.’’ 

Then the report language goes on to describe how the bill essentially repealed those provisions which state that nothing in those 

relevant chapters shall limit the constitutional power of the President. They repealed that section, expressly repealed it. 

And then they go on to say, ‘‘In short, Congress simply left Presidential powers where it found them. The Foreign Intelligence Surveillance Act, however, does not simply leave Presidential powers 

where it finds them. To the contrary, this bill would substitute a 

clear legislative authorization pursuant to statutory not constitutional standards. Thus, it is appropriate to repeal this section 

which otherwise would suggest that perhaps the statutory standard 

was not the exclusive authorization for the surveillance included 

therein.’’ 

See, I do not think the President, based on the legislative history, has—unless there is something that expressly grants it to 

him. The AUMF did not expressly grant nor was it discussed, nor, 

I believe, was it contemplated that he would use that as authority 

to go outside of FISA. And, again, I conclude with this: He did not 

have to go outside of FISA. Subsequently, that became clear and 

the program is within FISA now. 

So what bothers me is that you yesterday sustained that gap 

where I believe that gap has been closed, and hopefully will be further closed by what we do in an intelligence bill, which will then, 

after Intelligence, come to this Committee. Could you respond? 

Judge MUKASEY. All I can say is I share your hope, and I share 

the view that if the President can act within FISA, then that is 

where he has to act. I think based on the history that you read, 

the only—and I do not want to look for areas of disagreement. I 

was told not to look for areas of disagreement. 

Senator FEINSTEIN. Well, I think this is a conversation worthwhile having, so you go ahead. 

Judge MUKASEY. OK. The only place where we might conceivably 

have a disagreement—and I am not certain we do there either— 

is in the view that, notwithstanding the Congress saying specifically we are restricting the President’s—what might otherwise be 

the President’s authority under the Constitution, that that can actually restrict the President’s authority under the Constitution. 

169 

Whether a past Congress said we acknowledge the President’s— 

that the President might have authority that lies beyond the statute, to repeal that cannot change the constitutional reality. If, however, it was always possible for the President to act within FISA, 

then there is no need for that authority. 

And, for example, under FISA as it stands now, as I understand 

it, there are procedures that are approved by the Foreign Intelligence Surveillance Court that the President is then free to use 

without each time having to go for a separate warrant because that 

is simply unfeasible, regardless of how many judges we have got. 

And that is obviously the way to go. That is the way I want to go. 

Senator FEINSTEIN. Exactly. My point is this: the administration 

did not try to do that, before the heat got very hot and then they 

went and did it. And that is the reason why FISA really should be 

the exclusive authority for this kind of public action, because it is 

all hidden action. And, therefore, the Fourth Amendment does 

come into play, I think, too. So perhaps, you know, the best I can 

say for your argument—and it is wonderful for me because I am 

not a lawyer so I can say that—is that you have two budding 

amendments, perhaps. But when you listed the AUMF, I think the 

history counters the AUMF. That is all I wanted to make. Thank 

you. 

Thank you, Mr. Chairman. 

Chairman LEAHY. The AUMF is the weakest reed this White 

House could ever hold onto, and it does not stand up. I think the 

fact that they are bringing so much pressure on the Intelligence 

Committee—and if the press is to be believed, the Intelligence 

Committee is about to cave on this—and bringing pressure on this 

Committee to immunize past illegal conduct, it is because they 

know that it was illegal conduct, and that there is no saving grace 

for the President to say, well, I was acting with authority. Otherwise, there would not be so much pressure on us to immunize illegal conduct by either people acting within our Government or within the private industry. 

Senator Kyl was here yesterday, and as it grew late in the day, 

he was willing to wait until today, and I appreciate that very 

much, Senator, because we were then able to wrap up, and I yield 

to you. 

Senator KYL. Thank you very much, Mr. Chairman. With all due 

respect, let me suggest there is another way to read the President’s 

strong interest in trying to get a good FISA reauthorization, a 

much more benign reason, that he believes that it is important to 

our national security that we be able to secure this intelligence information against terrorists, and with regard to the retroactive liability, that there could be a very chilling effect on the ability of 

telephone companies or others to cooperate with the Government if 

we do not protect them from potential suit. It does not have to be 

that the administration knew that its activities were illegal and, 

therefore, it has been working with us hard to get this legislation 

passed. In fact, I think that is a most uncharitable and incorrect 

assessment of the situation. 

I would like to agree with Senator Specter just a moment with 

regard to his comments about Steve Bradbury. I think Senator 

Specter said it well, and I just note those to you, Judge Mukasey. 

170 

Also, with regard to the question of the reporter’s shield law, you 

took a question on this yesterday and commented on what Senator 

Specter said. I would like to correct the record just with respect to 

one thing Senator Specter said, but agree with him that it will be 

important for us to be able to work with you, and I will ask you 

that question in just a moment. 

But from the Department of Justice’s own report, the numbers 

demonstrate a decrease in the number of cases in which the Department has approved the issuance of subpoenas seeking confidential source information in recent years. Of the 19 source-related 

matters since 1991, only four have been approved since 2001. So 

this is hardly a situation in which, as was said, there are many 

cases where reporters have gone to jail. There are almost none. 

Very, very few. And the Department of Justice has clearly been 

very discreet in the kind of source-related matters that it has been 

seeking in recent years. 

We have all been seeking to reach that point that Senator Specter alluded to, the accommodation of national security interests, 

prosecution of criminal matters, as well as the free flow of information. And my question to you is: Since the legislation has come 

under the Judiciary Committee but with an agreement among us 

that we will continue to work on it, it would be very important to 

have your insights as well, and obviously the question is—you have 

already answered it to Senator Specter, but to reiterate your willingness to work with us as that legislation proceeds so that we can 

try to accommodate all of these interests in the most efficacious 

way. 

Judge MUKASEY. I agree, and I think it bears some mention in 

connection with this subject that there are within the Department 

very elaborate procedures before anyone is permitted to subpoena 

a reporter. Some AUSA with a subpoena and a typewriter does not 

decide whether to subpoena a reporter. There are many levels of 

approval that have to be gotten—in Main Justice, not just in the 

Assistant’s own office—before a subpoena can issue to a reporter. 

And it was my own view—and I do not know, obviously, all of the 

cases—that the system worked passably well up until now. 

But one thing about internal procedures is that if you need to 

change them, they are relatively easy to change. You can adjust the 

regulation. You can adjust the procedure. You can put more levels 

in. You can change standards. It is relatively easy to do. 

It becomes much harder when it is etched in stone in the form 

of legislation, and that is part of the reason for my uneasiness. 

Senator KYL. I appreciate that. You know, Mr. Chairman, yesterday when Senator Lieberman introduced Judge Mukasey, he talked 

about a Contracts professor that loved to grill them on the law. I 

suspect that Judge Mukasey might have viewed the questioning by 

our colleagues as somewhat akin to that, and I think you have 

come through it with flying colors. 

I thought it would be interesting to just get back to the Department of Justice mission statement. We have been fairly far afield 

with a lot of different things here, and I found it interesting to review it, that your job, if you are Attorney General, is to enforce the 

law and defend the interests of the United States according to the 

law; ensure the public safety against threats, foreign and domestic; 

171 

provide Federal leadership in preventing and controlling crime; to 

seek just punishment for those guilty of unlawful behavior; and to 

ensure fair and impartial administration of justice for all Americans. And that is a mission statement I think we can all agree 

with. 

And in thinking about that mission statement—in other words, 

exactly what your job is and what you would be doing during the 

next year that we would be interested in with respect to our oversight—I found it interesting that the people who have worked with 

you in those various areas—enforcing the law, providing leadership 

and preventing and controlling crime, seeking just punishment and 

so on—have been impressed with the way that you have executed 

your responsibilities, suggesting that in your position as Attorney 

General of the United States you would carry that same experience 

to the fulfillment of your responsibilities. 

Perhaps it has been read into the record already, but it bears repeating perhaps. Mary Jo White, the U.S. Attorney for the Southern District of New York from 1993 to 2002, commented that during the Sheik Rahman trial, you had 10 defendants on trial, controlled the courtroom very tightly. She said, ‘‘He has dealt with 

some of the most complicated, novel issues that any judge will ever 

see. That is who he is—tough-minded, clear-eyed person. DOJ is 

very lucky to get him.’’ And, of course, there have been so many 

other comments from others that have worked with you. 

I just thought it important to note that with respect to your actual responsibilities as opposed to some of the things that have 

been discussed in this hearing, your reputation fits in very tightly, 

it seems to me, with your responsibilities as Attorney General. And 

I am pleased that you have had that kind of support from the people with whom you have worked. 

I have discussed these things with you personally. I have listened to your testimony here, and it seems to me that you are extraordinarily well suited for this position, pretty much as well as 

anybody who has not served in the position before could be. 

And I just wanted to close by asking if you have any insights for 

us with respect to how you view your job. You have got roughly a 

year left, and the last year of an administration. There has been 

some tumult in the Department. There have been huge challenges 

coming from this threat of terrorism, in addition to all of the usual 

things the Department of Justice has to deal with, but to bring 

your experience to bear on it and basically speak directly to the 

American people about how you can take that experience and represent them in the Department of Justice as the chief law enforcement official of the country. 

Judge MUKASEY. What you have described is a job that would 

humble somebody with twice my ability. The one great consolation 

that I have is, to go back to my opening statement, the people in 

the Department are the people who carry that responsibility. My 

job is to make sure that they have as few problems as possible and 

let them do their jobs. And they are enormously talented, dedicated 

people. I mentioned running into people on the coffee line. Two of 

those people were 30-year veterans of the Department. Thirty 

years. And there are thousands of them. That is what allows me 

to sleep at night when I say yes to wanting to do this job, because 

172 

I am going to have available to me the kinds of people who are 

there. 

Yes, it is an awesome responsibility, but look at the people I have 

helping me or will have helping me if I am confirmed. 

Senator KYL. I appreciate that. Thank you. 

Mr. Chairman, by the way, both relative to Senator Specter’s 

comments and mine, I would like unanimous consent to insert in 

the record at this point a Washingtonpost.com piece dated Friday, 

October 12th, titled ‘‘In Defense of the Office of Legal Counsel.’’ 

Chairman LEAHY. Without objection, it is so ordered. 

Senator Feingold? 

Senator FEINGOLD. Thank you, Mr. Chairman. Judge, good morning. 

Judge MUKASEY. Good morning. 

Senator FEINGOLD. I know there has been a great deal of discussion this morning, which actually followed our conversation yesterday, about the effect of the FISA law and whether the President 

has the authority to violate that law. And I would just like to associate myself with Senator Feinstein’s excellent description of congressional intent when passing FISA. And I must say that your answer to her appeared to be directly contrary to the Youngstown approach to Executive power, which you and I discussed in detail yesterday, and you appeared to accept as important and valid law. 

The Supreme Court has held that Executive power is affected 

very significantly by what Congress does, so it sounds like overnight you have gone from being agnostic, as you and I have gone 

back and forth since our first meeting on this question, to holding 

what is a rather disturbing view. You have said today that you believe the President may violate a statute if he is acting within his 

Article II authority. Now, that position, which I find alarming, 

makes it extremely important to know what you believe the exact 

scope of the President’s Article II authority to be. 

So are you telling the Committee, Judge, that anytime the President is acting to safeguard the national security against a terrorist 

threat, he does not have to comply with statutes? 

Judge MUKASEY. You have suggested that I have gone overnight 

from being an agnostic to being a heretic. And— 

Senator FEINGOLD. Explain why you have not. 

Judge MUKASEY. I think all I am saying is that, obviously, I recognize the force of Justice Jackson’s three-step approach, but I recognize also that each branch has its own sphere of authority that 

is exclusive to it. 

For example, just to take an example that has nothing to do with 

the subject under discussion immediately, you have the exclusive 

authority to vote me up or vote me down, for any reason or no reason. If I am displeased with the result and displeased with the reason, I could not validly go down the street to the courthouse and 

file a lawsuit and claim that I had been denied a right, even I got 

some judge who was willing to entertain the lawsuit and even if 

I prevailed. There are a lot of ways you could describe that outcome, but the rule of law is not one of them, because the authority 

belongs only to you. 

There are areas of Presidential authority. I also said that we are 

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stand that, which is why it is very important that push not come 

to shove on these questions because the result can be not simply 

discord but disaster. 

Senator FEINGOLD. Well, Judge, I will take your example. In the 

case of the Youngstown case, people did have the right to go down 

to a courtroom, and they did it, and they won. And Justice Jackson 

indicated a three-part test, which your analysis today I think renders essentially meaningless. So I believe that this is contradictory, 

and it does trouble me. And I have great respect for you. And I do 

believe, as Senator Schumer indicated yesterday, you have a similar opportunity to change the tenor of this administration in a way 

that Levi did in a prior era of this country. 

Let me just say with all respect that this area is perhaps the 

most important one where the repairing has to be done, getting 

away from this notion of ever expanding, infinite Article II power. 

And I would ask you to take that very seriously. 

Let me switch to a different topic. As you know, the decision 

whether to seek the Federal death penalty in any given case rests 

with the Attorney General alone. Attorney General Gonzales has 

been criticized for not being personally involved in that decisionmaking process. In one case, he apparently refused to speak personally with a U.S. Attorney about a case in which he ordered that 

the death penalty be sought over the U.S. Attorney’s objections, 

and then he told this Committee that this was one of the reasons 

that that particular U.S. Attorney was fired. 

How personally involved would you be in decisions about whether to seek the Federal death penalty? 

Judge MUKASEY. I am going to be personally involved, and I am 

going to review every such decision. I took sentencing seriously 

when I was a judge. I never had occasion to pass a death sentence, 

although I did preside over cases where that was at least a possibility at various points in the case. 

There is obviously no penalty that is analogous to the death penalty. There are other penalties, and there is that one. And that 

means that I am going to review every such case in excruciating 

detail. 

We have a system in place, as I understand it, that was put 

there I believe under Attorney General Janet Reno in which we 

have tried—I am already saying ‘‘we,’’ and that is presumptuous— 

in which the Department has tried to assure that the decision 

about whether to seek the death penalty or not seek the death penalty depends only on the underlying facts of the case, the history 

of the defendant, the acts involved, the seriousness of—obviously 

the seriousness is always ultimate, but the cruelty that accompanies a murder, and other indicia. 

Senator FEINGOLD. Will you refuse to speak personally with a 

U.S. Attorney who disagrees with your decision and wants to discuss it with you? 

Judge MUKASEY. That is a difficult question for the following reason: If there is a defendant in a jurisdiction where the United 

States Attorney wants to speak to me, then it may very well be 

that that defendant’s crime is no better, that his background is no 

better than the background of a defendant in a jurisdiction where 

the United States Attorney, because in that jurisdiction they are 

174 

more accustomed to or inured to or favorable to the death penalty, 

the United States Attorney does not feel he wants to intervene. The 

system was supposed to treat—the system that was created in the 

Department is supposed to treat those two people the same way. 

Senator FEINGOLD. Well, why wouldn’t you speak to the U.S. Attorney about this? You didn’t specifically say that, but that was my 

question. Would you agree to at least discuss it with him? 

Judge MUKASEY. I would want to have that United States Attorney’s views made known to me. I do not want to be in a situation 

of succumbing, if you want to call it that, to a plea by a United 

States Attorney who does not want for good and conscientious reasons—and there are people who have good and conscientious reasons, and I recognize that—does not want to seek when the same 

case may be getting different treatment in another jurisdiction. 

Senator FEINGOLD. Should the additional cost of pursuing the 

death penalty rather than a life sentence be a consideration? 

Judge MUKASEY. There is a whole range of considerations. That 

is, I guess, one of them, but I— 

Senator FEINGOLD. All right. Let me move to another topic because I am running out—unless you feel you need to elaborate 

there. 

Judge MUKASEY. No, I just do not want to create an incentive 

for—obviously, the most costly you make it, then the more the 

equation— 

Senator FEINGOLD. Fair enough. Fair enough. Judge, as is the 

case in every Federal agency of all three branches of Government, 

there are gay, lesbian, bisexual, and transgendered Americans 

serving honorably and effectively at the Department of Justice, and 

the Department sponsors commemorative events to recognize the 

contributions of various minority groups. But under Attorneys General Ashcroft and Gonzales, in contrast to Attorney General Reno, 

it has refused to do so for GLBT Americans. In addition, while DOJ 

Pride, an organization of GLBT employees, is permitted to use Department space to hold events, it is prohibited from advertising 

those events on public billboards in Department buildings, again, 

unlike other organizations for minority employees at the Department. 

Similarly, the Department refuses to recruit at job fairs aimed at 

GLBT attorneys, but sends recruiters to job fairs aimed at other 

minority groups. 

I am troubled by this. I suppose there is not much to be done 

about this administration’s attitude toward gays and lesbians, but 

as Attorney General, you would have the power to end this shameful conduct. Will you stop the disparate treatment of gay and lesbian employees at DOJ? 

Judge MUKASEY. I do not understand the reason for that treatment. When I was a district judge, I interviewed and hired without 

regard to any matter relating to the personal life of a prospective 

law clerk, any matter of that kind, and I see no reason why there 

should be any different standard at the Department. 

Senator FEINGOLD. I will take that as saying that you will stop 

the disparate treatment of gay and lesbian employees at DOJ. 

Judge MUKASEY. It sounds like I am going to. 

Senator FEINGOLD. Pardon me? 

175 

Judge MUKASEY. It sounds like I am going to. 

Senator FEINGOLD. Sounds good to me. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Normally we would go to Senator Grassley next, but Senator 

Grassley has advised us that Senator Coburn, like most of us, has 

about five different places to be and is willing to yield his place 

now to Senator Coburn. So we will go to Senator Coburn, and the 

next Republican in line will be Senator Grassley. 

Senator COBURN. Thank you, Mr. Chairman, and thank you, Senator Grassley, for your consideration. 

Mr. Mukasey, Judge Mukasey, here is your quote: ‘‘The Department faces challenges vastly different from those it faced when I 

was Assistant U.S. Attorney 35 years ago, but the principles that 

guide the Department remain the same: to pursue justice by enforcing the law with unswerving fidelity to the Constitution.’’ 

You have answered throughout yesterday many questions in regard to that. I was one U.S. Senator who thought that the previous 

Attorney General should resign, not for the similar reasons that 

many of my colleagues did, but because of the management that I 

saw at the Department of Justice. 

What will you do to ensure that this quote and this axiom of loyalty to the Constitution before loyalty to any political appointment 

is carried out through the depths of the Justice Department? 

Judge MUKASEY. Well, Dr. Coburn, I believe in a couple things. 

One is you lead by example. You do things that you want other 

people to do, and you do not ask people to do things you do not 

want to do yourself. That is one way. 

Another is to make certain that if there is any suggestion that 

there is any problem that would compromise a constitutional 

standard, is to get in it up to my elbows, or further, if necessary, 

and to stop it. I have pursued up until now hands-on management 

to the extent I have managed at all. And I recognize that I do not 

have a business degree and I have never managed anything like a 

100,000-person agency with a $22 billion budget. Never done it. 

But I have had a hands-on management style, and I want to continue that. I want to consult with people not only in the immediate 

leadership but people from below that so that I understand what 

it is that is really going on and so that I am not caught by surprise. 

I do not like surprises. 

That is the way, I think, to make sure that the standards I try 

to articulate are maintained, and that is what I hope and plan to 

do if I am confirmed. 

Senator COBURN. Thank you. 

The Justice Department is unique in the Federal Government in 

that it is the only agency that is allowed a percentage of its unexpended balances at the end of the year to use discretion to enhance 

what they do, both in terms of IT and things. We allow the Justice 

Department to do that. We do not allow any other agency to do 

that. 

We recently passed a limitation on conferences in the Senate 

with specifics to certain groups that were unindicted co-conspirators and others, and real concern about the amount of money the 

176 

Justice Department spends on conferences. I realize there have to 

be conferences. 

Can we have a commitment from you that you will approve the 

budget for conferences and that, in fact, that conferences will be exactly what is needed and not more, and not more frequent, and a 

real conservative action at looking at your fiduciary responsibility 

in terms of the budget of the Department to make sure that the 

dollars spent there are not wasted? 

Judge MUKASEY. I emphatically agree with that. I did not attend 

many conferences when I was a judge. I attended the Judicial Conference because I was required by statute to do so. I am not a big 

fan of publicly funded get-togethers for the sake of getting together. 

Senator COBURN. OK. My final question, and then I will refer 

back and will not use all my time. I am concerned about morale 

in the Justice Department. There is no question some management 

decisions have affected that. We have impacted that by the controversies that, either real or otherwise, have put before it. 

What is your plan in this limited amount of time that you have 

to create a vision and a leadership plan that will bring the morale 

and the esprit de corps and the positive thinking back to the Justice Department? 

Judge MUKASEY. I agree that perceptions about morale are going 

to be part of the landscape that I am going to face at the Justice 

Department. But I do not want by my words or my actions to create a self-fulfilling prophecy in which talk about bad morale creates 

bad morale. 

I think what contributed to and what accounted for the esprit de 

corps in the office that I served in 35 years ago was that we were 

doing exciting, worthwhile work that had no standard other than 

what served the public interest, and that excited and energized 

people and contributed to great esprit de corps. 

I want to help people to do that. I want to fill positions. I want 

to make it possible for people to do their jobs. That is what accounted for the esprit de corps in the office that I was in, and I 

think that is what promotes it in the Department. 

Senator COBURN. Thank you. I want to thank you for your commitment to take on this task for a very short period of time, and 

to just compliment you for being willing to sacrifice. You do not 

have to do this. You could do other things. And I think it is admirable, and it is one of the qualities of Americans that they will 

serve knowing that the positive benefits for you personally are not 

going to be great. Thank you. 

Thank you and I yield back. 

Senator FEINSTEIN. [Presiding.] Senator Schumer? 

Senator SCHUMER. Thank you, Madam Chairperson, and thank 

you again, Judge Mukasey. 

Now, I know you care as much as anyone about rooting out public corruption. In fact, I note that when you were at the U.S. Attorney’s Office, you ultimately headed up the Official Corruption Unit 

for a few years. Both you and I know that sometimes the mechanism for pursuing public corruption can itself become corrupted. 

And you and I both know that when political considerations get enmeshed in political cases, the public suffers and justice suffers. You 

have already given comforting answers about some things you 

177 

would do in the future about making sure political actors and elected officials do not themselves corrupt investigations of corruption. 

So I want to ask you a few more questions along those lines. 

First, how would you react if it came to your attention that the 

White House Director of Political Affairs or a similar official had 

pushed the United States Attorney to pursue a case against a 

Democratic official? 

Judge MUKASEY. How would I react? 

Senator SCHUMER. Yes. 

Judge MUKASEY. I think a euphemistic description would be negatively. 

Senator SCHUMER. OK. I will be specific here. Would you confront the White House official? 

Judge MUKASEY. I would first have a conversation with the 

United States Attorney involved and find out what it was that had 

been said or not said and what pressure had been brought or not 

brought. And if I thought that pressure was being brought, I would 

have a conversation with the White House official, and if necessary, 

with the President. 

Senator SCHUMER. Right. Well, that was my next question. 

Would you inform the President of the behavior? And you have answered that. What would you do to rectify the situation? 

Judge MUKASEY. I would make absolutely certain that whatever 

the effect was of the pressure was undone, and how to do that obviously is going to vary on a case-by-case basis. But one way might 

very be to take over that investigation with someone from Main 

Justice who was not subject to that pressure. But that is a hypothetical. I recognize that and I do not want to—I would rather confront—I would rather not confront the issue. But if I have to confront it, I would rather confront the facts and not just a hypothetical. 

Senator SCHUMER. Sure. Understood. Well, let me go to a specific 

fact case, because there are troubling allegations from several 

quarters that such behavior did actually occur in the past. And so 

I want to talk not only prospectively but retroactively, retrospectively. 

In Alabama, there was a recent prosecution of a former Democratic Governor named Don Siegelman. Although he was ultimately 

convicted of several counts, there are serious allegations that his 

case was politically motivated and selectively prosecuted. A Republican lawyer from Alabama, Jill Simpson, has apparently sworn 

under oath that an Alabama political figure told her that Karl Rove 

pushed the Justice Department to bring political corruption 

charges against Mr. Siegelman. She also testified that the son of 

Alabama’s current Governor told her that a Republican judge 

would ‘‘hang Don Siegelman.’’ 

It has also been suggested that when the case against Mr. 

Siegelman was faltering, this political pressure caused people at 

the Department to demand prosecutors ‘‘take another look at everything.’’ And there are other troubling allegations that are a matter 

of public record. 

Given what we have seen in the Justice Department, again, no 

smoking gun but a series of these types of issues—I have read 

about this. I do not know the specific facts, but it greatly troubles 

178 

me. It greatly troubles me that perhaps, perhaps, perhaps, this 

case was politically brought. My chief counsel, who was a prosecutor in the U.S. Attorney’s Office, the same one you served in, 

said, ‘‘Well, he was convicted.’’ But that does not really answer the 

question per se. 

So I am not accusing anyone of anything, and I do not know all 

the facts, but I would like you to learn the facts and report back. 

And so I am asking you—you know, you have demonstrated you 

are a no-nonsense public servant. As good as your intentions are, 

we cannot have a proper housecleaning without resolving lingering 

issues and doubts. 

In the spirit of making a fresh start and restoring public confidence that politics has been removed from the Department, I 

would ask you to personally look into the Siegelman matter and 

just report back to us what you find. Would you be willing to do 

that? 

Judge MUKASEY. Well, I do not know what stage the Siegelman 

case is at. 

Senator SCHUMER. He is convicted. He is in prison. 

Judge MUKASEY. I understand that. Is the case on appeal? 

Senator SCHUMER. I do not believe it is—yes, it still may be. But 

as you know, under Federal rules he is serving time in prison right 

now. 

Judge MUKASEY. I understand that, but I think that it may very 

well be that the first cut at the facts that you have described and 

suggested ought to be had by the court. And it is not unheard of 

for there to be a motion in an appellate court to remand when facts 

come to the attention of lawyers after a case is tried that warrant 

hearing by the court that tried it. 

Senator SCHUMER. Not to interrupt you, I do not know the details of this, but I think that many of these facts came out after 

the trial and conviction at the district level and might not be admissible before the court of appeals. 

Judge MUKASEY. What I am suggesting is maybe there ought to 

be a remand or a request for a remand. The reason I am hesitant 

to say, well, I am going to get into it and do something is that 

when a case is in the process, as this one is, I— 

Senator SCHUMER. Let me rephrase the question. Would you take 

a look at it? If there is a possibility and the case is ongoing because 

of appeal, would you be willing, if after the appeal is completed, 

particularly if there is no remand, or it is not admissible, these new 

facts are not admissible, determined by that court, would you be 

willing to take a look at this? 

Judge MUKASEY. I would certainly be willing to take a look at 

it. 

Senator SCHUMER. OK. Thank you. 

I have a brief amount of time left. I just have a couple of questions here about, again, disproportionate prosecution of Democrats. 

I am going to be quick here because my time is running out. 

Donald Shields from the University of Missouri and John Cragan 

from Illinois State University did a study of prosecutions. Again, 

we see this in the backdrop of what we have seen over the last few 

months and what we have learned through the Chairman’s leadership on this investigation. The two professors of communication 

179 

compiled a data base of 375 investigations and indictments of candidates and elected officials by U.S. Attorneys. The preliminary 

findings suggest that Democratic office holders and office seekers 

are investigated 7 times as often as Republican ones. Obviously, 

there may be the situation where there was 7 times as much corruption brought to the attention of the U.S. Attorney among Democrats, but if you believe bad people are sort of sprinkled throughout 

the political system rather evenly, that is not one that goes down 

easy or well. 

I would ask you to take a personal look at the study, see what 

you think, and if you thought it had some merit, undertake a study 

of your own to determine whether there is not improper or uneven 

treatment going on. 

Judge MUKASEY. I will take a look at the study, and I also can 

tell you I believe that neither party has a monopoly on either virtue or vice. 

Senator SCHUMER. I would be interested, should you become Attorney General—and as you know, I hope you will be—that you report back to us in some way or another your view of that study. 

My time has expired. 

Chairman LEAHY. [Presiding.] Senator Grassley? 

Senator GRASSLEY. Thank you for the opportunity— 

Chairman LEAHY. Incidentally, and restart the clock, just so people will know the schedule. We will go until 12:30, and if all questions have not been asked, we will recess until 2 and then come 

back, just so that—is that satisfactory? 

Senator SPECTER. Yes, Mr. Chairman, I think that is a good idea. 

As I had commented to you earlier, there are a number of subjects 

and a great many matters pending before the Committee legislatively and on the executive privilege where we have subpoenas outstanding, and Judge Mukasey has been very cooperative and very 

helpful and very forthcoming, and I think that he is responding to 

our questions. But it is not a fast process, and they involve very 

complex subjects, and we have to take the time necessary, and it 

is longer than we like to keep you here, quite frankly, and it is 

longer than we like to stay here, quite frankly. 

As you see from the rotation around here, everybody has got— 

Senator Coburn, it was announced you had to be in only five places 

at one time. I am managing an appropriation bill that is supposed 

to be on the floor, but we will have to just rotate back and forth 

and cover these subjects, which, as I say, are important. 

Thank you for your cooperation, judge, and thank you, Mr. 

Chairman. 

Chairman LEAHY. Senator Grassley, thank you. We will set the 

clock back. 

Senator GRASSLEY. Thank you. 

Judge, I have one question about whistleblowers before I go back 

to where we left off yesterday, and we left off about that non-disclosure form. But why I emphasize, as I hope I told you in the privacy 

of our office, the need to worry about whistleblowers is because— 

you probably know this, but if you do not, you will soon find it 

out—there is a great deal of peer pressure to go along to get along 

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180 

ment. Whistleblowers tend to be skunks at a picnic and are treated 

the same way. We have laws that protect them, and I want to 

make sure that at least within your jurisdiction you do what you 

can. 

So what initial actions would you personally take to abate any 

fears of retaliation against individuals who are critical of procedures, practices, or policies that do not guarantee or execute the 

primary mission or goals of the FBI within the Justice Department 

or the entire Justice Department? 

Judge MUKASEY. I think I will tell people specifically and I will 

tell them in action that I am receptive to and supportive of anyone 

who can disclose any impropriety, whether it is in the way rules 

are applied or in the rules themselves, and who can help the Government stop impropriety and stop waste, and making that explicit 

and then acting on it I think are the only two ways to do it. 

Senator GRASSLEY. I think you are very sincere, but let me tell 

you, one time I said to the President, you know, this President, 

that you ought to have a Rose Garden ceremony honoring whistleblowers, because for the most part they are patriotic people and 

just want Government to do what Government is supposed to do 

and point out things that are wrong. And I got some sort of a comment back about if he did that, every nut would come out of the 

woodwork, you know. 

So with that sort of an attitude at the highest level of Government, you know, it is very important that people a little lower 

down, as you are—not very low down but somewhat lower—make 

sure that the spirit of the law is carried out as well as the law. 

Where I left off last week, I have learned that the FBI and the 

Justice Department Office of Inspector General have been using an 

overly broad non-disclosure form during administrative inquiries. 

This issue came to light recently in the course of the OIG’s investigation into the FBI’s misuse of National Security Letters. This 

form broadly states that no information may be, quote-unquote, released in any form to anyone, and indicates that if any portion of 

the information is released, quote-unquote, beyond this room then 

further investigation could result. 

This is not a threat to be taken lightly coming from the FBI particularly, but also from the Justice Department OIG. While nondisclosure agreements may be a necessary and important part of an 

internal investigation, executive branch employees must remain 

free to provide information to Congress. Section 820 of the Appropriations Act for the Department of Justice prohibits any non-disclosure policy form or agreement that does not contain specific disclaimers, ensuring that Congress is not cutoff from crucial information. 

I would like to have a copy of that statement put in the record, 

that non-disclosure statement put in the record at this point, Mr. 

Chairman. 

As you can see, it is plain that the form does not contain the disclaimers required under Section 820. As you know, the Justice Department’s budget was authorized for fiscal year 2007 under a continuing resolution, so Section 820 remains in effect. But according 

to the Inspector General, the FBI has been routinely using this 

broad non-disclosure form during administrative hearings. 

181 

One, if you are confirmed as Attorney General, will you conduct 

a review of non-disclosure agreements used by the Justice Department and subordinate agencies and ensure their compliance with 

820 of the Appropriations Act of the Department of Justice as well 

as other Appropriations Acts in the future that might have similar 

provisions? And I guess it would seem to me that without this disclaimer, it is kind of a thumbing-the-nose attitude toward the Congress, I mean, like there is no respect for the law we pass. 

Judge MUKASEY. Senator, part of the concern for the integrity of 

national security that I have had occasion to express this morning 

because I have been asked about it, the only way we respect legitimate claims about national security is if we do not promiscuously 

attach the phrase ‘‘national security’’ to anything that we would 

rather not discuss, that we would rather not have other people discuss. And so I think we have to be very careful in rationalizing 

non-disclosure obligations based on a claim, oh, this is national security. 

I also obviously believe, as I have said, that the oversight authority of this Committee is enormously important in helping the Department fulfill its role. 

So for those two reasons, I would be very, very critical of nondisclosure agreements and make sure that they are used only when 

it is necessary for them to be used and not simply as an everyday 

way of doing business. 

Senator GRASSLEY. Well, I should accept your answer. It seems 

to me, though, that that information about Section 820 ought to be 

broadly reminded of everybody as part of a document. 

Let’s go to the Office of Inspector General. As I have said so 

many times, oversight is very important. You cannot do it in Congress if we do not get some help. We obviously need in this regard 

strong Inspectors General to provide another independent assessment of operations within the executive branch. 

One, do you agree that independence is the hallmark of the Inspectors General’s integrity and effectiveness? 

Judge MUKASEY. I do. 

Senator GRASSLEY. Please explain what kind of relationship you 

would intend to have with the Justice Department Inspector General Glenn Fine, assuming he stays on in that position, or whoever 

might succeed him, and describe what steps you will take to ensure 

that his office will function as an aggressive and independent check 

on the Department and its components. And I speak here particularly of the FBI, and I will get into something in just a minute on 

that, but not just the FBI. 

Judge MUKASEY. I hope to have a cordial and effective relationship with him, as I would with any other officer in the Department. 

And he is a person—he in particular is a person of great experience. He has been at this for a long time. And his views get a lot 

of respect, and they are entitled to a lot of respect, and they are 

going to get a lot of respect from me. 

Senator GRASSLEY. Earlier this year, the Office of Inspector General released an important report on the FBI’s misuse of so-called 

exigent letters and National Security Letters. Some of the findings 

suggested that more inquiry was necessary in determining whether 

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taining false statements or improperly characterizing requests as 

emergencies to obtain records without legal process. 

At first, the OIG was going to merely allow the FBI to investigate itself. However, after this Committee had a hearing, the OIG 

decided to conduct further investigation jointly with the FBI Inspection Division. While this is better than having no role for the 

Inspector General, it seems that allowing the FBI to actively participate in an investigation of its own potential wrongdoing could 

undermine the credibility and public confidence in the final product 

by providing an opportunity for the FBI insiders to tamper with 

the investigation. 

One, do you believe conducting joint investigations with the entity under investigation is consistent with the principle of Inspector 

General independence? 

Judge MUKASEY. I agree that having an agency investigate itself 

is generally not the optimum way to proceed. The one fact, as I understand it, that gives me pause here is that I believe that one of 

the preliminary conclusions—that among the preliminary conclusions reached by the Inspector General in his first report—and I 

understand this matter is still under investigation. 

But a preliminary conclusion was that there were no controls in 

place, there was no monitoring in place, and that that was in part 

what led to the abuse, where a form that originated in one place 

where there were grand juries sitting was then sent around and 

nobody bothered to read the form, they used it, and told people 

that they were to produce information for use you a grand jury 

when there was no grand jury, which is inexcusable, I agree; but 

that what happened was that when they saw that report, the FBI 

did, as I understand it, put controls in place and monitoring in 

place, and I think that given that that has been the response, that 

we ought to at least give those controls and that monitoring an opportunity to operate. And so their participation in the ongoing investigation is not perhaps as inappropriate as it might at first 

seem. 

Senator GRASSLEY. OK. Well, I hope you are right, but I hope 

also you will try to do as much as you can in having the Inspector 

General just by himself do that work. 

Mr. Chairman, I do not think I will be back for a third round, 

and I will submit some questions on agricultural antitrust and 

things of that nature that I would appreciate some answers for. 

Thank you. 

Judge MUKASEY. Thank you very much. 

Chairman LEAHY. Thank you. We’re going to go to Senator Durbin in just a moment. Before we do, just while Senator Grassley 

is still here, followup on the Inspector General. 

Right now, this is something totally unprecedented. I happen to 

support what he’s doing. The Inspector General is reviewing the 

sworn testimony of your predecessor, because questions were raised 

by members of this committee that some of the answers were not 

truthful. He’s also reviewing sworn testimony of others to determine whether they were truthful. 

Could I have your assurance that you will not in any way interfere with that review that he is doing? 

Judge MUKASEY. You have that assurance. 

183 

Chairman LEAHY. Thank you. 

Senator Durbin? 

Senator DURBIN. Thank you, Mr. Chairman. 

Several of our colleagues this morning have said a few words to 

Steven Bradbury, who’s the interim, or acting head, of the Office 

of Legal Counsel. I would, without returning to yesterday’s line of 

questioning, say that until it’s clear in my mind why the investigation of Mr. Bradbury’s conduct relative to the warrantless wire tap 

program by the Office of Professional Responsibility was not completed and was, in effect, preempted in an unprecedented way by 

the President refusing security clearances to the Office of Professional Responsibility, I will continue to hold his nomination and believe that serious questions about his fitness to serve remain, in my 

personal opnion. 

I would like to ask you, Judge Mukasey. We talked briefly yesterday about ongoing issues involving race in America. There is another issue which is troubling and is in the papers on a regular 

basis, and it’s the issue of immigration. 

In my town, I’m fortunate to represent the city of Chicago. The 

chief of police has said to me that they have made a conscious decision to give confidentiality to witnesses and victims when it comes 

to their immigration status in the belief that this is the only way 

to encourage cooperation and the reduction of crime, particularly 

violent crime. Other cities have made that same decision—your city 

of New York, under Mayor Guiliani; cities like Minneapolis and 

Houston have reached similar conclusions. 

I would like to ask, since there’s clearly a question to be raised 

here of policy, in that immigration laws are Federal in nature and 

the decisions are being made at the State and local level to have 

confidentiality agreements, which in the eyes of some suspend the 

enforcement of those Federal laws by local agencies, what is your 

position or opinion on these confidentiality agreements? Or I 

should say confidentiality statutes. 

Judge MUKASEY. I wasn’t aware that there were statutes. I 

thought these were simply matters of— 

Senator DURBIN. I think you’re right. More a matter of policy. 

Judge MUKASEY. Policy. Wholly apart from that, the governance 

of every political subdivision is the responsibility of the executive 

in that subdivision—the mayor of a city, Governor of a State—and 

they have to answer to their constituents for the safety, for the 

welfare of their locality. It seems to me they have to use their own 

good judgment as to what is necessary to protect that safety and 

welfare and they can’t take a principle, which is that we don’t want 

to tolerate unlawful immigration—we don’t. 

We can’t take a principle like that and go over a cliff with it. 

They can’t say we’re going to let this town be as lawless as it has 

to be because we are going to turn in anybody who comes in as a 

witness who is not properly here. We can’t say that we’re going to 

let children starve because their parents are not lawfully here. 

There has to be—there is a reality to be dealt with, and they are 

the people that have to deal with it. I am very sympathetic to that, 

and very much loathe to second guess them, and I won’t second 

guess them as Attorney General. 

184 

I may try to persuade an executive to adjust a policy one way or 

another in a way that accommodates reasonable needs, but that’s 

a very different thing from saying that the sacrifice, the physical 

welfare of people in a particular jurisdiction, because we have a 

principle here and illegal immigration is a hot-button issue, therefore everything else goes by the wayside—you can’t say that. 

Senator DURBIN. Can I conclude, or would you conclude from 

that statement that the primary responsibility for enforcement of 

immigration laws and policies is a Federal responsibility? 

Judge MUKASEY. The primary responsibility is a Federal responsibility. Often you can’t do that without the cooperation of local authorities. I would seek it, but certainly it is principally the Federal 

Government’s responsibility. 

Senator DURBIN. We spoke about the issue of race yesterday and 

I thought your answers were consistent with my values, and the 

values of most Americans in terms of trying to reduce the tension 

between whites and African-Americans when it comes to justice in 

America. 

I’d like to ask you about a specific case that you were involved 

in, Jordan v. LeFevre. This case involved a murder charge. The 

prosecutor struck multiple African-American jurors, potential jurors. The State trial judge refused to allow the defense attorney to 

have a fair opportunity to challenge the striking of these AfricanAmerican jurors, the so-called Batson challenge. 

You denied the defendant’s habeas challenge and allowed the 

conviction to stand, and were reversed by the appellate court. The 

appellate court said, ‘‘The court insufficiently protects the defendant’s equal protection rights when, in its haste to speed along the 

proceedings, it declares that a reason is rational without making 

the critical determination as to purposeful discrimination.’’ 

On reflection, do you feel the appellate court’s observation is correct and that you overlooked what could have been purposeful discrimination by the State in the selection of jurors? 

Judge MUKASEY. The appellate court’s observation was certainly 

correct. What I recall—from what I recall of that case—it’s been a 

while since I looked at it—one of the elements in my consideration 

was giving deference to the judgment of the State court that made 

that decision in the first instance. 

The case came back to me. We had a hearing and went through 

each of the jurors that were struck, each of the reasons that were 

given, and ultimately the Batson challenge was rejected and that, 

I believe, was sustained on appeal. I don’t actually recall whether 

it went up or not. I believe it did, and it was sustained. 

But I certainly agree that you have to give people an opportunity 

to make a record, and if I too hastily thought that somebody had 

been given an opportunity to make a record and that was not the 

case, then, yes, I regret that. 

Senator DURBIN. We had questions yesterday about the issue of 

torture and the Geneva Conventions. The techniques which have 

been attributed to this administration involve painful stress positions, threatening detainees with dogs, forced nudity, 

waterboarding—that is, simulated drowning—and mock execution. 

When we had the Judge Advocates General testify, I asked pointblank whether they believed these techniques violated the Geneva 

185 

Conventions and they said yes. And I asked if they felt if those 

techniques were used against an American detainee they would be 

violative of the Geneva Conventions and they answered in the affirmative. 

What is your opinion? 

Judge MUKASEY. They—I mean, I’m certainly not in a position 

here to argue with the Judge Advocate General’s view that they 

violate the Geneva Conventions and that, whether used against us 

or against anybody else, that they would. That said, I think we 

have to also recognize that when we’re talking about coercive methods of interrogation, this is not a matter of choosing pleasant alternatives over unpleasant alternatives or good alternatives over bad 

alternatives. It’s a choice among bad alternatives. 

What the experience is of people in the Judge Advocate General’s 

corps, who are enormously well-disciplined and very skilled, what 

that experience has been with captured soldiers, captured military 

people, from enemies we fought in the past, may very well be far 

different from the experience that we’re having with unlawful combatants that we face now. It’s a very different kind of person. 

Senator DURBIN. Well, I want to make sure I understand your 

response, because I think you may have created a division here in 

treatment, arguing that if these techniques were used in the past 

before the current threat of terrorism, it would be a different circumstance under the Geneva Convention than it might be today. 

I want to make sure I don’t draw the wrong conclusion from that 

previous answer, so if you could clarify it for me, please. 

Judge MUKASEY. I’m not sure how I can—I mean, I’m not sure 

I can clarify. 

Senator DURBIN. Well, let me go back. I understood you to say 

that the Judge Advocates General, speaking about the Geneva Conventions and these specific methods of torture, may have been referring to previous times, previous conflicts, and that this conflict 

and this challenge of terrorism may present a different set of challenges that might be viewed or interpreted differently under the 

Geneva Conventions. If that is not what you said, please clarify. 

Judge MUKASEY. I’m not sufficiently familiar with interpretations 

of the Geneva Conventions to be offering views on what would or 

would not come within it or outside it. What I thought I was talking about is procedures that are acceptable to the military that are 

authorized in the Field Manual and that represent the limit of 

what it is that the Armed Forces can do. There are other techniques that are, as I understand it, that may be used by, with 

proper authorization, people outside the military. Those are not 

covered in the Field Manual. 

Senator DURBIN. But I’m speaking of the Geneva Conventions. 

The Judge Advocates General said the techniques that I described 

to you violated Common Article 3, and this is the baseline test that 

applies to everyone, not just soldiers. I believe that the Supreme 

Court agreed with that conclusion in Hamdan. Do you see that differently? 

Judge MUKASEY. What part of Common Article 3 the Supreme 

Court found in Hamdan was applicable through—I believe through 

the Universal Code of Military Justice, unless I’m confusing my 

cases. I can’t, as I sit here, recall precisely what part of Article 3 

186 

the Supreme Court found applicable. I thought they were talking 

about the need for trial and for an opportunity for a detainee to 

get a hearing. I did not think that concerned interrogation techniques. 

Senator DURBIN. Let me try to bring it to the bottom line, because I want to make sure if there is common ground, we find it, 

and if not, that it’s clear on the record. 

I want to understand, as to these interrogation techniques, 

whether you believe that they would constitute torture and, therefore, could not be used against any detainee, military or otherwise, 

by the United States Government? 

Judge MUKASEY. I don’t think that I can responsibly talk about 

any technique here because the very—I’m not going to discuss, and 

I should not, and I’m sorry I can’t discuss, and I think would be 

irresponsible for me to discuss, particularly the techniques with 

which I am not familiar. When there are people who are using coercive techniques who are being authorized to use coercive techniques, and for me to say something that is going to put their careers or freedom at risk simply because I’m going to be congenial, 

I don’t think it would be responsible for me to do. 

Senator DURBIN. This is not a congeniality contest, and I’m sorry 

that I’ve gone over, Mr. Chairman. But, for instance, I just want 

to—if I could make one last point on the issue of waterboarding, 

simulated drowning. The United States has long taken the position 

that this is a war crime. In 1901, U.S. Army Major Edwin Glenn 

was sentenced to 10 years hard labor for waterboarding a captured 

insurgent from the Philippines. U.S. military commissions after 

World War II prosecuted Japanese troops for engaging in 

waterboarding. 

The torture statute makes it a crime to threaten someone with 

imminent death. Waterboarding is a threat of imminent death. I’m 

hoping that you can at least look at this one technique and say 

‘‘that clearly constitutes torture, it should not be the policy of the 

United States to engage in waterboarding, whether the detainee is 

military or otherwise’’. 

Judge MUKASEY. It is not constitutional for the United States to 

engage in torture in any form, be it waterboarding or anything 

else. 

Senator DURBIN. There’s your answer. The Chairman will followup. 

Chairman LEAHY. I just want to make sure I fully understand. 

But I wrote down about three different times when you said ‘‘unless it is authorized’’. Are you saying that techniques can be authorized that are not constitutional? 

Judge MUKASEY. No, that is emphatically not what I’m saying. 

What I’m saying is that techniques can be authorized that are beyond the Army Field Manual. I should not get into a discussion of 

what they might be, or in what combination they might be authorized. 

Chairman LEAHY. But simply because something is authorized, if 

you have a law that says it is torture and it’s not allowed, is there 

any way it could be still authorized? 

187 

Judge MUKASEY. If it is torture, as defined in the Constitution, 

as defined by constitutional standards, it can’t be authorized. We 

don’t have the Nuremberg defense. 

Chairman LEAHY. Is the current statute outlawing torture constitutional? 

Judge MUKASEY. I believe it is. 

Chairman LEAHY. So that if something was authorized outside 

that statute or that violates that statute, that authorization is illegal? 

Judge MUKASEY. Correct. 

Senator DURBIN. Thank you. Thank you, Judge. Mr. Chairman. 

Chairman LEAHY. Senator Whitehouse? 

Senator WHITEHOUSE. Just to finish that thought, so is 

waterboarding constitutional? 

Judge MUKASEY. I don’t know what’s involved in the technique. 

If waterboarding is torture, torture is not constitutional. 

Senator WHITEHOUSE. ‘‘If waterboarding is constitutional’’ is a 

massive hedge. 

Judge MUKASEY. No. I said if it’s torture—I’m sorry. I said, if it’s 

torture. 

Senator WHITEHOUSE. If it’s torture. That’s a massive hedge. I 

mean, it either is or it isn’t. Do you have an opinion on whether 

waterboarding, which is a practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces 

and pouring water over the cloth to simulate the feeling of drowning, is that constitutional? 

Judge MUKASEY. If it amounts to torture, it is not constitutional. 

Senator WHITEHOUSE. I’m very disappointed in that answer. I 

think it’s purely semantic. 

Judge MUKASEY. I’m sorry. 

Senator WHITEHOUSE. As you consider this, I’d like to offer you 

at least a thought that I’d ask you to consider. This comes from testimony brought before the Senate Intelligence Committee that is 

declassified. It comes from a military officer who has conducted interrogations who was team chief during the Gulf War, who had all 

of the services under his command, interrogating literally thousands of prisoners. He was an advisor to Special Operations task 

forces during Iraqi Freedom. 

He says, ‘‘I’ve had a chance to really look at the academic, theoretical side of interrogation and I am steeped in the operational 

side.’’ I asked him, ‘‘From the point of view of intelligence-gathering 

effectiveness, would you, could you, or should you go beyond the 

Army Field Manual and the techniques that are authorized in the 

Army Field Manual in order to obtain intelligence? 

His answer: ‘‘Senator, I thank you so much for that question, because I’ve been waiting 20 years to answer it. That is: absolutely 

not. I am not at all limited by the Army Field Manual in terms of 

what I need to do to generate useful information. That’s the key: 

accurate, useful information, not leading questions to force 

soembody to say what they think I want to hear, but the full spectrum of their knowledgeability; not answering only the questions I 

ask, but developing what I call ‘operational accord’, a relationship 

that they see it’s in their best interests under non-pressure, nonVerDate Aug 31 2005 11:11 Sep 04, 2008 Jkt 039985 PO 00000 Frm 00193 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\39985.TXT SJUD1 PsN: CMORC
188 

coercive circumstances that it would be in their best interests to 

answer these questions fully.’’ 

He gives an example of critical intelligence gathered in a search 

for SCUD sites in the Iraq war and explains that he received it because the individual said: ‘‘ ‘I’m so amazed at my treatment. I wanted, if I was going to be captured, to be captured by one of your allies, not by the Americans, because I was told you were animals. 

You’ve treated me like a gentleman. You’ve treated me with respect. You are clearly knowledgeable of my customs and my culture. I am more than happy to answer any questions that you 

have.’ ’’ 

So I asked him to confirm this: ‘‘What you mean to say was, you 

don’t see the constraints of the Army Field Manual, the moral constraints, the legal constraints as in any way inhibiting the effectiveness of your examination techniques, that you could do everything you wanted to, that you missed for nothing because of those 

restrictions, is that what you intended to say? ’’ 

The answer: ‘‘That’s precisely what I meant to say. I don’t see 

those as limiting my ability to work, the spirit or the letter of that 

guidance. My approach was what we called a relationship-based 

approach. I’ve never felt any necessity or operational requirement 

to bring physical, psychological, or emotional pressure on a source 

to win their cooperation. So, following the guidance in the Field 

Manual, I feel unconstrained in my ability to work in the paradigm 

I’ve taught for so many years—22 years, 100 percent interrogation 

experience.’ 

So then I asked him, ‘‘Why don’t other countries do this?’’ He 

said, ‘‘That gets to the very heart of the matter, and it is this: there 

are two objectives that one can pursue in interrogation, either winning cooperation or compliance. They seem very similar, but there 

are profound differences. Compliance means to take action that is 

against your interests that you don’t support. 

It has nothing to do with intelligence. Cooperation is winning a 

source’s willingness to provide useful information. If the Chinese 

were interested, the Koreans, the North Vietnamese, it was maybe 

5 percent intelligence, 95 percent compliance, meaning creating 

propaganda. That’s a whole different paradigm. The approaches 

that they use, like sleep deprivation and torture, ultimtely will get 

any one of us in this room to do things we couldn’t imagine today, 

but it doesn’t necessarily mean our ability to provide useful information.’’ 

He concluded later by saying, ‘‘So I think the key point, sir, is 

are we trying to produce compliance, which is propaganda, or cooperation, which leads to intelligence?’’ I hope, as you’re evaluating 

these techniques, you will also consider the, I believe, widely held 

view of career professionals—the FBI, the military—in the interrogation field who think that these techniques are not only wrong, 

but ineffective. 

Two quick questions. We talked yesterday about the rules and 

regulations, the norms, practices, and protocols, and traditions of 

the Department. I urged you to consider those. You said that you 

would do so, and you referred to a variety of people. 

I want to pin you down and ask you, sir, if you would pledge to 

undertake some formal process of review and evaluation of those 

189 

internal protocols, norms, and practices so that you get a report 

from experienced people on what needs to be repaired? 

Judge MUKASEY. I’m going to pledge to undertake to review the 

practices. I’m going to pledge to consult with people, both inside 

and outside the Department in the course of that. Convening a formal process is something I can’t commit to now. If it is necessary 

and if I find that the results of inquiry and consultation don’t yield 

a satisfactory result, I will consider that. 

Senator WHITEHOUSE. Do you agree to keep me informed of your 

activities in this area? 

Judge MUKASEY. I will. 

Senator WHITEHOUSE. Thank you. 

Finally, in the event that you are sworn in as Attorney General 

of the United States, do you believe that you will be working for 

the people of the United States of America or the President of the 

United States of America? 

Judge MUKASEY. I will be working for all the people of the 

United States of America, and I see no antithesis between that and 

the President’s Cabinet. I am here because I’ve been nominated by 

the President. If I am confirmed, I will be a member of the President’s Cabinet. I will serve as I believe the certificate says, ‘‘at his 

pleasure’’. That said, my oath is to uphold the Constitution, and 

that’s what I’m going to do. 

Senator WHITEHOUSE. There is a distinction that I believe your 

predecessor failed to appreciate between who has the appointing 

authority for a position and where the duties of that position run. 

Do you agree with that? 

Judge MUKASEY. I don’t want to sit here, and I’m not going to 

sit here, and criticize my predecessor. I have no— 

Senator WHITEHOUSE. I’m sorry. Let me rephrase the question. 

Do you agree with that distinction? 

Judge MUKASEY. I have no such confusion. 

Senator WHITEHOUSE. Very good. OK. Thank you. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Judge Mukasey has requested a 5-minute break. We’ll take a 5- 

minute break. I’ve been told you requested one. No? 

Judge MUKASEY. Somebody missed a signal. 

Chairman LEAHY. Well, if you’re not, then we will go to Senator 

Cardin. 

Judge MUKASEY. Fine. 

Chairman LEAHY. Thank you. 

Senator Cardin? 

Judge MUKASEY. Maybe somebody thought I should have requested it. I don’t know. 

[Laughter.] 

Senator CARDIN. Thank you, Mr. Chairman. 

Let me just ask a few more questions on torture, just to complete 

the discussion here. If I understand your answers, if you determine 

or if it’s determined by the Department of Justice that an individual has violated the torture statute or the Constitution, and 

even though that person has acted under authority of the commander or the President, that if the determination is made that in 

190 

fact the constitutional statute has been violated, you would move 

to hold that person accountable? 

Judge MUKASEY. I would move to hold that person accountable 

after reviewing the facts of that case. 

Senator CARDIN. Certainly. I implied that in the question. This 

is not trying to be a trick question. I’m just trying to determine, 

you’ve been pretty clear about torture being unconstitutional. 

You’ve been pretty clear that our statutes are to be enforced. I understand there could be some challenge as to the interpretation of 

the statute. I understand that. 

Which gets me to the second point that we’ve been going back 

and forth on, and in response to Senator Whitehouse’s questions. 

What I guess I’m looking for, and I think I feel comfortable with 

your answers, is that you’re going to be advising the President, advising our Department of Defense, advising our different agencies 

as to your independent judgment within the Department of Justice 

as to what constitutes torture, and that you’re not going to be just 

responsive to try to defend what some commander may want because that person believes it’s effective in getting information. 

Judge MUKASEY. That’s absolutely correct. Now, I’m going to request a short break. 

Chairman LEAHY. Thank you. We will take a break for 5 minutes? 

Judge MUKASEY. Yes. 

Chairman LEAHY. Five minutes. 

[Whereupon, at 12 p.m. the hearing was recessed.] 

AFTER RECESS [12:09 p.m.] 

Chairman LEAHY. The committee will be in order. 

I understand somebody is still trying to figure out how to turn 

this away from being a meat locker. 

Judge MUKASEY. I’m glad someone else noticed. 

Chairman LEAHY. I apologize. Even as a Vermonter, I find this 

rather chilly. 

[Laughter.] 

Chairman LEAHY. Senator Cardin? 

Senator CARDIN. Thank you, Mr. Chairman. 

Judge Mukasey, I’d like to followup with the discussion we had 

yesterday on voter suppression. In your response, you said that 

voter fraud and voter suppression should go hand in hand and it 

should not be an either/or situation, and I agree with that. There’s 

no disagreement that we want to make sure that those who are 

qualified to vote are the only ones that do vote, and we want to 

fight voter suppression issues. 

The reasons for my questions, is that many of us believe there 

have been resources taken away from voter suppression. My question to you is whether you will commit to make sure there are adequate resources and attention in your Department to voter suppression issues. 

Judge MUKASEY. I well understand the reason for your concern, 

and I share it, and I will try to assure that. 

Senator CARDIN. Thank you. And I very much appreciated your 

response in regard to the more recent types of attempts at voter 

fraud, to suppress vote by wrong information given out on election 

191 

day. I very much appreciate your attention and response on that 

issue. 

Judge MUKASEY. And when I characterized that as fraud I wasn’t 

trying to be cute and say it’s distinct from voter suppression. It is 

fraudulent voter suppression. It is to be put down. 

Senator CARDIN. Thank you. 

Judge MUKASEY. So there’s no ambiguity. 

Senator CARDIN. I appreciate that definitive answer. 

Let me also return to one other subject we talked about, and that 

was the hate crimes activities, and just bring to the attention of 

this hearing the community relations services within the Department of Justice, because I think it’s a very valuable resource that 

would help provide assistance to communities and individuals who 

have been subject to discrimination issues. 

I would just urge you to make sure there are adequate resources 

and attention given to that particular service. I will point out in 

the Jena situation, I think it took over a year before there was any 

attention by that agency to the problems in Louisiana. I just think 

that’s a good community service offered by the Department of Justice and would urge you to take advantage of it. 

Judge MUKASEY. I will. Thank you. 

Senator CARDIN. Let me bring up a subject that has not been 

brought up, and that is ethnic and racial profiling, to try to get 

your assessment of your commitment in this regard. This type of 

activity has unfortunately been present in America for many years. 

In the 1900’s, the early 20th century, we had the Palmer raids that 

dealt with immigrants; during World War II, we had JapaneseAmericans who were interred, and Congress has taken steps to 

tried to acknowledge and correct that mistake in our history. 

More recently, there have been actions by law enforcement to 

target certain communities by profiling. Many of us believe that 

this is not what America stands for, and I would just like to get 

your thoughts on the use of ethnic or racial profiling. 

Judge MUKASEY. I’m one of the people who believe as you say: 

this is not what America stands for. We don’t single out people by 

group. People get treated as individuals. Singling out groups and 

putting particular focus on groups or looking for particular groups 

when law enforcement activities are being conducted is not consistent with a system that evaluates each person individually. I understand that and I want everybody else in the Department to understand it. I believe they do, but I want to make sure they do. 

Senator CARDIN. And last, let me bring up another issue which 

I don’t believe has gotten too much attention during this hearing, 

and that’s the disparate case issues where you have a supposedly 

neutral action taken that has a negative impact on a minority community, whether it’s in housing, employment, or elsewhere. The 

concern is that there has been less attention given to these types 

of cases during the last several years by the Department of Justice 

than historically has been given, whether it’s in housing, or whether it’s employment, or other areas. 

I would just like to get your assessment as to the importance of 

going after those types of activities that on the surface may appear 

to be neutral, but have had a negative impact on advancing rights 

for all Americans. 

192 

Judge MUKASEY. I think when you find that a rule or a practice 

is having an impact on one group that is very different than the 

impact that it’s having elsewhere, you have to take a very close 

look, subject to very close scrutiny, any such rule or practice to 

make sure that we’re not talking about something that is simply 

a cover or a code for something else. 

Senator CARDIN. I thank you for that response. I think you will 

find, among your career attorneys and staff within the Department 

of Justice, tremendous experience in this area. I think there has 

been a sense of frustration, at least as has been expressed to some 

of us, that that analysis has not gotten the type of attention that 

it should at the highest levels of the Department of Justice. 

So, I would just urge you to please take a look at those numbers, 

take a look at those cases there that have not been brought forward, because I do believe that there has not been the type of attention given to these types of cases that not only affect the specific 

practice, but gives clear guidance to the private sector as to what 

will be accepted and not accepted in our society in order to try to 

improve opportunity for all Americans. So I would just urge you to 

please take a look at what’s been done, and once again I thank you 

for your patience with this hearing and wish you well. 

Judge MUKASEY. Thank you very much. 

Senator CARDIN. Thank you, Mr. Chairman. 

Chairman LEAHY. Senator Specter is managing a bill on the floor 

which we’ll be voting on very soon. He wants to come back for another round which, as a matter of courtesy, of course, I’ll grant as 

the ranking Republican on this committee. He will come back at 2. 

But before we break, I’d like to do two things. One of the concerns 

I’ve had—actually, Senator Cornyn from Texas has joined me in 

this—is the practice of the previous Attorney General, who has 

abetted the Bush administration’s abuse of secrecy and encouraged 

the Department of Justice officers to withhold information under 

the Freedom of Information Act, or FOIA. It’s a bedrock statute 

that opens our Government to our citizens, as I’ve seen many 

times. 

No matter whether you have a Democratic or Republican administration, they’re going to be happy to send out press releases 

sayign all the things that they did right. It is usually up to the 

press to find out the things they did wrong, and FOIA helps in that 

regard. 

Will you commit to review and consider overturning some of 

these policies, Number one, and second, will you look at the legislation Senator Cornyn and I have put together with strong bipartisan 

support to reform FOIA? The reason we want to do it now is so we 

can say we are doing it, not having any idea who the next President is going to be, or whether it’s a Republican or Democratic administration. We feel strongly about this, and it should be done 

now so that whoever’s in that administration will have an open administration. 

Judge MUKASEY. I will certainly review the policies. Obviously I 

can’t say that before we had FOIA we didn’t have a democratic system in this country, we did. But we have certainly enhanced it substantially with that statute, and I understand the value of it and 

193 

the utility of it. I’m going to look at the policies you mentioned with 

that in mind. 

Chairman LEAHY. We’ll come back. I may have some further 

questions. I am concerned that a number of your answers yesterday, there was a very bright line on the questions of torture and 

the ability of an Executive, or inability of an Executive, to ignore 

the law. That seems nowhere near as bright a line today. Maybe 

I just don’t understand. You’re a lawyer from New York City. 

You’ve been a judge. I’m just a lawyer from the small State of 

Vermont. I may not fully understand the nuances. 

But I’m going to be asking further questions because I don’t 

know whether you received some criticism from anybody in the administration last night after your testimony, but I sense a difference, and a number of people here, Republican and Democratic 

alike, have sensed a difference. I want to make sure we clear that 

up before we finish. 

Judge MUKASEY. I received no criticism. I had dinner with my 

family last night. 

Chairman LEAHY. You did a lot better. I did, too. I turned down 

a public event so I could have a quiet dinner with my family. 

You’re probably a lot better off that way. 

Judge MUKASEY. Well, I should also point out that when you say 

I’m a judge from New York, I am a judge from New York and I’ve 

watched a lot of cross examinations, and I know the way cross examinations proceed: you start with an easy step and you go down 

the road. I don’t want to go down the road on interrogation techniques. That’s obvious. Did the things that were presented to me 

seem over the line to me as I sit here? Of course they do. They 

were intended to, and they did, and they do. But part of this is, 

it’s not so much the question as it is the next question and the one 

after that. That’s what concerns me. I need to be, I think, very 

careful about where I go on that subject. 

Chairman LEAHY. Let’s think about it during the noon hour, because I will come back to it on the questions. It’s one thing to say 

the statute allows this or doesn’t allow this. That said, I am concerned that you leave some opening that different parts of our Government may be held to different standards, or that some may be 

authorized to act outside the law. I’m careful in choosing my words 

in an open session, but we may want to go back to that issue. 

Judge MUKASEY. Thank you. 

Chairman LEAHY. Thank you. 

We’ll stand in recess until 2. I thank you. We’ll try to get the 

place warmed up before then. 

[Whereupon, at 12:20 p.m. the hearing was recessed.] 

AFTER RECESS [1:59 p.m.] 

Chairman LEAHY. Judge, I think it should be a tad warmer. 

Judge MUKASEY. It is. Thank you. 

Chairman LEAHY. I thank those who arranged that. 

I mentioned that Senator Specter was managing a very significant bill on the floor, and he had another couple of questions he 

wanted to ask. So I’ll yield to him, and then I think we’ll be able 

to wrap up with you. Although I must point out, as I did earlier, 

I will followup on one point we covered earlier this morning. I will 

194 

have some followup questions, and I would hope you would look at 

them very seriously. 

Senator SPECTER. Thank you, Mr. Chairman. 

Judge Mukasey, there has been a lot of controversy over the socalled Thompson memorandum and the McNulty memorandum 

with respect to the issue of attorney/client privilege with a practice 

by the Department of Justice to obtain waivers of the attorney/client privilege, and some controversy as to whether they’re voluntary 

or to what extent they are not voluntary. Legislation is pending 

which would eliminate that practice. 

My concern arises on two fundamental propositions: one, is that 

the commonwealth, the government, the State, has the burden to 

prove its case; and second, the right to counsel is a constitutional 

right and the attorney/client privilege is an indispensible part of 

the constitutional right to counsel. 

I have had some experience in the field, having been D.A. of the 

city of Philadelphia, and I would never have considered asking a 

defendant to enable me to prove his case, metaphorically speaking, 

out of his own mouth. The Department has made some modifications from the Thompson memo to the McNulty memo by raising 

the level within the Department of Justice, from Assistant Attorney 

General to Deputy, whether there’s a request for a waiver on facts 

or a waiver on opinions given by the attorney. You, of course, are 

very familiar with this issue, for many reasons. You have ruled on 

the issue. Is there any real justification for having a waiver on anything other than a purely, purely voluntary basis? 

Judge MUKASEY. First of all, I should start out agreeing with you 

on how fundamental privilege is. Absent the privilege, the right to 

counsel is nearly meaningless. You can’t get counsel—you can’t be 

expected to disclose the facts to your lawyer so as to get good counsel if what you think you’re doing is disclosing them ultimately to 

the prosecutor. 

In a corporate setting, the issue—the overriding issue—on 

whether to prosecute a corporation or not prosecute a corporation 

is what happened, who did it, how pervasive the conduct was, and 

whether all of this rises to the level that requires prosecution, not 

only to individuals, because after all, corporations can act only 

through individuals, but of the corporation itself. And in the course 

of that, a lot of that has gotten lost with focus on looking for waivers of attorney/client privilege or other rights of the corporation. 

I think part of this is because corporations are run by directors 

who have an obligation, a fidiciary duty, to find out facts, and because they often do appoint committees to find out facts and do reports, it is—those—the existence of those reports is well known, 

and their availability is, in a way, tempting. They help prosecutors 

save time in finding out facts. 

Senator SPECTER. Well, if the directors want to waive the corporate privilege, they could do that. It is their voluntary decision. 

That wouldn’t necessarily involve the employee who has a separate 

privilege. But the difficulty arises that if the privilege is not 

waived, there are tougher charges. The prosecuting attorney has 

vast discretion, as we all know, on charging. 

In many ways, the prosecuting attorney is the most powerful person in the government, said to have the keys to the jail in his pockVerDate Aug 31 2005 11:11 Sep 04, 2008 Jkt 039985 PO 00000 Frm 00200 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\39985.TXT SJUD1 PsN: CMORC
195 

et, not only on charging, but on recommendation of sentence. An 

awful lot of coercive power. That’s where the problem comes in. If 

they want to do it voluntarily, nobody ever told them before the 

Thompson and McNulty memos that they couldn’t do it. 

Judge MUKASEY. Particularly when it involves a corporation, 

where the very bringing of a charge is often the end of the road. 

I think that the problem that’s arisen under those memoranda is 

that when corporations want to say that they’re cooperating with 

prosecutors, we want to get the deferred prosecution or non-prosecution agreement, the prosecutors are told that when they’re evaluating the standards for determining whether the corporation is, in 

fact, cooperating or not, the degree to which the corporation discloses facts, and thus waives its privilege, is one measure. I think, 

though, that— 

Senator SPECTER. Well, why should cooperation or a waiver of a 

right determine what the charge will be or what the sentence recommendation will be? 

Judge MUKASEY. I think it’s not— 

Senator SPECTER. If you plead guilty, it’s well known that if you 

show contrition it has to be taken into consideration as a mitigating factor. But why should failure to waiver a constitutional 

right be an aggravating factor? 

Judge MUKASEY. I think it’s not intended to be made an aggravating factor, but simply that if a corporation, through its individuals, which is the only way that a corporation can act, if there’s 

been a violation of law, there’s always a question of whether the 

corporation should be prosecuted or not. It’s not a question— 

Senator SPECTER. Do you think the McNulty memorandum is a 

solid approach to this issue? 

Judge MUKASEY. I haven’t reviewed the McNulty memorandum 

recently. I think it has to be examined very, very carefully, and the 

point made that we are not—that that is not to be used as a club, 

and the corporation is not to be told, you’re not going to be—you 

want to say you’ve been cooperative? If you haven’t waived the 

privilege, you haven’t been cooperative, and the conversation stops. 

Senator SPECTER. Well, if it’s not to be used as a club, that’s fine. 

But it is a club and it is used as a club, from all we hear. Senator 

Leahy and I sat down with Deputy Secretary McNulty and tried to 

find some common ground and we couldn’t do it. So let me ask you 

to—you say you haven’t reviewed it, and I know there are too many 

things for you to review in the short period of time between your 

designation here. But if you would do that, we’d like to talk to you 

more about it, because the legislation is going forward. 

There’s a great hue and cry because there’s a great feeling far 

and wide that it is unfairly used. We recognize the seriousness of 

corporate crime. We know the impact. We see what’s happening 

with Enron and other companies. We’re concerned that the aiders 

and abetters may be held responsible, civilly at the minimum. But 

when a constitutional right is involved, we’d like to see a little closer, more careful analysis. 

On the issue of the request for the resignations of the U.S. Attorneys, we are at an impasse. I was consulted by Attorney General 

Gonzales as to what he should do, and I recommended to him early 

on privately, and then said it publicly in this room, that the best 

196 

course would be to make a full disclosure as to everything that had 

happened and lay it all out as to whether there was justification 

for the request for those resignations. 

Right now, there are some subpoenas outstanding and they involve high-profile people, such as the White House Counsel and 

Deputy White House Counsel, Ms. Meirs and Mr. Rove. We have 

tried to find a way of accommodating what the President wants to 

do. He undertook this issue himself in a nationally televised news 

conference to say that he did not want them to be questioned by 

both House’s Judiciary Committees, and there’s agreement there 

that we don’t have to do that. 

We can have a few members of the Judiciary Committee from 

each House, bipartisan, question them. He didn’t want them under 

oath. We prefer them under oath, but said, OK, no oath. There was 

no penalty for a false official statement in any of that. 

He didn’t want them with a transcript, and we said that’s not a 

good idea, we should have a transcript. I had a chance to talk to 

him personally about it. The transcript is more for the protection 

of the individual; you walk out of a meeting, and there are five different views as to what was said. But we had even agreed to forego 

that, at least I had. 

Then they wanted the commitment that we wouldn’t go any further if we were dissatisfied, but we felt we couldn’t make that commitment without abrogating our responsibilities. If we wanted to 

proceed any further, we were going to do that. And, of course, you 

haven’t been inside this issue. What I’d ask you to do, is to take 

a close look at it and see if you can help us resolve this impasse, 

at least on the transcript. 

Let me ask you, did you see any problem, or isn’t there a great 

benefit to everybody, especially the person being questioned, to 

have a transcript so there’s no doubt as to what was said? 

Judge MUKASEY. There is often—there is often a great benefit to 

everybody from having a transcript. But I think it has—it’s true of 

many conversations, it’s often a lot easier to talk and to actually 

get facts when somebody isn’t sitting there watching every syllable 

they say so as to be sure not to make a misstep. 

Senator SPECTER. I’d like us to go off the record and cease the 

transcript here, Mr. Chairman. I think we might find something 

further here. 

Judge MUKASEY. I’m sorry. I did not mean to suggest that we 

should cease the transcript. 

Senator SPECTER. Well, you’re weighing every syllable just as you 

described it, Judge. 

Chairman LEAHY. We haven’t ceased the transcript. I don’t want 

you to be fooled by that. I think it’s probably still going on. Besides, 

there are four or five cameras. 

Judge MUKASEY. Beg your pardon? 

Chairman LEAHY. A half a dozen cameras here. You can assume 

every word is being followed. 

Senator SPECTER. Pardon my interruption, Judge Mukasey, but 

you were just describing yourself. I couldn’t help but note that we 

might find out more from you if we stopped the transcript. 

Judge MUKASEY. I think what you found out from me is everything that’s there. 

197 

Senator SPECTER. Well, if you have doubts about a transcript, I’d 

ask you to take a look at it. 

Chairman LEAHY. We’ll come back to that. 

Senator SPECTER. I’m trying to move these hearings as fast as I 

can. I gave you a letter when I saw you recently, Judge Mukasey, 

about oversight. This is a very sticky issue. I’ve made it a practice 

to give a letter, as I did to Attorney General Gonzales, to the Deputy Attorney General, and to others on the essential question of the 

breadth of congressional oversight, and it was summarized, as I 

pointed out to you, by the Congressional Research Service analysis, 

which essentially says that DOJ has been consistently obliged to 

submit to congressional oversight, regardless of whether litigation 

is pending, so that Congress is not delayed unduly in investigating 

malfeasance or maladministration at DOJ or elsewhere. 

And it includes, as the memo from Congressional Research Service says, ‘‘testimony of subordinate DOJ employees, such as line attorneys and FBI agents. Investigating committees were provided 

with documents respecting open or closed cases that include prosecutorial memoranda, FBI investigative reports, summaries of FBI 

interviews, memoranda of respondents prepared during the pendency of cases.’’ 

Would you agree that that’s an accurate statement of the legitimate scope of congressional oversight? 

Judge MUKASEY. I have no way to dispute the accuracy of the 

history that’s set out there. There have been instances in which 

each of those categories of information has been produced. As I sit 

here, it seems apparent that there are also instances when the 

pendency of a case on some other issue, or some issue of privilege, 

if there is one, is going to result in hesitancy to produce the kind 

of information that you read off. I think it needs to be approached 

very carefully on a case-by-case basis. 

I’ve said in the past, and I am now having a hard time distinguishing between the private meetings and this session, that I 

don’t think that oversight is a zero-sum game in which everything 

that gets disclosed is somehow a loss for the Department, and everything that doesn’t get disclosed is somehow a gain. You have a 

very broad oversight authority and it’s something that benefits not 

only the process, but the Department as well, because it assures 

that it keeps a high level of performance. 

I recognize that and that’s why disputes in the past, to the extent that there have been any, historically, have been worked out. 

Going to extremes has been, as I understand it, very much the exception. I hope it will remain very much the exception. I hope there 

won’t be any. 

Senator SPECTER. Well, is there some exception—is what you’re 

saying is that you agree with what I read as a generalization? 

Judge MUKASEY. I agree what you read has happened in the optimum case, yes. 

Senator SPECTER. What is the ‘‘optimum case’’ ? 

Judge MUKASEY. The optimum case is the case in which the kind 

of information that you mentioned can be disclosed without any adverse impact on pending litigation, on privilege, on the ability of 

the Department to function. 

198 

Senator SPECTER. If the sole determiner of adverse impact is the 

government, we don’t get very far. 

Judge MUKASEY. That’s not the sole determinant. That’s why I 

said this is something that’s always been worked out, or almost always has been worked out, in discussions between the Department 

and the committee, and people on the staff. 

Senator SPECTER. So that’s a fair generalization to be worked out 

on a good-faith basis between Congress, say, and the Department 

of Justice? 

Judge MUKASEY. It is. It is. 

Senator SPECTER. Did you say it is? 

Judge MUKASEY. I did, yes. 

Senator SPECTER. I’m almost finished. Just a couple more questions. 

Judge Mukasey, the Combat Status Review Board was a subject 

of an inquiry yesterday, and it’s a very long subject and I’m not 

going to take up the time to do it now. Instead, I’m going to ask 

you to review it. I’m going to ask you to review the case I called 

to your attention under the caption of in re: Guanta ́namo case, 

which recited a proceeding before the Combat Status Review Board 

where a detainee was charged with associating with Al Qaeda people. 

As for the name, nobody could give it to them. As the report says, 

‘‘there was laughter in the courtroom, the proceeding was so ludicrous.’’ I would ask you to take a look at the statement of Lieutenant Colonel Steven Abraham, describing what goes on in the Combat Status Review Board from a person on the inside, who shortly 

after this received a lot of notoriety when the Supreme Court 

granted the petition for re-arguing the case now pending. I think, 

in anticipation of that oral argument, the government has now 

come up with another procedure which has not been fully explained. 

It is true that you can have a substitute, under Swain, that it 

has to be an adequate substitute. The Swain case dealt with 

habeus corpus in the District of Columbia, the equivalent of a State 

court, with the only difference being the tenure of the judge, very 

close to Federal court habeus corpus. I’d like you to take a look at 

that. 

And the final question I have for you is on the question of the 

government notifying people under investigation that it’s over 

whenever it is over. I’ve heard a lot of complaints of people who 

are under investigation that the matter goes on forever and they 

never know whether they are or are not, and there’s a great deal 

of apprehension, understandably, of people under investigation. 

We are advised that some U.S. Attorney’s Offices tell the person 

when the investigation is over, if they really know it’s over. There, 

I’d like you to take a look at that again to see what the uniform 

policy could be handed down. Do you think, as a general matter, 

that fair play—wouldn’t you agree that fair play would be best 

served by telling people when it’s over, if it is over? 

Judge MUKASEY. If it’s over, I agree that it’s desirable for people 

to know that it’s over. There are a myriad of cases where it’s frequently uncertain. In different kinds of cases, in organized crime 

199 

cases and so on, it’s, regrettably, hardly ever. I agree to take a look 

at it. That, I will agree to. Yes. 

Senator SPECTER. Well, I would agree with you that if it’s not 

clear that it’s over, they aren’t entitled to be notified. I would hope 

that there would be a policy that they would be. 

Judge MUKASEY. It’s also, in part, a difficulty because it can hurt 

somebody more when there’s a policy to notify somebody that an 

investigation is over, and for some reason it can’t be done in a particular case for a person not to be notified, than if there were not 

a policy of doing that. It’s kind of—in a way, it’s kind of a twoedged sword. It is difficult. I would like—you’d have to be— 

Senator SPECTER. Well, if you’d take a look at that again, like so 

many other matters. 

Judge Mukasey, you have been a very impressive witness, very 

impressive credentials coming to this nomination, very impressive, 

your testimony here. And unless the witnesses who are here today 

who were called in support of your nomination change their minds 

and give highly damaging testimony, I think you are virtually certain to be confirmed. 

We’re glad to see the appointment, glad to see somebody who is 

strong, who has a strong record, take over this Department. The 

Chairman and I, and all the members of the committee, and probably many in the Senate, will have a lot of contacts with you. We 

look forward to being helpful to you and we look forward to cooperative efforts on many very important problems which face the Department of Justice in this country. 

Judge MUKASEY. Thank you very much. 

Senator SPECTER. Thank you. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator Specter. 

I would note, as I said earlier today, you’ve been extremely careful in your answers. I have a problem because some see you to be 

backing off from yesterday. But I will say this, that I much prefer, 

at least, a careful answer to 75 or 80 times of ‘‘I don’t know the 

answer’’ or ‘‘I can’t answer that’’, which we used to have from your 

predecessor. 

I mentioned Jack Goldsmith in my opening remarks. He was the 

former head of the Office of Legal Counsel. His book, ‘‘Terror Presidency’’, which I understand you’ve read—you can see how well annotated it is here—PBS program ‘‘Frontline’’ this week had an extraordinary program. It had a Pulitzer Prize-winning reporter from 

The Boston Globe, Charlie Savage. He wrote ‘‘Takeover: The Return of the Imperial Presidency and the Subversion of the American Democracy’’. 

I know some of the people written—goes across the political spectrum, but all of these reports conclude the Office of Legal Counsel 

has been changed from the traditional place it has had in administrations, where you just go to get a clear-cut legal definition. 

Instead, it’s been the place where the administration has gone— 

a lot times they find under the law they can’t do something, they 

go there and it’s kind of like, you put in and ask for your customized legal opinion so they can go ahead and do it. For example, 

on the opinions on torture, Professor Goldsmith wrote, ‘‘It, in effect, 

200 

gave interrogators a blank check,’’ and he said ‘‘the opinions read 

like a bad defense counsel’s brief.’’ 

You testified yesterday that, as Attorney General, you would review the legal opinions in the Office of Legal Counsel. Can you add 

to the list of opinions that you’re going to review those on executive 

privilege? 

Judge MUKASEY. I will. 

Chairman LEAHY. And those on immunity of executive officials 

from congressional testimony? 

Judge MUKASEY. I will. 

Chairman LEAHY. And if you disagree with them, will you 

change them? 

Judge MUKASEY. I will do that. 

Chairman LEAHY. And I will go by that assumption that, if you 

don’t change them, you agree with them. Would that be a fair assumption? 

Judge MUKASEY. That will be a fair assumption. 

Chairman LEAHY. Thank you. 

Would you agree that the office has to have independence? 

Judge MUKASEY. The office has to adhere to one standard and 

one standard only, and that is what the law requires. 

Chairman LEAHY. I would hope that you would try to get it back 

to that. I have been here six administrations, Republicans and 

Democrats, and they’ve always appeared to have independence in 

the Office of Legal Counsel before now. I don’t believe, for example, 

that a President can step outside the law on issues of torture or 

wire tapping. 

So I hope that the hearings turn out to be a step on the road to 

restoring the Department of Justice. It needs it desperately. I have 

talked to you privately about the fact that I hope that you would 

put back a Department of Justice that could be in good hands for 

whoever your successor might be as the 82nd Attorney General. 

That might be in a year, it might be in several years; I have no 

way of knowing. I have no way of knowing whether we’re going to 

have a President in my party or a President in your party. I think 

we can both agree that no matter what party you belong to, you 

need a strong, independent Attorney General in the Department of 

Justice. 

Now, I think we face the most serious threat to the effectiveness 

and professionalism in the Department of Justice since Watergate 

and the Saturday Night Massacre. After President Nixon became 

the only American President to resign from office, President Ford 

appointed Edward Levy and former Judge Harold Tyler, somebody 

both you and I admire, to begin the process of restoring the Department of Justice. 

It is too important an institution in our country to remain dysfunctional. I might say as a personal—just as the Senator from 

Vermont, I hope that Judge Mukasey, like Judge Harold Tyler, 

with whom you worked, will begin to restore the Department’s integrity. 

You’ve testified that the Department must stand for the rule of 

law. I agree. But I also add this mandate: it must stand for justice. 

Nothing is more fundamental to our constitutional democracy than 

the precept that nobody is above the law, neither you, nor I, nor 

201 

a President. I believe this administration has undercut that precept 

time and time again. 

The President commutation—and I realize he has the power to 

do this—of the sentence given to Scooter Libby, former Chief of 

Staff to the Vice President, who was convicted after a jury trial of 

lying to the FBI and to a grand jury, and obstructing justice. He 

commuted the sentence, even before the appeal was heard. 

We see them promoting immunity over accountability, and certainly secrecy over congressional oversight, with unilateral power 

over the checks and balances that define this Nation. Actually, I 

might say those checks and balances not only define the Nation, 

they have protected your liberties and mine for over two centuries. 

I don’t believe the President is above the law, even though many 

in the administration seem to feel he is. The view that he may 

override the laws he chooses is as extreme a view of Executive 

power as I’ve witnessed, and he’s dead wrong. I think it’s extremely 

dangerous to our democracy. The cost to our American liberty, our 

standing in the world, the security of our soldiers and citizens, can 

be staggering if we allow the President to be above the law, even 

more staggering than the trillion-dollar cost of the war in Iraq. 

I think when the administration compounds this lawlessness by 

cloaking its policy and its miscalculations under a veil of secrecy, 

it leaves the Congress and the American people in the dark about 

what it’s doing. I have not known any administration, Republican 

or Democratic, who hasn’t been helped in the long run by having 

real, searching oversight and having to admit, publicly, mistakes. 

You and I have had some time to talk, we’ve had private meetings, and we’ve had open meetings here. I have been here for virtually all your testimony and listened to it. I do worry that there’s 

been a retreat today from the clearer statements of the rule of law 

and the President not being above the law made yesterday. It’s 

why I will followup with some very specific letters. 

If you have questions about what I have, just call me and we’ll 

sit down and go over them. I don’t want to see you appearing to 

posit a system where a President’s over-broad and invalid claims 

of executive privilege can’t be tested. So, we’ll continue to meet on 

that, and I know that Senator Specter and the others will want to. 

The Attorney General has to uphold the Constitution and the 

law. He can’t bend the law to fit whoever the President is. I will 

say that no matter who the President might be. You can’t define 

torture down in secret in fundamental conflict with American values and law. 

I agree with what you said in your opening staetment, which I 

thought was very good. You spoke of protecting civil liberties and 

people’s confidence with those liberties, and protecting them as a 

part of protecting national security. I agree with that, and also add 

they are a fundamental American strength, American value, one of 

the things I’m sure that appealed to your father when he came to 

this country; it certainly did to my grandparents, my great grandparents when they came to this country. 

So the hearing is going to be the start of a new chapter: American laws and our values are no longer undercut and secret. You 

know, the question in this hearing is not whether you’ll be confirmed. The real test is going to be what kind of an Attorney GenVerDate Aug 31 2005 11:11 Sep 04, 2008 Jkt 039985 PO 00000 Frm 00207 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\39985.TXT SJUD1 PsN: CMORC
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eral you will be. That’s the test. That is also a legacy you will leave 

to your family, to—I hate to call your children; you are far beyond 

that—but I’ve been very, very impressed with both your son and 

daughter. Certainly it’s a legacy that you and your wife can cherish, and it’s one that you want—you want to be able to leave this 

office, as we all do in ours, with your head high. 

The oversight process, and the Attorney General’s cooperation 

with that process, can forge a working partnership. To paraphrase 

Ronald Reagan, a confirmation by the Senate is an act of trust. 

Oversight helps us verify. This Committee, and all parties, are 

ready and willing to work with you. I think we’ve already begun. 

Judge, I don’t mean to take the last word here. If you want to 

add something to that before we go to the next panel, please feel 

free. 

Judge MUKASEY. I couldn’t add in any way that would improve 

it. The only thing I can tell you is, if you ultimately do repose trust 

in me, I’ll spend the next however many months it is trying to vindicate that trust. I am grateful to you for this. Thank you. 

Chairman LEAHY. Well, you have your family, my family, and 

you have 300 other million Americans who need you to do that. 

Thank you. 

We’ll stand in recess for 5 minutes. 

Senator CARDIN. Mr. Chairman? 

Chairman LEAHY. Yes? 

Senator CARDIN. It’s my understanding that there is now scheduled votes on the floor starting at 2:30, and there are four votes 

that are scheduled, so it may be better for us to recess until about 

3:45 and start the next panel so we don’t conflict. 

Chairman LEAHY. Recess until the call of the chair. Thank you. 

Thank you, Judge. 

[Whereupon, at 2:30 p.m. the hearing was recessed.] 

AFTER RECESS [3:47 p.m.] 

Senator CARDIN. [Presiding]. The Judiciary Committee will come 

back to order on the confirmation hearings of Judge Mukasey for 

Attorney General of the United States. 

I want to welcome the panel of outside experts. We thank you 

very much for your cooperation and being here today. It’s very important that the record, in regards to the confirmation of an Attorney General, that there be opportunity for witnesses that know the 

nominee or could add to the consideration of the committee, have 

an opportunity to give that testimony. And we thank you all for 

agreeing to be here today and to be witnesses at this hearing. 

As is the tradition of the Judiciary Committee, I’m going to ask 

you all to rise in order to take an oath. 

[Whereupon, the witnesses were duly sworn.] 

Senator CARDIN. We will start with Mr. Thornburgh. Mr. 

Thornburgh has served as Governor of Pennsylvania, Attorney 

General of the United States for two Presidents, and was the highest ranking American at the United Nations. 

Elected Governor of Pennsylvania in 1978 and reelected in 1982, 

Governor Thornburgh was the first Republican ever to serve two 

consecutive terms in that office. 

Governor Thornburgh served 3 years as Attorney General of the 

United States in the cabinets of Presidents Ronald Reagan and 

203 

George H.W. Bush. During his service as Undersecretary General 

at the United Nations, Governor Thornburgh was in charge of personnel, budget and finance matters. He also served as a consultant 

to the United Nations and the World Bank on efforts to battle 

fraud and corruption. 

Governor Thornburgh received his bachelor’s degree from Yale 

University and his law degree from the University of Pittsburgh, 

which is where I graduated from undergraduate school. 

Governor Thornburgh, it’s a pleasure to have you here. 

STATEMENT OF DICK THORNBURGH, FORMER GOVERNOR OF 

PENNSYLVANIA, OF COUNSEL, K&L GATES, WASHINGTON, DC 

Governor THORNBURGH. Thank you, Senator Cardin. It is an 

honor to appear before the committee today and offer my views on 

the Department of Justice at this important juncture in its history 

and to tell you why I support President Bush’s nomination of Michael Mukasey to be the 81st Attorney General of the United 

States. 

The current situation at the Justice Department is, in some 

ways, similar to one that I encountered when I became the 76th 

Attorney General in August 1988. 

Two senior Justice Department officials, the Deputy Attorney 

General, Arnold Burns, and the Assistant Attorney General in 

charge of the Criminal Division, William Weld, had resigned their 

positions earlier that year because of their concerns about the ability of my friend and then Attorney General Ed Meese to lead the 

department while he was under investigation by an independent 

counsel. 

These resignations reflected some degree of turmoil within the 

department. Although the independent counsel did not seek to 

prosecute Attorney General Meese, his report, which was issued in 

July 1988, was sufficiently critical that Ed Meese chose to resign 

from office early in August 1988. 

After confirmation, I was sworn into office shortly thereafter. 

I considered it to be a unique honor and privilege to return to 

the Department of Justice, a great institution that I loved and still 

love. I had previously served as the United States Attorney for the 

Western District of Pennsylvania and the Assistant Attorney General in charge of the Criminal Division under President Ford during the immediate post-Watergate era. 

Those experiences heightened the most profound respect I held 

for the Department for its critically important and unique role in 

our Federal Government and for the legal abilities, professionalism 

and integrity of the career civil servants who carry out its vital 

missions. 

Early in my service as Attorney General, I established a majority 

priority, the restoring of morale within the Department of Justice 

in the wake of the recent turmoil at its very top ranks. 

With the indispensable assistance of that distinguished cadre of 

career employees to whom I referred, I believe that we were able 

to do so and to lead the department in the successful execution of 

its law enforcement functions and its vitally important role in the 

administration of justice. 

204 

Today, the Department of Justice is enduring another unfortunate period of turmoil at the top. There is no confirmed Attorney 

General, no confirmed Deputy Attorney General, and no confirmed 

Associate Attorney General. 

There are no less than six vacancies among the Assistant Attorneys General and more than 20 vacancies among the United States 

Attorneys. 

Although I strongly commend the job that acting Attorney General Peter Keisler and the Solicitor General, Paul Clement, are 

doing under difficult circumstances, the Department simply cannot 

function at the very highest level of efficiency and effectiveness 

with so many major vacancies in its top leadership corps. 

Let me comment in particular on the importance of the Justice 

Department’s enforcement of our Nation’s criminal laws. 

The prosecutorial function is the unique responsibility of the Department of Justice within our Federal Government. Although I am 

not passing judgment on the recent controversy over the dismissal 

of certain United States Attorneys, I will say that it is absolutely 

essential that the unique prosecutorial function of the Department 

of Justice be carried out in a strictly nonpartisan, unquestionably 

fair and evenhanded manner, both in fact and I appearance. 

In other words, Federal prosecutors must follow the evidence 

where it leads without fear or favor. Nothing could be more important. 

The Department of Justice simply must retain its unique degree 

of independence, because the Department alone, among the agencies of the Federal Government, has the power of criminal prosecution. 

You will hear from a distinguished former United States Attorney, Mary Jo White, and an equally distinguished former district 

court colleague of Judge Mukasey’s, Judge John Martin, to testify 

about the personal qualifications of Judge Mukasey to be our Attorney General. 

While I have only recently met Judge Mukasey, I, like many others, admire his record. He spent 4 years as a career Federal prosecutor in a very important U.S. Attorney’s office, that of the Southern District of New York. It is a testament to his record of accomplishment in that role that President Ronald Reagan nominated 

and, by and with the advice and consent of this body, appointed 

Michael Mukasey to be a judge of the United States District Court 

for that same district. 

In his 18 years on the Federal bench, Judge Mukasey served 

with distinction, earning, in particular, a well deserved reputation 

for the manner in which he conducted the proceedings of his trial 

court in major cases of importance to the national security of the 

United States. 

Just as the role of Federal prosecutor is a unique, independent 

and nonpartisan one, so the job of a United States district judge 

is one that must be conducted in exactly the same manner. Judge 

Mukasey has a strong reputation for having done precisely that. 

At this critically important time for the Department of Justice, 

in Judge Mukasey, the salient qualities of the person and the critical needs of the moment are well matched. There is no question, 

in my mind, that Michael Mukasey is the right person at this time 

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to fill the supremely important, singularly unique role of chief law 

enforcement officer of the United States. 

In closing, let me recall one of the most moving and memorable 

experiences of my service as Attorney General. It was in 1989, 

when it was my privilege to lead the Department of Justice during 

the celebration of the 200th anniversary of the creation of the Office of the Attorney General of the United States. 

Nearly all of the living Attorneys General, stretching all the way 

back to President Eisenhower’s first Attorney General, Herbert 

Brownell, returned to the Department of Justice for an historic 

commemoration of that milestone. We were also honored to have 

Ethel Kennedy, the widow of the 64th Attorney General, Robert F. 

Kennedy, in whose honor the main Justice Department building is 

now appropriately named. 

The group included distinguished Attorneys General appointed 

by presidents of both parties, including such giants as William Rogers, Nicholas Katzenbach, Elliot Richardson, Edward Levi, and 

Griffin Bell. 

I am confident that when Michael Mukasey takes office as our 

Nation’s 81st Attorney General, the Department of Justice can and 

will embark on a time of healing, renewal and exemplary leadership. I am equally confident that, ultimately, when he leaves office, 

Judge Mukasey will have earned his own place among the top 

ranks of our Nation’s finest Attorneys General. 

Let me add, before I close, that I would like to associate myself 

with the views of Senator Specter, expressed this morning in the 

Wall Street Journal, calling for Judge Mukasey, if confirmed, to 

end the Department of Justice’s assault on the attorney-client 

privilege in corporate investigations, which began in the Clinton 

administration and has been carried forward in this administration. 

A broad coalition, which reaches from the Chamber of Commerce 

and the National Association of Manufacturers, on the one end, to 

the American Bar Association and the American Civil Liberties 

Union, supports action to restore and reinvigorate this historic 

privilege, and I hope that Judge Mukasey sees fit to give it his attention. 

Thank you, Mr. Chairman. I would be pleased to answer any 

questions that you may have for me. 

Senator CARDIN. Thank you very much for your testimony. 

[The prepared statement of Governor Thornburgh appears as a 

submission for the record.] 

Senator CARDIN. We’ll now hear from Mr. Chuck Canterbury. 

President Canterbury joined the Fraternal Order of Police in 1984, 

when he, along with 11 other officers, chartered their local lodge. 

He served as a local lodge president for 13 years, during which 

time he was instrumental in starting the Lodge Legal Defense 

Plan, purchasing the first lodge building and starting the lodge insurance program. 

He began his service on the Grand Lodge Executive Board in 

1995, when he was elected to the first of three terms as second vice 

president. During this time, he has worked to expand the police 

labor movement in the areas of our country which do not have collective bargaining rights. 

206 

President Canterbury retired in January 2004 from the Horry 

County Police Department in Conway, South Carolina, where he 

most recently had oversight of the operations bureau. 

During his 25-year career as a police officer, he worked in the patrol division, the criminal investigation division, and served as the 

training division supervisor, during which he was certified as an 

instructor in basic law enforcement, firearms, chemical weapons, 

and pursuit driving. He earned his bachelor of arts degree from 

Coastal Carolina University. 

It’s a pleasure to have you here, Mr. Canterbury. 

STATEMENT OF CHUCK CANTERBURY, NATIONAL PRESIDENT, 

FRATERNAL ORDER OF POLICE, WASHINGTON, DC 

Mr. CANTERBURY. Thank you, Senator. First of all, I’d like to 

thank the Judiciary Committee for allowing the Fraternal Order of 

Police, the largest police labor organization in the country, to have 

input on such an esteemed position, which has much responsibility 

in the area that I’ve spent my entire career. 

As the Nation’s top law enforcement officer, we feel it’s important, as the Nation’s largest law enforcement organization, to be allowed this input. We’re very pleased and I’d like to personally 

thank Senator Leahy for the invitation. 

As many of you know, we consider Senator Leahy to be a stalwart for law enforcement and the rank-and-file officers in this 

country, and we’re very appreciative of his support and his request 

for us to be here today. 

In the matter of Judge Mukasey, he has a long and distinguished 

career in public service, which began with him becoming an Assistant United States Attorney in the Southern District of New York. 

In 1987, he was nominated for the Federal bench in that same district and was unanimously confirmed by the Senate, and he has 

spent the last 20 years as a Federal judge, including his last six 

as chief justice in one of the toughest, busiest and most prominent 

of our Nation’s Federal courts. 

During this tenure, he oversaw some of the most important and 

complicated national security cases, including the successful prosecution of Omar Abdel Rahman, the blind sheik who plotted to destroy the World Trade Center in 1993. His handling of this case 

earned him widespread acclaim and respect from his peers and the 

nation’s law enforcement community. 

In fact, the U.S. Court of Appeals for the Second Circuit specifically praised him, noting he demonstrated ‘‘extraordinary skill and 

patience’’ during that case and superbly handled challenges far beyond those normally endured by a trial judge. 

Judge Mukasey has issued the first ruling in the legal challenge 

brought by Jose Padilla, and it was a very thoughtful and well reasoned decision. He ruled that the President does, in fact, have the 

legal authority to detain as enemy combatants citizens captured 

during a time of war, but, yet, he also ruled that those citizens 

should have monitored access to an attorney. 

His deft handling of the issues in the Rahman and Padilla cases 

and the challenges he faced as the presiding judge in these cases 

prompted him to write an article in the Wall Street Journal, which 

argues that current statutes and institutions which comprise the 

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U.S. legal system are ill suited to handle the prosecution of terror 

suspects without compromising homeland security or foreign intelligence sources. 

Clearly, in this decision, he has given a great deal of consideration to the challenges faced by our legal system and our law enforcement community when it comes to threats from terrorists. 

In the opinion of the Fraternal Order of Police, this strongly recommends Judge Mukasey for the position of U.S. Attorney General, 

as well as having him there when we’re facing the challenges that 

we are currently on the war on terrorism. 

The FOP has had the honor of representing rank-and-file law enforcement officers in many localities and States and we are the bargaining unit for over 300,000 officers in this country. And for this 

reason, our interest in the cases that Judge Mukasey had been involved in over his career have not been limited to just his high profile cases related to national security. 

We are extremely satisfied with his record on the matters in 

criminal law that involve most of our membership and the labor organizations that we represent. We are also keenly interested in 

those cases which he has had to make rulings which touch the 

rights of employees, particularly public employees, and we are 

pleased to report to this committee that he demonstrated just as 

much skill and evenhandedness in those cases that we were able 

to examine as he did in the cases that generated nightly headlines. 

His distinguished career has earned him the respect of the law 

enforcement community and we are very much in favor of his appointment and his confirmation by the U.S. Senate. 

And we would be glad to answer any questions for you, Mr. 

Chairman, or any member of the committee. 

Senator CARDIN. Mr. Canterbury, thank you very much for your 

testimony. 

[The prepared statement of Mr. Canterbury appears as a submission for the record.] 

Senator CARDIN. We’ll now hear from Admiral John Hutson. Admiral Hutson attended Michigan State University, where he received his BA. Upon graduation, he was commissioned in the 

United States Navy. He then went on to graduate from the University of Minnesota Law School in 1972. 

In 1973, he was assigned to the Law Center at Corpus Christi, 

Texas, where he served as chief defense counsel and chief trial 

counsel. 

In 1980, Admiral Hutson attended Georgetown University Law 

Center, where he earned a master’s of law degree in labor law. He 

was then assigned as legislative counsel in the first of three tours 

in the Office of Legislative Affairs for the Navy. 

Admiral Hutson assumed duty as executive officer of the Naval 

Legal Services Office in Newport, Rhode Island in 1987. In 1989, 

he returned to Washington, DC to serve as a staff judge advocate 

and executive assistant to the Commander-Naval Investigative 

Command. 

In August 1989, Admiral Hutson moved to the Office of Legislative Affairs as Director of Legislation. Between October 1992 and 

November 1993, he was assigned as the executive assistant to the 

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judge advocate general of the Navy and, in November 1993, he resumed duty in the Office of Legislative Affairs. 

In August 1994, he assumed duty as Commanding Officer-Naval 

Legal Services Office, Europe and Southwest Asia, located in 

Naples, Italy. In July 1996, Admiral Hutson returned to the Naval 

Justice School as commanding officer. He was promoted to the rank 

or rear admiral and assumed duties as the judge advocate general 

of the Navy in May 1997. 

Admiral Hutson was awarded the Distinguished Service Medal, 

the Legion of Merit, with three gold stars, the Meritorious Service 

Medal, with two gold stars, Navy Commendation Medal, and Navy 

Achievement Medal. 

It’s certainly an honor to have Admiral Hutson with us today. 

STATEMENT OF REAR ADMIRAL JOHN D. HUTSON, JAGC, USN 

(RET.), PRESIDENT AND DEAN, FRANKLIN PIERCE LAW CENTER, CONCORD, NEW HAMPSHIRE 

Admiral HUTSON. Thank you, Senator Cardin. I probably should 

have sent a shorter bio in to the committee. 

Senator CARDIN. It was very impressive. You deserve the entire 

introduction. 

Admiral HUTSON. Thank you. And thank you to the committee 

for inviting me. I have a written statement that I’d request be 

made a part of the record. 

Senator CARDIN. Your entire statement will be made part of the 

record, as will all of the witnesses’ entire statements be made part 

of our record. 

[The prepared statement of Admiral Hutson appears as a submission for the record.] 

Admiral HUTSON. Thank you, Senator. I testified a few years ago 

in opposition to the nomination or confirmation of the former Attorney General, along with my good friends, Harold Cole at Yale and 

Doug Johnson at the Center for Victims of Torture. 

Unfortunately, our concerns at that time turned out to be prescient. I’m not here today to testify in opposition at all to the confirmation, but, rather, to simply highlight some of the concerns 

that I have and what I believe to be important areas of consideration. And I’d like, first of all, I guess, to make two points, which 

may perhaps seem to be unrelated, but, in fact, are very much related. 

One is a point that virtually all the witnesses have made and it 

can’t be gainsaid, which is that the United States is a country of 

laws. We adhere to the rule of law, or we should try to, and that 

there’s no one more important in that regard than the Attorney 

General of the United States. 

The second point that I think is related to that is that most of 

the great nations in history that have failed have failed as a result 

of foreign and domestic misadventure. Our adventure right now, 

foreign and domestic, is the so-called global war on terror, which 

I think is actually three different wars. 

But in that struggle, the enemy cannot defeat us militarily. They 

don’t have the lift, they don’t have the command, control, communications. They don’t have the weapons systems. They can’t defeat 

us militarily. 

209 

Winning for the enemy is to cause us to change, to bring us down 

to his level, to cause us to be something different than what we 

have been. Our great strength is support of human rights and the 

rule of law. 

Thomas Paine said that ‘‘The cause of America is the cause of all 

mankind.’’ The great, more recent geopolitical commentator, Bono, 

said that ‘‘America isn’t just a country, it’s an idea.’’ 

We are engaged in an asymmetric war. In an asymmetric war, 

the strategy is to pit your strength against the enemy’s weakness, 

unlike World War II, for example, where it was often strength 

against strength. 

Our great strength is our ideals. Thomas Paine and Bono had it 

right. The enemy is abjectly devoid of ideals. So the enemy can’t 

defeat us, certainly can’t defeat us militarily, but we can commit 

national suicide by disarming ourselves of our ideals, and there are 

lots of unfortunate examples of how we have started down that 

road. 

The Bybee torture memo, the Gonzales memo with regard to the 

Geneva Conventions, suspension of habeas corpus, combatant status review tribunals, Guanta ́namo and indefinite detention, lots 

and lots and lots of examples of torture. We can all say that the 

United States doesn’t torture, but all you’ve got to do is read the 

newspapers and you see lots of examples of it. 

And, more recently, the CIA authorized enhanced interrogation, 

a lovely euphemism, justified by secret memos, legal opinions from 

the Department of Justice. 

Let me give you some examples of where that road is not. Going 

back to 1950, the United States—this is the armed forces officer— 

the United States abides by the laws of war. Its armed forces and 

their dealing with all peoples are expected to comply with the law 

of war, in spirit and letter. Wanton killing, torture, cruelty or the 

working of unusual and unnecessary hardship. 

We all talk about torture. Back then, they were talking about the 

working of unusual, unnecessary hardship on enemy prisoners or 

populations is not justified under any circumstances. 

Article 93 of the Uniform Code of Military Justice, Cruelty and 

Maltreatment. Any person subject to this code is guilty of cruelty 

toward or oppression or maltreatment of any person, subject to his 

orders, shall be ordered punished, as a court-martial may direct. 

Common Article 3 of the Geneva Conventions, the following acts 

are and shall remain prohibited at any time and any place whatsoever, including, among others, outrages upon personal dignity, in 

particular, humiliating and degrading treatment. 

The Supreme Court never said part of Common Article 3 applies. 

The Supreme Court said Common Article 3 applies. That includes 

outrages on personal dignity. 

We don’t need a measured repudiation of those definitions of torture as being mistakes or unnecessary. We need a clarion call. We 

need a ringing, unequivocal repudiation of those definitions, of 

what has happened, that is so strong that it brings tears to your 

eyes and makes small children wince in its force. 

We are not engaged in an existential struggle here, unless we 

make it so. Only Americans can make America change. If we falter 

now or cower as a Nation in the face of this adversity, if we disarm 

210 

ourselves, we don’t deserve the gifts that were given to us by those 

early patriots or by the world’s greatest generations. 

And it’s the Attorney General who, to mix metaphors, stands at 

the pinnacle and will make the decision whether we’re at a pendulum or a plateau. 

Thank you very much, Mr. Chairman. I welcome your questions. 

Senator CARDIN. Thank you for your testimony and thank you for 

your service to our country. 

The next witness is Professor Dawn Johnsen. Professor Johnsen 

attended Yale College, where she received her BA in economics and 

political science. She graduated summa cum laude and was a member of the phi beta kappa. 

She then attended Yale Law School, where she received her JD. 

After law school, Professor Johnsen clerked for the Honorable Richard Cudahy in the U.S. Court of Appeals for the Seventh Circuit. 

A year later, she joined the American Civil Liberties Union as a 

staff counsel fellow. After leaving the ACLU, she spent 5 years as 

legal director for NARAL. 

In 1993, she joined the Department of Justice as Deputy Assistant Attorney General and then became acting Assistant Attorney 

General for the Office of Legal Counsel. 

The Assistant Attorney General for the Office of Legal Counsel 

is the fifth ranking Department of Justice official, who serves as 

legal advisor to the President and the executive branch, supervising about 24 lawyers and advising the counsel to the President, 

the Attorney General, and the general counsels of the various executive departments and agencies. 

In 1998, Professor Johnsen became a professor of law at Indiana 

University School of Law, where she teaches constitutional law, 

separation of powers, and the First Amendment. 

Professor Johnsen has testified before Congress, is a frequent 

speaker at national conferences, and has appeared on many national television and radio news shows. 

It’s a pleasure to have you here. 

STATEMENT OF DAWN JOHNSEN, PROFESSOR, INDIANA 

UNIVERSITY SCHOOL OF LAW, BLOOMINGTON, INDIANA 

Ms. JOHNSEN. Thank you. Good afternoon. I’m very glad for this 

opportunity to talk with you today about the Department of Justice. 

I had the great privilege of serving there at the Office of Legal 

Counsel, OLC, for short, for 5 years, including as the Acting Assistant Attorney General heading that office and I care deeply about 

its integrity. 

OLC’s core function is to provide the President and other executive branch officials with the legal advice they need to act lawfully. 

The work of OLC, under the current administration, has been 

dangerously compromised. Excessive secrecy makes it impossible to 

fully assess the problem, but we do know that on at least some 

counterterrorism matters, OLC has abandoned its traditional role 

and instead has facilitated policies that do not comply with the 

law. 

Former head of OLC, Jack Goldsmith, who served in 2003 to 

2004, wrote recently that some Bush-era OLC opinions ‘‘were deepVerDate Aug 31 2005 11:11 Sep 04, 2008 Jkt 039985 PO 00000 Frm 00216 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\39985.TXT SJUD1 PsN: CMORC
211 

ly flawed, sloppily reasoned, over-broad, and incautious in asserting extraordinary constitutional authorities on behalf of the President.’’ 

Goldsmith correctly notes that even a deeply flawed OLC opinion 

is akin to a get-out-of-jail-free card, because it is virtually impossible to prosecute someone who relied on an OLC opinion. 

Congress should respond to these failures by demanding public 

accountability, specifically, the release of opinions, and the restoration of OLC’s tradition of independent legal analysis. 

I’d like to suggest, as a framework for that, a statement of 10 

principles to guide the Office of Legal Counsel. 

A group of 19 former OLC lawyers coauthored this statement in 

response to the infamous 2002 OLC torture memo, in the hopes of 

helping to prevent any future recurrence of that debacle. 

The principles state that they are drawn from the longstanding 

practices of the Attorney General and the Office of Legal Counsel 

across time and administrations. 

I have submitted the entire statement of principles with my written testimony and now would like to highlight just two of those 

principles. 

The first and most fundamental principle, reads: ‘‘When providing legal advice to guide contemplated executive branch action, 

OLC should provide an accurate and honest appraisal of applicable 

law, even if that advice will constrain the administration’s pursuit 

of desired policies.’’ 

In short, OLC has to be prepared to tell the President no. I want 

to stress that saying no does not mean disabling the government 

from meeting national security threats. I deeply appreciate the Department of Justice’s critical role in protecting our Nation from terrorism. It does mean, though, helping the President to meet those 

threats and to proceed in a lawful manner. 

In the Bush administration’s most controversial policies—think 

about warrantless domestic surveillance, the establishment of military commissions, coercive interrogations to the point of torture— 

the critical question in all of these matters was whether the President would act unilaterally and largely in secret, skirting applicable legal requirements, or whether he would comply with the constitutional process for lawmaking by submitting his recommendations for change to Congress. The President consistently has chosen 

to go it alone. 

The second principle I’d like to mention, and I want to state this 

most clearly and emphatically, is that the Department of Justice 

must avoid secret law. And I quote from the principle, ‘‘OLC should 

publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure.’’ 

Of course, the executive branch, at times, has legitimate and 

even compelling needs for secrecy, but public explanation is critical 

any time the executive branch does not fully comply with a Federal 

statute or interprets a statute in a way that would surprise Congress. 

Recent reports suggest this may be the case with the recent ban 

on cruel, inhuman and degrading treatment. Congress cannot effectively monitor and regulate the government unless it knows how 

the executive branch is interpreting and implementing the laws 

212 

Congress already has enacted. Congress needs those secret OLC 

opinions that interpret the Detainee Treatment Act. 

It pains me to see what has happened to the Department of Justice, an institution that I greatly esteem, which is populated by 

many, many fine lawyers. Congress and the next Attorney General 

must confront the reality that the problem ultimately lies not with 

DOJ, but with the President. 

Numerous reports confirm that the President and the Vice President and their top advisors have been deeply hostile to any checks 

on their counterterrorism policies. The next Attorney General will 

face great pressures and he will need Congress’s strong support to 

do the right thing. He should scrutinize OLC’s work, rescind flawed 

opinions, publicly release many of the opinions, and restore OLC’s 

traditional role through publicly announced principles and procedures. 

In conclusion, this committee should engage in aggressive oversight to ensure all of this is accomplished and, beyond this, that 

the executive branch complies with the laws. 

Thank you. 

Senator CARDIN. Thank you very much for your testimony. 

[The prepared statement of Ms. Johnsen appears as a submission 

for the record.] 

Senator CARDIN. We’ll now hear from Mr. Theodore Shaw. Mr. 

Shaw is the Director, Counsel and President of the NAACP Legal 

Defense and Education Fund. Mr. Shaw joined LDF in 1982. He directed LDF’s education docket and litigated school desegregation, 

capital punishment, and other civil rights cases throughout the 

country. 

In 1990, he left LDF to join the faculty of the University of 

Michigan Law School, where he taught constitutional law, civil procedure, and civil rights. 

In 1993, on a leave of absence from Michigan, he joined LDF as 

associate director-counsel. Mr. Shaw graduated from Wesleyan 

University with honors and from Columbia University School of 

Law, where was the Charles Evans Hughes fellow. Upon graduation, Mr. Shaw worked as a trial attorney in the Civil Rights Division of the United States Department of Justice from 1979 until 

1982. 

He litigated civil rights cases throughout the country, at the trial 

and appellate levels, and in the U.S. Supreme Court. 

Mr. Shaw resigned from the Justice Department in protest of the 

Reagan administration’s civil rights policies. The National Bar Association Young Lawyers Division recently presented Mr. Shaw 

with the A. Leon Higginbotham, Jr. Memorial Award. He’s also received the Lawrence A. Wien Prize for Social Justice from Columbia University. 

He was awarded the Baldwin Medal, the highest honor given by 

the Wesleyan University alumni body, for extraordinary service to 

the university and the public interest. He served on the Wesleyan 

Board of Trustees for 15 years and was senior vice chair of the 

board when he retired from the board in June 2003. 

Mr. Shaw, it’s a pleasure to have you before our Committee 

again. 

213 

STATEMENT OF THEODORE SHAW, DIRECTOR, COUNSEL & 

PRESIDENT, NAACP LEGAL DEFENSE AND EDUCATION FUND 

Mr. SHAW. Thank you, Senator. As you’ve noted, I started my 

legal career with the Justice Department in the Civil Rights Division about 28 years ago, and it was a great place to work. It was 

a dream job. It was a wonderful start for a young lawyer. 

And what I was conscious of, as well as all of my colleagues, was 

the great tradition of the Justice Department and, particularly of 

the Civil Rights Division. 

I recently attended a reunion of alumni of the Civil Rights Division here in Washington, DC and one of the tragic things about 

that reunion—the reunion, of course, itself was not tragic, but it 

was tragic that not one person from the Civil Rights Division or the 

Justice Department representing this administration was present. 

That said volumes about the breach that exists between those 

who served at the Justice Department in the Civil Rights Division 

under Republican and Democratic administrations alike and the 

present leadership of the Justice Department and the Civil Rights 

Division. 

And I hope—I am sure that that’s something that will change. 

There’s a lot of healing that needs to be done and a lot of restoration within the Civil Rights Division and within the Justice Department. 

The core mission of the Civil Rights Division at its inception was 

the battle against racial discrimination, particularly as it was visited upon African-Americans. Now, of course, the mission of the 

Civil Rights Division is much more expansive than that. It represents the interests of all Americans, indeed, all people in this 

country and protects them against discrimination. 

So while the Division’s work has expanded, as it should have, 

and it does work that involves gender discrimination, discrimination on the basis of disability or people who are institutionalized, 

we believe that there is a manifest imbalance in the Civil Rights 

Division’s work that has cropped up in recent years. 

The Division does relatively little work on behalf of AfricanAmericans. To put it bluntly, I think most African-Americans who 

experience racial discrimination do not feel like the Justice Department is a place to which they can go to take their problems and 

know that their interests will be protected, and I lament that. 

While in office in the last six and a half years, the Department 

has brought only five cases including allegations of racial discrimination against African-Americans under Section 706 of Title 7. 

At the same time, it’s brought three so-called reverse discrimination cases on behalf of white claimants. Now, I want to be clear, 

I am not suggesting nor would I ever suggest that white individuals cannot be discriminated against or that the Justice Department should not protect their interests. But I think that that fact 

or those facts speak something about a policy difference that the 

Justice Department has adopted as compared to prior administrations. 

Similarly, it has brought only one Section 2 Voting Rights Act 

case on behalf of African-Americans. That case was filed last year. 

I draw the Committee’s attention, Senator, to the fact that the 

Justice Department has also, through its Civil Rights Division, abVerDate Aug 31 2005 11:11 Sep 04, 2008 Jkt 039985 PO 00000 Frm 00219 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\39985.TXT SJUD1 PsN: CMORC
214 

dicated its responsibilities when it comes to voting rights. There 

are several now well publicized instances in which the department 

has ignored the advice and analysis of career attorneys in troubling 

circumstances. I understand that lawyers who are career attorney 

don’t run the Division or the Department, but these decisions have 

been reasoned not on the basis of law, apparently, but on politics. 

In one instance when Georgia enacted voter I.D. requirements, 

the Justice Department pre-cleared. That requirement was then 

struck down by no less and no fewer than five courts, three Federal 

court decisions and two State court decisions. 

Let me close by pointing out that perhaps nothing is more telling 

than decisions, as a matter of policy, by the Department, by the Division, not to enforce civil rights laws using the most aggressive interpretation of the laws that the courts and Congress have made 

available, and my testimony gives several examples of this. 

It is my hope that should Judge Mukasey be confirmed as Attorney General, that the substance and the integrity of the Justice Department and particularly of the Civil Rights Division will be restored. 

The Justice Department is the crown jewel in the executive 

branch when it comes to the law and I hope that that status is recaptured. 

I must say, in closing, also, after sitting here and listening to the 

very eloquent testimony of Admiral Hutson, that I recall, after 

9/11, I was interviewed and I was asked about the aftermath of 

9/11 and what I said then was that my fear was that even if we 

could win the war on terror, however that’s defined, that we might 

lose our soul as a Nation, and I think that is exactly the threat 

that we are facing now, as Admiral Hutson has very eloquently 

pointed out. 

I want to join him. I hope that under new leadership, the Department, again, restores itself and our Nation to where we should be 

when it comes to the rule of law. 

On behalf of the Legal Defense Fund, it is my earnest hope that, 

if confirmed, Judge Mukasey will restore the Department to its 

long and proud tradition as an institution that serves the American 

people well. 

Thank you. 

Senator CARDIN. Thank you, Mr. Shaw. 

[The prepared statement of Mr. Shaw appears as a submission 

for the record.] 

Senator CARDIN. I’m going to recognize Senator Specter. 

Senator SPECTER. Thank you, Mr. Chairman. I just wanted to 

stop by to thank you for coming in and to say that there are so few 

people in attendance because people have so many responsibilities 

in so many directions. 

I just left the floor. We had a series of votes. I’m ranking on the 

Subcommittee of Appropriations on Labor, Health, Human Services 

and Education, and I have to stay on the floor. 

But I’ve had summaries of all of your testimony and we really 

do appreciate what you have to say. I heard what Mr. Shaw said 

about enforcement of the Civil Rights Act, and I can tell you that 

that’s a major concern of the Committee and the Senate and the 

House, that a great deal more needs to be done. 

215 

Reference was made to what Admiral Hutson has done on interrogation tactics, and there’s a lot of concern here on habeas corpus 

and the whole range of Executive power, which we’ve taken a look 

at. 

And I know that there’s a strong consensus in favor of Judge 

Mukasey and we’re very hopeful that he will make vast improvements, but I think this Committee was very instrumental in having 

the change made in the Department of Justice from the oversight 

hearings which we held. 

If you had to summarize the difference between Attorney General Gonzales, former Attorney General Gonzales and Judge 

Mukasey, it would be on habeas corpus. Attorney General Gonzales 

inexplicably said habeas corpus was not a constitutional right and 

Judge Mukasey said you can’t have a limitation on habeas corpus 

if it’s not a right, the obvious point, and I think that’s illustrative 

of the takeoff. 

So we thank you for coming in and what you have contributed, 

and, again, my regrets, because I have to go back to the floor. 

Thank you, Mr. Chairman. 

Senator CARDIN. Thank you, Senator Specter. Appreciate your 

comments. 

We’ll now hear from Mary Jo White. Mary Jo White was the first 

woman to be a U.S. Attorney from the Southern District of New 

York, serving from 1993 to 2002. When Ms. White left her post as 

a U.S. Attorney from the Southern Division of New York in January 2002, she was acclaimed for her nearly 9 years as a leader of 

what is widely recognized as the premier U.S. Attorney’s office in 

the nation. 

She has supervised over 200 Assistant U.S. Attorneys in prosecuting some of the most important national and international 

matters, including complex white collar and international terrorism 

cases. She is noted for having overseen prosecution of John Gotti 

and the terrorists responsible for the first World Trade Center 

bombings in 1993. 

She’s a fellow of the American College of Trial Lawyers and the 

International College of Trial Lawyers, a recipient of numerous 

awards, and is regularly ranked as a leading lawyer by directories 

that evaluate law firms. 

In addition, Ms. White served as Director of the NASDAQ Stock 

Exchange and on its executive, audit and policy committees between 2002 and February 2006. She’s also a member of the Council 

on Foreign Affairs. 

Ms. White received her bachelor’s of arts degree from the College 

of William and Mary and later attended Columbia University 

School of Law, where she received a JD. 

Currently, Ms. White is the chair of Debevoise and Plimpton’s 

225-lawyer litigation department. 

Ms. White, it’s a pleasure to have you before us. 

STATEMENT OF MARY JO WHITE, PARTNER, DEBEVOISE & 

PLIMPTON, LLP, NEW YORK, NEW YORK 

Ms. WHITE. Thank you very much, Senator Cardin. It’s my privilege to speak on behalf of the nomination of Judge Michael 

Mukasey. He is a man of great intellect and integrity, with an unVerDate Aug 31 2005 11:11 Sep 04, 2008 Jkt 039985 PO 00000 Frm 00221 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\39985.TXT SJUD1 PsN: CMORC
216 

swerving commitment to the rule of law. He is independent, fair 

minded, and has a wealth of relevant experience from his years of 

service on the bench, in the private sector, and as an Assistant 

United States Attorney in the Southern District of New York. 

There could not be, in my view, a stronger or better nominee to 

head the Department of Justice, particularly at this time, when the 

Department is in need of a strong and respected leader, as our 

country faces one of the greatest challenges in its history, to secure 

the Nation against the threat from Al Qaida and related terrorist 

networks and to do so consistently with the rule of law and our 

principles as a free and democratic society. 

I have no doubt that Judge Mukasey, if confirmed as Attorney 

General, will meet that challenge on behalf of the Department of 

Justice, effectively, intelligently and with sensitivity to all of the 

complex issues that are inherent to this unique challenge to which 

there are no easy or obvious solutions. 

I am equally confident that Judge Mukasey will be a superb 

leader of the Department in carrying out its many other important 

responsibilities and priorities that are vital to the rights, safety 

and well-being of the American people. 

The way I know Judge Mukasey is that when I served as U.S. 

Attorney in the Southern District of New York from 1993 to 2002, 

I had the privilege of observing him directly and through the eyes 

of my 200 Assistant United States Attorneys, and saw him supervise or preside over numerous cases with skill, with dignity and 

with absolute fairness and evenhandedness with respect to the parties before him. 

As a judge, he embodied all of those qualities of intelligence, temperament, preparedness and fairness that bring high credit and 

honor to our American system of justice. In each encounter I have 

had with Judge Mukasey, I have come away with deep admiration 

for him as a person, as a lawyer, and as a public servant. 

I, thus, join with the many others who strongly support his nomination, including representatives of the defense bar, as well as 

prosecutors. 

As has been mentioned by Senator Kyl, I believe, this morning, 

I did, also, observe Judge Mukasey preside over one of the most 

complex and difficult trials I think in our history, and that was the 

terrorism trial involving the head of the Al-Gama’a terrorist organization, Sheik Omar Abdel-Rahman and nine of his codefendants, 

who were charged with an horrific plot to blow up, in a single day, 

the tunnels connecting New York and New Jersey, the George 

Washington Bridge, the United Nations, and the FBI’s headquarters in Manhattan. 

In this day of terror trial, Judge Mukasey was called upon to 

deal with and decide novel and some of the most difficult issues 

ever faced by any court. He did so and he did so while keeping his 

eye on the primary ball in any trial, and that is to ensure a fair 

proceeding for all parties. 

What Judge Mukasey learned, substantively and procedurally, 

from this trial, I believe, will serve him very well as Attorney General, as he shapes and guides the Department of Justice’s role and 

policies in addressing the grave threat posed by radical Islamic terrorism. 

217 

Another daunting challenge that any Attorney General has to do 

and face is to oversee and manage the over 100,000 employees of 

the Department of Justice and its many programs and component 

parts. 

While Judge Mukasey, of course, has not been previously called 

upon to manage an organization of the kind and size of the Department of Justice, very few have, I believe he brings to that task both 

the right qualities and relevant experience. He is, first and foremost, a leader with credibility, who leads by example and motivates by example professionals to do the best work of which they 

are capable. 

He is organized, efficient, works extremely hard, and has the 

ability and judgment to prioritize and delegate wisely. As chief 

judge of the United States District Court in New York for 6 years, 

Judge Mukasey was called upon to manage what is our oldest and 

largest Federal court, with over 40 active and senior judges, 15 

United States magistrate judges, 11 bankruptcy judges. 

The Southern District of New York has one of the busiest and 

most complex dockets in the country, typically over 12,000 new filings, civil and criminal, each year. 

The chief judge in the Southern District of New York is ultimately responsible for, among other things, the budget, security 

issues, personnel, infrastructure, subcommittees on various issues 

affecting the court, litigants and juries, interagency communications, and docket administration. 

In addition to having responsibility for these issues, Judge 

Mukasey, as chief judge, guided the Federal court in the Southern 

District of New York from a paper filing system to the electronic 

case filing system and put in place the first emergency preparedness program for a Federal court. 

As it happened, Judge Mukasey was, fortunately, the chief judge 

of the Southern District of New York on September 11. His leadership during this time of extreme crisis has been accurately described by many as heroic. The Southern District of New York’s 

courthouses in Manhattan are located just a few blocks from where 

the World Trade Center stood. 

All of us working in the vicinity of the courthouse complex on 

September 11 personally witnessed the horror of that day and were 

required to respond to the physical and emotional issues of our 

staffs and then work to try to restore normal functioning in the 

aftermath of the most abnormal and jolting experience any of us 

had ever encountered. 

Judge Mukasey directed that the two Manhattan Federal courthouses be closed immediately, but kept the court running from the 

White Plains courthouse 30 miles north of the city. He then reopened the Manhattan Federal courthouse on September 18, 2001, 

fully for business, despite badly disrupted phone systems, computer 

systems, not to mention the emotional stress of the court’s employees. 

But as the district executive of the southern district who works 

for the chief judge observed, ‘‘Almost everyone who worked at the 

courthouse was back at their desk.’’ It was very important to come 

back downtown and to come back to work. 

218 

‘‘Everyone wanted to be together, to do our best to show that life 

would go on in New York.’’ Well, for the Southern District of New 

York, Judge Mukasey and the district executive staff he managed 

made that possible. 

In closing, I believe that however he is measured, Judge 

Mukasey will be a superb Attorney General. He will hit the ground 

running at the Department of Justice and deal effectively with its 

full range of priorities and problems. He will lead and inspire the 

career lawyers at the Department and in the field, as well as the 

United States Attorneys. 

He will remain the person he has always been, a dedicated, hardworking public servant, with the ability and humility to do an outstanding job, of which I’m sure we will all be proud. 

Thank you very much. 

Senator CARDIN. Thank you very much for your testimony here 

today. 

[The prepared statement of Ms. White appears as a submission 

for the record.] 

Senator CARDIN. We’ll now hear from Judge John Martin. Judge 

Martin, a member in Martin and Obermaier, LLC in New York 

City, was a United States District Judge in the Southern District 

of New York from 1990 to 2003 and worked very closely with Judge 

Michael Mukasey in that capacity. 

Prior to his judgeship, Judge Martin served as the United States 

Attorney for the Southern Division of New York from 1980 to 1983, 

worked as an assistant to the Solicitor General of the United 

States in Washington, DC, and worked in private practice. 

A native New Yorker, Judge Martin graduated from Manhattan 

College and Columbia Law School, and clerked for the Honorable 

Leonard P. Moore, United States Court of Appeals for the Second 

Circuit. 

Judge Martin has received awards for his outstanding service, including the Emory Buckner Award from the Federal Bar Counsel 

and the Judge Edward Weinfeld Award from the New York County 

Lawyers Association. 

Judge, it’s a pleasure to have you before our committee. 

STATEMENT OF JOHN MARTIN, MEMBER, MARTIN & 

OBERMAIER, LLC, NEW YORK, NEW YORK 

Judge MARTIN. Thank you very much, Senator Cardin. I’m honored to be here and very pleased to have the opportunity to express 

publicly my high regard and affection for the nominee for Attorney 

General, the Honorable Michael B. Mukasey. 

I’ve known Mike Mukasey for over 30 years, but I got to know 

him best when we served together on the Southern District of New 

York. Michael Mukasey is one of the most decent human beings I 

know and I think he possesses the qualities of intellect and humanity that we should want in a person to serve as Attorney General 

of the United States. 

We worked together—I was the chair of the Clerks Committee 

while he was chief judge, and we worked closely together during 

that time and I saw firsthand his compassion and his leadership. 

During that period, our clerk of the court died after a long battle 

with cancer. No one could have been more caring than Judge 

219 

Mukasey was of the concern for our clerk. No one could have been 

more compassionate in that situation. 

In addition, as Mary Jo has pointed out in some detail, he was 

an able leader, someone who sought advice, and who inspired those 

around him to do their best. 

He also had the unenviable task of trying to organize and lead 

40 United States district judges, each of whom was appointed for 

life. Judge Mukasey handled that task with grace and when he 

stepped down as chief judge, he left with the respect and admiration of all his colleagues. 

To some extent, no individual is qualified to be Attorney General, 

but the same can be said of United States district judge, because 

in both cases, you’re faced with areas of the law with which you 

have had no experience in private practice. The breadth of United 

States law is staggering and the Attorney General and the district 

judge have to deal with that. 

But you learn from that how to listen to experts, to weigh what 

they have to say, and to make judgments as to what is the right 

thing in the situation. 

In addition, and most important for someone who is to become 

the Attorney General, you learn that the law is above politics and 

that your personal political views have no place in the administration of justice. 

Michael Mukasey was a superb United States district judge and 

I have no doubt that, if confirmed, he will be a superb Attorney 

General. He possesses both the intellectual ability and the openness of mind that will serve him well in formulating the policies 

to be carried out by the attorneys in the Department of Justice. 

While I never had the pleasure of appearing before Judge 

Mukasey, I have had the pleasure of reading his opinions. He was 

a thoughtful and intelligent jurist. 

I also have one experience with him that I think demonstrates 

that he possesses one of the most important qualities for someone 

who would be the Attorney General, and that is the willingness to 

rethink a position. Several years ago, I decided a case, and I forget 

what the issue was, but there was only one opinion on point and 

it was by Judge Mukasey, and it was a rare case in which I disagreed with him. 

And I wrote an opinion and said I have great respect for Judge 

Mukasey, but I disagree with him here. A year or two later, he sent 

me a copy of an opinion he had just written in a similar case, in 

which he referred to his prior opinion and my opinion, and said, 

‘‘I’ve changed my mind. I think that the other is the right law.’’ 

I don’t know many judges who possess both the unique quality 

of self-confidence and humility that would allow them to admit 

publicly that they were changing a position. But that’s, I think, the 

quality that you have to have if you’re going to lead something like 

the Department of Justice and be faced on a daily basis with complex and difficult questions to decide. 

As you might expect, Judge Mukasey’s nomination has been the 

subject of considerable comment in the New York legal community. 

I can tell you that the unanimous view of everybody with whom I 

have spoken, friends of Judge Mukasey, former colleagues, and, I 

think, particularly important, lawyers who appeared before him, is 

220 

that Michael Mukasey will provide the type of leadership necessary 

to ensure that the American people have confidence that justice is 

being administered fairly and with integrity. 

Thank you very much. 

[The prepared statement of Mr. Martin appears as a submission 

for the record.] 

Senator CARDIN. Thank you all very much. I very much appreciate your testimony and I think it’s extremely helpful to our committee. 

Governor Thornburgh, I want to just ask you sort of a loaded 

question. If Attorney General Mukasey calls you the day after he’s 

sworn into office and asks advice what he should do as some of his 

first measures in order to restore the type of confidence, not only 

within the Department, which is in trouble today, but public confidence in the Department of Justice, what type of advice are you 

going to give him? 

Governor THORNBURGH. I don’t think I could do much better than 

the steps that he outlined in his testimony, which really involved 

taking charge of the Department, and I think that that’s the important thing that has to be done, to exhibit those qualities of leadership that I think he’s fully capable of, ensure that the present vacancies are filled expeditiously and with people of equal caliber to 

his own, to visit with the leadership of the Department personally, 

not just the leadership at the top, but in the various sections and 

units within the Department. 

It’s a massive operation and I, frankly, enjoyed, when I was in 

office, the institution of kind of brownbag lunches with the rankand-file staff lawyers to kind of get their view of what was going 

on. 

So that I think his task will be really to grab the reins of the 

Department, to make clear that he’s in charge, and to articulate, 

as often as possible, to the public, through the media and through 

appearances, his core values, expressed so eloquently during these 

hearings, that indicate his commitment to the rule of law, his commitment to fairness and justice, and, in every one of the operations 

that the Department carries out, make clear that he means business when it comes to reinvigorating the Department’s very important mission. 

Senator CARDIN. Would you be advising him that—there’s so 

many vacancies in the top positions in the Attorney General, Department of Justice. Would high on your list be to try to influence 

appointments quickly at these top positions, consistent with his 

priorities within the Department of Justice? 

Governor THORNBURGH. I would think that has to be a priority. 

I deal, from time to time, with the Department of Justice and lately 

it’s discouraging to find that there’s nobody home when it comes to 

key decisions being made. 

That’s the frustration of a practitioner, but I’m sure it’s also a 

frustration within the Department. And I think one of his highest 

priorities, which I’m sure he recognizes and will carry out, is to 

seek out advice and recommendations from his long and rich career 

of persons who can fill those key positions. 

221 

Obviously, that will be done in tandem with the White House 

and to see that those positions are filled and that the Department 

is in full running order just as quickly as possible. 

Senator CARDIN. Thank you. 

Admiral Hutson, I must confess that I concur completely in your 

testimony. I found it well articulated and some of the things that 

I think we try to say here in the Senate, but not quite as effectively 

as your testimony, and I thank you for that, because I think it 

added greatly to the record here. 

I also believe it won’t surprise anyone here to learn that Judge 

Mukasey did an excellent job for our Committee as far as the 

frankness of his answers, as far as assuring us of his independence. 

But there was one area that I think many of us are concerned 

about and that is whether there will be an effective voice within 

the Attorney General to speak out against the United States 

condoning any forms of torture. 

I say that because Judge Mukasey was very clear that torture is 

not allowed. It’s unconstitutional and against our laws. He made 

it very clear, also, that he would pursue holding accountable anyone who violates those statutes or the Constitution, even if that 

person was operating under the direction of someone in our military or in the White House. 

But then he was less than clear as to circumstances in which 

conduct would not fall within the prohibited areas, including some 

that are pretty obviously commonly considered to be torture. 

There’s also the international perception that the United States 

is playing on definitions here rather than leading and saying clearly that we won’t tolerate any forms of conduct that traditionally 

has fallen within torture. 

So I would like to get your assessment as to how you felt. I don’t 

know if you listened to the testimony or not. 

Admiral HUTSON. Yes, I did, Senator. 

Senator CARDIN. I would welcome your thoughts on that. 

Admiral HUTSON. Thank you, Senator. The United States, as a 

Nation, and the Attorney General, as an individual, has to be absolutely unequivocal. We can’t dance around definitions. We can’t 

dance around what is torture and what’s cruel and what’s inhumane and what’s degrading, as we have done. 

In the past, we never had to worry about that, because were 

never close to the line. We were always a long ways away from the 

line. But now we want to be right up next to the line. So, suddenly, 

what those definitions are becomes important. 

I think that is a terrible mistake for this country, because that 

same cleverness is going to come back to bite our troops who because it’s our troops who are forward deployed. 

When Eisenhower and Marshall and Senator Vincent and others 

looked at the Geneva Conventions, they were not looking at them 

as a limitation on our behavior. They were looking at them as a 

limitation on the enemy’s behavior. They were there to protect U.S. 

troops. 

That’s what we were thinking. Now, suddenly, we’re looking at 

ways to dance around it so that we can engage in that kind of activity and as then Legal Counsel Gonzales said, so that we can 

avoid the War Crimes Act. 

222 

My goodness, how did we get to that point? Torture is the method of choice of the lazy, the stupid, and the pseudo-tough, and that 

should not be the United States. No matter how you define torture, 

it’s unconstitutional, it violates statutes, it violates the UCMJ, it 

violates Common Article 3, it violates what your mother taught 

you, and it violates what you learned in kindergarten, and we 

ought not to be even close to it. 

Senator CARDIN. Well, I thank you for that answer. One of the 

hats I wear in the U.S. Senate is the Senate Chairman of the Helsinki Commission, which deals with the human rights dimensions. 

And, historically, the United States has used that forum to promote action against inhumane treatment and torture by so many 

countries in our regions. 

I find that I’m spending most of my time trying to answer questions about conduct in our own country, whether it’s Guanta ́namo 

Bay and the detaining of individuals there or whether it’s the signing statements of the President on torture or whether it is dealing 

with the way that we treated prisoners in Afghanistan and Iraq. 

So I agree with you, I think we’ve lost our standing internationally on this issue and now that when we equivocate on definition, 

it is really subject to scrutiny and concern by the international 

community. 

Admiral HUTSON. May I make one more point, sir? Other than 

perhaps rack and thumb screws, waterboarding is the most iconic 

example of torture in history. It was devised, I believe, in the Spanish Inquisition. It has been repudiated for centuries. 

It’s a little disconcerting to hear now that we’re not quite sure 

where waterboarding fits in the scheme of things. I think we have 

to be very sure where it fits in the scheme of things. 

Senator CARDIN. Well, I am hopeful that once Judge Mukasey becomes more familiar—he didn’t seem to be familiar with that. I 

hope during the question-and-answers that will still happen as part 

of the confirmation process, that we can get a clear view from the 

nominee that that is clearly a prohibited practice under not only 

our Constitution and our laws, but international standards of inhumane treatment. 

So I agree with you and I hope that we’ll get that clarified. 

Professor Johnsen, I want to go back to a statement you made 

about the release of the opinions that have been made from the Office of Legal Counsel. 

Senator Specter, I thought, was pretty articulate and persuasive 

that if the U.S. Senate, if the Congress is to do its oversight, that 

we have to get access to the fundamental documents controlling activities within the executive branch. 

And if there’s sensitivity to some of these documents, then we’ll 

take it in a closed session, but that we need to have access to what 

is guiding executive actions. 

You were in that office. Are we being unreasonable in our request? Will this put an unreasonable restriction on the prerogatives 

of the President or the executive branch? 

Ms. JOHNSEN. Absolutely not. The issue, of course, of interrogation and torture, I think, is the perfect one in which to explore this. 

The Office of Legal Counsel, frankly, destroyed our Nation’s reputation on the issue of torture with that infamous 2002 opinion. 

223 

Congress responded very appropriately, in my view, with the Detainee Treatment Act, which made clear that no torture, no cruel, 

inhuman, or degrading treatment was permitted anywhere in the 

world by the United States. And when the President signed that 

into law, he had a reservation in the signing statement that caused 

Senator McCain to call him on it. 

Now, we hear that, I think, astonishingly, the Office of Legal 

Counsel, if reports are correct, has issued two more secret opinions 

interpreting that statute. How can Congress do its job? How can 

our constitutional democracy work if the President is interpreting 

statutes in ways that are flatly inconsistent with what Congress intended and with the words of the statute? 

How can Congress oversee the executive branch or legislate if it 

cannot get a straight answer from the President, from the Department of Justice, when asked, ‘‘How are you interpreting cruel, inhuman, degrading? How are you interpreting torture? ’’ 

Let us see those legal opinions and if they do contain material, 

as you said, that would, in some way, jeopardize national security, 

that can be submitted in confidence to the Senate. 

I actually am not happy with excessive reliance on that option, 

I have to say. I think on this issue, the public needs to know how 

the President is interpreting these laws, regulating coercive interrogations. And so I would say if there are any portions that have 

to be protected, kept confidential, then a redacted version or a specially prepared version has to be provided to the American public 

so that we know and the world knows what our policy is on coercive interrogations. 

Senator CARDIN. Well, I agree with you on that. I think it should 

be. I’m just trying to get to at least be able to evaluate the documents and if we have to establish procedures. 

I don’t necessarily disagree with Senator Specter. If we have to 

make accommodations in order to get this matter moving forward, 

I think it’s worth making accommodations so that we don’t run into 

a constitutional challenge that could take too long in order to resolve. 

But I agree with you. I see no reason why this information cannot be made available to the public, if necessary, in a redacted 

form. It seems to me that should be able to be accomplished. 

There was one other issue that was brought up that you may 

have a view on or maybe other members of the panel, and that’s 

an issue about the contempt citation that Judge Mukasey talked 

about. 

It seems to me that if there is a challenge, that we need certain 

documents, and the President believes that that is a part of his executive privilege, there needs to be a way that that can reach the 

courts. The only way that I know is for Congress—and it’s a very 

serious matter for us to suggest the contempt citation and to move 

forward with it and get it completed. 

But at that point, it seems to me there should be little discretion 

within the Department of Justice in convening the jury, grand jury, 

and issuing the necessary indictments. 

Am I wrong on that? I mean, Judge Mukasey seemed to be very 

indefinite about whether he would—he would make an independent 

judgment as to whether the individual acted reasonably. Well, if 

224 

you’re in the executive branch, following what the President says, 

that’s acting pretty reasonably, to me, even though the President 

may not be acting reasonably. 

Ms. JOHNSEN. Right. You might remember that Judge Mukasey 

actually cited an OLC opinion from the time I was there, as well 

as from earlier administrations, on this point. And so it is a very 

difficult matter. I think that there should be a way to get it before 

a court. 

Interestingly, Judge Mukasey said if the Department of Justice 

has issued an opinion to the President saying it’s appropriate to assert executive privilege, then there’s a very serious problem with 

the Department of Justice turning around and prosecuting somebody, and I agree with him on that. 

But I think the interesting thing about that is the Department 

of Justice should not have advised the President in the first place 

to assert executive privilege. I think that’s where the problem is. 

The President has a constitutional obligation to accommodate 

Congress’s needs for information and, on this particular issue, the 

President has not done so and I don’t think the President has received accurate legal advice from the Department of Justice. 

But that’s the point at which I think the problem occurs. I do 

agree with Judge Mukasey that it is difficult and I think a due 

process problem to turn around and prosecute somebody for doing 

what the Department of Justice said that person should do in the 

first place. 

The real problem, I think, is an erroneous assertion of executive 

privilege in the first place and not accommodating Congress’s compelling need for information on this issue. 

Senator CARDIN. Again, I think that’s the right analysis. And 

Judge Mukasey did say that he would weigh in pretty heavily as 

to whether executive privilege should be asserted or not, and I 

agree with you. I don’t believe that was done by the Attorney General in the assertions that were made in regards to the U.S. Attorney firings and other issues in which we have subpoenaed information. 

So, hopefully, the judge, as Attorney General, will be in the beginning stages and giving advice to the President, which I hope the 

President will follow, which leads to the question as to whether 

Judge Mukasey has the independence and strength to stand up to 

a pretty strong President, pretty strong-willed President. 

There’s a lot of things you can say about our President, but he 

is strong-willed. 

So let me ask, Ms. White, if I could, and Jude Martin, you know 

him. How do you think he’s going to fare standing up to a President who wants to do certain things that perhaps the judge thinks 

are inappropriate? 

Ms. WHITE. If the circumstance presents itself, my money is on 

Judge Mukasey. He’s one of the most independent, straightforward, 

strong individuals I know, totally principled. So if it comes to that, 

plainly, he will also be clear in his advice as to the right path, but 

if it comes to that, I have no doubt whatsoever he’ll stand up. 

Judge MARTIN. I think serving as United States district judge, 

you’re used to getting—understanding that people have to obey certain laws and that you’ve got to have the power to enforce them, 

225 

and I don’t think that Mike Mukasey is going to have any problem 

asserting his own views as to what’s right and wrong. 

Senator CARDIN. Well, I think restoring the independence of the 

Department of Justice is the first order of business. With the political interference, which has been acknowledged and under current 

investigation, that’s going to be the first order of business. 

The second is being able to give independent advice and that’s 

going to be another challenge. 

Third is establishing the type of priorities and, Mr. Shaw, I 

couldn’t agree with you more about the disappointment with the 

Civil Rights Division, on the 50th anniversary of its creation. The 

number of cases that have been brought in regards to the voting 

rights to remove obstacles to participation, the disparate cases that 

have been brought, the few numbers in housing and employment 

have all been, I think, just shocking, in a way, that we’ve had a 

tradition, and, of course, the type of cases that the Civil Rights Division has entered have been on the wrong side, in my view, particularly when you look at the historic role of the Civil Rights Division in promoting rights for all individuals. 

So I hope that you can perhaps give us some guidelines as to 

what we should be looking for from the new Attorney General as 

it relates to the type of cases that you would like to see priority 

given to. 

Mr. SHAW. Senator, let me, first, correct something I may have 

said. I talked about the Georgia voter ID case. I might have said 

that that was before the Supreme Court. If I did, what I meant to 

say was that issue was up before the Supreme Court, but the issue 

is actually presented in a case out of Indiana. 

With respect to what the new Attorney General could do, there 

are a number of things. I think there needs to be, first, at least 

within the Civil Rights Division, but throughout the Department, 

a restoration of hiring in an apolitical way of career attorneys. I’m 

not talking about the political appointees, obviously. But I think 

that’s vitally important to restore the Civil Rights Division and the 

Department’s legal staff generally, to what they once were. 

I also think that it would be a good thing for the Attorney General and the Assistant Attorney General, whoever that might be, 

of the Civil Rights Division to have some dialog with some of the 

people who ran the Civil Rights Division under prior administrations, under both parties, as well as some of the career attorneys 

who have left the Department to get a sense of perhaps how the 

Department could operate to restore its credibility and integrity. 

With respect to substantive issues, we find ourselves in disagreement with the Department and in a position with the Department 

as adversaries, as often, if not more often, than we are allies. I 

don’t expect that we’re going to agree on every case, but to take the 

Seattle and Louisville cases, for example, the issue of voluntary 

school integration decided in June by the Supreme Court, there, 

the Justice Department, for the first time since the 1950s, since 

Brown, effectively came down against school desegregation, against 

integration. 

That is a reversal of historic proportions with respect to the Justice Department’s role, and there are other instances in which 

we’ve been in adverse positions, where I think we ought not to be. 

226 

Of course, we each have our point of view, but the Justice Department really has gone astray. 

As I said, I think that the Department needs to revisit the cases 

on behalf of African-Americans and Latinos that are out there that 

they’re not bringing right now, that they’re consciously not bringing. 

It’s not that those cases aren’t there, because we’re asked to represent people in those cases all the time and we don’t have the resources that the Federal Government has. We can’t take on most 

of those cases. The EEOC still is overloaded with complaints. 

So the cases are there. The question is what the Justice Department’s role is going to be. So that can be turned around, I think, 

fairly quickly if the lawyers are unleashed to do the investigations 

that they’ve wanted to do, that they have done, and if their suggestions or advice are overridden, as they will be sometimes, I suppose, it ought to be done on the basis of a legal analysis that has 

integrity and not on something that either gives the perception or 

the reality of a political decision. 

Senator CARDIN. And I think, quite frankly, Judge Mukasey was 

comforting in his comments in that regard and, clearly, the failure 

to follow the advice of career attorneys, the reassignment of the individual who was in charge of the election issues in the Civil 

Rights Division, all that was shown, political interference, not just 

not following the advice of career attorneys. 

It had the imprint of a political agenda more so than a change 

in a philosophical approach and Judge Mukasey, I think, was pretty clear that he won’t tolerate that type of activity. 

We need to make sure, in fact, that gets translated to those who 

are at the Department of Justice in critical positions, and we welcome your review of what happens in the Department of Justice. 

We thank you for your role in that regard. 

Mr. Canterbury, I want to ask you about another aspect of the 

Department of Justice, which is handling the criminal agenda. Several of the Senators asked questions about violent crimes. You have 

seen Judge Mukasey as a prosecutor and as a judge and I would 

like to get your assessment as to the comfort levels that he will be 

balanced and fair in prosecuting criminal activities, which is a significant part of the agenda of the Department of Justice, or he’s supervising them. 

Mr. CANTERBURY. We represent 22,000 members in New York 

State and in our conversation with Federal, State and local officers 

in that judicial district, our review of cases that the judge has reviewed, we’re very pleased with that. 

Also, obviously, the Attorney General also has oversight of the 

FBI and ATF and other law enforcement organizations that we 

deal with on a daily basis and we feel the experience that he has 

will help to foster State and local cooperation. 

There’s been some great strides in the last eight or 10 years in 

local and State cooperation, but it’s pretty obvious to us, from the 

judge’s no-nonsense approach, that that will continue and we look 

forward to that. 

Senator CARDIN. Thank you for that. I was just checking with 

our staff, because they were supposed to start a vote at 5, which 

they didn’t start, which I’m thankful for. 

227 

I want to, last, ask one other question, which is an open-ended 

question for—I’ll give any of you an opportunity to comment, if you 

like. 

That is, trying to summarize the concerns raised during the confirmation hearings, I think I would put them probably in three categories. There were other issues raised, I’m not over-simplifying it, 

but it’s the ability of Judge Mukasey to be an independent Attorney General; obviously, being in the Bush cabinet, but being an 

independent voice on behalf of the American people. 

Second, to not tolerate at all any political activities that would 

relate to the hiring or promotion or firing of career attorneys or involved in influencing decisions on criminal investigations in any 

way. 

And the third would be the priorities of the Department, whether 

this Department will carry out its historic role to protect the rule 

of law and to protect the civil liberties of the people in this country 

and move ahead on the civil rights agenda and deal with those 

types of issues. 

So this is somewhat of an open-ended question. If there’s anything more you would like to add to the record in regards to those 

issues, I would welcome an opportunity to give you that chance 

now. 

Judge Martin? 

Judge MARTIN. Let me start just with a question of the whole political nature. Judge Mukasey hasn’t come out of the political system. He was selected by Senator D’Amato’s traditional selection 

committee, which was set up to be independent and to pick people 

on the merits. 

So he doesn’t come here, I think—and I think he was nominated 

for this position because of his stature in the legal community, not 

because of his Republican credentials. 

So I don’t think he comes to this as a political figure. He comes 

to this as a man of independence, a man of stature, a man of great 

intellect, and I think those qualities are what he will apply as the 

Attorney General. 

He is not a politician, and I don’t mean to use that as a bad 

phrase, but he doesn’t come out of that background. He comes out 

of the rule of law. That’s what he did as a judge. That’s what I 

think he will do as Attorney General. 

Ms. WHITE. Senator, also, if I may just add to that quickly. He 

also comes out of the tradition of the Southern District of New 

York U.S. Attorney’s office, where independence and being apolitical are—you’re imbued with that from day one. 

The district and the office is known not so fondly in Main Justice 

as the Sovereign District of New York, but mostly I think that’s 

very good and I think it’s very good in terms of what it says about 

how he will be as Attorney General. 

Governor THORNBURGH. May I offer just three observations that 

were reassuring to me in my reading of the record of these hearings? 

One, on the issue of independence, of course, an Attorney General is not independent in the sense that a justice minister in a European system might be. 

228 

But the other side of the coin in independence is a willingness 

to stick by one’s beliefs and principles and, if necessary, resign 

when those conflicts or principles become so intense that he can’t 

continue, and I think he’s clearly indicated that he recognizes that. 

Second, with regard to political activities, the most reassuring 

thing I heard was in his introductory statement, where he indicated that the targeting and timing—and the timing is important 

sometimes—of criminal prosecutions would be made without any 

consideration of the political implications involved, and this applies 

largely in corruption cases or in high profile cases. 

Third, on priorities, obviously, the priorities of the Department 

of Justice are set by the President, but I think in Judge Mukasey, 

you clearly have someone who is willing to speak his mind and be 

an advocate for priorities that he thinks are proper and correct for 

the administration and his voice will be heard. 

So on each of the matters that you raised, I’m reassured by his 

testimony and would expect that he would satisfy you as to his 

ability to meet those concerns. 

Senator CARDIN. Admiral? 

Admiral HUTSON. Senator, if I could take a small turn on one of 

your very nice lists of priorities, and that is independence. 

I think it’s not only the independence of the Attorney General, 

but that the Attorney General, as the chief law enforcement officer, 

sets the tone for independent legal advice down the chain of command, if you will, and all those government attorneys need to be 

able to give independent advice. 

We have seen examples of where the advice of the attorneys 

within the Department of Defense, the judge advocates general, 

was ignored, not solicited, not respected, and we got ourselves in 

a lot of trouble and it wasn’t until the U.S. Senate called hearings 

and the Senate Armed Services Committee called the JAGs, asked 

for their personal opinions about what constituted torture and 

whether the Geneva Conventions applied and so forth, that the 

American public really heard their independent views on that. 

And I think that it’s very important for—particularly in light of 

the recent past, it’s very important for Judge Mukasey to ensure 

that everybody understands that the opinions of the subordinate 

lawyers doesn’t always have to be followed, but they should be 

heard and respected. 

Senator CARDIN. Thank you. 

Ms. JOHNSEN. I’d like to second everything Admiral Hutson just 

said. It’s very in line with what I’d like to say in my closing comment. 

That is, an independent Attorney General is necessary, but not 

sufficient. We do need, as I mentioned earlier, aggressive oversight 

by this Committee and just this month you had Jack Goldsmith, 

former OLC head from the Bush administration, saying the same 

thing, that if there had been more oversight, the Bush administration would have made fewer mistakes and it was only when there 

was oversight that there actually was deliberation and debate within the administration. 

And so I’m very encouraged by what I hear from others on this 

panel and some of what I’ve heard today about Judge Mukasey’s 

independence, but that will not be enough, unless there is the presVerDate Aug 31 2005 11:11 Sep 04, 2008 Jkt 039985 PO 00000 Frm 00234 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\39985.TXT SJUD1 PsN: CMORC
229 

sure from this Congress on the administration and, again, an insistence on greater openness so that we know what the executive 

branch is doing. 

Senator CARDIN. I thank you for that comment. I am proud of the 

leadership of Senator Leahy and Senator Specter in this Committee, which I believe has been a model of the right role for the 

legislative branch, putting aside partisan differences to make sure 

that the oversight function, in fact, was effective. 

As we have found out, there were very serious issues that needed 

the public attention and I think led to where we are today. So I 

think you’re exactly right. 

The framers had it right with the separation of the branches and 

let’s make sure we carry out our responsibilities here in the U.S. 

Congress. 

Mr. Shaw? 

Mr. SHAW. Senator, I was sitting here thinking about my time 

in the Department many years ago and I think that every lawyer 

within the Department of Justice knows that the Attorney General 

is a member of the cabinet and, in a sense, that’s a political position. 

But there’s political and there’s political. I think, if I remember 

correctly, what we wanted was to know that the line would be 

drawn in the right place when it had to be drawn and that our superiors would listen to our suggestions and our analysis, even 

though they made the call, but they wouldn’t make it purely on political grounds. 

And, also, that the Attorney General and the Assistant Attorneys 

General, when need be, would be willing to go to bat for the line 

attorneys and for, effectively, the rule of law within the Department. 

I think that’s all one can want and ask for. I do know, because 

many of us stay in contact with or work with the line in the Department, that the esprit de corps is as low as it has been in any 

time that I can remember. The Department’s attorneys are demoralized. And I think one of the most important challenges that the 

next Attorney General will face is to restore the sense of—well, of 

confidence on the part of the career attorneys that they’re part of 

something that has integrity. 

That’s the sense in which I think the attorneys expect the Attorney General to be apolitical and a political appointee should be 

apolitical: that they, above all else, make their decisions based 

upon an interpretation of the law that has integrity. 

Senator CARDIN. Well, I thank each of you for being here. I think 

you’ve added to the record in a way that I think is important in 

the confirmation process for an Attorney General of the United 

States and I found it extremely helpful, to me, to try to put the 

puzzle pieces together, because we are clearly all with the same objective and that is to see the Department of Justice move forward 

in its traditional respect from the American people and it is an important part of the administration. 

And I think that these confirmation hearings have helped us in 

that regard and you all have been part of that and we thank you 

very much for your presence, your testimony, and, most imporVerDate Aug 31 2005 11:11 Sep 04, 2008 Jkt 039985 PO 00000 Frm 00235 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\39985.TXT SJUD1 PsN: CMORC
230 

tantly, for your patience as we’ve been trying to figure out when 

this panel would, in fact, be heard. 

The hearing record will remain open for one week in order to be 

able to supplement the record, and the Judiciary Committee now 

stands adjourned. Thank you all. 

[Whereupon, at 5:20 p.m., the committee was adjourned.] 

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

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471 


39985.328
472 


39985.329
473 


39985.330
474 


39985.331
475 


39985.332
476 


39985.333
477 


39985.334
478 


39985.335
479 


39985.336
480 

Æ 


39985.337