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DEPARTMENT OF JUSTICE 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

FEBRUARY 7, 2008 

Serial No. 110–119 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

(III) 

C O N T E N T S 

FEBRUARY 7, 2008 

Page 

OPENING STATEMENTS 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Chairman, Committee on the Judiciary ..................... 1 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Member, Committee on the Judiciary .................... 2 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Ranking Member, Committee on the Judiciary ......................... 3 

WITNESS 

The Honorable Michael Mukasey, Attorney General, U.S. Department of Justice 

Oral Testimony ..................................................................................................... 4 

Prepared Statement ............................................................................................. 8 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Committee on the 

Judiciary ............................................................................................................... 83 

Prepared Statement of the Honorable Darrell Issa, a Representative in Congress from the State of California, and Member, Committee on the Judiciary ......................................................................................................................... 88

Prepared Statement of the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Member, Committee on the Judiciary ......................................................................................................................... 88

Letters dated February 7, 2008, from the Honorable Sheila Jackson Lee 

to the Honorable Michael B. Mukasey, Attorney General of the United 

States .................................................................................................................... 89 

H.R. 4545, ‘‘A bill to target cocaine kingpins and address sentencing disparity 

between crack and powder cocaine’’ ................................................................... 94 

Letter dated January 31, 2008, from the Honorable John Conyers, Jr. to 

the Honorable Michael B. Mukasey, Attorney General of the United States . 118 

Post-Hearing Questions posed by the Honorable John Conyers, Jr., the Honorable Robert C. ‘‘Bobby’’ Scott, the Honorable Linda T. Sa ́nchez, the Honorable Keith Ellison, and the Honorable Robert Goodlatte to the Honorable 

Michael B. Mukasey, Attorney General of the United States .......................... 122 

Letter dated June 2, 2008, from Keith B. Nelson, Principal Deputy Assistant 

Attorney General, Office of Legislative Affairs, U.S. Department of Justice, 

providing documents in response to post-hearing questions posed by the 

Honorable Robert C. ‘‘Bobby’’ Scott .................................................................... 163 

(Due to its volume, the document production is not printed in the hearing 

record but is on file with the House Committee on the Judiciary) 

Answers to Post-Hearing Questions provided by the U.S. Department of Justice, dated July 16, 2008 ...................................................................................... 164 

Answers to Post-Hearing Questions provided by the U.S. Department of Justice, dated July 18, 2008 ...................................................................................... 196 

(1) 

DEPARTMENT OF JUSTICE 

THURSDAY, FEBRUARY 7, 2008 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 11:05 a.m., in Room 

2141, Rayburn House Office Building, the Honorable John Conyers, 

Jr. (Chairman of the Committee) presiding. 

Present: Representatives Conyers, Berman, Nadler, Scott, Watt, 

Lofgren, Jackson Lee, Waters, Delahunt, Wexler, Sa ́nchez, Cohen, 

Johnson, Sutton, Weiner, Schiff, Davis, Ellison, Smith, Sensenbrenner, Coble, Goodlatte, Chabot, Lungren, Cannon, Issa, Forbes, 

King, Feeney, Gohmert, and Jordan. 

Staff present: Sam Sokol, Majority Counsel; and Crystal Jeziersky, Minority Counsel. 

Mr. CONYERS. Good morning. 

The Committee will come to order. 

I am pleased to welcome the Attorney General of the United 

States, Mr. Michael Mukasey, who oversees what I consider to be 

the most important agency in the Federal Government, with jurisdiction over voting rights, civil rights, criminal and civil justice, 

antitrust, intellectual property enforcement, and bankruptcy, to 

name the major areas. 

He assumes a very large responsibility, and I look forward to a 

productive relationship between him and the Members of this Committee. 

At the outset, I note that the Attorney General did not respond 

in advance to the five areas of questions I outlined in my letter to 

him of last week, because we know how truncated the 5-minute 

rule is, with all of our Members and him. 

The 5-minute rule is always the more efficient mechanism for 

disclosing information, while written questions submitted after a 

hearing takes months to respond to. And so I hope that we receive 

timely written responses to any questions that may need further 

expansion on after the hearing. 

I would like to emphasize the areas that I would point to the Attorney General as very important to me. 

I continue to be frustrated by the Administration’s failure to fully 

and frankly address our Nation’s position on the odious practice of 

waterboarding. 

During confirmation proceedings, Mr. Mukasey was asked about 

waterboarding and said he would examine the underlying memos 

and underlying facts about what this country has done and try to 

explain it to Congress. But after his confirmation he has not stated 

2 

whether waterboarding is torture or illegal, saying there are some 

circumstances that current law would appear to prohibit and other 

circumstances would present a far closer question. 

Just this week, we learned that the Central Intelligence Agency 

agents have engaged in waterboarding, and that Federal prosecutors appear to have known about the destruction of CIA interrogation tapes for more than a year before taking any action. 

My question today is, will the Attorney General tell us, today, 

here, whether he is willing to conduct a criminal investigation into 

these confirmed incidents of waterboarding? 

Now, no issue is more important to most of us on this Committee 

than the voting rights and fair access to the ballot box. 

I have high hopes that the department and this Committee can 

work together to ensure that the 2008 elections are as fair and 

open—more so than any in our history. 

We already have concerns about voting problems and questionable tactics in the ongoing presidential primaries. And I hope that 

the Attorney General will tell us and work with on exactly what 

we all need to do together, his Committee—his department, our 

Committee, Senate Judiciary Committee, to set up the comprehensive working operation with the Voting Section in his department, 

and staff, so that we can ensure that every available resource is 

being deployed to protect the most valued right in a democracy, to 

cast the vote and have it counted. 

I yield a minute to Bobby Scott, Chairman of the Crime Subcommittee. Then I will return to the Ranking Member, Mr. Smith. 

Mr. SCOTT. Thank you. Thank you, Mr. Chairman. And I thank 

the Attorney General for being with us today. 

And I want to express my appreciation for your willingness to cooperate with us and attend this hearing. 

I talked to you yesterday, and indicated that we had a hearing 

recently about a young lady that was raped in Iraq that needed to 

be investigated. We had a hearing on that, and the Justice Department did not send a representative. 

I understand that we are going to do better than that in the future. We need to look into civil rights, religious discrimination, to 

make sure that Federal contractors are not able to discriminate 

based on religion and other civil rights cases where—and we talked 

yesterday about a case in North Carolina where a person was held, 

apparently, without with a trial date for well over a year. We need 

to make sure that the Justice Department actually looks into cases 

like that, and we can count on you and the Department of Justice 

in looking into cases like that to make sure that civil rights are not 

being violated. 

Human trafficking cases need to be prosecuted. 

And, finally, crack/powder cocaine disparity—the Sentencing 

Commission unanimously agreed that existing crack/powder disparity was unjust, that it was racially discriminatory. 

And I just wanted to quote what a Republican-appointed judge, 

who indicated that, ‘‘We need to have faith in the American judicial 

system to do all that we can do to ensure that violent offenders are 

not released early and to address fundamental injustices in the 

criminal justice process.’’ Judges—he mentions, ‘‘Judges can be reVerDate Aug 31 2005 13:36 Oct 21, 2008 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 H:\WORK\FULL\020708\40741.000 HJUD1 PsN: 40741
3 

sponsible in exercising their discretion to make sure that the wrong 

people are not released.’’ 

Over the next 7 to 10 years, 20,000 people will be released under 

this adjustment. Six hundred thousand people are released from 

jails and prisons every year. 

Mr. CONYERS. The gentleman’s time has expired. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. CONYERS. I am pleased now to turn to our Ranking Member, 

Lamar Smith of Texas, for his opening statement. 

Mr. SMITH. Thank you, Mr. Chairman. 

General Mukasey, first of all, congratulations to you on your confirmation. And, also, welcome to your first appearance before the 

House Judiciary Committee. 

Last year was a difficult year for the Department of Justice. It 

was a year during which the department and its dedicated employees were shrouded by the controversy created after the resignation 

of several U.S. attorneys. 

Responding to the U.S. attorneys resignations, the Committee 

conducted vigorous oversight, holding 15 hearings, interviewing 20 

Administration officials, and reviewing 8,500 pages of documents. 

Yet, at the end of the review, all we found was that the Administration officials had already admitted poor management of a legal 

process. 

The Committee last year spent more time on White House personnel investigations than on national security, violent crime and 

sexual predators combined. 

Preventing another terrorist attack is the most critical work facing the department today. Just this week, the director of national 

intelligence, Admiral Michael McConnell, warned that Al Qaida is 

increasing its preparations for an attack on the United States. Terrorists planned an attack on the White House as recently as 2006. 

The Foreign Intelligence Surveillance Act, FISA, is critical to our 

ability to prevent terrorist attacks on our Nation. Today the Senate 

continues its consideration of legislation to modernize FISA. This 

bipartisan bill, negotiated with the Administration, updates our intelligence laws to mirror today’s technologies and provides liability 

protection to the telecommunication companies. 

The Protect America Act expires next week. The Senate must 

pass a strong bipartisan bill. And when they do, the House must 

act quickly to pass the bill and send it to the President. 

This is not the time for partisanship. This is the time for responsible action. 

Additionally, I look forward to hearing from you on the progress 

of the National Security Division, created by the Patriot Act reauthorization to streamline the department’s counterterrorism work. 

The Justice Department also plays an important role in protecting the American economy. Counterfeiting and piracy of intellectual property cost American jobs, reduces American prosperity, 

and threatens the existence of American companies. I look forward 

to hearing from you regarding your efforts in this area as well. 

As we enter a presidential election year, we are reminded of the 

department’s role in enforcing Federal election laws. We must 

maintain the integrity of our election process by ensuring that all 

4 

qualified citizens are eligible to vote and that these votes counted— 

are counted fairly and honestly. 

We must also ensure that individuals who are not eligible to vote 

do not exploit this essential freedom. 

I realize that enforcing election laws opens the department up to 

criticism from those who would claim voter intimidation. But our 

right to vote is meaningless unless it is legal and protected. 

The department must vigorously preserve the integrity of the 

election process by enforcing the election laws Congress has enacted. 

I am also very concerned by the March 3 deadline you mention 

in your statement. If Congress does not act now, 1,600 convicted 

crack cocaine dealers will be eligible for immediate release into our 

communities nationwide. Many of these criminals are dangerous 

repeat offenders who possessed firearms during the commission of 

their crimes. 

The early release of these individuals poses a significant threat 

to Americans’ neighborhoods. And that is why last December I, 

along with eight of my Republican colleagues on this Committee, 

introduced legislation to amend the Federal sentencing guidelines. 

A strong Justice Department is in the best interest of the American 

people. The Committee must refocus its efforts to help the brave 

men and women of the Justice Department to better enforce the 

law, protect America from future attacks, fight crime, and ensure 

justice for all. 

General Mukasey, I look forward to hearing from you regarding 

the state of the department, and to working with you to ensure 

that the department functions at the highest level possible. 

And again, thank you for being here today. 

Mr. CONYERS. Thank you, Lamar Smith. 

Attorney General Mukasey brings a long, distinguished background to the Department of Justice: a Yale Law School graduate, 

a longtime practicing attorney, a Federal prosecutor, and then a 

member of the firm of Patterson, Belknap, Webb and Tyler. 

In 1988, he was appointed a trial judge in the Manhattan Federal court by President Reagan, and served in that post for 18 

years, including 6 of which he was the chief judge of the district. 

On his retirement, he returned the practice, only to be called 

back to public service and was nominated by President Bush and 

confirmed by the United States as Attorney General in the fall of 

2007. 

On behalf of the entire Committee, we welcome you to our hearing and encourage you to respond to as much of the questions that 

have been put to you already as you can. 

TESTIMONY OF THE HONORABLE MICHAEL MUKASEY, 

ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE 

Mr. MUKASEY. Thank you, Mr. Chairman. 

Chairman Conyers, Ranking Member Smith and Members of the 

Committee, thank you for the opportunity to testify about the important work being carried out by the men and women of the Department of Justice and for permitting me to highlight the key 

challenges that lie ahead. 

5 

In the short time that I have been at the department, I have confirmed what I hoped and expected to find: men and women who are 

talented, committed, and dedicated to fulfilling its historic mission. 

That mission is to advance justice by defending the interests of 

the United States according to the law; to protect Americans 

against foreign and domestic threats; to seek just punishment for 

those who violate our laws; to assist our state and local partners 

in combating violent crime and other challenges; and to ensure the 

fair and impartial administration of justice by protecting the civil 

rights and liberties that are the birthright of all Americans. 

These values are central to the mission of the department, and 

defining features of our democracy. And I thank the Committee for 

its efforts to help realize them. 

During my tenure, I have sought opportunities to work with Congress to ensure that the department is provided the statutory tools 

necessary to fulfill the department’s crucial mandate. 

I have also sought to keep Congress apprised of the department’s 

activities and policy positions, where possible, and to respond to 

the Committee’s oversight requests in a spirit of inter-branch comity that respects the institutional interests of the department and 

the Congress. 

I pledge to maintain this commitment throughout my tenure as 

Attorney General of the United States. 

I would like to focus on two crucial legislative issues pending before Congress: the pending expiration of the Protect America Act 

and the pending effective date of the United States Sentencing 

Commission’s decision to make a wide range of violent drug offenders eligible for a retroactive reduction of their sentence. I hope to 

work with Members of this Committee to address each of these 

problems. 

As this Committee is aware, the Protect America Act will soon 

sunset, but threats to our national security will not expire with it. 

The statements and orders of Al Qaida and related organizations 

do not come with a sunset provision. 

I urge Congress to pass long-term legislation to update the Foreign Intelligence Surveillance Act, known as FISA, to ensure that 

this statute addresses present and emerging threats to our national 

security. 

S. 2248, the FISA Amendments Act of 2008, includes tools contained in the Protect America Act that have allowed us to close 

critical intelligence gaps. 

In addition, this legislation protects telecommunications companies now under legal assault because they are believed to have responded to the government’s call for assistance in the aftermath of 

September 11. 

The Protect America Act is set to expire in just days and it is 

vital that Congress enact long-term FISA modernization legislation, with retroactive immunity, before that Act expires. 

S. 2248, which is a strong, bipartisan bill, reported out of the 

Senate Select Committee on Intelligence by a 13-2 margin, is a balanced bill that includes many sound provisions that would allow 

our intelligence community to continue obtaining the information it 

needs to protect the security of America while protecting the civil 

liberties of Americans. 

6 

Modernization of FISA is a critical part of this effort. The department will have grave concern about any legislative proposal that 

ignores the continuing nature of the terrorist threat, that denies 

the intelligence community and law enforcement the long-term 

statutory tools necessary to defend the United States. 

The department respects the oversight authority of Congress. 

But sunset provisions create uncertainty in the intelligence community and stifle the development of stable partnerships necessary to 

detect, deter and disrupt threats to our national security. 

It is also critical that Congress provide liability protection to 

electronic communication service providers in enacting a reauthorization bill. 

Contrary to the assertions of some, the legal protections contained in the S. 2248 bill do not confer blanket immunity. Rather, 

protections apply in limited and appropriate circumstances as reviewed by a court. 

We believe this approach represents the best way to provide retroactive immunity against these claims, and urge Congress to pass 

legislation containing these protections. 

While we appreciate the work of the House of Representatives in 

holding hearings and considering the challenges posed by the outdated provisions of FISA, the bill passed by the House, H.R. 3773, 

falls far short of providing the intelligence community with the 

tools it needs to collect foreign intelligence effectively from individuals located outside the United States. 

We cannot support this bill, which does not provide liability protection, would sunset in less than 2 years, requires private court— 

prior court approval of acquisitions targeting persons outside the 

United States except in emergencies, and limits the type of foreign 

intelligence information that may be collected. 

I would now like to focus on an issue that will have an impact 

on community safety nationwide: the Sentencing Commission’s decision to apply retroactively, effective March 3, 2008, a newer and 

lower guideline sentencing range for crack cocaine trafficking offenses. 

Unless Congress acts by the March 3 deadline, nearly 1,600 convicted crack dealers, many of them violent gang members, will be 

eligible for immediate release into communities nationwide. Retroactive application of these new lower guidelines will pose significant public safety risks. 

Many of these offenders are among the most serious and violent 

offenders in the Federal system, and their early release, without 

the benefit of appropriate reentry programs, at a time when violent 

crime has increased in some communities, will produce tragic but 

predictable results. 

Moreover, retroactive application of these penalties will be difficult for the legal system to administer, given the large number of 

cases eligible for resentencing, now estimated at upwards of 20,000, 

and uncertainties as to certain key legal issues that remain unresolved. 

I understand the commitment of Members of this Committee to 

community safety and would appreciate the opportunity to work 

with this Committee and this house to address the retroactivity 

issue in an expedient manner, while beginning discussions on 

7 

changes to the current statutory differential between crack and 

powder cocaine offenses. 

Let me conclude with the following observation. While differences 

between this Committee and the department are inevitable and are 

consistent with the institutional tension embodied in the Constitution, which is our founding document, it is worthwhile to remember 

what unites us. 

We each swear an oath to defend the Constitution of the United 

States and to uphold the high ideals of public service to which we 

are entrusted. We must not lose sight of the common goals and 

common purpose that unify the Department of Justice and Members of this Committee who support its historic and ongoing mission. 

I have submitted a more extensive statement for the hearing 

record and would be pleased to answer any questions that you 

might have. 

Thank you very much. 

[The prepared statement of Mr. Mukasey follows:] 

8 

PREPARED STATEMENT OF THE HONORABLE MICHAEL B. MUKASEY


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Mr. CONYERS. Thank you very much, Mr. Attorney General. 

Let me ask you, have you any additional comments to make 

about the issue of waterboarding now that the CIA director has 

confirmed that that has, in effect, happened in—under our government? 

Mr. MUKASEY. If you wish to address a question to that, I am 

happy to answer a question. I could simply talk and then risk not 

answering the question that you had in mind. So if you wish to 

pose a particular question, fine. I am prepared to answer particular 

questions relating to that. 

Mr. CONYERS. Well, are you ready to start a criminal investigation into whether this confirmed use of waterboarding by United 

States agents was illegal? 

Mr. MUKASEY. That is a direct question, and I will give a direct 

answer. 

No, I am not, for this reason: Whatever was done as part of a 

CIA program at the time that it was done was the subject of a Department of Justice opinion through the Office of Legal Counsel 

and was found to be permissible under the law as it existed then. 

For me to use the occasion of the disclosure that that technique 

was once part of the CIA program—an authorized part of the CIA 

program, would be for me to tell anybody who relied, justifiably, on 

a Justice Department opinion that not only may they no longer rely 

on that Justice Department opinion, but that they will now be subject to criminal investigation for having done so. 

That would put in question not only that opinion, but also any 

other opinion from the Justice Department. 

Essentially, it would tell people: ‘‘You rely on a Justice Department opinion as part of a program, then you will be subject to 

criminal investigation when, as and if the tenure of the person who 

wrote the opinion changes or, indeed, the political winds change.’’ 

And that is not something that I think would be appropriate and 

it is not something I will do. 

Mr. CONYERS. Are you prepared to let us get a copy of the Office 

of Legal Counsel opinion? 

Mr. MUKASEY. The Office of Legal Counsel opinion discusses particular techniques that were part of what remains a classified program. 

We have, I believe, provided an unclassified discussion of general 

legal principles—did it back in 2004. And we have provided some 

classified briefings with regard to the legal reasoning underlying 

opinions, and are prepared to continue to do so. 

But the opinions themselves can’t simply be turned over because 

they discuss not simply legal reasoning, but the program itself, 

which remains classified. 

Mr. CONYERS. Well, every Member of this Committee is cleared 

for top secret information. 

Mr. MUKASEY. The opinions themselves dealt with a program 

that—to the extent the opinions themselves deal with a current— 

opinions relating to a past program cannot simply be disclosed in 

that fashion. They can be the subject of briefings, and have been. 

We can’t simply turn them over. 

Mr. CONYERS. Well, can we meet and find out what it is you are 

basing the response to my question? 

36 

Mr. MUKASEY. I think the question was whether I was going to 

open a criminal investigation because it has now been disclosed 

that waterboarding was part of the program. 

And what I have said is that waterboarding, because it was authorized to be part of the program, pursuant to approach—that it 

was authorized to be part of the CIA program, cannot possibly be 

the subject of a criminal—a Justice Department investigation, because that would mean that the same department that authorized 

the program would now consider prosecuting somebody who followed that advice. That won’t change whether letters are disclosed 

or not disclosed. 

Mr. CONYERS. Well, what we are trying to do is make ourselves 

conversant with the basis of the response that you gave to my 

question. So there must be some way, between the Department of 

Justice and the House Committee, that we can be made more 

aware—we have requested this document before—of the document 

on which you base your response. 

Mr. MUKASEY. The response about a criminal investigation 

doesn’t really depend on the particular content of the document. It 

depends on there having been an opinion that defined and authorized the limits of a particular program that is now disclosed included waterboarding at that time. It is no longer part of the program; that has also been disclosed, but that doesn’t change the contents of the letter. 

That said, I am sure that we can talk about possible additional 

discussion of what is in the letters between the department and 

Members of this Committee. My understanding is there had been 

ongoing discussion with Members of various Committees, including 

particularly the Intelligence Committees, but I was not aware— 

there may well very well have been discussions with Members of 

the Committee. I am not certain as I sit here. 

Mr. CONYERS. Well, we will pretend that we have never asked for 

this before, and we will start right now. 

Thank you very much. 

We have a call for votes. The Committee will stand in recess 

until this one—four votes are dispensed with. 

[Recess.] 

Mr. CONYERS. The Committee will come to order. 

And the Chair recognizes its Ranking Member, Lamar Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

General Mukasey, I would like to try to cover three subjects, if 

we could; interrogation techniques, FISA and, if we have time, intellectual property rights enforcement. 

In regard to interrogation techniques—and I know you are going 

to be asked a lot of questions about that today—I just want to express the personal opinion that I hope the Administration will not 

be defensive about using some admittedly harsh but nonlethal interrogation techniques, even techniques that might lead someone to 

believe they are being drowned even if they are not. 

My guess is that 99 percent of the American people, if asked 

whether they would endorse such interrogation techniques to be 

conducted on a known terrorist with the expectation that information that might be derived from such interrogation would save the 

37 

lives of thousands of Americans, that 99 percent of the American 

people would support such interrogation techniques. 

And I just can’t imagine that we would consider not using them, 

if they, in fact, were going to lead to the saving of thousands of 

American lives. 

Now, that is not a question, it is a statement. But I would welcome any comment on it that you might have. 

Mr. MUKASEY. I will thank you for the comment. 

I will say, as I said to the Chairman, if there is a particular 

question you want to pose, I will be happy to answer it. I thought 

the comment may very well not answer the question you have in 

mind. 

Mr. SMITH. Okay. 

Would you agree with me that 99 percent of the American people 

would probably endorse such techniques if they could be shown to 

save thousands of American lives and, again, to be conducted only 

on a known terrorist with the high expectation that such information could protect the American people? 

Mr. MUKASEY. Regrettably, unlike the—unlike the question 

posed by the Chairman, I can’t sit here and say what I think 99 

percent of people would do. I have, kind of, an instinct, but—— 

Mr. SMITH. I can, but you cannot. I understand that. 

General Mukasey, let me read a sentence from a New York Times 

editorial that appeared January 31 and ask you to respond to some 

of the assertions that were made in this particular editorial. 

This is the sentence; ‘‘Mr. Mukasey also pushed Congress to give 

immunity to telecommunications companies for any illegal acts 

they committed by helping the Administration carry out——’’ 

Mr. MUKASEY. I am sorry, ‘‘for any illegal acts they committed’’? 

Mr. SMITH. That is correct—‘‘while helping the Administration 

carry out its outlaw domestic spying program.’’ Kind of an amazing 

assertion. 

But the question is this: Are you pushing, have you pushed Congress to give immunity to telecommunications companies for any illegal acts they committed? 

Mr. MUKASEY. No. 

Mr. SMITH. Do you know of any aspect of the domestic spying 

program that is illegal as is asserted in this editorial? 

Mr. MUKASEY. No, I do not. 

Mr. SMITH. Okay. Thank you. 

To go on about FISA, as you know, several bills have been introduced to reauthorize the Foreign Intelligence Surveillance Act. One 

bill is called the Restore Act. Do you have any concerns about the 

Restore Act? And if so, what are those concerns? 

Mr. MUKASEY. I have concerns about the Restore Act that I tried 

to cover to a certain extent in my opening statement, which include 

that it does not include immunity for telecoms who participated on 

the assurance that what they were doing was necessary and lawful, 

which poses tremendous dangers for the future, as I outlined. 

It does not permit us to gather intelligence in categories that we 

are permitted and should be permitted to gather. 

It has a sunset provision that would stifle the investment of effort both the investment by—in personnel and the investment in 

material in an ongoing program. 

38 

For all of those reasons, we have problems with it. 

Mr. SMITH. Okay. Understand. Appreciate that. 

General Mukasey, last question has to do with intellectual property rights enforcement. 

As you know, the department has assigned a prosecutor in each 

of the Federal judicial districts to enforce intellectual property 

rights. It looks like there has been very uneven enforcement: Over 

half of the judicial districts in the United States, in fact, have only 

brought zero or one action against violators or those who have violated our intellectual property rights. 

Is there any more that the department can do to try to enforce 

the intellectual property rights? 

Mr. MUKASEY. There is always more that the department can do. 

And enforcement of intellectual property rights engages not only 

property rights themselves, but also matters relating to the security of the country insofar as those rights involve technical processes and procedures that we rely on for communications. 

Mr. SMITH. Any reason half the districts in the United States 

would not be showing particular activity when it comes to prosecuting those kinds of violations? 

Mr. MUKASEY. Not that I can think of offhand. 

When I was a district judge, we had all manner of intellectual 

property cases, ranging from knock-offs of popular products to—— 

Mr. SMITH. In those districts that are not active, perhaps you can 

enforce them to be more active. 

Mr. MUKASEY. Perhaps we can make them aware of the need to 

be active and to go out and make cases. And I appreciate—— 

Mr. SMITH. Thank you, General Mukasey. 

Thank you, Mr. Chairman. 

Mr. CONYERS. You are welcome. 

The Chair recognizes the Chairman of the Intellectual Property 

Subcommittee, Howard Berman of California. 

Mr. BERMAN. Thank you, Mr. Chairman. 

And welcome, General Mukasey. 

The Ranking Member’s question to you left something hanging, 

which I just wanted to clarify. I think the answer is pretty clear. 

Wouldn’t you say that it is true that there are ‘‘harsh interrogation techniques’’ that are not lethal which are still illegal because 

they fit within the definition of torture? A technique does not have 

to be lethal to be torture. 

Mr. MUKASEY. I think that is fair to say, as a general matter, 

because the torture statute is phrased in general terms. 

Mr. BERMAN. And when that is so, whether 99 percent of the 

American people have an opinion about that particular technique 

is somewhat irrelevant to the issue of whether that conduct should 

be permitted. 

Mr. MUKASEY. I think it is fair to say that the law doesn’t turn 

on what any percentage of people think is included within it or not 

within it, it is what it includes or doesn’t include—— 

Mr. BERMAN. That is right. 

Mr. MUKASEY [continuing]. On a reasonable reading. I am with 

you on that. 

Mr. BERMAN. I would like to go to another subject. 

39 

You have stated, I believe several times, both in your confirmation process and since, of your desire for cooperation between the 

Justice Department and the Congress. 

My question is, does that cooperation apply to jointly developing 

mutually agreeable procedures to govern any future search warrants executed on congressional offices in such a way as to protect 

legitimate law enforcement needs, while also respecting the speech 

or debate clause of the Constitution and the separation of powers? 

Mr. MUKASEY. I think I can say it emphatically includes that. 

Because I believe there are ongoing discussions to resolve precisely 

that. There is a case that was brought, as you know. We petitioned 

for cert, I believe. We would much prefer to resolve that case in the 

way that most disputes with respect to privilege and other matters 

are resolved between Congress and the Justice Department, namely by conversation and accommodation. 

And, as I understand it, that is actively under way. 

Mr. BERMAN. You are right, I believe and—that this is part of a 

recent meeting between the House Office of General Counsel and 

the Justice Department. 

I guess, are you saying that the Justice Department is actively 

engaged and committed to working to develop such a mutually 

agreeable process? 

Mr. MUKASEY. Both of those. 

And I deeply hope that it comes out that way, rather than in 

some bright-line ruling that one of us can’t live with or would find 

it awkward to live with. 

Mr. BERMAN. Great. 

And then, finally, if there is such an agreement, would you support setting forth that agreement in a memorandum of understanding or legislation or in some other fashion? 

Mr. MUKASEY. I think precisely how that—what the terms of the 

agreement are will govern, to a certain extent, how it is to be set 

forth. 

I am, at this point, more concerned that we reach agreement. 

Once we reach agreement, I think we can figure out precisely how 

to set it forth, whether it has to be in a memorandum of understanding or in some other fashion. 

But I certainly favor the success of the conversations that I understand to be now ongoing. 

Mr. BERMAN. Well, thank you. I think you have covered that subject. And I appreciate your responses. 

Since my time isn’t quite out, let me go back to the—just the 

questions of Chairman Conyers and you. 

I understand the notion of conduct done pursuant to a Justice 

Department authorization. I am curious about whether you think 

that the analysis that went behind that authorization was correct. 

Mr. MUKASEY. If we are talking about the authorization with respect to waterboarding, what I undertook to review was the current 

program. The current program, as I disclosed, does not include 

waterboarding. 

Were waterboarding to be brought back into the program, what 

would have to happen is that would have to come initially from the 

Director of the Central Intelligence Agency and, I believe, the Director of National Intelligence to the Justice Department. And I 

40 

would have to analyze that question not only pursuant to the law 

that existed at the time of the prior opinion, but also with regard 

to the laws that have been passed since, which have changed the 

landscape, I think it is fair to say, rather substantially. 

Mr. BERMAN. So it is sort of an internal case or controversy test? 

Mr. MUKASEY. Sort of. Yes. 

Mr. BERMAN. Okay. 

Mr. MUKASEY. Based on the concrete facts that would be presented to us at the time. 

Mr. BERMAN. Thank you. 

Thank you, Mr. Chairman. 

Mr. CONYERS. The Chair recognizes the Chairman emeritus of 

the Committee, Jim Sensenbrenner. 

Mr. SENSENBRENNER. Thank you very much, Mr. Chairman. 

I want to get back to the issue of severe interrogation practices. 

And at the September 26 Democratic presidential debate, the 

moderator, Tim Russert, posed the following question: ‘‘Imagine the 

following scenario. We get lucky. We get number three guy in Al 

Qaida. We know there is a big bomb going off in America in 3 days 

and we know this guy knows where it is. Don’t we have the right 

and responsibility to beat it out of him?’’ 

Barack Obama responded by saying: ‘‘There are going to be all 

sorts of hypotheticals in emergency situations, and I will make that 

judgment at the time.’’ 

Now, I hate to put you in a position of choosing between our distinguished Chairman and Senator Obama, but do you agree with 

Senator Obama that if he became President he should be able to 

make that judgment at that time, or do you disagree with him and 

think that Congress should make that decision right now for all 

time? 

Mr. MUKASEY. The only thing I can say is the way in which techniques could be authorized. 

If ‘‘beating it out of him’’ is part of the program, then it could 

be done. I am not saying that it is or that it isn’t. 

If it is not part of the program, the only way it becomes part of 

the program is if it comes from the CIA Director and the Director 

of National Intelligence, to me, to the President, and a ruling that 

it does not violate any statutes. 

Mr. SENSENBRENNER. I guess what I am saying is, is apparently 

Senator Obama’s answer implies that he is defending presidential 

powers against being hamstrung by an inflexible law passed by 

Congress. And, you know, that appears to be the thrust of Senator 

Obama’s answer, is that he said if he became President he doesn’t 

want to have handcuffs put on him. 

Mr. MUKASEY. If Congress passes a statute that treats a particular subject that Congress can and it becomes law, then that is 

the law, and the President will be bound to obey it. 

As a practical matter, to entertain the view that the President 

could then order somebody to act outside it I think is not a practical view. 

Mr. SENSENBRENNER. Okay. 

I also want to talk about one of the other urgent iteMs. And that 

is the retroactive reduction in the sentencing guidelines for crack 

dealers. 

41 

Does the Justice Department have any statistics about the 1,600 

that would be immediately released, what communities they were 

dealing crack in prior to their arrest and conviction? 

Mr. MUKASEY. I believe we can—although I haven’t in front of 

me and I certainly haven’t committed to memory the precise communities in which they would be located, I believe we can make 

distinctions based on their criminal histories, which would give 

some clue; based on whether any of them got a two-point uptick in 

the offense level, which would indicate the presence of a gun; and 

whether any of them got—had any prior history of gun convictions, 

regardless of their criminal history. 

It is my understanding that if all of those factors are included— 

that is, a criminal history category of two or above, a possible uptick of two for the presence of the gun or a prior gun conviction— 

any of those, that that would exclude from consideration for retroactive application something like, I think, 60 or 70 percent of the 

1,600. 

I believe that we have statistics to show that. 

Mr. SENSENBRENNER. Yes. 

You know, my gut reaction is that, if these people are released 

from prison, it will go right back into the communities where they 

were trafficking crack, and perhaps go right back into business, or 

definitely be involved in other criminal activity, particularly when 

being in possession of a firearm, which, of course, is a felony in and 

of itself. 

Mr. MUKASEY. And an additional problem is they would go back 

rapidly, without the pre-release programs that we have to try to reintroduce people into the community in a way that mitigates the 

possibility that they might become recidivists. 

Mr. SENSENBRENNER. Thank you. 

Mr. CONYERS. The Chairman of the Constitution Subcommittee, 

Jerry Nadler of New York? 

Mr. NADLER. Thank you, Mr. Chairman. 

Mr. Attorney General, I was interested to hear you say a moment 

ago that if the President ordered someone to do something against 

the clear intent of Congress, that is outside the law. 

The FISA act said a person is guilty of an offense if he intentionally, one, engages in electronic surveillance under the color of 

law, except as authorized by statute. 

Now, the President admitted that he did that. Every 45 days he 

signed an authorization to direct the surveillance of people in the 

United States without a warrant, as required by the FISA act. 

Now, I had previously asked your predecessor, Attorney General 

Gonzales, given this apparent prima facie case that the President 

and people under him, including the prior Attorney General, engaged in felonious conduct by doing so, that he appoint a special 

counsel to investigate the warrantless surveillance of Americans. 

And I recently reiterated that request to you. 

Now in your testimony before the Senate last week, you responded to Senator Leahy’s questions on whether the President 

violated the law by authorizing wireless surveillance by stating 

that you ‘‘don’t know whether the President acted in violation of 

statutes,’’ including FISA. 

42 

I believe we need to know the answer: Did the President, with, 

as has been reported, the advice of the Justice Department, break 

the law? 

I believe the answer is clear that he did. 

Given the extraordinary circumstances involved, allegations of 

criminal conduct by the President and other high-ranking officials 

and the possibility of conflict at the Justice Department, will you 

now agree to appoint outside special counsel so that we finally will 

get an answer to this question? 

Mr. MUKASEY. The direct answer to your question is no, I will 

not. 

Mr. NADLER. Because? 

Mr. MUKASEY. Beg pardon? 

Mr. NADLER. Because? 

Mr. MUKASEY. Because there is one detail that was omitted, and 

it may very well have been my fault in saying I didn’t know when 

I had forgotten or overlooked. 

There was in place an order—I am sorry, an opinion of the Justice Department describing the legal basis for the program to which 

you refer. That included the authorization of the use of military 

force, as a congressional statute on which it was relied that that 

behavior was legal. 

I understand that there are views on both sides of that—strong 

ones. 

Mr. NADLER. Well, there are views—let us put it this way: The 

Supreme Court in the Hamdan case, in a case just about directly 

on point, ruled that—for reasons I am not going to get into now, 

we don’t have time in 5 minutes—that the use of the two excuses 

by the Justice Department, namely the President’s inherent powers 

under Article II and the authorization for the use of military force 

as justification, was not, in fact, justification. The President is still 

bound by the law. The law was not repealed by implication by the 

AUMF and that that is not sufficient. 

Now, the Justice Department, in a letter to congressman—to congressman, excuse me—to Senator Schumer recited these letters as 

a refutation by a host of constitutional scholars against that. 

My second question, then, when this is—on behalf of the Justice 

Department, in effect representing the President, although a step 

removed, you say that this is justified, that it is not illegal, for the 

reasons stated. 

Lots of other people say it is clearly illegal. 

Normally, we would have that settled in a court. A court would 

decided whether something is legal or not when there is a dispute. 

But when you attempt to get this into court—you can’t get it into 

court by prosecution, because you are not going to prosecute or appoint the special counsel. But when you attempt to get it into court 

by victims or alleged victims, plaintiffs suing in civil court, then 

the government comes out and says, ‘‘Oh, you can’t get into court 

alleging violation of your rights through violation of FISA because 

of the state secrets privilege.’’ 

So now you have set up a situation where the President and the 

Attorney General assert the President’s right to do something 

which seems to a lot of people to a lot of people to be a violation 

of law and there is no way of checking that. 

43 

In other words, there is no way of getting—well, let me ask you 

a different question. Under this, is there any way—and would you 

agree that the state secrets privilege has to yield, because otherwise there is no way for Congress or the courts or anybody to have 

any check on the President’s claimed power? 

Mr. MUKASEY. The state secrets privilege—just to answer the 

last question first—the state secrets privilege is invoked by the 

government and backup is provided for its invocation. 

To my knowledge, that backup has been sustained—— 

Mr. NADLER. Well, the state secrets privilege has often been used 

where there is no backup provided, simply an affidavit. 

Would you agree that where the state asserts state privilege— 

state secrets, that the court ought to be provided with information 

in order to rule on the validity of the state secrets privilege? 

Mr. MUKASEY. The court can be provided with and is provided 

with information relating to the invocation of the state secrets 

privilege and an explanation of the basis for it, and to rule on that 

basis. 

Mr. NADLER. But the court often rules with—simply on an affidavit without seeing the documents to judge for itself whether they 

deserve—whether they would threaten national security were they 

revealed. 

Would you agree that the court ought to see that and make that 

decision? 

Mr. MUKASEY. I believe that courts see affidavits in some cases, 

affidavits and documents in others, and have what they consider 

to be an ample basis because they rule on that basis for a ruling. 

Sometimes things are quite clear. 

Mr. NADLER. And sometimes they are not. 

Mr. MUKASEY. And sometimes they are not. 

Mr. NADLER. And, lastly, we have heard hearings in this Committee on rendition—on so-called extraordinary rendition. On the 

Maher Arar case we are going to hold further hearings. 

Would you—and we have been told that we got assurances from 

Syria that Mr. Arar would not be tortured when he was sent there, 

which of course proved not to be true. 

Would you commit or agree that upon request, which will be 

forthcoming, that you will send someone from the department for 

a hearing here to answer the questions, ‘‘Who obtained these assurances? From whom were they obtained? What assurances were 

given?’’ so that we can begin to get to the bottom of this rather horrendous case? 

Mr. MUKASEY. It is my understanding that some of this has been 

the subject of classified briefings to various Members of this Committee and other Committees. 

It is also my understanding—and this is based on an exchange 

of notes between us and Canada that became public, not because 

of anything that anybody wanted to do voluntarily—that Mr. Arar 

is still on the no-fly list. 

Mr. NADLER. Yes, he is; improperly so, in my opinion. 

Mr. MUKASEY. Beg pardon? 

Mr. NADLER. I have seen—— 

Mr. CONYERS. The gentleman’s time may have expired. 

44 

Mr. NADLER. Let me just say, I have seen the confidential documents. He shouldn’t be on the no-fly list. But we have not heard 

about the assurances from Syria, even on a classified basis. We 

need to know that. 

I thank you, Mr. Chairman. 

Mr. CONYERS. Thank you. 

Howard Coble, Ranking Member, of North Carolina. 

Mr. COBLE. Thank you, Mr. Chairman. 

General, good to have you on the Hill today. 

I want to associate myself with comments made by the distinguished Ranking Member regarding intellectual property crimes in 

which he noted that more than half of the judicial districts in the 

country have shown little or no interest in prosecuting these. 

General, it is my belief that these intellectual property crimes 

should hold a national priority. Do you all at the Justice Department share that view with me? 

Mr. MUKASEY. We do, and we practice it. We approach on a national basis the need to protect intellectual property, which is the 

foundation of this economy and also goes directly to national security concerns. 

Mr. COBLE. I am glad to hear that, because I concur with you. 

Subprime mortgage questions: It has been reported that the FBI 

is in the process of investigating 14 companies involved in either 

mortgage lending to borrowers with weak or questionable credit or 

the marketing of securities backed by those loans. 

Considering the magnitude of this crisis—and I think it is a crisis—and the breadth of these allegations, would any resulting prosecutions be a priority for the Justice Department? 

Mr. MUKASEY. I can’t comment on what the FBI may or may not 

be investigating. 

But I recognize the degree to which the subprime debacle has affected the economy. And therefore, if crimes are disclosed, they 

would certainly be a priority. 

Mr. COBLE. Well, let me put an alternative question to you, General. 

Do you feel that prosecuting illegal predatory lending is an effective method of addressing the subprime mortgage crisis, as opposed 

to other proposals that would perhaps lend the bankruptcy code to, 

on the one hand, help consumers, but do little to stop the potentially illegal lending practices? 

Mr. MUKASEY. I can’t comment on a comparison between the two. 

But I know that, generally, prosecuting cases where you have an 

informed audience of other people who may be similarly situated 

to the defendant can be a very effective way of preventing further 

violations. And that is an informed audience. 

Mr. COBLE. Retain your prosecutorial hat, and let me put this 

question to you, General. 

What are you all at Justice doing to maximize the combined efforts of the various Department of Justice components to combating 

our Nation’s gang problems, A? 

And B, are you taking steps to combat gangs which are more organized than neighborhood-based gangs that generally operate regionally and nationally, across the country? 

Mr. MUKASEY. Definitely. 

45 

We have a facility, newly created, devoted to the gathering and 

dissemination of information about gangs, both national and international, gangs like M.S. 13 that cross not only state boundaries 

but national boundaries. 

We are working with the Bureau of Prisons to identify people 

within prisons—we are working not only internally but with people 

on the outside—who promote gang activity, and are trying to adopt 

a coordinated response to that kind of activity. 

Mr. COBLE. I appreciate knowing that. I was going to mention 

M.S. 13 as well, but you beat me to it. 

You have pretty well addressed the retroactivity question surrounding the crack cocaine issue. And I think that has been thoroughly discussed. 

And, Mr. Chairman, I hope that you will note, I was going to 

yield back my time before the red light illuminates, but I see the 

Ranking Member wants me to yield to him. 

Mr. SMITH. Would the gentleman from North Carolina yield? 

Mr. COBLE. I will, indeed. 

Mr. SMITH. Thank you very much. 

I wanted to follow up on a subject just mentioned by Mr. Coble. 

And, General Mukasey, this is something you touched upon a 

while ago, and it goes to the sentencing guidelines. 

I am just curious. Is there a way for the department to track 

those individuals who are released early? And will you be able to 

give a report to us as to what additional crimes those individuals 

have committed? Is that something that is possible, and can you 

get us that information? 

Mr. MUKASEY. ‘‘Impossible’’ is one of those words that I try to 

avoid. 

But I have to tell you that if a large number of individuals are 

released, it is going to tax the resources of the probation department, which has to supervise and keep track of those people, which 

is already—— 

Mr. SMITH. So the information is obtainable, it is just a matter 

of time and priority? 

Mr. MUKASEY. Correct, but it is going to be difficult. Going to be 

difficult. We will try to do it. 

I hope we are not placed in that position, because once March 3 

arrives, there is no undoing that. It is not as if we can turn the 

clock back. 

In fact, one judge has already released—— 

Mr. SMITH. Well, I think it would be important for us to know 

and for the American people to know if, in fact, individuals who are 

released early are committing additional crimes. 

And there may be a way for you to do a pilot test or test a geographical location if you cannot do the entire number of individuals 

released early. 

Mr. MUKASEY. We will try. I hope we don’t have to try. 

Mr. COBLE. I will reclaim. 

Mr. SMITH. Thank you. 

Mr. COBLE. Mr. Chairman, do I get credit for yielding before the 

red light, but for having yielded to the Ranking Member? 

Mr. CONYERS. Only minimally. 

Mr. COBLE. I appreciate that. 

46 

Mr. SMITH. I yield back. 

Mr. CONYERS. Chairman Bobby Scott of the Crime Committee? 

Mr. SCOTT. Thank you. Thank you, Mr. Chairman. 

General Mukasey, just briefly on the issue of torture, let me just 

make sure I have got this right. 

Is it the Department of Justice’s position that if Administration 

officials think that a person has important information, in their 

opinion, the torture is legal, and that decision is not subject to any 

judicial review or congressional restraint? 

Mr. MUKASEY. No. 

Mr. SCOTT. Then where is the review or restraint if Administration officials decide to torture somebody? 

Mr. MUKASEY. The torture statute applies across the board. 

There is an existing CIA program that has been found not to violate that statute or any other applicable statute. That is the only 

program that is now authorized. 

Mr. SCOTT. So if it is, in fact, torture in violation of the criminal 

code, the fact that some Administration officials want to do it anyway—just because they want to do it, they can’t immunize themselves from the criminal sanctions? 

Mr. MUKASEY. That is correct. 

Mr. SCOTT. Okay. 

On the issue of human trafficking—— 

Mr. MUKASEY. I should add, I can’t—— 

Mr. SCOTT. Okay, well, in the issue of human trafficking, the department can always prosecute any human trafficking case in 

which it can prove force, fraud or coercion. It is often difficult to 

get victims of sex trafficking to testify. And there is legislation that 

has passed the House 405-2 which is aimed at strengthening the 

department’s ability to go after traffickers who benefit from commercial transactions. 

Can we get your support for the bill which would allow the prosecution, notwithstanding the fact that you—without having to 

prove force, fraud or coercion? 

Mr. MUKASEY. We focus our activities on the worst of the worst. 

And we prosecute trafficking cases, we prosecute child cases that 

arise from Internet victimization, we prosecute a broad range of 

cases through a unit devoted specifically to that effort. 

The jurisdictional device you indicated of affecting interstate 

commerce doesn’t really raise the bar measurably, because that is 

a—in my experience as a Federal judge, that is a fairly low bar to 

meet, and would have the effect of dispersing efforts that we need 

to focus on the most horrendous cases. 

Mr. SCOTT. And if in a horrendous case the victims are unwilling 

to testify as to force, fraud or coercion, then you would not support 

legislation that would make it a little bit easier to prosecute? 

Mr. MUKASEY. I would be reluctant to support legislation that 

would have the effect of dispersing resources that are focused on 

cases that if you saw examples of them would mortify you. 

I spent part of the day visiting the National Center for Missing 

and Exploited Children out in Alexandria. It is a life-changing experience. That is the kind of case that we prosecute. We cooperate 

with those people. We have law enforcement people on the scene 

there. 

47 

Mr. SCOTT. The Department of Justice doesn’t prosecute every 

case that is technically within its jurisdiction. You use discretion. 

And we would assume that even if we changed it you would still 

use the discretion. 

But let me go into another issues—back to the crack powder/cocaine disparity. What portion of the defendants who might benefit 

from the legislation—what portion of those are violent and what 

portion of those are girlfriends just caught up with the situation 

with their boyfriends and they are serving decades, more than 

bank robbers and murderers? What portion of them would your 

classify as violent criminals? 

Mr. MUKASEY. I think the statistic of which I am aware, namely 

that a criminal history category of two or above, which indicates 

some problem. The presence of—a two-point uptick for presence of 

a gun, which, again, indicates a problem. A prior gun conviction of 

any kind would encompass something like 60 or 70 percent of that 

first—— 

Mr. SCOTT [continuing]. An opportunity to check that figure, because—— 

Mr. MUKASEY. I will. 

Mr. SCOTT [continuing]. We are given a different number. 

Let me ask you one quick question. In terms of discrimination, 

if there is a prohibition against discrimination for Federal contractors, are there any circumstances when it would be okay for a Federal contractor to tell someone that they should not be able to get 

a job solely because of their religion in a Federal contract? 

Mr. MUKASEY. As you describe it, there shouldn’t be. 

The question is whether there is legislation that addresses that 

in a way that then doesn’t require a court to make a distinction 

that it isn’t really equipped to make as between what is or isn’t a 

religious affiliation or what is or isn’t a religion, or to—— 

Mr. SCOTT. Sir, we have discrimination laws on the books. 

Should it be legal for somebody to say, with Federal money, ‘‘You 

can’t get a job solely because of your religion’’? 

Mr. MUKASEY. It should not. 

Mr. SCOTT. Thank you. 

Thank you, Mr. Chairman. 

Mr. CONYERS. The gentleman from Ohio, Steve Chabot? 

Mr. CHABOT. Thank you, Mr. Chairman. 

First of all, Mr. Attorney General, let me commend you for taking the time to go to the Center for Missing and Exploited Children. I have toured there as well, and I agree with you that it can 

be a life-altering experience. And I would encourage as many colleagues to go there and see the good work that they do and the horrors that are out there, especially on the Internet, for many children nowadays. 

So, thank you for doing that. 

My first question: As you probably know, there is a great deal 

of speculation that Delta Airlines may announce a merger with another carrier. And I have a considerable interest in this because in 

the greater Cincinnati area we have the second-largest Delta hub 

in the Nation, only second to Atlanta. 

48 

Mergers within the airline industry are treated with great speculation because of the impact that such a move has on consumers 

in terms of numbers of flights and airfares. 

And, in addition to the economic toll that could occur to the city 

or the community when one of these mergers occurs, there could 

be either businesses attracted to a community or away from it, 

there can be considerable loss of jobs and a number of things can 

happen. 

My question is, how will the Justice Department treat such intents to merge? And what factors will the Justice Department examine? 

For example, will the department look at such things as loss of— 

to a particular region about impact on consumers, job loss and 

those types of things, as part of the review? 

Mr. MUKASEY. I have met with the Antitrust Division. And they 

examine every proposed merger that can have an anti-competitive 

effect. And it is my understanding that they employ a full-time 

economist who considers a broad range of issues. 

I can’t, as I sit here, regrettably, tick off each of the issues. I 

didn’t take economics, and I wouldn’t presume even if I had. 

But they consider a broad range of issues. And they consider the 

anti-competitive effect of any merger under the laws as they exist. 

Mr. CHABOT. Thank you. 

And my other question, General: As you are well aware, the Nation is still trying to fully understand the events that led to the 

subprime lending crisis and respond to the fallout, which includes 

homeowners falling victim to foreclosure. 

For example, Howard Coble, our colleague here, mentioned this 

in a question that he had. I come from a little different angle. 

The state of Ohio ranks six in the number of homes that have 

been the subject of foreclosure, with one in every 58 homes being 

foreclosed upon. 

The city of Cincinnati, the city that I happen to represent, witnessed an increase in the number of foreclosures in 2007, placing 

it 30th on the list around the Nation in the numbers of foreclosures 

that have occurred; the problem that we are dealing with. 

A primary reason for the foreclosure fallout are predatory lending, lax lending—those are some of the main things. And many of 

these were in place up until 2006. 

My question is what is the Department of Justice doing to investigate and prosecute those institutions that are directly utilized or 

endorsed the use of predatory practices? 

And I know that many state prosecutors are under way, including in Ohio. What can the Justice Department do to support these 

state efforts? 

Mr. MUKASEY. I think what we need to do and I think what is 

being done is a gathering of facts and then a measuring of those 

facts against existing Federal legislation to see whether there are 

prosecutions that need to be brought. 

If the conclusion is drawn that there is something that prevents 

that, then, obviously, we need to consult with Congress to get legislation on the books. But the first thing we need to do is gather 

facts. 

49 

Now, I heard in one of the other questions that there are reports 

that the FBI is doing that. 

Mr. CHABOT. Thank you. 

And, finally, before my time runs out, I believe that in response 

to the second part of Mr. Coble’s question that you stated that you 

don’t have an opinion, either pro or con, relative to the efficacy of 

allowing bankruptcy courts to modify the mortgages of those who 

are in foreclosure due to various predatory practices. Is that correct? 

Mr. MUKASEY. It is not a question of my not having an opinion. 

It is a question of whether it is appropriate for the Attorney General to sit and start expressing opinions on policy questions rather 

than sticking to what he has sworn to do, which is to enforce and 

obey the law. 

Mr. CHABOT. Thank you. 

Mr. MUKASEY. So I am just trying to take myself out of it on that 

basis. 

Mr. CHABOT. Okay. Thank you. 

We encourage you to stay out of it, too. [Laughter.] 

Mr. CONYERS. Members of the Committee, we will now take a 10- 

minute recess at the request of the Attorney General and return 

immediately after the 10 minutes. 

Thank you very much for your cooperation. 

[Recess.] 

[Off Mic.] 

Mr. MUKASEY [continuing]. We had what I think could be 

called—what I think the diplomats called a frank exchange of 

views with the Office of Management and Budget that resulted in 

the budget that we have. 

That said, what we are trying to do is to focus our efforts and 

our glance in a coherent way so that we fight the problems that 

we have to fight on an across-the-board basis without particularly 

focusing on this program or that program. 

Mr. WATT. Well, even if you did that, though, Mr. Attorney General, if my math is right, $400 million into $1.7 billion is about 

three or four times. You can’t reorganize programs enough to make 

up $1.3 billion, can you? 

Mr. MUKASEY. We can’t create money out of the air, obviously 

not. What we can do, though, for example, with respect to gangs 

insofar as that might impact on the COPS program, we have a center that is going to disseminate information, with respect to gangs, 

to localities where the gangs are functioning. 

Mr. WATT. Yes, I understand that you are going to try to be more 

efficient. I am just—unless you are telling me that there is $1.3 billion worth of inefficiency in the Department of Justice at this point, 

I don’t know how you make up a $1.3 billion differential, what you 

are doing now for $1.7 billion you are going to do for $400 million. 

Mr. MUKASEY. I think we are going to do our best, and we are 

going to do what appears to make sense, which is to focus our efforts in an across-the-board way rather than focusing on whether 

this grant program or that grant program is in existence. I think 

we can function effectively. 

Mr. WATT. On $404 million, the Department of Justice can function effectively? 

50 

Mr. MUKASEY. We can make good use of any funds that we get— 

no doubt about that. 

Mr. WATT. All right. I am just—I know it is touchy to be out of 

step with the President, even if he is not going to be here when 

his budget he proposed goes into effect, so I am—I mean, I understand what you are saying, but that seems to me to be a pretty 

draconian cut that is being proposed. 

And I appreciate your walking the line on—— [Laughter.] 

Mr. CONYERS. The gentleman’s time has expired. 

Mr. WATT [continuing]. And I understand you can’t criticize the 

President publicly on this, so that is fine. 

Mr. CONYERS. The Chair recognizes its only ex-attorney general, 

Dan Lungren. 

Mr. LUNGREN. Thank you very much, my only Chairman of the 

Judiciary Committee at the present time. 

Mr. Attorney General, welcome to the world of politics. This is 

the only place where, when the President introduces a $3.1 or $3.2 

trillion budget, the largest in the history of the world, the only 

thing you hear about is why he didn’t spend more. 

I just came back from my district, had a couple of town halls, 

and people were talking about excessive spending. 

And I would use, as an example, the COPS program, where it 

was sold by the Clinton administration as seed money that would 

last for 5 years, that you would use the money and we would pay 

100 percent the first year, 75 percent the second year, 50 percent 

the third year, 25 percent the fourth year. And in the fifth year, 

local and state governments would be on their own. 

But now we are told, if we don’t extend the program, you, Mr. 

Attorney General, working for the President, are bleeding local government from their justified money. So, again, welcome to the 

world of politics. 

Let me thank you for your decision, in rejecting calls to appoint 

a special prosecutor on the destruction of CIA interrogation tapes 

case, not that you aren’t looking at it but that you believe that the 

department has the integrity to go through that investigation by 

appointing a trusted assistant U.S. attorney. 

I am one of those who fears that we have depreciated the value 

of the Justice Department, over the years, by immediately moving 

toward special prosecutors, presuming that the Justice Department 

can’t do the job. 

And so, I thank you for doing a professional job in your decisionmaking on that. 

Mr. Attorney General, I would like to ask you something in the 

area of FISA, because some questions were posed to you. 

Do you agree or disagree with the statement of your predecessor, 

Mr. Griffin Bell, in 1978, when, in appearing before the United 

States Senate in support of the creation of the FISA act, on behalf 

of the Clinton administration—excuse me, the Carter administration—he said that nothing in that act could intrude on the President’s inherent policy under commander-in-chief powers to conduct 

foreign intelligence? 

Mr. MUKASEY. I think I have already said, in fact I think I said 

in my—in the hearings on my confirmation, I pointed out that 

statement. 

51 

But we are now in a world in which we are functioning under 

a statute that we think works and that we want to have made permanent and put in place long term. And that is where we are, and 

that is where we want to be. 

Mr. LUNGREN. But can the Congress inhibit the President by 

statute where he has inherent constitutional power? 

Mr. MUKASEY. Again, I have said that there can’t be any inhibition on inherent powers, any more than the inherent powers of 

Congress could be inhibited. But we are, with regard to surveillance, in a place where we want to be, that is, with everybody rowing in the same direction. And that is where we want to stay. 

Mr. LUNGREN. With respect to the issue of waterboarding, I believe someone already talked to you about the statement of Senator 

Obama about emergency situations and how, if he were President, 

he would have to make a judgment at the time. That was in response to a question by Tim Russert about whether we could responsibly beat information out of somebody. 

Senator Schumer talked about a hypothetical where thousands of 

Americans’ lives are at threat. And he said, ‘‘My guess is most 

Americans, most senators, maybe all, would say, do what you have 

to do,’’ so it is easy to sit back in the armchair and say torture 

could never have been used, but when you are in the foxhole, it is 

a very different deal. And I respect—I think we all respect—the 

fact the President is in the foxhole every day.’’ 

And then, Professor Alan Dershowitz said that we need to ask 

questions, such as would you authorize the use of waterboarding or 

other nonlethal forms of torture if you believed it was the only possible way in saving the lives of hundreds of Americans in danger. 

I ask you this because The New York Times described the Department of Justice’s memorandum on the legality of certain interrogation techniques as simply—this is their description, ‘‘preserving the broadest possible legal latitude for harsh tactics.’’ 

Do you agree that it is appropriate—it would be appropriate for 

the Department of Justice, in looking at the legality of those 

things, ‘‘preserve the broadest possible legal latitude for harsh tactics?’’ 

Mr. MUKASEY. It is very tempting for me to answer a hypothetical question that appears to be favorable to a view, as it is for 

me to be tempted to avoid answering a question that appears to be 

unfavorable to a view. 

That is why I don’t answer hypothetical questions. 

I think what we try to do is to preserve whatever options we can, 

under the law, and to permit only what is authorized by the law. 

That is what we do. And I think it is appropriate for us to continue 

to do that. 

Mr. LUNGREN. And you pledge to continue to do that? 

Mr. MUKASEY. I beg your pardon? 

Mr. LUNGREN. And you pledge to continue to do that? 

Mr. MUKASEY. I do. 

Mr. LUNGREN. Thank you. 

Mr. CONYERS. The Chair recognizes the distinguished gentlelady 

from Texas, Sheila Jackson Lee. 

52 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. And 

thank you, Attorney General. It is a pleasure to have you before 

us. 

And very quickly, I just want to acknowledge and hope that you 

will review the President’s budget. Usually, it is a concession by 

the department. But the zeroing out or the seeming elimination of 

the COPS program is completely adverse to, I think, the majority 

of the Members of this Committee. 

So I raise that for your consideration. It is not my question, right 

now. If you want to give it in the answers that I may ask, I welcome that. 

I am concerned about the Civil Rights Division. And I have consistently raised the question, at just about every hearing we have 

had with an Attorney General, and I again raise it. 

And it suggests, the very top—and it may be very far away, Mr. 

Attorney General, but I would just say to you Federal civil rights 

investigations 1996 to 2006—and you can see a decided decline 

down to 2006. 

And so I have asked the previous Attorney General to give an explanation for that. We did get what we call in Congress ‘‘boiler 

plate’’ response from the Justice Department—and let me say on 

the record that it is totally unacceptable. 

I would like for you to go back and to provide me with the numbers of assistant attorneys general for civil rights, their experience 

and the cases that they have been able to prosecute in the last 

year—which is 2007, because that goes through to 2008. And I will 

just quickly go past to my questions. 

This, I think, is appalling, and it evidences the collapse of the 

Federal Government’s intervention in egregious actions around 

America. 

In the envelope that I was able to give to you—and I thank you— 

they are letters to the former Attorney General. And they look at 

issues such as Harris County jail, where 109 deaths in custody occurred over the last 10 years. We have been asking for a Federal 

investigation on the Harris County jail. 

The Texas Youth Commission has been charged with incidences 

of sexual abuse against young people. 

And then we have a circumstance of our district attorney who 

has been found with a number of e-mails that really suggest that 

he has a different view of African-Americans. This is a picture, allegedly, of an African-American with broken watermelon around 

him. It depicts a Black man lying on a sidewalk surrounded by 

half-eaten pieces of watermelon and ab empty fried chicken bucket, 

and it is entitled, ‘‘A Black man OD-ing.’’ 

We think that these are issues that warrant a larger hand of investigation, and it means the Federal Government. 

So my question to you is—and I am very glad to work with our 

Chairman, because I am looking forward to a meeting, a briefing, 

a hearing in Houston on this array of abuses. 

By may I ask the question about the federal—your view of the 

view of the Federal civil rights division—and if your answer could 

be pointed—but in terms of looking at these questions that are 

raised by Members of Congress as it relates to civil rights of individuals being prosecuted across America? 

53 

Mr. MUKASEY. The response of the Civil Rights Division is not 

simply to questions that are raised by Congress. It is to civil rights 

problems across the board. 

And I have met with the current nominee to be the Assistant Attorney General for the Civil Rights Division. I have met with each 

of her unit chiefs. And what I have tried to stress—and this is not 

by way of preaching, but by way of conversation and, I hope, example—that that Division represents—hate to say more than others, 

but it probably is true, more than others—the essence of what the 

Civil Rights Division’s mission is supposed to be. 

Ms. JACKSON LEE. Well, would you join me in encouraging her 

to look into these series of what I perceive to be violations or egregious incidences, in particular, in Texas? 

Mr. MUKASEY. I will certainly call them to her attention. I will 

encourage her to find out whether we have got jurisdiction to do 

anything with regard to any of those. And I encourage any Member 

of this Committee who finds any evidence of a civil rights violation 

to call it to our attention. 

But I want to stress that that Division doesn’t simply respond to 

congressional requests, not that that is unimportant. It is important. 

Ms. JACKSON LEE. I understand. 

Mr. MUKASEY. But their mission is much more proactive—— 

Ms. JACKSON LEE. I understand. 

Mr. MUKASEY [continuing]. And they understand—— 

Ms. JACKSON LEE. Let me reclaim my time—because I have two 

quick questions. One, on the Jena 6 prosecution, as well—was an 

issue where the department was missing in action. 

I want an explanation as to why we did not prosecute or look 

into the individual prosecutor, but prosecute the perpetrator of the 

noose originally. This is not during the march. 

My last point is on FISA, and to give an explanation as to why 

the Administration would not accept an amendment that would 

prevent reverse targeting without securing a warrant when you are 

trying to get someone who is placed here in the United States. 

You are looking after someone on foreign soil, but you wind up 

getting someone on the United States, and you are doing it without 

a warrant. 

Mr. MUKASEY. The short answer to the last question is there is 

already a law in force preventing reverse targeting. The language 

that has been proposed suggests an ambiguity in the standard that 

would bar us from getting the incoming call from somebody abroad, 

who we can target, to the United States. And that is the call we 

want to listen to. 

But so far as the claim that the department, that the Civil 

Rights Division, was missing in action in Jena 6, I most respectfully disagree. We had people there from the Office of Community 

Relations right away. They are on the ground. They are still looking into that. 

We had people from the Educational Opportunities Section looking at the compliance by that school, the school where that incident 

occurred, with an existing desegregation order. And we are still 

looking at that incident. 

54 

And as you know, we have prosecuted what regrettably has come 

to be known as a noose violation that occurred when people coming 

back from the demonstration gathered at an interstate facility, and 

were greeted by the horrible sight of somebody driving around in 

a truck with nooses hanging off the back. One of those people has 

been indicted. 

Ms. JACKSON LEE. Well, that was after the fact. I hope you can 

give me a report of what you did leading up to the tragedy of those 

six young men being arrested unfairly and prosecuted and their 

lives taken away because they were prosecuted as adults—felon 

adults, and nothing happened to the young men who hung the 

noose originally at that school. 

That has to be a civil rights violation that your U.S. attorney 

failed to prosecute. 

And I disagree with you on FISA, but let us hope we can work 

together on that, because I think we need to protect the civil liberties of all Americans. 

I thank the Chairman. I yield back. 

Mr. CONYERS. The Chair recognizes Randy Forbes of Virginia. 

Mr. FORBES. Mr. Chairman, it is Mr. Cannon who is next. He 

was here before me. 

Mr. CONYERS. Oh, I am sorry. I didn’t see Chris Cannon of Utah 

entered the hearing room and is recognized. 

Mr. CANNON. Thank you, Mr. Chairman. 

Mr. Forbes is infinitely more important and articulate than I and 

I would gladly defer to him, but I do have a statement and a couple 

of questions for General Mukasey. 

In the first place, thank you for being here. We appreciate the 

calm that you have brought to the department. 

As the Ranking Member of the Committee on Commercial and 

Administrative Law, which does not sound relevant, except that it 

has oversight of the U.S. attorneys and having had, it seems to me 

dozens and dozens but was probably less than two dozen hearings 

on the topic, we are glad you are there and directing the department with a firm hand. 

Let me ask a question about the D.C. gun ban. The position 

taken by the Attorney General has raised some concern. And I understand that his position is that he wants to protect the department’s ability to prosecute and enforce Federal fire arm laws. 

But, notwithstanding those laws, do you agree with the argument that the Second Amendment is an individual right? And does 

the Administration agree with you as well? 

I think—obviously, as you know, the case is up for decision by 

the Supreme Court, so I am kind of limited in what I can say. The 

department’s position, as outlined in its brief, is that—at least I believe, that the Second Amendment is a personal right. And I understand that to be the Administration’s position. 

Thank you. I appreciate that very much. 

I think it is a personal right. I don’t think the Constitution—the 

words make any sense unless you read it that way, and especially 

if you look at the history and the failed attempts by some folks to 

try and rewrite that history, fabricating facts. 

So it appears to me that we are on a course to clarify what has 

seemed to me to always be a straight-forward issue with an atVerDate Aug 31 2005 13:36 Oct 21, 2008 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6601 H:\WORK\FULL\020708\40741.000 HJUD1 PsN: 40741
55 

tempt to muddle and use Federal law to obfuscate a basic and fundamental right that I think is foundational to America’s freedoms. 

During much of last year, we have heard the argument that the 

Department of Justice was broken and a new AG was needed. We 

have a new AG, Attorney General, but it is my understanding that 

there are 10 main Justice positions for which nominees have been 

sent to the Senate, but none have been confirmed. 

And those include deputy attorney general and associate attorney general positions. 

It appears that you are the quarterback but without a front line. 

I am wondering if you can talk about the problems you and the 

American public faces as a result of Senate inaction on these qualified nominees. Do you need some help? 

Mr. MUKASEY. We need to get confirmed nominees in the positions for which they have been nominated. 

That said, I must say that the people who are functioning in acting capacities are functioning well and valiantly. But that is not to 

say that we don’t need—what we need is stability and a sense of 

stability that is conveyed by having a confirmed nominee there. 

That is what we need. 

Mr. CANNON. Thank you. I agree entirely with that. We have 

wonderful career bureaucrats in the Justice Department, people 

who are committed to the ideas and the continuity of what the Justice Department does, whether or not you have a Republican administration or a Democratic administration. 

But it just seems to me that they are programmed to work in a 

situation that includes political appointees, and the Senate has a 

responsibility to confirm those appointee who are—if they are 

qualified, and I don’t think there has been any question about their 

qualifications, just delay and more delay on the part of the Senate. 

Of course, there is a lot of delay on other issues as well. But this 

one is vital, it seems to me, and they need to come forward. 

The matter of the CIA’s destruction of video tapes of interrogations of terror suspects has received a great deal of attention recently. I understand that there is an ongoing investigation of the 

matter and that you may not be able to say much about it today. 

Can you discuss your decision on the appointment of veteran 

Federal prosecutor Mr. John Durham and why you chose not to appoint a special counsel? 

Mr. MUKASEY. I can’t get into confidential discussions and executive matters. I can say that we looked initially to the U.S. Attorney’s Office in the district where the CIA is located. That U.S. Attorney’s Office, by mutual agreement, recused itself, and we appointed John Durham to be the acting United States attorney for 

the purpose of—to be—the United States attorney for the purpose 

of this case and to investigate this case. 

The fact that one office recused itself does not in any way disqualify the department from conducting the investigation and to 

say that because this is a case that has gotten a great deal of attention necessarily means that we have to go outside the department and appoint a special prosecutor and so forth sends the 

wrong message in two respects. 

One is, it undermines confidence in the department to deal with 

cases involving public officers. We have a whole public integrity 

56 

section that deals with cases of that sort, would send that message 

to the public at large, and it would also tell the department, you 

can’t be relied on to investigate a case that has widespread public 

interest. 

Neither of those messages is warranted. 

Mr. CANNON. I think I agree entirely with both of those points. 

And recognizing my time is expired, Mr. Chairman, I yield back. 

Mr. CONYERS. The Chair recognizes the distinguished lady from 

Los Angeles, CA, Member of this Committee, Maxine Waters. 

Ms. WATERS. Thank you very much, Mr. Chairman. I would like 

to thank the Attorney General for being here today, and to just say 

that I and others believe that the department is absolutely broken 

and lacks credibility, and that the past Attorney General resigned 

in shame and dishonor. 

And so I am very concerned about one of your statements. On 

page 24 of your written statement, under a headline called ‘‘Protecting Communities from Violent Drug Offenders,’’ you state that 

nearly 1,600 convicted crack dealers will be eligible for immediate 

release—and you emphasized the word ‘‘immediate’’—if Congress 

doesn’t act. 

You also stated, ‘‘Retroactive application of these new lower 

guidelines will pose significant public safety risks.’’ 

Such a statement appears to me to be a distortion of the Sentencing Commission’s decision, because it completely ignores the 

process that must be followed before anyone is released. 

Mr. Attorney General, isn’t it true that the Sentencing Commission’s decision does not provide an automatic release? 

Mr. MUKASEY. It provides for an automatic downtick in the 

guideline range, and for sentencing. 

We have to understand, though, the context in which that would 

arise. It arises in a case that, almost by definition, occurs some 

substantial time before it comes back to the court. It necessitates 

the court going back through the record. 

It, in many cases, involves having the United States attorney 

who—if you are lucky, he is still there. 

If he remembers the case or not, is something else, again. And 

it has to come up then for resentencing. 

They are eligible for automatic release, that much is true. They 

also get the benefit, as others in prison do not get the benefit, of 

the new—relatively new regime under Booker in which the guidelines themselves are optional. So we have selected out for better 

treatment that group of defendants who then get resentenced 

under the optional guidelines under Booker. 

Ms. WATERS. Well, what you just described was the process. And 

you described in that process several ways by which one may be 

eligible or may be released. 

Your statement on page 24 does not in any way capture that 

there is a process. It talks about immediate release. And I think 

for this department to have credibility again—if it is ever going to 

gain credibility, that the statements that come out of the mouth of 

the Attorney General should be ones that we can rely on. 

And I bring that to your attention because it is important to always describe that there is a process that—nobody is taking the 

57 

key, unlocking the jails and say, ‘‘Everybody is out.’’ That does not 

happen. 

Let me just move on with another concern that I have about 

predatory and subprime lending and race. What we have discovered is that minority communities have been targeted and fraud 

has taken place. And it is not simply a subprime lending. It is a 

combination of targeted communities for subprime lending and 

fraud, and that people of color, African-Americans in particular, 

have been harmed by this practice. 

What have you done, what has the department done to investigate these cases? 

Mr. MUKASEY. Facts are being gathered to determine whether 

there is Federal jurisdiction to prosecute cases of the sort you described. I should point out that we have prosecuted and are prosecuting cases involving discriminatory denials of credit. We have 

been doing that straight along, and we have done it in a number 

of—— 

Ms. WATERS. I am interested in the crisis that we are in now. 

I was in Ohio, for example, where whole blocks were boarded up 

in an African-American community. And also we are finding that 

in California, where San Bernardino-Riverside area ranks number 

5 in foreclosures in the country, that they, too, are minority communities. 

I am wondering if specifically you have done anything to look at 

that kind of targeting and the race questions. 

Mr. MUKASEY. We are gathering facts to determine whether we 

have jurisdiction to prosecute any of those as criminal violations. 

If we don’t, obviously, there is going to have to be legislation from 

this Congress. 

Ms. WATERS. Would you be wiling to come forth with suggested 

legislation if you find you do not have a jurisdiction? 

Mr. MUKASEY. If we can come up with legislation, we hope to 

work with Congress to get it—if it is necessary. 

Ms. WATERS. How long do you think it will take you? 

Mr. MUKASEY. I cannot, as I sit here, give you a deadline, I am 

sorry. 

Ms. WATERS. But it is one of your priorities? 

Mr. MUKASEY. It certainly is one of my priorities. 

Ms. WATERS. I would certainly hope so, Mr. Attorney General. 

Let me point you to the Gulf Coast. After Hurricane Katrina, 

during field hearings of the Financial Services Housing Subcommittee in Mississippi and Louisiana, a number of witnesses 

complained about local actions to keep African-American renters 

out of their communities—Saint Bernard Parish, for example—and 

local resistance to the development of affordable housing that appears to be based on racial makeup of the prospective tenants, as 

much as it is to objections to affordable housing. 

These actions and resistance are having a serious adverse impact 

on the ability of hurricane-ravaged communities to provide and rebuild the affordable housing stock in their communities and contributing to the ongoing housing crisis for poor minority people. 

At least one private Fair Housing Act lawsuit against St. Bernard Parish has been brought. 

58 

Has the Civil Rights Division initiated any such lawsuit? Is the 

Civil Rights Division investigating any allegations that such resistance to affordable housing projects violates the Fair Housing Act? 

Mr. CONYERS. The gentlelady’s time has expired but—— 

Ms. WATERS. Could I get an answer, Mr. Chairman—— 

Mr. MUKASEY. The short answer is, I don’t know the particular 

circumstances you have described, but I am more than willing to 

get back to you in a question—in written form, because I think the 

question deserves—certainly deserves an answer. 

Ms. WATERS. And while you are doing that, would you also check 

out the race-based advertising on the Internet as it relates to housing in that area? 

Mr. MUKASEY. I will check out whatever—what you have asked 

about. 

Ms. WATERS. I am asking about that, too. 

Mr. MUKASEY. Okay. 

Ms. WATERS. Thank you. 

Mr. CONYERS. The Chair recognizes Randy Forbes of Virginia, 

the former Ranking Member of the Crime Subcommittee. 

Mr. FORBES. Thank you, Mr. Chairman. 

And, Mr. Attorney General, thank you for being here. 

To say the department is not now, nor has it ever been in its history perfect, nor will it ever be perfect, seems obvious to anyone 

who has ever been involved in government, but to suggest that 

means the department is broken is certainly a misnomer and a 

stretch. 

And I am just like to switch to a little different topic now. We 

have had former Attorney Generals that have testified, and we 

have had a number of other people in various departments about 

a different issue, one that the Chairman of the Subcommittee on 

Crime and Terrorism and Homeland Security was courteous 

enough to have a hearing on recently, and that is espionage. 

And the question I would ask for you today, do you agree with 

the testimony that we have had that China is currently the number one espionage threat to the United States? 

Mr. MUKASEY. I am really not at liberty to talk about matters 

that are classified. And part of the problem is that the information 

that I have about that comes in part based on classified information to which I have access. And I am very reluctant to get into 

that. 

Mr. FORBES. Is there any part of that, since we have had much 

of that it has been testified to, some by your department, that was 

not in a classified setting, is there any part of that espionage that 

you can testify about today? 

Mr. MUKASEY. Not that I am aware of as I sit here, and I don’t 

want to make any mistake in the wrong direction. 

Mr. FORBES. Okay. 

Mr. Chairman, then I don’t have any other questions. 

Mr. CONYERS. The Chair is pleased now to recognize the Chairperson of the Immigration Subcommittee, Zoe Lofgren of California. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

And thank you, Mr. Attorney General, for being here with us 

today. 

59 

One of the things I am interested in is the efforts you are making 

to adjust or to recoup for some of the problems that we discovered 

in the Department of Justice. 

For example, last year, the Department of Justice’s former principal deputy director of public affairs, Monica Goodling, appeared 

here and testified that she applied a political litmus test to determine who would hold certain positions in the Department of Justice. 

And, if I recall correctly, she said she stepped over the line. What 

she actually meant was that she violated the law by providing a 

political litmus test in the appointment of immigration judges who 

are civil servant appointees and not political appointees. 

And I am wondering what concrete steps you are taking, both 

about future hiring decisions when it comes to immigration judges 

and how to deal with the politicization of what should have been 

civil service appointments, in your new post? 

Mr. MUKASEY. Well, as you know, some of that is still under investigation by—— 

Ms. LOFGREN. I am just telling you what she told us, here, under 

oath. 

Mr. MUKASEY [continuing]. The Office of the Inspector General 

and the Office of Professional Responsibility. 

However, I have, myself, signed appointments of immigration 

judges. And I think I have made it clear that any political consideration, in that regard, is not to be made. 

And I have said that on more than one occasion. And I have not 

seen, in those appointments—and believe that I will not see in any 

future appointments—any evidence of anything of that kind. 

Those are merit appointments, and those should be merit appointments. Those will continue to be merit appointments. 

Ms. LOFGREN. Well, just to follow up on the general topic, Chairman Conyers and I sent you a letter in January—and I am not 

complaining that you haven’t answered yet, because it was just a 

few days ago—but, talking about a Board of Immigration Appeals 

decision that radically reverses a longstanding policy of our government about asylum for victims of female genital mutilation. 

And I am concerned—I don’t want to say that there is a political 

issue. But this has been well-settled law for a very long time. We 

give the citations. 

And I am just hoping that you can take a look at, not only that 

letter and the citations, but make sure that there is no political 

overtones to such a radical departure from well-settled law. 

Mr. MUKASEY. I mean, I can’t imagine how there would be a political overtone, but I am going to look at the letter and the underlying opinion. 

Ms. LOFGREN. I meant to follow up on another subject, and I 

know there has been a lot of discussion about this. But on the FISA 

bill that we are working on, obviously, we are working in good faith 

to get the best bill that we can, that gives the government the tools 

it needs but also respects the Constitution. 

And I am hopeful that we will—if the Senate can move—that we 

will have a good bill that we will be able to send to the President 

for his signature. 

60 

It seems to me, earlier today, you testified that the telecommunications companies had not violated the law. 

And I just—I am a little stunned, actually, to think that, if we 

gave you a bill that had all of the tools that you wanted, that allowed you, the Administration, that you would recommend that it 

be vetoed simply because of a monetary damage issue for—or the 

potential exposure of liability to these private companies. 

Is that really your position? 

Mr. MUKASEY. No. And I am glad you raised it in that form. It 

is not simply a monetary issue. It is a signal to them, essentially, 

that, if you are asked, in good faith—you respond in good faith to 

a request to cooperate with the government; you are assured that 

your activity is lawful; and you then cooperate, that you do so at 

your own risk. 

Because that is a statement not simply to the telecoms but it is 

a statement to every business, every CEO in the country. 

Ms. LOFGREN. Well, but CEOs also have an obligation to independently adhere to the requirements of the law. 

I will give you an extreme example. If you went to me and said, 

‘‘Here is a gun; shoot Adam Schiff,’’ I couldn’t say that that is—— 

Mr. SCHIFF. Can you use a different example? 

Ms. LOFGREN. A different example? [Laughter.] 

I couldn’t say that is okay, because you told me to do it. 

Mr. MUKASEY. That is correct. But to say that you should not 

shoot Representative Schiff, because I asked you to do it—understanding that I would not do that—— 

Mr. SCHIFF. Mr. Chairman, can we change the hypothetical? 

Ms. LOFGREN. Yes. [Laughter.] 

I will change the hypothetical—— 

Mr. SCHIFF. Thank you. 

Ms. LOFGREN [continuing]. With discharging a fire alarm to hit 

that pitcher of water, in violation of the law. 

Mr. MUKASEY. That is all light years away—light years away 

from what we are talking about here. We are asking, and suggesting to companies, essentially, that they cooperate, at their 

peril, and that the only rational thing for them to do is to get a 

court order, to resist cooperation, and essentially to lengthen the 

process and prevent us from getting their cooperation. 

And that is a signal that is being sent, not simply to telecoms, 

but to business across the—— 

Ms. LOFGREN. I very much disagree, Mr. Attorney General. 

Mr. MUKASEY [continuing]. Cooperate with law enforcement, and 

they do cooperate with law enforcement. 

Ms. LOFGREN. I know my time is expired, but I will just say that 

no court is going to assign liability unless there is a pretty clear 

and bright line to accompany. 

I just don’t see how, number one, retroactively, if they have done 

nothing wrong, what the problem is. Ordinarily, we do not enact 

laws to prevent ongoing cases from being heard and, prospectively, 

you know, if we were to sit down, I am sure we could coming up 

with something reasonable, but we have just gotten, kind of, a 

stonewall from—— 

Mr. MUKASEY. This is an issue of ongoing litigation, disclosing 

details of their participation, disclosing who participated and who 

61 

didn’t, exposing them to not only a hit in the stock price, but sabotage and other acts, simply, we think, is unacceptable, and would 

result from a continuation of the litigation. 

That is why we are opposed to it, in addition to the push-back 

that we are going to get, and that has already started. 

Ms. LOFGREN. My time has expired. Mr. Chairman, I appreciate 

your indulgence. 

Mr. CONYERS. Steve King is the Ranking Member on immigration, from Iowa. We recognize him at this time. 

Mr. KING. Thank you, Mr. Chairman. And, Attorney General 

Mukasey, I want to thank you for your testimony here today. It is, 

I think, a very capable testimony that demonstrates a clear understanding of duties in the law. 

And I recognize that you haven’t had a lot of time to get acclimated to this particular task. 

But I do have a number of things I would like to discuss with 

you. And one of them would be, I believe, something that needs to 

be explored a little more thoroughly. 

And that is the issue of the liability with regard to FISA, and 

companies that are in a position to provide information that can 

help our national security, protect American lives and American 

national security. 

And we have had some significant discussions, in this chamber, 

about the liability and how one might address that. But I don’t 

know that we have had discussion about the intimidation effect. 

And I am just going to speculate that not only telecommunications companies and other communication companies that have 

a lot of data out there that can be stored and sorted, that one can 

find indicators in, to be able to target Al Qaida and other enemies 

of the United States—not only those companies but other companies across the spectrum of services. 

It might be cell phone companies, for example. And the idea that 

because there is not liability protection, then can—I am going to 

presume—and I am going to ask you how this might affect our national security—I am going to presume that these are—there are 

companies now that are gathering their legal brains together and 

meeting together in their trade associations to determine how they 

are going to protect themselves from this impeding liability. 

And do you believe that that could affect our national security? 

Mr. MUKASEY. I certainly do. And, again, here in part I am going 

on the basis of my experience as a private lawyer, and that is that 

companies want to protect themselves from liability. And it may 

very well be that the best way to protect yourself from liability is 

not to have the information in the first place. 

It may very well be that the best way to protect yourself from 

liability is to resist, to say, ‘‘Under ordinary circumstances I would 

love to cooperate, but in the current atmosphere I can’t be certain 

that my cooperation isn’t going to be the subject of a lawsuit, so 

I need a court order.’’ 

And all of that adds burdens, and sometimes—obviously, if information is destroyed, will deprive us of the opportunity to get the 

information, to get the cooperation. 

Mr. KING. Even though we have had some discussions about the 

destruction of some tapes that had to do with some interrogations, 

62 

we may well be, as we sit here, be having information that is being 

destroyed by private companies so that they don’t have to consider 

whether or not to provide information if it is requested because of 

the liability that is potential. 

Mr. MUKASEY. An important consideration. 

Mr. KING. Thank you. 

Moving on to another subject, on the Voting Rights Act, in the 

investigations that have gone on in some of the covered districts, 

the judgment that might come from the Department of Justice on 

whether to initiate an investigation, what might that be based 

upon? 

Mr. MUKASEY. I can’t, as I sit here—I mean, I have expressed a 

reluctance on many subjects about answering hypotheticals. But 

the fact is that we have litigated and defended the renewal of the 

Voting Rights Act, the constitutionality of that, and we are going 

to continue to do that. 

And, obviously, we are looking at patterns and practices, if there 

are such, of race-based denial of the right to vote, and so on, that 

would result in instituting—— 

Mr. KING. Would you agree also that it would be based upon an 

objective analysis of existing law and the Constitution? 

Mr. MUKASEY. Absolutely. 

Mr. KING. And if there are any issues aside from that, say if a 

local jurisdiction had passed some immigration enforcement law, it 

would have no bearing upon the consideration of the department? 

Immigration enforcement law? 

Mr. MUKASEY. As I sit here now, I can’t think of the connection 

between the passage of an immigration enforcement law and a voting rights offense. 

That said, if somebody showed such a connection, then that is 

something that somebody would have to look at. 

Again, I am reluctant to deal with hypotheticals. 

Mr. KING. Thank you. 

And I want to just quickly switch to hate crimes. And we had 

witnesses, here at this same table that you are seated at, with regard to the Jena 6. And U.S. Attorney Washington testified, seated 

at that table, that he didn’t believe that hanging a noose on—that 

he believed that hanging a noose in a tree, in Jena, was a hate 

crime. So did every witness on the panel agree that it was a hate 

crime. 

And yet the follow-up question was that, did that they believe 

that the assault on the young White gentleman—and particularly 

the name in the press is Mykal Bell, as one of the perpetrators, 

who has since confessed. 

The testimony from the U.S. attorney was that he didn’t believe 

that the assault on that young fellow by six African-Americans was 

a hate crime. 

And I am having trouble reconciling that. And I wonder if you 

might be able to do that. 

Mr. MUKASEY. Jena is a matter that is still under examination. 

I am reluctant to comment on matters that are under examination. 

We do hate crimes. We prosecute hate crimes, the one as well as 

the other. 

63 

Mr. KING. I hope that is the case. I trust it is. And I appreciate 

your response, Attorney General. 

And I thank the Chairman. I yield back. 

Mr. CONYERS. Thank you. 

The Chair is pleased to recognize Robert Wexler, the gentleman 

from Florida. 

Mr. WEXLER. Thank you very much, Mr. Chairman. 

Welcome, Mr. Attorney General. Thank you for being here. 

I would like, with your permission, to go back to an issue raised 

by Mr. Berman, which is this Administration’s failure to comply 

with congressional subpoenas. 

This unprecedented obstructionist policy I think is best exemplified by the refusal of White House Chief of Staff Joshua Bolten and 

the former White House counsel, Harriet Miers, to even appear before this Committee to answer legitimate questions about the firing 

of nine U.S. attorneys. 

As I know you are aware, on July 25 of this past year, this Committee approved contempt citations for both Mr. Bolten and Ms. 

Miers for their unprecedented refusal to appear before this Committee. 

Sadly, this behavior, abuse of power, in my mind, by this Administration, is a pattern of limitless executive branch usurpation of 

authority. We have experienced endless executive privilege claims 

in the areas regarding the U.S. attorney firings, illegal wiretapping, and, of course, in the most notorious case, where the executive privilege got to the ludicrous point of Vice President Cheney 

arguing that he wasn’t even a part of the executive branch in order 

to avoid a Freedom of Information request. 

These abuses of executive power and the fact that the White 

House still refuses to provide any answers whatsoever to subpoenas is one of the primary reasons I have called for impeachment 

hearings regarding the Vice President of the United States. 

I think it is unfortunate, I think the American people lose in a 

big way, but I believe—by the Administration not providing information—but I believe that impeachment hearings are the only way 

to actually obtain answers from this Administration. 

With that context, I am curious, have you been instructed by the 

President of the United States to enforce or not to enforce contempt 

citations issued by the Congress? 

Mr. MUKASEY. Respectfully, I cannot go into and will not go into, 

by way of affirmance or denial, any conversations that I have had 

with any other member of the executive on that subject or related 

subjects. 

I should say that there is a long line of authority, going back several Administrations, back to the Clinton administration and beyond, that says that the enforcement by way of contempt of a congressional subpoena is not permitted when the President directs a 

direct adviser of his, somebody who directly advises him not to appear or when he directs any member of the executive not to 

produce document. 

That much said, there is a long history as well of cooperation and 

accommodation between branches, between Congress and the executive in accommodating one another’s needs so that we don’t have 

to come into collision in that fashion. 

64 

Mr. WEXLER. Thank you, Mr. Attorney General. 

Cn you tell me the individual that President Clinton instructed 

not to even appear before this Congress? 

Mr. MUKASEY. Walter Dellinger rendered an opinion respecting 

the reach of executive privilege. I can’t sit here—— 

Mr. WEXLER. I didn’t ask about opinions. I am asking if President Clinton instructed any individual in the Clinton administration not to appear before Congress. 

Mr. MUKASEY. I do not know that. 

Mr. WEXLER. Okay. There is nobody. This is an unprecedented 

act where the President of the United States has taken the position 

that a high-level Administration official should not even appear. 

And I asked—I will ask it more generally, then—have you been instructed to enforce or not enforce congressional citations? 

Mr. MUKASEY. I will give the same answer that I gave before, 

which is that conversations between executive branch members are 

privileged. And that doesn’t mean that I have or have not. 

Mr. WEXLER. Okay, fair enough. 

Should Congress pass a contempt citation, will you enforce it? 

Mr. MUKASEY. A contempt citation of—— 

Mr. WEXLER. With respect to the subpoenas, with respect to Mr. 

Bolten? 

Mr. MUKASEY. If you are talking about a contempt citation based 

on Mr. Bolten’s failure to appear—— 

Mr. WEXLER. Yes. 

Mr. MUKASEY [continuing]. In response to a direction by the 

President that he not appear, the answer is no. Because he can’t 

violate that request. 

Mr. WEXLER. Are you the people’s lawyer, as you said to the Senate, or are you the President’s lawyer? 

Mr. MUKASEY. I am the Attorney General of the United States. 

And it is my obligation to enforce all legally binding precedent. 

Mr. WEXLER. Thank you, Mr. Chairman. 

Mr. CONYERS. I am pleased now to recognize Judge Louie 

Gohmert of Texas. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

And thank you, Attorney General. It is a pleasure having you 

here. 

In talking with Darrell Issa during the break, previously, he was 

an enlisted man in the Army, and having gone though basic, as he 

did, and I went through officer basic—we were both sharing stories. 

And we are wondering, because of some of what we believe was 

torture—I mean, people were put at risk in the training we went 

through in the water. We drug one guy out, passed out. If we 

hadn’t been there, he would have died. 

If we can find our drill sergeants’ names, would you be willing 

to prosecute them for water torture? 

It was pretty rough, what we went through. 

Mr. MUKASEY. I don’t—I don’t know what you went through. And 

I am not going to—I have expressed a reluctance to answer 

hypotheticals. And I am—— 

Mr. GOHMERT. Well, the truth is, apparently, the Army believed 

that there were some risks in making us go through training like 

65 

that. But because of the risk that we faced by those who hated our 

country and wanted to destroy it, it was worth putting us through 

that kind of rigorous training. 

So it just occurs to me that we have people in uniform of our own 

country that go through worse so-called torture by drill instructors 

than those that are being defended in Congress at this time who 

want to destroy our country. 

But now I am very concerned about this issue, and it came up 

in your first series of questions, about would you go after our intelligence officers or our military officers who relied on the representations, no matter how good or bad, by a prior Attorney General, 

by a prior Justice Department, and prosecute them for following 

that instruction from the Department of Justice. 

The message that would come out of that is devastating. For people who are in uniform, for intelligence officers to be told, ‘‘You follow the instructions and the direction of the Justice Department 

and that is meaningless because we still may come after you and 

put you in jail,’’ will have such a chilling effect on the protections 

of this country and the kind of people that lost their lives on 9/11, 

and it really scares me. 

Now, if we disagree with the position of a Justice Department, 

we can do in this great country what was done when people raised 

Cain over our friend Alberto Gonzales. There are some things that 

could have been done better. No question about that. That is how 

we move forward. 

But I, for one, and I know there are plenty others that appreciate 

the fact that you are not willing to do what was done in the movie 

‘‘Animal House’’ there where a guy put his hand around the poor 

guy whose car had been wrecked and said, ‘‘Hey, you messed up. 

You trusted us.’’ 

We shouldn’t have Attorney Generals in that position, and I appreciate the fact that you really don’t want to go there. 

Now, I also had some concerns, wasn’t there a sergeant who was 

kidnapped, and because FISA had gone out, we were blind for at 

least 3 days, we gave his captors 3 days’ lead time when we 

couldn’t protect one of our own? Was there something to that story? 

Mr. MUKASEY. I have heard an account relating to a delay necessitated by applying for authorization to conduct surveillance. We 

prepared the papers as quickly as we could and applied. 

I think that puts a human face on the problem posed by delays 

generally. I am not familiar with the details, but I do know that 

we acted within a matter of a couple of hours to put together the 

necessary papers to try to resolve that. 

Mr. GOHMERT. You had some hypothetical thrown at you by my 

friend, and I have great respect for the Chairman of the Immigration Subcommittee talking about Monica Goodling. And she did say 

words to the effect that she may have stepped over the line when 

she used political considerations. 

But my understanding of her testimony and my understanding 

in talking with her afterwards was that wasn’t about immigration 

judges, that was about staff. And she had concern, as conveyed to 

me, that where someone says that laws like election fraud, we 

shouldn’t bother prosecuting those, that she felt like that was a poVerDate Aug 31 2005 13:36 Oct 21, 2008 Jkt 000000 PO 00000 Frm 00069 Fmt 6633 Sfmt 6601 H:\WORK\FULL\020708\40741.000 HJUD1 PsN: 40741
66 

litical consideration that merited her consideration in whether or 

not to hire them. 

That is the kind of political consideration she was talking about, 

General, that some people—she thought perhaps that is a political 

consideration, would they follow the law, prosecute all laws, because some people pick and choose between which laws. 

And she was a wonderful employee, and I think she was done 

wrong here, and I just wanted to make sure the record was 

straight, as I believe, of what she said and what she meant here 

before this Committee. 

Now, I see my time has run out. I am grateful you are here. And 

I am grateful you are the Attorney General. Thank you. 

Mr. CONYERS. The Chair recognizes William Delahunt, the distinguished gentleman, ex-prosecutor, from Massachusetts. 

Mr. DELAHUNT. Thank you, Mr. Chairman. 

Mr. Attorney General, in response to the first question that was 

posed by Chairman Conyers, maybe I misunderstood your response, 

but it went something like this, that, if an opinion was rendered 

that an individual acted in a way pursuant to a legal opinion of the 

Attorney General, that would insulate him or her from any criminal responsibility regarding his actions as an assistant Attorney 

General, or someone from the White House. 

Or maybe I am confused. Because it sounded like a brand-new 

legal doctrine to me. 

Mr. MUKASEY. I think what I said was that we could not investigate or prosecute somebody for acting in reliance—we, being the 

Justice Department—could not investigate or prosecute somebody 

for acting in reliance on a Justice Department opinion. 

This is the question specifically concerning—— 

Mr. DELAHUNT. Okay, but—— 

Mr. MUKASEY [continuing]. The disclosure that waterboarding—— 

Mr. DELAHUNT. Okay. If that Justice Department opinion was inaccurate, and in fact violated a section of the, you know, U.S. criminal code, that reliance is, in effect, an immunity from any culpability, any criminal culpability? 

Mr. MUKASEY. It is a justified reliance that could not be the subject of a prosecution. 

Immunity connotes culpability. 

Mr. DELAHUNT. You know, this is—this is brand-new legal theory, at least in terms of my own legal scholarship. 

I mean, relying on an opinion that has—is inaccurate, that is 

mistaken—and I am not looking to prosecute any, you know, individual in the Department of Justice or any of our government agencies. But one would only need to secure a Department of Justice 

opinion to be insulated from prosecution. 

Am I accurately portraying your position? 

Mr. MUKASEY. What I said was that the disclosure that waterboarding was part of the CIA interrogation program at the time 

that it was carried out and that it was permitted by a Justice Department opinion would bar—should bar—an investigation of the 

people who relied, justifiably, on that opinion in conducting their 

activity—— 

67 

Mr. DELAHUNT. But for—excuse me, for the sake of argument, let 

us hypothetically concede that waterboarding is in contravention to 

an international obligation, pursuant to the Convention against 

Torture. 

And if an opinion was rendered that amounted to malpractice 

that whoever employed that particular technique, simply by relying 

on that opinion would—ought not to be investigated or would be legally barred from investigation and criminal responsibility—is that 

what you are telling us? 

Mr. MUKASEY. If you are talking about a legal mistake, there is 

an inquiry with respect to, not the OLC opinions I am talking 

about, but other OLC opinions relating to surveillance that relate 

to whether people properly rendered opinions or didn’t. 

But to rely on an opinion that some later Attorney General 

thinks is mistaken would, yes, bar the person who so relied in good 

faith from being prosecuted. 

Mr. DELAHUNT. I find that—I find that position a new legal doctrine, if you will. The law is the law. We can all have opinions in 

terms of our understanding and interpretation of the law. 

And if what you are saying—and if we can agree, just for the 

sake of discussion purposes, that waterboarding violates not only 

American domestic law, but our international obligations under the 

Convention of Torture, if there is an opinion promulgated by the 

department, it insulates those who actually perpetrated the act or 

even ordered the act to be conducted. 

Mr. MUKASEY. The laws you are talking about are phrased in 

general terms as to which there is a great deal of dispute, some 

people lined up on one side, others lined up on another. 

If it comes to pass that somebody at a later date finds that the 

opinion should have been different from what it was, the person 

who relied in good faith on what the person who arrived later says 

was an erroneous determination is protected, because to do otherwise would be to say to everybody out there, ‘‘You can’t rely on 

any——’’ 

Mr. DELAHUNT. But is there legal precedent for that statement 

that you just made to this Committee? 

Mr. MUKASEY. There is a practical consideration. 

Mr. DELAHUNT. Okay. But there is not a legal precedent for it? 

Mr. MUKASEY. I can’t sit here and cite you a case. 

Mr. DELAHUNT. Okay. 

I yield back. 

Mr. CONYERS. The Chair recognizes Linda Sa ́nchez, who is the 

Chairperson of Subcommittee number five, Administrative Law. 

Ms. SA ́ NCHEZ. Thank you, Mr. Chairman. 

And thank you, Mr. Mukasey, for coming and indulging our questions. 

One month ago Chairman Conyers, Representative Pascrell and 

I sent you a letter addressing our concerns about the growing number of deferred and nonprosecution agreements pounded out by 

Federal prosecutors. 

To date, we have yet to receive a response from your office. We 

discussed this personally on the phone yesterday. 

But I just want to bring to your attention that that letter highlighted a study that was conducted by Lawrence Finder and Ryan 

68 

McConnell, which found that the number of deferred and nonprosecution agreements between the Department of Justice and 

corporations had grown exponentially last year to 35 from just five 

in the year 2003. 

Having said that, that study in many ways is incomplete because 

in fact there is no requirement to report these agreements and 

therefore we are not even sure exactly how many agreements between corporations and Federal prosecutors actually exist. 

I am curious in knowing when you will disclose to this Committee all of the information relating to these agreements that was 

requested in our letter of January 10th. 

Mr. MUKASEY. You are right, we discussed this yesterday, and I 

am going to get back as promptly as I can with respect to your letter. 

I do want to stress, as we discussed yesterday, that the increasing phenomenon of monitors is something that we noticed well before there came to be publicity about it and have been looking into 

it. 

We have asked the Attorney General’s Advisory Committee, 

which is a group of United States attorneys from around the country who can gather information from United States attorneys about 

the prevalence of the phenomenon and whether there is a way of 

coming up with best practices or guidelines—— 

Ms. SA ́ NCHEZ. But the question I am asking you is, when can we 

expect to receive the information that we have requested in the letter? 

Mr. MUKASEY. I can’t give you a deadline. That is one of the 

things we want to gather up, to figure out not only the numbers, 

but what to do. 

Ms. SA ́ NCHEZ. Okay. 

Mr. MUKASEY. And it is an outgrowth of increased prosecution of 

corporations—— 

Ms. SA ́ NCHEZ. Let me ask you this. Do you support the full disclosure by the Department of Justice of all deferred and nonprosecution agreements prospectively in the future, moving forward? 

Mr. MUKASEY. With respect, I would like to hear from the Attorney General’s Advisory Committee as to not only the prevalence of 

the phenomenon, but whether confidentiality agreements serve or 

disserve the larger interest in seeing to it that wrongdoing is rooted out, that people who have to be prosecuted, individuals that 

have to be prosecuted are, and that unnecessary damage isn’t done. 

Ms. SA ́ NCHEZ. So, at this point—— 

Mr. MUKASEY. I will try to get the information for you. 

Ms. SA ́ NCHEZ. Okay. Now, attention to the issue of deferred prosecution agreements came about, in part, because of the actions of 

U.S. Attorney Christopher Christie. 

In the process of deferring a prosecution, Mr. Christie selected 

his past superior, former Attorney General John Ashcroft, to serve 

as a Federal monitor and collect fees reported to be in excess of $52 

million. 

I know that, during your testimony to the Senate Judiciary Committee, you admitted deficiencies in the way that Federal monitors 

are selected, and made the suggestion that, in the future, Federal 

69 

prosecutors may have to submit reports to the department on the 

selection of those monitors. 

Do you believe that a lack of guidelines on how independent corporate monitors are selected has fostered the appearance of cronyism, where U.S. attorneys can appoint their friends and former 

superiors to those lucrative positions? 

Mr. MUKASEY. I think it is helpful to have the experience of other 

U.S. attorneys, before a U.S. attorney embarks on a course of conduct, be it the selection of a monitor or anything else. 

And without getting into labels like ‘‘cronyism’’ and so on, I think 

it is useful to know what the best way is to go about it, whether 

it involves the company in the process of selecting from a group or 

what. 

Ms. SA ́ NCHEZ. Let me ask you—do you think that the contract 

that was awarded to Mr. Ashcroft was excessive? 

Mr. MUKASEY. I don’t know the details of the contract that Mr. 

Ashcroft has. And I would point out that the money that we are 

talking about is not public money. This is money that comes from 

the corporation. I know no other details. 

Ms. SA ́ NCHEZ. One of the things that I am very deeply concerned 

about, with respect to this particular issue, is the lack of any judicial oversight in regard to deferred prosecution agreements. 

And I am going to give you, just, an example. 

For example, if an individuals is charged with a crime and 

agreed to a plea bargain with the prosecution, then that plea must 

go before a judge who has the power to deny and, in some cases, 

alter that agreement, based on judicial discretion. 

However, with regard to deferred prosecution agreements that 

are struck between Federal prosecutors and corporations, neither 

party ever sees the inside of a courtroom, let alone have to put 

these agreements before a judge. 

So I am wondering if you concerned that this has created two 

completely different systems of justice, one for individuals, that is 

accountable to the judiciary, and another for corporations, that is 

based entirely on the discretion of Federal prosecutors. 

Mr. MUKASEY. All right. Prosecutors proceed under guidelines 

that are very strictly set by the department, that are very strictly 

reviewed by the department. 

Ms. SA ́ NCHEZ. But there is no judicial review of those deferred 

prosecutions—or am I mistaken on that? 

Mr. MUKASEY. I think you are not mistaken about the question 

of whether all such agreements are reviewed. 

Ms. SA ́ NCHEZ. Do you think it is generally good policy that they 

would not be reviewed by a judge? 

Mr. MUKASEY. In order for an agreement to be ordered, it would 

certainly have to be reviewed by a judge. 

I think that the decision whether to charge or not charge has always been an executive decision. 

Ms. SA ́ NCHEZ. And yet—— 

Mr. MUKASEY. And prosecutors reach those decisions in all settings—— 

Ms. SA ́ NCHEZ. But yet—— 

Mr. MUKASEY [continuing]. Regardless of whether they involve 

nonprosecution agreements. 

70 

Ms. SA ́ NCHEZ. I see that my time has expired. I will submit follow-up questions in writing. And I thank the Chairman for his indulgence. 

Mr. CONYERS. The Chair is pleased to recognize the gentleman 

from Tennessee, Steven Cohen. 

Mr. COHEN. Thank you, Mr. Chairman, Mr. Mukasey. 

I just want to follow up a little bit on what Mr. Wexler asked 

you. You represent the United States of America. I know that. But 

does that also include representing Congress in certain circumstances? 

Mr. MUKASEY. It includes representing all interests that I have 

to represent. I am not familiar with a situation in which the Attorney General directly represented Congress. I am not ruling it out. 

Mr. COHEN. Well, in a contempt situation, would you not be in 

essence representing the actions, the instructions of the United 

States Congress, if they voted to cite somebody for contempt? 

Mr. MUKASEY. In a contempt situation, if a contempt prosecution 

goes forward, the statute says that it must go forward. And so the 

Justice Department would be acting at the direction of Congress to 

the extent it made a contempt finding and directed that an action 

proceed. 

Mr. COHEN. So if Congress does vote to cite Mr. Bolten and Ms. 

Miers for contempt, you would prosecute them as the statute requires. 

Mr. MUKASEY. I think what I said was there is a great deal of 

authority that says that that prosecution cannot go forward in response to a direction from the President that they not comply with 

a subpoena. 

Mr. COHEN. But if Congress does cite them, then Congress has 

gone forward. And then you have got a different situation, sir, I 

would submit to you. 

You have got to make a Nicholas Katzenbach decision. 

Mr. MUKASEY. I am not familiar with the decision of Nicholas 

Katzenbach that you are referring to. 

Mr. COHEN. Remember when he showed some kind of moral decision to not follow the orders of a President that were improper? 

Mr. MUKASEY. The decision about whether to permit a senior adviser to testify before Congress raises substantial issues of separation of powers. And in response to an order that that not go forward, I cannot envision going forward. 

Mr. COHEN. So if Congress does vote to cite them for contempt, 

you would not comply with the duties of your office and prosecute 

that case, based on some other opinion you have of Congress overreaching, in your opinion? 

Mr. MUKASEY. I will examine what happens when it happens. 

But I would certainly not hold any hope or expectation that I would 

act in contravention of a longstanding authority which says that 

senior advisers to the President are not obligated to—cannot be 

prosecuted for contempt in response to a direction that they not appear—direction from the President. 

Mr. COHEN. Is it that they shouldn’t testify, or they shouldn’t appear? 

Mr. MUKASEY. Senior advisers? 

71 

Mr. COHEN. Yes, sir. Should they not testify or should they not 

appear? 

Mr. MUKASEY. The latter, I believe. 

Mr. COHEN. They shouldn’t appear and, obviously, then not testify? 

Mr. MUKASEY. I believe that is correct. 

Mr. COHEN. Would you think it would be more appropriate to appear or have a counsel appear? 

Mr. MUKASEY. My notion of propriety is something that, I have 

said before and I will say again, I try to leave out of it. 

Mr. COHEN. But that is an action. If somebody does not even appear, that is a separate action from not testifying. One thing is asserting an immunity, and saying, ‘‘I cannot testify to that because 

I have an executive privilege.’’ 

Another thing is the action of not even responding and coming 

to the congressional Committee, and/or have somebody come on 

your behalf. That is a separate action. 

Do you think executive privilege goes so far as to say, you don’t 

have to appear and assert your privilege? 

Mr. MUKASEY. I understand the distinction. I believe that the authority, with respect only to senior advisers to the President, is 

that they not only need not testify; they need not appear. 

Mr. COHEN. Let me ask you this. Ms. Goodling said she went beyond. And she had immunity. And she obviously did something. 

You said something about immunity implies culpability, right? 

And she got immunity when she testified here. And she said she 

went too far. 

What have you done to instruct your Justice Department not to 

go too far and not to be political in whom you hire and whom you 

use the honors program, in particular? 

Mr. MUKASEY. I have had, in conversations and public pronouncements—being a very large number—in which I have made 

it quite clear—— 

Mr. COHEN. Any memos? 

Nothing in writing? 

Mr. MUKASEY. As I sit here, I can’t—I will provide you with any 

memos that embody that thought. There is plenty in writing that 

embodies that thought. 

Mr. COHEN. Let me ask you this. The drug war—we have had 

a drug war for many years, going back to Nixon. It has been a long 

time we have had drug wars. 

We still have it. Obviously, we haven’t—you would agree we 

haven’t necessarily won it; it is still going on, right? 

Mr. MUKASEY. I believe we continue to prosecute drug cases. 

Mr. COHEN. What do you think we should do differently to win 

the drug war and the scourge of meth, the scourge of crack and cocaine, and drugs like that? 

What can we do to win that war, or should we continue to do 

what we have been doing, over the years? 

What changes can you recommend? 

Mr. MUKASEY. We are changing our strategies in response to the 

strategies of the people who are trying to sell this stuff. 

We are cooperating with foreign governments to a degree unprecedented in our history, most particularly with the government of 

72 

Mexico, which has extradited people in record numbers and is experiencing enormous violence, as it constricts the areas in which 

drug cartels can function. 

And they have undertaken, literally, a life or death struggle, in 

which they are helping us and we are trying to help them. 

Mr. COHEN. I was looking more—— 

Mr. CONYERS. The gentleman’s time has expired. 

Mr. COHEN. Thank you, Mr. Chairman. 

And thank you, Mr. Mukasey. 

Mr. CONYERS. The Chair recognizes Adam Schiff, the distinguished gentleman from California and the former assistant U.S. 

attorney. 

Mr. SCHIFF. Mr. Attorney General, I appreciate your being here. 

As a former member of the department, I am delighted that there 

is new leadership at the department. 

I am gravely concerned, though, about your testimony on the torture issue, which I find murky, ambiguous, and which establishes 

no bright line. 

I am concerned about it for what it says to our own personnel, 

and I am concerned about it for what it says to the rest of the 

world. 

And I think it will be very hard for you to make the argument 

with other Nations, when our troops are captured on the battlefield, that they cannot torture because we don’t torture. 

I think our argument will be undermined by any ambiguity on 

that subject here at home. 

And I believe that the buck really stops with you, Mr. Attorney 

General. I don’t think that it can be delegated to a relatively anonymous attorney at the Office of Legal Counsel to decide what is 

lawful and what isn’t lawful. 

What I would like to ask you is the following. Shouldn’t it be the 

job of the Attorney General to investigate whether the law has 

been violated, notwithstanding whether there is an opinion by a 

lawyer at the DOJ that believes otherwise? 

Shouldn’t it be the responsibility of the Attorney General to investigate whether the law has been broken? 

And, if the law has been broken, then come before the American 

people and say: The law was broken; people were tortured in violation of the law; we have curtailed that practice; and I am recommending either, A, that those responsible be prosecuted or, B, that 

those responsible not be prosecuted because they acted in goodfaith reliance on an opinion; or that they be prosecuted and the 

President consider the power of the pardon. 

But to abdicate, in my view, to say that, because of an opinion 

of legal counsel, we don’t need to investigate whether the law was 

broken, seems to me a belittling of your responsibility as Attorney 

General. And I wish you would comment on that. 

Mr. MUKASEY. Generally, I have resisted requests to comment on 

vast, unfocused questions. 

Mr. SCHIFF. Well, let me focus the question. Why don’t you investigate whether the law was broken, and then make a determination 

about whether prosecution is warranted, instead of taking a position you are not even going to investigate whether the law was broken? 

73 

Mr. MUKASEY. The only signal for the conduct of such an investigation is the disclosure that activity that some people claim is illegal but is in fact the subject of an opinion, namely that it was 

legal for inclusion in the CIA interrogation program—that is the 

only signal for the opening of an investigation. 

That cannot signal the opening of an investigation without telling people that they cannot rely on Justice Department opinions. 

Mr. SCHIFF. Mr. Mukasey, are you saying—— 

Mr. MUKASEY. Also—— 

Mr. SCHIFF. Mr. Mukasey—because I have a limited amount of 

time and I want to be very specific in my questions—are you saying that, even if you believe that the law was violated, you lack the 

power to open an investigation into that? 

Mr. MUKASEY. If I believe that a particular practice is unlawful, 

then, if it is presented to me in concrete terms, I can take steps 

to say that it is unlawful, going forward. 

Mr. SCHIFF. But we are presenting—— 

Mr. MUKASEY. But I—— 

Mr. SCHIFF. Mr. Attorney General—— 

Mr. MUKASEY. One comment that you made that is very portentous, and needs to be corrected, and that is the suggestion that so 

much as a line of what I said endangers American troops. 

American troops fight in uniform—— 

Mr. SCHIFF. I understand that. I am not—— 

Mr. Attorney General, I am not trying to—— 

Mr. MUKASEY. The Geneva Conventions—— 

Mr. SCHIFF. I am not—yes, but it is my time. I would like to ask 

the question. And the Attorney General asked for a specific question. 

I am not, in any way, trying to make equivocal—or equivalent— 

our troops in the field, and what Al Qaida is doing. Don’t even go 

there, Mr. Attorney General. 

But what I am saying is, if we don’t establish a bright line, in 

this country, that we don’t torture, then it makes it very hard for 

us to argue to other countries that they shouldn’t torture our people, period. 

And I would still like an answer to my question. Why doesn’t the 

Attorney General of the United States have the power, notwithstanding a subordinate lawyer in the Office of Legal Counsel, to investigate whether a crime has been committed, if you believe that 

torture has been committed, in violation of the law? 

Why wouldn’t you have the power to investigate that? 

Mr. MUKASEY. We have a bright line. We bar the torture. The 

evaluation of whether a particular practice constitutes torture 

could be presented to me only in a particular situation, namely, 

whether it was defined, part of a proposed program, in which case 

I would pronounce on it one way or the other, as I think I—— 

Mr. SCHIFF. And you think that is a bright line that we can hold 

up to the rest of the world, that it depends on whether it is part 

of a program authorized by an attorney in the Office of Legal Counsel? 

Is that the standard we would ask the rest of the world to hold 

up? 

74 

Mr. MUKASEY. We have and do defend our position before the 

rest of the world. We have people in the State Department who do 

a superb job at that. And we will continue to do that. 

Mr. SCHIFF. Does the definition of torture—if I can ask one last 

question, Mr. Chairman? 

You have said, in your Senate testimony, that—I believe—that, 

if you were being waterboarded, you would consider it torture. 

Does the definition of torture depend on who is being tortured or 

the circumstances in which they are being tortured? 

Mr. MUKASEY. I said, in my Senate testimony, that it would seem 

like torture to me. I said that as part of a much larger amount of 

testimony that indicated, I think, quite clearly, that I would not 

use my own tastes and preferences as the basis for arriving at a 

legal determination about whether a practice that was actually put 

before me, in concrete terms, was or was not torture. 

Mr. SCHIFF. Are you taking the position, Mr. Attorney General, 

that a practice which may be torture under certain circumstances 

is not torture under others, because either the information is desirable—— 

Mr. CONYERS. The time of the gentleman has expired. You may 

finish this question and get a response. 

Mr. SCHIFF. Thank you, Mr. Chairman. 

And the question is, are you taking the position that whether 

something is torture or not depends on who is being subjected to 

the technique and the desirability of the information? 

Does it vary, or is there simply one standard which is governed 

by the nature of the coercion? 

Mr. MUKASEY. The question of torture turns on what is in the 

torture statute, which does not speak, so far as I know, to the nature of the information. It speaks to the intent of the person imposing whatever it is that is claimed to be torture, and depends on 

other circumstances. 

Mr. SCHIFF. I would only say, that is not a bright line, that I 

think any of us can apply. 

Mr. CONYERS. The gentleman’s time has expired. 

The Chair will call for a 5-minute recess. 

[Recess.] 

Mr. CONYERS. The Committee will come to order. 

The Chair recognizes Hank Johnson of Georgia. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Mr. Attorney General, it is good to have you here today. 

The Web site, tpmmuckraker, which played an important role in 

providing information to the public concerning the U.S. attorney 

scandal, reveals that it has recently been removed from the Department of Justice’s press release e-mail distribution list. 

Has there been a change in the press release distribution list 

since you have become Attorney General? 

Mr. MUKASEY. The short answer is I am not familiar with how 

the distribution list of press releases is arrived at. 

I do know that all the press releases that we issue are on our 

Web site. So they should be generally available. But I am not familiar with—— 

75 

Mr. JOHNSON. Have there been any names, any organizations 

taken off the list, to your knowledge, since you have become Attorney General? 

Mr. MUKASEY. I do not know. 

Mr. JOHNSON. So it was not you who made the decision to take 

this Web site, tpmmuckraker, off of the press release distribution 

list. 

Mr. MUKASEY. I was not aware of it until it was called to my attention in a letter, I believe, from the Chairman. 

Mr. JOHNSON. All right. Now, Mr. Attorney General, in your Senate testimony, you stated that you would not declare water boarding illegal because it would ‘‘tell our enemies exactly what they can 

expect.’’ 

Attorney General, can you answer the following question? Would 

it be lawful for an American interrogator to use the rack and 

screws during a critical interrogation? 

Mr. MUKASEY. There is a line of hypotheticals that one could go 

down that would get to an indication to an enemy about what sort 

of thing we do and what sort of thing we don’t do. 

That is the reason and that is the only reason that I am not 

going to get into hypotheticals about what might or might not be 

permissible. 

We have a classified program of interrogation that has gone 

through OLC opinions, that have been permitted by OLC opinions, 

and to which we adhere. Waterboarding was once part of that program. It is no longer. And that is all I can say. 

Mr. JOHNSON. Well, let me ask you this. Would the use—— 

Mr. MUKASEY. People could go down the list of hypotheticals involving matters that are—— 

Mr. JOHNSON. You would never say that any of these strategies 

or interrogation techniques would be impermissible under any 

standard. Let us say the use of the electric shock as a harsh interrogation tactic. Would that ever be legal for us to employ? 

Mr. MUKASEY. Once again, one could go down an entire list of 

hypotheticals that would indicate what goes on one side of the line 

and what goes on the other. 

There are specific prohibitions against murder, rape, and other 

matters that are the subject of specific legislation, and, obviously, 

Congress could, if it chose, bar any specific practice and make it 

unlawful. 

We can go down a list of hypotheticals all afternoon. 

Mr. JOHNSON. All right. Well, I won’t do that, but I will go at 

it from this standpoint. 

Under what circumstances would it ever been permissible under 

international law to interrogate a U.S. citizen, a foreign—an enemy 

nation, to interrogate a U.S. citizen by strapping the U.S. citizen 

to a board and suffocating him or her with water, with the intent 

to create the fear of death? 

When would that ever be permissible under international law? 

Mr. MUKASEY. Once again, I am not going to go through a list 

of hypotheticals of what might be permitted or might not be permitted to us or anybody else, because to do so would indicate the 

contours of what may or may not be permitted under a program 

that is classified. 

76 

I understand that one can create an effect by doing that, but I 

am not going to respond to it. 

Mr. JOHNSON. And this classified program is not for the eyes or 

ears of the Members of this Committee. 

Mr. MUKASEY. To my knowledge, it is, it has been for the eyes 

and ears of the Intelligence Committee, which oversees the CIA, 

which administers the program. 

Mr. JOHNSON. Well, let me ask you about the investigation of the 

abuse with respect to CIA tapes investigation. 

Will you now expand the investigation into the CIA tapes destruction to inquire into the legality of the underlying interrogations? 

Mr. MUKASEY. The progress of the CIA tapes investigation is entirely in the hands of the man who is conducting it, and that is 

John Durham. 

Mr. JOHNSON. And he is a man that was hand-selected by you. 

He is a Department of Justice employee, career employee. 

Mr. MUKASEY. He is a career prosecutor who was hired and compiled an enviable record long before I got here and is going to be 

here long after I leave. 

Mr. JOHNSON. What guarantees would the American public have 

that Mr. Durham is not acting to please his employers, his boss, 

which would be you? 

Mr. MUKASEY. John Durham, he doesn’t report directly to me. He 

reports, as do other U.S. attorneys, to the Deputy A.G., who then 

reports up to me. 

Mr. CONYERS. The gentleman’s time has expired. 

You may finish your response, General Mukasey. 

Mr. MUKASEY. John Durham will do one of two things at the end 

of his investigation. He will either bring charges, which will necessarily be made public, or he will decline to bring charges, which 

I can’t imagine would not be made public. 

Mr. JOHNSON. Thank you, Mr. Attorney General. 

Mr. CONYERS. The Chair recognizes Anthony Weiner, the distinguished gentleman from New York. 

Mr. WEINER. Thank you, Mr. Chairman. 

Attorney General, welcome. 

One of the most noteworthy things about your ascension to Attorney General is, hopefully, it ends the partisanship and the sense 

of politicization of the agency, and I think you would agree that the 

agency, in Democratic and Republican administrations alike, is 

populated by extraordinary professional prosecutors and their support staff. 

And it is very important that they are getting the message, hopefully, from you, that while we might disagree on things substantively and politically, the notion that the agency is on a path 

to getting back to a place to where it is viewed as a professional 

place, and there aren’t political appointments being made, is something that is laudable. 

And I think the message should go out that—and it has, I think, 

to your credit, that the days of political hiring are behind us. That 

doesn’t mean our investigation would end, but I think it is important that that message be sent. 

77 

Mr. Attorney General, could I have your views on the COPS program? Was it a success? 

Mr. MUKASEY. So far as I know, the COPS program has been a 

success in that it—in places where it was used as it was supposed 

to be used, i.e., as money that would encourage localities or would 

give localities the opportunity to try out certain configurations of 

their police force, would then be met with funds from those localities when they found that that was worthwhile. 

To that extent, I believe it was successful. 

Mr. WEINER. Was it a failure in any degree? What is your sense 

of the—what scenario that it didn’t succeed? 

Mr. MUKASEY. I don’t know enough about it. I don’t know of any 

program that has ever succeeded completely nor do I have any reason to believe that the COPS program was, in any sense, larger or 

significantly small, even, a failure. 

Mr. WEINER. The reason I ask this is there seems to be some organizational schizophrenia within the Bush administration about 

the program, but Attorney General Ashcroft, for example, said it 

was one of the most important tools to drive down crime during the 

period that crime precipitously dropped in this country. 

Democrats and Republicans alike, including the former Chairman, we passed an authorization, the first time it happened in a 

while, to the credit of the former leadership of this Committee, in 

a bipartisan way, we passed. The President signed it. 

One of the things that he pointed to was the fact that the COPS 

program was being re-funded. 

And then we, year after year, open up the budget and the folks 

at OMB zero out the program. And so it seems that there is an internal debate going on within the Administration. 

On one hand, there are people are like yourself and others who 

have sat in that seat who have said the program is a success, and 

then there are the precipitous drops in the funding to the point 

where it is basically zero for the hiring component now. 

But would I put you in the camp with the President and John 

Ashcroft to say that this is a program that we should try to figure 

out ways to save or is this—or do you believe that the zeroes that 

are in the budget reflect what the policy is now of the Administration and believe the COPS program should be allowed to expire? 

Mr. MUKASEY. I don’t think I should be put to a choice between 

one camp or the other camp when it comes to a specific program. 

What I have tried to do and what I think others at the department 

are trying to do is to approach the underlying problem that is addressed by the COPS program and a whole lot of others, including 

the Safe Streets program and a whole lot of other programs, and 

that is to cut down crime and to approach it in a coherent way. 

When we fund a center that gathers gang information and disseminates it to the local communities and thereby allows them to 

meet that particular kind of crime, we act in a way that, to a certain extent, diminishes the need for other—— 

Mr. WEINER. Yes, but you will forgive me. I don’t know what program the Justice Department can possibly implement that diminishes the need for cops on the street, right? I mean, I think people 

agree. 

78 

Are you familiar with the record of former Mayor Rudolph 

Giuliani? 

Mr. MUKASEY. I am familiar with part of it. I am not an expert 

on it. 

Mr. WEINER. Are you familiar with the good parts? Not talking 

about the bad parts. 

Mr. MUKASEY. I am familiar with some of the good parts and 

some of the good parts of the record of his predecessor. 

Mr. WEINER. The reason I mention it tongue in cheek is that it 

was Mayor Giuliani, a Republican, who was successful in driving 

down crime, credited the ability to do that with the influx of Federal dollars that allowed about 7,000 additional cops to be hired in 

New York City. 

I don’t think that Mayor Giuliani or Bill Clinton or your predecessor would say that one program necessarily works alone, but the 

fact of the matter is the Administration has said zero dollars and 

zero cents would go to hiring police officers in this budget. 

And I am just trying to get a sense from you whether that is 

something you are going to join us and to try to change or whether 

you are going to be an advocate for that philosophy. 

Mr. MUKASEY. I am going to try to focus the money where it can 

best be used. I agree that there are some realities of the budgeting 

process that result in money not being provided for in a budget, 

being put in by Congress and so on. 

A lot of that is way beyond me, I am new to this, and, to a certain extent, above my pay grade. That said, I agree that you need 

cops to fight crime. 

Mr. WEINER. And I thank you for being here. In case you hadn’t 

checked your initiation manual, you get one hearing to say ‘‘I am 

new here.’’ So the next time, you will lose that cover. 

But thank you for your time. 

Mr. CONYERS. Thank you, sir. 

The Chair is pleased to recognize Artur Davis, himself a former 

assistant U.S. attorney, from Alabama. 

Mr. DAVIS. Thank you, Mr. Chairman. 

General Mukasey, welcome. 

Let me, as we conclude today, let me turn to a subject that has, 

frankly, not come up. It is the question of political influence or possible political influence over prosecutions. 

There have been three instances in the last year when this Committee has received sworn testimony regarding the possibility that 

there were political considerations brought to bear around charging 

decisions by local U.S. attorneys. 

In my state, I represent the state of Alabama, a woman, who 

happens to be a Republican, testified under oath before the Committee staff in private session and provided a sworn affidavit to the 

Committee. 

She alleged that she was present during a conversation in which 

Republican political operatives discussed the viability of prosecuting or the desirability of prosecuting the governor of Alabama, 

whom they happened to be locked in a political contest with. 

She also said in her sworn testimony that she was told on another occasion that the former deputy chief of staff to the President, Mr. Rove, had contacted senior officials of the Department of 

79 

Justice and spoken about the desirability of prosecuting the former 

governor of Alabama. 

This Committee also heard sworn testimony from David Iglesias, 

who is United States attorney in New Mexico, who asserts that a 

Member of the United States Congress and a Member of the 

United States Senate both contacted him to inquire about the status of ongoing investigations and to question whether sealed indictments might be unsealed in time to shape the November 2006 elections. 

And, finally, John McKay, formerly the United States attorney in 

Seattle, Washington, testified before this Committee that he received a phone call from the chief of staff to a Member of Congress 

questioning about whether he, McKay, intended to bring a particular prosecution. 

I understand that you have not had an opportunity to make an 

assessment of whether the claims are accurate or not, but I want 

to pose this set of questions to you. 

Can you think of any instance, based on your knowledge of the 

law, in which it would be appropriate for a political operative to 

urge that a U.S. Attorney prosecute someone? 

Mr. MUKASEY. I can’t conceive of any circumstance in which it 

would be appropriate for the U.S. attorney to have such a conversation. 

Mr. DAVIS. Can you conceive of any circumstance in which it 

would be appropriate for a United States Senator to pick up the 

telephone and ask a U.S. attorney about the status of an investigation? 

Mr. MUKASEY. Once again, I can’t conceive of any circumstance 

in which it would be proper for the United States attorney to respond to any inquiry from any political figure about the bringing 

or the withholding of a prosecutor’s decision. 

Mr. DAVIS. Can you think of any instance in which it would be 

appropriate for the deputy chief of staff, who had no legal counsel 

responsibilities under President Bush, can you think of any circumstance in which it would be appropriate for that individual to 

have contacted senior officials at the Department of Justice to urge 

the prosecution of a former governor? 

Mr. MUKASEY. I have issued guideline with regard to contacts—— 

Mr. DAVIS. Just answer that question as you answered the others. Can you think of any instance of appropriateness regarding 

that scenario? 

Mr. MUKASEY. There is a limited number of people, limited to a 

very small number—— 

Mr. DAVIS. I understand that and I will get that, but just so we 

can follow the line of questions, can you think of any instance in 

which it would be appropriate for a deputy chief of staff to inquire 

of a senior official about the status of a case? 

Mr. MUKASEY. I can’t think of a circumstance in which it would 

be appropriate for a senior official to respond to an inquiry of that 

sort with information about whether a prosecution is going forward 

or not going forward. 

Mr. DAVIS. So given those statements, General, given that the allegations have been made under oath before the Committee in all 

80 

three instances, the first question, how much would it concern you 

if all three of these sworn statements were true? 

Mr. MUKASEY. I can’t quantify my level of concern. What I can 

tell you—— 

Mr. DAVIS. Would it be a high level of concern? 

Mr. MUKASEY. I don’t think that it is appropriate for United 

States attorneys to be talking to political people about—— 

Mr. DAVIS. So given that—and I am pushing you because our 

time is limited. Given that, what steps have you taken to determine whether the claims of the Alabama lawyer or Mr. Iglesias or 

Mr. McKay are accurate? 

Mr. MUKASEY. The case involving the Alabama lawyer is, I believe, sub judice before a circuit court and—— 

Mr. DAVIS. But you understand that that is not a subject of the 

appeal. That is in no way the subject of what is being raised in the 

appeal. 

The question of whether there were improper contacts—— 

Mr. MUKASEY. That is an interesting point, because as far as I 

know, there has been no request for a remand. 

Mr. DAVIS. Well, but what I am asking you, sir—if I can just 

have an answer to my question, Mr. Chairman. 

What steps have you taken in any of those three instances to determine whether or not the—because you have stated that all three 

would raise serious concern. You have stated that all three, if so, 

would be improper. 

As the current Attorney General, what steps have you taken to 

see if these improprieties, in fact, happened, sir? 

Mr. MUKASEY. I have limited myself to the participation of the 

people on the other end of the telephone calls, and I have not made 

direct inquiry as to whether those instances occurred or what those 

responses were. 

I have made clear—— 

Mr. DAVIS. Given your concerns, why not? 

Mr. MUKASEY. I have made clear to the department that it is not 

proper for anybody—— 

Mr. DAVIS. But if it happened in the past, General—if he can answer my question, Mr. Chairman. 

Given that this may have happened in the past, given the allegations that have been made under oath before this Committee in 

public and private testimony, given that two of those allegations 

have been repeated before the U.S. Senate, given that you think it 

is inappropriate that these events happened, what steps have you 

taken to determine whether or not they occurred? 

Mr. MUKASEY. If any impropriety or any lapse of proper standards was engaged in by any United States attorney, that would be 

a subject initially for the Office of Professional Responsibility. 

Mr. DAVIS. Has the OPR conducted an investigation? 

Mr. CONYERS. The gentleman’s time has expired. 

Before we conclude this hearing, General Mukasey, on behalf of 

the Committee, I express our deep appreciation of your first appearance. It has been a lengthy one. I can assure you that the next 

one will not be as long, but it will be as equally important. 

We are going to go through the record and examine, each of the 

more than 30 Members, what they want to focus on next time. 

81 

It seems to me that because of the importance of your work and 

our responsibility, that if there are ways that we can advise you 

of the areas that we want to work in before you get here, so that 

this isn’t some kind of a pop quiz, we think that it would be more 

productive for all of us. 

And in that spirit, I thank you not only for what you have done 

and your cooperation, but what we have to do the rest of the year. 

Ms. JACKSON LEE. Mr. Chairman, may I put a unanimous consent request in the record? 

Mr. CONYERS. We would like to continue this relationship and I 

would also like to give, without objection, every Member 5 legislative days to add anything they wish to the record, as well as you. 

So I yield to the gentlelady from Texas for a unanimous consent 

request. 

Ms. JACKSON LEE. I thank the gentleman. 

I want to put into the record a letter to the Attorney General regarding the status of the DNA lab in Harris County and the district attorney’s office, and a letter regarding the treatment of 

imams at the Nation’s airports and H.R. 4545. 

Mr. CONYERS. Without objection, so ordered. 

And the Committee is adjourned. 

[Whereupon, at 3:21 p.m., the Committee was adjourned.] 

(83) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS, AND MEMBER, COMMITTEE ON THE JUDICIARY

Mr. Chairman, thank you for your leadership in convening today’s very important 

hearing on the oversight of the Department of Justice. I would also like to thank 

the ranking member the Honorable Lamar S. Smith, and welcome our extremely 

distinguished witness, the Attorney General of the United States, the Honorable Michael Mukasey. Welcome Mr. Attorney General. 

In addition to holding the seat of my hero, role model, and predecessor, the incomparable Barbara Jordan, one of the reasons that I have been so proud to be a member of the Committee on the Judiciary throughout my six terms in Congress is that 

this Committee has oversight jurisdiction over the Department of Justice, which I 

have always regarded as the crown jewel of the Executive Branch. 

In recent years the reputation of that Department, which has done so much to 

advance the cause of justice and equality for all Americans, has been tarnished. And 

that is putting it charitably. This Committee has no greater challenge and obligation to the nation than to help restore the Department of Justice to its former greatness. 

Anyone who has observed this Committee over the years knows that I have a deep 

and abiding passion about the subjects within its jurisdiction: separation of powers, 

due process, equal justice, habeas corpus, juvenile justice, civil liberties, antitrust, 

and intellectual property. But, Mr. Chairman, today I wish to focus on the record 

and performance of the Department of Justice in five areas: (1) the Department’s 

civil rights record; (2) the on-going investigation into the firing of the 8 United 

States Attorneys in December 2006; (3) the CIA’s destruction of tapes recording terrorist suspect interrogations; (4) the enforcement of U.S. federal laws to protect U.S. 

contractors in Iraq; and (5) the various cuts in the 2009 fiscal year budget. Allow 

me to describe my substantial concerns and the responses I hope to hear from the 

Attorney General. 

CIVIL RIGHTS ENFORCEMENT

Mr. Chairman, the Department of Justice is the nation’s largest law enforcement 

agency and it is no exaggeration to state that its Civil Rights Division used to be 

the nation’s largest civil rights legal organization. It wields the authority and the 

resources of the federal government on difficult and complex issues and has helped 

bring about some of the greatest advances for civil rights. However, the Department’s record under this Administration indicates that it is not living up to its tradition of fighting for equal justice under law. 

The Bush administration has abdicated its responsibility to enforce the nation’s 

most critical laws. Since January 20, 2001, the Bush Administration has filed 46 

Title VII cases, an average of approximately 6 cases per year. In contrast, the prior 

Administration filed 34 cases in its first two years in office alone, and 92 in all, for 

an average of more 11 cases per year. 

Furthermore, upon examining the types of cases prosecuted by the Department, 

an even more disturbing fact is revealed, the failure of the Department to bring 

suits that allege discrimination against African-Americans. According to CRS statistics from May 2007, there were 32 Title VII cases brought by the Bush Administration. Of those, 9 were pattern or practice cases, 5 of which raised allegations of race 

discrimination but only one case—1 case—involved discrimination against African 

Americans. In contrast, the Clinton Administration filed 13 pattern or practice 

cases, 8 of which involved racial discrimination. 

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The record is not much better when it comes to the subject of voting rights enforcement. After six years, the Bush Administration has brought fewer Section 2 

cases, and brought them at a significantly lower rate, than any other administration 

since 1982. 

The Voting Section filed a total of 33 involving vote dilution and/or other types 

of Section 2 claims during the 77 months of the Reagan Administration that followed the 1982 amendment of Section 2. Eight (8) were filed during the 48 months 

of the first Bush Administration and 34 were filed during the 96 months of the Clinton Administration. To date, only 11 have been filed so far during the present Bush 

Administration. 

Additionally, Mr. Chairman, most of the Department’s major voting-related actions during this Administration have been beneficial to the Republican Party, including two in Georgia, one in Mississippi and the infamous redistricting plan in 

Texas, which the Supreme Court struck down in part. For years we have heard stories of current and former lawyers in the Civil Rights Division alleging that political 

appointees continually overruled their decisions and exerted undue political influence over voting rights cases. Indeed, one-third of the Civil Rights Division lawyers 

have left the department and the remaining lawyers have been barred from making 

recommendations in major voting rights cases. 

Mr. Chairman, the Justice Department’s recent record is deplorable when it comes 

to enforcement of the federal criminal civil rights law. According to an analysis of 

Justice Department data by the Seattle Post-Intelligencer, civil rights enforcement 

no longer appears to be a top departmental priority. An analysis of the data reveals 

that, between 2001 and 2005, the number of federal investigations targeting abusive 

police officers declined by 66 percent and investigations of cross-burners and other 

purveyors of hate declined by 60 percent. 

It appears that this downward trend accelerated after the tragic events of 9/11. 

While there has been a slight increase in enforcement related to human trafficking, 

which is classified under civil rights, not enough has been done to stop the overall 

slide. 

I am very troubled by this trend. Hate-crimes are too dangerous to ignore, and 

there is social value in effective federal review of police misconduct. There has been 

an increase in hate crimes recently, especially with the placement of nooses in public places to instill fear in the hearts and minds of many Americans. 

I am also troubled by the recent ‘‘Jena Six’’ case where six black youths attending 

Jena High School in Jena, Louisiana were arrested and some were initially prosecuted as adults in response to several fights that ensued following white students’ 

hanging a noose on school grounds. Although black students were arrested and 

jailed, no white students were ever arrested in connection with the incidents. As you 

will recall, I worked tirelessly with civil rights activists such as Reverend Jesse 

Jackson and Reverend Al Sharpton to ensure that the Department play its role in 

ensuring that Justice is wrought. I implore the Attorney General to continue to conduct an investigation into this matter and to make the Department’s findings a matter of public record. Since the Jena 6 incident, there have been numerous high profile incidents of noose hangings, including one found in a black Coast Guard’s bag, 

one on a Maryland college campus, and on the office door of a black professor at 

Columbia University in New York, just to name a few. Equally astonishing is the 

fact that there is no federal application of hate crimes law to noose hangings. I am 

anxious to hear the Attorney General’s responses to these serious problems. 

TEXAS JUVENILE AND OTHER CORRECTIONS FACILITIES

Mr. Chairman, another area of concern that I wish to discuss concern the care 

and protection of juvenile offenders in state correctional facilities and the care and 

safety of those being held in custody in county and municipal jails in Texas and 

around the country. 

In my home state of Texas, certain administrators and officials, past and maybe 

current, of the Texas Youth Commission (TYC) have obviously neglected their duties. According to published reports and investigations, several TYC administrators 

abused their authority by pulling young boys out of their dorm rooms and classrooms and sexually molesting them. The allegations of abuse have been a matter 

of public record since 2000. In 2005, an investigation conducted by the Texas Rangers revealed that employees of the juvenile facility in Pyote, Texas, had repeated 

sexual contact with juvenile inmates. 

Additionally, several members of the TYC board, who are responsible for the oversight of TYC facilities, admit that they were aware of the finding in the report prepared by Texas Rangers but took no corrective action. The current scandal surrounding TYC is scandalous and outrageous; quite frankly it sickens me. The situaVerDate Aug 31 2005 13:36 Oct 21, 2008 Jkt 000000 PO 00000 Frm 00088 Fmt 6601 Sfmt 6621 H:\WORK\FULL\020708\40741.000 HJUD1 PsN: 40741
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tion within the TYC disregards every notion of justice and will contribute to the rise 

of recidivism rates if it is not arrested immediately. 

Let me turn to another horrifying area of inmate abuse. Between January 2001 

and January 2006, at least 101 persons, an average of about 17 a year, have died 

while in the custody of the Harris County Jail, located in Houston, Texas. In 2006 

alone there were 22 deaths. I find it especially disturbing that of the 101 deaths, 

at least 72 of the inmates were awaiting court hearings and had yet to be convicted 

of the crimes for which they were taken into custody. 

In our system every accused person is entitled to life, liberty, and the pursuit of 

happiness, and a presumption of innocence. These 72 individuals, however, were deprived of their life without the due process guaranteed by the Constitution. They 

will not ever receive their day in court to be judged by their peers because of the 

irresponsibility, incompetence, indifference, and perhaps the criminal neglect, of the 

jail officials to whose care they were entrusted. 

I believe the situation in the Harris County Jail System requires national attention. When it is alleged that inmates are sleeping on the floor next to toilets and 

denied basic medical care, something must be done. The conditions at these jails 

border on cruel and unusual punishment. Should fault or wrongdoing be found, the 

persons responsible should be held accountable. Seeing that such authorities are 

held accountable is ultimately the responsibility of the United States Department 

of Justice. I am interested to hear the Attorney General’s views on these matters. 

U.S. ATTORNEY FIRINGS

Mr. Chairman, I would also like to discuss the issue of the on-going investigation 

into the U.S. attorney firings in 2006. We have found that it is rare for a United 

States Attorney to prematurely end his or her four-year term of appointment. According to the Congressional Research Service, only 54 United States Attorneys between 1981 and 2006 did not complete their four-year terms. It has now been confirmed that at least eight United States Attorneys were asked to leave the Department in December 2006. 

On March 6, 2007, the Subcommittee on Commercial and Administrative Law 

held a hearing entitled, ‘‘H.R. 580, Restoring Checks and Balances in the Confirmation Process of United States Attorneys.’’ Witnesses at the hearing included six of 

the eight former United States Attorneys and William Moschella, Principal Associate Deputy Attorney General, among other witnesses. 

Six former United States Attorneys testified that he or she was not told in advance why he or she was being asked to resign. Upon further inquiry, however, several of the terminated U.S. attorneys were advised by the then Acting Assistant Attorney General William Mercer that they were terminated essentially to make way 

for other Republicans to enhance their credential and pad their resumes. 

It is now clear that the manifest intention of the proponents of the provision in 

the USA PATRIOT ACT Reauthorization regarding the appointment of interim U.S. 

Attorneys was to allow interim appointees to serve indefinitely and to circumvent 

Senate confirmation. 

We now know that after gaining this increased authority to appoint interim U.S. 

Attorneys indefinitely, the Administration has exploited the provision to fire U.S. 

Attorneys for political reasons. A mass purge of this sort is unprecedented in recent 

history. The Department of Justice and the White House coordinated this purge. 

The purge was conducted based in large part on whether the U.S. Attorney 

‘‘exhibit[ed] loyalty to the President and Attorney General.’’ 

Mr. Chairman, the office of the United States Attorney traditionally operated with 

an unusual level of independence from the Justice Department in a broad range of 

daily activities. The practice that was in place for less than two years needed to end. 

That is why I was proud to have voted for its repeal and the restoration of the status quo ante. Mr. Attorney General, I welcome your views on the investigation into 

the US attorney firings and your views on the Department’s political independence 

from the Administration. 

DESTRUCTION OF CIA INTERROGATION TAPES

Mr. Chairman, I am extremely concerned by the recent revelation that tapes of 

CIA interrogations have been destroyed, and the reports this week that the CIA has 

engaged in the practice of waterboarding. 

There are media reports that at least four top White House lawyers were involved 

in the discussions within the CIA about the destruction of these tapes, which depict 

the interrogation of prisoners by U.S. intelligence agents, raise crucial questions 

about possible criminality, violation of federal laws and international treaties, and 

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nal allegations, as well as our oversight responsibilities, as a Congress, to properly 

investigate this case and to ensure that similar events do not occur in the future. 

In early December, media reports indicated that, in 2005, the CIA destroyed at 

least two videotapes. The tapes in question are known to have documented the interrogation of two senior al-Qaeda operatives in CIA custody. According to reports, 

the tapes showed CIA agents subjecting terrorism suspects to severe interrogation 

techniques, including the controversial practice of waterboarding. After the destruction of the tapes was revealed, CIA director General Michael Hayden stated that 

the decision to destroy them was made ‘‘within the CIA,’’ to protect the safety of 

undercover officers. According to current and former intelligence officials, the decision is ultimately attributable to Jose Rodriguez, Jr., who was head of the Directorate of Operations. 

Mr. Chairman, the 2005 destruction of these tapes came in the midst of Congressional scrutiny of the CIA’s detention and interrogation programs. This raises significant concerns about whether the CIA withheld information from Congress, as 

well as other entities including the federal courts and the September 11th Commission. It has been suggested that the tapes were destroyed in order to eliminate evidence of potentially criminal activity. In light of the controversy, the Department 

of Justice initiated an investigation, and, on December 14th, moved to delay Congressional inquiries into the CIA’s destruction of the tapes, stating that such a parallel investigation would jeopardize the Department’s efforts to investigate the issue. 

Mr. Chairman, the Department of Justice itself, having offered legal advice relating to the destruction of the tapes, could be implicated in this investigation. In addition, at least four top White House lawyers—Alberto Gonzales, David S. Addington, 

John Bellinger III, and Harriet Miers—were involved in discussions regarding the 

tapes in question. The destruction of the tapes has raised concerns about both the 

possibility that the tapes documented unlawful conduct and that their destruction 

was itself unlawful. 

Mr. Chairman, since 9/11, this Administration has consistently questioned the applicability of the Geneva Conventions and the Convention Against Torture to the 

war on al-Qaeda. While I certainly believe in the necessity of protecting the United 

States from potential future terrorist attacks, I firmly believe that these international conventions and agreements are not optional; they can not be applied only 

when it is convenient for the Bush Administration. If the United States is to truly 

be a leader in promoting human rights and the rule of law, it must apply these 

standards to its own policies and practices. 

In the Supreme Court case Hamdan v. Rumsfeld, the Court held that Article 3 

of the Geneva Conventions does apply to the conflict with al-Qaeda, contrary to numerous assertions to the contrary made by the Bush Administration. The United 

States has long-since ratified all four Geneva Conventions, all of which contain Article 3, which prohibits, among other things, ‘‘cruel treatment and torture,’’ ‘‘outrages 

upon personal dignity,’’ and ‘‘humiliating and degrading treatment’’ of prisoners or 

civilians during armed conflict. Either we must apply the same standards to our 

own conduct, or else risk the likelihood that other nations will not adhere to these 

standards when detaining and interrogating our citizens. 

Mr. Chairman, all detainees must be treated in accordance with international law 

as well as the U.S. Constitution, under which we all serve. The United States must 

not make those practices, long the staple of abhorred foreign dictators, part of its 

own interrogation arsenal. While torture is expressly prohibited by international 

and domestic law, the Administration has consistently sought to circumvent such 

restrictions, citing the necessity of the situation and seeking to narrowly define torture. 

In addition to possible illegal conduct portrayed on the tapes, the destruction of 

the tapes has raised separate legal concerns. Title 18, United States Code, Section 

1512 (c)(1) and (2) establishes the illegality of tampering with a record ‘‘with the 

intent to impair the object’s integrity or availability to use in an official proceeding.’’ 

The official proceeding need not be actually pending at the time of the acts of obstruction, though it must be foreseeable. 

Mr. Chairman, I believe it is our responsibility, as the representatives of the 

American people, the guardians of the Constitution, and the bastion of America’s 

civil liberties, to be unwavering in our commitment to preserving the rights of the 

American people and American way of life. I firmly believe that acts of torture represent a grave breach of American values. 

ENFORCEMENT OF U.S. FEDERAL LAWS TO PROTECT U.S. CONTRACTORS IN IRAQ

In December 2007, the Crime Subcommittee held a hearing in December on the 

enforcement of U.S. federal criminal laws to protect U.S. contractors in Iraq. The 

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hearing was held to address the rape of Jamie Leigh Jones by U.S. contractors employed by KBR/Haliburton. The Department sent no witnesses to the hearing because it indicated that it was investigating the matter and has failed to respond to 

several letters issued by the Committee in January. 

Jamie Leigh Jones, from my hometown of Houston, Texas, testified that in July 

2005, she was approximately 20 years old, and was on a contract assignment in Iraq 

for KBR/Haliburton, when her fellow male contractors drugged, imprisoned, and repeatedly gang-raped her. 

The Department has brought no criminal action against the alleged assailants. 

Despite claims to the contrary Title 18, Part I, Chapter 1, Section 7, of the United 

States Code, entitled ‘‘Special maritime and territorial jurisdiction of the United 

States defined,’’ the United States has jurisdiction over the following: ‘‘any place 

outside the jurisdiction of any nation with respect to an offense by or against a national of the United States’’ does allow for the Department to prosecute Ms. Jones’s 

alleged assailants. 

Mr. Chairman, I call for a complete and entirely transparent investigation into the 

recent discovery of the destruction of the CIA tapes, and we must fully investigate 

all incidents of suspected torture by U.S. officials and agents. 

FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA)

Chairman, this year this Committee examined legislation that was intended to fill 

a gap in the Nation’s intelligence gathering capabilities identified by the Director 

of National Intelligence Mike McConnell, by amending the Foreign Intelligence Surveillance Act, FISA. But in reality it eviscerates the Fourth Amendment of the Constitution and represents an unwarranted transfer of power from the courts to the 

Executive Branch and the Attorney General. 

I am aware of the delicate balance that the Department must tread in protecting 

homeland security and in affording Americans their full and unfettered rights under 

the Bill of Rights. The original law protected the civil liberties of all Americans 

while also granting the President the tools needed to conduct an aggressive campaign against terror. FISA does not make American any safer—rather it allows the 

Government to pursue an enormous and untargeted collection of international communications without court order or meaningful oversight by either Congress or the 

courts. As such the recent legislation requesting an extension of FISA is an affront 

to our values and consequently, the bill must be allowed to die rather than be extended for one more day. These revisions of FISA legislation should not be supported for several reasons. 

First, it allows the Attorney General to issue program warrants in international 

calls without court review. This removes the FISA court, which has overseen the 

process for 30 years and instead places the Attorney General in charge of determining the legitimacy of surveillance. 

Secondly, it includes no provisions to prevent ‘‘reverse targeting,’’ the practice 

whereby surveillance is conducted on a foreign person to hear their conversations 

with person in the United States who is the actual target. Under the FISA amendments, these conversations can be heard, recorded and stored without warrant. 

Lastly, the FISA amendment reduces the oversight capabilities of Congress by requiring the Attorney General to provide Congress only the information the Justice 

Department sees fit to report. This removes an important check upon America’s surveillance program. 

Because I recognize that there is a delicate balance between legitimate intelligence needs and the civil rights of American citizens, I was proud to support the 

RESTORE Act, passed by this House in mid-2007. Mr. Chairman the Jackson-Lee 

Amendment added during the markup made a constructive addition to the RESTORE Act by laying down a clear, objective criterion for the Administration to follow and the FISA court to enforce in preventing ‘‘reverse targeting.’’ ‘‘Reverse targeting’’ is the practice where the government targets foreigners without a warrant 

while its actual purpose is to collect information on certain U.S. persons. I introduced the Jackson-Lee Amendment to eliminate the reverse targeting by requiring 

the Administration to obtain a regular, individualized FISA warrant whenever the 

‘‘real’’ target of the surveillance is a person in the United States. It is imperative 

that the rights enshrined in the Bill of Rights be given effect. Mr. Attorney General, 

I welcome your comments on this issue. 

THE 2009 FISCAL YEAR BUDGET

Mr. Chairman, the third and final area I wish to discuss concern the reductions 

in the 2009 fiscal year budget. A review of the Administration’s FY 2009 budget reveals drastic cuts to state and local law enforcement. The Administration has reVerDate Aug 31 2005 13:36 Oct 21, 2008 Jkt 000000 PO 00000 Frm 00091 Fmt 6601 Sfmt 6621 H:\WORK\FULL\020708\40741.000 HJUD1 PsN: 40741
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quested a total of $404 million where Congress last year appropriated over $1.7 billion dollars. This is particularly distressing given that violent crime increased in 

2005 and 2006 for the first time in a decade, which many believe are a consequence 

of similar cuts the President proposed in the past. President Bush’s budget eliminates critical anti-crime and anti-terrorism funding for local law enforcement. The 

Bush budget cuts $137 million from aid to states and localities for bioterrorism preparedness. Additionally, President Bush did not ask for any funding for the Edward 

Byrne Memorial Justice Assistance Grant program, nor for the Clinton-era Community Oriented Policing Services (COPS) program, among others. The Byrne program 

received $175 million in fiscal 2008; COPS received $251 million. These cuts will 

further erode the ability of state and local government to fight crime at a time when 

states are dealing with budget crises. Prevention and control of crime is critical to 

ensuring the strength and vitality of our Nation. 

I am interested to hear the Attorney General’s views on these matters. Again, 

thank you Mr. Chairman for holding this hearing. I yield the remainder of my time. 

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PREPARED STATEMENT OF THE HONORABLE DARRELL ISSA, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA, AND MEMBER, COMMITTEE ON THE JU- DICIARY

Thank you, Mr. Chairman. I appreciate this opportunity to hear from Attorney 

General Michael Mukasey regarding his vision for the Department of Justice and 

the state of the Department which he inherited. 

I frequently took opportunities such as this hearing to question Attorney General 

Mukasey’s predecessors on the need for increased prosecution of human smugglers 

and other criminal aliens. I have encouraged the President, multiple attorney generals, and the U.S. Attorney for the Southern District of California for years to prosecute more ‘‘coyotes’’ and criminal aliens. I have also sought and won appropriations 

specifically for this purpose. 

I am heartened to read in Attorney General Mukasey’s testimony that the Presi- dent’s budget includes $7,000,000 for this purpose, and that these funds will be used 

in part to fund 40 additional U.S. Attorneys in border districts. ‘‘Coyotes’’ and other 

criminal aliens are some of the most dangerous individuals in the United States, 

and it is terribly important to confront them head on. 

I look forward to hearing from Attorney General Mukasey on how the Department 

of Justice will continue down the path of increased criminal alien related prosecutions under his lead, as well as the myriad of other issues within the Department’s 

jurisdiction. 

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PREPARED STATEMENT OF THE HONORABLE STEVE COHEN, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF TENNESSEE, AND MEMBER, COMMITTEE ON THE JU- DICIARY

The last year has brought to light numerous abuses at the Department of Justice 

(DOJ). From the suspicious terminations of nine U.S. Attorneys to evidence of possibly politically motivated prosecutions, the politicization of the hiring process for 

career DOJ attorneys, the sharp decline in civil rights enforcement, and the revelation of the existence of secret legal memoranda justifying the use of torture, the 

DOJ reached a low point in its history and ended 2007 with its reputation for professionalism and integrity tarnished. With a change in the leadership of the DOJ, 

I hoped that these abuses would be properly addressed. 

I am appreciative of Attorney General Michael Mukasey’s stated intention to establish a more cooperative relationship between the DOJ and Congress. I also recognize that he has taken some positive steps towards reducing the risk of 

politicization of federal law enforcement, including instituting guidelines that limit 

contact between DOJ and White House officials concerning ongoing Prepared Statement of the Honorable Steve Cohen, a Representative in Congress from the State 

of Tennessee, and Member, Committee on the Judiciarycivil and criminal investigations. Nonetheless, many questions remain concerning the DOJ’s role in justifying 

the use of harsh interrogation techniques that I believe amount to torture, its continued defense of overweening executive authority, and its level of cooperation with 

ongoing Congressional and internal investigations of its conduct. I call upon Attorney General Mukasey to be forthcoming on these issues. 

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LETTERS DATED FEBRUARY 7, 2008, FROM THE HONORABLE SHEILA JACKSON LEE TO

THE HONORABLE MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE UNITED STATES


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H.R. 4545, ‘‘A BILL TO TARGET COCAINE KINGPINS AND ADDRESS SENTENCING

DISPARITY BETWEEN CRACK AND POWDER COCAINE’’ 


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LETTER DATED JANUARY 31, 2008, FROM THE HONORABLE JOHN CONYERS, JR. TO THE

HONORABLE MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE UNITED STATES


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POST-HEARING QUESTIONS POSED BY THE HONORABLE JOHN CONYERS, JR., THE HONORABLE ROBERT C. ‘‘BOBBY’’ SCOTT, THE HONORABLE LINDA T. SA ́ NCHEZ, THE HONORABLE KEITH ELLISON, AND THE HONORABLE ROBERT GOODLATTE TO THE HONORABLE MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE UNITED STATES


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LETTER DATED JUNE 2, 2008, FROM KEITH B. NELSON, PRINCIPAL DEPUTY ASSISTANT

ATTORNEY GENERAL, OFFICE OF LEGISLATIVE AFFAIRS, U.S. DEPARTMENT OF JUSTICE, PROVIDING DOCUMENTS IN RESPONSE TO POST-HEARING QUESTIONS POSED BY

THE HONORABLE ROBERT C. ‘‘BOBBY’’ SCOTT 1

———— 

Note: Due to its volume, the document production is not printed in the hearing 

record but is on file with the House Committee on the Judiciary 

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ANSWERS TO POST-HEARING QUESTIONS PROVIDED BY THE

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J-28.eps