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52–690 PDF 2008

S. HRG. 110–887 

OVERSIGHT OF THE U.S. DEPARTMENT OF 

JUSTICE 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JULY 9, 2008 

Serial No. J–110–104 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

STEPHANIE A. MIDDLETON, Republican Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement and closing statement .................................................... 157 

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, prepared 

statement .............................................................................................................. 154 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 3 

WITNESSES 

Mukasey, Michael B., Attorney General of the United States ............................. 5 

QUESTIONS AND ANSWERS 

Responses of Michael B. Mukasey to questions submitted by Senators Kennedy, Kohl, Schumer, Durbin, Grassley, Sessions and Coburn ....................... 51 

Additional responses of Michael B. Mukasey to questions submitted by Senators Kennedy, Durbin and Grassley ................................................................. 126 

SUBMISSIONS FOR THE RECORD 

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois, and 

Hon. Sheldon Whitehouse, a U. S. Senator from the State of Rhode Island, 

Letter ..................................................................................................................... 152

Jarrett, H. Marshall, Counsel, Department of Justice, Office of Professional 

Responsibility, Washington, D.C., letter ............................................................ 156 

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

D.C.: 

statement .......................................................................................................... 160 

March 5, 2008, memo ....................................................................................... 196 

March 27, 2008, remarks ................................................................................. 198 

(1) 

OVERSIGHT OF THE U.S. DEPARTMENT OF 

JUSTICE 

WEDNESDAY, JULY 9, 2008 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, Pursuant to notice, at 9:32 a.m., in room 

SD–106, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Biden, Kohl, Feinstein, Feingold, Schumer, Durbin, Cardin, Whitehouse, Specter, Hatch, Grassley, and 

Kyl. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Today we welcome Michael Mukasey back to 

the Committee for his second appearance as Attorney General. The 

Attorney General has been on the job for 8 months since succeeding Alberto Gonzales. He is now more than halfway through 

his term as Attorney General. And as I have told him privately and 

publicly, his tenure is going to be judged by how much he has done 

to restore the Department of Justice, an agency, I believe, whose 

mission and objectives were severely undercut by scandals under 

the Bush administration. The Attorney General will also be judged 

by what the Department has done—and not done—to reaffirm the 

checks and balances that are the fulcrum for our democracy and a 

key to protecting the rights and liberties of all Americans. 

When this Committee began its oversight efforts at the start of 

this Congress, we exposed a crisis of leadership and partisan political influence that had taken a heavy toll on the well-deserved tradition of independence that has long guided the United States Department of Justice. Senators on this Committee from both sides of 

the aisle joined together to press for accountability. What followed 

was a change in leadership at the Department, with the resignations of Attorney General Gonzales, the Deputy Attorney General, 

the Associate Attorney General, their chiefs of staff, the White 

House liaison, and the resignations of Karl Rove, his political deputies, the White House Counsel, and others. 

We have seen what happens when the rule of law plays second 

fiddle to a President’s agenda and the partisan desires of political 

operatives. It becomes a disaster for the American people. Both the 

President and the Nation are best served by a Justice Department 

that provides sound advice and takes responsible action, not one 

that develops legalistic loopholes and ideological litmus tests to 

2 

serve the ends of a particular administration, whether it is a 

Democratic administration or a Republican administration. 

The recent report from the Department’s Inspector General confirms what our oversight efforts have uncovered about the 

politicization of hiring practices at the Department. It confirms our 

findings and our fears that the same Bush Justice Department officials involved in the firing of United States Attorneys were injecting partisanship into the hiring of young attorneys. I expect further 

reports from the Inspector General will shed additional light on the 

extent to which the Bush administration has allowed politics to affect—and infect—the Department’s priorities, from law enforcement to the operation of the Civil Rights Division to the Department’s hiring practices. 

As I have said many times, and I have said this in the six administrations since I have been here, the Department of Justice is 

not the President’s legal defense team any more than the Attorney 

General is his lawyer. The Attorney General is not the White 

House Counsel and should not act as one. The Department of Justice is a law enforcement agency, not a partisan political operation. 

The Attorney General is the Attorney General of the United States, 

not the Attorney General of the President or anything else. He is 

the Attorney General of the United States, all of us. And these are 

the truths that have been overridden in the last 7 years. 

So this hearing is for the Attorney General to show us what he 

has done on each of these fronts. For example, what he has done 

to restore the independence of the Department of Justice? What 

has he done to push back against the overreaching from the BushCheney White House, including its claims to unfettered power at 

the expense of the principles of judicial review and congressional 

oversight? 

On issue after issue, from the warrantless wiretapping of American citizens, to the descent into torture thinly veiled by the use of 

the Orwellian-term ‘‘enhanced interrogation techniques′′; from undercutting laws meant to protect clean air and clean water to the 

untoward political influence of the White House at the Nation’s top 

law enforcement agency; from the destruction of CIA tapes showing 

detainee interrogations to grandiose claims of immunity and executive privilege from congressional oversight—it makes the Watergate era look like child’s play. 

The conservative Supreme Court’s recent decision in Boumediene 

v. Bush reaffirmed our core American values as a stinging rebuke 

to the Bush administration’s excesses. They said, ‘‘Security subsists, too, in fidelity to freedom’s first principles. Chief among those 

are freedom from arbitrary and unlawful restraint...’’ 

These principles of checks and balances and of the rule of law 

are what this administration and a previously complicit Justice Department have ignored—that our fundamental adherence to our 

Constitution and the rule of law is a strength. And no one—not 

even the President—is above the law. The Justice Department 

owes loyalty to the law. 

The Attorney General repeatedly assured us during his confirmation hearing that he would take a fresh look at the secret memos. 

He committed to this Committee that he would review them. These 

are the secret legal memoranda that sought to define torture down 

3 

to meaninglessness and excuse warrantless spying and justify absolute immunity of White House employees from congressional subpoenas without reference to a single legal precedent. The Attorney 

General committed to this Committee to review them and withdraw or modify those that were unjustified or unwise. Even Attorney General Gonzales did that. He withdrew the August 2001 

Bybee memo justifying torture when it came to light, coincidentally 

just before his confirmation hearing in 2005. 

So we look forward finally to obtaining these memos—to obtaining even the index of these memoranda—that we have been denied 

for years. Today we look forward to learning which aspects of what 

memos that have formed the legal framework for the Bush administration’s policies have been modified or withdrawn by the Attorney General. 

This Committee has a special stewardship role to protect our 

most cherished rights and liberties as Americans, and to make sure 

that our fundamental freedoms are preserved for future generations. I believe the path taken during the last 7–1/2 years has been 

one that has disregarded basic rights and turned us from a Nation 

devoted to the rule of law to one ruled by secret pronouncements 

of the executive. 

I will put my full statement in the record and yield to Senator 

Specter. 

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

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

SENATOR FROM THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you, Mr. Chairman. 

I join the Chairman in welcoming you here, Attorney General 

Mukasey, and in noting the significant improvements in the Department of Justice since you have taken over. We are considering 

of the Senate floor today the Foreign Intelligence Surveillance Act, 

and it is an opportunity for Congress to finally assert some authority and try to move for separation of powers to try to check the unparalleled expansion of executive authority, which we have noticed 

since 9/11. I believe that historians will look back at this period as 

the greatest expansion of executive authority that has gone unchecked by Congress and significantly unchecked by the courts. 

We have had a challenge to the constitutionality of the Foreign 

Intelligence Surveillance Act. A Detroit Federal court held it unconstitutional. The Sixth Circuit reversed on standing grounds in 

a 2–1 decision, and the Supreme Court in effect ducked the case, 

denied certiorari, when there were ample grounds to take it up, as 

noted in the very persuasive dissenting opinion on standing. And 

now the Congress is being asked to strip the Federal courts of some 

40 cases which are pending for determination of the constitutional 

rights of people who have been allegedly wiretapped by the telephone companies without court order. 

As I have argued on the floor—and I have an amendment pending—it is especially unfortunate because we could keep both the 

surveillance program and have judicial review if we substituted the 

Government as a party defendant. But the Attorney General has 

4 

a significant role to play in this overall issue in terms of advice to 

the President. 

I was very much impressed when you said in your confirmation 

hearing that if the President did not follow your advice on constitutional issues, the matter of resignation would be foremost in your 

mind. The President violated the National Security Act of 1947 in 

not notifying the Intelligence Committees of the Terrorist Surveillance Program, a firm statutory duty. He could have used some 

good advice on that point. He did not notify the Chairman or Ranking Member of the Judiciary Committee, longstanding protocol. I 

was Chairman at the time in arguing for the PATRIOT Act on a 

Friday in mid-June of 2005 when the New York Times story dominated all of the substantive arguments, and we could not get the 

Act passed. Senators said that had they known about this Terrorist 

Surveillance Program, they would not have been for the bill. So 

there are very important issues on separation of powers. 

There are a number of matters that I will be discussing with you 

during the question-and-answer session, as I told you in our telephone conversation earlier this week. The matter of the attorneyclient privilege is very, very significant. I have a bill pending which 

would change what the Department of Justice is doing because of 

two very fundamental constitutional privileges: one is the attorneyclient privilege, which necessarily involves confidentiality; and the 

second is the burden of the Commonwealth or the State to prove 

its case. 

When I was a prosecutor, I would not have thought of asking 

someone to waive their privilege, and yet that is being done here. 

And it may be in the corporation’s interest to waive the privilege 

to have a reduction in charges or a reduction on sentencing. But 

there are individuals who have that privilege within the corporation who ought not to be coerced into waiving the privilege. 

And let me say to you candidly, Mr. Attorney General, that the 

discussions have gone on too long—the Thompson memo, the 

McNulty memo, now the Deputy Attorney General is preparing a 

new memo. I talked to him 2 weeks ago. It is vague as to when 

it is to be completed, and I hope that the Chairman will bring this 

matter before the Committee so we can move ahead on the legislative channel. 

Similarly, we need to bring the discussions to a head on reporter’s privilege. We find that there is a decisive chilling effect on 

newspaper reporters across the country for what happened with 

Judith Miller and what is happening with other reporters—still an 

enigma to me as to why she spent 85 days in jail. It was not a very 

pleasant stay she had there. I know because I visited her in December of 2005. Why was she held in contempt when we knew that 

Deputy Secretary of State Armitage was the source of the leaks? 

That still has not been answered. 

But rather than looking backward, I think we need to look forward and see to it that there is an appropriate balance. And the 

legislation has national security exceptions, and if there are other 

matters which need to be resolved, let’s sit down and try to get 

them worked out because in our society we do not have to talk 

about the importance of the media. Jefferson’s statement still rings 

true. If he had to choose between Government without newspapers 

5 

or newspapers without Government, he would choose the newspapers. It may be a close call these days, but I feel the newspapers 

are still in the lead considering what is happening with the expansion of executive authority. 

One final point, and that is on a matter that I raised with the 

Director of the Federal Bureau of Investigation about a leak in the 

case involving Congressman Curt Weldon, which occurred a few 

days before the 2006 election, which was the direct defeat of a very 

distinguished Congressman who had held office for some 20 years. 

They had a search and seizure on his daughter’s home, and there 

was a leak. Newspaper reporters were there in advance. And I 

asked Director Mueller about that back in December of 2006, and 

I did not get an answer, and it was buried in the FBI’s written responses to written questions. Well, there is a difference when there 

is a question posed in a hearing by a Senator than when its staff 

work in written questions. 

And then at another hearing, I raised it on March 5th of 2008, 

and I heard nothing more until I got a reply from a subordinate 

on June 13th of this year that it had been punted over to the Department of Justice. And I wrote a pretty hot letter to Director 

Mueller, which I ask unanimous consent be included in the record. 

Chairman LEAHY. Without objection. 

Senator SPECTER. And the ball is now in your court, Mr. Attorney General. But leaks are intolerable. When leaks are made, they 

frequently involve national security, and those leaks are investigated and the culprits are found. And if the leak was in the FBI, 

the investigation ought to be just as intense. And this Committee 

expects a briefing, and this Committee expects action. And Congressman Weldon does not have any rights any higher than anybody else, but his rights are no lower than anybody else’s. And we 

are entitled to an answer. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Mr. Attorney General, please stand and raise your right hand 

and repeat after me. Do you solemnly swear the testimony you will 

give in this matter will be the truth, the whole truth, and nothing 

but the truth, so help you God? 

Attorney General MUKASEY. I so swear. 

Chairman LEAHY. Thank you. Please go ahead, sir, and, again, 

we welcome you from both sides of the aisle. We are glad you are 

here. 

STATEMENT OF HON. MICHAEL B. MUKASEY, ATTORNEY 

GENERAL OF THE UNITED STATES 

Attorney General MUKASEY. Good morning, Chairman Leahy, 

Senator Specter, and members of the Committee. Thank you for 

the opportunity to testify today. 

Since I appeared before the Committee six months ago, I have 

become even better acquainted with the talented and dedicated 

professionals at the Justice Department and with the work that 

they do. And I have come to appreciate that much more deeply 

their service to the Nation. 

I have now been Attorney General, as you pointed out, for eight 

months and there are slightly less than seven months remaining 

6 

in this Administration. I would like to outline briefly two areas 

that I intend to focus on during that time. 

First, as everyone knows, the election season is upon us. Although State and local governments have primary responsibility for 

administering elections, the Department must make every effort to 

help assure that those elections run as smoothly as possible and, 

equally important, that the American people have confidence in the 

electoral process. The Department will maintain a significant presence throughout the election season through both outreach and 

monitoring. We are going to work closely with civil rights groups 

and State and local elections officials to identify and to solve problems. We are going to publicize telephone numbers and websites 

through which people can bring potential issues to our attention. 

And on Election Day, we are going to deploy hundreds of observers 

and monitors around the country. 

Those steps will supplement our ongoing enforcement efforts. 

Using the Voting Rights Act and other laws, as the Department 

has done and will continue to do, it will do its part to guarantee 

access of all Americans to the ballot. 

The Department will also continue its efforts to safeguard the integrity of elections by combating campaign finance abuse and voter 

fraud. All of these efforts are essential in ensuring that the elections reflect the will of the people and in maintaining the confidence of all Americans in our system of Government. In all of 

this, we will be driven by what the law and the facts require, and 

only by that. 

Earlier this year, I issued a memorandum to remind all Justice 

Department employees of policies regarding election year sensitivities. The message of that memorandum, which I reiterated in a 

speech to our lawyers and agents involved in election cases last 

week, was simple: Politics must play no role in our efforts. 

Second, once the November elections are over, there will be the 

vitally important task of making an orderly and safe transition to 

a new Administration. As part of that transition, we will take every 

step to transfer smoothly custody and responsibility for our Nation’s security to a new set of caretakers. We must ensure that all 

of our country’s security measures are attuned to the increased risk 

we face during this time of transition and that we respond and adjust appropriately. 

It is also important that we do everything we can to give our national security professionals who will be confronting the al Qaeda 

threat well after this Administration is over the tools they need to 

help keep us safe, and it is my sincere hope that the Senate will 

take a vital step today by passing the bipartisan FISA compromise 

that passed the House by a wide margin before the 4th of July recess. 

I am also working closely with the Director of the FBI to continue the transformation of the Bureau into a world-class intelligence agency. That goal involves developing new ways to recruit, 

train, and provide career paths for those who wish to devote their 

careers in the Bureau to intelligence collection and analysis. I am 

also reviewing the guidelines governing the FBI’s conduct of criminal and national security investigations with the objective of harmonizing them in a way that gives the Bureau’s professionals clear 

7 

and consistent rules for conducting investigations while maintaining vital civil liberties protections. 

Before I end, let me briefly address a topic that several of you 

raised with me in advance of this hearing, namely, allegations that 

have been made about the politicization of the Justice Department. 

I take those allegations with utmost seriousness. As I have said 

many times to members of the public and to Department employees, it is crucial that we pursue our cases based solely on what the 

law and the facts require and that we hire career people without 

regard to improper political considerations. It is equally crucial 

that the American people have complete confidence in the propriety 

of what we do. My promise to you is that I have done and I will 

continue to do what I can to ensure that politics is kept out of decisions about cases and out of decisions about career hiring at the 

Department of Justice. 

Mr. Chairman and members of the Committee, I look forward to 

your questions, and, again, I thank you for allowing me to make 

this opening statement. 

[The prepared statement of Attorney General Mukasey appears 

as a submission for the record.] 

Chairman LEAHY. Thank you, Mr. Attorney General. 

Among the most disturbing aspects of these last 8 years has been 

the Justice Department’s role in enabling some of the worst of the 

Bush administration’s executive power overreaching. They have enabled it by using secret memos from the Department’s Office of 

Legal Counsel, the so-called OLC. 

Now, in my years here in the Senate, we have always seen the 

OLC as a place to provide impartial, independent interpretations 

of the law that bind the executive that affect people’s lives. So 

along the lines of when I was a young law student and along with 

others being recruited by the then Attorney General Robert Kennedy, who told us all very intently that nobody, not even the President, could interfere with the independent analysis of the law done 

by the Department of Justice. 

But often in recent years, we have seen issued from defining torture down to meaninglessness or excusing warrantless wiretapping 

to absolute immunity of White House employees, all these legalistic 

loopholes that come from OLC. A few that we have seen are disturbing in their disregard of the rule of law. They basically say 

that the President stands above the law. 

Now, at your confirmation hearing, you committed to this Committee, to a number of us, in answering questions from Senator 

Kohl, Senator Schumer, Senator Durbin, and me, that you would 

review these OLC opinions and you would withdraw those you considered without legal justification. You said you would do a review 

on warrantless wiretapping, interrogation policies, executive privilege. You said this without any reservation or limitation. And we 

thought that you were going to step forward and do just that. 

But in your answers to my written questions—and these were 

answers we got 6 months after the hearing, and only as this hearing was schedule—you said that you have only reviewed opinions 

regarding currently authorized CIA interrogation programs. You do 

not find it necessary to review any others. That appears that you 

have gone back on the commitment you made to this Committee to 

8 

conduct a review of all these OLC opinions. Why have you done 

that? 

Attorney General MUKASEY. Respectfully, I don’t think I went 

back on my word. I think I went back—I think what I said I would 

do was to review OLC opinions that related to then current interrogation programs. I did, and I came back and said that those programs were in line with the law as I saw it, as it was explained 

in those OLC memos, and I stand by that. 

I have since reviewed all significant OLC memos that were 

issued subsequently with a view toward assuring that they are consistent with the law. This Committee—I am sorry. 

Chairman LEAHY. No, no. Go ahead. 

Attorney General MUKASEY. This Committee has received, I 

think, unprecedented review of OLC memoranda relating to both 

interrogation and electronic surveillance. It has received an opportunity to review the entirety, as I understand it, of the OLC memoranda with regard to electronic surveillance. And it has also received—in redacted form, to be sure—OLC memoranda relating to 

interrogation techniques, at the same time that the Intelligence 

Committees of both Houses have received unredacted copies of 

those memoranda. 

Chairman LEAHY. Well, I beg to differ with you a little bit on 

that, because when we asked the questions—and Senator Kohl and 

Senator Schumer and others can speak for themselves. But when 

we asked the questions, it was not with the limitation of just current ones. We were asking what led us to this, because for 7 years 

OLC opinions were allowing wiretapping, which has now been 

found not to be legal, allowing torture, which was found not to be 

allowed. All of these things, and it is not just the current ones, because these other OLC opinions are still there. There are a lot of 

OLC opinions that guide everyday activities of the administration, 

that will guide not only this administration but the next administration. To the effect that they have been referenced by the administration, they speak of an overreaching power of the President, 

something I am not willing to give to any President, Democratic or 

Republican. 

So just simply reviewing the current ones I do not think is 

enough. Can you make then—if you are not going to review those 

that were used in the past, such as those on waterboarding, will 

you make them available to this Committee so that we can make 

our own review as to their legal basis? 

Attorney General MUKASEY. I think that OLC opinions relating 

to wiretapping, to the extent that they may speak to a program 

that has already been brought within the Protect America Act, 

don’t have a current bearing. I can’t make a commitment simply 

to open the drawers of OLC and expose them to this Committee, 

nor do I think it would be responsible for me to do that. One of 

the things— 

Chairman LEAHY. Mr. Attorney General, my point is it is the— 

I am not talking about operational things, and Senator Specter and 

I have been briefed on the operational aspects. We are not going 

to go into that here. What I am talking about are the opinions and 

the legal reasoning that basically said the President could ignore 

laws, could step above the law, or had some inherent authority not 

9 

to follow the law. And the operational parts will change, of course, 

and I expect the operational things will be—as we have been 

briefed, are going on now. 

What I am concerned about are those parts of the memoranda 

that there is this inherent ability of a President not to obey the 

law. Would you give us at least a listing of the OLC memoranda 

that you have decided not to review and a list of the OLC memoranda and opinions that remain in force? 

Attorney General MUKASEY. I think I have an obligation to assure that decisionmakers continue to come forward and ask for advice without fear that if they come forward and ask for advice, all 

of their requests are going to become the subject of examination 

later on, just as I have an obligation to make sure that the people 

who give the advice can give it candidly. For me to give an index 

of all OLC opinions, regardless of whether I have reviewed them 

or not, I don’t know would serve anybody’s interest. 

As I said, I have reviewed all— 

Chairman LEAHY. So your answer is no. 

Attorney General MUKASEY. My answer is qualified. 

Chairman LEAHY. When the qualification is no, that is an answer. My time is up. I am going to try to keep to the time, and 

I will come back to the subject. 

Senator Specter. 

Senator SPECTER. Thank you, Mr. Chairman. 

Attorney General Mukasey, the National Security Act of 1947 

mandates that the President inform the Intelligence Committees of 

both Houses on a program like the Terrorist Surveillance Program. 

The President did not follow that law for years, then finally, piecemeal, told some of the Intelligence Committee members and then 

others when he needed confirmation of General Hayden as Director 

of the CIA. 

Did the President’s powers as Commander in Chief under Article 

II justify his violating the National Security Act in not appropriately informing the Intelligence Committees? 

Attorney General MUKASEY. Senator, the Terrorist Surveillance 

Program, as you know, was brought under the Protect America Act. 

It is now—the President has said he has all the authority that he 

needs. And— 

Senator SPECTER. Well, I am not talking about now. I am talking 

about what happened after 9/11 when the President disregarded 

the statute. 

Attorney General MUKASEY. I think what happened after 9/11 

was a matter of debate between the branches. The President took 

the view that Congress could not, by statute, limit the inherent authority of Article II. This Committee— 

Senator SPECTER. So the President was right in not notifying the 

Intelligence Committees? 

Attorney General MUKASEY. I am not a court. What I am qualified to— 

Senator SPECTER. Now, wait a minute. You are not a court. I 

know that. You are the Attorney General. You give opinions on 

constitutional law. You are the man who sat there and said if he 

‘‘didn’t follow my advice, I wouldn’t serve him.’’ 

10 

Attorney General MUKASEY. My advice did not pertain to matters 

that preceded my arrival. After my arrival, the Terrorist Surveillance Program was brought within the Protect America Act. We are 

trying to get FISA passed today. What we are trying to do is give 

the intelligence-gathering authorities what they need in order to 

gather intelligence and at the same time give necessary— 

Senator SPECTER. Attorney General Mukasey, rather than fence 

for several minutes, with very limited time, would you give some 

study to the issue and give us a considered response on whether 

the President’s authority extended that far? 

Let me move on to the question of the attorney-client privilege. 

Where you have the constitutional right to counsel, which we all 

agree involves confidentiality, and where you have a clear-cut, historic obligation of the Government to prove its case, what is the 

justification for coercing a waiver of the attorney-client privilege? 

That is what happens in real life. In the KMG case where the Federal court in the Southern District of New York has found excesses 

by the Government, where you have a clear-cut conflict of interest 

between the corporation which is being asked for a waiver and the 

individual employee who may have contractual rights to counsel, 

what is the justification? Can you parse it, as the Thompson memo 

does and the McNulty memo, that if it is a fact question, it is decided by the Assistant Attorney General; if it is an opinion or judgment question, it is decided by the Deputy Attorney General? Isn’t 

the attorney-client privilege so valuable that we should not tamper 

with it by what has worked out to be coercive waivers of the privilege? 

Attorney General MUKASEY. Well, I think we share the belief as 

former prosecutors and me as a former judge that the attorney-client privilege is vital to clients getting advice from their lawyers. I 

think also we share the view that it should not be tampered with 

or coerced out of existence. And I understand that you visited with 

the Deputy Attorney General and that he is going to be sending 

you a letter that will include real significant proposed changes. 

Senator SPECTER. How soon? 

Attorney General MUKASEY. Within a day or so. 

Senator SPECTER. Will we have a memo that we can work from 

to get your position? Because I know— 

Attorney General MUKASEY. Yes. 

Senator SPECTER. Your public statement was that you are satisfied with the McNulty memo. Are you satisfied with the McNulty 

memo? 

Attorney General MUKASEY. I think my public statement was 

that the McNulty memo could be used in a proper way. There is 

no such thing as a memo that achieves perfection. And there are 

adjustments in the McNulty memo that can and will be made, and 

the Deputy proposes to make them. In particular, we will no longer 

measure cooperation by waiver of the attorney-client privilege. 

Senator SPECTER. Well, are we going to get more than a letter? 

Are we going to get a memo that we can work from to try to see 

if we could resolve this on a compromise and accommodation? Or 

are we going to have to move forward to legislate? 

11 

Attorney General MUKASEY. I think what is going to happen is 

a letter that is going to be used, that can be used to prepare a 

memorandum, that can— 

Senator SPECTER. Well, when will we get the memorandum? 

Attorney General MUKASEY. You will get the letter within a couple of days. The letter can be the subject of discussions that may 

very well produce a memorandum in short order. 

Senator SPECTER. Well, the shorter the order, the better, because 

it is a matter percolating and affecting a lot of people. 

Attorney General MUKASEY. It does, and I do not minimize it. I 

think that we have tried to strike the balance with the McNulty 

memo. If we haven’t and there are ways to improve it, then we are 

bound and determined to improve it. And I think that letter will 

show that we are. 

Senator SPECTER. Moving to reporter’s privilege in the limited 

time left, Attorney General Mukasey, what was the justification for 

keeping reporter Judith Stern in jail for 85 days when the source 

of the leak was known to be Deputy Attorney General Richard 

Armitage? 

Attorney General MUKASEY. Well, as you know, I was not on 

duty when that case came to the fore, and it is my own view that 

that case may very well be a better argument against a Special 

Counsel than it is in favor of legislation of the sort that has been 

proposed. 

I think that— 

Senator SPECTER. Well, I am not prepared to deal with the Special Counsel because he is not here. If I had Senator Leahy’s gavel, 

I would have brought him in here a while ago, once the case was 

finished. But it is very germane in evaluating public policy on 

whether the Department of Justice ought to have the authority to 

issue a subpoena in the context and move for a contempt citation 

and hold a reporter in jail for 85 days under very unpleasant circumstances. I can attest to that firsthand. I went to visit her. 

Attorney General MUKASEY. There is no such thing as jail under 

pleasant circumstances. It is an inherent contradiction. And it is 

something that, therefore, we use as a last resort and will continue 

to use as a last resort. 

Senator SPECTER. Well, why do you need a resort when you know 

the leak? When you know who the leaker is, why go after a reporter and keep her in jail? 

Attorney General MUKASEY. As I said, that was not— 

Senator SPECTER. I know that would be better addressed to the 

Special Counsel. 

Attorney General MUKASEY. It would. 

Senator SPECTER. Someday we may have an opportunity to do 

that, but right now you are all we have got, Attorney General 

Mukasey, and you are the guy who is pushing the policy. So I think 

it is a fair question to say to you, Why maintain a policy which 

gives whoever the prosecutor is the power to do that when you 

know who the leaker is? 

Attorney General MUKASEY. We do not give that power to a prosecutor for precisely that reason. We require a clearance up through 

and including the Attorney General of the United States. 

12 

Senator SPECTER. The Attorney General of the United States is 

a prosecutor. 

My time is up and I will desist. We will revisit these issues, 

doubtless. I just want to say I have to excuse myself. We have the 

Foreign Intelligence Surveillance Act on the floor, and I have an 

amendment pending. So I am going to have to excuse myself. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, and I will be coming over to speak 

on the amendment, too. I am going to yield next to Senator Biden. 

At one point I will be stepping out, too, but we will keep the hearing going when I go out. 

Senator Biden. 

Senator BIDEN. General, I saw your shoulders sag when the Senator said he had to leave. I am sure it disappoints you. He has to 

go to the floor. 

[Laughter.] 

Attorney General MUKASEY. It does. 

Senator BIDEN. Well, let me tell you, I think he is the best questioner here. I would like him to have an hour with you. I think we 

would learn a lot. I would like to ask a few questions. I will try 

to be as crisp as I can. If your answers could be as crisp as they 

are fair, I would appreciate it. 

You indicated that you have worked to see to it that the Department is not politicized any longer—you did not say ‘‘any longer’’— 

that it is not politicized. I have one simple question. Did you find 

it had been politicized when you arrived? You do not have to give 

me an explanation. Just yes or no. 

Attorney General MUKASEY. Did I find it? 

Senator BIDEN. Yes, did you. You said you came in, took a look— 

Attorney General MUKASEY. The IG found it. 

Senator BIDEN. Yes, but what did you think? It is amazing. You 

act like you float above up in the ether somewhere. 

Attorney General MUKASEY. I don’t float above the ether. 

Senator BIDEN. Well, what did you find? 

Attorney General MUKASEY. What I found— 

Senator BIDEN. What did you, the Attorney General, find? 

Attorney General MUKASEY. What I found were enormously dedicated people who were very committed to my succeeding. 

Senator BIDEN. That is not my question. Did you find that some 

of those enormously dedicated people engaged in politicizing the 

administration of justice? 

Attorney General MUKASEY. No. 

Senator BIDEN. That was my question. 

Attorney General MUKASEY. No. Otherwise, I would not characterize them as ‘‘enormously dedicated.’’ 

Senator BIDEN. Well, that is amazing. So you disagree with the 

IG report? 

Attorney General MUKASEY. I do not disagree with the IG report. 

The IG report criticized a number of people, two of whom are no 

longer there, two of whom are there having endured criticism. 

Senator BIDEN. But did you think the criticism was justified? 

Attorney General MUKASEY. Yes. 

Senator BIDEN. You know, you belong in the State Department, 

man. We could use you up in, you know, the Foreign Relations 

13 

Committee. You sound like a State Department guy. You would 

make a heck of a diplomat, because I—so you would—and the answer is you did find that it had been politicized and that you, in 

fact, have changed that? 

Attorney General MUKASEY. No. I found that the IG report reflected that two people currently employed by the Department, one 

of whom is no longer in the job that he was in, had failed to respond with sufficient alacrity to charges of politicization. That is 

very different from saying that I found a politicized Department. 

Senator BIDEN. I did not say politicized. I said had there been— 

at any rate, I am just trying to get a sense of how you think. I 

mean, you really are an enigma to me, and I do not mean that as 

a compliment or an insult. I just find it very difficult to understand 

you. And like I said, I am used to talking to a lot of diplomats. You 

know, they are really hard to understand. 

Well, let me get right to it. Are you supportive of restoring the 

Byrne grants and the JAG grants and the cuts that have occurred 

to local law enforcement? Or do you think they are unnecessary 

programs? 

Attorney General MUKASEY. I don’t think that any program that 

achieves results is unnecessary. What I do favor is, particularly in 

the budgetary times that we are in, focusing our energies and our 

assets where they can do the most good, and that is what we have 

tried to do. 

Senator BIDEN. And you think the Byrne grants are not at the 

top of that list? 

Attorney General MUKASEY. There are Byrne grants. There are 

other grants. Putting one thing at the top of the list as opposed to 

another is not generally my way. 

Senator BIDEN. Well, that is a requirement. It is called 

prioritization. That is what Attorney Generals do. 

Attorney General MUKASEY. Prioritization is in terms of results. 

Senator BIDEN. Well, let me ask you then: Do you think Byrne 

grants do not product the results? 

Attorney General MUKASEY. I think that what produces results 

are task force programs that we have had in place to lower gang 

and gun crime, of which grants to State and local agencies are a 

part. Our own— 

Senator BIDEN. But they are not Byrne grants, and you have 

eliminated the Violent Crime Task Forces—necessarily, I would 

argue. The FBI is overstretched. The FBI had to reallocate a significant portion, roughly 10 percent, maybe a little more, of its entire personnel to deal with security issues. The administration did 

not replace those agents. I have been pushing to add 1,000 FBI 

agents, total number, because of the necessary requirement that 

they be taken off State and local cooperation in these task forces, 

and there has been resistance to that. Also, then you come along— 

not you personally, but the administration comes along and cuts 

programs that have been universally viewed through administrations Democratic and Republican as vital to helping local law enforcement, particularly the Byrne grants and the JAG grants. You 

have eliminated those. 

Here is my question: Is it based upon the lack of efficacy, or is 

it based upon what if—my friend and I from Arizona once had a 

14 

discussion about the COPS program. He is one of the smartest 

guys I know in the Senate, and he like many argued—and I mean 

this sincerely—that it is not the role of the Federal Government to 

assist local law enforcement, that it is about devolution of power, 

that local law enforcement is local, and there is a philosophic objection to the Biden—to the crime bill that says that we are going to 

provide billions of dollars to local law enforcement because it is essentially a local responsibility and we should not do it. 

So is the objection that they are not efficacious? Or is the objection they are not high enough a priority? Or is the objection philosophical? 

Attorney General MUKASEY. The objection—there is no philosophical objection to helping local law enforcement because local 

law enforcement is part of solving the same problem we solve. 

Senator BIDEN. But you understand there is a giant debate in 

this town, in this country about that issue, so I am glad to hear 

you do not think it is philosophical. A lot of people do. 

Attorney General MUKASEY. Not for me. 

Senator BIDEN. Good. Okay. 

Attorney General MUKASEY. Not for me. We have $200 million 

for the fiscal year 2009 budget in violent crime reduction—violent 

crime reduction partnership. We have $200 million in Byrne 

grants. We have $2 million in child safety and juvenile justice and 

$200 million in violence against women programs. Those are going 

to be allocated in the most effective way that we can through what 

might be termed a ‘‘competition system,’’ but the competition is 

going to be based not simply on people’s ability to write grant applications but, rather, on their ability to use those funds in conjunction with our own efforts to have an effect. 

Senator BIDEN. Well, I was under the impression, because I have 

followed this longer than you have, or anyone here, and I have 

found them to be very efficacious. I have never heard anybody 

argue that they are being allocated not based on results, they are 

being allocated based on some system that needs to be fixed. 

But my time is almost up. Maybe we will get a chance to come 

back to this. 

The Senator from Illinois and I have slightly different bills, but 

we both have been very concerned about this notion of fugitives. 

There are between 800,000 and 1.6 million outstanding felony warrants out there out of 1.9 to 2.7 million State felony warrants that 

are not in the FBI’s national data base. And in addition to that, 

States, as you know, your Justice Department is reporting to you, 

have refused to extradite fugitives across State lines because they 

do not have the money. And so slightly different approaches, but 

the Senator and I each have separate bills coming along saying 

that we want to provide additional moneys for the U.S. Marshals 

Service and moneys for the State and local agencies to be able to 

pick up these fugitives. I mean, I will not—I do not have the time, 

and there is no need to go through the detail, but the bottom line 

is there are rapists who are not being sent back across State lines 

because they do not have the money, people are being let go, et 

cetera. 

15 

Do you subscribe to the notion that this is something that, if we 

can come up with the dollars, this is something that the U.S. Marshals Service needs additional resources to be able to assist in? 

Attorney General MUKASEY. I think that additional resources— 

that resources are needed to help update the database that allows 

warrants to be put into the database to be used for round-ups. I 

think the Marshals Service has conducted sweeps that have resulted in the pick-up of enormous numbers of fugitives, and I favor 

anything that can help them. 

Senator BIDEN. Well, great, because I—I realize my time is up, 

Mr. Chairman. The U.S. Marshals Service indicates to us that they 

are really strapped. They just do not have enough personnel. But 

I will come back to that. I thank you for your time. 

Thank you, Mr. Chairman. 

Chairman LEAHY. We will come back. Thank you. 

Senator Hatch. 

Senator HATCH. Well, thank you, Mr. Chairman. Welcome, General. We appreciate having you here before the Committee. 

Your prepared statement noted that some of the positions in your 

leadership team have been filled, and I am one sure glad for that. 

It is hard to run the Department if you cannot get people to serve 

with you in the Department. And you and the Department need a 

complete leadership team, and that need does not change according 

to the election cycles or the political calendar. 

Some of my colleagues on the other side once insisted not only 

that the Department needs new leadership, but it needs Senateconfirmed leadership. However, some important positions still remain vacant, and in my judgment, there is really no excuse for 

that, and I want to highlight one of them. Grace Becker was nominated last November to head the Civil Rights Division, and this 

Committee held a hearing 4 months ago. Then she was given hundreds of written questions. In my opinion, I think she was treated 

outrageously for someone who served right here on the Judiciary 

Committee itself and everybody knows is a decent, honorable, good 

person. 

Now, this is a nominee we all know well, someone we all know 

to be a person of integrity, diligence, intelligence, and compassion. 

And I know that she is today heading the Civil Rights Division in 

an acting capacity, but she should have been confirmed unanimously a long time ago. And I just wanted to get that on the 

record. 

Now, General Mukasey, let me start my— 

Chairman LEAHY. If the Senator would yield on my time, we are 

still waiting for her to answer her followup questions, and— 

Senator HATCH. Well, we will encourage her to get those in, and 

I hope that you will call her up and give her the— 

Chairman LEAHY. It would help if she would answer the questions. 

Senator HATCH. Well, I think asking 200 questions the way they 

did is not exactly kosher, either. But they have a right to do it, and 

I will acknowledge that. 

General Mukasey, let me start my questions by following up on 

a topic I raised at your confirmation hearing last October. At that 

time, I described the concern of many that in enforcing the obscenVerDate Nov 24 2008 14:38 Oct 19, 2009 Jkt 052690 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\52690.TXT SJUD1 PsN: CMORC
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ity laws, the Justice Department is targeting too narrow a range 

of obscene material. The most extreme material may make a conviction more likely, but that conviction has little impact on the 

overall obscenity industry. And as I said then, I believe that the 

strategy is misguided. 

Now, you agreed personally to review and consider changing this 

strategy. I hope you have had an opportunity to conduct that review and that you will share your conclusions with the Committee, 

if you can. 

Attorney General MUKASEY. I think what we try to do is to bring 

those cases that we can win and those cases that are going to have 

the greatest impact on removing obscene materials which degrade 

our society and depict behavior that we think is disgraceful. We 

have done that. We have had a recent conviction in Tampa of a 

large-scale producer of this kind of material. We want to do it in 

a targeted efficient way, and we want to do it in a way that will 

have the most effect. 

What we don’t want to do is—as you know, there is a tolerance 

for this in the courts. We don’t want to bring prosecutions that will 

have the effect essentially of making more tolerated the kind of 

material that we think ought to be stamped out. So we pick our 

targets carefully. We pick them so as to have the greatest effect. 

And we bring vigorous prosecutions. 

Senator HATCH. I appreciate that. 

Attorney General MUKASEY. The Child Exploitation and Obscenity Section is involved in that, and the Criminal Division is involved in that. 

Senator HATCH. Okay. The Department’s Inspector General recently issued a report looking at hiring practices in the Department’s honors and summer law intern programs, and one thing 

that stands out in that report is that Peter Keisler strongly objected to even the appearance that politics might enter into hiring 

decisions. Now, I highlight this because Mr. Keisler has been waiting for more than 2 years for this Committee to act on his nomination to the U.S. Court of Appeals for the D.C. Circuit, and by anybody’s measure, he is a highly qualified person for that job. Even 

the New York Times and Washington Post praise him and endorse 

his nomination. 

Now, he was serving as Acting Attorney General when you took 

over last November. He had served in the Department of Justice 

since June of 2002 as a Principal Deputy and Acting Associate Attorney General and as Assistant Attorney General for the Civil Division. 

Please give the Committee your insight, your perspective on Mr. 

Keisler’s service at the Department and his overall fitness for the 

Federal bench. 

Attorney General MUKASEY. I have to tell you that my only regret about Peter Keisler is that his tenure and mine overlapped for 

only 13 days. I worked with him closely before confirmation. I 

worked with him after confirmation. I have spoken to him since. 

I have met a lot of people in my time who are suited to be Federal 

judges. I don’t think there is anybody that I could name who has 

more intellectual and personal qualities that suit him for the Federal bench than Peter Keisler. He is one of nature’s noblemen, and 

17 

I say that without diminishing the quality of the other people that 

I have met, both people who serve on the bench and people who 

are candidates for the bench. He is in a separate category. He is 

absolutely outstanding. He is in the same—you delivered a speech 

after the retirement of Paul Clement. He is a person in that category, if the category can include more than one person. 

Senator HATCH. Well, thank you. 

As you know, the Supreme Court recently recognized that the 

Second Amendment to the Constitution protects an individual’s 

right to possess firearms for self-defense in the home. Now, it never 

ceases to amaze me how some people claim to see all sorts of unwritten rights in the Constitution but apparently cannot see the 

ones that are expressly written there as plain as day. They want 

to read between the lines, but refuse to read the lines themselves. 

Now, I for one am glad the Supreme Court finally recognized this 

fundamental right, and I want to ask you about how the decision 

will be implemented. The Court rejected the administration’s argument that the case should be remanded to the lower court for application of the lower standard of review. But the Court did say that 

its decision does not necessarily cast doubt on longstanding prohibitions on certain types of firearms or possession of firearms by certain individuals. 

I assume you and others at the Department have been studying 

that decision, and I would welcome your thoughts on how you think 

it impacts current Justice Department policy or Federal statutes 

that are currently on the books. 

Attorney General MUKASEY. We have been studying the decision. 

I think the decision is consistent with the Department’s express 

view that the right is a personal one. It is also consistent with the 

Department’s view that it should not and does not interfere with 

the ability of the Federal Government to enforce existing firearms 

laws, including restrictions on the nature of certain firearms, including restrictions on the possession of firearms by felons and people who are otherwise unsuited to carry them, and including restrictions on where they can be carried. That decision explicitly in 

some instances is entirely consistent with the continued enforcement of Federal firearms statutes, and we have no hesitation in 

saying that, and we have no trepidation in that regard. 

Senator HATCH. Well, thank you. My time is up. 

Chairman LEAHY. Thank you very much. 

Senator Kohl. 

Senator KOHL. Thank you, Mr. Chairman. 

Mr. Attorney General, a report in the Los Angeles Times last 

week highlighted the fact that the Office of Professional Responsibility has been conducting investigations into allegations of improper conduct by lawyers in the Justice Department. One concern 

raised by the article is that the investigations are being kept secret, which is contrary to OPR’s usual practice. The Department 

under this administration has the reputation of using excessive secrecy to keep misconduct from the public. Keeping this policy in 

place simply reinforces Americans’ worst fears. 

As you said earlier, you were put in place in great part to restore 

the reputation of the Justice Department. In a democratic society, 

the people have a right to know whether investigations show misVerDate Nov 24 2008 14:38 Oct 19, 2009 Jkt 052690 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\52690.TXT SJUD1 PsN: CMORC
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conduct by Government officials, and I think you would agree with 

that. So why has the administration changed the OPR policy of 

making its findings public? Will you commit today to making public 

the summaries of any OPR investigations that do find misconduct? 

Attorney General MUKASEY. I certainly agree with the Senator’s 

view that Government has to be as transparent as it can possibly 

be. OPR conducts investigations of lawyers, not simply across the 

board of Justice Department employees. Lawyers have particular 

obligations under the rules of the bar to which they are admitted 

and under professional standards. Virtually anything can result in 

the opening of an OPR investigation. Many of those investigations 

are opened and closed without incident. Those that are opened as 

to which reason for criticism is found can be referred to bar associations, and often are. They are in a particular category. 

Some OPR investigations are carried on along with the Office of 

the Inspector General, and those are made public. Some OPR investigations are made public on their own. I think it varies from 

case to case. But one has to be, I think, very careful in whether 

one is going to ruin the professional career of a lawyer based on 

unsubstantiated allegations that simply result in an OPR investigation. 

I am very wary about making blanket commitments with regard 

to OPR investigations, notwithstanding that I am firmly committed 

to publicizing those things that should be publicized, publicizing 

joint OPR–OIG investigations, as they have been in the past and 

will be in the future. 

Senator KOHL. When OPR investigations do find misconduct, are 

you committed to making that public? 

Attorney General MUKASEY. If OPR investigations find serious 

misconduct that necessitate the dismissal of an employee, I think 

that is probably something that should be publicized. OPR investigations that simply say that somebody should receive a private 

admonition or an admonition under the standards applicable to a 

bar, again, may be referred to the bar association for its disposition. Bar associations often get charges that result in private admonitions. Sometimes they get charges that result in public admonitions. And the same is true of OPR investigations. 

Senator KOHL. Mr. Attorney General, the Justice Department 

has spent enormous time and effort prosecuting price-fixing cartels, 

and yet the worst and the biggest cartel in the world is the OPEC 

oil cartel, and we have not taken any action against them. The actions of OPEC are one of the main reasons that gas prices are now 

more than $4 a gallon. I have introduced—and we have had positive response from both Houses—the NOPEC bill which would permit antitrust actions against the OPEC cartel. 

Would you support the Justice Department having the authority 

to bring antitrust lawsuits against OPEC member nations? 

Attorney General MUKASEY. I think the Justice Department is 

committed to competition. I think we have proved that time and 

time again. OPEC presents a very special problem. We don’t want 

to be in the position of—forgive me for the comical illustration— 

a dog chasing a car. What do we do when we catch up with it? Let’s 

assume that we get a verdict against OPEC. OPEC can, as a cartel, 

essentially cease to do business with us and make things worse 

19 

rather than better. So we need to be very, very careful about how 

we approach any sort of antitrust proceeding that could result in 

a great deal of damage to this country. 

Senator KOHL. I do not disagree with that. I am asking whether 

you would like for the Department to have the authority to take 

action in a case that it decided it was the right thing to do? 

Attorney General MUKASEY. I would like to be able to look into 

the issue further than I have, but I think the need for caution is, 

as you acknowledged, apparent and, that is, we can’t bring actions 

in a way that could result in doing more harm than good. 

Senator KOHL. I do not disagree. But the question is would you— 

which is what the bill would allow the Justice Department—not 

that they would be required to take action, but that they would 

have the authority if in the good judgment of the Department the 

authority was to be used judiciously. Would you support having the 

authority, which is what the bill is set up to do? 

Attorney General MUKASEY. I haven’t seen the bill. I think how 

that authority is phrased and what— 

Senator KOHL. It does not require the Justice Department to 

take action. It gives them the authority. 

Attorney General MUKASEY. I understand that, but the circumstances in which that authority is to be exercised, the elements 

to be considered, and the matters to be considered are all matters 

of moment. And we have to look very carefully at the consequences, 

also at how the American people would receive news that the Justice Department is now empowered to go after OPEC. I think we 

need to be very, very careful about that. I want to look at the bill. 

I want to look at the language. I don’t want to give an off-the-cuff 

answer before I have seen it. 

Senator KOHL. So you do not have an answer to the question? 

Attorney General MUKASEY. I don’t because I have very much 

concern—very great concern with the consequences, and I want to 

see the bill before I respond in blanket fashion one way or another 

that we would welcome having the authority. It is always nice to 

have authority. I think how it is to be exercised, how discretion is 

to be exercised is— 

Senator KOHL. Could you take a look at the bill and give me an 

opinion? 

Attorney General MUKASEY. I will certainly look at the bill. I will 

certainly look at the bill because it is a very important issue. 

Senator KOHL. I thank you. I would like to get your opinion on 

it. 

Finally, one of the very few industries, Mr. Attorney General, to 

enjoy an exemption from antitrust law is the freight railroad industry. Because of this exemption, rail shippers have been victimized 

by the conduct of dominant railroads, and they have no antitrust 

remedies. Higher rail shipping costs are passed along to consumers, 

resulting in higher electricity bills, higher food prices, and higher 

prices for manufactured goods. 

I have introduced a bill to abolish this obsolete antitrust exemption for railroads. Do you agree that this antitrust exemption 

should be repealed so that railroads are subject to the same antitrust laws as virtually every other industry in our economy? 

20 

Attorney General MUKASEY. I think any antitrust exemption that 

is out of date or counterproductive should be re-examined, and I 

will examine that bill, just as I would the other bill that you mentioned. I haven’t seen it, but certainly the Antitrust Division tries 

to ensure competition across the board in every industry, be it that 

one, be it others. 

Senator KOHL. Thank you very much. 

Senator FEINSTEIN. [Presiding.] Senator Kyl is next. 

Senator KYL. Thank you, Madam Chairman. I want to thank 

Senator Grassley for graciously switching with me here since I will 

have to leave, and I am sorry that I will have to leave after I have 

questioned. 

Because of Senator Biden’s characterization of my views, slightly 

inaccurately—and I know he did not mean it intentionally—I need 

to take a couple minutes to respond to that. This has to do with 

Byrne grants, and Senator Biden acknowledged that he and I have 

had a lot of conversations about how to utilize the money that 

heretofore has been available for Byrne grants. 

It is not my opinion that there is no role for the Federal Government to assist local law enforcement; rather, my view is that it is 

a matter of priority and that, to the extent that funds are available, we should first focus those funds on areas where there is a 

Federal nexus. For example, on border enforcement, we have a horrible situation in Pima County and Cochise County and Yuma 

County, Arizona, where we need far more Federal resources to assist our local sheriffs and county attorneys and so on because of the 

drug smuggling and illegal immigration. That is a place where 

these funds can very efficaciously be applied. 

Reservations, both Indian reservations and military reservations, 

especially Indian reservations, are in desperate need of more funding. That is a trust responsibility for the United States, and my 

view has always been that if we have money available, better to 

put it there than to help the city of Scottsdale hire more police officers, for example. 

And then, finally, in areas of expertise, I mentioned drug prosecutions, but also things like FBI agents who can work on things 

like bank fraud, that is of very big assistance to local governments, 

which frequently do not have that kind of capability. So that is the 

actual view that I have, and I certainly will support more funding 

in those areas where we have a Federal nexus. 

Now, Attorney General Mukasey, Senator Specter made the 

point—and I agree with him, and I will quote him directly—that 

‘‘leaks are intolerable.’’ He mentioned the Curt Weldon case. I did 

not look it up in the dictionary, but to me ‘‘intolerable’’ means either that action has to be taken to prevent them and/or to remediate the situation that they occur, which could also mean prosecution if laws are violated. This, of course, brings up the so-called 

media shield bill, which Senator Specter alluded to as well. 

Some of the supporters of this bill argue that the national security concerns that you have raised, the intelligence community has 

raised, that I am concerned with, are addressed in the bill by an 

exception that the bill provides to prevent terrorist activity or harm 

to national security. What is your view about the exceptions in the 

bill that purportedly address this issue? 

21 

Attorney General MUKASEY. My view is that those are simply not 

adequate. The exemption for national security would require the 

Government to show that the harm to be done by a publication outweighs the good to be achieved by a publication with no standard 

but that in mind. A judge would have no standard other than his 

own predilection. Also, the Government would be put to the burden 

of coming to court to show even more than has already been disclosed or that may already be disclosed for the purpose of proving 

the possible harm. 

In addition, the bill, although it may be useful on September 10, 

isn’t useful on September 12. In the case of investigating prior acts, 

in the case of investigating material that has already been leaked, 

the burden that is imposed on the Government is even higher than 

the one that is imposed before. The bill would require the Government to prove that information was properly classified, that the 

person who leaked it, who they already have to know about, leaked 

it rather than having—was in authorized possession of it, which 

would enable that person to simply transfer the information to 

somebody else for the purpose of having it leaked. 

It would require the Government, when it was conducting a perfectly valid FISA interception, if a reporter called a target of that 

FISA interception, whether it was a foreign power or not, to give 

the reporter notice of the existence of a FISA interception regardless of whether anybody was trying to get confidential information 

or not. There are just numerous, numerous things that are defective in the protections that that bill affords. 

Senator KYL. Thank you, and let me see if I understand one of 

the first points you made about September 10th but not September 

12th, I think, and I don’t have the entire wording in front of me, 

but that refers to the wording in the so-called national security exception that provides that it only—that the Government would 

have to show by a preponderance of the evidence that the information the Government seeks would assist in preventing an act of terrorism. 

Attorney General MUKASEY. Correct. 

Senator KYL. So after the fact, the national security exception 

does not provide you any solace. 

Attorney General MUKASEY. None. 

Senator KYL. And I think the point here about the only evidence 

of the leak being the leak itself has to do with one of the requirements, which is that there be other evidence of the crime— 

Attorney General MUKASEY. Often the only evidence available to 

the Government is the leak itself. 

Senator KYL. Is the leak itself. So— 

Attorney General MUKASEY. We can’t use that as the only evidence. 

Senator KYL. So the bottom line here is that there are serious 

national security concerns that the exception that purportedly addresses these concerns will need to have additional work before it 

could at least achieve the purpose of that exception, I gather, in 

your view. 

Attorney General MUKASEY. At the very least. 

Senator KYL. Now, would you also—and just in the last 40 seconds here, my understanding is that the concerns with this soVerDate Nov 24 2008 14:38 Oct 19, 2009 Jkt 052690 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\52690.TXT SJUD1 PsN: CMORC
22 

called reporter shield bill are not just the Department of Justice, 

but that it also concerns the Director of National Intelligence, the 

Secretary of Defense, the Secretary of Homeland Security, the Secretary of the Treasury, the Secretary of Energy, and the heads of 

16 component agencies of the intelligence community, all of whom 

have expressed their opposition to the bill. Is that correct, to your 

knowledge? 

Attorney General MUKASEY. It is correct. I think it is fair to say 

that every head of an entity that has equities in national security 

has signed onto opposition to that bill, and not for no reason. 

Senator KYL. Thank you very much. Obviously, my view is that 

bill needs a lot more work. 

Thank you, Madam Chairman. 

Senator FEINSTEIN. Thank you very much, Senator. 

Senator KYL. And, again, thank you, Senator Grassley. 

Senator FEINSTEIN. Mr. Mukasey, I am really very disappointed 

in your answer to Senator Biden’s question, and I want to point out 

how I looked at the politicization of the Department. I believe several United States Attorneys were fired for political reasons. I believe that the Civil Rights Division may well have been politicized. 

I believe, according to the Attorney General and the OPR, the honors program was politicized. The summer intern selection program 

was politicized. OLC opinions were politicized. The Civil and Tax 

Divisions may have been politicized. The voting rights case decisions were politicized, specifically Texas redistricting and the Georgia voter ID. The rules were changed in that Division to permit 

changes that would allow more political effort. The Red Book was 

changed to a Green BoOkay. The hiring of immigration judges was 

politicized based on testimony of Kyle Sampson before this body. 

And the major was an attempt by the White House to overturn Jim 

Comey’s opinion on the Terrorist Surveillance Program to convince 

a very sick Attorney General to overturn it. 

If that isn’t politicization, I do not know what is. And when you 

answered Senator Biden to say effectively there was no 

politicization of the Department, it struck me quite badly. If you 

would like to respond to that, I would be happy to hear the response. 

Attorney General MUKASEY. I would be happy to respond to it. 

Two of the items you cite, which were the firing of the U.S. Attorneys and one of the other matters you cite, are currently under investigation by the Office of the Inspector General along with OPR. 

And when those reports are received, they will be reviewed and 

they will be acted upon, just as the recent report of the Inspector 

General with regard to the hiring of summer interns and with regard to the hiring of lawyers in the honors program was acted 

upon. Indeed, actions were taken even before it was in place. That 

report was issued, as well as additional recommendations in that 

report having been embraced. 

We have revised the rules with respect to contacts with the 

White House. We have changed those. We have revised the procedures that we use for the hiring of immigration judges. We have 

been hiring immigration judges on a non-political basis according 

to these new rules. 

23 

So those reforms, those changes have been put in place, and they 

are matters of ongoing concern. I am not unconcerned with that. 

Senator FEINSTEIN. I am happy to hear that. When Senator 

Biden asked you the general question, did you find the Department 

politicized, you essentially said no. And what I want you to know 

is that in the view of many of us, the Department has lost enormous credibility because of the things that I have mentioned. 

Now I would like to just move on to a question on Guantanamo. 

On June 20th, the Court of Appeals for the D.C. Circuit issued its 

first decision reviewing a case of a detainee held at Guantanamo 

under the review process laid out in the Detainee Treatment Act, 

and this, of course, is the case of Huzaifa Parhat, a Uighur who 

was handed over to the United States after being picked up in 

Pakistan following the start of coalition bombing in Afghanistan. 

The Combatant Status Review Tribunal, which reviewed Parhat’s 

case, relied on classified information to conclude that Parhat was 

part of a Uighur movement associated with al Qaeda and the 

Taliban. In an unanimous opinion, the D.C. Circuit rejected this argument, concluding there was no evidence to support the assertion. 

Here is the question. What are your plans, if any, for reviewing 

the case files of other detainees at Guantanamo to ensure that 

there is adequate evidence to support their detention? 

Attorney General MUKASEY. As you know, Parhat is certainly not 

the only case before us. Boumediene was a substantial change in 

the landscape which we are reviewing and attempting to deal with 

in an orderly fashion with the D.C. district court that has jurisdiction over those cases. 

With regard to Mr. Parhat, the D.C. Circuit found inadequacies 

in the CSRT proceeding to which he was subjected and in which 

evidence was presented. I think it is fair to say that after the decision in Boumediene, the status of CSRTs entirely is a matter that 

has got to change. It is going to change in the direction of having 

habeas proceedings. We are trying to organize an orderly way to 

address the situation not only of Uighurs, obviously, but of others 

who are detained at Guantanamo so as to assure that their case 

is going to be dealt with in an expeditious fashion. 

I think it is fair to point out, though, that the CSRT proceeding 

was a result of the statute enacted by Congress in 2006 along with 

the President in response to a specific invitation by the court. 

Senator FEINSTEIN. Thank you. My time is up. 

Senator Grassley, and I will turn this over to Senator Biden. 

Here is the last. 

Senator BIDEN. [Presiding.] Senator Grassley. 

Senator GRASSLEY. General, usually before I ask questions, I try 

to point out some communications between your Department and 

me or other members of the Committee that may not be answered 

just to bring them to your attention because you may not know everything going on. And I do this in the same vein that, as an example, in the 14 town meetings I had last week in Iowa, ‘‘Have I answered your mail? ’’ You have not answered all of our mail, and I 

would like to have you start out your meetings by asking each of 

us if we have answered your letters. But we have a number of outstanding requests, and some of them have even been highlighted 

in my mail in a letter that Chairman Leahy sent to you to highVerDate Nov 24 2008 14:38 Oct 19, 2009 Jkt 052690 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\52690.TXT SJUD1 PsN: CMORC
24 

light it dated July 1, 2008. We have outstanding e-mails—requests 

for e-mails related to exigent letters, answers to questions related 

to Cecelia Woods, and written followup questions from FBI Director 

Mueller from March 5th oversight hearing, and then also to inform 

you that you will soon be receiving a letter from me as a member 

of the Finance Committee and Chairman Baucus about correspondence that we sent around 6 months ago and just recently received 

a non-response. It involves what we believe is misuse of District of 

Columbia U.S. Attorney’s Office and the intervention of a hearing 

that we were trying to conduct. We did receive a response that was 

embarrassingly inadequate. So I hope that you would do attention 

to all of these communications. 

Attorney General MUKASEY. I am going to pay attention to those 

communications. I know we did receive recently a letter from the 

Chairman referring to past correspondence. I don’t recall whether 

it concerned yours. I believe we have dealt with the correspondence 

that is referred to in that letter. But obviously we try to answer 

the mail in more senses of that term than one. 

Senator GRASSLEY. Okay. 

Attorney General MUKASEY. If we haven’t, I apologize for it and 

regret it. 

Senator GRASSLEY. Okay. Before I ask questions, I think that 

your Department is headed in the right direction in all of these 

questions that I am going to ask you now in regard to the handling 

of potential fraud and other problems that come from natural disasters. The recent floods and tornado disasters in Iowa have taken 

a hard toll on thousands of my citizens, so I was pleased to see a 

recent press release that your Department put out warning Iowans 

not to become ‘‘a victim twice’’ and to beware of fraudsters trying 

to steal people’s identity by asking for their FEMA registration 

numbers or Social Security numbers. 

The Justice Department warned about scam artists preying on 

disaster victims, particularly contractor fraud, predatory pricing. 

The Justice Department also warned about charity scams. Unfortunately, in every disaster situation, we have these low lifes come out 

of the woodwork to prey on people. 

General, have you seen any of these kinds of problems—well, 

three questions. Have you seen any kinds of these problems so far 

in Iowa? What has the Justice Department done to get the word 

out and make sure that Iowa’s citizens are not victimized by scam 

and con artists? And is the Justice Department working with law 

enforcement officials in Iowa to protect citizens from these things? 

Attorney General MUKASEY. The U.S. Attorney for the Northern 

District of Iowa has met with local and State authorities, including 

the Iowa Attorney General’s office, as well as other Federal authorities to make sure that claims of fraud are coordinated and 

dealt with quickly and appropriately. I am happy to say that, as 

far as I know, so far we have not found any instances of Federal 

fraud, although I understand that there are some State fraud allegations, at least, that have been made. 

We do have available to us the task force that was set up in connection with Katrina, which we could use, at least in part, to address any possible fraud claims that we get here. So far, as I said, 

25 

we haven’t gotten any at the Federal level, but we are well prepared, I hope, to deal with them when as and if they come. 

Senator GRASSLEY. Well, I think you partly answered my next 

question. I did send a letter to the Governing Council of Inspectors 

General asking that they establish a working group that will coordinate Government oversight of moneys appropriated for disaster 

recovery in the Midwest. We have a duty to ensure that the money 

appropriated is spent for its purpose and not going to opportunists. 

We have learned a lesson that stopping contractor fraud is up front 

cheaper than chasing money. The Inspectors General responded 

and informed me of this disaster working group—I think it is the 

same one you are referring to—that they met on July the 2nd to 

coordinate oversight efforts. 

So I would have these questions in regard to that. Is that the 

same oversight group you were referring to? 

Attorney General MUKASEY. It may not have been, although the 

FBI does work closely with Inspectors General, and the Justice Department is going to pursue, obviously, any cases that are uncovered by the IGs. 

Senator GRASSLEY. So then I think you answered my first question, that the Justice Department will lend resources to help ensure that those dollars are protected from fraud. 

Has the Department taken any other proactive steps on its own 

too coordinate with various Federal agencies that will provide disaster relief funds? 

Attorney General MUKASEY. The Office of Justice Programs, Bureau of Justice Assistance, has developed an Emergency Incident 

Response Plan to help give technical assistance and to address 

questions about grant programs, problems accessing funds and to 

rebuild program files that might have been damaged so as to make 

sure that people can meet deadlines and get their applications in 

on time. And, obviously, where we can provide accommodations, we 

are going to do so. And we are actively looking at other programs 

and options to help the people of Iowa recover. 

Senator GRASSLEY. Now, last, it was about 2 weeks ago I led the 

Iowa delegation in a letter to you requesting that special consideration be given to applications from law enforcement agencies impacted by flooding situations for both COPS and Byrne/JAG grant 

programs administered by your Department. They provide vital 

funding for State and local law enforcement agencies. They help 

buy equipment, pay training, fund multi-jurisdictional task forces, 

and help hunt down fugitives, et cetera. In a time of need following 

a disaster, these funds can help small rural police and sheriff’s departments get back on their feet and replace equipment destroyed 

by flooding. The deadlines for these programs are fast approaching. 

They may have to be, some applications, amended. 

Will the Department of Justice give special consideration to these 

requests to ensure that law enforcement agencies impacted by 

flooding are not forgotten? 

Attorney General MUKASEY. We are certainly going to give whatever consideration we can, and we are going to help them so that 

they can meet deadlines even where we cannot extend them. So, 

yes, we are going to give consideration to those, and, obviously, to 

26 

the extent they have more pressing needs, they are going to go 

ahead on the list. 

Senator GRASSLEY. And that is directly related to the flooding? 

Attorney General MUKASEY. It is. 

Senator GRASSLEY. Okay. Thank you, Mr. Chairman. 

Senator BIDEN. Thank you. 

Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Welcome, Mr. Attorney General. 

Attorney General MUKASEY. Thank you. 

Senator FEINGOLD. Let me start by commenting on the Inspector 

General’s and Office of Professional Responsibility’s recent report 

on politicized hiring in the Department’s honors program. The report notes that one of the candidates who was almost certainly rejected for political reasons was a young man who was first in his 

class at Georgetown Law Center, clerked for a district judge, and 

also on the Second Circuit. But he also made a mistake, and that 

was working as a law clerk for my Judiciary Committee staff, 

which apparently played a part in disqualifying him for an honors 

program position. He now works for the Solicitor General of the 

State of New York, so he has done fine. But for the most petty and 

inappropriate of reasons, the Department of Justice lost out on a 

very talented young lawyer. The people responsible not only intentionally interfered with the careers of fine young lawyers, but they 

damaged the Department and the Nation. I want you to know that 

I find this conduct unacceptable and truly hope that the promises 

you made to end this kind of behavior at the Department are being 

kept. 

My question to you now, however, is more specific. In light of the 

report, what specific actions have you taken and what further actions do you intend to take to hold those who broke the law here 

accountable? 

Attorney General MUKASEY. We have put in place a system that 

assures that all hiring with regard to the honors program and with 

regard to the summer internship program is entirely in the hands 

of career lawyers, and obviously anyone who is qualified to serve 

in the Department of Justice is welcome to submit his or her application and to be evaluated on the merits. 

Senator FEINGOLD. But what about accountability for those who 

did this? 

Attorney General MUKASEY. I think that to the extent that there 

is to be accountability, that was covered in the OIG report. People 

who were deficient were—some of them are no longer at the Department. Others came in for criticism. 

Senator FEINGOLD. Well, I will want to review exactly—excuse 

me, sir. 

Attorney General MUKASEY. No. If you can point to any criminal 

laws that were violated, obviously those— 

Senator FEINGOLD. Well, we will take this up more later, but 

thank you for that initial response. I am very concerned that the 

message be clear that this is unacceptable and that requires real 

accountability. 

In 2007, the Justice Department issued draft regulations to implement a law that gives the Attorney General, rather than the 

27 

courts of appeals, the authority to allow States to opt into procedural rules in Federal habeas corpus actions that favor the Government, and I think disadvantage the inmate habeas petitioner. And 

to get this benefit, States are supposed to prove that they provide 

competent counsel in post-conviction proceedings, but some serious 

concerns have been raised about the clarity and completeness of 

DOJ’s proposed implementing regulations. Even the Judicial Conference has asked DOJ to reconsider the regulations, stating that 

the regulations provide ‘‘no guidance about the criteria to be considered by the decisionmaker’’ in assessing whether a State has 

provided competent counsel. 

I asked you some questions for the record about these regulations 

after the last DOJ oversight hearing, and your responses were a 

little more cavalier than I expected given the gravity of this issue 

and the significant change in habeas procedure that these regulations would implement. 

Now, before the final regulations go into effect, I want to understand fully the Justice Department’s justifications for them. So I 

am going to have a number of detailed written questions that I will 

provide you after the hearing. I would like your commitment today 

to answer my questions fully and give your personal attention to 

them before these regulations are finalized. Will you commit to 

that? 

Attorney General MUKASEY. Yes. 

Senator FEINGOLD. All right. You mentioned in your testimony 

that you are trying to determine whether the Attorney General 

guidelines governing the FBI’s investigative activities can be ‘‘consolidated and harmonized.’’ According to a report by AP last week, 

the Department will put in place revised guidelines later this summer that will permit the FBI to open preliminary inquiries about 

Americans ‘‘without any evidence of wrongdoing, relying instead on 

a terrorist profile that can single out Muslims, Arabs, or other racial and ethnic groups.’’ 

Now, according to the article, ‘‘Among the factors that could 

make someone the subject of an investigation is travel to regions 

of the world known for terrorist activity, access to weapons or military training, along with a person’s race or ethnicity.’’ 

So let me ask you first: Under these new guidelines, will the fact 

that a person is of a certain ethnicity or national origin be enough 

without any evidence of wrongdoing to justify a preliminary inquiry? 

Attorney General MUKASEY. No. And that is—that represents no 

change from prior rules that say that we do not use that as the 

basis alone for predicating an investigation into anyone. These new 

regulations are a part of a process—I don’t mean to be more expansive than you want, and please cut me off if I— 

Senator FEINGOLD. Well, let me just do a followup question to get 

to specifics. Thank you for that clear answer. But let me try this 

one: What about if a person is a U.S. citizen of Pakistani descent 

who has traveled frequently to Pakistan? Now, would that be 

enough to potentially trigger an investigation? 

Attorney General MUKASEY. I think the circumstances of a person’s travel would be one element or maybe one element in determining whether a person is appropriate for conducting an inquiry. 

28 

But I think it is useful to point out that this is part of an ongoing 

process that has gone on really since right after September 11, and 

it has gone on with the urging of bipartisan commissions, including 

the 9/11 Commission, including the Silberman-Robb Commission, 

that the FBI not only be a crime-solving organization but be an intelligence-gathering organization. 

Senator FEINGOLD. And I respect that. I am a member of the Intelligence Committee. But my specific question was whether the 

frequency of travel by a U.S. citizen of Pakistani descent to Pakistan in and of itself would be sufficient to potentially trigger an investigation? 

Attorney General MUKASEY. I think the regulations, before they 

come out, will be made known to this Committee, will be reviewed 

with this Committee, and certainly before they are effective they 

will be reviewed with this Committee. And I am not prepared to 

discuss today particular hypotheticals one way or the other, particularly unmoored from any other evidence that is in the hands of 

investigators. 

What I do want to point out, though, is that the investigations 

take regulations that apply to the opening of criminal investigations and regulations that may apply to the opening of intelligence 

investigations and try to harmonize them so we do not have crosscutting regulations— 

Senator FEINGOLD. Let me just ask one more question before my 

time ends. And I appreciate your responsiveness. 

What about if such a person also owns a gun—which, by the 

way, the Supreme Court has just definitively held is an individual 

constitutional right, a decision I agree with. Might that person be 

investigated by the FBI based on that information alone? 

Attorney General MUKASEY. Senator, again, I don’t want to get 

into ‘‘what if’’ before the regulations go into place. I should point 

out that when I was a judge, I presided over a case in which First 

Amendment expression was proved as part of the case in which 

otherwise confidential conversations were proved as part of the 

case because, along with other evidence, they were relevant in determining whether the defendants in that case were guilty. So I 

think it is very important to consider all of these matters in context. And I think the regulations will assure that the nature of evidence to be gathered and the way that it is gathered is subject to 

review, and also so that it becomes apparent that not only have the 

ways in which the FBI goes about gathering evidence changed, but 

also the oversight both within the FBI and within the Justice Department, and NSD has been enhanced to keep track with and to 

keep pace with the increased authority of the FBI to gather intelligence. And I think— 

Senator FEINGOLD. I will be following this very closely— 

Attorney General MUKASEY [continuing]. Will reflect that. 

Senator FEINGOLD. I look forward to working with you on this 

matter as it evolves. 

Thank you, Mr. Chairman. 

Senator BIDEN. Thank you, Senator. 

Senator Schumer. 

Senator SCHUMER. Thank you, Mr. Chairman. And thank you for 

being here, Attorney General. 

29 

Now, Judge Mukasey, at your confirmation hearing, I told you 

how troubled I was about the allegations of politicization in some 

of the Department’s prosecutions. We talked about hiring, but 

these are prosecutions. In particular, I urged you to get to the bottom of deeply disturbing allegations about the case of Don 

Siegelman, the former Governor of Alabama. I pointed out at the 

time, although Siegelman was convicted of several counts, witnesses have credibly contended his case was politically motivated 

and selectively prosecuted. Some of the specific allegations include: 

that Karl Rove asked Jill Simpson, a life-long Republican and practicing lawyer in Alabama, to try and take pictures of Siegelman 

cheating on his wife or in compromising positions; that Rove personally contacted the Department of Justice and pushed for a second prosecution of Don Siegelman after a Federal judge dismissed 

the first case against him. Karl Rove, of course, has refused to appear before Congress and testify under oath about his involvement 

in the Siegelman case. 

When I asked you to take a thorough and personal look at the 

Siegelman case, you were reluctant. You said the case was on appeal. And I must say that I think it is time you get to the bottom 

of this because there have been some startling new developments 

in the case since. 

First, in a highly unusual decision, the Eleventh Circuit Court 

released Siegelman on bail pending his appeal, finding that, ‘‘There 

was substantial question of law or fact likely to result in reversal.’’ 

Not only that, but in connection with that appeal, 54 State Attorneys General, Democrats and Republicans, filed a brief supporting 

the appeal. That is an astonishing bipartisan act, knowing that 

prosecutors are very reluctant to take issue once a jury has convicted somebody from the Justice Department. I think it underscores the flimsiness of the case and the concern about selective 

prosecution. And I have to tell you, nothing, I think, has troubled 

me more than this. This is almost like if the allegations are true— 

obviously, that is a big ‘‘if’’—it is like making the Justice Department the Justice Department in a banana republic. You do not like 

someone; you go after them; you prosecute them on flimsy evidence. 

It is really troubling. 

So I want to ask you some questions about this because I am 

deeply troubled about this, and it is the kind of thing that I believe 

that you, when you testified before us, would want to get to the 

bottom of and eliminate even the appearance that something like 

this happened. 

So, first, there is, in fact, an OPR investigation underway in the 

Siegelman case. Is that correct? 

Attorney General MUKASEY. Yes. 

Senator SCHUMER. Okay. Do you know when it began? 

Attorney General MUKASEY. No. 

Senator SCHUMER. Could you find out for us? 

Attorney General MUKASEY. I suppose I could find out when it 

began. 

Senator SCHUMER. OK, good. Do you know when it will be complete or how far along it is? 

Attorney General MUKASEY. I meet regularly with the head of 

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30 

ously, they are working on it, as they are on other matters, along 

with OIG, when there are joint OIG investigations. And I have no 

reason to believe that anybody is slow-rolling that or dragging— 

Senator SCHUMER. Well, do you ask questions and make sure 

that that is occurring, that this is given—this one is different than 

lots of other cases. When 54 Attorneys General write a letter, when 

the Eleventh Circuit calls into question the conviction on the basis 

of some fact or law, and the allegations are—you would admit if 

the allegations are true, it would be stunning. Isn’t that correct? 

Attorney General MUKASEY. If the allegations are true, it would 

be stunning. I think it is fair to point out that the Eleventh Circuit’s decision had to do with issues raised on appeal— 

Senator SCHUMER. I understand. 

Attorney General MUKASEY [continuing]. By Mr. Siegelman that 

went to particular counts of the indictment and that did not go to 

the matters that you discussed. But I certainly agree that if the allegations you make are true, that would be stunning. 

Senator SCHUMER. Okay. So shouldn’t this get a high priority 

from OPR? 

Attorney General MUKASEY. I think it has substantial priority. 

Senator SCHUMER. Okay. That is what I want to make sure of. 

Attorney General MUKASEY. But I am not— 

Senator SCHUMER. When you said before, well, there are a whole 

lot of things they investigate— 

Attorney General MUKASEY. No, no, no. I am not suggesting that 

this is down on the list at all. 

Senator SCHUMER. Okay. Can you assure us it will come to a conclusion before this administration’s end? 

Attorney General MUKASEY. I have every reason to believe that 

it will. 

Senator SCHUMER. Good. Do you know how many lawyers or investigators are working on it? 

Attorney General MUKASEY. No. And I don’t know that with respect to any investigation. 

Senator SCHUMER. Right. But OPR, this is not like the IG. You 

appoint the head of OPR. He serves at your pleasure. 

Attorney General MUKASEY. I did not appoint this head of— 

Senator SCHUMER. I understand. You have the authority to appoint. 

Attorney General MUKASEY. And Marshall Jarrett is a superb, 

qualified person. 

Senator SCHUMER. Okay. 

Attorney General MUKASEY. I don’t know of anybody who has 

ever— 

Senator SCHUMER. And do you believe there are enough resources— 

Attorney General MUKASEY. Yes. 

Senator SCHUMER [continuing]. Being used on this case? 

Attorney General MUKASEY. There certainly is. 

Senator SCHUMER. Okay. Now, next question, and this one is 

pretty serious. Will you make the OPR findings public when the investigation is complete? I know you had a general discussion with 

Senator Kohl. 

31 

Attorney General MUKASEY. That depends on what they are, and 

for the same reasons as concerned my discussion with Senator 

Kohl, the same reasons apply to this. I don’t know in advance what 

OPR is going to find. 

Senator SCHUMER. But don’t you think either way, no matter 

what they find, given the seriousness of these allegations, calling 

into question the very fundamentals of neither fear nor favor before 

the law, that these should be made public? If they say there is 

nothing wrong, I would want to know, and if they say there is 

something wrong. What would be a reason not to make this public? 

Attorney General MUKASEY. I think there are various avenues 

open for exploring those allegations, including exploring their 

source and having testimony on the subject. OPR is not the only 

avenue. 

Senator SCHUMER. Well, I understand that, but why wouldn’t you 

commit to making this public? 

Attorney General MUKASEY. For the simple reason that I don’t 

know what the conclusions are going to be. 

Senator SCHUMER. Well, give me a reason, just give me a hypothetical reason why they shouldn’t be made public? 

Attorney General MUKASEY. If OPR determines that somebody 

did nothing wrong or that a lawyer neglected to attend to a detail 

in a way that under State law would warrant only a private admonition, for me to make those public— 

Senator SCHUMER. Okay. Well, let me ask you this: If—and this 

is a big ‘‘if.’’ If OPR finds that there were political interference in 

the case, will you make that part of it public if it is not a lawyer 

making some kind of— 

Attorney General MUKASEY. I think—cases are brought for all 

kinds of reasons, and we have all—I have had the experience of 

having a divorced wife walk in, having had the goods on her exhusband, and deliver them and bring a case for that reason, because she would like to see him suffer. That is not a noble reason. 

But that is not— 

Senator SCHUMER. OK, but that is not what we are discussing 

here. 

Attorney General MUKASEY [continuing]. A reason for not bringing the case. 

Senator SCHUMER. That is not what we are discussing here. I 

asked you if the allegations that are made are true that there was 

political interference, is there any reason not to make that public? 

Attorney General MUKASEY. If there is interference with the 

course of a case, that is a matter of a whole different— 

Senator SCHUMER. Well, how about if Karl Rove did suggest a 

second prosecution for Siegelman after the first? 

Attorney General MUKASEY. That is the kind of ‘‘if’’ that depends 

on the underlying evidence. I think we ought to await— 

Senator SCHUMER. Well, why shouldn’t it be public regardless 

whatever the underlying evidence is? He may have come across 

some new fact. 

Attorney General MUKASEY. He may indeed. 

Senator SCHUMER. Okay. But why shouldn’t that be made public? 

You are not giving me a very good reason, sir. 

32 

Attorney General MUKASEY. I don’t see publicizing the source of 

an allegation if the allegation turns out to be true. 

Senator SCHUMER. Let me ask you one more question with the 

Chair’s indulgence. Should Karl Rove be interviewed in this case? 

Attorney General MUKASEY. That is a matter for OPR to— 

Senator SCHUMER. What do you think? You are the ultimate authority here. 

Attorney General MUKASEY. I am not the ultimate authority 

here. I have not supplanted—I have not supplanted OPR, and I do 

not intend to. I intend to look at their report, and if it is in any 

way deficient, I— 

Senator SCHUMER. You do not think that given the allegations 

that have been made, serious allegations that have gotten scores of 

Democratic and Republican Attorneys General to ask that this case 

be re-examined, that Karl Rove should maybe not be interviewed 

here? 

Attorney General MUKASEY. I think there are avenues for conducting examinations other than the OPR investigation and other 

than my suggestion. And— 

Senator SCHUMER. Do you think someone in the Justice Department should ask Karl Rove whether he was involved, whether he 

did the things that are alleged, someone, somewhere? Or is there 

a possibility no one should ever ask him? 

Attorney General MUKASEY. I think that very much depends on 

what the facts are that are found by OPR, and I don’t know what 

they are going to be. 

Senator SCHUMER. I find these answers very disappointing. 

Chairman LEAHY. I think Senator Schumer’s concerns reflect 

some of the same concerns you have heard from—the same nature 

as the concerns you have heard from Senator Specter and myself, 

and they are concerns that have been expressed by a lot of people 

on this Committee. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman. 

Welcome, Attorney General Mukasey. 

Attorney General MUKASEY. Thank you. 

Senator WHITEHOUSE. In the 8 months you have been in office, 

have you had occasion to determine yet whether waterboarding is 

torture? 

Attorney General MUKASEY. No, because as I said, it has not 

been proposed to be returned to the program and it is not part of 

the program. 

Senator WHITEHOUSE. In that answer and answers you have 

given to Chairman Leahy and answers you have given to Senator 

Feinstein and answers you have recently given to Senator Schumer, I detect a very pronounced reluctance to look backward into 

the problems at the Department of Justice. You have assured us, 

for instance, that politics will be kept out of prosecutions under 

your watch going forward. But the effects of prosecutions of politics 

on past prosecutions are still very much alive and well for the subjects of those prosecutions. 

You have assured us that you have reviewed the OLC opinions 

regarding current programs. But past OLC opinions done in the poVerDate Nov 24 2008 14:38 Oct 19, 2009 Jkt 052690 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\52690.TXT SJUD1 PsN: CMORC
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liticized atmosphere of OLC at that time continue on the books as 

precedent to be counted in the future and now. 

You have stated that you have changed and remedied the politicized hiring policies of the Department of Justice, but people who 

were hired pursuant to the politicized hiring policies are still there. 

So for many of us on this Committee who care very deeply and, 

I hope you understand, sincerely about the integrity of the Department of Justice, it is highly inadequate to have this ‘‘only look 

going forward’’ approach that I detect. It is very important, I think, 

that we also be prepared to look backward, find out exactly what 

went wrong, and clean it up. Because if we cannot be assured that 

you are looking backward, we cannot be assured that it has been 

cleaned up. And if we cannot be assured that it has been cleaned 

up, we cannot be satisfied that the Department of Justice is back 

where it needs to be. 

Attorney General MUKASEY. You have raised a variety of subjects. I think with regard to interrogations, it is important to point 

out that the law has changed very much since the original memos 

were written. You have access to—and you, in particular, because 

your membership overlaps, as I understand it, with both the Intelligence Committee and this Committee. You have access to 

unredacted copies of the operative memoranda. So you know what 

was decided in the past, and you know what was decided today. 

Senator WHITEHOUSE. And I will tell you what I have seen. I 

have seen what I consider to be exaggerated and unreasonable 

claims of executive authority far beyond what reasonable debate 

would permit. I have seen dramatic lapses of very basic scholarship. These are not the subject of OPR investigation. There are 

public reports that Department leaders have said, ‘‘When people 

see these opinions, they will be ashamed of them.’’ And, repeatedly, 

we have seen opinions of OLC retracted as wrong or ill-advised, 

which is highly unusual. When you put all that stuff together, it 

is hard not to look back at OLC as, what I have said on the Senate 

floor, ‘‘George Bush’s Little Shop of Legal Horrors.’’ It is just not 

adequate to say, OK, well, it is going to be fine going forward and 

not look back and assure us that there has been a hard look back 

and that we are cleaning up OLC. It is a vitally important thing, 

and it is not just—Mr. Attorney General, it is not just about your 

personal integrity. I am not here to challenge that. I don’t challenge that. I have confidence that under your watch things will be 

done right. But as Jack Goldsmith pointed out in his book, there 

are, to use his phrase, ‘‘a number of practices OLC has developed 

over the years to help it avoid errors and to compensate for the fact 

that its opinions are not subject to the same critical scrutiny of adversary process and dissent that characterized the judiciary.’’ He 

goes on to say that OLC has not always followed these norms and 

practices during the past 6 years. It seems clear that had these 

norms and practices been followed, OLC would have avoided some 

and perhaps most of the mistakes that it has made. 

And I really think that we need to join on that issue because 

OLC is far too important to be allowed to continue with any question about its integrity. 

Attorney General MUKASEY. I think the fact that OLC opinions 

have been withdrawn is itself evidence that OLC is not simply opVerDate Nov 24 2008 14:38 Oct 19, 2009 Jkt 052690 PO 00000 Frm 00037 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\52690.TXT SJUD1 PsN: CMORC
34 

erating as somebody’s Shop of Horrors, and that when matters 

have to be re-examined, they are re-examined. 

Senator WHITEHOUSE. But what it does not answer is the question what went wrong at the time that allowed opinions that are 

so embarrassing that they do not meet basic standards of legal 

scholarship, that have to be withdrawn, that are described as a 

cause for shame to the Department, what went wrong to cause that 

to happen? That I think is a matter of legitimate inquiry, and I am 

concerned that you do not seem curious about that. 

Attorney General MUKASEY. I think one of the things that went 

wrong—I was not there at the time, but I think one of the things 

that went wrong at the time is the phenomenon described in the 

book that you mentioned, and that is what the author of that book 

described as a ‘‘cycle of aggressiveness and timidity’’ in the intelligence community in responding to requests for information. We 

have people demanding that people push the law to the limit, and 

then we have people saying don’t push the law to the limit and 

that you are subject to criticism and prosecution afterward, that 

that is a very unwise cycle. 

After September 11, there was an enormous amount of pressure 

to find the maximum that could be done. There were opinions prepared that were not up to the standard of OLC that were later 

withdrawn. But it is fair to say that the conclusions, the ultimate 

bottom-line conclusions of those opinions were unchanged, that is, 

that practices that were permitted under the laws that then existed 

were, in fact, permissible, although not for the reasons outlined in 

those opinions. And as to some of those matters, it is fair to say 

that things were explored and the subject of commentary and of 

consideration that were never adopted. And I think it is important 

to make sure that at a time like that, people come forward with 

whatever ideas they have, both good ideas and, perforce, bad ideas. 

The bad ideas hopefully do not get adopted. 

Senator WHITEHOUSE. But when they do, to me it is a signal that 

something is wrong. And when— 

Attorney General MUKASEY. I think the— 

Senator WHITEHOUSE. Let me give you my favorite example because it just drives me nuts. There is a Fifth Circuit Court of Appeals opinion called United States v. Lee in which the Fifth Circuit 

Court of Appeals reviewed conduct by a Texas sheriff and described 

it as ‘‘water torture.’’ I think they used the phrase ‘‘torture’’ seven 

times. And if you look back into the record of that case, you see 

that the water torture they are describing is waterboarding. There 

is just no ifs, ands, or buts about it. It is absolutely clear. 

It is a case that was prosecuted by the Department of Justice 

itself. The person who prosecuted it I understand is still in the Department. It is on the books of the United States Court of Appeals 

for the Fifth Circuit. It is a significant case. 

If this matter were being briefed to you as a judge and a party 

had missed that case, I think you would be justifiably angry and 

disappointed at the failure of legal scholarship that did not find the 

case. 

What concerns me is not that the OLC disagreed with that case. 

It is that in a 50-plus-page opinion they never found it; or they did 

find it and did not bother to discuss it. And they discussed very 

35 

similar cases where they could find an exception. Here where I do 

not think the exceptions they found in the other cases existed, 

something went badly, badly wrong over at OLC, not just people 

being a little energetic. And it can recur if we do not figure out 

what happened and prevent it from happening again. 

Attorney General MUKASEY. Senator, respectfully, I agree with 

your interest in thoroughness. I agree with your interest in balanced consideration. But the case to which you refer was prosecuted under the civil rights laws. It was not a case that dealt with 

whether a technique is or is not torture under the torture statutes. 

That case was properly prosecuted under the civil rights laws. It 

would be prosecuted today under any standard under the civil 

rights laws. That was not the issue. Indeed, the issue on appeal did 

not even concern the civil rights laws— 

Senator WHITEHOUSE. No, but when a United States Court of Appeals described a specific technique at issue as ‘‘torture,’’ isn’t that 

relevant to a decision? Do you really mean to come before this 

Committee and say that a court of appeals decision that describes 

the specific technique at issue before the Office of Legal Counsel 

as ‘‘torture’’ is not relevant to a discussion of whether it is torture 

under a different statute? 

Attorney General MUKASEY. In fairness, I don’t think that was 

the court of appeals’ choice of words. It was quoting from an indictment. It was quoting from the way the matter had been referred 

to below. 

Senator WHITEHOUSE. No, that is not accurate. 

Attorney General MUKASEY. I think it is. The— 

Senator WHITEHOUSE. My time is up. I apologize. I have gone 

over. 

Chairman LEAHY. That is all right. We will have a chance to go 

back. 

What I am going to do is recognize Senator Cardin now, and then 

we are going to take a 10-minute break as soon as Senator Cardin’s 

questions are completed. 

Senator CARDIN. Thank you, Mr. Chairman. 

Attorney General MUKASEY. Good morning. 

Senator CARDIN. Mr. Attorney General, it is nice to see you. 

Attorney General MUKASEY. Nice to see you. 

Senator CARDIN. I certainly want to concur in the comments of 

my colleagues about the prior problems within the Department of 

Justice and dealing with those in the most transparent way possible. A lot of the problems in the Department of Justice were basically as a result of failure to provide a public explanation. And I 

think the more transparent it is done, the better it will be for the 

Department of Justice. And I just want to urge you to do that. 

I want to talk about the issue you and I have talked about on 

many occasions, and that is the traditional role of the Department 

of Justice as it relates to civil rights issues. And we have had, I 

think, some very positive discussions about that. 

I was pleased to see in your written comments about your commitment in regards to the election process and to, as you put it, 

‘‘guarantee the integrity of our elections.’’ And I agree with you 

that protecting voting rights and combating fraud are two sides of 

the same coin, and I was pleased to hear your comments on that. 

36 

I want to ask you about your plans for the 2008 elections. There 

are some issues that can be anticipated that by an active Department of Justice we can avoid problems in 2008—issues such as 

having adequate voting machines and taking precautions to make 

sure that people know about the rights of voting. That can be done 

in advance. Some of the issues are more difficult when you have 

11th-hour types of material that we saw in Maryland and other 

States which are aimed at minority communities and give them 

fraudulent information are a little more difficult to try to avoid 

through your preliminary work, but by putting a spotlight on this 

concern, you can, I hope, discourage that type of conduct by certainly our major parties. 

So I want to ask you what specific programs are you planning 

to put in place so that we can try to have the widest possible participation in the 2008 elections and avoid any type of fraudulent activities. 

Attorney General MUKASEY. Every single district, every single 

district in this country, is going to have a specific designated Assistant U.S. Attorney and an investigator schooled in voting laws 

and enforcement of the voter access laws and other laws and is 

going to be alert to precisely the kind of practice that you identified, namely, misinformation, which as I have said in our private 

conversations is just as much fraud as any other kind of fraud. 

We also have monitors and inspectors who are going to focus on 

particular districts, districts that are the subject of consent decrees, 

districts that have been historically districts where problems have 

been encountered. And we are prepared to go into those districts 

to head off precisely the kind of practice that you have talked 

about. That is what we are going to do, and that is what we are 

training people to do at the National Advocacy Center and elsewhere. 

Senator CARDIN. I have read in your written testimony about the 

monitors, that they have already been—some have already been 

placed. I think that is an extremely important part of your strategy. I would just encourage you in your involvement in placing 

monitors to take a look at previous activities. I know you need to 

deal with the areas that are under court supervision, but also to 

take a look at using the monitors in areas that have recently 

shown some challenges, but also to share that information afterwards so that we can have a better understanding of the problems 

they are confronting to try to put in place the institutional protections against the newer types of frauds. 

Attorney General MUKASEY. I agree that we ought to publicize 

that information afterwards, and we are going to—we will have 

people looking for precisely the kind of conduct that you mentioned. 

Senator CARDIN. Let me just mention some of the issues that I 

think we will be confronted with in this election. If the primaries 

are any indication, there has been an unusually large number of 

young people who have gotten involved in this political process. 

When our college campuses return in September, my guess is that 

you are going to see more political activity than we have seen in 

prior elections. 

37 

What steps are you taking to make sure that students are able 

to fully participate in the political process, knowing full well that 

it may challenge some of our local election boards? 

Attorney General MUKASEY. We have tried to make sure that the 

statutes that require all State laws that provide services to people 

to permit or to encourage voter registration at the same time. The 

most famous of those is the motor-voter registration law, but there 

are other related statutes. And we are making sure in reaching out 

to State and locals that we make certain that they are doing that. 

Senator CARDIN. I would encourage you to put some attention to 

this, knowing that we could expect some significant increases in 

participation by students who may very well be eligible to participate in a particular State and may find some difficulty or obstacles 

that are placed in their way. 

Attorney General MUKASEY. We are also trying to make known 

telephone numbers and websites—students are particularly adept 

at use of the Internet and websites—that people can contact to 

make them aware of what their rights are and how to get access 

to the ballot. 

Senator CARDIN. And let me point out that, as you know, the 

management of our election system is such a hodgepodge nationally. It is a Federalist system so you have States and counties. 

Attorney General MUKASEY. The States are principally in charge. 

Senator CARDIN. Right. And the political oversight is different 

throughout the country. It really cries out for the Department of 

Justice to pay a little attention to this as it relates to legitimate 

Federal interest in protecting the right of people to vote. So I would 

just urge you to get a little bit more involved in that. 

There are other issues, obviously, involved in civil rights and 

housing and employment, and I will give you just the last 30 seconds I have if you wish to comment further as to the activities in 

the Civil Rights Division. 

Attorney General MUKASEY. I think we have been very active in 

the two areas you mentioned—housing and employment. We have 

tried to bring the kinds of actions that have the maximum amount 

of impact under Title VII. The Housing Division, which I recently 

visited, brings something on the order of 21 pattern and practice 

cases a year, has numerous test teams out protecting housing 

rights. We enforce these across the board, and I have made that 

particular Division—which has become really a defining Division 

for the Justice Department; it was created within the last 50 years, 

but it is probably the defining Division of the Justice Department— 

my particular focus. 

Senator CARDIN. Thank you. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

We will take a 5-minute break, and then a vote is coming up 

soon. We are going to have to figure out what to do from there, but 

let’s take that break. 

[Recess 11:29 a.m. to 11:35 a.m.] 

Chairman LEAHY. Thank you, Mr. Attorney General. As you 

know, we are keeping one eye on the clock because of the series of 

votes on FISA. 

38 

Attorney General MUKASEY. I understand you have other things 

to do. 

Chairman LEAHY. You will certainly want some of us to be there 

voting. 

Attorney General MUKASEY. Yes, please. 

Chairman LEAHY. Some of us. I am sure you agree with me that 

whichever way we vote, we should all be there to vote. 

Attorney General MUKASEY. I do. 

Chairman LEAHY. I know that, which kind of leads into my question. It sort of follows on what Senator Cardin was saying, and he 

has told me the horror stories of what went on in his own election 

in Maryland, one of the more progressive States. And you have 

talked about the—you mentioned the phone lines ready to handle 

calls. But receiving complaints is not quite enough to protect the 

right to vote. Once a complaint is received, what does the Department do to dispel erroneous information? We reported an important 

bill, the Deceptive Practices And Voter Intimidation Prevention Act 

of 2007, some months ago that would require everybody to be more 

proactive from the Department of Justice. The bill’s principal sponsor is Senator Obama. Obviously, I am concerned that his supporters not be precluded from voting, just as I am concerned that 

Senator McCain’s supporters not be precluded. There are 20 cosponsors on it, ranging from, I think it would be fair to say, from 

the most conservative Members of the Senate to the most liberal. 

So let me ask you this: If you have a place where photo identification is not required by State law, for example, in my State, how 

would the Justice Department correct the rumor that photo ID is 

required to vote in that jurisdiction? You know, these rumors start 

in jurisdictions that do not require it that you have to have photo 

identification. If such things start—and they have in the past—how 

do you respond to that? 

Attorney General MUKASEY. Senator, you correct that lie the 

same way that you correct any other lie, and that is, by pouring 

truth on it. If people are giving misinformation about what it takes 

to vote, about where the vote is, and about when the vote is, then 

you make absolutely certain that the State authorities are dispelling that rumor. There are public service announcements that could 

be made. There are all kinds of ways of dispelling information. 

Newspapers can be used. Announcements can be made. 

Chairman LEAHY. Let’s take something that is a little bit—gives 

you a little bit more of a heads-up. Latino American voters were 

sent letters in some precincts last time that they could not vote because they are immigrants. And these are citizens. Are you 

proactive enough that you can get letters out to those same people 

and— 

Attorney General MUKASEY. I cannot tell you as I sit here that 

we can get a letter to absolutely every one of those people. We can 

certainly work with organizations that are active in the Latino 

community, and would, to make certain that they could tell people 

in that community that what they were being told was absolutely 

false and that they had it on the word of the U.S. Government that 

it was false. That is fraudulent conduct. 

Chairman LEAHY. We are seeing in so many States during the 

primary season an unprecedented turnout. Even my little State of 

39 

Vermont on our town meeting day, which people do not vote that 

much unless there is a major bond issue or a local race, we had 

the highest number we have ever had. We have an excellent Secretary of State, Deb Markowitz, and we use paper ballots in most 

of the State, and she anticipated this and had ballots printed up. 

But we saw a number of places during the primary season where 

people ran out of ballots. 

Is there any kind of a proactive step to make sure that does not 

happen? 

Attorney General MUKASEY. Well, certainly people who are denied access to a ballot for any improper reason have the remedy 

under Federal law of a provisional ballot. We are trying to make 

sure, in consultation with State and local authorities, that they 

have got enough in the way of equipment and the proper equipment that that does not happen. Can I guarantee you in advance 

that it won’t? No. I can guarantee you that we are doing whatever 

we can to prevent or mitigate it. 

Chairman LEAHY. Well, as I look at, for example, another thing 

that happened last time—and I am using the past as prologue. 

Again, to use the example of my State, when 7 o’clock comes, the 

polls close. If there is a line out into the street, they usually put 

a sawhorse or a cone or something behind the last person. But how 

do we make sure that States allow that? We had instances of 

States where, whenever the polls closed, say 8 o’clock, the time 

comes, and they say, ‘‘OK, we are closed.’’ There might be 500 people in line. That would be a violation, would it not? 

Attorney General MUKASEY. As I sit here, I cannot tell you precisely, but if that is a violation of Federal law, then somebody 

ought to get a Federal judge to mandate the continued operation 

of that polling place. And I am sure that the corps of Assistant 

United States Attorneys who are being trained at the NAC would 

be available to do precisely that. 

Chairman LEAHY. Let me go to a different subject that is going 

to be the subject of a hearing here. We found in March that the 

passport files of Presidential candidates were breached by the State 

Department, a matter of some concern to everybody, whether a 

breach in IRS or the State Department or anything else. Senator 

Specter and I sent you a letter and asked you to take immediate 

action. It was Senator McCain’s, Senator Obama’s, and Senator 

Clinton’s passport files. Who knows who else. And we asked what 

preliminary steps you are taking to make sure whether these violated Federal laws, such as the Privacy Act. We wanted to make 

sure—you had said in your briefing you were waiting for a box of 

evidence. We sent this letter in March. Yesterday we received an 

answer. The matter has now been referred by the State Department’s IG; it is being handled by prosecutors in the Criminal Division. They found that—they did a sample of 150 high-profile Americans. They found that they had been searched a total of more than 

4,100 times in the past 5–1/2 years. And, of course, these have 

name, date, place of birth, Social Security numbers, and so on. We 

have widespread abuse in electronic records, 28,000 Government 

workers and contractors have access to it. 

What specific steps are you taking to make sure this stops? We 

are always asking Americans to give more and more of their perVerDate Nov 24 2008 14:38 Oct 19, 2009 Jkt 052690 PO 00000 Frm 00043 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\52690.TXT SJUD1 PsN: CMORC
40 

sonal data. You have to. I do. But we are told, don’t worry, it is 

being kept safely. Is somebody going to go to jail for this, is what 

I am leading up to. 

Attorney General MUKASEY. Senator, as you point out, we received yesterday a referral from the IG’s office at the State Department. That was referred to the Criminal Division. That case is 

going to be followed up on. And if somebody committed a crime, we 

are going to do our level best to make sure that somebody goes to 

jail, because that is a deterrent. It is the ultimate deterrent. It is 

one of the better deterrents. 

Chairman LEAHY. Well, we will keep in touch with that, and— 

Attorney General MUKASEY. We are going to follow and prosecute 

that case. It is a prosecutable case. 

Chairman LEAHY. Good. I mean, I want someone to go to jail. If 

they are snooping on Senator McCain’s passport or Senator 

Obama’s passport, I do not care who it is. The fact that they are 

doing this—or they are snooping on John Jones’ passport—they 

should not be allowed to do it. 

Senator Durbin. 

Senator DURBIN. Attorney General, thank you for being here. I 

am not going to replow the ground about Steven Bradbury’s 

memos. He has been lauded in this Committee, and yet there 

seems to be a reluctance to even review things that he has written. 

He is not going to be appointed, if that is still the administration’s 

intent, to a permanent position with the OLC. But I would like to 

ask you to help me understand what your plans are for the next 

few months. 

In less than 4 months, the American people will make an important decision in an election. In less than 6 months, there will be 

a new President. And I think that there are two courses available 

to you as you close out the remaining 6 months of your tenure as 

Attorney General: under one course, that you will initiate no major 

investigations, raise no important questions about the conduct of 

the Bush administration relative to the treatment of detainees; the 

other possibility is that you will follow what I think is the clear 

standard of the law within your own Department and initiate those 

investigations. 

Under the Attorney General Guidelines, which were signed by 

John Ashcroft in 2002 and remain in effect, a preliminary inquiry 

should be undertaken when there is information or an allegation 

which indicates the possibility of criminal activity and whose responsibility requires some further scrutiny beyond checking initial 

leads. This is a pretty low standard. 

Now, we have had reports, a variety of reports. Major General 

Antonio Taguba, who led the United States Army’s official investigation of Abu Ghraib, had this to say recently, and I quote: ‘‘The 

Commander in Chief and those under him authorized a systematic 

regime of torture.’’ These are Major General Taguba’s words, not 

mine. ‘‘There is no longer any doubt as to whether the current administration has committed war crimes,’’ the general said. ‘‘The 

only question that remains is whether those who ordered the use 

of torture will be held accountable.’’ 

And then, of course, the Justice Department’s Inspector General 

issued a troubling report about the FBI’s involvement in detainee 

41 

abuse and concluded, and I quote, ‘‘We found that the FBI did not 

respond to repeated requests from its agents in the military zones 

for guidance regarding detainee treatment.’’ 

I have written several letters—Senator Whitehouse joined me in 

those letters—to you and to others asking if you were going to investigate whether there was any criminal wrongdoing by members 

of this administration relative to the establishment of standards for 

the treatment of detainees and the use of torture. And the responses which I received have not been satisfying. You have said 

that no one who relied in good faith on the Department’s past advice should be subject to criminal investigation for actions taken in 

reliance on that advice. 

That was not what we suggested. Rather, we suggested that the 

Justice Department investigate and explore whether waterboarding 

was authorized and whether those who authorized it violated the 

law. 

Now, we have written to the Office of Professional Responsibility 

and asked them what are they doing, what are they looking into. 

And in February, they wrote back to us and said that they have 

a pending investigation, to be released—or at least a report to be 

released, depending on your approval of its release. 

I would like to give you this opportunity at this hearing to tell 

us: Will you follow Attorney General Ashcroft’s standard, which he 

signed and is still in effect, to investigate any wrongdoing relative 

to the treatment of detainees? Will you authorize the release of this 

Office of Professional Responsibility report? Can we expect in the 

last 6 months of this administration that you will step away from 

some of the things that have occurred in the past and make a clear 

break and initiate this investigation? 

Attorney General MUKASEY. You have asked a variety of questions and made a variety of statements about a variety of situations, and it is hard to sit and unpack them all. But the treatment 

of detainees was the subject of at least a dozen or more investigations at the Department of Defense, which has principal custody of 

them, as you know. Many of those investigations resulted in not 

only discipline but in a prosecution by court-martial of people who 

were involved in that activity. 

So far as the OIG report with respect to the conduct of the FBI, 

it recommended no criminal reference with regard to anything that 

any FBI agent did and, indeed, pointed out that one of the investigations that was conducted by the Department of Defense came 

in response to reports received from the FBI. 

The FBI’s role there, as I read the report, was a positive one, not 

a negative one. There were people who responded and who did 

what they should have done. And that is what I took away from 

that report. 

Senator DURBIN. What about the CIA or civilian or political appointees who authorized the conduct? 

Attorney General MUKASEY. Any CIA agent who acted in goodfaith reliance on an opinion by the Department of Justice that his 

or her conduct was lawful cannot and should not be prosecuted for 

the very simple reason that if they are, then any opinion by the 

Department of Justice to anybody on the front lines is totally and 

completely useless. 

42 

Senator DURBIN. So let’s take it to the next step. What about 

those at the Department who authorized that conduct, which has 

now been found to be wrong? 

Attorney General MUKASEY. It is in essence the same answer. It 

refers back— 

Senator DURBIN. Who is in charge if it is the same answer? At 

some point someone has to be held accountable. 

Attorney General MUKASEY. It is the same answer. It is the answer that was really given in Jack Goldsmith’s book, and that is 

that there is a cycle of demand for aggressive opinions and then a 

reaction to that. I think what lawyers have to do is adhere to the 

law and not concern themselves with what might be politically acceptable later on. And if we go after them and prosecute them, 

then that is exactly what they are going to be concerned with. They 

ought to— 

Senator DURBIN. May I suggest the standard is legally acceptable. Isn’t that what Attorney General Ashcroft’s standard is here, 

legally not politically acceptable? 

Attorney General MUKASEY. That remains the standard. That always was the standard. 

Senator DURBIN. And isn’t that your responsibility to enforce? 

Attorney General MUKASEY. It was, and it is, and I do. 

Senator DURBIN. And do you believe that—well, let me ask you 

this: Are you going to release this report, which Mr. Jarrett has referred to in February, the results of their investigation of the Office 

of Professional Responsibility? Will you approve the release of that 

report? 

Attorney General MUKASEY. I am not going to approve the release of an OPR report with respect to the conduct of professionals. 

If professionals have to be disciplined, they can be disciplined in a 

way that is either private or public, depending on the nature of 

their violation. Again— 

Senator DURBIN. Mr. Chairman, I would like to ask that this letter be part of the record, and I would like to quote from it. 

Chairman LEAHY. Without objection. 

Senator DURBIN. Marshall Jarrett, counsel from the Office of Professional Responsibility, February 18, 2008, and I quote: ‘‘Upon 

completion of our investigation, we will provide you with our results.’’ This is directed to Senator Whitehouse and myself. ‘‘Moreover, because of the significant public interest in this matter, OPR 

will consider releasing to Congress and the public a non-classified 

summary of our final report.’’ 

Are you saying that you will not approve the release of that report? 

Attorney General MUKASEY. If OPR wants it released, it will be 

released. 

Senator DURBIN. So you give your approval of that release? 

Attorney General MUKASEY. If OPR wants it released, it will be 

released. 

Senator DURBIN. That is progress. 

I yield. Thank you, Mr. Chairman. 

Chairman LEAHY. Senator Biden. 

Senator BIDEN. Thank you very much. 

43 

General, let’s say in the general territory here, obviously, the Supreme Court’s decision several weeks ago on Guantanamo Bay and 

habeas corpus received a great deal of coverage and publicity and 

conversation and debate. What steps has the Department made to 

respond to and implement the Court’s decision? 

Attorney General MUKASEY. I am sorry. I did not hear the— 

Senator BIDEN. I beg your pardon. I will speak more clearly. The 

Supreme Court’s decision of several weeks ago relating to the right 

of habeas corpus of those detained at Guantanamo Bay, what steps 

has the Department made to respond to and implement the Court’s 

decision? 

Attorney General MUKASEY. The Department has been working 

with the district court in the District of Columbia to arrange an orderly way of determining when habeas petitions will be heard, how 

they will be heard, what evidence will be received, and how it will 

be received. All of— 

Senator BIDEN. Is that in the form of a negotiation with the court 

or—not negotiation. I mean, I am not trying to be confrontational. 

I am just trying to understand. Is it in a sense a mechanical thing, 

trying to figure out how to manage this? 

Attorney General MUKASEY. I am not certain what you mean by 

‘‘mechanical,’’ but, yes, it is figuring out how to manage it. It is figuring out what evidence can be received, what the practical considerations are. That word appeared throughout the Boumediene decision; that is, that the decision was to be made practically given 

what was possible. 

Senator BIDEN. Right, yes. 

Attorney General MUKASEY. Given what evidence was available. 

Senator BIDEN. All I am trying to get at is in— 

Attorney General MUKASEY. We are in— 

Senator BIDEN [continuing]. Implementing the decision, when do 

you anticipate you will come up with, for lack of a better phrase, 

your regime-implemented decision? 

Attorney General MUKASEY. We are in discussions with the court 

and with opposing counsel. That depends on two people who are 

not us. 

Senator BIDEN. Okay. Let me switch areas here and go back to 

aid to local law enforcement, if I may, and I realize, you know, we 

are bouncing you all over the place. It is a big Department, so 

maybe you need to call on—you do not necessarily have to, but if 

you need to call on staff for any of the detail here, I understand. 

The Violent Crime Task Force, as DOJ currently uses that 

phrase, is a repackaging of the funding that used to go to State and 

local governments under the Byrne grants, the JAG grants, and 

the COPS program. That was where the Violent Crime Task Forces 

were. That was where, you know, the Byrne grants and the JAG 

grants were all—so you have repackaged the funding to State and 

locals under those three programs. DOJ requested in the President’s 2009 budget $200 million for 

Violent Crime Task Forces—and I am not using the word ‘‘repackaging’’ in a value judgment, but reordering how you help—repackaging how you help local law enforcement. They have requested in 

the 2009 budget $200 million for the Violent Crime task Forces, 

and you also requested $200 million for another repackaging which 

44 

you call ‘‘The Byrne Public Safety and Protection Program.’’ The 

bottom line is that direct support, as I read your budget, to State 

and local law enforcement is about $400 million under what used 

to be Byrne, COPS, and JAG. 

Now, when—and this is not—this is a little history here. When 

the administration came into office, the total amount of support 

from the Federal Government to State and local law enforcement 

was about $2.1 billion. That was under the COPS program, the 

Byrne grants, and the JAG programs. Under the successor DOJ 

programs, you calling the Violent Crime Task Forces and the Byrne 

Public Safety and Protection rubric, the Department has requested 

a total of $404 million this year. Now, that is a 81-percent cut 

under this administration. And it is a cut of, less than that, but 

about $500 million just from your last year’s budget. Last year 

overall funding for State and local law enforcement was $908 million for Byrne, JAG, and COPS. Now it is $404 million. 

Is that because you think—I mean, can you give me the reason 

why you have cut in half in a year the amount of local law enforcement funding that is going—that you are proposing go to the 

States? 

Attorney General MUKASEY. Senator, your numbers, first of all, 

don’t count grants for child safety and juvenile justice. They don’t 

count grants for violence against women. 

Senator BIDEN. Well, I did not count those either. I did not count 

those in the numbers. The $908 million did not include violence 

against women or juvenile justice funding. They have always been 

separate. They have been a separate account. They have never 

been part of Byrne. They have never been part of JAG. They have 

never been part of the COPS program. I am comparing apples and 

apples. 

Attorney General MUKASEY. What we found is that targeted 

grants that are targeted not only at particular areas where crime 

has spiked, but also at areas where we can focus our own activities 

in conjunction with State and locals are the most effective. And 

that is the way— 

Senator BIDEN. But you need half—well, Byrne grants were targeted, the COPS program was targeted, as well as the JAG program was targeted. And last year, your targeting amounted to $908 

million. This year, under a slightly different targeting system, you 

are $404 million. 

Attorney General MUKASEY. The COPS program was never 

meant to be a permanent support program. What it was meant to 

do was to give temporary grants to State and local authorities to 

enhance their police forces. 

Senator BIDEN. Wrong. I wrote the COPS program with my own 

little paw. The COPS program was intended to kick-start a community policing program nationwide, and the intention was, if it 

worked, it would be reauthorized, which it was on two occasions. 

The decision of this administration was to no longer reauthorize 

that program. I understand that. That is their judgment. But it 

was not—and look at the language when I wrote the bill and when 

it passed on the floor—that if it worked, which it did, the intention 

of the Congress was that it would be reauthorized. It was reauthorized twice. 

45 

Attorney General MUKASEY. Obviously, I take your correction. 

You wrote the legislation. My information was that that was supposed to attract further State and local funding for local police— 

Senator BIDEN. It was. 

Attorney General MUKASEY [continuing]. That had been initially 

funded federally. 

Senator BIDEN. It was, and then it was, if it worked, it would 

continue because, you know, that old expression Ronald Reagan 

used to use: ‘‘If it ain’t broke, don’t fix it.’’ It was not broke. Violent 

crime came down under this Act. I do not want to argue the COPS 

program per se. I am trying to get at the rationale—and my time 

is up here—the rationale why in 1 year the targeted programs, 

however you characterize them, comparing apples and apples, 

those programs targeted to Violent Crime Task Force was done 

under the COPS bill. The JAG program—anyway, so why is 

there—why the cut in 1 year of about $500 million? 

Attorney General MUKASEY. The fact is that we have had a 1.7- 

percent reduction in violent crime. We have a slightly more than 

2-percent reduction in property crime. We have had spikes in particular areas. We have tried to focus our activities in those particular areas where— 

Senator BIDEN. So you just don’t think that much is needed. Is 

that the honest answer? 

Attorney General MUKASEY. We have tried to target the funds 

that we have. 

Senator BIDEN. Well, fund—Okay. Well, Okay. There are still 

about 17,000 murders a year. You know, I find that—you know, we 

have really dumbed down the definition of ‘‘success.’’ Crime is 

down, that is true, 1.6 percent, I think. But, anyway, my time is 

up. I yield. There is about 10 minutes left in the vote, so what I 

suggest is you use the rest of the time, adjourn, by that time, Senator Leahy will be back. 

Senator WHITEHOUSE. We may recess briefly. 

Senator BIDEN. Yes, you may have to recess, but it will only be 

a minute or two, General, if there was a hiatus here. 

I yield to my colleague. 

Senator WHITEHOUSE [presiding]. I appreciate it. Thank you, 

Chairman. 

Attorney General, I would like to talk a little bit with you about 

executive orders. Executive orders very often govern particularly 

important matters. In my role on the Intelligence and Judiciary 

Committees, I have been obviously exposed to Executive Order 

12333, which is the one that purported to protect Americans when 

they traveled overseas from being wiretapped by their Government. 

That one is about to be overtaken by the FISA bill whose vote, 

again, is very shortly. 

Another one is 13440, which is the executive order that is intended to establish minimum standards for the appropriate and 

lawful treatment of alien detainees consistent with the Geneva 

Conventions. This executive order has been criticized by the Judge 

Advocates General for all branches of the armed services, but it is 

the executive order on which the administration relies in indicating 

that it has ‘‘clear rules,’’ I think is the administration’s phrase, for 

detainee treatment. And the White House has said that interrogaVerDate Nov 24 2008 14:38 Oct 19, 2009 Jkt 052690 PO 00000 Frm 00049 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\52690.TXT SJUD1 PsN: CMORC
46 

tions must be done ‘‘with safeguards and under the rule of law,’’ 

which I view as being in part this executive order. 

Now, you and I have had an exchange about executive orders in 

your nomination. You indicated should an executive order apply to 

the President and he determines that the order should be modified, 

the appropriate course would be for him to issue a new order or 

amend the prior order. And I think that is an accurate statement. 

I happen to agree with that. 

What concerns me, to take us back to our favorite place, OLC 

again, is that during my course of my review of the OLC opinions, 

I came across the following opinion of the Department of Justice 

by OLC: An executive order cannot limit a President. There is no 

constitutional requirement for a President to issue a new executive 

order whenever he wishes to depart from the terms of a previous 

executive order. Rather than violate an executive order, the President has instead modified or waived it. 

Is that rule still in force at the Department? And if that is the 

case, can the President disregard Executive Order 13440 governing 

the treatment of detainees without amendment or information to 

Congress or the American people? 

Attorney General MUKASEY. I think it is important or at least 

useful to analyze what the nature is of an executive order. An executive order is a direction by the President that the executive conduct itself in a certain way. The President is free to change that 

order at his view of how the executive should behave and direct 

that it— 

Senator WHITEHOUSE. Anytime he wants, and there is a procedure for doing so. 

Attorney General MUKASEY. And direct that it behave differently. 

There are— 

Senator WHITEHOUSE. The question is: Can he leave an executive 

order in place and act in violation or derogation of it without ever 

going back and changing it just because he is the President? 

Attorney General MUKASEY. It is not a violation of it. It is his 

order or an executive order to start with. I can imagine circumstances in which it would be not only possible but advisable for 

a President not to change an executive order when he finds out information that directs the Government should go in another direction. For example, if an executive order directed that a particular 

country be treated as not violative of certain norms and, therefore, 

eligible for certain privileges, and he came by classified information 

that told him otherwise, he would be obligated, it seems to me, to 

reimpose those restrictions on that country. It would be inadvisable 

for him to file an amended executive order and put them on notice 

that he had come into possession of that classified information. 

Senator WHITEHOUSE. Ever? 

Attorney General MUKASEY. Beg your pardon? 

Senator WHITEHOUSE. Ever. 

Attorney General MUKASEY. You say ‘‘ever? ’’ 

Senator WHITEHOUSE. Ever. 

Attorney General MUKASEY. It would certainly be inadvisable 

for— 

47 

Senator WHITEHOUSE. I can understand there are timing considerations involved here. Something could happen rather suddenly, 

and you would have to go through the process— 

Attorney General MUKASEY. If there comes a time—if there 

comes a time— 

Senator WHITEHOUSE. Ultimately— 

Attorney General MUKASEY [continuing.] When it is advisable 

and possible, then it is advisable and possible. It may never be possible. 

Senator WHITEHOUSE. So I conclude from your answer that the 

existence of Executive Order 13440 can give us no assurance that 

the President is actually complying with it. 

Attorney General MUKASEY. I think the existence of Executive 

Order 13440 suggests that the President is complying with it. 

Senator WHITEHOUSE. Suggests, but can give us no assurance. 

Attorney General MUKASEY. The President is—having issued an 

order, is free to issue contrary directions. 

Senator WHITEHOUSE. So the answer to my question is yes, it can 

give us no assurance that the President is following it. 

Attorney General MUKASEY. I think your question suggests a 

level of uncertainty that, with due respect, I think is unwarranted 

in the situation that you mention. 

Senator WHITEHOUSE. Well, a lot of things that we were concerned were unwarranted appear to have become true. So here we 

are. But I think it is important to pin it down because the question 

of how we treat detainees is significant, and if 13440 does not, in 

fact, protect us, then it is important for us to know in Congress. 

It is one of the reasons I think the FISA statute is so important, 

that it repairs the limit of 12333. 

There are 3 minutes left on the vote, so I have to go so I can get 

there. I know that Chairman Leahy is on his way back and wishes 

to be here, so I apologize for this interruption, Attorney General, 

but the Committee will stand in recess until the return of the 

Chairman, which should only be a few moments. We are in recess. 

[Recess at 12:07 p.m., to 12:14 p.m.] 

Chairman LEAHY. Only because of the time when the Attorney 

General is walking back to his seat, I would just note that whether 

somebody is for or against the war in Iraq, maybe we should all 

agree that the history of contractor abuse in Iraq has been a disgrace for this Nation. We saw the degrading and inhumane techniques used by contract interrogators on detainees at Abu Ghraib 

prison, something that hurt us throughout the world; the unjustified killings of 17 unarmed civilians by contract security guards in 

Nisour Square in Baghdad; sexual assault by contractors of U.S. 

women working in Iraq. This worries me a great deal, but I have 

not found any of them held accountable under the law by the Justice Department. There have been 25 cases of detainee abuse in 

Iraq that have been referred for prosecution. The Justice Department has not brought charges in a single case. Ten months since 

the Nisour Square killings, no action, even though the FBI concluded the shootings were unjustified. 

Several women working in Iraq have testified before Congress 

that they were raped or assaulted by U.S. contractors, but nobody 

has done anything. And there have been no criminal prosecutions 

48 

in U.S. courts on these cases from Iraq of Americans breaking the 

law. 

Why has the Justice Department not taken stronger action to 

hold contractors in Iraq accountable under U.S. law? 

Attorney General MUKASEY. I think the Justice Department has 

taken and is taking action with respect to contractor abuse in Iraq. 

Chairman LEAHY. Has anybody been convicted? 

Attorney General MUKASEY. Can I get my notes? 

Chairman LEAHY. Sure. 

Attorney General MUKASEY. Thanks. 

[Pause.] 

Chairman LEAHY. I am not aware of anybody who has been convicted. 

Attorney General MUKASEY. It is my understanding that there 

have been 13 prosecutions and 8 convictions. That said, there have 

been— 

Chairman LEAHY. Contractor abuses? 

Attorney General MUKASEY. Alleged crimes by employees of contract personnel in Iraq based on referrals from the Department of 

Defense or the Department of State. 

Chairman LEAHY. Can you give me a list of those? 

Attorney General MUKASEY. I will provide you with a list of 

those. 

Chairman LEAHY. Thank you. 

Attorney General MUKASEY. As far as particular cases that you 

referred to, we generally do not acknowledge the existence of pending investigations, but we have acknowledged that the September 

16, 2007, shooting in Nisour Square is the subject of an investigation— 

Chairman LEAHY. And you will let us know of which ones have 

actually had convictions? 

Attorney General MUKASEY. Yes. Yes, I will. And I just want to 

point out one other thing, if I may. It is enormously difficult, particularly when we rely on initial investigations by the Department 

of State and by the Department of Defense and we have FBI 

agents trying to conduct investigations in a war zone, to bring 

criminal prosecutions that pass the test of an American court. 

Chairman LEAHY. I understand it is always difficult, but this 

country has always been able to do it. In fact, Senator Grassley 

and I introduced a bill to extend the statute of limitations for 

criminal fraud in war zones like Iraq, something we have done in 

every other war. Do you support that bill? 

Attorney General MUKASEY. If statutes of limitation are what are 

interfering with our ability to bring prosecutable cases, I am in 

favor of extending them. And, again, we have brought successful 

prosecutions. Some cases involve allegations that do not wash out, 

and there is nothing we can do. 

Chairman LEAHY. Well, I understand that. I spent enough years 

as a prosecutor to know that not every accusation is going to be 

a criminal matter. But we should expand the Military 

Extraterritorial Jurisdiction Act, MEJA. I hope you would support 

that. 

I also wrote to you several months ago—and here is something 

that can be done easily—with other Senators about a Board of ImVerDate Nov 24 2008 14:38 Oct 19, 2009 Jkt 052690 PO 00000 Frm 00052 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\52690.TXT SJUD1 PsN: CMORC
49 

migration Appeals matter of A.T. It is a woman seeking asylum in 

this country based on a fear of continuing persecution arising from 

the brutal practice of female genital mutilation, FGM. I thought we 

had understood, had an understanding years ago, that this country 

would stand on the rights of human rights on this. I got your reply 

yesterday. The BIA denied the asylum seeker’s claim, said she had 

already been mutilated, so how could she be further persecuted? 

That rationale has been criticized by the Second Circuit and others. 

You have the authority to overrule the Board of Immigration Appeals. Female genital mutilation is widely regarded as a serious 

human rights violation. Why not just use your authority and overrule them on this issue? Most people cannot understand what the 

heck they were thinking. 

Attorney General MUKASEY. That is a ghastly practice. That is 

an absolutely ghastly practice. I am going to take a look at that 

case. I cannot promise you now that I am going to certify it, but 

I am going to take a look at that case. 

Chairman LEAHY. But you could, because of your authority, you 

could once and for all make it very clear where we are on this, and 

I would urge you to. 

Attorney General MUKASEY. I promise you that I will consider it, 

and I promise you that I view that practice as ghastly. 

Chairman LEAHY. Thank you. And let me know— 

Attorney General MUKASEY. And that is going to inform that consideration. 

Chairman LEAHY. I almost hate to get into the question of Steven Hatfill. I have refrained from discussing this. I have refused 

to discuss it with the press. I have told them that some aspects of 

it I was aware of were classified, so, of course, I could not discuss 

it. But also considering the fact that my life was threatened by an 

anthrax letter, two people died who touched the letter addressed to 

me that I was supposed to open, I am somewhat concerned. What 

happened? We are paying millions of dollars, the indication being 

that the guy who committed the crime went free. 

Attorney General MUKASEY. Well, I don’t understand ‘‘the guy 

who committed the crime’’ to have gone free. What I do understand 

is that— 

Chairman LEAHY. Nobody has been convicted. 

Attorney General MUKASEY. Not yet. 

Chairman LEAHY. And five people are dead. 

Attorney General MUKASEY. Yes. 

Chairman LEAHY. Hundreds of millions of dollars have been 

spent. 

Attorney General MUKASEY. That case is under active investigation, and I need to be very careful about what I say. 

Chairman LEAHY. We will not go any further. As I say, I feel 

some reluctance because I was one of the targets. But I got to tell 

you what the families of the people who died went through, what 

the families of the people who were crippled went through, even 

what my family went through, a lot of people are concerned. And 

I will not say more because we are in open session, but I think you 

and I should probably have a private talk about this sometime. 

Attorney General MUKASEY. That is fine. 

50 

Chairman LEAHY. And we will adjourn with that. I will put my 

final statement in the record. 

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

Chairman LEAHY. I am concerned about the answers on 

waterboarding and secret memos when you say it is not necessarily 

before you now. I am concerned that OLC opinions, whether you 

are relying on them today or not, serve as precedent in the future. 

You said, when Senator Durbin and I asked you on January 30th, 

‘‘I think those opinions would be considered principally in light of 

whether they relate to things that are current or not, but I will review them.’’ Today you said you have not and will not. I would 

hope you might reconsider that. 

You have, I think, one of the most important jobs in all of Government. Just because you are the one person—the one person— 

who has the final say that the laws are going to apply to everybody 

in this Nation, and I appreciate that you went from a very comfortable life to an around-the-clock life to do that. But this whole 

Nation relies on you. It is not a Democratic or Republican issue. 

So I would hope that after the hearing today, if there are some 

things you may want to reconsider, please let us know. 

Attorney General MUKASEY. I understand that, and I want to tell 

you, as I told you yesterday, that I am grateful for the opportunity 

to be here, notwithstanding that we might have some disagreements about some things, and make sure that I take the responsibilities that you eloquently describe seriously, and that it brings 

me up to the standard that I ought to adhere to, or as close to it 

as I can get. Thank you very much for that chance. 

Chairman LEAHY. And I appreciate the private conversations you 

and I have had, and I appreciate your availability always to be 

there for those. 

Attorney General MUKASEY. Thank you. 

Chairman LEAHY. With that, we will stand in recess. 

[Whereupon, at 12:24 p.m., the Committee was adjourned.] 

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

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Æ 


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