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S. HRG. 110–640 

CONFIRMATION HEARING ON THE NOMINATION 

OF MARK R. FILIP TO BE DEPUTY ATTORNEY 

GENERAL 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

DECEMBER 19, 2007 

Serial No. J–110–71 

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 .......................................................................................... 137 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 4 

PRESENTERS 

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

Mark R. Filip, of Illinois, Nominee to be Deputy Attorney General, Department of Justice ..................................................................................................... 61 

Kirk, Mark Steven, a U.S. Representative from the State of Illinois presenting 

Mark R. Filip, of Illinois, Nominee to be Deputy Attorney General, Department of Justice ..................................................................................................... 7 

STATEMENT OF THE NOMINEE 

Filip, Mark R., of Illinois, Nominee to be Deputy Attorney General, Department of Justice ..................................................................................................... 9 

Questionnaire .................................................................................................... 11 

QUESTIONS AND ANSWERS 

Responses of Mark R. Filip to questions submitted by Senators Durbin and 

Kennedy ................................................................................................................ 79 

SUBMISSIONS FOR THE RECORD 

chicagotribune.com, December 18, 2007, editorial ................................................ 132 

Kirk, Mark Steven, a U.S. Representative from the State of Illinois presenting 

Mark R. Filip, of Illinois, Nominee to be Deputy Attorney General, Department of Justice ..................................................................................................... 134 

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

25, 2007, letter to Mr. Fielding ........................................................................... 140 

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

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

10, 2007 letter to Attorney General Mukasey and his response ...................... 143 

Specific investigations by Congress over DOJ on pending matters ..................... 147 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania, December 17, 2007, letter to Judge Filip ...................................................................... 149 

Taylor, Loren R., President & CEO, University of Illinois Alumni Association, 

Urbana, Illinois, letter ......................................................................................... 151 

Wainstein, Kenneth L., Assistant Attorney General, National Security Division, Department of Justice, letter ..................................................................... 152 

washingtonpost.com, December 19, 2007, editorial .............................................. 153 

(1) 

NOMINATION OF MARK R. FILIP, OF ILLINOIS, 

TO BE DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE 

WEDNESDAY, DECEMBER 19, 2007 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC 

The Committee met, Pursuant to notice, at 10:11 a.m., in room 

226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. 

Present: Senators Kennedy, Durbin, Cardin, Whitehouse, Specter, Hatch, and Sessions. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning, and I appreciate everybody 

being here. I am sorry to say I am a little bit late, and it is my 

fault. Everybody else, Senator Kennedy, Senator Cardin, Senator 

Specter, and Senator Hatch, were already here. We were running 

a tad late last night, but I apologize to you. But we also had a 

chance, several of us, to meet the judge and his wonderful family. 

The reason this position is so important and I wanted to be here 

is that in the absence of the Attorney General, of course, as we all 

know, the Deputy acts as the Attorney General, and we have to restore the Department’s independence and credibility that has been 

deterred by some in the administration, unfortunately. 

The administration has known since at least May 14 of this year, 

when Mr. McNulty announced that he was resigning, and should 

have known for weeks before, that there was going to be a vacancy 

in the position we are going to fill. 

I welcome Senator Whitehouse here, too. 

But even after the former Deputy announced his resignation and 

resigned months later, I had hoped that the administration would 

work with the Senate to fill this position. They did not. 

Now, Paul McNulty was one of many high-ranking Department 

officials, along with former Attorney General Gonzales, who resigned during the Committee’s investigation into the firing of wellperforming United States Attorneys who were fired for apparently 

partisan and political reasons. Those firings and our investigation 

point to political operatives from the White House interfering with 

and corrupting the Department’s law enforcement functions for 

partisan and political purposes. So the nomination of Judge Filip 

comes during a crisis of leadership that has done more than take 

2 

a heavy toll on the Department’s morale and tradition of independence—a morale and tradition of independence, I might say, that 

has always in my experience existed with both Republican and 

Democratic administrations. But because of what happened, it has 

shaken the confidence of the American people and the Congress 

that the Department will uphold the bedrock principle—deeply embedded in our laws and our values—that no one, not even the 

President, is above the law. 

I announced that we would hold this hearing today, before Congress adjourns for the year immediately upon receiving this nomination from the White House and the necessary background materials and would move as expeditiously as possible. We will want to 

know whether this appointment will help restore the independence 

of the Department of Justice and strengthen the rule of law. 

Before we came in here, when I was a young law student I was 

recruited by a former Attorney General who told me how the 

Criminal Division and the various Divisions are kept free of any interference from the White House, and he would not allow any interference from the White House. And I fully believed him. I wanted to go back home to Vermont to practice, so I declined the invitation from then-Attorney General Robert Kennedy. 

But every time we seem to reach a new low in this administration’s flaunting of the rule of law and constitutional limits on executive power, we learn some startling new revelations about the extent to which some will go to avoid accountability and undermine 

oversight and stonewall the truth. 

Two weeks ago, we learned that the CIA destroyed videotapes of 

detainee interrogations. Just this morning, in a regrettably familiar 

pattern, we learned that the involvement of senior administration 

officials seems to have been much more significant than it appeared from their initial denials. The revelations are leading to additional investigations by Congress and the courts and have raised 

questions by both Republicans and Democrats in the House and the 

Senate. 

Now, as the Ranking Member of this Committee from 2001 

through 2006, I was not informed of the existence of the videotapes 

or of their destruction. I do not believe the Republican Chairmen 

at that time were either. I have repeatedly sought information 

about the administration’s interrogations of detainees, including 

during the consideration of the Mukasey nomination to be Attorney 

General and in my October 25, 2007, letter to the White House 

counsel. And, without objection, those will be made part of the 

record. 

Early last week I sent a bipartisan letter with Senator Specter 

to the Attorney General seeking information about the involvement 

of the Department of Justice with those matters before the public 

revelation of the tapes’ destruction and how the Attorney General 

intended to determine whether to appoint a special counsel to conduct the investigation and potential prosecutions for obstruction of 

justice and obstruction of Congress. Regrettably, the reply we received evidences none of the commitment to work with this Committee that we heard during the Attorney General’s recent confirmation hearing. The response actually showed no appreciation 

3 

for the oversight role of the Congress, and, without objection, those 

letters will be made part of the record. 

Since then I have seen that the Department has also demanded 

that the Intelligence Committees of the Congress cease their independent investigations announced by Democrats and Republicans 

and that the courts not proceed to determine whether this administration has violated court orders or been less than candid in court 

proceedings. They told the courts, don’t inquire about this, told the 

Congress not to inquire about this. Well, that does not restore the 

Department’s credibility. It appears to be an effort to prevent accountability and undermine checks and balances. 

U.S. District Judge Henry Kennedy yesterday rejected the administration’s demands, ordering the administration to appear in 

court this week to determine whether it violated a court order, the 

2005 order that it was to preserve all evidence. 

Now, Senator Specter and I are former prosecutors. There are 

other former prosecutors on this Committee in both parties. We 

were not asking the Attorney General to prejudice a criminal investigation. We were not asking to intervene in it. Rather, we and this 

Committee have constitutional responsibilities we need to fulfill. I 

think those duties are entitled to respect, as well. 

My fear is that the pattern of unaccountability and excuse will 

continue. The administration has shown a proclivity to paper over 

misconduct with legal opinions from the Department of Justice. We 

know about the infamous withdrawn Bybee memo on torture. It 

turned out to be wrong. 

In the words of Jack Goldsmith, a former head of the Office of 

Legal Counsel, who discovered this legal mess of extreme opinion, 

they have an ‘‘unusual lack of care and sobriety in their legal analysis,’’ they rest on ‘‘cursory and one-sided legal arguments that 

failed to consider Congress’ competing wartime constitutional authorities, or the many Supreme Court decisions potentially in tension,’’ and ‘‘could be interpreted as if they were designed to confer 

immunity for bad acts.’’ That was from a conservative Republican. 

As we recently learned not from the administration but from the 

New York Times, where we get most of our information when the— 

fortunately, there are some in the administration who continue to 

leak to the press and give them the information the administration 

will not give to the proper committees in Congress. 

The Department of Justice, soon after the last Attorney General—not the current one but the former one—took over, the Department of Justice secretly endorsed and reinstated combinations 

of the harshest interrogation tactics as legal. They apparently gave 

legal approval to brutal interrogation techniques, including 

waterboarding. Former Deputy Attorney General James Comey 

predicted that the Department would end up being ‘‘ashamed’’ of 

such actions when the public learned of them. Boy, was he right. 

Now, whether Judge Mark Filip will follow the example of integrity and independence of others like Elliot Richardson and William 

Ruckelshaus, who resigned or were fired rather than interfere with 

the investigation of wrongdoing of the Nixon administration, is a 

critical question. Law enforcement officials have to enforce the law 

without fear or favor from whoever is in the White House, whether 

it is a Democratic President or a Republican President. And we 

4 

have been reminded all too recently by the Gonzales Justice Department what happens when the rule of law plays second fiddle 

to a President’s policy agenda or the partisan desires of political 

operatives. 

I want to be confident that this Deputy Attorney General will be 

independent in enforcing the rule of law on crucial issues like the 

destruction of the CIA tapes and the legal cover given to torture. 

A newly independent Justice Department has to reexamine these 

issues. I want to be assured that he does not envision a system 

where a President’s overbroad and invalid claims of executive privilege cannot be tested in a court of law. 

I hope that he reassures us he understands that the duty of the 

Deputy Attorney General is to uphold the Constitution and the rule 

of law—not to work to circumvent it. Both the President and our 

great Nation are best served by a Justice Department that provides 

sound advice and takes responsible action, without regard to political considerations—not one that develops legalistic loopholes to 

serve the ends of a particular administration. 

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

I yield to the distinguished Ranking Member, and then we will 

hear from Congressman Kirk, who is from the judge’s congressional 

district. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. There is no doubt that the Department of Justice is an agency of great importance to the United States, second 

only to the Department of Defense. And there is no doubt that 

there is an urgent need to have that office reorganized from what 

has been the practice for the past several years. 

I am pleased to see the President submit the name of Judge 

Mark Filip to this Committee. He comes to this Committee with an 

extraordinary record: magna cum laude—summa cum laude from 

the University of Illinois; Phi Beta Kappa; Harvard Law School 

magna cum laude; Harvard Law Review, and Oxford scholar. So 

there is no doubt with that academic background and his professional qualities including a long stint as an Assistant U.S. Attorney, he is very well qualified. 

The focus of my inquiries will be on Judge Filip’s recognition of 

the role of Congress on oversight and his commitment to follow the 

rules and permit Congress to exercise its constitutional authority. 

The backbone of this country is separation of powers, and, regrettably, Congress has not been effective in oversight because of the 

response of the executive branch. The Terrorist Surveillance Program was in existence for 5 years before the disclosure was made— 

not by the Department but by the New York Times. 

And notwithstanding very strenuous efforts to find out about 

that program, it took months to find anything with the administration flatly violating the law in failing to inform the Intelligence 

Committees, as they were obligated to do, about the existence of 

the program, and in failing to follow the time-honored practice of 

notifying the Chairmen and Ranking Members of the Judiciary 

Committees. 

5 

Finally, the Intelligence Committees were told about it. We still 

are not sure they were told all about it. We are still not sure that 

the Chairman and Ranking Member of Judiciary have been told all 

about it. But they were told only in the face of the confirmation of 

General Hayden to be CIA Director, and it was only under that 

pressure that they made the disclosure. 

And then we have the Executive expansion on so-called signing 

statements, where the Executive cherry picks the provisions of law 

that they will agree to follow. The Constitution is explicit. Congress 

submits legislation to the President, and he signs it or vetoes it. 

But we have had a practice now of signing statements on cherry 

picking and in a context of very specific negotiations where this 

Committee, in passing the PATRIOT Act giving the executive 

branch extensive new authority did so because of the need to fight 

terrorism. 

And there is agreement that additional powers are needed by the 

executive branch under the PATRIOT Act and on the issue of electronic surveillance and legislation now pending before the Congress. But when we negotiate specific oversight, then the President 

says he may not have to follow that because of his Article II powers. 

On the celebrated negotiations between the President and Senator McCain on the torture issue, the Senate voted 90–9. Again, 

when the signing statement comes, the President has some limitations. There may be Article II powers, he says, where he will not 

have to follow that. 

And then we have had the—only the courts really have been able 

to exercise oversight. The Congress has not done it on detention 

and Guantanamo, and only the Supreme Court in the Rasul case 

has limited the executive sweep of power. And those issues are now 

pending before the Supreme Court of the United States again. And 

the President follows the mandates of the Supreme Court. There is 

really no other choice. But the executive branch has not followed 

the law on the express statutory provisions that I have referred to. 

And we are now locked again in a very tough battle on the revision of the Foreign Intelligence Surveillance Act with what the 

telephone companies are doing. And Congress has been asked to 

grant retroactive immunity to the telephone companies in a context 

where we have never been sure exactly what we are being asked 

to grant immunity from. And I believe the telephone companies 

have been good citizens, and I do not believe they ought to be on 

the spot. 

But there is litigation pending in the courts, and the only effective oversight has been provided by the courts. And that is why I 

am unwilling to give my vote for retroactive immunity, but have 

suggested an alternative of having the Government substituted as 

a party defendant with the same defenses that the telephone companies would have. 

I have talked to Judge Filip earlier. I appreciated his coming by 

for a courtesy call, and I have written to him, as I write to every 

nominee for the Attorney General’s job or the Deputy or subordinate but ranking officials. And these are the issues which I consider most important in this hearing. And I have made them explicit to Judge Filip so he knows what my focus of interest will be. 

6 

But the law on the subject has been summarized by CRS, and 

it is as follows: A review of congressional investigations that have 

implicated Department of Justice investigations over the past 70 

years demonstrates that the Department has been consistently 

obliged to submit to congressional oversight regardless of whether 

litigation is pending so that Congress is able to pursue its investigations. And that includes testimony of subordinate Department 

of Justice employees such as line attorneys and FBI field agents. 

Investigating committees have been provided with documents respecting open or closed cases. 

Now, Chairman Leahy has just referred to the efforts which we 

are making to try to find out about the CIA tapes, and in a rather 

peremptory manner, we have been advised by the Attorney General 

that we are not going to have an opportunity to do that, as he puts 

it, at least at this time. 

But the law is plain that Congress has preeminence and precedent over the Department of Justice on these investigations because the Congress is legislating for all matters, whereas the Department is dealing with criminal prosecutions in a specific matter. 

And the cases are overwhelming on it, running from the Palmer 

Raids to Teapot Dome, to the white-collar crimes in the oil industry, to Iran-contra, Rocky Flats, Ruby Ridge, the campaign finance 

investigations, the U.S. Attorney removals, and border guard prosecutions, just to mention a few. 

In discussing this with the Attorney General, it is my hope we 

will find an accommodation. Congress does have preeminence, but 

if there is some sensitive matter, some witness who ought not to 

be called in an open hearing, we can accommodate to that. This 

Committee is filled with former— 

Chairman LEAHY. And we have. 

Senator SPECTER. And we have. This Committee is filled with 

former prosecutors who have some knowledge of the issues. And 

when we are told, well, Congress fouled up Iran-contra with Colonel North and Admiral Poindexter, when you get involved in immunity, it is a very touchy subject. 

And sometimes U.S. Attorneys make mistakes on the grant of 

immunity, and that was a mistake. But it was much more important to expose what went on in Iran-contra and the violation of 

congressional law and the Boland amendment than it was on those 

prosecutions, important as they were. 

So I think it is really vital that this Committee and the Intelligence Committees keep pushing hard on congressional oversight, 

and I want to have flat assurances from Judge Filip that he understands what the law is and he will follow it. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Well, thank you very much. 

I understand Senator Cardin wanted to make a unanimous consent request. 

Senator CARDIN. Thank you very much, Mr. Chairman. I would 

ask unanimous consent that a letter I received from Loren Taylor, 

who is the President and CEO of the University of Illinois Alumni 

Association, be made part of our record. I have known Loren Taylor 

for many years. I respect greatly his views and judgments. And it 

is a strong letter in support of Judge Filip, pointing out that he is 

7 

masterful in building consensus and can be counted on to represent 

the association in a skillful, informed manner, which are certainly 

skills that are important for the Deputy Attorney General. 

I also should point out that his father-in-law is the Majority 

Leader of the House of Representatives, Congressman Steny Hoyer. 

I would ask unanimous consent that this be made part of the 

record. 

Chairman LEAHY. I have a feeling that the judge would not in 

any way object to that being part of the record, and it will be part 

of the record. 

We also have Congressman Mark Kirk who is here. He has waited patiently, and if he has had the same lack of sleep this week 

as we have on this side—and, Congressman, I appreciate your coming over. It is very kind of you to take the time. We will put your 

full statement in the record, but please go ahead and say whatever 

you would like. 

PRESENTATION OF MARK R. FILIP, NOMINEE TO BE DEPUTY 

ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, BY HON. 

MARK STEVEN KIRK, A REPRESENTATIVE IN CONGRESS 

FROM THE STATE OF ILLINOIS 

Representative KIRK. Thank you very much, Mr. Chairman. I 

want to give a word of thanks to your staff, Luke Albee, who was 

a classmate when I came to Washington. 

Judge Filip comes from my congressional district, also represented by Judge Mikva before me, and I am very happy to be 

here because he represents the tradition, unfortunately well needed 

in my city, of fighting public corruption. We are not only home to 

Al Capone, but also Elliot Ness, Patrick Fitzgerald now, and Judge 

Filip fits in that tradition of service in my community. 

I am also happy that Beth is here, his wife, with Matthew, Charlie, Tommy, and Joe. We are complying with the attendance laws 

of Illinois because their principal from Greeley School is also here 

in the audience. 

[Laughter.] 

Representative KIRK. I will note the Senate confirmed Judge 

Filip 96–0 on February 4, 2004, and it reflected his strong record 

as Phi Beta Kappa from the U of I, a Marshall scholar at Oxford, 

a magna cum laude graduate of the Harvard Law School, a clerk 

of the U.S. Court of Appeals for the D.C. Circuit and for Justice 

Scalia. 

It is because of his work against public corruption that we know 

him best. Mark worked as Assistant U.S. Attorney in Chicago prosecuting a group of corrupt Chicago police officers on charges of 

racketeering, bribery, narcotics trafficking, and extortion. He received the Justice Department’s Director’s Award for superior performance on this work. 

He also prosecuted a number of public corruption cases involving 

the appeal of a bribery case involving a Cook County criminal 

judge, involved with the El Rukn street gang, and a racketeering 

case involving corrupt Illinois Department of Transportation employees, and a corruption case involving several State and local officials. Judge Filip also participated in a major and complex heroinVerDate Aug 31 2005 08:45 Dec 09, 2008 Jkt 045667 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45667.TXT SJUD1 PsN: CMORC
8 

trafficking case across the United States, Thailand, Nigeria, and 

the United Kingdom. 

He has performed a number of good works on the pro bono side, 

including work for communities who are seeking to notify people of 

convicted sex offenders within their boundaries, known as Megan’s 

law, and is on the Board of Advisers for Catholic Charities of Chicago and is very active in his home parish in Winnetka. 

His nomination gives us great pride here. I note that Senator 

Durbin could not be here at the beginning of the hearing, but we 

all support him very greatly. He is one of our stars, especially on 

the public corruption side, and I wholeheartedly endorse him. And 

thank you for the opportunity, Mr. Chairman, of introducing him 

to you today. 

[The prepared statement of Representative Kirk appears as a 

submission for the record.] 

Chairman LEAHY. Congressman, thank you very much. 

I also will tell Luke Albee, who is, of course, a dear friend, and 

thank you for coming by, and have a good Christmas. Enjoy your 

break. 

Judge, would you, while you are still standing, do you solemnly 

swear that the testimony you will give in this matter will be the 

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

Judge FILIP. I do. 

Chairman LEAHY. Thank you. 

Judge, before you begin any opening statement, would you introduce for the record your family and anybody else you wish to here, 

because someday when somebody digs out the Filip archives, it will 

be nice that they can see their names there. We will also make 

sure with the recorder that the names are all spelled correctly. But 

would you do that, please? 

Judge FILIP. Thank you very much, sir. I would be very proud 

to. 

My wife, Beth, is sitting right there. I had the great fortune to 

meet my wife when she was very young and much too young to realize that she could do infinitely better in life than me. And so I 

did not give her a chance to figure things out better than that. She 

has been my partner in life for many years, and I couldn’t ask for 

a better spouse. She has made enormous sacrifices on my behalf, 

and I probably shouldn’t go any further because, like a lot of 

Italian-American men, I will just get emotional. So I am very, very 

grateful to have her as a partner. 

Chairman LEAHY. We Italian-American men know what that is 

like. 

[Laughter.] 

Judge FILIP. So I am very, very fortunate to have her as a spouse 

and as a partner in life. 

To my left here, four sons: Tommy Filip, who is age 7; Charlie 

Filip, who is age 9; Joe Filip, who is age 5, and coloring actively; 

and Matthew Filip, who is age 11. They are great kids, and Beth 

and I are very, very proud of them. 

My in-laws, Terry and Carol Moritz, are here from Illinois, and 

I am very grateful they have put up with me for over 20 years, and 

they are wonderful grandparents. 

9 

My Mom and Dad couldn’t be here, but they are back home in 

Chicago listening, and I would like to say hello to them. 

Then also I am very flattered and very honored to have a tremendous number of friends and neighbors here, mostly from Illinois. I think their kids pushed them to come because they wanted 

to roll it into an extended vacation before Christmas. But the principal of the school is here, Susan Hugebeck. So there has got to be 

some legitimacy to them being here, and I am very, very honored 

and very flattered that they would come. And thank you very much 

for giving me the chance to introduce them. 

Chairman LEAHY. Well, thank you. Thank you very much, and 

I had the privilege of meeting your wife and your four children before. You have a wonderful family. And so please go ahead with 

your opening statement. 

STATEMENT OF MARK R. FILIP, NOMINEE TO BE DEPUTY 

ATTORNEY GENERAL, DEPARTMENT OF JUSTICE 

Judge FILIP. Thank you very much, sir. 

Mr. Chairman, it is a privilege to be here this morning to be considered for the position of Deputy Attorney General, and I want to 

thank you and Ranking Member Specter and the other members of 

the Committee, including Senator Durbin from my home State of 

Illinois for the many courtesies that you have all extended to me 

and my family in this past series of weeks leading up to this hearing. 

I would also like to thank the members for the opportunity to 

meet with some of you privately in advance of this hearing. It was 

enormously helpful to me to hear about some of the concerns of the 

Committee members and also to begin what I hope will be a constructive and cooperative dialog about many issues that face our 

Nation that I know we all care about a great deal, and a constructive dialog that I would endeavor mightily to maintain and foster 

if I were fortunate enough to be confirmed. 

I would also like to express my gratitude to Representative Kirk 

for coming here today and also to Chairman Leahy and everyone 

on the Committee for having this hearing so quickly after my papers arrived here. I appreciate that it is an enormously busy time 

of the year, not just for everyone but also for you, and that people 

have been here very late at night and your staffs have been here 

very late at night. And I am very grateful for you all to be here 

today and to show me that courtesy of having this hearing so 

quickly. 

I would like to express my gratitude to the President and to Attorney General Mukasey for the opportunity they have given me to 

be considered for this position. I became a lawyer in Chicago because I hoped to join the Department of Justice and to join people 

who were prosecuting the Graylord corruption cases, which were a 

series of cases in Chicago directed at corruption in the State courts 

there. And I had the fortune of being able to join that office. Actually, the first case I worked on was the last case that came out of 

the so-called Graylord grand juries. And so to be here today to be 

considered for the position of Deputy Attorney General is truly 

humbling for me. 

10 

Since I was nominated, I have been asked on occasion why I 

would consider coming to the District of Columbia and leaving our 

home in Chicago, a place I love very much. And it is a fair question. I enjoy being a district judge very much in Chicago. I have 

wonderful colleagues there. It is a place I consider home. My wife 

and I have lifelong friends there, and it is where my parents live 

and my in-laws live, and it is a place my whole family considers 

home, and we have wonderful neighbors there. And the simple reason as to why I would consider coming here and asking my family 

to join me here is because of the regard and respect I have for the 

Justice Department. 

I was raised as a lawyer in the Justice Department. I worked 

there during summers in law school. First, I had the great fortune 

to be at the U.S. Attorney’s Office in Chicago. I then spent part of 

another summer in the Public Integrity Section of the Criminal Division at Main Justice. After graduating, I returned to work in the 

Solicitor General’s office at Main Justice. 

And then after I finished clerking, I was fortunate enough, a hiring freeze lifted, and I was quickly able to go to the Chicago office 

of the United States Attorney’s Office where I was able to join 

many of the people who I had read about growing up and to learn 

from them, I believe, the finest traditions of the Department—traditions about independence and following the facts where they lead 

without regard to what that means, and traditions that have been 

established and maintained by all sorts of people, legal luminaries, 

people like Attorney General Robert Jackson and Attorney General 

Edward Levi, another person from my home city; Attorney General 

Robert Kennedy; but also traditions that have been established and 

maintained by really countless career people there who work very, 

very hard and make great sacrifices to try to make our country a 

better place; and traditions that are established and maintained by 

many, many brave men and women who serve as Federal law enforcement agents and who often make great sacrifices to try to 

make our country a better place that we can all be proud to be a 

part of. 

So if I get a chance to serve, I would hope to serve consistent 

with those traditions because that is really the only reason why I 

am here. 

I would like to thank you again for the opportunity to have this 

hearing and to do it at a very busy time of year. I am very grateful 

for that, and I hope to work with this Committee if I am fortunate 

enough to be confirmed, and I very much look forward to answering 

any questions you may have. 

[The biographical information of Judge Filip follows:] 

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54 

Chairman LEAHY. Well, thank you very much, Judge. We did 

want to move quickly because I think the Department needs as 

much leadership as it can get—and I told Judge Mukasey and I 

told the President that we would be willing to do that once the 

names got up here. 

I appreciate what you said about the people who work at the Department of Justice. There are so many people there, men and 

women who neither you nor I, if we spent a week with them, would 

have any idea what political leanings they had, but we would know 

and respect their competence. And I worry that morale has been 

hurt enough that some of those people whom we need, this country 

needs, who have been there in both Republican and Democratic administrations, that they may leave. And your job would be to restore much of that credibility. 

Assuming you were the Deputy Attorney General in 2005 and 

the Director of the CIA informed you that the CIA intended to destroy the videotapes showing the use of cruel interrogation techniques such as waterboarding, techniques which had already been 

at the center of a congressional debate, actually had been in cases 

in the U.S. Supreme Court and other courts about torture and our 

Government’s treatment of detainees, and they said we are going 

to destroy those videotapes, what kind of advice would you have 

given them? 

Judge FILIP. I would have given them—I would have first tried 

to look at the applicable legal orders that were in place and give 

them advice as a lawyer as to what their legal responsibilities 

were. I also would have considered giving them broader, more prudential sort of advice about whether or not, strictly speaking, 

things were within the corners of orders or not. It might be the better practice to keep those in any event given the nature of the interests at stake in terms of the subject matter that was on the 

tapes. 

Chairman LEAHY. A subject matter that was before the Congress 

and the courts. 

Judge FILIP. Yes, sir. 

Chairman LEAHY. And, alternatively, assume you were the Deputy Attorney General on December 6th this year and you woke up 

to see this story in the New York Times revealing—or December 

7th, rather, revealing that the CIA destroyed two tapes showing interrogations. The videos were not provided to the 9/11 panel, even 

though they had asked for them, or the court during the terrorism 

trial. So they had a request from a Federal judge for this information, from the 9/11 Commission, plus, of course, the congressional 

ones. 

Now, assume the Attorney General is out of the country and unavailable so you are Attorney General, what would you do? 

Judge FILIP. I think you’d have to open up two lines of inquiry. 

One of them would be an inquiry as to any representations that the 

Department had made in court, whether or not those representations had to be corrected. You would need to begin to look to see 

whether or not corrective action needed to be taken in that regard. 

You would also want, I suspect, to at least begin the process of 

making inquiries about whether or not obstruction of justice or 

55 

other more serious civil or criminal statutes were implicated. And 

you would want to begin an investigation in that regard. 

Chairman LEAHY. Judge, if this contradicted statements that 

were made in court, is it safe to say that if they did, it would be 

the duty of the Department of Justice to immediately notify whatever court that was, ‘‘We did actions that contradict what we have 

told you’’? I mean, just as an officer of the court, wouldn’t they 

have to do that? 

Judge FILIP. Yes, sir. 

Chairman LEAHY. Thank you. You would expect that as a Federal judge, district judge, if the Government had given you a statement they then found to be erroneous, you would expect them to 

be in your court very quickly to point that out. 

Judge FILIP. I would expect them to notify me as a judge. I would 

expect to have done it as a Federal prosecutor, yes. 

Chairman LEAHY. Thank you. 

Now, congressional investigations have run concurrently with executive branch investigations, certainly during the 33 years I have 

been here, and Congress and the Justice Department have usually 

found ways to go forward without undermining or interfering with 

ongoing criminal investigations. Senator Specter mentioned Ruby 

Ridge. That was a case where Senator Specter, his leadership, and 

Senator Kohl and I worked in a bipartisan fashion to hold a hearing at the same time being well aware and conscious of the fact 

that there was an investigation underway by the executive branch. 

Now, in the case of the destroyed videotapes, I think it is very 

important to us to find out what the Justice Department’s role was 

in providing any legal opinions about the techniques shown on 

these videotapes and their destruction as part of our oversight. 

What commitment can you provide that you will work with the 

Senate Judiciary Committee and other relevant congressional committees to provide us with information responsive to our oversight 

requests? 

Judge FILIP. Senator, I acknowledge that the oversight authority 

of this Committee and other committees in Congress is broad and 

it is rooted in case law and acknowledged. And I am not a Washington person. I do not have extensive experience in trying to work 

with Congress in that regard. But I would direct the people who 

are involved in that, whom I understand largely to be career people, to appreciate that oversight is important, that it is not a victory for the Department when Congress is denied things that it can 

legitimately be provided, consistent with our responsibility as a law 

enforcement entity—or the Department’s. I shouldn’t say ‘‘our.’’ I 

apologize. With the Department’s responsibilities as a law enforcement entity. 

And so I would ask them to try to work cooperatively to try to 

find common ground to allow Congress to exercise its oversight authorities. 

Chairman LEAHY. You know, in this job, I am privileged to spend 

a lot of time traveling, some of it pleasurable. You and I discussed 

the fact I was visiting my relatives, family in Italy here recently, 

but a lot of them are in business around the world, and I find the 

concerns expressed by many of our allies and friends around the 

world about where America is going. And one of the greatest probVerDate Aug 31 2005 08:45 Dec 09, 2008 Jkt 045667 PO 00000 Frm 00059 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45667.TXT SJUD1 PsN: CMORC
56 

lems has been the Bush administration’s equivocation on America’s 

stand against torture. 

Last week, we saw another manifestation of the contortions when 

a senior military officer testified he couldn’t say whether a foreign 

agent waterboarding an American was illegal or not, even though 

I suspect if we heard about such a thing, there would probably be 

a resolution that would go through both bodies unanimously condemning it. 

I criticized the State Department when its legal adviser took this 

stance. I found the testimony by a senior member of our military 

to be not only wrong but damaging. And we find in the Department 

of Justice the infamous 2002 Bybee memo to try to provide legal 

justification for this. And there, the Department of Justice’s Office 

of Legal Counsel concluded that the President has the authority as 

Commander-in-Chief to override both domestic and international 

laws prohibiting torture and to immunize from prosecution anyone 

who committed torture under his order even if it was contrary to 

our laws. 

Does the President have the authority to exercise a so-called 

Commander-in-Chief override and immunize acts of torture, as the 

Bybee memo argued? 

Judge FILIP. I think torture is prohibited by the Constitution, 

and the President is bound by the Constitution as well. So the answer to that, sir, would be no. 

Chairman LEAHY. Thank you. My time is up. I will be coming 

back. 

Senator Specter? 

Senator SPECTER. Thank you, Mr. Chairman. 

Judge Filip, I have referred to a letter which I have sent to you. 

Did you receive the letter? 

Judge FILIP. Yes, sir, I did. Thank you. 

Senator SPECTER. Do you agree with the statement of law summarized by the Congressional Research Service? 

Judge FILIP. I have no basis to quarrel with it, and I acknowledge that the oversight authority of this Committee is very broad. 

And I think that in the oversight area it is essential for the Department to work with this Committee to try to accommodate its oversight needs consistent with our responsibilities as a law enforcement agency. 

Senator SPECTER. Do you acknowledge the decisions of the Supreme Court in McGrain v. Daugherty in 1927 and Berenblatt v. 

United States in 1959 concerning the primacy of congressional oversight over Department of Justice criminal investigations? 

Judge FILIP. I acknowledge all the Supreme Court decisions, so 

certainly, yes. 

Senator SPECTER. Well, it is an obvious matter that the Supreme 

Court makes the decisions, but I think it is important to set the 

parameters. And I went through the long list, and I would ask 

unanimous consent that this document be made a part of the 

record summarizing the investigations on the Palmer Raids, Teapot 

Dome, the white-collar criminal prosecutions in the oil industry, 

Iran-contra, Rocky Flats, Ruby Ridge, campaign finance investigations, the U.S. Attorney removals, the border guard prosecutions as 

all being instances where the congressional supremacy has been acVerDate Aug 31 2005 08:45 Dec 09, 2008 Jkt 045667 PO 00000 Frm 00060 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45667.TXT SJUD1 PsN: CMORC
57 

knowledged. You do not have any doubt about those precedents 

being applicable on the overall question of congressional oversight? 

Judge FILIP. I have no firsthand knowledge of those incidents, 

sir. I have no basis to quarrel with the fact that those instances 

are instances where there have been parallel investigations. I think 

that both branches need to be mindful and need to work cooperatively to try to allow that oversight to occur, and also at the same 

time to make sure that the possibility of criminal prosecutions are 

not jeopardized, and that perhaps that might relate to the timing 

of inquiries or what specific form information might be provided in. 

But I do not quarrel with the proposition that parallel investigations have occurred in the past and can occur. 

Senator SPECTER. Well, Judge Filip, when you talk about criminal prosecutions being jeopardized, let’s talk about the relative 

roles of Congress versus the Department of Justice. In discussions 

with the Attorney General, reference is made to the prosecutions 

of Colonel North and Admiral Poindexter which were jeopardized 

because immunity was not granted properly. Those are errors 

which are not unheard of, whether the matters are handled by the 

United States Attorneys or by district attorneys or by Congress. 

But that case brings into sharp focus the primacy issue on the 

greater importance to the public to have Congress deal with Irancontra on investigating whether congressional laws have been violated, specifically the Boland amendment, with what was done by 

the executive branch. Wouldn’t you agree that even if criminal 

prosecutions are jeopardized that it is more important, as acknowledged by the courts, that Congress have primacy to proceed as Congress ultimately concludes the public interest requires? 

Judge FILIP. I would hope, Senator, to not have to pick between 

the two. I would hope to be able to try to work with Congress such 

that Congress could perform its oversight missions, and criminal 

prosecutions, if they were there to be made, could be preserved. 

Senator SPECTER. Well, Judge Filip, I agree with you totally, and 

when we are looking toward congressional inquiries into the destruction of the CIA tapes, we are looking at broader matters than 

simply the prosecutions. We are looking at the appropriate range 

of interrogation tactics. Now the House of Representatives has 

passed legislation saying that the CIA should be bound by the 

Army Field Manual. And we have questions as to the Geneva Convention, and we have questions as to congressional legislation on 

whether habeas corpus—as the statutory part of habeas corpus, not 

constitutional—ought to be revised. 

Now, those are issues of greater breadth and greater depth than 

the criminal prosecution against someone who may have destroyed 

the tapes. Now, it is my hope that we can work out an accommodation, and that the conversation I had yesterday with Attorney General Mukasey will be the beginning. And he referenced that he was 

going to have his Deputies call my assistants, and I hope we can 

work it out. And if the Department of Justice has some witness 

that the Department thinks should not be called in a public hearing, we would give great deference to that, probably would agree 

with it. 

But if it comes to a conflict and you have to make a choice, is 

there any doubt that the broader issues that we are facing, which 

58 

I have enumerated for you, whether we are going to bind the CIA 

to the Army Field Manual, what we are going to do on interrogation practices generally, how we are going to deal with our Geneva 

Convention obligations, international matters, all beyond the scope 

of the Department of Justice—if you have to choose, doesn’t congressional primacy prevail? 

Judge FILIP. Sir, I wasn’t privy to the discussion you had with 

the Attorney General— 

Senator SPECTER. Well, strike that part. Just deal with the litany 

of issues I have given you above and beyond a criminal prosecution, 

whether congressional primary isn’t pretty clear-cut there? 

Judge FILIP. Sir, I think you and I very much share the view 

that Congress has broad oversight authority, and we very much 

share the view that hopefully that broad oversight authority can be 

accommodated, while at the same time not jeopardizing criminal 

prosecutions. 

As to picking between the two of them, I would work very hard 

to try to find common ground so we wouldn’t have to make that 

choice. 

Senator SPECTER. Well, on the second round, I am going to come 

back to a number of subjects, but I want to broach one more with 

you, and that is the steroids issue, before I yield. We are waiting 

for Major League Baseball to do something effective on dealing 

with the issue, and it is complicated because they have to get the 

agreement of players on testing. And one very substantial power 

which Congress has would be to change the law on the antitrust 

exemption to condition some effective action by Baseball to deal 

with the problem. And I will get into this more deeply in the second round. 

But I would like you to give some thought to that question as 

to—the executive branch obviously weighs in on legislation, and I 

would like you to give some thought to whether the exercise of that 

power to evoke the antitrust exemption might not be an effective 

tool and an appropriate way if Baseball does not act on its own. 

We would rather not interfere. But if we have to, would you think 

that a good way to go? 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. Well, I am one who feels that exemption should have been lifted a long time ago, along with the insurance companies. That is not a question, Judge. That is an observation by one member of this Committee. 

Senator Kennedy? 

Senator KENNEDY. Thank you very much, Mr. Chairman. 

Judge, nice to see you. I appreciated the chance to talk with you 

in my office, and also to go over some of the areas that we will be 

talking about this morning. I will come to those in just a moment. 

I just wanted to clarify an earlier response that you gave to 

Chairman Leahy, and that was on the torture issue. I heard you 

say to the Chairman that torture is unconstitutional, so it is always prohibited. Judge Mukasey said the same thing to us. Everyone agrees with that point. The key question is, what constitutes 

torture? Judge Mukasey would say nothing at all on that question. 

So, the same question to you. Do you consider waterboarding torture? 

59 

Judge FILIP. Senator, speaking personally, I consider 

waterboarding to be repugnant, as it has been reported in any of 

its various iterations. The Attorney General—and I also think it’s 

important for us to all be mindful that we have service members 

around the world oftentimes in precarious places. And I don’t view 

that as some sort of abstract platitude. I had a grandfather who 

was in a German prisoner of war camp. 

That said, the Attorney General of the United States is presently 

reviewing that legal question. He determined that he wanted to 

have access to classified information, some memos about it. I don’t 

think I can, or anyone who could potentially considered for his deputy, could get out in front of him on that question while it’s under 

review. 

But I will tell you that if I am confirmed, at a time such that 

that review is ongoing or he otherwise sought my advice on it, I 

would view it like any other legal question and take a long, hard 

look at it, and if I had a view on it different from his, I would tell 

him so. 

Senator KENNEDY. Well, you’ve been a judge. You know what 

this issue is. This shouldn’t be something that’s going to take a lot 

more study about. I mean, you know what we’re talking about. Not 

only are you familiar with the concept, but you know the arguments of it. You know what the debate has been about and you 

know what the Geneva Convention—I mean, we ought to get—‘‘repugnant’’ is not, I think, the answer that meets the requirement in 

terms of the various statutes. 

You’re not prepared to tell us, in your own words, whether you 

believe that waterboarding is torture, the same kind of techniques 

that the United States prosecuted the Japanese for doing to Americans in World War II? 

Judge FILIP. I think, Senator, that I ought to await having access 

to that information and await an opportunity, if confirmed, to give 

candid advice to the Attorney General on that before I answer a 

question he presently has under review. 

Senator KENNEDY. Well, others will come, I am sure, back to 

that. But I must say, everyone is familiar with the challenges that 

were out there for Mr. Mukasey when he refused to give an answer 

on that. We thought that you would be able to give a response to 

this. You have been a judge. You made the decisions, you know 

what the issues are. It is not a complicated issue and question on 

it. It seems to me that you ought to be able to respond to it. 

Let me just go back to the issues about the Department, and generally torture. You’re familiar with the old Bybee memoranda issue 

in question, and I’m sure you’ve gone through that in some detail. 

Judge FILIP. Yes, sir. 

Senator KENNEDY. The Nation was aroused by it. It was in effect 

for a period of time. Attorney General Gonzales basically withdrew 

it and issued another resolution, but he’d been very much involved 

when he had been in the White House, talking to OLC, the Office 

of Legal Counsel, in the shaping of the Bybee memoranda. We 

never got into exactly what advice he gave or didn’t give, but nonetheless he was very much involved in it. 

Now we see the revelation that the CIA tapes were destroyed, is 

sort of the latest revelation in the administration’s attempt to cover 

60 

up what has been out there. Today in the New York Times it says 

that conversations took place about the destruction of tapes and it 

names Mr. Gonzales, Harriet Miers, David Addington, and John 

Bellinger as being involved. It doesn’t give the time when that was. 

Attorney General Gonzales was confirmed on February 3, 2005. 

Then in November of 2005, the tapes were destroyed, some 9 

months after Mr. Gonzales became Attorney General. It is, I think, 

unrealistic to assume that Mr. Gonzales did not have any further 

conversations about the tapes during the 9 months that he was Attorney General. 

The Department of Justice has refused to answer questions 

about its own involvement in the decision to destroy the tapes. Between the time Attorney General Gonzales and the destruction of 

the tapes, we know OLC was deeply involved in reviewing the legality of interrogation techniques and it issued two secret opinions 

approving harsh interrogations during this very period of time. 

Now, the Department of Justice has been involved in the litigation opposing the claims of detainees and has resisted the production of evidence regarding the treatment of detainees. This coming 

Friday, Judge Kennedy will hold a hearing to determine whether 

the Department of Justice violated a preservation order by the destroying of the various tapes. So, the involvement of the Department of Justice appears to be deep and widespread. 

Now, what has been the response of the Department? The Department, and under the Attorney General, has appointed Kenneth 

Wainstein, the head of the National Security Division, to conduct 

a joint investigation with the CIA’s Inspector General. That is 

hardly an independent investigation. It sounds like the fox is 

guarding the henhouse. The National Security Division works 

closely with the CIA, and I’m not aware that it has a track record 

of investigating criminal misconduct of public officials. 

Mr. Wainstein was U.S. Attorney in the District of Columbia in 

2005, so there may be a question about the involvement of his office in the preservation orders that had been issued for the interrogation tapes. Also, according to General Hayden, the CIA’s Inspector General actually viewed the destruction of tapes, so the Inspector General may be someone the investigators should be questioning, not one who should be doing the questioning. 

Now, there is a strong possibility of the White House and Department of Justice being involved in the decision to destroy the 

tapes that greatly increases my doubt about whether the Department of Justice can lead the investigation in a way that will assure 

the Congress and the American people that it is independent and 

uncompromised. Appointing a special prosecutor is the safest way 

to make sure the investigation meets the standard. 

Now, will you consider appointment or recommending a special 

prosecutor? 

Judge FILIP. I think it is imperative that the investigation be 

done in a way that it can be conducted with integrity. I’m not at 

the Department now so I don’t know the specifics of it, but if the 

facts warranted any particular course of action, including putting 

particular individuals on, taking particular individuals off, up 

through and including a special prosecutor, if that’s what I thought 

that the law and justice required, yes, I would do that. 

61 

Senator KENNEDY. Should the FBI have a role? They have experience in conducting criminal investigations. 

Judge FILIP. Again, I’m not at the Department. If it would be appropriate for them to get involved, I have the greatest, you know, 

respect for the FBI and would certainly consider bringing them 

onto the team. 

Senator KENNEDY. The Public Integrity section. They have the 

experience and expertise in prosecuting crimes of cover-ups. Should 

they be involved? 

Judge FILIP. If it were appropriate to include them. You’re absolutely right. There are some very talented people there and I would 

consider that as well, yes. 

Senator KENNEDY. Well, Mr. Chairman, my time is up. But I 

don’t know what, quite, the word ‘‘appropriate’’ means on this. So 

we have these on the record. This is a time bomb. This is on the 

record. I’ve tried to lay out what the facts are about the difficulties 

of Wainstein’s on there. It is just mystifying to me why the Attorney General wouldn’t involve the FBI, why they wouldn’t have the 

Office of Public Integrity, which has under the Criminal Division, 

you’re telling me now today that you will just—if it’s appropriate, 

it will? But you’re not—I don’t get much sense of urgency about the 

importance of it and about your role and about your deep concern 

about this issue. 

Judge FILIP. Senator, I think— 

Senator KENNEDY. I want to be fair to you in listening to your 

response. 

Judge FILIP. May I respond? 

Chairman LEAHY. Sure. 

Judge FILIP. I think it’s a very, very important issue and I would 

hope that my record as a prosecutor would give you comfort that 

I will do whatever is appropriate to make sure that it’s handled 

fairly. I’m not at the Department now. If there’s one thing learn 

as a District judge, it’s that facts matter and that you have to get 

in and roll up your sleeves and try to understand what all the particulars are. 

I understand I am not the first person to take a look at this, but 

if I thought that for any reason it was appropriate to put particular 

people on, to take particular people off, or to have the matter removed from the Justice Department in its entirety, I wouldn’t hesitate to say so, sir. 

Senator KENNEDY. Thank you, Mr. Chairman. 

Chairman LEAHY. I should note that Congressman Kirk was here 

earlier to introduce you, and at that time his duties were keeping 

him away. But Senator Durbin also, from Illinois, is here. 

Senator Durbin, you are going to have time for questioning later. 

But did you want to add anything to the introduction that the Congressman made earlier? 

PRESENTATION OF MARK R. FILIP, NOMINEE TO BE DEPUTY 

ATTORNEY, DEPARTMENT OF JUSTICE, BY HON. RICHARD J. 

DURBIN, A U.S. SENATOR FROM THE STATE OF ILLINOIS 

Senator DURBIN. Just very briefly. I apologize for not being here, 

Judge Filip, when you were initially introduced. I welcome you and 

your family in coming here today. 

62 

Mr. Chairman, it was my good fortune several years ago when 

Senator Peter Fitzgerald nominated Mark Filip for the Federal 

bench, to meet him and to support his nomination. He squeaked by 

the U.S. Senate with a confirmation vote of 96 to nothing. I have 

to tell you that his 3 years on the Federal bench in Chicago have 

confirmed the feelings of the Senate that you were ready for that 

job. 

In the almanac of the Federal Judiciary, there were comments, 

anonymous comments, by Chicago attorneys which any judge 

would love to read. They said of your service on that bench: ‘‘His 

legal ability is a perfect 10 out of 10.’’ ‘‘He’s an exceedingly smart 

man.’’ ‘‘He’s the nicest judge in the courthouse, never loses his temper, never embarrasses lawyers.’’ ‘‘You always feel as if you’re 

going to get a fair shake in his courtroom.’’ That is high praise 

from men and women who could have said other things more negative. 

So I thank you for your great service on the Federal bench, and 

I hope today that in the course of the questioning we can justify 

your ambition to move from that bench to this high level in the Department of Justice. Again, I want to thank you and your family, 

all of you, for the sacrifice you have made to public service. Thank 

you very much. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

I talked earlier with Senator Specter, and he can speak for himself in this, and I’ve raised this with the representative from the 

Justice Department yesterday. Obviously we are going to be in session more pro forma today than I had hoped. The normal mark-up 

that we would have tomorrow will not occur. I would just urge the 

Department of Justice that your nomination and others—we’ve 

really been trying to push these quickly—that we work out maybe 

an accomodation with Senator Specter and myself to name, in 

about a 2-month period, as acting these various people, yourself included, which would allow us, as is the regular process, to have our 

mark-up in committee and a vote on the floor. 

The Deputy Leader is here. I think he would concur with me that 

mark-ups or a floor vote would go very quickly. I throw that out. 

That’s not a question to Judge Filip, but I throw it out as just 

something to suggest to the Department of Justice. In the years 

I’ve been here, there has been ample precedent for this when Congress is going to be out rather than try to do some kind of a recess 

appointment which just angers everybody when it’s done without 

concurrence of both the Chairman and the Ranking Member. 

In this case, Senator Specter and I would be willing to consider 

something where a number of these nominees could be named on 

an acting basis for a couple of months, with the understanding 

we’re going to be completing all of our process—certainly within 

that period of time. 

Senator Specter, does that fairly state our conversation? 

Senator SPECTER. Mr. Chairman, I think it does. We were talking on the floor late last night. We have irregular hours and there 

are lots of conversations that go on, and occasionally we say something constructive. Senator Leahy broached the subject of trying to 

get you on the job, and he and I are in agreement that it would 

63 

be very useful if you were on the job. We can’t work through the 

confirmation at the moment, but I think that Senator Leahy has 

made a very generous suggestion to the administration, one that I 

concur in totally, to have you take on acting, which is not customarily done. 

When somebody is nominated for a position, people stand aside 

and don’t answer any questions, and don’t talk to the press, and 

talk to hardly anyone so as not to impede the ultimate confirmation. But with our concurrence—and there are other members 

present, if anybody objects to that. I don’t think people will—it 

would be very helpful to the Department and we want to help the 

President and the Department move ahead. 

Chairman LEAHY. Thank you. With that, the next in order we 

have Senator Hatch, Senator Cardin, Senator Sessions, Senator 

Whitehouse, Senator Durbin on questions, and then back to the 

two leaders of the committee. 

Senator Hatch? 

Senator HATCH. Well, thank you, Mr. Chairman. If I could make 

a suggestion, this is such an important position and needs to be 

filled. He is a sitting Federal judge. Personally, I believe this side 

would waive needing unanimous consent to get him on the job and 

get him confirmed before we actually go out this year. That might 

be something we want to do. 

Chairman LEAHY. Well, I think we’re getting into a discussion 

that we should probably be having among members privately. 

Senator HATCH. Well, I just— 

Chairman LEAHY. And what we have done—Senator Specter and 

I have done something that takes care of the problem. I think what 

the Senator from Utah is about to suggest is something that would 

require both Leaders and everything else, and I’m not in a position 

I can speak for them, nor is the Senator from Utah. So I think we 

should go ahead with the questions. 

Senator HATCH. If I could just add to that one comment, that 

that is a solution that probably could be done. I can’t imagine a sitting Federal judge wanting to take a recess appointment. I think 

that he would—and we all know how qualified and competent he 

is. So let’s think about it anyway, Mr. Chairman. I know that you 

have great intentions here. It’s just a suggestion. I hope we can get 

him on the job, is what I’m saying, full-time. 

Well, I want to thank you, Mr. Chairman, for holding this hearing. I want to welcome you, Judge Filip, your wonderful wife, these 

fine young men that you have as sons, and your friends, and principal, and all here. I’m grateful. I enjoyed meeting in our office a 

couple of weeks ago. I expect great things from you at the Department. I think all of us do. 

You have accomplished some amazing things in your legal career. 

I understand you were nominated to the bench. When you were, 

the Chicago Council of Lawyers endorsed your appointment and 

praised your legal ability, temperament, and professionalism. 

Now, the Senate, of course, unanimously confirmed you to the 

U.S. District Court, the Federal District Court, almost 4 years ago 

and you’ve served in a distinguished fashion there. Then last year, 

the Chicago Council of Lawyers surveyed practitioners about 

judges and you again received rave reviews. They say you’re imparVerDate Aug 31 2005 08:45 Dec 09, 2008 Jkt 045667 PO 00000 Frm 00067 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45667.TXT SJUD1 PsN: CMORC
64 

tial, open-minded, smart and hardworking, professional, and easygoing, and your integrity is absolutely unquestioned. So, I would 

think we might be able to hopefully get you on the job. 

Now, let me quote from a recent posting on a popular legal blog 

by a criminal defense attorney who practices before you: ‘‘He is outstanding and is one of the best judges we have in the Northern 

District. What I know is what I see in court. He is bright, thoughtful, and well-prepared on the cases. He is respectful of the parties 

and attorneys and conducts himself in complete professionalism.’’ 

Now, that’s from a criminal defense attorney about a judge and 

former prosecutor. That is high praise, indeed. 

Now, it seems like you have more than fulfilled people’s high expectations on the bench, and I expect you to do the same at the 

Department of Justice. As I told Attorney General Mukasey when 

he was before this committee, I think your experience as a Federal 

judge is an important addition to the leadership team at the Department. We all respect the Federal bench and we certainly respect you. 

More and more issues confronting the Justice Department, especially in the war on terrorism, end up challenged in court. Having 

not just smart lawyers, but experienced judges over there making 

these decisions, adds something very unique and valuable. I think 

you can add a lot. 

Now, in the controversy over destruction of videotapes allegedly 

recording CIA interrogation of terrorists, Attorney General 

Mukasey has said that Congress should wait for him to investigate 

before launching its own probe. In other words, let the prosecutors 

do their work before the politicians join the fray. 

Today, the Washington Post editorialized that the Attorney General was right. Yesterday, the Chicago Tribune said the same 

thing, that politicians should not throw a wrench in the works. I 

find it a little ironic that some who most loudly demand that the 

Attorney General be independent from the President appear to 

want him to be dependent upon Congress. I think we’ve got to be 

careful there. 

Mr. Chairman, I ask consent to include these two editorials in 

the record. 

Chairman LEAHY. Without objection. 

Senator HATCH. Judge Filip, what is your view of that issue? 

Should the Congress hold off and let the Justice Department probe 

proceed first? If so, explain why. 

Judge FILIP. Senator, I would hope that both bodies could pursue 

their investigations. At this early stage it may make some sense to 

give some breathing room to the Department so that they can try 

to see what the landscape looks like and see if it looks as though 

a criminal investigation is going to go forward. But I would hope 

that both aims can be pursued and that folks can work cooperatively in that regard. 

Senator HATCH. Well, thank you. 

During his confirmation, Attorney General Mukasey promised 

personally to reexamine the Justice Department’s strategy for enforcing the anti-obscenity laws. Now, I think the Department has 

been wrong to prosecute only the most extreme fringe material and 

leave the more common, equally obscene, equally illegal material 

65 

alone. That narrow approach, to me, does not impact the obscenity 

industry and does not curb the poison of obscenity in our communities. So will you personally examine this policy and consider 

changing it, if you will? 

Judge FILIP. Yes, sir. 

Senator HATCH. Well, those are two things that I feel pretty darn 

deeply about, and there are a lot of other things, too. But I noticed 

that—well, let me just ask one other question if I can. 

Some have questioned whether you have the management experience to lead the Department with more than 100,000 employees, 

hundreds and hundreds of lawyers in operations spread across the 

country. Now, the hearing we had yesterday included nominees to 

Justice Department components as varied as the Tax Division, the 

Violence Against Women Office, and the Community Relations 

Service. The Deputy Attorney General is like the chief operating officer. On the one hand, I do not know how anyone nominated for 

this position could have comparable prior experience unless they 

led a massive multinational corporation, and that isn’t generally 

where we go to get people in your position. 

So let me ask you, how do you size up the management challenges ahead and what prepares you to tackle such a monstrous 

task? 

Judge FILIP. Sir, I hope I am humble enough to realize that 

there’s 110,000 very talented people there, and I would seek to 

draw upon their talents. I have managed in a legal setting. I have 

managed law enforcement people and teams of attorneys both as 

a prosecutor and in the private sector, but not 110,000 people. I 

doubt many folks have ever done that. But I do think, and work 

very hard to try to be fair and to try to be a good listener. I would 

seek to draw upon the talents of the people who are there. 

I would seek to try—as I understand it, a big part of the job is 

resolving disputes within the Department, tough disputes that 

can’t be resolved anywhere else, and I would hope that my experience as a judge and my record as a judge would give people comfort 

that I’ll give people a fair hearing and hear them out, and then be 

decisive and try to do things in the best interests of the Department. 

Senator HATCH. Well, Judge, I mentioned a minute ago I think 

your judicial experience is particularly important. Some have questioned whether you are sufficiently independent to help lead the 

Justice Department. Now, different people mean different things 

about words like ‘‘independent’’. Some will not think you are independent unless you actually oppose the very President who appoints you on certain issues. Some say you will simply kowtow to 

the President because you volunteered on his 2000 campaign and 

contributed to his reelection campaign. To me, that’s crazy. No one 

cited these connections or questioned your independence when the 

Senate unanimously confirmed you to the Federal bench. 

Now, we easily confirmed to the Judiciary and Justice Department scores of President Clinton’s nominees, who were tied much 

more closely to him. No one questioned their independence or their 

commitment to the rule of law. 

But let me ask you how especially your service as a judge has 

given you the kind of independence, the kind of commitment to the 

66 

rule of law that you will need in order to help lead this Justice Department. 

Judge FILIP. Senator, commitment to the rule of law is fundamental as a prosecutor, as a member of the Justice Department, as 

a District Court judge, and I would hope my record reflects that. 

I try to figure out what the law is and apply it to the facts at hand 

fairly without regard to where that leads you. 

Senator HATCH. Well, thank you. I appreciate it. 

Mr. Chairman, thank you for this time. 

Chairman LEAHY. Thank you. I found it somewhat interesting, 

what Senator Hatch was saying: some people say this, some people 

say that. He apparently has better sources than I have. I hadn’t 

heard anybody say either of those things that may make good debating. But I think everybody has been extraordinarily objective in 

talking—both Republicans and Democrats, in talking about your 

nomination. Certainly Senator Durbin, who is the Deputy Majority 

Leader, has been. 

Senator Whitehouse? 

Senator WHITEHOUSE. I yield to Senator Durbin. 

Senator DURBIN. Thank you, Senator Whitehouse, for doing that. 

Judge Filip, let me explain to you what I consider to be my personal moral dilemma with your nomination. I felt that Judge 

Mukasey offered a clear break from former Attorney General 

Gonzales and that his time on the Federal bench and the wisdom 

of his years and his responses to questions on our first day indicated to me that he was prepared to stake his personal reputation 

on standing up for the Constitution, for legal principles, and walk 

away from the job if he felt he was asked to compromise. 

Then came the second day, and that’s when things fell apart. I 

asked him a question about waterboarding, followed through by 

Chairman Leahy and Senator Whitehouse. At the end of the day, 

I concluded I could not support his nomination for Attorney General. It was a stark reversal because my friend and colleague, Senator Schumer, wanted to entrust the job to him and I felt that this 

issue was so important and so primal in terms of the rule of law 

and the image of the United States, that until we were given clear, 

unequivocal answers, I could not go forward. 

Now you find yourself in a compromising position because you 

are aspiring to be his Deputy, and your answers earlier to questions about waterboarding showed deference to the fact that Judge 

Mukasey is going through a process of evaluating this issue of 

waterboarding, which leads me to believe that you are not going to 

provide any more satisfactory answers on the issue than he did. 

So let me try to take this to a point—I hope we can take it to 

a point where we can make some progress on this. I have already 

said, and I believe, you did a fabulous job, and have done a great 

job as a Federal judge. I’m glad I associated my name with your 

nomination. You’ve not disappointed. In fact, you’ve confirmed our 

best hopes in terms of your public service. 

Here’s the point. I think the definition of waterboarding is very 

basic. If I understand it—and I tried to just jot it down—it is an 

interrogation tactic which simulates drowning. It is designed to put 

the detainee in fear of his life. I think that is a fair conclusion to 

what waterboarding is. 

67 

And it appears that we have prosecuted Japanese who performed 

this tactic on American soldiers. We even prosecuted an American 

soldier guilty of that conduct against Filipinos. It seems to me to 

be, on its face, an obvious and simple definition that has been applied by our government, prosecuting those who did it to others or 

did it to our own. 

Now when I ask Judge Mukasey, is this torture, he said he can’t 

answer that question. Under what circumstances would 

waterboarding not be torture? 

Judge FILIP. Senator, I do not have access to those confidential 

memoranda and I have not had a dialog with the Attorney General 

about the question he has presently under review at all. I don’t believe, as someone who would be his putative deputy, I can get out 

in front of him and answer the question he specifically has under 

review. 

Senator DURBIN. Do you understand the problem that creates 

from this side of the table? 

Judge FILIP. I understand the seriousness of the issue. I understand your frustration. I would ask, respectfully, that you look at 

my record and see whether I’ve had hesitation looking at issues 

independently and in an intellectually honest way, and speaking 

up for what I thought the law required. That’s what I would do if 

I were confirmed. 

Senator DURBIN. I don’t have any question about that. I think 

you’re a man of principle. I recall that when you sought the nomination there was one issue involving something you’d written as a 

law student, if I’m not mistaken. You took the time to give me a 

lengthy, and I thought very comprehensive, explanation about your 

thoughts then and your feelings at the time. I thought it was a 

very honest admission that perhaps what you said earlier was 

something you didn’t feel today. 

This is so fundamental. Since Judge Mukasey took this job as Attorney General, it appears—at least now we know—there’s been a 

public disclosure that evidence was destroyed. It raises a serious 

question. Should this come up in a criminal prosecution that the 

government or either side had destroyed evidence, you know the 

obvious conclusion that could be drawn, that that evidence, in and 

of itself, was at least troubling, if not incriminating. 

We continue to be haunted by this administration’s refusal to 

make their actions match their rhetoric. The President has said repeatedly, torture is not our policy. We do not engage in torture. Yet 

when we go to the most fundamental and basic definition of torture, waterboarding, we can’t elicit an answer from the Attorney 

General or his Deputy Attorney General, a clear, unequivocal answer in this. 

That is my dilemma. That is what I am going to be faced with. 

I happen to believe this is not just another issue. I think this may 

be the defining issue for the war on terror and America’s reputation when it comes to human rights. That’s why I’m going to continue to struggle with this. I don’t know if there’s any more guidance you can give. You’ve been consistent in your answer and I understand it, but it doesn’t leave me in a place where I feel satisfied. 

I cannot believe that we are going to walk away from decades of 

68 

adherence to Geneva Conventions from a human rights reputation 

which led us to be the critic of the world. 

You know, we publish an annual human rights report card on 

the rest of the world. Our State Department does it, continues to 

do that. So it really puts us in a special position of responsibility 

when it comes to these issues, and that’s why I struggle with this 

issue and I struggle with your response. I think it is a response 

consistent with Attorney General Mukasey, but consistent with Attorney General Mukasey’s response to this committee he received 

the lowest confirmation vote of any Attorney General nominee in 

the last 50 years. That’s where you find yourself at this moment 

over the same issue. 

Is there something more you want to say or add to our thinking 

on this issue before I move to another topic? 

Judge FILIP. Sir, the issues you identified about our country’s 

perception in the world and our relationships with our allies and 

our adversaries and our historical allies are very legitimate ones 

for people to consider. I share those views. But to go further than 

that, I think that is what I ought to add. 

Senator DURBIN. Let me ask you one last question. I guess my 

time is up. 

Chairman LEAHY. That is all right. 

Senator DURBIN. If I might ask one last question. This really relates to something close to home. Just last year, or earlier this 

year, I attended the funeral of a 13-year-old in the Logan Square 

neighborhood of Chicago. Her name was Shayna Gayden, playing 

at school and caught in the crossfire of a gang shooting. She was 

killed. It was a sad moment, attending that funeral service, memorial service. I think it’s imperative that we deny violent criminal 

gangs access to deadly weapons. After-the-fact prosecution is vital, 

but prevention is essential. 

If you’re confirmed, I want to know if you will make it a priority 

of the Department of Justice to, number one, ensure that violent 

criminal gangs cannot obtain deadly weapons, and number two, to 

make certain that those Federal firearms licensees who knowingly 

supply guns to gang members and other criminals are identified 

and stopped. 

Judge FILIP. Senator, I have been to those funerals and I have 

been in hospital waiting rooms with the families of law enforcement officers and children who have been killed, and at times almost worse than killed in terms of being put in comas that they— 

one friend of mine is still in years after that event happened. 

I think violent crime is a scourge on this country. It has horrible 

human consequences. Anybody who has ever been a violent crimes 

prosecutor, anybody who has ever been an emergency room doctor, 

particularly in places like Chicago, but anyone in the world knows 

that, I would give violent crime an absolute priority and do whatever I could to try to prevent those crimes. 

Senator DURBIN. And the Federal firearms licensees? 

Judge FILIP. They need to adhere to the law as well. Yes. I would 

try to help you on that issue. 

Senator DURBIN. It turns out a very small percentage of them 

are generating the weaponry that is killing these innocent people. 

There is a mindless crusade by some gun lobbies to keep that inforVerDate Aug 31 2005 08:45 Dec 09, 2008 Jkt 045667 PO 00000 Frm 00072 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45667.TXT SJUD1 PsN: CMORC
69 

mation from the hands of prosecutors. I cannot understand how 

anyone could, in good conscience, adhere to that. I hope, if you are 

approved for this spot, that you will have a different view. 

Judge FILIP. Thank you. 

Senator DURBIN. Thank you. 

Chairman LEAHY. Senator Sessions? 

Senator SESSIONS. Thank you. 

Well, you are, of course, right, Judge Filip, that the Attorney 

General has undertaken to do this and it would be really—we 

would have to question your judgment if you were to start opening 

from this table on matters that the Attorney General, your bossto-be, hopefully, is undertaking a review on. That’s just not appropriate and I’m sorry you were asked to answer those questions. You 

answered very, very well. 

I would just say to anyone that might be listening, we have had 

a very limited number, it appears, of incidents of waterboarding 

being conducted. There’s no evidence that it’s been used in the last 

several years. It was right after 9/11 and it was something that is 

under review today, and should be. I would note that American soldiers have had that technique utilized against them in order to prepare them for the things they might face if they’re captured. 

I would also note, and we need to make this very clear, that the 

U.S. military does not use these kinds of techniques. The U.S. military complies with the laws of war with regard to lawful combatants, and even beyond that to unlawful combatants. So it’s not our 

policy, it’s not being done. This repeated talk, and talk, and talk, 

I believe, has had a tendency to really damage the reputation of 

our military because they are so careful about these kinds of 

things. 

I would note that torture—the definition of torture is not 

waterboarding. The definition of torture, according to the U.S. Congress, and we passed title 18, section 2340—it says ‘‘an act committed under color of law that imposes severe’’—severe—‘‘physical 

or mental pain or suffering on someone.’’ That can’t be done to a 

captured, lawful soldier either. We have to comply with the Geneva 

Conventions. 

You have been asked a good bit about the right of congressional 

oversight, and we do have great powers in that regard. But having 

spent 15 years in the Department of Justice as a U.S. Attorney and 

Assistant U.S. Attorney, I served on the Advisory Committee of the 

U.S. Attorneys, came to Washington regularly, and I understand 

that there are legitimate executive branch powers, just as there are 

legitimate congressional powers. Are you prepared, if you take this 

office, to defend the legitimate powers of the executive branch, even 

if you have to deal with some of these fine Senators here? 

Judge FILIP. Yes, sir. 

Senator SESSIONS. You’ll have to say ‘‘no’’ sometimes. 

Judge FILIP. Yes, sir. I— 

Senator SESSIONS. Are you prepared to do that? 

Judge FILIP. I understand. 

Senator SESSIONS. The office of President is not President Bush. 

He’ll soon be out of office and cannot be reelected. Someone else 

will be President. The office of the presidency, the office, the execuVerDate Aug 31 2005 08:45 Dec 09, 2008 Jkt 045667 PO 00000 Frm 00073 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45667.TXT SJUD1 PsN: CMORC
70 

tive branch itself, does have legitimate powers and they should be 

rightfully defended. 

Now, let me ask you this. You’ve heard a lot of these questions 

about some arcane matters that are relatively important. Some of 

them are very small in real impact, the number of people impacted. 

Let me raise something to you that is not a small matter, and that 

is the question of creating a lawful system of immigration in America. We got so many phone calls, the entire switchboard system 

shut down here. That is not nativist talk, those were legitimate 

concerns by Americans that our government has not created a lawful system of immigration. 

We probably, according to estimates, had at least 500,000 enter 

our country last year illegally. We have arrested one million at the 

border. Would you say that those numbers and other things we’ve 

read about failures in the area of immigration enforcement, would 

you say that indicates that we have a failure of the rule of law in 

an important matter relative to the sovereignty of the United 

States of America? 

Judge FILIP. I think enforcing the immigration laws is essential, 

sir. Every one of my grandparents was an immigrant. I understand 

why people want to come to this country. It is an extraordinary 

place where someone like me, who has four grandparents who 

didn’t even really speak English a great deal in their home, can be 

sitting before you here today for the position of Deputy Attorney 

General. 

So, I understand why people want to come here. But this country 

doesn’t have an open borders policy. I appreciate that. There are 

laws. There are balances that have to be struck. This Congress 

strikes them. Part of the important mission of the Justice Department is enforcing those laws, and I agree with you. I think it is 

important. 

Senator SESSIONS. You would accept the statement then that the 

Department of Justice has a key role in seeing that these laws are 

enforced? 

Judge FILIP. Yes, sir. 

Senator SESSIONS. And as the Deputy Attorney General, will you 

commit to us that you will take steps to end the lawlessness and 

to lead us into a lawful system of immigration according to the best 

of your ability? 

Judge FILIP. I would seek to enforce all the laws, including, certainly, the immigration laws. Yes, sir. 

Senator SESSIONS. I would just say parenthetically, the reason 

we haven’t had a lawful system of immigration for the last 40 

years, maybe, is because the executive branch hasn’t wanted it. 

Congress has pushed it on any number of occasions, fitfully and not 

consistently, but no President has taken it upon himself, no Department of Justice, no Customs, Immigration agencies have taken 

it upon themselves to actually do what needs to be done and seek 

from Congress the assistance they need to make it happen. Will 

you call on Congress for help if you believe you need additional 

laws or additional funding to achieve this goal? 

Judge FILIP. Yes, sir. 

Senator SESSIONS. Tell me how you see the Department of Justice to be organized and your responsibility in it. What is going to 

71 

be the role of the Deputy in Attorney General Mukasey’s Department? 

Judge FILIP. The Deputy, as I understand it, sir, is the chief operating officer, or as you might say in Chicago, the guy who works 

the boiler room. It’s somebody who tries to keep things operating, 

all the divisions functioning within their lanes, trying to responsibly handle their areas of assignment and to resolve disputes within the Department between those branches, those units that are 

difficult disputes that otherwise can’t be resolved, and to try to ensure some issues are going to be important, sufficiently important, 

that they get directed to the Attorney General, and also to try to 

get those issues that can be resolved without bothering him, get 

those resolved short of— 

Senator SESSIONS. Well, I agree, having been in the Department 

and seen issues come up for the 12 years I was there, the very 

same ones every single year between the very same departments. 

Do you think you’re capable of making a firm and clear decision in 

deciding some of those issues? 

Judge FILIP. I think I’ve learned to do that as a judge. I would 

hope so. Yes, sir. 

Senator SESSIONS. Well, you should try. I won’t hold it against 

you if you haven’t been successful in all those things. Somehow 

they just continue to go on for years and years. 

With regard to immigration, there’s the project that the Department of Justice has done that does seem to be working, Operation 

Streamline, which takes—my time is up, I see, Mr. Chairman. Are 

you familiar with that operation and will you continue to support 

it, which basically says that if someone enters our border illegally, 

they will in fact be prosecuted? 

Judge FILIP. I’m somewhat familiar with it, sir. My understanding of it is that it’s been very successful. If that’s the case, 

I would certainly try to make sure that the Department is engaging 

in the most successful practices. Yes, sir. 

Senator SESSIONS. It’s working, apparently, dramatically well in 

the areas it’s being used. It’s not being used throughout the whole 

border. I hope you will consider employing those procedures 

throughout the border. 

Judge FILIP. Thank you, sir. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Chairman LEAHY. Senator Whitehouse? 

Senator WHITEHOUSE. Thank you, Mr. Chairman. 

Welcome, Judge Filip. Thank you for coming to my office the 

other day. I appreciated our discussion very much. 

Just one final word on the question of waterboarding, which has 

come up a great deal today. As important as the substantive question of waterboarding is, to those of us who find it self-evident that 

waterboarding is torture, the failure on the part of the Attorney 

General to, if I would say from my point of view, recognize the obvious, raises a couple of flags. One explanation is that it is lawyerly 

caution that is behind that, and that is understandable and legitimate, if substantively different from my conclusion. 

The other concern, of course, is that somebody got to him and he 

was told that this is an issue that you’re just going to have to play 

ball on. After what this Department has been through, we are 

72 

hyper-sensitive here to that concern, so I hope you appreciate 

where these questions are coming from. 

What I see before me is a man who loves and respects the Department of Justice, a man who served as an Assistant U.S. Attorney with considerable distinction, who served under both Republican and Democratic administrations, who was willing to move his 

family and give up a lifetime Federal judicial appointment, which 

is something that, as we know, many of our lawyer colleagues 

yearn for all their lives, in order to come back to Washington, in 

order to rally to this Department in its hour of need, even if there 

is only a year and change available. Am I mistaken in any of that? 

Judge FILIP. No, sir. I think the Department of Justice is unique 

in its role within the country in terms of trying to adhere to the 

rule of law and I think—I like being a judge a tremendous amount. 

I have wonderful colleagues. I was torn at the idea of leaving the 

bench, very much so. 

But if there is an opportunity to serve the Department and to 

make a contribution, notwithstanding the minuses on the scales, at 

the end of the day that’s what won out for me. If I get the chance 

to serve, I will try to add my name in a small place, on a very long 

list of people, many who are quite famous and many, many more 

who aren’t, who have tried to serve the country honorably in that 

role. That’s the only reason I’m here. 

Senator WHITEHOUSE. And could you comment just a little further, because I think we share this view but I’d like to have you 

share it here in this public forum, on what the role is of the Department of Justice as an institution in our country’s architecture 

of government? 

Judge FILIP. It’s elemental. You know, it’s an outdated phrase or 

an outdated phrase in terms of the language it chooses, but we are 

a Nation of laws and not of men. The Justice Department is fundamentally dedicated to that. I had the opportunity to serve as an 

Assistant U.S. Attorney in a place where people, without regard to 

any politics or any personal predilections about anything, joined 

arms and tried to make sure that the rule of law is observed and 

that people try to do the right thing. 

Doing ‘‘the right thing’’ is not a self-executing phrase. It takes 

people rolling up their sleeves and thinking hard about what that 

means in any particular instance, but it’s a great flag for the ship 

to fly under. In terms of the role of the Department, it’s to protect 

the civil rights of every individual, it’s to try to defend the law or 

apply criminal laws vigorously, while at the same time respecting 

the rights of the accused and taking appropriate respect for victims. 

The Department’s role is fundamental and it would be my singular privilege to help serve the people in what fundamentally is 

a family of people and law enforcement agents who try to make 

this country a better place, and I appreciate that. 

The people on the streets are the backbone of the Department, 

and the people who sit in suits and aren’t in a position where 

they’re going to get shot on a raid are not the most important people in the Department, but if I get a chance to be the person who 

would be the Deputy, I would try to be there for the people who 

73 

are the backbone and to try to serve consistent with those principles, because that’s what’s going to endure over time. 

Senator WHITEHOUSE. Let me suggest to you that one of the 

things that helps those principles endure over time is a battery of 

institutional safeguards that have been developed within the Department over many years for the specific purpose of protecting the 

extraordinary power that it has. We know the power that it has. 

There is no power like it within the continental United States, 

within the geographic United States. It is the power to break 

through someone’s door. It is the power to remove them from their 

homes and throw them behind bars. It is ultimately the power to 

put them to death. It is clearly the power to destroy reputations. 

The idea that that power would be infiltrated by political considerations is anathema to America, and yet we stand at a point 

where we look back at a Department where many of us believe that 

is precisely what has happened, and moreover that those very institutional safeguards that were built to protect from that were disassembled in order to allow it to happen. 

I would like to ask you to comment on some of these institutional 

safeguards generally, and then specifically I understand that the 

Attorney General will be, today, announcing that the fire wall between the White House and the Department of Justice that 

preexisted the Gonzales and Ashcroft administrations has been reestablished. I hope that is the case. If that is the case, thank God, 

it’s about time. 

The other specific one, in addition to the general question about 

the institutional safeguards, is the manual. Senator Feinstein, 

whose seat I am sitting in right now, noticed that in the earlier 

edition, this 1995 edition, it was stated quite clearly that Federal 

prosecutors and investigators should be extremely careful to not 

conduct overt investigations during the preelection period or while 

an election is under way, that most, if not all, investigation of an 

alleged election crime must await the end of the election to which 

the allegation relates, and that the Justice Department generally 

does not favor prosecution of isolated fraudulent voting transactions. 

In the new version, May 2007, all three of those written guidelines for prosecuting attorneys around the country were removed. 

I think they were caught doing it, and rather than fix it they took 

the offending language, took down the institutional safeguard, out 

of the manual. I would like to see that put back, because what the 

removal of that language does is to allow an ambitious U.S. Attorney to prosecute a case of an isolated, fraudulent voting transaction 

during the preelection period as an overt investigation in order to 

influence the outcome of that election. 

So that’s just one example. I would urge you to really do a thorough, like a ship captain would when you’ve had a wreck or a fire. 

You go back and you do a damage report. I would hope that it 

would be part of your tasking to yourself to say, what were these 

institutional safeguards, which ones were broken, and how do we 

put them back? To you. 

Judge FILIP. The traditions of the Department and the safeguards of the Department are essential and I would ensure to appreciate them and to apply them, both in fact and in word. I 

74 

worked in an office and in an area of prosecution in great part 

where any whiff or fact of partisanship would have fundamentally 

wrecked the mission and its integrity. If I am confirmed, on my 

watch there will be none of it, period. You have identified one important area to look at. There are others. The Honors Program hiring. That sort of partisan consideration that you alluded to, it won’t 

happen. 

Senator WHITEHOUSE. Let me ask you about one other thing. 

I just want to express my appreciation to the Chairman for letting me go on over my time. I’m grateful. 

I’ve recently had the chance, as a member of the Intelligence 

Committee, to review a variety of Office of Legal Counsel opinions. 

After considerable discussion with the DNI and with the Department, I’ve been able to have three legal propositions from those 

OLC opinions declassified so that I can discuss them publicly. 

I find them to be pretty dangerous propositions and out of kilter 

with what my understanding is of the basic principles of American 

law. One of them, I’d like to show right here: ‘‘The Department of 

Justice is bound by the President’s legal determinations.’’ It’s an interesting theory. If you applied it in a company, I suspect the general counsel who said that to the board of directors about the president would likely be run out of the shop. That’s probably malpractice, might even be unethical, to not be willing to stand by your 

well- considered and sincerely held legal determination as Attorney 

General of what the law, indeed, is. 

It hearkens back to that unfortunate interview of President 

Nixon with David Frost some years ago, where he said, ‘‘Well, 

when the President does it, that means it is not illegal.’’ That was 

no exactly a high moment for the rule of law in America. 

Would you care to comment on to what extent the Department 

of Justice, as an independent institution, must yield its view as to 

the law where the President has instructed it to go otherwise and 

whether your opinion changes if the question of the rule of law 

would potentially involve peril to the President or his or her administration? 

Judge FILIP. My assessment of the law would be my assessment 

of the law without regard to where it let me—led me. And if the 

administration or anyone, including the Attorney General, were not 

able to be persuaded and were to engage in something or direct 

upon a course that I believed to be inconsistent with the Constitution, I would resign and I wouldn’t hesitate to do that. 

Senator WHITEHOUSE. I will just say, it made me sick to my 

stomach when I was sitting there and that phrase jumped off the 

page at me. I think it is the job of the Department of Justice to 

tell the President what the law is, and not vice versa. 

The last question that I have for you, I’m asking at the behest 

of my colleague from Florida, Senator Bill Nelson. He is not on this 

committee, but he has a matter that concerns him very greatly because he has a constituent, Jamie Lee Jones. Well, actually she’s 

from Texas. There’s another constituent. His constituent and Ms. 

Jones from Texas share a story. As Americans, they traveled 

abroad. They were paid—what’s the word I’m looking for? Not consultants, but contractors in Iraq. 

75 

They were working for Halliburton KBR, or Halliburton KBR 

subsidiaries. They were subjected to rape, in some cases gang rape. 

The rape kit, which was in the custody of the company, has evidently disappeared and the women are concerned that there appears to be no considerable effort of any kind to follow this to its 

proper prosecutive conclusion. 

I was wondering if you have any thoughts on where the Department would go. Are you familiar with the allegations involving illegal abuse against Americans by contractors in Iraq, and how would 

you expect to handle this as Deputy Attorney General? 

Judge FILIP. I’m not familiar with it. Obviously, any crime of 

that nature is of the utmost gravity. I don’t know. The judge in me 

would want to sort out the jurisdictional area, but if there was a 

rape within the purview of the Justice Department, it would have 

appropriate high priority to be prosecuted, absolutely. 

Senator WHITEHOUSE. And I hope you would come quickly back 

to us if you felt that there was a jurisdictional problem and that 

the United States’ writ did not lie with respect to an American 

overseas, where employees of an American company, who are also 

Americans, had apparently drugged and raped—allegedly drugged 

and repeatedly raped—this individual and actually held her in a 

container for 24 hours, according to her allegations, before she was 

allowed to be released back to the United States, which happened 

only because she was able to get her hands on a cell phone and call 

her Congressman, who was able to break through. It’s a pretty sordid story. If the writ of the Department of Justice does not run in 

that situation for any reason, we would like to know about that 

right away. 

Judge FILIP. Of course. Of course. 

Senator WHITEHOUSE. Of course, the fact that Halliburton is an 

enormous contractor to the government and has been closely engaged with significant political figures obviously raises some additional hackles when evidence appears to have disappeared and an 

American appears to have been abused, when there appears to 

have been literally no effort to get to the bottom of it. 

Judge FILIP. I understand. And if there’s been any incidents of 

a rape allegation anywhere, it’s a very serious allegation and 

should be pursued vigorously. 

Senator WHITEHOUSE. I know Senator Nelson would appreciate 

that. I’m asking these questions on his behalf because of his really 

deep concern about this problem for his constituent. 

Mr. Chairman, thank you very much. I want to just close briefly 

by telling the judge that I truly wish you well, like I think all of 

my colleagues, who are very concerned about the present state of 

the Department, and we are here, available to listen and to work 

with you to do anything necessary to put the Department back on 

its feet. 

My compliments to you for having come to this position and 

being willing to assume these responsibilities. My compliments to 

your wife. Beth, for being willing to undertake all of the upheaval 

that this move will require, and my remarkable compliments, as 

the father of a 14-year-old boy, to Matthew, Tommy, Charlie, and 

Joe for having sat quietly and still through this long, and from 

76 

their point of view very tedious, proceeding. But it has been very 

important for all of us and I appreciate you being here. 

Judge FILIP. Thank you very much for those kind words. 

Senator WHITEHOUSE. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

We’ll take a 5-minute break. I’m just going to make sure that 

there are not other Senators who want to ask questions. Then 

within a few minutes we’ll be wrapped up. We’ll take a 5-minute 

break, during which your four sons can run hollering up and down 

the halls if they want. Thank you. 

Judge FILIP. Thank you, Chairman. 

[Whereupon, at 12:05 p.m. the hearing was recessed.] 

AFTER RECESS [12:12 p.m.] 

Chairman LEAHY. I think we’re going to wrap up fairly soon. I 

know Senator Whitehouse had a couple of more questions. Why 

don’t I yield to you, and then I have a final question. 

Senator WHITEHOUSE. I thank the Chairman. 

Judge Filip, these are not so much questions as they are, I just 

want to make a request to you and make a record in these proceedings. In addition to the proposition that the Department of 

Justice is bound by the President’s legal determinations, there 

were two other legal statements that leaped off the page of those 

OLC opinions at me that I considered to be inconsistent with 

American law and constitutional structure, and I just want to mention them to you so you know what they are. I’d like to have you 

take a look at them once you become the Deputy Attorney General. 

My sense is that for a while the inmates were allowed to take 

over the asylum at OLC, and it may be time to go back and take 

a look at some of the statements that were left in these opinions, 

because as you know, OLC has a tradition of precedent of its own 

and I wouldn’t want these to become the evil seed that grows into 

a true constitutional problem down the road. 

One, is this: ‘‘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.’’ 

In my view, what that allows is for there to be a public executive 

order that purports to control a particular program or activity and 

a program or activity that is operating in flagrant and complete 

violation of that executive order at the same time without any disclosure ever, without going back to the executive order and amending it nunc pro tunc without anything. I don’t think that is what 

executive orders are for. I don’t think that’s the way the American 

government should work. I think it creates an opportunity to use 

executive orders not to control government, but to mislead the 

American people. I’d like you to take a look at that one. 

The other is this one. We know there’s been a mania about Article 2 recently. This one says, ‘‘The President exercising his constitutional authority under Article 2 can—the President’s authority 

under Article 2.’’ You’ve heard the phrase, trying to pull yourself 

up by your own bootstraps? That seems to be an exercise in trying 

to lift yourself by your own bootstraps and it seems to fly very diVerDate Aug 31 2005 08:45 Dec 09, 2008 Jkt 045667 PO 00000 Frm 00080 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45667.TXT SJUD1 PsN: CMORC
77 

rectly in the face of Marbury v. Madison, which is a fairly core decision in our jurisprudence. 

It is emphatically—that’s the word in the case, ‘‘emphatically’’— 

the province and the duty of the judicial department to state what 

the law is. So the idea that a President has Article 2 authority to 

make his own determination as to what his own Article 2 authority 

is, is a proposition I would like to see reexamined with cooler heads 

in place. 

I appreciate your attention to those two things. I’m not going to 

call you on it now, but I wanted to take this opportunity to put 

them out there as markers, because I think it is important to pull 

back from what I consider to be some rather extreme points of 

view. 

I appreciate it and I thank the Chairman for the additional time. 

Chairman LEAHY. Thank you. 

Judge, thinking back on all the questions you’ve been asked 

today and the answers you have given, sort of in the area of torture 

and others, are there any answers you wish to change or elaborate 

on? 

Judge FILIP. Nothing I would change. I would just say [off mic]— 

Chairman LEAHY. I’m sorry. Could you start again? 

Judge FILIP. I’m sorry. I apologize, sir. 

Chairman LEAHY. That’s all right. 

Judge FILIP. Nothing I’d wish to change. I’d just like to say that 

I appreciate very much that we have service members around the 

world, oftentimes in very vulnerable positions. I understand that 

what we do, to use a midwestern phrase, what goes around comes 

around, and that we have to be very mindful of that. I also acknowledge that what we do as a Nation has serious consequences 

in terms of how we interact with other nations in the world, including our enemies, including our friends, including our historical allies, and I think that is a very important consideration in this area. 

And to underscore that if I am confirmed, I certainly would offer 

as frank and candid of legal advice to the Attorney General if he 

asked my views on this as I have throughout my career on anything else without regard to what that answer was, whether I 

thought it was something that he would find pleasing or not, and 

I would engage him in a thoughtful manner to try to convey my 

views to him. 

Chairman LEAHY. I would hope, also, you would think about the 

fact that our Nation, our great Nation, has gone through civil war, 

two world wars, has tried to come out stronger and better each 

time. It’s a Nation that certainly attracted my grandparents when 

they came here from Italy, and my great-grandparents when they 

came from Ireland, and my wife’s parents when they immigrated 

to this country. 

These ideals have allowed us a lot of slack around the world, and 

justifiably so. During the Cuban missile crisis, the story is told 

where President Kennedy wanted President Charles de Gaulle to 

be briefed on what was happening. He sent Dean Acheson to Paris 

to meet with de Gaulle. Acheson said, ‘‘I have these aerial photographs that we’ve taken to demonstrate what President Kennedy 

has said, that the Soviet Union has placed missiles in Cuba. I am 

here to show them to you.’’ 

78 

He was stopped by de Gaulle who said, ‘‘The President of the 

United States has said that’s what has happened. His word is good 

enough for me.’’ That is not the reaction we would have today in 

many parts of the world. We want to get back to that. We also 

wanted to work with a lot of countries that are becoming democracies and to demonstrate to them, this has worked for the wealthiest, most powerful Nation on earth, these values, you do them, too. 

We see in the news the situation in Nicaragua, where an appeals 

court has said that they should release a prisoner that probably 

was falsely convicted of a heinous crime, and the lower court judge, 

because it would be unpopular, won’t sign the orders to release 

him. First, the court judge said, I didn’t get to court because I had 

a flat tire. Then the papers were miscollated, and on and on. 

It’s easy for us to say, well, of course the lower court would have 

to follow such an order from their supreme judicial court, but we 

have got to be able to, in holding when our American ambassador 

or consulate goes to that government and says, obey your law, we 

don’t want them to say, well, do you obey yours? This is a matter 

that is—and I don’t say this as a partisan. I’ve been very proud to 

serve in this Senate for 33 years. But I am very, very concerned 

of what I am seeing in this lack of trust in the United States 

around the world. 

I want to see it reinstated. Whether we elect a Republican or 

Democratic President next year, I hope that whoever it is will reintroduce this to America. You, the Justice Department, the Congress, all our institutions are going to have to work at restoring 

that trust. Trust, once lost, takes a long time to regain. 

With that, I will keep the record open should there be further 

questions, unless you have something else you want to say, Judge? 

Judge FILIP. I’m very grateful. I appreciate that a lot of people 

here have been up very, very late and that they have loved ones 

and family members who want them home for the holidays. I’m 

very grateful for you giving me this opportunity. Thank you. God 

bless you all. Thank you very much. 

Chairman LEAHY. Thank you. 

We stand in recess. 

[Whereupon, at 12:20 p.m. the committee was adjourned.] 

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

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