[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
U.S. DEPARTMENT OF JUSTICE
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
JULY 23, 2008
__________
Serial No. 110-197
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
C O N T E N T S
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JULY 23, 2008
Page
OPENING STATEMENTS
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Chairman, Committee on the
Judiciary...................................................... 1
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Ranking Member, Committee on the Judiciary. 2
WITNESSES
The Honorable Michael B. Mukasey, Attorney General of the United
States, U.S. Department of Justice
Oral Testimony................................................. 4
Prepared Statement............................................. 6
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary..................................... 118
Prepared Statement and Questions of the Honorable Maxine Waters,
a Representative in Congress from the State of California, and
Member, Committee on the Judiciary............................. 139
Letters to the Honorable Michael B. Mukasey, Attorney General of
the United States, U.S. Department of Justice, from the
Honorable John Conyers, Jr., a Representative in Congress from
the State of Michigan, and Chairman, Committee on the Judiciary 145
Letter to the Honorable Michael B. Mukasey, Attorney General of
the United States, U.S. Department of Justice, from the
Honorable Sheila Jackson Lee, a Representative in Congress from
the State of Texas, and Member, Committee on the Judiciary..... 152
Post-Hearing Questions posed by the Honorable Maxine Waters, a
Representative in Congress from the State of California, and
Member, Committee on the Judiciary; and the Honorable Lamar
Smith, a Representative in Congress from the State of Texas,
and Ranking Member, Committee on the Judiciary................. 154
U.S. DEPARTMENT OF JUSTICE
----------
WEDNESDAY, JULY 23, 2008
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:24 a.m., in
Room 2141, Rayburn House Office Building, the Honorable John
Conyers, Jr. (Chairman of the Committee) presiding.
Present: Representatives Conyers, Nadler, Scott, Watt,
Lofgren, Jackson Lee, Waters, Delahunt, Wexler, Sanchez, Cohen,
Sutton, Sherman, Schiff, Davis, Wasserman Schultz, Ellison,
Smith, Coble, Gallegly, Goodlatte, Lungren, Cannon, Keller,
Issa, Pence, Forbes, King, Feeney, Franks, and Gohmert.
Staff Present: Elliot Mincberg, Majority Chief Oversight
Counsel; Robert Reed, Majority Oversight Counsel; Renata
Strause, Majority Staff Assistant; and Crystal Jezierski,
Minority Counsel.
Mr. Conyers. The Committee will come to order. We have
before us the Attorney General of the United States, and
perhaps for the last time in the 110th session. His
responsibility is that of enforcing our Federal criminal laws,
protecting voting rights, protecting us against foreign and
domestic terrorism, enforcing the antitrust laws, the
bankruptcy laws, the intellectual property laws, and
immigration laws, as well as representing the Government in
civil cases.
First, and perhaps most important, I believe we have not
seen enough cooperation concerning voting rights. The regular
meetings on voting rights that I thought would happen between
the Judiciary staff, bipartisan in nature, and the Department
of Justice staff, have not happened and have not been effected.
As we sit here today, probably a hundred days before the
election, we don't know specifically how our Government will
respond to the practices that made the elections of 2000 and
2004 so problematical and so controversial, how we will respond
to deceptive electioneering practices. Now this is the highest
order of responsibility between the Department of Justice and
the Judiciary Committee because we are going to be responsible,
not just the outgoing Attorney General and the Department of
Justice, but the House Judiciary Committee is going to be held
accountable for what we did or didn't do in trying to make sure
that many of the deceptive electioneering practices are stopped
and not just punished after the fact but that we do something
about it preemptively. How can we ensure voting machines are
fairly allocated, how monitors will be deployed, how we will
respond to voter caging schemes, and avoid some of the terrible
mishaps of 2000 and 2004.
In addition to the serious problems in those elections, we
have seen numerous other voting problems, the approval of
troubling redistricting plans in Texas and Georgia.
This Committee and everyone on it has responsibility for
these 2008 elections. We have a hearing on voter rights and the
2008 election tomorrow. The Department of Justice, to this
moment, doesn't have anybody committed to coming to that
hearing. Chris Coates, the head of the Voting Section, hasn't
agreed to come before us. We are hoping that that can be
remedied between now and tomorrow.
Now we have been trying to get key members of the Bush
administration before us. They have refused. Harriet Miers and
Josh Bolton have refused to cooperate in the contempt
proceedings. And why? Because the Department of Justice
publicly has said they are not going to enforce a subpoena
against these, the President's lawyer and the President's Chief
of Staff.
This Department, Department of Justice, continues to
validate the unprecedented concept of total immunity for high
ranking officials. For example, Karl Rove. Last week, they
oddly argued that non-grand jury statements given to Federal
prosecutors were somehow privileged when it came to Congress.
We have been waiting months and months to obtain critical
documents relating to the selective prosecution, obstruction of
justice, the secret OLC opinions advocating expansive theories
of presidential power that strike at the very core of our
constitutional freedoms. With less than a hundred or so days
remaining before the election and 6 months before the
Administration ends, this delay is unacceptable.
I am sorry to say that the Attorney General has continued
the unfortunate tradition of refusing to appoint a single
special prosecutor for any of the evidences of misconduct that
would require the Department of Justice to bring in outside
counsel.
Every Member of this Committee wants the Attorney General
and this Department to perform its mission fully, and it is
more important now than ever before with the world getting
smaller, the global considerations, the military actions that
still go on. I hope that we are going to be able to conclude
our relationship, Mr. Attorney General, in a way that we get
some of these matters resolved and not that they were left
hanging as we brought the 110th session to an end.
We have got a big need for a lot of information, and I am
hoping that today will lay the groundwork for us to begin to
accomplish as much of this as is possible.
I now recognize the Ranking Member, Lamar Smith, for his
comments.
Mr. Smith. Thank you, Mr. Chairman. Attorney General
Mukasey, thank you for appearing before the Committee for the
second time, perhaps for the last time in this Administration,
to discuss the important work of the Department of Justice. We
appreciate your doing so.
Mr. Chairman, there are many important subjects the
Committee could focus on in its oversight efforts today. For
example, we could make this a very productive hearing by having
this Committee take immediate action to address habeas corpus
concerns following the Supreme Court's recent ruling of
Boumediene v. Bush. On Monday, the Attorney General outlined
the significant problems law enforcement officials now face as
a result of that ruling. It is now the responsibility of this
Committee to act.
In its decision, the Supreme Court opened a Pandora's Box
and the Attorney General has made it clear that only Congress
can close the lid by enacting clear rules regarding the
detention of known terrorists. If this Committee fails to act,
Federal courts may order the Government to release known
terrorists. There are more than 200 detainees remaining at
Guantanamo Bay, and many of them wish to kill as many innocent
Americans as possible. If this Committee fails to act,
sensitive intelligence on terrorists may be disclosed and
terrorists will know better how to evade detection and conceal
future plots. If this Committee fails to act, known foreign
terrorists will be able to forum shop in the most favorable
places to bring their claims, both in the Federal district
courts and in the Court of Appeals for the D.C. Circuit, in a
way even domestic American criminals cannot.
The Attorney General has told us what common sense tells
us, we must commit ourselves to the development of a
legislative proposal that provides clear guidance on the
detention of known terrorists. We must act. We must act
responsibly, and we must act quickly.
Another area where Congress can assist the Department is in
protecting America's children from sexual predators and cyber
criminals. Nameless, faceless criminals use the World Wide Web
as their virtual hunting ground. Child exploitation, child
pornography and cyber bullying are just a few of the 21st
century crimes threatening our children today.
A simple step Congress can take to enhance our crime
fighting efforts is to require the retention of certain
subscriber records by Internet providers. This Committee must
pursue this and other innovations if we have any hope of
keeping pace with crime in the cyber age.
One of the areas where there already is bipartisan
agreement is in confronting and deterring criminal activity in
the arena of intellectual property theft. We should help
advance the legislative efforts of this Committee, including
the Prioritizing and Organization for Intellectual Property Act
of 2008, which passed the House overwhelmingly in May, to
enhance IP enforcement efforts.
Also, I am pleased with the Department's recent work to
support DHS immigration enforcement efforts by increasing
prosecutions and available prison bed space. For too many
years, illegal immigrants knew that they faced absolutely no
penalty if they were apprehended along the southern border,
other than a quick bus ride back across that border. They had
every reason to try to enter again and again until they
eventually succeeded, as 90 percent of them did.
The Justice Department's Operation Streamline for the first
time has put an end to this revolving door. We have too much at
stake to shy away from enforcing the law and ensuring that
individuals entering the U.S. do so illegally.
Mr. Attorney General, I appreciate the tireless dedication
to the men and women of the Justice Department, and look
forward to working together with you to keeping Americans safer
in the future.
I yield back.
Mr. King. Mr. Chairman, would you yield to a brief
colloquy?
Mr. Conyers. Absolutely not.
The Attorney General brings a long, distinguished
background to the Department of Justice. He has been a
practicing attorney, a Federal prosecutor, a member of the firm
of Patterson, et al., a trial judge since 1988, and was
appointed by President Reagan as a trial judge for 18 years; 6
of those were as Chief Judge of the District. He retired in
2006, was called back by President Bush, confirmed as the
Attorney General in the fall of 2007.
We have your statement, sir, and it will be put in the
record in its entirety, and all the Members will have an
opportunity to add their own opening statements to welcome you
here. Thank you so much.
TESTIMONY OF THE HONORABLE MICHAEL B. MUKASEY, ATTORNEY GENERAL
OF THE UNITED STATES, U.S. DEPARTMENT OF JUSTICE
Mr. Mukasey. Chairman Conyers, Ranking Member Smith, and
Members of the Committee, I thank you for the opportunity to
testify here today. Since I appeared before this Committee
almost 6 months ago, I have become even better acquainted with
the talented and dedicated professionals at the Justice
Department and with the work that they do, and have come to
appreciate that much more deeply, their service to our Nation.
I have now been Attorney General for slightly more than 8
months. During that time, there have been moments of
disagreement with Members of the Committee, as there always
will be. There are policy initiatives that the Department
supports, that some Members vigorously oppose, and policy
initiatives that some of you support, that the Department
opposes.
There are also situations where the interests of the
executive branch and of the legislature are on tension. This is
not, as some people have suggested, evidence of a broken or a
flawed political system. It is part of the genius of the design
of our Constitution, which embodies a robust separation of
powers. Although these tensions will never disappear, there are
many areas of agreement in which we can work together on behalf
of our common clients, the American people.
I would like to outline briefly two areas that I will focus
on during the 6 months remaining in this Administration. First,
with the first post-2001 transition looming, we must take every
step to ensure that custody and responsibility for our Nation's
security is transferred smoothly to a new set of caretakers.
That means putting national security measures on a sound
institutional footing so that the next Attorney General and the
new Administration will have in place what they need to
continue to assure the Nation's safety.
Two weeks ago, Congress took a vital step in passing the
FISA Amendments Act of 2008, bipartisan legislation that will
give our intelligence professionals critical long-term
authorities to monitor foreign intelligence targets located
overseas.
Earlier this week, I called upon Congress to take another
step by passing legislation to address the questions about
detainees unresolved by the Supreme Court's recent decision in
Boumediene v. Bush. Congress and the executive branch are in a
far better position than the courts to create practical
procedures and rules to govern the habeas hearings required by
the Supreme Court, procedures and rules that would both give
the detainees what they are due, what process they are due, and
accommodate the grave national security concerns involved.
In my speech earlier this week I outlined six principles
that should guide such legislation, and I look forward to
working with you and your colleagues on both sides of the aisle
and in both Houses of Congress to address these important
issues promptly.
Second, as everyone knows, the election season is upon us.
Although State and local governments have primary
responsibility for administering elections, the Justice
Department must make every effort to help assure that the
elections run as smoothly as possible and, equally important,
that the American people have confidence in the electoral
process.
The Department will maintain a significant presence
throughout the election season through both outreach and
monitoring. We will work closely with civil rights group and
State and local officials to identify and solve problems. We
will publicize telephone numbers and Web sites through which
people can bring potential issues to our attention, and on
election day we will deploy hundreds of observers and monitors
around the country.
These steps will supplement our ongoing efforts both to
enforce laws, including the Voting Rights Act, designed to
guarantee access of all Americans to the ballot, and to enforce
laws, including those prohibiting voter fraud and campaign
finance abuse intended to safeguard the integrity of the voting
process.
All these efforts are essential in ensuring elections
reflect the will of the people and in maintaining the
confidence of all Americans in our system of Government. In all
of this we will be driven by what the law and the facts
require, and only by that.
In fact, I have said many times both to members of the
public and to Department employees, that we must pursue all of
our cases in that manner. I have also said many times that we
must hire our career people without regard for improper
political considerations. I have acted and I will continue to
act to ensure that those words are translated into reality.
I am well aware of the allegations that politics has played
an inappropriate role at the Justice Department. Too many of
those allegations were borne out in a recent report by the
Department's Offices of Inspector General and Professional
Responsibility on hiring for the Honors Program and for the
Summer Law Intern Program. Even before I became Attorney
General last fall, however, the Justice Department had taken
many significant steps to remedy the problems that existed. I
have since taken several additional steps, and we will continue
to take any and all steps that are warranted. It is absolutely
crucial that the American people have complete confidence in
the propriety of what we do, and I will work to make certain
that they can have such confidence.
Mr. Chairman and Members of the Committee, I thank you for
the opportunity to make these remarks and I look forward to
answering your questions. Thank you very much.
[The prepared statement of Mr. Mukasey follows:]
Prepared Statement of the Honorable Michael B. Mukasey
Mr. Conyers. The Chair recognizes the Chairman of the
Subcommittee on the Constitution, Jerry Nadler of New York.
Mr. Mukasey. Mr. Chairman, I don't mean to raise a matter
that is none of my business, but I haven't been placed under
oath. Did you want me to take an oath?
Mr. Conyers. No, I did not require that.
Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chairman. I have a number of
questions, and I hope we can be brief. The first one is: When
you last appeared before this Committee, sir, you stated that
you could not order an investigation into interrogation
practices that have been authorized by the OLC opinions because
it would not be fair to infer any possibility of criminal
intent to someone who is following an OLC legal opinion. But it
is now clear that one of the detainees, Abu Zubaydah, for
example, was interrogated for months in the spring and summer
of 2002, before the first OLC opinion and the issue we know of,
the August 1, 2002, legal memo by John Yoo was issued.
Attorney General Ashcroft testified last week he did not
recall providing legal advice on interrogation methods at that
time and did not recall whether anyone else at the Department
had provided such advice. Now given the uncertainty about
whether any legal advice had been provided before these
interrogations, have you or anyone at the Department
investigated the legality of the interrogation methods used
before the August 1 Yoo memo was issued?
Mr. Mukasey. I have not investigated that myself. I think
part of that question involves whether the methods employed
were consistent with that memo or not, and I don't know whether
they were or they were not.
Mr. Nadler. Do you think someone should take a look at
that?
Mr. Mukasey. I think a look at that may very well be taken
or have been taken. I am not specifically aware of it as I sit
here.
Mr. Nadler. Can you let us know?
Mr. Mukasey. I will take a look.
Mr. Nadler. Thank you.
Now one other thing. The Committee has issued a subpoena
for all unclassified OLC opinions on issues of national
security and presidential power that have not previously been
released. The Department has refused to provide these
unclassified opinions to the Congress. Can you tell us why we
can't get those unclassified opinions?
Mr. Mukasey. Without getting into any particular opinions,
there are two considerations that relate to OLC opinions. One
has to do with classification. Unclassified opinions. OLC
opinions are there because somebody has come to the Department
for advice. They have come to the Department for advice before
they act. Part of maintaining a deliberative process is being
able to assure them that they can come to the Department, ask
for advice, and get it without----
Mr. Nadler. Excuse me. That is in effect a claim of
executive privilege. That is the executive privilege.
Mr. Mukasey. It is not really the executive privilege. It
is a deliberative privilege, if you wish to call it that.
Mr. Nadler. So you are asserting a new privilege other than
executive privilege?
Mr. Mukasey. I am not asserting a new privilege. I am
explaining that deliberative process is part of what you may
call executive privilege, what I think is actually something
separate, but in any event is one of the kinds of information
that is protected from inquiry on the outside, and for good
reason.
Mr. Nadler. Whatever the good reason, and I don't want to
debate the reason, but if it is not protected against a
subpoena by executive privilege, what is the legal authority
for not giving it to Congress once subpoenaed?
Mr. Mukasey. I believe that we are authorized to keep in
confidence requests for advice and the advice that we give as
counsel as part of a deliberative privilege, as part of
essentially an attorney-client relationship, and for other good
sound reasons that I am sure you can understand. We want people
to come for advice. We don't want them to act without it.
Mr. Nadler. I understand the reasoning. I do not agree, and
I would ask you to provide to this Committee, the legal
authority. I do not agree that there is any privilege other
than executive privilege. The executive privilege must be
claimed by the President. The President is not the client of
the Attorney General, he is the client of his own counsel. The
Government is, the American people is the client of the
Department of Justice. So I do not see any ground for
withholding the subpoena.
Let me go on. I ask you to provide the Committee with the
legal basis for this.
Mr. Mukasey. Basis additional to the basis I have already
articulated?
Mr. Nadler. With some citations.
We know many States now, going back to the Chairman's
comment, are preparing a purge list of voters, list of people
who shouldn't be allowed to vote because pursuant to the laws
in the States they are felons or whatever. We also know that in
Florida, for example, in 2000, such a list was prepared by a
commercial vendor. We know that there was a 20 percent error
rate. We know that they knew there was a 20 percent error rate,
which means they knew one out of five people prevented from
voting would be legitimate.
What is the Department doing to oversee to make sure that
States cannot do that again; that the purge lists that are
being prepared do not disenfranchise many legally eligible
voters?
Mr. Mukasey. Very broadly and then very narrowly. The
Department has been working with State and local authorities to
make sure that they conform with the requirements of all
Federal voting laws and that they conduct their activities in a
responsible way. That said, there is always available, and we
are making certain of this, the alternative for everyone one
who feels that he or she has been improperly denied the right
to vote, challenged in trying to exercise the right to vote, to
nonetheless cast a provisional ballot, and we are making
certain that people are aware of that.
We are doing outreach to civil rights groups to make
certain that people are aware of that because that is, as it
were, a failsafe against the kind of practice that you just
described. I don't know whether it happened, I don't know what
the source of that is, but assuming that happened, that is the
ultimate failsafe.
We have been in communication with State and local
authorities and we have an extensive training program from our
own people to make sure that doesn't happen again, if in fact
it happened.
Mr. Nadler. Thank you. I see my time will expire. The
Chairman will admonish me shortly.
Mr. Conyers. Lamar Smith.
Mr. Smith. I have a couple of questions about the
Boumediene v. Bush Supreme Court case. When the Supreme Court
issued its ruling, Judge Lamberth, the chief judge of the
Federal District Court in D.C., took the unusual step of
issuing a news release saying that he hoped Congress would
respond and address some of the questions raised by that case
sooner rather than later.
My question is: Do you feel that it is urgent that Congress
act quickly to address some of the questions raised by that
case?
Mr. Mukasey. I do feel that it is urgent. Actually, he
issued the statement after the speech I issued urging
legislation. I do feel that it is urgent. I outlined reasons in
a 20 or 25-minute speech why it was urgent, and urged that six
principles inform any legislation. But I was not drafting
legislation. What I was urging was that Congress step up and do
it.
Mr. Smith. What are some of the unintended consequences of
that ruling? Why is there a sense of urgency? Without getting
into the principles, but what are the risks involved?
Mr. Mukasey. The ultimate risk is--because the ultimate
decision finder has to be able to direct release, the ultimate
risk is that one of these folks could be released in the United
States and that is something that we think has to be prevented.
Secondly, there is a matter of national security. Much of
the evidence against the people at Guantanamo, both those
charged with war crimes and those we are simply holding because
they are detainees, comes from classified information. We need
to protect how that information is used, who has access to it,
and who doesn't.
Third, there are--as I said, some of them are going to be
put on trial for war crimes and we have to make sure that
habeas proceedings are not used as a way of delaying the onset
of military commission trials, any more than a United States
defendant charged with a crime has a right to file a habeas
proceeding before his trial. No U.S. defendant has that right.
We don't think these folks should be given that right.
We think that Congress should reaffirm that we are in fact
involved in an armed conflict and that there is a right to
detain enemy detainees. There is a separate question of whether
those people are guilty of war crimes or not. That is a whole
separate thing. But detention is an absolute, and it is
something that there has to be firm authority for. We think
there is, but we think it wouldn't hurt to reaffirm that.
Congress, I think, should establish sensible streamlined
procedures that strike a reasonable balance between a
detainee's rights to information and to present a case, which
the Court said he had to have, as well as practicality. The
word ``practical'' appeared numerous times in the Supreme Court
decision. But they stopped far short of articulating the exact
procedure that should apply.
Finally, we asked that Congress make sure that detainees
could not pursue remedies other than habeas corpus. As it
stands now, they have kind of a two-track system. They have
what are called the CSRTs, the Combatant Status Review
Tribunals, and review of those in the D.C. Circuit, and then
they have the habeas petitions. We think in view of the
requirement of habeas, that the CSRT system and appeal to the
D.C. Circuit should be cut off completely and simply rely on
habeas proceedings that are properly cabined in the way I have
suggested. That is a rough outline.
Mr. Smith. Thank you, Mr. Attorney General. Let me go back
to your first two points. The first was that some of these
individuals might be released. As I understand it, there are
some known terrorists that are now being held at Guantanamo
Bay. Are you saying if we don't act expeditiously that some of
those terrorists might be released?
Mr. Mukasey. There is always that possibility. So far it
obviously hasn't happened, and so far I want to commend the
D.C. District Court for the preliminary steps that it has
taken, including having by and large one judge, although there
are one or two other judges who are going ahead, but one judge
principally organizing things procedurally so they proceed in
an orderly way.
But if somebody decides they want to bring somebody here
either to testify on his own or in somebody else's proceeding,
there are additional rights that that person has simply by
virtue of landing on American soil, and recall that these are
all aliens. None of them has a right to be here. We don't want
that to happen inadvertently and then have the outcome of a
habeas petition be that somebody has to be released, and if he
is on American soil, he gets released here. That we think would
be the worst outcome, and we are trying to avoid that, and we
think it can be avoided with legislation.
Mr. Smith. Thank you, Mr. Attorney General. Thank you, Mr.
Chairman.
Mr. Conyers. The Chairman of the Crime Subcommittee, Bobby
Scott.
Mr. Scott. Thank you, Mr. Chairman, and thank you, Mr.
Attorney General, for being with us today. I had a couple of
questions in the area of the criminal justice system. First, in
reference to the housing crisis, it appears to me that with the
billions of dollars that has been lost, somebody has made a lot
of money to a large extent, in my opinion, through criminal
fraud. We are going to try to get a briefing from the Justice
Department on this in detail. But could you just say a quick
word about whether or not in your view crimes were committed
that helped perpetuate the crisis that we are in?
Mr. Mukasey. Without wishing to convict anybody before
trial, we have so far charged more than 400 defendants in
connection with the mortgage crisis that you mentioned, ranging
up the scale from the people who are overvaluing houses, the
people who are over-assessing houses, the banks that are
purposely closing their eyes to that, the rating agencies, up
to two promoters of a hedge fund who are charged with
essentially criminally overlooking the fact that the paper they
were selling the public was worthless.
There are 42 separate FBI task forces devoted to fighting
that problem, but it is a problem that runs the gamut that I
tried to describe. We have got over 400 defendants charged so
far, and the investigation is certainly by no means closed. It
is in full pace.
Mr. Scott. Thank you. Another issue here, there are several
bills pending with the problem of gangs. One I have introduced
takes a proactive approach to try to keep young people out of
trouble to begin with. Other legislation essentially, in my
judgment, waits for young people to join a gang, mess up, get
caught, and get over charged with crimes. We already lock up
more people in the United States than anywhere else on earth.
My question is: Your Web site actually, the Department of
Justice Web site, sites under the category of what works many
approaches that seem to be consistent with the Youth Promise
Act that I have introduced. We don't have time now, but could
you provide in writing any analysis that you may have done on
what works and what doesn't work and how we ought to be
addressing this, and any analysis or help you might have to do
as we evaluate the different approaches?
Mr. Mukasey. I think what works is a comprehensive
approach. There is no one particular solution. What we try to
do is to focus our efforts along with State and local
governments, along with other agencies in both enforcement;
that is, we use the task force approach to enforcement and we
also use weed and seed programs and other community outreach
programs.
I was just present last night at a privately funded
competition, essay competition that was competed in by more
than 120,000 youngsters on the subject of community violence.
We are active in that. We help fund that. So we believe firmly
that this requires a comprehensive approach. In the end, we are
principally a law enforcement organization. But we do recognize
the need for a comprehensive approach. We favor that. We do
prevention.
Mr. Scott. If you have done any in-depth analysis and can
provide guidance on that, that would be helpful.
My next question is with regard to the Federal prisons. We
recently had to appropriate money in a supplemental
appropriation to deal with what we believe to be a crisis in
personnel in prisons. The prison industry program, Federal
prison industry program, has been widely supported by virtually
all Federal prison personnel. Can you explain why the
Department of Justice hasn't been more aggressive in promoting
the program in Congress, opposing efforts to weaken the
program, and if you could say something about the staffing
levels generally because there is some concern that the
staffing levels are so low now that our prison guards may be in
danger.
Mr. Mukasey. Well, I think I am not supposed to express
relief at a supplemental that is in excess of what was
originally requested, but privately in the privacy of this room
I am satisfied that there was a supplemental, particularly with
respect to the BOP, which took a major hit in connection with
the budget, and I am glad and gratified to see that.
With regard to Prison Industries, that is an important
program not simply for the people who are in prison but rather
as a way of controlling the population. As you know, those jobs
are not only good training, they are valued by the prisoners
themselves and they are an excellent control mechanism because
loss of a job like that for infractions and for violence is a
big risk. So giving that privilege of access to such a program
and denial of it is a helpful way to control people in prison.
It is not just for the good of the crooks, it is for the
good of the guards, it is for the good of future victims who
will not become future victims as a result of the fact that
people learn valuable skills in that program.
When I was a judge, I was a proponent of that program. I
still am.
Mr. Scott. Is there more danger to prison guards now
because of the staffing level?
Mr. Mukasey. We think that we have got the situation under
control. But it is barely under control. The prison population
recently has changed, and it hasn't changed for the better.
People are getting more violent, they are not responsive to
warning gunshots that are fired when they start riots, and so
forth, and we have had an uptick in violence.
So far, it has been under control. But a couple of weeks
ago I went out to attend the funeral of a guard who was killed
out in California with a shank, a young man who had served two
tours in Iraq, come out of the Navy, was building a career for
himself. He was 2 weeks short of his 23rd birthday. It was a
tragic situation.
That is the first time in a dozen years that a guard has
been killed, but I want it to be the last time. I think we need
to make greater efforts in that area. The fact is that the
professionals in the Bureau of Prisons do an amazing job in the
way they control those violent populations with a very small
group of people. If you go into one of those institutions, it
is remarkable how small the ratio is between guards and
prisoners. But we need to do more in that area and we need to
stop the kinds of incidences that I mentioned. We are concerned
about them.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Conyers. Howard Coble, Ranking Member of the
Intellectual Property Committee.
Mr. Coble. Thank you, Mr. Chairman. General, good to have
you on the Hill. The distinguished Ranking Member from Texas
commented on intellectual property, and I want to direct your
attention to that issue.
General, as you know, this Committee has long sought to
work with the Department to strengthen the ability of law
enforcement to defer, investigate, and prosecute intellectual
property related crimes. As you probably know, we
overwhelmingly passed in the House earlier this year the bill
prioritizing resources and organizations for intellectual
property.
Some years ago, a Department witness stated to this
Committee that there are known links between IP crime and
organized crime, and even terrorism. General, can you comment
today on what evidence can be produced to link IP-related
crimes with terrorist funding and any specific details to known
links. Now it may be more appropriate to do that in writing.
But could you do that?
Mr. Mukasey. I can do it in a general way. The fact is that
we are facing on an international level more and more organized
crime and these folks will sell absolutely everything they can
for as much as they can. One of the most valuable things that
this country has is intellectual property. It is the engine
that drives our economy. There are foreign governments that are
intent on getting into that intellectual property and there are
foreign nongovernments in the form of terrorist organizations
that are interested in getting into that intellectual property
so that they can exploit it not only for its inherent worth but
also for its commercial worth.
I will provide in writing further specific instances of
that, but the fact is that everything from phony shoes and
handbags, on up, has been offered for sale by people who are
completely indiscriminate in who gets the proceeds as long as
they make money along the way. That has included people who are
involved in or suspected of terrorist activity.
Mr. Coble. If you could present additional details, we
would be appreciative.
Mr. Mukasey. I will do that.
Mr. Coble. Earlier this year, President Bush signed the
Second Chance Act into law. This legislation had broad support
and I believe is a new approach to an old but alarming problem.
That is prison overcrowding.
Have you had an opportunity to review or to be briefed on
this legislation? Do you agree with me that it is a good first
step addressing the skyrocketing problem of recidivism,
particularly of nonviolent offenders?
Mr. Mukasey. I agree that it is a good first step. The
recidivism rate in Federal prisons is a good deal lower than
the recidivism in all prisons, largely because we concern
ourselves before people are released with putting them in
programs that train them for release and with follow-up
afterwards. And the Second Chance Act is an important part of
that.
We hope to lower the recidivism rate still further. We
think that that kind of legislation and that kind of outlook is
a good way toward solving the kind of problem that Member Scott
pointed out before, that we should be working on prevention,
prevention at both ends, rather than simply enforcement.
Enforcement is an important part. That is what we do
principally. But we can't lose sight of the fact that when
prevention opportunities present themselves, as they do in that
legislation, we have to follow up.
Mr. Coble. I do concur. I do believe that prison
overcrowding may be one of the most pressing domestic problems
facing us, and I furthermore believe it is probably more
serious involved in the local and State institutions.
Mr. Mukasey. It is much more serious on the State level
than it is on the Federal level. We avail ourselves not only of
the facilities that we have, but also of rented space in State
and local institutions and in some private institutions that
run prisons, if you will, or detention facilities on a private
basis when they are reviewed and approved for standards. So
far, we have been able to hold up and do that. But so far is so
far. We want to make sure that we have got enough resources to
continue to do it.
Mr. Coble. I thank you, General.
Mr. Chairman, I want you to take note, I am beating the
illumination of the red light.
Mr. Conyers. You usually do. Thank you.
The Chair recognizes the Chairman of the Oversight
Committee of the Finance Committee, but a senior Member of
Judiciary as well, Mel Watt of North Carolina.
Mr. Watt. Thank you, Mr. Chairman.
Mr. Attorney General, back on April 23 of this year, the
Director of the FBI was before this Committee and I asked him
about a particular referral that had been made and we finally
got a response back from him just 2 days ago, really, in which
he says this: Regarding the referral made to our Charlotte
field office, we confirm that in October, 2006, the field
office was forwarded a letter which the North Carolina State
Bureau of Investigation received from State lawmakers
requesting an investigation into Aero Contractors. The letter
alleged that Aero Contractors has been identified as a
participant in the CIA-sponsored rendition program, which has
flown persons detained in various countries, including the
United States, to overseas torture sites. We consulted with our
field office and the Department of Justice and at this time we
do not have an open investigation regarding the allegation.
I have reviewed the jurisdiction of the various, I think
there are 11 or 12 divisions under the Attorney General, and
there is a National Security Division, there is a Criminal
Division, and I guess my question is, first, would it be a
violation of law for a contractor to fly persons detained to
overseas torture sites?
Mr. Mukasey. The country has enforced laws that require
that before people are sent abroad we receive assurances from
foreign governments that they will not be abused. That said, I
am not familiar with either the case or the program that you
refer to. As you point out, this correspondence goes back to
2006, which is essentially 2 years before I got here.
Mr. Watt. The concern I have is that I asked the FBI
Director to give me all the information. We got one paragraph
about it, and I still don't know anything more. We know a
letter asking for an investigation was made. We know there is
not a current active investigation. That is what the Director's
letter says. But still we don't know what happened in the
interim, whether they concluded that there was no basis for the
investigation, whether the Department looked the other way,
whether there is any--I don't even know whether you all think
sending somebody out of the country for rendition to a torture
site would be a violation of any law as it stands.
Mr. Mukasey. I would like to take a look at the case before
I comment on the case.
Mr. Watt. If you would do that.
Mr. Mukasey. One thing I have learned from past bitter
experience.
Mr. Watt. That is exactly what we asked the Director of the
FBI to do. Unfortunately, when we got the response a number of
months later, we don't know anything more, or very little more
than I had told him. I mean I had told him that there was a
referral but he wrote me a letter back confirming that there
was a referral.
Mr. Mukasey. Bob Mueller is a very diligent guy, but in
this case I hope to be able to perform better and outdo him.
Mr. Watt. I certainly appreciate that.
Mr. Mukasey. He is a very able person.
Mr. Watt. In addition, it would be nice to know if the
Department thought that flying somebody out of the country,
rendering them to a torture site, would be a violation of law.
But I won't ask you for that opinion right now. But I hope you
will include that.
Mr. Mukasey. I will include that.
Mr. Watt. One part of the voting process this year that a
number of people are expressing concerns about because we
believe there will be a voting pattern that will be
substantially different than there has historically been, and
one of the concerns we have is that nobody is really
anticipating those demographic shifts in the voting patterns
that we anticipate will happen. Does your task force that you
have been working with the States on, is that part of what you
are doing, and if not, will you include it to make sure that
there are enough machines, enough personnel, enough trained
people that know what they are doing to get people processed
without standing in line for hours on end?
Mr. Mukasey. The short answer to your question is yes. We
anticipate a much higher turnout this year because of increased
enrollment this year, as you point out, and we are doing what
we can. We have to keep in mind as we do that that this effort
is organized principally by State and local governments. What
we need to do is to make sure that they realize and understand
that where there is increased enrollment, they know it, and
that they are doing what they can to get the facilities that
they need to handle the increased enrollment and the increased
turnout, if in fact there is increased turnout. That is what we
are doing.
We are trying to do everything we can, including to make
information available not only to the State and local
governments, but to particular groups with an interest in
making sure that people turn out so that they know what the
rules are and aren't and know what they can and can't do and
police their State and local groups and make us aware of when
there are shortcomings. It is kind of a two-way street.
Mr. Watt. Thank you, Mr. Chairman. My time has expired. I
yield back.
Mr. Conyers. A senior Ranking Member of Judiciary from
California, Elton Gallegly.
Mr. Gallegly. Thank you very much, Mr. Chairman. Welcome,
Attorney General Mukasey.
Recently, during different debates we have had on
immigration, we have found that the FBI does various forms of
background checks, name checks, and so on and so forth, and
there is a backlog. Can you tell us how the FBI has addressed
the backlog and the name check or other background checks?
Mr. Mukasey. They are addressing the backlog in the one way
you can address it, which is by throwing more personnel at it.
They have, I think, gotten it way down, I believe. I think it
is down to something like 90 or 120 days. I am not precisely
sure, but I think it is. I know it is way below what it was
before. But we recognize that that was a problem. We are
addressing it. And we understand it and they understand it and
have put more people on it to make sure that they do the
background checks.
Mr. Gallegly. Is there currently a backlog in the criminal
background check of legal aliens?
Mr. Mukasey. There is currently some backlog across the
board, be it criminal check, be it just check on background.
This includes past criminal background.
Mr. Gallegly. This may be a little more difficult but in
recent months and actually recent years there has been a lot of
discussion about comprehensive immigration reform. Some of us
think that is a code word for amnesty. In the event that that
should take place, and depending on who you talk with, I think
most reasonable people would say this could account for about
20 million people.
Is it logistically possible to do a background check on
that many people?
Mr. Mukasey. Now? No. I mean, it is logistically possible,
I suppose, over an extended period of time. But if you throw 20
million more people into the system, is it going to stagger the
system? Yes.
Mr. Gallegly. I think that was probably a rhetorical
question.
In any event, one other question I have relating to
immigration. In fact, I met with a former Attorney General in a
previous Administration several years ago and was discussing
the issue of sponsorship of legal aliens. When you have an
immigrant coming into the country and they have a sponsor, they
sign a statement of economic responsibility or financial
responsibility.
Do you view that commitment, that document they sign, as a
legal and binding contract, or as a moral commitment?
Mr. Mukasey. I believe it is binding. I think if somebody
says I am going to be financially responsible for somebody,
what that means is, they are going to be financially
responsible for somebody. That is what I understand it to mean.
Mr. Gallegly. Would you be kind enough to perhaps in the
near future have your staff give us some type of a recap of how
many folks have actually been prosecuted for not----
Mr. Mukasey. For not stepping up?
Mr. Gallegly. For not taking that responsibility. And
whether or not we are actually pursuing it. I could give you
examples in my own district about people that are in the seven
figures that bring someone here, that within 6 months a parent
or brother or whoever they brought here is on Federal benefits
getting hearing aids that cost over $5,000, and nothing is done
about it.
So, in any event, I would just like to know if in fact with
all the other things that your Department is challenged with,
whether or not this is an issue that is taken seriously.
Mr. Mukasey. In fairness, I think this is in some part a
responsibility of DHS, which has, as you know, immigration
control.
Mr. Gallegly. Of course, when I had this discussion before,
we didn't have a DHS. But we do now.
Mr. Mukasey. There has been a sundering of responsibility
to a certain extent here. Let me find out what part we have
got, what part they have got, and see if we can straighten it
out.
Mr. Gallegly. Thank you very much, Mr. Chairman.
Mr. Conyers. Chairwoman Zoe Lofgren, Chairwoman of the
Immigration Subcommittee.
Mrs. Lofgren. Thank you, Mr. Chairman.
And Mr. Attorney General, it is good to see you. I have
some questions about our policy on prosecution of immigration
misdemeanor measures and how that is impacting the other
prosecution priorities of the Government.
We received information a few weeks ago in a Subcommittee
hearing with the U.S. Attorneys that, in the Southwest border
region, there had been a very substantial, tens of thousands of
increases in misdemeanor prosecutions for immigration
violations, and a nearly 40 percent decrease in prosecution of
organized crime. To me, that seemed like not a good trade-off
in terms of the standards.
So I am wondering, TRAC--and I know the Department doesn't
always agree with TRAC--has told us that 58 percent of all
prosecutions in April of this year were for immigration-related
matters, with only 13 percent for drug trafficking, and that 58
percent of all criminal prosecutions is mostly for misdemeanor
immigration crimes.
Can you address this?
Mr. Mukasey. I can address it in this way:
Yes, we have had an increase in misdemeanor prosecutions.
The strategy across the border is a varied strategy; it is not
one-size-fits-all. Part of that strategy involves prosecution,
and in the districts where we found an increase in prosecution,
we have also found a decrease in infiltration, that is, a
decrease in the number of illegals coming across the border.
That, to me, suggests a relationship. I don't by any means buy
into the idea of a trade-off as between immigration
prosecutions and drug prosecutions.
Mrs. Lofgren. If I can, Mr. Attorney General, the
statistics we got were from the Department, and what they told
us is that there had been an increase, a substantial increase,
and it was accompanied at the same time by a tremendous
decrease in organized crime prosecutions.
I have heard from local prosecutors that DEA agents are now
turning to local police for some of their drug prosecutions;
because they can't get warrants through the U.S. Attorneys'
offices, it is taking 6 months, which, for a drug prosecution,
just doesn't work, and because the U.S. Attorneys' offices are
so busy with prosecution of nannies and busboys, that they
can't get to the court in a timely fashion to get these
warrants in the fight against these drug cartels. That is what
local prosecutors are telling me.
Can you address that?
Mr. Mukasey. In fairness, I think it is a mistake to say
that we are not prosecuting drug dealers and we are prosecuting
nannies and busboys.
Some of the smaller drug cases are prosecuted in State and
local courts. However, we do prosecute drug cases, even low-
level drug cases, where it appears that people are bringing
drugs in in relatively small amounts, are putting those
together with other amounts and essentially packaging them up
for a larger shipment.
So we try to prosecute the more serious drug cases, as well
as the immigration cases, to keep the numbers down and to
control a problem that I think we all recognize, which is
unlawful immigration.
Mrs. Lofgren. Well, I appreciate that is your philosophy. I
don't think the statistics in your Department back up that
philosophy.
Let me talk to you about the Federal circuit courts,
because they have been in touch. As you know, immigration
appeals are the single largest number of cases in the circuit
courts. The Second and Ninth Circuits, that is 40 percent of
their overall docket, immigration appeals. The circuits have
actually organized to say, you know, we need to do something
about this.
They really believe, and I think they are right, that the
caseload expansion at the circuit courts is a result of the BIA
streamlining procedures that former Attorney General Ashcroft
implemented in 2002, which basically eliminated any effective,
meaningful review for immigration appeals, which just shoved it
up to the circuits.
What are you doing or planning to do to relieve this burden
on the circuits?
Mr. Mukasey. We are trying to systemize and organize the
way in which immigration appeals are handled. It is my
understanding, for example, that in the Second Circuit, which
is the one that I come from, they have organized the docket of
immigration cases in such a way that some of them are handled
summarily, that is, without argument; others not, depending on
the underlying merits of the case.
They have managed to screen and handle them that way.
Mrs. Lofgren. If I could, I know my time has expired, this
is really an emergency for our circuits, and I am sure you are
sensitive to it. The Committee that the circuits have organized
has indicated to me that the answer is not with the circuits,
the answer is to look at what caused this shift to the
circuits, and it is because if you have got bad cases, they are
going to be heard somewhere. Somebody is going to be killed
because their asylum appeal was erroneously denied. They are
not just going to pass on that, because it is too serious.
So if you don't have a meaningful BIA process, which we
don't, then we are going to have this bill up to the circuits,
and it is overwhelming them, and it is not the appropriate
format, it seems to me.
Mr. Mukasey. My experience with BIA cases has been that
they are resolved on the merits in a serious way. I don't see
the BIA rubber-stamping them one way or another.
Mrs. Lofgren. Well, that is not what the circuit courts
believe.
I yield back, Mr. Chairman. Thank you.
Mr. Conyers. Steve Chabot, formerly Ranking Member on the
Antitrust Task Force Committee of Judiciary, now ranking on the
Small Business Administration and still a Member of the
Judiciary Committee.
Mr. Chabot. Thank you, Mr. Chairman.
General Mukasey, I want to follow up on some questioning
back in February regarding Delta Airlines and its announcement
to merge with Northwest Airlines.
Mergers within the airline industry are treated with a
great deal of speculation because of the impact that such a
move has on consumers, particularly now with rising fuel
prices, in terms of limited flights and increased fares and, in
addition, the economic toll that it can have on cities and
regions in terms of their ability to bring businesses and
development into an area.
My question to you is, how is the Department examining the
merger and what factors are you examining and when do you
expect a decision on that merger?
Mr. Mukasey. The short answer to your question is
carefully.
The Antitrust Division has been addressing that merger in
particular in a very sensitive way. They have got their own
economists on staff who weigh the economic effect of the merger
as against the economic effect of having companies continue in
business, neither of which can survive alone. So what they try
to do is balance one against the other and see whether the
merger promotes competition, enhances the health of the
surviving entity, or the combined entity, and serves consumers
better.
Those are the elements that they consider, and they
consider them carefully. And they understand that this is an
exigent matter. They are working hard on it. I meet with them
regularly. But since it is a hard matter, they want to make
sure they get it the right the first time.
Mr. Chabot. Thank you.
Related to the Delta merger, members of the Ohio delegation
sent a letter to you last month and to the Assistant Attorney
General for Antitrust, Thomas O. Burnett, last week, expressing
concerns with DHL's decision to enter into a contract with
United Parcel Service. That agreement would allow UPS, one of
DHL's principal competitors, to provide DHL's delivery services
in North America.
To make a long story short, implementation of this
agreement could impact Ohioans who are employed by companies
already providing these services for DHL, as well as consumers
nationwide who are purchasers of these delivery services.
Understanding the implications that this agreement has for
the State of Ohio, and in fact for the Nation, my question is,
how will the Department of Justice treat this agreement and
what factors would your office be examining to ensure that the
market remains competitive and consumers, protected?
I would assume your answer is somewhat similar to the
first, but there it is.
Mr. Mukasey. It is very similar to the first. I think we
would consider obviously what alternatives are available to
consumers to reliance on either UPS or DHL. FedEx comes to
mind, although that is only because that is one I am familiar
with. But the effect on consumers and the economic effect of
the merger is going to be something that they consider. That
includes jobs.
But the first I heard of it, I think, was yesterday when
the letter came to my attention. I have not reviewed that
particular one with the Antitrust Division, but I have no doubt
that they are giving that the kind of consideration that they
are giving to the rather larger merger which you referred to,
which I have discussed with them.
Mr. Chabot. Thank you very much.
Finally, on June 25, so just about a month ago, the U.S.
Supreme Court struck down a Louisiana State law authorizing the
death penalty for child rape cases. In overturning the death
sentence, the Court examined the eighth amendment under its
evolving standards of decency standard, specifically focusing
on national trends relating to the death penalty in child rape
cases. The court claimed that there is a national consensus
against the death penalty for child rape cases. In my opinion,
nothing could be further from the truth.
In fact, Congress 2 years ago authorized the death penalty
for child rapists under the Uniform Code of Military Justice.
In 2007, President Bush issued Executive Order 13447 codifying
this provision in the 2008 Manual for Courts-Martial. Just
yesterday, the State of Louisiana filed a petition for
rehearing in the case.
I have introduced a constitutional amendment, along with a
number of my colleagues--Rick Keller, Lamar Smith, Tom Feeney
and others--that would clearly state that the death penalty for
child rape is not cruel and unusual punishment.
I would be very pleased to hear any input you could give us
on that.
Mr. Mukasey. Well, first of all, the fact that that was in
the Uniform Code of Military Justice is something that we
missed, and I regret that. And I take some, but frankly very
little, consolation from the fact that all nine Supreme Court
Justices missed it, all of their clerks missed it and the
parties missed it. That was pointed out by somebody with a
particular interest in military law, who found it later on.
That leaves us in a position of not being able to petition
independently.
The fact that Louisiana has petitioned gives us the
opportunity to join in that petition. To my knowledge, the
decision about whether to join in it or not has not yet been
made, but is under consideration. That is what I know about
that.
Mr. Chabot. Thank you very much. I would urge you to join
that, because I think it is unconscionable that those that
commit perhaps one of the most despicable acts possible, the
rape of a child, can't get the ultimate penalty because of a 5-
4 vote in the U.S. Supreme Court. I think that should be
reversed as quickly as possible.
Thank you very much.
Mr. Conyers. The distinguished gentlelady from Texas, Chair
of the Transportation Subcommittee and Homeland Security
Committee and an officer in the Congressional Black Caucus,
Sheila Jackson Lee of Houston, Texas.
Ms. Jackson Lee. Mr. Chairman, thank you, and to the
Ranking Member.
It is an important time that we spend with you, Mr.
Attorney General, on our oversight duties. And hoping that the
word that I use does not suggest that there is no work at the
Department of Justice, but let me just say there is a certain
order and calm that you brought to the Department of Justice,
and we applaud you--I do--for I hope the hard work that is
going on there.
You have heard the many concerns of my colleagues, and I am
going to add to them and try to speak as quickly as I can to
try to frame the concerns that I have.
The role of the Department of Justice, I think, is the arm
of justice for the Nation, and I note that the fiscal year 2000
budget on civil rights is $123 million. It sounds like a lot,
but it is less than $1 per American, and I believe all
Americans deserve the right to civil liberties. So let me
quickly put some things on the record.
I want to express concern, and I know overlapping
jurisdictions on the random ICE raids that generated the arrest
of American citizens because their last name happened to be, in
many instances, in Texas Hispanic; and I would ask for a report
back from the Department of Justice on how they are
coordinating with these ICE raids that haul in Americans under
the pretense of immigration reform.
Let me quickly also suggest that we have a broken watch
list process. I want to commend an individual who is a medical
doctor, who has been trying to become a citizen since 2004, and
it is now 2008, and we believe that--well, we know that is a
question of the watch list verification.
Another individual that had a sex change is a functioning,
working individual, abiding by the law, has been trying to
become a citizen since 12/03, and they too are in the midst of
this confusion of the watch list.
So I would like to put into the record--Mr. Chairman, I ask
unanimous consent to put into the record--General Mukasey, the
letter I sent to you on July 22, 2008, to ask for an
investigation of the FBI watch list and its progress. You might
want to comment briefly, but I want to put this in the record.
It specifically deals with the likes of Congressman John Lewis,
but also Drew Griffin of CNN, who came on the watch list after
an investigation.
Mr. Conyers. Without objection, so ordered.
[The information referred to follows:]
Ms. Jackson Lee. I also want to put into the record
February 7, 2008, a letter dealing with the imams in the
Minneapolis-St. Paul airport, as to why these imams were
removed, arrested and detained. I understand they have a
finding of discrimination; I would like to know what the
Department of Justice is doing with that.
Mr. Chairman, I ask unanimous consent to put that in the
record.
Mr. Conyers. Without objection, so ordered.
[The information referred to follows:]
Ms. Jackson Lee. Let me get to where I will cease so that
you can answer these questions.
We have had a series of incidents under the criminal laws
of this Nation that have shown that we need improvement, Mr.
General. I have mentioned the oversight of the long arm of the
Government can bring about light at the end of the tunnel. The
Jena Six I refer you to, the Sean Bell case I refer you to, the
recent tasering of a Black man in Winnfield, Louisiana, and
then to Harris County, where we have found that there have been
101 deaths from January 2001 to December 2006. We just had the
additional loss of a Ms. Saavedra, who died in the jail from an
infected knee, having begged for medical treatment and having
not received it.
I want to put into the record a May 7, 2007, letter that I
have given to you previously and ask unanimous consent.
Mr. Conyers. Without objection, so ordered.
[The information referred to follows:]
Ms. Jackson Lee. A February 7, 2008, letter regarding the
district attorney in Harris County, and I briefly read to you.
This person is allegedly to have repeatedly sent racist and
sexual e-mails in his actions in the cases in which he
prosecuted. We asked simply for this to be reviewed on the
basis of prosecutorial misconduct and abuse, civil rights
violations, and the proclivity to remove Black jurors.
We got a letter back from the Department of Justice
indicating that was not something that you would review, and I
thought that had to do with civil rights.
So I would ask, Mr. Attorney General, one, what is the
amount of money and staff and counsel that you are utilizing to
help purge out the bad apples in the Nation's criminal justice
system as it relates to the violation of civil rights of
Americans; and, two, what are we doing with respect to the
national security investigations of individuals who sometimes
seem to be targeted because of racial, ethnic, sexual gender or
otherwise?
I would appreciate your answer.
Mr. Mukasey. I cannot enumerate for you now a specific
amount of money being devoted to the problem that you raised.
The fact is that we devote our resources across the board to
civil rights problems, and we have had a phenomenal success
rate. Criminal prosecutions are up, the level of our success in
appellate cases is up, the number of voting rights cases that
we have brought is up.
We bring Title VII cases to achieve the maximum amount of
impact. We are doing this across-the-board.
With respect to, I think it was the Harris County jail
situation----
Ms. Jackson Lee. And the district attorney's office, which
your office indicated they couldn't respond.
Mr. Mukasey. If criminal evidence comes to hand that
warrants a prosecution of that district attorney----
Ms. Jackson Lee. Or civil rights.
Mr. Mukasey. Or civil rights--who, by the way, is no longer
in that position; he is now an ex-DA, and it sounds like he
deserves to be a ex-DA. We will pursue that.
But with regard to the Harris County jail investigation,
that is ongoing. It is bound to be a long-term thing because it
involves revisiting the facility, evaluating all of its
treatment, medical care, food, space and the like, and it is
likely to take quite some period of time. But there is an
active inquiry into the conditions in Harris County, and that
is due in no small part to the fact that you are involved in
that and have offered us both advice and leads in that.
And although you have been somewhat critical, I can't do
anything but say that I am grateful for the fact that you are
involved in it.
Ms. Jackson Lee. I would just simply say, the district
attorney's office, you have articulated the history of that
office. But I think the question for the Justice Department
would be pattern and practice. I would ask respectfully,
Attorney General Mukasey, that that be looked at again, because
I mentioned the elimination of minority jurors consistently,
and I think that warrants a broader look-see, because we are
talking about the infrastructure of the justice system.
Mr. Mukasey. I will get back to you with respect to that
one.
Ms. Jackson Lee. Thank you.
Mr. Conyers. The Chair recognizes Dan Lungren, who is the
only former attorney general of a State on the Judiciary
Committee, and he is senior of the three other former attorney
generals that are here.
Mr. Lungren. Thank you very much, Mr. Chairman.
Thank you for your appearing before us, Mr. Attorney
General.
Mr. Attorney General, a year-and-a-half ago the Foreign
Intelligence Surveillance Court made a ruling in which it
indicated that new circumstances overwhelmed the FISA law and
basically invited the Congress to deal with that issue. It took
us a year-and-a-half to do that, during which time I think we
lost valuable opportunities for intelligence.
Now you have come before us to refer us to the recent
Supreme Court case dealing with unlawful enemy combatants and
this new right they have to habeas corpus, a right that had
never been seen before in the history of the United States,
but, nonetheless, one that in the evolving sense of wisdom, the
U.S. Supreme Court has found.
In the speech you gave yesterday, or the day before, AEI--
--
Mr. Mukasey. The day before, I think.
Mr. Lungren [continuing]. You spoke at some length about
this, and in the middle of your speech you said one of the
questions that had to be answered was whether a Federal Court
will be able to order the enemy combatants detained at
Guantanamo Bay be released into the United States.
You then went on to say the Supreme Court stated that a
Federal trial court must be able to order at least the
conditional release of a detainee who successfully challenges
his detention.
But what does it mean to order the release of a foreign
national captured abroad and detained at a secure United States
military base in Cuba? Will the courts be able to order the
Government to bring detainees into the United States and
release them here, rather than transferring them to another
nation? And you further indicated that the court has invited
the Congress to act on that.
So I wish you would go a little bit further than you did in
your opening statement about the urgency of the matter for
Congress to address this and the seriousness of the questions
that you asked here, because it seems to me those are unsettled
questions, whether the courts would be able to order the
Government to bring detainees to the United States and release
them here. Clearly, that has not been decided, yet I believe
the Court is inviting the Congress to outline the parameters of
that and, I would suggest, make it impossible for that to
happen.
Mr. Mukasey. The Court has left that matter open, and the
fact--but it has said that at the end of the day it must be
open to a decision-maker to direct release.
Now, the fact is that all of these people, every single one
of them, are aliens captured abroad in essentially battle
conditions who have absolutely no right to be here; and there
is no good reason to have a court bring somebody here for
purposes of release and release them into our communities,
people who could pose a significant danger. We want that
particular possibility cut off. We don't want to have to face
it. We shouldn't have to face it. And if people are brought
here for hearings or are brought here as witnesses, they can
simply, by coming here, acquire rights that they did not have
abroad.
You recall that there was an extraordinary effort to keep
Haitians from coming here, to keep people in the Mariel
Boatlift from coming here when they were released from Cuba,
and for very good reason; and that is if they set foot on
American soil, there are matters that are at issue that were
not at issue beforehand. We don't think they should be put at
issue.
Mr. Lungren. You also mention in your speech the question
of whether or not American military people on the battlefield
would be subject to coming to a hearing, whether or not their
testimony would be required, the kinds of evidence keeping that
would be required under normal circumstances and how that
applies to the battlefield.
I presume you are suggesting that Congress ought to deal
with that issue as well.
Mr. Mukasey. I am. The Court left it open specifically and
said that this was to be approached in a practical way.
Courts don't have the ability to gather facts on their own.
Congress has that ability. Courts don't have the collective
expertise that Congress has or that the executive can provide
in assisting and drafting that legislation. Courts don't have
it; Congress and the executive does. And if anyone should step
into this, it is Congress with the assistance of the executive,
and that is what we hope to do.
Mr. Lungren. As I understand, we have over 200 people held
currently at Guantanamo. This is ongoing. In other words----
Mr. Mukasey. Down from 775.
Mr. Lungren. Right. But this is ongoing, requiring Congress
to act sooner rather than later.
Mr. Mukasey. Correct.
Another thing the Supreme Court said is that this process
had to go ahead quickly, and it is going ahead quickly. And the
quicker it goes ahead, the more likely it becomes that that
there may be inconsistent results reached and situations
created that could be stopped with intelligent legislation.
Intelligent legislation can do two things: It can both
speed up the process by ensuring consistency, and it can assure
that undesirable results are avoided.
Mr. Lungren. I hope you haven't assumed facts not in
evidence, that is that we are capable of producing intelligent
legislation. I hope that is not the case.
Mr. Mukasey. I think they are in evidence. Congress acted
very quickly to pass the Protect America Act, it acted very
quickly to enact the authorization of military force; it acts
quickly when it puts its collective mind to it.
I don't want to sit here and preach. That is not what I am
here for. But the fact is that the capacity is here and the
intelligence is here.
Mr. Lungren. I appreciate that very much, and I yield back
the balance of my time.
Mr. Conyers. The Chair recognizes the gentlelady from
California, Maxine Waters, who chairs the Housing Subcommittee
in Finance and is a Member of three Subcommittees on Judiciary.
Ms. Waters. Thank you very much, Mr. Chairman. I appreciate
the fact that you are always making available to us the heads
of our agencies and departments that are responsible for
important areas of Government. And I would like to thank Mr.
Mukasey for being here today.
The Justice Department has the responsibility of enforcing
civil rights, investigating complaints of civil rights
violations, the Voting Rights Act, fair housing, Title IX
enforcing discrimination complaints for those who are disabled,
and, of course, AIDS discrimination is one of the areas you
have responsibility for.
I would like to know, what do you know about the problem of
the discrimination complaints within your own Department? If we
are to have confidence that you can do the work that is
mandated by law, I want to know why you continue to have so
many discrimination complaints, what you understand about those
complaints, how many are still pending. Have you proposed any
initiative to deal with the problem? What are you doing to
recruit and outreach to help cure the disparity?
You have 12,000 agents. Less than 5 percent of them are
African American. Does this problem cause you any
embarrassment, and, if so, what can you do about it? What are
you going to do about it?
Mr. Mukasey. When you refer to 12,000 agents, you mean
12,000 FBI agents?
Ms. Waters. I have 12,000 agents serving in the FBI.
Mr. Mukasey. That corresponds roughly to the number of FBI.
My experience has been, through direct observation, that
FBI is engaged in significant outreach and that more and more
FBI agents are being recruited from within the African American
community.
Ms. Waters. Do you have the numbers?
Mr. Mukasey. I don't have the numbers. I can get them for
you.
Ms. Waters. I would appreciate that.
You have discrimination complaints. How many are pending
within the Department?
Mr. Mukasey. I don't know the precise number that are
pending. There is one that I am familiar with that is in
litigation that I can't really comment on. But my sense is
different from yours, i.e., that there is not a large number of
them. Let me go back and check. I know of one case that is in
litigation.
Ms. Waters. When you talk about recruitment, could you
describe your outreach and recruitment efforts?
Mr. Mukasey. We go to universities. We go to schools. We
evaluate applications on the merits. We make it well known that
we are looking for talented people.
Ms. Waters. Do you feel you have a problem?
Mr. Mukasey. We can always do more.
Ms. Waters. Do you have a problem?
Mr. Mukasey. We can always do more.
Ms. Waters. Are you satisfied that aside from the kind of
generic answer of you can always do more, that you don't have
that many complaints, they are not that serious, and you don't
need to take any special initiatives? If you can always do
more, what more are you doing? What more do you propose to do?
Mr. Mukasey. I am never satisfied. I am not in the business
of being satisfied. I am in the business of looking for ways to
recruit talented people from all communities. We have been
doing that. I am going to get you the numbers on the FBI, and,
if you have any particular cases, I will be happy to review
them.
Ms. Waters. No. I would like to ask our Chairman if we can
make a request from this Committee to get a list of all of the
discrimination complaints and the status of those complaints so
that we can decide and I could impose upon you, Mr. Chairman,
to see if we need to do a hearing about those complaints.
Mr. Mukasey. Discrimination complaints within the Civil
Rights Division?
Ms. Waters. Complaints within the Department.
Discrimination complaints from agents, African American agents,
or from women, against the Department, and your discriminatory
practices there in the Department.
Mr. Mukasey. You somewhat broadened the target. But
whatever is requested, if we can provide it, we will provide
it.
Mr. Conyers. Would the gentlelady yield? Because I would be
willing to review that list when it is sent to you.
Ms. Waters. I appreciate that. That is probably very
important that we get the actual information. Mr. Mukasey is
new and he perhaps doesn't know in depth the problem that
exists.
Mr. Mukasey. I am not taking refuge behind the fact that I
am new. I am going to take a look at it, and it may provide a
subject for discussion in a meeting that I am going to have.
Ms. Waters. Mr. Chairman, I am being kind to provide him
with an excuse for not knowing the information that I have
asked him today. So whatever the reason is, we need that
information.
I thank you, and I yield back the balance of my time.
Mr. Conyers. Bob Goodlatte, Chairman emeritus of
Agriculture and distinguished Member of the Committee.
Mr. Goodlatte. Thank you, Mr. Chairman, and thank you for
holding this hearing.
Attorney General Mukasey, welcome. We are very pleased to
have you here. I also want to thank you for your commitment to
protecting our elections process by aggressively prosecuting
voter fraud cases.
I wonder how your efforts are going, and do you agree it is
crucial that we ensure that U.S. Citizens' votes are diluted by
those unauthorized to vote, including illegal aliens?
Mr. Mukasey. I think it is crucial that we ensure it. I
think that one way in which we have helped assure it is
assuring that proper identification is required before somebody
can vote. Obviously, when evidence presents itself that people
are here unlawfully, they are apprehended and deported.
Mr. Goodlatte. Thank you. A recent experience under
Indiana's voter ID law seems to show that such laws do not
diminish voter turnout. On the contrary, they can actually
increase voter turnout.
As was recently reported, voter turnout among Democrats
improved slightly last year in Indiana, despite a new law
requiring voters to show photo identification at the polls.
Jeffrey D. Milyo, a professor at the University of Missouri,
compared the 2006 midterm elections, the first since Indiana's
law was enacted, to the 2002 midterm elections, and said voter
turnout increased about 2 percentage points. He said the
increase was consistent across counties with the highest
percentage of Democrats.
So do you think that this increased turnout could be
explained by the fact that securing voter ID laws gives legal
voters the security of knowing that their vote will count and
that it will not be diluted?
Mr. Mukasey. I am not technically trained, so I don't want
to speculate on the possible relationship. I think all that
study shows is that you don't cut down the number of voters
simply by requiring that people have to show ID. Whether there
is a cause-and-effect relationship is for people who are much
more schooled in statistics and sociology than I am.
Mr. Goodlatte. I agree. Section 642 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
bars State and local governments from restricting their law
enforcement officers from communicating with the Department of
Homeland Security about the immigration status of individuals.
Despite that law, many sanctuary cities continue to prohibit
law enforcement from checking the immigration status of
criminal aliens that they encounter.
The results can be tragic. There have been many reported
cases where the immigration status of criminal aliens was not
checked because of sanctuary policies, and they were released
back into society to murder American citizens.
What steps are you taking to enforce section 642 and to
stop cities from using sanctuary policies?
Mr. Mukasey. We are trying to police unlawful aliens in
this country. We are doing our best to conduct controlled
operations, along with the Department of Homeland Security,
when we find them located in a particular place.
That said, I have said on prior occasions that I can
understand the dilemma posed when unlawful aliens essentially
present an attractive victim pool for people who know that they
won't file complaints. And there is a balance to be struck
here, but we are certainly alive to the need for enforcement,
and we engage in it actively.
Mr. Goodlatte. That dilemma that you face could be enhanced
if you had the cooperation of communities, rather than some
communities refusing to cooperate with the Department of
Homeland Security or the Justice Department in enforcing our
criminal laws.
Mr. Mukasey. Precisely.
Mr. Goodlatte. Thank you.
Attorney General, in April of this year, you announced the
allocation of additional resources for prosecuting felony and
misdemeanor immigration-related violations, such as human
trafficking and drug smuggling, with $7 million provided to
hire 64 assistant U.S. Attorneys and 35 support staff assigned
to the Southwest border U.S. Attorneys' offices which prosecute
the majority of the country's felony immigration cases.
For fiscal year 2009, the Department is requesting another
$8.4 million to add another 50 attorneys along the border. With
these increased resources, will you be placing increased
emphasis on the prosecution of misdemeanor and felony
immigration cases?
Mr. Mukasey. We will be able to address this problem, as we
have been addressing it, in a flexible sort of way, including
increased prosecution, which, as I said, has led to reduced
infiltration. We have more prosecutions, less infiltration, in
each of the districts across the border.
We don't use precisely the same approach in each of the
districts across the border. It is not one-size-fits-all,
because one size doesn't fit all. There are places where there
are greater numbers, numbers that, if fully prosecuted, would
overwhelm the system, because there simply aren't enough
judges, lawyers, bed space and marshals. But we try to address
each problem in each district to meet that district's needs.
Mr. Goodlatte. Thank you. I agree with that assessment.
I think Americans are starting to see some results along
the border. I think more needs to be done, and more needs to be
done in the interior of the country. But I encourage you to
pursue those efforts.
Thank you again for being here today.
I yield back, Mr. Chairman.
Mr. Conyers. Bob Wexler, Florida, Member of the
Intellectual Property Subcommittee.
Mr. Wexler. Thank you very much, Mr. Chairman.
Thank you, Mr. Attorney General, for appearing before us. I
am hopeful that you, Mr. Attorney General, can somehow explain
to this Committee and to the American people how this
Administration effectively nullified the constitutional power
of Congress to investigate actions of the executive branch and
how this Administration has effectively rendered meaningless
our power to seek and subpoena executive branch witnesses.
Unfortunately, your actions, thus far, have enabled this
President to assert this unprecedented abuse of executive
privilege claims and the outright refusal of Administration
officials to come before Congress.
I would like to specifically discuss with you the interview
Vice President Cheney held with the FBI regarding the CIA leak
investigation. In a demonstration of just how far you have
stretched the definition of executive privilege, you declared
that those FBI interviews were ``internal White House
deliberations'' and, thus, exempt from congressional oversight.
These FBI interviews would seem to be nothing of the sort,
and they would seem to have zero relation to any official White
House business or Federal policy. These are transcripts of FBI
investigators interviewing Vice President Cheney, nothing more,
nothing less.
So my question, respectfully, Mr. Attorney General, is,
does your Justice Department consider all FBI investigators to
be part of the White House, and by your logic, is there any
way, any conceivable way, that the White House could in fact be
investigated without triggering executive privilege?
Mr. Mukasey. Let me explain the problem as follows:
The FBI 302s that you referred to--which, by the way are
not transcripts, they are reports by FBI agents on their
conversations with particular people--the 302s that you
referred to were on conversations with the Vice President.
Those conversations concerned conversations that he had
internally with respect to matters that were at the heart of
the notion of executive privilege, i.e. conversations relating
to whether the President was accurate or inaccurate in his
comments in his State of the Union and related matters. That
was the subject of those 302s.
The fact that those conversations happened to be recorded
in 302s doesn't change the protection afforded to them. That is
our view. And I think that principle is not my invention. It is
nicely illustrated in a pair of cases involving the Nixon
tapes, where an objection based on executive privilege was
sustained in response to a congressional subpoena, whereas an
objection based on executive privilege was not sustained in
response to a demand for a subpoena by a prosecutor.
Those two cases could not stand side-by-side were it not
for there being that distinction.
Mr. Wexler. Are you asserting that the FBI did not inquire
with the Vice President with respect to his role in the outing
of a covert CIA agent?
Mr. Mukasey. I am not going to disclose the substance of
the FBI's inquiries beyond saying the substance of those
inquiries involved core executive privilege concerns, which the
President invoked.
Mr. Wexler. If the Vice President of the United States did
in fact participate in the outing of a covert CIA agent, is it
your position that that involves the core actions of the Vice
President?
Mr. Mukasey. I should point out that your question embodies
a counter-factual assumption, because the prosecutor in that
case closed that case by saying that no further investigation
was necessary.
Mr. Wexler. What is your definition of ``internal White
House deliberations''? What qualifies?
Mr. Mukasey. What qualifies? You mean what qualifies for
executive privilege? Deliberations between the President and
those immediately around him and the gathering of information
by him for the purpose of making decisions.
Mr. Wexler. So a discussion with the Vice President with
FBI agents under that definition would only qualify to the
extent he is talking about conversations that the President
had; is that correct?
Mr. Mukasey. Conversations that were had within the
executive generally for the purpose of advising the President.
Mr. Wexler. But clearly, you tell me otherwise, whether or
not the Vice President participated in a scheme to out a CIA
agent, would that be covered by executive privilege?
Mr. Mukasey. The Vice President's participation, yes or no,
was the subject of inquiry by a prosecutor.
Mr. Wexler. I understand that. But does it qualify for
executive privilege?
Mr. Mukasey. In the abstract, no.
Mr. Wexler. Thank you, Mr. Chairman. My time has expired.
Mr. Conyers. The Chair recognizes Rick Keller, who serves
on three Subcommittees on Judiciary. The gentleman from Florida
is recognized.
Mr. Keller. Thank you, Mr. Chairman, and thank you,
Attorney General Mukasey, for being here today. We very much
appreciate it. I am going to ask you about two subject areas.
First, I want to ask you about the media shield issues, and
second, touch on violent crime. With respect to the media
shield issue, I have read your testimony today. I know that you
and the Bush administration have expressed concerns about the
media shield bill.
I have worked very closely with the authors of this
legislation to come up with fair compromise language that
helped to win overwhelming bipartisan support on this Judiciary
Committee and in the full House. Since the sensible exceptions
that we have come up with, such as not allowing reporters to
withhold information that could prevent crime, terrorism, or
harm national security, hasn't been enough to satisfy the Bush
administration to support the media shield bill, I am curious
myself about what it would take to have a bill that would be
acceptable.
So my question to you is, is there any version of the
Federal media shield bill that you would find acceptable enough
to recommend to President Bush that he would not veto it?
Mr. Mukasey. With great respect, there is nothing that I
have seen in the media shield bill, as presented, that would
allow for the sufficient protection of classified information,
for the sufficient protection of the security of this country.
In my view, the media shield bill, in the large, is a solution
in search of a problem.
We have a procedure in place for the protection of
subpoenas against reporters. The United States attorneys are
not free simply to do that without the permission of the
Attorney General. We have had less than two dozen cases in
which such subpoenas have issued since 1993.
Mr. Keller. Well, Mr. Attorney General, I would submit to
you that there is language in there that specifically deals
with the leaking of classified national security information.
Mr. Mukasey. There is in fact a higher standard for
prosecuting a leak case than there is for any other case in
that statute, and it would provide not protection for
reporters, it would provide protection for leakers.
Mr. Keller. Right. Well, were you aware that the Ranking
Members of the Intelligence Committee, along with the Chairman
of the Intelligence Committee, Republicans and Democrats, along
with the leaders, Republicans and Democrats, of the Armed
Services Committee, felt that that language dealing with the
national security protections was sufficient enough that it
justified them voting for it?
Mr. Mukasey. I don't know what they felt or didn't feel. I
know what is in the bill. And what is in the bill, for example,
requires a showing that classified information was properly
classified and that the person who leaked it had authorized
possession of it.
If somebody wants to leak classified information, it is
child's play for that person to take that information, give it
to somebody who is not authorized to leak it, and then the
investigation ends.
Mr. Keller. All right, let's focus on what we can agree on,
because I don't want to quarrel with you, but I am trying to
resolve this issue.
Mr. Mukasey. That is what is in the bill.
Mr. Keller. We can agree that 398 House Members voted for
it. I think we can agree that both Senator Obama and Senator
McCain said they would sign the bill, and I think we can agree
that one of those two men is going to be the next President of
the United States.
So you agree with all three of those facts?
Mr. Mukasey. I would agree with all of those facts, and I
would also agree that 10 angels swearing on Bibles that that
bill was harmless would not change the provisions that are in
it.
Mr. Keller. So back to my original question.
You have got less than 6 months on the clock here until the
end of the Bush administration. Will you commit today to
sitting down with our congressional leaders to try to fashion a
compromise relating to these national security issues that
would ultimately result in your being able to recommend that
the President sign the bill? Or in the alternative, is there no
bill that you would recommend being signed?
Mr. Mukasey. I am in the same position as a Socialist
candidate for President named Eugene Debs, who said, ``I will
talk to anybody who will talk to me.''
I will sit down with anybody who wants to sit down and have
a serious conversation about what can be done and what can't be
done, but first we need to talk about what is there. And what
is there is not acceptable for the reasons I have started to
explain, and I would be happy to continue to explain.
Mr. Keller. If there is language that is acceptable to you
that provides the protections for national security, would you
then be able to be in a position to recommend it?
Mr. Mukasey. If anybody can come up with language that is
acceptable, that protects national security, that allows us to
get information when there is serious indication of an
impending crime, then yes.
Mr. Keller. Okay. My time is about to expire on the violent
crime issue, so let me just make a statement and give you a
chance to respond.
On the positive front, Attorney General Mukasey, I have
seen very good results in my area of Orlando, Florida, arising
out of the ATF Violent Crime Impact Team, and I have seen very
positive results as a result of 774 cops added to the streets
of central Florida through the COPS program.
Can you give me your thoughts, as we wrap up, on the ATF
Violent Crime Impact Teams and the COPS program?
Mr. Mukasey. The VCITs, the Violent Crime Impact Teams, are
part of, but not the entirety of the antigang strategy that we
have pursued. ATF has been superb in handling, I think, more
gun cases than we have ever handled before. They are part, but
not the entirety of, the strategy.
We try to do targeted grants using not only our own
capabilities, but targeted grants at State and local entities
that can work with us, so as to maximize the resources that we
can bring to bear.
Mr. Keller. And the COPS program, any thoughts?
Mr. Mukasey. The COPS program is one of many programs that
can be worthwhile, but was never meant to be perpetual. The
point was to get police on the streets, have them effective,
and then encourage State and local communities, as many of them
have, to step forward and fund the increased forces that they
have which are effective.
Mr. Keller. Thank you. I wish I had more time to follow
that last one up, but my time has expired. I thank you for
being here, Attorney General Mukasey.
Thank you, Mr. Chairman.
Mr. Conyers. Linda Sanchez, Chair of Administrative Law and
Commerce, and a Member of the Immigration Committee, from
California.
Ms. Sanchez. Thank you, Mr. Chairman, and thank you, Mr.
Attorney General, for being here today. There are a number of
different areas of questioning that I have, and I am going to
try to get through them as quickly as I can.
First off, in response to questioning before the Senate
Judiciary Committee on July 9, about the allegations of
selective prosecution of Alabama Governor Don Siegelman, you
stated that there are--and I am quoting you here--``various
avenues open for exploring those allegations, including having
testimony on the subject.''
Given your assertion about the ability of Congress to
investigate the Siegelman matter through testimony, I am
wondering, do you support Karl Rove's decision to ignore a
congressional subpoena on July 10th and refusal to testify
about his role in the Siegelman matter and other matters
regarding the politicization of the Justice Department?
Mr. Mukasey. As I understand it, Mr. Rove acted at the
request of the President in response to an invocation of
executive privilege. He has offered to meet with staff. He has
offered to discuss the matter.
Ms. Sanchez. But he has not offered to be under oath or be
subject to transcript. And my understanding from prior court
law--and I would expect an Attorney General to know this, as
well--if the White House wishes to invoke a claim of executive
privilege, the witness still has to present themselves before
Congress and claim that privilege on a question-by-question
basis.
Mr. Mukasey. With all due respect, I think that is a matter
that is currently being litigated on which I can't comment any
further.
Ms. Sanchez. But prior case law has held that that is the
case.
Mr. Mukasey. I don't know that. I know that that is a
matter that is under active litigation, and is I believe sub
judice before a judge in the District of----
Ms. Sanchez. So you agree that Karl Rove can disregard a
congressional subpoena if we wish to----
Mr. Mukasey. What I am saying is, the question of whether
an immediate adviser to the President has to appear at all when
a proper claim has been made of executive privilege is a matter
that I believe is actively before a district judge; and I
shouldn't comment any further on that, and I won't.
Ms. Sanchez. I think if you brush up on your case law, you
will find that prior case law holds that not to be the case.
And if we are talking about conversations that Mr. Rove had
with others in the U.S. Attorney's office in Alabama, for
example, in the Siegelman matter, not conversations with the
President himself, I have a hard time seeing exactly how the
claim of executive privilege can be asserted if it wasn't
advice that was given to the President or direct conversations
with the President.
But apparently we disagree on that matter.
On the issue of nonprosecution and deferred prosecution
agreements, out of the 40 known corporate monitors that have
been appointed in deferred or nonprosecution agreements since
2000, at least 30 were Government officials and 23 were former
prosecutors.
Mr. Mukasey. Were Government officials at the time they
were appointed?
Ms. Sanchez. Previous Government officials, and 23 were
former prosecutors. As I am sure you are aware, New Jersey U.S.
Attorney General Chris Christie gave a multimillion-dollar, no-
bid contract, monitoring contract, to John Ashcroft, who was
his former superior.
I am wondering if you believe that all qualified
individuals should have the opportunity to serve as a corporate
monitor in an open and competitive bidding process. Or do you
favor the selection of corporate monitors with no transparency
and no accountability?
Mr. Mukasey. With all due respect, we enacted or put into
place in March of 2008, after consultation with the United
States attorneys, a set of guidelines relating to the
appointment of corporate monitors that assures precisely the
transparency that I think you advocated, and it goes from the
start of the process to the conclusion of the process.
Ms. Sanchez. My understanding is those guidelines were
issued on the eve before a hearing that we were holding on that
very issue. I think that there was probably a strategic reason
for trying to get them done before the hearing.
Mr. Mukasey. Oh, gosh, I was unaware of the hearing. With
all due respect----
Ms. Sanchez. Furthermore, the guidelines have been
criticized for lacking sufficient detail to really be of any
significant use either to Federal prosecutors or to the
corporations that were----
Mr. Mukasey. Why don't we await the experience that we have
using the guidelines and find out whether they work?
Ms. Sanchez. Well, so far, we have not seen any instance of
an open and fair and transparent process by which monitors are
selected. It seems to be pretty much at the discretion of one
person within the Department of Justice.
Mr. Mukasey. It is not.
What happens is what is required under the guidelines with
regard to when you get to the point of selection----
Ms. Sanchez. These are the new guidelines that just got
enacted and got released.
Mr. Mukasey. The new guidelines, correct.
There is a panel of at least three people from whom the
selection is made. That person has to be approved by the Deputy
Attorney General, which assures uniformity; and the money that
comes to fund somebody who serves in that position is paid not
by the public, but by the corporation.
Ms. Sanchez. We understand. But there are still questions
to whom that monitor owes a duty: Is it to the Government? Is
it to the people? Is it to the corporate monitor? That has not
been spelled out in those guidelines, unless something has been
revised since March.
Mr. Mukasey. That monitor owes a duty to the duty that he
undertakes to act in a fair, open and transparent way.
The fact is that the Government people, ex-Government
people, you mentioned put their reputations for fairness on the
line every time they agree to do that.
Ms. Sanchez. And they also are paid oftentimes very
lucratively. I would just say this because my time has expired.
We would love to get additional information regarding the use
of non-prosecution and deferred prosecution agreements. We will
look forward to that because so far we have not received all of
the information that we have requested regarding those
agreements, and we have written to you on several occasions to
ask you to provide that information.
So if you are saying here today that we should evaluate the
cases where it is used and see whether the guidelines are
working or not, we can only do that if we receive the
information from your office.
With that, I will yield back the balance of my time.
Mr. Conyers. The Judiciary Committee will stand in recess
for 8 minutes.
[Recess.]
Mr. Conyers. The Committee will come to order. The Chair
recognizes the distinguished gentleman from California, Darrell
Issa, who serves on the Intellectual Property Committee, the
Constitution Committee, and the Task Force on Antitrust.
Mr. Issa. Thank you, Mr. Chairman, and it is an honor to
serve on those Committees with you.
General, a couple of things, and before I get back to, if
you will, this whole question of media, I would like to do just
a couple of questions on executive privilege. Earlier Ms.
Sanchez was asking about Karl Rove's failure to appear based on
an assertion by the President of executive privilege. What
useful purpose would it serve if he came here when the
questions are likely to be specifically related to items he is
prohibited from telling us? Other than to be a dog and pony
show, can you name us a useful reason to have Karl Rove here?
Mr. Mukasey. Congressman Issa, I don't want to get in the
middle of a controversy as to what good would or wouldn't be
served. I know that the President's immediate advisers are
subject to his claims of privilege, and notwithstanding their
own desire or ability to discuss issues, if they are told they
ought not to get into matters that relate to their
conversations with him or his ability to gather information,
they can't.
Mr. Issa. General, in your past experience, if you want to
get to the truth, don't you usually try to get a written
statement, sworn or unsworn, through requests for production?
Isn't that a generally more effective way to do it and isn't
that what you would normally recommend for the efficiency of
any body, that they try to get the answers in writing rather
than schedule people if the questions are known and the answers
are unknown?
Mr. Mukasey. I guess, again, I don't want to get in the
middle of an intramural dispute here. There are various ways of
gathering information, people use written interrogatories, they
use live testimony. I am not demeaning the value of live
testimony. There are many ways, as you point out.
Mr. Issa. General, I didn't plan on asking these questions
but since Ms. Sanchez did I thought I would try to make the
record as complete as possible today because of your presence
here.
Mr. Chairman, I would like to ask unanimous consent to
enter in the Record at this time a letter from Ranking Member
Lamar Smith asking Mr. Luskin, who represents Karl Rove,
whether or not he would answer some very specific questions
related to the prosecution of Governor Donald Siegelman and
then the accompanying answers in detail from Patton Boggs.
Perhaps that would enlighten us, at least until we can get
further answers from some other source.
Mr. Conyers. Without objection, so ordered.
[The information referred to follows:]
Mr. Issa. Thank you. Having dispensed with at least
questions and answers that do not assert executive privilege,
General, you were unable to fully answer questions related to
the current relationship of media leaks and how they affect
national security earlier. I would like to give you an
opportunity to do it, but I would like you to do it, if you
would, also by commenting in your opinion both before and after
you were the AG what the effects of organizations like the New
York Times, and so on, leaking the most sensitive information
have been as to the ability of us to conduct the war on terror
and as to potential prosecutions.
So I want you to fully answer how you feel we would,
because you are saying to us show me a bill that I would sign,
I am saying to you I fully agree that the leaks of classified
information serving no purpose other than to take the most
sequestered information, in some cases information that even
some Members of the Intelligence Committee haven't received,
and divulge them, has hurt this country. But I would like you
to go from that and, if you will, tell us what we need to do in
order to stop that while respecting the legitimate use of the
press.
Mr. Mukasey. I think, without going into detail or starting
to criticize individual newspapers----
Mr. Issa. I am not restrained from saying Eric Liplaw and
the other people who leak national secrets, but I understand
that you wouldn't.
Mr. Mukasey. They ultimately get even by writing your
obituary, so you have to be very careful.
Mr. Issa. I am from a family of long livers.
Mr. Mukasey. But when a statute and an obligation to
disclose by the Government that electronic eavesdropping is
going on can be tripped even without an attempt to get at
confidential information such as where somebody who is under
legitimate FISA surveillance or under title III surveillance
makes a call to a reporter and that triggers an obligation to
notify the reporter that he or she has been overheard on a
wiretap and then stops the Government from using the fruits of
that wiretap, that statute is seriously misconceived.
I don't think that was the intention of the people who
drafted the statute, but the law of unintended consequences
operates just as much as the law of intended consequences, and
sometimes in a lot more deadly fashion. That is one of many
fashions in which it could operate under this bill.
In addition, there are numerous crimes that are not
included within the list of crimes that are subject to the
exception for being able to get at sources. For example, child
abuse is not one of the crimes that are listed, so that
somebody could do an interview with a child abuser and be able
to claim privilege.
Finally, there is no way to compel a reporter, even when a
balance is struck as between the public interest in disclosure
against the interests in keeping information private, which is
apples and oranges put before somebody who has no other
standard, there is no way ultimately to compel a reporter to
disclose. A reporter is just as free as he or she is now to say
I am not going to disclose, I would rather take a contempt
citation.
There is no requirement, for example, that the information
be put in the custody of the court and the matter then
adjudicated with the information to be disclosed thereafter.
The reporter retains the information. They are just as free as
they are now to disclose it.
It also creates a possible lack of uniformity, given the
fact that this is a jump ball for however hundreds of many
judges there are. Under current standards, uniformity is
achieved by having these matters go up through the Justice
Department and having them decided in a uniform way. As I said,
it is a solution in search of a problem.
Mr. Issa. Thank you.
Mr. Mukasey. As currently drawn.
Mr. Issa. Thank you. Hopefully that gives you a little more
time to speak.
Thank you, Mr. Chairman.
Mr. Conyers. Bill Delahunt, Chair of the Oversight
Subcommittee of Foreign Affairs and a Member of three
Subcommittees on Judiciary.
Mr. Delahunt. Thank you, Mr. Chairman.
Mr. Mukasey. Good afternoon.
Mr. Delahunt. Good afternoon, General. Earlier you
discussed the issue of Guantanamo and used the word ``urgency''
to deal with the issues. I presume that sense of urgency also
goes to the 45 detainees who are currently at Guantanamo who
have been cleared for release by the Department of Defense.
Mr. Mukasey. You are talking about the Uighurs?
Mr. Delahunt. I am talking about 45, including the Uighurs,
detainees who the Department of Defense has cleared for release
who are still being detained at Guantanamo.
Mr. Mukasey. If there are in fact 45.
Mr. Delahunt. Let me suggest that 45 list was given to
Judge Hogan on this past Monday.
Mr. Mukasey. I have no doubt that it is accurate. The fact
remains that we are not allowed to release people unless we can
find countries that are willing to take them with the assurance
that they will not be abused when they get to those countries.
And the State Department has been making heroic efforts at
placing people, and it has been thus far fairly successful. The
list has been sweated down from 775 to something in the
neighborhood of 260.
Mr. Delahunt. There are 270-plus detainees currently at
Guantanamo.
Mr. Mukasey. I think there are slightly fewer than that. In
any event.
Mr. Delahunt. But we find ourselves in a position as a
Nation where we are detaining at least 45 individuals who have
been cleared for release. You indicated that you would object
to having those individuals or any individual repatriated to
the United States?
Mr. Mukasey. Yes.
Mr. Delahunt. Okay. Let me again go to the issue----
Mr. Mukasey. Because the reasons why they have been cleared
for release did not necessarily go to what havoc they could
cause if they came here. They go through a whole lot of things.
Mr. Delahunt. Other countries where they can create havoc?
Mr. Mukasey. No. Other countries where they could not.
Mr. Delahunt. Could not create havoc. That havoc will be
limited by geographical boundaries.
Mr. Mukasey. It doesn't necessarily mean those people who
were picked up by mistake or that they have been ceased to be
dangerous at all.
Mr. Delahunt. The Department of Defense is willing to
release them if they are still dangerous?
Mr. Mukasey. The Department of Defense is willing to
release them under controlled conditions if they can be put in
places where they won't cause us additional harm. The
Department of Defense has leaned over backward, and in some
cases we have all lived, and a couple of us have died, to
regret it.
Mr. Delahunt. With all due respect, these 45, I dare say,
if we should release them and they are still dangerous, we are
doing a disservice to those of our allies that would be willing
to accept them. But having said that, I want to get to the
issue of assurances.
Earlier, you and Congressman Watt had a colloquy about a
case involving the Director, the FBI Director, in which you
didn't have any particular knowledge. Just yesterday we
received a letter that I had authored, along with the Chair,
Mr. Conyers, and Mr. Nadler, regarding the case of Maher Arar.
You responded that you did not believe that it warranted the
appointment of a special prosecutor.
Mr. Mukasey. I think you left out a phrase.
Mr. Delahunt. Well, give me the phrase I left out.
Mr. Mukasey. At this time.
Mr. Delahunt. At this time. Thank you then. Because we have
inspector generals that have stated that in their opinion the
assurances were of such a dubious nature that one of them, Mr.
Irwin, interpreted it to be that there could have been, and I
am not suggesting that is the case factually, but there could
have been an intent, and these are his words, an intent to
render to Syria rather than Canada because there was a
knowledge or a likelihood of torture. If that doesn't trigger,
in my judgment, the need for a special prosecutor, I can't
imagine what would.
Having said that, and having looked at your letter, are you
prepared after your review, pursuant to our letter, that there
was sufficient assurances from Syria that warranted the sending
or the rendition of Mr. Arar to Syria as opposed to Canada?
Mr. Mukasey. I am not certain I understand the question. I
am really not. You say are you prepared, assuming that I
believe there was sufficient assurances, am I prepared to do
what?
Mr. Delahunt. Are you prepared to say that there were
sufficient assurances on the part of individuals in the
Government that emanated from Syria to meet the standards of
the Convention Against Torture and our own domestic legislation
to render Mr. Arar to Syria rather than his stated preference,
which was Canada?
Mr. Mukasey. So far as I am aware, there was a classified
briefing available to the authors of that letter as to what
assurances were received. There can't be any change in the
nature of what assurances were received. Things happen one way.
Either assurances were received or not, and they were received
in a particular way or not. But there was, I believe, a
classified briefing to all three, or available to all three
authors of that letter.
Mr. Delahunt. Well, it was available. I did not attend the
classified briefing because I didn't want to be in a position
to inadvertently discuss it in a public venue. But I presume
that assurances that would be relied on by the United States
Government would be of such a nature that they would come from
high ranking officials in the United States Government,
particularly from a nation that has been described by the
President as a practitioner of torture.
Mr. Mukasey. They were provided. I don't want to get into
classified information either. And so I won't. Assurances were
received by the United States Government. That is all I am
prepared to say in this setting.
Mr. Delahunt. Mr. Attorney General.
Mr. Mukasey. I also find it somewhat unlikely that somebody
would hope to get anything out of anything that went on in
Syria, given the history that you pointed out. So the
likelihoods kind of point the other way.
Mr. Delahunt. Well, let me express my gratitude for you
making that statement. I am still trying to figure out why Mr.
Arar was sent to Syria.
Mr. Mukasey. He was a joint Canadian-Syrian national.
Sending him to Canada could have posed a danger to this
country. Sending him to Syria was safer, provided we got the
assurances, and it is my understanding that we did.
Mr. Conyers. The Chair recognizes the distinguished
gentleman from Indiana, Mike Pence, who serves on the
Intellectual Property and the Constitution Subcommittees.
Mr. Pence. Thank you, Chairman, and Mr. Attorney General,
welcome to the Judiciary Committee. Let me take the opportunity
to thank you for your exceptional leadership on the recent
bipartisan compromise on the Foreign Intelligence Surveillance
Act. You played an instrumental role in achieving a legislative
accomplishment that I believe contributes greatly to our
national security.
As you might suspect, since we have debated it in one of
the largest newspapers, I want to focus my attention on an
issue on which we disagree, H.R. 2102, the Free Flow of
Information Act. You have commented about it earlier, and I
want to take the opportunity to raise some issues and pursue a
line of questioning, but I do so with great respect.
This legislation was introduced about 3 years ago by myself
and my Democrat colleague, Congressman Rick Boucher. You have
made your opposition very clear in this testimony today and in
your public statements.
Your written testimony says that the bill ``would endanger
national security by making it nearly impossible for us to
investigate leaks of even the most sensitive national security
information.'' I am very aware of that. That kind of a strong
pronouncement may be somewhat jarring to a Committee that very
strongly endorsed this legislation and to a Congress that voted
398-21 on October 16, 2007, to endorse this bill.
I want to point out for the record to the Attorney General
that this was supported by the Republican and the Democratic
leadership. It was also supported by the Ranking Members of the
Intelligence Committee and the Armed Services Committee and the
Chairmen of those Committees. I think it was supported
precisely because we did endeavor to deal thoughtfully and
carefully with precisely the issue that seems to be the focal
point of your objection; namely, concerns about national
security.
As you are aware, in the legislation in the House version
of the bill we only provided a qualified privilege for
journalists and made national security the leading reason for
which the shield could be pierced. Our legislation permits
compelled disclosure to prevent or identify the perpetrator of
an act of terrorism against the United States and prevent
significant and specified harm to national security.
And you made reference to a child abuse exception not being
included in the bill. I would think that would be probably
included by inference in the bodily harm exception in our bill,
but I know the Senate includes child abuse in their
legislation, and I am open to it.
It also allows compelled disclosure of sources in cases
that involve the authorized disclosure of properly classified
information that caused or will cause significant or
articulable harm to national security.
I think the inclusion of that very careful structure that
does at a point call upon our judicial branch to exercise
discretion, balancing our interest in national security with
our interest in preserving the liberties upon which this Nation
was founded, seems to be a focal point of your concern.
But I want to begin by assuring you, General, that as the
Congress tried to fulfill its role in addressing both our
national security, as well as preserving what we are trying to
secure, that we did so in a way that made national security
interests truly paramount, which of course comes to no surprise
Congress would act in this case.
As you know much better than I, being an authority in the
law, in 1972, the Branzburg case, Justice White virtually
invited Congress to develop a Federal media shield statute,
saying that Congress had ``the freedom to determine whether a
statutory newsman's privilege is necessary and desirable and to
fashion standards and rule as narrow and broad as deemed
necessary.''
I guess my question would be, with a little latitude from
the Chairman to give you a chance to respond, is you made the
comment today that 10 angels swearing on bibles wouldn't change
your mind.
Mr. Mukasey. That is not what I said. I said wouldn't
change what is in the bill.
Mr. Pence. Wouldn't change what is in the bill. Let me say
if 10 angels swearing on bibles wouldn't change your view of
this bill, would 40 American journalists subpoenaed, questioned
or held in contempt do it?
I mean you said this is a problem or a solution in search
of a problem. The Justice Department has argued that it has
only approved 19 source-related subpoenas since 1991. However,
the number does not include the number of subpoenas issued for
non-source information. Also, since 2001, at least 19
additional journalists have been subpoenaed by both Federal and
special prosecutors, and you yourself know the Department of
Justice guidelines do not apply to civil litigants or special
prosecutors.
I would say this is not a solution in search a problem,
this is a constitutional statutory response to a rising erosion
of our first amendment freedom of the press.
Let me make one last point, if I may, at the Chairman's
indulgence. I must express some disappointment at the fact that
I in my 3 years as a working legislator on this issue, and most
of that time you were not in your present role so I don't
direct this to you, as you speak about the need for language, I
don't believe the Justice Department has offered any language
to this Committee relative to what would be an acceptable
version of a Federal media shield statute.
My question would be, recognizing that, as you said in your
testimony, the Administration has a ``constitutional
responsibility to safeguard classified information,'' and I
know you recognize the Administration also has a constitutional
responsibility to protect the Constitution and the first
amendment freedom of the press, can we anticipate, as the
Senate may well be taking this bill up in the coming days, may
we anticipate a more constructive engagement from the Justice
Department in fashioning this legislation in a way that meets
both the interests of our liberty and our security, or should
we continue to anticipate as legislators what I would
characterize as the strident opposition of the Justice
Department to creating the statutory newsman's privilege that
the Supreme Court acknowledged could be created 36 years ago?
Mr. Mukasey. I guess I am going to ask for both latitude
and longitude from the Chair. Say a minute or minute and a half
to respond to the 6 minutes or so that I just heard.
First, three points. First of all, I am not questioning
anybody's good faith in the drafting of this legislation,
Congressmen or anybody else, but I think it is possible to have
a disagreement in good faith.
Mr. Pence. So do I.
Mr. Mukasey. Let's focus on two of the points that you just
mentioned. One, which was a showing that the information was
properly classified. That raises a host of problems. We are
talking about procedurally, substantively. Does that require
the Government to come in and disclose yet more classified
information to show that the classified information was
properly classified.
A closely related problem is the showing that the danger
exceeds the value of disclosure. Passing for a minute the fact
that that is a complete imponderable, totally imponderable,
that would require the Government to come in and basically make
a bad problem worse by articulating precisely how threatened
disclosure could cause yet more harm. I don't think that is a
solution.
Now, as I said, I am willing to talk to anybody who will
talk to me, but we have in place a system that closely
restricts the ability to subpoena reporters and the ability to
subpoena source information. I think that system has proved
adequate. I am willing to talk to anybody who thinks it hasn't.
But what I am not willing to do is to take steps that will
essentially do more to protect leakers than it does to protect
journalists.
Mr. Pence. Thank you, General. I thank the Chairman for his
indulgence.
Mr. Conyers. The Chair recognizes Steve Cohen of Tennessee,
who serves on the Commercial and Administrative Law
Subcommittee, as well as Intellectual Property.
Mr. Cohen. Thank you, Mr. Chairman. General, I appreciate
your taking this position and improving the image of the
Justice Department in the Nation's eyes. I appreciate your
looking into the issue we talked about during the break with
the football stadium in Memphis.
Mr. Mukasey. Which I will.
Mr. Cohen. Thank you. The University of Michigan has, I
think, about the same number of seats we do, but they have
100,000 thousand people per game and we have 25,000. That is
somehow to be factored in.
Mr. Mukasey. Sorry to see there is less interest in your
team than the University of Michigan.
Mr. Cohen. We have emphasized academics more, I guess.
Mr. Conyers. The gentleman's words will be taken down.
Mr. Cohen. Yes, please.
Paul Minor, an attorney from Mississippi, is in prison now,
and we have discussed his case. There is some thought that he
might have been--politics might have influenced his
prosecution. Without getting into the bases of the facts, and I
know there have been allegations of prosecutions in other
cases, Mr. Minor has an appeal, which I think the Office of
Professional Responsibility is looking into. But at the present
time he is seeking a release, temporary release pending his
appeal because his wife is dying of cancer and she may be, I
believe, in her final months.
I would just like to ask you for an assurance that you will
personally review the matter and make sure that within the
parameters that are possible you could take into consideration
the facts that led to his conviction and the particular
situation with his wife.
Mr. Mukasey. Well, if OPR is conducting an inquiry, and I
believe they are, then I think I will await, and have to await,
I should await the outcome of that because I may be called to
act in response to it. So far as the other situation, as I
understand it, and I don't know precisely, I know the BOP has
the humane release program that relates to the illnesses of
prisoners. I don't know whether they have a humane release
program that relates to relatives of prisoners or how close he
is to the release date. I can try to make inquiry as to what
the precise situation is.
Mr. Cohen. Thank you. I think he is nowhere near the
release date, and I think possibly a review of the policies
because if somebody's spouse is dying----
Mr. Mukasey. There have been situations in which people
have been taken from custody for visitation and so on. I don't
want to get too far ahead of the curve, but I have encountered
that as a district judge. Let me find out what the policy is.
Mr. Cohen. Thank you, sir.
You mention in your testimony that violent crime remains
near historic lows in the United States. That is the quote. Am
I reading this----
Mr. Mukasey. There have been spikes in certain areas, I
recognize that. Violent crime is down something like 1.6
percent, which sounds like a modest number, but that is a lot
of people who haven't been victims.
Mr. Cohen. That can't be historic lows. Crime is really
pretty high right now.
Mr. Mukasey. I am not familiar with crime statistics from
the founding of the republic to today. I believe that that was
something of a metaphor. It is low by current standards. That
is not to say that it is tolerable.
Mr. Cohen. My City of Memphis has a high crime problem and
violent crime is high there and people would not ever think it
is not. You have programs that are excellent concerning Project
Safe Neighborhood, and you mention you will be offering
regional training throughout the United States. What is the
process by which the City of Memphis, Tennessee, and the Ninth
Congressional District could participate in one of those
regional opportunities?
Mr. Mukasey. Localities essentially compete based on a
showing of need and showing of their ability to use the
resources along with Federal authorities. I know there is a
tenth site program relating to gangs, and if I can find it in
my notes, I can find out whether Memphis is one of those
locations
Mr. Cohen. I don't think it is, from your notes. If it is
possible you can consider Memphis, we certainly need the help,
and if I could push it along I would be happy to.
You mentioned on Mr. Wexler's question about the Vice
President, you said in the abstract, No, he would not have
executive privilege extended to him. Can you go a little
further with that? Mr. Addington was here and said that Vice
President Cheney was not either the executive or legislative,
he was basically a barnacle attached to the legislative branch.
Why do you see him floating and why would he not--does he have
executive privilege?
Mr. Mukasey. It is my own belief that the Vice President is
a member of the executive branch. I know that there has been a
discussion about where his office is located and lots of sort
of abstract debate about that. The Vice President is obviously
one of the closest advisers to the President and he is a close
adviser to the President within the executive branch. That, in
my view, is where he sits.
Mr. Conyers. The gentleman's time has expired.
Mr. Mukasey. Abstract theory of whether there is or isn't a
barnacle status.
Mr. Cohen. In the tradition of Congress, since my time has
expired, I will yield the remainder of my time.
Mr. Conyers. The Chair recognizes Randy Forbes of Virginia,
former Ranking Member of the Crime Subcommittee, now on
Immigration and the Crime Subcommittee.
Mr. Forbes. Thank you, Mr. Chairman. Mr. Attorney General,
thank you so much for being here. I want to compliment you
today for handling such a host of issues. I just kind of jotted
them down today. Today they have tested you on oil speculators,
mortgage lenders, terrorists, spies, illegal immigration,
espionage, airline mergers, torture, and you have done just a
remarkable job of trying to marshal all that.
I also know that you have a lot on your plate in terms of
having to deal with all these issues around the country, and
from time to time you have to allocate your resources. One of
the issues that came up today was gangs. We have got about
850,000 criminal gang members, depending on what statistic you
look at, across the country. Obviously we have to allocate
resources, especially from the Federal level, in dealing with
gang violence. One of the particular tickups probably in crime
today might be gangs if we had any that we are looking at.
The statistics we have had come before our Committee so far
is that if we looked at the most violent criminal gang in the
country today, it probably would still be MS-13. Is that a fair
assessment?
Mr. Mukasey. They are pretty close. Part of the problem is
that they seem to be in it, oddly, for the violence, not
entirely for the money.
Mr. Forbes. One of the things that has been bad is not only
have they done the violent acts, but they tend to give a
copycat to so many other gangs to try to catch up to them. The
other statistic we have had on MS-13, for example, has been
that, with testimony, we have had as much as 75 to 85 percent
of their members could be here illegally in part of those
gangs. I don't ask you to master those statistics today, but
that is at least what we have had presented to our Committee. I
assume it is kind of a ballpark.
Mr. Mukasey. It would not surprise me.
Mr. Forbes. My question is if we have the most violent
criminal gang, one that is kind of being a pattern and copied
by other gangs of MS-13, 75 to 85 percent of whose members are
here illegally, if at some point in time, and I don't expect
you to have this information with you today, but at some point
in time if you could give us any information your office has
on, one, how those individuals go from crossing the border to
joining those gangs; number two, if there are any prevention
programs out there that have a proven record, not just an
anecdotal record but a proven record of stopping those
individuals from joining the gangs because at least what I have
seen is that prevention programs might work in other areas. But
if you are coming in here illegally, those programs aren't
reaching that 75 to 85 percent, but perhaps you have some that
you can suggest. Obviously we want to allocate our dollars
where they best go.
The final thing though is: Is there evidence that going
after those gang networks does have an impact on reducing the
gang violence, because we are trying obviously to allocate our
resources at the best possible way, just like you are trying to
do?
Mr. Mukasey. I think there is. I was down in, I think,
South Carolina, where they announced the roundup of a huge
number of MS-13 gang members and we had with us a police chief
from El Salvador from which that gang is supervised and which
cooperated in the roundup and in the intelligence.
So we find that when we cooperate not only with State and
locals, who were at that press conference as well, but also
with our international partners, specifically in the case of
MS-13, Mexico, Honduras, El Salvador and Guatemala, which is
where a lot of them are at, we find that we can have much
greater effect.
Mr. Forbes. When you do that, we have at least had some
testimony before the Committee that the subsequent gang
violence does reduce down after you have taken some of those
networks out. Is that fair to say?
Mr. Mukasey. It is definitely fair to say, and we expect it
to drop in that particular location as well.
Mr. Forbes. Mr. Attorney General, I just leave you with,
not for today, but if anybody on your staff has any prevention
programs that have been shown to work for those people coming
in illegally, if you could get them to us. I just haven't seen
any. If you have any, if you can present them to us.
Mr. Mukasey. I will get what I can.
Mr. Forbes. Mr. Chairman, I yield back.
Mr. Conyers. Thank you. We will have one more Member ask
questions before we recess for four votes, and that is Adam
Schiff, a former Assistant United States Attorney from
California, who serves with distinction on the Intellectual
Property Committee.
Mr. Schiff. Thank you, Mr. Chairman. Thank you, Mr.
Attorney General, for spending the afternoon with us.
I will follow up with your office on a couple of issues
that we have discussed earlier involving DNA evidence and some
of the issues raised in Arizona. But I had the opportunity
during your remarks to read your speech at the American
Enterprise Institute on principles in dealing with the
Guantanamo detainees and would like to follow up on a couple of
points that you made in your speech.
First of all, I wanted to mention that I made several
efforts with your predecessor and his predecessor to get the
Administration and Congress working together to set detainee
policy. I appreciate your outreach to the Congress and
encouragement that the Congress set these rules rather than
have the courts decide. I think that makes a great deal of
sense and would help us avoid a patchwork of court decisions
that take up a lot of time and don't bring us any closer to a
good result.
But two of the questions I have, the first is you make a
point I think in your conclusion that people at Guantanamo--you
take issue with the idea that people should be charge or
released. I think the issue that that raises is if you don't
charge people at Guantanamo and if there is a category of
people not charged and yet not released, what is their status?
How do you define what legal rights should attach to a group
that has not been charged with a crime and yet, your argument,
should not be released?
One of the arguments that I have been making with the DOD
and DOJ for some years now, and I introduced a bill in 2002 to
adopt or adapt the Uniform Code of Military Justice to be used
at Guantanamo, couldn't we establish a baseline offense of
being an unlawful enemy combatant such that there would be
something that everyone could be charged at if there is the
evidence to support it so that you don't have this conundrum of
having people who are not charged and not yet released?
Mr. Mukasey. I guess we could. The people who are detained
there are, as far as I know, uniformly were people who fit the
classic definition of an unlawful combatant; that is, not
fighting in uniform, not carrying their weapons openly. They
did not target only military targets but rather targeted
civilians and were not bound by the laws of war.
So, yes, we could establish such a regime. But the fact is
that we detained thousands upon thousands of prisoners of war
who were legitimate detainees during World War II. Not one of
them, not one of them was permitted to file a habeas petition.
They were all held for the duration, notwithstanding they had
done nothing, other than----
Mr. Schiff. I understand that, but the problem you also
point out is that those wars had an end that you could see
coming at some point.
Mr. Mukasey. You couldn't always see it coming. You
couldn't see it coming in 1942, 1943. We had people in custody
at this time.
Mr. Schiff. I think even then you could see that the war
would end. This is a war of a different caliber, which may go
on indefinitely. As you point out, there may never be a VT day,
Victory over Terrorism day. The fact that these questions are
difficult doesn't mean they are going to go away, and I think
that we need to grapple with them. I would just encourage the
Department to consider a situation where people are charged.
I want to give you more time on that, but I want to throw
out my second question, too, so I don't lose the opportunity to
ask you about it, and that is I think you make some very good
suggestions in the six points you make. One of the suggestions
you make though may be problematic for a couple of reasons, and
that is the idea that the courts should be prohibited from
releasing people in the United States--not just being released
but being brought to the United States for testimony or court
proceedings. That presupposes Guantanamo doesn't close. We have
two presidential candidates, both who have said Guantanamo
should close.
Would it be wise for us to enact a law that says you can't
bring people to the U.S. for court proceedings if in fact both
candidates for the presidency intend to close Guantanamo?
Mr. Mukasey. I think they both say, and I am not purporting
to be expert on all of their pronouncements, which have at
times varied from one another, both within each camp and
between the camps, but I don't think anybody says just close it
off, turn off the lights and go home. I think they said you
close it responsibly, and responsibly means just that.
Mr. Schiff. Well, I certainly agree with that, but that
doesn't ultimately answer the question of what do you do with
the people in Guantanamo if you have established a law that
says you can't bring them for legal process to the United
States?
Mr. Mukasey. One of the things I was going to say before is
you have an ongoing obligation, an ongoing ability to assess
the dangerousness of each particular person you have got. But
all of them are aliens who were caught abroad under
circumstances in which they were in combat with either U.S.
troops or those with whom we fight or were supporting those in
combat with U.S. troops.
Mr. Conyers. The gentleman's time has expired. The
Committee stands in recess.
[Recess.]
Mr. Conyers. The Committee will come to order.
The Chair recognizes Judge Gohmert, who serves with
distinction on the Immigration and Crime Committees and is the
acting Ranking Member of the full Committee.
Mr. Gohmert. Thank you. I appreciate your not saying I was
the rankest Member on the Committee.
But, Attorney General Mukasey, thank you for being here.
Thank you for the class you do bring to the office--no
disparagement of anybody that served before you. But I know it
is tough, as a former judge, for you to sit through so many
questions and be thinking you just need to be ruling that that
is immaterial, that is irrelevant, that is multifarious, that
is repetitious, and not having that opportunity to get things
in order. I know it is difficult, but you have done well, and
we appreciate it.
A couple of things I wanted to touch with you on. One of
them, going back, of course, we have had a case saying that
raid was apparently improper, and this was before your time,
and it is ongoing litigation; I wouldn't ask you to comment on
that anyway.
But as far as procedure, I recall reading an 80-page
affidavit in seeking to make the raid on Congressman
Jefferson's office. There was a description of a procedure
where within DOJ there is some group or division that is set up
to do an analysis for things that may be protected or
privileged.
Is that your understanding of how that process works? If
there is something that may come out privileged or protected in
order to keep from tainting the rest of the evidence, do you
have a firewall capacity there?
Mr. Mukasey. We do. I mean, it happens frequently in cases
where certain information has to be walled off from other
lawyers working on a case. That is not uncommon. I don't know
of any particular division within the Department of Justice
that is devoted to that, but it wouldn't surprise me that, in a
particular case, some group of lawyers would be lawyers to whom
the material would be disclosed so that it wasn't disclosed to
others.
Mr. Gohmert. And that would, I guess, be in an effort--I
understand some civil firms do this, where they have a group
where there is a firewall and they make sure information
doesn't pass to the other side if it is privileged, and you
keep those groups separate on a given case. Is that correct?
Mr. Mukasey. Yes.
Mr. Gohmert. Anyway, I had been asked about that, and I
appreciate you clarifying that.
But going back to the Guantanamo case and the Boumediene
case, I know Justice Scalia had said in his dissent,
``Henceforth, as today's opinion makes unnervingly clear, how
to handle enemy prisoners in this war will ultimately lie with
the branch that knows least about the national security
concerns that the subject entails.''
And then, of course, Chief Justice Roberts had indicated
that the Detainee Treatment Act of military tribunal hearings
followed by Article III review looks a lot like the procedure
the Hamdi case blessed. If nothing else, it is plain from the
design of the DTA that Congress, the President and this
Nation's military leaders have made a good-faith effort to
follow our precedent. The court, however, will not take yes for
an answer.
And, again, in Justice Scalia's dissent, he said, quoting
again, ``In short, the decision is devastating. The game of
bait-and-switch that today's opinion plays upon the Nation's
commander-in-chief will make war harder on us. It will almost
certainly cause more Americans to be killed. That consequence
would be tolerable if necessary to preserve a time-honored
legal principle vital to our national or constitutional
republic, but it is this court's blatant abandonment of such a
principle that produces the decision today.''
There were many of us that believed that, based upon the
Hamdi decision and the Hamdan decision in 2006, that Congress
had acted in good faith; we had done as the Supreme Court
directed. I had serious concerns about the executive branch
being able to formulate what military tribunals would be used.
I had concerns about that as an executive branch function. But
once Congress did it, it certainly seemed to be in line with
what the court had previously ruled.
So it appears to me, just like Justice Scalia said, we have
a branch, the judiciary, the Supreme Court, that really wants
to involve itself in both the executive and legislative effort
here.
I don't know if we will have a chance to take this up and
discuss it, put forth legislation before the end of the year. I
know time is short. But I do have a bill here that I intend to
file in the next few days that will basically provide for the
transport of the enemy combatants detained at Guantanamo Bay,
Cuba, to Washington, D.C., where the Chief Justice of the
Supreme Court will assist the other Justices in order to more
effectively micromanage the prisoners being detained. Of
course, there can be no better way for the U.S. Supreme Court
to micromanage than if they are there on the ground, using the
same restaurant facilities and taking care of them there.
My time has run out, but I want you to be aware that we are
trying to deal with it from this side too, to help the Supreme
Court in their efforts to micromanage.
Mr. King. Mr. Chairman, I would ask unanimous consent that
the witness be allowed to respond.
Mr. Conyers. Without objection.
Mr. Mukasey. I can't really comment on that. The Boumediene
decision is the law of the land, and my speech was based on our
going ahead and accepting it as the law of the land. I am going
to limit my comments to that. Thank you.
Mr. Gohmert. I didn't wish to demean the decision,
necessarily. Maybe I am being tongue in cheek in saying that.
But I have to take it as lawful too, because I believe in the
Supreme Court's power. So that is why I was going to file that
bill, to assist them in furthering that ambition.
Mr. Conyers. The Chair recognizes Artur Davis, a former
Assistant United States Attorney, who serves with distinction
on the Immigration, the Crime and the Constitution
Subcommittees of Judiciary.
Mr. Davis. Thank you, Mr. Chairman.
Attorney General Mukasey, good afternoon to you.
I have two areas I want to touch on, and because of time
limits, I will try to move to both of them in an expeditious
fashion.
The first one has to deal with a matter that Ms. Sanchez
raised with you and that I raised with you in our phone call
yesterday, the Siegelman prosecution in the State of Alabama.
As you know, there have been a number of questions raised about
possible political influence in that prosecution. I want to
touch on something that has not been raised publicly, though,
in any other forum, and this is the context for it.
As you perhaps know, there were e-mails that surfaced after
the trial, after the conviction, which suggested that various
jurors, two in particular, had engaged in misconduct, that
there had been deliberations outside of the jury room, that
they had consulted the Internet and done research and engaged
in various other conduct that I think you, as a former judge,
would certainly characterize as improper.
Over a period of time, for a number of months, there were
motions filed with the District Court urging a new trial. There
was a protracted dispute over whether or not--could I ask my
colleague to finish her conversation outside, actually? Would
you mind? I didn't mean to interrupt you.
But there were a series of hearings back and forth and a
series of arguments back and forth on whether or not there
ought to be some kind of evidentiary hearing. The Government
took the position that an evidentiary hearing had to be very
limited in nature. And this went on for a number of months.
In July of this year, the Chief of the Appellate Section of
the Criminal Division of the Department of Justice, Ms.
Stemler, notified defense counsel that she had just learned
that while the district judge, Judge Fuller, was considering
some of the various motions for a new trial and the motions to
reconsider for a new trial, that the district judge had had an
ex parte communication with the U.S. Marshals Service.
If I understand the facts correctly, the U.S. Marshals
Service had been instructed by the U.S. Attorney's Office to
conduct its own investigation of the authenticity of the e-
mails. The U.S. Marshals Service reached the conclusion that
the e-mails were not valid, and apparently shared that
conclusion with the district judge while some of the motions to
reconsider were going on.
Now, you were a district judge, and a very distinguished
one, Mr. Mukasey. Would there have been any circumstance in
which you would have allowed yourself to have a communication
with a branch of the Government, the U.S. Marshals Service, of
an ex parte nature, while you were considering a motion?
Mr. Mukasey. Let me just take a step back. You were kind
enough to point out that letter yesterday, and I appreciate
that. I read the letter. I read it, the facts, somewhat
differently.
What happened was the jurors' coworkers got copies of the
letters that were already before the judge. They turned them
over to the jurors. The jurors turned them over to the
marshals. The marshals didn't know what to do with them and
turned them over to the U.S. Attorney's Office. And they gave
them--since they had been sent by mail, they gave them to the
Postal Service. And then the U.S. Attorney who was involved in
the prosecution turned the whole matter over to somebody else
who was not at all involved. And the Postal Service reached
whatever conclusions they reached, apparently told the Marshals
Service about it, and the Marshals Service told the judge about
it.
Mr. Davis. Well, let me just quote one sentence from the
letter. On page 2 of Ms. Stemler's letter she says, quote,
``While the investigation was ongoing in early April 2007,
after the second evidentiary hearing on November 17, 2006,''
but I will add parenthetically while various other motions
related to the same matter were being considered, she says,
``representatives of the United States Marshals Service
apprised Chief Judge Fuller that the postal inspectors were
investing the receipt of e-mails, and they concluded that the
purported e-mails were not authentic. The marshals who spoke to
Chief Judge Fuller have advised us that the chief judge did not
solicit this report.''
So I understand there was a lengthy procedural sequence
here, and there were multiple motions to reconsider, but they
all touched on the underlying question of these e-mails.
So I ask again, when you were a U.S. district judge, would
there have been any instance in which you would have allowed
yourself to have an ex parte communication with a branch of the
Government while a motion was going on?
Mr. Mukasey. There were times when I got ex parte
communications from branches of the Government for good and
proper reasons. I don't know what the reason was here, and I
don't know whether the judge had any choice about whether to
listen.
Mr. Davis. Well, would it trouble you, though, Attorney
General Mukasey, because, again, this is an important matter--
--
Mr. Mukasey. It is important, and I would like to finish.
I don't know what role those copies of e-mails played in
the larger matter that is under review by OPR, so I can't--I
mean, I am going to get a report from OPR at some point about
this whole matter. I may be called on, if there is a finding of
misconduct, to pass upon whether there ought to be a sanction
against somebody or not and, if so, what it ought to be. So I
can't really start offering opinions about it.
Mr. Davis. I understand. But let me just narrow in, so we
are at least clear on what the alleged facts are.
The very subject of these hearings was whether or not the
e-mails were authentic and whether or not they influenced the
jurors. You can't get to inquiry B without getting to inquiry
A. So it was very much at issue whether or not the e-mails were
authentic.
And what troubles me is the notion that the Government
asked the Marshals Service, who then asked the postal
inspectors, to conduct an investigation of their authenticity,
didn't share that fact with defense counsel, shared it with the
judge. Because it raises, Attorney General Mukasey, the obvious
question, whether the judge's rulings might have been
influenced by information that he had that wasn't available to
defense counsel.
Mr. Mukasey. I don't know what the basis was for the
judge's rulings. I haven't seen those.
As you know as a former assistant, there is an enormously
heavy presumption against undermining the validity of a jury
verdict. All kinds of things have been shown or testified to
about what jurors did or didn't do during deliberations that
have not resulted in the overturning of a verdict.
I don't know what the basis was for the judge's ruling here
or how it would fit into the grander story.
Mr. Davis. Let me ask another quick question. Ms. Stemler
disclosed this information on July 8th of this year. Do you
know the circumstances in which Ms. Stemler learned about these
ex parte contacts?
Mr. Mukasey. I do not.
Mr. Davis. Have you had a chance----
Mr. Mukasey. I mean, it appears to indicate that she came
upon it by happenstance during the course of her review of the
documents. And she, as she put it in the letter, in an excess
of caution, disclosed them.
Ultimately, as the letter makes apparent, it was the
Justice Department that disclosed it.
Mr. Davis. Well, the concern, again, would be this: One
year after this ex parte communication, 1 year and 3 months
after the ex parte communication, apparently the Marshals
Service disclosed it to the Government, which would raise the
obvious question whether the Marshals Service has disclosed all
they know to the Government now.
I am certain Ms. Stemler has made representations that she
knows to be accurate, but it would raise the obvious question
as to whether Ms. Stemler or the Department have conducted any
investigation to determine whether her representations on page
2 of this letter are complete. Because, frankly, it appears
that the Marshals Service may not have told Ms. Stemler the
relevant facts until very recently.
Mr. Mukasey. I don't know when they told her the relevant
facts. It doesn't appear to me that there is any more for the
Marshals Service to have known, since this appears to have been
a singular incident.
Mr. Davis. Would it trouble you that the Marshals Service
didn't immediately disclose to the Justice Department that they
had had contacts with Judge Fuller?
Mr. Mukasey. Marshals, as is obvious from this, are not
lawyers. It might have been disclosed sooner. It ultimately----
Mr. Davis. Should Judge Fuller have disclosed that to
defense counsel?
Mr. Mukasey. I am not going to get into how Judge Fuller
behaved, because I don't know the full circumstances under
which they were disclosed to him, what the basis was of his
ruling or when it was rendered. And all of this is going to be
the subject of a report to me.
Mr. Davis. Last question: Are we confident that the
prosecution did not have any communications with Judge Fuller
about the Marshals Service investigation?
Mr. Mukasey. All I can say is I see nothing in this letter
to suggest that. Whether they did or didn't may emerge from
other facts that I don't know. That may be part of the OPR
investigation.
Mr. Davis. Should the Department ask them?
Mr. Mukasey. I think that I ought to await the OPR report
before I make judgments about who knew what when and disclosed
what to whom.
Mr. Davis. Will we have a chance to see the results of the
OPR report?
Mr. Mukasey. Absolutely. If there is a finding of
misconduct, you will see the report itself. But as I understand
it, and I learned this only recently, Congress was itself the
complainant in that case, and the complainant is always
notified about the result, about the outcome. So the answer to
that last question is yes.
Mr. Davis. All right. Thank you.
Thank you for being indulgent with my time, Mr. Chairman.
Mr. Conyers. Steve King of Iowa is a Member with great
distinction on the Immigration Committee and on the
Constitutional Committee as well, and he is recognized at this
time.
Mr. King. Thank you, Mr. Chairman.
I want to thank Attorney General Mukasey for his very
astute testimony here today. And I have had that same
observation the previous time you were before this Committee,
General.
I would like to first take up the issue--I was listening to
the gentlelady from California, the Chair of the Immigration
Subcommittee, Ms. Lofgren, when she brought up the issue of the
caseload in the circuit courts and in, particularly, the Second
and the Ninth, as I recall, and that 40 percent of those cases
are immigration cases.
And I would ask you if you are aware and if you would
comment on those two particular courts in particular, on
whether it is a practice for them to grant automatic stays of
deportation or removal to any alien who files an appeal?
Mr. Mukasey. Again, I am working off lore, L-O-R-E, not
law, L-A-W, but I believe it is the normal practice, because it
used to be the practice for DIA judges to do that. I don't know
for a fact. I think that is the case.
Mr. King. Okay. If we could operate under just my
presumption that it is, if we are operating under my
presumption that it is and my information that that is the
practice, to grant the automatic stay, what would you expect to
be the behavior of the defendants if they got an automatic stay
and were allowed to stay in the United States until the issue
was completely adjudicated through the Circuit Court?
Mr. Mukasey. I can't speculate on that. I really can't. It
depends, I suppose, on whether they have a good-faith basis on
asking for asylum or not. If they have a good-faith basis, they
behave themselves. If they don't, they don't.
Mr. King. I would submit that if someone comes to the
United States illegally, they are going to seek to stay here,
and if they know that they are automatically granted a stay of
deportation, then that would be the natural process to utilize
that automatic extended period of time. I think that would be a
human nature response.
So I will ask you a legal question then, perhaps. And that
is that, looking at this caseload that is here, there are two
ways to resolve that, among others, but one of those two ways
would be to put more resources in the courts, and the other way
would be for Congress to address it from a statutory
perspective, to narrow the avenues through which people can
appeal.
Would you have any recommendation to the Congress on how we
might narrow the avenues through which people could appeal?
Mr. Mukasey. I don't right now. I mean, I have not thought
through that subject, and I can't really make a concrete
proposal.
I know, only from having been there, that the Second
Circuit has created essentially two dockets, one that gets
arguments, one that doesn't. And a lot of these immigration
cases goes on the one that doesn't. And that is unusual for
that court, which used to grant oral arguments in every case.
But more than that, I can't tell you.
Mr. King. And when you asked the Congress to take a look at
the means by which we would deal with enemy combatants, not a
specific legislative recommendation, but a conceptual point
that you have made to us, I will just say I appreciate that. I
think it is appropriate. It fits what we need to be doing as a
Congress.
I would like to go further down that path, but in the time
that I have, I think instead I want to make a point here and
ask your comment on this.
In the non-border Federal districts, the number of illegal
aliens being prosecuted for Federal crimes has increased. And,
for example, last year, more than 40 percent of the Federal
defendants in Oregon were illegal aliens. And when we go to
some of the other internal districts, non-border districts,
Colorado, Western District of Arkansas, Middle District of
North Carolina, which may have a border actually, and Nebraska,
all of those had more than 25 percent of their Federal
defendants were illegal aliens. And here are two others in this
list: the Northern District of Iowa, the Southern District of
Iowa.
So, is this increase, is it reflective of policy of
prioritizing prosecution of criminal aliens, or is it
reflective of a flood of criminal aliens that we have to deal
with?
Mr. Mukasey. I think we prosecute people who commit crimes,
and States prosecute people who commit crimes.
I know that the facts that you have outlined are something
of a drain on our resources, because we are obligated to
supplement the budgets of those States that have illegal
Federal aliens among their prison populations, to help them
deal with that problem, because these people are illegal
aliens. So we are sympathetic to it and trying to do something
about it.
Mr. King. And you will be aware that in section 642 of the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996, which was very much put together by Mr. Smith, our
Ranking Member, there is a prohibition in there for sanctuary
cities. It prohibits those cities from refusing to allow their
employees to cooperate with the Federal immigration
authorities.
I would just ask you on that, what are you able to do to
enforce section 642, the ban on sanctuary cities?
Mr. Mukasey. We try to enforce it. We try to prosecute
people wherever they are found, whether they are found in
sanctuary cities or not. Obviously that complicates the task.
I recognized before that there is a certain conundrum in
that you don't want to discourage people who have been the
victims of crime from reporting crime and create, essentially,
a favored class, favored from the crook's standpoint, of
victims who then can't report crimes.
But, by the same token, we obviously oppose the concept of
sanctuary cities and are doing everything we can.
Mr. King. Well, I would point out there was a triple murder
in San Francisco, and the alleged perpetrator was a criminal
alien who had been encountered by local law enforcement and
then released under the sanctuary city policy of San Francisco.
And now a father and two sons of lying in their graves out in
western California.
And those kind of issues, I would suggest, are paramount to
any kind of sensitivity about who might report a crime. And, in
fact, I would submit that any analysis of how people will
respond with information, if that means suspending enforcing
the law, I don't think that is an appropriate consideration
with regard to the Department of Justice.
Mr. Mukasey. I don't think anybody favors suspending
operation of the law when you talking about somebody taken into
custody. I was talking about somebody reporting a crime. Those
are two different things.
Mr. King. Yeah, I understand. And it is a significant
nuance. However, we still have the policy of section 642 that
is not being enforced effectively.
And I will point out the way they are getting around it,
for the record, is they prohibit their city employees from
gathering information. And they have held seminars across the
country, provided that as a loophole in this statute.
I would ask if it be your recommendation that we close that
loophole?
Mr. Mukasey. Okay.
Mr. King. Does that mean it would be?
Mr. Mukasey. I believe it would be.
Mr. King. And I thank you very much, Attorney General
Mukasey. I thank you for your testimony and for submitting
yourself to this very public situation here today. It was a
hard job to step into, and you are doing a very good job. I
thank you.
Mr. Mukasey. Thank you very much.
Mr. King. I yield back.
Mr. Conyers. Keith Ellison, a member of the defense bar, a
Member of the Subcommittees on Immigration and Constitutional
Law.
Mr. Mukasey. Good afternoon.
Mr. Ellison. Good afternoon, sir.
Could you talk a little bit about the recent reports that
have come out regarding FBI investigations and their new policy
or guidelines that would allow them to take into consideration
issues of race, religion, things like that? Could you just
elaborate on that?
Mr. Mukasey. I think what you are alluding to is reports
that there are going to be issued new Attorney General
guidelines and speculation about whether or not they would
allow that practice.
What I will tell you is that the previous guidelines that
forbid the predicating of investigations simply on somebody's
race, religion, exercise of first amendment rights, will remain
in place. The previous guidelines in all respects on that will
remain in place.
The purpose of putting the new guidelines in place is to
rationalize and organize a process that has really been going
on since after September 11th, 2001, on the recommendation of
at least the 9/11 Commission and the Silberman-Robb Commission,
that the FBI, in addition to being a crime-solving
organization, become an intelligence-gathering organization.
There then ensued essentially two sets of guidelines: one
on how to open criminal investigations, the other on how to
predicate national security investigations. And, at times, they
were cross-cutting. The same behavior was described in
different ways and produced different results. So what we are
going to do is put them in order. But the protections I
mentioned will remain in place.
I think the new guidelines will also make it apparent that
concurrent with the growth in FBI intelligence gathering has
been a growth in monitoring, both within the FBI and in the
National Security Division of the Justice Department, and
oversight, so we can make sure that the FBI is not doing what
you suggested the new guidelines would permit.
Mr. Ellison. Well, I am glad to hear you say that on the
record. It is important. I just want to point out----
Mr. Mukasey. Those guidelines have not yet been released.
Mr. Ellison. What kind of input can Members of Congress
have into what the guidelines might reflect?
Mr. Mukasey. Members of Congress will be briefed on the
guidelines before they go into effect. The guidelines are
already in the process of being drafted. They will be signed by
me. That said, they are guidelines, they are not statutes, and
they can be changed when, as and if there is reason to change
them.
What I plan to do is get them in final shape, review them,
sign them, and then, before they are implemented, have Congress
briefed on them, show them to Congress, so that everybody
understands what they are and, more to the point that you just
made, what they aren't.
Mr. Ellison. Okay. Let me move along to another question.
You know, U.S. Attorneys and I guess even States attorneys
will sometimes identify certain individuals as unindicted co-
conspirators. I think the general practice, at least in the
area I am from, is to not release that list of people to the
public because there is really no legal way to get yourself off
that designation, and yet it doesn't necessarily mean that you
are going to be indicted or anything like that.
My question is, there is a case in Dallas that has to do
with the HLF case, Holy Land Foundation, 300-some groups and
people on an unindicted co-conspirator list. They have been
subjected to public derision, and yet they are without any way
to, sort of, get off the list.
Can you speak about your views, not about that case, but
about in general whether it is appropriate for a U.S. Attorney
to publish a list of unindicted co-conspirators, what value to
justice it has?
Mr. Mukasey. U.S. Attorneys are required by law, any time
there is a conspiracy charge--and in almost every case
involving more than one person, obviously there is--to turn
over to the defense a list of unindicted co-conspirators.
Mr. Ellison. That is right.
Mr. Mukasey. That is largely because otherwise they can't
use those statements as statements in furtherance of the
conspiracy, unless they turn over the course. That is why they
do it.
Mr. Ellison. Of course.
Mr. Mukasey. And, generally, those lists are just as much
pleadings, in a way, as any other pleading in a case, and so
they become public.
Mr. Ellison. Well, you know what, thought? If my experience
didn't point me in another direction, I wouldn't debate the
point with you, but I happen to know and have been involved in
cases where unindicted co-conspirator lists were not made
generally available to the public, even if they were made
available to the defense.
And my question for you is--I guess here is my basic
question to you. What are your views on whether or not it is
legitimate to put people on a list that you never end up
calling?
I mean, we have the experience of the trial, in this case,
where you never end up calling these people as witnesses, you
never end up making a claim as to what statements they made
could or should have been the subject of a conspiracy, and
therefore make them unindicted coconspirators, and yet they are
subject to the public derision of being on such a list.
What are your views on that subject?
Mr. Mukasey. My experience has been that Assistant U.S.
Attorneys--and I did this when I was Assistant U.S. Attorney,
and I saw it done when I was a judge--take very great care in
compiling such a list.
Mr. Ellison. Well, what about when they don't? Shouldn't
there be a way for your office to say people can somehow be
exonerated or expunged off this list? Shouldn't there be some
sort of a process?
Mr. Mukasey. I think we ought to look into that, just as
people have raised with me the question of whether, when it is
announced that somebody is under investigation, shouldn't be
there be away of announcing that they are not? It is, kind of,
another version of the same problem. And I agree that it
deserves serious consideration.
But I understand the need for such lists, and my experience
is that they are drawn carefully and specifically with a view
toward assuring the admissibility of statements.
Mr. Ellison. Well, you probably would agree that sometimes
that careful practice is not always followed by everybody.
Mr. Mukasey. Look, everybody involved in the process is a
human being. That means mistakes get made.
Mr. Ellison. Right. And so there should be some way to
clean up those mistakes.
Mr. Mukasey. I think it bears serious consideration.
Mr. Ellison. I also want to ask, lastly, about watch lists.
What can we do? I have talked to so many people who just get,
you know, what I will call the hospitality when they go to
airports. These are people who have never done anything wrong,
who travel back and forth from other countries and throughout
the United States. But sometimes whenever they get to the
airport, they are the ones being searched, they are the ones
being stopped, they are the ones who are missing flights, they
are the ones being delayed.
And, you know, my question is, what are you doing to make
sure that you are not getting people stopped and hit on these
watch lists that really should not be on there? What is our
cleansing process for that?
Because I will acknowledge to you, there is a purpose for a
watch list. There are dangerous people out there. The people in
9/11, they got on a plane, and maybe it would be great if they
were on a watch list.
But I think we have gone overboard and we need a way to
clean up these lists. What are you doing about that?
Mr. Mukasey. I don't----
Mr. Ellison. First of all, do you think it is a problem?
Mr. Mukasey. I have seen reports about people being on
watch lists because they have names similar to other people who
probably belong on the watch list, being stopped at airports. I
know that the airport screening process is not perfect. I know
that from personal experience.
When I was a district judge and had marshals accompanying
me, despite the fact that they had guns with them and everybody
knew that I was a Federal judge, I got stopped and I was the
candidate for the kind of search you described. I don't know
how that happened, but it happens, and it happened more than
once.
That said, I think there ought to be a way of making
certain that the list is accurate. There are a lot of names on
the list. There are a lot of variations on names, so that there
are many fewer actual people on the list than there are names.
But I think you are right, that there ought to be a way of
assuring that people who don't belong on the list can get off.
Mr. Ellison. Well, because one thing, Mr. Attorney General,
is that we go through five people who are not supposed to be on
the list but are; we waste time and energy working them over.
Then it dilutes the impact of the people who we really do need
to be keeping an aye on.
Mr. Mukasey. Amen to that.
Mr. Ellison. So, I mean, I want to work with you to make
sure we deal with that.
Last question, if I may.
Mr. Gohmert. Regular order, Mr. Chairman. We are about 5
minutes over time.
Mr. Conyers. The gentleman's time has expired.
The Chair recognizes Trent Franks of Arizona, formerly the
Crime Ranking Member, now Ranking Member of Constitution, also
a Member of the Commercial and Administrative Law Committee.
Mr. Franks. Well, thank you, Mr. Chairman, very much.
And thank you, Attorney General Mukasey, for being here.
I know that you are tasked with one of the most important
jobs in any government, which is the administration of justice
and protecting the innocent in our society. And it is a
profound responsibility.
And I would suggest to you it is my own opinion that those
who were predecessors to you in the Justice Department were
faced with probably one of the biggest challenges that we have
faced in the last century, which is the coincidence of jihadist
terrorism and nuclear proliferation. And it is a very sobering
job, indeed.
And it occurs to me that the evidence that I have seen
indicates that, most of the time, that they simply seem to be
trying to do everything they could to protect the American
people within the constraints of the Constitution and the law.
And so I am always a little disheartened that our Committee
seems to be focused more on trying to paint some of those
individuals with recriminations rather than doing what we can
to improve our system so that 9/11 and those types of things
don't happen again.
With that in mind, I agree with you that Congress should
step up to its responsibilities related to the procedures in
habeas corpus cases. Sometimes we leave these decisions to
unelected judges to somehow balance those procedures with our
national security. But, after all, Congress provides for normal
habeas cases, you know, these procedures; we do that all the
time.
And I am wondering why we should abdicate our response to
act in these unusual habeas corpus cases, when these pose such
a serious threat to our national security?
Mr. Mukasey. Well, it was the point of my speech the other
day that Congress, working with the executive, is ideally
suited to fill in the gaps that were purposely left by the
Supreme Court, because it has available to it the kind of
knowledge that is needed.
It is not that judges are incapable of deciding cases. They
are perfectly capable of deciding cases. It is simply that they
don't have access. They can't find facts on their own. Only in
very limited circumstances can they acquire the expertise. By
and large, they rely on the facts and on the evidence and on
the expertise presented to them by the parties, which at times
is imperfect. And it is kind of a helter-skelter way of
deciding an issue. It is inevitable that, even in the best of
circumstances, some of them will come to different conclusions.
As a result, different procedures will be followed, and the
matter will engender just endless litigation.
Rather than having that, I think the orderly and
appropriate way is for Congress, working with the executive, to
literally put their heads together, and that is a lot of heads
with a lot of knowledge, expert knowledge and classified
knowledge, so as to come up with ways to solve these problems
so that we have a rational system and we don't get endless
delay and, possibly, conflicting decisions with, possibly, some
very serious and unpleasant results.
Mr. Franks. Well, of course, I agree with you.
General, the Fourth Circuit recently upheld the premise
that the United States could detain as an enemy combatant al-
Marri, and this is some who Osama bin Laden sent into the
United States just 1 day before September 11th.
But I am concerned, of course, that there were dissenting
judges that would have concluded we are not at war with al
Qaeda and that this was just a law enforcement matter. And,
unfortunately, it occurs to me it sound like the old mindset in
our country, which, in my mind, should have been put to rest
after September 11th.
Are you concerned that some of our judges or legislators or
people in general, that we are starting to forget the
significance and the grave nature of the struggle that we face?
Mr. Mukasey. Well, I am not going to single out any people
or group of people as more or less mindful of the danger.
I will point out that, as September 11, 2001, recedes into
the past, there are some people who have come to think of it as
kind of a singular event and of there being nothing else out
there. In a way, we are the victims of our own success, our own
success being that another attack has been prevented.
There was a newspaper, which I will not name, that, on a
recent anniversary of September 11, 2001, said something to the
effect that it still creates problems in people's minds to
think about September 11, 2001, as if that were a remarkable
fact. It is not at all a remarkable fact. And that was not a
singular event, in the sense that the danger has ended. It
hasn't. I get reminded of it every morning.
Mr. Franks. Yeah. Well, tell me, what can we do to ensure
that the Congress and the American people and the courts don't
forget the seriousness of the struggle that we are in?
And if you could name any one thing that we could do in
this Congress to assist the Justice Department in helping to
protect this country and its people, what would that be?
Mr. Mukasey. That would be to pass the kind of legislation
that I have proposed.
And as far as not letting people forget that, that is
always kind of a difficult thing. You don't want people to run
around scared. You want people to live their lives. That is
what everybody was told after September 11th. But you still
don't want people to forget that there are a lot of folks out
there whose list of things to do includes pretty much killing
Americans.
Mr. Franks. Yes, sir. Well, thank you for your noble
service, General.
And thank you, Mr. Chairman.
Mr. Conyers. Thank you very much.
Ms. Jackson Lee. Mr. Chairman?
Mr. Conyers. Thank you, Attorney General Mukasey, for your
testimony today.
I would like to yield to the gentlelady from Texas for any
materials that she would like to introduce into the record.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
Thank you, Attorney General Mukasey.
A Houston Chronicle article dated July 18, 2008, that
recounts, again, the incidents in the Harris County jail. I ask
unanimous consent.
I ask unanimous consent for a letter that asks for a full
investigation on the FBI watch list regarding CNN reporter Drew
Griffin. And I believe it mentions Congressman John Lewis, but
I will add him to the letter. I ask unanimous consent.
I ask unanimous consent for a series of questions for this
hearing dated 7/23/08 regarding the new guidelines on ethnic
and racial criteria for FBI surveillance.
I ask unanimous consent, Mr. Chairman, to include these
items in the record, and ask for a response on the full
investigation on the FBI watch list.
Mr. Conyers. Without objection, the documents that have
been introduced will be included in the record.
We would like all Members to have 5 days to submit
additional questions that may not have been raised.
We appreciate the interest and the concern of the Attorney
General and Department of Justice. We have a lot of work to do.
There are still a number of hearings scheduled before the
Committee that involve parts of DOJ.
Did you want to make any comment before we leave?
Mr. Gohmert. No.
Mr. Conyers. Thank you, Judge Gohmert.
The Committee is adjourned.
[Whereupon, at 2:48 p.m., the Committee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary
Prepared Statement and Questions of the Honorable Maxine Waters, a
Representative in Congress from the State of California, and Member,
Committee on the Judiciary
Letters to the Honorable Michael B. Mukasey, Attorney General of the
United States, U.S. Department of Justice, from the Honorable John
Conyers, Jr., a Representative in Congress from the State of Michigan,
and Chairman, Committee on the Judiciary
Letter to the Honorable Michael B. Mukasey, Attorney General of the
United States, U.S. Department of Justice, from the Honorable Sheila
Jackson Lee, a Representative in Congress from the State of Texas, and
Member, Committee on the Judiciary
Post-Hearing Questions* posed by the Honorable Maxine Waters, a
Representative in Congress from the State of California, and Member,
Committee on the Judiciary; and the Honorable Lamar Smith, a
Representative in Congress from the State of Texas, and Ranking Member,
Committee on the Judiciary
---------------------------------------------------------------------------
*Note: The Committee had not received a response to these questions
by the time of the printing of this hearing.