[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
DEPARTMENT OF JUSTICE
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 7, 2008
__________
Serial No. 110-119
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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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
C O N T E N T S
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FEBRUARY 7, 2008
Page
OPENING STATEMENTS
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Chairman, Committee on the
Judiciary...................................................... 1
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Member, Committee on
the Judiciary.................................................. 2
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Ranking Member, Committee on the Judiciary. 3
WITNESS
The Honorable Michael Mukasey, Attorney General, U.S. Department
of Justice
Oral Testimony................................................. 4
Prepared Statement............................................. 8
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary..................................... 83
Prepared Statement of the Honorable Darrell Issa, a
Representative in Congress from the State of California, and
Member, Committee on the Judiciary............................. 88
Prepared Statement of the Honorable Steve Cohen, a Representative
in Congress from the State of Tennessee, and Member, Committee
on the Judiciary............................................... 88
Letters dated February 7, 2008, from the Honorable Sheila Jackson
Lee to the Honorable Michael B. Mukasey, Attorney General of
the United States.............................................. 89
H.R. 4545, ``A bill to target cocaine kingpins and address
sentencing disparity between crack and powder cocaine''........ 94
Letter dated January 31, 2008, from the Honorable John Conyers,
Jr. to the Honorable Michael B. Mukasey, Attorney General of
the United States.............................................. 118
Post-Hearing Questions posed by the Honorable John Conyers, Jr.,
the Honorable Robert C. ``Bobby'' Scott, the Honorable Linda T.
Sanchez, the Honorable Keith Ellison, and the Honorable Robert
Goodlatte to the Honorable Michael B. Mukasey, Attorney General
of the United States........................................... 122
Letter dated June 2, 2008, from Keith B. Nelson, Principal Deputy
Assistant Attorney General, Office of Legislative Affairs, U.S.
Department of Justice, providing documents in response to post-
hearing questions posed by the Honorable Robert C. ``Bobby''
Scott.......................................................... 163
G(Due to its volume, the document production is not printed in
the hearing record but is on file with the House Committee on
the Judiciary)
Answers to Post-Hearing Questions provided by the U.S. Department
of Justice, dated July 16, 2008................................ 164
Answers to Post-Hearing Questions provided by the U.S. Department
of Justice, dated July 18, 2008................................ 196
DEPARTMENT OF JUSTICE
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THURSDAY, FEBRUARY 7, 2008
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 11:05 a.m., in
Room 2141, Rayburn House Office Building, the Honorable John
Conyers, Jr. (Chairman of the Committee) presiding.
Present: Representatives Conyers, Berman, Nadler, Scott,
Watt, Lofgren, Jackson Lee, Waters, Delahunt, Wexler, Sanchez,
Cohen, Johnson, Sutton, Weiner, Schiff, Davis, Ellison, Smith,
Sensenbrenner, Coble, Goodlatte, Chabot, Lungren, Cannon, Issa,
Forbes, King, Feeney, Gohmert, and Jordan.
Staff present: Sam Sokol, Majority Counsel; and Crystal
Jeziersky, Minority Counsel.
Mr. Conyers. Good morning.
The Committee will come to order.
I am pleased to welcome the Attorney General of the United
States, Mr. Michael Mukasey, who oversees what I consider to be
the most important agency in the Federal Government, with
jurisdiction over voting rights, civil rights, criminal and
civil justice, antitrust, intellectual property enforcement,
and bankruptcy, to name the major areas.
He assumes a very large responsibility, and I look forward
to a productive relationship between him and the Members of
this Committee.
At the outset, I note that the Attorney General did not
respond in advance to the five areas of questions I outlined in
my letter to him of last week, because we know how truncated
the 5-minute rule is, with all of our Members and him.
The 5-minute rule is always the more efficient mechanism
for disclosing information, while written questions submitted
after a hearing takes months to respond to. And so I hope that
we receive timely written responses to any questions that may
need further expansion on after the hearing.
I would like to emphasize the areas that I would point to
the Attorney General as very important to me.
I continue to be frustrated by the Administration's failure
to fully and frankly address our Nation's position on the
odious practice of waterboarding.
During confirmation proceedings, Mr. Mukasey was asked
about waterboarding and said he would examine the underlying
memos and underlying facts about what this country has done and
try to explain it to Congress. But after his confirmation he
has not stated whether waterboarding is torture or illegal,
saying there are some circumstances that current law would
appear to prohibit and other circumstances would present a far
closer question.
Just this week, we learned that the Central Intelligence
Agency agents have engaged in waterboarding, and that Federal
prosecutors appear to have known about the destruction of CIA
interrogation tapes for more than a year before taking any
action.
My question today is, will the Attorney General tell us,
today, here, whether he is willing to conduct a criminal
investigation into these confirmed incidents of waterboarding?
Now, no issue is more important to most of us on this
Committee than the voting rights and fair access to the ballot
box.
I have high hopes that the department and this Committee
can work together to ensure that the 2008 elections are as fair
and open--more so than any in our history.
We already have concerns about voting problems and
questionable tactics in the ongoing presidential primaries. And
I hope that the Attorney General will tell us and work with on
exactly what we all need to do together, his Committee--his
department, our Committee, Senate Judiciary Committee, to set
up the comprehensive working operation with the Voting Section
in his department, and staff, so that we can ensure that every
available resource is being deployed to protect the most valued
right in a democracy, to cast the vote and have it counted.
I yield a minute to Bobby Scott, Chairman of the Crime
Subcommittee. Then I will return to the Ranking Member, Mr.
Smith.
Mr. Scott. Thank you. Thank you, Mr. Chairman. And I thank
the Attorney General for being with us today.
And I want to express my appreciation for your willingness
to cooperate with us and attend this hearing.
I talked to you yesterday, and indicated that we had a
hearing recently about a young lady that was raped in Iraq that
needed to be investigated. We had a hearing on that, and the
Justice Department did not send a representative.
I understand that we are going to do better than that in
the future. We need to look into civil rights, religious
discrimination, to make sure that Federal contractors are not
able to discriminate based on religion and other civil rights
cases where--and we talked yesterday about a case in North
Carolina where a person was held, apparently, without with a
trial date for well over a year. We need to make sure that the
Justice Department actually looks into cases like that, and we
can count on you and the Department of Justice in looking into
cases like that to make sure that civil rights are not being
violated.
Human trafficking cases need to be prosecuted.
And, finally, crack/powder cocaine disparity--the
Sentencing Commission unanimously agreed that existing crack/
powder disparity was unjust, that it was racially
discriminatory.
And I just wanted to quote what a Republican-appointed
judge, who indicated that, ``We need to have faith in the
American judicial system to do all that we can do to ensure
that violent offenders are not released early and to address
fundamental injustices in the criminal justice process.''
Judges--he mentions, ``Judges can be responsible in exercising
their discretion to make sure that the wrong people are not
released.''
Over the next 7 to 10 years, 20,000 people will be released
under this adjustment. Six hundred thousand people are released
from jails and prisons every year.
Mr. Conyers. The gentleman's time has expired.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Conyers. I am pleased now to turn to our Ranking
Member, Lamar Smith of Texas, for his opening statement.
Mr. Smith. Thank you, Mr. Chairman.
General Mukasey, first of all, congratulations to you on
your confirmation. And, also, welcome to your first appearance
before the House Judiciary Committee.
Last year was a difficult year for the Department of
Justice. It was a year during which the department and its
dedicated employees were shrouded by the controversy created
after the resignation of several U.S. attorneys.
Responding to the U.S. attorneys resignations, the
Committee conducted vigorous oversight, holding 15 hearings,
interviewing 20 Administration officials, and reviewing 8,500
pages of documents.
Yet, at the end of the review, all we found was that the
Administration officials had already admitted poor management
of a legal process.
The Committee last year spent more time on White House
personnel investigations than on national security, violent
crime and sexual predators combined.
Preventing another terrorist attack is the most critical
work facing the department today. Just this week, the director
of national intelligence, Admiral Michael McConnell, warned
that Al Qaida is increasing its preparations for an attack on
the United States. Terrorists planned an attack on the White
House as recently as 2006.
The Foreign Intelligence Surveillance Act, FISA, is
critical to our ability to prevent terrorist attacks on our
Nation. Today the Senate continues its consideration of
legislation to modernize FISA. This bipartisan bill, negotiated
with the Administration, updates our intelligence laws to
mirror today's technologies and provides liability protection
to the telecommunication companies.
The Protect America Act expires next week. The Senate must
pass a strong bipartisan bill. And when they do, the House must
act quickly to pass the bill and send it to the President.
This is not the time for partisanship. This is the time for
responsible action.
Additionally, I look forward to hearing from you on the
progress of the National Security Division, created by the
Patriot Act reauthorization to streamline the department's
counterterrorism work.
The Justice Department also plays an important role in
protecting the American economy. Counterfeiting and piracy of
intellectual property cost American jobs, reduces American
prosperity, and threatens the existence of American companies.
I look forward to hearing from you regarding your efforts in
this area as well.
As we enter a presidential election year, we are reminded
of the department's role in enforcing Federal election laws. We
must maintain the integrity of our election process by ensuring
that all qualified citizens are eligible to vote and that these
votes counted--are counted fairly and honestly.
We must also ensure that individuals who are not eligible
to vote do not exploit this essential freedom.
I realize that enforcing election laws opens the department
up to criticism from those who would claim voter intimidation.
But our right to vote is meaningless unless it is legal and
protected.
The department must vigorously preserve the integrity of
the election process by enforcing the election laws Congress
has enacted.
I am also very concerned by the March 3 deadline you
mention in your statement. If Congress does not act now, 1,600
convicted crack cocaine dealers will be eligible for immediate
release into our communities nationwide. Many of these
criminals are dangerous repeat offenders who possessed firearms
during the commission of their crimes.
The early release of these individuals poses a significant
threat to Americans' neighborhoods. And that is why last
December I, along with eight of my Republican colleagues on
this Committee, introduced legislation to amend the Federal
sentencing guidelines. A strong Justice Department is in the
best interest of the American people. The Committee must
refocus its efforts to help the brave men and women of the
Justice Department to better enforce the law, protect America
from future attacks, fight crime, and ensure justice for all.
General Mukasey, I look forward to hearing from you
regarding the state of the department, and to working with you
to ensure that the department functions at the highest level
possible.
And again, thank you for being here today.
Mr. Conyers. Thank you, Lamar Smith.
Attorney General Mukasey brings a long, distinguished
background to the Department of Justice: a Yale Law School
graduate, a longtime practicing attorney, a Federal prosecutor,
and then a member of the firm of Patterson, Belknap, Webb and
Tyler.
In 1988, he was appointed a trial judge in the Manhattan
Federal court by President Reagan, and served in that post for
18 years, including 6 of which he was the chief judge of the
district.
On his retirement, he returned the practice, only to be
called back to public service and was nominated by President
Bush and confirmed by the United States as Attorney General in
the fall of 2007.
On behalf of the entire Committee, we welcome you to our
hearing and encourage you to respond to as much of the
questions that have been put to you already as you can.
TESTIMONY OF THE HONORABLE MICHAEL MUKASEY, ATTORNEY GENERAL,
U.S. DEPARTMENT OF JUSTICE
Mr. Mukasey. Thank you, Mr. Chairman.
Chairman Conyers, Ranking Member Smith and Members of the
Committee, thank you for the opportunity to testify about the
important work being carried out by the men and women of the
Department of Justice and for permitting me to highlight the
key challenges that lie ahead.
In the short time that I have been at the department, I
have confirmed what I hoped and expected to find: men and women
who are talented, committed, and dedicated to fulfilling its
historic mission.
That mission is to advance justice by defending the
interests of the United States according to the law; to protect
Americans against foreign and domestic threats; to seek just
punishment for those who violate our laws; to assist our state
and local partners in combating violent crime and other
challenges; and to ensure the fair and impartial administration
of justice by protecting the civil rights and liberties that
are the birthright of all Americans.
These values are central to the mission of the department,
and defining features of our democracy. And I thank the
Committee for its efforts to help realize them.
During my tenure, I have sought opportunities to work with
Congress to ensure that the department is provided the
statutory tools necessary to fulfill the department's crucial
mandate.
I have also sought to keep Congress apprised of the
department's activities and policy positions, where possible,
and to respond to the Committee's oversight requests in a
spirit of inter-branch comity that respects the institutional
interests of the department and the Congress.
I pledge to maintain this commitment throughout my tenure
as Attorney General of the United States.
I would like to focus on two crucial legislative issues
pending before Congress: the pending expiration of the Protect
America Act and the pending effective date of the United States
Sentencing Commission's decision to make a wide range of
violent drug offenders eligible for a retroactive reduction of
their sentence. I hope to work with Members of this Committee
to address each of these problems.
As this Committee is aware, the Protect America Act will
soon sunset, but threats to our national security will not
expire with it. The statements and orders of Al Qaida and
related organizations do not come with a sunset provision.
I urge Congress to pass long-term legislation to update the
Foreign Intelligence Surveillance Act, known as FISA, to ensure
that this statute addresses present and emerging threats to our
national security.
S. 2248, the FISA Amendments Act of 2008, includes tools
contained in the Protect America Act that have allowed us to
close critical intelligence gaps.
In addition, this legislation protects telecommunications
companies now under legal assault because they are believed to
have responded to the government's call for assistance in the
aftermath of September 11.
The Protect America Act is set to expire in just days and
it is vital that Congress enact long-term FISA modernization
legislation, with retroactive immunity, before that Act
expires.
S. 2248, which is a strong, bipartisan bill, reported out
of the Senate Select Committee on Intelligence by a 13-2
margin, is a balanced bill that includes many sound provisions
that would allow our intelligence community to continue
obtaining the information it needs to protect the security of
America while protecting the civil liberties of Americans.
Modernization of FISA is a critical part of this effort.
The department will have grave concern about any legislative
proposal that ignores the continuing nature of the terrorist
threat, that denies the intelligence community and law
enforcement the long-term statutory tools necessary to defend
the United States.
The department respects the oversight authority of
Congress. But sunset provisions create uncertainty in the
intelligence community and stifle the development of stable
partnerships necessary to detect, deter and disrupt threats to
our national security.
It is also critical that Congress provide liability
protection to electronic communication service providers in
enacting a reauthorization bill.
Contrary to the assertions of some, the legal protections
contained in the S. 2248 bill do not confer blanket immunity.
Rather, protections apply in limited and appropriate
circumstances as reviewed by a court.
We believe this approach represents the best way to provide
retroactive immunity against these claims, and urge Congress to
pass legislation containing these protections.
While we appreciate the work of the House of
Representatives in holding hearings and considering the
challenges posed by the outdated provisions of FISA, the bill
passed by the House, H.R. 3773, falls far short of providing
the intelligence community with the tools it needs to collect
foreign intelligence effectively from individuals located
outside the United States.
We cannot support this bill, which does not provide
liability protection, would sunset in less than 2 years,
requires private court--prior court approval of acquisitions
targeting persons outside the United States except in
emergencies, and limits the type of foreign intelligence
information that may be collected.
I would now like to focus on an issue that will have an
impact on community safety nationwide: the Sentencing
Commission's decision to apply retroactively, effective March
3, 2008, a newer and lower guideline sentencing range for crack
cocaine trafficking offenses.
Unless Congress acts by the March 3 deadline, nearly 1,600
convicted crack dealers, many of them violent gang members,
will be eligible for immediate release into communities
nationwide. Retroactive application of these new lower
guidelines will pose significant public safety risks.
Many of these offenders are among the most serious and
violent offenders in the Federal system, and their early
release, without the benefit of appropriate reentry programs,
at a time when violent crime has increased in some communities,
will produce tragic but predictable results.
Moreover, retroactive application of these penalties will
be difficult for the legal system to administer, given the
large number of cases eligible for resentencing, now estimated
at upwards of 20,000, and uncertainties as to certain key legal
issues that remain unresolved.
I understand the commitment of Members of this Committee to
community safety and would appreciate the opportunity to work
with this Committee and this house to address the retroactivity
issue in an expedient manner, while beginning discussions on
changes to the current statutory differential between crack and
powder cocaine offenses.
Let me conclude with the following observation. While
differences between this Committee and the department are
inevitable and are consistent with the institutional tension
embodied in the Constitution, which is our founding document,
it is worthwhile to remember what unites us.
We each swear an oath to defend the Constitution of the
United States and to uphold the high ideals of public service
to which we are entrusted. We must not lose sight of the common
goals and common purpose that unify the Department of Justice
and Members of this Committee who support its historic and
ongoing mission.
I have submitted a more extensive statement for the hearing
record and would be pleased to answer any questions that you
might have.
Thank you very much.
[The prepared statement of Mr. Mukasey follows:]
Prepared Statement of the Honorable Michael B. Mukasey
Mr. Conyers. Thank you very much, Mr. Attorney General.
Let me ask you, have you any additional comments to make
about the issue of waterboarding now that the CIA director has
confirmed that that has, in effect, happened in--under our
government?
Mr. Mukasey. If you wish to address a question to that, I
am happy to answer a question. I could simply talk and then
risk not answering the question that you had in mind. So if you
wish to pose a particular question, fine. I am prepared to
answer particular questions relating to that.
Mr. Conyers. Well, are you ready to start a criminal
investigation into whether this confirmed use of waterboarding
by United States agents was illegal?
Mr. Mukasey. That is a direct question, and I will give a
direct answer.
No, I am not, for this reason: Whatever was done as part of
a CIA program at the time that it was done was the subject of a
Department of Justice opinion through the Office of Legal
Counsel and was found to be permissible under the law as it
existed then.
For me to use the occasion of the disclosure that that
technique was once part of the CIA program--an authorized part
of the CIA program, would be for me to tell anybody who relied,
justifiably, on a Justice Department opinion that not only may
they no longer rely on that Justice Department opinion, but
that they will now be subject to criminal investigation for
having done so.
That would put in question not only that opinion, but also
any other opinion from the Justice Department.
Essentially, it would tell people: ``You rely on a Justice
Department opinion as part of a program, then you will be
subject to criminal investigation when, as and if the tenure of
the person who wrote the opinion changes or, indeed, the
political winds change.'' And that is not something that I
think would be appropriate and it is not something I will do.
Mr. Conyers. Are you prepared to let us get a copy of the
Office of Legal Counsel opinion?
Mr. Mukasey. The Office of Legal Counsel opinion discusses
particular techniques that were part of what remains a
classified program.
We have, I believe, provided an unclassified discussion of
general legal principles--did it back in 2004. And we have
provided some classified briefings with regard to the legal
reasoning underlying opinions, and are prepared to continue to
do so.
But the opinions themselves can't simply be turned over
because they discuss not simply legal reasoning, but the
program itself, which remains classified.
Mr. Conyers. Well, every Member of this Committee is
cleared for top secret information.
Mr. Mukasey. The opinions themselves dealt with a program
that--to the extent the opinions themselves deal with a
current--opinions relating to a past program cannot simply be
disclosed in that fashion. They can be the subject of
briefings, and have been. We can't simply turn them over.
Mr. Conyers. Well, can we meet and find out what it is you
are basing the response to my question?
Mr. Mukasey. I think the question was whether I was going
to open a criminal investigation because it has now been
disclosed that waterboarding was part of the program.
And what I have said is that waterboarding, because it was
authorized to be part of the program, pursuant to approach--
that it was authorized to be part of the CIA program, cannot
possibly be the subject of a criminal--a Justice Department
investigation, because that would mean that the same department
that authorized the program would now consider prosecuting
somebody who followed that advice. That won't change whether
letters are disclosed or not disclosed.
Mr. Conyers. Well, what we are trying to do is make
ourselves conversant with the basis of the response that you
gave to my question. So there must be some way, between the
Department of Justice and the House Committee, that we can be
made more aware--we have requested this document before--of the
document on which you base your response.
Mr. Mukasey. The response about a criminal investigation
doesn't really depend on the particular content of the
document. It depends on there having been an opinion that
defined and authorized the limits of a particular program that
is now disclosed included waterboarding at that time. It is no
longer part of the program; that has also been disclosed, but
that doesn't change the contents of the letter.
That said, I am sure that we can talk about possible
additional discussion of what is in the letters between the
department and Members of this Committee. My understanding is
there had been ongoing discussion with Members of various
Committees, including particularly the Intelligence Committees,
but I was not aware--there may well very well have been
discussions with Members of the Committee. I am not certain as
I sit here.
Mr. Conyers. Well, we will pretend that we have never asked
for this before, and we will start right now.
Thank you very much.
We have a call for votes. The Committee will stand in
recess until this one--four votes are dispensed with.
[Recess.]
Mr. Conyers. The Committee will come to order.
And the Chair recognizes its Ranking Member, Lamar Smith.
Mr. Smith. Thank you, Mr. Chairman.
General Mukasey, I would like to try to cover three
subjects, if we could; interrogation techniques, FISA and, if
we have time, intellectual property rights enforcement.
In regard to interrogation techniques--and I know you are
going to be asked a lot of questions about that today--I just
want to express the personal opinion that I hope the
Administration will not be defensive about using some
admittedly harsh but nonlethal interrogation techniques, even
techniques that might lead someone to believe they are being
drowned even if they are not.
My guess is that 99 percent of the American people, if
asked whether they would endorse such interrogation techniques
to be conducted on a known terrorist with the expectation that
information that might be derived from such interrogation would
save the lives of thousands of Americans, that 99 percent of
the American people would support such interrogation
techniques.
And I just can't imagine that we would consider not using
them, if they, in fact, were going to lead to the saving of
thousands of American lives.
Now, that is not a question, it is a statement. But I would
welcome any comment on it that you might have.
Mr. Mukasey. I will thank you for the comment.
I will say, as I said to the Chairman, if there is a
particular question you want to pose, I will be happy to answer
it. I thought the comment may very well not answer the question
you have in mind.
Mr. Smith. Okay.
Would you agree with me that 99 percent of the American
people would probably endorse such techniques if they could be
shown to save thousands of American lives and, again, to be
conducted only on a known terrorist with the high expectation
that such information could protect the American people?
Mr. Mukasey. Regrettably, unlike the--unlike the question
posed by the Chairman, I can't sit here and say what I think 99
percent of people would do. I have, kind of, an instinct, but--
--
Mr. Smith. I can, but you cannot. I understand that.
General Mukasey, let me read a sentence from a New York
Times editorial that appeared January 31 and ask you to respond
to some of the assertions that were made in this particular
editorial.
This is the sentence; ``Mr. Mukasey also pushed Congress to
give immunity to telecommunications companies for any illegal
acts they committed by helping the Administration carry out----
''
Mr. Mukasey. I am sorry, ``for any illegal acts they
committed''?
Mr. Smith. That is correct--``while helping the
Administration carry out its outlaw domestic spying program.''
Kind of an amazing assertion.
But the question is this: Are you pushing, have you pushed
Congress to give immunity to telecommunications companies for
any illegal acts they committed?
Mr. Mukasey. No.
Mr. Smith. Do you know of any aspect of the domestic spying
program that is illegal as is asserted in this editorial?
Mr. Mukasey. No, I do not.
Mr. Smith. Okay. Thank you.
To go on about FISA, as you know, several bills have been
introduced to reauthorize the Foreign Intelligence Surveillance
Act. One bill is called the Restore Act. Do you have any
concerns about the Restore Act? And if so, what are those
concerns?
Mr. Mukasey. I have concerns about the Restore Act that I
tried to cover to a certain extent in my opening statement,
which include that it does not include immunity for telecoms
who participated on the assurance that what they were doing was
necessary and lawful, which poses tremendous dangers for the
future, as I outlined.
It does not permit us to gather intelligence in categories
that we are permitted and should be permitted to gather.
It has a sunset provision that would stifle the investment
of effort both the investment by--in personnel and the
investment in material in an ongoing program.
For all of those reasons, we have problems with it.
Mr. Smith. Okay. Understand. Appreciate that.
General Mukasey, last question has to do with intellectual
property rights enforcement.
As you know, the department has assigned a prosecutor in
each of the Federal judicial districts to enforce intellectual
property rights. It looks like there has been very uneven
enforcement: Over half of the judicial districts in the United
States, in fact, have only brought zero or one action against
violators or those who have violated our intellectual property
rights.
Is there any more that the department can do to try to
enforce the intellectual property rights?
Mr. Mukasey. There is always more that the department can
do. And enforcement of intellectual property rights engages not
only property rights themselves, but also matters relating to
the security of the country insofar as those rights involve
technical processes and procedures that we rely on for
communications.
Mr. Smith. Any reason half the districts in the United
States would not be showing particular activity when it comes
to prosecuting those kinds of violations?
Mr. Mukasey. Not that I can think of offhand.
When I was a district judge, we had all manner of
intellectual property cases, ranging from knock-offs of popular
products to----
Mr. Smith. In those districts that are not active, perhaps
you can enforce them to be more active.
Mr. Mukasey. Perhaps we can make them aware of the need to
be active and to go out and make cases. And I appreciate----
Mr. Smith. Thank you, General Mukasey.
Thank you, Mr. Chairman.
Mr. Conyers. You are welcome.
The Chair recognizes the Chairman of the Intellectual
Property Subcommittee, Howard Berman of California.
Mr. Berman. Thank you, Mr. Chairman.
And welcome, General Mukasey.
The Ranking Member's question to you left something
hanging, which I just wanted to clarify. I think the answer is
pretty clear.
Wouldn't you say that it is true that there are ``harsh
interrogation techniques'' that are not lethal which are still
illegal because they fit within the definition of torture? A
technique does not have to be lethal to be torture.
Mr. Mukasey. I think that is fair to say, as a general
matter, because the torture statute is phrased in general
terms.
Mr. Berman. And when that is so, whether 99 percent of the
American people have an opinion about that particular technique
is somewhat irrelevant to the issue of whether that conduct
should be permitted.
Mr. Mukasey. I think it is fair to say that the law doesn't
turn on what any percentage of people think is included within
it or not within it, it is what it includes or doesn't
include----
Mr. Berman. That is right.
Mr. Mukasey [continuing]. On a reasonable reading. I am
with you on that.
Mr. Berman. I would like to go to another subject.
You have stated, I believe several times, both in your
confirmation process and since, of your desire for cooperation
between the Justice Department and the Congress.
My question is, does that cooperation apply to jointly
developing mutually agreeable procedures to govern any future
search warrants executed on congressional offices in such a way
as to protect legitimate law enforcement needs, while also
respecting the speech or debate clause of the Constitution and
the separation of powers?
Mr. Mukasey. I think I can say it emphatically includes
that. Because I believe there are ongoing discussions to
resolve precisely that. There is a case that was brought, as
you know. We petitioned for cert, I believe. We would much
prefer to resolve that case in the way that most disputes with
respect to privilege and other matters are resolved between
Congress and the Justice Department, namely by conversation and
accommodation.
And, as I understand it, that is actively under way.
Mr. Berman. You are right, I believe and--that this is part
of a recent meeting between the House Office of General Counsel
and the Justice Department.
I guess, are you saying that the Justice Department is
actively engaged and committed to working to develop such a
mutually agreeable process?
Mr. Mukasey. Both of those.
And I deeply hope that it comes out that way, rather than
in some bright-line ruling that one of us can't live with or
would find it awkward to live with.
Mr. Berman. Great.
And then, finally, if there is such an agreement, would you
support setting forth that agreement in a memorandum of
understanding or legislation or in some other fashion?
Mr. Mukasey. I think precisely how that--what the terms of
the agreement are will govern, to a certain extent, how it is
to be set forth.
I am, at this point, more concerned that we reach
agreement. Once we reach agreement, I think we can figure out
precisely how to set it forth, whether it has to be in a
memorandum of understanding or in some other fashion.
But I certainly favor the success of the conversations that
I understand to be now ongoing.
Mr. Berman. Well, thank you. I think you have covered that
subject. And I appreciate your responses.
Since my time isn't quite out, let me go back to the--just
the questions of Chairman Conyers and you.
I understand the notion of conduct done pursuant to a
Justice Department authorization. I am curious about whether
you think that the analysis that went behind that authorization
was correct.
Mr. Mukasey. If we are talking about the authorization with
respect to waterboarding, what I undertook to review was the
current program. The current program, as I disclosed, does not
include waterboarding.
Were waterboarding to be brought back into the program,
what would have to happen is that would have to come initially
from the Director of the Central Intelligence Agency and, I
believe, the Director of National Intelligence to the Justice
Department. And I would have to analyze that question not only
pursuant to the law that existed at the time of the prior
opinion, but also with regard to the laws that have been passed
since, which have changed the landscape, I think it is fair to
say, rather substantially.
Mr. Berman. So it is sort of an internal case or
controversy test?
Mr. Mukasey. Sort of. Yes.
Mr. Berman. Okay.
Mr. Mukasey. Based on the concrete facts that would be
presented to us at the time.
Mr. Berman. Thank you.
Thank you, Mr. Chairman.
Mr. Conyers. The Chair recognizes the Chairman emeritus of
the Committee, Jim Sensenbrenner.
Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
I want to get back to the issue of severe interrogation
practices.
And at the September 26 Democratic presidential debate, the
moderator, Tim Russert, posed the following question: ``Imagine
the following scenario. We get lucky. We get number three guy
in Al Qaida. We know there is a big bomb going off in America
in 3 days and we know this guy knows where it is. Don't we have
the right and responsibility to beat it out of him?''
Barack Obama responded by saying: ``There are going to be
all sorts of hypotheticals in emergency situations, and I will
make that judgment at the time.''
Now, I hate to put you in a position of choosing between
our distinguished Chairman and Senator Obama, but do you agree
with Senator Obama that if he became President he should be
able to make that judgment at that time, or do you disagree
with him and think that Congress should make that decision
right now for all time?
Mr. Mukasey. The only thing I can say is the way in which
techniques could be authorized.
If ``beating it out of him'' is part of the program, then
it could be done. I am not saying that it is or that it isn't.
If it is not part of the program, the only way it becomes
part of the program is if it comes from the CIA Director and
the Director of National Intelligence, to me, to the President,
and a ruling that it does not violate any statutes.
Mr. Sensenbrenner. I guess what I am saying is, is
apparently Senator Obama's answer implies that he is defending
presidential powers against being hamstrung by an inflexible
law passed by Congress. And, you know, that appears to be the
thrust of Senator Obama's answer, is that he said if he became
President he doesn't want to have handcuffs put on him.
Mr. Mukasey. If Congress passes a statute that treats a
particular subject that Congress can and it becomes law, then
that is the law, and the President will be bound to obey it.
As a practical matter, to entertain the view that the
President could then order somebody to act outside it I think
is not a practical view.
Mr. Sensenbrenner. Okay.
I also want to talk about one of the other urgent iteMs.
And that is the retroactive reduction in the sentencing
guidelines for crack dealers.
Does the Justice Department have any statistics about the
1,600 that would be immediately released, what communities they
were dealing crack in prior to their arrest and conviction?
Mr. Mukasey. I believe we can--although I haven't in front
of me and I certainly haven't committed to memory the precise
communities in which they would be located, I believe we can
make distinctions based on their criminal histories, which
would give some clue; based on whether any of them got a two-
point uptick in the offense level, which would indicate the
presence of a gun; and whether any of them got--had any prior
history of gun convictions, regardless of their criminal
history.
It is my understanding that if all of those factors are
included--that is, a criminal history category of two or above,
a possible uptick of two for the presence of the gun or a prior
gun conviction--any of those, that that would exclude from
consideration for retroactive application something like, I
think, 60 or 70 percent of the 1,600.
I believe that we have statistics to show that.
Mr. Sensenbrenner. Yes.
You know, my gut reaction is that, if these people are
released from prison, it will go right back into the
communities where they were trafficking crack, and perhaps go
right back into business, or definitely be involved in other
criminal activity, particularly when being in possession of a
firearm, which, of course, is a felony in and of itself.
Mr. Mukasey. And an additional problem is they would go
back rapidly, without the pre-release programs that we have to
try to reintroduce people into the community in a way that
mitigates the possibility that they might become recidivists.
Mr. Sensenbrenner. Thank you.
Mr. Conyers. The Chairman of the Constitution Subcommittee,
Jerry Nadler of New York?
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Attorney General, I was interested to hear you say a
moment ago that if the President ordered someone to do
something against the clear intent of Congress, that is outside
the law.
The FISA act said a person is guilty of an offense if he
intentionally, one, engages in electronic surveillance under
the color of law, except as authorized by statute.
Now, the President admitted that he did that. Every 45 days
he signed an authorization to direct the surveillance of people
in the United States without a warrant, as required by the FISA
act.
Now, I had previously asked your predecessor, Attorney
General Gonzales, given this apparent prima facie case that the
President and people under him, including the prior Attorney
General, engaged in felonious conduct by doing so, that he
appoint a special counsel to investigate the warrantless
surveillance of Americans.
And I recently reiterated that request to you.
Now in your testimony before the Senate last week, you
responded to Senator Leahy's questions on whether the President
violated the law by authorizing wireless surveillance by
stating that you ``don't know whether the President acted in
violation of statutes,'' including FISA.
I believe we need to know the answer: Did the President,
with, as has been reported, the advice of the Justice
Department, break the law?
I believe the answer is clear that he did.
Given the extraordinary circumstances involved, allegations
of criminal conduct by the President and other high-ranking
officials and the possibility of conflict at the Justice
Department, will you now agree to appoint outside special
counsel so that we finally will get an answer to this question?
Mr. Mukasey. The direct answer to your question is no, I
will not.
Mr. Nadler. Because?
Mr. Mukasey. Beg pardon?
Mr. Nadler. Because?
Mr. Mukasey. Because there is one detail that was omitted,
and it may very well have been my fault in saying I didn't know
when I had forgotten or overlooked.
There was in place an order--I am sorry, an opinion of the
Justice Department describing the legal basis for the program
to which you refer. That included the authorization of the use
of military force, as a congressional statute on which it was
relied that that behavior was legal.
I understand that there are views on both sides of that--
strong ones.
Mr. Nadler. Well, there are views--let us put it this way:
The Supreme Court in the Hamdan case, in a case just about
directly on point, ruled that--for reasons I am not going to
get into now, we don't have time in 5 minutes--that the use of
the two excuses by the Justice Department, namely the
President's inherent powers under Article II and the
authorization for the use of military force as justification,
was not, in fact, justification. The President is still bound
by the law. The law was not repealed by implication by the AUMF
and that that is not sufficient.
Now, the Justice Department, in a letter to congressman--to
congressman, excuse me--to Senator Schumer recited these
letters as a refutation by a host of constitutional scholars
against that.
My second question, then, when this is--on behalf of the
Justice Department, in effect representing the President,
although a step removed, you say that this is justified, that
it is not illegal, for the reasons stated.
Lots of other people say it is clearly illegal.
Normally, we would have that settled in a court. A court
would decided whether something is legal or not when there is a
dispute.
But when you attempt to get this into court--you can't get
it into court by prosecution, because you are not going to
prosecute or appoint the special counsel. But when you attempt
to get it into court by victims or alleged victims, plaintiffs
suing in civil court, then the government comes out and says,
``Oh, you can't get into court alleging violation of your
rights through violation of FISA because of the state secrets
privilege.''
So now you have set up a situation where the President and
the Attorney General assert the President's right to do
something which seems to a lot of people to a lot of people to
be a violation of law and there is no way of checking that.
In other words, there is no way of getting--well, let me
ask you a different question. Under this, is there any way--and
would you agree that the state secrets privilege has to yield,
because otherwise there is no way for Congress or the courts or
anybody to have any check on the President's claimed power?
Mr. Mukasey. The state secrets privilege--just to answer
the last question first--the state secrets privilege is invoked
by the government and backup is provided for its invocation.
To my knowledge, that backup has been sustained----
Mr. Nadler. Well, the state secrets privilege has often
been used where there is no backup provided, simply an
affidavit.
Would you agree that where the state asserts state
privilege--state secrets, that the court ought to be provided
with information in order to rule on the validity of the state
secrets privilege?
Mr. Mukasey. The court can be provided with and is provided
with information relating to the invocation of the state
secrets privilege and an explanation of the basis for it, and
to rule on that basis.
Mr. Nadler. But the court often rules with--simply on an
affidavit without seeing the documents to judge for itself
whether they deserve--whether they would threaten national
security were they revealed.
Would you agree that the court ought to see that and make
that decision?
Mr. Mukasey. I believe that courts see affidavits in some
cases, affidavits and documents in others, and have what they
consider to be an ample basis because they rule on that basis
for a ruling. Sometimes things are quite clear.
Mr. Nadler. And sometimes they are not.
Mr. Mukasey. And sometimes they are not.
Mr. Nadler. And, lastly, we have heard hearings in this
Committee on rendition--on so-called extraordinary rendition.
On the Maher Arar case we are going to hold further hearings.
Would you--and we have been told that we got assurances
from Syria that Mr. Arar would not be tortured when he was sent
there, which of course proved not to be true.
Would you commit or agree that upon request, which will be
forthcoming, that you will send someone from the department for
a hearing here to answer the questions, ``Who obtained these
assurances? From whom were they obtained? What assurances were
given?'' so that we can begin to get to the bottom of this
rather horrendous case?
Mr. Mukasey. It is my understanding that some of this has
been the subject of classified briefings to various Members of
this Committee and other Committees.
It is also my understanding--and this is based on an
exchange of notes between us and Canada that became public, not
because of anything that anybody wanted to do voluntarily--that
Mr. Arar is still on the no-fly list.
Mr. Nadler. Yes, he is; improperly so, in my opinion.
Mr. Mukasey. Beg pardon?
Mr. Nadler. I have seen----
Mr. Conyers. The gentleman's time may have expired.
Mr. Nadler. Let me just say, I have seen the confidential
documents. He shouldn't be on the no-fly list. But we have not
heard about the assurances from Syria, even on a classified
basis. We need to know that.
I thank you, Mr. Chairman.
Mr. Conyers. Thank you.
Howard Coble, Ranking Member, of North Carolina.
Mr. Coble. Thank you, Mr. Chairman.
General, good to have you on the Hill today.
I want to associate myself with comments made by the
distinguished Ranking Member regarding intellectual property
crimes in which he noted that more than half of the judicial
districts in the country have shown little or no interest in
prosecuting these.
General, it is my belief that these intellectual property
crimes should hold a national priority. Do you all at the
Justice Department share that view with me?
Mr. Mukasey. We do, and we practice it. We approach on a
national basis the need to protect intellectual property, which
is the foundation of this economy and also goes directly to
national security concerns.
Mr. Coble. I am glad to hear that, because I concur with
you.
Subprime mortgage questions: It has been reported that the
FBI is in the process of investigating 14 companies involved in
either mortgage lending to borrowers with weak or questionable
credit or the marketing of securities backed by those loans.
Considering the magnitude of this crisis--and I think it is
a crisis--and the breadth of these allegations, would any
resulting prosecutions be a priority for the Justice
Department?
Mr. Mukasey. I can't comment on what the FBI may or may not
be investigating.
But I recognize the degree to which the subprime debacle
has affected the economy. And therefore, if crimes are
disclosed, they would certainly be a priority.
Mr. Coble. Well, let me put an alternative question to you,
General.
Do you feel that prosecuting illegal predatory lending is
an effective method of addressing the subprime mortgage crisis,
as opposed to other proposals that would perhaps lend the
bankruptcy code to, on the one hand, help consumers, but do
little to stop the potentially illegal lending practices?
Mr. Mukasey. I can't comment on a comparison between the
two.
But I know that, generally, prosecuting cases where you
have an informed audience of other people who may be similarly
situated to the defendant can be a very effective way of
preventing further violations. And that is an informed
audience.
Mr. Coble. Retain your prosecutorial hat, and let me put
this question to you, General.
What are you all at Justice doing to maximize the combined
efforts of the various Department of Justice components to
combating our Nation's gang problems, A?
And B, are you taking steps to combat gangs which are more
organized than neighborhood-based gangs that generally operate
regionally and nationally, across the country?
Mr. Mukasey. Definitely.
We have a facility, newly created, devoted to the gathering
and dissemination of information about gangs, both national and
international, gangs like M.S. 13 that cross not only state
boundaries but national boundaries.
We are working with the Bureau of Prisons to identify
people within prisons--we are working not only internally but
with people on the outside--who promote gang activity, and are
trying to adopt a coordinated response to that kind of
activity.
Mr. Coble. I appreciate knowing that. I was going to
mention M.S. 13 as well, but you beat me to it.
You have pretty well addressed the retroactivity question
surrounding the crack cocaine issue. And I think that has been
thoroughly discussed.
And, Mr. Chairman, I hope that you will note, I was going
to yield back my time before the red light illuminates, but I
see the Ranking Member wants me to yield to him.
Mr. Smith. Would the gentleman from North Carolina yield?
Mr. Coble. I will, indeed.
Mr. Smith. Thank you very much.
I wanted to follow up on a subject just mentioned by Mr.
Coble.
And, General Mukasey, this is something you touched upon a
while ago, and it goes to the sentencing guidelines.
I am just curious. Is there a way for the department to
track those individuals who are released early? And will you be
able to give a report to us as to what additional crimes those
individuals have committed? Is that something that is possible,
and can you get us that information?
Mr. Mukasey. ``Impossible'' is one of those words that I
try to avoid.
But I have to tell you that if a large number of
individuals are released, it is going to tax the resources of
the probation department, which has to supervise and keep track
of those people, which is already----
Mr. Smith. So the information is obtainable, it is just a
matter of time and priority?
Mr. Mukasey. Correct, but it is going to be difficult.
Going to be difficult. We will try to do it.
I hope we are not placed in that position, because once
March 3 arrives, there is no undoing that. It is not as if we
can turn the clock back.
In fact, one judge has already released----
Mr. Smith. Well, I think it would be important for us to
know and for the American people to know if, in fact,
individuals who are released early are committing additional
crimes.
And there may be a way for you to do a pilot test or test a
geographical location if you cannot do the entire number of
individuals released early.
Mr. Mukasey. We will try. I hope we don't have to try.
Mr. Coble. I will reclaim.
Mr. Smith. Thank you.
Mr. Coble. Mr. Chairman, do I get credit for yielding
before the red light, but for having yielded to the Ranking
Member?
Mr. Conyers. Only minimally.
Mr. Coble. I appreciate that.
Mr. Smith. I yield back.
Mr. Conyers. Chairman Bobby Scott of the Crime Committee?
Mr. Scott. Thank you. Thank you, Mr. Chairman.
General Mukasey, just briefly on the issue of torture, let
me just make sure I have got this right.
Is it the Department of Justice's position that if
Administration officials think that a person has important
information, in their opinion, the torture is legal, and that
decision is not subject to any judicial review or congressional
restraint?
Mr. Mukasey. No.
Mr. Scott. Then where is the review or restraint if
Administration officials decide to torture somebody?
Mr. Mukasey. The torture statute applies across the board.
There is an existing CIA program that has been found not to
violate that statute or any other applicable statute. That is
the only program that is now authorized.
Mr. Scott. So if it is, in fact, torture in violation of
the criminal code, the fact that some Administration officials
want to do it anyway--just because they want to do it, they
can't immunize themselves from the criminal sanctions?
Mr. Mukasey. That is correct.
Mr. Scott. Okay.
On the issue of human trafficking----
Mr. Mukasey. I should add, I can't----
Mr. Scott. Okay, well, in the issue of human trafficking,
the department can always prosecute any human trafficking case
in which it can prove force, fraud or coercion. It is often
difficult to get victims of sex trafficking to testify. And
there is legislation that has passed the House 405-2 which is
aimed at strengthening the department's ability to go after
traffickers who benefit from commercial transactions.
Can we get your support for the bill which would allow the
prosecution, notwithstanding the fact that you--without having
to prove force, fraud or coercion?
Mr. Mukasey. We focus our activities on the worst of the
worst. And we prosecute trafficking cases, we prosecute child
cases that arise from Internet victimization, we prosecute a
broad range of cases through a unit devoted specifically to
that effort.
The jurisdictional device you indicated of affecting
interstate commerce doesn't really raise the bar measurably,
because that is a--in my experience as a Federal judge, that is
a fairly low bar to meet, and would have the effect of
dispersing efforts that we need to focus on the most horrendous
cases.
Mr. Scott. And if in a horrendous case the victims are
unwilling to testify as to force, fraud or coercion, then you
would not support legislation that would make it a little bit
easier to prosecute?
Mr. Mukasey. I would be reluctant to support legislation
that would have the effect of dispersing resources that are
focused on cases that if you saw examples of them would mortify
you.
I spent part of the day visiting the National Center for
Missing and Exploited Children out in Alexandria. It is a life-
changing experience. That is the kind of case that we
prosecute. We cooperate with those people. We have law
enforcement people on the scene there.
Mr. Scott. The Department of Justice doesn't prosecute
every case that is technically within its jurisdiction. You use
discretion. And we would assume that even if we changed it you
would still use the discretion.
But let me go into another issues--back to the crack
powder/cocaine disparity. What portion of the defendants who
might benefit from the legislation--what portion of those are
violent and what portion of those are girlfriends just caught
up with the situation with their boyfriends and they are
serving decades, more than bank robbers and murderers? What
portion of them would your classify as violent criminals?
Mr. Mukasey. I think the statistic of which I am aware,
namely that a criminal history category of two or above, which
indicates some problem. The presence of--a two-point uptick for
presence of a gun, which, again, indicates a problem. A prior
gun conviction of any kind would encompass something like 60 or
70 percent of that first----
Mr. Scott [continuing]. An opportunity to check that
figure, because----
Mr. Mukasey. I will.
Mr. Scott [continuing]. We are given a different number.
Let me ask you one quick question. In terms of
discrimination, if there is a prohibition against
discrimination for Federal contractors, are there any
circumstances when it would be okay for a Federal contractor to
tell someone that they should not be able to get a job solely
because of their religion in a Federal contract?
Mr. Mukasey. As you describe it, there shouldn't be.
The question is whether there is legislation that addresses
that in a way that then doesn't require a court to make a
distinction that it isn't really equipped to make as between
what is or isn't a religious affiliation or what is or isn't a
religion, or to----
Mr. Scott. Sir, we have discrimination laws on the books.
Should it be legal for somebody to say, with Federal money,
``You can't get a job solely because of your religion''?
Mr. Mukasey. It should not.
Mr. Scott. Thank you.
Thank you, Mr. Chairman.
Mr. Conyers. The gentleman from Ohio, Steve Chabot?
Mr. Chabot. Thank you, Mr. Chairman.
First of all, Mr. Attorney General, let me commend you for
taking the time to go to the Center for Missing and Exploited
Children. I have toured there as well, and I agree with you
that it can be a life-altering experience. And I would
encourage as many colleagues to go there and see the good work
that they do and the horrors that are out there, especially on
the Internet, for many children nowadays.
So, thank you for doing that.
My first question: As you probably know, there is a great
deal of speculation that Delta Airlines may announce a merger
with another carrier. And I have a considerable interest in
this because in the greater Cincinnati area we have the second-
largest Delta hub in the Nation, only second to Atlanta.
Mergers within the airline industry are treated with great
speculation because of the impact that such a move has on
consumers in terms of numbers of flights and airfares.
And, in addition to the economic toll that could occur to
the city or the community when one of these mergers occurs,
there could be either businesses attracted to a community or
away from it, there can be considerable loss of jobs and a
number of things can happen.
My question is, how will the Justice Department treat such
intents to merge? And what factors will the Justice Department
examine?
For example, will the department look at such things as
loss of--to a particular region about impact on consumers, job
loss and those types of things, as part of the review?
Mr. Mukasey. I have met with the Antitrust Division. And
they examine every proposed merger that can have an anti-
competitive effect. And it is my understanding that they employ
a full-time economist who considers a broad range of issues.
I can't, as I sit here, regrettably, tick off each of the
issues. I didn't take economics, and I wouldn't presume even if
I had.
But they consider a broad range of issues. And they
consider the anti-competitive effect of any merger under the
laws as they exist.
Mr. Chabot. Thank you.
And my other question, General: As you are well aware, the
Nation is still trying to fully understand the events that led
to the subprime lending crisis and respond to the fallout,
which includes homeowners falling victim to foreclosure.
For example, Howard Coble, our colleague here, mentioned
this in a question that he had. I come from a little different
angle.
The state of Ohio ranks six in the number of homes that
have been the subject of foreclosure, with one in every 58
homes being foreclosed upon.
The city of Cincinnati, the city that I happen to
represent, witnessed an increase in the number of foreclosures
in 2007, placing it 30th on the list around the Nation in the
numbers of foreclosures that have occurred; the problem that we
are dealing with.
A primary reason for the foreclosure fallout are predatory
lending, lax lending--those are some of the main things. And
many of these were in place up until 2006.
My question is what is the Department of Justice doing to
investigate and prosecute those institutions that are directly
utilized or endorsed the use of predatory practices?
And I know that many state prosecutors are under way,
including in Ohio. What can the Justice Department do to
support these state efforts?
Mr. Mukasey. I think what we need to do and I think what is
being done is a gathering of facts and then a measuring of
those facts against existing Federal legislation to see whether
there are prosecutions that need to be brought.
If the conclusion is drawn that there is something that
prevents that, then, obviously, we need to consult with
Congress to get legislation on the books. But the first thing
we need to do is gather facts.
Now, I heard in one of the other questions that there are
reports that the FBI is doing that.
Mr. Chabot. Thank you.
And, finally, before my time runs out, I believe that in
response to the second part of Mr. Coble's question that you
stated that you don't have an opinion, either pro or con,
relative to the efficacy of allowing bankruptcy courts to
modify the mortgages of those who are in foreclosure due to
various predatory practices. Is that correct?
Mr. Mukasey. It is not a question of my not having an
opinion. It is a question of whether it is appropriate for the
Attorney General to sit and start expressing opinions on policy
questions rather than sticking to what he has sworn to do,
which is to enforce and obey the law.
Mr. Chabot. Thank you.
Mr. Mukasey. So I am just trying to take myself out of it
on that basis.
Mr. Chabot. Okay. Thank you.
We encourage you to stay out of it, too. [Laughter.]
Mr. Conyers. Members of the Committee, we will now take a
10-minute recess at the request of the Attorney General and
return immediately after the 10 minutes.
Thank you very much for your cooperation.
[Recess.]
[Off Mic.]
Mr. Mukasey [continuing]. We had what I think could be
called--what I think the diplomats called a frank exchange of
views with the Office of Management and Budget that resulted in
the budget that we have.
That said, what we are trying to do is to focus our efforts
and our glance in a coherent way so that we fight the problems
that we have to fight on an across-the-board basis without
particularly focusing on this program or that program.
Mr. Watt. Well, even if you did that, though, Mr. Attorney
General, if my math is right, $400 million into $1.7 billion is
about three or four times. You can't reorganize programs enough
to make up $1.3 billion, can you?
Mr. Mukasey. We can't create money out of the air,
obviously not. What we can do, though, for example, with
respect to gangs insofar as that might impact on the COPS
program, we have a center that is going to disseminate
information, with respect to gangs, to localities where the
gangs are functioning.
Mr. Watt. Yes, I understand that you are going to try to be
more efficient. I am just--unless you are telling me that there
is $1.3 billion worth of inefficiency in the Department of
Justice at this point, I don't know how you make up a $1.3
billion differential, what you are doing now for $1.7 billion
you are going to do for $400 million.
Mr. Mukasey. I think we are going to do our best, and we
are going to do what appears to make sense, which is to focus
our efforts in an across-the-board way rather than focusing on
whether this grant program or that grant program is in
existence. I think we can function effectively.
Mr. Watt. On $404 million, the Department of Justice can
function effectively?
Mr. Mukasey. We can make good use of any funds that we
get--no doubt about that.
Mr. Watt. All right. I am just--I know it is touchy to be
out of step with the President, even if he is not going to be
here when his budget he proposed goes into effect, so I am--I
mean, I understand what you are saying, but that seems to me to
be a pretty draconian cut that is being proposed.
And I appreciate your walking the line on---- [Laughter.]
Mr. Conyers. The gentleman's time has expired.
Mr. Watt [continuing]. And I understand you can't criticize
the President publicly on this, so that is fine.
Mr. Conyers. The Chair recognizes its only ex-attorney
general, Dan Lungren.
Mr. Lungren. Thank you very much, my only Chairman of the
Judiciary Committee at the present time.
Mr. Attorney General, welcome to the world of politics.
This is the only place where, when the President introduces a
$3.1 or $3.2 trillion budget, the largest in the history of the
world, the only thing you hear about is why he didn't spend
more.
I just came back from my district, had a couple of town
halls, and people were talking about excessive spending.
And I would use, as an example, the COPS program, where it
was sold by the Clinton administration as seed money that would
last for 5 years, that you would use the money and we would pay
100 percent the first year, 75 percent the second year, 50
percent the third year, 25 percent the fourth year. And in the
fifth year, local and state governments would be on their own.
But now we are told, if we don't extend the program, you,
Mr. Attorney General, working for the President, are bleeding
local government from their justified money. So, again, welcome
to the world of politics.
Let me thank you for your decision, in rejecting calls to
appoint a special prosecutor on the destruction of CIA
interrogation tapes case, not that you aren't looking at it but
that you believe that the department has the integrity to go
through that investigation by appointing a trusted assistant
U.S. attorney.
I am one of those who fears that we have depreciated the
value of the Justice Department, over the years, by immediately
moving toward special prosecutors, presuming that the Justice
Department can't do the job.
And so, I thank you for doing a professional job in your
decision-making on that.
Mr. Attorney General, I would like to ask you something in
the area of FISA, because some questions were posed to you.
Do you agree or disagree with the statement of your
predecessor, Mr. Griffin Bell, in 1978, when, in appearing
before the United States Senate in support of the creation of
the FISA act, on behalf of the Clinton administration--excuse
me, the Carter administration--he said that nothing in that act
could intrude on the President's inherent policy under
commander-in-chief powers to conduct foreign intelligence?
Mr. Mukasey. I think I have already said, in fact I think I
said in my--in the hearings on my confirmation, I pointed out
that statement.
But we are now in a world in which we are functioning under
a statute that we think works and that we want to have made
permanent and put in place long term. And that is where we are,
and that is where we want to be.
Mr. Lungren. But can the Congress inhibit the President by
statute where he has inherent constitutional power?
Mr. Mukasey. Again, I have said that there can't be any
inhibition on inherent powers, any more than the inherent
powers of Congress could be inhibited. But we are, with regard
to surveillance, in a place where we want to be, that is, with
everybody rowing in the same direction. And that is where we
want to stay.
Mr. Lungren. With respect to the issue of waterboarding, I
believe someone already talked to you about the statement of
Senator Obama about emergency situations and how, if he were
President, he would have to make a judgment at the time. That
was in response to a question by Tim Russert about whether we
could responsibly beat information out of somebody.
Senator Schumer talked about a hypothetical where thousands
of Americans' lives are at threat. And he said, ``My guess is
most Americans, most senators, maybe all, would say, do what
you have to do,'' so it is easy to sit back in the armchair and
say torture could never have been used, but when you are in the
foxhole, it is a very different deal. And I respect--I think we
all respect--the fact the President is in the foxhole every
day.''
And then, Professor Alan Dershowitz said that we need to
ask questions, such as would you authorize the use of
waterboarding or other nonlethal forms of torture if you
believed it was the only possible way in saving the lives of
hundreds of Americans in danger.
I ask you this because The New York Times described the
Department of Justice's memorandum on the legality of certain
interrogation techniques as simply--this is their description,
``preserving the broadest possible legal latitude for harsh
tactics.''
Do you agree that it is appropriate--it would be
appropriate for the Department of Justice, in looking at the
legality of those things, ``preserve the broadest possible
legal latitude for harsh tactics?''
Mr. Mukasey. It is very tempting for me to answer a
hypothetical question that appears to be favorable to a view,
as it is for me to be tempted to avoid answering a question
that appears to be unfavorable to a view.
That is why I don't answer hypothetical questions.
I think what we try to do is to preserve whatever options
we can, under the law, and to permit only what is authorized by
the law. That is what we do. And I think it is appropriate for
us to continue to do that.
Mr. Lungren. And you pledge to continue to do that?
Mr. Mukasey. I beg your pardon?
Mr. Lungren. And you pledge to continue to do that?
Mr. Mukasey. I do.
Mr. Lungren. Thank you.
Mr. Conyers. The Chair recognizes the distinguished
gentlelady from Texas, Sheila Jackson Lee.
Ms. Jackson Lee. Thank you very much, Mr. Chairman. And
thank you, Attorney General. It is a pleasure to have you
before us.
And very quickly, I just want to acknowledge and hope that
you will review the President's budget. Usually, it is a
concession by the department. But the zeroing out or the
seeming elimination of the COPS program is completely adverse
to, I think, the majority of the Members of this Committee.
So I raise that for your consideration. It is not my
question, right now. If you want to give it in the answers that
I may ask, I welcome that.
I am concerned about the Civil Rights Division. And I have
consistently raised the question, at just about every hearing
we have had with an Attorney General, and I again raise it.
And it suggests, the very top--and it may be very far away,
Mr. Attorney General, but I would just say to you Federal civil
rights investigations 1996 to 2006--and you can see a decided
decline down to 2006.
And so I have asked the previous Attorney General to give
an explanation for that. We did get what we call in Congress
``boiler plate'' response from the Justice Department--and let
me say on the record that it is totally unacceptable.
I would like for you to go back and to provide me with the
numbers of assistant attorneys general for civil rights, their
experience and the cases that they have been able to prosecute
in the last year--which is 2007, because that goes through to
2008. And I will just quickly go past to my questions.
This, I think, is appalling, and it evidences the collapse
of the Federal Government's intervention in egregious actions
around America.
In the envelope that I was able to give to you--and I thank
you--they are letters to the former Attorney General. And they
look at issues such as Harris County jail, where 109 deaths in
custody occurred over the last 10 years. We have been asking
for a Federal investigation on the Harris County jail.
The Texas Youth Commission has been charged with incidences
of sexual abuse against young people.
And then we have a circumstance of our district attorney
who has been found with a number of e-mails that really suggest
that he has a different view of African-Americans. This is a
picture, allegedly, of an African-American with broken
watermelon around him. It depicts a Black man lying on a
sidewalk surrounded by half-eaten pieces of watermelon and ab
empty fried chicken bucket, and it is entitled, ``A Black man
OD-ing.''
We think that these are issues that warrant a larger hand
of investigation, and it means the Federal Government.
So my question to you is--and I am very glad to work with
our Chairman, because I am looking forward to a meeting, a
briefing, a hearing in Houston on this array of abuses.
By may I ask the question about the federal--your view of
the view of the Federal civil rights division--and if your
answer could be pointed--but in terms of looking at these
questions that are raised by Members of Congress as it relates
to civil rights of individuals being prosecuted across America?
Mr. Mukasey. The response of the Civil Rights Division is
not simply to questions that are raised by Congress. It is to
civil rights problems across the board.
And I have met with the current nominee to be the Assistant
Attorney General for the Civil Rights Division. I have met with
each of her unit chiefs. And what I have tried to stress--and
this is not by way of preaching, but by way of conversation
and, I hope, example--that that Division represents--hate to
say more than others, but it probably is true, more than
others--the essence of what the Civil Rights Division's mission
is supposed to be.
Ms. Jackson Lee. Well, would you join me in encouraging her
to look into these series of what I perceive to be violations
or egregious incidences, in particular, in Texas?
Mr. Mukasey. I will certainly call them to her attention. I
will encourage her to find out whether we have got jurisdiction
to do anything with regard to any of those. And I encourage any
Member of this Committee who finds any evidence of a civil
rights violation to call it to our attention.
But I want to stress that that Division doesn't simply
respond to congressional requests, not that that is
unimportant. It is important.
Ms. Jackson Lee. I understand.
Mr. Mukasey. But their mission is much more proactive----
Ms. Jackson Lee. I understand.
Mr. Mukasey [continuing]. And they understand----
Ms. Jackson Lee. Let me reclaim my time--because I have two
quick questions. One, on the Jena 6 prosecution, as well--was
an issue where the department was missing in action.
I want an explanation as to why we did not prosecute or
look into the individual prosecutor, but prosecute the
perpetrator of the noose originally. This is not during the
march.
My last point is on FISA, and to give an explanation as to
why the Administration would not accept an amendment that would
prevent reverse targeting without securing a warrant when you
are trying to get someone who is placed here in the United
States.
You are looking after someone on foreign soil, but you wind
up getting someone on the United States, and you are doing it
without a warrant.
Mr. Mukasey. The short answer to the last question is there
is already a law in force preventing reverse targeting. The
language that has been proposed suggests an ambiguity in the
standard that would bar us from getting the incoming call from
somebody abroad, who we can target, to the United States. And
that is the call we want to listen to.
But so far as the claim that the department, that the Civil
Rights Division, was missing in action in Jena 6, I most
respectfully disagree. We had people there from the Office of
Community Relations right away. They are on the ground. They
are still looking into that.
We had people from the Educational Opportunities Section
looking at the compliance by that school, the school where that
incident occurred, with an existing desegregation order. And we
are still looking at that incident.
And as you know, we have prosecuted what regrettably has
come to be known as a noose violation that occurred when people
coming back from the demonstration gathered at an interstate
facility, and were greeted by the horrible sight of somebody
driving around in a truck with nooses hanging off the back. One
of those people has been indicted.
Ms. Jackson Lee. Well, that was after the fact. I hope you
can give me a report of what you did leading up to the tragedy
of those six young men being arrested unfairly and prosecuted
and their lives taken away because they were prosecuted as
adults--felon adults, and nothing happened to the young men who
hung the noose originally at that school.
That has to be a civil rights violation that your U.S.
attorney failed to prosecute.
And I disagree with you on FISA, but let us hope we can
work together on that, because I think we need to protect the
civil liberties of all Americans.
I thank the Chairman. I yield back.
Mr. Conyers. The Chair recognizes Randy Forbes of Virginia.
Mr. Forbes. Mr. Chairman, it is Mr. Cannon who is next. He
was here before me.
Mr. Conyers. Oh, I am sorry. I didn't see Chris Cannon of
Utah entered the hearing room and is recognized.
Mr. Cannon. Thank you, Mr. Chairman.
Mr. Forbes is infinitely more important and articulate than
I and I would gladly defer to him, but I do have a statement
and a couple of questions for General Mukasey.
In the first place, thank you for being here. We appreciate
the calm that you have brought to the department.
As the Ranking Member of the Committee on Commercial and
Administrative Law, which does not sound relevant, except that
it has oversight of the U.S. attorneys and having had, it seems
to me dozens and dozens but was probably less than two dozen
hearings on the topic, we are glad you are there and directing
the department with a firm hand.
Let me ask a question about the D.C. gun ban. The position
taken by the Attorney General has raised some concern. And I
understand that his position is that he wants to protect the
department's ability to prosecute and enforce Federal fire arm
laws.
But, notwithstanding those laws, do you agree with the
argument that the Second Amendment is an individual right? And
does the Administration agree with you as well?
I think--obviously, as you know, the case is up for
decision by the Supreme Court, so I am kind of limited in what
I can say. The department's position, as outlined in its brief,
is that--at least I believe, that the Second Amendment is a
personal right. And I understand that to be the
Administration's position.
Thank you. I appreciate that very much.
I think it is a personal right. I don't think the
Constitution--the words make any sense unless you read it that
way, and especially if you look at the history and the failed
attempts by some folks to try and rewrite that history,
fabricating facts.
So it appears to me that we are on a course to clarify what
has seemed to me to always be a straight-forward issue with an
attempt to muddle and use Federal law to obfuscate a basic and
fundamental right that I think is foundational to America's
freedoms.
During much of last year, we have heard the argument that
the Department of Justice was broken and a new AG was needed.
We have a new AG, Attorney General, but it is my understanding
that there are 10 main Justice positions for which nominees
have been sent to the Senate, but none have been confirmed.
And those include deputy attorney general and associate
attorney general positions.
It appears that you are the quarterback but without a front
line. I am wondering if you can talk about the problems you and
the American public faces as a result of Senate inaction on
these qualified nominees. Do you need some help?
Mr. Mukasey. We need to get confirmed nominees in the
positions for which they have been nominated.
That said, I must say that the people who are functioning
in acting capacities are functioning well and valiantly. But
that is not to say that we don't need--what we need is
stability and a sense of stability that is conveyed by having a
confirmed nominee there. That is what we need.
Mr. Cannon. Thank you. I agree entirely with that. We have
wonderful career bureaucrats in the Justice Department, people
who are committed to the ideas and the continuity of what the
Justice Department does, whether or not you have a Republican
administration or a Democratic administration.
But it just seems to me that they are programmed to work in
a situation that includes political appointees, and the Senate
has a responsibility to confirm those appointee who are--if
they are qualified, and I don't think there has been any
question about their qualifications, just delay and more delay
on the part of the Senate.
Of course, there is a lot of delay on other issues as well.
But this one is vital, it seems to me, and they need to come
forward.
The matter of the CIA's destruction of video tapes of
interrogations of terror suspects has received a great deal of
attention recently. I understand that there is an ongoing
investigation of the matter and that you may not be able to say
much about it today.
Can you discuss your decision on the appointment of veteran
Federal prosecutor Mr. John Durham and why you chose not to
appoint a special counsel?
Mr. Mukasey. I can't get into confidential discussions and
executive matters. I can say that we looked initially to the
U.S. Attorney's Office in the district where the CIA is
located. That U.S. Attorney's Office, by mutual agreement,
recused itself, and we appointed John Durham to be the acting
United States attorney for the purpose of--to be--the United
States attorney for the purpose of this case and to investigate
this case.
The fact that one office recused itself does not in any way
disqualify the department from conducting the investigation and
to say that because this is a case that has gotten a great deal
of attention necessarily means that we have to go outside the
department and appoint a special prosecutor and so forth sends
the wrong message in two respects.
One is, it undermines confidence in the department to deal
with cases involving public officers. We have a whole public
integrity section that deals with cases of that sort, would
send that message to the public at large, and it would also
tell the department, you can't be relied on to investigate a
case that has widespread public interest.
Neither of those messages is warranted.
Mr. Cannon. I think I agree entirely with both of those
points. And recognizing my time is expired, Mr. Chairman, I
yield back.
Mr. Conyers. The Chair recognizes the distinguished lady
from Los Angeles, CA, Member of this Committee, Maxine Waters.
Ms. Waters. Thank you very much, Mr. Chairman. I would like
to thank the Attorney General for being here today, and to just
say that I and others believe that the department is absolutely
broken and lacks credibility, and that the past Attorney
General resigned in shame and dishonor.
And so I am very concerned about one of your statements. On
page 24 of your written statement, under a headline called
``Protecting Communities from Violent Drug Offenders,'' you
state that nearly 1,600 convicted crack dealers will be
eligible for immediate release--and you emphasized the word
``immediate''--if Congress doesn't act.
You also stated, ``Retroactive application of these new
lower guidelines will pose significant public safety risks.''
Such a statement appears to me to be a distortion of the
Sentencing Commission's decision, because it completely ignores
the process that must be followed before anyone is released.
Mr. Attorney General, isn't it true that the Sentencing
Commission's decision does not provide an automatic release?
Mr. Mukasey. It provides for an automatic downtick in the
guideline range, and for sentencing.
We have to understand, though, the context in which that
would arise. It arises in a case that, almost by definition,
occurs some substantial time before it comes back to the court.
It necessitates the court going back through the record.
It, in many cases, involves having the United States
attorney who--if you are lucky, he is still there.
If he remembers the case or not, is something else, again.
And it has to come up then for resentencing.
They are eligible for automatic release, that much is true.
They also get the benefit, as others in prison do not get the
benefit, of the new--relatively new regime under Booker in
which the guidelines themselves are optional. So we have
selected out for better treatment that group of defendants who
then get resentenced under the optional guidelines under
Booker.
Ms. Waters. Well, what you just described was the process.
And you described in that process several ways by which one may
be eligible or may be released.
Your statement on page 24 does not in any way capture that
there is a process. It talks about immediate release. And I
think for this department to have credibility again--if it is
ever going to gain credibility, that the statements that come
out of the mouth of the Attorney General should be ones that we
can rely on.
And I bring that to your attention because it is important
to always describe that there is a process that--nobody is
taking the key, unlocking the jails and say, ``Everybody is
out.'' That does not happen.
Let me just move on with another concern that I have about
predatory and subprime lending and race. What we have
discovered is that minority communities have been targeted and
fraud has taken place. And it is not simply a subprime lending.
It is a combination of targeted communities for subprime
lending and fraud, and that people of color, African-Americans
in particular, have been harmed by this practice.
What have you done, what has the department done to
investigate these cases?
Mr. Mukasey. Facts are being gathered to determine whether
there is Federal jurisdiction to prosecute cases of the sort
you described. I should point out that we have prosecuted and
are prosecuting cases involving discriminatory denials of
credit. We have been doing that straight along, and we have
done it in a number of----
Ms. Waters. I am interested in the crisis that we are in
now. I was in Ohio, for example, where whole blocks were
boarded up in an African-American community. And also we are
finding that in California, where San Bernardino-Riverside area
ranks number 5 in foreclosures in the country, that they, too,
are minority communities.
I am wondering if specifically you have done anything to
look at that kind of targeting and the race questions.
Mr. Mukasey. We are gathering facts to determine whether we
have jurisdiction to prosecute any of those as criminal
violations. If we don't, obviously, there is going to have to
be legislation from this Congress.
Ms. Waters. Would you be wiling to come forth with
suggested legislation if you find you do not have a
jurisdiction?
Mr. Mukasey. If we can come up with legislation, we hope to
work with Congress to get it--if it is necessary.
Ms. Waters. How long do you think it will take you?
Mr. Mukasey. I cannot, as I sit here, give you a deadline,
I am sorry.
Ms. Waters. But it is one of your priorities?
Mr. Mukasey. It certainly is one of my priorities.
Ms. Waters. I would certainly hope so, Mr. Attorney
General.
Let me point you to the Gulf Coast. After Hurricane
Katrina, during field hearings of the Financial Services
Housing Subcommittee in Mississippi and Louisiana, a number of
witnesses complained about local actions to keep African-
American renters out of their communities--Saint Bernard
Parish, for example--and local resistance to the development of
affordable housing that appears to be based on racial makeup of
the prospective tenants, as much as it is to objections to
affordable housing.
These actions and resistance are having a serious adverse
impact on the ability of hurricane-ravaged communities to
provide and rebuild the affordable housing stock in their
communities and contributing to the ongoing housing crisis for
poor minority people.
At least one private Fair Housing Act lawsuit against St.
Bernard Parish has been brought.
Has the Civil Rights Division initiated any such lawsuit?
Is the Civil Rights Division investigating any allegations that
such resistance to affordable housing projects violates the
Fair Housing Act?
Mr. Conyers. The gentlelady's time has expired but----
Ms. Waters. Could I get an answer, Mr. Chairman----
Mr. Mukasey. The short answer is, I don't know the
particular circumstances you have described, but I am more than
willing to get back to you in a question--in written form,
because I think the question deserves--certainly deserves an
answer.
Ms. Waters. And while you are doing that, would you also
check out the race-based advertising on the Internet as it
relates to housing in that area?
Mr. Mukasey. I will check out whatever--what you have asked
about.
Ms. Waters. I am asking about that, too.
Mr. Mukasey. Okay.
Ms. Waters. Thank you.
Mr. Conyers. The Chair recognizes Randy Forbes of Virginia,
the former Ranking Member of the Crime Subcommittee.
Mr. Forbes. Thank you, Mr. Chairman.
And, Mr. Attorney General, thank you for being here.
To say the department is not now, nor has it ever been in
its history perfect, nor will it ever be perfect, seems obvious
to anyone who has ever been involved in government, but to
suggest that means the department is broken is certainly a
misnomer and a stretch.
And I am just like to switch to a little different topic
now. We have had former Attorney Generals that have testified,
and we have had a number of other people in various departments
about a different issue, one that the Chairman of the
Subcommittee on Crime and Terrorism and Homeland Security was
courteous enough to have a hearing on recently, and that is
espionage.
And the question I would ask for you today, do you agree
with the testimony that we have had that China is currently the
number one espionage threat to the United States?
Mr. Mukasey. I am really not at liberty to talk about
matters that are classified. And part of the problem is that
the information that I have about that comes in part based on
classified information to which I have access. And I am very
reluctant to get into that.
Mr. Forbes. Is there any part of that, since we have had
much of that it has been testified to, some by your department,
that was not in a classified setting, is there any part of that
espionage that you can testify about today?
Mr. Mukasey. Not that I am aware of as I sit here, and I
don't want to make any mistake in the wrong direction.
Mr. Forbes. Okay.
Mr. Chairman, then I don't have any other questions.
Mr. Conyers. The Chair is pleased now to recognize the
Chairperson of the Immigration Subcommittee, Zoe Lofgren of
California.
Ms. Lofgren. Thank you, Mr. Chairman.
And thank you, Mr. Attorney General, for being here with us
today.
One of the things I am interested in is the efforts you are
making to adjust or to recoup for some of the problems that we
discovered in the Department of Justice.
For example, last year, the Department of Justice's former
principal deputy director of public affairs, Monica Goodling,
appeared here and testified that she applied a political litmus
test to determine who would hold certain positions in the
Department of Justice.
And, if I recall correctly, she said she stepped over the
line. What she actually meant was that she violated the law by
providing a political litmus test in the appointment of
immigration judges who are civil servant appointees and not
political appointees.
And I am wondering what concrete steps you are taking, both
about future hiring decisions when it comes to immigration
judges and how to deal with the politicization of what should
have been civil service appointments, in your new post?
Mr. Mukasey. Well, as you know, some of that is still under
investigation by----
Ms. Lofgren. I am just telling you what she told us, here,
under oath.
Mr. Mukasey [continuing]. The Office of the Inspector
General and the Office of Professional Responsibility.
However, I have, myself, signed appointments of immigration
judges. And I think I have made it clear that any political
consideration, in that regard, is not to be made.
And I have said that on more than one occasion. And I have
not seen, in those appointments--and believe that I will not
see in any future appointments--any evidence of anything of
that kind.
Those are merit appointments, and those should be merit
appointments. Those will continue to be merit appointments.
Ms. Lofgren. Well, just to follow up on the general topic,
Chairman Conyers and I sent you a letter in January--and I am
not complaining that you haven't answered yet, because it was
just a few days ago--but, talking about a Board of Immigration
Appeals decision that radically reverses a longstanding policy
of our government about asylum for victims of female genital
mutilation.
And I am concerned--I don't want to say that there is a
political issue. But this has been well-settled law for a very
long time. We give the citations.
And I am just hoping that you can take a look at, not only
that letter and the citations, but make sure that there is no
political overtones to such a radical departure from well-
settled law.
Mr. Mukasey. I mean, I can't imagine how there would be a
political overtone, but I am going to look at the letter and
the underlying opinion.
Ms. Lofgren. I meant to follow up on another subject, and I
know there has been a lot of discussion about this. But on the
FISA bill that we are working on, obviously, we are working in
good faith to get the best bill that we can, that gives the
government the tools it needs but also respects the
Constitution.
And I am hopeful that we will--if the Senate can move--that
we will have a good bill that we will be able to send to the
President for his signature.
It seems to me, earlier today, you testified that the
telecommunications companies had not violated the law.
And I just--I am a little stunned, actually, to think that,
if we gave you a bill that had all of the tools that you
wanted, that allowed you, the Administration, that you would
recommend that it be vetoed simply because of a monetary damage
issue for--or the potential exposure of liability to these
private companies.
Is that really your position?
Mr. Mukasey. No. And I am glad you raised it in that form.
It is not simply a monetary issue. It is a signal to them,
essentially, that, if you are asked, in good faith--you respond
in good faith to a request to cooperate with the government;
you are assured that your activity is lawful; and you then
cooperate, that you do so at your own risk.
Because that is a statement not simply to the telecoms but
it is a statement to every business, every CEO in the country.
Ms. Lofgren. Well, but CEOs also have an obligation to
independently adhere to the requirements of the law.
I will give you an extreme example. If you went to me and
said, ``Here is a gun; shoot Adam Schiff,'' I couldn't say that
that is----
Mr. Schiff. Can you use a different example?
Ms. Lofgren. A different example? [Laughter.]
I couldn't say that is okay, because you told me to do it.
Mr. Mukasey. That is correct. But to say that you should
not shoot Representative Schiff, because I asked you to do it--
understanding that I would not do that----
Mr. Schiff. Mr. Chairman, can we change the hypothetical?
Ms. Lofgren. Yes. [Laughter.]
I will change the hypothetical----
Mr. Schiff. Thank you.
Ms. Lofgren [continuing]. With discharging a fire alarm to
hit that pitcher of water, in violation of the law.
Mr. Mukasey. That is all light years away--light years away
from what we are talking about here. We are asking, and
suggesting to companies, essentially, that they cooperate, at
their peril, and that the only rational thing for them to do is
to get a court order, to resist cooperation, and essentially to
lengthen the process and prevent us from getting their
cooperation.
And that is a signal that is being sent, not simply to
telecoms, but to business across the----
Ms. Lofgren. I very much disagree, Mr. Attorney General.
Mr. Mukasey [continuing]. Cooperate with law enforcement,
and they do cooperate with law enforcement.
Ms. Lofgren. I know my time is expired, but I will just say
that no court is going to assign liability unless there is a
pretty clear and bright line to accompany.
I just don't see how, number one, retroactively, if they
have done nothing wrong, what the problem is. Ordinarily, we do
not enact laws to prevent ongoing cases from being heard and,
prospectively, you know, if we were to sit down, I am sure we
could coming up with something reasonable, but we have just
gotten, kind of, a stonewall from----
Mr. Mukasey. This is an issue of ongoing litigation,
disclosing details of their participation, disclosing who
participated and who didn't, exposing them to not only a hit in
the stock price, but sabotage and other acts, simply, we think,
is unacceptable, and would result from a continuation of the
litigation.
That is why we are opposed to it, in addition to the push-
back that we are going to get, and that has already started.
Ms. Lofgren. My time has expired. Mr. Chairman, I
appreciate your indulgence.
Mr. Conyers. Steve King is the Ranking Member on
immigration, from Iowa. We recognize him at this time.
Mr. King. Thank you, Mr. Chairman. And, Attorney General
Mukasey, I want to thank you for your testimony here today. It
is, I think, a very capable testimony that demonstrates a clear
understanding of duties in the law.
And I recognize that you haven't had a lot of time to get
acclimated to this particular task.
But I do have a number of things I would like to discuss
with you. And one of them would be, I believe, something that
needs to be explored a little more thoroughly.
And that is the issue of the liability with regard to FISA,
and companies that are in a position to provide information
that can help our national security, protect American lives and
American national security.
And we have had some significant discussions, in this
chamber, about the liability and how one might address that.
But I don't know that we have had discussion about the
intimidation effect.
And I am just going to speculate that not only
telecommunications companies and other communication companies
that have a lot of data out there that can be stored and
sorted, that one can find indicators in, to be able to target
Al Qaida and other enemies of the United States--not only those
companies but other companies across the spectrum of services.
It might be cell phone companies, for example. And the idea
that because there is not liability protection, then can--I am
going to presume--and I am going to ask you how this might
affect our national security--I am going to presume that these
are--there are companies now that are gathering their legal
brains together and meeting together in their trade
associations to determine how they are going to protect
themselves from this impeding liability.
And do you believe that that could affect our national
security?
Mr. Mukasey. I certainly do. And, again, here in part I am
going on the basis of my experience as a private lawyer, and
that is that companies want to protect themselves from
liability. And it may very well be that the best way to protect
yourself from liability is not to have the information in the
first place.
It may very well be that the best way to protect yourself
from liability is to resist, to say, ``Under ordinary
circumstances I would love to cooperate, but in the current
atmosphere I can't be certain that my cooperation isn't going
to be the subject of a lawsuit, so I need a court order.''
And all of that adds burdens, and sometimes--obviously, if
information is destroyed, will deprive us of the opportunity to
get the information, to get the cooperation.
Mr. King. Even though we have had some discussions about
the destruction of some tapes that had to do with some
interrogations, we may well be, as we sit here, be having
information that is being destroyed by private companies so
that they don't have to consider whether or not to provide
information if it is requested because of the liability that is
potential.
Mr. Mukasey. An important consideration.
Mr. King. Thank you.
Moving on to another subject, on the Voting Rights Act, in
the investigations that have gone on in some of the covered
districts, the judgment that might come from the Department of
Justice on whether to initiate an investigation, what might
that be based upon?
Mr. Mukasey. I can't, as I sit here--I mean, I have
expressed a reluctance on many subjects about answering
hypotheticals. But the fact is that we have litigated and
defended the renewal of the Voting Rights Act, the
constitutionality of that, and we are going to continue to do
that.
And, obviously, we are looking at patterns and practices,
if there are such, of race-based denial of the right to vote,
and so on, that would result in instituting----
Mr. King. Would you agree also that it would be based upon
an objective analysis of existing law and the Constitution?
Mr. Mukasey. Absolutely.
Mr. King. And if there are any issues aside from that, say
if a local jurisdiction had passed some immigration enforcement
law, it would have no bearing upon the consideration of the
department? Immigration enforcement law?
Mr. Mukasey. As I sit here now, I can't think of the
connection between the passage of an immigration enforcement
law and a voting rights offense.
That said, if somebody showed such a connection, then that
is something that somebody would have to look at.
Again, I am reluctant to deal with hypotheticals.
Mr. King. Thank you.
And I want to just quickly switch to hate crimes. And we
had witnesses, here at this same table that you are seated at,
with regard to the Jena 6. And U.S. Attorney Washington
testified, seated at that table, that he didn't believe that
hanging a noose on--that he believed that hanging a noose in a
tree, in Jena, was a hate crime. So did every witness on the
panel agree that it was a hate crime.
And yet the follow-up question was that, did that they
believe that the assault on the young White gentleman--and
particularly the name in the press is Mykal Bell, as one of the
perpetrators, who has since confessed.
The testimony from the U.S. attorney was that he didn't
believe that the assault on that young fellow by six African-
Americans was a hate crime.
And I am having trouble reconciling that. And I wonder if
you might be able to do that.
Mr. Mukasey. Jena is a matter that is still under
examination. I am reluctant to comment on matters that are
under examination.
We do hate crimes. We prosecute hate crimes, the one as
well as the other.
Mr. King. I hope that is the case. I trust it is. And I
appreciate your response, Attorney General.
And I thank the Chairman. I yield back.
Mr. Conyers. Thank you.
The Chair is pleased to recognize Robert Wexler, the
gentleman from Florida.
Mr. Wexler. Thank you very much, Mr. Chairman.
Welcome, Mr. Attorney General. Thank you for being here.
I would like, with your permission, to go back to an issue
raised by Mr. Berman, which is this Administration's failure to
comply with congressional subpoenas.
This unprecedented obstructionist policy I think is best
exemplified by the refusal of White House Chief of Staff Joshua
Bolten and the former White House counsel, Harriet Miers, to
even appear before this Committee to answer legitimate
questions about the firing of nine U.S. attorneys.
As I know you are aware, on July 25 of this past year, this
Committee approved contempt citations for both Mr. Bolten and
Ms. Miers for their unprecedented refusal to appear before this
Committee.
Sadly, this behavior, abuse of power, in my mind, by this
Administration, is a pattern of limitless executive branch
usurpation of authority. We have experienced endless executive
privilege claims in the areas regarding the U.S. attorney
firings, illegal wiretapping, and, of course, in the most
notorious case, where the executive privilege got to the
ludicrous point of Vice President Cheney arguing that he wasn't
even a part of the executive branch in order to avoid a Freedom
of Information request.
These abuses of executive power and the fact that the White
House still refuses to provide any answers whatsoever to
subpoenas is one of the primary reasons I have called for
impeachment hearings regarding the Vice President of the United
States.
I think it is unfortunate, I think the American people lose
in a big way, but I believe--by the Administration not
providing information--but I believe that impeachment hearings
are the only way to actually obtain answers from this
Administration.
With that context, I am curious, have you been instructed
by the President of the United States to enforce or not to
enforce contempt citations issued by the Congress?
Mr. Mukasey. Respectfully, I cannot go into and will not go
into, by way of affirmance or denial, any conversations that I
have had with any other member of the executive on that subject
or related subjects.
I should say that there is a long line of authority, going
back several Administrations, back to the Clinton
administration and beyond, that says that the enforcement by
way of contempt of a congressional subpoena is not permitted
when the President directs a direct adviser of his, somebody
who directly advises him not to appear or when he directs any
member of the executive not to produce document.
That much said, there is a long history as well of
cooperation and accommodation between branches, between
Congress and the executive in accommodating one another's needs
so that we don't have to come into collision in that fashion.
Mr. Wexler. Thank you, Mr. Attorney General.
Cn you tell me the individual that President Clinton
instructed not to even appear before this Congress?
Mr. Mukasey. Walter Dellinger rendered an opinion
respecting the reach of executive privilege. I can't sit here--
--
Mr. Wexler. I didn't ask about opinions. I am asking if
President Clinton instructed any individual in the Clinton
administration not to appear before Congress.
Mr. Mukasey. I do not know that.
Mr. Wexler. Okay. There is nobody. This is an unprecedented
act where the President of the United States has taken the
position that a high-level Administration official should not
even appear. And I asked--I will ask it more generally, then--
have you been instructed to enforce or not enforce
congressional citations?
Mr. Mukasey. I will give the same answer that I gave
before, which is that conversations between executive branch
members are privileged. And that doesn't mean that I have or
have not.
Mr. Wexler. Okay, fair enough.
Should Congress pass a contempt citation, will you enforce
it?
Mr. Mukasey. A contempt citation of----
Mr. Wexler. With respect to the subpoenas, with respect to
Mr. Bolten?
Mr. Mukasey. If you are talking about a contempt citation
based on Mr. Bolten's failure to appear----
Mr. Wexler. Yes.
Mr. Mukasey [continuing]. In response to a direction by the
President that he not appear, the answer is no. Because he
can't violate that request.
Mr. Wexler. Are you the people's lawyer, as you said to the
Senate, or are you the President's lawyer?
Mr. Mukasey. I am the Attorney General of the United
States. And it is my obligation to enforce all legally binding
precedent.
Mr. Wexler. Thank you, Mr. Chairman.
Mr. Conyers. I am pleased now to recognize Judge Louie
Gohmert of Texas.
Mr. Gohmert. Thank you, Mr. Chairman.
And thank you, Attorney General. It is a pleasure having
you here.
In talking with Darrell Issa during the break, previously,
he was an enlisted man in the Army, and having gone though
basic, as he did, and I went through officer basic--we were
both sharing stories.
And we are wondering, because of some of what we believe
was torture--I mean, people were put at risk in the training we
went through in the water. We drug one guy out, passed out. If
we hadn't been there, he would have died.
If we can find our drill sergeants' names, would you be
willing to prosecute them for water torture?
It was pretty rough, what we went through.
Mr. Mukasey. I don't--I don't know what you went through.
And I am not going to--I have expressed a reluctance to answer
hypotheticals. And I am----
Mr. Gohmert. Well, the truth is, apparently, the Army
believed that there were some risks in making us go through
training like that. But because of the risk that we faced by
those who hated our country and wanted to destroy it, it was
worth putting us through that kind of rigorous training.
So it just occurs to me that we have people in uniform of
our own country that go through worse so-called torture by
drill instructors than those that are being defended in
Congress at this time who want to destroy our country.
But now I am very concerned about this issue, and it came
up in your first series of questions, about would you go after
our intelligence officers or our military officers who relied
on the representations, no matter how good or bad, by a prior
Attorney General, by a prior Justice Department, and prosecute
them for following that instruction from the Department of
Justice.
The message that would come out of that is devastating. For
people who are in uniform, for intelligence officers to be
told, ``You follow the instructions and the direction of the
Justice Department and that is meaningless because we still may
come after you and put you in jail,'' will have such a chilling
effect on the protections of this country and the kind of
people that lost their lives on 9/11, and it really scares me.
Now, if we disagree with the position of a Justice
Department, we can do in this great country what was done when
people raised Cain over our friend Alberto Gonzales. There are
some things that could have been done better. No question about
that. That is how we move forward.
But I, for one, and I know there are plenty others that
appreciate the fact that you are not willing to do what was
done in the movie ``Animal House'' there where a guy put his
hand around the poor guy whose car had been wrecked and said,
``Hey, you messed up. You trusted us.''
We shouldn't have Attorney Generals in that position, and I
appreciate the fact that you really don't want to go there.
Now, I also had some concerns, wasn't there a sergeant who
was kidnapped, and because FISA had gone out, we were blind for
at least 3 days, we gave his captors 3 days' lead time when we
couldn't protect one of our own? Was there something to that
story?
Mr. Mukasey. I have heard an account relating to a delay
necessitated by applying for authorization to conduct
surveillance. We prepared the papers as quickly as we could and
applied.
I think that puts a human face on the problem posed by
delays generally. I am not familiar with the details, but I do
know that we acted within a matter of a couple of hours to put
together the necessary papers to try to resolve that.
Mr. Gohmert. You had some hypothetical thrown at you by my
friend, and I have great respect for the Chairman of the
Immigration Subcommittee talking about Monica Goodling. And she
did say words to the effect that she may have stepped over the
line when she used political considerations.
But my understanding of her testimony and my understanding
in talking with her afterwards was that wasn't about
immigration judges, that was about staff. And she had concern,
as conveyed to me, that where someone says that laws like
election fraud, we shouldn't bother prosecuting those, that she
felt like that was a political consideration that merited her
consideration in whether or not to hire them.
That is the kind of political consideration she was talking
about, General, that some people--she thought perhaps that is a
political consideration, would they follow the law, prosecute
all laws, because some people pick and choose between which
laws.
And she was a wonderful employee, and I think she was done
wrong here, and I just wanted to make sure the record was
straight, as I believe, of what she said and what she meant
here before this Committee.
Now, I see my time has run out. I am grateful you are here.
And I am grateful you are the Attorney General. Thank you.
Mr. Conyers. The Chair recognizes William Delahunt, the
distinguished gentleman, ex-prosecutor, from Massachusetts.
Mr. Delahunt. Thank you, Mr. Chairman.
Mr. Attorney General, in response to the first question
that was posed by Chairman Conyers, maybe I misunderstood your
response, but it went something like this, that, if an opinion
was rendered that an individual acted in a way pursuant to a
legal opinion of the Attorney General, that would insulate him
or her from any criminal responsibility regarding his actions
as an assistant Attorney General, or someone from the White
House.
Or maybe I am confused. Because it sounded like a brand-new
legal doctrine to me.
Mr. Mukasey. I think what I said was that we could not
investigate or prosecute somebody for acting in reliance--we,
being the Justice Department--could not investigate or
prosecute somebody for acting in reliance on a Justice
Department opinion.
This is the question specifically concerning----
Mr. Delahunt. Okay, but----
Mr. Mukasey [continuing]. The disclosure that
waterboarding----
Mr. Delahunt. Okay. If that Justice Department opinion was
inaccurate, and in fact violated a section of the, you know,
U.S. criminal code, that reliance is, in effect, an immunity
from any culpability, any criminal culpability?
Mr. Mukasey. It is a justified reliance that could not be
the subject of a prosecution.
Immunity connotes culpability.
Mr. Delahunt. You know, this is--this is brand-new legal
theory, at least in terms of my own legal scholarship.
I mean, relying on an opinion that has--is inaccurate, that
is mistaken--and I am not looking to prosecute any, you know,
individual in the Department of Justice or any of our
government agencies. But one would only need to secure a
Department of Justice opinion to be insulated from prosecution.
Am I accurately portraying your position?
Mr. Mukasey. What I said was that the disclosure that
waterboarding was part of the CIA interrogation program at the
time that it was carried out and that it was permitted by a
Justice Department opinion would bar--should bar--an
investigation of the people who relied, justifiably, on that
opinion in conducting their activity----
Mr. Delahunt. But for--excuse me, for the sake of argument,
let us hypothetically concede that waterboarding is in
contravention to an international obligation, pursuant to the
Convention against Torture.
And if an opinion was rendered that amounted to malpractice
that whoever employed that particular technique, simply by
relying on that opinion would--ought not to be investigated or
would be legally barred from investigation and criminal
responsibility--is that what you are telling us?
Mr. Mukasey. If you are talking about a legal mistake,
there is an inquiry with respect to, not the OLC opinions I am
talking about, but other OLC opinions relating to surveillance
that relate to whether people properly rendered opinions or
didn't.
But to rely on an opinion that some later Attorney General
thinks is mistaken would, yes, bar the person who so relied in
good faith from being prosecuted.
Mr. Delahunt. I find that--I find that position a new legal
doctrine, if you will. The law is the law. We can all have
opinions in terms of our understanding and interpretation of
the law.
And if what you are saying--and if we can agree, just for
the sake of discussion purposes, that waterboarding violates
not only American domestic law, but our international
obligations under the Convention of Torture, if there is an
opinion promulgated by the department, it insulates those who
actually perpetrated the act or even ordered the act to be
conducted.
Mr. Mukasey. The laws you are talking about are phrased in
general terms as to which there is a great deal of dispute,
some people lined up on one side, others lined up on another.
If it comes to pass that somebody at a later date finds
that the opinion should have been different from what it was,
the person who relied in good faith on what the person who
arrived later says was an erroneous determination is protected,
because to do otherwise would be to say to everybody out there,
``You can't rely on any----''
Mr. Delahunt. But is there legal precedent for that
statement that you just made to this Committee?
Mr. Mukasey. There is a practical consideration.
Mr. Delahunt. Okay. But there is not a legal precedent for
it?
Mr. Mukasey. I can't sit here and cite you a case.
Mr. Delahunt. Okay.
I yield back.
Mr. Conyers. The Chair recognizes Linda Sanchez, who is the
Chairperson of Subcommittee number five, Administrative Law.
Ms. Sanchez. Thank you, Mr. Chairman.
And thank you, Mr. Mukasey, for coming and indulging our
questions.
One month ago Chairman Conyers, Representative Pascrell and
I sent you a letter addressing our concerns about the growing
number of deferred and nonprosecution agreements pounded out by
Federal prosecutors.
To date, we have yet to receive a response from your
office. We discussed this personally on the phone yesterday.
But I just want to bring to your attention that that letter
highlighted a study that was conducted by Lawrence Finder and
Ryan McConnell, which found that the number of deferred and
nonprosecution agreements between the Department of Justice and
corporations had grown exponentially last year to 35 from just
five in the year 2003.
Having said that, that study in many ways is incomplete
because in fact there is no requirement to report these
agreements and therefore we are not even sure exactly how many
agreements between corporations and Federal prosecutors
actually exist.
I am curious in knowing when you will disclose to this
Committee all of the information relating to these agreements
that was requested in our letter of January 10th.
Mr. Mukasey. You are right, we discussed this yesterday,
and I am going to get back as promptly as I can with respect to
your letter.
I do want to stress, as we discussed yesterday, that the
increasing phenomenon of monitors is something that we noticed
well before there came to be publicity about it and have been
looking into it.
We have asked the Attorney General's Advisory Committee,
which is a group of United States attorneys from around the
country who can gather information from United States attorneys
about the prevalence of the phenomenon and whether there is a
way of coming up with best practices or guidelines----
Ms. Sanchez. But the question I am asking you is, when can
we expect to receive the information that we have requested in
the letter?
Mr. Mukasey. I can't give you a deadline. That is one of
the things we want to gather up, to figure out not only the
numbers, but what to do.
Ms. Sanchez. Okay.
Mr. Mukasey. And it is an outgrowth of increased
prosecution of corporations----
Ms. Sanchez. Let me ask you this. Do you support the full
disclosure by the Department of Justice of all deferred and
nonprosecution agreements prospectively in the future, moving
forward?
Mr. Mukasey. With respect, I would like to hear from the
Attorney General's Advisory Committee as to not only the
prevalence of the phenomenon, but whether confidentiality
agreements serve or disserve the larger interest in seeing to
it that wrongdoing is rooted out, that people who have to be
prosecuted, individuals that have to be prosecuted are, and
that unnecessary damage isn't done.
Ms. Sanchez. So, at this point----
Mr. Mukasey. I will try to get the information for you.
Ms. Sanchez. Okay. Now, attention to the issue of deferred
prosecution agreements came about, in part, because of the
actions of U.S. Attorney Christopher Christie.
In the process of deferring a prosecution, Mr. Christie
selected his past superior, former Attorney General John
Ashcroft, to serve as a Federal monitor and collect fees
reported to be in excess of $52 million.
I know that, during your testimony to the Senate Judiciary
Committee, you admitted deficiencies in the way that Federal
monitors are selected, and made the suggestion that, in the
future, Federal prosecutors may have to submit reports to the
department on the selection of those monitors.
Do you believe that a lack of guidelines on how independent
corporate monitors are selected has fostered the appearance of
cronyism, where U.S. attorneys can appoint their friends and
former superiors to those lucrative positions?
Mr. Mukasey. I think it is helpful to have the experience
of other U.S. attorneys, before a U.S. attorney embarks on a
course of conduct, be it the selection of a monitor or anything
else.
And without getting into labels like ``cronyism'' and so
on, I think it is useful to know what the best way is to go
about it, whether it involves the company in the process of
selecting from a group or what.
Ms. Sanchez. Let me ask you--do you think that the contract
that was awarded to Mr. Ashcroft was excessive?
Mr. Mukasey. I don't know the details of the contract that
Mr. Ashcroft has. And I would point out that the money that we
are talking about is not public money. This is money that comes
from the corporation. I know no other details.
Ms. Sanchez. One of the things that I am very deeply
concerned about, with respect to this particular issue, is the
lack of any judicial oversight in regard to deferred
prosecution agreements.
And I am going to give you, just, an example.
For example, if an individuals is charged with a crime and
agreed to a plea bargain with the prosecution, then that plea
must go before a judge who has the power to deny and, in some
cases, alter that agreement, based on judicial discretion.
However, with regard to deferred prosecution agreements
that are struck between Federal prosecutors and corporations,
neither party ever sees the inside of a courtroom, let alone
have to put these agreements before a judge.
So I am wondering if you concerned that this has created
two completely different systems of justice, one for
individuals, that is accountable to the judiciary, and another
for corporations, that is based entirely on the discretion of
Federal prosecutors.
Mr. Mukasey. All right. Prosecutors proceed under
guidelines that are very strictly set by the department, that
are very strictly reviewed by the department.
Ms. Sanchez. But there is no judicial review of those
deferred prosecutions--or am I mistaken on that?
Mr. Mukasey. I think you are not mistaken about the
question of whether all such agreements are reviewed.
Ms. Sanchez. Do you think it is generally good policy that
they would not be reviewed by a judge?
Mr. Mukasey. In order for an agreement to be ordered, it
would certainly have to be reviewed by a judge.
I think that the decision whether to charge or not charge
has always been an executive decision.
Ms. Sanchez. And yet----
Mr. Mukasey. And prosecutors reach those decisions in all
settings----
Ms. Sanchez. But yet----
Mr. Mukasey [continuing]. Regardless of whether they
involve nonprosecution agreements.
Ms. Sanchez. I see that my time has expired. I will submit
follow-up questions in writing. And I thank the Chairman for
his indulgence.
Mr. Conyers. The Chair is pleased to recognize the
gentleman from Tennessee, Steven Cohen.
Mr. Cohen. Thank you, Mr. Chairman, Mr. Mukasey.
I just want to follow up a little bit on what Mr. Wexler
asked you. You represent the United States of America. I know
that. But does that also include representing Congress in
certain circumstances?
Mr. Mukasey. It includes representing all interests that I
have to represent. I am not familiar with a situation in which
the Attorney General directly represented Congress. I am not
ruling it out.
Mr. Cohen. Well, in a contempt situation, would you not be
in essence representing the actions, the instructions of the
United States Congress, if they voted to cite somebody for
contempt?
Mr. Mukasey. In a contempt situation, if a contempt
prosecution goes forward, the statute says that it must go
forward. And so the Justice Department would be acting at the
direction of Congress to the extent it made a contempt finding
and directed that an action proceed.
Mr. Cohen. So if Congress does vote to cite Mr. Bolten and
Ms. Miers for contempt, you would prosecute them as the statute
requires.
Mr. Mukasey. I think what I said was there is a great deal
of authority that says that that prosecution cannot go forward
in response to a direction from the President that they not
comply with a subpoena.
Mr. Cohen. But if Congress does cite them, then Congress
has gone forward. And then you have got a different situation,
sir, I would submit to you.
You have got to make a Nicholas Katzenbach decision.
Mr. Mukasey. I am not familiar with the decision of
Nicholas Katzenbach that you are referring to.
Mr. Cohen. Remember when he showed some kind of moral
decision to not follow the orders of a President that were
improper?
Mr. Mukasey. The decision about whether to permit a senior
adviser to testify before Congress raises substantial issues of
separation of powers. And in response to an order that that not
go forward, I cannot envision going forward.
Mr. Cohen. So if Congress does vote to cite them for
contempt, you would not comply with the duties of your office
and prosecute that case, based on some other opinion you have
of Congress overreaching, in your opinion?
Mr. Mukasey. I will examine what happens when it happens.
But I would certainly not hold any hope or expectation that I
would act in contravention of a longstanding authority which
says that senior advisers to the President are not obligated
to--cannot be prosecuted for contempt in response to a
direction that they not appear--direction from the President.
Mr. Cohen. Is it that they shouldn't testify, or they
shouldn't appear?
Mr. Mukasey. Senior advisers?
Mr. Cohen. Yes, sir. Should they not testify or should they
not appear?
Mr. Mukasey. The latter, I believe.
Mr. Cohen. They shouldn't appear and, obviously, then not
testify?
Mr. Mukasey. I believe that is correct.
Mr. Cohen. Would you think it would be more appropriate to
appear or have a counsel appear?
Mr. Mukasey. My notion of propriety is something that, I
have said before and I will say again, I try to leave out of
it.
Mr. Cohen. But that is an action. If somebody does not even
appear, that is a separate action from not testifying. One
thing is asserting an immunity, and saying, ``I cannot testify
to that because I have an executive privilege.''
Another thing is the action of not even responding and
coming to the congressional Committee, and/or have somebody
come on your behalf. That is a separate action.
Do you think executive privilege goes so far as to say, you
don't have to appear and assert your privilege?
Mr. Mukasey. I understand the distinction. I believe that
the authority, with respect only to senior advisers to the
President, is that they not only need not testify; they need
not appear.
Mr. Cohen. Let me ask you this. Ms. Goodling said she went
beyond. And she had immunity. And she obviously did something.
You said something about immunity implies culpability, right?
And she got immunity when she testified here. And she said
she went too far.
What have you done to instruct your Justice Department not
to go too far and not to be political in whom you hire and whom
you use the honors program, in particular?
Mr. Mukasey. I have had, in conversations and public
pronouncements--being a very large number--in which I have made
it quite clear----
Mr. Cohen. Any memos?
Nothing in writing?
Mr. Mukasey. As I sit here, I can't--I will provide you
with any memos that embody that thought. There is plenty in
writing that embodies that thought.
Mr. Cohen. Let me ask you this. The drug war--we have had a
drug war for many years, going back to Nixon. It has been a
long time we have had drug wars.
We still have it. Obviously, we haven't--you would agree we
haven't necessarily won it; it is still going on, right?
Mr. Mukasey. I believe we continue to prosecute drug cases.
Mr. Cohen. What do you think we should do differently to
win the drug war and the scourge of meth, the scourge of crack
and cocaine, and drugs like that?
What can we do to win that war, or should we continue to do
what we have been doing, over the years?
What changes can you recommend?
Mr. Mukasey. We are changing our strategies in response to
the strategies of the people who are trying to sell this stuff.
We are cooperating with foreign governments to a degree
unprecedented in our history, most particularly with the
government of Mexico, which has extradited people in record
numbers and is experiencing enormous violence, as it constricts
the areas in which drug cartels can function.
And they have undertaken, literally, a life or death
struggle, in which they are helping us and we are trying to
help them.
Mr. Cohen. I was looking more----
Mr. Conyers. The gentleman's time has expired.
Mr. Cohen. Thank you, Mr. Chairman.
And thank you, Mr. Mukasey.
Mr. Conyers. The Chair recognizes Adam Schiff, the
distinguished gentleman from California and the former
assistant U.S. attorney.
Mr. Schiff. Mr. Attorney General, I appreciate your being
here. As a former member of the department, I am delighted that
there is new leadership at the department.
I am gravely concerned, though, about your testimony on the
torture issue, which I find murky, ambiguous, and which
establishes no bright line.
I am concerned about it for what it says to our own
personnel, and I am concerned about it for what it says to the
rest of the world.
And I think it will be very hard for you to make the
argument with other Nations, when our troops are captured on
the battlefield, that they cannot torture because we don't
torture.
I think our argument will be undermined by any ambiguity on
that subject here at home.
And I believe that the buck really stops with you, Mr.
Attorney General. I don't think that it can be delegated to a
relatively anonymous attorney at the Office of Legal Counsel to
decide what is lawful and what isn't lawful.
What I would like to ask you is the following. Shouldn't it
be the job of the Attorney General to investigate whether the
law has been violated, notwithstanding whether there is an
opinion by a lawyer at the DOJ that believes otherwise?
Shouldn't it be the responsibility of the Attorney General
to investigate whether the law has been broken?
And, if the law has been broken, then come before the
American people and say: The law was broken; people were
tortured in violation of the law; we have curtailed that
practice; and I am recommending either, A, that those
responsible be prosecuted or, B, that those responsible not be
prosecuted because they acted in good-faith reliance on an
opinion; or that they be prosecuted and the President consider
the power of the pardon.
But to abdicate, in my view, to say that, because of an
opinion of legal counsel, we don't need to investigate whether
the law was broken, seems to me a belittling of your
responsibility as Attorney General. And I wish you would
comment on that.
Mr. Mukasey. Generally, I have resisted requests to comment
on vast, unfocused questions.
Mr. Schiff. Well, let me focus the question. Why don't you
investigate whether the law was broken, and then make a
determination about whether prosecution is warranted, instead
of taking a position you are not even going to investigate
whether the law was broken?
Mr. Mukasey. The only signal for the conduct of such an
investigation is the disclosure that activity that some people
claim is illegal but is in fact the subject of an opinion,
namely that it was legal for inclusion in the CIA interrogation
program--that is the only signal for the opening of an
investigation.
That cannot signal the opening of an investigation without
telling people that they cannot rely on Justice Department
opinions.
Mr. Schiff. Mr. Mukasey, are you saying----
Mr. Mukasey. Also----
Mr. Schiff. Mr. Mukasey--because I have a limited amount of
time and I want to be very specific in my questions--are you
saying that, even if you believe that the law was violated, you
lack the power to open an investigation into that?
Mr. Mukasey. If I believe that a particular practice is
unlawful, then, if it is presented to me in concrete terms, I
can take steps to say that it is unlawful, going forward.
Mr. Schiff. But we are presenting----
Mr. Mukasey. But I----
Mr. Schiff. Mr. Attorney General----
Mr. Mukasey. One comment that you made that is very
portentous, and needs to be corrected, and that is the
suggestion that so much as a line of what I said endangers
American troops.
American troops fight in uniform----
Mr. Schiff. I understand that. I am not----
Mr. Attorney General, I am not trying to----
Mr. Mukasey. The Geneva Conventions----
Mr. Schiff. I am not--yes, but it is my time. I would like
to ask the question. And the Attorney General asked for a
specific question.
I am not, in any way, trying to make equivocal--or
equivalent--our troops in the field, and what Al Qaida is
doing. Don't even go there, Mr. Attorney General.
But what I am saying is, if we don't establish a bright
line, in this country, that we don't torture, then it makes it
very hard for us to argue to other countries that they
shouldn't torture our people, period.
And I would still like an answer to my question. Why
doesn't the Attorney General of the United States have the
power, notwithstanding a subordinate lawyer in the Office of
Legal Counsel, to investigate whether a crime has been
committed, if you believe that torture has been committed, in
violation of the law?
Why wouldn't you have the power to investigate that?
Mr. Mukasey. We have a bright line. We bar the torture. The
evaluation of whether a particular practice constitutes torture
could be presented to me only in a particular situation,
namely, whether it was defined, part of a proposed program, in
which case I would pronounce on it one way or the other, as I
think I----
Mr. Schiff. And you think that is a bright line that we can
hold up to the rest of the world, that it depends on whether it
is part of a program authorized by an attorney in the Office of
Legal Counsel?
Is that the standard we would ask the rest of the world to
hold up?
Mr. Mukasey. We have and do defend our position before the
rest of the world. We have people in the State Department who
do a superb job at that. And we will continue to do that.
Mr. Schiff. Does the definition of torture--if I can ask
one last question, Mr. Chairman?
You have said, in your Senate testimony, that--I believe--
that, if you were being waterboarded, you would consider it
torture.
Does the definition of torture depend on who is being
tortured or the circumstances in which they are being tortured?
Mr. Mukasey. I said, in my Senate testimony, that it would
seem like torture to me. I said that as part of a much larger
amount of testimony that indicated, I think, quite clearly,
that I would not use my own tastes and preferences as the basis
for arriving at a legal determination about whether a practice
that was actually put before me, in concrete terms, was or was
not torture.
Mr. Schiff. Are you taking the position, Mr. Attorney
General, that a practice which may be torture under certain
circumstances is not torture under others, because either the
information is desirable----
Mr. Conyers. The time of the gentleman has expired. You may
finish this question and get a response.
Mr. Schiff. Thank you, Mr. Chairman.
And the question is, are you taking the position that
whether something is torture or not depends on who is being
subjected to the technique and the desirability of the
information?
Does it vary, or is there simply one standard which is
governed by the nature of the coercion?
Mr. Mukasey. The question of torture turns on what is in
the torture statute, which does not speak, so far as I know, to
the nature of the information. It speaks to the intent of the
person imposing whatever it is that is claimed to be torture,
and depends on other circumstances.
Mr. Schiff. I would only say, that is not a bright line,
that I think any of us can apply.
Mr. Conyers. The gentleman's time has expired.
The Chair will call for a 5-minute recess.
[Recess.]
Mr. Conyers. The Committee will come to order.
The Chair recognizes Hank Johnson of Georgia.
Mr. Johnson. Thank you, Mr. Chairman.
Mr. Attorney General, it is good to have you here today.
The Web site, tpmmuckraker, which played an important role
in providing information to the public concerning the U.S.
attorney scandal, reveals that it has recently been removed
from the Department of Justice's press release e-mail
distribution list.
Has there been a change in the press release distribution
list since you have become Attorney General?
Mr. Mukasey. The short answer is I am not familiar with how
the distribution list of press releases is arrived at.
I do know that all the press releases that we issue are on
our Web site. So they should be generally available. But I am
not familiar with----
Mr. Johnson. Have there been any names, any organizations
taken off the list, to your knowledge, since you have become
Attorney General?
Mr. Mukasey. I do not know.
Mr. Johnson. So it was not you who made the decision to
take this Web site, tpmmuckraker, off of the press release
distribution list.
Mr. Mukasey. I was not aware of it until it was called to
my attention in a letter, I believe, from the Chairman.
Mr. Johnson. All right. Now, Mr. Attorney General, in your
Senate testimony, you stated that you would not declare water
boarding illegal because it would ``tell our enemies exactly
what they can expect.''
Attorney General, can you answer the following question?
Would it be lawful for an American interrogator to use the rack
and screws during a critical interrogation?
Mr. Mukasey. There is a line of hypotheticals that one
could go down that would get to an indication to an enemy about
what sort of thing we do and what sort of thing we don't do.
That is the reason and that is the only reason that I am
not going to get into hypotheticals about what might or might
not be permissible.
We have a classified program of interrogation that has gone
through OLC opinions, that have been permitted by OLC opinions,
and to which we adhere. Waterboarding was once part of that
program. It is no longer. And that is all I can say.
Mr. Johnson. Well, let me ask you this. Would the use----
Mr. Mukasey. People could go down the list of hypotheticals
involving matters that are----
Mr. Johnson. You would never say that any of these
strategies or interrogation techniques would be impermissible
under any standard. Let us say the use of the electric shock as
a harsh interrogation tactic. Would that ever be legal for us
to employ?
Mr. Mukasey. Once again, one could go down an entire list
of hypotheticals that would indicate what goes on one side of
the line and what goes on the other.
There are specific prohibitions against murder, rape, and
other matters that are the subject of specific legislation,
and, obviously, Congress could, if it chose, bar any specific
practice and make it unlawful.
We can go down a list of hypotheticals all afternoon.
Mr. Johnson. All right. Well, I won't do that, but I will
go at it from this standpoint.
Under what circumstances would it ever been permissible
under international law to interrogate a U.S. citizen, a
foreign--an enemy nation, to interrogate a U.S. citizen by
strapping the U.S. citizen to a board and suffocating him or
her with water, with the intent to create the fear of death?
When would that ever be permissible under international
law?
Mr. Mukasey. Once again, I am not going to go through a
list of hypotheticals of what might be permitted or might not
be permitted to us or anybody else, because to do so would
indicate the contours of what may or may not be permitted under
a program that is classified.
I understand that one can create an effect by doing that,
but I am not going to respond to it.
Mr. Johnson. And this classified program is not for the
eyes or ears of the Members of this Committee.
Mr. Mukasey. To my knowledge, it is, it has been for the
eyes and ears of the Intelligence Committee, which oversees the
CIA, which administers the program.
Mr. Johnson. Well, let me ask you about the investigation
of the abuse with respect to CIA tapes investigation.
Will you now expand the investigation into the CIA tapes
destruction to inquire into the legality of the underlying
interrogations?
Mr. Mukasey. The progress of the CIA tapes investigation is
entirely in the hands of the man who is conducting it, and that
is John Durham.
Mr. Johnson. And he is a man that was hand-selected by you.
He is a Department of Justice employee, career employee.
Mr. Mukasey. He is a career prosecutor who was hired and
compiled an enviable record long before I got here and is going
to be here long after I leave.
Mr. Johnson. What guarantees would the American public have
that Mr. Durham is not acting to please his employers, his
boss, which would be you?
Mr. Mukasey. John Durham, he doesn't report directly to me.
He reports, as do other U.S. attorneys, to the Deputy A.G., who
then reports up to me.
Mr. Conyers. The gentleman's time has expired.
You may finish your response, General Mukasey.
Mr. Mukasey. John Durham will do one of two things at the
end of his investigation. He will either bring charges, which
will necessarily be made public, or he will decline to bring
charges, which I can't imagine would not be made public.
Mr. Johnson. Thank you, Mr. Attorney General.
Mr. Conyers. The Chair recognizes Anthony Weiner, the
distinguished gentleman from New York.
Mr. Weiner. Thank you, Mr. Chairman.
Attorney General, welcome.
One of the most noteworthy things about your ascension to
Attorney General is, hopefully, it ends the partisanship and
the sense of politicization of the agency, and I think you
would agree that the agency, in Democratic and Republican
administrations alike, is populated by extraordinary
professional prosecutors and their support staff.
And it is very important that they are getting the message,
hopefully, from you, that while we might disagree on things
substantively and politically, the notion that the agency is on
a path to getting back to a place to where it is viewed as a
professional place, and there aren't political appointments
being made, is something that is laudable.
And I think the message should go out that--and it has, I
think, to your credit, that the days of political hiring are
behind us. That doesn't mean our investigation would end, but I
think it is important that that message be sent.
Mr. Attorney General, could I have your views on the COPS
program? Was it a success?
Mr. Mukasey. So far as I know, the COPS program has been a
success in that it--in places where it was used as it was
supposed to be used, i.e., as money that would encourage
localities or would give localities the opportunity to try out
certain configurations of their police force, would then be met
with funds from those localities when they found that that was
worthwhile.
To that extent, I believe it was successful.
Mr. Weiner. Was it a failure in any degree? What is your
sense of the--what scenario that it didn't succeed?
Mr. Mukasey. I don't know enough about it. I don't know of
any program that has ever succeeded completely nor do I have
any reason to believe that the COPS program was, in any sense,
larger or significantly small, even, a failure.
Mr. Weiner. The reason I ask this is there seems to be some
organizational schizophrenia within the Bush administration
about the program, but Attorney General Ashcroft, for example,
said it was one of the most important tools to drive down crime
during the period that crime precipitously dropped in this
country.
Democrats and Republicans alike, including the former
Chairman, we passed an authorization, the first time it
happened in a while, to the credit of the former leadership of
this Committee, in a bipartisan way, we passed. The President
signed it.
One of the things that he pointed to was the fact that the
COPS program was being re-funded.
And then we, year after year, open up the budget and the
folks at OMB zero out the program. And so it seems that there
is an internal debate going on within the Administration.
On one hand, there are people are like yourself and others
who have sat in that seat who have said the program is a
success, and then there are the precipitous drops in the
funding to the point where it is basically zero for the hiring
component now.
But would I put you in the camp with the President and John
Ashcroft to say that this is a program that we should try to
figure out ways to save or is this--or do you believe that the
zeroes that are in the budget reflect what the policy is now of
the Administration and believe the COPS program should be
allowed to expire?
Mr. Mukasey. I don't think I should be put to a choice
between one camp or the other camp when it comes to a specific
program. What I have tried to do and what I think others at the
department are trying to do is to approach the underlying
problem that is addressed by the COPS program and a whole lot
of others, including the Safe Streets program and a whole lot
of other programs, and that is to cut down crime and to
approach it in a coherent way.
When we fund a center that gathers gang information and
disseminates it to the local communities and thereby allows
them to meet that particular kind of crime, we act in a way
that, to a certain extent, diminishes the need for other----
Mr. Weiner. Yes, but you will forgive me. I don't know what
program the Justice Department can possibly implement that
diminishes the need for cops on the street, right? I mean, I
think people agree.
Are you familiar with the record of former Mayor Rudolph
Giuliani?
Mr. Mukasey. I am familiar with part of it. I am not an
expert on it.
Mr. Weiner. Are you familiar with the good parts? Not
talking about the bad parts.
Mr. Mukasey. I am familiar with some of the good parts and
some of the good parts of the record of his predecessor.
Mr. Weiner. The reason I mention it tongue in cheek is that
it was Mayor Giuliani, a Republican, who was successful in
driving down crime, credited the ability to do that with the
influx of Federal dollars that allowed about 7,000 additional
cops to be hired in New York City.
I don't think that Mayor Giuliani or Bill Clinton or your
predecessor would say that one program necessarily works alone,
but the fact of the matter is the Administration has said zero
dollars and zero cents would go to hiring police officers in
this budget.
And I am just trying to get a sense from you whether that
is something you are going to join us and to try to change or
whether you are going to be an advocate for that philosophy.
Mr. Mukasey. I am going to try to focus the money where it
can best be used. I agree that there are some realities of the
budgeting process that result in money not being provided for
in a budget, being put in by Congress and so on.
A lot of that is way beyond me, I am new to this, and, to a
certain extent, above my pay grade. That said, I agree that you
need cops to fight crime.
Mr. Weiner. And I thank you for being here. In case you
hadn't checked your initiation manual, you get one hearing to
say ``I am new here.'' So the next time, you will lose that
cover.
But thank you for your time.
Mr. Conyers. Thank you, sir.
The Chair is pleased to recognize Artur Davis, himself a
former assistant U.S. attorney, from Alabama.
Mr. Davis. Thank you, Mr. Chairman.
General Mukasey, welcome.
Let me, as we conclude today, let me turn to a subject that
has, frankly, not come up. It is the question of political
influence or possible political influence over prosecutions.
There have been three instances in the last year when this
Committee has received sworn testimony regarding the
possibility that there were political considerations brought to
bear around charging decisions by local U.S. attorneys.
In my state, I represent the state of Alabama, a woman, who
happens to be a Republican, testified under oath before the
Committee staff in private session and provided a sworn
affidavit to the Committee.
She alleged that she was present during a conversation in
which Republican political operatives discussed the viability
of prosecuting or the desirability of prosecuting the governor
of Alabama, whom they happened to be locked in a political
contest with.
She also said in her sworn testimony that she was told on
another occasion that the former deputy chief of staff to the
President, Mr. Rove, had contacted senior officials of the
Department of Justice and spoken about the desirability of
prosecuting the former governor of Alabama.
This Committee also heard sworn testimony from David
Iglesias, who is United States attorney in New Mexico, who
asserts that a Member of the United States Congress and a
Member of the United States Senate both contacted him to
inquire about the status of ongoing investigations and to
question whether sealed indictments might be unsealed in time
to shape the November 2006 elections.
And, finally, John McKay, formerly the United States
attorney in Seattle, Washington, testified before this
Committee that he received a phone call from the chief of staff
to a Member of Congress questioning about whether he, McKay,
intended to bring a particular prosecution.
I understand that you have not had an opportunity to make
an assessment of whether the claims are accurate or not, but I
want to pose this set of questions to you.
Can you think of any instance, based on your knowledge of
the law, in which it would be appropriate for a political
operative to urge that a U.S. Attorney prosecute someone?
Mr. Mukasey. I can't conceive of any circumstance in which
it would be appropriate for the U.S. attorney to have such a
conversation.
Mr. Davis. Can you conceive of any circumstance in which it
would be appropriate for a United States Senator to pick up the
telephone and ask a U.S. attorney about the status of an
investigation?
Mr. Mukasey. Once again, I can't conceive of any
circumstance in which it would be proper for the United States
attorney to respond to any inquiry from any political figure
about the bringing or the withholding of a prosecutor's
decision.
Mr. Davis. Can you think of any instance in which it would
be appropriate for the deputy chief of staff, who had no legal
counsel responsibilities under President Bush, can you think of
any circumstance in which it would be appropriate for that
individual to have contacted senior officials at the Department
of Justice to urge the prosecution of a former governor?
Mr. Mukasey. I have issued guideline with regard to
contacts----
Mr. Davis. Just answer that question as you answered the
others. Can you think of any instance of appropriateness
regarding that scenario?
Mr. Mukasey. There is a limited number of people, limited
to a very small number----
Mr. Davis. I understand that and I will get that, but just
so we can follow the line of questions, can you think of any
instance in which it would be appropriate for a deputy chief of
staff to inquire of a senior official about the status of a
case?
Mr. Mukasey. I can't think of a circumstance in which it
would be appropriate for a senior official to respond to an
inquiry of that sort with information about whether a
prosecution is going forward or not going forward.
Mr. Davis. So given those statements, General, given that
the allegations have been made under oath before the Committee
in all three instances, the first question, how much would it
concern you if all three of these sworn statements were true?
Mr. Mukasey. I can't quantify my level of concern. What I
can tell you----
Mr. Davis. Would it be a high level of concern?
Mr. Mukasey. I don't think that it is appropriate for
United States attorneys to be talking to political people
about----
Mr. Davis. So given that--and I am pushing you because our
time is limited. Given that, what steps have you taken to
determine whether the claims of the Alabama lawyer or Mr.
Iglesias or Mr. McKay are accurate?
Mr. Mukasey. The case involving the Alabama lawyer is, I
believe, sub judice before a circuit court and----
Mr. Davis. But you understand that that is not a subject of
the appeal. That is in no way the subject of what is being
raised in the appeal.
The question of whether there were improper contacts----
Mr. Mukasey. That is an interesting point, because as far
as I know, there has been no request for a remand.
Mr. Davis. Well, but what I am asking you, sir--if I can
just have an answer to my question, Mr. Chairman.
What steps have you taken in any of those three instances
to determine whether or not the--because you have stated that
all three would raise serious concern. You have stated that all
three, if so, would be improper.
As the current Attorney General, what steps have you taken
to see if these improprieties, in fact, happened, sir?
Mr. Mukasey. I have limited myself to the participation of
the people on the other end of the telephone calls, and I have
not made direct inquiry as to whether those instances occurred
or what those responses were.
I have made clear----
Mr. Davis. Given your concerns, why not?
Mr. Mukasey. I have made clear to the department that it is
not proper for anybody----
Mr. Davis. But if it happened in the past, General--if he
can answer my question, Mr. Chairman.
Given that this may have happened in the past, given the
allegations that have been made under oath before this
Committee in public and private testimony, given that two of
those allegations have been repeated before the U.S. Senate,
given that you think it is inappropriate that these events
happened, what steps have you taken to determine whether or not
they occurred?
Mr. Mukasey. If any impropriety or any lapse of proper
standards was engaged in by any United States attorney, that
would be a subject initially for the Office of Professional
Responsibility.
Mr. Davis. Has the OPR conducted an investigation?
Mr. Conyers. The gentleman's time has expired.
Before we conclude this hearing, General Mukasey, on behalf
of the Committee, I express our deep appreciation of your first
appearance. It has been a lengthy one. I can assure you that
the next one will not be as long, but it will be as equally
important.
We are going to go through the record and examine, each of
the more than 30 Members, what they want to focus on next time.
It seems to me that because of the importance of your work
and our responsibility, that if there are ways that we can
advise you of the areas that we want to work in before you get
here, so that this isn't some kind of a pop quiz, we think that
it would be more productive for all of us.
And in that spirit, I thank you not only for what you have
done and your cooperation, but what we have to do the rest of
the year.
Ms. Jackson Lee. Mr. Chairman, may I put a unanimous
consent request in the record?
Mr. Conyers. We would like to continue this relationship
and I would also like to give, without objection, every Member
5 legislative days to add anything they wish to the record, as
well as you.
So I yield to the gentlelady from Texas for a unanimous
consent request.
Ms. Jackson Lee. I thank the gentleman.
I want to put into the record a letter to the Attorney
General regarding the status of the DNA lab in Harris County
and the district attorney's office, and a letter regarding the
treatment of imams at the Nation's airports and H.R. 4545.
Mr. Conyers. Without objection, so ordered.
And the Committee is adjourned.
[Whereupon, at 3:21 p.m., the Committee was adjourned.]
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
Mr. Chairman, thank you for your leadership in convening today's
very important hearing on the oversight of the Department of Justice. I
would also like to thank the ranking member the Honorable Lamar S.
Smith, and welcome our extremely distinguished witness, the Attorney
General of the United States, the Honorable Michael Mukasey. Welcome
Mr. Attorney General.
In addition to holding the seat of my hero, role model, and
predecessor, the incomparable Barbara Jordan, one of the reasons that I
have been so proud to be a member of the Committee on the Judiciary
throughout my six terms in Congress is that this Committee has
oversight jurisdiction over the Department of Justice, which I have
always regarded as the crown jewel of the Executive Branch.
In recent years the reputation of that Department, which has done
so much to advance the cause of justice and equality for all Americans,
has been tarnished. And that is putting it charitably. This Committee
has no greater challenge and obligation to the nation than to help
restore the Department of Justice to its former greatness.
Anyone who has observed this Committee over the years knows that I
have a deep and abiding passion about the subjects within its
jurisdiction: separation of powers, due process, equal justice, habeas
corpus, juvenile justice, civil liberties, antitrust, and intellectual
property. But, Mr. Chairman, today I wish to focus on the record and
performance of the Department of Justice in five areas: (1) the
Department's civil rights record; (2) the on-going investigation into
the firing of the 8 United States Attorneys in December 2006; (3) the
CIA's destruction of tapes recording terrorist suspect interrogations;
(4) the enforcement of U.S. federal laws to protect U.S. contractors in
Iraq; and (5) the various cuts in the 2009 fiscal year budget. Allow me
to describe my substantial concerns and the responses I hope to hear
from the Attorney General.
CIVIL RIGHTS ENFORCEMENT
Mr. Chairman, the Department of Justice is the nation's largest law
enforcement agency and it is no exaggeration to state that its Civil
Rights Division used to be the nation's largest civil rights legal
organization. It wields the authority and the resources of the federal
government on difficult and complex issues and has helped bring about
some of the greatest advances for civil rights. However, the
Department's record under this Administration indicates that it is not
living up to its tradition of fighting for equal justice under law.
The Bush administration has abdicated its responsibility to enforce
the nation's most critical laws. Since January 20, 2001, the Bush
Administration has filed 46 Title VII cases, an average of
approximately 6 cases per year. In contrast, the prior Administration
filed 34 cases in its first two years in office alone, and 92 in all,
for an average of more 11 cases per year.
Furthermore, upon examining the types of cases prosecuted by the
Department, an even more disturbing fact is revealed, the failure of
the Department to bring suits that allege discrimination against
African-Americans. According to CRS statistics from May 2007, there
were 32 Title VII cases brought by the Bush Administration. Of those, 9
were pattern or practice cases, 5 of which raised allegations of race
discrimination but only one case--1 case--involved discrimination
against African Americans. In contrast, the Clinton Administration
filed 13 pattern or practice cases, 8 of which involved racial
discrimination.
The record is not much better when it comes to the subject of
voting rights enforcement. After six years, the Bush Administration has
brought fewer Section 2 cases, and brought them at a significantly
lower rate, than any other administration since 1982.
The Voting Section filed a total of 33 involving vote dilution and/
or other types of Section 2 claims during the 77 months of the Reagan
Administration that followed the 1982 amendment of Section 2. Eight (8)
were filed during the 48 months of the first Bush Administration and 34
were filed during the 96 months of the Clinton Administration. To date,
only 11 have been filed so far during the present Bush Administration.
Additionally, Mr. Chairman, most of the Department's major voting-
related actions during this Administration have been beneficial to the
Republican Party, including two in Georgia, one in Mississippi and the
infamous redistricting plan in Texas, which the Supreme Court struck
down in part. For years we have heard stories of current and former
lawyers in the Civil Rights Division alleging that political appointees
continually overruled their decisions and exerted undue political
influence over voting rights cases. Indeed, one-third of the Civil
Rights Division lawyers have left the department and the remaining
lawyers have been barred from making recommendations in major voting
rights cases.
Mr. Chairman, the Justice Department's recent record is deplorable
when it comes to enforcement of the federal criminal civil rights law.
According to an analysis of Justice Department data by the Seattle
Post-Intelligencer, civil rights enforcement no longer appears to be a
top departmental priority. An analysis of the data reveals that,
between 2001 and 2005, the number of federal investigations targeting
abusive police officers declined by 66 percent and investigations of
cross-burners and other purveyors of hate declined by 60 percent.
It appears that this downward trend accelerated after the tragic
events of 9/11. While there has been a slight increase in enforcement
related to human trafficking, which is classified under civil rights,
not enough has been done to stop the overall slide.
I am very troubled by this trend. Hate-crimes are too dangerous to
ignore, and there is social value in effective federal review of police
misconduct. There has been an increase in hate crimes recently,
especially with the placement of nooses in public places to instill
fear in the hearts and minds of many Americans.
I am also troubled by the recent ``Jena Six'' case where six black
youths attending Jena High School in Jena, Louisiana were arrested and
some were initially prosecuted as adults in response to several fights
that ensued following white students' hanging a noose on school
grounds. Although black students were arrested and jailed, no white
students were ever arrested in connection with the incidents. As you
will recall, I worked tirelessly with civil rights activists such as
Reverend Jesse Jackson and Reverend Al Sharpton to ensure that the
Department play its role in ensuring that Justice is wrought. I implore
the Attorney General to continue to conduct an investigation into this
matter and to make the Department's findings a matter of public record.
Since the Jena 6 incident, there have been numerous high profile
incidents of noose hangings, including one found in a black Coast
Guard's bag, one on a Maryland college campus, and on the office door
of a black professor at Columbia University in New York, just to name a
few. Equally astonishing is the fact that there is no federal
application of hate crimes law to noose hangings. I am anxious to hear
the Attorney General's responses to these serious problems.
TEXAS JUVENILE AND OTHER CORRECTIONS FACILITIES
Mr. Chairman, another area of concern that I wish to discuss
concern the care and protection of juvenile offenders in state
correctional facilities and the care and safety of those being held in
custody in county and municipal jails in Texas and around the country.
In my home state of Texas, certain administrators and officials,
past and maybe current, of the Texas Youth Commission (TYC) have
obviously neglected their duties. According to published reports and
investigations, several TYC administrators abused their authority by
pulling young boys out of their dorm rooms and classrooms and sexually
molesting them. The allegations of abuse have been a matter of public
record since 2000. In 2005, an investigation conducted by the Texas
Rangers revealed that employees of the juvenile facility in Pyote,
Texas, had repeated sexual contact with juvenile inmates.
Additionally, several members of the TYC board, who are responsible
for the oversight of TYC facilities, admit that they were aware of the
finding in the report prepared by Texas Rangers but took no corrective
action. The current scandal surrounding TYC is scandalous and
outrageous; quite frankly it sickens me. The situation within the TYC
disregards every notion of justice and will contribute to the rise of
recidivism rates if it is not arrested immediately.
Let me turn to another horrifying area of inmate abuse. Between
January 2001 and January 2006, at least 101 persons, an average of
about 17 a year, have died while in the custody of the Harris County
Jail, located in Houston, Texas. In 2006 alone there were 22 deaths. I
find it especially disturbing that of the 101 deaths, at least 72 of
the inmates were awaiting court hearings and had yet to be convicted of
the crimes for which they were taken into custody.
In our system every accused person is entitled to life, liberty,
and the pursuit of happiness, and a presumption of innocence. These 72
individuals, however, were deprived of their life without the due
process guaranteed by the Constitution. They will not ever receive
their day in court to be judged by their peers because of the
irresponsibility, incompetence, indifference, and perhaps the criminal
neglect, of the jail officials to whose care they were entrusted.
I believe the situation in the Harris County Jail System requires
national attention. When it is alleged that inmates are sleeping on the
floor next to toilets and denied basic medical care, something must be
done. The conditions at these jails border on cruel and unusual
punishment. Should fault or wrongdoing be found, the persons
responsible should be held accountable. Seeing that such authorities
are held accountable is ultimately the responsibility of the United
States Department of Justice. I am interested to hear the Attorney
General's views on these matters.
U.S. ATTORNEY FIRINGS
Mr. Chairman, I would also like to discuss the issue of the on-
going investigation into the U.S. attorney firings in 2006. We have
found that it is rare for a United States Attorney to prematurely end
his or her four-year term of appointment. According to the
Congressional Research Service, only 54 United States Attorneys between
1981 and 2006 did not complete their four-year terms. It has now been
confirmed that at least eight United States Attorneys were asked to
leave the Department in December 2006.
On March 6, 2007, the Subcommittee on Commercial and Administrative
Law held a hearing entitled, ``H.R. 580, Restoring Checks and Balances
in the Confirmation Process of United States Attorneys.'' Witnesses at
the hearing included six of the eight former United States Attorneys
and William Moschella, Principal Associate Deputy Attorney General,
among other witnesses.
Six former United States Attorneys testified that he or she was not
told in advance why he or she was being asked to resign. Upon further
inquiry, however, several of the terminated U.S. attorneys were advised
by the then Acting Assistant Attorney General William Mercer that they
were terminated essentially to make way for other Republicans to
enhance their credential and pad their resumes.
It is now clear that the manifest intention of the proponents of
the provision in the USA PATRIOT ACT Reauthorization regarding the
appointment of interim U.S. Attorneys was to allow interim appointees
to serve indefinitely and to circumvent Senate confirmation.
We now know that after gaining this increased authority to appoint
interim U.S. Attorneys indefinitely, the Administration has exploited
the provision to fire U.S. Attorneys for political reasons. A mass
purge of this sort is unprecedented in recent history. The Department
of Justice and the White House coordinated this purge. The purge was
conducted based in large part on whether the U.S. Attorney
``exhibit[ed] loyalty to the President and Attorney General.''
Mr. Chairman, the office of the United States Attorney
traditionally operated with an unusual level of independence from the
Justice Department in a broad range of daily activities. The practice
that was in place for less than two years needed to end. That is why I
was proud to have voted for its repeal and the restoration of the
status quo ante. Mr. Attorney General, I welcome your views on the
investigation into the US attorney firings and your views on the
Department's political independence from the Administration.
DESTRUCTION OF CIA INTERROGATION TAPES
Mr. Chairman, I am extremely concerned by the recent revelation
that tapes of CIA interrogations have been destroyed, and the reports
this week that the CIA has engaged in the practice of waterboarding.
There are media reports that at least four top White House lawyers
were involved in the discussions within the CIA about the destruction
of these tapes, which depict the interrogation of prisoners by U.S.
intelligence agents, raise crucial questions about possible
criminality, violation of federal laws and international treaties, and
obstruction of justice. I am extremely concerned by the implications of
these criminal allegations, as well as our oversight responsibilities,
as a Congress, to properly investigate this case and to ensure that
similar events do not occur in the future.
In early December, media reports indicated that, in 2005, the CIA
destroyed at least two videotapes. The tapes in question are known to
have documented the interrogation of two senior al-Qaeda operatives in
CIA custody. According to reports, the tapes showed CIA agents
subjecting terrorism suspects to severe interrogation techniques,
including the controversial practice of waterboarding. After the
destruction of the tapes was revealed, CIA director General Michael
Hayden stated that the decision to destroy them was made ``within the
CIA,'' to protect the safety of undercover officers. According to
current and former intelligence officials, the decision is ultimately
attributable to Jose Rodriguez, Jr., who was head of the Directorate of
Operations.
Mr. Chairman, the 2005 destruction of these tapes came in the midst
of Congressional scrutiny of the CIA's detention and interrogation
programs. This raises significant concerns about whether the CIA
withheld information from Congress, as well as other entities including
the federal courts and the September 11th Commission. It has been
suggested that the tapes were destroyed in order to eliminate evidence
of potentially criminal activity. In light of the controversy, the
Department of Justice initiated an investigation, and, on December
14th, moved to delay Congressional inquiries into the CIA's destruction
of the tapes, stating that such a parallel investigation would
jeopardize the Department's efforts to investigate the issue.
Mr. Chairman, the Department of Justice itself, having offered
legal advice relating to the destruction of the tapes, could be
implicated in this investigation. In addition, at least four top White
House lawyers--Alberto Gonzales, David S. Addington, John Bellinger
III, and Harriet Miers--were involved in discussions regarding the
tapes in question. The destruction of the tapes has raised concerns
about both the possibility that the tapes documented unlawful conduct
and that their destruction was itself unlawful.
Mr. Chairman, since 9/11, this Administration has consistently
questioned the applicability of the Geneva Conventions and the
Convention Against Torture to the war on al-Qaeda. While I certainly
believe in the necessity of protecting the United States from potential
future terrorist attacks, I firmly believe that these international
conventions and agreements are not optional; they can not be applied
only when it is convenient for the Bush Administration. If the United
States is to truly be a leader in promoting human rights and the rule
of law, it must apply these standards to its own policies and
practices.
In the Supreme Court case Hamdan v. Rumsfeld, the Court held that
Article 3 of the Geneva Conventions does apply to the conflict with al-
Qaeda, contrary to numerous assertions to the contrary made by the Bush
Administration. The United States has long-since ratified all four
Geneva Conventions, all of which contain Article 3, which prohibits,
among other things, ``cruel treatment and torture,'' ``outrages upon
personal dignity,'' and ``humiliating and degrading treatment'' of
prisoners or civilians during armed conflict. Either we must apply the
same standards to our own conduct, or else risk the likelihood that
other nations will not adhere to these standards when detaining and
interrogating our citizens.
Mr. Chairman, all detainees must be treated in accordance with
international law as well as the U.S. Constitution, under which we all
serve. The United States must not make those practices, long the staple
of abhorred foreign dictators, part of its own interrogation arsenal.
While torture is expressly prohibited by international and domestic
law, the Administration has consistently sought to circumvent such
restrictions, citing the necessity of the situation and seeking to
narrowly define torture.
In addition to possible illegal conduct portrayed on the tapes, the
destruction of the tapes has raised separate legal concerns. Title 18,
United States Code, Section 1512 (c)(1) and (2) establishes the
illegality of tampering with a record ``with the intent to impair the
object's integrity or availability to use in an official proceeding.''
The official proceeding need not be actually pending at the time of the
acts of obstruction, though it must be foreseeable.
Mr. Chairman, I believe it is our responsibility, as the
representatives of the American people, the guardians of the
Constitution, and the bastion of America's civil liberties, to be
unwavering in our commitment to preserving the rights of the American
people and American way of life. I firmly believe that acts of torture
represent a grave breach of American values.
ENFORCEMENT OF U.S. FEDERAL LAWS TO PROTECT U.S. CONTRACTORS IN IRAQ
In December 2007, the Crime Subcommittee held a hearing in December
on the enforcement of U.S. federal criminal laws to protect U.S.
contractors in Iraq. The hearing was held to address the rape of Jamie
Leigh Jones by U.S. contractors employed by KBR/Haliburton. The
Department sent no witnesses to the hearing because it indicated that
it was investigating the matter and has failed to respond to several
letters issued by the Committee in January.
Jamie Leigh Jones, from my hometown of Houston, Texas, testified
that in July 2005, she was approximately 20 years old, and was on a
contract assignment in Iraq for KBR/Haliburton, when her fellow male
contractors drugged, imprisoned, and repeatedly gang-raped her.
The Department has brought no criminal action against the alleged
assailants. Despite claims to the contrary Title 18, Part I, Chapter 1,
Section 7, of the United States Code, entitled ``Special maritime and
territorial jurisdiction of the United States defined,'' the United
States has jurisdiction over the following: ``any place outside the
jurisdiction of any nation with respect to an offense by or against a
national of the United States'' does allow for the Department to
prosecute Ms. Jones's alleged assailants.
Mr. Chairman, I call for a complete and entirely transparent
investigation into the recent discovery of the destruction of the CIA
tapes, and we must fully investigate all incidents of suspected torture
by U.S. officials and agents.
FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA)
Chairman, this year this Committee examined legislation that was
intended to fill a gap in the Nation's intelligence gathering
capabilities identified by the Director of National Intelligence Mike
McConnell, by amending the Foreign Intelligence Surveillance Act, FISA.
But in reality it eviscerates the Fourth Amendment of the Constitution
and represents an unwarranted transfer of power from the courts to the
Executive Branch and the Attorney General.
I am aware of the delicate balance that the Department must tread
in protecting homeland security and in affording Americans their full
and unfettered rights under the Bill of Rights. The original law
protected the civil liberties of all Americans while also granting the
President the tools needed to conduct an aggressive campaign against
terror. FISA does not make American any safer--rather it allows the
Government to pursue an enormous and untargeted collection of
international communications without court order or meaningful
oversight by either Congress or the courts. As such the recent
legislation requesting an extension of FISA is an affront to our values
and consequently, the bill must be allowed to die rather than be
extended for one more day. These revisions of FISA legislation should
not be supported for several reasons.
First, it allows the Attorney General to issue program warrants in
international calls without court review. This removes the FISA court,
which has overseen the process for 30 years and instead places the
Attorney General in charge of determining the legitimacy of
surveillance.
Secondly, it includes no provisions to prevent ``reverse
targeting,'' the practice whereby surveillance is conducted on a
foreign person to hear their conversations with person in the United
States who is the actual target. Under the FISA amendments, these
conversations can be heard, recorded and stored without warrant.
Lastly, the FISA amendment reduces the oversight capabilities of
Congress by requiring the Attorney General to provide Congress only the
information the Justice Department sees fit to report. This removes an
important check upon America's surveillance program.
Because I recognize that there is a delicate balance between
legitimate intelligence needs and the civil rights of American
citizens, I was proud to support the RESTORE Act, passed by this House
in mid-2007. Mr. Chairman the Jackson-Lee Amendment added during the
markup made a constructive addition to the RESTORE Act by laying down a
clear, objective criterion for the Administration to follow and the
FISA court to enforce in preventing ``reverse targeting.'' ``Reverse
targeting'' is the practice where the government targets foreigners
without a warrant while its actual purpose is to collect information on
certain U.S. persons. I introduced the Jackson-Lee Amendment to
eliminate the reverse targeting by requiring the Administration to
obtain a regular, individualized FISA warrant whenever the ``real''
target of the surveillance is a person in the United States. It is
imperative that the rights enshrined in the Bill of Rights be given
effect. Mr. Attorney General, I welcome your comments on this issue.
THE 2009 FISCAL YEAR BUDGET
Mr. Chairman, the third and final area I wish to discuss concern
the reductions in the 2009 fiscal year budget. A review of the
Administration's FY 2009 budget reveals drastic cuts to state and local
law enforcement. The Administration has requested a total of $404
million where Congress last year appropriated over $1.7 billion
dollars. This is particularly distressing given that violent crime
increased in 2005 and 2006 for the first time in a decade, which many
believe are a consequence of similar cuts the President proposed in the
past. President Bush's budget eliminates critical anti-crime and anti-
terrorism funding for local law enforcement. The Bush budget cuts $137
million from aid to states and localities for bioterrorism
preparedness. Additionally, President Bush did not ask for any funding
for the Edward Byrne Memorial Justice Assistance Grant program, nor for
the Clinton-era Community Oriented Policing Services (COPS) program,
among others. The Byrne program received $175 million in fiscal 2008;
COPS received $251 million. These cuts will further erode the ability
of state and local government to fight crime at a time when states are
dealing with budget crises. Prevention and control of crime is critical
to ensuring the strength and vitality of our Nation.
I am interested to hear the Attorney General's views on these
matters. Again, thank you Mr. Chairman for holding this hearing. I
yield the remainder of my time.
Prepared Statement of the Honorable Darrell Issa, a Representative in
Congress from the State of California, and Member, Committee on the
Judiciary
Thank you, Mr. Chairman. I appreciate this opportunity to hear from
Attorney General Michael Mukasey regarding his vision for the
Department of Justice and the state of the Department which he
inherited.
I frequently took opportunities such as this hearing to question
Attorney General Mukasey's predecessors on the need for increased
prosecution of human smugglers and other criminal aliens. I have
encouraged the President, multiple attorney generals, and the U.S.
Attorney for the Southern District of California for years to prosecute
more ``coyotes'' and criminal aliens. I have also sought and won
appropriations specifically for this purpose.
I am heartened to read in Attorney General Mukasey's testimony that
the President's budget includes $7,000,000 for this purpose, and that
these funds will be used in part to fund 40 additional U.S. Attorneys
in border districts. ``Coyotes'' and other criminal aliens are some of
the most dangerous individuals in the United States, and it is terribly
important to confront them head on.
I look forward to hearing from Attorney General Mukasey on how the
Department of Justice will continue down the path of increased criminal
alien related prosecutions under his lead, as well as the myriad of
other issues within the Department's jurisdiction.
Prepared Statement of the Honorable Steve Cohen, a Representative in
Congress from the State of Tennessee, and Member, Committee on the
Judiciary
The last year has brought to light numerous abuses at the
Department of Justice (DOJ). From the suspicious terminations of nine
U.S. Attorneys to evidence of possibly politically motivated
prosecutions, the politicization of the hiring process for career DOJ
attorneys, the sharp decline in civil rights enforcement, and the
revelation of the existence of secret legal memoranda justifying the
use of torture, the DOJ reached a low point in its history and ended
2007 with its reputation for professionalism and integrity tarnished.
With a change in the leadership of the DOJ, I hoped that these abuses
would be properly addressed.
I am appreciative of Attorney General Michael Mukasey's stated
intention to establish a more cooperative relationship between the DOJ
and Congress. I also recognize that he has taken some positive steps
towards reducing the risk of politicization of federal law enforcement,
including instituting guidelines that limit contact between DOJ and
White House officials concerning ongoing Prepared Statement of the
Honorable Steve Cohen, a Representative in Congress from the State of
Tennessee, and Member, Committee on the Judiciarycivil and criminal
investigations. Nonetheless, many questions remain concerning the DOJ's
role in justifying the use of harsh interrogation techniques that I
believe amount to torture, its continued defense of overweening
executive authority, and its level of cooperation with ongoing
Congressional and internal investigations of its conduct. I call upon
Attorney General Mukasey to be forthcoming on these issues.
Letters dated February 7, 2008, from the Honorable Sheila Jackson Lee
to the Honorable Michael B. Mukasey, Attorney General of the United
States
H.R. 4545, ``A bill to target cocaine kingpins and address sentencing
disparity between crack and powder cocaine''
Letter dated January 31, 2008, from the Honorable John Conyers, Jr. to
the Honorable Michael B. Mukasey, Attorney General of the United States
Post-Hearing Questions posed by the Honorable John Conyers, Jr., the
Honorable Robert C. ``Bobby'' Scott, the Honorable Linda T. Sanchez,
the Honorable Keith Ellison, and the Honorable Robert Goodlatte to the
Honorable Michael B. Mukasey, Attorney General of the United States
Letter dated June 2, 2008, from Keith B. Nelson, Principal Deputy
Assistant Attorney General, Office of Legislative Affairs, U.S.
Department of Justice, providing documents in response to post-hearing
questions posed by the Honorable Robert C. ``Bobby'' Scott \1\
--------
Note: Due to its volume, the document production is not printed in the
hearing record but is on file with the House Committee on the Judiciary
Answers to Post-Hearing Questions provided by the
U.S. Department of Justice, dated July 16, 2008
Answers to Post-Hearing Questions provided by the
U.S. Department of Justice, dated July 18, 2008