[Senate Hearing 111-851]
[From the U.S. Government Publishing Office]
S. Hrg. 111-851
NOMINATION OF JAMES MICHAEL COLE, NOMINEE TO BE DEPUTY ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
JUNE 15, 2010
__________
Serial No. J-111-116
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
ARLEN SPECTER, Pennsylvania JON KYL, Arizona
CHARLES E. SCHUMER, New York LINDSEY GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland TOM COBURN, Oklahoma
SHELDON WHITEHOUSE, Rhode Island
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
AL FRANKEN, Minnesota
Bruce A. Cohen, Chief Counsel and Staff Director
Matt Miner, Republican Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Cardin, Hon. Benjamin L., a U.S. Senator from the State of
Maryland....................................................... 5
prepared statement........................................... 166
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 185
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 2
WITNESSES
Danforth, Hon. John C., former U.S. Senator from the State of
Missouri....................................................... 6
STATEMENT OF NOMINEE
Cole, James Michael, Nominee to be Deputy Attorney General, U.S.
Department of Justice.......................................... 8
Questionnaire................................................ 10
QUESTIONS AND ANSWERS
Responses of James Michael Cole to questions submitted by
Senators Leahy, Whitehouse, Sessions, Grassley and Coburn...... 120
SUBMISSIONS FOR THE RECORD
Cannon, W. Stephen, Constantine/Cannon, Attorney at Law,
Washington, DC, letter......................................... 164
Cole, James M., Nominee to be Deputy Attorney General, U.S.
Department of Justice, statement............................... 169
Danforth, Hon. John C., former U.S. Senator from the State of
Missour, prepared statement and letter......................... 174
Department of Justice, John D. Ashcroft, Attorney General,
William P. Barr, Attorney General, Benjamin R. Civiletti,
Attorney General, James B. Comey, Deputy Attorney General, Mark
R. Filip, Deputy Attorney General, Alberto R. Gonzales,
Attorney General, Jamie S. Gorelick, Attorney General, Jo Ann
Harris, Assistant Attorney General, Criminal Division, Philip
B. Heymann, Deputy Attorney General, Paul J. McNulty, Deputy
Attorney General, Craig S. Morfore, Acting Deputy Attorney
General, Michael B. Mukasey, Attorney General, David W. Ogden,
Deputy Attorney General, Janet W. Reno, Attorney General, James
K. Robinson, Assistant Attorney General Criminal Division,
George J. Terwilliger III, Deputy Attorney General, Larry D.
Thompson, Deputy Attorney General, Washington, DC, joint letter 178
Gorelick, Jamie S., WilmerHale, Washington DC, letter............ 180
Howard, Roscoe C., Jr., Attorney, Andrews Kurth LLP, Washington,
DC, letter..................................................... 181
Jeffress, William H., Jr., Baker Botts LLP, Washington, DC,
letter......................................................... 183
Little, Rory K., Professor of Law, U.C. Hastings College of the
Law, San Francisco, California; Bruce A. Green, Louis Stein
Professor of Law, Fordham University School of Law, New York,
New York; Charles J. Ogletree, Jesse Climenko Professor of Law,
Harvard Law School, Cambridge, Massachusetts; Andrew Taslitz,
Professor of Law, Howard University School of Law, Washington,
DC; Ronald Goldstock, Adjunct Professor of Law, Cornell,
Columbia and NYIU Law Schools, Larchmont, New York; Myrna S.
Raeder, Professor of Law, Southwestern Law School, Los Angeles,
California; Ellen Yaroshefsky, Clinical Professor of Law,
Cardozo University, New York, New York, joint letter........... 187
Madigan, Michael J., Orrick, Herrington & Sutcliffe LLP, Columbia
Center, Washington, DC, letter................................. 189
Marcus, Martin, Chair, Criminal Justice Standards Committee,
America Bar Association; Mark Dwyer, New York, New York; Nancy
King, Nashville, Tennessee; Robert McWhirter, Phoeniz, Arizona;
Cheryl Jacobe, Baltimore, Maryland; Albert Krieger, Miami,
Florida; John Wesley Hall, Little Rock, Alaska; Matthew, Redle,
Sheridan, Wyoming; Margaret Colgate Love, Washington, DC, joint
letter......................................................... 190
Noble, Ronald K., International Criminal Police Organization,
France, letter................................................. 192
Oliver, Jack L., Ryan Cove LLP; St. Louis, Missouri, letter...... 194
Cynthia Eva Hujar Orr, President National Association of Criminal
Defense Lawyers and Christopher D. Chiles, President, National
District Attorneys Association, joint letter................... 195
Rosen, Chuck, Partner, Hogan Lovells, Washington, DC, letter..... 197
Rosenberg, Harry, Phelps Dunbar LLP, Counselors at Law, New
Orleans, Louisiana, letter..................................... 198
Ross, Steve, Akin Grump Strauss Hauer & Feld LLP, Attorneys at
Law, Washington DC, letter..................................... 200
Saltzburg, Stephen A., Wallace and Beverly Woodbury, University
Professor of Law, Bruce A. Green, Professor, Washington, DC;
Charles Joseph Hynes, Prosecutor, New York; Anthony Joseph,
Defense Counsel, Alabama, Stephen A. Saltzburg (Professor) DC;
Robert Johnson, Prosecutor, Minnesota; Michael S. Pasano,
Defense Counsel, Florida; Catherine Anderson, Retired Judge;
Ronald C. Martin, II, Prosecutor, Massachusetts; Bruce Lyons,
Defense Counsel, Florida; Myrna S. Raeder, Professor,
California; Ronald Goldstock, Prosecutor, New York; William W.
Taylor, III, Defense Counsel, Washington, DC, joint letter..... 202
Selden, Jack W., Bradley Arant Boulot Cummings LLP, Birmingham
Alabama, letter................................................ 204
Toner, Michael E., Bryan Cave LLP, Washington, DC, letter........ 205
Whitley, Joe D., Greenberg Traurig, Attorneys at Law, Washington,
DC, letter..................................................... 207
Wood, John F., Hughes Hubbard & Reed LLP, Washington, DC, letter. 208
NOMINATION OF JAMES MICHAEL COLE, NOMINEE TO BE DEPUTY ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE
----------
TUESDAY, JUNE 15, 2010
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:09 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Kohl, Cardin, Whitehouse,
Klobuchar, Kaufman, Franken, Sessions, Hatch, Graham, and
Cornyn.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning. Today the Committee will
consider the President's nomination of Jim Cole to be Deputy
Attorney General. We are proceeding promptly on the nomination
to fill this important position at the Department of Justice,
just as we did when President Bush nominated Mark Filip to be
the Deputy in 2007. The No. 2 position is vital to our national
security and our system of justice.
It has been nearly a year and a half since Eric Holder was
sworn in as the 82nd Attorney General of the United States. He
has made great strides toward restoring the Department of
Justice and the American people's confidence in Federal law
enforcement. Morale has improved throughout the Department. Key
parts of the Justice Department, like the Civil Rights Division
and the Antitrust Division, are now recommitted to their
historic functions. The Department has been aggressive in
attacking crime, particularly violence related to drug cartels,
and it has demonstrated a renewed commitment to aggressively
combating fraud.
The Department has effectively confronted national security
challenges as part of a coordinated effort across the entire
Government. Its prosecutions of those arrested for threatening
our national security are yielding important intelligence, but
also very importantly convictions and extended sentences. These
are difficult problems, but the Attorney General and the
Justice Department have played constructive roles in
confronting them with integrity and a commitment to our
national security.
I would like to start by thanking Jim Cole and his family
for their willingness to contribute to these efforts. He is an
experienced prosecutor. He has a well-deserved reputation for
fairness, integrity, and toughness. He certainly has a great
familiarity with the criminal justice system and the Department
of Justice. He understands the issues of crime and national
security that are part of the Deputy's job. He served as a
career prosecutor within the Department of Justice for a dozen
years, prosecuting complex and high-profile corruption cases,
and helping to manage the Public Integrity Section.
He served as Special Counsel for a House of
Representatives' investigation into allegations of improper
conduct by the then Speaker of the House, and he was fair
throughout. In the private sector, he has led internal
investigations into fraud and corruption. He is leaving a
successful career in private practice to rejoin the Department.
I do not know if you have told your family what a big cut
in pay you are going to take to do that, but I applaud you for
that.
His nomination has received strong endorsements from
Republican and Democratic public officials and high-ranking
veterans of the Justice Department. In a few minutes, we are
going to hear from Jack Danforth, who was a Republican
colleague from Missouri in the Senate, somebody I had the
pleasure of serving with, as many of us did; a former U.N.
Ambassador and former Attorney General of Missouri, and he will
introduce him to the Committee. I know that Senator Cardin
worked with him in the House on ethics investigations; he will
speak about it.
So I think we are very fortunate to have him here. I hope
we will have a strong bipartisan vote for him so we can
continue to make sure the Department is on top of its criminal
justice and national security responsibilities day in and day
out, especially as this is the position that, in the absence of
the Attorney General, acts as the Attorney General.
Again, I apologize for the hoarseness.
Senator Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman.
Senator Danforth, it is great to have you, and, Mr. Cole. I
enjoyed our discussion yesterday. Thank you for coming by. That
was helpful to me.
There are number of critical areas that the Deputy will be
involved in. Of course, you act in the absence of the Attorney
General, and I am sure he will give you a great deal of the
management responsibilities of the Department that has always
traditionally fallen to the Deputy. He needs a strong right
arm. I know he is a friend of yours, someone that you feel
comfortable and he feels comfortable with.
I am not at all satisfied that the Department of Justice is
restored. I am not sure it was so unrestored, actually. But I
have some concerns about your appointment, and we will talk
about those as we go forward.
First, I am concerned about the aggressive way you
criticized the Government's response to the September 11th
attacks and the creation of military commissions. Your
statements show an adherence to the failed 9/11 enforcement
approach to Islamic terrorism that focused on indictments
rather than intelligence and individual suspects rather than
the individual terrorist networks. You were aggressive in that,
and that is the position you took, and it was contrary to what
the 9/11 Commission concluded and I think what this Senate has
concluded fundamentally.
Your criticism of our efforts against al Qaeda were in a
Washington Post article two months after 9/11. That article
stated--``Washington criminal lawyer James Cole said the Bush
administration is invoking an emergency as a pretext for
actions `contrary to the spirit and letter of the
Constitution.' ''
I do not think that is an accurate or fair criticism of the
administration at that time.
Just days before the 1-year anniversary of September 11th,
you wrote an op-ed not honoring the victims of 9/11 or calling
for justice against bin Laden, but faulting the then Attorney
General John Ashcroft for his decision to support military
commission trials of foreign terrorists. In your op-ed, you
argued that, ``[t]he Attorney General is not a member of the
military fighting a war. He is a prosecutor fighting crime. For
all the rhetoric about war, the September 11th attacks were
criminal acts of terrorism against a civilian population.''
You compared the September 11th attacks to criminal acts
like drug violations, organized crime, and murder, writing
that, ``[t]he acts of September 11th were horrible, but so were
these other things.''
You even accused Attorney General Ashcroft of taking
America down a dangerous road and abandoning core American
principles by supporting military commissions.
From your prior statements, it appears that you would favor
trying the September 11th plotters, whether it is Khalid Sheikh
Mohammed or Osama bin Laden, in a civilian criminal court. I
would also have to assume based on those statements and your
writings that you would be in favor of providing Miranda
warnings to foreign terrorist leaders when they are captured.
So I am concerned about what kind of signal that means.
What is the President saying about his determination as to how
to proceed against these enemy combatants who threaten the
United States? Does your nomination suggest that it was a
correct decision to advise the Christmas Day bomber that he
could remain silent and be entitled to a lawyer?
The 9/11 terrorists, I think the American people believe,
are war criminals, not common criminals. The attacks were
orchestrated by an international terrorist organization, al
Qaeda, that was harbored by a foreign government, the Taliban
in Afghanistan, and against whom we have authorized the use of
military force. They should be prosecuted, I think, consistent
with history and propriety, via military commissions just as
this Nation prosecuted the Nazi saboteurs who came to our
country to bomb civilian targets during World War II.
As a matter of constitutional or international law and as a
matter of history, these unlawful combatants are no different.
So I also disagree with your claim in your op-ed where you
characterized the civilian trial of Omar Abdel Rahman, the
mastermind behind the first World Trade Center attack, as a
successful model for how to prosecute 9/11 terrorists. So that
is a matter of discussion, a national discussion, which side
should you take on that.
But I am not alone in my view. The lead prosecutor in Mr.
Rahman's case, Andrew McCarthy, and the presiding judge, former
Attorney General Michael Mukasey, disagreed with the notion
that the Rahman trial was somehow a model for prosecuting
terrorism cases. Former Attorney General Mukasey has written
that, ``[t]errorism prosecutions in this country have
unintentionally provided terrorists with a rich source of
intelligence.'' And he specifically cited the Rahman trial as
having tipped off Osama bin Laden through the production of a
list of unintended co-conspirators.
Mr. McCarthy has said, ``[a] war is not a crime, and you do
not bring your enemies to the courthouse.'' The top officials
within the Department of Justice, I think, have got to reject
this blind adherence to the pre-9/11 criminal law mind-set.
On that note, I should add that I am also concerned that
many Department nominees have made statements much like the
ones you have made and evidence the philosophy that you have
evidenced on this matter. So this is something that we need to
talk about and the Nation needs to get straight.
Briefly, let me say your role as compliance monitor at AIG
in the years leading up to the 2008 financial crisis and the
$182 billion bailout of AIG is also troubling. You were
entrusted to monitor that company and put effective controls in
place. I think we can both agree that things were not
effective, the Government's efforts were not effective.
Some well-respected whistleblower organizations have raised
questions about your nomination in light of the AIG matter.
They have cited internal whistleblower claims that you allowed
AIG executives to revise your reports to the SEC. Maybe we can
discuss that and get your side of that.
Mr. Cole, you were also repeatedly responsible for
reviewing transactions structured by AIG Financial Products
Group, the one that was at the center of the credit default
swaps, and so we would like to ask about that.
Mr. Chairman, our nominee has a lot of experience in the
Department of Justice. He has the confidence of the Attorney
General. He brings a number of good qualities to this Committee
and to the office if selected, but also there are a number of
questions that I think do need to be raised and discussed, and
thank you for giving me this opportunity.
Chairman Leahy. Thank you. Before I yield to Senator
Cardin, I will put in the record letters of support: One from
Chuck Rosenberg, former U.S. Attorney, Eastern District of
Virginia; Harry Rosenberg, former U.S. Attorney, Eastern
District of Louisiana; Michael Toner, the former Chairman of
the Federal Election Commission and former chief counsel of the
Republican National Committee; Jack Sheldon, former U.S.
Attorney, Northern District of Alabama; and Ronald K. Noble,
the Secretary General of Interpol; and John Wood, former U.S.
Attorney, Western District of Missouri; as well as other
letters.
[The letters appear as a submission for the record.]
Chairman Leahy. Senator Cardin.
STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR FROM THE
STATE OF MARYLAND
Senator Cardin. Well, thank you, Mr. Chairman. I asked for
this time because I have had a chance to work side by side with
Mr. Cole, and I wanted to share that with the members of the
Committee.
Let me just point out to Senator Sessions, we are going to
have a chance to talk about the military commissions and civil
trials, but I think some of Mr. Cole's concerns about the
military commissions have been confirmed by the Supreme Court.
But we will have a chance to get into those issues as this
hearing proceeds.
I asked for this time because in 1995 the House of
Representatives had an extremely difficult challenge. The
Speaker of our House was under a cloud of using tax-exempt
organizations--at least alleged to have used tax-exempt
organizations--to promote a political objective. And the
bipartisan leadership of the Ethics Committee had to search for
someone who we could hire as our Special Counsel, our special
adviser, to bring the House of Representatives together, to
bring the American people together, on an extremely difficult
investigation. And we chose Jim Cole to be our Special Counsel.
I then worked with Mr. Cole as one of the four members of the
Subcommittee for over a year, as we investigated the situations
concerning the Speaker of the House.
And I must tell you, you get to know a person after working
with a person for that long of a period of time in such an in-
depth way. And Mr. Cole is what you would call a professional
in the truest sense of the word.
In the Deputy Attorney General, we want someone who is
going to remove politics and represent the interests of the
people of this Nation. That is what we were looking for in the
Ethics Committee, someone who would be nonpartisan, who would
give us the confidence that at the end of the day the American
public would be satisfied that we carried out our
responsibility on the Ethics Committee. And we could not have
done that without Mr. Cole's work.
Rather than giving you my view, let me quote from the
Chairman of the investigative committee, the Chairman of the
Ethics Committee at that time, Porter Goss, as I think most of
you know, a Republican from Florida who went on to become the
CIA Director. Mr. Goss said, and I am quoting from him, that
Mr. Cole was a ``brilliant prosecutor'' and ``extraordinarily
talented.'' Mr. Goss then went on to state that Mr. Cole and
the members of the Subcommittee worked in a ``spirit of
bipartisan cooperation'' that grew as the investigation
proceeded.
I point that out because I do not think we could have come
together as a House putting the interests of our Nation first
without Mr. Cole's professional guidance. And that is exactly
what we need as the Deputy Attorney General. So I am very
pleased to very much recommend Mr. Cole, based upon my personal
experience, to be the next Deputy Attorney General.
[The prepared statement of Senator Cardin appears as a
submission for the record.]
Chairman Leahy. Thank you very much, Senator Cardin.
Our first witness will be Senator John Danforth. He is a
former U.S. Senator from the State of Missouri. He was also our
Ambassador to the United Nations, and one of my very few claims
to fame, in my tenure in the Senate, as I served as one of
Ambassador Danforth's assistants, I was nominated by President
George W. Bush to be a delegate to the United Nations,
confirmed by the U.S. Senate, and was told to go up and do
whatever Ambassador Danforth told me to do. To this day, he is
the only famous person whose picture is in my office of the two
of us sitting in the national security hearing of the national
Security Council at the United Nations. He served with
distinction there, as he did here in the Senate.
It is good to have you back home. Please go ahead.
PRESENTATION OF JAMES MICHAEL COLE, NOMINEE TO BE DEPUTY
ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE BY HON. JOHN C.
DANFORTH, FORMER U.S. SENATOR FROM THE STATE OF MISSOURI
Senator Danforth. Thank you, Mr. Chairman. It is very good
to be back, especially since this is only a cameo appearance
back in the Senate. But I appreciate your comments, and I am
glad to know that my picture is on your wall. You have not told
me whether there are flowers in front of the picture, but I am
happy to hear that.
Mr. Chairman, I do have a prepared statement. If it is all
right, I will submit it for the record. Let me say this about
my friend, Jim Cole. I have known Jim for more than 15 years.
We both joined the Bryan Cave law firm on exactly the same
date. Immediately after leaving the Senate, I joined it in
1995, and Jim also came to Bryan Cave the same year.
We have worked together. I know him well. I have the
highest regard for him as a person and as a lawyer. Jim has
very extensive experience in the Department of Justice. I
believe he served there some 13 years and then entered private
practice.
I consider Jim to be a lawyer's lawyer. There is, at least
I have seen no ideological or political bone in his body. He is
a person who will call them as he sees them and will act in the
most professional way.
Senator Cardin referenced the work that Jim Cole did as the
Special Counsel to the House Ethics Committee. I remember that
at the time that Jim was doing that work, I got a phone call
from Adam Clymer, who at the time was a reporter for the New
York Times, and Adam Clymer said to me, ``Who is this Jim Cole?
He is your law partner. I do not know anything about him.'' And
Adam Clymer said, ``He is so close-mouthed in conducting an
investigation that when I''--Adam Clymer--``asked him where he
was born, he would not answer the question.'' So I think that
that, Mr. Chairman, is a mark of professionalism and an
indication of the kind of person Jim Cole is.
We worked together particularly right after the Enron
scandal broke, and there were allegations that Arthur Andersen
had destroyed records. We were retained by Arthur Andersen and
asked to examine their record retention policy and to create
for them a new policy, which we did. And I can tell you again
that Jim was very, very professional in doing this. No corner
is cut by Jim Cole.
So it is a privilege for me to be here on his behalf and to
tell the Committee that it is my hope that he is confirmed and
that this Committee will move him forward with a strong
bipartisan vote.
[The prepared statement of Mr. Danforth appears as a
submission for the record.]
Chairman Leahy. I appreciate you and what you had to say. I
should also note that when Senator Danforth retired from the
Senate, we did not let him totally retire. He was appointed by
then Attorney General to lead the investigation of the FBI's
standoff with the Branch Davidians in 1993. President Bush sent
him in 2001 as a Special Envoy to the Sudan, and after that he
was tapped to be U.S. Ambassador to the United Nations.
I have no questions of Senator Danforth other than to say I
am delighted to have him back here.
Senator Sessions. I am, too, and you are so well respected
and remembered, Senator Danforth, and we appreciate your
service in the Senate and post-Senate for the good of the
country. Thank you very much.
Senator Danforth. Thank you very much.
Chairman Leahy. Anybody else?
[No response.]
Well, then, Senator Danforth, thank you very much. I know
you have a pressing engagement in Pennsylvania. I wish you well
in it.
Senator Danforth. Thank you, Mr. Chairman.
Chairman Leahy. Mr. Cole, before you sit down, would you
please stand and raise your right hand? Do you swear that the
testimony you are about to give before the Committee will be
the truth, the whole truth, and nothing but the truth, so help
you God?
Mr. Cole. I do.
Chairman Leahy. Thank you very much. Please sit down.
Before we begin, Mr. Cole, you have members of your family
here. Would you please introduce them? Because someday this
will be in the Cole family archives, and they will all know
they were here. Please go ahead.
Mr. Cole. Thank you, Mr. Chairman. It is my honor to
introduce my family members. I have here today behind me my
wife, Susan, who is, put simply, my best friend. She has also,
unfortunately, had to put up with a great deal from me in my
career, long times away from home trying cases, both for the
Justice Department and in private practice, and putting far too
much of the burden of our family on her. I will apologize to
her in advance if I am confirmed because I may have to do a
little bit more of that in the future. But she has been my rock
and my support, and I thank her greatly for everything.
Also behind me is my daughter, Amanda, and my son, Jackson.
These are two children that a parent could not be prouder of.
My daughter currently finished the College of Charleston down
in South Carolina and is living down there, a constituent of
Senator Graham's at this point. And my son is on his way to
college in Louisiana where, obviously, the huge issues about
the gulf are swirling around, and he will be going to a school
that has a tradition of public service and of helping in the
community, and he looks forward to helping in that regard.
Also here today is my mother-in-law, Audrey Levin; my
brother-in-law, Daniel Levin; and Marilyn Pearlman, my aunt.
And I welcome them all. Thank you, Senator.
Chairman Leahy. Thank you. Please go ahead, sir.
STATEMENT OF JAMES MICHAEL COLE, TO BE DEPUTY ATTORNEY GENERAL,
U.S. DEPARTMENT OF JUSTICE
Mr. Cole. Chairman Leahy, Ranking Member Sessions, thank
you for the opportunity to appear before the Committee today. I
am honored by President Obama's nomination of me to be the
Deputy Attorney General, and I look forward to describing for
you the goals I hope to accomplish if confirmed by the Senate.
If confirmed, I will be returning to the Department where I
served for 13 years as a career prosecutor. In a sense, this
would be for me like returning home.
My earlier service at the Department spanned the terms of
three Presidents, and I had the privilege of working for five
Attorneys General, both Republicans and Democrats. My 13 years
in the Department were filled with some of the most rewarding
experiences of my professional career, and it was a privilege
to work with and learn from people who strove every day to
uphold the highest traditions of excellence in protecting the
American people and upholding the rule of law.
I joined the Department in 1979, through the Honors
Graduate Program straight from law school, and spent my early
years as a trial attorney in the Criminal Division. I developed
expertise in the public corruption area and prosecuted, among
others, a Federal judge, a Federal prosecutor, and a Member of
Congress. Eventually I served as Deputy Chief of the Public
Integrity Section. I was proud to work in this field because it
was--and it and still is--important to me that the American
people know that public officials are serving the public
interest and not their own.
In 1992, I went into private practice where I have engaged
in both civil and criminal litigation. I have also been called
upon to help companies establish or improve programs that
monitor compliance with laws and regulations. For example, as
Senator Danforth mentioned, he and I worked closely to develop
document retention policies for Arthur Andersen after the Enron
investigation uncovered serious deficiencies.
In 1995, as noted by Senator Cardin, I served for 14 months
as the Special Counsel to the U.S. House of Representatives
Committee on Standards of Official Conduct. I led an
investigation into allegations that a high-ranking member had
improperly used tax-exempt money for partisan purposes and had
provided misleading information to the Committee. I take pride
in the fact that my investigation led to a bipartisan
resolution of the matter even though it took place in a very
partisan environment. Our recommendations were approved by an
overwhelming majority of the full House.
In 2005, I was selected by the Justice Department and the
SEC to serve as an independent monitor at the insurance company
AIG. I was first tasked by court order to look at 5 years of
transactions to determine if AIG assisted any of its clients
to, as they say, ``cook their books'' through the use of
complex transactions. That work led to another appointment in
2006, in which I developed financial reporting and regulatory
compliance programs for the company. While the company resisted
some of my efforts, I insisted on tough measures.
Should I have the honor of becoming Deputy Attorney
General, my first and foremost duty will be to help the
Attorney General keep Americans safe. We must continue to do
everything in our power to protect Americans from the threat of
terrorism, consistent with the rule of law. We must use all
available lawful means to protect our national security,
including, where appropriate, military, intelligence, law
enforcement, diplomatic, and economic tools and authorities. We
must strongly defend this country from attacks by terrorists,
consistent with our core values.
I would also work closely with the Attorney General to
reinvigorate the Department's traditional law enforcement
mission. The Department of Justice must redouble its efforts to
combat financial fraud, mortgage fraud, and health care fraud,
to enforce civil rights laws and to thoroughly investigate and
prosecute environmental crime. I believe that my experiences in
the public and private sectors have equipped me well to address
these problems, which are so costly to all Americans.
I very much look forward to serving with an Attorney
General whom I respect and with whom I have a strong working
relationship. I share the Attorney General's goals of
protecting the American people against both foreign and
domestic threats; ensuring the fair and impartial
administration of justice; assisting State and local law
enforcement; and defending the interests of the United States.
I look forward to doing all I can to achieve these goals.
Perhaps most of all, I look forward, with your support, to
coming home and again serving with the fine men and women at
the Justice Department.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Cole appears as a submission
for the record.]
[The biographical information of Mr. Cole follows.]
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Chairman Leahy. Well, thank you. Thank you very much.
We have had some notes back and forth here that General
Petraeus, while testifying in another Committee, appeared to be
in a condition of fainting but has, we are told, left under his
own power, walked out. General Petraeus, of course, is one of
those people who works around the clock and may have simply
been exhausted and dehydrated. But I think it is safe to say
that every single member of this Committee hopes that the
general will recover and be well.
Attorney General Holder told this Committee that the United
States is at war with a vicious enemy who targets our soldiers
on the battlefield in Afghanistan and our civilians on the
streets here at home. He emphasized that, in taking on this
threat, we can and should use every instrument at our disposal
to defeat terrorism, including military commissions and our
Federal criminal courts. He has said repeatedly--and I agree
with him--that prosecuting these enemies in Federal criminal
courts is in many instances our strongest tool to gain not only
intelligence but also convictions.
Now, it has been mentioned about your 2002 column
advocating the use of Federal criminal courts in prosecuting
terrorism suspects. You said the Attorney General is not a
member of the military fighting in war; he is a prosecutor
fighting crime.
Now, it is 8 years later. How do you view the efforts to
combat the threat of terrorism and the role of the Justice
Department?
Mr. Cole. Mr. Chairman, perhaps one of the most important
duties of the Justice Department is to fight terrorism. We have
an unprecedented threat against our country in this area, and
as I stated in my article in 2002, it is an unprecedented
threat that we had never seen before, and we must use every
resource we have and the Attorney General must use every
resource he has to fight this scourge and this enemy.
The point of the article that I wrote in 2002 was to state
that we must do so consistent with the rule of law. That was
the point of the article, and that was the core of the article.
It was not really meant to address whether or not we are at
war. It was meant to address how we deal with one of the most
devastating problems presented to our country perhaps in its
history.
The view that I have come to and have developed and is
consistent with that article is we must use every tool we have
to fight terrorism. That includes both military commissions and
Article III courts. At the time I wrote that article, the
military commissions had grave questions about whether they
were constitutional and whether they were consistent with the
rule of law. And subsequent to writing that article, the
Supreme Court, I believe on more than one occasion, stated that
those military commissions, as they were constituted at the
time and subsequent efforts, were not making and meeting
constitutional muster.
Chairman Leahy. In fact, under both Republican
administrations and Democratic administrations, we have used
our Federal courts on terrorism matters. I am told over 400
individuals have been convicted on terrorism-related charges.
We certainly--these were in our courts--obtained valuable
intelligence, much of which I could not go into in an open
hearing, but those of us who have been briefed know of the very
valuable intelligence we have received from these people. There
are hundreds of terrorists locked up in our prisons, so that is
400.
Now, I will note that three people have been convicted in
military commissions. Four hundred to three gives some kind of
view here.
Do you agree that we should have all our tools available to
us? Even though there have only been three convictions in
military commissions, we should have those tools, but we should
also have the Federal prosecutors and courts where we have
proven that we were able to get 400 individuals convicted.
Mr. Cole. Yes, Mr. Chairman, I agree with you completely.
We need all of the tools. The courts have been very effectively
used. As you know, there have been hundreds of prosecutions,
including of 9/11 attackers, successfully done in court. We
have obtained, as I understand, an enormous amount of
intelligence through that, and we have been quite successful.
The military commissions have now been improved to where
they do meet constitutional muster, and we need both of those
tools. Each one has its advantages and its limitations, and we
need to be able to use whatever tools will best and most
effectively do the job in each individual instance.
Chairman Leahy. Every day we look in the news, and we see
what has happened after the collapse of British Petroleum's
Deepwater Horizon oil rig. Oil continues to go into the Gulf of
Mexico. It is heartbreaking to see the contaminants wash up on
shore, 11 people killed, precious resources being destroyed,
families that have created businesses that they have spent
generations building up their businesses, they played by the
rules, they have done everything they are supposed to, and now
because of BP's actions, something totally out of their
control, they are losing that.
I agree with both the President and the Attorney General
when they say that American taxpayers should not have to pay
for the economy and recovery, but BP should. I introduced,
along with Senator Whitehouse and others, the Environmental
Crimes Enforcement Act, a bill to deter criminal wrongdoing by
big oil and other corporations. It increases sentences for
environmental crimes. Clean Water Act offenses can have an
enormous effect on people, on their livelihoods, actually on
their whole way of life. And if there is criminal conduct, then
the sentences should reflect it. But also it makes restitution
mandatory for criminal Clean Water Act violations.
If confirmed, will you support efforts to hold BP and other
companies responsible for environmental disasters and
accountable for their actions?
Mr. Cole. Mr. Chairman, as the Attorney General and the
President have both said, not a penny of taxpayers' money is
going to be used for reparations or anything like that. It will
all come from BP. And I believe that is the right way that this
should go.
We have seen through what has happened in the gulf the full
nightmare of what can happen when environmental catastrophes
occur. The economic toll, the environmental toll, all the loss
of life--these are very, very serious matters, and they need to
be dealt with seriously.
As I understand it, the Department has already begun to do
that and has launched investigations in every avenue that it
has to try and deal with this and to make sure that reparations
are made and that people whose livelihoods have been destroyed
are compensated.
Chairman Leahy. Well, my time is up, but I also have a
question about what you learned having been appointed to
investigate AIG and the economic disaster they caused by their
conduct.
Senator Sessions.
Senator Sessions. Thank you.
I have said repeatedly that BP is liable and should be held
liable for their responsibilities to the extent of their
existence. In other words, they are not too big to fail. They
have to meet the requirements as the responsible party, which
they signed. But I guess as a lawyer I was a little worried
about your so confidently stating that they were going to pay
for everything that they are--that occurred in this
circumstance, rather broad language, having looked at the law
and offered legislation myself to try to expand the
responsibilities. Do you believe that BP should be required to
pay things they are not lawfully required to pay?
Mr. Cole. Well, I think the law obviously, Senator
Sessions, governs in this, but I know that there are
considerations and efforts underway that if there are any
limitations imposed by the law, people are starting to look at
whether or not there are mechanisms to remove those limitations
so that there can be, to the greatest extent possible, an
assurance that BP will bear the costs for what happened.
Senator Sessions. Well, I think that is fundamentally
correct, but as the second-in-command law enforcement officer
in America, I think everybody wants to know that they are going
to be treated fairly under your leadership, and I hope that you
do not mean you would undertake any action to collect that.
I noticed, just an aside, you did a speech entitled ``Role
of an In-House Lawyer in a Corporation'' in October of 2006,
and you stated this: ``The experience with Arthur Andersen
taught the Government something. The consequences were too
drastic and hurt too many innocent employees. The Government
now tries to work settlements with companies that find
themselves in that kind of predicament, and the company does
not get indicted and, therefore, can continue to exist.''
Well, we know that Arthur Andersen failed immediately upon
being charged, as I recall that, and so I am not suggesting
this is a totally improper statement, but it seems to go beyond
strict enforcement of the law and try to preserve corporations
who perhaps should be charged and suffer whatever consequences
might result from their criminal acts.
Do you have any second thoughts about that quote that I
just read?
Mr. Cole. Senator Sessions, I do not. The point of that was
to say that there are reasons why you charge corporations and
reasons why you do not charge corporations. And certainly the
Justice Department, starting back when the Attorney General
Eric Holder was Deputy Attorney General, has issued a series of
memoranda that guide prosecutors in determining when a
corporation should be charged.
The issue is so sensitive because when you charge a
corporation and you cause its demise through that charge,
thousands and thousands of employees who had no role in the
misconduct are hurt. Thousands and thousands of shareholders
who had no role in the misconduct and whose savings were
invested in that corporation are hurt. And it is those people
who had no role who are hurt who are the ones you need to think
about as well when you decide whether to charge a corporation.
Senator Sessions. Well, I think that is, I guess, a
reality, but it has got to be carefully thought through, or
else you are just picking and choosing winners. You are saying
BP is too big to fail. They have got employees, too. This is a
dangerous philosophy. Normally, I was taught, if they violated
the law, you charge them. If they did not violate the law, you
do not charge them.
Mr. Cole. Well, one of the issues, Senator, that is very
much, as I understand it, in the forefront of the prosecution
decisions in the Department is to prosecute the individual
executives in these companies who are responsible for these
criminal acts, because that is how you are going to get the
most deterrence.
Senator Sessions. But are you now saying that you are
backing off corporate indictments?
Mr. Cole. No, I am not at all. I am just saying there are
many ways to be quite effective, and I think you have to
balance the interests of how much damage you are doing to
people who had nothing to do with the wrongdoing versus how
much deterrence you are going to be placing on future conduct
like this. And I think you have to make sure that you are
effective in the prosecution, both of corporations and of the
individual officers.
Senator Sessions. So how much empathy you have for the
employees. Well, anyway, it is a tough decision. I guess we
could go around and around, but I think you need to be careful.
That philosophy has some danger to it. I think you fully
recognize that as the experienced prosecutor that you are.
I also salute you for saying you want to reinvigorate
traditional prosecutions in the Department. I hope that you
will look at the numbers, you will look at the prosecutions,
and make sure that they are working effectively and that they
are high enough based on the number of prosecutors and
investigators in the country. I am not sure that we are. We
have added a lot of prosecutors and Assistant United States
Attorneys around the country. They are paid big salaries. They
need to be producing day after day.
My problem with your op-ed the year after 9/11 was that you
did not suggest improving the military commissions; you
basically flatly stated that these were crimes and they should
be prosecuted as crimes. And at one point you talked about, I
did not see that in that op-ed, but it was a position directly
critical of the concept of military commissions.
Now, are you saying that you left something out you would
have liked to have put in that op-ed and that if you draw up a
good military commission, you do not think it undermines the
Constitution of the United States?
Mr. Cole. Senator, my view is if you have a good military
commission that conforms with the rule of law, it is a very
useful tool. I commend to the Committee the speech recently by
David Kris, the Assistant Attorney General for the National
Security Division, that very, very excellently described the
advantages of both military commissions and Article III courts
and use in the fight against terror. Sometimes it is right to
go with an Article III court. Sometimes it is right to go with
a military commission. Now that we have military----
Senator Sessions. Could I ask you--and my time is up. If an
individual is arrested with a bomb attempting to attack the
United States, a non-citizen, that individual, as we had on
Christmas Day, why wouldn't the best procedure be to
presumptively charge them through the military commission
process since we have authority that shows they can be brought
back into the civilian process and tried as a normal criminal?
And you would not then have to appoint lawyers. They would be
treated as the enemy that they are. And you would not have to
have speedy trial acts, certain discovery rules, and things
that really put burdens on the Government in a time of war that
would not normally be in our best interests.
Mr. Cole. Senator Sessions, there are instances here where
if you would arrest someone like that, they may, particularly
in the military commission realm now, get many of the rights
that they get in an Article III court. And it is really not
about what rights we are giving them. It is about the effective
tool we have.
Senator Sessions. But if you hold them in a military
commission, they do not have to be given a lawyer, they do not
have to be warned of rights, and they do not have to be even
set for trial. They can be held as a prisoner of war, can they
not?
Mr. Cole. If they are detained and they are associated with
al Qaeda or the Taliban, yes, they can be held as a prisoner of
war. But you have to be able to establish that they are
associated with the al Qaeda or Taliban to be able to do that.
Senator Whitehouse. [presiding.] Senator Kohl.
Senator Kohl. Thank you very much, Senator Whitehouse.
Mr. Cole, many people, of course, have advocated for a long
time that Guantanamo Bay needs to be closed. But there is
another consideration that is particularly vital during these
difficult economic times.
On June 7th, the Washington Post posted an article
revealing that the United States has spent more than $500
million on the Guantanamo Bay prison and support facilities.
The Department of Defense spends $150 million a year to operate
Guantanamo. But knowledgeable people say it would cost half
that amount to operate a comparable facility within the United
States.
Of course, our Nation's safety is our first priority, but
would you agree that the cost should be a factor as the
administration decides how to proceed with closing the prison?
And what role do you think cost should play in Congress'
deliberation about what to do with respect to Guantanamo?
Mr. Cole. Senator, I think cost does play a role. I do not
think it can be the determinative role because the primary
issue in trying to decide how to close Guantanamo is the safety
of the American people. That is what is going to override, as I
understand it, almost every decision that will be made in that
regard.
But that is not the only thing. Cost is important. We have
dire economic situations in our country, we have large
deficits, and we need to be smart about where we use our
dollars. So cost certainly plays into the decision on how to
close Guantanamo and almost every other decision we face here
in the United States.
Senator Kohl. Mr. Cole, as you know, the Inspector General
recently issued a troubling report providing that the Justice
Department does not have plans or policies in place to respond
to a biological, chemical, or nuclear attack. It was concluded
that in the event of such an attack, the Department is ``not
prepared to fulfill its role to ensure public safety.''
Clearly, this is not something that any of us want to hear.
What are your thoughts on this issue? And what immediate
steps will you take to address this should you be confirmed?
Mr. Cole. Senator, I have not closely studied the report. I
have certainly read about it. I was at least encouraged to see
that it came to the conclusion that the FBI, one of the largest
components in the Justice Department, did have a good WMD
program for its employees. But it still leaves the concern
about what other components in the Department need to do.
Certainly if I am confirmed, one of the first things I am
going to do is look into this, look into the recommendations
that the IG has made, and do whatever I can to make sure that
we put in place appropriate protections for all of the
employees at the Justice Department to make sure they are safe.
Senator Kohl. Mr. Cole, it seems that the antitrust
enforcement loses out to other interests in internal
administration deliberations. One example is that we have
sought a letter from the Justice Department in support of our
legislation to repeal the freight railroad industry's
undeserved antitrust exemption. Despite the fact that Assistant
Attorney General Varney has expressed her support for our
legislation, no such letter has been forthcoming, apparently
because of objections from the Department of Transportation.
Do I have your commitment to work inside the administration
to secure such a letter? And, more generally, how will you
ensure that antitrust enforcement and competition policy is
seen as a priority in the deliberations between one agency and
another?
Mr. Cole. Senator, certainly the antitrust issues are very
important, and Assistant Attorney General Varney, as I
understand it, has done quite an excellent job in her role in
this area.
You state that there are a number of different agencies
involved. I obviously am not privy to all the information that
is going on within the Department, all of the considerations
that may be involved in delaying this letter. Certainly, if
confirmed, I would, once I get there, be happy to work with you
and to work with the Department and work with all the relevant
agencies on making sure that we have vigorous antitrust
enforcement in all the areas, including the one you note.
Senator Kohl. As we discussed in my office when we met,
that is a high priority that I have, and I would like to feel
that you will also feel that it is a high priority to get that
letter of support. I know you cannot assure me of it this
morning, but I am listening carefully to what you say.
Mr. Cole. I appreciate that, Senator. This is a very
important issue and one which I will look into, if confirmed,
when I get there.
Senator Kohl. Thank you.
For several years, I and others have worked to restore COPS
funding following years of cuts by the prior administration.
Will you work to ensure that the COPS program continues to be
adequately funded? And will you support the bill that we have
to create a permanent COPS office within the Justice
Department?
Mr. Cole. Senator, the COPS program is a very important
part of a holistic law enforcement approach to crime throughout
the country and to helping State and local law enforcement
achieve some real gains and goals in the fight against crime.
It is something I know the Department supports in many, many
different ways, and I cannot imagine that there would be any
lack of support in this area within the Department. It is an
important program and receives the highest priority there.
Senator Kohl. Thank you, Mr. Cole.
Thank you, Senator Whitehouse.
Senator Whitehouse. Thank you, Senator Kohl.
Senator Hatch is not here. He is next in order. So we will
go on to Senator Cornyn and then Senator Cardin.
Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman.
Good morning, Mr. Cole. Congratulations to you and your
family for your nomination.
I have questions pertaining to some of your writings and
opinions relative to the war on terror, and I appreciate the
fact that when you wrote this article back in 2002, the state
of the military commissions was in flux, both here in Congress
and in the Supreme Court. But you recognize now, I think you
have said, that military commissions can be an appropriate
venue for trying foreign terrorists who have committed acts of
terrorism against the United States. Is that correct?
Mr. Cole. That is correct, Senator.
Senator Cornyn. Let me ask you a little bit, there seems to
be some confusion about Miranda, about Miranda rights. As I
recall, when you detain someone and you read them their Miranda
rights, the first thing you tell them is their right to remain
silent. Is that correct?
Mr. Cole. That is probably the first part of the Miranda
rights, yes.
Senator Cornyn. And why in the world would you read a
suspected terrorist Miranda rights if, in fact, the first thing
you want from someone who has committed a terrorist act is to
find out more information about their travels, their
associations, their planning, and their knowledge of terror
networks? Why would you tell them the first thing out of the
starting gate is that they have a right to remain silent? Or do
you not support reading Miranda rights to suspected terrorists?
Mr. Cole. Senator, Miranda is a constitutional requirement
that comes, as the Supreme Court has said, not from statute but
from the Constitution. There is an exception that the Court has
carved out in the Quarles case, which is the public safety
exception. When you capture a terrorist and there is the
ticking time bomb or another plot evident, you can ask all the
questions you want to secure the public safety without Miranda
warnings.
Senator Cornyn. I understand. I understand that point, and
I agree with you. I guess the question I would have for you is:
What is the consequence of a law enforcement officer not
providing Miranda rights to a detainee? They may
constitutionally do so, correct? And the only result if they
fail to do it and a court decides they should have done it
would be to exclude evidence produced by that--any statement
they might make or any fruit of the poisonous tree. Is that
correct?
Mr. Cole. That is correct. The reason to give Miranda
warnings is to make sure you can use whatever statements you
get. Now, my experience, frankly, in criminal law for 30 years
is that frequently, after being given Miranda warnings and
after being given a lawyer, defendants and people who are
detained talk. And they talk a lot.
Senator Cornyn. Well, that is when--but you cannot compel
them, correct?
Mr. Cole. You cannot compel them, no.
Senator Cornyn. Consistent with Miranda. But I guess the
problem I have had during the public discussion about whether
Miranda rights should be given to people suspected of terrorist
actions, both here and on the battlefield, is a confusion in
the approach. And I worry, as others have stated, that we are
lapsing back into what the 9/11 Commission called sort of a
criminal law mind-set as opposed to one that, to use your
words, I think, uses all the tools available in the national
security interests of the United States.
So just to summarize, you would agree with me that if on
Christmas Day the Miranda rights had not been given to the man
who attempted to blow up that airliner, that you still could
have tried him either in a military commission or in a civilian
court and gotten a conviction if you were able to use other
evidence other than his own statement or any information that
might have been learned from that statement. In other words, if
you do not give someone--if a judge says you should have given
Miranda rights and you do not, that does not mean you are
unable to get a conviction in every case, does it?
Mr. Cole. It does not mean you are not able to get a
conviction. It certainly creates a number of issues and a
number of obstacles to getting a conviction that I know most
prosecutors try to avoid. There are enough surprises at any
trial that we try to avoid as many as we can in bringing any
case.
Senator Cornyn. Do you agree with the Attorney General that
the trial of Khalid Sheikh Mohammed is still--that trial in a
civilian court in Manhattan is still an option?
Mr. Cole. At this point, Senator, I know that matter is
currently under review in the administration based on what I
read in the paper. These are decisions that have to be made
based on all of the facts and circumstances that relate to the
case. Not being a part of the Department of Justice right now,
I do not know all the facts and circumstances that related to
Khalid Sheikh Mohammed's prosecution.
Senator Cornyn. I appreciate that, and I understand
completely your statement. But would you agree with me that we
ought to take into concern that one of the considerations that
ought to be taken into account is the security and safety of
citizens at the courthouse and in proximity to the courthouse
should that be the focus of another terrorist attack? Would
that be a concern?
Mr. Cole. We definitely should take into account the safety
of our citizens in almost every decision we make. That probably
should be the first thing we take into account.
Senator Cornyn. And if instead of pleading guilty, as he
indicated he would do, before a military commission, if he pled
not guilty and used this as a propaganda tool to incite like-
minded jihadists around the world, would that be a concern?
Mr. Cole. Senator, as I have read throughout the time since
9/11, we have tried and convicted in our Article III courts
hundreds of terrorists, including Zacharias Moussaoui, who made
the same kinds of threats----
Senator Cornyn. I understand. But I guess my question has
to do with the mastermind of 9/11, Khalid Sheikh Mohammed. Do
you think that providing him a platform for propagandizing
like-minded jihadists around the world, should that be a matter
of concern?
Mr. Cole. Well, I think it is--the issue of whether or not
a forum is open is really one we are going to face whether or
not it is an Article III or a military commission. Both of them
have requirements of openness to the public to view. So those
are issues that are going to come up, regardless of which forum
would be chosen at the end of the day.
Senator Cornyn. And if I can ask just one last question,
this has to do with if there was an attempt to try Khalid
Sheikh Mohammed in civilian court in the continental United
States and for some reason he was acquitted, don't you think it
would make good sense and be good lawyering to determine what
his immigration status would be, for example, whether he would
be eligible to seek asylum in the United States should he be
acquitted?
Mr. Cole. There is no question we should deal with that,
and, again, I do not know, but I would imagine the Justice
Department has already looked at that issue, as I think they
have with any number of the detainees, as to what their status
would be at any given moment, as to whether they could ever be
transferred, released, or in any way let go. Separate issues
between a prosecution and the ability to actually let somebody
go.
Senator Cornyn. I hope----
Senator Whitehouse. Senator Klobuchar.
Senator Cornyn. Thank you.
Senator Klobuchar. Thank you very much, Mr. Chairman.
Welcome, Mr. Cole. I enjoyed our meeting that we had in the
office, and I enjoyed the focus that we had on some of the
bread-and-butter issues of the Justice Department. It was my
impression, being a prosecutor on the local level for 8 years,
that it makes a big difference whether or not the Justice
Department and the U.S. Attorney's Offices are functioning on a
day-to-day basis and doing their jobs. I was very concerned
when Attorney General Gonzales was head of that Department,
some of the repercussions that it had on our own local U.S.
Attorney's Office, and I just wanted your thoughts on the
morale issues. There were some serious concerns when Attorney
General Holder took over, thoughts on that, as well as the
focus on some of the bread-and-butter issues--white-collar
crime, health care fraud, the drug crime, some of the bread-
and-butter issues that I feel that the Justice Department,
whether intentionally or not, had fallen away from during that
period. Thank you.
What are your thoughts on it?
Mr. Cole. Oh. The Justice Department--and I think rightly
so from an outsider's view--after 9/11 had to devote an
enormous number of resources to national security. It was a new
area and a new focus and certainly very important. And
resources being limited no matter what had to be diverted. So a
lot of the bread-and-butter issues were not given the attention
that they needed to be given in the course of that run-up.
Now we again have limited resources, and I think it is one
of the important issues for the Justice Department to make sure
that we reinvigorate the traditional bread-and-butter functions
of the Department to fight fraud, to fight health care fraud,
to fight financial fraud, to fight public corruption, to fight
every form of crime that it has fought, and just as
importantly, to partner with State and local law enforcement to
make sure that there is a coordinated fight against crime. This
is not something that is done by one or the other. It is done
together.
Senator Klobuchar. When I was a prosecutor, I saw firsthand
the effectiveness of some of these task forces on a
multijurisdictional basis with local and State and Federal, and
I will tell you that we have recently had big decreases the
last 8, 10 years in crime, and the city of Minneapolis, which
is our major metropolitan area, although just in the last few
months we have seen some increases. So I hope when, as you get
in there you will focus on some of those multijurisdictional
task forces. I do think it is a smart way and it is also a way
to coordinate resources.
But I wanted to ask you about something that you raised,
which was the health care fraud. I am sitting right next to
Senator Kaufman, who worked very hard on this issue. But could
you talk about what is going on with the HEAT task forces and
some of the work? I am interested in this not only because I
think it is just horrific that billions of dollars are wasted
on health care fraud, but also one of the things I noticed when
we had the Justice Department here was that some of our most
disorganized health care systems in the most disorganized parts
of the country, like Miami, where the delivery systems are
messed up, also breed fraud. Because there is not just
Government that is not watching over them, but the private
sector is not watching over each other.
Could you tell me your views on health care fraud, what is
happening there, and give us an update.
Mr. Cole. Well, certainly I at this point am not privy to
everything that is going on inside the Department other than
what I learn through reading accounts of what is happening in
the press. I have certainly been quite impressed with the
Department's effort through HEAT to have a very broad-based
approach to health care.
First of all, it is not just the criminal enforcement. It
is also False Claims Act enforcement. It is the full civil and
criminal package put together. And it is also not just
scattershot. It is evidence-based. They are going to various
jurisdictions and looking at where there is just off-the-chart
billing that is going on in certain areas and focusing the
resources in those areas initially. And it has created
additional task forces as they have identified additional
areas.
This seems to be a very intelligent, smart use of
resources, and at least from what I have seen in the papers, a
very effective way to go about policing this area that is
costing billions of dollars to our citizens.
Senator Klobuchar. Another area that you raised, Internet
fraud. The 2009 Internet Crime Report by the Internet Crime
Complaint Center was released in March. It revealed that
complaints of Internet fraud were up 25 percent from over a
year ago and that the total loss had doubled from 2008 to 2009.
I certainly found those cases difficult on a local basis to
do. Sometimes it would be people in Nigeria committing these
crimes. Sometimes it would be a multi-State fraud. And how is
the Justice Department going to be able to assist with these
and make this a major focus? Because I really believe that it
is the crime of the future. We are already seeing it now. So it
is the crime of the present as well. But crooks are using a
computer, when they used to use a crowbar.
Mr. Cole. You have raised a very important issue, and it is
certainly an issue that Senator Whitehouse had raised when we
talked. This is--I think you are right. It is the crime wave of
the future, and it is adaptable and changeable as technology
adapts and changes. You buy a computer, in 6 months it is
obsolete. All of our efforts to try and fight and all of the
Justice Department's efforts to try and fight cyber crime and
Internet fraud are obsolete so quickly because things change so
quickly.
So it is an area that I think needs a great deal of
attention to try and make sure we stay as far up on the curve
as the Justice Department can in trying to fight this in really
an ever-changing and adaptable foe in this area of crime.
Senator Klobuchar. Thank you very much.
Senator Whitehouse. Senator Graham.
Senator Graham. Thank you, sir. Congratulations, Mr. Cole.
Is your daughter here?
Mr. Cole. She is, Senator. Right here.
Senator Graham. Do you like the College of Charleston? I
will put a good word in for you. It will not help you at all.
[Laughter.]
If she made it, you will make it. I hope you have enjoyed
Charleston. And thanks for the money you are spending in South
Carolina.
Mr. Cole. It is my pleasure, sir.
[Laughter.]
Senator Graham. We had a good discussion in our office
about military commissions. I feel very comfortable that you
understand military commissions have a role in the war, as do
Article III courts. But I am going to express through our
interchange here some frustrations, really not directed at you,
but I have had some very extensive discussions with the
administration about how Congress can help define some of the
rules and how we can bring about some legislative changes that
will lead us to all be safe within our values.
Judges Lamberth and Hogan are two judges who hear habeas
petitions from Guantanamo Bay detainees regularly, and here is
what Judge Hogan had to say: ``It is unfortunate, in my view,
that the legislative branch of the Government and the executive
branch have not moved more strongly to poverty uniform, clear
rules and laws for handling these cases.''
There are a bunch of quotes from judges basically asking
Congress and the executive branch to give them some assistance.
The Attorney General has mentioned it on more than one occasion
that there are several areas where Congress could collaborate
with the administration to provide some guidance.
Would you be willing to help us find that common ground?
Mr. Cole. I would be very willing to work with the
Committee and to work with the Congress to help find that kind
of clarity. My view has always been the more clarity, the
better.
Senator Graham. Well, the judges are asking this, and I
very much believe in checks and balances, but our judges
basically are sort of making this up as they go. And I think a
uniform statute dealing with habeas right of Guantanamo Bay
detainees not only would be helpful to the courts, it would
make us a more secure Nation. It would allow us to potentially
close Guantanamo Bay. The biggest problem we have with closure
now is we have sort of lost the issue can we do it safely.
Could you comment very quickly? What rights would a
detainee have if they were transferred from Guantanamo Bay to
Thompson, Illinois, let us say, if that became the prison?
Would they have more rights in Illinois than they would in
Guantanamo Bay?
Mr. Cole. Senator, at least my understanding of the legal
status here is I do not think that would change dramatically.
Senator Graham. Could you get back with me? Because there
is a real difference of view. I do not know the answer. I would
love to get your thoughts after you get the job here, and I
assume you will be confirmed.
Now, on Miranda warnings, the goal to me when you capture
someone who just tried to blow up an airliner or blow up a van
in Times Square, and we believe it is a terrorist activity, is
to find out what they know about the ongoing war. You share
that goal. Is that correct?
Mr. Cole. I do, Senator, yes.
Senator Graham. And I have been working with the
administration, Senator Durbin, and others to find some pretty
common-sense exceptions to the Miranda rule by statute, built
around the public safety idea, to give our intelligence
officials and law enforcement officers a chance to find out
more about the detainee before they start assigning lawyers to
this person.
Would you support that endeavor?
Mr. Cole. I would very much, if confirmed, be anxious to
work with the Committee and work with Congress to find a way to
give more clarity and flexibility around the Miranda rule. It
is a constitutional dictate, so we will have to have it, no
matter----
Senator Graham. Absolutely, and we could build off the
public safety exception, have a statute that allows a couple of
days for the intelligence community to assess who this person
is, then go to a judge and ask permission to continue to hold
for intelligence-gathering purposes, but only if a judge said
yes, sort of like a FISA hearing.
We have fleshed this out, but I am very frustrated. We are
2 months after the initial discussion almost, and nothing has
happened, and the war is moving on a lot faster than some of
the solutions to deal with the war. So I would appreciate any
efforts you could lend to this cause of getting Congress and
the administration moving quickly to deal with real issues
about presentment.
You know, Mr. Kris that you mentioned before gave a speech
yesterday that was a bit troubling to me. We have been working
on two problems that Miranda presents--two problems with
terrorist detention here in the United States: One, the Miranda
warning to give some flexibility, and you are right, the
Miranda warning itself may not be an impediment in every case,
but I just want to give the option to the law enforcement and
intel community. And second is presenting the detainee to a
judge for charging within 72 hours. To me that seems to be a
very small period of time to make an intelligent decision about
how to handle this person.
So we are working on some statutory relief mechanisms that
would live within our value system, have checks and balances,
but provide more tools to the intelligence and law enforcement
community fighting this war. And I look forward to working with
you on that.
Finally, about habeas review, one case now before the
Court, a habeas petition was granted because the Government
could not prove at the time of capture the person was a member
of al Qaeda. But they did have proof that the person was a
member of al Qaeda shortly before the time of capture. One of
the things that we are looking at is a presumption that once
you are a member of al Qaeda, you are always a member of al
Qaeda. But it would be a rebuttable presumption.
Do you think tools like that would be helpful to the judges
and to your prosecutors trying to deal with these cases?
Mr. Cole. Senator, anything that can provide more clarity I
think is always helpful, because the less that is known and the
less certain you are, the more difficult it is to administer
some of these laws that we have. All of the facts and
circumstances are going to be new and fresh in each case, and I
think anything we can do to provide clarity and provide
certainty is always helpful.
Senator Graham. And this is what the judge or judges are
asking for. I trust their judgment, but we just need some
uniform rules dealing with these cases that are unique and
novel and a hybrid system of using the best of the civilian and
military justice systems.
So I look forward to working with you on these issues, but
time is of the essence. The war is ongoing. They are out there
coming after us right now, and I do not want to confuse the two
systems to the point that the enemy gets an advantage. There is
a role, in my view, for an Article III system in the war on
terror. There is an equally important role for the military
justice commission. But when you capture these guys, the first
thing I want to know is: Where did you train? Is something else
coming? And our legal system now does not give us the
flexibility to make those good decisions, and quite frankly, we
have just been lucky that these bombs did not go off. And we
are going to run out of luck, and I stand ready as a Republican
to work with the President to change our laws in a way to make
us safer, live within our value system, and try to find a way
to close Guantanamo Bay, if we can. And I look forward to
working with you in those endeavors.
Mr. Cole. Thank you, Senator. I do as well.
Senator Whitehouse. Before I call on Senator Kaufman, who
is next, let me just add my own emphatic underline to Senator
Graham's offer to work with this administration. In the 3 years
that I have worked with him, I have come to the strong belief
that he wants to work on these issues in completely good faith,
and I know that he is very knowledgeable and expert in this
area. So add that emphatic underline, and if you would be good
enough to work with our side of the aisle, too, that would also
be nice.
Mr. Cole. I would look forward to working with everybody.
Senator Whitehouse. Senator Kaufman.
Senator Kaufman. Thank you, Mr. Chairman. And I also want
to say before I start, Senator Graham has been so--he has not
just worked hard, but so articulate and so thoughtful in what
he is doing. And I just think it is a wonderful thing to see
when bipartisanship really works, and on this issue, Senator
Graham has been great.
And I want to thank you for agreeing to do what you have
agreed to do. And I want to thank your family because, really,
the biggest sacrifice here is going to be made by your family,
because this is not a job where you get to come home every day
at 5 o'clock. And so I really appreciate what you are doing.
But I tell you, when you look back on it, it is a great thing
to look back on. So I want to thank you for what you are doing,
not just because you are making the sacrifice but because you
bring so much to the job.
As you know, as Senator Klobuchar, get the bread-and-butter
issues. These other issues are important, but clearly most
Americans are concerned about what we are doing, what Justice
is doing to make sure that they feel like they are safe and
secure, not just from international terror but also from
domestic crime and domestic fraud and those kinds of things.
So I want to spend some time, as you know, talking about my
favorite subject, which is what are we going to do to make sure
the people that were involved in this financial crisis pay the
price? And as you said, with the reduced resources in many
areas, the bread-and-butter issues get harder and harder, but
this is an area where we have funded pretty well. We have got
$175 million coming just to go after financial fraud, and I
would like you to spend just a few minutes talking about what
kind of priority you think that is and kind of your thoughts
moving forward when you are confirmed for Deputy Attorney
General.
Mr. Cole. Thank you, Senator Kaufman. The area of financial
fraud is something that has impacted every single American. The
loss of money, the loss of savings, the loss of retirement
accounts, the loss of faith in our capital markets has been
devastating. And it is something that we need to make sure that
people are held accountable for. This is so important, because
only by making sure that people know that there are
consequences to having perpetrated this kind of fraud will we
have a hope of deterring anybody from ever doing it again.
I harken back to some of the discussion I have had with
Senator Sessions. One of the main ways to do this is to go
after the individual executives who are responsible to make
sure that they have skin in the game, that they are not just
going to walk away because their corporation takes a plea. It
is they who would go to jail. It is they who will suffer the
consequences. And it is they who made millions and millions of
dollars who will be forced to give that back. That to me is one
of the keys that could come in in a successful program to deal
with this.
Now, from what I see, there has been an increase of
resources, and it is actually hitting the ground. I have talked
to old friends in the Fraud Section in the Criminal Division,
and they have told me they are hiring now, and that has been
something that has been promised for years and is finally being
done. And I find that a very, very important first step,
getting boots on the ground to actually start dealing with this
issue. There has been a lot of talk about it, but it is finally
getting done, and I find that very, very encouraging.
Senator Kaufman. And talk a little bit about coordination.
You mentioned coordination, that it is so important. Let us
start with the U.S. Attorneys. Basically we all know there is a
long history of U.S. Attorneys being protective of their turf.
This goes back to Republican and Democratic administrations and
Main Justice. And so you have cases actually being carried on
in Main Justice, and they could be carried on in the U.S.
Attorney's Office without true coordination. How do we get the
U.S. Attorneys and Main Justice--because you are uniquely
positioned, you and the Attorney General are the only people in
the Justice Department that all the different sections of the
Department of Justice report to. So having someone who can make
sure--can you just talk a little bit--I know your experience
with these things. Talk a little bit about how we make sure
that the U.S. Attorneys--for instance, mainly U.S. Attorneys in
the Criminal Division operate together. They share everything
they are doing.
Mr. Cole. When I was in the Justice Department years ago,
the most successful cases that I saw were those that were
brought where the Criminal Division and U.S. Attorneys' Offices
worked together. There is a great deal of expertise that can be
mined out of the Criminal Division, and there is an enormous
amount of talent in all the U.S. Attorneys' Offices.
This is much like everything else we do. We need to use all
of the tools we have, and we need to make sure that we avoid
turf battles. We need to avoid any sort of petty infighting.
Sometimes there are important issues that come up, and they do
need to be dealt with, and there are valid complaints and valid
issues about who should have a case. But we are a very large
organization, and the more that that organization--the more the
Justice Department can work together, the greater the success.
Senator Kaufman. And how do you--I mean, kind of
mechanically, how does it work? I mean, really, the only two
people that can really enforce that and make sure it works are
you and the Attorney General. Moving forward, how do you see
that actually happening?
Mr. Cole. Well, certainly, looking forward, it would
involve the Assistant Attorney General for the Criminal
Division, Mr. Breuer, who is an excellent prosecutor and
lawyer. He would be interfacing with a lot of the U.S.
Attorneys on these cases. The individual attorneys in the
sections who have the expertise, as the U.S. Attorneys' Offices
get more familiar with them and get to know them and get to see
what the value-added can be and the resources that are added
can be, then they start to be comfortable. They start to
actually work together.
A few successes is usually the key to make everybody start
to break through the dam and realize that there is gold to be
mined from the cooperation.
Senator Kaufman. And, you know, there are a number of
reports. The joint savings and loans, one of the key places to
obtain information to bring cases was the bank regulators. Can
you talk a little bit about how we get the bank regulators into
this thing?
Mr. Cole. There have been a large number of Federal
agencies that have touched this financial meltdown, and we need
to really mine what we can from them, because they all have a
perspective and they all saw a part of it that could be very
helpful in trying to bring these cases.
We should make sure that we use whatever sources of
information that can be found, and the Justice Department--if I
were confirmed, I would push this--needs to use whatever
sources of information can be found to get insights into how
the financial problems occurred, who was responsible for them,
all leading to an effort to try and bring those people to
justice.
Senator Kaufman. And, finally, I just want to really thank
you for what you are doing. I think it sends a clear message.
This is not about retribution. This is about making sure that
everyone gets treated fairly. But there are people on Wall
Street--I spent time up there talking to folks and talking to
reporters that cover Wall Street--who basically think they got
through the financial fraud thing absolutely scot free. And
they believe that they have--because these cases are so complex
and because they have very, very good attorneys on their side,
they genuinely believe that they can get away with this. And I
think it is really important not just for retribution but
important to where we go down the future that we are working
together.
There was a good article in the Washington Post today about
the people that are bringing the Securities and Exchange
Commission. I think having you come on and do this job is an
incredible sign. I think Lanny Breuer, I think the people that
we are getting are really key so that we do not have another
meltdown with, as you said, all the damage that was caused by
that, by people that just think they can do it and without any
fear of retribution. That is an important part of how our
system works.
So, again, thank you very much for what you are doing. It
is very, very important.
Mr. Cole. Thank you, Senator.
Senator Whitehouse. Senator Cardin.
Senator Kaufman. Thank you, Mr. Chairman.
Senator Cardin. Thank you, Mr. Chairman.
Mr. Cole, once again, thank you for your public service.
Thank you to your family for the sacrifices that they put up. I
know the sacrifices they put up when you were doing the
investigation for the House, and we know this is a family
effort, so we thank you all for your willingness to serve in
the public.
Senator Danforth made an observation that I fully agree
with, and that is, his observation is that you will call it the
way it is, that you will do what you think is right, and you
have an ability to avoid the pressures, outside pressures, and
do what you think your job requires you to do.
I saw that in the investigation in the House with Speaker
Gingrich. There were many times that some of us disagreed where
you were heading, including yours truly, and you were
persuasive in the way that you handled it to get us back on the
path to resolve the case as it should have been resolved.
Do we have your commitment, as Deputy Attorney General,
that you will continue to call it the way you believe is right
and that you will not be influenced by partisan politics or
popular sentiment, and that you will continue carrying out your
responsibilities the way that you believe is right?
Mr. Cole. Senator, if I am confirmed, you have that as a
firm commitment from me.
Senator Cardin. Thank you. So let me test you on one area,
which Senator Graham was talking about, which is the closing of
Guantanamo Bay. It is a tough issue. It is a very tough issue.
And I am not trying to make it easy to accomplish the goal of
closing it. But one of the challenges--and I was recently down
in Guantanamo Bay. It was not my first visit. I have been there
several times--I have been there twice.
What do we do about those detainees that we cannot bring to
trial, there is no place really to send them, and we are going
to have to detain them for a longer period of time? President
Obama and Attorney General Holder made a commitment--and
Senator Graham was part of that--that there would be a process
in place to review their status so that we could present to the
international community that we are using due process of law to
make sure that people who are being detained, there is
justification for their detention, even though they are not
being brought to a criminal proceeding and not being released.
I questioned Attorney General Holder as to when we might
expect to receive that guidance, and the narrowest I could pin
him down to would be more than a few days and less than a year.
I would hope that you would tackle this issue and help us
resolve it because in the eyes of the international community,
Guantanamo Bay is an icon of abuse. And part of it is that
people who may very well be terrorists are still entitled to
the rule of law. And we need to make sure that is complied with
in the way that we manage this, not just internally, but to the
international community.
So I sort of charge you with your reputation to try to
bring this to conclusion sooner rather than later.
Mr. Cole. Certainly it is a matter, if confirmed, that I
would look into. It is, I think, a very important and high-
priority matter, Senator.
Senator Cardin. I want to bring up one other issue, and
that is, this past Friday I was down in the Gulf of Mexico, saw
firsthand the horrific damage that has been caused by the BP
oil spill. It is hard to imagine just how vast this problem is.
We saw oil everywhere. We saw it on Grand Isle, which is a
beach community, not too different than Ocean City, Maryland,
where there was nobody there other than people cleaning up the
beaches. Normally, there would be vacationers. And I cannot
imagine what would happen if we had to close Ocean City for a
season. And you take a look at the sensitive islands where
birds are nesting and see oil all over.
I guess the point I want to stress is that BP oil needs to
be held fully accountable for the damages that they have
caused. In their application for their permit, they said that
they had proven technology to deal with any type of a spill.
They did not have proven technology. They are trying to deal
with this issue on the fly, and it should have been done in
advance. There should have been ways to contain this oil in the
event of a spill. That technology should have been onsite. And
the best technology they have today may contain upwards to
28,000 barrels if they get fully successful before the relief
wells are drilled. And yet we know it is now closer to 40,000
barrels of oil pouring into the gulf.
I guess my point to you is, if you are confirmed and you
become Deputy Attorney General, we need to make sure that the
people of this Nation are protected. There should be no
Government bailout for the damages caused by BP oil. But we
have to have aggressive law enforcement. The Department of
Justice needs to be there and devote a significant amount of
resources to help those small business owners, to help those
property owners, to help the taxpayers, and to protect our
environment for future generations, assessing accurately the
amount of damage caused to our environment and holding BP
responsible.
Will this be the highest priority within the Department of
Justice under your portfolio if you are confirmed?
Mr. Cole. Senator, my understanding is it already is a
very, very high priority in the Department of Justice. The
devastation that has been visited upon the gulf is important to
the President. It is important to the Attorney General. It is
very important to the people who live down there, and that
every effort, as I understand it, is being made to address all
the issues that you have just outlined as very, very important
prerogatives of this Government.
Senator Cardin. Well, once again, Mr. Cole, let me thank
you for being willing to serve the public. You have a very,
very distinguished career, and your experience is what we need,
and I wish you well.
Thank you, Mr. Chairman.
Mr. Cole. Thank you, Senator.
Senator Whitehouse. Mr. Cole, like many of the graduates of
the Department of Justice, I watched with real horror and
dismay as the events in the Department of Justice under the
Gonzales Attorney Generalship unfolded. One of the most
horrifying was what happened at the Office of Legal Counsel. It
is almost unimaginable to somebody of my vintage in the
Department of Justice that the Office of Legal Counsel would be
the subject of an Office of Professional Responsibility
investigation. But that happened, and we have to deal with
that.
The Office of Professional Responsibility investigation
went forward, and it, too, ran into its own problems, and David
Margolis reviewed the OPR investigation and had a variety of
critical comments about that.
I have my own concerns about Assistant Deputy Attorney
General Margolis' review, and I would like to have the
Department clear this up once and for all and put this episode
behind it.
The concern that I have about David Margolis' review is
that I think he sets the standard for OLC attorneys far too low
in his opinion, and I think his opinion under Department
protocol becomes precedent. So I would like to ask you when you
are confirmed, assuming you are confirmed--I expect you will be
confirmed--to review that determination and make a departmental
determination as to what the standard should be for lawyers at
the Office of Legal Counsel.
Where it stands right now is that a regular day-to-day
lawyer with the files under his arm and the rumpled suit, going
to the court to bang out his cases every day, is held, when he
makes representations about what the law is to the court, to a
higher standard than the Office of Legal Counsel is held to
when they give advice to the President of the United States.
And I think that is wrong. I think that when a lawyer is before
a court, the standard that they are held to has a couple of
safeguards. One is the judge is going to do their own
independent research, and so there is a good likelihood that
any error or effort to mislead by the lawyer will be found.
And, second, he has his distinguished opposing counsel, if you
do not mind if I put you in the role of opposing counsel here
for a moment, to explain to the court why that lawyer's
argument is wrong and why he has overlooked certain cases.
OLC does not have those checks and balances. OLC's opinions
are often secret. The President may not even be a lawyer. For
all those reasons, I think that the standard for the Office of
Legal Counsel, which, as you and I recall, was the gold
standard--these were people who went on to be Supreme Court
judges. These were people who were the top of the profession in
the United States. The idea that they are held to a lower
standard than the regular work-a-day lawyer who is slugging it
out with 12 cases under his arm and paper files in the superior
court every day to me just seems dead wrong.
So, please, if you would review that when you get there. I
think there should be a formal departmental determination made
as to what the standard is rather than just the Margolis
opinion lasting as precedent. Will you do that?
Mr. Cole. Certainly it is a matter that I would be, if
confirmed, happy to look into, Senator.
Senator Whitehouse. The second issue that I want to ask you
about is cyber. We talked a little bit about it, as you
indicated, when we met. I have a very persistent and serious
concern that the American public knows far too little about the
damage that the United States of America is sustaining now,
yesterday, tomorrow, through cyber attacks, both from
infiltration into our computers in ways that allow later
harmful actions to be triggered; from traditional crime, banks
being robbed in ways that would make, you know, Bonnie and
Clyde look like pikers; and probably the most significant
industrial espionage piracy in the history of the world, the
biggest transfer of wealth I think ever is happening right now,
and we are on the losing end of it. And it is all more or less
invisible to the public because if you are in dot.mil and
dot.gov, it is classified so deeply that nobody hears about it;
and if you are in dot.com, dot.org, or dot.net and you are a
corporation, you have a proprietary interest in not letting
that information get out. The banks do not disclose that they
got hit for tens of millions of dollars because they do not
want their competitors to know, they do not want their
customers to know. The net result of all of that is that the
public does not know.
So I would ask you to review with the Attorney General
where our classification policy is on this so that we can make
a decision about how much to disclose to the American people
about what is actually happening to our country so that they
can be engaged in a proper way in the legislative and public
acts that need to follow. I think that we are way to the side
of secrecy to the point where the secrecy is actually damaging
our national security now rather than protecting it. Will you
look at that?
Mr. Cole. Certainly, Senator. I think those are important
issues and important balancings that need to be done, and
certainly the right balance and the right position needs to be
found between both the secrecy that is required and the import
of getting out those messages to the public.
Senator Whitehouse. You do not necessarily have to give up
the name of the bank for the public to know that X gazillion
dollars were stolen from an American bank by cyber criminals in
this period. And that is the kind of information I think people
need to know.
You mentioned earlier that lawyers, prosecutors, like as
few surprises as possible, and as somebody who has had the
privilege of preparing Federal cases and walking through that
analysis, we do try to analyze very carefully how the case is
going to go down its path and eliminate as many surprises as
possible.
In that context, do you have views on the military
tribunals--and I mean the new ones that have been cleaned up of
their previous unconstitutional problems, but still do not have
as much settled jurisprudence about the conduct of the tribunal
and the rules that govern it as an Article III court has from
tens of thousands, hundreds of thousands of criminal trials and
the precedent that has developed in those over the years.
As a trial lawyer preparing a case and making the decision
whether you are going to a military tribunal or to an Article
III traditional criminal court, would that factor of the
unsettledness of the law in one area versus the settledness of
the law in the other weigh as a factor in that calculation? And
should it?
Mr. Cole. Senator, I think it should weigh as a factor, and
it is, in fact, one of the factors that Assistant Attorney
General Kris had mentioned in his speech. But it is not the
only factor, and there are any number of factors that will go
into on any individual case the decision of where to bring it,
either in Article III or a military commission.
But certainly the issues that will be coming up and the
issues that will be presented, some of them may be more
settled. Some of them may not. But certainly the state of the
law and the state of the law in any given forum is certainly
one of the factors that should be looked at in making that
determination.
Senator Whitehouse. My time has concluded. I think we are
going to go into a second round. I would like to follow up on
some of the discussions that we have had, and I know Senator
Sessions has further questions. So, without further ado,
Senator Sessions.
Senator Sessions. Thank you. Mr. Chairman, with regard to
Dave Margolis, he was in the Department of Justice when I came
as an assistant--when I was a young assistant. He had been
there a long time, it seemed then, and he loves the
Department----
Senator Whitehouse. By the time I got there, he was there a
really long time.
Senator Sessions [continuing]. Is a leader in this
Department. He was always known as an independent guy. He had
long hair and he wore jeans around, but everybody knew of and
over the years came to respect so greatly his integrity.
I would submit for the record, in light of your comments, a
list of a host of former Department of Justice high officials
who wrote a letter defending him and his decisionmaking process
and his integrity just for the record.
Senator Whitehouse. Without objection.
[The information referred to appears as a submission for
the record.]
Senator Sessions. I do not think you were attacking his
integrity in any way, but----
Senator Whitehouse. No. Just disagreeing with the
conclusions he came to.
Senator Sessions. Well, I do not disagree with it, and it
was a decision that the Office of Legal Counsel made after a
great deal of research and effort, and it sought to give what
the President said he wanted, which was maximum--what is the
limits of my executive power. People have disagreed with how
far that memo went, but I think it had a basis.
I would say that Mr. Cole's op-ed, when he basically said
that military commissions are inconsistent with our spirit and
our Constitution, was in error. If he had done that as OLC, he
might have been subject to the same kind of second-guessing.
I want to get this straight. I know we are in a political
world and everybody has got different views about how we ought
to handle matters as a matter of policy, but there is a choice
between taking someone and treating them as a criminal who has
been arrested and an enemy who has been captured. You capture
enemies. You arrest criminals.
We have authorized a military force against al Qaeda, and
it is clear to me that anyone associated with al Qaeda that is
captured can be treated as a prisoner of war. And we did not
provide prisoners of war lawyers or speedy trials. They are
just held until the war is over. Every nation in the world does
that. That is consistent with our understanding of war.
So when you apprehend somebody who came right out of Yemen
with a bomb on his person, coming from an al Qaeda group,
determined to murder American citizens, that is not a normal
criminal. That is an enemy that has been captured. It seems to
me that it just makes common sense that the presumption would
be that that individual would be held as a combatant, an enemy
combatant. If they acted unlawfully, which he did in that case,
he could be tried by a military commission. But if you wanted
to talk to the individual about intelligence or other things,
he could be held as a prisoner of war and not provided a trial
by a military commission for as long as the war exists. Once
the war is over, they would be released, if not tried.
It also seems to me to be clear that once a person is in
military custody, they can be transferred to civilian custody
and tried in Federal court. But if you treat them as a civilian
from the time of the arrest, they have to be told they have a
right to remain silent, even though there might be some public
safety exception, which is very vague, maybe 50 minutes of
questioning of what I have seen so far, that he has a right to
a lawyer who will immediately tell him not to cooperate and not
to talk. He would be entitled to a speedy trial, at least
except for the exceptions that occur, and discovery of the
Government's case. Then you have to have a trial in a public
courtroom somewhere with jurors and security and guards on
buildings, which led, I believe, the mayor of Alexandria to
say, ``[n]o more. I do not want another one of those.'' You
cited the Moussaoui case, the 19th hijacker. That took 4\1/2\
years and was pretty much a circus. He had to be removed from
the courtroom three or four times.
In a military commission they can be held as a prisoner of
war. They can be given a lawyer and set for trial. They will
not be tried without a lawyer. They can be sent to civilian
court if that is the choice and that happens.
So the problem is that the Attorney General's commission
has said that all the prisoners at Guantanamo--I think there
are 170 or so now left. The presumption is that they will all
be tried in civilian courts, and that presumption seems to be
carrying over as to when people are arrested, as the Christmas
Day bomber. And that is putting us in the Miranda situation
that has to be done, in my view.
So I guess my question is: Will you evaluate that? Is it
still the Department of Justice policy that everybody at
Guantanamo is presumed to be tried in the civilian courts even
though they may have been captured on the battlefield in the
Middle East?
Mr. Cole. Senator, at least as I understand the protocols
that were developed for the review of the Guantanamo
detainees--and that review has largely been completed--had that
presumption, but it was not determinative, as I think has been
stressed time and time again, at least from the readings I have
done. It is a decision that is made based on a myriad of
factors, perhaps hundreds of factors. Each different fact
involved in the case, each different legal issue is going to be
evaluated and a determination of what is the most effective
place to try any of these people who are determined to be
tried.
Senator Sessions. Well, the Attorney General has said that,
and I can accept that to a degree, except that the people being
held in Guantanamo are held as military combatants, as
prisoners of war, initially at least, and still are, and they
can be, as you said, transferred to civilian court.
Why wouldn't we treat everybody we capture, at least
initially, as a prisoner of war, as a combatant that meets the
evidence of that? Why wouldn't we treat them like that and then
make our decision later as to whether to move them in Federal
court, thereby eliminating a lot of the immediate problems that
will arise instantly if you treat them as a civilian criminal?
Mr. Cole. Senator, you pose an important question. I think
there is, I would imagine, a great deal of thinking and
background that has been gone through within the Department of
Justice that I am not privy to that certainly has led to some
of these conclusions. I think the nature of what kinds of law
enforcement forces we have within the United States that could
operate and arrest the various people who are captured is part
of it. I think the determination in the first instance upon
arrest of whether or not somebody is part of al Qaeda or the
Taliban or associated with them may not be a very clear
determination that can be made right away, and there are issues
that will come into play there as to whether they are, in fact,
qualified to be treated as enemy combatants.
I think it is, from my own imagination, an incredibly
difficult and important issue that you raise, and I would have
to imagine that there has been a lot of background and thinking
already done in the Department on it.
Senator Sessions. Thank you. I do not know that. Maybe
there is. To me that would be maybe something we could all
reach an agreement on how to treat a person initially arrested,
and if they meet the standards of an enemy, I think we would be
better off without any doubt--I do not think it is a close
question. Without any doubt, we would be better treating them
under the military commissions until we decide otherwise.
Senator Whitehouse. A vote went off 6 or 7 minutes ago, so
we will have to bring this hearing to a conclusion. The record
will remain open for an additional week, I believe, and I will
follow up on the questions that I had in the form of written
questions for the record.
One thing I would like to mention in closing, though, is
that there has been a certain amount of discussion about what
took place down in the gulf, out at the Deepwater Horizon and
this geyser of oil that is spouting into the gulf right now.
And one thing that strikes me is that--are you familiar with
the doctrine of regulatory capture?
Mr. Cole. I have heard it. I am not intimately familiar
with it, Senator Whitehouse.
Senator Whitehouse. The MMS was the subject of what would
be described as ``regulatory capture.'' There was quite a good
reference to that in the Wall Street Journal the other day on
the op-ed page by a senior fellow of the Cato Institute. We do
not often agree, but we do agree on this.
I think there is a role for the Department of Justice in
protecting the Government of the United States against
regulatory capture, against protecting components of the
Government of the United States from becoming the tools or the
servants or the puppets of the industry that they are supposed
to be regulating. So I would ask you to think--you have spent
time in the private sector; you have spent time at the
Department--in your role as Deputy Attorney General about how
the Attorney General might best perform a role of assuring the
American people that the Department of Justice can and will
protect the public--and, frankly, the integrity of Government--
when in some far off precinct of the Government, this
phenomenon of regulatory capture has been allowed to occur. And
I would appreciate it if you would give that some thought, and
we can talk about it later. But I know we have to rush to the
vote, so thank you very much, and thanks to your family----
Senator Sessions. Could I add one thing? Senator Grassley
had some questions about your actions as monitor of AIG during
the time that led up and including the time that they
collapsed, and I did, too. I noticed that Whistle Blogger,
Corporate Counsel, Wall Street Journal has been somewhat
critical or questioning of how you conducted that, being the
Federal Government person sitting in the middle of that
company, supposedly monitoring it, when all these things
occurred. So I guess the time is such we cannot ask that today.
I appreciated the opportunity to talk with you about it
yesterday a little bit. But we will submit written questions,
Mr. Chairman. Thank you.
[The questions appear as a submission for the record.]
Senator Sessions. Thank you.
Senator Whitehouse. I thank the Ranking Member, and the
hearing is adjourned.
[Whereupon, at 11:58 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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