The US Senate Judiciary Committee began its confirmation proceedings this morning for Judge Michael Mukasey, Bush's nominee for US Attorney General. The following are my notes from this afternoon's festivities. My summary of this morning's hearing can be found here.
NOTES: (a) this is not a transcript! Time 'stamps' indicate the time of posting.
(b) "Muk" refers to Michael Mukasey ;)
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3:03 PM
Sen. Sam Brownback (R-Kansas): civil liberties in the US; you have been a Judge in some key cases, so you might be able to help us sort out our need to collect intelligence and our need & desire to protect civil liberties of people in the US. We're at a tough moment, particularly with the nature of the world becoming flatter and flatter (ugh! who invited Tom Friedman?!)
Brownback: [in your role as a Federal Judge, you didn't rely on an expansive reading of executive power, but rather balanced [this consideration with] civil liberties. For the record, does this remain your general view of what we need to do, and what you need to do as AG?
Muk: yes it does.
Brownback: On Sept 26, 2007, a district judge in Oregon struck down 2 provisions of the PATRIOT act. What's your response?
Muk: haven't looked at the ruling in detail. Know ruling only as durable as appeal to the Sup Crt. This is hardly the last word.
Brownback: any criticisms of PATRIOT act that this cmtee should know about?
Muk: none that come readily to mind...the abstract is a very bad place to decide from. The best policy is to be guided by gen principles but you have to wait till a specific real-life situation presents itself.
Brownback: give us a preview of your advice and counsel. Can't give specific case, but is there anything you could tell us to illuminate this balance of security/liberties?
Muk: need clear idea of what it is we're protecting, when talking about civil liberties, as well as need to collect intel. Free speech rights very much intact (!!!). People concerned about privacy, but people need to know it is very much like what law-enforcement does in investigating cases. Not talking about anything very difft from general law invest.
Brownback: terrorism and law enforcement pretty similar? Basic mindset?
Muk: yes.
Brownback: trial of Blind Sheikh, 1993 WTC bombing, lead co-defendent claimed actions governed by Islamic law. You declared that irrelevant. 2nd Circuit agreed. You remember?
Muk: yes. Point of ruling: issue before jury wasn't Islamic law but what was in Sheikh's mind at time. Obligations not under Islamic law.
Brownback: certain countries say Sharia law trump civil/general law, e.g. German judge rejecting battered Moroccan woman's right to a divorce (b/c Sharia forbids it). What would you do in the US?
Muk: can't create "enclaves" of diff law. Need one system of laws. Would resist that very firmly.
Brownback: that's the right way to look at it. It's troubling that these things are coming forward in Western countries. Constitution governs all of us. Sen. Hatch brought up some of the cases on pornography (again!) that I spoke to you in private about (Ooooh...I'll bet!)
Brownback: prison recidivism...a number of us are working on the "Second Chance Act"; 2/3 time you're returning to jail, revolving door of prison system. Bipartisan proposal, series of funding efforts to cut recidivism, some are faith based, some are mentoring programs, relationship building. Your support of this effort?
Muk: prisons can be recruitment or "higher education" for criminality; want prisoners to be released as productive citizens. Seen as last priority, right now.
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3:16 PM
Sen. Schumer (D-NY): Mukasey told me that he was "enjoying the debate" (during the recess)
Schumer: judicial independence: Goldsmith wrote "Terror Presidency," which I know you're familiar with; details pressures on Goldsmith by admin, who wanted him to justify what he thought wasn't right. Your opinion?
Muk: couldn't put it down. "It was superb"
Schumer: Hope you don't have to write one
Muk: don't have a book in me
Schumer: Military Commissions, meeting w/Paul Clement (p 124); Goldsmith asks why not just go to Congress and get support. Addington asked "why are you trying to give away the Pres's power?" Do you think working with Congress increases Pres's power?
Muk: generally yes.
Schumer: you will work with Congress on National Security courts?
Muk: it is Congress's power.
Schumer: new surveillance tools, e.g. outside of FISA? or will you stretch or ignore FISA?
Muk: I'm not in favour of stretching or ignoring. Not aware of what's involved right now.
Schumer: so if pushed by admin, you would go to Congress?
Muk: yes
Schumer: Goldsmith said Pres and OVP wanted to make exec stronger than what they found it. "Borrowed against the power of future presidencies" and that future pres would be viewed w/suspicion b/c of Bush/Cheney. What attitude will you bring? Unilateralism is a bad idea?
Muk: Unilateralism across the board is a bad idea.
Schumer: when you're in the Oval office w/Pres, will you go along w/unilateral approach?
Muk: I'll do what constitution mandates. For all my endorsement of bilateralism, there are some authorities...if we're talking about a marginal subject, I will try to have a bias in favour of getting Congress on-side.
Schumer: refreshing change. Also: Goldsmith felt some opinions were "sloppily reasoned"; you said you'd review old OLC opinions, detention, surveillance? Torture?
Muk: yes. Uh....I don't know of any such policy on torture, and I hope I don't find any.
Schumer: you will modify, correct it or withdraw it?
Muk: if my view after consideration w/other people is that it has to be changed, then it will be changed.
Schumer: will you inform the congress?
Muk: have to be very, very carefully about what I do publicly...before I make a categorical promise about changing a policy.
Schumer: if poss, will you do it publicly so that we're all stronger?
Muk: hope so.
Schumer: I take it you knew Jim Comey when he was in NY Southern Dist?
Muk: I thought it was (performance) admirable
Schumer: May 2005 speech of Comey, difficulty of saying "NO". Will you have courage to say no to the Pres, if that's your judgement?
Muk: yes.
Schumer: even if Addington warns "blood will be on your hands?"
Muk: yes
Schumer: if Pres insists on proceeding nonetheless?
Muk: I'll either talk them out of it or push away from the table and leave.
Schumer: exec privilege....one area I think we had some disagreement. Many of us felt admin went too far w/USAtty investigation, e.g. when third party, chairman of New Mexico GOP (Allan Weh) reached out to somebody in the admin for exec privilege. Never heard of such a reach of privilege (3rd party). What's your view of this?
Muk: looked at letter, quickly, and don't know the facts relating to the chairman of the NM GOP, who called whom and why; w/in the exec, there has to be the ability to gather facts, and b/c of this, there may be some question of privilege. Will admit to you that my 1st rxn was "HUH?" (ROTFL!)
Schumer: Just keep "HUH"ing on that
Leahy: on torture, if you find something inappropriate, you will have an opportunity to discuss this further with us. You'll have had a chance to review old docs. Never hesitate to bounce ideas off Sen Specter or myself. The offer remains to your predecessor and he never took us up on it.
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3:29 PM
Sen. Cornyn (R-Texas): as I was reading some of the things that you've written...I was a member of the "Recovering Judge Caucus"....I admired your choice of "the spirit of liberty...the spirit that's not too sure that it's right"; you were talking about the PATRIOT act, and asked that critics should read it before attacking it. Recreational hysteria. I was reminded that the standard of proof in a court of law is substantially more rigorous than in general, e.g. in Congress. But the one thing that I wanted to ask you about here, you point out that the PA broke down "the wall" btwn intel gathering and law enforcement, and that the previous sharing of info had been a stark misreading of the law. Why do you think there's been an inability to communicate to the public btwn a crim law paradigm and a military paradigm in the War on Terra?
Muk: NB generally for gov to make the case to the public. I'd like, if confirmed, the opportunity to do that; not a speechifying tour but I think I need to make the case that we do things w/in the law.
Cornyn: goal in fighting war is to prevent terrorist attacks from occurring. In 1993 WTC bombing case, a list of some >100 unindicted co-conspirators found its way to Sudan, due to the fact that this was conserved under criminal law; list included bin Laden, but couldn't be shared with CIA b/c it was the result of a criminal investigation.
Muk: yes, this was an unintended consequence of criminal law.
Cornyn: reporters shield law proposed has a provision for qualified privilege; I'm concerned (w/Durbin and Feinstein) that the def'n is so broad that it would cover virtually anyone who shares info; jihadist posts an english transl'n and lists 100s of links to websites for insurgent videos. Case of 21 y/o American, North Carolina (NY Times "An Internet Jihad aims at US Viewers"): breadth of def'n of qualified privilege to anyone who calls themself a journalist. Concerns?
Muk: that's one of my concerns.
Cornyn: others?
Muk: even if you narrow the def'n, I've met a reporter for a Soviet paper where most reporters were KGB agents, working full time for paper and other things; same could be true for some Chinese papers, for e.g. or some involved in terrorist organization. Could erect structure around them to present self as a journo, protected by law; Also concerned about proof having to present, danger journo under if information shared w/law enforcement.
Cornyn: Familiar w/"Project Exile"--prosecuting gun crimes for felons and going after gun-crime in addition to whatever other crimes committed; gave rise to Texas Exile, successful collab to persuade criminals to leave guns at home. Imprisonment for gun-crimes. "Project Safe Neighborhoods" program in DoJ. Asking for your support on prosecuting gun-crimes and reducing violence w/gang and drug activities.
Muk: Sure.
Cornyn: anomaly, prosecution of 2 border patrol agents who shot a drug dealer on border of Texas/Mexico; b/c used gun in action, received auto 10 yr+ sentence (this is Lou Dobbs' latest bugaboo). Does this law unfairly impact law enforcement officials?
Muk: very difficult case. I will.
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3:42 PM
Sen. Dick Durbin (D-Illinois): I will be clarifying where you stand on several things discussed in my office, weeks ago. On torture: "there's a whole lot between pretty please and torture" (AAAAAH! *shudder*)
Durbin: will you now acknowledge that it's against our nature to subject detainees to cruel, inhuman and degrading tx?
Muk: no doubt. Illegal.
Durbin: I asked you about McCain statute on Torture; you said "there could be a point where Pres's constitutional authority could override the statute"
Muk: I don't recall saying that, particularly about the McCain statute. There is some authority that the Pres has, that he has "WILLY NILLY." Some statutes have been found unconstitutional, encroaching on Pres powers, eg War Powers. Mercifully, we have never come to a test of that. Each branch has understood that "push can't come to shove on certain issues"..."not everbody gets everything they want"...
Durbin: do you believe the McCain statute is an unconstitutional infringement on the power of pres?
Muk: no
Durbin: GTMO you have said it was "used by critics of admin"...."detainees receive three hots and a cot..." etc. and talked up conditions at GTMO. After your responses to Sen. Kohl suggest that you don't still feel this way.
Muk: I don't think people have been mistreated there but there's a perception problem. Getting ownership of the problem is difficult.
Durbin: mistreatment is a matter of interpretation? Detention w/o due process is yet another issue of mistreatment, as habeas corpus?
Muk: Mistreatment in the eye of the beholder. Under Hamdi, it is lawful for the Pres to detain people on field of battle (even USians) indefinitely. [Note: not to be confused with Hamdan v. Rumsfeld, a different case] Doesn't mean it's a wise thing to do, hurts us with allies and might not pay to carry forward the principle...
Durbin: Office of Legal Counsel (OLC) Mr. Bradbury: I have a HOLD on his nomination, due to his refusal to provide memos on detainees, even those leaked to NY Times. The Office of Professional Responsibility investigated NSA program, Bush denied security clearances to investigators; the office of Mr. Bradbury was being investigated, in particular. Sen. Feingold and I have asked Bush to remove the interim appointment of Mr. Bradbury. You agree that this is inappropriate?
Muk: not heard of this investigation. Know of an OIG invest into NS letters, but don't know of investigation by OPR/DoJ. Aware of how relatively easy it is to have an OPR investigation b/c of an opinion.
Durbin: please reflect and provide a response later.
Durbin: as AG, one issue is that of race and justice in America. What initiative would you take to address issue?
Muk: can't entertain the view that we'll attain closure in my lifetime, or tenure; Civil rights division is part of a movement/process that is "genius in our politics" that a "stain on our history" can be "wiped out by the use of the law" rather than by bombs etc. I will make certain that division...that people there understand that that's the mandate.
Durbin: that division has very low morale; hope you'll dedicate yourself to restoring morale, give them tools to restore reputation etc.
Muk: have run into lawyers from this division; they were "energized, focused, very happy and pleased in their task"..."characterized by people in their division, that department"
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3:55 PM
Sen. Lindsey Graham (R-SC): was 911 criminal act or act of war?
Muk: act of war.
Graham: I think we're at war. Law that applies is difft. I've been a JAG for years (mil lawyer), and I know that means you still have due process. As for enemy combatants, detention, interrogation rules....Sup Crt in Hamdan case said Geneva Convention applies. You agree?
Muk: if applies to interrogation?
Graham: Common Article III applies to WoT (Graham disagrees w/Sup crt)
Muk: (confused)
Graham: you can come back in writing.
Graham: Uniformed Code Mil. Justice covers treatment of detainees. Should we place restrictions on our military in dealing w/detainees? The UCMJ regulates conduct/treatment of detainees found on battlefield. The Mil Commissions Act regulates detention/treatment prisoners. Do you agree that that's a valid doc?
Muk: yes
Graham: Many int'l treaties regulating conduct. Are we obliged?
Muk: yes, but question of whether self-executing or not...
Graham: Congress and admin fighting about what roles we play in war-time. Applaud your testimony earlier about US "strongest when all three branches on same sheet of music"
Graham: would you advise Pres to allow unlawful enemy combatants to have habeas rights?
Muk: I would not advise granting of rights beyond what they already have...there's an appeal...
Graham: who should det status of pot'l enemy combatant? Under Article 5 Geneva, that belongs to military. Under MCA The power to det status would be given to federal judge, and not to the military and I object to that. My concern is if every enemy combatant to have full blown habeas rights, would have "chaos for our country in the war on terra"
Graham: quoting Jackson (?)
Graham: MCA, every detainee at GTMO would have access to Fed courts. The DC circuit court of appeals could look at these cases. True?
Muk: yes.
Graham: like Padilla case?
Muk: I believe so
Graham: why not provide mil legal counsel to unlawful enemy combatants. Ok?
Muk: don't know what process is now. In Padilla case, once someone has habeas, you have to give them a lawyer.
Graham: could have de facto life sentence, so we need a hybrid situation btwn mil and federal courts.
Graham: Americans (some) believe law is a "nicety" or a "weakness" but I believe the law is one of the most powerful things in our arsenal. Do you agree?
Muk: yes.
Graham: wouldn't it be nice to show (muslims) that there's no better way to lead the world on WoT to treat them in line with our values, let them know that whatever happened to combatant wasn't result of anger or revenge but was rather the result of due process and law.
Muk: as long as we don't compromise our ability to gather intelligence.
Graham: we do have to live w/in law applying; allegations to KSM waterboarding. I have no doubt that he did what he said he did, at least in the portion I observed, where they didn't lay a hand on him.
Muk: I wouldn't be comfortable using any evidence that was gathered under coersive techniques like that.
Graham: maybe one of our guys or gals would be caught in Iran, and a trial in Iran, the judge would receive info never shared w/accused, person sent to death, and we'd lose right to object. What we do now could come back to haunt us in other wars, you agree?
Muk: (pause) I agree with that.
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4:09 PM
Leahy: you are not suggesting that we compromise our ability to gather evidence if we don't torture? (followup on Graham question)
Muk: no
Leahy: if we have a Usian serial murderer, brought before you, there's a confession produced by 3 days of torture; you wouldn't allow that confession?
Muk: right.
Sen. Sheldon Whitehouse (D-RI): recognizes Director Freeh (former dir of FBI). Whitehouse used to work w/Freeh in R.I. (Acknowledges others in the room)
Whitehouse: worried about the DoJ. It is has sustained sig damage. Not convinced that simply replacing person at top is sufficient to cure problems (even though necessary). First, say a few words on your view of the role of the DoJ in USA.
Muk: uphold rule of law.
(...)
Whitehouse: there are other, structural problems at DoJ. Interactions w/White House (Bush/Cheney) totally inappropriate, even though contact was supposed to be restricted. Appt. of USAttys, staffing rules need to be re-worked after abuses.
Whitehouse: Goldsmith's book on OLC said "norms and practices" had been gutted or ignored. Which practices, rules etc need to be restored?
Muk: my approach has always been "hands on" so that I don't get surprised. I will do the same at DoJ. There's an advisory cmtee of USAttys that do or should meet regularly w/AG so that the AG knows what's going on at each office, maintain uniformity of standards.
Whitehouse: urge you to take this discussion and perform a "formal damage assessment" at DoJ and "see what needs to be put right." e.g. memos that widely opened DoJ investigations to White House and other officials, counter to recent traditions and WH counsel; discovered manual had been re-written (Feinstein); may be 100s of other such matters.
Muk: there is a v. small list of people who can be contacted by anyone who's an elected official about a case.
Whitehouse: including the Pres?
Muk: most emphatically, including the Pres.
Whitehouse: and that manual that Feinstein discovered?
Muk: clear as you get closer to an election, that window has to close, and the people investigating can't announce/disclose within that window.
Leahy: 5 min break
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4:37 PM
Sen. Ben Cardin (D-Maryland): impressed, impressed, impressed, IM-PRESSED w/Mukasey so far (Ok, ok, we get it)
Cardin: ...but concerned w/Civil Rights division. I usually judge how a company or employer does by the facts. If support diversity, but see v. few minorities, for e.g. Similarly, disappointed w/low number of cases brought to help minorities, right to vote, employment, housing (compared to previous administrations). What will you do to make this division to make it the place it needs to be? What is your plan to fill vacant position? Will you find someone with a background in civil rights law? Someone respected?
Muk: I spoke to current Head of division and Grace Cheung Becker (sp?) who impressed me during our conversation, not only w/familiarity w/law and what the division was doing. I was very well impressed w/her. If someone with her calibre stepped forward to undertake leadership of that dept...
Cardin: Pres will rely heavily on your views, for all vacancies at DoJ...I would feel more comfortable to hear your priorities on Civil Rights Division.
Muk: Historic and Current mandates...prosecution of hate-crimes is a current one, for e.g. The division is very actively involved in this.
Cardin: hate-crime episodes have increased dramatically, e.g. in University of Maryland, lot of new episodes very disturbing, not only w/race, religion, sexual orientation. Glad you will be aggressive in this area. We have a bill in Congress to strengthen this law, and I think DoJ can help.
Cardin: about election law...Civil Rights div has traditionally worked to remove obstacles to franchise; major shift to prevent "fraud," rather than remove obstacles to participation. e.g. Georgia voter ID--no examples provided of voters defrauding election. Went ahead, against advice of attorneys, disenfranchised minorities, homeless of their right to vote. Will your priority be the trad'l role (removing obstacles) or more to try to do Georgia-type Voter ID laws.
Muk: not an "either/or" proposition. Need to provide access and prevent fraudulent voting (Bullshit!)
Muk: one joyful duty as judge was the swearing-in of new citizens. Nobody who votes wants to see their vote diluted by someone who's not entitled to vote. (Who's "seen" that, exactly?!)
Cardin: do you agree w/Georgia decision that said Voter ID was "modern day Poll Tax"?
Muk: I think if ID is made available and accessible, informed of availability, then to say it's the Modern day equiv of Poll tax too much...
Cardin: these ID cards difficult or offensive if you're homeless, minority, disabled. [Note: they don't work, either, b/c there's no evidence of vast voting ID fraud!]
Muk: have to get these cards to everybody. Shouldn't be difficult to have.
Cardin: want Civil Rights division to put energy into access to voting, not towards disenfranchising.
Cardin: new problems in election procedures, e.g. effort to disenfranchise voters, with bad information distributed (wrong dates given to voters, targetting minorities about "if you have parking tickets, can't vote" etc. There's legislation by Obama, Schuster (sp?) trying to combat this kind of thing.
Muk: I certainly would. That is fraud.
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4:53 PM
Sen. Jeff Sessions (R-Alabama): do you feel that you need to articulate Pres's positions if you agree with them? Are you ready to give us honest, straight answers, to "the legit prerogatives of executive branch?"
Muk: I do.
Sessions: you're a man of the law (quoting Schumer), have great experience, so you can help those risking their lives for us, executing policies NB to us, they don't need to be denied the intelligence...some of these issues are tough, but we have a lot of legitimate powers, but I hope that you'll be effective at articulating that, so that we can be safer.
Sessions: need to find a lot of "top flight people" to staff your Dept. Don't hesitate to stand up to the Congress, with some of the legislation that gets passed. After 911, PATRIOT act, there was no disagreement that the law that prohibited our intel officials from [discussing things] was a bad idea; laws to protect civil liberties (some) were a big mistake and ended up causing 911 (WTF?!)
Muk: I am not a bashful person and I will speak up as needed.
Sessions: immigration debate...matter had been "bubbling"...people spoke clearly, they wanted a lawful system of immigration. Committed to a lawful system. Believe that's a good goal?
Muk: I do.
Sessions: I believe that the US people would like to hear you say something about your commitment to that. We arrested a million people last year who attempted to enter the country illegally. What steps will you take?
Muk: this is a nation of immigrants. FDR began w/salutation, "MY fellow immigrants..."; my father was an immigrant. The immigration/border problem is an aspect of the success that we've been. Need to control that for a wide variety of reasons, including maintaining our national security. Can't have a "try again" system. "Catch and release" has brought us trouble. In Del Rio, initiative was successful in some misdemeanor prosecutions, so good to followup on if we have the resources. Not talking about filling up jails with people who try to cross the border.
Sessions: seen 2 areas of border where misdemeanor prosecutions have been brought, one area 50% decline and another area 70% decline; amendment would allow us to expand that program. Perhaps like "Broken Windows" program in NY (squeegee kids), start with these little programs and expanding them. What do you think?
Muk: will look at it, but need to work with Homeland Security, as it's their jurisdiction too.
Sessions: can create an impression that our borders are no longer open, that we ARE serious about it, that even misdemeanors can be effective. You're aware that fed law requires deportation of criminal illegal aliens (commit crime while here illegally); not being enforced well now. At least 1/2 are in jail but won't be removed. Gonzales said DHS/DoJ cooperation is inadequate. Can we effectively ID those who've committed violent crimes, drug dealing and the like?
Muk: will look at it. Have to consult w/country of origin, as they might not be eager to have them back.
Sessions: but Specter suggested we could stop entry from certain countries if their citizens commit crimes.
Sessions: hope you don't ignore Voting Fraud.
Muk: I will not ignore it.
Leahy: a number of your answers indicate that political influence has no place in law enforcement. Tomorrow we will start w/Sen. Specter and I, but there will be no opening stmts. Go back to question of Exec Privilege and resolve a few other matters. I would urge Sens who wish to ask questions to BE here tomorrow (*snerk*).
Leahy: we will have a panel of experts here tomorrow, too. But it's been a long day, Judge.
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Recess till tomorrow...
(first compiled on this message board, but w/o links etc.)
NOTES: (a) this is not a transcript! Time 'stamps' indicate the time of posting.
(b) "Muk" refers to Michael Mukasey ;)
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3:03 PM
Sen. Sam Brownback (R-Kansas): civil liberties in the US; you have been a Judge in some key cases, so you might be able to help us sort out our need to collect intelligence and our need & desire to protect civil liberties of people in the US. We're at a tough moment, particularly with the nature of the world becoming flatter and flatter (ugh! who invited Tom Friedman?!)
Brownback: [in your role as a Federal Judge, you didn't rely on an expansive reading of executive power, but rather balanced [this consideration with] civil liberties. For the record, does this remain your general view of what we need to do, and what you need to do as AG?
Muk: yes it does.
Brownback: On Sept 26, 2007, a district judge in Oregon struck down 2 provisions of the PATRIOT act. What's your response?
Muk: haven't looked at the ruling in detail. Know ruling only as durable as appeal to the Sup Crt. This is hardly the last word.
Brownback: any criticisms of PATRIOT act that this cmtee should know about?
Muk: none that come readily to mind...the abstract is a very bad place to decide from. The best policy is to be guided by gen principles but you have to wait till a specific real-life situation presents itself.
Brownback: give us a preview of your advice and counsel. Can't give specific case, but is there anything you could tell us to illuminate this balance of security/liberties?
Muk: need clear idea of what it is we're protecting, when talking about civil liberties, as well as need to collect intel. Free speech rights very much intact (!!!). People concerned about privacy, but people need to know it is very much like what law-enforcement does in investigating cases. Not talking about anything very difft from general law invest.
Brownback: terrorism and law enforcement pretty similar? Basic mindset?
Muk: yes.
Brownback: trial of Blind Sheikh, 1993 WTC bombing, lead co-defendent claimed actions governed by Islamic law. You declared that irrelevant. 2nd Circuit agreed. You remember?
Muk: yes. Point of ruling: issue before jury wasn't Islamic law but what was in Sheikh's mind at time. Obligations not under Islamic law.
Brownback: certain countries say Sharia law trump civil/general law, e.g. German judge rejecting battered Moroccan woman's right to a divorce (b/c Sharia forbids it). What would you do in the US?
Muk: can't create "enclaves" of diff law. Need one system of laws. Would resist that very firmly.
Brownback: that's the right way to look at it. It's troubling that these things are coming forward in Western countries. Constitution governs all of us. Sen. Hatch brought up some of the cases on pornography (again!) that I spoke to you in private about (Ooooh...I'll bet!)
Brownback: prison recidivism...a number of us are working on the "Second Chance Act"; 2/3 time you're returning to jail, revolving door of prison system. Bipartisan proposal, series of funding efforts to cut recidivism, some are faith based, some are mentoring programs, relationship building. Your support of this effort?
Muk: prisons can be recruitment or "higher education" for criminality; want prisoners to be released as productive citizens. Seen as last priority, right now.
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3:16 PM
Sen. Schumer (D-NY): Mukasey told me that he was "enjoying the debate" (during the recess)
Schumer: judicial independence: Goldsmith wrote "Terror Presidency," which I know you're familiar with; details pressures on Goldsmith by admin, who wanted him to justify what he thought wasn't right. Your opinion?
Muk: couldn't put it down. "It was superb"
Schumer: Hope you don't have to write one
Muk: don't have a book in me
Schumer: Military Commissions, meeting w/Paul Clement (p 124); Goldsmith asks why not just go to Congress and get support. Addington asked "why are you trying to give away the Pres's power?" Do you think working with Congress increases Pres's power?
Muk: generally yes.
Schumer: you will work with Congress on National Security courts?
Muk: it is Congress's power.
Schumer: new surveillance tools, e.g. outside of FISA? or will you stretch or ignore FISA?
Muk: I'm not in favour of stretching or ignoring. Not aware of what's involved right now.
Schumer: so if pushed by admin, you would go to Congress?
Muk: yes
Schumer: Goldsmith said Pres and OVP wanted to make exec stronger than what they found it. "Borrowed against the power of future presidencies" and that future pres would be viewed w/suspicion b/c of Bush/Cheney. What attitude will you bring? Unilateralism is a bad idea?
Muk: Unilateralism across the board is a bad idea.
Schumer: when you're in the Oval office w/Pres, will you go along w/unilateral approach?
Muk: I'll do what constitution mandates. For all my endorsement of bilateralism, there are some authorities...if we're talking about a marginal subject, I will try to have a bias in favour of getting Congress on-side.
Schumer: refreshing change. Also: Goldsmith felt some opinions were "sloppily reasoned"; you said you'd review old OLC opinions, detention, surveillance? Torture?
Muk: yes. Uh....I don't know of any such policy on torture, and I hope I don't find any.
Schumer: you will modify, correct it or withdraw it?
Muk: if my view after consideration w/other people is that it has to be changed, then it will be changed.
Schumer: will you inform the congress?
Muk: have to be very, very carefully about what I do publicly...before I make a categorical promise about changing a policy.
Schumer: if poss, will you do it publicly so that we're all stronger?
Muk: hope so.
Schumer: I take it you knew Jim Comey when he was in NY Southern Dist?
Muk: I thought it was (performance) admirable
Schumer: May 2005 speech of Comey, difficulty of saying "NO". Will you have courage to say no to the Pres, if that's your judgement?
Muk: yes.
Schumer: even if Addington warns "blood will be on your hands?"
Muk: yes
Schumer: if Pres insists on proceeding nonetheless?
Muk: I'll either talk them out of it or push away from the table and leave.
Schumer: exec privilege....one area I think we had some disagreement. Many of us felt admin went too far w/USAtty investigation, e.g. when third party, chairman of New Mexico GOP (Allan Weh) reached out to somebody in the admin for exec privilege. Never heard of such a reach of privilege (3rd party). What's your view of this?
Muk: looked at letter, quickly, and don't know the facts relating to the chairman of the NM GOP, who called whom and why; w/in the exec, there has to be the ability to gather facts, and b/c of this, there may be some question of privilege. Will admit to you that my 1st rxn was "HUH?" (ROTFL!)
Schumer: Just keep "HUH"ing on that
Leahy: on torture, if you find something inappropriate, you will have an opportunity to discuss this further with us. You'll have had a chance to review old docs. Never hesitate to bounce ideas off Sen Specter or myself. The offer remains to your predecessor and he never took us up on it.
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3:29 PM
Sen. Cornyn (R-Texas): as I was reading some of the things that you've written...I was a member of the "Recovering Judge Caucus"....I admired your choice of "the spirit of liberty...the spirit that's not too sure that it's right"; you were talking about the PATRIOT act, and asked that critics should read it before attacking it. Recreational hysteria. I was reminded that the standard of proof in a court of law is substantially more rigorous than in general, e.g. in Congress. But the one thing that I wanted to ask you about here, you point out that the PA broke down "the wall" btwn intel gathering and law enforcement, and that the previous sharing of info had been a stark misreading of the law. Why do you think there's been an inability to communicate to the public btwn a crim law paradigm and a military paradigm in the War on Terra?
Muk: NB generally for gov to make the case to the public. I'd like, if confirmed, the opportunity to do that; not a speechifying tour but I think I need to make the case that we do things w/in the law.
Cornyn: goal in fighting war is to prevent terrorist attacks from occurring. In 1993 WTC bombing case, a list of some >100 unindicted co-conspirators found its way to Sudan, due to the fact that this was conserved under criminal law; list included bin Laden, but couldn't be shared with CIA b/c it was the result of a criminal investigation.
Muk: yes, this was an unintended consequence of criminal law.
Cornyn: reporters shield law proposed has a provision for qualified privilege; I'm concerned (w/Durbin and Feinstein) that the def'n is so broad that it would cover virtually anyone who shares info; jihadist posts an english transl'n and lists 100s of links to websites for insurgent videos. Case of 21 y/o American, North Carolina (NY Times "An Internet Jihad aims at US Viewers"): breadth of def'n of qualified privilege to anyone who calls themself a journalist. Concerns?
Muk: that's one of my concerns.
Cornyn: others?
Muk: even if you narrow the def'n, I've met a reporter for a Soviet paper where most reporters were KGB agents, working full time for paper and other things; same could be true for some Chinese papers, for e.g. or some involved in terrorist organization. Could erect structure around them to present self as a journo, protected by law; Also concerned about proof having to present, danger journo under if information shared w/law enforcement.
Cornyn: Familiar w/"Project Exile"--prosecuting gun crimes for felons and going after gun-crime in addition to whatever other crimes committed; gave rise to Texas Exile, successful collab to persuade criminals to leave guns at home. Imprisonment for gun-crimes. "Project Safe Neighborhoods" program in DoJ. Asking for your support on prosecuting gun-crimes and reducing violence w/gang and drug activities.
Muk: Sure.
Cornyn: anomaly, prosecution of 2 border patrol agents who shot a drug dealer on border of Texas/Mexico; b/c used gun in action, received auto 10 yr+ sentence (this is Lou Dobbs' latest bugaboo). Does this law unfairly impact law enforcement officials?
Muk: very difficult case. I will.
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3:42 PM
Sen. Dick Durbin (D-Illinois): I will be clarifying where you stand on several things discussed in my office, weeks ago. On torture: "there's a whole lot between pretty please and torture" (AAAAAH! *shudder*)
Durbin: will you now acknowledge that it's against our nature to subject detainees to cruel, inhuman and degrading tx?
Muk: no doubt. Illegal.
Durbin: I asked you about McCain statute on Torture; you said "there could be a point where Pres's constitutional authority could override the statute"
Muk: I don't recall saying that, particularly about the McCain statute. There is some authority that the Pres has, that he has "WILLY NILLY." Some statutes have been found unconstitutional, encroaching on Pres powers, eg War Powers. Mercifully, we have never come to a test of that. Each branch has understood that "push can't come to shove on certain issues"..."not everbody gets everything they want"...
Durbin: do you believe the McCain statute is an unconstitutional infringement on the power of pres?
Muk: no
Durbin: GTMO you have said it was "used by critics of admin"...."detainees receive three hots and a cot..." etc. and talked up conditions at GTMO. After your responses to Sen. Kohl suggest that you don't still feel this way.
Muk: I don't think people have been mistreated there but there's a perception problem. Getting ownership of the problem is difficult.
Durbin: mistreatment is a matter of interpretation? Detention w/o due process is yet another issue of mistreatment, as habeas corpus?
Muk: Mistreatment in the eye of the beholder. Under Hamdi, it is lawful for the Pres to detain people on field of battle (even USians) indefinitely. [Note: not to be confused with Hamdan v. Rumsfeld, a different case] Doesn't mean it's a wise thing to do, hurts us with allies and might not pay to carry forward the principle...
Durbin: Office of Legal Counsel (OLC) Mr. Bradbury: I have a HOLD on his nomination, due to his refusal to provide memos on detainees, even those leaked to NY Times. The Office of Professional Responsibility investigated NSA program, Bush denied security clearances to investigators; the office of Mr. Bradbury was being investigated, in particular. Sen. Feingold and I have asked Bush to remove the interim appointment of Mr. Bradbury. You agree that this is inappropriate?
Muk: not heard of this investigation. Know of an OIG invest into NS letters, but don't know of investigation by OPR/DoJ. Aware of how relatively easy it is to have an OPR investigation b/c of an opinion.
Durbin: please reflect and provide a response later.
Durbin: as AG, one issue is that of race and justice in America. What initiative would you take to address issue?
Muk: can't entertain the view that we'll attain closure in my lifetime, or tenure; Civil rights division is part of a movement/process that is "genius in our politics" that a "stain on our history" can be "wiped out by the use of the law" rather than by bombs etc. I will make certain that division...that people there understand that that's the mandate.
Durbin: that division has very low morale; hope you'll dedicate yourself to restoring morale, give them tools to restore reputation etc.
Muk: have run into lawyers from this division; they were "energized, focused, very happy and pleased in their task"..."characterized by people in their division, that department"
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3:55 PM
Sen. Lindsey Graham (R-SC): was 911 criminal act or act of war?
Muk: act of war.
Graham: I think we're at war. Law that applies is difft. I've been a JAG for years (mil lawyer), and I know that means you still have due process. As for enemy combatants, detention, interrogation rules....Sup Crt in Hamdan case said Geneva Convention applies. You agree?
Muk: if applies to interrogation?
Graham: Common Article III applies to WoT (Graham disagrees w/Sup crt)
Muk: (confused)
Graham: you can come back in writing.
Graham: Uniformed Code Mil. Justice covers treatment of detainees. Should we place restrictions on our military in dealing w/detainees? The UCMJ regulates conduct/treatment of detainees found on battlefield. The Mil Commissions Act regulates detention/treatment prisoners. Do you agree that that's a valid doc?
Muk: yes
Graham: Many int'l treaties regulating conduct. Are we obliged?
Muk: yes, but question of whether self-executing or not...
Graham: Congress and admin fighting about what roles we play in war-time. Applaud your testimony earlier about US "strongest when all three branches on same sheet of music"
Graham: would you advise Pres to allow unlawful enemy combatants to have habeas rights?
Muk: I would not advise granting of rights beyond what they already have...there's an appeal...
Graham: who should det status of pot'l enemy combatant? Under Article 5 Geneva, that belongs to military. Under MCA The power to det status would be given to federal judge, and not to the military and I object to that. My concern is if every enemy combatant to have full blown habeas rights, would have "chaos for our country in the war on terra"
Graham: quoting Jackson (?)
Graham: MCA, every detainee at GTMO would have access to Fed courts. The DC circuit court of appeals could look at these cases. True?
Muk: yes.
Graham: like Padilla case?
Muk: I believe so
Graham: why not provide mil legal counsel to unlawful enemy combatants. Ok?
Muk: don't know what process is now. In Padilla case, once someone has habeas, you have to give them a lawyer.
Graham: could have de facto life sentence, so we need a hybrid situation btwn mil and federal courts.
Graham: Americans (some) believe law is a "nicety" or a "weakness" but I believe the law is one of the most powerful things in our arsenal. Do you agree?
Muk: yes.
Graham: wouldn't it be nice to show (muslims) that there's no better way to lead the world on WoT to treat them in line with our values, let them know that whatever happened to combatant wasn't result of anger or revenge but was rather the result of due process and law.
Muk: as long as we don't compromise our ability to gather intelligence.
Graham: we do have to live w/in law applying; allegations to KSM waterboarding. I have no doubt that he did what he said he did, at least in the portion I observed, where they didn't lay a hand on him.
Muk: I wouldn't be comfortable using any evidence that was gathered under coersive techniques like that.
Graham: maybe one of our guys or gals would be caught in Iran, and a trial in Iran, the judge would receive info never shared w/accused, person sent to death, and we'd lose right to object. What we do now could come back to haunt us in other wars, you agree?
Muk: (pause) I agree with that.
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4:09 PM
Leahy: you are not suggesting that we compromise our ability to gather evidence if we don't torture? (followup on Graham question)
Muk: no
Leahy: if we have a Usian serial murderer, brought before you, there's a confession produced by 3 days of torture; you wouldn't allow that confession?
Muk: right.
Sen. Sheldon Whitehouse (D-RI): recognizes Director Freeh (former dir of FBI). Whitehouse used to work w/Freeh in R.I. (Acknowledges others in the room)
Whitehouse: worried about the DoJ. It is has sustained sig damage. Not convinced that simply replacing person at top is sufficient to cure problems (even though necessary). First, say a few words on your view of the role of the DoJ in USA.
Muk: uphold rule of law.
(...)
Whitehouse: there are other, structural problems at DoJ. Interactions w/White House (Bush/Cheney) totally inappropriate, even though contact was supposed to be restricted. Appt. of USAttys, staffing rules need to be re-worked after abuses.
Whitehouse: Goldsmith's book on OLC said "norms and practices" had been gutted or ignored. Which practices, rules etc need to be restored?
Muk: my approach has always been "hands on" so that I don't get surprised. I will do the same at DoJ. There's an advisory cmtee of USAttys that do or should meet regularly w/AG so that the AG knows what's going on at each office, maintain uniformity of standards.
Whitehouse: urge you to take this discussion and perform a "formal damage assessment" at DoJ and "see what needs to be put right." e.g. memos that widely opened DoJ investigations to White House and other officials, counter to recent traditions and WH counsel; discovered manual had been re-written (Feinstein); may be 100s of other such matters.
Muk: there is a v. small list of people who can be contacted by anyone who's an elected official about a case.
Whitehouse: including the Pres?
Muk: most emphatically, including the Pres.
Whitehouse: and that manual that Feinstein discovered?
Muk: clear as you get closer to an election, that window has to close, and the people investigating can't announce/disclose within that window.
Leahy: 5 min break
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4:37 PM
Sen. Ben Cardin (D-Maryland): impressed, impressed, impressed, IM-PRESSED w/Mukasey so far (Ok, ok, we get it)
Cardin: ...but concerned w/Civil Rights division. I usually judge how a company or employer does by the facts. If support diversity, but see v. few minorities, for e.g. Similarly, disappointed w/low number of cases brought to help minorities, right to vote, employment, housing (compared to previous administrations). What will you do to make this division to make it the place it needs to be? What is your plan to fill vacant position? Will you find someone with a background in civil rights law? Someone respected?
Muk: I spoke to current Head of division and Grace Cheung Becker (sp?) who impressed me during our conversation, not only w/familiarity w/law and what the division was doing. I was very well impressed w/her. If someone with her calibre stepped forward to undertake leadership of that dept...
Cardin: Pres will rely heavily on your views, for all vacancies at DoJ...I would feel more comfortable to hear your priorities on Civil Rights Division.
Muk: Historic and Current mandates...prosecution of hate-crimes is a current one, for e.g. The division is very actively involved in this.
Cardin: hate-crime episodes have increased dramatically, e.g. in University of Maryland, lot of new episodes very disturbing, not only w/race, religion, sexual orientation. Glad you will be aggressive in this area. We have a bill in Congress to strengthen this law, and I think DoJ can help.
Cardin: about election law...Civil Rights div has traditionally worked to remove obstacles to franchise; major shift to prevent "fraud," rather than remove obstacles to participation. e.g. Georgia voter ID--no examples provided of voters defrauding election. Went ahead, against advice of attorneys, disenfranchised minorities, homeless of their right to vote. Will your priority be the trad'l role (removing obstacles) or more to try to do Georgia-type Voter ID laws.
Muk: not an "either/or" proposition. Need to provide access and prevent fraudulent voting (Bullshit!)
Muk: one joyful duty as judge was the swearing-in of new citizens. Nobody who votes wants to see their vote diluted by someone who's not entitled to vote. (Who's "seen" that, exactly?!)
Cardin: do you agree w/Georgia decision that said Voter ID was "modern day Poll Tax"?
Muk: I think if ID is made available and accessible, informed of availability, then to say it's the Modern day equiv of Poll tax too much...
Cardin: these ID cards difficult or offensive if you're homeless, minority, disabled. [Note: they don't work, either, b/c there's no evidence of vast voting ID fraud!]
Muk: have to get these cards to everybody. Shouldn't be difficult to have.
Cardin: want Civil Rights division to put energy into access to voting, not towards disenfranchising.
Cardin: new problems in election procedures, e.g. effort to disenfranchise voters, with bad information distributed (wrong dates given to voters, targetting minorities about "if you have parking tickets, can't vote" etc. There's legislation by Obama, Schuster (sp?) trying to combat this kind of thing.
Muk: I certainly would. That is fraud.
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4:53 PM
Sen. Jeff Sessions (R-Alabama): do you feel that you need to articulate Pres's positions if you agree with them? Are you ready to give us honest, straight answers, to "the legit prerogatives of executive branch?"
Muk: I do.
Sessions: you're a man of the law (quoting Schumer), have great experience, so you can help those risking their lives for us, executing policies NB to us, they don't need to be denied the intelligence...some of these issues are tough, but we have a lot of legitimate powers, but I hope that you'll be effective at articulating that, so that we can be safer.
Sessions: need to find a lot of "top flight people" to staff your Dept. Don't hesitate to stand up to the Congress, with some of the legislation that gets passed. After 911, PATRIOT act, there was no disagreement that the law that prohibited our intel officials from [discussing things] was a bad idea; laws to protect civil liberties (some) were a big mistake and ended up causing 911 (WTF?!)
Muk: I am not a bashful person and I will speak up as needed.
Sessions: immigration debate...matter had been "bubbling"...people spoke clearly, they wanted a lawful system of immigration. Committed to a lawful system. Believe that's a good goal?
Muk: I do.
Sessions: I believe that the US people would like to hear you say something about your commitment to that. We arrested a million people last year who attempted to enter the country illegally. What steps will you take?
Muk: this is a nation of immigrants. FDR began w/salutation, "MY fellow immigrants..."; my father was an immigrant. The immigration/border problem is an aspect of the success that we've been. Need to control that for a wide variety of reasons, including maintaining our national security. Can't have a "try again" system. "Catch and release" has brought us trouble. In Del Rio, initiative was successful in some misdemeanor prosecutions, so good to followup on if we have the resources. Not talking about filling up jails with people who try to cross the border.
Sessions: seen 2 areas of border where misdemeanor prosecutions have been brought, one area 50% decline and another area 70% decline; amendment would allow us to expand that program. Perhaps like "Broken Windows" program in NY (squeegee kids), start with these little programs and expanding them. What do you think?
Muk: will look at it, but need to work with Homeland Security, as it's their jurisdiction too.
Sessions: can create an impression that our borders are no longer open, that we ARE serious about it, that even misdemeanors can be effective. You're aware that fed law requires deportation of criminal illegal aliens (commit crime while here illegally); not being enforced well now. At least 1/2 are in jail but won't be removed. Gonzales said DHS/DoJ cooperation is inadequate. Can we effectively ID those who've committed violent crimes, drug dealing and the like?
Muk: will look at it. Have to consult w/country of origin, as they might not be eager to have them back.
Sessions: but Specter suggested we could stop entry from certain countries if their citizens commit crimes.
Sessions: hope you don't ignore Voting Fraud.
Muk: I will not ignore it.
Leahy: a number of your answers indicate that political influence has no place in law enforcement. Tomorrow we will start w/Sen. Specter and I, but there will be no opening stmts. Go back to question of Exec Privilege and resolve a few other matters. I would urge Sens who wish to ask questions to BE here tomorrow (*snerk*).
Leahy: we will have a panel of experts here tomorrow, too. But it's been a long day, Judge.
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Recess till tomorrow...
(first compiled on this message board, but w/o links etc.)
2 comments:
wow - Thanks.
You're most welcome!
Cheers, Fernando!
GDK
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