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 morning's festivities (first compiled on this message board, but w/o links etc.)
NOTE: not a transcript! Time 'stamps' indicate the time of posting.
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10:14 AM
Leahy's opening stmt: [this scandal] has taken a heavy toll on the tradition of independence [at the DoJ]..."Dismay runs deep" from USAtty to the cop on the beat.
Leahy: Voted against Alberto Gonzales' confirmation in 2005. (...) Need independence; not "Secretary of the DoJ"; Don't need an AG to develop "legalistic loopholes" that serve the WH.
Leahy: Admin., enabled by the DoJ, reinstated "cruel, inhuman and degrading ttment" and torture.
Leahy: Political influence: partisanship in law enforcement. "Valuing loyalty over competence" lead to bumbling post-Katrina, Abu Ghraib, Blackwater etc. (...) [Gonzo] mischaracterized the facts surrounding the dismissal of USAttys.
Leahy: Reminded of Watergate era, importance of "enforcing the law w/o fear or favour," NB testimony of James Comey in recent testimony.
Leahy: "This is a job interview for a big job": manage >100 000 employees, budget of billions. Time to "restore the constitutional checks and balances that have been systematically eroded"
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10:21 AM
Arlen Specter (ranking Republican, Pennsylvania) opening statement: "serious allegations of political influence"
Specter: New AG "function on hiring on merit, firing on cause"
Specter: Has to be a balancing of consti'l rights and civil liberties.
Specter: Supported PATRIOT Act, Protect America Act, but v. concerned what's happening w/constit'l rights; detainee policy holds us up for v. substantial criticism worldwide.
We've seen surveillance program operate w/o oversight; need to include some congressional input
Specter: Signing stmts: Pres agreed to accomodate "detailed oversight" but then signed letter saying not-so-much; same w/McCain torture amendment
Specter: When Congress enacts leg, Pres signs it, then Pres has to "faithfully execute" according to the constitution
Specter: Need an AG willing to tell the Pres what he doesn't want to hear.
Specter: Detainee issues: have Compact Status Review panels that are "a joke"; has to be meaningful; Pres hoping 5 justices will want to revisit detainee issue in Bush's favour
Specter: Attitude on reporter's privilege: can DoJ live with a shield for reporters? Or waivers?
Specter: Appropriations: Pres uses his own figure for $$, not Congressional $$ recommendations (?) (Specter will slip in & out of hearing throughout the day)
Leahy: Kennedy will be away; surgery over weekend.
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10:33 AM
Schumer (D-NY): welcomes Mukasey. Introduces highlights: Bronx-born, Columbia college, Yale Law school, private practice, Southern Dist NY Corruption Unit; Fed Dist crt Judge, NY, presided over case of Blind Sheikh, Jose Padilla etc.
Schumer: Padilla's lawyers seem to respect Mukasey; thought he was fair.
Schumer: None of "Mukasey's experiences can prepare him fully for the job that lies ahead." Like Levy after Watergate. DoJ is "leaderless and rudderless"; Dept's prior leadership sorely "lacked credibility...independence"
Schumer: this is "a rebuilding year"; need "independence and integrity"...looking at Muk's career and our interviews, Schumer likes Mukasey.
Schumer: thinks of Comey and Goldsmith; "even John Ashcroft, maligned for so long, showed genuine courage" and stepped up when it was important. "I have no illusions about Judge Mukasey either"; knows he will disagree on certain points.
Schumer: will Muk "stand strong," even against the man who nominated him
Schumer: Comey's speech in 2005 quote (Job of a good lawyer to say yes, but also NB to say "No"--"No is often the undoing of a career")
Schumer: if confirmed, "will [Muk] have the courage to look squarely in the eyes of the President and say "no"?" Mukasey has assured me that he will have the courage...Mukasey will work with the Congress, will "put rule of law first"
Leahy anxious: Dalai Lama is coming soon so we have to speed things up (LOL!)
Lieberman (Repubdependent from CT): "43 yrs ago this fall" Muk and Lieb were Yale law students together. Thinks Muk will give "a reasoned answer" and not afraid to reach an opinion. Smart, thoughtful, hard working..."great sense of humour and a ready smile" (Rolling Mah Eyes)
Lieberman: "Muk comes with the experience of more than 2 decades as a judge"..."this is a man of the law, not a man of politics"...Lieb thinks Muk comes with the fewest political contacts (or personal) to Bush
Lieberman: "how to balance security and liberty" in the war on terra. Muk has experience considering this balance.
Lieberman: will restore morale to DoJ.
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10:42 AM
Leahy: (swearing in Mukasey)
Mukasey (opening stmt): "not about me"..."about the >100 000" who work at DoJ; all difft cultures of DoJ united by decisions based on facts, law, not motivated by politics; "the governing standard is what the consti'tn permit and require"
Mukasey: Robert Jackson said "the issue between authority and liberty is not between right and wrong"...the problem is btwn two rights.
Mukasey: protecting liberties is a part of protecting security; have to succeed at both.
Leahy: regarding firing of USAttys (reviews Iglesias and Schlozman's interference with "elections fraud" allegations, just before the federal elections)
Leahy: guidebook/red book on elections; "now a green [book]"
Leahy: will you go back to the old red book (not bringing charges w/in 2 wks of an election, for e.g.)
Mukasey: politics plays no part in either the pending of charges or the timing of charges.
(stream broken)
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10:54 AM
Mukasey: obviously the closer you get to an election, a charge can effect the outcome, the greater the standard (for bringing charges) has to be
Leahy: association w/Giuliani, working in USAtty's office? Can I assume that you would recuse yourself w/regard to any Giuliani-related elections stuff?
Mukasey: yes. Safe to assume.
Leahy: Bybee (Aug 1, 2002 memo) concluded that Pres had authority to override dom and int'l laws re: torture. Many of us voted against Gonzo for AG b/c of this memo and his refusal to disavow the Bybee memo. Turns out that our concerns were well founded (NY Times report from a coupla weeks ago, secret restoration of Bybee standard). Do you think Pres can use CinC override and torture people?
Mukasey: we are parties to laws/treaties that forbid torture; "it's not what this country stands for"..."this country liberated conc'n camps"..."saw it as a record of the barbarism" and the "Bybee memo was worse than a sin, it was a mistake"..."reported to justify measures based on broad grants of authority that were unnecessary"..."memo was withdrawn, in favour of another memo"...standards "contained in the Army field Manual"
Leahy: is there such a thing as a CinC override viz torture?
Mukasey: not that I'm aware of.
Leahy: (listing techniques Bybee memo allowed) "Comey predicted that the DoJ would be ashamed" when the public learned about these techniques. But it would appear that these techs are still in effect as policy. Will you bring (techs) back into line with the laws Congress passed?
Mukasey: I will certainly examine the underlying memos and underlying facts; not privy to classified info, particularly viz interrogation methods, so I can't say if something's out of line with the law or not.
Leahy: Will you read the memos but make sure that they ARE in line with the testimony you've already given?
Muk: yes
Leahy: AGAG thought Bush had CinC override that also contributed to warrantless surveillance that "violated the provisions of FISA"...even though Congress updated FISA >30 times, to take new tech into consideration. Only after leak of program and telecoms were sued did Pres/DoJ thought to look into the law.
Leahy: should telecoms be immunized?
Muk: can't immunize illegality. That said, there's a long history w/FISA. Limits of FISA did not reach to level of Pres authority (gap in constitutional authority); I will not weigh in on classified programs. The class'd program---though it is no longer in effect---something I can't weigh in on.
Leahy: contempt citations against Rove, Miers. Would you allow USAtty to act on contempt cit'ns?
Muk: any reliance on privilege of pres (exec pres) has to be considered; is priv unreasonable in this instance? "I hope and pray for a lot of things: one of them is that I don't have to make that decision"
Leahy: your predecessor had no problem making that decision.
Muk: I will be guided by the principles I outlined.
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11:07 AM
Specter: are you prep'd to resign if the Pres violates your advice or constitution, like Richardson in Sat night massacre?
Muk: if violated constitution, would present difficult problem; would talk Pres out of it or leave.
Specter: that's a "yes"?
Muk: "yes"
Specter: this morning's WaPo quotes, including Muk's comment about protecting civil liberties as a part of protecting security.
Specter: concerned that Muk not worried about protecting ind'l litigants. Despite security threats, there is still a concern about protecting ind'ls. Is your dominant view the one in the WaPo?
Muk: Yes, it is. Not speaking about ind'ls in US courts, but those in overseas courts (GAH!!)
Specter: what if GTMO detainees had rights Sup Crts suggested?
Muk: Congress changed the result of the Sup Crt case (Rasul); not sure whether it matters if it's Bagram Air Base or GTMO...
Specter: you'll be called on to make judgements long before the Sup Crt in AG position; on the issue of where ind'l is, when we enacted Detainee Tx in 2005, the critical provision is that "regardless of nationality or physical location"..."no subject will be [exposed] to cruel, inhuman or degrading treatment"
Muk: but no one's committed to engaging in cruel, inhuman or deg.
Specter: 2002 memo "any effort by Congress" to curtail Pres power in wartime interrogation...Bush then released signing stmt after McCain torture bill, rejecting curtailment of his powers to interrogate as he pleases. If you're confirmed, if Pres violates cruel, inhuman, degrading...and yet you have memo "undoing" congressional oversight, are you going to refer to Article II power?
Muk: have to follow the statute (not Article II memo)
Specter: is the constitutional right to habeas corpus more NB than statutory right to same? Thinking of Justice Stevens comments that there was a consti'l right to habeas corpus and then, inexplicably, the court of Appeals for DC said "the change in statute of habeas corpus limited constit'l rights of detainee" notwithstanding what Stevens said in Rasul case. Any justification for interpreting the constit'l right more narrowly?
Muk: issues "squarely before the court"..."I'm going to have to ..." (stammering)
Specter: you're punting right now...
Muk: that's right.
Specter: there are many things where the court decision's a long time away. Some of these things will be tie-votes. There'll be a lot of detainees asserting their rights, and yet DoJ asking if have to afford them those rights? What do you say?
Muk: the Dept has already filed briefs.
Specter: but the court hasn't ruled. (time's up)
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11:21 AM
Sen. Herb Kohl (D-Wisconsin): how will you ensure that politics plays no role, and appearance of politics plays no role?
Muk: "any attempt to interfere with a case..." will be referred for investigations (? hard to make out what he said)
Kohl: what can you say to assure us that decisions are based in good law, not what Pres, OVP thinks good law?
Muk: will review old decisions, make sure they're sound; People out in field, agencies, interrogators etc. have confidence they won't have rug pulled out from under them at a later time. "Can't expect them to put their careers and their freedom on the line"
Kohl: top tiers of DoJ full of "acting" members
Muk: matters can't move forward unless necessary authorizations are given; things will stagnate; will try to attract people...who understand the importance of doing jobs that are unfilled; can't do before confirmation.
Kohl: US used to be admired for humanrights (!); now Powell has asked for GTMO to be shut immediately. Would you recommend closure of GTMO?
Muk: problems with both perception and reality. "We're detaining people, apparently, without end"..."given us a black eye"; "nobody owns [GTMO]"; the DoD owns it, so there's overlap in terms of DoD, NDI (McConnell) and GTMO is "out there in a kind of no-man's land"
Kohl: would you recommend closure?
Muk: can't simply say that, b/c what do we do with the people who are there?
Kohl: you've had a long time to think about this. Take steps necessary to close it? Say to pres: need to close it as soon as we can?
Muk: fair to say that we need to get best advice and ideas that we can, with the goal of closing it down. "I think [the pres] understands...that GTMO has hurt us"
Kohl: high on list of your priorities?
Muk: yes.
Kohl: so we can expect to hear more from you after confirmation about GTMO?
Muk: blahbittyblah...yes.
Kohl: does Congress have ability to restrict abortion (I *THINK* that's what he asked?)
Muk: yes, and it has.
(Must check later)
Kohl: do you agree with Mueller? What steps will you take to reduce growing threat of violence across country?
Muk: yes. Terrorism effort undertaken by people taken from other aspects of FBI (e.g. anti-gang). Gangs have reduced his old "borough into a war-zone"
Kohl: violent crime rose again last year. Felt that AG reduced funding of law enforcement programs, e.g. COPS program cut, and violent crime is up. Would you agree we need to renew cmtmt to this program?
Muk: COPS very successful...but States, localities would themselves begin to fund their own police depts more locally, statewide (COPS not supposed to be an ongoing fed program for funding police)
(this part's boring me a bit)
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11:31 AM
Sen. Orrin Hatch (R-Utah): appreciates the time we had together in my office (Do tell, Orrin. Do tell...)
Hatch: this is a time when "we really need you" and "I hope you will be quickly confirmed because we need you..." at the DoJ
Hatch: re detainee treatment, does or can a statute trump constitution?
Muk: that's not what I meant (in earlier response to Specter); e.g. btwn statute of FISA and Pres'l constitutional power under Article II; that said, it's been obvious that everyone's going in the same direction. When pres acts pursuant to his authority, and Congress on board, don't have to get into "butting heads" (Well, yeah... Rolling mah Eyes )
Hatch: pornography is more widespread than ever...especially the internet...harms families, disproportionately victimizes women; pleased to see DoJ finalizing regulations; 8 mems of cmtee members of this process. Enforcement of law against obscenity/pornography almost stopped during Clinton admin (?), but hasn't really stepped up much during Bush admin. LA Times found that DoJ focused on the most "extreme" material, not larger mainstream "obscenities"; in my view, DoJ focuses on too narrow a range of obscene material. Personally, pls review and consider changing...
Muk: I certainly will. I recognize that "mainstream material" can "objectify women and endanger children in a way we can't tolerate"..."undermining families"
Hatch: make sure this area gets the priority it deserves.
Hatch: case in Utah? (????) What was your role?
Muk: former partner, Tyler, investigated in USAtty office in Salt Lake City; I was asked to help defend old partner. Got an indictment dismissed.
Hatch: some might construe your reputation wrongly in this case, but I congratulate you.
Hatch: protection of intellectual property NB to me; blah blah blah "piracy and counterfeiting are the new face" of ?
(I am bored w/Hatch)
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11:50 AM
Sen. Feinstein (D-CA): you said to Specter that the "classified" surveillance program is "not in effect" any longer. I assure you it is.
Feinstein: Gonzo issued order 2808, authority to hire/fire to Kyle Sampson and Monica Goodling; tech'y not involve USAtty, but it's clear to me that they *did* have that authority, in practice.
Muk: I'm surprised that authority is still in effect. That's supposed to be assigned to AG, not political people; that's not the way I want to run the dept.
Feinstein: thank you. Looking at Order 2808, the authorities granted are very broad in staffing. "Nub of the problem"
Feinstein: in Padilla v Bush, you upheld Pres's power to detain indefinitely, even though Padilla was US Citizen; you ruled that authorization (AUMF 2001) was broad enough to justify indef detention; 2nd Circuit (?) disagreed. Sup Crt did not reach the issue and it remains unresolved. Mukasey: would you advise pres that AUMF gives him authority to detain US citizens w/o charge?
Muk: this was sustained in Hamdi, as crt ruled persons "captured on field of battle" can be detained; Hamdi left open "where the battle is"
Feinstein: also in Padilla op, under civil war, crts may not review Pres'l power. How long will this unlimited power last?
Muk: as long as it has to last until the other political bodies take the matter up and deal with it. Obviously Congress took up the disaster (911) and granted AUMF 2001 shortly thereafter.
Feinstein: Congress can curtail military stuff then?
Muk: where the provision of military tools leaves off and interference with those tools begins...is "something I never want to see" (?!?!)
Feinstein: we well could be faced (with this conflict); do you believe Congress would have authority to curtail power, under Article I?
Muk: think it's not in the gen interest to be in position to come up w/highly detailed expressions of view (right now).
Feinstein. Understood, but Padilla decision troubling. Wouldn't Pres still have to advise Congress of his intentions and actions?
Muk: he would be unwise not to keep Congress "on same page" Otherwise, country's "riddled with dissent"
Feinstein: viz Mueller and priorities of FBI, he said "violent crime" #8 of 8 priorities. Mueller funding/staffing level down by 18% since 911. Will you look into this prioritization, gangs. I believe California has pro'lm with gangs, violent crime.
Muk: Yes. Wants to know what other 7 priorities are (aside: what do you want to bet it's porn, porn, porn...terrorism?)
Feinstein: female police officer raped by male colleague; victim didn't tell truth about event, but she was raped and fired upon; victim charged w/making false stmts, and eventually fired; assailant not fired or punished or reprimanded; you were trial judge and didn't allow a jury trial; 2nd circuit ordered jury trial; jury ordered $260 000 in damages; you vacated verdict; she appealed; 2nd circuit said you were wrong. As you look in hindsight, civil rights division in DoJ, for e.g., is this emblematic of your views or was this a special case?
Muk: only issue was whether police dept acted lawfully. Not indicated that the police dept acted unlawfully. It was "a very unusual case"...on civil rights, women's issues "I have a record of 40 yrs...in interactions w/colleagues and women...each hired on their merits in my own personal life" left a club where membership was restricted to men (Rolling mah Eyes) Think this anecdote indicates "the standard I would bring to the Dept (of Justice)"
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12:02 PM
Sen. Grassley (R-Iowa): federal false Claims Act intended to recover money lost to war profiteers; updated in 1986 (Grassley passed amendment). Recovered 20$ bill lost forever. Deterrent effect tremendous, too, but unmeasurable. This False Claims Act under attack since 1986, attempts to water act down, but Act has survived test of time. Next AG needs to support this law. If you're confirmed, what will you do to prosecute False Claims cases?
Muk: begins with people who could later become witnesses (whistleblowers). File lawsuits, then sealed, sent to DoJ, decision to assign resources behind lawsuit or not. Only one such lawsuit in my tenure. Each USAtty's office has to be alert to such cases and get resources to push those cases. Result in enormous recovery.
Grassley: obviously support Act and prosecutions. Would you commit to not to bowing to outside pressure to weaken act? Work cooperatively with whistleblowers that file False Claims cases and ensure these cases don't "languish under seal?
Muk: will treat fairly.
Grassley: provide Congress with info about #cases under seal and how long under seal?
Muk: will try. Don't know info right now.
Grassley: problem places jurisdictional hurdles not intended, e.g. DC Circuit limited Amtrak, since Amtrak employees not fed employees. Rockwell int'l case also. Place hurdles in way of US Gov, weakening effectiveness of law. Grassley S 2041 introduced and asked DoJ to comment on this legislation. Will you support this clarifying amendment? Work with me to fix neg interpretations of Act?
Muk: yes.
Grassley: could we get a timely comment on S 2041?
Muk: have to find out where that particular measure is.
Grassley: when we met in Sept, said oversight NB, including oversight over DoJ. Expect document requests to be completed in a timely fashion. Can I expect you to help DoJ more responsive and accountable?
Muk: you have that assurance.
Grassley: have made extensive doc requests, interview requests; often rebuffed, delayed, "internal clearance" excuses; reminds me of stonewall. e.g. doc request to FBI to UNCLASSIFIED emails related to letters, National Security Letters (requested March 2007) but haven't been given any response except waiting for "internal clearance": Mukasey, can you tear down that (stone)wall? (LOL!) Will you commit to ensuring that my doc requests are fulfilled in a timely manner and don't languish?
Muk: will ensure there's no stonewalling. There are ongoing investigations regarding the NS letters, so part of reason not as easy as it seems to clear matter. Will submit request w/o stepping on ongoing investigation.
Grassley: we should have been told that that was what was holding them up. If there is something "screwy" about this clearance process, we need to know.
Muk: will make sure it's clearance and not "black hole"
Grassley: values whistleblowers, (stream broken)
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12:17 PM
Mukasey: will talk to Mueller about FBI dealings w/whistleblowers; no retaliation acceptable. Should be protected.
Grassley: a lot of things are wrong, a lot of retaliation going on. I've learned that FBI and DoJ IG have been using an "overly broad non-disclosure form"...please respond the rest in writing (time's up)
Feingold (D-Wisconsin): enjoyed my time visiting w/Muk in my office. More experienced nominee than the last AG. A few weeks ago, asked about legality of NSA wiretap program. You said you were "agnostic" about whether the Pres had violated law. This is key issue: I agree we're better off if we don't have conflicts. Sup Crt has detailed jurisprudence in this area; not just a matter of "grey areas"; you've had several weeks to consider so I'll ask you again: CinC give Pres authority to violate FISA?
Muk: I am not familiar w/that program, I can't possibly be familiar...for me to make a categorical stmt w/regard to program would be enormously irresponsible.
Feingold: under Just. Jackson's (?), Pres violating law?
Muk: the Pres authority, to extent it's not war-based authority, is at it's lowest ebb; doesn't have Congressional authorization.
Feingold: can Pres direct gov employees to violate law?
Muk: area btwn statutory authority left off and Pres Constit'l authority to act, NB to recognize 4th amendment bars unreasonable searches; but there's scant, if any case law on question of whether intel gathering, rather than crim evidence, much more flexible...
Feingold: clear lang of FISA statute, your equivocation somewhat troubling. collection of law professors said FISA specifically states foreign intelligence gathering, not evidence gathering. Congress has spoken. Teh AG should be comfortable with that.
Muk: don't know where statute leaves off and Authority of Pres begins in CinC powers
Feingold: as you become familiar to program, you should realize Statute does specify limits
Feingold: Wall ST. J oped?
Muk: not for Wall St. J. Received an award and asked to respond to remarks about PATRIOT act, about excessive criticisms of Act, to an audience of lawyers; asked lawyers to propose amendments and participate in debate.
Feingold: many of us tried to encourage this debate from Day one...
Muk: reading some criticisms levelled at PA were not justified
Feingold: based solely on admin's docs on PATRIOT act?
Muk: no, based on PA itself.
Feingold: speech didn't take seriously arguments on the other side; excesses post 911, didn't always have to do with PA. Many serious people had serious concerns about byproducts of PA. Your speech suggested there were NO serious concerns. Anything else?
Muk: just lang of statute and criticisms.
Feingold: concerns me. Frightful report of IG, failure to nail down language lead to abuses, so criticisms had merit. You referred to "recreational hysteria" rxn to PA. Reminds me of Ashcrofts "chasing phantoms of lost liberties" dismissal of critics. Suggests to me a troubling disregard to the seriousness. Three fed judges have struck down parts of PA. Would you care to re-evaluate?
Muk: I wouldn't refer to fed judge as engaging in "recreational hysteria." But, some suggested they wouldn't cooperate w/investigation b/c objection of PA.
Feingold: have you ever publicly acknowledged legitimacy of critics?
Muk: people ought to participate in informed debate about it.
Feingold: Thanks. About Protect America Act (Aug 2007). Are you aware of controversy?
Muk: yes.
Feingold: If AG, are there any particular questions or concerns about this act that you'd like to address?
Muk: need details. Need to know how to involve private entities (telecoms?).
Feingold: concerned about admin's efforts to dismiss our oversight/reauthorization process. Will you meet with BOTH critics and supporters of this act?
Muk: I will
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(Recess till 2:30)
"Live" blogging of the 2:30-5:00 PM session will continue on this message board thread, and then added to the blog later tonight.
(Mukasey photo courtesy of jurist.pitt.edu)
NOTE: not a transcript! Time 'stamps' indicate the time of posting.
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10:14 AM
Leahy's opening stmt: [this scandal] has taken a heavy toll on the tradition of independence [at the DoJ]..."Dismay runs deep" from USAtty to the cop on the beat.
Leahy: Voted against Alberto Gonzales' confirmation in 2005. (...) Need independence; not "Secretary of the DoJ"; Don't need an AG to develop "legalistic loopholes" that serve the WH.
Leahy: Admin., enabled by the DoJ, reinstated "cruel, inhuman and degrading ttment" and torture.
Leahy: Political influence: partisanship in law enforcement. "Valuing loyalty over competence" lead to bumbling post-Katrina, Abu Ghraib, Blackwater etc. (...) [Gonzo] mischaracterized the facts surrounding the dismissal of USAttys.
Leahy: Reminded of Watergate era, importance of "enforcing the law w/o fear or favour," NB testimony of James Comey in recent testimony.
Leahy: "This is a job interview for a big job": manage >100 000 employees, budget of billions. Time to "restore the constitutional checks and balances that have been systematically eroded"
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10:21 AM
Arlen Specter (ranking Republican, Pennsylvania) opening statement: "serious allegations of political influence"
Specter: New AG "function on hiring on merit, firing on cause"
Specter: Has to be a balancing of consti'l rights and civil liberties.
Specter: Supported PATRIOT Act, Protect America Act, but v. concerned what's happening w/constit'l rights; detainee policy holds us up for v. substantial criticism worldwide.
We've seen surveillance program operate w/o oversight; need to include some congressional input
Specter: Signing stmts: Pres agreed to accomodate "detailed oversight" but then signed letter saying not-so-much; same w/McCain torture amendment
Specter: When Congress enacts leg, Pres signs it, then Pres has to "faithfully execute" according to the constitution
Specter: Need an AG willing to tell the Pres what he doesn't want to hear.
Specter: Detainee issues: have Compact Status Review panels that are "a joke"; has to be meaningful; Pres hoping 5 justices will want to revisit detainee issue in Bush's favour
Specter: Attitude on reporter's privilege: can DoJ live with a shield for reporters? Or waivers?
Specter: Appropriations: Pres uses his own figure for $$, not Congressional $$ recommendations (?) (Specter will slip in & out of hearing throughout the day)
Leahy: Kennedy will be away; surgery over weekend.
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10:33 AM
Schumer (D-NY): welcomes Mukasey. Introduces highlights: Bronx-born, Columbia college, Yale Law school, private practice, Southern Dist NY Corruption Unit; Fed Dist crt Judge, NY, presided over case of Blind Sheikh, Jose Padilla etc.
Schumer: Padilla's lawyers seem to respect Mukasey; thought he was fair.
Schumer: None of "Mukasey's experiences can prepare him fully for the job that lies ahead." Like Levy after Watergate. DoJ is "leaderless and rudderless"; Dept's prior leadership sorely "lacked credibility...independence"
Schumer: this is "a rebuilding year"; need "independence and integrity"...looking at Muk's career and our interviews, Schumer likes Mukasey.
Schumer: thinks of Comey and Goldsmith; "even John Ashcroft, maligned for so long, showed genuine courage" and stepped up when it was important. "I have no illusions about Judge Mukasey either"; knows he will disagree on certain points.
Schumer: will Muk "stand strong," even against the man who nominated him
Schumer: Comey's speech in 2005 quote (Job of a good lawyer to say yes, but also NB to say "No"--"No is often the undoing of a career")
Schumer: if confirmed, "will [Muk] have the courage to look squarely in the eyes of the President and say "no"?" Mukasey has assured me that he will have the courage...Mukasey will work with the Congress, will "put rule of law first"
Leahy anxious: Dalai Lama is coming soon so we have to speed things up (LOL!)
Lieberman (Repubdependent from CT): "43 yrs ago this fall" Muk and Lieb were Yale law students together. Thinks Muk will give "a reasoned answer" and not afraid to reach an opinion. Smart, thoughtful, hard working..."great sense of humour and a ready smile" (Rolling Mah Eyes)
Lieberman: "Muk comes with the experience of more than 2 decades as a judge"..."this is a man of the law, not a man of politics"...Lieb thinks Muk comes with the fewest political contacts (or personal) to Bush
Lieberman: "how to balance security and liberty" in the war on terra. Muk has experience considering this balance.
Lieberman: will restore morale to DoJ.
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10:42 AM
Leahy: (swearing in Mukasey)
Mukasey (opening stmt): "not about me"..."about the >100 000" who work at DoJ; all difft cultures of DoJ united by decisions based on facts, law, not motivated by politics; "the governing standard is what the consti'tn permit and require"
Mukasey: Robert Jackson said "the issue between authority and liberty is not between right and wrong"...the problem is btwn two rights.
Mukasey: protecting liberties is a part of protecting security; have to succeed at both.
Leahy: regarding firing of USAttys (reviews Iglesias and Schlozman's interference with "elections fraud" allegations, just before the federal elections)
Leahy: guidebook/red book on elections; "now a green [book]"
Leahy: will you go back to the old red book (not bringing charges w/in 2 wks of an election, for e.g.)
Mukasey: politics plays no part in either the pending of charges or the timing of charges.
(stream broken)
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10:54 AM
Mukasey: obviously the closer you get to an election, a charge can effect the outcome, the greater the standard (for bringing charges) has to be
Leahy: association w/Giuliani, working in USAtty's office? Can I assume that you would recuse yourself w/regard to any Giuliani-related elections stuff?
Mukasey: yes. Safe to assume.
Leahy: Bybee (Aug 1, 2002 memo) concluded that Pres had authority to override dom and int'l laws re: torture. Many of us voted against Gonzo for AG b/c of this memo and his refusal to disavow the Bybee memo. Turns out that our concerns were well founded (NY Times report from a coupla weeks ago, secret restoration of Bybee standard). Do you think Pres can use CinC override and torture people?
Mukasey: we are parties to laws/treaties that forbid torture; "it's not what this country stands for"..."this country liberated conc'n camps"..."saw it as a record of the barbarism" and the "Bybee memo was worse than a sin, it was a mistake"..."reported to justify measures based on broad grants of authority that were unnecessary"..."memo was withdrawn, in favour of another memo"...standards "contained in the Army field Manual"
Leahy: is there such a thing as a CinC override viz torture?
Mukasey: not that I'm aware of.
Leahy: (listing techniques Bybee memo allowed) "Comey predicted that the DoJ would be ashamed" when the public learned about these techniques. But it would appear that these techs are still in effect as policy. Will you bring (techs) back into line with the laws Congress passed?
Mukasey: I will certainly examine the underlying memos and underlying facts; not privy to classified info, particularly viz interrogation methods, so I can't say if something's out of line with the law or not.
Leahy: Will you read the memos but make sure that they ARE in line with the testimony you've already given?
Muk: yes
Leahy: AGAG thought Bush had CinC override that also contributed to warrantless surveillance that "violated the provisions of FISA"...even though Congress updated FISA >30 times, to take new tech into consideration. Only after leak of program and telecoms were sued did Pres/DoJ thought to look into the law.
Leahy: should telecoms be immunized?
Muk: can't immunize illegality. That said, there's a long history w/FISA. Limits of FISA did not reach to level of Pres authority (gap in constitutional authority); I will not weigh in on classified programs. The class'd program---though it is no longer in effect---something I can't weigh in on.
Leahy: contempt citations against Rove, Miers. Would you allow USAtty to act on contempt cit'ns?
Muk: any reliance on privilege of pres (exec pres) has to be considered; is priv unreasonable in this instance? "I hope and pray for a lot of things: one of them is that I don't have to make that decision"
Leahy: your predecessor had no problem making that decision.
Muk: I will be guided by the principles I outlined.
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11:07 AM
Specter: are you prep'd to resign if the Pres violates your advice or constitution, like Richardson in Sat night massacre?
Muk: if violated constitution, would present difficult problem; would talk Pres out of it or leave.
Specter: that's a "yes"?
Muk: "yes"
Specter: this morning's WaPo quotes, including Muk's comment about protecting civil liberties as a part of protecting security.
Specter: concerned that Muk not worried about protecting ind'l litigants. Despite security threats, there is still a concern about protecting ind'ls. Is your dominant view the one in the WaPo?
Muk: Yes, it is. Not speaking about ind'ls in US courts, but those in overseas courts (GAH!!)
Specter: what if GTMO detainees had rights Sup Crts suggested?
Muk: Congress changed the result of the Sup Crt case (Rasul); not sure whether it matters if it's Bagram Air Base or GTMO...
Specter: you'll be called on to make judgements long before the Sup Crt in AG position; on the issue of where ind'l is, when we enacted Detainee Tx in 2005, the critical provision is that "regardless of nationality or physical location"..."no subject will be [exposed] to cruel, inhuman or degrading treatment"
Muk: but no one's committed to engaging in cruel, inhuman or deg.
Specter: 2002 memo "any effort by Congress" to curtail Pres power in wartime interrogation...Bush then released signing stmt after McCain torture bill, rejecting curtailment of his powers to interrogate as he pleases. If you're confirmed, if Pres violates cruel, inhuman, degrading...and yet you have memo "undoing" congressional oversight, are you going to refer to Article II power?
Muk: have to follow the statute (not Article II memo)
Specter: is the constitutional right to habeas corpus more NB than statutory right to same? Thinking of Justice Stevens comments that there was a consti'l right to habeas corpus and then, inexplicably, the court of Appeals for DC said "the change in statute of habeas corpus limited constit'l rights of detainee" notwithstanding what Stevens said in Rasul case. Any justification for interpreting the constit'l right more narrowly?
Muk: issues "squarely before the court"..."I'm going to have to ..." (stammering)
Specter: you're punting right now...
Muk: that's right.
Specter: there are many things where the court decision's a long time away. Some of these things will be tie-votes. There'll be a lot of detainees asserting their rights, and yet DoJ asking if have to afford them those rights? What do you say?
Muk: the Dept has already filed briefs.
Specter: but the court hasn't ruled. (time's up)
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11:21 AM
Sen. Herb Kohl (D-Wisconsin): how will you ensure that politics plays no role, and appearance of politics plays no role?
Muk: "any attempt to interfere with a case..." will be referred for investigations (? hard to make out what he said)
Kohl: what can you say to assure us that decisions are based in good law, not what Pres, OVP thinks good law?
Muk: will review old decisions, make sure they're sound; People out in field, agencies, interrogators etc. have confidence they won't have rug pulled out from under them at a later time. "Can't expect them to put their careers and their freedom on the line"
Kohl: top tiers of DoJ full of "acting" members
Muk: matters can't move forward unless necessary authorizations are given; things will stagnate; will try to attract people...who understand the importance of doing jobs that are unfilled; can't do before confirmation.
Kohl: US used to be admired for humanrights (!); now Powell has asked for GTMO to be shut immediately. Would you recommend closure of GTMO?
Muk: problems with both perception and reality. "We're detaining people, apparently, without end"..."given us a black eye"; "nobody owns [GTMO]"; the DoD owns it, so there's overlap in terms of DoD, NDI (McConnell) and GTMO is "out there in a kind of no-man's land"
Kohl: would you recommend closure?
Muk: can't simply say that, b/c what do we do with the people who are there?
Kohl: you've had a long time to think about this. Take steps necessary to close it? Say to pres: need to close it as soon as we can?
Muk: fair to say that we need to get best advice and ideas that we can, with the goal of closing it down. "I think [the pres] understands...that GTMO has hurt us"
Kohl: high on list of your priorities?
Muk: yes.
Kohl: so we can expect to hear more from you after confirmation about GTMO?
Muk: blahbittyblah...yes.
Kohl: does Congress have ability to restrict abortion (I *THINK* that's what he asked?)
Muk: yes, and it has.
(Must check later)
Kohl: do you agree with Mueller? What steps will you take to reduce growing threat of violence across country?
Muk: yes. Terrorism effort undertaken by people taken from other aspects of FBI (e.g. anti-gang). Gangs have reduced his old "borough into a war-zone"
Kohl: violent crime rose again last year. Felt that AG reduced funding of law enforcement programs, e.g. COPS program cut, and violent crime is up. Would you agree we need to renew cmtmt to this program?
Muk: COPS very successful...but States, localities would themselves begin to fund their own police depts more locally, statewide (COPS not supposed to be an ongoing fed program for funding police)
(this part's boring me a bit)
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11:31 AM
Sen. Orrin Hatch (R-Utah): appreciates the time we had together in my office (Do tell, Orrin. Do tell...)
Hatch: this is a time when "we really need you" and "I hope you will be quickly confirmed because we need you..." at the DoJ
Hatch: re detainee treatment, does or can a statute trump constitution?
Muk: that's not what I meant (in earlier response to Specter); e.g. btwn statute of FISA and Pres'l constitutional power under Article II; that said, it's been obvious that everyone's going in the same direction. When pres acts pursuant to his authority, and Congress on board, don't have to get into "butting heads" (Well, yeah... Rolling mah Eyes )
Hatch: pornography is more widespread than ever...especially the internet...harms families, disproportionately victimizes women; pleased to see DoJ finalizing regulations; 8 mems of cmtee members of this process. Enforcement of law against obscenity/pornography almost stopped during Clinton admin (?), but hasn't really stepped up much during Bush admin. LA Times found that DoJ focused on the most "extreme" material, not larger mainstream "obscenities"; in my view, DoJ focuses on too narrow a range of obscene material. Personally, pls review and consider changing...
Muk: I certainly will. I recognize that "mainstream material" can "objectify women and endanger children in a way we can't tolerate"..."undermining families"
Hatch: make sure this area gets the priority it deserves.
Hatch: case in Utah? (????) What was your role?
Muk: former partner, Tyler, investigated in USAtty office in Salt Lake City; I was asked to help defend old partner. Got an indictment dismissed.
Hatch: some might construe your reputation wrongly in this case, but I congratulate you.
Hatch: protection of intellectual property NB to me; blah blah blah "piracy and counterfeiting are the new face" of ?
(I am bored w/Hatch)
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11:50 AM
Sen. Feinstein (D-CA): you said to Specter that the "classified" surveillance program is "not in effect" any longer. I assure you it is.
Feinstein: Gonzo issued order 2808, authority to hire/fire to Kyle Sampson and Monica Goodling; tech'y not involve USAtty, but it's clear to me that they *did* have that authority, in practice.
Muk: I'm surprised that authority is still in effect. That's supposed to be assigned to AG, not political people; that's not the way I want to run the dept.
Feinstein: thank you. Looking at Order 2808, the authorities granted are very broad in staffing. "Nub of the problem"
Feinstein: in Padilla v Bush, you upheld Pres's power to detain indefinitely, even though Padilla was US Citizen; you ruled that authorization (AUMF 2001) was broad enough to justify indef detention; 2nd Circuit (?) disagreed. Sup Crt did not reach the issue and it remains unresolved. Mukasey: would you advise pres that AUMF gives him authority to detain US citizens w/o charge?
Muk: this was sustained in Hamdi, as crt ruled persons "captured on field of battle" can be detained; Hamdi left open "where the battle is"
Feinstein: also in Padilla op, under civil war, crts may not review Pres'l power. How long will this unlimited power last?
Muk: as long as it has to last until the other political bodies take the matter up and deal with it. Obviously Congress took up the disaster (911) and granted AUMF 2001 shortly thereafter.
Feinstein: Congress can curtail military stuff then?
Muk: where the provision of military tools leaves off and interference with those tools begins...is "something I never want to see" (?!?!)
Feinstein: we well could be faced (with this conflict); do you believe Congress would have authority to curtail power, under Article I?
Muk: think it's not in the gen interest to be in position to come up w/highly detailed expressions of view (right now).
Feinstein. Understood, but Padilla decision troubling. Wouldn't Pres still have to advise Congress of his intentions and actions?
Muk: he would be unwise not to keep Congress "on same page" Otherwise, country's "riddled with dissent"
Feinstein: viz Mueller and priorities of FBI, he said "violent crime" #8 of 8 priorities. Mueller funding/staffing level down by 18% since 911. Will you look into this prioritization, gangs. I believe California has pro'lm with gangs, violent crime.
Muk: Yes. Wants to know what other 7 priorities are (aside: what do you want to bet it's porn, porn, porn...terrorism?)
Feinstein: female police officer raped by male colleague; victim didn't tell truth about event, but she was raped and fired upon; victim charged w/making false stmts, and eventually fired; assailant not fired or punished or reprimanded; you were trial judge and didn't allow a jury trial; 2nd circuit ordered jury trial; jury ordered $260 000 in damages; you vacated verdict; she appealed; 2nd circuit said you were wrong. As you look in hindsight, civil rights division in DoJ, for e.g., is this emblematic of your views or was this a special case?
Muk: only issue was whether police dept acted lawfully. Not indicated that the police dept acted unlawfully. It was "a very unusual case"...on civil rights, women's issues "I have a record of 40 yrs...in interactions w/colleagues and women...each hired on their merits in my own personal life" left a club where membership was restricted to men (Rolling mah Eyes) Think this anecdote indicates "the standard I would bring to the Dept (of Justice)"
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12:02 PM
Sen. Grassley (R-Iowa): federal false Claims Act intended to recover money lost to war profiteers; updated in 1986 (Grassley passed amendment). Recovered 20$ bill lost forever. Deterrent effect tremendous, too, but unmeasurable. This False Claims Act under attack since 1986, attempts to water act down, but Act has survived test of time. Next AG needs to support this law. If you're confirmed, what will you do to prosecute False Claims cases?
Muk: begins with people who could later become witnesses (whistleblowers). File lawsuits, then sealed, sent to DoJ, decision to assign resources behind lawsuit or not. Only one such lawsuit in my tenure. Each USAtty's office has to be alert to such cases and get resources to push those cases. Result in enormous recovery.
Grassley: obviously support Act and prosecutions. Would you commit to not to bowing to outside pressure to weaken act? Work cooperatively with whistleblowers that file False Claims cases and ensure these cases don't "languish under seal?
Muk: will treat fairly.
Grassley: provide Congress with info about #cases under seal and how long under seal?
Muk: will try. Don't know info right now.
Grassley: problem places jurisdictional hurdles not intended, e.g. DC Circuit limited Amtrak, since Amtrak employees not fed employees. Rockwell int'l case also. Place hurdles in way of US Gov, weakening effectiveness of law. Grassley S 2041 introduced and asked DoJ to comment on this legislation. Will you support this clarifying amendment? Work with me to fix neg interpretations of Act?
Muk: yes.
Grassley: could we get a timely comment on S 2041?
Muk: have to find out where that particular measure is.
Grassley: when we met in Sept, said oversight NB, including oversight over DoJ. Expect document requests to be completed in a timely fashion. Can I expect you to help DoJ more responsive and accountable?
Muk: you have that assurance.
Grassley: have made extensive doc requests, interview requests; often rebuffed, delayed, "internal clearance" excuses; reminds me of stonewall. e.g. doc request to FBI to UNCLASSIFIED emails related to letters, National Security Letters (requested March 2007) but haven't been given any response except waiting for "internal clearance": Mukasey, can you tear down that (stone)wall? (LOL!) Will you commit to ensuring that my doc requests are fulfilled in a timely manner and don't languish?
Muk: will ensure there's no stonewalling. There are ongoing investigations regarding the NS letters, so part of reason not as easy as it seems to clear matter. Will submit request w/o stepping on ongoing investigation.
Grassley: we should have been told that that was what was holding them up. If there is something "screwy" about this clearance process, we need to know.
Muk: will make sure it's clearance and not "black hole"
Grassley: values whistleblowers, (stream broken)
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12:17 PM
Mukasey: will talk to Mueller about FBI dealings w/whistleblowers; no retaliation acceptable. Should be protected.
Grassley: a lot of things are wrong, a lot of retaliation going on. I've learned that FBI and DoJ IG have been using an "overly broad non-disclosure form"...please respond the rest in writing (time's up)
Feingold (D-Wisconsin): enjoyed my time visiting w/Muk in my office. More experienced nominee than the last AG. A few weeks ago, asked about legality of NSA wiretap program. You said you were "agnostic" about whether the Pres had violated law. This is key issue: I agree we're better off if we don't have conflicts. Sup Crt has detailed jurisprudence in this area; not just a matter of "grey areas"; you've had several weeks to consider so I'll ask you again: CinC give Pres authority to violate FISA?
Muk: I am not familiar w/that program, I can't possibly be familiar...for me to make a categorical stmt w/regard to program would be enormously irresponsible.
Feingold: under Just. Jackson's (?), Pres violating law?
Muk: the Pres authority, to extent it's not war-based authority, is at it's lowest ebb; doesn't have Congressional authorization.
Feingold: can Pres direct gov employees to violate law?
Muk: area btwn statutory authority left off and Pres Constit'l authority to act, NB to recognize 4th amendment bars unreasonable searches; but there's scant, if any case law on question of whether intel gathering, rather than crim evidence, much more flexible...
Feingold: clear lang of FISA statute, your equivocation somewhat troubling. collection of law professors said FISA specifically states foreign intelligence gathering, not evidence gathering. Congress has spoken. Teh AG should be comfortable with that.
Muk: don't know where statute leaves off and Authority of Pres begins in CinC powers
Feingold: as you become familiar to program, you should realize Statute does specify limits
Feingold: Wall ST. J oped?
Muk: not for Wall St. J. Received an award and asked to respond to remarks about PATRIOT act, about excessive criticisms of Act, to an audience of lawyers; asked lawyers to propose amendments and participate in debate.
Feingold: many of us tried to encourage this debate from Day one...
Muk: reading some criticisms levelled at PA were not justified
Feingold: based solely on admin's docs on PATRIOT act?
Muk: no, based on PA itself.
Feingold: speech didn't take seriously arguments on the other side; excesses post 911, didn't always have to do with PA. Many serious people had serious concerns about byproducts of PA. Your speech suggested there were NO serious concerns. Anything else?
Muk: just lang of statute and criticisms.
Feingold: concerns me. Frightful report of IG, failure to nail down language lead to abuses, so criticisms had merit. You referred to "recreational hysteria" rxn to PA. Reminds me of Ashcrofts "chasing phantoms of lost liberties" dismissal of critics. Suggests to me a troubling disregard to the seriousness. Three fed judges have struck down parts of PA. Would you care to re-evaluate?
Muk: I wouldn't refer to fed judge as engaging in "recreational hysteria." But, some suggested they wouldn't cooperate w/investigation b/c objection of PA.
Feingold: have you ever publicly acknowledged legitimacy of critics?
Muk: people ought to participate in informed debate about it.
Feingold: Thanks. About Protect America Act (Aug 2007). Are you aware of controversy?
Muk: yes.
Feingold: If AG, are there any particular questions or concerns about this act that you'd like to address?
Muk: need details. Need to know how to involve private entities (telecoms?).
Feingold: concerned about admin's efforts to dismiss our oversight/reauthorization process. Will you meet with BOTH critics and supporters of this act?
Muk: I will
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(Recess till 2:30)
"Live" blogging of the 2:30-5:00 PM session will continue on this message board thread, and then added to the blog later tonight.
(Mukasey photo courtesy of jurist.pitt.edu)
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