The US Senate Judiciary Committee continued its second day of confirmation proceedings for Judge Michael Mukasey, Bush's nominee for US Attorney General. You will find my summaries of this morning's hearings right here (yesterday's hearings here & here.
NOTES: (a) this is not a transcript! Time 'stamps' indicate the time of posting.
(b) "Muk" refers to Michael Mukasey ;)
(c) First compiled on this message board, with the help of skdadl, my partner in all-things-Harrison-Ford ;) BTW, check out skdadl's coverage of the House hearings on the rendition and torture of Canadian Maher Arar.
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2:24 PM
Leahy: Specter was managing another bill on the floor. I want to cover one more point: I will have followup questions, and I would hope you'd look at them very srsly.
Specter: lot of controversy over McNulty and Thompson memos viz atty/client privilege, w/practice by DoJ to obtain waivers of atty/client privilege (white-collar, corporate crime); voluntary or NOT voluntary. Legislation pending which would eliminate that practice. Concerns: commonwealth of gov/state has burden to prove case; right to counsel protected and privilege NB. I was DA in city of Philly, and never consider asking defendant to prove his case out of his own mouth. Thompson/McNulty memos suggest waiver of facts/opinions. (NOT sure what Specter's talkin' aboot here)
Specter: is there a justification for having a waiver other than on a purely, purely voluntary basis?
Muk: right to counsel---in corporate setting, issue is what happened, how pervasive the conduct was, etc. A lot of focus has shifted to rights of corporation, waiver of atty/client priv. Corpses obligation/duty to find out facts and do reports. Cmtees do reports, and availability of reports helps prosecutors save time in finding out facts.
Specter: well, if director wants to waive privilege, ok, but employee has separate priv? If priv not waived, and there are tougher charges...pros atty is most powerful position in gov. Recommendation, coercive power...nobody ever told them before Thompson/McNulty memos.
Muk: particularly with corporations. The problem in memos is that when corpses want to say they're cooperating w/pros, the pros told when they're evaluating stds for whether cooperating or not, the degree to which corps discloses facts is one measure.
Specter: why should waiver of right det what the sentence recommendation would be? Sure, if you show contrition it should be mitigating factor, but why an aggravating factor?
Muk: a corpse, through ind'ls, always a question...haven't reviewed the McNulty memo recently. Not to be used as a club: not to tell corpse that you're not cooperative if you don't waive atty/client priv.
Specter: Leahy and I sat w/McNulty and couldn't find common ground. I know you haven't reviewed it, but if you could, we'd like to talk to you more about it. Leg going forward: feeling is far/wide that it is being misused. WE see what's happening w/Enron et al. But when constit'l right is involved, we'd like to see closer/careful analysis.
Specter: wrt request for testimony USAttys, I recommended to Gonzo that the best course would be to make full disclosure, whether justified in request for resignations. There are subpoenas outstanding, Miers & Rove, and tried to find way of accommodating Bush. He took this on himself to do televised news conference, not wanting Miers/Rove to testify. Not want them under oath. Not wanting a transcript---we said "not a good idea," for the protection of the ind'l, but we'd even agree to forego that (at least I would) but then they asked us for no followup. We can't agree to that. Can you take a close look at that? Help us resolve? Do you see a problem with asking for a transcript?
Muk: often a great benefit to everybody having a transcript, but it's often a lot easier to talk and get facts when someone isn't sitting there watching every syllable they say.
Specter: ? You are weighing every syllable now?
Leahy: there are 1/2 doz cameras here right now...
Specter: you might find it more friendly if we stopped the transcript (right now) *snerk*
Specter: ok we'll move on. About oversight: I've made it a practice to give letter to dep Atty Gen on essential oversight. Congressional Research Services analysis: would you agree that we have a legit scope of oversight, as in the CRS memo?
Muk: seems apparent that there are also instances that issues of priv will result in hesitancy to provide info. Case by case basis. I don't think that oversight is a zero-sum game, where everything disclosed is a "loss" to the Dept. benefits DoJ and Congress, high level of performance. I recognize that. Disputes have been worked out, historically.
Muk: the optimum case is where the kind of info provided wouldn't have any impact on pending litigation, privilege, etc.
Specter: we don't get very far with those limits...
Muk: not the sole determinant. This has always been worked out in the past.
Specter: Combatant status review board (CSRB) subject of review, yesterday. I ask you to review the case called under attn (GTMO, proceeding before CSRB where detainee charged w/assoc'n w/al Qaeda; stmt of Lt. Col. Stephen Abraham's account of CSRB). Sup Crt granted petition for rearguing case. Anticipation of oral argument has lead to gov coming up with another procedure that isn't explained. Close to federal court habeas corpus? Is the only difference the status/tenure of judge? Complaints that matters go on forever. Never know standing of people under investigation. Advised that some USAtty want to know if cases are really "over"--what is the policy? Wouldn't fair play be best served by telling people it's over?
Muk: if it's over, I agree it would be desirable to say so. Frequently uncertain. E.g. organized crime cases, it's regrettably hardly ever over.
Specter: if it's not clear, entitled to be notified.
Muk: difficult b/c it can hurt somebody more if there's a policy to notify; if it can't be done, then worse if they're expecting a decision (??)
Specter: you're impressive. Credentials, testimony here...unless witnesses called in support of your nom'n give highly damaging testimony, we expect you to be confirmed. Chairman and I and all members of cmtee will have a lot of contacts with you.
Muk: thanks.
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2:35 PM
Leahy: I much prefer a careful answer than 75-80 times "I don't know" *snerk*
Leahy: Goldsmith's book, Terror Presidency, I understand you've read; PBS Frontline "Cheney's law" the other night; Charlie Savage (Boston Globe) was featured in doc, the guy who wrote book on signing statements etc. The OLC change from traditional place in admin to a place where admin requests customized legal opinions. E.g. Goldsmith wrote that they wanted interrogators to have a blank check. Ask you to review opinions of OLC. Review those on exec privilege, congressional testimony...
Muk: I will
Leahy: I go by the assumption that if you don't change them, you agree with them. Would you agree that the office has to have independence?
Muk: yes.
Leahy: I've been here for 6 admin. Always had independence in OLC before now. Pres can't step outside law on issues of torture, wiretapping...talked to you privately about fact that DoJ is left in good hands for whomever takes over in the next administration. WE can both agree that we need a strong, ind, AG in DoJ. Threat to professionalism biggest since Sat Night Massacre. Former Deputy AG Harold Tyler, someone you & I admire, was appt'd to restore DoJ after Watergate. Hope that you, like Tyler, will restore Dept's integrity.
Leahy: You've testified that it will stand for the rule of law. Also stand for justice: nobody's above the law, not you or I, nor the Pres. The commutation of sentence of Scooter Libby, even before appeal served, see Pres promoting immunity over accountability. Unilateral power, w/o checks and balances. I don't believe the Pres is above the law; the view he may override the laws he chooses is dead wrong. Extremely dangerous. Costs will be staggering. Compounds lawlessness by conducting itself under veil of secrecy. I haven't known any admin who hasn't been helped in the long run by oversight. Having to admit mistakes.
Leahy: I do worry that there's been a retreat today, compared to yesterday about the Pres adhering to the rule of law. I will have followup letters and we will continue to meet on that. Worried about your overbroad views of Pres'l power. I agree with your opening statement, protecting liberties a part of protecting security. Hearing's going to start with a new chapter, where laws are no longer undercut in secret. Real test is not whether you'll be confirmed, but what kind of AG you will be. The oversight process and AG cooperation w/that process: confirmation by Senate is an act of trust; Oversight helps us verify (paraphrasing Reagan). Any last words before the next panel?
Muk: nothing to add. Grateful.
Cardin: votes called for 2:30 on the floor; should recess till 3:45 PM
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4:15 PM
Cardin: witnesses that know nominee and want to give testimony. It's tradition to swear you in.
(swearing in witnesses)
Cardin: Mr. [Dick] Thornburgh, AG for 2 presidents, elected Gov. Pennsylvania 1978; 2 terms. Three yrs as AG under Reagan and Bush I. Consultant to UN and World Bank. BA at Yale, Law at U Pittsburgh.
Gov Thornburgh: similar situation at DoJ as mine in Reagan yrs. Earlier AG (Ed Meese) under investigation by ind counsel. Some turmoil in dept. No prosecution of Meese but 1988 report was sufficiently critical that he resigned. I was sworn in shortly thereafter. I previously served for West district of PA, unique role in our federal govt. Early as AG, priority to restore morale, w/assistance of career employees.
Thornburgh: Today the DoJ is enduring unfortunate period of turmoil. At least 6 vacancies among Asst. Attys. Clement et al doing the best they can, though. Major vacancies in top leadership corps is making things tough.
Thornburgh: not passing judgement on firing of USAttys, but essential that prosecutorial function be carried out apolitically, must call evidence "without fear or favour"; independence NB. DoJ alone has power of criminal prosecution. You will hear from Mary Jo White and (one other) to testify on Mukasey's behalf.
Thornburgh: Mukasey served in Southern Dist NY, appt'd by Ronald Reagan. 18 yrs on fed bench. Earning reputation in major cases of importance. Salient qualities of person and critical need of the moment are well matched.
Thornburgh: moving, memorable e.g. 1989 when I lead 200th anniversary of office of AG. All living AGs attended, up to Herbert Brownell. Had Ethel Kennedy, widow of Robert F. Kennedy, too. (naming others in attendance) I'm confident that Mukasey will lead a period of renewal under exemplary leadership. Like to assoc self with views of Specter in today's WSJournal. Thank you, Mr. Chairman.
Chuck Canterbury (local lodge president of "Lodge Insurance Program," expanded police labour movement; Fraternal Order of Police; retired 2004 from S.C. police dept. Officer for 25 yrs): consider Sen. Leahy to be a stalwart for Law enforcement for the rank & file.
Canterbury: Mukasey distinguished service. 1987 nom'd federal bench, unanimous confirmation by Sen. Last 6 yrs as chief justice in federal court, S. District NY, including prosecution of Blind Sheikh, 1993 WTC bombing. This case earned him acclaim from peers and law-enforcement. 2nd Circuit appeals paid particular compliments on this case. Also presided over Padilla case: citizens should have access to attys. Mukasey argued in WSJournal that current systems are ill suited to handle prosecution of terror suspects w/o compromising national security and intelligence.
Canterbury: Frat order of Police strongly recommends Mukasey for AG. Want him there while we're considering issues of WoTerrorism. We are bargaining unit for >3 000 officers in country. We are satisfied with his record in criminal law. Keenly interested in cases he's ruled in on employees, particularly public employees. Skilled, even handed on those cases. Respected by law enforcement community. Glad to answer any questions.
Rear Adm. John Hutson (BA Michigan St; US Navy; U Minnesota law; chief defense counsel, Georgetown Univ law center Masters; office legislative affairs for Navy; 1989 Washington DC staff JAG asst cmdr investigative command; 1992/93 JAG navy; Rear Adm as JAG 1997; multiple medals, stars, commendations from Navy)
Rear Adm. Hutson: I was opposed to confirmation to Gonzales, former AG, along with Center for Victims of Torture and Prof Cole (David Cole?). I'm not here in opposition, but want to enter my concerns and make points:
Hutson: US is a country of laws, adhere to (or try to) rule of law; no one more NB than AG in this respect. Most of great nations who've failed have done so b/c domestic and foreign misadventure. This is possible now w/"GWoT": enemy can't defeat us militarily. Winning for the enemy is to cause us to change, to bring us down to his level, to cause us to be something diff than what we've been. Our great strength is human rights but...Bono said, "America not just a country, it's an idea"
Hutson: In an asymmetric war, pitting strength against weakness. Our strength is our ideals. Enemy abjectly devoid of ideals. Can't defeat us militarily, but we can commit national suicide by disarming ourselves of ideals. Bybee torture memo. Gonzales memo on GC. Suspension of Habeas Corpus. CSRT. GTMO. We can all say "US doesn't torture," but all you have to do is look at a newspaper for examples. The CIA "enhanced interrogation" techniques have been legalized by memos from DoJ.
Huston: in 1950, an armed forces officer said "US abides by the laws of war...wanton killing, torture, working of unusual or unnecessary hardship is not justified under any circumstances"..."cruelty or maltreatment: any shall be punished."
Huston: Common article III of the Geneva Conventions prohibits outrages upon personal dig, including humiliating or degrading treatment. The Supreme Court never said "part of CAIII applied," so it includes all of CAIII.
Hutson: need a clarion call. A repudiation of definitions of what has happened. It brings tears to your eyes. The US is not engaged in an existential struggle unless we make it so...it is the AG who will make the decision whether we are at a pendulum or a plateau.
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4:31 PM
Prof. Dawn Johnson (worked for ACLU, NARAL, exec branch of Clinton, AG Reno; in 1998, Prof Law at Indiana U, School of Law; constitutional lawyer):
Johnson: worked at OLC for 5 yrs as acting Asst AG. Core function to provide advice to exec branch, to act lawfully. OLC dangerously compromised under Bush. Under some counterterrorism matters, has abandoned trad'l role. Goldsmith wrote that some Bush-era OLC opinions were "overly broad," "sloppily reasoned"..."akin to a get out of jail free card"
Johnson: Congress should demand release of these OLC opinions. Stmt of 10 principles to guide OLC. Submitted entire stmt of 10 principles to cmtee: e.g. when providing advice, OLC should provide an honest appraisal of law, even if in conflict with exec desires. i.e. has to be ready to tell Pres "NO"; deeply appreciate role of DoJ of protecting country from terrorism. But, thinking of warrantless wiretap, tortures, etc, question was whether the Pres would work unilaterally or would he comply w/constit'l lawmaking procedures. Pres has consistently gone it alone.
Johnson: DoJ must avoid Secret Law. Should disclose opinions in timely manner. Exec has some legit needs for secrecy. But if doesn't comply w/statutes or law. e.g. violation of common article III. Congress needs those secret OLC opinions that interpret Detainee Treatment Act. Congress and next AG must confront problem that ultimately lies with President, not DoJ. Deeply hostile to any checks on counterterrorism policy. AG should scrutinize OLC's work and restore OLC's traditional role. This cmtee should engage in aggressive oversight.
Theodore Shaw (counsel NAACP legal defense and education fund; school desegregation, death penalty, civil rights; Wesleyan (SP?), Columbia school of law; resigned from Reagan's DoJ in protest over civil rights division issues): attended alumni reunion of civil rights division; no one from Bush admin's DoJ civil rights division attended. Present leadership of DoJ/CRD needs to change. Healing, restoration of CRD. Core mission of CRD was the battle against racial discrimination, particularly African americans in the beginning, but much more broad now. While CRD mandate has expanded as it should have (women, disabled, etc), we believe there's a manifest imbalance that has clapped up in recent years. CRD does rel. little work on behalf of Af. Americans these days. While in office, last 6.5 yrs, dept only brought 5 cases under Sec 706 Title 7; brought 3 so-called "reverse" discrim for white individuals. Clearly a policy diffs. Only one voting rights case taken up by CRD/DoJ (last yr).
Shaw: Abdicated its responsibilities in terms of voting rights. Ignored advice of career attys. Decisions have been reasoned based on politics. Sup Crt has a case involving voter ID in Georgia coming before it [NOTE: Shaw corrects this, in later testimony; it is Indiana that has a Voter ID case coming before the Supreme Court, not Georgia]. Requirement for ID has been struck down by fed and state court decisions. Nothing is more telling than decisions as a matter of policy NOT to enforce civil rights laws using most aggressive laws made available.
Shaw: It's my hope that Mukasey's DoJ (if confirmed) that the substance and integrity of DoJ/CRD will be restored. DoJ is "crown jewel" when it comes to the law, exec branch. Hope that status is recaptured. After sitting here, listening to testimony of Adm. Hutson: I was asked about aftermath of 911, and I said then that I thought we might lose the soul of our nation. I hope that, under new leadership, the dept restores our nation in terms of Rule of Law.
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4:49 PM
Sen. Specter: note there's a strong consensus in favour of Judge Mukasey. This cmtee was instrumental in having a change made in DoJ, through our oversight hearings. If we had to summarize the difference btwn Gonzo and Mukasey, it could be done on Habeas Corpus: Gonzo said HC was not a constitutional right. Mukasey said you can't have a limit on HC if it's NOT a constitutional right.
(Specter has to leave to the Sen floor)
Cardin: introduces Mary Jo White (9 yrs as leader of USAtty's office of Nation; prosecuted white collar and int'l terrorism cases; pros. John Gotti and 1993 WTC bombings; director of NASDAQ in exec audit/policy cmtee; council of Foreign Affairs; College William & Mary and Columbia school of law)
Mary Jo White: Mukasey independent, fair minded, wealth of experience on bench and in private sector. DoJ in need of strong, respected leader...to secure nation against threat from al Qaeda and assoc'd terrorist networks, within rule of law. Confident that Mukasey will be a superb leader of Dept, vital to rights, safety and wellbeing of Americans. 1993-2002 worked w/Mukasey: presided over cases; intelligent, tempered, fair, etc. Deep admiration for him. Strongly support nom, along w/members of Defense Bar. Mukasey presided over complex trial of Blind Sheikh and 9 co-defendants, plot to blow up land-marks in Manhattan. Mukasey asked to deal w/difficult issues, keeping eye on ensuring fair proceeding for all parties.
White: oversee and manage >100 000 employees and many programs of DoJ. Although Mukasey hasn't presided over such a large Dept, he can do it--leads by example; organized, efficient, etc. As chief Judge of District court in NY, w/dozens of judges. Busiest and complex dockets.
White: Mukasey's leadership post-911 in Southern dist NY was essential. Worked hard to restore normal functioning, directed 2 court houses closed, reopened Manhattan crt Sept 18. As dist executive observed, just about everyone at courthouse came back to work that day. For this district, Mukasey made this possible. He will hit the ground running at DoJ and will inspire career lawyers, as well as USAttys. Thanks.
Cardin: introducing Judge John S. Martin (US Dist Judge NY, worked with Mukasey; served as asst. Sol Gen Washington DC; Manhattan College, worked on Court of Appeals for 2nd Circuit)
Judge John Martin: known Mukasey >30 yrs. Served together on Southern Dist NY. Intellect and humanity. I was chair of clerks cmtee. Able leader, sound advice, inspiring.
Martin: in both AG and district Judge, neither arrives at job with enough experience. Most NB, you learn that the law is above politics and that personal views have no place. He was a superb Dist Judge and will be a superb AG. I have had the pleasure of reading his opinions--thoughtful and intelligent jurist. He was willing to rethink a position. Once disagreed with an old Mukasey opinion; I told him so and he eventually changed his mind. I don't know many judges with the self-confidence and humility to change their position. Quality needed in a job as complex as AG.
Martin: unanimous views of former colleagues, lawyers etc that Mukasey will provide type of leadership that justice is being administered with integrity.
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5:14 PM
Cardin: Gov Thornburgh, if Mukasey calls you and asks for advice, to restore confidence w/in dept, but public confidence?
Thornburgh: take charge of Dept. Exhibit leadership qualities. Fill vacancies expeditiously, with people of high calibre. Visit personally w/leadership of each unit. Have "brown bag lunches" with staff lawyers. Make clear that he means business when it comes to reinvigorating dept.
Cardin: there are so many vacancies at DoJ. Would high on your list be trying to fill quickly?
Thornburgh: lately, discouraging to find "nobody home" when it comes to key decisions being made w/in DoJ. I'm sure he recognizes that he needs to seek out advice of persons who can fill these key positions. See that Dept in full running oder asap.
Cardin: R.Adm Hutson, I concur completely w/your testimony and I thank you for that. Mukasey did an excellent job before our committee but there was one area where we remain concerned--the US condoning any forms of torture. Mukasey was clear that torture is unconstitutional; clear he would pursue accountability, but then he was less than clear about circumstances where "torture" label would apply. Concerned US playing with definitions here. What's your assessment?
Adm. Hutson: the US as a nation and the AG as an ind'l has to be absolutely unequivocal and can't dance around definitions of what's "cruel" or "degrading." In past, never had to worry about that, b/c weren't close to the line. Now those definitions are NB. That same cleverness is going to come back to bite us. When Eisenhower et al looked at GCs, they did not look at them as limitations on our behaviour, but rather their behaviour (enemy's). We look at them just to see how to avoid the War Crimes Act. Torture is the method of choice of the lazy, the stupid and the pseudo-tough. It's unconstitutional, etc.
Cardin: I belong to the Helsinki Federation. I spend most of my time trying to defend behaviour of my own country. GTMO, signing stmts on torture, treatment of prisoners in Afghanistan or Iraq. Now when we equivocate, we subject ourselves to scrutiny.
Hutson: By the way, I was very troubled by Mukasey's responses to Sen. Durbin, earlier today. Besides "the rack" and "thumbscrews," waterboarding is perhaps the most iconic form of torture. Spanish Inquisition. Can't believe we're hearing ambiguity on whether or not it's torture.
Cardin: hope to get clear view from nominee that waterboarding is not acceptable under any circs.
Cardin: Prof. Johnson, want to know about release of opinions from OLC. Specter said that if Congress wants to do oversight, we need access to docs. If sensitive, can we not do closed-session? Need to know what advice is guiding the exec. Are we being unreasonable?
Johnson: No. Torture, etc especially. Infamous 2002 opinion of OLC destroyed our reputation in the world. We know that when Detainee Treatment act came out, signing stmt used to disavow. There are at least two more secret opinions on torture. How can democracy work if Pres interpreting in a way that is secret? How can Congress legislate w/o straight answer on how Pres interpreting "cruel and degrading" or "torture"? I'm not happy with closed-session proposal though: I think the public has a right to know how the Pres is interpreting these secret opinions, viz torture. The world should know our policy on interrogations.
Cardin: I agree with you. Need to make some concessions, perhaps redactions, but we should still be able to see these opinions.
Cardin: About contempt citations. If we need certain docs, and Pres thinks exec privilege, there needs to be a way for that to reach the courts. At this point, there should be little discretion at DoJ in meeting Grand Jury and issuing necessary indictments. Mukasey was very indefinite about this point.
Johnson: Mukasey cited OLC opinion from the time I was there (1990s?) Mukasey said DoJ should NOT advised in first place to use exec priv. Pres should be submitting to oversight. Pres hasn't been given accurate legal advice. It's difficult to turn around and prosecute somebody for doing what DoJ advised.
Cardin: I hope Mukasey, as AG, will be at the beginning stages of giving Pres advice, which I hope Pres will follow. I hope he has independence and strength of our Pres.
Cardin: Judge Martin, Ms. White, do you think Mukasey has the strength to stand up to Bush?
White: My money's on Mukasey. He'll stand up.
Martin: serving as Dist Judge, you get the understanding you have the power to enforce laws. He'll have no problem asserting his views.
Cardin: Mr. Shaw, I couldn't agree with you more on the disappointment in CRD/DoJ, voting rights, suppression, ID, housing, employment: shocking disappointment. Choice of cases disappointing. I hope that you can give us some guidelines as to what we should be looking for in new AG.
Shaw: correction in Georgia Voter ID case: not before Sup Crt. It's a case from Indiana that will be before SC.
Shaw: in CRD/DoJ, restoration of hiring in an apolitical way of career attorneys. Restore CRD and staff to what they once were. Also a good thing for AG and Asst AG of CRD to have some dialogue with some of the people who ran CRD under previous admins (both parties) + career attys who've left. Get advice on how to restore credibility. We find ourselves in disagreement w/DoJ, more than we agree. E.g. Louisville case, voluntary school segregation: first time since Brown v. Board Ed, SC came down against desegregation. Historic. Justice dept really has gone astray. Needs to revisit cases on behalf AF. Americans and Latinos. Consciously not bringing them forward. NAACP doesn't have resources to take all of these cases on ourselves.
Cardin: Mukasey was actually comforting in his comments wrt elections issues and CRD. He was clear he wouldn't tolerate political interference in this respect. Thank you for your role in this regard, Mr. Shaw.
Cardin: Mr. Canterbury, regarding violent crimes, you have seen Mukasey as a prosecutor and a judge. Will he be balanced and fair?
Canterbury: in conversations with fed, state and local officials, we're very pleased with Mukasey. AG also has oversight over ATF, FBI etc that we deal with daily, and we feel Mukasey has ability to encourage local/state/fed cooperation. "No Nonsense" approach.
Cardin: one other open-ended question---try to summarize concerns raised during confirmation hearings. e.g. the ability for Mukasey to be an independent voice on behalf of Americans. To not tolerate at all any political activities in hiring/firing career Attys. Influencing prosecutions. Will DoJ protect rule of law? Civil liberties? This is open-ended. Add whatever you like at this point.
Martin: Mukasey wasn't out of the political system. Picked on his merits, in NY, so he's not coming to this as a political figure.
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5:24 PM
Thornburgh: Mukasey said (in intro stmt) targeting and timing of prosecutions would be made w/o any consideration of politics involved. In terms of priorities, those are set by the Pres but Mukasey will be able to speak his mind and advocate for his priorities. His voice will be heard.
Rear Adm. Hutson: AG is chief law enforcement officer, sets tone down chain of command. All gov attys need to give independent advice. Know e.g.s of JAG advice ignored by DoJ (?). Wasn't till JAGs called before Congress that American people knew their views. NB for Mukasey ensure that opinions of subordinate employees don't always apply, but should be heard.
Johnson: need aggressive Congressional oversight. Goldsmith said same thing, few weeks ago. If there had been more before, Bush wouldn't have made so many mistakes. I'm encouraged by what I've heard on this panel about Mukasey's independence, but not enough if there's no Congressional oversight.
Cardin: proud of Leahy, Specter and their leadership. Right role for legislative branch.
Shaw: every lawyer at DoJ knows that the AG is a cabinet member and therefore political to some extent. When I was at DoJ, we wanted to know where the line was drawn, and wanted our superiors would listen to our analysis, but that they wouldn't make decisions on purely political grounds. Wanted AG and Asst AGs to go to bat for line attys and for the rule of law. We know esprit de corps is low at DoJ, they're demoralized. One of most NB challenges is to restore sense of confidence on part of career attys. That they're part of something that has integrity. Expect that, above all else, that even political appointees still make decisions based on rule of law.
Cardin: Thank you. We're all of the same objective. These hearings have helped us and we thank you for your testimony and patience. The hearing record will remain open for one week.
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Adjourned.
Photo Credit: AP Photo/Charles Dharapak, via ABCNews.com
NOTES: (a) this is not a transcript! Time 'stamps' indicate the time of posting.
(b) "Muk" refers to Michael Mukasey ;)
(c) First compiled on this message board, with the help of skdadl, my partner in all-things-Harrison-Ford ;) BTW, check out skdadl's coverage of the House hearings on the rendition and torture of Canadian Maher Arar.
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2:24 PM
Leahy: Specter was managing another bill on the floor. I want to cover one more point: I will have followup questions, and I would hope you'd look at them very srsly.
Specter: lot of controversy over McNulty and Thompson memos viz atty/client privilege, w/practice by DoJ to obtain waivers of atty/client privilege (white-collar, corporate crime); voluntary or NOT voluntary. Legislation pending which would eliminate that practice. Concerns: commonwealth of gov/state has burden to prove case; right to counsel protected and privilege NB. I was DA in city of Philly, and never consider asking defendant to prove his case out of his own mouth. Thompson/McNulty memos suggest waiver of facts/opinions. (NOT sure what Specter's talkin' aboot here)
Specter: is there a justification for having a waiver other than on a purely, purely voluntary basis?
Muk: right to counsel---in corporate setting, issue is what happened, how pervasive the conduct was, etc. A lot of focus has shifted to rights of corporation, waiver of atty/client priv. Corpses obligation/duty to find out facts and do reports. Cmtees do reports, and availability of reports helps prosecutors save time in finding out facts.
Specter: well, if director wants to waive privilege, ok, but employee has separate priv? If priv not waived, and there are tougher charges...pros atty is most powerful position in gov. Recommendation, coercive power...nobody ever told them before Thompson/McNulty memos.
Muk: particularly with corporations. The problem in memos is that when corpses want to say they're cooperating w/pros, the pros told when they're evaluating stds for whether cooperating or not, the degree to which corps discloses facts is one measure.
Specter: why should waiver of right det what the sentence recommendation would be? Sure, if you show contrition it should be mitigating factor, but why an aggravating factor?
Muk: a corpse, through ind'ls, always a question...haven't reviewed the McNulty memo recently. Not to be used as a club: not to tell corpse that you're not cooperative if you don't waive atty/client priv.
Specter: Leahy and I sat w/McNulty and couldn't find common ground. I know you haven't reviewed it, but if you could, we'd like to talk to you more about it. Leg going forward: feeling is far/wide that it is being misused. WE see what's happening w/Enron et al. But when constit'l right is involved, we'd like to see closer/careful analysis.
Specter: wrt request for testimony USAttys, I recommended to Gonzo that the best course would be to make full disclosure, whether justified in request for resignations. There are subpoenas outstanding, Miers & Rove, and tried to find way of accommodating Bush. He took this on himself to do televised news conference, not wanting Miers/Rove to testify. Not want them under oath. Not wanting a transcript---we said "not a good idea," for the protection of the ind'l, but we'd even agree to forego that (at least I would) but then they asked us for no followup. We can't agree to that. Can you take a close look at that? Help us resolve? Do you see a problem with asking for a transcript?
Muk: often a great benefit to everybody having a transcript, but it's often a lot easier to talk and get facts when someone isn't sitting there watching every syllable they say.
Specter: ? You are weighing every syllable now?
Leahy: there are 1/2 doz cameras here right now...
Specter: you might find it more friendly if we stopped the transcript (right now) *snerk*
Specter: ok we'll move on. About oversight: I've made it a practice to give letter to dep Atty Gen on essential oversight. Congressional Research Services analysis: would you agree that we have a legit scope of oversight, as in the CRS memo?
Muk: seems apparent that there are also instances that issues of priv will result in hesitancy to provide info. Case by case basis. I don't think that oversight is a zero-sum game, where everything disclosed is a "loss" to the Dept. benefits DoJ and Congress, high level of performance. I recognize that. Disputes have been worked out, historically.
Muk: the optimum case is where the kind of info provided wouldn't have any impact on pending litigation, privilege, etc.
Specter: we don't get very far with those limits...
Muk: not the sole determinant. This has always been worked out in the past.
Specter: Combatant status review board (CSRB) subject of review, yesterday. I ask you to review the case called under attn (GTMO, proceeding before CSRB where detainee charged w/assoc'n w/al Qaeda; stmt of Lt. Col. Stephen Abraham's account of CSRB). Sup Crt granted petition for rearguing case. Anticipation of oral argument has lead to gov coming up with another procedure that isn't explained. Close to federal court habeas corpus? Is the only difference the status/tenure of judge? Complaints that matters go on forever. Never know standing of people under investigation. Advised that some USAtty want to know if cases are really "over"--what is the policy? Wouldn't fair play be best served by telling people it's over?
Muk: if it's over, I agree it would be desirable to say so. Frequently uncertain. E.g. organized crime cases, it's regrettably hardly ever over.
Specter: if it's not clear, entitled to be notified.
Muk: difficult b/c it can hurt somebody more if there's a policy to notify; if it can't be done, then worse if they're expecting a decision (??)
Specter: you're impressive. Credentials, testimony here...unless witnesses called in support of your nom'n give highly damaging testimony, we expect you to be confirmed. Chairman and I and all members of cmtee will have a lot of contacts with you.
Muk: thanks.
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2:35 PM
Leahy: I much prefer a careful answer than 75-80 times "I don't know" *snerk*
Leahy: Goldsmith's book, Terror Presidency, I understand you've read; PBS Frontline "Cheney's law" the other night; Charlie Savage (Boston Globe) was featured in doc, the guy who wrote book on signing statements etc. The OLC change from traditional place in admin to a place where admin requests customized legal opinions. E.g. Goldsmith wrote that they wanted interrogators to have a blank check. Ask you to review opinions of OLC. Review those on exec privilege, congressional testimony...
Muk: I will
Leahy: I go by the assumption that if you don't change them, you agree with them. Would you agree that the office has to have independence?
Muk: yes.
Leahy: I've been here for 6 admin. Always had independence in OLC before now. Pres can't step outside law on issues of torture, wiretapping...talked to you privately about fact that DoJ is left in good hands for whomever takes over in the next administration. WE can both agree that we need a strong, ind, AG in DoJ. Threat to professionalism biggest since Sat Night Massacre. Former Deputy AG Harold Tyler, someone you & I admire, was appt'd to restore DoJ after Watergate. Hope that you, like Tyler, will restore Dept's integrity.
Leahy: You've testified that it will stand for the rule of law. Also stand for justice: nobody's above the law, not you or I, nor the Pres. The commutation of sentence of Scooter Libby, even before appeal served, see Pres promoting immunity over accountability. Unilateral power, w/o checks and balances. I don't believe the Pres is above the law; the view he may override the laws he chooses is dead wrong. Extremely dangerous. Costs will be staggering. Compounds lawlessness by conducting itself under veil of secrecy. I haven't known any admin who hasn't been helped in the long run by oversight. Having to admit mistakes.
Leahy: I do worry that there's been a retreat today, compared to yesterday about the Pres adhering to the rule of law. I will have followup letters and we will continue to meet on that. Worried about your overbroad views of Pres'l power. I agree with your opening statement, protecting liberties a part of protecting security. Hearing's going to start with a new chapter, where laws are no longer undercut in secret. Real test is not whether you'll be confirmed, but what kind of AG you will be. The oversight process and AG cooperation w/that process: confirmation by Senate is an act of trust; Oversight helps us verify (paraphrasing Reagan). Any last words before the next panel?
Muk: nothing to add. Grateful.
Cardin: votes called for 2:30 on the floor; should recess till 3:45 PM
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4:15 PM
Cardin: witnesses that know nominee and want to give testimony. It's tradition to swear you in.
(swearing in witnesses)
Cardin: Mr. [Dick] Thornburgh, AG for 2 presidents, elected Gov. Pennsylvania 1978; 2 terms. Three yrs as AG under Reagan and Bush I. Consultant to UN and World Bank. BA at Yale, Law at U Pittsburgh.
Gov Thornburgh: similar situation at DoJ as mine in Reagan yrs. Earlier AG (Ed Meese) under investigation by ind counsel. Some turmoil in dept. No prosecution of Meese but 1988 report was sufficiently critical that he resigned. I was sworn in shortly thereafter. I previously served for West district of PA, unique role in our federal govt. Early as AG, priority to restore morale, w/assistance of career employees.
Thornburgh: Today the DoJ is enduring unfortunate period of turmoil. At least 6 vacancies among Asst. Attys. Clement et al doing the best they can, though. Major vacancies in top leadership corps is making things tough.
Thornburgh: not passing judgement on firing of USAttys, but essential that prosecutorial function be carried out apolitically, must call evidence "without fear or favour"; independence NB. DoJ alone has power of criminal prosecution. You will hear from Mary Jo White and (one other) to testify on Mukasey's behalf.
Thornburgh: Mukasey served in Southern Dist NY, appt'd by Ronald Reagan. 18 yrs on fed bench. Earning reputation in major cases of importance. Salient qualities of person and critical need of the moment are well matched.
Thornburgh: moving, memorable e.g. 1989 when I lead 200th anniversary of office of AG. All living AGs attended, up to Herbert Brownell. Had Ethel Kennedy, widow of Robert F. Kennedy, too. (naming others in attendance) I'm confident that Mukasey will lead a period of renewal under exemplary leadership. Like to assoc self with views of Specter in today's WSJournal. Thank you, Mr. Chairman.
Chuck Canterbury (local lodge president of "Lodge Insurance Program," expanded police labour movement; Fraternal Order of Police; retired 2004 from S.C. police dept. Officer for 25 yrs): consider Sen. Leahy to be a stalwart for Law enforcement for the rank & file.
Canterbury: Mukasey distinguished service. 1987 nom'd federal bench, unanimous confirmation by Sen. Last 6 yrs as chief justice in federal court, S. District NY, including prosecution of Blind Sheikh, 1993 WTC bombing. This case earned him acclaim from peers and law-enforcement. 2nd Circuit appeals paid particular compliments on this case. Also presided over Padilla case: citizens should have access to attys. Mukasey argued in WSJournal that current systems are ill suited to handle prosecution of terror suspects w/o compromising national security and intelligence.
Canterbury: Frat order of Police strongly recommends Mukasey for AG. Want him there while we're considering issues of WoTerrorism. We are bargaining unit for >3 000 officers in country. We are satisfied with his record in criminal law. Keenly interested in cases he's ruled in on employees, particularly public employees. Skilled, even handed on those cases. Respected by law enforcement community. Glad to answer any questions.
Rear Adm. John Hutson (BA Michigan St; US Navy; U Minnesota law; chief defense counsel, Georgetown Univ law center Masters; office legislative affairs for Navy; 1989 Washington DC staff JAG asst cmdr investigative command; 1992/93 JAG navy; Rear Adm as JAG 1997; multiple medals, stars, commendations from Navy)
Rear Adm. Hutson: I was opposed to confirmation to Gonzales, former AG, along with Center for Victims of Torture and Prof Cole (David Cole?). I'm not here in opposition, but want to enter my concerns and make points:
Hutson: US is a country of laws, adhere to (or try to) rule of law; no one more NB than AG in this respect. Most of great nations who've failed have done so b/c domestic and foreign misadventure. This is possible now w/"GWoT": enemy can't defeat us militarily. Winning for the enemy is to cause us to change, to bring us down to his level, to cause us to be something diff than what we've been. Our great strength is human rights but...Bono said, "America not just a country, it's an idea"
Hutson: In an asymmetric war, pitting strength against weakness. Our strength is our ideals. Enemy abjectly devoid of ideals. Can't defeat us militarily, but we can commit national suicide by disarming ourselves of ideals. Bybee torture memo. Gonzales memo on GC. Suspension of Habeas Corpus. CSRT. GTMO. We can all say "US doesn't torture," but all you have to do is look at a newspaper for examples. The CIA "enhanced interrogation" techniques have been legalized by memos from DoJ.
Huston: in 1950, an armed forces officer said "US abides by the laws of war...wanton killing, torture, working of unusual or unnecessary hardship is not justified under any circumstances"..."cruelty or maltreatment: any shall be punished."
Huston: Common article III of the Geneva Conventions prohibits outrages upon personal dig, including humiliating or degrading treatment. The Supreme Court never said "part of CAIII applied," so it includes all of CAIII.
Hutson: need a clarion call. A repudiation of definitions of what has happened. It brings tears to your eyes. The US is not engaged in an existential struggle unless we make it so...it is the AG who will make the decision whether we are at a pendulum or a plateau.
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4:31 PM
Prof. Dawn Johnson (worked for ACLU, NARAL, exec branch of Clinton, AG Reno; in 1998, Prof Law at Indiana U, School of Law; constitutional lawyer):
Johnson: worked at OLC for 5 yrs as acting Asst AG. Core function to provide advice to exec branch, to act lawfully. OLC dangerously compromised under Bush. Under some counterterrorism matters, has abandoned trad'l role. Goldsmith wrote that some Bush-era OLC opinions were "overly broad," "sloppily reasoned"..."akin to a get out of jail free card"
Johnson: Congress should demand release of these OLC opinions. Stmt of 10 principles to guide OLC. Submitted entire stmt of 10 principles to cmtee: e.g. when providing advice, OLC should provide an honest appraisal of law, even if in conflict with exec desires. i.e. has to be ready to tell Pres "NO"; deeply appreciate role of DoJ of protecting country from terrorism. But, thinking of warrantless wiretap, tortures, etc, question was whether the Pres would work unilaterally or would he comply w/constit'l lawmaking procedures. Pres has consistently gone it alone.
Johnson: DoJ must avoid Secret Law. Should disclose opinions in timely manner. Exec has some legit needs for secrecy. But if doesn't comply w/statutes or law. e.g. violation of common article III. Congress needs those secret OLC opinions that interpret Detainee Treatment Act. Congress and next AG must confront problem that ultimately lies with President, not DoJ. Deeply hostile to any checks on counterterrorism policy. AG should scrutinize OLC's work and restore OLC's traditional role. This cmtee should engage in aggressive oversight.
Theodore Shaw (counsel NAACP legal defense and education fund; school desegregation, death penalty, civil rights; Wesleyan (SP?), Columbia school of law; resigned from Reagan's DoJ in protest over civil rights division issues): attended alumni reunion of civil rights division; no one from Bush admin's DoJ civil rights division attended. Present leadership of DoJ/CRD needs to change. Healing, restoration of CRD. Core mission of CRD was the battle against racial discrimination, particularly African americans in the beginning, but much more broad now. While CRD mandate has expanded as it should have (women, disabled, etc), we believe there's a manifest imbalance that has clapped up in recent years. CRD does rel. little work on behalf of Af. Americans these days. While in office, last 6.5 yrs, dept only brought 5 cases under Sec 706 Title 7; brought 3 so-called "reverse" discrim for white individuals. Clearly a policy diffs. Only one voting rights case taken up by CRD/DoJ (last yr).
Shaw: Abdicated its responsibilities in terms of voting rights. Ignored advice of career attys. Decisions have been reasoned based on politics. Sup Crt has a case involving voter ID in Georgia coming before it [NOTE: Shaw corrects this, in later testimony; it is Indiana that has a Voter ID case coming before the Supreme Court, not Georgia]. Requirement for ID has been struck down by fed and state court decisions. Nothing is more telling than decisions as a matter of policy NOT to enforce civil rights laws using most aggressive laws made available.
Shaw: It's my hope that Mukasey's DoJ (if confirmed) that the substance and integrity of DoJ/CRD will be restored. DoJ is "crown jewel" when it comes to the law, exec branch. Hope that status is recaptured. After sitting here, listening to testimony of Adm. Hutson: I was asked about aftermath of 911, and I said then that I thought we might lose the soul of our nation. I hope that, under new leadership, the dept restores our nation in terms of Rule of Law.
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4:49 PM
Sen. Specter: note there's a strong consensus in favour of Judge Mukasey. This cmtee was instrumental in having a change made in DoJ, through our oversight hearings. If we had to summarize the difference btwn Gonzo and Mukasey, it could be done on Habeas Corpus: Gonzo said HC was not a constitutional right. Mukasey said you can't have a limit on HC if it's NOT a constitutional right.
(Specter has to leave to the Sen floor)
Cardin: introduces Mary Jo White (9 yrs as leader of USAtty's office of Nation; prosecuted white collar and int'l terrorism cases; pros. John Gotti and 1993 WTC bombings; director of NASDAQ in exec audit/policy cmtee; council of Foreign Affairs; College William & Mary and Columbia school of law)
Mary Jo White: Mukasey independent, fair minded, wealth of experience on bench and in private sector. DoJ in need of strong, respected leader...to secure nation against threat from al Qaeda and assoc'd terrorist networks, within rule of law. Confident that Mukasey will be a superb leader of Dept, vital to rights, safety and wellbeing of Americans. 1993-2002 worked w/Mukasey: presided over cases; intelligent, tempered, fair, etc. Deep admiration for him. Strongly support nom, along w/members of Defense Bar. Mukasey presided over complex trial of Blind Sheikh and 9 co-defendants, plot to blow up land-marks in Manhattan. Mukasey asked to deal w/difficult issues, keeping eye on ensuring fair proceeding for all parties.
White: oversee and manage >100 000 employees and many programs of DoJ. Although Mukasey hasn't presided over such a large Dept, he can do it--leads by example; organized, efficient, etc. As chief Judge of District court in NY, w/dozens of judges. Busiest and complex dockets.
White: Mukasey's leadership post-911 in Southern dist NY was essential. Worked hard to restore normal functioning, directed 2 court houses closed, reopened Manhattan crt Sept 18. As dist executive observed, just about everyone at courthouse came back to work that day. For this district, Mukasey made this possible. He will hit the ground running at DoJ and will inspire career lawyers, as well as USAttys. Thanks.
Cardin: introducing Judge John S. Martin (US Dist Judge NY, worked with Mukasey; served as asst. Sol Gen Washington DC; Manhattan College, worked on Court of Appeals for 2nd Circuit)
Judge John Martin: known Mukasey >30 yrs. Served together on Southern Dist NY. Intellect and humanity. I was chair of clerks cmtee. Able leader, sound advice, inspiring.
Martin: in both AG and district Judge, neither arrives at job with enough experience. Most NB, you learn that the law is above politics and that personal views have no place. He was a superb Dist Judge and will be a superb AG. I have had the pleasure of reading his opinions--thoughtful and intelligent jurist. He was willing to rethink a position. Once disagreed with an old Mukasey opinion; I told him so and he eventually changed his mind. I don't know many judges with the self-confidence and humility to change their position. Quality needed in a job as complex as AG.
Martin: unanimous views of former colleagues, lawyers etc that Mukasey will provide type of leadership that justice is being administered with integrity.
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5:14 PM
Cardin: Gov Thornburgh, if Mukasey calls you and asks for advice, to restore confidence w/in dept, but public confidence?
Thornburgh: take charge of Dept. Exhibit leadership qualities. Fill vacancies expeditiously, with people of high calibre. Visit personally w/leadership of each unit. Have "brown bag lunches" with staff lawyers. Make clear that he means business when it comes to reinvigorating dept.
Cardin: there are so many vacancies at DoJ. Would high on your list be trying to fill quickly?
Thornburgh: lately, discouraging to find "nobody home" when it comes to key decisions being made w/in DoJ. I'm sure he recognizes that he needs to seek out advice of persons who can fill these key positions. See that Dept in full running oder asap.
Cardin: R.Adm Hutson, I concur completely w/your testimony and I thank you for that. Mukasey did an excellent job before our committee but there was one area where we remain concerned--the US condoning any forms of torture. Mukasey was clear that torture is unconstitutional; clear he would pursue accountability, but then he was less than clear about circumstances where "torture" label would apply. Concerned US playing with definitions here. What's your assessment?
Adm. Hutson: the US as a nation and the AG as an ind'l has to be absolutely unequivocal and can't dance around definitions of what's "cruel" or "degrading." In past, never had to worry about that, b/c weren't close to the line. Now those definitions are NB. That same cleverness is going to come back to bite us. When Eisenhower et al looked at GCs, they did not look at them as limitations on our behaviour, but rather their behaviour (enemy's). We look at them just to see how to avoid the War Crimes Act. Torture is the method of choice of the lazy, the stupid and the pseudo-tough. It's unconstitutional, etc.
Cardin: I belong to the Helsinki Federation. I spend most of my time trying to defend behaviour of my own country. GTMO, signing stmts on torture, treatment of prisoners in Afghanistan or Iraq. Now when we equivocate, we subject ourselves to scrutiny.
Hutson: By the way, I was very troubled by Mukasey's responses to Sen. Durbin, earlier today. Besides "the rack" and "thumbscrews," waterboarding is perhaps the most iconic form of torture. Spanish Inquisition. Can't believe we're hearing ambiguity on whether or not it's torture.
Cardin: hope to get clear view from nominee that waterboarding is not acceptable under any circs.
Cardin: Prof. Johnson, want to know about release of opinions from OLC. Specter said that if Congress wants to do oversight, we need access to docs. If sensitive, can we not do closed-session? Need to know what advice is guiding the exec. Are we being unreasonable?
Johnson: No. Torture, etc especially. Infamous 2002 opinion of OLC destroyed our reputation in the world. We know that when Detainee Treatment act came out, signing stmt used to disavow. There are at least two more secret opinions on torture. How can democracy work if Pres interpreting in a way that is secret? How can Congress legislate w/o straight answer on how Pres interpreting "cruel and degrading" or "torture"? I'm not happy with closed-session proposal though: I think the public has a right to know how the Pres is interpreting these secret opinions, viz torture. The world should know our policy on interrogations.
Cardin: I agree with you. Need to make some concessions, perhaps redactions, but we should still be able to see these opinions.
Cardin: About contempt citations. If we need certain docs, and Pres thinks exec privilege, there needs to be a way for that to reach the courts. At this point, there should be little discretion at DoJ in meeting Grand Jury and issuing necessary indictments. Mukasey was very indefinite about this point.
Johnson: Mukasey cited OLC opinion from the time I was there (1990s?) Mukasey said DoJ should NOT advised in first place to use exec priv. Pres should be submitting to oversight. Pres hasn't been given accurate legal advice. It's difficult to turn around and prosecute somebody for doing what DoJ advised.
Cardin: I hope Mukasey, as AG, will be at the beginning stages of giving Pres advice, which I hope Pres will follow. I hope he has independence and strength of our Pres.
Cardin: Judge Martin, Ms. White, do you think Mukasey has the strength to stand up to Bush?
White: My money's on Mukasey. He'll stand up.
Martin: serving as Dist Judge, you get the understanding you have the power to enforce laws. He'll have no problem asserting his views.
Cardin: Mr. Shaw, I couldn't agree with you more on the disappointment in CRD/DoJ, voting rights, suppression, ID, housing, employment: shocking disappointment. Choice of cases disappointing. I hope that you can give us some guidelines as to what we should be looking for in new AG.
Shaw: correction in Georgia Voter ID case: not before Sup Crt. It's a case from Indiana that will be before SC.
Shaw: in CRD/DoJ, restoration of hiring in an apolitical way of career attorneys. Restore CRD and staff to what they once were. Also a good thing for AG and Asst AG of CRD to have some dialogue with some of the people who ran CRD under previous admins (both parties) + career attys who've left. Get advice on how to restore credibility. We find ourselves in disagreement w/DoJ, more than we agree. E.g. Louisville case, voluntary school segregation: first time since Brown v. Board Ed, SC came down against desegregation. Historic. Justice dept really has gone astray. Needs to revisit cases on behalf AF. Americans and Latinos. Consciously not bringing them forward. NAACP doesn't have resources to take all of these cases on ourselves.
Cardin: Mukasey was actually comforting in his comments wrt elections issues and CRD. He was clear he wouldn't tolerate political interference in this respect. Thank you for your role in this regard, Mr. Shaw.
Cardin: Mr. Canterbury, regarding violent crimes, you have seen Mukasey as a prosecutor and a judge. Will he be balanced and fair?
Canterbury: in conversations with fed, state and local officials, we're very pleased with Mukasey. AG also has oversight over ATF, FBI etc that we deal with daily, and we feel Mukasey has ability to encourage local/state/fed cooperation. "No Nonsense" approach.
Cardin: one other open-ended question---try to summarize concerns raised during confirmation hearings. e.g. the ability for Mukasey to be an independent voice on behalf of Americans. To not tolerate at all any political activities in hiring/firing career Attys. Influencing prosecutions. Will DoJ protect rule of law? Civil liberties? This is open-ended. Add whatever you like at this point.
Martin: Mukasey wasn't out of the political system. Picked on his merits, in NY, so he's not coming to this as a political figure.
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5:24 PM
Thornburgh: Mukasey said (in intro stmt) targeting and timing of prosecutions would be made w/o any consideration of politics involved. In terms of priorities, those are set by the Pres but Mukasey will be able to speak his mind and advocate for his priorities. His voice will be heard.
Rear Adm. Hutson: AG is chief law enforcement officer, sets tone down chain of command. All gov attys need to give independent advice. Know e.g.s of JAG advice ignored by DoJ (?). Wasn't till JAGs called before Congress that American people knew their views. NB for Mukasey ensure that opinions of subordinate employees don't always apply, but should be heard.
Johnson: need aggressive Congressional oversight. Goldsmith said same thing, few weeks ago. If there had been more before, Bush wouldn't have made so many mistakes. I'm encouraged by what I've heard on this panel about Mukasey's independence, but not enough if there's no Congressional oversight.
Cardin: proud of Leahy, Specter and their leadership. Right role for legislative branch.
Shaw: every lawyer at DoJ knows that the AG is a cabinet member and therefore political to some extent. When I was at DoJ, we wanted to know where the line was drawn, and wanted our superiors would listen to our analysis, but that they wouldn't make decisions on purely political grounds. Wanted AG and Asst AGs to go to bat for line attys and for the rule of law. We know esprit de corps is low at DoJ, they're demoralized. One of most NB challenges is to restore sense of confidence on part of career attys. That they're part of something that has integrity. Expect that, above all else, that even political appointees still make decisions based on rule of law.
Cardin: Thank you. We're all of the same objective. These hearings have helped us and we thank you for your testimony and patience. The hearing record will remain open for one week.
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Adjourned.
Photo Credit: AP Photo/Charles Dharapak, via ABCNews.com
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