[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                         DEPARTMENT OF JUSTICE

=======================================================================

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                            FEBRUARY 7, 2008

                               __________

                           Serial No. 110-119

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
ROBERT WEXLER, Florida               RIC KELLER, Florida
LINDA T. SANCHEZ, California         DARRELL ISSA, California
STEVE COHEN, Tennessee               MIKE PENCE, Indiana
HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio                   STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota

            Perry Apelbaum, Staff Director and Chief Counsel


                            C O N T E N T S

                              ----------                              

                            FEBRUARY 7, 2008

                                                                   Page

                           OPENING STATEMENTS

The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Chairman, Committee on the 
  Judiciary......................................................     1
The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Member, Committee on 
  the Judiciary..................................................     2
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Ranking Member, Committee on the Judiciary.     3

                                WITNESS

The Honorable Michael Mukasey, Attorney General, U.S. Department 
  of Justice
  Oral Testimony.................................................     4
  Prepared Statement.............................................     8

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas, and Member, 
  Committee on the Judiciary.....................................    83
Prepared Statement of the Honorable Darrell Issa, a 
  Representative in Congress from the State of California, and 
  Member, Committee on the Judiciary.............................    88
Prepared Statement of the Honorable Steve Cohen, a Representative 
  in Congress from the State of Tennessee, and Member, Committee 
  on the Judiciary...............................................    88
Letters dated February 7, 2008, from the Honorable Sheila Jackson 
  Lee to the Honorable Michael B. Mukasey, Attorney General of 
  the United States..............................................    89
H.R. 4545, ``A bill to target cocaine kingpins and address 
  sentencing disparity between crack and powder cocaine''........    94
Letter dated January 31, 2008, from the Honorable John Conyers, 
  Jr. to the Honorable Michael B. Mukasey, Attorney General of 
  the United States..............................................   118
Post-Hearing Questions posed by the Honorable John Conyers, Jr., 
  the Honorable Robert C. ``Bobby'' Scott, the Honorable Linda T. 
  Sanchez, the Honorable Keith Ellison, and the Honorable Robert 
  Goodlatte to the Honorable Michael B. Mukasey, Attorney General 
  of the United States...........................................   122
Letter dated June 2, 2008, from Keith B. Nelson, Principal Deputy 
  Assistant Attorney General, Office of Legislative Affairs, U.S. 
  Department of Justice, providing documents in response to post-
  hearing questions posed by the Honorable Robert C. ``Bobby'' 
  Scott..........................................................   163
  G(Due to its volume, the document production is not printed in 
  the hearing record but is on file with the House Committee on 
  the Judiciary)
Answers to Post-Hearing Questions provided by the U.S. Department 
  of Justice, dated July 16, 2008................................   164
Answers to Post-Hearing Questions provided by the U.S. Department 
  of Justice, dated July 18, 2008................................   196


                         DEPARTMENT OF JUSTICE

                              ----------                              


                       THURSDAY, FEBRUARY 7, 2008

                          House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 11:05 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable John 
Conyers, Jr. (Chairman of the Committee) presiding.
    Present: Representatives Conyers, Berman, Nadler, Scott, 
Watt, Lofgren, Jackson Lee, Waters, Delahunt, Wexler, Sanchez, 
Cohen, Johnson, Sutton, Weiner, Schiff, Davis, Ellison, Smith, 
Sensenbrenner, Coble, Goodlatte, Chabot, Lungren, Cannon, Issa, 
Forbes, King, Feeney, Gohmert, and Jordan.
    Staff present: Sam Sokol, Majority Counsel; and Crystal 
Jeziersky, Minority Counsel.
    Mr. Conyers. Good morning.
    The Committee will come to order.
    I am pleased to welcome the Attorney General of the United 
States, Mr. Michael Mukasey, who oversees what I consider to be 
the most important agency in the Federal Government, with 
jurisdiction over voting rights, civil rights, criminal and 
civil justice, antitrust, intellectual property enforcement, 
and bankruptcy, to name the major areas.
    He assumes a very large responsibility, and I look forward 
to a productive relationship between him and the Members of 
this Committee.
    At the outset, I note that the Attorney General did not 
respond in advance to the five areas of questions I outlined in 
my letter to him of last week, because we know how truncated 
the 5-minute rule is, with all of our Members and him.
    The 5-minute rule is always the more efficient mechanism 
for disclosing information, while written questions submitted 
after a hearing takes months to respond to. And so I hope that 
we receive timely written responses to any questions that may 
need further expansion on after the hearing.
    I would like to emphasize the areas that I would point to 
the Attorney General as very important to me.
    I continue to be frustrated by the Administration's failure 
to fully and frankly address our Nation's position on the 
odious practice of waterboarding.
    During confirmation proceedings, Mr. Mukasey was asked 
about waterboarding and said he would examine the underlying 
memos and underlying facts about what this country has done and 
try to explain it to Congress. But after his confirmation he 
has not stated whether waterboarding is torture or illegal, 
saying there are some circumstances that current law would 
appear to prohibit and other circumstances would present a far 
closer question.
    Just this week, we learned that the Central Intelligence 
Agency agents have engaged in waterboarding, and that Federal 
prosecutors appear to have known about the destruction of CIA 
interrogation tapes for more than a year before taking any 
action.
    My question today is, will the Attorney General tell us, 
today, here, whether he is willing to conduct a criminal 
investigation into these confirmed incidents of waterboarding?
    Now, no issue is more important to most of us on this 
Committee than the voting rights and fair access to the ballot 
box.
    I have high hopes that the department and this Committee 
can work together to ensure that the 2008 elections are as fair 
and open--more so than any in our history.
    We already have concerns about voting problems and 
questionable tactics in the ongoing presidential primaries. And 
I hope that the Attorney General will tell us and work with on 
exactly what we all need to do together, his Committee--his 
department, our Committee, Senate Judiciary Committee, to set 
up the comprehensive working operation with the Voting Section 
in his department, and staff, so that we can ensure that every 
available resource is being deployed to protect the most valued 
right in a democracy, to cast the vote and have it counted.
    I yield a minute to Bobby Scott, Chairman of the Crime 
Subcommittee. Then I will return to the Ranking Member, Mr. 
Smith.
    Mr. Scott. Thank you. Thank you, Mr. Chairman. And I thank 
the Attorney General for being with us today.
    And I want to express my appreciation for your willingness 
to cooperate with us and attend this hearing.
    I talked to you yesterday, and indicated that we had a 
hearing recently about a young lady that was raped in Iraq that 
needed to be investigated. We had a hearing on that, and the 
Justice Department did not send a representative.
    I understand that we are going to do better than that in 
the future. We need to look into civil rights, religious 
discrimination, to make sure that Federal contractors are not 
able to discriminate based on religion and other civil rights 
cases where--and we talked yesterday about a case in North 
Carolina where a person was held, apparently, without with a 
trial date for well over a year. We need to make sure that the 
Justice Department actually looks into cases like that, and we 
can count on you and the Department of Justice in looking into 
cases like that to make sure that civil rights are not being 
violated.
    Human trafficking cases need to be prosecuted.
    And, finally, crack/powder cocaine disparity--the 
Sentencing Commission unanimously agreed that existing crack/
powder disparity was unjust, that it was racially 
discriminatory.
    And I just wanted to quote what a Republican-appointed 
judge, who indicated that, ``We need to have faith in the 
American judicial system to do all that we can do to ensure 
that violent offenders are not released early and to address 
fundamental injustices in the criminal justice process.'' 
Judges--he mentions, ``Judges can be responsible in exercising 
their discretion to make sure that the wrong people are not 
released.''
    Over the next 7 to 10 years, 20,000 people will be released 
under this adjustment. Six hundred thousand people are released 
from jails and prisons every year.
    Mr. Conyers. The gentleman's time has expired.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Conyers. I am pleased now to turn to our Ranking 
Member, Lamar Smith of Texas, for his opening statement.
    Mr. Smith. Thank you, Mr. Chairman.
    General Mukasey, first of all, congratulations to you on 
your confirmation. And, also, welcome to your first appearance 
before the House Judiciary Committee.
    Last year was a difficult year for the Department of 
Justice. It was a year during which the department and its 
dedicated employees were shrouded by the controversy created 
after the resignation of several U.S. attorneys.
    Responding to the U.S. attorneys resignations, the 
Committee conducted vigorous oversight, holding 15 hearings, 
interviewing 20 Administration officials, and reviewing 8,500 
pages of documents.
    Yet, at the end of the review, all we found was that the 
Administration officials had already admitted poor management 
of a legal process.
    The Committee last year spent more time on White House 
personnel investigations than on national security, violent 
crime and sexual predators combined.
    Preventing another terrorist attack is the most critical 
work facing the department today. Just this week, the director 
of national intelligence, Admiral Michael McConnell, warned 
that Al Qaida is increasing its preparations for an attack on 
the United States. Terrorists planned an attack on the White 
House as recently as 2006.
    The Foreign Intelligence Surveillance Act, FISA, is 
critical to our ability to prevent terrorist attacks on our 
Nation. Today the Senate continues its consideration of 
legislation to modernize FISA. This bipartisan bill, negotiated 
with the Administration, updates our intelligence laws to 
mirror today's technologies and provides liability protection 
to the telecommunication companies.
    The Protect America Act expires next week. The Senate must 
pass a strong bipartisan bill. And when they do, the House must 
act quickly to pass the bill and send it to the President.
    This is not the time for partisanship. This is the time for 
responsible action.
    Additionally, I look forward to hearing from you on the 
progress of the National Security Division, created by the 
Patriot Act reauthorization to streamline the department's 
counterterrorism work.
    The Justice Department also plays an important role in 
protecting the American economy. Counterfeiting and piracy of 
intellectual property cost American jobs, reduces American 
prosperity, and threatens the existence of American companies. 
I look forward to hearing from you regarding your efforts in 
this area as well.
    As we enter a presidential election year, we are reminded 
of the department's role in enforcing Federal election laws. We 
must maintain the integrity of our election process by ensuring 
that all qualified citizens are eligible to vote and that these 
votes counted--are counted fairly and honestly.
    We must also ensure that individuals who are not eligible 
to vote do not exploit this essential freedom.
    I realize that enforcing election laws opens the department 
up to criticism from those who would claim voter intimidation. 
But our right to vote is meaningless unless it is legal and 
protected.
    The department must vigorously preserve the integrity of 
the election process by enforcing the election laws Congress 
has enacted.
    I am also very concerned by the March 3 deadline you 
mention in your statement. If Congress does not act now, 1,600 
convicted crack cocaine dealers will be eligible for immediate 
release into our communities nationwide. Many of these 
criminals are dangerous repeat offenders who possessed firearms 
during the commission of their crimes.
    The early release of these individuals poses a significant 
threat to Americans' neighborhoods. And that is why last 
December I, along with eight of my Republican colleagues on 
this Committee, introduced legislation to amend the Federal 
sentencing guidelines. A strong Justice Department is in the 
best interest of the American people. The Committee must 
refocus its efforts to help the brave men and women of the 
Justice Department to better enforce the law, protect America 
from future attacks, fight crime, and ensure justice for all.
    General Mukasey, I look forward to hearing from you 
regarding the state of the department, and to working with you 
to ensure that the department functions at the highest level 
possible.
    And again, thank you for being here today.
    Mr. Conyers. Thank you, Lamar Smith.
    Attorney General Mukasey brings a long, distinguished 
background to the Department of Justice: a Yale Law School 
graduate, a longtime practicing attorney, a Federal prosecutor, 
and then a member of the firm of Patterson, Belknap, Webb and 
Tyler.
    In 1988, he was appointed a trial judge in the Manhattan 
Federal court by President Reagan, and served in that post for 
18 years, including 6 of which he was the chief judge of the 
district.
    On his retirement, he returned the practice, only to be 
called back to public service and was nominated by President 
Bush and confirmed by the United States as Attorney General in 
the fall of 2007.
    On behalf of the entire Committee, we welcome you to our 
hearing and encourage you to respond to as much of the 
questions that have been put to you already as you can.

 TESTIMONY OF THE HONORABLE MICHAEL MUKASEY, ATTORNEY GENERAL, 
                   U.S. DEPARTMENT OF JUSTICE

    Mr. Mukasey. Thank you, Mr. Chairman.
    Chairman Conyers, Ranking Member Smith and Members of the 
Committee, thank you for the opportunity to testify about the 
important work being carried out by the men and women of the 
Department of Justice and for permitting me to highlight the 
key challenges that lie ahead.
    In the short time that I have been at the department, I 
have confirmed what I hoped and expected to find: men and women 
who are talented, committed, and dedicated to fulfilling its 
historic mission.
    That mission is to advance justice by defending the 
interests of the United States according to the law; to protect 
Americans against foreign and domestic threats; to seek just 
punishment for those who violate our laws; to assist our state 
and local partners in combating violent crime and other 
challenges; and to ensure the fair and impartial administration 
of justice by protecting the civil rights and liberties that 
are the birthright of all Americans.
    These values are central to the mission of the department, 
and defining features of our democracy. And I thank the 
Committee for its efforts to help realize them.
    During my tenure, I have sought opportunities to work with 
Congress to ensure that the department is provided the 
statutory tools necessary to fulfill the department's crucial 
mandate.
    I have also sought to keep Congress apprised of the 
department's activities and policy positions, where possible, 
and to respond to the Committee's oversight requests in a 
spirit of inter-branch comity that respects the institutional 
interests of the department and the Congress.
    I pledge to maintain this commitment throughout my tenure 
as Attorney General of the United States.
    I would like to focus on two crucial legislative issues 
pending before Congress: the pending expiration of the Protect 
America Act and the pending effective date of the United States 
Sentencing Commission's decision to make a wide range of 
violent drug offenders eligible for a retroactive reduction of 
their sentence. I hope to work with Members of this Committee 
to address each of these problems.
    As this Committee is aware, the Protect America Act will 
soon sunset, but threats to our national security will not 
expire with it. The statements and orders of Al Qaida and 
related organizations do not come with a sunset provision.
    I urge Congress to pass long-term legislation to update the 
Foreign Intelligence Surveillance Act, known as FISA, to ensure 
that this statute addresses present and emerging threats to our 
national security.
    S. 2248, the FISA Amendments Act of 2008, includes tools 
contained in the Protect America Act that have allowed us to 
close critical intelligence gaps.
    In addition, this legislation protects telecommunications 
companies now under legal assault because they are believed to 
have responded to the government's call for assistance in the 
aftermath of September 11.
    The Protect America Act is set to expire in just days and 
it is vital that Congress enact long-term FISA modernization 
legislation, with retroactive immunity, before that Act 
expires.
    S. 2248, which is a strong, bipartisan bill, reported out 
of the Senate Select Committee on Intelligence by a 13-2 
margin, is a balanced bill that includes many sound provisions 
that would allow our intelligence community to continue 
obtaining the information it needs to protect the security of 
America while protecting the civil liberties of Americans.
    Modernization of FISA is a critical part of this effort. 
The department will have grave concern about any legislative 
proposal that ignores the continuing nature of the terrorist 
threat, that denies the intelligence community and law 
enforcement the long-term statutory tools necessary to defend 
the United States.
    The department respects the oversight authority of 
Congress. But sunset provisions create uncertainty in the 
intelligence community and stifle the development of stable 
partnerships necessary to detect, deter and disrupt threats to 
our national security.
    It is also critical that Congress provide liability 
protection to electronic communication service providers in 
enacting a reauthorization bill.
    Contrary to the assertions of some, the legal protections 
contained in the S. 2248 bill do not confer blanket immunity. 
Rather, protections apply in limited and appropriate 
circumstances as reviewed by a court.
    We believe this approach represents the best way to provide 
retroactive immunity against these claims, and urge Congress to 
pass legislation containing these protections.
    While we appreciate the work of the House of 
Representatives in holding hearings and considering the 
challenges posed by the outdated provisions of FISA, the bill 
passed by the House, H.R. 3773, falls far short of providing 
the intelligence community with the tools it needs to collect 
foreign intelligence effectively from individuals located 
outside the United States.
    We cannot support this bill, which does not provide 
liability protection, would sunset in less than 2 years, 
requires private court--prior court approval of acquisitions 
targeting persons outside the United States except in 
emergencies, and limits the type of foreign intelligence 
information that may be collected.
    I would now like to focus on an issue that will have an 
impact on community safety nationwide: the Sentencing 
Commission's decision to apply retroactively, effective March 
3, 2008, a newer and lower guideline sentencing range for crack 
cocaine trafficking offenses.
    Unless Congress acts by the March 3 deadline, nearly 1,600 
convicted crack dealers, many of them violent gang members, 
will be eligible for immediate release into communities 
nationwide. Retroactive application of these new lower 
guidelines will pose significant public safety risks.
    Many of these offenders are among the most serious and 
violent offenders in the Federal system, and their early 
release, without the benefit of appropriate reentry programs, 
at a time when violent crime has increased in some communities, 
will produce tragic but predictable results.
    Moreover, retroactive application of these penalties will 
be difficult for the legal system to administer, given the 
large number of cases eligible for resentencing, now estimated 
at upwards of 20,000, and uncertainties as to certain key legal 
issues that remain unresolved.
    I understand the commitment of Members of this Committee to 
community safety and would appreciate the opportunity to work 
with this Committee and this house to address the retroactivity 
issue in an expedient manner, while beginning discussions on 
changes to the current statutory differential between crack and 
powder cocaine offenses.
    Let me conclude with the following observation. While 
differences between this Committee and the department are 
inevitable and are consistent with the institutional tension 
embodied in the Constitution, which is our founding document, 
it is worthwhile to remember what unites us.
    We each swear an oath to defend the Constitution of the 
United States and to uphold the high ideals of public service 
to which we are entrusted. We must not lose sight of the common 
goals and common purpose that unify the Department of Justice 
and Members of this Committee who support its historic and 
ongoing mission.
    I have submitted a more extensive statement for the hearing 
record and would be pleased to answer any questions that you 
might have.
    Thank you very much.
    [The prepared statement of Mr. Mukasey follows:]

         Prepared Statement of the Honorable Michael B. Mukasey























































    Mr. Conyers. Thank you very much, Mr. Attorney General.
    Let me ask you, have you any additional comments to make 
about the issue of waterboarding now that the CIA director has 
confirmed that that has, in effect, happened in--under our 
government?
    Mr. Mukasey. If you wish to address a question to that, I 
am happy to answer a question. I could simply talk and then 
risk not answering the question that you had in mind. So if you 
wish to pose a particular question, fine. I am prepared to 
answer particular questions relating to that.
    Mr. Conyers. Well, are you ready to start a criminal 
investigation into whether this confirmed use of waterboarding 
by United States agents was illegal?
    Mr. Mukasey. That is a direct question, and I will give a 
direct answer.
    No, I am not, for this reason: Whatever was done as part of 
a CIA program at the time that it was done was the subject of a 
Department of Justice opinion through the Office of Legal 
Counsel and was found to be permissible under the law as it 
existed then.
    For me to use the occasion of the disclosure that that 
technique was once part of the CIA program--an authorized part 
of the CIA program, would be for me to tell anybody who relied, 
justifiably, on a Justice Department opinion that not only may 
they no longer rely on that Justice Department opinion, but 
that they will now be subject to criminal investigation for 
having done so.
    That would put in question not only that opinion, but also 
any other opinion from the Justice Department.
    Essentially, it would tell people: ``You rely on a Justice 
Department opinion as part of a program, then you will be 
subject to criminal investigation when, as and if the tenure of 
the person who wrote the opinion changes or, indeed, the 
political winds change.'' And that is not something that I 
think would be appropriate and it is not something I will do.
    Mr. Conyers. Are you prepared to let us get a copy of the 
Office of Legal Counsel opinion?
    Mr. Mukasey. The Office of Legal Counsel opinion discusses 
particular techniques that were part of what remains a 
classified program.
    We have, I believe, provided an unclassified discussion of 
general legal principles--did it back in 2004. And we have 
provided some classified briefings with regard to the legal 
reasoning underlying opinions, and are prepared to continue to 
do so.
    But the opinions themselves can't simply be turned over 
because they discuss not simply legal reasoning, but the 
program itself, which remains classified.
    Mr. Conyers. Well, every Member of this Committee is 
cleared for top secret information.
    Mr. Mukasey. The opinions themselves dealt with a program 
that--to the extent the opinions themselves deal with a 
current--opinions relating to a past program cannot simply be 
disclosed in that fashion. They can be the subject of 
briefings, and have been. We can't simply turn them over.
    Mr. Conyers. Well, can we meet and find out what it is you 
are basing the response to my question?
    Mr. Mukasey. I think the question was whether I was going 
to open a criminal investigation because it has now been 
disclosed that waterboarding was part of the program.
    And what I have said is that waterboarding, because it was 
authorized to be part of the program, pursuant to approach--
that it was authorized to be part of the CIA program, cannot 
possibly be the subject of a criminal--a Justice Department 
investigation, because that would mean that the same department 
that authorized the program would now consider prosecuting 
somebody who followed that advice. That won't change whether 
letters are disclosed or not disclosed.
    Mr. Conyers. Well, what we are trying to do is make 
ourselves conversant with the basis of the response that you 
gave to my question. So there must be some way, between the 
Department of Justice and the House Committee, that we can be 
made more aware--we have requested this document before--of the 
document on which you base your response.
    Mr. Mukasey. The response about a criminal investigation 
doesn't really depend on the particular content of the 
document. It depends on there having been an opinion that 
defined and authorized the limits of a particular program that 
is now disclosed included waterboarding at that time. It is no 
longer part of the program; that has also been disclosed, but 
that doesn't change the contents of the letter.
    That said, I am sure that we can talk about possible 
additional discussion of what is in the letters between the 
department and Members of this Committee. My understanding is 
there had been ongoing discussion with Members of various 
Committees, including particularly the Intelligence Committees, 
but I was not aware--there may well very well have been 
discussions with Members of the Committee. I am not certain as 
I sit here.
    Mr. Conyers. Well, we will pretend that we have never asked 
for this before, and we will start right now.
    Thank you very much.
    We have a call for votes. The Committee will stand in 
recess until this one--four votes are dispensed with.
    [Recess.]
    Mr. Conyers. The Committee will come to order.
    And the Chair recognizes its Ranking Member, Lamar Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    General Mukasey, I would like to try to cover three 
subjects, if we could; interrogation techniques, FISA and, if 
we have time, intellectual property rights enforcement.
    In regard to interrogation techniques--and I know you are 
going to be asked a lot of questions about that today--I just 
want to express the personal opinion that I hope the 
Administration will not be defensive about using some 
admittedly harsh but nonlethal interrogation techniques, even 
techniques that might lead someone to believe they are being 
drowned even if they are not.
    My guess is that 99 percent of the American people, if 
asked whether they would endorse such interrogation techniques 
to be conducted on a known terrorist with the expectation that 
information that might be derived from such interrogation would 
save the lives of thousands of Americans, that 99 percent of 
the American people would support such interrogation 
techniques.
    And I just can't imagine that we would consider not using 
them, if they, in fact, were going to lead to the saving of 
thousands of American lives.
    Now, that is not a question, it is a statement. But I would 
welcome any comment on it that you might have.
    Mr. Mukasey. I will thank you for the comment.
    I will say, as I said to the Chairman, if there is a 
particular question you want to pose, I will be happy to answer 
it. I thought the comment may very well not answer the question 
you have in mind.
    Mr. Smith. Okay.
    Would you agree with me that 99 percent of the American 
people would probably endorse such techniques if they could be 
shown to save thousands of American lives and, again, to be 
conducted only on a known terrorist with the high expectation 
that such information could protect the American people?
    Mr. Mukasey. Regrettably, unlike the--unlike the question 
posed by the Chairman, I can't sit here and say what I think 99 
percent of people would do. I have, kind of, an instinct, but--
--
    Mr. Smith. I can, but you cannot. I understand that.
    General Mukasey, let me read a sentence from a New York 
Times editorial that appeared January 31 and ask you to respond 
to some of the assertions that were made in this particular 
editorial.
    This is the sentence; ``Mr. Mukasey also pushed Congress to 
give immunity to telecommunications companies for any illegal 
acts they committed by helping the Administration carry out----
''
    Mr. Mukasey. I am sorry, ``for any illegal acts they 
committed''?
    Mr. Smith. That is correct--``while helping the 
Administration carry out its outlaw domestic spying program.'' 
Kind of an amazing assertion.
    But the question is this: Are you pushing, have you pushed 
Congress to give immunity to telecommunications companies for 
any illegal acts they committed?
    Mr. Mukasey. No.
    Mr. Smith. Do you know of any aspect of the domestic spying 
program that is illegal as is asserted in this editorial?
    Mr. Mukasey. No, I do not.
    Mr. Smith. Okay. Thank you.
    To go on about FISA, as you know, several bills have been 
introduced to reauthorize the Foreign Intelligence Surveillance 
Act. One bill is called the Restore Act. Do you have any 
concerns about the Restore Act? And if so, what are those 
concerns?
    Mr. Mukasey. I have concerns about the Restore Act that I 
tried to cover to a certain extent in my opening statement, 
which include that it does not include immunity for telecoms 
who participated on the assurance that what they were doing was 
necessary and lawful, which poses tremendous dangers for the 
future, as I outlined.
    It does not permit us to gather intelligence in categories 
that we are permitted and should be permitted to gather.
    It has a sunset provision that would stifle the investment 
of effort both the investment by--in personnel and the 
investment in material in an ongoing program.
    For all of those reasons, we have problems with it.
    Mr. Smith. Okay. Understand. Appreciate that.
    General Mukasey, last question has to do with intellectual 
property rights enforcement.
    As you know, the department has assigned a prosecutor in 
each of the Federal judicial districts to enforce intellectual 
property rights. It looks like there has been very uneven 
enforcement: Over half of the judicial districts in the United 
States, in fact, have only brought zero or one action against 
violators or those who have violated our intellectual property 
rights.
    Is there any more that the department can do to try to 
enforce the intellectual property rights?
    Mr. Mukasey. There is always more that the department can 
do. And enforcement of intellectual property rights engages not 
only property rights themselves, but also matters relating to 
the security of the country insofar as those rights involve 
technical processes and procedures that we rely on for 
communications.
    Mr. Smith. Any reason half the districts in the United 
States would not be showing particular activity when it comes 
to prosecuting those kinds of violations?
    Mr. Mukasey. Not that I can think of offhand.
    When I was a district judge, we had all manner of 
intellectual property cases, ranging from knock-offs of popular 
products to----
    Mr. Smith. In those districts that are not active, perhaps 
you can enforce them to be more active.
    Mr. Mukasey. Perhaps we can make them aware of the need to 
be active and to go out and make cases. And I appreciate----
    Mr. Smith. Thank you, General Mukasey.
    Thank you, Mr. Chairman.
    Mr. Conyers. You are welcome.
    The Chair recognizes the Chairman of the Intellectual 
Property Subcommittee, Howard Berman of California.
    Mr. Berman. Thank you, Mr. Chairman.
    And welcome, General Mukasey.
    The Ranking Member's question to you left something 
hanging, which I just wanted to clarify. I think the answer is 
pretty clear.
    Wouldn't you say that it is true that there are ``harsh 
interrogation techniques'' that are not lethal which are still 
illegal because they fit within the definition of torture? A 
technique does not have to be lethal to be torture.
    Mr. Mukasey. I think that is fair to say, as a general 
matter, because the torture statute is phrased in general 
terms.
    Mr. Berman. And when that is so, whether 99 percent of the 
American people have an opinion about that particular technique 
is somewhat irrelevant to the issue of whether that conduct 
should be permitted.
    Mr. Mukasey. I think it is fair to say that the law doesn't 
turn on what any percentage of people think is included within 
it or not within it, it is what it includes or doesn't 
include----
    Mr. Berman. That is right.
    Mr. Mukasey [continuing]. On a reasonable reading. I am 
with you on that.
    Mr. Berman. I would like to go to another subject.
    You have stated, I believe several times, both in your 
confirmation process and since, of your desire for cooperation 
between the Justice Department and the Congress.
    My question is, does that cooperation apply to jointly 
developing mutually agreeable procedures to govern any future 
search warrants executed on congressional offices in such a way 
as to protect legitimate law enforcement needs, while also 
respecting the speech or debate clause of the Constitution and 
the separation of powers?
    Mr. Mukasey. I think I can say it emphatically includes 
that. Because I believe there are ongoing discussions to 
resolve precisely that. There is a case that was brought, as 
you know. We petitioned for cert, I believe. We would much 
prefer to resolve that case in the way that most disputes with 
respect to privilege and other matters are resolved between 
Congress and the Justice Department, namely by conversation and 
accommodation.
    And, as I understand it, that is actively under way.
    Mr. Berman. You are right, I believe and--that this is part 
of a recent meeting between the House Office of General Counsel 
and the Justice Department.
    I guess, are you saying that the Justice Department is 
actively engaged and committed to working to develop such a 
mutually agreeable process?
    Mr. Mukasey. Both of those.
    And I deeply hope that it comes out that way, rather than 
in some bright-line ruling that one of us can't live with or 
would find it awkward to live with.
    Mr. Berman. Great.
    And then, finally, if there is such an agreement, would you 
support setting forth that agreement in a memorandum of 
understanding or legislation or in some other fashion?
    Mr. Mukasey. I think precisely how that--what the terms of 
the agreement are will govern, to a certain extent, how it is 
to be set forth.
    I am, at this point, more concerned that we reach 
agreement. Once we reach agreement, I think we can figure out 
precisely how to set it forth, whether it has to be in a 
memorandum of understanding or in some other fashion.
    But I certainly favor the success of the conversations that 
I understand to be now ongoing.
    Mr. Berman. Well, thank you. I think you have covered that 
subject. And I appreciate your responses.
    Since my time isn't quite out, let me go back to the--just 
the questions of Chairman Conyers and you.
    I understand the notion of conduct done pursuant to a 
Justice Department authorization. I am curious about whether 
you think that the analysis that went behind that authorization 
was correct.
    Mr. Mukasey. If we are talking about the authorization with 
respect to waterboarding, what I undertook to review was the 
current program. The current program, as I disclosed, does not 
include waterboarding.
    Were waterboarding to be brought back into the program, 
what would have to happen is that would have to come initially 
from the Director of the Central Intelligence Agency and, I 
believe, the Director of National Intelligence to the Justice 
Department. And I would have to analyze that question not only 
pursuant to the law that existed at the time of the prior 
opinion, but also with regard to the laws that have been passed 
since, which have changed the landscape, I think it is fair to 
say, rather substantially.
    Mr. Berman. So it is sort of an internal case or 
controversy test?
    Mr. Mukasey. Sort of. Yes.
    Mr. Berman. Okay.
    Mr. Mukasey. Based on the concrete facts that would be 
presented to us at the time.
    Mr. Berman. Thank you.
    Thank you, Mr. Chairman.
    Mr. Conyers. The Chair recognizes the Chairman emeritus of 
the Committee, Jim Sensenbrenner.
    Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
    I want to get back to the issue of severe interrogation 
practices.
    And at the September 26 Democratic presidential debate, the 
moderator, Tim Russert, posed the following question: ``Imagine 
the following scenario. We get lucky. We get number three guy 
in Al Qaida. We know there is a big bomb going off in America 
in 3 days and we know this guy knows where it is. Don't we have 
the right and responsibility to beat it out of him?''
    Barack Obama responded by saying: ``There are going to be 
all sorts of hypotheticals in emergency situations, and I will 
make that judgment at the time.''
    Now, I hate to put you in a position of choosing between 
our distinguished Chairman and Senator Obama, but do you agree 
with Senator Obama that if he became President he should be 
able to make that judgment at that time, or do you disagree 
with him and think that Congress should make that decision 
right now for all time?
    Mr. Mukasey. The only thing I can say is the way in which 
techniques could be authorized.
    If ``beating it out of him'' is part of the program, then 
it could be done. I am not saying that it is or that it isn't.
    If it is not part of the program, the only way it becomes 
part of the program is if it comes from the CIA Director and 
the Director of National Intelligence, to me, to the President, 
and a ruling that it does not violate any statutes.
    Mr. Sensenbrenner. I guess what I am saying is, is 
apparently Senator Obama's answer implies that he is defending 
presidential powers against being hamstrung by an inflexible 
law passed by Congress. And, you know, that appears to be the 
thrust of Senator Obama's answer, is that he said if he became 
President he doesn't want to have handcuffs put on him.
    Mr. Mukasey. If Congress passes a statute that treats a 
particular subject that Congress can and it becomes law, then 
that is the law, and the President will be bound to obey it.
    As a practical matter, to entertain the view that the 
President could then order somebody to act outside it I think 
is not a practical view.
    Mr. Sensenbrenner. Okay.
    I also want to talk about one of the other urgent iteMs. 
And that is the retroactive reduction in the sentencing 
guidelines for crack dealers.
    Does the Justice Department have any statistics about the 
1,600 that would be immediately released, what communities they 
were dealing crack in prior to their arrest and conviction?
    Mr. Mukasey. I believe we can--although I haven't in front 
of me and I certainly haven't committed to memory the precise 
communities in which they would be located, I believe we can 
make distinctions based on their criminal histories, which 
would give some clue; based on whether any of them got a two-
point uptick in the offense level, which would indicate the 
presence of a gun; and whether any of them got--had any prior 
history of gun convictions, regardless of their criminal 
history.
    It is my understanding that if all of those factors are 
included--that is, a criminal history category of two or above, 
a possible uptick of two for the presence of the gun or a prior 
gun conviction--any of those, that that would exclude from 
consideration for retroactive application something like, I 
think, 60 or 70 percent of the 1,600.
    I believe that we have statistics to show that.
    Mr. Sensenbrenner. Yes.
    You know, my gut reaction is that, if these people are 
released from prison, it will go right back into the 
communities where they were trafficking crack, and perhaps go 
right back into business, or definitely be involved in other 
criminal activity, particularly when being in possession of a 
firearm, which, of course, is a felony in and of itself.
    Mr. Mukasey. And an additional problem is they would go 
back rapidly, without the pre-release programs that we have to 
try to reintroduce people into the community in a way that 
mitigates the possibility that they might become recidivists.
    Mr. Sensenbrenner. Thank you.
    Mr. Conyers. The Chairman of the Constitution Subcommittee, 
Jerry Nadler of New York?
    Mr. Nadler. Thank you, Mr. Chairman.
    Mr. Attorney General, I was interested to hear you say a 
moment ago that if the President ordered someone to do 
something against the clear intent of Congress, that is outside 
the law.
    The FISA act said a person is guilty of an offense if he 
intentionally, one, engages in electronic surveillance under 
the color of law, except as authorized by statute.
    Now, the President admitted that he did that. Every 45 days 
he signed an authorization to direct the surveillance of people 
in the United States without a warrant, as required by the FISA 
act.
    Now, I had previously asked your predecessor, Attorney 
General Gonzales, given this apparent prima facie case that the 
President and people under him, including the prior Attorney 
General, engaged in felonious conduct by doing so, that he 
appoint a special counsel to investigate the warrantless 
surveillance of Americans.
    And I recently reiterated that request to you.
    Now in your testimony before the Senate last week, you 
responded to Senator Leahy's questions on whether the President 
violated the law by authorizing wireless surveillance by 
stating that you ``don't know whether the President acted in 
violation of statutes,'' including FISA.
    I believe we need to know the answer: Did the President, 
with, as has been reported, the advice of the Justice 
Department, break the law?
    I believe the answer is clear that he did.
    Given the extraordinary circumstances involved, allegations 
of criminal conduct by the President and other high-ranking 
officials and the possibility of conflict at the Justice 
Department, will you now agree to appoint outside special 
counsel so that we finally will get an answer to this question?
    Mr. Mukasey. The direct answer to your question is no, I 
will not.
    Mr. Nadler. Because?
    Mr. Mukasey. Beg pardon?
    Mr. Nadler. Because?
    Mr. Mukasey. Because there is one detail that was omitted, 
and it may very well have been my fault in saying I didn't know 
when I had forgotten or overlooked.
    There was in place an order--I am sorry, an opinion of the 
Justice Department describing the legal basis for the program 
to which you refer. That included the authorization of the use 
of military force, as a congressional statute on which it was 
relied that that behavior was legal.
    I understand that there are views on both sides of that--
strong ones.
    Mr. Nadler. Well, there are views--let us put it this way: 
The Supreme Court in the Hamdan case, in a case just about 
directly on point, ruled that--for reasons I am not going to 
get into now, we don't have time in 5 minutes--that the use of 
the two excuses by the Justice Department, namely the 
President's inherent powers under Article II and the 
authorization for the use of military force as justification, 
was not, in fact, justification. The President is still bound 
by the law. The law was not repealed by implication by the AUMF 
and that that is not sufficient.
    Now, the Justice Department, in a letter to congressman--to 
congressman, excuse me--to Senator Schumer recited these 
letters as a refutation by a host of constitutional scholars 
against that.
    My second question, then, when this is--on behalf of the 
Justice Department, in effect representing the President, 
although a step removed, you say that this is justified, that 
it is not illegal, for the reasons stated.
    Lots of other people say it is clearly illegal.
    Normally, we would have that settled in a court. A court 
would decided whether something is legal or not when there is a 
dispute.
    But when you attempt to get this into court--you can't get 
it into court by prosecution, because you are not going to 
prosecute or appoint the special counsel. But when you attempt 
to get it into court by victims or alleged victims, plaintiffs 
suing in civil court, then the government comes out and says, 
``Oh, you can't get into court alleging violation of your 
rights through violation of FISA because of the state secrets 
privilege.''
    So now you have set up a situation where the President and 
the Attorney General assert the President's right to do 
something which seems to a lot of people to a lot of people to 
be a violation of law and there is no way of checking that.
    In other words, there is no way of getting--well, let me 
ask you a different question. Under this, is there any way--and 
would you agree that the state secrets privilege has to yield, 
because otherwise there is no way for Congress or the courts or 
anybody to have any check on the President's claimed power?
    Mr. Mukasey. The state secrets privilege--just to answer 
the last question first--the state secrets privilege is invoked 
by the government and backup is provided for its invocation.
    To my knowledge, that backup has been sustained----
    Mr. Nadler. Well, the state secrets privilege has often 
been used where there is no backup provided, simply an 
affidavit.
    Would you agree that where the state asserts state 
privilege--state secrets, that the court ought to be provided 
with information in order to rule on the validity of the state 
secrets privilege?
    Mr. Mukasey. The court can be provided with and is provided 
with information relating to the invocation of the state 
secrets privilege and an explanation of the basis for it, and 
to rule on that basis.
    Mr. Nadler. But the court often rules with--simply on an 
affidavit without seeing the documents to judge for itself 
whether they deserve--whether they would threaten national 
security were they revealed.
    Would you agree that the court ought to see that and make 
that decision?
    Mr. Mukasey. I believe that courts see affidavits in some 
cases, affidavits and documents in others, and have what they 
consider to be an ample basis because they rule on that basis 
for a ruling. Sometimes things are quite clear.
    Mr. Nadler. And sometimes they are not.
    Mr. Mukasey. And sometimes they are not.
    Mr. Nadler. And, lastly, we have heard hearings in this 
Committee on rendition--on so-called extraordinary rendition. 
On the Maher Arar case we are going to hold further hearings.
    Would you--and we have been told that we got assurances 
from Syria that Mr. Arar would not be tortured when he was sent 
there, which of course proved not to be true.
    Would you commit or agree that upon request, which will be 
forthcoming, that you will send someone from the department for 
a hearing here to answer the questions, ``Who obtained these 
assurances? From whom were they obtained? What assurances were 
given?'' so that we can begin to get to the bottom of this 
rather horrendous case?
    Mr. Mukasey. It is my understanding that some of this has 
been the subject of classified briefings to various Members of 
this Committee and other Committees.
    It is also my understanding--and this is based on an 
exchange of notes between us and Canada that became public, not 
because of anything that anybody wanted to do voluntarily--that 
Mr. Arar is still on the no-fly list.
    Mr. Nadler. Yes, he is; improperly so, in my opinion.
    Mr. Mukasey. Beg pardon?
    Mr. Nadler. I have seen----
    Mr. Conyers. The gentleman's time may have expired.
    Mr. Nadler. Let me just say, I have seen the confidential 
documents. He shouldn't be on the no-fly list. But we have not 
heard about the assurances from Syria, even on a classified 
basis. We need to know that.
    I thank you, Mr. Chairman.
    Mr. Conyers. Thank you.
    Howard Coble, Ranking Member, of North Carolina.
    Mr. Coble. Thank you, Mr. Chairman.
    General, good to have you on the Hill today.
    I want to associate myself with comments made by the 
distinguished Ranking Member regarding intellectual property 
crimes in which he noted that more than half of the judicial 
districts in the country have shown little or no interest in 
prosecuting these.
    General, it is my belief that these intellectual property 
crimes should hold a national priority. Do you all at the 
Justice Department share that view with me?
    Mr. Mukasey. We do, and we practice it. We approach on a 
national basis the need to protect intellectual property, which 
is the foundation of this economy and also goes directly to 
national security concerns.
    Mr. Coble. I am glad to hear that, because I concur with 
you.
    Subprime mortgage questions: It has been reported that the 
FBI is in the process of investigating 14 companies involved in 
either mortgage lending to borrowers with weak or questionable 
credit or the marketing of securities backed by those loans.
    Considering the magnitude of this crisis--and I think it is 
a crisis--and the breadth of these allegations, would any 
resulting prosecutions be a priority for the Justice 
Department?
    Mr. Mukasey. I can't comment on what the FBI may or may not 
be investigating.
    But I recognize the degree to which the subprime debacle 
has affected the economy. And therefore, if crimes are 
disclosed, they would certainly be a priority.
    Mr. Coble. Well, let me put an alternative question to you, 
General.
    Do you feel that prosecuting illegal predatory lending is 
an effective method of addressing the subprime mortgage crisis, 
as opposed to other proposals that would perhaps lend the 
bankruptcy code to, on the one hand, help consumers, but do 
little to stop the potentially illegal lending practices?
    Mr. Mukasey. I can't comment on a comparison between the 
two.
    But I know that, generally, prosecuting cases where you 
have an informed audience of other people who may be similarly 
situated to the defendant can be a very effective way of 
preventing further violations. And that is an informed 
audience.
    Mr. Coble. Retain your prosecutorial hat, and let me put 
this question to you, General.
    What are you all at Justice doing to maximize the combined 
efforts of the various Department of Justice components to 
combating our Nation's gang problems, A?
    And B, are you taking steps to combat gangs which are more 
organized than neighborhood-based gangs that generally operate 
regionally and nationally, across the country?
    Mr. Mukasey. Definitely.
    We have a facility, newly created, devoted to the gathering 
and dissemination of information about gangs, both national and 
international, gangs like M.S. 13 that cross not only state 
boundaries but national boundaries.
    We are working with the Bureau of Prisons to identify 
people within prisons--we are working not only internally but 
with people on the outside--who promote gang activity, and are 
trying to adopt a coordinated response to that kind of 
activity.
    Mr. Coble. I appreciate knowing that. I was going to 
mention M.S. 13 as well, but you beat me to it.
    You have pretty well addressed the retroactivity question 
surrounding the crack cocaine issue. And I think that has been 
thoroughly discussed.
    And, Mr. Chairman, I hope that you will note, I was going 
to yield back my time before the red light illuminates, but I 
see the Ranking Member wants me to yield to him.
    Mr. Smith. Would the gentleman from North Carolina yield?
    Mr. Coble. I will, indeed.
    Mr. Smith. Thank you very much.
    I wanted to follow up on a subject just mentioned by Mr. 
Coble.
    And, General Mukasey, this is something you touched upon a 
while ago, and it goes to the sentencing guidelines.
    I am just curious. Is there a way for the department to 
track those individuals who are released early? And will you be 
able to give a report to us as to what additional crimes those 
individuals have committed? Is that something that is possible, 
and can you get us that information?
    Mr. Mukasey. ``Impossible'' is one of those words that I 
try to avoid.
    But I have to tell you that if a large number of 
individuals are released, it is going to tax the resources of 
the probation department, which has to supervise and keep track 
of those people, which is already----
    Mr. Smith. So the information is obtainable, it is just a 
matter of time and priority?
    Mr. Mukasey. Correct, but it is going to be difficult. 
Going to be difficult. We will try to do it.
    I hope we are not placed in that position, because once 
March 3 arrives, there is no undoing that. It is not as if we 
can turn the clock back.
    In fact, one judge has already released----
    Mr. Smith. Well, I think it would be important for us to 
know and for the American people to know if, in fact, 
individuals who are released early are committing additional 
crimes.
    And there may be a way for you to do a pilot test or test a 
geographical location if you cannot do the entire number of 
individuals released early.
    Mr. Mukasey. We will try. I hope we don't have to try.
    Mr. Coble. I will reclaim.
    Mr. Smith. Thank you.
    Mr. Coble. Mr. Chairman, do I get credit for yielding 
before the red light, but for having yielded to the Ranking 
Member?
    Mr. Conyers. Only minimally.
    Mr. Coble. I appreciate that.
    Mr. Smith. I yield back.
    Mr. Conyers. Chairman Bobby Scott of the Crime Committee?
    Mr. Scott. Thank you. Thank you, Mr. Chairman.
    General Mukasey, just briefly on the issue of torture, let 
me just make sure I have got this right.
    Is it the Department of Justice's position that if 
Administration officials think that a person has important 
information, in their opinion, the torture is legal, and that 
decision is not subject to any judicial review or congressional 
restraint?
    Mr. Mukasey. No.
    Mr. Scott. Then where is the review or restraint if 
Administration officials decide to torture somebody?
    Mr. Mukasey. The torture statute applies across the board. 
There is an existing CIA program that has been found not to 
violate that statute or any other applicable statute. That is 
the only program that is now authorized.
    Mr. Scott. So if it is, in fact, torture in violation of 
the criminal code, the fact that some Administration officials 
want to do it anyway--just because they want to do it, they 
can't immunize themselves from the criminal sanctions?
    Mr. Mukasey. That is correct.
    Mr. Scott. Okay.
    On the issue of human trafficking----
    Mr. Mukasey. I should add, I can't----
    Mr. Scott. Okay, well, in the issue of human trafficking, 
the department can always prosecute any human trafficking case 
in which it can prove force, fraud or coercion. It is often 
difficult to get victims of sex trafficking to testify. And 
there is legislation that has passed the House 405-2 which is 
aimed at strengthening the department's ability to go after 
traffickers who benefit from commercial transactions.
    Can we get your support for the bill which would allow the 
prosecution, notwithstanding the fact that you--without having 
to prove force, fraud or coercion?
    Mr. Mukasey. We focus our activities on the worst of the 
worst. And we prosecute trafficking cases, we prosecute child 
cases that arise from Internet victimization, we prosecute a 
broad range of cases through a unit devoted specifically to 
that effort.
    The jurisdictional device you indicated of affecting 
interstate commerce doesn't really raise the bar measurably, 
because that is a--in my experience as a Federal judge, that is 
a fairly low bar to meet, and would have the effect of 
dispersing efforts that we need to focus on the most horrendous 
cases.
    Mr. Scott. And if in a horrendous case the victims are 
unwilling to testify as to force, fraud or coercion, then you 
would not support legislation that would make it a little bit 
easier to prosecute?
    Mr. Mukasey. I would be reluctant to support legislation 
that would have the effect of dispersing resources that are 
focused on cases that if you saw examples of them would mortify 
you.
    I spent part of the day visiting the National Center for 
Missing and Exploited Children out in Alexandria. It is a life-
changing experience. That is the kind of case that we 
prosecute. We cooperate with those people. We have law 
enforcement people on the scene there.
    Mr. Scott. The Department of Justice doesn't prosecute 
every case that is technically within its jurisdiction. You use 
discretion. And we would assume that even if we changed it you 
would still use the discretion.
    But let me go into another issues--back to the crack 
powder/cocaine disparity. What portion of the defendants who 
might benefit from the legislation--what portion of those are 
violent and what portion of those are girlfriends just caught 
up with the situation with their boyfriends and they are 
serving decades, more than bank robbers and murderers? What 
portion of them would your classify as violent criminals?
    Mr. Mukasey. I think the statistic of which I am aware, 
namely that a criminal history category of two or above, which 
indicates some problem. The presence of--a two-point uptick for 
presence of a gun, which, again, indicates a problem. A prior 
gun conviction of any kind would encompass something like 60 or 
70 percent of that first----
    Mr. Scott [continuing]. An opportunity to check that 
figure, because----
    Mr. Mukasey. I will.
    Mr. Scott [continuing]. We are given a different number.
    Let me ask you one quick question. In terms of 
discrimination, if there is a prohibition against 
discrimination for Federal contractors, are there any 
circumstances when it would be okay for a Federal contractor to 
tell someone that they should not be able to get a job solely 
because of their religion in a Federal contract?
    Mr. Mukasey. As you describe it, there shouldn't be.
    The question is whether there is legislation that addresses 
that in a way that then doesn't require a court to make a 
distinction that it isn't really equipped to make as between 
what is or isn't a religious affiliation or what is or isn't a 
religion, or to----
    Mr. Scott. Sir, we have discrimination laws on the books. 
Should it be legal for somebody to say, with Federal money, 
``You can't get a job solely because of your religion''?
    Mr. Mukasey. It should not.
    Mr. Scott. Thank you.
    Thank you, Mr. Chairman.
    Mr. Conyers. The gentleman from Ohio, Steve Chabot?
    Mr. Chabot. Thank you, Mr. Chairman.
    First of all, Mr. Attorney General, let me commend you for 
taking the time to go to the Center for Missing and Exploited 
Children. I have toured there as well, and I agree with you 
that it can be a life-altering experience. And I would 
encourage as many colleagues to go there and see the good work 
that they do and the horrors that are out there, especially on 
the Internet, for many children nowadays.
    So, thank you for doing that.
    My first question: As you probably know, there is a great 
deal of speculation that Delta Airlines may announce a merger 
with another carrier. And I have a considerable interest in 
this because in the greater Cincinnati area we have the second-
largest Delta hub in the Nation, only second to Atlanta.
    Mergers within the airline industry are treated with great 
speculation because of the impact that such a move has on 
consumers in terms of numbers of flights and airfares.
    And, in addition to the economic toll that could occur to 
the city or the community when one of these mergers occurs, 
there could be either businesses attracted to a community or 
away from it, there can be considerable loss of jobs and a 
number of things can happen.
    My question is, how will the Justice Department treat such 
intents to merge? And what factors will the Justice Department 
examine?
    For example, will the department look at such things as 
loss of--to a particular region about impact on consumers, job 
loss and those types of things, as part of the review?
    Mr. Mukasey. I have met with the Antitrust Division. And 
they examine every proposed merger that can have an anti-
competitive effect. And it is my understanding that they employ 
a full-time economist who considers a broad range of issues.
    I can't, as I sit here, regrettably, tick off each of the 
issues. I didn't take economics, and I wouldn't presume even if 
I had.
    But they consider a broad range of issues. And they 
consider the anti-competitive effect of any merger under the 
laws as they exist.
    Mr. Chabot. Thank you.
    And my other question, General: As you are well aware, the 
Nation is still trying to fully understand the events that led 
to the subprime lending crisis and respond to the fallout, 
which includes homeowners falling victim to foreclosure.
    For example, Howard Coble, our colleague here, mentioned 
this in a question that he had. I come from a little different 
angle.
    The state of Ohio ranks six in the number of homes that 
have been the subject of foreclosure, with one in every 58 
homes being foreclosed upon.
    The city of Cincinnati, the city that I happen to 
represent, witnessed an increase in the number of foreclosures 
in 2007, placing it 30th on the list around the Nation in the 
numbers of foreclosures that have occurred; the problem that we 
are dealing with.
    A primary reason for the foreclosure fallout are predatory 
lending, lax lending--those are some of the main things. And 
many of these were in place up until 2006.
    My question is what is the Department of Justice doing to 
investigate and prosecute those institutions that are directly 
utilized or endorsed the use of predatory practices?
    And I know that many state prosecutors are under way, 
including in Ohio. What can the Justice Department do to 
support these state efforts?
    Mr. Mukasey. I think what we need to do and I think what is 
being done is a gathering of facts and then a measuring of 
those facts against existing Federal legislation to see whether 
there are prosecutions that need to be brought.
    If the conclusion is drawn that there is something that 
prevents that, then, obviously, we need to consult with 
Congress to get legislation on the books. But the first thing 
we need to do is gather facts.
    Now, I heard in one of the other questions that there are 
reports that the FBI is doing that.
    Mr. Chabot. Thank you.
    And, finally, before my time runs out, I believe that in 
response to the second part of Mr. Coble's question that you 
stated that you don't have an opinion, either pro or con, 
relative to the efficacy of allowing bankruptcy courts to 
modify the mortgages of those who are in foreclosure due to 
various predatory practices. Is that correct?
    Mr. Mukasey. It is not a question of my not having an 
opinion. It is a question of whether it is appropriate for the 
Attorney General to sit and start expressing opinions on policy 
questions rather than sticking to what he has sworn to do, 
which is to enforce and obey the law.
    Mr. Chabot. Thank you.
    Mr. Mukasey. So I am just trying to take myself out of it 
on that basis.
    Mr. Chabot. Okay. Thank you.
    We encourage you to stay out of it, too. [Laughter.]
    Mr. Conyers. Members of the Committee, we will now take a 
10-minute recess at the request of the Attorney General and 
return immediately after the 10 minutes.
    Thank you very much for your cooperation.
    [Recess.]
    [Off Mic.]
    Mr. Mukasey [continuing]. We had what I think could be 
called--what I think the diplomats called a frank exchange of 
views with the Office of Management and Budget that resulted in 
the budget that we have.
    That said, what we are trying to do is to focus our efforts 
and our glance in a coherent way so that we fight the problems 
that we have to fight on an across-the-board basis without 
particularly focusing on this program or that program.
    Mr. Watt. Well, even if you did that, though, Mr. Attorney 
General, if my math is right, $400 million into $1.7 billion is 
about three or four times. You can't reorganize programs enough 
to make up $1.3 billion, can you?
    Mr. Mukasey. We can't create money out of the air, 
obviously not. What we can do, though, for example, with 
respect to gangs insofar as that might impact on the COPS 
program, we have a center that is going to disseminate 
information, with respect to gangs, to localities where the 
gangs are functioning.
    Mr. Watt. Yes, I understand that you are going to try to be 
more efficient. I am just--unless you are telling me that there 
is $1.3 billion worth of inefficiency in the Department of 
Justice at this point, I don't know how you make up a $1.3 
billion differential, what you are doing now for $1.7 billion 
you are going to do for $400 million.
    Mr. Mukasey. I think we are going to do our best, and we 
are going to do what appears to make sense, which is to focus 
our efforts in an across-the-board way rather than focusing on 
whether this grant program or that grant program is in 
existence. I think we can function effectively.
    Mr. Watt. On $404 million, the Department of Justice can 
function effectively?
    Mr. Mukasey. We can make good use of any funds that we 
get--no doubt about that.
    Mr. Watt. All right. I am just--I know it is touchy to be 
out of step with the President, even if he is not going to be 
here when his budget he proposed goes into effect, so I am--I 
mean, I understand what you are saying, but that seems to me to 
be a pretty draconian cut that is being proposed.
    And I appreciate your walking the line on---- [Laughter.]
    Mr. Conyers. The gentleman's time has expired.
    Mr. Watt [continuing]. And I understand you can't criticize 
the President publicly on this, so that is fine.
    Mr. Conyers. The Chair recognizes its only ex-attorney 
general, Dan Lungren.
    Mr. Lungren. Thank you very much, my only Chairman of the 
Judiciary Committee at the present time.
    Mr. Attorney General, welcome to the world of politics. 
This is the only place where, when the President introduces a 
$3.1 or $3.2 trillion budget, the largest in the history of the 
world, the only thing you hear about is why he didn't spend 
more.
    I just came back from my district, had a couple of town 
halls, and people were talking about excessive spending.
    And I would use, as an example, the COPS program, where it 
was sold by the Clinton administration as seed money that would 
last for 5 years, that you would use the money and we would pay 
100 percent the first year, 75 percent the second year, 50 
percent the third year, 25 percent the fourth year. And in the 
fifth year, local and state governments would be on their own.
    But now we are told, if we don't extend the program, you, 
Mr. Attorney General, working for the President, are bleeding 
local government from their justified money. So, again, welcome 
to the world of politics.
    Let me thank you for your decision, in rejecting calls to 
appoint a special prosecutor on the destruction of CIA 
interrogation tapes case, not that you aren't looking at it but 
that you believe that the department has the integrity to go 
through that investigation by appointing a trusted assistant 
U.S. attorney.
    I am one of those who fears that we have depreciated the 
value of the Justice Department, over the years, by immediately 
moving toward special prosecutors, presuming that the Justice 
Department can't do the job.
    And so, I thank you for doing a professional job in your 
decision-making on that.
    Mr. Attorney General, I would like to ask you something in 
the area of FISA, because some questions were posed to you.
    Do you agree or disagree with the statement of your 
predecessor, Mr. Griffin Bell, in 1978, when, in appearing 
before the United States Senate in support of the creation of 
the FISA act, on behalf of the Clinton administration--excuse 
me, the Carter administration--he said that nothing in that act 
could intrude on the President's inherent policy under 
commander-in-chief powers to conduct foreign intelligence?
    Mr. Mukasey. I think I have already said, in fact I think I 
said in my--in the hearings on my confirmation, I pointed out 
that statement.
    But we are now in a world in which we are functioning under 
a statute that we think works and that we want to have made 
permanent and put in place long term. And that is where we are, 
and that is where we want to be.
    Mr. Lungren. But can the Congress inhibit the President by 
statute where he has inherent constitutional power?
    Mr. Mukasey. Again, I have said that there can't be any 
inhibition on inherent powers, any more than the inherent 
powers of Congress could be inhibited. But we are, with regard 
to surveillance, in a place where we want to be, that is, with 
everybody rowing in the same direction. And that is where we 
want to stay.
    Mr. Lungren. With respect to the issue of waterboarding, I 
believe someone already talked to you about the statement of 
Senator Obama about emergency situations and how, if he were 
President, he would have to make a judgment at the time. That 
was in response to a question by Tim Russert about whether we 
could responsibly beat information out of somebody.
    Senator Schumer talked about a hypothetical where thousands 
of Americans' lives are at threat. And he said, ``My guess is 
most Americans, most senators, maybe all, would say, do what 
you have to do,'' so it is easy to sit back in the armchair and 
say torture could never have been used, but when you are in the 
foxhole, it is a very different deal. And I respect--I think we 
all respect--the fact the President is in the foxhole every 
day.''
    And then, Professor Alan Dershowitz said that we need to 
ask questions, such as would you authorize the use of 
waterboarding or other nonlethal forms of torture if you 
believed it was the only possible way in saving the lives of 
hundreds of Americans in danger.
    I ask you this because The New York Times described the 
Department of Justice's memorandum on the legality of certain 
interrogation techniques as simply--this is their description, 
``preserving the broadest possible legal latitude for harsh 
tactics.''
    Do you agree that it is appropriate--it would be 
appropriate for the Department of Justice, in looking at the 
legality of those things, ``preserve the broadest possible 
legal latitude for harsh tactics?''
    Mr. Mukasey. It is very tempting for me to answer a 
hypothetical question that appears to be favorable to a view, 
as it is for me to be tempted to avoid answering a question 
that appears to be unfavorable to a view.
    That is why I don't answer hypothetical questions.
    I think what we try to do is to preserve whatever options 
we can, under the law, and to permit only what is authorized by 
the law. That is what we do. And I think it is appropriate for 
us to continue to do that.
    Mr. Lungren. And you pledge to continue to do that?
    Mr. Mukasey. I beg your pardon?
    Mr. Lungren. And you pledge to continue to do that?
    Mr. Mukasey. I do.
    Mr. Lungren. Thank you.
    Mr. Conyers. The Chair recognizes the distinguished 
gentlelady from Texas, Sheila Jackson Lee.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman. And 
thank you, Attorney General. It is a pleasure to have you 
before us.
    And very quickly, I just want to acknowledge and hope that 
you will review the President's budget. Usually, it is a 
concession by the department. But the zeroing out or the 
seeming elimination of the COPS program is completely adverse 
to, I think, the majority of the Members of this Committee.
    So I raise that for your consideration. It is not my 
question, right now. If you want to give it in the answers that 
I may ask, I welcome that.
    I am concerned about the Civil Rights Division. And I have 
consistently raised the question, at just about every hearing 
we have had with an Attorney General, and I again raise it.
    And it suggests, the very top--and it may be very far away, 
Mr. Attorney General, but I would just say to you Federal civil 
rights investigations 1996 to 2006--and you can see a decided 
decline down to 2006.
    And so I have asked the previous Attorney General to give 
an explanation for that. We did get what we call in Congress 
``boiler plate'' response from the Justice Department--and let 
me say on the record that it is totally unacceptable.
    I would like for you to go back and to provide me with the 
numbers of assistant attorneys general for civil rights, their 
experience and the cases that they have been able to prosecute 
in the last year--which is 2007, because that goes through to 
2008. And I will just quickly go past to my questions.
    This, I think, is appalling, and it evidences the collapse 
of the Federal Government's intervention in egregious actions 
around America.
    In the envelope that I was able to give to you--and I thank 
you--they are letters to the former Attorney General. And they 
look at issues such as Harris County jail, where 109 deaths in 
custody occurred over the last 10 years. We have been asking 
for a Federal investigation on the Harris County jail.
    The Texas Youth Commission has been charged with incidences 
of sexual abuse against young people.
    And then we have a circumstance of our district attorney 
who has been found with a number of e-mails that really suggest 
that he has a different view of African-Americans. This is a 
picture, allegedly, of an African-American with broken 
watermelon around him. It depicts a Black man lying on a 
sidewalk surrounded by half-eaten pieces of watermelon and ab 
empty fried chicken bucket, and it is entitled, ``A Black man 
OD-ing.''
    We think that these are issues that warrant a larger hand 
of investigation, and it means the Federal Government.
    So my question to you is--and I am very glad to work with 
our Chairman, because I am looking forward to a meeting, a 
briefing, a hearing in Houston on this array of abuses.
    By may I ask the question about the federal--your view of 
the view of the Federal civil rights division--and if your 
answer could be pointed--but in terms of looking at these 
questions that are raised by Members of Congress as it relates 
to civil rights of individuals being prosecuted across America?
    Mr. Mukasey. The response of the Civil Rights Division is 
not simply to questions that are raised by Congress. It is to 
civil rights problems across the board.
    And I have met with the current nominee to be the Assistant 
Attorney General for the Civil Rights Division. I have met with 
each of her unit chiefs. And what I have tried to stress--and 
this is not by way of preaching, but by way of conversation 
and, I hope, example--that that Division represents--hate to 
say more than others, but it probably is true, more than 
others--the essence of what the Civil Rights Division's mission 
is supposed to be.
    Ms. Jackson Lee. Well, would you join me in encouraging her 
to look into these series of what I perceive to be violations 
or egregious incidences, in particular, in Texas?
    Mr. Mukasey. I will certainly call them to her attention. I 
will encourage her to find out whether we have got jurisdiction 
to do anything with regard to any of those. And I encourage any 
Member of this Committee who finds any evidence of a civil 
rights violation to call it to our attention.
    But I want to stress that that Division doesn't simply 
respond to congressional requests, not that that is 
unimportant. It is important.
    Ms. Jackson Lee. I understand.
    Mr. Mukasey. But their mission is much more proactive----
    Ms. Jackson Lee. I understand.
    Mr. Mukasey [continuing]. And they understand----
    Ms. Jackson Lee. Let me reclaim my time--because I have two 
quick questions. One, on the Jena 6 prosecution, as well--was 
an issue where the department was missing in action.
    I want an explanation as to why we did not prosecute or 
look into the individual prosecutor, but prosecute the 
perpetrator of the noose originally. This is not during the 
march.
    My last point is on FISA, and to give an explanation as to 
why the Administration would not accept an amendment that would 
prevent reverse targeting without securing a warrant when you 
are trying to get someone who is placed here in the United 
States.
    You are looking after someone on foreign soil, but you wind 
up getting someone on the United States, and you are doing it 
without a warrant.
    Mr. Mukasey. The short answer to the last question is there 
is already a law in force preventing reverse targeting. The 
language that has been proposed suggests an ambiguity in the 
standard that would bar us from getting the incoming call from 
somebody abroad, who we can target, to the United States. And 
that is the call we want to listen to.
    But so far as the claim that the department, that the Civil 
Rights Division, was missing in action in Jena 6, I most 
respectfully disagree. We had people there from the Office of 
Community Relations right away. They are on the ground. They 
are still looking into that.
    We had people from the Educational Opportunities Section 
looking at the compliance by that school, the school where that 
incident occurred, with an existing desegregation order. And we 
are still looking at that incident.
    And as you know, we have prosecuted what regrettably has 
come to be known as a noose violation that occurred when people 
coming back from the demonstration gathered at an interstate 
facility, and were greeted by the horrible sight of somebody 
driving around in a truck with nooses hanging off the back. One 
of those people has been indicted.
    Ms. Jackson Lee. Well, that was after the fact. I hope you 
can give me a report of what you did leading up to the tragedy 
of those six young men being arrested unfairly and prosecuted 
and their lives taken away because they were prosecuted as 
adults--felon adults, and nothing happened to the young men who 
hung the noose originally at that school.
    That has to be a civil rights violation that your U.S. 
attorney failed to prosecute.
    And I disagree with you on FISA, but let us hope we can 
work together on that, because I think we need to protect the 
civil liberties of all Americans.
    I thank the Chairman. I yield back.
    Mr. Conyers. The Chair recognizes Randy Forbes of Virginia.
    Mr. Forbes. Mr. Chairman, it is Mr. Cannon who is next. He 
was here before me.
    Mr. Conyers. Oh, I am sorry. I didn't see Chris Cannon of 
Utah entered the hearing room and is recognized.
    Mr. Cannon. Thank you, Mr. Chairman.
    Mr. Forbes is infinitely more important and articulate than 
I and I would gladly defer to him, but I do have a statement 
and a couple of questions for General Mukasey.
    In the first place, thank you for being here. We appreciate 
the calm that you have brought to the department.
    As the Ranking Member of the Committee on Commercial and 
Administrative Law, which does not sound relevant, except that 
it has oversight of the U.S. attorneys and having had, it seems 
to me dozens and dozens but was probably less than two dozen 
hearings on the topic, we are glad you are there and directing 
the department with a firm hand.
    Let me ask a question about the D.C. gun ban. The position 
taken by the Attorney General has raised some concern. And I 
understand that his position is that he wants to protect the 
department's ability to prosecute and enforce Federal fire arm 
laws.
    But, notwithstanding those laws, do you agree with the 
argument that the Second Amendment is an individual right? And 
does the Administration agree with you as well?
    I think--obviously, as you know, the case is up for 
decision by the Supreme Court, so I am kind of limited in what 
I can say. The department's position, as outlined in its brief, 
is that--at least I believe, that the Second Amendment is a 
personal right. And I understand that to be the 
Administration's position.
    Thank you. I appreciate that very much.
    I think it is a personal right. I don't think the 
Constitution--the words make any sense unless you read it that 
way, and especially if you look at the history and the failed 
attempts by some folks to try and rewrite that history, 
fabricating facts.
    So it appears to me that we are on a course to clarify what 
has seemed to me to always be a straight-forward issue with an 
attempt to muddle and use Federal law to obfuscate a basic and 
fundamental right that I think is foundational to America's 
freedoms.
    During much of last year, we have heard the argument that 
the Department of Justice was broken and a new AG was needed. 
We have a new AG, Attorney General, but it is my understanding 
that there are 10 main Justice positions for which nominees 
have been sent to the Senate, but none have been confirmed.
    And those include deputy attorney general and associate 
attorney general positions.
    It appears that you are the quarterback but without a front 
line. I am wondering if you can talk about the problems you and 
the American public faces as a result of Senate inaction on 
these qualified nominees. Do you need some help?
    Mr. Mukasey. We need to get confirmed nominees in the 
positions for which they have been nominated.
    That said, I must say that the people who are functioning 
in acting capacities are functioning well and valiantly. But 
that is not to say that we don't need--what we need is 
stability and a sense of stability that is conveyed by having a 
confirmed nominee there. That is what we need.
    Mr. Cannon. Thank you. I agree entirely with that. We have 
wonderful career bureaucrats in the Justice Department, people 
who are committed to the ideas and the continuity of what the 
Justice Department does, whether or not you have a Republican 
administration or a Democratic administration.
    But it just seems to me that they are programmed to work in 
a situation that includes political appointees, and the Senate 
has a responsibility to confirm those appointee who are--if 
they are qualified, and I don't think there has been any 
question about their qualifications, just delay and more delay 
on the part of the Senate.
    Of course, there is a lot of delay on other issues as well. 
But this one is vital, it seems to me, and they need to come 
forward.
    The matter of the CIA's destruction of video tapes of 
interrogations of terror suspects has received a great deal of 
attention recently. I understand that there is an ongoing 
investigation of the matter and that you may not be able to say 
much about it today.
    Can you discuss your decision on the appointment of veteran 
Federal prosecutor Mr. John Durham and why you chose not to 
appoint a special counsel?
    Mr. Mukasey. I can't get into confidential discussions and 
executive matters. I can say that we looked initially to the 
U.S. Attorney's Office in the district where the CIA is 
located. That U.S. Attorney's Office, by mutual agreement, 
recused itself, and we appointed John Durham to be the acting 
United States attorney for the purpose of--to be--the United 
States attorney for the purpose of this case and to investigate 
this case.
    The fact that one office recused itself does not in any way 
disqualify the department from conducting the investigation and 
to say that because this is a case that has gotten a great deal 
of attention necessarily means that we have to go outside the 
department and appoint a special prosecutor and so forth sends 
the wrong message in two respects.
    One is, it undermines confidence in the department to deal 
with cases involving public officers. We have a whole public 
integrity section that deals with cases of that sort, would 
send that message to the public at large, and it would also 
tell the department, you can't be relied on to investigate a 
case that has widespread public interest.
    Neither of those messages is warranted.
    Mr. Cannon. I think I agree entirely with both of those 
points. And recognizing my time is expired, Mr. Chairman, I 
yield back.
    Mr. Conyers. The Chair recognizes the distinguished lady 
from Los Angeles, CA, Member of this Committee, Maxine Waters.
    Ms. Waters. Thank you very much, Mr. Chairman. I would like 
to thank the Attorney General for being here today, and to just 
say that I and others believe that the department is absolutely 
broken and lacks credibility, and that the past Attorney 
General resigned in shame and dishonor.
    And so I am very concerned about one of your statements. On 
page 24 of your written statement, under a headline called 
``Protecting Communities from Violent Drug Offenders,'' you 
state that nearly 1,600 convicted crack dealers will be 
eligible for immediate release--and you emphasized the word 
``immediate''--if Congress doesn't act.
    You also stated, ``Retroactive application of these new 
lower guidelines will pose significant public safety risks.''
    Such a statement appears to me to be a distortion of the 
Sentencing Commission's decision, because it completely ignores 
the process that must be followed before anyone is released.
    Mr. Attorney General, isn't it true that the Sentencing 
Commission's decision does not provide an automatic release?
    Mr. Mukasey. It provides for an automatic downtick in the 
guideline range, and for sentencing.
    We have to understand, though, the context in which that 
would arise. It arises in a case that, almost by definition, 
occurs some substantial time before it comes back to the court. 
It necessitates the court going back through the record.
    It, in many cases, involves having the United States 
attorney who--if you are lucky, he is still there.
    If he remembers the case or not, is something else, again. 
And it has to come up then for resentencing.
    They are eligible for automatic release, that much is true. 
They also get the benefit, as others in prison do not get the 
benefit, of the new--relatively new regime under Booker in 
which the guidelines themselves are optional. So we have 
selected out for better treatment that group of defendants who 
then get resentenced under the optional guidelines under 
Booker.
    Ms. Waters. Well, what you just described was the process. 
And you described in that process several ways by which one may 
be eligible or may be released.
    Your statement on page 24 does not in any way capture that 
there is a process. It talks about immediate release. And I 
think for this department to have credibility again--if it is 
ever going to gain credibility, that the statements that come 
out of the mouth of the Attorney General should be ones that we 
can rely on.
    And I bring that to your attention because it is important 
to always describe that there is a process that--nobody is 
taking the key, unlocking the jails and say, ``Everybody is 
out.'' That does not happen.
    Let me just move on with another concern that I have about 
predatory and subprime lending and race. What we have 
discovered is that minority communities have been targeted and 
fraud has taken place. And it is not simply a subprime lending. 
It is a combination of targeted communities for subprime 
lending and fraud, and that people of color, African-Americans 
in particular, have been harmed by this practice.
    What have you done, what has the department done to 
investigate these cases?
    Mr. Mukasey. Facts are being gathered to determine whether 
there is Federal jurisdiction to prosecute cases of the sort 
you described. I should point out that we have prosecuted and 
are prosecuting cases involving discriminatory denials of 
credit. We have been doing that straight along, and we have 
done it in a number of----
    Ms. Waters. I am interested in the crisis that we are in 
now. I was in Ohio, for example, where whole blocks were 
boarded up in an African-American community. And also we are 
finding that in California, where San Bernardino-Riverside area 
ranks number 5 in foreclosures in the country, that they, too, 
are minority communities.
    I am wondering if specifically you have done anything to 
look at that kind of targeting and the race questions.
    Mr. Mukasey. We are gathering facts to determine whether we 
have jurisdiction to prosecute any of those as criminal 
violations. If we don't, obviously, there is going to have to 
be legislation from this Congress.
    Ms. Waters. Would you be wiling to come forth with 
suggested legislation if you find you do not have a 
jurisdiction?
    Mr. Mukasey. If we can come up with legislation, we hope to 
work with Congress to get it--if it is necessary.
    Ms. Waters. How long do you think it will take you?
    Mr. Mukasey. I cannot, as I sit here, give you a deadline, 
I am sorry.
    Ms. Waters. But it is one of your priorities?
    Mr. Mukasey. It certainly is one of my priorities.
    Ms. Waters. I would certainly hope so, Mr. Attorney 
General.
    Let me point you to the Gulf Coast. After Hurricane 
Katrina, during field hearings of the Financial Services 
Housing Subcommittee in Mississippi and Louisiana, a number of 
witnesses complained about local actions to keep African-
American renters out of their communities--Saint Bernard 
Parish, for example--and local resistance to the development of 
affordable housing that appears to be based on racial makeup of 
the prospective tenants, as much as it is to objections to 
affordable housing.
    These actions and resistance are having a serious adverse 
impact on the ability of hurricane-ravaged communities to 
provide and rebuild the affordable housing stock in their 
communities and contributing to the ongoing housing crisis for 
poor minority people.
    At least one private Fair Housing Act lawsuit against St. 
Bernard Parish has been brought.
    Has the Civil Rights Division initiated any such lawsuit? 
Is the Civil Rights Division investigating any allegations that 
such resistance to affordable housing projects violates the 
Fair Housing Act?
    Mr. Conyers. The gentlelady's time has expired but----
    Ms. Waters. Could I get an answer, Mr. Chairman----
    Mr. Mukasey. The short answer is, I don't know the 
particular circumstances you have described, but I am more than 
willing to get back to you in a question--in written form, 
because I think the question deserves--certainly deserves an 
answer.
    Ms. Waters. And while you are doing that, would you also 
check out the race-based advertising on the Internet as it 
relates to housing in that area?
    Mr. Mukasey. I will check out whatever--what you have asked 
about.
    Ms. Waters. I am asking about that, too.
    Mr. Mukasey. Okay.
    Ms. Waters. Thank you.
    Mr. Conyers. The Chair recognizes Randy Forbes of Virginia, 
the former Ranking Member of the Crime Subcommittee.
    Mr. Forbes. Thank you, Mr. Chairman.
    And, Mr. Attorney General, thank you for being here.
    To say the department is not now, nor has it ever been in 
its history perfect, nor will it ever be perfect, seems obvious 
to anyone who has ever been involved in government, but to 
suggest that means the department is broken is certainly a 
misnomer and a stretch.
    And I am just like to switch to a little different topic 
now. We have had former Attorney Generals that have testified, 
and we have had a number of other people in various departments 
about a different issue, one that the Chairman of the 
Subcommittee on Crime and Terrorism and Homeland Security was 
courteous enough to have a hearing on recently, and that is 
espionage.
    And the question I would ask for you today, do you agree 
with the testimony that we have had that China is currently the 
number one espionage threat to the United States?
    Mr. Mukasey. I am really not at liberty to talk about 
matters that are classified. And part of the problem is that 
the information that I have about that comes in part based on 
classified information to which I have access. And I am very 
reluctant to get into that.
    Mr. Forbes. Is there any part of that, since we have had 
much of that it has been testified to, some by your department, 
that was not in a classified setting, is there any part of that 
espionage that you can testify about today?
    Mr. Mukasey. Not that I am aware of as I sit here, and I 
don't want to make any mistake in the wrong direction.
    Mr. Forbes. Okay.
    Mr. Chairman, then I don't have any other questions.
    Mr. Conyers. The Chair is pleased now to recognize the 
Chairperson of the Immigration Subcommittee, Zoe Lofgren of 
California.
    Ms. Lofgren. Thank you, Mr. Chairman.
    And thank you, Mr. Attorney General, for being here with us 
today.
    One of the things I am interested in is the efforts you are 
making to adjust or to recoup for some of the problems that we 
discovered in the Department of Justice.
    For example, last year, the Department of Justice's former 
principal deputy director of public affairs, Monica Goodling, 
appeared here and testified that she applied a political litmus 
test to determine who would hold certain positions in the 
Department of Justice.
    And, if I recall correctly, she said she stepped over the 
line. What she actually meant was that she violated the law by 
providing a political litmus test in the appointment of 
immigration judges who are civil servant appointees and not 
political appointees.
    And I am wondering what concrete steps you are taking, both 
about future hiring decisions when it comes to immigration 
judges and how to deal with the politicization of what should 
have been civil service appointments, in your new post?
    Mr. Mukasey. Well, as you know, some of that is still under 
investigation by----
    Ms. Lofgren. I am just telling you what she told us, here, 
under oath.
    Mr. Mukasey [continuing]. The Office of the Inspector 
General and the Office of Professional Responsibility.
    However, I have, myself, signed appointments of immigration 
judges. And I think I have made it clear that any political 
consideration, in that regard, is not to be made.
    And I have said that on more than one occasion. And I have 
not seen, in those appointments--and believe that I will not 
see in any future appointments--any evidence of anything of 
that kind.
    Those are merit appointments, and those should be merit 
appointments. Those will continue to be merit appointments.
    Ms. Lofgren. Well, just to follow up on the general topic, 
Chairman Conyers and I sent you a letter in January--and I am 
not complaining that you haven't answered yet, because it was 
just a few days ago--but, talking about a Board of Immigration 
Appeals decision that radically reverses a longstanding policy 
of our government about asylum for victims of female genital 
mutilation.
    And I am concerned--I don't want to say that there is a 
political issue. But this has been well-settled law for a very 
long time. We give the citations.
    And I am just hoping that you can take a look at, not only 
that letter and the citations, but make sure that there is no 
political overtones to such a radical departure from well-
settled law.
    Mr. Mukasey. I mean, I can't imagine how there would be a 
political overtone, but I am going to look at the letter and 
the underlying opinion.
    Ms. Lofgren. I meant to follow up on another subject, and I 
know there has been a lot of discussion about this. But on the 
FISA bill that we are working on, obviously, we are working in 
good faith to get the best bill that we can, that gives the 
government the tools it needs but also respects the 
Constitution.
    And I am hopeful that we will--if the Senate can move--that 
we will have a good bill that we will be able to send to the 
President for his signature.
    It seems to me, earlier today, you testified that the 
telecommunications companies had not violated the law.
    And I just--I am a little stunned, actually, to think that, 
if we gave you a bill that had all of the tools that you 
wanted, that allowed you, the Administration, that you would 
recommend that it be vetoed simply because of a monetary damage 
issue for--or the potential exposure of liability to these 
private companies.
    Is that really your position?
    Mr. Mukasey. No. And I am glad you raised it in that form. 
It is not simply a monetary issue. It is a signal to them, 
essentially, that, if you are asked, in good faith--you respond 
in good faith to a request to cooperate with the government; 
you are assured that your activity is lawful; and you then 
cooperate, that you do so at your own risk.
    Because that is a statement not simply to the telecoms but 
it is a statement to every business, every CEO in the country.
    Ms. Lofgren. Well, but CEOs also have an obligation to 
independently adhere to the requirements of the law.
    I will give you an extreme example. If you went to me and 
said, ``Here is a gun; shoot Adam Schiff,'' I couldn't say that 
that is----
    Mr. Schiff. Can you use a different example?
    Ms. Lofgren. A different example? [Laughter.]
    I couldn't say that is okay, because you told me to do it.
    Mr. Mukasey. That is correct. But to say that you should 
not shoot Representative Schiff, because I asked you to do it--
understanding that I would not do that----
    Mr. Schiff. Mr. Chairman, can we change the hypothetical?
    Ms. Lofgren. Yes. [Laughter.]
    I will change the hypothetical----
    Mr. Schiff. Thank you.
    Ms. Lofgren [continuing]. With discharging a fire alarm to 
hit that pitcher of water, in violation of the law.
    Mr. Mukasey. That is all light years away--light years away 
from what we are talking about here. We are asking, and 
suggesting to companies, essentially, that they cooperate, at 
their peril, and that the only rational thing for them to do is 
to get a court order, to resist cooperation, and essentially to 
lengthen the process and prevent us from getting their 
cooperation.
    And that is a signal that is being sent, not simply to 
telecoms, but to business across the----
    Ms. Lofgren. I very much disagree, Mr. Attorney General.
    Mr. Mukasey [continuing]. Cooperate with law enforcement, 
and they do cooperate with law enforcement.
    Ms. Lofgren. I know my time is expired, but I will just say 
that no court is going to assign liability unless there is a 
pretty clear and bright line to accompany.
    I just don't see how, number one, retroactively, if they 
have done nothing wrong, what the problem is. Ordinarily, we do 
not enact laws to prevent ongoing cases from being heard and, 
prospectively, you know, if we were to sit down, I am sure we 
could coming up with something reasonable, but we have just 
gotten, kind of, a stonewall from----
    Mr. Mukasey. This is an issue of ongoing litigation, 
disclosing details of their participation, disclosing who 
participated and who didn't, exposing them to not only a hit in 
the stock price, but sabotage and other acts, simply, we think, 
is unacceptable, and would result from a continuation of the 
litigation.
    That is why we are opposed to it, in addition to the push-
back that we are going to get, and that has already started.
    Ms. Lofgren. My time has expired. Mr. Chairman, I 
appreciate your indulgence.
    Mr. Conyers. Steve King is the Ranking Member on 
immigration, from Iowa. We recognize him at this time.
    Mr. King. Thank you, Mr. Chairman. And, Attorney General 
Mukasey, I want to thank you for your testimony here today. It 
is, I think, a very capable testimony that demonstrates a clear 
understanding of duties in the law.
    And I recognize that you haven't had a lot of time to get 
acclimated to this particular task.
    But I do have a number of things I would like to discuss 
with you. And one of them would be, I believe, something that 
needs to be explored a little more thoroughly.
    And that is the issue of the liability with regard to FISA, 
and companies that are in a position to provide information 
that can help our national security, protect American lives and 
American national security.
    And we have had some significant discussions, in this 
chamber, about the liability and how one might address that. 
But I don't know that we have had discussion about the 
intimidation effect.
    And I am just going to speculate that not only 
telecommunications companies and other communication companies 
that have a lot of data out there that can be stored and 
sorted, that one can find indicators in, to be able to target 
Al Qaida and other enemies of the United States--not only those 
companies but other companies across the spectrum of services.
    It might be cell phone companies, for example. And the idea 
that because there is not liability protection, then can--I am 
going to presume--and I am going to ask you how this might 
affect our national security--I am going to presume that these 
are--there are companies now that are gathering their legal 
brains together and meeting together in their trade 
associations to determine how they are going to protect 
themselves from this impeding liability.
    And do you believe that that could affect our national 
security?
    Mr. Mukasey. I certainly do. And, again, here in part I am 
going on the basis of my experience as a private lawyer, and 
that is that companies want to protect themselves from 
liability. And it may very well be that the best way to protect 
yourself from liability is not to have the information in the 
first place.
    It may very well be that the best way to protect yourself 
from liability is to resist, to say, ``Under ordinary 
circumstances I would love to cooperate, but in the current 
atmosphere I can't be certain that my cooperation isn't going 
to be the subject of a lawsuit, so I need a court order.''
    And all of that adds burdens, and sometimes--obviously, if 
information is destroyed, will deprive us of the opportunity to 
get the information, to get the cooperation.
    Mr. King. Even though we have had some discussions about 
the destruction of some tapes that had to do with some 
interrogations, we may well be, as we sit here, be having 
information that is being destroyed by private companies so 
that they don't have to consider whether or not to provide 
information if it is requested because of the liability that is 
potential.
    Mr. Mukasey. An important consideration.
    Mr. King. Thank you.
    Moving on to another subject, on the Voting Rights Act, in 
the investigations that have gone on in some of the covered 
districts, the judgment that might come from the Department of 
Justice on whether to initiate an investigation, what might 
that be based upon?
    Mr. Mukasey. I can't, as I sit here--I mean, I have 
expressed a reluctance on many subjects about answering 
hypotheticals. But the fact is that we have litigated and 
defended the renewal of the Voting Rights Act, the 
constitutionality of that, and we are going to continue to do 
that.
    And, obviously, we are looking at patterns and practices, 
if there are such, of race-based denial of the right to vote, 
and so on, that would result in instituting----
    Mr. King. Would you agree also that it would be based upon 
an objective analysis of existing law and the Constitution?
    Mr. Mukasey. Absolutely.
    Mr. King. And if there are any issues aside from that, say 
if a local jurisdiction had passed some immigration enforcement 
law, it would have no bearing upon the consideration of the 
department? Immigration enforcement law?
    Mr. Mukasey. As I sit here now, I can't think of the 
connection between the passage of an immigration enforcement 
law and a voting rights offense.
    That said, if somebody showed such a connection, then that 
is something that somebody would have to look at.
    Again, I am reluctant to deal with hypotheticals.
    Mr. King. Thank you.
    And I want to just quickly switch to hate crimes. And we 
had witnesses, here at this same table that you are seated at, 
with regard to the Jena 6. And U.S. Attorney Washington 
testified, seated at that table, that he didn't believe that 
hanging a noose on--that he believed that hanging a noose in a 
tree, in Jena, was a hate crime. So did every witness on the 
panel agree that it was a hate crime.
    And yet the follow-up question was that, did that they 
believe that the assault on the young White gentleman--and 
particularly the name in the press is Mykal Bell, as one of the 
perpetrators, who has since confessed.
    The testimony from the U.S. attorney was that he didn't 
believe that the assault on that young fellow by six African-
Americans was a hate crime.
    And I am having trouble reconciling that. And I wonder if 
you might be able to do that.
    Mr. Mukasey. Jena is a matter that is still under 
examination. I am reluctant to comment on matters that are 
under examination.
    We do hate crimes. We prosecute hate crimes, the one as 
well as the other.
    Mr. King. I hope that is the case. I trust it is. And I 
appreciate your response, Attorney General.
    And I thank the Chairman. I yield back.
    Mr. Conyers. Thank you.
    The Chair is pleased to recognize Robert Wexler, the 
gentleman from Florida.
    Mr. Wexler. Thank you very much, Mr. Chairman.
    Welcome, Mr. Attorney General. Thank you for being here.
    I would like, with your permission, to go back to an issue 
raised by Mr. Berman, which is this Administration's failure to 
comply with congressional subpoenas.
    This unprecedented obstructionist policy I think is best 
exemplified by the refusal of White House Chief of Staff Joshua 
Bolten and the former White House counsel, Harriet Miers, to 
even appear before this Committee to answer legitimate 
questions about the firing of nine U.S. attorneys.
    As I know you are aware, on July 25 of this past year, this 
Committee approved contempt citations for both Mr. Bolten and 
Ms. Miers for their unprecedented refusal to appear before this 
Committee.
    Sadly, this behavior, abuse of power, in my mind, by this 
Administration, is a pattern of limitless executive branch 
usurpation of authority. We have experienced endless executive 
privilege claims in the areas regarding the U.S. attorney 
firings, illegal wiretapping, and, of course, in the most 
notorious case, where the executive privilege got to the 
ludicrous point of Vice President Cheney arguing that he wasn't 
even a part of the executive branch in order to avoid a Freedom 
of Information request.
    These abuses of executive power and the fact that the White 
House still refuses to provide any answers whatsoever to 
subpoenas is one of the primary reasons I have called for 
impeachment hearings regarding the Vice President of the United 
States.
    I think it is unfortunate, I think the American people lose 
in a big way, but I believe--by the Administration not 
providing information--but I believe that impeachment hearings 
are the only way to actually obtain answers from this 
Administration.
    With that context, I am curious, have you been instructed 
by the President of the United States to enforce or not to 
enforce contempt citations issued by the Congress?
    Mr. Mukasey. Respectfully, I cannot go into and will not go 
into, by way of affirmance or denial, any conversations that I 
have had with any other member of the executive on that subject 
or related subjects.
    I should say that there is a long line of authority, going 
back several Administrations, back to the Clinton 
administration and beyond, that says that the enforcement by 
way of contempt of a congressional subpoena is not permitted 
when the President directs a direct adviser of his, somebody 
who directly advises him not to appear or when he directs any 
member of the executive not to produce document.
    That much said, there is a long history as well of 
cooperation and accommodation between branches, between 
Congress and the executive in accommodating one another's needs 
so that we don't have to come into collision in that fashion.
    Mr. Wexler. Thank you, Mr. Attorney General.
    Cn you tell me the individual that President Clinton 
instructed not to even appear before this Congress?
    Mr. Mukasey. Walter Dellinger rendered an opinion 
respecting the reach of executive privilege. I can't sit here--
--
    Mr. Wexler. I didn't ask about opinions. I am asking if 
President Clinton instructed any individual in the Clinton 
administration not to appear before Congress.
    Mr. Mukasey. I do not know that.
    Mr. Wexler. Okay. There is nobody. This is an unprecedented 
act where the President of the United States has taken the 
position that a high-level Administration official should not 
even appear. And I asked--I will ask it more generally, then--
have you been instructed to enforce or not enforce 
congressional citations?
    Mr. Mukasey. I will give the same answer that I gave 
before, which is that conversations between executive branch 
members are privileged. And that doesn't mean that I have or 
have not.
    Mr. Wexler. Okay, fair enough.
    Should Congress pass a contempt citation, will you enforce 
it?
    Mr. Mukasey. A contempt citation of----
    Mr. Wexler. With respect to the subpoenas, with respect to 
Mr. Bolten?
    Mr. Mukasey. If you are talking about a contempt citation 
based on Mr. Bolten's failure to appear----
    Mr. Wexler. Yes.
    Mr. Mukasey [continuing]. In response to a direction by the 
President that he not appear, the answer is no. Because he 
can't violate that request.
    Mr. Wexler. Are you the people's lawyer, as you said to the 
Senate, or are you the President's lawyer?
    Mr. Mukasey. I am the Attorney General of the United 
States. And it is my obligation to enforce all legally binding 
precedent.
    Mr. Wexler. Thank you, Mr. Chairman.
    Mr. Conyers. I am pleased now to recognize Judge Louie 
Gohmert of Texas.
    Mr. Gohmert. Thank you, Mr. Chairman.
    And thank you, Attorney General. It is a pleasure having 
you here.
    In talking with Darrell Issa during the break, previously, 
he was an enlisted man in the Army, and having gone though 
basic, as he did, and I went through officer basic--we were 
both sharing stories.
    And we are wondering, because of some of what we believe 
was torture--I mean, people were put at risk in the training we 
went through in the water. We drug one guy out, passed out. If 
we hadn't been there, he would have died.
    If we can find our drill sergeants' names, would you be 
willing to prosecute them for water torture?
    It was pretty rough, what we went through.
    Mr. Mukasey. I don't--I don't know what you went through. 
And I am not going to--I have expressed a reluctance to answer 
hypotheticals. And I am----
    Mr. Gohmert. Well, the truth is, apparently, the Army 
believed that there were some risks in making us go through 
training like that. But because of the risk that we faced by 
those who hated our country and wanted to destroy it, it was 
worth putting us through that kind of rigorous training.
    So it just occurs to me that we have people in uniform of 
our own country that go through worse so-called torture by 
drill instructors than those that are being defended in 
Congress at this time who want to destroy our country.
    But now I am very concerned about this issue, and it came 
up in your first series of questions, about would you go after 
our intelligence officers or our military officers who relied 
on the representations, no matter how good or bad, by a prior 
Attorney General, by a prior Justice Department, and prosecute 
them for following that instruction from the Department of 
Justice.
    The message that would come out of that is devastating. For 
people who are in uniform, for intelligence officers to be 
told, ``You follow the instructions and the direction of the 
Justice Department and that is meaningless because we still may 
come after you and put you in jail,'' will have such a chilling 
effect on the protections of this country and the kind of 
people that lost their lives on 9/11, and it really scares me.
    Now, if we disagree with the position of a Justice 
Department, we can do in this great country what was done when 
people raised Cain over our friend Alberto Gonzales. There are 
some things that could have been done better. No question about 
that. That is how we move forward.
    But I, for one, and I know there are plenty others that 
appreciate the fact that you are not willing to do what was 
done in the movie ``Animal House'' there where a guy put his 
hand around the poor guy whose car had been wrecked and said, 
``Hey, you messed up. You trusted us.''
    We shouldn't have Attorney Generals in that position, and I 
appreciate the fact that you really don't want to go there.
    Now, I also had some concerns, wasn't there a sergeant who 
was kidnapped, and because FISA had gone out, we were blind for 
at least 3 days, we gave his captors 3 days' lead time when we 
couldn't protect one of our own? Was there something to that 
story?
    Mr. Mukasey. I have heard an account relating to a delay 
necessitated by applying for authorization to conduct 
surveillance. We prepared the papers as quickly as we could and 
applied.
    I think that puts a human face on the problem posed by 
delays generally. I am not familiar with the details, but I do 
know that we acted within a matter of a couple of hours to put 
together the necessary papers to try to resolve that.
    Mr. Gohmert. You had some hypothetical thrown at you by my 
friend, and I have great respect for the Chairman of the 
Immigration Subcommittee talking about Monica Goodling. And she 
did say words to the effect that she may have stepped over the 
line when she used political considerations.
    But my understanding of her testimony and my understanding 
in talking with her afterwards was that wasn't about 
immigration judges, that was about staff. And she had concern, 
as conveyed to me, that where someone says that laws like 
election fraud, we shouldn't bother prosecuting those, that she 
felt like that was a political consideration that merited her 
consideration in whether or not to hire them.
    That is the kind of political consideration she was talking 
about, General, that some people--she thought perhaps that is a 
political consideration, would they follow the law, prosecute 
all laws, because some people pick and choose between which 
laws.
    And she was a wonderful employee, and I think she was done 
wrong here, and I just wanted to make sure the record was 
straight, as I believe, of what she said and what she meant 
here before this Committee.
    Now, I see my time has run out. I am grateful you are here. 
And I am grateful you are the Attorney General. Thank you.
    Mr. Conyers. The Chair recognizes William Delahunt, the 
distinguished gentleman, ex-prosecutor, from Massachusetts.
    Mr. Delahunt. Thank you, Mr. Chairman.
    Mr. Attorney General, in response to the first question 
that was posed by Chairman Conyers, maybe I misunderstood your 
response, but it went something like this, that, if an opinion 
was rendered that an individual acted in a way pursuant to a 
legal opinion of the Attorney General, that would insulate him 
or her from any criminal responsibility regarding his actions 
as an assistant Attorney General, or someone from the White 
House.
    Or maybe I am confused. Because it sounded like a brand-new 
legal doctrine to me.
    Mr. Mukasey. I think what I said was that we could not 
investigate or prosecute somebody for acting in reliance--we, 
being the Justice Department--could not investigate or 
prosecute somebody for acting in reliance on a Justice 
Department opinion.
    This is the question specifically concerning----
    Mr. Delahunt. Okay, but----
    Mr. Mukasey [continuing]. The disclosure that 
waterboarding----
    Mr. Delahunt. Okay. If that Justice Department opinion was 
inaccurate, and in fact violated a section of the, you know, 
U.S. criminal code, that reliance is, in effect, an immunity 
from any culpability, any criminal culpability?
    Mr. Mukasey. It is a justified reliance that could not be 
the subject of a prosecution.
    Immunity connotes culpability.
    Mr. Delahunt. You know, this is--this is brand-new legal 
theory, at least in terms of my own legal scholarship.
    I mean, relying on an opinion that has--is inaccurate, that 
is mistaken--and I am not looking to prosecute any, you know, 
individual in the Department of Justice or any of our 
government agencies. But one would only need to secure a 
Department of Justice opinion to be insulated from prosecution.
    Am I accurately portraying your position?
    Mr. Mukasey. What I said was that the disclosure that 
waterboarding was part of the CIA interrogation program at the 
time that it was carried out and that it was permitted by a 
Justice Department opinion would bar--should bar--an 
investigation of the people who relied, justifiably, on that 
opinion in conducting their activity----
    Mr. Delahunt. But for--excuse me, for the sake of argument, 
let us hypothetically concede that waterboarding is in 
contravention to an international obligation, pursuant to the 
Convention against Torture.
    And if an opinion was rendered that amounted to malpractice 
that whoever employed that particular technique, simply by 
relying on that opinion would--ought not to be investigated or 
would be legally barred from investigation and criminal 
responsibility--is that what you are telling us?
    Mr. Mukasey. If you are talking about a legal mistake, 
there is an inquiry with respect to, not the OLC opinions I am 
talking about, but other OLC opinions relating to surveillance 
that relate to whether people properly rendered opinions or 
didn't.
    But to rely on an opinion that some later Attorney General 
thinks is mistaken would, yes, bar the person who so relied in 
good faith from being prosecuted.
    Mr. Delahunt. I find that--I find that position a new legal 
doctrine, if you will. The law is the law. We can all have 
opinions in terms of our understanding and interpretation of 
the law.
    And if what you are saying--and if we can agree, just for 
the sake of discussion purposes, that waterboarding violates 
not only American domestic law, but our international 
obligations under the Convention of Torture, if there is an 
opinion promulgated by the department, it insulates those who 
actually perpetrated the act or even ordered the act to be 
conducted.
    Mr. Mukasey. The laws you are talking about are phrased in 
general terms as to which there is a great deal of dispute, 
some people lined up on one side, others lined up on another.
    If it comes to pass that somebody at a later date finds 
that the opinion should have been different from what it was, 
the person who relied in good faith on what the person who 
arrived later says was an erroneous determination is protected, 
because to do otherwise would be to say to everybody out there, 
``You can't rely on any----''
    Mr. Delahunt. But is there legal precedent for that 
statement that you just made to this Committee?
    Mr. Mukasey. There is a practical consideration.
    Mr. Delahunt. Okay. But there is not a legal precedent for 
it?
    Mr. Mukasey. I can't sit here and cite you a case.
    Mr. Delahunt. Okay.
    I yield back.
    Mr. Conyers. The Chair recognizes Linda Sanchez, who is the 
Chairperson of Subcommittee number five, Administrative Law.
    Ms. Sanchez. Thank you, Mr. Chairman.
    And thank you, Mr. Mukasey, for coming and indulging our 
questions.
    One month ago Chairman Conyers, Representative Pascrell and 
I sent you a letter addressing our concerns about the growing 
number of deferred and nonprosecution agreements pounded out by 
Federal prosecutors.
    To date, we have yet to receive a response from your 
office. We discussed this personally on the phone yesterday.
    But I just want to bring to your attention that that letter 
highlighted a study that was conducted by Lawrence Finder and 
Ryan McConnell, which found that the number of deferred and 
nonprosecution agreements between the Department of Justice and 
corporations had grown exponentially last year to 35 from just 
five in the year 2003.
    Having said that, that study in many ways is incomplete 
because in fact there is no requirement to report these 
agreements and therefore we are not even sure exactly how many 
agreements between corporations and Federal prosecutors 
actually exist.
    I am curious in knowing when you will disclose to this 
Committee all of the information relating to these agreements 
that was requested in our letter of January 10th.
    Mr. Mukasey. You are right, we discussed this yesterday, 
and I am going to get back as promptly as I can with respect to 
your letter.
    I do want to stress, as we discussed yesterday, that the 
increasing phenomenon of monitors is something that we noticed 
well before there came to be publicity about it and have been 
looking into it.
    We have asked the Attorney General's Advisory Committee, 
which is a group of United States attorneys from around the 
country who can gather information from United States attorneys 
about the prevalence of the phenomenon and whether there is a 
way of coming up with best practices or guidelines----
    Ms. Sanchez. But the question I am asking you is, when can 
we expect to receive the information that we have requested in 
the letter?
    Mr. Mukasey. I can't give you a deadline. That is one of 
the things we want to gather up, to figure out not only the 
numbers, but what to do.
    Ms. Sanchez. Okay.
    Mr. Mukasey. And it is an outgrowth of increased 
prosecution of corporations----
    Ms. Sanchez. Let me ask you this. Do you support the full 
disclosure by the Department of Justice of all deferred and 
nonprosecution agreements prospectively in the future, moving 
forward?
    Mr. Mukasey. With respect, I would like to hear from the 
Attorney General's Advisory Committee as to not only the 
prevalence of the phenomenon, but whether confidentiality 
agreements serve or disserve the larger interest in seeing to 
it that wrongdoing is rooted out, that people who have to be 
prosecuted, individuals that have to be prosecuted are, and 
that unnecessary damage isn't done.
    Ms. Sanchez. So, at this point----
    Mr. Mukasey. I will try to get the information for you.
    Ms. Sanchez. Okay. Now, attention to the issue of deferred 
prosecution agreements came about, in part, because of the 
actions of U.S. Attorney Christopher Christie.
    In the process of deferring a prosecution, Mr. Christie 
selected his past superior, former Attorney General John 
Ashcroft, to serve as a Federal monitor and collect fees 
reported to be in excess of $52 million.
    I know that, during your testimony to the Senate Judiciary 
Committee, you admitted deficiencies in the way that Federal 
monitors are selected, and made the suggestion that, in the 
future, Federal prosecutors may have to submit reports to the 
department on the selection of those monitors.
    Do you believe that a lack of guidelines on how independent 
corporate monitors are selected has fostered the appearance of 
cronyism, where U.S. attorneys can appoint their friends and 
former superiors to those lucrative positions?
    Mr. Mukasey. I think it is helpful to have the experience 
of other U.S. attorneys, before a U.S. attorney embarks on a 
course of conduct, be it the selection of a monitor or anything 
else.
    And without getting into labels like ``cronyism'' and so 
on, I think it is useful to know what the best way is to go 
about it, whether it involves the company in the process of 
selecting from a group or what.
    Ms. Sanchez. Let me ask you--do you think that the contract 
that was awarded to Mr. Ashcroft was excessive?
    Mr. Mukasey. I don't know the details of the contract that 
Mr. Ashcroft has. And I would point out that the money that we 
are talking about is not public money. This is money that comes 
from the corporation. I know no other details.
    Ms. Sanchez. One of the things that I am very deeply 
concerned about, with respect to this particular issue, is the 
lack of any judicial oversight in regard to deferred 
prosecution agreements.
    And I am going to give you, just, an example.
    For example, if an individuals is charged with a crime and 
agreed to a plea bargain with the prosecution, then that plea 
must go before a judge who has the power to deny and, in some 
cases, alter that agreement, based on judicial discretion.
    However, with regard to deferred prosecution agreements 
that are struck between Federal prosecutors and corporations, 
neither party ever sees the inside of a courtroom, let alone 
have to put these agreements before a judge.
    So I am wondering if you concerned that this has created 
two completely different systems of justice, one for 
individuals, that is accountable to the judiciary, and another 
for corporations, that is based entirely on the discretion of 
Federal prosecutors.
    Mr. Mukasey. All right. Prosecutors proceed under 
guidelines that are very strictly set by the department, that 
are very strictly reviewed by the department.
    Ms. Sanchez. But there is no judicial review of those 
deferred prosecutions--or am I mistaken on that?
    Mr. Mukasey. I think you are not mistaken about the 
question of whether all such agreements are reviewed.
    Ms. Sanchez. Do you think it is generally good policy that 
they would not be reviewed by a judge?
    Mr. Mukasey. In order for an agreement to be ordered, it 
would certainly have to be reviewed by a judge.
    I think that the decision whether to charge or not charge 
has always been an executive decision.
    Ms. Sanchez. And yet----
    Mr. Mukasey. And prosecutors reach those decisions in all 
settings----
    Ms. Sanchez. But yet----
    Mr. Mukasey [continuing]. Regardless of whether they 
involve nonprosecution agreements.
    Ms. Sanchez. I see that my time has expired. I will submit 
follow-up questions in writing. And I thank the Chairman for 
his indulgence.
    Mr. Conyers. The Chair is pleased to recognize the 
gentleman from Tennessee, Steven Cohen.
    Mr. Cohen. Thank you, Mr. Chairman, Mr. Mukasey.
    I just want to follow up a little bit on what Mr. Wexler 
asked you. You represent the United States of America. I know 
that. But does that also include representing Congress in 
certain circumstances?
    Mr. Mukasey. It includes representing all interests that I 
have to represent. I am not familiar with a situation in which 
the Attorney General directly represented Congress. I am not 
ruling it out.
    Mr. Cohen. Well, in a contempt situation, would you not be 
in essence representing the actions, the instructions of the 
United States Congress, if they voted to cite somebody for 
contempt?
    Mr. Mukasey. In a contempt situation, if a contempt 
prosecution goes forward, the statute says that it must go 
forward. And so the Justice Department would be acting at the 
direction of Congress to the extent it made a contempt finding 
and directed that an action proceed.
    Mr. Cohen. So if Congress does vote to cite Mr. Bolten and 
Ms. Miers for contempt, you would prosecute them as the statute 
requires.
    Mr. Mukasey. I think what I said was there is a great deal 
of authority that says that that prosecution cannot go forward 
in response to a direction from the President that they not 
comply with a subpoena.
    Mr. Cohen. But if Congress does cite them, then Congress 
has gone forward. And then you have got a different situation, 
sir, I would submit to you.
    You have got to make a Nicholas Katzenbach decision.
    Mr. Mukasey. I am not familiar with the decision of 
Nicholas Katzenbach that you are referring to.
    Mr. Cohen. Remember when he showed some kind of moral 
decision to not follow the orders of a President that were 
improper?
    Mr. Mukasey. The decision about whether to permit a senior 
adviser to testify before Congress raises substantial issues of 
separation of powers. And in response to an order that that not 
go forward, I cannot envision going forward.
    Mr. Cohen. So if Congress does vote to cite them for 
contempt, you would not comply with the duties of your office 
and prosecute that case, based on some other opinion you have 
of Congress overreaching, in your opinion?
    Mr. Mukasey. I will examine what happens when it happens. 
But I would certainly not hold any hope or expectation that I 
would act in contravention of a longstanding authority which 
says that senior advisers to the President are not obligated 
to--cannot be prosecuted for contempt in response to a 
direction that they not appear--direction from the President.
    Mr. Cohen. Is it that they shouldn't testify, or they 
shouldn't appear?
    Mr. Mukasey. Senior advisers?
    Mr. Cohen. Yes, sir. Should they not testify or should they 
not appear?
    Mr. Mukasey. The latter, I believe.
    Mr. Cohen. They shouldn't appear and, obviously, then not 
testify?
    Mr. Mukasey. I believe that is correct.
    Mr. Cohen. Would you think it would be more appropriate to 
appear or have a counsel appear?
    Mr. Mukasey. My notion of propriety is something that, I 
have said before and I will say again, I try to leave out of 
it.
    Mr. Cohen. But that is an action. If somebody does not even 
appear, that is a separate action from not testifying. One 
thing is asserting an immunity, and saying, ``I cannot testify 
to that because I have an executive privilege.''
    Another thing is the action of not even responding and 
coming to the congressional Committee, and/or have somebody 
come on your behalf. That is a separate action.
    Do you think executive privilege goes so far as to say, you 
don't have to appear and assert your privilege?
    Mr. Mukasey. I understand the distinction. I believe that 
the authority, with respect only to senior advisers to the 
President, is that they not only need not testify; they need 
not appear.
    Mr. Cohen. Let me ask you this. Ms. Goodling said she went 
beyond. And she had immunity. And she obviously did something. 
You said something about immunity implies culpability, right?
    And she got immunity when she testified here. And she said 
she went too far.
    What have you done to instruct your Justice Department not 
to go too far and not to be political in whom you hire and whom 
you use the honors program, in particular?
    Mr. Mukasey. I have had, in conversations and public 
pronouncements--being a very large number--in which I have made 
it quite clear----
    Mr. Cohen. Any memos?
    Nothing in writing?
    Mr. Mukasey. As I sit here, I can't--I will provide you 
with any memos that embody that thought. There is plenty in 
writing that embodies that thought.
    Mr. Cohen. Let me ask you this. The drug war--we have had a 
drug war for many years, going back to Nixon. It has been a 
long time we have had drug wars.
    We still have it. Obviously, we haven't--you would agree we 
haven't necessarily won it; it is still going on, right?
    Mr. Mukasey. I believe we continue to prosecute drug cases.
    Mr. Cohen. What do you think we should do differently to 
win the drug war and the scourge of meth, the scourge of crack 
and cocaine, and drugs like that?
    What can we do to win that war, or should we continue to do 
what we have been doing, over the years?
    What changes can you recommend?
    Mr. Mukasey. We are changing our strategies in response to 
the strategies of the people who are trying to sell this stuff.
    We are cooperating with foreign governments to a degree 
unprecedented in our history, most particularly with the 
government of Mexico, which has extradited people in record 
numbers and is experiencing enormous violence, as it constricts 
the areas in which drug cartels can function.
    And they have undertaken, literally, a life or death 
struggle, in which they are helping us and we are trying to 
help them.
    Mr. Cohen. I was looking more----
    Mr. Conyers. The gentleman's time has expired.
    Mr. Cohen. Thank you, Mr. Chairman.
    And thank you, Mr. Mukasey.
    Mr. Conyers. The Chair recognizes Adam Schiff, the 
distinguished gentleman from California and the former 
assistant U.S. attorney.
    Mr. Schiff. Mr. Attorney General, I appreciate your being 
here. As a former member of the department, I am delighted that 
there is new leadership at the department.
    I am gravely concerned, though, about your testimony on the 
torture issue, which I find murky, ambiguous, and which 
establishes no bright line.
    I am concerned about it for what it says to our own 
personnel, and I am concerned about it for what it says to the 
rest of the world.
    And I think it will be very hard for you to make the 
argument with other Nations, when our troops are captured on 
the battlefield, that they cannot torture because we don't 
torture.
    I think our argument will be undermined by any ambiguity on 
that subject here at home.
    And I believe that the buck really stops with you, Mr. 
Attorney General. I don't think that it can be delegated to a 
relatively anonymous attorney at the Office of Legal Counsel to 
decide what is lawful and what isn't lawful.
    What I would like to ask you is the following. Shouldn't it 
be the job of the Attorney General to investigate whether the 
law has been violated, notwithstanding whether there is an 
opinion by a lawyer at the DOJ that believes otherwise?
    Shouldn't it be the responsibility of the Attorney General 
to investigate whether the law has been broken?
    And, if the law has been broken, then come before the 
American people and say: The law was broken; people were 
tortured in violation of the law; we have curtailed that 
practice; and I am recommending either, A, that those 
responsible be prosecuted or, B, that those responsible not be 
prosecuted because they acted in good-faith reliance on an 
opinion; or that they be prosecuted and the President consider 
the power of the pardon.
    But to abdicate, in my view, to say that, because of an 
opinion of legal counsel, we don't need to investigate whether 
the law was broken, seems to me a belittling of your 
responsibility as Attorney General. And I wish you would 
comment on that.
    Mr. Mukasey. Generally, I have resisted requests to comment 
on vast, unfocused questions.
    Mr. Schiff. Well, let me focus the question. Why don't you 
investigate whether the law was broken, and then make a 
determination about whether prosecution is warranted, instead 
of taking a position you are not even going to investigate 
whether the law was broken?
    Mr. Mukasey. The only signal for the conduct of such an 
investigation is the disclosure that activity that some people 
claim is illegal but is in fact the subject of an opinion, 
namely that it was legal for inclusion in the CIA interrogation 
program--that is the only signal for the opening of an 
investigation.
    That cannot signal the opening of an investigation without 
telling people that they cannot rely on Justice Department 
opinions.
    Mr. Schiff. Mr. Mukasey, are you saying----
    Mr. Mukasey. Also----
    Mr. Schiff. Mr. Mukasey--because I have a limited amount of 
time and I want to be very specific in my questions--are you 
saying that, even if you believe that the law was violated, you 
lack the power to open an investigation into that?
    Mr. Mukasey. If I believe that a particular practice is 
unlawful, then, if it is presented to me in concrete terms, I 
can take steps to say that it is unlawful, going forward.
    Mr. Schiff. But we are presenting----
    Mr. Mukasey. But I----
    Mr. Schiff. Mr. Attorney General----
    Mr. Mukasey. One comment that you made that is very 
portentous, and needs to be corrected, and that is the 
suggestion that so much as a line of what I said endangers 
American troops.
    American troops fight in uniform----
    Mr. Schiff. I understand that. I am not----
    Mr. Attorney General, I am not trying to----
    Mr. Mukasey. The Geneva Conventions----
    Mr. Schiff. I am not--yes, but it is my time. I would like 
to ask the question. And the Attorney General asked for a 
specific question.
    I am not, in any way, trying to make equivocal--or 
equivalent--our troops in the field, and what Al Qaida is 
doing. Don't even go there, Mr. Attorney General.
    But what I am saying is, if we don't establish a bright 
line, in this country, that we don't torture, then it makes it 
very hard for us to argue to other countries that they 
shouldn't torture our people, period.
    And I would still like an answer to my question. Why 
doesn't the Attorney General of the United States have the 
power, notwithstanding a subordinate lawyer in the Office of 
Legal Counsel, to investigate whether a crime has been 
committed, if you believe that torture has been committed, in 
violation of the law?
    Why wouldn't you have the power to investigate that?
    Mr. Mukasey. We have a bright line. We bar the torture. The 
evaluation of whether a particular practice constitutes torture 
could be presented to me only in a particular situation, 
namely, whether it was defined, part of a proposed program, in 
which case I would pronounce on it one way or the other, as I 
think I----
    Mr. Schiff. And you think that is a bright line that we can 
hold up to the rest of the world, that it depends on whether it 
is part of a program authorized by an attorney in the Office of 
Legal Counsel?
    Is that the standard we would ask the rest of the world to 
hold up?
    Mr. Mukasey. We have and do defend our position before the 
rest of the world. We have people in the State Department who 
do a superb job at that. And we will continue to do that.
    Mr. Schiff. Does the definition of torture--if I can ask 
one last question, Mr. Chairman?
    You have said, in your Senate testimony, that--I believe--
that, if you were being waterboarded, you would consider it 
torture.
    Does the definition of torture depend on who is being 
tortured or the circumstances in which they are being tortured?
    Mr. Mukasey. I said, in my Senate testimony, that it would 
seem like torture to me. I said that as part of a much larger 
amount of testimony that indicated, I think, quite clearly, 
that I would not use my own tastes and preferences as the basis 
for arriving at a legal determination about whether a practice 
that was actually put before me, in concrete terms, was or was 
not torture.
    Mr. Schiff. Are you taking the position, Mr. Attorney 
General, that a practice which may be torture under certain 
circumstances is not torture under others, because either the 
information is desirable----
    Mr. Conyers. The time of the gentleman has expired. You may 
finish this question and get a response.
    Mr. Schiff. Thank you, Mr. Chairman.
    And the question is, are you taking the position that 
whether something is torture or not depends on who is being 
subjected to the technique and the desirability of the 
information?
    Does it vary, or is there simply one standard which is 
governed by the nature of the coercion?
    Mr. Mukasey. The question of torture turns on what is in 
the torture statute, which does not speak, so far as I know, to 
the nature of the information. It speaks to the intent of the 
person imposing whatever it is that is claimed to be torture, 
and depends on other circumstances.
    Mr. Schiff. I would only say, that is not a bright line, 
that I think any of us can apply.
    Mr. Conyers. The gentleman's time has expired.
    The Chair will call for a 5-minute recess.
    [Recess.]
    Mr. Conyers. The Committee will come to order.
    The Chair recognizes Hank Johnson of Georgia.
    Mr. Johnson. Thank you, Mr. Chairman.
    Mr. Attorney General, it is good to have you here today.
    The Web site, tpmmuckraker, which played an important role 
in providing information to the public concerning the U.S. 
attorney scandal, reveals that it has recently been removed 
from the Department of Justice's press release e-mail 
distribution list.
    Has there been a change in the press release distribution 
list since you have become Attorney General?
    Mr. Mukasey. The short answer is I am not familiar with how 
the distribution list of press releases is arrived at.
    I do know that all the press releases that we issue are on 
our Web site. So they should be generally available. But I am 
not familiar with----
    Mr. Johnson. Have there been any names, any organizations 
taken off the list, to your knowledge, since you have become 
Attorney General?
    Mr. Mukasey. I do not know.
    Mr. Johnson. So it was not you who made the decision to 
take this Web site, tpmmuckraker, off of the press release 
distribution list.
    Mr. Mukasey. I was not aware of it until it was called to 
my attention in a letter, I believe, from the Chairman.
    Mr. Johnson. All right. Now, Mr. Attorney General, in your 
Senate testimony, you stated that you would not declare water 
boarding illegal because it would ``tell our enemies exactly 
what they can expect.''
    Attorney General, can you answer the following question? 
Would it be lawful for an American interrogator to use the rack 
and screws during a critical interrogation?
    Mr. Mukasey. There is a line of hypotheticals that one 
could go down that would get to an indication to an enemy about 
what sort of thing we do and what sort of thing we don't do.
    That is the reason and that is the only reason that I am 
not going to get into hypotheticals about what might or might 
not be permissible.
    We have a classified program of interrogation that has gone 
through OLC opinions, that have been permitted by OLC opinions, 
and to which we adhere. Waterboarding was once part of that 
program. It is no longer. And that is all I can say.
    Mr. Johnson. Well, let me ask you this. Would the use----
    Mr. Mukasey. People could go down the list of hypotheticals 
involving matters that are----
    Mr. Johnson. You would never say that any of these 
strategies or interrogation techniques would be impermissible 
under any standard. Let us say the use of the electric shock as 
a harsh interrogation tactic. Would that ever be legal for us 
to employ?
    Mr. Mukasey. Once again, one could go down an entire list 
of hypotheticals that would indicate what goes on one side of 
the line and what goes on the other.
    There are specific prohibitions against murder, rape, and 
other matters that are the subject of specific legislation, 
and, obviously, Congress could, if it chose, bar any specific 
practice and make it unlawful.
    We can go down a list of hypotheticals all afternoon.
    Mr. Johnson. All right. Well, I won't do that, but I will 
go at it from this standpoint.
    Under what circumstances would it ever been permissible 
under international law to interrogate a U.S. citizen, a 
foreign--an enemy nation, to interrogate a U.S. citizen by 
strapping the U.S. citizen to a board and suffocating him or 
her with water, with the intent to create the fear of death?
    When would that ever be permissible under international 
law?
    Mr. Mukasey. Once again, I am not going to go through a 
list of hypotheticals of what might be permitted or might not 
be permitted to us or anybody else, because to do so would 
indicate the contours of what may or may not be permitted under 
a program that is classified.
    I understand that one can create an effect by doing that, 
but I am not going to respond to it.
    Mr. Johnson. And this classified program is not for the 
eyes or ears of the Members of this Committee.
    Mr. Mukasey. To my knowledge, it is, it has been for the 
eyes and ears of the Intelligence Committee, which oversees the 
CIA, which administers the program.
    Mr. Johnson. Well, let me ask you about the investigation 
of the abuse with respect to CIA tapes investigation.
    Will you now expand the investigation into the CIA tapes 
destruction to inquire into the legality of the underlying 
interrogations?
    Mr. Mukasey. The progress of the CIA tapes investigation is 
entirely in the hands of the man who is conducting it, and that 
is John Durham.
    Mr. Johnson. And he is a man that was hand-selected by you. 
He is a Department of Justice employee, career employee.
    Mr. Mukasey. He is a career prosecutor who was hired and 
compiled an enviable record long before I got here and is going 
to be here long after I leave.
    Mr. Johnson. What guarantees would the American public have 
that Mr. Durham is not acting to please his employers, his 
boss, which would be you?
    Mr. Mukasey. John Durham, he doesn't report directly to me. 
He reports, as do other U.S. attorneys, to the Deputy A.G., who 
then reports up to me.
    Mr. Conyers. The gentleman's time has expired.
    You may finish your response, General Mukasey.
    Mr. Mukasey. John Durham will do one of two things at the 
end of his investigation. He will either bring charges, which 
will necessarily be made public, or he will decline to bring 
charges, which I can't imagine would not be made public.
    Mr. Johnson. Thank you, Mr. Attorney General.
    Mr. Conyers. The Chair recognizes Anthony Weiner, the 
distinguished gentleman from New York.
    Mr. Weiner. Thank you, Mr. Chairman.
    Attorney General, welcome.
    One of the most noteworthy things about your ascension to 
Attorney General is, hopefully, it ends the partisanship and 
the sense of politicization of the agency, and I think you 
would agree that the agency, in Democratic and Republican 
administrations alike, is populated by extraordinary 
professional prosecutors and their support staff.
    And it is very important that they are getting the message, 
hopefully, from you, that while we might disagree on things 
substantively and politically, the notion that the agency is on 
a path to getting back to a place to where it is viewed as a 
professional place, and there aren't political appointments 
being made, is something that is laudable.
    And I think the message should go out that--and it has, I 
think, to your credit, that the days of political hiring are 
behind us. That doesn't mean our investigation would end, but I 
think it is important that that message be sent.
    Mr. Attorney General, could I have your views on the COPS 
program? Was it a success?
    Mr. Mukasey. So far as I know, the COPS program has been a 
success in that it--in places where it was used as it was 
supposed to be used, i.e., as money that would encourage 
localities or would give localities the opportunity to try out 
certain configurations of their police force, would then be met 
with funds from those localities when they found that that was 
worthwhile.
    To that extent, I believe it was successful.
    Mr. Weiner. Was it a failure in any degree? What is your 
sense of the--what scenario that it didn't succeed?
    Mr. Mukasey. I don't know enough about it. I don't know of 
any program that has ever succeeded completely nor do I have 
any reason to believe that the COPS program was, in any sense, 
larger or significantly small, even, a failure.
    Mr. Weiner. The reason I ask this is there seems to be some 
organizational schizophrenia within the Bush administration 
about the program, but Attorney General Ashcroft, for example, 
said it was one of the most important tools to drive down crime 
during the period that crime precipitously dropped in this 
country.
    Democrats and Republicans alike, including the former 
Chairman, we passed an authorization, the first time it 
happened in a while, to the credit of the former leadership of 
this Committee, in a bipartisan way, we passed. The President 
signed it.
    One of the things that he pointed to was the fact that the 
COPS program was being re-funded.
    And then we, year after year, open up the budget and the 
folks at OMB zero out the program. And so it seems that there 
is an internal debate going on within the Administration.
    On one hand, there are people are like yourself and others 
who have sat in that seat who have said the program is a 
success, and then there are the precipitous drops in the 
funding to the point where it is basically zero for the hiring 
component now.
    But would I put you in the camp with the President and John 
Ashcroft to say that this is a program that we should try to 
figure out ways to save or is this--or do you believe that the 
zeroes that are in the budget reflect what the policy is now of 
the Administration and believe the COPS program should be 
allowed to expire?
    Mr. Mukasey. I don't think I should be put to a choice 
between one camp or the other camp when it comes to a specific 
program. What I have tried to do and what I think others at the 
department are trying to do is to approach the underlying 
problem that is addressed by the COPS program and a whole lot 
of others, including the Safe Streets program and a whole lot 
of other programs, and that is to cut down crime and to 
approach it in a coherent way.
    When we fund a center that gathers gang information and 
disseminates it to the local communities and thereby allows 
them to meet that particular kind of crime, we act in a way 
that, to a certain extent, diminishes the need for other----
    Mr. Weiner. Yes, but you will forgive me. I don't know what 
program the Justice Department can possibly implement that 
diminishes the need for cops on the street, right? I mean, I 
think people agree.
    Are you familiar with the record of former Mayor Rudolph 
Giuliani?
    Mr. Mukasey. I am familiar with part of it. I am not an 
expert on it.
    Mr. Weiner. Are you familiar with the good parts? Not 
talking about the bad parts.
    Mr. Mukasey. I am familiar with some of the good parts and 
some of the good parts of the record of his predecessor.
    Mr. Weiner. The reason I mention it tongue in cheek is that 
it was Mayor Giuliani, a Republican, who was successful in 
driving down crime, credited the ability to do that with the 
influx of Federal dollars that allowed about 7,000 additional 
cops to be hired in New York City.
    I don't think that Mayor Giuliani or Bill Clinton or your 
predecessor would say that one program necessarily works alone, 
but the fact of the matter is the Administration has said zero 
dollars and zero cents would go to hiring police officers in 
this budget.
    And I am just trying to get a sense from you whether that 
is something you are going to join us and to try to change or 
whether you are going to be an advocate for that philosophy.
    Mr. Mukasey. I am going to try to focus the money where it 
can best be used. I agree that there are some realities of the 
budgeting process that result in money not being provided for 
in a budget, being put in by Congress and so on.
    A lot of that is way beyond me, I am new to this, and, to a 
certain extent, above my pay grade. That said, I agree that you 
need cops to fight crime.
    Mr. Weiner. And I thank you for being here. In case you 
hadn't checked your initiation manual, you get one hearing to 
say ``I am new here.'' So the next time, you will lose that 
cover.
    But thank you for your time.
    Mr. Conyers. Thank you, sir.
    The Chair is pleased to recognize Artur Davis, himself a 
former assistant U.S. attorney, from Alabama.
    Mr. Davis. Thank you, Mr. Chairman.
    General Mukasey, welcome.
    Let me, as we conclude today, let me turn to a subject that 
has, frankly, not come up. It is the question of political 
influence or possible political influence over prosecutions.
    There have been three instances in the last year when this 
Committee has received sworn testimony regarding the 
possibility that there were political considerations brought to 
bear around charging decisions by local U.S. attorneys.
    In my state, I represent the state of Alabama, a woman, who 
happens to be a Republican, testified under oath before the 
Committee staff in private session and provided a sworn 
affidavit to the Committee.
    She alleged that she was present during a conversation in 
which Republican political operatives discussed the viability 
of prosecuting or the desirability of prosecuting the governor 
of Alabama, whom they happened to be locked in a political 
contest with.
    She also said in her sworn testimony that she was told on 
another occasion that the former deputy chief of staff to the 
President, Mr. Rove, had contacted senior officials of the 
Department of Justice and spoken about the desirability of 
prosecuting the former governor of Alabama.
    This Committee also heard sworn testimony from David 
Iglesias, who is United States attorney in New Mexico, who 
asserts that a Member of the United States Congress and a 
Member of the United States Senate both contacted him to 
inquire about the status of ongoing investigations and to 
question whether sealed indictments might be unsealed in time 
to shape the November 2006 elections.
    And, finally, John McKay, formerly the United States 
attorney in Seattle, Washington, testified before this 
Committee that he received a phone call from the chief of staff 
to a Member of Congress questioning about whether he, McKay, 
intended to bring a particular prosecution.
    I understand that you have not had an opportunity to make 
an assessment of whether the claims are accurate or not, but I 
want to pose this set of questions to you.
    Can you think of any instance, based on your knowledge of 
the law, in which it would be appropriate for a political 
operative to urge that a U.S. Attorney prosecute someone?
    Mr. Mukasey. I can't conceive of any circumstance in which 
it would be appropriate for the U.S. attorney to have such a 
conversation.
    Mr. Davis. Can you conceive of any circumstance in which it 
would be appropriate for a United States Senator to pick up the 
telephone and ask a U.S. attorney about the status of an 
investigation?
    Mr. Mukasey. Once again, I can't conceive of any 
circumstance in which it would be proper for the United States 
attorney to respond to any inquiry from any political figure 
about the bringing or the withholding of a prosecutor's 
decision.
    Mr. Davis. Can you think of any instance in which it would 
be appropriate for the deputy chief of staff, who had no legal 
counsel responsibilities under President Bush, can you think of 
any circumstance in which it would be appropriate for that 
individual to have contacted senior officials at the Department 
of Justice to urge the prosecution of a former governor?
    Mr. Mukasey. I have issued guideline with regard to 
contacts----
    Mr. Davis. Just answer that question as you answered the 
others. Can you think of any instance of appropriateness 
regarding that scenario?
    Mr. Mukasey. There is a limited number of people, limited 
to a very small number----
    Mr. Davis. I understand that and I will get that, but just 
so we can follow the line of questions, can you think of any 
instance in which it would be appropriate for a deputy chief of 
staff to inquire of a senior official about the status of a 
case?
    Mr. Mukasey. I can't think of a circumstance in which it 
would be appropriate for a senior official to respond to an 
inquiry of that sort with information about whether a 
prosecution is going forward or not going forward.
    Mr. Davis. So given those statements, General, given that 
the allegations have been made under oath before the Committee 
in all three instances, the first question, how much would it 
concern you if all three of these sworn statements were true?
    Mr. Mukasey. I can't quantify my level of concern. What I 
can tell you----
    Mr. Davis. Would it be a high level of concern?
    Mr. Mukasey. I don't think that it is appropriate for 
United States attorneys to be talking to political people 
about----
    Mr. Davis. So given that--and I am pushing you because our 
time is limited. Given that, what steps have you taken to 
determine whether the claims of the Alabama lawyer or Mr. 
Iglesias or Mr. McKay are accurate?
    Mr. Mukasey. The case involving the Alabama lawyer is, I 
believe, sub judice before a circuit court and----
    Mr. Davis. But you understand that that is not a subject of 
the appeal. That is in no way the subject of what is being 
raised in the appeal.
    The question of whether there were improper contacts----
    Mr. Mukasey. That is an interesting point, because as far 
as I know, there has been no request for a remand.
    Mr. Davis. Well, but what I am asking you, sir--if I can 
just have an answer to my question, Mr. Chairman.
    What steps have you taken in any of those three instances 
to determine whether or not the--because you have stated that 
all three would raise serious concern. You have stated that all 
three, if so, would be improper.
    As the current Attorney General, what steps have you taken 
to see if these improprieties, in fact, happened, sir?
    Mr. Mukasey. I have limited myself to the participation of 
the people on the other end of the telephone calls, and I have 
not made direct inquiry as to whether those instances occurred 
or what those responses were.
    I have made clear----
    Mr. Davis. Given your concerns, why not?
    Mr. Mukasey. I have made clear to the department that it is 
not proper for anybody----
    Mr. Davis. But if it happened in the past, General--if he 
can answer my question, Mr. Chairman.
    Given that this may have happened in the past, given the 
allegations that have been made under oath before this 
Committee in public and private testimony, given that two of 
those allegations have been repeated before the U.S. Senate, 
given that you think it is inappropriate that these events 
happened, what steps have you taken to determine whether or not 
they occurred?
    Mr. Mukasey. If any impropriety or any lapse of proper 
standards was engaged in by any United States attorney, that 
would be a subject initially for the Office of Professional 
Responsibility.
    Mr. Davis. Has the OPR conducted an investigation?
    Mr. Conyers. The gentleman's time has expired.
    Before we conclude this hearing, General Mukasey, on behalf 
of the Committee, I express our deep appreciation of your first 
appearance. It has been a lengthy one. I can assure you that 
the next one will not be as long, but it will be as equally 
important.
    We are going to go through the record and examine, each of 
the more than 30 Members, what they want to focus on next time.
    It seems to me that because of the importance of your work 
and our responsibility, that if there are ways that we can 
advise you of the areas that we want to work in before you get 
here, so that this isn't some kind of a pop quiz, we think that 
it would be more productive for all of us.
    And in that spirit, I thank you not only for what you have 
done and your cooperation, but what we have to do the rest of 
the year.
    Ms. Jackson Lee. Mr. Chairman, may I put a unanimous 
consent request in the record?
    Mr. Conyers. We would like to continue this relationship 
and I would also like to give, without objection, every Member 
5 legislative days to add anything they wish to the record, as 
well as you.
    So I yield to the gentlelady from Texas for a unanimous 
consent request.
    Ms. Jackson Lee. I thank the gentleman.
    I want to put into the record a letter to the Attorney 
General regarding the status of the DNA lab in Harris County 
and the district attorney's office, and a letter regarding the 
treatment of imams at the Nation's airports and H.R. 4545.
    Mr. Conyers. Without objection, so ordered.
    And the Committee is adjourned.

    [Whereupon, at 3:21 p.m., the Committee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

       Prepared Statement of the Honorable Sheila Jackson Lee, a 
    Representative in Congress from the State of Texas, and Member, 
                       Committee on the Judiciary

    Mr. Chairman, thank you for your leadership in convening today's 
very important hearing on the oversight of the Department of Justice. I 
would also like to thank the ranking member the Honorable Lamar S. 
Smith, and welcome our extremely distinguished witness, the Attorney 
General of the United States, the Honorable Michael Mukasey. Welcome 
Mr. Attorney General.
    In addition to holding the seat of my hero, role model, and 
predecessor, the incomparable Barbara Jordan, one of the reasons that I 
have been so proud to be a member of the Committee on the Judiciary 
throughout my six terms in Congress is that this Committee has 
oversight jurisdiction over the Department of Justice, which I have 
always regarded as the crown jewel of the Executive Branch.
    In recent years the reputation of that Department, which has done 
so much to advance the cause of justice and equality for all Americans, 
has been tarnished. And that is putting it charitably. This Committee 
has no greater challenge and obligation to the nation than to help 
restore the Department of Justice to its former greatness.
    Anyone who has observed this Committee over the years knows that I 
have a deep and abiding passion about the subjects within its 
jurisdiction: separation of powers, due process, equal justice, habeas 
corpus, juvenile justice, civil liberties, antitrust, and intellectual 
property. But, Mr. Chairman, today I wish to focus on the record and 
performance of the Department of Justice in five areas: (1) the 
Department's civil rights record; (2) the on-going investigation into 
the firing of the 8 United States Attorneys in December 2006; (3) the 
CIA's destruction of tapes recording terrorist suspect interrogations; 
(4) the enforcement of U.S. federal laws to protect U.S. contractors in 
Iraq; and (5) the various cuts in the 2009 fiscal year budget. Allow me 
to describe my substantial concerns and the responses I hope to hear 
from the Attorney General.

                        CIVIL RIGHTS ENFORCEMENT

    Mr. Chairman, the Department of Justice is the nation's largest law 
enforcement agency and it is no exaggeration to state that its Civil 
Rights Division used to be the nation's largest civil rights legal 
organization. It wields the authority and the resources of the federal 
government on difficult and complex issues and has helped bring about 
some of the greatest advances for civil rights. However, the 
Department's record under this Administration indicates that it is not 
living up to its tradition of fighting for equal justice under law.
    The Bush administration has abdicated its responsibility to enforce 
the nation's most critical laws. Since January 20, 2001, the Bush 
Administration has filed 46 Title VII cases, an average of 
approximately 6 cases per year. In contrast, the prior Administration 
filed 34 cases in its first two years in office alone, and 92 in all, 
for an average of more 11 cases per year.
    Furthermore, upon examining the types of cases prosecuted by the 
Department, an even more disturbing fact is revealed, the failure of 
the Department to bring suits that allege discrimination against 
African-Americans. According to CRS statistics from May 2007, there 
were 32 Title VII cases brought by the Bush Administration. Of those, 9 
were pattern or practice cases, 5 of which raised allegations of race 
discrimination but only one case--1 case--involved discrimination 
against African Americans. In contrast, the Clinton Administration 
filed 13 pattern or practice cases, 8 of which involved racial 
discrimination.
    The record is not much better when it comes to the subject of 
voting rights enforcement. After six years, the Bush Administration has 
brought fewer Section 2 cases, and brought them at a significantly 
lower rate, than any other administration since 1982.
    The Voting Section filed a total of 33 involving vote dilution and/
or other types of Section 2 claims during the 77 months of the Reagan 
Administration that followed the 1982 amendment of Section 2. Eight (8) 
were filed during the 48 months of the first Bush Administration and 34 
were filed during the 96 months of the Clinton Administration. To date, 
only 11 have been filed so far during the present Bush Administration.
    Additionally, Mr. Chairman, most of the Department's major voting-
related actions during this Administration have been beneficial to the 
Republican Party, including two in Georgia, one in Mississippi and the 
infamous redistricting plan in Texas, which the Supreme Court struck 
down in part. For years we have heard stories of current and former 
lawyers in the Civil Rights Division alleging that political appointees 
continually overruled their decisions and exerted undue political 
influence over voting rights cases. Indeed, one-third of the Civil 
Rights Division lawyers have left the department and the remaining 
lawyers have been barred from making recommendations in major voting 
rights cases.
    Mr. Chairman, the Justice Department's recent record is deplorable 
when it comes to enforcement of the federal criminal civil rights law. 
According to an analysis of Justice Department data by the Seattle 
Post-Intelligencer, civil rights enforcement no longer appears to be a 
top departmental priority. An analysis of the data reveals that, 
between 2001 and 2005, the number of federal investigations targeting 
abusive police officers declined by 66 percent and investigations of 
cross-burners and other purveyors of hate declined by 60 percent.
    It appears that this downward trend accelerated after the tragic 
events of 9/11. While there has been a slight increase in enforcement 
related to human trafficking, which is classified under civil rights, 
not enough has been done to stop the overall slide.
    I am very troubled by this trend. Hate-crimes are too dangerous to 
ignore, and there is social value in effective federal review of police 
misconduct. There has been an increase in hate crimes recently, 
especially with the placement of nooses in public places to instill 
fear in the hearts and minds of many Americans.
    I am also troubled by the recent ``Jena Six'' case where six black 
youths attending Jena High School in Jena, Louisiana were arrested and 
some were initially prosecuted as adults in response to several fights 
that ensued following white students' hanging a noose on school 
grounds. Although black students were arrested and jailed, no white 
students were ever arrested in connection with the incidents. As you 
will recall, I worked tirelessly with civil rights activists such as 
Reverend Jesse Jackson and Reverend Al Sharpton to ensure that the 
Department play its role in ensuring that Justice is wrought. I implore 
the Attorney General to continue to conduct an investigation into this 
matter and to make the Department's findings a matter of public record. 
Since the Jena 6 incident, there have been numerous high profile 
incidents of noose hangings, including one found in a black Coast 
Guard's bag, one on a Maryland college campus, and on the office door 
of a black professor at Columbia University in New York, just to name a 
few. Equally astonishing is the fact that there is no federal 
application of hate crimes law to noose hangings. I am anxious to hear 
the Attorney General's responses to these serious problems.

            TEXAS JUVENILE AND OTHER CORRECTIONS FACILITIES

    Mr. Chairman, another area of concern that I wish to discuss 
concern the care and protection of juvenile offenders in state 
correctional facilities and the care and safety of those being held in 
custody in county and municipal jails in Texas and around the country.
    In my home state of Texas, certain administrators and officials, 
past and maybe current, of the Texas Youth Commission (TYC) have 
obviously neglected their duties. According to published reports and 
investigations, several TYC administrators abused their authority by 
pulling young boys out of their dorm rooms and classrooms and sexually 
molesting them. The allegations of abuse have been a matter of public 
record since 2000. In 2005, an investigation conducted by the Texas 
Rangers revealed that employees of the juvenile facility in Pyote, 
Texas, had repeated sexual contact with juvenile inmates.
    Additionally, several members of the TYC board, who are responsible 
for the oversight of TYC facilities, admit that they were aware of the 
finding in the report prepared by Texas Rangers but took no corrective 
action. The current scandal surrounding TYC is scandalous and 
outrageous; quite frankly it sickens me. The situation within the TYC 
disregards every notion of justice and will contribute to the rise of 
recidivism rates if it is not arrested immediately.
    Let me turn to another horrifying area of inmate abuse. Between 
January 2001 and January 2006, at least 101 persons, an average of 
about 17 a year, have died while in the custody of the Harris County 
Jail, located in Houston, Texas. In 2006 alone there were 22 deaths. I 
find it especially disturbing that of the 101 deaths, at least 72 of 
the inmates were awaiting court hearings and had yet to be convicted of 
the crimes for which they were taken into custody.
    In our system every accused person is entitled to life, liberty, 
and the pursuit of happiness, and a presumption of innocence. These 72 
individuals, however, were deprived of their life without the due 
process guaranteed by the Constitution. They will not ever receive 
their day in court to be judged by their peers because of the 
irresponsibility, incompetence, indifference, and perhaps the criminal 
neglect, of the jail officials to whose care they were entrusted.
    I believe the situation in the Harris County Jail System requires 
national attention. When it is alleged that inmates are sleeping on the 
floor next to toilets and denied basic medical care, something must be 
done. The conditions at these jails border on cruel and unusual 
punishment. Should fault or wrongdoing be found, the persons 
responsible should be held accountable. Seeing that such authorities 
are held accountable is ultimately the responsibility of the United 
States Department of Justice. I am interested to hear the Attorney 
General's views on these matters.

                         U.S. ATTORNEY FIRINGS

    Mr. Chairman, I would also like to discuss the issue of the on-
going investigation into the U.S. attorney firings in 2006. We have 
found that it is rare for a United States Attorney to prematurely end 
his or her four-year term of appointment. According to the 
Congressional Research Service, only 54 United States Attorneys between 
1981 and 2006 did not complete their four-year terms. It has now been 
confirmed that at least eight United States Attorneys were asked to 
leave the Department in December 2006.
    On March 6, 2007, the Subcommittee on Commercial and Administrative 
Law held a hearing entitled, ``H.R. 580, Restoring Checks and Balances 
in the Confirmation Process of United States Attorneys.'' Witnesses at 
the hearing included six of the eight former United States Attorneys 
and William Moschella, Principal Associate Deputy Attorney General, 
among other witnesses.
    Six former United States Attorneys testified that he or she was not 
told in advance why he or she was being asked to resign. Upon further 
inquiry, however, several of the terminated U.S. attorneys were advised 
by the then Acting Assistant Attorney General William Mercer that they 
were terminated essentially to make way for other Republicans to 
enhance their credential and pad their resumes.
    It is now clear that the manifest intention of the proponents of 
the provision in the USA PATRIOT ACT Reauthorization regarding the 
appointment of interim U.S. Attorneys was to allow interim appointees 
to serve indefinitely and to circumvent Senate confirmation.
    We now know that after gaining this increased authority to appoint 
interim U.S. Attorneys indefinitely, the Administration has exploited 
the provision to fire U.S. Attorneys for political reasons. A mass 
purge of this sort is unprecedented in recent history. The Department 
of Justice and the White House coordinated this purge. The purge was 
conducted based in large part on whether the U.S. Attorney 
``exhibit[ed] loyalty to the President and Attorney General.''
    Mr. Chairman, the office of the United States Attorney 
traditionally operated with an unusual level of independence from the 
Justice Department in a broad range of daily activities. The practice 
that was in place for less than two years needed to end. That is why I 
was proud to have voted for its repeal and the restoration of the 
status quo ante. Mr. Attorney General, I welcome your views on the 
investigation into the US attorney firings and your views on the 
Department's political independence from the Administration.

                 DESTRUCTION OF CIA INTERROGATION TAPES

    Mr. Chairman, I am extremely concerned by the recent revelation 
that tapes of CIA interrogations have been destroyed, and the reports 
this week that the CIA has engaged in the practice of waterboarding.
    There are media reports that at least four top White House lawyers 
were involved in the discussions within the CIA about the destruction 
of these tapes, which depict the interrogation of prisoners by U.S. 
intelligence agents, raise crucial questions about possible 
criminality, violation of federal laws and international treaties, and 
obstruction of justice. I am extremely concerned by the implications of 
these criminal allegations, as well as our oversight responsibilities, 
as a Congress, to properly investigate this case and to ensure that 
similar events do not occur in the future.
    In early December, media reports indicated that, in 2005, the CIA 
destroyed at least two videotapes. The tapes in question are known to 
have documented the interrogation of two senior al-Qaeda operatives in 
CIA custody. According to reports, the tapes showed CIA agents 
subjecting terrorism suspects to severe interrogation techniques, 
including the controversial practice of waterboarding. After the 
destruction of the tapes was revealed, CIA director General Michael 
Hayden stated that the decision to destroy them was made ``within the 
CIA,'' to protect the safety of undercover officers. According to 
current and former intelligence officials, the decision is ultimately 
attributable to Jose Rodriguez, Jr., who was head of the Directorate of 
Operations.
    Mr. Chairman, the 2005 destruction of these tapes came in the midst 
of Congressional scrutiny of the CIA's detention and interrogation 
programs. This raises significant concerns about whether the CIA 
withheld information from Congress, as well as other entities including 
the federal courts and the September 11th Commission. It has been 
suggested that the tapes were destroyed in order to eliminate evidence 
of potentially criminal activity. In light of the controversy, the 
Department of Justice initiated an investigation, and, on December 
14th, moved to delay Congressional inquiries into the CIA's destruction 
of the tapes, stating that such a parallel investigation would 
jeopardize the Department's efforts to investigate the issue.
    Mr. Chairman, the Department of Justice itself, having offered 
legal advice relating to the destruction of the tapes, could be 
implicated in this investigation. In addition, at least four top White 
House lawyers--Alberto Gonzales, David S. Addington, John Bellinger 
III, and Harriet Miers--were involved in discussions regarding the 
tapes in question. The destruction of the tapes has raised concerns 
about both the possibility that the tapes documented unlawful conduct 
and that their destruction was itself unlawful.
    Mr. Chairman, since 9/11, this Administration has consistently 
questioned the applicability of the Geneva Conventions and the 
Convention Against Torture to the war on al-Qaeda. While I certainly 
believe in the necessity of protecting the United States from potential 
future terrorist attacks, I firmly believe that these international 
conventions and agreements are not optional; they can not be applied 
only when it is convenient for the Bush Administration. If the United 
States is to truly be a leader in promoting human rights and the rule 
of law, it must apply these standards to its own policies and 
practices.
    In the Supreme Court case Hamdan v. Rumsfeld, the Court held that 
Article 3 of the Geneva Conventions does apply to the conflict with al-
Qaeda, contrary to numerous assertions to the contrary made by the Bush 
Administration. The United States has long-since ratified all four 
Geneva Conventions, all of which contain Article 3, which prohibits, 
among other things, ``cruel treatment and torture,'' ``outrages upon 
personal dignity,'' and ``humiliating and degrading treatment'' of 
prisoners or civilians during armed conflict. Either we must apply the 
same standards to our own conduct, or else risk the likelihood that 
other nations will not adhere to these standards when detaining and 
interrogating our citizens.
    Mr. Chairman, all detainees must be treated in accordance with 
international law as well as the U.S. Constitution, under which we all 
serve. The United States must not make those practices, long the staple 
of abhorred foreign dictators, part of its own interrogation arsenal. 
While torture is expressly prohibited by international and domestic 
law, the Administration has consistently sought to circumvent such 
restrictions, citing the necessity of the situation and seeking to 
narrowly define torture.
    In addition to possible illegal conduct portrayed on the tapes, the 
destruction of the tapes has raised separate legal concerns. Title 18, 
United States Code, Section 1512 (c)(1) and (2) establishes the 
illegality of tampering with a record ``with the intent to impair the 
object's integrity or availability to use in an official proceeding.'' 
The official proceeding need not be actually pending at the time of the 
acts of obstruction, though it must be foreseeable.
    Mr. Chairman, I believe it is our responsibility, as the 
representatives of the American people, the guardians of the 
Constitution, and the bastion of America's civil liberties, to be 
unwavering in our commitment to preserving the rights of the American 
people and American way of life. I firmly believe that acts of torture 
represent a grave breach of American values.

  ENFORCEMENT OF U.S. FEDERAL LAWS TO PROTECT U.S. CONTRACTORS IN IRAQ

    In December 2007, the Crime Subcommittee held a hearing in December 
on the enforcement of U.S. federal criminal laws to protect U.S. 
contractors in Iraq. The hearing was held to address the rape of Jamie 
Leigh Jones by U.S. contractors employed by KBR/Haliburton. The 
Department sent no witnesses to the hearing because it indicated that 
it was investigating the matter and has failed to respond to several 
letters issued by the Committee in January.
    Jamie Leigh Jones, from my hometown of Houston, Texas, testified 
that in July 2005, she was approximately 20 years old, and was on a 
contract assignment in Iraq for KBR/Haliburton, when her fellow male 
contractors drugged, imprisoned, and repeatedly gang-raped her.
    The Department has brought no criminal action against the alleged 
assailants. Despite claims to the contrary Title 18, Part I, Chapter 1, 
Section 7, of the United States Code, entitled ``Special maritime and 
territorial jurisdiction of the United States defined,'' the United 
States has jurisdiction over the following: ``any place outside the 
jurisdiction of any nation with respect to an offense by or against a 
national of the United States'' does allow for the Department to 
prosecute Ms. Jones's alleged assailants.
    Mr. Chairman, I call for a complete and entirely transparent 
investigation into the recent discovery of the destruction of the CIA 
tapes, and we must fully investigate all incidents of suspected torture 
by U.S. officials and agents.

              FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA)

    Chairman, this year this Committee examined legislation that was 
intended to fill a gap in the Nation's intelligence gathering 
capabilities identified by the Director of National Intelligence Mike 
McConnell, by amending the Foreign Intelligence Surveillance Act, FISA. 
But in reality it eviscerates the Fourth Amendment of the Constitution 
and represents an unwarranted transfer of power from the courts to the 
Executive Branch and the Attorney General.
    I am aware of the delicate balance that the Department must tread 
in protecting homeland security and in affording Americans their full 
and unfettered rights under the Bill of Rights. The original law 
protected the civil liberties of all Americans while also granting the 
President the tools needed to conduct an aggressive campaign against 
terror. FISA does not make American any safer--rather it allows the 
Government to pursue an enormous and untargeted collection of 
international communications without court order or meaningful 
oversight by either Congress or the courts. As such the recent 
legislation requesting an extension of FISA is an affront to our values 
and consequently, the bill must be allowed to die rather than be 
extended for one more day. These revisions of FISA legislation should 
not be supported for several reasons.
    First, it allows the Attorney General to issue program warrants in 
international calls without court review. This removes the FISA court, 
which has overseen the process for 30 years and instead places the 
Attorney General in charge of determining the legitimacy of 
surveillance.
    Secondly, it includes no provisions to prevent ``reverse 
targeting,'' the practice whereby surveillance is conducted on a 
foreign person to hear their conversations with person in the United 
States who is the actual target. Under the FISA amendments, these 
conversations can be heard, recorded and stored without warrant.
    Lastly, the FISA amendment reduces the oversight capabilities of 
Congress by requiring the Attorney General to provide Congress only the 
information the Justice Department sees fit to report. This removes an 
important check upon America's surveillance program.
    Because I recognize that there is a delicate balance between 
legitimate intelligence needs and the civil rights of American 
citizens, I was proud to support the RESTORE Act, passed by this House 
in mid-2007. Mr. Chairman the Jackson-Lee Amendment added during the 
markup made a constructive addition to the RESTORE Act by laying down a 
clear, objective criterion for the Administration to follow and the 
FISA court to enforce in preventing ``reverse targeting.'' ``Reverse 
targeting'' is the practice where the government targets foreigners 
without a warrant while its actual purpose is to collect information on 
certain U.S. persons. I introduced the Jackson-Lee Amendment to 
eliminate the reverse targeting by requiring the Administration to 
obtain a regular, individualized FISA warrant whenever the ``real'' 
target of the surveillance is a person in the United States. It is 
imperative that the rights enshrined in the Bill of Rights be given 
effect. Mr. Attorney General, I welcome your comments on this issue.

                      THE 2009 FISCAL YEAR BUDGET

    Mr. Chairman, the third and final area I wish to discuss concern 
the reductions in the 2009 fiscal year budget. A review of the 
Administration's FY 2009 budget reveals drastic cuts to state and local 
law enforcement. The Administration has requested a total of $404 
million where Congress last year appropriated over $1.7 billion 
dollars. This is particularly distressing given that violent crime 
increased in 2005 and 2006 for the first time in a decade, which many 
believe are a consequence of similar cuts the President proposed in the 
past. President Bush's budget eliminates critical anti-crime and anti-
terrorism funding for local law enforcement. The Bush budget cuts $137 
million from aid to states and localities for bioterrorism 
preparedness. Additionally, President Bush did not ask for any funding 
for the Edward Byrne Memorial Justice Assistance Grant program, nor for 
the Clinton-era Community Oriented Policing Services (COPS) program, 
among others. The Byrne program received $175 million in fiscal 2008; 
COPS received $251 million. These cuts will further erode the ability 
of state and local government to fight crime at a time when states are 
dealing with budget crises. Prevention and control of crime is critical 
to ensuring the strength and vitality of our Nation.
    I am interested to hear the Attorney General's views on these 
matters. Again, thank you Mr. Chairman for holding this hearing. I 
yield the remainder of my time.

                                

 Prepared Statement of the Honorable Darrell Issa, a Representative in 
  Congress from the State of California, and Member, Committee on the 
                               Judiciary

    Thank you, Mr. Chairman. I appreciate this opportunity to hear from 
Attorney General Michael Mukasey regarding his vision for the 
Department of Justice and the state of the Department which he 
inherited.
    I frequently took opportunities such as this hearing to question 
Attorney General Mukasey's predecessors on the need for increased 
prosecution of human smugglers and other criminal aliens. I have 
encouraged the President, multiple attorney generals, and the U.S. 
Attorney for the Southern District of California for years to prosecute 
more ``coyotes'' and criminal aliens. I have also sought and won 
appropriations specifically for this purpose.
    I am heartened to read in Attorney General Mukasey's testimony that 
the President's budget includes $7,000,000 for this purpose, and that 
these funds will be used in part to fund 40 additional U.S. Attorneys 
in border districts. ``Coyotes'' and other criminal aliens are some of 
the most dangerous individuals in the United States, and it is terribly 
important to confront them head on.
    I look forward to hearing from Attorney General Mukasey on how the 
Department of Justice will continue down the path of increased criminal 
alien related prosecutions under his lead, as well as the myriad of 
other issues within the Department's jurisdiction.

                                

 Prepared Statement of the Honorable Steve Cohen, a Representative in 
  Congress from the State of Tennessee, and Member, Committee on the 
                               Judiciary

    The last year has brought to light numerous abuses at the 
Department of Justice (DOJ). From the suspicious terminations of nine 
U.S. Attorneys to evidence of possibly politically motivated 
prosecutions, the politicization of the hiring process for career DOJ 
attorneys, the sharp decline in civil rights enforcement, and the 
revelation of the existence of secret legal memoranda justifying the 
use of torture, the DOJ reached a low point in its history and ended 
2007 with its reputation for professionalism and integrity tarnished. 
With a change in the leadership of the DOJ, I hoped that these abuses 
would be properly addressed.
    I am appreciative of Attorney General Michael Mukasey's stated 
intention to establish a more cooperative relationship between the DOJ 
and Congress. I also recognize that he has taken some positive steps 
towards reducing the risk of politicization of federal law enforcement, 
including instituting guidelines that limit contact between DOJ and 
White House officials concerning ongoing Prepared Statement of the 
Honorable Steve Cohen, a Representative in Congress from the State of 
Tennessee, and Member, Committee on the Judiciarycivil and criminal 
investigations. Nonetheless, many questions remain concerning the DOJ's 
role in justifying the use of harsh interrogation techniques that I 
believe amount to torture, its continued defense of overweening 
executive authority, and its level of cooperation with ongoing 
Congressional and internal investigations of its conduct. I call upon 
Attorney General Mukasey to be forthcoming on these issues.

                                

 Letters dated February 7, 2008, from the Honorable Sheila Jackson Lee 
  to the Honorable Michael B. Mukasey, Attorney General of the United 
                                 States












                                

 H.R. 4545, ``A bill to target cocaine kingpins and address sentencing 
              disparity between crack and powder cocaine''
















































                                

Letter dated January 31, 2008, from the Honorable John Conyers, Jr. to 
the Honorable Michael B. Mukasey, Attorney General of the United States









                                

 Post-Hearing Questions posed by the Honorable John Conyers, Jr., the 
 Honorable Robert C. ``Bobby'' Scott, the Honorable Linda T. Sanchez, 
the Honorable Keith Ellison, and the Honorable Robert Goodlatte to the 
  Honorable Michael B. Mukasey, Attorney General of the United States



















































































                                

   Letter dated June 2, 2008, from Keith B. Nelson, Principal Deputy 
    Assistant Attorney General, Office of Legislative Affairs, U.S. 
Department of Justice, providing documents in response to post-hearing 
     questions posed by the Honorable Robert C. ``Bobby'' Scott \1\




--------
Note: Due to its volume, the document production is not printed in the 
hearing record but is on file with the House Committee on the Judiciary

                                

           Answers to Post-Hearing Questions provided by the 
            U.S. Department of Justice, dated July 16, 2008

































































                                

           Answers to Post-Hearing Questions provided by the 
            U.S. Department of Justice, dated July 18, 2008

























































                                 
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