[Senate Hearing 110-640]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-640
 
 CONFIRMATION HEARING ON THE NOMINATION OF MARK R. FILIP TO BE DEPUTY 
                            ATTORNEY GENERAL

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                           DECEMBER 19, 2007

                               __________

                          Serial No. J-110-71

                               __________

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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
           Stephanie A. Middleton, Republican Staff Director
              Nicholas A. Rossi, Republican Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   137
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     4

                               PRESENTERS

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois presenting Mark R. Filip, of Illinois, Nominee to be 
  Deputy Attorney General, Department of Justice.................    61
Kirk, Mark Steven, a U.S. Representative from the State of 
  Illinois presenting Mark R. Filip, of Illinois, Nominee to be 
  Deputy Attorney General, Department of Justice.................     7

                        STATEMENT OF THE NOMINEE

Filip, Mark R., of Illinois, Nominee to be Deputy Attorney 
  General, Department of Justice.................................     9
    Questionnaire................................................    11

                         QUESTIONS AND ANSWERS

Responses of Mark R. Filip to questions submitted by Senators 
  Durbin and Kennedy.............................................    79

                       SUBMISSIONS FOR THE RECORD

chicagotribune.com, December 18, 2007, editorial.................   132
Kirk, Mark Steven, a U.S. Representative from the State of 
  Illinois presenting Mark R. Filip, of Illinois, Nominee to be 
  Deputy Attorney General, Department of Justice.................   134
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  October 25, 2007, letter to Mr. Fielding.......................   140
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont 
  and Hon. Arlen Specter, a U.S. Senator from the State of 
  Pennsylvania, December 10, 2007 letter to Attorney General 
  Mukasey and his response.......................................   143
Specific investigations by Congress over DOJ on pending matters..   147
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania, December 17, 2007, letter to Judge Filip.........   149
Taylor, Loren R., President & CEO, University of Illinois Alumni 
  Association, Urbana, Illinois, letter..........................   151
Wainstein, Kenneth L., Assistant Attorney General, National 
  Security Division, Department of Justice, letter...............   152
washingtonpost.com, December 19, 2007, editorial.................   153


    NOMINATION OF MARK R. FILIP, OF ILLINOIS, TO BE DEPUTY ATTORNEY 
                     GENERAL, DEPARTMENT OF JUSTICE

                              ----------                              


                      WEDNESDAY, DECEMBER 19, 2007

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, Pursuant to notice, at 10:11 a.m., in 
room 226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Kennedy, Durbin, Cardin, Whitehouse, 
Specter, Hatch, and Sessions.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Good morning, and I appreciate everybody 
being here. I am sorry to say I am a little bit late, and it is 
my fault. Everybody else, Senator Kennedy, Senator Cardin, 
Senator Specter, and Senator Hatch, were already here. We were 
running a tad late last night, but I apologize to you. But we 
also had a chance, several of us, to meet the judge and his 
wonderful family.
    The reason this position is so important and I wanted to be 
here is that in the absence of the Attorney General, of course, 
as we all know, the Deputy acts as the Attorney General, and we 
have to restore the Department's independence and credibility 
that has been deterred by some in the administration, 
unfortunately.
    The administration has known since at least May 14 of this 
year, when Mr. McNulty announced that he was resigning, and 
should have known for weeks before, that there was going to be 
a vacancy in the position we are going to fill.
    I welcome Senator Whitehouse here, too.
    But even after the former Deputy announced his resignation 
and resigned months later, I had hoped that the administration 
would work with the Senate to fill this position. They did not.
    Now, Paul McNulty was one of many high-ranking Department 
officials, along with former Attorney General Gonzales, who 
resigned during the Committee's investigation into the firing 
of well-performing United States Attorneys who were fired for 
apparently partisan and political reasons. Those firings and 
our investigation point to political operatives from the White 
House interfering with and corrupting the Department's law 
enforcement functions for partisan and political purposes. So 
the nomination of Judge Filip comes during a crisis of 
leadership that has done more than take a heavy toll on the 
Department's morale and tradition of independence--a morale and 
tradition of independence, I might say, that has always in my 
experience existed with both Republican and Democratic 
administrations. But because of what happened, it has shaken 
the confidence of the American people and the Congress that the 
Department will uphold the bedrock principle--deeply embedded 
in our laws and our values--that no one, not even the 
President, is above the law.
    I announced that we would hold this hearing today, before 
Congress adjourns for the year immediately upon receiving this 
nomination from the White House and the necessary background 
materials and would move as expeditiously as possible. We will 
want to know whether this appointment will help restore the 
independence of the Department of Justice and strengthen the 
rule of law.
    Before we came in here, when I was a young law student I 
was recruited by a former Attorney General who told me how the 
Criminal Division and the various Divisions are kept free of 
any interference from the White House, and he would not allow 
any interference from the White House. And I fully believed 
him. I wanted to go back home to Vermont to practice, so I 
declined the invitation from then-Attorney General Robert 
Kennedy.
    But every time we seem to reach a new low in this 
administration's flaunting of the rule of law and 
constitutional limits on executive power, we learn some 
startling new revelations about the extent to which some will 
go to avoid accountability and undermine oversight and 
stonewall the truth.
    Two weeks ago, we learned that the CIA destroyed videotapes 
of detainee interrogations. Just this morning, in a regrettably 
familiar pattern, we learned that the involvement of senior 
administration officials seems to have been much more 
significant than it appeared from their initial denials. The 
revelations are leading to additional investigations by 
Congress and the courts and have raised questions by both 
Republicans and Democrats in the House and the Senate.
    Now, as the Ranking Member of this Committee from 2001 
through 2006, I was not informed of the existence of the 
videotapes or of their destruction. I do not believe the 
Republican Chairmen at that time were either. I have repeatedly 
sought information about the administration's interrogations of 
detainees, including during the consideration of the Mukasey 
nomination to be Attorney General and in my October 25, 2007, 
letter to the White House counsel. And, without objection, 
those will be made part of the record.
    Early last week I sent a bipartisan letter with Senator 
Specter to the Attorney General seeking information about the 
involvement of the Department of Justice with those matters 
before the public revelation of the tapes' destruction and how 
the Attorney General intended to determine whether to appoint a 
special counsel to conduct the investigation and potential 
prosecutions for obstruction of justice and obstruction of 
Congress. Regrettably, the reply we received evidences none of 
the commitment to work with this Committee that we heard during 
the Attorney General's recent confirmation hearing. The 
response actually showed no appreciation for the oversight role 
of the Congress, and, without objection, those letters will be 
made part of the record.
    Since then I have seen that the Department has also 
demanded that the Intelligence Committees of the Congress cease 
their independent investigations announced by Democrats and 
Republicans and that the courts not proceed to determine 
whether this administration has violated court orders or been 
less than candid in court proceedings. They told the courts, 
don't inquire about this, told the Congress not to inquire 
about this. Well, that does not restore the Department's 
credibility. It appears to be an effort to prevent 
accountability and undermine checks and balances.
    U.S. District Judge Henry Kennedy yesterday rejected the 
administration's demands, ordering the administration to appear 
in court this week to determine whether it violated a court 
order, the 2005 order that it was to preserve all evidence.
    Now, Senator Specter and I are former prosecutors. There 
are other former prosecutors on this Committee in both parties. 
We were not asking the Attorney General to prejudice a criminal 
investigation. We were not asking to intervene in it. Rather, 
we and this Committee have constitutional responsibilities we 
need to fulfill. I think those duties are entitled to respect, 
as well.
    My fear is that the pattern of unaccountability and excuse 
will continue. The administration has shown a proclivity to 
paper over misconduct with legal opinions from the Department 
of Justice. We know about the infamous withdrawn Bybee memo on 
torture. It turned out to be wrong.
    In the words of Jack Goldsmith, a former head of the Office 
of Legal Counsel, who discovered this legal mess of extreme 
opinion, they have an ``unusual lack of care and sobriety in 
their legal analysis,'' they rest on ``cursory and one-sided 
legal arguments that failed to consider Congress' competing 
wartime constitutional authorities, or the many Supreme Court 
decisions potentially in tension,'' and ``could be interpreted 
as if they were designed to confer immunity for bad acts.'' 
That was from a conservative Republican.
    As we recently learned not from the administration but from 
the New York Times, where we get most of our information when 
the--fortunately, there are some in the administration who 
continue to leak to the press and give them the information the 
administration will not give to the proper committees in 
Congress.
    The Department of Justice, soon after the last Attorney 
General--not the current one but the former one--took over, the 
Department of Justice secretly endorsed and reinstated 
combinations of the harshest interrogation tactics as legal. 
They apparently gave legal approval to brutal interrogation 
techniques, including waterboarding. Former Deputy Attorney 
General James Comey predicted that the Department would end up 
being ``ashamed'' of such actions when the public learned of 
them. Boy, was he right.
    Now, whether Judge Mark Filip will follow the example of 
integrity and independence of others like Elliot Richardson and 
William Ruckelshaus, who resigned or were fired rather than 
interfere with the investigation of wrongdoing of the Nixon 
administration, is a critical question. Law enforcement 
officials have to enforce the law without fear or favor from 
whoever is in the White House, whether it is a Democratic 
President or a Republican President. And we have been reminded 
all too recently by the Gonzales Justice Department what 
happens when the rule of law plays second fiddle to a 
President's policy agenda or the partisan desires of political 
operatives.
    I want to be confident that this Deputy Attorney General 
will be independent in enforcing the rule of law on crucial 
issues like the destruction of the CIA tapes and the legal 
cover given to torture. A newly independent Justice Department 
has to reexamine these issues. I want to be assured that he 
does not envision a system where a President's overbroad and 
invalid claims of executive privilege cannot be tested in a 
court of law.
    I hope that he reassures us he understands that the duty of 
the Deputy Attorney General is to uphold the Constitution and 
the rule of law--not to work to circumvent it. Both the 
President and our great Nation are best served by a Justice 
Department that provides sound advice and takes responsible 
action, without regard to political considerations--not one 
that develops legalistic loopholes to serve the ends of a 
particular administration.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    I yield to the distinguished Ranking Member, and then we 
will hear from Congressman Kirk, who is from the judge's 
congressional district.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. There is no doubt that the Department of 
Justice is an agency of great importance to the United States, 
second only to the Department of Defense. And there is no doubt 
that there is an urgent need to have that office reorganized 
from what has been the practice for the past several years.
    I am pleased to see the President submit the name of Judge 
Mark Filip to this Committee. He comes to this Committee with 
an extraordinary record: magna cum laude--summa cum laude from 
the University of Illinois; Phi Beta Kappa; Harvard Law School 
magna cum laude; Harvard Law Review, and Oxford scholar. So 
there is no doubt with that academic background and his 
professional qualities including a long stint as an Assistant 
U.S. Attorney, he is very well qualified.
    The focus of my inquiries will be on Judge Filip's 
recognition of the role of Congress on oversight and his 
commitment to follow the rules and permit Congress to exercise 
its constitutional authority.
    The backbone of this country is separation of powers, and, 
regrettably, Congress has not been effective in oversight 
because of the response of the executive branch. The Terrorist 
Surveillance Program was in existence for 5 years before the 
disclosure was made--not by the Department but by the New York 
Times.
    And notwithstanding very strenuous efforts to find out 
about that program, it took months to find anything with the 
administration flatly violating the law in failing to inform 
the Intelligence Committees, as they were obligated to do, 
about the existence of the program, and in failing to follow 
the time-honored practice of notifying the Chairmen and Ranking 
Members of the Judiciary Committees.
    Finally, the Intelligence Committees were told about it. We 
still are not sure they were told all about it. We are still 
not sure that the Chairman and Ranking Member of Judiciary have 
been told all about it. But they were told only in the face of 
the confirmation of General Hayden to be CIA Director, and it 
was only under that pressure that they made the disclosure.
    And then we have the Executive expansion on so-called 
signing statements, where the Executive cherry picks the 
provisions of law that they will agree to follow. The 
Constitution is explicit. Congress submits legislation to the 
President, and he signs it or vetoes it. But we have had a 
practice now of signing statements on cherry picking and in a 
context of very specific negotiations where this Committee, in 
passing the PATRIOT Act giving the executive branch extensive 
new authority did so because of the need to fight terrorism.
    And there is agreement that additional powers are needed by 
the executive branch under the PATRIOT Act and on the issue of 
electronic surveillance and legislation now pending before the 
Congress. But when we negotiate specific oversight, then the 
President says he may not have to follow that because of his 
Article II powers.
    On the celebrated negotiations between the President and 
Senator McCain on the torture issue, the Senate voted 90-9. 
Again, when the signing statement comes, the President has some 
limitations. There may be Article II powers, he says, where he 
will not have to follow that.
    And then we have had the--only the courts really have been 
able to exercise oversight. The Congress has not done it on 
detention and Guantanamo, and only the Supreme Court in the 
Rasul case has limited the executive sweep of power. And those 
issues are now pending before the Supreme Court of the United 
States again. And the President follows the mandates of the 
Supreme Court. There is really no other choice. But the 
executive branch has not followed the law on the express 
statutory provisions that I have referred to.
    And we are now locked again in a very tough battle on the 
revision of the Foreign Intelligence Surveillance Act with what 
the telephone companies are doing. And Congress has been asked 
to grant retroactive immunity to the telephone companies in a 
context where we have never been sure exactly what we are being 
asked to grant immunity from. And I believe the telephone 
companies have been good citizens, and I do not believe they 
ought to be on the spot.
    But there is litigation pending in the courts, and the only 
effective oversight has been provided by the courts. And that 
is why I am unwilling to give my vote for retroactive immunity, 
but have suggested an alternative of having the Government 
substituted as a party defendant with the same defenses that 
the telephone companies would have.
    I have talked to Judge Filip earlier. I appreciated his 
coming by for a courtesy call, and I have written to him, as I 
write to every nominee for the Attorney General's job or the 
Deputy or subordinate but ranking officials. And these are the 
issues which I consider most important in this hearing. And I 
have made them explicit to Judge Filip so he knows what my 
focus of interest will be.
    But the law on the subject has been summarized by CRS, and 
it is as follows: A review of congressional investigations that 
have implicated Department of Justice investigations over the 
past 70 years demonstrates that the Department has been 
consistently obliged to submit to congressional oversight 
regardless of whether litigation is pending so that Congress is 
able to pursue its investigations. And that includes testimony 
of subordinate Department of Justice employees such as line 
attorneys and FBI field agents. Investigating committees have 
been provided with documents respecting open or closed cases.
    Now, Chairman Leahy has just referred to the efforts which 
we are making to try to find out about the CIA tapes, and in a 
rather peremptory manner, we have been advised by the Attorney 
General that we are not going to have an opportunity to do 
that, as he puts it, at least at this time.
    But the law is plain that Congress has preeminence and 
precedent over the Department of Justice on these 
investigations because the Congress is legislating for all 
matters, whereas the Department is dealing with criminal 
prosecutions in a specific matter. And the cases are 
overwhelming on it, running from the Palmer Raids to Teapot 
Dome, to the white-collar crimes in the oil industry, to Iran-
contra, Rocky Flats, Ruby Ridge, the campaign finance 
investigations, the U.S. Attorney removals, and border guard 
prosecutions, just to mention a few.
    In discussing this with the Attorney General, it is my hope 
we will find an accommodation. Congress does have preeminence, 
but if there is some sensitive matter, some witness who ought 
not to be called in an open hearing, we can accommodate to 
that. This Committee is filled with former--
    Chairman Leahy. And we have.
    Senator Specter. And we have. This Committee is filled with 
former prosecutors who have some knowledge of the issues. And 
when we are told, well, Congress fouled up Iran-contra with 
Colonel North and Admiral Poindexter, when you get involved in 
immunity, it is a very touchy subject.
    And sometimes U.S. Attorneys make mistakes on the grant of 
immunity, and that was a mistake. But it was much more 
important to expose what went on in Iran-contra and the 
violation of congressional law and the Boland amendment than it 
was on those prosecutions, important as they were.
    So I think it is really vital that this Committee and the 
Intelligence Committees keep pushing hard on congressional 
oversight, and I want to have flat assurances from Judge Filip 
that he understands what the law is and he will follow it.
    Thank you, Mr. Chairman.
    Chairman Leahy. Well, thank you very much.
    I understand Senator Cardin wanted to make a unanimous 
consent request.
    Senator Cardin. Thank you very much, Mr. Chairman. I would 
ask unanimous consent that a letter I received from Loren 
Taylor, who is the President and CEO of the University of 
Illinois Alumni Association, be made part of our record. I have 
known Loren Taylor for many years. I respect greatly his views 
and judgments. And it is a strong letter in support of Judge 
Filip, pointing out that he is masterful in building consensus 
and can be counted on to represent the association in a 
skillful, informed manner, which are certainly skills that are 
important for the Deputy Attorney General.
    I also should point out that his father-in-law is the 
Majority Leader of the House of Representatives, Congressman 
Steny Hoyer.
    I would ask unanimous consent that this be made part of the 
record.
    Chairman Leahy. I have a feeling that the judge would not 
in any way object to that being part of the record, and it will 
be part of the record.
    We also have Congressman Mark Kirk who is here. He has 
waited patiently, and if he has had the same lack of sleep this 
week as we have on this side--and, Congressman, I appreciate 
your coming over. It is very kind of you to take the time. We 
will put your full statement in the record, but please go ahead 
and say whatever you would like.

 PRESENTATION OF MARK R. FILIP, NOMINEE TO BE DEPUTY ATTORNEY 
  GENERAL, DEPARTMENT OF JUSTICE, BY HON. MARK STEVEN KIRK, A 
     REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS

    Representative Kirk. Thank you very much, Mr. Chairman. I 
want to give a word of thanks to your staff, Luke Albee, who 
was a classmate when I came to Washington.
    Judge Filip comes from my congressional district, also 
represented by Judge Mikva before me, and I am very happy to be 
here because he represents the tradition, unfortunately well 
needed in my city, of fighting public corruption. We are not 
only home to Al Capone, but also Elliot Ness, Patrick 
Fitzgerald now, and Judge Filip fits in that tradition of 
service in my community.
    I am also happy that Beth is here, his wife, with Matthew, 
Charlie, Tommy, and Joe. We are complying with the attendance 
laws of Illinois because their principal from Greeley School is 
also here in the audience.
    [Laughter.]
    Representative Kirk. I will note the Senate confirmed Judge 
Filip 96-0 on February 4, 2004, and it reflected his strong 
record as Phi Beta Kappa from the U of I, a Marshall scholar at 
Oxford, a magna cum laude graduate of the Harvard Law School, a 
clerk of the U.S. Court of Appeals for the D.C. Circuit and for 
Justice Scalia.
    It is because of his work against public corruption that we 
know him best. Mark worked as Assistant U.S. Attorney in 
Chicago prosecuting a group of corrupt Chicago police officers 
on charges of racketeering, bribery, narcotics trafficking, and 
extortion. He received the Justice Department's Director's 
Award for superior performance on this work.
    He also prosecuted a number of public corruption cases 
involving the appeal of a bribery case involving a Cook County 
criminal judge, involved with the El Rukn street gang, and a 
racketeering case involving corrupt Illinois Department of 
Transportation employees, and a corruption case involving 
several State and local officials. Judge Filip also 
participated in a major and complex heroin-trafficking case 
across the United States, Thailand, Nigeria, and the United 
Kingdom.
    He has performed a number of good works on the pro bono 
side, including work for communities who are seeking to notify 
people of convicted sex offenders within their boundaries, 
known as Megan's law, and is on the Board of Advisers for 
Catholic Charities of Chicago and is very active in his home 
parish in Winnetka.
    His nomination gives us great pride here. I note that 
Senator Durbin could not be here at the beginning of the 
hearing, but we all support him very greatly. He is one of our 
stars, especially on the public corruption side, and I 
wholeheartedly endorse him. And thank you for the opportunity, 
Mr. Chairman, of introducing him to you today.
    [The prepared statement of Representative Kirk appears as a 
submission for the record.]
    Chairman Leahy. Congressman, thank you very much.
    I also will tell Luke Albee, who is, of course, a dear 
friend, and thank you for coming by, and have a good Christmas. 
Enjoy your break.
    Judge, would you, while you are still standing, do you 
solemnly swear that the testimony you will give in this matter 
will be the truth, the whole truth, and nothing but the truth, 
so help you God?
    Judge Filip. I do.
    Chairman Leahy. Thank you.
    Judge, before you begin any opening statement, would you 
introduce for the record your family and anybody else you wish 
to here, because someday when somebody digs out the Filip 
archives, it will be nice that they can see their names there. 
We will also make sure with the recorder that the names are all 
spelled correctly. But would you do that, please?
    Judge Filip. Thank you very much, sir. I would be very 
proud to.
    My wife, Beth, is sitting right there. I had the great 
fortune to meet my wife when she was very young and much too 
young to realize that she could do infinitely better in life 
than me. And so I did not give her a chance to figure things 
out better than that. She has been my partner in life for many 
years, and I couldn't ask for a better spouse. She has made 
enormous sacrifices on my behalf, and I probably shouldn't go 
any further because, like a lot of Italian-American men, I will 
just get emotional. So I am very, very grateful to have her as 
a partner.
    Chairman Leahy. We Italian-American men know what that is 
like.
    [Laughter.]
    Judge Filip. So I am very, very fortunate to have her as a 
spouse and as a partner in life.
    To my left here, four sons: Tommy Filip, who is age 7; 
Charlie Filip, who is age 9; Joe Filip, who is age 5, and 
coloring actively; and Matthew Filip, who is age 11. They are 
great kids, and Beth and I are very, very proud of them.
    My in-laws, Terry and Carol Moritz, are here from Illinois, 
and I am very grateful they have put up with me for over 20 
years, and they are wonderful grandparents.
    My Mom and Dad couldn't be here, but they are back home in 
Chicago listening, and I would like to say hello to them.
    Then also I am very flattered and very honored to have a 
tremendous number of friends and neighbors here, mostly from 
Illinois. I think their kids pushed them to come because they 
wanted to roll it into an extended vacation before Christmas. 
But the principal of the school is here, Susan Hugebeck. So 
there has got to be some legitimacy to them being here, and I 
am very, very honored and very flattered that they would come. 
And thank you very much for giving me the chance to introduce 
them.
    Chairman Leahy. Well, thank you. Thank you very much, and I 
had the privilege of meeting your wife and your four children 
before. You have a wonderful family. And so please go ahead 
with your opening statement.

   STATEMENT OF MARK R. FILIP, NOMINEE TO BE DEPUTY ATTORNEY 
                 GENERAL, DEPARTMENT OF JUSTICE

    Judge Filip. Thank you very much, sir.
    Mr. Chairman, it is a privilege to be here this morning to 
be considered for the position of Deputy Attorney General, and 
I want to thank you and Ranking Member Specter and the other 
members of the Committee, including Senator Durbin from my home 
State of Illinois for the many courtesies that you have all 
extended to me and my family in this past series of weeks 
leading up to this hearing.
    I would also like to thank the members for the opportunity 
to meet with some of you privately in advance of this hearing. 
It was enormously helpful to me to hear about some of the 
concerns of the Committee members and also to begin what I hope 
will be a constructive and cooperative dialog about many issues 
that face our Nation that I know we all care about a great 
deal, and a constructive dialog that I would endeavor mightily 
to maintain and foster if I were fortunate enough to be 
confirmed.
    I would also like to express my gratitude to Representative 
Kirk for coming here today and also to Chairman Leahy and 
everyone on the Committee for having this hearing so quickly 
after my papers arrived here. I appreciate that it is an 
enormously busy time of the year, not just for everyone but 
also for you, and that people have been here very late at night 
and your staffs have been here very late at night. And I am 
very grateful for you all to be here today and to show me that 
courtesy of having this hearing so quickly.
    I would like to express my gratitude to the President and 
to Attorney General Mukasey for the opportunity they have given 
me to be considered for this position. I became a lawyer in 
Chicago because I hoped to join the Department of Justice and 
to join people who were prosecuting the Graylord corruption 
cases, which were a series of cases in Chicago directed at 
corruption in the State courts there. And I had the fortune of 
being able to join that office. Actually, the first case I 
worked on was the last case that came out of the so-called 
Graylord grand juries. And so to be here today to be considered 
for the position of Deputy Attorney General is truly humbling 
for me.
    Since I was nominated, I have been asked on occasion why I 
would consider coming to the District of Columbia and leaving 
our home in Chicago, a place I love very much. And it is a fair 
question. I enjoy being a district judge very much in Chicago. 
I have wonderful colleagues there. It is a place I consider 
home. My wife and I have lifelong friends there, and it is 
where my parents live and my in-laws live, and it is a place my 
whole family considers home, and we have wonderful neighbors 
there. And the simple reason as to why I would consider coming 
here and asking my family to join me here is because of the 
regard and respect I have for the Justice Department.
    I was raised as a lawyer in the Justice Department. I 
worked there during summers in law school. First, I had the 
great fortune to be at the U.S. Attorney's Office in Chicago. I 
then spent part of another summer in the Public Integrity 
Section of the Criminal Division at Main Justice. After 
graduating, I returned to work in the Solicitor General's 
office at Main Justice.
    And then after I finished clerking, I was fortunate enough, 
a hiring freeze lifted, and I was quickly able to go to the 
Chicago office of the United States Attorney's Office where I 
was able to join many of the people who I had read about 
growing up and to learn from them, I believe, the finest 
traditions of the Department--traditions about independence and 
following the facts where they lead without regard to what that 
means, and traditions that have been established and maintained 
by all sorts of people, legal luminaries, people like Attorney 
General Robert Jackson and Attorney General Edward Levi, 
another person from my home city; Attorney General Robert 
Kennedy; but also traditions that have been established and 
maintained by really countless career people there who work 
very, very hard and make great sacrifices to try to make our 
country a better place; and traditions that are established and 
maintained by many, many brave men and women who serve as 
Federal law enforcement agents and who often make great 
sacrifices to try to make our country a better place that we 
can all be proud to be a part of.
    So if I get a chance to serve, I would hope to serve 
consistent with those traditions because that is really the 
only reason why I am here.
    I would like to thank you again for the opportunity to have 
this hearing and to do it at a very busy time of year. I am 
very grateful for that, and I hope to work with this Committee 
if I am fortunate enough to be confirmed, and I very much look 
forward to answering any questions you may have.
    [The biographical information of Judge Filip follows:]

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    Chairman Leahy. Well, thank you very much, Judge. We did 
want to move quickly because I think the Department needs as 
much leadership as it can get--and I told Judge Mukasey and I 
told the President that we would be willing to do that once the 
names got up here.
    I appreciate what you said about the people who work at the 
Department of Justice. There are so many people there, men and 
women who neither you nor I, if we spent a week with them, 
would have any idea what political leanings they had, but we 
would know and respect their competence. And I worry that 
morale has been hurt enough that some of those people whom we 
need, this country needs, who have been there in both 
Republican and Democratic administrations, that they may leave. 
And your job would be to restore much of that credibility.
    Assuming you were the Deputy Attorney General in 2005 and 
the Director of the CIA informed you that the CIA intended to 
destroy the videotapes showing the use of cruel interrogation 
techniques such as waterboarding, techniques which had already 
been at the center of a congressional debate, actually had been 
in cases in the U.S. Supreme Court and other courts about 
torture and our Government's treatment of detainees, and they 
said we are going to destroy those videotapes, what kind of 
advice would you have given them?
    Judge Filip. I would have given them--I would have first 
tried to look at the applicable legal orders that were in place 
and give them advice as a lawyer as to what their legal 
responsibilities were. I also would have considered giving them 
broader, more prudential sort of advice about whether or not, 
strictly speaking, things were within the corners of orders or 
not. It might be the better practice to keep those in any event 
given the nature of the interests at stake in terms of the 
subject matter that was on the tapes.
    Chairman Leahy. A subject matter that was before the 
Congress and the courts.
    Judge Filip. Yes, sir.
    Chairman Leahy. And, alternatively, assume you were the 
Deputy Attorney General on December 6th this year and you woke 
up to see this story in the New York Times revealing--or 
December 7th, rather, revealing that the CIA destroyed two 
tapes showing interrogations. The videos were not provided to 
the 9/11 panel, even though they had asked for them, or the 
court during the terrorism trial. So they had a request from a 
Federal judge for this information, from the 9/11 Commission, 
plus, of course, the congressional ones.
    Now, assume the Attorney General is out of the country and 
unavailable so you are Attorney General, what would you do?
    Judge Filip. I think you'd have to open up two lines of 
inquiry. One of them would be an inquiry as to any 
representations that the Department had made in court, whether 
or not those representations had to be corrected. You would 
need to begin to look to see whether or not corrective action 
needed to be taken in that regard. You would also want, I 
suspect, to at least begin the process of making inquiries 
about whether or not obstruction of justice or other more 
serious civil or criminal statutes were implicated. And you 
would want to begin an investigation in that regard.
    Chairman Leahy. Judge, if this contradicted statements that 
were made in court, is it safe to say that if they did, it 
would be the duty of the Department of Justice to immediately 
notify whatever court that was, ``We did actions that 
contradict what we have told you''? I mean, just as an officer 
of the court, wouldn't they have to do that?
    Judge Filip. Yes, sir.
    Chairman Leahy. Thank you. You would expect that as a 
Federal judge, district judge, if the Government had given you 
a statement they then found to be erroneous, you would expect 
them to be in your court very quickly to point that out.
    Judge Filip. I would expect them to notify me as a judge. I 
would expect to have done it as a Federal prosecutor, yes.
    Chairman Leahy. Thank you.
    Now, congressional investigations have run concurrently 
with executive branch investigations, certainly during the 33 
years I have been here, and Congress and the Justice Department 
have usually found ways to go forward without undermining or 
interfering with ongoing criminal investigations. Senator 
Specter mentioned Ruby Ridge. That was a case where Senator 
Specter, his leadership, and Senator Kohl and I worked in a 
bipartisan fashion to hold a hearing at the same time being 
well aware and conscious of the fact that there was an 
investigation underway by the executive branch.
    Now, in the case of the destroyed videotapes, I think it is 
very important to us to find out what the Justice Department's 
role was in providing any legal opinions about the techniques 
shown on these videotapes and their destruction as part of our 
oversight.
    What commitment can you provide that you will work with the 
Senate Judiciary Committee and other relevant congressional 
committees to provide us with information responsive to our 
oversight requests?
    Judge Filip. Senator, I acknowledge that the oversight 
authority of this Committee and other committees in Congress is 
broad and it is rooted in case law and acknowledged. And I am 
not a Washington person. I do not have extensive experience in 
trying to work with Congress in that regard. But I would direct 
the people who are involved in that, whom I understand largely 
to be career people, to appreciate that oversight is important, 
that it is not a victory for the Department when Congress is 
denied things that it can legitimately be provided, consistent 
with our responsibility as a law enforcement entity--or the 
Department's. I shouldn't say ``our.'' I apologize. With the 
Department's responsibilities as a law enforcement entity.
    And so I would ask them to try to work cooperatively to try 
to find common ground to allow Congress to exercise its 
oversight authorities.
    Chairman Leahy. You know, in this job, I am privileged to 
spend a lot of time traveling, some of it pleasurable. You and 
I discussed the fact I was visiting my relatives, family in 
Italy here recently, but a lot of them are in business around 
the world, and I find the concerns expressed by many of our 
allies and friends around the world about where America is 
going. And one of the greatest problems has been the Bush 
administration's equivocation on America's stand against 
torture.
    Last week, we saw another manifestation of the contortions 
when a senior military officer testified he couldn't say 
whether a foreign agent waterboarding an American was illegal 
or not, even though I suspect if we heard about such a thing, 
there would probably be a resolution that would go through both 
bodies unanimously condemning it.
    I criticized the State Department when its legal adviser 
took this stance. I found the testimony by a senior member of 
our military to be not only wrong but damaging. And we find in 
the Department of Justice the infamous 2002 Bybee memo to try 
to provide legal justification for this. And there, the 
Department of Justice's Office of Legal Counsel concluded that 
the President has the authority as Commander-in-Chief to 
override both domestic and international laws prohibiting 
torture and to immunize from prosecution anyone who committed 
torture under his order even if it was contrary to our laws.
    Does the President have the authority to exercise a so-
called Commander-in-Chief override and immunize acts of 
torture, as the Bybee memo argued?
    Judge Filip. I think torture is prohibited by the 
Constitution, and the President is bound by the Constitution as 
well. So the answer to that, sir, would be no.
    Chairman Leahy. Thank you. My time is up. I will be coming 
back.
    Senator Specter?
    Senator Specter. Thank you, Mr. Chairman.
    Judge Filip, I have referred to a letter which I have sent 
to you. Did you receive the letter?
    Judge Filip. Yes, sir, I did. Thank you.
    Senator Specter. Do you agree with the statement of law 
summarized by the Congressional Research Service?
    Judge Filip. I have no basis to quarrel with it, and I 
acknowledge that the oversight authority of this Committee is 
very broad. And I think that in the oversight area it is 
essential for the Department to work with this Committee to try 
to accommodate its oversight needs consistent with our 
responsibilities as a law enforcement agency.
    Senator Specter. Do you acknowledge the decisions of the 
Supreme Court in McGrain v. Daugherty in 1927 and Berenblatt v. 
United States in 1959 concerning the primacy of congressional 
oversight over Department of Justice criminal investigations?
    Judge Filip. I acknowledge all the Supreme Court decisions, 
so certainly, yes.
    Senator Specter. Well, it is an obvious matter that the 
Supreme Court makes the decisions, but I think it is important 
to set the parameters. And I went through the long list, and I 
would ask unanimous consent that this document be made a part 
of the record summarizing the investigations on the Palmer 
Raids, Teapot Dome, the white-collar criminal prosecutions in 
the oil industry, Iran-contra, Rocky Flats, Ruby Ridge, 
campaign finance investigations, the U.S. Attorney removals, 
the border guard prosecutions as all being instances where the 
congressional supremacy has been acknowledged. You do not have 
any doubt about those precedents being applicable on the 
overall question of congressional oversight?
    Judge Filip. I have no firsthand knowledge of those 
incidents, sir. I have no basis to quarrel with the fact that 
those instances are instances where there have been parallel 
investigations. I think that both branches need to be mindful 
and need to work cooperatively to try to allow that oversight 
to occur, and also at the same time to make sure that the 
possibility of criminal prosecutions are not jeopardized, and 
that perhaps that might relate to the timing of inquiries or 
what specific form information might be provided in. But I do 
not quarrel with the proposition that parallel investigations 
have occurred in the past and can occur.
    Senator Specter. Well, Judge Filip, when you talk about 
criminal prosecutions being jeopardized, let's talk about the 
relative roles of Congress versus the Department of Justice. In 
discussions with the Attorney General, reference is made to the 
prosecutions of Colonel North and Admiral Poindexter which were 
jeopardized because immunity was not granted properly. Those 
are errors which are not unheard of, whether the matters are 
handled by the United States Attorneys or by district attorneys 
or by Congress.
    But that case brings into sharp focus the primacy issue on 
the greater importance to the public to have Congress deal with 
Iran-contra on investigating whether congressional laws have 
been violated, specifically the Boland amendment, with what was 
done by the executive branch. Wouldn't you agree that even if 
criminal prosecutions are jeopardized that it is more 
important, as acknowledged by the courts, that Congress have 
primacy to proceed as Congress ultimately concludes the public 
interest requires?
    Judge Filip. I would hope, Senator, to not have to pick 
between the two. I would hope to be able to try to work with 
Congress such that Congress could perform its oversight 
missions, and criminal prosecutions, if they were there to be 
made, could be preserved.
    Senator Specter. Well, Judge Filip, I agree with you 
totally, and when we are looking toward congressional inquiries 
into the destruction of the CIA tapes, we are looking at 
broader matters than simply the prosecutions. We are looking at 
the appropriate range of interrogation tactics. Now the House 
of Representatives has passed legislation saying that the CIA 
should be bound by the Army Field Manual. And we have questions 
as to the Geneva Convention, and we have questions as to 
congressional legislation on whether habeas corpus--as the 
statutory part of habeas corpus, not constitutional--ought to 
be revised.
    Now, those are issues of greater breadth and greater depth 
than the criminal prosecution against someone who may have 
destroyed the tapes. Now, it is my hope that we can work out an 
accommodation, and that the conversation I had yesterday with 
Attorney General Mukasey will be the beginning. And he 
referenced that he was going to have his Deputies call my 
assistants, and I hope we can work it out. And if the 
Department of Justice has some witness that the Department 
thinks should not be called in a public hearing, we would give 
great deference to that, probably would agree with it.
    But if it comes to a conflict and you have to make a 
choice, is there any doubt that the broader issues that we are 
facing, which I have enumerated for you, whether we are going 
to bind the CIA to the Army Field Manual, what we are going to 
do on interrogation practices generally, how we are going to 
deal with our Geneva Convention obligations, international 
matters, all beyond the scope of the Department of Justice--if 
you have to choose, doesn't congressional primacy prevail?
    Judge Filip. Sir, I wasn't privy to the discussion you had 
with the Attorney General--
    Senator Specter. Well, strike that part. Just deal with the 
litany of issues I have given you above and beyond a criminal 
prosecution, whether congressional primary isn't pretty clear-
cut there?
    Judge Filip. Sir, I think you and I very much share the 
view that Congress has broad oversight authority, and we very 
much share the view that hopefully that broad oversight 
authority can be accommodated, while at the same time not 
jeopardizing criminal prosecutions.
    As to picking between the two of them, I would work very 
hard to try to find common ground so we wouldn't have to make 
that choice.
    Senator Specter. Well, on the second round, I am going to 
come back to a number of subjects, but I want to broach one 
more with you, and that is the steroids issue, before I yield. 
We are waiting for Major League Baseball to do something 
effective on dealing with the issue, and it is complicated 
because they have to get the agreement of players on testing. 
And one very substantial power which Congress has would be to 
change the law on the antitrust exemption to condition some 
effective action by Baseball to deal with the problem. And I 
will get into this more deeply in the second round.
    But I would like you to give some thought to that question 
as to--the executive branch obviously weighs in on legislation, 
and I would like you to give some thought to whether the 
exercise of that power to evoke the antitrust exemption might 
not be an effective tool and an appropriate way if Baseball 
does not act on its own. We would rather not interfere. But if 
we have to, would you think that a good way to go?
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you. Well, I am one who feels that 
exemption should have been lifted a long time ago, along with 
the insurance companies. That is not a question, Judge. That is 
an observation by one member of this Committee.
    Senator Kennedy?
    Senator Kennedy. Thank you very much, Mr. Chairman.
    Judge, nice to see you. I appreciated the chance to talk 
with you in my office, and also to go over some of the areas 
that we will be talking about this morning. I will come to 
those in just a moment.
    I just wanted to clarify an earlier response that you gave 
to Chairman Leahy, and that was on the torture issue. I heard 
you say to the Chairman that torture is unconstitutional, so it 
is always prohibited. Judge Mukasey said the same thing to us. 
Everyone agrees with that point. The key question is, what 
constitutes torture? Judge Mukasey would say nothing at all on 
that question. So, the same question to you. Do you consider 
waterboarding torture?
    Judge Filip. Senator, speaking personally, I consider 
waterboarding to be repugnant, as it has been reported in any 
of its various iterations. The Attorney General--and I also 
think it's important for us to all be mindful that we have 
service members around the world oftentimes in precarious 
places. And I don't view that as some sort of abstract 
platitude. I had a grandfather who was in a German prisoner of 
war camp.
    That said, the Attorney General of the United States is 
presently reviewing that legal question. He determined that he 
wanted to have access to classified information, some memos 
about it. I don't think I can, or anyone who could potentially 
considered for his deputy, could get out in front of him on 
that question while it's under review.
    But I will tell you that if I am confirmed, at a time such 
that that review is ongoing or he otherwise sought my advice on 
it, I would view it like any other legal question and take a 
long, hard look at it, and if I had a view on it different from 
his, I would tell him so.
    Senator Kennedy. Well, you've been a judge. You know what 
this issue is. This shouldn't be something that's going to take 
a lot more study about. I mean, you know what we're talking 
about. Not only are you familiar with the concept, but you know 
the arguments of it. You know what the debate has been about 
and you know what the Geneva Convention--I mean, we ought to 
get--``repugnant'' is not, I think, the answer that meets the 
requirement in terms of the various statutes.
    You're not prepared to tell us, in your own words, whether 
you believe that waterboarding is torture, the same kind of 
techniques that the United States prosecuted the Japanese for 
doing to Americans in World War II?
    Judge Filip. I think, Senator, that I ought to await having 
access to that information and await an opportunity, if 
confirmed, to give candid advice to the Attorney General on 
that before I answer a question he presently has under review.
    Senator Kennedy. Well, others will come, I am sure, back to 
that. But I must say, everyone is familiar with the challenges 
that were out there for Mr. Mukasey when he refused to give an 
answer on that. We thought that you would be able to give a 
response to this. You have been a judge. You made the 
decisions, you know what the issues are. It is not a 
complicated issue and question on it. It seems to me that you 
ought to be able to respond to it.
    Let me just go back to the issues about the Department, and 
generally torture. You're familiar with the old Bybee memoranda 
issue in question, and I'm sure you've gone through that in 
some detail.
    Judge Filip. Yes, sir.
    Senator Kennedy. The Nation was aroused by it. It was in 
effect for a period of time. Attorney General Gonzales 
basically withdrew it and issued another resolution, but he'd 
been very much involved when he had been in the White House, 
talking to OLC, the Office of Legal Counsel, in the shaping of 
the Bybee memoranda. We never got into exactly what advice he 
gave or didn't give, but nonetheless he was very much involved 
in it.
    Now we see the revelation that the CIA tapes were 
destroyed, is sort of the latest revelation in the 
administration's attempt to cover up what has been out there. 
Today in the New York Times it says that conversations took 
place about the destruction of tapes and it names Mr. Gonzales, 
Harriet Miers, David Addington, and John Bellinger as being 
involved. It doesn't give the time when that was.
    Attorney General Gonzales was confirmed on February 3, 
2005. Then in November of 2005, the tapes were destroyed, some 
9 months after Mr. Gonzales became Attorney General. It is, I 
think, unrealistic to assume that Mr. Gonzales did not have any 
further conversations about the tapes during the 9 months that 
he was Attorney General.
    The Department of Justice has refused to answer questions 
about its own involvement in the decision to destroy the tapes. 
Between the time Attorney General Gonzales and the destruction 
of the tapes, we know OLC was deeply involved in reviewing the 
legality of interrogation techniques and it issued two secret 
opinions approving harsh interrogations during this very period 
of time.
    Now, the Department of Justice has been involved in the 
litigation opposing the claims of detainees and has resisted 
the production of evidence regarding the treatment of 
detainees. This coming Friday, Judge Kennedy will hold a 
hearing to determine whether the Department of Justice violated 
a preservation order by the destroying of the various tapes. 
So, the involvement of the Department of Justice appears to be 
deep and widespread.
    Now, what has been the response of the Department? The 
Department, and under the Attorney General, has appointed 
Kenneth Wainstein, the head of the National Security Division, 
to conduct a joint investigation with the CIA's Inspector 
General. That is hardly an independent investigation. It sounds 
like the fox is guarding the henhouse. The National Security 
Division works closely with the CIA, and I'm not aware that it 
has a track record of investigating criminal misconduct of 
public officials.
    Mr. Wainstein was U.S. Attorney in the District of Columbia 
in 2005, so there may be a question about the involvement of 
his office in the preservation orders that had been issued for 
the interrogation tapes. Also, according to General Hayden, the 
CIA's Inspector General actually viewed the destruction of 
tapes, so the Inspector General may be someone the 
investigators should be questioning, not one who should be 
doing the questioning.
    Now, there is a strong possibility of the White House and 
Department of Justice being involved in the decision to destroy 
the tapes that greatly increases my doubt about whether the 
Department of Justice can lead the investigation in a way that 
will assure the Congress and the American people that it is 
independent and uncompromised. Appointing a special prosecutor 
is the safest way to make sure the investigation meets the 
standard.
    Now, will you consider appointment or recommending a 
special prosecutor?
    Judge Filip. I think it is imperative that the 
investigation be done in a way that it can be conducted with 
integrity. I'm not at the Department now so I don't know the 
specifics of it, but if the facts warranted any particular 
course of action, including putting particular individuals on, 
taking particular individuals off, up through and including a 
special prosecutor, if that's what I thought that the law and 
justice required, yes, I would do that.
    Senator Kennedy. Should the FBI have a role? They have 
experience in conducting criminal investigations.
    Judge Filip. Again, I'm not at the Department. If it would 
be appropriate for them to get involved, I have the greatest, 
you know, respect for the FBI and would certainly consider 
bringing them onto the team.
    Senator Kennedy. The Public Integrity section. They have 
the experience and expertise in prosecuting crimes of cover-
ups. Should they be involved?
    Judge Filip. If it were appropriate to include them. You're 
absolutely right. There are some very talented people there and 
I would consider that as well, yes.
    Senator Kennedy. Well, Mr. Chairman, my time is up. But I 
don't know what, quite, the word ``appropriate'' means on this. 
So we have these on the record. This is a time bomb. This is on 
the record. I've tried to lay out what the facts are about the 
difficulties of Wainstein's on there. It is just mystifying to 
me why the Attorney General wouldn't involve the FBI, why they 
wouldn't have the Office of Public Integrity, which has under 
the Criminal Division, you're telling me now today that you 
will just--if it's appropriate, it will? But you're not--I 
don't get much sense of urgency about the importance of it and 
about your role and about your deep concern about this issue.
    Judge Filip. Senator, I think--
    Senator Kennedy. I want to be fair to you in listening to 
your response.
    Judge Filip. May I respond?
    Chairman Leahy. Sure.
    Judge Filip. I think it's a very, very important issue and 
I would hope that my record as a prosecutor would give you 
comfort that I will do whatever is appropriate to make sure 
that it's handled fairly. I'm not at the Department now. If 
there's one thing learn as a District judge, it's that facts 
matter and that you have to get in and roll up your sleeves and 
try to understand what all the particulars are.
    I understand I am not the first person to take a look at 
this, but if I thought that for any reason it was appropriate 
to put particular people on, to take particular people off, or 
to have the matter removed from the Justice Department in its 
entirety, I wouldn't hesitate to say so, sir.
    Senator Kennedy. Thank you, Mr. Chairman.
    Chairman Leahy. I should note that Congressman Kirk was 
here earlier to introduce you, and at that time his duties were 
keeping him away. But Senator Durbin also, from Illinois, is 
here.
    Senator Durbin, you are going to have time for questioning 
later. But did you want to add anything to the introduction 
that the Congressman made earlier?

 PRESENTATION OF MARK R. FILIP, NOMINEE TO BE DEPUTY ATTORNEY, 
   DEPARTMENT OF JUSTICE, BY HON. RICHARD J. DURBIN, A U.S. 
               SENATOR FROM THE STATE OF ILLINOIS

    Senator Durbin. Just very briefly. I apologize for not 
being here, Judge Filip, when you were initially introduced. I 
welcome you and your family in coming here today.
    Mr. Chairman, it was my good fortune several years ago when 
Senator Peter Fitzgerald nominated Mark Filip for the Federal 
bench, to meet him and to support his nomination. He squeaked 
by the U.S. Senate with a confirmation vote of 96 to nothing. I 
have to tell you that his 3 years on the Federal bench in 
Chicago have confirmed the feelings of the Senate that you were 
ready for that job.
    In the almanac of the Federal Judiciary, there were 
comments, anonymous comments, by Chicago attorneys which any 
judge would love to read. They said of your service on that 
bench: ``His legal ability is a perfect 10 out of 10.'' ``He's 
an exceedingly smart man.'' ``He's the nicest judge in the 
courthouse, never loses his temper, never embarrasses 
lawyers.'' ``You always feel as if you're going to get a fair 
shake in his courtroom.'' That is high praise from men and 
women who could have said other things more negative.
    So I thank you for your great service on the Federal bench, 
and I hope today that in the course of the questioning we can 
justify your ambition to move from that bench to this high 
level in the Department of Justice. Again, I want to thank you 
and your family, all of you, for the sacrifice you have made to 
public service. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    I talked earlier with Senator Specter, and he can speak for 
himself in this, and I've raised this with the representative 
from the Justice Department yesterday. Obviously we are going 
to be in session more pro forma today than I had hoped. The 
normal mark-up that we would have tomorrow will not occur. I 
would just urge the Department of Justice that your nomination 
and others--we've really been trying to push these quickly--
that we work out maybe an accomodation with Senator Specter and 
myself to name, in about a 2-month period, as acting these 
various people, yourself included, which would allow us, as is 
the regular process, to have our mark-up in committee and a 
vote on the floor.
    The Deputy Leader is here. I think he would concur with me 
that mark-ups or a floor vote would go very quickly. I throw 
that out. That's not a question to Judge Filip, but I throw it 
out as just something to suggest to the Department of Justice. 
In the years I've been here, there has been ample precedent for 
this when Congress is going to be out rather than try to do 
some kind of a recess appointment which just angers everybody 
when it's done without concurrence of both the Chairman and the 
Ranking Member.
    In this case, Senator Specter and I would be willing to 
consider something where a number of these nominees could be 
named on an acting basis for a couple of months, with the 
understanding we're going to be completing all of our process--
certainly within that period of time.
    Senator Specter, does that fairly state our conversation?
    Senator Specter. Mr. Chairman, I think it does. We were 
talking on the floor late last night. We have irregular hours 
and there are lots of conversations that go on, and 
occasionally we say something constructive. Senator Leahy 
broached the subject of trying to get you on the job, and he 
and I are in agreement that it would be very useful if you were 
on the job. We can't work through the confirmation at the 
moment, but I think that Senator Leahy has made a very generous 
suggestion to the administration, one that I concur in totally, 
to have you take on acting, which is not customarily done.
    When somebody is nominated for a position, people stand 
aside and don't answer any questions, and don't talk to the 
press, and talk to hardly anyone so as not to impede the 
ultimate confirmation. But with our concurrence--and there are 
other members present, if anybody objects to that. I don't 
think people will--it would be very helpful to the Department 
and we want to help the President and the Department move 
ahead.
    Chairman Leahy. Thank you. With that, the next in order we 
have Senator Hatch, Senator Cardin, Senator Sessions, Senator 
Whitehouse, Senator Durbin on questions, and then back to the 
two leaders of the committee.
    Senator Hatch?
    Senator Hatch. Well, thank you, Mr. Chairman. If I could 
make a suggestion, this is such an important position and needs 
to be filled. He is a sitting Federal judge. Personally, I 
believe this side would waive needing unanimous consent to get 
him on the job and get him confirmed before we actually go out 
this year. That might be something we want to do.
    Chairman Leahy. Well, I think we're getting into a 
discussion that we should probably be having among members 
privately.
    Senator Hatch. Well, I just--
    Chairman Leahy. And what we have done--Senator Specter and 
I have done something that takes care of the problem. I think 
what the Senator from Utah is about to suggest is something 
that would require both Leaders and everything else, and I'm 
not in a position I can speak for them, nor is the Senator from 
Utah. So I think we should go ahead with the questions.
    Senator Hatch. If I could just add to that one comment, 
that that is a solution that probably could be done. I can't 
imagine a sitting Federal judge wanting to take a recess 
appointment. I think that he would--and we all know how 
qualified and competent he is. So let's think about it anyway, 
Mr. Chairman. I know that you have great intentions here. It's 
just a suggestion. I hope we can get him on the job, is what 
I'm saying, full-time.
    Well, I want to thank you, Mr. Chairman, for holding this 
hearing. I want to welcome you, Judge Filip, your wonderful 
wife, these fine young men that you have as sons, and your 
friends, and principal, and all here. I'm grateful. I enjoyed 
meeting in our office a couple of weeks ago. I expect great 
things from you at the Department. I think all of us do.
    You have accomplished some amazing things in your legal 
career. I understand you were nominated to the bench. When you 
were, the Chicago Council of Lawyers endorsed your appointment 
and praised your legal ability, temperament, and 
professionalism.
    Now, the Senate, of course, unanimously confirmed you to 
the U.S. District Court, the Federal District Court, almost 4 
years ago and you've served in a distinguished fashion there. 
Then last year, the Chicago Council of Lawyers surveyed 
practitioners about judges and you again received rave reviews. 
They say you're impartial, open-minded, smart and hardworking, 
professional, and easy-going, and your integrity is absolutely 
unquestioned. So, I would think we might be able to hopefully 
get you on the job.
    Now, let me quote from a recent posting on a popular legal 
blog by a criminal defense attorney who practices before you: 
``He is outstanding and is one of the best judges we have in 
the Northern District. What I know is what I see in court. He 
is bright, thoughtful, and well-prepared on the cases. He is 
respectful of the parties and attorneys and conducts himself in 
complete professionalism.'' Now, that's from a criminal defense 
attorney about a judge and former prosecutor. That is high 
praise, indeed.
    Now, it seems like you have more than fulfilled people's 
high expectations on the bench, and I expect you to do the same 
at the Department of Justice. As I told Attorney General 
Mukasey when he was before this committee, I think your 
experience as a Federal judge is an important addition to the 
leadership team at the Department. We all respect the Federal 
bench and we certainly respect you.
    More and more issues confronting the Justice Department, 
especially in the war on terrorism, end up challenged in court. 
Having not just smart lawyers, but experienced judges over 
there making these decisions, adds something very unique and 
valuable. I think you can add a lot.
    Now, in the controversy over destruction of videotapes 
allegedly recording CIA interrogation of terrorists, Attorney 
General Mukasey has said that Congress should wait for him to 
investigate before launching its own probe. In other words, let 
the prosecutors do their work before the politicians join the 
fray.
    Today, the Washington Post editorialized that the Attorney 
General was right. Yesterday, the Chicago Tribune said the same 
thing, that politicians should not throw a wrench in the works. 
I find it a little ironic that some who most loudly demand that 
the Attorney General be independent from the President appear 
to want him to be dependent upon Congress. I think we've got to 
be careful there.
    Mr. Chairman, I ask consent to include these two editorials 
in the record.
    Chairman Leahy. Without objection.
    Senator Hatch. Judge Filip, what is your view of that 
issue? Should the Congress hold off and let the Justice 
Department probe proceed first? If so, explain why.
    Judge Filip. Senator, I would hope that both bodies could 
pursue their investigations. At this early stage it may make 
some sense to give some breathing room to the Department so 
that they can try to see what the landscape looks like and see 
if it looks as though a criminal investigation is going to go 
forward. But I would hope that both aims can be pursued and 
that folks can work cooperatively in that regard.
    Senator Hatch. Well, thank you.
    During his confirmation, Attorney General Mukasey promised 
personally to reexamine the Justice Department's strategy for 
enforcing the anti-obscenity laws. Now, I think the Department 
has been wrong to prosecute only the most extreme fringe 
material and leave the more common, equally obscene, equally 
illegal material alone. That narrow approach, to me, does not 
impact the obscenity industry and does not curb the poison of 
obscenity in our communities. So will you personally examine 
this policy and consider changing it, if you will?
    Judge Filip. Yes, sir.
    Senator Hatch. Well, those are two things that I feel 
pretty darn deeply about, and there are a lot of other things, 
too. But I noticed that--well, let me just ask one other 
question if I can.
    Some have questioned whether you have the management 
experience to lead the Department with more than 100,000 
employees, hundreds and hundreds of lawyers in operations 
spread across the country. Now, the hearing we had yesterday 
included nominees to Justice Department components as varied as 
the Tax Division, the Violence Against Women Office, and the 
Community Relations Service. The Deputy Attorney General is 
like the chief operating officer. On the one hand, I do not 
know how anyone nominated for this position could have 
comparable prior experience unless they led a massive 
multinational corporation, and that isn't generally where we go 
to get people in your position.
    So let me ask you, how do you size up the management 
challenges ahead and what prepares you to tackle such a 
monstrous task?
    Judge Filip. Sir, I hope I am humble enough to realize that 
there's 110,000 very talented people there, and I would seek to 
draw upon their talents. I have managed in a legal setting. I 
have managed law enforcement people and teams of attorneys both 
as a prosecutor and in the private sector, but not 110,000 
people. I doubt many folks have ever done that. But I do think, 
and work very hard to try to be fair and to try to be a good 
listener. I would seek to draw upon the talents of the people 
who are there.
    I would seek to try--as I understand it, a big part of the 
job is resolving disputes within the Department, tough disputes 
that can't be resolved anywhere else, and I would hope that my 
experience as a judge and my record as a judge would give 
people comfort that I'll give people a fair hearing and hear 
them out, and then be decisive and try to do things in the best 
interests of the Department.
    Senator Hatch. Well, Judge, I mentioned a minute ago I 
think your judicial experience is particularly important. Some 
have questioned whether you are sufficiently independent to 
help lead the Justice Department. Now, different people mean 
different things about words like ``independent''. Some will 
not think you are independent unless you actually oppose the 
very President who appoints you on certain issues. Some say you 
will simply kowtow to the President because you volunteered on 
his 2000 campaign and contributed to his reelection campaign. 
To me, that's crazy. No one cited these connections or 
questioned your independence when the Senate unanimously 
confirmed you to the Federal bench.
    Now, we easily confirmed to the Judiciary and Justice 
Department scores of President Clinton's nominees, who were 
tied much more closely to him. No one questioned their 
independence or their commitment to the rule of law.
    But let me ask you how especially your service as a judge 
has given you the kind of independence, the kind of commitment 
to the rule of law that you will need in order to help lead 
this Justice Department.
    Judge Filip. Senator, commitment to the rule of law is 
fundamental as a prosecutor, as a member of the Justice 
Department, as a District Court judge, and I would hope my 
record reflects that. I try to figure out what the law is and 
apply it to the facts at hand fairly without regard to where 
that leads you.
    Senator Hatch. Well, thank you. I appreciate it.
    Mr. Chairman, thank you for this time.
    Chairman Leahy. Thank you. I found it somewhat interesting, 
what Senator Hatch was saying: some people say this, some 
people say that. He apparently has better sources than I have. 
I hadn't heard anybody say either of those things that may make 
good debating. But I think everybody has been extraordinarily 
objective in talking--both Republicans and Democrats, in 
talking about your nomination. Certainly Senator Durbin, who is 
the Deputy Majority Leader, has been.
    Senator Whitehouse?
    Senator Whitehouse. I yield to Senator Durbin.
    Senator Durbin. Thank you, Senator Whitehouse, for doing 
that.
    Judge Filip, let me explain to you what I consider to be my 
personal moral dilemma with your nomination. I felt that Judge 
Mukasey offered a clear break from former Attorney General 
Gonzales and that his time on the Federal bench and the wisdom 
of his years and his responses to questions on our first day 
indicated to me that he was prepared to stake his personal 
reputation on standing up for the Constitution, for legal 
principles, and walk away from the job if he felt he was asked 
to compromise.
    Then came the second day, and that's when things fell 
apart. I asked him a question about waterboarding, followed 
through by Chairman Leahy and Senator Whitehouse. At the end of 
the day, I concluded I could not support his nomination for 
Attorney General. It was a stark reversal because my friend and 
colleague, Senator Schumer, wanted to entrust the job to him 
and I felt that this issue was so important and so primal in 
terms of the rule of law and the image of the United States, 
that until we were given clear, unequivocal answers, I could 
not go forward.
    Now you find yourself in a compromising position because 
you are aspiring to be his Deputy, and your answers earlier to 
questions about waterboarding showed deference to the fact that 
Judge Mukasey is going through a process of evaluating this 
issue of waterboarding, which leads me to believe that you are 
not going to provide any more satisfactory answers on the issue 
than he did.
    So let me try to take this to a point--I hope we can take 
it to a point where we can make some progress on this. I have 
already said, and I believe, you did a fabulous job, and have 
done a great job as a Federal judge. I'm glad I associated my 
name with your nomination. You've not disappointed. In fact, 
you've confirmed our best hopes in terms of your public 
service.
    Here's the point. I think the definition of waterboarding 
is very basic. If I understand it--and I tried to just jot it 
down--it is an interrogation tactic which simulates drowning. 
It is designed to put the detainee in fear of his life. I think 
that is a fair conclusion to what waterboarding is.
    And it appears that we have prosecuted Japanese who 
performed this tactic on American soldiers. We even prosecuted 
an American soldier guilty of that conduct against Filipinos. 
It seems to me to be, on its face, an obvious and simple 
definition that has been applied by our government, prosecuting 
those who did it to others or did it to our own.
    Now when I ask Judge Mukasey, is this torture, he said he 
can't answer that question. Under what circumstances would 
waterboarding not be torture?
    Judge Filip. Senator, I do not have access to those 
confidential memoranda and I have not had a dialog with the 
Attorney General about the question he has presently under 
review at all. I don't believe, as someone who would be his 
putative deputy, I can get out in front of him and answer the 
question he specifically has under review.
    Senator Durbin. Do you understand the problem that creates 
from this side of the table?
    Judge Filip. I understand the seriousness of the issue. I 
understand your frustration. I would ask, respectfully, that 
you look at my record and see whether I've had hesitation 
looking at issues independently and in an intellectually honest 
way, and speaking up for what I thought the law required. 
That's what I would do if I were confirmed.
    Senator Durbin. I don't have any question about that. I 
think you're a man of principle. I recall that when you sought 
the nomination there was one issue involving something you'd 
written as a law student, if I'm not mistaken. You took the 
time to give me a lengthy, and I thought very comprehensive, 
explanation about your thoughts then and your feelings at the 
time. I thought it was a very honest admission that perhaps 
what you said earlier was something you didn't feel today.
    This is so fundamental. Since Judge Mukasey took this job 
as Attorney General, it appears--at least now we know--there's 
been a public disclosure that evidence was destroyed. It raises 
a serious question. Should this come up in a criminal 
prosecution that the government or either side had destroyed 
evidence, you know the obvious conclusion that could be drawn, 
that that evidence, in and of itself, was at least troubling, 
if not incriminating.
    We continue to be haunted by this administration's refusal 
to make their actions match their rhetoric. The President has 
said repeatedly, torture is not our policy. We do not engage in 
torture. Yet when we go to the most fundamental and basic 
definition of torture, waterboarding, we can't elicit an answer 
from the Attorney General or his Deputy Attorney General, a 
clear, unequivocal answer in this.
    That is my dilemma. That is what I am going to be faced 
with. I happen to believe this is not just another issue. I 
think this may be the defining issue for the war on terror and 
America's reputation when it comes to human rights. That's why 
I'm going to continue to struggle with this. I don't know if 
there's any more guidance you can give. You've been consistent 
in your answer and I understand it, but it doesn't leave me in 
a place where I feel satisfied. I cannot believe that we are 
going to walk away from decades of adherence to Geneva 
Conventions from a human rights reputation which led us to be 
the critic of the world.
    You know, we publish an annual human rights report card on 
the rest of the world. Our State Department does it, continues 
to do that. So it really puts us in a special position of 
responsibility when it comes to these issues, and that's why I 
struggle with this issue and I struggle with your response. I 
think it is a response consistent with Attorney General 
Mukasey, but consistent with Attorney General Mukasey's 
response to this committee he received the lowest confirmation 
vote of any Attorney General nominee in the last 50 years. 
That's where you find yourself at this moment over the same 
issue.
    Is there something more you want to say or add to our 
thinking on this issue before I move to another topic?
    Judge Filip. Sir, the issues you identified about our 
country's perception in the world and our relationships with 
our allies and our adversaries and our historical allies are 
very legitimate ones for people to consider. I share those 
views. But to go further than that, I think that is what I 
ought to add.
    Senator Durbin. Let me ask you one last question. I guess 
my time is up.
    Chairman Leahy. That is all right.
    Senator Durbin. If I might ask one last question. This 
really relates to something close to home. Just last year, or 
earlier this year, I attended the funeral of a 13-year-old in 
the Logan Square neighborhood of Chicago. Her name was Shayna 
Gayden, playing at school and caught in the crossfire of a gang 
shooting. She was killed. It was a sad moment, attending that 
funeral service, memorial service. I think it's imperative that 
we deny violent criminal gangs access to deadly weapons. After-
the-fact prosecution is vital, but prevention is essential.
    If you're confirmed, I want to know if you will make it a 
priority of the Department of Justice to, number one, ensure 
that violent criminal gangs cannot obtain deadly weapons, and 
number two, to make certain that those Federal firearms 
licensees who knowingly supply guns to gang members and other 
criminals are identified and stopped.
    Judge Filip. Senator, I have been to those funerals and I 
have been in hospital waiting rooms with the families of law 
enforcement officers and children who have been killed, and at 
times almost worse than killed in terms of being put in comas 
that they--one friend of mine is still in years after that 
event happened.
    I think violent crime is a scourge on this country. It has 
horrible human consequences. Anybody who has ever been a 
violent crimes prosecutor, anybody who has ever been an 
emergency room doctor, particularly in places like Chicago, but 
anyone in the world knows that, I would give violent crime an 
absolute priority and do whatever I could to try to prevent 
those crimes.
    Senator Durbin. And the Federal firearms licensees?
    Judge Filip. They need to adhere to the law as well. Yes. I 
would try to help you on that issue.
    Senator Durbin. It turns out a very small percentage of 
them are generating the weaponry that is killing these innocent 
people. There is a mindless crusade by some gun lobbies to keep 
that information from the hands of prosecutors. I cannot 
understand how anyone could, in good conscience, adhere to 
that. I hope, if you are approved for this spot, that you will 
have a different view.
    Judge Filip. Thank you.
    Senator Durbin. Thank you.
    Chairman Leahy. Senator Sessions?
    Senator Sessions. Thank you.
    Well, you are, of course, right, Judge Filip, that the 
Attorney General has undertaken to do this and it would be 
really--we would have to question your judgment if you were to 
start opening from this table on matters that the Attorney 
General, your boss-to-be, hopefully, is undertaking a review 
on. That's just not appropriate and I'm sorry you were asked to 
answer those questions. You answered very, very well.
    I would just say to anyone that might be listening, we have 
had a very limited number, it appears, of incidents of 
waterboarding being conducted. There's no evidence that it's 
been used in the last several years. It was right after 9/11 
and it was something that is under review today, and should be. 
I would note that American soldiers have had that technique 
utilized against them in order to prepare them for the things 
they might face if they're captured.
    I would also note, and we need to make this very clear, 
that the U.S. military does not use these kinds of techniques. 
The U.S. military complies with the laws of war with regard to 
lawful combatants, and even beyond that to unlawful combatants. 
So it's not our policy, it's not being done. This repeated 
talk, and talk, and talk, I believe, has had a tendency to 
really damage the reputation of our military because they are 
so careful about these kinds of things.
    I would note that torture--the definition of torture is not 
waterboarding. The definition of torture, according to the U.S. 
Congress, and we passed title 18, section 2340--it says ``an 
act committed under color of law that imposes severe''--
severe--``physical or mental pain or suffering on someone.'' 
That can't be done to a captured, lawful soldier either. We 
have to comply with the Geneva Conventions.
    You have been asked a good bit about the right of 
congressional oversight, and we do have great powers in that 
regard. But having spent 15 years in the Department of Justice 
as a U.S. Attorney and Assistant U.S. Attorney, I served on the 
Advisory Committee of the U.S. Attorneys, came to Washington 
regularly, and I understand that there are legitimate executive 
branch powers, just as there are legitimate congressional 
powers. Are you prepared, if you take this office, to defend 
the legitimate powers of the executive branch, even if you have 
to deal with some of these fine Senators here?
    Judge Filip. Yes, sir.
    Senator Sessions. You'll have to say ``no'' sometimes.
    Judge Filip. Yes, sir. I--
    Senator Sessions. Are you prepared to do that?
    Judge Filip. I understand.
    Senator Sessions. The office of President is not President 
Bush. He'll soon be out of office and cannot be reelected. 
Someone else will be President. The office of the presidency, 
the office, the executive branch itself, does have legitimate 
powers and they should be rightfully defended.
    Now, let me ask you this. You've heard a lot of these 
questions about some arcane matters that are relatively 
important. Some of them are very small in real impact, the 
number of people impacted. Let me raise something to you that 
is not a small matter, and that is the question of creating a 
lawful system of immigration in America. We got so many phone 
calls, the entire switchboard system shut down here. That is 
not nativist talk, those were legitimate concerns by Americans 
that our government has not created a lawful system of 
immigration.
    We probably, according to estimates, had at least 500,000 
enter our country last year illegally. We have arrested one 
million at the border. Would you say that those numbers and 
other things we've read about failures in the area of 
immigration enforcement, would you say that indicates that we 
have a failure of the rule of law in an important matter 
relative to the sovereignty of the United States of America?
    Judge Filip. I think enforcing the immigration laws is 
essential, sir. Every one of my grandparents was an immigrant. 
I understand why people want to come to this country. It is an 
extraordinary place where someone like me, who has four 
grandparents who didn't even really speak English a great deal 
in their home, can be sitting before you here today for the 
position of Deputy Attorney General.
    So, I understand why people want to come here. But this 
country doesn't have an open borders policy. I appreciate that. 
There are laws. There are balances that have to be struck. This 
Congress strikes them. Part of the important mission of the 
Justice Department is enforcing those laws, and I agree with 
you. I think it is important.
    Senator Sessions. You would accept the statement then that 
the Department of Justice has a key role in seeing that these 
laws are enforced?
    Judge Filip. Yes, sir.
    Senator Sessions. And as the Deputy Attorney General, will 
you commit to us that you will take steps to end the 
lawlessness and to lead us into a lawful system of immigration 
according to the best of your ability?
    Judge Filip. I would seek to enforce all the laws, 
including, certainly, the immigration laws. Yes, sir.
    Senator Sessions. I would just say parenthetically, the 
reason we haven't had a lawful system of immigration for the 
last 40 years, maybe, is because the executive branch hasn't 
wanted it. Congress has pushed it on any number of occasions, 
fitfully and not consistently, but no President has taken it 
upon himself, no Department of Justice, no Customs, Immigration 
agencies have taken it upon themselves to actually do what 
needs to be done and seek from Congress the assistance they 
need to make it happen. Will you call on Congress for help if 
you believe you need additional laws or additional funding to 
achieve this goal?
    Judge Filip. Yes, sir.
    Senator Sessions. Tell me how you see the Department of 
Justice to be organized and your responsibility in it. What is 
going to be the role of the Deputy in Attorney General 
Mukasey's Department?
    Judge Filip. The Deputy, as I understand it, sir, is the 
chief operating officer, or as you might say in Chicago, the 
guy who works the boiler room. It's somebody who tries to keep 
things operating, all the divisions functioning within their 
lanes, trying to responsibly handle their areas of assignment 
and to resolve disputes within the Department between those 
branches, those units that are difficult disputes that 
otherwise can't be resolved, and to try to ensure some issues 
are going to be important, sufficiently important, that they 
get directed to the Attorney General, and also to try to get 
those issues that can be resolved without bothering him, get 
those resolved short of--
    Senator Sessions. Well, I agree, having been in the 
Department and seen issues come up for the 12 years I was 
there, the very same ones every single year between the very 
same departments. Do you think you're capable of making a firm 
and clear decision in deciding some of those issues?
    Judge Filip. I think I've learned to do that as a judge. I 
would hope so. Yes, sir.
    Senator Sessions. Well, you should try. I won't hold it 
against you if you haven't been successful in all those things. 
Somehow they just continue to go on for years and years.
    With regard to immigration, there's the project that the 
Department of Justice has done that does seem to be working, 
Operation Streamline, which takes--my time is up, I see, Mr. 
Chairman. Are you familiar with that operation and will you 
continue to support it, which basically says that if someone 
enters our border illegally, they will in fact be prosecuted?
    Judge Filip. I'm somewhat familiar with it, sir. My 
understanding of it is that it's been very successful. If 
that's the case, I would certainly try to make sure that the 
Department is engaging in the most successful practices. Yes, 
sir.
    Senator Sessions. It's working, apparently, dramatically 
well in the areas it's being used. It's not being used 
throughout the whole border. I hope you will consider employing 
those procedures throughout the border.
    Judge Filip. Thank you, sir.
    Senator Sessions. Thank you, Mr. Chairman.
    Chairman Leahy. Senator Whitehouse?
    Senator Whitehouse. Thank you, Mr. Chairman.
    Welcome, Judge Filip. Thank you for coming to my office the 
other day. I appreciated our discussion very much.
    Just one final word on the question of waterboarding, which 
has come up a great deal today. As important as the substantive 
question of waterboarding is, to those of us who find it self-
evident that waterboarding is torture, the failure on the part 
of the Attorney General to, if I would say from my point of 
view, recognize the obvious, raises a couple of flags. One 
explanation is that it is lawyerly caution that is behind that, 
and that is understandable and legitimate, if substantively 
different from my conclusion.
    The other concern, of course, is that somebody got to him 
and he was told that this is an issue that you're just going to 
have to play ball on. After what this Department has been 
through, we are hyper-sensitive here to that concern, so I hope 
you appreciate where these questions are coming from.
    What I see before me is a man who loves and respects the 
Department of Justice, a man who served as an Assistant U.S. 
Attorney with considerable distinction, who served under both 
Republican and Democratic administrations, who was willing to 
move his family and give up a lifetime Federal judicial 
appointment, which is something that, as we know, many of our 
lawyer colleagues yearn for all their lives, in order to come 
back to Washington, in order to rally to this Department in its 
hour of need, even if there is only a year and change 
available. Am I mistaken in any of that?
    Judge Filip. No, sir. I think the Department of Justice is 
unique in its role within the country in terms of trying to 
adhere to the rule of law and I think--I like being a judge a 
tremendous amount. I have wonderful colleagues. I was torn at 
the idea of leaving the bench, very much so.
    But if there is an opportunity to serve the Department and 
to make a contribution, notwithstanding the minuses on the 
scales, at the end of the day that's what won out for me. If I 
get the chance to serve, I will try to add my name in a small 
place, on a very long list of people, many who are quite famous 
and many, many more who aren't, who have tried to serve the 
country honorably in that role. That's the only reason I'm 
here.
    Senator Whitehouse. And could you comment just a little 
further, because I think we share this view but I'd like to 
have you share it here in this public forum, on what the role 
is of the Department of Justice as an institution in our 
country's architecture of government?
    Judge Filip. It's elemental. You know, it's an outdated 
phrase or an outdated phrase in terms of the language it 
chooses, but we are a Nation of laws and not of men. The 
Justice Department is fundamentally dedicated to that. I had 
the opportunity to serve as an Assistant U.S. Attorney in a 
place where people, without regard to any politics or any 
personal predilections about anything, joined arms and tried to 
make sure that the rule of law is observed and that people try 
to do the right thing.
    Doing ``the right thing'' is not a self-executing phrase. 
It takes people rolling up their sleeves and thinking hard 
about what that means in any particular instance, but it's a 
great flag for the ship to fly under. In terms of the role of 
the Department, it's to protect the civil rights of every 
individual, it's to try to defend the law or apply criminal 
laws vigorously, while at the same time respecting the rights 
of the accused and taking appropriate respect for victims.
    The Department's role is fundamental and it would be my 
singular privilege to help serve the people in what 
fundamentally is a family of people and law enforcement agents 
who try to make this country a better place, and I appreciate 
that.
    The people on the streets are the backbone of the 
Department, and the people who sit in suits and aren't in a 
position where they're going to get shot on a raid are not the 
most important people in the Department, but if I get a chance 
to be the person who would be the Deputy, I would try to be 
there for the people who are the backbone and to try to serve 
consistent with those principles, because that's what's going 
to endure over time.
    Senator Whitehouse. Let me suggest to you that one of the 
things that helps those principles endure over time is a 
battery of institutional safeguards that have been developed 
within the Department over many years for the specific purpose 
of protecting the extraordinary power that it has. We know the 
power that it has. There is no power like it within the 
continental United States, within the geographic United States. 
It is the power to break through someone's door. It is the 
power to remove them from their homes and throw them behind 
bars. It is ultimately the power to put them to death. It is 
clearly the power to destroy reputations.
    The idea that that power would be infiltrated by political 
considerations is anathema to America, and yet we stand at a 
point where we look back at a Department where many of us 
believe that is precisely what has happened, and moreover that 
those very institutional safeguards that were built to protect 
from that were disassembled in order to allow it to happen.
    I would like to ask you to comment on some of these 
institutional safeguards generally, and then specifically I 
understand that the Attorney General will be, today, announcing 
that the fire wall between the White House and the Department 
of Justice that preexisted the Gonzales and Ashcroft 
administrations has been reestablished. I hope that is the 
case. If that is the case, thank God, it's about time.
    The other specific one, in addition to the general question 
about the institutional safeguards, is the manual. Senator 
Feinstein, whose seat I am sitting in right now, noticed that 
in the earlier edition, this 1995 edition, it was stated quite 
clearly that Federal prosecutors and investigators should be 
extremely careful to not conduct overt investigations during 
the preelection period or while an election is under way, that 
most, if not all, investigation of an alleged election crime 
must await the end of the election to which the allegation 
relates, and that the Justice Department generally does not 
favor prosecution of isolated fraudulent voting transactions.
    In the new version, May 2007, all three of those written 
guidelines for prosecuting attorneys around the country were 
removed. I think they were caught doing it, and rather than fix 
it they took the offending language, took down the 
institutional safeguard, out of the manual. I would like to see 
that put back, because what the removal of that language does 
is to allow an ambitious U.S. Attorney to prosecute a case of 
an isolated, fraudulent voting transaction during the 
preelection period as an overt investigation in order to 
influence the outcome of that election.
    So that's just one example. I would urge you to really do a 
thorough, like a ship captain would when you've had a wreck or 
a fire. You go back and you do a damage report. I would hope 
that it would be part of your tasking to yourself to say, what 
were these institutional safeguards, which ones were broken, 
and how do we put them back? To you.
    Judge Filip. The traditions of the Department and the 
safeguards of the Department are essential and I would ensure 
to appreciate them and to apply them, both in fact and in word. 
I worked in an office and in an area of prosecution in great 
part where any whiff or fact of partisanship would have 
fundamentally wrecked the mission and its integrity. If I am 
confirmed, on my watch there will be none of it, period. You 
have identified one important area to look at. There are 
others. The Honors Program hiring. That sort of partisan 
consideration that you alluded to, it won't happen.
    Senator Whitehouse. Let me ask you about one other thing.
    I just want to express my appreciation to the Chairman for 
letting me go on over my time. I'm grateful.
    I've recently had the chance, as a member of the 
Intelligence Committee, to review a variety of Office of Legal 
Counsel opinions. After considerable discussion with the DNI 
and with the Department, I've been able to have three legal 
propositions from those OLC opinions declassified so that I can 
discuss them publicly.
    I find them to be pretty dangerous propositions and out of 
kilter with what my understanding is of the basic principles of 
American law. One of them, I'd like to show right here: ``The 
Department of Justice is bound by the President's legal 
determinations.'' It's an interesting theory. If you applied it 
in a company, I suspect the general counsel who said that to 
the board of directors about the president would likely be run 
out of the shop. That's probably malpractice, might even be 
unethical, to not be willing to stand by your well- considered 
and sincerely held legal determination as Attorney General of 
what the law, indeed, is.
    It hearkens back to that unfortunate interview of President 
Nixon with David Frost some years ago, where he said, ``Well, 
when the President does it, that means it is not illegal.'' 
That was no exactly a high moment for the rule of law in 
America.
    Would you care to comment on to what extent the Department 
of Justice, as an independent institution, must yield its view 
as to the law where the President has instructed it to go 
otherwise and whether your opinion changes if the question of 
the rule of law would potentially involve peril to the 
President or his or her administration?
    Judge Filip. My assessment of the law would be my 
assessment of the law without regard to where it let me--led 
me. And if the administration or anyone, including the Attorney 
General, were not able to be persuaded and were to engage in 
something or direct upon a course that I believed to be 
inconsistent with the Constitution, I would resign and I 
wouldn't hesitate to do that.
    Senator Whitehouse. I will just say, it made me sick to my 
stomach when I was sitting there and that phrase jumped off the 
page at me. I think it is the job of the Department of Justice 
to tell the President what the law is, and not vice versa.
    The last question that I have for you, I'm asking at the 
behest of my colleague from Florida, Senator Bill Nelson. He is 
not on this committee, but he has a matter that concerns him 
very greatly because he has a constituent, Jamie Lee Jones. 
Well, actually she's from Texas. There's another constituent. 
His constituent and Ms. Jones from Texas share a story. As 
Americans, they traveled abroad. They were paid--what's the 
word I'm looking for? Not consultants, but contractors in Iraq.
    They were working for Halliburton KBR, or Halliburton KBR 
subsidiaries. They were subjected to rape, in some cases gang 
rape. The rape kit, which was in the custody of the company, 
has evidently disappeared and the women are concerned that 
there appears to be no considerable effort of any kind to 
follow this to its proper prosecutive conclusion.
    I was wondering if you have any thoughts on where the 
Department would go. Are you familiar with the allegations 
involving illegal abuse against Americans by contractors in 
Iraq, and how would you expect to handle this as Deputy 
Attorney General?
    Judge Filip. I'm not familiar with it. Obviously, any crime 
of that nature is of the utmost gravity. I don't know. The 
judge in me would want to sort out the jurisdictional area, but 
if there was a rape within the purview of the Justice 
Department, it would have appropriate high priority to be 
prosecuted, absolutely.
    Senator Whitehouse. And I hope you would come quickly back 
to us if you felt that there was a jurisdictional problem and 
that the United States' writ did not lie with respect to an 
American overseas, where employees of an American company, who 
are also Americans, had apparently drugged and raped--allegedly 
drugged and repeatedly raped--this individual and actually held 
her in a container for 24 hours, according to her allegations, 
before she was allowed to be released back to the United 
States, which happened only because she was able to get her 
hands on a cell phone and call her Congressman, who was able to 
break through. It's a pretty sordid story. If the writ of the 
Department of Justice does not run in that situation for any 
reason, we would like to know about that right away.
    Judge Filip. Of course. Of course.
    Senator Whitehouse. Of course, the fact that Halliburton is 
an enormous contractor to the government and has been closely 
engaged with significant political figures obviously raises 
some additional hackles when evidence appears to have 
disappeared and an American appears to have been abused, when 
there appears to have been literally no effort to get to the 
bottom of it.
    Judge Filip. I understand. And if there's been any 
incidents of a rape allegation anywhere, it's a very serious 
allegation and should be pursued vigorously.
    Senator Whitehouse. I know Senator Nelson would appreciate 
that. I'm asking these questions on his behalf because of his 
really deep concern about this problem for his constituent.
    Mr. Chairman, thank you very much. I want to just close 
briefly by telling the judge that I truly wish you well, like I 
think all of my colleagues, who are very concerned about the 
present state of the Department, and we are here, available to 
listen and to work with you to do anything necessary to put the 
Department back on its feet.
    My compliments to you for having come to this position and 
being willing to assume these responsibilities. My compliments 
to your wife. Beth, for being willing to undertake all of the 
upheaval that this move will require, and my remarkable 
compliments, as the father of a 14-year-old boy, to Matthew, 
Tommy, Charlie, and Joe for having sat quietly and still 
through this long, and from their point of view very tedious, 
proceeding. But it has been very important for all of us and I 
appreciate you being here.
    Judge Filip. Thank you very much for those kind words.
    Senator Whitehouse. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    We'll take a 5-minute break. I'm just going to make sure 
that there are not other Senators who want to ask questions. 
Then within a few minutes we'll be wrapped up. We'll take a 5-
minute break, during which your four sons can run hollering up 
and down the halls if they want. Thank you.
    Judge Filip. Thank you, Chairman.
    [Whereupon, at 12:05 p.m. the hearing was recessed.]
    AFTER RECESS [12:12 p.m.]
    Chairman Leahy. I think we're going to wrap up fairly soon. 
I know Senator Whitehouse had a couple of more questions. Why 
don't I yield to you, and then I have a final question.
    Senator Whitehouse. I thank the Chairman.
    Judge Filip, these are not so much questions as they are, I 
just want to make a request to you and make a record in these 
proceedings. In addition to the proposition that the Department 
of Justice is bound by the President's legal determinations, 
there were two other legal statements that leaped off the page 
of those OLC opinions at me that I considered to be 
inconsistent with American law and constitutional structure, 
and I just want to mention them to you so you know what they 
are. I'd like to have you take a look at them once you become 
the Deputy Attorney General.
    My sense is that for a while the inmates were allowed to 
take over the asylum at OLC, and it may be time to go back and 
take a look at some of the statements that were left in these 
opinions, because as you know, OLC has a tradition of precedent 
of its own and I wouldn't want these to become the evil seed 
that grows into a true constitutional problem down the road.
    One, is this: ``An executive order cannot limit a 
President. There is no constitutional requirement for a 
President to issue a new executive order whenever he wishes to 
depart from the terms of a previous executive order. Rather 
than violate an executive order, the President has instead 
modified or waived it.''
    In my view, what that allows is for there to be a public 
executive order that purports to control a particular program 
or activity and a program or activity that is operating in 
flagrant and complete violation of that executive order at the 
same time without any disclosure ever, without going back to 
the executive order and amending it nunc pro tunc without 
anything. I don't think that is what executive orders are for. 
I don't think that's the way the American government should 
work. I think it creates an opportunity to use executive orders 
not to control government, but to mislead the American people. 
I'd like you to take a look at that one.
    The other is this one. We know there's been a mania about 
Article 2 recently. This one says, ``The President exercising 
his constitutional authority under Article 2 can--the 
President's authority under Article 2.'' You've heard the 
phrase, trying to pull yourself up by your own bootstraps? That 
seems to be an exercise in trying to lift yourself by your own 
bootstraps and it seems to fly very directly in the face of 
Marbury v. Madison, which is a fairly core decision in our 
jurisprudence.
    It is emphatically--that's the word in the case, 
``emphatically''--the province and the duty of the judicial 
department to state what the law is. So the idea that a 
President has Article 2 authority to make his own determination 
as to what his own Article 2 authority is, is a proposition I 
would like to see reexamined with cooler heads in place.
    I appreciate your attention to those two things. I'm not 
going to call you on it now, but I wanted to take this 
opportunity to put them out there as markers, because I think 
it is important to pull back from what I consider to be some 
rather extreme points of view.
    I appreciate it and I thank the Chairman for the additional 
time.
    Chairman Leahy. Thank you.
    Judge, thinking back on all the questions you've been asked 
today and the answers you have given, sort of in the area of 
torture and others, are there any answers you wish to change or 
elaborate on?
    Judge Filip. Nothing I would change. I would just say [off 
mic]--
    Chairman Leahy. I'm sorry. Could you start again?
    Judge Filip. I'm sorry. I apologize, sir.
    Chairman Leahy. That's all right.
    Judge Filip. Nothing I'd wish to change. I'd just like to 
say that I appreciate very much that we have service members 
around the world, oftentimes in very vulnerable positions. I 
understand that what we do, to use a midwestern phrase, what 
goes around comes around, and that we have to be very mindful 
of that. I also acknowledge that what we do as a Nation has 
serious consequences in terms of how we interact with other 
nations in the world, including our enemies, including our 
friends, including our historical allies, and I think that is a 
very important consideration in this area.
    And to underscore that if I am confirmed, I certainly would 
offer as frank and candid of legal advice to the Attorney 
General if he asked my views on this as I have throughout my 
career on anything else without regard to what that answer was, 
whether I thought it was something that he would find pleasing 
or not, and I would engage him in a thoughtful manner to try to 
convey my views to him.
    Chairman Leahy. I would hope, also, you would think about 
the fact that our Nation, our great Nation, has gone through 
civil war, two world wars, has tried to come out stronger and 
better each time. It's a Nation that certainly attracted my 
grandparents when they came here from Italy, and my great-
grandparents when they came from Ireland, and my wife's parents 
when they immigrated to this country.
    These ideals have allowed us a lot of slack around the 
world, and justifiably so. During the Cuban missile crisis, the 
story is told where President Kennedy wanted President Charles 
de Gaulle to be briefed on what was happening. He sent Dean 
Acheson to Paris to meet with de Gaulle. Acheson said, ``I have 
these aerial photographs that we've taken to demonstrate what 
President Kennedy has said, that the Soviet Union has placed 
missiles in Cuba. I am here to show them to you.''
    He was stopped by de Gaulle who said, ``The President of 
the United States has said that's what has happened. His word 
is good enough for me.'' That is not the reaction we would have 
today in many parts of the world. We want to get back to that. 
We also wanted to work with a lot of countries that are 
becoming democracies and to demonstrate to them, this has 
worked for the wealthiest, most powerful Nation on earth, these 
values, you do them, too.
    We see in the news the situation in Nicaragua, where an 
appeals court has said that they should release a prisoner that 
probably was falsely convicted of a heinous crime, and the 
lower court judge, because it would be unpopular, won't sign 
the orders to release him. First, the court judge said, I 
didn't get to court because I had a flat tire. Then the papers 
were miscollated, and on and on.
    It's easy for us to say, well, of course the lower court 
would have to follow such an order from their supreme judicial 
court, but we have got to be able to, in holding when our 
American ambassador or consulate goes to that government and 
says, obey your law, we don't want them to say, well, do you 
obey yours? This is a matter that is--and I don't say this as a 
partisan. I've been very proud to serve in this Senate for 33 
years. But I am very, very concerned of what I am seeing in 
this lack of trust in the United States around the world.
    I want to see it reinstated. Whether we elect a Republican 
or Democratic President next year, I hope that whoever it is 
will reintroduce this to America. You, the Justice Department, 
the Congress, all our institutions are going to have to work at 
restoring that trust. Trust, once lost, takes a long time to 
regain.
    With that, I will keep the record open should there be 
further questions, unless you have something else you want to 
say, Judge?
    Judge Filip. I'm very grateful. I appreciate that a lot of 
people here have been up very, very late and that they have 
loved ones and family members who want them home for the 
holidays. I'm very grateful for you giving me this opportunity. 
Thank you. God bless you all. Thank you very much.
    Chairman Leahy. Thank you.
    We stand in recess.
    [Whereupon, at 12:20 p.m. the committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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