[Senate Hearing 110-887]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-887

              OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                              JULY 9, 2008

                               __________

                          Serial No. J-110-104

                               __________

         Printed for the use of the Committee on the Judiciary






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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 and closing statement.....................   157
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, 
  prepared statement.............................................   154
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     3

                               WITNESSES

Mukasey, Michael B., Attorney General of the United States.......     5

                         QUESTIONS AND ANSWERS

Responses of Michael B. Mukasey to questions submitted by 
  Senators Kennedy, Kohl, Schumer, Durbin, Grassley, Sessions and 
  Coburn.........................................................    51
Additional responses of Michael B. Mukasey to questions submitted 
  by Senators Kennedy, Durbin and Grassley.......................   126

                       SUBMISSIONS FOR THE RECORD

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois, and Hon. Sheldon Whitehouse, a U. S. Senator from the 
  State of Rhode Island, Letter..................................   152
Jarrett, H. Marshall, Counsel, Department of Justice, Office of 
  Professional Responsibility, Washington, D.C., letter..........   156
Mukasey, Michael B., Attorney General of the United States, 
  Washington, D.C.:
    statement....................................................   160
    March 5, 2008, memo..........................................   196
    March 27, 2008, remarks......................................   198

 
              OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE

                              ----------                              


                        WEDNESDAY, JULY 9, 2008

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, Pursuant to notice, at 9:32 a.m., in 
room SD-106, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Biden, Kohl, Feinstein, Feingold, 
Schumer, Durbin, Cardin, Whitehouse, Specter, Hatch, Grassley, 
and Kyl.

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

    Chairman Leahy. Today we welcome Michael Mukasey back to 
the Committee for his second appearance as Attorney General. 
The Attorney General has been on the job for 8 months since 
succeeding Alberto Gonzales. He is now more than halfway 
through his term as Attorney General. And as I have told him 
privately and publicly, his tenure is going to be judged by how 
much he has done to restore the Department of Justice, an 
agency, I believe, whose mission and objectives were severely 
undercut by scandals under the Bush administration. The 
Attorney General will also be judged by what the Department has 
done--and not done--to reaffirm the checks and balances that 
are the fulcrum for our democracy and a key to protecting the 
rights and liberties of all Americans.
    When this Committee began its oversight efforts at the 
start of this Congress, we exposed a crisis of leadership and 
partisan political influence that had taken a heavy toll on the 
well-deserved tradition of independence that has long guided 
the United States Department of Justice. Senators on this 
Committee from both sides of the aisle joined together to press 
for accountability. What followed was a change in leadership at 
the Department, with the resignations of Attorney General 
Gonzales, the Deputy Attorney General, the Associate Attorney 
General, their chiefs of staff, the White House liaison, and 
the resignations of Karl Rove, his political deputies, the 
White House Counsel, and others.
    We have seen what happens when the rule of law plays second 
fiddle to a President's agenda and the partisan desires of 
political operatives. It becomes a disaster for the American 
people. Both the President and the Nation are best served by a 
Justice Department that provides sound advice and takes 
responsible action, not one that develops legalistic loopholes 
and ideological litmus tests to serve the ends of a particular 
administration, whether it is a Democratic administration or a 
Republican administration.
    The recent report from the Department's Inspector General 
confirms what our oversight efforts have uncovered about the 
politicization of hiring practices at the Department. It 
confirms our findings and our fears that the same Bush Justice 
Department officials involved in the firing of United States 
Attorneys were injecting partisanship into the hiring of young 
attorneys. I expect further reports from the Inspector General 
will shed additional light on the extent to which the Bush 
administration has allowed politics to affect--and infect--the 
Department's priorities, from law enforcement to the operation 
of the Civil Rights Division to the Department's hiring 
practices.
    As I have said many times, and I have said this in the six 
administrations since I have been here, the Department of 
Justice is not the President's legal defense team any more than 
the Attorney General is his lawyer. The Attorney General is not 
the White House Counsel and should not act as one. The 
Department of Justice is a law enforcement agency, not a 
partisan political operation. The Attorney General is the 
Attorney General of the United States, not the Attorney General 
of the President or anything else. He is the Attorney General 
of the United States, all of us. And these are the truths that 
have been overridden in the last 7 years.
    So this hearing is for the Attorney General to show us what 
he has done on each of these fronts. For example, what he has 
done to restore the independence of the Department of Justice? 
What has he done to push back against the overreaching from the 
Bush-Cheney White House, including its claims to unfettered 
power at the expense of the principles of judicial review and 
congressional oversight?
    On issue after issue, from the warrantless wiretapping of 
American citizens, to the descent into torture thinly veiled by 
the use of the Orwellian-term ``enhanced interrogation 
techniques"; from undercutting laws meant to protect clean air 
and clean water to the untoward political influence of the 
White House at the Nation's top law enforcement agency; from 
the destruction of CIA tapes showing detainee interrogations to 
grandiose claims of immunity and executive privilege from 
congressional oversight--it makes the Watergate era look like 
child's play.
    The conservative Supreme Court's recent decision in 
Boumediene v. Bush reaffirmed our core American values as a 
stinging rebuke to the Bush administration's excesses. They 
said, ``Security subsists, too, in fidelity to freedom's first 
principles. Chief among those are freedom from arbitrary and 
unlawful restraint...''
    These principles of checks and balances and of the rule of 
law are what this administration and a previously complicit 
Justice Department have ignored--that our fundamental adherence 
to our Constitution and the rule of law is a strength. And no 
one--not even the President--is above the law. The Justice 
Department owes loyalty to the law.
    The Attorney General repeatedly assured us during his 
confirmation hearing that he would take a fresh look at the 
secret memos. He committed to this Committee that he would 
review them. These are the secret legal memoranda that sought 
to define torture down to meaninglessness and excuse 
warrantless spying and justify absolute immunity of White House 
employees from congressional subpoenas without reference to a 
single legal precedent. The Attorney General committed to this 
Committee to review them and withdraw or modify those that were 
unjustified or unwise. Even Attorney General Gonzales did that. 
He withdrew the August 2001 Bybee memo justifying torture when 
it came to light, coincidentally just before his confirmation 
hearing in 2005.
    So we look forward finally to obtaining these memos--to 
obtaining even the index of these memoranda--that we have been 
denied for years. Today we look forward to learning which 
aspects of what memos that have formed the legal framework for 
the Bush administration's policies have been modified or 
withdrawn by the Attorney General.
    This Committee has a special stewardship role to protect 
our most cherished rights and liberties as Americans, and to 
make sure that our fundamental freedoms are preserved for 
future generations. I believe the path taken during the last 7-
1/2 years has been one that has disregarded basic rights and 
turned us from a Nation devoted to the rule of law to one ruled 
by secret pronouncements of the executive.
    I will put my full statement in the record and yield to 
Senator Specter.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]

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

    Senator Specter. Thank you, Mr. Chairman.
    I join the Chairman in welcoming you here, Attorney General 
Mukasey, and in noting the significant improvements in the 
Department of Justice since you have taken over. We are 
considering of the Senate floor today the Foreign Intelligence 
Surveillance Act, and it is an opportunity for Congress to 
finally assert some authority and try to move for separation of 
powers to try to check the unparalleled expansion of executive 
authority, which we have noticed since 9/11. I believe that 
historians will look back at this period as the greatest 
expansion of executive authority that has gone unchecked by 
Congress and significantly unchecked by the courts.
    We have had a challenge to the constitutionality of the 
Foreign Intelligence Surveillance Act. A Detroit Federal court 
held it unconstitutional. The Sixth Circuit reversed on 
standing grounds in a 2-1 decision, and the Supreme Court in 
effect ducked the case, denied certiorari, when there were 
ample grounds to take it up, as noted in the very persuasive 
dissenting opinion on standing. And now the Congress is being 
asked to strip the Federal courts of some 40 cases which are 
pending for determination of the constitutional rights of 
people who have been allegedly wiretapped by the telephone 
companies without court order.
    As I have argued on the floor--and I have an amendment 
pending--it is especially unfortunate because we could keep 
both the surveillance program and have judicial review if we 
substituted the Government as a party defendant. But the 
Attorney General has a significant role to play in this overall 
issue in terms of advice to the President.
    I was very much impressed when you said in your 
confirmation hearing that if the President did not follow your 
advice on constitutional issues, the matter of resignation 
would be foremost in your mind. The President violated the 
National Security Act of 1947 in not notifying the Intelligence 
Committees of the Terrorist Surveillance Program, a firm 
statutory duty. He could have used some good advice on that 
point. He did not notify the Chairman or Ranking Member of the 
Judiciary Committee, longstanding protocol. I was Chairman at 
the time in arguing for the PATRIOT Act on a Friday in mid-June 
of 2005 when the New York Times story dominated all of the 
substantive arguments, and we could not get the Act passed. 
Senators said that had they known about this Terrorist 
Surveillance Program, they would not have been for the bill. So 
there are very important issues on separation of powers.
    There are a number of matters that I will be discussing 
with you during the question-and-answer session, as I told you 
in our telephone conversation earlier this week. The matter of 
the attorney-client privilege is very, very significant. I have 
a bill pending which would change what the Department of 
Justice is doing because of two very fundamental constitutional 
privileges: one is the attorney-client privilege, which 
necessarily involves confidentiality; and the second is the 
burden of the Commonwealth or the State to prove its case.
    When I was a prosecutor, I would not have thought of asking 
someone to waive their privilege, and yet that is being done 
here. And it may be in the corporation's interest to waive the 
privilege to have a reduction in charges or a reduction on 
sentencing. But there are individuals who have that privilege 
within the corporation who ought not to be coerced into waiving 
the privilege.
    And let me say to you candidly, Mr. Attorney General, that 
the discussions have gone on too long--the Thompson memo, the 
McNulty memo, now the Deputy Attorney General is preparing a 
new memo. I talked to him 2 weeks ago. It is vague as to when 
it is to be completed, and I hope that the Chairman will bring 
this matter before the Committee so we can move ahead on the 
legislative channel.
    Similarly, we need to bring the discussions to a head on 
reporter's privilege. We find that there is a decisive chilling 
effect on newspaper reporters across the country for what 
happened with Judith Miller and what is happening with other 
reporters--still an enigma to me as to why she spent 85 days in 
jail. It was not a very pleasant stay she had there. I know 
because I visited her in December of 2005. Why was she held in 
contempt when we knew that Deputy Secretary of State Armitage 
was the source of the leaks? That still has not been answered.
    But rather than looking backward, I think we need to look 
forward and see to it that there is an appropriate balance. And 
the legislation has national security exceptions, and if there 
are other matters which need to be resolved, let's sit down and 
try to get them worked out because in our society we do not 
have to talk about the importance of the media. Jefferson's 
statement still rings true. If he had to choose between 
Government without newspapers or newspapers without Government, 
he would choose the newspapers. It may be a close call these 
days, but I feel the newspapers are still in the lead 
considering what is happening with the expansion of executive 
authority.
    One final point, and that is on a matter that I raised with 
the Director of the Federal Bureau of Investigation about a 
leak in the case involving Congressman Curt Weldon, which 
occurred a few days before the 2006 election, which was the 
direct defeat of a very distinguished Congressman who had held 
office for some 20 years. They had a search and seizure on his 
daughter's home, and there was a leak. Newspaper reporters were 
there in advance. And I asked Director Mueller about that back 
in December of 2006, and I did not get an answer, and it was 
buried in the FBI's written responses to written questions. 
Well, there is a difference when there is a question posed in a 
hearing by a Senator than when its staff work in written 
questions.
    And then at another hearing, I raised it on March 5th of 
2008, and I heard nothing more until I got a reply from a 
subordinate on June 13th of this year that it had been punted 
over to the Department of Justice. And I wrote a pretty hot 
letter to Director Mueller, which I ask unanimous consent be 
included in the record.
    Chairman Leahy. Without objection.
    Senator Specter. And the ball is now in your court, Mr. 
Attorney General. But leaks are intolerable. When leaks are 
made, they frequently involve national security, and those 
leaks are investigated and the culprits are found. And if the 
leak was in the FBI, the investigation ought to be just as 
intense. And this Committee expects a briefing, and this 
Committee expects action. And Congressman Weldon does not have 
any rights any higher than anybody else, but his rights are no 
lower than anybody else's. And we are entitled to an answer.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Mr. Attorney General, please stand and raise your right 
hand and repeat after me. Do you solemnly swear the testimony 
you will give in this matter will be the truth, the whole 
truth, and nothing but the truth, so help you God?
    Attorney General Mukasey. I so swear.
    Chairman Leahy. Thank you. Please go ahead, sir, and, 
again, we welcome you from both sides of the aisle. We are glad 
you are here.

 STATEMENT OF HON. MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE 
                         UNITED STATES

    Attorney General Mukasey. Good morning, Chairman Leahy, 
Senator Specter, and members of the Committee. Thank you for 
the opportunity to testify today.
    Since I appeared before the Committee six months ago, I 
have become even better acquainted with the talented and 
dedicated professionals at the Justice Department and with the 
work that they do. And I have come to appreciate that much more 
deeply their service to the Nation.
    I have now been Attorney General, as you pointed out, for 
eight months and there are slightly less than seven months 
remaining in this Administration. I would like to outline 
briefly two areas that I intend to focus on during that time.
    First, as everyone knows, the election season is upon us. 
Although State and local governments have primary 
responsibility for administering elections, the Department must 
make every effort to help assure that those elections run as 
smoothly as possible and, equally important, that the American 
people have confidence in the electoral process. The Department 
will maintain a significant presence throughout the election 
season through both outreach and monitoring. We are going to 
work closely with civil rights groups and State and local 
elections officials to identify and to solve problems. We are 
going to publicize telephone numbers and websites through which 
people can bring potential issues to our attention. And on 
Election Day, we are going to deploy hundreds of observers and 
monitors around the country.
    Those steps will supplement our ongoing enforcement 
efforts. Using the Voting Rights Act and other laws, as the 
Department has done and will continue to do, it will do its 
part to guarantee access of all Americans to the ballot.
    The Department will also continue its efforts to safeguard 
the integrity of elections by combating campaign finance abuse 
and voter fraud. All of these efforts are essential in ensuring 
that the elections reflect the will of the people and in 
maintaining the confidence of all Americans in our system of 
Government. In all of this, we will be driven by what the law 
and the facts require, and only by that.
    Earlier this year, I issued a memorandum to remind all 
Justice Department employees of policies regarding election 
year sensitivities. The message of that memorandum, which I 
reiterated in a speech to our lawyers and agents involved in 
election cases last week, was simple: Politics must play no 
role in our efforts.
    Second, once the November elections are over, there will be 
the vitally important task of making an orderly and safe 
transition to a new Administration. As part of that transition, 
we will take every step to transfer smoothly custody and 
responsibility for our Nation's security to a new set of 
caretakers. We must ensure that all of our country's security 
measures are attuned to the increased risk we face during this 
time of transition and that we respond and adjust 
appropriately.
    It is also important that we do everything we can to give 
our national security professionals who will be confronting the 
al Qaeda threat well after this Administration is over the 
tools they need to help keep us safe, and it is my sincere hope 
that the Senate will take a vital step today by passing the 
bipartisan FISA compromise that passed the House by a wide 
margin before the 4th of July recess.
    I am also working closely with the Director of the FBI to 
continue the transformation of the Bureau into a world-class 
intelligence agency. That goal involves developing new ways to 
recruit, train, and provide career paths for those who wish to 
devote their careers in the Bureau to intelligence collection 
and analysis. I am also reviewing the guidelines governing the 
FBI's conduct of criminal and national security investigations 
with the objective of harmonizing them in a way that gives the 
Bureau's professionals clear and consistent rules for 
conducting investigations while maintaining vital civil 
liberties protections.
    Before I end, let me briefly address a topic that several 
of you raised with me in advance of this hearing, namely, 
allegations that have been made about the politicization of the 
Justice Department.
    I take those allegations with utmost seriousness. As I have 
said many times to members of the public and to Department 
employees, it is crucial that we pursue our cases based solely 
on what the law and the facts require and that we hire career 
people without regard to improper political considerations. It 
is equally crucial that the American people have complete 
confidence in the propriety of what we do. My promise to you is 
that I have done and I will continue to do what I can to ensure 
that politics is kept out of decisions about cases and out of 
decisions about career hiring at the Department of Justice.
    Mr. Chairman and members of the Committee, I look forward 
to your questions, and, again, I thank you for allowing me to 
make this opening statement.
    [The prepared statement of Attorney General Mukasey appears 
as a submission for the record.]
    Chairman Leahy. Thank you, Mr. Attorney General.
    Among the most disturbing aspects of these last 8 years has 
been the Justice Department's role in enabling some of the 
worst of the Bush administration's executive power 
overreaching. They have enabled it by using secret memos from 
the Department's Office of Legal Counsel, the so-called OLC.
    Now, in my years here in the Senate, we have always seen 
the OLC as a place to provide impartial, independent 
interpretations of the law that bind the executive that affect 
people's lives. So along the lines of when I was a young law 
student and along with others being recruited by the then 
Attorney General Robert Kennedy, who told us all very intently 
that nobody, not even the President, could interfere with the 
independent analysis of the law done by the Department of 
Justice.
    But often in recent years, we have seen issued from 
defining torture down to meaninglessness or excusing 
warrantless wiretapping to absolute immunity of White House 
employees, all these legalistic loopholes that come from OLC. A 
few that we have seen are disturbing in their disregard of the 
rule of law. They basically say that the President stands above 
the law.
    Now, at your confirmation hearing, you committed to this 
Committee, to a number of us, in answering questions from 
Senator Kohl, Senator Schumer, Senator Durbin, and me, that you 
would review these OLC opinions and you would withdraw those 
you considered without legal justification. You said you would 
do a review on warrantless wiretapping, interrogation policies, 
executive privilege. You said this without any reservation or 
limitation. And we thought that you were going to step forward 
and do just that.
    But in your answers to my written questions--and these were 
answers we got 6 months after the hearing, and only as this 
hearing was schedule--you said that you have only reviewed 
opinions regarding currently authorized CIA interrogation 
programs. You do not find it necessary to review any others. 
That appears that you have gone back on the commitment you made 
to this Committee to conduct a review of all these OLC 
opinions. Why have you done that?
    Attorney General Mukasey. Respectfully, I don't think I 
went back on my word. I think I went back--I think what I said 
I would do was to review OLC opinions that related to then 
current interrogation programs. I did, and I came back and said 
that those programs were in line with the law as I saw it, as 
it was explained in those OLC memos, and I stand by that.
    I have since reviewed all significant OLC memos that were 
issued subsequently with a view toward assuring that they are 
consistent with the law. This Committee--I am sorry.
    Chairman Leahy. No, no. Go ahead.
    Attorney General Mukasey. This Committee has received, I 
think, unprecedented review of OLC memoranda relating to both 
interrogation and electronic surveillance. It has received an 
opportunity to review the entirety, as I understand it, of the 
OLC memoranda with regard to electronic surveillance. And it 
has also received--in redacted form, to be sure--OLC memoranda 
relating to interrogation techniques, at the same time that the 
Intelligence Committees of both Houses have received unredacted 
copies of those memoranda.
    Chairman Leahy. Well, I beg to differ with you a little bit 
on that, because when we asked the questions--and Senator Kohl 
and Senator Schumer and others can speak for themselves. But 
when we asked the questions, it was not with the limitation of 
just current ones. We were asking what led us to this, because 
for 7 years OLC opinions were allowing wiretapping, which has 
now been found not to be legal, allowing torture, which was 
found not to be allowed. All of these things, and it is not 
just the current ones, because these other OLC opinions are 
still there. There are a lot of OLC opinions that guide 
everyday activities of the administration, that will guide not 
only this administration but the next administration. To the 
effect that they have been referenced by the administration, 
they speak of an overreaching power of the President, something 
I am not willing to give to any President, Democratic or 
Republican.
    So just simply reviewing the current ones I do not think is 
enough. Can you make then--if you are not going to review those 
that were used in the past, such as those on waterboarding, 
will you make them available to this Committee so that we can 
make our own review as to their legal basis?
    Attorney General Mukasey. I think that OLC opinions 
relating to wiretapping, to the extent that they may speak to a 
program that has already been brought within the Protect 
America Act, don't have a current bearing. I can't make a 
commitment simply to open the drawers of OLC and expose them to 
this Committee, nor do I think it would be responsible for me 
to do that. One of the things--
    Chairman Leahy. Mr. Attorney General, my point is it is 
the--I am not talking about operational things, and Senator 
Specter and I have been briefed on the operational aspects. We 
are not going to go into that here. What I am talking about are 
the opinions and the legal reasoning that basically said the 
President could ignore laws, could step above the law, or had 
some inherent authority not to follow the law. And the 
operational parts will change, of course, and I expect the 
operational things will be--as we have been briefed, are going 
on now.
    What I am concerned about are those parts of the memoranda 
that there is this inherent ability of a President not to obey 
the law. Would you give us at least a listing of the OLC 
memoranda that you have decided not to review and a list of the 
OLC memoranda and opinions that remain in force?
    Attorney General Mukasey. I think I have an obligation to 
assure that decisionmakers continue to come forward and ask for 
advice without fear that if they come forward and ask for 
advice, all of their requests are going to become the subject 
of examination later on, just as I have an obligation to make 
sure that the people who give the advice can give it candidly. 
For me to give an index of all OLC opinions, regardless of 
whether I have reviewed them or not, I don't know would serve 
anybody's interest.
    As I said, I have reviewed all--
    Chairman Leahy. So your answer is no.
    Attorney General Mukasey. My answer is qualified.
    Chairman Leahy. When the qualification is no, that is an 
answer. My time is up. I am going to try to keep to the time, 
and I will come back to the subject.
    Senator Specter.
    Senator Specter. Thank you, Mr. Chairman.
    Attorney General Mukasey, the National Security Act of 1947 
mandates that the President inform the Intelligence Committees 
of both Houses on a program like the Terrorist Surveillance 
Program. The President did not follow that law for years, then 
finally, piecemeal, told some of the Intelligence Committee 
members and then others when he needed confirmation of General 
Hayden as Director of the CIA.
    Did the President's powers as Commander in Chief under 
Article II justify his violating the National Security Act in 
not appropriately informing the Intelligence Committees?
    Attorney General Mukasey. Senator, the Terrorist 
Surveillance Program, as you know, was brought under the 
Protect America Act. It is now--the President has said he has 
all the authority that he needs. And--
    Senator Specter. Well, I am not talking about now. I am 
talking about what happened after 9/11 when the President 
disregarded the statute.
    Attorney General Mukasey. I think what happened after 9/11 
was a matter of debate between the branches. The President took 
the view that Congress could not, by statute, limit the 
inherent authority of Article II. This Committee--
    Senator Specter. So the President was right in not 
notifying the Intelligence Committees?
    Attorney General Mukasey. I am not a court. What I am 
qualified to--
    Senator Specter. Now, wait a minute. You are not a court. I 
know that. You are the Attorney General. You give opinions on 
constitutional law. You are the man who sat there and said if 
he ``didn't follow my advice, I wouldn't serve him.''
    Attorney General Mukasey. My advice did not pertain to 
matters that preceded my arrival. After my arrival, the 
Terrorist Surveillance Program was brought within the Protect 
America Act. We are trying to get FISA passed today. What we 
are trying to do is give the intelligence-gathering authorities 
what they need in order to gather intelligence and at the same 
time give necessary--
    Senator Specter. Attorney General Mukasey, rather than 
fence for several minutes, with very limited time, would you 
give some study to the issue and give us a considered response 
on whether the President's authority extended that far?
    Let me move on to the question of the attorney-client 
privilege. Where you have the constitutional right to counsel, 
which we all agree involves confidentiality, and where you have 
a clear-cut, historic obligation of the Government to prove its 
case, what is the justification for coercing a waiver of the 
attorney-client privilege? That is what happens in real life. 
In the KMG case where the Federal court in the Southern 
District of New York has found excesses by the Government, 
where you have a clear-cut conflict of interest between the 
corporation which is being asked for a waiver and the 
individual employee who may have contractual rights to counsel, 
what is the justification? Can you parse it, as the Thompson 
memo does and the McNulty memo, that if it is a fact question, 
it is decided by the Assistant Attorney General; if it is an 
opinion or judgment question, it is decided by the Deputy 
Attorney General? Isn't the attorney-client privilege so 
valuable that we should not tamper with it by what has worked 
out to be coercive waivers of the privilege?
    Attorney General Mukasey. Well, I think we share the belief 
as former prosecutors and me as a former judge that the 
attorney-client privilege is vital to clients getting advice 
from their lawyers. I think also we share the view that it 
should not be tampered with or coerced out of existence. And I 
understand that you visited with the Deputy Attorney General 
and that he is going to be sending you a letter that will 
include real significant proposed changes.
    Senator Specter. How soon?
    Attorney General Mukasey. Within a day or so.
    Senator Specter. Will we have a memo that we can work from 
to get your position? Because I know--
    Attorney General Mukasey. Yes.
    Senator Specter. Your public statement was that you are 
satisfied with the McNulty memo. Are you satisfied with the 
McNulty memo?
    Attorney General Mukasey. I think my public statement was 
that the McNulty memo could be used in a proper way. There is 
no such thing as a memo that achieves perfection. And there are 
adjustments in the McNulty memo that can and will be made, and 
the Deputy proposes to make them. In particular, we will no 
longer measure cooperation by waiver of the attorney-client 
privilege.
    Senator Specter. Well, are we going to get more than a 
letter? Are we going to get a memo that we can work from to try 
to see if we could resolve this on a compromise and 
accommodation? Or are we going to have to move forward to 
legislate?
    Attorney General Mukasey. I think what is going to happen 
is a letter that is going to be used, that can be used to 
prepare a memorandum, that can--
    Senator Specter. Well, when will we get the memorandum?
    Attorney General Mukasey. You will get the letter within a 
couple of days. The letter can be the subject of discussions 
that may very well produce a memorandum in short order.
    Senator Specter. Well, the shorter the order, the better, 
because it is a matter percolating and affecting a lot of 
people.
    Attorney General Mukasey. It does, and I do not minimize 
it. I think that we have tried to strike the balance with the 
McNulty memo. If we haven't and there are ways to improve it, 
then we are bound and determined to improve it. And I think 
that letter will show that we are.
    Senator Specter. Moving to reporter's privilege in the 
limited time left, Attorney General Mukasey, what was the 
justification for keeping reporter Judith Stern in jail for 85 
days when the source of the leak was known to be Deputy 
Attorney General Richard Armitage?
    Attorney General Mukasey. Well, as you know, I was not on 
duty when that case came to the fore, and it is my own view 
that that case may very well be a better argument against a 
Special Counsel than it is in favor of legislation of the sort 
that has been proposed.
    I think that--
    Senator Specter. Well, I am not prepared to deal with the 
Special Counsel because he is not here. If I had Senator 
Leahy's gavel, I would have brought him in here a while ago, 
once the case was finished. But it is very germane in 
evaluating public policy on whether the Department of Justice 
ought to have the authority to issue a subpoena in the context 
and move for a contempt citation and hold a reporter in jail 
for 85 days under very unpleasant circumstances. I can attest 
to that firsthand. I went to visit her.
    Attorney General Mukasey. There is no such thing as jail 
under pleasant circumstances. It is an inherent contradiction. 
And it is something that, therefore, we use as a last resort 
and will continue to use as a last resort.
    Senator Specter. Well, why do you need a resort when you 
know the leak? When you know who the leaker is, why go after a 
reporter and keep her in jail?
    Attorney General Mukasey. As I said, that was not--
    Senator Specter. I know that would be better addressed to 
the Special Counsel.
    Attorney General Mukasey. It would.
    Senator Specter. Someday we may have an opportunity to do 
that, but right now you are all we have got, Attorney General 
Mukasey, and you are the guy who is pushing the policy. So I 
think it is a fair question to say to you, Why maintain a 
policy which gives whoever the prosecutor is the power to do 
that when you know who the leaker is?
    Attorney General Mukasey. We do not give that power to a 
prosecutor for precisely that reason. We require a clearance up 
through and including the Attorney General of the United 
States.
    Senator Specter. The Attorney General of the United States 
is a prosecutor.
    My time is up and I will desist. We will revisit these 
issues, doubtless. I just want to say I have to excuse myself. 
We have the Foreign Intelligence Surveillance Act on the floor, 
and I have an amendment pending. So I am going to have to 
excuse myself.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, and I will be coming over to 
speak on the amendment, too. I am going to yield next to 
Senator Biden. At one point I will be stepping out, too, but we 
will keep the hearing going when I go out.
    Senator Biden.
    Senator Biden. General, I saw your shoulders sag when the 
Senator said he had to leave. I am sure it disappoints you. He 
has to go to the floor.
    [Laughter.]
    Attorney General Mukasey. It does.
    Senator Biden. Well, let me tell you, I think he is the 
best questioner here. I would like him to have an hour with 
you. I think we would learn a lot. I would like to ask a few 
questions. I will try to be as crisp as I can. If your answers 
could be as crisp as they are fair, I would appreciate it.
    You indicated that you have worked to see to it that the 
Department is not politicized any longer--you did not say ``any 
longer''--that it is not politicized. I have one simple 
question. Did you find it had been politicized when you 
arrived? You do not have to give me an explanation. Just yes or 
no.
    Attorney General Mukasey. Did I find it?
    Senator Biden. Yes, did you. You said you came in, took a 
look--
    Attorney General Mukasey. The IG found it.
    Senator Biden. Yes, but what did you think? It is amazing. 
You act like you float above up in the ether somewhere.
    Attorney General Mukasey. I don't float above the ether.
    Senator Biden. Well, what did you find?
    Attorney General Mukasey. What I found--
    Senator Biden. What did you, the Attorney General, find?
    Attorney General Mukasey. What I found were enormously 
dedicated people who were very committed to my succeeding.
    Senator Biden. That is not my question. Did you find that 
some of those enormously dedicated people engaged in 
politicizing the administration of justice?
    Attorney General Mukasey. No.
    Senator Biden. That was my question.
    Attorney General Mukasey. No. Otherwise, I would not 
characterize them as ``enormously dedicated.''
    Senator Biden. Well, that is amazing. So you disagree with 
the IG report?
    Attorney General Mukasey. I do not disagree with the IG 
report. The IG report criticized a number of people, two of 
whom are no longer there, two of whom are there having endured 
criticism.
    Senator Biden. But did you think the criticism was 
justified?
    Attorney General Mukasey. Yes.
    Senator Biden. You know, you belong in the State 
Department, man. We could use you up in, you know, the Foreign 
Relations Committee. You sound like a State Department guy. You 
would make a heck of a diplomat, because I--so you would--and 
the answer is you did find that it had been politicized and 
that you, in fact, have changed that?
    Attorney General Mukasey. No. I found that the IG report 
reflected that two people currently employed by the Department, 
one of whom is no longer in the job that he was in, had failed 
to respond with sufficient alacrity to charges of 
politicization. That is very different from saying that I found 
a politicized Department.
    Senator Biden. I did not say politicized. I said had there 
been--at any rate, I am just trying to get a sense of how you 
think. I mean, you really are an enigma to me, and I do not 
mean that as a compliment or an insult. I just find it very 
difficult to understand you. And like I said, I am used to 
talking to a lot of diplomats. You know, they are really hard 
to understand.
    Well, let me get right to it. Are you supportive of 
restoring the Byrne grants and the JAG grants and the cuts that 
have occurred to local law enforcement? Or do you think they 
are unnecessary programs?
    Attorney General Mukasey. I don't think that any program 
that achieves results is unnecessary. What I do favor is, 
particularly in the budgetary times that we are in, focusing 
our energies and our assets where they can do the most good, 
and that is what we have tried to do.
    Senator Biden. And you think the Byrne grants are not at 
the top of that list?
    Attorney General Mukasey. There are Byrne grants. There are 
other grants. Putting one thing at the top of the list as 
opposed to another is not generally my way.
    Senator Biden. Well, that is a requirement. It is called 
prioritization. That is what Attorney Generals do.
    Attorney General Mukasey. Prioritization is in terms of 
results.
    Senator Biden. Well, let me ask you then: Do you think 
Byrne grants do not product the results?
    Attorney General Mukasey. I think that what produces 
results are task force programs that we have had in place to 
lower gang and gun crime, of which grants to State and local 
agencies are a part. Our own--
    Senator Biden. But they are not Byrne grants, and you have 
eliminated the Violent Crime Task Forces--necessarily, I would 
argue. The FBI is overstretched. The FBI had to reallocate a 
significant portion, roughly 10 percent, maybe a little more, 
of its entire personnel to deal with security issues. The 
administration did not replace those agents. I have been 
pushing to add 1,000 FBI agents, total number, because of the 
necessary requirement that they be taken off State and local 
cooperation in these task forces, and there has been resistance 
to that. Also, then you come along--not you personally, but the 
administration comes along and cuts programs that have been 
universally viewed through administrations Democratic and 
Republican as vital to helping local law enforcement, 
particularly the Byrne grants and the JAG grants. You have 
eliminated those.
    Here is my question: Is it based upon the lack of efficacy, 
or is it based upon what if--my friend and I from Arizona once 
had a discussion about the COPS program. He is one of the 
smartest guys I know in the Senate, and he like many argued--
and I mean this sincerely--that it is not the role of the 
Federal Government to assist local law enforcement, that it is 
about devolution of power, that local law enforcement is local, 
and there is a philosophic objection to the Biden--to the crime 
bill that says that we are going to provide billions of dollars 
to local law enforcement because it is essentially a local 
responsibility and we should not do it.
    So is the objection that they are not efficacious? Or is 
the objection they are not high enough a priority? Or is the 
objection philosophical?
    Attorney General Mukasey. The objection--there is no 
philosophical objection to helping local law enforcement 
because local law enforcement is part of solving the same 
problem we solve.
    Senator Biden. But you understand there is a giant debate 
in this town, in this country about that issue, so I am glad to 
hear you do not think it is philosophical. A lot of people do.
    Attorney General Mukasey. Not for me.
    Senator Biden. Good. Okay.
    Attorney General Mukasey. Not for me. We have $200 million 
for the fiscal year 2009 budget in violent crime reduction--
violent crime reduction partnership. We have $200 million in 
Byrne grants. We have $2 million in child safety and juvenile 
justice and $200 million in violence against women programs. 
Those are going to be allocated in the most effective way that 
we can through what might be termed a ``competition system,'' 
but the competition is going to be based not simply on people's 
ability to write grant applications but, rather, on their 
ability to use those funds in conjunction with our own efforts 
to have an effect.
    Senator Biden. Well, I was under the impression, because I 
have followed this longer than you have, or anyone here, and I 
have found them to be very efficacious. I have never heard 
anybody argue that they are being allocated not based on 
results, they are being allocated based on some system that 
needs to be fixed.
    But my time is almost up. Maybe we will get a chance to 
come back to this.
    The Senator from Illinois and I have slightly different 
bills, but we both have been very concerned about this notion 
of fugitives. There are between 800,000 and 1.6 million 
outstanding felony warrants out there out of 1.9 to 2.7 million 
State felony warrants that are not in the FBI's national data 
base. And in addition to that, States, as you know, your 
Justice Department is reporting to you, have refused to 
extradite fugitives across State lines because they do not have 
the money. And so slightly different approaches, but the 
Senator and I each have separate bills coming along saying that 
we want to provide additional moneys for the U.S. Marshals 
Service and moneys for the State and local agencies to be able 
to pick up these fugitives. I mean, I will not--I do not have 
the time, and there is no need to go through the detail, but 
the bottom line is there are rapists who are not being sent 
back across State lines because they do not have the money, 
people are being let go, et cetera.
    Do you subscribe to the notion that this is something that, 
if we can come up with the dollars, this is something that the 
U.S. Marshals Service needs additional resources to be able to 
assist in?
    Attorney General Mukasey. I think that additional 
resources--that resources are needed to help update the 
database that allows warrants to be put into the database to be 
used for round-ups. I think the Marshals Service has conducted 
sweeps that have resulted in the pick-up of enormous numbers of 
fugitives, and I favor anything that can help them.
    Senator Biden. Well, great, because I--I realize my time is 
up, Mr. Chairman. The U.S. Marshals Service indicates to us 
that they are really strapped. They just do not have enough 
personnel. But I will come back to that. I thank you for your 
time.
    Thank you, Mr. Chairman.
    Chairman Leahy. We will come back. Thank you.
    Senator Hatch.
    Senator Hatch. Well, thank you, Mr. Chairman. Welcome, 
General. We appreciate having you here before the Committee.
    Your prepared statement noted that some of the positions in 
your leadership team have been filled, and I am one sure glad 
for that. It is hard to run the Department if you cannot get 
people to serve with you in the Department. And you and the 
Department need a complete leadership team, and that need does 
not change according to the election cycles or the political 
calendar.
    Some of my colleagues on the other side once insisted not 
only that the Department needs new leadership, but it needs 
Senate-confirmed leadership. However, some important positions 
still remain vacant, and in my judgment, there is really no 
excuse for that, and I want to highlight one of them. Grace 
Becker was nominated last November to head the Civil Rights 
Division, and this Committee held a hearing 4 months ago. Then 
she was given hundreds of written questions. In my opinion, I 
think she was treated outrageously for someone who served right 
here on the Judiciary Committee itself and everybody knows is a 
decent, honorable, good person.
    Now, this is a nominee we all know well, someone we all 
know to be a person of integrity, diligence, intelligence, and 
compassion. And I know that she is today heading the Civil 
Rights Division in an acting capacity, but she should have been 
confirmed unanimously a long time ago. And I just wanted to get 
that on the record.
    Now, General Mukasey, let me start my--
    Chairman Leahy. If the Senator would yield on my time, we 
are still waiting for her to answer her followup questions, 
and--
    Senator Hatch. Well, we will encourage her to get those in, 
and I hope that you will call her up and give her the--
    Chairman Leahy. It would help if she would answer the 
questions.
    Senator Hatch. Well, I think asking 200 questions the way 
they did is not exactly kosher, either. But they have a right 
to do it, and I will acknowledge that.
    General Mukasey, let me start my questions by following up 
on a topic I raised at your confirmation hearing last October. 
At that time, I described the concern of many that in enforcing 
the obscenity laws, the Justice Department is targeting too 
narrow a range of obscene material. The most extreme material 
may make a conviction more likely, but that conviction has 
little impact on the overall obscenity industry. And as I said 
then, I believe that the strategy is misguided.
    Now, you agreed personally to review and consider changing 
this strategy. I hope you have had an opportunity to conduct 
that review and that you will share your conclusions with the 
Committee, if you can.
    Attorney General Mukasey. I think what we try to do is to 
bring those cases that we can win and those cases that are 
going to have the greatest impact on removing obscene materials 
which degrade our society and depict behavior that we think is 
disgraceful. We have done that. We have had a recent conviction 
in Tampa of a large-scale producer of this kind of material. We 
want to do it in a targeted efficient way, and we want to do it 
in a way that will have the most effect.
    What we don't want to do is--as you know, there is a 
tolerance for this in the courts. We don't want to bring 
prosecutions that will have the effect essentially of making 
more tolerated the kind of material that we think ought to be 
stamped out. So we pick our targets carefully. We pick them so 
as to have the greatest effect. And we bring vigorous 
prosecutions.
    Senator Hatch. I appreciate that.
    Attorney General Mukasey. The Child Exploitation and 
Obscenity Section is involved in that, and the Criminal 
Division is involved in that.
    Senator Hatch. Okay. The Department's Inspector General 
recently issued a report looking at hiring practices in the 
Department's honors and summer law intern programs, and one 
thing that stands out in that report is that Peter Keisler 
strongly objected to even the appearance that politics might 
enter into hiring decisions. Now, I highlight this because Mr. 
Keisler has been waiting for more than 2 years for this 
Committee to act on his nomination to the U.S. Court of Appeals 
for the D.C. Circuit, and by anybody's measure, he is a highly 
qualified person for that job. Even the New York Times and 
Washington Post praise him and endorse his nomination.
    Now, he was serving as Acting Attorney General when you 
took over last November. He had served in the Department of 
Justice since June of 2002 as a Principal Deputy and Acting 
Associate Attorney General and as Assistant Attorney General 
for the Civil Division.
    Please give the Committee your insight, your perspective on 
Mr. Keisler's service at the Department and his overall fitness 
for the Federal bench.
    Attorney General Mukasey. I have to tell you that my only 
regret about Peter Keisler is that his tenure and mine 
overlapped for only 13 days. I worked with him closely before 
confirmation. I worked with him after confirmation. I have 
spoken to him since. I have met a lot of people in my time who 
are suited to be Federal judges. I don't think there is anybody 
that I could name who has more intellectual and personal 
qualities that suit him for the Federal bench than Peter 
Keisler. He is one of nature's noblemen, and I say that without 
diminishing the quality of the other people that I have met, 
both people who serve on the bench and people who are 
candidates for the bench. He is in a separate category. He is 
absolutely outstanding. He is in the same--you delivered a 
speech after the retirement of Paul Clement. He is a person in 
that category, if the category can include more than one 
person.
    Senator Hatch. Well, thank you.
    As you know, the Supreme Court recently recognized that the 
Second Amendment to the Constitution protects an individual's 
right to possess firearms for self-defense in the home. Now, it 
never ceases to amaze me how some people claim to see all sorts 
of unwritten rights in the Constitution but apparently cannot 
see the ones that are expressly written there as plain as day. 
They want to read between the lines, but refuse to read the 
lines themselves.
    Now, I for one am glad the Supreme Court finally recognized 
this fundamental right, and I want to ask you about how the 
decision will be implemented. The Court rejected the 
administration's argument that the case should be remanded to 
the lower court for application of the lower standard of 
review. But the Court did say that its decision does not 
necessarily cast doubt on longstanding prohibitions on certain 
types of firearms or possession of firearms by certain 
individuals.
    I assume you and others at the Department have been 
studying that decision, and I would welcome your thoughts on 
how you think it impacts current Justice Department policy or 
Federal statutes that are currently on the books.
    Attorney General Mukasey. We have been studying the 
decision. I think the decision is consistent with the 
Department's express view that the right is a personal one. It 
is also consistent with the Department's view that it should 
not and does not interfere with the ability of the Federal 
Government to enforce existing firearms laws, including 
restrictions on the nature of certain firearms, including 
restrictions on the possession of firearms by felons and people 
who are otherwise unsuited to carry them, and including 
restrictions on where they can be carried. That decision 
explicitly in some instances is entirely consistent with the 
continued enforcement of Federal firearms statutes, and we have 
no hesitation in saying that, and we have no trepidation in 
that regard.
    Senator Hatch. Well, thank you. My time is up.
    Chairman Leahy. Thank you very much.
    Senator Kohl.
    Senator Kohl. Thank you, Mr. Chairman.
    Mr. Attorney General, a report in the Los Angeles Times 
last week highlighted the fact that the Office of Professional 
Responsibility has been conducting investigations into 
allegations of improper conduct by lawyers in the Justice 
Department. One concern raised by the article is that the 
investigations are being kept secret, which is contrary to 
OPR's usual practice. The Department under this administration 
has the reputation of using excessive secrecy to keep 
misconduct from the public. Keeping this policy in place simply 
reinforces Americans' worst fears.
    As you said earlier, you were put in place in great part to 
restore the reputation of the Justice Department. In a 
democratic society, the people have a right to know whether 
investigations show misconduct by Government officials, and I 
think you would agree with that. So why has the administration 
changed the OPR policy of making its findings public? Will you 
commit today to making public the summaries of any OPR 
investigations that do find misconduct?
    Attorney General Mukasey. I certainly agree with the 
Senator's view that Government has to be as transparent as it 
can possibly be. OPR conducts investigations of lawyers, not 
simply across the board of Justice Department employees. 
Lawyers have particular obligations under the rules of the bar 
to which they are admitted and under professional standards. 
Virtually anything can result in the opening of an OPR 
investigation. Many of those investigations are opened and 
closed without incident. Those that are opened as to which 
reason for criticism is found can be referred to bar 
associations, and often are. They are in a particular category.
    Some OPR investigations are carried on along with the 
Office of the Inspector General, and those are made public. 
Some OPR investigations are made public on their own. I think 
it varies from case to case. But one has to be, I think, very 
careful in whether one is going to ruin the professional career 
of a lawyer based on unsubstantiated allegations that simply 
result in an OPR investigation.
    I am very wary about making blanket commitments with regard 
to OPR investigations, notwithstanding that I am firmly 
committed to publicizing those things that should be 
publicized, publicizing joint OPR-OIG investigations, as they 
have been in the past and will be in the future.
    Senator Kohl. When OPR investigations do find misconduct, 
are you committed to making that public?
    Attorney General Mukasey. If OPR investigations find 
serious misconduct that necessitate the dismissal of an 
employee, I think that is probably something that should be 
publicized. OPR investigations that simply say that somebody 
should receive a private admonition or an admonition under the 
standards applicable to a bar, again, may be referred to the 
bar association for its disposition. Bar associations often get 
charges that result in private admonitions. Sometimes they get 
charges that result in public admonitions. And the same is true 
of OPR investigations.
    Senator Kohl. Mr. Attorney General, the Justice Department 
has spent enormous time and effort prosecuting price-fixing 
cartels, and yet the worst and the biggest cartel in the world 
is the OPEC oil cartel, and we have not taken any action 
against them. The actions of OPEC are one of the main reasons 
that gas prices are now more than $4 a gallon. I have 
introduced--and we have had positive response from both 
Houses--the NOPEC bill which would permit antitrust actions 
against the OPEC cartel.
    Would you support the Justice Department having the 
authority to bring antitrust lawsuits against OPEC member 
nations?
    Attorney General Mukasey. I think the Justice Department is 
committed to competition. I think we have proved that time and 
time again. OPEC presents a very special problem. We don't want 
to be in the position of--forgive me for the comical 
illustration--a dog chasing a car. What do we do when we catch 
up with it? Let's assume that we get a verdict against OPEC. 
OPEC can, as a cartel, essentially cease to do business with us 
and make things worse rather than better. So we need to be 
very, very careful about how we approach any sort of antitrust 
proceeding that could result in a great deal of damage to this 
country.
    Senator Kohl. I do not disagree with that. I am asking 
whether you would like for the Department to have the authority 
to take action in a case that it decided it was the right thing 
to do?
    Attorney General Mukasey. I would like to be able to look 
into the issue further than I have, but I think the need for 
caution is, as you acknowledged, apparent and, that is, we 
can't bring actions in a way that could result in doing more 
harm than good.
    Senator Kohl. I do not disagree. But the question is would 
you--which is what the bill would allow the Justice 
Department--not that they would be required to take action, but 
that they would have the authority if in the good judgment of 
the Department the authority was to be used judiciously. Would 
you support having the authority, which is what the bill is set 
up to do?
    Attorney General Mukasey. I haven't seen the bill. I think 
how that authority is phrased and what--
    Senator Kohl. It does not require the Justice Department to 
take action. It gives them the authority.
    Attorney General Mukasey. I understand that, but the 
circumstances in which that authority is to be exercised, the 
elements to be considered, and the matters to be considered are 
all matters of moment. And we have to look very carefully at 
the consequences, also at how the American people would receive 
news that the Justice Department is now empowered to go after 
OPEC. I think we need to be very, very careful about that. I 
want to look at the bill. I want to look at the language. I 
don't want to give an off-the-cuff answer before I have seen 
it.
    Senator Kohl. So you do not have an answer to the question?
    Attorney General Mukasey. I don't because I have very much 
concern--very great concern with the consequences, and I want 
to see the bill before I respond in blanket fashion one way or 
another that we would welcome having the authority. It is 
always nice to have authority. I think how it is to be 
exercised, how discretion is to be exercised is--
    Senator Kohl. Could you take a look at the bill and give me 
an opinion?
    Attorney General Mukasey. I will certainly look at the 
bill. I will certainly look at the bill because it is a very 
important issue.
    Senator Kohl. I thank you. I would like to get your opinion 
on it.
    Finally, one of the very few industries, Mr. Attorney 
General, to enjoy an exemption from antitrust law is the 
freight railroad industry. Because of this exemption, rail 
shippers have been victimized by the conduct of dominant 
railroads, and they have no antitrust remedies. Higher rail 
shipping costs are passed along to consumers, resulting in 
higher electricity bills, higher food prices, and higher prices 
for manufactured goods.
    I have introduced a bill to abolish this obsolete antitrust 
exemption for railroads. Do you agree that this antitrust 
exemption should be repealed so that railroads are subject to 
the same antitrust laws as virtually every other industry in 
our economy?
    Attorney General Mukasey. I think any antitrust exemption 
that is out of date or counterproductive should be re-examined, 
and I will examine that bill, just as I would the other bill 
that you mentioned. I haven't seen it, but certainly the 
Antitrust Division tries to ensure competition across the board 
in every industry, be it that one, be it others.
    Senator Kohl. Thank you very much.
    Senator Feinstein [presiding]. Senator Kyl is next.
    Senator Kyl. Thank you, Madam Chairman. I want to thank 
Senator Grassley for graciously switching with me here since I 
will have to leave, and I am sorry that I will have to leave 
after I have questioned.
    Because of Senator Biden's characterization of my views, 
slightly inaccurately--and I know he did not mean it 
intentionally--I need to take a couple minutes to respond to 
that. This has to do with Byrne grants, and Senator Biden 
acknowledged that he and I have had a lot of conversations 
about how to utilize the money that heretofore has been 
available for Byrne grants.
    It is not my opinion that there is no role for the Federal 
Government to assist local law enforcement; rather, my view is 
that it is a matter of priority and that, to the extent that 
funds are available, we should first focus those funds on areas 
where there is a Federal nexus. For example, on border 
enforcement, we have a horrible situation in Pima County and 
Cochise County and Yuma County, Arizona, where we need far more 
Federal resources to assist our local sheriffs and county 
attorneys and so on because of the drug smuggling and illegal 
immigration. That is a place where these funds can very 
efficaciously be applied.
    Reservations, both Indian reservations and military 
reservations, especially Indian reservations, are in desperate 
need of more funding. That is a trust responsibility for the 
United States, and my view has always been that if we have 
money available, better to put it there than to help the city 
of Scottsdale hire more police officers, for example.
    And then, finally, in areas of expertise, I mentioned drug 
prosecutions, but also things like FBI agents who can work on 
things like bank fraud, that is of very big assistance to local 
governments, which frequently do not have that kind of 
capability. So that is the actual view that I have, and I 
certainly will support more funding in those areas where we 
have a Federal nexus.
    Now, Attorney General Mukasey, Senator Specter made the 
point--and I agree with him, and I will quote him directly--
that ``leaks are intolerable.'' He mentioned the Curt Weldon 
case. I did not look it up in the dictionary, but to me 
``intolerable'' means either that action has to be taken to 
prevent them and/or to remediate the situation that they occur, 
which could also mean prosecution if laws are violated. This, 
of course, brings up the so-called media shield bill, which 
Senator Specter alluded to as well.
    Some of the supporters of this bill argue that the national 
security concerns that you have raised, the intelligence 
community has raised, that I am concerned with, are addressed 
in the bill by an exception that the bill provides to prevent 
terrorist activity or harm to national security. What is your 
view about the exceptions in the bill that purportedly address 
this issue?
    Attorney General Mukasey. My view is that those are simply 
not adequate. The exemption for national security would require 
the Government to show that the harm to be done by a 
publication outweighs the good to be achieved by a publication 
with no standard but that in mind. A judge would have no 
standard other than his own predilection. Also, the Government 
would be put to the burden of coming to court to show even more 
than has already been disclosed or that may already be 
disclosed for the purpose of proving the possible harm.
    In addition, the bill, although it may be useful on 
September 10, isn't useful on September 12. In the case of 
investigating prior acts, in the case of investigating material 
that has already been leaked, the burden that is imposed on the 
Government is even higher than the one that is imposed before. 
The bill would require the Government to prove that information 
was properly classified, that the person who leaked it, who 
they already have to know about, leaked it rather than having--
was in authorized possession of it, which would enable that 
person to simply transfer the information to somebody else for 
the purpose of having it leaked.
    It would require the Government, when it was conducting a 
perfectly valid FISA interception, if a reporter called a 
target of that FISA interception, whether it was a foreign 
power or not, to give the reporter notice of the existence of a 
FISA interception regardless of whether anybody was trying to 
get confidential information or not. There are just numerous, 
numerous things that are defective in the protections that that 
bill affords.
    Senator Kyl. Thank you, and let me see if I understand one 
of the first points you made about September 10th but not 
September 12th, I think, and I don't have the entire wording in 
front of me, but that refers to the wording in the so-called 
national security exception that provides that it only--that 
the Government would have to show by a preponderance of the 
evidence that the information the Government seeks would assist 
in preventing an act of terrorism.
    Attorney General Mukasey. Correct.
    Senator Kyl. So after the fact, the national security 
exception does not provide you any solace.
    Attorney General Mukasey. None.
    Senator Kyl. And I think the point here about the only 
evidence of the leak being the leak itself has to do with one 
of the requirements, which is that there be other evidence of 
the crime--
    Attorney General Mukasey. Often the only evidence available 
to the Government is the leak itself.
    Senator Kyl. Is the leak itself. So--
    Attorney General Mukasey. We can't use that as the only 
evidence.
    Senator Kyl. So the bottom line here is that there are 
serious national security concerns that the exception that 
purportedly addresses these concerns will need to have 
additional work before it could at least achieve the purpose of 
that exception, I gather, in your view.
    Attorney General Mukasey. At the very least.
    Senator Kyl. Now, would you also--and just in the last 40 
seconds here, my understanding is that the concerns with this 
so-called reporter shield bill are not just the Department of 
Justice, but that it also concerns the Director of National 
Intelligence, the Secretary of Defense, the Secretary of 
Homeland Security, the Secretary of the Treasury, the Secretary 
of Energy, and the heads of 16 component agencies of the 
intelligence community, all of whom have expressed their 
opposition to the bill. Is that correct, to your knowledge?
    Attorney General Mukasey. It is correct. I think it is fair 
to say that every head of an entity that has equities in 
national security has signed onto opposition to that bill, and 
not for no reason.
    Senator Kyl. Thank you very much. Obviously, my view is 
that bill needs a lot more work.
    Thank you, Madam Chairman.
    Senator Feinstein. Thank you very much, Senator.
    Senator Kyl. And, again, thank you, Senator Grassley.
    Senator Feinstein. Mr. Mukasey, I am really very 
disappointed in your answer to Senator Biden's question, and I 
want to point out how I looked at the politicization of the 
Department. I believe several United States Attorneys were 
fired for political reasons. I believe that the Civil Rights 
Division may well have been politicized. I believe, according 
to the Attorney General and the OPR, the honors program was 
politicized. The summer intern selection program was 
politicized. OLC opinions were politicized. The Civil and Tax 
Divisions may have been politicized. The voting rights case 
decisions were politicized, specifically Texas redistricting 
and the Georgia voter ID. The rules were changed in that 
Division to permit changes that would allow more political 
effort. The Red Book was changed to a Green BoOkay. The hiring 
of immigration judges was politicized based on testimony of 
Kyle Sampson before this body. And the major was an attempt by 
the White House to overturn Jim Comey's opinion on the 
Terrorist Surveillance Program to convince a very sick Attorney 
General to overturn it.
    If that isn't politicization, I do not know what is. And 
when you answered Senator Biden to say effectively there was no 
politicization of the Department, it struck me quite badly. If 
you would like to respond to that, I would be happy to hear the 
response.
    Attorney General Mukasey. I would be happy to respond to 
it. Two of the items you cite, which were the firing of the 
U.S. Attorneys and one of the other matters you cite, are 
currently under investigation by the Office of the Inspector 
General along with OPR. And when those reports are received, 
they will be reviewed and they will be acted upon, just as the 
recent report of the Inspector General with regard to the 
hiring of summer interns and with regard to the hiring of 
lawyers in the honors program was acted upon. Indeed, actions 
were taken even before it was in place. That report was issued, 
as well as additional recommendations in that report having 
been embraced.
    We have revised the rules with respect to contacts with the 
White House. We have changed those. We have revised the 
procedures that we use for the hiring of immigration judges. We 
have been hiring immigration judges on a non-political basis 
according to these new rules.
    So those reforms, those changes have been put in place, and 
they are matters of ongoing concern. I am not unconcerned with 
that.
    Senator Feinstein. I am happy to hear that. When Senator 
Biden asked you the general question, did you find the 
Department politicized, you essentially said no. And what I 
want you to know is that in the view of many of us, the 
Department has lost enormous credibility because of the things 
that I have mentioned.
    Now I would like to just move on to a question on 
Guantanamo. On June 20th, the Court of Appeals for the D.C. 
Circuit issued its first decision reviewing a case of a 
detainee held at Guantanamo under the review process laid out 
in the Detainee Treatment Act, and this, of course, is the case 
of Huzaifa Parhat, a Uighur who was handed over to the United 
States after being picked up in Pakistan following the start of 
coalition bombing in Afghanistan. The Combatant Status Review 
Tribunal, which reviewed Parhat's case, relied on classified 
information to conclude that Parhat was part of a Uighur 
movement associated with al Qaeda and the Taliban. In an 
unanimous opinion, the D.C. Circuit rejected this argument, 
concluding there was no evidence to support the assertion.
    Here is the question. What are your plans, if any, for 
reviewing the case files of other detainees at Guantanamo to 
ensure that there is adequate evidence to support their 
detention?
    Attorney General Mukasey. As you know, Parhat is certainly 
not the only case before us. Boumediene was a substantial 
change in the landscape which we are reviewing and attempting 
to deal with in an orderly fashion with the D.C. district court 
that has jurisdiction over those cases.
    With regard to Mr. Parhat, the D.C. Circuit found 
inadequacies in the CSRT proceeding to which he was subjected 
and in which evidence was presented. I think it is fair to say 
that after the decision in Boumediene, the status of CSRTs 
entirely is a matter that has got to change. It is going to 
change in the direction of having habeas proceedings. We are 
trying to organize an orderly way to address the situation not 
only of Uighurs, obviously, but of others who are detained at 
Guantanamo so as to assure that their case is going to be dealt 
with in an expeditious fashion.
    I think it is fair to point out, though, that the CSRT 
proceeding was a result of the statute enacted by Congress in 
2006 along with the President in response to a specific 
invitation by the court.
    Senator Feinstein. Thank you. My time is up.
    Senator Grassley, and I will turn this over to Senator 
Biden. Here is the last.
    Senator Biden [presiding.] Senator Grassley.
    Senator Grassley. General, usually before I ask questions, 
I try to point out some communications between your Department 
and me or other members of the Committee that may not be 
answered just to bring them to your attention because you may 
not know everything going on. And I do this in the same vein 
that, as an example, in the 14 town meetings I had last week in 
Iowa, ``Have I answered your mail? '' You have not answered all 
of our mail, and I would like to have you start out your 
meetings by asking each of us if we have answered your letters. 
But we have a number of outstanding requests, and some of them 
have even been highlighted in my mail in a letter that Chairman 
Leahy sent to you to highlight it dated July 1, 2008. We have 
outstanding e-mails--requests for e-mails related to exigent 
letters, answers to questions related to Cecelia Woods, and 
written followup questions from FBI Director Mueller from March 
5th oversight hearing, and then also to inform you that you 
will soon be receiving a letter from me as a member of the 
Finance Committee and Chairman Baucus about correspondence that 
we sent around 6 months ago and just recently received a non-
response. It involves what we believe is misuse of District of 
Columbia U.S. Attorney's Office and the intervention of a 
hearing that we were trying to conduct. We did receive a 
response that was embarrassingly inadequate. So I hope that you 
would do attention to all of these communications.
    Attorney General Mukasey. I am going to pay attention to 
those communications. I know we did receive recently a letter 
from the Chairman referring to past correspondence. I don't 
recall whether it concerned yours. I believe we have dealt with 
the correspondence that is referred to in that letter. But 
obviously we try to answer the mail in more senses of that term 
than one.
    Senator Grassley. Okay.
    Attorney General Mukasey. If we haven't, I apologize for it 
and regret it.
    Senator Grassley. Okay. Before I ask questions, I think 
that your Department is headed in the right direction in all of 
these questions that I am going to ask you now in regard to the 
handling of potential fraud and other problems that come from 
natural disasters. The recent floods and tornado disasters in 
Iowa have taken a hard toll on thousands of my citizens, so I 
was pleased to see a recent press release that your Department 
put out warning Iowans not to become ``a victim twice'' and to 
beware of fraudsters trying to steal people's identity by 
asking for their FEMA registration numbers or Social Security 
numbers.
    The Justice Department warned about scam artists preying on 
disaster victims, particularly contractor fraud, predatory 
pricing. The Justice Department also warned about charity 
scams. Unfortunately, in every disaster situation, we have 
these low lifes come out of the woodwork to prey on people.
    General, have you seen any of these kinds of problems--
well, three questions. Have you seen any kinds of these 
problems so far in Iowa? What has the Justice Department done 
to get the word out and make sure that Iowa's citizens are not 
victimized by scam and con artists? And is the Justice 
Department working with law enforcement officials in Iowa to 
protect citizens from these things?
    Attorney General Mukasey. The U.S. Attorney for the 
Northern District of Iowa has met with local and State 
authorities, including the Iowa Attorney General's office, as 
well as other Federal authorities to make sure that claims of 
fraud are coordinated and dealt with quickly and appropriately. 
I am happy to say that, as far as I know, so far we have not 
found any instances of Federal fraud, although I understand 
that there are some State fraud allegations, at least, that 
have been made.
    We do have available to us the task force that was set up 
in connection with Katrina, which we could use, at least in 
part, to address any possible fraud claims that we get here. So 
far, as I said, we haven't gotten any at the Federal level, but 
we are well prepared, I hope, to deal with them when as and if 
they come.
    Senator Grassley. Well, I think you partly answered my next 
question. I did send a letter to the Governing Council of 
Inspectors General asking that they establish a working group 
that will coordinate Government oversight of monies 
appropriated for disaster recovery in the Midwest. We have a 
duty to ensure that the money appropriated is spent for its 
purpose and not going to opportunists. We have learned a lesson 
that stopping contractor fraud is up front cheaper than chasing 
money. The Inspectors General responded and informed me of this 
disaster working group--I think it is the same one you are 
referring to--that they met on July the 2nd to coordinate 
oversight efforts.
    So I would have these questions in regard to that. Is that 
the same oversight group you were referring to?
    Attorney General Mukasey. It may not have been, although 
the FBI does work closely with Inspectors General, and the 
Justice Department is going to pursue, obviously, any cases 
that are uncovered by the IGs.
    Senator Grassley. So then I think you answered my first 
question, that the Justice Department will lend resources to 
help ensure that those dollars are protected from fraud.
    Has the Department taken any other proactive steps on its 
own too coordinate with various Federal agencies that will 
provide disaster relief funds?
    Attorney General Mukasey. The Office of Justice Programs, 
Bureau of Justice Assistance, has developed an Emergency 
Incident Response Plan to help give technical assistance and to 
address questions about grant programs, problems accessing 
funds and to rebuild program files that might have been damaged 
so as to make sure that people can meet deadlines and get their 
applications in on time. And, obviously, where we can provide 
accommodations, we are going to do so. And we are actively 
looking at other programs and options to help the people of 
Iowa recover.
    Senator Grassley. Now, last, it was about 2 weeks ago I led 
the Iowa delegation in a letter to you requesting that special 
consideration be given to applications from law enforcement 
agencies impacted by flooding situations for both COPS and 
Byrne/JAG grant programs administered by your Department. They 
provide vital funding for State and local law enforcement 
agencies. They help buy equipment, pay training, fund multi-
jurisdictional task forces, and help hunt down fugitives, et 
cetera. In a time of need following a disaster, these funds can 
help small rural police and sheriff's departments get back on 
their feet and replace equipment destroyed by flooding. The 
deadlines for these programs are fast approaching. They may 
have to be, some applications, amended.
    Will the Department of Justice give special consideration 
to these requests to ensure that law enforcement agencies 
impacted by flooding are not forgotten?
    Attorney General Mukasey. We are certainly going to give 
whatever consideration we can, and we are going to help them so 
that they can meet deadlines even where we cannot extend them. 
So, yes, we are going to give consideration to those, and, 
obviously, to the extent they have more pressing needs, they 
are going to go ahead on the list.
    Senator Grassley. And that is directly related to the 
flooding?
    Attorney General Mukasey. It is.
    Senator Grassley. Okay. Thank you, Mr. Chairman.
    Senator Biden. Thank you.
    Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman.
    Welcome, Mr. Attorney General.
    Attorney General Mukasey. Thank you.
    Senator Feingold. Let me start by commenting on the 
Inspector General's and Office of Professional Responsibility's 
recent report on politicized hiring in the Department's honors 
program. The report notes that one of the candidates who was 
almost certainly rejected for political reasons was a young man 
who was first in his class at Georgetown Law Center, clerked 
for a district judge, and also on the Second Circuit. But he 
also made a mistake, and that was working as a law clerk for my 
Judiciary Committee staff, which apparently played a part in 
disqualifying him for an honors program position. He now works 
for the Solicitor General of the State of New York, so he has 
done fine. But for the most petty and inappropriate of reasons, 
the Department of Justice lost out on a very talented young 
lawyer. The people responsible not only intentionally 
interfered with the careers of fine young lawyers, but they 
damaged the Department and the Nation. I want you to know that 
I find this conduct unacceptable and truly hope that the 
promises you made to end this kind of behavior at the 
Department are being kept.
    My question to you now, however, is more specific. In light 
of the report, what specific actions have you taken and what 
further actions do you intend to take to hold those who broke 
the law here accountable?
    Attorney General Mukasey. We have put in place a system 
that assures that all hiring with regard to the honors program 
and with regard to the summer internship program is entirely in 
the hands of career lawyers, and obviously anyone who is 
qualified to serve in the Department of Justice is welcome to 
submit his or her application and to be evaluated on the 
merits.
    Senator Feingold. But what about accountability for those 
who did this?
    Attorney General Mukasey. I think that to the extent that 
there is to be accountability, that was covered in the OIG 
report. People who were deficient were--some of them are no 
longer at the Department. Others came in for criticism.
    Senator Feingold. Well, I will want to review exactly--
excuse me, sir.
    Attorney General Mukasey. No. If you can point to any 
criminal laws that were violated, obviously those--
    Senator Feingold. Well, we will take this up more later, 
but thank you for that initial response. I am very concerned 
that the message be clear that this is unacceptable and that 
requires real accountability.
    In 2007, the Justice Department issued draft regulations to 
implement a law that gives the Attorney General, rather than 
the courts of appeals, the authority to allow States to opt 
into procedural rules in Federal habeas corpus actions that 
favor the Government, and I think disadvantage the inmate 
habeas petitioner. And to get this benefit, States are supposed 
to prove that they provide competent counsel in post-conviction 
proceedings, but some serious concerns have been raised about 
the clarity and completeness of DOJ's proposed implementing 
regulations. Even the Judicial Conference has asked DOJ to 
reconsider the regulations, stating that the regulations 
provide ``no guidance about the criteria to be considered by 
the decisionmaker'' in assessing whether a State has provided 
competent counsel.
    I asked you some questions for the record about these 
regulations after the last DOJ oversight hearing, and your 
responses were a little more cavalier than I expected given the 
gravity of this issue and the significant change in habeas 
procedure that these regulations would implement.
    Now, before the final regulations go into effect, I want to 
understand fully the Justice Department's justifications for 
them. So I am going to have a number of detailed written 
questions that I will provide you after the hearing. I would 
like your commitment today to answer my questions fully and 
give your personal attention to them before these regulations 
are finalized. Will you commit to that?
    Attorney General Mukasey. Yes.
    Senator Feingold. All right. You mentioned in your 
testimony that you are trying to determine whether the Attorney 
General guidelines governing the FBI's investigative activities 
can be ``consolidated and harmonized.'' According to a report 
by AP last week, the Department will put in place revised 
guidelines later this summer that will permit the FBI to open 
preliminary inquiries about Americans ``without any evidence of 
wrongdoing, relying instead on a terrorist profile that can 
single out Muslims, Arabs, or other racial and ethnic groups.''
    Now, according to the article, ``Among the factors that 
could make someone the subject of an investigation is travel to 
regions of the world known for terrorist activity, access to 
weapons or military training, along with a person's race or 
ethnicity.''
    So let me ask you first: Under these new guidelines, will 
the fact that a person is of a certain ethnicity or national 
origin be enough without any evidence of wrongdoing to justify 
a preliminary inquiry?
    Attorney General Mukasey. No. And that is--that represents 
no change from prior rules that say that we do not use that as 
the basis alone for predicating an investigation into anyone. 
These new regulations are a part of a process--I don't mean to 
be more expansive than you want, and please cut me off if I--
    Senator Feingold. Well, let me just do a follow-up question 
to get to specifics. Thank you for that clear answer. But let 
me try this one: What about if a person is a U.S. citizen of 
Pakistani descent who has traveled frequently to Pakistan? Now, 
would that be enough to potentially trigger an investigation?
    Attorney General Mukasey. I think the circumstances of a 
person's travel would be one element or maybe one element in 
determining whether a person is appropriate for conducting an 
inquiry. But I think it is useful to point out that this is 
part of an ongoing process that has gone on really since right 
after September 11, and it has gone on with the urging of 
bipartisan commissions, including the 9/11 Commission, 
including the Silberman-Robb Commission, that the FBI not only 
be a crime-solving organization but be an intelligence-
gathering organization.
    Senator Feingold. And I respect that. I am a member of the 
Intelligence Committee. But my specific question was whether 
the frequency of travel by a U.S. citizen of Pakistani descent 
to Pakistan in and of itself would be sufficient to potentially 
trigger an investigation?
    Attorney General Mukasey. I think the regulations, before 
they come out, will be made known to this Committee, will be 
reviewed with this Committee, and certainly before they are 
effective they will be reviewed with this Committee. And I am 
not prepared to discuss today particular hypotheticals one way 
or the other, particularly unmoored from any other evidence 
that is in the hands of investigators.
    What I do want to point out, though, is that the 
investigations take regulations that apply to the opening of 
criminal investigations and regulations that may apply to the 
opening of intelligence investigations and try to harmonize 
them so we do not have cross-cutting regulations--
    Senator Feingold. Let me just ask one more question before 
my time ends. And I appreciate your responsiveness.
    What about if such a person also owns a gun--which, by the 
way, the Supreme Court has just definitively held is an 
individual constitutional right, a decision I agree with. Might 
that person be investigated by the FBI based on that 
information alone?
    Attorney General Mukasey. Senator, again, I don't want to 
get into ``what if'' before the regulations go into place. I 
should point out that when I was a judge, I presided over a 
case in which First Amendment expression was proved as part of 
the case in which otherwise confidential conversations were 
proved as part of the case because, along with other evidence, 
they were relevant in determining whether the defendants in 
that case were guilty. So I think it is very important to 
consider all of these matters in context. And I think the 
regulations will assure that the nature of evidence to be 
gathered and the way that it is gathered is subject to review, 
and also so that it becomes apparent that not only have the 
ways in which the FBI goes about gathering evidence changed, 
but also the oversight both within the FBI and within the 
Justice Department, and NSD has been enhanced to keep track 
with and to keep pace with the increased authority of the FBI 
to gather intelligence. And I think--
    Senator Feingold. I will be following this very closely--
    Attorney General Mukasey [continuing]. Will reflect that.
    Senator Feingold. I look forward to working with you on 
this matter as it evolves.
    Thank you, Mr. Chairman.
    Senator Biden. Thank you, Senator.
    Senator Schumer.
    Senator Schumer. Thank you, Mr. Chairman. And thank you for 
being here, Attorney General.
    Now, Judge Mukasey, at your confirmation hearing, I told 
you how troubled I was about the allegations of politicization 
in some of the Department's prosecutions. We talked about 
hiring, but these are prosecutions. In particular, I urged you 
to get to the bottom of deeply disturbing allegations about the 
case of Don Siegelman, the former Governor of Alabama. I 
pointed out at the time, although Siegelman was convicted of 
several counts, witnesses have credibly contended his case was 
politically motivated and selectively prosecuted. Some of the 
specific allegations include: that Karl Rove asked Jill 
Simpson, a life-long Republican and practicing lawyer in 
Alabama, to try and take pictures of Siegelman cheating on his 
wife or in compromising positions; that Rove personally 
contacted the Department of Justice and pushed for a second 
prosecution of Don Siegelman after a Federal judge dismissed 
the first case against him. Karl Rove, of course, has refused 
to appear before Congress and testify under oath about his 
involvement in the Siegelman case.
    When I asked you to take a thorough and personal look at 
the Siegelman case, you were reluctant. You said the case was 
on appeal. And I must say that I think it is time you get to 
the bottom of this because there have been some startling new 
developments in the case since.
    First, in a highly unusual decision, the Eleventh Circuit 
Court released Siegelman on bail pending his appeal, finding 
that, ``There was substantial question of law or fact likely to 
result in reversal.'' Not only that, but in connection with 
that appeal, 54 State Attorneys General, Democrats and 
Republicans, filed a brief supporting the appeal. That is an 
astonishing bipartisan act, knowing that prosecutors are very 
reluctant to take issue once a jury has convicted somebody from 
the Justice Department. I think it underscores the flimsiness 
of the case and the concern about selective prosecution. And I 
have to tell you, nothing, I think, has troubled me more than 
this. This is almost like if the allegations are true--
obviously, that is a big ``if''--it is like making the Justice 
Department the Justice Department in a banana republic. You do 
not like someone; you go after them; you prosecute them on 
flimsy evidence. It is really troubling.
    So I want to ask you some questions about this because I am 
deeply troubled about this, and it is the kind of thing that I 
believe that you, when you testified before us, would want to 
get to the bottom of and eliminate even the appearance that 
something like this happened.
    So, first, there is, in fact, an OPR investigation underway 
in the Siegelman case. Is that correct?
    Attorney General Mukasey. Yes.
    Senator Schumer. Okay. Do you know when it began?
    Attorney General Mukasey. No.
    Senator Schumer. Could you find out for us?
    Attorney General Mukasey. I suppose I could find out when 
it began.
    Senator Schumer. Okay, good. Do you know when it will be 
complete or how far along it is?
    Attorney General Mukasey. I meet regularly with the head of 
OPR, and I do not want to get into those particular meetings. 
Obviously, they are working on it, as they are on other 
matters, along with OIG, when there are joint OIG 
investigations. And I have no reason to believe that anybody is 
slow-rolling that or dragging--
    Senator Schumer. Well, do you ask questions and make sure 
that that is occurring, that this is given--this one is 
different than lots of other cases. When 54 Attorneys General 
write a letter, when the Eleventh Circuit calls into question 
the conviction on the basis of some fact or law, and the 
allegations are--you would admit if the allegations are true, 
it would be stunning. Isn't that correct?
    Attorney General Mukasey. If the allegations are true, it 
would be stunning. I think it is fair to point out that the 
Eleventh Circuit's decision had to do with issues raised on 
appeal--
    Senator Schumer. I understand.
    Attorney General Mukasey [continuing]. By Mr. Siegelman 
that went to particular counts of the indictment and that did 
not go to the matters that you discussed. But I certainly agree 
that if the allegations you make are true, that would be 
stunning.
    Senator Schumer. Okay. So shouldn't this get a high 
priority from OPR?
    Attorney General Mukasey. I think it has substantial 
priority.
    Senator Schumer. Okay. That is what I want to make sure of.
    Attorney General Mukasey. But I am not--
    Senator Schumer. When you said before, well, there are a 
whole lot of things they investigate--
    Attorney General Mukasey. No, no, no. I am not suggesting 
that this is down on the list at all.
    Senator Schumer. Okay. Can you assure us it will come to a 
conclusion before this administration's end?
    Attorney General Mukasey. I have every reason to believe 
that it will.
    Senator Schumer. Good. Do you know how many lawyers or 
investigators are working on it?
    Attorney General Mukasey. No. And I don't know that with 
respect to any investigation.
    Senator Schumer. Right. But OPR, this is not like the IG. 
You appoint the head of OPR. He serves at your pleasure.
    Attorney General Mukasey. I did not appoint this head of--
    Senator Schumer. I understand. You have the authority to 
appoint.
    Attorney General Mukasey. And Marshall Jarrett is a superb, 
qualified person.
    Senator Schumer. Okay.
    Attorney General Mukasey. I don't know of anybody who has 
ever--
    Senator Schumer. And do you believe there are enough 
resources--
    Attorney General Mukasey. Yes.
    Senator Schumer [continuing]. Being used on this case?
    Attorney General Mukasey. There certainly is.
    Senator Schumer. Okay. Now, next question, and this one is 
pretty serious. Will you make the OPR findings public when the 
investigation is complete? I know you had a general discussion 
with Senator Kohl.
    Attorney General Mukasey. That depends on what they are, 
and for the same reasons as concerned my discussion with 
Senator Kohl, the same reasons apply to this. I don't know in 
advance what OPR is going to find.
    Senator Schumer. But don't you think either way, no matter 
what they find, given the seriousness of these allegations, 
calling into question the very fundamentals of neither fear nor 
favor before the law, that these should be made public? If they 
say there is nothing wrong, I would want to know, and if they 
say there is something wrong. What would be a reason not to 
make this public?
    Attorney General Mukasey. I think there are various avenues 
open for exploring those allegations, including exploring their 
source and having testimony on the subject. OPR is not the only 
avenue.
    Senator Schumer. Well, I understand that, but why wouldn't 
you commit to making this public?
    Attorney General Mukasey. For the simple reason that I 
don't know what the conclusions are going to be.
    Senator Schumer. Well, give me a reason, just give me a 
hypothetical reason why they shouldn't be made public?
    Attorney General Mukasey. If OPR determines that somebody 
did nothing wrong or that a lawyer neglected to attend to a 
detail in a way that under State law would warrant only a 
private admonition, for me to make those public--
    Senator Schumer. Okay. Well, let me ask you this: If--and 
this is a big ``if.'' If OPR finds that there were political 
interference in the case, will you make that part of it public 
if it is not a lawyer making some kind of--
    Attorney General Mukasey. I think--cases are brought for 
all kinds of reasons, and we have all--I have had the 
experience of having a divorced wife walk in, having had the 
goods on her ex-husband, and deliver them and bring a case for 
that reason, because she would like to see him suffer. That is 
not a noble reason. But that is not--
    Senator Schumer. OK, but that is not what we are discussing 
here.
    Attorney General Mukasey [continuing]. A reason for not 
bringing the case.
    Senator Schumer. That is not what we are discussing here. I 
asked you if the allegations that are made are true that there 
was political interference, is there any reason not to make 
that public?
    Attorney General Mukasey. If there is interference with the 
course of a case, that is a matter of a whole different--
    Senator Schumer. Well, how about if Karl Rove did suggest a 
second prosecution for Siegelman after the first?
    Attorney General Mukasey. That is the kind of ``if'' that 
depends on the underlying evidence. I think we ought to await--
    Senator Schumer. Well, why shouldn't it be public 
regardless whatever the underlying evidence is? He may have 
come across some new fact.
    Attorney General Mukasey. He may indeed.
    Senator Schumer. Okay. But why shouldn't that be made 
public? You are not giving me a very good reason, sir.
    Attorney General Mukasey. I don't see publicizing the 
source of an allegation if the allegation turns out to be true.
    Senator Schumer. Let me ask you one more question with the 
Chair's indulgence. Should Karl Rove be interviewed in this 
case?
    Attorney General Mukasey. That is a matter for OPR to--
    Senator Schumer. What do you think? You are the ultimate 
authority here.
    Attorney General Mukasey. I am not the ultimate authority 
here. I have not supplanted--I have not supplanted OPR, and I 
do not intend to. I intend to look at their report, and if it 
is in any way deficient, I--
    Senator Schumer. You do not think that given the 
allegations that have been made, serious allegations that have 
gotten scores of Democratic and Republican Attorneys General to 
ask that this case be re-examined, that Karl Rove should maybe 
not be interviewed here?
    Attorney General Mukasey. I think there are avenues for 
conducting examinations other than the OPR investigation and 
other than my suggestion. And--
    Senator Schumer. Do you think someone in the Justice 
Department should ask Karl Rove whether he was involved, 
whether he did the things that are alleged, someone, somewhere? 
Or is there a possibility no one should ever ask him?
    Attorney General Mukasey. I think that very much depends on 
what the facts are that are found by OPR, and I don't know what 
they are going to be.
    Senator Schumer. I find these answers very disappointing.
    Chairman Leahy. I think Senator Schumer's concerns reflect 
some of the same concerns you have heard from--the same nature 
as the concerns you have heard from Senator Specter and myself, 
and they are concerns that have been expressed by a lot of 
people on this Committee.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman.
    Welcome, Attorney General Mukasey.
    Attorney General Mukasey. Thank you.
    Senator Whitehouse. In the 8 months you have been in 
office, have you had occasion to determine yet whether 
waterboarding is torture?
    Attorney General Mukasey. No, because as I said, it has not 
been proposed to be returned to the program and it is not part 
of the program.
    Senator Whitehouse. In that answer and answers you have 
given to Chairman Leahy and answers you have given to Senator 
Feinstein and answers you have recently given to Senator 
Schumer, I detect a very pronounced reluctance to look backward 
into the problems at the Department of Justice. You have 
assured us, for instance, that politics will be kept out of 
prosecutions under your watch going forward. But the effects of 
prosecutions of politics on past prosecutions are still very 
much alive and well for the subjects of those prosecutions.
    You have assured us that you have reviewed the OLC opinions 
regarding current programs. But past OLC opinions done in the 
politicized atmosphere of OLC at that time continue on the 
books as precedent to be counted in the future and now.
    You have stated that you have changed and remedied the 
politicized hiring policies of the Department of Justice, but 
people who were hired pursuant to the politicized hiring 
policies are still there.
    So for many of us on this Committee who care very deeply 
and, I hope you understand, sincerely about the integrity of 
the Department of Justice, it is highly inadequate to have this 
``only look going forward'' approach that I detect. It is very 
important, I think, that we also be prepared to look backward, 
find out exactly what went wrong, and clean it up. Because if 
we cannot be assured that you are looking backward, we cannot 
be assured that it has been cleaned up. And if we cannot be 
assured that it has been cleaned up, we cannot be satisfied 
that the Department of Justice is back where it needs to be.
    Attorney General Mukasey. You have raised a variety of 
subjects. I think with regard to interrogations, it is 
important to point out that the law has changed very much since 
the original memos were written. You have access to--and you, 
in particular, because your membership overlaps, as I 
understand it, with both the Intelligence Committee and this 
Committee. You have access to unredacted copies of the 
operative memoranda. So you know what was decided in the past, 
and you know what was decided today.
    Senator Whitehouse. And I will tell you what I have seen. I 
have seen what I consider to be exaggerated and unreasonable 
claims of executive authority far beyond what reasonable debate 
would permit. I have seen dramatic lapses of very basic 
scholarship. These are not the subject of OPR investigation. 
There are public reports that Department leaders have said, 
``When people see these opinions, they will be ashamed of 
them.'' And, repeatedly, we have seen opinions of OLC retracted 
as wrong or ill-advised, which is highly unusual. When you put 
all that stuff together, it is hard not to look back at OLC as, 
what I have said on the Senate floor, ``George Bush's Little 
Shop of Legal Horrors.'' It is just not adequate to say, OK, 
well, it is going to be fine going forward and not look back 
and assure us that there has been a hard look back and that we 
are cleaning up OLC. It is a vitally important thing, and it is 
not just--Mr. Attorney General, it is not just about your 
personal integrity. I am not here to challenge that. I don't 
challenge that. I have confidence that under your watch things 
will be done right. But as Jack Goldsmith pointed out in his 
book, there are, to use his phrase, ``a number of practices OLC 
has developed over the years to help it avoid errors and to 
compensate for the fact that its opinions are not subject to 
the same critical scrutiny of adversary process and dissent 
that characterized the judiciary.'' He goes on to say that OLC 
has not always followed these norms and practices during the 
past 6 years. It seems clear that had these norms and practices 
been followed, OLC would have avoided some and perhaps most of 
the mistakes that it has made.
    And I really think that we need to join on that issue 
because OLC is far too important to be allowed to continue with 
any question about its integrity.
    Attorney General Mukasey. I think the fact that OLC 
opinions have been withdrawn is itself evidence that OLC is not 
simply operating as somebody's Shop of Horrors, and that when 
matters have to be re-examined, they are re-examined.
    Senator Whitehouse. But what it does not answer is the 
question what went wrong at the time that allowed opinions that 
are so embarrassing that they do not meet basic standards of 
legal scholarship, that have to be withdrawn, that are 
described as a cause for shame to the Department, what went 
wrong to cause that to happen? That I think is a matter of 
legitimate inquiry, and I am concerned that you do not seem 
curious about that.
    Attorney General Mukasey. I think one of the things that 
went wrong--I was not there at the time, but I think one of the 
things that went wrong at the time is the phenomenon described 
in the book that you mentioned, and that is what the author of 
that book described as a ``cycle of aggressiveness and 
timidity'' in the intelligence community in responding to 
requests for information. We have people demanding that people 
push the law to the limit, and then we have people saying don't 
push the law to the limit and that you are subject to criticism 
and prosecution afterward, that that is a very unwise cycle.
    After September 11, there was an enormous amount of 
pressure to find the maximum that could be done. There were 
opinions prepared that were not up to the standard of OLC that 
were later withdrawn. But it is fair to say that the 
conclusions, the ultimate bottom-line conclusions of those 
opinions were unchanged, that is, that practices that were 
permitted under the laws that then existed were, in fact, 
permissible, although not for the reasons outlined in those 
opinions. And as to some of those matters, it is fair to say 
that things were explored and the subject of commentary and of 
consideration that were never adopted. And I think it is 
important to make sure that at a time like that, people come 
forward with whatever ideas they have, both good ideas and, 
perforce, bad ideas. The bad ideas hopefully do not get 
adopted.
    Senator Whitehouse. But when they do, to me it is a signal 
that something is wrong. And when--
    Attorney General Mukasey. I think the--
    Senator Whitehouse. Let me give you my favorite example 
because it just drives me nuts. There is a Fifth Circuit Court 
of Appeals opinion called United States v. Lee in which the 
Fifth Circuit Court of Appeals reviewed conduct by a Texas 
sheriff and described it as ``water torture.'' I think they 
used the phrase ``torture'' seven times. And if you look back 
into the record of that case, you see that the water torture 
they are describing is waterboarding. There is just no ifs, 
ands, or buts about it. It is absolutely clear.
    It is a case that was prosecuted by the Department of 
Justice itself. The person who prosecuted it I understand is 
still in the Department. It is on the books of the United 
States Court of Appeals for the Fifth Circuit. It is a 
significant case.
    If this matter were being briefed to you as a judge and a 
party had missed that case, I think you would be justifiably 
angry and disappointed at the failure of legal scholarship that 
did not find the case.
    What concerns me is not that the OLC disagreed with that 
case. It is that in a 50-plus-page opinion they never found it; 
or they did find it and did not bother to discuss it. And they 
discussed very similar cases where they could find an 
exception. Here where I do not think the exceptions they found 
in the other cases existed, something went badly, badly wrong 
over at OLC, not just people being a little energetic. And it 
can recur if we do not figure out what happened and prevent it 
from happening again.
    Attorney General Mukasey. Senator, respectfully, I agree 
with your interest in thoroughness. I agree with your interest 
in balanced consideration. But the case to which you refer was 
prosecuted under the civil rights laws. It was not a case that 
dealt with whether a technique is or is not torture under the 
torture statutes. That case was properly prosecuted under the 
civil rights laws. It would be prosecuted today under any 
standard under the civil rights laws. That was not the issue. 
Indeed, the issue on appeal did not even concern the civil 
rights laws--
    Senator Whitehouse. No, but when a United States Court of 
Appeals described a specific technique at issue as ``torture,'' 
isn't that relevant to a decision? Do you really mean to come 
before this Committee and say that a court of appeals decision 
that describes the specific technique at issue before the 
Office of Legal Counsel as ``torture'' is not relevant to a 
discussion of whether it is torture under a different statute?
    Attorney General Mukasey. In fairness, I don't think that 
was the court of appeals' choice of words. It was quoting from 
an indictment. It was quoting from the way the matter had been 
referred to below.
    Senator Whitehouse. No, that is not accurate.
    Attorney General Mukasey. I think it is. The--
    Senator Whitehouse. My time is up. I apologize. I have gone 
over.
    Chairman Leahy. That is all right. We will have a chance to 
go back.
    What I am going to do is recognize Senator Cardin now, and 
then we are going to take a 10-minute break as soon as Senator 
Cardin's questions are completed.
    Senator Cardin. Thank you, Mr. Chairman.
    Attorney General Mukasey. Good morning.
    Senator Cardin. Mr. Attorney General, it is nice to see 
you.
    Attorney General Mukasey. Nice to see you.
    Senator Cardin. I certainly want to concur in the comments 
of my colleagues about the prior problems within the Department 
of Justice and dealing with those in the most transparent way 
possible. A lot of the problems in the Department of Justice 
were basically as a result of failure to provide a public 
explanation. And I think the more transparent it is done, the 
better it will be for the Department of Justice. And I just 
want to urge you to do that.
    I want to talk about the issue you and I have talked about 
on many occasions, and that is the traditional role of the 
Department of Justice as it relates to civil rights issues. And 
we have had, I think, some very positive discussions about 
that.
    I was pleased to see in your written comments about your 
commitment in regards to the election process and to, as you 
put it, ``guarantee the integrity of our elections.'' And I 
agree with you that protecting voting rights and combating 
fraud are two sides of the same coin, and I was pleased to hear 
your comments on that.
    I want to ask you about your plans for the 2008 elections. 
There are some issues that can be anticipated that by an active 
Department of Justice we can avoid problems in 2008--issues 
such as having adequate voting machines and taking precautions 
to make sure that people know about the rights of voting. That 
can be done in advance. Some of the issues are more difficult 
when you have 11th-hour types of material that we saw in 
Maryland and other States which are aimed at minority 
communities and give them fraudulent information are a little 
more difficult to try to avoid through your preliminary work, 
but by putting a spotlight on this concern, you can, I hope, 
discourage that type of conduct by certainly our major parties.
    So I want to ask you what specific programs are you 
planning to put in place so that we can try to have the widest 
possible participation in the 2008 elections and avoid any type 
of fraudulent activities.
    Attorney General Mukasey. Every single district, every 
single district in this country, is going to have a specific 
designated Assistant U.S. Attorney and an investigator schooled 
in voting laws and enforcement of the voter access laws and 
other laws and is going to be alert to precisely the kind of 
practice that you identified, namely, misinformation, which as 
I have said in our private conversations is just as much fraud 
as any other kind of fraud.
    We also have monitors and inspectors who are going to focus 
on particular districts, districts that are the subject of 
consent decrees, districts that have been historically 
districts where problems have been encountered. And we are 
prepared to go into those districts to head off precisely the 
kind of practice that you have talked about. That is what we 
are going to do, and that is what we are training people to do 
at the National Advocacy Center and elsewhere.
    Senator Cardin. I have read in your written testimony about 
the monitors, that they have already been--some have already 
been placed. I think that is an extremely important part of 
your strategy. I would just encourage you in your involvement 
in placing monitors to take a look at previous activities. I 
know you need to deal with the areas that are under court 
supervision, but also to take a look at using the monitors in 
areas that have recently shown some challenges, but also to 
share that information afterwards so that we can have a better 
understanding of the problems they are confronting to try to 
put in place the institutional protections against the newer 
types of frauds.
    Attorney General Mukasey. I agree that we ought to 
publicize that information afterwards, and we are going to--we 
will have people looking for precisely the kind of conduct that 
you mentioned.
    Senator Cardin. Let me just mention some of the issues that 
I think we will be confronted with in this election. If the 
primaries are any indication, there has been an unusually large 
number of young people who have gotten involved in this 
political process. When our college campuses return in 
September, my guess is that you are going to see more political 
activity than we have seen in prior elections.
    What steps are you taking to make sure that students are 
able to fully participate in the political process, knowing 
full well that it may challenge some of our local election 
boards?
    Attorney General Mukasey. We have tried to make sure that 
the statutes that require all State laws that provide services 
to people to permit or to encourage voter registration at the 
same time. The most famous of those is the motor-voter 
registration law, but there are other related statutes. And we 
are making sure in reaching out to State and locals that we 
make certain that they are doing that.
    Senator Cardin. I would encourage you to put some attention 
to this, knowing that we could expect some significant 
increases in participation by students who may very well be 
eligible to participate in a particular State and may find some 
difficulty or obstacles that are placed in their way.
    Attorney General Mukasey. We are also trying to make known 
telephone numbers and websites--students are particularly adept 
at use of the Internet and websites--that people can contact to 
make them aware of what their rights are and how to get access 
to the ballot.
    Senator Cardin. And let me point out that, as you know, the 
management of our election system is such a hodgepodge 
nationally. It is a Federalist system so you have States and 
counties.
    Attorney General Mukasey. The States are principally in 
charge.
    Senator Cardin. Right. And the political oversight is 
different throughout the country. It really cries out for the 
Department of Justice to pay a little attention to this as it 
relates to legitimate Federal interest in protecting the right 
of people to vote. So I would just urge you to get a little bit 
more involved in that.
    There are other issues, obviously, involved in civil rights 
and housing and employment, and I will give you just the last 
30 seconds I have if you wish to comment further as to the 
activities in the Civil Rights Division.
    Attorney General Mukasey. I think we have been very active 
in the two areas you mentioned--housing and employment. We have 
tried to bring the kinds of actions that have the maximum 
amount of impact under Title VII. The Housing Division, which I 
recently visited, brings something on the order of 21 pattern 
and practice cases a year, has numerous test teams out 
protecting housing rights. We enforce these across the board, 
and I have made that particular Division--which has become 
really a defining Division for the Justice Department; it was 
created within the last 50 years, but it is probably the 
defining Division of the Justice Department--my particular 
focus.
    Senator Cardin. Thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    We will take a 5-minute break, and then a vote is coming up 
soon. We are going to have to figure out what to do from there, 
but let's take that break.
    [Recess 11:29 a.m. to 11:35 a.m.]
    Chairman Leahy. Thank you, Mr. Attorney General. As you 
know, we are keeping one eye on the clock because of the series 
of votes on FISA.
    Attorney General Mukasey. I understand you have other 
things to do.
    Chairman Leahy. You will certainly want some of us to be 
there voting.
    Attorney General Mukasey. Yes, please.
    Chairman Leahy. Some of us. I am sure you agree with me 
that whichever way we vote, we should all be there to vote.
    Attorney General Mukasey. I do.
    Chairman Leahy. I know that, which kind of leads into my 
question. It sort of follows on what Senator Cardin was saying, 
and he has told me the horror stories of what went on in his 
own election in Maryland, one of the more progressive States. 
And you have talked about the--you mentioned the phone lines 
ready to handle calls. But receiving complaints is not quite 
enough to protect the right to vote. Once a complaint is 
received, what does the Department do to dispel erroneous 
information? We reported an important bill, the Deceptive 
Practices And Voter Intimidation Prevention Act of 2007, some 
months ago that would require everybody to be more proactive 
from the Department of Justice. The bill's principal sponsor is 
Senator Obama. Obviously, I am concerned that his supporters 
not be precluded from voting, just as I am concerned that 
Senator McCain's supporters not be precluded. There are 20 
cosponsors on it, ranging from, I think it would be fair to 
say, from the most conservative Members of the Senate to the 
most liberal.
    So let me ask you this: If you have a place where photo 
identification is not required by State law, for example, in my 
State, how would the Justice Department correct the rumor that 
photo ID is required to vote in that jurisdiction? You know, 
these rumors start in jurisdictions that do not require it that 
you have to have photo identification. If such things start--
and they have in the past--how do you respond to that?
    Attorney General Mukasey. Senator, you correct that lie the 
same way that you correct any other lie, and that is, by 
pouring truth on it. If people are giving misinformation about 
what it takes to vote, about where the vote is, and about when 
the vote is, then you make absolutely certain that the State 
authorities are dispelling that rumor. There are public service 
announcements that could be made. There are all kinds of ways 
of dispelling information. Newspapers can be used. 
Announcements can be made.
    Chairman Leahy. Let's take something that is a little bit--
gives you a little bit more of a heads-up. Latino American 
voters were sent letters in some precincts last time that they 
could not vote because they are immigrants. And these are 
citizens. Are you proactive enough that you can get letters out 
to those same people and--
    Attorney General Mukasey. I cannot tell you as I sit here 
that we can get a letter to absolutely every one of those 
people. We can certainly work with organizations that are 
active in the Latino community, and would, to make certain that 
they could tell people in that community that what they were 
being told was absolutely false and that they had it on the 
word of the U.S. Government that it was false. That is 
fraudulent conduct.
    Chairman Leahy. We are seeing in so many States during the 
primary season an unprecedented turnout. Even my little State 
of Vermont on our town meeting day, which people do not vote 
that much unless there is a major bond issue or a local race, 
we had the highest number we have ever had. We have an 
excellent Secretary of State, Deb Markowitz, and we use paper 
ballots in most of the State, and she anticipated this and had 
ballots printed up. But we saw a number of places during the 
primary season where people ran out of ballots.
    Is there any kind of a proactive step to make sure that 
does not happen?
    Attorney General Mukasey. Well, certainly people who are 
denied access to a ballot for any improper reason have the 
remedy under Federal law of a provisional ballot. We are trying 
to make sure, in consultation with State and local authorities, 
that they have got enough in the way of equipment and the 
proper equipment that that does not happen. Can I guarantee you 
in advance that it won't? No. I can guarantee you that we are 
doing whatever we can to prevent or mitigate it.
    Chairman Leahy. Well, as I look at, for example, another 
thing that happened last time--and I am using the past as 
prologue. Again, to use the example of my State, when 7 o'clock 
comes, the polls close. If there is a line out into the street, 
they usually put a sawhorse or a cone or something behind the 
last person. But how do we make sure that States allow that? We 
had instances of States where, whenever the polls closed, say 8 
o'clock, the time comes, and they say, ``OK, we are closed.'' 
There might be 500 people in line. That would be a violation, 
would it not?
    Attorney General Mukasey. As I sit here, I cannot tell you 
precisely, but if that is a violation of Federal law, then 
somebody ought to get a Federal judge to mandate the continued 
operation of that polling place. And I am sure that the corps 
of Assistant United States Attorneys who are being trained at 
the NAC would be available to do precisely that.
    Chairman Leahy. Let me go to a different subject that is 
going to be the subject of a hearing here. We found in March 
that the passport files of Presidential candidates were 
breached by the State Department, a matter of some concern to 
everybody, whether a breach in IRS or the State Department or 
anything else. Senator Specter and I sent you a letter and 
asked you to take immediate action. It was Senator McCain's, 
Senator Obama's, and Senator Clinton's passport files. Who 
knows who else. And we asked what preliminary steps you are 
taking to make sure whether these violated Federal laws, such 
as the Privacy Act. We wanted to make sure--you had said in 
your briefing you were waiting for a box of evidence. We sent 
this letter in March. Yesterday we received an answer. The 
matter has now been referred by the State Department's IG; it 
is being handled by prosecutors in the Criminal Division. They 
found that--they did a sample of 150 high-profile Americans. 
They found that they had been searched a total of more than 
4,100 times in the past 5-1/2 years. And, of course, these have 
name, date, place of birth, Social Security numbers, and so on. 
We have widespread abuse in electronic records, 28,000 
Government workers and contractors have access to it.
    What specific steps are you taking to make sure this stops? 
We are always asking Americans to give more and more of their 
personal data. You have to. I do. But we are told, don't worry, 
it is being kept safely. Is somebody going to go to jail for 
this, is what I am leading up to.
    Attorney General Mukasey. Senator, as you point out, we 
received yesterday a referral from the IG's office at the State 
Department. That was referred to the Criminal Division. That 
case is going to be followed up on. And if somebody committed a 
crime, we are going to do our level best to make sure that 
somebody goes to jail, because that is a deterrent. It is the 
ultimate deterrent. It is one of the better deterrents.
    Chairman Leahy. Well, we will keep in touch with that, 
and--
    Attorney General Mukasey. We are going to follow and 
prosecute that case. It is a prosecutable case.
    Chairman Leahy. Good. I mean, I want someone to go to jail. 
If they are snooping on Senator McCain's passport or Senator 
Obama's passport, I do not care who it is. The fact that they 
are doing this--or they are snooping on John Jones' passport--
they should not be allowed to do it.
    Senator Durbin.
    Senator Durbin. Attorney General, thank you for being here. 
I am not going to replow the ground about Steven Bradbury's 
memos. He has been lauded in this Committee, and yet there 
seems to be a reluctance to even review things that he has 
written. He is not going to be appointed, if that is still the 
administration's intent, to a permanent position with the OLC. 
But I would like to ask you to help me understand what your 
plans are for the next few months.
    In less than 4 months, the American people will make an 
important decision in an election. In less than 6 months, there 
will be a new President. And I think that there are two courses 
available to you as you close out the remaining 6 months of 
your tenure as Attorney General: under one course, that you 
will initiate no major investigations, raise no important 
questions about the conduct of the Bush administration relative 
to the treatment of detainees; the other possibility is that 
you will follow what I think is the clear standard of the law 
within your own Department and initiate those investigations.
    Under the Attorney General Guidelines, which were signed by 
John Ashcroft in 2002 and remain in effect, a preliminary 
inquiry should be undertaken when there is information or an 
allegation which indicates the possibility of criminal activity 
and whose responsibility requires some further scrutiny beyond 
checking initial leads. This is a pretty low standard.
    Now, we have had reports, a variety of reports. Major 
General Antonio Taguba, who led the United States Army's 
official investigation of Abu Ghraib, had this to say recently, 
and I quote: ``The Commander in Chief and those under him 
authorized a systematic regime of torture.'' These are Major 
General Taguba's words, not mine. ``There is no longer any 
doubt as to whether the current administration has committed 
war crimes,'' the general said. ``The only question that 
remains is whether those who ordered the use of torture will be 
held accountable.''
    And then, of course, the Justice Department's Inspector 
General issued a troubling report about the FBI's involvement 
in detainee abuse and concluded, and I quote, ``We found that 
the FBI did not respond to repeated requests from its agents in 
the military zones for guidance regarding detainee treatment.''
    I have written several letters--Senator Whitehouse joined 
me in those letters--to you and to others asking if you were 
going to investigate whether there was any criminal wrongdoing 
by members of this administration relative to the establishment 
of standards for the treatment of detainees and the use of 
torture. And the responses which I received have not been 
satisfying. You have said that no one who relied in good faith 
on the Department's past advice should be subject to criminal 
investigation for actions taken in reliance on that advice.
    That was not what we suggested. Rather, we suggested that 
the Justice Department investigate and explore whether 
waterboarding was authorized and whether those who authorized 
it violated the law.
    Now, we have written to the Office of Professional 
Responsibility and asked them what are they doing, what are 
they looking into. And in February, they wrote back to us and 
said that they have a pending investigation, to be released--or 
at least a report to be released, depending on your approval of 
its release.
    I would like to give you this opportunity at this hearing 
to tell us: Will you follow Attorney General Ashcroft's 
standard, which he signed and is still in effect, to 
investigate any wrongdoing relative to the treatment of 
detainees? Will you authorize the release of this Office of 
Professional Responsibility report? Can we expect in the last 6 
months of this administration that you will step away from some 
of the things that have occurred in the past and make a clear 
break and initiate this investigation?
    Attorney General Mukasey. You have asked a variety of 
questions and made a variety of statements about a variety of 
situations, and it is hard to sit and unpack them all. But the 
treatment of detainees was the subject of at least a dozen or 
more investigations at the Department of Defense, which has 
principal custody of them, as you know. Many of those 
investigations resulted in not only discipline but in a 
prosecution by court-martial of people who were involved in 
that activity.
    So far as the OIG report with respect to the conduct of the 
FBI, it recommended no criminal reference with regard to 
anything that any FBI agent did and, indeed, pointed out that 
one of the investigations that was conducted by the Department 
of Defense came in response to reports received from the FBI.
    The FBI's role there, as I read the report, was a positive 
one, not a negative one. There were people who responded and 
who did what they should have done. And that is what I took 
away from that report.
    Senator Durbin. What about the CIA or civilian or political 
appointees who authorized the conduct?
    Attorney General Mukasey. Any CIA agent who acted in good-
faith reliance on an opinion by the Department of Justice that 
his or her conduct was lawful cannot and should not be 
prosecuted for the very simple reason that if they are, then 
any opinion by the Department of Justice to anybody on the 
front lines is totally and completely useless.
    Senator Durbin. So let's take it to the next step. What 
about those at the Department who authorized that conduct, 
which has now been found to be wrong?
    Attorney General Mukasey. It is in essence the same answer. 
It refers back--
    Senator Durbin. Who is in charge if it is the same answer? 
At some point someone has to be held accountable.
    Attorney General Mukasey. It is the same answer. It is the 
answer that was really given in Jack Goldsmith's book, and that 
is that there is a cycle of demand for aggressive opinions and 
then a reaction to that. I think what lawyers have to do is 
adhere to the law and not concern themselves with what might be 
politically acceptable later on. And if we go after them and 
prosecute them, then that is exactly what they are going to be 
concerned with. They ought to--
    Senator Durbin. May I suggest the standard is legally 
acceptable. Isn't that what Attorney General Ashcroft's 
standard is here, legally not politically acceptable?
    Attorney General Mukasey. That remains the standard. That 
always was the standard.
    Senator Durbin. And isn't that your responsibility to 
enforce?
    Attorney General Mukasey. It was, and it is, and I do.
    Senator Durbin. And do you believe that--well, let me ask 
you this: Are you going to release this report, which Mr. 
Jarrett has referred to in February, the results of their 
investigation of the Office of Professional Responsibility? 
Will you approve the release of that report?
    Attorney General Mukasey. I am not going to approve the 
release of an OPR report with respect to the conduct of 
professionals. If professionals have to be disciplined, they 
can be disciplined in a way that is either private or public, 
depending on the nature of their violation. Again--
    Senator Durbin. Mr. Chairman, I would like to ask that this 
letter be part of the record, and I would like to quote from 
it.
    Chairman Leahy. Without objection.
    Senator Durbin. Marshall Jarrett, counsel from the Office 
of Professional Responsibility, February 18, 2008, and I quote: 
``Upon completion of our investigation, we will provide you 
with our results.'' This is directed to Senator Whitehouse and 
myself. ``Moreover, because of the significant public interest 
in this matter, OPR will consider releasing to Congress and the 
public a non-classified summary of our final report.''
    Are you saying that you will not approve the release of 
that report?
    Attorney General Mukasey. If OPR wants it released, it will 
be released.
    Senator Durbin. So you give your approval of that release?
    Attorney General Mukasey. If OPR wants it released, it will 
be released.
    Senator Durbin. That is progress.
    I yield. Thank you, Mr. Chairman.
    Chairman Leahy. Senator Biden.
    Senator Biden. Thank you very much.
    General, let's say in the general territory here, 
obviously, the Supreme Court's decision several weeks ago on 
Guantanamo Bay and habeas corpus received a great deal of 
coverage and publicity and conversation and debate. What steps 
has the Department made to respond to and implement the Court's 
decision?
    Attorney General Mukasey. I am sorry. I did not hear the--
    Senator Biden. I beg your pardon. I will speak more 
clearly. The Supreme Court's decision of several weeks ago 
relating to the right of habeas corpus of those detained at 
Guantanamo Bay, what steps has the Department made to respond 
to and implement the Court's decision?
    Attorney General Mukasey. The Department has been working 
with the district court in the District of Columbia to arrange 
an orderly way of determining when habeas petitions will be 
heard, how they will be heard, what evidence will be received, 
and how it will be received. All of--
    Senator Biden. Is that in the form of a negotiation with 
the court or--not negotiation. I mean, I am not trying to be 
confrontational. I am just trying to understand. Is it in a 
sense a mechanical thing, trying to figure out how to manage 
this?
    Attorney General Mukasey. I am not certain what you mean by 
``mechanical,'' but, yes, it is figuring out how to manage it. 
It is figuring out what evidence can be received, what the 
practical considerations are. That word appeared throughout the 
Boumediene decision; that is, that the decision was to be made 
practically given what was possible.
    Senator Biden. Right, yes.
    Attorney General Mukasey. Given what evidence was 
available.
    Senator Biden. All I am trying to get at is in--
    Attorney General Mukasey. We are in--
    Senator Biden [continuing]. Implementing the decision, when 
do you anticipate you will come up with, for lack of a better 
phrase, your regime-implemented decision?
    Attorney General Mukasey. We are in discussions with the 
court and with opposing counsel. That depends on two people who 
are not us.
    Senator Biden. Okay. Let me switch areas here and go back 
to aid to local law enforcement, if I may, and I realize, you 
know, we are bouncing you all over the place. It is a big 
Department, so maybe you need to call on--you do not 
necessarily have to, but if you need to call on staff for any 
of the detail here, I understand.
    The Violent Crime Task Force, as DOJ currently uses that 
phrase, is a repackaging of the funding that used to go to 
State and local governments under the Byrne grants, the JAG 
grants, and the COPS program. That was where the Violent Crime 
Task Forces were. That was where, you know, the Byrne grants 
and the JAG grants were all--so you have repackaged the funding 
to State and locals under those three programs.
    DOJ requested in the President's 2009 budget $200 million 
for Violent Crime Task Forces--and I am not using the word 
``repackaging'' in a value judgment, but reordering how you 
help--repackaging how you help local law enforcement. They have 
requested in the 2009 budget $200 million for the Violent Crime 
task Forces, and you also requested $200 million for another 
repackaging which you call ``The Byrne Public Safety and 
Protection Program.'' The bottom line is that direct support, 
as I read your budget, to State and local law enforcement is 
about $400 million under what used to be Byrne, COPS, and JAG.
    Now, when--and this is not--this is a little history here. 
When the administration came into office, the total amount of 
support from the Federal Government to State and local law 
enforcement was about $2.1 billion. That was under the COPS 
program, the Byrne grants, and the JAG programs. Under the 
successor DOJ programs, you calling the Violent Crime Task 
Forces and the Byrne Public Safety and Protection rubric, the 
Department has requested a total of $404 million this year. 
Now, that is a 81-percent cut under this administration. And it 
is a cut of, less than that, but about $500 million just from 
your last year's budget. Last year overall funding for State 
and local law enforcement was $908 million for Byrne, JAG, and 
COPS. Now it is $404 million.
    Is that because you think--I mean, can you give me the 
reason why you have cut in half in a year the amount of local 
law enforcement funding that is going--that you are proposing 
go to the States?
    Attorney General Mukasey. Senator, your numbers, first of 
all, don't count grants for child safety and juvenile justice. 
They don't count grants for violence against women.
    Senator Biden. Well, I did not count those either. I did 
not count those in the numbers. The $908 million did not 
include violence against women or juvenile justice funding. 
They have always been separate. They have been a separate 
account. They have never been part of Byrne. They have never 
been part of JAG. They have never been part of the COPS 
program. I am comparing apples and apples.
    Attorney General Mukasey. What we found is that targeted 
grants that are targeted not only at particular areas where 
crime has spiked, but also at areas where we can focus our own 
activities in conjunction with State and locals are the most 
effective. And that is the way--
    Senator Biden. But you need half--well, Byrne grants were 
targeted, the COPS program was targeted, as well as the JAG 
program was targeted. And last year, your targeting amounted to 
$908 million. This year, under a slightly different targeting 
system, you are $404 million.
    Attorney General Mukasey. The COPS program was never meant 
to be a permanent support program. What it was meant to do was 
to give temporary grants to State and local authorities to 
enhance their police forces.
    Senator Biden. Wrong. I wrote the COPS program with my own 
little paw. The COPS program was intended to kick-start a 
community policing program nationwide, and the intention was, 
if it worked, it would be reauthorized, which it was on two 
occasions. The decision of this administration was to no longer 
reauthorize that program. I understand that. That is their 
judgment. But it was not--and look at the language when I wrote 
the bill and when it passed on the floor--that if it worked, 
which it did, the intention of the Congress was that it would 
be reauthorized. It was reauthorized twice.
    Attorney General Mukasey. Obviously, I take your 
correction. You wrote the legislation. My information was that 
that was supposed to attract further State and local funding 
for local police--
    Senator Biden. It was.
    Attorney General Mukasey [continuing]. That had been 
initially funded federally.
    Senator Biden. It was, and then it was, if it worked, it 
would continue because, you know, that old expression Ronald 
Reagan used to use: ``If it ain't broke, don't fix it.'' It was 
not broke. Violent crime came down under this Act. I do not 
want to argue the COPS program per se. I am trying to get at 
the rationale--and my time is up here--the rationale why in 1 
year the targeted programs, however you characterize them, 
comparing apples and apples, those programs targeted to Violent 
Crime Task Force was done under the COPS bill. The JAG 
program--anyway, so why is there--why the cut in 1 year of 
about $500 million?
    Attorney General Mukasey. The fact is that we have had a 
1.7-percent reduction in violent crime. We have a slightly more 
than 2-percent reduction in property crime. We have had spikes 
in particular areas. We have tried to focus our activities in 
those particular areas where--
    Senator Biden. So you just don't think that much is needed. 
Is that the honest answer?
    Attorney General Mukasey. We have tried to target the funds 
that we have.
    Senator Biden. Well, fund--Okay. Well, Okay. There are 
still about 17,000 murders a year. You know, I find that--you 
know, we have really dumbed down the definition of ``success.'' 
Crime is down, that is true, 1.6 percent, I think. But, anyway, 
my time is up. I yield. There is about 10 minutes left in the 
vote, so what I suggest is you use the rest of the time, 
adjourn, by that time, Senator Leahy will be back.
    Senator Whitehouse. We may recess briefly.
    Senator Biden. Yes, you may have to recess, but it will 
only be a minute or two, General, if there was a hiatus here.
    I yield to my colleague.
    Senator Whitehouse [presiding]. I appreciate it. Thank you, 
Chairman.
    Attorney General, I would like to talk a little bit with 
you about executive orders. Executive orders very often govern 
particularly important matters. In my role on the Intelligence 
and Judiciary Committees, I have been obviously exposed to 
Executive Order 12333, which is the one that purported to 
protect Americans when they traveled overseas from being 
wiretapped by their Government. That one is about to be 
overtaken by the FISA bill whose vote, again, is very shortly.
    Another one is 13440, which is the executive order that is 
intended to establish minimum standards for the appropriate and 
lawful treatment of alien detainees consistent with the Geneva 
Conventions. This executive order has been criticized by the 
Judge Advocates General for all branches of the armed services, 
but it is the executive order on which the administration 
relies in indicating that it has ``clear rules,'' I think is 
the administration's phrase, for detainee treatment. And the 
White House has said that interrogations must be done ``with 
safeguards and under the rule of law,'' which I view as being 
in part this executive order.
    Now, you and I have had an exchange about executive orders 
in your nomination. You indicated should an executive order 
apply to the President and he determines that the order should 
be modified, the appropriate course would be for him to issue a 
new order or amend the prior order. And I think that is an 
accurate statement. I happen to agree with that.
    What concerns me, to take us back to our favorite place, 
OLC again, is that during my course of my review of the OLC 
opinions, I came across the following opinion of the Department 
of Justice by OLC: 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.
    Is that rule still in force at the Department? And if that 
is the case, can the President disregard Executive Order 13440 
governing the treatment of detainees without amendment or 
information to Congress or the American people?
    Attorney General Mukasey. I think it is important or at 
least useful to analyze what the nature is of an executive 
order. An executive order is a direction by the President that 
the executive conduct itself in a certain way. The President is 
free to change that order at his view of how the executive 
should behave and direct that it--
    Senator Whitehouse. Anytime he wants, and there is a 
procedure for doing so.
    Attorney General Mukasey. And direct that it behave 
differently. There are--
    Senator Whitehouse. The question is: Can he leave an 
executive order in place and act in violation or derogation of 
it without ever going back and changing it just because he is 
the President?
    Attorney General Mukasey. It is not a violation of it. It 
is his order or an executive order to start with. I can imagine 
circumstances in which it would be not only possible but 
advisable for a President not to change an executive order when 
he finds out information that directs the Government should go 
in another direction. For example, if an executive order 
directed that a particular country be treated as not violative 
of certain norms and, therefore, eligible for certain 
privileges, and he came by classified information that told him 
otherwise, he would be obligated, it seems to me, to reimpose 
those restrictions on that country. It would be inadvisable for 
him to file an amended executive order and put them on notice 
that he had come into possession of that classified 
information.
    Senator Whitehouse. Ever?
    Attorney General Mukasey. Beg your pardon?
    Senator Whitehouse. Ever.
    Attorney General Mukasey. You say ``ever? ''
    Senator Whitehouse. Ever.
    Attorney General Mukasey. It would certainly be inadvisable 
for--
    Senator Whitehouse. I can understand there are timing 
considerations involved here. Something could happen rather 
suddenly, and you would have to go through the process--
    Attorney General Mukasey. If there comes a time--if there 
comes a time--
    Senator Whitehouse. Ultimately--
    Attorney General Mukasey [continuing.] When it is advisable 
and possible, then it is advisable and possible. It may never 
be possible.
    Senator Whitehouse. So I conclude from your answer that the 
existence of Executive Order 13440 can give us no assurance 
that the President is actually complying with it.
    Attorney General Mukasey. I think the existence of 
Executive Order 13440 suggests that the President is complying 
with it.
    Senator Whitehouse. Suggests, but can give us no assurance.
    Attorney General Mukasey. The President is--having issued 
an order, is free to issue contrary directions.
    Senator Whitehouse. So the answer to my question is yes, it 
can give us no assurance that the President is following it.
    Attorney General Mukasey. I think your question suggests a 
level of uncertainty that, with due respect, I think is 
unwarranted in the situation that you mention.
    Senator Whitehouse. Well, a lot of things that we were 
concerned were unwarranted appear to have become true. So here 
we are. But I think it is important to pin it down because the 
question of how we treat detainees is significant, and if 13440 
does not, in fact, protect us, then it is important for us to 
know in Congress. It is one of the reasons I think the FISA 
statute is so important, that it repairs the limit of 12333.
    There are 3 minutes left on the vote, so I have to go so I 
can get there. I know that Chairman Leahy is on his way back 
and wishes to be here, so I apologize for this interruption, 
Attorney General, but the Committee will stand in recess until 
the return of the Chairman, which should only be a few moments. 
We are in recess.
    [Recess at 12:07 p.m., to 12:14 p.m.]
    Chairman Leahy. Only because of the time when the Attorney 
General is walking back to his seat, I would just note that 
whether somebody is for or against the war in Iraq, maybe we 
should all agree that the history of contractor abuse in Iraq 
has been a disgrace for this Nation. We saw the degrading and 
inhumane techniques used by contract interrogators on detainees 
at Abu Ghraib prison, something that hurt us throughout the 
world; the unjustified killings of 17 unarmed civilians by 
contract security guards in Nisour Square in Baghdad; sexual 
assault by contractors of U.S. women working in Iraq. This 
worries me a great deal, but I have not found any of them held 
accountable under the law by the Justice Department. There have 
been 25 cases of detainee abuse in Iraq that have been referred 
for prosecution. The Justice Department has not brought charges 
in a single case. Ten months since the Nisour Square killings, 
no action, even though the FBI concluded the shootings were 
unjustified.
    Several women working in Iraq have testified before 
Congress that they were raped or assaulted by U.S. contractors, 
but nobody has done anything. And there have been no criminal 
prosecutions in U.S. courts on these cases from Iraq of 
Americans breaking the law.
    Why has the Justice Department not taken stronger action to 
hold contractors in Iraq accountable under U.S. law?
    Attorney General Mukasey. I think the Justice Department 
has taken and is taking action with respect to contractor abuse 
in Iraq.
    Chairman Leahy. Has anybody been convicted?
    Attorney General Mukasey. Can I get my notes?
    Chairman Leahy. Sure.
    Attorney General Mukasey. Thanks.
    [Pause.]
    Chairman Leahy. I am not aware of anybody who has been 
convicted.
    Attorney General Mukasey. It is my understanding that there 
have been 13 prosecutions and 8 convictions. That said, there 
have been--
    Chairman Leahy. Contractor abuses?
    Attorney General Mukasey. Alleged crimes by employees of 
contract personnel in Iraq based on referrals from the 
Department of Defense or the Department of State.
    Chairman Leahy. Can you give me a list of those?
    Attorney General Mukasey. I will provide you with a list of 
those.
    Chairman Leahy. Thank you.
    Attorney General Mukasey. As far as particular cases that 
you referred to, we generally do not acknowledge the existence 
of pending investigations, but we have acknowledged that the 
September 16, 2007, shooting in Nisour Square is the subject of 
an investigation--
    Chairman Leahy. And you will let us know of which ones have 
actually had convictions?
    Attorney General Mukasey. Yes. Yes, I will. And I just want 
to point out one other thing, if I may. It is enormously 
difficult, particularly when we rely on initial investigations 
by the Department of State and by the Department of Defense and 
we have FBI agents trying to conduct investigations in a war 
zone, to bring criminal prosecutions that pass the test of an 
American court.
    Chairman Leahy. I understand it is always difficult, but 
this country has always been able to do it. In fact, Senator 
Grassley and I introduced a bill to extend the statute of 
limitations for criminal fraud in war zones like Iraq, 
something we have done in every other war. Do you support that 
bill?
    Attorney General Mukasey. If statutes of limitation are 
what are interfering with our ability to bring prosecutable 
cases, I am in favor of extending them. And, again, we have 
brought successful prosecutions. Some cases involve allegations 
that do not wash out, and there is nothing we can do.
    Chairman Leahy. Well, I understand that. I spent enough 
years as a prosecutor to know that not every accusation is 
going to be a criminal matter. But we should expand the 
Military Extraterritorial Jurisdiction Act, MEJA. I hope you 
would support that.
    I also wrote to you several months ago--and here is 
something that can be done easily--with other Senators about a 
Board of Immigration Appeals matter of A.T. It is a woman 
seeking asylum in this country based on a fear of continuing 
persecution arising from the brutal practice of female genital 
mutilation, FGM. I thought we had understood, had an 
understanding years ago, that this country would stand on the 
rights of human rights on this. I got your reply yesterday. The 
BIA denied the asylum seeker's claim, said she had already been 
mutilated, so how could she be further persecuted? That 
rationale has been criticized by the Second Circuit and others.
    You have the authority to overrule the Board of Immigration 
Appeals. Female genital mutilation is widely regarded as a 
serious human rights violation. Why not just use your authority 
and overrule them on this issue? Most people cannot understand 
what the heck they were thinking.
    Attorney General Mukasey. That is a ghastly practice. That 
is an absolutely ghastly practice. I am going to take a look at 
that case. I cannot promise you now that I am going to certify 
it, but I am going to take a look at that case.
    Chairman Leahy. But you could, because of your authority, 
you could once and for all make it very clear where we are on 
this, and I would urge you to.
    Attorney General Mukasey. I promise you that I will 
consider it, and I promise you that I view that practice as 
ghastly.
    Chairman Leahy. Thank you. And let me know--
    Attorney General Mukasey. And that is going to inform that 
consideration.
    Chairman Leahy. I almost hate to get into the question of 
Steven Hatfill. I have refrained from discussing this. I have 
refused to discuss it with the press. I have told them that 
some aspects of it I was aware of were classified, so, of 
course, I could not discuss it. But also considering the fact 
that my life was threatened by an anthrax letter, two people 
died who touched the letter addressed to me that I was supposed 
to open, I am somewhat concerned. What happened? We are paying 
millions of dollars, the indication being that the guy who 
committed the crime went free.
    Attorney General Mukasey. Well, I don't understand ``the 
guy who committed the crime'' to have gone free. What I do 
understand is that--
    Chairman Leahy. Nobody has been convicted.
    Attorney General Mukasey. Not yet.
    Chairman Leahy. And five people are dead.
    Attorney General Mukasey. Yes.
    Chairman Leahy. Hundreds of millions of dollars have been 
spent.
    Attorney General Mukasey. That case is under active 
investigation, and I need to be very careful about what I say.
    Chairman Leahy. We will not go any further. As I say, I 
feel some reluctance because I was one of the targets. But I 
got to tell you what the families of the people who died went 
through, what the families of the people who were crippled went 
through, even what my family went through, a lot of people are 
concerned. And I will not say more because we are in open 
session, but I think you and I should probably have a private 
talk about this sometime.
    Attorney General Mukasey. That is fine.
    Chairman Leahy. And we will adjourn with that. I will put 
my final statement in the record.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Chairman Leahy. I am concerned about the answers on 
waterboarding and secret memos when you say it is not 
necessarily before you now. I am concerned that OLC opinions, 
whether you are relying on them today or not, serve as 
precedent in the future. You said, when Senator Durbin and I 
asked you on January 30th, ``I think those opinions would be 
considered principally in light of whether they relate to 
things that are current or not, but I will review them.'' Today 
you said you have not and will not. I would hope you might 
reconsider that.
    You have, I think, one of the most important jobs in all of 
Government. Just because you are the one person--the one 
person--who has the final say that the laws are going to apply 
to everybody in this Nation, and I appreciate that you went 
from a very comfortable life to an around-the-clock life to do 
that. But this whole Nation relies on you. It is not a 
Democratic or Republican issue. So I would hope that after the 
hearing today, if there are some things you may want to 
reconsider, please let us know.
    Attorney General Mukasey. I understand that, and I want to 
tell you, as I told you yesterday, that I am grateful for the 
opportunity to be here, notwithstanding that we might have some 
disagreements about some things, and make sure that I take the 
responsibilities that you eloquently describe seriously, and 
that it brings me up to the standard that I ought to adhere to, 
or as close to it as I can get. Thank you very much for that 
chance.
    Chairman Leahy. And I appreciate the private conversations 
you and I have had, and I appreciate your availability always 
to be there for those.
    Attorney General Mukasey. Thank you.
    Chairman Leahy. With that, we will stand in recess.
    [Whereupon, at 12:24 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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