[Senate Hearing 111-695, Part 1]
[From the U.S. Government Publishing Office]




                                                 S. Hrg. 111-695, Pt. 1
 
             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               ----------                              

          FEBRUARY 5, FEBRUARY 25, MARCH 10, and APRIL 1, 2009

                               ----------                              

                           Serial No. J-111-4

                               ----------                              

                                 PART 1

                               ----------                              

         Printed for the use of the Committee on the Judiciary






                                                 S. Hrg. 111-695, Pt. 1

             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

          FEBRUARY 5, FEBRUARY 25, MARCH 10, and APRIL 1, 2009

                               __________

                           Serial No. J-111-4

                               __________

                                 PART 1

                               __________

         Printed for the use of the Committee on the Judiciary









                  U.S. GOVERNMENT PRINTING OFFICE
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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 ARLEN SPECTER, Pennsylvania
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
BENJAMIN L. CARDIN, Maryland         LINDSEY O. GRAHAM, South Carolina
SHELDON WHITEHOUSE, Rhode Island     JOHN CORNYN, Texas
RON WYDEN, Oregon                    TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
            Bruce A. Cohen, Chief Counsel and Staff Director
              Nicholas A. Rossi, Republican Chief Counsel








                            C O N T E N T S

                              ----------                              

                      WEDNESDAY, FEBRUARY 5, 2009
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   209
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     3
    January 28, 2009, letter.....................................   237

                               PRESENTER

Warner, Hon. John, a former U.S. Senator from the State of 
  Virginia presenting David W. Ogden, Nominee to be Dupty 
  Attorney General...............................................     4

                        STATEMENT OF THE NOMINEE

Ogden, David W., Nominee to be Deputy Attorney General U.S. 
  Department of Justice..........................................     7
    Questionnaire................................................    44

                         QUESTIONS AND ANSWERS

Responses of David W. Ogden, to Questions submitted by Senators 
  Coburn, Grassley, Kyl, Sessions, Specter.......................   104

                       SUBMISSIONS FOR THE RECORD

Allen, Ernie, President & CEO, National Center for Missing & 
  Exploited Children, letter.....................................   159
Alliance Defense Found, Defending our First Liberty, letter......   160
American Psychological, Norman B. Anderson, Ph.D., Chief 
  Executive Officer..............................................   166
Anti-Defamation Leaque, Glen S. Lewy, National Chair, New York, 
  New York, letter...............................................   168
Bellinger, John B., III, 4026 North 25th Street, Alrlington, 
  Virginia, letter...............................................   170
Blum, Jeffrey M., Attorney-at-Law, New York, New York, letter....   171
Brand, Rachel L., Wilmer Cutler Pickering Hale and Dorr LLP, 
  Washington, D.C, letter........................................   176
Brinkmann, Beth S., Morrison & Foerster, LLP, Washington, D.C., 
  letter.........................................................   177
Brown, Reginald J., Wilmer Cutler Pickering Hale and Dorr LLP, 
  Washington, D.C, letter........................................   178
Campbell, Nancy Duff, Co-President and Marcia D., Greenberger, 
  Co-President, National Women's Law Center, Washington, D.C., 
  letter.........................................................   179
Cappuccio, Paul T., Time Warner Inc, New York, New York, letter..   180
Cooney, Manus, Potomac, Maryland, letter, letter.................   181
Community Anti-Drug Coalitions of America (CADCA), Arthur T. 
  Dean,, Major General U.S. Army, Retired, Chairman and CEO, 
  Alexandria Virginia, letter....................................   182
 Concerned Women for America's (CWA), Wendy Wright, President, 
  Washington, D.C., letter.......................................   183
Eagle Forum, Colleen Holmes, Executive Director, Alton, Illinois, 
  letter.........................................................   186
Family Research Council (FRC), Thomas McClusky, Vice President 
  for Government Affairs, Washington, D.C., letter...............   187
Federal Law Enforcement Officers Association, J. Adler, National 
  President, Lewisberry, Pennsylvania, letter....................   188
Frederick, David C., Kellogg, Huber, Hansen, Todd, Evans & Figel, 
  P.L.L.C, Washington, D.C., letter..............................   190
Gansler, Douglas F., Attorney General, State of Maryland, 
  Baltimore, Maryland, letter....................................   191
Geller, Kenneth S., Mayer Brown LLP, Washington, D.C., letter....   192
Gerson, Stuart M., January 22, 2009, letter......................   193
Gorelick, Jamie S., Wilmer Cutler Pickering Hale and Dorr LLP, 
  Washington, D.C., letter.......................................   194
Gregoire, Christine O., Governor, State of Washington, Olympia, 
  Washington, letter.............................................   195
Harris, Jo Ann, Attorney at Law, New York, New York, letter......   196
Horowitz, Michael E., Cadwalader, Wickersham & Taft LLP, 
  Washington, D.C., letter.......................................   197
Hoyt, Robert F., February 4, 2009, letter........................   198
Judge Advocate General, January 22, 2009, letter.................   200
Keisler, Peter D., Sidley Austin, LLP, Washington, D.C., letter..   203
Lamm, Carolyn B., White & Case, Washington, D.C., letter.........   204
Leadership Conference on Civil Rights, and undersigned 
  Organizations, Washington, D.C., letter........................   206
Leary, Mary Lou, The National Center for Victims of Crime, 
  Washington, D.C., letter.......................................   208
Lee, Bill Lann, Lewis, Feinberg, Lee, Renaker & Jackson, P.C., 
  Attorneys at Law, Oakland, California, letter..................   211
Levin, Daniel B., White & Case, Washington, D.C., letter.........   213
Kerlikowske, Gil, President, Major Cities Chiefs Association, 
  Seattle, Washington, letter....................................   214
McCartney, Kevin R., Senior Vice President Government Relations, 
  Washington, D.C., letter.......................................   215
Miller, Thomas J., Attorney General, Des Monies, Iowa, letter....   216
National Association of Police Organizations, Inc., William J. 
  Johnson, Executive Director, Alexandria, Virginia, letter......   217
National Congress of American Indians, Jacqueline Johnson Pata, 
  Washington, D.C., letter.......................................   218
National District Attorneys Association, Joseph I. Cassilly, 
  President, Alexandria, Virginia, letter........................   219
National Fraternal Order of Police, Chuck Canterbury, National 
  President, Washington, D.C., letter............................   220
National Narcotic Officers' Associations Coalition, Ronald E. 
  Brooks, President, West Covina, California, letter.............   221
National Sheriffs' Association, David A., Goad, Sheriff, 
  President, and Aaron D. Kennard, Executive Director, 
  Alexandria, Virginia, letter...................................   222
Ogden, David W., Nominee to be Deputy Attorney General U.S. 
  Department of Justice, statement...............................   223
O'Neil, Catherine M., Associate Deputy Attorney General, 
  Washington, DC:
    July 25, 2005, letter........................................   225
    July 25, 2005, letter........................................   226
Partnership for a Drug-Free America, Stephen J. Pasierb, 
  President and CEO, New York, New York, letter..................   227
Patrick, Deval L., Governor, Milton, Massachusetts, letter.......   228
Phillips, Carter G., Sidley Austin LLP, Washington, D.C., letter.   229
Police Executive Research Forum, Wexler, Chuck, Executive 
  Director, Washington, D.C., letter.............................   230
Price, Daniel M., January 22, 2009, letter.......................   231
Religious Alliance Against Pornography, Cardinal William H. 
  Keeler, Archbishop Emeritus of Baltimore, Rev. Jerry R. Kirk, 
  Co-Chair, and Rich Schatz, Executive Committee, Cincinnati, 
  Ohio, joint letter.............................................   233
Robinson, James K., Cadwalader, Wickersham & Taft LLP, 
  Washington, D.C., letter.......................................   235
Steggerda, Todd, WilmerHale, Washington, D.C., letter............   238
Students for Life of America, Hawkins, Kristan, Executive 
  Director, and miscellaneous companies, letter..................   240
Taranto, Richard G., Farr & Taranto, Washington, D.C., letter....   244
Terwilliger, George J., White & Case, Washington, D.C., letter...   245
Thompson, Larry D., Senior Vice President, Government Affairs, 
  PEPSICO, Purchase, New York, letter............................   247
Troy, Daniel E., Senior Vice President and General Counsel, 
  GlaxoSmithKline, Philadelphia, Pennsylvania, letter............   248
Warner, Hon. John, a former U.S. Senator from the State of 
  Virginia.......................................................   249
Warner, Hon. Mark, a former U.S. Senator from the State of 
  Virginia.......................................................   251
Waxman, Seth P., WilmerHale, Washington, D.C., letter............   252
Webb, Hon. Jim, a U.S. Senator from the State of Virginia........   253
Wells, H. Thomas, Jr., Maynard Cooper & Gale PC, Attorneys at 
  Law, Birmingham, Alabama, letter...............................   254
Zubler, Todd C., Wilmer Hale, Washington, D.C, letter............   255
                              ----------                              

                       TUESDAY, FEBRUARY 25, 2009

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page


Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................   257
    prepared statement...........................................   439
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   474

                               PRESENTERS

Bayh, Hon. Evan, a U.S. Senator from the State of Indiana 
  presenting Dawn E. Johnsen, Nominee to be Assistant Attorney 
  General, Office of Legal Counsel, Department of Justice........   259

                       STATEMENT OF THE NOMINEES

Johnsen, Dawn E., Nominee to be Assistant Attorney General Office 
  of Legal Counsel, Department of Justice........................   261
    Questionnaire................................................   264
Kris, David S., Nominee to be Assistant Attorney General, 
  National Security Division, Department of Justice..............   311
    Questionnaire................................................   313

                         QUESTIONS AND ANSWERS

Responses of Dawn E. Johnsen, to Questions submitted by Senators 
  Cornyn, Graham, Grassley, Hatch, Sessions, Coburn and Specter..   367
Responses of David S. Kris, to Questions submitted by Senator 
  Sessions and Specter...........................................   411

                       SUBMISSIONS FOR THE RECORD

Alliance Defense Fund, Defending Our First Liberty, Washington, 
  D.C., letter...................................................   415
Anti-Defamation Leaque, Deborah M. Lauter, Director, New York, 
  New York, letter...............................................   421
Ashcroft, John, Ashcroft Group, LLC, Washington, D.C., letter....   422
Baker, Stewart A., Washington, D.C., letter......................   423
Bayh, Hon. Evan, a U.S. Senator from the State of Indiana........   424
Bellinger, John B., III, Arnold & Porter, Washington, D.C., 
  letter.........................................................   425
Berenson, Bradford A., Sidley Austin LLP, Washington, D.C., 
  letter.........................................................   426
Caminker, Evan H., Dean and Branch rickey Collegiate Professor, 
  University of Michigan Law School, Ann Arbor Michigan, letter..   428
Chertoff, Michael, Chief, Homeland Security, Washinton, D.C......   429
Cole, David, Co-Academe Director, Center for Transnational Legal 
  Studies, High Holborn, London, letter..........................   430
Cullen, Richard, McGuire Woods LLP, Richmond, Virginia, letter...   432
Days, Drew S., III, Alfred M. Rankin Professor of Law, Yale Law 
  School, New Haven, Connecticut, letter.........................   433
Dean, Kate, Executive Director, U.S. Internet Servie Provider 
  Association, Washington, D.C., letter..........................   435
Dellinger, Walter, Assistant Attorney General, Office of Legal 
  Counsel, Washington, D.C., letter..............................   438
Gorelick, Jamie S., Wilmer Cutler Pickering Hale and Dorr LLP, 
  Washington, D.C.:..............................................
    January 23, 2009, letter.....................................   441
    February 2, 2009, letter.....................................   442
Hamilton, Lee H., Woodrow Wilson Internationl Center for Scholrs, 
  Wahington, D.C.,...............................................   443
Hawkins, Kristan, Executive Director, Students for Life of 
  America; Tony Perkins, President, Family Research Council; 
  David N. O'Steen, Ph.D., Exective Director, National Right to 
  Life Committee; Charmaine Yoest President, Americans United for 
  Life; Austin Ruse, President, Catholic Family and Human Rights 
  Institute; Marjorie Dannenfelser, President, Susan B. Anthony 
  List, Kris Mineau, President, Massachusetts Family Institute; 
  Bradley Mattes, Executive Director, life Issues Institute, 
  Phyllis Schlafly, President, Eagle Forum, J.C. Willke, MD, 
  President, International Right to Life Federation; Thomas 
  Brejcha, President & Chief Counsel, Thomas More Society; Peter 
  Breen, Executive Director & Legal Counsel, Thomas More Society; 
  Joseph A. Brinck, President, Sanctity of Life Foundation; 
  Jennifer Giroux, executive Director, Women Influencing the 
  Nation; Samuel B. Casey, General Counsel, Law of Life Project 
  Advocates International; Gary Bauer, President, American 
  Values; Brian Burch, President of CatholicVote.org; David 
  Bereit, national Director, 40 Days for Life; Phil Burress, 
  President, Citizens for Community Values; Jill Stanek, RN, 
  WorldNetDaily, Columnist; Peggy Hartshorn, President, Heartbeat 
  International; Michael geer, President, Pennsylvania Family 
  Institute; Bryan Kemper, President, Stand True-Christ Centered 
  Pro-life; John t. Bruchalski, MD, FACOG, Divine Mercy Care; 
  James Nolan, President, Crossroads Pro-life; Jennifer Kimball, 
  Be.L., Executive Director, Culture of Life Foundation; Jo 
  Tolek, Executive Director, Human Life Alliance; Dean Nelson, 
  Executive Director, Network of Politically Active Christians; 
  Chris Slattery, President, Expectant Mother Care-EMC FrontLine 
  Pregnancy Centers, New York, New York; Rev. Louis Shldon, 
  Chairman, Traditional Values Coalition; Andrea Lafferty, 
  Executive Director, Traditional Values Coalition, joint letter.   444
Hill, Baron P., a Representatives in Congress from the State of 
  Indiana, letter................................................   449
Hunger, Frank W., Attorneys at Law, Walker, Tipps & Malone PLC, 
  Nashville, Tennessee, letter...................................   450
Johnsen, Dawn E., Nominee to be Assistant Attorney General Office 
  of Legal Counsel, Department of Justice, statement.............   451
Keegan, Michael B., People for the American Way, joint letter....   462
Koh, Harold Hongju, Dean and Gerard C & Bernice Latrobe Smith 
  Professor of International Law, New Haven Connecticut, letter..   467
Kreezko, Alan J., January 23, 2009, letter.......................   469
Kris, David S., Nominee to be Assistant Attorney General, 
  National Security Division, Department of Justice, statement...   470
Leadership Conference on Civil Rights, Alliance for Justice, 
  Asian American Justice Center, Campaign for America's Future, 
  Citizens' Commission on Civil Rights, Human Rights Campaign, 
  Mexican American Legal Defense and Educational Fund, NAACP, 
  NARAL Pro-Choice America, National Abortion Federation, 
  National Council of Jewish Women (NOW), National Partnership 
  for Women & Families, national Senior Citizens Law Center, 
  National Women's Law Center, People for the American Way, joint 
  letter.........................................................   472
Lee, Bill Lann, Attorneys at Law, Lewis, Feinberg, Lee, Renaker & 
  Jackson, P.C., Oakland, California, letter.....................   477
Lee, Ronald D., Partner, Arnold & Porter, Washington, D.C., 
  letter.........................................................   478
Levin, Daniel, Partner, White & Case, Washington, D.C., letter...   480
Levinson, Sanford, W. St. John Garwoord and W. St. John Garwood 
  Jr., Centennial Chair in Law, University of Texas Law School, 
  Austin, Texas, letter..........................................   481
Litt, Robert S., Arnold & Porter, Partner, Washington, D.C., 
  letters........................................................   482
Marcus, Daniel, American University, Washington, D.C., letter....   486
Martin, Kate, Director, Center for National Security Studies, 
  Civil Liberties Think Tank and Advocacy Organization, 
  Washington, D.C., letter.......................................   487
Merletti, Lewis C., Director, Secret Service (Retired), 
  Washington, D.C., letter.......................................   489
Michigan Peaceworks, April 1, 2009, joint letter.................   490
Moss, Randolph D., Wilmer Cutler Pickering Hale and Dorr LLP, 
  Washington, D.C., letters......................................   491
Muller, Scott W., Davis Plk & Wardwell, New York, New York, 
  letter.........................................................   495
National Council of Jewish Women, Nancy Ratzan, New York, New 
  York, letter...................................................   496
Nolan, Beth, Febrary, 24, 2009, letter...........................   497
Olson, Theodore B., Lawyers, Gibson, Dunn & Crutcher LLP, 
  Washington, D.C., letter.......................................   499
Parsons, Richard D., February 5, 2009, letter....................   500
Patrick, Deval L., Governor, Milton, Massachusetts, letter.......   501
Powell, Benjamin A., General Counsel, Office of the Director of 
  National Intelligence, Washington, D.C, letter.................   502
Preston, Stephen W., Lawyer, Wilmer Cutler Pickering Hale and 
  Dorr LLP, Washington, D.C., letter.............................   504
Professors of Law, February 1, 2010 joint letter.................   505
Rabb Harriet S., Vice President & Gerneral Counsel, New York 
  City, New York, letter.........................................   517
Reno, Janet, former Attorney General, Washington, D.C., letters..   518
Reno, Janet, Attorney General, Jamie S. Gorelick, Deputy Attorney 
  General, Patricia Wald, Assistant Attorney General, Legislative 
  Affairs, Eleanor D. Acheson, Assistant Attorney General, Office 
  of Policy Development, Loretta C. Argrett, Assistant Attorney 
  General, Tax Division, Jo Ann Harris, Assistant Attorney 
  General, Criminal Division, Lois Schiffer, Assistant Attorney 
  General Environment and Natural Resources Division, joint 
  letter.........................................................   520
Robel, Lauren, Dean and Val Nolan Professor of Law, Indiana 
  University, Bloomington, Indiana, letter.......................   522
Robinson, James K., Cadwalader, Wickersham & Taft LLP, 
  Washington, D.C., letters......................................   523
Saperstein, Rabbi David, Religious Action Center of Reform 
  Judaism, Washington, D.C., letter..............................   527
Shapiro, Howard M., Wilmer Cutler Pickering Hale and Dorr LLP, 
  Washington, D.C., letter.......................................   528
Shiffrin, Richard L., Deputy Assistant Attorney General, 
  Washinton, D.C., letter........................................   529
Spaulding, Suzanne E., Bingham Consulting, Boston, Massachusetts, 
  letter.........................................................   530
Thompson, Larry D., Senior Vice President, Government Affairs, 
  General Counsel and Secretary, PEPSICO, Purchase, New York, 
  letter.........................................................   532
Treanor, William Michael, Dean, Fordham University, The School of 
  Law,New York, New York, letter.................................   533
Undersigned Women's and Reproductive Health Organizations, joint 
  letter.........................................................   534
Vatis, Michael, Assistant Attorney General, Office of Legal 
  Counsel, Department of Justice, letter.........................   536
Wainstein, Kenneth L., former Homeland Security Advisor, 
  Washington, D.C., letter.......................................   537
Waxman, Seth P., Wilmer Cutler Pickering Hale and Dorr LLP, 
  Washington, D.C., letters......................................   539
Wilkerson, Lawrence B., Washington, D.C., letter.................   541
Williams, Victor, Assistant Professor of Law, Catholic 
  Unive4rsity of America, Washington, DC, letter and attachment..   542
Winston, Judith A., former Undersecretary and General Counsel, 
  Department of Education, Washington, D.C., letter..............   546
Wittes, Benjamin, Senior Fellow and Research Director in Public 
  Law, Brookings, Washington, D.C., letter.......................   547
Wolin, Neal S., Deputy Treasury Secretary, Washington, D.C., 
  letter.........................................................   549
                              ----------                              

                        TUESDAY, MARCH 10, 2009
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Kohl, Herbert, a U.S. Senator from the State of Wisconsin........   551

                               PRESENTERS

Harman, Hon. Jane, a U.S. Representative in Congress from the 
  State of California presenting Christine A. Varney, Nominee to 
  be Assistant Attorney General, Antitrust Division, U.S. 
  Department of Justice..........................................   552
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York preparing Lanny A. Breuer, Nominee to be Assistant 
  Attorney General Criminal Division, U.S. Department of Justice.   554

                       STATEMENT OF THE NOMINEES

Breuer, Lanny A., Nominee to be Assistnat Attorney General 
  Criminal Division, U.S. Department of Justice..................   555
    Questionnaire................................................   557
Varney, Christing A., Nominee to be Assistant Attorney General, 
  Antitrust Division, U.S. Department of Justice.................   618
    Questionnaire................................................   620
West, Tony, Nominee to be Assistant Attorney General, Civil 
  Division, U.S. Department of Justice...........................   676
    Questionnaire................................................   678

                          QESTIONS AND ANSWERS

Responses of Lanny A. Breuer to Questions submitted by Senators 
  Hatch, Grassley and Specter....................................   747
Responses of Christine Varney to Questions submitted by Senators 
  Grassley, Leahy, Schumer, Cornyn, Feingold, Feinstein, Hatch, 
  Kohl and Specter...............................................   758
Responses of Tony West to Questions submitted by Senators 
  Grassley and Kohl..............................................   784

                       SUBMISSIONS FOR THE RECORD

Adler, J., National President, Federal law Enforcement Officers 
  Association, Lewisberry, PA, letter............................   791
American Bar Association, former chairs, Washington, DC, joint 
  letter.........................................................   793
Angelides, Phil, former Treasurer, State of California, 
  Sacramento, California, letter.................................   796
Arriola, Christopher, Prosecutor, Santa Clara, California, letter   797
Babcock, Barbara Allen, Judge John Crown Professor of Law 
  Emerita, Stanford, California, letter..........................   798
Baer, William J., Arnold & Porter LLP, Washington, DC, letter....   799
Balto, David A., Senior Fellow, Center for American Progress 
  Action Fund, Washington, DC, statement.........................   800
Bar Association of San Francisco, Russell S. Rocca, President, 
  San Francisco, California, letter..............................   816
Bass, Karen, Speakerof the Assembly, Sacramento, California, 
  letter.........................................................   818
Bayless, David B., Covington & Burling LLP, San Franciso, 
  California, letter.............................................   819
Bellows, Randy I., February 19, 2009, letter.....................   821
Bennett, Robert S., Skadden, Arps, Slate, Meagher & Flom LLP, 
  Washington, DC, letter.........................................   823
Bensinger, Peter, former Administrator, Jack Lawn, former 
  Administrator, and Asa Hutchinson, former Administrator, U.S. 
  Drug Enforcement Administration, joint letter..................   824
Berenson, Bradford A., Sidley Austin LLP, Washington, DC, letter.   825
Bittman, Robert J., White & Case LLP, Washington, DC, letter.....   827
Breuer, Lanny A., Nominee to be Assistant Attorney General 
  Criminal Division, U.S. Department of Justice, statement          828
Brinkmann, Beth S., Morrison & Foerster, LLP, Washington, DC, 
  letter.........................................................   833
Brosnahan, James J., Morrison & Foerster, LLP, Washington, DC, 
  letter.........................................................   834
Brown, Edmund G., Jr., Attorney General, State of California, 
  Sacramento, California, letter.................................   836
Brown, Willie L, Jr., Attorney at Law, San Francisco, California, 
  letter.........................................................   838
Cacheris, Plato, Attorney at Law, Trout Cacheris, Washington, DC, 
  letter.........................................................   839
Chertoff, Michael, Assistant Attorney General, Criminal Division, 
  Washington, DC, letter.........................................   840
Congressional Black Caucus, Representative Barbara Lee, 
  Chairwoman, Representative Emanuel Cleaver, First Vice-Chair, 
  Representative Donna M. Christensen, Second Vice-Chair, and 
  Representative Yvette D. Clarke, Whip, Washington, DC, joint 
  letter.........................................................   841
Conner, Roger, Director, The Advocacy Project and Adjunct 
  Professor of Law, Vanderbilt Law School, Nashville, Tennessee..   843
Cuomo, Andrew M., Attorney General, State of New York, New York, 
  New York, letter...............................................   847
Days, Drew S., III, Yale Law School, New Haven, Connecticut, 
  letter.........................................................   848
Dukakis, Michael S., UCLA, Department of Public Policy, School of 
  Public Affairs, Los Angeles, California, letter................   850
Eshoo, Anna, Representative in Congress, Washington, DC, letter..   851
Fisher, Alice S., Assistant Attorney General, Criminal Division, 
  Washington, DC, letter.........................................   852
Friedrich, Matthew W., Acting Assistant Attorney General, 
  Washington, DC, letter.........................................   853
Gansler, Douglas F., Attorney General, State of Maryland, 
  Baltimore, Maryland, letter....................................   854
Girgenti, Richard H., former Director, Criminal Justice Services, 
  State of New York, New York, New York, letter..................   855
Gorelick, Jamie S., Wilmer & Hale, Washington, DC, letter........   857
Green, Thomas C., Attorney at Law, Sidley Austin, LLP, 
  Washington, DC, letter.........................................   859
Hampton, Ronald E., Executive Director, National Black Police 
  Association, Inc., Washington, DC, letter......................   960
Harris, Jo Ann, Attorney at Law, New York, New York, letter......   862
Heymann, Philip B., James Barr Ames Professor of Law, Director of 
  Center for International Criminal Justice, Harvard Law School, 
  Cambridge, Massachusetts, letter...............................   863
Hibbard, Stephen D., President, Association of Business Trial 
  Lawyers, Northern California, Pleasanton, California, letter...   864
Holtzman, Elizabeth, Counsel, Herrick, Feinstein LLP, New York, 
  New York, letter...............................................   866
Horowitz, Michael E., Cadwalader, Wickersham & Taft LLP, 
  Washington, DC, letter.........................................   868
Hufstedler, Shirely M., Morrison & Foerster LLP, Los Angeles, 
  California, letter.............................................   870
Infante, Edward A., Retired Magistrate, Arbitrator/Mediator, 
  JAMS, San Francisco, California, letter........................   871
Keker, John W., Keker & Van Nest LLP, Law Office, San Francisco, 
  California, letter.............................................   873
Kelley, David N., Cahill Gordon & Reindel LLP, New York, New 
  York, letter...................................................   875
Khoja, Khurshid, President, South Asian Bar Association, San 
  Francisco, California, letter..................................   877
Klein, Joel I., Chancellor, New York City, Department of 
  Education, New York, New York, letter..........................   878
La Bella, Charles G., Attorney at Law, LaBella & McNamara, LLP, 
  San Diego, California, letter..................................   879
Leary, Thomas B., former Federal Trade Commissioner, Hogan & 
  Hartson LLP, Washington, DC, letter............................   880
Lee, Bill Lann, Lewis, Feinberg, Lee, Renaker & Jackson, PC, 
  Oakland, California, letter....................................   882
Lockyer, Bill, Treasurer, State of California, Sacramento, 
  California, letter.............................................   883
Lofgren, Zoe, a Representatives in Congress from the State of 
  California, letter.............................................   885
Madigan, Michael J., Attorney at Law, Orrick, Herrington & 
  Sutcliffe, LLP, Washington, DC, letter.........................   886
Major Cities Chiefs Association, Robert Davis, Vice President, 
  Chief of Polics, San Jose, California, letters.................   887
Marshall, Raymond C., Bingham McCutchen LLP, San Francisco, 
  California, letter.............................................   889
McDavid, Janet L., Hogan & Hartson LLP, Washington, DC, letter...   891
McEnery, Tom, General Partner, The Farmers Union, San Jose, 
  California, letter.............................................   893
Melamed, A. Douglas, Wilmer Hale LLP, Washington, DC, letter.....   895
Melekian, Bernard K., President, California Police Chiefs 
  Association, Sacramento, California, letter....................   896
Milgram, Anne, Attorney General, State of New Jersey, Trenton, 
  New Jersey, letter.............................................   897
Mineta, Norman Y., Vice Chairman, Hill & Knowlton, Inc., 
  Washington, DC, letter.........................................   899
National Association for the Advancement of Colored People, 
  Benjamin Todd Jealous, President & Chief Executive Officer, 
  Baltimore, Maryland, letter....................................   900
National Bar Association, Rodney G. Moore, President, Atlanta, 
  Georgia, letter................................................   902
Morgenthau, Robert M., District Attorney, County of New York, New 
  York, New York, letter.........................................   904
Muris, Timmothy J., former Chair, Federal Trade Commission, and 
  Robert Pitofsky, former Chair, Federal Trade Commission, 
  Washington, DC, joint letter...................................   906
National Association of Drug Court Professionals, C. West 
  Huddleston, III, Chief Executive Officer and Executive 
  Director, Alexandria, Virginia, letter.........................   908
National Association of Police Organizations, Inc., William J. 
  Johnson, Executive Director, Alexandria, Virginia, letter......   909
National Center for Missing & Exploited Children, Ernie Allen, 
  President and Chief Executive Officer, Alexandria, Virginia, 
  letter.........................................................   910
National District Attorneys Association, Joseph I. Cassilly, 
  President, Alexandria, Virginia, letter........................   911
National Fraternal Order of Police, Chuck Canterbury, National 
  President, Washington, DC, letter..............................   912
National Narcotic Officers' Associations Coalition, Ronald E. 
  Brooks, President, West Covina, California, letter.............   913
National Network to End Domestic Violence, Washington, DC:
Break the Cycle, March 9, 2009, letter...........................   914
Else, Sue, President, February 19, 2009, letter..................   916
National Organization of Black Law Enforcement Executives, 
  McMillan, Joseph, National President, Alexandria, Virginia, 
  joint letter...................................................   917
National Partnership for Women & Families, Debra Ness, President, 
  Washington, DC, letter.........................................   918
National Rural Health Association, Beth Landon, President, 
  Washington, DC, letter.........................................   919
Newton, Nell Jessup, Chancellor and Dean, University of 
  California, Hastings College of the Law, San Francisco, 
  California, letter.............................................   920
Parker, Richard G., O'Melventy & Myers LLP, Washington, DC, 
  letter.........................................................   921
Paterson, Eva, President, Equal Justice Society, San Francisco, 
  California, letter.............................................   923
Perkins, Richard D., Retired Chief of Police, City of Henderson, 
  Henderson, Nevada, letter......................................   924
Quinn, Jonathan S., Reed Smith LLP, on behalf of Matthew J. 
  Brief, Brief Carmen & Kleiman, LLP, New York, New York; Lewis 
  H. Chimes, Garrison, Levin-Epstein, Chimes, Richardson & 
  Fitzgerald, P.C., New Haven, Connecticut; Patrick J. Conlon, 
  Houston, Texas; Irving B. Hirsch, Wilson Elser Moskowitz 
  Edelman & Dicker LLP, New York, New York; John B McCusker, 
  McCusker, Anselmi, Rosen, & Carvelli, Florham park, New Jersey; 
  Janet Polstein, Scarsdale, New York; Michael K. Ungar, Simmons 
  & Ungar LLP, San Francisco, California; Gregory Carro, New York 
  County Supreme Court, New York, New York; Katharine T. Cobb, 
  Queens College, CUNY, Flushing, New York; Carey R. Dunne, Davis 
  Polk & Wardwell, New York, New York; Sally Keller, Great Neck, 
  New York; Vincent A. Nagler, Callan, Koster, Brady & Brennan, 
  LLP, New York, New York; Sally Strauss, Mount Sinai Medical 
  Center, New York, New York; Gino A. Zonghetti, Kenny, Stearns & 
  Zonghetti, LLC, New York, New York, joint letter...............   925
Reed, Chuck, Mayor, City of San Jose, Capital of Silicon Valley, 
  San Jose, California, letter...................................   927
Renne, Louise, Partner, Renne Sloan Holtzman Sakai LLP, Public 
  Law Group, San Francisco, California, letter...................   928
Robinson, James K., Cadwalader, Wichersham & Taft LLP, 
  Washington, DC, letter.........................................   930
Rogers, Martha P., Attorney at Law, Ober, Kaler, Grimes & 
  Shriver, Washington, DC, letter................................   932
Reno, Janet, former Attorney General, Washington, DC, letter.....   933
Ross, Simone E., Vice President, Citizens Advisory Council, 
  Metropolitan Police Department, Second District, Washington, 
  DC, letter.....................................................   934
Rule, Charles F., (Rick), Cadwalader, Wickersham & Taft LLP, 
  Washington, DC, letter.........................................   936
Russo, John, City Attorney, city of Oakland, Oakland, California, 
  letter.........................................................   938
Salarno, Harriet, Chair, Crime Victims United of California, 
  Auburn, California, letter.....................................   939
Shawler, Nedra A., President, Charles Houston Bar Association, 
  Oakland, California, letter....................................   940
Shenefield, John H., Counsel, Morgan Lewis, Washington, DC, and 
  James F. Rill, Partner, Howrey LLP, Washington, DC, joint 
  letter.........................................................   941
Silbert, Earl J., Counsel, DLA Piper LLP, Washington, DC, letter.   943
Simon, Timothy Alan, Commissioner, Public Utilities Commission, 
  State of California, San Francisco, California, letter.........   944
Sims, Joe, Jones Day, Washington, DC, letter.....................   946
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania, letter...........................................   948
Sundheim, George ``Duf'', California, letter.....................   949
Swanson, Sauandre R., Assemblymemer, Sixteenth Distract, 
  California Legislature, Sacramento, California, letter.........   950
Thieman, Frederick W., President, The BUHL Foundation, 
  Pittsburgh, Pennsylvania, letter...............................   951
Thompson, Larry D., February 17, 2009, letter....................   954
Varney, Christine A., Nominee to be Assistant Attorney General, 
  Antitrust Division, U.S. Department of Justice, statement and 
  letter.........................................................   955
Villaraigosa, Antonio, Mayor, City of Los Angeles, Los Angeles, 
  California, letter.............................................   960
Waxman, Seth P., WilmerHale LLP, Washington, DC, letter..........   961
West, Tony, Nominee to be Assistant Attorney General, Civil 
  Division, U.S. Department of Justice, statement................   962
Wetmore, Keith C., Chair, Morrison & Foerster LLP, New York, New 
  York, letter...................................................   964
Zeidman, Fred S., Houston, Texas, February 3, 2009, letter.......   966
                              ----------                              

                        WEDNESDAY, APRIL 1, 2009
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   969
prepared statement...............................................  1238
Specter, Hon Arlen, a U.S. Sentor from the State of Pennsylvania.   971

                               PRESENTERS

Bayh, Hon. Evan a U.S. Senator from the State of Indiana 
  presenting David Hamilton Nominee to be U.S. Circuit Judge for 
  the Seventh Circuit............................................   975
Cantwell, Hon. Maria, a U.S. Senator from the State of Washington 
  presenting Gil Kelikowske Nominee to be Director of National 
  Drug Control Policy, Exective Office of the President..........   979
Lugar, Hon. Richard, a U.S. Senator from the State of Indiana 
  presenting David Hamilton Nominee to be U.S. Circuit Judge for 
  the Seventh Circuit............................................   974
Murray, Hon. Patty, a U.S. Senator from the State of Washington 
  presenting Gil Kelikowske Nominee to be Director of National 
  Drug Control Policy, Exective Office of the President..........   977
Reid, Hon. Harry, a U.S. Senator from the State of Nevada 
  presenting Ronald H. Weich Nominee to be Assistant Attorney 
  General oFfice of Legislative Affairs, Department of Justice...   970

                       STATEMENT OF THE NOMINEES

Hamilton, David, Nominee to be U.S. Circuit Judge for the Seventh 
  Circuit                                                           980
    Questionnaire................................................   997
Kerlikowske, R. Gil, Nominee to be Director of National Drug 
  Control Policy, Exective Office of the President                  985
    Questionnaire................................................  1057
Weich, Ronald H., Nominee to be Assistant Attorney General Office 
  of Legislative Affairs, Department of Justice                     984
    Questionnaire................................................  1076

                         QUESTIONS AND ANSWERS

Responses of David F. Hamilton to questions submitted by Senators 
  Sessions, Hatch, Grassley, Graham, Cornyn, and Coburn..........  1106
Responses of R. Gil Kerlikowske to questions submitted by 
  Senators Specter, Hatch, Grassley, Coburn......................  1133
Responses of Ronald Weich to questions submitted by Senators 
  Specter, Grassley and Coburn...................................  1173

                       SUBMISSIONS FOR THE RECORD

Baca, Leroy D., Sheriff, county of Los Angeles, Montereo Park, 
  California, letter.............................................  1193
Bayh, Hon. Evan, a U.S. Senator from the State of Indiana, 
  prepared statement.............................................  1195
Benatovich, Lana D., President, National Federation for Just 
  Communities of WNY, Buffalo, New York, letter..................  1197
Benczkowski, Brian A., Dennis Burke, Andy Fois, Ann Harrkins, 
  Will Moschella, Robert Raben, and Pat Wald, joint letter.......  1199
Berman, Greg, Director and Aubrey Fox, Center for Court 
  Innovation, New York, New York, letter.........................  1201
Blumstein, Alfred, University Professor and J. Erik Jonsson 
  Professor of Urban Systems and Operations Research, H. John 
  Heinz III School of Public Policy and Management, Carnegie 
  Mellon University, Pittsburge, Pennsylvania, letter............  1202
Bobb, Merrick J., Executive Director, Police Assessment Resource 
  Center, Los Angeles, California, letter........................  1204
Brennan, Bridget G., Special Narcotics Prosecutor, New York, New 
  York, letter...................................................  1206
Brown, Lee P., PhD, Chairman and CEO, Brown Group International 
  Houston, Texas, letter.........................................  1208
Burgess, Tim, Chair Public Safety, Human Services and Education 
  Committee, City Council, City of Seattle, Seattle, Washington, 
  letter.........................................................  1209
Cantwell, Hon. Maria, a U.S. Senator from the State of 
  Washington, prepared statement.................................  1210
Citty, William, Chief of Police, City of Oklahoma City, Police 
  Department, Oklahoma City, Oklahoma, letter....................  1212
Community Anti-Drug Coalitions of America, Arthur T. Dean, Major 
  General and Sue Thau, Public Policy Consultant, Alexandria, 
  Virginia, joint letter.........................................  1213
Council of State Government Justice Center Board of Directors, 
  Pat Colloton, Chair, Committee on Corections and Juvenile 
  Justice, New York New York, letter.............................  1214
Davis, Robert L., Chief of Police, San Jose Police Department, 
  San Jose, California, letter...................................  1215
Flynn, Edward A., Chief of Police, City of Milwaukee, Police 
  Department, Milwaukee, Wisconsin, letter.......................  1216
Fong, Heather J., Chief of Police, Police Department, San 
  Franciso, California, letter...................................  1217
Giovengo, Melinda, PhD, Executive Director, YouthCare, Seattle, 
  Washington, letter.............................................  1218
Gillespie, Douglas C., Sheriff, LAS Vagas Metropolitan Police 
  Department, Las Vagas, Nevada, letter..........................  1220
Hammond, Larry A., Osborn Maledon, Attorneys at Law, Phoenix 
  Arizona, letter................................................  1221
Harris, Jack F., Public Safety Manager, Phoenix Police 
  Department, Phowniz, Arizona, Letter...........................  1223
Hayes, John F., Jr., President, Black Law Enforcement Association 
  of Washington Inc., Seattle, Washington, letter................  1224
Hurtt, Harold L., Chief of Police, City of Houston, Houston 
  Police Department, houston, Texas, letter......................  1226
Isom, Colonel Daniel, Chief of Polics, Metrololitan Police 
  Department, St. Louis, Missourt, letter........................  1227
Inukai, Richard, President, Dick's Country Chrysler Jeep Dodge, 
  Hillsboro, Orgon, letter.......................................  1228
Ivey, Glenn F., State's Attorney, Upper Marlboro, Maryland, 
  letter.........................................................  1229
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, letter..........................................  1230
Kerlikowske, R. Gil, Nominee to be Director of National Drug 
  Control Policy, Exective Office of the President, Washington, 
  DC, statement                                                    1232
Krisberg, Barry, National Council on Crime and Delinquency, 
  Oakland, California, letter....................................  1236
Kunkle, David M., Chief of Police, Dallas Police Department, 
  Dallas, Texas, letter..........................................  1237
Lugar, Hon. Richard, a U.S. Senator from the State of Indiana, 
  statement......................................................  1241
Manger, J. Thomas, Chief of Police, Montgomery County, Rockville, 
  Maryland, letter...............................................  1243
McCaffrey, Barry R., General, USA (Retired), Director, Office of 
  National Drug Control Policy, Washington, DC, letter...........  1244
McGrath, Michael, Chief of Police, Department of Public Safety, 
  Division of Police, Cleveland, Ohio, letter....................  1246
Meese, Edwin, III, March 31, 2009, letter........................  1247
Meisenheimer, Keith, Circuit Court Judge, Co-Chair, Portland Boys 
  and Girls Club, Portland, Oregon, letter.......................  1248
Mieczkowski, Tom, Professor and Chair, Department of Criminology, 
  College of Arts and Science, Universiy of South Florida, Tampa, 
  Florida, letter................................................  1249
Miller, Kermit, Chief of Police, Tucson Police Department, 
  Tucson, Arizona, letter........................................  1250
Monroe, Rodney D., Chief of Police, Charlotte-Mecklenburg Police 
  Department, Charlotte, North Carolina, letter..................  1251
Morgenthau, Robert M., District Attorney, New York, New York, 
  letter.........................................................  1252
Murray, Hon. Patty, a U.S. Senator from the State of Washington, 
  statement......................................................  1254
National Association of Drug Court Professionals, West 
  Huddleston, Chief Executive Officer, Alexandria, Virginia, 
  letter.........................................................  1256
National Association of State Alcohol and Drug Abuse, Robert I.L. 
  Morrison, Interim Executive Director, Washington, DC, letter...  1257
National Black Police Association, Ronald E. Hampton, Executive 
  Director, Washington, DC, letter...............................  1259
National Center for Victims of Crime, Mary Lou Leary, Exective 
  Director, Washington, DC, letter...............................  1262
National Criminal Justice Association, Cabell C. Cropper, 
  Executive Director, Washington, DC, letter.....................  1263
National Fraternal Order of Police, Chuck Canterbury, National 
  President, Washington, DC, letter..............................  1264
National Narcotic Officers' Associations Coaltition, Ronald E. 
  Brooks, President, West Covina, California, letter.............  1265
Neufeld, Peter, Co-Director and Barry Scheck, Co-Director, 
  Innocence Project, New York, New York, letter..................  1267
Nickels, Greg, Mayor of Seattle, Seattle, Washington, letter.....  1268
Parker, Robert, Director, Miami-Dade Police Department, Miami, 
  Florida, letter................................................  1269
Parsons, Charlie J., President & CEO, D.A.R.E. America, Los 
  Angeles, California, letter....................................  1270
Pennington, Richard J., Chief of Police, Atlanta Police 
  Department, Atlanta, Georgia, letter...........................  1271
Porter, Russell M., Director, Intelligence Fusion Center, Des 
  Moines, Iowa, letter...........................................  1272
Police Executive Research Forum, Chuck Wesler, Exective Director, 
  Washington, DC, letter.........................................  1273
Ramsey, Charles H., Police Commissioner, Philadelphia Police 
  Department, Philadelphia, Pennsylvania, letter.................  1274
Reid, Hon. Harry, a U.S. Senator from the State of Nevada, 
  statement......................................................  1275
Republican Members of Congress, former, Bruce Artim, Senate 
  Judiciary Committee, former Chief Counsel and Staff Director, 
  Washington, DC, joint letter...................................  1276
Russell, Robert T, Jr., Buffalo City Court, Presiding Judge, Drug 
  Treatment Court, Mental Health Court and Veterans' Treatment 
  Court, Buffalo, New York, letter...............................  1279
Serpas, Ronal W., Chief of Police, Metropolitan Nashville Police 
  Department, Nashville, Tennessee, letter.......................  1281
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania:
    March 24, 2009, letter.......................................  1282
    March 31, 2009, joint letter.................................  1283
State Associations of Addiction Services, Paul N. Samuels, 
  Director/President, Becky Vaughn, Executive Director, and 
  Gabrielle de la Gueronniere, JD, Director, National Policy 
  Legal Action Center, National Hire Network, Washington, DC, 
  joint letter...................................................  1285
Steer, John R., Senior Partner, Allenbaugh Samini Ghosheh, LLP, 
  Eagan, Minnesota, letter.......................................  1287
Stewart, Robert M., Chief Exective Officer, Stewart Konduros & 
  Associates, LLC, Lexington, South Carolina, letter.............  1288
Streicher, Thomas H., Jr., Police Chief, Cincinnati Police 
  Department, Cincinnati, Ohio, letter...........................  1289
U.S. Conference of Mayors, Tom Cochran, CEO and Executive 
  Director, Washington, DC, letter...............................  1290
Vest, Charles M., President, National Academy of Engineering, 
  Washington, DC, letter.........................................  1291
Weich, Ronald H., Nominee to be Assistant Attorney General Office 
  of Legislative Affairs, Department of Justice, statement         1292
White, Colonel Robert C., Chief of Police, Louisville Metro 
  Police Department, Louisville, Kentucky, letter................  1294
Wiles, Richard D., Sheriff, El Paso County Sheriff's Office, El 
  Paso, Texas, letter............................................  1295
Wilkins, William W., Member, Nexsen Pruet, LLC, Attorneys and 
  Counselors at Law, Greenville, South Carolina, letter..........  1296
Williams, Hubert, President, Police Foundation, Washington, DC, 
  letter.........................................................  1298

                     ALPHABETICAL LIST OF NOMINEES

Breuer, Lanny A., Nominee to be Assistant Attorney General 
  Criminal Division, U.S. Department of Justice..................   555
Hamilton, David, Nominee to be U.S. Circuit Judge for the Seventh 
  Circuit........................................................   980
Johnsen, Dawn E., Nominee to be Assistant Attorney General Office 
  of Legal Counsel, Department of Justice........................   261
Kerlikowske, R. Gil, Nominee to be Director of National Drug 
  Control Policy, Exective office of the President...............   985
Kris, David S., Nominee to be Assistant Attorney General, 
  National Security Division, Department of Justice..............   311
Ogden, David W., Nominee to be Deputy Attorney General U.S. 
  Department of Justice..........................................     7
Varney, Christing A., Nominee to be Assistant Attorney General, 
  Antitrust Division, U.S. Department of Justice.................   618
Weich, Ronald H., Nominee to be Assistant Attorney General Office 
  of Legislative Affairs, Department of Justice..................   984
West, Tony, Nominee to be Assistant Attorney General, Civil 
  Division, U.S. Department of Justice...........................   676


 NOMINATION OF DAVID W. OGDEN, NOMINEE TO BE DEPUTY ATTORNEY GENERAL, 
                       U.S. DEPARTMENT OF JUSTICE

                              ----------                              


                      WEDNESDAY, FEBRUARY 5, 2009

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:37 a.m., room 
SD-226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 
Chairman of the Committee, presiding.
    Present: Senators Leahy, Feingold, Cardin, Whitehouse, 
Wyden, Kaufman, Specter, Hatch, Kyl, and Sessions.

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

    Chairman Leahy. Good morning, everyone. I see my friend 
Senator Warner here. He seems to be living in this Committee 
recently.
    On Tuesday, Eric Holder was sworn in as the 82nd Attorney 
General of the United States. He had strong bipartisan support. 
In fact, he got the highest number of ``aye'' votes of any 
Attorney General for over a decade. In this Committee, it was 
17:2, and I think that was a testament to Mr. Holder's 
character, integrity, and independence. It also shows that it's 
time to restore the Justice Department and restore the American 
people's confidence in Federal law enforcement.
    Today the Committee restores, or continues the work of 
restoring, the Department. President Obama nominated David 
Ogden, a former high-ranking official both at Justice and 
Defense Departments, to be Deputy AG, the number-two position 
at Department of Justice, basically, the one who manages the 
Department and acts as Attorney General in the absence of the 
Attorney General.
    In fact, currently the hold-over Deputy Attorney General, 
acting as Attorney General, who has been in charge between 
Attorney General Mukasey's resignation at the end of President 
Bush's term and Attorney General Holder's confirmation.
    In that regard, let me publicly thank Deputy Attorney 
General Mark Filip, who was appointed by President Bush. He 
came from Chicago, left a lifetime appointment as a Federal 
judge, motivated by public service, knowing that it was just 
going to be a short-term position, but he's done a commendable 
job. He's worked with many of us on both sides of the aisle to 
revise the McNulty memo, and many other important issues. So, I 
commend outgoing Deputy Attorney General Filip.
    But it was another Deputy Attorney General, a different 
one, an earlier one during the Gonzales era who had direct 
supervisory authority over United States Attorneys during the 
scandalous firings for partisan political purposes. That Deputy 
Attorney General resigned following the investigation by this 
Committee.
    The report by the Department of Justice's own internal 
oversight office has confirmed the findings of our 
investigation. Those conclude that both he and former Attorney 
General Gonzales abdicated their responsibility to safeguard 
the integrity and independence of the Department by failing to 
ensure that the removal of U.S. Attorneys was not based on 
improper political considerations.
    I mentioned that because of mistakes of the past show how 
important this position is for the future. Now, Mr. Ogden's 
nomination has received dozens of letters of support. Nearly 
every major law enforcement organization--let me just refer to 
a couple: the National Association of Police Organizations 
wrote that ``David Ogden has the experience and knowledge 
necessary to direct our Nation's law enforcement efforts.''
    Chuck Canterbury, the national president of the Fraternal 
Order of Police, wrote that Mr. Ogden ``possesses the 
leadership and experience that the Justice Department will need 
to meet the challenges which lay before us.''
    The National Sheriffs Association joined the law 
enforcement support for Mr. Ogden. They wrote that his 
``comprehensive background and experience in civil litigation 
complements Attorney General nominee Eric Holder's experience 
in criminal law, thus making him the ideal nominee for Deputy 
Attorney General.''
    Mr. Ogden's nomination has received strong endorsement from 
Republican and Democratic former public officials and high-
ranking veterans at the Department. Larry Thompson, who's a 
former Deputy Attorney General himself, describes Mr. Ogden as 
``a brilliant and thoughtful lawyer who has the complete 
confidence and respect of career attorneys at main Justice. 
David will be a superb Deputy Attorney General.''
    Well, I agree. Mr. Ogden is a lawyer's lawyer. He has broad 
experience in government and private practice. I think he has 
the experience, for example, not at the Department of Justice, 
but at the Department of Defense, that's going to be the key to 
success in the years ahead.
    He was, as Senator Warner knows, Deputy General Counsel at 
Defense. A dozen retired military officers who served as Judge 
Advocates General have endorsed Mr. Ogden's nomination, calling 
him ``a person of wisdom, fairness, and integrity'', ``a public 
servant, vigilant to protect the national security of the 
United States'', and a civilian official who values the 
perspective of uniformed lawyers in matters within their 
particular expertise.
    He is the kind of serious lawyer and experienced government 
servant who understands the special role the Department of 
Justice has to fulfill in our democracy and he has the 
knowledge and ability to help restore it. He is going to be a 
critical asset for the Attorney General. He can help restore 
the best traditions of the Department by ensuring that the 
career professionals at the Department are able to do their 
jobs and enforce the law without fear or favor. So, I commend 
him and his family for the willingness to serve.
    I yield to the distinguished senior Senator, and longest-
serving Senator from the State of Pennsylvania.

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

    Senator Specter. Thank you, Mr. Chairman. The nominee, 
David Ogden, does bring an outstanding resume to this position 
academically: Phi Beta Kappa, University of Pennsylvania, magna 
cum laude; Harvard Law Review; outstanding professional 
credentials. I look forward to an opportunity to discuss the 
responsibilities of the office with the nominee.
    There has been understandably, a large number of 
submissions. We're looking at some eight nominees, and so far 
the academic and professional credentials look very promising. 
That does not mean that this committee has any lesser 
responsibility to find out more about them as they prepare to 
run the Department of Justice.
    We are under very heavy time pressure to complete a great 
deal of work on a schedule which I believe requires more time. 
There are eight nominations pending beyond the Deputy Attorney 
General: the Solicitor General, the Associate Attorney General, 
the Assistant Attorney General, Legal Counseling, the National 
Security Division, Criminal Division, Civil Division, and the 
Antitrust Division, all very important, very complicated jobs.
    Staff has been trying to work out a schedule which can be 
accommodated by a relatively small minority staff. It would be 
my hope that staff could work this out so it would not take up 
the time of the Chairman and the Ranking Member. We're 
proceeding here today with Mr. Ogden on a questionnaire which 
was received on January 23rd, including two and a half boxes of 
writings and supplementary materials on January 30th.
    We have a hearing for the Solicitor General, the dean of 
the Harvard Law School, a very impressive woman, Elena Kagan, 
whom I talked to yesterday at some length. But we didn't get 
her questionnaire until January 26th, including approximately 
2,000 pages of writings. She provided the Committee with audio 
files of 58 of her speeches yesterday, and we're still 
reviewing over 60 hours of speeches. Well, on the face of that 
there simply isn't adequate time to find out what her record 
shows to be in a position to intelligently question her.
    We have a hearing also on the same date, next Tuesday, for 
the nominee for Associate Attorney General, Tom Perelli, whose 
questionnaire was received on January 30th late in the 
afternoon, including approximately 500 pages of materials.
    Now, I won't go on with a long list because we have a big 
hearing here, but I'll put the balance in the record, and an 
analysis of the time that has been taken on preparation of 
similar hearings in the past, which shows a great deal more 
time to prepare.
    [The information appears as a submission for the record.]
    Senator Specter. I've had strenuous concerns raised by my 
colleagues on the Republican side of the aisle. I hope their 
staffs will urge them to come to participate in these hearings 
because Deputy Attorney General is very, very important, as are 
all of these positions. I have reason to believe that some are 
not coming because they are not prepared to participate, which 
is regrettable. But I do hope that this can be worked out on 
the staff level so that it does not take the time of the 
Chairman or myself.
    Thank you, Mr. Chairman.
    Chairman Leahy. Well, thank you. We will try to move as 
expeditiously, of course, as we did during the President Bush 
time, in moving his people. I would assume that we'd want to do 
the same thing for President Obama.
    I'm going to put into the record statements by Senator Mark 
Warner and Senator Jim Webb from Virginia. They're at another 
hearing. As Senator John Warner knows, that happens all the 
time. So their statements in support of the nominee will be 
placed in the record.
    [The prepared statements of Senator Mark Warner and Senator 
Jim Webb appear as a submission for the record.]
    Chairman Leahy. I yield to our distinguished former 
colleague, a man I've always called my Senator when I'm away 
from home, Senator John Warner.

 PRESENTATION OF DAVID W. OGDEN, NOMINEE TO BE DEPUTY ATTORNEY 
 GENERAL, DEPARTMENT OF JUSTICE, BY HON. JOHN WARNER, A FORMER 
            U.S. SENATOR FROM THE STATE OF VIRGINIA

    Senator Warner. Thank you, Mr. Chairman, Senator Specter, 
and Members of the Committee. I am privileged to appear before 
you again on behalf of this distinguished nominee. I appeared 
on his behalf about a decade ago in a Senate confirmation 
proceeding, and I was privileged to be asked to return this 
time for this very important nomination, and to be considered 
by this Committee.
    I wish to commend the Chair, the Ranking Member, and the 
members of the Committee with, really, I think the very 
thorough and expeditious way in which the nomination of the 
Attorney General, Mr. Holder, was handled and voted upon by the 
Senate. In this instance, this is one of the most 
extraordinary, well-qualified individuals that I have ever had 
the privilege to introduce to the U.S. Senate. He is joined 
here today by members of his family; I'll allow the Chair to 
appropriately and timely recognize that. Of course, I shall ask 
that my full statement be placed in the record.
    Chairman Leahy. Without objection.
    [The prepared statement of Senator John Warner appears as a 
submission for the record.]
    Senator Warner. That he oversees the Department. The 
Department has more than $20 billion annual budget and more 
than 100,000 employees nationwide, and his managerial skills--
and he has proven managerial skills--would be brought to bear 
on that.
    But how fortunate America is to have someone as 
knowledgeable and as experience as David Ogden to step up and 
serve our great Nation in this challenging role. David has been 
a practicing lawyer for more than a quarter of a century and he 
devoted more than a decade of that legal career to public 
service, mostly in the senior positions at the Department of 
Justice.
    As the distinguished Ranking Member said, after graduating 
summa cum laude and Phi Beta Kappa from the University of 
Pennsylvania, David attended Harvard Law School, graduating 
from Harvard magna cum laude, and as the editor of the Harvard 
Law Review in 1981.
    Subsequent to law school, David served as a judicial law 
clerk, working for the Honorable Abram Sofer, a U.S. District 
judge on the Southern District of New York. Upon completion of 
this 1-year clerkship, he was selected to serve on the U.S. 
Supreme Court as a law clerk for the Honorable Harry Blackman.
    After completing two clerkships, David entered private 
practice and was eventually promoted to partner at a well-
respect law firm, Jenner & Block. In 1994, he left private 
practice to serve as Deputy Attorney General and legal counsel 
at the U.S. Department of Defense, as was mentioned by our 
distinguished Chairman. During his time at the DOD, David was 
awarded the medal for distinguished public service--it's the 
highest civilian award that can be awarded by the Secretary of 
Defense.
    In 1995, David left the Department of Defense and began his 
service in the U.S. Department of Justice. At the Department, 
David worked in a variety of roles, including Associate Deputy 
Attorney General, Chief of Staff and Legal Counsel to the 
Attorney General, and as Assistant Attorney General for the 
Civil Division.
    Since leaving government service in 2001, David has worked 
as a partner at the distinguished and venerable law firm of 
Wilmer, Cutler, Pickering, Hale & Dorr. At the firm, he is co-
chair of the Regulatory and Government Affairs and Litigation 
Departments.
    Now, Mr. Chairman, I would say without any reservation that 
this very fine individual was deemed qualified by the U.S. 
Senate in previous confirmations, and having had the added 
experience now as an Assistant Attorney General, he is even 
more experienced to serve as the Deputy Attorney General. So, I 
would be hopeful that this Committee will look favorably upon 
this nomination.
    In preparation, Mr. Chairman, if the chair will kindly 
indulge me a moment, I had a long meeting with this nominee, 
even though I had been with him before, because I was concerned 
about his approach to the very important role that the 
Department of Justice plays over national security 
responsibilities of the executive branch: the duty to work with 
the Departments of State, Defense, and the intelligence 
community as a whole to keep our Nation safe and to deter the 
many diverse threats against security, while protecting the 
civil liberties of our citizens.
    A gathering of intelligence relating to these threats is 
essential, and that responsibility has rested for many 
generations on the shoulders of the most dedicated and 
courageous of public servants. If I might say with a deep sense 
of humility, 40 years ago this month I sat before the U.S. 
Senate and was confirmed as Under Secretary of the Navy, and 
from that day to this day I have had constant association with 
the intelligence community, serving on the Intelligence 
Committee with two of our colleagues here on the bench today.
    I am gravely concerned that we've gone through a very 
serious period of passing laws, trying to make certain that the 
rule of law, which is the very fundamental basis for our 
Nation, is upheld not only here in the United States, but in 
the eyes of the world and in compliance with the treaties of 
the world, as we collect intelligence.
    There's been some discussion about actions taken by persons 
in the intelligence field and collection field in years past, 
and I subscribe to the theory that no man, no woman is above 
the law. But I believe in my own experience, having dealt with 
these people for 40 years, they are among the most dedicated 
and courageous of our public servants.
    As we move into the future and look to the past and we are 
being guided by perhaps mistakes that were made in the past, I 
would draw the attention of our distinguished panel here today 
to the debate on the floor on Tuesday of this wee, February 
2nd, at which time a number of Senators addressed this question 
of the past and how to address it in the future.
    Senator Bond, speaking on the floor, said, ``I invite my 
colleagues' attention to the following written assurance given 
by Mr. Eric Holder to Senator Kyl about a week ago concerning 
the investigation of intelligence officials conducting 
intelligence activities in the past.'' Eric Holder replied to 
Senator Kyl as follows: ``Prosecutorial and investigative 
judgments must depend on the facts. No one is above the law. 
But where it is clear that a government agent has acted in 
responsible and good-faith reliance on Justice Department legal 
opinions authoritatively permitting his conduct, I would find 
it difficult to justify commencing a full-blown criminal 
investigation, let alone a prosecution.''
    So I was very satisfied with the nominee's observations 
about this particular part of the responsibilities of the 
Department, and I will leave to him to speak to the Committee 
on it.
    Chairman Leahy. Thank you.
    Senator Warner. I thank you, Mr. Chairman, for the 
privilege to appear before you, a friend of 30 years here in 
this institution.
    Chairman Leahy. Thank you.
    Senator Warner. And my dear friend Senator Specter, and 
other members of the Committee.
    Chairman Leahy. I thank the Senator very much. I'm sorry to 
rush, but because the bill that's on the floor, I anticipate, 
any time, being called back for votes and we don't want to 
interrupt if we can.
    Thank you very much. Your full statement will be placed in 
the record, of course.
    Senator Warner. Good. I have Senator Webb's statement here. 
He was unable to attend. I will hand it to the Clerk.
    Chairman Leahy. Thank you very much.
    Senator Warner. Thank the Chair.
    Chairman Leahy. We're probably going to be making this a 
weekly event with you.
    [Laughter.]
    Senator Warner. No, no.
    Chairman Leahy. Mr. Ogden, would you please step forward?
    Mr. Ogden. Yes, Mr. Chairman.
    Chairman Leahy. Would you raise your right hand and repeat 
after me?
    [Whereupon, the witness was duly sworn.]
    Chairman Leahy. Thank you very much.
    I think we want to change your name plate there.
    Mr. Ogden, I think, as Senator Warner mentioned, you have 
family members here. Would you like to introduce your family, 
so someday that will be in the Ogden archives or records 
showing they were here?
    Mr. Ogden. The very small archive, I'm sure, Senator. Mr. 
Chairman, thank you very much. I would like to do that.
    Chairman Leahy. Please do that.
    Mr. Ogden. This is my wife, Anne Harkavy. Our one-month old 
daughter is not here today. She's home. But she'd be in Anne's 
lap if that were possible.
    Chairman Leahy. Congratulations on the----
    Mr. Ogden. Thank you.
    Chairman Leahy. On the birth of your daughter.
    Mr. Ogden. Thank you, Mr. Chairman.
    This is my sister Connie Graham, my uncle Bill Condrell, my 
sister Cece Ogden. Behind in the second row is my sister 
Jessica Ogden. Over on the other side, my daughter Elaine 
Ogden, my son Jonathan Ogden, and my mom, Elaine Ogden. In the 
row behind, very importantly, I don't want to forget, my lovely 
nieces, Christina and Juliana Graham.
    Chairman Leahy. The Ogden family sort of fills up half the 
room here.
    [Laughter.]
    Mr. Ogden. I apologize for that, Mr. Chairman. It's a good 
thing.
    Chairman Leahy. Please go ahead.

  STATEMENT OF DAVID W. OGDEN, NOMINEE TO BE DEPUTY ATTORNEY 
              GENERAL, U.S. DEPARTMENT OF JUSTICE

    Mr. Ogden. Thank you. Mr. Chairman, Ranking Member Specter, 
and members of the Committee, it is a great honor to be here 
today as the nominee to be the next Deputy Attorney General of 
the United States. I am grateful and humbled that President 
Obama and Attorney General Holder have placed such confidence 
in me.
    I would like to thank the members of the Committee and 
their staffs for showing me every courtesy and providing me 
with the opportunity to meet with many of you. Each of those 
meetings has been instructive and, if I am fortunate enough to 
be confirmed, I will benefit from your guidance, and I hope 
from continued dialog, on the full range of policy issues 
entrusted to the Department and within the responsibility of 
the Committee.
    I want to thank former Senator John Warner for being here 
today, and Senators Jim Webb and Mark Warner for their support. 
My family of Virginians is very fortunate to have had, and to 
continue to benefit from, such fine representatives in this 
body.
    I know you will recognize that I owe a great debt to my 
wife, Anne Harkavy, who is here today, who has agreed that I 
may stand for this important job just one month to the day 
after she gave birth to our beautiful daughter Natalie. Anne 
has been my law partner, and will always remain my partner in 
life. The opportunity for public service presented to me by 
this appointment would impose many burdens on her, and her 
willingness to take them on speaks volumes about her love of 
our country and her husband. Thank you.
    I want to thank my son Jonathan, who is a sophomore at the 
College of William & Mary, and my daughter Elaine, who is a 
high school senior and will soon be attending my alma mater, 
the University of Pennsylvania. I am immeasurably proud that 
they are such fine people, and grateful that they are such good 
friends. And though it is too soon for Natalie to understand 
anything that's going on here, I also thank her for her 
sacrifices, which will be real, and hope she will read these 
words someday.
    I am so glad that my mother, Elaine Ogden, is here today. I 
wish that my dad, Hod Ogden, could be here too. From day one, 
my mom and dad taught me a lot of important things, among them 
to give the best of myself to my family, my community, and my 
country; to be willing to take a personal risk to do the right 
thing and to say ``no'' when no is the right answer.
    Like the other men and women who in recent memory have come 
before you to be considered for this position, the position of 
Deputy Attorney General, I have a special regard for the 
Department of Justice. I know it to be an essential bulwark of 
our democracy and our freedom.
    I am the proud son of a career Federal civil servant, so it 
did not surprise me during my service in the Department to 
witness the great dedication and expertise of its career 
personnel. But I took something away when I left the Department 
that I did not take in with me: The realization that the 
greatness of the institution is its dedicated career personnel, 
particularly those senior attorneys who have devoted their 
professional lives to the Department's legal missions, and 
those law enforcement and national security professionals who 
put their personal safety at risk every day and night to defend 
our safety and our rights.
    Those career professionals are a precious national resource 
who carry forward the Department's great traditions of 
independence, nonpartisanship, vigilance, restraint, fairness, 
and service and fealty to the law. With proper support, they 
will continue to transmit those transitions across generations 
and administrations.
    I knew going in that the job of the Department's non-career 
leadership, including the attorney and the deputy, is to 
provide strong management and clear direction about the 
Department's goals and to ensure good communication up and down 
and across the many components that comprise the Department, 
and with sister agencies.
    I hope I learn something about how to do those things, but 
it is the Department's career personnel who protect the public 
safety, the national security, the economy, the environment, 
and the public FISC, safeguard our civil and constitutional 
rights, operate our Federal prisons, and as important as any 
mission in any agency, ensure that our Federal Government 
itself operates consistently with its own laws.
    So while serving in the Department's leadership I came to 
understand that leadership's real job in everything it does is 
to help the Department's career professionals do the 
Department's vital work.
    I also came to understand that the Department's leadership, 
including the Attorney General and Deputy, have another 
critical duty: The duty to ensure that the Department's career 
professionals are able to pass along those living, nonpartisan 
traditions to the next group that will at some point take their 
places, and that the leadership must reinforce those traditions 
with every official act and statement.
    It is the chance once again to help the Department's career 
professionals do those things that brings me here today. I 
recognize that the challenges facing the Department may be as 
great as they ever have been across the entire range of the 
Department's responsibilities: National security, law 
enforcement, civil rights, managing our prisons, and the rest 
of those important responsibilities, but I am confident that 
under Attorney General Holder's leadership, and with your 
assistance and support, the Department of Justice will meet 
these challenges. If confirmed as Deputy Attorney General, I 
will do everything I can to help.
    Thank you again for the opportunity to appear before you 
today. I know that there is great expertise here on both sides 
of the aisle. If confirmed, I hope to be able to call on you 
for guidance and will do my very best to ensure that the 
Department works closely with you.
    I would ask that my full statement be accepted for the 
record, and I look forward to your questions.
    Chairman Leahy. Thank you, Mr. Ogden. It will be part of 
the record.
    [The prepared statement of Mr. Ogden appears as a 
submission for the record.]
    Chairman Leahy. One of the most egregious examples we found 
during the investigation this Committee held into the Bush 
administration's firing of U.S. Attorneys for political reasons 
was the replacement of Todd Graves as U.S. Attorney from 
Missouri by Brad Schlossman. He was a Justice Department 
official who for years was engaged in illegal partisan hiring 
practices at the Department.
    Now, once he was installed by former U.S. Attorney General 
Alberto Gonzales as interim U.S. Attorney, Mr. Schlossman 
brought four indictments on the eve of a closely contested mid-
term election in Missouri. Now, in the red book, the 
longstanding policies of the Justice Department has--the guide 
book talks about Federal prosecution of election offenses and 
it provides, in investigating election fraud matters, that 
Justice Department ``must refrain from any conduct which has 
the possibility of affecting the election itself. Thus, most, 
if not all, investigations of alleged election crimes must 
await the end of the election to which the allegations 
relate.'' Now that's something--a rule followed by both 
Democratic and Republican administrations previously.
    But the Gonzales Justice Department turned this on its 
head. They put out there changed policy from the red book and a 
green book to allow last-minute prosecutorial actions that 
would influence the outcomes of elections. Now, without going 
back through all the investigation we had of that, and the 
Inspector General's report which is rather damning, let me ask 
you this looking forward: Will you reassure us that under your 
leadership these guidelines are going to be thoroughly 
reviewed, and if changes are needed, that they'll be changed 
appropriately?
    Mr. Ogden. Yes, Mr. Chairman. I did have, in my prior 
service, familiarity with the policy that the Department had 
followed for many years, as embodied in the red book, as you 
describe. I think the importance that the Department, in its 
law enforcement function, not be utilized in any way that 
actually interferes with an ongoing election or has the 
appearance of doing that. It's extremely important to avoid any 
possibility of that type of interference. I think the policy 
was a good one.
    I gather that the policy has been changed. I know there 
were some apparent deviations from the policy. We will look 
very closely at that to make sure that the right policy is in 
place and that there's no interference in ongoing elections. 
That's not to say that violations of law, in connection with 
elections, are not important. They're critically important. The 
traditional practice has been to deal with them after the 
election so as to avoid any interference with the actual 
election itself. I think that policy generally worked well.
    Chairman Leahy. Thank you.
    The mortgage crisis and the financial meltdown have 
contributed, as we all know, to the economic recession which 
began last year. I think we need more enforcement against 
financial frauds. I'm glad to see Attorney General Holder 
mention this on his first day in office. We have to find out 
those, and hold accountable, those who destabilize our economy 
and defrauded homeowners and investors. Now, the FBI and the 
U.S. Attorney's Offices in recent years had to divert resources 
from criminal law priorities, including fraud and public 
corruption, into counterterrorism. The number of cases 
prosecuted has declined; in some places it's been lack of 
staffing.
    Now, I'm working on legislation with Senator Grassley of 
this Committee to increase resources for investigation and 
prosecution of mortgage fraud and financial fraud. Can you 
devote the needed resources to aggressively target mortgage and 
financial fraud?
    Mr. Ogden. Yes. Mr. Chairman, it's imperative that the 
resources be available to address those issues. My 
understanding is that the Department has had to move a 
significant amount of resources into the national security and 
counterterrorism area, and that was understandable and 
necessary. Obviously that priority has to be at the very top of 
the list. But the issues of financial fraud, in the mortgage 
area and other areas--it's imperative that we address it with 
sufficient resources. If I am confirmed, we certainly will do 
that.
    Chairman Leahy. Thank you. You served as Deputy General 
Counsel, as we mentioned before, for the Department of Defense, 
which got you involved in a great number of national security 
issues. These national security issues also are looked at by 
the Department of Justice. You must have gained some insights 
when you worked at DOD that will help in the management of the 
Justice Department's National Security Division. Is that 
correct?
    Mr. Ogden. I'd like to think so, Mr. Chairman, yes.
    Chairman Leahy. Good.
    Mr. Ogden. I guess I would--if I were going to identify 
sort of three principle things I took away from that experience 
and my succeeding related experience at the Justice Department, 
is, first, the enormous effort that's required across agencies, 
across resources in a coordinated way to defend our Nation's 
security in a dangerous world. Obviously, our appreciation of 
the dangers became all the greater, after I left that service, 
on September 11th, 2001, and the succeeding events. But even 
then, it's clear that it requires an enormous coordinated 
effort, a sustained effort.
    The second thing I would say, is it became very clear to me 
that turf battles, any sort of interference that can occur 
between agencies, is the most detrimental possible kind of 
thing. It's absolutely essential that the leadership of each of 
the agencies that are involved in this, which include Defense, 
which include the Justice Department, the State Department, 
Homeland Security, the intelligence agencies, recognize each 
other's expertise and equities and work together constructively 
in a seamless way. The last thing, I mentioned in my opening 
remarks, the extraordinary career professionals at the Justice 
Department who I had the privilege of serving with.
    But there's another absolutely marvelous career force that 
I got to know very well when I was at the Defense Department, 
which is our uniformed military, which bring extraordinary 
expertise, not just in----
    Chairman Leahy. And you received a lot of compliments from 
them.
    Just for my remaining time----
    Mr. Ogden. I'm sorry.
    Chairman Leahy. No, that's OK. In my remaining time I'd 
just put into one area that has been raised by a number of us 
here. You supervised the 1993 U.S. Attorneys in the Criminal 
Division, FBI, and so on. Your background has been in civil 
litigation. Do you feel, there, that you can handle these 
criminal justice issues effectively?
    Mr. Ogden. Senator--Mr. Chairman, I do feel that I can. I 
have done a lot of work in the civil area. But when I was at 
the Justice Department, I managed significant criminal policy 
initiatives. I was in the Deputy's Office and worked on 
significant prosecutions. In the Attorney General's Office, I 
met with, on a regular basis, the law enforcement components 
with the Attorney General and helped manage them.
    In private practice I've managed combined matters, which 
involve civil enforcement and criminal enforcement, working in 
the antitrust area, for example, in the False Claims Act area, 
as another example, where typically the matters require 
management on the criminal and civil side.
    So I do feel that I'm qualified to manage the criminal side 
of the Department, in conjunction, of course, with our very 
experienced Attorney General and with a staff which will 
include very experienced prosecutors in the Deputy's Office, if 
I am--if I were to be confirmed.
    Chairman Leahy. Well, thank you. I have to go to another 
Committee meeting which is taking place right now. I'm going to 
turn the gavel over to Senator Whitehouse, himself a former 
prosecutor. But, first, I will yield to one of the most 
experienced former prosecutors the Senate has ever had, Senator 
Specter.
    Senator Specter. Thank you, Mr. Chairman.
    There's a very limited amount of time, so I'd appreciate it 
if you'd make your answers as brief and responsive as possible.
    Mr. Ogden. I'll do my best.
    Senator Specter. This is a very, very busy day. We're on 
the stimulus package, and in a few minutes a group of Senators, 
including myself, will be meeting to try to provide major 
modification to the pending bill, so that I'll have to excuse 
myself then, too.
    I would again renew my call--I see only two of my 
colleagues here on the Republican side--that my colleagues come 
because of the importance of this nomination.
    I provided you with a letter dated January 28th, setting 
forth the oversight authority of the Congress, and ask that it 
be made a part of the record.
    [The letter appears as a submission for the record.]
    Senator Specter. I'd ask you at this time if you agree with 
the conclusions by the Congressional Research Service that the 
Department of Justice is obliged to submit to congressional 
oversight, regardless of whether litigation is pending. It 
involves both civil and criminal matters. We're entitled to be 
provided with documents respecting open or closed cases, 
including prosecutorial memoranda, investigative reports, and 
the other items specified in that letter.
    Mr. Ogden. Senator Specter, I appreciate the question. I 
think the subject of oversight is extremely important, and I 
know you've been a leader throughout your service in making 
that----
    Senator Specter. That's an interesting introduction. If 
you'd get to the answer, I'd appreciate it.
    Mr. Ogden. My answer, Senator, is that I do think that the 
oversight authority extends to all of the activities of the 
Department. It's also the case that there are substantial 
equities on the Department's side in--in--with respect to 
preserving the discretion and the--and the--and the openness 
of--of dialog on pending matters.
    Senator Specter. Mr. Ogden, do you agree with what I just 
cited as to Congressional Research's conclusions?
    Mr. Ogden. I think, as the Attorney General said, it may 
go--it may leave out part of the equation, which is the 
importance of working together as a matter of accommodation on 
these matters, to make sure that the Senate's important 
interest in knowing what's going on is fully met.
    Senator Specter. I'm going to--I'm going to--I'm going to 
have to move on. I consider that a non-answer, candidly. If you 
could give a more direct answer, I'd appreciate it.
    Do you think, as a matter of public policy, that the 
fairness doctrine should be reinstated?
    Mr. Ogden. Senator, I don't--I believe that judgment would 
be largely one made by the Federal Communications Commission. I 
don't have a particular----
    Senator Specter. I'm asking you for your opinion.
    Mr. Ogden. I don't have a--I don't have an opinion, 
Senator.
    Senator Specter. Then let me move on to another issue.
    Mr. Ogden. Okay.
    Senator Specter. I discussed this with you in our informal 
meeting. In the Sun Diamond Growers case, the Supreme Court 
unanimously said that in order to have a violation on the gift, 
there must be ``a link between the thing of value conferred 
upon a public official and a specific official act for or 
because of which it was given.'' Do you agree with that 
conclusion?
    Mr. Ogden. Well, I know that that's the law of the land. 
That's the Supreme Court's view. I think that it's important 
that there be a corrupt purpose with respect to the enforcement 
of that law. I would certainly follow the Supreme Court's 
guidance.
    Senator Specter. Well, of course you'll follow the Supreme 
Court's guidance. But my question to you goes as to your 
judgment as to what is an appropriate balance. I think you have 
answered that one, looking for a corrupt motive as opposed to 
just an official position.
    Mr. Ogden. I agree. That's entirely my view.
    Senator Specter. I believe in a woman's right to choose on 
the issue of choice, but I do believe that there has been quite 
a bit of scientific material on potential adverse effects after 
an abortion, although that's within the purview of the right to 
choose, for a woman to balance that.
    I was a little surprised to see the scope of your 
contention in your brief filed in Mukasey v. Planned 
Parenthood, where you say this: ``The conclusions from the most 
rigorous scientific studies are consistent for the overwhelming 
majority of women who undergo abortion: There are no long-term 
negative effects. The few women who do experience negative 
psychological responses after abortion appear to be those with 
preexisting emotional problems. It is grossly misleading to 
tell a woman that abortion imposes possibly detrimental 
psychological effects when the risks are negligible in most 
cases.''
    Surprise me a little. What is the basis for the asserted 
``conclusions from the most rigorous scientific studies'' to 
the quotations I just cited?
    Mr. Ogden. That was a brief, Senator, that we submitted on 
behalf of the American Psychological Association in an amicus 
brief in which the purpose was to attempt to present the 
empirical evidence. We typically would have worked with experts 
in the--psychologists, and typically would cite the names and 
identities of those folks at the beginning of the brief, and 
would have worked with them to put together the information 
that would, we hope, be useful to the court. Those positions 
were the positions at the time--I believe it was in the early 
1990s--of the American Psychological Association and of the 
scientists who participated, and we would typically----
    Senator Specter. Are you making a distinction between that 
period of time and what might be the conclusions now?
    Mr. Ogden. It's certainly possible. The brief presented the 
evidence, and empirical evidence that existed at that time, and 
I don't know what the evidence would say today. It may be that 
studies continue. But the purpose of the brief was to present 
the views of----
    Senator Specter. I understand----
    Mr. Ogden [continued]. Of those scientists.
    Senator Specter. I understand the purpose of the brief. I'm 
just trying to get the basis for such a broad assertion, that 
the conclusions from the most scientific--rigorous scientific 
studies, et cetera, so minimizing----
    Mr. Ogden [continued]. Well, Senator, I'm not a 
psychologist.
    Senator Specter. I again repeat: A woman has a right to 
choose. But it seems to me that in that context it's a pretty 
extreme statement.
    Let me take up, with the red light just now going on, one 
final subject. You submitted a brief in the case of the 
American Library Association v. United States, where we had the 
issue of the Children's Internet Protection Act, which required 
public libraries to shelter minors from obscenity, pornography. 
You raised the issue in this context, objecting to the 
congressional insistence that public libraries affirmatively 
censor constitutionally protected material.
    Well, I don't think Congress was seeking to affirmatively 
censor constitutionally protected material. What Congress was 
trying to do was to have a limitation on minors, only minors, 
as to material which is not constitutionally protected. 
Congress cannot inhibit the disclosure of constitutionally 
protected materials, we can only limit what is not 
constitutionally protected. So that is a judicial 
determination.
    We might be wrong. We use our best judgment as to what is 
constitutionally protected. I believe there ought to be very, 
very wide latitude on the speech issue and on the reading 
issue. When I used to have a law enforcement responsibility, I 
took a very broad view of this. But what is your view on the 
propriety of Congress seeking to define obscenity and 
pornography, which we know what the legal definition is, and 
saying, at least as to minors, you can't show it to them if 
you're getting Federal funds in a library?
    Mr. Ogden. Well, I think in--I agree. I think, and would 
associate myself with your remarks entirely on--on that, 
Senator. I think as a--as a--as a preliminary matter, of 
course, protected materials--constitutionally protected 
materials, as to adults, need to be respected by the law. But 
Congress does have broad power to protect minors from material 
that is obscene as to them. The court has recognized that. I 
think that power is entirely appropriate.
    Senator Specter. Senator Whitehouse.
    Senator Whitehouse. Mr. Chairman, I will yield my time, 
since I'm going to be conducting the hearing here through to 
the bitter end, to the distinguished Senator from Wisconsin.
    Senator Feingold. Thank you, Mr. Chairman.
    Mr. Ogden, welcome. I really appreciate our meeting last 
week. You have a very big job ahead of you. I'm grateful to you 
and your family, for your willingness to take this on. From 
what I know of your record, you are obviously eminently 
qualified for this job, having worked not only at the 
Department in the Clinton administration, but also in the 
Department of Defense.
    Before I get into my questions, is there anything else you 
wanted to add about the brief with the American Psychiatric 
Association?
    Mr. Ogden. Well, I appreciate the opportunity. I guess the 
only point I would say about the brief that we did there is 
that there, as with the Library Association brief that Senator 
Specter referenced, I was representing a client as a lawyer in 
private practice. As the Chief Justice said when he was before 
this Committee, a lawyer in private practice takes his--does 
not sit in judgment on his clients.
    His job is to present their views as--as--as persuasively 
and appropriately as possible. We did that with the scientific 
evidence in the American Psychological Association brief. That 
wasn't my view, that was the view of the association. Similarly 
with the librarians. They have a strong view about the need to 
be free from censorship, and they objected to that law. The 
Supreme Court ruled otherwise. Of course, as counsel for the 
United States my job will be different. It will be to 
represent, as aggressively as possible, the position of the 
U.S. And that's what I've done. I have a record of doing that.
    Senator Feingold. Thank you.
    When Attorney General Holder was here, I talked with him 
about the need to look very closely at what's happened at the 
Department over the last 8 years and try to make sure that 
people who are engaged in inappropriate and even illegal action 
don't, in effect, have the last laugh because of what they've 
left behind.
    He answered that one of the things he intends to do is what 
he called ``undertaking a damage assessment'' to understand how 
the Department has been harmed by the things that the Inspector 
General reports over the past few years have uncovered.
    I imagine that a lot of the responsibility for conducting 
this assessment and making recommendations on what to do will 
fall with you. You worked on the transition, so perhaps you 
have some sense already on how that assessment should be done. 
Can you give us a little idea what your plans are on that?
    Mr. Ogden. Well, thank you, Senator. I do think it's 
extremely important for us to recognize that there have been a 
number of things that have happened in recent times which have 
caused concern about the Department. I think we need, as a 
primary matter, to restore confidence.
    I think Attorney General Mukasey and Deputy Attorney 
General Filip have done an admirable job to begin that process. 
The one thing I learned in the transition, the first thing I 
learned, was how seriously they take these issues and how much 
they have taken on themselves in the last--the short time 
they've had to begin to address it. I think we need to continue 
that work. I think we need to meet with the senior career 
people. We need to meet with the Inspector General to try to 
understand where the Department is.
    It will be imperative that we take every step to ensure 
that inappropriate influence can't come from the White House. 
We can't get inappropriate political impact. We'll need to 
assess the damage, if any, that's been done to the career ranks 
I talked about, make sure that we--we have the--the right 
decisions and the right practices being made with respect to 
hiring, make sure that prosecutorial decisions are insulated 
from--from improper influence. So it will be a matter of 
talking with the people who've looked at these things, who have 
experienced them, and then responding appropriately.
    Senator Feingold. Thank you.
    Another issue I discussed with the Attorney General at his 
hearing was the Federal death penalty. I was pleased that he 
agreed that the Department should make public data on the 
administration of the Federal death penalty, information that 
we haven't really had since Attorney General Reno issued her 
comprehensive report in the year 2000.
    Now, I've heard that some people have raised concerns about 
your attitude about the death penalty, and they even suggested 
that your representation of some death row inmates should be 
held against you. Now, that work is essential and among the 
most challenging and important work that a lawyer can 
undertake, in my opinion. So, I think you're to be commended 
for this.
    But let me just ask you point blank: As Deputy Attorney 
General would you let any personal views you have about the 
death penalty affect your willingness to enforce the law?
    Mr. Ogden. I would not, Senator.
    Senator Feingold. On the other hand, if a U.S. Attorney 
wanted to speak directly with the Attorney General because he 
or she felt that the decision to seek the death penalty in a 
particular case was a mistake, would you prevent that 
conversation from taking place as one of your predecessors did? 
How would you handle that kind of request?
    Mr. Ogden. Well, I think it's--it is imperative that we get 
the full experience of the U.S. Attorney, and for that matter 
the line attorney who's handled the case. The critical thing I 
think for all important decisions, and indeed, probably all 
decisions, is that we get all the input from the experienced 
people who have the direct responsibility for the matter and 
make sure we fully understand their views before any decisions 
is made based on the matters within their responsibility. So, 
we would certainly encourage those kinds of communications and 
make sure that there's a full flow of that expertise.
    Senator Feingold. I thank you for that answer. I am 
impressed by the support your nomination has received from 
lawyers who actually served in the last administration, 
including Larry Thompson, Rachel Brand, Peter Keisler, Daniel 
Price, Stuart Gerson, Daniel Evan, Don Bellenger, and Reginald 
Brown. I was struck particularly by how many of their 
testimonials remark on your willingness to listen to opposing 
viewpoints.
    I'd like to hear from you whether you think that quality is 
important to being a successful Deputy Attorney General, and 
why.
    Mr. Ogden. I think it's critical to being successful in 
almost any walk of life, but I think more than anything in a 
leadership position like the position of the Deputy Attorney 
General. It is absolutely crucial that we make the best 
possible decision, that it take into account the viewpoints of 
all people who have relevant views to afford.
    Typically, the problems that reach the Deputy Attorney 
General are the ones where there are differences of opinion, 
and I think it's critically important that we take full account 
of the people who have all varying views in order to try to 
reach the best decision. So I think it is critically important 
to have an open mind, to consider views that otherwise might 
not be your approach, and to factor that into your thinking. 
I'm very proud to have the support of the people that you speak 
of. They're people I've worked closely with in my career, and 
it is something that is extremely important to me, to have 
their respect and their support.
    Senator Feingold. Mr. Ogden, I greatly look forward to 
working with you.
    Thank you, Mr. Chairman.
    Senator Whitehouse. Next, is the very distinguished Senator 
from Utah, a former Chairman of this Committee, and the person 
whose keen interest in the Department of Justice actually 
provoked the first letter that created the firewall that has 
been such a source of attention, the firewall between the White 
House and the Department of Justice.
    Senator Hatch.
    Senator Hatch. Well, thank you. Thank you, Mr. Chairman.
    Mr. Ogden, welcome to the Committee. I have great respect 
for your academic record. I'm one of those Senators who wants 
to be supportive of any President as he or she builds his or 
her executive branch team, but I do have some real issues and 
concerns that I'd like to raise with you.
    One area that really concerns me is whether you will be 
committed to enforcing laws that you have argued for so many 
years to be unconstitutional. Let me be clear what I'm looking 
for here. I want to know your own views, if you will, the views 
you will be taking into the leadership of our Justice 
Department. If you personally disagree with the views and 
approaches that you have advocated in courts so consistently 
for so many years, I think now would be a good time to say so.
    For example, you argued in 1989 that the law requiring 
producers of sexually explicit material to keep records about 
the identity and age of performers was unconstitutional. I was 
one of the authors of that bill. A revised version of that law 
is not only still on the books today, but a few years ago 
Congress extended its reach as part of the Adam Walsh Act. I 
had a lot to do with that.
    Now, how can we believe that the Justice Department will 
properly enforce this law, and if necessary defend its 
constitutionality, when you have said for 20 years that it was 
unconstitutional?
    Mr. Ogden. Well, Senator, first of all, I certainly agree, 
and the courts have made clear, that the Congress has the power 
and the government has the power to require that those records 
be kept. That law ultimately has been upheld. It was initially 
struck down. I think there were problems that the courts 
identified, and then I think Congress corrected many of those 
problems.
    I believe it was struck down in my initial--in the lawsuit 
that I brought on behalf of media organizations that were 
concerned about the way in which it was done--not the fact, but 
the way. The court agreed that it could be--that it should be 
fixed. The Congress fixed it. I think that the law is 
constitutional as it stands today.
    Senator Hatch. Thank you.
    Yesterday I received an article about your nomination that 
appeared on X-Biz, which is the news agency for the pornography 
industry. It states, ``For the adult entertainment industry, 
the pick could constitute a strong one, considering Ogden's 
record in representing companies over First Amendment rights 
and obscenity cases.''
    Now, the article also quotes the executive director of the 
Free Speech Coalition, which is the porn industry's legal team, 
hailing your nomination and saying that it will be 
``refreshing.'' Now, it appears that the porn industry does not 
believe that your own views differ from the views you expressed 
on their behalf over the years.
    Now, Mr. Ogden, let me ask you about your brief for the 
ACLU and others in the Knox v. United States case. After the 
first Bush Justice Department had obtained a conviction of 
Stephen Knox for possessing child pornography, the new Clinton 
Justice Department reversed course and asked that his 
conviction be reversed. They did so based on their new 
interpretation of the child pornography statute that narrowed 
its application and weakened its enforcement.
    Now, the U.S. Court of Appeals rejected that new position 
not once, but twice. This body, the U.S. Senate, unanimously 
rejected this reinterpretation of the child porn statute not 
once, but twice. Even President Clinton wrote Attorney General 
Reno saying he agreed with the Senate about the law's proper 
scope.
    Yet you filed a brief for the ACLU and others on the side 
of Mr. Knox for the position that all three branches of the 
government--Congress, the courts, and the President--rejected. 
Seven of us on this Committee today were in the Senate in 1993 
and voted to reject the position you embraced in that 
particular case. A few other members of this Committee were in 
the House at the same time and likewise voted to reject the 
position that you advanced or embraced.
    In your brief you said that the position that we endorsed, 
Democrats and Republicans alike, about the scope of this child 
porn statute would be a ``step backward,'' all the way back to 
the 1960s.
    Now, is that the kind of approach the Justice Department 
will take toward enforcing the child pornography and anti-
obscenity laws in the new administration? Are you going to take 
it upon yourself to give the laws a new twist to try to weaken 
their enforcement from what Congress intended to make--from 
what Congress really intended to make it harder to prosecute 
those who contribute to the exploitation of women and children 
by trafficking in obscenity and child pornography? So I need to 
have your answers on that.
    Mr. Ogden. Well, Senator, I appreciate the question and the 
opportunity to address the Knox brief and the related issue.
    The first thing that I would just like to make very clear 
is that I believe that the child pornography laws, the laws 
against child pornography, are extremely important laws. I 
think that child pornography is abhorrent. I think the effort 
to exploit--the exploitation and the harming of children is--is 
abhorrent and it deserves the full sanction of the law, and--
and--and--that is--that is my strong view.
    The--I did not agree, even at the time it was filed, when I 
was not in the government, with the Justice Department's brief 
that you refer to. It took a very extreme view, I agree, of--of 
the law. I understand why the Senate and the House rejected it.
    The brief that I submitted on behalf of the ACLU, the 
American Library Association, and the American Booksellers 
Association on behalf of librarians and booksellers made a 
different point. It made a point that I understand the Senate, 
and ultimately--that this body disagrees with and one that the 
court disagreed with, but it was a point that was important to 
them. They wanted just to know, have a clear line as between 
what was illegal and what was legal. The court decided not to 
accept that view, but it wasn't the view--the extreme view--
that I myself rejected, that the Justice Department brief took.
    I fully intend to--to--if I am fortunate enough to be 
confirmed, aggressively enforce these laws. I have a record of 
doing so as the Assistant Attorney General for the Civil 
Division. I defended, as aggressively as I could, the Child 
Online Protection Act. I defended the Child Pornography Act at 
the time, and did so with full support.
    Senator Hatch. I appreciate that.
    I'll be a little bit over on this question. In your brief 
in Roper v. Simmons--thank you, Mr. Chairman. In your brief in 
Roper, you said that 16- or 17-year-olds are not mature enough 
to be held fully accountable for their decision to kill 
someone. But in your brief in Hardigan v. Sabarez, you said 
that even a 14-year-old girl is mature enough to weigh the pros 
and cons, risks and benefits, and can make the decision to have 
an abortion by herself without even notifying her parents.
    Now, in each brief you said that the social science 
research proved your point. Now, is social science that 
unreliable that it produces such contradictions? How can you 
advance the two separate positions? Now, I understand that as 
an attorney you have an obligation to try and do the best you 
can for your client. But still, it seems to me they're very 
inconsistent positions.
    Mr. Ogden. Senator, I appreciate the question and I also 
appreciate your recognition that I was acting in those cases as 
a lawyer for different clients. In the--in the--in the Casey 
case, or Hardigan case, I was representing organized 
psychology, the American Psychological Association, and doing 
my best to present, with--in conjunction with the experts, the 
psychologists, the view of organized psychology on that issue.
    In the--in the later case, much later case about, I 
believe, 14, 15 years later, I was representing Mr. Simmons, a 
person who had committed a terrible, heinous crime as a minor. 
The question was whether the death penalty could be imposed.
    I think the positions--I understand the tension you 
identify. I think the positions actually can be reconciled in 
this case. In the--in the death penalty case, nobody was 
arguing--we didn't argue--that Mr. Simmons should not be fully 
accountable for his crime. He could get life in prison, he 
could be criminally convicted. Nobody was suggesting that he--
that he was not responsible for that decision.
    The question was whether, as a society, we are prepared to 
impose the ultimate penalty of death on somebody who was a 
minor when they committed the crime. In the other case, the 
question was, again, whether a mature minor could make a 
decision that could be respected by the courts. The view of the 
psychologist was that many of them can, and that was the point 
that we made. So I understand the tension that you identify. It 
was for different clients, and I think the issues were slightly 
different.
    Senator Hatch. Mr. Chairman, I may not be able to return. 
Can I just ask one more?
    Senator Whitehouse. Senator Wyden.
    Senator Hatch. Do you have any objection, Senator Wyden? 
Could I ask one more question?
    Senator Wyden. Absolutely.
    Senator Hatch. I am going to try to return, but I may not 
be able to.
    In your brief for the ACLU and the Knox v. United States 
case about child pornography--as you can see, I'm one of the 
authors of these bills so I take great interest in this. I take 
great interest in the Justice Department and this position that 
you're about to undertake. But in that case, Knox v. United 
States, you said judges should stick to the specific objective 
language of a statute and should not use their own subjective 
judgments or evaluations.
    Yet, in briefs you've filed and an article you've written, 
you argue just the opposite about the Constitution. You urge 
the Supreme Court to reconsider social context, to reevaluate 
the Constitution based upon the latest social science research, 
to decide cases based on perceptions of the real world and a 
judge's compassion for vulnerable groups.
    Now, I guess what I'm asking is, which is it?
    Mr. Ogden. Well, Senator, it is, No. 1, that the language 
of a statute or the Constitution has to be the starting point. 
It's critically important. That's where the Congress and where 
the founders put their emphasis and attempted to create law. So 
it is, affirmatively, the first.
    I think there is an important role for social science 
evidence, and indeed, evidence, in helping apply the law, and 
in particular in constitutional interpretation, which is what 
some of the remarks I think you referenced were directed to. It 
is very--frequently very important in deciding whether a 
constitutional norm established by the language has been 
satisfied or violated, and specifically whether there is a 
sufficient justification, whether in fact the critical 
objectives that Congress may be seeking to achieve are actually 
achieved by a statute. That's a question judges have to decide 
often in deciding whether a bill, a law that restricts rights 
in certain ways will stand.
    So what I've tried to say, and I've always attempted to be 
clear about this, although in a long career sometimes you can 
be a little fuzzy in what you say from time to time, and I 
recognize I may have been.
    Senator Hatch. Really?
    Mr. Ogden. Well, I certainly am capable of it.
    Senator Hatch. We up here are very capable, too.
    Mr. Ogden. I appreciate that, Senator. But what I've 
attempted to say, and what I firmly and strongly believe, and 
what I think I said to Senator Sessions once long ago when we 
had a discussion about this, is that I believe firmly, 
constitutional principles are fixed. I do think that courts 
need to look to the realities of evidence in order to decide 
how they apply in particular cases, and I hope that that's--I 
hope that my views on that are clear.
    Senator Whitehouse. Senator Wyden, thank you for 
accommodating our distinguished colleague with his extra time. 
You are recognized.
    Senator Wyden. Thank you, Mr. Chairman.
    Welcome, Mr. Ogden. Along with Senator Whitehouse and 
Senator Hatch, I also serve on the Intelligence Committee, so 
we very often get into the area where intelligence policy and 
judicial policy intersect.
    I want to ask you some questions specifically with respect 
to interrogation. The issue with respect to interrogation, I 
think for most Americans--and it is extraordinarily important 
to me--comes down to how you handle the human ticking time 
bomb, the person who may have that information, that securing 
it may mean literally saving thousands and thousands of 
American lives.
    I have been able to get the FBI on record saying that with 
their approaches it is possible to secure the information 
through interrogation of these human ticking time bombs without 
torture. Are you familiar with that, and do you largely share 
the views that interrogation techniques that are used by the 
FBI, used by the law enforcement community allows us to deal 
with these kinds of individuals who clearly represent a great 
threat to our country, but we can protect our Nation without 
resorting to torture?
    Mr. Ogden. Senator Wyden, I am familiar with that--with 
that view of the FBI. I also think that view is embodied in the 
Army Field Manual. Based on what I know at the present time, I 
believe it to be true. Obviously I've not been briefed in some 
time in a classified setting about issues like this.
    Obviously I intend, if I am fortunate enough to be 
confirmed, to learn everything I can about the most effective 
ways of addressing that urgent problem: The national security, 
protecting Americans from terrorism, dealing with these urgent 
crises. Nothing could be more important and nothing could be 
more important than to keep an open mind about--about evidence 
and facts. But I certainly--that's my understanding, and it's 
my understanding that that's the view of others who have 
studied this.
    Senator Wyden. The second area I want to ask you is related 
to that, and I appreciate your answer there. I'm sure you're 
familiar with the Bybee amendment. This was the Department of 
Justice legal memo that argued that inflicting physical pain, 
short of organ failure, didn't constitute torture. If someone 
had brought you that opinion, how would you have reacted?
    Mr. Ogden. Well, I think I would have reacted with great 
surprise. I do think the opinion and its interpretation of 
Federal statutes really is very difficult to square with the 
language there, and I think it also was difficult to square 
with--with basic values. So certainly there would have been big 
questions. There would have been big push-back. I think that--
if I--certainly if I'd been in the position of the Deputy 
Attorney General and I'd had an opportunity to see it, I would 
have objected strenuously to it.
    Senator Wyden. So when you say there would have been a lot 
of push-back, you would have told the fellow, or woman, whoever 
it was who wrote it, to go back and redo it? You would have 
taken it to others in the Department? How would you have pushed 
back?
    Mr. Ogden. I would have done just--I would have done just 
those things. I would have--I would have questioned the 
Assistant Attorney General closely on his reasoning. I would 
have wanted to get a full explanation as to his thinking about 
this and where he was coming from and the basis for it. I'm 
sure, to the extent I wasn't satisfied with that explanation 
and it didn't produce a change, I would have brought in others 
who were expert in the matter and sought their views and tried 
to get a dialog going in order to get to the right answer.
    My experience is that serious legal issues, if you push 
them, if you bring smart, good lawyers, people of goodwill into 
the discussion, people with expertise, you can avoid serious 
mistakes. I think that that process would--would have done 
that.
    Senator Wyden. I want to ask you a couple of questions with 
respect to the public's right to know. Certainly those of us 
who serve on the Intelligence Committee again see what the 
balance is really all about. For example, I feel very strongly 
about protecting operations and methods. That's absolutely key 
to ensuring that we protect these courageous people who gather 
intelligence and we protect our country with the information 
they're getting.
    At the same time, I think that there are flagrant abuses of 
the classification system. In fact, in a lot of instances I 
think it's more for political security than national security. 
I think we've got to expand the public's right to know, and 
that it's possible to do that while at the same time fighting 
terrorism ferociously.
    So my first question here involves the special court, the 
Foreign Intelligence Surveillance Court, that provides judicial 
oversight over sensitive intelligence activities. Now, this 
court does most of its work in secret. Most of its decisions 
are classified. Again, in terms of trying to strike a sensible 
balance, it seems to me it makes some sense to classify routine 
warrant applications that could contain sensitive information 
about intelligence sources, but there are a lot of important 
rulings that go to the meaning of surveillance law. I think 
that a lot of those kinds of judgments really could be redacted 
and declassified so that the country could be brought in in a 
more informed, a more complete way to these national security 
debates.
    Chairman Rockefeller and I have written to the Attorney 
General, we've written to the Chief Judge of the Court. We've 
gotten a pretty encouraging response, certainly an interesting 
response, from the Chief Judge but we haven't gotten a response 
from the Attorney General.
    If you are confirmed, would you be willing to look at these 
kinds of declassification issues anew and try to come up with a 
fresh policy that ensures that, while documents are classified 
when it deals with operations and methods and sensitive 
matters, that more of the issues relating to legal judgments 
and matters involving national security policy get into the 
public domain?
    Mr. Ogden. Senator, I absolutely will commit to take a 
fresh look at this issue, if I am confirmed. There are two 
great imperatives here. One is the imperative of protecting the 
national security. As you say, Senator--and you're a leader 
in--been a leader in this area--protecting the real secrets, 
the things we really need to protect, is critically important. 
At the same time, there's an imperative for open government and 
to let people know what's going on, to the extent we can, 
consistent with the first. I will certainly look at that and 
see if there's more that can be done.
    Senator Wyden. Can I ask one other question, if I might, 
Senator Whitehouse?
    Senator Whitehouse. Of course, Senator. Then I think we'll 
probably take a 5-minute recess, since the witness has been 
here now for well over an hour and a half, to allow him to 
refresh himself and then we'll continue with Senator Sessions.
    Senator Wyden. Senator Sessions, is that all right if I ask 
one additional question?
    Senator Sessions. Sure. Yes.
    Senator Wyden. Thank you.
    I had one question.
    Senator Sessions. Make it a good one.
    [Laughter.]
    Senator Wyden. I'll make it a short one. I can't guarantee 
goodness.
    One question that tells me a little bit about your judicial 
philosophy involves the tobacco issue, and particularly the 
tobacco industry settlement by the top Bush administration 
officials. In that particular case, the recommendation of the 
career DOJ prosecutors regarding the proper size of the 
settlement was overruled by, in effect, the Bush administration 
political appointees.
    I'd be interested in knowing whether you're troubled by the 
case, but particularly, how do you feel about having 
recommendations of career prosecutors tossed out that way?
    Mr. Ogden. Well, I'm not--Senator, I appreciate the 
question. As you know, I was a participant in initiating the 
tobacco litigation in 1999. I wasn't a party to, and I don't 
know what the specific communications were within the 
Department. I don't know for a fact that recommendations were 
disregarded. I do know that the lawsuit has been pursued in the 
Bush administration, continued to be litigated, and has for 
this full 8-year period.
    Obviously, the important, I think, part of the question--
the end of your question where you focus on, what do you do 
about recommendations from career prosecutors, they're 
incredibly important. I think that the people who are on the 
ground and who make these recommendations and who have the 
expertise are the people you need to start with. When we 
brought the lawsuit we relied on recommendations from the 
career people as to what the right thing to do was, and that 
was really the basis for the decision, was a cross-departmental 
recommendation. So I think you've got to start with that, and I 
think it's critically important.
    Senator Wyden. I look forward to supporting your 
nomination.
    Thank you, Mr. Chairman. I hope we didn't lose Senator 
Sessions.
    Senator Whitehouse. I think once the Senator was made aware 
that there would be a 5-minute recess, he took advantage of the 
break himself.
    We will stand in recess for 5 minutes and reconvene at 2 
minutes before the hour.
    Mr. Ogden. Thank you.
    [Whereupon, at 10:53 a.m., the hearing was recessed.]
    AFTER RECESS [11 a.m.]
    Senator Whitehouse. The hearing will come back to order, 
and the distinguished Senator from Alabama, a former U.S. 
Attorney himself, is recognized.
    Senator Sessions. Thank you, Mr. Chairman.
    I just really appreciate Senator Wyden's asking some good 
questions about terrorism and those issues, but I do want to 
just say something, Mr. Chairman, I feel strongly about, having 
been involved in this Committee and the Armed Services over 
these issues for some time. Not one single person held by the 
United States military was ever waterboarded. The people who 
abused those prisoners in Abu Ghraib were found by the 
military. They announced it to the world. They prosecuted them. 
Many of them went to jail for their abusive activities which 
were not in any way connected to an interrogation.
    The final full review of what happened in Guantanamo 
concluded that one prisoner possibly--the acts on one prisoner 
may have constituted torture because they used six or seven 
different techniques. Any one of them would be OK, not 
constitutionally defective, but all together they constituted 
enough stress on the individual that it made it improper. So I 
just want to defend the U.S. military. We've gone and we've 
somehow got it in our minds that we've had a massive violation 
of some of the most dangerous prisoners the war--we've ever 
seen in any war, have been damaged. That's just not so. You and 
I talked about that.
    Mr. Ogden. And we agreed on it, Senator.
    Senator Sessions. Thank you.
    And I do think, and do you not agree, that the law--that 
the FBI, whose jurisdiction is domestic law enforcement, 
should--would naturally adhere to different standards of 
enforcement and inquiry in interrogation than might be 
necessary for a prisoner of war, a person who--a terrorist who 
had been captured in a military or terrorist attack against the 
United States?
    Mr. Ogden. Senator, I certainly agree that it may be that 
different interrogation methods are appropriate in different 
settings. That's one of the things I want to--I think it's very 
important that the government look at very closely. I haven't 
been exposed to the classified information yet.
    Senator Sessions. Well, but look. Look----
    Mr. Ogden. And I think that may well be.
    Senator Sessions. Well, look. The FBI--one of the things I 
think we learned from 9/11, do you not agree, that we cannot 
treat attacks on the United States by combatants, legal or 
illegal combatants--these were mostly--they were all illegal. 
They don't get the same protections in a war-time situation 
that an American citizen gets who's investigating--being 
investigated for robbery, or dope dealing, or even murder.
    Mr. Ogden. I do agree with that.
    Senator Sessions. Mr. Ogden, I really--you know, I enjoyed 
talking with you and I think you're a good person and I think 
you have the ability to do this job.
    Mr. Ogden. Thank you, Senator.
    Senator Sessions. But I've got to tell you, I just worry 
about some very important issues, to me. One, let's take this 
American Library Association brief that you filed. Was that on 
behalf of the ACLU?
    Mr. Ogden. I think--as I recall, the ACLU was one of the 
clients. Others were the Library Association and the 
Booksellers Association.
    Senator Sessions. Who paid your fee?
    Mr. Ogden. You know, I--I think it's--I don't know how 
long, 15 years ago, and I just don't remember the details of 
that.
    Senator Sessions. You don't remember who paid your fee?
    Mr. Ogden. I--I don't recall. I don't recall if----
    Senator Sessions. You should be able to remember that.
    Mr. Ogden. Yeah. You'd think that would be the most 
important thing. But I don't recall. I don't even know for sure 
whether that was a brief that we were--it might have been a pro 
bono brief. It's possible. I just don't recall.
    Senator Sessions. Well, basically the question was, there 
was a lot of consternation that libraries and the American 
Library Association was taking the view that they could not put 
a screen on the computer stations in the library that would 
block Internet hard core pornography, even if children might 
have access to it, because of the Constitution. I always 
thought that was not a sound view and was amazed by it.
    So finally the U.S. Congress passed a law that said, well, 
if you continue to do that you're not getting Federal money. So 
you went--you represented, along with the ACLU, the Library 
Association, and contested that and said that the Library 
Association was right, and eventually lost in the Supreme 
Court.
    So my first question is, do you accept the ruling of the 
Supreme Court and would you follow it even if you didn't agree 
with it?
    Mr. Ogden. Absolutely. And if I may just make one point of 
clarification, because I realize I misunderstood. In that case 
I represented, I think, the Cleveland Public Library and some--
and some--and some library science Ph.Ds who had ideas about 
how libraries should be run. I don't believe the ACLU was a 
client in that--in that matter.
    Senator Sessions. And I guess my next question is, what do 
you personally think about this? It would trouble me that 
that's your personal view, that the Constitution would say that 
a library was required to provide computers that would enable 
even minors to see the most hard-core pornography.
    Mr. Ogden. I appreciate the question, Senator. I think it's 
quite important that--that--that children be protected from 
exposure to material that's--that's obscene as to them. I think 
that's a different standard than what is obscene as to adults. 
I think it's appropriate for parents to want to have 
protections with respect to those materials. I think what's 
very important--of course, I respect the librarians' view on 
what they need to do, but----
    Senator Sessions. Well, but the librarians didn't agree. 
The librarians said, we have to put this out and any child can 
watch it if they choose. That's what led to the conflict, did 
it not?
    Mr. Ogden. Well, my--and I--it's--we're going back a ways 
and I don't remember the details. But--but I think the 
situation was, they were concerned not about that principle, 
but about--but about the effect of the particular rule on--on 
adults' access to material. Often that's their concern. I think 
we can work hard to make sure children are protected and adults 
have appropriate access. I think that the courts have so ruled, 
and I entirely agree.
    Senator Sessions. Well, it was a big issue and it was 
fought out here and your side lost on that question.
    Mr. Ogden. The side--that's correct.
    Senator Sessions. And, you know, you were a young man and 
were honored to be selected by a Justice of the Supreme Court 
to be his law clerk, Justice Blackman. Justice Blackman, 
perhaps unwisely, and perhaps a good example, opened all his 
records, including your memorandum to him, which I think is 
cause for pause. But that was his decision, he did it.
    In one of your memos--and I raise this because of some of 
the pornography positions you've taken and some of your support 
for activists' court decisions. You said, I think, in the case 
before him, ``I think this is a very important principle. It 
will prevent the `morality'-based type of regulation at issue 
here from being employed to stop the advertisement of a host of 
products which the `Moral Majority' types, or their successors 
in interests disapprove. If they are deprived of the 
offensiveness excuse, they will have to come up with more 
creative excuses.''
    Now, millions of Americans have moral standards. Most 
people, overall, have moral standards. In Lawrence v. Texas, 
however, Justice Kennedy flatly stated, as I recall it, that 
morality couldn't play a role in the Congress passing 
legislation. How do you feel about that, and does this 
statement you've made as a young lawyer to the court--how does 
that--is that still your view?
    Mr. Ogden. Well, it certainly is not, and I appreciate your 
asking me about it. I also appreciate your prefacing your 
question with the observation that I was a young lawyer, which 
I no longer am. When I said those things I was 29 or 28 years 
old, and I regret those--those remarks, and I'll tell you why I 
do. I regret it for two reasons.
    First, I don't think it's sufficiently respectful of people 
and of opposing viewpoints, and certainly if I got a memorandum 
like that from a younger lawyer today I would take them aside 
and say this isn't appropriate, you need to be more respectful 
of people and you need to understand that people have 
legitimate points of view, and that moral views are held 
sincerely, and perhaps more sincerely than any other views and 
are worthy of respect. That's certainly how I view it today. 
That's what I would tell my children. That's what I would tell 
younger lawyers talking to me, I disapprove. I would 
disapprove.
    Senator Sessions. The question I--Justice Kennedy's 
question--my time's up--was really that morality couldn't 
provide a basis for congressional statute. I guess thousands of 
years have taught us that certain things tend to be--have bad 
consequences and certain things tend to good, and Congress 
periodically considers those things. We may not have the 
American Psychological Association before us at that moment to 
divine what's right and what's wrong. We have to decide that.
    So maybe I'll follow up with a written on that. I'd like to 
know a little bit more about it because I don't feel like you 
should be disqualified for representing pornography interests 
and taking positions that I don't agree with if you'll follow 
law and you understand some of the basic principles. I think 
that would not disqualify you.
    We'll have a second round? Is that right?
    Senator Whitehouse. Of course.
    Let me now recognize Senator Kaufman.
    Mr. Ogden. Mr. Chairman, may I just make a brief response 
or would that be out of order?
    Senator Whitehouse. No. You're welcome to. Then we'll turn 
to Senator Kaufman----
    Mr. Ogden. I just wanted to express--I'm sorry.
    Senator Whitehouse [continuing]. Who has been waiting 
patiently.
    Mr. Ogden. Senator, if I may just respond briefly to 
Senator Sessions.
    Senator Whitehouse. Be my guest. Sure.
    Mr. Ogden. Thank you.
    I wanted to express my appreciation to you, Senator, for--
for your--for your remarks and for your questions, and I--I 
certainly understand the reason that you would ask about--about 
these things. I'll be very pleased to respond, either in your 
second round or--or in written form to your questions on that--
on that subject.
    Senator Whitehouse. Senator Kaufman.
    Senator Kaufman. Mr. Ogden, congratulations.
    Mr. Ogden. Thank you, Senator.
    Senator Kaufman. Really, thank you and your family for 
taking on this new position of public service.
    However, I must say, looking at your record--extensive 
record in the Justice Department, this has got to be a 
wonderful opportunity for you to use the things you learned to 
try to do something about some of the incredible problems the 
country faces. So, thank you for coming. I'm sure you will do a 
good job.
    Just to follow up. Can you point to some things in your 
record that would reassure us on how you deal with with 
children and families?
    Mr. Ogden. Well, thank you, Senator, for the question. I 
can assure you and--and--and--and the--and the Committee that 
issues of children and families have always been of great 
importance to me. One of the--one of the things I'm the 
proudest of in my legal career is a brief that I wrote in a 
case called Maryland Against Craig, which I wrote also for the 
American Psychological Association, in which the position of 
psychology there was to explain the way in which a direct 
confrontation between a victim of child sexual abuse and the 
alleged abuser in court would be psychological damaging--
psychologically damaging and would actually tend to make their 
testimony less accurate. We argued that they should be allowed 
to testify in these important criminal matters by closed-
circuit television. That brief was something that the court 
took very seriously and it helped them decide that issue. I 
think that was--that was important--important to me.
    In the government, I worked, as I said, to defend major 
child pornography and child obscene, as to children, 
legislation and did so aggressively. I'm proud to have the 
support of the National Center for Missing and Exploited 
Children, who worked with me during those years, I think in 
large part because of the work that I did on those--on those 
cases.
    Senator Kaufman. Let me confirm, what are going to be kind 
of your top priorities as Deputy Attorney General?
    Mr. Ogden. No. one, national security. We need to ensure 
that the American people are safe, that--that terrorism is 
combatted as aggressively and as effectively as it possibly can 
be. Number two, issues related to the rule of law, restoring 
nonpartisanship, ensuring the protection of criminal 
investigations from inappropriate influence, protecting career 
hiring from inappropriate influence, dealing with transparency 
issues like some of those that have been discussed, all of 
which I group as any rule of law bucket.
    Third, doing everything we can do, recognizing that we have 
budgetary limitations and recognizing the imperative of 
protecting the national security, to restore some of those core 
historic functions of the Department to the full effect, 
including criminal law enforcement in a range of areas: 
Financial crime, violent crime, civil rights, and a range of 
other priorities that have been ignored. So I guess I would say 
those, going in, are my priorities. But I--you know, we'll sit 
down with the Attorney General, we'll work with this Committee 
to--to try to refine those and--and just do the best we can.
    Senator Kaufman. In the 1990s we did a great deal of help 
to State and local law enforcement, and then as a result, I 
think, affected a cause in the drop of crime. Do you have any 
thoughts about what you'll be doing, coming as Deputy Attorney 
General, to try to get back to some of the programs that worked 
in the 1990s?
    Mr. Ogden. It's absolutely critical that we restore the--
the funding programs that supported State and local law 
enforcement, that supported--that created, really, a very 
strong working partnership between the Department of Justice 
and State and local law enforcement, and grants and the 
financial support of those programs is a critical part of that. 
We've fallen off there and I think we need to find a way to 
restore it, because it worked. I mean, you just have to--all 
you've got to do is look at the statistics, talk to the experts 
at the State and local level. Those programs worked, and I 
think we need to--to--to fully fund them.
    Senator Kaufman. And I think we all agree the number-one 
priority should be national security, but there seems to be 
kind of--in the shift to do national security, maybe we haven't 
done as much as we would in the other areas you talked about, 
which are crime and finance. Could you talk a little bit about 
how we get back to, you know, doing the national security, but 
also fighting crime in the Department of Justice?
    Mr. Ogden. I think we need to look--thank you, Senator. I 
could not agree with you more, that we have to find a way to do 
both. We have to find a way to protect the national security, 
we have to find a way to do it in a way that respects the--
the--the law and the constitutional rights, of course, but 
we've got to do it aggressively and absolutely effectively, and 
we've got to find a way to address these other critical 
priorities, the ones you've identified, in addition, civil 
rights, in addition, violent crime.
    And how you do it? I think you've just got to--you've got 
to use common sense. You've got to bring in the people who 
were--who were running these programs. You've got to figure out 
where you can save, the things you can do that get the most 
bang for the buck, and the things you're maybe doing that get 
the least bang for the buck and try to put the--the--the effort 
on the things that work. And that's an inclusive process that's 
got to be driven from the top, but has got to take its input 
from the people who are--who are on the ground doing the work.
    Senator Kaufman. You know, there's a lot of talk in the 
popular press about financial people that are committing 
financial crimes, or alleged financial crimes, so sometimes I 
think it's dismissed by people when elected officials talk 
about it as purely political. But I can tell you, talking to my 
colleagues, it comes right from the gut. People are really 
upset with the fact of what went on in Wall Street, and upset 
with the fact that the number of financial crimes that we dealt 
with in 2008 were considerably less than we dealt with in 2001.
    Do you have any thoughts on how the Justice Department 
can--I don't want to go back. I want to look forward. I really 
do want--I think, you know, we have an incredible financial 
crisis. We've got to look forward. But I think part of looking 
forward, to most people, is how we go back and find out the 
ne'er-do-wells who helped us get to where we are today, and not 
in any pejorative way or any prejudiced way or anything else. 
How do we--do you have any thoughts about how we can go back 
and kind of deal with some of the crimes that were committed 
that led to this incredible financial crisis we have?
    Mr. Ogden. Well, I think we need--first of all, Senator, I 
agree with you entirely, that the--that if crimes were 
committed, and to the extent crimes were committed that 
contributed to the situation that we're in today, there needs 
to be an appropriate and strong law enforcement response. That 
will require resources to be devoted to it. I think we'll need 
to figure out the most effective way to do that. That's 
something I know the Attorney General is committed to. If I am 
confirmed, it's something I will be committed to.
    I think we'll need to talk to the U.S. Attorneys, we'll 
need to talk to the FBI, we'll need to--we'll need to--to 
coordinate with State and local law enforcement because they 
may have an important role to play here to figure out what the 
most effective approach is and to make sure that people are 
held accountable if they committed crimes. I would say that--
that--that serving jail time may well be an appropriate result 
that could--could be a big deterrent in the future, because--
because that's what this is about.
    Senator Kaufman. When we get down to that, could you keep 
the Committee informed? I would personally like to know what it 
is we're doing, and maybe not when you have the whole answer. 
But I just really think this is an important part of the 
healing that has to go on in the country. People are really 
hurting, and I think we need some kind of a program to try to--
they feel that people are getting away with murder, or 
something short of murder, and anything you'd be doing in this 
area in a timely manner, realizing your other priorities, I 
would very much appreciate it.
    Mr. Ogden. Senator, I appreciate that, and absolutely. I 
think in the setting of priorities, that is an area where there 
ought to be an open dialog with this Committee.
    Senator Kaufman. Thank you. Good luck.
    Mr. Ogden. Thank you. Thank you very much.
    Senator Whitehouse. The distinguished Senator from Arizona, 
Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman.
    Welcome.
    Mr. Ogden. Thank you, Senator.
    Senator Kyl. And I'm sorry I wasn't here for some of the 
earlier questions, but I don't think they'll be too 
duplicative.
    I understand you wrote a brief that opposed parental 
notification for 14-year-olds, and that one of the arguments 
you made in that brief is that girls that age have the capacity 
to make an abortion decision.
    If you believe that 14-year-old girls have that capacity, 
then did you also believe that they do not require protection 
under child obscenity laws?
    Mr. Ogden. Well, first of all, Senator, I certainly believe 
that they deserve protection under child obscenity laws. So if 
I could start with the end of your question, I believe that the 
laws that protect minors from material that is obscene as to 
them--and that's a different category of material as to what's 
obscene as to adults--are constitutional and they're 
appropriate, and they need to be enforced.
    The brief in question was filed, I think, in 1990 or 
something like that, in that timeframe, on behalf of the 
American Psychological Association, which was my client and--
and hired me to--to file briefs in that case, and others. The 
purpose of those briefs, and the way we did it, was to sit down 
with experts who the Psychologists Association identified for 
us, who were expert in the relevant area. They helped us 
identify what the position of organized psychology was on these 
questions and to present the empirical evidence, the studies 
and the research that supported the positions that were taken.
    Senator Kyl. So let me just be clear.
    Mr. Ogden. And that was the view. That was what we did 
there, and that's what that brief was.
    Senator Kyl. You understand our time is kind of constrained 
here.
    Mr. Ogden. I'm sorry. I apologize.
    Senator Kyl. So if you could get to the point quickly.
    So you would advocate a different standard then for 14-
year-old girls who have the capacity relative to the abortion 
issue, but you say may not have the capacity relative to 
pornography. Is that, in effect, what you're saying?
    Mr. Ogden. I guess I would--I would--well, I don't think--I 
don't mean to say that because I don't mean to necessarily 
accept the first part of it, that is, or agree with it. That 
brief was a brief on behalf of--of a client that was presenting 
the views of organized psychology. They don't represent my--I'm 
not a psychologist and I don't--and I don't know about those 
views.
    Senator Kyl. But that was the argument that you made in the 
brief.
    Mr. Ogden. That was the argument that I made for 
psychologists.
    Senator Kyl. Okay.
    Mr. Ogden. But--but what I wanted to emphasize, Senator, 
was my commitment to protecting minors from material that is 
obscene as to them.
    Senator Kyl. Well, you understand the reason why we're 
asking some of these questions, because you're going to have a 
significant role in advising the Attorney General in policy at 
the Department of Justice. On behalf of that client you've 
taken some very extraordinary positions, some very left-leaning 
and unorthodox positions. If you're telling us that you didn't 
believe any of that, that's one thing.
    But let me ask you about another very specific case. You 
submitted the amicus brief in Knox v. United States, correct? 
That's been discussed, I think, briefly here.
    Mr. Ogden. I did.
    Senator Kyl. And that case presented the issue, how to 
define child pornography under Federal pornography statutes, 
right?
    Mr. Ogden. That's correct.
    Senator Kyl. Now, the defendant in the case was convicted 
under those statutes after U.S. Customs intercepted foreign 
video tapes that he'd ordered labeled ``Little Girl Bottoms'' 
and ``Little Blondes.'' And let me read you the description of 
the Third Circuit, which upheld the conviction and ask you if 
that's correct, to your recollection.
    The tapes contained numerous vignettes of teenaged and pre-
teen females between the ages of 10 and 17 striking provocative 
poses for the camera. The children were obviously being 
directed by someone off camera. All of the children wore bikini 
bathing suits, leotards, underwear, or other abbreviated attire 
while they were being filmed.
    The government conceded that no child in the films was nude 
and that the genitalia and pubic areas of the young girls were 
always concealed by an abbreviated article of clothing. The 
photographer would zoom in on the children's pubic and genital 
area and display a close-up view for an extended period of 
time. Most of the videotapes were set to music.
    In some sequences, the child subjects were dancing or 
gyrating in a fashion not natural for their age. The films 
themselves in the promotional brochures distributed by Nathir 
demonstrate that the videotapes clearly were designed to pander 
to pedophiles.''
    That is the description of the court. To your recollection, 
is that description accurate of the material?
    Mr. Ogden. I never saw the material, Senator. I remember 
that that's how the Third Circuit described it after--I was no 
longer in the case at that point, I believe. But that was what 
the Third Circuit said in describing the material.
    Senator Kyl. But you didn't see the material yourself?
    Mr. Ogden. I did not.
    Senator Kyl. But your brief argued that it didn't 
constitute child pornography. Is that not correct?
    Mr. Ogden. Yes. And the--and the--and the basis for the 
argument which was made on behalf of the librarians and the 
booksellers of this country was that--that they just wanted a 
clear line which they hoped would be of nudity, that you 
couldn't have child pornography unless there was nudity. That's 
what they argued for. That argument lost and--and that's not 
the law. I think that's--that's appropriate.
    Senator Kyl. Well, would you advocate as a policy for the 
Department of Justice that the standard that the court set out 
is accurate or is acceptable, or would you argue for a more 
liberal interpretation, for example, that nudity was required 
for it to be pornography?
    Mr. Ogden. I would argue for the interpretation that the 
court established and for the full enforcement of the law, as 
the courts have--have understood it. That was an argument made 
for a client. As--as the lawyer for the United States, I will 
aggressively and appropriately enforce the law of the United 
States to its full letter. And I have a record, Senator, of 
doing that.
    Senator Kyl. Well, let me ask you this, yeah, because this 
goes right--do you believe that the First Amendment permits 
prosecution for child pornography under the facts of the case 
that we're just now discussing?
    Mr. Ogden. I do.
    Senator Kyl. Let me ask you about foreign law, because you 
submitted a brief in Roper v. Simmons invoking foreign law in 
favor of an argument banning the death penalty for those 
convicted under age 18. How much weight do you believe foreign 
law should be given to interpretations of the United States' 
Constitution?
    Mr. Ogden. I think typically very little weight, Senator. I 
think it depends somewhat on the context, which--which 
provision. That was an Eighth Amendment case, and some Justices 
of the Supreme Court looked to practices in other countries in 
deciding what is cruel and unusual punishment. As a lawyer, I 
needed to make that argument. I think in most areas the 
governing law is--and really ultimately in all areas the 
governing law is the U.S. Constitution, the U.S. statutes, and 
that's where we should--should--should focus our attention.
    Senator Kyl. One of the questions asked of Chief Justice--
of the Supreme Court, now Justice Roberts--I'll paraphrase. I 
don't remember the exact wording. But in effect it was, how 
would you rule in a case pitting a big corporation against the 
little guy, and the little guy may have been defined as someone 
who was relatively powerless. Do you remember that question and 
his answer to it?
    Mr. Ogden. I don't. But----
    Senator Kyl. Well, what would your view be of judging in a 
case pitting a big corporation--the reason I ask is because you 
have written some and talked about the need to employ human 
compassion and described a tension between the rule of law and 
human compassion in judging cases.
    Mr. Ogden. Well, I--if, again, as I said to Senator Hatch, 
it's certainly possible that I've said things that--that--that 
were not expressed well. And I certainly don't agree that--that 
in judging cases one should have a tension between the rule of 
law and anything else. The bottom line in a case between a big 
corporation and a--and a--and a relatively powerless person is 
the law, and the question is, how is the law written and what 
should--and--and--and what is the law as--as established? And 
that's my view. Frankly, I've represented parties on all sides. 
I've represented a number of big corporations in cases where, 
on the other side, were people who could be described as 
relatively powerless, and I think in those cases--and in all 
cases--the law should govern.
    The role of compassion--my view of that, if I may, just to 
go on, because I know that's really the burden of--of--of the 
question, I think it's important, as I think the President 
does, that--that--that--that judges understand the 
circumstances of the people who are in front of them and 
understand the consequences of their rulings. I think that's 
quite important. But in the end, the law has to guide legal 
judgment.
    Senator Kyl. Just a concluding comment, if I could, Mr. 
Chairman. You've, as a lawyer, taken positions on behalf of 
clients which I characterized as left-leaning or a bit, well, 
outside the mainstream. That's my characterization. As a 
representative of all of the people of the United States, it 
will be important to leave behind the positions taken on behalf 
of clients and to, as you just said, uphold the rule of law in 
all you do.
    So, it's not so much a question, but a comment, that 
sometimes it's not easy to do. I used to represent clients too, 
and I've always been very careful. I've tried to be careful 
that I don't give them any extra break in matters of policy 
that come before me as a--as a legislator. I think the same 
thing needs to be true with regard to your approach to the law 
at the Department of Justice. I gather you would concur in 
that.
    Mr. Ogden. I concur strongly. And the only thing, if I--if 
I might add, is that I have experience with this, having been, 
for six and a half years, in the Federal Government, dealing 
with issues that related to issues that--that I had advocated 
on for clients previously. And I--and I'm quite proud of my 
record. I--I very consistently, I think, did that.
    I had the support of--of--of people who were involved and--
and saw me do that who--who I think will testify, and have 
spoken for me, that I do and have put the interests of the 
United States and the rule of law ahead of any other 
consideration.
    Senator Whitehouse. Indeed, that's one of the joys of 
government service.
    Senator Cardin.
    Senator Cardin. Thank you very much, Mr. Chairman.
    Mr. Ogden, welcome. We thank you very much for your 
willingness to serve in this very important public position.
    Just so I complete the cycle, I think you said this, but in 
regards to child pornography, if I heard you correctly, you're 
saying you not only accept, but support, the court decisions 
and are prepared to enforce the law aggressively as it has been 
interpreted by the courts?
    Mr. Ogden. Absolutely, Senator.
    Senator Cardin. Thank you. I think that's the key point 
here. We certainly understand your position in representing 
clients. I appreciate that clarification for the record.
    I want to talk a little bit about the U.S. Attorneys and 
the supervision of U.S. Attorneys. My colleagues have already 
brought up the politicization of the U.S. Attorney's Office 
under the former administration and how there was political 
involvement in decisions made as to types of cases which should 
be prosecuted.
    I want to talk about what you see as the appropriate role 
in giving guidance to the U.S. Attorneys, but allowing the U.S. 
Attorneys to work with local government officials as to the 
priorities within the various jurisdictions. In the State of 
Maryland, we have a very close working relationship between our 
U.S. Attorney and our local government officials in setting 
priorities that are important for law enforcement in Maryland.
    I want to hear what you believe is the appropriate role to 
be taken by your direction, or the direction of the Department 
of Justice, in the resources and priorities within the U.S. 
Attorneys, and how the U.S. Attorney can establish the 
priorities for that particular jurisdiction, working with the 
local officials.
    Mr. Ogden. I think--Senator, I appreciate the question. I 
think it's an extremely important issue as to--as to--to make 
sure that we both have a national approach to the legal issues 
that require a national approach and take appropriate account 
of the Federal issues that--that vary from jurisdiction to 
jurisdiction.
    I think what it requires is identifying what the national 
priorities are and communicating those very clearly, at the 
same time having a dialog back and forth with the U.S. 
Attorneys that help us establish that. Obviously this is a 
Nation built of localities, and we need to know what's 
happening all across the country in setting those priorities.
    At the same time, certain areas have certain specific 
issues that need to be addressed. The interaction with State 
and local law enforcement is important. I've addressed the need 
for a seamless, coordinated enforcement, mutual support. And so 
I think that a--that a dialog at the local level, setting 
priorities, is important at the same time that we have national 
direction with respect to national priorities.
    Senator Cardin. Clearly, terrorism--fighting terrorism was 
a national priority that, by necessity, received much more 
attention and requirements for the local U.S. Attorney's Office 
to devote its resources. Task forces were established so that 
we could have a common strategy involving local law 
enforcement. I think that was the right model to use to try to 
develop common strategies to deal with a national problem using 
the U.S. Attorney's Office and local law enforcement.
    I would hope that you would have a transparent process so 
that the U.S. Attorneys are able to make their points in a 
comfortable setting so that we can take the limited resources 
that are available and use them in the best interests of the 
particular jurisdiction in which the U.S. Attorney operates, as 
well as the national priorities.
    Mr. Ogden. I appreciate that, Senator. I agree entirely 
that we need to have that kind of dialog and--and--and make it 
possible to really understand the problems each U.S. Attorney 
is confronting and support them appropriately.
    Senator Cardin. We also look to you to give us advice as to 
laws that may need to be changed in Congress in order for you 
to effectively carry out your law enforcement function. So let 
me mention the crack powder disparity issue and get your views 
on that. This Committee has had hearings on that subject, the 
disparities.
    We know that the overwhelming percentage of people who are 
incarcerated on crack violations are African American and 
minorities. We know that there is a huge disparity between 
powder and crack as far as the minimum sentencing is concerned. 
I think it's, 5 grams will trigger a minimum sentence of 5 
years for crack cocaine violations, whereas powdered cocaine, 
it's 500 grams, so you have a 100:1 disparity.
    I want to perhaps get your view as to how you would go 
about making recommendations to Congress on changes in Federal 
criminal statutes in order to have more confidence among the 
community, that our laws are fair and are not discriminatory 
against any segment of our community.
    Mr. Ogden. Well, we need to have, as you say, laws that are 
in the--in the drug areas and others, that are tough and that 
are also fair and understood to be fair. And I think there's a 
consensus that's really growing, that the disparity between 
crack and cocaine, as you--powdered cocaine, as you say, a 
100:1 disparity, needs to be changed and we need to address 
that promptly.
    As far as the way that I would propose to go about it, if I 
were confirmed, certainly we need to consult with all the 
Federal authorities with respect to this. We need to look at 
what the Sentencing Commission's considerations are. We need to 
talk with this Committee, and there's a lot of expertise here 
on both sides. I know that a number of members of this 
Committee have very constructive thoughts about how to address 
these issues.
    So we would engage there. We would look at--at--at all 
the--at all the potential options and then work closely with 
this Committee to try to develop an approach that--that--that 
eliminates the disparity, or at least reduces it very sharply.
    Senator Cardin. I just want to point out one more part on 
this disparity. And I'm not sure how these statistics are 
obtained, but the information that's been made available to 
this Committee indicates that the minority use of crack cocaine 
is much lower than the incarceration rate of minorities for 
violations of the crack cocaine statutes.
    So that also raises questions as to the even-handedness of 
prosecution and going after those who violate our laws. So it's 
not only the underlying statute, which I do believe needs to be 
revisited, but also the way in which resources are used to 
prosecute those who violate our laws. I would hope that you 
would have recommendations to us as to how we can have more--
establish more confidence that the laws are being enforced 
evenly and to all communities.
    Mr. Ogden. Senator, what you say about the statistics 
concerns me. I'm not familiar with them. I will certainly look 
into that issue. I agree with you. We need tough, firm, smart, 
but fair law enforcement at every level, from the--from the 
prosecutorial level, throughout our system.
    Senator Cardin. Thank you.
    Thank you, Mr. Chairman.
    Senator Whitehouse. I think everyone has had a first round, 
so let me jump in at this point and first recognize your family 
who are here. I, too, married into a matriarchal clan, and so I 
share the appreciation that you and your son and your uncle 
must have for being surrounded by such a wonderful array of 
mothers, aunts, sisters, nieces. It is an impressive sight.
    Mr. Ogden. Thank you, Senator.
    Senator Whitehouse. And I want to let you know I thought 
the opening quote that you had in your testimony, ``I have a 
special regard for the Department of Justice. I know it to be 
an essential bulwark of our democracy and our freedom. I am the 
proud son of a career Federal civil servant,'' puts you in what 
I consider to be about exactly the right place to do your job 
well.
    Mr. Ogden. Well, thank you.
    Senator Whitehouse. I have been a persistent and animated 
critic of what has happened to the Department of Justice under 
Attorney General Ashcroft, Attorney General Gonzales, and 
Attorney General Mukasey, to different degrees, obviously. But 
I do want to take this opportunity, since you're the candidate 
for Deputy Attorney General, to say a good word on behalf of 
your predecessor, Mark Filip. I've heard nothing but good 
things about him. He left a lifetime appointment to the Federal 
judiciary to come back to the Department's rescue.
    Whatever my disagreements have been with Attorney General 
Mukasey, I have heard nothing other than that Deputy Attorney 
General Filip has discharged his responsibilities in the finest 
traditions of the Department. And since I am a persistent 
critic of the Department, I thought it was appropriate to 
provide recognition where I feel it was due, and I think it's 
appropriate given that you will be taking his position.
    A couple of quick questions. OPR is going to be producing a 
report of its review of the Office of Legal Counsel in the 
coming weeks during the course of this administration. Senator 
Durbin and I have a letter from Marshall Jarrett, indicating 
that he will release that report to us.
    Inspector General reports are presumptively public and are 
normally released, OPR reports, a little bit more 
discretionary. I'd like your commitment that you will honor the 
promise that Marshall Jarrett has made and release the OPR 
report when it is public, when it is completed.
    Mr. Ogden. Well, Senator, I agree entirely that--that 
public release of--of important reports by the Inspector 
General and by OPR is extremely important. I have high regard 
for Marshall Jarrett. I'm not familiar with the specific 
commitment he made to you, but if he feels it can be released, 
it seems to me that that must be the case.
    Senator Whitehouse. We'll send you the letter and follow 
up.
    Mr. Ogden. Thank you.
    Senator Whitehouse. Similarly, I had a question about the 
investigation of the interference with our U.S. Attorneys that 
has been transferred to Ms. Dennehy, the U.S. Attorney. There 
is an inconsistency between what the Office of Inspector 
General and the Office of Professional Responsibility asked 
for, which is to have a prosecutor appointed who could work 
with them to help them complete their public review of this 
with what took place, which is to have a U.S. Attorney 
authorized to proceed behind the veil of grand jury secrecy to 
see if there are criminal charges.
    I don't know. I asked Attorney General Mukasey. I've never 
received an answer as to how that inconsistency has been 
resolved. It may very well be that Ms. Dennehy has been 
authorized and has sought the permission of the court to 
provide information to OIG and OPR so they could continue their 
report. It may be not. It may be that this was a giant exercise 
to push this whole scandal behind grand jury rule 6(e) until 
the election could be over and the administration could leave. 
That question is pending with the Department and I would like 
your commitment that you will, in due course and in a 
reasonable timeframe, answer it for me.
    Mr. Ogden. You certainly have my commitment, Senator, that 
we'll look into those questions and make sure that the right 
thing is being done and get back to you with whatever we can 
possibly tell you about that.
    Senator Whitehouse. Thank you.
    I am also concerned about the executive privilege 
assertions that have been made by the previous administration. 
As an Attorney General, as a Governor's legal counsel in Rhode 
Island, I've spent a fair amount of time on executive privilege 
on the executive side of the privilege, and never in my life 
would I consider making the assertions that this administration 
has made. I don't think they get past the laugh test, frankly.
    Previous administrations have done essentially an executive 
privilege directive from the President. President Clinton did 
it, President Reagan did it. I would encourage that this 
administration do it, and I would ask that in preparing that, 
you, at a minimum, consult with this Committee and consult with 
the House Judiciary Committee to try to resolve as many of the 
pending issues related to executive privilege as possible.
    If we can sort of cabinet down to an area of really 
legitimate disagreement, I think that would be a helpful public 
service. Right now, my belief is that executive privilege was 
used as a stonewall, and frankly they didn't care whether the 
theories were true or not as long as they were adequate to push 
the question beyond their term of office.
    And so I think we have to kind of recalibrate, and I think 
doing it in a bipartisan way and doing it in a way that 
incorporates both executive and legislative views would be 
helpful. I'd like to hear your thoughts on that.
    Mr. Ogden. Well, you--you--Senator, I think it's a very 
interesting idea. You raised it in our--in our private 
conversation. I've thought about it some since then. I think it 
is an intriguing idea. It does seem to me, as I--as I said to 
Ranking Member Specter earlier, that the engagement with this 
Committee on oversight, and with the Congress as general on 
oversight, is very, very important and we need to narrow any 
differences as much as we possibly can so that this Committee 
can perform its functions.
    Executive privilege is one of the issues there. I think we 
need to have a coherent and consistent approach, I think an 
approach that involves accommodation as much as we can, and 
communication. So I think it's a very interesting idea. I will 
discuss it with--with Attorney General Holder. I think 
ultimately that is probably his call.
    Senator Whitehouse. And White House counsel, I suspect, 
also.
    Mr. Ogden. And with Mr. Craig. But I like the idea. I think 
it's intriguing, and I like, in particular, the idea of a 
bipartisan engagement on it so that--so that we try to at least 
have all thoughts and ideas together as we--as we fashion our 
approach.
    Senator Whitehouse. A final question. As you do the damage 
assessment, which I think is a very important and very useful 
exercise, I suspect that things that we are not necessarily 
aware of now will be disclosed now that you are in the 
Department. There are people who are willing to bet their lives 
and their careers to become whistleblowers. There are people 
who are willing to give up the job that they love to get away 
from an administration that is tainting the Department.
    There are others who will simply hunker down until the 
storm is through, and when they believe they have legitimate 
management again, they will come back out and it'll be, hey, 
boss, I've had this memo in my, you know, drawer for 6 months. 
I hope that you will set up a process so that people who are 
doing that know where to go with it, and that you as managers 
have a repository where those sorts of new disclosures will go 
so that they can be properly analyzed and reviewed, added to 
the damage assessment, if necessary, and have appropriate 
action taken. I think if that's just left to the ordinary chain 
of command, it might get confused. I hope you'll consider 
specifying, whether the Attorney General will consider 
specifying within the Department how such disclosures are to be 
treated.
    Mr. Ogden. Well, I think that, again, that's a very 
important and interesting idea that you suggested to me in our 
private conversation. I am a big believer in whistleblowers and 
in the need to make sure that people feel comfortable coming 
forward to--to make complaints. And I will say--and to bring 
problems to--to the attention of management. I will say that I 
don't view that only as an exercise about people blowing the 
whistle on the past.
    I think what we need is a process that encourages 
whistleblowing in this administration, and in any other 
administration going forward. This is--the business of making 
sure that we're doing the right thing is an ongoing business, 
and--and so my commitment will be that we will--I will work 
with the Attorney General, we'll talk with the career lawyers 
who have dealt with these kinds of issues, we'll try to fashion 
an appropriate process that encourages whistleblowers to--to 
raise issues that need to be addressed.
    Senator Whitehouse. Thanks, Mr. Ogden.
    A vote will be going off shortly. Senator Sessions has 
asked for a second round. In the time that we have available, 
he's welcome to take that time.
    Senator Kyl.
    Senator Kyl. Mr. Chairman?
    Senator Sessions. I will yield to Senator Kyl.
    Senator Kyl. I just have one quick comment, and then a 
question. I do think if we're trying--I appreciated your 
response regarding executive privilege, but on behalf of good 
people who worked in the Bush administration I would disagree 
with the comment that the Bush administration didn't care 
whether theories were true or not. I am sure that the advice 
that was given by lawyers in the Bush administration and the 
Department of Justice relating to executive privilege were 
thought through carefully and that people were not unconcerned 
with the truth of them.
    One of the things in our previous exchange--you alluded to 
the arguments you made on behalf of clients, but you also have 
said some things about your own personal views. I wonder how 
extensive they would be carried into your new position.
    In a 1990 tribute to Justice Blackman, you praised the 
Justice's separate opinion in the affirmative action case, 
Regents of the University of California v. Bakke. His opinion 
not only endorsed the factor approach to affirmative action 
that considers a wide variety of factors, including race, it 
also would have upheld the University of California's more 
sweeping approach that entailed outright set-asides and quotas, 
which is the approach the court struck down in Bakke.
    You wrote, ``To this day no other writing on the subject of 
affirmative action is so persuasive to me as the Justice's 
short Bakke concurrence.'' Does that remain your opinion today?
    Mr. Ogden. It is not my opinion today that quotas or a 
rigid approach to affirmative action is appropriate. What I 
think intended--and again, the failure of expression is 
entirely my fault. What I meant to articulate was that his--his 
statement that ``we must take account of race to get beyond 
race for a time'' was something that I found then to be very 
persuasive, and I think the court's approach, the multi-
factored approach that you identify, which has found that to be 
appropriate in some circumstances, is really based on that 
idea. It's something that we wish we didn't have to do, but in 
limited circumstances we do. But I certainly don't think a 
rigid approach is appropriate and I don't agree with that way 
of going about affirmative action.
    Senator Kyl. Thank you.
    And thank you, Senator Sessions.
    Senator Whitehouse. Does Senator Cardin wish a second 
round?
    Senator Sessions. I was going to use the rest of his two 
and a half minutes he left me.
    First, I want to say, another example about your memo to 
Justice Blackman indicates to me that judges are entitled to 
have private memorandums from their clerks about how they 
should think about a case. I don't think Senator Whitehouse 
wants a memorandum to him from his staff revealed every time 
somebody would like to peruse it and see what they told you. I 
think there is a legitimate basis for any administration to 
assert reasonable standards of confidentiality within its own 
house and within its own debate.
    Do you think that's----
    Senator Whitehouse. I do agree with that, Senator.
    Senator Sessions. Thank you. Very good.
    Mr. Ogden. And I'm on board, too.
    Senator Sessions. OK. Good.
    In Simmons, you argued that--this is a death penalty case 
which was a 17-year-old who committed brutal murder. Captured a 
lady, told people beforehand he was going to do it. Didn't even 
know her, I don't think. Taped her up, threw her off the 
bridge, and she drowned, and bragged about it afterwards.
    Well, we can disagree on that, but you argued international 
law should be considered by the United States Supreme Court as 
part of evolving standards of decency, and that should impact 
the United States Supreme Court in interpreting the United 
States' Constitution, which I believe is a contract signed a 
number of years ago with the American people that has been 
amended formally on a number of occasions.
    Do you think international law should have been a factor in 
that decision?
    Mr. Ogden. Well, I think it's--I think it's an interesting 
question, whether evolving standards of decency. And that's not 
my phrase, of course, Senator, that's the----
    Senator Sessions. But I think you used that phrase in your 
brief.
    Mr. Ogden. I do, because that's the test that the Supreme 
Court has established in determining what is cruel and unusual 
punishment.
    Senator Sessions. That is true, the phrase preceded you.
    Mr. Ogden. And a good lawyer always tries to tell the court 
that he wins based on the court's standard. And that is the 
court's standard, evolving standards of decency. The question 
whether practices in other countries should inform our view of 
what evolving standards of decency are, I think, is a difficult 
question. The court is divided on it. I think it's probably 
relevant in thinking about these issues, but--but it's really 
not so much foreign law as foreign practice.
    But the fundamentally important thing is domestic law, 
domestic practice, because the evolving standards are our 
standards, the American people's standards.
    Senator Sessions. Well, I think it's one thing to 
appreciate the logic of a court in the United Kingdom, but I'm 
not sure there's any relevance at all to an interpretation of 
United States Supreme Court what a Parliament of France, or 
China, or any other place did.
    Mr. Ogden. I--I agree with--I agree with you.
    Senator Sessions. Isn't there a danger when you use--allow 
a judge to take a statute or constitutional provision and 
provide and interpret it in light of evolving standards of 
decency? Isn't that, in fact--isn't the danger in that that it 
is virtually a license? It gives the judge the ability to pick 
any standard, any news article or idea floating around the 
world to allow them to interpret the statute in a way that it 
wouldn't have otherwise been interpreted. Isn't that no 
standard at all? Isn't it basically allowing a judge to utilize 
their own personal values and opinions to color their 
interpretation of the statute?
    Mr. Ogden. I think as an initial matter it's quite--I think 
there's a danger. I think there's a danger with--with many, 
particularly, constitutional provisions, that--that there has 
to be great rigor in applying them to avoid just that kind of 
problem, and I think it's extremely important.
    Senator Sessions. We're concerned about that. It's a 
dangerous trend. If you love this Constitution and you really 
respect it--I believe Professor Van Alsteen said, at Duke, 
you'll interpret it as it's written. You start playing around 
with it and interpreting it like somebody in a foreign country, 
their policies, then it erodes the very principles that protect 
us, protect our liberty in a very firm way.
    Mr. Ogden. I have one--one--I guess, I don't mean--I don't 
disagree with what you've just said. I do want to point out, in 
that case the first arguments we made were about U.S. practice 
and in trying to decide, what does America consider today to be 
cruel and unusual. The question there was whether it was cruel 
and unusual to punish, with death, somebody who was a minor 
when they committed the crime. The----
    Senator Sessions. Well, you're talking about politically, 
what people are doing politically today. But the Constitution 
allows things that might be rarely done, doesn't it?
    Mr. Ogden. Well, the----
    Senator Sessions. If it allows an event and--and 50 percent 
statutorily--or 80 percent of the States statutorily constrict 
that power, which they may have a right to do, it doesn't mean 
that another State can't allow the traditional interpretation 
to continue.
    Mr. Ogden. Senator, I have--I--first of all, have--want to 
express my appreciation for your constitutional knowledge and 
scholarship. I don't want to--I don't want to take you on at 
all. I think the--in this area the word ``unusual'' is a word 
that is in the Constitution. Cruel and unusual punishment is 
prohibited. I think that's why----
    Senator Sessions. Both--both cruel and unusual.
    Mr. Ogden. It must be both. I agree with you, it's got to 
be--and it says ``and,'' it doesn't say ``or.'' But it's 
because the Constitution speaks of unusual punishment that is 
cruel, being improper, that advocates for people challenging 
punishments talk about practices across the country and talk 
about them throughout the world. I think that's the reason for 
it. You may think that's not appropriate, and I think there are 
arguments to that effect, but it seems to me that's the reason 
that that's done.
    Senator Sessions. I trust you'll enforce the death penalty 
according to the laws of the United States?
    Mr. Ogden. I will do so. And I'm pleased that I had the 
opportunity to talk with our District Attorneys about that and 
assured them of the same thing, and I'm pleased to have their 
support.
    Senator Sessions. Thank you, Mr. Chairman.
    Senator Whitehouse. Senator Cardin.
    Senator Cardin. Thank you, Mr. Chairman.
    Senator Whitehouse. For a second round.
    Senator Cardin. Just very briefly, I think that the points 
that Senator Sessions made are very valid points. The 
Constitution is not only loved and respected, it is the basis 
of the rule of law of our country. But I think it also 
incorporates the universal principles for a democratic state, 
so I think listening to what is developing internationally is 
important for us.
    I think about how many times Senators write letters to 
public officials in other countries, telling them that some of 
the things that are happening in their court system or the laws 
that they're passing are inconsistent with commitments for 
democratic states.
    So the United States is very actively involved in trying to 
establish international principles, and I think that's a good 
thing. I'm not disagreeing with that. But I think at times it 
appears to be one-sided to other countries. I think we need to 
listen to what's happening internationally, not to affect a 
court decision, because I agree with Senator Sessions on that 
issue, but to reflect as to whether the principles of our 
country are still mainstream in promoting what a democratic 
state should be doing, and the human rights agendas, and so 
many other areas.
    So I hope we're not tone-deaf to what is happening 
internationally. I think we need to be mindful of what is 
happening. I also think we need to make sure that we follow the 
principles of the rule of law of our own country, and it's up 
to the legislature, the Congress, to change those laws. I think 
we all agree on that. So I just--I thought that exchange was 
helpful and I must--I'm very confident.
    I feel a lot more confident hearing your response, and I 
know that you'll be an incredible help to Attorney General 
Holder in the evaluation of what's happened in the Department 
of Justice and setting a new course to restore the confidence 
to the American people that the Attorney General's Office is 
the attorney for the country, not for any one person, and that 
it will recruit and retain the very best legal minds on behalf 
of the American people. I wish you well on your journey. I 
thank you for including us as your partners.
    Thank you, Mr. Chairman.
    Mr. Ogden. Senator, thank you for those thoughtful 
comments.
    Senator Whitehouse. I think we are now at the conclusion of 
the hearing. I thank everybody who has attended. As a matter of 
final business, I will add into the record, without objection, 
letters of support for the nomination of David Ogden from Beth 
Brinkman, former Assistant to the Solicitor General; Bill Land 
Lee, former Assistant Attorney General of Civil Rights 
Division; Carolyn Lamb, former president of the District of 
Columbia Bar; Carter Phillips, former Assistant to the 
Solicitor General; Christine Gregwar, the Governor of the State 
of Washington and my former colleague as Attorney General of 
that State; Daniel Troy--Daniel Levin, former Acting Assistant 
Attorney General in the Office of Legal Counsel; Daniel Price, 
former Assistant to the President, Department of National 
Security Advisor; David Frederick, former Assistant to the 
Solicitor General; Duvall Patrick, the Governor of the State of 
Massachusetts and the former head of the Civil Rights Division 
of the Department of Justice; Doug Ganssler, the Attorney 
General of Senator Cardin's State of Maryland; H. Thomas Wells, 
the president of the American Bar Association; James Robinson, 
former Assistant Attorney General of the Criminal Division; 
Jamie Grellick, former Deputy Attorney General, a predecessor 
of yours; Janet Reno, former Attorney General; Joanne Harris, 
former Assistant Attorney General of the Criminal Division; 
John Bellinger, the former counsel for National Security 
Matters of the Criminal Division; Kenneth Geller, former Deputy 
Solicitor General; Larry Thompson, another predecessor, former 
Deputy Attorney General; Manis Cooney, former chief counsel of 
this Committee; Michael Horowitz, Commissioner of the United 
States Sentencing Commission; Paul Kapuccio, former Associate 
Deputy Attorney General; Peter Keisler, former Assistant 
Attorney General, former Acting Attorney General; Rachel Brand, 
former Assistant Attorney General for Legal Policy; Reginald 
Brown; Richard Taranto, former Assistant to the Solicitor 
General; Robert Hoyt, former Associate White House Counsel, 
former General Counsel to the U.S. Treasury Department; Seth 
Waxman, former Solicitor General; Stuart Gerson, former 
Assistant Attorney General in the Civil Division; Tom Miller, 
another former colleague of mine, as Attorney General of Iowa; 
Todd Stegerda, former Chief Counsel to the McCain Presidential 
campaign; Todd Zebler, former Deputy General Counsel to the 
McCain Presidential campaign; along with statements of support 
from the Federal Law Enforcement Officers Association, the 
Fraternal Order of Police; the Major Cities Police Chiefs 
Association; the National Association of Police Organizations; 
the National District Attorneys Association; the National 
Narcotics Officers Association Coalition; the National 
Sheriff's Association; the Police Executive Research Forum; the 
Community Anti-Drug Coalitions of America; the National Center 
for Missing & Exploited Children; the National Center for 
Victims of Crime; the Partnership for a Drug-Free America; the 
Anti-Defamation League; the Leadership Conference on Civil 
Rights; the National Women's Law Center, the American 
Psychological Association; the Boys & Girls Clubs of America; 
and our Judge Advocates General.
    [The letters appear as a submission for the record.]
    Senator Whitehouse. We'll be keeping the record open 
formally for a week for written questions. The Chairman urges 
members, however, to send written questions as soon as 
possible, and no later than Monday by noon if at all possible, 
so that we do not delay in moving forward on this nomination 
and getting the Deputy in place managing the Department.
    With that, I thank the witness for his presence here today. 
I thank his family and his children for their attendance.
    The hearing is adjourned.
    [Whereupon, at 12:02 p.m., the Committee was adjourned.]
    [The biographical information of David W. Ogden follows.]
    [Questions and answers and submissions for the record 
follow.]





NOMINATION OF DAVID S. KRIS, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, 
    NATIONAL SECURITY DIVISION; AND DAWN E. JOHNSEN, NOMINEE TO BE 
          ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL

                              ----------                              


                      WEDNESDAY, FEBRUARY 25, 2009

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:21 p.m., room 
SD-226, Dirksen Senate Office Building, Hon. Dianne Feinstein, 
presiding.
    Present: Senators Feinstein, Feingold, Durbin, Cardin, 
Whitehouse, Kaufman, Specter, Hatch, Sessions, Graham, and 
Cornyn.

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S SENATOR FROM 
                    THE STATE OF CALIFORNIA

    Senator Feinstein. I'm going to begin this hearing. I know 
Senator Specter is voting now--we just had a vote at 2:00--and 
is on his way. I believe he has a time problem, so if I'm in 
the middle of my opening remarks I will let him go ahead and 
then finish my remarks when he concludes.
    In today's hearing, we will hear from David Kris, who has 
been nominated to be Assistant Attorney General for the 
National Security Division, and from Dawn Johnsen, who is 
nominated to head the Office of Legal Counsel. Obviously, both 
are within the Department of Justice.
    These are both extremely important positions. The National 
Security Division is the part of the Justice Department that 
handles all national security matters. It was created by 
Congress as part of the reauthorization of the PATRIOT Act in 
2006, and it's responsible for the following: Investigating 
reports of terrorist activity, prosecuting people who threaten 
our national security, handling applications to the Foreign 
Intelligence Surveillance Act Court to conduct foreign 
intelligence surveillance, and advising the Attorney General on 
intelligence issues and national security policy matters.
    David Kris is a nominee who has both figuratively and 
literally, written the book on national security. He has spent 
11 years as a prosecutor in the Justice Department and he knows 
its national security functions well. During the Bush 
administration, he was Associate Deputy Attorney General for 
National Security, where he litigated national security cases 
and oversaw intelligence activities.
    When Congress considered merging the Department's national 
security functions under a single office, Mr. Kris was one of 
the experts consulted. He is also the co-author of the most 
widely used legal treatise in this area. His book, titled 
National Security Investigations and Prosecutions, provides a 
step-by-step analysis of all the law that governs government 
activity in response to terrorist threats. In addition to his 
expertise, he has received high marks for his commitment to the 
rule of law.
    This committee has received letters of support for the 
nomination from former officials like Larry Thompson, who was 
Deputy Attorney General during the Bush administration, and 
from David Cole, a Georgetown law professor who has written 
extensively on civil liberties. Cole described Kris as 
``genuinely committed to protecting both security and 
liberty.''
    Another important endorsement letter came from Stuart 
Baker, who was the head of the NSA under the first President 
Bush and under President Clinton. He described Kris as an 
official who knows that ``the rule of law is consistent with an 
aggressive pursuit of the national security interests of the 
United States.'' By all accounts, Kris is a highly qualified 
nominee and we look forward to hearing from him today.
    Our second nominee, Dawn Johnsen, has similarly strong 
experience. Professor Johnsen has been nominated to be the 
Assistant Attorney General for the Office of Legal Counsel. 
This office answers some of the government's most difficult 
legal questions and is responsible for providing objective 
legal advice to the entire executive branch of our government.
    Ms. Johnsen knows this office well. She worked at OLC for 5 
years during the Clinton administration and served as its 
acting head from 1997 to 1998. She knows its ins and outs and 
will be ready from day one.
    As has been well documented, the OLC underwent a troubling 
transformation during the Bush administration. It became a 
rubber stamp for some of the administration's worst abuses of 
power. This is the office that issued the torture memo in 2002, 
advising the President that interrogation techniques were not 
torture unless they inflicted pain ``equivalent in intensity to 
the pain accompanying serious physical injury, such as organ 
failure, impairment of bodily function, or even death.''
    A month later, the office wrote that the President could 
use military force against Iraq without congressional or 
international support, based in part on a new theory of 
``anticipatory self-defense.'' In 2003, Jack Goldsmith, a 
respected conservative lawyer, came in to run OLC, but he found 
the problem so widespread that he resigned in less than a year, 
saying that he was ``disgusted with the whole process.''
    Today, there are still over 35 secret OLC opinions from the 
2000 to 2005 period that deal with important national security 
issues and that the Bush administration has refused, 
consistently, to release. One of these documents, for example, 
is believed to say that the Fourth Amendment does not apply to 
military operations on United States soil.
    President Obama is well aware of these problems and he has 
chosen Dawn Johnsen to restore the office to its position as 
``the conscience of the Justice Department.'' Johnsen has 
already demonstrated that she has plans for reform. In 2004, 
she published a statement with 18 other OLC officials called 
``Principles to Guide the Office of Legal Counsel.'' The 
statement lays out historical ground rules for how OLC should 
be run. Let me read you a few of these principles:
    ``OLC's advice should be thorough and forthright. It should 
reflect all legal restraints, including the constitutional 
authorities of the courts and Congress.''
    Second, ``OLC should maintain internal systems and 
practices to help ensure that OLC's legal advice is of the 
highest possible quality and represents the best possible view 
of the law.''
    Finally, ``OLC should publicly disclose its written legal 
opinions in a timely manner, absent strong reasons for delay or 
disclosure.'' Those three things are exact quotes.
    These statements give me great confidence in Professor 
Johnsen, and I look forward to hearing more from her at the 
appropriate time about her plans today. But I want to commend 
both Ms. Johnsen and Mr. Kris for their willingness to take on 
their very critical positions.
    We are still waiting for Senator Specter. I see Senator 
Bayh, who's going to make an introduction, has arrived.
    Does any other member here wish to speak? Otherwise I will 
call on Senator Bayh.
    Senator Cornyn.
    Senator Cornyn. Madam Chairman, unfortunately I'm going to 
have to leave for a meeting with the White House counsel. I 
just wanted to say, I am pleased that we're having these 
hearings today. I'm going to be submitting questions for Ms. 
Johnsen. I have some very serious concerns about this 
nomination, and look forward to getting the answers to the 
questions. Hopefully that will help clear them up. I'll submit 
those for the record.
    Senator Feinstein. Fine.
    Senator Cornyn. Thank you very much.
    Senator Feinstein. Thank you very much.
    Senator Feinstein. Senator Hatch.
    Senator Hatch. No, that's all right.
    Senator Feinstein. OK. All right.
    Senator Bayh, welcome to the Judiciary Committee.

  PRESENTATION OF DAWN E. JOHNSEN, NOMINEE TO TO BE ASSISTANT 
ATTORNEY GENERAL OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE 
  BY HON. EVAN BAYH, A U.S. SENATOR FROM THE STATE OF INDIANA

    Senator Bayh. Thank you, Madam Chairman. It is a personal 
pleasure for me to be here. My father had the privilege of 
serving on this Committee for 18 years, and so it has a special 
place in the hearts of all members of the Bayh family. So, 
thank you for your courtesy today.
    Senator Hatch, it is good to be with you once again as 
well.
    Madam Chairman, Senator Hatch, other distinguished members 
of the Committee, thank you for this opportunity today to 
introduce an individual for whom I have great respect and 
confidence, Professor Dawn Johnsen. Professor Johnsen is an 
accomplished scholar and experienced government lawyer who is 
well-qualified to serve as Assistant Attorney General for the 
Office of Legal Counsel.
    Her experience as Acting Assistant Attorney General under 
President Clinton means she will be ready to provide the 
President and the Attorney General with outstanding legal 
advice from day one. In particular, she already understands the 
challenge of providing advice that is grounded in the law, and 
mindful of the separation of powers enshrined in our 
Constitution.
    As someone whose family suffered losses in the attacks on 
September the 11th, Professor Johnsen understands the serious 
and sobering challenges that threaten our Nation's security. 
But she also knows that we can defeat our enemies, no matter 
how determined they may be, without sacrificing our cherished 
American values and ideals.
    Professor Johnsen has also demonstrated the intellectual 
heft required of this position. She is a graduate of Yale 
College and Yale Law School--which I suppose, if you can't go 
to Indiana University, is not half bad--where she served--let 
the record show, that was a humorous aside, Madam Chairman.
    [Laughter.]
    Where she served as editor of the Yale Law Journal.
    As a professor of law at Indiana University, she has 
written extensively on constitutional law, the separation of 
powers, and legal constraints on executive power. There is no 
doubt that she has both the knowledge and expertise to help 
navigate the challenging matters of law and justice which 
confront our new President.
    One of the most important qualifications for any high-
ranking government lawyer is good judgment. Professor Johnsen 
demonstrated outstanding judgment when she married into one of 
Indiana's outstanding families. Professor Johnsen and her 
husband, John Hamilton, who is the nephew of former Congressman 
Lee Hamilton, with whom members of the Committee may be 
familiar, exemplified the best Hoosier values of family and 
community. Despite the many demands on her time, Professor 
Johnsen is a devoted mother of her two boys, Matthew and Eric, 
and teaches Sunday school at First United Methodist Church in 
Bloomington.
    I have high confidence that, if confirmed as Assistant 
Attorney General for the Office of Legal Counsel, Professor 
Johnsen will be a valuable member of the new administration and 
will provide to our Commander in Chief outstanding legal advice 
that he needs to protect and defend our country.
    Madam Chair, other members of this Committee, it is my 
distinct pleasure to present for this Committee's consideration 
Professor Dawn Johnsen.
    Senator Feinstein. Thank you very much, Senator Bayh. Your 
testimony is much appreciated, and your time as well. Thank 
you. If you would like to--I know you have a pressing calendar 
with other things. You're welcome to sit with the Committee, or 
if you have other--wish to be excused, that would be fine.
    Senator Bayh. Thank you, Madam Chairman. As much as I would 
love to stay, I have an appointment for which I am already 5 
minutes late.
    Senator Feinstein. Thank you.
    Senator Bayh. So I hope you will forgive me.
    Senator Feinstein. We will. Thank you so much.
    Senator Bayh. Thank you.
    Senator Feinstein. And if the two nominees would come to 
the center table, we will begin.
    Would you please stand to be sworn?
    [Whereupon, the witnesses were duly sworn.]
    Senator Feinstein. Thank you very much. Please be seated.
    We're joined by Senator Feingold. Senator, we're about 
ready to ask questions. Do you have an opening statement?
    Senator Feingold. I do not.
    Senator Feinstein. You do not. All right.
    I think we want to hear from each nominee first. Ms. 
Johnsen, why don't we begin with you, and then we'll go to Mr. 
Kris. Then we'll open the questions.

STATEMENT OF DAWN E. JOHNSEN, TO BE ASSISTANT ATTORNEY GENERAL, 
                    OFFICE OF LEGAL COUNSEL

    Ms. Johnsen. Thank you very much.
    If I may take a moment to introduce some family members.
    Senator Feinstein. Please.
    Ms. Johnsen. May I do that? Thank you very much, Senator.
    I have with me today--I'll try to speak fast because I have 
a very supportive, loving family. My husband, John Hamilton, 
and our sons, Matthew, age 12, and Eric, age 10; my mother, 
Carolyn Johnsen; my grandmother, Ruth Downd; my sisters, Jill 
Johnsen and Jennifer Johnsen; aunts and uncles, Edward and 
Lynnette Downd; Donella Cacciola, who's a long-time employee of 
the FBI, along with her husband Anthony; and other assorted 
relatives: Nancy Hamilton, Beverly Enjocky, Dawn Guarello, 
Joanna Downd, Marco Downd, Barbara and Sean Turner, my former 
boss at OLC, Walter Dellinger and his wife Ann, and I have many 
other good friends from law school, former colleagues, and I'll 
spare you hearing all the names. But I'm so grateful to them 
all for being here.
    Senator Feinstein. Thank you, and they are welcome. Mr. 
Dellinger is well-known to this Committee; we hold him in great 
respect. So, we thank him for being here as well.
    Please proceed.
    Ms. Johnsen. Thank you very much.
    Senator Feinstein, Ranking Member Specter, members of the 
Committee, it's a tremendous honor for me to be here today. I'd 
like to thank each of you and your staffs for your time and 
your attention to my nomination. I'd also like to thank Senator 
Evan Bayh for that generous introduction and for his great 
service to the State of Indiana, and to the United States.
    Thank you also for the opportunity to visit my family--to 
introduce to you my family. I would like to mention one person 
who could not be here, and that's my father, Don Johnsen, who 
passed away a few years ago. He worked very hard as a letter 
carrier for the U.S. Postal Service, and always a second job as 
well, to send me, and my sisters, and my brother all to 
college, and all beyond college, which was an opportunity he 
did not have. He took special pride in his service in the 
United States Navy. My father deeply loved his family and his 
country, and he would have--would have loved to see this. He's 
passed that love and patriotism on.
    In 1976, the bicentennial year of our declaration of 
independence, I entered an essay contest. The subject was: 
``What Makes America Great? '' I won a $100 savings bond, and I 
also had an opportunity to read that essay at the car place, 
4th of July, fairgrounds.
    I no longer have the essay and I've long spent the savings 
bond, but I am quite certain that I quoted Robert F. Kennedy as 
follows. It's from the poster I had hung on the bedroom wall of 
the room I shared with my sisters: ``The future does not belong 
to those who are content with today. Rather, it will belong to 
those who can blend reason, vision, and courage in a personal 
commitment to the ideals and great enterprises of American 
society. I've endeavored throughout my life to do what I can to 
serve the ideals and the great enterprises of our great 
country.
    I'm very mindful of the fact, as I sit here, that we are 
not all going to agree on all of the specifics, but I deeply 
believe that as Americans we share some bedrock commitments, 
including to respect conflicting viewpoints and understand that 
people of goodwill inevitably disagree, and that such debate 
makes us stronger and better, to protect the physical safety of 
the American people, especially today, from post-9/11 terrorist 
threats, to uphold our Constitution and our basic values, 
including our commitment to limited government that protects 
both our physical safety and fundamental liberties, and 
finally, commitment to uphold the rule of law.
    Commitment to the rule of law is my overriding passion. 
It's the imperative that the government belongs to the people 
in our system and the officials who lead the government are not 
above the law. I had the great privilege of acting on that 
imperative when I served at the Office of Legal Counsel for 5 
years, from 1993 to 1998.
    As more often--does, 9/11 tested our commitment to the rule 
of law. Though Indiana is currently my home, I was born and 
raised in New York on Long Island. At the time of the attack, 
my sister Jennifer had a view of the Twin Towers from her lower 
East Side Manhattan apartment, where she still lives. My sister 
Jill, who teaches in New York City public schools, when the 
planes hit, she had a fourth grade class in her care. I have 
many friends--dear friends and relatives who live in New York 
and Washington, DC, some of whom did lose loved ones in that 
terrible attack on our country.
    My thoughts and concerns, though first those were of course 
most powerfully of my family and friends who had suffered 
wrenching personal losses, but they are also professionally 
very much with the government lawyers who bear the tremendous 
responsibility of helping our government respond to those 
attacks, to keep our Nation safe from future attacks.
    My service at OLC gave me some special appreciation, I 
believe, for what they confronted and for the outstanding work 
of countless dedicated women and men in the years since at OLC, 
and all throughout the government. My prior service also gave 
me a feeling of special responsibility to speak up later on 
when, on several specific occasions, I believed that OLC's 
legal interpretations failed to live up to its best traditions.
    In my work as an academic, I have sought to be constructive 
and to explore the proper scope of Presidential power and the 
proper role of government lawyers. Most notably, in 2004, as 
Senator Feinstein mentioned, I brought together 19 former OLC 
lawyers and we explored OLC's best nonpartisan traditions and 
drafted what we entitled, ``Principles to Guide the Office of 
Legal Counsel.'' I have appended that same document to my 
written testimony that I've submitted to the Committee.
    During my 5 years of service, I came to understand that, 
above all, OLC must provide the President and others with 
accurate, principled legal interpretations, and that my own 
personal views on the subject were not what mattered, that OLC 
must look to the Constitution and to the laws enacted by 
Congress, to judicial and executive branch precedent, and also 
to the career professionals throughout the government who bring 
the essential experience, expertise, and judgment.
    I look forward, should the Senate confirm my appointment, 
to serving President Obama, Attorney General Holder, and the 
people of the United States in ways that will support the rule 
of law and that will protect our mission, and also will look 
forward, if confirmed, to working with all of you.
    Thank you very much.
    Senator Feinstein. Thank you very much, Ms. Johnsen.
    [The prepared statement of Ms. Johnsen appears as a 
submission for the record.]
    [The questionnaire of Ms. Johnsen follows.]




    
    Senator Feinstein. Mr. Kris.

 STATEMENT OF DAVID S. KRIS, NOMINEE TO BE ASSISTANT ATTORNEY 
              GENERAL, NATIONAL SECURITY DIVISION

    Mr. Kris. Senator, may I begin also by introducing my 
family?
    Senator Feinstein. Of course.
    Mr. Kris. Directly behind me is my wife, Jody Kris--oh. 
Excuse me. Directly behind me is my wife, Jody Kris. Directly 
behind her is my daughter Audrey. Next to my wife is my 
daughter Hannah--she's taking notes for a report to her second 
grade social studies class on this----
    Senator Feinstein. We will all be on our toes. Thank you.
    Mr. Kris. And next to her is my father, Tony Kris, who has 
traveled here from out of town. I do want to make reference to 
two people who could not be here, my mother, who passed away 
several years ago, and my stepmother, who unfortunately is 
unable to attend due to illness. Thank you.
    May I proceed?
    Senator Feinstein. Please.
    Mr. Kris. Madam Chairman, Senator Hatch, and distinguished 
members of the Committee, it's an honor to appear before you. 
I'm grateful to President Obama for nominating me, to Attorney 
General Holder for supporting me, and to the Committee for 
considering me. I also appreciate very much the members who met 
with me prior to this afternoon, including this morning.
    The National Security Division is a new, but vital, 
institution of government. To date, it has had only two 
Assistant Attorneys General, both of them, like me, originally 
career prosecutors. The most recent of these, Patrick Rowan, 
was enormously helpful during the Presidential transition 
period, and I want to take this opportunity to thank him again.
    Pat's predecessor, Ken Wainstein, is currently teaching a 
law school class with me. Ken and I agree on some things, we 
disagree on other things, but we share a common respect and 
appreciation for professionalism and serious legal argument. As 
a result, we work well together, even when we differ. In fact, 
I think our students benefit from the diversity of views that 
we present. They get more from both of us than they would from 
either of us.
    Together, Ken, Pat, and the men and women of NSD have done 
what I think is a remarkable job establishing the Division over 
the last 2 years, and I agree with many of the things that they 
have done, including NSD's basic organizational structure, its 
strong relationships with ODNI and the FISA court, and it's 
innovative enforcement of export controls, among others.
    Of course, I have some ideas of my own about how to build 
on this foundation and move the Division forward. In keeping 
with my status as a nominee and as an outsider, these ideas are 
necessarily somewhat tentative, but I wanted to share with you 
nonetheless in an effort to inform your decision about whether 
or not to confirm me.
    In the short run, if I were to be confirmed, I would hope 
and expect to focus on three procedural/structural issues and 
three substantive ones. With your permission, I'll just quickly 
lay those out.
    First, procedurally, I would like to begin by continuing to 
strengthen the connections between and among NSD's various 
components. I hope that this will generate even more 
coordinated operations and policy development within the 
Division, and also continue to foster a distinct DOJ National 
Security culture. Fundamentally, NSD exists because of 
potential synergies between its criminal lawyers and its 
intelligence lawyers, and if I were confirmed I would want to 
try to maximize those synergies.
    Second, if confirmed, I will focus on NSD's relationships 
with the intelligence community and with the National Safety 
Council, in part, by continuing to develop the intelligence 
perspective and credentials of its lawyers, including its 
prosecutors. I will also try to respond appropriately and 
quickly to constitutional oversight and maintain strong, 
cooperative relationships with this Committee and other 
committees of Congress.
    Third, I would hope to continue the very positive evolution 
of NSD's working relationship with the FBI, particularly at the 
operational level. I believe that this will help the FBI 
continue its transformation into a security service, and at the 
same time enhance protections for civil liberties.
    Now, substantively, I also anticipate three areas of focus, 
if I am confirmed. First, of course, Guantanamo Bay and the 
detainees there. NSD has already briefed its senior career 
deputy to serve as executive director of the Gitmo task force, 
and I am sure will continue to support the task force, as 
needed.
    Second, the FISA Amendments Act. This is a new statute, as 
the Committee is aware, and I do not yet know exactly how it 
functions. But I do know that it provides enormous authority to 
the government and underlies what I understand to be an 
enormously important collection program. If confirmed, I intend 
to learn in detail how it works.
    Third, and finally, the FBI's domestic operations 
guidelines. In at least two ways, I think these guidelines 
reflect positive developments. In other ways, they raise some 
questions that I would like to explore further. If confirmed, I 
will want to know how the guidelines operate at ground level so 
that I can work with the Bureau, advise the Attorney General, 
and keep this Committee fully informed.
    So again, I want to emphasize that these ideas are 
tentative, all six of them, and they will certainly yield to 
the ground truth. But they do reflect my current thinking from 
my current perspective, and I wanted to put them before you. I 
appreciate very much your holding this hearing, and I look 
forward to answering your questions.
    Thank you.
    [The prepared statement of Mr. Kris appears as a submission 
for the record.]
    [The questionnaire of Mr. Kris follows.]




    
    Senator Feinstein. Thank you very much, Mr. Kris and Ms. 
Johnsen. We'll now proceed with questions. We'll have 7-minute 
rounds, and I'll follow the early bird rule.
    Mr. Kris, let me begin with you. You mentioned Guantanamo. 
As we know, President Obama has created the working group you 
referred to. There are reportedly three categories of detainees 
at Guantanamo: (1) Those who pose no threat and are eligible 
for release; (2) those who will be charged, either in Federal 
court--court marshal, or military commission; and (3) those who 
pose a real threat to the national security, but for whom there 
is not sufficient or admissible evidence to be prosecuted.
    I'm particularly concerned about this third category, and I 
want to ask you a question about the legal authority to hold 
somebody in this category. It is my understanding that if an 
individual is found by a tribunal to be an enemy combatant, 
that the treaties, the laws of war, will permit that individual 
to be continued in custody until the conflict is over.
    Is this adequate to hold those people who are a security 
threat to this Nation?
    Mr. Kris. Thank you very much, Senator. I appreciate the 
question. There is no more difficult and important matter than 
this for the American people right now, and for the new 
administration. As you point out, the executive order 
anticipates and directs a comprehensive review, and especially 
from where I'm sitting now, of course, I don't want to prejudge 
the results of that review, and certainly, if confirmed, I 
would look forward to supporting it, as directed by the 
Attorney General.
    I agree with you about the categories of detainees that may 
exist. Of course, I haven't seen the information, so I don't 
know. And I also agree with you that I think there is authority 
to hold enemy combatants, and I'm thinking particularly of the 
Supreme Court's decision on the Hamdi case, which said exactly 
what you said, that in keeping with the authorization to use 
military force and the laws of war and traditional 
understandings of the Law of Armed Conflict, there is 
authority, at least in the circumstances described there, to 
hold enemy combatants for the duration of the conflict. The 
court obviously also mentioned the importance of due process 
review, and there's a lot of detail there. But I do agree with 
your basic point, yes.
    Senator Feinstein. Thank you very much.
    Now, a question for Mrs. Johnsen. Approximately 40 OLC 
memos that were written between 2001 and 2005 are still secret 
today. You wrote in the ``Principles to Guide the Office of 
Legal Counsel'' that OLC should publicly disclose its written 
opinions in a timely manner, absent strong reasons for delay or 
nondisclosure.
    What do you believe is a reasonable period of time for OLC 
to wait before disclosing these opinions?
    Ms. Johnsen. Thank you, Senator. The amount of time, I 
think, would vary with the opinion. I think in the normal case 
it would not need to be any longer than the time it takes for 
OLC to consult with the requesting agency to see if they have 
concerns about release of the opinion, and whatever time it 
takes to process the opinion.
    There may be other opinions, though, where there is 
classified information in the opinion that would need to be 
redacted, or that prevent the opinion from being released at 
all at that particular point in time, but with the passage of 
time, release may become appropriate. So, it would be a case-
by-case determination. The principles, as you say, call for a 
presumption in favor of disclosure, absent compelling reasons 
to the contrary. National security clearly would provide one of 
the most compelling reasons.
    Senator Feinstein. Well, if I understand what you're 
saying, it is very vague and imprecise. Would that be correct?
    Ms. Johnsen. Well, I can say a little more about what would 
help guide whether an opinion should be released or not, and 
I'd be happy to talk more about that.
    Senator Feinstein. Please.
    Ms. Johnsen. I would also say that I think it is important 
for the Office of Legal Counsel and Department of Justice 
itself to be clear about the guidelines so that Congress and 
the public know, what are the standards being applied in 
deciding whether to release opinions. But it will, by 
necessity, be a case-by-case analysis.
    One class--category of opinions about which I have 
expressed particular concern in the past, concern about the 
failure to release, if not the opinion itself, the fact of its 
existence and a description of the legal analysis involves OLC 
interpretations of Federal statutes where OLC determines not to 
comply with the statute or interprets the statute in a way for 
better--for want of a better phrase, in a way that would 
surprise Congress.'
    We are seeing a few important examples of that in the prior 
administration where, in effect, the government was claiming 
the authority not to comply with a duly enacted statute and not 
letting Congress know about that for months or years. So that's 
a category that I would say is a special category. I would say 
that Congress and the American people have a special need to 
know how the executive branch is interpreting and applying, or 
not applying, Federal statutes.
    Senator Feinstein. Do you believe that torture can ever be 
legally justified under United States or international law?
    Ms. Johnsen. No, Senator, I do not.
    Senator Feinstein. Do you believe that waterboarding is 
torture?
    Ms. Johnsen. Yes, Senator.
    Senator Feinstein. Do you believe that torture yields 
reliable information and intelligence?
    Ms. Johnsen. Senator, that is not an issue on which I have 
any expertise, and it also is not an issue that would be for me 
to say anything about in the position to which I have been 
nominated. My role would be to inform the President and the 
policymakers of the legal constraints.
    Senator Feinstein. Thank you. Thank you very much, both of 
you.
    Senator Hatch.
    Senator Hatch. Well, thank you, Madam Chairman.
    Mr. Kris, you've written, testified, and otherwise 
advocated lowering the so-called ``wall'' between traditional 
law enforcement and intelligence. You appeared before the 
Intelligence Committee, upon which both the distinguished 
Chairman and I serve, less than 2 weeks after the 9/11 
terrorist attacks in your capacity as Associate Deputy Attorney 
General, and you advocated this position.
    Now, here we are, nearly 7\1/2\ years later, and there has 
not been another terrorist attack in America. So, first, I'd 
like your brief assessment of that infamous wall. Had it come 
down, what would have been the results? What else needs to be 
done?
    Mr. Kris. Thank you very much, Senator. I think the wall is 
down. As a legal matter, it came down in November of 2002 with 
the decision of the FISA Court of Review, and then was 
reaffirmed in fact as a statutory matter by the reauthorization 
of the PATRIOT Act by Congress. So I think legally the wall is 
down.
    Senator Hatch. Do you agree with that?
    Mr. Kris. I beg your pardon?
    Senator Hatch. Do you agree with that?
    Mr. Kris. Yes, I do.
    Senator Hatch. Okay.
    Mr. Kris. I'm aware, obviously, of one decision in Oregon 
that has gone the other way, but I think the weight of 
authority in that decision is on appeal. But I think the weight 
of authority is that the wall is down.
    Institutionally, or bureaucratically, as it were, the 
National Security Division is, in a way, a reflection of the 
demise of that wall because it brings together even one 
organizational unit within the Justice Department, both the law 
enforcement officials, counterterrorism and counterespionage 
prosecutors who formerly resided in the Criminal Division, and 
intelligence lawyers who formerly resided in the Office of 
Intelligence Policies and Review.
    I think, as I mentioned in my opening, one of the first 
things that I would like to focus on is continuing to 
strengthen the internal connections between those two groups in 
order to reap the synergies that I think underlie NSD's 
creation.
    Senator Hatch. Madam Chairman----
    Senator Specter. No, you finish your time.
    Senator Hatch. I can defer.
    Senator Specter. You finish.
    Senator Hatch. Okay. Thank you.
    Well, I appreciate your answer. At the same time, you've 
coauthored the book, National Security Investigations and 
Prosecutions. Other experts in this field, some of whom have 
testified before this and other congressional committees, have 
called this work literally ``the book'' on the subject. I 
personally believe you've done an excellent job.
    Mr. Kris. Thank you. I very much appreciate that.
    Senator Hatch. But in this book you distinguish between 
national security investigations and law enforcement 
investigations. What's the difference? Why is the difference 
important? How can we reconcile lowering the wall and 
maintaining the distinction?
    Mr. Kris. Well, I think--I guess, two points I would make. 
The first, is that in a way the key insight that's associated 
with lowering the wall is that prosecution of spies and 
terrorists from other nations, security threats, is not an end 
in itself, but is another means to the end of protecting 
against those threats. It's another tool in the toolbox.
    That does not mean, however, that there is no distinction 
between, say, ordinary law enforcement against ordinary 
criminals--say, a prosecution of Bonnie and Clyde for bank 
robbery or something like that, and the use of law enforcement 
techniques against genuine national security threats, like 
spies and terrorists.
    I think the wall and the demise of the wall had to do 
really with the latter category, the ability to bring together 
all of the Justice Department's tools that can be deployed 
against these kinds of threats, the national security threats, 
but really wasn't about the use of FISA or other intelligence 
collection methods against ordinary criminals committing 
ordinary crimes. That really is, I think, distinct and resides 
still in the Criminal Division.
    Senator Hatch. Now, in Chapter 15 of your book you write 
that, ``The President has authority, under Article 2 of the 
Constitution, to conduct foreign intelligence electronic 
surveillance, including surveillance of U.S. citizens inside 
the United States without a warrant, even during peacetime, at 
least where he has probable cause that the target of 
surveillance is an agent of a foreign power.''
    Do you still believe that? How does this differ from what 
the previous administration was doing?
    Mr. Kris. Yes, I do believe it. I think that the courts--to 
the extent that the Courts of Appeals have addressed this 
question--obviously, the Supreme Court came closest to this in 
the Keith decision but did not address it head on. The lower 
courts have, to the extent they have decided it squarely, all 
decided in favor of allowing such surveillance in the absence 
of the statute. That is different from the question of whether 
a president may violate a statute. But in the absence of a 
statutory restriction, the line of cases--and you're familiar 
with this, Senator--culminating in Tron, do, I think, uphold 
the President's authority there.
    Senator Hatch. Right.
    Recently, a group of judges from around the world issued a 
report objecting to the notion that there is a ``war'' on 
terrorism, and argued ``the criminal law is the primary vehicle 
to be used to address terrorism.'' Do you agree with that?
    Mr. Kris. No, I don't think I do. I'm with the Attorney 
General. I think we are at war. I think the Law of Armed 
Conflict applies. In my answer to Senator Feinstein I referred 
to the Hamdi decision and the authority to detain, in keeping 
with the Law of War. So I don't think I agree with that 
statement, if I understand it correctly.
    Senator Hatch. The Attorney General did say, ``There is no 
question but that we are at war.'' I'm happy to have your 
testimony.
    I assume you're familiar with the system of the Foreign 
Intelligence Surveillance Court of Review. It was considered 
last month--last August, I guess, but made public about a month 
ago.
    Mr. Kris. Yes, sir.
    Senator Hatch. The court held that the Protect America Act 
of 2007, which allows warrantless foreign intelligence 
surveillance, is constitutional. Now, I wanted to note the 
court's holding: ``We hold that a foreign intelligence 
exception to the Fourth Amendment's warrant requirement exists 
when surveillance is conducted to obtain foreign intelligence 
for national security purposes and it's directed against 
foreign powers, or agents of foreign powers, recently believed 
to be located outside the United States.''
    Now, what do you believe is the significant--what is the 
significance of this decision, both for what the government has 
been doing up to this point and from what the new 
administration will be doing?
    Mr. Kris. I think the decision--and I have read it when it 
was released publicly--is significant. It does interpret the 
Protect America Act, which is the predecessor statute to the 
FISA Amendments Act, but I think much of it--much of its 
analysis would be applicable to the FISA Amendments Act.
    I will say that there are portions of the opinion that are 
redacted that I have not seen, and I would want to see those 
and understand more fully what was going on there. I hope, if I 
am confirmed, that I will have that opportunity.
    So I guess those are some of the concerns and caveats I 
have about the opinion, but I do think it's a well-written 
opinion and I do think it does stand for the proposition that 
the Protect America Act is constitutional.
    Senator Hatch. Well, Mr. Kris, I've limited myself to these 
few questions, but I'm well familiar with your work and I'm 
well familiar with what you've done. I'm going to support you 
for this position. I think you're not only capable, I think 
you're an extremely honest and extremely intelligent man. So, 
I'm just grateful that people like you are willing to come out 
and work with the administration. I think it's important. I 
think you'll be a great asset to the Attorney General, and I 
wish you well.
    Mr. Kris. Thank you very much, Senator. I greatly 
appreciate that.
    Senator Feinstein. Thank you very much, Senator Hatch.
    The Ranking Member of the Committee, Senator Specter, was 
unavoidably delayed and is here now, so I'm going to interrupt 
and give him an opportunity to make an opening statement.
    Senator Specter. Thank you very much, Madam Chairwoman. I 
congratulate Ms. Johnsen and Mr. Kris on their outstanding 
academic record, their very impressive undergraduate degrees 
and law degrees, and on their nominations here.
    I begin with you, Ms. Johnsen. I have noted in the staff 
memo which has been prepared for me that you have written, 
regarding the role of the Office of Legal Counsel, ``The courts 
under-enforce constitutional rights and the political branches 
have an obligation to fill constitutional gaps, and uphold 
rights beyond those that the court will enforce.''
    I would disagree with that. The political branch, Congress, 
has the authority to establish public policy and decide what 
the laws ought to be within constitutional bounds. But when the 
reference is made there, as it appears to be, that the Office 
of Legal Counsel is going to fill in the gaps, I have a sharp 
question, really, of disagreement. You have criticized John Yoo 
and the Bybee memo, and they have been characterized as on the 
extreme side. A number of your writings, which I'll come to in 
a moment, are about as far from the center of the other end of 
the political spectrum.
    The question that I have at the outset is, isn't it true 
that we accept the constitutional interpretation of the courts, 
really the Supreme Court or whatever other courts may interpret 
the Constitution on paramount authority and the authority of 
Congress to legislate, and perhaps to fill in constitutional 
gaps as they see it, subject to being overruled by the court.
    But it is not the rule of the Office of Legal Counsel to 
extend the Constitution beyond what the courts have said, or 
the Congress supplementing, plus what the Congress determines 
is public policy on legislation.
    Ms. Johnsen. Thank you, Senator, for that opportunity to--
to clarify what I was talking about there. And this is a 
subject that is also just in the Principles to Guide OLC. There 
are some instances in which the executive branch acts where it 
is unlikely that there will ever be a court case. When the 
Supreme Court speaks, absolutely, that decision was the law of 
the land and is binding on Office of Legal Counsel. And if I'm 
confirmed, in advising the executive branch, I will be bound 
by, and follow, certainly, the opinions of the Supreme Court.
    But as the Principles note, there are some questions where 
the courts are reluctant to decide the issue or there just 
won't be anyone with standing. The court might say it's a 
political question. In those instances, as we write in the 
Principles, the Office of Legal Counsel and the President have 
a special obligation to ensure they're acting within the law, 
including protecting individual rights and enforcing rights 
that the courts may never have the opportunity to adjudicate.
    And even if the courts do reach the question, they may do 
so--I think I wrote this in this particular article--in a way 
that's very deferential to the President's determinations 
because it's a matter of national security, for example, so 
deference is appropriate in that kind of situation. So, that's 
what I had in mind, Senator.
    Senator Specter. Well, in your writings you go pretty far 
to one end of the political spectrum. The positions you've 
taken on Pro-Choice--I'm Pro-Choice, and I agree with that 
doctrine. Some of the Supreme Court decisions don't please me, 
but that's the law, they say. But when I read in your writings 
that abortion bans go beyond the Thirteenth Amendment, which 
bans slavery, and that ``forced pregnancy requires a woman to 
provide continuous physical service to the fetus in order to 
further the State's asserted interests,'' it seems to me just, 
candidly, beyond the pale to say that that's a violation of the 
Thirteenth Amendment against slavery.
    Do you stand by that statement?
    Ms. Johnsen. Thank you, Senator, for that opportunity to 
clarify. I was, I have to say, shocked when I saw the--the 
National Review article that made certain claims about what I 
had written yesterday.
    Senator Specter. You did not write that?
    Ms. Johnsen. I have never--I did write the part that you 
quoted, absolutely. I have never argued that there's a 
Thirteenth Amendment violation when the government restricts 
abortion. That--I was shocked when I saw that, and it took me a 
while to search and find what they were referring to. They made 
other claims that were clearly false.
    Here, they--I did write a brief 20 years ago, and footnote 
23, I found, makes a suggestion that there may be an analogy 
between--not what this article said, pregnancy, which I've been 
blessed with twice and have two wonderful sons, but forced 
childbirth.
    This is a brief that I filed arguing that the right to 
privacy protects the right of women and their families to make 
these choices, and that Rowe v. Wade should be upheld. This was 
in 1989. It made no Thirteenth Amendment argument, and I will 
say categorically I do not believe the Thirteenth Amendment is 
relevant at all. It was a straight Fourteenth Amendment 
argument.
    Senator Specter. Well, my question was whether you wrote 
that, and I have listened to your answer and I do not 
understand it. But I'll take a look at footnote 23. I don't 
have a whole lot of time here.
    You have written that the nomination of Thomas, Roberts, 
and Aleto is ``a stealth attempt to radically remake 
constitutional law.'' Those nominees come with the Presidential 
prerogative. The nominations by President Obama, well within 
his range, could be said to be at the other end of the 
spectrum. Not that I disagree with him. I may be closer to his 
end of the--well, I won't comment about that.
    [Laughter.]
    Strike that. I shouldn't venture into that field when I'm 
questioning you. I shouldn't make any admissions, so to speak.
    But let me come to one final question for you, Ms. Johnsen. 
That is, in your notes you have suggested that Roberts and 
Aleto may have violated ethical standards in their hearing, 
stating in your notes for a speech, ``Remember: In Roberts and 
Aleto hearings, took to new level, worse than not answering, 
suggested violations.''
    Do you have any evidentiary base for saying that Roberts 
and Aleto were guilty of ethical violations?
    Ms. Johnsen. Senator, I have a vague recollection. I think 
what you're referring to is a blog post that I wrote about--I'm 
very happy to take a look at it, but I am quite certain that I 
did not accuse them of an ethical violation. I think what I 
said was, they suggested that by giving more specificity in 
their answers, they themselves might have violated an ethics 
restriction. And I was pointing out----
    Senator Specter. They said they may have violated an ethics 
restriction?
    Ms. Johnsen. That they--I probably shouldn't say too much 
because I'm not sure exactly what you're referring to. But my 
recollection is, I did not accuse them of violating any ethics 
restriction, and I certainly do not believe they did.
    Senator Specter. Would you----
    Ms. Johnsen. They--excuse me.
    Senator Specter. Go ahead. I don't want to interrupt you.
    Ms. Johnsen. Yeah. I believe what I--what they--what was at 
issue was, there was lots of back-and-forth about whether it 
would be inappropriate and somehow an ethics violation for a 
nominee to answer questions at a certain degree of specificity, 
and I was urging more transparency and views.
    I was arguing that they did have the ability, certainly not 
to say how they would decide cases, but to talk about their 
legal views and judicial philosophies. I was saying, if we now 
say that it's some ethics violation and wrong for a nominee to 
talk about their legal views on particular matters, how about 
all the nominees that came before that did? I believe that was 
my essential point in that blog posting.
    Senator Specter. Well, let me conclude by asking you to 
take a look at these notes.
    Ms. Johnsen. Yes, I will.
    Senator Specter. And also the Thirteenth Amendment slavery 
issue.
    Ms. Johnsen. Yes.
    Senator Specter. And be more specific, with more time to 
prepare, in your response. I think I'm within my opening and 
first round. I only have a couple more questions.
    But rhetorically, you show substantial evidence of your Phi 
Beta Kappa key, which I do not see you wearing, or your Yale 
Law Journal credentials, having been an officer of the Journal, 
which are high merits. Now a Haverford grad and Harvard law 
grad. Just a couple of questions.
    Mr. Kris. Yes, sir.
    Senator Specter. We have had long debates here. Many that 
I've had with the Chairman of the--now-Chairman of the 
Intelligence Committee about the range of the Foreign 
Intelligence Surveillance Act and Article 2 of the Commander in 
Chief power. We've gone around and around on that subject.
    Are you willing to give an opinion as to whether 
warrantless wire tapping, which violates the mandate of the 
Foreign Intelligence Surveillance Act, is saved under 
Presidential authority by his powers as Commander in Chief 
under Article 2?
    Mr. Kris. Well, Senator, I remember testifying before you 
on the constitutionality of the TSP some time ago, and in that 
testimony I think I said I agreed with you, that I was 
effectively agnostic on the constitutionality of the TSP 
because it didn't have----
    Senator Specter. You were what? You agreed with me?
    Mr. Kris. Agnostic. Yes. I think I agreed with you.
    Senator Specter. You were agnostic?
    Mr. Kris. And I said I couldn't--I could not evaluate the--
--
    Senator Specter. Could not?
    Mr. Kris. Could not evaluate the constitutionality of the 
TSP without the facts. And I think it's a fact-intensive 
question.
    Now, as I understand FISA, especially after the FISA 
Amendments Act and the new version of the exclusivity 
provision, it represents a clear statement from Congress that 
the President may not violate the statute, and is an assertion 
of congressional power against the President's Article 2 
constitutional authority.
    That places any effort by the President to violate FISA in 
the third category, in Justice Jackson's famous three-part 
analysis from the Steel Seizure case. There, his power is at 
the lowest ebb, as you know. As far as I am aware--I--I do not 
claim to be a constitutional scholar. But as far as I am aware, 
the Supreme Court has never upheld an assertion of Commander in 
Chief power in that third category. It doesn't mean it's the 
null set. It doesn't mean there's no content to that third 
category. There are situations where the President may 
disregard a statute.
    Senator Specter. Senator Feinstein and I claim to be 
constitutional scholars, by the way.
    Mr. Kris. Well, I'm happy to defer to you.
    Senator Specter. And when you say it's fact-intensive, I'll 
accept that answer.
    Mr. Kris. Very well.
    Senator Specter. You may be read into it soon, so maybe 
you'll be in a better place to comment, if you're confirmed of 
course.
    Mr. Kris. Right. I'm hopeful.
    Senator Specter. And I would suggest that every effort be 
made to get the Supreme Court to decide this question. The 
Detroit Federal judge said it was unconstitutional, the 
warrantless wire tapping. The Sixth Circuit ducked it on 
standing grounds, which could just have easily have gone the 
other way. Now, the Supreme Court denied cert. They really 
ought to lend some clarity to what Senator Feinstein and I have 
been battling with on this issue for about 4 years now.
    We'll submit some other questions in writing, with 
particular emphasis on the immunity issue for the telephone 
companies and what you think ought to be done as that case is 
pending.
    Mr. Kris. Yes, sir.
    Senator Specter. Thank you very much, Madam Chairwoman, for 
letting me tack my time.
    Senator Feinstein. Well, you're very, very welcome. And I'd 
like to continue this on the second round, but Senator Feingold 
has been waiting. You are up next, Senator.
    Senator Feingold. I thank the Chair.
    Ms. Johnsen, thank you for meeting with me this morning. I 
want to congratulate you on your nomination. You are 
extraordinarily well-qualified for this position and I'm very 
glad about that, because you've got a big job ahead of you. The 
reputation of the OLC suffered greatly during the last 
administration. It put itself at the service of political 
masters and failed in its most important duty, to provide, as 
you have put it, an ``accurate and honest appraisal of 
applicable law.''
    I want to commend you for the constructive effort that you 
undertook after the torture memo became public, not only to 
criticize the reasoning of that particular memo, but to ask how 
such a memo could have been written, and carefully consider 
what needed to be done to make sure that such a devastating 
mistake would not happen again.
    When you set out to develop the Principles to Guide the 
Office of Legal Counsel back in 2004, I don't know if you had 
in the back of your mind the thought that you might someday 
have the opportunity to put those principles in place. But now 
you do, and I think OLC and the American people will benefit 
greatly from your effort.
    Several of the principles you laid out in 2004 underline 
the importance of transparency, of making the opinions of the 
OLC public, and of disclosing to Congress whenever the office 
reaches the conclusion that a statute should not, or cannot, be 
enforced, as you alluded to earlier.
    Recognizing that there are certainly some situations where 
secrecy is warranted, can you explain why that transparency is 
so crucial?
    Ms. Johnsen. Yes. Thank you, Senator. Transparency, 
absolutely, is critical, and especially in the category of 
opinions you've described, where the executive branch is 
interpreting how, and whether, in some cases, it will comply 
with Federal statutes. If, on the other hand, as has happened 
on rare occasion, but important occasion, the executive branch 
acts contrary to statutes in secret without notifying even 
Congress, let alone the American people, that, I believe, goes 
right to the heart of what makes our great constitutional 
democracy work.
    In this system, we as Americans are all proud of the fact 
that the government is responsive to us and we--we, the people, 
are--are the government through our representatives in 
Congress. If Congress does not know that the executive branch 
is either not enforcing a statute or is interpreting it in a 
way that would be shocking to Congress, obviously Congress 
can't do its job. It can't decide whether it needs to enact new 
legislation, it can't do appropriate oversight of the executive 
branch.
    Senator Feingold, you--I mean, you know all this and have 
spoken eloquently about this, and I thank you for--for that 
leadership. So for that category of cases, I do think it is 
imperative that there be immediately notification to Congress.
    Senator Feingold. Thank you. I find it somewhat ironic that 
there are commentators and critics out there who oppose your 
nomination because they feel you have a political agenda and 
will seek to put the imprimatur of OLC on your personal view of 
the law. Those critics were awfully quiet over the last 8 years 
when that's exactly what happened. It seems to me your 
principles are designed to prevent that from happening. Am I 
right? Can you explain how they'll do that?
    Ms. Johnsen. Yes, Senator. That was the fundamental goal 
behind the principles. And frankly, my work as an academic over 
the last year--8 years, a central theme has been to help 
develop proper standards and processes for the government, and 
government lawyers in particular, to enforce the rule of law, 
to ensure that individuals at the Office of Legal Counsel or 
elsewhere could not promote their own personal views or pursue 
particular outcomes at the expense of the rule of law.
    And I would also point out that the principles reflect the 
best practices of OLC. The 19 of us didn't just come up with, 
you know, what's our ideal in the abstract. We looked to the 
best principles that governed Republican and Democratic 
administrations alike. When I was at OLC for 5 years in the 
1990s, I was very pleased at the quality of opinions issued 
under many prior Republican heads--Ted Olson--tremendous 
reputation for living according to those principles. And so 
this is not a partisan issue at all and one that I'm very 
pleased the principles have received praise from Republicans 
and Democrats alike.
    Senator Feingold. Thank you, Ms. Johnsen. I have limited 
time, but I do appreciate your answers.
    Mr. Kris, congratulations to you as well. I do need to say 
on the record, though, that I am concerned about the exchange 
you had with Senator Specter. When it comes to Category 3 under 
the Steel Seizure case, I do not accept the characterization 
that the inquiry is fact-intensive, if we know the statute was 
violated. That is what I believe the question was--if what the 
President is doing is contrary to the statute. I don't think 
the question is whether it's fact-intensive. Whether it 
violates the statute, I think, maybe fact-intensive, but if the 
conduct violates the statute, the catagory 3 analysis is not.
    But if we leave that room there, I am concerned that this 
undercuts the very core of Justice Jackson's test, which you 
correctly pointed out has never been ruled upon in favor of the 
executive government. So, this isn't so much about you, but 
about this ongoing debate that is so critical to all these 
issues. It's one of the most central issues in the future of 
our constitutional history, so I simply want to put that on the 
record.
    We had an opportunity earlier today to discuss, in a 
classified setting, specific concerns I have about how the FISA 
Amendment Act has been implemented. Without discussing those 
specifics in an open hearing, do you agree that there are 
serious problems that need to be corrected?
    Mr. Kris. Senator, I do appreciate very much the meeting we 
had this morning. You raised a number of concerns that I, as an 
outsider, had not appreciated. You certainly got my attention. 
I have been thinking about it since we met. If it's even 
possible, you increased my desire, if I were to be confirmed, 
to get to the bottom of the FISA Amendments Act. I hope, if I 
am confirmed, that I can take advantage of your learning and 
that of others on the Committee, and the Intelligence 
Committee, to see how best to make any necessary improvements.
    Senator Feingold. I hope that you'll work with me to 
develop modifications to the statute that would potentially 
address these problems. I realize you need to----
    Mr. Kris. I will----
    Senator Feingold [continued]. Get all that detail first.
    Mr. Kris. Senator, I will look forward to working with you, 
very much.
    Senator Feingold. Thank you.
    We also had an opportunity to talk about important 
information concerning the PATRIOT Act that I believe should be 
declassified. Do you agree that this information is important 
to the public debate on the reauthorization of these 
authorities, and will you consider the declassification I have 
proposed?
    Mr. Kris. Yes, I will certainly take a look at that, if I 
am fortunate enough to be confirmed. Yes.
    Senator Feingold. Thank you. DNI Blair stressed to the 
intelligence community the importance of checks on the 
government's authority to collect and disseminate personal 
information on Americans, even when it's available online. He 
said, ``It is one thing for a private company to have detailed 
private information. It is another for the U.S. Government, 
with all its power and authority, to have the same 
information.''
    Do you agree with the DNI? If so, do you think we may need 
new statutes and regulations to ensure that personal 
information that people post online or give to private 
companies does not end up being collected and stored by the 
U.S. Government?
    Mr. Kris. If I understand it correctly, I think I do agree 
with the DNI, as a policy matter, if not a legal one, the 
government having information may very well be different. So I 
think it is important to think about that issue and I hope to 
have an opportunity to do so, if I am confirmed, yes.
    Senator Feingold. Thank you so much. I am over my time.
    I thank the Chair.
    Senator Feinstein. Senator Sessions, you are up next.
    Senator Sessions. Thank you, Madam Chairman.
    Ms. Johnsen, with regard to torture, you were asked about 
that, and is that illegal. Of course, it is. Would you explain, 
simply, the most basic reason that torture is illegal?
    Ms. Johnsen. Most simple, is that the Congress of the 
United States has said that it is--it is a crime.
    Senator Sessions. Right. And it defined torture, did it 
not?
    Ms. Johnsen. Yes, it did.
    Senator Sessions. And does it use the words that it 
prohibits the infliction of severe physical or mental pain, or 
something, on someone?
    Ms. Johnsen. That sounds correct.
    Senator Sessions. Is that basically correct?
    Ms. Johnsen. I was thinking, was it severe, serious? But 
that sounds----
    Senator Sessions. Well, that's the reason I----
    Ms. Johnsen. I'm sure you're right.
    Senator Sessions. That's the reason I think that--and our 
colleagues here, Democratic and Republican, voted for that----
    Ms. Johnsen. Yes.
    Senator Sessions [continued]. Legislation----
    Ms. Johnsen. Yes.
    Senator Sessions [continued]. Before I got to the Senate. 
But I would just note that Attorney General Mukasey declined to 
answer the question in the fashion you did because he had not 
been informed on explicitly how waterboarding was carried out, 
and that he had not researched the law, and he thought he 
should do that before he made an opinion. I'd just share that 
with you.
    With regard to Mr. Goldsmith and his leaving the 
Department, he raised a significant issue. This is so 
important, and I know he wrestled with it. He said he--the fact 
was that a mere 9 months after he'd been in office, he had 
reversed and rescinded more OLC opinions than ``any of my 
predecessors.''
    Now, he was selected by Attorney General Ashcroft. He was 
asked to review these matters, and he reversed a number of 
them. He went on to say, ``Many of the men and women who were 
asked to act on the edges of the law have lost faith in me. 
What else might I withdraw, and when? In light of all that I 
had been through and done, I did not see how I could get their 
faith back, and so I quit.''
    He also goes on to say that every day--he talks about the 
difficulties agents have trying to protect this country in very 
hostile environments. He says, ``Every day they and their 
clients are exposed to a buzz-saw of contradictory commands: 
Stay within the confines of the law, even if the law is 
maddeningly vague, or you will be investigated and severely 
punished; but also be proactive and aggressive and imaginative, 
and push the law to its limit, don't be cautious, prevent other 
attacks at all costs, and you will also be investigated and 
punished.'' He goes on to say that he felt his actions had 
contributed to a problem, and goes on.
    But do you see the tension and the importance of easy 
decisions made in the OLC that could have ramifications on 
great men and women whose lives are at risk this very day, 
trying to preserve and protect this country and the security of 
Americans?
    Ms. Johnsen. Yes, Senator, I certainly agree with 
everything you're saying. Yes. I have no disagreement. I think 
those men and women deserve/need clear legal guidance. And Jack 
Oldsmith came to OLC at a very difficult time. I think one 
thing that should be done, is what's being done now, taking a 
hard look at these incredibly difficult, important questions 
ahead of time, as President Obama has now directed.
    Senator Sessions. Well, I think that's true. And I think 
Mr. Yoo was basically asked something he probably shouldn't 
have been asked, which was, how much power does the executive 
branch have? Attorney General Mukasey wisely said, in the same 
position you're sitting, that not only was it a mistake, it was 
unnecessary. I think he said, ``It was not only a mistake, but 
worse, it was unnecessary.'' So he made a mistake, I think, in 
trying to anticipate non-fact situations and by making broad 
opinions about it.
    Ms. Johnsen. I agree with that.
    Senator Sessions. That was withdrawn as an opinion.
    With regard to the question about Justice Roberts and Alito 
and Thomas and the statement Senator, I believe, Specter asked 
you about, those nominees being ``a stealth attempt to 
radically remake constitutional law,'' is that your--was that 
your statement, and do you stand by that statement?
    Ms. Johnsen. Yeah. I'm sorry, Senator, I do not recall that 
precise statement.
    Senator Sessions. Did you counsel and advocate the 
opposition of Justices Roberts and Alito to the court?
    Ms. Johnsen. I was asked some specific questions by Senate 
staffers for, I think, a couple of Senators on issues of 
Presidential power, to help give them guidance to inform their 
questioning of those nominees.
    Senator Sessions. Did you take a position or advocate that 
they be rejected as ``being a stealth attempt to remake 
radically constitutional law'' ?
    Ms. Johnsen. I remember clearly that I spoke about concerns 
I had about Justice Alito and positions he had taken. I cannot 
recall doing the same with Chief Justice Roberts.
    Senator Sessions. Well, I would just say that I think that 
Roberts and Alito represent two of the finest exponents of a 
classical interpretation of law, a classical view of the role 
of a judge, I have ever seen, and it troubles me that you would 
think that they wouldn't be--that they would be somehow setting 
about to radically remake the Constitution.
    Ms. Johnsen. Senator, if I may respond, briefly. My chief 
point, and I know a few blog posts and at least one Law Review 
article, was arguing that it was appropriate for both the 
President and the Senate to inquire into the legal views and 
judicial philosophy of judicial nominees. That was my--my 
essential point. And I was concerned at the time that----
    Senator Sessions. One of your----
    Ms. Johnsen. Yes?
    Senator Sessions. You used the word ``ideology'' and say 
ideology is significant. But really, you used philosophy then. 
I think that's a better word.
    Ms. Johnsen. I do, too.
    Senator Sessions. I think Justices Alito and Roberts have 
firm classical judicial philosophies----
    Ms. Johnsen. Yes.
    Senator Sessions [continued]. That would really trouble me 
if somebody thought they were unfit for the bench----
    Ms. Johnsen. Yes.
    Senator Sessions [continued]. Or somehow set about to 
radically remake the Constitution. It's the activists that are 
remaking the Constitution, not the classical judicial jurists.
    Ms. Johnsen. Senator, I actually remember writing that we 
should just banish the word ``ideology'' from our vocabularies 
because it's thrown around from all sides, and talk in terms of 
legal views and judicial philosophy, because ideology has 
different meanings and is usually used with negative 
connotations. I urge dialog about what are precisely the 
standards and appropriate kinds of questions to be asked. That 
was my main concern.
    Senator Sessions. Well, it's such an important position 
that you're seeking. You do have experience in the office, and 
you have also been an activist, blogging and advocating, and 
testifying, and making speeches that are, I think, as Senator 
Specter suggested, on perhaps the other side politically, an 
activist position.
    So in this office of Office of Legal Counsel, it's an 
extremely important position. Do you understand that it is your 
commitment to serve the law and not to be an advocate for 
progressive ideas, but to faithfully and dutifully submit 
yourself to the rule of law and carry out your office in that 
fashion?
    Ms. Johnsen. Yes, Senator, I do. Thank you. I think that is 
the most important question in thinking about this, and 
something that I did while I was there for 5 years, including 
as the acting head of the office. I'd respectfully ask that you 
look at the letters of support of people who worked with me 
while I was in that capacity, and something since I have 
written and spoken about extensively, the importance of that 
office promoting a neutral, principled view of the law.
    Senator Sessions. Thank you.
    Senator Feinstein. Thank you very much, Senator Sessions.
    The order is: Senators Kaufman, Whitehouse, and Cardin.
    Senator Kaufman.
    Senator Kaufman. Thank you, Chairman.
    Professor Johnsen, Mr. Kris, I want to thank you for taking 
on this responsibility and this service. I know it's daunting, 
but I think it's very rewarding. I think we're very pleased 
that you're considering doing this.
    Professor Johnsen, what do you think the Attorney General 
Eric Holder should do to ensure--you've been there, you know--
to ensure the independence of the OLC and its own ability to 
exercise a legal check on claims of executive power without a 
legal basis?
    Ms. Johnsen. I would say, adopt some version of the 
principles that I helped draft with the former--19 former OLC 
lawyers, and have a comprehensive set of principles. And I 
would say, also, to have regular contact with OLC and regular 
meetings, to be informed about what the office is doing in 
addition to following the principles.
    Senator Kaufman. Well, in that regard, what do you believe 
should happen when you have a disagreement with a White House 
counsel and the President's chief of staff, if they strongly 
disagree with your legal conclusions? How do you think that 
should be handled?
    Ms. Johnsen. I think the answer to that is clear, and 
traditionally and legally absolutely clear, that the--it is the 
role of the Department of Justice to issue binding legal 
interpretations, and that authority--that responsibility has 
been delegated to the Office of Legal Counsel. So, that is not 
for the counsel to the President. Many of the issues decided at 
OLC do come from the counsel to the President, but it is OLC 
that issues the authoritative ruling.
    Senator Kaufman. To follow up on some of Senator Sessions' 
questions, can you set examples from your prior service at OLC 
that demonstrates your ability to provide sound legal advice 
that's not outcome driven?
    Ms. Johnsen. Yes. Thank you, Senator. In the--and it came 
up all the time. We did follow the principles, and it wasn't 
any question that we would follow what the Constitution and 
relevant statutory provisions dictated. One particular example 
that comes to mind is an opinion--actually, two opinions I 
signed, where there was--there were some meritorious claims of 
racial discrimination against black farmers, where the 
Department of Agriculture, and the administration generally, 
wanted to settle these--these otherwise meritorious claims.
    But I signed a pair of opinions that said that they did not 
have the authority to do that because the Statute of 
Limitations had run, and Congress--only Congress could 
authorize the expenditure of money in that kind of situation. 
That had a happy ending because Congress subsequently enacted a 
statute that--that allowed for--for that settlement, as one 
example.
    Senator Kaufman. Can you talk a little bit about 
Presidential signing statements? You have written that: ``The 
President should refuse to enforce a statement he believes 
unconstitutional only when he is specifically situated to 
protect important constitutional norms without undermining the 
integrity of the lawmaking process.''
    Can you give the Committee a better sense of when you think 
it's appropriate for the President not to enforce the statute, 
or not to enforce part of a statute?
    Ms. Johnsen. Yes, Senator. I've written several things and 
thought extensively about both the issue of signing statements 
and non-enforcement of statutes. I come out pretty much where 
the executive branch has been and the tradition has been, going 
back to Thomas Jefferson. That is that I've been very critical 
of some instances where I believed that Presidents have 
improperly refused to comply with statutes and have issued 
signing statements inappropriately, and abused signing 
statements, but that there are rare circumstances where it is 
appropriate--and as I said, back to Thomas Jefferson--where a 
President--you know, short answer is, where a President clear--
thinks that a provision of law is clearly unconstitutional and 
it actually is clearly unconstitutional and Supreme Court 
precedent backs that up, if there is such precedent, or the 
text of the Constitution itself, there may be rare instances 
like that where the President's duty to take care that the laws 
are faithfully executed means he enforces the Constitution over 
the statute. In those situations he must go to Congress, let 
Congress know, try to amend and fix the statute.
    Ideally, this would never come up because Congress and the 
President would work together beforehand during the process of 
evaluating bills for constitutional defects and the problem 
will be fixed before the bill lands on the President's desk.
    Senator Kaufman. You talked in earlier questioning about 
the power of the OLC. Can you see a situation where the OLC 
would ever impose legal limits on Presidential power that a 
court would not require?
    Ms. Johnsen. I'm sorry, Senator. Could you say that again?
    Senator Kaufman. Could you see a situation where the OLC 
would ever impose legal limits on Presidential power that a 
court would not require?
    Ms. Johnsen. Yes. And that actually is addressed in the 
Principles, too, because there are situations where a court 
would find the issue to be unjusticeable, or nobody would have 
standing to challenge. In those situations, OLC's obligation is 
just as strong, and you might even say stronger, to inform the 
President of what the law requires. The goal is to tell the 
President what the rule of law requires. I think one way of 
saying it is not what he can get away with, because a court 
wouldn't order him to do otherwise.
    Senator Kaufman. Okay. Thank you very much.
    Senator Feinstein. Thank you, Senator Kaufman.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Madam Chair, and thank you 
to both of our witnesses for embarking on their upcoming 
experiences in public service. It promises to be extremely 
interesting and challenging for both of you, and I appreciate 
that you've been willing to put yourself into these roles.
    Mr. Kris, as you will recall, we've spoken in classified 
session about two matters that I consider to be of sufficiently 
grave concern to merit the attention of the Attorney General, 
and perhaps even the President. I want your assurance here, now 
that we're on the record, that you will address yourself to 
those two matters expeditiously so that they can benefit from 
your legal analysis on them, if you are confirmed.
    Mr. Kris. Senator, yes, you have my assurance on both 
matters. Absolutely.
    Senator Whitehouse. Perfect. I wish you well. You have much 
work ahead of you, and you have my confidence and my support.
    Mr. Kris. Thank you.
    Senator Whitehouse. Ms. Johnsen, you actually probably have 
the hardest job of all, based on what has become of OLC in 
recent years. I'm one of its most--have been one of its most 
ardent critics. I've described it as Dick Cheney's ``Little 
Shop of Legal Horrors.'' And if you look back at some of the 
work that has been done, as we discussed when I had the chance 
to speak with you in my office, it runs the gamut from 
decisions that I think are just wholly flawed and are written 
at what I've also publicly described as a ``fire-the-
associate'' level of legal research and responsibility, to 
otherwise legitimate opinions into which specific little, you 
might call them like a climber climbs a mountain, he hammers a 
little piton into the rock to hold himself up as he climbs.
    They're assaulted with these little ideological pitons that 
later can be looked back at to say, well, in a previous 
decision we said this, so now we can do this, sort of like 
building an ideological ladder into the future. And I'm sure 
there are some that are wholly legitimate and have not been 
assaulted with those little ideological tidbits for later use.
    And I think that whole question requires a fairly thorough 
review of where we've been. Some of these opinions have already 
been withdrawn and thrown out already. What is your view on 
what procedure would be appropriate for the office to undertake 
to go back and see what needs to be made right in these 
opinions?
    Ms. Johnsen. Thank you, Senator. That is--that's an 
important, and I think difficult, question. I do want to say 
that, as I'm listening, the thing that goes through my mind is 
there are many brilliant, principled career lawyers at OLC who 
have written many excellent opinions in the last 
administration. We talk about the very important category of 
opinions about which I've expressed concern, and I know you've 
been a leader in--in expressing concern.
    Part of the problem is, many of these opinions haven't been 
made public, so we're not sure how many we're talking about. I 
haven't had access, yet, to them. But I do want to make the 
point that it's a relatively small number of the dozens and 
dozens of noncontroversial, routine opinions the office issues. 
I have actually worked with some of the very senior career 
lawyers there and have--have great confidence in them.
    But looking at that very important category of opinions 
that deal with----
    Senator Whitehouse. And it's not that small. I mean, when I 
went over to the old Executive Office building to read the 
super-classified opinions that related to the warrantless wire 
tapping, there was a stack----
    Ms. Johnsen. Yes.
    Senator Whitehouse [continued]. This high.
    Ms. Johnsen. Yes.
    Senator Whitehouse. And that's just one topic. And then 
there are a whole other bunch that relate to Article 2 
authority, and there are a whole other bunch that relate to 
torture and interrogations.
    Ms. Johnsen. Yes.
    Senator Whitehouse. I think, you know, when we talk about a 
small number, that may be relevant to the library of work that 
OLC did in this period. But just as a body of work itself, it's 
a pretty considerable--it's not an afternoon's read, by any 
stretch of the imagination.
    Ms. Johnsen. Uh-huh. Right. Right. So, yeah. Maybe I should 
have said relatively small number of areas, but hugely 
important. And as I've said, I haven't had the opportunity--and 
I hope I will--to see--to see those classified nonpublic 
opinions.
    With regard to those, I do think it's critical to start 
with the ones that may have ongoing application, because an OLC 
opinion doesn't go out of effect in any way at the end of an 
administration. It continues to inform the actions of executive 
branch officers and employees, as you well know.
    So, given the quantity that you're--you're describing, you 
know, I think it's going to be kind of a triage kind of thing, 
where you--the office will need to start with the ones that are 
actually still in effect and guiding ongoing matters, and--and 
then after that I would say those that are relevant to new 
questions that come to OLC from the counsel to the President, 
or the Attorney General, the CIA, Department of Defense, from 
wherever, and so in the normal course, other opinions and the 
reasoning, even if the actual bottom line is no longer relevant 
to ongoing activity, some you describe the reasoning may need 
to be recalibrated.
    Senator Whitehouse. Let me jump in and make my point a 
little bit more----
    Ms. Johnsen. Yes.
    Senator Whitehouse [continued]. A little bit more clearly.
    There's obviously a certain amount of kind of back-and-
forth between administrations that relates to legal philosophy. 
In my view, this strayed well outside the bounds of that. This 
was an effort to, for want of a better word, corrupt the office 
so that it would do what it was told rather than provide legal 
advice that was dispassionate and honest.
    And I think it's important that there be some credibility 
about this review that marks this as something different, 
because otherwise we'll end up with a situation in which 
somebody comes back to do this again, and the frame that people 
put on this, and the argument that is made in public, is, oh, 
well, you know, when the Republicans were in charge they had 
one way of looking at the world, one philosophy, and then the 
Democrats came and they took their liberal philosophy and they 
made it different, and we can kind of legitimately go back and 
forth between those two theories. This isn't that, and I think 
it's important that there be a benchmark of some kind.
    So, I would encourage you to look to either veterans of the 
office of both parties who have great loyalty and great 
ability, or, you know, deans and leading scholars to 
participate in this, not only to lighten the load on your 
staff, which have all the ongoing work to do in addition to the 
look-back, but also to provide that additional element of 
credibility and of professional credence so that nobody can 
come back later on and say, oh, that's just one team, and then 
the other team. Because this really was different. This was 
something that was out of bounds, and badly out of bounds.
    Ms. Johnsen. Thank you, Senator, for those suggestions. It 
reminds me, when we did meet and talk privately, we talked also 
about the fact, if you can make more of these opinions public, 
the leading scholars will weigh in in the articles and speeches 
and such. And we've seen----
    Senator Whitehouse. I'm over my time, so----
    Ms. Johnsen. Oh, I'm sorry.
    Senator Whitehouse. So let me stop there.
    Ms. Johnsen. Yes. Yes.
    Senator Whitehouse. But in a second round, perhaps, we'll 
go to classification.
    Senator Feinstein. In a second round, for sure. Thank you, 
Senator Whitehouse.
    You're up next, Senator Graham.
    Senator Graham. Thank you, Senator Feinstein.
    To pick up on the point about philosophy, it is obvious to 
me that you and I probably have different political 
philosophies, and that is Okay. It seems like you are a very 
experienced lawyer, academically gifted, and elections have 
consequence, and I expect the administration to pick people 
more in line with their philosophy than I would have chosen for 
them.
    But I think what Senator Whitehouse is saying is that one 
thing that we want to make sure of is that the law has some 
meaning beyond politics. And it is, in theory, the last bastion 
where 50-plus-one--you know, the thing I like most about the 
law is that even the most unpopular among us will have their 
day in court. We need to preserve that and not overly 
politicize it. And I think when you look back in this past 
administration--and I am sure others--there has definitely been 
some of that going on.
    Now, I want to look forward because I think your shop in 
the Justice Department, along with the White House Counsel and 
the Department of Defense, are going to have to make some 
really tough decisions here. I support closing Guantanamo Bay, 
not because I think it is a place where people are being 
tortured; I think it is a chance to start over. And it would 
probably do the country some good to start over when it comes 
to detention policy, and no better way to start over than 
changing the location.
    But having said that, once you close Guantanamo Bay, you 
have to decide where you put these prisoners and how they will 
be disposed of. And we have talked in my office--Ms. Johnsen, 
we have talked about sort of the framework that I have in mind, 
and I would just like to ask you a few questions in line with 
what we talked about privately.
    Do you agree with the proposition that when Congress 
passed--I guess it is the Military Commissions Act, we 
designated certain organizations ``enemy combatants.'' If you 
are a member of this organization, you are no longer just a 
common criminal, you are basically an unlawful enemy combatant 
at war with the United States.
    Do you accept that proposition as being legitimate?
    Ms. Johnsen. Senator, I want to be careful in my answer. I 
would say generally I do, but I am reluctant to give a blanket 
yes, not knowing the particular legal question.
    Senator Graham. Well, do you think people who are members 
of al-Qaeda are enemy combatants?
    Ms. Johnsen. Yes, there is no question.
    Senator Graham. OK, and that we are at war with people like 
that.
    Ms. Johnsen. Yes, we are. Congress made that clear.
    Senator Graham. Right, Okay. That was my fault. And that is 
important to me because if you view this process through 
criminal law, you have got a problem. Would you agree with me 
that under criminal law there is no process to detain someone 
indefinitely without trial?
    Ms. Johnsen. Yes, Senator.
    Senator Graham. Nor should there be.
    Ms. Johnsen. Right.
    Senator Graham. But would you agree with the proposition 
that under the law of armed conflict, if someone has been 
properly designated as an enemy combatant, under the law of 
armed conflict they can be held off the battlefield as long as 
they present a danger?
    Ms. Johnsen. Yes. The Supreme Court has so held.
    Senator Graham. Okay. Now, when it comes to the disposition 
of the detainees at Guantanamo Bay, I am urging the 
administration to continue with the process of closing 
Guantanamo Bay, but let's work our way through this problem, 
believing that we are at war. And when it comes to Article III 
courts to try detainees, it seems to me that you would be 
shifting your theory.
    Are you familiar with the military justice system at all?
    Ms. Johnsen. A little bit, Senator.
    Senator Graham. I would encourage you to talk to our judge 
advocates.
    Ms. Johnsen. Yes, absolutely.
    Senator Graham. I personally have a lot of confidence in 
the men and women who administer justice in our military. They 
have, I think, in many ways been the conscience of the Nation 
when it came to detainee policy. And my belief is that the 
military justice system would be the proper venue to deal with 
someone who is accused of being a war criminal. Does that 
strike you as being out of the mainstream?
    Ms. Johnsen. I would just say that my role, if I am to be 
confirmed, would not be to make that kind of judgment, and it 
is not within my expertise. But I certainly share your 
admiration for the military court of justice. But it is not my 
expertise.
    Senator Graham. Will you have input as to what kind of 
legal system we will use to deal with people at Guantanamo Bay?
    Ms. Johnsen. To the extent that it involves questions about 
the legality of the options, I would, and I dealing with 
absolutely in the principles highlight the need to include 
experts from the military in examining such questions.
    Senator Graham. One of the ideas that I have is that it is 
important for us to let the world know that if someone is 
detained in a prison, wherever you may locate it, it is not an 
arbitrary decision, and that the system I would envision is 
that the military would have the first crack as to whether or 
not the individual is an enemy combatant, with better due 
process than we provide now; but eventually that there would be 
an Article III panel of judges, an independent judiciary would 
also be required to make that determination. And my belief is 
that if you had an independent judiciary listening to the facts 
and hearing the evidence, it would legitimize in the eyes of 
the world, quite frankly, that the person is being held by a 
process that is not arbitrary. Does that make sense?
    Ms. Johnsen. Absolutely. The appearance and reality of 
independence is essential to those kinds of----
    Senator Graham. And one of the problems I have with the 
past administration is that they had this theory of Executive 
power, the power of the Executive, that basically their view 
was that they could do everything in-house. From your point of 
view, it would be OK to share power with an Article III court 
when it comes to whether or not a person is an enemy combatant. 
The executive branch would be willing to share power with the 
judiciary to make that decision?
    Ms. Johnsen. I am generally very in favor of the branches 
working together and sharing power and think that generally 
leads to stronger outcomes.
    Senator Graham. Okay. Well, I look forward to talking with 
you more about this as we try to find out the disposition path 
forward when it comes to detainees that are too dangerous to be 
released and there is no country that will take them and how to 
try them. I wish you well in your new job.
    Thank you.
    Senator Feinstein. We will have a second round, but to 
finish this round, Senator Durbin is next. I will recognize you 
now, Senator.
    Senator Durbin. Thank you very much, Madam Chairman, and 
thanks to both the witnesses.
    I would like to ask Ms. Johnsen: You have written about the 
appropriate role of the Office of Legal Counsel, and I thought 
one of the statements that you made was very insightful. You 
said, ``If the President desires only a rubber stamp, the 
Office of Legal Counsel will have to struggle mightily to 
provide an effective check on unlawful action. In addition to 
being prepared to say no, therefore, Presidential lawyers must 
be prepared to resign in the extraordinary event the President 
persists in acting unlawfully or demands that the OLC issue 
opinions to help legitimize unlawful activity.''
    You have also written that the OLC must emphasize 
``accuracy over advocacy,'' and that their ``advice should 
reflect all relevant legal constraints.''
    There was recently an article in Newsweek Magazine relative 
to the results of an OPR investigation which Senator Whitehouse 
and I requested, which we have yet to see--and I hope we do 
soon. But relative to that, as you know, in 2002 the head of 
the Office of Legal Counsel, Jay Bybee, now a Federal judge, 
issued the infamous torture memo which narrowly defined torture 
as limited only to abuse that causes pain equivalent to organ 
failure or death. The memo, which was written by then-OLC 
Deputy John Yoo, also concluded that the President as Commander 
in Chief has the right to violate the anti-torture statute.
    In your opinion, in your view, did that torture memo 
reflect relevant legal constraints?
    Ms. Johnsen. Senator, I have written very critically of 
that opinion and, in fact, made clear that the writing of the 
principles was a response to the view that that opinion was not 
written in the best traditions of the office and did not 
reflect the first principle, which is that legal advice should 
be impartial, independent, accurate, and principled. And so I 
believe that the opinion did not represent those best 
traditions.
    Senator Durbin. In 2005, Steven Bradbury, who was then 
acting head of OLC, reportedly signed two OLC legal opinions 
approving abusive interrogation techniques. According to the 
New York Times, then-Attorney General Alberto Gonzales approved 
one of the opinions over the objections of the Deputy Attorney 
General Jim Comey, who said the Justice Department would be 
``ashamed'' if the memo became public.
    The other opinion reportedly concluded that abusive 
interrogation techniques such as waterboarding do not 
constitute cruel, inhuman, or degrading treatment. This opinion 
was apparently designed to circumvent the McCain torture 
amendment, an amendment which passed on the floor of the Senate 
with 90 votes, which I cosponsored and had wide bipartisan 
support, which prohibited cruel, inhuman, and degrading 
treatment.
    I know you cannot comment on specific classified OLC 
opinions that you have not reviewed, but you have written about 
the obligation to notify Congress if the executive branch does 
not fully comply with a Federal statute. Could you elaborate on 
this in light of the opinion and the McCain statute, which had 
been signed into law by the President?
    Ms. Johnsen. Yes, Senator, you are absolutely right, I have 
not seen those classified opinions, and so I want to make clear 
I am not saying anything about them. But, again, I would 
emphasize the need for Congress to know the way in which the 
executive branch is interpreting and in some cases refusing to 
fully comply with Federal statutes.
    In some cases, the opinions may involved classified 
material, and so it may be necessary--and I do not think there 
is any disagreement about this--to do it in a non-public way or 
to redact certain parts of the opinion, or to prepare some 
alternative document, not provide the opinion itself but some 
alternative way of explaining how it is that the executive 
branch is interpreting the meaning of statutes.
    Senator Durbin. I asked Mr. Bradbury at an earlier hearing, 
and I quote, ``In your personal opinion, is it legally 
permissible for U.S. personnel to subject a detainee to 
waterboarding? '' And he refused to answer. Now, I know that 
Senator Feinstein has asked you that question.
    I also asked Mr. Bradbury, ``Would the torture statute be 
unconstitutional if it conflicted with an order issued by the 
President as Commander in Chief? '' He refused to answer that 
question. He said, and I quote, ``I would not attempt to define 
in the abstract the limit of a President's constitutional 
powers.''
    What is your view?
    Ms. Johnsen. Well, I guess I do agree in the abstract with 
his statement, and that is one of the principles we discussed, 
that it is best not to answer very broad questions about the 
constitutionality of things without having the specific facts. 
And I think you get into trouble--we talked about this a little 
earlier--when OLC tries to write opinions that address matters 
that are not actually necessary to address and to broadly 
describe the scope of the President's Commander in Chief power 
to the extremes and better to focus on precisely what it is a 
policymaker is contemplating.
    Senator Durbin. Well, I guess I would go to the bottom-line 
question now. I want to make sure I understand your answer. 
Would the torture statute be unconstitutional if it conflicted 
with an order issued by the President as Commander in Chief?
    Ms. Johnsen. That is the exact question, I think, in the 
August 2002 memo issued by OLC. They concluded that the 
President had the authority to direct that the torture statute 
not be complied with. And I think that is absolutely wrong and 
that Congress clearly has the authority to make torture a 
crime.
    Senator Durbin. Okay. Mr. Kris, I do not know if you have 
been asked about Guantanamo, and if you have, I do not want to 
return to that issue. Has that been asked?
    Mr. Kris. Senator Feinstein and I had a discussion about 
it, yes.
    Senator Durbin. Then I am going to yield back my time. I 
will take a look at her questions and your answer.
    Thank you very much, both of you, Madam Chairman.
    Senator Feinstein. Thank you very much, Senator.
    Senator Hatch, if he is here, has asked to go next. I do 
not see him. So we will begin a second round.
    Ms. Johnsen, this is only my view. I listened to an 
Attorney General come before us and say that he wore two hats. 
One was to staff the President, and the other was to be the 
lawyer for the people. I believe most people on this Committee 
believe that the Department of Justice has to be separate from 
the White House, and that the Department of Justice represents 
the people. And we have had some real problems in the Office of 
Legal Counsel believing--at least this is my belief--that the 
office went far right and really gave overdue bearance to the 
Executive and what the Executive wanted to do in its legal 
opinions.
    I do not want this office now to go way left and do the 
same thing. And in reading, you have been a real activist, a 
professor, but your writings are very clear in proposing one 
point of view. And you said that you realize that when you went 
in the door, you gave all of that up. My question to you is: 
Can you do that? You have got such a pronounced, definitive 
record of stating your views very freely in all kinds of 
different forums--written and verbal--and I do not want to come 
back in 4 years or 5 years and see that the OLC has just gone 
contra to what it was in the Bush administration.
    Can you respond to that, please? Because I really need some 
assurance that that is not going to be the case.
    Ms. Johnsen. Yes, Senator. Thank you for that opportunity 
to address this. I think that is the most important thing to 
look for in the head of the Office of Legal Counsel, is 
commitment to the rule of law and recognition that, you know, 
my view--the principles set forth the right way to do it. And, 
again, I do not mean to take credit for that. It was an attempt 
to look at the best traditions and write it down so that it 
would provide guidance to everybody across administrations, 
throughout the Office of Legal Counsel.
    I have absolutely no hesitancy in saying I pledge my full 
commitment to doing exactly what you describe needs to be done. 
I know I can do it because I did it for 5 years when I was 
there from 1993 to 1998, and without any difficulty at all. And 
I would urge and hope that you and others would take a look at 
some of the letters that were written on my behalf by the top 
lawyers and other officials at places like----
    Senator Feinstein. All those letters will go into the 
record, both for you and for Mr. Kris, along with any statement 
of any member. And I have a statement here from the Chairman of 
the Committee, Senator Leahy, which will also go in the record.
    Ms. Johnsen. Excellent. Thank you, Senator.
    But as I said in my opening, my greatest passion is for the 
rule of law. The lawyers at OLC are sometimes described as 
``lawyers' lawyers,'' those who get into the nitty-gritty of 
the great difficult legal questions, and also incredibly boring 
arcane statutory interpretation. And that is--I love it. I 
mean, that is a highlight of my career, working at OLC, and 
having the privilege of serving the country in that way for 5 
years. So I know how it needs to be done, and I pledge to do 
it.
    Senator Feinstein. Okay. That is fine. Now let me ask a 
second question. On April 1, 2008, the Justice Department 
released a March 2003 opinion written by Mr. Yoo. That memo 
asserted that the President had unlimited power to order brutal 
interrogations to exact information from detainees. That memo 
references, on page 8, Footnote 10, another OLC memo written by 
the same person in October of 2001, and it concluded that the 
Fourth Amendment had no application to domestic military 
operations so that civilians had no Fourth Amendment guarantee 
of reasonable search and seizure.
    I have been asking for the October 2001 memo to be released 
for almost 1 year now. It remains classified. Last April, I 
asked former Attorney General Mukasey about it, and he said 
publicly that releasing it was a priority, but to date, the 
memo has not been released. This is a very troubling 
proposition that the Fourth Amendment which gives the right to 
reasonable protection against search and seizure does not apply 
to any domestic military operation that might take place on our 
soil.
    I want to ask you if you will look into this opinion. I 
want to find out if it is operative, and if it is, I would ask 
the question that you rescind it. And will you provide the 
opinion, this opinion, to Congress?
    Ms. Johnsen. Senator, I remember reading that memo and that 
footnote in particular, and if confirmed, I will look forward 
to reading the full opinion just as soon as I can. And I pledge 
to make it a priority to read that opinion and--I cannot pledge 
absolutely to release it not knowing what is in it, but 
certainly to get back to you very quickly with the status----
    Senator Feinstein. Well, let me ask you the question. Do 
you believe that the proper interpretation of law is that the 
search and seizure protections of the Fourth Amendment are null 
and void when it comes to a domestic military operation in the 
United States?
    Ms. Johnsen. That certainly sounds wrong to me, and that 
was the reaction when I read the footnote. But--and I hate to--
I do not mean to equivocate, but I do feel that I would very 
much like to read the full opinion and have the benefit of that 
before saying anything more.
    Senator Feinstein. Okay. Thank you.
    Senator Whitehouse.
    Senator Whitehouse. Thank you so much, Chairman.
    Following up on this question of classification of these 
opinions, back to the day that I went to read the warrantless 
wiretapping opinions--and they were, you know, a stack this 
high--everything was so classified that they took my notes 
away, and I was only allowed to read my own notes over in the 
secure confines of the Intelligence Committee. My notes said 
things like--I ultimately had these phrases declassified. These 
were phrases from the opinion.
    The President is not bound by executive orders. He has the 
ability to depart from them, and when he does, he does not 
violate them; he just waives them.
    The President has the Article II authority to define what 
his own Article II authority is. The Department of Justice is 
bound by the President's legal determinations.
    You know, for the life of me I could not figure out how 
those things needed to be classified. Those are legal 
propositions that are highly debatable. I think the second one 
runs afoul of Marbury v. Madison, and the third one runs--that 
is the David Frost line from ``Frost/Nixon'': The President 
says what the law is--which is nice if you are the President 
who broke the law, but not very helpful in a country like ours.
    I really think a whole new look has to be taken at how much 
of this stuff needs to be classified. I believe very strongly 
that the heavy classification of a lot of this legal analysis 
served to protect it from scrutiny, not for national security 
reasons but because it would have been embarrassing to the 
people who wrote it because it was so badly done. It would not 
have survived the scrutiny of review.
    One example is that the opinions related to the warrantless 
wiretapping program were not provided to the lawyers at NSA. 
NSA is running the program. It is not like it is a secret over 
there. Why NSA is running the program but its lawyers cannot 
see the legal justification, it just makes no sense from a 
national security perspective. It makes a world of sense if the 
national security lawyers are going to take a look at this and 
say, ``What, are you guys kidding? ''
    So I strongly support the comments that have been made by 
my colleagues that we need to review this question of 
classification. It lends itself to enormous abuse, and I think 
it has, in fact, been associated with that kind of abuse in 
recent years.
    The OPR report is coming up at some point. Senator Durbin, 
who was here a moment ago, and I have asked from the very 
beginning that we be provided a copy of the report when it was 
finished. Marshall Jarrett said that he would provide it to us. 
We have renewed that request. I gather the report--from public 
media attention to this, the report has been put through some 
kind of a process at the Department of Justice where the 
Attorney General did not want it released and he wanted the 
subjects of it to have a chance to comment on it, maybe even 
write a chapter of their own. It strikes me as a novelty that 
the subject of an OPR investigation would get an opportunity to 
become a coauthor of it, but we will see exactly how that all 
turns out.
    My question for you is: Can you see--well, what I would 
like you to do is to take no step of any kind that would 
interfere with the release of that OPR report, notwithstanding 
that it talks about, assuming you are confirmed, your agency. 
Do you have any intentions to take any steps to inhibit or 
interfere with or try to prevent or stop the release of that 
OPR report when it is ultimately ready for publicity--or 
conclusion, I guess, would be----
    Ms. Johnsen. Senator, all I know is what was in the article 
you are describing, so I want to make clear I have no personal 
knowledge. And I do not think it obviously would be appropriate 
for me to try to speculate about what is in it where I have no 
information and it is pending before, according to the press 
report, the Attorney General. But I absolutely have no 
intention to interfere with the release of that report. That 
never crossed my mind.
    Senator Whitehouse. Very good. I appreciate that. My final 
question has to do with something that we may find is covered 
by that report. The problems with OLC are partly problems of a 
failure of scholarship and integrity, in my view, but I think 
they are also partly a problem of firewall failure. There is at 
least some evidence that the Office of the Vice President, and 
perhaps other offices in the White House, had significant input 
into some of these decisions and, indeed, may have directed 
them.
    If this question is not addressed in the OPR report, or 
even if it is addressed but not to your satisfaction, will you 
take a look not only at what went wrong in terms of why this 
legal opinion is defective, but why it went wrong, and work 
with this Committee to recommend safeguards that might prevent 
that from happening again? This Committee is familiar, as the 
Chairman so well knows, with the firewall, the general firewall 
between the Department of Justice and the White House that 
first Attorney General Ashcroft and then Attorney General 
Gonzales knocked down, so that people like Attorney Addington 
in Dick Cheney's office and Karl Rove in the White House had 
access to prosecutors and career staff from the Department of 
Justice to talk about ongoing cases and investigations. And I 
have many disagreements with Attorney General Mukasey, but to 
his credit, he put that firewall back up. He put it back, I 
think, better than ever, and he is entitled, I think, to much 
credit for that.
    There may be something like that that is necessary on OLC, 
and I ask your agreement to both look at that question and work 
with us in finding an appropriate response, noting that the 
firewall actually was first created in a letter between the 
Department and this Committee, in fact, to then-Chairman Hatch.
    Ms. Johnsen. Yes, you absolutely have my commitment. I 
think looking at possible failures in process is critical, and 
I have been keenly interested in that over the last several 
years, and I think working together with this Committee is also 
critical
    Senator Feinstein. Thank you very much.
    Senator Whitehouse. Thank you, Chairman.
    Senator Feinstein. I believe this is going to conclude our 
hearing. I would like to ask members to get their written 
questions in as soon as possible. The record generally stays 
open for a week. The reason for asking this is that Mr. Kris' 
nomination is on a sequential referral, and so it will go to 
the Intelligence Committee next, and we obviously want to 
process it and get it done as quickly as possible, so 
concluding it here is really important.
    I want to thank both of you for being here. I want to thank 
you for your offer of public service. It is a most interesting 
arena, and these are two key and critical positions, so thank 
you very much. And there are no further questions, so I am 
going to adjourn the Committee.
    Ms. Johnsen. Thank you.
    Mr. Kris. Thank you.
    Senator Feinstein. Thank you.
    [Whereupon, at 4:20 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record.]





                         EXECUTIVE NOMINATIONS

                              ----------                              


                        TUESDAY, MARCH 10, 2009

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, Pursuant to notice, at 2:32 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Herb Kohl, 
presiding.
    Present: Senators Kohl, Feingold, Schumer, Cardin, 
Klobuchar, Kaufman, Specter, and Coburn.

 OPENING STATEMENT OF HON. HERB KOHL, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Kohl. Good afternoon to you all. We meet today 
regarding the nominations of three individuals to become 
Assistant Attorneys General to head vital components of the 
Justice Department: Lanny Breuer to head the Criminal Division; 
Christine Varney to head the Antitrust Division, as well as 
Tony West to head the Civil Division. We congratulate all three 
of you on your impressive credentials and today's nomination.
    Mr. Breuer, the Criminal Division plays a critical role in 
prosecuting a wide variety of crimes from public corruption to 
gang violence, to child exploitation. Of particular note, if 
you are confirmed, you will work with the FBI and U.S. 
Attorneys around the country to prosecute crimes in the wake of 
our financial crisis, such as corporate, mortgage, and 
investment fraud, and white-collar crime.
    Mr. West, the Civil Division has a critical function to 
represent and defend the United States, its agencies and 
departments, and Cabinet members in thousands of cases per 
year. Notably, we also rely on the Division to root out waste, 
fraud, and abuse in government contracting as well as to 
enforce consumer protection programs of the Food and Drug 
Administration, the Federal Trade Commission, and the Consumer 
Product Safety Commission.
    As Chairman of the Antitrust Subcommittee myself, Christine 
Varney's nomination to head the Antitrust Division is of 
particular interest to me. Ms. Varney, your nomination comes at 
a particularly crucial time for antitrust enforcement. As our 
economy is buffeted by a severe recession, we depend on 
vigorous competition to spur economic growth. Only aggressive 
enforcement of our Nation's antitrust laws will ensure that 
competition flourishes and that consumers obtain the highest-
quality products at the lowest possible prices.
    Unfortunately, the record of the Antitrust Division during 
the previous administration was, in my opinion, deficient in 
many respects. Large mergers among direct competitors in highly 
concentrated industries affecting millions of consumers met no 
resistance from the Antitrust Division despite the reported 
objections of career staff. We also saw sharp declines of 
antitrust enforcement with respect to other business practices, 
threatening competition. The Antitrust Division even issued a 
report on monopolistic conduct that would dramatically close 
the door on antitrust enforcement against dominant firms that 
act to suppress competition, a position that drew the 
opposition of the Federal Trade Commission.
    The Justice Department filed several briefs before the 
Supreme Court advancing a very restrictive view of antitrust 
law. At the Supreme Court, the Department went so far as to 
oppose the FTC's efforts to sue brand-name drug manufacturers 
who pay large sums of money to their generic competitors to 
keep the competition off the market. This sorry record of 
passivity and, at times, even hostility toward antitrust 
enforcement must now be reversed.
    I thank all nominees who are here today for their 
dedication to public service and look forward to their 
testimony.
    I now turn to introductions. We are going to listen to Jane 
Harman, who will introduce Christine Varney.

 PRESENTATION OF CHRISTINE A. VARNEY, NOMINEE TO BE ASSISTANT 
   ATTORNEY GENERAL, ANTITRUST DIVISION, U.S. DEPARTMENT OF 
JUSTICE, BY HON. JANE HARMAN, A REPRESENTATIVE IN CONGRESS FROM 
                    THE STATE OF CALIFORNIA

    Representative Harman. Thank you, Mr. Chairman. It is a 
pleasure to be back in this Committee hearing room. A long time 
ago, I spent hundreds of hours sitting in the back benches as 
Chief Counsel and Staff Director of what was then called the 
Judiciary Subcommittee on Constitutional Rights, working for 
former Senator John Tunney. All of you staffers have great 
jobs, and it is good to see this Committee hard at work.
    Mr. Chairman, President Obama chose wisely when he 
nominated Christine Varney to be Assistant Attorney General of 
the Antitrust Division of the Department of Justice. She is my 
dear friend, a colleague for a quarter century, and a person 
whose intellect, loyalty, and judgment are exceptional. I am 
honored to introduce her to you today.
    As the letters you have received in support of her 
nomination confirm, Christine is held in high esteem by her 
colleagues and established her antitrust credentials as a 
Federal Trade Commissioner and a partner at Hogan & Hartson, 
where she has headed its Internet practice since 1997.
    Christine has also dedicated a good portion of her legal 
career to public service, first at the FTC from 1994 to 1997, 
and as Cabinet Secretary in the Clinton administration, where 
she was a leading voice on information technology and 
information privacy policy.
    Christine and I practiced law together in the 1980s. I was 
the mentor, though she did not need much mentoring. She insists 
that she followed my early career, holding many of the jobs I 
did, like her stint in the White House, but she did it all much 
faster.
    Our families are close. Christine and Tom's kids used our 
hand-me-down baby furniture. They, of course--the kids, that 
is--have grown into responsible young men. The younger son, 
Mickey, excelled as an intern in my congressional office and is 
now a freshman at USC--you guessed it--in Los Angeles.
    Christine is superbly qualified to be the next Assistant 
Attorney General of the Antitrust Division. She is never 
ideological or doctrinaire and, if confirmed, I am confident 
she will put politics and personal views aside and examine the 
facts and the law on matters that come before her. She will be 
well prepared from day one in a job that giants, like Phillip 
Areeda, a favorite Harvard law professor of mine, held before 
her. As you noted, Mr. Chairman, antitrust enforcement is of 
critical importance in these tough economic times.
    In conclusion, Christine will be an asset to the Department 
of Justice, the new administration, this Committee, and to our 
country. I look forward to the Committee reporting her 
nomination favorably and urge a confirmation vote before the 
full Senate without delay. You will be proud of her, as I am.
    Thank you.
    Senator Kohl. Thank you very much, Ms. Harman.
    I would like to introduce Tony West, who is nominated to be 
Assistant Attorney General for the Civil Division. Mr. West was 
born in San Francisco, California, and grew up in San Jose. He 
earned his bachelor's degree from Harvard College and then went 
on to pursue a law degree at Stanford. Currently, Mr. West is a 
partner in the San Francisco office of the law firm of Morrison 
& Foerster, where he represents individuals and companies in 
civil and criminal matters.
    Prior to joining that firm, he worked in public service for 
many years as a Special Assistant Attorney General in the 
California Department and Assistant U.S. Attorney for the 
Northern District of California, and as a Special Assistant to 
Deputy Attorneys General Philip Heymann and Jamie Gorelick. 
Before entering public service, Mr. West was an associate at 
the firm Bingham, McCutchen in California.
    I would like to ask all of you nominees to come up and 
raise your right hand as I administer the oath of office--the 
oath before you testify. You are not in office yet.
    [Laughter.]
    We will see after this hearing is over.
    Do you affirm that the testimony you are about to give will 
be the truth, the whole truth, and nothing but the truth, so 
help you God?
    Mr. Breuer. I do.
    Ms. Varney. I do.
    Mr. West. I do.
    Senator Kohl. Thank you. Be seated, please.
    Senator Schumer is running a bit late. He wants to 
introduce Mr. Breuer himself, but we will do that when he 
comes.
    At this time, Mr. Breuer, we would like to ask you to 
introduce your family, if you so wish, and make any public 
comments before we get to your questions.
    Mr. Breuer. Thank you, Mr. Chairman, very much.
    Mr. Chairman, let me take a moment and introduce my family. 
Behind me is my wife, Nancy, the love of my life and my life's 
partner; and my two handsome sons, Andrew over here, and behind 
him, Sam Breuer. They are just wonderful and bring us unbounded 
joy.
    Senator Kohl. That is great, and before you start with your 
comments, I would like to ask Senator Schumer if he would like 
to make an introduction to us here today.
    Senator Schumer.

   PRESENTATION OF LANNY A. BREUER, NOMINEE TO BE ASSISTANT 
    ATTORNEY GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT OF 
 JUSTICE, BY HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE 
                       STATE OF NEW YORK

    Senator Schumer. Well, thank you, Mr. Chairman. I apologize 
to you and Senator Klobuchar and to the panel and audience that 
I am a little late here. And I want to say how pleased I am to 
introduce to the Committee Lanny Breuer, the President's 
nominee to be Assistant AG of the Criminal Division. And, Mr. 
Breuer, I congratulate you on your nomination and welcome the 
love of your life and the rest of your family as well. Very 
touching to hear you say that. Very nice.
    Anyway, Senator Kohl will give you a chance to introduce--
well, he did give you a chance to introduce the whole family. 
But I want to mention Lilo, who traveled here from Elmhurst, 
Queens, a neighborhood I very much love. I ride my bicycle 
through it on Saturdays sometimes. Lilo came to this country 
from Germany in 1939, Mr. Chairman. She came alone as a 
teenager, having lost her parents in the Nazi death camps. 
Seventy years ago, she was a frightened teenager in a new land, 
orphaned by a lawless and unjust government. Today she looks on 
as her son is considered by a U.S. Senate Committee for what is 
one of the most important jobs at the Department of Justice. 
What a quintessentially and great American story.
    Mr. Chairman, Lanny Breuer has proven over a lifetime and a 
career that he has what it takes to serve honorably and 
effectively as Attorney General. He is a product of New York 
City Public Schools, P.S. 13, Newtown High School. Mr. Breuer 
also received his college and law degrees from Columbia. After 
law school, he served as assistant district attorney under the 
legendary Bob Morgenthau, who just announced his retirement. 
There he distinguished himself prosecuting cases involving 
murder, armed robbery, white-collar crime, and other offenses. 
And Mr. Morgenthau recently wrote to our Committee about his 
former protege's nomination. Here is what he wrote:
    ``Mr. Breuer is an outstanding choice for this position, 
will be a conscientious, highly intelligent, and principled 
Assistant Attorney General for the Criminal Division.''
    Mr. Morgenthau, as everyone here knows, is an incomparable 
legal legend who knows a thing or two about intelligence and 
principle.
    So, then, what did Mr. Breuer do with all the street smarts 
he picked up in Queens? The scholarship he got at Columbia, the 
legal craft he honed at the Manhattan D.A.'s office, he brought 
it here to Washington, which I suppose can always use help from 
a smart New Yorker--or usually, anyway.
    In Washington, Mr. Breuer again distinguished himself in 
case after case as a lawyer at the prestigious Covington & 
Burling. He picked up countless accolades along the way, and he 
has always maintained through this his commitment to public 
service. He was vice chair of his firm's Public Service 
Committee, and he personally represented the poor. He has also 
had every type of client, from the President of the United 
States, to corporate boards, to the good people of New York 
City.
    But whether he is representing the most powerful man in the 
world--Bill Clinton, at the time--or the most powerful arm in 
the world--Roger Clemens, at the time--or the least powerful 
and indigent defendant, Mr. Breuer has always distinguished 
himself with hard work, diligence and integrity. Those are the 
qualities we need in an Assistant Attorney General, and my 
staff has written more. They have waxed poetic here, but I am 
going to ask unanimous consent that the rest of the statement 
be put in the record, because I know time is important to you, 
Mr. Chairman.
    Senator Kohl. Thank you, and without objection, it will be 
done, Senator Schumer.
    Mr. Breuer, let us see if you can live up to that 
introduction.
    [Laughter.]

STATEMENT OF LANNY A. BREUER, NOMINEE TO BE ASSISTANT ATTORNEY 
      GENERAL, CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE

    Mr. Breuer. Well, Mr. Chairman, I think now my mother 
thinks that Senator Schumer is her favorite person in this 
Senate room.
    Senator Schumer. Because she does not know the other 99, I 
think is the reason.
    Mr. Breuer. I want to begin by thanking Senator Schumer. I 
am deeply honored. Senator Schumer has given a lifetime as a 
remarkable public servant and Senator for the people of New 
York and for the people of the United States, and his words are 
very meaningful to me.
    Mr. Chairman and members of this Committee, I am honored to 
appear before you today as President Obama's nominee to be the 
Assistant Attorney General for the Criminal Division.
    I would like first to express my appreciation to the 
Committee's members and their staffs for considering my 
nomination. I am grateful for the courtesy that the Committee 
has afforded me during the nomination process, and, if 
confirmed, I will look forward to working with you on the many 
important criminal law enforcement issues facing our country.
    I have, of course, introduced part of my family. I just 
want to also acknowledge my brother Richard; my in-laws Carol 
Robinson and Irwin Robinson; and my many friends who have come 
here today who have been with me, and their support has been 
unwavering throughout my life.
    Mr. Chairman, my father, Robert, is no longer living, but 
he would have been so proud if he had made it to this day.
    As Senator Schumer said, my parents have a quintessential 
American story. My mother, as the Senator said, did lose her 
parents in the Holocaust, came to this country, like my father, 
with nothing. But that did not stop them. They worked hard and 
forged a new life for themselves and for our family. And along 
the way, my parents, having witnessed the devastation of the 
Holocaust, instilled in me a distinctly American respect for 
fairness, the rule of law, and the pursuit of justice.
    If I am confirmed to this important post, I will pursue 
wrongdoing vigorously, just as I did when I was a prosecutor in 
the Manhattan D.A.'s office, whether it is financial crime, 
public corruption, child exploitation, drug offenses, gang 
violence, or other crimes, I will steadfastly enforce our 
criminal laws. And because protecting our national security and 
fighting terrorism remain paramount, if confirmed, I also will 
work closely with the Department's leadership, the National 
Security Division, and the U.S. Attorneys' Offices around the 
country to ensure an effective strategy for combating 
terrorism.
    As the head of the Criminal Division, it would be my true 
privilege to serve under Attorney General Eric Holder, for whom 
I have the utmost respect and admiration. And it would be an 
honor for me to serve alongside the career professionals at the 
Department, whose dedication and talent are vital to its 
mission. I also believe it is essential for the Criminal 
Division to have close and productive relationships with 
Federal law enforcement and regulatory agencies, as well as to 
partner with State and local law enforcement officials. All of 
these dedicated men and women help to keep our communities 
safe, and they are critical to the work of the Department.
    In closing, let me assure this Committee and the American 
people that, if confirmed, I will work tirelessly to execute my 
duties with determination and resolve, ever mindful of the 
government's great power, but firm in my belief that those who 
violate our criminal laws--whether in the boardroom or the back 
alley--must be held to account.
    Thank you very much, and I look forward to the Committee's 
questions.
    [The prepared statement of Mr. Breuer appears as a 
submission for the record.]
    [The questionnaire of Mr. Breuer follows.]




    
    Senator Kohl. Thank you, Mr. Breuer.
    We now turn to Christine Varney.

   STATEMENT OF CHRISTINE A. VARNEY, NOMINEE TO BE ASSISTANT 
   ATTORNEY GENERAL, ANTITRUST DIVISION, U.S. DEPARTMENT OF 
                            JUSTICE

    Ms. Varney. Thank you, Mr. Chairman and members of the 
Committee. I am deeply honored to be here today. As someone who 
has spent more than a decade working on antitrust matters and a 
lifetime in public service, I cannot begin to express my 
gratitude to the President for nominating me and this Committee 
for considering me to be the Assistant Attorney General for 
Antitrust.
    If am fortunate enough to be confirmed, I look forward to 
working with all members and staff of this Committee in 
enforcing our antitrust laws and renewing our Nation's standing 
as the international leader in antitrust.
    I am pleased that some of my family is here today and would 
like to take a moment to introduce them. First, the love of my 
life, my husband, Tom Graham, to whom I owe everything. As he 
is the one who spent hours on the financial disclosure forms, I 
can truly say I would not be here if it were not for him. Thank 
you.
    [Laughter.]
    We also have two handsome sons, but they are in college and 
could not get the day off, so they are watching on the web cam, 
I hope.
    My other family members here include my father, Jack 
Varney, who actually served as an attorney in the Antitrust 
Division 50 years ago. I know he could not be prouder that you 
are considering my nomination. My sister Jackie and her 
husband, John, are here, along with my niece Molly. My other 
five siblings are here in spirit, including my brother, Brian, 
who is currently serving our country in Iraq.
    Strong antitrust enforcement and respect for our 
competition laws underpin our free enterprise system. There are 
three main areas that, if confirmed, will be my focus.
    First, we must rebalance legal and economic theories in 
antitrust analysis and vigorously enforce the law.
    Second, we need renewed collaboration between the Antitrust 
Division and the Federal Trade Commission, whose policies and 
processes have unfortunately diverged too frequently in recent 
years. Policy and jurisdictional squabbles between the agencies 
are simply unacceptable. My friend and colleague, the Chairman 
of the Federal Trade Commission, Jon Leibowitz, is here, and I 
know he shares in my commitment to end that.
    Third, we must continue our cooperation with worldwide 
antitrust authorities, discussing our differences respectfully, 
and engaging with emerging antitrust regimes.
    In these tough economic times, more than ever, it is 
important to remember that clear and consistent antitrust 
enforcement--protecting competition and thus consumers while 
being conscious of the need for economic stability--is 
essential to a growing and healthy free market, both at home 
and abroad.
    Working with the committed and talented career staff at the 
Division, I am sure these goals can be achieved. I believe that 
competition has allowed the American spirit to soar and made 
this country great. I firmly believe that antitrust is a 
cornerstone of our economic prosperity, and I am committed to 
recruiting the best, brightest, and most experienced antitrust 
minds in the country to work at the Department of Justice 
alongside the outstanding staff already there.
    I sincerely appreciate that this Committee, along with the 
Antitrust Subcommittee led by Senators Kohl and Hatch, has been 
a consistent supporter of the Antitrust Division. I look 
forward to working with you in enforcing our antitrust laws and 
renewing our country's international antitrust leadership.
    Thank you for the opportunity to be here today, and I look 
forward to your questions.
    [The prepared statement of Ms. Varney appears as a 
submission for the record.]
    [The questionnaire of Ms. Varney follows.]




    
    Senator Kohl. Thank you very much, Ms. Varney.
    We now turn to Mr. Tony West. Go right ahead, sir.

   STATEMENT OF TONY WEST, NOMINEE TO BE ASSISTANT ATTORNEY 
      GENERAL, CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE

    Mr. West. Thank you, Mr. Chairman and members of the 
Committee. I am honored to appear before you as the nominee to 
serve as Assistant Attorney General for the Civil Division of 
the United States Department of Justice. I am grateful to the 
President and to the Attorney General for giving me the 
opportunity to return to the Department of Justice where I 
spent nearly half of my legal career.
    If I may, Mr. Chairman, I would like to introduce members 
of my family. Without them and the grace of God, I would not be 
here today.
    First, my law school classmate, my best friend, and, yes, 
the love of my life, my wife, Maya Harris West. An 
extraordinary woman of accomplishment in the law and policy, 
Maya has been as much my teacher as she has been my partner, 
and every day she is in my life is a blessing.
    I am so proud of our daughter, Meena, who is seated right 
behind me, who will enroll at Harvard Law School this fall.
    I also want to thank my parents, Peggy and Franklin, whose 
examples of strength, compassion, wisdom, and integrity I try 
to follow every day in my own life.
    My sister-in-law, Kamala, is here with us, whose 
unconditional support enriches my life every day. And also my 
Aunt Portia and Uncle Stan are here to give their love and 
support.
    I want to acknowledge three people who could not be here 
today: My two younger sisters, Pamela and Patricia, whose love 
keeps me grounded every day, as only siblings can; and my 
mother-in-law, Dr. Shyamala Harris, who passed away just last 
month after a courageous battle with cancer. Her spirit fills 
my heart today.
    Mr. Chairman, I revere the institution that is the 
Department of Justice. It was there that I learned to be a 
lawyer and where the most enduring and formative experiences of 
my professional career took place.
    I began my career in public service as a special assistant 
in the Deputy Attorney General's Office. Later, I served as an 
Assistant United States Attorney for several years, where I was 
honored to work alongside men and women who put their lives on 
the line every day as law enforcement agents. While at the 
California Attorney General's office, I had the good fortune to 
work with my Federal counterparts on issues of civil rights, 
antitrust enforcement, and Internet crime.
    The lessons that I learned at the Department of Justice I 
carried with me into private practice, where my advocacy has 
encompassed all aspects of civil litigation and included a 
diverse array of individual and corporate clients.
    All of this has given me a deep appreciation for the 
Department and its singular mission to pursue justice on behalf 
of the American people. It has also given me a profound respect 
for the talented professionals like those in the Civil Division 
who do the hard work of ensuring justice every day. Their task 
is without fanfare oftentimes, yet their commitment to 
upholding the integrity of the Nation's laws is unwavering. 
Should I be confirmed, I will do all within my power to live up 
to that high standard.
    I will work to, first, maintain the safety and security of 
the American people through the Civil Division's work involving 
national security; second, protect the taxpayers' dollars 
through the Civil Division's anti-fraud and False Claims Act 
enforcement efforts; and, third, ensure a Civil Division 
characterized by professionalism, independence, and 
nonpartisanship.
    Mr. Chairman, if confirmed, I also look forward to working 
with you and your colleagues in connection with your oversight 
responsibilities on matters that fall within the jurisdiction 
of the Civil Division.
    I thank you again for considering my nomination, and I am 
pleased to answer any questions you may have.
    [The prepared statement of Mr. West appears as a submission 
for the record.]
    [The questionnaire of Mr. West follows.]




    
    Senator Kohl. Thank you, Mr. West.
    I would also ask that statements of Senators Boxer and 
Feinstein in support of your candidacy be entered into the 
record.
    Mr. West. Thank you, Mr. Chairman.
    Senator Kohl. Now we will start with our questions. I would 
like to address Ms. Varney.
    As I said in my opening statement, I was quite disappointed 
with the sharp cutback of antitrust enforcement at the Justice 
Department during the past 8 years. Many mergers among direct 
competitors in highly concentrated industries passed review 
without any modifications, often over the reported objections 
of career staff. And many anticompetitive practices by dominant 
firms went unchallenged.
    While he was running for President, President Obama stated 
that the Bush administration had ``the weakest record of 
antitrust enforcement of any administration in the last half 
century.'' The serious decline in antitrust enforcement has 
been very disturbing to many of us. When the Justice Department 
is absent from the antitrust playing field, then millions of 
consumers suffer.
    Ms. Varney, what is your assessment of the antitrust record 
of the Justice Department during these past 8 years?
    Ms. Varney. Thank you, Senator. Let me start by saying I, 
too, believe that the career staff at the Department of Justice 
is absolutely outstanding. And while each particular merger 
must turn on an analysis of its own facts, I was not privy to 
the in-depth investigations that would have been carried out 
in, for example, the Whirlpool-Maytag merger or the XM-Sirius 
merger. But clearly, from the outside, those looked like 
mergers in horizontal markets that one wonders why they were 
not challenged.
    I can assure you that if I am confirmed to the Department 
of Justice Antitrust Division, the law will be vigorously 
enforced. Horizontal mergers will be thoroughly examined, and 
where they lead to impermissible consolidation and 
concentration, they will be blocked.
    Senator Kohl. Ms. Varney, one of the very few industries 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 have no 
antitrust remedies. Higher rail shipping costs are passed along 
to consumers, resulting in higher electricity bills, higher 
food prices, as well as higher prices for manufactured goods.
    I have introduced a bill that will abolish this absolute 
antitrust exemption for railroads, and I am very pleased to say 
that our Committee just last week approved the bill by a 14-0 
vote.
    Do you agree that this antitrust exemption should be 
repealed so that the railroads are subject to the same 
antitrust laws as virtually every other industry in the 
economy?
    Ms. Varney. Senator, as you know, antitrust generally 
disfavors blanket exemptions, and when you look back 
historically, certainly some exemptions were created for highly 
regulated industries. As those industries have become 
deregulated over the years, it clearly makes sense to examine 
the basis for their immunity. I think that your Committee 
drafted a terrific bill, and I understand that it was reported 
out 14-0, and I look forward to working with you and the 
Senate, if the bill is enacted, to take the next appropriate 
steps.
    Senator Kohl. I am not sure if I heard an answer to my 
question.
    Ms. Varney. Yes, Senator, I support your bill.
    [Laughter.]
    Senator Kohl. In 2007, we asked the Justice Department for 
a letter in support of this bill. We never received such a 
letter. Can we hope that you might be able to secure such a 
letter of support?
    Ms. Varney. I will work closely with my colleagues at the 
Department and with the Attorney General in an attempt to 
provide you that support.
    Senator Kohl. Thank you, so much.
    Resale price maintenance. Ms. Varney, for nearly a century, 
it was a basic rule of antitrust law that a manufacturer could 
not set a minimum price for a retailer to sell a product. This 
rule allowed discounting to flourish and greatly enhance 
competition for dozens of consumer products, everything from 
electronics to clothes.
    However, in 2007, in a 5-4 decision the Supreme Court in 
the Legion case overturned this rule and held that vertical 
price fixing was no longer banned in every case.
    Ms. Varney. That is right.
    Senator Kohl. I believe that this decision is very 
dangerous to consumers' ability to purchase products at 
discount prices and is harmful to retail competition. I have 
introduced legislation to overturn the Legion case and restore 
the ban on vertical price fixing.
    Do you agree on the principle that manufacturers' setting 
of retail prices should be banned? Can we expect your Justice 
Department to support our legislation in the event that you are 
confirmed?
    Ms. Varney. Senator, I, too, was quite surprised by the 
Supreme Court decision in Legion. As you mentioned, it was a 5-
4 decision. And while the Court held that the resale price 
maintenance was no longer per se illegal, it certainly left the 
Division a lot of room to continue to prosecute resale price 
maintenance where it results in anticompetitive consequence. 
And I intend to continue that prosecution. I will work closely 
with the Department, again, in determining what we can do to 
help your legislation. But even before your legislation makes 
its way into law, I think there still is a fair amount of room 
that we do need to aggressively prosecute anticompetitive 
behavior.
    Senator Kohl. Thank you.
    Ms. Varney, the severe economic recession we are currently 
experiencing has put substantial pressures on many industries 
to consolidate. This is especially true in the banking sector 
where numerous mergers and acquisitions have occurred. 
Transactions oftentimes have been at least partially funded by 
the government money under the TARP program.
    Last month, I wrote to Attorney General Holder and Treasury 
Secretary Geithner urging that proper heed be paid to antitrust 
principles and the effects on competition as the government 
considers consolidation in banking as well as other sectors. In 
a time of such economic difficulty, vigorous enforcement of 
antitrust is more essential than ever. Antitrust enforcement is 
vital to ensuring a vigorously competitive economy and to 
ensuring that consumers gain the benefits of low prices. There 
needs to be an advocate for antitrust policy in administration 
discussions regarding economic restructuring, and the best 
person for this role is you as the Assistant Attorney General 
for Antitrust.
    What is your view of this issue, Ms. Varney? What will be 
your approach to mergers and acquisitions in the banking or 
other troubled industries using government-funded bailout 
dollars? And what will you do to assure that antitrust has a 
``place at the table'' in this administration regarding 
economic restructuring?
    Ms. Varney. Thank you, Senator. I think that the 
consolidation that you have talked about in the financial 
institutions is incredibly important, extremely timely. As you 
know, and as you and I have discussed, it is not clear to me 
that the standards that were established under the Philadelphia 
Bank case are terribly relevant when we are looking at 
incredibly large institutions and their potential merger. So I 
think it is time to take a fresh look at what standards we use 
to measure consolidation and concentration in the financial 
markets.
    In order to do that, I will hope to have a seat at the 
table at the National Economic Council and other forums inside 
our government where these policies are considered so that the 
voice of competition can be clearly heard as we look at 
economic stabilization.
    You know, Senator, I often wonder if antitrust has failed 
if we have allowed institutions to be created that are too big 
to fail.
    Senator Kohl. Okay. That is a very good answer. I thank you 
so much.
    Let me turn now to Senator Klobuchar--or Senator Coburn? I 
think you were here first. Go ahead.
    Senator Klobuchar. Well, thank you very much. I want to 
congratulate all three of you and your families. My thanks 
particularly goes out to your husband, Ms. Varney, Mr. Graham, 
for having to do those economic disclosure forms. My husband 
does the same thing. I would suggest one trick. What he does is 
he piles them up in the living room so I almost fall over them 
to show how long it takes to do them, and he usually keeps them 
out for about 2 weeks. You might want to consider that in the 
future.
    [Laughter.]
    I wanted to ask you some questions, Mr. Breuer, about the 
Criminal Division of the Justice Department. As you know, I was 
a prosecutor for 8 years and worked with a gem of an office in 
the U.S. Attorney's Office in Minnesota, and then sadly saw 
what happened when someone was put in charge who really did not 
have the skills to run it. Luckily, when Attorney General 
Mukasey came in, he put in someone else--Frank Magill--who has 
kind of at least gotten the office back on track. But it was 
really a disturbing thing that happened in our State.
    And I have heard many times about the issues with morale in 
the Department because of the time during which Attorney 
General Gonzales served. Could you talk about what you are 
going to do to fix that?
    Mr. Breuer. Absolutely, Senator. Senator, as the President 
has said, as the Attorney General has said, politics can play 
absolutely no role in the choice of our Assistant U.S. 
Attorneys or those in the Criminal Division. And what we are 
going to ensure, if I am fortunate enough to be confirmed, is 
that the career people in the U.S. Attorneys' Offices and in 
the Department of Justice feel empowered, they will pursue 
cases purely based on the facts, and politics simply will not 
play a role.
    To the degree that morale is down, I think that the 
Attorney General, I, and others will try to meet as closely as 
we can with U.S. Attorneys and Assistant U.S. Attorneys and 
with the staff at Main Justice, and we will ensure that we 
empower the career people and they understand that the only 
thing we are interested in is pursuing our criminal laws and 
letting the facts lead us where they go.
    Senator Klobuchar. And, Mr. Breuer, do you see with these 
difficult economic times we have seen some huge criminal white-
collar cases coming up, from the Madoff case to a number of 
others across the country, do you see an increase in white-
collar crime? That would be my first question. And then my 
second question will be: If that is happening of that 
magnitude, how are you going to balance the demands on some of 
the street crime demands, the gun cases that the U.S. 
Attorneys' Offices have handled?
    Mr. Breuer. Well, Senator, you, of course, raise a very, 
very important issue. I do think it must be a priority that we 
pursue financial crimes, and those who have been involved in 
criminal conduct and have taken advantage of the system and, in 
part, have led to the plight we have now must understand that 
they are going to be held accountable. And so financial crimes 
is absolutely going to be a priority of the Criminal Division 
and the U.S. Attorneys' Offices.
    But, similarly, Senator, we are going to have to go after 
violent crime and street crime. We are going to have to do that 
as a strategic partner and leader with local and State law 
enforcement, district attorneys, like the one you yourself led. 
And we may come back at times if we think we do not have enough 
resources, Senator, and I am hopeful we can have a very 
meaningful conversation with this Committee, with you and all 
of your staffs. But it cannot be a zero sum game, Senator. We 
are going to have to go after both, and we are going to have to 
go after both aggressively.
    Senator Klobuchar. And one of my biggest concerns is that I 
just--we had a hearing--Senator Kohl mentioned we had a hearing 
about the oversight of TARP funds and other things and the work 
that needs to be done. And I just get concerned with shrinking 
local resources--and we helped some with the economic recovery 
bill with the Byrne grants--but with the shrinking local 
resources that things are going to be shoved out. And I lived 
through that somewhat after 9/11 when the U.S. Attorneys were 
understandably focused on terrorism, and many of the white-
collar cases came to the local attorneys' offices.
    One of the things that I most remember is the difficulty on 
the local level of handling, say, complex computer cases. We 
were always promised some kind of regional computer centers 
where our cops would be able to learn how, when they got to a 
scene, what to do with these cases, and it never really came 
through.
    So I hope you look at that, if you are going to be 
expecting some of the local prosecutors' offices to handle 
these cases, that they be given or be allowed to use some of 
the tools that the Justice Department has.
    Mr. Breuer. Absolutely, Senator. I think the programs you 
are referring to, whether it is Byrne, JAG, or the COPS 
program, are essential. But, for instance, the Computer Crimes 
Section in the Criminal Division is both a litigation section 
and must be a section that is used as a resource to local and 
State prosecutors, and Federal, and I will endeavor very much 
to make that happen.
    Senator Klobuchar. Okay. Thank you.
    Mr. Breuer. Thank you, Senator.
    Senator Klobuchar. Mr. West, whistleblowers, and this could 
go to both you and Mr. Breuer, but when we had our previous 
hearing, we talked about that, about the mess-up in the Madoff 
case and how a whistleblower had come forward and the 
information was not taken very seriously. Could you talk about 
how you are going to handle that in the civil context?
    Mr. West. Yes, Senator. You are quite right that this is 
one of the highest priorities of the Civil Division, and we--or 
I should say that the Department has been given some good tools 
in terms of the False Claims Act and some other tools to make 
sure that we have the ability to go after financial fraud. The 
Department, I understand, also has an increase requested in 
this next fiscal year budget particularly for financial fraud 
enforcement. And so, if confirmed, Senator, I can assure you 
that it would be my intention to ensure that we are spending 
our resources wisely and effectively to do all that we can to 
use these tools to the fullest extent possible to root out 
fraud and to recover taxpayer dollars which might be lost 
through misuse or fraud.
    Senator Klobuchar. Thank you very much.
    And last, Ms. Varney, I also serve on the Commerce 
Committee--I am the only Senator to serve on both committees--
and I am very focused on some of these antitrust commerce 
issues. Senator Kohl discussed the antitrust bill that we 
passed out. We are very proud of that on this Committee, with 
the railroads, and as you look at the letter that you may be 
writing to Senator Kohl on this, I just want to remind you that 
in 2004 the Department of Justice said that one practice that 
would violate the antitrust laws that the railroads do, and 
that is that they lease track to a short-line railroad under 
the STB rules. A major railroad that leases track to a short-
line railroad can require the short line only to do business 
with that railroad, and the Justice Department said back then 
that that would violate the antitrust laws. And then there are 
huge problems in my State with when you have competition along 
the route, they make you price the route to the very end even 
if the last 10, 20 miles do not have competition. And it has 
been an outrageous problem for all kinds of industries and 
small businesses in rural areas in our State.
    A second thing just to take note of for the future: I know 
that you said FTC Commissioner Leibowitz is there--somewhere 
back there. There he is. And I just wanted to call to your 
attention a case that the FTC has brought that we are very 
proud just came out of some facts in our State where a heart 
drug that saves babies' lives, the price was increased 18 
times. And it came to our attention from doctors at Minneapolis 
Children's Hospital when one drug company sold the rights to 
the drug to another drug company that happened to have the 
rights to the competing drug. And we brought it to the 
attention of the FTC and very quickly, literally in a few 
months, they brought a major antitrust case that has been 
brought in the jurisdiction of Minnesota.
    And so in talking to our doctors in Minnesota, just to 
highlight this for you, there is a lot of concern of some of 
these potential antitrust violations with pharmaceutical 
companies. If you want to briefly comment, I would appreciate 
it.
    Ms. Varney. Thank you, Senator. On the railroad issue, I 
look forward to working with you and your staff on those 
particular issues if am confirmed.
    On the pharmaceutical issues, as you know, the Federal 
Trade Commission does have jurisdiction over that, and I know 
that Chairman Leibowitz will do a terrific job, and he can 
count on the support of the Department of Justice as he goes 
forward and pursues those cases.
    Senator Klobuchar. Thank you very much.
    Senator Kohl. Thank you, Senator Klobuchar.
    Senator Coburn.
    Senator Coburn. Thank you, Mr. Chairman.
    First of all, let me apologize to each of you that I did 
not get to spend time with you in my office. As you can 
imagine, these are busy times, and I would extend my apology to 
you.
    I want to identify my remarks with those of Senator Kohl. I 
have been very disappointed over the past 8 years in the 
antitrust action of the Bush administration. I have also had 
some problems with the Federal Trade Commission as well, and 
so, Ms. Varney, when you talk about dealing with the FTC, how 
do you plan to work out those issues so that we have a 
coordinated, nonduplicative effort to accomplish true, free 
competition in this country? How do you not step on one 
another? And how do we make sure that we are prosecuting what 
we should and influencing what we should?
    Ms. Varney. Thank you, Senator. I think I bring two unique 
characteristics to the job to be able to do that. One is I was 
a former Federal Trade Commissioner. I am deeply committed to 
the Commission, that agency.
    Senator Coburn. That will help.
    Ms. Varney. And I am very close friends and a big admirer 
of the current Chairman, Jon Leibowitz, and he and I have had a 
chance to visit, and I think we are both committed to ensuring 
that there are no more jurisdictional squabbles or policy 
differences. These are things that are too important in our 
country to----
    Senator Coburn. The American people lose when that happens.
    Ms. Varney. I agree with you, Senator.
    Senator Coburn. They all lose.
    Ms. Varney. And I think the Chairman does also.
    Senator Coburn. Let me just have one other question. What 
does it mean to ``rebalance the legal and economic theories of 
antitrust law'' ? What do you mean by that? You said that in 
your testimony; you said it in your written testimony. I am not 
a lawyer so I have trouble with that. Would you explain to me 
what that literally means?
    Ms. Varney. Are you an economist?
    Senator Coburn. A former accountant, production manager, 
and a doctor, and a couple other things.
    Ms. Varney. I know you are.
    Senator Coburn. Some people say a politician, but not a 
very good one.
    [Laughter.]
    Ms. Varney. I just do not like to have conversations with 
economists because they are very good.
    I think that what we have seen in the last 8 years is that 
a lot of economic theory has been used to inhibit prosecuting 
mergers and other activity that may be impermissible. And when 
I am talking about rebalancing economic theory, I am talking 
about bringing new rigor to the economic analysis that 
underpins any prosecution.
    As I said, I think what we have seen, in the sort of 
shorthand, in the Chicago School analysis is a real reluctance 
for government to go forward and attempt to block mergers in 
the marketplace, and that is really what I mean when I talk 
about rebalancing economic theory.
    Senator Coburn. Okay. Thank you.
    On one other note, just an aside to get a commitment--and I 
have raised this with the FTC, with no response. The ophthalmic 
industry in this country today is controlled 60 percent by one 
company out of France. Nobody wants to do anything about it. 
People are paying 20 or 30 percent more than they should for 
products, and yet we have had no action on it whatsoever. So I 
would appreciate you looking into that, if you would, after you 
are confirmed.
    This is a question really for Mr. Breuer and Mr. West both. 
One of the fastest ways to help President Obama with the budget 
is to go after fraud in Medicare and Medicaid. It is about $120 
billion a year. And it would seem to me, since it is covered on 
both the civil and criminal, that almost a task force is needed 
because it is so egregious. And we are struggling with health 
care for Americans, but one of the reasons we is because there 
is such a large amount of fraud in the government-run programs.
    So I would hope that I would get a commitment from each of 
you that you would look at that, that that would be a focus of 
what you do and put that on there, because if you cut it in 
half, that is tremendous in terms of how we will leverage our 
ability to give health care to other Americans, if, in fact, 
you just cut that in half.
    Mr. Breuer. Senator, I could not agree more. It absolutely 
will be a priority and has to be. And should Mr. West and I 
both be confirmed, we have already spoken about coordinating 
and working very carefully in a number of areas, and this would 
seem to be one of the areas that we would work closely 
together.
    Senator Coburn. Mr. West.
    Mr. West. Absolutely, I would agree, Senator, and I agree 
with your remarks. And I think it is one of the areas that, if 
confirmed, I look forward to talking to some of the career 
professionals in the Department who are working on these very 
cases to try to do exactly what you suggest.
    Senator Coburn. The reason I am interested in that is 
aggressive prosecution of that changes behavior. So you do not 
have to find it all. All you have to do is scare them, and that 
will change a significant amount of behavior.
    Mr. Breuer, one other question. I have read your resume and 
read your testimony and read the history. You were a prosecutor 
for 4 years at the district attorney's office in Manhattan. How 
many people in your range of experience have you had under you 
to manage in the past?
    Mr. Breuer. Senator, I have had smaller groups to manage. I 
have been the vice chair of one of America's leading pro bono 
groups, and I am proud to say our firm's pro bono group has 
always been rated one of the top in the Nation.
    I, of course, have been the co-chair of leading one of the 
Nation's leading white-collar investigations practices. And I 
have led teams such as when I was in the White House.
    Senator, I have also been a teacher and a coach, and I 
think I would bring my life's experience to managing. I think I 
am a good delegator, but I would like to think I am a good 
leader by example. And so I am the first to acknowledge, 
Senator, I have not led something like the Civil Division, but 
I think my life's work puts me in good stead.
    Senator Coburn. But it is going to be a big challenge, 
there is no question.
    Mr. Breuer. It will, and a great honor, and I will give it 
all of my energies.
    Senator Coburn. All right. Thank you very much.
    Thank you, Mr. Chairman.
    Senator Kohl. Thank you, Senator Coburn.
    Senator Feingold.
    Senator Feingold. I thank the Chair, and I want to 
congratulate all the nominees and wish you well. I have some 
questions for Ms. Varney.
    Ms. Varney, the outgoing administration has done serious 
damage to competition in many industries through a lack of 
enforcement and prosecutions for antitrust violations, lax 
merger review, and also generally favoring powerful interests 
relative to consumers and small entities. I want to raise some 
issues with you in the realm of agriculture, and especially 
dairy, but some of these concerns clearly have broader 
implications as well.
    In September 2008, the Department issued a troubling report 
on single-firm monopoly conduct. The majority of the FTC 
immediately issued a statement calling the report ``a blueprint 
for radically weakened enforcement of Section 2 of the Sherman 
Act.'' The FTC Commissioners described the report as being 
``chiefly concerned with firms that enjoy monopoly or near-
monopoly power and prescribes a legal regime that places these 
firms' interests ahead of the interests of consumers. At almost 
every turn, the Department would place a thumb on the scale in 
favor of firms with monopoly or near-monopoly power and against 
equally significant stakeholders.''
    The report and the FTC's reaction confirm my concern that 
misplaced priorities have been influencing Antitrust Division 
decisions for some time. Will you repudiate the previous DOJ 
report? What other repairs are necessary to correct 
misrepresentations of the antitrust statutes that may not have 
been as formal? And, also, will you take a fresh look at cases 
that were either closed with no action or that have been left 
open indefinitely?
    Ms. Varney. Senator, one of the first things that I will 
do, if I am confirmed, is sit down with my colleagues at the 
Department of Justice and the Federal Trade Commission to go 
over that Section 2 report. I have an open mind about whether 
or not it is amended or withdrawn or reworked. I agree that its 
conclusions are not appropriate. I do not support the 
conclusions in the Section 2 report, and I would like a little 
bit of time after I get there to see what our first moves will 
be on that, and I would like to consult with the Federal Trade 
Commission on that as well.
    Senator Feingold. Okay. Since I was first elected to the 
U.S. Senate in 1992, there has been significant consolidation 
of practically the entire agricultural industry. According to 
the National Farmers Unions periodic reports on the 
concentration of agricultural markets in that time period, beef 
packers, pork packers, broilers, turkeys, milling, soybean 
crushing, dairy processing, dairy cooperatives, and the U.S. 
food retailing have all seen significant increases in market 
share among the largest firms. Moreover, farmers are not only 
threatened by monopsony as their processors consolidate, but 
similar concentration is also occurring in their suppliers, 
such as seed companies. Congress has had more hearings 
regarding antitrust concerns in agriculture than any other 
area, but the DOJ Antitrust Division has brought no enforcement 
actions against anticompetitive practices and no criminal 
enforcement actions.
    Before last year's challenge of the JBS-National merger, it 
had been 10 years since the last challenge of a merger between 
agricultural processors. What will you do, if confirmed, to 
change that record?
    Ms. Varney. Senator, as you and I have had a chance to 
visit on, agriculture will be a priority of mine. One of my 
first jobs ever was working for the farm workers, and I 
understand the relationship between the labor that goes into 
creating food and the chain through which it is brought to the 
American consumer's table.
    Growing up in a large family of six children, I understand 
exactly what it means to make your food dollars stretch to feed 
growing families. And my family in Ireland--my grandparents 
came from Ireland--were all farmers there. So I think I cover 
all the chain.
    I do intend to go with the Department of Justice through 
the activity that they have undertaken and not undertaken in 
the agricultural sector in the last 8 years and reinvigorate 
the reviews that we need to bring in all of the sectors of the 
agriculture industry that you have outlined.
    Senator Feingold. I think some of the mergers in the 
agriculture industry that were approved over the past 8 years 
have caused significant competitive harm, but that is just my 
opinion.
    Are you open to conducting retrospective studies of the 
impacts of approved mergers and monitoring any of the recently 
approved mergers, such as the Monsanto-Delta Pine merger?
    Ms. Varney. Absolutely.
    Senator Feingold. Okay. Thank you. My understanding is that 
when the Dean-Suiza merger was considered by the DOJ, the 
companies were allowed to create a private agreement and not a 
consent decree. Professor Carstensen described in his earlier 
testimony before the Committee last year that the firms quickly 
found a way around this private agreement, and without a 
consent decree, it was difficult to prevent.
    Do you plan on seeking formal consent decrees instead of 
relying on gentlemen's agreements, if confirmed?
    Ms. Varney. Well, let me start with the premise, Senator, 
if a merger is anticompetitive, I intend to block it. If a 
merger has an anticompetitive aspect that can be remedied, it 
will, of course, follow the procedures outlined in the Tunney 
Act so that we do create a consent, that the consent goes 
before the courts, and that the public has a chance to comment 
on that before it becomes final.
    Senator Feingold. Dairy farmers have recently seen the 
price that they receive drop by 40 to 50 percent, as we have 
talked about this morning. At the same time, the price of milk 
and other dairy products at the retail level is not exhibiting 
such movement. A previous GAO report showed that these retail 
prices were ``sticky'' and did not transmit price decreases to 
consumers even though the wholesale price increases were 
transmitted.
    Besides being unfair to farmers and consumers, this problem 
also means that the supply and demand signals are not sent. In 
this case, consumers are never signaled to increase dairy 
consumption by lower prices, and the surpluses at the wholesale 
level and low farm prices last longer than they should.
    Is there anything the Antitrust Division can do in this 
case?
    Ms. Varney. I think there is, Senator. I think that, as you 
point out, the economic indicators do not seem to align here, 
and I think a pretty thorough undertaking, trying to understand 
what is going on in that industry and taking action as 
appropriate is called for.
    Senator Feingold. Finally, several antitrust experts, 
including David Balto from the Center for American Progress 
and, again, Professor Carstensen from UW Law School, have 
called for a task force on competition issues that includes 
representatives of the USDA, DOJ, and FTC. During Senate 
consideration of the farm bill, I proposed an amendment that 
would have encouraged similar coordination. These experts have 
suggested that the task force should take evidence to hold 
hearings along with determining the full scope of the powers of 
the combined agencies under both DOJ authority and the USDA 
statutes to prevent price manipulation, refusals to deal on 
equal terms, and exclusive buying arrangements.
    Do you plan to reach out to other agencies with related 
enforcement powers, either formally or informally? And is this 
a possible expanded role for the so-called Special Counsel for 
Agriculture?
    Ms. Varney. Absolutely, Senator. If I am confirmed, when I 
get to DOJ, I really do want to understand what the Special 
Counsel's role is, what they have been doing, and what they can 
do. And as we have had a chance to talk about it, I think it is 
very important to reach across to other members of the 
government who have concurrent jurisdiction and interest and 
figure out a coordinated approach forward. So I do intend to do 
that.
    Senator Feingold. Thank you.
    Thank you, Mr. Chairman.
    Senator Kohl. Thank you very much, Senator Feingold.
    We have with us the Ranking Member, Senator Arlen Specter. 
Senator Specter.
    Senator Specter. Thank you, Mr. Chairman. Thank you for 
waiting until I was almost seated before calling on me.
    [Laughter.]
    Welcome to the Judiciary Committee, nominees. You have very 
important responsibilities ahead of you, if confirmed, and the 
paucity of members is not a reflection on the importance of 
your jobs but on the very heavy workloads here, with many, many 
obligations. At the moment, the omnibus appropriations bill is 
on the floor, and there are constituents--I have 12 million 
Pennsylvanians poised on the Mason-Dixon line ready to come to 
Washington at any given moment, and other Senators have similar 
responsibilities. So do not think that there is any lack of 
interest in what you are about to do.
    Mr. Breuer, you are the nominee for Assistant Attorney 
General in the Criminal Division, a very important role. The 
extent of white-collar crime is staggering in America today, 
which goes largely undetected and, when prosecuted and when 
convicted, too often in my opinion results in fines, which turn 
out to be a license to do business.
    I saw a note in the paper recently where Siemens 
Corporation was fined $1.7 billion, which looks like a lot of 
money on the surface but, when contrasted with an $87 billion 
figure which was in the story, boils down to a license to do 
business.
    We see some really phenomenal business practices being 
disclosed: Major insurance companies concluding that there be 
no claims and they have no funds or reserves to pay insurance 
claims; representations of value on corporate balance sheets 
which are not present, are fraudulent; a whole wave of conduct 
which has engulfed the United States and the world in 
tremendous economic problems.
    Can we have your assurances that, if you are confirmed, 
there will be a really tough line on examination of white-
collar crimes and firm recommendation for jail sentences as a 
deterrent?
    Mr. Breuer. Absolutely, Senator. Seeking out and 
prosecuting financial crime will absolutely be a priority, 
should I be fortunate enough to be confirmed. And I could not 
agree with you more, Senator, that in doing that, we have to 
follow the facts. Those who have acted criminally and those who 
have taken advantage and done some of the things that have 
brought us to the situation we are in now must realize that 
when you break the law, you will be held to account. And, 
Senator, when appropriate, we will absolutely aggressively seek 
not simply financial penalties but jail time as well.
    We will let the facts go where they are, Senator. We will 
aggressively prosecute them, and financial crime will be a very 
large priority.
    Senator Specter. Mr. Breuer, how long were you in the 
Manhattan district attorney's office?
    Mr. Breuer. Senator, I was fortunate enough to start my 
career there after graduating from Columbia Law School. As a 
New Yorker, I went there from 1985 to 1989. And since then, of 
course, Senator, I have----
    Senator Specter. How many jury trials did you have there?
    Mr. Breuer. Senator, I probably had roughly 20 jury trials 
while I was--15 to 20, closer to 20, I think, when I was in the 
Manhattan D.A.'s office.
    Senator Specter. What was the most important case you 
tried?
    Mr. Breuer. Well, I have tried a number of cases, Senator. 
In private practice, when the courts have asked, I have tried 
murder conspiracy cases. I have litigated some large False 
Claims Act cases. In the D.A.'s office, Senator, as a 
relatively young prosecutor, I prosecuted and tried a murder 
conspiracy case. I did domestic violence cases.
    Senator Specter. I do not want to interrupt you, but I do 
not have a whole lot of time. My briefing materials says you 
are probably best known for your representation of President 
Clinton during the impeachment trials. Why didn't your client 
appear during the course of the trial?
    Mr. Breuer. Senator, I was----
    Senator Specter. It is not funny, Ms. Vancey. It is a 
serious question.
    Mr. Breuer. Senator, I was very privileged to be one of the 
lawyers who----
    Senator Specter. Varney, rather. Pardon me. I had my 
glasses tilted.
    Go ahead.
    Mr. Breuer. Senator, I was very privileged to be one of the 
lawyers to represent the President of the United States, and, 
of course, in doing that, both the White House Counsel and the 
individual lawyers together worked----
    Senator Specter. Are you coming to the answer?
    Mr. Breuer. Well, Senator, as you can imagine, the answer 
to why the President did not come testify was given the way the 
procedures worked at that time, a decision was made in 
conjunction with the Senate and in conjunction with the 
managers----
    Senator Specter. You thought it would be wiser not to have 
him there?
    Mr. Breuer. Well, Senator, obviously I am not going to 
speak about internal discussions, but I think the fact----
    Senator Specter. I was not asking about internal 
discussions.
    Mr. Breuer. Senator, I would like to think that overall 
history reflects that the Senate impeachment hearing and trial 
was really a great testament to the brilliance of our Founders, 
and I think those, Senator, who worked on that believed that an 
appropriate and right outcome came and that the procedure 
worked.
    Senator Specter. Do you remember my question?
    Mr. Breuer. I do, Senator, and----
    Senator Specter. What was my question?
    Mr. Breuer. Senator, your question was: Why did the 
President not appear?
    Senator Specter. Yes. Why?
    Mr. Breuer. And, Senator, I cannot give you a more specific 
answer than I am right now.
    Senator Specter. Well, can you give me a non-specific 
answer?
    Mr. Breuer. Well, I think in considering the best 
representation of the President, those who were involved in 
that decision, Senator, candidly, I don't recall that I was one 
of those people. Presumably----
    Senator Specter. It was not up to you?
    Mr. Breuer. It was not up to me, Senator.
    Senator Specter. Well, that is a really good answer. Why 
didn't you start there?
    Mr. Breuer. Senator, if I could start over, I will give you 
that one.
    [Laughter.]
    Senator Specter. I will give you another aspect of that. 
Was there any consideration that, if called, he would take the 
privilege against self-incrimination? I am just giving you 
another chance because you wanted another question.
    Mr. Breuer. Senator, obviously, I was not involved in that 
decision. Obviously, I am--as I know you are, Senator--a strong 
believer in that tenet and in that principle.
    Senator Specter. Ms. Varney, the Antitrust Division is 
really a tremendously important position, and there are a lot 
of questions that I have for you. We will submit some in 
writing. I would like to ask one this afternoon, and that is on 
the subject of the National Football League. They have an 
antitrust exemption from 1961 legislation, but it does not 
cover cable or satellite. They have a monopoly on the teams, on 
the games. They have their own channel. They have the Thursday 
and Saturday night specials. A lot of Eagles and Steelers fans 
are excluded who watch cable television.
    Will you commit to take a close look at what they are doing 
to see if there is an antitrust violation?
    Ms. Varney. Yes, Senator. Absolutely I will.
    Senator Specter. Okay. Well, that is a good answer. I will 
not pursue it farther.
    I will note that there is a Third Circuit decision which 
suggests that there is an antitrust violation, enormous 
interest in what goes on there, and enormous concern about 
moving to pay television on all the big sporting events. And 
there are a great many issues which will come where we will 
have a chance to talk further.
    Mr. West, what do you think about the Supreme Court 
decision yesterday on alignments of voting districts?
    Mr. West. Well, Senator, I would--as you know, civil rights 
decisions are not really within the jurisdiction of the Civil 
Division, but I will tell you that I thought it was 
interesting. It is a close vote, 5-4. And I think it does give 
some guidance. A clear 50-percent rule now exists that courts 
and other litigators can follow.
    I would hesitate to comment on it any further because I do 
note that the Department has a case which is pending which may 
be implicated by some of the discussion in that case. It is----
    Senator Specter. Let me move to another subject so I do not 
abuse the red light too much here. What plans, if any, do you 
have for improving the operation of the Civil Division?
    Mr. West. Well, Senator, I appreciate that question. I 
think it begins----
    Senator Specter. I have noticed that virtually all the 
answers this time begin with, ``Well, Senator, I appreciate the 
question.'' Is that part of the murder boards?
    Mr. West. No. I actually appreciate this question.
    [Laughter.]
    Senator Specter. Could it both be part of the murder boards 
and really appreciating the question?
    Mr. West. It could be both, Senator, but I am candid with 
you, because the Civil Division, as you know, Senator, is one 
of the largest divisions in the Department of Justice, and the 
work there is very important. And I think it begins by 
respecting the judgments and opinions of the Civil Division 
career employees who are there who work very hard at their 
jobs.
    If I am fortunate enough to be confirmed, that will be the 
standard that I adhere to, and I think talking with them, 
making sure I am consulting with the client agents, the 
priorities that they have and others in the Department of 
Justice, my colleagues, the Attorney General, that will be the 
general approach I will take to managing that Division.
    Senator Specter. Just one final question for you, Mr. 
Breuer. We are deeply involved in health care now, looking for 
a way to pay for health care costs. And there is reportedly a 
tremendous amount of fraud in Medicaid and Medicare. I would 
like your commitment that you will make that a priority and, as 
I questioned you on white-collar crime generally, look toward 
criminal sanctions. Deterrence is not realistic if you are 
dealing with a domestic dispute or homicide or manslaughter--
involuntary manslaughter, voluntary manslaughter--but a white-
collar crime, it is. May we have your commitment that you will 
make that a high priority?
    Mr. Breuer. Senator, you do have that commitment.
    Senator Specter. And on government contracting as well, 
really in the entire civil field, to look forward for criminals 
sanctions as a deterrent to try to stop conduct of that sort.
    Mr. Breuer. Senator, I agree. I think criminal sanctions 
are a vital part and are essential for the requisite deterrence 
that is needed.
    Senator Specter. Mr. Chairman, thank you for presiding and 
for allowing me a little extra time here today. I did that for 
you once when I was Chairman.
    Senator Kohl. I think you have done an excellent job, as 
you always do, Mr. Specter.
    Senator Specter. Let me conclude by saying congratulations 
to you. You really have very outstanding records. Nice to see 
young lawyers with good records academically.
    The only final question I have for all three of you is: Why 
isn't there a Yale Law grad in the group?
    [Laughter.]
    Thank you, Mr. Chairman.
    Senator Kohl. Thank you, Senator Specter.
    Now we turn to Senator Ben Cardin.
    Senator Cardin. Thank you, Mr. Chairman. I also want to 
thank all of you for being willing to serve your country, and I 
particularly want to thank your families for the sacrifices 
that they have to make in order for you to be able to do what 
you want to do and help our country. So we thank you for that.
    I do have to follow up with Senator Specter in regards to 
the Ravens fans and the Redskins fans. I understand the issues 
with the NFL and with the antitrust laws, Ms. Varney, but I do 
think the fact that they operate a station and use that for 
their own benefit is something that needs to be looked at, and 
I would urge you to follow Senator Specter's request and keep 
us informed in regards to that matter.
    Mr. Breuer, I want to talk a little bit about the 
disparities within our criminal justice system. When we take a 
look at the incarceration rates at the national level, Federal 
level, and State courts, we find a major disparity based upon 
race. And when we look at some of our criminal statute, we look 
at the crack/powder cocaine issue, and we see a disparity that 
cannot be justified with the demographics of those who are 
tried and convicted and sentencing based upon race.
    So I just want to get your commitment to make the issue of 
fairness within our criminal justice system, one in which the 
people of the Nation feel that their laws are being enforced 
fairly, a high priority if you are confirmed to this position.
    Mr. Breuer. Senator, you have that. If our criminal justice 
system means anything, we must ensure that it is fair and 
impartial and that it is not unfair to certain segments of the 
population.
    Of course, your leadership and others' on the issues such 
as the crack cocaine disparity is clearly the kind of issue 
that needs a very, very hard loOkay. You have that commitment, 
Senator.
    Senator Cardin. There are things that we can do as far as 
the statutes are concerned, and we look forward to your 
recommendations in that regard. But there are also things that 
you can do directly through the management within the 
Department of Justice as well as working with our State 
prosecutors. And I would just urge you to take a very active 
role in that regard, and I thank you for your response.
    We do have a justice integrity bill which Senator Specter 
and I have filed that will allow for ten pilot programs to work 
within each of the U.S. Attorneys to try to deal with ways in 
which we can have more community confidence that ethnic 
considerations are not part of decisions as to whether to 
prosecute or not or the type of sentencing that is recommended.
    During the questioning of Attorney General Holder, we 
talked about that, and he actually had a model program when he 
was U.S. Attorney and favored that. I bring that to your 
attention because we are going to need your cooperation. I hope 
that legislation will move forward, but working with you to 
make sure that it is implemented in a way that we can get the 
best results in our community in support of what we are trying 
to do.
    Mr. Breuer. Absolutely, Senator.
    Senator Cardin. Thank you.
    Now, one other thing about your background that impressed 
me, and that is pro bono. I am going to ask Mr. West this 
question since it falls more within the Civil Division. We have 
been negligent over the last 20 years or so and falling down in 
providing support for legal services in America. We have not 
made much progress, and many Americans are denied access to our 
legal system because they cannot afford an attorney. And the 
legal service programs have been very much strapped.
    I really do think leadership is needed at the national 
level. We are going to try to take up a legal services 
reauthorization bill during this Congress. We may or may not be 
successful. But it seems to me, as the No. 1 civil attorney in 
our country, if you are confirmed, that you can play a very 
important role in getting this message out.
    So I want to hear from you your commitment to the integrity 
of our system, which includes that every American has access to 
a civil legal system.
    Mr. West. Well, Senator, you have my commitment on that, 
and it would be an honor because I am fortunate to come from a 
law firm and a tradition that reveres pro bono service, thinks 
it is important not only to the individuals that we provide 
services to, but to the profession. And that is something that 
I look forward to not only, if confirmed, working with the 
Department attorneys on, but working with you and others who 
have an interest in this area. I think it is very, very 
important to the profession, the legal profession.
    Senator Cardin. Thank you. I appreciate that.
    I wish you all good luck. You are signing up for, I think, 
an extremely important role in our justice system, and once 
again, I thank you all for being willing to serve your country.
    Thank you, Mr. Chairman.
    Senator Kohl. Thank you very much, Senator Cardin.
    One additional question for you, Ms. Varney. I believe that 
one of the best ways to contain health care costs and bring 
skyrocketing drug prices under control is the competition 
provided by generic drugs. In recent years, brand-name drug 
companies have paid millions of dollars to generic drug 
companies to settle patent cases in exchange for the generic 
drug company's agreement to keep competing generic drugs off 
the market.
    I have introduced legislation to make this practice 
illegal. It is the Federal Trade Commission that is responsible 
for policing competition in the prescription drug market. But 
the Justice Department appeared to go out of its way and hinder 
the FTC in this regard. Two recent court of appeals decisions 
have prevented the FTC from bringing legal actions to challenge 
these anticompetitive, anticonsumer patent settlements.
    When the FTC sought Supreme Court review of one of these 
lower court decisions in 2006, the Justice Department filed its 
own brief that opposed the FTC and argued that Supreme Court 
review was not warranted. I was disappointed that the Justice 
Department essentially lined up on the side of the parties 
making these deals, and in so doing opposed the FTC position.
    Ms. Varney, will you commit to work to change the Justice 
Department's position on these reverse payment cases?
    Ms. Varney. Yes, Senator, I do commit to work with the 
Department of Justice to align the Federal Trade Commission and 
the DOJ on the reverse payment issue. And if the courts 
continue to not reach the result that you and your Committee 
think is appropriate, then legislation may be necessary.
    Senator Kohl. So you are supportive----
    Ms. Varney. Yes, Senator.
    Senator Kohl [continued]. Of being in opposition to these 
reverse payments.
    Ms. Varney. Yes, Senator, I am.
    Senator Kohl. All right. One other question, and that is on 
something that is called ``the Charleston newspaper question.'' 
In 2007, in one of the very rare challenges to a merger or 
acquisition undertaken by the Justice Department in the last 
administration, the Department filed suit against the 
publishers of the Charleston Gazette, in Charleston, West 
Virginia. This lawsuit alleged that the publishers of the 
Charleston Gazette violated antitrust law when it sought in 
2004 to acquire full ownership of Charleston Newspapers, the 
company that publishes both the Gazette and the Charleston 
Daily Mail.
    Allegations have been raised that this case was improperly 
motivated by political considerations. The Charleston Gazette 
was a major critic of the Bush administration on its editorial 
pages. Critics of the case are puzzled by the basis for 
bringing the lawsuit, noting that both newspapers were already 
under common ownership prior to the 2004 buyout.
    You are not yet in office, I understand, at the Justice 
Department and, thus, are not privy to all the facts in this 
case. However, will you pledge to re-examine this case to 
ensure that it was not brought for any political motives and to 
ensure that it is based on sound applications of antitrust law?
    Ms. Varney. Absolutely, Senator. If confirmed, I will 
review the case.
    Senator Kohl. Okay. Thank you so much to one and all. We 
will keep the record open for just a bit to be sure that all 
letters and questions to this Committee have been received. And 
I would like to thank all of you for being here today. You have 
done a great job, and we wish you well. Thank you so much.
    [Whereupon, at 3:48 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]






NOMINATIONS OF DAVID F. HAMILTON, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR 
THE SEVENTH CIRCUIT; RONALD H. WEICH, NOMINEE TO BE ASSISTANT ATTORNEY 
GENERAL OF OFFICE OF LEGISLATIVE AFFAIRS, DEPARTMENT OF JUSTICE; AND R. 
   GIL KERLIKOWSKE, NOMINEE TO BE DIRECTOR OF NATIONAL DRUG CONTROL 
               POLICY, EXECUTIVE OFFICE OF THE PRESIDENT

                              ----------                              


                        WEDNESDAY, APRIL 1, 2009

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:30 p.m., room 
S-127, The Capitol, Hon. Patrick J. Leahy, Chairman of the 
Committee, presiding.
    Present: Senators Leahy, Schumer, Whitehouse, Klobuchar, 
Kaufman, and Specter.

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

    Chairman Leahy. It's now 2:30. I apologize to everybody for 
squeezing over here, but we're in the annual budget marathon. 
We're about to have a series of statements and votes upstairs.
    There are excellent nominees before us. David Hamilton, who 
is strongly supported by the two Senators from his home State, 
one of my best friends in the Senate and long-time friends 
because we go back a long time, the senior Republican of the 
Senate, Senator Lugar. Another distinguished Senator, Evan 
Bayh, from his State.
    We have Ron Weich to be Assistant Attorney General for 
Legislative Affairs. Ron is well-known to all of us and is a 
good friend. I like the fact that he's also a former 
prosecutor.
    I'm going to put in the record a letter from a former 
Chairman of this Committee, Senator Kennedy, on his behalf.
    [The Letter from Senator Kennedy appears as a submission 
for the record.]
    Senator Specter has agreed to add the nomination of R. Gil 
Kerlikowske. I'm not the first one to have trouble with that, 
Chief, who has 36 years of experience in law enforcement, 
including Chief of Police for the Seattle Police Department.
    So with that, I'll put my full statement in the record.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    I see the distinguished Majority Leader, Senator Reid, is 
here and I will yield first to Senator Reid, and then we'll go 
by seniority with the Senators who are here, following our 
normal practice.
    Senator Reid.

   PRESENTATION OF RONALD H. WEICH, NOMINEE TO BE ASSISTANT 
ATTORNEY GENERAL, OFFICE OF LEGISLATIVE AFFAIRS, DEPARTMENT OF 
 JUSTICE, BY HON. HARRY REID, A U.S. SENATOR FROM THE STATE OF 
                             NEVADA

    Senator Reid. Mr. Chairman, thank you very much for 
allowing me to testify. This is a very important occasion for 
me. As we all know, as Members of the Senate, we have the 
opportunity to work with the best people in the world, such 
dedicated people who are not out to see how much money they can 
make, but see what differences they can make in our society. 
We're all grateful for every one of these fine people who work 
with us.
    But there are a few, at least in my career, that stand out 
with their intellect, their dedication, and a work ethic that 
makes them indispensable. Ron Weich is one such person who has 
worked for me as part of my senior staff for 4 years. He's been 
by my side on every critical legal question I've had for these 
past 4 years.
    I recommend to this Committee Ron Weich for the position of 
Assistant Attorney General of our country. I do it with some 
measure of regret and sadness of not having him in my office, 
but with the absolute confidence that he'll serve our country 
and Attorney General Holder with the utmost skill and 
dedication.
    Ron, like his mom, who was one of the first women to 
graduate from Brooklyn Law School, began his career in the 
courtroom as a prosecutor. He attended Columbia University, 
Yale Law School. He tried cases involving violent crimes as 
Assistant District Attorney in Manhattan. There's no question 
that part of what makes Ron so effective is his real-world 
experience--not an academic, but real-world experience.
    This experience gives him the perspective to understand how 
to do legal policy and will actually work in practice. While 
many of his colleagues were entering the private sector, Ron 
spent almost his entire career in public service. I believe we 
are a better country because of people like Ron Weich.
    After his tenure in the District Attorney's Office, he 
served at the U.S. Sentencing Commission, and then for Senators 
Specter and Kennedy. Following his stint at a law firm, Ron 
returned to government service to work as my senior, and then 
chief, counsel, when I became the Democratic Leader in 2004.
    Ron's work for Senators Kennedy and Specter are indicative 
of the character and strength that will serve him well as 
Assistant Attorney General. He's built a foundation of trust 
and friendship with key Members of Congress, both Democrats and 
Republicans. For example, Ron was once--during debate--and 
worked closely with members of the Gang of 14, which consisted 
of 7 Democrats, 7 Republicans, as they negotiated a solution to 
a potential constitutional crisis. He also played the lead role 
in laying out ethics and lobbying reform legislation passed 
last year. In his new role, Ron will be responsive to requests 
from Democrats and Republicans. In the best tradition of 
Department of Justice, he will serve in a manner blind to 
partisanship, blind to politics, and--rule of law.
    Ron's parents, Robert and Cecile, his wife Julie, and 
daughters Sophie and Sarah are here today. I'm grateful that 
they've shared Ron with us through the years. In his new role, 
Ron Weich will play an integral role, an integral part, 
rebuilding the Department of Justice to the once-again place 
where all are equal under the law, all are protected by the 
law, and no one is above the law.
    Thank you very much, Mr. Chairman and members of the 
Committee.
    Chairman Leahy. Thank you. Thank you very much.
    Senator Reid. Thanks for allowing me to say a nice word 
about my friend, Ron.
    Chairman Leahy. Thank you. As I said, it's extraordinary 
that we're having it in here, but I recall, right after 9/11 we 
had one where one of President Bush's nominees--most of the 
hearing room was closed down, the House was closed down, and 
most people were leaving town. I convened a special hearing in 
here to accommodate President Bush and get his nominees 
through, and that's why we're doing it here, because of the 
vote.
    Senator Reid. Mr. Chairman, you being one of the longest-
serving members of the Appropriations Committee, you've been 
here a few times anyway.
    [Laughter.]
    Chairman Leahy. I have been here.
    Senator Reid. Could I be excused, Mr. Chairman?
    Chairman Leahy. Of course. Please.
    [Laughter.]

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

    Senator Specter. Thank you, Mr. Chairman.
    The Republican members of this Committee will not be 
participating because there has been insufficient time to 
prepare for this hearing. I ask that the letter I've sent 
asking for a postponement be made a part of the record, 
together with a letter signed by all the Republicans sent to 
you yesterday.
    Chairman Leahy. Without objection, it'll be part of the 
record.
    [The letters appear as a submission for the record.]
    Chairman Leahy. Also, the news article covering the first 
letter which appeared before I received the letter will also be 
made part of the record, and my response. I did not receive the 
letter, but yes it may be a part of the record. My response 
will be there, and the news articles detailing the letters 
before I received them will be made part of the record.
    [The information appears as a submission for the record.]
    Senator Specter. For all of those assembled, especially to 
the three nominees, I regret that there is a very strong 
conclusion that this position has to be taken. I personally 
find it very distasteful to raise these considerations in the 
Judiciary Committee, but I do so because of the conclusive 
nature of the record which shows that there has been grossly 
insufficient time to prepare.
    And I'll be very specific about it. The nomination of Judge 
Hamilton--and before I go on, let me say that the academic and 
professional records of these nominees is exemplary. Mr. Weich, 
especially close to me since he served so ably on my staff and 
I've watched him perform for Senator Kennedy and for the 
Majority Leader. Judge Hamilton, whose record I've examined, 
who, parenthetically, was a student with my son at Haverford. 
Shane Specter speaks very highly of you. I met with the nominee 
for Drug Czar and found him, on a personal level, Chief 
Kerlikowske, to be very able. But the chronology of events here 
really speaks for itself.
    Judge Hamilton's nomination was announced on March 17th. 
The Committee did not receive his questionnaire until March 
18th. The questionnaire was not completed until March 24th. 
Judge Hamilton has been a District Judge for almost 15 years 
and, according to his calculation, has authored roughly 1,150 
written opinions, over 9,500 pages, and has submitted 
approximately 2,000 pages of speeches, articles, and public 
policy papers.
    The nominations of the other individuals were also 
submitted within approximately 2 weeks. In the past, President 
Bush's nominees were submitted with Senators having, on 
average, 166 days to prepare for a hearing and 117 days to 
prepare for President Clinton's Circuit nominees. So on the 
procedural aspect, there has been just totally insufficient 
time to review these matters.
    I'm not going to make a show of these boxes, but if I were 
to stack up the papers, they would be about four feet high on 
the desk. But I'm not going to do that. There is a special 
concern about this time sequence in light of the fact that 
Judge Hamilton's nomination is the first, and we're going to 
have many, many more.
    The Constitution, as we all know, calls on the Senate to 
confirm. Indispensable to the confirmation process is an 
opportunity to examine the record of the individual, and that 
means a hearing, and that means questions and answers, and that 
means an opportunity to prepare.
    So on process, I think the record is conclusive that we 
haven't been given a reasonable amount of time. I regret that 
very much on the personal level with Senator Leahy. It is well 
known he and I have been working together since 1970 when were 
District Attorneys and worked coordinately on this Committee, 
more than 90 percent of the time cooperatively.
    Now, beyond the issue of procedure and process, there are 
also substantial questions to be asked. Staff has prepared 
summaries of some of the cases that Judge Hamilton has engaged 
in. These questions, I think, fairly--these cases fairly 
warrant an examination.
    But let me make a point: I don't necessarily disagree with 
anything you've done, Judge Hamilton. And that is not to say 
that I agree with it.
    [Laughter.]
    But I am raising issues for inquiry just by doing just 
that. But I can tell you that there are members of this 
Committee on the Republican side who do disagree with some of 
what you said, but I do not state that in raising these cases. 
Heinrichs v. Bosma. The case involved the practice of the 
Indiana General Assembly opening each session with a prayer. 
Judge Hamilton said that was unconstitutional; the Seventh 
Circuit reversed on the issue of--complex issue. A lot to be 
said on both sides.
    Women's Choice v. Newman. The rulings which you had handed 
down delayed a decision in that case for some 7 years. 
Ultimately, the Seventh Circuit reversed. Chairman Leahy is 
reminding me that there's a 5-minute rule, so I'll be as brief 
as I can.
    Grossbond v. Indianapolis, Marion County Building 
Authority, question of a Hanukkah menorah. The Seventh Circuit 
again reversed. Tough issues, First Amendment, require some 
examination.
    Go v. Prosecutor. The issue involved registration as a sex 
and violent offender, also involving the consent of the search. 
Another complicated issue.
    United States v. Woolsey. The statute required a life 
sentence. Life sentence was imposed, with the additional 
statement that you disagreed with it and hoped that it would be 
reversed by executive clemency. Okay. But it's worth some 
examination. United States v. Reinhart. You found a minimum 
mandatory sentence to be unjust, could not impose a just 
sentence in the case. Bolls Commas. Perhaps warranted, but 
certainly worthy of some inquiry.
    Very briefly as to Chief Kerlikowske, issues have been 
raised as to the Chief--again, let me compliment him on the 
meeting that I had with him--as to his policies on marijuana. 
Here again, I'm not saying I disagree, just an issue, but there 
are others who want to talk about it. An issue about not taking 
action against some rioters, some disagreement by 88 percent of 
the police union members. I'm not saying I disagree with you, 
but there are issues to be examined.
    Mr. Weich, some questions about his views on minimum 
sentences and the Unborn Victims of Violence Act. Here again, 
not making any comment one way or another, just that there are 
those who wish to be heard on that.
    Chairman Leahy. Well, we will hear first from Senator 
Lugar, and of course anybody can ask any question you want.
    I would note, parenthetically, there's going to be almost 4 
weeks before any of these nominations are even on the agenda, 
so there will be time for further meetings and for any follow-
up questions during those 4 weeks.
    Again, I thank people for coming down here, as they did 
when I accommodated President Bush right after 9/11 on nominees 
that he wanted to get through on very, very short notice.
    Senator Lugar.
    Senator Specter. Mr. Chairman, I hadn't quite finished.
    Chairman Leahy. I apologize. I'll let you go for your round 
of questions. I know you have more and I can't wait to hear it.
    Senator Specter. Well, I would like to just say one more 
thing, because I intend to leave. That is that it is common 
practice to have informal sessions with nominees. I would hope 
to not have to put you through eight or nine of those 
individually. I would hope that you would be willing, perhaps 
even volunteer, perhaps even urge another hearing, but I don't 
have the gavel anymore.
    Thank you.
    Chairman Leahy. Senator Lugar. I do have the gavel. Senator 
Lugar, please go ahead.

PRESENTATION OF DAVID HAMILTON NOMINEE TO BE U.S. CIRCUIT JUDGE 
 FOR THE SEVENTH CIRCUIT BY HON. RICHARD LUGAR, A U.S. SENATOR 
                   FROM THE STATE OF INDIANA

    Senator Lugar. Thank you, Mr. Chairman, for this 
opportunity to join my friend and colleague, Evan Bayh from 
Indiana, in introducing Judge David Hamilton, whom the 
President has nominated to serve in the U.S. Court of Appeals 
for the Seventh Circuit.
    Senator Bayh and I are proud that President Obama's first 
judicial nominee is from our State of Indiana and that he has 
chosen to elevate such an exceptionally talented jurist to the 
Federal appellate bench. I first had the pleasure of 
introducing David Hamilton to this Committee almost 15 years 
ago when he was nominated to the Federal District Court.
    I said then that the high quality of his education, legal 
experience, and character well prepared him for this position 
and expressed my belief that his keen intellect and strong 
legal background will make him a great judge. This confidence 
in David Hamilton's character and abilities was shared by all 
who knew him, regardless of political affiliation, throughout 
Indiana's legal and civic communities.
    Judge Hamilton's distinguished service on the U.S. District 
Court for the Southern District of Indiana, which he is now the 
Chief Judge, has more than vindicated that faith. I have known 
David Hamilton since his childhood. His father, Reverend 
Richard Hamilton, was our family's pastor at St. Luke's United 
Methodist Church in Indianapolis, where his mother was a 
soloist in the choir. Knowing firsthand his family's character 
and commitment to service, it has been no surprise to me that 
David's wife has borne witness to the values learned in his 
youth.
    He graduated with honors from Pennsylvania's Haverford 
College. While on a Fulbright scholarship to study in Germany 
at the University of Cologne, and earned his law degree at 
Yale. After clerking for Seventh Circuit Judge Richard Cudahy, 
David joined the Indianapolis office of Barnes & Thornberg, 
where he became a partner and acquired extensive litigation 
experience in the Indiana and Federal judicial systems.
    When our colleague, Senator Bayh, was elected Governor of 
Indiana he asked David to serve as his chief legal counsel. 
Among other achievements, in that role David supervised the 
overhaul of State ethics rules and guidelines and coordinated 
judicial and prosecutorial appointments.
    In the latter capacity, David worked closely with Judge 
John Tinder, then a Reagan appointee to the District bench, 
whom President Bush recently appointed to the Seventh Circuit 
with the unanimous support of this Committee and the full 
Senate.
    When David was nominated to the District Court, Judge 
Tinder wrote to me that ``David was meticulous in asking the 
difficult questions of, and about, judicial nominees,'' and 
that ``his approach to these duties typifies the deliberate and 
sensitive way in which he approaches matters in his 
professional life.'' The same is true of David's approach to 
his judicial duties. Leading members of the Indiana Bar 
testified to his brilliance and, more importantly, his 
character, dedication, and fairness.
    David Hamilton is the type of lawyer and the type of person 
one wants to see on the Federal bench. His colleagues on the 
Southern District of Indiana bench, a talented, exceptionally 
collegial group from both parties, unanimously endorsed these 
conclusions.
    Allow me to close with a few further thoughts. Members may 
recall when I introduce now-Chief Justice Roberts to this 
Committee in 2005. My concern is that today's Federal judiciary 
is seen by many as a political branch, with the confirmation 
process often accompanied by the same over-simplification and 
the sources that are disturbing even in campaigns for offices 
that are, in fact, political.
    This phenomenon is most pronounced at the Supreme Court 
level and traces to several causes that I'll not try to address 
today, but I mention it, however, to underscore my commitment 
to a different view of judicial nominations which I believe 
comports with the proper role of the judiciary in our 
constitutional framework. I do not view our Federal courts as 
the forum for resolving political disputes that the legislative 
and executive branches cannot, or do not, want to resolve.
    Our founders warned, in words quoted in my statement at the 
time of Chief Justice Roberts' nomination, against allowing 
``the pestilential breadth of faction to poison the fountains 
of justice,'' which they knew would stifle the voice both of 
law and of equity.
    This is why I believe our confirmation decisions should not 
be based on partisan considerations, much less on how we hope 
or predict a given judicial nominee will vote on a particular 
issue of public moment or controversy, and instead try to 
evaluate judicial candidates on whether they have the requisite 
intellect, experience, character, and temperament that 
Americans deserve from their judges, and also on whether they 
indeed appreciate the vital, and yet vitally limited, role of 
the Federal judiciary faithfully to interpret and apply our 
laws rather than working to impose their own policy views.
    I support Judge Hamilton's nomination, and do so 
enthusiastically because he is superbly qualified under both 
sets of criteria.
    Finally, permit me to thank my colleague from Indiana on 
the thoughtful, cooperative, merit-driven attitude that has 
marked his own approach to recommending prospective judicial 
nominees from our State of Indiana. The two most recent 
examples are a strong support for President Bush's nomination 
of Judge Tinder for the Seventh Circuit, and of Judge William 
Lawrence for the Southern District of Indiana.
    I am confident that Senator Bayh and I will continue to 
approach nominations by President Obama in the spirit that 
brings us before you today, and I thank you very much.
    Chairman Leahy. Thank you very much.
    Senator Bayh.

PRESENTATION OF DAVID HAMILTON NOMINEE TO BE U.S. CIRCUIT JUDGE 
FOR THE SEVENTH CIRCUIT BY HON. EVAN BAYH, A U.S. SENATOR FROM 
                      THE STATE OF INDIANA

    Senator Bayh. Thank you, Chairman Leahy. I've had an 
opportunity----
    Chairman Leahy. Allow me to mention, all Senators, I know 
you've got a million other things. So if a Senator speaks and 
then leaves--a Senator speaks first and then leaves, that 
doesn't mean they no longer support you.
    [Laughter.]
    Senator Bayh. I know my friend and colleague has a busy 
schedule, but Dick, before you have to go, I just want to thank 
and commend you for that very thoughtful and eloquent 
statement. I, too, want to thank you for the exemplary manner 
in which you handled judicial nominations under President Bush. 
The spirit of cooperation, comity, consultation is one that I 
fully intend to continue throughout our service together. So, I 
thank you. Thank you for all of that, and so much more.
    And Mr. Chairman, I have had an opportunity before to tell 
you how much I appreciate being before your Committee once 
again. It's a Committee that my father had the privilege of 
serving on for 18 years.
    Chairman Leahy. And chaired.
    Senator Bayh. Indeed. So there's always been a fond spot in 
the Bayh family heart for the Judiciary Committee.
    I am pleased, Mr. Chairman, to be before you again and to 
have this opportunity to introduce an individual for whom I 
have the greatest respect and admiration, Judge David Hamilton.
    Before I speak to Judge Hamilton's qualifications, I would 
like to comment briefly on the judicial nominations process 
generally. In my view, this process has too often been consumed 
by ideological conflict and partisan acrimony. During the last 
Congress, I was proud to work with Senator Lugar to recommend 
John Tinder as a bipartisan, outstanding consensus nominee for 
the Seventh Circuit Court of Appeals.
    Judge Tinder was nominated by President Bush and 
unanimously confirmed by the U.S. Senate by a vote of 93:0. It 
is my hope that Judge Tinder's confirmation would serve as an 
example of the benefits of nominating qualified, non-
ideological jurists to the Federal bench.
    In selecting Judge Hamilton as his first judicial nominee, 
President Obama has demonstrated that he also appreciates the 
benefits of this approach. I was proud to once again join with 
Senator Lugar to recommend Judge Hamilton to President Obama. I 
hope that going forward other Senators will adopt what we call 
``the Hoosier approach,'' working together to select consensus 
nominees.
    On the merits, Judge Hamilton is an accomplished jurist who 
is well-qualified to be elevated to the Seventh Circuit Court 
of Appeals. He has served with distinction as a U.S. District 
Judge for almost 15 years, during which time he has presided 
over approximately 8,000 cases.
    Since January of 2008, he has served as the Chief Judge of 
the Southern District of Indiana, where he's been widely 
praised for his effective leadership style. Throughout his 
career, Judge Hamilton has demonstrated the highest ethical 
standards and a firm commitment to applying our country's laws 
fairly and faithfully.
    In recommending Judge Hamilton I have the benefit of being 
able to speak from personal experience, as I had the 
opportunity to work closely with him while I was Governor of 
our State. In his role as counsel to the Governor, Judge 
Hamilton helped me to craft bipartisan solutions to some of the 
most pressing problems facing our State.
    In particular, he helped to favorably resolve several major 
lawsuits that threatened our State budget and drafted a tough 
new ethics policy to ensure that our State government was 
operating openly and honestly. In addition to his insightful 
legal analysis, I could always count on David for his sound 
judgment and common-sense Hoosier values he learned growing up 
in Southern Indiana.
    During his service in State government, Judge Hamilton also 
developed a deep appreciation for the separation of powers and 
the appropriate role of the different branches of government. 
If confirmed, Judge Hamilton will bring to the Seventh Circuit 
a unique understanding of the important role of the States in 
the Federal system and will be ever mindful of the appropriate 
role of the Federal judiciary. He understands that the 
appropriate role for a judge is to interpret our laws, not to 
write them.
    On a personal note, I have known Judge Hamilton for over 20 
years. I know him to be a devoted husband to his wife and a 
loving father to his two daughters. He is the nephew of former 
Congressman Lee Hamilton, and the embodiment of good judicial 
temperament, intellect, and even-handedness. I have high 
confidence that, if confirmed, Judge Hamilton will be a superb 
addition to the Seventh Circuit Court of Appeals and I am 
pleased to give him my highest recommendation.
    Mr. Chairman and other members of the Committee, it is my 
distinct pleasure to present for your consideration Judge David 
Hamilton.
    Chairman Leahy. Well, thank you. Thank you very much.
    We have Senator Murray. You're here to speak for the Chief, 
I understand.
    Senator Murray. I am. And I can say his name.
    [Laughter.]
    Chairman Leahy. I have a feeling that when I call up the 
nominations at the time of the mark-up, however I pronounce his 
name will be acceptable to the Chief.
    [Laughter.]
    Senator Murray. I am sure you are correct.

 PRSENTATION OF R. GIL KERLIKOWSKI, NOMINEE TO BE DIRECTOR OF 
NATIONAL DRUG CONTROL POLICY, EXECTIVE OFFICE OF THE PERSEDENT, 
    BY HON. PATTY MURRAY, A U.S. SENATOR FROM THE STATE OF 
                           WASHINGTON

    Senator Murray. Mr. Chairman, thank you very much. It 
really is my honor to be here, along with Senator Cantwell, to 
introduce to you Gil Kerlikowske, who's the Chief of the 
Seattle Police Department, at this very important hearing. I 
want to welcome Chief Kerlikowske and his wife, Anna, who is 
with him as well, and congratulate his entire family on this 
nomination for this very important office.
    I also want to thank the Chief and his family for accepting 
this responsibility at, really, this important time in our 
Nation's history. So, thank you very much to both of you.
    Mr. Chairman, we know that the next ONDCP Director is going 
to face a number of key challenges. He will play a key role in 
addressing the drug-related violence in Mexico along the 
Southwest border. We know from history that as the economy 
falls, crime rises and it is growing at the same time that law 
enforcement agencies across our country are facing painful 
cutbacks and greater strains on their personnel and resources.
    Law enforcement from all different levels has to work 
smarter, forge new relationships, and leverage the resources 
that they do have. Mr. Chairman, Gil Kerlikowske is the right 
man to address these challenges. He brings a fresh, new 
perspective to the job as the Nation's Drug Czar. He is a cop's 
cop and his perspective was shaped controlling the streets in 
Florida, New York, and Washington State.
    Along the way he has helped thousands of people touched by 
violence and drugs. He and the people he has led have been on 
the front lines of our Nation's war against illicit narcotics 
and in keeping our community safe. He'll bring that hands-on 
perspective to ONDCP.
    Chief Kerlikowske understands the importance of partnership 
between ONDCP and our State and local law enforcement because 
he has been on the local level. As the head of the Major Cities 
Chiefs Organization, which represents the 63 largest police 
departments in the United States, he sees the current problems 
facing cities across the country.
    I've seen his work firsthand as the Seattle Police Chief. 
This past December, under Chief Kerlikowske's leadership, the 
Seattle Police Department, in cooperation with county, State, 
and Federal law enforcement agencies was able to bust a drug 
ring that stretched from Mexico, to Idaho, to Seattle.
    Chief Kerlikowske worked cooperatively to create a regional 
response to gang violence in Seattle and in King County. He 
built a coalition with the King County Sheriff's Office, other 
King County police chiefs, the Washington Department of 
Corrections, ATF, and other community leaders to tackle 
persistent gang violence in our neighborhoods. These multi-
agency Federal local partnerships require cooperation and 
compromise.
    They require a leader with Chief Kerlikowske's experience 
to bring them together. Local police chiefs and sheriffs have 
told me they are sorry to see him go, but the Nation is gaining 
a true innovator in Gil Kerlikowske. I know he's going to 
continue to work on these relationships with State and local 
law enforcement across the country, and this approach will make 
all of America's communities safer.
    Mr. Chairman, I want to add in ending here that he also 
understands that the drug war will not be won on the streets. 
For the past 9 years, he has been the national board chairman 
for the group, Fight Crime Invest in Kids. As this Committee 
knows, this is a group of police chiefs, sheriffs, prosecutors, 
and other law enforcement leaders who could easily be fighting 
only for more cops, more jails, and longer prison sentences, 
but instead, under the guidance of Gil Kerlikowske, they are 
working on prevention. They are fighting for early childhood 
intervention funding, after-school programs, and efforts to 
prevent child abuse as an effective way to fight crime. He 
knows that the best way to end the use of drugs and spread of 
crime is to prevent it.
    He will bring this commonsense thinking to ONDCP. He has 
served the people of my State well and he's going to serve the 
people of the Nation well. I'm very proud to support his 
confirmation.
    Chairman Leahy. Thank you. Chief Kerlikowske's concepts 
were cheered in a hearing in Vermont recently, in St. Albans, 
Vermont.
    Senator Cantwell, you are here also to speak for Chief 
Kerlikowske.

 PRSENTATION OF R. GIL KERLIKOWSKI, NOMINEE TO BE DIRECTOR OF 
     NATIONAL DRUG CONTROL POLICY, EXECUTIVE OFFICE OF THE 
  PRESIDENT, BY HON. MARIA CANTWELL, A U.S. SENATOR FROM THE 
                      STATE OF WASHINGTON

    Senator Cantwell. Thank you, Mr. Chairman.
    Chairman Leahy. I just wanted to show you----
    [Laughter.]
    Senator Cantwell. Thank you, Mr. Chairman and members of 
the Committee. Thank you for holding this important hearing 
today. I, too, am very pleased to be here, along with my 
colleague Senator Murray, to introduce Seattle Police Chief Gil 
Kerlikowske.
    I urge my colleagues to swiftly confirm him for the next 
Director of National Drug Control Policy. I have known Gil for 
almost a decade, and in his 36 years in law enforcement he has 
demonstrated that to fight drugs, we must break down the walls 
between prevention, treatment, and enforcement.
    One of the reasons why he was hired in Seattle was because 
of his expertise in community policing. During his time as 
Deputy Director of COPS, Gil launched a critical program, like 
the COPS Meth Initiative and the COPS in Schools programs, and 
the Tribal Resource Grant Program. As a member of the High-
Intensity Drug Trafficking Area executive board, he was a vocal 
advocate for the resources needed to deal with the meth threat.
    Thanks to the hard work of Gil in Washington State, 
Washington State had a sharp decrease in domestic meth 
production. In 2001, Washington State had more than 1,400 
clandestine lab seizures; in 2008, that number plummeted to 
only 26.
    As Chief of the Seattle Police Department for over 8 years, 
Gil has been a leader in transforming the way that we combat 
crime in the 21st century. In 2004, he established a 
partnership between the Seattle Police Department and Interpol 
to help combat local crime with international ties, such as 
human trafficking and drug smuggling operations. He will bring 
this kind of comprehensive approach to his work combatting drug 
crimes, working with Federal, State, local, and international 
partners.
    Today we face an increasingly globalized threat from drug 
trafficking organizations that are going to take a new and 
collaborative and comprehensive approach. This is evident 
clearly in Mexico, as the stories are coming out daily. 
According to the U.S. Director of National Intelligence, Mexico 
is a conduit for cocaine bound for the United States and it is 
the chief foreign supplier of methamphetamine to the U.S. 
market.
    Critical networks in Asia and Europe are supplying the 
Mexican drug cartels with pseudoephedrine and other precursor 
chemicals they need to mass-produce meth. Even as Federal, 
State, and local law enforcement shut down meth labs across my 
State and through the country, meth and other illegal drugs 
continue to flow across the borders and be distributed by local 
street gangs. Gil Kerlikowske knows you need a comprehensive 
approach that must address both supply and demand.
    The Obama administration is recognizing the need for 
decisive action, and just last week the Department of Homeland 
Security Secretary Napolitano announced that hundreds of 
Federal agents and high-tech surveillance equipment will be 
sent to the Southwest to stop the flow of drugs and guns. I 
know that Gil Kerlikowske will work closely with Secretary 
Napolitano, Secretary of State Clinton, and Attorney General 
Holder, as well as other local officials to meet these 
challenges head on.
    The U.S. can make a huge difference, both at home and 
abroad, and I saw this firsthand when I traveled to Colombia in 
2007 with many of my Senate colleagues to see the progress that 
has been made in fighting drug trafficking organizations with 
the assistance of the United States. Even though Colombia still 
faces serious challenges, the murder rate in Medellin is lower 
than Washington, DC today.
    Our experience in Colombia has shown it is going to take a 
comprehensive strategy involving stakeholders at every level 
and participation around the world to end the flow of drugs 
that have caused such a devastating impact on our communities. 
I am confident that Gil Kerlikowske will bring the 
collaborative approach needed to succeed. He is the right man 
for this job to be the cop on this beat, and I urge my 
colleagues to quickly confirm him and send him to the floor.
    I thank the Chair for this opportunity.
    Chairman Leahy. Thank you very much. We have a number of 
votes starting very soon and we'll probably be on the floor. 
But let me ask Judge Hamilton, Ron Weich, and Chief Kerlikowske 
to stand and raise their right hands.
    [Whereupon, the witnesses were duly sworn.]
    Chairman Leahy. Gentlemen, this is different than we 
normally do. I'm going to ask all three of you to step forward 
and I'll let the staff change the----
    As Mr. Weich can remember, we were crowding right in here 
to expedite some--the rest of the building was closed down. We 
had more bipartisanship I guess at that time because 
Republicans didn't object to hurrying. I guess it's only more 
recently. I'm sure it has nothing to do with the change in the 
presidency.
    But Judge, you have members of your family here, do you 
not?
    Judge Hamilton. I do.
    Chairman Leahy. Could you introduce them so it will be, 
someday, in the Hamilton archives?
    [Laughter.]

 STATEMENT OF DAVID HAMILTON, NOMINEE TO BE U.S. CIRCUIT JUDGE 
                    FOR THE SEVENTH CIRCUIT

    Judge Hamilton. Thank you very much, Mr. Chairman. It's a 
pleasure to be here. I'd also like to thank Senators Bayh and 
Lugar for their kind words of support and many years of 
friendship and support. I thank the President for his 
confidence in me.
    With me today are many friends and family who have traveled 
here from Indiana: My wife, Inge van der Cruysse is here; my 
father, Dick Hamilton; my sister, Lisa Hamilton and brother, 
John Hamilton, are here. I wish that my daughters Janet and 
Debbie could be here, but work and studying in the Nation of 
Turkey has kept them away. And I wish my late mother, Anna Lee 
Hamilton----
    Also with me are my aunt, Nancy Hamilton; my cousin, Sarah 
Schmidt; representatives from my wife's late husband's family 
who have adopted me as an extra in-law, Pat and Russ van 
Antwerpen and Kristin Gort; and also my long-term assistant, 
Jenny McGinnis; and my recently retired courtroom deputy, Chuck 
Bruess, are here. There are also many other friends and former 
or current law clerks and staff members who have made the trip. 
I'm grateful for all of them for having come here.
    Chairman Leahy. Judge, while we're here, I hope you have a 
chance of going to see the cherry blossoms, which has nothing 
to do with your--yesterday my wife and I were there right after 
6 in the morning when the sun came up, there weren't that many 
people around, and just walked around there for an hour before 
I came up here. It is a lovely and unique time of the year. 
It's almost a cliche when people talk about cherry blossom 
time, but it is a very, very nice and very good time.
    Judge, I've tried a lot of cases, as have many others on 
this Committee. I've also argued a lot of appellate cases, as 
have many others on this Committee. We have different judges. 
It's something you don't really--you can't write on a judge's 
handbook about how they should react, but I remember those 
judges who treated everybody who came before them with 
courtesy, treated everybody the same. When you walked in, you 
did not think, this is predetermined because of who I am, 
because of my background and my political party, or anything 
else. Can you assure us that you will be that type of judge?
    Judge Hamilton. I can. And I hope that the record that I've 
built up over the last 14-plus years as a District Judge 
reinforces that confidence.
    Chairman Leahy. Do you also understand the sense of having 
to recuse one's self depending upon a case? Can you give us 
some ideas of some of the things that might cause you 
specifically to recuse yourself from a case?
    Judge Hamilton. Well, recusing is governed by Section 455 
of the Judicial Code, a statute I'm familiar with, along with 
the Codes of Conduct for the Federal Courts. We go through 
elaborate processes for disclosure of any financial interests 
we might have and parties that might come before us, and any 
kind of financial interest requires recusal. We have automatic 
procedures in place in our court, and I think in most other 
Federal courts, to prevent a judge from being assigned to a 
party--to a case in which a party would require that judge's 
recusal. So we try to minimize that as much as possible.
    There are--there have been situations earlier in my career 
where I had to recuse in a number of cases because of pending 
litigation or ongoing legal relationships that stemmed from my 
work in private practice and with State government. When I 
became a District Judge I had proposed a method for dealing 
with that to the Judicial Conference Committee on Codes of 
Conduct. They endorsed the approach that I took, I followed it, 
and now recusals are pretty few and far between.
    Chairman Leahy. It's been a few years since you were in 
private practice.
    Judge Hamilton. Yes, sir.
    Chairman Leahy. But you could have one if you had----
    Judge Hamilton. There are family relationships.
    Chairman Leahy [continued]. Party to--financial.
    Judge Hamilton. My wife is a--my wife practices law, my 
brother-in-law practices law in the Federal courts within the 
Seventh Circuit, and obviously I would be recused from any case 
in which they were involved.
    Chairman Leahy. How many members are in the Seventh 
Circuit?
    Judge Hamilton. There are 11 active judge seats.
    Chairman Leahy. So it's not as though the court comes to a 
screeching halt if you recuse yourself.
    Judge Hamilton. No.
    Chairman Leahy. And would it be safe to say it's easy to 
err on the side of caution in those kind of things?
    Judge Hamilton. It is. I believe the Seventh Circuit also 
has a similar program in the Clerk's Office where specific 
parties or lawyers can be identified so a case involving those 
parties' lawyers will never be assigned to the judge in the 
first place.
    Chairman Leahy. Unlike the District Court where you're 
bound by the stare decisis not only of the Circuit, but in the 
U.S. Supreme Court you only have the Supreme Court for stare 
decisis. But also, of course, a Circuit Court can reverse their 
own decisions.
    Would you agree with me that for a Circuit Court to change 
their own precedent would require a pretty significant 
situation or a pretty significant shift in the law throughout 
the country?
    Judge Hamilton. It would have to be pretty rare. I agree 
with that, Mr. Chairman. I can think of a couple of examples 
recently in which the Seventh Circuit has done so, where the 
Seventh Circuit had decided a particular issue under a 
relatively new statute and no other circuits followed it. The 
Seventh Circuit, upon--when asked to reconsider those 
questions, has gone back and decided, all right, we'll come in 
line with everyone else.
    Chairman Leahy. But depending upon what the circumstances 
were, it would reflect----
    Judge Hamilton. Exactly.
    Chairman Leahy [continued]. This happening in the rest of 
the country.
    Judge Hamilton. That, or an intervening Supreme Court 
decision.
    Chairman Leahy. And of course if there is a Supreme Court 
decision on--it's very easy
    Judge Hamilton. It is.
    Chairman Leahy. Thank you.
    Senator Klobuchar.
    Senator Klobuchar. Thank you very much.
    Welcome to all three of you. I can pronounce your name, 
Chief, having known you for a while. But Judge Hamilton----
    Chairman Leahy. That's going to be the new test.
    [Laughter.]
    Senator Klobuchar. Those ``K'' names that are long are 
always difficult.
    [Laughter.]
    Thank you very much. I was just reading up--as I was 
listening to our colleague, to Senator Specter--just about, in 
fact, some of the background. When someone did look at your 
whole record as opposed to picking out a few cases that they 
may have disagreed with, I'm sure all of us would disagree with 
individual cases that a judge--decisions a judge made here and 
there.
    But as Senator Specter pointed out, you presided over the 
closing of approximately 8,000 cases, which I think, at the 
very least, shows you're quite efficient. Of that number, 
you've presided over approximately 3,000 cases that went to 
verdict or judgment based on trial and/or decision you made, 
with roughly 1,150 written opinions. The American Bar 
Association, which did an exhaustive examination of your 
credentials, your record, and your temperament, concluded that 
you deserve the highest rating of Well Qualified.
    It's my understanding, in response to some of the issues 
raised with a case here or there, to get that rating the ABA 
must find the nominee to be at the top of the legal profession, 
have outstanding legal ability, breadth of experience, and the 
highest reputation for integrity, and demonstrate the capacity 
for sound judicial temperament.
    So when the group that has done this exhaustive examination 
of your record gave you the highest rating unanimously, I just 
question--well, everyone has a right to question a judge's 
decisions here and there, and I'm glad that our colleagues 
appear to want to talk to you about these individually. I just 
think that that means a lot to me to read something like that.
    But I just had one or two questions. One, was I know Chief 
Justice Roberts, at his confirmation hearing, talked about how 
he would like to see the Supreme Court make decisions and 
strive for consensus in decisions. Do you think that the U.S. 
Court of Appeals should be striving for consensus as well? 
You've gone from a District Court now to more of group 
decisionmaking.
    Judge Hamilton. I think that's one of the major changes 
that I contemplate for moving from the District Court to the 
Circuit Court, if the Senate was to confirm my nomination.
    I'm used to making decisions on my own, with help from 
staff and able law clerks, and so on, but they have to be my 
decisions. At the same time, I have worked in a very collegial 
court in the Southern District of Indiana, with friends and 
colleagues. We don't select our colleagues; other people do 
that on the court.
    Senator Klobuchar. I know what that's like.
    [Laughter.]
    Chairman Leahy. Very good.
    [Laughter.]
    Senator Klobuchar. Continue on.
    Judge Hamilton. We don't always agree on everything but we 
work together well, we exchange our views, we make our 
decisions, and we move on. I know the members who are now on 
the Seventh Circuit and I would expect to be able to work with 
all of them on a similar kind of basis. I hope that I'll be 
able to.
    Senator Klobuchar. Very good. And I want to allow my 
colleagues here to ask a question or two.
    One other question. You have been on the Federal bench for 
about 14 years, and as Chief Judge of the Southern District of 
Indiana since 2008, what are the challenges that you see for 
the Federal bench? I'm new on the Judiciary Committee and I'm 
looking forward to working with all of our judges on what are 
the challenges you see ahead.
    Judge Hamilton. Given my role, I should say first of all 
you should listen to whatever the Judicial Conference says--
those are my bosses--on those sorts of issues. But from my 
perspective I would say to be cautious about the expansion of 
Federal jurisdiction, both criminal and civil.
    We have plenty of work to do. I hope that Congress will 
maintain the distinct characteristics of Federal jurisdiction 
so that Federal courts can continue to play the special role 
that they do in our society. I hope that the Congress will 
continue to provide the adequate resources to the Judiciary as 
a whole. I know that's other committees besides this one's 
business, but that's going to be important.
    I have to also, I think, say something about dealing with 
long-term criminal justice issues and working to develop 
effective punishment for the serious crimes that will protect 
the public, prevent further crime, and also manage that very 
difficult problem at reasonable public expense. Those would be 
my highlights, but as I say, I'd better defer to my bosses on 
any such administrative matters, the Judicial Conference.
    Senator Klobuchar. Thank you very much.
    Judge Hamilton. Thank you, Senator Klobuchar.
    Chairman Leahy. Senator Kaufman, before we go to you, I 
know the votes are just about to start. I wonder if I could ask 
both of the nominees, for the record, to introduce their 
families. It's somewhat close in here and some may have to 
leave.
    Mr. Weich, you want to introduce your family for the Weich 
archives?
    [Laughter.]

STATEMENT OF RONALD H. WEICH, NOMINEE TO BE ASSISTANT ATTORNEY 
 GENERAL, OFFICE OF LEGISLATIVE AFFAIRS, DEPARTMENT OF JUSTICE

    Mr. Weich. I'm joined today by my wife, Joan Stewart. 
Behind her are my two brothers--since I was 6 years old. They 
are both real troupers today, but I'm going to say if they want 
to leave----
    [Laughter.]
    And I'm also joined by my parents, Robert and Cecilia 
Weich, who are from the Eastern Shore of Maryland, and 
originally from New York. I'm also joined by some of my 
colleagues, friends, and former colleagues and I appreciate all 
of them being here.
    Chairman Leahy. And we'll add all of their names to the 
record. You have two lovely daughters. If you want to take off, 
your dad's going to be Okay.
    [Laughter.]

  STATEMENT OF R. GIL KERLIKOWSKE, NOMINEE TO BE DIRECTOR OF 
 NATIONAL DRUG CONTROL POLICY, EXECTIVE OFFICE OF THE PRESIDENT

    Chief Kerlikowske. Mr. Chairman, I'm joined by my partner, 
my wife, Anna Laslow, who is behind me. I am also joined by a 
number of friends and colleagues from my time as a Visiting 
Fellow at the Justice Department under Attorney General Edwin 
Meece, former Director of the National Institute of Justice, 
James K. Stewart, and a number of--just a number of friends 
from many years in law enforcement. So, thank you for that 
opportunity to introduce them.
    Chairman Leahy. Thank you.
    Senator Kaufman.
    Senator Kaufman. Yes. Judge, I am very impressed with your 
credentials and your experience and I think we're a really 
fortunate country. The country is fortunate to have you willing 
to take on this additional responsibility.
    For 14 years you've been on the District Court. How is that 
experience, do you think, going to affect your role when you're 
going to be judging appeals from your present colleagues?
    Judge Hamilton. I think that my work on the District 
judge--as a District judge has given me greater hands-on 
insight to what goes on in District Courts, to the kinds of 
decisions that have to be left to the sound discretion of the 
District judge who's managing a docket, managing a trial, as 
well as to those legal issues that the Court of Appeals has to 
decide uniformly for the entire Circuit.
    I hope it has helped me prepare to know how to read a 
transcript, the proverbial ``cold transcript'' that an 
appellate court must review, and to know the different kinds of 
tones and scenes that the same whole transcript can actually 
describe. I certainly have seen my cases go up on appeal. 
Sometimes they don't always look the same on appeal as they 
look to me at the District Court level, and I hope I can 
appreciate that difference with my colleagues whom I respect so 
much on the District Courts within the Seventh Circuit.
    Senator Kaufman. You know, I'm impressed by the breadth of 
the support that you've received across the whole political 
spectrum. Can you talk a little about the relationship between 
your kind of personal opinions, political opinions as opposed 
to your opinions as a judge? I know you've had a lot of 
experience with that. Could you talk about that?
    Judge Hamilton. As a judge, you put your personal opinions 
aside. They really don't have any place in making those 
decisions. The decisions that I have to make are based upon the 
Constitution and the laws of the United States. They're based 
upon the interpretations of those provisions and statutes by 
the Supreme Court of the United States and the Seventh Circuit, 
taking advice also from other circuits, other Federal judges 
and State courts dealing with the same issues. But it's not a--
the Federal judiciary is not a place for anyone to exercise 
their personal opinions.
    Senator Kaufman. Thank you. I think you've made pretty 
clear where you stand on that.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Mr. Weich, we have--in the 1990s, Congress and the 
administration the State and local law enforcement as never 
before. We had the COPS program, the Byrne Justice Assistance 
Grants program. The Chief is well aware of those. Now we find 
kind of a double-whammy. The economic crisis of this country 
cuts back funding at the same time the economic crisis sees 
crime rising.
    We had a Judiciary Committee hearing earlier this year and 
we had police chiefs and policy experts who made clear that if 
we continue to dismantle help for local law enforcement, it's 
going to be a catastrophic problem.
    Will you work with the Congress to help us increase Federal 
funding for--not only for Federal law enforcement, but for 
local law enforcement?
    Mr. Weich. Yes, Mr. Chairman, I will. As you may know, at 
the outset I'm a former local prosecutor myself. I worked in 
the Manhattan District Attorney's Office at the beginning of my 
legal career. I understand, I think, the needs of State and 
local law enforcement. My work with the Congress and the 
Senate, for three different members, has really impressed upon 
me how strongly Senators feel about needing to assist local law 
enforcement in their States. So as the Assistant Attorney 
General for Legislative Affairs, if confirmed, I would 
certainly work to impress upon decisionmakers, even the 
administration, of the need for that kind of support.
    Chairman Leahy. And also for the community-based efforts 
that oftentimes are helping the Department of Justice. As the 
Chief has said, and others, it's not just law enforcement that 
can stop it, especially in the area of youngsters, drugs, and 
so on. But the whole community has to be involved. Now, in the 
past, since this Department has been helpful in those areas--
less so recently--will you work with us to bring it back to 
where DOJ and our national programs can help with community 
policing and community crime prevention?
    Mr. Weich. I certainly will. There's a whole set of grant 
programs within the Office of Justice Programs, in our COPS 
office, as you say, that are, I think, really starved for 
support. The stimulus bill includes new resources in those 
areas, but there's more that needs to be done. I know Attorney 
General Holder and the President, President Obama, are very 
committed to those programs. In the role that I will play, I 
would make sure that those decisionmakers are aware of how 
strongly Congress feels about this.
    Senator Klobuchar. Thank you very much, Mr. Chairman.
    Mr. Weich, congratulations.
    Mr. Weich. Thank you, Senator.
    Senator Klobuchar. The Chairman touched on this a bit, and 
I know you know in Minnesota we had a big problem with our U.S. 
Attorney's Office in terms of a political appointment that got 
fixed, actually, by Attorney General Mukasey when he came in. 
But could you talk a little bit about the morale issue within 
the Department? I mean, that won't be a primary responsibility. 
I asked this of Attorney General Holder and others, but what do 
you think needs to be done after this era that we lived through 
with the Department of Justice to improve the morale?
    Mr. Weich. Well, Senator Klobuchar, I'm not in the 
Department yet and--so I can't speak firsthand about the state 
of morale. I do know--I was in the building, in the Department 
of Justice, when Attorney General Holder was sworn in the day 
after his confirmation. Senator Leahy was there. And it was a 
very exciting moment.
    I have the impression that the career employees at 
Department of Justice were very excited to see him arrive. The 
career employees are really the backbone of the Department, so 
everything that the new Attorney General and his team can do to 
strengthen morale within the building, and if confirmed to join 
the Department of Justice team, I will do what I can to make 
sure that those employees and officials know how much they're 
appreciated and how important their work is.
    Senator Klobuchar. It's real interesting, because clearly 
part of the problem was the injection of politics into the 
Justice Department that made for some of the problems. Your 
role is going to be as legislative liaison. I know in your 
prepared remarks you talked about, that we need to have a 
healthy relationship between the Justice Department and this 
Committee, and how that is crucial to Federal law enforcement.
    Do you want to talk a little bit about what you meant by a 
``healthy relationship'' ?
    Mr. Weich. Sure. I thought a lot about it in my--in my time 
working for three different Senators, Senator Specter, Senator 
Kennedy, and now Senator Reid, and I have the perspective of 
working both on the committee and for the Democratic Leader. 
Obviously the Constitution creates sort of an inherent tension 
among the branches. That's what checks and balances is all 
about.
    But I think it's so important for leaders of the three 
branches to be able to speak to each other constructively, 
openly, with trust and respect, and I think I could facilitate 
that, if confirmed as the Assistant Attorney General, to at 
least improve and strengthen the relationship between the 
legislative branch and the Justice Department. If that kind of 
communication goes on, then I think the branches can work as 
partners to address the problems that the American people want 
to address.
    Senator Klobuchar. Thank you.
    Chairman Leahy. Senator Whitehouse just came in. Also, a 
vote has started.
    Senator Whitehouse. Well, it just started at 3:27.
    Chairman Leahy. I'm going to go vote. Please continue and 
I'll be right back.
    Senator Klobuchar. This is my party now.
    [Laughter.]
    Unfortunately, half the people didn't come, but that's 
Okay.
    [Laughter.]
    Senator Whitehouse. Thank you. I just have two questions. 
The first is for Judge Hamilton. Welcome, Your Honor.
    Judge Hamilton. Thank you, Senator.
    Senator Whitehouse. As I understand it, you were appointed 
to the U.S. District Court in 1994?
    Judge Hamilton. Yes.
    Senator Whitehouse. You went through a full FBI field 
background check at the time?
    Judge Hamilton. I did.
    Senator Whitehouse. You were confirmed by the Senate?
    Judge Hamilton. Yes.
    Senator Whitehouse. Everybody had adequate time, if they 
wished, to review your past until 1994 at that point?
    Judge Hamilton. I suppose so.
    Senator Whitehouse. One would suppose so, wouldn't one? For 
14 years you've led a relatively public life as a member of the 
U.S. District Court and as the Chief Judge of that court. Is 
that correct?
    Judge Hamilton. I say the work I've done is public, my life 
is private, some would say monastic. But, yes.
    Senator Whitehouse. Given the fact that you've been cleared 
once already, the fact that your work is a matter of public 
record, the fact that you're in a very public position as the 
Chief Judge of the U.S. District Court in your district, can 
you hazard a guess as to what of concern might not be available 
to our friends on the other side that has caused them to fail 
to appear for this hearing?
    Judge Hamilton. Senator----
    Senator Whitehouse. You're a pretty open boOkay. All you 
have to do is read it, right?
    Judge Hamilton. Senator, I'm glad to be here and my record 
is open. I appreciate the opportunity to appear before the 
Committee.
    Senator Whitehouse. I appreciate it. Thank you very much, 
Your Honor.
    I will--Chief Kerlikowske, we've spoken before on this 
subject so I won't make you go through this again. But I would 
like, with the Chairman's permission and with unanimous 
consent, to make a request for the record that you respond on 
the issue of the Drug Enforcement Administration interference 
with e-prescribing and with the reforms that the President has 
promised in the area of electronic health records by virtue of 
insisting on a paper system being maintained by doctors for 
controlled pharmaceuticals, even if they have gone to an 
electronic prescribing system, which is obviously much more 
efficient for other pharmaceuticals.
    I'd like to express for the record, as a former Attorney 
General and as a former U.S. Attorney, my very strong belief 
that an electronic system would actually be a very positive 
development for law enforcement and a very useful tool for law 
enforcement in looking at drug diversion offenses, and the DEA 
would actually be far stronger and more effective in dealing 
with the increasing issue of drug diversion if they would get 
out of the way and allow us to move to electronic prescribing 
and allow reasonable regulations to go forward that would 
support that transition. If you would take that question for 
the record, I'd appreciate it. If you have any comment you'd 
like to make now, I'd be glad to hear it, but I'll put the 
question for the record.
    Chief Kerlikowske. Senator, I just would like to tell you 
that I very much appreciate you and your staff explaining the 
details of that issue and, if I am confirmed, it will be one of 
the issues that I will certainly get very much more involved 
with and work more closely. An improved health care system is 
something close to everyone's heart, and an improved law 
enforcement system is also. So, you can rest assured that I 
will do that.
    Senator Whitehouse. I appreciate it. I thought in the last 
administration that we had to introduce the head of the Drug 
Enforcement Administration to the head of the Department of 
Health and Human Services and remind them that they worked for 
the same President and wondered why they weren't going in the 
same direction. It wasn't very successful, but it provided for 
an excellent hearing in the committee that I was then chairing.
    [Laughter.]
    Thank you very much. I thank the Chair. I will excuse 
myself to vote.
    Senator Klobuchar. Senator Kaufman.
    Senator Kaufman. Yes.
    Mr. Weich, I can't think of anybody coming to your position 
with better experience for what you're going to be doing.
    Mr. Weich. Thank you, Senator.
    Senator Kaufman. You're one of the few I've ever seen that 
has bipartisan experience in the Senate, which is kind of 
unusual. So I think--plus your knowledge and experience you 
had.
    Can you just talk for a few minutes about kind of how you 
see your role in terms of dealing with the Congress for the 
Justice Department? And by the way, the final thing I want to 
say is how fortunate the Attorney General is in having you 
nominated to help him with his job.
    Can you talk a little bit about your role in kind of 
dealing between the Congress and the Justice Department?
    Mr. Weich. Well, thank you, Senator Kaufman. I do see the 
role of the Assistant Attorney General for Legislative Affairs 
as being kind of a translator, if you will, between the 
branches. And it's a two-way street. That is to say, I think 
the Assistant Attorney General has to represent the interests 
of the Department before Congress and explain in advance 
legislative initiatives and other policies, but at the same 
time I see the role as communicating to the Justice Department 
the views of the Congress. These worlds are sometimes too 
separate, and the more that I can do to bridge the gap and make 
sure that both--leaders in both branches understand what the 
other branch is thinking, I think the better the product will 
be, both legislation and the policies of the Department.
    Senator Kaufman. Chief Kerlikowske, I mean, again, this is 
a great panel. I think everyone here is extremely well-
qualified for what they're doing and I think we're really 
fortunate you're willing to come here and take on what is 
without a doubt one of the widest ranging jobs in the U.S. 
Government.
    Can you kind of talk--all these different things that 
you're doing, kind of what your priorities are in your new 
position?
    Chief Kerlikowske. Thank you, Senator. I don't think many 
people outside government and out in the field--and I've spent 
my whole life out in State and local law enforcement--
understand the wide array of responsibilities that the 
Director's position holds and the amount of authority that it 
holds over--over the budget, that setting a national drug 
strategy for the President of the United States is by far the 
most important task of the role.
    But then when I look at the other priorities, clearly 
breaking down the silos and--I think instead of the--Senator 
Murray mentioned that, this isn't an either/or; it isn't about 
treatment or about law enforcement, it isn't about source 
country eradication or about rehabilitation and recovery. 
Particularly in these incredibly difficult economic times, 
having people work together--and I always listen to them very 
carefully, and was listening carefully when Senator Whitehouse 
mentioned about everybody fully together in the same direction.
    I think my background and experience in that area can help 
to break down some of these things so that we don't try and 
either arrest our way out of a problem or we don't realize that 
the criminal justice system is, in fact, a significant player 
in bringing people back into recovery and back into 
mainstream----
    Senator Kaufman. Thank you. Again, I'm going to go vote--
willing to take on these responsibilities. Thank you.
    Judge Hamilton. Thank you, Senator Kaufman.
    Senator Klobuchar. Chief, when we visited in my office we 
talked about drug courts and about how we both had experience 
with drug courts. I had the experience of a drug court, but its 
jurisdiction, I thought, was too broad in that it included gun 
cases and all kinds of things. The joke with the cops was, if 
you had a gun with you, you'd better hope you have drugs 
because then you could go to the drug court. And we changed 
that, actually, and as a result there was more support with law 
enforcement. Yet, it still took care of so many of our low-
level drug offenses. Could you talk about your view of drug 
courts and how that would fit in nationally with what you want 
to do with your job?
    Chief Kerlikowske. I can, Senator. Clearly the drug court 
movement in this country--and I was fortunate to have been 
involved with Attorney General Reno when she persevered when 
moving that forward--first drug courts in the country, and I've 
been very fortunate to have officers assigned full-time to the 
drug court in Seattle.
    Having gone to drug court graduations in several cities, I 
can't think of a more worthwhile experience, not just for a 
police chief or a sheriff, but also for a citizen to see people 
under the auspices of the right judges who are making sure that 
these people not only pay their debt back to society, but when 
they return back into society they return as productive, 
taxpaying citizens. I'm a big fan.
    Senator Klobuchar. Okay. Very good. Well, thank you.
    I have to go vote, so I'll turn this back to Chairman 
Leahy.
    Chairman Leahy. Thank you.
    Senator Klobuchar. I had memorized all your key cases, 
Judge Hamilton, last night for my moment when Chairman Leahy 
was going to leave, but there was no one to tango with.
    [Laughter.]
    Chairman Leahy. I haven't memorized anything.
    Senator Schumer.
    Senator Schumer. Mr. Chairman, you don't have to memorize 
anything, you're the Chairman.
    [Laughter.]
    Chairman Leahy. Very recent rumors----
    Senator Schumer. Anyway, first, I want to thank you for 
holding this hearing, Mr. Chairman.
    First, about Ron Weich, I've worked with him very closely 
over the last several years, so has my staff, and I think we 
all can say without reservation he's the right person for the 
position of Assistant Attorney General for the Office of 
Legislative Affairs. I say with pride, he's a son of the Bronx, 
a product of the New York City--in Brooklyn, being from the 
Bronx is almost as good.
    [Laughter.]
    He's a product of the New York City public school system.
    Word of his nomination made it back home. There's a glowing 
letter of recommendation in his record from a legendary 
District Attorney of Manhattan, Bob Morgenthau, another special 
narcotics--from the Special Narcotics Office for New York, 
Bridgett Brennon, and they have seen, as I think we all have, 
Mr. Weich's professionalism, legal skill, and commitment to 
justice.
    Judge Hamilton, your record on the bench speaks for itself. 
I look forward to seeing you continue that success on the 
Seventh Circuit. And to Chief Kerlikowske, who I have also 
known for many years, particularly in your past life as 
Commissioner of the Police Department of Buffalo.
    Judging from your experience, it's clear to me that you're 
the right person to lead ONDCP now. We've worked closely 
together. In fact, some of the ideas that I brought down here 
legislatively were ideas that Chief Kerlikowske had been 
formulating and working out in Buffalo, did a fabulous job. He 
knows--Gil Kerlikowske knows, Chief Kerlikowske knows that drug 
problems aren't limited to New York City, Chicago, or Los 
Angeles. They're real, they're close to home, and they're 
everywhere.
    So with the Chairman's permission, I'd just like to ask you 
a couple of questions which we had talked about, Chief, that 
are of great concern to me.
    First, about cartels and gangs in Buffalo. A recent Justice 
Department report found that ``Mexican drug trafficking 
organizations maintain drug distribution networks or supply 
drugs to distributors in at least 230 cities.''
    Now, two of those cities listed were Albany, New York and 
Buffalo, New York. The DOJ explicitly, specifically identified 
the Gulf Coast cartel, one of Mexico's most notorious cartels, 
as having connections in Buffalo, and there's the related 
problem of violent street gangs making their way into the area. 
Just a few weeks ago, we saw a takedown of 28 members of the 
Bloods street gang in Niagara County, a county right to the 
north of Erie County, in which Buffalo is.
    All of this leads to the question of whether there are 
enough resources to tackle the problem. So my first question to 
you is, can you commit to dedicating specific attention and 
resources to drug trafficking--to fighting drug trafficking 
organizations in places like Buffalo and Albany, and then what 
specific actions might you take?
    Chief Kerlikowske. Thank you, Senator, very much. The 
experience in Buffalo was one that was particularly close to my 
heart. The first year I was there, we had the highest number of 
homicides ever in the history of the city, a very troubling 
time. Then to be able to leave 5 years later with a 38 percent 
reduction in crime, all that the men and women of that 
department did, I was impressed.
    I can commit to you in a number of ways that I will work 
very hard to make sure that the appropriate resources, if I am 
confirmed to this position, will be put onto the front lines as 
there are not only a number of HIDTAS in northwest, but having 
experienced how important HIDTAs are at bringing State, local, 
and Federal law enforcement together with Federal prosecutors. 
Those are particularly important issues to me. Also making sure 
that we all understand that we can't sever out particular 
things, a drug trafficking organization versus a violent crime 
organization. They are so interconnected, that we need to keep 
those things in mind.
    The last thing I would mention to you, Senator, is that 
when I talk to all of my colleagues, whether it's the chief in 
Minneapolis or at the farthest northern parts of our country, 
we know that the Southwest border doesn't stop at Texas or 
Arizona.
    Senator Schumer. Right. Good.
    So you will commit to helping bring the resources needed to 
deal with these problems in Buffalo and Albany in particular?
    Mr. Weich. If I'm confirmed, I'll do everything possible to 
do that, Senator.
    Senator Schumer. Right. Okay.
    The next one is a little bit related. We talked about this 
at our meeting, too. We're having an explosion of hydroponic 
marijuana coming down across New York's northern border from 
Canada. I don't know if this is affecting your State as well, 
Mr. Chairman; it may well.
    Chairman Leahy. Yes.
    Senator Schumer. Last November and December, we saw two 
major drug busts in border counties. They involved 20 suspects, 
millions of dollars of drugs, all smuggled through the northern 
border.
    So my question to you is, why wouldn't expanding the HIDTA 
designation to New York's four northern counties--as you know, 
we worked, when you were a police chief, on bringing HIDTA to 
upstate New York, which we did and it's been a great success. 
But it's in counties like Erie and Albany County, but it isn't 
in the four northern border counties. Wouldn't expanding HIDTA 
be a good response, not only for New York but for the whole 
country, since this is a gateway by which marijuana is smuggled 
in, and particularly the fact we've had problems at the Indian 
reservation there?
    Chief Kerlikowske. Senator, I think we've seen great 
success with HIDTAs. If I'm confirmed in this role, I can tell 
you that I will look very carefully to make sure that, as the 
definition of the HIDTAs are, for those High-Intensity Drug 
Trafficking Areas, that those finite resources in that 
collaboration are pot into the places in which we're seeing the 
most transshipment of drugs, the most dangerous drug 
trafficking organizations, and I will certainly commit now to 
that.
    Senator Schumer. Taking a real careful look?
    Chief Kerlikowske. Yes, sir.
    Senator Schumer. Okay. I think when you look at it, you're 
going to find that they belong in HIDTA.
    One other thing about this issue, and then I have one more 
question. We're always worried, Senator Leahy, myself, others 
who are on the northern border, that the southern border gets 
all the attention and we don't have enough resources. Will you 
make sure that no resources are diverted from the needed 
northern border activities to go to other parts of the country?
    Chief Kerlikowske. Senator, one of the most important 
things I'll be doing is--if I am confirmed in this role, will 
be to work very quickly with all of those other Federal 
counterparts: Border Patrol, Customs & Border folks, et cetera.
    Senator Schumer. Right.
    Chief Kerlikowske. To make sure that I'm doing my job, my 
role as convener, as a collaborator, and making sure that the 
President's policy is carried out. And clearly, I know from my 
experience in Seattle and my experience in Buffalo, that 
transshipment across the Canadian border of drugs, and of 
course the smuggling of other things, are very important issues 
not only to the Federal law enforcement colleagues, but 
certainly to the effect that they have on our communities. So, 
yes.
    Senator Schumer. Good. Thank you.
    And one final one. This is about another crime problem we 
have in upstate New York. This is meth, crystal meth, in the 
southern tier. The number of meth labs in New York has been 
decreasing. That's good. We've had great help from law 
enforcement. We've all focused on this. There's still a problem 
of meth use. This is a different problem than manufacturing or 
trafficking, but use in New York's southern tier. And you know, 
once these people become addicted to meth it's really hard to 
break.
    Will you focus on both existing programs and new programs 
as Drug Czar to help us cut down on meth use in the less 
densely populated areas of the country, like New York's 
southern tier?
    Chief Kerlikowske. Senator, I think there's a general 
feeling among many in law enforcement that the Federal 
Government was slow off the mark to recognize the problem of 
meth, and even though it still ranks on a national scale at a 
fairly low level, we know that in particular pockets of this 
country it has been an absolutely devastating drug.
    If I'm confirmed, I'd like to see an ONDCP that's more 
flexible, that's able to move much more quickly on emerging 
drug threats, and that the important part of people that have 
become addicted, particularly, as you mentioned, the difficulty 
of getting someone off the addiction of methamphetamine, that 
the treatment issues and the rehabilitation issues are given as 
much of a priority as the enforcement issues.
    Senator Schumer. Mr. Chairman, thank you. And I thank all 
three of our nominees here and I think they're a great group.
    Chairman Leahy. Thank you.
    Judge Hamilton. Thank you.
    Mr. Weich. Thank you.
    Chief Kerlikowske. Thank you.
    Chairman Leahy. Judge Hamilton, I know when Senator Specter 
was here he mentioned some of your cases. He did say he didn't 
necessarily disagree. But one was Dole v. Prosecutor, Marion 
County and Henrichs v. Bozeman, and Women's Clinic v. Neiman. 
Do you have any of the cases that have been mentioned here that 
you want to say anything about?
    Judge Hamilton. Thank you, Mr. Chairman. I appreciate the 
opportunity to address those concerns. The cases are all very 
familiar, too. I could probably talk about them a long time, 
but I'll try to be relatively brief.
    First, let me say with respect to the case of Dole v. 
Prosecutor, I believe that there may be some misimpressions 
about that decision. Indiana has a statute that requires sex 
and violent offenders to register periodically with law 
enforcement where they live, and work, and go to school.
    In 2008, the Indiana legislature tightened some of those 
requirements. It added, for example, requirements that sex and 
violent offenders register with the State e-mail addresses and 
user names that they use in chat rooms. There has been no 
controversy about those provisions or the original sex offender 
registration provisions at all. None of those provisions were 
part of that case.
    The one provision that was at issue in that case was a new 
requirement requiring sex offenders and violent offenders who 
had already completed all aspects of their criminal justice 
sentences, not only their prison sentences but also court 
supervision in the form of probation, parole, or supervised 
release, to consent to search of their computers and homes at 
any time without a warrant, without any individualized 
suspicion.
    In a fairly lengthy opinion I explained why I thought, as 
applied to those offenders who had already completed their full 
sentences and who were no longer under supervision, a 
requirement that they be vulnerable to searches of their homes 
and computers at any time, without a warrant, is contrary to 
the Fourth Amendment. There was no appeal, I should add, from 
that decision. The State of Indiana has accepted that decision. 
There was no appeal.
    If I could speak briefly about the case of Bozeman v. 
Henrichs, I did not hold that legislative prayer was 
unconstitutional. What I held was that, on the facts presented 
to me, systematically and pervasively, sectarian prayers from 
the official podium of the House of Representatives did violate 
the establishment clause. What I did, was apply the principles 
that the Supreme Court had embraced in a case called March v. 
Chambers, the Supreme Court's venture into the issue of 
legislative prayer.
    My decision on the merits was consistent with other 
appellate courts, both in the Federal and State court systems 
that have dealt with similar practices of persistently 
sectarian prayer in an official forum. I certainly hope that 
the decision is not interpreted at all as limiting anyone's 
free exercise of religion, nor is favoring any one religion 
over another. The whole idea of the establishment clause is 
that government stays neutral in matters of religion.
    As Senator Specter pointed out, the decision was reversed 
ultimately on appeal on the issue of standing. The case came 
before me with several taxpayers objecting to the use of their 
tax money to support this practice. I applied the laws of 
taxpayer standing under the establishment clause as it existed 
at the time under then-controlling precedents the Supreme Court 
had----
    Chairman Leahy. This was before Hine v. Freedom.
    Judge Hamilton. Precisely. When the case first went to the 
Seventh Circuit, the Seventh Circuit, in an opinion written by 
Judge Ripple, whose retirement created the opening here, Judge 
Ripple and the panel wrote an opinion, saying, in essence, that 
I had decided the standing issue and the merits issues 
correctly and they left my injunction in place pending the 
appeal.
    While that appeal was pending, the Supreme Court decided 
the issue of Hine v. Freedom From Religion Foundation, which 
reshaped in ways that I think still remain to be worked out, 
the doctrine of taxpayer standing under the establishment 
clause, and that panel divided 2:1 on how to apply Hine 
standing issue there.
    Chairman Leahy. And you did not have Hine as stare decisis 
in any form at the time you made your decision?
    Judge Hamilton. I did not. I applied the controlling 
precedents in place at the time. With respect to the Newman 
decision, what I was doing was applying the principles adopted 
by the plurality opinion, the controlling plurality opinion in 
Casey v. Southeastern Pennsylvania. And I think it was clear 
that the Casey opinion left open the potential for a challenge 
to waiting period and informed consent laws after there was 
some experience with those laws.
    So there was an invitation, in essence, to parties who 
opposed such laws to develop that evidence and bring it before 
an appropriate court. I wound up being the court where that 
evidence was presented. I examined it carefully. I heard 
mention of the fact that the case took some time to decide. I 
would add that the case was brought in 1995.
    I issued a preliminary injunction against enforcement of 
the statute in the fall of 1995. The State did not appeal that 
decision. Instead, the case was diverted to the State courts to 
resolve some issues of State law. When it came back to Federal 
court, I modified the preliminary injunction accordingly. There 
was, again, no appeal in the preliminary injunction. My 
recollection is that then the parties engaged in a fairly 
elaborate and lengthy process of discovery that involved 
complex statistical evidence.
    Professors from several universities were brought in to 
examine the statistics. My recollection is that I scheduled the 
trial when the parties told me they were ready, after they had 
ample opportunity to study the experience in other States of 
similar laws. I held the trial, accepted additional evidence 
that the parties wanted to submit afterwards, as well as 
elaborate briefs, and decided, I think, with appropriate 
speed----
    Chairman Leahy. That was the parties on both sides? That 
was the parties on both sides?
    Judge Hamilton. It was. That's my recollection, Senator.
    Chairman Leahy. Well, do you have any other----
    Senator Schumer. Yes. I just--no, I just wanted to make a 
comment, Mr. Chairman. I regret that our colleagues are not 
participating here. It doesn't bode well for moving and filling 
vacancies on the bench. You--when they were in the majority, 
Mr. Chairman, you led us. And we asked a lot of questions, we 
opposed certain nominees, but we never boycotted.
    A first nominee who is supported by the Republican Senator 
from his home State, who is known from--you know, in 
jurisprudence as a moderate, supported by a member of the 
Federalist Society, I just find it--I just have to say it's 
just regrettable and I want to apologize to you, Judge 
Hamilton. The questions that you should be asked by some who 
might--maybe they don't have any difficult questions to ask 
you, or they think they can't get you on asking questions so 
they don't come. But I just find this--let's put it like this. 
I think they're off to a bad start.
    Chairman Leahy. Well, you know, I won't question anybody's 
motives. I am--statistics. I would note that when the Democrats 
were in charge we moved more of President Bush's nominees, 
faster, than when the Republicans were in charge, to try and 
demonstrate that we wouldn't be partisan. I hope they're not 
going to be partisan on this.
    We're not going to hold this hearing--it's going to be 
slightly over 3 weeks before we have a mark-up on this, so 
it'll be the first Thursday when we come back. I'll keep the 
record open until the end of this week. Any one of you can add 
to it, but you have to sit here. Certainly anybody can ask any 
questions. I've been here longer--in the Senate longer than any 
member of this Committee. We've had several long--ones but I've 
never known a time, whether somebody was for or again, that 
needed more than 3 weeks to get the answers to my questions.
    We'll stand in recess. I congratulate you all, and I thank 
you all for being willing to answer your Nation's call in this 
way. Each one of you has answered the--call before and I 
appreciate you doing it again.
    [Whereupon, at 4 p.m., the hearing was adjourned.]
    [The Questionnaire and questions and answers and 
submissions for the record follow.]





                                 
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