[Senate Hearing 111-851]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 111-851



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE


                             SECOND SESSION


                             JUNE 15, 2010


                          Serial No. J-111-116


         Printed for the use of the Committee on the Judiciary

64-377                    WASHINGTON : 2011
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 

                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
ARLEN SPECTER, Pennsylvania          JON KYL, Arizona
CHARLES E. SCHUMER, New York         LINDSEY GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         TOM COBURN, Oklahoma
AL FRANKEN, Minnesota
            Bruce A. Cohen, Chief Counsel and Staff Director
                  Matt Miner, Republican Chief Counsel

                            C O N T E N T S




Cardin, Hon. Benjamin L., a U.S. Senator from the State of 
  Maryland.......................................................     5
    prepared statement...........................................   166
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   185
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     2


Danforth, Hon. John C., former U.S. Senator from the State of 
  Missouri.......................................................     6

                          STATEMENT OF NOMINEE

Cole, James Michael, Nominee to be Deputy Attorney General, U.S. 
  Department of Justice..........................................     8
    Questionnaire................................................    10

                         QUESTIONS AND ANSWERS

Responses of James Michael Cole to questions submitted by 
  Senators Leahy, Whitehouse, Sessions, Grassley and Coburn......   120

                       SUBMISSIONS FOR THE RECORD

Cannon, W. Stephen, Constantine/Cannon, Attorney at Law, 
  Washington, DC, letter.........................................   164
Cole, James M., Nominee to be Deputy Attorney General, U.S. 
  Department of Justice, statement...............................   169
Danforth, Hon. John C., former U.S. Senator from the State of 
  Missour, prepared statement and letter.........................   174
Department of Justice, John D. Ashcroft, Attorney General, 
  William P. Barr, Attorney General, Benjamin R. Civiletti, 
  Attorney General, James B. Comey, Deputy Attorney General, Mark 
  R. Filip, Deputy Attorney General, Alberto R. Gonzales, 
  Attorney General, Jamie S. Gorelick, Attorney General, Jo Ann 
  Harris, Assistant Attorney General, Criminal Division, Philip 
  B. Heymann, Deputy Attorney General, Paul J. McNulty, Deputy 
  Attorney General, Craig S. Morfore, Acting Deputy Attorney 
  General, Michael B. Mukasey, Attorney General, David W. Ogden, 
  Deputy Attorney General, Janet W. Reno, Attorney General, James 
  K. Robinson, Assistant Attorney General Criminal Division, 
  George J. Terwilliger III, Deputy Attorney General, Larry D. 
  Thompson, Deputy Attorney General, Washington, DC, joint letter   178
Gorelick, Jamie S., WilmerHale, Washington DC, letter............   180
Howard, Roscoe C., Jr., Attorney, Andrews Kurth LLP, Washington, 
  DC, letter.....................................................   181
Jeffress, William H., Jr., Baker Botts LLP, Washington, DC, 
  letter.........................................................   183
Little, Rory K., Professor of Law, U.C. Hastings College of the 
  Law, San Francisco, California; Bruce A. Green, Louis Stein 
  Professor of Law, Fordham University School of Law, New York, 
  New York; Charles J. Ogletree, Jesse Climenko Professor of Law, 
  Harvard Law School, Cambridge, Massachusetts; Andrew Taslitz, 
  Professor of Law, Howard University School of Law, Washington, 
  DC; Ronald Goldstock, Adjunct Professor of Law, Cornell, 
  Columbia and NYIU Law Schools, Larchmont, New York; Myrna S. 
  Raeder, Professor of Law, Southwestern Law School, Los Angeles, 
  California; Ellen Yaroshefsky, Clinical Professor of Law, 
  Cardozo University, New York, New York, joint letter...........   187
Madigan, Michael J., Orrick, Herrington & Sutcliffe LLP, Columbia 
  Center, Washington, DC, letter.................................   189
Marcus, Martin, Chair, Criminal Justice Standards Committee, 
  America Bar Association; Mark Dwyer, New York, New York; Nancy 
  King, Nashville, Tennessee; Robert McWhirter, Phoeniz, Arizona; 
  Cheryl Jacobe, Baltimore, Maryland; Albert Krieger, Miami, 
  Florida; John Wesley Hall, Little Rock, Alaska; Matthew, Redle, 
  Sheridan, Wyoming; Margaret Colgate Love, Washington, DC, joint 
  letter.........................................................   190
Noble, Ronald K., International Criminal Police Organization, 
  France, letter.................................................   192
Oliver, Jack L., Ryan Cove LLP; St. Louis, Missouri, letter......   194
Cynthia Eva Hujar Orr, President National Association of Criminal 
  Defense Lawyers and Christopher D. Chiles, President, National 
  District Attorneys Association, joint letter...................   195
Rosen, Chuck, Partner, Hogan Lovells, Washington, DC, letter.....   197
Rosenberg, Harry, Phelps Dunbar LLP, Counselors at Law, New 
  Orleans, Louisiana, letter.....................................   198
Ross, Steve, Akin Grump Strauss Hauer & Feld LLP, Attorneys at 
  Law, Washington DC, letter.....................................   200
Saltzburg, Stephen A., Wallace and Beverly Woodbury, University 
  Professor of Law, Bruce A. Green, Professor, Washington, DC; 
  Charles Joseph Hynes, Prosecutor, New York; Anthony Joseph, 
  Defense Counsel, Alabama, Stephen A. Saltzburg (Professor) DC; 
  Robert Johnson, Prosecutor, Minnesota; Michael S. Pasano, 
  Defense Counsel, Florida; Catherine Anderson, Retired Judge; 
  Ronald C. Martin, II, Prosecutor, Massachusetts; Bruce Lyons, 
  Defense Counsel, Florida; Myrna S. Raeder, Professor, 
  California; Ronald Goldstock, Prosecutor, New York; William W. 
  Taylor, III, Defense Counsel, Washington, DC, joint letter.....   202
Selden, Jack W., Bradley Arant Boulot Cummings LLP, Birmingham 
  Alabama, letter................................................   204
Toner, Michael E., Bryan Cave LLP, Washington, DC, letter........   205
Whitley, Joe D., Greenberg Traurig, Attorneys at Law, Washington, 
  DC, letter.....................................................   207
Wood, John F., Hughes Hubbard & Reed LLP, Washington, DC, letter.   208



                         TUESDAY, JUNE 15, 2010

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:09 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Kohl, Cardin, Whitehouse, 
Klobuchar, Kaufman, Franken, Sessions, Hatch, Graham, and 

                      THE STATE OF VERMONT

    Chairman Leahy. Good morning. Today the Committee will 
consider the President's nomination of Jim Cole to be Deputy 
Attorney General. We are proceeding promptly on the nomination 
to fill this important position at the Department of Justice, 
just as we did when President Bush nominated Mark Filip to be 
the Deputy in 2007. The No. 2 position is vital to our national 
security and our system of justice.
    It has been nearly a year and a half since Eric Holder was 
sworn in as the 82nd Attorney General of the United States. He 
has made great strides toward restoring the Department of 
Justice and the American people's confidence in Federal law 
enforcement. Morale has improved throughout the Department. Key 
parts of the Justice Department, like the Civil Rights Division 
and the Antitrust Division, are now recommitted to their 
historic functions. The Department has been aggressive in 
attacking crime, particularly violence related to drug cartels, 
and it has demonstrated a renewed commitment to aggressively 
combating fraud.
    The Department has effectively confronted national security 
challenges as part of a coordinated effort across the entire 
Government. Its prosecutions of those arrested for threatening 
our national security are yielding important intelligence, but 
also very importantly convictions and extended sentences. These 
are difficult problems, but the Attorney General and the 
Justice Department have played constructive roles in 
confronting them with integrity and a commitment to our 
national security.
    I would like to start by thanking Jim Cole and his family 
for their willingness to contribute to these efforts. He is an 
experienced prosecutor. He has a well-deserved reputation for 
fairness, integrity, and toughness. He certainly has a great 
familiarity with the criminal justice system and the Department 
of Justice. He understands the issues of crime and national 
security that are part of the Deputy's job. He served as a 
career prosecutor within the Department of Justice for a dozen 
years, prosecuting complex and high-profile corruption cases, 
and helping to manage the Public Integrity Section.
    He served as Special Counsel for a House of 
Representatives' investigation into allegations of improper 
conduct by the then Speaker of the House, and he was fair 
throughout. In the private sector, he has led internal 
investigations into fraud and corruption. He is leaving a 
successful career in private practice to rejoin the Department.
    I do not know if you have told your family what a big cut 
in pay you are going to take to do that, but I applaud you for 
    His nomination has received strong endorsements from 
Republican and Democratic public officials and high-ranking 
veterans of the Justice Department. In a few minutes, we are 
going to hear from Jack Danforth, who was a Republican 
colleague from Missouri in the Senate, somebody I had the 
pleasure of serving with, as many of us did; a former U.N. 
Ambassador and former Attorney General of Missouri, and he will 
introduce him to the Committee. I know that Senator Cardin 
worked with him in the House on ethics investigations; he will 
speak about it.
    So I think we are very fortunate to have him here. I hope 
we will have a strong bipartisan vote for him so we can 
continue to make sure the Department is on top of its criminal 
justice and national security responsibilities day in and day 
out, especially as this is the position that, in the absence of 
the Attorney General, acts as the Attorney General.
    Again, I apologize for the hoarseness.
    Senator Sessions.

                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman.
    Senator Danforth, it is great to have you, and, Mr. Cole. I 
enjoyed our discussion yesterday. Thank you for coming by. That 
was helpful to me.
    There are number of critical areas that the Deputy will be 
involved in. Of course, you act in the absence of the Attorney 
General, and I am sure he will give you a great deal of the 
management responsibilities of the Department that has always 
traditionally fallen to the Deputy. He needs a strong right 
arm. I know he is a friend of yours, someone that you feel 
comfortable and he feels comfortable with.
    I am not at all satisfied that the Department of Justice is 
restored. I am not sure it was so unrestored, actually. But I 
have some concerns about your appointment, and we will talk 
about those as we go forward.
    First, I am concerned about the aggressive way you 
criticized the Government's response to the September 11th 
attacks and the creation of military commissions. Your 
statements show an adherence to the failed 9/11 enforcement 
approach to Islamic terrorism that focused on indictments 
rather than intelligence and individual suspects rather than 
the individual terrorist networks. You were aggressive in that, 
and that is the position you took, and it was contrary to what 
the 9/11 Commission concluded and I think what this Senate has 
concluded fundamentally.
    Your criticism of our efforts against al Qaeda were in a 
Washington Post article two months after 9/11. That article 
stated--``Washington criminal lawyer James Cole said the Bush 
administration is invoking an emergency as a pretext for 
actions `contrary to the spirit and letter of the 
Constitution.' ''
    I do not think that is an accurate or fair criticism of the 
administration at that time.
    Just days before the 1-year anniversary of September 11th, 
you wrote an op-ed not honoring the victims of 9/11 or calling 
for justice against bin Laden, but faulting the then Attorney 
General John Ashcroft for his decision to support military 
commission trials of foreign terrorists. In your op-ed, you 
argued that, ``[t]he Attorney General is not a member of the 
military fighting a war. He is a prosecutor fighting crime. For 
all the rhetoric about war, the September 11th attacks were 
criminal acts of terrorism against a civilian population.''
    You compared the September 11th attacks to criminal acts 
like drug violations, organized crime, and murder, writing 
that, ``[t]he acts of September 11th were horrible, but so were 
these other things.''
    You even accused Attorney General Ashcroft of taking 
America down a dangerous road and abandoning core American 
principles by supporting military commissions.
    From your prior statements, it appears that you would favor 
trying the September 11th plotters, whether it is Khalid Sheikh 
Mohammed or Osama bin Laden, in a civilian criminal court. I 
would also have to assume based on those statements and your 
writings that you would be in favor of providing Miranda 
warnings to foreign terrorist leaders when they are captured.
    So I am concerned about what kind of signal that means. 
What is the President saying about his determination as to how 
to proceed against these enemy combatants who threaten the 
United States? Does your nomination suggest that it was a 
correct decision to advise the Christmas Day bomber that he 
could remain silent and be entitled to a lawyer?
    The 9/11 terrorists, I think the American people believe, 
are war criminals, not common criminals. The attacks were 
orchestrated by an international terrorist organization, al 
Qaeda, that was harbored by a foreign government, the Taliban 
in Afghanistan, and against whom we have authorized the use of 
military force. They should be prosecuted, I think, consistent 
with history and propriety, via military commissions just as 
this Nation prosecuted the Nazi saboteurs who came to our 
country to bomb civilian targets during World War II.
    As a matter of constitutional or international law and as a 
matter of history, these unlawful combatants are no different. 
So I also disagree with your claim in your op-ed where you 
characterized the civilian trial of Omar Abdel Rahman, the 
mastermind behind the first World Trade Center attack, as a 
successful model for how to prosecute 9/11 terrorists. So that 
is a matter of discussion, a national discussion, which side 
should you take on that.
    But I am not alone in my view. The lead prosecutor in Mr. 
Rahman's case, Andrew McCarthy, and the presiding judge, former 
Attorney General Michael Mukasey, disagreed with the notion 
that the Rahman trial was somehow a model for prosecuting 
terrorism cases. Former Attorney General Mukasey has written 
that, ``[t]errorism prosecutions in this country have 
unintentionally provided terrorists with a rich source of 
intelligence.'' And he specifically cited the Rahman trial as 
having tipped off Osama bin Laden through the production of a 
list of unintended co-conspirators.
    Mr. McCarthy has said, ``[a] war is not a crime, and you do 
not bring your enemies to the courthouse.'' The top officials 
within the Department of Justice, I think, have got to reject 
this blind adherence to the pre-9/11 criminal law mind-set.
    On that note, I should add that I am also concerned that 
many Department nominees have made statements much like the 
ones you have made and evidence the philosophy that you have 
evidenced on this matter. So this is something that we need to 
talk about and the Nation needs to get straight.
    Briefly, let me say your role as compliance monitor at AIG 
in the years leading up to the 2008 financial crisis and the 
$182 billion bailout of AIG is also troubling. You were 
entrusted to monitor that company and put effective controls in 
place. I think we can both agree that things were not 
effective, the Government's efforts were not effective.
    Some well-respected whistleblower organizations have raised 
questions about your nomination in light of the AIG matter. 
They have cited internal whistleblower claims that you allowed 
AIG executives to revise your reports to the SEC. Maybe we can 
discuss that and get your side of that.
    Mr. Cole, you were also repeatedly responsible for 
reviewing transactions structured by AIG Financial Products 
Group, the one that was at the center of the credit default 
swaps, and so we would like to ask about that.
    Mr. Chairman, our nominee has a lot of experience in the 
Department of Justice. He has the confidence of the Attorney 
General. He brings a number of good qualities to this Committee 
and to the office if selected, but also there are a number of 
questions that I think do need to be raised and discussed, and 
thank you for giving me this opportunity.
    Chairman Leahy. Thank you. Before I yield to Senator 
Cardin, I will put in the record letters of support: One from 
Chuck Rosenberg, former U.S. Attorney, Eastern District of 
Virginia; Harry Rosenberg, former U.S. Attorney, Eastern 
District of Louisiana; Michael Toner, the former Chairman of 
the Federal Election Commission and former chief counsel of the 
Republican National Committee; Jack Sheldon, former U.S. 
Attorney, Northern District of Alabama; and Ronald K. Noble, 
the Secretary General of Interpol; and John Wood, former U.S. 
Attorney, Western District of Missouri; as well as other 
    [The letters appear as a submission for the record.]
    Chairman Leahy. Senator Cardin.

                       STATE OF MARYLAND

    Senator Cardin. Well, thank you, Mr. Chairman. I asked for 
this time because I have had a chance to work side by side with 
Mr. Cole, and I wanted to share that with the members of the 
    Let me just point out to Senator Sessions, we are going to 
have a chance to talk about the military commissions and civil 
trials, but I think some of Mr. Cole's concerns about the 
military commissions have been confirmed by the Supreme Court. 
But we will have a chance to get into those issues as this 
hearing proceeds.
    I asked for this time because in 1995 the House of 
Representatives had an extremely difficult challenge. The 
Speaker of our House was under a cloud of using tax-exempt 
organizations--at least alleged to have used tax-exempt 
organizations--to promote a political objective. And the 
bipartisan leadership of the Ethics Committee had to search for 
someone who we could hire as our Special Counsel, our special 
adviser, to bring the House of Representatives together, to 
bring the American people together, on an extremely difficult 
investigation. And we chose Jim Cole to be our Special Counsel. 
I then worked with Mr. Cole as one of the four members of the 
Subcommittee for over a year, as we investigated the situations 
concerning the Speaker of the House.
    And I must tell you, you get to know a person after working 
with a person for that long of a period of time in such an in-
depth way. And Mr. Cole is what you would call a professional 
in the truest sense of the word.
    In the Deputy Attorney General, we want someone who is 
going to remove politics and represent the interests of the 
people of this Nation. That is what we were looking for in the 
Ethics Committee, someone who would be nonpartisan, who would 
give us the confidence that at the end of the day the American 
public would be satisfied that we carried out our 
responsibility on the Ethics Committee. And we could not have 
done that without Mr. Cole's work.
    Rather than giving you my view, let me quote from the 
Chairman of the investigative committee, the Chairman of the 
Ethics Committee at that time, Porter Goss, as I think most of 
you know, a Republican from Florida who went on to become the 
CIA Director. Mr. Goss said, and I am quoting from him, that 
Mr. Cole was a ``brilliant prosecutor'' and ``extraordinarily 
talented.'' Mr. Goss then went on to state that Mr. Cole and 
the members of the Subcommittee worked in a ``spirit of 
bipartisan cooperation'' that grew as the investigation 
    I point that out because I do not think we could have come 
together as a House putting the interests of our Nation first 
without Mr. Cole's professional guidance. And that is exactly 
what we need as the Deputy Attorney General. So I am very 
pleased to very much recommend Mr. Cole, based upon my personal 
experience, to be the next Deputy Attorney General.
    [The prepared statement of Senator Cardin appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much, Senator Cardin.
    Our first witness will be Senator John Danforth. He is a 
former U.S. Senator from the State of Missouri. He was also our 
Ambassador to the United Nations, and one of my very few claims 
to fame, in my tenure in the Senate, as I served as one of 
Ambassador Danforth's assistants, I was nominated by President 
George W. Bush to be a delegate to the United Nations, 
confirmed by the U.S. Senate, and was told to go up and do 
whatever Ambassador Danforth told me to do. To this day, he is 
the only famous person whose picture is in my office of the two 
of us sitting in the national security hearing of the national 
Security Council at the United Nations. He served with 
distinction there, as he did here in the Senate.
    It is good to have you back home. Please go ahead.


    Senator Danforth. Thank you, Mr. Chairman. It is very good 
to be back, especially since this is only a cameo appearance 
back in the Senate. But I appreciate your comments, and I am 
glad to know that my picture is on your wall. You have not told 
me whether there are flowers in front of the picture, but I am 
happy to hear that.
    Mr. Chairman, I do have a prepared statement. If it is all 
right, I will submit it for the record. Let me say this about 
my friend, Jim Cole. I have known Jim for more than 15 years. 
We both joined the Bryan Cave law firm on exactly the same 
date. Immediately after leaving the Senate, I joined it in 
1995, and Jim also came to Bryan Cave the same year.
    We have worked together. I know him well. I have the 
highest regard for him as a person and as a lawyer. Jim has 
very extensive experience in the Department of Justice. I 
believe he served there some 13 years and then entered private 
    I consider Jim to be a lawyer's lawyer. There is, at least 
I have seen no ideological or political bone in his body. He is 
a person who will call them as he sees them and will act in the 
most professional way.
    Senator Cardin referenced the work that Jim Cole did as the 
Special Counsel to the House Ethics Committee. I remember that 
at the time that Jim was doing that work, I got a phone call 
from Adam Clymer, who at the time was a reporter for the New 
York Times, and Adam Clymer said to me, ``Who is this Jim Cole? 
He is your law partner. I do not know anything about him.'' And 
Adam Clymer said, ``He is so close-mouthed in conducting an 
investigation that when I''--Adam Clymer--``asked him where he 
was born, he would not answer the question.'' So I think that 
that, Mr. Chairman, is a mark of professionalism and an 
indication of the kind of person Jim Cole is.
    We worked together particularly right after the Enron 
scandal broke, and there were allegations that Arthur Andersen 
had destroyed records. We were retained by Arthur Andersen and 
asked to examine their record retention policy and to create 
for them a new policy, which we did. And I can tell you again 
that Jim was very, very professional in doing this. No corner 
is cut by Jim Cole.
    So it is a privilege for me to be here on his behalf and to 
tell the Committee that it is my hope that he is confirmed and 
that this Committee will move him forward with a strong 
bipartisan vote.
    [The prepared statement of Mr. Danforth appears as a 
submission for the record.]
    Chairman Leahy. I appreciate you and what you had to say. I 
should also note that when Senator Danforth retired from the 
Senate, we did not let him totally retire. He was appointed by 
then Attorney General to lead the investigation of the FBI's 
standoff with the Branch Davidians in 1993. President Bush sent 
him in 2001 as a Special Envoy to the Sudan, and after that he 
was tapped to be U.S. Ambassador to the United Nations.
    I have no questions of Senator Danforth other than to say I 
am delighted to have him back here.
    Senator Sessions. I am, too, and you are so well respected 
and remembered, Senator Danforth, and we appreciate your 
service in the Senate and post-Senate for the good of the 
country. Thank you very much.
    Senator Danforth. Thank you very much.
    Chairman Leahy. Anybody else?
    [No response.]
    Well, then, Senator Danforth, thank you very much. I know 
you have a pressing engagement in Pennsylvania. I wish you well 
in it.
    Senator Danforth. Thank you, Mr. Chairman.
    Chairman Leahy. Mr. Cole, before you sit down, would you 
please stand and raise your right hand? Do you swear that the 
testimony you are about to give before the Committee will be 
the truth, the whole truth, and nothing but the truth, so help 
you God?
    Mr. Cole. I do.
    Chairman Leahy. Thank you very much. Please sit down.
    Before we begin, Mr. Cole, you have members of your family 
here. Would you please introduce them? Because someday this 
will be in the Cole family archives, and they will all know 
they were here. Please go ahead.
    Mr. Cole. Thank you, Mr. Chairman. It is my honor to 
introduce my family members. I have here today behind me my 
wife, Susan, who is, put simply, my best friend. She has also, 
unfortunately, had to put up with a great deal from me in my 
career, long times away from home trying cases, both for the 
Justice Department and in private practice, and putting far too 
much of the burden of our family on her. I will apologize to 
her in advance if I am confirmed because I may have to do a 
little bit more of that in the future. But she has been my rock 
and my support, and I thank her greatly for everything.
    Also behind me is my daughter, Amanda, and my son, Jackson. 
These are two children that a parent could not be prouder of. 
My daughter currently finished the College of Charleston down 
in South Carolina and is living down there, a constituent of 
Senator Graham's at this point. And my son is on his way to 
college in Louisiana where, obviously, the huge issues about 
the gulf are swirling around, and he will be going to a school 
that has a tradition of public service and of helping in the 
community, and he looks forward to helping in that regard.
    Also here today is my mother-in-law, Audrey Levin; my 
brother-in-law, Daniel Levin; and Marilyn Pearlman, my aunt. 
And I welcome them all. Thank you, Senator.
    Chairman Leahy. Thank you. Please go ahead, sir.

                   U.S. DEPARTMENT OF JUSTICE

    Mr. Cole. Chairman Leahy, Ranking Member Sessions, thank 
you for the opportunity to appear before the Committee today. I 
am honored by President Obama's nomination of me to be the 
Deputy Attorney General, and I look forward to describing for 
you the goals I hope to accomplish if confirmed by the Senate.
    If confirmed, I will be returning to the Department where I 
served for 13 years as a career prosecutor. In a sense, this 
would be for me like returning home.
    My earlier service at the Department spanned the terms of 
three Presidents, and I had the privilege of working for five 
Attorneys General, both Republicans and Democrats. My 13 years 
in the Department were filled with some of the most rewarding 
experiences of my professional career, and it was a privilege 
to work with and learn from people who strove every day to 
uphold the highest traditions of excellence in protecting the 
American people and upholding the rule of law.
    I joined the Department in 1979, through the Honors 
Graduate Program straight from law school, and spent my early 
years as a trial attorney in the Criminal Division. I developed 
expertise in the public corruption area and prosecuted, among 
others, a Federal judge, a Federal prosecutor, and a Member of 
Congress. Eventually I served as Deputy Chief of the Public 
Integrity Section. I was proud to work in this field because it 
was--and it and still is--important to me that the American 
people know that public officials are serving the public 
interest and not their own.
    In 1992, I went into private practice where I have engaged 
in both civil and criminal litigation. I have also been called 
upon to help companies establish or improve programs that 
monitor compliance with laws and regulations. For example, as 
Senator Danforth mentioned, he and I worked closely to develop 
document retention policies for Arthur Andersen after the Enron 
investigation uncovered serious deficiencies.
    In 1995, as noted by Senator Cardin, I served for 14 months 
as the Special Counsel to the U.S. House of Representatives 
Committee on Standards of Official Conduct. I led an 
investigation into allegations that a high-ranking member had 
improperly used tax-exempt money for partisan purposes and had 
provided misleading information to the Committee. I take pride 
in the fact that my investigation led to a bipartisan 
resolution of the matter even though it took place in a very 
partisan environment. Our recommendations were approved by an 
overwhelming majority of the full House.
    In 2005, I was selected by the Justice Department and the 
SEC to serve as an independent monitor at the insurance company 
AIG. I was first tasked by court order to look at 5 years of 
transactions to determine if AIG assisted any of its clients 
to, as they say, ``cook their books'' through the use of 
complex transactions. That work led to another appointment in 
2006, in which I developed financial reporting and regulatory 
compliance programs for the company. While the company resisted 
some of my efforts, I insisted on tough measures.
    Should I have the honor of becoming Deputy Attorney 
General, my first and foremost duty will be to help the 
Attorney General keep Americans safe. We must continue to do 
everything in our power to protect Americans from the threat of 
terrorism, consistent with the rule of law. We must use all 
available lawful means to protect our national security, 
including, where appropriate, military, intelligence, law 
enforcement, diplomatic, and economic tools and authorities. We 
must strongly defend this country from attacks by terrorists, 
consistent with our core values.
    I would also work closely with the Attorney General to 
reinvigorate the Department's traditional law enforcement 
mission. The Department of Justice must redouble its efforts to 
combat financial fraud, mortgage fraud, and health care fraud, 
to enforce civil rights laws and to thoroughly investigate and 
prosecute environmental crime. I believe that my experiences in 
the public and private sectors have equipped me well to address 
these problems, which are so costly to all Americans.
    I very much look forward to serving with an Attorney 
General whom I respect and with whom I have a strong working 
relationship. I share the Attorney General's goals of 
protecting the American people against both foreign and 
domestic threats; ensuring the fair and impartial 
administration of justice; assisting State and local law 
enforcement; and defending the interests of the United States. 
I look forward to doing all I can to achieve these goals.
    Perhaps most of all, I look forward, with your support, to 
coming home and again serving with the fine men and women at 
the Justice Department.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Cole appears as a submission 
for the record.]
    [The biographical information of Mr. Cole follows.]

    [GRAPHIC] [TIFF OMITTED] 64377.001
    [GRAPHIC] [TIFF OMITTED] 64377.002
    [GRAPHIC] [TIFF OMITTED] 64377.003
    [GRAPHIC] [TIFF OMITTED] 64377.004
    [GRAPHIC] [TIFF OMITTED] 64377.005
    [GRAPHIC] [TIFF OMITTED] 64377.006
    [GRAPHIC] [TIFF OMITTED] 64377.007
    [GRAPHIC] [TIFF OMITTED] 64377.008
    [GRAPHIC] [TIFF OMITTED] 64377.009
    [GRAPHIC] [TIFF OMITTED] 64377.010
    [GRAPHIC] [TIFF OMITTED] 64377.011
    [GRAPHIC] [TIFF OMITTED] 64377.012
    [GRAPHIC] [TIFF OMITTED] 64377.013
    [GRAPHIC] [TIFF OMITTED] 64377.014
    [GRAPHIC] [TIFF OMITTED] 64377.015
    [GRAPHIC] [TIFF OMITTED] 64377.016
    [GRAPHIC] [TIFF OMITTED] 64377.017
    [GRAPHIC] [TIFF OMITTED] 64377.018
    [GRAPHIC] [TIFF OMITTED] 64377.019
    [GRAPHIC] [TIFF OMITTED] 64377.020
    [GRAPHIC] [TIFF OMITTED] 64377.021
    [GRAPHIC] [TIFF OMITTED] 64377.022
    [GRAPHIC] [TIFF OMITTED] 64377.023
    [GRAPHIC] [TIFF OMITTED] 64377.024
    [GRAPHIC] [TIFF OMITTED] 64377.025
    [GRAPHIC] [TIFF OMITTED] 64377.026
    [GRAPHIC] [TIFF OMITTED] 64377.027
    [GRAPHIC] [TIFF OMITTED] 64377.028
    [GRAPHIC] [TIFF OMITTED] 64377.029
    [GRAPHIC] [TIFF OMITTED] 64377.030
    [GRAPHIC] [TIFF OMITTED] 64377.031
    [GRAPHIC] [TIFF OMITTED] 64377.032
    [GRAPHIC] [TIFF OMITTED] 64377.033
    [GRAPHIC] [TIFF OMITTED] 64377.034
    [GRAPHIC] [TIFF OMITTED] 64377.035
    [GRAPHIC] [TIFF OMITTED] 64377.036
    [GRAPHIC] [TIFF OMITTED] 64377.037
    [GRAPHIC] [TIFF OMITTED] 64377.038
    [GRAPHIC] [TIFF OMITTED] 64377.039
    [GRAPHIC] [TIFF OMITTED] 64377.040
    [GRAPHIC] [TIFF OMITTED] 64377.041
    [GRAPHIC] [TIFF OMITTED] 64377.042
    [GRAPHIC] [TIFF OMITTED] 64377.043
    [GRAPHIC] [TIFF OMITTED] 64377.044
    [GRAPHIC] [TIFF OMITTED] 64377.045
    [GRAPHIC] [TIFF OMITTED] 64377.046
    [GRAPHIC] [TIFF OMITTED] 64377.047
    [GRAPHIC] [TIFF OMITTED] 64377.048
    [GRAPHIC] [TIFF OMITTED] 64377.049
    [GRAPHIC] [TIFF OMITTED] 64377.050
    [GRAPHIC] [TIFF OMITTED] 64377.051
    [GRAPHIC] [TIFF OMITTED] 64377.052
    [GRAPHIC] [TIFF OMITTED] 64377.053
    [GRAPHIC] [TIFF OMITTED] 64377.054
    [GRAPHIC] [TIFF OMITTED] 64377.055
    [GRAPHIC] [TIFF OMITTED] 64377.056
    [GRAPHIC] [TIFF OMITTED] 64377.057
    [GRAPHIC] [TIFF OMITTED] 64377.058
    [GRAPHIC] [TIFF OMITTED] 64377.059
    [GRAPHIC] [TIFF OMITTED] 64377.060
    [GRAPHIC] [TIFF OMITTED] 64377.061
    [GRAPHIC] [TIFF OMITTED] 64377.062
    [GRAPHIC] [TIFF OMITTED] 64377.063
    [GRAPHIC] [TIFF OMITTED] 64377.064
    [GRAPHIC] [TIFF OMITTED] 64377.065
    [GRAPHIC] [TIFF OMITTED] 64377.066
    [GRAPHIC] [TIFF OMITTED] 64377.067
    [GRAPHIC] [TIFF OMITTED] 64377.068
    [GRAPHIC] [TIFF OMITTED] 64377.069
    [GRAPHIC] [TIFF OMITTED] 64377.070
    [GRAPHIC] [TIFF OMITTED] 64377.071
    [GRAPHIC] [TIFF OMITTED] 64377.072
    [GRAPHIC] [TIFF OMITTED] 64377.073
    [GRAPHIC] [TIFF OMITTED] 64377.074
    [GRAPHIC] [TIFF OMITTED] 64377.075
    [GRAPHIC] [TIFF OMITTED] 64377.076
    [GRAPHIC] [TIFF OMITTED] 64377.077
    [GRAPHIC] [TIFF OMITTED] 64377.078
    [GRAPHIC] [TIFF OMITTED] 64377.079
    [GRAPHIC] [TIFF OMITTED] 64377.080
    [GRAPHIC] [TIFF OMITTED] 64377.081
    [GRAPHIC] [TIFF OMITTED] 64377.082
    [GRAPHIC] [TIFF OMITTED] 64377.083
    [GRAPHIC] [TIFF OMITTED] 64377.084
    [GRAPHIC] [TIFF OMITTED] 64377.085
    [GRAPHIC] [TIFF OMITTED] 64377.086
    Chairman Leahy. Well, thank you. Thank you very much.
    We have had some notes back and forth here that General 
Petraeus, while testifying in another Committee, appeared to be 
in a condition of fainting but has, we are told, left under his 
own power, walked out. General Petraeus, of course, is one of 
those people who works around the clock and may have simply 
been exhausted and dehydrated. But I think it is safe to say 
that every single member of this Committee hopes that the 
general will recover and be well.
    Attorney General Holder told this Committee that the United 
States is at war with a vicious enemy who targets our soldiers 
on the battlefield in Afghanistan and our civilians on the 
streets here at home. He emphasized that, in taking on this 
threat, we can and should use every instrument at our disposal 
to defeat terrorism, including military commissions and our 
Federal criminal courts. He has said repeatedly--and I agree 
with him--that prosecuting these enemies in Federal criminal 
courts is in many instances our strongest tool to gain not only 
intelligence but also convictions.
    Now, it has been mentioned about your 2002 column 
advocating the use of Federal criminal courts in prosecuting 
terrorism suspects. You said the Attorney General is not a 
member of the military fighting in war; he is a prosecutor 
fighting crime.
    Now, it is 8 years later. How do you view the efforts to 
combat the threat of terrorism and the role of the Justice 
    Mr. Cole. Mr. Chairman, perhaps one of the most important 
duties of the Justice Department is to fight terrorism. We have 
an unprecedented threat against our country in this area, and 
as I stated in my article in 2002, it is an unprecedented 
threat that we had never seen before, and we must use every 
resource we have and the Attorney General must use every 
resource he has to fight this scourge and this enemy.
    The point of the article that I wrote in 2002 was to state 
that we must do so consistent with the rule of law. That was 
the point of the article, and that was the core of the article. 
It was not really meant to address whether or not we are at 
war. It was meant to address how we deal with one of the most 
devastating problems presented to our country perhaps in its 
    The view that I have come to and have developed and is 
consistent with that article is we must use every tool we have 
to fight terrorism. That includes both military commissions and 
Article III courts. At the time I wrote that article, the 
military commissions had grave questions about whether they 
were constitutional and whether they were consistent with the 
rule of law. And subsequent to writing that article, the 
Supreme Court, I believe on more than one occasion, stated that 
those military commissions, as they were constituted at the 
time and subsequent efforts, were not making and meeting 
constitutional muster.
    Chairman Leahy. In fact, under both Republican 
administrations and Democratic administrations, we have used 
our Federal courts on terrorism matters. I am told over 400 
individuals have been convicted on terrorism-related charges. 
We certainly--these were in our courts--obtained valuable 
intelligence, much of which I could not go into in an open 
hearing, but those of us who have been briefed know of the very 
valuable intelligence we have received from these people. There 
are hundreds of terrorists locked up in our prisons, so that is 
    Now, I will note that three people have been convicted in 
military commissions. Four hundred to three gives some kind of 
view here.
    Do you agree that we should have all our tools available to 
us? Even though there have only been three convictions in 
military commissions, we should have those tools, but we should 
also have the Federal prosecutors and courts where we have 
proven that we were able to get 400 individuals convicted.
    Mr. Cole. Yes, Mr. Chairman, I agree with you completely. 
We need all of the tools. The courts have been very effectively 
used. As you know, there have been hundreds of prosecutions, 
including of 9/11 attackers, successfully done in court. We 
have obtained, as I understand, an enormous amount of 
intelligence through that, and we have been quite successful.
    The military commissions have now been improved to where 
they do meet constitutional muster, and we need both of those 
tools. Each one has its advantages and its limitations, and we 
need to be able to use whatever tools will best and most 
effectively do the job in each individual instance.
    Chairman Leahy. Every day we look in the news, and we see 
what has happened after the collapse of British Petroleum's 
Deepwater Horizon oil rig. Oil continues to go into the Gulf of 
Mexico. It is heartbreaking to see the contaminants wash up on 
shore, 11 people killed, precious resources being destroyed, 
families that have created businesses that they have spent 
generations building up their businesses, they played by the 
rules, they have done everything they are supposed to, and now 
because of BP's actions, something totally out of their 
control, they are losing that.
    I agree with both the President and the Attorney General 
when they say that American taxpayers should not have to pay 
for the economy and recovery, but BP should. I introduced, 
along with Senator Whitehouse and others, the Environmental 
Crimes Enforcement Act, a bill to deter criminal wrongdoing by 
big oil and other corporations. It increases sentences for 
environmental crimes. Clean Water Act offenses can have an 
enormous effect on people, on their livelihoods, actually on 
their whole way of life. And if there is criminal conduct, then 
the sentences should reflect it. But also it makes restitution 
mandatory for criminal Clean Water Act violations.
    If confirmed, will you support efforts to hold BP and other 
companies responsible for environmental disasters and 
accountable for their actions?
    Mr. Cole. Mr. Chairman, as the Attorney General and the 
President have both said, not a penny of taxpayers' money is 
going to be used for reparations or anything like that. It will 
all come from BP. And I believe that is the right way that this 
should go.
    We have seen through what has happened in the gulf the full 
nightmare of what can happen when environmental catastrophes 
occur. The economic toll, the environmental toll, all the loss 
of life--these are very, very serious matters, and they need to 
be dealt with seriously.
    As I understand it, the Department has already begun to do 
that and has launched investigations in every avenue that it 
has to try and deal with this and to make sure that reparations 
are made and that people whose livelihoods have been destroyed 
are compensated.
    Chairman Leahy. Well, my time is up, but I also have a 
question about what you learned having been appointed to 
investigate AIG and the economic disaster they caused by their 
    Senator Sessions.
    Senator Sessions. Thank you.
    I have said repeatedly that BP is liable and should be held 
liable for their responsibilities to the extent of their 
existence. In other words, they are not too big to fail. They 
have to meet the requirements as the responsible party, which 
they signed. But I guess as a lawyer I was a little worried 
about your so confidently stating that they were going to pay 
for everything that they are--that occurred in this 
circumstance, rather broad language, having looked at the law 
and offered legislation myself to try to expand the 
responsibilities. Do you believe that BP should be required to 
pay things they are not lawfully required to pay?
    Mr. Cole. Well, I think the law obviously, Senator 
Sessions, governs in this, but I know that there are 
considerations and efforts underway that if there are any 
limitations imposed by the law, people are starting to look at 
whether or not there are mechanisms to remove those limitations 
so that there can be, to the greatest extent possible, an 
assurance that BP will bear the costs for what happened.
    Senator Sessions. Well, I think that is fundamentally 
correct, but as the second-in-command law enforcement officer 
in America, I think everybody wants to know that they are going 
to be treated fairly under your leadership, and I hope that you 
do not mean you would undertake any action to collect that.
    I noticed, just an aside, you did a speech entitled ``Role 
of an In-House Lawyer in a Corporation'' in October of 2006, 
and you stated this: ``The experience with Arthur Andersen 
taught the Government something. The consequences were too 
drastic and hurt too many innocent employees. The Government 
now tries to work settlements with companies that find 
themselves in that kind of predicament, and the company does 
not get indicted and, therefore, can continue to exist.''
    Well, we know that Arthur Andersen failed immediately upon 
being charged, as I recall that, and so I am not suggesting 
this is a totally improper statement, but it seems to go beyond 
strict enforcement of the law and try to preserve corporations 
who perhaps should be charged and suffer whatever consequences 
might result from their criminal acts.
    Do you have any second thoughts about that quote that I 
just read?
    Mr. Cole. Senator Sessions, I do not. The point of that was 
to say that there are reasons why you charge corporations and 
reasons why you do not charge corporations. And certainly the 
Justice Department, starting back when the Attorney General 
Eric Holder was Deputy Attorney General, has issued a series of 
memoranda that guide prosecutors in determining when a 
corporation should be charged.
    The issue is so sensitive because when you charge a 
corporation and you cause its demise through that charge, 
thousands and thousands of employees who had no role in the 
misconduct are hurt. Thousands and thousands of shareholders 
who had no role in the misconduct and whose savings were 
invested in that corporation are hurt. And it is those people 
who had no role who are hurt who are the ones you need to think 
about as well when you decide whether to charge a corporation.
    Senator Sessions. Well, I think that is, I guess, a 
reality, but it has got to be carefully thought through, or 
else you are just picking and choosing winners. You are saying 
BP is too big to fail. They have got employees, too. This is a 
dangerous philosophy. Normally, I was taught, if they violated 
the law, you charge them. If they did not violate the law, you 
do not charge them.
    Mr. Cole. Well, one of the issues, Senator, that is very 
much, as I understand it, in the forefront of the prosecution 
decisions in the Department is to prosecute the individual 
executives in these companies who are responsible for these 
criminal acts, because that is how you are going to get the 
most deterrence.
    Senator Sessions. But are you now saying that you are 
backing off corporate indictments?
    Mr. Cole. No, I am not at all. I am just saying there are 
many ways to be quite effective, and I think you have to 
balance the interests of how much damage you are doing to 
people who had nothing to do with the wrongdoing versus how 
much deterrence you are going to be placing on future conduct 
like this. And I think you have to make sure that you are 
effective in the prosecution, both of corporations and of the 
individual officers.
    Senator Sessions. So how much empathy you have for the 
employees. Well, anyway, it is a tough decision. I guess we 
could go around and around, but I think you need to be careful. 
That philosophy has some danger to it. I think you fully 
recognize that as the experienced prosecutor that you are.
    I also salute you for saying you want to reinvigorate 
traditional prosecutions in the Department. I hope that you 
will look at the numbers, you will look at the prosecutions, 
and make sure that they are working effectively and that they 
are high enough based on the number of prosecutors and 
investigators in the country. I am not sure that we are. We 
have added a lot of prosecutors and Assistant United States 
Attorneys around the country. They are paid big salaries. They 
need to be producing day after day.
    My problem with your op-ed the year after 9/11 was that you 
did not suggest improving the military commissions; you 
basically flatly stated that these were crimes and they should 
be prosecuted as crimes. And at one point you talked about, I 
did not see that in that op-ed, but it was a position directly 
critical of the concept of military commissions.
    Now, are you saying that you left something out you would 
have liked to have put in that op-ed and that if you draw up a 
good military commission, you do not think it undermines the 
Constitution of the United States?
    Mr. Cole. Senator, my view is if you have a good military 
commission that conforms with the rule of law, it is a very 
useful tool. I commend to the Committee the speech recently by 
David Kris, the Assistant Attorney General for the National 
Security Division, that very, very excellently described the 
advantages of both military commissions and Article III courts 
and use in the fight against terror. Sometimes it is right to 
go with an Article III court. Sometimes it is right to go with 
a military commission. Now that we have military----
    Senator Sessions. Could I ask you--and my time is up. If an 
individual is arrested with a bomb attempting to attack the 
United States, a non-citizen, that individual, as we had on 
Christmas Day, why wouldn't the best procedure be to 
presumptively charge them through the military commission 
process since we have authority that shows they can be brought 
back into the civilian process and tried as a normal criminal? 
And you would not then have to appoint lawyers. They would be 
treated as the enemy that they are. And you would not have to 
have speedy trial acts, certain discovery rules, and things 
that really put burdens on the Government in a time of war that 
would not normally be in our best interests.
    Mr. Cole. Senator Sessions, there are instances here where 
if you would arrest someone like that, they may, particularly 
in the military commission realm now, get many of the rights 
that they get in an Article III court. And it is really not 
about what rights we are giving them. It is about the effective 
tool we have.
    Senator Sessions. But if you hold them in a military 
commission, they do not have to be given a lawyer, they do not 
have to be warned of rights, and they do not have to be even 
set for trial. They can be held as a prisoner of war, can they 
    Mr. Cole. If they are detained and they are associated with 
al Qaeda or the Taliban, yes, they can be held as a prisoner of 
war. But you have to be able to establish that they are 
associated with the al Qaeda or Taliban to be able to do that.
    Senator Whitehouse. [presiding.] Senator Kohl.
    Senator Kohl. Thank you very much, Senator Whitehouse.
    Mr. Cole, many people, of course, have advocated for a long 
time that Guantanamo Bay needs to be closed. But there is 
another consideration that is particularly vital during these 
difficult economic times.
    On June 7th, the Washington Post posted an article 
revealing that the United States has spent more than $500 
million on the Guantanamo Bay prison and support facilities. 
The Department of Defense spends $150 million a year to operate 
Guantanamo. But knowledgeable people say it would cost half 
that amount to operate a comparable facility within the United 
    Of course, our Nation's safety is our first priority, but 
would you agree that the cost should be a factor as the 
administration decides how to proceed with closing the prison? 
And what role do you think cost should play in Congress' 
deliberation about what to do with respect to Guantanamo?
    Mr. Cole. Senator, I think cost does play a role. I do not 
think it can be the determinative role because the primary 
issue in trying to decide how to close Guantanamo is the safety 
of the American people. That is what is going to override, as I 
understand it, almost every decision that will be made in that 
    But that is not the only thing. Cost is important. We have 
dire economic situations in our country, we have large 
deficits, and we need to be smart about where we use our 
dollars. So cost certainly plays into the decision on how to 
close Guantanamo and almost every other decision we face here 
in the United States.
    Senator Kohl. Mr. Cole, as you know, the Inspector General 
recently issued a troubling report providing that the Justice 
Department does not have plans or policies in place to respond 
to a biological, chemical, or nuclear attack. It was concluded 
that in the event of such an attack, the Department is ``not 
prepared to fulfill its role to ensure public safety.'' 
Clearly, this is not something that any of us want to hear.
    What are your thoughts on this issue? And what immediate 
steps will you take to address this should you be confirmed?
    Mr. Cole. Senator, I have not closely studied the report. I 
have certainly read about it. I was at least encouraged to see 
that it came to the conclusion that the FBI, one of the largest 
components in the Justice Department, did have a good WMD 
program for its employees. But it still leaves the concern 
about what other components in the Department need to do.
    Certainly if I am confirmed, one of the first things I am 
going to do is look into this, look into the recommendations 
that the IG has made, and do whatever I can to make sure that 
we put in place appropriate protections for all of the 
employees at the Justice Department to make sure they are safe.
    Senator Kohl. Mr. Cole, it seems that the antitrust 
enforcement loses out to other interests in internal 
administration deliberations. One example is that we have 
sought a letter from the Justice Department in support of our 
legislation to repeal the freight railroad industry's 
undeserved antitrust exemption. Despite the fact that Assistant 
Attorney General Varney has expressed her support for our 
legislation, no such letter has been forthcoming, apparently 
because of objections from the Department of Transportation.
    Do I have your commitment to work inside the administration 
to secure such a letter? And, more generally, how will you 
ensure that antitrust enforcement and competition policy is 
seen as a priority in the deliberations between one agency and 
    Mr. Cole. Senator, certainly the antitrust issues are very 
important, and Assistant Attorney General Varney, as I 
understand it, has done quite an excellent job in her role in 
this area.
    You state that there are a number of different agencies 
involved. I obviously am not privy to all the information that 
is going on within the Department, all of the considerations 
that may be involved in delaying this letter. Certainly, if 
confirmed, I would, once I get there, be happy to work with you 
and to work with the Department and work with all the relevant 
agencies on making sure that we have vigorous antitrust 
enforcement in all the areas, including the one you note.
    Senator Kohl. As we discussed in my office when we met, 
that is a high priority that I have, and I would like to feel 
that you will also feel that it is a high priority to get that 
letter of support. I know you cannot assure me of it this 
morning, but I am listening carefully to what you say.
    Mr. Cole. I appreciate that, Senator. This is a very 
important issue and one which I will look into, if confirmed, 
when I get there.
    Senator Kohl. Thank you.
    For several years, I and others have worked to restore COPS 
funding following years of cuts by the prior administration. 
Will you work to ensure that the COPS program continues to be 
adequately funded? And will you support the bill that we have 
to create a permanent COPS office within the Justice 
    Mr. Cole. Senator, the COPS program is a very important 
part of a holistic law enforcement approach to crime throughout 
the country and to helping State and local law enforcement 
achieve some real gains and goals in the fight against crime. 
It is something I know the Department supports in many, many 
different ways, and I cannot imagine that there would be any 
lack of support in this area within the Department. It is an 
important program and receives the highest priority there.
    Senator Kohl. Thank you, Mr. Cole.
    Thank you, Senator Whitehouse.
    Senator Whitehouse. Thank you, Senator Kohl.
    Senator Hatch is not here. He is next in order. So we will 
go on to Senator Cornyn and then Senator Cardin.
    Senator Cornyn.
    Senator Cornyn. Thank you, Mr. Chairman.
    Good morning, Mr. Cole. Congratulations to you and your 
family for your nomination.
    I have questions pertaining to some of your writings and 
opinions relative to the war on terror, and I appreciate the 
fact that when you wrote this article back in 2002, the state 
of the military commissions was in flux, both here in Congress 
and in the Supreme Court. But you recognize now, I think you 
have said, that military commissions can be an appropriate 
venue for trying foreign terrorists who have committed acts of 
terrorism against the United States. Is that correct?
    Mr. Cole. That is correct, Senator.
    Senator Cornyn. Let me ask you a little bit, there seems to 
be some confusion about Miranda, about Miranda rights. As I 
recall, when you detain someone and you read them their Miranda 
rights, the first thing you tell them is their right to remain 
silent. Is that correct?
    Mr. Cole. That is probably the first part of the Miranda 
rights, yes.
    Senator Cornyn. And why in the world would you read a 
suspected terrorist Miranda rights if, in fact, the first thing 
you want from someone who has committed a terrorist act is to 
find out more information about their travels, their 
associations, their planning, and their knowledge of terror 
networks? Why would you tell them the first thing out of the 
starting gate is that they have a right to remain silent? Or do 
you not support reading Miranda rights to suspected terrorists?
    Mr. Cole. Senator, Miranda is a constitutional requirement 
that comes, as the Supreme Court has said, not from statute but 
from the Constitution. There is an exception that the Court has 
carved out in the Quarles case, which is the public safety 
exception. When you capture a terrorist and there is the 
ticking time bomb or another plot evident, you can ask all the 
questions you want to secure the public safety without Miranda 
    Senator Cornyn. I understand. I understand that point, and 
I agree with you. I guess the question I would have for you is: 
What is the consequence of a law enforcement officer not 
providing Miranda rights to a detainee? They may 
constitutionally do so, correct? And the only result if they 
fail to do it and a court decides they should have done it 
would be to exclude evidence produced by that--any statement 
they might make or any fruit of the poisonous tree. Is that 
    Mr. Cole. That is correct. The reason to give Miranda 
warnings is to make sure you can use whatever statements you 
get. Now, my experience, frankly, in criminal law for 30 years 
is that frequently, after being given Miranda warnings and 
after being given a lawyer, defendants and people who are 
detained talk. And they talk a lot.
    Senator Cornyn. Well, that is when--but you cannot compel 
them, correct?
    Mr. Cole. You cannot compel them, no.
    Senator Cornyn. Consistent with Miranda. But I guess the 
problem I have had during the public discussion about whether 
Miranda rights should be given to people suspected of terrorist 
actions, both here and on the battlefield, is a confusion in 
the approach. And I worry, as others have stated, that we are 
lapsing back into what the 9/11 Commission called sort of a 
criminal law mind-set as opposed to one that, to use your 
words, I think, uses all the tools available in the national 
security interests of the United States.
    So just to summarize, you would agree with me that if on 
Christmas Day the Miranda rights had not been given to the man 
who attempted to blow up that airliner, that you still could 
have tried him either in a military commission or in a civilian 
court and gotten a conviction if you were able to use other 
evidence other than his own statement or any information that 
might have been learned from that statement. In other words, if 
you do not give someone--if a judge says you should have given 
Miranda rights and you do not, that does not mean you are 
unable to get a conviction in every case, does it?
    Mr. Cole. It does not mean you are not able to get a 
conviction. It certainly creates a number of issues and a 
number of obstacles to getting a conviction that I know most 
prosecutors try to avoid. There are enough surprises at any 
trial that we try to avoid as many as we can in bringing any 
    Senator Cornyn. Do you agree with the Attorney General that 
the trial of Khalid Sheikh Mohammed is still--that trial in a 
civilian court in Manhattan is still an option?
    Mr. Cole. At this point, Senator, I know that matter is 
currently under review in the administration based on what I 
read in the paper. These are decisions that have to be made 
based on all of the facts and circumstances that relate to the 
case. Not being a part of the Department of Justice right now, 
I do not know all the facts and circumstances that related to 
Khalid Sheikh Mohammed's prosecution.
    Senator Cornyn. I appreciate that, and I understand 
completely your statement. But would you agree with me that we 
ought to take into concern that one of the considerations that 
ought to be taken into account is the security and safety of 
citizens at the courthouse and in proximity to the courthouse 
should that be the focus of another terrorist attack? Would 
that be a concern?
    Mr. Cole. We definitely should take into account the safety 
of our citizens in almost every decision we make. That probably 
should be the first thing we take into account.
    Senator Cornyn. And if instead of pleading guilty, as he 
indicated he would do, before a military commission, if he pled 
not guilty and used this as a propaganda tool to incite like-
minded jihadists around the world, would that be a concern?
    Mr. Cole. Senator, as I have read throughout the time since 

9/11, we have tried and convicted in our Article III courts 
hundreds of terrorists, including Zacharias Moussaoui, who made 
the same kinds of threats----
    Senator Cornyn. I understand. But I guess my question has 
to do with the mastermind of 9/11, Khalid Sheikh Mohammed. Do 
you think that providing him a platform for propagandizing 
like-minded jihadists around the world, should that be a matter 
of concern?
    Mr. Cole. Well, I think it is--the issue of whether or not 
a forum is open is really one we are going to face whether or 
not it is an Article III or a military commission. Both of them 
have requirements of openness to the public to view. So those 
are issues that are going to come up, regardless of which forum 
would be chosen at the end of the day.
    Senator Cornyn. And if I can ask just one last question, 
this has to do with if there was an attempt to try Khalid 
Sheikh Mohammed in civilian court in the continental United 
States and for some reason he was acquitted, don't you think it 
would make good sense and be good lawyering to determine what 
his immigration status would be, for example, whether he would 
be eligible to seek asylum in the United States should he be 
    Mr. Cole. There is no question we should deal with that, 
and, again, I do not know, but I would imagine the Justice 
Department has already looked at that issue, as I think they 
have with any number of the detainees, as to what their status 
would be at any given moment, as to whether they could ever be 
transferred, released, or in any way let go. Separate issues 
between a prosecution and the ability to actually let somebody 
    Senator Cornyn. I hope----
    Senator Whitehouse. Senator Klobuchar.
    Senator Cornyn. Thank you.
    Senator Klobuchar. Thank you very much, Mr. Chairman. 
Welcome, Mr. Cole. I enjoyed our meeting that we had in the 
office, and I enjoyed the focus that we had on some of the 
bread-and-butter issues of the Justice Department. It was my 
impression, being a prosecutor on the local level for 8 years, 
that it makes a big difference whether or not the Justice 
Department and the U.S. Attorney's Offices are functioning on a 
day-to-day basis and doing their jobs. I was very concerned 
when Attorney General Gonzales was head of that Department, 
some of the repercussions that it had on our own local U.S. 
Attorney's Office, and I just wanted your thoughts on the 
morale issues. There were some serious concerns when Attorney 
General Holder took over, thoughts on that, as well as the 
focus on some of the bread-and-butter issues--white-collar 
crime, health care fraud, the drug crime, some of the bread-
and-butter issues that I feel that the Justice Department, 
whether intentionally or not, had fallen away from during that 
period. Thank you.
    What are your thoughts on it?
    Mr. Cole. Oh. The Justice Department--and I think rightly 
so from an outsider's view--after 9/11 had to devote an 
enormous number of resources to national security. It was a new 
area and a new focus and certainly very important. And 
resources being limited no matter what had to be diverted. So a 
lot of the bread-and-butter issues were not given the attention 
that they needed to be given in the course of that run-up.
    Now we again have limited resources, and I think it is one 
of the important issues for the Justice Department to make sure 
that we reinvigorate the traditional bread-and-butter functions 
of the Department to fight fraud, to fight health care fraud, 
to fight financial fraud, to fight public corruption, to fight 
every form of crime that it has fought, and just as 
importantly, to partner with State and local law enforcement to 
make sure that there is a coordinated fight against crime. This 
is not something that is done by one or the other. It is done 
    Senator Klobuchar. When I was a prosecutor, I saw firsthand 
the effectiveness of some of these task forces on a 
multijurisdictional basis with local and State and Federal, and 
I will tell you that we have recently had big decreases the 
last 8, 10 years in crime, and the city of Minneapolis, which 
is our major metropolitan area, although just in the last few 
months we have seen some increases. So I hope when, as you get 
in there you will focus on some of those multijurisdictional 
task forces. I do think it is a smart way and it is also a way 
to coordinate resources.
    But I wanted to ask you about something that you raised, 
which was the health care fraud. I am sitting right next to 
Senator Kaufman, who worked very hard on this issue. But could 
you talk about what is going on with the HEAT task forces and 
some of the work? I am interested in this not only because I 
think it is just horrific that billions of dollars are wasted 
on health care fraud, but also one of the things I noticed when 
we had the Justice Department here was that some of our most 
disorganized health care systems in the most disorganized parts 
of the country, like Miami, where the delivery systems are 
messed up, also breed fraud. Because there is not just 
Government that is not watching over them, but the private 
sector is not watching over each other.
    Could you tell me your views on health care fraud, what is 
happening there, and give us an update.
    Mr. Cole. Well, certainly I at this point am not privy to 
everything that is going on inside the Department other than 
what I learn through reading accounts of what is happening in 
the press. I have certainly been quite impressed with the 
Department's effort through HEAT to have a very broad-based 
approach to health care.
    First of all, it is not just the criminal enforcement. It 
is also False Claims Act enforcement. It is the full civil and 
criminal package put together. And it is also not just 
scattershot. It is evidence-based. They are going to various 
jurisdictions and looking at where there is just off-the-chart 
billing that is going on in certain areas and focusing the 
resources in those areas initially. And it has created 
additional task forces as they have identified additional 
    This seems to be a very intelligent, smart use of 
resources, and at least from what I have seen in the papers, a 
very effective way to go about policing this area that is 
costing billions of dollars to our citizens.
    Senator Klobuchar. Another area that you raised, Internet 
fraud. The 2009 Internet Crime Report by the Internet Crime 
Complaint Center was released in March. It revealed that 
complaints of Internet fraud were up 25 percent from over a 
year ago and that the total loss had doubled from 2008 to 2009.
    I certainly found those cases difficult on a local basis to 
do. Sometimes it would be people in Nigeria committing these 
crimes. Sometimes it would be a multi-State fraud. And how is 
the Justice Department going to be able to assist with these 
and make this a major focus? Because I really believe that it 
is the crime of the future. We are already seeing it now. So it 
is the crime of the present as well. But crooks are using a 
computer, when they used to use a crowbar.
    Mr. Cole. You have raised a very important issue, and it is 
certainly an issue that Senator Whitehouse had raised when we 
talked. This is--I think you are right. It is the crime wave of 
the future, and it is adaptable and changeable as technology 
adapts and changes. You buy a computer, in 6 months it is 
obsolete. All of our efforts to try and fight and all of the 
Justice Department's efforts to try and fight cyber crime and 
Internet fraud are obsolete so quickly because things change so 
    So it is an area that I think needs a great deal of 
attention to try and make sure we stay as far up on the curve 
as the Justice Department can in trying to fight this in really 
an ever-changing and adaptable foe in this area of crime.
    Senator Klobuchar. Thank you very much.
    Senator Whitehouse. Senator Graham.
    Senator Graham. Thank you, sir. Congratulations, Mr. Cole. 
Is your daughter here?
    Mr. Cole. She is, Senator. Right here.
    Senator Graham. Do you like the College of Charleston? I 
will put a good word in for you. It will not help you at all.
    If she made it, you will make it. I hope you have enjoyed 
Charleston. And thanks for the money you are spending in South 
    Mr. Cole. It is my pleasure, sir.
    Senator Graham. We had a good discussion in our office 
about military commissions. I feel very comfortable that you 
understand military commissions have a role in the war, as do 
Article III courts. But I am going to express through our 
interchange here some frustrations, really not directed at you, 
but I have had some very extensive discussions with the 
administration about how Congress can help define some of the 
rules and how we can bring about some legislative changes that 
will lead us to all be safe within our values.
    Judges Lamberth and Hogan are two judges who hear habeas 
petitions from Guantanamo Bay detainees regularly, and here is 
what Judge Hogan had to say: ``It is unfortunate, in my view, 
that the legislative branch of the Government and the executive 
branch have not moved more strongly to poverty uniform, clear 
rules and laws for handling these cases.''
    There are a bunch of quotes from judges basically asking 
Congress and the executive branch to give them some assistance. 
The Attorney General has mentioned it on more than one occasion 
that there are several areas where Congress could collaborate 
with the administration to provide some guidance.
    Would you be willing to help us find that common ground?
    Mr. Cole. I would be very willing to work with the 
Committee and to work with the Congress to help find that kind 
of clarity. My view has always been the more clarity, the 
    Senator Graham. Well, the judges are asking this, and I 
very much believe in checks and balances, but our judges 
basically are sort of making this up as they go. And I think a 
uniform statute dealing with habeas right of Guantanamo Bay 
detainees not only would be helpful to the courts, it would 
make us a more secure Nation. It would allow us to potentially 
close Guantanamo Bay. The biggest problem we have with closure 
now is we have sort of lost the issue can we do it safely.
    Could you comment very quickly? What rights would a 
detainee have if they were transferred from Guantanamo Bay to 
Thompson, Illinois, let us say, if that became the prison? 
Would they have more rights in Illinois than they would in 
Guantanamo Bay?
    Mr. Cole. Senator, at least my understanding of the legal 
status here is I do not think that would change dramatically.
    Senator Graham. Could you get back with me? Because there 
is a real difference of view. I do not know the answer. I would 
love to get your thoughts after you get the job here, and I 
assume you will be confirmed.
    Now, on Miranda warnings, the goal to me when you capture 
someone who just tried to blow up an airliner or blow up a van 
in Times Square, and we believe it is a terrorist activity, is 
to find out what they know about the ongoing war. You share 
that goal. Is that correct?
    Mr. Cole. I do, Senator, yes.
    Senator Graham. And I have been working with the 
administration, Senator Durbin, and others to find some pretty 
common-sense exceptions to the Miranda rule by statute, built 
around the public safety idea, to give our intelligence 
officials and law enforcement officers a chance to find out 
more about the detainee before they start assigning lawyers to 
this person.
    Would you support that endeavor?
    Mr. Cole. I would very much, if confirmed, be anxious to 
work with the Committee and work with Congress to find a way to 
give more clarity and flexibility around the Miranda rule. It 
is a constitutional dictate, so we will have to have it, no 
    Senator Graham. Absolutely, and we could build off the 
public safety exception, have a statute that allows a couple of 
days for the intelligence community to assess who this person 
is, then go to a judge and ask permission to continue to hold 
for intelligence-gathering purposes, but only if a judge said 
yes, sort of like a FISA hearing.
    We have fleshed this out, but I am very frustrated. We are 
2 months after the initial discussion almost, and nothing has 
happened, and the war is moving on a lot faster than some of 
the solutions to deal with the war. So I would appreciate any 
efforts you could lend to this cause of getting Congress and 
the administration moving quickly to deal with real issues 
about presentment.
    You know, Mr. Kris that you mentioned before gave a speech 
yesterday that was a bit troubling to me. We have been working 
on two problems that Miranda presents--two problems with 
terrorist detention here in the United States: One, the Miranda 
warning to give some flexibility, and you are right, the 
Miranda warning itself may not be an impediment in every case, 
but I just want to give the option to the law enforcement and 
intel community. And second is presenting the detainee to a 
judge for charging within 72 hours. To me that seems to be a 
very small period of time to make an intelligent decision about 
how to handle this person.
    So we are working on some statutory relief mechanisms that 
would live within our value system, have checks and balances, 
but provide more tools to the intelligence and law enforcement 
community fighting this war. And I look forward to working with 
you on that.
    Finally, about habeas review, one case now before the 
Court, a habeas petition was granted because the Government 
could not prove at the time of capture the person was a member 
of al Qaeda. But they did have proof that the person was a 
member of al Qaeda shortly before the time of capture. One of 
the things that we are looking at is a presumption that once 
you are a member of al Qaeda, you are always a member of al 
Qaeda. But it would be a rebuttable presumption.
    Do you think tools like that would be helpful to the judges 
and to your prosecutors trying to deal with these cases?
    Mr. Cole. Senator, anything that can provide more clarity I 
think is always helpful, because the less that is known and the 
less certain you are, the more difficult it is to administer 
some of these laws that we have. All of the facts and 
circumstances are going to be new and fresh in each case, and I 
think anything we can do to provide clarity and provide 
certainty is always helpful.
    Senator Graham. And this is what the judge or judges are 
asking for. I trust their judgment, but we just need some 
uniform rules dealing with these cases that are unique and 
novel and a hybrid system of using the best of the civilian and 
military justice systems.
    So I look forward to working with you on these issues, but 
time is of the essence. The war is ongoing. They are out there 
coming after us right now, and I do not want to confuse the two 
systems to the point that the enemy gets an advantage. There is 
a role, in my view, for an Article III system in the war on 
terror. There is an equally important role for the military 
justice commission. But when you capture these guys, the first 
thing I want to know is: Where did you train? Is something else 
coming? And our legal system now does not give us the 
flexibility to make those good decisions, and quite frankly, we 
have just been lucky that these bombs did not go off. And we 
are going to run out of luck, and I stand ready as a Republican 
to work with the President to change our laws in a way to make 
us safer, live within our value system, and try to find a way 
to close Guantanamo Bay, if we can. And I look forward to 
working with you in those endeavors.
    Mr. Cole. Thank you, Senator. I do as well.
    Senator Whitehouse. Before I call on Senator Kaufman, who 
is next, let me just add my own emphatic underline to Senator 
Graham's offer to work with this administration. In the 3 years 
that I have worked with him, I have come to the strong belief 
that he wants to work on these issues in completely good faith, 
and I know that he is very knowledgeable and expert in this 
area. So add that emphatic underline, and if you would be good 
enough to work with our side of the aisle, too, that would also 
be nice.
    Mr. Cole. I would look forward to working with everybody.
    Senator Whitehouse. Senator Kaufman.
    Senator Kaufman. Thank you, Mr. Chairman. And I also want 
to say before I start, Senator Graham has been so--he has not 
just worked hard, but so articulate and so thoughtful in what 
he is doing. And I just think it is a wonderful thing to see 
when bipartisanship really works, and on this issue, Senator 
Graham has been great.
    And I want to thank you for agreeing to do what you have 
agreed to do. And I want to thank your family because, really, 
the biggest sacrifice here is going to be made by your family, 
because this is not a job where you get to come home every day 
at 5 o'clock. And so I really appreciate what you are doing. 
But I tell you, when you look back on it, it is a great thing 
to look back on. So I want to thank you for what you are doing, 
not just because you are making the sacrifice but because you 
bring so much to the job.
    As you know, as Senator Klobuchar, get the bread-and-butter 
issues. These other issues are important, but clearly most 
Americans are concerned about what we are doing, what Justice 
is doing to make sure that they feel like they are safe and 
secure, not just from international terror but also from 
domestic crime and domestic fraud and those kinds of things.
    So I want to spend some time, as you know, talking about my 
favorite subject, which is what are we going to do to make sure 
the people that were involved in this financial crisis pay the 
price? And as you said, with the reduced resources in many 
areas, the bread-and-butter issues get harder and harder, but 
this is an area where we have funded pretty well. We have got 
$175 million coming just to go after financial fraud, and I 
would like you to spend just a few minutes talking about what 
kind of priority you think that is and kind of your thoughts 
moving forward when you are confirmed for Deputy Attorney 
    Mr. Cole. Thank you, Senator Kaufman. The area of financial 
fraud is something that has impacted every single American. The 
loss of money, the loss of savings, the loss of retirement 
accounts, the loss of faith in our capital markets has been 
devastating. And it is something that we need to make sure that 
people are held accountable for. This is so important, because 
only by making sure that people know that there are 
consequences to having perpetrated this kind of fraud will we 
have a hope of deterring anybody from ever doing it again.
    I harken back to some of the discussion I have had with 
Senator Sessions. One of the main ways to do this is to go 
after the individual executives who are responsible to make 
sure that they have skin in the game, that they are not just 
going to walk away because their corporation takes a plea. It 
is they who would go to jail. It is they who will suffer the 
consequences. And it is they who made millions and millions of 
dollars who will be forced to give that back. That to me is one 
of the keys that could come in in a successful program to deal 
with this.
    Now, from what I see, there has been an increase of 
resources, and it is actually hitting the ground. I have talked 
to old friends in the Fraud Section in the Criminal Division, 
and they have told me they are hiring now, and that has been 
something that has been promised for years and is finally being 
done. And I find that a very, very important first step, 
getting boots on the ground to actually start dealing with this 
issue. There has been a lot of talk about it, but it is finally 
getting done, and I find that very, very encouraging.
    Senator Kaufman. And talk a little bit about coordination. 
You mentioned coordination, that it is so important. Let us 
start with the U.S. Attorneys. Basically we all know there is a 
long history of U.S. Attorneys being protective of their turf. 
This goes back to Republican and Democratic administrations and 
Main Justice. And so you have cases actually being carried on 
in Main Justice, and they could be carried on in the U.S. 
Attorney's Office without true coordination. How do we get the 
U.S. Attorneys and Main Justice--because you are uniquely 
positioned, you and the Attorney General are the only people in 
the Justice Department that all the different sections of the 
Department of Justice report to. So having someone who can make 
sure--can you just talk a little bit--I know your experience 
with these things. Talk a little bit about how we make sure 
that the U.S. Attorneys--for instance, mainly U.S. Attorneys in 
the Criminal Division operate together. They share everything 
they are doing.
    Mr. Cole. When I was in the Justice Department years ago, 
the most successful cases that I saw were those that were 
brought where the Criminal Division and U.S. Attorneys' Offices 
worked together. There is a great deal of expertise that can be 
mined out of the Criminal Division, and there is an enormous 
amount of talent in all the U.S. Attorneys' Offices.
    This is much like everything else we do. We need to use all 
of the tools we have, and we need to make sure that we avoid 
turf battles. We need to avoid any sort of petty infighting. 
Sometimes there are important issues that come up, and they do 
need to be dealt with, and there are valid complaints and valid 
issues about who should have a case. But we are a very large 
organization, and the more that that organization--the more the 
Justice Department can work together, the greater the success.
    Senator Kaufman. And how do you--I mean, kind of 
mechanically, how does it work? I mean, really, the only two 
people that can really enforce that and make sure it works are 
you and the Attorney General. Moving forward, how do you see 
that actually happening?
    Mr. Cole. Well, certainly, looking forward, it would 
involve the Assistant Attorney General for the Criminal 
Division, Mr. Breuer, who is an excellent prosecutor and 
lawyer. He would be interfacing with a lot of the U.S. 
Attorneys on these cases. The individual attorneys in the 
sections who have the expertise, as the U.S. Attorneys' Offices 
get more familiar with them and get to know them and get to see 
what the value-added can be and the resources that are added 
can be, then they start to be comfortable. They start to 
actually work together.
    A few successes is usually the key to make everybody start 
to break through the dam and realize that there is gold to be 
mined from the cooperation.
    Senator Kaufman. And, you know, there are a number of 
reports. The joint savings and loans, one of the key places to 
obtain information to bring cases was the bank regulators. Can 
you talk a little bit about how we get the bank regulators into 
this thing?
    Mr. Cole. There have been a large number of Federal 
agencies that have touched this financial meltdown, and we need 
to really mine what we can from them, because they all have a 
perspective and they all saw a part of it that could be very 
helpful in trying to bring these cases.
    We should make sure that we use whatever sources of 
information that can be found, and the Justice Department--if I 
were confirmed, I would push this--needs to use whatever 
sources of information can be found to get insights into how 
the financial problems occurred, who was responsible for them, 
all leading to an effort to try and bring those people to 
    Senator Kaufman. And, finally, I just want to really thank 
you for what you are doing. I think it sends a clear message. 
This is not about retribution. This is about making sure that 
everyone gets treated fairly. But there are people on Wall 
Street--I spent time up there talking to folks and talking to 
reporters that cover Wall Street--who basically think they got 
through the financial fraud thing absolutely scot free. And 
they believe that they have--because these cases are so complex 
and because they have very, very good attorneys on their side, 
they genuinely believe that they can get away with this. And I 
think it is really important not just for retribution but 
important to where we go down the future that we are working 
    There was a good article in the Washington Post today about 
the people that are bringing the Securities and Exchange 
Commission. I think having you come on and do this job is an 
incredible sign. I think Lanny Breuer, I think the people that 
we are getting are really key so that we do not have another 
meltdown with, as you said, all the damage that was caused by 
that, by people that just think they can do it and without any 
fear of retribution. That is an important part of how our 
system works.
    So, again, thank you very much for what you are doing. It 
is very, very important.
    Mr. Cole. Thank you, Senator.
    Senator Whitehouse. Senator Cardin.
    Senator Kaufman. Thank you, Mr. Chairman.
    Senator Cardin. Thank you, Mr. Chairman.
    Mr. Cole, once again, thank you for your public service. 
Thank you to your family for the sacrifices that they put up. I 
know the sacrifices they put up when you were doing the 
investigation for the House, and we know this is a family 
effort, so we thank you all for your willingness to serve in 
the public.
    Senator Danforth made an observation that I fully agree 
with, and that is, his observation is that you will call it the 
way it is, that you will do what you think is right, and you 
have an ability to avoid the pressures, outside pressures, and 
do what you think your job requires you to do.
    I saw that in the investigation in the House with Speaker 
Gingrich. There were many times that some of us disagreed where 
you were heading, including yours truly, and you were 
persuasive in the way that you handled it to get us back on the 
path to resolve the case as it should have been resolved.
    Do we have your commitment, as Deputy Attorney General, 
that you will continue to call it the way you believe is right 
and that you will not be influenced by partisan politics or 
popular sentiment, and that you will continue carrying out your 
responsibilities the way that you believe is right?
    Mr. Cole. Senator, if I am confirmed, you have that as a 
firm commitment from me.
    Senator Cardin. Thank you. So let me test you on one area, 
which Senator Graham was talking about, which is the closing of 
Guantanamo Bay. It is a tough issue. It is a very tough issue. 
And I am not trying to make it easy to accomplish the goal of 
closing it. But one of the challenges--and I was recently down 
in Guantanamo Bay. It was not my first visit. I have been there 
several times--I have been there twice.
    What do we do about those detainees that we cannot bring to 
trial, there is no place really to send them, and we are going 
to have to detain them for a longer period of time? President 
Obama and Attorney General Holder made a commitment--and 
Senator Graham was part of that--that there would be a process 
in place to review their status so that we could present to the 
international community that we are using due process of law to 
make sure that people who are being detained, there is 
justification for their detention, even though they are not 
being brought to a criminal proceeding and not being released.
    I questioned Attorney General Holder as to when we might 
expect to receive that guidance, and the narrowest I could pin 
him down to would be more than a few days and less than a year. 
I would hope that you would tackle this issue and help us 
resolve it because in the eyes of the international community, 
Guantanamo Bay is an icon of abuse. And part of it is that 
people who may very well be terrorists are still entitled to 
the rule of law. And we need to make sure that is complied with 
in the way that we manage this, not just internally, but to the 
international community.
    So I sort of charge you with your reputation to try to 
bring this to conclusion sooner rather than later.
    Mr. Cole. Certainly it is a matter, if confirmed, that I 
would look into. It is, I think, a very important and high-
priority matter, Senator.
    Senator Cardin. I want to bring up one other issue, and 
that is, this past Friday I was down in the Gulf of Mexico, saw 
firsthand the horrific damage that has been caused by the BP 
oil spill. It is hard to imagine just how vast this problem is. 
We saw oil everywhere. We saw it on Grand Isle, which is a 
beach community, not too different than Ocean City, Maryland, 
where there was nobody there other than people cleaning up the 
beaches. Normally, there would be vacationers. And I cannot 
imagine what would happen if we had to close Ocean City for a 
season. And you take a look at the sensitive islands where 
birds are nesting and see oil all over.
    I guess the point I want to stress is that BP oil needs to 
be held fully accountable for the damages that they have 
caused. In their application for their permit, they said that 
they had proven technology to deal with any type of a spill. 
They did not have proven technology. They are trying to deal 
with this issue on the fly, and it should have been done in 
advance. There should have been ways to contain this oil in the 
event of a spill. That technology should have been onsite. And 
the best technology they have today may contain upwards to 
28,000 barrels if they get fully successful before the relief 
wells are drilled. And yet we know it is now closer to 40,000 
barrels of oil pouring into the gulf.
    I guess my point to you is, if you are confirmed and you 
become Deputy Attorney General, we need to make sure that the 
people of this Nation are protected. There should be no 
Government bailout for the damages caused by BP oil. But we 
have to have aggressive law enforcement. The Department of 
Justice needs to be there and devote a significant amount of 
resources to help those small business owners, to help those 
property owners, to help the taxpayers, and to protect our 
environment for future generations, assessing accurately the 
amount of damage caused to our environment and holding BP 
    Will this be the highest priority within the Department of 
Justice under your portfolio if you are confirmed?
    Mr. Cole. Senator, my understanding is it already is a 
very, very high priority in the Department of Justice. The 
devastation that has been visited upon the gulf is important to 
the President. It is important to the Attorney General. It is 
very important to the people who live down there, and that 
every effort, as I understand it, is being made to address all 
the issues that you have just outlined as very, very important 
prerogatives of this Government.
    Senator Cardin. Well, once again, Mr. Cole, let me thank 
you for being willing to serve the public. You have a very, 
very distinguished career, and your experience is what we need, 
and I wish you well.
    Thank you, Mr. Chairman.
    Mr. Cole. Thank you, Senator.
    Senator Whitehouse. Mr. Cole, like many of the graduates of 
the Department of Justice, I watched with real horror and 
dismay as the events in the Department of Justice under the 
Gonzales Attorney Generalship unfolded. One of the most 
horrifying was what happened at the Office of Legal Counsel. It 
is almost unimaginable to somebody of my vintage in the 
Department of Justice that the Office of Legal Counsel would be 
the subject of an Office of Professional Responsibility 
investigation. But that happened, and we have to deal with 
    The Office of Professional Responsibility investigation 
went forward, and it, too, ran into its own problems, and David 
Margolis reviewed the OPR investigation and had a variety of 
critical comments about that.
    I have my own concerns about Assistant Deputy Attorney 
General Margolis' review, and I would like to have the 
Department clear this up once and for all and put this episode 
behind it.
    The concern that I have about David Margolis' review is 
that I think he sets the standard for OLC attorneys far too low 
in his opinion, and I think his opinion under Department 
protocol becomes precedent. So I would like to ask you when you 
are confirmed, assuming you are confirmed--I expect you will be 
confirmed--to review that determination and make a departmental 
determination as to what the standard should be for lawyers at 
the Office of Legal Counsel.
    Where it stands right now is that a regular day-to-day 
lawyer with the files under his arm and the rumpled suit, going 
to the court to bang out his cases every day, is held, when he 
makes representations about what the law is to the court, to a 
higher standard than the Office of Legal Counsel is held to 
when they give advice to the President of the United States. 
And I think that is wrong. I think that when a lawyer is before 
a court, the standard that they are held to has a couple of 
safeguards. One is the judge is going to do their own 
independent research, and so there is a good likelihood that 
any error or effort to mislead by the lawyer will be found. 
And, second, he has his distinguished opposing counsel, if you 
do not mind if I put you in the role of opposing counsel here 
for a moment, to explain to the court why that lawyer's 
argument is wrong and why he has overlooked certain cases.
    OLC does not have those checks and balances. OLC's opinions 
are often secret. The President may not even be a lawyer. For 
all those reasons, I think that the standard for the Office of 
Legal Counsel, which, as you and I recall, was the gold 
standard--these were people who went on to be Supreme Court 
judges. These were people who were the top of the profession in 
the United States. The idea that they are held to a lower 
standard than the regular work-a-day lawyer who is slugging it 
out with 12 cases under his arm and paper files in the superior 
court every day to me just seems dead wrong.
    So, please, if you would review that when you get there. I 
think there should be a formal departmental determination made 
as to what the standard is rather than just the Margolis 
opinion lasting as precedent. Will you do that?
    Mr. Cole. Certainly it is a matter that I would be, if 
confirmed, happy to look into, Senator.
    Senator Whitehouse. The second issue that I want to ask you 
about is cyber. We talked a little bit about it, as you 
indicated, when we met. I have a very persistent and serious 
concern that the American public knows far too little about the 
damage that the United States of America is sustaining now, 
yesterday, tomorrow, through cyber attacks, both from 
infiltration into our computers in ways that allow later 
harmful actions to be triggered; from traditional crime, banks 
being robbed in ways that would make, you know, Bonnie and 
Clyde look like pikers; and probably the most significant 
industrial espionage piracy in the history of the world, the 
biggest transfer of wealth I think ever is happening right now, 
and we are on the losing end of it. And it is all more or less 
invisible to the public because if you are in dot.mil and 
dot.gov, it is classified so deeply that nobody hears about it; 
and if you are in dot.com, dot.org, or dot.net and you are a 
corporation, you have a proprietary interest in not letting 
that information get out. The banks do not disclose that they 
got hit for tens of millions of dollars because they do not 
want their competitors to know, they do not want their 
customers to know. The net result of all of that is that the 
public does not know.
    So I would ask you to review with the Attorney General 
where our classification policy is on this so that we can make 
a decision about how much to disclose to the American people 
about what is actually happening to our country so that they 
can be engaged in a proper way in the legislative and public 
acts that need to follow. I think that we are way to the side 
of secrecy to the point where the secrecy is actually damaging 
our national security now rather than protecting it. Will you 
look at that?
    Mr. Cole. Certainly, Senator. I think those are important 
issues and important balancings that need to be done, and 
certainly the right balance and the right position needs to be 
found between both the secrecy that is required and the import 
of getting out those messages to the public.
    Senator Whitehouse. You do not necessarily have to give up 
the name of the bank for the public to know that X gazillion 
dollars were stolen from an American bank by cyber criminals in 
this period. And that is the kind of information I think people 
need to know.
    You mentioned earlier that lawyers, prosecutors, like as 
few surprises as possible, and as somebody who has had the 
privilege of preparing Federal cases and walking through that 
analysis, we do try to analyze very carefully how the case is 
going to go down its path and eliminate as many surprises as 
    In that context, do you have views on the military 
tribunals--and I mean the new ones that have been cleaned up of 
their previous unconstitutional problems, but still do not have 
as much settled jurisprudence about the conduct of the tribunal 
and the rules that govern it as an Article III court has from 
tens of thousands, hundreds of thousands of criminal trials and 
the precedent that has developed in those over the years.
    As a trial lawyer preparing a case and making the decision 
whether you are going to a military tribunal or to an Article 
III traditional criminal court, would that factor of the 
unsettledness of the law in one area versus the settledness of 
the law in the other weigh as a factor in that calculation? And 
should it?
    Mr. Cole. Senator, I think it should weigh as a factor, and 
it is, in fact, one of the factors that Assistant Attorney 
General Kris had mentioned in his speech. But it is not the 
only factor, and there are any number of factors that will go 
into on any individual case the decision of where to bring it, 
either in Article III or a military commission.
    But certainly the issues that will be coming up and the 
issues that will be presented, some of them may be more 
settled. Some of them may not. But certainly the state of the 
law and the state of the law in any given forum is certainly 
one of the factors that should be looked at in making that 
    Senator Whitehouse. My time has concluded. I think we are 
going to go into a second round. I would like to follow up on 
some of the discussions that we have had, and I know Senator 
Sessions has further questions. So, without further ado, 
Senator Sessions.
    Senator Sessions. Thank you. Mr. Chairman, with regard to 
Dave Margolis, he was in the Department of Justice when I came 
as an assistant--when I was a young assistant. He had been 
there a long time, it seemed then, and he loves the 
    Senator Whitehouse. By the time I got there, he was there a 
really long time.
    Senator Sessions [continuing]. Is a leader in this 
Department. He was always known as an independent guy. He had 
long hair and he wore jeans around, but everybody knew of and 
over the years came to respect so greatly his integrity.
    I would submit for the record, in light of your comments, a 
list of a host of former Department of Justice high officials 
who wrote a letter defending him and his decisionmaking process 
and his integrity just for the record.
    Senator Whitehouse. Without objection.
    [The information referred to appears as a submission for 
the record.]
    Senator Sessions. I do not think you were attacking his 
integrity in any way, but----
    Senator Whitehouse. No. Just disagreeing with the 
conclusions he came to.
    Senator Sessions. Well, I do not disagree with it, and it 
was a decision that the Office of Legal Counsel made after a 
great deal of research and effort, and it sought to give what 
the President said he wanted, which was maximum--what is the 
limits of my executive power. People have disagreed with how 
far that memo went, but I think it had a basis.
    I would say that Mr. Cole's op-ed, when he basically said 
that military commissions are inconsistent with our spirit and 
our Constitution, was in error. If he had done that as OLC, he 
might have been subject to the same kind of second-guessing.
    I want to get this straight. I know we are in a political 
world and everybody has got different views about how we ought 
to handle matters as a matter of policy, but there is a choice 
between taking someone and treating them as a criminal who has 
been arrested and an enemy who has been captured. You capture 
enemies. You arrest criminals.
    We have authorized a military force against al Qaeda, and 
it is clear to me that anyone associated with al Qaeda that is 
captured can be treated as a prisoner of war. And we did not 
provide prisoners of war lawyers or speedy trials. They are 
just held until the war is over. Every nation in the world does 
that. That is consistent with our understanding of war.
    So when you apprehend somebody who came right out of Yemen 
with a bomb on his person, coming from an al Qaeda group, 
determined to murder American citizens, that is not a normal 
criminal. That is an enemy that has been captured. It seems to 
me that it just makes common sense that the presumption would 
be that that individual would be held as a combatant, an enemy 
combatant. If they acted unlawfully, which he did in that case, 
he could be tried by a military commission. But if you wanted 
to talk to the individual about intelligence or other things, 
he could be held as a prisoner of war and not provided a trial 
by a military commission for as long as the war exists. Once 
the war is over, they would be released, if not tried.
    It also seems to me to be clear that once a person is in 
military custody, they can be transferred to civilian custody 
and tried in Federal court. But if you treat them as a civilian 
from the time of the arrest, they have to be told they have a 
right to remain silent, even though there might be some public 
safety exception, which is very vague, maybe 50 minutes of 
questioning of what I have seen so far, that he has a right to 
a lawyer who will immediately tell him not to cooperate and not 
to talk. He would be entitled to a speedy trial, at least 
except for the exceptions that occur, and discovery of the 
Government's case. Then you have to have a trial in a public 
courtroom somewhere with jurors and security and guards on 
buildings, which led, I believe, the mayor of Alexandria to 
say, ``[n]o more. I do not want another one of those.'' You 
cited the Moussaoui case, the 19th hijacker. That took 4\1/2\ 
years and was pretty much a circus. He had to be removed from 
the courtroom three or four times.
    In a military commission they can be held as a prisoner of 
war. They can be given a lawyer and set for trial. They will 
not be tried without a lawyer. They can be sent to civilian 
court if that is the choice and that happens.
    So the problem is that the Attorney General's commission 
has said that all the prisoners at Guantanamo--I think there 
are 170 or so now left. The presumption is that they will all 
be tried in civilian courts, and that presumption seems to be 
carrying over as to when people are arrested, as the Christmas 
Day bomber. And that is putting us in the Miranda situation 
that has to be done, in my view.
    So I guess my question is: Will you evaluate that? Is it 
still the Department of Justice policy that everybody at 
Guantanamo is presumed to be tried in the civilian courts even 
though they may have been captured on the battlefield in the 
Middle East?
    Mr. Cole. Senator, at least as I understand the protocols 
that were developed for the review of the Guantanamo 
detainees--and that review has largely been completed--had that 
presumption, but it was not determinative, as I think has been 
stressed time and time again, at least from the readings I have 
done. It is a decision that is made based on a myriad of 
factors, perhaps hundreds of factors. Each different fact 
involved in the case, each different legal issue is going to be 
evaluated and a determination of what is the most effective 
place to try any of these people who are determined to be 
    Senator Sessions. Well, the Attorney General has said that, 
and I can accept that to a degree, except that the people being 
held in Guantanamo are held as military combatants, as 
prisoners of war, initially at least, and still are, and they 
can be, as you said, transferred to civilian court.
    Why wouldn't we treat everybody we capture, at least 
initially, as a prisoner of war, as a combatant that meets the 
evidence of that? Why wouldn't we treat them like that and then 
make our decision later as to whether to move them in Federal 
court, thereby eliminating a lot of the immediate problems that 
will arise instantly if you treat them as a civilian criminal?
    Mr. Cole. Senator, you pose an important question. I think 
there is, I would imagine, a great deal of thinking and 
background that has been gone through within the Department of 
Justice that I am not privy to that certainly has led to some 
of these conclusions. I think the nature of what kinds of law 
enforcement forces we have within the United States that could 
operate and arrest the various people who are captured is part 
of it. I think the determination in the first instance upon 
arrest of whether or not somebody is part of al Qaeda or the 
Taliban or associated with them may not be a very clear 
determination that can be made right away, and there are issues 
that will come into play there as to whether they are, in fact, 
qualified to be treated as enemy combatants.
    I think it is, from my own imagination, an incredibly 
difficult and important issue that you raise, and I would have 
to imagine that there has been a lot of background and thinking 
already done in the Department on it.
    Senator Sessions. Thank you. I do not know that. Maybe 
there is. To me that would be maybe something we could all 
reach an agreement on how to treat a person initially arrested, 
and if they meet the standards of an enemy, I think we would be 
better off without any doubt--I do not think it is a close 
question. Without any doubt, we would be better treating them 
under the military commissions until we decide otherwise.
    Senator Whitehouse. A vote went off 6 or 7 minutes ago, so 
we will have to bring this hearing to a conclusion. The record 
will remain open for an additional week, I believe, and I will 
follow up on the questions that I had in the form of written 
questions for the record.
    One thing I would like to mention in closing, though, is 
that there has been a certain amount of discussion about what 
took place down in the gulf, out at the Deepwater Horizon and 
this geyser of oil that is spouting into the gulf right now. 
And one thing that strikes me is that--are you familiar with 
the doctrine of regulatory capture?
    Mr. Cole. I have heard it. I am not intimately familiar 
with it, Senator Whitehouse.
    Senator Whitehouse. The MMS was the subject of what would 
be described as ``regulatory capture.'' There was quite a good 
reference to that in the Wall Street Journal the other day on 
the op-ed page by a senior fellow of the Cato Institute. We do 
not often agree, but we do agree on this.
    I think there is a role for the Department of Justice in 
protecting the Government of the United States against 
regulatory capture, against protecting components of the 
Government of the United States from becoming the tools or the 
servants or the puppets of the industry that they are supposed 
to be regulating. So I would ask you to think--you have spent 
time in the private sector; you have spent time at the 
Department--in your role as Deputy Attorney General about how 
the Attorney General might best perform a role of assuring the 
American people that the Department of Justice can and will 
protect the public--and, frankly, the integrity of Government--
when in some far off precinct of the Government, this 
phenomenon of regulatory capture has been allowed to occur. And 
I would appreciate it if you would give that some thought, and 
we can talk about it later. But I know we have to rush to the 
vote, so thank you very much, and thanks to your family----
    Senator Sessions. Could I add one thing? Senator Grassley 
had some questions about your actions as monitor of AIG during 
the time that led up and including the time that they 
collapsed, and I did, too. I noticed that Whistle Blogger, 
Corporate Counsel, Wall Street Journal has been somewhat 
critical or questioning of how you conducted that, being the 
Federal Government person sitting in the middle of that 
company, supposedly monitoring it, when all these things 
occurred. So I guess the time is such we cannot ask that today. 
I appreciated the opportunity to talk with you about it 
yesterday a little bit. But we will submit written questions, 
Mr. Chairman. Thank you.
    [The questions appear as a submission for the record.]
    Senator Sessions. Thank you.
    Senator Whitehouse. I thank the Ranking Member, and the 
hearing is adjourned.
    [Whereupon, at 11:58 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record