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Hearing of the Senate Committee on the Judiciary - Nomination of Michael Mukasey to be Attorney General of the United States

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Location: Washington, DC


Hearing of the Senate Committee on the Judiciary - Nomination of Michael Mukasey to be Attorney General of the United States

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SEN. HERB KOHL (D-WI): Thank you, Mr. Chairman.

Judge Mukasey, when Attorney General Gonzales was nominated, many of us expressed serious reservations about his lack of independence from the White House. And the record shows that we were right to be concerned. For example, the White House and politics generally were very involved in ongoing prosecutions and charging decisions at the Justice Department. And politics infringed on personnel decisions, most notably in the case of U.S. attorneys but also regularly in the hiring of career employees. Also, the vice president's office seemed to control much of the legal advice that the Justice Department produced. We expect you to vow to us this morning that you will be independent of the White House, and that politically driven decision- making will be eliminated if you are confirmed. But we're hoping that you can say more than that.

You've had some time since your nomination to think about these problems and determine a course of action to address them. So how will you ensure that politics plays no role and that there's no appearance that politics plays a role in cases brought by the Justice Department?

MR. MUKASEY: The question you asked, of course, is enormously important because it goes to whether our citizens and everybody here can have confidence in the administration of justice in this country. And what I have said in meetings with people in the past and what I've said, and what I'm going to reiterate if I'm confirmed, is that any attempt to interfere with a case is not to be countenanced.

Any call to a line assistant or to a United States attorney from a political person relating to a case is to be cut and curtailed. And that person, that caller, is to be referred to the few, the very few people at the Justice Department who can take calls from elected officials.

Regardless of that, hiring is going to be based solely on competence and ability and dedication and not based on whether somebody's got an R or a D next to their name. I served in the department in the U.S. attorney's office in the southern district of New York 35 years ago. I was never asked what my politics were. I didn't know the politics of many of the people there, and still don't, and it didn't matter. It had nothing to do with our job, nothing to do with the way we did it. And it can't have anything to do with the jobs of the people in the Justice Department today. That's the standard I'm going to make very clear, very precise, and I'm going to enforce.

SEN. KOHL: Other than saying you won't hire or fire a U.S. attorney solely for political reasons, what can you do to ensure that this practice does end immediately?

MR. MUKASEY: I don't know now of any ongoing dispute involving the dismissal of a United States attorney for any such reason. But if there is any such, I'm going to get in the middle of it very fast and stop it. I'll do everything I can to stop it.

SEN. KOHL: What can you say to assure us that the legal opinions produced by your Justice Department will be based on the best interpretation of law and not on the White House or the vice president's interpretation of the law?

MR. MUKASEY: I'm going to review the significant decisions of the Office of Legal Counsel, particularly those relating to national security, although not exclusively, so as to make certain that they are sound, soundly reasoned, soundly based. We've already had the experience of one of those opinions having to be withdrawn, and I want to make certain that the others that are in place are sound, and change them if they're not.

I think we need to do that, not only so that everybody can have confidence in the administration of justice, but also so that the people who are out in the field, people who work for agencies, people who may be engaging in interrogation, have confidence that they are acting on the basis of the law and that they're not going to have the rug pulled out from under them at a later time because it's found that somebody had gone too far in giving them authorization.

It's important that they be able to do their work, and we're going to expect them to do their work. We want them to get the information that we need, but we can't expect them to put their careers and their freedom on the line if they don't have confidence that the authorizations that are being given to them are sound.

SEN. KOHL: Justice Department senior positions, as you know, are filled with acting positions who the president has not nominated and the Senate has not confirmed. Do you think this is a problem for the effective management of the department and the enforcement of our laws? And, if so, what do you intend to do to change it?

MR. MUKASEY: Of course it's a problem. You can't -- matters can't move forward unless necessary authorizations are given. And if the offices of people who would give those authorizations and move those matters forward are vacant, then things stagnate. And not only does justice not get done, but morale deteriorates.

I will try to attract people, and I think I can attract people, who understand the importance of doing the jobs that are unfilled and get people to do them just as quickly as I can. It's not something, obviously, that I could do or can do before confirmation. I think it would have been regarded as something of an act of presumption for me to start looking at people and talking to people and interviewing people and so forth. But I have thought about it, and it's obviously a top priority.

SEN. KOHL: Justice Mukasey, for decades this country has been admired around the world for its unwavering commitment to human rights and the rule of law. There's a growing consensus that the detention center at Guantanamo Bay is causing great harm to our reputation around the world.

Former Secretary of State Colin Powell said, and I quote, "If it was up to me, I'd close Guantanamo, not tomorrow but today." Last year even the president himself recognized that Guantanamo has been a focus of international criticism, and he said, quote, "I would like to close Guantanamo."

Do you think that we need to close Guantanamo Bay prison? And, if so, will you recommend that to the president?

MR. MUKASEY: I think there are substantial problems with Guantanamo, both problems of reality and problems of perception. As to reality, it's my understanding that although people are humanely treated at Guantanamo, it's more than a matter of humane treatment; it's a matter of the fact that we're detaining people apparently without end and that it's given us a black eye. And I understand the practicalities that the president has to deal with, beyond the question of whether people are or are not being humanely treated.

I think a substantial reason for the problem we've had with Guantanamo is that, to use a bureaucratic expression, nobody owns it. The Defense Department runs it. There's obviously an overlay of Justice Department involvement insofar as we're talking about hearings are not for detainees. The National Intelligence Director obviously has an interest in what happens to the people there because they very well have or have had information that we need in order to combat terrorism. So it's out there in a kind of no man's land of jurisdiction, and control has to be taken.

SEN. KOHL: Are you prepared to recommend to the president that we close Guantanamo?

MR. MUKASEY: I'm prepared to recommend to the president that we take the responsible course in dealing with the people at Guantanamo. I can't simply say we have to close Guantanamo, because obviously the question then arises what we do with the people who are there. And there is now no easy solution to that.

SEN. KOHL: Well, you've had time to think about this. It's been on the table since the day you were nominated, and for a long time before that. What are you prepared to do with Guantanamo? Are you prepared to close it? Are you prepared to take the steps that are necessary to close it, which you've indicated needs to be done? But are you prepared to say to the president, "We need to close Guantanamo as soon as we can; we have several things that need to be done so that we can close Guantanamo, but the prison needs to be closed"?

MR. MUKASEY: I think I'm prepared to say that we need to get the best advice and the best ideas that we can and act responsibly, with the goal of closing it down because it's hurting us. That I'm prepared to say. And I think, as regards this president, I think I would be preaching to the converted. I think he understands that. I think he has said that he understands that Guantanamo has hurt us.

SEN. KOHL: Is that high on your list of priorities?

MR. MUKASEY: Yes, it is, along with -- yes, along with filling vacancies, it is.

SEN. KOHL: So we can expect that in the event that you're confirmed, soon thereafter we'll be hearing about Guantanamo and the things that you believe need to be done to close it as soon as possible?

MR. MUKASEY: I think we can expect that I will try to get the best people I can to give the best advice that they can, and then I will be making that known to the president. That's what I'm going to do.

SEN. KOHL: Do you believe that Congress has the constitutional authority to prohibit torture?

MR. MUKASEY: Yes, I do, and it has.

SEN. KOHL: Thank you. Judge Mukasey, in today's Washington Post there is an article describing how, since September 11th, 2001, the Justice Department has redirected its efforts away from fighting violent crime. Referring to the alarming recent increases in violent street crime, the article quotes a speech this week from FBI Director Mueller in which he states, quote, "We are realizing that national security is as much about reducing the number of homicides in our streets as it is about reducing the threat of terrorism," unquote.

Do you agree with Director Mueller and the statements he made? And if so, what steps will your Justice Department take to reduce the now growing threat of violence across our country?

MR. MUKASEY: I do. And I think we need to look at both resource allocation and at the resources we have. It's my understanding that the terrorism effort insofar as it took place within the Justice Department -- apart from the FBI -- just the Justice Department, excluding the FBI for a moment -- that that effort was undertaken by people who were taken from the criminal division and put into antiterrorism efforts and that there may have been programs, including anti-gang programs, that may have suffered as a result. And that's something that can't be tolerated, because we can't turn our society into something that's not worth preserving in order to preserve it. That's not a formula for success.

I think we need to figure out staffing. I think we need to get the budget where it ought to be. And obviously, if I'm confirmed I'm going to be here -- not like a mendicant, but I will be here with, I hope, an intelligent program for putting it on track and for implementing, in particular, anti-gang efforts. I come from a jurisdiction where violent gangs reduced virtually an entire borough to a war zone and related parts of another borough. I know what gangs can do to a city. I saw it. There's a violent gangs unit in the U.S. attorneys office in my district focused specifically on that. So I understand the importance of that. And it's also corrosive, because the people attracted to violent gangs, obviously, are young people and that's supposed to be our future.

SEN. KOHL: As you know, Judge Mukasey, violent crime -- to which we were referring to just a minute ago -- rose again last year. Many of us are concerned that the way in which your predecessor addressed this important issue was not good enough. In each year of his tenure, he proposed drastic reductions to important state and local law enforcement funding programs. One program this administration has continually tried to eliminate is the very successful and cost effective COPS universal hiring program. As funding for more police officers on our streets decreased or ended, not coincidentally, violent crime has rose significantly across our country.

Would you agree that we need a renewed commitment to this COPS program to counter the surge in violent crime across our country?

MR. MUKASEY: I think the COPS program has been very successful and I think we ought to keep it in place. That said, as I understand the COPS program, the mechanism that was supposed to be put in place was that there would be an initial funding for hiring and then states and localities, which saw a good effect from the additional hiring -- hopefully had an effect of reducing crime -- would themselves begin to fund their police departments and state police offices locally and statewide. But the COPS program was not supposed to be an ongoing funding program for police departments and I support that. I think programs that teach by example and then permit localities to follow that example are the best use of federal resources.

SEN. KOHL: So you're not --

MR. MUKASEY: I would encourage it.

SEN. KOHL: So you're not about to say that you do support continuing funding for the COPS program.

MR. MUKASEY: I think we ought to fund it in such a way that it encourages states and localities to continue the initiative and keep the momentum going. I think the point was to start momentum and keep it going with state and local funds. And that's a principle that I support.

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