Hearing of the Senate Judiciary Committee, Panel III - Nomination of Michael Mukasey to be Attourney General of the United States

Interview

Hearing of the Senate Judiciary Committee, Panel III - Nomination of Michael Mukasey to be Attourney General of the United States

SEN. CARDIN: The Judiciary Committee will come back to order on the confirmation hearings of Judge Mukasey for attorney general of the United States.

I want to welcome the panel of outside experts. We thank you very much for your cooperation in being here today. It's very important that the record in regards to the confirmation of an attorney generation -- that there be opportunity for witnesses that know the nominee or could add to the consideration of the committee have an opportunity to give that testimony. And we thank you all for agreeing to be here today and to be witnesses at this hearing.

As is the tradition of the Judiciary Committee, I'm going to ask you all to rise in order to take an oath.

(The acting chairman administers the oath to the witnesses.)

Thank you. We will start with Mr. Thornburgh. Mr. Thornburgh has served as governor of Pennsylvania, attorney general of the United States for two presidents and was the highest-ranking American at the United Nations.

Elected governor of Pennsylvania in 1978 and reelected in 1982, Governor Thornburgh was the first Republican ever to serve two consecutive terms in that office.

Governor Thornburgh served three years as attorney general of the United States in the Cabinets of President Ronald Reagan and George H.W. Bush.

During his service as undersecretary-general at the United Nations, Governor Thornburgh was in charge of personnel, budget and finance matters. He also served as a consultant to the United Nations and the World Bank on efforts to battle fraud and corruption.

Governor Thornburgh received his bachelor's degree from Yale University and his law degree from the University of Pittsburgh, where I graduated from undergraduate school.

Governor Thornburgh, it's a pleasure to have you here.

MR. THORNBURGH: Thank you, Senator Cardin. It is an honor to appear before the committee today and offer my views on the Department of Justice at this important juncture in its history, to tell you why I support President Bush's nomination of Michael Mukasey to be the 81st attorney general of the United States.

The current situation at the Justice Department in some ways similar to one that I encountered when I became the 76th attorney general in August 1988. Two senior Justice Department officials, the deputy attorney general, Arnold Burns, and the assistant attorney general in charge of the Criminal Division, William Weld, had resigned their positions earlier that year because of their concerns about the ability of my friend and then-Attorney General Ed Meese to lead the department while he was under investigation by an independent counsel. These resignations reflected some degree of turmoil within the department. Although the independent counsel did not seek to prosecute Attorney General Meese, his report, which was issued in July 1988, was sufficiently critical that Ed Meese chose to resign from office early in August 1988.

After confirmation, I was sworn into office shortly thereafter. I considered it to be a unique honor and privilege to return to the Department of Justice, a great institution that I loved and still love. I had previously served as the United States attorney for the Western District of Pennsylvania and the assistant attorney general in charge of the Criminal Division under President Ford during the immediate post-Watergate era. Those experiences heightened the most profound respect I held for the department, for its critically important and unique role in our federal government, and for the legal abilities, professionalism and integrity of the career civil servants who carry out its vital missions.

Early in my service as attorney general, I established a major priority: the restoring of morale within the Department of Justice in the wake of the recent turmoil at its very top ranks. With the indispensable assistance of that distinguished cadre of career employees to whom I referred, I believe that we were able to do so and to lead the department in the successful execution of its law enforcement functions and its vitally important role in the administration of justice.

Today the Department of Justice is enduring another unfortunate period of turmoil at the top. There is no confirmed attorney general, no confirmed deputy attorney general and no confirmed associate attorney general. There are no less than six vacancies among the assistant attorneys general and more than 20 vacancies among the United States attorneys. Although I strongly commend the job that acting Attorney General Peter Keisler and the solicitor general, Paul Clement, are doing under difficult circumstances, the department simply cannot function at the very highest level of efficiency and effectiveness with so many major vacancies in its top leadership corps.

Let me comment in particular on the importance of the Justice Department's enforcement of our nation's criminal laws. The prosecutorial function is the unique responsibility of the Department of Justice within our federal government.

Although I am not passing judgment on the recent controversy over the dismissal of certain United States attorneys, I will say that it is absolutely essential that the unique prosecutorial function of the Department of Justice be carried out in a strictly nonpartisan, unquestionably fair and even-handed manner both in fact and in appearance. In other words, federal prosecutors must follow the evidence where it leads without fear or favor. Nothing could be more important. The Department of Justice simply must retain its unique degree of independence because the department alone, among the agencies of the federal government, has the power of criminal prosecution.

You will hear from a distinguished former United States attorney, Mary Jo White, and an equally distinguished former district court colleague of Judge Mukasey, Judge John Martin, to testify about their personal qualifications of Judge Mukasey to be our attorney general. While I have only recently met Judge Mukasey, I, like many others, admire his record. He spent four years as a career federal prosecutor in a very important U.S. attorney's office, that in the Southern District of New York. It is a testament to his record of accomplishment in that role as President Ronald Reagan nominated and by and with the advice and consent of this body appointed Michael Mukasey to be a judge of the United States district court for that same district.

In his 18 years on the federal bench, Judge Mukasey served with distinction, earning in particular a well-deserved reputation for the manner in which he conducted the proceedings of his trial court in major cases of importance to the national security of the United States. Just as the role of federal prosecutor is a unique, independent and nonpartisan one, so the job of the United States district judge is one that must be conducted in exactly the same manner. Judge Mukasey has a strong reputation for having done precisely that.

At this critically important time for the Department of Justice, in Judge Mukasey the salient qualities of the person and the critical needs of the moment are well matched. There is no question in my mind that Michael Mukasey is the right person at this time to fill the supremely important, singularly unique role of chief law enforcement officer of the United States.

In closing, let me recall one of the most moving and memorable experiences of my service as attorney general. It was in 1989 when it was my privilege to lead the Department of Justice during the celebration of the 200th anniversary of the creation of the Office of the Attorney General of the United States. Nearly all of the living attorney generals, stretching all the way back to President Eisenhower's first attorney general, Herbert Brownell, returned to the Department of Justice for an historic commemoration of that milestone. We were also honored to have Ethel Kennedy, the widow of the 64th attorney general, Robert F. Kennedy, in whose honor the main Justice Department building is now appropriately named. The group included distinguished attorney generals appointed by presidents of both parties, including such giants as William Rogers, Nicholas Katzenbach, Elliot Richardson, Edward Levi and Griffin Bell.

I am confident that when Michael Mukasey takes office as our nation's 81st attorney general, the Department of Justice can and will embark on a time of healing, renewal and exemplary leadership.

I am equally confident that ultimately, when he leaves office, Judge Mukasey will have earned his own place among the top ranks of our nation's finest attorney generals.

Let me add before I close that I would like to associate myself with the views that Senator Specter expressed this morning in The Wall Street Journal, calling for Judge Mukasey, if confirmed, to end the Department of Justice's assault on the attorney-client privilege in corporate investigations, which began in the Clinton administration and has been carried forward in this administration. A broad coalition, which reaches from the Chamber of Commerce and the National Association of Manufacturers on the one end, to the American Bar Association and the American Civil Liberties Union, supports action to restore and reinvigorate this historic privilege, and I hope that Judge Mukasey sees fit to give it his attention.

Thank you, Mr. Chairman. I would be pleased to answer any questions that you may have for me.

SEN. CARDIN: Thank you very much for your testimony.

We'll now hear from Mr. Chuck Canterbury. President Canterbury joined the Fraternal Order of Police in 1984, when he, along with 11 other officers, chartered the local lodge. He served as the local lodge president for 13 years, during which time he was instrumental in starting the Lodge Legal Defense Plan, purchasing the first lodge building and starting the lodge insurance program.

He began his service on the Grand Lodge Executive Board in 1995, when he was elected to the first of three terms as second vice president. During this time, he has worked to expand the police labor movement in areas of our country which do not have collective bargaining rights.

President Canterbury retired in January 2004 from the Horry County Police Department in Conway, South Carolina, where he most recently had oversight of the Operations Bureau. During his 25-year career as a police officer, he worked in the Patrol Division, the Criminal Investigation Division and served as the Training Division supervisor, during which he was certified as an instructor in basic law enforcement, firearms, chemical weapons and pursuit driving. He earned his Bachelor of Arts Degree from Coastal Carolina University.

It's a pleasure to have you here, Mr. Canterbury.

MR. CANTERBURY: Thank you, Senator.

First of all, I would like to thank the Judiciary Committee for allowing the Fraternal Order of Police, the largest police labor organization in the country, to have input on such an esteemed position which has much responsibility in the areas that I've spent my entire career. As the nation's top law enforcement officer, we feel it's important, as the nation's largest law enforcement organization, to be allowed this input, and we're very pleased. And I'd like to personally thank Senator Leahy for the invitation. As many of you know, we consider Senator Leahy to be a stalwart for law enforcement and the rank-and-file officers in this country, and we're very appreciative of his support and his request for us to be here today.

In the matter of Judge Mukasey, he has a long and distinguished career in public service, which began with him becoming an assistant United States attorney in the Southern District of New York. In 1987, he was nominated for the federal bench in that same district and was unanimously confirmed by the Senate.

And he has spent the last 20 years as a federal judge, including his last 6 as chief justice in one of the toughest busiest and prominent of our nation's federal courts.

And during this tenure, he oversaw some of the most important and complicated national security cases, including the successful prosecution of Omar Abdel-Rahman, the Blind Sheikh, who plotted to destroy the World Trade Center in 1993. His handling of this case earned him widespread acclaim and respect from his peers and the nation's law enforcement community. In fact, the U.S. Court of Appeals for the Second Circuit specifically praised him, noting he demonstrated, quote, "extraordinary skill and patience during that case, and superbly handled challenges far beyond those normally endured by a trial judge."

Judge Mukasey has issued the first ruling in the legal challenge brought by Jose Padilla, and it was a very thoughtful and well- reasoned decision. He ruled that the president does in fact have the legal authority to detain as enemy combatants citizens captured during a time of war. But yet he also ruled that those citizens should have monitored access to an attorney.

His deft handling of the issues in the Rahman and Padilla cases and the challenges he faced as the presiding judges in these cases prompted him to write an article, in The Wall Street Journal, which argues that current statutes and institutions which compromise the U.S. legal system are ill-suited to handle the prosecution of terror suspects without compromising homeland security or foreign intelligence sources.

Clearly in this decision, he has given a great deal of consideration to the challenges faced by our legal system and our law enforcement community when it comes towards threats from terrorists. In the opinion of the Fraternal Order of Police, this strongly recommends Judge Mukasey for the position of U.S. attorney general, as well as having him there when we're facing the challenges that we are currently on the war on terrorism.

The FOP has had the honor of representing rank-and-file law enforcement officers in many localities in states, and we are the bargaining unit for over 300,000 officers in this country. And for this reason, our interest in the cases that Judge Mukasey has been involved in over his career have not been limited to just his high- profile cases related to national security.

We are extremely satisfied with his record on the matters in criminal law that involve most of our membership and the labor organizations that we represent. We are also keenly interested in those cases which he has had the main rulings in which touch the rights of employees, particularly public employees. And we are pleased to report to this committee that he demonstrated just as much skill and even-handedness in those cases that we were able to examine as he did in the cases that generated nightly headlines.

His distinguished career has earned him the respect of the law enforcement community, and we are very much in favor of his appointment and his confirmation by the United States Senate.

And we will be glad to answer any questions for you, Mr. Chairman, or any member of the committee.

SEN. CARDIN: Mr. Canterbury, thank you very much for your testimony.

We'll now hear from Admiral John Hutson. Admiral Hutson attended Michigan State University, where he received his B.A., and upon graduation he was commissioned in the United States Navy. He then went on to graduate from the University of Minnesota Law School in 1972. In 1973 he was assigned to the Law Center at Corpus Christi, Texas, where he served as chief defense counsel and chief trial counsel. In 1980, Admiral Hutson attended Georgetown University Law Center, where he earned a Master's of Law degree in labor law.

He was then assigned as legislative counsel in the first of three tours in the Office of Legislative Affairs for the Navy. Admiral Hutson assumed duty as executive officer of the Naval Legal Services Office in Newport, Rhode Island, in 1987. In 1989 he returned to Washington, D.C., to serve as the staff judge advocate and executive assistant to the commander, Naval Investigative Command. In August of 1989, Admiral Hutson moved to the Office of Legislative Affairs as director of legislation.

Between October 1992 and November 1993, he was assigned as the executive assistant to the judge advocate general of the Navy. In November 1993, he resumed duty in the Office of Legislative Affairs. In August of '94, he assumed duty as commanding officer, Naval Legal Services Office in Europe and Southwest Asia, located in Naples, Italy. In July 1996, Admiral Hutson returned to the Naval Justice School as commanding officer. He was promoted to the rank of rear admiral and assumed duties as the judge advocate general of the Navy in May of 1997.

Admiral Hutson was awarded the Distinguished Service Medal, the Legion of Merit with Three Gold Stars, the Meritorious Service Medal with Two Gold Stars, Navy Commendation Medal and Navy Achievement Medal.

It's certainly an honor to have Admiral Hutson with us today.

ADM. HUTSON: Thank you, Senator Cardin. I probably should have sent a shorter bio into the committee.

SEN. CARDIN: (Laughs.) That was very impressive. You deserve the entire introduction.

ADM. HUTSON: Thank you. And thank you to the committee for inviting me. I have a written statement that I'd request be made a part of the record.

SEN. CARDIN: Your entire statement will be made part of the record, as will all of the witnesses' entire statements be made part of our record.

ADM. HUTSON: Thank you, Senator.

I testified a few years ago in opposition to the nomination of -- rather the confirmation of the former attorney general, along with my good friends Harold Koh at Yale and Doug Johnson at the Center for Victims of Torture. Unfortunately, our concerns at that time turned out to be prescient.

I'm not here today to testify in opposition at all to the confirmation, but rather to simply highlight some of the concerns that I have in what I believe to be important areas of consideration. And I'd like first of all, I guess, to make two points which may perhaps seem to be unrelated, but in fact are very much related.

One is a point that virtually all the witnesses have made and can't be gainsaid, which is that the United States is a country of laws; we adhere to the rule of law, or we should try to; and that there's no one more important in that regard than the attorney general of the United States.

The second point that I think is related to that is that most of the great nations in history that have failed have failed as a result of foreign and domestic misadventure. Our adventure right now, foreign and domestic, is the so-called global war on terror, which I think is actually three different wars. But in that struggle, the enemy cannot defeat us militarily. They don't have the lift, they don't have their command and control, communications, they don't the weapons systems. They can't defeat us militarily. Winning, for the enemy, is to cause us to change, to bring us down to his level, to cause us to be something different than what we have been.

Our great strength? The support of human rights and the rule of law. Thomas Paine said that the cause of America is the cause of all mankind. The great more recent geopolitical commentator Bono said that America isn't just a country, it's an idea.

We are engaged in an asymmetric war. In an asymmetric war, the strategy is to pit your strengths against the enemy's weakness -- unlike World War II, for example, where it was often strength against strength. Our great strength is our ideals. Thomas Paine and Bono had it right. The enemy is abjectly devoid of ideals.

So the enemy can't defeat us -- it certainly can't defeat us militarily -- but we can commit national suicide by disarming ourselves of our ideals. And there are lots of unfortunate examples of how we have started down that road: the Bybee torture memo, the Gonzales memo with regard to the Geneva Conventions, suspension of habeas corpus, Combatant Status Review Tribunals, Guantanamo and indefinite detention, lots and lots and lots of examples of torture. We can all say that the United States doesn't torture, but all you've got to do is read the newspapers and you see lots of examples of it. And more recently, the CIA authorized enhanced interrogation, a lovely euphemism, justified by secret memos -- legal opinions from the Department of Justice.

Let me give you some examples where that road is not. Going back to 1950, the United States -- this is "The Armed Forces Officer" -- "The United States abides by the laws of war. Its armed forces and their dealing with all peoples are expected to comply of the law of war in spirit and letter. Wanton killing, torture, cruelty are the working of unusual and unnecessary hardship." We all talk about torture. Back then, they were talking about the working of unusual, unnecessary hardship on enemy prisoners or populations is not justified under any circumstances.

Article 3039 of the Uniform Code of Military Justice: "Cruelty and Maltreatment: Any person subject to this code is guilty of cruelty toward or oppression or maltreatment of any person subject to his orders shall be ordered punished as a court marshal may direct."

Common Article 3 of the Geneva Conventions: "The following acts are and shall remain prohibited at any time and any place whatsoever," including, among others, "outrages upon personal dignity, in particular humiliating and degrading treatment." The Supreme Court never said part of Common Article 3 applies; the Supreme Court said Common Article 3 applies. That includes outrages on personal dignity.

We don't need a measured repudiation of those definitions of torture as being mistakes or unnecessary. We need a clarion call.

We need a ringing, unequivocal repudiation of those definitions of what has happened that is so strong that it brings tears to your eyes and makes small children wince in its force.

We are not engaged in an existential struggle here unless we make it so. Only Americans can make America change. If we falter now or cower as a nation in the face of this adversity, if we disarm ourselves, we don't deserve the gifts that were given to us by those early patriots or by the world's greatest generations. And it's the attorney general who, to mix metaphors, stands at the pinnacle and will make the decision whether we are at a pendulum or a plateau.

Thank you very much, Mr. Chairman. I welcome your questions.

SEN. CARDIN: Well, thank you for your testimony and thank you for your service to our country.

The next witness is Professor Dawn Johnson. Professor Johnson attended Yale College, where she received her BA in economics and political science. She graduated summa cum laude and was a member of Phi Beta Kappa. She then attended Yale Law School, where she received her JD. And after law school, Professor Johnson clerked for the Honorable Richard Cudahy in the U.S. Court of Appeals for the Seventh Circuit. A year later, she joined the American Civil Liberties Union as a staff counsel fellow. After leaving the ACLU, she spent five years as legal director for NARAL.

In 1993, she joined the Department of Justice as deputy assistant attorney general and then became acting assistant attorney general for the Office of Legal Counsel. The assistant attorney general for the Office of Legal Counsel is the fifth-ranking Department of Justice official, who serves as legal advisor to the president and the executive branch, supervising about 24 lawyers in advising the counsel to the president, the attorney general, and the general's counsels of the various executive departments and agencies. In 1998, Professor Johnson became a professor of law at Indiana University School of Law, where she teaches constitutional law, separation of powers and First Amendment. Professor Johnson has testified before Congress, is a frequent speaker at national conferences, and has appeared on many national television and radio news shows.

It's a pleasure to have you here, Professor.

MS. JOHNSON: Thank you. Good afternoon.

I'm very glad for this opportunity to talk with you today about the Department of Justice. I had the great privilege of serving there at the Office of Legal Counsel, OLC for short, for five years, including as the acting assistant attorney general heading that office, and I care deeply about its integrity. OLC's core function is to provide the president and other executive branch officials with the legal advice they need to act lawfully.

The work of OLC under the current administration has been dangerously compromised. Excessive secrecy makes it impossible to fully assess the problem, but we do know that on least some counterterrorism matters, OLC has abandoned its traditional role and instead has facilitated policies that do not comply with the law.

Former head of OLC Jack Goldsmith, who served in 2003 to 2004, wrote recently that some Bush-era OLC opinions, and I quote, "were deeply flawed, sloppily reasoned, over-broad and incautious in asserting extraordinary constitutional authorities on behalf of the president." Goldsmith correctly notes that even a deeply flawed OLC opinion is akin to a get-out-of-jail-free card because it is virtually impossible to prosecute someone who relied on an OLC opinion.

Congress should respond to these failures by demanding public accountability, specifically the release of opinions, and the restoration of OLC's tradition of independent legal analysis. I'd like to suggest as a framework for that a statement of 10 principles to guide the Office of Legal Counsel. A group of 19 former OLC lawyers coauthored this statement in response to the infamous 2002 OLC torture memo in hopes of helping to prevent any future recurrence of that debacle.

The principles state that they are drawn from the long-standing practices of the attorney general and the Office of Legal Counsel across time and administrations. I have submitted the entire statement of principles with my written testimony and now would like to highlight just two of those principles.

The first and most fundamental principle reads: "When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies." In short, OLC has to be prepared to tell the president no. Now, let me stress that saying no does not mean disabling the government from meeting national security threats. I deeply appreciate the Department of Justice's critical role in protecting our nation from terrorism. It does mean, though, helping the president to meet those threats and to proceed in a lawful manner.

In the Bush administration, the most controversial policies -- think about warrantless domestic surveillance, the establishment of military commissions, coercive interrogations to the point of torture -- the critical question in all of these matters was whether the president would act unilaterally and largely in secret, skirting applicable legal requirements, or would he comply with the constitutional process for lawmaking by submitting his recommendations for change to Congress. The president consistently has chosen to go it alone.

The second principle I'd like to mention, I want to state this most clearly and emphatically: The Department of Justice must avoid secret law. And I quote from the principle: "OLC should publicly disclose its written legal opinions in a timely manner absent strong reasons for delay or non-disclosure." Of course, the executive branch at times has legitimate needs, even compelling needs, for secrecy.

But public explanation is critical any time the executive branch does not fully comply with a federal statute or interprets a statute in a way that would surprise Congress.

Recent reports suggest this may be the case with the recent ban on cruel, inhuman and degrading treatment. Congress cannot effectively monitor and regulate the government unless it knows how the executive branch is interpreting and implementing the laws Congress already has enacted. Congress needs those secret OLC opinions that interpret the Detainee Treatment Act.

It pains me to see what has happened to the Department of Justice, an institution that I greatly esteem, which is populated by many, many fine lawyers. Congress and the next attorney general must confront the reality that the problem ultimately lies not with DOJ, but with the president. Numerous reports confirm that the president and the vice president and their top advisers, they have been deeply hostile to any checks on their counterterrorism policies. The next attorney general will face great pressures and he will need Congress' strong support to do the right thing. He should scrutinize OLC's work, rescind flawed opinions, publicly release many of the opinions, and restore OLC's traditional role to publicly announce principles and procedures.

In conclusion, this committee should engage in aggressive oversight to ensure all of this is accomplished, and beyond this, that the executive branch complies with the laws. Thank you.

SEN. CARDIN: Thank you very much for your testimony.

We'll now here from Mr. Theodore Shaw. Mr. Shaw is the director- counsel and president of the NAACP Legal Defense and Education Fund. Mr. Shaw joined LDF in 1982. He directed LDF's education docket and litigated school desegregation, capital punishment and other civil rights cases throughout the country. In 1990, he left LDF to join the faculty of the University of Michigan Law School, where he taught constitutional law, civil procedure and civil rights. In 1993, on a leave of absence from Michigan, he joined LDF as associate director- counsel.

Mr. Shaw graduated from Wesleyan University with honors and from Columbia University School of Law, where he was the Charles Evans Hughes fellow. Upon graduation, Mr. Shaw worked as a trial attorney in the Civil Rights Division of the United States Department of Justice from 1979 until 1982. He litigated civil rights cases throughout the country at the trial and appellate levels, and in the United States Supreme Court. Mr. Shaw resigned from the Justice Department in protest of the Reagan administration's civil rights policies.

The National Bar Association Young Lawyers Division recently presented Mr. Shaw with the A. Leon Higginbotham, Jr. Memorial Award. He has also received the Lawrence A. Wein Prize for Social Justice from Columbia University. He was awarded the Baldwin Medal, the highest honor given by the Wesleyan University alumni body, for extraordinary service to the university and the public interest. He serves on the Wesleyan Board of Trustees for 15 years, and was senior vice chair of the board when he retired from the board in June 2003.

Mr. Shaw, it's a pleasure to have you before our committee again.

MR. SHAW: Thank you, Senator.

As you've noted, I started my legal career with the Justice Department in the Civil Rights Division about 28 years ago, and it was a great place to work. It was a dream job. It was a wonderful start for a young lawyer. And what I was conscious of, as well as all of my colleagues, was the great tradition of the Justice Department, and particularly of the Civil Rights Division.

I recently attended a reunion of alumni of the Civil Rights Division here in Washington, D.C., and one of the tragic things about that reunion -- the reunion, of course, itself was not tragic, but it was tragic that not one person from the Civil Rights Division or the Justice Department representing this administration was present. That said volumes about the breach that exists between those who served at the Justice Department in the Civil Rights Division, under Republican and Democratic administrations alike, and the present leadership of the Justice Department and the Civil Rights Division. And I hope -- I am sure that's something that will change. There's a lot of healing that needs to be done, and a lot of restoration within the Civil Rights Division and within the Justice Department.

The core mission of the Civil Rights Division at its inception was the battle against racial discrimination, particularly as it was visited upon African-Americans. Now, of course, the mission of the Civil Rights Division is much more expansive than that. It represents the interests of all Americans, indeed all people in this country, in protecting them against discrimination.

So while the division's work has expanded as it should have and it does work that involves gender discrimination, discrimination on the basis of disability or people who are institutionalized, we believe that there is a manifest in balance in the Civil Rights Division's work that has cropped up in recent years. The division does relatively little work on behalf of African-Americans. To put it bluntly, I think most African-Americans who experience racial discrimination do not feel like the Justice Department is a place to which they can go, take their problems, and know that their interests will be protected. And I lament that.

While in office in the last six-and-a-half years, the department has brought only five cases including allegations of racial discrimination against African-Americans under Section 706 of Title VII. At the same time, it has brought three so-called reverse discrimination cases on behalf of white plaintiffs. Now, I want to be clear. I am not suggesting, nor would I ever suggest, that white individuals cannot be discriminated against or that the Justice Department should not protect their interests. But I think that fact -- or those facts speak something about a policy difference that the Justice Department has adopted as compared to prior administrations. Similarly, it has brought only one Section 2 Voting Rights Act case on behalf of African-Americans. That case was filed last year.

I draw your attention or the committee's attention, Senator, to the fact that the Justice Department has also, through its Civil Rights Division, abdicated its responsibilities when it comes to voting rights. There are several now-well-publicized instances in which the department has ignored the advice of career attorneys. And I understand that lawyers are career attorneys don't run the division or the department, but those decisions have been reasoned not on the basis of law apparently, but on politics. The Supreme Court even now has before it a case involving voter ID coming out of Georgia in which the Justice Department pre-cleared a voter ID requirement. That requirement was then struck down by no less than -- no fewer than five courts, three federal court decisions and two state court decisions.

Let me close by pointing out that perhaps nothing is more telling than decisions as a matter of policy by the department, by the division, not to enforce civil rights laws using the most aggressive interpretation of the laws that the courts and Congress have made available, and my testimony gives several examples of this. It is my hope that under Judge Mukasey at the Justice Department as attorney general, should he be confirmed, that the substance and the integrity of the Justice Department, and particularly of the Civil Rights Division, will be restored. The Justice Department is the crown jewel in the executive branch when it comes to the law, and I hope that that status is recaptured.

I must say in closing also, after sitting here and listening to the very eloquent testimony of Admiral Hutson, that I recall after 9/11 I was interviewed and I was asked about the aftermath of 9/11. And what I said then was that my fear was that even if we could win the war on terror, however that's defined, that we might lose our soul as a nation. And I think that is exactly the threat that we are facing now, as Admiral Hutson has very eloquently pointed out. I want to join him. I hope that under new leadership the department again restores itself and our nation to where we should be when it comes to the rule of law.

On behalf of the Legal Defense Fund, it is my earnest hope that, if confirmed, Justice -- rather, Judge Mukasey will restore the department to its long and proud tradition as an institution that serves the American people well. Thank you.

SEN. CARDIN: Thank you, Mr. Shaw.

I'm going to recognize Senator Specter.

SEN. ARLEN SPECTER (R-PA): Thank you, Mr. Chairman.

I just wanted to stop by to thank you for coming in and to say that there are so few people in attendance because people have so many responsibilities and so many directions. I just left the floor. We had a series of votes. I'm ranking on the subcommittee for Appropriations on Labor, Health, Human Services and Education, and I have to stay on the floor.

But I've had summaries of all of your testimony, and we really do appreciate what you have to say. I heard what Mr. Shaw said about enforcement of the Civil Rights Act, and I can tell you that that's a major concern of the committee and the Senate and the House, that a great deal more needs to be done. References made to what Admiral Hutson has done in interrogation tactics, and there's a lot of concern here on habeas corpus and the whole range of executive power, which we've taken a look at.

And I know that there is a strong consensus in favor of Judge Mukasey, and we're very hopeful that he will make vast improvements. But I think this committee was very instrumental in having a change made in the Department of Justice from the oversight hearings which we held. If you had to summarize the difference between Attorney General Gonzales, former Attorney General Gonzales and Judge Mukasey would be on habeas corpus. Attorney General Gonzales inexplicably said habeas corpus was not a constitutional right, and Judge Mukasey said you can't have a limitation on habeas corpus if it's not a right, a perfectly obvious point. And I think that's illustrative of the take off.

So we thank you for coming in and what you have contributed, and again, my regrets because I have to go back to the floor.

SEN. CARDIN: Thank you, Senator Specter. Appreciate your comments.

We'll now hear from Mary Jo White. Mary Jo White was the first woman to be a U.S. attorney from the Southern District of New York, serving from 1993 to 2002. When Ms. White left her post as a U.S. attorney from the Southern District Division of New York on January 2002, she was acclaimed for her nearly nine years as a leader of what is widely recognized as a premiere U.S. Attorney's Office in the nation. She has supervised over 200 assistant U.S. attorneys in prosecuting some of the most important national and international matters, including complex white collar and international terrorism cases. She is noted for having overseen prosecution of John Gotti and the terrorists responsible for the first World Trade Center bombings in 1993.

She's a fellow of the American College of Trial Lawyers and the International College of Trial Lawyers, a recipient of numerous awards and is regularly ranked as the leading lawyer by directories that evaluate law firms. In addition, Ms. White served as director of NASDAQ Stock Exchange in its executive audit and policy committees between 2002 and February 2006. She's also a member of the Council on Foreign Affairs. Ms. White received her Bachelor's of Arts Degree from the College of William and Mary and later attended Columbia University School of Law, where she received a J.D.

Currently, Ms. White is the chair of Debevoise & Plimpton's 225 lawyer litigation department.

Ms. White, it's a pleasure to have you before us.

MS. WHITE: Thank you very much, Senator Cardin. It's my privilege to speak on behalf of the nomination of Judge Michael B. Mukasey. He is a man of great intellect and integrity with an unswerving commitment to the rule of law. He is independent, fair- minded and has a wealth of relevant experience from his years of service on the bench, in the private and as an assistant United States attorney in the Southern District of New York.

There could not be, in my view, a stronger or better nominee to head the Department of Justice, particularly at this time, when the department is in need of a strong and respected leader as our country faces one of the greatest challenges in its history -- to secure the nation against the threat from al Qaeda and related terrorist networks, and to do so consistently with the rule of law and our principles as a free and democratic society.

I have no doubt that Judge Mukasey, if confirmed as attorney general, will meet that challenge on behalf of the Department of Justice effectively, intelligently and with sensitivity to all of the complex issues that are inherent to this unique challenge to which there are no easy or obvious solutions.

I am equally confident that Judge Mukasey will be a superb leader of the department in carrying out its many other important responsibilities and priorities that are vital to the rights, safety and well-being of the American people.

The way I know Judge Mukasey is that when I served as U.S. attorney in the Southern District of New York from 1993 to 2002, I had the privilege of observing him directly and through the eyes of my 200 assistant United States attorneys and saw him supervise -- preside over numerous cases with skill, with dignity and with an absolute fairness and even-handedness with respect to the parties before him.

As a judge, he embodied all of those qualities of intelligence, temperament, preparedness and fairness that bring high credit and honor to our American system of justice. In each encounter I have had with Judge Mukasey, I have come away with deep admiration for him -- as a person, as a lawyer and as a public service (sic). I thus join with the many others who strongly support his nomination, including representatives of the defense bar as well as prosecutors.

As mentioned by Senator Kyl, I believe, this morning, I did also observe Judge Mukasey preside over one of the most complex and difficult trials, I think, in our history, and that was the terrorism trial involving the head of the al Gamat terrorist organization, Sheikh Omar Abdel Rahman and nine of his co-defendants, who were charged with an horrific plot to blow up in a single day the tunnels connecting New York and New Jersey, the George Washington Bridge, the United Nations and the FBI's headquarters in Manhattan.

In this day-of-terror trial, Judge Mukasey was called upon to deal with and decide novel and some of the most difficult issues ever faced by any court. He did so, and he did so while keeping his eye on the primary ball in any trial, and that is to ensure a fair proceeding for all parties.

What Judge Mukasey learned substantively and procedurally from this trial I believe will serve him very well as attorney general, as he shapes and guides the Department of Justice's role and policies in addressing the grave threat posed by radical Islamic terrorism.

Another daunting challenge that any attorney general has to do and faces is to oversee and manage the over 100,000 employees of the Department of Justice and its many programs and component parts. While Judge Mukasey, of course, has not been previously called upon to manage an organization of the kind and size of the Department of Justice, very few have, I believe he brings to that task both the right qualities and the relevant experience. He is first and foremost a leader with credibility who leads by example and motivates by example professionals to do the best work of which they are capable. He is organized, efficient, works extremely hard and has the ability and judgment to prioritize and delegate wisely.

As chief judge of the United States District Court in New York for six years, Judge Mukasey was called upon to manage what is our oldest and largest federal court with over 40 active and senior judges, 15 United States magistrate judges, 11 bankruptcy judges. The Southern District of New York has one of the busiest and most complex dockets in the country, typically over 12,000 new filings, civil and criminal, each year. The chief judge of the Southern District of New York is ultimately responsible for, among other things, the budget, security issues, personnel, infrastructure, subcommittees on various issues affecting the court, litigates and juries, interagency communications and docket administration. In addition to having responsibility for these issues, Judge Mukasey as chief judge guided the federal court in the Southern District of New York from a paper- filing system to the electronic case-filing system and put in place the first emergency preparedness program for a federal court.

As it happened, Judge Mukasey was fortunately the chief judge of the Southern District of New York on September 11th. His leadership during this time of extreme crisis has been accurately described by many as heroic. The Southern District of New York's courthouses in Manhattan are located just a few blocks from where the World Trade Center stood. All of us working in the vicinity of the courthouse complex on September 11th personally witnessed the horror of that day and were required to respond to the physical and emotional issues of our staffs, and then worked to try to restore normal functioning in the aftermath of the most abnormal and jolting experience any of us had ever encountered.

Judge Mukasey directed that the two Manhattan federal courthouses be closed immediately, but kept the court running from the White Plains courthouse 30 miles north of the city. He then reopened the Manhattan federal courthouses on September 18th, 2001 fully for business despite badly disrupted phone systems, computer systems, not to mention the emotional stress of the court's employees. But as the district executive of the Southern District who works for the chief judge observed, almost everyone who worked at the courthouse was back at their desk. It was very important to come back downtown and to come back to work. Everyone wanted to be together to do our best to show that life would go on in New York. Well, for the Southern District of New York, Judge Mukasey and the district executive staff he managed made that possible.

In closing, I believe that however he is measured, Judge Mukasey will be a superb attorney general. He will hit the ground running at the Department of Justice and deal effectively with its full range of priorities and problems. He will lead and inspire the career lawyers at the department and in the field, as well as the United States attorneys. He will remain the person he has always been -- a dedicated, hard-working public service -- servant, with the ability and humility to do an outstanding job of which I'm sure we will all be proud.

Thank you very much.

SEN. CARDIN: Thank you very much for your testimony here today.

We will now hear from Judge John Martin. Judge Martin, a partner in Martin & Obermaier in New York City, was a United States district judge in the Southern District of New York from 1990 to 2003 and worked very closely with Judge Michael Mukasey in that capacity. Prior to his judgeship, Judge Martin served as the United States attorney for the Southern Division of New York from 1980 to 1983, worked as an assistant to the solicitor general of the United States in Washington, D.C. and worked in private practice.

A native New Yorker, Judge Martin graduated from Manhattan College and Columbia Law School and clerked for the Honorable Leonard P. Moore of the United States Court of Appeals for the Second Circuit. Judge Martin has received awards for his outstanding service, including the Emory Buckner Award from the Federal Bar Council and the Judge Edward Weinfeld award from the New York County Lawyer's Association.

Judge, it's a pleasure to have you before our committee.

MR. MARTIN: Thank you very much, Senator Cardin.

I'm honored to be here and very pleased to have the opportunity to express publicly my high regard and affection for the nominee for attorney general, the Honorable Michael B. Mukasey. I've known Mike Mukasey for over 30 years, but I got to know him best when we served together on the Southern District of New York. Michael Mukasey is one of the most decent human beings I know, and I think he possesses the qualities of intellect and humanity that we should want in a person to serve as attorney general of the United States.

We worked together -- I was the chair of the clerk's committee while he was chief judge. We worked closely together during that time, and I saw first hand his compassion and his leadership. During that period our clerk of court died after a long battle with cancer. No one could have been more caring than Judge Mukasey was of the concern of our clerk. No one could have been more compassionate in that situation.

In addition, as Mary Jo has pointed out in some detail, he was an able leader, someone who sought advice and who inspired those around him to do their best. He also had the unenviable task of trying to organize and lead 40 United States district judges, each of whom was appointed for life. Judge Mukasey handled that task with grace, and when he stepped down as chief judge, he left with the respect and admiration of all his colleagues.

To some extent, no individual is qualified to be attorney general. But the same can be said of a United States district judge, because in both cases, you're faced with areas of the law with which you had no experience in private practice. The breadth of United States law is staggering, and the attorney general and the district judge have to deal with that.

But you learn from that how to listen to experts, to weigh what they have to say and to make judgments as to what is the right thing in the situation.

In addition and most important, for someone who is to become the attorney general, you learn that the law is above politics and that your personal political views have no place in the administration of justice. Michael Mukasey was a superb United States district judge, and I have no doubt that if confirmed, he will be a superb attorney general. He possesses both the intellectual ability and the openness of mind that will serve him well in formulating the policies to be carried out by the attorneys in the Department of Justice.

While I've never the pleasure of appearing before Judge Mukasey, I have had the pleasure of reading his opinions. He was a thoughtful and intelligent jurist.

I also have one experience with him that I think demonstrates that he possesses one of the most important qualities for someone who would be the attorney general, and that is the willingness to rethink a position.

Several years ago, I decided a case -- and I forget what the issue was -- but there was only one opinion on point, and it was by Judge Mukasey. It was a rare case in which I disagreed with him. And I wrote an opinion and said, "I have great respect for Judge Mukasey, but I disagree with him here." A year or two later, he sent me a copy of an opinion he had just written in a similar case, in which he referred to his prior opinion and my opinion and said, "I've changed my mind. I think that the other is the right law." I don't know many judges who possess both the unique quality of self-confidence and humility that would allow them to admit publicly that they were changing in a position. But that's what I think the quality that you have to have if you're going to lead something like the Department of Justice and be faced on a daily basis with complex and difficult questions to decide.

As you might expect, Judge Mukasey's nomination has been the subject of considerable comment in the New York legal community. I can tell you that the unanimous views of everybody with whom I have spoke -- friends of Judge Mukasey, former colleagues and, I think, particularly important, lawyers who appeared before him -- is that Michael Mukasey will provide the type of leadership necessary to ensure the American people have confidence that justice is being administered fairly and with integrity.

Thank you very much.

SEN. CARDIN: Thank you all very much. I very much appreciate your testimony, and I think it's extremely helpful to our committee.

Governor Thornburgh, I want to just ask you sort of a loaded question. If Attorney General Mukasey calls you the day after he's sworn into office and asks advice what he should do -- (laughter) -- as some of his first measures, in order to restore the type of confidence, not only within the department, which is in trouble today, but public confidence in the Department of Justice, what type of advice are you going to give him?

MR. THORNBURGH: I don't think I could do much better than the steps that he outlined in his testimony which really involved taking charge of the department. And I think that that's the important thing that has to be done -- to exhibit those qualities of leadership that I think he's fully capable of; ensure that the present vacancies are filled expeditiously and with people of equal caliber to his own; to visit with the leadership of the department personally, not just the leadership at the top but in the various sections and units within the department. It's a massive operation. And I frankly enjoyed, when I was in office, the institution of kind of brown bag lunches with the rank-and-file staff lawyers to kind of get their view of what was going on.

So that -- I think his task will be really to grab the reins of the department, to make clear that he's in charge, and to articulate as often as possible to the public, through the media and through appearances, his core values, expressed so eloquently during these hearings, that indicate his commitment to the rule of law, his commitment to fairness and justice, and in every one of the operations that the department carries out, make clear that he means business when it comes to reinvigorating his department's very important mission.

SEN. CARDIN: Would you be advising him that -- there's so many vacancies in the top positions in the attorney general with the Department of Justice -- would high on your list be to try to influence appointments quickly at these top positions consistent with his priorities within the Department of Justice?

MR. THORNBURGH: I would think that has to be a priority. I deal from time to time with the Department of Justice, and lately it's discouraging to find that there's nobody home when it comes to key decisions being made; that's the frustration of a practitioner, but I'm sure it's also a frustration within the department. And I think one of his highest priorities, which I'm sure he recognizes and will carry out, is to seek out advice and recommendations from his long and rich career persons who can fill those key positions. Obviously that will be done in tandem with the White House and to see that those positions are filled and that the department's in full running order just as quickly as possible.

SEN. CARDIN: Thank you.

Admiral Hutson, I must confess that I concur completely in your testimony. I found it well-articulated, and -- some of the things that I think we try to say here in the Senate but not quite as effectively as your testimony, and I thank you for that because I think it added greatly to the record here.

I also believe -- it won't surprise anyone here to learn that Judge Mukasey did an excellent job before our committee as far as the frankness of his answers, as far as assuring us of his independence. But there was one area that I think many of us are concerned about, and that is whether there will be an effective voice within the attorney general to speak out against the United States condoning any forms of torture. I say that because Judge Mukasey was very clear that torture is not allowed; it's unconstitutional and against our laws. He made it very clear also that he would pursue holding accountable anyone who violates those statutes or the Constitution, even if that person was operating under the direction of someone in our military or in the White House.

But then he was less than clear as to circumstances in which conduct would be -- not fall within the prohibited areas, including some that are pretty obviously commonly considered to be torture. There's also the international perception that the United States is playing on definitions here rather than leading and saying clearly that we won't tolerate any forms of conduct that traditionally have fallen within torture.

So I'd like to get your assessment as to how you felt -- I don't know if you listened to the testimony or not.

ADM. HUTSON: Yes, I did, Senator.

SEN. CARDIN: I would welcome your thoughts on that.

ADM. HUTSON: Thank you, Senator.

The United States as a nation and then the attorney general as an individual has to be absolutely unequivocal. We can't dance around definitions, we can't dance around, you know, what is torture and what's cruel and what's inhumane and what's degrading, as we have done.

In the past, we never had to worry about that because we were never close to the line. We were always a long ways away from the line. Now, we want to be right up next to the line, so suddenly what those definitions are become important.

I think that is a terrible mistake for this country, because that same cleverness is going to come back to fight our troops, because it's our troops who are forward-deployed. When Eisenhower and Marshall and Senator Vinson and others looked at the Geneva Conventions, they were not looking at them as a limitation on our behavior. They were looking at them as a limitation on the enemy's behavior. They were there to protect U.S. troops. That's what we were thinking. Now, suddenly we're looking at ways to dance around it so that we can engage in that kind of activity and, as then-Legal Counsel Gonzales said, so that we can avoid the War Crimes Act. My goodness, how did we get to that point?

You know, torture is the method of choice of the lazy, the stupid and the pseudo-tough, and that should not be the United States. No matter how you define torture, it's unconstitutional. It violates statues; it violates the UCMJ; it violates Common Article 3. It violates what your mother taught you and it violates what you learned in kindergarten, and we ought not be even close to it.

SEN. CARDIN: Well, I thank you for that answer. One of the hats I wear in the United States Senate is the Senate chairman of the Helsinki Commission, which deals with the human rights dimensions. And historically the United States has used that forum to promote action against inhumane treatment and torture by so many countries in our regions. I find that I'm spending most of my time trying to answer questions about conduct in our own country, whether it's Guantanamo Bay and the detaining of individuals there, or whether it's the signing statements of the president on torture, or whether it is dealing with the way that we treated prisoners in Afghanistan and Iraq.

So I agree with you. I think we've lost our standing internationally on this issue. And now that when we equivocate on definition, it is really subject to scrutiny and concern by the international community.

ADM. HUTSON: May I make one more point, sir?

Other than perhaps the rack and thumbscrews, waterboarding is the most iconic example of torture in history. It was devised, I believe, in the Spanish Inquisition. It has been repudiated for centuries. It's a little disconcerting to hear now that we're not quite sure whether -- where waterboarding fits in the scheme of things. I think we have to be very sure where it fits in the scheme of things.

SEN. CARDIN: Well, I am hopeful that once Judge Mukasey becomes more familiar -- he didn't seem to be familiar with that. I hope during the question and answers, that will still happen as part of the confirmation process, that we can get a clear view from the nominee that that is clearly a prohibited practice under not only our Constitution and our laws but international standards of inhumane treatment.

So I agree with you, and I hope that we'll get that clarified.

Professor Johnsen, I want to go back to statements you made about the release of the opinions on the -- that have been made from the Office of Legal Counsel. Senator Specter, I thought, was pretty articulate and persuasive that if the United States Senate, if the Congress is to do its oversight, that we have to get access to the fundamental documents controlling activities within the executive branch, and if there's sensitivity to some of these documents, then we will take it in a closed session, but that we need to be -- have access to what is guiding executive actions.

You were in that office. Are we being unreasonable in our requests? And will this put an unreasonable restriction on the prerogatives of the president, of the executive branch?

MS. JOHNSEN: Absolutely not. The issue, of course, of interrogation and torture, I think, is the perfect one in which to explore this. The Office of Legal Counsel frankly destroyed our nation's reputation on the issue of torture with that infamous 2002 opinion. Congress responded very appropriately, in my view, with the Detainee Treatment Act, made clear: no torture; no cruel, inhuman, degrading treatment anywhere in the world by the United States.

We know that when the president signed that into law, he had a reservation in the signing statement that caused Senator McCain to call him on it.

Now we hear that -- I think astonishingly -- the Office of Legal Counsel, if reports are correct, has issued two more secret opinions interpreting that statute. How can Congress do its job -- you know, how can our constitutional democracy work if the president is interpreting statutes in ways that are flatly inconsistent with what Congress intended and with the words of the statute? How can Congress oversee the executive branch or legislate if it cannot get a straight answer from the president, from the Department of Justice when asked, "How are you interpreting 'cruel, inhuman, degrading'? How are you interpreting 'torture'? Let us see those legal opinions." And if they do contain material, as you said,. that would in some way jeopardize national security, that can be submitted in confidence to the Senate.

I actually am not happy with that option, I have to say. I think on this issue the public needs to know how the president is interpreting these laws regulating course of interrogations. And so I would say if there are any portions that have to be protected, kept confidential, then a redacted version or a specially prepared version has to be provided to the American public, so that we know and the world knows what our policy is on course of interrogation.

SEN. CARDIN: Well, I agree with you on that. I think it should be. I'm just trying to get -- at least be able to evaluate the documents. And if we have to establish procedures -- I don't necessarily disagree with Senator Specter. There are -- we have to make accommodations in order to get this matter moving forward. I think it's worth making accommodations so that we don't run into a constitutional challenge; that could take too long in order to resolve. So -- but I agree with you, I see no reason why this information cannot be made available to the public and if necessary in a redacted form. It seems to me that should be able to be accomplished.

There was one other issue that was brought up that you may have a view on or maybe other members of the panel, and that's an issue about the contempt citation that Judge Mukasey talked about. It seems to me that if there is a challenge, that we need certain documents, and the president believes that that is a part of his executive privilege. There needs to be a way that that can reach the courts. The only way that I know is for Congress -- and it's a very serious matter for us to suggest the contempt citation and to move forward with it and get it completed -- but at that point, it seems to me, there should be little discretion within the Department of Justice in convening the jury -- grand jury and issuing the necessary indictments.

Am I wrong on that? I mean, Judge Mukasey seemed to be very indefinite about whether he would make an independent judgment as to whether the individual acted reasonably; well, if you're in the executive branch following what the president said, that's acting pretty reasonably to me --

MS. JOHNSEN: Right.

SEN. CARDIN: -- even though the president might not be acting reasonably.

MS. JOHNSEN: Right. You might remember that Judge Mukasey actually cited an OLC opinion from the time I was there as well as earlier administrations on this point, and so it is a very difficult matter. I think that there should be a way to get it before a court.

Interestingly, Judge Mukasey said if the Department of Justice has issued an opinion to the president saying it's appropriate to assert executive privilege, then there's a very serious problem with the Department of Justice turning around and prosecuting somebody, and I agree with him on that.

But I think the interesting thing about that is the Department of Justice should not have advised the president in the first place to assert executive privilege.

I think that's where the problem is. The president has a constitutional obligation to accommodate Congress' needs for information, and in this particular issue, the president has not done so. And I don't think the president has received accurate legal advice from the Department of Justice, but that's the point at which I spoke -- the problem occurs.

I do agree with Judge Mukasey that it is difficult and, I think, a due process problem to turn around and process somebody for doing what the Department of Justice said that person should do in the first place. The real problem, I think, is in the erroneous assertion of executive privilege in the first place and not accommodating Congress' compelling need for information on this issue.

SEN. CARDIN: Well, again, I think that's the right analysis, and Judge Mukasey did say that he would weigh-in pretty heavily as to whether executive privilege should be asserted or not. And I agree with you; I don't believe that was done by the attorney general in the assertions that were made in regards to the U.S. attorney firings and other issues in which we have subpoenaed information. So hopefully the judge as attorney general will be in the beginning stages and giving advice to the president, which I hope the president will follow, which leads to the question as to whether Judge Mukasey has the independence and strength to stand up to a pretty strong president, pretty strong-willed president. There's a lot of things you can say about our president, but he is strong-willed.

So let me ask, Ms. White, if I could, and Judge Martin, you know him -- how do you think he's going to fair standing up to a president who wants to do certain things that perhaps the judge thinks is inappropriate?

MS. WHITE: If the circumstance presents itself, my money is on Judge Mukasey.

SEN. CARDIN: (Laughs.)

MS. WHITE: He's one of the most independent, straight-forward, strong individuals I know, most principled. So if it comes to that, I mean, you know, plainly, he will, you know, also be, you know, clear in his advice as to the right path, but if it comes to that, I have no doubt whatsoever he'll stand up.

MR. MARTIN: I think serving as United States district judge he's used to getting -- understanding that people have to obey certain laws, and you've got the power to enforce them. And I don't think that Mike Mukasey's going to have any problem asserting his own views as to what's right or wrong.

SEN. CARDIN: Well, I think restoring the independence of the Department of Justice is the first order of business. With the political interference, which has been acknowledged and under current investigation, that's going to be the first order of business. The second is being able to give independent advice, and that's going to be another challenge. The third is establishing the type of priorities in the office.

Mr. Shaw, I couldn't agree with you more about the disappointment of the Civil Rights Division on its 50th anniversary of its creation. The number of cases that have been brought in regards to the voting rights; to remove obstacles, to participation; the disparate cases that have been brought, the few numbers, in housing and employment have all been, I think, just shocking in a way; that we've had a tradition.

And of course the type of cases that the Civil Rights Division has entered -- they've been on the wrong side, in my view, particularly when you look at the historic role of the Civil Rights Division in promoting rights for all individuals.

So I hope that you can perhaps give us some guidelines as to what we should be looking for from the new attorney general as it relates to the type of cases that you would like to see priority given to.

MR. SHAW: Well, Senator, let me first correct something I may have said. I talked about the Georgia voter ID case. I might have said that that was before the Supreme Court. What I -- if I did, what I meant to say was that issue was up before the Supreme Court, but it's actually in a case out of Indiana.

With respect to what the new attorney general could do, there are a number of things. I think there needs to be first, at least within the Civil Rights Division but throughout the department, a restoration of hiring in an apolitical way of career attorneys. I'm not talking about the political appointees, obviously. But I think that's vitally important to restore the Civil Rights Division and the department's staff generally, the legal staff, to what they once were.

I also think that it would be a good thing for the attorney general and the assistant attorney general, whoever that might be, of the Civil Rights Division to have some dialogue with some of the people who ran the Civil Rights Division under prior administrations, under both parties, as well as some of the career attorneys who have left the department, to get a sense of perhaps how the department could operate to restore its credibility and integrity.

With respect to substantive issues, we find ourselves in disagreement with the department and in a position with the department as adversaries as often, if not more often, than we are allies. I don't expect that we're going to agree on every case, but to take the Seattle and Louisville cases, for example, the issue of voluntary school integration decided in June by the Supreme Court, there the Justice Department for the first time since the 1950s, since Brown, effectively came down against school desegregation or integration. That is a reversal of historic proportions with respect Justice Department's role.

And there are other instances in which we've been in adverse positions where I think we ought not be. Of course we have our point of view. But the Justice Department really has gone astray.

As I've said, I think that the department needs to revisit the cases on behalf of African-Americans and Latinos that are out there that they're not bringing right now, that they're consciously not bringing. It's not that those cases aren't there, because we're asked to represent people in those cases all the time, and we don't have the resources that the federal government has. We can't take on most of those cases. The EEOC still is overloaded with complaints. So the cases are there. The question is what the Justice Department's role is going to be.

So that can be turned around, I think, fairly quickly if the lawyers are unleashed to do the investigations that they've wanted to do, that they have done. And if their suggestions or advice are overridden -- as they will be sometimes, I suppose -- it ought to be done on the basis of a legal analysis that has integrity and not on something that either gives the perception or the reality of a political decision.

SEN. CARDIN: And I think, quite frankly, Judge Mukasey was comforting in his comments in that regard.

And clearly the failure to follow the advice of career attorneys, the reassignment of the individual who was in charge of the election issues in the Civil Rights Division, all that was shown political interference, not just not following the advice of career attorneys. It had the imprint of a political agenda more so than a change in a philosophical approach. And Judge Mukasey, I think, was pretty clear that he won't tolerate that type of activity. And we need to make sure in fact that gets translated to those who are at the Department of Justice in critical positions. And we welcome your review of what happens in the Department of Justice, and we thank you for your role in that regard.

Mr. Canterbury, I want to ask you about another aspect of the Department of Justice, which is handling the criminal agenda. There is -- several of the senators asked questions about violent crimes. You had seen Judge Mukasey as a prosecutor and as a judge. And I would like to get your assessment as to the comfort levels that he will be balanced and fair in prosecuting criminal activities, which is a significant part of the agenda at the Department of Justice, when he's supervising that.

MR. CANTERBURY: We represent 22,000 members in New York state. And in our conversation with federal, state and local officers in that judicial district, our review of cases that the judge has reviewed, we're very pleased with that.

We also -- obviously the attorney general also has oversight of the FBI and ATF and other law enforcement organizations that we deal with on a daily basis, and we feel the experience that he has will help to foster state and local cooperation. And there's been some great strides in the last eight or 10 years in local and state cooperation. But it's pretty obvious to us, from the judge's no- nonsense approach, that that will continue, and we look forward to that.

SEN. CARDIN: I thank you for that.

I was just checking with our staff, because they were supposed to start a vote at 5:00 which they didn't start, which I'm thankful for.

Let me -- I want to last ask one other question, which is an open-ended question for -- to give any of you an opportunity to comment, if you like, and that is trying to summarize the concerns raised during the confirmation hearings. I think I would put that probably in three categories -- there were other issues raised; I'm not oversimplifying it -- but it's the ability of Judge Mukasey to be an independent attorney general; obviously being in the Bush Cabinet but being an independent voice on behalf of the American people.

Secondly, to not tolerate at all any political activities that would relate to the hiring or promotion or firing of career attorneys or involved in influencing decisions on criminal investigations or -- in any way.

And the third would be the priorities of the department, whether this department will carry out his historic role, to protect the rule of law and to protect the civil liberties of the people in this country and to move ahead on the civil rights agenda and deal with those types of issues.

So this is somewhat of an open-ended question. If there's anything more you would like to add to the record in regards to those three issues, I would welcome an opportunity to give you that chance now.

MR. MARTIN: Let me start just with the question --

SEN. CARDIN: Dr. Martin?

MR. MARTIN: -- of the whole political nature. Judge Mukasey hasn't come out of the political system. He was selected by Senator D'Amato's judicial selection committee, which was set up to be independent and to pick people on the merits. So he doesn't come here, I think -- and I think he was nominated for this position because of his stature in the legal community, not because of his Republican credentials -- so I don't think he comes to this as a political figure.

He comes to this as a man of independence, a man of stature, a man of great intellect. And I think those qualities are what he will apply as the attorney general. He is not a politician -- and I don't mean to use that as a bad phrase -- but he doesn't come out of that background. He comes out of the rule of law. That's what he did as a judge; that's what I think he will do as attorney general.

MS. WHITE: Senator, he -- let me just add to that quickly -- he also comes out of the tradition of the Southern District of New York U.S. Attorney's Office, where independence and being apolitical are -- you're imbued with that from day one. The district is and the office is known not so fondly in main Justice as the "Sovereign District of New York," but mostly I think that's very good, and I think it's very good in terms of what it says about how he will be as attorney general.

MR. THORNBURGH: Can I offer just three observations that were reassuring to me in my reading of the record of these hearings?

One, on the issue of independence, of course an attorney general is not independent in the sense that a Justice minister in a European system might be. But the other side of the coin in independence is a willingness to stick by one's beliefs and principles, and, if necessary, resign when those conflicts over principle become so intense that he can't continue, and I think he's clearly indicated that he recognizes that.

Secondly, with regard to political activities, the most reassuring thing I heard was in his introductory statement, where he indicated that the targeting and timing -- and the timing is important sometimes -- of criminal prosecutions would be made without any consideration of the political implications involved.

And this applies largely in corruption cases or in high profile cases.

Thirdly, on priorities, obviously the priorities of the Department of Justice are set by the president, but I think in Judge Mukasey, you clearly have someone who is willing to speak his mind and be an advocate for priorities that he thinks are proper and correct for the administration and his voice will be heard.

So on each of the matters that you raised, I'm reassured by his testimony and would expect that he would satisfy you as to his ability to meet those concerns.

SEN. CARDIN: Thank you.

Admiral?

ADM. HUTSON: Senator, if I could take a small turn on one of your very nice list of priorities. And that is independence. I think it's not only the independence of the attorney general, but that the attorney general as the chief law enforcement officer sets the tone for independent legal advice down the chain of command, if you will. And all those government attorneys need to be able to give independent advice.

We have seen examples of where the advice of the attorneys within the Department of Defense -- the Judge Advocates General -- was ignored, not solicited, not respected. And we got ourselves in a lot of trouble. And it wasn't until the United States Senate called hearings, that the Senate Armed Services Committee called the JAGs, asked for their personal opinions about whether -- what constituted torture and whether the Geneva Conventions applied and so forth, that we -- the American public really heard their independent views on that.

And I think that it's very important for -- particularly in light of the recent past -- it's very important for Judge Mukasey to ensure that everybody understands that opinions of the subordinate lawyers -- it doesn't always have to be followed, but it should be heard and respected.

SEN. CARDIN (?): Thank you.

MS. JOHNSON: I'd like to second everything Admiral Hutson just said, very in line with what I'd like to say in my closing comment; that is, an independent attorney general is necessary, but not sufficient. We do need, as I mentioned earlier, aggressive oversight by this committee. And just this month you had Jack Goldsmith, former OLC from the Bush administration, saying the same thing, that if there had been more oversight, the Bush administration would have made fewer mistakes, and it was only when there was oversight that there actually was deliberation and debate within the administration.

And so I'm very encouraged by what I hear from others on this panel and some of what I've heard today about Judge Mukasey's independence, but that will not be enough unless there's the pressure from this Congress on the administration and, again, an insistence on greater openness so that we know what the executive branch is doing.

SEN. CARDIN: Well, I thank you for that comment, and I am proud of the leadership of Senator Leahy and Senator Specter in this committee, which I believe has been a model of the right role for the legislative branch -- putting aside partisan differences to make sure that the oversight function in fact was effective. And as we have found out, there were very serious issues that needed the public attention and, I think, led to where we are today, so I think you're exactly right. The Framers had it right with the separation of the branches, and let's make sure we carry out our responsibilities here in the United States Congress.

Mr. Shaw.

MR. SHAW: Senator, I was sitting here thinking about my time in the department many years ago, and I think that every lawyer within the Department of Justice knows that the attorney general's a member of the Cabinet and in a sense is a -- that's a political position in some ways. But there's political and there's political. I think, if I remember correctly, what we wanted was to know that the line would be drawn in the right place where it had to be drawn and that our superiors would listen to our suggestions and our analysis even though they made the call, but they wouldn't make it purely on political grounds; and also that the attorney general and the assistant attorney general when need be would be willing to go to bat for the line attorneys and for, effectively, the rule of law within the department. I think that's all one can want and ask for.

I do know, because many of us stay in contact with or work with the attorneys -- the line attorneys in the department, that the esprit de corps is as low as it has been in any time that I can remember. It's demoralized. And I think one of the most important challenges that the next attorney general will face is to restore the sense of -- well, of confidence on the part of the career attorneys that they're part of something that has integrity. That's the sense in which I think the attorneys expect the attorney general to be apolitical and the political appointees to be apolitical, that they, above all else, make their decisions based upon an interpretation of the law that has integrity.

SEN. CARDIN: Well, I thank each of you for being here. I think you've added to the record in a way that I think it's important in confirmation process for an attorney general of the United States, and I've found it extremely helpful to me to try to put the puzzle pieces together because we are clearly all with the same objective, and that is to see the Department of Justice move forward in its traditional respect from the American people and as important part of the administration. And I think that these confirmation hearings have helped us in that regard, and you all have been part of that, and we thank you very much for your presence, your testimony and, most importantly, for your patience, as we've been trying to figure out when this panel would in fact be heard.

The hearing record will remain open for one week in order to be able to supplement the record, and the Judiciary Committee now stands adjourned.

Thank you all.

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