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Kennedy on Mukasey Nomination Hearing


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Today, the Senate Judiciary Committee will begin hearings on the nomination of Michael Mukasey to be the Attorney General of the United States.

The nomination comes at a critical time. The next Attorney General will make decisions on issues of vital importance to all Americans. The nation faces challenges on national security, civil rights and civil liberties, criminal justice, immigration, and many other pressing topics. Unfortunately, the Department has failed to meet these challenges under this Administration. Instead, as the scandal over the firing of U.S. Attorneys has shown, the Department has spent the past few years playing politics with the rule of law, and the nation's interests have suffered as a result.

The next Attorney General will face enormous challenges in restoring the rule of law in both the Department of Justice and the Administration. Every member of the Senate, and especially members of the Judiciary Committee, has a duty to ask thorough questions about how these challenges will be addressed.

The next Attorney General must have the independence necessary to put law above politics and to work openly and effectively with Congress. The nation is best served by cooperation between Congress and the Department on the pressing issues of the day, especially in areas such as criminal justice, civil rights enforcement, and the fight against terrorism.

History provides a model. In 1976, we had a Democratic Congress and a Republican President, and Attorney General Ed Levi worked with Congress to develop a surveillance law that protects both our national security and our civil liberties. He understood the need for Congress and the Executive Branch to work together to serve the American people. Members of the Judiciary Committee were invited to the Department of Justice at least four times to meet on the legislation. As a result of that cooperation, I introduced the first FISA bill in 1976, and two years later the final bill passed the Senate by an overwhelming margin of 95 to 1. Both Congress and the American people greatly valued this constructive approach, and I hope that the next Attorney General will take Mr. Levi's bipartisan cooperation as a model for working with Congress.

It is equally important for the next Attorney General to take urgent steps to end the influence of partisanship in the Department's law enforcement decisions. Our Committee's investigation of the U.S. Attorney firings found a Department deeply infected by partisan decision-making, and it's taken a severe toll on the Department's standing in the eyes of the courts, the Congress, the American people, and the world. To restore its reputation, there must be a full accounting of the problems, and a genuine effort to right the wrongs - including remedies for those who suffered because of personnel decisions improperly based on politics.

It also appears that changes in the Attorney General's Honors Program have allowed partisanship and ideology to trump quality in the Department's hiring decisions. The next Attorney General will need to change that as well.

The politics-first attitude of the Department has done immense damage, but perhaps nowhere as much as in civil rights enforcement. Civil rights is still the nation's unfinished business. Although the civil rights challenges of this century are different from those of the last, we still need a strong, active Civil Rights Division. The next Attorney General must move quickly to ensure that the Civil Rights Division once again fulfills its role as the guardian of civil rights. This Administration has allowed partisan considerations to trump the rule of law, both in litigation and in personnel matters. The recommendations of career attorneys who had served the Division well for many years have recently been overruled in circumstances that strongly suggest political motivation. Free communication between the Division's career professionals and its political appointees has been chilled by fear of retaliation. A former official in the Division admitted to our Committee that he bragged about hiring Republicans for career civil service positions - even though federal law clearly prohibits a partisan litmus test for career Department positions. These events have tarnished the high reputation of a Division that has opened the doors of opportunity for Americans and helped bring Jim Crow to his knees. The next Attorney General must have a serious and specific plan for getting the Civil Rights Division back on track.

Whoever is confirmed to lead the Department of Justice also must undertake fundamental reforms in the Office of Legal Counsel. Too often in this Administration, important decisions apparently were issued without the necessary review at the highest levels of the Department or by other affected agencies.

A number of us in the Senate have long been concerned that many of these opinions were not legally sound and have led us in the wrong direction. They formed the basis for abuse of detainees. They allowed the President to conclude that America doesn't always have to comply with the Geneva Conventions, and that we can try detainees in poorly conceived military commissions.

As a result, we've been shamed in the eyes of the world and have failed in our efforts to bring terrorists to justice. Six years after 9/11, we have not tried and convicted a single detainee through a military commission. These defective legal opinions have harmed our national security. Under Attorney General Janet Reno, the Office of Legal Counsel had a presumption favoring public disclosure of its opinions, so that citizens and lawmakers could stay informed and faulty opinions could be exposed. The Department should return to that policy.

I also believe the Attorney General needs to take an active role to ensure that the federal government is doing its part to assist state and local law enforcement in combating violent crime. Violent crime rates had been falling since 1992, but they've now risen again for the second year in a row. The trend is disturbing, and the Attorney General needs to work with Congress to reach the proper balance between prevention and punishment.

For some time, I've also been concerned about the rise in gun crimes across the country. Each year, 30,000 Americans are killed by gun violence, destroying families and harming whole communities. A recent report by the International Association of Chiefs of Police made 39 recommendations to the Administration and Congress for reducing crime and protecting the safety of police officers and all Americans. It's a call to action, and I hope the next Attorney General will work with us in Congress, across party lines, to do everything we can to make our communities safer.

In addition, we need to be more certain that the death penalty is being applied fairly and without discrimination. We know that mistakes happen in the system - the number of exonerations in the past decade is clear evidence of that.

The Department recently issued a controversial set of regulations for federal courts on death penalty appeals. They give the Attorney General the power to certify states for special, "fast-track" procedures. If these regulations are implemented, it would lead to protracted litigation and public outrage, and further undermine our commitment to the rule of law. The views of the next Attorney General on this matter are critical given the high stakes in these cases.

The next Attorney General can also do much to set the tone for the treatment of immigrants. The Department of Justice ultimately determines the legal status of individuals who appear before the Immigration Judges, who submit appeals to the Board of Immigration Appeals, which may then be certified for the Attorney General's review. Those decisions can have a life or death impact on immigrants, and the Attorney General's enforcement priorities can have a dramatic effect on the immigration debate. Aggressive enforcement of laws prohibiting discrimination against individuals based on their nationality or ethnic background and equally aggressive action against unconstitutional state and local laws on immigration should be a high priority.

Unfortunately, the heavily politicized appointment of immigration judges under Attorney General Gonzales has shaken the confidence of the American people in the fairness of our immigration laws. Immediate attention to this problem is essential to restore the integrity of our immigration courts.

I look forward to learning more about Judge Mukasey's views on these issues, which are of such pressing importance to our country.

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