Hearing of the Senate Judiciary Committee- Justice Department Nominations

Hearing of the Senate Judiciary Committee- Justice Department Nominations

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SEN. BEN CARDIN (D-MD): Mr. Chairman, thank you very much.

And first let me thank both of our nominees for their commitment to public service. We very much appreciate that. We know it's a tremendous sacrifice to your family, and we thank the family for being willing to share you with public service. We thank both of you for that.

I want to follow up somewhat with Senator Whitehouse's comments about following the law and the power between the executive branch and the legislative branch.

So Mr. O'Connor, let me, if I might, start by talking a little bit about the U.S. Patriot Act and how far the administration can go, contrary to what Congress may do. One of the issues that's currently being debated is the exclusivity of the U.S. Patriot Act on obtaining information from U.S. citizens.

There is a balancing that we're trying to do, giving government the ability to get information it needs in a timely way versus protecting the civil liberties of the people of our own country. And we are considering a statute that would be exclusive. As Senator Whitehouse mentioned in some of his statements from legal counsel opinions, there's a question, at least, raised as to whether Congress can do that or not.

You've been involved in some of this litigation. If Congress indeed requires the administration follow a certain action on obtaining information under the Foreign Surveillance Act, can the president go beyond that? And if he can, what does he have to do in order to notify Congress?

MR. O'CONNOR: Senator, yeah, I think, to be clear, that's the Protect America Act, I believe, in the FISA modernization debate that's going on right now that expires. I must tell you, my knowledge of the Patriot Act doesn't really include FISA. That being said, I have a general knowledge. I'm happy to answer the question. I haven't litigated FISA --

SEN. CARDIN: You're correct. It's the legislation we're currently considering.

MR. O'CONNOR: I will say this. I'm generally aware. I don't -- I've never really delved in this FISA world as a U.S. attorney. But my general understanding is --

SEN. CARDIN: You're in for a treat.

MR. O'CONNOR: (Laughs.) My general understanding is that there are really conflicting views on whether or not Congress can regulate and make FISA the exclusive means of the president's authority to engage in warrantless surveillance.

There's an opinion I've seen from Attorney General Griffin Bell where he indicates that FISA does not go to the limits, that there's some inherent authority, recognizing, of course, that you get into the Justice Jackson analogy of Youngstown where, when you're in that realm, the president's power is probably at its lowest ebb.

But I also recognize that there are distinguished legal scholars, including the dean of Yale Law School in my district, who feel otherwise, that the president does not have inherent authority above and beyond what Congress gives them under FISA.

I must say, I haven't read these varying points of views. I recognize they exist. They obviously come from people with far more formidable legal minds than mine. And I think the solution is, rather than -- one could probably delve into the issue and give a definitive answer on this, but I think it would be in everybody's best interest to avoid the constitutional question in the first place and try to work in the spirit that Attorney General Levy did with Congress, collaboratively, to avoid a constitutional question on who has what authority.

And it seems to me the best course of action is always to work collaboratively with Congress on this issue and not put ourselves in that third basket that Justice Jackson required but to put us in the first basket, where the president is acting consistent with Congress's authority.

And should I be confirmed -- and I know if, as associate attorney general, this would even be in my domain -- but were I to be asked to participate, I would certainly approach it with the philosophy that collaboration is always better here, and staying in that first basket that Justice Jackson so articulately described, rather than having a situation where one branch of government is not seeing eye to eye with the other.

SEN. CARDIN: Well, I agree with you. It's always best if we can work together. Unfortunately, that has not always been the case. And Mr. Katsas said quite clearly that if he, on a fundamental issue -- (if) there was direction given that he disagreed was following the law, he would consider resigning.

It seems to me that in the number three position at Justice that you'll have an opportunity to exercise a good deal of impact here. And what Congress is trying to do, working with the administration, is develop the manner in which information can be obtained under the Foreign Information Surveillance Act.

And I guess what I would like to know is the respect for the different branches of government and that the Justice Department must exercise independent judgment here. It can't just be the cheerleader for the president. And I would welcome your thoughts as to how you see your role in that regard.

MR. O'CONNOR: Well, should I be asked by the attorney general -- I realize there's a February 1 deadline, I believe, under the Protect America Act -- but should I be asked to participate, I can assure you that my view here would be focused on one thing and one thing only, and that's the law.

But I would say that in cases where there's disagreement over how far Congress can go, the solution is not to ignore Congress and proceed anyway. If you're going to go to that third bucket, you ought to be doing it in close consultation with Congress and you ought to at least let Congress know that you have this difference of opinion.

I hope and I trust -- and anything I would do, sir, as associate attorney general, were I to be confirmed, would be to keep us out of that situation. I don't think it's in the best interest of our country or the department or this branch or the executive branch to have those kind of constitutional showdowns. So I'm optimistic by February 1st that those people involved in these negotiations will come to some sort of resolution that everybody can live with.

SEN. CARDIN: Thank you.

Mr. Katsas, let me, if I might, turn to Guantanamo Bay for a moment. I understand you've been involved in some of the litigations concerning Guantanamo Bay. Where are we going with Guantanamo Bay? Can we maintain the legal position for an indefinite period of time of detaining individuals under unlawful combatant status without rights under normal criminal justice system or even military justice system?

MR. KATSAS: There are two aspects to your question. What does the Constitution require vis-a-vis the Guantanamo detainees, and what is sound policy vis-a-vis the detainees?

On the first -- the first question is pending before the Supreme Court in the Al Odah and Boumediene cases. And we should have a lot more clarity, I would assume, in June when the court, in all likelihood, will render a decision on that question.

Under current law -- under current D.C. Circuit precedent, there is no constitutional impediment to the existing regime at Guantanamo of military tribunals followed by Court of Appeals review, but that's all before the Supreme Court to be decided.

On the broader question of what is sound policy, that's not so much a call for a civil litigator to make, but I can tell you the president has expressed his desire to close Guantanamo as soon as that can be done responsibly.

Consistent with that desire, most of the detainees to have ever been brought to Guantanamo have been released from Guantanamo. About 750 have been brought in, and something on the order of 200 or fewer remain. So I think the Defense Department is doing its best to wind down, as much as it can.

The judgments about whether the detainees can safely be brought to this country, whether they can safely be released or whether they can safely be transferred to other countries under appropriate security conditions and appropriate assurances of humane treatment, frankly, are a bit above my pay grade.

SEN. CARDIN: Let me ask your advice on one other area. There have been many things that have concerned me about Guantanamo Bay. I've been there. I had a chance to meet with (some ?) of our soldiers that have been in Guantanamo Bay.

One thing I never understood is why the United States didn't seek the guidance of the international community on the handling of unlawful combatants. The 9/11 commission talked a little bit about this. And I would just like to get -- you're seeking confirmation to a top policy position within Justice -- as to your views as to the advisability of the United States seeking international standards for a problem that's going to be with us, I'm afraid, for the indefinite future.

We're not going to be able to end the war on terror in the next year or two. So it's likely that we're going to have another round of individuals who are going to be picked up, suspected to be terrorists, who have information that's important for us to obtain for the security of America.

Wouldn't it be -- I don't want to lead the witness, but tell me your view as to whether we should be doing this alone, knowing full well that other countries might very well be in a similar position that we're in, and do things that we would normally object to. Would it be advisable for us to seek some international standards rather than just try to create our own standards of what we think is right?

MR. KATSAS: Other things equal, of course it would be advisable to consult with particularly our allies and other nations. It seems to me that is part of what the Defense Department has done in the past in the following sense. The detainees at Guantanamo have been given tribunals, have had the opportunity to have a military tribunal determine whether or not the detainee is, in fact, an enemy combatant or an innocent person swept up in the --

SEN. CARDIN: I believe that occurred after the courts intervened.

MR. KATSAS: After the Rasul decision in 2004. With respect to your point about consulting international standards, my understanding is that the thinking at the time was to do precisely that and to use, as a model for the detention system in 2004 going forward, the kind of standards that have grown out of Article 5 of the Geneva Convention, which addresses the question of figuring out who is, in fact, a combatant and who is not a combatant and who is entitled to POW status.

Obviously, as we move forward and it looks like detainees might otherwise be staying for the indefinite future, it may well be appropriate to consider further process and further protections. And as part of that dialogue, I would think that the input of our international partners would be a significant consideration going forward.

SEN. CARDIN: Just to clarify the record, I think it would be advisable to do more than consultation. I think it would be important for us, with our allies, to develop international standards through this new type of international problem we're confronting, the unlawful combatant issue, so that there's general recognized international standards for how these detainees should be treated. We did this originally under the authority of the president, without really the Congress or the courts' concurrence, and then finally the courts developed certain rights. Absent the court decision, it's likely that these individuals never would have had a formal process for determining their status.

But I would just hope that we would open this up more. I think we did a lot of things that were very defensible, but we didn't engage the international community, and there is a lot of rumors, some of which were totally false, because of the manner in which we handled it. Ultimately, we just didn't know what to do with them. After a long detention, they had very little value for intelligence, but from a safety point of view, we didn't know whether we should try them or return them or do what, and we're sort of stuck now. And everyone agrees -- at least most people agree -- that Guantanamo, as it originally was constituted, is no longer desirable for us to maintain. Now we don't know what to do with the people that are there.

So I just would urge us to try to gain international support for these types of activities before just saying because we're America, we can go ahead do it because we know what we're doing right.

Mr. Chairman, you've been very patient with time. I want to ask Mr. O'Connor just one more question, or at least comment. I know that you've already -- the chairman's already questioned you on one of the areas that's under your jurisdiction, which is the Civil Rights Division. I don't want this hearing to go without mentioning the Civil Rights Division, because I am deeply troubled by the record of the Civil Rights Division over the last couple years. To me, the Civil Rights Division has had a proud history in America in advancing the civil liberties, civil rights of all Americans, particularly those who have been denied full participation in our society.

And I just would caution you as to what can be done within the Civil Rights Division to really advance the rights of all Americans. I know the chairman talked a little bit about election issues, which I've been working with Senator Obama on legislation that I hope will move forward to give you additional tools.

But I just believe that this is an area that should have no partisan difference, one in which we all should be looking at ways that that division can perform its historic role in advancing the rights of Americans, and would urge you to give this your highest priority.

MR. O'CONNOR: Senator, I will. And I would simply say that Congressman Larson was kind enough to refer to a few cases, but we just most recently took guilty pleas from two New Haven Police Department officers who framed an African-American defendant for civil rights. So I will pledge to this committee that should I be fortunate enough to be confirmed, I will continue the same level of aggressive enforcement of civil rights in Connecticut on a national level. And I'm very, very cognizant of your concerns in this area.

SEN. CARDIN: Thank you.

Thank you, Mr. Chairman.

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