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Hearing of the Senate Judiciary Committee - Nomination of David Ogden for Deputy Attorney General

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Hearing of the Senate Judiciary Committee - Nomination of David Ogden for Deputy Attorney General

HEARING OF THE SENATE JUDICIARY COMMITTEE
SUBJECT: NOMINATION OF DAVID OGDEN FOR DEPUTY ATTORNEY GENERAL
CHAIRED BY: SENATOR PATRICK LEAHY (D-VT)

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SEN. LEAHY: Good morning, everyone. I see my friend Senator Warner here. He seems to be living in this committee recently.

On Tuesday, Eric Holder was sworn in as the 82nd attorney general of the United States. He had strong bipartisan support. In fact, he got the highest number of aye votes of any attorney general for over a decade.

In this committee, it was 17 to 2. And I think that was a testament to Mr. Holder's character, integrity and independence. It also shows the time to restore the Justice Department and restore the American people's confidence in federal law enforcement.

Today, the committee restores -- continues the work of restoring the department.

President Obama nominated David Ogden, a former high-ranking official both at Justice and Defense Departments to be deputy AG, the number two position at the Department of Justice, basically the one who manages the department and acts as attorney general in the absence of the attorney general. In fact, it's the -- currently the holdover deputy attorney general acting as attorney general who's been in charge between Attorney General Mukasey's resignation at the end of President Bush's term and Attorney General Holder's confirmation.

Now in regard -- let me publicly thank Deputy Attorney General Mark Filip, who was appointed by President Bush. He came from Chicago, left a lifetime appointment as a federal judge, motivated by public service, knowing that it was just going to be a short-term position. But he's done a commendable job. He's worked with many of us, both sides of the aisle, to revise the McNulty memo and many other important issues. And so I comment outgoing Deputy Attorney General Filip.

There was another deputy attorney general, a different one, an earlier one during the Gonzales era who had direct supervisory authority over United States attorneys during the scandalous firings for partisan political purposes. That deputy attorney general resigned following the investigation by this committee. And the report by the Department of Justice's own internal oversight offices confirmed the findings of our investigation. Those concluded that both he and Former Attorney General Gonzales abdicated their responsibility to safeguard the integrity and independence of the department by failing to ensure that the removal of U.S. attorneys was not based on improper political considerations. I mention that because the mistakes of the past show how important this position is for the future.

Now, Mr. Ogden's nomination has received dozens of letters of support -- nearly every major law enforcement organization. Let me just refer to a couple. The National Association of Police Organizations wrote that David Ogden has the experience and knowledge necessary to direct our nation's law enforcement efforts. Chuck Canterbury, the national president of the Fraternal Order of Police wrote that Mr. Ogden, quote, "possesses the leadership and experience that the Justice Department will need to meet the challenges which lay before us."

The National Sheriffs' Association joined the law-enforcement support for Mr. Ogden. They wrote that his "comprehensive background and experience in civil litigation complement attorney-general nominee Eric Holder's experience in criminal law, thus making him the ideal nominee for deputy attorney general."

And Mr. Ogden's nomination has received strong endorsement from Republican and Democratic former public officials and high-ranking veterans at the department. Larry Thompson, who's a former deputy attorney general himself, described Mr. Ogden as "a brilliant and thoughtful lawyer who has the complete confidence and respect of career attorneys (that mean ?) justice. David will be a superb deputy attorney general."

Well, I agree. Mr. Ogden is a lawyer's lawyer. He has broad experience in government and private practice. I think that his experience, for example, that -- not at the Department of Justice, but at the Department of Defense, is going to be a key to his success in the years ahead. He was deputy -- as Senator Warner knows -- deputy general counsel at Defense. A dozen retired military officers who served as judge advocates general have endorsed Mr. Ogden's nomination, calling him "a person of wisdom, fairness and integrity, a public servant vigilant to protect the national security of the United States and a civilian official who values the perspective of uniformed lawyers in matters within their particular expertise."

He's the kind of serious lawyer and experienced government servant who understands the special role the Department of Justice has to fulfill in that democracy, and he has the knowledge and ability to help restore it. He's going to be a critical asset for the attorney general. He can help restore the best traditions of the department by ensuring that the career professionals at the department are able to do their jobs and enforce the law without fear of (favoritism ?).

So I commend him and his family for the willingness to serve. And I yield to the distinguished senior senator -- and longest-serving senator -- from the state of Pennsylvania.

SEN. ARLEN SPECTER (R-PA): Thank you. Thank you, Mr. Chairman. The nominee, David Ogden, does bring an outstanding resume to this position. Academically: Phi Beta Kappa, University of Pennsylvania, magna cum laude, Harvard Law Review -- outstanding professional credentials.

And I look forward to an opportunity to discuss the responsibilities of the office with the nominee.

There has been, understandably, a large number of submissions. We're looking at some eight nominees, and so far the academic and professional credentials look very promising.

That does not mean that this committee has any lesser responsibility to find out more about them as they prepare to run the Department of Justice. And we are under very heavy time pressures to complete a great deal of work on a schedule which I believe requires more time.

There are eight nominations pending beyond the deputy attorney general: the solicitor general, the associate attorney general, the assistant attorney general, legal counseling, National Security Division, Criminal Division, Civil Division and the Antitrust Division, all very important, very complicated jobs.

We -- staff has been trying to work out a schedule which can be accommodated by a relatively small minority staff. And it would be my hope that staff could work this out so that it would not take up the time of the chairman and the ranking member.

We're proceeding here today with Mr. Ogden on a questionnaire which we've received on January 23rd, including two-and-a-half boxes of writings, and supplemented the materials on January 30th.

We have a hearing for the solicitor general, the dean of the Harvard Law School -- a very impressive woman -- Elena Kagan, whom I talked to yesterday at some length; but we didn't get her questionnaire until January 26th, including approximately 2,000 pages of writings. And she provided the committee with audio files of 58 of her speeches yesterday, and we're still reviewing over 60 hours of speeches.

Well, on the face of that, there simply isn't adequate time to find out what her record shows, to be in a position to intelligently question her.

We have a hearing also on the same date, next Tuesday, for a nominee for associate attorney general, Tom Perelli, whose questionnaire was received on January 30th, late in the afternoon, including approximately 500 pages of materials.

Now, I won't go on with a long list, because we have a big hearing here, but I'll put the balance in the record and an analysis of the time that has been taken on preparation of similar hearings in the past, which shows a great deal more time -- a great deal more time to prepare.

I've had strenuous concerns raised by my colleagues on the Republican side of the aisle. I hope their staffs will urge them to come to participate in these hearings, because deputy attorney general is very, very important, as are all of these positions. And I have reason to believe that some are not coming because they're not prepared to participate, which is regrettable. But I do hope that this can be worked out on the staff level so that it does not take the time of the chairman or myself.

Thank you, Mr. Chairman.

SEN. LEAHY: Well, thank you. And we will try to move as expeditiously, of course, as we did during the President Bush time and moving his people, and I would assume that we'd want to do the same thing for President Obama.

I'm going to put into the record statements by Senator Mark Warner and Senator Jim Webb from Virginia. They're at another hearing. As Senator John Warner knows, that happens all the time. So their statement in support of the nominee will be placed in the record.

And I yield to our distinguished former colleague, a man I've always called my senator when I'm away from home, Senator John Warner.

JOHN WARNER (former Republican senator from Virginia): Thank you, Mr. Chairman, Senator Specter and members of the committee. I'm privileged to appear before you again on behalf of this distinguished nominee. I appeared on his behalf about a decade ago in a Senate confirmation proceeding, and I was privileged to be asked to return this time for this very important nomination and to be considered by this committee.

I wish to commend the chair and the ranking member and the members of the committee with the -- really, I think, the very thorough and expeditious way in which the nomination of the attorney general, Mr. Holder, was handled and voted upon by the Senate.

And in this instance, this is one of the most extraordinary, well-qualified individuals that I've ever had the privilege to introduce to the United States Senate. He's joined here today by members of his family. I'll allow the chair to appropriately, as timely, recognize that.

And of course the position -- I shall ask for the full statement to be placed in --

SEN. LEAHY: (Off mike.)

MR. WARNER: -- that he oversees the department. The department has more than $20 billion annual budget and more than 100,000 employees nationwide. And his managerial skills -- and he has proven managerial skills -- will be brought to bear on that.

But how fortunate America is to have someone as knowledgeable and as experienced as David Ogden to step up and serve our great nation in this challenging role. David has been a practicing lawyer for more than a quarter of a century, and he's devoted more than a decade of that legal career to public service, mostly in the senior positions at the Department of Justice. As the (distinguished ?) ranking member said, after graduating summa cum laude and Phi Beta Kappa from the University of Pennsylvania, David attended Harvard Law School, graduating from Harvard magna cum laude and as the editor of the Harvard Law Review in 1981.

Subsequent to law school, David served as a judicial law clerk working for the Honorable Abraham Sofaer, a United States district judge on the Southern District of New York. Completion of this one- year clerkship, he was selected to serve as the -- on the United States Supreme Court as a law clerk for the Honorable Harry Blackmun.

After completing two clerkships, David entered private practice and was eventually promoted to partner of the well respected law firm Jenner & Block.

In 1994, he left private practice to serve as deputy general counsel and legal counsel to United States Department of Defense, as was mentioned by our distinguished chairman. During his time at the DOD, David was awarded the Medal for Distinguished Public Service. It's the highest civilian award that can be awarded by the secretary of Defense.

In 1995, David left the Department of Defense and began his service in the U.S. Department of Justice. At the department, David worked on a variety of roles, including associate deputy attorney general, chief of staff and legal counsel to the attorney general and as assistant attorney general for the civil division.

Since leaving government service in 2001, David has worked as a partner at the distinguished and venerable law firm of Wilmer Cutler Pickering Hale and Dorr. At the firm, he is co-chair of the regulatory and government affairs and litigation departments.

Now, Mr. Chairman, I would say without any reservation that this very fine individual is deemed -- was deemed qualified by the United States senate in previous confirmations, and having had the added experience now as an assistant attorney general, he is even more experienced to serve as the deputy attorney general. So I would -- hopeful that this committee will look favorably upon this nomination.

I -- in preparation, Mr. Chairman, if the chair will kindly indulge me a moment, I had a long meeting with this nominee, even though I'd been with him before, because I was concerned about his approach to the very important role that the Department of Justice plays in our -- over national security responsibilities of the executive branch: the duty to work the Departments of State, Defense and the intelligence community as a whole to keep our nation safe and to deter the many diverse threats against our security, while protecting the civil liberties of our citizens.

The gathering of intelligence relating to these threats is essential. And that responsibility has rested for many generations on the shoulders of the most dedicated, courageous of public servants.

If I might say, with a deep sense of humility, 40 years ago this month, I sat before the United States Senate and was confirmed as undersecretary of the Navy. And from that day to this day, I have had constant association with the intelligence community, serving on the intelligence community with two of our colleagues here on the bench today.

And I'm gravely concerned that we've gone through a very serious period of passing laws, trying to make certain that the rule of law, which is the very fundamental basis for our nation, is uphold not only here in the United States but in the eyes of the world and in compliance with the treaties of the world, a we collect intelligence.

And there's been some discussion about actions taken, by persons in the intelligence field and collection field, in the years past. And I subscribe to the theory that no man, no woman is above the law. But I believe in my own experience, having dealt with these people for 40 years, they are among the most dedicated, courageous of our public servants.

And as we move into the future and look to the past and we're being guided by perhaps mistakes that were made in the past, I would draw the attention of our distinguished panel here today to the debate on the floor, on Tuesday of this week, February 2nd, in which time a number of senators addressed this question of the past and how to address it in the future.

Senator Bond, speaking on the floor, he said, I invite my colleagues' attention to the following written assurance, given by Mr. Eric Holder to Senator Kyl about a week ago, concerning the investigation of intelligence officials conducting terror intelligence activities in the past.

And Eric Holder replied to Senator Kyl as follows. Prosecutorial and investigative judgments must depend on the facts. No one is above the law. But where it is clear that a government agent has acted in responsible and good-faith reliance, on Justice Department legal opinions authoritatively permitting his conduct, I would find it difficult to justify commencing a full-blown criminal investigation, let alone a prosecution.

So I was very satisfied with the nominee's observations about this particular part of the responsibility of the department, and I will leave to him to speak to the committee on it.

SEN. LEAHY: Thank you.

MR. WARNER: And I thank you, Mr. Chairman, for the privilege to appear before you, a friend of my 30 years here in this institutions --

SEN. LEAHY: Thank you.

MR. WARNER: -- and my dear friend Senator Specter and other members of the committee.

SEN. LEAHY: I thank the senator very much. And I'm sorry to rush, but because of the bill that's on the floor, I anticipate any time being called back for votes, and we don't want to interrupt if we can.

Thank you very much, and the full statement will be placed in the record, of course.

MR. WARNER: Good. And I have Senator Webb's statement here. He was unable to attend. And I'll hand to the clerk.

SEN. LEAHY: So -- thank you very much.

MR. WARNER: Thank the chair.

SEN. LEAHY: It's -- we're probably going to be making this a weekly event with you. (Laughs.)

MR. WARNER: No, no. (Laughter.)

SEN. LEAHY: Would -- Mr. Ogden, would you please step forward.

MR. OGDEN: Yes, Mr. Chairman.

MR. WARNER: Good luck.

MR. OGDEN: Thank you, Senator.

SEN. LEAHY: Would you raise your right hand and repeat after me? (Administers oath to the nominee.)

Thank you very much. I think we want to change your nameplate there.

Mr. Ogden, I think, as Senator Warner mentioned, you have family member(s) here. Would you like to introduce your family, so someday that will be in the Ogden archives of the -- or the record, showing they were here?

MR. OGDEN: (Chuckles.) A very small archive, I'm sure, Senator. Mr. Chairman, thank you very much. I would like to do that.

SEN. LEAHY: Please do that.

MR. OGDEN: This is my wife, Anne Harkavy. Our one-month-old daughter is not here today; she's home. But she'd be in Anne's lap, if that were possible.

SEN. LEAHY: And congratulations on the --

MR. OGDEN: Thank you.

SEN. LEAHY: -- on your -- the birth of your daughter.

MR. OGDEN: Thank you, Mr. Chairman.

This is my sister Connie Graham (sp) --

SEN. LEAHY: Hi.

MR. OGDEN: -- my uncle Bill Condrell (sp); my sister Ceci Ogden (sp).

Behind me in the second row is my sister Jessica Ogden. Over on the other side, my daughter Elaine Ogden; my son, Jonathan Ogden; and my mom, Elaine Ogden.

In the row behind -- very importantly -- I don't want to forget my lovely nieces Christina (sp) and Juliana Graham (sp).

SEN. LEAHY: The Ogden family sort of fills up half the room here. (Laughter.)

MR. OGDEN: I apologize for that, Mr. Chairman. It's a good thing, but --

SEN. LEAHY: Please go ahead.

MR. OGDEN: Thank you.

Mr. Chairman, Ranking Member Specter, and members of the committee, it is a great honor to be here today as the nominee to be the next deputy attorney general of the United States. I'm grateful and humbled that President Obama and Attorney General Holder have placed such confidence in me.

I would like to thank the members of the committee and their staff for showing me every courtesy and providing me with the opportunity to meet with many of you. Each of those meetings has been instructive, and if I am fortunate enough to be confirmed, I will benefit from your guidance and, I hope, from continued dialogue on the full range of policy issues entrusted to the department and within the responsibility of the committee.

I want to thank former senator John Warner for being here today, and Senators Jim Webb and Mark Warner for their support. My family of Virginians is very fortunate to have had and to continue to benefit from such fine representatives in this body.

I know you will recognize that I owe a great debt to my wife, Anne Harkavy, who is here today, who has agreed that I may stand for this important job just one month to the day after she gave birth to our beautiful daughter Natalie. Anne has been my law partner and will always remain my partner in life. The opportunity for public service presented to me by this appointment would impose many burdens on her, and her willingness to take them on speaks volumes about her love of our country and her husband. Thank you.

I want to thank my son, Jonathan, who is a sophomore at the College of William and Mary, and my daughter Elaine, who is a high- school senior and will soon be attending my alma mater, the University of Pennsylvania. I'm immeasurably proud that they are such fine people and grateful that they are such good friends. And though it is too soon for Natalie to understand anything that's going on here, I also thank her for her sacrifices, which will be real, and hope she will read these words someday.

I'm so glad that my mother, Elaine Ogden, is here today. I wish that my dad, Hod Ogden, could be here too.

From day one, my mom and dad taught me a lot of important things; among them, to give the best of myself to my family, my community and my country; to be willing to take a personal risk to do the right thing; and to say "No" when "No" is the right answer.

Like the other men and women who in recent memory have come before you to be considered for this position, the position of deputy attorney general, I have a special regard for the Department of Justice. I know it to be an essential bulwark of our democracy and our freedom.

I'm the proud son of a career federal civil servant, so it did not surprise me during my service in the department to witness the great dedication and expertise of its career personnel. But I took something away when I left the department that I did not take in with me: the realization that the greatness of the institution is its dedicated career personnel, particularly those senior attorneys who have devoted their professional lives to the department's legal missions, and those law enforcement and national security professionals who put their personal safety at risk every day and night to defend our safety and our rights.

Those career professionals are a precious national resource who carry forward the department's great traditions of independence, non- partisanship, vigilance, restraint, fairness and service and fealty to the law. With proper support, they will continue to transmit those traditions across generations and administrations.

I do believe that the job of the department's non-career leadership, including the attorney and the deputy, is to provide strong management and clear direction about the department's goals, and to ensure good communication up and down and across the many components that comprise the department, and with sister agencies.

I hope I learned something about how to do those things. But it is the department's career personnel who protect the public safety, the national security, the economy, the environment and the public fisc, safeguard our civil and constitutional rights, operate our federal prisons and, as important as any mission in any agency, ensure that our federal government itself operates consistently with its own laws.

So while serving in the department's leadership, I came to understand that leadership's real job in everything it does is to help the department's career professionals do the department's vital work. I also came to understand that the department's leadership, including the attorney general and deputy, have another critical duty: the duty to ensure that the department's career professionals are able to pass along those living, non-partisan traditions to the next group that will at some point take their places, and that the leadership must reinforce those traditions with every official act and statement.

It is the chance once again to help the department's career professionals do those things that brings me here today.

I recognize that the challenges facing the department may be as great as they ever have been across the entire range of the departments responsibilities: national security, law enforcement, civil rights, managing our prisons and the rest of those important responsibilities. But I'm confident that under Attorney General Holder's leadership, and with your assistance and support, the Department of Justice will meet these challenges.

If confirmed as deputy attorney general, I will do everything I can to help. Thank you again for the opportunity to appear before you today. I know that there is great expertise here on both sides of the aisle.

If confirmed, I hope to be able to call on you, for guidance, and will do my very best to ensure that the department works closely with you. I ask that my full statement be accepted for the record. And I look forward to your questions.

SEN. LEAHY: Thank you, Mr. Ogden. It will be part of the record.

One of the most egregious examples we found, during the investigation this committee held, into the Bush administration's firing of U.S. attorneys, for political reasons, was the replacement of Todd Graves as U.S. attorney from Missouri by Brad Schlozman. He was a Justice Department official who for years was engaged in illegal partisan hiring practices at the department.

Now, once he was installed by former U.S. Attorney General Alberto Gonzales, as interim U.S. attorney, Mr. Schlozman brought four indictments on the eve of a closely contested mid-term election in Missouri.

The red book, the long-standing policies of the Justice Department, has -- the guidebook talks about federal prosecution of election offenses. And it provides, in investigating election fraud matters, the Justice Department must refrain from any conduct which has a possibility of affecting the election itself. Thus most if not all investigation of alleged election crime must await the end of the election to which the allegation relates.

That's something, a rule followed by both Democratic and Republican administrations previously. But the Gonzales Justice Department turned this on its head.

They put out their change of policy from the red book in a green book to allow last-minute prosecutorial actions that would influence the outcomes of elections.

Now, without going back through all the investigation that we had of that and the inspector general's report, which is rather damning, let me ask you this, looking forward: Will you reassure us that under your leadership these guidelines are going to be thoroughly reviewed, and if changes are needed that they'll be changed appropriately?

MR. OGDEN: Yes, Mr. Chairman. I did have in my prior service familiarity with the policy that the department had followed for many years as embodied in the red book, as you described. I think the importance that the department and its law enforcement function not be utilized in any way that actually interferes with ongoing election or has the appearance of doing that, it is extremely important to avoid any possibility of that type of interference. And I think the policy was a good one.

I gather that the policy has been changed. I know there were some apparent deviations from the policy. We will look very closely at that to make sure that the right policy is in place and that there's no interference in ongoing elections.

That's not to say that violations of law in connection with elections are not important. They're critically important. The traditional practice has been to deal with them after the election so as to avoid any interference with the actual election itself. And I think that policy generally worked well.

SEN. LEAHY: Thank you.

The mortgage crisis and the financial meltdown have contributed, as we all know, to the economic recession which began last year. And I think we need more enforcement against financial frauds. I was glad to see Attorney General Holder mention this on his first day in office. We have to find out those who -- and hold accountable those who destabilized our economy and defrauded homeowners and investors.

Now, the FBI and the U.S. attorney's offices in recent years had to divert resources from criminal law priorities, including fraud and public corruption, into counterterrorism. The number of cases prosecuted declined -- some places been lack of staffing. Now, I'm working on legislation with Senator Grassley of this committee to increase resources for investigation, prosecution and mortgage fraud and financial fraud.

Can you devote the needed resources to aggressively target mortgage and financial fraud?

MR. OGDEN: Yes, Mr. Chairman. It's imperative that the resources be available to address those issues. My understanding is that the department has had to move a significant amount of resources into the national-security and counterterrorism area. And that was understandable and necessary, and obviously that priority has to be at that -- very top of the list. But the issues of financial fraud in the mortgage area and other areas is -- it's imperative that we address it with sufficient resources. And if I am confirmed, we certainly will do that.

SEN. LEAHY: Thank you. And you served as deputy general counsel, as we mentioned, before for the Department of Defense, which got you involved in a great number of national-security issues. National-security issues also are looked at by the Department of Justice. You must have gained some insights from your work at DOD that will help in the management of the Justice Department's national- security division. Is that correct?

MR. OGDEN: I'd like to think so, Mr. Chairman, yes. No, I guess I would -- I would -- if I were going to identify three principal things I took away from that experience and my succeeding, related experience at the Justice Department, it's, first, the enormous effort that's required across agencies, across resources, in a coordinated way, to defend our nation's security in a dangerous world. Obviously, our appreciation of the dangers became all the greater after I left that service, on September the 11th, 2001, and the succeeding events. But even then, it's clear that it requires an enormous coordinated effort, a sustained effort.

The second thing I would say is that it became very clear to me that turf battles, any sort of interference that can occur between agencies, is the most detrimental possible kind of thing. It's absolutely essential that the leadership of each of the agencies that are involved in this, which include Defense, which include the Justice Department, State Department, Homeland Security, the intelligence agencies, recognize each other's expertise and (equities ?) and work together constructively in a seamless way.

And the last thing. I mentioned in my opening remarks the extraordinary career professionals at the Justice Department who I had the privilege of serving with, but there's another absolutely marvelous career force that I got to know very well when I was at the Defense Department, which is our uniformed military, which bring extraordinary expertise, not just in --

SEN. LEAHY: And you received a lot of compliments from them. And just for my remaining time --

MR. OGDEN: I'm sorry.

SEN. LEAHY: No, that's okay. My remaining time I'll just put into one area that has been raised by a number of us here. You supervise the 93 U.S. attorneys, the Criminal Division, FBI and so on. Your background has been in civil litigation. Do you feel prepared that you can handle these criminal justice issues effectively?

MR. OGDEN: Senator, Mr. Chairman, I do feel that I can. I have done a lot of work in the civil area, but when I was at the Justice Department, I managed significant criminal policy initiatives. I was in the deputy's office and worked on significant prosecutions. In the Attorney General's Office I met with on a regular basis the law enforcement components with the attorney general and helped manage them. In private practice, I've managed combined matters, which involved civil enforcement and criminal enforcement, working in the antitrust area, for example, in the False Claims Act area, as another example, where typically the matters require management on the criminal and civil side.

So I do feel that I'm qualified to manage the criminal side of the department, in conjunction, of course, with our very experienced attorney general and with a staff which will include very experienced prosecutors in the deputy's office if I'm -- if I were to be confirmed.

SEN. LEAHY: Well, thank you. And I'll -- I have to go to another committee meeting which is taking place right now. I'm going to turn the gavel over to Senator Whitehouse, himself a former prosecutor, but first I'll yield to one of the most experienced former prosecutors the Senate's ever had, Senator Specter.

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

There's a very limited amount of time, so I'd appreciate it if you'd make your answers as brief and responsive as possible.

MR. OGDEN: I'll do my best.

SEN. SPECTER: This is a very, very busy day. We're -- on the stimulus package, in a few minutes, a group of senators, including myself, will be meeting to try to provide major modifications that in the pending bill, so that I'll have to excuse myself then too. And I would again renew my call. I see only two -- my colleagues here on the Republican side -- that my colleagues come, because of the importance of this nomination.

I provided you with a letter dated January 28th, setting forth the oversight authority of the Congress, ask that it be made a part of the record, and ask you at this time if you agree with the conclusions by Congressional Research Service that the Department of Justice is obliged to submit to congressional oversight regardless of whether litigation is pending, it involves both civil and criminal matters, and we're entitled to be provided with documents respecting open or closed cases, including prosecutorial memoranda, investigative reports or the other items specified in that letter.

MR. OGDEN: Senator Specter, I appreciate the question, and I think the subject of oversight is extremely important, and I know you've been a leader throughout your service in making that --

SEN. SPECTER: That's an interesting introduction. If you'd get to the answer, I'd appreciate it.

MR. OGDEN: My answer, Senator, is that I do think that the oversight authority extends to all of the activities at the department. It's also the case that there are substantial equities on the department side in -- with respect to preserving the discretion and the openness of dialogue on pending matters --

SEN. SPECTER: Mr. Ogden, do you agree with what I just cited as to Congressional Research's conclusions?

MR. OGDEN: I think, as the attorney general said, it may go -- it may leave out part of the equation, which is the importance of working together as a matter of accommodation on these matters, to make sure that the Senate's important interest in knowing what's going on is fully --

SEN. SPECTER: I'm going to have to move on. I consider that a non-answer, candidly. If you can give more a direct answer, I'd appreciate it.

Do you think, as a matter of public policy, that the Fairness Doctrine should be reinstated?

MR. OGDEN: Senator, I don't -- I believe that judgment would be largely one made by the Federal Communications Commission. I don't have a particular --

SEN. SPECTER: I'm asking you for your opinion.

MR. OGDEN: I don't have an opinion, Senator --

SEN. SPECTER: Let me move on to another issue.

MR. OGDEN: Okay.

SEN. SPECTER: I discussed this with you in our informal meeting. In the Sun-Diamond Growers case, the Supreme Court unanimously said that in order to have a violation of a gift, there must be, quote, "a link between the thing of value confirmed (sic; conferred) upon a public official and a specific official act for or because of which it was given." Do you agree with that conclusion?

MR. OGDEN: Well, I know that that's the law of the land. That's the Supreme Court's view. I think that it's important that there be a corrupt purpose. With respect to the enforcement of that law, I would certainly follow the Supreme Court's guidance.

SEN. SPECTER: Well, of course you'll follow the Supreme Court's guidance, but my question to you goes as to your judgment as what is an appropriate balance. I think you have answered that one, looking for a corrupt motive as opposed to just an official position.

MR. OGDEN: I agree; that's entirely my view.

SEN. SPECTER: I believe in a woman's right to choose on the issue of choice, but I do believe that there has been quite a bit of scientific material on potential adverse effects after an abortion, although that's within the purview of the right to choose for a woman to balance that.

I was a little surprised to see the scope of your contention in your brief filed in Casey versus Planned Parenthood, where you say this. Quote, "The conclusions from the most rigorous scientific studies are consistent. For the overwhelming majority of women who undergo abortion, there are no long-term negative effects. The few women who do experience negative psychological responses after abortion appear to be those with pre-existing emotional problems. It is grossly misleading to tell a woman that abortion imposes possible detrimental psychological effects when the risks are negligible in most cases."

Surprise me a little. What is the basis for the asserted, quote, "conclusions from the most rigorous scientific studies" to the quotations I just cited?

MR. OGDEN: That was a brief, Senator, that we submitted on behalf of the American Psychological Association, an amicus brief, in which the purpose was to attempt to present the empirical evidence. And we typically would have worked with experts in the -- psychologists and typically would cite the names and identities of those folks, at the beginning of the brief, and would have worked with them to put together the information that, we hope, would be useful to the court.

Those positions were the positions at the time -- I believe it was in the early-'90s -- of the American Psychological Association and of the scientists who participated. And we would --

SEN. SPECTER: Are you making a distinction between that period of time and what might be the conclusions now?

MR. OGDEN: It's certainly possible that the brief presented the evidence, empirical evidence, that existed at that time. And I don't know what the evidence would say today. It may be that studies continue. But the purpose of the brief was to present the views of those scientists.

SEN. SPECTER: I understand. I understand the purpose of the brief. I'm just trying to get the basis for such a broad assertion that the conclusions from the most scientific, rigorous, scientific studies, et cetera, so minimizing it.

MR. OGDEN: Well, Senator, I'm not a psychologist.

SEN. SPECTER: I don't -- I again repeat: A woman has a right to choose. But it seems to me that in that context, it's a pretty extreme statement.

Let me take up, with the red light just now going on, one final subject. You submitted a brief in the case of the American Library Association v. the United States, where we have the issue of the Children's Internet Protection Act, which required public libraries to shelter minors from obscenity, pornography.

And you raised the issue in this context, objecting to the congressional insistence that public libraries affirmatively censor constitutionally protected material.

Well, I don't think Congress was seeking to affirmatively censor constitutionally protected material. What Congress was trying to do was to have a limitation on minors, only minors, as to material which is not constitutionally protected.

Congress cannot inhibit the disclosure of constitutionally protected materials, we can only limit what is not constitutionally protected. So that's a judicial determination. We might be wrong. We use our best judgment as to what is constitutionally protected. And I believe there ought to be very, very wide latitude on the speech issue and on the reading issue, and, when I used to have a law enforcement responsibility, took a very broad view of this.

But what is the -- what is your view on the propriety of Congress seeking to define obscenity and pornography, which we know what the legal definition is, and saying that at least as to minors, you can't show it to them if you're getting federal funds in a library?

MR. OGDEN: Well, I think in -- I agree I think and would associate myself with your remarks entirely on that, Senator. I think, as a preliminary matter, of course protected materials, constitutionally protected materials as to adults need to be -- need to be respected by the law. But Congress does have broad power to protect minors from material that is obscene as to them. The court has recognized that. And I think that power's entirely appropriate.

SEN. LEAHY: Senator Whitehouse.

SEN. SHELDON WHITEHOUSE (D-RI): Mr. Chairman, I will yield my time -- since I'm going to be conducting the hearing and am here through to the bitter end -- to the distinguished senator from Wisconsin.

SEN. RUSS FEINGOLD (D-WI): Thank you, Mr. Chairman.

Mr. Ogden, welcome. I really appreciate our meeting last week. You have a very big job ahead of you. I'm grateful to you and your family and for your willingness to take this on. And from what I know of your record, you are obviously eminently qualified for this job, having worked not only at the department in the Clinton administration but also at the Department of Defense.

Before I get into my questions, is there anything else you wanted to add about the brief with the American Psychiatric Association? Did you --

MR. OGDEN: Well, I appreciate the opportunity. I guess the only point I would say about the brief that we did there is that there -- and with the library association brief that Senator Specter referenced -- I was representing a client as a lawyer in private practice.

As the chief justice said when he was before this committee, a lawyer in private practice takes his -- does not sit in judgment on his clients. His job's to present their views as persuasively and appropriately as possible. We did that with the scientific evidence in the American Psychological Association Brief. That wasn't my view. That was the view of the association. And similarly, with the librarians, they have a strong view about the need to be free from censorship. And they objected to that law. The Supreme Court ruled otherwise.

Of course, as counsel of the United States, my job will be different. It will be to represent as aggressively as possible the position of the U.S. And that's what I've done. I have a record of doing that.

SEN. FEINGOLD: Thank you. When Attorney General Holder was here, I talked with him about the need to look very closely at what's happened at the department over the last eight years and try to make sure that people engaged in inappropriate and even illegal action don't, in effect, have the last laugh because of what they've left behind. He answered that one of the things he intends to do is what he called undertaking a damage assessment to understand how the department has been harmed by the things that the inspector general reports over the last few years have uncovered.

And I imagine that a lot of the responsibility for conducting this assessment and making recommendations on what to do will fall with you. You worked on the transition, so perhaps you have some sense already in how that assessment should be done. Can you give us a little idea of what your -- what your plans are on that?

MR. OGDEN: Well, thank you, Senator. I do think it's extremely important for us to recognize that there have been a number of things that have happened in recent times which have caused concern about the department.

I think we need, as a primary matter, to restore confidence. I think Attorney General Mukasey and Deputy Attorney General Filip have done an admirable job to begin that process. And the one thing I learned in the transition -- the first thing I learned was how seriously they take these issues and how much they have taken on themselves in the last -- the short time they've had to begin to address it.

I think we need to continue that work. I think we need to meet with the senior career people. We need to meet with the inspector general to try to understand where the department is. It will be imperative that we take every step to ensure that inappropriate influence can't come from the White House, that we can't get inappropriate political impact. We'll need to assess the damage, if any, that's been done to the career ranks I talked about; make sure that we are -- we have the right decisions and the right practices being made with respect to hiring; make sure that prosecutorial decisions are insulated from improper influence.

So it'll be a matter of talking with the people who've looked at these things, who've experienced them, and then responding appropriately.

SEN. FEINGOLD: Thank you. Another issue I discussed with the attorney general at his hearing was the federal death penalty. And I was pleased that he agreed that the department should make public data on the administration of the federal death penalty, information that we haven't really had since Attorney General Reno issued her comprehensive report in the year 2000.

I've heard that some people have raised concerns about your attitude about the death penalty, and they even suggested that your representation of some death row inmates should be held against you. That work is essential and among the most challenging and important work that a lawyer can undertake, in my opinion. So I think you're to be commended for this.

But let me just ask you point-blank: As deputy attorney general, would you let any personal views you have about the death penalty affect your willingness to enforce the law?

MR. OGDEN: I would not, Senator.

SEN. FEINGOLD: On the other hand, if a U.S. attorney wanted to speak directly with the attorney general because he or she felt that the decision to seek the death penalty in a particular case was a mistake, would you prevent that conversation from taking place, as one of your predecessors did? How would you handle that kind of request?

MR. OGDEN: Well, I think it's -- it is imperative that we get the full experience of the United States attorney, and, for that matter, the (line ?) attorney who's handled the case. The critical thing, I think, for all important decisions -- and, indeed, probably all decisions -- is that we get all the input from the experienced people who have the direct responsibility for the matter and make sure we fully understand their views before any decision is made based on the matters within their responsibility. So we would certainly encourage those kinds of communications and make sure that there's a full flow of that expertise.

SEN. FEINGOLD: All right. Thank you for that answer.

I am impressed by the support your nomination has received from lawyers who actually served in the last administration, including Larry Thompson, Rachel Brand, Peter Keisler, Daniel Price (sp), Stuart Gerson, Daniel Levin, John Bellinger and Reginald Brown.

I was struck particularly by how many of their testimonials remarked on your willingness to listen to opposing viewpoints. I'd like to hear from you whether you think that quality's important to being a successful deputy attorney general and why.

MR. OGDEN: I think it's critical to being successful in almost any walk of life, but, I think, more than anything in a leadership position like the position of the deputy attorney general. It is absolutely crucial that we make the best possible decision, that it take into account the viewpoints of all people who have relevant views to afford.

Typically, the problems that reach the deputy attorney general are the ones where there are differences of opinion. And I think it's critically important that we take full account of the people who have all varying views in order to try to reach the best decision.

So I think it is critically important to have an open mind, to consider views that otherwise might not be your approach and to factor that into your thinking. I'm very proud to have the support of the people that you speak of. They're people I've worked closely with in my career, and it makes -- it is something that's extremely important to me, to have their respect and their support.

SEN. FEINGOLD: Mr. Ogden, I greatly look forward to working with you.

Thank you, Mr. Chairman.

SEN. WHITEHOUSE: Next is the very distinguished senator from Utah, a former chairman of this committee and the person whose keen interest in the Department of Justice actually provoked the first letter that created the firewall that has been such a source of attention, the firewall between the White House and the Department of Justice.

Senator Hatch?

SEN. ORRIN HATCH (R-UT): Well, thank you. Thank you, Mr. Chairman.

Mr. Ogden, welcome to the committee. I have great respect for your academic record. And I'm one of those senators who wants to be supportive of any president as he or she builds his or her executive- branch team.

But I do have some real issues and concerns that I'd like to raise with you.

One area that really concerns me is whether you will be committed to enforcing laws that you have argued for so many years to be unconstitutional.

And let me be clear what I'm looking for here. I want to know your own views, if you will, the views you will be taking into the leadership of our Justice Department, if you personally disagree with the views and approaches that you have advocated in court so consistently for so many years. I think now would be a good time to say so.

For example, you argued in 1989 that the law requiring producers of sexually explicit material to keep records about the identity and age of performers was unconstitutional. I was one of the authors of that bill. A revised version of that law is not only still on the books today, but a few years ago Congress extended its reach as part of the Adam Walsh Act. I had a lot to do with that.

Now, how can we believe that the Justice Department will properly enforce this law and, if necessary, defend its constitutionality when you have said for 20 years that it is unconstitutional?

MR. OGDEN: Well, Senator, first of all, I certainly agree and the courts have made clear that the Congress has the power and the government has the power to require that those records be kept. That law ultimately has been upheld. It was initially struck down. I think there were problems that the courts identified and then I think Congress corrected many of those problems.

I believe it was struck down in my initial -- in the lawsuit that I brought on behalf of media organizations that were concerned about the way in which it was done, not the fact but the way. And the court agreed that it could be -- that it should be fixed. The Congress fixed it. And I think that the law is constitutional as it stands today.

SEN. HATCH: Thank you.

Yesterday I received an article about your nomination that appeared on XBIZ, which is the news agency for the pornography industry. It states, quote, "For the adult entertainment industry, the pick could constitute a strong one, considering Ogden's record in representing companies over First Amendment rights and obscenity cases," unquote. Now, the article also quotes the executive director of the Free Speech Coalition, which is the porn industry's legal team, hailing your nomination and saying that it will be, in her words, "refreshing."

Now, it appears that the porn industry does not believe that your own views differ from the views you expressed on their behalf over the years.

Now, Mr. Ogden, let me ask you about your brief for the ACLU and others in the Knox v. United States case. After the first Bush Justice Department had obtained a conviction of Stephen Knox for possessing child pornography, the new Clinton Justice Department reversed course and asked that his conviction be reversed; that incident based on their new interpretation of the child pornography statute that narrowed its application and weakened its enforcement. Now, the U.S. court of appeals rejected that new position -- not once, but twice.

This body, the United States Senate, unanimously rejected this reinterpretation of the child porn statute -- not once, but twice. Even President Clinton wrote Attorney General Reno, saying he agreed with the Senate about the law's proper scope.

Yet you filed a brief for the ACLU and others on the side of Mr. Knox, for the position that all three branches of the government -- Congress, the courts, and the president -- rejected. Seven of us on this committee today were in the Senate in 1993 and voted to reject the position you embraced in that particular case. A few other members of this committee were in the House at the same time, and likewise voted to reject the position that you advanced or embraced.

In your brief, you said that the position that we endorsed, Democrats and Republicans alike, about the scope of this child porn statute would be a, "step backward," all the way back to the 1960s. Now, is that the kind of approach the Justice Department will take toward enforcing the child pornography and anti-obscenity laws in the new administration? Are you going to take it upon yourself to give the laws new twist, try to weaken their enforcement from what Congress intended to make it -- from what Congress really intended, to make it harder to prosecute those who contribute to the exploitation of women and children by trafficking in obscenity and child pornography?

So I need to have your answers on that.

MR. OGDEN: Well, senator, I appreciate the question and the opportunity to address the Knox brief and the related issue.

The first thing that I would just like to make very clear is that I believe that the child pornography laws, the laws against child pornography, are extremely important laws. I think that child pornography is abhorrent.

I think the effort to exploit -- the exploitation and the harming of children is abhorrent, and it deserves and the full sanction of the law, and that is my strong view.

The -- I did not agree, even at the time it was filed, when I was not in the government, with the Justice Department's brief that you refer to. It took a very extreme view, I agree, of the law. I understand why the Senate and the House rejected it.

The brief that I submitted on behalf of the ACLU, the American Library Association and the American Booksellers Association, on behalf of librarians and booksellers, made a different point. It made a point that I understand the Senate and ultimate -- that this body disagrees with and one that the court disagreed with. But it was a point that was important to them. They wanted just to know, have a clear line as between what was illegal and what was legal. The court decided not to accept that view, but it wasn't the view -- the extreme view that I myself rejected -- that the Justice Department brief took.

I fully intend to, if I'm fortunate enough to be confirmed, aggressively enforce these laws. I have a record of doing so, as the assistant attorney general for the Civil Division. I defended as aggressively as I could the Child Online Protection Act. I defended the Child Pornography Act at the time and did so with full support.

SEN. HATCH: I appreciate that.

(To the chairman.) I'll be a little bit over on this question.

In your brief in Roper -- thank you, Mr. Chairman -- in your brief in Roper, you said that 16- or 17-year-olds are not mature enough to be held fully accountable for their decision to kill someone. But in your brief in Hartigan versus Zbaraz, you said that even a 14-year-old girl is mature enough to weigh the pros and cons, risks and benefits, and can make the decision to have an abortion by herself without even notifying her parents.

Now in each brief you said that the social science research proved your point. Now, is social science that unreliable that it produces such contradictions? And how can you advance the two separate positions?

Now I understand that as an attorney, you have an obligation to try and do the best you can for your client, but still it seems to me they're very inconsistent positions.

MR. OGDEN: Senator, I appreciate the question, and I also appreciate your recognition that I was acting in those cases as a lawyer for different clients.

In the Casey case -- or Hartigan case, I was representing organized psychology, the American Psychological Association, and doing my best to present with -- in conjunction with the experts, the psychologists, the view of organized psychology on that issue.

In the later case -- much later case -- about, I believe, 14, 15 years later, I was representing Mr. Simmons, a person who had committed a terrible, heinous crime as a minor. And the question was whether the death penalty could be imposed.

I think the positions -- I understand the tension you identify. I think the positions actually can be reconciled in this sense: In the death-penalty case, nobody was arguing, and we didn't argue, that Mr. Simmons should not be fully accountable for his crime. He could get life in prison; he could be criminally convicted. Nobody was suggesting that he was not responsible for that decision.

The question was whether, as a society, we're prepared to impose the ultimate penalty of death on somebody who was a minor when they committed the crime. In the other case, the question was, again, whether a mature minor could make a decision that could be respected by the courts. The view of the psychologists was that many of them can. And that was the point that we made.

So I understand the tension that you identify. It was for different clients, and I think the issues were slightly different.

SEN. HATCH: Mr. Chairman, I may -- I may not be able to return. Can I just ask one more and --

SEN. WHITEHOUSE (?): Mr. Wyden?

SEN. HATCH: Do you have any objection, Senator Wyden, if I -- could I ask one more question?

SEN. WYDEN: Absolutely.

SEN. HATCH: I'm going to try to return, but I may not be able to.

In your brief for the ACLU in the Knox v. United States case about child pornography -- and, as you can see, I'm one of the authors of these bills, so I take great interest in this. And I take great interest in the Justice Department, and this position that you're about to undertake. But in that case, Knox v. United States, you said judges should stick to the specific objective language of a statute and should not use their own subjective judgments or evaluations.

And yet in briefs you've (filed ?) and an article you've written, you argued just the opposite about the Constitution. You urged the Supreme Court to reconsider social context to reevaluate the Constitution based upon the latest social-science research, to decide cases based on perceptions of the real world and a judge's compassion for vulnerable groups.

I guess what I'm asking is, which is it?

MR. OGDEN: Well, Senator, it is, number one, that the language of a statute or the Constitution has to be the starting point. It's critically important. That's where the Congress and where the founders put their emphasis and attempted to create law. So it is affirmatively the first.

I think there is a(n) important role for social science evidence and indeed evidence in helping apply the law. And in particular in constitutional interpretation, which is what some of the remarks I think you referenced were directed to, it is very frequently very important in deciding whether a constitutional norm established by the language has been satisfied or violated, and specifically, whether there is a sufficient justification, whether in fact the critical objectives that Congress may be seeking to achieve are actually achieved by a statute. That's a question judges have to decide often in deciding whether some -- a bill or law that restricts rights in certain ways will stand.

So what I've tried to say -- and I've always attempted to be clear about this, although in a long career, sometimes you can be a little fuzzy in what you say from time to time, and I recognize I may have been --

SEN. HATCH: Really?

MR. OGDEN: Well, I certainly am capable of it.

SEN. HATCH: We up here are very capable of -- (laughter) --

MR. OGDEN: I appreciate that, Senator. But what I've attempted to say and what I've firmly and strongly believed and what I think I said to Senator Sessions once long ago when we had a decision about this, is that I believe firmly constitutional principles are fixed. I do think that courts need to look to the realities of evidence in order to decide how they apply in particular cases. And I hope that that's -- I hope that my views on that are clear.

MR. WHITEHOUSE: Senator Wyden. Thank you for accommodating our distinguished colleague with his extra time. You are recognized.

SEN. RON WYDEN (D-OR): Thank you, Mr. Chairman.

Welcome, Mr. Ogden. Along with Senator Whitehouse and Senator Hatch, I also serve on the Intelligence Committee, and so we very often get into the area where intelligence policy and judicial policy intersect. I want to ask you some questions specifically with respect to interrogation.

The issue with respect to interrogation, I think for most Americans, and it is extraordinarily important to me, comes down to how you handle the human ticking time bomb, the person who may have that information that securing it may mean literally saving thousands and thousands of American lives.

I have been able to get the FBI on record saying that with their approaches, it is possible to secure the information, through interrogation of these human ticking time bombs, without torture.

Are you familiar with that? And do you largely share the views that interrogation techniques that are used by the FBI, used by the law enforcement community, allows us to deal with these kinds of individuals, who clearly represent a great threat to our country, but we can protect our nation without resorting to torture?

MR. OGDEN: Senator Wyden, I am familiar with that, with that view of the FBI. I also think that view is embodied in the Army Field Manual. Based on what I know, at the present time, I believe it to be true. And obviously I've not been briefed, in some time, in a classified setting, about issues like this.

Obviously I intend, if I am fortunate enough to be confirmed, to learn everything I can about the most effective ways of addressing that urgent problem: the national security, protecting Americans from terrorism, dealing with these urgent crises.

Nothing could be more important. And nothing could be more important than to keep an open mind about evidence and facts. But I certainly -- that's my understanding. And it's my understanding that that's the view of others who have studied this.

SEN. WYDEN: The second area I want to ask you is related to that. And I appreciate your answer there.

I'm sure you're familiar with the Bybee amendment. This was the Department of Justice legal memo that argued that inflicting physical pain short of organ failure didn't constitute torture.

If someone had brought you that opinion, how would you have reacted?

MR. OGDEN: Well, I think, I would have reacted with great surprise. I do think the opinion and its interpretation of federal statutes really is very difficult to square with the language there. And I think it also was difficult to square with basic values.

So, certainly there would have been big questions; there would have been big pushback. And I think that if I -- certainly if I'd been in the position of the deputy attorney general and I'd had an opportunity to see it, I would have objected strenuously to it.

SEN. WYDEN: So when you say there would have been a lot of pushback, you would have told the fellow, or woman, whoever it was who wrote it, to go back and redo it? You would have taken it to others in the department? How would you have pushed back?

MR. OGDEN: I would have done just -- I would have done just those things. I would have questioned the assistant attorney general closely on his reasoning. I would have wanted to get a full explanation as to his thinking about this and where he was coming from and the basis for it. I'm sure, to the extent I wasn't satisfied with that explanation and it didn't produce a change, I would have brought in others who were expert in the matter and sought their views and tried to get a dialogue going in order to get to the right answer.

My experience is that serious legal issues, if you push them, if you bring smart, good lawyers, people of goodwill, into the discussion, people with expertise, you can avoid serious mistakes. And I think that that process would have done that.

SEN. WYDEN: I want to ask you a couple of questions with respect to the public's right to know. Certainly those of us who serve on the Intelligence Committee, again, see what the balance is really all about. For example, I feel very strongly about protecting operations and methods. That's absolutely key to ensuring that we protect these courageous people who gather intelligence and we protect our country with the information they're getting.

At the same time, I think that there are flagrant abuses of the classification system,. In fact, in a lot of instances I think it's more for political security than national security. And I think we've got to expand the public's right to know and that it's possible to do that while at the same time fighting terrorism ferociously.

So my first question here involves the special court, the Foreign Intelligence Surveillance Court, that provides judicial oversight over sensitive intelligence activities. Now, this court does most of its work in secret. Most of its decisions are classified. Again, in terms of trying to strike a sensible balance, it seems to me it makes some sense to classify routine warrant applications that could contain sensitive information about intelligence sources.

But there are a lot of important rulings that go to the meaning of surveillance law, and I think that a lot of those kinds of judgments really could be redacted and declassified so that the country could be brought in in a more informed, a more complete way to these national- security debates.

And Chairman Rockefeller and I have written to the attorney general. We've written to the chief judge of the court. We've gotten a pretty encouraging response from -- certainly an interesting response from the chief judge. But we haven't gotten a response from the attorney general.

If you are confirmed, would you be willing to look at these kinds of declassification issues anew and try to come up with a fresh policy that ensured that, while documents are classified when it deals with operations and methods and sensitive matters, that more of the issues relating to legal judgments and matters involving national-security policy can (meet the ?) public demand?

MR. OGDEN: Senator, I absolutely will commit to take a fresh look at this issue if I'm confirmed. There are two great imperatives here. One is the imperative of protecting the national security. And as you say, Senator -- and you're a leader in -- been a leader in this area -- protecting the real secrets, the things we really need to protect, is critically important. At the same time, there's an imperative for open government and to let people know what's going on to the extent we can, consistent with the first. And I will certainly look at that and see if there's more that can be done.

SEN. WYDEN: Can I ask one other question, if I might, Senator Whitehouse? I want to go out on --

SEN. WHITEHOUSE: Okay, Senator. And then I think we'll probably take a five-minute recess, since the witness has been here now for well over an hour and a half, to allow him to refresh himself. And then we'll continue with Senator Sessions.

SEN. WYDEN: Senator Sessions, is that all right, if I ask one additional question?

SEN. SESSIONS: Sure. Yeah.

SEN. WYDEN: Thank you.

I had one question that tells me --

SEN. WHITEHOUSE: Make it a good one. (Laughter.)

SEN. WYDEN: I'll make it a short one. Can't guarantee goodness.

One question that tells me a little bit about your judicial philosophy involves the tobacco issue, and particularly the tobacco industry settlement by the top Bush administration officials.

In that particular case the recommendation of the career DOJ prosecutors regarding the proper size of the settlement was overruled by, in effect, the Bush administration, you know, political appointees.

I'd be interested in knowing whether you're troubled by the case, but particularly how do you feel about having recommendations of career prosecutors tossed out that way?

MR. OGDEN: Well, I'm not -- Senator, I appreciate the question. As you know, I was a participant in initiating the tobacco litigation in 1999. I wasn't a party to and I don't know what the specific communications were within the department. I don't know for a fact that recommendations were disregarded.

I do know that the lawsuit has been pursued in the Bush administration, continued to be litigated, and has for this full eight-year period.

Obviously the important, I think, part of the question, the end of your question, when you focus on the -- what do you do about recommendations from career prosecutors? They're incredibly important. And I think that the people who are on the ground and who make these recommendations and who have the expertise are the people you need to start with.

When we brought the lawsuit, we relied on recommendations from the career people as to what the right thing to do was. And that was really the basis for the decision, was a cross-departmental recommendation. So I think you've got to start with that. And I think it's critically important.

SEN. WYDEN: I look forward to supporting your nomination.

Thank you, Mr. Chairman, and I hope we didn't lose Senator Sessions because of --

SEN. WHITEHOUSE: No, I think once the senator was made aware that there would be a five-minute recess, he took advantage of the break himself. We will stand in recess for five minutes and reconvene at two minutes before the hour.

MR. OGDEN: Thank you. Thank you.

(Recess.)

SEN. WHITEHOUSE: The hearing will come back to order, and the distinguished senator from Alabama, a former United States attorney himself, is recognized.

SEN. JEFF SESSIONS (R-AL): Thank you, Mr. Chairman.

I just really appreciate Senator Wyden asking some good questions about terrorism and those issues. But I do want to just say something, Mr. Chairman, I feel strongly about, having been involved in this committee and the Armed Services over these issues for some time.

Not one single person held by the United States military was ever waterboarded. The people who abused those prisoners in Abu Ghraib were found by the military. They announced it to the world; they prosecuted them. Many of them went to jail for their abusive activities, which were not in any way connected to an interrogation.

And a final full review of what happened in Guantanamo concluded that one prisoner possibly -- the acts on one prisoner may have constituted torture, because they used six or seven different techniques. Any one of them would be okay, not constitutionally defective; but all together, they constituted enough stress on the individual that it made it improper.

So I just want to defend the United States military. We've gone and we've somehow got it in our minds that we've had a massive violation, or some of the most dangerous prisoners the war -- we've ever seen in any war -- have been damaged. And that's just not so. You and I talked about that.

SEN. WHITEHOUSE: And we agree on it, Senator.

SEN. SESSIONS: Thank you. And I do think, and do you not agree, that the FBI, whose jurisdiction is domestic law enforcement, should and would naturally adhere to different standards of enforcement and inquiry and interrogation than might be necessary for a prisoner of war, a person who -- a terrorist who'd been captured in a military or terrorist attack against the United States?

MR. OGDEN: Senator, I certainly agree that it may be that different interrogation methods are appropriate in different settings. That's one of the things, I think, it's very important that the government look at very closely.

I haven't been exposed to the classified --

SEN. SESSIONS: Well, but look, look.

MR. OGDEN: And I think that may well be --

SEN. SESSIONS: Well, look, the FBI; one of things, I think, we learned, from 9/11, do you not agree, that we cannot treat attacks on the United States, by a combatant, legal or illegal combatant -- these were mostly -- they were all illegal. They don't get the same protections in a wartime situation that an American gets, who's investigating -- being investigated for robbery or dope dealing or even murder.

MR. OGDEN: I do agree with that.

SEN. SESSIONS: Mr. Ogden, I really, you know, I enjoyed talking with you. And I think you're a good person. And I think you have the ability to do this job.

MR. OGDEN: Thank you, Senator.

SEN. SESSIONS: But I've got to tell you, I just worry about some very important issues to me.

One, let's take this American Library Association brief that you filed. Was that on behalf of the ACLU?

MR. OGDEN: As I recall, the ACLU was one of the clients. Others were the Library Association, the Booksellers Association.

SEN. SESSIONS: Who paid your fee?

MR. OGDEN: You know, I think, it's -- I don't know how long -- 15 years ago. And I just don't remember.

SEN. SESSIONS: You don't remember who paid your fee.

MR. OGDEN: I don't recall. I don't recall.

(Cross talk.)

Yeah, you'd think that would be the most important thing. But I don't recall. And I don't even know for sure whether that was a brief that we were -- it might have been a pro bono brief. It's possible. I don't recall.

SEN. SESSIONS: Well, basically the question was, there was a lot of consternation that libraries and the American Library Association was taking the view that they could not put a screen on the computer stations, in the library, that would block Internet hardcore pornography, even if children might have access to it, because of the Constitution. And I always thought that was not a sound view and was amazed by it.

So finally the United States Congress passed a law that said, well, if you continue to do that, you're not getting federal money.

So you went -- you represented, along with the ACLU, the Library Association -- and contested that and said that the Library Association was right and eventually lost in the Supreme Court. So my first question is do you accept the ruling of the Supreme Court and would you follow it even if you didn't agree with it?

MR. OGDEN: Absolutely. And if I may just make one point of clarification, because I realize I misunderstood, in that case I represented, I think, the Cleveland Public Library and some -- and some library science Ph.D.s who were -- who had ideas about how libraries should be run. I don't believe the ACLU was a client in that matter.

SEN. SESSIONS: And I guess my next question is what do you personally think about this? It would trouble me if that's your personal view, that the Constitution would say that a library was required to provide computers that would enable even minors to see the most hard-core pornography.

MR. OGDEN: I appreciate the question, Senator. I think it's quite important that children be protected from exposure to material that's obscene as to them. I think that's a different standards than what is obscene as to adults. I think it's appropriate for parents to want to have protections with respect to those materials.

I think what's very important -- of course, I respect the librarians' view on what they need to do.

SEN. SESSIONS: Well, but the librarians didn't agree. The librarians said we have to put this out and any child can watch it if they choose. And that's what led to the conflict, did it not?

MR. OGDEN: Well, my -- and I -- we're going back a ways, and I don't remember the details. But I think the situation was they were concerned not about that principle but about the effect of the particular rule on adults' access to material. Often that's their concern.

I think we can work hard to make sure children are protected and adults have appropriate access, and I think that the courts have so ruled and I entirely agree.

SEN. SESSIONS: Well, it was a big issue and it was fought out here. And your side lost on that question.

MR. OGDEN: The side that --

SEN. SESSIONS: I noted that -- and you know, you were a young man and were honored to be selected by a justice of the Supreme Court to be his law clerk, Justice Blackman. And Justice Blackman, perhaps unwisely -- and it's perhaps a good example -- opened all his records, including your memorandum to him and -- which I think is cause for a pause. But that was his decision and he did it.

In one of your memos, and I raise this because of some of the pornography positions you've taken and some of your support for activist court decisions, you said, I think, in the case before him, I think this is a very important principle. It will prevent the, quote, "morality," close quote, based type of regulation at issue here from being employed, to stop the advertisement of a host of products, which the, quote, "moral majority," close quote, types or their successors in interest disapprove. If they are deprived of the offensiveness excuse, they will have to come up with more creative excuses.

Now, millions of Americans have moral standards. Most people overall have moral standards. In Lawrence v. Texas however, Justice Kennedy flatly stated, as I recall it, that morality couldn't play a role in the Congress passing legislation.

How do you feel about that? And does this statement you made, as a young lawyer, to the court, how does that -- is that still your view?

MR. OGDEN: Well, it certainly is not. And I appreciate your asking me about it. And I also appreciate your prefacing your question with the observation that I was a young lawyer, which I no longer am. When I said those things, I was 29 or 28 years old. And I regret those remarks. And I'll tell you why I do. I regret it for two reasons.

First, I don't think it's sufficiently respectful of people and of opposing viewpoints. And certainly if I got a memorandum like that from a younger lawyer today, I would take him aside and say, this isn't appropriate. You need to be more respectful of people. And you need to understand that people have legitimate points of view and that moral views are held sincerely and perhaps more sincerely than any other views and are worthy of respect.

That's certainly how I view it today. That's what I would tell my children. That's what I would tell younger lawyers.

(Cross talk.)

SEN. SESSIONS: Justice Kennedy's question, my time's up, but was really that morality couldn't provide a basis for congressional statute. And I guess thousands of years have taught us that certain things tend to be -- have bad consequences, and certain things tend to good, and that Congress periodically considers those things. And we may not have the American Psychological Association before us, that moment, to divine what's right and what's wrong. We have to decide.

So maybe I'll follow up with a written on that. I'd like to know a little bit more about it, because I don't feel like you should be disqualified for representing pornography interest and taking positions that I don't agree with, if you'll follow law and you understand some of the basic principles. I think that that would not disqualify you.

I have a -- we'll have a second round? Is that right?

SEN. WHITEHOUSE: Of course.

SEN. SESSIONS: All right. (Inaudible).

SEN. WHITEHOUSE: Just let me now recognize Senator Kaufman.

MR. OGDEN: May I -- Mr. Chairman, may I just make a brief response, or would that be out of order?

SEN. WHITEHOUSE: No, you're welcome to, and then we'll turn to Senator Kaufman, who has (been waiting ?) patiently.

MR. OGDEN: I just wanted to express -- I'm sorry. Senator, if I may just respond briefly to Senator Sessions --

SEN. WHITEHOUSE: Be my guest. Sure.

MR. OGDEN: Thank you.

I wanted to express my appreciation to you, Senator, for your remarks and for your questions. And I certainly understand the reason that you would ask about these things. I'll be very pleased to respond, either in your second round or in written form, to your questions on that, on that subject.

SEN. EDWARD KAUFMAN (D-DE): Mr. Ogden, congratulations.

MR. OGDEN: Thank you, Senator.

SEN. KAUFMAN: And really thank you and your family for taking on this new position in public service.

However, I must say, looking at your record -- extensive record in the Justice Department, this has got to be a wonderful opportunity for you to use the things you learned to try to do something about some of the incredible problems the country faces. So thank you for coming, and I'm sure you're -- you will do a good job.

Just to follow up, can you point to some things in your record that would reassure us how you deal with children and families?

MR. OGDEN: Well, thank you, Senator, for the question. I can assure you and the committee that issues of children and families have always been of great importance to me.

One of the things I'm the proudest of in my legal career is a brief that I wrote in a case called Maryland against Craig, which I wrote also for the American Psychological Association, in which the position of psychology there was to explain the way in which a direct confrontation between a victim of child sexual abuse and the alleged abuser in court would be psychological damaging -- psychologically damaging and would -- actually tends to make their testimony less accurate. And we argued that they should be allowed to testify in these important criminal matters by closed-circuit television.

And that brief was something that the court took very seriously, and it helped them decide that issue. I think that was an important -- important to me.

In the government, I worked as I said, to defend major child pornography and child -- obscene as to children legislation, did so aggressively, and I'm proud to have the support of the National Center for Missing and Exploited Children, who worked with me during those years, I think in large part because of the work that I did on those cases.

SEN. KAUFMAN: Good. And if you get confirmed, what are going to be kind of your top priorities as deputy attorney general?

MR. OGDEN: Number one, national security. We need to ensure that the American people are safe, that terrorism is combated as aggressively and as effectively as it possibly can be.

Number two, issues related to the rule of law: restoring nonpartisanship, ensuring the protection of criminal investigations from inappropriate influence, protecting career hiring from inappropriate influence, dealing with transparency issues like some of those that have been discussed, all of which I group as a -- in the rule-of-law and -- bucket.

And third, doing everything we can do -- recognizing that we have budgetary limitations and recognizing the imperative of protecting the national security -- to restore some of those core historic functions of the department to the full effect, including criminal law enforcement in a range of areas, financial crime, violent crime, civil rights and a range of other priorities that have been ignored.

So I guess I would say those, going in, are my priorities. But I -- you know, we'll sit down with the attorney general, we'll work with this committee, to try to refine those and just do the best we can.

SEN. KAUFMAN: In the 1990s we did a great deal of help to state and local law enforcement. And then, as a result, I think -- affected the -- caused the -- a drop in crime. Do you have any thoughts about what you'll be doing, coming in as deputy attorney general, to try to get back to some of the programs that worked in the '90s?

MR. OGDEN: It's absolutely critical that we restore the funding programs that supported state and local law enforcement, that supported -- that created, really -- a very strong working partnership between the Department of Justice and state and local law enforcement. And grants and the financial support of those programs is a critical part of that.

We've fallen off there, and I think we need to find a way to restore it, because it worked. I mean, you just have to -- all you've got to do is look at the statistics, talk to the experts at the state and local level. Those programs work, and I think we need to fully fund them.

SEN. KAUFMAN: And I think we all agree the number-one priority should be national security. But there seems to be a kind of -- you know, in the shift to do national security, maybe we haven't done as much as we've -- would in the other areas you talked about, which are crime and finance.

Could you just talk a little bit about the -- how we get back to, you know, doing national security but also fighting crime in the Department of Justice?

MR. OGDEN: I think we need to look -- thank you, Senator; I could not agree with you more that we have to find a way to do both. We have to find a way to protect the national security. We have to find a way to do it in a way that respects the law and the constitutional rights, of course, but we've got to do it aggressively and absolutely effectively.

And we've got to find a way to address these other critical priorities, the ones you've identified, in addition, civil rights, in addition, violent crime. And how you do it, I think, you've just got to -- you've got to use common sense.

You've got to bring in the people who are running these programs. You've got to figure out where you can save, the things you can do to get the most bang for the buck and the things you're maybe doing that get the least bang for the buck, and try to put the effort on the things that work. And that's an inclusive process that's got to be driven from the top, but has got to take its input from the people who are on the ground doing the work.

SEN. KAUFMAN: You know, there's a lot of talk, in the popular press, about financial -- people committing financial crimes or alleged financial crimes. And so, you know, sometimes I think it's dismissed by people, that when elected officials talk about it, it's purely political. But I can tell you, talking to my colleagues, it cuts right from the gut.

People are really upset with the fact of what went wrong on Wall Street. (Inaudible) -- the fact that the number of financial crimes that we dealt with, in 2008, were considerably less than we dealt with in 2001.

Do you have any thoughts on how the Justice Department, and I don't want to go back. I want to look forward, I really do. I think, as you know, we have an incredible financial crisis.

We've got to look forward. But I think part of looking forward, to most people, is how we go back and find out that the ne'er-do- wells, who helped us get to where we are today, and not in any pejorative way or any prejudiced way or anything else.

How do we -- do you have any thoughts about how we can go back and kind of deal with some of the crimes that were committed that led to this incredible financial crisis we have?

MR. OGDEN: Well, I think, we need -- first of all, Senator, I agree with you entirely that if crimes were committed, and to the extent crimes were committed that contributed to the situation that we're in today, there needs to be an appropriate and strong law enforcement response.

That will require resources to be devoted to it. I think we'll need to figure out the most effective way to do that. That's something, I know, the attorney general is committed to. If I'm confirmed, it's something I will be committed to. I think we'll need to talk to the U.S attorneys.

We'll need to talk to the FBI. We'll need to, we'll need to coordinate with state and local law enforcement, because they may have an important role to play here, to figure out what the most effective approach is and to make sure that people are held accountable if they committed crimes.

And I would say that serving jail time may well be an appropriate result that could be a big deterrent in the future, because that's what this is about.

SEN. KAUFMAN: And when you get (down/done ?) there, could you keep the committee informed? And I would personally like to know what it is we're doing -- maybe not -- when you have the whole answer.

But I just really think this is an important part of the healing that has to go on in the country. People are really hurting, and I think we need some kind of program to try to -- they feel that people are getting away with murder, or something short of murder, and anything you could do in this area in a timely manner, realizing you have other priorities, I would very much appreciate it.

MR. OGDEN: Senator, I appreciate that. And absolutely, I think, in the setting of priorities, that is an area where there ought to be an open dialogue with this committee.

SEN. KAUFMAN: Thank you. Good luck.

MR. OGDEN: Thank you. Thank you very much.

SEN. WHITEHOUSE: The distinguished senator from Arizona, Senator Kyl.

SEN. JON KYL (R-AZ): Thank you, Mr. Chairman.

Welcome.

MR. OGDEN: Thank you.

SEN. KYL: You -- and I'm sorry I wasn't here for some of the earlier questions, but I don't think they'll be too duplicative.

I understand you wrote a brief that opposed parental notification for 14-year-olds, and that one of the arguments you made in that brief is that girls that age had the capacity to make an abortion decision. If you believe that 14-year-old girls have that capacity, then do you also believe that they do not require protection under child obscenity laws?

MR. OGDEN: Well, first of all, Senator, I certainly believe that they deserve protection under child obscenity laws. So if I could start with the end of your question: I believe that the laws that protect minors from material that is obscene as to them -- and that's a different category of material as to what's obscene as to adults -- are constitutional, and they're appropriate, and they need to be enforced.

The brief in question was filed, I think, in 1990 or something like that, in that time frame, on behalf of the American Psychological Association, which was my client and hired me to file briefs in that case and others.

The purpose of those briefs, and the way we did it, was to sit down with experts who the psychologists' association identified for us, who were expert in the relevant area. They helped us identify what the position of organized psychology was on these questions and to present the empirical evidence, the studies and the research, that supported the positions that were taken.

SEN. KYL: Well, so let me -- just to be --

MR. OGDEN: And that was the view -- that was what we did there, and that's what that brief was.

SEN. KYL: All right. You understand our time is kind of constrained here; if you could get to the point quickly.

MR. OGDEN: I'm sorry. I apologize.

SEN. KYL: So you would advocate a different standard, then, for 14-year-old girls who have the capacity relative to the abortion issue but you say may not have the capacity relative to pornography. Is that, in effect, what you're saying?

MR. OGDEN: I guess I would -- well, I don't think -- I don't mean to say that because I don't mean to necessarily accept the first part of it, that is, or agree with it. That brief was a brief on behalf of a client, it was presenting the views of organized psychology. They don't represent my -- I'm not a psychologist and I don't -- and I don't know about the --

SEN. KYL: But that was the argument that you made in the --

MR. OGDEN: That was the argument that I made for psychologists. But what I wanted to emphasize, Senator, was my commitment to protecting minors from material that is obscene as to them.

SEN. KYL: Well, you understand the reason why we're asking some of these questions, because you're going to have a significant role in advising the attorney general in policy at the Department of Justice. And on behalf of that client, you've taken some very extraordinary positions, some very left-leaning and unorthodox positions. If you're telling us that you didn't believe any of that, that's one thing.

But let me ask you about another very specific case. You submitted the amicus brief in Knox versus United States, correct? That's been discussed, I think, briefly, here.

MR. OGDEN: I did.

SEN. KYL: And that case presented the issue how to define child pornography under federal pornography statues, right?

MR. OGDEN: That's correct.

SEN. KYL: Now, the defendant in the case was convicted under those statutes after U.S. customs intercepted foreign videotapes that he'd ordered labeled "Little Girl Bottoms" and "Little Blondes."

And let me read you the description of the Third Circuit, which upheld the conviction, and ask you if that's correct, to your recollection.

"The tapes contain numerous vignettes of teenage and pre-teen females between the ages of 10 and 17 striking provocative poses for the camera. The children were obviously being directed by someone off camera. All of the children wore bikini bathing suits, leotards, underwear, other abbreviated attire, while they were being filmed. The government conceded that no child in the films was nude, and that the genitalia and pubic areas of the young girls were always concealed by an abbreviated article of clothing. The photographer would zoom in on the children's pubic and genital area and display a close-up view for an extended period of time. Most of the videotapes were set to music. In some sequences, the child subjects were dancing or gyrating in a fashion not natural for their age. The films themselves and the promotional brochures distributed by Nather demonstrate that the videotapes clearly were designed to pander to pedophiles."

That is the description of the court. To your recollection, is that description accurate of the material?

MR. OGDEN: I never saw the material, Senator. I remember that that's how the Third Circuit described it after -- I was no longer in the case at that point, I believe, but that was what the Third Circuit said in describing the material.

SEN. KYL: Well, but you didn't see the material yourself?

MR. OGDEN: I did not.

SEN. KYL: But your brief argued that it didn't constitute child pornography. Is that not correct?

MR. OGDEN: Yes, and the basis for the argument, which was made on behalf of the librarians and the booksellers of this country, was that they just wanted a clear line, which they hoped would be nudity, that you couldn't have child pornography unless there was nudity. That's what they argued for. That argument lost, and that's not the law. And I think that's -- that's appropriate.

SEN. KYL: Well, would you advocate as a policy for the Department of Justice that the standard that the court set out is accurate -- or is acceptable? Or would you argue for a more liberal interpretation? For example, that nudity was required for it to be pornography?

MR. OGDEN: I would argue for the interpretation that the court established, and for the full enforcement of the law as the courts have understood it.

That was an argument made for a client. As the lawyer for the United States, I will aggressively and appropriately enforce the law of the United States to its full letter. And I have a record, sir, of doing that.

SEN. KYL: Well, let me ask you this, yes, because this goes right -- do you believe that the First Amendment permits prosecution for child pornography under the facts of the case that we're just now discussing?

MR. OGDEN: I do.

SEN. KYL: Let me ask you about foreign law, because you submitted a brief in Roper vs. Simmons invoking foreign law in favor of an argument banning the death penalty for those convicted under age 18.

How much weight do you believe foreign law should be given to interpretations of the United States Constitution?

MR. OGDEN: I think typically very little weight, Senator. I think it depends somewhat on the context, which provision. That was an Eighth Amendment case and some justices at the Supreme Court look to practices in other countries in deciding what is "cruel and unusual punishment." As a lawyer, I needed to make that argument.

I think in most areas the governing law is -- and really, ultimately in all areas -- the governing law is the U.S. Constitution, the U.S. statues, and that's where we should focus our attention.

SEN. KYL: One of the questions asked of Chief Justice of the Supreme Court -- now Justice Roberts -- I'll paraphrase. I don't remember the exact wording. But in effect it was how would you rule in a case pitting a big corporation against the little guy and the little guy may have been defined as someone who was relatively powerless. Do you remember that question and his answer to it?

MR. OGDEN: I don't, but --

SEN. KYL: Well, what would your view be of judging in a case pitting a big corporation -- the reason I ask is because you have written some and talked about the need to employ human compassion and described a tension between the rule of law and human compassion in judging cases.

MR. OGDEN: Well, I -- if -- again, as I said to Senator Hatch, it's certainly possible that I said things that were not expressed well. And I certainly don't agree that in judging cases one should have a tension between the rule of law and anything else.

The bottom line in a case between a big corporation and a relatively powerless person is the law and the question is how is the law written and what should -- and what is the law as established. And that's my view. And, frankly, I've represented parties on all -- represented a number of big corporations in cases where on the other side were people who could be described as relatively powerless. And I think in those cases and in all cases the law should govern.

The role of compassion -- my view of that, if I may, just to go on -- because I know that's really the burden of the question -- I think it's important, as I think the president does, that judges understand the circumstances of the people who are in front of them and understand the consequences of their rulings. I think that's quite important. But in the end, the law has to guide legal judgment.

SEN. KYL: Just a concluding comment, if I could, Mr. Chairman. You've, as a lawyer, taken positions on behalf of clients which I characterized as left-leaning or a bit -- well, outside the mainstream. That's my characterization. As representative of all of the people of the United States, it'll be important to leave behind the positions taken on behalf of clients and to, as you just said, uphold the rule of law in all you do.

And -- so it's not so much a question but comment that sometimes it's not easy to do. I used to represent clients too, and I've always been very careful -- I've tried to be careful that I don't give them any extra break in matters of policy that come before me as a legislator.

And I think the same thing needs to be true with regard to your approach to the law at the Department of Justice. I gather you would concur in that.

MR. OGDEN: I concur strongly. And the only thing, if I might add, is that I have experience with this -- (chuckles) -- having been for six-and-a-half years in the federal government, dealing with issues that related to issues that I had advocated on for clients previously. And I'm quite proud of my record. I very consistently, I think, did that. I have the support of people who were involved and saw me do that who I think will testify and have spoken for me that I do and have put the interest of the United States and the rule of law ahead of any other consideration.

SEN. WHITEHOUSE: Indeed that's one of the joys of government service.

Senator Cardin.

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

Mr. Ogden, welcome. We thank you very much for your willingness to serve in this very important public position.

And just so I complete the cycle, I think you said this, but in regards to child pornography, if I heard you correctly, you're saying you not only accept but support the court decisions and are prepared to enforce the law aggressively, as it's been interpreted by the courts?

MR. OGDEN: Absolutely, Senator.

SEN. CARDIN: Thank you. I think that's the key point here. We certainly understand your position in representing clients, and I appreciate that clarification for the record.

I want to talk a little bit about the U.S. attorneys and the supervision of the U.S. attorneys. My colleagues have already brought up the politicalization of the U.S. Attorneys Office under the former administration and how there was political involvement in decisions made as to types of cases which should be prosecuted.

I want to talk about what you see as the appropriate role in giving guidance to the U.S. attorneys, but allowing the U.S. attorneys to work with local government officials as to the priorities within the various jurisdictions.

In the State of Maryland, we have a very close working relationship, between our U.S. attorney and our local government officials, in setting priorities that are important for law enforcement in Maryland.

I want to hear what, you believe, is the appropriate role to be taken, by your direction or the direction of the Department of Justice, in the resources and priorities within the U.S. attorneys, and how the U.S. attorney can establish the priorities, for that particular jurisdiction, working with the local officials.

MR. OGDEN: I think, Senator, I appreciate the question. I think it's an extremely important issue, to make sure that we both have a national approach, to the legal issues that require a national approach, and take appropriate account of the federal issues that vary from jurisdiction to jurisdiction.

And I think what it requires is identifying what the national priorities are and communicating those very clearly, at the same time having a dialogue back and forth with the U.S. attorneys that help us establish that.

Obviously this is a nation built of localities. And we need to know what's happening, all across the country, in setting those priorities. At the same time, certain areas have certain specific issues that need to be addressed. The interaction with state and local law enforcement is important.

I've addressed the need for a seamless, coordinated enforcement, mutual support. And so I think that a dialogue at the local level, setting priorities, is important at the same time that we have national direction, with respect to national priorities.

SEN. CARDIN: You know, clearly terrorism, fighting terrorism was a national priority that by necessity received much more attention and requirements for the local U.S. attorney's office to devote its resources.

Task forces were established, so that we could have a common strategy involving local law enforcement. I think that was the right model to use to try to develop common strategies, to deal with a national problem, using the U.S. attorney's office and local law enforcement.

I would hope that you would have a transparent process, so that the U.S. attorneys are able to make their points in a comfortable setting, so that we can take the limited resources that are available and use them in the best interest of the particular jurisdiction, in which the U.S. attorney operates, as well as the national priorities.

MR. OGDEN: I appreciate that, Senator. I agree entirely that we need to have that kind of dialogue and make it possible to really understand the problems each U.S. attorney is confronting and support them appropriately.

SEN. CARDIN: We also look to you to give us advice as to laws that may need to be changed in Congress in order for you to effectively carry out your law-enforcement function. So let me mention the crack/powder disparity issue and get your views on that. This committee's had hearings on that subject, the disparities.

We know that the overwhelming percentage of people who are incarcerated on crack violations are African-American, and minorities. We know that there is a huge disparity between powder and crack as far as the minimum sentencing is concerned. I think it's five grams will trigger a minimum sentence of five years for crack violations -- crack cocaine -- whereas powder cocaine, it's 500 grams. So you have a hundred-to-one disparity.

I want to perhaps get your view as to how you would go about making recommendations to Congress on changes in federal criminal statutes in order to have more confidence among the community that our laws are fair and are not discriminatory against any segment of our community.

MR. OGDEN: Well, we need to have, as you say, laws that are -- in the drug areas and others -- that are tough and that are also fair and understood to be fair. And I think there's a consensus that's really growing that the disparity between crack and cocaine, as you -- powder cocaine, as you say, a 100-to-1 disparity, needs to be changed. And we need to address that promptly.

As far as the way that I would propose to go about it if I were confirmed: Certainly we need to consult with all the federal authorities with respect to this. We need to look at what the sentencing commission's considerations are. We need to talk with this committee, and there's a lot of expertise here, on both sides. I know that a number of members of this committee have very constructive thoughts about how to address these issues.

And so we would engage there; we would look at all the -- at all the potential options and then work closely with this committee to try to develop an approach that eliminates the disparity, or at least reduces it very sharply.

SEN. CARDIN: I just want to point out one more part, on this disparity.

There's -- the -- and I'm not sure how these statistics are obtained, but the information that's been made available to this committee indicates that the minority use of crack cocaine is much lower than the incarceration rate of minorities for violations of the crack cocaine statutes. So that also raises questions as to the even- handedness of prosecution and going after those who violate our laws.

So it's not only the underlining statute, which I do believe needs to be revisited, but also the way in which resources are used to prosecute those who violate our laws. And I would hope that you would have recommendations to us as to how we can have more -- establish more confidence that the laws are being enforced evenly to all communities.

MR. OGDEN: Senator, what you say about the statistics concern me. I'm not familiar with them. I'll certainly look into that issue. I agree with you. We need tough, firm, smart but fair law enforcement at every level, from the prosecutorial level throughout our system.

SEN. CARDIN: Thank you.

Thank you, Mr. Chairman.

SEN. WHITEHOUSE: I think everyone has had a first round. So let me jump in at this point and first recognize your family, who are here. I, too, married into a matriarchal clan and so I share the appreciation that you and your son and your uncle must have for being surrounded by such a wonderful array of mothers, aunts, sisters, nieces. It is an impressive sight.

MR. OGDEN: Thank you, Senator.

SEN. WHITEHOUSE: And I wanted to let you know that I thought the opening quote that you had in your testimony -- "I have a special regard for the Department of Justice. I know it to be an essential bulwark of our democracy and our freedom. I am the proud son of a career federal civil servant" -- puts you in what I consider to be about exactly the right place to do your job well.

MR. OGDEN: Thank you.

SEN. WHITEHOUSE: I have been a persistent and animated critic of what has happened to the Department of Justice under Attorney General Ashcroft, Attorney General Gonzales and Attorney General Mukasey to different degrees, obviously. But I do want to take this opportunity, since you're the candidate for deputy attorney general, to say a good word on behalf of your predecessor, Mark Filip.

I have heard nothing but good things about him. He left a lifetime appointment to the federal judiciary to come back to the department's rescue. Whatever my disagreements have been with Attorney General Mukasey, I have heard nothing other than that Deputy Attorney General Filip has discharged his responsibilities in the finest traditions of the department.

And since I am a persistent critic of the department, I thought it was appropriate to provide recognition where I feel it was due. And I think it's appropriate, given that you will be taking his position.

A couple of quick questions. OPR is going to be producing a report from the -- of its review of the Office of Legal Counsel in the coming weeks, during the course of this administration. Senator Durbin and I have a letter from Marshall Jarrett indicating that he will release that report to us. Inspector general reports are presumptively public and are normally released; OPR reports -- a little bit more discretionary. I'd like your commitment that you will honor the promise that Marshall Jarrett has made, and release the OPR report when it is public -- when it is completed.

MR. OGDEN: Well, Senator, I agree entirely that public release of important reports by the inspector general and by OPR is extremely important. I have high regard for Marshall Jarrett. I'm not familiar with the specific commitment he made to you, but if he feels it can be released, it seems to me that that must be the case.

SEN. WHITEHOUSE: We'll send you the letter, and follow up.

MR. OGDEN: Thank you.

SEN. WHITEHOUSE: Similarly, I had a question about the investigation of the interference with our U.S. attorneys that has been transferred to Ms. Dannehy, the United States attorney. There is an inconsistency between what the Office of Inspector General and the Office of Professional Responsibility asked for, which is to have a prosecutor appointed who could work with them to help them complete their public review of this, with what took place, which is to have a U.S. attorney authorized to proceed behind the veil of grand jury secrecy to see if there are criminal charges.

I don't know -- I asked Attorney General Mukasey -- I've never received an answer -- as to how that inconsistency had been resolved.

It may very well be that Ms. Dannehy has been authorized and has sought the permission of the court to provide information to OIG and OPR so they can continue their report. It may be not. It may be that this was a giant exercise to push this whole scandal behind Grand Jury Rule 6(e) until the election could be over and the administration could leave.

That question is pending with the department. I would like your commitment that you will in due course and in a reasonable time frame answer it for me.

MR. OGDEN: You certainly have my commitment, Senator, that we'll look into those questions and make sure that the right thing's being done, and get back to you with whatever we can possibly tell you about that.

SEN. WHITEHOUSE: Thank you. I also am concerned about the executive privilege assertions that have been made by the previous administration. As an attorney general, as the governor's legal counsel in Rhode Island, I spent a fair amount of time on executive privilege on the executive side of the privilege, and never in my life would I consider making the assertions that this administration has made. I don't think they -- I don't think they get past the laugh test, frankly.

Previous administrations have done essentially an executive privilege directive from the president. President Clinton did it. President Reagan did it. I would encourage that this administration do it. And I would ask that in preparing that, you at a minimum consult with this committee and consult with the House Judiciary Committee to try to resolve as many of the pending issues relating to executive privilege as possible. If we can sort of cabin it down to an area of really legitimate disagreement, I think that would be a helpful public service.

Right now my belief is that executive privilege was used as a stonewall and, frankly, they didn't care whether the theories were true or not as long as they were adequate to push the question beyond their term of office. And so I think we have to kind of recalibrate, and I think doing it in a bipartisan way and doing it in a way that incorporates both executive and legislative views would be helpful. And I'd like to hear your thoughts on -- on that.

MR. OGDEN: Well, you -- Senator, I think it's a very interesting idea. You raised it in our private conversation. I've thought about it some since then. I think it is an intriguing idea. It does seem to me, as I said to Ranking Member Specter earlier, that the engagement with this committee on oversight and with the Congress in general on oversight is very, very important, and we need to narrow any differences as much as we possibly can so that this committee can perform its functions.

Executive privilege is one of the issues there. I think we need to have a coherent and consistent approach, I think an approach that involves accommodation, as much as we can, and communication. So I think it's a very interesting idea. I will discuss it with Attorney General Holder. I think ultimately that's probably his call and not --

SEN. WHITEHOUSE: White House counsel, I suspect, also.

MR. OGDEN: -- and with Mr. Craig. But I like the idea. I think it's intriguing. And I like, in particular, the idea of a bipartisan engagement on it so that we try to at least have all thoughts and ideas together as we fashion our approach.

SEN. WHITEHOUSE: Final question: As you do the damage assessment, which I think is a very important and very useful exercise, I suspect that things that we are not necessarily aware of now will be disclosed, now that you are in the department.

There are people who are willing to bet their lives and their careers to become whistle-blowers. There are people who are willing to give up the job that they love to get away from an administration that is tainting the department.

There are others who will simply hunker down until the storm is through. And when they believe they have legitimate management again, they will come back out. And it will be, hey, boss, I've had this memo in my, you know, drawer for six months.

I hope that you will set up a process, so that people who are doing that know where to go with it, and that you as managers have a repository where those sorts of new disclosures will go, so that they can be properly analyzed and reviewed, added to the damage assessment if necessary, have appropriate action taken.

I think if that's just left to the ordinary chain of command, it might get confused. And I hope you'll consider specifying, or that they attorney general will consider specifying, within the department, how such disclosures are to be treated.

MR. OGDEN: Well, I think, again that's a very important and interesting idea that you suggested to me in our private conversation.

I am a big believer in whistleblowers, and in the need to make sure that people feel comfortable coming forward to make complaints, and I will say, and to bring problems to the attention of management. And I will say that I don't view that only as an exercise about people blowing the whistle on the past.

I think what we need is a process that encourages whistleblowing in this administration and any other administration going forward. The business of making sure that we're doing the right thing is an ongoing business.

And so my commitment will be that we will work with the attorney general. We'll talk with the career lawyers who have dealt with these kinds of issues. We'll try to fashion an appropriate process that encourages whistleblowers to raise issues that need to be addressed.

SEN. WHITEHOUSE: Thanks, Mr. Ogden.

A vote will be going off shortly. Senator Sessions has asked for a second round. And in the time that we have available, he's welcome to take that time.

(Cross talk.)

Senator Kyl.

SEN. SESSIONS: I will yield to Senator Kyl.

SEN. KYL: Mr. Chairman, I just have one quick comment and then a question.

I do think, if we're trying -- I appreciated your response regarding executive privilege. But on behalf of good people who worked in the Bush administration, I would disagree with the comment that the Bush administration didn't care whether theories were true or not.

I am sure that the advice that was given, by lawyers in the Bush administration Department of Justice, relating to executive privilege, were thought through carefully, and that people were not unconcerned with the truth of them.

One of the things that -- in our previous exchange, you alluded to the arguments you've made on behalf of clients. But you also have said some things about your own personal views. And I wonder how extensive they would be carried into your new position.

In a 1990 tribute to Justice Blackmun, you praised the justice's separate opinion in the affirmative action case Regents of the University of California versus Bakke. His opinion not only endorsed the factor approach to affirmative action that considers a wide variety of factors, including race, it also would have upheld the University of California's more sweeping approach that entailed outright set-asides and quotas, which is the approach the court struck down in Bakke.

You wrote, quote, "To this day, no other writing on the subject of affirmative action is so persuasive to me as the justice's short Bakke concurrence." Does that remain your opinion today?

MR. OGDEN: It is not my opinion today that quotas or a rigid approach to affirmative action is appropriate. What I, I think, intended -- and again, the failure of expression is entirely my fault -- what I meant to articulate was that his statement that we must take account of race to get beyond race for a time was something that I found then to be very persuasive.

And I think the court's approach, the multifactored approach that you identify, which has found that to be appropriate in some circumstances, is really based on that idea. It's something that we wish we didn't have to do, but in limited circumstances we do, but I certainly don't think a rigid approach is appropriate and I don't agree with that way of going about affirmative action.

SEN. KYL: Thank you. And thank you. Senator Sessions?

SEN. WHITEHOUSE: Does Senator Cardin wish a second round?

SEN. SESSIONS: I was going to use the rest of his two and half minutes he left me.

First, I want to -- I wanted to say that the earlier example about your memo to Justice Blackmun indicates to me that judges are entitled to have private memorandums from their clerks about how they should think about a case. I don't think Senator Whitehouse wants memorandums to him from his staff revealed every time somebody would like to peruse it and see what they told you. And I think there is legitimate basis for -- on any administration -- to assert reasonable standards of confidentiality within its own house and within its own debate. Do you think that's --

MR. OGDEN: I do agree with that, Senator.

SEN. SESSIONS: Thank you, very good.

SEN. : And I'm on board, too.

SEN. SESSIONS: Okay, good.

In Simmons you argued that -- this is a death penalty case, which was the 17-year-old who committed a brutal murder -- captured a lady, told people beforehand he was going to do it; didn't even know her, I don't think; taped her up, threw her off the bridge -- and she drowned -- and bragged about it afterwards.

Well, we can disagree on that. But -- and you argued international law should be considered by the United States Supreme Court as part of evolving standards of decency and that that should impact the United States Supreme Court in interpreting the United States Constitution, which I believe is a contract signed a number of years ago with the American people that has been amended formally on a number of occasions.

Do you think international law should have been a factor in that decision?

MR. OGDEN: Well, I think it's an interesting question, whether evolving standards of decency -- and that's not my phrase, of course, Senator; that's the --

SEN. SESSIONS: But I think you used that phrase in your brief.

MR. OGDEN: I do, because that's the test that the Supreme Court has established in determining what is cruel and unusual punishment.

SEN. SESSIONS: That is true. It preceded you -- (inaudible) --

MR. OGDEN: And a good lawyer always tries to tell the court that he wins based on the court's standard. And that is the court's standard -- evolving standards of decency.

And the question whether practices in other countries should inform our view of what evolving standards of decency are, I think, is a difficult question, and the court's divided on it. I think it's probably relevant in thinking about these issues, but it's really not so much foreign law and foreign practice, but the fundamentally important thing is domestic law, domestic practice, because the evolving standards are our standards, the American people's standards.

SEN. SESSIONS: Well, I think it's one thing to appreciate the logic of a court in the United Kingdom, but I'm not sure the -- any -- there's any relevance at all to a interpretation of United States Supreme Court what a parliament of France or China or any other place did.

MR. OGDEN: I agree with -- I agree with --

SEN. SESSIONS: Isn't there a danger, when you use -- allow a judge to take a statute and -- or constitutional provision and provide -- and interpret it in light of evolving standards of decency?

Isn't that, in fact -- isn't the danger in that that it is virtually a license? It gives the judge the ability to pick any standard -- any news article or idea floating around the world to allow them to interpret the statute in a way that it wouldn't otherwise have been interpreted? Isn't that no standard at all? Isn't it basically allowing a judge to utilize their own personal values and opinions to color their interpretation of the statute?

MR. OGDEN: I think as an initial matter, it's quite -- I think there's a danger. I think there's a danger with many -- particularly constitutional -- provisions, that there has to be great rigor in applying them to avoid just that kind of problem. And I think it's extremely important.

SEN. SESSIONS: We're concerned about that, and it's a dangerous trend. If you love this Constitution, and you really respect it, I believe that just -- Professor Van Alstyne said at Duke you'll interpret it as it's written. You start playing around with it and interpreting it like somebody in a foreign country, their policies, then it erodes the very principles that protect us, protect our liberty in a very firm way. That's -- so --

MR. OGDEN: I have one -- I guess -- I don't mean -- I don't disagree with what you've just said. I do want to point out in that case, the first arguments we made were about U.S. practice and -- in trying to decide, what does America consider today to be cruel and unusual? And the question there was whether it was cruel and unusual to punish with death somebody who was a minor when they committed the crime. And the --

SEN. SESSIONS: Well, you're talking about politically, what people are doing politically today. But the Constitution allows things that might be rarely done, doesn't it?

MR. OGDEN: Well, the --

SEN. SESSIONS: If it allows an event, and 50 percent statutorily -- or 80 percent of the states statutorily constrict that power, which they may have a right to do, doesn't mean that another state can't allow the traditional interpretation to continue.

MR. OGDEN: Senator, I have -- I first of all have -- want to express my appreciation for your constitutional knowledge and scholarship. I don't want to -- I don't want to take you on at all. I think the -- in this area, the word "unusual" is a word that is in the Constitution. It's -- cruel and unusual punishment is prohibited. And I think that's why advocates --

SEN. SESSIONS: Both. Both cruel AND unusual.

MR. OGDEN: It must be -- I agree with you. It's got to be -- and it says "and." It doesn't say "or." But it's because the Constitution speaks of unusual punishment that is cruel being improper, that advocates for people challenging punishments talk about practices across the country and talk about them throughout the world.

I think that's the reason for it. You may think that's not appropriate. And I think there are arguments to that effect. But it seems to me, that's the reason that that's done.

SEN. SESSIONS: I trust you'll enforce the death penalty according to the laws of the United States.

MR. OGDEN: I will do so. And I'm pleased that I had the opportunity to talk with our district attorneys, about that, and assured them of the same thing. And I'm pleased to have their support.

SEN. SESSIONS: Thank you, Mr. Chairman.

SEN. WHITEHOUSE: Senator Cardin, for a second round.

SEN. CARDIN: Thank you, Mr. Chairman.

Just very briefly I think that the points that Senator Sessions made are very valid points. The Constitution is not only loved and respected. It is the basis of the rule of law of our country. But I think it also incorporates the universal principles for a democratic state.

So I think listening to what is developing internationally is important for us. I think about how many times senators write letters to public officials, in other countries, telling them that some of the things that are happening, in their court system, or the laws that they're passing are inconsistent with commitments for democratic states.

So the United States is very actively involved in trying to establish international principles. And I think that's a good thing. I'm not disagreeing with that. But I think at times, it appears to be one-sided to other countries.

I think we need to listen to what's happening internationally, not to affect a court decision, because I agree with Senator Sessions on that issue, but to reflect as to whether the principles of our country are still mainstream, in promoting what a democratic state should be doing and the human rights agendas and so many other areas.

So I hope we're not tone-deaf to what's happening internationally. I think we need to be mindful of what is happening. I also think we need to make sure that we follow the principles of the rule of law of our own country. And it's up to the legislature, the Congress, to change those laws. And I think we all agree on that.

So I just thought that exchange was helpful. And I'm very confident. I feel a lot more confident hearing your response.

And I know that you'll be an incredible help to Attorney General Holder in the evaluation of what's happened in the Department of Justice and setting a new course to restore the confidence to the American people that the Attorney General's Office is the attorney for the country, not for any one person, and that it will recruit and retain the very best legal minds on behalf of the American people.

I wish you well on your journey, and I thank you for including us as your partners.

Thank you, Mr. Chairman.

SEN. WHITEHOUSE: Senator, thank you for those thoughtful comments.

I think we are now at the conclusion of the hearing. I thank everybody who has attended.

As a matter of final business, I will add into the record, without objection, letters of support for the nomination of David Ogden, from:

Beth Brinkmann, former assistant to the solicitor general; Bill Lann Lee, former assistant attorney general, civil rights division; Carolyn Lamm, former president of the District of Columbia Bar; Carter Phillips, former assistant to the solicitor general; Christine Gregoire, the governor of the state of Washington, and my former colleague as attorney general of that state; Daniel Troy; Daniel Levin, former acting assistant attorney general in the Office of Legal Counsel; Daniel Price, former assistant to the president, Department of National Security Advisor; David Frederick, former assistant to the solicitor general; Deval Patrick, the governor of the state of Massachusetts, and the former head of the civil rights division of the Department of Justice; Doug Gansler, the attorney general of Senator Cardin's state of Maryland; H. Thomas Wells, the president of the American Bar Association; James Robinson, former assistant attorney general of the criminal division; Jamie Gorelick, former deputy attorney general, a predecessor of yours; Janet Reno, former attorney general; Jo Ann Harris, former assistant attorney general of the criminal division; John Bellinger, the former counsel for national security matters of the criminal division; Kenneth Geller, former deputy solicitor general; Larry Thompson, another predecessor, former deputy attorney general; Manus Cooney, former chief counsel of this committee; Michael Horowitz, commissioner of the United States Sentencing Commission; Paul Cappuccio, former associate deputy attorney general; Peter Keisler, former assistant attorney general, former acting attorney general; Rachel Brand, former assistant attorney general for legal policy; Reginald Brown; Richard Taranto, former assistant to the solicitor general; Robert Hoyt, former associate White House counsel, former general counsel to the U.S. Treasury Department; Seth Waxman, former solicitor general; Stuart Gerson, former assistant attorney general in the civil division; Tom Miller, another former colleague of mine, is attorney general of Iowa; Todd Steggerda, former chief counsel to the McCain presidential campaign; Todd Zubler, former deputy general counsel to the McCain presidential campaign; along with statements of support from the Federal Law Enforcement Officers Association, the Fraternal Order of Police, the Major Cities Police Chiefs Association, the National Association of Police Organizations, the National District Attorneys Association, the National Narcotic Officers Association Coalition, the National Sheriffs Association, the Police Executive Research Forum, the Community Anti-Drug Coalitions of America, the National Center for Missing and Exploited Children, the National Center for Victims of Crime, the Partnership for a Drug-Free America, the Anti-Defamation League, the Leadership Conference on Civil Rights, the National Women's Law Center, the American Psychological Association, the Boys and Girls Clubs of America, and our Judge Advocates General.

We'll be keeping the record open formally for a week for written questions. The chairman urges members, however, to send written questions as soon as possible and no later than Monday by noon, if at all possible, so that we do not delay in moving forward on this nomination and getting the deputy in place managing the department.

With that, I thank the witness for his presence here today. I thank his family and his children for their attendance. And the hearing is adjourned. (Strikes gavel.)

MR. OGDEN: Thank you, Mr. Chairman.

END.


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