Hearing of the Senate Judiciary Committee - Nomination of James Cole

Statement

U.S. Senator Jeff Sessions (R-AL), Ranking Member of the Senate Judiciary Committee, made the following comments today at the nomination hearing for James Cole to be Deputy Attorney General:

"There are a number of critical areas that the Deputy Attorney General will be involved in. Of course, you act in the absence of the Attorney General, and I'm sure he will give you a great deal of the management and responsibilities of the Department that has always and traditionally fallen to the Deputy. He needs a strong right arm, and I know he's a friend of yours.

But I have some serious concerns, and we'll talk about those as we go forward.

First, I am deeply concerned with the aggressive way in which you criticized our government's response to the September 11th attacks and the creation of military commissions. Your statements show an adherence to the failed pre-9/11 law enforcement approach to Islamic terrorism that focused on indictments rather than intelligence and individual suspects rather than the international terrorist networks. You were aggressive in that. That was the position you took, and it was contrary to what the 9/11 Commission concluded.

Your criticism of our efforts against al Qaeda started early. According to a Washington Post article just two months after 9/11, "Washington criminal lawyer James Cole said the Bush administration is invoking an emergency as a pretext for actions "contrary to the spirit and letter of the Constitution.'" I don't think that's an accurate or fair criticism.

Just days before the one year anniversary of September 11th, you wrote an op-ed--not honoring the victims of 9/11 or calling for justice against bin Laden--but faulting then-Attorney General John Ashcroft for his decision to support military commission trials for foreign terrorists.

In your op-ed, you argued that, "the attorney general is not a member of the military fighting a war--he is a prosecutor fighting crime. For all the rhetoric about war, the Sept. 11 attacks were criminal acts of terrorism against a civilian population…" You compared the September 11th attacks to criminal acts like drug violations, organized crime, and murder, writing that "[t]he acts of Sept. 11 were horrible but so are these other things." You even accused Attorney General Ashcroft of taking America down a dangerous road and abandoning core American principles by supporting military commission trials.

From your prior statements, it appears that you would favor trying the September 11th plotters--whether Khalid Sheikh Mohammed or Osama bin Laden--in a civilian criminal court. I would also have to assume, based on those statements and your writings, that you are in favor of providing Miranda warnings to foreign terrorist leaders when they are captured.

Frankly, I am concerned what kind of signal your nomination sends. What is the President saying about his determination about how to proceed against these enemy combatants who threaten the United States?

Does your nomination suggest that the Administration believes it was the correct decision to advise the Christmas Day bomber that he could remain silent and be entitled to a lawyer?

The 9/11 terrorists are war criminals, not common criminals. The attacks were orchestrated by an international terrorist organization--al Qaeda--that was harbored by a foreign government, the Taliban in Afghanistan, against whom we have authorized the use of military force. They should be prosecuted, consistent with history and propriety, via military commission, just as this Nation prosecuted the Nazi saboteurs who came to this country to bomb civilian targets in World War II. As a matter of both constitutional and international law, and as a matter of history, these unlawful combatants are no different.

I also disagree with your claim in your op-ed, where you characterize the civilian trial of Omar Abdul-Rahman--the mastermind behind the first World Trade Center attack--as a successful model for how to prosecute the 9/11 terrorists. And I am not alone. Both the lead prosecutor in that case, Andrew McCarthy, and the presiding judge, Michael Mukasey, disagree with the notion that the Rahman trial was somehow a model for prosecuting terrorism cases. Former Attorney General Mukasey has written that "terrorism prosecutions in this country have unintentionally provided terrorists with a rich source of intelligence" and specifically cited the Rahman trial as having tipped off Osama bin Laden through the production of a list of unindicted co-conspirators. Mr. McCarthy has said, "A war is not a crime, and you don't bring your enemies to a courthouse."

The top officials within the Department of Justice must reject this blind adherence to the pre-9/11 criminal law mindset. On that note, I should add that I am concerned that so many Department nominees and officials have made statements similar to yours.

Briefly, let me say that your role as compliance monitor of AIG in the years leading up to the 2008 financial collapse and $182 billion bailout of AIG is also troubling. You were entrusted to monitor that company and put effective controls in place. I think we can both agree that the government's efforts were not effective.

Some well-respected whistleblower organizations have raised questions about your nomination in light of the AIG matter. They have cited internal whistleblower claims that you allowed AIG executives to revise your reports to the SEC. Maybe we can discuss that and get your side of that.

Mr. Cole, you were also reportedly responsible for reviewing transactions structured by AIG-Financial Products group, the one that was at the center of the credit default swaps.

Mr. Chairman, our nominee has a lot of experience in the Department of Justice, he has the confidence of the Attorney General, he brings a number of good qualities to this committee and to the office, if confirmed, but also there are a number of questions that do need to be raised and discussed."

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