[Senate Hearing 109-750]
[From the U.S. Government Printing Office]
S. Hrg. 109-750
CONFIRMATION HEARING ON THE NOMINATION OF TIMOTHY ELLIOTT FLANIGAN TO
BE DEPUTY ATTORNEY GENERAL
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
JULY 26, 2005
__________
Serial No. J-109-62
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 6
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 4
prepared statement........................................... 140
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
letter....................................................... 143
PRESENTERS
Allen, Hon. George, a U.S. Senator from the State of Virginia
presenting Timothy Elliott Flanigan, Nominee to be Deputy
Attorney General, Washington, D.C.............................. 3
Warner, Hon. John, a U.S. Senator from the State of Virginia
presenting Timothy Elliott Flanigan, Nominee to be Deputy
Attorney General, Washington, D.C.............................. 2
STATEMENT OF THE NOMINEE
Flanigan, Timothy Elliott, of Virginia, Nominee to be Deputy
Attorney General, Washington, D.C.............................. 7
Questionnaire................................................ 26
QUESTIONS AND ANSWERS
Responses of Timothy Elliott Flanigan to questions submitted by
Senators Leahy, Feingold, Durbin and Kennedy................... 94
SUBMISSION FOR THE RECORD
Warner, Hon. John, a U.S. Senator from the State of Virginia,
prepared statement............................................. 145
NOMINATION OF TIMOTHY ELLIOTT FLANIGAN, OF VIRGINIA, TO BE DEPUTY
ATTORNEY GENERAL
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TUESDAY, JULY 26, 2005
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 4:04 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Arlen
Specter, Chairman of the Committee, presiding.
Present: Senators Specter, Hatch, Leahy, Feingold, and
Durbin.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. Good afternoon, ladies and gentlemen. We
are convened for the confirmation hearing of Hon. Timothy E.
Flanigan. I note the presence of the entire Virginia Senatorial
delegation, and we will begin momentarily. Senator Leahy is en
route, but it is just a minute or two after 4:00, our starting
time.
[Pause.]
Chairman Specter. I have just had word that Senator Leahy
is going to be slightly delayed, so we are going to proceed at
this time at his request.
We are proceeding now with the confirmation hearing of Hon.
Timothy E. Flanigan, who comes to the nomination by President
Bush to be Deputy Attorney General with a very distinguished
record. He has an excellent academic record, having received
his bachelor's degree from Brigham Young University in 1976 and
his law degree from the University of Virginia. He was senior
law clerk to Chief Justice Warren Burger. He has been
associated with the Who's Who of law firms in the area:
Shearman & Sterling; Jones, Day; Mayer, Brown & Platt; McGuire,
Woods; White & Case. He has served as Deputy Counsel to
President George W. Bush, and since 2002 has been Senior Vice
President at Tyco International. He has a very distinguished
record in the community field, and without objection, his full
record will be made a part of the record.
Let me yield at this time to my distinguished Ranking
Member whom we had expected to be late, but he is right on
queue. Senator Leahy?
Senator Leahy. Have Senator Warner and Senator Allen
spoken?
Chairman Specter. No, but the practice of the Committee is
to yield to the Ranking Member first.
Senator Leahy. I have to stay. They do not have to. If you
want, I would be happy to go after them. It is up to you.
Chairman Specter. Are you suggesting a formal waiver?
[Laughter.]
Chairman Specter. Senator Warner, in an era of waivers
right and left--
Senator Leahy. I do want to be here long enough. I
understand that the White House is going to do, in lieu of
substance, a symbolic drop of documents outside. I love
watching symbolic things, and I want to be here for that, but
then I want to come back to do the substantive ones. So I would
just as soon wait.
Chairman Specter. Senator Warner, your presence has been
rewarded by a waiver. The senior Senator from Virginia, we are
delighted to recognize you for introduction.
PRESENTATION OF TIMOTHY ELLIOTT FLANIGAN, NOMINEE TO BE DEPUTY
ATTORNEY GENERAL, BY HON. JOHN WARNER, A U.S. SENATOR FROM THE
STATE OF VIRGINIA
Senator Warner. I accept that, Mr. Chairman, and
distinguished Ranking Member, my long-time friend, and
temporary resident of Virginia on weekdays, and our
distinguished beloved and former Chairman, Senator Hatch.
This is the real thing, I say to Senator Leahy, not a
symbolic nomination, because this is the President's nomination
of an outstanding, able individual to become the important
Deputy Attorney General of the United States. And I think at
this time, with the permission of the Chair and other members,
I would like to have his wife, Katie, as we say in the Marine
Corps, hold muster for some 14 children. I think 13 of them
have reported for duty today. So at this time, I yield the
floor to Mrs. Flanigan.
Mrs. Flanigan. I am Katie Flanigan, and let me introduce my
children and their spouses, if that is all right: our oldest
daughter Rebecca and her husband, Peter; our son Patrick, and
his wife, Lupita, and our two granddaughters, Samantha and
Jessica; our son James and his wife, Rochelle; our son Timothy;
our daughter Elizabeth, and her husband, Dan; our daughter
Maureen and her husband, Marc; and her twin sister is the one
who is not available. She is in Las Vegas--
Senator Warner. That is most impressive. I thank you.
Mrs. Flanigan. We are not finished yet.
Senator Warner. Oh.
[Laughter.]
Mrs. Flanigan. Our son Kevin; our son Mark; our son John;
our daughter Rachel; our daughter Molly; and our twins Sarah
and Melanie Flanigan.
Senator Warner. I repeat, that is most impressive.
[Laughter.]
Senator Warner. Is there anyone else who would like to
claim kinship?
[Laughter.]
Senator Warner. If not, forever hold your peace.
Thank you, Mr. Chairman and members of the Committee, and
the distinguished Chairman has given a number of the
accomplishments of this nominee in terms of his legal career. I
would just address the importance, as this Committee knows, of
the tasks of the Deputy and the tremendous amount of
responsibility.
As we all know, the Deputy Attorney General is second in
charge at the Department of Justice, and as the second in
charge, the Deputy plays an indispensable role in advising the
Attorney General and helping him implement Department of
Justice policies. While always a challenges task, this position
has taken on added importance since September the 11th, as this
country has faced and continues to face these new problems
associated with the war on terror. Given this reality, it is
paramount that America have someone of the highest
qualifications to fill this role.
Nearly 2 years ago, I came before this Committee to
introduce and recommend Jim Comey for this job. Soon
afterwards, his nomination was reported favorably from this
Committee, and he was confirmed by the full Senate by voice
vote. Undoubtedly, Jim has served this country with distinction
as the Deputy Attorney General. And while Tim Flanigan
certainly has big shoes to fill, I know that Tim is eminently
qualified, and I am confident he is up to the task.
I would yield now to my colleague and ask that the balance
of my statement be placed into the record.
Chairman Specter. Without objection, your full statement
will be made a part of the record, Senator Warner, and we are
delighted to have your colleague Senator Allen with us.
[The prepared statement of Senator Warner appears as a
submission for the record.]
PRESENTATION OF TIMOTHY ELLIOTT FLANIGAN, NOMINEE TO BE DEPUTY
ATTORNEY GENERAL, BY HON. GEORGE ALLEN, A U.S. SENATOR FROM THE
STATE OF VIRGINIA
Senator Allen. Thank you, Mr. Chairman and Ranking Member
Senator Leahy and Senator Hatch. Thank you all for allowing me
to present to you and introduce a gentleman I very much support
as Deputy Attorney General for the United States. As my
colleague John Warner has stated, Tim Flanigan--and you have
stated, in fact, Mr. Chairman--is eminently qualified to serve
as Deputy Attorney General for the United States. He is a
consummate professional, brilliant, diligent, evenhanded, wise,
and principled. And he is not just an outstanding lawyer, he is
a strong leader, a skilled manager who is respected by his
peers, his bosses, and subordinates alike. He has worked at the
highest levels of Government at some of the most prestigious
law firms. He was actually a partner with me for a short while
at McGuire, Woods. And he is conversant in criminal law,
appellate law, international law, national security matters,
administrative law, corporate law, and litigation. It is no
wonder that the President has selected this outstanding
gentleman, Tim Flanigan, to be Deputy Attorney General.
I am confident that he will serve the people of this Nation
as well as the Department of Justice very well. He did go to
the University of Virginia after going out West to Brigham
Young and completed law school at the University of Virginia. I
will not repeat all the aspects that you have mentioned, and my
colleague, but he has served in a variety of roles in
Government, out of Government, even for Chief Justice Warren
Burger on the Supreme Court and, in fact, was even asked to
collect the papers and begin the preparation of Chief Justice
Warren Burger's biography.
He also served in the private sector with Tyco, and while
some people say, gosh, he was with Tyco as senior vice
president and general counsel, what he did--and it was no easy
task--he spearheaded the introduction of vigorous legal
compliance programs to change the underlying culture at Tyco.
He also oversaw the restructuring of a very large corporate law
department and was a part of seniors leaders of a $40 billion
company, and that is big even for Federal Government standards.
In addition to his stellar legal career and service in and
out of Government, he is involved in a variety of community and
religious activities, the Church of Latter Day Saints, the Boy
Scouts, and Brigham Young University. His wonderful family, his
wife of 31 years, and 14 kids and spouses and grandchildren, is
otherwise known, will be known hereafter as ``the Flanigan
precinct of Great Falls, Virginia.''
So, Mr. Chairman, let me just say this in conclusion: Thank
you for holding this hearing. I believe Tim Flanigan truly is
an outstanding nominee, great experience, impeccable
credentials, the right philosophy, but most importantly, the
integrity that we would want to have a Deputy Attorney General
for the United States. And I am proud to say he does live in
Virginia, and I hope that this Committee will be able to move
as expeditiously as possible to get this nomination to the
floor so that Mr. Flanigan can start serving the United States
of America.
I thank you, Mr. Chairman, Senator Hatch, and Senator
Leahy.
Chairman Specter. Thank you very much, Senator Allen, and
we know how busy each of you is, and you are, of course, free
to take leave at this time and we will carry forward.
I want to thank Senator Leahy for agreeing to a 4 o'clock
hearing. This is not a customary time for the Judiciary
Committee to hold its hearings, but as may be noted, we have a
jammed agenda, and Senator Leahy was gracious in consenting
working overtime, really, with all his other duties, to be
present for this late afternoon hearing. Senator Leahy?
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman. We are all working
overtime, and no one more than yourself.
As Senator Warner said, the Deputy Attorney General is a
key player in the Department of Justice. He serves in the
number two position, advises and assists the Attorney General
in developing and implementing departmental policies and
programs, provides supervision and direction to all the
departments. He is authorized to exercise nearly all the power
and authority of the Attorney General, and in the absence of
the Attorney General, he acts as the Attorney General.
Now, I list all these responsibilities because it
illustrates the importance of the position. He can be called
upon in certain circumstances to be the Nation's top law
enforcement officer. The current Deputy, James Comey, and his
predecessor, Larry Thompson, both had extensive experience
serving as prosecutors, and both were called upon on occasion
to serve as our top law enforcement officer.
Mr. Flanigan does not have any such prosecutorial
experience. He worked in the Office of Legal Counsel in the
first Bush administration. He spent some years in a white-
collar criminal law practice. Normally I would not find that so
troubling, but the current Attorney General had no
prosecutorial experience before being named to his position.
But even that might not be as troubling, but they are not
alone. Alice Fisher, who has been named to serve as the head of
the Criminal Division, also never worked as a prosecutor. So if
Mr. Flanigan and Ms. Fisher are both confirmed by the Senate,
then none of the top three leaders of the Department with the
responsibility for criminal law enforcement will have this kind
of critical experience in this area. They are top law
enforcement officers of the country, and I suppose one can
start out at the top without experience. But I think most
Americans would expect one of the three to have had some
experience in this area.
I am also concerned at the reports that say that Mr.
Flanigan played a key role in developing the administration's
policies regarding the interrogation and prosecution of
terrorist suspects after September 11th. These were horrific
acts. We expected the administration to move aggressively to
protect the security of the Nation. But they took many steps
that many in the Congress and even some in the executive branch
believed went too far.
In November 2001, the President signed a military order to
authorize military commissions. The administration argued that
it did not need the authorization of Congress to establish the
tribunals, which one conservative Republican columnist, William
Safire, called ``kangaroo courts,'' because they fell vastly
short of the procedural protections either in our criminal
courts or in military courts-martial. News reports suggest that
Mr. Flanigan, along with one other, wrote the orders, drafted
them.
According to press accounts, he rejected the idea of using
criminal courts to try terrorist suspects, believing that
access to defense lawyers and due process rights would hamper
information collection. According to Newsweek, heated debates
occurred between the White House and the Justice Department,
based upon the fact that the Solicitor General's office feared
the complete denial of counsel to enemy combatants would not
withstand Supreme Court review. These accounts say that Mr.
Flanigan ``argued against any modification, urging that more
suspects be designated as enemy combatants.''
And then we understand from public comments he himself has
made that Mr. Flanigan was involved in reviewing proposed
interrogation techniques for terrorist suspects. He reportedly
reviewed and discussed with DOJ lawyers the infamous ``torture
memo'' signed by Jay Bybee, then the head of the Office of
Legal Counsel. He was involved in discussions of specific
interrogation techniques such as suffocation, simulated
drowning--``waterboarding''--and so on.
So I think we have to ask him, Did he agree with the
Department's interpretation of the torture statute at the time
the memo was issued in August 2002? Did he argue against what
the Department eventually determined itself to be flawed
reasoning? What did he think of the memo's assertion of
unchecked executive authority, the so-called commander in chief
override?
Now, when I questioned the Attorney General at length on
this point in his confirmation hearing, he would not state
whether he disagreed with the memo's legal analysis on this
topic? I hope that Mr. Flanigan will be more forthcoming.
I was interested in a statement he made before the
Judiciary Committee on another area, the subject of judicial
activism. He said, ``First among these''--speaking of judicial
activism--``in my view, is [the] need for the Judiciary
Committee and the full Senate to be extraordinarily diligent in
examining the judicial philosophy of potential nominees. In
evaluating judicial nominees, the Senate has often been stymied
by its inability to obtain evidence of a nominee's judicial
philosophy. In the absence of such evidence, the Senate has
often confirmed a nominee on the theory that it could find no
fault with the nominee. I would reverse the presumption and
place the burden squarely on the judicial nominee to prove that
he or she has a well thought out judicial philosophy, one that
recognizes the limited role of Federal judges. Such a burden is
appropriately borne by one seeking life tenure to wield the
awesome judicial power of the United States.''
I want you to know, Mr. Flanigan, I totally agree with you
on that statement.
Thank you, Mr. Chairman.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Specter. Thank you very much, Senator Leahy.
We are joined by the distinguished former Chairman of the
Committee, who likes your Brigham Young affiliation. He said to
me, when your nomination had been sent up, ``Arlen, provide a
prompt hearing for this very good man,'' and here we are.
Senator Hatch, you are recognized.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Well, thank you, Senator Specter. So nice of
you to recognize me. Normally it is just the Chairman and the
Ranking Member, but he knows how deeply I feel about this
nomination, having worked with you in a variety of positions
and knowing the tremendous talents that you have. But, most
importantly, you have a capacity for decency and honor that
cannot be excelled. And to me that is more important than
anything else. You have all of the intellectual credentials.
You have all of the legal credentials. You have served in the
highest levels of this administration and others as well. And
you are a person of great moral integrity, and proud of your
family. It is good to see them all again and see them all here
and this wonderful wife of yours. She is a great companion to
you.
So I look forward to supporting you with everything I can,
and I know that once you get there, you will do as good a job
as anybody possibly can. And I just wish you well and will do
everything in my power to make sure that this gets done as
expeditiously as possible because it is important. I think Mr.
Comey is an excellent Deputy, and I believe you will make an
excellent successor to Mr. Comey.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Hatch.
Mr. Flanigan, would you stand for administration of the
oath? Raise your right hand. Do you solemnly swear that the
testimony you give before this Senate Judiciary Committee will
be the truth, the whole truth, and nothing but the truth, so
help you God?
Mr. Flanigan. I do.
Chairman Specter. Mr. Flanigan, I compliment you on your
outstanding record, both professionally and family-wise. It is
very impressive to see your wife introduce your children, and
with your family background is a very, very good start.
You were in the White House, Mr. Flanigan, on September 11,
2001, and I am sure you followed the President's reorganization
plan to better cope with the issues of terrorism. What are your
plans to implement what the President has proposed if
confirmed?
STATEMENT OF TIMOTHY ELLIOTT FLANIGAN, NOMINEE TO BE DEPUTY
ATTORNEY GENERAL
Mr. Flanigan. Thank you, Senator. I have followed with
interest the President's proposals. I think we have gone
through an evolution in the days since 9/11 in our approach to
matters of national security as they related to the war on
terror. I think that the recommendations of the Commission were
right on the money, that we need a different focus within the
Justice Department. I think the creation of the National
Security Division is a step that the time has come for it.
I think it also presents a management opportunity with
respect to both the Criminal Division and the FBI to focus the
parts of the Criminal Division and the FBI that are not
terrorism focused, to make sure that they maintain the focus on
their important missions with respect to violent crime, drugs,
and the other issues that they face.
So my hope going forward would be--I am speaking, of
course, as an outsider at this point in time, but my hope, if I
am confirmed, would be to be there to be intimately involved in
the reorganization. I know there are many complex issues that
need to be sorted out in connection with that. Just sitting
here, I don't know whether those are legislative issues in
addition to management issues within the Department. But I do
plan to make that one of my focuses.
Chairman Specter. Considering the very high priority on the
war against terrorism, Mr. Flanigan, would you commit to
spending a considerable portion of your time--we cannot
micromanage what you are going to do, but to make the war on
terrorism a top priority as you assist the Attorney General as
the chief operating officer of the Department of Justice?
Mr. Flanigan. Yes, Mr. Chairman, I will. And I believe that
one of the Deputy Attorney General's most important roles is to
ensure that the priorities that the Attorney General has laid
out for the Department are carried into action. And Attorney
General Gonzales has identified continuing the fight against
terrorism as the number one priority of the Department of
Justice--not the only priority but its top priority.
Chairman Specter. Will it be your number one priority as
well?
Mr. Flanigan. Yes, sir, it will be.
Chairman Specter. Senator Leahy has accurately described
the issue of prosecutorial experience in the Department of
Justice, and it is something that he would be especially
cognizant of, having been a prosecuting attorney himself, as
was I. And there are a great many nuts and bolts to all the
things we lawyers do. What would your approach be in your
supervisory capacity over the Criminal Division to compensate
for the lack of hands-on criminal law practice that you
yourself have not had the opportunity to follow?
Mr. Flanigan. Mr. Chairman, I have the benefit of having
served in the Department of Justice as the head of the Office
of Legal Counsel in the President's father's administration at
a time when the Deputy Attorney General was first Bill Barr,
later Attorney General of the United States, and then George
Terwilliger, and I saw how that office functioned well,
particularly under Attorney General Barr with his--he, like me,
had not been a prosecutor before coming to that office, and he
made sure that he surrounded himself with able Associate
Deputies who were skilled prosecutors. One of them, I believe--
one of them, I know, came from Senator Leahy's home State,
George Terwilliger, later my law partner. But I think that that
is one key, being sure that we have in the Deputy's office a
staff that reflects the prosecutorial expertise.
Another point would be for me to be cognizant of the role
of the professional prosecutors within the Department of
Justice. I have great respect for the men and women who give
their professional careers over to this element of the pursuit
of justice. I listen to them. I believe that I can understand
them. And I believe that I can take their advice.
Chairman Specter. May I make a suggestion to you? Pat, my
red light is on, but when only three of us are here, when we
have a panel full, we meticulously observe the time. But this
is a very important position, and I am going to extend a
little.
Noting Senator Leahy's assent and Senator Hatch's lack of
objection, my suggestion is to work with some of the career
professionals, perhaps two or three, get to know them, find out
what they are doing, what their analysis is, and spend a little
time with them, because you have some great career
professionals in the Department of Justice. And you can learn a
lot by talking to them and following them through on case
management, case preparation, case analysis. But it really is
important that in the Criminal Division there be some real
experience.
I would make the same suggestion to you in other fields.
Obviously you have to make an allocation of your time, but
antitrust, again, is a very complex subject, and at least from
my review of your resume, you have not been involved there. No
reason for you to be involved in every line. Also on the Civil
Rights Division, and I would apply that generally as you take a
look at the very, very major responsibilities that you will
have as Deputy Attorney General.
Senator Leahy has noted the issue of interrogation tactics.
I think it is important for the Committee and the full Senate
to know what role you had in the formulation of those
interrogation practices. So would you tell us just exactly what
participation you had?
Mr. Flanigan. Certainly, Mr. Chairman. And I will preface
this by giving the Committee some background concerning this
issue.
Sometime, I believe, in the summer of 2002, the Department
of Justice Office of Legal Counsel contacted the Office of the
Counsel to the President and indicated that they would like to
come brief us on a legal opinion, legal analysis that they were
preparing for another Government agency. The question that had
been posed by the Government agency fell into the--was a
question regarding the reach--
Chairman Specter. Let's be specific about the other
Government agency--CIA.
Mr. Flanigan. Sorry, Mr. Chairman. Of course, CIA. The
question posed by the CIA was whether the reach of the torture
statute--they wanted to understand what the words of the
torture statute meant and how it would be applied. The
background, as I understand it from the contact that we had
with the Department of Justice, was that the CIA believed that
it either had or shortly would have in its custody some senior
al Qaeda leadership--al Qaeda leadership that the CIA
reasonably believed would have knowledge concerning al Qaeda
operations, both past and future al Qaeda security procedures,
and al Qaeda recruiting procedures as well as the identity
perhaps of al Qaeda cell members.
In that context, and in the context of the value of that
information, the potential value of that information to the
Nation's fight against terrorism, and the need to avoid,
prevent if possible a future planned attack, the Agency asked
basically what it could do beyond sort of a normal Q&A approach
to questioning the senior al Qaeda leaders.
That contact resulted in two briefings. As I recall, both
briefings focused largely on the issue of the legal--
Chairman Specter. Briefings by whom?
Mr. Flanigan. By the Office of Legal Counsel to us.
Chairman Specter. To the White House Counsel?
Mr. Flanigan. Yes, Mr. Chairman, to then White House
Counsel Gonzales, to myself, and to some others that were
involved.
Chairman Specter. Was the CIA briefed as well?
Mr. Flanigan. No, Senator, it was not. The CIA was not
present for those briefings, as I recall.
Chairman Specter. What was the purpose of the briefings?
White House Counsel was not going to undertake any of the
interrogation.
Mr. Flanigan. Senator, the White House Counsel was neither
going to undertake the interrogation nor was it his role, or my
role, for that matter, to pass on legal analysis. That issue--
that role is committed by statute and by tradition to the
Attorney General and to the--
Chairman Specter. So then what was the purpose of the
briefing?
Mr. Flanigan. The purpose of the briefing, as I understood
it, was to keep the counsel to the President informed regarding
this issue, presumably in case it should be raised in one of
the national security-related committees that the counsel of
the President sat on.
Chairman Specter. And you were one of those briefed?
Mr. Flanigan. Yes, Mr. Chairman, I was.
Chairman Specter. Did you have a speaking part?
Mr. Flanigan. I believe my--the events are far enough in
the past that my memory is not perfect. I probably asked some
questions about the analysis. I don't recall specific questions
that I asked. I think I may have asked questions about the
statutory analysis to be sure that I understood what it was
they were after. As a former head of the Office of Legal
Counsel, my principal concern would have been to be sure that
they had the statutory analysis correct, that it sounded
correct. I obviously didn't have the time or the resources or
the role to redo the research that they were doing, but I just
needed to hear them talk about the statute to be clear that
this was something that made sense.
Chairman Specter. Was White House Counsel Gonzales present
at that briefing?
Mr. Flanigan. Yes, sir.
Chairman Specter. Those briefings?
Mr. Flanigan. Yes.
Chairman Specter. Anybody else from the White House
Counsel's office?
Mr. Flanigan. Not that I recall, Mr. Chairman.
Chairman Specter. Did you have any further participation in
the issue of interrogation tactics?
Mr. Flanigan. No, Mr. Chairman, not that I recall. Those
two briefings are the extent of my involvement, as I recall it.
Chairman Specter. Mr. Flanigan, this Committee is going to
be hearing from FBI Director Mueller tomorrow about the
activities of the FBI and high-tech purchases. It has been
widely noted about very substantial expenditures by the Bureau
without getting the kind of products that they were looking
for. What kind of activity and supervision would you anticipate
to direct at Deputy Attorney General, if confirmed, to the FBI
on matters such as those?
Mr. Flanigan. Mr. Chairman, I think a rigorous process is
necessary for procurements of this magnitude. I am not familiar
with the process that the FBI has gone through to this point. I
would anticipate that as Deputy Attorney General that I would
work with Director Mueller to be sure that the procurement
process was one that was based on real world considerations,
that took into account the availability of various options for
the type of secure, effective system that the FBI needs.
Chairman Specter. Does your experience with Tyco give you
any special expertise on these kind of procurement matters?
Mr. Flanigan. It gives me some expertise in the area of
procuring systems, yes, and it gives me a healthy skepticism
for the initial picture that you might get in a procurement
setting. You have to really drill down. We have had, at Tyco,
in the law department, have had to drill down considerably into
our needs and the capabilities of software vendors, and have
occasionally been a little disappointed in what we have
received, but I think the lesson that I have learned is that
you need to be careful and conscientious in going about a
procurement like that.
Chairman Specter. Mr. Flanigan, when you came in to see me
on the so-called courtesy visit, I raised with you the question
of Congressional oversight. And this has been a matter of some
understandable tension between the Legislative and Executive
Branch, and I referenced a letter which I had sent to Judge
Gonzales back on December 27, 2004, after his courtesy call in
anticipation of his confirmation proceedings as Attorney
General.
I want to read this to you so that it is emphatic on the
record, and so that others can hear it as well, because we are
going to be engaging in very active oversight and have already
started it. I have gotten the Attorney General's acquiescence,
but I want your acquiescence as well, that is, if you can do so
in good conscience. No coerced acquiescence here, Mr. Flanigan,
but I want to be on same wavelength with you. It will take a
couple of minutes, but will save us a lot of time.
The broad Congressional authority was summarized as follows
in a 1995 Congressional research analysis to this effect,
quote: ``On review of Congressional investigations that have
implicated DOJ or DOJ investigations over the past 70 years
from the Palmer Raids and Teapot Dome to Watergate, and through
Iran Contra and Rocky Flats demonstrates that DOJ has been
consistently obliged to submit to Congressional oversight
regardless of whether litigation is pending, so that Congress
is not delayed unduly in investigating misfeasance, malfeasance
or maladministration in DOJ or elsewhere. A number of these
inquiries spawned seminal Supreme Court rulings that today
provide a legal foundation for the broad Congressional power of
inquiry. All were contentious and involved executive claims
that Committee demands for agency documents and testimony were
precluded on the basis of constitutional or common law
privilege or policy. In the majority of instances reviewed, the
testimony of subordinate DOJ employees such as line attorneys
and FBI field agents were informally taken, and included detail
testimony about specific instances of the Department's failure
to prosecute alleged meritorious cases. In all instances
investigating committees were provided with documents
respecting open or closed cases that included prosecutorial
memoranda, FBI investigative reports, summaries of FBI
interviews, memoranda, correspondence prepared during the
pendency of cases, confidential instructions outlining the
procedures to be followed or undercover operations and the
surveillance and arrest of suspects, and documents presented to
grand juries, not protected from disclosure by Rule 6(a) of the
Federal Rules of Criminal procedures, among other similar
sensitive materials.''
That is a fair-sized statement, but it is an abbreviation.
Are you prepared to make a commitment in your job as Deputy
Attorney General that you would respect and abide by those
standards as set forth on Congressional oversight?
Mr. Flanigan. Mr. Chairman, I am aware of the Congressional
Research Service material that you were kind enough to provide
me, and I have reviewed it. I believe that I can commit without
any restraint or without any compulsion, that I will work with
you in good faith and work with the Committee in good faith to
resolve any requests that the Committee has for information.
The Congressional Research Service memo represents a view
of the Congress Research Service with respect to a particular
inter-branch topic with respect to oversight. The Department of
Justice has long articulated its own view of that. I think,
frankly, Senator, in the real world these things get worked out
and they should be worked out. There are a couple of things
that I know you would be cautious of, members of the Committee
would be cautious of with respect to prosecutorial and
investigative decisionmaking. We don't want prosecutors or
investigators to be completely free of oversight, and yet that
is a very delicate activity that they are engaged in, and to
provide oversight, to conduct oversight runs the risk of
putting too heavy a hand or thumb on the scale of the issue.
But as I said, I think real world, in my experience, these
things are always worked out. I think they can be worked out
with acrimony and with bickering, or they can be worked out in
good faith. I like to count myself on the side of good faith.
Chairman Specter. Well, Mr. Flanigan, I do not agree with
you that this is the view of CRS. I believe that this is an
accurate statement of the law. And when you talk about being
cautious, that is in the eye of the beholder, and the Committee
is not insensitive to what law enforcement means or what
investigations mean. But I do not want any misunderstanding
when we come in and we want to know about pending
investigations--and we have had these battles with the
Department of Justice before about line attorneys and about
pending investigations--I am looking for this commitment. Good
faith is something which we do not have to talk about.
As ranking Federal officials, no doubt, the Deputy Attorney
General functions with good faith, as do members of the
Judiciary Committee. But when you talk about a heavy hand, that
depends on who is monitoring the scale. I want to be sure when
we come in that you are committed to these principles. Are you?
Mr. Flanigan. Senator, I am committed to the principles
that I have outlined to you.
Chairman Specter. Not the ones you have outlined. I am
concerned about the principles I have outlined to you.
Mr. Flanigan. Senator, I can't brush away two centuries of
experience in the Executive Branch. I mean President George
Washington took a view with respect to oversight concerning,
Congressional oversight concerning the Jay Treaty. There are--
the Executive Branch has a view here. I think I have
represented that view and defended it vigorously while I was
head of the Office of Legal Counsel, and yet I still return,
Mr. Chairman, to the point that if we are--as you say, if as
senior Federal officials we can behave reasonably and trust in
each other's good faith that we can get you everything you
need, everything you require in the oversight context.
Chairman Specter. I will come back to this. I have
overstayed my welcome. This is the longest I have questioned
anybody.
Senator Leahy. I found it fascinating because Mr. Flanigan
said they have been trying to get us information, and the
remarkable change over the last 4\1/2\ years, because many of
us, Republicans and Democrats on this Committee, have asked for
information along the lines of what the Chairman has talked
about, and the Department of Justice has just stonewalled, they
have not responded, not responded.
Mr. Flanigan. Senator Leahy, I commit to you that I will
respond.
Senator Leahy. I should say there has been some response,
but basically the response is, go take a flying leap, but want
something a little bit more than that.
Chairman Specter talked about the FBI and how you would be
involved, What responsibility does the Attorney General and
Department of Justice have for the FBI in your view?
Mr. Flanigan. Senator, the organization of the Department
places the Director of the FBI in a reporting relationship with
the Deputy Attorney General, who reports to the Attorney
General. The FBI has always operated with some degree of
independence and flexibility within that structure, but I think
it is fair to say that as a matter of organization and as a
matter of supervision and responsibility, the FBI falls under
the Deputy Attorney General's jurisdiction.
Senator Leahy. You do not think that--I recall once at a
meeting with J. Edgar Hoover when I was a young prosecutor,
seeing the organization which basically was the Director of the
FBI here, lines going down to the President and down to the
Attorney General. I would assume that without trying to
resurrect the ghost of--you do not agree with that?
Mr. Flanigan. I don't agree with that characterization.
Director Mueller is a former colleague of mine in the
Department of Justice. We were both Assistant Attorneys General
at the same time. I have great respect for him. I think it's
reciprocated. I have--I don't think one gets very far by
necessarily command and control tactics with the FBI, but I
think you do have to establish the, for lack of a better term,
Senator Leahy, the civilian control over the FBI.
Senator Leahy. So if the FBI is still lagging behind in the
ability of translating information that may be vital to the
security of the United States, the Justice Department bears
some of the responsibility for that?
Mr. Flanigan. Yes, Senator. The Justice Department is the
ultimate--holds the ultimate responsibility.
Senator Leahy. And the same with the--I realize this was
not on your watch, nor on the current Attorney General's watch,
so I can ask you these questions objectively, I would hope--on
the virtual case file, the fiasco, the millions upon millions
upon millions of dollars wasted in that computer fiasco that
the Justice Department bears some responsibility there.
Mr. Flanigan. I intend to work very hard to make sure that
that is corrected.
Senator Leahy. I think everybody in the FBI would like to
have it corrected I think.
Mr. Flanigan. I'm sure they would.
Senator Leahy. I do not think there is anybody there from
the Director on down that takes much joy in knowing that there
are things they did not translate that might have saved us from
9/11 or things that--or computers that are so far behind. I
recall shortly after 9/11 with the FBI explaining how they were
sending out flying squads of agents to find out who might have
lived along--preliminary thing, who lived on certain streets
and whatnot, very proud of that. I suggested, ``Well, did you
just at least Google the addresses first?'' And I got this
blank stare back. We also found they had to fly, charter planes
and fly pictures of the suspected hijackers to their various
offices. They could not e-mail them. I told them I would be
happy to bring it home and e-mail it from the computer in our
kitchen if that would make it any easier for them.
One of the most troubling features I mentioned earlier, the
August 1st, 2002 Office of Legal Counsel memo, the so-called
Bybee memo, was a section that asserted unfettered Executive
power. The memo argues that the President, acting under his
Commander in Chief authority, could override the torture
statute, could immunize from prosecution Federal officials who
commit torture on his order.
Now, this came up during Attorney General Gonzales' hearing
last winter, and he said, and I am quoting him now, ``I don't
recall today whether or not I was in agreement with all of the
analysis. I don't have a disagreement with the conclusions then
reached by the Department.''
So let me ask you your view. Does the President, acting
under his Commander in Chief authority, have the power to
override the laws passed by Congress and immunize from
prosecution Federal officials who violate those laws under his
order?
Mr. Flanigan. Thank you, Senator Leahy, for giving me the
opportunity to clarify how I believe on that.
Senator Leahy. Sure. I thought you might like that.
Mr. Flanigan. But I have--I think I'd like to start by
responding in this way. The specific use of that argument in
the Office of Legal Counsel memorandum from August 2002 was, in
my view, inappropriate in a sort of sophomorish way. It was a
kitchen sink argument that was thrown in. As I read the memo
now, it looks like a kitchen sink argument that was thrown in
to basically be a belt and suspenders argument. It was
unnecessary, it was useless. The President had already said
that we would not torture, and if the President says we're not
going to use torture, it is inappropriate for the Office of
Legal Counsel to gratuitously insert an argument into a
memorandum that says, well, we could if you told us to, if the
President told us to.
Now, more generally--I'm sorry, Senator.
Senator Leahy. Well, I was going to say now that you have
answered it your way, go back to my original question: does the
President, acting under his Commander in Chief authority, have
the power to override the laws passed by Congress and immunize
from prosecution Federal officials who violate the laws in his
order? Does he or does he not?
Mr. Flanigan. You know, Senator, that's a question where--
in the first place, I don't think we get there under the
current circumstances.
Senator Leahy. I do not care whether we get there in the
current circumstances. Does he have that power? Is he above the
law, in other words?
Mr. Flanigan. The President is never above the law.
Senator Leahy. Can he place other people above the law by
immunizing them if they violate the laws under his order?
Mr. Flanigan. No.
Senator Leahy. I--
Mr. Flanigan. Happy to elaborate on that if you'd like.
Senator Leahy. Feel free. You are more direct on it than
the Attorney General was in his confirmation hearing. Go ahead.
Mr. Flanigan. Senator, there are certain aspects of the
President's Commander in Chief power, which are, I think,
uniquely entrusted under the Constitution to the President. If
the Congress, for example--obviously this is a somewhat
ridiculous example, but if the Congress told the President that
he can only roll tanks right and never left, or if the Congress
told the President they could only attack at night, couldn't
attack during the day, I think that intrudes upon the
President's core Commander in Chief power, and that law would
be unconstitutional as applied to the President's orders as
Commander in Chief.
With respect to this particular statute--
Senator Leahy. There are specific things Congress has under
the Constitution, only the Congress can declare a war.
Mr. Flanigan. I'm sorry, Senator. Could you repeat that?
Senator Leahy. I mean the Congress has certain powers under
the Constitution, for example, to declare war.
Mr. Flanigan. Yes. Congress certainly does have a very
important role in the declaration of war, and in the days
following 9/11 it was my privilege to be up here in this locale
talking I believe with members of your staff--
Senator Leahy. I think I recall.
Mr. Flanigan.--as well as members of other staff in
Congress about the authorization for the use of military force.
Senator Leahy. And I recall we were having the final
conference on the PATRIOT Act.
Mr. Flanigan. I recall that very well, Senator.
Senator Leahy. Where Republican leader Armey and I wanted
sunset provisions, and you made a very strong case why we
should not have them, but guess what? We got them.
Mr. Flanigan. Senator, if I lost that one, I'll still make
the argument that sunsetting--
Senator Leahy. No, you were very strong in your argument.
Mr. Flanigan. Sunsetting powers given to Federal law
enforcement officials, is a signal to those Federal law
enforcement officials that maybe we're not really serious
about--
Senator Leahy. No, no, not at all. That was--I think
Speaker Hastert, Congressman Armey and I, not normal political
bedfellows, made it very clear we were not sending anybody a
signal that we were not serious, we were sending a very strong
signal that we expected the administration to be responsive to
real oversight, and also very clear signals to both the House
and the Senate that we fully expected them to do the oversight
necessary, because if you have a sunset it kind of puts
pressure on everybody to prove that the law is not working. I
remember those times very, very well. I was very involved with
the PATRIOT Act and the drafting of it, just as Senator Specter
and I and others were in the drafting a new PATRIOT Act which
actually passed a very diverse Committee unanimously last week.
But as one who had his first career in law enforcement, I
take law enforcement matters very, very seriously, and this was
to also make sure that we in the Congress, both parties, took
our responsibility very seriously.
Mr. Flanigan. And, Senator, I take oversight very seriously
and the need for us to have an accountability with respect to
the use of those powers. I think we've now completely replayed
the argument that we had at the time.
Senator Leahy. Let me ask you a couple things just from the
press accounts--and I am quite over my time too, I apologize--
but press accounts suggest you discussed specific techniques
that might be used by members of the military or intelligence
agencies in interrogating prisoners. Did you advocate for or
against any of the more severe techniques such as pain,
suffocation?
Mr. Flanigan. I did not, Senator. That was not my role. As
I responded to Senator Specter, to Chairman Specter, I knew the
difference between the role of the White House Counsel's Office
and the Office of the Counsel of the President. It was not part
of the discussion. I was not called upon to make--to urge any
particular view with respect to any particular method of
questioning.
Senator Leahy. Do you think that water boarding, in which
the prisoner is made to believe he is drowning, is that an
acceptable interrogation technique?
Mr. Flanigan. Senator, I am at a disadvantage here because
I understand that the discussion of methods that took place in
that meeting is still classified, and I can't discuss it.
Senator Leahy. I am not asking you about that meeting, I am
just asking you is water boarding a acceptable interrogation
technique?
Mr. Flanigan. I don't know--
Senator Leahy. For people operating under the--people
operating as agents of the United States?
Mr. Flanigan. I don't know enough about the technique,
Senator.
Senator Leahy. You never described water boarding to a
reporter, as to what it was?
Mr. Flanigan. I have, I have a basic understanding as to
what water boarding is, but I don't know the effects of it, I
don't know the physiological of psychological impact that water
boarding may have long term.
Senator Leahy. Based on the description you made of water
boarding to a reporter, do you think it is an acceptable
technique to be used by an agent of the United States?
Mr. Flanigan. I don't know, Senator. I need to know more
about the effects of water boarding. And it was not part of
that discussion for us to make that decision. That was not what
was at stake in those two briefings that I described for the
Chairman.
Senator Leahy. If I submit other questions for the record,
will you answer them?
Mr. Flanigan. Yes, Senator.
Senator Leahy. Anybody can work with you on the answers,
but I want you to review the answers, so when they come here we
know that they are your answers, and not as we have now found,
that some within the Justice Department at the highest levels
say when under oath in deposition that the answers they submit
to us do not come from them.
Mr. Flanigan. Senator, anything that goes in over my name
will be reviewed and--
Senator Leahy. I appreciate that and I admire you for it.
Thank you.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Leahy.
Senator Hatch.
Senator Hatch. Mr. Flanigan, you recognize the role of the
Congress, vis-a-vis the role of the Justice Department?
Mr. Flanigan. Yes, Senator.
Senator Hatch. You realize that we do have to do oversight
up here, and that you, as I understand it, have fully said that
you will cooperate fully as long as it is within the law and
within the constitutional constraints of the law.
Mr. Flanigan. Yes. I will do that. And I recognize the
value of oversight also in keeping us on mission, us, assuming
I am confirmed to this role, keeping the Department on its
mission, keeping it doing the things that it's supposed to do,
and doing them well.
Senator Hatch. With regard to these memoranda that have
caused such an uproar, you did not prepare them?
Mr. Flanigan. No, Senator, I did not.
Senator Hatch. You did not advise on them?
Mr. Flanigan. No.
Senator Hatch. You did not really ask for them, did you, or
did you--
Mr. Flanigan. No, I did not make a request for that legal
advice at all.
Senator Hatch. Is that part of your responsibility, to--
Mr. Flanigan. It was part of my responsibility from time to
time to request legal advice from the Department of Justice.
That is not what happened in this case. As I think I mentioned
to Chairman Specter, the request for this advice came from--
directly to the Office of Legal Counsel from the CIA. The first
that I heard that the question had been asked was when we were
called by the Office of Legal Counsel and a briefing was
proposed.
Senator Hatch. When you served in these respective
positions, did you do your very best to be honest and decent
and honorable in every way?
Mr. Flanigan. Yes, I did.
Senator Hatch. I think everybody who knows you knows that
that is a hallmark of your life.
Mr. Flanigan. I hope so, Senator. It's what I strive for.
Senator Hatch. That is all we can ask of you up here as
well. Now, the Justice Department has a wide variety of
responsibilities and authorities, right?
Mr. Flanigan. Yes.
Senator Hatch. One of the most important, of course, I
criminal justice. You have been involved in some criminal
cases, mainly white collar cases?
Mr. Flanigan. I have, Senator. When I was--let me say that
my involvement goes back to--in criminal matters goes back to
my time as Assistant Attorney General, when I served as a
member of Attorney General Barr's senior management or senior
leadership team for the Department as a whole, a group in which
we frequently had discussions concerning the various matters,
the criminal matters that were pending in the Department. I
also served in what I would say is an adjunct role as counsel
to the Deputy Attorney General, and in that regard, in that
role came into frequent discussion about matters involving
criminal prosecutions in the Department.
Senator Hatch. So--go ahead.
Mr. Flanigan. Later as a white collar practitioner, white
collar criminal practitioner, as it's called, I was involved in
both criminal investigative and other matters. And then in
the--when I was in the White House Counsel's Office, of course,
I had a pretty thorough exposure to national security law, a
refresher course in national security law. And then I would
just point out that my experience at Tyco International has
largely been in implementing compliance programs in cooperating
extensively with the Manhattan District Attorney's Office in
their prosecution of Tyco's former leadership. It's been a real
good opportunity to get exposure to the criminal law in the
white collar area.
Senator Hatch. How many years did you serve in the Federal
Government in these respective positions in the Justice
Department and the White House?
Mr. Flanigan. I believe five, Senator.
Senator Hatch. Five years. So you served in the Justice
Department as an Assistant Attorney General?
Mr. Flanigan. Yes.
Senator Hatch. Among other things. Then you served in the
White House as Associate White House Counsel, Deputy Associate
White House Counsel.
Mr. Flanigan. Deputy White House Counsel.
Senator Hatch. I see. I am very impressed by you and your
family. You are leaving a very prestigious private sector
general counselship in one of the large corporations of
America, where I am sure you make a considerable amount of
money compared to what you will make in this job as Deputy
Assistant Attorney General of the United States. I would just
like to know why would you leave a job like that, where you can
support this tremendous family of yours a lot better than you
can down there at Justice? Why would you do that, to come to
work for the U.S. Government, at really what is a
disadvantageous pay rate?
Mr. Flanigan. Senator Hatch, I note that my wife is not
sworn, so the tears that she's crying right now over our
departure from Tyco are not on the record, but I really
believe--and I have taught, I have taught my own children, I've
taught--when I've had a chance to speak to other groups of
young people, I've tried to consistently deliver the message
that people need to be ready to do what you do, what Chairman
Specter does, and what many other members--the other members of
the Committee do, and that is to be willing to serve. And for
better or for worse, I believe it's my time to serve again.
The Attorney General asked me if I would do this. The
President has nominated me to do this, and if confirmed by this
Committee, I hope to do a good job, to render a good account of
myself, and to provide the service, and hopefully then I'll
return to the private sector and continue my other primary
obligation of supporting my family.
Senator Hatch. Part of it is you love the country.
Mr. Flanigan. Yes, Senator, I do.
Senator Hatch. I see my time is up, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Hatch.
Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman.
Mr. Flanigan, thank you for being here today, and I have a
few questions to ask.
News reports have suggested that you, along with an aide to
Vice President Cheney, drafted the order authorizing military
commissions. It was signed by the President in November of
2001. And according to news reports, the drafting process was
conducted primarily in secret, and a variety of Government
experts were actually frozen out of that process, including
military lawyers and State Department officials who had years
of expertise.
In many instances it said those experts disagreed with the
ultimate decision to go forward with the military commission
process that failed to provide defendants with basic due
process rights.
Setting aside any disagreements we may have about the
military commission process itself, please explain if you
would, why as a decisionmaker, you did not listen to experts
from the military and from other agencies in the process of
making this very significant decision?
Mr. Flanigan. Senator, thank you for that opportunity to
explain my role here. I think we did have the benefit of
experts in the military, in the State Department. There was a
process that was going on through the National Security Council
focused on the development of a military commission approach,
and the process was just taking too much time for the purposes
of my clients in the White House.
And I was asked to participate in this process. I tried to
draw on the materials that had been pulled together by this
group of people from the military and from other areas that had
been working under the National Security Council. I believe
that we accomplished in the end something which was in
accordance with their views largely in terms of what we would
see as a military commission process.
Now, there's no doubt that the military commission approach
is something that's well established in our Nation's history.
Presidents from George Washington and many in between George
Washington and Franklin Roosevelt, used the military commission
process in various settings.
I think that the military--the President's military
commission order that establishes the commission, together with
the implementing regulations for that order that are
contained--that were promulgated by Secretary Rumsfeld, create
a system which is both balanced and fair, one that takes into
account the serious national security concerns that would arise
if, for example, Osama bin Laden were tried in a United States
Federal District Correct, and it balances those along with the
rights of the defendant. The military commissions specify a
fair trial, access to counsel, both military and civilian
counsel. I think there's a lot--
Senator Feingold. I tell you as I recall, if I recall
correctly, that the initial product that apparently your--as
you said, your client asked you to come up with very quickly
was deeply flawed, and led to an enormous amount of criticism,
including by many members of this Committee, and that
subsequently there were changes made. I understand the needs of
providing something in a timely manner to a client, but I think
the fact that the concerns of those people that I mentioned
were not considered at the beginning, actually made the whole
process probably take a little bit longer.
Let me move on to another question. I understand in 2001,
as we have already talked about, you were heavily involved in
the development and drafting of the USA PATRIOT Act. The 9/11
Commission report noted the controversy over many of the
provisions of the PATRIOT Act, and indicated that there should
be full and informed debate over the Act.
In fact, the report made the following recommendation.
Quote: ``The burden of proof for retaining a particular
Government power should be on the Executive to explain (A) that
the power actually materially enhances security; and (B) that
there is adequate supervision of the Executive's use of the
powers to ensure protection of civil liberties. If the power is
granted, there must be adequate guidelines and oversight to
properly confine its use.''
Do you agree with the Commission's recommendation, and as
Deputy Attorney General will you pledge to do everything you
can do to facilitate a full and informed debate by cooperating
with Congress when it asks for information to perform its
oversight, and will you work with us to develop adequate
guidelines to properly confine the Executive's use of its new
powers?
Mr. Flanigan. Senator, I agree in large measure with
everything you have said. I would--I think that ongoing
oversight of the use of the authorities that are conveyed or
that are covered in the PATRIOT Act is a very important role
for this Committee, for the Congress to play.
Obviously, the PATRIOT Act deals with the collection in
part of national security information, and so we have to be
careful about how we handle that information, how we share it.
As an outsider, I confess I really don't, am not completely
conversant with all the issues regarding sharing that
information, but I pledge that I will work with the Committee
to make sure that you have the information you need to make
informed decisions regrading the future of those powers.
Senator Feingold. Thank you, Mr. Flanigan.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Feingold.
Senator Durbin.
Senator Durbin. Thank you, Mr. Chairman.
Mr. Flanigan, thank you for meeting with me earlier in my
office. I am sorry that I was not here to see if you were
successful in recalling the names of all of your children and
family. You told me that it would be a challenge for you and--
Mr. Flanigan. Mrs. Flanigan spared me that embarrassment.
Senator Durbin. That is great. Thank you for that.
Let me say right off the bat there is one thing that Mr.
Flanigan has said before this Committee which I think we ought
to take to heart. When he testified in 1977 this is what he
said--1997. He said, extraordinarily diligent--this Committee
should be extraordinarily diligent in examining the judicial
philosophy of potential nominees. I would reverse the
presumption and place the burden squarely on the judicial
nominee to prove that he or she has a well thought out judicial
philosophy. Such a burden is appropriately borne by one seeking
life tenure to wield the awesome judicial power of the United
States.
I think that is a very profound statement and I think it is
a good guidance for this Committee in considering judicial
nominees. And though we may disagree on a few things I think--I
hope you are not going to recant, but I think that was very
good guidance for this Committee when it considers judicial
nominees.
Mr. Flanigan. Thank you, Senator. I will not recant that. I
think that inquiry into judicial philosophy, by which I mean
inquiry into how a judge discovers law, where he or she looks
for the substance of law, is very important and I think it is a
key functions that this Committee has. I have been privileged
to be on the periphery of two Supreme Court confirmations
involving this committee. I have seen how this Committee
discharges its duties and I am confident that my good friend
and former colleague in the Department of Justice, John
Roberts, will not suffer under the analysis that I laid out.
Senator Durbin. Thank you very much. Let me go directly to
the issue we talked about the most in my office and that was
the whole torture memos at the Department of Justice, the
change in the interrogation techniques of prisoners and
detainees. I think I came to a better understanding of the role
that you played, but I want to ask again and for the record, is
it your belief that it is the policy of the United States not
to use torture, cruel, degrading or inhumane treatment in the
interrogation and treatment of any prisoners in our control,
regardless of their status?
Mr. Flanigan. Senator, with respect to torture, let me take
that in order. I am completely in agreement that torture cannot
be the policy of the United States. It is an abhorrent practice
and it is not something that we should do, and our President
has been very clear about that.
With respect to the other elements of your statement which
I think are drawn from the Geneva Convention, as a lawyer,
Senator, I am not sure what all of those means. There are
perhaps international lawyers who believe they are certain what
those mean. But I think I have some hesitancy in signing on
without understanding what a particular phrase means to some of
the phrases.
I would say that we have--let me say this,. the President
has said that we will not treat people inhumanely. That is part
of his determination at the time that--I believe in February of
2001. So I guess I would take very seriously any allegation or
suggestion that we were treating anyone inhumanely.
Senator Durbin. I would like you to get back to me, if you
could fill in some of the answer that you have given, after you
have had time for reflection. I would like to ask you
specifically, in your personal point of view, do you consider
mock executions to be inhumane treatment?
Mr. Flanigan. Senator, I am hesitant to comment on specific
methods of questioning, in part because IO am burdened with
some knowledge that is classified information and I do not want
to inadvertently step over that line.
Senator Durbin. Let me spare you then, because I do not
want you to step over it either. Let me send you written
questions and as far as you can, tell me your personal point of
view. I will refer to several interrogation techniques which
have been controversial, and without disclosing any classified
information, I am looking for your personal point of view as to
whether you consider them to be cruel, degrading and inhumane.
I will give you the time to reflect on that, if you would like
to. I do not want to put you on the spot on that.
Mr. Flanigan. Thank you, Senator.
Senator Durbin. I would also like to ask you about some
testimony before this Committee that goes back a few years as
well, about how we should view and treat judges. I asked you
about this in my office, and so the record is clear, in
Congressional testimony before a Subcommittee of Judiciary you
suggested ``a frank discussion in the political sphere about
impeaching judges might have a salutary effect of prompting
judges to put aside their own policy preferences and adhere to
the law.'' You commented on it in my office. I would like to
give you a chance to comment on that here.
Mr. Flanigan. Thank you, Senator. That sentence certainly
taken in isolation is one that I cannot subscribe to. I
believe--after our meeting, Senator, I went back and looked at
that testimony. I believe the sentence before that was an
attempt to develop context, and I have to say that even after
reading it in context that I still would say that that was an
overstatement, to be sure, and inappropriate to suggest that we
should threaten Federal judges as a general matter with
impeachment. The sentence before that, I believe,. talks about
judges who--and I cannot remember the language offhand.
Senator Durbin. I want to read it for the record so that
you do have benefit of putting it in context, if you believe
this helps.
It is, of course, possible that a judge could so abuse the
judicial power through willful misconstruction of the law that
the judicial oath would be violated. Then you went to say, a
frank discussion in the political sphere of the possibility of
removal in such cases may have the salutary effect of prompting
judges to put aside their own policy preferences and adhere to
the law.
Mr. Flanigan. Senator, I have to, as I believe very
sincerely in the role of Federal judges and the need that we
have. As you and I discussed in your office today, Federal
judges are defenseless. They cannot defend themselves against
criticism because they cannot generally speak out on issues. At
the same time, they have life tenure so they should be immune
to a little bit of criticism. But I do not believe that we
should use impeachment as a threat, generally, to have judges
toe the line. I tried in that comment, I think. inartfully to
say that in those most egregious cases where a judge willfully
violates an oath of office, then--and that is my--
Senator Durbin. Thank you.
Mr. Chairman, would you spare me time for one more
question?
Chairman Specter. Yes. Proceed, Senator Durbin.
Senator Durbin. Thank you.
There was a press report this morning that I would like you
to clear up, in the Chicago Tribune, and it relates to your
role as general counsel of Tyco, and the fact that--the
article, which may or may not be accurate--I want to give you
your chance to tell you story on this--suggested that your had
some supervisory authority over the Greenberg, Traurig law
firm, and particularly Jack Abramoff, who has been a very
controversial figure in Washington. Could you tell us what your
relationship was to him and his lobbying activities?
Mr. Flanigan. Thank you, Senator, I appreciate the chance
to clarify that. When we arrived at Tyco International as part
of the new management team, I arrived in December 2002, there
was very little in the way of infrastructure of any kind at the
corporate level. Most of the corporate functions needed to be
rebuilt and one of those was the government relations
functions. One of the responsibilities that I received early on
was to drill down into the government relations function and
see what was there, what could be salvaged, and what our
challenges were as a company.
As you might suspect, Senator, we had some reputational
issues at the time with our former chairman, and former CFO,
and former general counsel all being under indictment at the
time. So I took stock with the then head of our government
affairs function of who was it that we had out there that was
doing government affairs work for us, and who could step into
the breach quickly to help us try to turn this awful image that
we had around, to start to reflect the positive story of this
new management team committed to ethics, committed to
compliance that we had.
So I met with several who had been providing services for
Tyco. One of the lobbyists that Tyco had hired previously was
the Greenberg, Traurig firm. I met with the firm. As you might
imagine, we are a big account so they did a dog and pony show
and they brought in the person that they said should be in
charge of the account, Jack Abramoff. I had not met Jack
Abramoff before then, had never run across--
Senator Durbin. When was this? What was the approximate
date when that meeting took place?
Mr. Flanigan. Senator, I would have to check on that and
get back to you.
Senator Durbin. Was it a year ago or--
Mr. Flanigan. No, it would be in the spring of 2003. So
basically we decided, for a variety of reasons including
considerations of changing horses in midstream and the amount
that Greenberg had already invested in learning about Tyco, to
continue on with that relationship.
We ultimately let the Greenberg, Traurig firm go, as they
say, following the revelations concerning Jack Abramoff's
conduct, and we have issues in the nature of claims involving
the Greenberg firm which are pending which are, I believe,
covered by an attorney-client privilege that is not mine to
waive. But that is our relationship.
Senator Durbin. Did you supervise his activities during the
period he worked for Tyco?
Mr. Flanigan. For a period of time after our then head of
government affairs left the company and before we hired our new
head of government affairs, Regina Harsani, I was the one the
who was responsible on a day to day basis for supervising his
activities.
Senator Durbin. Thank you very much, and thank you, Mr.
Chairman.
Chairman Specter. Thank you, Senator Durbin.
Mr. Flanigan, I want to pursue our understanding of
oversight. Candidly, I am not satisfied with your answer. I do
not think it was useful to talk about executive-legislative
conflict going back to George Washington. I want to have an
understanding as to where we are going. I think I have that
understanding with the Attorney General, and I have already
commented to you about the exchange I had with him at his
confirmation hearing.
But I want to come to agreement--I want to know what you
are understanding is of the law. I do not believe that there
are variable views of it. I think oversight has been
articulated by the Supreme Court, and that is the
determinative, as between the Department of Justice and the
executive branch and the Senate. So I am going to direct our
staffers to talk to you and I am going to want a response in
writing, because this is an important question as to my vote on
your nomination.
Let me pursue one more question with you, and that is the
question of procedures at Guantanamo. The hour is growing late
and we have a lot of people who have been here for a long time,
more than an hour and a half at this point. This Committee has
prepared legislation on procedures. We have stayed away from
the issue of interrogation. We have stayed away from the issue
of rendition. We have stayed away from matters, except those
within the purview of the Judiciary Committee, on procedures,
representation of counsel, determination of status, that sort
of thing. And I would like you to take a look at the
legislation which we have prepared and give me your view on it.
I know that in conversations with the Department of Defense
the matter has been bucked to the White House. We have talked
to ranking officials in the White House. I would be interested
to know your views as to whether you think the Judiciary
Committee has a role here, and whether it would be useful to
have some standards set forth. We are trying to be helpful to
the Administration. The Constitution is explicit in saying that
the Congress has the authority to set these rules. But we are
very cognizant of the difficulties of Congress speaking while
the country it at war. But if you take a look at that
legislation and comment on it, I would appreciate it.
Mr. Flanigan. I will be happy to do that, Mr. Chairman.
Chairman Specter. Thank you.
Senator Hatch, anything further?
Senator Hatch. No, Mr. Chairman. I am fully supportive of
this man. I know him very well. I know he is an honorable,
decent, hard-working man just like we should have in our
Government and certainly at the Justice Department, so I fully
support him.
Chairman Specter. Thank you very much, Senator Hatch.
And thank you, Mr. Flanigan.
Mr. Flanigan. Thank you.
[The biographical information of Mr. Flanigan follows.]
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Chairman Specter. Thank you all and that concludes our
hearing.
Before closing the record I want to make a request for
unanimous consent to include a copy of this letter from me to
Judge Gonzales dated December 27, 2004 and make it a part of
the record. That does conclude our hearing.
[Whereupon, at 5:30 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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