[Senate Hearing 111-695, Part 1]
[From the U.S. Government Publishing Office]
S. Hrg. 111-695, Pt. 1
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
----------
FEBRUARY 5, FEBRUARY 25, MARCH 10, and APRIL 1, 2009
----------
Serial No. J-111-4
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PART 1
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Printed for the use of the Committee on the Judiciary
S. Hrg. 111-695, Pt. 1
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
FEBRUARY 5, FEBRUARY 25, MARCH 10, and APRIL 1, 2009
__________
Serial No. J-111-4
__________
PART 1
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
61-992 PDF WASHINGTON : 2010
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20402-0001
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin ARLEN SPECTER, Pennsylvania
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York JON KYL, Arizona
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
BENJAMIN L. CARDIN, Maryland LINDSEY O. GRAHAM, South Carolina
SHELDON WHITEHOUSE, Rhode Island JOHN CORNYN, Texas
RON WYDEN, Oregon TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
Bruce A. Cohen, Chief Counsel and Staff Director
Nicholas A. Rossi, Republican Chief Counsel
C O N T E N T S
----------
WEDNESDAY, FEBRUARY 5, 2009
STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 209
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 3
January 28, 2009, letter..................................... 237
PRESENTER
Warner, Hon. John, a former U.S. Senator from the State of
Virginia presenting David W. Ogden, Nominee to be Dupty
Attorney General............................................... 4
STATEMENT OF THE NOMINEE
Ogden, David W., Nominee to be Deputy Attorney General U.S.
Department of Justice.......................................... 7
Questionnaire................................................ 44
QUESTIONS AND ANSWERS
Responses of David W. Ogden, to Questions submitted by Senators
Coburn, Grassley, Kyl, Sessions, Specter....................... 104
SUBMISSIONS FOR THE RECORD
Allen, Ernie, President & CEO, National Center for Missing &
Exploited Children, letter..................................... 159
Alliance Defense Found, Defending our First Liberty, letter...... 160
American Psychological, Norman B. Anderson, Ph.D., Chief
Executive Officer.............................................. 166
Anti-Defamation Leaque, Glen S. Lewy, National Chair, New York,
New York, letter............................................... 168
Bellinger, John B., III, 4026 North 25th Street, Alrlington,
Virginia, letter............................................... 170
Blum, Jeffrey M., Attorney-at-Law, New York, New York, letter.... 171
Brand, Rachel L., Wilmer Cutler Pickering Hale and Dorr LLP,
Washington, D.C, letter........................................ 176
Brinkmann, Beth S., Morrison & Foerster, LLP, Washington, D.C.,
letter......................................................... 177
Brown, Reginald J., Wilmer Cutler Pickering Hale and Dorr LLP,
Washington, D.C, letter........................................ 178
Campbell, Nancy Duff, Co-President and Marcia D., Greenberger,
Co-President, National Women's Law Center, Washington, D.C.,
letter......................................................... 179
Cappuccio, Paul T., Time Warner Inc, New York, New York, letter.. 180
Cooney, Manus, Potomac, Maryland, letter, letter................. 181
Community Anti-Drug Coalitions of America (CADCA), Arthur T.
Dean,, Major General U.S. Army, Retired, Chairman and CEO,
Alexandria Virginia, letter.................................... 182
Concerned Women for America's (CWA), Wendy Wright, President,
Washington, D.C., letter....................................... 183
Eagle Forum, Colleen Holmes, Executive Director, Alton, Illinois,
letter......................................................... 186
Family Research Council (FRC), Thomas McClusky, Vice President
for Government Affairs, Washington, D.C., letter............... 187
Federal Law Enforcement Officers Association, J. Adler, National
President, Lewisberry, Pennsylvania, letter.................... 188
Frederick, David C., Kellogg, Huber, Hansen, Todd, Evans & Figel,
P.L.L.C, Washington, D.C., letter.............................. 190
Gansler, Douglas F., Attorney General, State of Maryland,
Baltimore, Maryland, letter.................................... 191
Geller, Kenneth S., Mayer Brown LLP, Washington, D.C., letter.... 192
Gerson, Stuart M., January 22, 2009, letter...................... 193
Gorelick, Jamie S., Wilmer Cutler Pickering Hale and Dorr LLP,
Washington, D.C., letter....................................... 194
Gregoire, Christine O., Governor, State of Washington, Olympia,
Washington, letter............................................. 195
Harris, Jo Ann, Attorney at Law, New York, New York, letter...... 196
Horowitz, Michael E., Cadwalader, Wickersham & Taft LLP,
Washington, D.C., letter....................................... 197
Hoyt, Robert F., February 4, 2009, letter........................ 198
Judge Advocate General, January 22, 2009, letter................. 200
Keisler, Peter D., Sidley Austin, LLP, Washington, D.C., letter.. 203
Lamm, Carolyn B., White & Case, Washington, D.C., letter......... 204
Leadership Conference on Civil Rights, and undersigned
Organizations, Washington, D.C., letter........................ 206
Leary, Mary Lou, The National Center for Victims of Crime,
Washington, D.C., letter....................................... 208
Lee, Bill Lann, Lewis, Feinberg, Lee, Renaker & Jackson, P.C.,
Attorneys at Law, Oakland, California, letter.................. 211
Levin, Daniel B., White & Case, Washington, D.C., letter......... 213
Kerlikowske, Gil, President, Major Cities Chiefs Association,
Seattle, Washington, letter.................................... 214
McCartney, Kevin R., Senior Vice President Government Relations,
Washington, D.C., letter....................................... 215
Miller, Thomas J., Attorney General, Des Monies, Iowa, letter.... 216
National Association of Police Organizations, Inc., William J.
Johnson, Executive Director, Alexandria, Virginia, letter...... 217
National Congress of American Indians, Jacqueline Johnson Pata,
Washington, D.C., letter....................................... 218
National District Attorneys Association, Joseph I. Cassilly,
President, Alexandria, Virginia, letter........................ 219
National Fraternal Order of Police, Chuck Canterbury, National
President, Washington, D.C., letter............................ 220
National Narcotic Officers' Associations Coalition, Ronald E.
Brooks, President, West Covina, California, letter............. 221
National Sheriffs' Association, David A., Goad, Sheriff,
President, and Aaron D. Kennard, Executive Director,
Alexandria, Virginia, letter................................... 222
Ogden, David W., Nominee to be Deputy Attorney General U.S.
Department of Justice, statement............................... 223
O'Neil, Catherine M., Associate Deputy Attorney General,
Washington, DC:
July 25, 2005, letter........................................ 225
July 25, 2005, letter........................................ 226
Partnership for a Drug-Free America, Stephen J. Pasierb,
President and CEO, New York, New York, letter.................. 227
Patrick, Deval L., Governor, Milton, Massachusetts, letter....... 228
Phillips, Carter G., Sidley Austin LLP, Washington, D.C., letter. 229
Police Executive Research Forum, Wexler, Chuck, Executive
Director, Washington, D.C., letter............................. 230
Price, Daniel M., January 22, 2009, letter....................... 231
Religious Alliance Against Pornography, Cardinal William H.
Keeler, Archbishop Emeritus of Baltimore, Rev. Jerry R. Kirk,
Co-Chair, and Rich Schatz, Executive Committee, Cincinnati,
Ohio, joint letter............................................. 233
Robinson, James K., Cadwalader, Wickersham & Taft LLP,
Washington, D.C., letter....................................... 235
Steggerda, Todd, WilmerHale, Washington, D.C., letter............ 238
Students for Life of America, Hawkins, Kristan, Executive
Director, and miscellaneous companies, letter.................. 240
Taranto, Richard G., Farr & Taranto, Washington, D.C., letter.... 244
Terwilliger, George J., White & Case, Washington, D.C., letter... 245
Thompson, Larry D., Senior Vice President, Government Affairs,
PEPSICO, Purchase, New York, letter............................ 247
Troy, Daniel E., Senior Vice President and General Counsel,
GlaxoSmithKline, Philadelphia, Pennsylvania, letter............ 248
Warner, Hon. John, a former U.S. Senator from the State of
Virginia....................................................... 249
Warner, Hon. Mark, a former U.S. Senator from the State of
Virginia....................................................... 251
Waxman, Seth P., WilmerHale, Washington, D.C., letter............ 252
Webb, Hon. Jim, a U.S. Senator from the State of Virginia........ 253
Wells, H. Thomas, Jr., Maynard Cooper & Gale PC, Attorneys at
Law, Birmingham, Alabama, letter............................... 254
Zubler, Todd C., Wilmer Hale, Washington, D.C, letter............ 255
----------
TUESDAY, FEBRUARY 25, 2009
STATEMENTS OF COMMITTEE MEMBERS
Page
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 257
prepared statement........................................... 439
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 474
PRESENTERS
Bayh, Hon. Evan, a U.S. Senator from the State of Indiana
presenting Dawn E. Johnsen, Nominee to be Assistant Attorney
General, Office of Legal Counsel, Department of Justice........ 259
STATEMENT OF THE NOMINEES
Johnsen, Dawn E., Nominee to be Assistant Attorney General Office
of Legal Counsel, Department of Justice........................ 261
Questionnaire................................................ 264
Kris, David S., Nominee to be Assistant Attorney General,
National Security Division, Department of Justice.............. 311
Questionnaire................................................ 313
QUESTIONS AND ANSWERS
Responses of Dawn E. Johnsen, to Questions submitted by Senators
Cornyn, Graham, Grassley, Hatch, Sessions, Coburn and Specter.. 367
Responses of David S. Kris, to Questions submitted by Senator
Sessions and Specter........................................... 411
SUBMISSIONS FOR THE RECORD
Alliance Defense Fund, Defending Our First Liberty, Washington,
D.C., letter................................................... 415
Anti-Defamation Leaque, Deborah M. Lauter, Director, New York,
New York, letter............................................... 421
Ashcroft, John, Ashcroft Group, LLC, Washington, D.C., letter.... 422
Baker, Stewart A., Washington, D.C., letter...................... 423
Bayh, Hon. Evan, a U.S. Senator from the State of Indiana........ 424
Bellinger, John B., III, Arnold & Porter, Washington, D.C.,
letter......................................................... 425
Berenson, Bradford A., Sidley Austin LLP, Washington, D.C.,
letter......................................................... 426
Caminker, Evan H., Dean and Branch rickey Collegiate Professor,
University of Michigan Law School, Ann Arbor Michigan, letter.. 428
Chertoff, Michael, Chief, Homeland Security, Washinton, D.C...... 429
Cole, David, Co-Academe Director, Center for Transnational Legal
Studies, High Holborn, London, letter.......................... 430
Cullen, Richard, McGuire Woods LLP, Richmond, Virginia, letter... 432
Days, Drew S., III, Alfred M. Rankin Professor of Law, Yale Law
School, New Haven, Connecticut, letter......................... 433
Dean, Kate, Executive Director, U.S. Internet Servie Provider
Association, Washington, D.C., letter.......................... 435
Dellinger, Walter, Assistant Attorney General, Office of Legal
Counsel, Washington, D.C., letter.............................. 438
Gorelick, Jamie S., Wilmer Cutler Pickering Hale and Dorr LLP,
Washington, D.C.:..............................................
January 23, 2009, letter..................................... 441
February 2, 2009, letter..................................... 442
Hamilton, Lee H., Woodrow Wilson Internationl Center for Scholrs,
Wahington, D.C.,............................................... 443
Hawkins, Kristan, Executive Director, Students for Life of
America; Tony Perkins, President, Family Research Council;
David N. O'Steen, Ph.D., Exective Director, National Right to
Life Committee; Charmaine Yoest President, Americans United for
Life; Austin Ruse, President, Catholic Family and Human Rights
Institute; Marjorie Dannenfelser, President, Susan B. Anthony
List, Kris Mineau, President, Massachusetts Family Institute;
Bradley Mattes, Executive Director, life Issues Institute,
Phyllis Schlafly, President, Eagle Forum, J.C. Willke, MD,
President, International Right to Life Federation; Thomas
Brejcha, President & Chief Counsel, Thomas More Society; Peter
Breen, Executive Director & Legal Counsel, Thomas More Society;
Joseph A. Brinck, President, Sanctity of Life Foundation;
Jennifer Giroux, executive Director, Women Influencing the
Nation; Samuel B. Casey, General Counsel, Law of Life Project
Advocates International; Gary Bauer, President, American
Values; Brian Burch, President of CatholicVote.org; David
Bereit, national Director, 40 Days for Life; Phil Burress,
President, Citizens for Community Values; Jill Stanek, RN,
WorldNetDaily, Columnist; Peggy Hartshorn, President, Heartbeat
International; Michael geer, President, Pennsylvania Family
Institute; Bryan Kemper, President, Stand True-Christ Centered
Pro-life; John t. Bruchalski, MD, FACOG, Divine Mercy Care;
James Nolan, President, Crossroads Pro-life; Jennifer Kimball,
Be.L., Executive Director, Culture of Life Foundation; Jo
Tolek, Executive Director, Human Life Alliance; Dean Nelson,
Executive Director, Network of Politically Active Christians;
Chris Slattery, President, Expectant Mother Care-EMC FrontLine
Pregnancy Centers, New York, New York; Rev. Louis Shldon,
Chairman, Traditional Values Coalition; Andrea Lafferty,
Executive Director, Traditional Values Coalition, joint letter. 444
Hill, Baron P., a Representatives in Congress from the State of
Indiana, letter................................................ 449
Hunger, Frank W., Attorneys at Law, Walker, Tipps & Malone PLC,
Nashville, Tennessee, letter................................... 450
Johnsen, Dawn E., Nominee to be Assistant Attorney General Office
of Legal Counsel, Department of Justice, statement............. 451
Keegan, Michael B., People for the American Way, joint letter.... 462
Koh, Harold Hongju, Dean and Gerard C & Bernice Latrobe Smith
Professor of International Law, New Haven Connecticut, letter.. 467
Kreezko, Alan J., January 23, 2009, letter....................... 469
Kris, David S., Nominee to be Assistant Attorney General,
National Security Division, Department of Justice, statement... 470
Leadership Conference on Civil Rights, Alliance for Justice,
Asian American Justice Center, Campaign for America's Future,
Citizens' Commission on Civil Rights, Human Rights Campaign,
Mexican American Legal Defense and Educational Fund, NAACP,
NARAL Pro-Choice America, National Abortion Federation,
National Council of Jewish Women (NOW), National Partnership
for Women & Families, national Senior Citizens Law Center,
National Women's Law Center, People for the American Way, joint
letter......................................................... 472
Lee, Bill Lann, Attorneys at Law, Lewis, Feinberg, Lee, Renaker &
Jackson, P.C., Oakland, California, letter..................... 477
Lee, Ronald D., Partner, Arnold & Porter, Washington, D.C.,
letter......................................................... 478
Levin, Daniel, Partner, White & Case, Washington, D.C., letter... 480
Levinson, Sanford, W. St. John Garwoord and W. St. John Garwood
Jr., Centennial Chair in Law, University of Texas Law School,
Austin, Texas, letter.......................................... 481
Litt, Robert S., Arnold & Porter, Partner, Washington, D.C.,
letters........................................................ 482
Marcus, Daniel, American University, Washington, D.C., letter.... 486
Martin, Kate, Director, Center for National Security Studies,
Civil Liberties Think Tank and Advocacy Organization,
Washington, D.C., letter....................................... 487
Merletti, Lewis C., Director, Secret Service (Retired),
Washington, D.C., letter....................................... 489
Michigan Peaceworks, April 1, 2009, joint letter................. 490
Moss, Randolph D., Wilmer Cutler Pickering Hale and Dorr LLP,
Washington, D.C., letters...................................... 491
Muller, Scott W., Davis Plk & Wardwell, New York, New York,
letter......................................................... 495
National Council of Jewish Women, Nancy Ratzan, New York, New
York, letter................................................... 496
Nolan, Beth, Febrary, 24, 2009, letter........................... 497
Olson, Theodore B., Lawyers, Gibson, Dunn & Crutcher LLP,
Washington, D.C., letter....................................... 499
Parsons, Richard D., February 5, 2009, letter.................... 500
Patrick, Deval L., Governor, Milton, Massachusetts, letter....... 501
Powell, Benjamin A., General Counsel, Office of the Director of
National Intelligence, Washington, D.C, letter................. 502
Preston, Stephen W., Lawyer, Wilmer Cutler Pickering Hale and
Dorr LLP, Washington, D.C., letter............................. 504
Professors of Law, February 1, 2010 joint letter................. 505
Rabb Harriet S., Vice President & Gerneral Counsel, New York
City, New York, letter......................................... 517
Reno, Janet, former Attorney General, Washington, D.C., letters.. 518
Reno, Janet, Attorney General, Jamie S. Gorelick, Deputy Attorney
General, Patricia Wald, Assistant Attorney General, Legislative
Affairs, Eleanor D. Acheson, Assistant Attorney General, Office
of Policy Development, Loretta C. Argrett, Assistant Attorney
General, Tax Division, Jo Ann Harris, Assistant Attorney
General, Criminal Division, Lois Schiffer, Assistant Attorney
General Environment and Natural Resources Division, joint
letter......................................................... 520
Robel, Lauren, Dean and Val Nolan Professor of Law, Indiana
University, Bloomington, Indiana, letter....................... 522
Robinson, James K., Cadwalader, Wickersham & Taft LLP,
Washington, D.C., letters...................................... 523
Saperstein, Rabbi David, Religious Action Center of Reform
Judaism, Washington, D.C., letter.............................. 527
Shapiro, Howard M., Wilmer Cutler Pickering Hale and Dorr LLP,
Washington, D.C., letter....................................... 528
Shiffrin, Richard L., Deputy Assistant Attorney General,
Washinton, D.C., letter........................................ 529
Spaulding, Suzanne E., Bingham Consulting, Boston, Massachusetts,
letter......................................................... 530
Thompson, Larry D., Senior Vice President, Government Affairs,
General Counsel and Secretary, PEPSICO, Purchase, New York,
letter......................................................... 532
Treanor, William Michael, Dean, Fordham University, The School of
Law,New York, New York, letter................................. 533
Undersigned Women's and Reproductive Health Organizations, joint
letter......................................................... 534
Vatis, Michael, Assistant Attorney General, Office of Legal
Counsel, Department of Justice, letter......................... 536
Wainstein, Kenneth L., former Homeland Security Advisor,
Washington, D.C., letter....................................... 537
Waxman, Seth P., Wilmer Cutler Pickering Hale and Dorr LLP,
Washington, D.C., letters...................................... 539
Wilkerson, Lawrence B., Washington, D.C., letter................. 541
Williams, Victor, Assistant Professor of Law, Catholic
Unive4rsity of America, Washington, DC, letter and attachment.. 542
Winston, Judith A., former Undersecretary and General Counsel,
Department of Education, Washington, D.C., letter.............. 546
Wittes, Benjamin, Senior Fellow and Research Director in Public
Law, Brookings, Washington, D.C., letter....................... 547
Wolin, Neal S., Deputy Treasury Secretary, Washington, D.C.,
letter......................................................... 549
----------
TUESDAY, MARCH 10, 2009
STATEMENTS OF COMMITTEE MEMBERS
Page
Kohl, Herbert, a U.S. Senator from the State of Wisconsin........ 551
PRESENTERS
Harman, Hon. Jane, a U.S. Representative in Congress from the
State of California presenting Christine A. Varney, Nominee to
be Assistant Attorney General, Antitrust Division, U.S.
Department of Justice.......................................... 552
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York preparing Lanny A. Breuer, Nominee to be Assistant
Attorney General Criminal Division, U.S. Department of Justice. 554
STATEMENT OF THE NOMINEES
Breuer, Lanny A., Nominee to be Assistnat Attorney General
Criminal Division, U.S. Department of Justice.................. 555
Questionnaire................................................ 557
Varney, Christing A., Nominee to be Assistant Attorney General,
Antitrust Division, U.S. Department of Justice................. 618
Questionnaire................................................ 620
West, Tony, Nominee to be Assistant Attorney General, Civil
Division, U.S. Department of Justice........................... 676
Questionnaire................................................ 678
QESTIONS AND ANSWERS
Responses of Lanny A. Breuer to Questions submitted by Senators
Hatch, Grassley and Specter.................................... 747
Responses of Christine Varney to Questions submitted by Senators
Grassley, Leahy, Schumer, Cornyn, Feingold, Feinstein, Hatch,
Kohl and Specter............................................... 758
Responses of Tony West to Questions submitted by Senators
Grassley and Kohl.............................................. 784
SUBMISSIONS FOR THE RECORD
Adler, J., National President, Federal law Enforcement Officers
Association, Lewisberry, PA, letter............................ 791
American Bar Association, former chairs, Washington, DC, joint
letter......................................................... 793
Angelides, Phil, former Treasurer, State of California,
Sacramento, California, letter................................. 796
Arriola, Christopher, Prosecutor, Santa Clara, California, letter 797
Babcock, Barbara Allen, Judge John Crown Professor of Law
Emerita, Stanford, California, letter.......................... 798
Baer, William J., Arnold & Porter LLP, Washington, DC, letter.... 799
Balto, David A., Senior Fellow, Center for American Progress
Action Fund, Washington, DC, statement......................... 800
Bar Association of San Francisco, Russell S. Rocca, President,
San Francisco, California, letter.............................. 816
Bass, Karen, Speakerof the Assembly, Sacramento, California,
letter......................................................... 818
Bayless, David B., Covington & Burling LLP, San Franciso,
California, letter............................................. 819
Bellows, Randy I., February 19, 2009, letter..................... 821
Bennett, Robert S., Skadden, Arps, Slate, Meagher & Flom LLP,
Washington, DC, letter......................................... 823
Bensinger, Peter, former Administrator, Jack Lawn, former
Administrator, and Asa Hutchinson, former Administrator, U.S.
Drug Enforcement Administration, joint letter.................. 824
Berenson, Bradford A., Sidley Austin LLP, Washington, DC, letter. 825
Bittman, Robert J., White & Case LLP, Washington, DC, letter..... 827
Breuer, Lanny A., Nominee to be Assistant Attorney General
Criminal Division, U.S. Department of Justice, statement 828
Brinkmann, Beth S., Morrison & Foerster, LLP, Washington, DC,
letter......................................................... 833
Brosnahan, James J., Morrison & Foerster, LLP, Washington, DC,
letter......................................................... 834
Brown, Edmund G., Jr., Attorney General, State of California,
Sacramento, California, letter................................. 836
Brown, Willie L, Jr., Attorney at Law, San Francisco, California,
letter......................................................... 838
Cacheris, Plato, Attorney at Law, Trout Cacheris, Washington, DC,
letter......................................................... 839
Chertoff, Michael, Assistant Attorney General, Criminal Division,
Washington, DC, letter......................................... 840
Congressional Black Caucus, Representative Barbara Lee,
Chairwoman, Representative Emanuel Cleaver, First Vice-Chair,
Representative Donna M. Christensen, Second Vice-Chair, and
Representative Yvette D. Clarke, Whip, Washington, DC, joint
letter......................................................... 841
Conner, Roger, Director, The Advocacy Project and Adjunct
Professor of Law, Vanderbilt Law School, Nashville, Tennessee.. 843
Cuomo, Andrew M., Attorney General, State of New York, New York,
New York, letter............................................... 847
Days, Drew S., III, Yale Law School, New Haven, Connecticut,
letter......................................................... 848
Dukakis, Michael S., UCLA, Department of Public Policy, School of
Public Affairs, Los Angeles, California, letter................ 850
Eshoo, Anna, Representative in Congress, Washington, DC, letter.. 851
Fisher, Alice S., Assistant Attorney General, Criminal Division,
Washington, DC, letter......................................... 852
Friedrich, Matthew W., Acting Assistant Attorney General,
Washington, DC, letter......................................... 853
Gansler, Douglas F., Attorney General, State of Maryland,
Baltimore, Maryland, letter.................................... 854
Girgenti, Richard H., former Director, Criminal Justice Services,
State of New York, New York, New York, letter.................. 855
Gorelick, Jamie S., Wilmer & Hale, Washington, DC, letter........ 857
Green, Thomas C., Attorney at Law, Sidley Austin, LLP,
Washington, DC, letter......................................... 859
Hampton, Ronald E., Executive Director, National Black Police
Association, Inc., Washington, DC, letter...................... 960
Harris, Jo Ann, Attorney at Law, New York, New York, letter...... 862
Heymann, Philip B., James Barr Ames Professor of Law, Director of
Center for International Criminal Justice, Harvard Law School,
Cambridge, Massachusetts, letter............................... 863
Hibbard, Stephen D., President, Association of Business Trial
Lawyers, Northern California, Pleasanton, California, letter... 864
Holtzman, Elizabeth, Counsel, Herrick, Feinstein LLP, New York,
New York, letter............................................... 866
Horowitz, Michael E., Cadwalader, Wickersham & Taft LLP,
Washington, DC, letter......................................... 868
Hufstedler, Shirely M., Morrison & Foerster LLP, Los Angeles,
California, letter............................................. 870
Infante, Edward A., Retired Magistrate, Arbitrator/Mediator,
JAMS, San Francisco, California, letter........................ 871
Keker, John W., Keker & Van Nest LLP, Law Office, San Francisco,
California, letter............................................. 873
Kelley, David N., Cahill Gordon & Reindel LLP, New York, New
York, letter................................................... 875
Khoja, Khurshid, President, South Asian Bar Association, San
Francisco, California, letter.................................. 877
Klein, Joel I., Chancellor, New York City, Department of
Education, New York, New York, letter.......................... 878
La Bella, Charles G., Attorney at Law, LaBella & McNamara, LLP,
San Diego, California, letter.................................. 879
Leary, Thomas B., former Federal Trade Commissioner, Hogan &
Hartson LLP, Washington, DC, letter............................ 880
Lee, Bill Lann, Lewis, Feinberg, Lee, Renaker & Jackson, PC,
Oakland, California, letter.................................... 882
Lockyer, Bill, Treasurer, State of California, Sacramento,
California, letter............................................. 883
Lofgren, Zoe, a Representatives in Congress from the State of
California, letter............................................. 885
Madigan, Michael J., Attorney at Law, Orrick, Herrington &
Sutcliffe, LLP, Washington, DC, letter......................... 886
Major Cities Chiefs Association, Robert Davis, Vice President,
Chief of Polics, San Jose, California, letters................. 887
Marshall, Raymond C., Bingham McCutchen LLP, San Francisco,
California, letter............................................. 889
McDavid, Janet L., Hogan & Hartson LLP, Washington, DC, letter... 891
McEnery, Tom, General Partner, The Farmers Union, San Jose,
California, letter............................................. 893
Melamed, A. Douglas, Wilmer Hale LLP, Washington, DC, letter..... 895
Melekian, Bernard K., President, California Police Chiefs
Association, Sacramento, California, letter.................... 896
Milgram, Anne, Attorney General, State of New Jersey, Trenton,
New Jersey, letter............................................. 897
Mineta, Norman Y., Vice Chairman, Hill & Knowlton, Inc.,
Washington, DC, letter......................................... 899
National Association for the Advancement of Colored People,
Benjamin Todd Jealous, President & Chief Executive Officer,
Baltimore, Maryland, letter.................................... 900
National Bar Association, Rodney G. Moore, President, Atlanta,
Georgia, letter................................................ 902
Morgenthau, Robert M., District Attorney, County of New York, New
York, New York, letter......................................... 904
Muris, Timmothy J., former Chair, Federal Trade Commission, and
Robert Pitofsky, former Chair, Federal Trade Commission,
Washington, DC, joint letter................................... 906
National Association of Drug Court Professionals, C. West
Huddleston, III, Chief Executive Officer and Executive
Director, Alexandria, Virginia, letter......................... 908
National Association of Police Organizations, Inc., William J.
Johnson, Executive Director, Alexandria, Virginia, letter...... 909
National Center for Missing & Exploited Children, Ernie Allen,
President and Chief Executive Officer, Alexandria, Virginia,
letter......................................................... 910
National District Attorneys Association, Joseph I. Cassilly,
President, Alexandria, Virginia, letter........................ 911
National Fraternal Order of Police, Chuck Canterbury, National
President, Washington, DC, letter.............................. 912
National Narcotic Officers' Associations Coalition, Ronald E.
Brooks, President, West Covina, California, letter............. 913
National Network to End Domestic Violence, Washington, DC:
Break the Cycle, March 9, 2009, letter........................... 914
Else, Sue, President, February 19, 2009, letter.................. 916
National Organization of Black Law Enforcement Executives,
McMillan, Joseph, National President, Alexandria, Virginia,
joint letter................................................... 917
National Partnership for Women & Families, Debra Ness, President,
Washington, DC, letter......................................... 918
National Rural Health Association, Beth Landon, President,
Washington, DC, letter......................................... 919
Newton, Nell Jessup, Chancellor and Dean, University of
California, Hastings College of the Law, San Francisco,
California, letter............................................. 920
Parker, Richard G., O'Melventy & Myers LLP, Washington, DC,
letter......................................................... 921
Paterson, Eva, President, Equal Justice Society, San Francisco,
California, letter............................................. 923
Perkins, Richard D., Retired Chief of Police, City of Henderson,
Henderson, Nevada, letter...................................... 924
Quinn, Jonathan S., Reed Smith LLP, on behalf of Matthew J.
Brief, Brief Carmen & Kleiman, LLP, New York, New York; Lewis
H. Chimes, Garrison, Levin-Epstein, Chimes, Richardson &
Fitzgerald, P.C., New Haven, Connecticut; Patrick J. Conlon,
Houston, Texas; Irving B. Hirsch, Wilson Elser Moskowitz
Edelman & Dicker LLP, New York, New York; John B McCusker,
McCusker, Anselmi, Rosen, & Carvelli, Florham park, New Jersey;
Janet Polstein, Scarsdale, New York; Michael K. Ungar, Simmons
& Ungar LLP, San Francisco, California; Gregory Carro, New York
County Supreme Court, New York, New York; Katharine T. Cobb,
Queens College, CUNY, Flushing, New York; Carey R. Dunne, Davis
Polk & Wardwell, New York, New York; Sally Keller, Great Neck,
New York; Vincent A. Nagler, Callan, Koster, Brady & Brennan,
LLP, New York, New York; Sally Strauss, Mount Sinai Medical
Center, New York, New York; Gino A. Zonghetti, Kenny, Stearns &
Zonghetti, LLC, New York, New York, joint letter............... 925
Reed, Chuck, Mayor, City of San Jose, Capital of Silicon Valley,
San Jose, California, letter................................... 927
Renne, Louise, Partner, Renne Sloan Holtzman Sakai LLP, Public
Law Group, San Francisco, California, letter................... 928
Robinson, James K., Cadwalader, Wichersham & Taft LLP,
Washington, DC, letter......................................... 930
Rogers, Martha P., Attorney at Law, Ober, Kaler, Grimes &
Shriver, Washington, DC, letter................................ 932
Reno, Janet, former Attorney General, Washington, DC, letter..... 933
Ross, Simone E., Vice President, Citizens Advisory Council,
Metropolitan Police Department, Second District, Washington,
DC, letter..................................................... 934
Rule, Charles F., (Rick), Cadwalader, Wickersham & Taft LLP,
Washington, DC, letter......................................... 936
Russo, John, City Attorney, city of Oakland, Oakland, California,
letter......................................................... 938
Salarno, Harriet, Chair, Crime Victims United of California,
Auburn, California, letter..................................... 939
Shawler, Nedra A., President, Charles Houston Bar Association,
Oakland, California, letter.................................... 940
Shenefield, John H., Counsel, Morgan Lewis, Washington, DC, and
James F. Rill, Partner, Howrey LLP, Washington, DC, joint
letter......................................................... 941
Silbert, Earl J., Counsel, DLA Piper LLP, Washington, DC, letter. 943
Simon, Timothy Alan, Commissioner, Public Utilities Commission,
State of California, San Francisco, California, letter......... 944
Sims, Joe, Jones Day, Washington, DC, letter..................... 946
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania, letter........................................... 948
Sundheim, George ``Duf'', California, letter..................... 949
Swanson, Sauandre R., Assemblymemer, Sixteenth Distract,
California Legislature, Sacramento, California, letter......... 950
Thieman, Frederick W., President, The BUHL Foundation,
Pittsburgh, Pennsylvania, letter............................... 951
Thompson, Larry D., February 17, 2009, letter.................... 954
Varney, Christine A., Nominee to be Assistant Attorney General,
Antitrust Division, U.S. Department of Justice, statement and
letter......................................................... 955
Villaraigosa, Antonio, Mayor, City of Los Angeles, Los Angeles,
California, letter............................................. 960
Waxman, Seth P., WilmerHale LLP, Washington, DC, letter.......... 961
West, Tony, Nominee to be Assistant Attorney General, Civil
Division, U.S. Department of Justice, statement................ 962
Wetmore, Keith C., Chair, Morrison & Foerster LLP, New York, New
York, letter................................................... 964
Zeidman, Fred S., Houston, Texas, February 3, 2009, letter....... 966
----------
WEDNESDAY, APRIL 1, 2009
STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 969
prepared statement............................................... 1238
Specter, Hon Arlen, a U.S. Sentor from the State of Pennsylvania. 971
PRESENTERS
Bayh, Hon. Evan a U.S. Senator from the State of Indiana
presenting David Hamilton Nominee to be U.S. Circuit Judge for
the Seventh Circuit............................................ 975
Cantwell, Hon. Maria, a U.S. Senator from the State of Washington
presenting Gil Kelikowske Nominee to be Director of National
Drug Control Policy, Exective Office of the President.......... 979
Lugar, Hon. Richard, a U.S. Senator from the State of Indiana
presenting David Hamilton Nominee to be U.S. Circuit Judge for
the Seventh Circuit............................................ 974
Murray, Hon. Patty, a U.S. Senator from the State of Washington
presenting Gil Kelikowske Nominee to be Director of National
Drug Control Policy, Exective Office of the President.......... 977
Reid, Hon. Harry, a U.S. Senator from the State of Nevada
presenting Ronald H. Weich Nominee to be Assistant Attorney
General oFfice of Legislative Affairs, Department of Justice... 970
STATEMENT OF THE NOMINEES
Hamilton, David, Nominee to be U.S. Circuit Judge for the Seventh
Circuit 980
Questionnaire................................................ 997
Kerlikowske, R. Gil, Nominee to be Director of National Drug
Control Policy, Exective Office of the President 985
Questionnaire................................................ 1057
Weich, Ronald H., Nominee to be Assistant Attorney General Office
of Legislative Affairs, Department of Justice 984
Questionnaire................................................ 1076
QUESTIONS AND ANSWERS
Responses of David F. Hamilton to questions submitted by Senators
Sessions, Hatch, Grassley, Graham, Cornyn, and Coburn.......... 1106
Responses of R. Gil Kerlikowske to questions submitted by
Senators Specter, Hatch, Grassley, Coburn...................... 1133
Responses of Ronald Weich to questions submitted by Senators
Specter, Grassley and Coburn................................... 1173
SUBMISSIONS FOR THE RECORD
Baca, Leroy D., Sheriff, county of Los Angeles, Montereo Park,
California, letter............................................. 1193
Bayh, Hon. Evan, a U.S. Senator from the State of Indiana,
prepared statement............................................. 1195
Benatovich, Lana D., President, National Federation for Just
Communities of WNY, Buffalo, New York, letter.................. 1197
Benczkowski, Brian A., Dennis Burke, Andy Fois, Ann Harrkins,
Will Moschella, Robert Raben, and Pat Wald, joint letter....... 1199
Berman, Greg, Director and Aubrey Fox, Center for Court
Innovation, New York, New York, letter......................... 1201
Blumstein, Alfred, University Professor and J. Erik Jonsson
Professor of Urban Systems and Operations Research, H. John
Heinz III School of Public Policy and Management, Carnegie
Mellon University, Pittsburge, Pennsylvania, letter............ 1202
Bobb, Merrick J., Executive Director, Police Assessment Resource
Center, Los Angeles, California, letter........................ 1204
Brennan, Bridget G., Special Narcotics Prosecutor, New York, New
York, letter................................................... 1206
Brown, Lee P., PhD, Chairman and CEO, Brown Group International
Houston, Texas, letter......................................... 1208
Burgess, Tim, Chair Public Safety, Human Services and Education
Committee, City Council, City of Seattle, Seattle, Washington,
letter......................................................... 1209
Cantwell, Hon. Maria, a U.S. Senator from the State of
Washington, prepared statement................................. 1210
Citty, William, Chief of Police, City of Oklahoma City, Police
Department, Oklahoma City, Oklahoma, letter.................... 1212
Community Anti-Drug Coalitions of America, Arthur T. Dean, Major
General and Sue Thau, Public Policy Consultant, Alexandria,
Virginia, joint letter......................................... 1213
Council of State Government Justice Center Board of Directors,
Pat Colloton, Chair, Committee on Corections and Juvenile
Justice, New York New York, letter............................. 1214
Davis, Robert L., Chief of Police, San Jose Police Department,
San Jose, California, letter................................... 1215
Flynn, Edward A., Chief of Police, City of Milwaukee, Police
Department, Milwaukee, Wisconsin, letter....................... 1216
Fong, Heather J., Chief of Police, Police Department, San
Franciso, California, letter................................... 1217
Giovengo, Melinda, PhD, Executive Director, YouthCare, Seattle,
Washington, letter............................................. 1218
Gillespie, Douglas C., Sheriff, LAS Vagas Metropolitan Police
Department, Las Vagas, Nevada, letter.......................... 1220
Hammond, Larry A., Osborn Maledon, Attorneys at Law, Phoenix
Arizona, letter................................................ 1221
Harris, Jack F., Public Safety Manager, Phoenix Police
Department, Phowniz, Arizona, Letter........................... 1223
Hayes, John F., Jr., President, Black Law Enforcement Association
of Washington Inc., Seattle, Washington, letter................ 1224
Hurtt, Harold L., Chief of Police, City of Houston, Houston
Police Department, houston, Texas, letter...................... 1226
Isom, Colonel Daniel, Chief of Polics, Metrololitan Police
Department, St. Louis, Missourt, letter........................ 1227
Inukai, Richard, President, Dick's Country Chrysler Jeep Dodge,
Hillsboro, Orgon, letter....................................... 1228
Ivey, Glenn F., State's Attorney, Upper Marlboro, Maryland,
letter......................................................... 1229
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts, letter.......................................... 1230
Kerlikowske, R. Gil, Nominee to be Director of National Drug
Control Policy, Exective Office of the President, Washington,
DC, statement 1232
Krisberg, Barry, National Council on Crime and Delinquency,
Oakland, California, letter.................................... 1236
Kunkle, David M., Chief of Police, Dallas Police Department,
Dallas, Texas, letter.......................................... 1237
Lugar, Hon. Richard, a U.S. Senator from the State of Indiana,
statement...................................................... 1241
Manger, J. Thomas, Chief of Police, Montgomery County, Rockville,
Maryland, letter............................................... 1243
McCaffrey, Barry R., General, USA (Retired), Director, Office of
National Drug Control Policy, Washington, DC, letter........... 1244
McGrath, Michael, Chief of Police, Department of Public Safety,
Division of Police, Cleveland, Ohio, letter.................... 1246
Meese, Edwin, III, March 31, 2009, letter........................ 1247
Meisenheimer, Keith, Circuit Court Judge, Co-Chair, Portland Boys
and Girls Club, Portland, Oregon, letter....................... 1248
Mieczkowski, Tom, Professor and Chair, Department of Criminology,
College of Arts and Science, Universiy of South Florida, Tampa,
Florida, letter................................................ 1249
Miller, Kermit, Chief of Police, Tucson Police Department,
Tucson, Arizona, letter........................................ 1250
Monroe, Rodney D., Chief of Police, Charlotte-Mecklenburg Police
Department, Charlotte, North Carolina, letter.................. 1251
Morgenthau, Robert M., District Attorney, New York, New York,
letter......................................................... 1252
Murray, Hon. Patty, a U.S. Senator from the State of Washington,
statement...................................................... 1254
National Association of Drug Court Professionals, West
Huddleston, Chief Executive Officer, Alexandria, Virginia,
letter......................................................... 1256
National Association of State Alcohol and Drug Abuse, Robert I.L.
Morrison, Interim Executive Director, Washington, DC, letter... 1257
National Black Police Association, Ronald E. Hampton, Executive
Director, Washington, DC, letter............................... 1259
National Center for Victims of Crime, Mary Lou Leary, Exective
Director, Washington, DC, letter............................... 1262
National Criminal Justice Association, Cabell C. Cropper,
Executive Director, Washington, DC, letter..................... 1263
National Fraternal Order of Police, Chuck Canterbury, National
President, Washington, DC, letter.............................. 1264
National Narcotic Officers' Associations Coaltition, Ronald E.
Brooks, President, West Covina, California, letter............. 1265
Neufeld, Peter, Co-Director and Barry Scheck, Co-Director,
Innocence Project, New York, New York, letter.................. 1267
Nickels, Greg, Mayor of Seattle, Seattle, Washington, letter..... 1268
Parker, Robert, Director, Miami-Dade Police Department, Miami,
Florida, letter................................................ 1269
Parsons, Charlie J., President & CEO, D.A.R.E. America, Los
Angeles, California, letter.................................... 1270
Pennington, Richard J., Chief of Police, Atlanta Police
Department, Atlanta, Georgia, letter........................... 1271
Porter, Russell M., Director, Intelligence Fusion Center, Des
Moines, Iowa, letter........................................... 1272
Police Executive Research Forum, Chuck Wesler, Exective Director,
Washington, DC, letter......................................... 1273
Ramsey, Charles H., Police Commissioner, Philadelphia Police
Department, Philadelphia, Pennsylvania, letter................. 1274
Reid, Hon. Harry, a U.S. Senator from the State of Nevada,
statement...................................................... 1275
Republican Members of Congress, former, Bruce Artim, Senate
Judiciary Committee, former Chief Counsel and Staff Director,
Washington, DC, joint letter................................... 1276
Russell, Robert T, Jr., Buffalo City Court, Presiding Judge, Drug
Treatment Court, Mental Health Court and Veterans' Treatment
Court, Buffalo, New York, letter............................... 1279
Serpas, Ronal W., Chief of Police, Metropolitan Nashville Police
Department, Nashville, Tennessee, letter....................... 1281
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania:
March 24, 2009, letter....................................... 1282
March 31, 2009, joint letter................................. 1283
State Associations of Addiction Services, Paul N. Samuels,
Director/President, Becky Vaughn, Executive Director, and
Gabrielle de la Gueronniere, JD, Director, National Policy
Legal Action Center, National Hire Network, Washington, DC,
joint letter................................................... 1285
Steer, John R., Senior Partner, Allenbaugh Samini Ghosheh, LLP,
Eagan, Minnesota, letter....................................... 1287
Stewart, Robert M., Chief Exective Officer, Stewart Konduros &
Associates, LLC, Lexington, South Carolina, letter............. 1288
Streicher, Thomas H., Jr., Police Chief, Cincinnati Police
Department, Cincinnati, Ohio, letter........................... 1289
U.S. Conference of Mayors, Tom Cochran, CEO and Executive
Director, Washington, DC, letter............................... 1290
Vest, Charles M., President, National Academy of Engineering,
Washington, DC, letter......................................... 1291
Weich, Ronald H., Nominee to be Assistant Attorney General Office
of Legislative Affairs, Department of Justice, statement 1292
White, Colonel Robert C., Chief of Police, Louisville Metro
Police Department, Louisville, Kentucky, letter................ 1294
Wiles, Richard D., Sheriff, El Paso County Sheriff's Office, El
Paso, Texas, letter............................................ 1295
Wilkins, William W., Member, Nexsen Pruet, LLC, Attorneys and
Counselors at Law, Greenville, South Carolina, letter.......... 1296
Williams, Hubert, President, Police Foundation, Washington, DC,
letter......................................................... 1298
ALPHABETICAL LIST OF NOMINEES
Breuer, Lanny A., Nominee to be Assistant Attorney General
Criminal Division, U.S. Department of Justice.................. 555
Hamilton, David, Nominee to be U.S. Circuit Judge for the Seventh
Circuit........................................................ 980
Johnsen, Dawn E., Nominee to be Assistant Attorney General Office
of Legal Counsel, Department of Justice........................ 261
Kerlikowske, R. Gil, Nominee to be Director of National Drug
Control Policy, Exective office of the President............... 985
Kris, David S., Nominee to be Assistant Attorney General,
National Security Division, Department of Justice.............. 311
Ogden, David W., Nominee to be Deputy Attorney General U.S.
Department of Justice.......................................... 7
Varney, Christing A., Nominee to be Assistant Attorney General,
Antitrust Division, U.S. Department of Justice................. 618
Weich, Ronald H., Nominee to be Assistant Attorney General Office
of Legislative Affairs, Department of Justice.................. 984
West, Tony, Nominee to be Assistant Attorney General, Civil
Division, U.S. Department of Justice........................... 676
NOMINATION OF DAVID W. OGDEN, NOMINEE TO BE DEPUTY ATTORNEY GENERAL,
U.S. DEPARTMENT OF JUSTICE
----------
WEDNESDAY, FEBRUARY 5, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:37 a.m., room
SD-226, Dirksen Senate Office Building, Hon. Patrick J. Leahy,
Chairman of the Committee, presiding.
Present: Senators Leahy, Feingold, Cardin, Whitehouse,
Wyden, Kaufman, Specter, Hatch, Kyl, and Sessions.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman 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
17:2, and I think that was a testament to Mr. Holder's
character, integrity, and independence. It also shows that it's
time to restore the Justice Department and restore the American
people's confidence in Federal law enforcement.
Today the Committee restores, or 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 Department of Justice, basically, the one who manages the
Department and acts as Attorney General in the absence of the
Attorney General.
In fact, currently the hold-over Deputy Attorney General,
acting as Attorney General, who has been in charge between
Attorney General Mukasey's resignation at the end of President
Bush's term and Attorney General Holder's confirmation.
In that 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 on both sides of the aisle to
revise the McNulty memo, and many other important issues. So, I
commend outgoing Deputy Attorney General Filip.
But it 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.
The report by the Department of Justice's own internal
oversight office has confirmed the findings of our
investigation. Those conclude 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 mentioned that because of 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 ``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
complements Attorney General nominee Eric Holder's experience
in criminal law, thus making him the ideal nominee for Deputy
Attorney General.''
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, describes Mr. Ogden as
``a brilliant and thoughtful lawyer who has the complete
confidence and respect of career attorneys at main 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 he has
the experience, for example, not at the Department of Justice,
but at the Department of Defense, that's going to be the key to
success in the years ahead.
He was, 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 is the kind of serious lawyer and experienced government
servant who understands the special role the Department of
Justice has to fulfill in our democracy and he has the
knowledge and ability to help restore it. He is 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 or favor. So, I commend
him and his family for the willingness to serve.
I yield to the distinguished senior Senator, and longest-
serving Senator from the State of Pennsylvania.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. 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. 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.
We are under very heavy time pressure 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, the National
Security Division, Criminal Division, Civil Division, and the
Antitrust Division, all very important, very complicated jobs.
Staff has been trying to work out a schedule which can be
accommodated by a relatively small minority staff. It would be
my hope that staff could work this out so 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
was received on January 23rd, including two and a half boxes of
writings and supplementary 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. 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
the 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 to prepare.
[The information appears as a submission for the record.]
Senator Specter. 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. I have reason to believe that some are
not coming because they are 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.
Chairman Leahy. Well, thank you. We will try to move as
expeditiously, of course, as we did during the President Bush
time, in moving his people. 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 statements in support of the nominee will be
placed in the record.
[The prepared statements of Senator Mark Warner and Senator
Jim Webb appear as a submission for the record.]
Chairman Leahy. I yield to our distinguished former
colleague, a man I've always called my Senator when I'm away
from home, Senator John Warner.
PRESENTATION OF DAVID W. OGDEN, NOMINEE TO BE DEPUTY ATTORNEY
GENERAL, DEPARTMENT OF JUSTICE, BY HON. JOHN WARNER, A FORMER
U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Warner. Thank you, Mr. Chairman, Senator Specter,
and Members of the Committee. I am 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, the Ranking Member, and the
members of the Committee with, 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. In this instance, this is one of the most
extraordinary, well-qualified individuals that I have ever had
the privilege to introduce to the U.S. Senate. He is joined
here today by members of his family; I'll allow the Chair to
appropriately and timely recognize that. Of course, I shall ask
that my full statement be placed in the record.
Chairman Leahy. Without objection.
[The prepared statement of Senator John Warner appears as a
submission for the record.]
Senator 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--would be brought to bear
on that.
But how fortunate America is to have someone as
knowledgeable and as experience 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
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 Abram Sofer, a U.S. District
judge on the Southern District of New York. Upon completion of
this 1-year clerkship, he was selected to serve on the U.S.
Supreme Court as a law clerk for the Honorable Harry Blackman.
After completing two clerkships, David entered private
practice and was eventually promoted to partner at a well-
respect law firm, Jenner & Block. In 1994, he left private
practice to serve as Deputy Attorney General and legal counsel
at the U.S. 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 in 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 & 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 was deemed qualified by the U.S.
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 be hopeful that this Committee will look favorably upon
this nomination.
In preparation, Mr. Chairman, if the chair will kindly
indulge me a moment, I had a long meeting with this nominee,
even though I had been with him before, because I was concerned
about his approach to the very important role that the
Department of Justice plays over national security
responsibilities of the executive branch: the duty to work with
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 security, while protecting the
civil liberties of our citizens.
A gathering of intelligence relating to these threats is
essential, and that responsibility has rested for many
generations on the shoulders of the most dedicated and
courageous of public servants. If I might say with a deep sense
of humility, 40 years ago this month I sat before the U.S.
Senate and was confirmed as Under Secretary of the Navy, and
from that day to this day I have had constant association with
the intelligence community, serving on the Intelligence
Committee with two of our colleagues here on the bench today.
I am 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 upheld not only here in the United States, but in
the eyes of the world and in compliance with the treaties of
the world, as we collect intelligence.
There's been some discussion about actions taken by persons
in the intelligence field and collection field in 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
and courageous of our public servants.
As we move into the future and look to the past and we are
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 wee, February
2nd, at 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, 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
intelligence activities in the past.'' 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 responsibilities of the
Department, and I will leave to him to speak to the Committee
on it.
Chairman Leahy. Thank you.
Senator Warner. I thank you, Mr. Chairman, for the
privilege to appear before you, a friend of 30 years here in
this institution.
Chairman Leahy. Thank you.
Senator Warner. And my dear friend Senator Specter, and
other members of the Committee.
Chairman Leahy. I thank the Senator very much. I'm sorry to
rush, but because 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. Your full statement will be placed in
the record, of course.
Senator Warner. Good. I have Senator Webb's statement here.
He was unable to attend. I will hand it to the Clerk.
Chairman Leahy. Thank you very much.
Senator Warner. Thank the Chair.
Chairman Leahy. We're probably going to be making this a
weekly event with you.
[Laughter.]
Senator Warner. No, no.
Chairman Leahy. Mr. Ogden, would you please step forward?
Mr. Ogden. Yes, Mr. Chairman.
Chairman Leahy. Would you raise your right hand and repeat
after me?
[Whereupon, the witness was duly sworn.]
Chairman Leahy. Thank you very much.
I think we want to change your name plate there.
Mr. Ogden, I think, as Senator Warner mentioned, you have
family members here. Would you like to introduce your family,
so someday that will be in the Ogden archives or records
showing they were here?
Mr. Ogden. The very small archive, I'm sure, Senator. Mr.
Chairman, thank you very much. I would like to do that.
Chairman 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.
Chairman Leahy. Congratulations on the----
Mr. Ogden. Thank you.
Chairman Leahy. On the birth of your daughter.
Mr. Ogden. Thank you, Mr. Chairman.
This is my sister Connie Graham, my uncle Bill Condrell, my
sister Cece Ogden. Behind 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 and Juliana Graham.
Chairman 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.
Chairman Leahy. Please go ahead.
STATEMENT OF DAVID W. OGDEN, NOMINEE TO BE DEPUTY ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE
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 am 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 staffs 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 dialog, 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 & Mary, and my daughter Elaine, who is a
high school senior and will soon be attending my alma mater,
the University of Pennsylvania. I am 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 am 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 am 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, nonpartisanship, vigilance, restraint, fairness,
and service and fealty to the law. With proper support, they
will continue to transmit those transitions across generations
and administrations.
I knew going in 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 learn 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, nonpartisan
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
Department's responsibilities: National security, law
enforcement, civil rights, managing our prisons, and the rest
of those important responsibilities, but I am 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 would ask that my full statement be accepted for the
record, and I look forward to your questions.
Chairman Leahy. Thank you, Mr. Ogden. It will be part of
the record.
[The prepared statement of Mr. Ogden appears as a
submission for the record.]
Chairman Leahy. 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 Schlossman. 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. Schlossman
brought four indictments on the eve of a closely contested mid-
term election in Missouri. Now, in the red book, the
longstanding policies of the Justice Department has--the guide
book talks about Federal prosecution of election offenses and
it provides, in investigating election fraud matters, that
Justice Department ``must refrain from any conduct which has
the possibility of affecting the election itself. Thus, most,
if not all, investigations of alleged election crimes must
await the end of the election to which the allegations
relate.'' Now 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 there changed policy from the red book and a
green book to allow last-minute prosecutorial actions that
would influence the outcomes of elections. Now, without going
back through all the investigation 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
describe. I think the importance that the Department, in its
law enforcement function, not be utilized in any way that
actually interferes with an ongoing election or has the
appearance of doing that. It's extremely important to avoid any
possibility of that type of interference. 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. I think that policy generally worked well.
Chairman Leahy. Thank you.
The mortgage crisis and the financial meltdown have
contributed, as we all know, to the economic recession which
began last year. I think we need more enforcement against
financial frauds. I'm glad to see Attorney General Holder
mention this on his first day in office. We have to find out
those, and hold accountable, those who destabilize 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 has declined; in some places it's been lack of
staffing.
Now, I'm working on legislation with Senator Grassley of
this Committee to increase resources for investigation and
prosecution of 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. Obviously that priority has to be at the very top of
the list. But the issues of financial fraud, in the mortgage
area and other areas--it's imperative that we address it with
sufficient resources. If I am confirmed, we certainly will do
that.
Chairman Leahy. Thank you. 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. These national security issues also are looked at by
the Department of Justice. You must have gained some insights
when you worked 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.
Chairman Leahy. Good.
Mr. Ogden. I guess I would--if I were going to identify
sort of three principle things I took away from that experience
and my succeeding related experience at the Justice Department,
is, 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 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 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, the State Department,
Homeland Security, the intelligence agencies, recognize each
other's expertise and equities and work together constructively
in a seamless way. 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----
Chairman Leahy. And you received a lot of compliments from
them.
Just for my remaining time----
Mr. Ogden. I'm sorry.
Chairman Leahy. No, that's OK. In my remaining time I'd
just put into one area that has been raised by a number of us
here. You supervised the 1993 U.S. Attorneys in the Criminal
Division, FBI, and so on. Your background has been in civil
litigation. Do you feel, there, 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
involve 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 am--if I were to be confirmed.
Chairman Leahy. Well, thank you. 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 will yield to one of the most
experienced former prosecutors the Senate has ever had, Senator
Specter.
Senator Specter. 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.
Senator Specter. This is a very, very busy day. We're on
the stimulus package, and in a few minutes a group of Senators,
including myself, will be meeting to try to provide major
modification to the pending bill, so that I'll have to excuse
myself then, too.
I would again renew my call--I see only two of 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, and ask that it
be made a part of the record.
[The letter appears as a submission for the record.]
Senator Specter. I'd ask you at this time if you agree with
the conclusions by the 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. We're entitled to be
provided with documents respecting open or closed cases,
including prosecutorial memoranda, investigative reports, and
the other items specified in that letter.
Mr. Ogden. Senator Specter, I appreciate the question. I
think the subject of oversight is extremely important, and I
know you've been a leader throughout your service in making
that----
Senator 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 of the
Department. It's also the case that there are substantial
equities on the Department's side in--in--with respect to
preserving the discretion and the--and the--and the openness
of--of dialog on pending matters.
Senator 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 met.
Senator Specter. I'm going to--I'm going to--I'm going to
have to move on. I consider that a non-answer, candidly. If you
could give a more 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----
Senator Specter. I'm asking you for your opinion.
Mr. Ogden. I don't have a--I don't have an opinion,
Senator.
Senator Specter. Then let me move on to another issue.
Mr. Ogden. Okay.
Senator 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 on the gift,
there must be ``a link between the thing of value 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.
Senator Specter. Well, of course you'll follow the Supreme
Court's guidance. But my question to you goes as to your
judgment as to 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.
Senator 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 Mukasey v. Planned
Parenthood, where you say this: ``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
preexisting emotional problems. It is grossly misleading to
tell a woman that abortion imposes possibly detrimental
psychological effects when the risks are negligible in most
cases.''
Surprise me a little. What is the basis for the asserted
``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 in an amicus
brief in which the purpose was to attempt to present the
empirical evidence. 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 would, we hope, be useful to the court. Those positions
were the positions at the time--I believe it was in the early
1990s--of the American Psychological Association and of the
scientists who participated, and we would typically----
Senator Specter. Are you making a distinction between that
period of time and what might be the conclusions now?
Mr. Ogden. It's certainly possible. The brief presented the
evidence, and 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----
Senator Specter. I understand----
Mr. Ogden [continued]. Of those scientists.
Senator Specter. 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----
Mr. Ogden [continued]. Well, Senator, I'm not a
psychologist.
Senator Specter. 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. United States, where we had the
issue of the Children's Internet Protection Act, which required
public libraries to shelter minors from obscenity, pornography.
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 is a judicial
determination.
We might be wrong. We use our best judgment as to what is
constitutionally protected. I believe there ought to be very,
very wide latitude on the speech issue and on the reading
issue. When I used to have a law enforcement responsibility, I
took a very broad view of this. But 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, 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--on that,
Senator. I think as a--as a--as a preliminary matter, of
course, protected materials--constitutionally protected
materials, as to adults, 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. I
think that power is entirely appropriate.
Senator Specter. Senator Whitehouse.
Senator Whitehouse. Mr. Chairman, I will yield my time,
since I'm going to be conducting the hearing here through to
the bitter end, to the distinguished Senator from Wisconsin.
Senator Feingold. 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, for your willingness to take this on. 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 in 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?
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, as 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 is to present their views as--as--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. 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 for 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.
Senator 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 8 years and try to make sure that
people who are 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 past few years have uncovered.
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 on how that assessment should be done.
Can you give us a little idea 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.
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.
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--we have the--the right
decisions and the right practices being made with respect to
hiring, make sure that prosecutorial decisions are insulated
from--from improper influence. So it will be a matter of
talking with the people who've looked at these things, who have
experienced them, and then responding appropriately.
Senator Feingold. Thank you.
Another issue I discussed with the Attorney General at his
hearing was the Federal death penalty. 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.
Now, 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. Now, 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.
Senator 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 U.S. 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 decisions
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.
Senator Feingold. I 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, Stuart Gerson, Daniel Evan, Don Bellenger, and Reginald
Brown. I was struck particularly by how many of their
testimonials remark on your willingness to listen to opposing
viewpoints.
I'd like to hear from you whether you think that quality is
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 is something that is extremely important to me, to have
their respect and their support.
Senator Feingold. Mr. Ogden, I greatly look forward to
working with you.
Thank you, Mr. Chairman.
Senator 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.
Senator Hatch. Well, thank you. Thank you, Mr. Chairman.
Mr. Ogden, welcome to the Committee. I have great respect
for your academic record. 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. 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 courts 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 was
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. The court agreed that it could be--that it should be
fixed. The Congress fixed it. I think that the law is
constitutional as it stands today.
Senator Hatch. Thank you.
Yesterday I received an article about your nomination that
appeared on X-Biz, which is the news agency for the pornography
industry. It states, ``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.''
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
``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. They did so 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 U.S. 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 a new twist to try to weaken
their enforcement from what Congress intended to make--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--is
abhorrent and it deserves the full sanction of the law, and--
and--and--that is--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--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 ultimately--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--to--if I am 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.
Senator Hatch. I appreciate that.
I'll be a little bit over on this question. In your brief
in Roper v. Simmons--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 Hardigan v. Sabarez, 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? 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--in the--in the Casey
case, or Hardigan 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--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.
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 case. In the--in the death penalty case, nobody was
arguing--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--
that he was not responsible for that decision.
The question was whether, as a society, we are 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
psychologist 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.
Senator Hatch. Mr. Chairman, I may not be able to return.
Can I just ask one more?
Senator Whitehouse. Senator Wyden.
Senator Hatch. Do you have any objection, Senator Wyden?
Could I ask one more question?
Senator Wyden. Absolutely.
Senator Hatch. I am going to try to return, but I may not
be able to.
In your brief for the ACLU and the Knox v. United States
case about child pornography--as you can see, I'm one of the
authors of these bills so I take great interest in this. 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.
Yet, in briefs you've filed and an article you've written,
you argue just the opposite about the Constitution. You urge
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.
Now, I guess what I'm asking is, which is it?
Mr. Ogden. Well, Senator, it is, No. 1, 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 an 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 a bill, a 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.
Senator Hatch. Really?
Mr. Ogden. Well, I certainly am capable of it.
Senator Hatch. We up here are very capable, too.
Mr. Ogden. I appreciate that, Senator. But what I've
attempted to say, and what I firmly and strongly believe, and
what I think I said to Senator Sessions once long ago when we
had a discussion 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.
Senator Whitehouse. Senator Wyden, thank you for
accommodating our distinguished colleague with his extra time.
You are recognized.
Senator Wyden. Thank you, Mr. Chairman.
Welcome, Mr. Ogden. Along with Senator Whitehouse and
Senator Hatch, I also serve on the Intelligence Committee, 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. 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--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.
Senator 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--with basic values. So certainly there would have been big
questions. There would have been big push-back. 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.
Senator Wyden. So when you say there would have been a lot
of push-back, 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--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 dialog 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. I think that that process would--would have done
that.
Senator 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.
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. 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.
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, 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 ensures 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 get into the
public domain?
Mr. Ogden. Senator, I absolutely will commit to take a
fresh look at this issue, if I am confirmed. There are two
great imperatives here. One is the imperative of protecting the
national security. 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. I will certainly look at that and
see if there's more that can be done.
Senator Wyden. Can I ask one other question, if I might,
Senator Whitehouse?
Senator Whitehouse. Of course, Senator. Then I think we'll
probably take a 5-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.
Senator Wyden. Senator Sessions, is that all right if I ask
one additional question?
Senator Sessions. Sure. Yes.
Senator Wyden. Thank you.
I had one question.
Senator Sessions. Make it a good one.
[Laughter.]
Senator Wyden. I'll make it a short one. I 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
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 8-year period.
Obviously, the important, I think, part of the question--
the end of your question where you focus on, what do you do
about recommendations from career prosecutors, they're
incredibly important. 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.
Senator Wyden. I look forward to supporting your
nomination.
Thank you, Mr. Chairman. I hope we didn't lose Senator
Sessions.
Senator Whitehouse. I think once the Senator was made aware
that there would be a 5-minute recess, he took advantage of the
break himself.
We will stand in recess for 5 minutes and reconvene at 2
minutes before the hour.
Mr. Ogden. Thank you.
[Whereupon, at 10:53 a.m., the hearing was recessed.]
AFTER RECESS [11 a.m.]
Senator Whitehouse. The hearing will come back to order,
and the distinguished Senator from Alabama, a former U.S.
Attorney himself, is recognized.
Senator Sessions. Thank you, Mr. Chairman.
I just really appreciate Senator Wyden's 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.
The 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 OK, 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 U.S. military. We've gone and we've
somehow got it in our minds that we've had a massive violation
of some of the most dangerous prisoners the war--we've ever
seen in any war, have been damaged. That's just not so. You and
I talked about that.
Mr. Ogden. And we agreed on it, Senator.
Senator Sessions. Thank you.
And I do think, and do you not agree, that the law--that
the FBI, whose jurisdiction is domestic law enforcement,
should--would naturally adhere to different standards of
enforcement and inquiry in interrogation than might be
necessary for a prisoner of war, a person who--a terrorist who
had 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 want to--I think it's very
important that the government look at very closely. I haven't
been exposed to the classified information yet.
Senator Sessions. Well, but look. Look----
Mr. Ogden. And I think that may well be.
Senator Sessions. Well, look. The FBI--one of the things I
think we learned from 9/11, do you not agree, that we cannot
treat attacks on the United States by combatants, legal or
illegal combatants--these were mostly--they were all illegal.
They don't get the same protections in a war-time situation
that an American citizen gets who's investigating--being
investigated for robbery, or dope dealing, or even murder.
Mr. Ogden. I do agree with that.
Senator 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.
Senator 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. I think--as I recall, the ACLU was one of the
clients. Others were the Library Association and the
Booksellers Association.
Senator Sessions. Who paid your fee?
Mr. Ogden. You know, I--I think it's--I don't know how
long, 15 years ago, and I just don't remember the details of
that.
Senator Sessions. You don't remember who paid your fee?
Mr. Ogden. I--I don't recall. I don't recall if----
Senator Sessions. You should be able to remember that.
Mr. Ogden. Yeah. You'd think that would be the most
important thing. But I don't recall. 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 just don't recall.
Senator 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 hard core pornography, even if children might
have access to it, because of the Constitution. I always
thought that was not a sound view and was amazed by it.
So finally the U.S. 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--and some library science Ph.Ds who had ideas about
how libraries should be run. I don't believe the ACLU was a
client in that--in that matter.
Senator Sessions. And I guess my next question is, what do
you personally think about this? It would trouble me that
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--that--that children be protected from
exposure to material that's--that's obscene as to them. I think
that's a different standard 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, but----
Senator 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. That's what led to the conflict, did
it not?
Mr. Ogden. Well, my--and I--it's--we're going back a ways
and I don't remember the details. But--but I think the
situation was, they were concerned not about that principle,
but about--but about the effect of the particular rule on--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. I think that the courts have so ruled,
and I entirely agree.
Senator 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's correct.
Senator Sessions. 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. Justice Blackman,
perhaps unwisely, and perhaps a good example, opened all his
records, including your memorandum to him, which I think is
cause for pause. But that was his decision, 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 activists' court decisions. You said, I think, in the case
before him, ``I think this is a very important principle. It
will prevent the `morality'-based type of regulation at issue
here from being employed to stop the advertisement of a host of
products which the `Moral Majority' types, or their successors
in interests 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've 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. 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--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 them 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 talking to me, I disapprove. I would
disapprove.
Senator Sessions. The question I--Justice Kennedy's
question--my time's up--was really that morality couldn't
provide a basis for congressional statute. I guess thousands of
years have taught us that certain things tend to be--have bad
consequences and certain things tend to good, and Congress
periodically considers those things. We may not have the
American Psychological Association before us at that moment to
divine what's right and what's wrong. We have to decide that.
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 interests
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 would not disqualify you.
We'll have a second round? Is that right?
Senator Whitehouse. Of course.
Let me now recognize Senator Kaufman.
Mr. Ogden. Mr. Chairman, may I just make a brief response
or would that be out of order?
Senator Whitehouse. No. You're welcome to. Then we'll turn
to Senator Kaufman----
Mr. Ogden. I just wanted to express--I'm sorry.
Senator Whitehouse [continuing]. Who has been waiting
patiently.
Mr. Ogden. Senator, if I may just respond briefly to
Senator Sessions.
Senator Whitehouse. Be my guest. Sure.
Mr. Ogden. Thank you.
I wanted to express my appreciation to you, Senator, for--
for your--for your remarks and for your questions, and I--I
certainly understand the reason that you would ask about--about
these things. I'll be very pleased to respond, either in your
second round or--or in written form to your questions on that--
on that subject.
Senator Whitehouse. Senator Kaufman.
Senator Kaufman. Mr. Ogden, congratulations.
Mr. Ogden. Thank you, Senator.
Senator Kaufman. Really, thank you and your family for
taking on this new position of 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. I'm sure you will do a
good job.
Just to follow up. Can you point to some things in your
record that would reassure us on how you deal with with
children and families?
Mr. Ogden. Well, thank you, Senator, for the question. I
can assure you and--and--and--and the--and the Committee that
issues of children and families have always been of great
importance to me. One of the--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 tend to make their
testimony less accurate. We argued that they should be allowed
to testify in these important criminal matters by closed-
circuit television. That brief was something that the court
took very seriously and it helped them decide that issue. I
think that was--that was important--important to me.
In the government, I worked, as I said, to defend major
child pornography and child obscene, as to children,
legislation and did so aggressively. 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--on those
cases.
Senator Kaufman. Let me confirm, what are going to be kind
of your top priorities as Deputy Attorney General?
Mr. Ogden. No. one, national security. We need to ensure
that the American people are safe, that--that terrorism is
combatted 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 any rule of law bucket.
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--to try to refine those and--and just do the best we can.
Senator 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 a cause in the drop of crime. Do you have any
thoughts about what you'll be doing, coming as Deputy Attorney
General, to try to get back to some of the programs that worked
in the 1990s?
Mr. Ogden. It's absolutely critical that we restore the--
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 worked, and I
think we need to--to--to fully fund them.
Senator Kaufman. And I think we all agree the number-one
priority should be national security, but there seems to be
kind of--in the shift to do national security, maybe we haven't
done as much as we would in the other areas you talked about,
which are crime and finance. Could you talk a little bit about
how we get back to, you know, doing the 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--
the--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
were--who were running these programs. You've got to figure out
where you can save, the things you can do that 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--the--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--who are on the ground doing the work.
Senator Kaufman. You know, there's a lot of talk in the
popular press about financial people that are committing
financial crimes, or alleged financial crimes, so sometimes I
think it's dismissed by people when elected officials talk
about it as purely political. But I can tell you, talking to my
colleagues, it comes right from the gut. People are really
upset with the fact of what went on in Wall Street, and upset
with 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
can--I don't want to go back. I want to look forward. I really
do want--I think, 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 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 the--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 am
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--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. I would say that--
that--that serving jail time may well be an appropriate result
that could--could be a big deterrent in the future, because--
because that's what this is about.
Senator Kaufman. When we get down to that, could you keep
the Committee informed? I would personally like to know what it
is we're doing, and 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 a program to try to--
they feel that people are getting away with murder, or
something short of murder, and anything you'd be doing in this
area in a timely manner, realizing your 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 dialog with this Committee.
Senator Kaufman. Thank you. Good luck.
Mr. Ogden. Thank you. Thank you very much.
Senator Whitehouse. The distinguished Senator from Arizona,
Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman.
Welcome.
Mr. Ogden. Thank you, Senator.
Senator Kyl. 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 have the capacity
to make an abortion decision.
If you believe that 14-year-old girls have that capacity,
then did 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 timeframe, on behalf of the
American Psychological Association, which was my client and--
and hired me to--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.
Senator Kyl. So let me just be clear.
Mr. Ogden. And that was the view. That was what we did
there, and that's what that brief was.
Senator Kyl. You understand our time is kind of constrained
here.
Mr. Ogden. I'm sorry. I apologize.
Senator Kyl. So if you could get to the point quickly.
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--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--of a client that 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 those
views.
Senator Kyl. But that was the argument that you made in the
brief.
Mr. Ogden. That was the argument that I made for
psychologists.
Senator Kyl. Okay.
Mr. Ogden. But--but what I wanted to emphasize, Senator,
was my commitment to protecting minors from material that is
obscene as to them.
Senator 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. 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 v. United States, correct?
That's been discussed, I think, briefly here.
Mr. Ogden. I did.
Senator Kyl. And that case presented the issue, how to
define child pornography under Federal pornography statutes,
right?
Mr. Ogden. That's correct.
Senator Kyl. Now, the defendant in the case was convicted
under those statutes after U.S. Customs intercepted foreign
video tapes 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 contained numerous vignettes of teenaged 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, or 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 in the promotional brochures distributed by Nathir
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.
Senator Kyl. But you didn't see the material yourself?
Mr. Ogden. I did not.
Senator Kyl. But your brief argued that it didn't
constitute child pornography. Is that not correct?
Mr. Ogden. Yes. And the--and the--and the basis for the
argument which was made on behalf of the librarians and the
booksellers of this country was that--that they just wanted a
clear line which they hoped would be of nudity, that you
couldn't have child pornography unless there was nudity. That's
what they argued for. That argument lost and--and that's not
the law. I think that's--that's appropriate.
Senator 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--have understood it. That was an argument made
for a client. As--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, Senator, of
doing that.
Senator Kyl. Well, let me ask you this, yeah, 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.
Senator Kyl. Let me ask you about foreign law, because you
submitted a brief in Roper v. 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--which
provision. That was an Eighth Amendment case, and some Justices
of the Supreme Court looked 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. statutes, and
that's where we should--should--should focus our attention.
Senator 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----
Senator 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've said things that--that--that
were not expressed well. And I certainly don't agree that--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--and a--and a relatively powerless person is
the law, and the question is, how is the law written and what
should--and--and--and what is the law as--as established? And
that's my view. Frankly, I've represented parties on all sides.
I've 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--of--of the
question, I think it's important, as I think the President
does, that--that--that--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.
Senator 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 a
representative of all of the people of the United States, it
will 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.
So, it's not so much a question, but a 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--as a legislator. 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--if
I might add, is that I have experience with this, having been,
for six and a half years, in the Federal Government, dealing
with issues that related to issues that--that I had advocated
on for clients previously. And I--and I'm quite proud of my
record. I--I very consistently, I think, did that.
I had the support of--of--of people who were involved and--
and saw me do that who--who I think will testify, and have
spoken for me, that I do and have put the interests of the
United States and the rule of law ahead of any other
consideration.
Senator Whitehouse. Indeed, that's one of the joys of
government service.
Senator Cardin.
Senator Cardin. 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.
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 has been
interpreted by the courts?
Mr. Ogden. Absolutely, Senator.
Senator Cardin. Thank you. I think that's the key point
here. We certainly understand your position in representing
clients. I appreciate that clarification for the record.
I want to talk a little bit about the U.S. Attorneys and
the supervision of U.S. Attorneys. My colleagues have already
brought up the politicization of the U.S. Attorney's 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 as to--as to--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--that vary from jurisdiction to
jurisdiction.
I think what it requires is identifying what the national
priorities are and communicating those very clearly, at the
same time having a dialog 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--that a dialog at the local level, setting
priorities, is important at the same time that we have national
direction with respect to national priorities.
Senator Cardin. 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 interests 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 dialog and--and--and make it
possible to really understand the problems each U.S. Attorney
is confronting and support them appropriately.
Senator 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 has 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, 5 grams will trigger a minimum sentence of 5
years for crack cocaine violations, whereas powdered cocaine,
it's 500 grams, so you have a 100:1 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--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--powdered cocaine, as you say, a
100:1 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.
So we would engage there. We would look at--at--at all
the--at all the potential options and then work closely with
this Committee to try to develop an approach that--that--that
eliminates the disparity, or at least reduces it very sharply.
Senator Cardin. I just want to point out one more part on
this disparity. 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 underlying 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. 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 and to all communities.
Mr. Ogden. Senator, what you say about the statistics
concerns me. I'm not familiar with them. I will certainly look
into that issue. I agree with you. We need tough, firm, smart,
but fair law enforcement at every level, from the--from the
prosecutorial level, throughout our system.
Senator Cardin. Thank you.
Thank you, Mr. Chairman.
Senator 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.
Senator Whitehouse. And I want to let you know 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. Well, thank you.
Senator 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've 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 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--that
public release of--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.
Senator Whitehouse. We'll send you the letter and follow
up.
Mr. Ogden. Thank you.
Senator Whitehouse. Similarly, I had a question about the
investigation of the interference with our U.S. Attorneys that
has been transferred to Ms. Dennehy, the U.S. 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 has been
resolved. It may very well be that Ms. Dennehy has been
authorized and has sought the permission of the court to
provide information to OIG and OPR so they could 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 and I would like
your commitment that you will, in due course and in a
reasonable timeframe, 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 is being done and get back to you with whatever we can
possibly tell you about that.
Senator Whitehouse. Thank you.
I am also concerned about the executive privilege
assertions that have been made by the previous administration.
As an Attorney General, as a Governor's legal counsel in Rhode
Island, I've 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 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 related to executive privilege as possible.
If we can sort of cabinet 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. I'd like to hear your thoughts on that.
Mr. Ogden. Well, you--you--Senator, I think it's a very
interesting idea. You raised it in our--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--as I said to
Ranking Member Specter earlier, that the engagement with this
Committee on oversight, and with the Congress as 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--with Attorney General Holder. I think
ultimately that is probably his call.
Senator Whitehouse. And 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--so that we try to at least
have all thoughts and ideas together as we--as we fashion our
approach.
Senator Whitehouse. A 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 whistleblowers. 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'll be, hey,
boss, I've had this memo in my, you know, drawer for 6 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, and have appropriate
action taken. I think if that's just left to the ordinary chain
of command, it might get confused. I hope you'll consider
specifying, whether the Attorney General will consider
specifying within the Department how such disclosures are to be
treated.
Mr. Ogden. Well, I think that, 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--to make complaints. And I will say--and to bring
problems to--to the attention of management. 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 in any other
administration going forward. This is--the business of making
sure that we're doing the right thing is an ongoing business,
and--and so my commitment will be that we will--I 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--to
raise issues that need to be addressed.
Senator Whitehouse. Thanks, Mr. Ogden.
A vote will be going off shortly. Senator Sessions has
asked for a second round. In the time that we have available,
he's welcome to take that time.
Senator Kyl.
Senator Kyl. Mr. Chairman?
Senator Sessions. I will yield to Senator Kyl.
Senator Kyl. 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 and the
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 in our previous exchange--you alluded to
the arguments you made on behalf of clients, but you also have
said some things about your own personal views. I wonder how
extensive they would be carried into your new position.
In a 1990 tribute to Justice Blackman, you praised the
Justice's separate opinion in the affirmative action case,
Regents of the University of California v. 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, ``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
think intended--and again, the failure of expression is
entirely my fault. What I meant to articulate was that his--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 multi-
factored 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.
Senator Kyl. Thank you.
And thank you, Senator Sessions.
Senator Whitehouse. Does Senator Cardin wish a second
round?
Senator Sessions. I was going to use the rest of his two
and a half minutes he left me.
First, I want to say, another example about your memo to
Justice Blackman 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 a memorandum to him from his staff revealed every time
somebody would like to peruse it and see what they told you. I
think there is a legitimate basis for any administration to
assert reasonable standards of confidentiality within its own
house and within its own debate.
Do you think that's----
Senator Whitehouse. I do agree with that, Senator.
Senator Sessions. Thank you. Very good.
Mr. Ogden. And I'm on board, too.
Senator Sessions. OK. Good.
In Simmons, you argued that--this is a death penalty case
which was a 17-year-old who committed 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 you argued international
law should be considered by the United States Supreme Court as
part of evolving standards of decency, and 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--I think it's an interesting
question, whether evolving standards of decency. And that's not
my phrase, of course, Senator, that's the----
Senator 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.
Senator Sessions. That is true, the phrase preceded you.
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. The question
whether practices in other countries should inform our view of
what evolving standards of decency are, I think, is a difficult
question. The court is divided on it. I think it's probably
relevant in thinking about these issues, but--but it's really
not so much foreign law as foreign practice.
But the fundamentally important thing is domestic law,
domestic practice, because the evolving standards are our
standards, the American people's standards.
Senator Sessions. Well, I think it's one thing to
appreciate the logic of a court in the United Kingdom, but I'm
not sure there's any relevance at all to an interpretation of
United States Supreme Court what a Parliament of France, or
China, or any other place did.
Mr. Ogden. I--I agree with--I agree with you.
Senator Sessions. Isn't there a danger when you use--allow
a judge to take a statute 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 have otherwise 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--with many,
particularly, constitutional provisions, that--that there has
to be great rigor in applying them to avoid just that kind of
problem, and I think it's extremely important.
Senator Sessions. We're concerned about that. It's a
dangerous trend. If you love this Constitution and you really
respect it--I believe Professor Van Alsteen 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.
Mr. Ogden. I have one--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. The question there was whether it was cruel
and unusual to punish, with death, somebody who was a minor
when they committed the crime. The----
Senator 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----
Senator Sessions. If it allows an event and--and 50 percent
statutorily--or 80 percent of the States statutorily constrict
that power, which they may have a right to do, it 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. Cruel and unusual punishment is
prohibited. I think that's why----
Senator Sessions. Both--both cruel and unusual.
Mr. Ogden. It must be both. 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.
Senator 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.
Senator Sessions. Thank you, Mr. Chairman.
Senator Whitehouse. Senator Cardin.
Senator Cardin. Thank you, Mr. Chairman.
Senator Whitehouse. For a second round.
Senator Cardin. 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 is 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. I think
we all agree on that. So I just--I thought that exchange was
helpful and I must--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. I
thank you for including us as your partners.
Thank you, Mr. Chairman.
Mr. Ogden. Senator, thank you for those thoughtful
comments.
Senator Whitehouse. 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
Brinkman, former Assistant to the Solicitor General; Bill Land
Lee, former Assistant Attorney General of Civil Rights
Division; Carolyn Lamb, former president of the District of
Columbia Bar; Carter Phillips, former Assistant to the
Solicitor General; Christine Gregwar, 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; Duvall Patrick, the Governor of the State of
Massachusetts and the former head of the Civil Rights Division
of the Department of Justice; Doug Ganssler, 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 Grellick, former Deputy Attorney General, a predecessor
of yours; Janet Reno, former Attorney General; Joanne 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; Manis Cooney, former chief counsel of
this Committee; Michael Horowitz, Commissioner of the United
States Sentencing Commission; Paul Kapuccio, 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, as Attorney General of Iowa;
Todd Stegerda, former Chief Counsel to the McCain Presidential
campaign; Todd Zebler, 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
Narcotics Officers Association Coalition; the National
Sheriff's Association; the Police Executive Research Forum; the
Community Anti-Drug Coalitions of America; the National Center
for Missing & 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 & Girls Clubs of America;
and our Judge Advocates General.
[The letters appear as a submission for the record.]
Senator Whitehouse. 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.
The hearing is adjourned.
[Whereupon, at 12:02 p.m., the Committee was adjourned.]
[The biographical information of David W. Ogden follows.]
[Questions and answers and submissions for the record
follow.]
NOMINATION OF DAVID S. KRIS, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL,
NATIONAL SECURITY DIVISION; AND DAWN E. JOHNSEN, NOMINEE TO BE
ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL
----------
WEDNESDAY, FEBRUARY 25, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:21 p.m., room
SD-226, Dirksen Senate Office Building, Hon. Dianne Feinstein,
presiding.
Present: Senators Feinstein, Feingold, Durbin, Cardin,
Whitehouse, Kaufman, Specter, Hatch, Sessions, Graham, and
Cornyn.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S SENATOR FROM
THE STATE OF CALIFORNIA
Senator Feinstein. I'm going to begin this hearing. I know
Senator Specter is voting now--we just had a vote at 2:00--and
is on his way. I believe he has a time problem, so if I'm in
the middle of my opening remarks I will let him go ahead and
then finish my remarks when he concludes.
In today's hearing, we will hear from David Kris, who has
been nominated to be Assistant Attorney General for the
National Security Division, and from Dawn Johnsen, who is
nominated to head the Office of Legal Counsel. Obviously, both
are within the Department of Justice.
These are both extremely important positions. The National
Security Division is the part of the Justice Department that
handles all national security matters. It was created by
Congress as part of the reauthorization of the PATRIOT Act in
2006, and it's responsible for the following: Investigating
reports of terrorist activity, prosecuting people who threaten
our national security, handling applications to the Foreign
Intelligence Surveillance Act Court to conduct foreign
intelligence surveillance, and advising the Attorney General on
intelligence issues and national security policy matters.
David Kris is a nominee who has both figuratively and
literally, written the book on national security. He has spent
11 years as a prosecutor in the Justice Department and he knows
its national security functions well. During the Bush
administration, he was Associate Deputy Attorney General for
National Security, where he litigated national security cases
and oversaw intelligence activities.
When Congress considered merging the Department's national
security functions under a single office, Mr. Kris was one of
the experts consulted. He is also the co-author of the most
widely used legal treatise in this area. His book, titled
National Security Investigations and Prosecutions, provides a
step-by-step analysis of all the law that governs government
activity in response to terrorist threats. In addition to his
expertise, he has received high marks for his commitment to the
rule of law.
This committee has received letters of support for the
nomination from former officials like Larry Thompson, who was
Deputy Attorney General during the Bush administration, and
from David Cole, a Georgetown law professor who has written
extensively on civil liberties. Cole described Kris as
``genuinely committed to protecting both security and
liberty.''
Another important endorsement letter came from Stuart
Baker, who was the head of the NSA under the first President
Bush and under President Clinton. He described Kris as an
official who knows that ``the rule of law is consistent with an
aggressive pursuit of the national security interests of the
United States.'' By all accounts, Kris is a highly qualified
nominee and we look forward to hearing from him today.
Our second nominee, Dawn Johnsen, has similarly strong
experience. Professor Johnsen has been nominated to be the
Assistant Attorney General for the Office of Legal Counsel.
This office answers some of the government's most difficult
legal questions and is responsible for providing objective
legal advice to the entire executive branch of our government.
Ms. Johnsen knows this office well. She worked at OLC for 5
years during the Clinton administration and served as its
acting head from 1997 to 1998. She knows its ins and outs and
will be ready from day one.
As has been well documented, the OLC underwent a troubling
transformation during the Bush administration. It became a
rubber stamp for some of the administration's worst abuses of
power. This is the office that issued the torture memo in 2002,
advising the President that interrogation techniques were not
torture unless they inflicted pain ``equivalent in intensity to
the pain accompanying serious physical injury, such as organ
failure, impairment of bodily function, or even death.''
A month later, the office wrote that the President could
use military force against Iraq without congressional or
international support, based in part on a new theory of
``anticipatory self-defense.'' In 2003, Jack Goldsmith, a
respected conservative lawyer, came in to run OLC, but he found
the problem so widespread that he resigned in less than a year,
saying that he was ``disgusted with the whole process.''
Today, there are still over 35 secret OLC opinions from the
2000 to 2005 period that deal with important national security
issues and that the Bush administration has refused,
consistently, to release. One of these documents, for example,
is believed to say that the Fourth Amendment does not apply to
military operations on United States soil.
President Obama is well aware of these problems and he has
chosen Dawn Johnsen to restore the office to its position as
``the conscience of the Justice Department.'' Johnsen has
already demonstrated that she has plans for reform. In 2004,
she published a statement with 18 other OLC officials called
``Principles to Guide the Office of Legal Counsel.'' The
statement lays out historical ground rules for how OLC should
be run. Let me read you a few of these principles:
``OLC's advice should be thorough and forthright. It should
reflect all legal restraints, including the constitutional
authorities of the courts and Congress.''
Second, ``OLC should maintain internal systems and
practices to help ensure that OLC's legal advice is of the
highest possible quality and represents the best possible view
of the law.''
Finally, ``OLC should publicly disclose its written legal
opinions in a timely manner, absent strong reasons for delay or
disclosure.'' Those three things are exact quotes.
These statements give me great confidence in Professor
Johnsen, and I look forward to hearing more from her at the
appropriate time about her plans today. But I want to commend
both Ms. Johnsen and Mr. Kris for their willingness to take on
their very critical positions.
We are still waiting for Senator Specter. I see Senator
Bayh, who's going to make an introduction, has arrived.
Does any other member here wish to speak? Otherwise I will
call on Senator Bayh.
Senator Cornyn.
Senator Cornyn. Madam Chairman, unfortunately I'm going to
have to leave for a meeting with the White House counsel. I
just wanted to say, I am pleased that we're having these
hearings today. I'm going to be submitting questions for Ms.
Johnsen. I have some very serious concerns about this
nomination, and look forward to getting the answers to the
questions. Hopefully that will help clear them up. I'll submit
those for the record.
Senator Feinstein. Fine.
Senator Cornyn. Thank you very much.
Senator Feinstein. Thank you very much.
Senator Feinstein. Senator Hatch.
Senator Hatch. No, that's all right.
Senator Feinstein. OK. All right.
Senator Bayh, welcome to the Judiciary Committee.
PRESENTATION OF DAWN E. JOHNSEN, NOMINEE TO TO BE ASSISTANT
ATTORNEY GENERAL OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE
BY HON. EVAN BAYH, A U.S. SENATOR FROM THE STATE OF INDIANA
Senator Bayh. Thank you, Madam Chairman. It is a personal
pleasure for me to be here. My father had the privilege of
serving on this Committee for 18 years, and so it has a special
place in the hearts of all members of the Bayh family. So,
thank you for your courtesy today.
Senator Hatch, it is good to be with you once again as
well.
Madam Chairman, Senator Hatch, other distinguished members
of the Committee, thank you for this opportunity today to
introduce an individual for whom I have great respect and
confidence, Professor Dawn Johnsen. Professor Johnsen is an
accomplished scholar and experienced government lawyer who is
well-qualified to serve as Assistant Attorney General for the
Office of Legal Counsel.
Her experience as Acting Assistant Attorney General under
President Clinton means she will be ready to provide the
President and the Attorney General with outstanding legal
advice from day one. In particular, she already understands the
challenge of providing advice that is grounded in the law, and
mindful of the separation of powers enshrined in our
Constitution.
As someone whose family suffered losses in the attacks on
September the 11th, Professor Johnsen understands the serious
and sobering challenges that threaten our Nation's security.
But she also knows that we can defeat our enemies, no matter
how determined they may be, without sacrificing our cherished
American values and ideals.
Professor Johnsen has also demonstrated the intellectual
heft required of this position. She is a graduate of Yale
College and Yale Law School--which I suppose, if you can't go
to Indiana University, is not half bad--where she served--let
the record show, that was a humorous aside, Madam Chairman.
[Laughter.]
Where she served as editor of the Yale Law Journal.
As a professor of law at Indiana University, she has
written extensively on constitutional law, the separation of
powers, and legal constraints on executive power. There is no
doubt that she has both the knowledge and expertise to help
navigate the challenging matters of law and justice which
confront our new President.
One of the most important qualifications for any high-
ranking government lawyer is good judgment. Professor Johnsen
demonstrated outstanding judgment when she married into one of
Indiana's outstanding families. Professor Johnsen and her
husband, John Hamilton, who is the nephew of former Congressman
Lee Hamilton, with whom members of the Committee may be
familiar, exemplified the best Hoosier values of family and
community. Despite the many demands on her time, Professor
Johnsen is a devoted mother of her two boys, Matthew and Eric,
and teaches Sunday school at First United Methodist Church in
Bloomington.
I have high confidence that, if confirmed as Assistant
Attorney General for the Office of Legal Counsel, Professor
Johnsen will be a valuable member of the new administration and
will provide to our Commander in Chief outstanding legal advice
that he needs to protect and defend our country.
Madam Chair, other members of this Committee, it is my
distinct pleasure to present for this Committee's consideration
Professor Dawn Johnsen.
Senator Feinstein. Thank you very much, Senator Bayh. Your
testimony is much appreciated, and your time as well. Thank
you. If you would like to--I know you have a pressing calendar
with other things. You're welcome to sit with the Committee, or
if you have other--wish to be excused, that would be fine.
Senator Bayh. Thank you, Madam Chairman. As much as I would
love to stay, I have an appointment for which I am already 5
minutes late.
Senator Feinstein. Thank you.
Senator Bayh. So I hope you will forgive me.
Senator Feinstein. We will. Thank you so much.
Senator Bayh. Thank you.
Senator Feinstein. And if the two nominees would come to
the center table, we will begin.
Would you please stand to be sworn?
[Whereupon, the witnesses were duly sworn.]
Senator Feinstein. Thank you very much. Please be seated.
We're joined by Senator Feingold. Senator, we're about
ready to ask questions. Do you have an opening statement?
Senator Feingold. I do not.
Senator Feinstein. You do not. All right.
I think we want to hear from each nominee first. Ms.
Johnsen, why don't we begin with you, and then we'll go to Mr.
Kris. Then we'll open the questions.
STATEMENT OF DAWN E. JOHNSEN, TO BE ASSISTANT ATTORNEY GENERAL,
OFFICE OF LEGAL COUNSEL
Ms. Johnsen. Thank you very much.
If I may take a moment to introduce some family members.
Senator Feinstein. Please.
Ms. Johnsen. May I do that? Thank you very much, Senator.
I have with me today--I'll try to speak fast because I have
a very supportive, loving family. My husband, John Hamilton,
and our sons, Matthew, age 12, and Eric, age 10; my mother,
Carolyn Johnsen; my grandmother, Ruth Downd; my sisters, Jill
Johnsen and Jennifer Johnsen; aunts and uncles, Edward and
Lynnette Downd; Donella Cacciola, who's a long-time employee of
the FBI, along with her husband Anthony; and other assorted
relatives: Nancy Hamilton, Beverly Enjocky, Dawn Guarello,
Joanna Downd, Marco Downd, Barbara and Sean Turner, my former
boss at OLC, Walter Dellinger and his wife Ann, and I have many
other good friends from law school, former colleagues, and I'll
spare you hearing all the names. But I'm so grateful to them
all for being here.
Senator Feinstein. Thank you, and they are welcome. Mr.
Dellinger is well-known to this Committee; we hold him in great
respect. So, we thank him for being here as well.
Please proceed.
Ms. Johnsen. Thank you very much.
Senator Feinstein, Ranking Member Specter, members of the
Committee, it's a tremendous honor for me to be here today. I'd
like to thank each of you and your staffs for your time and
your attention to my nomination. I'd also like to thank Senator
Evan Bayh for that generous introduction and for his great
service to the State of Indiana, and to the United States.
Thank you also for the opportunity to visit my family--to
introduce to you my family. I would like to mention one person
who could not be here, and that's my father, Don Johnsen, who
passed away a few years ago. He worked very hard as a letter
carrier for the U.S. Postal Service, and always a second job as
well, to send me, and my sisters, and my brother all to
college, and all beyond college, which was an opportunity he
did not have. He took special pride in his service in the
United States Navy. My father deeply loved his family and his
country, and he would have--would have loved to see this. He's
passed that love and patriotism on.
In 1976, the bicentennial year of our declaration of
independence, I entered an essay contest. The subject was:
``What Makes America Great? '' I won a $100 savings bond, and I
also had an opportunity to read that essay at the car place,
4th of July, fairgrounds.
I no longer have the essay and I've long spent the savings
bond, but I am quite certain that I quoted Robert F. Kennedy as
follows. It's from the poster I had hung on the bedroom wall of
the room I shared with my sisters: ``The future does not belong
to those who are content with today. Rather, it will belong to
those who can blend reason, vision, and courage in a personal
commitment to the ideals and great enterprises of American
society. I've endeavored throughout my life to do what I can to
serve the ideals and the great enterprises of our great
country.
I'm very mindful of the fact, as I sit here, that we are
not all going to agree on all of the specifics, but I deeply
believe that as Americans we share some bedrock commitments,
including to respect conflicting viewpoints and understand that
people of goodwill inevitably disagree, and that such debate
makes us stronger and better, to protect the physical safety of
the American people, especially today, from post-9/11 terrorist
threats, to uphold our Constitution and our basic values,
including our commitment to limited government that protects
both our physical safety and fundamental liberties, and
finally, commitment to uphold the rule of law.
Commitment to the rule of law is my overriding passion.
It's the imperative that the government belongs to the people
in our system and the officials who lead the government are not
above the law. I had the great privilege of acting on that
imperative when I served at the Office of Legal Counsel for 5
years, from 1993 to 1998.
As more often--does, 9/11 tested our commitment to the rule
of law. Though Indiana is currently my home, I was born and
raised in New York on Long Island. At the time of the attack,
my sister Jennifer had a view of the Twin Towers from her lower
East Side Manhattan apartment, where she still lives. My sister
Jill, who teaches in New York City public schools, when the
planes hit, she had a fourth grade class in her care. I have
many friends--dear friends and relatives who live in New York
and Washington, DC, some of whom did lose loved ones in that
terrible attack on our country.
My thoughts and concerns, though first those were of course
most powerfully of my family and friends who had suffered
wrenching personal losses, but they are also professionally
very much with the government lawyers who bear the tremendous
responsibility of helping our government respond to those
attacks, to keep our Nation safe from future attacks.
My service at OLC gave me some special appreciation, I
believe, for what they confronted and for the outstanding work
of countless dedicated women and men in the years since at OLC,
and all throughout the government. My prior service also gave
me a feeling of special responsibility to speak up later on
when, on several specific occasions, I believed that OLC's
legal interpretations failed to live up to its best traditions.
In my work as an academic, I have sought to be constructive
and to explore the proper scope of Presidential power and the
proper role of government lawyers. Most notably, in 2004, as
Senator Feinstein mentioned, I brought together 19 former OLC
lawyers and we explored OLC's best nonpartisan traditions and
drafted what we entitled, ``Principles to Guide the Office of
Legal Counsel.'' I have appended that same document to my
written testimony that I've submitted to the Committee.
During my 5 years of service, I came to understand that,
above all, OLC must provide the President and others with
accurate, principled legal interpretations, and that my own
personal views on the subject were not what mattered, that OLC
must look to the Constitution and to the laws enacted by
Congress, to judicial and executive branch precedent, and also
to the career professionals throughout the government who bring
the essential experience, expertise, and judgment.
I look forward, should the Senate confirm my appointment,
to serving President Obama, Attorney General Holder, and the
people of the United States in ways that will support the rule
of law and that will protect our mission, and also will look
forward, if confirmed, to working with all of you.
Thank you very much.
Senator Feinstein. Thank you very much, Ms. Johnsen.
[The prepared statement of Ms. Johnsen appears as a
submission for the record.]
[The questionnaire of Ms. Johnsen follows.]
Senator Feinstein. Mr. Kris.
STATEMENT OF DAVID S. KRIS, NOMINEE TO BE ASSISTANT ATTORNEY
GENERAL, NATIONAL SECURITY DIVISION
Mr. Kris. Senator, may I begin also by introducing my
family?
Senator Feinstein. Of course.
Mr. Kris. Directly behind me is my wife, Jody Kris--oh.
Excuse me. Directly behind me is my wife, Jody Kris. Directly
behind her is my daughter Audrey. Next to my wife is my
daughter Hannah--she's taking notes for a report to her second
grade social studies class on this----
Senator Feinstein. We will all be on our toes. Thank you.
Mr. Kris. And next to her is my father, Tony Kris, who has
traveled here from out of town. I do want to make reference to
two people who could not be here, my mother, who passed away
several years ago, and my stepmother, who unfortunately is
unable to attend due to illness. Thank you.
May I proceed?
Senator Feinstein. Please.
Mr. Kris. Madam Chairman, Senator Hatch, and distinguished
members of the Committee, it's an honor to appear before you.
I'm grateful to President Obama for nominating me, to Attorney
General Holder for supporting me, and to the Committee for
considering me. I also appreciate very much the members who met
with me prior to this afternoon, including this morning.
The National Security Division is a new, but vital,
institution of government. To date, it has had only two
Assistant Attorneys General, both of them, like me, originally
career prosecutors. The most recent of these, Patrick Rowan,
was enormously helpful during the Presidential transition
period, and I want to take this opportunity to thank him again.
Pat's predecessor, Ken Wainstein, is currently teaching a
law school class with me. Ken and I agree on some things, we
disagree on other things, but we share a common respect and
appreciation for professionalism and serious legal argument. As
a result, we work well together, even when we differ. In fact,
I think our students benefit from the diversity of views that
we present. They get more from both of us than they would from
either of us.
Together, Ken, Pat, and the men and women of NSD have done
what I think is a remarkable job establishing the Division over
the last 2 years, and I agree with many of the things that they
have done, including NSD's basic organizational structure, its
strong relationships with ODNI and the FISA court, and it's
innovative enforcement of export controls, among others.
Of course, I have some ideas of my own about how to build
on this foundation and move the Division forward. In keeping
with my status as a nominee and as an outsider, these ideas are
necessarily somewhat tentative, but I wanted to share with you
nonetheless in an effort to inform your decision about whether
or not to confirm me.
In the short run, if I were to be confirmed, I would hope
and expect to focus on three procedural/structural issues and
three substantive ones. With your permission, I'll just quickly
lay those out.
First, procedurally, I would like to begin by continuing to
strengthen the connections between and among NSD's various
components. I hope that this will generate even more
coordinated operations and policy development within the
Division, and also continue to foster a distinct DOJ National
Security culture. Fundamentally, NSD exists because of
potential synergies between its criminal lawyers and its
intelligence lawyers, and if I were confirmed I would want to
try to maximize those synergies.
Second, if confirmed, I will focus on NSD's relationships
with the intelligence community and with the National Safety
Council, in part, by continuing to develop the intelligence
perspective and credentials of its lawyers, including its
prosecutors. I will also try to respond appropriately and
quickly to constitutional oversight and maintain strong,
cooperative relationships with this Committee and other
committees of Congress.
Third, I would hope to continue the very positive evolution
of NSD's working relationship with the FBI, particularly at the
operational level. I believe that this will help the FBI
continue its transformation into a security service, and at the
same time enhance protections for civil liberties.
Now, substantively, I also anticipate three areas of focus,
if I am confirmed. First, of course, Guantanamo Bay and the
detainees there. NSD has already briefed its senior career
deputy to serve as executive director of the Gitmo task force,
and I am sure will continue to support the task force, as
needed.
Second, the FISA Amendments Act. This is a new statute, as
the Committee is aware, and I do not yet know exactly how it
functions. But I do know that it provides enormous authority to
the government and underlies what I understand to be an
enormously important collection program. If confirmed, I intend
to learn in detail how it works.
Third, and finally, the FBI's domestic operations
guidelines. In at least two ways, I think these guidelines
reflect positive developments. In other ways, they raise some
questions that I would like to explore further. If confirmed, I
will want to know how the guidelines operate at ground level so
that I can work with the Bureau, advise the Attorney General,
and keep this Committee fully informed.
So again, I want to emphasize that these ideas are
tentative, all six of them, and they will certainly yield to
the ground truth. But they do reflect my current thinking from
my current perspective, and I wanted to put them before you. I
appreciate very much your holding this hearing, and I look
forward to answering your questions.
Thank you.
[The prepared statement of Mr. Kris appears as a submission
for the record.]
[The questionnaire of Mr. Kris follows.]
Senator Feinstein. Thank you very much, Mr. Kris and Ms.
Johnsen. We'll now proceed with questions. We'll have 7-minute
rounds, and I'll follow the early bird rule.
Mr. Kris, let me begin with you. You mentioned Guantanamo.
As we know, President Obama has created the working group you
referred to. There are reportedly three categories of detainees
at Guantanamo: (1) Those who pose no threat and are eligible
for release; (2) those who will be charged, either in Federal
court--court marshal, or military commission; and (3) those who
pose a real threat to the national security, but for whom there
is not sufficient or admissible evidence to be prosecuted.
I'm particularly concerned about this third category, and I
want to ask you a question about the legal authority to hold
somebody in this category. It is my understanding that if an
individual is found by a tribunal to be an enemy combatant,
that the treaties, the laws of war, will permit that individual
to be continued in custody until the conflict is over.
Is this adequate to hold those people who are a security
threat to this Nation?
Mr. Kris. Thank you very much, Senator. I appreciate the
question. There is no more difficult and important matter than
this for the American people right now, and for the new
administration. As you point out, the executive order
anticipates and directs a comprehensive review, and especially
from where I'm sitting now, of course, I don't want to prejudge
the results of that review, and certainly, if confirmed, I
would look forward to supporting it, as directed by the
Attorney General.
I agree with you about the categories of detainees that may
exist. Of course, I haven't seen the information, so I don't
know. And I also agree with you that I think there is authority
to hold enemy combatants, and I'm thinking particularly of the
Supreme Court's decision on the Hamdi case, which said exactly
what you said, that in keeping with the authorization to use
military force and the laws of war and traditional
understandings of the Law of Armed Conflict, there is
authority, at least in the circumstances described there, to
hold enemy combatants for the duration of the conflict. The
court obviously also mentioned the importance of due process
review, and there's a lot of detail there. But I do agree with
your basic point, yes.
Senator Feinstein. Thank you very much.
Now, a question for Mrs. Johnsen. Approximately 40 OLC
memos that were written between 2001 and 2005 are still secret
today. You wrote in the ``Principles to Guide the Office of
Legal Counsel'' that OLC should publicly disclose its written
opinions in a timely manner, absent strong reasons for delay or
nondisclosure.
What do you believe is a reasonable period of time for OLC
to wait before disclosing these opinions?
Ms. Johnsen. Thank you, Senator. The amount of time, I
think, would vary with the opinion. I think in the normal case
it would not need to be any longer than the time it takes for
OLC to consult with the requesting agency to see if they have
concerns about release of the opinion, and whatever time it
takes to process the opinion.
There may be other opinions, though, where there is
classified information in the opinion that would need to be
redacted, or that prevent the opinion from being released at
all at that particular point in time, but with the passage of
time, release may become appropriate. So, it would be a case-
by-case determination. The principles, as you say, call for a
presumption in favor of disclosure, absent compelling reasons
to the contrary. National security clearly would provide one of
the most compelling reasons.
Senator Feinstein. Well, if I understand what you're
saying, it is very vague and imprecise. Would that be correct?
Ms. Johnsen. Well, I can say a little more about what would
help guide whether an opinion should be released or not, and
I'd be happy to talk more about that.
Senator Feinstein. Please.
Ms. Johnsen. I would also say that I think it is important
for the Office of Legal Counsel and Department of Justice
itself to be clear about the guidelines so that Congress and
the public know, what are the standards being applied in
deciding whether to release opinions. But it will, by
necessity, be a case-by-case analysis.
One class--category of opinions about which I have
expressed particular concern in the past, concern about the
failure to release, if not the opinion itself, the fact of its
existence and a description of the legal analysis involves OLC
interpretations of Federal statutes where OLC determines not to
comply with the statute or interprets the statute in a way for
better--for want of a better phrase, in a way that would
surprise Congress.'
We are seeing a few important examples of that in the prior
administration where, in effect, the government was claiming
the authority not to comply with a duly enacted statute and not
letting Congress know about that for months or years. So that's
a category that I would say is a special category. I would say
that Congress and the American people have a special need to
know how the executive branch is interpreting and applying, or
not applying, Federal statutes.
Senator Feinstein. Do you believe that torture can ever be
legally justified under United States or international law?
Ms. Johnsen. No, Senator, I do not.
Senator Feinstein. Do you believe that waterboarding is
torture?
Ms. Johnsen. Yes, Senator.
Senator Feinstein. Do you believe that torture yields
reliable information and intelligence?
Ms. Johnsen. Senator, that is not an issue on which I have
any expertise, and it also is not an issue that would be for me
to say anything about in the position to which I have been
nominated. My role would be to inform the President and the
policymakers of the legal constraints.
Senator Feinstein. Thank you. Thank you very much, both of
you.
Senator Hatch.
Senator Hatch. Well, thank you, Madam Chairman.
Mr. Kris, you've written, testified, and otherwise
advocated lowering the so-called ``wall'' between traditional
law enforcement and intelligence. You appeared before the
Intelligence Committee, upon which both the distinguished
Chairman and I serve, less than 2 weeks after the 9/11
terrorist attacks in your capacity as Associate Deputy Attorney
General, and you advocated this position.
Now, here we are, nearly 7\1/2\ years later, and there has
not been another terrorist attack in America. So, first, I'd
like your brief assessment of that infamous wall. Had it come
down, what would have been the results? What else needs to be
done?
Mr. Kris. Thank you very much, Senator. I think the wall is
down. As a legal matter, it came down in November of 2002 with
the decision of the FISA Court of Review, and then was
reaffirmed in fact as a statutory matter by the reauthorization
of the PATRIOT Act by Congress. So I think legally the wall is
down.
Senator Hatch. Do you agree with that?
Mr. Kris. I beg your pardon?
Senator Hatch. Do you agree with that?
Mr. Kris. Yes, I do.
Senator Hatch. Okay.
Mr. Kris. I'm aware, obviously, of one decision in Oregon
that has gone the other way, but I think the weight of
authority in that decision is on appeal. But I think the weight
of authority is that the wall is down.
Institutionally, or bureaucratically, as it were, the
National Security Division is, in a way, a reflection of the
demise of that wall because it brings together even one
organizational unit within the Justice Department, both the law
enforcement officials, counterterrorism and counterespionage
prosecutors who formerly resided in the Criminal Division, and
intelligence lawyers who formerly resided in the Office of
Intelligence Policies and Review.
I think, as I mentioned in my opening, one of the first
things that I would like to focus on is continuing to
strengthen the internal connections between those two groups in
order to reap the synergies that I think underlie NSD's
creation.
Senator Hatch. Madam Chairman----
Senator Specter. No, you finish your time.
Senator Hatch. I can defer.
Senator Specter. You finish.
Senator Hatch. Okay. Thank you.
Well, I appreciate your answer. At the same time, you've
coauthored the book, National Security Investigations and
Prosecutions. Other experts in this field, some of whom have
testified before this and other congressional committees, have
called this work literally ``the book'' on the subject. I
personally believe you've done an excellent job.
Mr. Kris. Thank you. I very much appreciate that.
Senator Hatch. But in this book you distinguish between
national security investigations and law enforcement
investigations. What's the difference? Why is the difference
important? How can we reconcile lowering the wall and
maintaining the distinction?
Mr. Kris. Well, I think--I guess, two points I would make.
The first, is that in a way the key insight that's associated
with lowering the wall is that prosecution of spies and
terrorists from other nations, security threats, is not an end
in itself, but is another means to the end of protecting
against those threats. It's another tool in the toolbox.
That does not mean, however, that there is no distinction
between, say, ordinary law enforcement against ordinary
criminals--say, a prosecution of Bonnie and Clyde for bank
robbery or something like that, and the use of law enforcement
techniques against genuine national security threats, like
spies and terrorists.
I think the wall and the demise of the wall had to do
really with the latter category, the ability to bring together
all of the Justice Department's tools that can be deployed
against these kinds of threats, the national security threats,
but really wasn't about the use of FISA or other intelligence
collection methods against ordinary criminals committing
ordinary crimes. That really is, I think, distinct and resides
still in the Criminal Division.
Senator Hatch. Now, in Chapter 15 of your book you write
that, ``The President has authority, under Article 2 of the
Constitution, to conduct foreign intelligence electronic
surveillance, including surveillance of U.S. citizens inside
the United States without a warrant, even during peacetime, at
least where he has probable cause that the target of
surveillance is an agent of a foreign power.''
Do you still believe that? How does this differ from what
the previous administration was doing?
Mr. Kris. Yes, I do believe it. I think that the courts--to
the extent that the Courts of Appeals have addressed this
question--obviously, the Supreme Court came closest to this in
the Keith decision but did not address it head on. The lower
courts have, to the extent they have decided it squarely, all
decided in favor of allowing such surveillance in the absence
of the statute. That is different from the question of whether
a president may violate a statute. But in the absence of a
statutory restriction, the line of cases--and you're familiar
with this, Senator--culminating in Tron, do, I think, uphold
the President's authority there.
Senator Hatch. Right.
Recently, a group of judges from around the world issued a
report objecting to the notion that there is a ``war'' on
terrorism, and argued ``the criminal law is the primary vehicle
to be used to address terrorism.'' Do you agree with that?
Mr. Kris. No, I don't think I do. I'm with the Attorney
General. I think we are at war. I think the Law of Armed
Conflict applies. In my answer to Senator Feinstein I referred
to the Hamdi decision and the authority to detain, in keeping
with the Law of War. So I don't think I agree with that
statement, if I understand it correctly.
Senator Hatch. The Attorney General did say, ``There is no
question but that we are at war.'' I'm happy to have your
testimony.
I assume you're familiar with the system of the Foreign
Intelligence Surveillance Court of Review. It was considered
last month--last August, I guess, but made public about a month
ago.
Mr. Kris. Yes, sir.
Senator Hatch. The court held that the Protect America Act
of 2007, which allows warrantless foreign intelligence
surveillance, is constitutional. Now, I wanted to note the
court's holding: ``We hold that a foreign intelligence
exception to the Fourth Amendment's warrant requirement exists
when surveillance is conducted to obtain foreign intelligence
for national security purposes and it's directed against
foreign powers, or agents of foreign powers, recently believed
to be located outside the United States.''
Now, what do you believe is the significant--what is the
significance of this decision, both for what the government has
been doing up to this point and from what the new
administration will be doing?
Mr. Kris. I think the decision--and I have read it when it
was released publicly--is significant. It does interpret the
Protect America Act, which is the predecessor statute to the
FISA Amendments Act, but I think much of it--much of its
analysis would be applicable to the FISA Amendments Act.
I will say that there are portions of the opinion that are
redacted that I have not seen, and I would want to see those
and understand more fully what was going on there. I hope, if I
am confirmed, that I will have that opportunity.
So I guess those are some of the concerns and caveats I
have about the opinion, but I do think it's a well-written
opinion and I do think it does stand for the proposition that
the Protect America Act is constitutional.
Senator Hatch. Well, Mr. Kris, I've limited myself to these
few questions, but I'm well familiar with your work and I'm
well familiar with what you've done. I'm going to support you
for this position. I think you're not only capable, I think
you're an extremely honest and extremely intelligent man. So,
I'm just grateful that people like you are willing to come out
and work with the administration. I think it's important. I
think you'll be a great asset to the Attorney General, and I
wish you well.
Mr. Kris. Thank you very much, Senator. I greatly
appreciate that.
Senator Feinstein. Thank you very much, Senator Hatch.
The Ranking Member of the Committee, Senator Specter, was
unavoidably delayed and is here now, so I'm going to interrupt
and give him an opportunity to make an opening statement.
Senator Specter. Thank you very much, Madam Chairwoman. I
congratulate Ms. Johnsen and Mr. Kris on their outstanding
academic record, their very impressive undergraduate degrees
and law degrees, and on their nominations here.
I begin with you, Ms. Johnsen. I have noted in the staff
memo which has been prepared for me that you have written,
regarding the role of the Office of Legal Counsel, ``The courts
under-enforce constitutional rights and the political branches
have an obligation to fill constitutional gaps, and uphold
rights beyond those that the court will enforce.''
I would disagree with that. The political branch, Congress,
has the authority to establish public policy and decide what
the laws ought to be within constitutional bounds. But when the
reference is made there, as it appears to be, that the Office
of Legal Counsel is going to fill in the gaps, I have a sharp
question, really, of disagreement. You have criticized John Yoo
and the Bybee memo, and they have been characterized as on the
extreme side. A number of your writings, which I'll come to in
a moment, are about as far from the center of the other end of
the political spectrum.
The question that I have at the outset is, isn't it true
that we accept the constitutional interpretation of the courts,
really the Supreme Court or whatever other courts may interpret
the Constitution on paramount authority and the authority of
Congress to legislate, and perhaps to fill in constitutional
gaps as they see it, subject to being overruled by the court.
But it is not the rule of the Office of Legal Counsel to
extend the Constitution beyond what the courts have said, or
the Congress supplementing, plus what the Congress determines
is public policy on legislation.
Ms. Johnsen. Thank you, Senator, for that opportunity to--
to clarify what I was talking about there. And this is a
subject that is also just in the Principles to Guide OLC. There
are some instances in which the executive branch acts where it
is unlikely that there will ever be a court case. When the
Supreme Court speaks, absolutely, that decision was the law of
the land and is binding on Office of Legal Counsel. And if I'm
confirmed, in advising the executive branch, I will be bound
by, and follow, certainly, the opinions of the Supreme Court.
But as the Principles note, there are some questions where
the courts are reluctant to decide the issue or there just
won't be anyone with standing. The court might say it's a
political question. In those instances, as we write in the
Principles, the Office of Legal Counsel and the President have
a special obligation to ensure they're acting within the law,
including protecting individual rights and enforcing rights
that the courts may never have the opportunity to adjudicate.
And even if the courts do reach the question, they may do
so--I think I wrote this in this particular article--in a way
that's very deferential to the President's determinations
because it's a matter of national security, for example, so
deference is appropriate in that kind of situation. So, that's
what I had in mind, Senator.
Senator Specter. Well, in your writings you go pretty far
to one end of the political spectrum. The positions you've
taken on Pro-Choice--I'm Pro-Choice, and I agree with that
doctrine. Some of the Supreme Court decisions don't please me,
but that's the law, they say. But when I read in your writings
that abortion bans go beyond the Thirteenth Amendment, which
bans slavery, and that ``forced pregnancy requires a woman to
provide continuous physical service to the fetus in order to
further the State's asserted interests,'' it seems to me just,
candidly, beyond the pale to say that that's a violation of the
Thirteenth Amendment against slavery.
Do you stand by that statement?
Ms. Johnsen. Thank you, Senator, for that opportunity to
clarify. I was, I have to say, shocked when I saw the--the
National Review article that made certain claims about what I
had written yesterday.
Senator Specter. You did not write that?
Ms. Johnsen. I have never--I did write the part that you
quoted, absolutely. I have never argued that there's a
Thirteenth Amendment violation when the government restricts
abortion. That--I was shocked when I saw that, and it took me a
while to search and find what they were referring to. They made
other claims that were clearly false.
Here, they--I did write a brief 20 years ago, and footnote
23, I found, makes a suggestion that there may be an analogy
between--not what this article said, pregnancy, which I've been
blessed with twice and have two wonderful sons, but forced
childbirth.
This is a brief that I filed arguing that the right to
privacy protects the right of women and their families to make
these choices, and that Rowe v. Wade should be upheld. This was
in 1989. It made no Thirteenth Amendment argument, and I will
say categorically I do not believe the Thirteenth Amendment is
relevant at all. It was a straight Fourteenth Amendment
argument.
Senator Specter. Well, my question was whether you wrote
that, and I have listened to your answer and I do not
understand it. But I'll take a look at footnote 23. I don't
have a whole lot of time here.
You have written that the nomination of Thomas, Roberts,
and Aleto is ``a stealth attempt to radically remake
constitutional law.'' Those nominees come with the Presidential
prerogative. The nominations by President Obama, well within
his range, could be said to be at the other end of the
spectrum. Not that I disagree with him. I may be closer to his
end of the--well, I won't comment about that.
[Laughter.]
Strike that. I shouldn't venture into that field when I'm
questioning you. I shouldn't make any admissions, so to speak.
But let me come to one final question for you, Ms. Johnsen.
That is, in your notes you have suggested that Roberts and
Aleto may have violated ethical standards in their hearing,
stating in your notes for a speech, ``Remember: In Roberts and
Aleto hearings, took to new level, worse than not answering,
suggested violations.''
Do you have any evidentiary base for saying that Roberts
and Aleto were guilty of ethical violations?
Ms. Johnsen. Senator, I have a vague recollection. I think
what you're referring to is a blog post that I wrote about--I'm
very happy to take a look at it, but I am quite certain that I
did not accuse them of an ethical violation. I think what I
said was, they suggested that by giving more specificity in
their answers, they themselves might have violated an ethics
restriction. And I was pointing out----
Senator Specter. They said they may have violated an ethics
restriction?
Ms. Johnsen. That they--I probably shouldn't say too much
because I'm not sure exactly what you're referring to. But my
recollection is, I did not accuse them of violating any ethics
restriction, and I certainly do not believe they did.
Senator Specter. Would you----
Ms. Johnsen. They--excuse me.
Senator Specter. Go ahead. I don't want to interrupt you.
Ms. Johnsen. Yeah. I believe what I--what they--what was at
issue was, there was lots of back-and-forth about whether it
would be inappropriate and somehow an ethics violation for a
nominee to answer questions at a certain degree of specificity,
and I was urging more transparency and views.
I was arguing that they did have the ability, certainly not
to say how they would decide cases, but to talk about their
legal views and judicial philosophies. I was saying, if we now
say that it's some ethics violation and wrong for a nominee to
talk about their legal views on particular matters, how about
all the nominees that came before that did? I believe that was
my essential point in that blog posting.
Senator Specter. Well, let me conclude by asking you to
take a look at these notes.
Ms. Johnsen. Yes, I will.
Senator Specter. And also the Thirteenth Amendment slavery
issue.
Ms. Johnsen. Yes.
Senator Specter. And be more specific, with more time to
prepare, in your response. I think I'm within my opening and
first round. I only have a couple more questions.
But rhetorically, you show substantial evidence of your Phi
Beta Kappa key, which I do not see you wearing, or your Yale
Law Journal credentials, having been an officer of the Journal,
which are high merits. Now a Haverford grad and Harvard law
grad. Just a couple of questions.
Mr. Kris. Yes, sir.
Senator Specter. We have had long debates here. Many that
I've had with the Chairman of the--now-Chairman of the
Intelligence Committee about the range of the Foreign
Intelligence Surveillance Act and Article 2 of the Commander in
Chief power. We've gone around and around on that subject.
Are you willing to give an opinion as to whether
warrantless wire tapping, which violates the mandate of the
Foreign Intelligence Surveillance Act, is saved under
Presidential authority by his powers as Commander in Chief
under Article 2?
Mr. Kris. Well, Senator, I remember testifying before you
on the constitutionality of the TSP some time ago, and in that
testimony I think I said I agreed with you, that I was
effectively agnostic on the constitutionality of the TSP
because it didn't have----
Senator Specter. You were what? You agreed with me?
Mr. Kris. Agnostic. Yes. I think I agreed with you.
Senator Specter. You were agnostic?
Mr. Kris. And I said I couldn't--I could not evaluate the--
--
Senator Specter. Could not?
Mr. Kris. Could not evaluate the constitutionality of the
TSP without the facts. And I think it's a fact-intensive
question.
Now, as I understand FISA, especially after the FISA
Amendments Act and the new version of the exclusivity
provision, it represents a clear statement from Congress that
the President may not violate the statute, and is an assertion
of congressional power against the President's Article 2
constitutional authority.
That places any effort by the President to violate FISA in
the third category, in Justice Jackson's famous three-part
analysis from the Steel Seizure case. There, his power is at
the lowest ebb, as you know. As far as I am aware--I--I do not
claim to be a constitutional scholar. But as far as I am aware,
the Supreme Court has never upheld an assertion of Commander in
Chief power in that third category. It doesn't mean it's the
null set. It doesn't mean there's no content to that third
category. There are situations where the President may
disregard a statute.
Senator Specter. Senator Feinstein and I claim to be
constitutional scholars, by the way.
Mr. Kris. Well, I'm happy to defer to you.
Senator Specter. And when you say it's fact-intensive, I'll
accept that answer.
Mr. Kris. Very well.
Senator Specter. You may be read into it soon, so maybe
you'll be in a better place to comment, if you're confirmed of
course.
Mr. Kris. Right. I'm hopeful.
Senator Specter. And I would suggest that every effort be
made to get the Supreme Court to decide this question. The
Detroit Federal judge said it was unconstitutional, the
warrantless wire tapping. The Sixth Circuit ducked it on
standing grounds, which could just have easily have gone the
other way. Now, the Supreme Court denied cert. They really
ought to lend some clarity to what Senator Feinstein and I have
been battling with on this issue for about 4 years now.
We'll submit some other questions in writing, with
particular emphasis on the immunity issue for the telephone
companies and what you think ought to be done as that case is
pending.
Mr. Kris. Yes, sir.
Senator Specter. Thank you very much, Madam Chairwoman, for
letting me tack my time.
Senator Feinstein. Well, you're very, very welcome. And I'd
like to continue this on the second round, but Senator Feingold
has been waiting. You are up next, Senator.
Senator Feingold. I thank the Chair.
Ms. Johnsen, thank you for meeting with me this morning. I
want to congratulate you on your nomination. You are
extraordinarily well-qualified for this position and I'm very
glad about that, because you've got a big job ahead of you. The
reputation of the OLC suffered greatly during the last
administration. It put itself at the service of political
masters and failed in its most important duty, to provide, as
you have put it, an ``accurate and honest appraisal of
applicable law.''
I want to commend you for the constructive effort that you
undertook after the torture memo became public, not only to
criticize the reasoning of that particular memo, but to ask how
such a memo could have been written, and carefully consider
what needed to be done to make sure that such a devastating
mistake would not happen again.
When you set out to develop the Principles to Guide the
Office of Legal Counsel back in 2004, I don't know if you had
in the back of your mind the thought that you might someday
have the opportunity to put those principles in place. But now
you do, and I think OLC and the American people will benefit
greatly from your effort.
Several of the principles you laid out in 2004 underline
the importance of transparency, of making the opinions of the
OLC public, and of disclosing to Congress whenever the office
reaches the conclusion that a statute should not, or cannot, be
enforced, as you alluded to earlier.
Recognizing that there are certainly some situations where
secrecy is warranted, can you explain why that transparency is
so crucial?
Ms. Johnsen. Yes. Thank you, Senator. Transparency,
absolutely, is critical, and especially in the category of
opinions you've described, where the executive branch is
interpreting how, and whether, in some cases, it will comply
with Federal statutes. If, on the other hand, as has happened
on rare occasion, but important occasion, the executive branch
acts contrary to statutes in secret without notifying even
Congress, let alone the American people, that, I believe, goes
right to the heart of what makes our great constitutional
democracy work.
In this system, we as Americans are all proud of the fact
that the government is responsive to us and we--we, the people,
are--are the government through our representatives in
Congress. If Congress does not know that the executive branch
is either not enforcing a statute or is interpreting it in a
way that would be shocking to Congress, obviously Congress
can't do its job. It can't decide whether it needs to enact new
legislation, it can't do appropriate oversight of the executive
branch.
Senator Feingold, you--I mean, you know all this and have
spoken eloquently about this, and I thank you for--for that
leadership. So for that category of cases, I do think it is
imperative that there be immediately notification to Congress.
Senator Feingold. Thank you. I find it somewhat ironic that
there are commentators and critics out there who oppose your
nomination because they feel you have a political agenda and
will seek to put the imprimatur of OLC on your personal view of
the law. Those critics were awfully quiet over the last 8 years
when that's exactly what happened. It seems to me your
principles are designed to prevent that from happening. Am I
right? Can you explain how they'll do that?
Ms. Johnsen. Yes, Senator. That was the fundamental goal
behind the principles. And frankly, my work as an academic over
the last year--8 years, a central theme has been to help
develop proper standards and processes for the government, and
government lawyers in particular, to enforce the rule of law,
to ensure that individuals at the Office of Legal Counsel or
elsewhere could not promote their own personal views or pursue
particular outcomes at the expense of the rule of law.
And I would also point out that the principles reflect the
best practices of OLC. The 19 of us didn't just come up with,
you know, what's our ideal in the abstract. We looked to the
best principles that governed Republican and Democratic
administrations alike. When I was at OLC for 5 years in the
1990s, I was very pleased at the quality of opinions issued
under many prior Republican heads--Ted Olson--tremendous
reputation for living according to those principles. And so
this is not a partisan issue at all and one that I'm very
pleased the principles have received praise from Republicans
and Democrats alike.
Senator Feingold. Thank you, Ms. Johnsen. I have limited
time, but I do appreciate your answers.
Mr. Kris, congratulations to you as well. I do need to say
on the record, though, that I am concerned about the exchange
you had with Senator Specter. When it comes to Category 3 under
the Steel Seizure case, I do not accept the characterization
that the inquiry is fact-intensive, if we know the statute was
violated. That is what I believe the question was--if what the
President is doing is contrary to the statute. I don't think
the question is whether it's fact-intensive. Whether it
violates the statute, I think, maybe fact-intensive, but if the
conduct violates the statute, the catagory 3 analysis is not.
But if we leave that room there, I am concerned that this
undercuts the very core of Justice Jackson's test, which you
correctly pointed out has never been ruled upon in favor of the
executive government. So, this isn't so much about you, but
about this ongoing debate that is so critical to all these
issues. It's one of the most central issues in the future of
our constitutional history, so I simply want to put that on the
record.
We had an opportunity earlier today to discuss, in a
classified setting, specific concerns I have about how the FISA
Amendment Act has been implemented. Without discussing those
specifics in an open hearing, do you agree that there are
serious problems that need to be corrected?
Mr. Kris. Senator, I do appreciate very much the meeting we
had this morning. You raised a number of concerns that I, as an
outsider, had not appreciated. You certainly got my attention.
I have been thinking about it since we met. If it's even
possible, you increased my desire, if I were to be confirmed,
to get to the bottom of the FISA Amendments Act. I hope, if I
am confirmed, that I can take advantage of your learning and
that of others on the Committee, and the Intelligence
Committee, to see how best to make any necessary improvements.
Senator Feingold. I hope that you'll work with me to
develop modifications to the statute that would potentially
address these problems. I realize you need to----
Mr. Kris. I will----
Senator Feingold [continued]. Get all that detail first.
Mr. Kris. Senator, I will look forward to working with you,
very much.
Senator Feingold. Thank you.
We also had an opportunity to talk about important
information concerning the PATRIOT Act that I believe should be
declassified. Do you agree that this information is important
to the public debate on the reauthorization of these
authorities, and will you consider the declassification I have
proposed?
Mr. Kris. Yes, I will certainly take a look at that, if I
am fortunate enough to be confirmed. Yes.
Senator Feingold. Thank you. DNI Blair stressed to the
intelligence community the importance of checks on the
government's authority to collect and disseminate personal
information on Americans, even when it's available online. He
said, ``It is one thing for a private company to have detailed
private information. It is another for the U.S. Government,
with all its power and authority, to have the same
information.''
Do you agree with the DNI? If so, do you think we may need
new statutes and regulations to ensure that personal
information that people post online or give to private
companies does not end up being collected and stored by the
U.S. Government?
Mr. Kris. If I understand it correctly, I think I do agree
with the DNI, as a policy matter, if not a legal one, the
government having information may very well be different. So I
think it is important to think about that issue and I hope to
have an opportunity to do so, if I am confirmed, yes.
Senator Feingold. Thank you so much. I am over my time.
I thank the Chair.
Senator Feinstein. Senator Sessions, you are up next.
Senator Sessions. Thank you, Madam Chairman.
Ms. Johnsen, with regard to torture, you were asked about
that, and is that illegal. Of course, it is. Would you explain,
simply, the most basic reason that torture is illegal?
Ms. Johnsen. Most simple, is that the Congress of the
United States has said that it is--it is a crime.
Senator Sessions. Right. And it defined torture, did it
not?
Ms. Johnsen. Yes, it did.
Senator Sessions. And does it use the words that it
prohibits the infliction of severe physical or mental pain, or
something, on someone?
Ms. Johnsen. That sounds correct.
Senator Sessions. Is that basically correct?
Ms. Johnsen. I was thinking, was it severe, serious? But
that sounds----
Senator Sessions. Well, that's the reason I----
Ms. Johnsen. I'm sure you're right.
Senator Sessions. That's the reason I think that--and our
colleagues here, Democratic and Republican, voted for that----
Ms. Johnsen. Yes.
Senator Sessions [continued]. Legislation----
Ms. Johnsen. Yes.
Senator Sessions [continued]. Before I got to the Senate.
But I would just note that Attorney General Mukasey declined to
answer the question in the fashion you did because he had not
been informed on explicitly how waterboarding was carried out,
and that he had not researched the law, and he thought he
should do that before he made an opinion. I'd just share that
with you.
With regard to Mr. Goldsmith and his leaving the
Department, he raised a significant issue. This is so
important, and I know he wrestled with it. He said he--the fact
was that a mere 9 months after he'd been in office, he had
reversed and rescinded more OLC opinions than ``any of my
predecessors.''
Now, he was selected by Attorney General Ashcroft. He was
asked to review these matters, and he reversed a number of
them. He went on to say, ``Many of the men and women who were
asked to act on the edges of the law have lost faith in me.
What else might I withdraw, and when? In light of all that I
had been through and done, I did not see how I could get their
faith back, and so I quit.''
He also goes on to say that every day--he talks about the
difficulties agents have trying to protect this country in very
hostile environments. He says, ``Every day they and their
clients are exposed to a buzz-saw of contradictory commands:
Stay within the confines of the law, even if the law is
maddeningly vague, or you will be investigated and severely
punished; but also be proactive and aggressive and imaginative,
and push the law to its limit, don't be cautious, prevent other
attacks at all costs, and you will also be investigated and
punished.'' He goes on to say that he felt his actions had
contributed to a problem, and goes on.
But do you see the tension and the importance of easy
decisions made in the OLC that could have ramifications on
great men and women whose lives are at risk this very day,
trying to preserve and protect this country and the security of
Americans?
Ms. Johnsen. Yes, Senator, I certainly agree with
everything you're saying. Yes. I have no disagreement. I think
those men and women deserve/need clear legal guidance. And Jack
Oldsmith came to OLC at a very difficult time. I think one
thing that should be done, is what's being done now, taking a
hard look at these incredibly difficult, important questions
ahead of time, as President Obama has now directed.
Senator Sessions. Well, I think that's true. And I think
Mr. Yoo was basically asked something he probably shouldn't
have been asked, which was, how much power does the executive
branch have? Attorney General Mukasey wisely said, in the same
position you're sitting, that not only was it a mistake, it was
unnecessary. I think he said, ``It was not only a mistake, but
worse, it was unnecessary.'' So he made a mistake, I think, in
trying to anticipate non-fact situations and by making broad
opinions about it.
Ms. Johnsen. I agree with that.
Senator Sessions. That was withdrawn as an opinion.
With regard to the question about Justice Roberts and Alito
and Thomas and the statement Senator, I believe, Specter asked
you about, those nominees being ``a stealth attempt to
radically remake constitutional law,'' is that your--was that
your statement, and do you stand by that statement?
Ms. Johnsen. Yeah. I'm sorry, Senator, I do not recall that
precise statement.
Senator Sessions. Did you counsel and advocate the
opposition of Justices Roberts and Alito to the court?
Ms. Johnsen. I was asked some specific questions by Senate
staffers for, I think, a couple of Senators on issues of
Presidential power, to help give them guidance to inform their
questioning of those nominees.
Senator Sessions. Did you take a position or advocate that
they be rejected as ``being a stealth attempt to remake
radically constitutional law'' ?
Ms. Johnsen. I remember clearly that I spoke about concerns
I had about Justice Alito and positions he had taken. I cannot
recall doing the same with Chief Justice Roberts.
Senator Sessions. Well, I would just say that I think that
Roberts and Alito represent two of the finest exponents of a
classical interpretation of law, a classical view of the role
of a judge, I have ever seen, and it troubles me that you would
think that they wouldn't be--that they would be somehow setting
about to radically remake the Constitution.
Ms. Johnsen. Senator, if I may respond, briefly. My chief
point, and I know a few blog posts and at least one Law Review
article, was arguing that it was appropriate for both the
President and the Senate to inquire into the legal views and
judicial philosophy of judicial nominees. That was my--my
essential point. And I was concerned at the time that----
Senator Sessions. One of your----
Ms. Johnsen. Yes?
Senator Sessions. You used the word ``ideology'' and say
ideology is significant. But really, you used philosophy then.
I think that's a better word.
Ms. Johnsen. I do, too.
Senator Sessions. I think Justices Alito and Roberts have
firm classical judicial philosophies----
Ms. Johnsen. Yes.
Senator Sessions [continued]. That would really trouble me
if somebody thought they were unfit for the bench----
Ms. Johnsen. Yes.
Senator Sessions [continued]. Or somehow set about to
radically remake the Constitution. It's the activists that are
remaking the Constitution, not the classical judicial jurists.
Ms. Johnsen. Senator, I actually remember writing that we
should just banish the word ``ideology'' from our vocabularies
because it's thrown around from all sides, and talk in terms of
legal views and judicial philosophy, because ideology has
different meanings and is usually used with negative
connotations. I urge dialog about what are precisely the
standards and appropriate kinds of questions to be asked. That
was my main concern.
Senator Sessions. Well, it's such an important position
that you're seeking. You do have experience in the office, and
you have also been an activist, blogging and advocating, and
testifying, and making speeches that are, I think, as Senator
Specter suggested, on perhaps the other side politically, an
activist position.
So in this office of Office of Legal Counsel, it's an
extremely important position. Do you understand that it is your
commitment to serve the law and not to be an advocate for
progressive ideas, but to faithfully and dutifully submit
yourself to the rule of law and carry out your office in that
fashion?
Ms. Johnsen. Yes, Senator, I do. Thank you. I think that is
the most important question in thinking about this, and
something that I did while I was there for 5 years, including
as the acting head of the office. I'd respectfully ask that you
look at the letters of support of people who worked with me
while I was in that capacity, and something since I have
written and spoken about extensively, the importance of that
office promoting a neutral, principled view of the law.
Senator Sessions. Thank you.
Senator Feinstein. Thank you very much, Senator Sessions.
The order is: Senators Kaufman, Whitehouse, and Cardin.
Senator Kaufman.
Senator Kaufman. Thank you, Chairman.
Professor Johnsen, Mr. Kris, I want to thank you for taking
on this responsibility and this service. I know it's daunting,
but I think it's very rewarding. I think we're very pleased
that you're considering doing this.
Professor Johnsen, what do you think the Attorney General
Eric Holder should do to ensure--you've been there, you know--
to ensure the independence of the OLC and its own ability to
exercise a legal check on claims of executive power without a
legal basis?
Ms. Johnsen. I would say, adopt some version of the
principles that I helped draft with the former--19 former OLC
lawyers, and have a comprehensive set of principles. And I
would say, also, to have regular contact with OLC and regular
meetings, to be informed about what the office is doing in
addition to following the principles.
Senator Kaufman. Well, in that regard, what do you believe
should happen when you have a disagreement with a White House
counsel and the President's chief of staff, if they strongly
disagree with your legal conclusions? How do you think that
should be handled?
Ms. Johnsen. I think the answer to that is clear, and
traditionally and legally absolutely clear, that the--it is the
role of the Department of Justice to issue binding legal
interpretations, and that authority--that responsibility has
been delegated to the Office of Legal Counsel. So, that is not
for the counsel to the President. Many of the issues decided at
OLC do come from the counsel to the President, but it is OLC
that issues the authoritative ruling.
Senator Kaufman. To follow up on some of Senator Sessions'
questions, can you set examples from your prior service at OLC
that demonstrates your ability to provide sound legal advice
that's not outcome driven?
Ms. Johnsen. Yes. Thank you, Senator. In the--and it came
up all the time. We did follow the principles, and it wasn't
any question that we would follow what the Constitution and
relevant statutory provisions dictated. One particular example
that comes to mind is an opinion--actually, two opinions I
signed, where there was--there were some meritorious claims of
racial discrimination against black farmers, where the
Department of Agriculture, and the administration generally,
wanted to settle these--these otherwise meritorious claims.
But I signed a pair of opinions that said that they did not
have the authority to do that because the Statute of
Limitations had run, and Congress--only Congress could
authorize the expenditure of money in that kind of situation.
That had a happy ending because Congress subsequently enacted a
statute that--that allowed for--for that settlement, as one
example.
Senator Kaufman. Can you talk a little bit about
Presidential signing statements? You have written that: ``The
President should refuse to enforce a statement he believes
unconstitutional only when he is specifically situated to
protect important constitutional norms without undermining the
integrity of the lawmaking process.''
Can you give the Committee a better sense of when you think
it's appropriate for the President not to enforce the statute,
or not to enforce part of a statute?
Ms. Johnsen. Yes, Senator. I've written several things and
thought extensively about both the issue of signing statements
and non-enforcement of statutes. I come out pretty much where
the executive branch has been and the tradition has been, going
back to Thomas Jefferson. That is that I've been very critical
of some instances where I believed that Presidents have
improperly refused to comply with statutes and have issued
signing statements inappropriately, and abused signing
statements, but that there are rare circumstances where it is
appropriate--and as I said, back to Thomas Jefferson--where a
President--you know, short answer is, where a President clear--
thinks that a provision of law is clearly unconstitutional and
it actually is clearly unconstitutional and Supreme Court
precedent backs that up, if there is such precedent, or the
text of the Constitution itself, there may be rare instances
like that where the President's duty to take care that the laws
are faithfully executed means he enforces the Constitution over
the statute. In those situations he must go to Congress, let
Congress know, try to amend and fix the statute.
Ideally, this would never come up because Congress and the
President would work together beforehand during the process of
evaluating bills for constitutional defects and the problem
will be fixed before the bill lands on the President's desk.
Senator Kaufman. You talked in earlier questioning about
the power of the OLC. Can you see a situation where the OLC
would ever impose legal limits on Presidential power that a
court would not require?
Ms. Johnsen. I'm sorry, Senator. Could you say that again?
Senator Kaufman. Could you see a situation where the OLC
would ever impose legal limits on Presidential power that a
court would not require?
Ms. Johnsen. Yes. And that actually is addressed in the
Principles, too, because there are situations where a court
would find the issue to be unjusticeable, or nobody would have
standing to challenge. In those situations, OLC's obligation is
just as strong, and you might even say stronger, to inform the
President of what the law requires. The goal is to tell the
President what the rule of law requires. I think one way of
saying it is not what he can get away with, because a court
wouldn't order him to do otherwise.
Senator Kaufman. Okay. Thank you very much.
Senator Feinstein. Thank you, Senator Kaufman.
Senator Whitehouse.
Senator Whitehouse. Thank you, Madam Chair, and thank you
to both of our witnesses for embarking on their upcoming
experiences in public service. It promises to be extremely
interesting and challenging for both of you, and I appreciate
that you've been willing to put yourself into these roles.
Mr. Kris, as you will recall, we've spoken in classified
session about two matters that I consider to be of sufficiently
grave concern to merit the attention of the Attorney General,
and perhaps even the President. I want your assurance here, now
that we're on the record, that you will address yourself to
those two matters expeditiously so that they can benefit from
your legal analysis on them, if you are confirmed.
Mr. Kris. Senator, yes, you have my assurance on both
matters. Absolutely.
Senator Whitehouse. Perfect. I wish you well. You have much
work ahead of you, and you have my confidence and my support.
Mr. Kris. Thank you.
Senator Whitehouse. Ms. Johnsen, you actually probably have
the hardest job of all, based on what has become of OLC in
recent years. I'm one of its most--have been one of its most
ardent critics. I've described it as Dick Cheney's ``Little
Shop of Legal Horrors.'' And if you look back at some of the
work that has been done, as we discussed when I had the chance
to speak with you in my office, it runs the gamut from
decisions that I think are just wholly flawed and are written
at what I've also publicly described as a ``fire-the-
associate'' level of legal research and responsibility, to
otherwise legitimate opinions into which specific little, you
might call them like a climber climbs a mountain, he hammers a
little piton into the rock to hold himself up as he climbs.
They're assaulted with these little ideological pitons that
later can be looked back at to say, well, in a previous
decision we said this, so now we can do this, sort of like
building an ideological ladder into the future. And I'm sure
there are some that are wholly legitimate and have not been
assaulted with those little ideological tidbits for later use.
And I think that whole question requires a fairly thorough
review of where we've been. Some of these opinions have already
been withdrawn and thrown out already. What is your view on
what procedure would be appropriate for the office to undertake
to go back and see what needs to be made right in these
opinions?
Ms. Johnsen. Thank you, Senator. That is--that's an
important, and I think difficult, question. I do want to say
that, as I'm listening, the thing that goes through my mind is
there are many brilliant, principled career lawyers at OLC who
have written many excellent opinions in the last
administration. We talk about the very important category of
opinions about which I've expressed concern, and I know you've
been a leader in--in expressing concern.
Part of the problem is, many of these opinions haven't been
made public, so we're not sure how many we're talking about. I
haven't had access, yet, to them. But I do want to make the
point that it's a relatively small number of the dozens and
dozens of noncontroversial, routine opinions the office issues.
I have actually worked with some of the very senior career
lawyers there and have--have great confidence in them.
But looking at that very important category of opinions
that deal with----
Senator Whitehouse. And it's not that small. I mean, when I
went over to the old Executive Office building to read the
super-classified opinions that related to the warrantless wire
tapping, there was a stack----
Ms. Johnsen. Yes.
Senator Whitehouse [continued]. This high.
Ms. Johnsen. Yes.
Senator Whitehouse. And that's just one topic. And then
there are a whole other bunch that relate to Article 2
authority, and there are a whole other bunch that relate to
torture and interrogations.
Ms. Johnsen. Yes.
Senator Whitehouse. I think, you know, when we talk about a
small number, that may be relevant to the library of work that
OLC did in this period. But just as a body of work itself, it's
a pretty considerable--it's not an afternoon's read, by any
stretch of the imagination.
Ms. Johnsen. Uh-huh. Right. Right. So, yeah. Maybe I should
have said relatively small number of areas, but hugely
important. And as I've said, I haven't had the opportunity--and
I hope I will--to see--to see those classified nonpublic
opinions.
With regard to those, I do think it's critical to start
with the ones that may have ongoing application, because an OLC
opinion doesn't go out of effect in any way at the end of an
administration. It continues to inform the actions of executive
branch officers and employees, as you well know.
So, given the quantity that you're--you're describing, you
know, I think it's going to be kind of a triage kind of thing,
where you--the office will need to start with the ones that are
actually still in effect and guiding ongoing matters, and--and
then after that I would say those that are relevant to new
questions that come to OLC from the counsel to the President,
or the Attorney General, the CIA, Department of Defense, from
wherever, and so in the normal course, other opinions and the
reasoning, even if the actual bottom line is no longer relevant
to ongoing activity, some you describe the reasoning may need
to be recalibrated.
Senator Whitehouse. Let me jump in and make my point a
little bit more----
Ms. Johnsen. Yes.
Senator Whitehouse [continued]. A little bit more clearly.
There's obviously a certain amount of kind of back-and-
forth between administrations that relates to legal philosophy.
In my view, this strayed well outside the bounds of that. This
was an effort to, for want of a better word, corrupt the office
so that it would do what it was told rather than provide legal
advice that was dispassionate and honest.
And I think it's important that there be some credibility
about this review that marks this as something different,
because otherwise we'll end up with a situation in which
somebody comes back to do this again, and the frame that people
put on this, and the argument that is made in public, is, oh,
well, you know, when the Republicans were in charge they had
one way of looking at the world, one philosophy, and then the
Democrats came and they took their liberal philosophy and they
made it different, and we can kind of legitimately go back and
forth between those two theories. This isn't that, and I think
it's important that there be a benchmark of some kind.
So, I would encourage you to look to either veterans of the
office of both parties who have great loyalty and great
ability, or, you know, deans and leading scholars to
participate in this, not only to lighten the load on your
staff, which have all the ongoing work to do in addition to the
look-back, but also to provide that additional element of
credibility and of professional credence so that nobody can
come back later on and say, oh, that's just one team, and then
the other team. Because this really was different. This was
something that was out of bounds, and badly out of bounds.
Ms. Johnsen. Thank you, Senator, for those suggestions. It
reminds me, when we did meet and talk privately, we talked also
about the fact, if you can make more of these opinions public,
the leading scholars will weigh in in the articles and speeches
and such. And we've seen----
Senator Whitehouse. I'm over my time, so----
Ms. Johnsen. Oh, I'm sorry.
Senator Whitehouse. So let me stop there.
Ms. Johnsen. Yes. Yes.
Senator Whitehouse. But in a second round, perhaps, we'll
go to classification.
Senator Feinstein. In a second round, for sure. Thank you,
Senator Whitehouse.
You're up next, Senator Graham.
Senator Graham. Thank you, Senator Feinstein.
To pick up on the point about philosophy, it is obvious to
me that you and I probably have different political
philosophies, and that is Okay. It seems like you are a very
experienced lawyer, academically gifted, and elections have
consequence, and I expect the administration to pick people
more in line with their philosophy than I would have chosen for
them.
But I think what Senator Whitehouse is saying is that one
thing that we want to make sure of is that the law has some
meaning beyond politics. And it is, in theory, the last bastion
where 50-plus-one--you know, the thing I like most about the
law is that even the most unpopular among us will have their
day in court. We need to preserve that and not overly
politicize it. And I think when you look back in this past
administration--and I am sure others--there has definitely been
some of that going on.
Now, I want to look forward because I think your shop in
the Justice Department, along with the White House Counsel and
the Department of Defense, are going to have to make some
really tough decisions here. I support closing Guantanamo Bay,
not because I think it is a place where people are being
tortured; I think it is a chance to start over. And it would
probably do the country some good to start over when it comes
to detention policy, and no better way to start over than
changing the location.
But having said that, once you close Guantanamo Bay, you
have to decide where you put these prisoners and how they will
be disposed of. And we have talked in my office--Ms. Johnsen,
we have talked about sort of the framework that I have in mind,
and I would just like to ask you a few questions in line with
what we talked about privately.
Do you agree with the proposition that when Congress
passed--I guess it is the Military Commissions Act, we
designated certain organizations ``enemy combatants.'' If you
are a member of this organization, you are no longer just a
common criminal, you are basically an unlawful enemy combatant
at war with the United States.
Do you accept that proposition as being legitimate?
Ms. Johnsen. Senator, I want to be careful in my answer. I
would say generally I do, but I am reluctant to give a blanket
yes, not knowing the particular legal question.
Senator Graham. Well, do you think people who are members
of al-Qaeda are enemy combatants?
Ms. Johnsen. Yes, there is no question.
Senator Graham. OK, and that we are at war with people like
that.
Ms. Johnsen. Yes, we are. Congress made that clear.
Senator Graham. Right, Okay. That was my fault. And that is
important to me because if you view this process through
criminal law, you have got a problem. Would you agree with me
that under criminal law there is no process to detain someone
indefinitely without trial?
Ms. Johnsen. Yes, Senator.
Senator Graham. Nor should there be.
Ms. Johnsen. Right.
Senator Graham. But would you agree with the proposition
that under the law of armed conflict, if someone has been
properly designated as an enemy combatant, under the law of
armed conflict they can be held off the battlefield as long as
they present a danger?
Ms. Johnsen. Yes. The Supreme Court has so held.
Senator Graham. Okay. Now, when it comes to the disposition
of the detainees at Guantanamo Bay, I am urging the
administration to continue with the process of closing
Guantanamo Bay, but let's work our way through this problem,
believing that we are at war. And when it comes to Article III
courts to try detainees, it seems to me that you would be
shifting your theory.
Are you familiar with the military justice system at all?
Ms. Johnsen. A little bit, Senator.
Senator Graham. I would encourage you to talk to our judge
advocates.
Ms. Johnsen. Yes, absolutely.
Senator Graham. I personally have a lot of confidence in
the men and women who administer justice in our military. They
have, I think, in many ways been the conscience of the Nation
when it came to detainee policy. And my belief is that the
military justice system would be the proper venue to deal with
someone who is accused of being a war criminal. Does that
strike you as being out of the mainstream?
Ms. Johnsen. I would just say that my role, if I am to be
confirmed, would not be to make that kind of judgment, and it
is not within my expertise. But I certainly share your
admiration for the military court of justice. But it is not my
expertise.
Senator Graham. Will you have input as to what kind of
legal system we will use to deal with people at Guantanamo Bay?
Ms. Johnsen. To the extent that it involves questions about
the legality of the options, I would, and I dealing with
absolutely in the principles highlight the need to include
experts from the military in examining such questions.
Senator Graham. One of the ideas that I have is that it is
important for us to let the world know that if someone is
detained in a prison, wherever you may locate it, it is not an
arbitrary decision, and that the system I would envision is
that the military would have the first crack as to whether or
not the individual is an enemy combatant, with better due
process than we provide now; but eventually that there would be
an Article III panel of judges, an independent judiciary would
also be required to make that determination. And my belief is
that if you had an independent judiciary listening to the facts
and hearing the evidence, it would legitimize in the eyes of
the world, quite frankly, that the person is being held by a
process that is not arbitrary. Does that make sense?
Ms. Johnsen. Absolutely. The appearance and reality of
independence is essential to those kinds of----
Senator Graham. And one of the problems I have with the
past administration is that they had this theory of Executive
power, the power of the Executive, that basically their view
was that they could do everything in-house. From your point of
view, it would be OK to share power with an Article III court
when it comes to whether or not a person is an enemy combatant.
The executive branch would be willing to share power with the
judiciary to make that decision?
Ms. Johnsen. I am generally very in favor of the branches
working together and sharing power and think that generally
leads to stronger outcomes.
Senator Graham. Okay. Well, I look forward to talking with
you more about this as we try to find out the disposition path
forward when it comes to detainees that are too dangerous to be
released and there is no country that will take them and how to
try them. I wish you well in your new job.
Thank you.
Senator Feinstein. We will have a second round, but to
finish this round, Senator Durbin is next. I will recognize you
now, Senator.
Senator Durbin. Thank you very much, Madam Chairman, and
thanks to both the witnesses.
I would like to ask Ms. Johnsen: You have written about the
appropriate role of the Office of Legal Counsel, and I thought
one of the statements that you made was very insightful. You
said, ``If the President desires only a rubber stamp, the
Office of Legal Counsel will have to struggle mightily to
provide an effective check on unlawful action. In addition to
being prepared to say no, therefore, Presidential lawyers must
be prepared to resign in the extraordinary event the President
persists in acting unlawfully or demands that the OLC issue
opinions to help legitimize unlawful activity.''
You have also written that the OLC must emphasize
``accuracy over advocacy,'' and that their ``advice should
reflect all relevant legal constraints.''
There was recently an article in Newsweek Magazine relative
to the results of an OPR investigation which Senator Whitehouse
and I requested, which we have yet to see--and I hope we do
soon. But relative to that, as you know, in 2002 the head of
the Office of Legal Counsel, Jay Bybee, now a Federal judge,
issued the infamous torture memo which narrowly defined torture
as limited only to abuse that causes pain equivalent to organ
failure or death. The memo, which was written by then-OLC
Deputy John Yoo, also concluded that the President as Commander
in Chief has the right to violate the anti-torture statute.
In your opinion, in your view, did that torture memo
reflect relevant legal constraints?
Ms. Johnsen. Senator, I have written very critically of
that opinion and, in fact, made clear that the writing of the
principles was a response to the view that that opinion was not
written in the best traditions of the office and did not
reflect the first principle, which is that legal advice should
be impartial, independent, accurate, and principled. And so I
believe that the opinion did not represent those best
traditions.
Senator Durbin. In 2005, Steven Bradbury, who was then
acting head of OLC, reportedly signed two OLC legal opinions
approving abusive interrogation techniques. According to the
New York Times, then-Attorney General Alberto Gonzales approved
one of the opinions over the objections of the Deputy Attorney
General Jim Comey, who said the Justice Department would be
``ashamed'' if the memo became public.
The other opinion reportedly concluded that abusive
interrogation techniques such as waterboarding do not
constitute cruel, inhuman, or degrading treatment. This opinion
was apparently designed to circumvent the McCain torture
amendment, an amendment which passed on the floor of the Senate
with 90 votes, which I cosponsored and had wide bipartisan
support, which prohibited cruel, inhuman, and degrading
treatment.
I know you cannot comment on specific classified OLC
opinions that you have not reviewed, but you have written about
the obligation to notify Congress if the executive branch does
not fully comply with a Federal statute. Could you elaborate on
this in light of the opinion and the McCain statute, which had
been signed into law by the President?
Ms. Johnsen. Yes, Senator, you are absolutely right, I have
not seen those classified opinions, and so I want to make clear
I am not saying anything about them. But, again, I would
emphasize the need for Congress to know the way in which the
executive branch is interpreting and in some cases refusing to
fully comply with Federal statutes.
In some cases, the opinions may involved classified
material, and so it may be necessary--and I do not think there
is any disagreement about this--to do it in a non-public way or
to redact certain parts of the opinion, or to prepare some
alternative document, not provide the opinion itself but some
alternative way of explaining how it is that the executive
branch is interpreting the meaning of statutes.
Senator Durbin. I asked Mr. Bradbury at an earlier hearing,
and I quote, ``In your personal opinion, is it legally
permissible for U.S. personnel to subject a detainee to
waterboarding? '' And he refused to answer. Now, I know that
Senator Feinstein has asked you that question.
I also asked Mr. Bradbury, ``Would the torture statute be
unconstitutional if it conflicted with an order issued by the
President as Commander in Chief? '' He refused to answer that
question. He said, and I quote, ``I would not attempt to define
in the abstract the limit of a President's constitutional
powers.''
What is your view?
Ms. Johnsen. Well, I guess I do agree in the abstract with
his statement, and that is one of the principles we discussed,
that it is best not to answer very broad questions about the
constitutionality of things without having the specific facts.
And I think you get into trouble--we talked about this a little
earlier--when OLC tries to write opinions that address matters
that are not actually necessary to address and to broadly
describe the scope of the President's Commander in Chief power
to the extremes and better to focus on precisely what it is a
policymaker is contemplating.
Senator Durbin. Well, I guess I would go to the bottom-line
question now. I want to make sure I understand your answer.
Would the torture statute be unconstitutional if it conflicted
with an order issued by the President as Commander in Chief?
Ms. Johnsen. That is the exact question, I think, in the
August 2002 memo issued by OLC. They concluded that the
President had the authority to direct that the torture statute
not be complied with. And I think that is absolutely wrong and
that Congress clearly has the authority to make torture a
crime.
Senator Durbin. Okay. Mr. Kris, I do not know if you have
been asked about Guantanamo, and if you have, I do not want to
return to that issue. Has that been asked?
Mr. Kris. Senator Feinstein and I had a discussion about
it, yes.
Senator Durbin. Then I am going to yield back my time. I
will take a look at her questions and your answer.
Thank you very much, both of you, Madam Chairman.
Senator Feinstein. Thank you very much, Senator.
Senator Hatch, if he is here, has asked to go next. I do
not see him. So we will begin a second round.
Ms. Johnsen, this is only my view. I listened to an
Attorney General come before us and say that he wore two hats.
One was to staff the President, and the other was to be the
lawyer for the people. I believe most people on this Committee
believe that the Department of Justice has to be separate from
the White House, and that the Department of Justice represents
the people. And we have had some real problems in the Office of
Legal Counsel believing--at least this is my belief--that the
office went far right and really gave overdue bearance to the
Executive and what the Executive wanted to do in its legal
opinions.
I do not want this office now to go way left and do the
same thing. And in reading, you have been a real activist, a
professor, but your writings are very clear in proposing one
point of view. And you said that you realize that when you went
in the door, you gave all of that up. My question to you is:
Can you do that? You have got such a pronounced, definitive
record of stating your views very freely in all kinds of
different forums--written and verbal--and I do not want to come
back in 4 years or 5 years and see that the OLC has just gone
contra to what it was in the Bush administration.
Can you respond to that, please? Because I really need some
assurance that that is not going to be the case.
Ms. Johnsen. Yes, Senator. Thank you for that opportunity
to address this. I think that is the most important thing to
look for in the head of the Office of Legal Counsel, is
commitment to the rule of law and recognition that, you know,
my view--the principles set forth the right way to do it. And,
again, I do not mean to take credit for that. It was an attempt
to look at the best traditions and write it down so that it
would provide guidance to everybody across administrations,
throughout the Office of Legal Counsel.
I have absolutely no hesitancy in saying I pledge my full
commitment to doing exactly what you describe needs to be done.
I know I can do it because I did it for 5 years when I was
there from 1993 to 1998, and without any difficulty at all. And
I would urge and hope that you and others would take a look at
some of the letters that were written on my behalf by the top
lawyers and other officials at places like----
Senator Feinstein. All those letters will go into the
record, both for you and for Mr. Kris, along with any statement
of any member. And I have a statement here from the Chairman of
the Committee, Senator Leahy, which will also go in the record.
Ms. Johnsen. Excellent. Thank you, Senator.
But as I said in my opening, my greatest passion is for the
rule of law. The lawyers at OLC are sometimes described as
``lawyers' lawyers,'' those who get into the nitty-gritty of
the great difficult legal questions, and also incredibly boring
arcane statutory interpretation. And that is--I love it. I
mean, that is a highlight of my career, working at OLC, and
having the privilege of serving the country in that way for 5
years. So I know how it needs to be done, and I pledge to do
it.
Senator Feinstein. Okay. That is fine. Now let me ask a
second question. On April 1, 2008, the Justice Department
released a March 2003 opinion written by Mr. Yoo. That memo
asserted that the President had unlimited power to order brutal
interrogations to exact information from detainees. That memo
references, on page 8, Footnote 10, another OLC memo written by
the same person in October of 2001, and it concluded that the
Fourth Amendment had no application to domestic military
operations so that civilians had no Fourth Amendment guarantee
of reasonable search and seizure.
I have been asking for the October 2001 memo to be released
for almost 1 year now. It remains classified. Last April, I
asked former Attorney General Mukasey about it, and he said
publicly that releasing it was a priority, but to date, the
memo has not been released. This is a very troubling
proposition that the Fourth Amendment which gives the right to
reasonable protection against search and seizure does not apply
to any domestic military operation that might take place on our
soil.
I want to ask you if you will look into this opinion. I
want to find out if it is operative, and if it is, I would ask
the question that you rescind it. And will you provide the
opinion, this opinion, to Congress?
Ms. Johnsen. Senator, I remember reading that memo and that
footnote in particular, and if confirmed, I will look forward
to reading the full opinion just as soon as I can. And I pledge
to make it a priority to read that opinion and--I cannot pledge
absolutely to release it not knowing what is in it, but
certainly to get back to you very quickly with the status----
Senator Feinstein. Well, let me ask you the question. Do
you believe that the proper interpretation of law is that the
search and seizure protections of the Fourth Amendment are null
and void when it comes to a domestic military operation in the
United States?
Ms. Johnsen. That certainly sounds wrong to me, and that
was the reaction when I read the footnote. But--and I hate to--
I do not mean to equivocate, but I do feel that I would very
much like to read the full opinion and have the benefit of that
before saying anything more.
Senator Feinstein. Okay. Thank you.
Senator Whitehouse.
Senator Whitehouse. Thank you so much, Chairman.
Following up on this question of classification of these
opinions, back to the day that I went to read the warrantless
wiretapping opinions--and they were, you know, a stack this
high--everything was so classified that they took my notes
away, and I was only allowed to read my own notes over in the
secure confines of the Intelligence Committee. My notes said
things like--I ultimately had these phrases declassified. These
were phrases from the opinion.
The President is not bound by executive orders. He has the
ability to depart from them, and when he does, he does not
violate them; he just waives them.
The President has the Article II authority to define what
his own Article II authority is. The Department of Justice is
bound by the President's legal determinations.
You know, for the life of me I could not figure out how
those things needed to be classified. Those are legal
propositions that are highly debatable. I think the second one
runs afoul of Marbury v. Madison, and the third one runs--that
is the David Frost line from ``Frost/Nixon'': The President
says what the law is--which is nice if you are the President
who broke the law, but not very helpful in a country like ours.
I really think a whole new look has to be taken at how much
of this stuff needs to be classified. I believe very strongly
that the heavy classification of a lot of this legal analysis
served to protect it from scrutiny, not for national security
reasons but because it would have been embarrassing to the
people who wrote it because it was so badly done. It would not
have survived the scrutiny of review.
One example is that the opinions related to the warrantless
wiretapping program were not provided to the lawyers at NSA.
NSA is running the program. It is not like it is a secret over
there. Why NSA is running the program but its lawyers cannot
see the legal justification, it just makes no sense from a
national security perspective. It makes a world of sense if the
national security lawyers are going to take a look at this and
say, ``What, are you guys kidding? ''
So I strongly support the comments that have been made by
my colleagues that we need to review this question of
classification. It lends itself to enormous abuse, and I think
it has, in fact, been associated with that kind of abuse in
recent years.
The OPR report is coming up at some point. Senator Durbin,
who was here a moment ago, and I have asked from the very
beginning that we be provided a copy of the report when it was
finished. Marshall Jarrett said that he would provide it to us.
We have renewed that request. I gather the report--from public
media attention to this, the report has been put through some
kind of a process at the Department of Justice where the
Attorney General did not want it released and he wanted the
subjects of it to have a chance to comment on it, maybe even
write a chapter of their own. It strikes me as a novelty that
the subject of an OPR investigation would get an opportunity to
become a coauthor of it, but we will see exactly how that all
turns out.
My question for you is: Can you see--well, what I would
like you to do is to take no step of any kind that would
interfere with the release of that OPR report, notwithstanding
that it talks about, assuming you are confirmed, your agency.
Do you have any intentions to take any steps to inhibit or
interfere with or try to prevent or stop the release of that
OPR report when it is ultimately ready for publicity--or
conclusion, I guess, would be----
Ms. Johnsen. Senator, all I know is what was in the article
you are describing, so I want to make clear I have no personal
knowledge. And I do not think it obviously would be appropriate
for me to try to speculate about what is in it where I have no
information and it is pending before, according to the press
report, the Attorney General. But I absolutely have no
intention to interfere with the release of that report. That
never crossed my mind.
Senator Whitehouse. Very good. I appreciate that. My final
question has to do with something that we may find is covered
by that report. The problems with OLC are partly problems of a
failure of scholarship and integrity, in my view, but I think
they are also partly a problem of firewall failure. There is at
least some evidence that the Office of the Vice President, and
perhaps other offices in the White House, had significant input
into some of these decisions and, indeed, may have directed
them.
If this question is not addressed in the OPR report, or
even if it is addressed but not to your satisfaction, will you
take a look not only at what went wrong in terms of why this
legal opinion is defective, but why it went wrong, and work
with this Committee to recommend safeguards that might prevent
that from happening again? This Committee is familiar, as the
Chairman so well knows, with the firewall, the general firewall
between the Department of Justice and the White House that
first Attorney General Ashcroft and then Attorney General
Gonzales knocked down, so that people like Attorney Addington
in Dick Cheney's office and Karl Rove in the White House had
access to prosecutors and career staff from the Department of
Justice to talk about ongoing cases and investigations. And I
have many disagreements with Attorney General Mukasey, but to
his credit, he put that firewall back up. He put it back, I
think, better than ever, and he is entitled, I think, to much
credit for that.
There may be something like that that is necessary on OLC,
and I ask your agreement to both look at that question and work
with us in finding an appropriate response, noting that the
firewall actually was first created in a letter between the
Department and this Committee, in fact, to then-Chairman Hatch.
Ms. Johnsen. Yes, you absolutely have my commitment. I
think looking at possible failures in process is critical, and
I have been keenly interested in that over the last several
years, and I think working together with this Committee is also
critical
Senator Feinstein. Thank you very much.
Senator Whitehouse. Thank you, Chairman.
Senator Feinstein. I believe this is going to conclude our
hearing. I would like to ask members to get their written
questions in as soon as possible. The record generally stays
open for a week. The reason for asking this is that Mr. Kris'
nomination is on a sequential referral, and so it will go to
the Intelligence Committee next, and we obviously want to
process it and get it done as quickly as possible, so
concluding it here is really important.
I want to thank both of you for being here. I want to thank
you for your offer of public service. It is a most interesting
arena, and these are two key and critical positions, so thank
you very much. And there are no further questions, so I am
going to adjourn the Committee.
Ms. Johnsen. Thank you.
Mr. Kris. Thank you.
Senator Feinstein. Thank you.
[Whereupon, at 4:20 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record.]
EXECUTIVE NOMINATIONS
----------
TUESDAY, MARCH 10, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, Pursuant to notice, at 2:32 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Herb Kohl,
presiding.
Present: Senators Kohl, Feingold, Schumer, Cardin,
Klobuchar, Kaufman, Specter, and Coburn.
OPENING STATEMENT OF HON. HERB KOHL, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Kohl. Good afternoon to you all. We meet today
regarding the nominations of three individuals to become
Assistant Attorneys General to head vital components of the
Justice Department: Lanny Breuer to head the Criminal Division;
Christine Varney to head the Antitrust Division, as well as
Tony West to head the Civil Division. We congratulate all three
of you on your impressive credentials and today's nomination.
Mr. Breuer, the Criminal Division plays a critical role in
prosecuting a wide variety of crimes from public corruption to
gang violence, to child exploitation. Of particular note, if
you are confirmed, you will work with the FBI and U.S.
Attorneys around the country to prosecute crimes in the wake of
our financial crisis, such as corporate, mortgage, and
investment fraud, and white-collar crime.
Mr. West, the Civil Division has a critical function to
represent and defend the United States, its agencies and
departments, and Cabinet members in thousands of cases per
year. Notably, we also rely on the Division to root out waste,
fraud, and abuse in government contracting as well as to
enforce consumer protection programs of the Food and Drug
Administration, the Federal Trade Commission, and the Consumer
Product Safety Commission.
As Chairman of the Antitrust Subcommittee myself, Christine
Varney's nomination to head the Antitrust Division is of
particular interest to me. Ms. Varney, your nomination comes at
a particularly crucial time for antitrust enforcement. As our
economy is buffeted by a severe recession, we depend on
vigorous competition to spur economic growth. Only aggressive
enforcement of our Nation's antitrust laws will ensure that
competition flourishes and that consumers obtain the highest-
quality products at the lowest possible prices.
Unfortunately, the record of the Antitrust Division during
the previous administration was, in my opinion, deficient in
many respects. Large mergers among direct competitors in highly
concentrated industries affecting millions of consumers met no
resistance from the Antitrust Division despite the reported
objections of career staff. We also saw sharp declines of
antitrust enforcement with respect to other business practices,
threatening competition. The Antitrust Division even issued a
report on monopolistic conduct that would dramatically close
the door on antitrust enforcement against dominant firms that
act to suppress competition, a position that drew the
opposition of the Federal Trade Commission.
The Justice Department filed several briefs before the
Supreme Court advancing a very restrictive view of antitrust
law. At the Supreme Court, the Department went so far as to
oppose the FTC's efforts to sue brand-name drug manufacturers
who pay large sums of money to their generic competitors to
keep the competition off the market. This sorry record of
passivity and, at times, even hostility toward antitrust
enforcement must now be reversed.
I thank all nominees who are here today for their
dedication to public service and look forward to their
testimony.
I now turn to introductions. We are going to listen to Jane
Harman, who will introduce Christine Varney.
PRESENTATION OF CHRISTINE A. VARNEY, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, ANTITRUST DIVISION, U.S. DEPARTMENT OF
JUSTICE, BY HON. JANE HARMAN, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF CALIFORNIA
Representative Harman. Thank you, Mr. Chairman. It is a
pleasure to be back in this Committee hearing room. A long time
ago, I spent hundreds of hours sitting in the back benches as
Chief Counsel and Staff Director of what was then called the
Judiciary Subcommittee on Constitutional Rights, working for
former Senator John Tunney. All of you staffers have great
jobs, and it is good to see this Committee hard at work.
Mr. Chairman, President Obama chose wisely when he
nominated Christine Varney to be Assistant Attorney General of
the Antitrust Division of the Department of Justice. She is my
dear friend, a colleague for a quarter century, and a person
whose intellect, loyalty, and judgment are exceptional. I am
honored to introduce her to you today.
As the letters you have received in support of her
nomination confirm, Christine is held in high esteem by her
colleagues and established her antitrust credentials as a
Federal Trade Commissioner and a partner at Hogan & Hartson,
where she has headed its Internet practice since 1997.
Christine has also dedicated a good portion of her legal
career to public service, first at the FTC from 1994 to 1997,
and as Cabinet Secretary in the Clinton administration, where
she was a leading voice on information technology and
information privacy policy.
Christine and I practiced law together in the 1980s. I was
the mentor, though she did not need much mentoring. She insists
that she followed my early career, holding many of the jobs I
did, like her stint in the White House, but she did it all much
faster.
Our families are close. Christine and Tom's kids used our
hand-me-down baby furniture. They, of course--the kids, that
is--have grown into responsible young men. The younger son,
Mickey, excelled as an intern in my congressional office and is
now a freshman at USC--you guessed it--in Los Angeles.
Christine is superbly qualified to be the next Assistant
Attorney General of the Antitrust Division. She is never
ideological or doctrinaire and, if confirmed, I am confident
she will put politics and personal views aside and examine the
facts and the law on matters that come before her. She will be
well prepared from day one in a job that giants, like Phillip
Areeda, a favorite Harvard law professor of mine, held before
her. As you noted, Mr. Chairman, antitrust enforcement is of
critical importance in these tough economic times.
In conclusion, Christine will be an asset to the Department
of Justice, the new administration, this Committee, and to our
country. I look forward to the Committee reporting her
nomination favorably and urge a confirmation vote before the
full Senate without delay. You will be proud of her, as I am.
Thank you.
Senator Kohl. Thank you very much, Ms. Harman.
I would like to introduce Tony West, who is nominated to be
Assistant Attorney General for the Civil Division. Mr. West was
born in San Francisco, California, and grew up in San Jose. He
earned his bachelor's degree from Harvard College and then went
on to pursue a law degree at Stanford. Currently, Mr. West is a
partner in the San Francisco office of the law firm of Morrison
& Foerster, where he represents individuals and companies in
civil and criminal matters.
Prior to joining that firm, he worked in public service for
many years as a Special Assistant Attorney General in the
California Department and Assistant U.S. Attorney for the
Northern District of California, and as a Special Assistant to
Deputy Attorneys General Philip Heymann and Jamie Gorelick.
Before entering public service, Mr. West was an associate at
the firm Bingham, McCutchen in California.
I would like to ask all of you nominees to come up and
raise your right hand as I administer the oath of office--the
oath before you testify. You are not in office yet.
[Laughter.]
We will see after this hearing is over.
Do you affirm that the testimony you are about to give will
be the truth, the whole truth, and nothing but the truth, so
help you God?
Mr. Breuer. I do.
Ms. Varney. I do.
Mr. West. I do.
Senator Kohl. Thank you. Be seated, please.
Senator Schumer is running a bit late. He wants to
introduce Mr. Breuer himself, but we will do that when he
comes.
At this time, Mr. Breuer, we would like to ask you to
introduce your family, if you so wish, and make any public
comments before we get to your questions.
Mr. Breuer. Thank you, Mr. Chairman, very much.
Mr. Chairman, let me take a moment and introduce my family.
Behind me is my wife, Nancy, the love of my life and my life's
partner; and my two handsome sons, Andrew over here, and behind
him, Sam Breuer. They are just wonderful and bring us unbounded
joy.
Senator Kohl. That is great, and before you start with your
comments, I would like to ask Senator Schumer if he would like
to make an introduction to us here today.
Senator Schumer.
PRESENTATION OF LANNY A. BREUER, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT OF
JUSTICE, BY HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Well, thank you, Mr. Chairman. I apologize
to you and Senator Klobuchar and to the panel and audience that
I am a little late here. And I want to say how pleased I am to
introduce to the Committee Lanny Breuer, the President's
nominee to be Assistant AG of the Criminal Division. And, Mr.
Breuer, I congratulate you on your nomination and welcome the
love of your life and the rest of your family as well. Very
touching to hear you say that. Very nice.
Anyway, Senator Kohl will give you a chance to introduce--
well, he did give you a chance to introduce the whole family.
But I want to mention Lilo, who traveled here from Elmhurst,
Queens, a neighborhood I very much love. I ride my bicycle
through it on Saturdays sometimes. Lilo came to this country
from Germany in 1939, Mr. Chairman. She came alone as a
teenager, having lost her parents in the Nazi death camps.
Seventy years ago, she was a frightened teenager in a new land,
orphaned by a lawless and unjust government. Today she looks on
as her son is considered by a U.S. Senate Committee for what is
one of the most important jobs at the Department of Justice.
What a quintessentially and great American story.
Mr. Chairman, Lanny Breuer has proven over a lifetime and a
career that he has what it takes to serve honorably and
effectively as Attorney General. He is a product of New York
City Public Schools, P.S. 13, Newtown High School. Mr. Breuer
also received his college and law degrees from Columbia. After
law school, he served as assistant district attorney under the
legendary Bob Morgenthau, who just announced his retirement.
There he distinguished himself prosecuting cases involving
murder, armed robbery, white-collar crime, and other offenses.
And Mr. Morgenthau recently wrote to our Committee about his
former protege's nomination. Here is what he wrote:
``Mr. Breuer is an outstanding choice for this position,
will be a conscientious, highly intelligent, and principled
Assistant Attorney General for the Criminal Division.''
Mr. Morgenthau, as everyone here knows, is an incomparable
legal legend who knows a thing or two about intelligence and
principle.
So, then, what did Mr. Breuer do with all the street smarts
he picked up in Queens? The scholarship he got at Columbia, the
legal craft he honed at the Manhattan D.A.'s office, he brought
it here to Washington, which I suppose can always use help from
a smart New Yorker--or usually, anyway.
In Washington, Mr. Breuer again distinguished himself in
case after case as a lawyer at the prestigious Covington &
Burling. He picked up countless accolades along the way, and he
has always maintained through this his commitment to public
service. He was vice chair of his firm's Public Service
Committee, and he personally represented the poor. He has also
had every type of client, from the President of the United
States, to corporate boards, to the good people of New York
City.
But whether he is representing the most powerful man in the
world--Bill Clinton, at the time--or the most powerful arm in
the world--Roger Clemens, at the time--or the least powerful
and indigent defendant, Mr. Breuer has always distinguished
himself with hard work, diligence and integrity. Those are the
qualities we need in an Assistant Attorney General, and my
staff has written more. They have waxed poetic here, but I am
going to ask unanimous consent that the rest of the statement
be put in the record, because I know time is important to you,
Mr. Chairman.
Senator Kohl. Thank you, and without objection, it will be
done, Senator Schumer.
Mr. Breuer, let us see if you can live up to that
introduction.
[Laughter.]
STATEMENT OF LANNY A. BREUER, NOMINEE TO BE ASSISTANT ATTORNEY
GENERAL, CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. Breuer. Well, Mr. Chairman, I think now my mother
thinks that Senator Schumer is her favorite person in this
Senate room.
Senator Schumer. Because she does not know the other 99, I
think is the reason.
Mr. Breuer. I want to begin by thanking Senator Schumer. I
am deeply honored. Senator Schumer has given a lifetime as a
remarkable public servant and Senator for the people of New
York and for the people of the United States, and his words are
very meaningful to me.
Mr. Chairman and members of this Committee, I am honored to
appear before you today as President Obama's nominee to be the
Assistant Attorney General for the Criminal Division.
I would like first to express my appreciation to the
Committee's members and their staffs for considering my
nomination. I am grateful for the courtesy that the Committee
has afforded me during the nomination process, and, if
confirmed, I will look forward to working with you on the many
important criminal law enforcement issues facing our country.
I have, of course, introduced part of my family. I just
want to also acknowledge my brother Richard; my in-laws Carol
Robinson and Irwin Robinson; and my many friends who have come
here today who have been with me, and their support has been
unwavering throughout my life.
Mr. Chairman, my father, Robert, is no longer living, but
he would have been so proud if he had made it to this day.
As Senator Schumer said, my parents have a quintessential
American story. My mother, as the Senator said, did lose her
parents in the Holocaust, came to this country, like my father,
with nothing. But that did not stop them. They worked hard and
forged a new life for themselves and for our family. And along
the way, my parents, having witnessed the devastation of the
Holocaust, instilled in me a distinctly American respect for
fairness, the rule of law, and the pursuit of justice.
If I am confirmed to this important post, I will pursue
wrongdoing vigorously, just as I did when I was a prosecutor in
the Manhattan D.A.'s office, whether it is financial crime,
public corruption, child exploitation, drug offenses, gang
violence, or other crimes, I will steadfastly enforce our
criminal laws. And because protecting our national security and
fighting terrorism remain paramount, if confirmed, I also will
work closely with the Department's leadership, the National
Security Division, and the U.S. Attorneys' Offices around the
country to ensure an effective strategy for combating
terrorism.
As the head of the Criminal Division, it would be my true
privilege to serve under Attorney General Eric Holder, for whom
I have the utmost respect and admiration. And it would be an
honor for me to serve alongside the career professionals at the
Department, whose dedication and talent are vital to its
mission. I also believe it is essential for the Criminal
Division to have close and productive relationships with
Federal law enforcement and regulatory agencies, as well as to
partner with State and local law enforcement officials. All of
these dedicated men and women help to keep our communities
safe, and they are critical to the work of the Department.
In closing, let me assure this Committee and the American
people that, if confirmed, I will work tirelessly to execute my
duties with determination and resolve, ever mindful of the
government's great power, but firm in my belief that those who
violate our criminal laws--whether in the boardroom or the back
alley--must be held to account.
Thank you very much, and I look forward to the Committee's
questions.
[The prepared statement of Mr. Breuer appears as a
submission for the record.]
[The questionnaire of Mr. Breuer follows.]
Senator Kohl. Thank you, Mr. Breuer.
We now turn to Christine Varney.
STATEMENT OF CHRISTINE A. VARNEY, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, ANTITRUST DIVISION, U.S. DEPARTMENT OF
JUSTICE
Ms. Varney. Thank you, Mr. Chairman and members of the
Committee. I am deeply honored to be here today. As someone who
has spent more than a decade working on antitrust matters and a
lifetime in public service, I cannot begin to express my
gratitude to the President for nominating me and this Committee
for considering me to be the Assistant Attorney General for
Antitrust.
If am fortunate enough to be confirmed, I look forward to
working with all members and staff of this Committee in
enforcing our antitrust laws and renewing our Nation's standing
as the international leader in antitrust.
I am pleased that some of my family is here today and would
like to take a moment to introduce them. First, the love of my
life, my husband, Tom Graham, to whom I owe everything. As he
is the one who spent hours on the financial disclosure forms, I
can truly say I would not be here if it were not for him. Thank
you.
[Laughter.]
We also have two handsome sons, but they are in college and
could not get the day off, so they are watching on the web cam,
I hope.
My other family members here include my father, Jack
Varney, who actually served as an attorney in the Antitrust
Division 50 years ago. I know he could not be prouder that you
are considering my nomination. My sister Jackie and her
husband, John, are here, along with my niece Molly. My other
five siblings are here in spirit, including my brother, Brian,
who is currently serving our country in Iraq.
Strong antitrust enforcement and respect for our
competition laws underpin our free enterprise system. There are
three main areas that, if confirmed, will be my focus.
First, we must rebalance legal and economic theories in
antitrust analysis and vigorously enforce the law.
Second, we need renewed collaboration between the Antitrust
Division and the Federal Trade Commission, whose policies and
processes have unfortunately diverged too frequently in recent
years. Policy and jurisdictional squabbles between the agencies
are simply unacceptable. My friend and colleague, the Chairman
of the Federal Trade Commission, Jon Leibowitz, is here, and I
know he shares in my commitment to end that.
Third, we must continue our cooperation with worldwide
antitrust authorities, discussing our differences respectfully,
and engaging with emerging antitrust regimes.
In these tough economic times, more than ever, it is
important to remember that clear and consistent antitrust
enforcement--protecting competition and thus consumers while
being conscious of the need for economic stability--is
essential to a growing and healthy free market, both at home
and abroad.
Working with the committed and talented career staff at the
Division, I am sure these goals can be achieved. I believe that
competition has allowed the American spirit to soar and made
this country great. I firmly believe that antitrust is a
cornerstone of our economic prosperity, and I am committed to
recruiting the best, brightest, and most experienced antitrust
minds in the country to work at the Department of Justice
alongside the outstanding staff already there.
I sincerely appreciate that this Committee, along with the
Antitrust Subcommittee led by Senators Kohl and Hatch, has been
a consistent supporter of the Antitrust Division. I look
forward to working with you in enforcing our antitrust laws and
renewing our country's international antitrust leadership.
Thank you for the opportunity to be here today, and I look
forward to your questions.
[The prepared statement of Ms. Varney appears as a
submission for the record.]
[The questionnaire of Ms. Varney follows.]
Senator Kohl. Thank you very much, Ms. Varney.
We now turn to Mr. Tony West. Go right ahead, sir.
STATEMENT OF TONY WEST, NOMINEE TO BE ASSISTANT ATTORNEY
GENERAL, CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. West. Thank you, Mr. Chairman and members of the
Committee. I am honored to appear before you as the nominee to
serve as Assistant Attorney General for the Civil Division of
the United States Department of Justice. I am grateful to the
President and to the Attorney General for giving me the
opportunity to return to the Department of Justice where I
spent nearly half of my legal career.
If I may, Mr. Chairman, I would like to introduce members
of my family. Without them and the grace of God, I would not be
here today.
First, my law school classmate, my best friend, and, yes,
the love of my life, my wife, Maya Harris West. An
extraordinary woman of accomplishment in the law and policy,
Maya has been as much my teacher as she has been my partner,
and every day she is in my life is a blessing.
I am so proud of our daughter, Meena, who is seated right
behind me, who will enroll at Harvard Law School this fall.
I also want to thank my parents, Peggy and Franklin, whose
examples of strength, compassion, wisdom, and integrity I try
to follow every day in my own life.
My sister-in-law, Kamala, is here with us, whose
unconditional support enriches my life every day. And also my
Aunt Portia and Uncle Stan are here to give their love and
support.
I want to acknowledge three people who could not be here
today: My two younger sisters, Pamela and Patricia, whose love
keeps me grounded every day, as only siblings can; and my
mother-in-law, Dr. Shyamala Harris, who passed away just last
month after a courageous battle with cancer. Her spirit fills
my heart today.
Mr. Chairman, I revere the institution that is the
Department of Justice. It was there that I learned to be a
lawyer and where the most enduring and formative experiences of
my professional career took place.
I began my career in public service as a special assistant
in the Deputy Attorney General's Office. Later, I served as an
Assistant United States Attorney for several years, where I was
honored to work alongside men and women who put their lives on
the line every day as law enforcement agents. While at the
California Attorney General's office, I had the good fortune to
work with my Federal counterparts on issues of civil rights,
antitrust enforcement, and Internet crime.
The lessons that I learned at the Department of Justice I
carried with me into private practice, where my advocacy has
encompassed all aspects of civil litigation and included a
diverse array of individual and corporate clients.
All of this has given me a deep appreciation for the
Department and its singular mission to pursue justice on behalf
of the American people. It has also given me a profound respect
for the talented professionals like those in the Civil Division
who do the hard work of ensuring justice every day. Their task
is without fanfare oftentimes, yet their commitment to
upholding the integrity of the Nation's laws is unwavering.
Should I be confirmed, I will do all within my power to live up
to that high standard.
I will work to, first, maintain the safety and security of
the American people through the Civil Division's work involving
national security; second, protect the taxpayers' dollars
through the Civil Division's anti-fraud and False Claims Act
enforcement efforts; and, third, ensure a Civil Division
characterized by professionalism, independence, and
nonpartisanship.
Mr. Chairman, if confirmed, I also look forward to working
with you and your colleagues in connection with your oversight
responsibilities on matters that fall within the jurisdiction
of the Civil Division.
I thank you again for considering my nomination, and I am
pleased to answer any questions you may have.
[The prepared statement of Mr. West appears as a submission
for the record.]
[The questionnaire of Mr. West follows.]
Senator Kohl. Thank you, Mr. West.
I would also ask that statements of Senators Boxer and
Feinstein in support of your candidacy be entered into the
record.
Mr. West. Thank you, Mr. Chairman.
Senator Kohl. Now we will start with our questions. I would
like to address Ms. Varney.
As I said in my opening statement, I was quite disappointed
with the sharp cutback of antitrust enforcement at the Justice
Department during the past 8 years. Many mergers among direct
competitors in highly concentrated industries passed review
without any modifications, often over the reported objections
of career staff. And many anticompetitive practices by dominant
firms went unchallenged.
While he was running for President, President Obama stated
that the Bush administration had ``the weakest record of
antitrust enforcement of any administration in the last half
century.'' The serious decline in antitrust enforcement has
been very disturbing to many of us. When the Justice Department
is absent from the antitrust playing field, then millions of
consumers suffer.
Ms. Varney, what is your assessment of the antitrust record
of the Justice Department during these past 8 years?
Ms. Varney. Thank you, Senator. Let me start by saying I,
too, believe that the career staff at the Department of Justice
is absolutely outstanding. And while each particular merger
must turn on an analysis of its own facts, I was not privy to
the in-depth investigations that would have been carried out
in, for example, the Whirlpool-Maytag merger or the XM-Sirius
merger. But clearly, from the outside, those looked like
mergers in horizontal markets that one wonders why they were
not challenged.
I can assure you that if I am confirmed to the Department
of Justice Antitrust Division, the law will be vigorously
enforced. Horizontal mergers will be thoroughly examined, and
where they lead to impermissible consolidation and
concentration, they will be blocked.
Senator Kohl. Ms. Varney, one of the very few industries to
enjoy an exemption from antitrust law is the freight railroad
industry. Because of this exemption, rail shippers have been
victimized by the conduct of dominant railroads and have no
antitrust remedies. Higher rail shipping costs are passed along
to consumers, resulting in higher electricity bills, higher
food prices, as well as higher prices for manufactured goods.
I have introduced a bill that will abolish this absolute
antitrust exemption for railroads, and I am very pleased to say
that our Committee just last week approved the bill by a 14-0
vote.
Do you agree that this antitrust exemption should be
repealed so that the railroads are subject to the same
antitrust laws as virtually every other industry in the
economy?
Ms. Varney. Senator, as you know, antitrust generally
disfavors blanket exemptions, and when you look back
historically, certainly some exemptions were created for highly
regulated industries. As those industries have become
deregulated over the years, it clearly makes sense to examine
the basis for their immunity. I think that your Committee
drafted a terrific bill, and I understand that it was reported
out 14-0, and I look forward to working with you and the
Senate, if the bill is enacted, to take the next appropriate
steps.
Senator Kohl. I am not sure if I heard an answer to my
question.
Ms. Varney. Yes, Senator, I support your bill.
[Laughter.]
Senator Kohl. In 2007, we asked the Justice Department for
a letter in support of this bill. We never received such a
letter. Can we hope that you might be able to secure such a
letter of support?
Ms. Varney. I will work closely with my colleagues at the
Department and with the Attorney General in an attempt to
provide you that support.
Senator Kohl. Thank you, so much.
Resale price maintenance. Ms. Varney, for nearly a century,
it was a basic rule of antitrust law that a manufacturer could
not set a minimum price for a retailer to sell a product. This
rule allowed discounting to flourish and greatly enhance
competition for dozens of consumer products, everything from
electronics to clothes.
However, in 2007, in a 5-4 decision the Supreme Court in
the Legion case overturned this rule and held that vertical
price fixing was no longer banned in every case.
Ms. Varney. That is right.
Senator Kohl. I believe that this decision is very
dangerous to consumers' ability to purchase products at
discount prices and is harmful to retail competition. I have
introduced legislation to overturn the Legion case and restore
the ban on vertical price fixing.
Do you agree on the principle that manufacturers' setting
of retail prices should be banned? Can we expect your Justice
Department to support our legislation in the event that you are
confirmed?
Ms. Varney. Senator, I, too, was quite surprised by the
Supreme Court decision in Legion. As you mentioned, it was a 5-
4 decision. And while the Court held that the resale price
maintenance was no longer per se illegal, it certainly left the
Division a lot of room to continue to prosecute resale price
maintenance where it results in anticompetitive consequence.
And I intend to continue that prosecution. I will work closely
with the Department, again, in determining what we can do to
help your legislation. But even before your legislation makes
its way into law, I think there still is a fair amount of room
that we do need to aggressively prosecute anticompetitive
behavior.
Senator Kohl. Thank you.
Ms. Varney, the severe economic recession we are currently
experiencing has put substantial pressures on many industries
to consolidate. This is especially true in the banking sector
where numerous mergers and acquisitions have occurred.
Transactions oftentimes have been at least partially funded by
the government money under the TARP program.
Last month, I wrote to Attorney General Holder and Treasury
Secretary Geithner urging that proper heed be paid to antitrust
principles and the effects on competition as the government
considers consolidation in banking as well as other sectors. In
a time of such economic difficulty, vigorous enforcement of
antitrust is more essential than ever. Antitrust enforcement is
vital to ensuring a vigorously competitive economy and to
ensuring that consumers gain the benefits of low prices. There
needs to be an advocate for antitrust policy in administration
discussions regarding economic restructuring, and the best
person for this role is you as the Assistant Attorney General
for Antitrust.
What is your view of this issue, Ms. Varney? What will be
your approach to mergers and acquisitions in the banking or
other troubled industries using government-funded bailout
dollars? And what will you do to assure that antitrust has a
``place at the table'' in this administration regarding
economic restructuring?
Ms. Varney. Thank you, Senator. I think that the
consolidation that you have talked about in the financial
institutions is incredibly important, extremely timely. As you
know, and as you and I have discussed, it is not clear to me
that the standards that were established under the Philadelphia
Bank case are terribly relevant when we are looking at
incredibly large institutions and their potential merger. So I
think it is time to take a fresh look at what standards we use
to measure consolidation and concentration in the financial
markets.
In order to do that, I will hope to have a seat at the
table at the National Economic Council and other forums inside
our government where these policies are considered so that the
voice of competition can be clearly heard as we look at
economic stabilization.
You know, Senator, I often wonder if antitrust has failed
if we have allowed institutions to be created that are too big
to fail.
Senator Kohl. Okay. That is a very good answer. I thank you
so much.
Let me turn now to Senator Klobuchar--or Senator Coburn? I
think you were here first. Go ahead.
Senator Klobuchar. Well, thank you very much. I want to
congratulate all three of you and your families. My thanks
particularly goes out to your husband, Ms. Varney, Mr. Graham,
for having to do those economic disclosure forms. My husband
does the same thing. I would suggest one trick. What he does is
he piles them up in the living room so I almost fall over them
to show how long it takes to do them, and he usually keeps them
out for about 2 weeks. You might want to consider that in the
future.
[Laughter.]
I wanted to ask you some questions, Mr. Breuer, about the
Criminal Division of the Justice Department. As you know, I was
a prosecutor for 8 years and worked with a gem of an office in
the U.S. Attorney's Office in Minnesota, and then sadly saw
what happened when someone was put in charge who really did not
have the skills to run it. Luckily, when Attorney General
Mukasey came in, he put in someone else--Frank Magill--who has
kind of at least gotten the office back on track. But it was
really a disturbing thing that happened in our State.
And I have heard many times about the issues with morale in
the Department because of the time during which Attorney
General Gonzales served. Could you talk about what you are
going to do to fix that?
Mr. Breuer. Absolutely, Senator. Senator, as the President
has said, as the Attorney General has said, politics can play
absolutely no role in the choice of our Assistant U.S.
Attorneys or those in the Criminal Division. And what we are
going to ensure, if I am fortunate enough to be confirmed, is
that the career people in the U.S. Attorneys' Offices and in
the Department of Justice feel empowered, they will pursue
cases purely based on the facts, and politics simply will not
play a role.
To the degree that morale is down, I think that the
Attorney General, I, and others will try to meet as closely as
we can with U.S. Attorneys and Assistant U.S. Attorneys and
with the staff at Main Justice, and we will ensure that we
empower the career people and they understand that the only
thing we are interested in is pursuing our criminal laws and
letting the facts lead us where they go.
Senator Klobuchar. And, Mr. Breuer, do you see with these
difficult economic times we have seen some huge criminal white-
collar cases coming up, from the Madoff case to a number of
others across the country, do you see an increase in white-
collar crime? That would be my first question. And then my
second question will be: If that is happening of that
magnitude, how are you going to balance the demands on some of
the street crime demands, the gun cases that the U.S.
Attorneys' Offices have handled?
Mr. Breuer. Well, Senator, you, of course, raise a very,
very important issue. I do think it must be a priority that we
pursue financial crimes, and those who have been involved in
criminal conduct and have taken advantage of the system and, in
part, have led to the plight we have now must understand that
they are going to be held accountable. And so financial crimes
is absolutely going to be a priority of the Criminal Division
and the U.S. Attorneys' Offices.
But, similarly, Senator, we are going to have to go after
violent crime and street crime. We are going to have to do that
as a strategic partner and leader with local and State law
enforcement, district attorneys, like the one you yourself led.
And we may come back at times if we think we do not have enough
resources, Senator, and I am hopeful we can have a very
meaningful conversation with this Committee, with you and all
of your staffs. But it cannot be a zero sum game, Senator. We
are going to have to go after both, and we are going to have to
go after both aggressively.
Senator Klobuchar. And one of my biggest concerns is that I
just--we had a hearing--Senator Kohl mentioned we had a hearing
about the oversight of TARP funds and other things and the work
that needs to be done. And I just get concerned with shrinking
local resources--and we helped some with the economic recovery
bill with the Byrne grants--but with the shrinking local
resources that things are going to be shoved out. And I lived
through that somewhat after 9/11 when the U.S. Attorneys were
understandably focused on terrorism, and many of the white-
collar cases came to the local attorneys' offices.
One of the things that I most remember is the difficulty on
the local level of handling, say, complex computer cases. We
were always promised some kind of regional computer centers
where our cops would be able to learn how, when they got to a
scene, what to do with these cases, and it never really came
through.
So I hope you look at that, if you are going to be
expecting some of the local prosecutors' offices to handle
these cases, that they be given or be allowed to use some of
the tools that the Justice Department has.
Mr. Breuer. Absolutely, Senator. I think the programs you
are referring to, whether it is Byrne, JAG, or the COPS
program, are essential. But, for instance, the Computer Crimes
Section in the Criminal Division is both a litigation section
and must be a section that is used as a resource to local and
State prosecutors, and Federal, and I will endeavor very much
to make that happen.
Senator Klobuchar. Okay. Thank you.
Mr. Breuer. Thank you, Senator.
Senator Klobuchar. Mr. West, whistleblowers, and this could
go to both you and Mr. Breuer, but when we had our previous
hearing, we talked about that, about the mess-up in the Madoff
case and how a whistleblower had come forward and the
information was not taken very seriously. Could you talk about
how you are going to handle that in the civil context?
Mr. West. Yes, Senator. You are quite right that this is
one of the highest priorities of the Civil Division, and we--or
I should say that the Department has been given some good tools
in terms of the False Claims Act and some other tools to make
sure that we have the ability to go after financial fraud. The
Department, I understand, also has an increase requested in
this next fiscal year budget particularly for financial fraud
enforcement. And so, if confirmed, Senator, I can assure you
that it would be my intention to ensure that we are spending
our resources wisely and effectively to do all that we can to
use these tools to the fullest extent possible to root out
fraud and to recover taxpayer dollars which might be lost
through misuse or fraud.
Senator Klobuchar. Thank you very much.
And last, Ms. Varney, I also serve on the Commerce
Committee--I am the only Senator to serve on both committees--
and I am very focused on some of these antitrust commerce
issues. Senator Kohl discussed the antitrust bill that we
passed out. We are very proud of that on this Committee, with
the railroads, and as you look at the letter that you may be
writing to Senator Kohl on this, I just want to remind you that
in 2004 the Department of Justice said that one practice that
would violate the antitrust laws that the railroads do, and
that is that they lease track to a short-line railroad under
the STB rules. A major railroad that leases track to a short-
line railroad can require the short line only to do business
with that railroad, and the Justice Department said back then
that that would violate the antitrust laws. And then there are
huge problems in my State with when you have competition along
the route, they make you price the route to the very end even
if the last 10, 20 miles do not have competition. And it has
been an outrageous problem for all kinds of industries and
small businesses in rural areas in our State.
A second thing just to take note of for the future: I know
that you said FTC Commissioner Leibowitz is there--somewhere
back there. There he is. And I just wanted to call to your
attention a case that the FTC has brought that we are very
proud just came out of some facts in our State where a heart
drug that saves babies' lives, the price was increased 18
times. And it came to our attention from doctors at Minneapolis
Children's Hospital when one drug company sold the rights to
the drug to another drug company that happened to have the
rights to the competing drug. And we brought it to the
attention of the FTC and very quickly, literally in a few
months, they brought a major antitrust case that has been
brought in the jurisdiction of Minnesota.
And so in talking to our doctors in Minnesota, just to
highlight this for you, there is a lot of concern of some of
these potential antitrust violations with pharmaceutical
companies. If you want to briefly comment, I would appreciate
it.
Ms. Varney. Thank you, Senator. On the railroad issue, I
look forward to working with you and your staff on those
particular issues if am confirmed.
On the pharmaceutical issues, as you know, the Federal
Trade Commission does have jurisdiction over that, and I know
that Chairman Leibowitz will do a terrific job, and he can
count on the support of the Department of Justice as he goes
forward and pursues those cases.
Senator Klobuchar. Thank you very much.
Senator Kohl. Thank you, Senator Klobuchar.
Senator Coburn.
Senator Coburn. Thank you, Mr. Chairman.
First of all, let me apologize to each of you that I did
not get to spend time with you in my office. As you can
imagine, these are busy times, and I would extend my apology to
you.
I want to identify my remarks with those of Senator Kohl. I
have been very disappointed over the past 8 years in the
antitrust action of the Bush administration. I have also had
some problems with the Federal Trade Commission as well, and
so, Ms. Varney, when you talk about dealing with the FTC, how
do you plan to work out those issues so that we have a
coordinated, nonduplicative effort to accomplish true, free
competition in this country? How do you not step on one
another? And how do we make sure that we are prosecuting what
we should and influencing what we should?
Ms. Varney. Thank you, Senator. I think I bring two unique
characteristics to the job to be able to do that. One is I was
a former Federal Trade Commissioner. I am deeply committed to
the Commission, that agency.
Senator Coburn. That will help.
Ms. Varney. And I am very close friends and a big admirer
of the current Chairman, Jon Leibowitz, and he and I have had a
chance to visit, and I think we are both committed to ensuring
that there are no more jurisdictional squabbles or policy
differences. These are things that are too important in our
country to----
Senator Coburn. The American people lose when that happens.
Ms. Varney. I agree with you, Senator.
Senator Coburn. They all lose.
Ms. Varney. And I think the Chairman does also.
Senator Coburn. Let me just have one other question. What
does it mean to ``rebalance the legal and economic theories of
antitrust law'' ? What do you mean by that? You said that in
your testimony; you said it in your written testimony. I am not
a lawyer so I have trouble with that. Would you explain to me
what that literally means?
Ms. Varney. Are you an economist?
Senator Coburn. A former accountant, production manager,
and a doctor, and a couple other things.
Ms. Varney. I know you are.
Senator Coburn. Some people say a politician, but not a
very good one.
[Laughter.]
Ms. Varney. I just do not like to have conversations with
economists because they are very good.
I think that what we have seen in the last 8 years is that
a lot of economic theory has been used to inhibit prosecuting
mergers and other activity that may be impermissible. And when
I am talking about rebalancing economic theory, I am talking
about bringing new rigor to the economic analysis that
underpins any prosecution.
As I said, I think what we have seen, in the sort of
shorthand, in the Chicago School analysis is a real reluctance
for government to go forward and attempt to block mergers in
the marketplace, and that is really what I mean when I talk
about rebalancing economic theory.
Senator Coburn. Okay. Thank you.
On one other note, just an aside to get a commitment--and I
have raised this with the FTC, with no response. The ophthalmic
industry in this country today is controlled 60 percent by one
company out of France. Nobody wants to do anything about it.
People are paying 20 or 30 percent more than they should for
products, and yet we have had no action on it whatsoever. So I
would appreciate you looking into that, if you would, after you
are confirmed.
This is a question really for Mr. Breuer and Mr. West both.
One of the fastest ways to help President Obama with the budget
is to go after fraud in Medicare and Medicaid. It is about $120
billion a year. And it would seem to me, since it is covered on
both the civil and criminal, that almost a task force is needed
because it is so egregious. And we are struggling with health
care for Americans, but one of the reasons we is because there
is such a large amount of fraud in the government-run programs.
So I would hope that I would get a commitment from each of
you that you would look at that, that that would be a focus of
what you do and put that on there, because if you cut it in
half, that is tremendous in terms of how we will leverage our
ability to give health care to other Americans, if, in fact,
you just cut that in half.
Mr. Breuer. Senator, I could not agree more. It absolutely
will be a priority and has to be. And should Mr. West and I
both be confirmed, we have already spoken about coordinating
and working very carefully in a number of areas, and this would
seem to be one of the areas that we would work closely
together.
Senator Coburn. Mr. West.
Mr. West. Absolutely, I would agree, Senator, and I agree
with your remarks. And I think it is one of the areas that, if
confirmed, I look forward to talking to some of the career
professionals in the Department who are working on these very
cases to try to do exactly what you suggest.
Senator Coburn. The reason I am interested in that is
aggressive prosecution of that changes behavior. So you do not
have to find it all. All you have to do is scare them, and that
will change a significant amount of behavior.
Mr. Breuer, one other question. I have read your resume and
read your testimony and read the history. You were a prosecutor
for 4 years at the district attorney's office in Manhattan. How
many people in your range of experience have you had under you
to manage in the past?
Mr. Breuer. Senator, I have had smaller groups to manage. I
have been the vice chair of one of America's leading pro bono
groups, and I am proud to say our firm's pro bono group has
always been rated one of the top in the Nation.
I, of course, have been the co-chair of leading one of the
Nation's leading white-collar investigations practices. And I
have led teams such as when I was in the White House.
Senator, I have also been a teacher and a coach, and I
think I would bring my life's experience to managing. I think I
am a good delegator, but I would like to think I am a good
leader by example. And so I am the first to acknowledge,
Senator, I have not led something like the Civil Division, but
I think my life's work puts me in good stead.
Senator Coburn. But it is going to be a big challenge,
there is no question.
Mr. Breuer. It will, and a great honor, and I will give it
all of my energies.
Senator Coburn. All right. Thank you very much.
Thank you, Mr. Chairman.
Senator Kohl. Thank you, Senator Coburn.
Senator Feingold.
Senator Feingold. I thank the Chair, and I want to
congratulate all the nominees and wish you well. I have some
questions for Ms. Varney.
Ms. Varney, the outgoing administration has done serious
damage to competition in many industries through a lack of
enforcement and prosecutions for antitrust violations, lax
merger review, and also generally favoring powerful interests
relative to consumers and small entities. I want to raise some
issues with you in the realm of agriculture, and especially
dairy, but some of these concerns clearly have broader
implications as well.
In September 2008, the Department issued a troubling report
on single-firm monopoly conduct. The majority of the FTC
immediately issued a statement calling the report ``a blueprint
for radically weakened enforcement of Section 2 of the Sherman
Act.'' The FTC Commissioners described the report as being
``chiefly concerned with firms that enjoy monopoly or near-
monopoly power and prescribes a legal regime that places these
firms' interests ahead of the interests of consumers. At almost
every turn, the Department would place a thumb on the scale in
favor of firms with monopoly or near-monopoly power and against
equally significant stakeholders.''
The report and the FTC's reaction confirm my concern that
misplaced priorities have been influencing Antitrust Division
decisions for some time. Will you repudiate the previous DOJ
report? What other repairs are necessary to correct
misrepresentations of the antitrust statutes that may not have
been as formal? And, also, will you take a fresh look at cases
that were either closed with no action or that have been left
open indefinitely?
Ms. Varney. Senator, one of the first things that I will
do, if I am confirmed, is sit down with my colleagues at the
Department of Justice and the Federal Trade Commission to go
over that Section 2 report. I have an open mind about whether
or not it is amended or withdrawn or reworked. I agree that its
conclusions are not appropriate. I do not support the
conclusions in the Section 2 report, and I would like a little
bit of time after I get there to see what our first moves will
be on that, and I would like to consult with the Federal Trade
Commission on that as well.
Senator Feingold. Okay. Since I was first elected to the
U.S. Senate in 1992, there has been significant consolidation
of practically the entire agricultural industry. According to
the National Farmers Unions periodic reports on the
concentration of agricultural markets in that time period, beef
packers, pork packers, broilers, turkeys, milling, soybean
crushing, dairy processing, dairy cooperatives, and the U.S.
food retailing have all seen significant increases in market
share among the largest firms. Moreover, farmers are not only
threatened by monopsony as their processors consolidate, but
similar concentration is also occurring in their suppliers,
such as seed companies. Congress has had more hearings
regarding antitrust concerns in agriculture than any other
area, but the DOJ Antitrust Division has brought no enforcement
actions against anticompetitive practices and no criminal
enforcement actions.
Before last year's challenge of the JBS-National merger, it
had been 10 years since the last challenge of a merger between
agricultural processors. What will you do, if confirmed, to
change that record?
Ms. Varney. Senator, as you and I have had a chance to
visit on, agriculture will be a priority of mine. One of my
first jobs ever was working for the farm workers, and I
understand the relationship between the labor that goes into
creating food and the chain through which it is brought to the
American consumer's table.
Growing up in a large family of six children, I understand
exactly what it means to make your food dollars stretch to feed
growing families. And my family in Ireland--my grandparents
came from Ireland--were all farmers there. So I think I cover
all the chain.
I do intend to go with the Department of Justice through
the activity that they have undertaken and not undertaken in
the agricultural sector in the last 8 years and reinvigorate
the reviews that we need to bring in all of the sectors of the
agriculture industry that you have outlined.
Senator Feingold. I think some of the mergers in the
agriculture industry that were approved over the past 8 years
have caused significant competitive harm, but that is just my
opinion.
Are you open to conducting retrospective studies of the
impacts of approved mergers and monitoring any of the recently
approved mergers, such as the Monsanto-Delta Pine merger?
Ms. Varney. Absolutely.
Senator Feingold. Okay. Thank you. My understanding is that
when the Dean-Suiza merger was considered by the DOJ, the
companies were allowed to create a private agreement and not a
consent decree. Professor Carstensen described in his earlier
testimony before the Committee last year that the firms quickly
found a way around this private agreement, and without a
consent decree, it was difficult to prevent.
Do you plan on seeking formal consent decrees instead of
relying on gentlemen's agreements, if confirmed?
Ms. Varney. Well, let me start with the premise, Senator,
if a merger is anticompetitive, I intend to block it. If a
merger has an anticompetitive aspect that can be remedied, it
will, of course, follow the procedures outlined in the Tunney
Act so that we do create a consent, that the consent goes
before the courts, and that the public has a chance to comment
on that before it becomes final.
Senator Feingold. Dairy farmers have recently seen the
price that they receive drop by 40 to 50 percent, as we have
talked about this morning. At the same time, the price of milk
and other dairy products at the retail level is not exhibiting
such movement. A previous GAO report showed that these retail
prices were ``sticky'' and did not transmit price decreases to
consumers even though the wholesale price increases were
transmitted.
Besides being unfair to farmers and consumers, this problem
also means that the supply and demand signals are not sent. In
this case, consumers are never signaled to increase dairy
consumption by lower prices, and the surpluses at the wholesale
level and low farm prices last longer than they should.
Is there anything the Antitrust Division can do in this
case?
Ms. Varney. I think there is, Senator. I think that, as you
point out, the economic indicators do not seem to align here,
and I think a pretty thorough undertaking, trying to understand
what is going on in that industry and taking action as
appropriate is called for.
Senator Feingold. Finally, several antitrust experts,
including David Balto from the Center for American Progress
and, again, Professor Carstensen from UW Law School, have
called for a task force on competition issues that includes
representatives of the USDA, DOJ, and FTC. During Senate
consideration of the farm bill, I proposed an amendment that
would have encouraged similar coordination. These experts have
suggested that the task force should take evidence to hold
hearings along with determining the full scope of the powers of
the combined agencies under both DOJ authority and the USDA
statutes to prevent price manipulation, refusals to deal on
equal terms, and exclusive buying arrangements.
Do you plan to reach out to other agencies with related
enforcement powers, either formally or informally? And is this
a possible expanded role for the so-called Special Counsel for
Agriculture?
Ms. Varney. Absolutely, Senator. If I am confirmed, when I
get to DOJ, I really do want to understand what the Special
Counsel's role is, what they have been doing, and what they can
do. And as we have had a chance to talk about it, I think it is
very important to reach across to other members of the
government who have concurrent jurisdiction and interest and
figure out a coordinated approach forward. So I do intend to do
that.
Senator Feingold. Thank you.
Thank you, Mr. Chairman.
Senator Kohl. Thank you very much, Senator Feingold.
We have with us the Ranking Member, Senator Arlen Specter.
Senator Specter.
Senator Specter. Thank you, Mr. Chairman. Thank you for
waiting until I was almost seated before calling on me.
[Laughter.]
Welcome to the Judiciary Committee, nominees. You have very
important responsibilities ahead of you, if confirmed, and the
paucity of members is not a reflection on the importance of
your jobs but on the very heavy workloads here, with many, many
obligations. At the moment, the omnibus appropriations bill is
on the floor, and there are constituents--I have 12 million
Pennsylvanians poised on the Mason-Dixon line ready to come to
Washington at any given moment, and other Senators have similar
responsibilities. So do not think that there is any lack of
interest in what you are about to do.
Mr. Breuer, you are the nominee for Assistant Attorney
General in the Criminal Division, a very important role. The
extent of white-collar crime is staggering in America today,
which goes largely undetected and, when prosecuted and when
convicted, too often in my opinion results in fines, which turn
out to be a license to do business.
I saw a note in the paper recently where Siemens
Corporation was fined $1.7 billion, which looks like a lot of
money on the surface but, when contrasted with an $87 billion
figure which was in the story, boils down to a license to do
business.
We see some really phenomenal business practices being
disclosed: Major insurance companies concluding that there be
no claims and they have no funds or reserves to pay insurance
claims; representations of value on corporate balance sheets
which are not present, are fraudulent; a whole wave of conduct
which has engulfed the United States and the world in
tremendous economic problems.
Can we have your assurances that, if you are confirmed,
there will be a really tough line on examination of white-
collar crimes and firm recommendation for jail sentences as a
deterrent?
Mr. Breuer. Absolutely, Senator. Seeking out and
prosecuting financial crime will absolutely be a priority,
should I be fortunate enough to be confirmed. And I could not
agree with you more, Senator, that in doing that, we have to
follow the facts. Those who have acted criminally and those who
have taken advantage and done some of the things that have
brought us to the situation we are in now must realize that
when you break the law, you will be held to account. And,
Senator, when appropriate, we will absolutely aggressively seek
not simply financial penalties but jail time as well.
We will let the facts go where they are, Senator. We will
aggressively prosecute them, and financial crime will be a very
large priority.
Senator Specter. Mr. Breuer, how long were you in the
Manhattan district attorney's office?
Mr. Breuer. Senator, I was fortunate enough to start my
career there after graduating from Columbia Law School. As a
New Yorker, I went there from 1985 to 1989. And since then, of
course, Senator, I have----
Senator Specter. How many jury trials did you have there?
Mr. Breuer. Senator, I probably had roughly 20 jury trials
while I was--15 to 20, closer to 20, I think, when I was in the
Manhattan D.A.'s office.
Senator Specter. What was the most important case you
tried?
Mr. Breuer. Well, I have tried a number of cases, Senator.
In private practice, when the courts have asked, I have tried
murder conspiracy cases. I have litigated some large False
Claims Act cases. In the D.A.'s office, Senator, as a
relatively young prosecutor, I prosecuted and tried a murder
conspiracy case. I did domestic violence cases.
Senator Specter. I do not want to interrupt you, but I do
not have a whole lot of time. My briefing materials says you
are probably best known for your representation of President
Clinton during the impeachment trials. Why didn't your client
appear during the course of the trial?
Mr. Breuer. Senator, I was----
Senator Specter. It is not funny, Ms. Vancey. It is a
serious question.
Mr. Breuer. Senator, I was very privileged to be one of the
lawyers who----
Senator Specter. Varney, rather. Pardon me. I had my
glasses tilted.
Go ahead.
Mr. Breuer. Senator, I was very privileged to be one of the
lawyers to represent the President of the United States, and,
of course, in doing that, both the White House Counsel and the
individual lawyers together worked----
Senator Specter. Are you coming to the answer?
Mr. Breuer. Well, Senator, as you can imagine, the answer
to why the President did not come testify was given the way the
procedures worked at that time, a decision was made in
conjunction with the Senate and in conjunction with the
managers----
Senator Specter. You thought it would be wiser not to have
him there?
Mr. Breuer. Well, Senator, obviously I am not going to
speak about internal discussions, but I think the fact----
Senator Specter. I was not asking about internal
discussions.
Mr. Breuer. Senator, I would like to think that overall
history reflects that the Senate impeachment hearing and trial
was really a great testament to the brilliance of our Founders,
and I think those, Senator, who worked on that believed that an
appropriate and right outcome came and that the procedure
worked.
Senator Specter. Do you remember my question?
Mr. Breuer. I do, Senator, and----
Senator Specter. What was my question?
Mr. Breuer. Senator, your question was: Why did the
President not appear?
Senator Specter. Yes. Why?
Mr. Breuer. And, Senator, I cannot give you a more specific
answer than I am right now.
Senator Specter. Well, can you give me a non-specific
answer?
Mr. Breuer. Well, I think in considering the best
representation of the President, those who were involved in
that decision, Senator, candidly, I don't recall that I was one
of those people. Presumably----
Senator Specter. It was not up to you?
Mr. Breuer. It was not up to me, Senator.
Senator Specter. Well, that is a really good answer. Why
didn't you start there?
Mr. Breuer. Senator, if I could start over, I will give you
that one.
[Laughter.]
Senator Specter. I will give you another aspect of that.
Was there any consideration that, if called, he would take the
privilege against self-incrimination? I am just giving you
another chance because you wanted another question.
Mr. Breuer. Senator, obviously, I was not involved in that
decision. Obviously, I am--as I know you are, Senator--a strong
believer in that tenet and in that principle.
Senator Specter. Ms. Varney, the Antitrust Division is
really a tremendously important position, and there are a lot
of questions that I have for you. We will submit some in
writing. I would like to ask one this afternoon, and that is on
the subject of the National Football League. They have an
antitrust exemption from 1961 legislation, but it does not
cover cable or satellite. They have a monopoly on the teams, on
the games. They have their own channel. They have the Thursday
and Saturday night specials. A lot of Eagles and Steelers fans
are excluded who watch cable television.
Will you commit to take a close look at what they are doing
to see if there is an antitrust violation?
Ms. Varney. Yes, Senator. Absolutely I will.
Senator Specter. Okay. Well, that is a good answer. I will
not pursue it farther.
I will note that there is a Third Circuit decision which
suggests that there is an antitrust violation, enormous
interest in what goes on there, and enormous concern about
moving to pay television on all the big sporting events. And
there are a great many issues which will come where we will
have a chance to talk further.
Mr. West, what do you think about the Supreme Court
decision yesterday on alignments of voting districts?
Mr. West. Well, Senator, I would--as you know, civil rights
decisions are not really within the jurisdiction of the Civil
Division, but I will tell you that I thought it was
interesting. It is a close vote, 5-4. And I think it does give
some guidance. A clear 50-percent rule now exists that courts
and other litigators can follow.
I would hesitate to comment on it any further because I do
note that the Department has a case which is pending which may
be implicated by some of the discussion in that case. It is----
Senator Specter. Let me move to another subject so I do not
abuse the red light too much here. What plans, if any, do you
have for improving the operation of the Civil Division?
Mr. West. Well, Senator, I appreciate that question. I
think it begins----
Senator Specter. I have noticed that virtually all the
answers this time begin with, ``Well, Senator, I appreciate the
question.'' Is that part of the murder boards?
Mr. West. No. I actually appreciate this question.
[Laughter.]
Senator Specter. Could it both be part of the murder boards
and really appreciating the question?
Mr. West. It could be both, Senator, but I am candid with
you, because the Civil Division, as you know, Senator, is one
of the largest divisions in the Department of Justice, and the
work there is very important. And I think it begins by
respecting the judgments and opinions of the Civil Division
career employees who are there who work very hard at their
jobs.
If I am fortunate enough to be confirmed, that will be the
standard that I adhere to, and I think talking with them,
making sure I am consulting with the client agents, the
priorities that they have and others in the Department of
Justice, my colleagues, the Attorney General, that will be the
general approach I will take to managing that Division.
Senator Specter. Just one final question for you, Mr.
Breuer. We are deeply involved in health care now, looking for
a way to pay for health care costs. And there is reportedly a
tremendous amount of fraud in Medicaid and Medicare. I would
like your commitment that you will make that a priority and, as
I questioned you on white-collar crime generally, look toward
criminal sanctions. Deterrence is not realistic if you are
dealing with a domestic dispute or homicide or manslaughter--
involuntary manslaughter, voluntary manslaughter--but a white-
collar crime, it is. May we have your commitment that you will
make that a high priority?
Mr. Breuer. Senator, you do have that commitment.
Senator Specter. And on government contracting as well,
really in the entire civil field, to look forward for criminals
sanctions as a deterrent to try to stop conduct of that sort.
Mr. Breuer. Senator, I agree. I think criminal sanctions
are a vital part and are essential for the requisite deterrence
that is needed.
Senator Specter. Mr. Chairman, thank you for presiding and
for allowing me a little extra time here today. I did that for
you once when I was Chairman.
Senator Kohl. I think you have done an excellent job, as
you always do, Mr. Specter.
Senator Specter. Let me conclude by saying congratulations
to you. You really have very outstanding records. Nice to see
young lawyers with good records academically.
The only final question I have for all three of you is: Why
isn't there a Yale Law grad in the group?
[Laughter.]
Thank you, Mr. Chairman.
Senator Kohl. Thank you, Senator Specter.
Now we turn to Senator Ben Cardin.
Senator Cardin. Thank you, Mr. Chairman. I also want to
thank all of you for being willing to serve your country, and I
particularly want to thank your families for the sacrifices
that they have to make in order for you to be able to do what
you want to do and help our country. So we thank you for that.
I do have to follow up with Senator Specter in regards to
the Ravens fans and the Redskins fans. I understand the issues
with the NFL and with the antitrust laws, Ms. Varney, but I do
think the fact that they operate a station and use that for
their own benefit is something that needs to be looked at, and
I would urge you to follow Senator Specter's request and keep
us informed in regards to that matter.
Mr. Breuer, I want to talk a little bit about the
disparities within our criminal justice system. When we take a
look at the incarceration rates at the national level, Federal
level, and State courts, we find a major disparity based upon
race. And when we look at some of our criminal statute, we look
at the crack/powder cocaine issue, and we see a disparity that
cannot be justified with the demographics of those who are
tried and convicted and sentencing based upon race.
So I just want to get your commitment to make the issue of
fairness within our criminal justice system, one in which the
people of the Nation feel that their laws are being enforced
fairly, a high priority if you are confirmed to this position.
Mr. Breuer. Senator, you have that. If our criminal justice
system means anything, we must ensure that it is fair and
impartial and that it is not unfair to certain segments of the
population.
Of course, your leadership and others' on the issues such
as the crack cocaine disparity is clearly the kind of issue
that needs a very, very hard loOkay. You have that commitment,
Senator.
Senator Cardin. There are things that we can do as far as
the statutes are concerned, and we look forward to your
recommendations in that regard. But there are also things that
you can do directly through the management within the
Department of Justice as well as working with our State
prosecutors. And I would just urge you to take a very active
role in that regard, and I thank you for your response.
We do have a justice integrity bill which Senator Specter
and I have filed that will allow for ten pilot programs to work
within each of the U.S. Attorneys to try to deal with ways in
which we can have more community confidence that ethnic
considerations are not part of decisions as to whether to
prosecute or not or the type of sentencing that is recommended.
During the questioning of Attorney General Holder, we
talked about that, and he actually had a model program when he
was U.S. Attorney and favored that. I bring that to your
attention because we are going to need your cooperation. I hope
that legislation will move forward, but working with you to
make sure that it is implemented in a way that we can get the
best results in our community in support of what we are trying
to do.
Mr. Breuer. Absolutely, Senator.
Senator Cardin. Thank you.
Now, one other thing about your background that impressed
me, and that is pro bono. I am going to ask Mr. West this
question since it falls more within the Civil Division. We have
been negligent over the last 20 years or so and falling down in
providing support for legal services in America. We have not
made much progress, and many Americans are denied access to our
legal system because they cannot afford an attorney. And the
legal service programs have been very much strapped.
I really do think leadership is needed at the national
level. We are going to try to take up a legal services
reauthorization bill during this Congress. We may or may not be
successful. But it seems to me, as the No. 1 civil attorney in
our country, if you are confirmed, that you can play a very
important role in getting this message out.
So I want to hear from you your commitment to the integrity
of our system, which includes that every American has access to
a civil legal system.
Mr. West. Well, Senator, you have my commitment on that,
and it would be an honor because I am fortunate to come from a
law firm and a tradition that reveres pro bono service, thinks
it is important not only to the individuals that we provide
services to, but to the profession. And that is something that
I look forward to not only, if confirmed, working with the
Department attorneys on, but working with you and others who
have an interest in this area. I think it is very, very
important to the profession, the legal profession.
Senator Cardin. Thank you. I appreciate that.
I wish you all good luck. You are signing up for, I think,
an extremely important role in our justice system, and once
again, I thank you all for being willing to serve your country.
Thank you, Mr. Chairman.
Senator Kohl. Thank you very much, Senator Cardin.
One additional question for you, Ms. Varney. I believe that
one of the best ways to contain health care costs and bring
skyrocketing drug prices under control is the competition
provided by generic drugs. In recent years, brand-name drug
companies have paid millions of dollars to generic drug
companies to settle patent cases in exchange for the generic
drug company's agreement to keep competing generic drugs off
the market.
I have introduced legislation to make this practice
illegal. It is the Federal Trade Commission that is responsible
for policing competition in the prescription drug market. But
the Justice Department appeared to go out of its way and hinder
the FTC in this regard. Two recent court of appeals decisions
have prevented the FTC from bringing legal actions to challenge
these anticompetitive, anticonsumer patent settlements.
When the FTC sought Supreme Court review of one of these
lower court decisions in 2006, the Justice Department filed its
own brief that opposed the FTC and argued that Supreme Court
review was not warranted. I was disappointed that the Justice
Department essentially lined up on the side of the parties
making these deals, and in so doing opposed the FTC position.
Ms. Varney, will you commit to work to change the Justice
Department's position on these reverse payment cases?
Ms. Varney. Yes, Senator, I do commit to work with the
Department of Justice to align the Federal Trade Commission and
the DOJ on the reverse payment issue. And if the courts
continue to not reach the result that you and your Committee
think is appropriate, then legislation may be necessary.
Senator Kohl. So you are supportive----
Ms. Varney. Yes, Senator.
Senator Kohl [continued]. Of being in opposition to these
reverse payments.
Ms. Varney. Yes, Senator, I am.
Senator Kohl. All right. One other question, and that is on
something that is called ``the Charleston newspaper question.''
In 2007, in one of the very rare challenges to a merger or
acquisition undertaken by the Justice Department in the last
administration, the Department filed suit against the
publishers of the Charleston Gazette, in Charleston, West
Virginia. This lawsuit alleged that the publishers of the
Charleston Gazette violated antitrust law when it sought in
2004 to acquire full ownership of Charleston Newspapers, the
company that publishes both the Gazette and the Charleston
Daily Mail.
Allegations have been raised that this case was improperly
motivated by political considerations. The Charleston Gazette
was a major critic of the Bush administration on its editorial
pages. Critics of the case are puzzled by the basis for
bringing the lawsuit, noting that both newspapers were already
under common ownership prior to the 2004 buyout.
You are not yet in office, I understand, at the Justice
Department and, thus, are not privy to all the facts in this
case. However, will you pledge to re-examine this case to
ensure that it was not brought for any political motives and to
ensure that it is based on sound applications of antitrust law?
Ms. Varney. Absolutely, Senator. If confirmed, I will
review the case.
Senator Kohl. Okay. Thank you so much to one and all. We
will keep the record open for just a bit to be sure that all
letters and questions to this Committee have been received. And
I would like to thank all of you for being here today. You have
done a great job, and we wish you well. Thank you so much.
[Whereupon, at 3:48 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
NOMINATIONS OF DAVID F. HAMILTON, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR
THE SEVENTH CIRCUIT; RONALD H. WEICH, NOMINEE TO BE ASSISTANT ATTORNEY
GENERAL OF OFFICE OF LEGISLATIVE AFFAIRS, DEPARTMENT OF JUSTICE; AND R.
GIL KERLIKOWSKE, NOMINEE TO BE DIRECTOR OF NATIONAL DRUG CONTROL
POLICY, EXECUTIVE OFFICE OF THE PRESIDENT
----------
WEDNESDAY, APRIL 1, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:30 p.m., room
S-127, The Capitol, Hon. Patrick J. Leahy, Chairman of the
Committee, presiding.
Present: Senators Leahy, Schumer, Whitehouse, Klobuchar,
Kaufman, and Specter.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. It's now 2:30. I apologize to everybody for
squeezing over here, but we're in the annual budget marathon.
We're about to have a series of statements and votes upstairs.
There are excellent nominees before us. David Hamilton, who
is strongly supported by the two Senators from his home State,
one of my best friends in the Senate and long-time friends
because we go back a long time, the senior Republican of the
Senate, Senator Lugar. Another distinguished Senator, Evan
Bayh, from his State.
We have Ron Weich to be Assistant Attorney General for
Legislative Affairs. Ron is well-known to all of us and is a
good friend. I like the fact that he's also a former
prosecutor.
I'm going to put in the record a letter from a former
Chairman of this Committee, Senator Kennedy, on his behalf.
[The Letter from Senator Kennedy appears as a submission
for the record.]
Senator Specter has agreed to add the nomination of R. Gil
Kerlikowske. I'm not the first one to have trouble with that,
Chief, who has 36 years of experience in law enforcement,
including Chief of Police for the Seattle Police Department.
So with that, I'll put my full statement in the record.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
I see the distinguished Majority Leader, Senator Reid, is
here and I will yield first to Senator Reid, and then we'll go
by seniority with the Senators who are here, following our
normal practice.
Senator Reid.
PRESENTATION OF RONALD H. WEICH, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, OFFICE OF LEGISLATIVE AFFAIRS, DEPARTMENT OF
JUSTICE, BY HON. HARRY REID, A U.S. SENATOR FROM THE STATE OF
NEVADA
Senator Reid. Mr. Chairman, thank you very much for
allowing me to testify. This is a very important occasion for
me. As we all know, as Members of the Senate, we have the
opportunity to work with the best people in the world, such
dedicated people who are not out to see how much money they can
make, but see what differences they can make in our society.
We're all grateful for every one of these fine people who work
with us.
But there are a few, at least in my career, that stand out
with their intellect, their dedication, and a work ethic that
makes them indispensable. Ron Weich is one such person who has
worked for me as part of my senior staff for 4 years. He's been
by my side on every critical legal question I've had for these
past 4 years.
I recommend to this Committee Ron Weich for the position of
Assistant Attorney General of our country. I do it with some
measure of regret and sadness of not having him in my office,
but with the absolute confidence that he'll serve our country
and Attorney General Holder with the utmost skill and
dedication.
Ron, like his mom, who was one of the first women to
graduate from Brooklyn Law School, began his career in the
courtroom as a prosecutor. He attended Columbia University,
Yale Law School. He tried cases involving violent crimes as
Assistant District Attorney in Manhattan. There's no question
that part of what makes Ron so effective is his real-world
experience--not an academic, but real-world experience.
This experience gives him the perspective to understand how
to do legal policy and will actually work in practice. While
many of his colleagues were entering the private sector, Ron
spent almost his entire career in public service. I believe we
are a better country because of people like Ron Weich.
After his tenure in the District Attorney's Office, he
served at the U.S. Sentencing Commission, and then for Senators
Specter and Kennedy. Following his stint at a law firm, Ron
returned to government service to work as my senior, and then
chief, counsel, when I became the Democratic Leader in 2004.
Ron's work for Senators Kennedy and Specter are indicative
of the character and strength that will serve him well as
Assistant Attorney General. He's built a foundation of trust
and friendship with key Members of Congress, both Democrats and
Republicans. For example, Ron was once--during debate--and
worked closely with members of the Gang of 14, which consisted
of 7 Democrats, 7 Republicans, as they negotiated a solution to
a potential constitutional crisis. He also played the lead role
in laying out ethics and lobbying reform legislation passed
last year. In his new role, Ron will be responsive to requests
from Democrats and Republicans. In the best tradition of
Department of Justice, he will serve in a manner blind to
partisanship, blind to politics, and--rule of law.
Ron's parents, Robert and Cecile, his wife Julie, and
daughters Sophie and Sarah are here today. I'm grateful that
they've shared Ron with us through the years. In his new role,
Ron Weich will play an integral role, an integral part,
rebuilding the Department of Justice to the once-again place
where all are equal under the law, all are protected by the
law, and no one is above the law.
Thank you very much, Mr. Chairman and members of the
Committee.
Chairman Leahy. Thank you. Thank you very much.
Senator Reid. Thanks for allowing me to say a nice word
about my friend, Ron.
Chairman Leahy. Thank you. As I said, it's extraordinary
that we're having it in here, but I recall, right after 9/11 we
had one where one of President Bush's nominees--most of the
hearing room was closed down, the House was closed down, and
most people were leaving town. I convened a special hearing in
here to accommodate President Bush and get his nominees
through, and that's why we're doing it here, because of the
vote.
Senator Reid. Mr. Chairman, you being one of the longest-
serving members of the Appropriations Committee, you've been
here a few times anyway.
[Laughter.]
Chairman Leahy. I have been here.
Senator Reid. Could I be excused, Mr. Chairman?
Chairman Leahy. Of course. Please.
[Laughter.]
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman.
The Republican members of this Committee will not be
participating because there has been insufficient time to
prepare for this hearing. I ask that the letter I've sent
asking for a postponement be made a part of the record,
together with a letter signed by all the Republicans sent to
you yesterday.
Chairman Leahy. Without objection, it'll be part of the
record.
[The letters appear as a submission for the record.]
Chairman Leahy. Also, the news article covering the first
letter which appeared before I received the letter will also be
made part of the record, and my response. I did not receive the
letter, but yes it may be a part of the record. My response
will be there, and the news articles detailing the letters
before I received them will be made part of the record.
[The information appears as a submission for the record.]
Senator Specter. For all of those assembled, especially to
the three nominees, I regret that there is a very strong
conclusion that this position has to be taken. I personally
find it very distasteful to raise these considerations in the
Judiciary Committee, but I do so because of the conclusive
nature of the record which shows that there has been grossly
insufficient time to prepare.
And I'll be very specific about it. The nomination of Judge
Hamilton--and before I go on, let me say that the academic and
professional records of these nominees is exemplary. Mr. Weich,
especially close to me since he served so ably on my staff and
I've watched him perform for Senator Kennedy and for the
Majority Leader. Judge Hamilton, whose record I've examined,
who, parenthetically, was a student with my son at Haverford.
Shane Specter speaks very highly of you. I met with the nominee
for Drug Czar and found him, on a personal level, Chief
Kerlikowske, to be very able. But the chronology of events here
really speaks for itself.
Judge Hamilton's nomination was announced on March 17th.
The Committee did not receive his questionnaire until March
18th. The questionnaire was not completed until March 24th.
Judge Hamilton has been a District Judge for almost 15 years
and, according to his calculation, has authored roughly 1,150
written opinions, over 9,500 pages, and has submitted
approximately 2,000 pages of speeches, articles, and public
policy papers.
The nominations of the other individuals were also
submitted within approximately 2 weeks. In the past, President
Bush's nominees were submitted with Senators having, on
average, 166 days to prepare for a hearing and 117 days to
prepare for President Clinton's Circuit nominees. So on the
procedural aspect, there has been just totally insufficient
time to review these matters.
I'm not going to make a show of these boxes, but if I were
to stack up the papers, they would be about four feet high on
the desk. But I'm not going to do that. There is a special
concern about this time sequence in light of the fact that
Judge Hamilton's nomination is the first, and we're going to
have many, many more.
The Constitution, as we all know, calls on the Senate to
confirm. Indispensable to the confirmation process is an
opportunity to examine the record of the individual, and that
means a hearing, and that means questions and answers, and that
means an opportunity to prepare.
So on process, I think the record is conclusive that we
haven't been given a reasonable amount of time. I regret that
very much on the personal level with Senator Leahy. It is well
known he and I have been working together since 1970 when were
District Attorneys and worked coordinately on this Committee,
more than 90 percent of the time cooperatively.
Now, beyond the issue of procedure and process, there are
also substantial questions to be asked. Staff has prepared
summaries of some of the cases that Judge Hamilton has engaged
in. These questions, I think, fairly--these cases fairly
warrant an examination.
But let me make a point: I don't necessarily disagree with
anything you've done, Judge Hamilton. And that is not to say
that I agree with it.
[Laughter.]
But I am raising issues for inquiry just by doing just
that. But I can tell you that there are members of this
Committee on the Republican side who do disagree with some of
what you said, but I do not state that in raising these cases.
Heinrichs v. Bosma. The case involved the practice of the
Indiana General Assembly opening each session with a prayer.
Judge Hamilton said that was unconstitutional; the Seventh
Circuit reversed on the issue of--complex issue. A lot to be
said on both sides.
Women's Choice v. Newman. The rulings which you had handed
down delayed a decision in that case for some 7 years.
Ultimately, the Seventh Circuit reversed. Chairman Leahy is
reminding me that there's a 5-minute rule, so I'll be as brief
as I can.
Grossbond v. Indianapolis, Marion County Building
Authority, question of a Hanukkah menorah. The Seventh Circuit
again reversed. Tough issues, First Amendment, require some
examination.
Go v. Prosecutor. The issue involved registration as a sex
and violent offender, also involving the consent of the search.
Another complicated issue.
United States v. Woolsey. The statute required a life
sentence. Life sentence was imposed, with the additional
statement that you disagreed with it and hoped that it would be
reversed by executive clemency. Okay. But it's worth some
examination. United States v. Reinhart. You found a minimum
mandatory sentence to be unjust, could not impose a just
sentence in the case. Bolls Commas. Perhaps warranted, but
certainly worthy of some inquiry.
Very briefly as to Chief Kerlikowske, issues have been
raised as to the Chief--again, let me compliment him on the
meeting that I had with him--as to his policies on marijuana.
Here again, I'm not saying I disagree, just an issue, but there
are others who want to talk about it. An issue about not taking
action against some rioters, some disagreement by 88 percent of
the police union members. I'm not saying I disagree with you,
but there are issues to be examined.
Mr. Weich, some questions about his views on minimum
sentences and the Unborn Victims of Violence Act. Here again,
not making any comment one way or another, just that there are
those who wish to be heard on that.
Chairman Leahy. Well, we will hear first from Senator
Lugar, and of course anybody can ask any question you want.
I would note, parenthetically, there's going to be almost 4
weeks before any of these nominations are even on the agenda,
so there will be time for further meetings and for any follow-
up questions during those 4 weeks.
Again, I thank people for coming down here, as they did
when I accommodated President Bush right after 9/11 on nominees
that he wanted to get through on very, very short notice.
Senator Lugar.
Senator Specter. Mr. Chairman, I hadn't quite finished.
Chairman Leahy. I apologize. I'll let you go for your round
of questions. I know you have more and I can't wait to hear it.
Senator Specter. Well, I would like to just say one more
thing, because I intend to leave. That is that it is common
practice to have informal sessions with nominees. I would hope
to not have to put you through eight or nine of those
individually. I would hope that you would be willing, perhaps
even volunteer, perhaps even urge another hearing, but I don't
have the gavel anymore.
Thank you.
Chairman Leahy. Senator Lugar. I do have the gavel. Senator
Lugar, please go ahead.
PRESENTATION OF DAVID HAMILTON NOMINEE TO BE U.S. CIRCUIT JUDGE
FOR THE SEVENTH CIRCUIT BY HON. RICHARD LUGAR, A U.S. SENATOR
FROM THE STATE OF INDIANA
Senator Lugar. Thank you, Mr. Chairman, for this
opportunity to join my friend and colleague, Evan Bayh from
Indiana, in introducing Judge David Hamilton, whom the
President has nominated to serve in the U.S. Court of Appeals
for the Seventh Circuit.
Senator Bayh and I are proud that President Obama's first
judicial nominee is from our State of Indiana and that he has
chosen to elevate such an exceptionally talented jurist to the
Federal appellate bench. I first had the pleasure of
introducing David Hamilton to this Committee almost 15 years
ago when he was nominated to the Federal District Court.
I said then that the high quality of his education, legal
experience, and character well prepared him for this position
and expressed my belief that his keen intellect and strong
legal background will make him a great judge. This confidence
in David Hamilton's character and abilities was shared by all
who knew him, regardless of political affiliation, throughout
Indiana's legal and civic communities.
Judge Hamilton's distinguished service on the U.S. District
Court for the Southern District of Indiana, which he is now the
Chief Judge, has more than vindicated that faith. I have known
David Hamilton since his childhood. His father, Reverend
Richard Hamilton, was our family's pastor at St. Luke's United
Methodist Church in Indianapolis, where his mother was a
soloist in the choir. Knowing firsthand his family's character
and commitment to service, it has been no surprise to me that
David's wife has borne witness to the values learned in his
youth.
He graduated with honors from Pennsylvania's Haverford
College. While on a Fulbright scholarship to study in Germany
at the University of Cologne, and earned his law degree at
Yale. After clerking for Seventh Circuit Judge Richard Cudahy,
David joined the Indianapolis office of Barnes & Thornberg,
where he became a partner and acquired extensive litigation
experience in the Indiana and Federal judicial systems.
When our colleague, Senator Bayh, was elected Governor of
Indiana he asked David to serve as his chief legal counsel.
Among other achievements, in that role David supervised the
overhaul of State ethics rules and guidelines and coordinated
judicial and prosecutorial appointments.
In the latter capacity, David worked closely with Judge
John Tinder, then a Reagan appointee to the District bench,
whom President Bush recently appointed to the Seventh Circuit
with the unanimous support of this Committee and the full
Senate.
When David was nominated to the District Court, Judge
Tinder wrote to me that ``David was meticulous in asking the
difficult questions of, and about, judicial nominees,'' and
that ``his approach to these duties typifies the deliberate and
sensitive way in which he approaches matters in his
professional life.'' The same is true of David's approach to
his judicial duties. Leading members of the Indiana Bar
testified to his brilliance and, more importantly, his
character, dedication, and fairness.
David Hamilton is the type of lawyer and the type of person
one wants to see on the Federal bench. His colleagues on the
Southern District of Indiana bench, a talented, exceptionally
collegial group from both parties, unanimously endorsed these
conclusions.
Allow me to close with a few further thoughts. Members may
recall when I introduce now-Chief Justice Roberts to this
Committee in 2005. My concern is that today's Federal judiciary
is seen by many as a political branch, with the confirmation
process often accompanied by the same over-simplification and
the sources that are disturbing even in campaigns for offices
that are, in fact, political.
This phenomenon is most pronounced at the Supreme Court
level and traces to several causes that I'll not try to address
today, but I mention it, however, to underscore my commitment
to a different view of judicial nominations which I believe
comports with the proper role of the judiciary in our
constitutional framework. I do not view our Federal courts as
the forum for resolving political disputes that the legislative
and executive branches cannot, or do not, want to resolve.
Our founders warned, in words quoted in my statement at the
time of Chief Justice Roberts' nomination, against allowing
``the pestilential breadth of faction to poison the fountains
of justice,'' which they knew would stifle the voice both of
law and of equity.
This is why I believe our confirmation decisions should not
be based on partisan considerations, much less on how we hope
or predict a given judicial nominee will vote on a particular
issue of public moment or controversy, and instead try to
evaluate judicial candidates on whether they have the requisite
intellect, experience, character, and temperament that
Americans deserve from their judges, and also on whether they
indeed appreciate the vital, and yet vitally limited, role of
the Federal judiciary faithfully to interpret and apply our
laws rather than working to impose their own policy views.
I support Judge Hamilton's nomination, and do so
enthusiastically because he is superbly qualified under both
sets of criteria.
Finally, permit me to thank my colleague from Indiana on
the thoughtful, cooperative, merit-driven attitude that has
marked his own approach to recommending prospective judicial
nominees from our State of Indiana. The two most recent
examples are a strong support for President Bush's nomination
of Judge Tinder for the Seventh Circuit, and of Judge William
Lawrence for the Southern District of Indiana.
I am confident that Senator Bayh and I will continue to
approach nominations by President Obama in the spirit that
brings us before you today, and I thank you very much.
Chairman Leahy. Thank you very much.
Senator Bayh.
PRESENTATION OF DAVID HAMILTON NOMINEE TO BE U.S. CIRCUIT JUDGE
FOR THE SEVENTH CIRCUIT BY HON. EVAN BAYH, A U.S. SENATOR FROM
THE STATE OF INDIANA
Senator Bayh. Thank you, Chairman Leahy. I've had an
opportunity----
Chairman Leahy. Allow me to mention, all Senators, I know
you've got a million other things. So if a Senator speaks and
then leaves--a Senator speaks first and then leaves, that
doesn't mean they no longer support you.
[Laughter.]
Senator Bayh. I know my friend and colleague has a busy
schedule, but Dick, before you have to go, I just want to thank
and commend you for that very thoughtful and eloquent
statement. I, too, want to thank you for the exemplary manner
in which you handled judicial nominations under President Bush.
The spirit of cooperation, comity, consultation is one that I
fully intend to continue throughout our service together. So, I
thank you. Thank you for all of that, and so much more.
And Mr. Chairman, I have had an opportunity before to tell
you how much I appreciate being before your Committee once
again. It's a Committee that my father had the privilege of
serving on for 18 years.
Chairman Leahy. And chaired.
Senator Bayh. Indeed. So there's always been a fond spot in
the Bayh family heart for the Judiciary Committee.
I am pleased, Mr. Chairman, to be before you again and to
have this opportunity to introduce an individual for whom I
have the greatest respect and admiration, Judge David Hamilton.
Before I speak to Judge Hamilton's qualifications, I would
like to comment briefly on the judicial nominations process
generally. In my view, this process has too often been consumed
by ideological conflict and partisan acrimony. During the last
Congress, I was proud to work with Senator Lugar to recommend
John Tinder as a bipartisan, outstanding consensus nominee for
the Seventh Circuit Court of Appeals.
Judge Tinder was nominated by President Bush and
unanimously confirmed by the U.S. Senate by a vote of 93:0. It
is my hope that Judge Tinder's confirmation would serve as an
example of the benefits of nominating qualified, non-
ideological jurists to the Federal bench.
In selecting Judge Hamilton as his first judicial nominee,
President Obama has demonstrated that he also appreciates the
benefits of this approach. I was proud to once again join with
Senator Lugar to recommend Judge Hamilton to President Obama. I
hope that going forward other Senators will adopt what we call
``the Hoosier approach,'' working together to select consensus
nominees.
On the merits, Judge Hamilton is an accomplished jurist who
is well-qualified to be elevated to the Seventh Circuit Court
of Appeals. He has served with distinction as a U.S. District
Judge for almost 15 years, during which time he has presided
over approximately 8,000 cases.
Since January of 2008, he has served as the Chief Judge of
the Southern District of Indiana, where he's been widely
praised for his effective leadership style. Throughout his
career, Judge Hamilton has demonstrated the highest ethical
standards and a firm commitment to applying our country's laws
fairly and faithfully.
In recommending Judge Hamilton I have the benefit of being
able to speak from personal experience, as I had the
opportunity to work closely with him while I was Governor of
our State. In his role as counsel to the Governor, Judge
Hamilton helped me to craft bipartisan solutions to some of the
most pressing problems facing our State.
In particular, he helped to favorably resolve several major
lawsuits that threatened our State budget and drafted a tough
new ethics policy to ensure that our State government was
operating openly and honestly. In addition to his insightful
legal analysis, I could always count on David for his sound
judgment and common-sense Hoosier values he learned growing up
in Southern Indiana.
During his service in State government, Judge Hamilton also
developed a deep appreciation for the separation of powers and
the appropriate role of the different branches of government.
If confirmed, Judge Hamilton will bring to the Seventh Circuit
a unique understanding of the important role of the States in
the Federal system and will be ever mindful of the appropriate
role of the Federal judiciary. He understands that the
appropriate role for a judge is to interpret our laws, not to
write them.
On a personal note, I have known Judge Hamilton for over 20
years. I know him to be a devoted husband to his wife and a
loving father to his two daughters. He is the nephew of former
Congressman Lee Hamilton, and the embodiment of good judicial
temperament, intellect, and even-handedness. I have high
confidence that, if confirmed, Judge Hamilton will be a superb
addition to the Seventh Circuit Court of Appeals and I am
pleased to give him my highest recommendation.
Mr. Chairman and other members of the Committee, it is my
distinct pleasure to present for your consideration Judge David
Hamilton.
Chairman Leahy. Well, thank you. Thank you very much.
We have Senator Murray. You're here to speak for the Chief,
I understand.
Senator Murray. I am. And I can say his name.
[Laughter.]
Chairman Leahy. I have a feeling that when I call up the
nominations at the time of the mark-up, however I pronounce his
name will be acceptable to the Chief.
[Laughter.]
Senator Murray. I am sure you are correct.
PRSENTATION OF R. GIL KERLIKOWSKI, NOMINEE TO BE DIRECTOR OF
NATIONAL DRUG CONTROL POLICY, EXECTIVE OFFICE OF THE PERSEDENT,
BY HON. PATTY MURRAY, A U.S. SENATOR FROM THE STATE OF
WASHINGTON
Senator Murray. Mr. Chairman, thank you very much. It
really is my honor to be here, along with Senator Cantwell, to
introduce to you Gil Kerlikowske, who's the Chief of the
Seattle Police Department, at this very important hearing. I
want to welcome Chief Kerlikowske and his wife, Anna, who is
with him as well, and congratulate his entire family on this
nomination for this very important office.
I also want to thank the Chief and his family for accepting
this responsibility at, really, this important time in our
Nation's history. So, thank you very much to both of you.
Mr. Chairman, we know that the next ONDCP Director is going
to face a number of key challenges. He will play a key role in
addressing the drug-related violence in Mexico along the
Southwest border. We know from history that as the economy
falls, crime rises and it is growing at the same time that law
enforcement agencies across our country are facing painful
cutbacks and greater strains on their personnel and resources.
Law enforcement from all different levels has to work
smarter, forge new relationships, and leverage the resources
that they do have. Mr. Chairman, Gil Kerlikowske is the right
man to address these challenges. He brings a fresh, new
perspective to the job as the Nation's Drug Czar. He is a cop's
cop and his perspective was shaped controlling the streets in
Florida, New York, and Washington State.
Along the way he has helped thousands of people touched by
violence and drugs. He and the people he has led have been on
the front lines of our Nation's war against illicit narcotics
and in keeping our community safe. He'll bring that hands-on
perspective to ONDCP.
Chief Kerlikowske understands the importance of partnership
between ONDCP and our State and local law enforcement because
he has been on the local level. As the head of the Major Cities
Chiefs Organization, which represents the 63 largest police
departments in the United States, he sees the current problems
facing cities across the country.
I've seen his work firsthand as the Seattle Police Chief.
This past December, under Chief Kerlikowske's leadership, the
Seattle Police Department, in cooperation with county, State,
and Federal law enforcement agencies was able to bust a drug
ring that stretched from Mexico, to Idaho, to Seattle.
Chief Kerlikowske worked cooperatively to create a regional
response to gang violence in Seattle and in King County. He
built a coalition with the King County Sheriff's Office, other
King County police chiefs, the Washington Department of
Corrections, ATF, and other community leaders to tackle
persistent gang violence in our neighborhoods. These multi-
agency Federal local partnerships require cooperation and
compromise.
They require a leader with Chief Kerlikowske's experience
to bring them together. Local police chiefs and sheriffs have
told me they are sorry to see him go, but the Nation is gaining
a true innovator in Gil Kerlikowske. I know he's going to
continue to work on these relationships with State and local
law enforcement across the country, and this approach will make
all of America's communities safer.
Mr. Chairman, I want to add in ending here that he also
understands that the drug war will not be won on the streets.
For the past 9 years, he has been the national board chairman
for the group, Fight Crime Invest in Kids. As this Committee
knows, this is a group of police chiefs, sheriffs, prosecutors,
and other law enforcement leaders who could easily be fighting
only for more cops, more jails, and longer prison sentences,
but instead, under the guidance of Gil Kerlikowske, they are
working on prevention. They are fighting for early childhood
intervention funding, after-school programs, and efforts to
prevent child abuse as an effective way to fight crime. He
knows that the best way to end the use of drugs and spread of
crime is to prevent it.
He will bring this commonsense thinking to ONDCP. He has
served the people of my State well and he's going to serve the
people of the Nation well. I'm very proud to support his
confirmation.
Chairman Leahy. Thank you. Chief Kerlikowske's concepts
were cheered in a hearing in Vermont recently, in St. Albans,
Vermont.
Senator Cantwell, you are here also to speak for Chief
Kerlikowske.
PRSENTATION OF R. GIL KERLIKOWSKI, NOMINEE TO BE DIRECTOR OF
NATIONAL DRUG CONTROL POLICY, EXECUTIVE OFFICE OF THE
PRESIDENT, BY HON. MARIA CANTWELL, A U.S. SENATOR FROM THE
STATE OF WASHINGTON
Senator Cantwell. Thank you, Mr. Chairman.
Chairman Leahy. I just wanted to show you----
[Laughter.]
Senator Cantwell. Thank you, Mr. Chairman and members of
the Committee. Thank you for holding this important hearing
today. I, too, am very pleased to be here, along with my
colleague Senator Murray, to introduce Seattle Police Chief Gil
Kerlikowske.
I urge my colleagues to swiftly confirm him for the next
Director of National Drug Control Policy. I have known Gil for
almost a decade, and in his 36 years in law enforcement he has
demonstrated that to fight drugs, we must break down the walls
between prevention, treatment, and enforcement.
One of the reasons why he was hired in Seattle was because
of his expertise in community policing. During his time as
Deputy Director of COPS, Gil launched a critical program, like
the COPS Meth Initiative and the COPS in Schools programs, and
the Tribal Resource Grant Program. As a member of the High-
Intensity Drug Trafficking Area executive board, he was a vocal
advocate for the resources needed to deal with the meth threat.
Thanks to the hard work of Gil in Washington State,
Washington State had a sharp decrease in domestic meth
production. In 2001, Washington State had more than 1,400
clandestine lab seizures; in 2008, that number plummeted to
only 26.
As Chief of the Seattle Police Department for over 8 years,
Gil has been a leader in transforming the way that we combat
crime in the 21st century. In 2004, he established a
partnership between the Seattle Police Department and Interpol
to help combat local crime with international ties, such as
human trafficking and drug smuggling operations. He will bring
this kind of comprehensive approach to his work combatting drug
crimes, working with Federal, State, local, and international
partners.
Today we face an increasingly globalized threat from drug
trafficking organizations that are going to take a new and
collaborative and comprehensive approach. This is evident
clearly in Mexico, as the stories are coming out daily.
According to the U.S. Director of National Intelligence, Mexico
is a conduit for cocaine bound for the United States and it is
the chief foreign supplier of methamphetamine to the U.S.
market.
Critical networks in Asia and Europe are supplying the
Mexican drug cartels with pseudoephedrine and other precursor
chemicals they need to mass-produce meth. Even as Federal,
State, and local law enforcement shut down meth labs across my
State and through the country, meth and other illegal drugs
continue to flow across the borders and be distributed by local
street gangs. Gil Kerlikowske knows you need a comprehensive
approach that must address both supply and demand.
The Obama administration is recognizing the need for
decisive action, and just last week the Department of Homeland
Security Secretary Napolitano announced that hundreds of
Federal agents and high-tech surveillance equipment will be
sent to the Southwest to stop the flow of drugs and guns. I
know that Gil Kerlikowske will work closely with Secretary
Napolitano, Secretary of State Clinton, and Attorney General
Holder, as well as other local officials to meet these
challenges head on.
The U.S. can make a huge difference, both at home and
abroad, and I saw this firsthand when I traveled to Colombia in
2007 with many of my Senate colleagues to see the progress that
has been made in fighting drug trafficking organizations with
the assistance of the United States. Even though Colombia still
faces serious challenges, the murder rate in Medellin is lower
than Washington, DC today.
Our experience in Colombia has shown it is going to take a
comprehensive strategy involving stakeholders at every level
and participation around the world to end the flow of drugs
that have caused such a devastating impact on our communities.
I am confident that Gil Kerlikowske will bring the
collaborative approach needed to succeed. He is the right man
for this job to be the cop on this beat, and I urge my
colleagues to quickly confirm him and send him to the floor.
I thank the Chair for this opportunity.
Chairman Leahy. Thank you very much. We have a number of
votes starting very soon and we'll probably be on the floor.
But let me ask Judge Hamilton, Ron Weich, and Chief Kerlikowske
to stand and raise their right hands.
[Whereupon, the witnesses were duly sworn.]
Chairman Leahy. Gentlemen, this is different than we
normally do. I'm going to ask all three of you to step forward
and I'll let the staff change the----
As Mr. Weich can remember, we were crowding right in here
to expedite some--the rest of the building was closed down. We
had more bipartisanship I guess at that time because
Republicans didn't object to hurrying. I guess it's only more
recently. I'm sure it has nothing to do with the change in the
presidency.
But Judge, you have members of your family here, do you
not?
Judge Hamilton. I do.
Chairman Leahy. Could you introduce them so it will be,
someday, in the Hamilton archives?
[Laughter.]
STATEMENT OF DAVID HAMILTON, NOMINEE TO BE U.S. CIRCUIT JUDGE
FOR THE SEVENTH CIRCUIT
Judge Hamilton. Thank you very much, Mr. Chairman. It's a
pleasure to be here. I'd also like to thank Senators Bayh and
Lugar for their kind words of support and many years of
friendship and support. I thank the President for his
confidence in me.
With me today are many friends and family who have traveled
here from Indiana: My wife, Inge van der Cruysse is here; my
father, Dick Hamilton; my sister, Lisa Hamilton and brother,
John Hamilton, are here. I wish that my daughters Janet and
Debbie could be here, but work and studying in the Nation of
Turkey has kept them away. And I wish my late mother, Anna Lee
Hamilton----
Also with me are my aunt, Nancy Hamilton; my cousin, Sarah
Schmidt; representatives from my wife's late husband's family
who have adopted me as an extra in-law, Pat and Russ van
Antwerpen and Kristin Gort; and also my long-term assistant,
Jenny McGinnis; and my recently retired courtroom deputy, Chuck
Bruess, are here. There are also many other friends and former
or current law clerks and staff members who have made the trip.
I'm grateful for all of them for having come here.
Chairman Leahy. Judge, while we're here, I hope you have a
chance of going to see the cherry blossoms, which has nothing
to do with your--yesterday my wife and I were there right after
6 in the morning when the sun came up, there weren't that many
people around, and just walked around there for an hour before
I came up here. It is a lovely and unique time of the year.
It's almost a cliche when people talk about cherry blossom
time, but it is a very, very nice and very good time.
Judge, I've tried a lot of cases, as have many others on
this Committee. I've also argued a lot of appellate cases, as
have many others on this Committee. We have different judges.
It's something you don't really--you can't write on a judge's
handbook about how they should react, but I remember those
judges who treated everybody who came before them with
courtesy, treated everybody the same. When you walked in, you
did not think, this is predetermined because of who I am,
because of my background and my political party, or anything
else. Can you assure us that you will be that type of judge?
Judge Hamilton. I can. And I hope that the record that I've
built up over the last 14-plus years as a District Judge
reinforces that confidence.
Chairman Leahy. Do you also understand the sense of having
to recuse one's self depending upon a case? Can you give us
some ideas of some of the things that might cause you
specifically to recuse yourself from a case?
Judge Hamilton. Well, recusing is governed by Section 455
of the Judicial Code, a statute I'm familiar with, along with
the Codes of Conduct for the Federal Courts. We go through
elaborate processes for disclosure of any financial interests
we might have and parties that might come before us, and any
kind of financial interest requires recusal. We have automatic
procedures in place in our court, and I think in most other
Federal courts, to prevent a judge from being assigned to a
party--to a case in which a party would require that judge's
recusal. So we try to minimize that as much as possible.
There are--there have been situations earlier in my career
where I had to recuse in a number of cases because of pending
litigation or ongoing legal relationships that stemmed from my
work in private practice and with State government. When I
became a District Judge I had proposed a method for dealing
with that to the Judicial Conference Committee on Codes of
Conduct. They endorsed the approach that I took, I followed it,
and now recusals are pretty few and far between.
Chairman Leahy. It's been a few years since you were in
private practice.
Judge Hamilton. Yes, sir.
Chairman Leahy. But you could have one if you had----
Judge Hamilton. There are family relationships.
Chairman Leahy [continued]. Party to--financial.
Judge Hamilton. My wife is a--my wife practices law, my
brother-in-law practices law in the Federal courts within the
Seventh Circuit, and obviously I would be recused from any case
in which they were involved.
Chairman Leahy. How many members are in the Seventh
Circuit?
Judge Hamilton. There are 11 active judge seats.
Chairman Leahy. So it's not as though the court comes to a
screeching halt if you recuse yourself.
Judge Hamilton. No.
Chairman Leahy. And would it be safe to say it's easy to
err on the side of caution in those kind of things?
Judge Hamilton. It is. I believe the Seventh Circuit also
has a similar program in the Clerk's Office where specific
parties or lawyers can be identified so a case involving those
parties' lawyers will never be assigned to the judge in the
first place.
Chairman Leahy. Unlike the District Court where you're
bound by the stare decisis not only of the Circuit, but in the
U.S. Supreme Court you only have the Supreme Court for stare
decisis. But also, of course, a Circuit Court can reverse their
own decisions.
Would you agree with me that for a Circuit Court to change
their own precedent would require a pretty significant
situation or a pretty significant shift in the law throughout
the country?
Judge Hamilton. It would have to be pretty rare. I agree
with that, Mr. Chairman. I can think of a couple of examples
recently in which the Seventh Circuit has done so, where the
Seventh Circuit had decided a particular issue under a
relatively new statute and no other circuits followed it. The
Seventh Circuit, upon--when asked to reconsider those
questions, has gone back and decided, all right, we'll come in
line with everyone else.
Chairman Leahy. But depending upon what the circumstances
were, it would reflect----
Judge Hamilton. Exactly.
Chairman Leahy [continued]. This happening in the rest of
the country.
Judge Hamilton. That, or an intervening Supreme Court
decision.
Chairman Leahy. And of course if there is a Supreme Court
decision on--it's very easy
Judge Hamilton. It is.
Chairman Leahy. Thank you.
Senator Klobuchar.
Senator Klobuchar. Thank you very much.
Welcome to all three of you. I can pronounce your name,
Chief, having known you for a while. But Judge Hamilton----
Chairman Leahy. That's going to be the new test.
[Laughter.]
Senator Klobuchar. Those ``K'' names that are long are
always difficult.
[Laughter.]
Thank you very much. I was just reading up--as I was
listening to our colleague, to Senator Specter--just about, in
fact, some of the background. When someone did look at your
whole record as opposed to picking out a few cases that they
may have disagreed with, I'm sure all of us would disagree with
individual cases that a judge--decisions a judge made here and
there.
But as Senator Specter pointed out, you presided over the
closing of approximately 8,000 cases, which I think, at the
very least, shows you're quite efficient. Of that number,
you've presided over approximately 3,000 cases that went to
verdict or judgment based on trial and/or decision you made,
with roughly 1,150 written opinions. The American Bar
Association, which did an exhaustive examination of your
credentials, your record, and your temperament, concluded that
you deserve the highest rating of Well Qualified.
It's my understanding, in response to some of the issues
raised with a case here or there, to get that rating the ABA
must find the nominee to be at the top of the legal profession,
have outstanding legal ability, breadth of experience, and the
highest reputation for integrity, and demonstrate the capacity
for sound judicial temperament.
So when the group that has done this exhaustive examination
of your record gave you the highest rating unanimously, I just
question--well, everyone has a right to question a judge's
decisions here and there, and I'm glad that our colleagues
appear to want to talk to you about these individually. I just
think that that means a lot to me to read something like that.
But I just had one or two questions. One, was I know Chief
Justice Roberts, at his confirmation hearing, talked about how
he would like to see the Supreme Court make decisions and
strive for consensus in decisions. Do you think that the U.S.
Court of Appeals should be striving for consensus as well?
You've gone from a District Court now to more of group
decisionmaking.
Judge Hamilton. I think that's one of the major changes
that I contemplate for moving from the District Court to the
Circuit Court, if the Senate was to confirm my nomination.
I'm used to making decisions on my own, with help from
staff and able law clerks, and so on, but they have to be my
decisions. At the same time, I have worked in a very collegial
court in the Southern District of Indiana, with friends and
colleagues. We don't select our colleagues; other people do
that on the court.
Senator Klobuchar. I know what that's like.
[Laughter.]
Chairman Leahy. Very good.
[Laughter.]
Senator Klobuchar. Continue on.
Judge Hamilton. We don't always agree on everything but we
work together well, we exchange our views, we make our
decisions, and we move on. I know the members who are now on
the Seventh Circuit and I would expect to be able to work with
all of them on a similar kind of basis. I hope that I'll be
able to.
Senator Klobuchar. Very good. And I want to allow my
colleagues here to ask a question or two.
One other question. You have been on the Federal bench for
about 14 years, and as Chief Judge of the Southern District of
Indiana since 2008, what are the challenges that you see for
the Federal bench? I'm new on the Judiciary Committee and I'm
looking forward to working with all of our judges on what are
the challenges you see ahead.
Judge Hamilton. Given my role, I should say first of all
you should listen to whatever the Judicial Conference says--
those are my bosses--on those sorts of issues. But from my
perspective I would say to be cautious about the expansion of
Federal jurisdiction, both criminal and civil.
We have plenty of work to do. I hope that Congress will
maintain the distinct characteristics of Federal jurisdiction
so that Federal courts can continue to play the special role
that they do in our society. I hope that the Congress will
continue to provide the adequate resources to the Judiciary as
a whole. I know that's other committees besides this one's
business, but that's going to be important.
I have to also, I think, say something about dealing with
long-term criminal justice issues and working to develop
effective punishment for the serious crimes that will protect
the public, prevent further crime, and also manage that very
difficult problem at reasonable public expense. Those would be
my highlights, but as I say, I'd better defer to my bosses on
any such administrative matters, the Judicial Conference.
Senator Klobuchar. Thank you very much.
Judge Hamilton. Thank you, Senator Klobuchar.
Chairman Leahy. Senator Kaufman, before we go to you, I
know the votes are just about to start. I wonder if I could ask
both of the nominees, for the record, to introduce their
families. It's somewhat close in here and some may have to
leave.
Mr. Weich, you want to introduce your family for the Weich
archives?
[Laughter.]
STATEMENT OF RONALD H. WEICH, NOMINEE TO BE ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGISLATIVE AFFAIRS, DEPARTMENT OF JUSTICE
Mr. Weich. I'm joined today by my wife, Joan Stewart.
Behind her are my two brothers--since I was 6 years old. They
are both real troupers today, but I'm going to say if they want
to leave----
[Laughter.]
And I'm also joined by my parents, Robert and Cecilia
Weich, who are from the Eastern Shore of Maryland, and
originally from New York. I'm also joined by some of my
colleagues, friends, and former colleagues and I appreciate all
of them being here.
Chairman Leahy. And we'll add all of their names to the
record. You have two lovely daughters. If you want to take off,
your dad's going to be Okay.
[Laughter.]
STATEMENT OF R. GIL KERLIKOWSKE, NOMINEE TO BE DIRECTOR OF
NATIONAL DRUG CONTROL POLICY, EXECTIVE OFFICE OF THE PRESIDENT
Chief Kerlikowske. Mr. Chairman, I'm joined by my partner,
my wife, Anna Laslow, who is behind me. I am also joined by a
number of friends and colleagues from my time as a Visiting
Fellow at the Justice Department under Attorney General Edwin
Meece, former Director of the National Institute of Justice,
James K. Stewart, and a number of--just a number of friends
from many years in law enforcement. So, thank you for that
opportunity to introduce them.
Chairman Leahy. Thank you.
Senator Kaufman.
Senator Kaufman. Yes. Judge, I am very impressed with your
credentials and your experience and I think we're a really
fortunate country. The country is fortunate to have you willing
to take on this additional responsibility.
For 14 years you've been on the District Court. How is that
experience, do you think, going to affect your role when you're
going to be judging appeals from your present colleagues?
Judge Hamilton. I think that my work on the District
judge--as a District judge has given me greater hands-on
insight to what goes on in District Courts, to the kinds of
decisions that have to be left to the sound discretion of the
District judge who's managing a docket, managing a trial, as
well as to those legal issues that the Court of Appeals has to
decide uniformly for the entire Circuit.
I hope it has helped me prepare to know how to read a
transcript, the proverbial ``cold transcript'' that an
appellate court must review, and to know the different kinds of
tones and scenes that the same whole transcript can actually
describe. I certainly have seen my cases go up on appeal.
Sometimes they don't always look the same on appeal as they
look to me at the District Court level, and I hope I can
appreciate that difference with my colleagues whom I respect so
much on the District Courts within the Seventh Circuit.
Senator Kaufman. You know, I'm impressed by the breadth of
the support that you've received across the whole political
spectrum. Can you talk a little about the relationship between
your kind of personal opinions, political opinions as opposed
to your opinions as a judge? I know you've had a lot of
experience with that. Could you talk about that?
Judge Hamilton. As a judge, you put your personal opinions
aside. They really don't have any place in making those
decisions. The decisions that I have to make are based upon the
Constitution and the laws of the United States. They're based
upon the interpretations of those provisions and statutes by
the Supreme Court of the United States and the Seventh Circuit,
taking advice also from other circuits, other Federal judges
and State courts dealing with the same issues. But it's not a--
the Federal judiciary is not a place for anyone to exercise
their personal opinions.
Senator Kaufman. Thank you. I think you've made pretty
clear where you stand on that.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Mr. Weich, we have--in the 1990s, Congress and the
administration the State and local law enforcement as never
before. We had the COPS program, the Byrne Justice Assistance
Grants program. The Chief is well aware of those. Now we find
kind of a double-whammy. The economic crisis of this country
cuts back funding at the same time the economic crisis sees
crime rising.
We had a Judiciary Committee hearing earlier this year and
we had police chiefs and policy experts who made clear that if
we continue to dismantle help for local law enforcement, it's
going to be a catastrophic problem.
Will you work with the Congress to help us increase Federal
funding for--not only for Federal law enforcement, but for
local law enforcement?
Mr. Weich. Yes, Mr. Chairman, I will. As you may know, at
the outset I'm a former local prosecutor myself. I worked in
the Manhattan District Attorney's Office at the beginning of my
legal career. I understand, I think, the needs of State and
local law enforcement. My work with the Congress and the
Senate, for three different members, has really impressed upon
me how strongly Senators feel about needing to assist local law
enforcement in their States. So as the Assistant Attorney
General for Legislative Affairs, if confirmed, I would
certainly work to impress upon decisionmakers, even the
administration, of the need for that kind of support.
Chairman Leahy. And also for the community-based efforts
that oftentimes are helping the Department of Justice. As the
Chief has said, and others, it's not just law enforcement that
can stop it, especially in the area of youngsters, drugs, and
so on. But the whole community has to be involved. Now, in the
past, since this Department has been helpful in those areas--
less so recently--will you work with us to bring it back to
where DOJ and our national programs can help with community
policing and community crime prevention?
Mr. Weich. I certainly will. There's a whole set of grant
programs within the Office of Justice Programs, in our COPS
office, as you say, that are, I think, really starved for
support. The stimulus bill includes new resources in those
areas, but there's more that needs to be done. I know Attorney
General Holder and the President, President Obama, are very
committed to those programs. In the role that I will play, I
would make sure that those decisionmakers are aware of how
strongly Congress feels about this.
Senator Klobuchar. Thank you very much, Mr. Chairman.
Mr. Weich, congratulations.
Mr. Weich. Thank you, Senator.
Senator Klobuchar. The Chairman touched on this a bit, and
I know you know in Minnesota we had a big problem with our U.S.
Attorney's Office in terms of a political appointment that got
fixed, actually, by Attorney General Mukasey when he came in.
But could you talk a little bit about the morale issue within
the Department? I mean, that won't be a primary responsibility.
I asked this of Attorney General Holder and others, but what do
you think needs to be done after this era that we lived through
with the Department of Justice to improve the morale?
Mr. Weich. Well, Senator Klobuchar, I'm not in the
Department yet and--so I can't speak firsthand about the state
of morale. I do know--I was in the building, in the Department
of Justice, when Attorney General Holder was sworn in the day
after his confirmation. Senator Leahy was there. And it was a
very exciting moment.
I have the impression that the career employees at
Department of Justice were very excited to see him arrive. The
career employees are really the backbone of the Department, so
everything that the new Attorney General and his team can do to
strengthen morale within the building, and if confirmed to join
the Department of Justice team, I will do what I can to make
sure that those employees and officials know how much they're
appreciated and how important their work is.
Senator Klobuchar. It's real interesting, because clearly
part of the problem was the injection of politics into the
Justice Department that made for some of the problems. Your
role is going to be as legislative liaison. I know in your
prepared remarks you talked about, that we need to have a
healthy relationship between the Justice Department and this
Committee, and how that is crucial to Federal law enforcement.
Do you want to talk a little bit about what you meant by a
``healthy relationship'' ?
Mr. Weich. Sure. I thought a lot about it in my--in my time
working for three different Senators, Senator Specter, Senator
Kennedy, and now Senator Reid, and I have the perspective of
working both on the committee and for the Democratic Leader.
Obviously the Constitution creates sort of an inherent tension
among the branches. That's what checks and balances is all
about.
But I think it's so important for leaders of the three
branches to be able to speak to each other constructively,
openly, with trust and respect, and I think I could facilitate
that, if confirmed as the Assistant Attorney General, to at
least improve and strengthen the relationship between the
legislative branch and the Justice Department. If that kind of
communication goes on, then I think the branches can work as
partners to address the problems that the American people want
to address.
Senator Klobuchar. Thank you.
Chairman Leahy. Senator Whitehouse just came in. Also, a
vote has started.
Senator Whitehouse. Well, it just started at 3:27.
Chairman Leahy. I'm going to go vote. Please continue and
I'll be right back.
Senator Klobuchar. This is my party now.
[Laughter.]
Unfortunately, half the people didn't come, but that's
Okay.
[Laughter.]
Senator Whitehouse. Thank you. I just have two questions.
The first is for Judge Hamilton. Welcome, Your Honor.
Judge Hamilton. Thank you, Senator.
Senator Whitehouse. As I understand it, you were appointed
to the U.S. District Court in 1994?
Judge Hamilton. Yes.
Senator Whitehouse. You went through a full FBI field
background check at the time?
Judge Hamilton. I did.
Senator Whitehouse. You were confirmed by the Senate?
Judge Hamilton. Yes.
Senator Whitehouse. Everybody had adequate time, if they
wished, to review your past until 1994 at that point?
Judge Hamilton. I suppose so.
Senator Whitehouse. One would suppose so, wouldn't one? For
14 years you've led a relatively public life as a member of the
U.S. District Court and as the Chief Judge of that court. Is
that correct?
Judge Hamilton. I say the work I've done is public, my life
is private, some would say monastic. But, yes.
Senator Whitehouse. Given the fact that you've been cleared
once already, the fact that your work is a matter of public
record, the fact that you're in a very public position as the
Chief Judge of the U.S. District Court in your district, can
you hazard a guess as to what of concern might not be available
to our friends on the other side that has caused them to fail
to appear for this hearing?
Judge Hamilton. Senator----
Senator Whitehouse. You're a pretty open boOkay. All you
have to do is read it, right?
Judge Hamilton. Senator, I'm glad to be here and my record
is open. I appreciate the opportunity to appear before the
Committee.
Senator Whitehouse. I appreciate it. Thank you very much,
Your Honor.
I will--Chief Kerlikowske, we've spoken before on this
subject so I won't make you go through this again. But I would
like, with the Chairman's permission and with unanimous
consent, to make a request for the record that you respond on
the issue of the Drug Enforcement Administration interference
with e-prescribing and with the reforms that the President has
promised in the area of electronic health records by virtue of
insisting on a paper system being maintained by doctors for
controlled pharmaceuticals, even if they have gone to an
electronic prescribing system, which is obviously much more
efficient for other pharmaceuticals.
I'd like to express for the record, as a former Attorney
General and as a former U.S. Attorney, my very strong belief
that an electronic system would actually be a very positive
development for law enforcement and a very useful tool for law
enforcement in looking at drug diversion offenses, and the DEA
would actually be far stronger and more effective in dealing
with the increasing issue of drug diversion if they would get
out of the way and allow us to move to electronic prescribing
and allow reasonable regulations to go forward that would
support that transition. If you would take that question for
the record, I'd appreciate it. If you have any comment you'd
like to make now, I'd be glad to hear it, but I'll put the
question for the record.
Chief Kerlikowske. Senator, I just would like to tell you
that I very much appreciate you and your staff explaining the
details of that issue and, if I am confirmed, it will be one of
the issues that I will certainly get very much more involved
with and work more closely. An improved health care system is
something close to everyone's heart, and an improved law
enforcement system is also. So, you can rest assured that I
will do that.
Senator Whitehouse. I appreciate it. I thought in the last
administration that we had to introduce the head of the Drug
Enforcement Administration to the head of the Department of
Health and Human Services and remind them that they worked for
the same President and wondered why they weren't going in the
same direction. It wasn't very successful, but it provided for
an excellent hearing in the committee that I was then chairing.
[Laughter.]
Thank you very much. I thank the Chair. I will excuse
myself to vote.
Senator Klobuchar. Senator Kaufman.
Senator Kaufman. Yes.
Mr. Weich, I can't think of anybody coming to your position
with better experience for what you're going to be doing.
Mr. Weich. Thank you, Senator.
Senator Kaufman. You're one of the few I've ever seen that
has bipartisan experience in the Senate, which is kind of
unusual. So I think--plus your knowledge and experience you
had.
Can you just talk for a few minutes about kind of how you
see your role in terms of dealing with the Congress for the
Justice Department? And by the way, the final thing I want to
say is how fortunate the Attorney General is in having you
nominated to help him with his job.
Can you talk a little bit about your role in kind of
dealing between the Congress and the Justice Department?
Mr. Weich. Well, thank you, Senator Kaufman. I do see the
role of the Assistant Attorney General for Legislative Affairs
as being kind of a translator, if you will, between the
branches. And it's a two-way street. That is to say, I think
the Assistant Attorney General has to represent the interests
of the Department before Congress and explain in advance
legislative initiatives and other policies, but at the same
time I see the role as communicating to the Justice Department
the views of the Congress. These worlds are sometimes too
separate, and the more that I can do to bridge the gap and make
sure that both--leaders in both branches understand what the
other branch is thinking, I think the better the product will
be, both legislation and the policies of the Department.
Senator Kaufman. Chief Kerlikowske, I mean, again, this is
a great panel. I think everyone here is extremely well-
qualified for what they're doing and I think we're really
fortunate you're willing to come here and take on what is
without a doubt one of the widest ranging jobs in the U.S.
Government.
Can you kind of talk--all these different things that
you're doing, kind of what your priorities are in your new
position?
Chief Kerlikowske. Thank you, Senator. I don't think many
people outside government and out in the field--and I've spent
my whole life out in State and local law enforcement--
understand the wide array of responsibilities that the
Director's position holds and the amount of authority that it
holds over--over the budget, that setting a national drug
strategy for the President of the United States is by far the
most important task of the role.
But then when I look at the other priorities, clearly
breaking down the silos and--I think instead of the--Senator
Murray mentioned that, this isn't an either/or; it isn't about
treatment or about law enforcement, it isn't about source
country eradication or about rehabilitation and recovery.
Particularly in these incredibly difficult economic times,
having people work together--and I always listen to them very
carefully, and was listening carefully when Senator Whitehouse
mentioned about everybody fully together in the same direction.
I think my background and experience in that area can help
to break down some of these things so that we don't try and
either arrest our way out of a problem or we don't realize that
the criminal justice system is, in fact, a significant player
in bringing people back into recovery and back into
mainstream----
Senator Kaufman. Thank you. Again, I'm going to go vote--
willing to take on these responsibilities. Thank you.
Judge Hamilton. Thank you, Senator Kaufman.
Senator Klobuchar. Chief, when we visited in my office we
talked about drug courts and about how we both had experience
with drug courts. I had the experience of a drug court, but its
jurisdiction, I thought, was too broad in that it included gun
cases and all kinds of things. The joke with the cops was, if
you had a gun with you, you'd better hope you have drugs
because then you could go to the drug court. And we changed
that, actually, and as a result there was more support with law
enforcement. Yet, it still took care of so many of our low-
level drug offenses. Could you talk about your view of drug
courts and how that would fit in nationally with what you want
to do with your job?
Chief Kerlikowske. I can, Senator. Clearly the drug court
movement in this country--and I was fortunate to have been
involved with Attorney General Reno when she persevered when
moving that forward--first drug courts in the country, and I've
been very fortunate to have officers assigned full-time to the
drug court in Seattle.
Having gone to drug court graduations in several cities, I
can't think of a more worthwhile experience, not just for a
police chief or a sheriff, but also for a citizen to see people
under the auspices of the right judges who are making sure that
these people not only pay their debt back to society, but when
they return back into society they return as productive,
taxpaying citizens. I'm a big fan.
Senator Klobuchar. Okay. Very good. Well, thank you.
I have to go vote, so I'll turn this back to Chairman
Leahy.
Chairman Leahy. Thank you.
Senator Klobuchar. I had memorized all your key cases,
Judge Hamilton, last night for my moment when Chairman Leahy
was going to leave, but there was no one to tango with.
[Laughter.]
Chairman Leahy. I haven't memorized anything.
Senator Schumer.
Senator Schumer. Mr. Chairman, you don't have to memorize
anything, you're the Chairman.
[Laughter.]
Chairman Leahy. Very recent rumors----
Senator Schumer. Anyway, first, I want to thank you for
holding this hearing, Mr. Chairman.
First, about Ron Weich, I've worked with him very closely
over the last several years, so has my staff, and I think we
all can say without reservation he's the right person for the
position of Assistant Attorney General for the Office of
Legislative Affairs. I say with pride, he's a son of the Bronx,
a product of the New York City--in Brooklyn, being from the
Bronx is almost as good.
[Laughter.]
He's a product of the New York City public school system.
Word of his nomination made it back home. There's a glowing
letter of recommendation in his record from a legendary
District Attorney of Manhattan, Bob Morgenthau, another special
narcotics--from the Special Narcotics Office for New York,
Bridgett Brennon, and they have seen, as I think we all have,
Mr. Weich's professionalism, legal skill, and commitment to
justice.
Judge Hamilton, your record on the bench speaks for itself.
I look forward to seeing you continue that success on the
Seventh Circuit. And to Chief Kerlikowske, who I have also
known for many years, particularly in your past life as
Commissioner of the Police Department of Buffalo.
Judging from your experience, it's clear to me that you're
the right person to lead ONDCP now. We've worked closely
together. In fact, some of the ideas that I brought down here
legislatively were ideas that Chief Kerlikowske had been
formulating and working out in Buffalo, did a fabulous job. He
knows--Gil Kerlikowske knows, Chief Kerlikowske knows that drug
problems aren't limited to New York City, Chicago, or Los
Angeles. They're real, they're close to home, and they're
everywhere.
So with the Chairman's permission, I'd just like to ask you
a couple of questions which we had talked about, Chief, that
are of great concern to me.
First, about cartels and gangs in Buffalo. A recent Justice
Department report found that ``Mexican drug trafficking
organizations maintain drug distribution networks or supply
drugs to distributors in at least 230 cities.''
Now, two of those cities listed were Albany, New York and
Buffalo, New York. The DOJ explicitly, specifically identified
the Gulf Coast cartel, one of Mexico's most notorious cartels,
as having connections in Buffalo, and there's the related
problem of violent street gangs making their way into the area.
Just a few weeks ago, we saw a takedown of 28 members of the
Bloods street gang in Niagara County, a county right to the
north of Erie County, in which Buffalo is.
All of this leads to the question of whether there are
enough resources to tackle the problem. So my first question to
you is, can you commit to dedicating specific attention and
resources to drug trafficking--to fighting drug trafficking
organizations in places like Buffalo and Albany, and then what
specific actions might you take?
Chief Kerlikowske. Thank you, Senator, very much. The
experience in Buffalo was one that was particularly close to my
heart. The first year I was there, we had the highest number of
homicides ever in the history of the city, a very troubling
time. Then to be able to leave 5 years later with a 38 percent
reduction in crime, all that the men and women of that
department did, I was impressed.
I can commit to you in a number of ways that I will work
very hard to make sure that the appropriate resources, if I am
confirmed to this position, will be put onto the front lines as
there are not only a number of HIDTAS in northwest, but having
experienced how important HIDTAs are at bringing State, local,
and Federal law enforcement together with Federal prosecutors.
Those are particularly important issues to me. Also making sure
that we all understand that we can't sever out particular
things, a drug trafficking organization versus a violent crime
organization. They are so interconnected, that we need to keep
those things in mind.
The last thing I would mention to you, Senator, is that
when I talk to all of my colleagues, whether it's the chief in
Minneapolis or at the farthest northern parts of our country,
we know that the Southwest border doesn't stop at Texas or
Arizona.
Senator Schumer. Right. Good.
So you will commit to helping bring the resources needed to
deal with these problems in Buffalo and Albany in particular?
Mr. Weich. If I'm confirmed, I'll do everything possible to
do that, Senator.
Senator Schumer. Right. Okay.
The next one is a little bit related. We talked about this
at our meeting, too. We're having an explosion of hydroponic
marijuana coming down across New York's northern border from
Canada. I don't know if this is affecting your State as well,
Mr. Chairman; it may well.
Chairman Leahy. Yes.
Senator Schumer. Last November and December, we saw two
major drug busts in border counties. They involved 20 suspects,
millions of dollars of drugs, all smuggled through the northern
border.
So my question to you is, why wouldn't expanding the HIDTA
designation to New York's four northern counties--as you know,
we worked, when you were a police chief, on bringing HIDTA to
upstate New York, which we did and it's been a great success.
But it's in counties like Erie and Albany County, but it isn't
in the four northern border counties. Wouldn't expanding HIDTA
be a good response, not only for New York but for the whole
country, since this is a gateway by which marijuana is smuggled
in, and particularly the fact we've had problems at the Indian
reservation there?
Chief Kerlikowske. Senator, I think we've seen great
success with HIDTAs. If I'm confirmed in this role, I can tell
you that I will look very carefully to make sure that, as the
definition of the HIDTAs are, for those High-Intensity Drug
Trafficking Areas, that those finite resources in that
collaboration are pot into the places in which we're seeing the
most transshipment of drugs, the most dangerous drug
trafficking organizations, and I will certainly commit now to
that.
Senator Schumer. Taking a real careful look?
Chief Kerlikowske. Yes, sir.
Senator Schumer. Okay. I think when you look at it, you're
going to find that they belong in HIDTA.
One other thing about this issue, and then I have one more
question. We're always worried, Senator Leahy, myself, others
who are on the northern border, that the southern border gets
all the attention and we don't have enough resources. Will you
make sure that no resources are diverted from the needed
northern border activities to go to other parts of the country?
Chief Kerlikowske. Senator, one of the most important
things I'll be doing is--if I am confirmed in this role, will
be to work very quickly with all of those other Federal
counterparts: Border Patrol, Customs & Border folks, et cetera.
Senator Schumer. Right.
Chief Kerlikowske. To make sure that I'm doing my job, my
role as convener, as a collaborator, and making sure that the
President's policy is carried out. And clearly, I know from my
experience in Seattle and my experience in Buffalo, that
transshipment across the Canadian border of drugs, and of
course the smuggling of other things, are very important issues
not only to the Federal law enforcement colleagues, but
certainly to the effect that they have on our communities. So,
yes.
Senator Schumer. Good. Thank you.
And one final one. This is about another crime problem we
have in upstate New York. This is meth, crystal meth, in the
southern tier. The number of meth labs in New York has been
decreasing. That's good. We've had great help from law
enforcement. We've all focused on this. There's still a problem
of meth use. This is a different problem than manufacturing or
trafficking, but use in New York's southern tier. And you know,
once these people become addicted to meth it's really hard to
break.
Will you focus on both existing programs and new programs
as Drug Czar to help us cut down on meth use in the less
densely populated areas of the country, like New York's
southern tier?
Chief Kerlikowske. Senator, I think there's a general
feeling among many in law enforcement that the Federal
Government was slow off the mark to recognize the problem of
meth, and even though it still ranks on a national scale at a
fairly low level, we know that in particular pockets of this
country it has been an absolutely devastating drug.
If I'm confirmed, I'd like to see an ONDCP that's more
flexible, that's able to move much more quickly on emerging
drug threats, and that the important part of people that have
become addicted, particularly, as you mentioned, the difficulty
of getting someone off the addiction of methamphetamine, that
the treatment issues and the rehabilitation issues are given as
much of a priority as the enforcement issues.
Senator Schumer. Mr. Chairman, thank you. And I thank all
three of our nominees here and I think they're a great group.
Chairman Leahy. Thank you.
Judge Hamilton. Thank you.
Mr. Weich. Thank you.
Chief Kerlikowske. Thank you.
Chairman Leahy. Judge Hamilton, I know when Senator Specter
was here he mentioned some of your cases. He did say he didn't
necessarily disagree. But one was Dole v. Prosecutor, Marion
County and Henrichs v. Bozeman, and Women's Clinic v. Neiman.
Do you have any of the cases that have been mentioned here that
you want to say anything about?
Judge Hamilton. Thank you, Mr. Chairman. I appreciate the
opportunity to address those concerns. The cases are all very
familiar, too. I could probably talk about them a long time,
but I'll try to be relatively brief.
First, let me say with respect to the case of Dole v.
Prosecutor, I believe that there may be some misimpressions
about that decision. Indiana has a statute that requires sex
and violent offenders to register periodically with law
enforcement where they live, and work, and go to school.
In 2008, the Indiana legislature tightened some of those
requirements. It added, for example, requirements that sex and
violent offenders register with the State e-mail addresses and
user names that they use in chat rooms. There has been no
controversy about those provisions or the original sex offender
registration provisions at all. None of those provisions were
part of that case.
The one provision that was at issue in that case was a new
requirement requiring sex offenders and violent offenders who
had already completed all aspects of their criminal justice
sentences, not only their prison sentences but also court
supervision in the form of probation, parole, or supervised
release, to consent to search of their computers and homes at
any time without a warrant, without any individualized
suspicion.
In a fairly lengthy opinion I explained why I thought, as
applied to those offenders who had already completed their full
sentences and who were no longer under supervision, a
requirement that they be vulnerable to searches of their homes
and computers at any time, without a warrant, is contrary to
the Fourth Amendment. There was no appeal, I should add, from
that decision. The State of Indiana has accepted that decision.
There was no appeal.
If I could speak briefly about the case of Bozeman v.
Henrichs, I did not hold that legislative prayer was
unconstitutional. What I held was that, on the facts presented
to me, systematically and pervasively, sectarian prayers from
the official podium of the House of Representatives did violate
the establishment clause. What I did, was apply the principles
that the Supreme Court had embraced in a case called March v.
Chambers, the Supreme Court's venture into the issue of
legislative prayer.
My decision on the merits was consistent with other
appellate courts, both in the Federal and State court systems
that have dealt with similar practices of persistently
sectarian prayer in an official forum. I certainly hope that
the decision is not interpreted at all as limiting anyone's
free exercise of religion, nor is favoring any one religion
over another. The whole idea of the establishment clause is
that government stays neutral in matters of religion.
As Senator Specter pointed out, the decision was reversed
ultimately on appeal on the issue of standing. The case came
before me with several taxpayers objecting to the use of their
tax money to support this practice. I applied the laws of
taxpayer standing under the establishment clause as it existed
at the time under then-controlling precedents the Supreme Court
had----
Chairman Leahy. This was before Hine v. Freedom.
Judge Hamilton. Precisely. When the case first went to the
Seventh Circuit, the Seventh Circuit, in an opinion written by
Judge Ripple, whose retirement created the opening here, Judge
Ripple and the panel wrote an opinion, saying, in essence, that
I had decided the standing issue and the merits issues
correctly and they left my injunction in place pending the
appeal.
While that appeal was pending, the Supreme Court decided
the issue of Hine v. Freedom From Religion Foundation, which
reshaped in ways that I think still remain to be worked out,
the doctrine of taxpayer standing under the establishment
clause, and that panel divided 2:1 on how to apply Hine
standing issue there.
Chairman Leahy. And you did not have Hine as stare decisis
in any form at the time you made your decision?
Judge Hamilton. I did not. I applied the controlling
precedents in place at the time. With respect to the Newman
decision, what I was doing was applying the principles adopted
by the plurality opinion, the controlling plurality opinion in
Casey v. Southeastern Pennsylvania. And I think it was clear
that the Casey opinion left open the potential for a challenge
to waiting period and informed consent laws after there was
some experience with those laws.
So there was an invitation, in essence, to parties who
opposed such laws to develop that evidence and bring it before
an appropriate court. I wound up being the court where that
evidence was presented. I examined it carefully. I heard
mention of the fact that the case took some time to decide. I
would add that the case was brought in 1995.
I issued a preliminary injunction against enforcement of
the statute in the fall of 1995. The State did not appeal that
decision. Instead, the case was diverted to the State courts to
resolve some issues of State law. When it came back to Federal
court, I modified the preliminary injunction accordingly. There
was, again, no appeal in the preliminary injunction. My
recollection is that then the parties engaged in a fairly
elaborate and lengthy process of discovery that involved
complex statistical evidence.
Professors from several universities were brought in to
examine the statistics. My recollection is that I scheduled the
trial when the parties told me they were ready, after they had
ample opportunity to study the experience in other States of
similar laws. I held the trial, accepted additional evidence
that the parties wanted to submit afterwards, as well as
elaborate briefs, and decided, I think, with appropriate
speed----
Chairman Leahy. That was the parties on both sides? That
was the parties on both sides?
Judge Hamilton. It was. That's my recollection, Senator.
Chairman Leahy. Well, do you have any other----
Senator Schumer. Yes. I just--no, I just wanted to make a
comment, Mr. Chairman. I regret that our colleagues are not
participating here. It doesn't bode well for moving and filling
vacancies on the bench. You--when they were in the majority,
Mr. Chairman, you led us. And we asked a lot of questions, we
opposed certain nominees, but we never boycotted.
A first nominee who is supported by the Republican Senator
from his home State, who is known from--you know, in
jurisprudence as a moderate, supported by a member of the
Federalist Society, I just find it--I just have to say it's
just regrettable and I want to apologize to you, Judge
Hamilton. The questions that you should be asked by some who
might--maybe they don't have any difficult questions to ask
you, or they think they can't get you on asking questions so
they don't come. But I just find this--let's put it like this.
I think they're off to a bad start.
Chairman Leahy. Well, you know, I won't question anybody's
motives. I am--statistics. I would note that when the Democrats
were in charge we moved more of President Bush's nominees,
faster, than when the Republicans were in charge, to try and
demonstrate that we wouldn't be partisan. I hope they're not
going to be partisan on this.
We're not going to hold this hearing--it's going to be
slightly over 3 weeks before we have a mark-up on this, so
it'll be the first Thursday when we come back. I'll keep the
record open until the end of this week. Any one of you can add
to it, but you have to sit here. Certainly anybody can ask any
questions. I've been here longer--in the Senate longer than any
member of this Committee. We've had several long--ones but I've
never known a time, whether somebody was for or again, that
needed more than 3 weeks to get the answers to my questions.
We'll stand in recess. I congratulate you all, and I thank
you all for being willing to answer your Nation's call in this
way. Each one of you has answered the--call before and I
appreciate you doing it again.
[Whereupon, at 4 p.m., the hearing was adjourned.]
[The Questionnaire and questions and answers and
submissions for the record follow.]