Panel II of a Hearing of the Senate Committee on the Judiciary - Nomination of Michael Mukasey to be Attorney General of the United States

Statement

Panel II of a Hearing of the Senate Committee on the Judiciary - Nomination of Michael Mukasey to be Attorney General of the United States

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SEN. JOHN CORNYN (R-TX): Judge Mukasey, as I told you when we met privately, I was not familiar with your name or your reputation until I first saw that Senator Schumer had suggested you might possibly be a good nominee to the United States Supreme Court by President Bush. But I have to tell you that since I've become better acquainted with your record of public service and your professionalism, I've grown in admiration of your fine record, and I congratulate you on the -- on this nomination.

MR. MUKASEY: Thank you.

SEN. SCHUMER: Ye of little faith! (Soft laughter.)

SEN. CORNYN: I have to tell you I was also profoundly struck when you started your comments this morning and said, "It's not about me." What a refreshing point of view here in Washington, D.C. I do believe you when you say that. And you believe it's about serving your country, and I respect that.

And I want to just tell you that as I was reading through some of the things that you've written, I was, as a member of a -- what we call in the Congress -- we call the Recovering Judge Caucus -- we have a small group of former judges who now serve in Congress -- I admired your choice of Learned Hand in one of the articles that you wrote about the spirit of liberty and his comment -- famous comments in that speech that the spirit which is not too sure that it's right is one that we ought to emulate.

But you were talking in this article, in this speech about the Patriot Act, an -- a statute which -- you said that before attacking the Patriot Act, the critics ought to read it, and where you noted that it had become the focus of a good deal of hysteria, some of it reflexive, much of it, you said, recreational.

And I was reminded once again that your experience in the court of law, my experience and those of us who practiced in a court of law -- the standard for proof in the court of law is substantially more rigorous than it is in the court of public opinion, and particularly in hearings before Congress, even though witnesses take the oath, things that are said that probably wouldn't be admitted in evidence in a court of law.

But the one thing that I wanted to ask you about here is, you point out that the Patriot Act broke down the wall between intelligence gathering and law enforcement, and said that the previous decision establishing that wall, preventing the sharing of information, had been a stark misreading of the law. And I wanted to ask you about -- why do you believe that there's been an apparent inability to communicate to the American people in widely acceptable terms the difference between a criminal law paradigm and fighting a war on terror and dealing with a military paradigm?

MR. MUKASEY: I can't say as I sit here that I know why there's been a failure to communicate that. I think that it is very important for government generally to make the case to its citizens for what it does, not just to do things that promote their welfare but make the case. I'm a lawyer, and so I'm the sort of person who's trained to make the case. And I'd like, if I'm confirmed, the opportunity to go out and do that. I mean, I don't mean I'm just going to go off on some speechifying tour. But it's one of the things that I take very seriously, and that is the need to make the case for the importance of what we do and for the fact that we do it within the law. We don't just do it willy-nilly; we do it with due regard for the real interests that are at stake.

SEN. CORNYN: And of course in a criminal law context, usually, almost always you're punishing an act after the -- after it occurred. And obviously the goal of our intelligence gathering and fighting a war is to prevent terrorist attacks from occurring.

But there's one other example I wanted to ask you about. In your experience trying the 1993 World Trade Center bombing case, did it occur that a list of some 200 unindicted co-conspirators was turned over to the defense --

MR. MUKASEY: Yes.

SEN. CORNYN: -- and ultimately found its way in the hands of -- well, found its way to Sudan, I believe, in the hands of others who subscribe to the same views on jihadism that the defendants in that case did? Is that maybe another example why the criminal law paradigm is not always the best approach?

MR. MUKASEY: The law of unintended consequences operates there as it does in a lot of other places. That list had to be served under the law, and it showed up -- we found out long afterwards, but it showed up in Khartoum in the hands of Osama bin Laden, who happened, as it was -- as it happens, to have been on that list. And it told him who was on that list, that he was included and who we knew about was working with him.

SEN. CORNYN: Let me pivot quickly here, since time is short, to the reporters' shield law that has been proposed to Congress. There's a lot of things members of this committee agree on. The chairman and I have been working closely together on reform of the Freedom of Information laws, first time in a generation, and I trust we'll be working with the Department of Justice on that when you are confirmed.

But the shield law that's been proposed has a provision that provides a qualified privilege to covered persons. What I expressed a concern about -- and Senator Durbin and Senator Feinstein also voiced some concerns -- I'll let them speak for themselves -- but my concern is that the definition is so broad that would cover virtually anyone who decides to publish information.

For example, consider a young jihad enthusiast who uses the Internet to spread Osama bin Laden's message. The blogger posts an English translation of a scholarly treatise advocating violent jihad and lists hundreds of links to secret websites where his readers can obtain the latest insurgent videos from Iraq. As you may note, Judge, this is not a hypothetical situation. This is a case of a 21-year-old American who writes his blog from his parents' home in North Carolina. The New York Times reported this story on Monday in an article entitled, "An Internet Jihad Aims at U.S. Viewers."

My concern is that if we pass a reporters' shield law -- which I voted for out of committee but with the caveat that I'm concerned about the breadth of that definition providing a qualified privilege to anyone who holds themselves out as a journalist. Do you have concerns about the breadth of that definition as well, and how it would actually impact your ability to do your job?

MR. MUKASEY: That's one, but only one, of my concerns.

SEN. CORNYN: And would you care to share with us your other concerns?

MR. MUKASEY: Sure. Even if you narrow the definition to include people who are reporters for a living, I can recall when I was a college journalist of sorts meeting a TASS reporter, a reporter for the then-Soviet News Agency TASS.

And it was very clear at the time that many or most TASS reporters were in fact KGB agents who were working full-time as reporters but indeed were doing a lot of other things.

I can't help but believe that the same is true of many reporters for Xinhua -- I don't know that for a fact; it's just a belief based on my own experience -- and that it would not be above the capability of someone involved in a terrorist organization to become a journalist or to have a whole superstructure erected around her or him that allowed them to present themselves as a journalist, somebody earning a full-time -- living as a journalist and still be someone that would be protected by the law. So that's one concern.

Another concern has to do with the kind of proof that has to be presented in order to overcome the shield law -- proof of danger to the country, which sometimes is an imponderable, hard to prove in advance. The example of that list of unindicted co-conspirators is only one example, but it's a good one. Nobody could have proved in advance that turning that over was going to be dangerous, but you can prove it in retrospect. And I don't want to have to look at retrospect, for I'm uneasy about that, too.

SEN. CORNYN: Let me ask you, in the short time I have remaining -- you're no doubt familiar with a Project Exile, which focused on gun crimes and prosecuting gun crimes under the federal laws with mandatory minimums for carrying -- felons and others carrying guns illegally and going after the gun crime as a discrete offense in punishing that in addition to whatever other crimes were being committed. That federal program gave rise to something in my state when I was attorney general -- we called it Texas Exile, which is a very successful collaboration between federal, state and local law enforcement officials to persuade criminals to leave their guns at home by letting them know that there would be a significant and meaningful punishment -- meaning imprisonment -- if they used the gun in the commission of a crime.

I wanted to commend to you the Project Safe Neighborhoods follow- on, which is now a substantial program within the Department of Justice and ask your -- for your support, or at least your willingness to work with Congress to try to make sure that we continue to prosecute gun crimes vigorously and thereby, I believe, reduce a lot of the violence associated with gang activities, drug transactions and hopefully in the process save some lives. And I'm -- do you -- will you give me that commitment to work with us on that?

MR. MUKASEY: I sure will.

SEN. CORNYN: Thank you.

Let me give you one quick caveat in the second one minute I have left. There is sort of an anomaly, and this gave -- this came to light in the case, the prosecution of two Border Patrol agents who shot a drug dealer in -- along the border in my state, in Texas. And because they discharged a firearm in the course of their -- of the activities for which they were convicted, they received an automatic minimum 10-year plus-up to their prison sentence.

And I'm not sure -- I know there was some conversation about this when Congress passed these laws, how they would apply to a law enforcement officer who has no discretion but to carry a firearm in the course of their duties and how it might disproportionately impact that law enforcement officer.

I just ask here today simply whether you would agree to work with us, the Judiciary Committee, to look at that to see whether we ought to revisit it and to whether it does unfairly impact law enforcement officials who might -- who do have to carry and sometimes discharge their firearms in the course of their lawful duties.

MR. MUKASEY: That was a very difficult case, and I will.

SEN. CORNYN: Thank you very much. Thank you, Mr. Chairman.

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