Hearing of the Senate Judiciary Committee Morning Session - Continuation of Executive Nomination of Michael Mukasey to be Attorney General of the U.S.

Statement

Hearing of the Senate Judiciary Committee Morning Session - Continuation of Executive Nomination of Michael Mukasey to be Attorney General of the United States

BREAK IN TRANSCRIPT

SEN. GRASSLEY: Thank you.

Judge, I have one question about whistle-blowers before I go back to where we left off yesterday, and we left off about that non- disclosure form. But why I emphasized, as I hope I told you in the privacy of our office, the need to worry about whistle-blowers is because -- you probably know this, but if you don't, you'll soon find it out -- that there's a great deal of peer pressure to go along to get along within government bureaucracy -- and I don't mean just Justice, I mean government generally, and I mean all levels of government. Whistle-blowers tend to be skunks at a picnic and are treated the same way, and we have laws that protect them. And I want to make sure that at least within your jurisdiction you do what you can.

So what initial actions would you personally take to abate any fears of retaliation against individuals who are critical of procedures, practices or policies that do not guarantee or execute the primary mission or goals of FBI within the Justice Department or the entire Justice Department?

MR. MUKASEY: I think I will tell people specifically and I will tell them in action that I am receptive to and supportive of anyone who can disclose any impropriety, whether it's in the way rules are applied or in the rules themselves, and who can help the government stop impropriety and stop waste. Making that explicit and then acting on it, I think, is the only two ways to do it.

SEN. GRASSLEY: I think you're very sincere, but let me tell you one time I said to the president, you know -- this president -- that you ought to have a Rose Garden ceremony honoring whistle-blowers because for the most part they're patriotic people, just want government to do what government is supposed to do, and point out things that are wrong. And I got some sort of a comment back about if he did that, every nut would come out of the woodwork, you know.

So with that sort of an attitude at the highest level of government, you know, it's very important that people a little lower down, as you are -- not very low down, but somewhat lower -- make sure that the spirit of the law is carried out as well as the law.

Where I left off last week, I've learned that the FBI and the Justice Department Office of Inspector General have been using an overly broad nondisclosure form during administrative inquiries. This issue came to light recently in the course of the OIG's investigation into the FBI's misuse of national security letters. This form broadly states that no information may be, quote-unquote, "released in any form to anyone," and indicates that if any portion of the information is released, quote-unquote, "beyond this room," then further investigation could result.

This is not a threat to be taken lightly coming from the FBI particularly, but also from the Justice Department OIG. While nondisclosure agreements may be necessary and an important part of an internal investigation, executive branch employees must remain free to provide information to Congress.

Section 820 of the Appropriations Act for the Department of Justice prohibits any nondisclosure policy, form or agreement that does not contain specific disclaimers ensuring that Congress is not cut off from crucial information. I'd like to have a copy of that statement put in the record, that nondisclosure statement put in the record at this point, Mr. Chairman. As you can see, it's plain that the form does not contain the disclaimers required under Section 820. As you know, the Justice Department's budget was authorized for fiscal year 2007 under a continuing resolution, so Section 820 remains in effect. But according to the inspector general, the FBI has been routinely using this broad nondisclosure form during administrative (hearings ?).

One, if you're confirmed as attorney general, will you conduct a review of nondisclosure agreements used by the Justice Department and subordinate agencies and ensure their compliance with 820 of the Appropriations Act of the Department of Justice, as well as other appropriation acts in the future that might have similar provisions? And I guess it seems to me that without this disclaimer, it's kind of a thumbing the nose attitude towards the Congress; I mean, like there's no respect for the law we passed.

MR. MUKASEY: Senator, part of the concern for the integrity of national security that I've had occasion to express this morning because I've been asked about it -- the only way we respect legitimate claims about national security is if we don't promiscuously attach the phrase "national security" to anything that we'd rather not discuss, that we'd rather not have other people discuss. And so I think we have to be very careful in rationalizing nondisclosure obligations based on a claim, "Oh, this is national security."

And I also obviously believe, as I've said, that the oversight authority of this committee is enormously important in helping the department fulfill its role. So for those two reasons, I would be very, very critical of nondisclosure agreements and make sure that they're used only when it's necessary for them to be used and not simply as an everyday way of doing business.

SEN. GRASSLEY: Well, I should accept your answer. It seems to me, though, that that information ought to be -- about Section 820 ought to be broadly reminded of everybody as part of a document.

Let's go to the Office of Inspector General. As I've said so many times, oversight's very important. You can't do it in Congress if we don't get some help. We obviously need in this regard a strong inspector general to provide another independent assessment of operations within the executive branch.

One, do you agree that independence is a hallmark of the inspector general's integrity and effectiveness?

MR. MUKASEY: I do.

SEN. GRASSLEY: Please explain what kind of relationship you would intend to have with the Justice Department inspector general, Glenn Fine, assuming he stays on in that position, and describe -- or, I mean, whoever might succeed him -- and describe what steps you will take to ensure that his office will function as an aggressive and independent check on the department and its components.

And I speak here particularly of the FBI, and I'll get into something in just a minute on that, but not just the FBI.

MR. MUKASEY: I hope to have a cordial and effective relationship with him as I would with any other officer in the department. And he is a person -- he in particular is a person of great experience. He's been at this for a long time. And his views get a lot of respect, and they're entitled to a lot of respect, and they're going to get a lot of respect from me.

SEN. SPECTER: Earlier this year the Office of Inspector General released an important report on the FBI's misuse of so-called exigent letters and National Security Letters. Some of the findings suggested that more inquiry was necessary in determining whether officials had knowingly approved FBI information requests containing false statements or improperly characterizing requests as emergencies to obtain records without legal process.

At first the OIG was going to merely allow the FBI to investigate itself. However, after this committee had a hearing, the OIG decided to conduct further investigation jointly with the FBI Inspection Division. While this is better than having no role for the inspector general, it seems that allowing the FBI to actively participate in an investigation of its own potential wrongdoing could be -- could undermine the credibility and public confidence in the final product by providing an opportunity for the FBI insiders to tamper with the investigation.

One, do you believe conducting joint investigations with the entity under investigation is consistent with the principle of inspector general independence?

MR. MUKASEY: I agree that having an agency investigate itself is generally not the optimum way to proceed. The one fact, as I understand it, that gives me pause here is that I believe that one of the preliminary conclusions that -- among the preliminary conclusions reached by the inspector general in his first report -- and I understand this is still under -- this matter is still under investigation, but a preliminary conclusion was that there were no controls in place, there was no monitoring in place, and that that was in part what led to the abuse; where a form that originated in one place where there were grand juries sitting was then sent around and nobody bothered to read the form, they used it and told people that they were to produce information for use by a grand jury when there was no grand jury -- which is inexcusable, I agree. But that what happened was that when they saw that report, the FBI did, as I understand it, put controls in place and monitoring in place.

And I think that given that that's been the response, that we ought to at least give those controls and that monitoring an opportunity to operate, and so their participation in the ongoing investigation is not perhaps as inappropriate as might at first seem.

SEN. GRASSLEY: Okay. Well, I hope you're right, but I hope also you'll try to do as much as you can having the inspector general just by himself do that work.

Mr. Chairman, I don't think I'll be back for a third round. And I'll submit some questions on agricultural antitrust and things of that nature that I'd appreciate some answers for.

Thank you.

BREAK IN TRANSCRIPT

Source