Hearing of the Senate Judiciary Committee - Nomination of Mark Filip to be Deputy Attorney General

Statement

Hearing of the Senate Judiciary Committee - Nomination of Mark Filip to be Deputy Attorney General

BREAK IN TRANSCRIPT

SEN. RICHARD DURBIN (D-IL): Just very briefly, and I apologize for not being here, Judge Filip, when you were initially introduced, and I welcome you and your family coming here today.

Mr. Chairman, it was my good fortune several years ago when Senator Peter Fitzgerald nominated Mark Filip to the federal bench, to meet him and to support his nomination. He squeaked by the United States Senate with a confirmation vote of 96 to nothing, and I have to tell you that his three years on the federal bench in Chicago have confirmed the feelings of the Senate that you were ready for that job.

In the Almanac of the Federal Judiciary, there were comments, anonymous comments by Chicago attorneys which any judge would love to read. And they said of your service on that bench, quote, "His legal ability is a perfect 10 out of 10. He's an exceedingly smart man. He's the nicest judge in the courthouse. Never loses his temper, never embarrasses lawyers. You always feel as if you're going to get a fair shake in his courtroom." That is high praise from men and women who could have said other things more negative.

So I thank you for your great service on the federal bench, and I hope today that in the course of questioning we can justify your ambition to move from that bench to this high level in the Department of Justice. And again, I want to thank you and your family, all of you, for the sacrifice you've made to public service. (Inaudible.)

JUDGE FILIP: Thank you very much.

SEN. DURBIN: Thank you, Mr. Chairman.

BREAK IN TRANSCRIPT

SEN. DURBIN: And Judge Filip, let me explain to you what I consider to be my personal moral dilemma with your nomination. I felt that Judge Mukasey offered a clear break from the former Attorney General Gonzales and that his time on the federal bench, and the wisdom of his years, and his responses to questions on our first day indicated to me that he was prepared to stake his personal reputation on standing up for the Constitution, for legal principles, and walk away from the job if he felt he was asked to compromise.

Then came the second day and that's when things fell apart. I asked him a question about waterboarding, followed through by Chairman Leahy and Senator Whitehouse. And at the end of the day, I concluded I could not support his nomination for attorney general. It was a stark reversal, because my friend and colleague Senator Schumer wanted to entrust the job to him. And I felt that this issue was so important and so primal in terms of the rule of law and the image of the United States that until we were given clear, unequivocal answers, I could not go forth.

Now, you find yourself in a compromising position, because you are aspiring to be his deputy. And your answers earlier to questions about waterboarding showed deference to the fact that Judge Mukasey is going through a process of evaluating this issue of waterboarding, which leads me to believe that you're not going to provide any more satisfactory answers on the issue than he did.

So let me try to take this to a point -- I hope we can take it to a point where we can make some progress on this. I've already said, and I believe, you did a fabulous and have done a great job as a federal judge. I'm glad I associated my name with your nomination. You've not disappointed. In fact, you've confirmed our best hopes in terms of your public service.

Here's the point: I think the definition of waterboarding is very basic. If I understand it -- and tried to just jot it down -- it is an interrogation tactic which simulates drowning. It is designed to put the detainee in fear of life. I think that's a fair conclusion to what waterboarding is. And it appears that we have prosecuted Japanese who performed this tactic on American soldiers. We even prosecuted an American soldier guilty of that conduct against Filipinos. It seems to me to be, on its face, an obvious and simple definition that has been applied by your government prosecuting those who did it to others, or did it to our own.

Now, when I ask Judge Mukasey, he said he can't answer that question. Under what circumstances would waterboarding not be torture?

JUDGE FILIP: Senator, I do not have access to those confidential memoranda. And I have not had a dialogue with the attorney general about the question he has presently under review at all. And I don't believe, as someone who would be his putative deputy, I can get out in front of him and answer the question he specifically has under review.

SEN. DURBIN: Do you understand the problem that creates from this side of the table?

JUDGE FILIP: I understand the seriousness of the issue. I understand your frustration and I would ask, respectfully, that you look at my record and see whether I've had hesitation looking at issues independently and in an intellectually honest way in speaking up for what I thought the law required. And that's what I would do if I were confirmed.

SEN. DURBIN: I don't have any question about that. I think you're a man of principle. I recall that when you sought the nomination there was one issue involving something you'd written as a law student, if I'm not mistaken. You took the time to give me a lengthy, and I thought very comprehensive, explanation about your thoughts then and your feelings at the time. I thought it was a very honest admission that perhaps what you said earlier was something you didn't feel today.

This is so fundamental. Since Judge Mukasey took this job as attorney general it appears -- at least now we know -- there's been a public disclosure that evidence was destroyed. It raises a serious question: Should this come up in a criminal prosecution that the government or either side, had destroyed evidence, you know the obvious conclusion that can be drawn -- that that evidence in and of itself was at least troubling if not incriminating.

We continue to be haunted by this administration's refusal to make their actions match their rhetoric. The president has said repeatedly torture is not our policy. We do not engage in torture. And yet, when we go to the most fundamental and basic definition of torture, waterboarding, we can't elicit an answer from the attorney general or his deputy attorney general a clear, unequivocal answer on this. And that is my dilemma. That is what I'm going to be faced with. And I happen to believe this is not just another issue. I think this may be the defining issue for the war on terror and America's reputation when it comes to human rights. And that's why I'm going to continue to struggle with this.

And I don't know if there's any more guidance you can give. You've been consistent in your answer and I understand it, but it doesn't leave me in a place where I feel satisfied. I cannot believe that we're going to walk away from decades of adherence to Geneva Conventions; from a human rights reputation, which led us to be the critic of the world. We published -- you know we publish an annual human rights report card on the rest of the world? Our State Department does that, continues to do that. So it really puts us in a special position of responsibility when it comes to these issues. And that's why I struggle with this issue and I struggle with your response. I think it is a response consistent with Attorney General Mukasey. But consistent with Attorney General Mukasey's response to this committee, he received the lowest confirmation vote of any attorney general nominee in the last 50 years. And that's where you find yourself at this moment over the same issue.

Is there something more you want to say or add to our thinking on this issue before I move to another topic?

JUDGE FILIP: Sir, the issues you identified about our country's perception in the world and our relationships with our allies and our adversaries and our historical allies are very legitimate ones for people to consider. I share those views, but to go further than -- I think that's what I ought to add.

SEN. DURBIN: Let me ask you one last question -- I guess my time is up.

SEN. LEAHY: That's all right.

SEN. DURBIN: If I might ask one last question -- and this really relates to something close to home.

Just last year or earlier this year, I attended the funeral of a 13-year-old in the Logan Square neighborhood in Chicago. Her name was Schanna Gayden -- playing at school and caught in the crossfire of a gang shooting. She was killed. It was a sad moment attending that funeral service, memorial service. I think it's imperative that we deny violent criminal gangs access to deadly weapons. After-the-fact prosecution is vital, but prevention is essential.

If you're confirmed, I want to know if you will make it a priority at the Department of Justice to, number one, ensure that violent criminal gangs cannot obtain deadly weapons; and number two, to make certain that those federal firearms licensees, who knowingly supply guns to gang members and other criminals, are identified and stopped.

JUDGE FILIP: Senator, I have been to those funerals and I have been in hospital waiting rooms with the families of law enforcement officers and children who have been killed -- and at times almost worse than killed in terms of being put in comas -- that they've -- one friend of mine is still in years after the event happened.

I think violent crime's a scourge on this country. It has horrible human consequences. Anybody who's ever been a violence crimes prosecutor, anybody who's ever been an emergency room doctor -- particularly in places like Chicago, but anywhere in the world -- knows that. I will give violent crime an absolute priority and do whatever I could to try to prevent those crimes from --

SEN. DURBIN: And the federal firearms licensees?

JUDGE FILIP: They need to adhere to the law as well. Yes, I would try to help you on that issue. I think it's very important.

SEN. DURBIN: It turns out a very small percentage of them are generating the weaponry that is killing these innocent people.

And there is a mindless crusade by some gun lobbies to keep that information from the hands of prosecutors. I cannot understand how anyone can, in good conscience, adhere to that. And I hope, if you are approved for this spot, that you will have a different view.

JUDGE FILIP: Thank you.

SEN. DURBIN: Thank you.

BREAK IN TRANSCRIPT

Source