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

Interview

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

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SEN. SHELDON WHITEHOUSE (D-RI): Thank you, Mr. Chairman.

Welcome, Mr. Filip and thank you for coming to my office the other day. I appreciated our discussion very much.

Just one final word on the question of waterboarding, which has come up a great deal today. As important as the substantive question of waterboarding is, to those of us who find it self-evident that waterboarding is torture --

JUDGE FILIP: Mm-hmm.

SEN. WHITEHOUSE: -- the failure on the part of the attorney general to -- if I would say it from my point of view, recognize the obvious -- raises a couple of flags. One explanation is that it's lawyerly caution that is behind that, and that's an understandable and legitimate -- if substantively different from my conclusion. The other concern, of course, is that somebody got to him and he was told that this is an issue that you're just going to have to play ball on. After what this department has been through, we are hypersensitive here to that concern. So I hope you appreciate where these questions are coming from.

What I see before me is a man who loves and respects the Department of Justice, a man who served as an assistant United States attorney with considerable distinction and served under both Republican and Democratic administrations, who is willing move his family and give up a lifetime federal judicial appointment -- which is something that, as we know, many of our lawyer colleagues yearn for all their lives -- in order to come back to Washington in order to rally to this department in its hour of need even if there's only a year and change available. Am I mistaken in any of that?

JUDGE FILIP: No, sir. I think the Department of Justice is unique in its role within the country in terms of trying to adhere to the rule of law and I think -- I like being a judge a tremendous amount. I have wonderful colleagues and I have mixed -- I was torn at the idea of leaving the bench, very much so. But if there's an opportunity to serve the department and to make a contribution notwithstanding the minuses on the scales, at the end of the day, that's what won out for me. And if I get the chance to serve, I will try to add my name in a small place on a very long list of people -- many who are quite famous and many, many more who aren't -- who've tried to serve the country honorably in that role. And that's the only reason I'm here.

SEN. WHITEHOUSE: And could you comment just a little further? Because I think we share this view, but I'd like to have you share it here in this public forum on what the role is that the Department of Justice as an institution in our country's architecture of government.

JUDGE FILIP: It's elemental. You know, it's a outdated phrase and -- or an outdated phrase in terms of the language it chooses, but we are a nation of laws and not of men, and the Justice Department is fundamentally dedicated to that. I had the opportunity to serve as an assistant U.S. attorney in a place where people without regard to any politics or any personal predilections about anything join arms and try to make sure that the rule of law is observed and that people try to do the right thing. And things -- "doing the right thing," quote- unquote, is not a self-executing phrase. It takes people rolling up their sleeves and thinking hard about what that means in any particular instance. But it's a great flag for the ship to fly under.

And in terms of the role of the department, it's to protect the civil rights of every individual, it's to try to defend the law of apply the criminal laws vigorously while at the same time respecting the rights of the accused and taking appropriate respect for victims. The department's role is fundamental and it would be my singular privilege to help serve the people in the -- in what fundamentally is a family of people and law enforcement agents who try to make this country a better place. And I appreciate that the people on the streets are the backbone of the department, and that people who sit in suits and aren't there in a position where they're going to get shot on a raid are not the most important people in the department. But if I get a chance to be the person who'd be the deputy, I would try to be there for the people who are the backbone and to try to serve consistent with those principles because that's what's going to endure over time.

SEN. WHITEHOUSE: Let me suggest to you that one of the things that helps those principles endure over time is a battery of institutional safeguards that have been developed within the department over many years for the specific purpose of protecting the extraordinary power that it has. And we know the power that it has. There is no power like it within the continental United States -- within the geographic United States. It is the power to break through someone's door. It is the power to remove them from their homes and throw them behind bars. It is ultimately the power to put them to death. It is clearly the power to destroy reputations.

The idea that that power would be infiltrated by political considerations is anathema to America, and yet we stand at a point where we look back at a department where many of us believe that is precisely what has happened, and moreover, that those very institutional safeguards that were built to protect from that were disassembled in order to allow it to happen. And I would like to ask you to comment on some of these institutional safeguards generally. And then specifically, I understand that the attorney general will be today announcing that the firewall between the White House and the Department of Justice that preexisted the Gonzales and Ashcroft administrations has been reestablished. I hope that is the case. If that is the case, thank God. It's about time.

The other specific one, in addition to the general question about the institutional safeguards, is the manual. Judge -- Senator Feinstein, whose seat I'm sitting in right now, noticed that in the earlier edition -- this 1995 edition -- it was stated quite clearly that federal prosecutors and investigators should be extremely careful to not conduct overt investigations during the pre-election period or while an election is underway. That most, if not all, investigation of an alleged election crime must await the end of the lection to which the allegations relates, and that Justice Department generally does not favor prosecution of isolated fraudulent voting transactions.

In the new version, May 2007, all three of those written guidelines for prosecuting attorneys around the country were removed. I think for the -- they were caught doing it and rather than fix it, they took the offending language -- took down the institutional safeguard -- out of the manual. I would like to see that put back because what the removal of that language does is to allow an ambitious Unites States attorney to prosecute a case of isolated fraudulent voting transaction during the pre-election period as an overt investigation in order to influence the outcome of that election. So that's just one example. I would urge you to really do a thorough -- like a ship captain would when you've had a wreck or a fire; you go back and you do a damage report -- and I would hope that it would be part of your tasking to yourself to say, "What were these institutional safeguards? Which ones were broken and how do we put them back?"

To you.

JUDGE FILIP: The traditions of the department and the safeguards of the department are essential and I would ensure to appreciate them and to apply them, both in fact and in word. I worked in an office and in an area of prosecution in great part where any whiff or fact of partisanship would have fundamentally wrecked the mission and its integrity. And if I'm confirmed, on my watch there'll be none of it, period. And you've identified one important area to look at. There are others. The Honors Program hiring -- that sort of partisan consideration that you alluded to -- it won't happen.

SEN. WHITEHOUSE: Let me ask you about one other thing -- and I just want to express my appreciation to the chairman for letting me go on over my time. I'm grateful.

I've recently had the chance, as a member of the Intelligence Committee, to review a variety of Office of Legal Counsel opinions. After considerable discussion with the DNI and with the department, I've been able to have three legal propositions from those OLC opinions declassified so that I can discuss them publicly. I find them to be pretty dangerous propositions and out of kilter with what my understanding is of basic principles of American law.

One of them I'd like to show right here. "The Department of Justice is bound by the president's legal determinations." It's an interesting theory. If you applied it in a company, I suspect the general counsel who said that to the board of directors about the president would likely be run out of the shop. It's probably malpractice.

It might even be unethical to not be willing to stand by your well-considered and sincerely held legal determination as attorney general of what the law indeed is. And it hearkens back to that unfortunate interview of President Nixon with David Frost some years ago where he said, "Well, when the president does it, that means it is not illegal." It was not exactly a high moment for the rule of law in America.

Would you care to comment on to what extent the Department of Justice, as an independent institution, must yield its view as to the law where the president has instructed it to go otherwise, and whether your opinion changes if the question of the rule of law would potentially involve peril to the president or his or her administration?

JUDGE FILIP: My assessment of the law would be my assessment of the law without regard to where it led me. And if the administration or anyone, including the attorney general, were not able to be persuaded and were to engage in something or direct upon a course that I believed to be inconsistent with the Constitution, I would resign. And I wouldn't hesitate to do that.

SEN. WHITEHOUSE: I'll just say it made me sick to my stomach when I was sitting there and that phrase jumped off the page at me. I think it is the job of the Department of Justice to tell the president what the law is, and not vice versa.

The last question that I have for you, I'm asking at the behest of my colleague from Florida, Senator Bill Nelson. He is not on this committee, but he has a matter that concerns him very greatly because he has a constituent, Jamie Leigh Jones -- well, actually, she's from Texas; there's another constituent. And his constituent and Ms. Jones from Texas share a story.

As Americans, they traveled abroad. They were paid -- what's the word I'm looking for? -- not consultants, but contractors in Iraq. They were working for Halliburton-KBR or Halliburton-KBR subsidiaries. They were subjected to rape, in some cases gang rape. The rape kit, which was in the custody of the company, has evidently disappeared. And the women are concerned that there appears to be no considerable effort of any kind to follow this to its proper prosecutive conclusion.

I was wondering if you have any thoughts on where the department would go. Are you familiar with the allegations involving legal abuse against Americans by contractors in Iraq? And how would you expect to handle this as deputy attorney general?

JUDGE FILIP: I'm not familiar with it. Obviously any crime of that nature is of the utmost gravity. I don't know -- the judge in me would want to sort out the jurisdictional area. But if there was a rape within the purview of the Justice Department, it would have appropriate high priority to be prosecuted, absolutely.

SEN. WHITEHOUSE: And I hope you'd come quickly back to us if you felt that there was a jurisdictional problem and that the United States writ did not lie with respect to an American overseas where employees of an American company, who are also Americans, had apparently drugged and raped -- allegedly drugged and repeatedly raped this individual and actually held her in a container for 24 hours, according to her allegations, before she was allowed to be released back to the United States, which happened only because she was able to get her hands on a cell phone and call her congressman, who was able to break through.

It's a pretty sordid story. And if the writ of the Department of Justice does not run in that situation for any reason, we would like to know about that right away.

JUDGE FILIP: Of course.

SEN. WHITEHOUSE: And, of course, the fact that Halliburton is an enormous contractor to the government and has been closely engaged with significant political figures obviously raises some additional hackles when evidence appears to have disappeared, an American appears to have been abused, and there appears to have been literally no effort to get to the bottom of it.

JUDGE FILIP: I understand. And if there's been any incidents of a rape allegation anywhere, it's a very serious allegation. It should be pursued vigorously.

SEN. WHITEHOUSE: I know Senator Nelson would appreciate that. And I'm asking these questions on his behalf, because of his really deep concern about this problem for his constituent.

And Mr. Chairman, thank you very much.

I want to just close briefly by telling the judge that I truly wish you well, like I think all of my colleagues, who are very concerned about the present state of the department, and we are -- (inaudible) -- really here available to listen and to work with you to do anything necessary to put the department back on its feet.

And my compliments to you for having come to this position and being willing to assume these responsibilities; my compliments to your wife Beth for being willing to undertake all of the upheaval that this move will require; and my remarkable compliments, as the father of a 14-year-old boy, to Matthew, Tommy, Charlie and Joe for having sat quietly and still through this long and, from their point of view, very tedious proceeding. But it has been very important for all of us, and I appreciate you being here.

Thank you, Mr. Chairman.

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SEN. WHITEHOUSE: I thank the chairman. Judge Filip, these are not so much questions as they are -- I just want to make a request to you and make a record in these proceedings. In addition to the proposition that the Department of Justice is bound by the president's legal determinations, there were two other legal statements that leapt off the page of those OLC opinions at me that I consider to be inconsistent with American law and constitutional structure, and I just want to mention them to you so you know what they are. I'd like to have you take a look at them once you get to be the deputy attorney-general.

My sense is that for a while the inmates were allowed to take over the asylum at OLC, and it may be time to go back and take a look at some of the statements that were left in these opinions because as you know OLC has a tradition of precedent of its own, and I wouldn't want these to become, you know, the evil seed that grows into a true constitutional problem down the road.

One is this -- an executive order cannot limit a president. There is no constitutional requirement for a president to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order the president has instead modified or waived it. In my view, what that allows is for there to be a public executive order the purports to control a particular program or activity, and a program or activity that is operating in flagrant and complete violation of that executive order at the same time without any disclosure ever -- without going back to the executive order and amending it nunc pro tunc -- without anything.

I don't think that is what executive orders are for. I don't think that's the way American government should work. I think it creates an opportunity to use executive orders not to control government but to mislead the American people, and I'd like you to take a look at that one.

And the other is this one -- we know there's been a mania about Article 2 recently and this one says that the president exercising his constitutional authority under Article 2 can determine whether an action is a lawful exercise of the president's authority under Article 2. You heard the phrase trying to pull yourself up by your own bootstraps? That seems to be an exercise in trying to lift yourself by your own bootstraps and it seems to fly very directly in the face of Marbury v. Madison, which is a fairly core decision in our jurisprudence, that is emphatically -- that's the word in the case, emphatically -- the province and the duty of the judicial department to state what the law is.

So the idea that the president has Article 2 authority to make his own determination as to what his own Article 2 authority is is a proposition I would like to see reexamined with cooler heads in place, and I appreciate your attention to those two things. I'm not going to call you on it now but I wanted to take this opportunity to put them out there as markers because I think it is important to pull back from what I consider to be some rather extreme points of view. I appreciate it and I thank the chairman for the additional time.

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