Mukasey Testifies At Senate
Judiciary Committee Oversight Hearing
WASHINGTON
(Wednesday, July 9, 2008) – Senate Judiciary Committee Chairman
Patrick Leahy (D-Vt.) convened a hearing Wednesday morning where
the Committee heard testimony from Attorney General Michael
Mukasey related to oversight of the Department of Justice. The
Attorney General last appeared before the panel on
January 30. Under Leahy’s chairmanship, the Judiciary
Committee has held periodic hearings as part of its function in
conducting oversight of the Department of Justice.
Leahy’s
prepared opening statement follows.
Statement Of
Sen. Patrick Leahy (D-Vt.),
Chairman,
Senate Judiciary Committee,
Hearing On
Oversight Of The Department Of Justice
July 9, 2008
Today we welcome Michael Mukasey
back to the Committee for his second appearance as Attorney
General. Mr. Mukasey has been on the job for eight months since
succeeding Alberto Gonzales. He is now more than halfway
through his term as Attorney General. His tenure will be judged
by how much he has done to restore the Department of Justice, an
agency whose mission and objectives were severely undercut by
scandals under the Bush administration. Mr. Mukasey will also
be judged by what the Department has done – and not done – to
reaffirm the checks and balances that are the fulcrum for our
democracy, and a key to protecting the rights and liberties of
all Americans.
When this Committee began its
oversight efforts at the start of this Congress, we exposed a
crisis of leadership and partisan political influence that had
taken a heavy toll on the tradition of independence that has
long guided the United States Department of Justice. Senators
on this Committee from both sides of the aisle joined together
to press for accountability. What followed was a change in
leadership at the Department, with the resignations of Attorney
General Gonzales, the Deputy Attorney General, the Associate
Attorney General, their chiefs of staff, the White House
liaison, and the resignations of Karl Rove, his political
deputies, the White House Counsel, and others.
We have seen what happens when the
rule of law plays second fiddle to a President’s agenda and the
partisan desires of political operatives. It is a disaster for
the American people. Both the President and the nation are best
served by a Justice Department that provides sound advice and
takes responsible action, not one that develops legalistic
loopholes and ideological litmus tests to serve the ends of a
particular administration.
The recent report from the
Department’s Inspector General confirms what our oversight
efforts have uncovered about the politicizing of hiring
practices at the Department. It confirms our findings and our
fears that the same Bush Justice Department officials involved
with the firing of United States Attorneys were injecting
partisanship into the hiring of young attorneys. I expect
further reports from the Inspector General will shed additional
light on the extent to which the Bush administration has allowed
politics to affect – and infect – the Department’s priorities,
from law enforcement to the operation of the Civil Rights
Division to the Department’s hiring practices.
The Department of Justice is not
the President’s legal defense team any more than the Attorney
General is his lawyer. The Attorney General is not the White
House counsel and should not act as one. The Department of
Justice is a law enforcement agency, not a partisan political
operation. These are the truths that have been overridden in
the last seven years.
This hearing is Attorney General
Mukasey’s opportunity to show us what he has done on each of
these fronts. What he has done to restore the independence of
the Department of Justice? What he has done to push back against
the overreaching from the Bush-Cheney White House, including its
claims to unfettered power at the expense of the principles of
judicial review and congressional oversight?
On issue after issue, from the
warrantless wiretapping of American citizens, to the descent
into torture thinly veiled by the use of the Orwellian-term
“enhanced interrogation techniques;” from undercutting laws
meant to protect clean air and clean water, to the untoward
political influence of the White House at the nation’s top law
enforcement agency; from the destruction of CIA tapes showing
detainee interrogations, to grandiose claims of immunity and
executive privilege from congressional oversight – this
administration makes the Watergate era look like child’s play.
The conservative Supreme Court’s
recent decision in Boumediene v. Bush reaffirmed our core
American values and serves as a stinging rebuke to the Bush
administration’s excesses. The Court’s opinion not only
rejected the administration’s detention practices as
unconstitutional, it also reminded us of the dangers posed to
the Constitution by a runaway executive: “Security subsists,
too, in fidelity to freedom’s first principles. Chief among
those are freedom from arbitrary and unlawful restraint and the
personal liberty that is secured by adherence to the separation
of powers.” Justice Kennedy wisely counsels that we do not have
a system in which this or any administration “may switch the
Constitution on and off at will.” He writes: “The laws and
Constitution are designed to survive, and remain in force, in
extraordinary times. Liberty and security can be reconciled; and
in our system they are reconciled within the framework of the
law.”
These principles of checks and
balances and of the rule of law are what this administration,
and a complicit Justice Department, have ignored—that our
fundamental adherence to our Constitution and the rule of law is
a strength. No one—not even a President—is above the law. The
Justice Department owes its loyalty to the law.
How different would these last
seven and a half years have looked if the Justice Department had
served as a bulwark against the administration’s overreaching?
Instead, the Department of Justice provided “cover” for some of
the administration’s worst excesses. One of the most disturbing
aspects of these years has been the Department’s secret legal
memoranda that have sought to define torture down to
meaninglessness, sought to excuse warrantless spying on
Americans contrary to our laws; and sought to justify absolute
immunity of White House employees from congressional subpoenas
without reference to a single legal precedent.
Attorney General Mukasey
repeatedly assured us during his confirmation hearing that he
would take a fresh look at these secret legal memos. He
committed to this Committee that he would review them and
withdraw or modify those that were unjustified or unwise. Even
Attorney General Gonzales did that – he withdrew the August 2001
Bybee memo justifying torture when it came to light just before
his own confirmation hearing in 2005.
We look forward finally to obtaining these memos-- to obtaining
even the index of these memoranda-- that we have been denied
over the years. Today we look forward to learning which aspects
of what memos that have formed the legal framework for the Bush
administration’s policies have been modified or withdrawn by
Attorney General Mukasey.
This Committee has a special
stewardship role to protect our most cherished rights and
liberties as Americans, and to make sure that our fundamental
freedoms are preserved for future generations. The path taken
during the last seven and a half years has been one that has
disregarded basic rights, turned us from a nation devoted to the
rule of law to one ruled by secret pronouncements of the
executive.
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