Opening Statement of Sen. Sessions for the Nomination Hearing of Elena Kagan
WASHINGTON-U.S. Senator Jeff Sessions (R-AL), Ranking Member of the Senate Judiciary Committee, delivered the following opening statement today at the nomination hearing of Elena Kagan to be an Associate Justice of the U.S. Supreme Court:
“Ms. Kagan, let me join Chairman Leahy in welcoming you here today. This nomination is certainly a proud day for you, your family, and your friends-and rightfully so. I enjoyed very much our meeting a few weeks ago, and appreciated the chance to talk with you.
Mr. Chairman, thank you for your work on this nomination. As I have pledged, Republicans are committed to conducting this hearing in a thoughtful and respectful manner. It is not a coronation, but a confirmation. Serious and substantive questions will be asked. Ms. Kagan will be given ample opportunity to respond.
Ms. Kagan certainly has numerous talents and good qualities, but there are serious concerns about this nomination.
Ms. Kagan has less real legal experience of any nominee in at least fifty years. It’s not just that she has never been a judge.
She has barely practiced law, and not with the intensity and duration from which real understanding occurs.
Ms. Kagan has never tried a case before a jury.
She argued her first appellate case just nine months ago. While academia certainly has value, there is no substitute for being in the harness of the law, handling real cases over a period of years.
What Ms. Kagan’s public record does reveal, however, is a more extensive background in policy and politics, mixed with law.
Ms. Kagan’s college thesis on socialism in New York seems to bemoan socialism’s demise there.
In her master’s thesis, she affirmed the activist tendencies of the Earl Warren Court, but complained that they could have done a better job of justifying their activism.
President Obama’s nominee started her political career in earnest as a staffer on the presidential campaign of Michael Dukakis.
She took leave from teaching at law school to work for this committee under then-Chairman Joe Biden to help secure the confirmation of Ruth Bader Ginsburg-a former chief counsel for the ACLU and now one of the most activist justices on the Supreme Court.
Professor Kagan left teaching law to spend five years at the center of politics, working in the Clinton White House, doing-as she describes it-”mostly policy work.”
Policy is quite different than the intense legal work involved, for example, in the Office of Legal Counsel and other divisions of the Department of Justice.
During her White House years, the nominee was the central figure in the Clinton-Gore effort to restrict gun rights-and, as the dramatic 5-4 decision today in McDonald shows, the personal right of every American to own a gun hangs by a single vote.
Ms. Kagan was also the point person for the Clinton Administration’s efforts to block Congressional restrictions on partial-birth abortions.
Indeed, documents show she was perhaps the key person who convinced President Clinton to change his mind, from supporting to opposing legislation that would have banned that horrible procedure.
During her time as Dean of Harvard, Ms. Kagan reversed Harvard’s existing policy and kicked the military out of the recruiting office in violation of federal law. Her actions punished the military and demeaned our soldiers as they were courageously fighting two wars overseas.
As someone who feels the burden of sending such young men and women into harm’s way-and who spent much time drafting and redrafting legislation to ensure military recruiters were treated fairly on campus-I can never take this issue lightly.
Dean Kagan also joined with three other law school deans to write a letter in opposition to Senator Graham’s legislation establishing procedures for determining who was an “enemy combatant” in the War on Terror. She compared this legislation to the “fundamentally lawless” actions of “dictatorships.”
Most recently, the nominee served as Solicitor General for a little over a year.
But, her short tenure has not been without controversy.
In her first appellate argument, Ms. Kagan told the Court that the speech and press guarantees in the First Amendment would allow the federal government to ban the publication of pamphlets discussing political issues before an election.
I would remind my colleagues that the American Revolution was-in no small part-spurred on by just such a political pamphlet, Thomas Paine’s “Common Sense.” To suggest that the government now has the power to suppress that kind of speech is breathtaking.
Also as Solicitor General, Ms. Kagan approved the filing of a brief before the Supreme Court asking that it strike down provisions of the Legal Arizona Worker’s Act, which suspends or revokes business licenses of corporations which knowingly hiring illegal immigrants, even though Federal law expressly prohibits such hiring.
She did this even after the liberal 9th Circuit had upheld the law.
This is an important legal issue that the Court will resolve during its next term.
And, despite promises to this committee that she would “vigorously” defend the Congress’ “Don’t Ask, Don’t Tell” law if it were challenged in court, the actions she has taken as Solicitor General appear to have deliberately and unnecessarily put that law in jeopardy.
Importantly, throughout her career, Ms. Kagan has associated herself with well-known activist judges who use their power to redefine the meaning of the words of our Constitution and laws in ways that, not surprisingly, have the result of advancing the judge’s preferred social policies for the country.
She clerked for Judge Mikva and Justice Marshall, each a well-known liberal activist judge. And she has called Israeli Judge Aharon Barak-who has been described as the most activist judge in the world-her hero.
These judges don’t deny activism; they advocate it. And they openly oppose the idea of a judge as a neutral umpire.
Few would dispute that this record tells us much about the nominee. In many respects, Ms. Kagan’s career has been consumed more by politics than law. This worries many Americans.
In the wake of one of the largest expansions of government power in history, many Americans are worried about Washington’s disregard for limits on its power.
Americans know that our exceptional Constitution was written to ensure that our federal government is one of limited, separated powers, and part of a federal-state system, with individual rights reserved to our free people.
But we’ve watched as the president and Congress have purchased ownership shares in banks, nationalized car companies, seized control of the student loan industry, taken over large sectors of our nation’s health care system, and burdened generations of Americans with crippling debt.
This all sounds a lot like the progressive philosophy, which became fashionable among elite intellectuals a century ago-and which is now seeing a revival.
They saw the Constitution as an outdated impediment to their expansive vision for a new social and political order in America.
Even today, President Obama advocates a judicial philosophy that calls on judges to base their decisions on empathy and their “broader vision of what America should be.” He suggests that his nominee shares that view.
Our legal system does not allow such an approach.
Americans want a judge that will be a check on government overreach, not a rubber stamp.
No individual-nominated by a president of either party-should be confirmed as a judge if he or she does not understand that the judge’s role is to fairly settle disputes of law, and not to set policy for the nation.
Broad affirmations of “fidelity to the law” during these hearings will not settle the question. One’s record also speaks loudly. Indeed, it is easy to pledge fidelity to a law when you believe you can change its meaning later if you become a judge.
Ms. Kagan has called previous confirmation hearings “vapid” and “hollow,” and has argued that nominees for a lifetime position owe a greater degree of candor and openness to the committee.
I agree that candor is needed, and I look forward to that kind of exchange this week.
Four Republican Senators urged the Justice Department to turn over non-public reports prepared by Deputy Attorney General nominee James Cole during his time as an independent monitor to American International Group (AIG).
Cole, a former public corruption prosecutor and longtime friend of Attorney General Eric Holder, worked as an independent consultant for AIG from January 2005 until earlier this year as part of a deferred prosecution agreement between Justice Department and the insurance giant.
In a letter to Assistant Attorney General for Legislative Affairs Ronald Weich, Senate Judiciary Committee Ranking Republican Jeff Sessions of Alabama along with GOP Sens. Charles Grassley of Iowa, John Cornyn of Texas and Tom Coburn of Oklahoma requested copies of all reports submitted by Cole to DOJ while he worked for AIG.
“We understand the confidential treatment of Mr. Cole’s reports… and his recommendations to AIG stem from the deferred prosecution agreements between the Department and AIG,” the senators wrote. “The Judiciary Committee cannot, however, fully and properly evaluate Mr. Cole’s nomination without this documentation.”
A Justice Department spokeswoman defended Cole’s role at AIG and said he made “significant progress in implementing critically-needed reforms” in the areas he was charged with overseeing.
“Critics who suggest that Mr. Cole was somehow too close to AIG misunderstand his relationship with the company,” said spokeswoman Tracy Schmaler. “His presence was imposed on the company by a federal court. In fact, as the [Congressional Research Service] report notes, AIG executives tried to have him removed.”
“[Cole] was never a general overseer or monitor of AIG’s entire operation nor was he assigned to examine many of the issues involving AIG’s near collapse, such as credit-default swaps or retention bonuses,” Schmaler added.
Sessions only briefly brought up Cole’s work for AIG at a confirmation hearing last Tuesday and focused his questions mainly on a 2002 opinion piece written by Cole about the use of civilian trials for terrorism suspects. Grassley and Coburn did not attend the hearing.
In his opening statement at the hearing last week, Cole defended his work on AIG. “The company resisted some of my efforts, but I insisted on tough measures,” Cole said.
Cole’s reports on AIG were confidential, but the Justice Department sent the reports to the House Oversight and Government Reform Committee last year. The panel asked the Congressional Research Service to issue a report on Cole’s oversight of the company.
President Barack Obama nominated Cole to be Deputy Attorney General last month. He would replace acting Deputy Attorney General Gary Grindler, who has held the post since David Ogden stepped down in February.
The letter and the full statement from the DOJ is reprinted below.
June 23, 2010
Assistant Attorney General
Office of Legislative Affairs
Department of Justice
Washington, D.C. 20530
Dear Mr. Weich:
We write regarding the nomination of James Cole to be Deputy Attorney General. Mr. Cole served as independent consultant to American International Group (AIG) for a number of years prior to that company’s near collapse and government-sponsored bailout in 2008. Numerous questions persist regarding Mr. Cole’s role in monitoring AIG in view of the company’s recent history. Such questions could not adequately be addressed at Mr. Cole’s June 15 hearing, however, because Mr. Cole appears to be prohibited from disclosing the nature of his work as an independent consultant and because the underlying documents apparently remain confidential. These documents include the deferred prosecution agreements, his recommendations to AIG, and his reports to the Department of Justice (Department), Securities and Exchange Commission (SEC) and the New York Attorney General’s Office (NYAG).
As a result of these claims of confidentiality, we have been unable to verify a number of reports that have questioned Mr. Cole’s activities as the independent consultant to AIG. For example, it has been reported that Mr. Cole “allowed AIG management to revise his quarterly reports to the SEC.” According to these same reports, Mr. Cole also made recommendations that there be independent review of all derivative transactions, but he expressly exempted derivative transactions made by the AIG-Financial Products group (AIG-FP). AIG-FP is the subsidiary of AIG that was responsible for the derivative transactions that ultimately led to a $182 billion taxpayer bailout. We understand Mr. Cole’s recommendation for derivative products by AIG-FP went even farther to state that “the appropriate independent review of the proposed derivative transactions or programs should be conducted by AIG-FP.” This recommendation raises serious questions about the thoroughness and independence of Mr. Cole’s review of these transactions. It was the devaluation of those high-risk transactions that led to AIG’s demise, and ultimately, the economic collapse.
If true, these reports about Mr. Cole’s deference to AIG and its subsidiaries would raise serious concerns regarding his performance as independent consultant. Due to the unknown nature of Mr. Cole’s work and the secrecy surrounding his recommendations and reports to the Department and the SEC, the Committee remains unable to verify or dismiss these reports.
We understand the confidential treatment of Mr. Cole’s reports to the Department, the SEC and the NYAG, and his recommendations to AIG stem from the deferred prosecution agreements between the Department and AIG. The Judiciary Committee cannot, however, fully and properly evaluate Mr. Cole’s nomination without this documentation. Accordingly, we request copies of all reports submitted by Mr. Cole in his role as independent consultant to the Department. To the extent the Department received such materials, we further request copies of Mr. Cole’s reports to the SEC and NYAG, as well as copies of all recommendations made to AIG by Mr. Cole. Finally, we request all responses submitted by AIG to the Department related to, or responding to, any report or recommendation issued by Mr. Cole as the independent consultant to AIG.
Thank you for your attention to this matter, which will help us to discharge our constitutional obligation to consider this nomination. To avoid any unnecessary delay, we respectfully ask you to provide this information as soon as possible so the Committee can consider Mr. Cole’s nomination.
Very truly yours,
Statement from Tracy Schmaler, Justice Department spokeswoman:
“James Cole was assigned by a federal court order to serve as an outside independent consultant to AIG as the result of two specific lawsuits the company settled charging it with engaging in bid rigging, helping its clients to falsify their financial condition, and violating accounting rules. Mr. Cole was never a general overseer or monitor of AIG’s entire operation nor was he assigned to examine many of the issues involving AIG’s near collapse, such as credit-default swaps or retention bonuses.
“For those areas of the company that the court did give Mr. Cole authority to address – fraudulent transactions and the company’s compliance with applicable laws and regulations – Mr. Cole made significant progress in implementing critically-needed reforms by making sure the company improved its reporting lines and the independence of compliance staff so that they could not be pressured by the company’s business managers.
“Critics who suggest that Mr. Cole was somehow too close to AIG misunderstand his relationship with the company. His presence was imposed on the company by a federal court. In fact, as the CRS report notes, AIG executives tried to have him removed.”
When Deputy Attorney General nominee James Cole appears before the Senate Judiciary Committee for his confirmation hearing, Republicans plan to question him on his work monitoring insurance giant American International Group (AIG).
“How he performed at that job is directly relevant to his qualifications and will need to be closely examined,” Sen. Jeff Sessions (R-Ala.), Judiciary’s ranking Republican, said in a statement sent out shortly after Cole was nominated on May 21.
Cole’s work as a monitor began in 2005 – a full three years ahead of the company’s near collapse in 2008 – and he was still on the job as of last week. The Justice Department has not discussed his work at AIG, but several Cole allies said it was unfair to blame him for the company’s problems.
But what exactly was Cole’s role at AIG, which received $180 billion in federal bail-out assistance and became a symbol of the excess and recklessness behind the financial meltdown?
In 2004, the Justice Department’s Fraud Section chose Cole from a pool of three candidates selected by AIG to be an independent monitor as part of a deferred prosecution agreement. Under the terms of the agreement, DOJ agreed to hold off on prosecuting AIG for selling financial products that companies used to create the appearance of financial strength. Prosecutors agreed not to pursue criminal charges against the company if it complied with reforms and paid millions in fines.
Cole, a former deputy chief of the DOJ’s Public Integrity Section and special counsel to the House ethics committee that investigated then-Speaker Newt Gingrich (R-Ga.) for misuse of tax exempt organizations, was, by the time of the deferred-prosecution arrangement, working at the law firm of Bryan Cave LLP.
In January 2005, he took on a senior role in overseeing AIG’s dealings, investigating financial transactions dating back to 2000 that allegedly allowed AIG to manipulate earnings statements. His role was expanded in 2006, when AIG reached a separate agreement with the Securities and Exchange Commission to settle an inquiry into accounting irregularities and allegations of bid rigging. Cole was assigned to oversee corporate governance and take a look at their controls on financial reporting.
Cole’s firm earned fees of about $20 million for its work as a compliance monitor, according to The Wall Street Journal. Some of the transactions Cole examined had been structured by AIG’s Financial Products group, the same unit that would later write billions of dollars worth of credit default swaps that almost destroyed the company and forced the government into a costly rescue deal fearing the potential damage to the overall economy.
As a monitor, Cole regularly attended AIG Board of Directors committee meetings, including at least two February 2008 meetings where board members were told of findings of “material weakness” in the company’s accounting systems that were uncovered by auditors at PricewaterhouseCoopers LLP, the Journal reported.
A Bryan Cave representative declined to comment on Cole. Calls to Cole were referred to the White House. A Justice Department spokeswoman also declined to comment. Sessions’ office did not return calls seeking comment. Cole told The Wall Street Journal in 2009 that an agreement with AIG prohibits him from making any public comment on his work.
Recently, AIG has been back in the news with reports that the Justice Department has decided not to bring criminal charges after a two-year inquiry into AIG’s senior executives, including Joseph Cassano, the former CEO of the AIG Financial Products unit. Prosecutors were examining whether Cassano misled investors in 2007 when he said the group’s obligations on the mortgage securities it backed were unlikely to produce losses. Justice Department officials have so far said nothing publicly about the investigation.
Now that his nomination has been announced, a person familiar with Cole’s current activities said “he’s in [the] process of transitioning [out of his law] practice.”
It will likely be several months before Cole’s hearing, though no time frame has been set. That long lead time may work against him, giving his critics plenty of time to closely examine his record overseeing AIG.
Critics say Cole, who has been picked for a critical DOJ job that requires a kind of radar to detect issues might prove troublesome, should have been more attentive to possible financial misdeeds and highly risky deals.
“It’s as though Cole were spackling cracks in the compliance walls and never noticed that AIG’s financial foundation was crumbling beneath his feet,” wrote Corporate Counsel in July 2009.
The Government Accountability Project, a nonprofit watchdog group, also has said that Cole didn’t ask enough questions leading up to the financial meltdown that nearly consumed AIG.
“Cole came into AIG as the independent monitor like an anti-fraud typhoon, meeting with the relevant people and overseeing about 35 different work streams,” Beatrice Edwards, GAP’s International Reform Director, wrote in a blog post criticizing his nomination. “But gradually… he seemed to weaken and adapt,” Edwards said sources told her. “Cole failed to detect an atmosphere of, shall we say, laissez faire compliance at the company.”
But Cole’s defenders are quietly mounting a defense of his work for AIG, saying privately that he isn’t to blame for what happened at the insurance giant. Few Cole allies were willing to publicly discuss the specifics of his role. Several people familiar with Cole’s oversight of AIG said that though Cole was assigned to monitor accounting driven investment practices, his work did not specifically include the major issue that nearly led to the company’s demise — namely credit default swaps.
A credit default swap (CDS) is a type of financial transaction that acts as a form of insurance in case of default. For example, AIG sold thousands of credit default swaps to banks and investment firms on real estate bonds. For a fixed quarterly payment, AIG guaranteed that if a bond issuer defaulted, AIG would pay the CDS buyer the face value of the bond.
Supporters of Cole have suggested that since many financial experts missed the underlying problem of credit default swaps in the years leading up to the financial crisis, a lawyer like Cole — who was broadly overseeing the complex conglomerate’s transactions — could not have been expected to have foreseen the problem, either.
Thomas Hanusik, a partner at Crowell & Moring LLP, who had been the lead prosecutor on an AIG investigation before he left the Justice Department in January 2006, said he had the “utmost respect” for Cole and that he was “incredibly thorough” in his oversight work.
A White House official agreed that Cole’s work as a monitor would not have covered the issue of credit default swaps.
Others in the legal community from both sides of the docket praised Cole as professional, ethical, credible, and a skilled advocate and highly regarded.
But on Capitol Hill, his reputation can only get him so far, particularly when Republicans seem prepared to contest many of the president’s nominees. Cole was well paid as the government’s cop on the beat at AIG, and his job was to impose tough managerial controls and financial discipline at the company. But instead of achieving stability, AIG nearly buckled under the weight of its high-risk financial practices that continued while Cole was its monitor.
Republicans appear ready to attack his association with the much-vilified AIG, and could demand to see the full reports he issued to AIG, which have so far been kept from public view.
The Justice Department has already send Cole’s reports on AIG to the House Oversight Committee, according to committee spokesman Adam Hodge. The documents were requested in a letter last April by House Oversight and Government Reform Committee Chairman Edolphus Towns (D-N.Y.) and Ranking Republican Darrell Issa of California to Attorney General Eric Holder. The reports were only handed over under the threat of a congressional subpoena, and the committee has not made the documents publicly available.
A Democratic Judiciary Committee aide said Democrats weren’t sure whether Cole would be required to disclose the full AIG monitoring reports as part of the hearing for his nomination.
Congress has taken a look at Cole’s work on AIG before in the form of a 2009 Congressional Research Service report issued at the request of the House Oversight Committee. His mission as independent consultant, notes the report, “did not include investigation of past misconduct.”
Three reports issued during Cole’s tenure as monitor in August and September of 2007, “are entirely forward looking; they set out a range of best practices that encompass virtually all of the company’s compliance and reporting obligations” the CRS report said. “It is almost as though the Independent Consultant assumed that AIG had no internal compliance or accounting systems whatsoever and proceeded to draw them on a blank slate,” according to the report.
As of April 2008, just months ahead of the near collapse, AIG had accepted virtually all of Cole’s recommendations with just minor modifications, according to the CRS report. In a May 15, 2008 report, Cole wrote that “AIG had worked diligently and deserves commendation for its efforts to date,” according to CRS. Cole’s Aug. 15, 2008 report was not in general critical of AIG’s implementation efforts, but the report graded its compliance in the area of records keeping as “off-track.”
After the September 2008 financial crisis, Cole’s Nov. 15, 2008 report began by noting that “AIG has entered into what can only be described as a crisis scenario.” The recommendations he made for AIG were placed on hold, and Cole said he intended to meet with AIG every two months to determine whether the company were stable enough to continue implementation of his recommendations.
Cole’s role at AIG was narrowed after the government bailout in 2008, but he issued a report in March 2009 that concluded the failure to treat credit default swaps as “significant” or “non-standard” transactions created “a gap that we recommend be closed,” according to the CRS report.
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President Barack Obama’s Justice Department Office of Legal Counsel nominee Dawn Johnsen withdrew her nomination Friday.
Here is the full statement from Sen. Jeff Sessions of Alabama, the ranking Republican on the Senate Judiciary Committee.
April 9, 2010
For Immediate Release
Contact: Stephen Miller or Stephen Boyd
Sessions Responds to the Withdrawal of Controversial DOJ Nominee Dawn Johnsen
WASHINGTON—U.S. Senator Jeff Sessions (R-AL), Ranking Member of the Senate Judiciary Committee, made the following comments today after it was announced that the nomination of Dawn Johnson, President Obama’s controversial pick to be the Assistant Attorney General for the Justice Department’s Office of Legal Counsel, would be withdrawn:
“I am pleased that the President has heeded the concerns raised by many who care deeply about the Department of Justice regarding the nomination of Dawn Johnsen. Ms. Johnsen’s record of partisanship and her long history of extreme views and troubling activism relating to issues such as abortion and national security made her an unacceptable choice to fill this crucial role in the Department of Justice. It is not surprising that the Democrat-controlled Senate never made an effort to bring her nomination to a vote on the floor:. Had they done so, the nomination certainly would have faced bipartisan opposition. The Office of Legal Counsel has a significant legal role in the war on terror, and it is my sincere hope that the President will nominate someone who is prepared to vigorously defend the military’s legitimate actions in the fight against terrorism.”
[Note: To view a January 13 letter, sent by all seven Judiciary Committee Republicans, asking for a new hearing in light of Ms. Johnson’s troubling record on national security, please click here. To view comments from all committee Republicans, dated March 4, detailing their concerns after Dawn Johnsen was reported out of the Judiciary Committee, please click here.]
In a letter to two Republican senators Friday, Attorney General Eric Holder apologized for not listing several friend-of-the-court briefs on the Senate Judiciary Committee questionnaire during his confirmation process last year. But Holder maintained his current position on executive power is consistent with what he expressed in the briefs.
A National Review column published earlier this month blasted Holder for not disclosing on his questionnaire two Supreme Court amicus briefs in the high-profile terrorism case of Jose Padilla that he had joined in signing. In one of the briefs, Holder and several former DOJ officials from the Clinton administration argued that the danger of a too-powerful executive branch outweighs the risk of losing intelligence in terrorism cases prosecuted in civilian courts.
Republicans pounced on the omission and several days later, the DOJ turned over to the Senate half a dozen Supreme Court briefs Holder neglected to disclose.
In a letter Friday addressed to Senate Judiciary Committee Republicans Jeff Sessions of Alabama and Jon Kyl of Arizona, Holder wrote that the omision occurred because his initial reviewers relied on his law office files, which were incomplete. Later during the confirmation process, a second set of reviewers found the Padilla briefs but left them out because they “understood that question to call for briefs on which I had been the lawyer, not the client,” Holder wrote.
“Although it does not excuse my failure to list these briefs, I note that they have always been included in widely available legal databases, and have never been hidden from public view at all,” he added. “The bottom line, of course, is that I should have included these documents in my submission to the Committee. I am aware of no other inaccuracies in my questionnaire, and none has been brought to my attention.”
Last Friday, Sessions and Kyl sent a letter to Holder concerning the briefs and said they planned to question him at a panel oversight hearing on “the apparent contradictions” between his current views on terrorist detention and what he previously expressed in the briefs. That hearing was later postponed and rescheduled for April.
“Having now reviewed these briefs, we are concerned that some of the arguments contrast sharply with statements you made as Attorney General in defense of civilian trials for Khalid Sheikh Mohammed (KSM) and his fellow 9/11 co-conspirators,” the senators wrote in the letter last week. “Your brief also contrasts with the administration’s defense of its interrogation and civilian criminal handling of the Christmas Day bomber, Umar Farouk Abdulmutallab.”
In the response Friday, Holder said the amicus brief was fully consistent with his current view that the “criminal justice system remains a powerful weapon in our arsenal.”
“To be sure, the brief acknowledges the fact that, in light of legal constraints, there might be ’some hypothetical situation’ in which it may not be possible to use our numerous law enforcement tools to arrest and extract information from a U.S. citizen who we suspect is linked to terrorist activity,” Holder wrote. “This merely states the obvious fact that there may be limitations upon the ability of the executive branch to restrict the liberty of U.S. citizens, at least absent further authorization from Congress.”
He continued, “as noted in that brief, Congress has provided the president with comprehensive and extraordinary powers to fight terrorism without making claims that strain the Constitution. Where necessary, the president should work with Congress to obtain additional authority.”
As an example, Holder cited the Bush administration’s work with Congress to pass the USA PATRIOT Act.
“We are safer today because we have those tools,” Holder said of the Patriot Act.
The full text of the letter is embedded below. Leah Nylen contributed to this report.
News release from Senate Judiciary Committee ranking Republican Sen. Jeff Sessions of Alabama.
“Sessions Responds to Misleading DoJ Terror Stats”
“It is simply disingenuous for the Attorney General to argue that these cases demonstrate that captured enemy combatants, as classified under the 2009 Military Commissions Act, are better tried in civilian rather than military court.”
WASHINGTON—U.S. Senator Jeff Sessions (R-AL), Ranking Member of the Senate Judiciary Committee, made the following comments regarding documents provided today by the Department of Justice. In a letter sent to Sessions, DoJ officials provided the names of 403 individuals reportedly charged or convicted of terrorism-related offenses. Similar figures have long been used by the administration to justify civilian trials for captured terrorists, including KSM. For the past 10 months, Republicans had been asking for the names of these individuals, arguing that most of the cases likely did not involve prosecutions of high-value foreign terrorists or enemy combatants.
“The information provided today confirms what Republicans have been saying all along—and removes perhaps the last remaining pillar underneath the Attorney General’s collapsing argument for the civilian trial of Khalid Sheik Mohammed.
“It is clear why the Attorney General was so reluctant to provide it.
“The Attorney General assured senators that KSM’s trial in New York City was ‘in the best interests of the American people in terms of safety.’ He justified that assertion by claiming that 300 terrorists were already safely convicted and in prison. In other words, the Attorney General was saying we’ve done this 300 times before and we can do it again.
“But we now know this is simply not true. The great majority of the terrorism cases cited by the Attorney General are in no way comparable to KSM’s case. Most of the convictions in this list are for far lesser offenses, such as document fraud and immigration violations, while only a small handful concern conduct even remotely similar to a mass-casualty terrorist attack. And none are on the level of KSM, who masterminded 9/11.
“Among the cases cited is that of Zaccarias Moussaoui, which was fraught with procedural problems, delays, appeals, risks to classified evidence, and even a lone holdout juror who spared the 20th hijacker the death penalty. Due to gaps in federal law, many of the problems prosecutors encountered in the Moussaoui trial will be experienced in future terrorism trials. In fact, just this week, the Justice Department finally conceded that, contrary to the prior assertions of the Attorney General, military commissions have better safeguards than the criminal justice system to protect classified material.
“The figures released today also contradict the Attorney General’s claims on the Christmas Day Bomber: two of the terrorists on this list were placed in military custody precisely because the criminal justice system severely limits our ability to gather intelligence.
“Moreover, the overwhelming bulk of these cases are for acts committed by U.S. citizens—which KSM and the Christmas Bomber are not—and occurred before military commissions became fully operational in 2008.
“It is simply disingenuous for the Attorney General to argue that these cases demonstrate that captured enemy combatants, as classified under the 2009 Military Commissions Act, are better tried in civilian rather than military court.
“Military commissions are consistent with our laws, history, security, and values, yet there were zero military commission proceedings in 2009. There is no remaining excuse for the administration to continue rejecting them.”
[Note: please find below a list of previous requests by Judiciary Republicans on this matter over the past 10 months. Today’s letter marks the first substantive response from the Department of Justice.]
May 29, 2009: Senator Kyl wrote to Attorney General Eric Holder to request the basis of President Obama’s claim in a May 21, 2009 speech that, “our federal ‘supermax’ prisons… hold hundreds of convicted terrorists.” Specifically, Senator Kyl requested details about the names, offenses, and locations of the “terrorists” to whom the President referred. Senator Kyl’s letter explained that “a comparison of terrorists in federal prisons to terrorists detained at Guantanamo is instructive only if the severity of their actions and their backgrounds and allegiances are equivalent.”
June 17, 2009: At the Senate Judiciary Committee’s June 17, 2009 oversight hearing, Senator Kyl cited his letter to the Attorney General, noted that he had not received a response, and stated that he would be resubmitting his question in writing following the hearing:
“I had asked in a letter, that I sent back in May, for some information following up on the president’s speech, when he talked about the fact that our supermax facilities holds hundreds of convicted terrorists. I had written asking if you could break that down for us. I don’t have a response.
“So, let me just do this. I’m going to submit, for the record, a question, because I know you can’t answer just sitting there here—but to find out who—who they are, what kind of categories of folks that—that they are, if there are any that are really comparable to the high-value detainees that are at Guantanamo today, that would be very helpful to us.”
June 24, 2009: Senator Kyl renewed the request from his letter through a written question to Attorney General Holder following the Judiciary Committee’s June 17, 2009 oversight hearing. On October 29, 2009, the Department of Justice replied to Senator Kyl’s question with a non-responsive answer. Specifically, Assistant Attorney General Ronald Weich stated that the Department could not provide a list of inmates due to federal regulations. He went on to say, “A number of individuals with a history of, or nexus to, international or domestic terrorism are currently being held in federal prisons, each of whom was tried and convicted in an Article III court. The Attorney General considers all crimes of terrorism to be serious.”
November 18, 2009: At the Committee’s November 2009 oversight hearing, Senator Sessions asked Attorney General Holder if he would commit to answering Senator Kyl’s requests and noted Attorney General Holder’s claim that some 300 inmates in federal custody had been convicted of terrorism charges. Attorney General Holder responded, “I will supply you with those 300 names and what they were convicted of. I’ll be glad to do that.”
November 25, 2009: Senator Sessions submitted the following written question to Attorney General Holder to obtain a response to the then-6 month old questions about the administration claims on terrorists in BOP custody:
“In your opening testimony, you stated that ‘there are more than 300 convicted international and domestic terrorists currently in Bureau of Prisons custody.’ In response to my question, you stated without reservation that you would provide the details regarding these convictions. Please provide the details regarding each of these convictions, including: (a) the names and dates of the individuals convicted; (b) the offense(s) with which they were charged; (c) the offense(s) for which they were convicted; (d) the sentences imposed; and (e) the year the criminal case was instituted via indictment.”
The top Republican on the Senate Judiciary Committee criticized the decision to delay a scheduled oversight hearing with Attorney General Eric Holder Tuesday, taking the opportunity to flesh out his disagreements with the way the Justice Department has handled terrorism cases under Holder’s leadership.
“The last time Attorney General Holder testified before the Senate was November 18th of last year. Then in late January, following revelations that the Christmas Bomber had been hastily Mirandized — without consulting the relevant intelligence agencies — Republicans called for an immediate hearing with the Attorney General,” Sen. Jeff Sessions (R-Ala.) said in a statement. “Unfortunately, that hearing was never held. We were told instead that we would have an opportunity to question Attorney General Holder at a planned oversight hearing in March.”
“Now that won’t happen either. But while this hearing has been delayed, the Attorney General cannot delay action to repair his broken policies,” Sessions added.
DOJ aides were intently preparing Holder for the hearing on Monday evening when the Senate Judiciary Committee announced the oversight hearing would be postponed to allow senators to attend the White House signing ceremony of the newly passed health care law. Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, attended the signing ceremony .
Sessions’ full news release is below.
WASHINGTON—U.S. Senator Jeff Sessions (R-AL), Ranking Member of the Senate Judiciary Committee, made the following comments today after it was announced that Attorney General Eric Holder’s appearance at a Department of Justice oversight hearing, originally scheduled for today, would be postponed until April:
“The last time Attorney General Holder testified before the Senate was November 18th of last year. Then in late January, following revelations that the Christmas Bomber had been hastily Mirandized—without consulting the relevant intelligence agencies—Republicans called for an immediate hearing with the Attorney General. Unfortunately, that hearing was never held. We were told instead that we would have an opportunity to question Attorney General Holder at a planned oversight hearing in March.
“Now that won’t happen either. But while this hearing has been delayed, the Attorney General cannot delay action to repair his broken policies.
“The American people need to know what road Attorney General Holder will take: Will he continue to needlessly reject military commissions and to treat terrorists like common criminals? Or will he utilize the lawful military justice system as a crucial resource in the war on terror?
“Just last week, Attorney General Holder suggested that Osama Bin Laden might receive the same legal treatment as Charles Manson. This statement failed to recognize the extraordinary legal and security differences between a domestic killer and the foreign leader of an international terrorist network with which we are at war.
“Does he really believe that if we capture Bin Laden — or any of his top deputies—the first question we should ask them is if they want a lawyer?
“And just last night we finally received the Department of Justice’s response to the written questions submitted after the Attorney General’s November testimony. In those responses, the Department of Justice concedes that military commissions have better safeguards than criminal trials for protecting classified information — contradicting the Attorney General’s own testimony.
“It’s time for the Attorney General and the Obama Administration to utilize the nearly 10 years of effort that went into establishing military commissions after 9/11. Congress passed legislation and we even built an ideal site for these trials with a multi-million dollar courthouse at Guantánamo Bay.
“Military justice is consistent with our history, our laws, our security, and our values. Failing to utilize it jeopardizes needed intelligence and is a dangerous deviation from the longstanding principles of war.”
Two Republican members of the Senate Judiciary Committee fired a warning shot at Attorney General Eric Holder in a letter Friday, giving him notice that they intend to press him at an oversight hearing next week on several Supreme Court briefs he signed that he previously failed to disclose to the panel.
A story on The National Review’s Web site last week criticized Holder for not disclosing to the committee during his confirmation hearings two amicus briefs he signed with other former Clinton administration officials in the high-profile terrorism case of Jose Padilla. Several news sites later reported the omission of two additional briefs. The DOJ subsequently turned over those records to the Senate and apologized for the omission.
In the letter Friday, Jeff Sessions of Alabama and Jon Kyl of Arizona wrote that they will question Holder at the Judiciary Committee’s March 23 hearing on “the apparent contradictions” between his current views on terrorist detention and what he previously expressed in the briefs.
“Having now reviewed these briefs, we are concerned that some of the arguments contrast sharply with statements you made as Attorney General in defense of civilian trials for Khalid Sheikh Mohammed (KSM) and his fellow 9/11 co-conspirators,” the senators wrote. “Your brief also contrasts with the administration’s defense of its interrogation and civilian criminal handling of the Christmas Day bomber, Umar Farouk Abdulmutallab.”
They continued: “We agree with your pre-confirmation acknowledgment that there are national security risks associated with putting terrorists into our civilian criminal justice system. But we are troubled that, as Attorney General, you appear to have minimized and understated these risks in an effort to justify the administration’s flawed detention, interrogation, and prosecution policies.”
Read the full letter below:
Dear Attorney General Holder:
On March 10, we learned through media reports that you had submitted two amicus briefs to the Supreme Court in support of Jose Padilla, a U.S. citizen suspected of working with al Qaeda to carry out a terrorist plot on U.S. soil. The Padilla matter was a high-profile case broadly addressing national security authorities in an ongoing war. Nevertheless, you failed to disclose your participation in response to the Senate Judiciary Committee’s questionnaire during your confirmation process.
A Department of Justice spokesman said that the Padilla briefs were “unfortunately and inadvertently” not submitted to the Committee. Two days later, on March 12, Mr. Weich identified additional Supreme Court briefs that were not provided to the Committee during the confirmation process. These include four other Supreme Court briefs where you were listed as an amicus party. Thus, absent further revelations, your questionnaire appears to have omitted two-thirds of your work as an amicus party before the Supreme Court. Also missing from your questionnaire response were two Supreme Court filings where you served as counsel.
The failure to identify and disclose the Padilla briefs is particularly significant, given the important issues that case presented regarding the President’s detention authority. Your personal views on these issues — as set forth in the friend of the court briefs submitted in your name — was particularly relevant to the role that you, as Attorney General, now play in shaping detention policies and defending those policies in court. There can be no doubt that, had you submitted these briefs as required, members of the Committee would have asked you about them.
Having now reviewed these briefs, we are concerned that some of the arguments contrast sharply with statements you made as Attorney General in defense of civilian trials for Khalid Sheikh Mohammed (KSM) and his fellow 9/11 co-conspirators. Your brief also contrasts with the administration’s defense of its interrogation and civilian criminal handling of the Christmas Day bomber, Umar Farouk Abdulmutallab.
Last November, you defended your decision to prosecute KSM in the civilian criminal system by arguing that your chosen venue was “most likely to obtain justice for the American people.” When pressed on how you could guarantee successful prosecution, you boldly asserted that “failure is not an option.” You testified that you did not believe there was any meaningful risk that the detainees you were ordering to the United States for trial might be eventually released. With regard to the Christmas Day bomber, you defended your decision by writing that you were “confident that the decision to address Mr. Abdulmutallab’s actions through our criminal justice system has not, and will not, compromise our ability to obtain information needed to detect and prevent future attacks.”
One of the Padilla briefs submitted in your personal capacity paints a very different picture of the inherent risks and tradeoffs that come with handling terrorists through the civilian system. In your Padilla brief, you acknowledged “limitations” that “might impede the investigation of a terrorist offense in some circumstances” and explained:
It is conceivable that, in some hypothetical situation, despite the array of powers described above, the government might be unable to detain a dangerous terrorist or to interrogate him or her effectively. But this is an inherent consequence of the limitation of Executive power. No doubt many other steps could be taken that would increase our security, and could enable us to prevent terrorist attacks that might otherwise occur. But our Nation has always been prepared to accept some risk as the price of guaranteeing that the Executive does not have arbitrary power to imprison citizens.
We agree with your pre-confirmation acknowledgment that there are national security risks associated with putting terrorists into our civilian criminal justice system. But we are troubled that, as Attorney General, you appear to have minimized and understated these risks in an effort to justify the administration’s flawed detention, interrogation, and prosecution policies.
In light of recent revelations about this brief and others that were not disclosed in your questionnaire responses to the Senate Judiciary Committee, I respectfully ask that you respond to the following questions:
(1) In the questionnaire submitted to the Senate Judiciary Committee prior to your confirmation hearing, you disclosed three amicus briefs but not the briefs in support of Jose Padilla or the four other cases where you have now been identified as an amicus party. Why did you not disclose to the Committee your involvement in these cases on your nomination questionnaire? To the extent that the omissions were inadvertent, please: (a) describe the process by which your responses were prepared; (b) identify all individuals involved in that process; and (c) state whether you reviewed all responses for completeness and accuracy before submitting them to the Committee.
(2) Aside from the briefs, described in this letter, that were not submitted as required by the Senate Judiciary Committee questionnaire (Question 14(e)), are all other answers on your nominee questionnaire complete and accurate? If not, please submit any necessary corrections and/or supplemental materials.
(3) As described above, the 2004 amicus brief and its acknowledgment that the civilian system may render the government “unable to detain a dangerous terrorist or to interrogate him or her effectively” contrasts sharply with your November 2009 testimony before the Senate Judiciary Committee and the administration’s defense of its handling of the Christmas Day bomber. If you can, please reconcile these two seemingly contradictory positions on the risks posed by the civilian criminal system in terrorism cases, as well as which of these philosophies has informed the Department’s decisions in detainee matters.
Thank you in advance for your consideration of this matter. We respectfully ask you to respond to these questions prior to your next appearance before the Committee on Tuesday, March 23.
Attorney General Eric Holder turned over to the Senate half a dozen Supreme Court briefs he failed to disclose during his confirmation process more than a year ago.
“We regret the omission,” Assistant Attorney General Ronald Weich said in a letter accompanying the list of amicus briefs not included in Holder’s Senate questionnaire, as required. Also included on the list, sent on Friday to Senate Judiciary Committee Patrick Leahy (D-Vt.), was a brief Holder submitted as counsel. (Click here for the list.)
A story on The National Review’s Web site this week criticized Holder for not disclosing a brief he signed with other former Clinton administration officials in the high-profile terrorism case of Jose Padilla. The Blog of Legal Times reported the omission of two additional briefs on Friday morning.
The department said Holder’s confirmation team mistakenly left out the briefs while preparing reams of documents for transmission to the Senate.
Senate Republicans pounced on Holder after the NRO report and continued their attack on Friday. Stephen Boyd, communications director for Sen. Jeff Sessions (R-Ala.), the committee’s ranking member, called the situation “unacceptable.”
“Now that the Attorney General has finally provided the Committee with these important documents some 14 months after they should have been turned over, we can begin the discussion of the critical and substantive questions raised by these briefs,” he said.
Holder is scheduled to appear before the committee for a March 23 oversight hearing.
Attorney General Eric Holder’s critics have turned to a friend-of-the-court brief he signed in 2004, espousing the view that the danger of a too-powerful Executive Branch outweighs the risk of losing intelligence in terrorism cases prosecuted in civilian courts. (h/t Politico)
The brief, filed in the case of Jose Padilla, argued that the president does not have the authority to imprison a U.S. citizen indefinitely and without access to counsel or courts. Padilla, suspected of plotting a dirty bomb attack, was detained as material witness in May 2002 and shunted into military custody about a month later. (He was later removed to the criminal justice system, prosecuted and was convicted in 2007 of conspiracy to murder, kidnap and maim people and two counts of providing material support to terrorists.)
Two of Holder’s most prominent critics from the Bush administration, former Deputy White House Counsel Bill Burck and Press Secretary Dana Perino, highlighted the brief in this March 10 story in the National Review. The brief adds a new wrinkle in the debate over the Obama administration’s handling of the so-called Christmas Day bomber Umar Farouk Abdulmutallab, while providing Holder’s adversaries another peg for criticism: Holder did not report the brief on his Senate questionnaire despite a requirement to do so.
Justice Department spokesman Matthew Miller told Politico that “the brief should have been disclosed,” but had been “ unfortunately and inadvertently” left out in the documents submitted to the Senate Judiciary Committee before Holder’s confirmation hearings.
“In any event, the Attorney General has publicly discussed his positions on detention policy on many occasions, including at his confirmation hearings,” Miller said.
That is unlikely to be the last word on the subject. Sen. Jeff Sessions (R-Ala.), the ranking member of the judiciary committee, issued a statement Thursday morning saying he was “deeply concerned” about the lapse.
“Not only was the Attorney General required to provide the brief as part of his confirmation, but the opinions expressed in it go to the heart of his responsibilities in matters of national security,” Sessions said. “This is an extremely serious matter and the Attorney General will have to address it immediately.”
The Obama administration has argued vigorously that placing bombing suspect Abdulmutallab in the custody of the FBI in no way limited intelligence-gathering efforts. Agents read the 23-year-old Nigerian his Miranda rights after about an hour of questioning, and he went silent.
Republicans argued he should have been transferred to to military custody and interrogated without benefit of the right to remain silent. The administration has countered that the suspect has begun cooperating with authorities and has provided a valuable stream of intelligence ever since.
The brief in the Padilla case said that the civilian justice system may pose obstacles to detention or intelligence-gathering, but that such risks represent “an inherent consequence of the limitation of Executive power.”
The NRO piece breaks out the key passage:
[We] recognize that these limitations might impede the investigation of a terrorist offense in some circumstances. It is conceivable that, in some hypothetical situation, despite the array of powers described above, the government might be unable to detain a dangerous terrorist or to interrogate him or her effectively. But this is an inherent consequence of the limitation of Executive power. No doubt many other steps could be taken that would increase our security, and could enable us to prevent terrorist attacks that might otherwise occur. But our Nation has always been prepared to accept some risk as the price of guaranteeing that the Executive does not have arbitrary power to imprison citizens.
Read the full brief below.