Statement Of Sen. Patrick Leahy (D-Vt.),

Chairman, Senate Judiciary Committee,

Hearing On The Nomination Of Mark Filip To Be Deputy Attorney General

December 19, 2007

 

 

The Committee today will hear from the Administration’s nominee to be the Deputy Attorney General, the number two position at the Department of Justice.  Indeed, in the absence of the Attorney General, the Deputy acts as the Attorney General. 

 

The critical work of restoring the Department’s independence and credibility has been deterred by the Administration.  This Administration has known since at least May 14, 2007, when Mr. McNulty announced that he was resigning, and should have known for weeks before, that there was to be a vacancy in the important position we consider today.  Yet even after the former Deputy announced his resignation and proceeded to resign months later, the Administration failed to work with the Senate to fill this vital position.

 

Paul McNulty was one of many high-ranking Department officials, along with former Attorney General Gonzales, who resigned during this Committee’s investigation into the firing of well-performing United States Attorneys for partisan, political purposes.  Those firings and our investigation point to political operatives from the White House interfering with and corrupting the Department’s law enforcement functions for partisan, political purposes.  This nomination comes during a crisis of leadership that has done more than take a heavy toll on the Department’s morale and tradition of independence.  It has also shaken the confidence of the American people and Congress that the Department will uphold the bedrock principle – deeply embedded in our laws and our values – that no one, not even the President, is above the law.    

 

I announced that we would hold this hearing today, before Congress adjourns for the year, immediately upon receiving this nomination from the White House and the necessary background materials.  The Committee will seek to move as expeditiously as possible.  We will want to know whether this appointment will help restore the independence of the Department of Justice and strengthen the rule of law. 

 

Every time we seem to reach a new low in this Administration’s arrogant flaunting of the rule of law and constitutional limits on Executive Power, we learn startling new revelations about the extent to which some will go to avoid accountability, undermine oversight and stonewall the truth.  Two weeks ago, we learned that the CIA destroyed videotapes of detainee interrogations.  And just this morning, in a regrettably familiar pattern, we learned that the involvement of senior Administration officials seems to have been much more significant than it appeared from their initial denials.  These revelations are leading to additional investigations by Congress and the courts. 

 

As the Ranking Member on this Committee from 2001 through 2006, I was not informed of the existence of the videotapes or of their destruction.  I do not believe the Republican Chairmen were either.  I have repeatedly sought information about the Administration’s interrogations of detainees, including during the consideration of the Mukasey nomination to be Attorney General and in my October 25, 2007, letter to the White House counsel, which I ask be made part of the record.

 

Early last week I sent a bipartisan letter with Senator Specter to the Attorney General seeking information about the involvement of the Department of Justice with those matters before the public revelation of the tapes’ destruction and how the Attorney General intended to determine whether to appoint a special counsel to conduct the investigation and potential prosecutions for obstruction of justice and obstruction of Congress.  Regrettably, the reply we received evidences none of the commitment to work with this Committee that we heard during the Attorney General’s recent confirmation hearing.  The response showed no appreciation for the oversight role of the Congress. I will make that exchange of letters part of the record.   Since then I have seen that the Department has also demanded that the Intelligence Committees of the Congress cease their independent investigations and that the courts not proceed to determine whether this Administration has violated court orders or been less than candid in court proceedings.  That is not the way to restore the Department’s credibility.  That all appears to be an effort to prevent accountability and to undermine checks and balances.

 

U.S. District Judge Henry Kennedy yesterday rejected the Administration’s demands, ordering the Administration to appear in court this week to determine whether it violated his 2005 order that it was to preserve all evidence related to the mistreatment of detainees. 

 

Senator Specter and I are both former prosecutors.  We were not asking the Attorney General to prejudice a criminal investigation and were not seeking to intervene in it.  Rather we and this Committee have constitutional responsibilities that we need to fulfill.  Those duties are entitled to respect, as well. 

 

My fear is that the pattern of unaccountability and excuse by this Administration will continue.  They have shown a proclivity to paper over misconduct with legal opinions from the Department of Justice.  These legal opinions, like the infamous, withdrawn Bybee memo on torture, are wrong.  In the words of Jack Goldsmith, a former head of the Office of Legal Counsel, who discovered this legal mess of extreme opinion, they have an “unusual lack of care and sobriety in their legal analysis,”  they rest on “cursory and one-sided legal arguments that failed to consider Congress’s competing wartime constitutional authorities, or the many Supreme Court decisions potentially in tension with the conclusion,” and  “could be interpreted as if they were designed to confer immunity for bad acts.” 

 

As we recently learned not from the Administration but from The New York Times, soon after the last Attorney General took over, the Department of Justice secretly endorsed and reinstated combinations of the harshest interrogation tactics as legal.  They apparently gave legal approval to brutal interrogation techniques, including waterboarding.  Former Deputy Attorney General James Comey predicted that the Department would end up being “ashamed” of such actions when the public learned of them.  

 

Whether Mark Filip will follow the example of integrity and independence of others like Elliot Richardson and William Ruckelshaus, who resigned or were fired rather than interfere with the investigation of wrongdoing of the Nixon Administration, is a critical question.  We are reminded by those examples that law enforcement officials must enforce the law without fear or favor to their benefactors at the White House or their political party.  We have been reminded all too recently by the Gonzales Justice Department what happens when the rule of law plays second fiddle to a President’s policy agenda and the partisan desires of political operatives. 

 

In light of this Administration’s troubling record of thwarting checks and balances, I want to be confident that this Deputy Attorney General will be independent in enforcing the rule of law on crucial issues like the destruction of the CIA tapes and the legal cover given to torture.  A newly independent Justice Department must reexamine these issues guided only by the law and by our American values, not by the flawed policies and past acts of this Administration.   I want to be assured that this Deputy Attorney General does not envision a system where a President’s overbroad and invalid claims of executive privilege cannot be tested in a court of law.

 

I hope that Mark Filip reassures us that he understands that the duty of the Deputy Attorney General is to uphold the Constitution and the rule of law — not to work to circumvent it.  Both the President and the nation are best served by a Justice Department that provides sound advice and takes responsible action, without regard to political considerations — not one that develops legalistic loopholes to serve the ends of a particular Administration.   

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