<DOC> [109 Senate Hearings] [From the U.S. Government Printing Office via GPO Access] [DOCID: f:31446.wais] S. Hrg. 109-722 CONFIRMATION HEARING ON THE NOMINATION OF PAUL J. MCNULTY, OF VIRGINIA, TO BE DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE ======================================================================= HEARING before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS SECOND SESSION __________ FEBRUARY 2, 2006 __________ Serial No. J-109-125 __________ Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 31-446 PDF WASHINGTON : 2006 ------------------------------------------------------------------ For sale by Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2250. Mail: Stop SSOP, Washington, DC 20402-0001 COMMITTEE ON THE JUDICIARY ARLEN SPECTER, Pennsylvania, Chairman ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin JOHN CORNYN, Texas CHARLES E. SCHUMER, New York SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois TOM COBURN, Oklahoma Michael O'Neill, Chief Counsel and Staff Director Bruce A. Cohen, Democratic Chief Counsel and Staff Director C O N T E N T S ---------- STATEMENTS OF COMMITTEE MEMBERS Page Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts.................................................. 4 prepared statement........................................... 112 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 5 prepared statement........................................... 115 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania................................................... 1 PRESENTERS Allen, Hon. George, a U.S. Senator from the State of Virginia presenting Paul J. McNulty, of Virginia, Nominee to be Deputy Attorney General, Department of Justice........................ 1 Warner, Hon. John, a U.S. Senator from the State of Virginia, presenting Paul J. McNulty, of Virginia, Nominee to be Deputy Attorney General, Department of Justice........................ 3 STATEMENT OF THE NOMINEE McNulty, Paul J., of Virginia, Nominee to be Deputy Attorney General, Department of Justice................................. 7 Questionnaire................................................ 9 QUESTIONS AND ANSWERS Responses of Paul J. McNulty to questions submitted by Senators Grassley, Sessions, Leahy, Kennedy, Kohl, Feingold, Schumer, and Durbin..................................................... 54 Responses of Paul J. McNulty to follow-up questions submitted by Senator Durbin................................................. 105 SUBMISSION FOR THE RECORD Canterbury, Chuck, National President, Fraternal Order of Police, Washington, D.C., letter....................................... 111 NOMINATION OF PAUL J. MCNULTY, OF VIRGINIA, TO BE DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE ---------- THURSDAY, FEBRUARY 2, 2006 United States Senate, Committee on the Judiciary, Washington, D.C. The Committee met, pursuant to notice, at 10:05 a.m., in room SD-226, Dirksen Senate Office Building, Hon. Arlen Specter, Chairman of the Committee, presiding. Present: Senators Specter, DeWine, Sessions, Leahy, Kennedy, Schumer, and Durbin. OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Chairman Specter. The Judiciary Committee will now proceed with the hearing for the nomination of Paul J. McNulty, to be Deputy Attorney General for the Department of Justice. We have waited just a few moments here for Senator Warner, who had been on the premises. But it is five after, so we have Senator George Allen, our distinguished colleague, with us. So let us proceed with your introduction, Senator Allen. PRESENTATION OF PAUL J. MCNULTY, NOMINEE TO BE DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, BY HON. GEORGE ALLEN, A U.S. SENATOR FROM THE STATE OF VIRGINIA Senator Allen. Thank you, Mr. Chairman and members of the Committee. I thank you for the opportunity to appear before this Committee to relate to you and tell you about my friend, Paul McNulty. He is here today with his wife, Brenda, and two of their four children, Annie and Corey. Their two oldest children are in college. One is a freshman--Joe is a freshman at James Madison University, over in the Shenandoah Valley of Virginia. Let me just say one thing personally before I get into the attributes about Paul McNulty. In the midst of preparing for this trial, or this hearing, his mother passed away and they had the funeral earlier this week. Today would actually be her 82nd birthday. Our thoughts and prayers are with Paul, and we know that his mother is looking down, joining her husband who passed away a few years ago, and looking down with pride on their son, Paul, and his opportunity to continue to serve this country. I have known Paul since the days I was Governor. One of the key things we tried to do, and successfully did in Virginia was abolish the lenient, dishonest parole system and institute truth in sentencing. Paul McNulty was one who I counted on as a very loyal, expert, knowledgeable adviser. And thanks to those reforms we made in Virginia, Virginia is safer. Back in 2001, my colleague, Senator Warner, who will be here undoubtedly, we had the honor of recommending to President Bush the nomination of Paul McNulty to be U.S. Attorney for the Eastern District of Virginia. The Senate confirmed Paul McNulty on September 14, 2001, just after we were attacked by the terrorists. The U.S. Attorney's office in the Eastern District of Virginia has played a central role in the war on terrorism ever since. Now, there is not time to talk about all the different important terrorism cases that Paul has been involved in and has prosecuted since he has been in office, but let me relate to the Committee two of these cases that Paul has overseen personally during his time as U.S. Attorney. First, of course, is the case of Zacarias Moussaoui. I know that the Chairman joined me in saying let's make sure that the families could somehow view those proceedings since the victims' families are all over the country. Paul was engaged in this effort in unprecedented victim outreach in connection with that case. Over the years since Moussaoui was indicted, Paul's office has interviewed over 2,000 victims and maintained regular contact with more than 5,000 victims or family members. This effort, I think, demonstrates Paul's compassion for the victims of crime and his long-standing commitment to victims rights. Also, last November, Paul's office obtained a conviction of Ahmed Omar Abu Ali, an American citizen who joined an al Qaeda cell. Abu Ali had plotted to assassinate the President and hijack airplanes. As Paul has said, the evidence presented during that trial proved that Abu Ali was a, quote, ``dangerous terrorist who posed a grave threat to our national security.'' The sentencing hearing will be later on this month, but Abu Ali faces a minimum sentence of 20 years for this crime. Under Paul's leadership, the U.S. Attorney's office in the Eastern District of Virginia has accomplished a great deal in traditional law enforcement areas, working with localities in the State combatting gangs. The Eastern District of Virginia led the Nation in the prosecution of gun crime for the past 3 years, it lead the Mid-Atlantic region in drug trafficking prosecutions, and also dismanted a high-tech piracy group that operated servers around the world distributing millions of dollars worth of illegal software and movies. Paul has accomplished these things by promoting a series of initiatives, and what I think was very important, drawing upon the resources of other Federal agencies, as well as developing close working partnerships with State and local law enforcement. I am pleased, Mr. Chairman, to say to you that I think that the President has chosen very well in nominating someone with a strong background in prosecuting terrorism for this important position as Deputy Attorney General. Paul will be a thoughtful, knowledgeable, decent, caring, excellent addition to the Department of Justice as we continue to fight the global war on terror and keep Americans safe. I hope, Mr. Chairman, that you all have a good hearing, and I respectfully urge you all to move as quickly as possible. Paul McNulty has my very strongest recommendation for this position. I thank you so much for allowing me to be here, and now I am joined--as I said, he would be here directly and here he is, the senior Senator from Virginia. Chairman Specter. Thank you very much, Senator Allen. We knew that Senator Warner was on the premises and we waited to accorded him the status as senior Senator. We later heard that he had commitments in the Intelligence Committee. So we welcome you here, Senator Warner, and look forward to your testimony. PRESENTATION OF PAUL J. MCNULTY, NOMINEE TO BE DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, BY HON. JOHN WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA Senator Warner. Let the record show I was here at precisely 9:28 this morning. Mr. Chairman, I have listened to my distinguished friend and colleague here give a very comprehensive statement. I will just ask unanimous consent to place my statement in the record. Chairman Specter. Without objection, it will be made a part of the record. Senator Warner. Mr. Chairman, you and I came up through the prosecutorial ranks of the various departments that we have served in, in the Justice Department, and as I look on this distinguished public servant's career, it is really extraordinary. He has had the background and the experience to take on the challenging tasks in the Department of Justice to which our President has appointed him. He has my whole-hearted support. I assure this Committee that he will fulfill, and even exceed the expectations that all of us have as to his capability, knowledge of the law, respect for fairness and equality of justice for all. So with that, Mr. Chairman and distinguished ranking member, Mr. Kennedy, I will put in my statement and you can get on with your hearing. Chairman Specter. Thank you very much for being with us Senator Warner, Senator Allen. Mr. McNulty is a Virginian at the moment. He is also a Pennsylvanian. He was born and raised in Pennsylvania, and if he were being presented to the Armed Services Committee, I might be presenting him instead of Senator Warner and Senator Allen. Senator Allen. Notwithstanding that background, we did endorse him for being U.S. Attorney for the Eastern District of Virginia. He had a breadth of experience. Chairman Specter. Your endorsements are very amendable. Senator Warner. Mr. Chairman, Senator Allen and I have been working with the White House and the Department of Justice on the successor. 29 individuals came forward to apply for this position, partially because of the extraordinary heritage that this distinguished gentleman left in that office. Hopefully, we will be making that announcement together with the President soon as to his successor. I thank you. Chairman Specter. Thank you very much, Senator Warner. Thank you very much, Senator Allen. Paul McNulty comes to the proceedings today with an outstanding record, a graduate of Grove City College, 1980, Capital University Law School in 1983. Extensive experience as a prosecutor, has been the United States Attorney since 2001, and before that was the Principal Associate Deputy Attorney General, was Chief Counsel to the Office of Majority Leader of the House of Representatives. He is an adjunct professor from Grover City College. I will ask without objection that his extensive biographical material be made a part of the record. The position of Deputy Attorney General is one of enormous importance, as the administrative officer right behind the Attorney General on the Department of Justice, which has so many, many responsibilities. Before swearing in, Mr. McNulty, let me ask Senator Kennedy if he has any opening comments. STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS Senator Kennedy. Thank you, Mr. Chairman. I know we are going to be joined by Senator Leahy in just a few moments. If I could just take a moment to welcome Mr. McNulty. I understand you served on the Legal Service Program, and you also received the O'Neill award, as a student. If that is after Tip O'Neill, I would be interested in the reach of that award. I would like to put my full statement in the record. I think you are very much aware of the issues about the extent of Executive power and authority that is part of the national debate and discussion at the present time. You are going to be in a very important position on advising on the legality and the justification for that kind of authority, the whole range of accountability on prosecutions in the CIA, I am interested in how you dealt with those individuals. The President has spoken of accountability, and a number of these individuals that have been turned over from the CIA to your shop for processing and for prosecution. I want to hear you on this issue because this is enormously important for obvious reasons. The range of civil rights issues--what the Department has been doing, what it has not been doing, the selection of various individuals in the Civil Rights Division, particularly the provisions of the Voting Rights Act, the cases that were brought and not brought. The areas of immigration, the difficulty and the complexity that we are finding now, that has raised enormous kinds of challenges since the procedures were changed by the Attorney General, and that raised concerns as to the fairness and integrity of this process. These are just some of the very important areas that you will have, and do have, and have had important responsibilities for, and we are looking forward to hearing you out on some of these issues. I will put my full statement in the record and look forward to the question and answer period. I thank the Chair. I ask that the full statement be put in the record. Chairman Specter. Thank you, Senator Kennedy. Your full statement will be made a part of the record. [The prepared statement of Senator Kennedy appears as a submission for the record.] Chairman Specter. I now yield to the distinguished ranking member, Senator Leahy. STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Senator Leahy. Thank you, Mr. Chairman. I apologize for the delay, but I have been working, as you know, along with Senator Durbin and others on the PATRIOT Act. As has already been said, of course, this is for the No. 2 position. The previous deputies, James Comey and Larry Thompson, had extensive experience as prosecutors. When Tim Flanagan was proposed for this, I questioned the fact that he did not have experience. I am worried that neither the current Attorney General, nor the Associate Attorney General, nor the Assistant Attorney General chosen to head the Criminal Division, nor the Solicitor General, had real experience as a prosecutor before going to the top law enforcement office in the country. The President withdrew Mr. Flanagan's nomination. Of course, anyone who reads the papers still sees the questions regarding that nomination. I joined Senator Durbin in a letter yesterday to the Attorney General about the role that Mr. Flanagan's dealings with Jack Abramoff and David Safavian played in that decision. We will see whether I get a response back. The Justice Department rarely responds to my letters, notwithstanding their Attorney General's pledge under oath at his confirmation hearings to be more responsive. Mr. McNulty does come to us as the Acting Deputy Attorney General and a U.S. Attorney for the Eastern District of Virginia, so he has had supervisory experience with criminal matters. I am not sure how many cases he has personally prosecuted, but I think as Deputy Attorney General, prosecutorial experience and prosecutorial judgment is going to be sorely tested. There are a lot of very delicate investigations that you have to oversee, and prosecutorial experience will be beneficial, may be critical, and the reason I keep mentioning this, Mr. McNulty, is that nobody else has prosecutorial experience. You have had supervisory prosecutorial experience, and that is a plus. We would like to see more, especially when the President has such an expansive view of his power, and the Justice Department is the only place left that might serve as a check if that power is being used illegally. The most recent Deputy Attorney General, James Comey, a respected prosecutor and a long-time Republican, seemed to many to have taken that position very seriously, and he appointed a committed, independent prosecutor to carry out investigations within the Bush administration. He questioned the President's authority to conduct warrantless wiretapping. He defended career attorneys who sought to put the brakes on over expansive assertions of Executive power. He refused to be a ``yes'' man, and of course, he got pushed out of the Department. Unfortunately, the position of Deputy is one where you are supposed to be willing to speak truth to power and not be a ``yes'' man. In fact, that is why I voted against the current Attorney General, because I felt that he would not be willing to say no to anything from the White House. I know the importance of that. Ultimately the Attorney General's duty is to uphold the Constitution and the rule of law, and not labor to circumvent it. Both the President and the Nation are best served by an Attorney General who gives sound legal advice and takes responsible action without regard to political considerations, not one who develops legalistic loopholes to serve the ends of a particular President or administration. That holds true for the Deputy Attorney General, and that holds true whether it is a Democratic or Republican administration. We see the extraordinary rendition of prisoners to the ``black site'' prisons in the former Soviet Union, something that every President, Republican and Democrat, had condemned before this administration. Now we are doing it. We saw the scandal of Abu Ghraib. We saw the withdrawn torture memo, and we saw the outgoing Justice of the Supreme Court remind us all very forcefully that nobody is above the law, not even this President, not even at a time of war. I first met Mr. McNulty while he was serving as staff for Republicans on the House Judiciary Committee. I remember you as an extraordinarily hard-working person, and I suspect you still are. I would hope that you would be able to follow Mr. Comey's example of independence and the example of other Republicans like Elliot Richardson and William Ruckelshaus, who left rather than violate their principles and the law. The Eastern District has been the go-to district for terrorism prosecutions, national security issues, and detainee abuse allegations. I think we need to understand how much you would be willing, even under those circumstances, to question any assertions of presidential power and look out for the individual liberties of ordinary Americans and protecting the law. According to a recent letter from the Department of Justice to Senator Durbin, since the beginning of the war in Afghanistan in 2001, 20 allegations of detainee abuse by American civilians, 20, have been referred to the Department of Justice. All but one of these cases have been assigned to your district with a task force under your supervision. Only one of these allegations has resulted in an indictment, and that one, incidentally, was the one sent to a different district than yours. These have hurt American credibility in the world. The press reports say these referrals include one case in which a detainee was killed in CIA custody within 45 minutes of the beginning of interrogation, and the CIA's own Inspector General found the possibility of criminality. It has been 18 months since the creation of the task force to investigate these. I want to know why, when the military has prosecuted detainee abuse cases--and the Eastern District of North Carolina has returned the one indictment so far--nothing has come out from your task force. I want to know about the President's warrantless domestic spying program, how you have responded to this. We all want to help stop terrorists. I helped write and pass the USA PATRIOT Act. I am working on ways to get it re-authorized, but we have to have some honest answers if we are going to be able to do that, and if it is going to have credibility so the American people can trust it. Mr. Chairman, I went over my time, but I appreciate your consideration allowing that. Chairman Specter. Thank you very much, Senator Leahy. Mr. McNulty, if you would now stand for the administration of the oath. Do you solemnly swear that the testimony that you will give before this Judiciary Committee will be the truth, the whole truth and nothing but the truth, so help you God? Mr. McNulty. I do. Chairman Specter. Thank you. Mr. McNulty, let us begin with the introduction of your family. I see some beautiful people sitting behind you. I infer they are your family. We do not ordinarily have people of that beauty here, so if you would introduce your family, we would appreciate it. [Laughter.] Mr. McNulty. Thank you very much, Mr. Chairman, and Senator Leahy, Senator Kennedy, Senator Durbin, for welcoming me here today. I am very pleased to introduce my family to you. My wife Brenda of nearly 25 years is here with me today, and two of my four children. As Senator Allen said, two of my children are in college. We thought it best to leave them there. My daughter Annie and my daughter Corrie are here, and my niece, Carrie Quinn, is here as well, as well as a number of good friends that have made the effort to be with me today in this room. Thank you very much for giving me the opportunity to introduce them. Chairman Specter. Thank you, Mr. McNulty. We would be pleased to hear any opening statement you care to make. STATEMENT OF PAUL J. MCNULTY, OF VIRGINIA, NOMINEE TO BE DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE Mr. McNulty. Thank you, Senator. I only want to make a couple brief points, and allow you to ask your important questions to me. Mr. Chairman, in my view, there is no finer agency of Government, perhaps anywhere n the world, than the Department of Justice. When yo consider the mission of the Department of Justice, the importance of what the Justice Department is responsible for doing in protecting people's liberties and enforcing law, when you consider the men and women of the Department of Justice and the broad range of talents, the skill, the courage, the dedication that they have, when you consider the commitment to the highest professional standard that DOJ stand for and has stood for for decades, it really is an extraordinary agency of Government. And, again, there may be nothing like it in all the world. In particular, over the pst 4 years, I have had the privilege of leading about 250 men and women who are part of the Department of Justice in the United States Attorney's Office in the Eastern District of Virginia. And of all those 100,000 plus employees of the Department of Justice, these 250 or so folks, in my view, are among the finest of all of the DOJ people. Their dedication and skill and kindness is really extraordinary, and what they have accomplished over the past 4 years is a big reason why I am here today. It has been an honor and a privilege to serve them. I say that because my second point to you, members of this Committee, is that the Deputy Attorney General is entrusted to guard all of that. The Deputy Attorney General is entrusted with this extraordinary legacy that the Department of Justice has of guarding the rule of law, and I see it, if I'm confirmed, as my duty to enhance, to strengthen, to build what has been established so well over the decades. So, therefore, Mr. Chairman and members of the Committee, I pledge this to you. I pledge that if I am confirmed, that I will use all of my energies, by the grace of God, to act with integrity, to do what is right, and to be guided only by the law every day I have the opportunity and the privilege of serving as Deputy Attorney General, if I am confirmed. Thank you for your courtesy, Mr. Chairman. And I thank Senator Allen and Warner, by the way, for their kind introduction, and the President for the honor of being nominated to this very significant position. I welcome your questions to me. 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Thank you very much, Mr. McNulty. We will now proceed with our practice of 5-minute rounds for members. A key issue is our oversight authority over the Department of Justice. This is a subject which I took up in detail with the Attorney General. I sent you a letter summarizing the oversight authority of the Judiciary Committee as summarized in a CRS statement of the law, and I told you earlier this morning, when we talked briefly, that I would be asking you about it. And to quote some of the pertinent sections, the Congressional Research Authority cites the law as follows, quote: ``The Department of Justice has been consistently obliged to submit to Congressional oversight regardless of whether litigation is pending, so that Congress is not delayed unduly in investigating misfeasance, malfeasance or the maladministration in the Department of Justice or elsewhere.'' This includes, according to this summary, quote, ``The testimony of subordinate Department of Justice employees such as line attorneys and FBI field agents, which was taken formally or informally, and included detailed testimony about specific instances of the Department's failure to prosecute alleged meritorious cases.'' And the Committees have been provided with, ``documents respecting open or closed cases that include prosecutorial memoranda, FBI investigative reports, summaries of FBI interviews, memoranda and correspondence prepared during the pendency of cases,'' and it goes on. I would like your specific agreement that that does represent the authority of this Committee on oversight of the Department of Justice. Mr. McNulty. You have my agreement. Chairman Specter. Thank you. I like your brevity almost as much as I like your agreement. We are having oversight hearings, as you know, on the presidential authority on electronic surveillance, and the Attorney General will be coming in on Monday to testify. I do not intend to get into those substantive matters with you because we will be hearing from the No. 1 man in the Department. And you do not speak for the Department at this time until--well, you are Acting Attorney General, Acting Deputy Attorney General, but I do seek your response on the question of access by the Committee to legal memoranda prepared by the Office of Legal Counsel or otherwise, your view as to the propriety of the Committee having access to that in order to more fully question the Attorney General? Mr. McNulty. Senator, I understand that that's an important question that's going to be faced by the Committee and the Department of Justice. As I've just responded to you a moment ago, I have a strong commitment to the role of oversight, and to making sure that this Committee has what it needs to fulfill its responsibility. I have probably the unusual experience, as Senator Leahy referred to briefly about my experience on the Judiciary Committee. I spent 12 years on Capitol Hill, and I spent a lot of years in oversight work. I have dealt with the Department of Justice on numerous occasions. I can't even think of all the times that I was working on situations where we had to get documents or deal with the Department, and we had to work through difficult issues. Sometimes we came up with accommodations where the chairman, Ranking Member looked at things, sometimes we were able to provide more access. I'm afraid that today, sitting here, though, I'm not able to give a response about the availability of certain documents in relation to this issue because I just haven't been involved with it. I became just recently aware of the fact of what this request is. I don't know what considerations already have occurred at the Department. I know the Department will be working with the Committee to figure out how to work through that challenge, but I can't provide specific information about what can be provided or can't be provided as we sit here today. There's a long history to this availability of OLC opinions, and I have to learn more about it myself, and I certainly have to consult with others at the Department of Justice about how that's going to be worked out. Chairman Specter. Mr. McNulty, moving on to another subject, on the prosecution of the civilians on the detainee issue, we would be interested, to the extent you can tell us, what the status is of those investigations and potential prosecutions. Mr. McNulty. Thank you, Mr. Chairman. Mr. Chairman, those cases were assigned to my office for investigation about 18 months ago, as mentioned by Senator Kennedy. Deputy Attorney General Comey asked me to do it because he believed that my office had the experience and the aggressiveness to do that job. It was Deputy Attorney General's Comey's decision to ask me to do those cases. He had called upon my colleague, Pat Fitzgerald, to do a case. He had called upon David Kelley in New York to do a case. He called upon me to take on these cases. Now, there were 19 cases that have been referred to my office for investigation. The first thing I did was put together a team of the most experienced prosecutors the Department really has. There are decades of prosecutorial experience represented in the team I have working on this, career, longstanding, hard-charging prosecutors. And we took those referrals in whatever shape and condition they were in, and they were very thin in the sense of the information initially given to us, and we began to work. Now, as we've been proceeding on the course of these investigations--and they are ongoing investigations--there are a number of obstacles that we face in trying to come to the point of bringing criminal charges against individuals who have in any way been associated with an allegation of some form of abuse. The obstacles include jurisdiction. We have to deal with--we're dealing with civilians now, not military personnel. Military personnel are prosecuted under the Code of Military Justice. Civilians, who do conduct overseas, have to be prosecuted under the International Jurisdiction Statute that was established a few years ago, and that presents certain challenges in terms of bringing charges. We have issues of access to witnesses, victims. In some of our cases our victims can't be found. We have had real problems in getting access to the potential witnesses in the case. I sent a prosecutor to Baghdad for interviews, and he was outside the Green Zone for quite some time and interviewed over 15 people, and we're trying to make progress in a particular case there. We've had to wait in some cases for the military to complete its work because our witnesses were tied up with the military side of the prosecution, and you can't have collateral prosecutions in certain circumstances. You have to wait until those witnesses have testified, and then they're available. So like any complex case, time does pass as you try to work through the problems, but I assure this Committee that we are still working hard on those cases, and it may very well be that in the not-too-distant future charges will be brought. We'll bring charges when we know we have the evidence necessary to succeed. Chairman Specter. Thank you, Mr. McNulty. My time has lapsed. I will just, without objection, place into the record the letter which I wrote to you on oversight authority, make it a part of the record. I am going to have to excuse myself at this point. Senator Hatch will be arriving shortly to preside. In the interim I have asked Senator Sessions if he would preside during my absence. Now I yield to our distinguished ranking member, Senator Leahy. Senator Leahy. Mr. Chairman, I would put into the record a letter from the Fraternal Order of Police, signed by Chuck Canterbury, addressed to you and me in favor of the nomination of Mr. McNulty. Chairman Specter. Without objection it will be made a part of the record. Senator Leahy. I know when you praised the Department of Justice--and I join you in the praise of the men and women who are there--you were referring to the civilian end of our Government. You were not in any way denigrating the military end; is that correct? Mr. McNulty. No, I think that the---- Senator Leahy. I just did not want you to get caught later on. Mr. McNulty. I guess I am not familiar with all the ways you can get caught, but---- Senator Leahy. Trust me, you will learn. [Laughter.] Senator Leahy. Let me just follow up a little bit on what Senator Specter was saying on these cases that have been referred to. The reason we ask, there were 20 allegations of detainee abuse. 19 of them went to you. One went to the Eastern District of North Carolina. They were able to obtain an indictment. Were you suggesting that your primary--I do not want to put words in your mouth--but are you suggesting the primary reason there have not been indictments yet is a jurisdictional one? Mr. McNulty. No. I just raised that as one of a number of factors that has come into play with some of the referrals. Senator Leahy. The reason I ask that, obviously, in North Carolina they felt that was not a problem. The military has been able to prosecute a number of these cases, have they not? Mr. McNulty. Right. And as I mentioned, we had to let them go first in some of our allegations. Senator Leahy. And in among the referrals include one case in which a detainee was killed in CIA custody only 45 minutes after interrogations. The CIA's Inspector General found a possibility of criminality. You have had that case for 18 months. Anything you can tell us about the progress in that case? Mr. McNulty. It's an ongoing investigation. What's interesting about that case is that there were a number of Navy SEALs charged in the military context, and they were acquitted. So you see that sometimes in these cases it's very difficult, as I know you know, because of the nature of the evidence. In that particular case, those SEALs had custody over that individual prior to his delivery into the hands of anyone else. And on the case in North Carolina, that case was further along in investigation and preparation for being charged. It was charged almost immediately after the referrals were made because of the work that had been done on it. Senator Leahy. Do you think that these others will be coming to a conclusion sometime in the near future? Mr. McNulty. I think so. And to be candid with you, Senator Leahy, there may be declinations in some of the cases. Senator Leahy. I understand. Mr. McNulty. And there may be some charges in some of the cases. Senator Leahy. After 18 months, there are going to be declinations. In those cases, that decision should be made too. Mr. McNulty. That's right, Senator. We'll plow forward with all aggressiveness. Senator Leahy. Let me ask you this. There has been a lot in the press lately about the NSA domestic spying program. When did you first learn about it? Mr. McNulty. When the New York Times article came out. Senator Leahy. You did not know about it before then? Mr. McNulty. For the past 4 years I have been serving as the U.S. Attorney in Virginia. I haven't been involved in Department of Justice wide matters. Senator Leahy. After you learned about it, what did you do? Mr. McNulty. I became aware of the program. I am not in a-- read into that program, and so there is nothing more I can do in terms of action when I'm not a part of or read into the specific program itself. Senator Leahy. But if you were Deputy Attorney General you would be. Mr. McNulty. Possibly. I mean as Acting Deputy, I think it was determined, and rightly so, that it's not appropriate in an area that's so closely held. Senator Leahy. Did you see the Attorney General's 42-page white paper he released a couple weeks ago? Mr. McNulty. I did. Senator Leahy. Did you agree with everything in that paper? Mr. McNulty. I read the paper carefully, and I have to say that I found you arguments, the legal arguments that were being presented there, to be credible and compelling arguments. Senator Leahy. Did you find anything you disagree with? Mr. McNulty. I don't recall right now, Senator, of anything that I would cite as an area of disagreement. It's a general legal argument in that paper. And there may be some things that I found more compelling than others, but as an overall argument, that's the way I viewed it. Senator Leahy. I am going to give you a copy. If somebody could hand a copy of a letter that I and the other Democratic members of the Judiciary Committee sent to Attorney General Gonzales last week. We requested the contemporaneous legal opinions and other documents related to the NSA domestic spying program. Senator Specter has also raised some of the issues, and has given you a letter pointing out where such documents have been made available in investigations by appropriate committees in the past. If you are confirmed, will you release to Congress and appropriately cleared staff, and where appropriate to the public, the requested materials? Mr. McNulty. I can't make that commitment to you today, Senator. As I tried to explain to the Chairman, the decisions that have to be worked through in this request that I'm looking at--and I hadn't seen this before today, are challenging--and I'd have to consult with others at the Department of Justice as to precedence in the past and what can be released. Senator Leahy. Just one last question if I might, Mr. Chairman. Are you aware of instances in which information obtained through the domestic spying program was used in any manner in a criminal prosecution in the Eastern District of Virginia or any other district? Mr. McNulty. No, I'm not aware of that. Senator Leahy. Okay. Mr. Chairman. Senator Sessions [presiding]. Thank you, Senator Leahy. Mr. McNulty, it is a pleasure to see you. I have admired your work for a number of years. I think the experience you have had now as a United States Attorney will be particularly valuable to you in this position. Tell us briefly what the role of the Deputy Attorney General is in the vast Department of Justice. It includes far more than just line prosecutors in the Department of Justice. You have quite a good deal more to deal with. I also would note that--having been on this side of the aisle, on the congressional side as a top staff person--will that not give you some appreciation for legitimate demands of Congress on the Department of Justice to respond promptly and sufficiently to legitimate inquiries from the Congress? So I guess I will first ask you that question. Do you feel that your perspective, in being counsel in the House Judiciary Committee, would give you insight into legitimate needs of Congress, and does that make you more or less willing to be responsive? Mr. McNulty. I do think that experience is helpful in this process. I think, if nothing else, when you call me as Deputy Attorney General, if you confirm me, that I will have an immediate understanding of the process that you're going through and the responsibilities that this Committee and other committees have. I will understand and appreciate the importance of oversight. In my view the Department of Justice has to be held accountable in many different ways. We have to have a strong Inspector General. We have to have strong oversight by the Congress, including GAO, and we have whistleblowers that are a part of that oversight framework. I think all of those elements of oversight have to function well in order to hold Department of Justice accountable for its work, and we ought to be ready to be examined that way. And so it doesn't mean that some questions won't be difficult. They have been difficult for decades, and Senator Specter's letter cites a number of issues where there has been cooperation and agreement reached on oversight, but all those examples were preceded by lengthy discussions about how much should be available, sensitivity of the information, deliberative process and so forth, but accommodation was reached in each of those instances, and I think that's the long tradition of working together on this. Senator Sessions. I think Congress has a right to demand certain documents, and I think Congress has an obligation to recognize that the executive branch has the right to have internal discussions of matters that remain privileged to the Department of Justice or the President himself. My understanding of the attorney-client privilege--and you're attorneys for the executive branch--is that those documents have not been produced, that Democrat and Republican attorneys have repeatedly testified (that have served in the Department of Justice) that they should not be. And it is ultimately the documents you prepare--that the Deputy Attorneys General prepare, the Attorneys General, the Counsel to the President-- those documents are prepared as an attorney, are they not? And are those documents, your documents, or do they belong to the Government and to the Chief of the executive branch? Mr. McNulty. Right. Senator Sessions. And is that not the person that ultimately makes a decision on whether or not to release them? Mr. McNulty. That's right. Some documents that go to the very core of the deliberative process, that are sort of quintessential deliberative process work, requirements for candidacy are important. I appreciate your point about the policies in previous administrations, because I did my oversight work on the Judiciary Committee with the previous administration, and there were a number of documents that the Committee sought that we did not receive from the Department of Justice during the administration of President Clinton. Senator Sessions. You never received those documents from the Clinton administration. Mr. McNulty. No. And there were some instances where we had to accept either significant limitations or ``no,'' and that's never easy to accept. but we did get that answer on a number of occasions. Senator Sessions. It is just a complex issue, but there are some legitimate Executive concerns there that have been asserted by every President. Maybe a little later we can talk about the fact that you will be dealing, if you are confirmed as Deputy Attorney General, with many more issues than this. It is a huge supervisory management position that involves the Bureau of Prisons, the United States Attorneys, the Drug Enforcement Administration, the FBI, as well as many other agencies in the Department that is one of the most important in the country. I am glad that you have had this U.S. Attorney experience because it shows how the Department of Justice actually operates at the grass roots level. I believe Senator Kennedy would be next. Senator Kennedy. Thank you, Mr. Chairman. Good morning. Mr. McNulty, I am somewhat surprised to hear you say that these cases, these detainee cases came to you with a thin record. The case of Manadel al-Jamadi, who died in CIA custody at Abu Ghraib, was investigated extensively by the military, and the General Taguba report was 6,000 pages long. The Jones/ Fay report, which was the other--these are reports from the Armed Services Committee, of which I am a member. That report identifies two CIA employees involved. So what is the difficulty in building the case? Is the CIA cooperating and to what extent does it cooperate, first of all, and then what is the difficulty in building the case? Mr. McNulty. Senator, we're getting cooperation. I don't mean to be evasive on that one point, but I have certain classified information issues that I have to work with there, but we are getting fine cooperation from the agencies that are involved, that we're working with. When I made that point, Senator, what I was referring to is that often when you're a prosecutor you get a presentment of a case from an agency that is a notebook which lays out quite specifically the theory of prosecution, the evidence, and puts you in a position to draft an indictment rather soon after receiving the information. Referrals is a general term, and I just don't want anyone to think that referrals means it's the full presentment of the case ready to go to indictment. The reports you cited refer literally just to observations or facts that someone reporter. We have to take those observations or facts or letters and then build a case from that. We've gotten great cooperation in trying to do that. The obstacles are more the kinds of things you run into when you're doing a case on foreign soil. Senator Kennedy. Let me move on to the topic of Voting Rights enforcement, and I am just going to move through this quickly. Last August the Department granted approval for the new voter ID requirement in Georgia. This disproportionately affects African-Americans, Latinos, Native Americans. Voters were required to pay $35 to obtain a card. Those IDs were available at less than 60 locations in Georgia, which has 159 counties. The Federal District Court stopped the law because the IDs functioned as a modern day poll tax. In reaching its conclusion, the Court wrote that it had great respect for the Georgia legislature but simply had more respect for the Constitution. Those are pretty strong words about a law the Department of Justice said did not violate minority voting rights. And then the conservative 11th Circuit Court of Appeals upheld the District Court's decisions. The news reports show that the career staff and Department opposed the law because it would violate civil rights--but they were overruled by political appointees. There is yet a similar situation with a unanimous staff recommendation against approving a redistricting plan in Texas. The Texas case is going to come up to the Supreme Court next month. I understand you were not supervising voting right cases when these staff recommendations were made. We are going to have a separate Civil Rights oversight hearing, as the Chairman has indicated. But if you are confirmed, you will be in the chain of command above the Civil Rights Division, so your position on the matter is important. Just last week, Georgia passed a new voter photo ID program, which the Department has the responsibility of reviewing. The issue is whether the law will actually make it harder for minorities to exercise their vote. Do we have your assurance that you will personally notify the Civil Rights Division leadership and the Voting Section that you expect a fair review of the new Georgia law, and that you will not permit politics to trump fair civil rights enforcement? Mr. McNulty. You have that assurance. Senator, let me just add, I feel very strongly that politics can never play a role in what the Department of Justice does, and the Civil Rights Division has to be--operate always in a fair and appropriate way under the rule of law because it's the vision that really seeks to guard opportunity for every American. I will point out that the section chief of that section is a career person, who has been the one signing off on those Georgia decisions. Senator Kennedy. But you will follow that? Mr. McNulty. Absolutely. Senator Kennedy. Let me just move quickly on to this issue as well. You are familiar with the role of the Honors Program in the Department's hiring practices. That has been changed, especially in the hiring of the Civil Rights Division, where career attorneys have been totally excluded from reviewing candidates. It is now done only by political appointees. That is a dramatic change from the past. The Honors Program was originally designed to get rid of political considerations in new hiring. So will you agree that political considerations should not have a role in who is named in career positions in the Department, and if you are confirmed, will you review the Honors Program? Mr. McNulty. I will. Senator Kennedy. And work with us to guarantee that the politics is not the controlling factor? Mr. McNulty. Absolutely, Senator. I looked into this briefly because I knew this was a concern. And we may have to check the facts that you have and I have and make sure we're on the same page. Senator Kennedy. Fine. Mr. McNulty. But I understand that a career employee and a political employee are both involved in every hiring decision that's made in the Honors Program. So that's my understanding of the current policy. Senator Kennedy. If you look it over, we can talk about it later. My time has expired. I will just take a second here. Just this morning we learned of a terrible tragedy in New Bedford, Massachusetts. Three people are now in the hospital after suffering brutal attacks. The suspect allegedly walked into a bar, asking if it was a gay bar. And then the suspect started attacking customers, swinging a hatchet, and then pulled out a gun and started shooting at everyone. So this really was a crime of hate, and such acts of violence represent, I believe, domestic terrorism. Senator Smith and I, and Senator Specter have been enormously interested in hate crimes. Will you work with us? We have a current hate crimes bill. We have passed others in the Senate. We have not been able to get it into law. But will you work with us in terms of hate crimes legislation generally? I cannot ask you now for a specific position on it, but I would like to ask for your assurance that you at least will work with us in terms of that subject matter. We may not come to the same decision, but I would like assurance at least you will work with us on this issue. Mr. McNulty. Right. I will work with you. I remember the issue--I haven't thought about it recently--but I remember the issue when I worked for the House Judiciary Committee, and I will be very prepared to work with you on your efforts to try to address the question. Senator Kennedy. Thank you. Thank you, Mr. Chairman. My time is up. Senator DeWine [presiding]. Mr. McNulty, good to see you. Mr. McNulty. Good to see you, Senator, thank you. Senator DeWine. You have a distinguished record. You and I first met each other in I think about 1983, right after I came to the House of Representatives. You were with the Legal Services Corporation. Shortly after that you went I think with Bill McCollum on the Crimes Subcommittee of the House. You and I worked on the Crime Bill. You went off to the Justice Department for a while, had a career there. And then you came back, and you and I worked together when you were again Chief Counsel on the House Crimes Subcommittee, and then your distinguished career in Virginia, some very famous cases. Now back at Justice Department, U.S. Attorney's Office. It was a very distinguished career. So anyway, it is good to see you back. Let me just ask you, Paul, a couple questions, one on asylum cases. As you probably know, in the past year several Federal Circuit Courts have openly criticized the Department's handling of immigration cases involving those who seek asylum in the United States. Some have criticized the decisions of immigration judges. Others have commented on the quality of appellate review conducted by the Bureau of Immigration Appeals in these cases. The issue, however, seems to stem from a decision made by DOJ in 2002 to streamline the appellate review process in immigration cases. Without question, this streamlining has made the difficult process of deciding hundreds of thousands of asylum claims each year more efficient. But some of us fear that it has also led to a number of meritorious asylum claims really slipping through the cracks. What is your thinking in this area? Do the current DOJ regulations strike, in your opinion, the proper balance between efficiency and individual justice, or do we need to reexamine these regulations to be certain that meritorious asylum claims do not slip through the cracks? Mr. McNulty. Well, I am familiar with the changes in part because the effort to expedite the immigration cases has also resulted in really an avalanche of cases in the circuit courts for review. And my office in the Eastern District of Virginia, like every U.S. Attorney's office in the country and every litigating unit or component of the Department of Justice, is now participating and working on briefs on those cases. So we all understand the volume. Just a week ago, Senator, Attorney General Gonzales asked my office and the Associate Attorney General's office to conduct a thorough review of the way the immigration courts are operating, the quality of the work that is being done, the efficiency and effectiveness, and whether or not we have struck that right balance. So we are currently going through a very large effort to review what is being done by immigration judges in these cases, these petitions. I would like to get the results of that, which should be rather soon because the Attorney General told us to get it done quickly, and talk to you about what we find at that point. Senator DeWine. Well, I would hope maybe you could come in with me or have someone come in and brief me and my staff on that because I have a concern about this. When you have the circuit court judges openly criticizing the Department's handling, I think that is a problem. We are picking it up, frankly, through my office and some of the horror stories that we are hearing, and I think it is a real problem. Mr. McNulty. I understand, and the concern---- Senator DeWine. And the time line for that is what, do you think? Mr. McNulty. It is not a lengthy review. It is one that the Attorney General wants back quickly. So we have been at it now for about 3 weeks and I can't give you a specific date, but we are talking about just literally weeks of more work to do and not a long period of time. Senator DeWine. Let me ask you one more question. As United States Attorney for the Eastern District of Virginia, you, of course, have been involved in some of the most important anti- terrorism cases in the country. Do you want to take a moment to give us some idea of what is working in this area and what, from your perspective, maybe is not working? Again, have we struck the right balance between fighting terrorism and protecting civil liberties, and are the tools that Congress has given our investigators and our prosecutors in the USA PATRIOT Act, in your opinion, actually working? From a practical standpoint, what would be the effect on anti-terrorism investigations if we do not reauthorize the PATRIOT Act? Mr. McNulty. I think there would be serious problems if the PATRIOT Act was not reauthorized. The provisions that sunset provide very significant tools. We all talked about the wall, and the concern we have as prosecutors is the chilling effect that a lack of reauthorization would have on the sharing of information. Some sharing has improved that may not be connected necessarily to the PATRIOT Act directly, but there is an important part of the sharing that is directly tied to the PATRIOT Act. And if it is not reauthorized, we will go back to that stovepiping that keeps prosecutors from knowing actually what is going on and being able to pursue important cases. Also, Senator, as far as other tools in the Act, they provide the kind of thing that is needed in the right moments when you are trying to use what is available to make a case. They are not necessarily used everyday, but they provide a solution to an important problem, whether it is delaying a notification in a search or whether it is seeking a certain set of records that wouldn't be available because of the national security concern with a grand jury subpoena. We made a lot of progress in 4 years. In my office, in prosecuting these cases, I think we have learned how to overcome major obstacles that historically we just hadn't confronted in prosecuting cases where evidence was all over the world. And I think that we are much stronger today as a Department in prosecuting international terrorism cases than we were before 9/11. We will continue to look at what we can do legislatively and practically to improve, but I think my assessment to you, Senator, is that we have made great progress in overcoming obstacles. Senator DeWine. Thank you very much. Senator Durbin. Senator Durbin. Thank you very much, Mr. McNulty, and thank you for joining me in my office yesterday. It is good to see your family here. Mr. McNulty. Thank you. Senator Durbin. Mr. Chairman, I would say that if people on the Hill, including members of this Committee, understood the importance of the position that you seek, this room would be filled. It should be, because I think what we have seen with Mr. Comey, whom we both hold in high regard, is that during the course of his service in this same position, he was called on to make some extraordinarily important and difficult decisions. When you and I met yesterday, we talked about this compelling Newsweek article that attempts to describe Mr. Comey's experience at the Department of Justice in this position, and particularly the fact that he was, because of Attorney General Ashcroft's illness, drawn into an important responsibility of deciding whether to go forward with the domestic spying program which is going to be the subject of this Committee's hearing next week. The article indicates that he ran into some resistance for his position on this issue from Mr. David Addington, who is the chief of staff to Vice President Cheney. The reason I raise this is because you and I talked about it and I want to make sure it is laid out on the record here. There may come a moment, if you are approved by the Senate, where you are put in the same predicament, where you would be faced with making a critical decision relative to our rights and freedoms in America and face political pressure within the administration, as apparently Mr. Comey did from the office of the Vice President. My question to you in public session, as it was in my office yesterday, is whether you are prepared to resign the position if you found it to conflict with what you considered to be ethical or constitutional conduct. Mr. McNulty. Thank you, Senator, and I fully appreciate the significance of your question, and my answer to you today is the same as it was yesterday. I would never let a job come in the way of my integrity. If I felt that that was a necessary thing to do, I would certainly do it because, first and foremost, I have to do the right thing in this job everyday. I believe I have the standing as a result of more than two decades in this town, I have the confidence, I have the ability to assert myself that I might be persuasive to anyone I might come in contact with where I feel strongly about a position, and that I would prevail. But if that situation should arise as you framed it, then I would be prepared certainly to walk away from a job if it came to a question of integrity versus employment. Senator Durbin. And although I didn't raise it yesterday, I want to set out in the record, is there anything in your past service with the House Majority Leader relative to his legal problems concerning the K Street Project or Mr. Abramoff or anything--is there any aspect of this that you were involved in as a member of the staff? Mr. McNulty. Well, I didn't work for that Majority Leader. I worked for Congressman Dick Armey, the former Majority Leader. Senator Durbin. I see. Mr. McNulty. I served as the general counsel and I am unaware of any issue that has ever been identified that has been associated with my service to him in that way. Senator Durbin. So there is nothing in current investigation that relates to your service at all in the House? Mr. McNulty. No, sir. I am unaware of anything like that. Senator Durbin. Thank you. Let me ask you specifically about an issue raised earlier. Senator Leahy referred to the letter which I received relative to the referrals by Mr. Comey for detainee abuse cases to the office of the U.S. Attorney in the Eastern District of Virginia. I asked you yesterday if you agreed with the President's statement that no American could legally engage in torture, cruel, inhumane or degrading treatment. Do you agree with that statement? Mr. McNulty. Yes. As I understand it, that is the law of the land. Senator Durbin. And so if anyone in the administration suggested that the President had the authority to authorize torture, would you come to the conclusion he does not? Mr. McNulty. Right. As I understand it, the McCain amendment has addressed this very subject we are talking about and the administration has expressed its full support for the McCain amendment. Senator Durbin. And so that would be your position as well? Mr. McNulty. Correct. Senator Durbin. All right. So, if confirmed, you would not be advising the administration that they have the authority to ignore what is the clear statement in the McCain law? Mr. McNulty. No, Senator, I can't anticipate that--I wouldn't anticipate that situation. Senator Durbin. I see my time is up, so I will defer to my colleague, Senator Schumer. Senator DeWine. Senator Schumer. Senator Schumer. If Senator Durbin, with your permission, Mr. Chairman, wants to finish his line of questioning, I think I would end up going beyond the 5 minutes. It is better to have him finish his and then I finish mine, if that is okay with you, Mr. Chairman. Senator DeWine. Senator Durbin. Senator Durbin. Okay, thank you. I thank you my colleague from New York. So as you described it to me yesterday, the cases that have been referred to the Eastern District of Virginia U.S. Attorney's office--some 17 pending cases, if I am not mistaken? Mr. McNulty. That is right, minus the two we have declined, so we are down to 17. Senator Durbin. Seventeen pending cases involve, as you described it, some cases that came in with a thin file, limited information, often involving witnesses and victims who were overseas, some of which are now being considered in other courts, such as military courts. And you said to me that was the reason why there hasn't been more activity. Now, don't let me put words in your mouth. Mr. McNulty. Well, I wasn't saying there hasn't been more activity. There has been a lot of activity. We have worked very hard on this. What I was trying to describe to you is something that I am sure in the vast majority of prosecutions people confront, which are the reasons why you can't move from a referral on Monday to an indictment on Thursday. You have to have the work done to succeed in the case. All of the witnesses--let me qualify that--many of the witnesses, if not most of the witnesses, are overseas, and the victims, as well, and so forth. Those are just two of several factors that make the investigations difficult, not impossible, but just difficult. Senator Durbin. I think that is a reasonable explanation, and when I was asked by the press yesterday, that is exactly what I said. I hope there is some timely determination as to whether they are going forward for prosecution, whatever might be the fate of that office and the next office-holder. Mr. McNulty. Yes. Senator Durbin. One last question. You have been involved in some terrorism cases. Have any of the defendants in these cases been subject to this NSA surveillance, this domestic spying program which is now going to be considered by this Committee next week? Mr. McNulty. I don't know the answer to that question. At least two of the defendants in cases that my office has prosecuted have filed motions to that effect, but not based upon any information available to them. Senator Durbin. So you have no knowledge that any defendant has been subject to this surveillance? Mr. McNulty. I have no knowledge of that. Chairman Specter. Okay. Thank you very much, Mr. McNulty. Senator DeWine. Senator Schumer. Senator Schumer. Thank you, Mr. Chairman, and I want to welcome Paul McNulty and his family, his wife, his daughters. My condolences on your loss last week. Mr. McNulty. Thank you. Senator Schumer. Mr. Chairman, it is no secret that Paul McNulty and I go way back. One of my proudest moments as a Congressman--I served 18 years in the House--was putting together the crime bill, which had a little motto: Tough on Punishment, Smart on Prevention. It got a majority of the Black Caucus and close to a majority of the Republican members of the House to vote for it as it went through. I would say the staff member I worked most closely on with that legislation was Paul McNulty, who I believe was probably minority counsel at that point? Mr. McNulty. At different times, yes, sir. Senator Schumer. Yes, and I can tell my colleagues that Paul is not only extremely bright and hard-working and diligent, but a man of integrity and his word is good, and I appreciate that. So I guess I would say here that it is no secret that most of us on this side of the aisle have had serious differences with the Justice Department on a whole range of issues over the last 4 years. I am glad they chose you, as opposed to somebody else. Having said that, another one of your qualities which I respect is loyalty, and I worry that in this Justice Department two very fine qualities of integrity and loyalty are going to cause you some sleepless nights. So my questions are all in that sort of general vein, and I think it is my obligation to bring them out, as much respect as I have for you. I think that the Justice Department in the last 4 years has become more political than I have seen it in all the years I have been in Washington. Some of the cases at the Department proceed with complete professionalism, but others seem to be saturated with politics. The Justice Department should not be a den of ideology. My colleague, Dick Durbin, mentioned Jim Comey, and he was, like you, a consummate professional, forthright, true to the law, guided by what he thought was right. And I am sure you have read some of the newspaper and magazine stories. There has been at least speculation--Comey would be too much of a professional to comment on this--that he left because loyalty demanded too much. And there is talk that other people left the same way--Mr. Goldsmith, who was head of the Office of Legal Counsel, and some others. Again, I make it clear neither of them has said anything to that effect. These were articles I saw most recently, one in Newsweek. The job, in my judgment, of Attorney General or Deputy Attorney General is different than that of just about any other Cabinet position. Just about every other one, you are supposed to follow the President, period. But the Justice Department has an extra halo, if you will, which is it is the law enforcement agency of the country, and in a nation of laws, by definition, you don't always just follow. So one area I have concern in is the investigation of Jack Abramoff. This is a political issue, by definition. Names of politicians have been involved, and thus far I think the Public Integrity Section has pursued the case appropriately. But I worry when the investigation turns to Government officials, elected officials, and particularly, if it should occur, moves in the direction of some people who have a whole lot of power and a whole lot of connections with this administration. That is why I believe that given the ties between Mr. Abramoff and senior Government officials, this is a place where a special counsel is justified and necessary. We don't have an independent counsel law anymore. That was sort of knocked out, I think, in a bipartisan way. But a special counsel gives some distance, and Patrick Fitzgerald is an indication of that. Whether people like or don't like what he has done, no one has debated that he has free rein, and that is why whatever he does I am going to be happy with. I have faith in his integrity. I have faith in the structure that was set up. So here we have Abramoff with ties to the Republican leadership in Congress, certain ties to the White House itself. Who knows how deep? We are trying to figure that out. Second, the rules, DOJ's own regulations. The Attorney General must appoint a special counsel when a criminal investigation would present a conflict of interest and it would serve the public interest to appoint a special prosecutor. And now you have the added complication just in the last week or so that the career prosecutor in charge of the investigation, Noel Hillman, has been nominated to be a judge on the Third Circuit. So while this cauldron is bubbling, there is going to be a new appointment there, and even if that appointment is made totally, totally on the merits, there is going to be an appearance that you can't avoid, and couldn't avoid in any administration. This is not aspersions on this; this is just the facts of the matter. Senator DeWine. Senator Schumer, in the spirit of bipartisanship to show you that bipartisanship reigns in this Committee, I am going to turn the gavel over to you at this point. Senator Schumer. Well, thank you, thank you. Senator DeWine. I have another engagement that I am late for. Senator Schumer. No problem. I will just ask my questions and then conclude the hearing. Senator DeWine. Well, you are doing so well here that I will just let you continue. Senator Schumer. Thank you. Thank you, Mr. Chairman. Senator DeWine. If I could just say again, Paul, we are delighted at the President's nomination. Mr. McNulty. Thank you for your support. Senator DeWine. We look forward to working with you. Mr. McNulty. I certainly look forward to that. Senator DeWine. We are glad to see your family here today, too. Mr. McNulty. Thank you. Senator DeWine. Thank you. Senator Schumer. Thanks, Mr. Chairman. Senator DeWine. Thank you. Senator Schumer [presiding]. I would just say one other thing that sort of again leads to some concerns. Frederick Black was the acting U.S. Attorney in Guam and the Marianas and was removed while he was investigating Mr. Abramoff, again, some allege because he was investigating Mr. Abramoff, and even that Mr. Abramoff had a hand in removing him. So I guess my question to you is, given all these circumstances and the lack of public confidence that exists today, would you support the appointment of a special--oh, one other thing I should say is 35 of us in the Senate, all Democrats, are sending a letter asking that a special counsel be appointed today. So I would ask you what is your view of a special counsel in this case. Is it needed? What are the criteria you will use? I had asked the same question of Mr. Comey when he was sitting in your chair and he basically--well, as you saw then in the Plame case, did appoint a special counsel. So just give me some of your thoughts here. Mr. McNulty. Well, first, let me say, Senator, how much I appreciate your kindness to me. In this town, which can be a very rough place, the fact that you would remember the time we did spend together working and credit that toward me is something that I will always appreciate. I think it speaks a lot of who you are as a person and I appreciate it. Senator Schumer. Well, more to who you are. You are somebody I greatly respect. Mr. McNulty. Well, thank you. Second, when you talk about loyalty and integrity, loyalty is a good thing. I have benefitted from loyalty in my career and I have benefitted from loyalty in my life. I have friends here today who are loyal to me and that is nice, but loyalty and integrity aren't equals. Integrity trumps loyalty. Values have some hierarchical structure to them and when it comes to doing the right thing, you have to be willing to do that even to the people--if you are an enforcement person, even to people that you might have some knowledge of or relationship with. But on the question of the special counsel generally, I think it is an important tool in very limited ways. I think it does create that sense of public confidence. Public confidence is huge when it comes to the Department having the kind of standing that I described in my opening statement, and that is why from time to time it makes some sense. I do believe that the prosecutors working on this particular investigation are really thoroughgoing professionals, all career, and it has a lot of resources as far as the work that is being done. I will commit to you that I will certainly take your recommendation seriously and look at the matter and, if I am confirmed, give it every possible consideration for what is the appropriate thing to do. And I will consult with you as I do that so you know where I am coming from. I like to see the career people do their jobs without any interference, and I believe they put in the time and the effort and that they are in the place to make good judgments. And so with that only bias that I have toward the way in which the career people have demonstrated a record of integrity, I will give your proposal consideration. Senator Schumer. Well, I appreciate that very much, and you did say, which I think is very important, that this investigation will get whatever resources are necessary. They won't be hamstrung for a lack of---- Mr. McNulty. No. It already has a lot of resources and anything they need to---- Senator Schumer. Up to now, I don't have any complaints from my knowledge, limited as it should be, because it is-- well, it is somewhat public because there have been articles about it, but it is private. The problem I worry about is not the career prosecutors in the Public Integrity Section, but it is standard procedure in the Public Integrity Section, should the investigation turn to indict some high-level political figure, or even make that person a target--move the grand jury in a different direction is a little different--that often it goes beyond the Public Integrity Section and beyond the career prosecutors. That is my worry. Now, how do we address that type of--and that is standard procedure in the Justice Department and I am not here at the moment to quarrel with that. But in this sensitive situation, how do you deal with that? You will admit there will be decisions, not every decision, but some decisions made at a higher level than the Public Integrity Section, should this investigation find serious wrongdoing among certain people. Isn't that fair to say? Mr. McNulty. Sure, absolutely. I have had the experience of being around attorneys general and deputy attorneys general over the course of my career and I have never, ever heard a conversation about political considerations when it comes to charging. There is a culture at the Department of Justice that is blind to that and just looks at the facts and the law and tries to move forward. And there is a structure at the Department of Justice that is probably, I think we would both agree, a good thing, which is that there is political leadership that is accountable, that changes with elections. And they do have, by the very design of our Founders, a responsibility for administering the law. In the current structure of special counsel, it is not like an independent counsel was under the statute where you have someone who actually has this charging authority that exists outside of the Department. Jim Comey faced the question with appointing Pat Fitzgerald. Pat Fitzgerald reported to him. He was a political appointee. Senator Schumer. Right. Mr. McNulty. And so you have to work through some of those questions that even with a special counsel, ultimately if one is picked, that person would report to me, unless I am recused, then report to somebody else. Senator Schumer. So if whoever is the new prosecutor brings something to you, you would not try to overrule it on any kind of political grounds, no matter---- Mr. McNulty. Absolutely not. Senator Schumer. Great. Second, I guess what you are saying here is you will look at the issue of a special counsel seriously. You don't foreclose ruling it out right now at all? Mr. McNulty. No, Senator, I don't. Senator Schumer. Thank you. The next questions are related not to the special counsel, but since 2001 I have talked and my staff has talked to a good number of career people in the Justice Department who are very frustrated with what they would call the politicization of some parts of the Justice Department--I am not talking about shifts in policy here. Obviously, that is the President's prerogative. He won the election and my party lost--but rather where political appointees routinely overrule experience and expertise of dedicated staff. If they believe it is on all fours, not even equivocal, that the law requires one thing, they are overruled in a different direction. They are removed from current posts and given less desirable assignments. The hiring process is taken over by political appointees for appointments further down the chain without input from career managers, where a highly experienced, talented and rather long-term workforce is purged. And all too often, who pops up in their place is someone with less experience, but far more conservative ideological credentials or political connections. An example: Last June, political appointees overruled career attorneys on the tobacco litigation team and ordered them to ask one of their witnesses to downplay testimony that was damaging to the tobacco industry, and then ordered them to dramatically reduce their request for civil penalties by billions of dollars. The veteran career attorney who had led the case suddenly and inexplicably withdraw from the litigation amid speculation she was driven out. In August, Lawrence Greenfield, the head of the Bureau of Justice Statistics, was asked to resign and was later demoted after he objected to a White House order that he delete references to racial disparities in news releases prepared to announce a study on racial profiling. The one that I find most disturbing is the pattern in the Civil Rights Division, where some of the most egregious and appalling examples have occurred. The front page of the Washington Post said that political appointees have overruled experienced career attorney recommendations to deny pre- clearance to voting changes in Georgia and Texas; that the attorneys determined after thorough, non-political legal analysis that it would have a discriminatory effect on minority voters. If those political appointees or people in the White House thought that the Voting Rights Act, as it is, goes too far, they had every right to try and change the law, come to us and change the law, but to veto cases or to change the way cases are being done in compliance with the law. Experienced attorneys are departing this division at an alarming and unprecedented rate, and many who choose to remain get assigned to less desirable posts. They are ordered to work on deportation cases rather than civil rights cases. So again, with complete respect for you and who you are, but realizing it is a tough world, how can you assure us that you will deal with these kinds of--if they are as I described, and I don't know if you have looked into any of them in your acting capacity--how you will deal with them. I don't think you would deny that at least out there in the buzz, there is a view that this Justice Department in certain areas, particularly civil rights, has behaved more politically. Mr. McNulty. I am aware, Senator, of that buzz, and in the 3 months that I have been the Acting Deputy I have become more familiar with some of the issues that you raise here. Perhaps the best answer I could give you is as a general matter I was enjoying my life as a U.S. Attorney and really finding that to be the best job I have ever had. And when I was given the opportunity to move to the Department of Justice to serve as the Deputy Attorney General, the thing that primarily motivated me to take it was not fame and fortune by any means, but rather the fact that I have a great regard for the Department of Justice as an institution. And I think we are talking about over 100,000 people here, and the need to manage the place well is critical, and to see that people are treated well. And so if I am confirmed, I expect as the Deputy Attorney General to hold everybody accountable for their conduct in relation to how we deal with career people and how we respect the work that is being done by everybody in the Department, to avoid the appearance of politics coming into what we do, to follow up on things that I read about or hear about and to get to the bottom of it. That is about the best I can say to you with regard to this sort of list of things that you are talking about, that if they come up under my watch, I will address them. And if somebody calls me and says I heard about this, you can have the confidence that I will look into it and get back to you. Senator Schumer. One thing I would ask you to address, if you are confirmed, is would you be willing to look into what is going on in the Civil Rights Division and report back in a way you feel appropriate to me, to the Committee, to the Chairman? I think that does need some looking into. Mr. McNulty. Well, I understand. I have talked to Wan Kim, the new Assistant Attorney General. I believe he is a very good man who has a real commitment to making the Civil Rights Division everything it can be and it should be. The work is very important. As you say, sometimes there are policy issues that come up that have to be resolved. On this question of voting rights, I am aware that the section chief is the person under the guidelines who is responsible for the pre-clearance authority. And so when you see pre-clearance, you know that a career person has made that decision. I think that sometimes gets lost in the process, but nevertheless the concern you express is something that I will take seriously. And I will look at the Civil Rights Division and make sure that it is functioning in a way that has everyone's confidence that it is doing its job. Senator Schumer. What I would like to do is send you just a letter or something asking that you look into certain things in there. Would you be willing to just get back to me once you are confirmed? Mr. McNulty. That sounds fine. Senator Schumer. I just want to let you know, Paul, that I am proud of who you have been and you have been a wonderful public servant. I have real concerns, as you know, but I have faith in you. I had faith in Jim Comey and I thought he did the right job at a difficult. I am prepared to support your nomination. Mr. McNulty. Thank you very much. Senator Schumer. We are going to leave the record open for written questions for 1 week and the record will close on February 9 at 5 p.m. The hearing comes to a close, and again to the McNulty family--my brother-in-law is a McNulty, as well, but we are to related. That has nothing to do with this today. [Laughter.] Senator Schumer. The hearing is adjourned. 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