The setting was a little different. But Sens. Patrick Leahy (D-Vt.) and Dianne Feinstein (D-Calif.) needed no introduction this morning to Attorney General Michael Mukasey at a Senate Appropriations subcommittee hearing.
Although Sen. Barbara Mikulski (D-Md.), chairman of the Subcommittee on Commerce, Justice, Science, and Related Agencies, and ranking member Sen. Richard Shelby (R-Ala.) also spoke, it was the exchanges with Leahy and Feinstein that stood out.
They took turns questioning Mukasey about cutbacks for U.S. law enforcement programs, controversial Office of Legal Counsel memos, the use of corporate monitorships and the sometimes-sluggish response to congressional requests from the Justice Department. Here's Mukasey's testimony.
At an oversight hearing two months ago in the Senate Judiciary Committee, where Leahy is chairman and Feinstein is a member, Mukasey gave an overview of his short tenure while enduring questioning from several senators for several hours. Today’s hearing lasted a mere one hour.
Leahy asked why the department's funds for local and state law enforcement programs were being cut back while the Iraqi police is equipped and trained with millions of U.S. taxpayer dollars, some of which he said are unaccounted for.
"We don’t even know what happened to their weapons or where the money went," Leahy said.
"I can’t address whether money in Iraq is being used effectively or not," Mukasey replied. "I don’t know that. I visited Iraq...It’s a war zone, and some things happen in a war zone that don’t happen” elsewhere.
From there, Leahy zeroed in on the lack of information coming from the department on certain topics.
"One example is I asked for information two months ago…on lucrative no-bid contracts awarded to former political appointees of the Justice Department," Leahy said in reference to a multi-million-dollar award steered to ex-Attorney General John Ashcroft's consulting firm by the U.S. attorney in New Jersey. "Any chance we might get answers to the questions we posed two months ago?"
"The issue of grants to monitorship programs was addressed in a March memo to all U.S. attorneys," Mukasey answered. He emphasized that taxpayers don’t fund the monitorships, which are paid for by corporations as a way to comply with deferred prosecution agreements with federal prosecutors.
Not satisfied with Mukasey’s reply, a skeptical Leahy followed up: "I think we’re going to have another hearing…What do we tell people? We want them to know that somebody is not being given sweetheart deals."
On his third question, Leahy asked Mukasey to clarify a recent comment he made in San Francisco where he implied that the failure to listen in on a phone call from Afghanistan to the United States prior to the Sept. 11, 2001 attacks had cost 3,000 lives.
"Nobody else seems to know about this. Can you tell me what the circumstances were and why?" Leahy said.
"The phone call I referenced relates to an incoming call that is referred to in a letter in February of this year to House Intelligence Committee Chairman [Silvestre] Reyes [(D-Texas)] from Director of National Intelligence Mike McConnell and I," Mukasey said.
"One thing I got wrong. It didn’t come from Afghanistan. I got the country wrong," Mukasey continued without specifying the country where the call originated.
Mukasey, who used the phone call as an example to highlight the intelligence shortcomings before 9/11, did not explain why he included the comment to argue for expanded surveillance powers in a question-and-answer session after his speech on March 27.
"No FISA [Foreign Intelligence Surveillance Act] application should have been necessary to monitor a foreign target in a foreign country," Leahy reminded Mukasey. "We didn’t need it then. And we didn’t need it today."
Feinstein had her own list of grievances, starting with Justice Department cuts that she said will eliminate 22 drug task forces in California this year.
Next, the senator who crossed party lines to confirm Mukasey last November asked Mukasey whether an October 2001 legal opinion authored by John Yoo, a former deputy in the Office of Legal Counsel, was still in effect. That opinion, which found that the Fourth Amendment did not apply to domestic military operations, was referenced in another 2003 memo released by the Justice Department last week.
"Is the October 2001 OLC opinion still considered binding by the Department of Justice?" Feinstein asked.
Mukasey at first struggled to answer to Feinstein's satisfaction:
"I can’t speak to the October 2001 memo," he said. "We are aware of Congress’ oversight interests in this matter…We’re trying to work with Congress to meet your legitimate oversight."
"This isn’t a question of oversight," Feinstein shot back. "I’m just asking you whether this memo is in force."
"The principle that the Fourth Amendment does not apply in wartime is not in force," Mukasey continued.
"That's not the principle I asked you about,” Feinstein countered. “Does it apply to domestic military operations? Is the Fourth Amendment...I’m asking you a question. That's not the answer."
"I’m unaware of any domestic military operations being carried out today," he said.
Feinstein tried again: "You're not answering my question...Is this memo binding?"
Mukasey finally replied: "The Fourth Amendment applies across the board regardless of whether it’s peace or war time."
Feinstein was pleased and inquired whether Mukasey was working on releasing the opinion. Mukasey said he was.
"This memo becomes a linchpin. It’s a very important memo," she said. "I appreciate that you’re trying to do it. I hope a decision will be coming shortly."
"It’s at the top...It’s a priority of mine," he said.
"When might we receive it?" the senator asked.
"I’m going to try to do it as quickly as I can," he said. "My interests are not served by having this drag on."