AFJ Calls on Senate Judiciary Committee to Question Mukasey About FISA, Politicization of the Justice Department, and Political Prosecutions

July 7, 2008, Washington, DC – In anticipation of Attorney General Michael B. Mukasey's July 9 testimony before the Senate Judiciary Committee, Alliance for Justice (AFJ) is calling on members of the committee to question the Attorney General about a number of key issues, including illegal wiretapping, the politicization of the Justice Department, and alleged political prosecutions.  AFJ noted that it has become increasingly clear during Attorney General Mukasey's leadership at the Department of Justice that he has failed to stand up to the Bush Administration on numerous issues of great public concern. Among the questions the Attorney General should address during his testimony are the following: 

• In your confirmation hearing testimony, you claimed that you were "agnostic" on the president's authority to immunize violations of criminal statutes prohibiting warrantless eavesdropping. Instead, you described wiretapping for purposes of intelligence gathering as "more flexible" than wiretapping done for the purpose of gathering evidence of crimes, without recognizing that the Foreign Intelligence Surveillance Act (FISA) court was established in part precisely to adjudicate warrant applications for intelligence gathering. Indeed, you repeatedly asserted that the president has an ill-defined power to act outside the confines of the FISA statute under his inherent constitutional authority.

Legislation currently pending on the Senate floor would amend Title I of FISA by adding a new section, which states: "Except as provided in subsection (b), the procedures of chapters 119, 121 and 126 of Title 18, United States Code, and this Act shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communication may be conducted."  If this provision, intended to reinforce and reiterate that the FISA procedures are the only legal means of undertaking such surveillance, becomes law, will you continue to assert that the president has the power to disregard the law and conduct wiretapping outside of FISA?

• The Office of the Inspector General and the Office of Professional Responsibility recently released a joint report documenting widespread politicization of hiring in the Justice Department's Honors Program.  The report notes that you have responded to the problem by issuing a memo "requiring all political appointees to acknowledge that they have read the Department regulations that hiring must be merit based and that political affiliations cannot be considered."  However, the report recommends significant additional changes to rectify the politicization of hiring in the Department.  Will you agree to implement all the changes recommended by the OPR-IG report, including strengthening the written briefing material for political appointees to clarify that political affiliations cannot be considered in the hiring process, and ideological affiliations may not be used as a proxy for political affiliations?
  
• Last week, a class action lawsuit was filed in the United States District Court for the District of Columbia seeking damages of $100,000 for each Honors Program applicant who was denied a position based on political considerations. Do you intend to defend the Justice Department against this lawsuit and, if so, on what basis?
  
• The recently released Honors Program report contained vital information about the extent to which hiring at the Justice Department was infiltrated by politics.  When do you expect the Office of the Inspector General and the Office of Professional Responsibility to release their joint report on the US Attorney firings?
  
• Have you conducted any investigations into allegations of political prosecutions by the Department of Justice?

To read more about Attorney General Mukasey's tenure at the Department of Justice, please see Alliance for Justice's report Attorney General Michael B. Mukasey After Six Months: Pawn of the Bush Administration.