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| TIME | SPEAKER | TEXT |
|---|---|---|
| 00:02:36 |
|
The committee will come to order. First, let me thank Chairman Leahy for allowing me to chair... |
| 00:08:30 |
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Thank you, Mr. Chairman. At the outset may I say that your work on the committee has been outstanding.... |
| 00:08:51 |
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(Inaudible.) |
| 00:08:51 |
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-- acting chairman of the committee, which is quite a testimonial to you. But we've worked together... |
| 00:15:41 |
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Thank you, Senator Specter. At this time I'll recognize Senator Jack Reed from Rhode Island for... |
| 00:15:51 |
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Thank you, Mr. Chairman. And thank you, Ranking Member Specter. It is an honor to appear... |
| 00:18:49 |
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Thank you very much, Senator Reed. I appreciate you being here. At this time I would ask... |
| 00:19:53 |
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(Off mike.) I've also got my brother-in-law Kevin, who made the trip from Madison, Wisconsin;... |
| 00:20:15 |
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Thank you. Dean Kagan. |
| 00:20:19 |
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(Off mike) -- and I left most of mine at home. But I have two wonderful brothers who are here... |
| 00:21:01 |
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Well, we welcome your families and we know the sacrifices that they have to make in regards... |
| 00:21:22 |
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Thank you. Mr. Chairman, Senator Specter, and members of the committee, thank you for... |
| 00:25:29 |
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Thank you very much. Dean Kagan. |
| 00:25:32 |
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Thank you, Mr. Chairman. Mr. Chairman and members of the committee, I'm deeply honored to be... |
| 00:31:41 |
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Well, thank you. We thank both of you for your opening statements. We are going to have... |
| 00:33:06 |
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Well, Senator, with respect I think the answer to the last part of your question is none. You've... |
| 00:34:16 |
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That's the answer I expected to hear from you, but let me just caution you. You are responsible... |
| 00:35:16 |
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Well, Senator, the attorney general has already made clear that that will be a significant priority... |
| 00:36:16 |
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Thank you. Dean Kagan, I very much support your statement of aggressively enforcing the... |
| 00:37:16 |
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Thank you, Senator Cardin. It's an extremely important question. Every solicitor general nominee... |
| 00:39:06 |
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I thank you for that response. I would also hope that there would be some transparency in making... |
| 00:39:21 |
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Thank you, Mr. Chairman. Mr. Perrelli, I sent you a letter on the issue of congressional oversight... |
| 00:40:17 |
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Senator, the passage that you provided, I agree with respect to the description of the scope... |
| 00:40:47 |
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Well, would you supplement your answer by specifying what kind of extenuating circumstances... |
| 00:40:53 |
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Well, I think that certainly you have the situation of executive privilege and how -- |
| 00:40:57 |
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I want you to supplement your answer in writing because I've only got seven minutes. |
| 00:41:02 |
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I will do. |
| 00:41:02 |
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But you said you would adopt those as a generalization but there might be some extenuating circumstance... |
| 00:41:13 |
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Thank you, Senator. |
| 00:41:13 |
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The Washington Post has an account today on the state secrets doctrine. The Obama administration... |
| 00:41:57 |
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Senator, I think with respect to the question about any particular case, I think it would require... |
| 00:42:07 |
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Well, would you take a look at the case and the statute which Senator Kennedy and I have pending... |
| 00:42:17 |
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I will, Senator. |
| 00:42:17 |
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There have been a large number of cases by the Department of Justice in taking monetary fines... |
| 00:44:13 |
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Senator, with respect to that assertion, I think the argument was that Congress cannot, through... |
| 00:44:38 |
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Well, there is concurrent jurisdiction between the state courts and the federal courts, double... |
| 00:44:59 |
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I think the argument that we made in that case was that what the impact, the effect of Congress'... |
| 00:45:11 |
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Well, that may be the impact. But would you supplement your answer with why you think Congress... |
| 00:45:21 |
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I will do that, Senator. |
| 00:45:21 |
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Dean Kagan, coming to the citation that I had mentioned earlier about how strongly you felt... |
| 00:47:29 |
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Well Senator, thank you for raising that memo. I first looked at that memo -- thought about... |
| 00:47:52 |
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You don't have to go any further. (Laughter) What are you -- you're telling us you won't make... |
| 00:48:02 |
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You should never make the same mistake twice. |
| 00:48:07 |
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I wish I could follow that advice. (Scattered laughter.) One final question, Mr. Chairman.... |
| 00:50:02 |
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That's a very interesting question Senator. You know, the Supreme Court's jurisdiction is of... |
| 00:52:22 |
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Thank you, Ms. Hagan. Thank you, Mr. Chairman. |
| 00:52:22 |
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Thank you. Senator Feingold. |
| 00:52:28 |
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Thank you, Mr. Chairman. Dean Kagan, congratulations on your nomination. I was personally delighted... |
| 00:53:49 |
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Absolutely. There is simply no question that when one assumes the solicitor general's role,... |
| 00:54:26 |
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I agree with that. And he did do a superb job, and I could have sworn he almost was believing... |
| 00:54:38 |
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For that day he was persuaded, and that's all you need. |
| 00:54:42 |
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Let me ask you, now, about the conflict of interest restriction on those who serve in the solicitor... |
| 00:55:42 |
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I will, Senator Feingold. To be truthful, this is not a question that I've thought anything... |
| 00:56:05 |
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Thank you so much. Mr. Perrilli. I congratulate you as well. You have a truly stellar reputation.... |
| 00:57:28 |
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Senator, with respect to the particular case, I think I would need to consult with others at... |
| 00:58:25 |
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But you will, if confirmed -- |
| 00:58:25 |
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If -- |
| 00:58:25 |
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-- give me an answer about whether I'll get a classified briefing on this. |
| 00:58:32 |
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I will give you an answer, if confirmed, Senator. |
| 00:58:32 |
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And I just want to confirm -- I believe that you've indicated to Senator Specter that you would... |
| 00:58:49 |
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I will, Senator, and I look forward to speaking with the committee about that if I'm confirmed. |
| 00:58:52 |
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There's a lot of suspicion of the government out there, and this is important legislation that... |
| 00:59:21 |
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Senator, I appreciate the question. In my prior service at the Department of Justice I have... |
| 00:59:54 |
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Thank you. Thanks, Mr. Chairman. |
| 00:59:54 |
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Thank you, Senator Feingold. Senator Coburn? |
| 00:59:58 |
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Thank you, and welcome to you both. Ms. Kagan, one of the things that you said earlier was explaining your... |
| 01:00:35 |
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That's a very interesting hypothetical question, Senator. I'll say a little bit about... |
| 01:01:55 |
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Okay, thank you very much. Of all I've read, the only real criticism that you've had is that... |
| 01:02:38 |
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I think it's a very fair and important question. I'm very confident that I'm up to this part... |
| 01:02:48 |
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I have no doubt. |
| 01:02:48 |
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And I'll tell you a little bit about why. I think when you get up to that podium at the Supreme... |
| 01:04:14 |
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And some of them, the record would show, had some difficulties in their presentations before... |
| 01:04:26 |
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Now I want to know who you mean. (Laughter.) |
| 01:04:28 |
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Well, my staff is going to invite you to come by and visit with me, so we'll have a great conversation... |
| 01:04:42 |
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Thank you, Senator. I have been heard to say that you are the most important member of this... |
| 01:04:50 |
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Mr. Perrelli, the Department of Justice is responsible for enforcing our nation's obscenity... |
| 01:05:22 |
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Senator, with respect to that act, I think that it is likely that the responsibility for that... |
| 01:06:01 |
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The same would apply for the Children's Internet Protection Act and the Child Protection Obscenity... |
| 01:06:09 |
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To the best of my knowledge those would be most likely to fall under the criminal jurisdiction... |
| 01:06:19 |
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Do you think any of your past experience in terms of those that you've defended or advocated... |
| 01:06:32 |
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No, I do not, Senator. |
| 01:06:32 |
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Thank you. Last year I participated in legislation targeting combating child exploitation and... |
| 01:07:10 |
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Senator, I think with respect to any enactment of Congress, my role will be to defend that statute... |
| 01:07:21 |
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One final question. Do you personally believe that adult obscenity contributes to the sexual... |
| 01:07:33 |
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Senator, I can't say that I have any recollection of looking at social science at all, but I... |
| 01:07:53 |
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But it's not your view that that in itself, adult obscenity, contributes to child exploitation? |
| 01:08:04 |
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I have not looked -- with respect to adult obscenity -- and we're talking about unlawful materials... |
| 01:08:37 |
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I'll be happy to send you the literature on adult obscenity and child predators. Thank... |
| 01:08:49 |
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Without objection. And at this point it might be appropriate, Senator Coburn, to just put into... |
| 01:09:22 |
|
Thank you very much, Mr. Chairman. Congratulations to both of you. Dean Kagan, I noted that... |
| 01:10:54 |
|
Well, thank you, Senator. It's an interesting question, and I think I'm going to disappoint... |
| 01:12:25 |
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And I don't question the solicitor general's role with that at all. I was just wondering, some... |
| 01:12:36 |
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Well, you can see why when the government wins the case -- |
| 01:12:41 |
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No, I know, but, I mean, there has just been -- |
| 01:12:41 |
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-- one would want to rest there. (Laughter.) |
| 01:12:46 |
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I understand that. I just meant becoming involved in those cases because we've just seen some... |
| 01:12:52 |
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Yes, and it's very interesting. I would love to talk to you about this further and to hear some... |
| 01:12:56 |
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Okay. Thank you. Mr. Perrelli, I do note that your son seemed to quite down when he was... |
| 01:13:10 |
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It is sad but true. |
| 01:13:10 |
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Okay. |
| 01:13:10 |
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I do believe that our children mimic what they see from their parents. |
| 01:13:14 |
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All right, good. Well, I was a prosecutor for eight years, running an office of about 400 people,... |
| 01:14:06 |
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Well, Senator, I think it is an important question. And the experience of having worked through... |
| 01:15:15 |
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One of the other things that I think is so important is how the Department of Justice works... |
| 01:15:40 |
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Certainly, Senator, and it's a critically important question because I think we all have to... |
| 01:16:37 |
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And I'm out of time here, but two areas that I hope you'll consider in the future is just white... |
| 01:17:01 |
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I will, Senator. |
| 01:17:01 |
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Thank you. |
| 01:17:01 |
|
Senator Kyl. |
| 01:17:04 |
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Thank you, Mr. Chairman. Dean Kagan, I'd like to ask a favor. If you would please read, and... |
| 01:17:38 |
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Senator, if I may? |
| 01:17:38 |
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Yes. |
| 01:17:38 |
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I was told yesterday -- I suppose one of your staff said that you had an interest in this article,... |
| 01:17:47 |
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Well, good. I didn't want to catch you by surprise. |
| 01:17:47 |
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No, it was very fair, but I just want to say I completely agree with you. I think it's a very... |
| 01:18:05 |
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For those who haven't, it's a bit of a template for how an SG approaches decision-making about... |
| 01:21:11 |
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I appreciate it. And first, let me -- let me say I completely agree with you on the necessity... |
| 01:23:11 |
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Sure, I appreciate that. The greatest knowledgeable surgeon, though, still has to get those... |
| 01:24:19 |
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I absolutely would have, Senator, and I'm glad you asked that question because the answer is... |
| 01:25:14 |
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Again, thank you, and I would appreciate the chance just to visit privately for a little bit. |
| 01:25:18 |
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Senator Kyl, thank you for your inquiry. Let me just, if I might, put into the record -- I think... |
| 01:26:17 |
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Thank you very much, Mr. Chairman, and welcome to the both of you and congratulations and certainly... |
| 01:27:33 |
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Well, Senator, you ask a question that I do think goes to the role of the Solicitor General's... |
| 01:28:33 |
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Yes, well of course, there are many of us. I happen to be one that believed that the EPA was... |
| 01:28:58 |
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I think that the presumption is just like the presumption is that the solicitor general's office... |
| 01:29:11 |
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Okay. Let me switch topics and ask, are you both familiar with the bill that we spent a great... |
| 01:29:25 |
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Senator, I'm generally familiar with it. |
| 01:29:25 |
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The same. |
| 01:29:28 |
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How about you, Ms. Kagan? Well, you mentioned the Jackson formula from Youngstown. And as you... |
| 01:31:00 |
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Senator, I haven't looked at the exclusivity provisions for that precise purpose. I would, echoing... |
| 01:31:29 |
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Ms. Kagan? |
| 01:31:29 |
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I can't say anything more than that. |
| 01:31:35 |
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Okay. Have either of you had an opportunity to review the Geneva Conventions? |
| 01:31:42 |
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Again, generally, Senator. |
| 01:31:45 |
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With respect to the laws of war, which essentially cover the detention of an enemy combatant... |
| 01:31:54 |
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Senator, I've had occasion to review that in the context of reviewing the Supreme Court's decisions... |
| 01:32:01 |
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Well, let me ask you this question, then. Do you believe they are sufficient to detain an individual... |
| 01:32:16 |
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Senator, I think I would want to consult further with experts in the field. The description... |
| 01:32:44 |
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The reason I raise this is because I think it's going to be a fundamental question as we consider... |
| 01:33:36 |
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Well, Senator, I think, as I indicated, my understanding is that that is indeed what the Hamdi... |
| 01:33:52 |
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Thank you. Thank you, Mr. Chairman. |
| 01:33:52 |
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Thank you. Senator Graham. |
| 01:33:56 |
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To pick up where Senator Feinstein left off, which is an excellent question -- and this country... |
| 01:34:16 |
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Under normal criminal law? Yes, I do agree with you. |
| 01:34:19 |
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And if you had a criminal statute that would allow someone to be held forever without trial,... |
| 01:34:26 |
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That seems right, Senator. |
| 01:34:26 |
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Okay. Now, if one's at war -- let me ask this. Do you believe we're at war? |
| 01:34:34 |
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I do, Senator. |
| 01:34:34 |
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Okay, let me read from Mr. Holder. Would you consider him your boss? |
| 01:34:40 |
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(Laughs.) In a manner of speaking, Senator. I guess he can fire me, so that makes him my boss. |
| 01:34:44 |
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Okay. Well, that would make him your boss. But it seems to be -- I think he'd be a good boss. |
| 01:34:50 |
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I think so too. |
| 01:34:50 |
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And I think you'd be very qualified for your job. I asked him, "Do you think we're at war?"... |
| 01:35:18 |
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It's easy to agree with my boss in that circumstance. |
| 01:35:21 |
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Okay. I asked him where the battlefield might be. If we're at war, I asked him where would the... |
| 01:36:15 |
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(Off mike.) |
| 01:36:15 |
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Well, I certainly do too. And I told him I thought what he was speaking of was the moral high... |
| 01:36:58 |
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I do. |
| 01:36:58 |
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So that gets us back to Senator Feinstein's question. Under the law of armed conflict, as I... |
| 01:37:54 |
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I think it makes sense, and I think you're correct that that is the law. |
| 01:37:57 |
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So America needs to get ready for this proposition that some people are going to be detained... |
| 01:38:35 |
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It does, indeed. |
| 01:38:35 |
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It has to have substantial due process. |
| 01:38:39 |
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It does, indeed. |
| 01:38:39 |
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And it should have an independent judiciary involved in making that decision beyond the executive... |
| 01:38:44 |
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Absolutely. |
| 01:38:44 |
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So we can go tell the world that this person is being held off the battlefield not because one... |
| 01:39:04 |
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I do, Senator. |
| 01:39:04 |
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I look forward to working with you and this new administration how to come up with a process... |
| 01:40:29 |
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Well, I think, Senator, simply by identifying the problem, whatever mechanisms and laws we have... |
| 01:41:13 |
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Well, thank you, both. I think you are excellent choices, and you'll do a good job for the country.... |
| 01:41:19 |
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Thank you, Senator. |
| 01:41:19 |
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Thank you, Senator. |
| 01:41:19 |
|
Thank you. Senator Whitehouse. |
| 01:41:23 |
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Thank you. Just to follow up on Senator Graham's question, we passed legislation very recently... |
| 01:43:35 |
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I certainly can make that assurance, Senator. |
| 01:43:38 |
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Senator, I can as well. And one of the glories of the Solicitor General's Office is that even... |
| 01:43:56 |
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It has distinguished itself in that regard. We've heard disturbing testimony about the disassembly... |
| 01:46:06 |
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Well, Senator, I think it is an important question. And I think there's no question on a forward-looking... |
| 01:47:17 |
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So you are completely confident that the existing performance evaluation and review process... |
| 01:47:30 |
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I can't say that I'm completely confident. It's something I would want to look at, if I'm confirmed,... |
| 01:47:52 |
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Well, I certainly hope that that's the case. And I'm prepared to accept that it may be the case.... |
| 01:48:39 |
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Thank you, Senator. |
| 01:48:39 |
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Thank you, Senator. |
| 01:48:39 |
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Senator Hatch. |
| 01:48:42 |
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Well, thank you, Mr. Chairman. I welcome both of you to the committee. I have great respect... |
| 01:48:59 |
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Thank you. |
| 01:48:59 |
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No question about it. And I think it's evident by a number of the professors who are here today,... |
| 01:50:46 |
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Senator, I don't know the case, and I'm not sure I understand which solicitor general did what,... |
| 01:50:54 |
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Well, the first solicitor general in President Clinton's tenure. |
| 01:50:58 |
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I see. And then -- but then it was defended later? |
| 01:51:02 |
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Yeah, it was. Well, actually, it turned out, I think, all right in the end, but that was the... |
| 01:51:10 |
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Well, either way, Senator, I would have no difficulty in this area whatsoever. I mean, I would... |
| 01:51:27 |
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Well, in your book -- in your review of Professor Stephen Carter's book on the confirmation... |
| 01:51:43 |
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The -- ? |
| 01:51:43 |
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-- even about votes they would cast. How do you square this with the principle that judges must... |
| 01:51:54 |
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It's a great question, Senator. And I'm not sure that, sitting here today, I would agree with... |
| 01:52:05 |
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(If you) want to know the truth, I remember when Judge Bork was here, he had written some outlandish... |
| 01:52:29 |
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Right, right. |
| 01:52:29 |
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And you're good at that. |
| 01:52:29 |
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(Laughs.) Well, thank you, Senator. I was just going to say, you know, I wrote that when I was... |
| 01:53:09 |
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Let me just say that I may not agree that Thurgood Marshall was the greatest attorney of the... |
| 01:53:45 |
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(Laughs.) |
| 01:53:45 |
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If you are confirmed to be associate attorney general you will oversee the Justice Department's... |
| 01:55:00 |
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Well, Senator, it's an important question. And I agree with you that we need to continue the... |
| 01:55:53 |
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Well, thank you. I want to -- I want to express my regard for both of you. And I've really enjoyed... |
| 01:56:19 |
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(Laughs.) |
| 01:56:19 |
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But, glad to have you here and glad you're willing to serve. |
| 01:56:24 |
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Thank you, Senator. |
| 01:56:24 |
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Thank you, Senator. |
| 01:56:24 |
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Thank you, Senator Hatch. Senator Wyden. |
| 01:56:27 |
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Thank you, Mr. Chairman. I want to welcome both of our witnesses as well. I know we have votes,... |
| 01:57:14 |
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Well, Senator, I appreciate the question. And I agree that as we -- particularly in the current... |
| 01:58:40 |
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You've told me that you'd look at putting more agents on it, and more U.S. attorneys. I want... |
| 01:58:55 |
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I can, Senator. |
| 01:58:55 |
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Very good. Second point for you, you represented the Recording Industry Association, and... |
| 01:59:25 |
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Senator, with respect to the enforcement of the criminal copyright laws, that, again, would... |
| 01:59:50 |
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And you would support that? |
| 01:59:50 |
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I'd have not reason to disagree with it. |
| 01:59:54 |
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Okay. One question for you, Ms. Kagan -- and I share Senator Hatch's views about your... |
| 02:01:14 |
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Senator, I appreciate the question but I have this urge, actually, to stay up at 50,000 feet... |
| 02:01:19 |
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I got the drift. (Laughter.) |
| 02:01:19 |
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-- for the reasons that you say -- you know, the president has authorized a review of this case,... |
| 02:02:00 |
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Well, tell me, then, about the balance -- the Constitutional balance, as you would think about... |
| 02:02:18 |
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Fighting terrorism ferociously and also fighting terrorism within the rule of law. And those... |
| 02:02:31 |
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Thank you, Mr. Chairman. |
| 02:02:31 |
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Senator Kaufman. |
| 02:02:35 |
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Thank you, Mr. Chairman. Dean Kagan, Mr. Perrelli, I'm really pleased that you're taking on... |
| 02:04:02 |
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Thank you, Senator. |
| 02:04:02 |
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Thank you, Senator Kaufman. Let me just echo what Senator Kaufman has just said, and thank both... |