Text Timeline

Text Timeline
Graphical Timeline

00:02:365 min.	Cardin, Benjamin "Ben" L. - U.S. Senator, [D] Maryland The committee will come to order. First, let me thank Chairman Leahy for allowing me to chair today's hearing. Today we consider two important...
00:08:3021 sec.	Specter, Arlen - U.S. Senator, [R] Pennsylvania Thank you, Mr. Chairman. At the outset may I say that your work on the committee has been outstanding. You've been here a little more than...
00:08:51	Cardin, Benjamin "Ben" L. - U.S. Senator, [D] Maryland (Inaudible.)
00:08:516 min.	Specter, Arlen - U.S. Senator, [R] Pennsylvania -- acting chairman of the committee, which is quite a testimonial to you. But we've worked together closely in the two years and it's nice...
00:15:4110 sec.	Cardin, Benjamin "Ben" L. - U.S. Senator, [D] Maryland Thank you, Senator Specter. At this time I'll recognize Senator Jack Reed from Rhode Island for the purpose of introductions. Senator...
00:15:512 min.	Reed, John "Jack" F. - U.S. Senator, [D] Rhode Island Thank you, Mr. Chairman. And thank you, Ranking Member Specter. It is an honor to appear here this morning to introduce Dean Elena...
00:18:491 min.	Cardin, Benjamin "Ben" L. - U.S. Senator, [D] Maryland Thank you very much, Senator Reed. I appreciate you being here. At this time I would ask our witnesses to come forward, if they would,...
00:19:5322 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General (Off mike.) I've also got my brother-in-law Kevin, who made the trip from Madison, Wisconsin; I've got Lieutenant -- my extended family...
00:20:154 sec.	Cardin, Benjamin "Ben" L. - U.S. Senator, [D] Maryland Thank you. Dean Kagan.
00:20:1942 sec.	Kagan, Elena - Dean (Off mike) -- and I left most of mine at home. But I have two wonderful brothers who are here -- (off mike) -- from coming down, but my...
00:21:0121 sec.	Cardin, Benjamin "Ben" L. - U.S. Senator, [D] Maryland Well, we welcome your families and we know the sacrifices that they have to make in regards to your public service and we thank them for...
00:21:224 min.	Perrelli, Thomas J. - Deputy Assistant Atty. General Thank you. Mr. Chairman, Senator Specter, and members of the committee, thank you for giving me the opportunity to appear before you as nominee...
00:25:293 sec.	Cardin, Benjamin "Ben" L. - U.S. Senator, [D] Maryland Thank you very much. Dean Kagan.
00:25:326 min.	Kagan, Elena - Dean Thank you, Mr. Chairman. Mr. Chairman and members of the committee, I'm deeply honored to be sitting here today. And, of course, I am grateful....
00:31:411 min.	Cardin, Benjamin "Ben" L. - U.S. Senator, [D] Maryland Well, thank you. We thank both of you for your opening statements. We are going to have seven-minute rounds. And let me start and I'm...
00:33:061 min.	Perrelli, Thomas J. - Deputy Assistant Atty. General Well, Senator, with respect I think the answer to the last part of your question is none. You've identified an area where the Justice Department...
00:34:1660 sec.	Cardin, Benjamin "Ben" L. - U.S. Senator, [D] Maryland That's the answer I expected to hear from you, but let me just caution you. You are responsible for the people that you supervise within...
00:35:1660 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General Well, Senator, the attorney general has already made clear that that will be a significant priority of his. And as the associate, with management...
00:36:1660 sec.	Cardin, Benjamin "Ben" L. - U.S. Senator, [D] Maryland Thank you. Dean Kagan, I very much support your statement of aggressively enforcing the laws of our country, regardless of your personal...
00:37:161 min.	Kagan, Elena - Dean Thank you, Senator Cardin. It's an extremely important question. Every solicitor general nominee who has sat at this table has always, for...
00:39:0615 sec.	Cardin, Benjamin "Ben" L. - U.S. Senator, [D] Maryland I thank you for that response. I would also hope that there would be some transparency in making those judgments so that there's an opportunity...
00:39:2156 sec.	Specter, Arlen - U.S. Senator, [R] Pennsylvania Thank you, Mr. Chairman. Mr. Perrelli, I sent you a letter on the issue of congressional oversight and told you I'd be asking you about...
00:40:1730 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General Senator, the passage that you provided, I agree with respect to the description of the scope of the permissible oversight by Congress that...
00:40:476 sec.	Specter, Arlen - U.S. Senator, [R] Pennsylvania Well, would you supplement your answer by specifying what kind of extenuating circumstances you see to deviate from that standard?
00:40:534 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General Well, I think that certainly you have the situation of executive privilege and how --
00:40:575 sec.	Specter, Arlen - U.S. Senator, [R] Pennsylvania I want you to supplement your answer in writing because I've only got seven minutes.
00:41:02	Perrelli, Thomas J. - Deputy Assistant Atty. General I will do.
00:41:0211 sec.	Specter, Arlen - U.S. Senator, [R] Pennsylvania But you said you would adopt those as a generalization but there might be some extenuating circumstance which would limit it. Please provide...
00:41:13	Perrelli, Thomas J. - Deputy Assistant Atty. General Thank you, Senator.
00:41:1344 sec.	Specter, Arlen - U.S. Senator, [R] Pennsylvania The Washington Post has an account today on the state secrets doctrine. The Obama administration invoked the state secrets privilege as...
00:41:5710 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General Senator, I think with respect to the question about any particular case, I think it would require me to have more knowledge about particular...
00:42:0710 sec.	Specter, Arlen - U.S. Senator, [R] Pennsylvania Well, would you take a look at the case and the statute which Senator Kennedy and I have pending and give us your judgment on that?
00:42:17	Perrelli, Thomas J. - Deputy Assistant Atty. General I will, Senator.
00:42:171 min.	Specter, Arlen - U.S. Senator, [R] Pennsylvania There have been a large number of cases by the Department of Justice in taking monetary fines in the face of gigantic malfeasance. In malfeasance,...
00:44:1325 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General Senator, with respect to that assertion, I think the argument was that Congress cannot, through any vehicle, overturn a prior final court...
00:44:3821 sec.	Specter, Arlen - U.S. Senator, [R] Pennsylvania Well, there is concurrent jurisdiction between the state courts and the federal courts, double jeopardy that a state prosecution doesn't...
00:44:5912 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General I think the argument that we made in that case was that what the impact, the effect of Congress' enactment was essentially to attempt to...
00:45:1110 sec.	Specter, Arlen - U.S. Senator, [R] Pennsylvania Well, that may be the impact. But would you supplement your answer with why you think Congress doesn't have the authority to determine federal...
00:45:21	Perrelli, Thomas J. - Deputy Assistant Atty. General I will do that, Senator.
00:45:212 min.	Specter, Arlen - U.S. Senator, [R] Pennsylvania Dean Kagan, coming to the citation that I had mentioned earlier about how strongly you felt on the Solomon case, you wrote a memo for Justice...
00:47:2923 sec.	Kagan, Elena - Dean Well Senator, thank you for raising that memo. I first looked at that memo -- thought about that memo -- for the first time in 20 years,...
00:47:5210 sec.	Specter, Arlen - U.S. Senator, [R] Pennsylvania You don't have to go any further. (Laughter) What are you -- you're telling us you won't make that same mistake again.
00:48:025 sec.	Kagan, Elena - Dean You should never make the same mistake twice.
00:48:071 min.	Specter, Arlen - U.S. Senator, [R] Pennsylvania I wish I could follow that advice. (Scattered laughter.) One final question, Mr. Chairman. In a whole series of memos which you sent...
00:50:022 min.	Kagan, Elena - Dean That's a very interesting question Senator. You know, the Supreme Court's jurisdiction is of course discretionary and the Supreme Court...
00:52:22	Specter, Arlen - U.S. Senator, [R] Pennsylvania Thank you, Ms. Hagan. Thank you, Mr. Chairman.
00:52:226 sec.	Cardin, Benjamin "Ben" L. - U.S. Senator, [D] Maryland Thank you. Senator Feingold.
00:52:281 min.	Feingold, Russell "Russ" - U.S. Senator, [D] Wisconsin Thank you, Mr. Chairman. Dean Kagan, congratulations on your nomination. I was personally delighted when you were appointed, having followed...
00:53:4937 sec.	Kagan, Elena - Dean Absolutely. There is simply no question that when one assumes the solicitor general's role, one is assuming a set of responsibilities, a...
00:54:2612 sec.	Feingold, Russell "Russ" - U.S. Senator, [D] Wisconsin I agree with that. And he did do a superb job, and I could have sworn he almost was believing what he was saying (scattered laughter) that...
00:54:384 sec.	Kagan, Elena - Dean For that day he was persuaded, and that's all you need.
00:54:4260 sec.	Feingold, Russell "Russ" - U.S. Senator, [D] Wisconsin Let me ask you, now, about the conflict of interest restriction on those who serve in the solicitor general's office. And somewhat ironic,...
00:55:4223 sec.	Kagan, Elena - Dean I will, Senator Feingold. To be truthful, this is not a question that I've thought anything about, or know anything about. And in my own...
00:56:051 min.	Feingold, Russell "Russ" - U.S. Senator, [D] Wisconsin Thank you so much. Mr. Perrilli. I congratulate you as well. You have a truly stellar reputation. And I'm pleased that you've agreed to...
00:57:2857 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General Senator, with respect to the particular case, I think I would need to consult with others at the department about what information is most...
00:58:25	Feingold, Russell "Russ" - U.S. Senator, [D] Wisconsin But you will, if confirmed --
00:58:25	Perrelli, Thomas J. - Deputy Assistant Atty. General If --
00:58:257 sec.	Feingold, Russell "Russ" - U.S. Senator, [D] Wisconsin -- give me an answer about whether I'll get a classified briefing on this.
00:58:32	Perrelli, Thomas J. - Deputy Assistant Atty. General I will give you an answer, if confirmed, Senator.
00:58:3217 sec.	Feingold, Russell "Russ" - U.S. Senator, [D] Wisconsin And I just want to confirm -- I believe that you've indicated to Senator Specter that you would take a close look at the legislation that...
00:58:493 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General I will, Senator, and I look forward to speaking with the committee about that if I'm confirmed.
00:58:5229 sec.	Feingold, Russell "Russ" - U.S. Senator, [D] Wisconsin There's a lot of suspicion of the government out there, and this is important legislation that the department should be behind. I think...
00:59:2133 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General Senator, I appreciate the question. In my prior service at the Department of Justice I have served as counsel to the attorney general with...
00:59:54	Feingold, Russell "Russ" - U.S. Senator, [D] Wisconsin Thank you. Thanks, Mr. Chairman.
00:59:544 sec.	Cardin, Benjamin "Ben" L. - U.S. Senator, [D] Maryland Thank you, Senator Feingold. Senator Coburn?
00:59:5837 sec.	Coburn, Thomas "Tom" A. M.D. - U.S. Senator, [R] Oklahoma Thank you, and welcome to you both. Ms. Kagan, one of the things that you said earlier was explaining your role in terms of all three branches...
01:00:351 min.	Kagan, Elena - Dean That's a very interesting hypothetical question, Senator. I'll say a little bit about a process first, because the first thing that...
01:01:5543 sec.	Coburn, Thomas "Tom" A. M.D. - U.S. Senator, [R] Oklahoma Okay, thank you very much. Of all I've read, the only real criticism that you've had is that you've not been a litigant in the past, and...
01:02:3810 sec.	Kagan, Elena - Dean I think it's a very fair and important question. I'm very confident that I'm up to this part of the job, as I am to all the many other parts...
01:02:48	Coburn, Thomas "Tom" A. M.D. - U.S. Senator, [R] Oklahoma I have no doubt.
01:02:481 min.	Kagan, Elena - Dean And I'll tell you a little bit about why. I think when you get up to that podium at the Supreme Court, the question is much less how many...
01:04:1412 sec.	Coburn, Thomas "Tom" A. M.D. - U.S. Senator, [R] Oklahoma And some of them, the record would show, had some difficulties in their presentations before the courts as well. So I'm not accusing you...
01:04:262 sec.	Kagan, Elena - Dean Now I want to know who you mean. (Laughter.)
01:04:2814 sec.	Coburn, Thomas "Tom" A. M.D. - U.S. Senator, [R] Oklahoma Well, my staff is going to invite you to come by and visit with me, so we'll have a great conversation on that. Mr. Perrelli, I have a few...
01:04:428 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General Thank you, Senator. I have been heard to say that you are the most important member of this committee to me, at least today. (Laughter.)
01:04:5032 sec.	Coburn, Thomas "Tom" A. M.D. - U.S. Senator, [R] Oklahoma Mr. Perrelli, the Department of Justice is responsible for enforcing our nation's obscenity and child exploitation laws. The one thing that...
01:05:2239 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General Senator, with respect to that act, I think that it is likely that the responsibility for that will not fall within the associate attorney...
01:06:018 sec.	Coburn, Thomas "Tom" A. M.D. - U.S. Senator, [R] Oklahoma The same would apply for the Children's Internet Protection Act and the Child Protection Obscenity Enforcement Act of '88 -- the same answer?
01:06:0910 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General To the best of my knowledge those would be most likely to fall under the criminal jurisdiction for enforcement purposes that defense of...
01:06:1913 sec.	Coburn, Thomas "Tom" A. M.D. - U.S. Senator, [R] Oklahoma Do you think any of your past experience in terms of those that you've defended or advocated for will affect your abilities to enforce,...
01:06:32	Perrelli, Thomas J. - Deputy Assistant Atty. General No, I do not, Senator.
01:06:3238 sec.	Coburn, Thomas "Tom" A. M.D. - U.S. Senator, [R] Oklahoma Thank you. Last year I participated in legislation targeting combating child exploitation and enhancing the enforcement of child exploitation...
01:07:1011 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General Senator, I think with respect to any enactment of Congress, my role will be to defend that statute if any reasonable argument can be made,...
01:07:2112 sec.	Coburn, Thomas "Tom" A. M.D. - U.S. Senator, [R] Oklahoma One final question. Do you personally believe that adult obscenity contributes to the sexual exploitation of children in any way?
01:07:3320 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General Senator, I can't say that I have any recollection of looking at social science at all, but I would say that there is -- we have to do everything...
01:07:5311 sec.	Coburn, Thomas "Tom" A. M.D. - U.S. Senator, [R] Oklahoma But it's not your view that that in itself, adult obscenity, contributes to child exploitation?
01:08:0433 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General I have not looked -- with respect to adult obscenity -- and we're talking about unlawful materials -- I think those are criminal and need...
01:08:3712 sec.	Coburn, Thomas "Tom" A. M.D. - U.S. Senator, [R] Oklahoma I'll be happy to send you the literature on adult obscenity and child predators. Thank you, Mr. Chairman. And I would ask unanimous consent....
01:08:4933 sec.	Cardin, Benjamin "Ben" L. - U.S. Senator, [D] Maryland Without objection. And at this point it might be appropriate, Senator Coburn, to just put into the record the documentation we have in support...
01:09:221 min.	Klobuchar, Amy - U.S. Senator, [D] Minnesota Thank you very much, Mr. Chairman. Congratulations to both of you. Dean Kagan, I noted that when Senator Reid was introducing you he didn't...
01:10:541 min.	Kagan, Elena - Dean Well, thank you, Senator. It's an interesting question, and I think I'm going to disappoint you on it a little bit because my basic view...
01:12:2511 sec.	Klobuchar, Amy - U.S. Senator, [D] Minnesota And I don't question the solicitor general's role with that at all. I was just wondering, some of the decisions that are made not to become...
01:12:365 sec.	Kagan, Elena - Dean Well, you can see why when the government wins the case --
01:12:41	Klobuchar, Amy - U.S. Senator, [D] Minnesota No, I know, but, I mean, there has just been --
01:12:415 sec.	Kagan, Elena - Dean -- one would want to rest there. (Laughter.)
01:12:466 sec.	Klobuchar, Amy - U.S. Senator, [D] Minnesota I understand that. I just meant becoming involved in those cases because we've just seen some inconsistencies over time.
01:12:524 sec.	Kagan, Elena - Dean Yes, and it's very interesting. I would love to talk to you about this further and to hear some examples of that.
01:12:5614 sec.	Klobuchar, Amy - U.S. Senator, [D] Minnesota Okay. Thank you. Mr. Perrelli, I do note that your son seemed to quite down when he was given a BlackBerry. Is that right? (Laughter.) That's...
01:13:10	Perrelli, Thomas J. - Deputy Assistant Atty. General It is sad but true.
01:13:10	Klobuchar, Amy - U.S. Senator, [D] Minnesota Okay.
01:13:104 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General I do believe that our children mimic what they see from their parents.
01:13:1452 sec.	Klobuchar, Amy - U.S. Senator, [D] Minnesota All right, good. Well, I was a prosecutor for eight years, running an office of about 400 people, and one of the things that was most troubling...
01:14:061 min.	Perrelli, Thomas J. - Deputy Assistant Atty. General Well, Senator, I think it is an important question. And the experience of having worked through the transition process I think demonstrated...
01:15:1525 sec.	Klobuchar, Amy - U.S. Senator, [D] Minnesota One of the other things that I think is so important is how the Department of Justice works with local county attorneys and local prosecutors...
01:15:4057 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General Certainly, Senator, and it's a critically important question because I think we all have to be pulling the oars together in order to make...
01:16:3724 sec.	Klobuchar, Amy - U.S. Senator, [D] Minnesota And I'm out of time here, but two areas that I hope you'll consider in the future is just white collar crime area, the fraud area, and how...
01:17:01	Perrelli, Thomas J. - Deputy Assistant Atty. General I will, Senator.
01:17:01	Klobuchar, Amy - U.S. Senator, [D] Minnesota Thank you.
01:17:013 sec.	Cardin, Benjamin "Ben" L. - U.S. Senator, [D] Maryland Senator Kyl.
01:17:0434 sec.	Kyl, Jon - U.S. Senator, [R] Arizona Thank you, Mr. Chairman. Dean Kagan, I'd like to ask a favor. If you would please read, and then when you're finished give me your thoughts...
01:17:38	Kagan, Elena - Dean Senator, if I may?
01:17:38	Kyl, Jon - U.S. Senator, [R] Arizona Yes.
01:17:389 sec.	Kagan, Elena - Dean I was told yesterday -- I suppose one of your staff said that you had an interest in this article, and I did read that article.
01:17:47	Kyl, Jon - U.S. Senator, [R] Arizona Well, good. I didn't want to catch you by surprise.
01:17:4718 sec.	Kagan, Elena - Dean No, it was very fair, but I just want to say I completely agree with you. I think it's a very thoughtful, powerful article about the SG's...
01:18:053 min.	Kyl, Jon - U.S. Senator, [R] Arizona For those who haven't, it's a bit of a template for how an SG approaches decision-making about what cases to take and how to proceed, among...
01:21:112 min.	Kagan, Elena - Dean I appreciate it. And first, let me -- let me say I completely agree with you on the necessity of wisdom and judgment as opposed to just...
01:23:111 min.	Kyl, Jon - U.S. Senator, [R] Arizona Sure, I appreciate that. The greatest knowledgeable surgeon, though, still has to get those fingers working to do the right kind of sewing....
01:24:1955 sec.	Kagan, Elena - Dean I absolutely would have, Senator, and I'm glad you asked that question because the answer is clear. The 3rd Circuit, of course, held the...
01:25:144 sec.	Kyl, Jon - U.S. Senator, [R] Arizona Again, thank you, and I would appreciate the chance just to visit privately for a little bit.
01:25:1859 sec.	Cardin, Benjamin "Ben" L. - U.S. Senator, [D] Maryland Senator Kyl, thank you for your inquiry. Let me just, if I might, put into the record -- I think it's appropriate at this point -- the letter...
01:26:171 min.	Feinstein, Dianne - U.S. Senator, [D] California Thank you very much, Mr. Chairman, and welcome to the both of you and congratulations and certainly Ms. Kagan as the first woman it is a...
01:27:3360 sec.	Kagan, Elena - Dean Well, Senator, you ask a question that I do think goes to the role of the Solicitor General's Office because in that case the Solicitor...
01:28:3325 sec.	Feinstein, Dianne - U.S. Senator, [D] California Yes, well of course, there are many of us. I happen to be one that believed that the EPA was very politicized in the past administration;...
01:28:5813 sec.	Kagan, Elena - Dean I think that the presumption is just like the presumption is that the solicitor general's office defends statutes; the presumption is that...
01:29:1114 sec.	Feinstein, Dianne - U.S. Senator, [D] California Okay. Let me switch topics and ask, are you both familiar with the bill that we spent a great deal of time on in the last session, and that's...
01:29:25	Perrelli, Thomas J. - Deputy Assistant Atty. General Senator, I'm generally familiar with it.
01:29:253 sec.	Kagan, Elena - Dean The same.
01:29:281 min.	Feinstein, Dianne - U.S. Senator, [D] California How about you, Ms. Kagan? Well, you mentioned the Jackson formula from Youngstown. And as you know, with the Terrorist Surveillance Program,...
01:31:0029 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General Senator, I haven't looked at the exclusivity provisions for that precise purpose. I would, echoing Dean Kagan speaking before, certainly...
01:31:29	Feinstein, Dianne - U.S. Senator, [D] California Ms. Kagan?
01:31:296 sec.	Kagan, Elena - Dean I can't say anything more than that.
01:31:357 sec.	Feinstein, Dianne - U.S. Senator, [D] California Okay. Have either of you had an opportunity to review the Geneva Conventions?
01:31:423 sec.	Kagan, Elena - Dean Again, generally, Senator.
01:31:459 sec.	Feinstein, Dianne - U.S. Senator, [D] California With respect to the laws of war, which essentially cover the detention of an enemy combatant for the duration of the conflict?
01:31:547 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General Senator, I've had occasion to review that in the context of reviewing the Supreme Court's decisions in that area to date.
01:32:0115 sec.	Feinstein, Dianne - U.S. Senator, [D] California Well, let me ask you this question, then. Do you believe they are sufficient to detain an individual who is found to be an enemy combatant...
01:32:1628 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General Senator, I think I would want to consult further with experts in the field. The description from your question sounds similar to, at least...
01:32:4452 sec.	Feinstein, Dianne - U.S. Senator, [D] California The reason I raise this is because I think it's going to be a fundamental question as we consider the end planning for detainees as Guantanamo...
01:33:3616 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General Well, Senator, I think, as I indicated, my understanding is that that is indeed what the Hamdi case held. And certainly I think the president...
01:33:52	Feinstein, Dianne - U.S. Senator, [D] California Thank you. Thank you, Mr. Chairman.
01:33:524 sec.	Cardin, Benjamin "Ben" L. - U.S. Senator, [D] Maryland Thank you. Senator Graham.
01:33:5620 sec.	Graham, Lindsey - U.S. Senator, [R] South Carolina To pick up where Senator Feinstein left off, which is an excellent question -- and this country needs to discuss this openly and, quite...
01:34:163 sec.	Kagan, Elena - Dean Under normal criminal law? Yes, I do agree with you.
01:34:197 sec.	Graham, Lindsey - U.S. Senator, [R] South Carolina And if you had a criminal statute that would allow someone to be held forever without trial, it would no longer be criminal law; it'd be...
01:34:26	Kagan, Elena - Dean That seems right, Senator.
01:34:268 sec.	Graham, Lindsey - U.S. Senator, [R] South Carolina Okay. Now, if one's at war -- let me ask this. Do you believe we're at war?
01:34:34	Kagan, Elena - Dean I do, Senator.
01:34:346 sec.	Graham, Lindsey - U.S. Senator, [R] South Carolina Okay, let me read from Mr. Holder. Would you consider him your boss?
01:34:404 sec.	Kagan, Elena - Dean (Laughs.) In a manner of speaking, Senator. I guess he can fire me, so that makes him my boss.
01:34:446 sec.	Graham, Lindsey - U.S. Senator, [R] South Carolina Okay. Well, that would make him your boss. But it seems to be -- I think he'd be a good boss.
01:34:50	Kagan, Elena - Dean I think so too.
01:34:5028 sec.	Graham, Lindsey - U.S. Senator, [R] South Carolina And I think you'd be very qualified for your job. I asked him, "Do you think we're at war?" And he says, "I don't think there's any question...
01:35:183 sec.	Kagan, Elena - Dean It's easy to agree with my boss in that circumstance.
01:35:2154 sec.	Graham, Lindsey - U.S. Senator, [R] South Carolina Okay. I asked him where the battlefield might be. If we're at war, I asked him where would the battlefield be. And he gave what I thought...
01:36:15	Kagan, Elena - Dean (Off mike.)
01:36:1543 sec.	Graham, Lindsey - U.S. Senator, [R] South Carolina Well, I certainly do too. And I told him I thought what he was speaking of was the moral high ground. There's a physical high ground in...
01:36:58	Kagan, Elena - Dean I do.
01:36:5856 sec.	Graham, Lindsey - U.S. Senator, [R] South Carolina So that gets us back to Senator Feinstein's question. Under the law of armed conflict, as I understand it, under the Geneva Convention,...
01:37:543 sec.	Kagan, Elena - Dean I think it makes sense, and I think you're correct that that is the law.
01:37:5738 sec.	Graham, Lindsey - U.S. Senator, [R] South Carolina So America needs to get ready for this proposition that some people are going to be detained as enemy combatants, not criminals, and there...
01:38:35	Kagan, Elena - Dean It does, indeed.
01:38:354 sec.	Graham, Lindsey - U.S. Senator, [R] South Carolina It has to have substantial due process.
01:38:39	Kagan, Elena - Dean It does, indeed.
01:38:395 sec.	Graham, Lindsey - U.S. Senator, [R] South Carolina And it should have an independent judiciary involved in making that decision beyond the executive branch. Do you agree with that?
01:38:44	Kagan, Elena - Dean Absolutely.
01:38:4420 sec.	Graham, Lindsey - U.S. Senator, [R] South Carolina So we can go tell the world that this person is being held off the battlefield not because one person says so but because there's a process...
01:39:04	Kagan, Elena - Dean I do, Senator.
01:39:041 min.	Graham, Lindsey - U.S. Senator, [R] South Carolina I look forward to working with you and this new administration how to come up with a process that will make that statement, to let the world...
01:40:2944 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General Well, I think, Senator, simply by identifying the problem, whatever mechanisms and laws we have in place currently don't seem to be addressing...
01:41:136 sec.	Graham, Lindsey - U.S. Senator, [R] South Carolina Well, thank you, both. I think you are excellent choices, and you'll do a good job for the country. And I look forward to supporting you.
01:41:19	Kagan, Elena - Dean Thank you, Senator.
01:41:19	Perrelli, Thomas J. - Deputy Assistant Atty. General Thank you, Senator.
01:41:194 sec.	Cardin, Benjamin "Ben" L. - U.S. Senator, [D] Maryland Thank you. Senator Whitehouse.
01:41:232 min.	Whitehouse, Sheldon - U.S. Senator, [D] Rhode Island Thank you. Just to follow up on Senator Graham's question, we passed legislation very recently that would set up an intellectual property...
01:43:353 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General I certainly can make that assurance, Senator.
01:43:3818 sec.	Kagan, Elena - Dean Senator, I can as well. And one of the glories of the Solicitor General's Office is that even in some very difficult times for the Justice...
01:43:562 min.	Whitehouse, Sheldon - U.S. Senator, [D] Rhode Island It has distinguished itself in that regard. We've heard disturbing testimony about the disassembly of traditional civil service safeguards...
01:46:061 min.	Perrelli, Thomas J. - Deputy Assistant Atty. General Well, Senator, I think it is an important question. And I think there's no question on a forward-looking basis that we have to do everything...
01:47:1713 sec.	Whitehouse, Sheldon - U.S. Senator, [D] Rhode Island So you are completely confident that the existing performance evaluation and review process at the department is adequate to the task of...
01:47:3022 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General I can't say that I'm completely confident. It's something I would want to look at, if I'm confirmed, with the attorney general and others. But...
01:47:5247 sec.	Whitehouse, Sheldon - U.S. Senator, [D] Rhode Island Well, I certainly hope that that's the case. And I'm prepared to accept that it may be the case. But I'm not convinced yet. And from my...
01:48:39	Kagan, Elena - Dean Thank you, Senator.
01:48:39	Perrelli, Thomas J. - Deputy Assistant Atty. General Thank you, Senator.
01:48:393 sec.	Cardin, Benjamin "Ben" L. - U.S. Senator, [D] Maryland Senator Hatch.
01:48:4217 sec.	Hatch, Orrin - U.S. Senator, [R] Utah Well, thank you, Mr. Chairman. I welcome both of you to the committee. I have great respect for both of you and appreciate the fact that...
01:48:59	Kagan, Elena - Dean Thank you.
01:48:591 min.	Hatch, Orrin - U.S. Senator, [R] Utah No question about it. And I think it's evident by a number of the professors who are here today, a number of whom I consider close friends...
01:50:468 sec.	Kagan, Elena - Dean Senator, I don't know the case, and I'm not sure I understand which solicitor general did what, when.
01:50:544 sec.	Hatch, Orrin - U.S. Senator, [R] Utah Well, the first solicitor general in President Clinton's tenure.
01:50:584 sec.	Kagan, Elena - Dean I see. And then -- but then it was defended later?
01:51:028 sec.	Hatch, Orrin - U.S. Senator, [R] Utah Yeah, it was. Well, actually, it turned out, I think, all right in the end, but that was the (argument ?).
01:51:1017 sec.	Kagan, Elena - Dean Well, either way, Senator, I would have no difficulty in this area whatsoever. I mean, I would have no difficulty in any area defending...
01:51:2716 sec.	Hatch, Orrin - U.S. Senator, [R] Utah Well, in your book -- in your review of Professor Stephen Carter's book on the confirmation process you wrote that the Senate should ask...
01:51:43	Kagan, Elena - Dean The -- ?
01:51:4311 sec.	Hatch, Orrin - U.S. Senator, [R] Utah -- even about votes they would cast. How do you square this with the principle that judges must be impartial, and with the oath they take...
01:51:5411 sec.	Kagan, Elena - Dean It's a great question, Senator. And I'm not sure that, sitting here today, I would agree with that statement. I wrote that piece -- after...
01:52:0524 sec.	Hatch, Orrin - U.S. Senator, [R] Utah (If you) want to know the truth, I remember when Judge Bork was here, he had written some outlandish things from time to time but he was...
01:52:29	Kagan, Elena - Dean Right, right.
01:52:29	Hatch, Orrin - U.S. Senator, [R] Utah And you're good at that.
01:52:2940 sec.	Kagan, Elena - Dean (Laughs.) Well, thank you, Senator. I was just going to say, you know, I wrote that when I was in the position of sitting where the staff...
01:53:0936 sec.	Hatch, Orrin - U.S. Senator, [R] Utah Let me just say that I may not agree that Thurgood Marshall was the greatest attorney of the last century, but I agree (that) he was one...
01:53:45	Perrelli, Thomas J. - Deputy Assistant Atty. General (Laughs.)
01:53:451 min.	Hatch, Orrin - U.S. Senator, [R] Utah If you are confirmed to be associate attorney general you will oversee the Justice Department's Civil Rights Division. In the last several...
01:55:0053 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General Well, Senator, it's an important question. And I agree with you that we need to continue the efforts of the Civil Rights Division in protecting...
01:55:5326 sec.	Hatch, Orrin - U.S. Senator, [R] Utah Well, thank you. I want to -- I want to express my regard for both of you. And I've really enjoyed listening to your comments here today....
01:56:19	Perrelli, Thomas J. - Deputy Assistant Atty. General (Laughs.)
01:56:195 sec.	Hatch, Orrin - U.S. Senator, [R] Utah But, glad to have you here and glad you're willing to serve.
01:56:24	Kagan, Elena - Dean Thank you, Senator.
01:56:24	Perrelli, Thomas J. - Deputy Assistant Atty. General Thank you, Senator.
01:56:243 sec.	Cardin, Benjamin "Ben" L. - U.S. Senator, [D] Maryland Thank you, Senator Hatch. Senator Wyden.
01:56:2747 sec.	Wyden, Ronald "Ron" Lee - U.S. Senator, [D] Oregon Thank you, Mr. Chairman. I want to welcome both of our witnesses as well. I know we have votes, and both Mr. Kaufman -- Senator Kaufman...
01:57:141 min.	Perrelli, Thomas J. - Deputy Assistant Atty. General Well, Senator, I appreciate the question. And I agree that as we -- particularly in the current phase of the economy that we're in, we need...
01:58:4015 sec.	Wyden, Ronald "Ron" Lee - U.S. Senator, [D] Oregon You've told me that you'd look at putting more agents on it, and more U.S. attorneys. I want to hold the record open on this point, because...
01:58:55	Perrelli, Thomas J. - Deputy Assistant Atty. General I can, Senator.
01:58:5530 sec.	Wyden, Ronald "Ron" Lee - U.S. Senator, [D] Oregon Very good. Second point for you, you represented the Recording Industry Association, and there there was an aggressive effort to pursue individuals...
01:59:2525 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General Senator, with respect to the enforcement of the criminal copyright laws, that, again, would likely fall within the Criminal Division so...
01:59:50	Wyden, Ronald "Ron" Lee - U.S. Senator, [D] Oregon And you would support that?
01:59:504 sec.	Perrelli, Thomas J. - Deputy Assistant Atty. General I'd have not reason to disagree with it.
01:59:541 min.	Wyden, Ronald "Ron" Lee - U.S. Senator, [D] Oregon Okay. One question for you, Ms. Kagan -- and I share Senator Hatch's views about your qualifications and we're looking forward to your confirmation....
02:01:145 sec.	Kagan, Elena - Dean Senator, I appreciate the question but I have this urge, actually, to stay up at 50,000 feet --
02:01:19	Wyden, Ronald "Ron" Lee - U.S. Senator, [D] Oregon I got the drift. (Laughter.)
02:01:1941 sec.	Kagan, Elena - Dean -- for the reasons that you say -- you know, the president has authorized a review of this case, and all the various ways of dealing with...
02:02:0018 sec.	Wyden, Ronald "Ron" Lee - U.S. Senator, [D] Oregon Well, tell me, then, about the balance -- the Constitutional balance, as you would think about it. I mean, what our country's always been...
02:02:1813 sec.	Kagan, Elena - Dean Fighting terrorism ferociously and also fighting terrorism within the rule of law. And those are the two things that you have to make sure...
02:02:31	Wyden, Ronald "Ron" Lee - U.S. Senator, [D] Oregon Thank you, Mr. Chairman.
02:02:314 sec.	Cardin, Benjamin "Ben" L. - U.S. Senator, [D] Maryland Senator Kaufman.
02:02:351 min.	Kaufman, Edward "Ted" E. - U.S. Senator, [D] Delaware Thank you, Mr. Chairman. Dean Kagan, Mr. Perrelli, I'm really pleased that you're taking on these new assignments. Although, Dean...
02:04:02	Perrelli, Thomas J. - Deputy Assistant Atty. General Thank you, Senator.
02:04:022 min.	Cardin, Benjamin "Ben" L. - U.S. Senator, [D] Maryland Thank you, Senator Kaufman. Let me just echo what Senator Kaufman has just said, and thank both of you for (being) willing to serve our...