James Cole appears poised for confirmation as assistant attorney general, but his nomination has given Senate Republicans a fresh opportunity to blast the Obama administration on national security issues.
During his confirmation hearing Tuesday before the Senate Judiciary Committee, Cole was criticized for his support of reading Miranda rights to terror suspects and for earlier statements he made against trying them in military tribunals.
“Frankly, I am concerned what kind of signal your nomination sends,” ranking member Jeff Sessions said. “What is the president saying about his determination about how to proceed against these enemy combatants who threaten the United States?”
The Alabama Republican highlighted a 2002 editorial by Cole that was highly critical of the Bush administration’s handling of terrorism suspects. Sessions sought to paint Cole as weak on national security, and he directed that criticism more broadly to Obama’s Justice Department.
“The top officials within the Department of Justice must reject this blind adherence to the pre-9/11 criminal law mindset,” Sessions said. “On that note, I should add that I am concerned that so many department nominees and officials have made statements similar to yours.”
Cole tried to temper those concerns, saying that both military tribunals and criminal trials should be used for terrorism suspects. He pledged to work with Republicans to find compromise on the debate, which escalated last year when Attorney General Eric Holder announced he would try Sept. 11 suspects in criminal court in Manhattan.
“We must use every tool we have to fight terrorism,” Cole told Members.
National Republican Senatorial Committee Chairman John Cornyn (Texas) used the hearing to grill Cole on another controversial issue — the FBI’s decision to read Miranda warnings to Umar Farouk Abdulmutallab, who is accused of trying to bomb a Northwest Airlines jet Dec. 25, after finishing an initial round of questioning following the attack.
Cornyn asked why a terror suspect should be granted the right to remain silent, suggesting that interrogating the suspect could be crucial for gathering intelligence.
Cole, who worked for more than 12 years as a prosecutor at the Justice Department, responded, “My experience, frankly, in criminal law for 30 years is that frequently after being given Miranda warnings and after being given a lawyer, defendants and people who are being detained talk, and they talk a lot.”
Republicans also questioned Cole’s tenure at American International Group Inc., where he was tasked with overseeing the now-defunct company’s disclosure policies. Cole most recently was a partner at the Washington law firm Bryan Cave.
If confirmed, Cole would replace David Ogden in the Justice Department’s No. 2 spot. Ogden left the post in February citing personal reasons, although aides say that long-simmering tensions with Holder prompted his departure. Cole’s close ties with Holder were considered an asset when he was nominated last month.
But Republicans suggest those ties could be a liability, and his nomination provides a fresh messaging strategy to a party that more recently has been focused on deficit spending and health care.
“Cole’s nomination will focus not only on his controversial positions, but how this administration wants to fight the war on terror — either as a national security issue or a law enforcement issue,” a Republican Senate aide said.
Still, Republican Sens. Orrin Hatch (Utah) and Lindsey Graham (S.C.) predicted that Cole would ultimately be confirmed, although the committee likely will not hold a vote until after it completes confirmation hearings for Elena Kagan, who has been nominated to the Supreme Court. That likely punts action until mid-July, but Judiciary Chairman Patrick Leahy still made the case for moving swiftly on Cole.
“The deputy attorney general is pivotal to the continued restoration of the Justice Department,” the Vermont Democrat said. “This is a crucial position that we should work to fill without unnecessary delay.”