DOJ Nominee Defends Comparing 9/11 'Criminal Acts' to ‘Rape, Child Abuse, and Murder’

By Fred Lucas | June 16, 2010 | 11:37 AM EDT

Justice Department seal (From the U.S. Department of Justice Web site)

Washington ( – President Barack Obama’s nominee to be the number two official at the Justice Department spent Tuesday morning explaining to senators his views on military commissions, Miranda warnings for terror suspects, and a 2002 article he wrote describing the 9/11 terrorist attacks as "criminal acts" as horrible as "rape, child abuse and murder."

James M. Cole, the nominee to be the new deputy attorney general, told the Senate Judiciary Committee that military trials should be one of many options for prosecuting terrorism. This apparently is a slightly revised view from what Cole expressed in a Sept. 9, 2002 Legal Times commentary in opposition to the military courts.

“We must use every resource we have and the attorney general must use every resource he has to fight this scourge,” Cole said of terrorism during his confirmation hearing. “The point of the article that I wrote in 2002 was to state that we must do so consistent with the rule of law. It was not meant to address whether or not we are at war. It was meant to deal with how we deal with one of the most devastating problems presented to our country.”

However, in his 2002 article, Cole wrote: “For all the rhetoric about war, the Sept. 11 attacks were criminal acts of terrorism against a civilian population, much like the terrorist acts of Timothy McVeigh in blowing up the federal building in Oklahoma City, or of Omar Abdel-Rahman in the first effort to blow up the World Trade Center. The criminals responsible for these horrible acts were successfully tried and convicted under our criminal justice system, without the need for special procedures that altered traditional due process rights.” (See earlier story.)

The article continued, “Our country has faced many forms of devastating crime, including the scourge of the drug trade, the reign of organized crime, and countless acts of rape, child abuse, and murder. The acts of Sept. 11 were horrible, but so are these other things.”

Cole told the Senate panel that the U.S. Supreme Court “stated those military commissions, as they were constituted,” were not consistent with the rule of law.

“We must use every tool we have,” Cole said. “That includes both military commissions and Article 3 courts.”

Sen. Jeff Sessions (R-Ala.)

However, Sen. Jeff Sessions (R-Ala.), the ranking member of the Judiciary Committee, further questioned Cole about his 2002 article.

“You didn’t suggest improving military commissions,” Sessions told Cole.  “You basically flatly stated that these were crimes and they should be prosecuted as crimes. I didn’t see that in that op-ed. It was a position directly critical of military commissions. Now, are you saying that you left something out?”

Cole answered that military tribunals should be one option.

“I support a military commission that conforms with the rule of law,” Cole said. “Sometimes it’s right to go with an Article 3 court. Sometimes it’s right to go with a military commission.”

Sen. John Cornyn (R-Texas) expressed concerns about Miranda warnings issued to terror suspects.

“When you detain someone and read them their Miranda rights, the first thing you tell them is their right to remain silent. Is that correct?”

Cole said, “That is probably the first part.”
Senator Cornyn then asked, “Why in the world would you read a suspected terrorist Miranda rights if, in fact, the first thing you want from someone who has committed a terrorist act is to find out more information about their association, their planning, and their knowledge of the terror networks? Why would you tell them first thing, right out of the starting gates, that they have the right to remain silent? Or would you not support reading Miranda rights to suspected terrorists?”

Cole said, “Senator, Miranda is a constitutional requirement, as the Supreme Court has said, not a statute. There is an exception: the public safety exception. When you capture a terrorist and there is a ticking time bomb, you can ask all the questions you want without Miranda to secure public safety.”

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) praised Cole’s nomination to the post.

“He is an experienced prosecutor and has a well-deserved reputation for fairness, integrity and toughness,” Leahy said. “He has a great familiarity with the criminal justice system and the Department of Justice. He understands the issues of crime and national security that are at the center of the deputy attorney general’s job.”

Cole spent 13 years as a prosecutor in the Justice Department before going into private practice in 1995 at the Washington firm of Bryan Cave.

Cole was an independent consultant at insurance giant AIG as a result of a 2004 settlement with the government, in which AIG agreed to pay $126 million to settle federal allegations that it helped two customer companies commit accounting fraud.

Cole examined certain transactions by the company between 2000 and 2004 to determine whether any related parties violated accounting rules to achieve certain results. AIG nearly folded in late 2008 during the credit crisis, but stayed afloat after receiving a government bailout worth more than $180 billion.

“Your role as compliance manager at AIG in the years leading up to the 2008 financial crisis and the $182 billion bailout of AIG is also troubling,” Sessions said during his opening statement. “You were entrusted to monitor that company and put effective controls in place. Several respected whistleblower organizations raised questions about your nomination in light of the AIG matter.”

In his opening statement, Cole said, “In 2005, I was selected by the Justice Department and the SEC to serve as an independent monitor of AIG. I was first tasked by court order to look at five years of transactions to determine if AIG assisted any of its clients to ‘cook the books’ through the use of complex transactions. That work led to another appointment in 2006, in which I developed financial reporting and regulatory compliance programs. The company resisted some of my efforts, but I insisted on tough measures.”

Cole was also the special counsel to the House Ethics Committee’s investigation into House Speaker Newt Gingrich in the mid-1990s.

As an attorney for the firm Bryan Cave, Cole worked with the accounting firm Arthur Andersen on records management and compliance procedures during the Enron scandal.

It was at Bryan Cave where Cole worked with former Republican Sen. John Danforth of Missouri, who testified to the committee on Tuesday in favor of the nomination.

“I consider Jim to be a lawyer’s lawyer,” Danforth said of Cole. “I have seen no ideological or political bone in his body.”