S. Hrg. 111-268
OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
JUNE 17, 2009
__________
Serial No. J-111-30
__________
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York JON KYL, Arizona
RICHARD J. DURBIN, Illinois LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
RON WYDEN, Oregon
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
Bruce A. Cohen, Chief Counsel and Staff Director
Matt Miner, Republican Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Cardin, Hon. Benjamin L., a U.S. Senator from the State of
Maryland, prepared statement................................... 128
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 143
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 3
prepared statement........................................... 145
WITNESSES
Holder, Eric H., Jr., Attorney General, Department of Justice,
Washington, D.C................................................ 7
QUESTIONS AND ANSWERS
Responses of Eric H. Holder, Jr., to questions submitted by
Senators Leahy, Feingold, Schumer, Whitehouse, Wyden, Hatch,
Grassley, Kyl and Coburn....................................... 59
SUBMISSIONS FOR THE RECORD
Holder, Eric H., Jr., Attorney General, Department of Justice,
Washington, D.C., statement.................................... 129
OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE
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WEDNESDAY, JUNE 17, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:02 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Kohl, Feinstein, Feingold,
Schumer, Durbin, Cardin, Whitehouse, Klobuchar, Kaufman,
Specter, Sessions, Hatch, Kyl, Graham, Cornyn, and Coburn.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. I was talking with Senator Sessions just a
couple of minutes ago. Like so many of us, he has to vote in
another Committee, and I told him for a traditional opening
statement, the Ranking Member, once he arrives, we will yield
to him. But he said he had no objection to us going ahead.
I do welcome Attorney General Holder back to the Senate
Judiciary Committee. I do enjoy welcoming him as Attorney
General and not as the nominee for Attorney General. And I want
to commend, you, Mr. Attorney General, and your team for your
hard work and your commitment to the task, an absolutely vital
task in this country, to restore the Department of Justice back
to being the Department of Justice.
We have all talked on both sides of the aisle about the
political manipulation that had occurred previously with the
Department of Justice, particularly its law enforcement and
civil rights functions, that struck a devastating blow to the
credibility of Federal law enforcement and undermined the
people's faith in our system of justice, something that if that
happens in a democracy it can be almost a fatal blow to
democracy. So you have been given the job of restoring that
trust, and I thank you for the start.
You have recommitted the Department to aggressive
investigation and prosecution of mortgage and financial fraud,
and I am confident you will implement the Fraud Enforcement and
Recovery Act, which was signed into law by the President a few
weeks ago and backed by virtually everybody on this Committee.
The Attorney General also recognized the need to include
Federal assistance to State and local law enforcement in the
Economic Recovery Act and is now working hard to get needed
resources out to our States and our cities and our towns to
keep our communities safe and to strengthen economic recovery.
It is my hope that the Justice Department will work with
this Committee, with the Judiciary Committee, on such important
issues as the state secrets privilege, shielding members of the
press from being forced to reveal their sources, passing hate
crimes legislation, and effectively cracking down on health
care fraud. In addition, our Subcommittees are hard at work on
a wide range of issues ranging from comprehensive immigration
reform to the reauthorization of the PATRIOT Act.
I have no bones of the fact that I have been troubled to
see the continuation of the Bush administration's practice of
asserting the state secrets privilege in an attempt to shut
down lawsuits. I believe that accountability is important and
that access to the courts for those alleging wrongdoing by the
Government is crucial. I support making use of the many
procedures available to the courts to protect national security
rather than completely shutting down important cases without
true judicial review. I hope, Mr. Attorney General, that you
will work with me and others on this Committee to find a
mutually acceptable solution to what I see as an unacceptable
situation.
An issue on which I believe Attorney General Holder has
shown great courage in the face of political pressure is his
commitment to the process of safely and effectively closing the
detention facility at Guantanamo Bay. I think this step will
bring to an end a disgraceful period in our country's history
but also, more importantly, will help to restore our commitment
to the rule of law and our reputation in the rest of the world.
I believe strongly that we can ensure our safety and
security. We can bring our enemies to justice. We can do it in
ways that are consistent with our laws and our values. When we
have strayed from that approach--when we have tortured people
in our custody, when we have sent people to other countries to
be tortured, or held people for years without even giving them
the chance to go to court even to argue that, ``Look, you
picked up the wrong person''--then we have hurt our national
security immeasurably.
Changing our interrogation policies to ban torture was an
essential first step. By shutting the Guantanamo facility down
and restoring tough but fair procedures, I think we can restore
our image around the world, and we have to do that if we want
to have a strong national security policy.
Recent debate has focused on keeping all Guantanamo
detainees out of the United States. I believe in that debate,
political rhetoric has drowned out reason and reality. Our
criminal justice system handles extremely dangerous criminals,
and more than a few terrorists, and it does so safely and
effectively. We are the most powerful Nation on Earth. We ought
to be able to handle the worst of criminals.
We have tried very dangerous people in our courts. We hold
very dangerous people in our jails and prisons, from the little
State of Vermont throughout the Nation. We have tried
terrorists of all stripes in our Federal court system. Think of
Oklahoma City bomber Timothy McVeigh, or Sheikh Omar Abdel-
Rahman and others who planned the 1993 World Trade Center
bombing, or Zacarias Moussaoui. Senator Graham on this
Committee, an experienced military prosecutor himself, said
recently, ``The idea that we cannot find a place to securely
house 250-plus detainees within the United States is not
rational.''
We have spent billions of dollars on high-security
facilities. We can do that.
Now, key questions remain. Prolonged detention and military
commissions, both of which are being discussed by the
administration, carry with them the risk of abuse, and I
expect, Attorney General, that you and President Obama will
face these issues with the same commitment to our Constitution,
our laws, and our values, and the same dedication to our
security that you and the President have shown so far. I trust
you will work with us to find the right solutions to these
problems.
Another area where we have to rapidly come together is the
sadly resurgent problem of hate crimes. Last week's tragic
events at the Holocaust Museum, together with other recent
incidents, have made it all too clear that violence motivated
by bias and by hatred remains a serious problem with tragic
real-world consequences. Senator Kennedy and I, together with a
strong bipartisan group of cosponsors across the political
spectrum, have once again introduced a bill that will take
substantial and important steps to strengthen our enforcement
of hate-based violence. It was crafted with due consideration
of the First Amendment so that only those who engage in brutal
acts of violence will be culpable. It has been stalled for too
long. I believe it is now time to act. I know you have
supported this. I know the President has.
You have made important steps toward ensuring a more open
and transparent Government. You have implemented a much
improved Freedom of Information Act policy. I know Senator
Cornyn and I have worked together on this for years, and I hope
the direction will continue.
I have thrown out a whole lot of things, but I think it is
an important hearing, and I was talking a little longer than I
was going to because I was waiting for Senator Sessions to come
back. He is here, and I will put my full statement in the
record. I yield to Senator Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman, and I
appreciated the opportunity to discuss with you some of the
details of the confirmation hearing for Judge Sotomayor, and
maybe we can develop a good plan for that.
Attorney General Holder, I am glad you are here today to
address the Committee as we fulfill our oversight
responsibility for the Department of Justice. The Department
plays a critical role in protecting the rule of law and
preserving national security, and it must be free from
political pressures and ideological excess.
Mr. Holder, I supported your nomination to be Attorney
General. I think I was in the minority in my party by doing so.
But I do so because I believed that your previous experience
within the Department would serve to elevate the Department and
its mission above politics and bad policy, and I was assured by
your promises during the confirmation process to that effect.
So it is difficult for me to tell you this: I am
disappointed. During your confirmation hearing, you promised to
adhere to the Constitution and put the rule of law over
political or other considerations. You said you had learned
from the past and that you would not return to pre-9/11
criminal law concepts in protecting the American people from
terrorist attacks. You told Senator Lindsey Graham that you
agreed with him that, ``Every person who commits to going to
war against America or any other peaceful nation should be held
off the battlefield as long as they are dangerous.'' And I do
not think your actions that we have seen so far are consistent
with that commitment.
Since your confirmation, you have done a number of things,
I think, that you pledged not to do. Time and again I find
myself reading about political appointees who have overruled
career Department attorneys to further some agenda or left-wing
activity. One such instance came when you rejected the Office
of Legal Counsel's conclusion that Congress' recent legislation
on District of Columbia voting was unconstitutional, as it
appears plainly to be.
During your confirmation hearing, you emphasized that your
review of OLC opinions would not be a political process. So
when OLC, the Office of Legal Counsel, which is assigned this
responsibility, had prepared an opinion for you that said that
Congress' legislation was unconstitutional, I would have
expected you to have listened to their opinions and followed
them, or to have explained precisely why you did not. Instead,
you moved around them and sought a second opinion from the
Solicitor General's office, an office that is really required
to defend whatever is passed, and asked them for their legal
advice.
You again, I think, followed pressure from the left to
override common sense when you allowed the Department of
Justice to release OLC opinions regarding interrogation, even
though high-profile members of the intelligence community
warned you that it was unwise to do so. Former Attorney General
Michael Mukasey, a former Federal judge who has tried terrorism
cases, and CIA Director Michael Hayden wrote a joint op-ed in
the Wall Street Journal stating that the release of the memos
would be ``unnecessary as a legal matter''--and I think they
are clearly correct there--and ``unsound as a matter of
policy.'' And I think that is correct. They predicted that the
effect of the memos' release ``will be to invite the kind of
institutional timidity and fear of recrimination that weakened
intelligence gathering in the past and that we came sorely to
regret on September 11, 2001.''
The lawful and wise thing to do would have been to keep our
secrets secret, yet you did not. Instead, you have now given a
critical piece of information to our enemies.
Just in the last 3 weeks, I received word again that, on
May 29th, the Washington Times had reported that the Department
of Justice voluntarily dismissed a case against three Black
Panther members for voter intimidation outside a polling place
in Pennsylvania. In that case, three Black Panthers wore
military-style uniforms, one armed with a nightstick, and used
racial slurs to scare would-be voters at the polling location.
Bartle Bull, a long-time civil rights activist, called the
conduct ``an outrageous affront to American democracy and the
rights of voters to participate in an election without fear.''
DOJ had been working on the case for months and had already
secured a default judgment on April 20, 2009. Inexplicably,
political appointees at the DOJ overruled career attorneys,
dropped the case, dismissing two of the men from the lawsuit
entirely with no penalty, and won an order against the third
man that simply prohibits him from bringing a weapon to future
elections--something that is already prohibited.
Instead of supporting the career attorneys who fought to
protect the civil rights of voters in Pennsylvania, the
political officials in the Department of Justice wiped out
their good work. This flies in the face of your statement at
your confirmation hearing about career attorneys at the
Department that you would ``listen to them, respect them, and
make them proud of the vital goals we will pursue together.''
It also, I think, contradicts your statement during your
confirmation hearing that, ``The Justice Department must also
defend the civil rights of every American.''
Another concern that this Committee raised with you during
confirmation was whether you would operate under pre-9/11
criminal law mind-sets when fighting terrorists. You assured
the Committee that you learned from the past, and that you
would do your best to aggressively continue the war on terror.
In fact, you listed as your first priority as Attorney General
that you would ``work to strengthen the activities of the
Federal Government and to protect the American people from
terrorism.'' Yet, instead of taking the lead in protecting the
American people, you have enacted some poor policies and stayed
silent on other issues of importance.
One primary example of this pre-9/11 mind-set is a recent
report that the Obama administration is requiring that enemy
combatants in Afghanistan be given Miranda warnings. Last week,
Michigan Congressman Mike Rogers revealed that the
administration had begun administering Miranda rights to enemy
combatants detained in Afghanistan. Just this March, in a ``60
Minutes'' interview, President Obama mocked the giving of
Miranda warnings to enemy combatants. He said, ``Now, do these
folks deserve Miranda warnings? Do they deserve to be treated
like a shoplifter down the block? Of course not.''
So what has changed in 3 months? The administration's new
Miranda approach to battlefield detainees will inevitably
hamper intelligence gathering in the war on terror. Even though
the new approach is something founded and intended to preserve
a Federal court criminal prosecution, it is not necessary
because we can use and should use and historically have used
the military commission for battlefield captures.
Under the Obama administration's global justice initiative
approach, even captured high-level al Qaeda operatives may be
advised that they may remain silent and seek counsel before
talking.
According to Congressman Rogers, this has already begun to
have an adverse effect. The International Red Cross has begun
advising detainees, ``Take the option. You want a lawyer.'' The
Weekly Standard reported, ``In at least one instance, a high-
level detainee has taken that advice and requested a lawyer
rather than talking.''
Likewise, the American people remain in limbo as they have
waited for your word about whether detainees at Guantanamo
would be transferred into the United States. I think we got a
letter from you either last night or this morning on that
finally. The solutions that you have suggested, I think, are
dangerous. In March, you said some detainees could be released
into the United States. A few days later, the Director of
National Intelligence expanded your statement to say, ``Some
sort of public assistance for them is necessary to start a new
life.'' The American people deserve to know what the plan is
and how you are going to protect national security.
I think you should have weighed in on dangerous legislation
such as the State Secrets Act and the media shield law that has
been opposed by your predecessors, and you have stood silent on
bills that need to be passed this year, such as the
reauthorization of the PATRIOT Act. We need your support on
that. So I think you need to take the lead in a number of these
areas.
Mr. Holder, I am disappointed and I am worried. I do not
think the American people are happy with the agendas that we
are seeing now. I think these are very serious matters. When
the Office of Legal Counsel attorneys told you something was
unconstitutional, I am not happy that you ignored that and went
around them. When security officials came to you and said, ``We
should keep our interrogation methods confidential,'' you said
no. When the civil rights of Americans were trampled on by
members of the Black Panther Party at the voting place, you let
the offenders get away. And as the American people look to you
to lead in the war against terrorism, you have remained too
silent. You even granted the release of dangerous detainees,
including Jose Padilla's alleged accomplice and another
detainee who reportedly killed an American diplomat.
There are some things that you are doing, I think, that
deserve commendation. Your Department has defended the Nation's
secrets this year at least three times in Federal courts by
invoking the state secrets privilege. That is something you
need to do and it is right. In standing up for our Nation's
secrets, you faced a lot of criticism, I know, from the left.
But I think you did the right thing.
I am encouraged that you listened to Members of Congress
and the intelligence community to oppose the release of
interrogation photos. I thought the suggested release was an
awfully unwise thing. The release of these photos was not
necessary, and it would have placed American soldiers at
greater risk.
So even though I am disappointed by your long delay in
answering my question about the Uyghurs, I am encouraged that
you understood that there is not a legal authority to release
them into the United States.
So as I said at the time of your confirmation, I respect
you. You know this Department well. I support you. I want you
to succeed. I want to do what I can to help you. But some of
these decisions you made are baffling to me. I do not think
they are good. I think they will set a precedent for the future
that is also not good.
I love the Department of Justice. I spent 15 years in it. I
have the highest ideals for it. I hope that you will begin to
evaluate some of these matters more critically, and sometimes
you are going to have to tell people in the administration no,
as you and I discussed during your confirmation.
So I look forward to your testimony today, and you will be
given a full opportunity to respond. And I want to tell you
again: I believe we can work together on some important things,
but I am troubled at this time.
Chairman Leahy. As you may have gathered, Attorney General
Holder, there are somewhat differing views by the two leaders
of this Committee. But we will let you speak for yourself.
Please go ahead. And your full statement will be made part of
the record, but go ahead.
STATEMENT OF HON. ERIC H. HOLDER, JR., ATTORNEY GENERAL, U.S.
DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Attorney General Holder. Good morning, Chairman Leahy,
Ranking Member Sessions, and Members of the Committee. Thank
you for the opportunity to appear before you today to highlight
the work and priorities of the United States Department of
Justice. I would also like to thank you for your support of the
Department. I look forward to working with the Committee and
appreciate your recognition of the Department's mission and the
important work that we do.
In the 4\1/2\ months that I have been in office, we have
begun to pursue a very specific set of goals: working to
strengthen the activities of the Federal Government that
protect the American people from terrorism within the letter
and spirit of the Constitution; working to restore the
credibility of a Department badly shaken by allegations of
improper political interference; and reinvigorating the
traditional missions of the Department in fighting crime,
protecting civil rights, preserving the environment, and
ensuring fairness in the marketplace.
Now, before answering your questions, allow me to talk
briefly about several of our current initiatives. I have also
provided more detail on each of them in my written statement.
The highest priority of the Department is to protect the
American people against acts of terrorism. Working with our
Federal, State, and local partners, as well as international
counterparts, the Department has worked tirelessly to safeguard
America and will continue to do so.
We will continue to build our capacity to deter, detect,
and disrupt terrorist plots and to identify terrorist cells
that would seek to do America harm. And we are committed to
doing so consistent with the rule of law and with American
values.
Consistent with our commitment to national security as the
Department's No. 1 priority, we are leading the work set out by
the President to close Guantanamo and to ensure that policies
going forward for detention, interrogation, and transfer of
detainees live up to our Nation's values. Congress has
expressed strong views on this subject in the supplemental
appropriations bill and elsewhere. We will continue to work
with the legislative branch to ensure that the appropriate
disposition of individuals currently detained after the
Guantanamo Naval Base occurs.
The Department has developed and begun to implement a
multi-pronged approach to confront the threat posed by the
Mexican cartels and to ensure the security of our southwest
border. Addressing the southwest border threat has two basic
elements: policing the actual border to interdict and deter the
illegal crossing of contraband goods, and confronting the large
criminal organizations operating on both sides of the border.
Our strategy involves using Federal prosecutor-led task forces
that bring together Federal, State, and local law enforcement
agencies to identify, disrupt, and dismantle the Mexican drug
cartels through investigation, prosecution, and extradition of
their key leaders and facilitators, and seizure and forfeiture
of their assets.
The Department is also fully committed to defending the
civil rights of every American, and we are rededicating
ourselves to implementing the range of Federal laws at our
disposal to protect rights in the workplace, the housing
market, and in the voting booth. I have made restoring the
proper functioning of the Civil Rights Division a top priority
for this Justice Department.
Now, as many Americans face the adverse effects of a
devastating economy and an unstable housing market, the
administration announced a new coordinated effort across
Federal and State government and the private sector to target
mortgage loan modification fraud and foreclosure rescue scams.
The new effort aligns responses from Federal law enforcement
agencies, State investigators and prosecutors, civil
enforcement authorities, and the private sector to protect
homeowners seeking assistance under the administration's Making
Homes Affordable Program from criminals looking to perpetrate
predatory schemes.
I appreciate the Committee's work in enacting the Fraud
Enforcement Recovery Act which will enhance the Department's
criminal and civil tools and resources to combat mortgage
fraud, securities and commodities fraud, money laundering, and
to protect taxpayer money that has been expended on recent
economic stimulus and rescue packages.
With the tools and the resources that the bill provides,
the Department and others will be better equipped to address
the challenges that face this Nation in difficult economic
times and to do their part to help the Nation respond to this
challenge. In addition, the Department has been investigating
and prosecuting financial crimes aggressively and has been very
successful in identifying, investigating, and prosecuting
massive financial fraud schemes, including securities and
commodities market manipulation and Ponzi schemes.
As part of the administration's ongoing commitment to
fiscal responsibility and accountability, the Department is
working with the Department of Health and Human Services to
combat the tens of billions of dollars that are lost every year
to Medicare and Medicaid fraud. Those billions represent health
care dollars that could be spent on services for Medicare and
Medicaid beneficiaries, but instead are wasted on fraud and
abuse. The Secretary of Health and Human Services, Kathleen
Sebelius, and I have launched a new effort to combat fraud that
will have increased tools and resources and a sustained focus
by senior leadership in both of our agencies.
We recognize that health care fraud has a debilitating
impact on our most vulnerable citizens--the elderly and those
in long-term care facilities. Our Elder Justice and Nursing
Home Initiative coordinates the activities of our attorneys and
agents throughout the country to better understand and address
the abuse, neglect, and financial exploitation of these victims
and to bring to bear the full weight of my Department to ensure
that these types of crimes are prevented and/or prosecuted.
Finally, the American Recovery and Reinvestment Act of 2009
included $4 billion in Department of Justice grant funding.
This funding is being used to enhance State, local, and tribal
law enforcement efforts, including the hiring of new police
officers to combat violence against women and to fight Internet
crimes against children. In addition, it will help reinvigorate
the Department's traditional law enforcement missions, a key
element of which is partnerships with local, State, and tribal
law enforcement agencies, and is vital to keeping our
communities strong.
Chairman Leahy, Ranking Member Sessions, and members of the
Committee, I want to thank you again for this opportunity to
address the Department of Justice's priorities, and I would be
pleased to answer any questions that you might have. Thank you.
[The prepared statement of Attorney General Holder appears
as a submission for the record.]
Chairman Leahy. Thank you very much.
Incidentally, there was some mention of the new Black
Panther Party. I understand that a career attorney in the
Department's Civil Rights Division made the final decision
regarding which defendants to charge and which defendants to
dismiss. That is a career employee who was there during the
Bush administration and past administrations. I just thought I
would point that out so that it does not end up--I just want to
have the facts here.
And I am also glad the Department has decided to seek an
injunction and civil penalties against the person who was
charged with intimidating, again, career decisions being made.
It would be helpful if we had the President's nominee in
the Civil Rights Division--and I would also note that we do not
have that--to make these kind of decisions because my friends
in the Republican Party have so far held up that nominee from
confirmation.
I want to make sure we have accurate views of what is
happening.
Now, last week's tragic shooting at the Holocaust Memorial
Museum here in Washington reminded us of the ongoing serious
problems of violence motivated by bias and hatred. Certainly
the reports I received both in open sources and in classified
areas show that the number of hate groups is growing, and their
positions are hardening. I think we have to strengthen the hand
of law enforcement to respond to these very vile threats and
vile crimes.
A report issued yesterday by the Leadership Conference and
Civil Rights Education Fund noted an increase in hate crimes in
recent years linked to the rise in extreme anti-immigrant
rhetoric on the Internet and throughout the country. In this
free country of ours, it is a blot to see these hate crimes. We
should do everything we can to stop them.
The Matthew Shepard Hate Crimes Prevention Act of 2009
would give Federal as well as State and local law enforcement
additional tools to prosecute hate crimes. It is long overdue.
We owe it to the memories of Officer Stephen Johns, the
murdered guard at the museum, and Matthew Shepard and so many
others.
Do you agree that this Hate Crimes Prevention Act that we
have had pending for some time is a good tool for investigators
and prosecutors?
Attorney General Holder. Absolutely, Mr. Chairman. If there
was ever a doubt about the need for this legislation, I think
that has been pretty much done away with by the events that we
have seen in our Nation here in Washington, D.C., what we saw
in Kansas, and what we saw in Arkansas as well. Also, if you
look at the statistics that indicate there has been a rise in
hate crimes over the last few years, I am particularly troubled
by the amount of hate crime violence that has been directed at
Latinos.
Ten years ago, I testified in favor of this bill, which is,
I think, limited in its scope but rational in what it is trying
to do. It expands the scope of the Federal hate crimes
legislation to include gender, disability, sexual orientation,
and does away with what I believe are unnecessary
jurisdictional requirements and would allow the Federal
Government to assist State and local counterparts in
prosecuting and investigating these offenses. I think the time
is right, the time is now for the passage of this legislation.
Chairman Leahy. Thank you. Last year, we passed the Foreign
Intelligence Surveillance Amendments Act of 2008. I had
objected to it because I felt there was a lack of adequate
protections in it. Today, the New York Times is reporting that
the National Security Agency is violating even the very
permissive standards imposed by our collection authorities. It
is collecting and reading immense numbers of e-mails to and
from United States citizens, being done without any warrants.
It calls to mind the abuses that we discovered in the FBI's use
of national security letters.
I do not know how we justify continuing these expansive
authorities, whether it is FISA or the search powers authorized
by the PATRIOT Act, when they are being--even the expanded
authorities are being abused this way.
What is the Justice Department doing looking into these
reports of abuse?
Attorney General Holder. Well, the Department works closely
with our partners in the intelligence community to ensure that
national security is conducted in a way that is consistent with
the legal authorities that are designed to protect privacy and
our civil liberties.
There is a framework, I believe, that we always try to
follow. Congress establishes statutory safeguards in a variety
of statutes, among them FISA. The Department of Justice and the
intelligence agencies follow strict regulations when we
actually do this surveillance. There are strict policies and
guidelines.
Chairman Leahy. But the article today--and the concern I
have is that more and more we find out about these kinds of
abuses not from the intelligence agencies, not from our
Government, but by picking up the newspaper. We are reaching a
point where we mark the New York Times ``Top Secret'' and we
get the information quicker, we get it in more detail, and we
get the crossword puzzle.
I mean, what are we doing to correct that? Because if this
continues, I do not know how we reauthorize any of these things
if they are going to be abused that way.
Attorney General Holder. Well, the Department and the
intelligence agencies take very seriously the requirements that
we are supposed to follow. In at least a couple of instances
where the problems were detected by those of us in the
Department, we halted the programs, informed the FISA Court,
informed members of the Intelligence Committee and members of
this Committee about what we had found, corrected the problem,
and only after all those things had occurred did I reauthorize
the beginning of the program again.
Now, I have not had a chance to review in any great detail
the article that appeared in the New York Times----
Chairman Leahy. I wish you would because also I wrote to
you about 3 months ago to ask you to provide the Department's
legislative proposals for extending or modifying PATRIOT Act
authorities. We really need that answer. It has been raised on
both sides of the aisle. If we are going to reauthorize it, we
want to know what the Department wants. And I would hope that
you would look at this article. I found it very troublesome
because I have heard similar rumblings, and it is the first
time I have seen it in any kind of detail. If the article is
accurate, then we have some real problems. And we want us to be
secure. We want us to be able to use the abilities to gather
intelligence. But we also want Americans who are not the
subject of any criminal investigation or terrorist
investigation to at least feel they can send e-mails back and
forth to their families and their friends and their businesses
without it being read by somebody who is just having fun doing
it.
We had similar things when we saw the IRS looking through
people's reports because of interest, and this goes way beyond
that. And I hope you will look into it, and I would also hope
you will redouble your efforts to work with me on a media
shield bill.
I have gone over my time. I yield to Senator Sessions. But
it is a matter--did you want to respond to any of that?
Attorney General Holder. Well, I think all I would say is
that with regard to PATRIOT Act reauthorization, I know that
some members are frustrated at the lack of a position, at least
at this point, with regard to those measures. And I think that
what we have seen in the paper today is an indication of at
least some of the things that we need to look at and consider.
And one of the reasons why I think we have not yet settled on a
firm position, we want to take into account how these measures
have been used, see if there are issues/problems with the way
in which they have been used before. We take a final position--
I know they do not expire until December, and I know the time
grows short. But to base our position on as much experiential
information as we can I think is a wise course.
Chairman Leahy. Senator Sessions.
Senator Sessions. Mr. Chairman, I just would say that with
regard to these intercepts, legally I do not think there would
be any difference between intercepting an e-mail as part of a
legitimate foreign intelligence operation and intercepting a
telephone call. And there is no exceptional preference due one
or the other, it seems to me. And we have wide authority to do
that in foreign intelligence dealing with foreign intercepts.
Senator Coburn. Mr. Ranking Member, would you mind
yielding? I read the New York Times article this morning. I do
sit on the Intelligence Committee, and I will assure you there
are inaccuracies in that report. And the assumption that it is
right is an erroneous assumption.
Senator Sessions. Well----
Chairman Leahy. As the Senator knows, I said in my question
I asked him, if the article is right.
Senator Coburn. It is not right.
Chairman Leahy. Well, I would like to hear this from the
Attorney General.
Senator Sessions. Thank you, Senator Coburn. I would offer
for the record Senator Grassley's statement, and, Mr. Holder, I
have been disappointed that you have been so late in responding
to my letter about the Uyghurs. Senator Grassley specifically
says that he has three letters that have gone unanswered by the
Department, and he has serious concerns about that. I am sure
you will want to address that.
Mr. Chairman, I would just briefly note, with regard to the
hate crimes legislation, that I would suggest we have a hearing
on that. It is a matter that is worthy of our attention, and I
would offer for the record a June 16, 2009, letter from the
United States Commission on Civil Rights. I believe six of the
eight members signed it, and they write to us and the President
and Vice President urging that we vote against the Hate Crimes
Prevention Act. They think it will do ``little good and great
harm.'' So I would offer that for the record, and hopefully we
will be able to have a hearing and not just have it pop up in
legislation on the floor.
Mr. Holder, on January 22nd, President Obama signed an
Executive order to establish procedures to close the Guantanamo
detention facility and to review the case of every detainee to
determine whether the detainee should be transferred, released,
prosecuted, or handled in some other way.
The Executive order makes clear that you as the Attorney
General are the person responsible for coordinating the review,
and I guess the other agencies of the Government, too.
Do you agree that, as the person in charge of this
Guantanamo task force, you bear responsibility for the release
or transfer of detainees from Guantanamo Bay?
Attorney General Holder. I think I bear responsibility
along with the other Cabinet members who make up the principles
committee, but I think I am primarily responsible for it, yes.
Senator Sessions. They are looking to you to coordinate, at
least, and file the consensus or set the agenda. The
administration has released or transferred some controversial
figures already without any form of military commission or
criminal time. For example, on Friday, the administration
transferred Ahmed Zuhair to Saudi Arabia. Zuhair is allegedly
responsible for the murder of William Jefferson, a U.S. citizen
and diplomat, in 1995; planting a car bomb in Mostar, Bosnia,
in 1997; and involvement with the attack on the USS Cole.
Did you approve the release of Zuhair to Saudi Arabia?
Attorney General Holder. I did, as did the former
administration. He was approved for release by the Bush
administration. The determination that we made was that there
was not sufficient proof to bring a case against him. Also, he
was transferred, not released--transferred to Saudi Arabia
where he will be subject to judicial review and, in addition to
that, to the reeducation program that they have.
Senator Sessions. Was that based on a question of evidence
that could not be utilized? I understand that military
intelligence showed that Zuhair was responsible for the
shooting death of William Jefferson when he was a diplomat to
Bosnia. Was there evidence that you felt was inadmissible to
make this case?
Attorney General Holder. No. The determination that we made
was that--and I think consistent with the Bush administration--
there was insufficient proof to tie him to those very serious
and regrettable crimes. It was not a question of the
admissibility of the evidence; it was more with regard to the
sufficiency of it.
Senator Sessions. Another detainee, Binyam Muhammad,
reportedly received instructions directly from Khalid Sheikh
Mohammed and is believed to be Jose Padilla's accomplice in the
al Qaeda plan for a second wave of attacks after 9/11. Military
commission charges against Muhammad tie him to a plot to blow
up high-rise apartment buildings and explode a dirty bomb in
the United States.
Did you approve his release?
Attorney General Holder. The releases that have occurred
have all been done with my approval, and I take responsibility.
Senator Sessions. And were you aware of the serious
allegations that he was involved with or facing?
Attorney General Holder. In the determinations that we
made, we made the conclusion that with regard to any charges or
allegations that had been lodged against people, there was
either insufficient--there was insufficient proof to bring
those cases. Anybody who poses a danger to the United States or
who has committed an act against the United States or American
interests will be held, will be tried. And the President has
been clear about that. This process is designed to protect the
American people, and that is what I have tried to do, to the
best of my ability.
Senator Sessions. Well, if he has been captured as part of
the war on terror, is the United States, or any government in
the world, really, entitled to maintain that person in custody
until the hostilities are over or until you can assure us that
the suspect is not a danger?
Attorney General Holder. Well, I think the last part of
your statement is where I would focus, to ensure that the
person no longer poses a danger to the United States or
American interests. And the determination that we made with
regard to the releases that we have so far ordered, which I
think are above 50 at this point, we have all made the
determination based on the reviews that have been done by
career people in the Justice Department and the intelligence
agencies that these people do not pose a danger to the United
States and that, in releasing them or transferring them, we can
do so with measures in place that we minimize the danger that
they could pose to this country.
Senator Sessions. Well, you are taking on an awesome
responsibility to divine these peoples intent, people who
pretty clearly had serious involvement in plans to attack and
kill Americans and attack the United States.
My time is up. I will not run over. I thank you, Mr.
Chairman.
Chairman Leahy. Thank you.
Senator Kohl.
Senator Kohl. Thank you, Mr. Chairman.
Mr. Attorney General, at your confirmation hearing you said
that Guantanamo will be closed. The administration has been
making progress in finding countries that will accept those
detainees who have been cleared for release and recently began
court proceedings for one detainee in Federal court in New
York, and this is good progress.
However, President Obama has indicated that some detainees
may have to be held for ``prolonged detention'' because some
detainees who pose significant threats cannot be tried for
their crimes.
Are we really meeting the goals behind closing Guantanamo
if we simply bring detainees to the United States for what
could be indefinite retention?
Attorney General Holder. What we are trying to do, Senator,
is make individualized determinations about what should happen
to the people who are presently held at Guantanamo. Some we
think will go into a category where they will be tried, either
in Article III courts, Federal courts, or military commissions.
Some can be transferred or released, and the possibility exists
that some will be in a third category where they will be
detained in a way that we think is consistent with due process,
both in the determination as to whether or not they should be
detained, and then with regard to periodic reviews as to how
long that detention should occur. Do they continue to pose a
danger to the United States?
It is not clear to me that they are going to be people in
that third category, but the President in his speech indicated
the possibility exists that people could be placed in that
category, but it would only happen pursuant to really, I think,
pretty robust due process procedures.
Senator Kohl. So there are some who might be retained
indefinitely without due process?
Attorney General Holder. No. With due process consistent
with the laws of war. The due process that I would focus on
would be in the initial determination. Due process would be
afforded them with regard to making the decision that they
would be placed into that detention mode and then a periodic
review that would be done.
We would want to work with members of this Committee and
with Congress to come up with the exact parameters of that due
process, but we would only want to do that in conjunction with
Congress and with the assurance that what we are doing is
consistent with our values and with our commitment to due
process.
Senator Kohl. Last week, the Washington Post reported that
the administration has ``all but abandoned plans to allow
Guantanamo detainees who have been cleared for release to live
in the United States.'' Is this true? In the last week,
multiple countries have either agreed to accept detainees or
have already accepted detainees. But what will happen if there
are others who do not have countries to go to? What will we do
with them?
Attorney General Holder. Well, we are going to work with
our allies, with our friends to try to place these people who
have been approved for transfer or for release. I think we made
pretty significant progress last week where nine people were
placed in different countries. The Italians have indicated a
willingness to accept three additional ones. We are in constant
conversation with our allies in attempting to place these
people.
So we will continue our efforts. The State Department is
working with us. Dan Fried is working with us. Dan Fried is
flying all over the world meeting with people, meeting with
various countries, trying to come up with ways in which we
place these people. So those efforts will continue.
Senator Kohl. And those for whom we cannot find a place
overseas, what will we do with them?
Attorney General Holder. Well, I would say I am not sure
that we are not going to be able to. I think that by sharing
information about who these people are, responding to the
questions that are posed by our allies who might be the
recipients of these people, that we can come up with a way in
which we can assure them that they will not pose a danger to
their countries, will not pose a danger to us. And I think that
we are going to be successful in placing these people.
Senator Kohl. At your confirmation hearing, you committed
to restoring the integrity of the Justice Department by
ensuring its independence from politics. What steps have you
taken to accomplish this goal?
Attorney General Holder. Well, I have certainly--with
regard to the Civil Rights Division, for instance, I have met
every employee of the Civil Rights Division in a series of
meetings to make sure that they understand, as the Division
that I think had the greatest amount of political harm done to
them, that is no longer what is going to be accepted; that they
are to not be timid in the enforcement of civil rights laws;
that they are to report to me any kind of political
interference that they might detect; and that they are to work
in the tradition of good Justice Department lawyers in the
Civil Rights Division have always worked under, be it under
Republican or Democratic Attorneys General. So we have tried to
get that message out.
I visited with and continue to visit with other divisions
and have tried to bring that message there as well. Telling
people that, you know, it is a new day in the Justice
Department, and especially in those places where there was the
greatest amount of political interference in the past.
Senator Kohl. Mr. Attorney General, under current law the
Department of Transportation has the power to grant antitrust
immunity to international aviation alliances. This enables
international airlines to form alliances in which they can
jointly set fares, coordinate schedules, and market the
alliance together.
Critics of such alliances argue that they can lead to
higher prices for consumers and make it difficult for smaller
airlines to compete. Critics also argue that it is not
appropriate for the Department of Transportation to grant such
antitrust immunity as its agency has little expertise in
antitrust policy and often pays little heed to competition
concerns.
What is your view? Do you think that it is appropriate for
the Department of Transportation to be able to grant antitrust
immunity to international airline alliances without input,
recommendations, and coordination with the Department of
Justice?
Attorney General Holder. Senator, that is actually a very
timely question. There is presently under consideration by the
Department of Transportation one of those alliances, and we
have reached out to the Department of Transportation. The
Deputy Attorney General has spoken to the Deputy Secretary. I
have had conversations with Secretary LaHood. And they have
said that they will work with us in making a determination
about how this particular alliance should be viewed. So the
Justice Department will have input into that determination, and
I think we will come to a joint resolution of how that issue
should be resolved.
Senator Kohl. Well, that is very good to hear. If I am
interpreting what you are saying, it is that the Department of
Transportation as well as the Department of Justice will be
working together on these matters and hopefully will arrive at
some kind of a joint agreement as to how to proceed.
Attorney General Holder. That is correct. Our Antitrust
Division will be working with attorneys from the Department of
Transportation in trying to resolve that issue.
Senator Kohl. Thank you so much.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Kohl.
I am advised by Senator Sessions that Senator Graham is
next.
Senator Graham.
Senator Graham. Thank you, Mr. Chairman.
Mr. Attorney General, one of the reasons that we would
contemplate closing Gitmo is that our commanders in the field
have suggested it would help the overall war. Are you familiar
with their statements?
Attorney General Holder. Yes, I looked at the statements
from General Petraeus, Senator McCain; I have actually looked
at a couple statements that you have made.
Senator Graham. Well, and I am just echoing what they are
saying. The people on the ground in different regions of the
world indicate to me that Gitmo has hurt our effort to bring
people over to our side, and starting over with detainee policy
would probably be a good idea. Do you share that view?
Attorney General Holder. Yes, I do. I mean, as I look at it
and have spoken with members of the military about the impact
that Guantanamo has had as a recruiting tool and as a thing
that has alienated us from people, nations that should be our
allies, I think that the closure of Guantanamo--the decision to
close Guantanamo by the President was a correct one.
Senator Graham. And I think Secretary Clinton shares the
view that it would help us abroad if we had kind of a start-
over regarding detainee policy.
Attorney General Holder. Yes, that is correct.
Senator Graham. And one thing I would just like to mention
to my colleagues on the Committee, in every war detainee policy
becomes very important. It can hurt the war effort or it can
help the war effort. The way you treat people in your capture
really does matter. The German and Japanese prisoners that were
housed here in the United States were, I think, well taken care
of, and it made it easier for us to win over the German and the
Japanese people over time. And I see a chance to start over
here, but the problem the American people have--and I think
members of the Committee on both sides of the aisle--is that we
need a plan. And let us talk about how we view the Guantanamo
population.
There are basically three buckets: those that can be
repatriated--that is one pathway forward. Is that correct?
Attorney General Holder. That is correct.
Senator Graham. Now, some of the countries that we are
talking about repatriating these detainees concern me. Bermuda
is probably OK, but I am not so sure Bermuda is going to take
many more than the Uyghurs.
The Saudi Arabian rehabilitation program, what is your view
of that program? How successful has that been?
Attorney General Holder. Well, I think it has been
successful, pretty successful. There have certainly been people
who have gone through the program who have returned to the
battlefield. I mean, we have to----
Senator Graham. Well, that is true in our own system.
Attorney General Holder. We have to be honest about that.
And so it has not been 100 percent correct or right, and yet I
think it provides a useful tool. I think if you combine that
program, for instance, with what we will be doing on our side
in making determinations as to who can be transferred, then we
can probably increase the success rate of that program. And I
would hope that we would be using that tool in at least the
transfer or release of some of the people who are presently
held at Guantanamo.
Senator Graham. I would certainly urge you to do that. And
as you try to find countries to repatriate the detainees, I
think it is important to look at the security of that country,
their willingness to make sure these people are followed and
taken good care of. So that is one bucket.
The second bucket is the people that will actually be tried
in a United States court. You know my position. I prefer the
military commission system. But of the 250 people we have at
Guantanamo Bay, what percentage do you think at the end of the
day will go through a military commission or Article III court?
Attorney General Holder. It is hard to say at this point. I
am not sure the trends have necessarily developed. We have gone
through about half of the detainees at this point. I do not
think we are going to have a very huge number.
Senator Graham. Would you say less than 25 percent, 25
percent or less?
Attorney General Holder. That might be about right.
Senator Graham. Yes, I just want the public to understand
that in terms of disposition forward, repatriation has its
limits, but a possibility. Trial is a way forward. It is the
preferred way forward. But only, I think, about 25 percent will
actually ever go to trial, and that leaves us with a third
bucket of people that we have in our custody that we are not
going to repatriate, that we are not going to go through a
criminal process. It goes back to Senator Kohl's view.
That third bucket is the most problematic, but as I
understand the administration's thinking on this, it is that we
want to make sure that we have a legal system that would allow
every detainee in that third bucket to have their day in
Federal court, that no one would be held indefinitely in this
country without a Federal judiciary review. Is that correct?
Attorney General Holder. Yes. As I said, we want to work
with members of the Committee and with Congress and determine
exactly what the parameters would be. But the thought we had
was that it would be some kind of review with regard to the
initial determination, and then a periodic review with regard
to whether or not that person should continue to be detained.
Senator Graham. I think you are on the right track. The one
thing we want to avoid is to say to the world that anyone who
is in a military prison or a civilian prison held as an enemy
combatant without their day in court, I want an independent
judiciary basically validating what the intelligence community
and the military says about this person. And if the labeling is
correct in the eyes of an independent judiciary, we would want
an annual review process or some collaborative effort that
would meet on a regular basis to ensure that the detainee has a
pathway forward.
Is that sort of what we are looking at?
Attorney General Holder. Yes, something along those lines.
Again, as I said, the exact parameters of which we want to work
with Congress.
Senator Graham. Sure.
Attorney General Holder. But I think what we want to stress
is that due process has to be a part of this component should
people end up in----
Senator Graham. I could not agree more. It has to be robust
and it has to be transparent, and no one would be held based on
an arbitrary decision by one group. It would be a collaborative
effort. So I think you are on the right track.
Now, when it comes to Bagram Air Base, I know you have been
to--have you been to Afghanistan?
Attorney General Holder. I have not. Not yet.
Senator Graham. I would encourage you to go because I think
beyond Guantanamo Bay detainees, there is a group within Bagram
Air Base that are foreign fighters, that are non-Afghan
fighters, that are probably never going to go into the Afghan
legal system for lots of reasons. Some of them have been there
3 or 4 years, quite frankly, and we need to sort of evaluate
that population and see if we can reintegrate--bring them back
to this new system, whatever it is, reintegrate them into this
new system.
I would urge you to do that, Mr. Attorney General, to get
some of your folks to look at the Bagram detainee population,
because I think some of them are going to have to be brought
back here in our system, and we are likely to capture more
during the upcoming surge of troops.
Finally, the photo issue, the detainee photo issue. I know
I have only got 30 seconds here. I appreciate your willingness
to appeal the Second Circuit decision. The President has said
publicly that he would so what is necessary to prevent these
photos from seeing the light of the day. I am working with my
colleagues here in the Senate to see if we can have a
legislative fix that would protect the photos from being
released, working with Democrats and Republicans to achieve
that goal.
But can you tell me the game plan of the administration, if
necessary, the time limits of an Executive order? If the court
rules against the administration, I think the Second Circuit
order stands. When would the Executive order, if necessary,
when should it be issued in this case?
Attorney General Holder. Well, we hope obviously that we
will be successful in the courts, and if we are not, we will
consider the options that we have. The President has made the
determination that he thinks the release of those photos would
have a negative impact on our soldiers in the battlefield, and
it was for that reason that he made the decision to withhold
the release of them. That concern continues. It was based on
his interaction with the commanders in the field. So if we were
not successful in court, we would then have to consider our
options. But the concern that the President expressed and that
I believe in would remain.
Senator Graham. Mr. Chairman, could I ask one follow-up
question? I apologize.
Chairman Leahy. Go ahead.
Senator Graham. My concern is the timeliness of the order.
The one thing, we are a Nation of laws, and an Executive order
just cannot wipe out a court decision. The courts will not
stand for that.
If the Supreme Court denies the petition for certiorari,
then the Second Circuit order to release stands. What would you
do in that case? If you lose in court or the Supreme Court
refuses to hear the case, wouldn't the order to release the
photos be imminent, go forward? And how would the Executive
order stop it then?
Attorney General Holder. Well, again, I would have to look
at the Second Circuit order, see what flexibility there is
there, what options we would have. The concern, as I said, that
the President expressed and that I agree with remains. We do
not think that the release of these photos would be a good
thing for our troops, and we would want to, consistent with the
law, work with Congress and consider our own options to ensure
that these photos are not released.
Chairman Leahy. Thank you.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
I would just like to clear up a bit of repartee between you
and Senator Coburn on the e-mail surveillance concerns that
were written up on the front page of the New York Times, and I
would like to speak as Chairman of the Intelligence Committee.
We saw the April article. The Intelligence Committee held a
hearing. We asked the questions. We were assured that it was
not correct. I have since spent time with General Alexander. I
have gone over this chapter and verse. I do not believe that
any content is reviewed in this program. We will hold another
hearing, and we will go into it again.
I am surprised by this article because they are two very
good journalists that have written it, and yet everything that
I know so far indicates that the thrust of the story, that
there are flagrant actions essentially to collect content of
this collection just simply is not true, to the best of my
knowledge.
Now, we will look more deeply into, Mr. Chairman, and I
would be very pleased to let you know what we find.
Chairman Leahy. Once you have, if you could brief Senator
Sessions and myself and cleared staff on that issue.
Senator Feinstein. We would be happy to do that.
Chairman Leahy. Thank you.
Senator Feinstein. And we are well aware of the concerns
about it. So we will continue with this.
If I may, welcome, Mr. Attorney General.
Attorney General Holder. Thank you.
Senator Feinstein. And I am one that thinks you are a
refreshing breath of fresh air in the Department, so welcome.
Attorney General Holder. Thank you.
Senator Feinstein. For almost a year, I asked the Attorney
General, naming Mukasey, to release a 2001 OLC opinion, as has
the Chairman and others on the Committee. And that opinion
concluded that the Fourth Amendment did not apply to military
operations on United States soil.
The opinion was finally made public this March. It was
released together with a memo written in 2008, which instructed
attorneys that ``caution should be exercised before relying''
on the 2001 opinion, called the opinion's conclusions incorrect
or highly questions, and rendering much of the opinion void.
What I would like to know is: Has this opinion ever been
withdrawn in its entirety?
Attorney General Holder. Senator, I would have to check on
that. I believe so, but let me just check to make sure on that
and maybe get back to you. I am not sure about--I do not have
in my memory right now what the impact of the President's
withdrawal of a variety of OLC opinions early on, whether that
was concluded in----
Senator Feinstein. Well, this is a big opinion on the
Fourth Amendment with respect to American citizens and American
military. So I think it is important that we clarify it.
Could you bring us up to date on what you are doing to
review the OLC opinions and what actions you have taken?
Attorney General Holder. Well, we released some of the OLC
opinions some weeks ago. I am not sure exactly when. The review
that led to that release continues, and as we finish that
review and make the determination that opinions can be released
in a way that is consistent with our national security and
protects also internal deliberations of the executive branch,
we will make further releases.
One of the things that would be very helpful in that regard
is to--this is an advertisement, I suppose, maybe not totally
responsive, but it would be great to have Dawn Johnsen
confirmed as the head of OLC. That is, I think, a critical part
in getting that review underway, having the person who will
ultimately head that critical part of the Department in place.
But the people there now are doing the best that they can,
and we will continue the process that led to the release of
those other opinions.
Senator Feinstein. Thank you very much.
Recently, I had a meeting in the San Diego area on the
southwest border. It was a meeting of the top officials of all
of the Departments--FBI, DEA, DA, et cetera. And I learned
something quite surprising, and I would like to say what it is
and ask you to take a good look. That is, virtually all of the
narcotics traffic in this country, the routes that drugs
travel, the people who control those drugs, the hits that are
ordered are essentially controlled by certain gangs in Federal
prisons and some State prisons today. And they even gave me the
names of the prisons.
I spoke to Bob Mueller. I have told him about this. I want
to bring it to your attention publicly. It is not acceptable
that narcotics-trafficking directions be given out of Federal
or State prisons, and I would like to ask you to make a
thorough investigation. I would be happy to give you the
information that I have that I am not going to discuss here,
but what I am asking you for is a commitment to take a big,
strong, in-depth look at this.
Attorney General Holder. Sure, I will certainly do that.
There are certainly measures in place--the monitoring of
telephone calls, the monitoring of people who visit with people
who are detained certainly in the Federal system for which I am
responsible. But I will certainly look at the information that
you have expressed concern about and see if there are things
that we need to do better on the Federal side and also interact
with our State partners to see if there are ways in which we
can help them in that regard.
Senator Feinstein. Thank you very much, and I am happy to
fill you in.
I wanted to just pick up on what Senator Kohl and Senator
Graham said about this one group of detainees. As you said, the
laws of war provide for the detention of a combatant for the
length of the conflict. Once a military commission declares
somebody an enemy combatant and the decision is made that they
remain a national security risk, there is a necessity, as we
have all discussed, to provide a due process review of that
individual periodically.
Has that due process review been decided upon? If so, who
would conduct it? And how often would those reviews take place?
Attorney General Holder. No, we have not decided that, both
with regard to where that review would occur and how frequently
it should occur. We are discussing that internally. It is
something, though, that I think we would want to work with the
members of this Committee and Congress more generally in coming
up with how that should occur, who should be responsible for
both the initial determination and the review, and then how
frequently it should occur. We are going to have ideas, but we
want to interact with, as I said, members of the Committee to
get your ideas as well so that the process that ultimately is
put in place is one that will have the support of Congress.
Senator Feinstein. Well, please do. Senator Graham and I
have discussed this. Others have. We are very interested and I
think have a point of view that we would like the opportunity
to express to you. Thank you.
Let us go back to the southwest border for a minute. More
than 10,000 people, as we all know, have been killed in Mexico
by drug violence since December of 2006. And Mexico's Attorney
General, Mr. Mora, estimates that $10 billion worth of drug
proceeds crosses the United States into Mexico each year in the
form of bulk cash.
We held a hearing; we talked to the Attorney General of the
State of Arizona, who more or less confirmed a lot of this.
So my question is: How much of that cash has been
intercepted at the border in 2009? And what role today does the
BATF and the DEA play in stemming this flow?
Attorney General Holder. I would have to get you some
numbers on how much we have intercepted in 2009, but we have
certainly stepped up our efforts in conjunction with our
partners at DHS. Secretary Napolitano and I went to Mexico, I
guess in the early part of the year, to talk with our Mexican
counterparts about the inflow of bulk cash and weapons into
Mexico, and we are trying to come up with ways in which we
interdict and stop that amount.
DEA has moved significant resources, about 20 agents,
toward the southwest border. ATF has moved about 100 to the
southwest border. The FBI has put together a new intelligence
capability along the southwest border--all designed to stop the
flow of that material into Mexico, but also to stop the flow of
drugs from Mexico into our country. This is a priority for us.
Senator Feinstein. Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
Senator Coburn.
Senator Coburn. Thank you, Mr. Chairman.
Mr. Attorney General, welcome. Thank you for your service.
At your confirmation hearing, we talked about the Emmett Till
unresolved civil rights crimes, and you had made a commitment
to me at that time that you would do whatever you could in your
power, if Congress failed to act, to make sure that that was
funded.
Number 1, my first question is: Have you been successful?
And, Number 2, the group that actually motivated the response
for that bill--and Senator Dodd and myself had an amendment to
try to fund that that was rejected by our colleagues on the
omnibus bill--would like to have a meeting with the Justice
Department and have been turned away. And I just think in the
nature of your commitment to me, can you answer what have you
done to get the funding for the Emmett Till bill? And, Number
2, would you agree to meet with the principals of that
organization so that we can get these crimes resolved?
Attorney General Holder. I would have to look and see,
Senator, quite frankly, where we stand with regard to the
budget for next year. I just do not offhand remember how much
money, if any money at all, was dedicated to the project that
you talk about. But I will check that and get back to you.
But I would be glad to meet with the people you are talking
about, the organization that you are speaking with, and I
will----
Senator Coburn. I will communicate that today. That is Mr.
Alvin Sykes. He is the president of that organization.
Attorney General Holder. That is fine.
Senator Coburn. You know, it really is interesting. We pass
a bill and we pound our chests around here, and then we do not
give the money to do it on a very real issue that time is a
major factor. Because if we do not fund this in an appropriate
time, we are not going to solve those, and we are not going to
bring to justice those people who should be brought to justice.
Attorney General Holder. As I said at my confirmation
hearing and I will reiterate today, I am going to share the
concern that you expressed, and I will do what I can to give
life to the mechanism that is in place. But I want to give
you----
Senator Coburn. I will be happy to help you shuffle that
money around. I put out a report last year on $10 billion worth
of waste at the Justice Department, so I will be happy to offer
a critique, if I might, on where you might find that money.
I am a little concerned about what happened in Arkansas and
also what happened in Kansas and the differential in response.
Do you view the murder of one of our soldiers in Arkansas as a
hate crime?
Attorney General Holder. I do not know all the facts there,
but it is potentially a hate crime. The response that we use
with regard to what happened to the killing of Dr. Tiller was
one where the Justice Department has historically used its
resources to protect doctors who engage in reproductive
activities.
With regard to the killing of the recruitment officer, that
is one the Department of Defense has primary responsibility
for, though we have offered our assistance in that regard.
Senator Coburn. The prosecution of that would be outside of
the Department of Justice?
Attorney General Holder. Oh, no, no. I thought you were
talking about the protection efforts.
Senator Coburn. No, no. I am not talking about the--I am
talking about the prosecution of that.
Attorney General Holder. That would be the responsibility
of the Justice Department in conjunction with our local
partners. As happened in Kansas, a component of that is being
done by the local prosecutor; some will be done by us.
Senator Coburn. I understand. Do current hate crimes laws
cover that act in Arkansas?
Attorney General Holder. If there were a determination made
that the killing was based on the race of the victim, yes, I
think it is at least arguable that that is. But if the
motivation was because of his military status, I do not think
that would be cognizable under the hate crimes statute that
President----
Senator Coburn. Regardless of what his stated motivations
might have been?
Attorney General Holder. Well, I mean, that would be one of
the things we would have to consider, what is the motivation of
the person.
Senator Coburn. Should we consider legislative proposals to
protect U.S. soldiers at recruiting offices?
Attorney General Holder. Well, I guess we would have to
look at the extent of the problem. That is not to minimize the
seriousness of what happened there. I mean, what happened there
was deplorable and not something that should in any way be
tolerated. But I think we would want to look at what is the
nature and extent of the hate crime that we are trying to
legislate. The categories that we have now, I think we can
certainly show that there are substantial numbers of crimes
that happen, and also with regard to the categories that the
administration thinks we ought to expand it to.
With regard to military personnel, I would want to look and
see what the statistics shows and what the facts shows.
Senator Coburn. OK. Thank you. Well, we will get into that
again.
One of the other things that you and I discussed during
your hearing--and you and I have a different position on this,
and I respect your position. But a commitment you made was to
rigorously review Heller prior to making any commitments or
recommendations on additional laws restricting the Second
Amendment. Have you, in fact, done that? And did you, in fact,
do that before you issued your recommendation on so-called
assault weapons?
Attorney General Holder. I was going to say, I am not sure
that I have done anything with regard to weapons. I am
obviously cognizant of the Heller determination, Heller
decision, but I do not think the Department has issued any
rules or regulations with regards to weapons. At least that----
Senator Coburn. Well, in terms of a recommendation, though,
basically you are on record of wanting us to re-propose an
assault weapons ban, and the comment that you made during your
confirmation hearing was, in fact, that you would do a rigorous
review of Heller before any recommendations were made. And my
question simply is: Did you do that? And what were the results
of that rigorous examination of Heller that caused you to
propose a new assault weapons ban?
Attorney General Holder. Well, I do not think that I have,
in fact, said that we need a new assault weapons ban. What I
have said is that we need to look at the situation that we
have, look at the violence that we have that is gun related,
and come up with measures that will effectively deal with that
issue.
Senator Coburn. Actually, on February 25th at a news
conference, you said you endorsed reinstating the ban on
assault weapons. February 25th. And my question is--the
commitment you made to this Committee was that you would do a
rigorous analysis of Heller before you made any
recommendations, and all I am wanting to know is: Did you do
that, or was this just impromptu at this press conference?
Attorney General Holder. Well, there is a firearms review
that is ongoing and obviously will take into account the Heller
decision. But the administration has not taken a position with
regard to reinstituting the assault weapons ban.
Senator Coburn. All right. I thank you very much for your
answer to my question.
I do have a few additional questions I would like to submit
to the record, Mr. Chairman.
Chairman Leahy. Of course.
Senator Coburn. Thank you again.
Chairman Leahy. All Senators have that right, and we will
keep the record open throughout this week.
Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman.
I understand, Mr. Attorney General, you had exchanges with
Senators Graham and Feinstein and Kohl about the issue of
prolonged detention. I chaired a hearing on this topic last
week and would simply urge you and the Department to consider
the various legal and policy concerns that are involved. Any
system of indefinite detention raises those kinds of issues. I
would say even with the kind of due process protections that
you discussed, I do think this could be a very big mistake,
especially because of how such a system could be perceived
around the world, frankly, after some of the progress that the
administration is making through the President's good work on
our relationships around the world.
On another topic, I wrote to the President Monday about my
continued concern that the administration has not formally
withdrawn certain legal opinions, including the January 2006
white paper that provided legal justifications for the Bush
administration's warrantless wiretapping program. The letter
was prompted in part by a recent speech by the Director of
National Intelligence in which he asserted that the program was
not illegal.
In a speech to the American Constitutional Society in June
2008, you said the following: ``I never thought that I would
see the day when a President would act in direct defiance of
Federal law by authorizing warrantless NSA surveillance of
American citizens.'' The President himself also said several
times as Senator and during the campaign that the program was
illegal.
Now that you are the Attorney General, is there any doubt
in your mind that the warrantless wiretapping program was
illegal?
Attorney General Holder. Well, I think that the warrantless
wiretapping program as it existed at that point was certainly
unwise in that it was put together without the approval of
Congress and as a result did not have all the protections, all
the strength that it might have had behind it, as I think it
now exists with regard to having had congressional approval of
it.
So I think that the concerns that I expressed in that
speech no longer exist because of the action that Congress has
taken in----
Senator Feingold. But I asked you, Mr. Attorney General,
not whether it was unwise but whether you consider it to have
been illegal, because that is certainly the implication of the
quote I read and the explicit statement of the man who is now
President of the United States.
Attorney General Holder. Yes, well, what I was saying in
that speech was that I thought the action that the
administration had taken was inconsistent with the dictates of
FISA. I think I used the word ``contravention.'' And as a
result, I thought that the policy was an unwise one, and I
think that the concerns that I expressed then have really been
remedied by the fact that Congress has now authorized the
program.
Senator Feingold. But did you think it was illegal?
Attorney General Holder. Well, I thought that, as I said,
it was inconsistent with the FISA statute and unwise as a
matter of policy.
Senator Feingold. Has something happened that has changed
your opinion since your June 2008 statement that would make it
hard for you to just simply say what the President said, that
it is illegal?
Attorney General Holder. No, I do not think so, and I do
not think what I am saying now is necessarily inconsistent with
what I said at the ACS convention speech that I gave.
Senator Feingold. Well, it sounds awfully mild compared to
some very clear statements and a very important principle here,
which is not only that this has to do with the scope of the
FISA law, but the underlying constitutional issue that people
like me and many other people believe, that if the statute is
that explicit under the third test, under Justice Jackson's
test, that it is, in fact, unconstitutional for the President
and illegal, of course, for the President to override the
express will of the Congress.
Attorney General Holder. Well, as I said, I think I said
``contravention of,'' ``inconsistent with.'' I am not sure I
have used the term ``illegal.'' And I would adhere to what I
said then, and I think what I am saying now is consistent with
what I said in the speech.
Senator Feingold. Well, that may well be, but I would hope
you would use the word ``illegal'' now, and I requested in the
letter I sent to the President on Monday and also in a letter
dated April 29th that the administration withdraw the January
2006 white paper and other classified OLC memos providing legal
justification for the program. I know you have initiated a
review of the Bush era OLC memos, and, of course, certain memos
that authorized torture have been withdrawn. Apparently, you
discussed this a bit already with Senator Feinstein.
What is the status of your review of the memos concerning
the warrantless wiretapping program?
Attorney General Holder. Well, I asked the Office of Legal
Counsel to review these prior opinions, including those that
deal with surveillance with a goal of making as many of these
opinions public as we can consistent with our national security
interests and also consistent with ensuring that robust debate
can happen within the executive branch.
It is my hope that that process, which is ongoing, will
lead to the release of several opinions in a relatively short
period of time.
Senator Feingold. I just want to reiterate how important it
is for the legal justification for this program to be
withdrawn. I am concerned these memos that make unsupportable
claims of executive power will come back to haunt us if they
remain in effect. And if you believe, as I think the President
has indicated in the past, that the program was illegal, they
cannot stand.
In his national security speech on May 21st at the National
Archives, the President indicated that he is concerned about
the overuse of the state secrets privilege. He stated that the
administration is undertaking a thorough review of the practice
and then said that, ``Each year we will voluntarily report to
Congress when we have invoked the privilege and why, because as
I said before, there must be proper oversight of our actions.''
Since February, I have been seeking a classified briefing
from the Department about its position in the three cases in
which it has continued to assert the state secrets privilege.
These are controversial cases, and I want to understand why the
administration is asserting the privilege. I am a member of the
Intelligence Committee and the Judiciary Committee, and as you
know, state secrets legislation is before the Committee.
I think my request is consistent with the President's
desire to brief Congress and cooperate with oversight. Will you
make sure that I can receive this briefing?
Attorney General Holder. I will try to get the information
to you, Senator. What we are trying to do is look at the state
secrets issue in such a way that--we are looking in two ways:
one to see whether or not the doctrine was properly invoked
with regard to the 20 or so cases in which it has been used,
and then what can we do going forward.
We have some proposals that we have been working on that I
think we are going to make public in a matter of days that we
would put forth for consideration by this Committee and by
Congress generally about the way in which we think we should
handle the state secret issue.
Senator Feingold. Is there any reason why I cannot get this
briefing at this time?
Attorney General Holder. No, as I said, we will try to get
the information to you and make you aware of the things that
you sought.
Senator Feingold. I thank you, Mr. Attorney General.
Chairman Leahy. Thank you.
Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman.
Welcome, General. We are happy to have you here. We know
you have a difficult job, and we always want to be helpful to
you if we can.
There is something that really bothers me over this last
weekend. After a 2-year investigation, the FBI, in cooperation
with the Department of Interior, arrested 19 Utahans
trafficking in Indian artifacts from Federal lands. Now, I am
extremely concerned by the manner in which these warrants were
executed. They came in in full combat gear, SWAT team gear,
like they were going after, you know, the worst drug dealers in
the world, and in the process--now, I do not believe anybody
should be taking Indian artifacts, to establish that right off.
But in the process, one of the leading figures in the whole
county down there who is a leading doctor, had delivered almost
everybody who lived in the county as a doctor, committed
suicide. He was by all intents and purposes an upstanding
member of the community, a decent, honorable man, critical to
the community from a health and welfare standpoint. And the way
they came in there--I mean, you know, I have no problem with
going after people who violate the law. But they came in there
like they were the worst common criminals on Earth, and in the
process this man--it became overwhelming to him, I suppose--a
really strong individual, a good person, goes out and commits
suicide. Now, you know, this bothered me.
Now, media reports state that over 100 Federal agents were
used in this operation, and that extreme show of force and
presence has been perceived by the community out there and the
civic leaders in San Juan County as not only unnecessary but
brutal.
Now, I am questioning the motivation of some of the higher-
ups at Justice and of the Interior. The day after these raids
were conducted, Secretary Salazar and Deputy Attorney General
David Ogden appeared before the media touting how successful
this investigation was.
Now, I have been in the Senate for--now in my 33rd year,
and I felt like it was a dog-and-pony show to me. I know one
when I see it, and this has all the classic signs of one.
The offenses for which these warrants were issued were
nonviolent offenses. One has to think that the manpower and
resources allocated to this operation were usually reserved
for, like I say, arresting truly violent felons.
Now, let me contrast this case and compare it to another
Federal sweep that also occurred last week. In North Texas,
after a 2-year investigation, the FBI arrested 17 people
involved in a large drug-trafficking organization that extended
from Texas to Massachusetts. The FBI seized cash, weapons, real
estate, and vehicles. FBI officials say that this ring
allegedly distributed $22 million in cocaine. Ironically, there
was not a major press event regarding the drug sweep in which
the Deputy Attorney General Ogden addressed the media.
And I guess what I am saying, I know you well. We have been
friends all these years. I have great respect for you. We may
differ on some things, but that is normal, as far as I am
concerned.
But for all these reasons, can you just explain to me what,
if any, factors were used to measure the appropriate level of
force and personnel for the Utah operation? Here is the article
on the 17 arrests for these violent drug situations. That is
about it. But give me some reason for all this. Our people out
there are up in arms, and I think properly so.
Attorney General Holder. Well, first let me express my
sympathy for the family of the doctor who took his own life.
Obviously, that is a very sad thing, and if it was related to
this operation, it is something that saddens me. It is not
something certainly that we intended to have happen.
Senator Hatch. It has completely destroyed good feelings
toward the Government in that whole community.
Attorney General Holder. The arrests that were done were
felony arrests, and as best as I can tell, they were done in
accordance with the FBI and Bureau of Land Management standard
operating procedures.
When arrests are made in even cases that seem to be
nonviolent, there is always a danger for the law enforcement
officer who is effecting that arrest, and it is a difficult
thing to ask them to assume certain things as they are----
Senator Hatch. I am with you on that, but in this case,
this is a doctor who everybody respected, everybody loved in
the community. I am just centering on his case since he was so
overwrought by it he took his life. And that community--you
know how hard it is to get upstanding doctors to move into some
of these rural communities and do what this man was doing.
Now, again, I do not justify stealing or taking Indian
artifacts, if that is what happened here, but I would, I
guess--nor do I want to put you through a lot of pain here. I
hope you will do something about that type of activity in the
future. You can bring all the force you want against drug
dealers and people who clearly are violent felons where our
people might be in danger. But in this case, there was not the
slightest possibility anybody could have been in danger down in
that county.
Attorney General Holder. Well, we want to use the
appropriate amount of force that is necessary, but we also want
to keep in mind the protection--the responsibility I have to
make sure that the lives of law enforcement officers engaged in
these operations are not put at risk.
Senator Hatch. I am with you, but, again, I would say in
that instance, that should not happen.
Let me just change the subject for a minute because I am
concerned about the state secrets privilege. General Holder,
the Department of Justice has been conducting a review of
pending cases in which the state secrets privilege has been
invoked by the Bush administration. In the first 100 days of
the Obama administration, the Department of Justice elected to
defend this privilege three times. I have no problem with that
at all. I think it has been correct.
The administration has picked up where the Bush
administration left off in three pending cases: Al-Haramain
Islamic Foundation v. Obama, Mohamed v. Jeppesen Dataplan, and
Jewel v. NSA.
Now, during an April television interview, you stated that,
in your opinion, the Bush administration correctly applied the
state secrets privilege in these cases. Now, tomorrow, the
Senate Judiciary Committee will begin marking up a bill
entitled ``The State Secrets Protection Act.'' Last year, after
hearings were held on this matter in the 110th Congress,
Attorney General Mukasey sent a letter to the Senate Judiciary
Committee expressing the Justice Department's views on the
State Secrets Protection Act. The Department of Justice had
several concerns regarding this legislation. Chief among them
was the constitutional questions raised by the proposed
legislation. This bill seriously limits the ability of the
executive branch to protect national security information under
the well-established standards articulated by the Supreme Court
in U.S. v. Reynolds.
My time is up, but let me just finish this question, if you
would, Mr. Chairman. I would be grateful for that courtesy, but
I also do not want to get on the wrong side of the Chairman.
Chairman Leahy. You never have.
Senator Hatch. I never have, that is for sure. Any attempt
to reallocate national security decisionmaking from the
executive to the judicial branch usurps the executive branch's
power to make such determinations.
Now, that was the Department's view last year after
hearings were held on the state secrets privilege. The same
bill has been introduced again, and there were no changes in
the language and no attempt on the part of the bill's authors
to address the Justice Department's concern.
Now, this bill has been on the Committee's calendar since
late April, and we have yet to hear the Justice Department's
view on this legislation. So while I have you here, would you
be kind enough to give the Justice Department's view on the
State Secrets Protection Act of 2009?
Attorney General Holder. Well, we want to work with this
Committee and with Congress in dealing with this whole issue of
state secrets and the doctrine of state secrets privilege. We
have and are about to release, I think, what our views are as
to how this problem can be handled, to the extent that it is
one. I think it is our view that the proposals that we are
going to make will deal with many of the concerns that I think
generated the feeling in some people that there was a need for
legislation.
So I would hope that we would have a chance to have members
of this Committee and Congress to look at the proposal that we
are going to make and see if that will be sufficient, and then
work with the members of the Committee on any legislation that
might be contemplated.
I actually think, though, that the proposals that we are
going to make I think will be sufficient.
Senator Hatch. When are you going to release those to us,
do you know?
Attorney General Holder. It would be my hope that we can do
this within a matter of days. This is not something that I
think is going to----
Chairman Leahy. I might note for the Senator from Utah, as
the Attorney General knows, I have been pushing for that kind
of a response because, otherwise, we will mark up the bill. I
would like to have, as I would with any Department of either
party, I would like to have the Department's views. But if we
don't have them, we will go ahead and mark up the legislation.
Senator Hatch. That is incentive enough right there, it
seems to me.
Attorney General Holder. You will have our views.
Senator Hatch. Thank you, Mr. Chairman.
Chairman Leahy. Senator Durbin.
Senator Durbin. Mr. Attorney General, thank you for being
here.
First, I would like to ask a question related to an issue
in Chicago. I recently met with Ron Huberman, who is the head
of the Chicago Public School System, and he told me an
absolutely stunning statistic. In this last school year
recently completed, over 500 school children in Chicago were
shot, at least 36 of them fatally. I think you will share my
view that this is unacceptable in Chicago or any place in
America.
I think under the Second Amendment people have the right to
own a gun responsibly and legally, but children also have the
right to be able to walk to school without being caught in the
cross-fire of a gang war.
I would like to ask for your help, along with the help of
Secretary of Education Arne Duncan and other members of the
administration, to work with Mayor Daley and State and local
officials to deal with this serious problem in President
Obama's hometown.
Attorney General Holder. Yes, the problem that you have
detailed is simply unacceptable. I met with Mayor Daley last
week here in Washington, and we discussed that problem and some
other crime issues in Chicago. And what I told him then and
what I will tell you now is that we are committed to working
with him as partners in trying to come up with ways in which we
can deal with that issue.
You know, one is too great a number, but the numbers that
are coming out of Chicago are simply unacceptable, and we have
to take really strong measures to try to come up with ways in
which we deal with it.
Senator Durbin. There are many aspects of it. Gang activity
is clearly one of them; the proliferation of the sale of guns
to these drug gangs by irresponsible gun dealers. There is a
Federal aspect of this, and I appreciate your being willing to
help us and cooperate in dealing with that.
There were two investigations you inherited from the Bush
administration related to activity that preceded your arrival.
One was a Bush administration investigation of the destruction
of CIA interrogation videotapes, and the second involved an
investigation of Jay Bybee, John Yoo, and Steven Bradbury, the
Justice Department attorneys who authorized the use of abusive
interrogation techniques like waterboarding.
Senator Whitehouse and I asked then-Attorney General
Mukasey to give us a copy of the investigation and report of
the Office of Professional Responsibility about the activities
of these three persons. He did not do that. Although I
understand that the OPR completed its investigation, he
determined that he would do something which I thought was
extraordinary. He submitted the report before he gave it to the
public or Congress to those who had been investigated to review
and comment on the investigation. I understand that they have
submitted their replies to that some 6 weeks ago.
So the obvious question is: When can we expect to receive a
copy of this report?
Attorney General Holder. I sat down just yesterday,
actually, and talked to Mary Pat Brown, who is the head of the
Office of Professional Responsibility, and this is one of the
things that we discussed. They are pretty close to getting to
the end of their process. It was lengthened by the responses
that they received from the people who are the subject of the
investigation. Ms. Brown indicates that what they wanted to do
was to look at those responses, and there are some changes they
are making to the report in light of the contentions that were
contained in the responses that they examined.
So I think that we are pretty close to the end of that, and
my hope is to share as much of that report as I can with
Members of Congress and with the public. There are some
potentially classified portions of that report that I think we
want to work to declassify because it has been expressed by the
head of OPR--and I agree with her--that you cannot get the full
context for this report unless the entirety of the report or
close to the entirety of the report is declassified.
Senator Durbin. Can you give me a timeframe when we can
expect to receive the declassified or unclassified portions of
this report?
Attorney General Holder. I think we are talking about a
matter of weeks. I think they are pretty close to the end, and
then I think we have to try to work through the
declassification process. But we would be in a position to
release the classified portion--though I really worry about
that because as people look at the work that the OPR has done,
I would like them to have the full range of information that
OPR had and considered, and that is why I think the
declassification process is so important. I would not want to
put in the public record an incomplete report, so we have to
work our way through that as well.
Senator Durbin. Mr. Attorney General, you made a point,
which we have discussed before, about the question of race and
justice in America. It was one of your earliest statements. You
are aware, as all of us are, that African Americans are
incarcerated nearly 6 times the rate of whites in our country.
One of the major reasons for that is the so-called crack/powder
disparity when it comes to cocaine. I use this simply as an
illustration that, under our current laws, someone who is
guilty of selling this amount of cocaine is subject to the same
incarceration as someone who sells this amount of crack
cocaine.
This disparity, sadly, I voted for. Many of us did, 20
years ago. We did not know how terrible crack would be, but we
were told it would completely change narcotics in America. It
was so cheap, so plentiful, and so devastating that we had to
do something extraordinary. The net result was this 100:1
disparity in terms of sentencing.
There are men and women presently incarcerated in the
United States for 10 and 20 years because of this 100:1
disparity between two forms of cocaine.
We held a hearing in the Crime Subcommittee of Judiciary,
and we had expert testimony, not just from those who said there
is no scientific basis for this disparity, but also from law
enforcement officials, including a gentleman who came to us
from Miami, Florida, and said that--John Timony, the Miami
police chief, who said police departments face a much more
difficult challenge gaining trust of their communities because
of the glaring inequities in the justice system that are
allowed to persist.
I know you have come out for ending this disparity, but I
would like to ask you if we need to move with dispatch on this
issue to restore justice and to restore confidence in our
justice system among people in America who are presently the
victims of this disparity.
Attorney General Holder. Senator, I do think we need to
move with dispatch. This is one of the first initiatives that
we had people testify about. The Assistant Attorney General for
the Criminal Division, Lanny Breuer, testified against the
disparity, and I think you are exactly right that the disparity
as originally intended--originally proposed and enacted I think
was well intentioned. I do not think anybody had any negative
motives. But as we have seen how it has played out--and I think
in the graphic demonstration that you have made--and also when
one looks at the racial implications of the crack/powder
disparity, it has bred disrespect for our criminal justice
system. It has made the job of those of us in law enforcement
more difficult. And I think it is time for us to make the
determination that is consistent with what the science tells
us, consistent with what law enforcement officials on the State
and local levels have told us, certainly something that I
observed as a judge here in Washington, D.C., that it is time
to do away with that disparity. That will have, I think, an
immediate impact on how people--not only people of color, but
people generally look at our criminal justice system, and it
will be a very positive thing for those of us in law
enforcement.
Senator Durbin. Thank you, Mr. Attorney General.
Thank you, Mr. Chairman.
Chairman Leahy. Just so we know where we are, Senator
Cornyn will be next, Senator Cardin, Senator Kyl, and I know a
lot of the Senators have been going back and forth. In a
discussion with Senator Kyl, he is working on health care,
which a number of us are.
On the thing that Senator Durbin raised, on the crack
cocaine/powder cocaine, I would like to see us move legislation
this year to remove that disparity, make it more realistic. I
understand some of the negotiating room it gives prosecutors,
but I also have this image of people, wealthy people, well-
established in society, using their powder cocaine with virtual
immunity, and a lot of young people from a far less affluent
area, often minorities, getting hit on crack cocaine. And I
think as a disparity it is destructive to our whole penal
system and our justice system and to our respect for the rule
of law.
I will work with Senators on both sides of the aisle who
have expressed for some time the problem with this disparity. I
do not want what appears to many people to be one rule for
white America and a different rule for black America.
Senator Sessions. Mr. Chairman, could I just say----
Chairman Leahy. Sure, of course.
Senator Sessions. I share those concerns. Senator Hatch and
I have, I guess for 9 years, had legislation to make a
substantial improvement in that. Senator Cornyn and Senator
Pryor and former Senator, now Secretary, Salazar have all
pushed a bipartisan bill, and four former Attorneys General
have also supported substantial improvements in the way that is
done. I think it is not healthy now. We need to fix it.
I would just note one reason we are having a hard time, Mr.
Chairman, on our side is the Finance Committee. Those masters
of the universe are setting our health care policy. Senator
Grassley let me know that he is, of course, ranking on that
Committee. Senator Hatch, Senator Cornyn, and Senator Kyl are
also members of that important Committee. So I am glad they can
at least be here for a while.
Chairman Leahy. Thank you. I am glad, too, and, of course,
I will keep the record open for the rest of the week for
additional questions to be submitted.
Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman. Welcome, Attorney
General Holder. And I just want to note for the record, Mr.
Chairman, there is no more important Committee in the Senate
than the Judiciary Committee.
[Laughter.]
Chairman Leahy. I liked you, anyway. You did not have to
say that. No, but I do think the Finance Committee and the HELP
Committee are taking a lot of our members, and I understand
why.
Senator Cornyn. Mr. Attorney General, I just have two areas
I want to ask you questions about. In November 2008, the
Department of Transportation declared the record complete in
the Continental Airlines, which is headquartered in Houston,
Texas, their application to join Star Alliance, an antitrust-
immunized alliance of international airlines. According to the
U.S. Code, this means that the Secretary of Transportation was
obligated to make a final decision by May 31, 2009. In late
April 2009, the Secretary issued a preliminary decision
tentatively approving that membership in Star Alliance, but
then the May 31 deadline came and went.
I wanted to ask you about this because some have indicated
that the Transportation Secretary's failure to meet the
statutory deadline was due in part to requests from the
Department of Justice, specifically the Antitrust Division,
encouraging the Secretary to delay the decision until the DOJ
Antitrust Division could have some input.
I am concerned about the deadline having come and gone and
sort of the open-ended nature of this and wonder if you can
shed any light on why that deadline was not met and what you
anticipate the timetable might be. I think Senator Kohl asked
some questions about this.
Attorney General Holder. Yes, Senator Kohl asked the
question earlier. We did ask the Transportation Department to
allow our Antitrust Division to have input into the decision
that he will ultimately reach, and the Secretary agreed to
allow us to participate in that. I do not think that this will
extend the time. It is regrettable that the deadline has
passed, but I do not think this will extend it a matter of
months or even beyond a few weeks. And I expect that the
determination will be made by the Secretary of Transportation
after having consulted with the lawyers in our Antitrust
Division.
Senator Cornyn. I can certainly understand the desire to
have input, and I appreciate that. However, I know there are
others who would appreciate a decision as soon as practicable,
so I would appreciate that.
I want to ask you a little bit about the D.C. voting rights
issue, and as you know, I wrote a letter to you expressing my
concerns about a Washington Post story that said you had
solicited a second opinion from the Solicitor General's office
after the Office of Legal Counsel originally concluded that the
D.C. Voting Rights Act was unconstitutional. I requested that
you produce the OLC memorandum questioning the bill's
constitutionality, and in response, as you will recall, you
said that you declined to make that memorandum public, saying
that it was not final. And so I wanted to ask you about that.
What is there that remains to be done before that opinion
will be final?
Attorney General Holder. Well, I guess no decision has
actually been made by the administration yet with regard to the
position it is going to take concerning the constitutionality
of the statute. So that process is still ongoing, and as long
as that is ongoing--and also the concern I think I expressed
was it reflected--I was concerned about releasing documents
that reflected internal deliberations in the Justice
Department.
So those were the two concerns that I--if I did not express
both, those were certainly the two concerns I have now with
regard to the release of the documents.
Senator Cornyn. Given the fact that the memorandum was
signed by the acting head of the Office of Legal Counsel, in
what sense was the memorandum not final? Is it because the--you
say the administration will now make a decision whether or not
it disagrees with the Office of Legal Counsel or not?
Attorney General Holder. Yes, the determination has not
been made by the President, by the administration, as to what
the position is going to be of the administration. And so while
that matter is ongoing, that was one of the two concerns I
expressed about releasing the materials that you requested.
Senator Cornyn. Well, would you foresee a situation where
the Office of Legal Counsel would render a legal opinion that a
statute was unconstitutional where the President would take a
contrary position?
Attorney General Holder. You have to look at, you know, the
specific fact situation. OLC has some of the best and the
brightest in the Justice Department, but even the best and the
brightest can get it wrong. We look at what they say. I review
what it is that they say. Great deference is given to what OLC
says. It is extremely rare for an Attorney General to take a
contrary position. And I understand that is why this has at
least gotten some--generated some interest.
But it is possible--I mean, the OLC has delegated power
from the Attorney General. I think ultimately it is my
responsibility to make sure that the opinion that comes out of
the Justice Department, even an OLC opinion, is one that I am
fully comfortable with.
Senator Cornyn. I understand the difference between lawyers
having different opinions. That happens all the time. But what
you are suggesting is that the President of the United States
would make a policy decision on a question of law and
essentially overrule the decision of the Office of Legal
Counsel? Is that what you are suggesting?
Attorney General Holder. No, I am not saying that. I mean,
one of the things the President has got to decide in preparing
policies, making policy judgments, there are a whole variety of
legal things that come in from the Justice Department, legal
opinions. There are obviously policy considerations. I would
not say that the President for pure policy reasons would
necessarily overrule an OLC opinion. The President might have a
different legal view than the Office of Legal Counsel, a
different view than the Justice Department with regard to a
particular statute or policy initiative.
Senator Cornyn. Well, I certainly understand the role of
the OLC in informing the executive branch about what the law,
in fact, is. Indeed, in the area of enhanced interrogations and
rendition and other controversial areas that you are well
familiar with and I am as well, the question is what is the
law. And, of course--but here, on the discrete issue on the
constitutionality of a statute, how in the world would the
President of the United States have an opinion that would be
anything other than a political decision that might overrule a
legal judgment of the Office of Legal Counsel? Isn't that the
kind of politicization that we have heard decried here in this
Committee and in Congress over the last few years?
Attorney General Holder. Well, you are talking about a
hypothetical, the likes of which I am not sure I have ever
heard. But it would seem to me----
Senator Cornyn. Well, excuse me, but you are the one who
said that the President, the administration may or may not
agree with the opinion, so that is not a hypothetical in that
sense, I would submit.
Attorney General Holder. Well, I think I was focused really
more on the Attorney General not necessarily agreeing with what
an OLC opinion--an OLC position might be.
The OLC plays an important role, a vital role in saying
what the Justice Department's view is on the constitutionality
of a statute and a whole variety of other things. The
President, in formulating policy, takes into account a wide
range of things, things that come from the Justice Department,
opinions that come from other places. There are policy
determinations that go into it. And it is not--I do not know. I
am not as bothered as you are apparently by the notion that a
President in taking into account the wide range of advice and
opinions that he or she gets comes up with a determination that
might be different from what the Justice Department has
recommended.
Senator Cornyn. Well, would that have to be based on a
legal argument, or could that be based purely on political
considerations?
Attorney General Holder. I mean, usually the experience
that I have had is that--we are talking about legal arguments.
The Justice Department takes a view, I do not know, maybe the
State Department, the Defense Department takes a different view
with regard to a legal determination. The President weighs
those legal determinations and then decides one way or the
other which legal view he thinks is most appropriate.
Chairman Leahy. Senator Cornyn----
Senator Cornyn. Mr. Chairman, I know my time is up. I find
troubling, though, the idea that the Office of Legal Counsel
would render an opinion on the constitutionality of a statute
and that the administration might in its discretion overrule
that decision. I understand informing policy by saying what the
law is, is going into an overall policy judgment. But on a
discrete legal question involving the constitutionality of a
statute, I am troubled----
Chairman Leahy. And probably all the more reason why we
should get on with confirming the head of OLC.
Senator Cornyn. Well, not if we are going to overrule him
at the White House. I do not think that makes----
Chairman Leahy. Well, we----
Attorney General Holder. Just to be clear here, I mean,
with regard to the particular thing that we are talking about,
the D.C. voting rights, this did not involve the President.
This involved me. It was my determination that the better view
of the statute was that it was constitutional. I based that on
my review of the constitutional authorities who, in fact, said
the same thing, among them Ken Starr, Viet Dinh, people who are
certainly conservative in their views, but who I thought had a
better view of the constitutionality of the statute. The
President was not involved in this at all. Let us be clear.
This was the determination that I made.
Senator Cornyn. But just to be clear, the reason you will
not release the memo is because you disagree with the legal
conclusion?
Attorney General Holder. No. The reasons that I think the
memos should not be revealed is because this is an ongoing
matter, and also because I am concerned about revealing
internal deliberations in the executive branch, and
specifically within the Justice Department.
Senator Cornyn. Thank you, Mr. Chairman.
Chairman Leahy. Senator Cardin.
Senator Cardin. Attorney General Holder, it is a pleasure
to have you here, and I very much appreciate your comments,
particularly as it relates to the Civil Rights Division and the
message that you have sent in so many other areas. I want to
talk about a few.
Let me first, if I might, talk about predatory lending. The
civil rights movement was responsible for the passage of
significant legislation that was intended to end discrimination
in housing--the Fair Housing Act, the Equal Credit Opportunity
Act, the Home Mortgage Disclosure Act, the Community
Reinvestment Act, just to mention a few. And I think it did an
incredible job in ending redlining. But the problem today is
that we have reverse redlining where minority communities have
been targeted particularly for subprime loans. Let me just give
you some of the statistics that we have for 2006, leading up to
the current housing crisis.
We find that the high-cost loans, that 35 percent who were
placed in these high-cost mortgages could have been placed in
traditional fixed-rate loans. But the disturbing fact is that
of those placed in high-cost loans, it was 53.3 percent for
black borrowers, 46.2 percent for Latino, and 17.7 percent for
white borrowers. The subprime rate of foreclosure is much
higher than in the traditional fixed-rate loans.
Now, let me, if I might, quote from--the National
Association for the Advancement of Colored People Legal Defense
and Education Fund noted that, ``A case brought by the Civil
Rights Division of the Department of Justice reverberates
throughout the community, the State, and the region. It can
have industry-wide impact in terms of deterrence and reform.
The broad-based injunctive relief that the Division can pursue
cannot be matched through the efforts of individuals or private
lawsuits.''
My question is that we have not seen a case brought since
2000 as it relates to predatory lending by the Department of
Justice. I sent you a letter about a week ago concerning the
circumstances in Maryland where minority communities were
targeted with subprime mortgages. My question to you or my
request is that the Department of Justice investigate and look
at the circumstances concerning predatory lending particularly
in minority communities to see whether there is a need for
aggressive action by the Department of Justice in order to
protect our communities. And I would just request that you do
this and get back to us on it.
Attorney General Holder. Sure, we will do that, although,
Senator, I will tell you now that I think there is the need for
aggressive action by the Justice Department in this field. We
announced an initiative, a joint initiative with the Treasury
Department, the FTC, the Department of Housing and Urban
Development, and the Justice Department, and the Justice
Department component of that initiative was to look at the very
thing that you have talked about--that is, the use of these
mortgage instruments disproportionately in areas where
minorities are found and the impact that that has had, the
devastating impact that has had on minority communities as
people have not been able to make payments and have abandoned
their houses, with all the negatives that then flow from that.
So this is something that we will aggressively be looking at.
Senator Cardin. I thank you. It is not just in home
mortgages to buy homes. We find that in refinancing the
minority communities were targeted, and a large number were
convinced to go into refinancing in the subprime market and now
are losing their homes. So it appears like it was an
intentional effort, and I think the Department of Justice
activities here could be very helpful to make it clear that we
will not tolerate reverse redlining.
Attorney General Holder. Right.
Senator Cardin. Let me weigh in on the Guantanamo Bay
issues, and I must tell you, I thank you very much for your
comments as it relates to placing due process in regards to
those that are going to be detained. And I agree with the
analysis that was made by Senator Graham and others about that
process.
I chair the Terrorism Subcommittee, and we intend to have
some hearings. The Chairman has authorized us to have some
hearings, and Senator Feingold has already had hearings in
regards to the long-term detainees. As you start, as Senator
Graham said, a fresh start and how we are going to deal with
detainees, it is important that it be an open process. And I
just would urge us, we need to develop what is right for
America. But we also need to engage the international community
because we need to have better understanding from the
international community as to what America is doing in regards
to its detention policies as we try to lead internationally on
human rights issues.
I would just urge you as part of this process to be open
and go beyond just our country in trying to get better
understanding as to what we intend to do and the reasons why we
are pursuing these policies.
Attorney General Holder. I think you are absolutely right,
Senator. I have made two trips to Europe so far and have spent
a good portion of both of those trips talking about the issue
of Guantanamo with our allies. The State Department has a
gentleman, Dan Fried, who has been literally traveling the
world to talk about this issue with other countries. And so
what we are trying to do is to make the world understand that
we are trying a different approach, and an approach that I
think is consistent with who we are as a Nation and that I
think will stop the ability of our adversaries to use
Guantanamo as a recruiting tool and I think rehabilitate some
of the relationships with other countries that have been frayed
over the last few years.
Senator Cardin. Well, I think you are off to a good start
there. I think some of the things that you have already
announced are helpful. We want to be supportive, and as has
been indicated on both sides of the aisle, I think there is
support for what you are trying to do.
The last point I want to bring up is what some of my
colleagues have already brought up, and that is the
surveillance statutes. Let me just focus on the three that
expire at the end of this year, and, again, the Terrorism
Subcommittee is going to do some work here. We have the lone-
wolf provisions, the revolving wiretaps--roving wiretaps, and
the business records. Those three expire at the end of this
year, and I very much appreciate the fact that you need
adequate time to review the effectiveness of these provisions,
whether they need to be extended, and if they need to be
extended whether there needs to be further modifications, but
understand that we have an incredibly busy schedule here in
Congress as far as floor time is concerned, and these issues
are not always without controversy.
I would just urge you as quickly as possible to share
information with this Committee so that we can make adequate
judgments on the reauthorization of these tools that at least
the FBI Director said are important for national security.
Attorney General Holder. We will endeavor to do this as
quickly as we can because we are mindful of the fact that this
is obviously a very busy Committee, a very busy Congress. But
we want to make sure also that we have a good gauge of how
effective these tools are, whether or not modifications, slight
or major, need to be made. We want to be cognizant of the fact
that there are civil liberties interests that have to be
examined as well as the law enforcement equities that we have.
So we will be getting, I think, our views to you all
relatively soon, and certainly I think with enough time so that
they can be considered as you will have to consider the
reauthorization question.
Senator Cardin. Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman.
I second Senator Cardin's motion and appreciate your
response. The sooner we get your views on these three issues,
the sooner we will be able to deal with them in appropriate
way.
Second, since I am the Ranking Member on the same
Subcommittee and I have been advised we are going to have a
hearing on the detainees at Guantanamo, I would like to also
ask you to get some information to us on that. I had asked in a
letter that I sent back in May for some information following
up on the President's speech when he talked about the fact that
our super-max facilities hold hundreds of convicted terrorists.
I had written asking if you could break that down for us. I do
not have a response, so let me just do this. I am going to
submit for the record a question, because I know you cannot
answer it just sitting here, but to find out who they are, what
kind of categories of folks they are, if there are any that are
really comparable to the high-value detainees that are at
Guantanamo today. That would be very helpful to us.
Second, if you would like to comment on it right now, fine,
but to get a sense of what kind of capacity we have. My
understanding is that we are way overcrowded in the super-max
facilities today. By the way, can you just tell us, do you know
whether that is true or not right now? Or do you want to
respond for the record?
Attorney General Holder. Whether they are overcrowded?
Senator Kyl. Yes. My understanding is there is a capacity
of like 13,000-something, and there are like 20,000 being held.
Attorney General Holder. Senator, I would have to get you
those statistics. I just do not know offhand.
Senator Kyl. All right. I appreciate that.
Two other follow-up questions on that same matter. One has
to do with the recruitment of terrorists in jail. We know that
is a big problem with this particular kind of militant
Islamist, and it is something that the FBI Director testified
in the House of Representatives about. Is there anything that
you would like to offer us today on that question about how we
could prevent that from occurring? Or if you would like to
respond in the same way, I am happy to receive that.
Attorney General Holder. I understand the concern, but I
think there are measures that can be taken to minimize that
possibility. Terrorists, people who are considered terrorists,
are generally held out of the general population, so there is
not the ability to interact with other prisoners in the way
that some might and have an ability then to try to radicalize
them. And then beyond that, what we have tried to put in place
are programs to deal with, to occupy the time of the people who
are in these facilities so that they have alternatives, they
have the ability to think of a life outside the prison; and if
they have options, if they think that they have a life that
they can lead on the right side of the law, they are far less
susceptible to these radicalization efforts.
Senator Kyl. Of course, Guantanamo was constructed in such
a way as to accommodate this particular requirement. It may be
more difficult to do that with the super-max facilities.
Without asking you to respond to that today, would you include
some information in your response to this? I think all of this
would be helpful in preparation for our hearing.
Attorney General Holder. We will detail for you how we
think the facilities that we have can be used to minimize the
concerns that you have expressed.
Senator Kyl. Good. And then the final question in this area
is Senator Sessions has pointed out that it would be against
the law today to release a terrorist or accused terrorist into
the United States, into our society. Can you comment on--if
that is not an option, in other words, the resolution of the
President's dilemma here about closing Guantanamo, does not
mean releasing anyone into the United States, then I guess we
do not have to worry about it. But if it does include that
option, what is your response to the point that existing law,
the Immigration and Nationality Act, would make that a crime--
or would prevent it from happening?
Attorney General Holder. Well, certainly the House has
already passed as part of a supplemental appropriations bill--I
guess it is going to be considered by the Senate, and what I am
hearing, my intelligence tells me it is going to be passed by
the Senate, so there will be provisions in that bill that would
forbid the bringing into the United States of people who are
presently detained at Guantanamo. And, obviously, we will
respect that law, and efforts are underway to try to--to those
people who would be either transferred or released, to place
them in other countries. That is the focus of our efforts.
Senator Kyl. Thank you. Let me quickly switch now to
immigration and drug violence on the border. I tie the two
together because, unfortunately, as you undoubtedly know better
than most of us, the cartels that are now controlling the drugs
have basically taken over control of all of the things that are
being smuggled, including illegal immigrants, much to their
disadvantage as individual human beings, I might add.
Two general lines of questioning here, and, again, I can
ask you to respond to some of this for the record if it would
be easier for you.
You and I talked about Operation Streamline. This is the
idea where we use existing law to actually prosecute people who
are caught crossing the border. They get jail time, and as a
result of that, it is a huge disincentive for them to cross
because they cannot do what they want to do, which is mostly to
work, if they are in jail. And I asked you if you would get
some information for us that would be helpful in seeing whether
or not we could pursue this across more of the border than just
in the Del Rio, Yuma, and Tucson sectors, since it does seem to
be a program that is really working. We met on May 5th, and I
asked you to provide me with the estimate of resources,
increases in personnel and so on that would be required for
this.
Do you know whether your folks have been able to come up
with that yet?
Attorney General Holder. I do not know as yet if we
completed it. I know that we are working on it. I am not sure
that we have completed that yet.
Senator Kyl. OK. Well, then, let me include that question
in the record as a reminder of the information we were seeking,
and as soon as you can get that to us, I think it would be very
helpful because we cannot get the funding for these things
until you tell us what is needed. And, obviously, we have
already gone by one budget cycle.
Also helpful in that regard would be information--and I
will just ask this for the record--of how many people have been
involved in this program, how well we think it has worked and
so on, if you would provide that for us.
Attorney General Holder. Sure. We will do that.
Senator Kyl. Finally, on the matter of the State criminal
alien and assistance program, you are aware that the Federal
Government is authorized to pay States money as compensation
for the housing of illegal immigrants who have committed
crimes. Our former Governor, Janet Napolitano, now Secretary of
Homeland Security, used to write the Attorney General every
year and demand payment. Senator Feinstein and I actually got
an authorization of $975 million a year.
We need to know whether the Department of Justice has
sought that funding. There was no funding in the President's
budget. Is there any way that you can ask for supplemental
funding to cover that? And, second, will you ask for funding
for at least a portion of that authorized amount in the budget
for next year?
Attorney General Holder. I think the administration has
made the determination that in dealing with that issue there
are better ways to do it than through the use of the program
that you mentioned, and I think that is why that is reflected
as having been zeroed out in the 2010 budget. So as I said, I
think that is the administration's position at this point.
Senator Kyl. Well, my time is up, but that certainly did
not used to be Governor Napolitano's position, and I would be
very curious to know whether she agrees with the proposition
given the fact that she understands what the burdens on States
are as a result of the Federal Government failing to do its job
in controlling the border.
Attorney General Holder. I think, regardless of the
position that the administration has taken, that you do raise a
valid point, and that is that the Federal Government has to be
sensitive to the burdens that are placed on our State and local
partners as a result of enforcement efforts that happen along
the border, and we have to find ways in which we alleviate
those burdens in working with them.
I think that the administration's position is that, with
regard to this particular program, there are better ways
perhaps that we could do this.
Senator Kyl. And I would submit Operation Streamline is one
of them, so let us pursue that.
Attorney General Holder. OK.
Senator Kyl. Thank you.
Chairman Leahy. Senator Whitehouse.
Senator Whitehouse. Thank you, Mr. Chairman. And welcome,
Attorney General Holder.
Very briefly, let me first express my view that the release
of the OLC opinions was proper, was necessary, and was wise,
and was particularly important in light of the damage that had
been done to that office by its politicization during the Bush
era. Frankly, those were opinions that had to be seen to be
believed. And it really, I think, gave the legal community
around the country a far better appreciation of the depth of
the dive that that office took in that period to have those
out, entirely apart from all the other considerations. I think
it was the right call, and I respectfully but completely
disagree with our Ranking Member on that subject.
Following up on OLC, Senator Durbin asked a few questions
about the OPR investigation and its status. When we first
asked, we were told on February 18th of 2008 that this
investigation was already pending. So we know it pre-dated
February 18th of 2008. We know that OPR completed its
investigation and provided a draft report in late December of
2008. We know that on May 4th of this year the comment period
for those who were the subjects of the investigation closed in
their chance to respond to the draft. And we also know that the
CIA was given an opportunity for both substantive comment and
for classification review.
My first question is: Is it now the CIA, through its
request for either substantive comment or through its role in
classification review, that is holding up the release of this
report?
Attorney General Holder. No, it is not. Though that process
might not be complete, there are other things that still have
to be done within the Justice Department. I met yesterday with
the head of OPR, who indicates there are still some things that
they are working on in the preparation of the report, chiefly
in response to the responses that were received, I guess in
early May or so, and they are dealing with that. She is new to
the Office of Professional Responsibility, understands the
seriousness of this particular report, and that has also had an
impact on the timing of the release.
Senator Whitehouse. The role of the CIA both in substantive
comment and in classification review raises some interesting
potential conflicts of interest. Can you tell me what
assurances the Department of Justice has received from the CIA
that those who seek to influence the OPR report through
substantive comment or those who have the effect of delaying
the report through classification review are not complicit or
involved in the underlying conduct? Have you got essentially a
clean scrub of those at the CIA who are involved in those
processes to assure that they are not tainted by the program
that is the subject of the report?
Attorney General Holder. As I think I testified earlier, it
is our hope to release as complete a report as we can, and one
of the things that I think we want to do is to declassify as
much of this report as we can so that when people read it,
either in this body or the general public, they will have a
full feeling for what it is our lawyers in the Office of
Professional Responsibility dealt with and what is the basis
for the conclusions that they reached. And so we will be
pushing, as I said, to declassify as much of this report as we
can so that the American people will have a real sense of what
it is that drove the conclusions that we reach.
Senator Whitehouse. I appreciate that, but it does not
address the question of whatever assurances you got from the
CIA that in the discharge of their either substantive comment
or classification review roles, that the people involved in
that you can assure us actually had clean hands with respect to
this program and are giving legitimate, untainted, unbiased,
unimplicated advice.
Attorney General Holder. Yes, I do not think we have gotten
anything yet from the CIA, at least nothing that I am aware of,
with regard to what their position is concerning the
declassification issue. And so I think I have to wait for that
and see--this may be not an issue at all. And to the extent
that it is an issue, then I would interact with Director
Panetta and raise the questions that you raise in addition to
just our general feeling that we want to have as much of this
declassified as we possibly can. It will be the Director, I
think, who will ultimately make the decision, who I do not
think is actually tainted by it. I would be dealing with him in
trying to make determinations as to what should be and should
not be declassified.
Senator Whitehouse. And on the question of their
substantive comment on the contents of the report, how do you
assure that that is not tainted by people who are implicated in
the program?
Attorney General Holder. I am actually less----
Senator Whitehouse. Isn't that an important point? I mean,
maybe we are talking across each other.
Attorney General Holder. Yes, yes. No, I----
Senator Whitehouse. Is it not important that the CIA in
exercising its substantive comment role that it sought and in
performing the declassification review should be doing so in a
manner that keeps the agency's hands clean of implication in
the underlying subject of the report?
Attorney General Holder. Yes, I am less worried about the
substantive comments. I think we certainly would invite the
comments from any involved agency, but ultimately it would be
the Justice Department lawyers who will make the determination
as to what goes in the report, the conclusions that the report
reaches, and so I certainly want to give them the opportunity
to express whatever their views are. But that--but the
content----
Senator Whitehouse. Would they be likely to evaluate the
recommendations of the CIA differently if, on the one hand, the
CIA had not assured the Department that its recommendations
were coming from individuals who had clean hands versus those
who did not? Is that not an important factor in evaluating the
substantive comment that the CIA would seek to propose?
Attorney General Holder. Yes, I guess those are things that
one would take into consideration, but so much of this is
really fact driven. That I think is what people will find in
the report. It is fact driven, really, and the conclusions that
one draws from the facts I guess can differ. But ultimately it
will be the Justice Department's view that will control based
on the facts that we have uncovered but, as I said, taking into
account whatever other views people have of those same facts.
Senator Whitehouse. Thank you, Attorney General. My time
has expired, Chairman.
Senator Cardin. [Presiding.] Thank you very much.
Senator Klobuchar.
Senator Klobuchar. Mr. Chairman, thank you. Thank you for
being here, Attorney General Holder. I was listening to some of
my colleagues going through some of the cases and the concerns
that they had and, I think, a misplaced argument about
politicization. And as you were talking, I was thinking what
was the most high-profile case that you have dismissed, white-
collar case, since you came into office. What would you say
that is?
Attorney General Holder. Well, I would probably say it was
the Senator Stevens case.
Senator Klobuchar. That would be correct, yes, the
Republican Senator. Then I was also thinking of a decision you
made early on to allow the Republican-appointed U.S. Attorneys
to stay in place until new U.S. Attorneys had been appointed.
Was that the policy, do you know, when Bush came into office of
allowing the previous U.S. Attorneys to stay on for a length of
time?
Attorney General Holder. To be honest with you, I do not
know what exactly the policy was. The concern that we had,
though, was to maintain continuity in the U.S. Attorneys'
Offices and to leave in place those people who were doing a
good job. There has been turnover, but we have not pushed
anybody out. We are starting now to get our nominees before
this Committee and hope to have them confirmed and in place
relatively soon.
Senator Klobuchar. And how many nominees have been
confirmed by this Committee so far for the U.S. Attorney?
Attorney General Holder. None so far.
Senator Klobuchar. OK. So you would like to move that
along, I would hope.
Attorney General Holder. Yes, that would be for us a
priority, to get our U.S. Attorneys in place as quickly as
possible. It is good for the offices. It is good for our law
enforcement effort. It is good for us as we try to get our
program together.
I would also urge, respectfully, that this Committee and
the Senate act on the other nominees for other Justice
Department positions that have been sent up, everything from
Tax to the Environmental and Natural Resources Division, OLC.
There are a variety of positions that are still awaiting Senate
approval.
Senator Klobuchar. Very good. And I can tell you in our
State it has worked very well. We had, as you know, a lot of
uproar over a political appointment, and then Attorney General
Mukasey put someone new in. He is still staying on until the
person I suggested who has now been recommended by the
President, and we are hoping that we can get him in there soon.
We have some major cases pending in our jurisdiction.
The other interesting thing, this is just my most
interesting thing I learned this week, Attorney General Holder,
as I recommended a marshal. Do you know--there are 94 marshals.
Do you know how many are women in the country?
Attorney General Holder. No, I do not.
Senator Klobuchar. There is only one, in the State of
Florida, and I thought that was quite interesting. I thought I
would share that with my colleagues as we recommend people as
we go forward.
I am going to just ask a few questions about things that
are a little closer to home that people have been focused on in
my State, and that is, some of the white-collar fraud. The
Madoff case hit a lot of people in our State. As we know, that
came out through a whistleblower to the SEC, and nothing was
done. Could you talk about what is going on with the initial
steps to implement FERA as well as some of the other changes to
enforce some of the white-collar laws, as we look at a large
amount of money going out there, we look at the TARP money,
things like that, that there could be even more white-collar
fraud.
Attorney General Holder. We are in the process of ironing
out what I will call the last wrinkles in what is going to be a
comprehensive announcement about the program that we are going
to have with regard to financial fraud, white-collar crimes
more generally, mortgage fraud. We have been working with our
State and local counterparts, with the other Federal agencies,
to come up with this effort.
This is a priority for this Department of Justice to hold
people accountable who have defrauded huge numbers of people
with almost unheard of amounts of money or those who would seek
to misuse the recovery money that is now trickling into the
economy. These are things that we will be taking very close
looks at and will be emphasizing in our enforcement efforts.
Senator Klobuchar. And I know you are also working with
Secretary Sebelius on the health care fraud prevention. As we
are going into the summer focusing on health care, there is
still a significant problem with health care fraud. Estimates
could be 3 to 10 percent of the total amount of spending, you
know, amounting to billions of dollars. I saw cases myself as a
prosecutor of identity theft in hospital settings and things
like that.
I think that it will be very important as we move into this
health care debate that the work that you are doing with this
new focus is understood. Do you want to talk a little bit about
that?
Attorney General Holder. I would totally agree with that.
If you look at the statistics for last year, I think it was
about $1.2 billion that was recovered as a result of the fraud
found in the health care system. That is why Secretary Sebelius
and I have made this a priority, and it is why we have
announced a joint effort to look at these issues in two
additional cities in addition to what we are doing more
generally. I mean, that is a lot of money when you think about
it, $1.2 billion in actual money received by the Federal
Government as a result of its enforcement efforts, and we plan
to keep those efforts as strong as they are, as robust as they
are.
Senator Klobuchar. And one of the things that came out in
the FBI's financial crimes report for 2007 was that they are
actually seeing some cases--and I care about this a lot because
I come from a State where we really value high-quality health
care, and we have not had a lot of issues with this. But there
have been recent health care fraud cases which included medical
professionals risking patient harm with unnecessary surgeries
and things like that.
What are you doing to combat this particular kind of fraud?
Attorney General Holder. That is a very good point. There
is not only an economic consequence to some of the fraud that
we see; there are health care outcomes that get affected in a
negative way by at least some of the things that we have seen.
And that I found, to be very honest with you, very surprising
when I became Attorney General and saw the results of some of
these FBI efforts. And so we are going to be looking not only
at the financial aspect of this but in some ways the ultimate
fraud, whether or not patients are getting the care or the
Government's getting the care for which it is paying, and
whether or not people's lives are being put at risk.
To the extent that we prioritize this, although the
financial component obviously will be important, what we really
will emphasize is making sure that no one's life is put at risk
and that the kinds of treatment that people are expecting to
get they are, in fact, actually receiving.
Senator Klobuchar. And one last issue, and I can talk to
you about it later, but it is just the upcoming reauthorization
for the Violence Against Women Act. We had a very good hearing
here that Chairman Leahy conducted, and we had a focus on some
of the new trends and things that are happening there. And one
of them is, just because of economic problems, States not being
willing or are unable to pay and help with things like rape
kits and other things, and a line-up--I think L.A. County is
the worst of these tests that have not been done on some of the
rape kits, when, in fact, we could be potentially finding and
prosecuting people who are committing sexual assault. And so
that is just something I am sure we talk about in the future,
but it is something I am very concerned about.
Attorney General Holder. I look forward to working with you
on that.
Senator Klobuchar. Thank you.
Senator Cardin. Senator Specter.
Senator Specter. Thank you, Mr. Chairman.
Mr. Attorney General, I join my colleagues in welcoming you
here and compliment you on your many abilities, including
handling a marathon. I begin on the question of the immunity
for the telephone companies. It has been subject to a lot of
analysis and a lot of consideration by the Congress. I had
pressed an amendment to substitute the Government for the
telephone companies as the party's defendant. The provision on
immunity I thought very troublesome because what it does, in
effect, is take away the jurisdiction from the district court
to determine what has happened. It is a more sophisticated way
for court stripping, which on constitutional issues I find
unacceptable. It is not the Supreme Court of the United States,
but Marbury v. Madison established judicial supremacy here. And
the position which I pressed was to have the Government
substituted as the party defendant. I thought the telephone
companies were good citizens; they ought not to be subject to
damages, not subject to the costs of litigation.
What is wrong with that as the preferable course to
immunity which keeps the courts open to determine what happened
and not deprive party's plaintiff of their constitutional
rights and let the Government bear the cost of whatever is
involved, because it is something for the benefit of the
Government?
Attorney General Holder. Well, this was obviously something
that was debated at great length months or so ago, many months
or so ago, I think, and a determination made that given what
the telecom companies had done, the reasons why they had done
it, their interaction with the Government that the immunity
provision was appropriate.
We have been conducting ourselves on the basis of what I
consider to be at this point settled law, and as I said, I
think the debate was a robust one. There are people who
certainly have disagreed----
Senator Specter. This debate within the Department of
Justice?
Attorney General Holder. No. I meant in Congress, and more
generally, I suppose.
Senator Specter. Well, I know about that debate. I wouldn't
say it was robust. I would say it was fallacious. But how about
the Attorney General's position, the position of the Department
of Justice? Why not do that, have a substitution?
Attorney General Holder. Well, I think the administration
has taken the position that we are now dealing with a
determination that has been made by Congress. We are dealing
with existing law, and we are proceeding in that way.
Senator Specter. On the issue of the substitution, this is
not obviously determinative, but then-Senator Obama voted in
favor of the substitution. Would that influence you at all?
Attorney General Holder. Well, I will talk--I mean, you
know, if this were something the President wanted to revisit, I
would certainly listen to where he is now. I do not know if he
is in the same place----
Senator Specter. Do you think there is a difference in
institutional approach from being a Senator to being a
President?
Attorney General Holder. Possibly. Possibly. He may have
the same position, he may not. I do not know, but he is my boss
so I would listen to him.
Senator Specter. Well, Mr. Attorney General, Attorney
General Mukasey, your predecessor, invoked the immunity
defense. Did you make an independent determination after
becoming Attorney General as to whether the immunity defense
should be invoked?
Attorney General Holder. Should be--I did not hear the----
Senator Specter. Should be invoked.
Attorney General Holder. I am not sure I----
Senator Specter. There was a period of time before the
court decided the case after you became Attorney General, and
there was speculation, at least in the media, that the new
administration might not seek to invoke the immunity defense in
that case. And my question to you is: Did you consider not
using the immunity defense?
Attorney General Holder. Well, as I said, I think we dealt
with the question based on the law as it existed, and given the
fact that Congress had spoken, it did not seem to me that there
was a huge amount of flexibility that the Department had. And
so it seemed to me, the immunity having been conferred, that
that pretty much settled the question.
Senator Specter. Well, you are the Attorney General. I
recollect that even district attorneys have discretion as to
how you handle cases, quasi-judicial, if you think it is an
unfair defense, you do not have to invoke it. But let me move
on.
Chief Judge Walker has some really fascinating cases in
front of him in a number of directions, and I am concerned
about having a determination made on these matters by the
Supreme Court of the United States. I have introduced
legislation, Senate bill 877, which would mandate the Supreme
Court to take up issues like the Terrorist Surveillance
Program. That case was never decided. The Federal court in
Detroit found the Terrorist Surveillance Program
unconstitutional. The Sixth Circuit reversed on grounds of
standing, a very flexible standard, with the dissent, in my
opinion, being much more authoritative than the majority
opinion. It looks to me like it is a matter they just did not
want to decide. And then the Supreme Court of the United States
denied certiorari. And there you have a classic case of
conflict between congressional authority under the Foreign
Intelligence Surveillance Act, which provides the exclusive
means for obtaining warrants and the assertion of the President
of his Article II power as Commander-in-Chief.
One of the questions that I intend to explore with the
nominee, Judge Sotomayor, is her standards for what cases
should be taken. I would not ask her a question as to how she
would decide something, but I think it is fair to ask a
question, sometimes it is more important what cases the Court
turns down than what they decide in cases.
Would you think it worthwhile, would you think it
appropriate to have a mandate that the Court take cases like
the Terrorist Surveillance Program?
Attorney General Holder. I am not familiar--I have not read
the proposed statute. I would be a little concerned about--I do
not know--you know, I am not sure if this has been done in the
past, but it is just a separation of powers concern about
mandating Supreme Court review in a particular matter.
Obviously, the Court's jurisdiction can be defined in some way
by----
Senator Specter. Well, Congress has the authority to do
that and has done it in a fair number of cases.
Attorney General Holder. Right. But, I mean, my only
concern would be, you know, not a technical separation of
powers question, because I think the Congress probably does
have that ability, but whether or not it is an appropriate use
of Congress' authority. As I said, I have not had a chance to
review the proposed bill, and I would have to look at that
before I can comment in a more intelligent way.
Senator Specter. Would you take a look at the proposed
legislation and respond?
Mr. Chairman, I ask consent that a letter that I sent to
Attorney General Holder be included in the record concerning
health care costs. The Subcommittee had a hearing on that, and
we had testimony that there are some people who are claiming
money under Medicare and Medicaid who are deceased and doctors
who are submitting claims who are deceased, and looking at ways
to save money, that is really on the front burner. If you could
take a look at that letter and respond, I would appreciate it.
Senator Cardin. Without objection, the letter will be made
part of the record.
Senator Specter. Thank you, Mr. Chairman. Thank you, Mr.
Attorney General.
Attorney General Holder. Thank you, Senator.
Senator Cardin. Senator Schumer.
Senator Schumer. Thank you, Mr. Chairman. It is good to
call you ``Mr. Chairman.'' I have three questions. We will try
to get them done quickly. I know you have to get to the House
and do the same thing here. So my appreciation and sympathies.
First, on hate crimes, I know you have spoken about the
need to pass improved hate crimes legislation. I think we have
to move this legislation quickly. It is hard for me to believe
that people oppose hate crimes legislation, you know, aimed to
protect any group, whether it be religious, racial, ethnic, or
sexual orientation.
Would the administration support a move to bring hate
crimes up very quickly here and help us try to get that
through?
Attorney General Holder. Absolutely, Senator. This is a
priority for us. I testified on behalf of this hate crimes bill
10 years ago when I was the Deputy Attorney General, so I do
not think this is something that we are doing in great haste. I
mean, this is something we have been thinking about for a
decade, and given the recent events that we have seen in this
Nation, I think the need for this legislation is all that much
more apparent.
Senator Schumer. Second, as you know, my staff has been
working with yours and the White House on a reporter's shield
bill. Senator Specter and I, when we were on opposite sides of
the aisle, had a bipartisan bill. Now it is, I guess--it is
still a bipartisan bill. There are other members of the other
side who support it, although they are welcome to come over
like Senator Specter did and make it a partisan bill. But, in
any case, we are talking about it.
Two questions. Can the Department of Justice support a
well-balanced reporter's shield bill? And can you commit to
working with Senator Specter, myself, and, of course, Chairman
Leahy to get such a bill to the floor as quickly as possible so
we can pass it this year?
Attorney General Holder. Yes, I think the Department can
support, the administration can support such a bill. The
concern we have, again, is with protecting, making sure that
the bill does not impede our ability to protect national
security or our ability to prosecute those who would leak
national security information. But even given those concerns, I
think there is a way in which we can construct a bill that all
would find acceptable.
Senator Schumer. Good. I would just urge--your staff and my
staff have had good negotiations, but to move those and
conclude those. I do not think we are that far apart.
Attorney General Holder. I think that is right.
Senator Schumer. And I think we can still protect
whistleblowers and people like that, and at the same time not
deal with state secrets. There was a bill, as you know, that
was way over and just said almost no recognition of either
secrecy, grand jury secrecy, or things like that, or secrets.
That is not our bill. Our bill is a balanced bill, and we need
you to get on board as quickly as possible, and we are willing
to make changes.
The third and last question I have is ICE authority.
Senator Feinstein talked a little about some drug trafficking,
and we are facing a sustained and organized effort by
sophisticated cartels. But ICE does not have clear Title 21
authority to deal with all forms of illegal contraband,
particularly in the context of border enforcement and
enforcement at our ports. The issue was just raised yesterday
in the New York Times by a senior Bush adviser on homeland
security. It makes no sense for the main agency stationed along
the border to lack power to arrest criminals there.
So two questions, my two last: Do you intend to remedy the
arrangement you currently have with ICE to give ICE agents
authority to arrest drug smugglers on the border? And what is
the status of any discussions you are having with the
Department of Homeland Security about remedying this problem?
Attorney General Holder. This is an unbelievably timely
question. As we left the White House last night at about 7:15,
7 o'clock, Secretary Napolitano and I were talking about----
Senator Schumer. Yes, I talked to her about it this week.
Attorney General Holder. Right. We were talking about this
very issue, and I think we are in a position to announce that
we have an agreement. I do not want to steal anybody's thunder
here, but we have reached, I think, essentially an agreement,
and I think it is going to be announced within days.
Senator Schumer. Well, I think you just announced it, and I
am glad you did.
Attorney General Holder. Don't count this as the formal
announcement.
Senator Schumer. It is not a formal announcement. It is an
informal announcement of an agreement, but it makes eminent
sense to do, and it really hampers our ability to control our
borders when the agency that is doing all the patrolling has to
call somebody up, they have to get in a car, especially when
you are dealing with people you are tracking down and chasing
and everything else. And so I am glad that you and Secretary
Napolitano have come to an agreement. I spoke to her last week
about it, and she seemed very positive as well.
Mr. Chairman, I yield my remaining 2 minutes and 25 seconds
so that the Attorney General can have some lunch before he has
to get over to the House.
Senator Cardin. With your indulgence, Mr. Attorney General,
there are a few members who would like to have a second round,
and I think we can handle it pretty quickly, if you are
prepared to continue.
Attorney General Holder. That is fine.
Senator Cardin. Senator Sessions.
Senator Sessions. Thank you.
Mr. Attorney General, with regard to the questions earlier
about the Inspector General's report of the OLC memorandum, I
understand that the Department of Justice under your leadership
has stated that they think it was appropriate to allow the
lawyers who participated in that to be able to respond to the
report's initial draft. Is that right?
Attorney General Holder. Sure. I think that is fine, yes.
Senator Sessions. Somebody suggested otherwise, but that is
what the Government Accountability Office does. When they make
a report, they give the people a chance to respond. And I
understand that Attorney General Mukasey and maybe others have
asked that they be able to submit a letter as a part of that
report. Have you decided whether they would be able to have
their response made a part of that record?
Attorney General Holder. Yes, we actually have views
expressed by former Deputy Attorney General Filip and former
Attorney General Mukasey. It would be my intention, subject to
their approval, to include their comments, their views as part
of the release of the report. I have not checked with them, but
I assume that they would not have objection to that. And
assuming they did not, I would make that a part of the report.
Senator Sessions. Previously you have heard reference to
warrantless wiretapping, suggesting this was a great violation
of constitutional rights. But for the most part, as I
understand these difficulties, they arise from a lawful
intercept, maybe in a foreign country, maybe of a satellite
phone or something in Afghanistan. Those are legally
intercepted--and I think e-mails could be, too--as part of an
intelligence-gathering operation, and that is lawful. It is
lawful with regard to that individual.
Now, if they all of a sudden make a phone call to some
terrorist cell in the United States, someone could argue that
that is illegally wiretapping an American citizen. But, in
truth, the intercept is of a person identified as part of an
intel operation outside the United States, and that has never
been considered something that is controlled by warrants.
Attorney General Holder. So you are saying that you
actually have existing authority on somebody who is overseas
who happens to place a call into the United States.
Senator Sessions. That is correct.
Attorney General Holder. It would seem to me----
Senator Sessions. That is what we have been arguing over,
frankly. If you wiretap a Mafia leader and he calls somebody
whom the court does not have an approval for, you can listen in
on that conversation. Isn't that right? Isn't that part of the
approval? So if you have a lawful tap on a foreign person, I
think the principle is the same. That is all I am saying, and I
think we have exaggerated the extent to which this is somehow
violative of our Constitution. That is just my personal view of
it.
Attorney General Holder. I would agree with that, except
there are obviously minimization requirements that----
Senator Sessions. There are minimization requirements, and
if you go to the center here that deals with that, they have
incredible discipline on those issues. But with regard to your
statement concerning the Office of Legal Counsel's opinion
apparently concluding that the D.C. voting bill that was
passed, is unconstitutional, you say you are hesitant to
release those internal memoranda. But apparently members of
this Committee think it is right to demand those kinds of
releases and have demanded, for example, the terrorist
interrogation memoranda, and actually they have had the legal
analysis of that for some time. But it bothers me that you had
no real concern, or the President did not, about releasing
portions of those memoranda that deal explicitly with
techniques that could be used, information that I think could
be helpful to the enemy. That is the way I would see that.
Attorney General Holder. Well, with regard to those memos,
the decision the President made was based on, I guess, a couple
of factors. One, the information that was contained in those
reports was largely public. The techniques that were described
in those memos had been banned by the President. And we also
thought that the continued use of those techniques--or the
thought that those techniques were going to be continued to be
used also gave a propaganda victory to those who wanted to do
us harm. And for all those reasons, we thought that the release
of those OLC memos was appropriate.
Senator Sessions. Well, it was disapproved of by your
predecessor, Judge Mukasey, and Mr. Hayden, the CIA Director.
They did not approve of that at all. And I do not think it was
necessary, and I think it makes your opinion that you are
hesitant to release internal memoranda concerning the D.C.
voting less persuasive, frankly.
Attorney General Holder. Well, I would disagree because I
think they are fundamentally different, but I--you know.
Senator Sessions. One is political and one has to do with
life and death. They are different, in my opinion.
Attorney General Holder. Well, no, I would not agree with
that. I think we use neutral and detached principles in making
the decisions in both cases. There is not a political component
in the decision to seek the--in releasing some material and
withholding others. There is no political consideration on my
part at all.
Senator Sessions. Well, one involves nothing but a matter
of important legislation of a political nature here in the
Congress, and that is what you do not want to release, but you
were willing to release matters that the DNI and the Attorney
General believed were damaging to our national security.
Attorney General Holder. Well, one Attorney General thought
that. I am the Attorney General of the United States, and it is
this Attorney General's view that the release of that
information was appropriate, as well as the President of the
United States. I respect their opinions, but I had to make the
decision holding the office that I now hold.
Senator Sessions. With regard to Guantanamo, I just would
offer that we do perform a thorough initial review when someone
is brought into Guantanamo, and we give them an annual status
review. So I am not sure what else you are going to add to
that. I am willing to hear, but we are doing those things, and
Senator Graham has worked to try to make them effective and
appropriate under the case law and statutes of our country.
Do you think, with regard to the firearms question, that
the right to keep and bear arms is a fundamental right under
the Constitution?
Attorney General Holder. Sure. It is a Second Amendment
right.
Senator Sessions. And it is a fundamental right?
Attorney General Holder. Yes. The Supreme Court has
indicated as such.
Senator Sessions. Actually, they have not.
Attorney General Holder. I am sorry. I did not----
Senator Sessions. Actually, they have not. It is a matter
of some significance that in the Heller case they simply held
that the Second Amendment applied to the Federal Government.
They footnoted that they were not saying whether or not it
applied to the states, and apparently, the test as to whether
it applies to the States is a question of whether it is a
fundamental right.
Attorney General Holder. That is a good point, and I need
to go back to law school. You raise a very good point, Senator.
Senator Sessions. It is a big deal, because the Second
Amendment will be eviscerated if it is not considered to be a
fundamental right and made applicable to the States.
Thank you. My time is up. I look forward to working with
you. We will disagree on some things. You are a good advocate
for your views. I congratulate you on that. But this is a
serious matter we are dealing with--national security.
Attorney General Holder. Sure, and obviously, you know, we
have worked together well. You have been supportive of me when
you thought that was appropriate; you have taken me to task
when you thought that was also appropriate. And you have
actually been a teacher for me today, so thank you for that.
Senator Cardin. Senator Graham.
Senator Graham. Thank you, Mr. Chairman.
I know you have got to go to lunch, and I appreciate your
patience. You have done a very good job of testifying before
the Committee.
I just talked to the White House a moment ago, Rahm
Emanuel, and he has indicated to me that the President will not
let these photos see the light of day, that he would prefer the
Congress to act. Have you seen the Lieberman-Graham amendment
to the supplemental that would prohibit the release of these
photos for a 3-year period if the Secretary of Defense
certifies them to be a danger to our troops and civilians
overseas?
Attorney General Holder. I have not seen that, Senator, but
that----
Senator Graham. OK. Fair enough. I will get it to you. And
do you agree with me that it would be the preferred route, in
terms of impressing the Court, that Congress would act on this
subject matter rather than an Executive order?
Attorney General Holder. Yes, I think that having Congress
act would be a preferred way in which to----
Senator Graham. Would give us a stronger hand and the
better way to deal with this issue.
Attorney General Holder. Yes, I do think----
Senator Graham. And I would just like to let the Committee
know, my beef is not with the courts. I think unless these
documents are classified or Congress acts, the courts are
making a reasonable interpretation of the Freedom of
Information Act as it exists today. And I want to applaud the
administration for asking them to stay and have the Supreme
Court review that case. But, quite frankly, Mr. Attorney
General, I would be very--I would not be surprised if the
Supreme Court decided not to hear this case or honor your
petition for certiorari and let the order stand. So I think it
is very imperative that one of us act, the Congress or the
administration. I have been assured by Rahm Emanuel and
yourself, I think, that the President's position is not to let
these photos see the light of day. The Majority Leader is going
to give us another vote in the Senate, and I would ask the
administration after that vote to urge the House to take it up,
because that is the best way to protect the troops. Do you
agree with that?
Senator Graham. I do. I think that there are compelling
reasons why these photos should not be released.
Senator Graham. Sure, and I would like to introduce into
the record the statements of Generals Odierno and Petraeus that
were filed by the Government as part of the--their
declarations, as part of the lawsuit indicating the danger to
our troops if the photos were released, to back up what you are
saying.
Now, the military----
Senator Cardin. Without objection, that will be included in
the record.
Senator Graham. Thank you, Mr. Chairman.
The Military Commissions Act, I am amazed. We are 8 years
into this war, basically, since 9/11. This September will be
the eighth anniversary, and we are still talking about how to
do this. And it is very complicated, and most of your
questioning today has been about matters, legal matters
surrounding the war. And I will continue to call it war. You
can call it anything you would like. But the Military
Commissions Act, the administration would like to make some
changes. I agree with that. I am working with Senators Levin
and McCain in the Armed Services Committee to make some changes
in the next few weeks for the defense authorization bill.
I would urge you to get with us soon. Will you do that?
Attorney General Holder. Yes, we will. We have been
discussing this internally. We have some thoughts and
proposals, and I think it is time for us to share those.
Senator Graham. And I would like to do more than just amend
the Military Commissions Act, and I would like to deal with
this third bucket, the folks who may not be subject to trial
but too dangerous to let go. And the reason I say that is that
we are losing, you know, whatever damage we are trying to
repair with the international community over Guantanamo Bay, we
are losing the public here about closing the facility. When you
look at the polling data, there has been a severe change
against the idea of closing Guantanamo Bay. Have you noticed
that?
Attorney General Holder. Believe me, I have noticed.
[Laughter.]
Senator Graham. I am sure the President has.
Attorney General Holder. I think it was raised, I don't
remember by whom, one of the Senators, about the notion of
having our plan out there. And I think that is something that
we are planning to do and that we need to do as quickly as
possible. I think we need to have our views on the entirety of
this----
Senator Graham. Exactly.
Attorney General Holder. Our comprehensive views on buckets
one, two, and three, and all the related things out as quickly
as we can.
Senator Graham. And habeas review, one, I want to
congratulate you for appealing the district court's decision to
apply habeas corpus rights to detainees at the Bagram Air Base.
Why did you do that?
Attorney General Holder. It is our view of the law--I mean,
he is a very good judge, a person whom I have worked with.
Senator Graham. Sure.
Attorney General Holder. I think that the judge is just
wrong. I just do not think that habeas applies to theaters of
war.
Senator Graham. It would really disrupt the war effort if
our troops and their commanders would be subject to appearing
before Federal judges, called off the battlefield all the way
back to the United States. It would really be disruptive, and
something that has never been done before. Is that correct?
Attorney General Holder. As far as I know, and that was the
reason why we decided to seek the appeal.
Senator Graham. Now, Senators Leahy and Specter a couple
years ago introduced a habeas reform bill allowing detainees at
Guantanamo Bay, who now have habeas rights, a one-time shot at
it, and they could not bring money damages suits against our
troops. Are you supportive of making sure that any habeas
petition does not allow the terrorist, the accused terrorist to
sue our own military members?
Attorney General Holder. I have not looked at that bill,
but I have to tell you they have a visceral positive reaction
to that view. Clearly, we want to have habeas rights that
protect the welfare of the people who are being detained. But
the notion that our troops might be the subject of lawsuits is
something that I would be very wary of.
Senator Graham. And the only reason I mention it is because
lawsuits were brought against an army doctor for medical
malpractice by one of the detainees. So we have streamlined
habeas procedures in other areas of domestic law. Is that
correct? Post-conviction relief?
Attorney General Holder. We do.
Senator Graham. So there is no right of anybody to an
unlimited habeas appeal.
Attorney General Holder. That is true. I mean, I would like
to look at what the specific proposal might be.
Senator Graham. Sure. What I want you to consider is that
since these detainees have habeas rights that we can look at
consolidating their cases, the uniform standards, so we do not
have different standards by different judges and to, you know,
put the burden on the Government to make sure that we have a
uniform way of looking at this. And this is something we need
to talk about sooner rather than later, because as the Armed
Services Committee moves forward on amending the Military
Commissions Act, I think there will be a comprehensive proposal
coming out from Senator McCain and myself, and I would like to
work with you about how to do that.
Attorney General Holder. Sure. I look forward to working
with you.
Senator Graham. Final thing. If we are following a
satellite phone in Afghanistan, and we believe the person in
question is a member of the enemy force, what is your
understanding of the law if they are talking to someone else in
Afghanistan, but due to the routine system it goes through an
American interchange? Do we have to get a warrant in that
situation? And does that make sense, if we do?
Attorney General Holder. So we have two parties overseas,
two parties in Afghanistan----
Senator Graham. Being monitored by our military.
Attorney General Holder. Monitored by the military.
Senator Graham. Right. They are active combatants. They are
being monitored by our mortgage intelligence services. They are
talking to each other in Afghanistan. And the only connection
to the United States is that due to the phone system in
question, they have to go through an interchange in the United
States. What is your view of the law as to that circumstance?
Attorney General Holder. It is not my view that we would
need a warrant, if that is the question you are asking me, in
order to intercept that conversation. But let me make
absolutely certain that is--I do not believe we would need a
warrant. I think it depends on the location of the parties.
Senator Graham. The only reason I mention this--and I know
I have run over my time--is that when we had the two soldiers
kidnapped in Iraq, during this whole debate about wiretapping,
they picked up communications from one of the kidnappers to
someone else in Iraq, and because it went through an exchange
in the United States, it took 2 hours to get approval to
continue to monitor that conversation, and we lost valuable
time.
Please look at this and make sure that we are not, in the
name of, you know, making ourselves to be a rule-of-law Nation,
not doing something unrequired and, quite frankly, stupid. I do
not want Americans to be monitored as being suspected fifth
column movement members of al Qaeda. If you think I am a member
of al Qaeda, I want you to go get a warrant if I am talking to
somebody overseas. I want you to--you know, any American in
that situation. But when it comes to battlefield
communications, let us do not let this debate hamper our
ability to protect our troops. And I am afraid that is where we
are headed.
Attorney General Holder. Yes, again, just to clarify, if we
have two non-U.S. persons speaking to one another, I do not
think there is the need for----
Senator Graham. But I can tell you in this case, because an
American phone company's interchange was involved, they lost
valuable time. Please look at that, and I will talk with you
further about it.
Attorney General Holder. OK. Thank you.
Senator Cardin. Attorney General Holder, let me ask you, if
I might, about voting rights cases, because we have not really
touched on that too much during this hearing. Section 5 of the
Voting Rights Act, we all know that this is on appeal--this is
on hearing now before the Supreme Court. I was there during the
oral arguments. But the preclearance Congress has felt was a
very valuable tool to deal with potential and actual
discrimination against voters. And Congress recently acted to
reauthorize the Voting Rights Act.
I just want to get your views as to how important you think
the preclearance provisions are and how you will be monitoring
what the Supreme Court decision might restrict.
Attorney General Holder. Well, obviously, we await the
Supreme Court's decision, but that portion of the Voting Rights
Act is a key for our efforts in trying to protect the voting
rights of all Americans.
If you look at just the numbers, the number of--even though
we have made great progress in this Nation, the number of cases
that are brought under that section have not dwindled. The fact
that Congress unanimously 3 years ago, 2 years ago,
reauthorized the Act I think is a recognition on the part of
Congress that the need still exists.
We argued, I think, very strongly for the continued
viability of that section, and it is our hope that the Court
will agree. We will see what the Supreme Court opinion is and
then obviously have to react to it. But it is our view, it is
this administration's view, that Section 5 is a critical part
of the Voting Rights Act.
Senator Cardin. Well, I am glad to hear that. I strongly
agree with you, and I think most of the Members of Congress
strongly agree with you, with that statement, and we hope the
Supreme Court will likewise see the relevancy of continuing the
Voting Rights Act in preclearance. But it needs to be monitored
closely, and one of the issues that I have raised in previous
hearings with you is the aggressive action of the Department of
Justice in protecting the fundamental rights of all Americans
to be able to cast their votes and to have those votes properly
counted. And we will continue to monitor that situation.
I just want to also add my support for your statements in
regards to the hate crimes statute in response to your initial
statement and Senator Schumer's comments. We really are looking
for an opportunity to advance the statute for all the reasons
that you have said in your statement and response to
questioning.
Then, last, I just want to make sure I put on the record
legal services and pro bono. I mention it frequently, and I do
not want this hearing to go without a strong effort to make
sure that the Department of Justice is the leader in access to
our legal services by all of the people of this Nation. I think
the Attorney General and the Department of Justice can play a
very important role.
Attorney General Holder. I agree with that. We talked about
this during my visit with you during the confirmation process,
and the concerns that you raised at that point I think are
extremely legitimate ones. I think the Attorney General has to
take a leadership role in this in the way that President
Clinton did and Attorney General Reno did and the Lawyers for
One America project that I had a role in effectuating. So I
think that your concerns are very serious ones and ones that we
will try to work with you on.
Senator Cardin. We thank you for that, and it has been very
refreshing to hear from the Attorney General here today and
such candid responses to our questions. I think you have
restored the confidence of the American people in the
Department of Justice being there for all the citizens of our
country, and we look forward to continuing to work in a
constructive way as we deal with some very difficult
challenges, whether it is how we handle the detainees at
Guantanamo Bay or in Afghanistan, or how we deal with the
surveillance programs of this country. These are all issues in
which we have to work together. We will not always agree, but I
think it is important that we have these candid discussions.
We thank you very much for your attendance here today.
Attorney General Holder. Thank you.
Senator Cardin. With that, the Chairman has indicated that
the record will stay open for questions from the members of the
Committee. With that, the Committee will stand adjourned. Thank
you very much.
Attorney General Holder. Thank you, Mr. Chairman.
[Whereupon, at 1:03 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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