HEARING OF THE HOUSE JUDICIARY COMMITTEE
SUBJECT: THE DEPARTMENT OF JUSTICE
CHAIRED BY: REP. JOHN CONYERS (D-MI)
WITNESS: ATTORNEY GENERAL ERIC HOLDER
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REP. CONYERS: The committee will come to order. Good morning. We welcome everyone to today's oversight hearing on the Department of Justice with the Honorable Attorney General Eric Holder whose career and relationship to the House Judiciary is well known. A distinguished public service career, Columbia University, Justice Department public integrity section; judge of the Superior Court; U.S. Attorney for the District of Columbia; and deputy attorney general in 1997; Covington and Burling for a number of years; and confirmed as the Attorney General of the United States in February of this year.
Most of us know the attorney general. We welcome him and we agreed that we'd permit him to make his opening statement and additional comments and then we will return to the regular order with Mr. Smith and myself making opening comments at that time.
Welcome again to this hearing room, Attorney General Holder. You know most of the people, except for Quigley and three freshmen Republicans who have never done this before. And so we are happy to have you with us.
ATTY GEN. HOLDER: Well, I'm glad to be here. Good morning, Mr. Chairman, Ranking Member Smith, and members of the committee. And thank you for the opportunity to appear before you today to highlight the work and the priorities of the U.S. Department of Justice.
I'd also like to thank you for your ongoing 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 I think that we do.
As you know, the department is responsible for ensuring public safety against threats, both foreign and domestic; ensuring fair and impartial administration of justice for all Americans; assisting our state and local partners; and defending the interests of the United States according to the law.
As I testified during my confirmation hearings earlier this year, we will pursue a very specific set of goals. And already over the first 100-plus days as my tenure as attorney general we have begun working to strengthen the activities of the federal government that protect the American people from terrorism, and we'll do all that we can within the letter and spirit of the Constitution to continue to do so.
We've been working to restore the credibility of a department that was badly shaken by allegations of improper political interference. We have been reinvigorating the traditional missions of the department. I feel strongly that without ever relaxing our guard in the fight against global terrorism, it is imperative that the department also embrace its historic role in fighting crime, protecting civil rights, preserving the environment, and ensuring fairness in the marketplace.
Before answering your questions, I'd ask you to allow me to briefly talk about several of our current initiatives. I've provided more detail on each of them in my written statement that I have submitted.
With regard to national security, this is the highest priority of the department, and that is to protect the American people against acts of terrorism. The department has improved significantly its ability to identify, to penetrate and to dismantle terrorist plots as a result of a series of structural reforms, the development of new intelligence and law enforcement tools, and a new mind-set that values information-sharing, communication and prevention.
Working with our federal, state and local partners as well as our international counterparts, the department is working tirelessly to safeguard America.
With regard to the Mexican cartels in the Southwest border, the department has undertaken significant work to confront the threat posted by the Mexican cartels and to ensure the security of our Southwest border. We are increasing our focus on the investigations and prosecution of southbound smuggling of guns and cash that fuel the violence and corruption in Mexico, as well as attacking the cartels in Mexico itself in partnership with the Mexican authorities.
We are also policing the border to interdict and to deter the illegal crossing of undocumented persons or contraband goods and confronting the large and sophisticated criminal organizations operating simultaneously on both sides of the border.
With regard to Guantanamo, the department is leading the work set out by President Obama to close the detention facility at the Guantanamo Bay Naval Base and to ensure that policies going forward for detention, for interrogation and transfer of detainees live up to our nation's value.
Paramount is our commitment to doing everything possible again to keep the American people safe.
With regard to financial and mortgage fraud, as we work to reinvigorate the department's traditional law enforcement mission, we have focused significantly on financial crimes. The successful prosecution of Bernard Madoff is one tangible example of the progress we are making in this area, and the investigation of that particular matter continues.
Moreover, the administration has announced a new coordinated effort across federal and state governments and the private sector to target mortgage loan modification fraud and foreclosure rescue scams which aligns responses from federal law enforcement agencies, state investigators and prosecutors, civil enforcement authorities, as well as the private sector.
I appreciate the committee's work with us on legislation to 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.
Additionally, I am committed to ensuring that homeowners who may be having difficulty making their mortgage payments do not experience discrimination and can benefit in equal measure from legitimate loan modification programs and other federal programs designed to provide mortgage assistance and to stabilize home prices. We will use the full range of our enforcement authority to investigate and to prosecute this type of lending discrimination.
With regard to civil rights, the department continues to be 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 also in the voting booth.
One important element of strengthening civil rights is to ensure fairness in the administration of our criminal laws. The Justice Department firmly believes that our criminal and sentencing laws must be tough, they must be predictable, they must be fair, and they must be free from unwarranted racial and ethnic disparities. The Justice Department has recently begun a comprehensive review of federal sentencing policy. I've asked the deputy attorney general to convene and to chair a department-wide sentencing and corrections policy working group that will examine, among other issues, federal cocaine sentencing policy. Based on that review, we will determine what sentencing reforms are appropriate including making recommendations to Congress on changes to crack and powder cocaine sentencing policy.
Another civil rights issue that is a priority for us is the enactment of an effective hate crimes legislation bill. And I thank you, Mr. Chairman, for your leadership in this area.
Finally, with regard to the American Recovery and Reinvestment Act of 2009, that included $4 billion in Department of Justice grant funding that will be distributed by the Justice Department's three major grant-making offices: the Office of Justice Programs, the Office of Violence Against Women, and the Community Oriented Police and Services Office, also known as COPS.
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 mission, a key element of which is partnership with state, local and tribal law enforcement agencies, and is vital to keeping our community strong.
As governors, mayors and local law enforcement professionals struggle during the current economic crisis, we will remain steadfast in our commitment to fighting crime and keeping communities safe.
Chairman Conyers, Ranking Member Smith, and members of the committee, I want to thank you again for this opportunity to address the Department of Justice's priorities. I will be pleased to answer any questions that you might have. Thank you.
REP. CONYERS: Thank you very much, General Holder. We welcome your first appearance to the committee today. We are very sensitive to the fact that this administration and the department have hit the ground running. These first 110 days or so have not been short of activity and setting a new direction, and it's been exciting and breath-taking to watch.
I wanted to raise a number of questions for you: the department's use of state secrets privilege; the detention policy for detainees both at Guantanamo and around the world; your department's position with respect to possible prosecution of government officials who may have authorized the use of torture, and whether it might be appropriate to appoint a special counsel as more than a dozen of the committee members of the Judiciary have suggested; the release of additional, still-secret, Office of Legal Counsel memos relating to the so-called War on Terror and the pending Office of Professional Responsibility investigation and the investigation of those who wrote such memos; the department's position in the Black Farmers Case, the Pigford matter; the decision to reverse course and oppose release of detainee abuse photos even after the department told the federal court that they would be released; and a proposal contained in a bipartisan measure I've introduced to create an independent, blue-ribbon commission to investigate and tell the American people about the real reason that we entered into a war on terror.
And so that's all the questions I have. (Laughter.)
ATTY GEN. HOLDER: Where would you like me to start, Mr. Chairman? (Laughter.)
REP. CONYERS: Well, you could start from the end and work back to the front if you'd like.
ATTY GEN. HOLDER: Let me get my opening statement.
REP. CONYERS: Well, wait a minute. Let's hear from Mr. Smith. He has a much longer list than I do. Lamar Smith.
REP. LAMAR SMITH (R-TX): Thank you, Mr. Chairman. And welcome, Mr. Attorney General.
The President made a campaign promise to close the Guantanamo Bay Terrorist Detention Facility before he had been briefed by our National Security agencies. But keeping his campaign pledge could in fact endanger American lives. Before the administration transfers detainees to the United States, the American people need to know why al Qaeda financial specialist, organizational experts, bomb-makers and recruiters are being sent to our shores. They will certainly give new purpose to Neighborhood Watch organizations.
Under this administration's approach, some terrorists will end up in American jails, but their detention facility could become a target for attack by terrorist sleeper cells here and around the world. The United States already gives such detainees more rights than any other country. If moved to the U.S., these terrorists could be granted even more constitutional rights. Supreme Court precedents indicate federal courts can bestow constitutional rights on people simply because they are on U.S. soil. Those rights could mean information obtained or heard after a terrorist has been captured is inadmissible as evidence.
If terrorist attorneys form-shop for friendly federal judges they could be released into American communities and become a threat to our families and neighbors. And if detainees are transferred to other countries, there is no guarantee they will continue to be incarcerated. They could be released, returned to the battlefield, and kill Americans or our allies.
According to Pentagon sources, at least 15 percent of released detainees have returned to fight our troops, and no doubt many more have gone undetected. Media reports indicate that 17 Uighurs are in the process of being released into the United States. They are all associated with terrorist organizations. They admitted that they were trained by known terrorists who were part of a group that threatened to kill civilians at the Olympic Games in China last year.
All this is occurring when there is nothing wrong with the Gitmo facility. Following the attorney general's trip to Guantanamo Bay, he admitted that, quote, "The facilities are good ones," end quote.
Before a single detainee is transferred or released anywhere, all unclassified files regarding their backgrounds should be made public. However, it appears the administration is sharing more information about the detainees with foreign governments than it is with the American people. Anxious Americans shouldn't have to hope for a postcard from France to get information about terrorists.
The administration has replaced the phrase "enemy combatants" with "detainees," "war on terror" with "oversea contingency operations," and the term "terrorism" with "man-caused disasters." But these attempts to downplay dangerous threats to America don't change the fact that al Qaeda and others still want to kill Americans.
Worrying about image more than substance trivializes the very real risks to American lives. I am concerned that in its first few months in office, this administration has engaged in a pattern of behavior that is endangering the American people. First, the President announced the closing of Guantanamo Bay without any plan for the terrorists detained there, and has admitted that he cannot guarantee that those detainees who are released will not seek to attack our country again.
Second, the administration has made public sensitive information regarding top secret interrogation techniques giving our enemies a road map to neutralizing these techniques in the future.
Third, the administration has expressed support for repealing the Real ID Act, one of the central recommendations of the bipartisan 9/11 Commission. Repeal of the Real ID will once again allow terrorists, including those in the country illegally, to obtain U.S. driver's licenses and acquire the appearance of legitimacy.
Fourth, the administration has continued to ignore federal law and tolerate state and local so-called sanctuary policies protecting illegal immigrants including illegal immigrant criminals from deportation. Time and again we have seen Americans killed and injured by illegal immigrants who are protected from deportation by these sanctuary policies.
Fifth, the Justice Department recently has come out in favor of equalizing the penalties for powder and crack cocaine, an intensely addictive drug. We shouldn't forget that it was the escalating violence in the inner cities across the country that resulted in the stiff crack penalties. The administration officials need to take responsibility for their actions. If they don't, the American people should hold them accountable.
Mr. Chairman, with these concerns in mind, I welcome the attorney general again and look forward to our hearing and to his testimony.
REP. CONYERS: Thank you, Lamar Smith.
We have several votes. It will probably take an hour. So we'll stand in recess and we'll resume as soon as the votes are concluded.
ATTY GEN. HOLDER: Thank you.
REP. CONYERS: Thank you, General Holder.
REP. CONYERS: The committee will come to order. Thank you for your patience, General Holder.
Returning to my list of questions. We appreciated receiving the letter recently from the Office of Professional Responsibility investigation on the Department of Justice lawyers who wrote the Office of Legal Counsel memos on waterboarding and other troubling interrogation tactics. When do you expect an OPR report to be complete on this matter?
ATTY GEN. HOLDER: I'm not sure. I think we're at the end of the process. This has all been reported in the press. I mean, I don't think I would normally go into this much detail. But the lawyers had an opportunity to respond to the report. Those responses have been received. I understand that OPR is in the process of working on a report. I've not actually seen the report as yet, but I would think we're looking at a matter of weeks before it will become complete.
REP. CONYERS: And we'll hope that you will continue your relationship with this committee to arrange for the OPR director to testify before us and possibly along with other former OLC attorneys after the report is complete.
It's been said by yourself that you'll look at the OPR report itself, the facts and the law to decide whether to appoint a special counsel on possible misconduct concerning torture, as more than a dozen members of the Judiciary Committee have suggested. We know that you'll make a careful judgment on this issue. Is there anything you can tell us about how you'll make this judgment and the factors you'd consider, including whether that will include our international treaty obligations relating to prosecuting torture?
ATTY GEN. HOLDER: Well, as the president has said and I have said repeatedly with regard to investigating this matter, that for those agents who relied on and in good faith relied on the statements in the bounds of those OLC memoranda, those are not matters that we think we would be looking into. Beyond that, as I said, we would allow the law and the facts to take us wherever that was appropriate. So as things are developed, those matters are developed, facts become more evident, those are the kinds of things that would obviously fall into that determination.
REP. CONYERS: Okay. I and others have proposed the creation of an independent blue ribbon commission with subpoena power, more or less modeled after the 9/11 commission, to investigate and report on the interrogations and other policies previously undertaken in the name of the war on terror. The New York Times, Washington Post, Senator Leahy and many others have endorsed this idea. Can we solicit your concurrence this afternoon?
ATTY GEN. HOLDER: I have a hard enough time trying to help run the Justice Department with regard to what Congress is going to do with regard to investigating things. I will leave that to you all to decide.
REP. CONYERS: Yes, but that's why you're here today, for us to coordinate more effectively our relationship. You could just say yes. (Laughter.)
ATTY GEN. HOLDER: Well, if there were a proceeding, something that was put in place, obviously we would coordinate and cooperate. But as I said, the election or the decision to do such a thing I will leave in your good hands.
REP. CONYERS: Okay. Now, could you let us know the reasoning involved in your recent decision to reverse course and oppose the release of detainee abuse photos, even after your department has promised the court they'd be released.
ATTY GEN. HOLDER: Well, I think the president consulted with the generals on the ground and made the determination that the release of those photos would endanger our troops. The concern was that the release of those photos could have a negative impact on the situation both in Iraq and in Afghanistan. And I think the president, as commander in chief, after talking to General Odierno, I think, in particular, thought that the posture that he has now put us in was the better one. We will have to argue that in court, and we're prepared to do that. But I think the president has made a decision that is consistent with the best interests of our troops.
REP. CONYERS: All right. Thank you so much.
Lamar Smith, our ranking member, we would invite him for any questions.
REP. SMITH: Thank you, Mr. Chairman.
Mr. Attorney General, you recently said that the administration would not bring terrorists into our country and release them. Do you consider individuals who were trained at terrorist training camps to be terrorists?
ATTY GEN. HOLDER: Well, I think you have to make individualized determinations about a particular person. That's what we're doing with regard to the 241 who are at Guantanamo now.
REP. SMITH: Right. If someone were trained at a terrorist training camp by a terrorist, say, in the use of weapons against civilians, would they be a terrorist?
ATTY GEN. HOLDER: It gets closer to the definition of a person I would agree would be a terrorist. But again, you have to look at the totality of who the person is, what kind of training the person received, whether in making these determinations where that person was intent on using that terrorist training, what country perhaps.
REP. SMITH: If the Treasury Department and the United Nations designated an organization to be a terrorist organization, would you consider members of that organization to be terrorists?
ATTY GEN. HOLDER: Again, it would depend on the connection that that person had to the organization. If that person is a leader, obviously --
REP. SMITH: So someone could be trained as a terrorist, trained in all the capabilities of a terrorist, and yet the administration might not consider them to be a terrorist?
ATTY GEN. HOLDER: I'm not saying that. What I'm saying is that I would want to look at specifics. I mean, you're throwing hypotheticals at me, and I'm not sure I can respond to that as well as if I had in front of me a file, like (we're ?) putting together on the Guantanamo detainees, and I could look at a file of somebody and tell you whether or not that person was in fact a terrorist.
REP. SMITH: But their membership in a terrorist organization, therefore, is not enough to satisfy the administration that they're terrorists?
ATTY GEN. HOLDER: Well, I certainly think that would be an indication, a marker that that person is likely to be considered a terrorist.
REP. SMITH: But that alone would not be enough if they were just members of a terrorist organization?
ATTY GEN. HOLDER: Well, one of the great justices of the Supreme Court was a member of the Ku Klux Klan at one point. And you know, a mere organization doesn't always necessarily take you to a conclusion. I think we have to be thoughtful. We have to be careful. We have to be complete in the examinations that we do to make sure that we're going to label somebody as a terrorist and then treat them accordingly.
REP. SMITH: Maybe we just have to disagree. I think someone who has been trained at a terrorist training camp by terrorists, has been trained in the use of weapons against innocent civilians, I consider to be a terrorist, even if they haven't committed a terrorist act yet. But apparently, that wouldn't necessarily satisfy the administration?
ATTY GEN. HOLDER: Given all the facts that you've now laid out as opposed to going through each one separately, I think we would agree with what you just said.
REP. SMITH: Okay. Good, because I thought I had asked that just a minute ago, but I'm glad you agree. What if the FBI and the Homeland Security had expressed concerns about the release of individuals at Guantanamo Bay? Would that be persuasive to the administration not to release those individuals?
ATTY GEN. HOLDER: Those would certainly be factors that we would take into account. But understand that in making determinations about the release, transfer of the people at Guantanamo, the thing that's going to guide this administration more than anything is the safety of the American people. We're not going to do anything -- anything -- that would put the American people at risk. Nothing.
REP. SMITH: Right. Although the president has said that he can't guarantee that the people who might be released might not kill Americans.
ATTY GEN. HOLDER: Well, we'll go through those files, and the determinations that we make will be based on what we see in the files and the predictions that we can make about their future behavior.
REP. SMITH: Let me go back to the previous question because I was glad to hear you say that those individuals who have been trained at terrorist training camps by terrorists, perhaps in the use of weapons against innocent civilians, would-be terrorists.
Because that's exactly what I understand the Uighurs, would apply to the Uighurs, and that's how they had been trained. And yet the administration is considering releasing the Uighurs. Is that the case, or is that contradictory?
ATTY GEN. HOLDER: The determination has been made by a court of the United States of America that the Uighurs have to be released. That is not a question for this administration to decide. The courts of the United States have looked at that and made that determination. The Uighurs are -- you know the Bush administration approved the release of the Uighurs I guess back in 2003. So again, this is not this administration making the determination that the Uighurs --
REP. SMITH: But if any of those individuals fit the definition of "terrorist" that you just agreed to, I presume that the administration would object to their being released?
ATTY GEN. HOLDER: Well, in terms of release we don't have a choice. They have to be released unless you would ask us to defy an order from the United States court.
REP. SMITH: Well, either that or you could provide additional information on their background or training that might persuade a court not to release them. I'm going to sneak in one more question if I may, Mr. Attorney General. Recently you were --
ATTY GEN. HOLDER: Again, just before, the Bush administration approved the release of both of these folks back in 2003. So again it's not this administration. It is the courts, the prior administration that has made a determination that the Uighurs have to be released. It is not this administration.
REP. SMITH: Okay, and again I won't repeat it, but I liked your definition of a terrorist that you and I just agreed to because I think that might be applicable.
You traveled in Europe the week before last I believe and asked countries to take individuals who are now incarcerated at Guantanamo Bay, and I assume that you provided those governments with information about those detainees. Don't you think that the American people deserve to have that same information about those detainees that you provided to foreign countries?
ATTY GEN. HOLDER: My trip was not as you say. I went and spoke to our allies and talked about the need for a unified approach to closing Guantanamo. We did not have any specific conversations about numbers of people they would take and specific detainees. That conversation was very general --
REP. SMITH: I'll take your word for it, but that does contradict what the heads of state said that you asked them for.
ATTY GEN. HOLDER: No, not heads of state. There was a report that I read about somebody who said that I had a, I asked Germany to take 10 people or something like that. That conversation never happened.
REP. SMITH: Did not occur.
ATTY GEN. HOLDER: Did not occur.
REP. SMITH: Okay.
Thank you, Mr. Chairman.
REP. CONYERS: Thank you.
Chairman of the Constitution subcommittee, Jerry Nadler.
REP. JERROLD NADLER (D-NY): Thank you, Mr. Chairman.
Mr. Attorney General, in January of last year John Durham, a career Justice Department prosecutor, was appointed by then Attorney General Mukasey to investigate the destruction of videotapes of CIA interrogations. At that time we asked that the underlying conduct whether U.S. interrogations of detainees complied with or violated the law also be investigated. That request was denied by Attorney General Mukasey. As you know, we recently renewed our request with your predecessor Maurice -- (inaudible) -- for appointment of a special counsel to investigate who is responsible for the torture of detainees and to hold accountable those who may have violated the law.
We continue to believe that appointing a special counsel is not only mandated by the law because the law says that where torture occurred under U.S. jurisdiction which is undeniable there must be an investigation, and if warranted prosecutions if warranted. And where there's a possible conflict of interest, there should be a special counsel. And all those conditions seem to be met.
But we continue to believe that appointing a special counsel removes any claim that political considerations inappropriately influenced prosecutorial decisions and may be the only way to remove this as a major distraction.
My first question is, what's the status of Mr. Durham's investigation? And when can we expect a report on that to be completed, and will the conclusions be shared with us?
ATTY GEN. HOLDER: I'm a little reluctant to talk about an end. I know that Mr. Durham is still at work. He's still investigating. He spoke to the deputy attorney general I believe a couple of weeks or so ago, and we had an update on his work. And he is still proceeding with his investigation.
REP. NADLER: And, but you have no estimate as to when we might have some sort of conclusion?
ATTY GEN. HOLDER: I don't at this point. He laid out for us certainly what he's going to be doing over the next two to three months or so.
REP. NADLER: Okay.
ATTY GEN. HOLDER: But I don't have a sense of -- yet. I can't say with any degree of certainty when he's going to be finished.
REP. NADLER: All right. And let me ask you this. Given that Mr. Durham has a team of lawyers and investigators who already have been cleared to review classified and sensitive information and are deep into this issue, would you think it might be a good idea to expand the jurisdiction to investigation of actual interrogation policy and practice and to ensure that his status is that of special counsel subject to the guidelines in your regulations?
ATTY GEN. HOLDER: Well, I think that the decision first has to be whether or not that is appropriate. And as I've indicated, no one is above the law. We will look at the facts, we will look at the evidence and make the determination that is appropriate given the information that we have in the Justice Department in making that ultimate determination.
REP NADLER: Okay. In the recent press conference, President Obama agreed that the state secrets privilege should be modified and that, quote, "right now it's over-broad," close quote. You have directed your department to determine when it's legally appropriate to assert the privilege. Could we agree that unless the case involves the actual parties to a secret espionage agreement, like a spy suing the U.S. for failure to pay for services or something like that, which was an actual case a number of decades ago, that that aside it is never appropriate to raise the privilege to foreclose litigation altogether from the outset based on a claim that the entire subject matter is a secret, and instead that the privilege should be asserted as an evidentiary privilege on an item-by-item basis?
ATTY GEN. HOLDER: What I've asked to be done, and it's almost complete, is for a review to be done of those cases where we have invoked the privilege to find out what was the basis for it, could we have done it in a more surgical way so that the case need not be dismissed but perhaps could have used it in the way you described as an evidentiary one. And in addition to that, we are working on a proposal about how we think we might modify the way in which the privilege is used by the Executive branch. And once those two things are put together, it would be my hope to share that with this committee to try to work on a solution to dealing with --
REP. NADLER: You realize that there's legislation pending before this committee --
ATTY GEN. HOLDER: Yes.
REP. NADLER: -- which I'm sure you've looked at.
ATTY GEN. HOLDER: I understand that, and so I would hope that in connection with that legislation, the other legislation, the other side, that we could consider our proposal as well.
REP. NADLER: Thank you. In your testimony you noted the recent conviction of Mr. al-Marri. And I applaud the administration for bringing him to justice in our courts. As a result however, the administration also avoided Supreme Court review of a critical question, as the Bush administration did in a similar situation, the Padilla case. And the question is, does the president have the authority as the Bush administration claimed he did, to detain individuals indefinitely without charge?
Now I have two questions. Do you believe that the president has this power --
ATTY GEN. HOLDER: To detain people indefinitely --
REP. NADLER: Indefinitely without charge. The Bush administration called it "enemy combatants." Nobody calls it that anymore, but the claim of right was made that the president, under exigencies of Article II powers or AUMF powers has the right to detain people even in the United States, American citizens or otherwise, indefinitely without charge if he thinks they are what he calls an "enemy combatant."
ATTY GEN. HOLDER: We have a fundamentally different view than the Bush administration did about the Article II powers that the president has. There are certain powers that I guess the commander in chief has with regard to detaining people under the laws of war, but the notion that a president, in an unfettered way, not tied to some law, has that ability, is not something that we agree with.
REP. NADLER: So you would agree then that anyone held ultimately has to come to some sort of a trial or proceeding of a judicial nature?
ATTY GEN. HOLDER: Well, as I said, with regard to the laws of war it has been traditional that people are held for the length, for the duration of the conflict.
REP. NADLER: It's been traditional that people who are captured on the battlefield under arms are labeled prisoners of war and are kept. But picking up someone in Peoria, Illinois, and saying, "We have secret intelligence that he is an agent of al Qaeda," would you agree that any such person must have a judicial recourse?
ATTY GEN. HOLDER: Well, that's what we're trying to do with regard to the people at Guantanamo, to determine which of those people can be released, who can be tried. It is not the position of this distraction that we want to hold people for indefinite periods of time.
REP. NADLER: But I'm asking a more specific question. I understand the benevolent intent of this administration, and I not mean that sarcastically. I'm asking whether you think the president or the executive branch has the authority to hold someone indefinitely without judicial recourse.
ATTY GEN. HOLDER: And I thought I answered it. Without being tied to some statute, some international agreement, some custom in the way in which this nation has always conducted itself, I do not believe the president has that power. It has to be tied to something.
REP. NADLER: Thank you.
REP. CONYERS: The patient distinguished chairman emeritus of the committee Jim Sensenbrenner.
REP. JAMES SENSENBRENNER (R-WI): Thank you very much, Mr. Chairman. After hearing that I was tempted to take the gentleman's words down, but I won't. Mr. Attorney General, thank you very much for coming, and welcome here.
As you know, I was the chairman of the committee after 9/11 and spearheaded the effort to tear down the wall that separated intelligence and law enforcement and updated our laws so that intelligence officials have the same tools to combat terrorism as law enforcement has had for a number of years to combat drug dealers and child pornographers.
The USA Patriot Act was passed with wide bipartisan support, and over three years ago I again spearheaded the effort to reauthorize the Patriot Act, a law which the FBI director and other intelligence professionals have all testified has helped save lives and to protect our homeland.
I am a cosponsor of the legislation introduced by Ranking Member Smith to extend the three expiring provisions of the law crucial to our intelligence professionals. I know you've been the attorney general for only a very short period of time, but long enough to set departmental policy. The clock is ticking on this legislative session of Congress, and those expiring provisions will disappear on December 31 unless affirmatively extended before that time.
When will you submit to Congress the administration's proposal for the reauthorization of the Patriot Act?
ATTY GEN. HOLDER: Well, we want to look at those three provisions. They are I think important provisions and can be used I think effectively in the fight against terrorism. I want to see how they have been used, have a better sense of what the field experience has been with those provisions before we make a determination. I expect that we will support the reauthorization, but I really would like to just have some more empirical information about the way in which they have been used and their effectiveness. And it's possible there may be changes that we would suggest and want to work with the committee about with regard to those three provisions.
REP. SENSENBRENNER: Well, the concern that I have is, one of those three provisions is the so-called "lone wolf terrorist" provision. And that was passed specifically to plug the hole in the conspiracy laws which had been effective in dealing not only with terrorist conspiracies but conspiracies that violate other laws and the civil liberties of American citizens. And if there is a gap in that, that means that one individual might be able to slip through the net and not be indicted before actually committing a crime and placing maybe thousands of people at risk.
Can you give me a commitment of a deadline on when the administration will submit its recommendations relative to the three expiring provisions?
ATTY GEN. HOLDER: Yeah. We will certainly express our views with sufficient time to allow for debate, conversation, potential for modifying them, well before they expire I guess at the end of December.
REP. SENSENBRENNER: Well, I point out that according to the schedule that the majority party has released, we are supposed to adjourn this session of Congress, sine and dine, by the end of October. And that gives us effectively four session months to have a bill introduced, go through the hearings, have both houses pass the legislation if it needs to be conferenced to have that happen, and to send it off to the president for his consideration. That is not a lot of time, particularly given the very ambitious schedule that the Democratic leadership has announced for July and the fact that we have to deal with appropriations.
I would really strongly urge you to step on the accelerator on this because I just don't want to see us leave town and leave the American public end up wanting in terms of the importance of I believe all three of these measures, but particularly the lone wolf terrorist provision.
ATTY GEN. HOLDER: Yeah. I'm confident that we can do this in such a way that we'll meet all the deadlines even given the limited amount of time that you indicate. I mean these are obviously very important provisions. They need to be considered in a very serious way, and I think we need to take the appropriate action. I don't want to take anything, any tools, away from the very capable men and women who defend this nation. And with that in mind, we will be forwarding our views to Congress as I said as quickly as I can.
REP. SENSENBRENNER: Thank you, General.
REP. CONYERS: Thank you.
The chairman of the Crime Subcommittee, Bobby Scott of Virginia.
REP. BOBBY SCOTT (D-VA): Thank you, and thank you, Mr. Attorney General, for joining us today.
In 1963, after the march on -- there was a march on Washington, one result of which was a policy that there'd be no discrimination in federal contracts. And that was followed, pursuant to President Johnson's 1965 executive order, for decades.
Now, do you support the ability of those hiring people with federal money to deny jobs to people solely based on religion? And if so, what would you tell a devoutly religious businessman why he can't discriminate with his own money?
ATTY GEN. HOLDER: Why he can't discriminate?
REP. SCOTT: A devoutly religious businessman cannot discriminate in hiring with his own money, okay? How, then, can we --
(Aside.) Say again? (Response off mike.)
Why he cannot discriminate with his own money, under federal law. How can we, therefore, have a policy allowing people with federal money -- hiring people and denying opportunity -- solely based on religion? Do you support the idea that we should allow discrimination to take place in federal contracts?
ATTY GEN. HOLDER: No. I think that we want to have federal contracting done on a basis of ability, need, and without respect to religion, race, gender, sexual orientation. That's the kind of America that I think this administration wants to have.
REP. SCOTT: Thank you.
Mandatory minimums have been studied in sentencing, and they have been found often to violate common sense, generally waste the taxpayers' money.
In dealing with the 100-to-one crack/powder disparity, there's a consensus that something has to be done.
Will your recommendations on the crack/powder cocaine disparity consider eliminating mandatory minimums altogether in those cases and allow sentences to make sense in each case, especially since the mandatory minimums are now based on the total weight of the whole conspiracy, creating the girlfriend problem where if a girlfriend takes the message or drives the car, technically involved in the conspiracy, her sentence is based on the weight of the entire conspiracy, resulting in girlfriends getting sentenced to 10, 20, 30 years or more?
Will you consider eliminating the mandatory minimums in the crack/powder recommendations?
ATTY GEN. HOLDER: I've asked the attorney -- the deputy attorney general to head up a task force that's looking at federal sentencing laws to come up with a way in which we make them more equitable, we make them more effective.
The head of our Criminal Division, Lanny Breuer, testified on behalf of the administration and the Justice Department of my strong belief, and the president's, that we need to do away with the disparity that exists between crack and powder sentencing.
And so I think that we want to take all of that together, and especially see what David Ogden, who's the deputy attorney general, comes up with, with regard to his look at sentencing, that task force, and see how useful are mandatory minimums. Are there places where they need to be dialed back?
That is all for us on the table.
REP. SCOTT: Thank you.
In terms of financial crimes -- ID theft, organized retail theft and, of course, the mortgage fraud and other financial fraud, we had testimony that FBI agents only had 250 agents with accounting backgrounds assigned to these cases.
The savings and loan crisis, which was about one-third the size of this problem, they had about 1,000.
Do you have sufficient money to investigate and prosecute financial crimes and, if not, will you let us know what your needs are?
ATTY GEN. HOLDER: Yeah. One of the things that I told the president was that -- the Department that I'd come back to is different from the one that I left.
There is a national security component to the Department of Justice that is much larger than existed when I left. And I think that's totally justified; we don't want to do anything to harm that effort.
But I also think that what I call the traditional parts of the Department, and among them the part that you describe, this notion of looking at financial crimes, has not gotten the attention and the resources that are necessary.
In the 2010 budget, we have greater amounts of money to allow us to hire more agents and more prosecutors in that field, with regard to financial crimes.
REP. SCOTT: And finally, under torture, we've heard in the public discourse that it worked; we were scared; we were following orders -- which, frankly, might have been illegal.
We know from after World War II that we tried and prosecuted as capital offenses Japanese soldiers that tortured American soldiers, and we prosecuted them as capital offenses.
If detainees were tortured to death, is it possible that no one committed a crime?
ATTY GEN. HOLDER: If somebody were tortured to death, clearly a crime would have occurred.
REP. CONYERS: Thank you.
The chair recognizes Howard Coble, senior member of the Judiciary Committee. North Carolina.
REP. HOWARD COBLE (R-NC): Thank you, Mr. Chairman.
Mr. Attorney General, good to have you with us.
Mr. Attorney General, as recently reported, President Obama's intelligence chief confirmed that some Guantanamo inmates may be released on U.S. soil and receive assistance to return to society.
And I'm quoting now: "If we are to release them in the United States, we'd need some sort of assistance for them to start a new life, said National Intelligence Director Dennis Blair at his first press conference."
General, would the administration allow or -- and/or encourage the use of taxpayer money to be used to provide welfare or social assistance to detainees released from Guantanamo?
ATTY GEN. HOLDER: No final decision has been made with regard to what is going to happen to those 241 people who are in Guantanamo, those who would be eligible for release or transfer.
No final decision's been made as to where they would go or how they would be treated. So that is not an issue that we have yet confronted.
We're still in the process of trying to make the determination about who's going to be prosecuted, who is eligible for transfer or release. That is the focus of our attention, at this point.
REP. COBLE: Well, I don't want to be portrayed as an inflexible redneck coot, but I believe this would be reckless fiscal exercise, to provide assistance to that end.
Let me shift, Mr. Attorney General, to the domestic side, and I want to continue what Mr. Scott said regarding the retail crime -- and it is indeed a problem, as you know.
I'm told that the FBI has participated in several successful prosecutions of several organized retail crime rings in North Carolina. And this, as you know, is strongly supported by our retail community.
And to the -- to continue your response to Mr. Scott, do you all have the wherewithal -- that is, the operation and the financial -- to make this a front-burner issue?
ATTY GEN. HOLDER: I think that what we have in the 2010 budget is a down payment on restoring, to the extent that I think it needs to be restored, the capability of the FBI in that regard.
I think that we are capable. I think we can be more capable, and I think with the resources that we're getting next year, I think in out-budget years that we'll be at a place where I think we'll have the capacity that I think we need to deal with those issues.
And we are also in the process of working through a proposal that we'll be sharing with the country about what we want to do, I think really generally, with regard to financial crimes.
REP. COBLE: Well, the loss that retail merchants are incurring, as you know, is substantial.
Let me shift back to terrorism.
Recent press reports indicate that the administration is currently considering releasing Shaqa al-Mair (ph). Now, according to one report, and I'm quoting again, British authorities are demanding the release of this guy. He's a bin Laden confidante who trained aspiring terrorists at al Qaeda camps, met with the shoe bomber, Richard Reid, and traveled widely in the United States, meeting with embedded terrorists and sharing an apartment with Zacarias Moussaoui, who was convicted in '06, you recall, for his complicity in the 9/11 plot.
Do you know if these assertions are accurate that I've just quoted, Mr. Attorney General?
ATTY GEN. HOLDER: Congressman, I'll be honest with you. I do not -- I'm not familiar with that name and that case. I just -- I'm not in a position to answer that question, but --
REP. COBLE: Well, if you will, put that name in the front of your head for future reference, because I don't see how this guy could not be classified as a terrorist.
ATTY GEN. HOLDER: I'll certainly do that, but I would also emphasize that in this review of the people at Guantanamo, the guiding principle is the safety of the American people.
And we are not going to release anybody, transfer anybody, who would pose a danger to the American people. That is simply not going to happen.
But I'm not familiar with the name of that person.
REP. COBLE: I thank you for being with us, Mr. Attorney General.
Mr. Chairman, I want you to note that I'm -- Mr. Chairman?
Mr. Chairman, I want you to note that I am beating the red light before it illuminates.
REP. CONYERS: Well, that's never happened before here, sir. (Laughter.)
REP. COBLE: (Laughs.) I yield back.
REP. CONYERS: Thank you.
The chair recognizes another member from North Carolina, the distinguished gentleman, Mel Watt, who serves on the Finance Committee as a subcommittee chairman as well as a senior member of this Committee.
REP. MEL WATT (D-NC): Welcome, Mr. Attorney General. I'm a little reluctant to follow somebody who characterizes themselves as a -- what did he -- what did Howard Coble call himself?
(Response off mike.)
Not a redneck coot.
REP. COBLE: Not a redneck -- (off mike).
REP. WATT: Okay. Well, all right.
REP. COBLE: Not an inflexible --
REP. WATT: Not an inflexible redneck coot. (Laughter.) Just a regular redneck coot. (Laughter.) (Chuckles.)
REP. COBLE: (Off mike.) (Laughter.)
REP WATT: Mr. Attorney General, let me follow up on Representative Scott's question about this crack/powder disparity first, just long enough to find out when you anticipate that your task force will be completing its work and reporting to you, and when you will be able to report or make a public position known on that.
That's an issue, of course, that has been hot and heavy, as you are well aware, in minority communities because of the substantial disparity between crack and powder sentencing.
Can you give us the timetable?
ATTY GEN. HOLDER: Yeah. I would think the task force will be something that will take months to do a complete job, but we have already indicated our desire to eliminate that disparity between crack and powder sentences.
Lanny Breuer, as I said, testified about that at a hearing, I think last week or perhaps the week before.
And so there are -- there will be other things that we look at, but this administration has made the determination that our -- it is our belief that we have to eliminate the disparity with regard to crack and powder sentencing.
REP. WATT: The problem with that, of course, is that once you -- once you make that public pronouncement and then at the same time you say you have a task force looking at it, then it becomes an excuse for people not to do anything until the task force comes back and makes some affirmative recommendations.
Would you support following prior -- at least for the -- in the interim following prior sentencing commission recommendations regarding at least reducing, if not completely eliminating, the disparity?
ATTY GEN. HOLDER: I guess what I'd want to do is make these changes in their totality. And the concern I would have about reducing as opposed to eliminating the disparity is that we might get stuck at that point.
REP. WATT: Yeah. Well, I'm in full accord with you. But that creates a pretty strong imperative to push the task force to move in a quick and timely fashion, because in the interim between now and then, people are still being sentenced under the guidelines that were in existence, and there is a substantial disparity that continues to exist.
I don't want to -- that really wasn't my primarily line of questioning.
ATTY GEN. HOLDER: I don't disagree with you.
REP. WATT: Yeah.
ATTY GEN. HOLDER: This is a priority for me.
REP. WATT: Yeah.
ATTY GEN. HOLDER: And we want to try to get this done as quickly as we can.
REP. WATT: Yeah.
Let me go off on a subject that the chair laid the foundation for, because I do serve on Financial Services and on Judiciary and last term of Congress actually chaired the Oversight Subcommittee on Financial Services and got a lot of public comment about, who caused this meltdown and all this criminal activity that went on and when are you going to have a set of hearings about -- in the Oversight Subcommittee -- about how this occurred?
I think there is a strong belief that something aggressive needs to be done to investigate and prosecute people who were part and parcel of creating the financial meltdown, creating the credit crisis that we are in. And while the Madoff case is a big public case, it is a separate kind of thing than the meltdown itself, although it was characteristic of what was going on in other elements of the financial services industry. I guess what I'm more interested in is having some assessment of the number of cases that your department is pursuing on an ongoing basis, because the last administration basically devoted all of its resources to the terrorism front. We're not being critical of that, but virtually no resources were devoted to this, even though it was happening and playing itself out on their watch.
Could we commit you to just give us regular updates on the number of cases -- I know you can't talk about the details of each case -- but the kinds of cases that you are pursuing going forward?
ATTY GEN. HOLDER: No, that's fine. I think that's a perfectly legitimate oversight question. I know that, for instance, the FBI has under investigation now -- I might be transposing the numbers -- either 1,200 or 2,100 mortgage fraud cases. And that's the kind of information that we can share. And I will clear that up once I've had a chance to look at our materials as to what that exact number is.
But with regard to the kinds of cases that we are looking at and the numbers of those cases, I'd be more than glad to share that information with the committee.
REP. WATT: Mr. Chair, let me just make one other entreat to make sure -- when you say "mortgage fraud" -- a lot of the attention has gone to the people who are the borrowers and their fraud in the process. That is a legitimate concern. But I want to make sure that your mortgage fraud universe includes the people who were fraudulently engaging in misconduct on the other side, also.
ATTY GEN. HOLDER: The focus of the FBI efforts, when I talk about that 2,100 or 1,200, is really on the lenders, people who have done things in a fraudulent way with regard to lending money, as opposed to those who might have done other things in trying to receive money.
REP. WATT: Thank you, Mr. Chairman, for your indulgence. I yield back.
REP. CONYERS: The chair recognizes Bob Goodlatte, Virginia, senior member, former chairman of Agriculture Committee.
REPRESENTATIVE BOB GOODLATTE (R-VA): Thank you, Mr. Chairman.
And welcome, Attorney General Holder. I'd like to ask you about the issue of the use of foreign court precedents in decisions in our federal court system -- of particular concern is with the Supreme Court. You may be aware that before he joined the Department of Justice, Deputy Attorney General Ogden represented the defendant in the landmark case of Roper versus Simmons, which ultimately held that the death penalty could not be used as punishment for criminals under the age of 18. In the brief filed by Ogden and others, he asserted that almost without exception the other nations of the world would have rejected capital punishment of those under 18.
As the top-ranking law enforcement official in the United States charged with upholding and defending the Constitution and advising the president of the legality of his actions, do you agree with Ogden that the Supreme Court should rely on the opinions of other nations when interpreting the U.S. Constitution? And will you rely on the opinions of foreign nations and foreign bureaucratic tribunals when advising the president on the meaning of Constitutional provisions?
ATTY GEN. HOLDER: Well, I think there were at least -- I don't remember what the number was in that case, but at least a couple, I believe, of the justices who I wouldn't say necessarily relied on, but certainly referred to --
REP. GOODLATTE: They cited it in their opinion.
ATTY GEN. HOLDER: -- but certainly referred to --
REP. GOODLATTE: You're correct.
ATTY GEN. HOLDER: -- the -- what -- the state of the law in other countries. And, you know, it seems to me that taking into account what's going on in other countries is not necessarily a bad thing. I think we have to obviously rely on --
REP. GOODLATTE: Well, in looking to the meaning of the Constitution, though, how could you look to the constitutions or laws and interpretations of those laws by justices in other countries to find meaning in the U.S. Constitution?
ATTY GEN. HOLDER: Well, that's what I was going to say. But with regard to making determinations about what the state of the law in this country should be, the primary focus, the first place we go is the Constitution of the United States and the laws that you all -- members of Congress have passed over the years. The notion of looking at foreign law, foreign customs is something that I think can perhaps, in some ways, be useful, but can't be the primary focus for any kind of determination.
REP. GOODLATTE: I know a number of the justices expressed some concern about that trend of citing foreign court precedence as well. But would you ever approve a Justice Department pleading that asked a court to rely on foreign laws and precedents in interpreting a provision in the United States Constitution?
ATTY GEN. HOLDER: It's hard to say -- to answer that question in a vacuum. It would depend, I suppose, on the case. Again, my focus always would be on: What does the Constitution say? What do our laws say? What do we glean from the way in which this nation has dealt with that issue?
It may be that there is something about the way in which another country has done something --
REP. GOODLATTE: But wouldn't it undercut the legislative authority of the United States Congress and the actions of our executive branch and the appropriateness of the judicial decision- making process to turn to the precedents of another country in telling our Supreme Court or a lesser court how to interpret our Constitution?
ATTY GEN. HOLDER: Yeah, I -- again, I wouldn't look towards foreign law to tell or ask the Supreme Court that this is how you should interpret our Constitution based on what some other country has done. The primary focus has to be on what our Constitution says, how that Constitution has been interpreted, stare decisis, court opinions, what Congress has done. Those are the things, I think, that we have to focus on, and that has to be the primary emphasis for any position that the department would take.
REP. GOODLATTE: Well, thank you. I'd encourage you to take a strong stand on that.
Let me move to another subject. As you may know, the Judiciary Committee has commissioned a task force to investigate the potential impeachment of Judge Thomas Porteous of the Eastern District of Louisiana. The gentleman from California, Mr. Schiff, is the chairman of that task force. I'm the ranking minority member. Do we have your commitment to work with us in a timely fashion to investigate this matter?
ATTY GEN. HOLDER: Yes. We will -- there are documents, I understand, that are contained, I think, in the criminal division of the Department of Justice and we will work with you to make materials available so that you can do the duties that are incumbent upon you. We'll do that.
REP. GOODLATTE: Well, thank you. We are working in a very bipartisan fashion on this and attempting to take it very seriously. And the cooperation of the Justice Department, which has investigated this situation, is very, very important to the process of our undertaking this task force and determining whether impeachment is an appropriate step.
And then lastly let me ask you about Section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which bars state and local governments from restricting their law enforcement officers from communicating with the Department of Homeland Security about the immigration status of individuals. Despite this law, many so-called "sanctuary cities" continue to prohibit law enforcement from checking the immigration status of criminal aliens that they encounter. The results can be tragic. There have been many reported cases where the immigration status of criminal aliens was not checked because of sanctuary policies and they were released back into society to murder American citizens.
If this administration -- is the administration committed to enforcing Section 642 and stopping cities from using these sanctuary policies to refuse to cooperate with law enforcement and the immigration services?
ATTY GEN. HOLDER: Well, I mean, I think we have to look at -- you know, the immigration problem's one I think we have to look at holistically. We have substantial numbers of people who are in this country on an undocumented basis because we've not come up with a policy that really deals with border security and then deals with what the status is of those people who are presently here.
REP. GOODLATTE: But we very definitely come up with a very clear policy on the requirement that communities cooperate with the Department of Homeland Security in their investigation of criminal aliens and their access to information so that they can determine, when somebody is charged with a crime, whether they should be subject to deportation from the country and other measures to protect society. And yet some cities are using their own internal policies to flout federal law that requires their cooperation with the Department of Homeland Security. And the question is whether the Justice Department will work to enforce Section 642 and stop cities from using these sanctuary policies when it comes to the issue of protecting citizens from criminal aliens.
ATTY GEN. HOLDER: I mean, the responsibility that I have as the chief law enforcement officer in this country -- and I'm very honored to have that position -- is to enforce all the laws that are on the books. And that is obviously what we will do. But I do think, as I said, that one has to look at this immigration problem in its -- in its totality. And I think that it's incumbent upon us, as a nation, to try to deal with all of the issues that make up the immigration issues that we --
REP. GOODLATTE: Well, I agree with you. We do need to address a variety of immigration issues. But would you commit to enforcing the law as it pertains to something that the Congress has already passed and spoken on and was signed into law by President Clinton to make sure that there is cooperation with law enforcement, to make sure that criminal aliens are not released back into communities to commit more crimes?
ATTY GEN. HOLDER: Well, as I said, as the chief law enforcement officer, I will be responsible for enforcing the laws, do what I can to ensure that federal laws are, in fact, enforced, use the resources that we have to do that.
REP. GOODLATTE: Thank you. I appreciate that answer.
Mr. Chairman, thank you very much.
REP. CONYERS: Zoe Lofgren, chairwoman of the Committee on Immigration.
REPRESENTATIVE ZOE LOFGREN (D-CA): Thank you, Mr. Chairman.
And it's good to see you, Mr. Attorney General. I would just note that I opposed the '96 reform -- or so-called reform of the Immigration Act. But 642 does not place an affirmative obligation on states and localities to enforce the immigration laws. There is a provision, however, I'd like to talk to you about -- 287-G -- which does allow localities, at their option, to enforce immigration laws. And that's within the Department of Homeland Security, but it involves your department because there have been a few problems.
And I'm aware that the department is investigating a sheriff in Arizona for civil rights -- alleged civil rights violations. We recently had a hearing in the subcommittee and heard a number of issues where Americans had been pulled over and harassed because of their ethnicity in an alleged immigration effort. What resources does the department need to make sure that serious civil rights violation allegations are pursued relative to this program?
ATTY GEN. HOLDER: Well, I think that the civil rights division is a division that needs additional resources. And in the 2010 budget, there is a pretty substantial increase in the amount of money that will flow to the civil rights division to deal with the issues that you have talked about.
The division has not gotten the attention that it has needed in the immediate past. There have been inspector general reports that have talked about the politicization of the division.
It is a place that I've spent a lot of time and a lot of energy, and have focused on it quite a bit, to make it the Civil Rights Division that, frankly, has existed under Republican as well as Democratic attorneys general, and I want to return that division to that -- to its proud history.
REP. LOFGREN: That's very good news.
I saw that the department had requested $14 million for an additional 28 immigration judge teams, and I'm glad that you have. I want to explore that further. We actually have one less judge today -- Immigration judge, than we had in the year 2002, at 224.
And we have just had a very substantial increase, as you know, in activity. In fact, immigration judges, on average, receive 334,000 items a year -- I mean, it was just stunning, up from 290 (thousand) in 2002; as compared to District Court judges, who get about 483 matters a year.
Not to say that they're equivalent but -- you know, in terms of complexity, but, I mean, it's way off the charts. And some of the chief judges -- well, the chief judge for the Second Circuit has said, really, that he thinks the number of judges -- Immigration judges probably needs to be doubled.
Are you planning series of requests to get the personnel up to -- the numbers up, so they can actually handle these cases and give proper attention to each matter?
ATTY GEN. HOLDER: Well, there has been a budget increase, as you indicated, but I think that's something that we'll have to look at and make a determination about whether additional resources are needed, but really be pretty cold and calculating in trying to determine the number of matters that these judges are handling.
These are, obviously, important matters and we want to make sure that they are not working in a way that is -- where they're overburdened. I mean, the numbers that you have cited are extremely striking, and it may be that in the next year's budget we will have to continue to give more resources to that area.
REP. LOFGREN: I would encourage you to do so. Unless there's a change in the volume, it's just important to pay attention to that many matters.
Along those lines, former Attorney General Ashcroft purged 10 members of the Board of Immigration Appeals and changed matters in the alleged "streamlining" effort, which resulted in an explosion of appeals to the circuit courts. The circuit courts are very unhappy about this, as I'm sure you're aware. They've just been swamped.
Are you going to revisit the Board of Immigration Appeals' so- called "streamlining" effort so that we can get proper attention made to these matters and relieve the circuit courts?
ATTY GEN. HOLDER: That's something that I want to look at.
It's interesting, my chief of staff is the person who used to run that part of the Department. And I think, in combination with him, and others who are familiar with the needs of that part of the Department, we want to make sure that they are adequately funded; that there are sufficient numbers of judges; and that they are allowed to do the kind of job that we want them to do. That will become -- (background noise, inaudible) --
REP. LOFGREN: Just before he left, Attorney General Mukasey advised -- you know, a January, 2009 decision that, contrary to a long history, that there was no Constitutional or statutory right to effective assistance of counsel in Immigration proceedings. It's a radical departure from the state of the law.
Now, I understand that you had indicated an interest in revisiting that policy when you were before the Senate during your confirmation process. However, I am advised that Campion (sp) is still being cited by your lawyers as -- in proceedings today, which is a problem, and we're going to end up with litigation around that.
And I'm wondering, number one, when we will have your decision? I'm assuming you will want to go back, stare decisis, and if, in the interim, we couldn't avoid future litigation by settling this with the Department's lawyers?
ATTY GEN. HOLDER: Well, as I indicated during my confirmation hearing, we are looking at the decision that was made by former Attorney General Mukasey. And I expect that, within a matter of -- in a very, very short time, I will be issuing the decision that I have made with regard to what we ought to be doing in that regard.
We have completed -- we have completed our review and now we're just working on a release that I'll be --
REP. LOFGREN: All right.
ATTY GEN. HOLDER: -- making very shortly.
REP. LOFGREN: I have sent you two letters. I won't go through them here today.
One has to do the situation in Postville, in light of the unanimous Supreme Court decision relative to the identity theft issue. The other is a letter signed by a number of us in the House on the Wilberforce Act, and the efforts that will be necessary to fully implement that Act.
And, rather than go through them, I'm just hopeful that we can get a positive and -- a response in the near future. They've just been sent recently. I'm not complaining about the length of time, but I'm eager to hear back from you.
ATTY GEN. HOLDER: I'll try to make sure that we get a response to you as quickly as I can.
REP. LOFGREN: Thank you very much.
And, thank you, Mr. Chairman.
REP. CONYERS: (Off mike.)
The gentleman from Ohio --
REP. STEVE KING (R-IA): Iowa.
REP. CONYERS: -- Iowa, Steve King.
REP. KING: Thank you, Mr. Chairman.
And I thank you, Attorney General Holder, for testifying before this committee today. And I know that there were a lot of people on this panel looking forward to this, but I would have wondered if you were actually looking forward to it.
But, I would like to first raise the issue -- I have in my hands two letters that have been sent to you by Senator Sessions of Alabama, one dated April 2nd of this year, and the other one May 4th of this year, where he enquires as to your position on, especially the Uighurs, the 17 Uighurs that had been brought up.
He makes the point that in the case -- the District of Columbia Circuit held in the case of Kiyemba v. Obama, and that is a 2009 case, that federal courts lack the Constitutional authority to order the release of the Uighur detainees into the United States. And that it also held that the power to order an alien held overseas, and brought into the sovereign territory of a nation, and released into the general population, has never existed. And so, with regard to the 2003 case, this appears to overturn that 2003 case and put this back in -- I'll say, your responsibility on the Uighurs.
So, I would ask you if you're prepared to respond to these letters today, or if you'd like to comment on these unanswered letters from Senator Sessions?
ATTY GEN. HOLDER: I know I have signed or approved a response to at least one of the letters that Senator Sessions has sent to me. I'm not sure if it's one of those two.
But, I know that with regard -- he's right, with regard to the Kiyemba case. The court said that there was not a basis for the Judiciary to order the Executive Branch to release people into the United States.
By the same token, there are -- there is court order that requires that either all, or 17 of the Uighurs have to be released. They cannot be considered -- they cannot be held. And as I indicated, the Bush administration had made that decision that -- with regard to 17 of the Uighurs, they would not be treated, as they called them, as "enemy combatants."
REP. KING: Then within the confines of the definition that you've given, can you assure this committee that the Uighurs will not be released into the United States?
ATTY GEN. HOLDER: At this point we have not made any determinations, any final decisions as to what is going to happen with regard to any of the 241 people who are --
REP. KING: Do you believe you have the power, then, to waive the federal statute that prohibits them from being released into the United States, that's the subject of this litigation?
ATTY GEN. HOLDER: Well, Kiyemba, I think, really just says that the courts cannot order the Executive Branch to release people into the United States. I'm not sure the court went so far as to say that the Executive Branch did not have sufficient authority to bring people into the United States. And I'm not talking about the Uighurs --
REP. KING: But, I'm asking you if you believe you have the authority, then, to waive, and bring them into the United States -- the Uighurs an example, as an example?
ATTY GEN. HOLDER: I think in the letter that I -- I'm sure I -- I think I approved, that goes to Senator Sessions, that indicates that there is authority on -- the parole authority that is -- (I guess, ?) resides in the secretary for the Department of Homeland Security, that there is a basis there for bringing people into the United States --
REP. KING: But, the prohibiting statute would have to be waived. And we can go into the definition of that a little bit deeper perhaps in a less formal fashion.
I was interested in your testimony that you can look at the files of the 241 detainees and determine whether they are terrorists, and I would ask you then how quickly you might be able to review those files, and when that task is accomplished, will you announce then to the public how many of the 241 are terrorists? And is that something you expect that could happen within the next 30 to 60 days since we know the clock is ticking on the January 22nd executive order?
ATTY GEN. HOLDER: Believe me, I know better than anybody that the clock is ticking. (Laughter.)
You know, we use this term "terrorist" I think in a way that is kind of explosive. It's incendiary. Our focus is on whether or not these people are going to present a danger to the American people, and that is what guides us, not necessarily how they are labeled, though I think there is a value in making a determination.
REP. KING: I thank you, Attorney General. And just a quick question as the clock ticks down. There has been a significant amount of controversy across this country with regard to ACORN, and there have been at least investigations in at least 12 states, indictments that came down, not just against their employees but against ACORN itself, in Nevada in particular, I believe also in Pennsylvania, perhaps other states.
The hundreds of thousands of voter registration forms that are fraudulent, admittedly fraudulent by ACORN, and the roughly 8-plus billion dollars of federal tax dollars that are available to ACORN today in part as they go forward with more of the same, as near as we can tell, plus being named as an organization to assist in the United States Census.
Are you committed to those investigations and are you committed to reining in this organization that's been getting more and more federal funding, even though the evidence out there is that they can't be trusted with the integrity of the electoral process, let alone the census and the redistricting?
ATTY GEN. HOLDER: Well, I do not know the extent of any investigations that the department is doing into that organization. Clearly if there is an investigation ongoing I'll support that.
With regard to the running of the census, that is something that the Congress will have to do, but I'll try to get back to you with regard to whether or not -- if I can -- whether or not ACORN is under federal investigation. I don't know.
REP. KING: And I would thank you on that, and I just hope the chairman changes his mind on that again. And I'd yield back.
REP. CONYERS: Thank you. The chair recognizes Bill Delahunt --
REPRESENTATIVE WILLIAM DELAHUNT (D-MA): Thank you, Mr. Chairman.
REP. CONYERS: -- former Massachusetts prosecutor and Oversight Subcommittee chairman on Foreign Affairs.
REP. DELAHUNT: Welcome, Mr. Holder.
We've heard some references to the Uighurs this morning. I think it's important to define the Uighurs, and it's my understanding that it's a minority group that has existed in the past in the northeastern section of China. Is that your understanding a well?
ATTY GEN. HOLDER: Yeah, the Uighurs are from China, and the best indication we have so far as we look through their files is that they went to Afghanistan, not to take up arms against the United States -- and this is not to excuse that -- but to oppose the Chinese government.
REP. DELAHUNT: In fact, the truth is that they have been a suppressed and persecuted minority within China. Is that a fair statement?
ATTY GEN. HOLDER: That certainly, I think, is the view of the Uighur population. They feel they have not been treated fairly by the Chinese government.
REP. DELAHUNT: Have you come across reports that Uighurs have been tortured and actually killed and murdered in communist China?
ATTY GEN. HOLDER: Well, I have certainly seen reports that indicate the Uighurs have not been treated -- have not always been treated fairly or appropriately by the Chinese government.
REP. DELAHUNT: In fact, some make the analogy between the Tibetans and the Uighurs in terms of being persecuted for not just simply their political views but because of their religious beliefs. Is that a fair statement?
ATTY GEN. HOLDER: I have seen reports of that as well.
REP. DELAHUNT: Well, I would indicate to you that in fact it would appear to be the belief of the United States Congress, since there was a resolution that was passed, encouraging a change in attitude and behavior by the communist Chinese government towards the Uighurs. In the "whereas" clauses it listed and enumerated major human rights violations directed against the Uighurs.
I think it's important to understand who the Uighurs are. You indicated that it's not a threat to the United States. Now, I don't know if you can say the same thing -- maybe it's a threat to communist China. I don't know that.
I don't intend to waste my -- you know, spend my time defending the Chinese communist regime in Beijing that has a human rights record that at best can be described as abysmal. But what I am concerned about is the attitude of at least the previous administration.
The chairman indicated that I chair oversight on the Foreign Affairs Committee. My ranking member is my good friend and colleague, Mr. Rohrabacher. We have requested a visit to Guantanamo to actually interview the Uighurs, and this is with the understanding that we will have secured released to that effect.
The previous administration denied that request in our effort to secure the truth, and yet we discovered that it was the previous administration that allowed Chinese communist security agents to go to Guantanamo and interview the Uighurs. Is this a policy that you intend to continue?
ATTY GEN. HOLDER: Well, I'm not aware of any requests that any members of Congress have made to the Guantanamo -- and obviously we would look at that and make that determination. I'm also not aware of any representatives of foreign governments who have gone into the detention facility there. I'm just not aware of that.
REP. DELAHUNT: Well, I would, you know, respectfully request that you review that. I would like to have a report back to this committee, or at least to myself in my position as chair of Oversight on Foreign Affairs, as to the rationale and the basis for the reported visit by Chinese communist agents that were allowed to go to Guantanamo to interview Uighurs that were detained down there.
It is also my understanding that those that were detained there -- again, given the hostility that exists between the Uighurs community and the Chinese communist government, were told, were threatened and were intimidated. I think it's important that we get that information out into the larger context of the issue surrounding the Uighurs.
I just read recently where a former speaker of the House of Representatives, Mr. Gingrich, suggested that the Uighurs be returned to China. Can you tell me if that would be an appropriate initiative under our treaty obligations in the Convention Against Torture, because I would submit to you that undoubtedly they would be tortured and persecuted and most likely murdered if they were returned to communist China.
ATTY GEN. HOLDER: One of the things that we have to do in trying to make these transfer and release determinations is where these people can be released to. Your initial reaction is always to return them to their home country, and yet, as you indicate, one of the things that we have to take into consideration is how would they be treated were they to be returned to their home country.
I note that five Uighurs have already been released, I guess in 2006, and those people were placed in Albania, which perhaps reflects an indication on the part of the prior administration about the concerns that you raised. But it will not be the policy of this administration --
REP. DELAHUNT: And I would suggest, Mr. Attorney General, you contact the Albanian authorities and ask them what the response was from the communist Chinese government about the resettlement of those five Uighurs, whom, by the way, I understand are doing very well in Albania, one of whom just recently was granted political asylum in Sweden.
ATTY GEN. HOLDER: Right. Yeah, one thing I would say with regard to the Guantanamo question, that is a facility that is fun by the Department of Defense, and so in terms of access to Guantanamo, that is something that the secretary of Defense or his subordinates would control.
REP. DELAHUNT: I would respectfully request that you contact the Department of Defense on behalf of myself and Mr. Rohrabacher. We would like to visit and interview those people themselves. If the Chinese communist agents can interview detainees at Guantanamo, then members of the American Congress ought to. And I can see my friend from Texas, Mr. Poe, agreeing by shaking his head.
And with that I yield back.
REP. CONYERS: The distinguished gentleman from Virginia, Randy Forbes.
REPRESENTATIVE RANDY FORBES (R-VA): Thank you, Mr. Chairman.
Mr. Attorney General, thank you for being here today. I'd like to revisit the Guantanamo issue again. I've heard some of your responses today. And, as I understand it, you've mentioned that when you came over to the department you realized there was a larger national security component, I believe you said, than when you left.
One of the real issues is things changed quite a bit after 9/11, and when you are looking at some of the detainees, your department deals with a lot of knowledge and information. Some of that is evidence that is factually admissible in a court of law. There is a lot of other evidence that you have that are just bits and pieces and tidbits that help formulate your assessment of particular security risk.
The question for you is this: If you have a Guantanamo detainee and you determine from the information that's presented to you that an individual or group of individual detainees would, in your opinion, pose a threat to the United States based on the totality of information you have, but you do not have adequate admissible evidence to accuse them of a crime, and no other country will take them, will you release them into the United States?
ATTY GEN. HOLDER: We will not release anybody into the United States that we think would pose a danger to the American people. We'll go through a process to try to make the determination as to who can be released, who can be transferred, who can be tried in a variety of places, either an Article III court, the military courts, or perhaps the military commissions with the enhanced procedures that I've pretty consistently talked about.
And then there is the potential for a third category of people who, for whatever reason, cannot be tried but who we make the determination cannot be released because they pose a danger to this nation. With all kinds of due process protections, it's entirely possible that we could end up with people in that third category. But we don't know that yet. I mean, we're looking at --
REP. FORBES: But my question is simply this: You feel it would be appropriate and it would be your position that if you could make a determination, from the totality of evidence you had, even though that wasn't evidence that would be admissible in a court of law to prove a crime, that you felt one of those detainees or a group of those detainees could pose a risk to the United States, you would continue to detain them?
ATTY GEN. HOLDER: We are not going to do anything -- anything that will endanger the American people, and we will use all the tools that we have to keep them safe.
REP. FORBES: Mr. Attorney General, I just respect -- please understand, I respect and I'm asking this question the best I can, but can you just give me a yes or no, if you determine -- you determine and your department determines, from the totality of evidence that you have, that that individual would pose a risk to the United States, to residents in the United States, but you do not have adequate evidence to be admissible in a court of law to prove a crime do you believe it would be appropriate to continue to detain that individual?
ATTY GEN. HOLDER: I think that that possibility exists, and that's what I was trying to say, that there is that third category of people who, if there were sufficient -- a sufficient basis for us to conclude that they posed a danger to the American people, to the United States, we would not release those people.
REP. FORBES: So, again, would I be fair to say that you believe it would be appropriate, if you made that conclusion from the totality of evidence that you have, that that individual could pose a risk to the United States, that you would continue to detain that individual even though you did not have adequate admissible evidence to convict them of a crime?
ATTY GEN. HOLDER: If we have sufficient factual intelligence -- I don't know, whatever quantum of proof, however you want to describe it -- to believe that a person posed a danger to the United States, we will do all that we can to ensure that that person remains detained and does not become a danger to the American people.
REP. FORBES: And all you can do -- if you have the power to keep that person in detention and you conclude -- you conclude, beyond a reasonable doubt in your mind, from the totality of evidence that you have, that that individual poses a risk to the United States, can you definitively tell us that it would be your position that they should be detained and not released?
ATTY GEN. HOLDER: It is my definitive position that the American people will be protected. Somebody who poses a danger to the United States will not be released. I don't -- I mean, I'm answering your question. You asked directly and I'm giving you a direct answer.
REP. FORBES: It's a yes, though --
ATTY GEN. HOLDER: I'm telling you that people who pose a danger to the United States will not be released by this --
REP. FORBES: Okay, then they would not be released.
The second question I'd have for you as a follow up: Have you made, or your department made, an assessment of the potential risks to localities if we relocate individuals here and put them in detention in the United States.
ATTY GEN. HOLDER: We have not gone to that level of analysis because we've not made any determinations about where anybody is going to be placed. The focus of our emphasis at this point, three months into this administration, is to look at those 241 people and figure out who they are and then what categories they can go into.
REP. FORBES: But, Mr. Attorney General, with all due respect, you are going to close it in eight months, as I understand, and at this particular point in time there are a lot of counties that are saying, we don't want them. We don't have exactly a great venue to send them other places, so it looks like they're coming to the United States, at least some of them.
At this particular point in time we haven't even made an assessment of the potential risk that might be posed to a locality if we do relocate them here. Is that what you're saying?
ATTY GEN. HOLDER: What I'm saying is that before any kind of determination is made, whether a person is sent to France, Germany, all those kinds of information will be shared so that determinations can be made, assessments made. We would not foist upon anybody any country, any locality.
REP. FORBES: The only one I'm interested in is the United States, but at this particular point in time we have not made an assessment of the risk those localities would face in the United States -- that's what you're saying -- at this time.
ATTY GEN. HOLDER: At this point we have not made that kind of determination because we have not had an ability yet to decide exactly who is going to be going where.
REP. FORBES: Thank you, Mr. Chairman.
REP. CONYERS: The distinguished gentlelady from California, Los Angeles, Maxine Waters.
REPRESENTATIVE MAXINE WATERS (D-CA): Thank you so very much, Mr. Chairman. I really do appreciate this hearing today, and I'd like to welcome our new attorney general, Mr. Holder. And I first would like to thank him for the strong leadership that he has already demonstrated and taken this most important position in our government.
REP. CONYERS: The committee will come to order.
The chair recognizes Dan Lungren -- its only ex-attorney general --
REP. DAN LUNGREN (R-CA): (Laughs.) Thank you very much, Mr. Chairman, I appreciate --
REP. CONYERS: -- from California.
REP. LUNGREN: -- I appreciate that.
And, Mr. Attorney General, it's good to see you. I haven't seen you since Selma, Alabama --
ATTY GEN. HOLDER: It has been awhile. Good to see you.
REP. LUNGREN: -- so, thank you.
Also I appreciate the statement that you had -- page 7, when you talked about the Fraud Enforcement and Recovery Act, which had the language on money laundering that I authored; and also the False Claims Act, which I think should be a bipartisan approach -- starting with the Lincoln law, and then become the Reagan alteration of that when that was necessary, and now.
But, let me get into a couple other areas of serious concern of mine. One, following on the questions of Mr. Forbes, and I know what your statement is now, and I'm not going to ask you to reiterate that -- that you believe that you should take all action to ensure that those who pose a threat to the United States, who are now in Guantanamo, would not be released.
However, if we move them from Guantanamo and they come to the United States -- other countries not accepting them, for whatever reason they come to the United States, as you know, their being in the United States gives them an attachment to the Constitution they might not otherwise have, and, therefore, they have the full panoply -- or, arguably, they may have the full panoply of Constitutional rights.
That means that there is a conceivable scenario in which you would take the position, and the administration would take the position that people have -- that you have incarcerated in some state in the United States, having come from Guantanamo, that they are a clear and present danger to the United States, but, that would be subject to a federal court review -- and a federal court review, leading to a federal judge issuing an order that they be released.
Under those circumstances, isn't it correct, under the law, that you would have no recourse but to release them?
ATTY GEN. HOLDER: It would seem to me that -- there are a couple of things there, I think, that are kind of missing from the question. And the first is that, you know, we would work with Congress, I think, to come up with a scheme -- the means by which we would do anything with regard to the basis for the detention of these people.
REP. LUNGREN: You don't -- you don't disagree with my argument, though, that having them on U.S. soil at least gives them a stronger opportunity to argue that they have the full panoply of Constitutional rights, vis-a-vis not being held in the United States -- at least that's been the traditional view of the federal courts, correct?
ATTY GEN. HOLDER: Well, I think they can certainly argue that. But, I think if you also look at the way in which the courts have progressively dealt with the detainees at Guantanamo, the progression there was pretty obvious, that although they were not on American soil they were getting more and more rights given to them, starting with habeas, you know, in Hamdan --
REP. LUNGREN: Correct.
ATTY GEN. HOLDER: -- and cases like that.
REP. LUNGREN: But, we eliminate that by bringing them to the United States, correct?
ATTY GEN. HOLDER: We eliminate?
REP. LUNGREN: We eliminate any question by bringing them to the United States, as opposed to sitting in Guantanamo?
ATTY GEN. HOLDER: I'm not sure about that. I'm not sure.
REP. LUNGREN: Well, they certainly don't have a weakened position, do they?
ATTY GEN. HOLDER: There's an -- put it like this, there's --
REP. LUNGREN: Well, I mean --
ATTY GEN. HOLDER: -- there's certainly an argument a lawyer is going to be able to put in a brief, I suppose, yeah.
REP. LUNGREN: Okay.
So, you will make effort you can to make sure they're not released, but still you're subject to authority and direction of the United States courts, all the way up to the Supreme Court, correct?
ATTY GEN. HOLDER: Yeah, as is true now. I mean, you know, we have a District court -- or, I guess, we have a court decision now that has indicated, for instance -- as we were talking earlier, about the fact that the Uighurs have to be released.
REP. LUNGREN: Right. And so you make judgments as to whether or not appeals should be brought when you have things like that, correct?
ATTY GEN. HOLDER: Yeah. I mean, we certainly appealed the decision made by District court here -- I think, in the District of Columbia, that they had to be paroled, or had to be placed in the United States, and that resulted in the Kiyemba opinion.
REP. LUNGREN: Well, let me ask you this question, then. The president of the United States just made a determination -- I think it was today or yesterday, that he does not believe we ought to release pictures showing, presumably inappropriate activity by American personnel with respect to prisoners that we hold -- we have held at Guantanamo and other places.
And yet it's my understanding that is in response to an appellate court decision that you, or at least your department, had made a determination you would not appeal. Is that correct?
ATTY GEN. HOLDER: I think that what we had made the decision to do was -before the president had had the opportunity to sit down and have, I think, the in-depth conversations that he's obviously had with the field commanders, and on the basis of his determination that it would place our troops at risk, we have now taken a different position in court.
REP. LUNGREN: So, the original position was not to take an appeal? Is that correct?
ATTY GEN. HOLDER: I think that's technically right --
REP. LUNGREN: Okay. ATTY GEN. HOLDER: -- I'm not sure. But, we are now --
REP. LUNGREN: Well, would it be appropriate for us to ask if we could see the internal Justice Department memorandum with respect to that decision?
ATTY GEN. HOLDER: To not?
REP. LUNGREN: Would it be appropriate for this committee to ask that Congress have an opportunity to view the internal Justice Department memorandum which led to the decision not to appeal?
ATTY GEN. HOLDER: I will say, as a matter of course, that I want to work with this committee, but I have a great reluctance in saying that I would share internal Justice Department memoranda that deal with decisionmaking in particular cases.
REP. LUNGREN: Okay.
You had made the statement publicly that you believe that waterboarding is torture. Is that correct?
ATTY GEN. HOLDER: That's correct.
REP. LUNGREN: If that is the case, is it currently the position of the United States, when we submit our Navy Seals and other Special Operations military personnel to waterboarding as a part of their training, that we are currently subjecting them to torture?
ATTY GEN. HOLDER: No, that's a -- not in the legal sense. I think that's a fundamentally -- fundamentally different thing. We're doing something for training purposes to try to equip them with the tools to, perhaps, resist torture techniques that might be used on them. There is not the intent to do that which is defined as torture -- which is to inflict serious bodily or mental harm. It's for training. It's different.
REP. LUNGREN: And my question is, if we're causing them to undergo waterboarding, even under the guise of training them, aren't we subjecting them to torture if you have defined waterboarding as torture?
ATTY GEN. HOLDER: No. It's not torture in the legal sense because we're not doing it with the intention of harming these people physically or mentally. All we're trying to do is train --
REP. LUNGREN: So, it's the question of intent?
ATTY GEN. HOLDER: Intent is a huge part. So, if physical --
REP. LUNGREN: If our intent was to solicit information, but not do permanent harm, how is that torture?
ATTY GEN. HOLDER: Well, one has to look at -- (if it ?) becomes a question of fact, as one is determining "what is the intention of the person who is administering the waterboarding." When the communist Chinese did it, when the Japanese did it, when they did it in the Spanish Inquisition, we knew then that that was not a training exercise they were engaging in. They were doing it in a way that is violative of all of our -- all the statutes that recognize what torture is.
When we are doing it to our own troops, to equip them to deal with an illegal act, that is not torture.
REP. LUNGREN: So, the context is at least as important?
ATTY GEN. HOLDER: Well, context is important, but -- (inaudible) -- it's not context, it is what is the intention of the person who's administering the technique.
REP. LUNGREN: I think my time is up. I appreciate it.
REP. COHEN: Thank you, sir.
I hope you don't consider the water that we put next to you some type of intimidation. (Laughs.)
ATTY GEN. HOLDER: As long as it's not poured down my nose, I think I'm okay. (Laughter.)
REP. COHEN: Yes, sir.
I will recognize myself for five minutes. This is my turn in the questioning.
I am very concerned about racial and ethnic disparities that exist in the criminal justice system, and I was pleased to see that you have raised this issue in your testimony. As you noted, these disparities are eroding public confidence in the system, not to mention causing injustice, which is the most serious grievance.
I was pleased the department is convening a working group on sentencing policy, which I think would be very valuable. But, I think it's much larger than simply sentencing. Disparities exist in law enforcement policies, in prosecutorial decisions, and other aspects of the criminal justice system as well.
Shouldn't we be engaging in a full-scale review of the entire justice system and not simply the sentencing portion?
ATTY GEN. HOLDER: Well, I want to do that which I think is possible. My time as attorney general is limited and there are priorities I think that we have to set. That does not mean, however, that I don't agree with you that we as a society have to focus, I think, on the larger questions that you raise, to ensure that our criminal justice system, viewed in its entirety, is perceived as fair and actually is fair.
I try to chop off those parts that I think we can get done during the time that I am attorney general.
REP. COHEN: Possibly, this committee could look at some of those other factors, and we could work hand-in-glove. And I hope that we can, and that it won't be looked as a, you know, "render unto Caesar," and et cetera, and we'll work together.
ATTY GEN. HOLDER: I will be glad to work with you on that.
REP. COHEN: Thank you. Thank you, Mr. Attorney General.
The issue of deferred prosecutions is one that comes within the bailiwick of my subcommittee -- Commercial and Administrative Law, and also it's one that comes to me as an attorney, and as one who has a company within my district that has been the subject of one of the major deferred prosecution cases in New Jersey in the medical field.
Many issues have been raised. The New York Times had an article by Mr. Ashcroft, I think, on the 5th of this month, and there were three letters to the editor on the 11th of May, really condemning this practice. And it raises many issues.
And I guess the big issue I'd like to ask you is, do you plan to continue this policy of having deferred prosecutions, and having what I understand the benefits are to corporations, but also it's a double -- seems like a double type of justice where corporations get to continue on, and not have to plead guilty, while individuals get sent to the gulag?
ATTY GEN. HOLDER: Well, I think we want to keep open to ourselves the full range of tools that we have in dealing with corporate wrongdoing. Very frequently, if you prosecute a corporation you end up punishing innocents, people who did not engage in that wrongdoing -- shareholders, other employees. And so I think you want to have a full range of possibilities.
There are guidelines that we have in the United States Attorneys' Manual as to when a deferred prosecution or a decision not to prosecute is appropriate. And as long as we follow those guidelines, I think it's good to maintain that tool.
REP. COHEN: Are those the guidelines that were issued in August?
ATTY GEN. HOLDER: I'm not sure exactly when they were issued, but I know they reside into U.S. Attorneys' Manual.
REP. COHEN: I think Mr. Mukasey had something in August that was certainly an improvement on deferred prosecutions.
How is it determined on who gets to be the monitor? The monitors have been very lucrative positions. And, Mr. Christie -- I think, a former attorney general in New Jersey, who was, I think at one time, hired by Mr. Ashcroft -- employed Mr. Ashcroft. And Mr. Ashcroft's bill, in that case, came to, I believe, $54 million -- $52 million for Zimmer Holdings in the case where he was appointed.
Should there not be some type of neutral and detached individual to oversee, and to act as an ombuds-type person to make sure that the corporation isn't subject to any type of charges that might be levied by these monitors?
ATTY GEN. HOLDER: Well, typically the person who makes the decision is the person who is in charge of the case -- perhaps the U.S. attorney, maybe the head of the Criminal Division at the Justice Department. But, ultimately, it seems to me the attorney general is responsible for who is picked.
And so I think that, to the extent that we have concerns -- about who is being picked as a monitor, what charges the monitor is incurring, it's incumbent upon me to investigate, to look into those things and come up with systems so that we ensure that we are picking the right people and they are acting in an appropriate way.
And this is something that you raised with me earlier, and I think the concern that you raise is a legitimate one, and one that I will look into.
REP. COHEN: I have a bill -- I'm the original co-sponsor of H.R. 1947, the Accountability and Deferred Prosecution Act of 2009. It requires, among other things, that the department use guidelines providing for judicial oversight of the agreements. And I think that's a really important thing, to have the Judiciary involved -- (inaudible) -- public disclosure, deferred prosecution agreements, and any agreement or understanding between an independent monitor and the organization monitor.
So, the department would support that, I presume, because it promotes transparency, uniformity and accountability in deferred and non-prosecutions?
ATTY GEN. HOLDER: Well, I want to look at the bill, and I want to work with you in that. I wouldn't want to preclude, or in any way circumscribe, the ability of the department to be as creative as we can in formulating or using these tools.
REP. COHEN: The New York Times reported in May that 30 of the 41 monitors appointed in deferred prosecutions since '94 -- which goes back to the time, I guess, when you were at the Justice Department with Mr. Clinton, were government officials, and 23 were prosecutors.
Why is it that former prosecutors and government officials are more likely to be named monitors and receive lucrative monitoring contracts?
REP. COHEN: Should that be the case?
ATTY GEN. HOLDER: I don't think it's -- that's an interesting statistic, and one that I was not aware of.
I don't think that we should be favoring one class of person, one class of lawyer over another. On the other hand, it may be that people who have certain -- you want people who have the relevant experience, knowledge of the industry.
So, I think you want to look for people who are qualified, people who are going to understand the serious nature of their jobs. But, I think do not think that we should, kind of -- that we should reflexively look to one group of lawyers, or group of lawyers who only have one kind of professional experience.
REP. COHEN: And let me ask you one last question.
The hate crimes law, which has passed through this committee, there has been questions posed as to whether or not it could in any way infringe upon a minister's ability to preach against sexual conduct, particularly homosexuality, or other sexual conduct they may find abhorrent.
Is there anything in the bill that you've seen, or any time in history of hate crimes laws that have been on the books for years and decades and decades, even involving sexual orientation that have ever seen a preacher taken for his words and prosecuted, or for that matter during the civil rights days when preachers used to preach against civil rights or against integration, or for integration, or against, you know, Loving v. Virginia and all that?
ATTY GEN. HOLDER: I'm not aware of anything like that, and obviously there are First Amendment issues that you've gone into when you come to making those kinds of determinations.
You also have to have prosecutors who are going to use the tools that are given to them in an appropriate way. Prosecutors have a great amount of discretion. But, just looking at the statutes that I think the House has passed and Senate has passed, I don't see the exact situation that you've described as being problematic.
REP. CONYERS: First Amendment, that's good. Thank you, sir. Thank you, Mr. Attorney General.
The gentleman from Texas, the distinguished former judge, is recognized, Mr. Gohmert.
REP. LOUIE GOHMERT (R-TX): Thank you, and I appreciate that, and thanks for subjecting yourself to this torture. The intent is not to torture you there, so apparently it's not.
I'll follow up on the hate crime issue. You're aware of 18 U.S.C. 2A that basically says if you aid, encourage, induce someone to commit a crime -- "induce" is one of the verbs in that statute, then you're as guilty as the one who actually committed it. You're familiar with the law principle, surely.
ATTY GEN. HOLDER: Sure.
REP. GOHMERT: Yeah, and so if -- you may not be aware but after the Matthew Shepherd killing, in which I would I would have been open to the death penalty as appropriate in that case but they got life sentences so there's nothing the hate crime bill proposed would do to affect that case, or the James Byrd case, where the two main guys got the death penalty.
But after the Matthew Shepherd case, there were mainstream media people who were saying people like James Dobson, who has said homosexuality was wrong, had actually -- and they used the word "induced" this crime.
So it is possible, and even under the definition in the -- or the provision in the hate crimes bill that says you can't use constitutionally protected speech in a prosecution under this act, there is a comma, and it says, unless it applies to the underlying offense.
If the underlying offense is inducing someone to commit the crime, then certainly a preacher's sermons would be used in evidence if it was deemed by the prosecutor that that was evidence that he induced someone to commit a crime, correct?
ATTY GEN. HOLDER: It seems to me that that inducement is a little attenuated, the notion that you would go after -- the prosecutor would go after a preacher who was saying things that I would not agree with, hateful things about somebody's sexual orientation. I don't see how that, in and of itself, is going to be enough to bring that --
REP. GOHMERT: Even if the shooter said, I was induced by the preacher telling me these things in his sermon, and even if the sermon were based on the Bible, the Tenoch (ph) or the Koran?
ATTY GEN. HOLDER: Again, that seems a little attenuated to me. I think --
REP. GOHMERT: But it could happen, couldn't it?
ATTY GEN. HOLDER: It's hard for me to imagine, in fact, a situation where that could happen.
REP. GOHMERT: So you are saying, as attorney general, there is not a case where you could see using 18 U.S.C. 2A against anyone who is alleged to have induced someone else to commit a hate crime?
ATTY GEN. HOLDER: I'm not saying that at all. If somebody is on the scene, for instance, and says, get that -- uses a negative word -- and kill him, shoot him, do that, that's a fundamentally different thing than a preacher expressing a religious view on a Sunday.
REP. GOHMERT: So someone would have to be on the scene before you would use the law principles?
ATTY GEN. HOLDER: No, I'm not saying you have to be on the scene --
REP. GOHMERT: Well, that's what you said. You said if he is on the scene.
ATTY GEN. HOLDER: I gave that example, but just an example. There are a variety of ways in which, you know, speech can be used to induce crimes that might be criminally cognizable, but the example that was used --
REP. GOHMERT: Well, the example I used, though, is the one I'm asking about. And if you wanted to determine whether a preacher did induce someone, you would have to subpoena the sermons and see if there was language that you felt was inflammatory enough to induce someone to commit the crime, correct?
ATTY GEN. HOLDER: It might be that it is part of the case that you are bringing against the person who actually committed the act and you wanted to show the intent --
REP. GOHMERT: But I'm not talking about them; I'm talking about one who may be considered and investigated for inducing another to commit a hate crime.
ATTY GEN. HOLDER: Well, as I said, I find it hard to believe that a good prosecutor would go after a preacher on a Sunday, spewing whatever --
REP. GOHMERT: So you're not aware of preachers being arrested in Norway for supposedly inducing by using language from the Bible about homosexuality. You're not familiar with that.
Well, let me move on. In your testimony you said that you're establishing direct ties and personal relationships so that our -- and our counterparts' law enforcement agencies may use them -- talking about foreign legal policies and procedures. Are foreign law enforcement going to be allowed access to our FBI files under the procedure you're talking about here?
ATTY GEN. HOLDER: We share intelligence with our foreign counterparts on a regular basis.
REP. GOHMERT: But my question is about the FBI files. I just don't know the extent to which you're willing to share information.
ATTY GEN. HOLDER: There is information that comes from the FBI that we share with our allies, with our foreign law counterparts on a regular basis, not only intelligence but other law enforcement information.
REP. GOHMERT: Well, I was just trying to determine what the pronoun "them" included when they use "them," what records that includes. You're saying they're not going to come in and peruse the FBI files. You'll provide just such information as is necessary, correct?
ATTY GEN. HOLDER: Yeah, typically we don't let law enforcement, people from other countries, or even from other states, or from state and local come in and just look at FBI files at the FBI. We made determinations as to what we can share with them.
REP. GOHMERT: Thanks. And I would ask unanimous consent for the extra two-and-a-half minutes like the chairman had for one more question.
REP. COHEN: With unanimous consent I will give you an extra 30 seconds like the chairman had. It was the former prosecutor from California who had the extra two-and-a-half minutes.
REP. GOHMERT: Well, actually I had you timed, but --
Whether water-boarding is torture you say is an issue of intent. If our officers, when water-boarding, had no intent to do permanent harm and in fact knew absolutely they would do no permanent harm to the person being water-boarded, and their only intent was to get information to save people in this country, then they would not have tortured, under your definition. Isn't that correct?
ATTY GEN. HOLDER: No, not at all. Intent is a facts question; it's a facts-specific question.
REP. GOHMERT: So what kind of intent were you talking about?
ATTY GEN. HOLDER: Well, what is the intention of the person? In doing the act, was it logical that a result of doing the act would have been to physically or mentally harm the person?
REP. GOHMERT: But I set that out in my question. The intent was not to physically harm them, because they knew there would be no permanent harm. There would be discomfort but no permanent harm. They knew that for sure. So is the intent -- are you saying it's in the mind of the one being water-boarded whether they felt they were being tortured, or is the intent in the mind of the actor who knows beyond any question that he is doing no permanent harm, that is he only making them think he's doing harm?
ATTY GEN. HOLDER: No, the intent is in the person who would be charged with the offense, the actor, as determined by a trier of fact looking at all of the circumstances. That is ultimately how one decides whether or not a person has the requisite intent. I mean, I'm speaking to a judge so I say that with due respect.
REP. GOHMERT: And I'm speaking to the attorney general with complete respect. But you know that prosecutors bring cases to grand juries, so it is what is the intent of the prosecutor as far as going forward, and if it's your intent that someone has to believe that they are doing harm to someone in order to be torture, then if your intent -- and in fact, you knew without any question there was no harm being done, then there's no torture, correct?
ATTY GEN. HOLDER: No, I wouldn't say that. You know, you can --
REP. GOHMERT: Then what is the intent?
ATTY GEN. HOLDER: You can delude yourself into thinking that what I'm doing is not causing any physical harm, it's not causing any mental harm, and somebody, a neutral trier of fact, can say --
REP. GOHMERT: I didn't say mental harm, because you want them to think that there's harm --
ATTY GEN. HOLDER: All right, physical harm for that matter.
You could think that that in fact is what you were trying to do or trying not to accomplish, and in fact a trier of fact could look at that and make the determination that in spite of what you said, that what you have indicated is not consistent with the facts, not consistent with your actions, and therefore you're liable under the statute for the harm that you caused.
REP. GOHMERT: Well, thank you, Mr. Chairman, but I feel sorry for our guys out in the field trying to discern their actions based on what you just said. Thank you, though.
REP. COHEN: Well, I think you were accurate. I went two-and-a- half minutes and you went three-and-a-half. We went beyond fairness.
ATTY. GEN. HOLDER: But one thing, just to respond -- I mean, the concern you raise is a good one in the sense that we want to make sure that we are clear, with those men and women who serve us in the field, that we are clear to them about what the standards are and what we expect of them.
And I think that is one of the reasons why President Obama, early on, ruled off the table certain interrogation techniques, and we've tried to be very clear about the way in which we would view their conduct so that they would have an ability to know what is on the right side and what is on the wrong side. So we've tried to be clear.
REP. COHEN: The gentleman from the Broad Shoulders city is recognized, Mr. Quigley.
REP. MIKE QUIGLEY (D-IL): Thank you -- the president's home town.
REP. COHEN: That would be correct.
REP. QUIGLEY: An issue of great interest to my hometown, the president's home town, gun violence, particularly as it relates to recent days and recent months -- automatic weapons. So this harkens back to I believe it was your February statement relating to the interest in reinstituting the ban on assault weapons. Can you tell us if you know where the sequencing is, as you made reference to at this point?
ATTY. GEN. HOLDER: Well, I think that what we want to do is look at all the ways in which we can reduce gun violence in this country. One of the things that I think that we have done in our budget is to give our state and local counterparts really sufficient amounts of money so that they can enforce their laws.
We want to share information. We want to enforce the laws that we have on the books. I think there are whole variety of ways in which we can get at the problem of gun violence, and we are determined to do that, in conjunction with our partners and in conjunction with members of Congress.
REP. QUIGLEY: But there is still an interest out there to address assault weapons in particular?
ATTY. GEN. HOLDER: Well, I mean, we have to look at those tools that are being used by criminals and try to come up with ways in which we keep guns out of the hands of criminals, certainly guns that are flowing into Mexico, assault weapons. We have to figure out ways in which we stop that.
I mean, there is a particular problem in Chicago, just from what I see on the television, about young people who are the victims of gun violence, and I think we have to look at, you know, what is driving that issue, that problem in a particular city and then come up with ways in which we deal with that.
REP. QUIGLEY: And you mentioned Mexico, and, again, the secretary of State talked about the violence as it relates to Mexico and the United States in terms of the insatiable use of demand for drugs in this country and the fact that most of the crimes that are taking place in that confrontation are purchased here in the United States -- obviously a second purchaser or an automatic weapon that's been passed on.
So I'm just not sure that the general notion of keeping it out of people's hands is going to do it. If you can buy machine guns, they're going to get down there.
ATTY. GEN. HOLDER: You mean in Mexico?
REP. QUIGLEY: Well, if you can buy them here, they're going to be -- and that's where they're coming from, so if you can buy automatic weapons here in the United States, they're going to be in Mexico. They're going to be used against our citizens as well.
ATTY. GEN. HOLDER: Yeah, at least some of the research indicates that what happens here is that straw purchasers --
REP. QUIGLEY: Right.
ATTY. GEN. HOLDER: -- purchase these weapons and then transfer them in some form or fashion. The Department of Homeland Security is working with our Mexican counterparts, as well as the Justice Department, to come up with ways in which we monitor the traffic from the United States to Mexico.
We think a large number of these weapons are carried in cars, and there are tools that DHS has that are going to be employed at the border crossings to try to make determinations as to what is actually in these cars. They'll have the ability to inspect them.
And so we've also moved resources, ATF agents, to the border, 100 or so, in an attempt to stop that flow of weapons into Mexico.
REP. QUIGLEY: I appreciate that. I guess, in conclusion, to the extent that the president can help push toward a reinstitution of the ban on assault weapons, automatic weapons, we in Chicago would appreciate that.
Thank you so much for your time. I yield back my balance.
REP. COHEN: Thank you. I now recognize the other distinguished jurist from the state of Texas -- that's just the way it is -- Mr. Poe.
REP. TED POE (R-TX): Thank you, Mr. Chairman, and there are probably only two distinguished jurists from Texas -- (laughter) -- but, be that as it may, thank you, Mr. General, for being here.
I've been to Guantanamo Bay. I know you have been as well, seen the prison there. And I'll tell you this, that there are Texas sheriffs that wish they had that type of facility in their jail because of the way that inmates seem to have amenities there aren't in other places in the States.
How many -- have any states asked you to send detainees from Guantanamo to their state?
ATTY. GEN. HOLDER: Not that I'm aware of.
REP. POE: Well, have any told you, don't let them come to our state?
ATTY. GEN. HOLDER: I think I might have read some things in the newspaper. I'm not sure about -- I've not had any official -- anything officially sent to me but I think I've read things in the newspapers about --
REP. POE: But you don't know of any state that wants detainees from Guantanamo Bay?
ATTY. GEN. HOLDER: I've not asked or talked to any governors or any senators, congressmen. I know that there are fair number of members of your party who have indicated what their desires are, but --
REP. POE: But nobody had told you they want them?
ATTY. GEN. HOLDER: I'm sorry?
REP. POE: Nobody has told you them want them -- not state, no official, nobody. No government agency has said, let them come to our place?
ATTY. GEN. HOLDER: No, I've not asked anybody that question.
REP. POE: And they haven't -- no one has volunteered that information.
What is your personal definition of a terrorist?
ATTY. GEN. HOLDER: Interesting question.
I guess a person who uses violent means to inflict harm upon innocent people or uses the threat of violence to achieve unlawful ends. I know with a little more time I'd probably come up with a better definition but I think that's about what I -- the way I -- which I'd describe --
REP. POE: Okay.
ATTY GEN. HOLDER: -- a terrorist.
REP. POE: I'd request that you then come up with your definition and submit it to the chairman of the committee.
ATTY GEN. HOLDER: That's fine. I'll do that.
REP. POE: Your personal opinion. Thank you. Last month, several top secret security papers were released to the public and apparently in them we learned that Khalid Sheikh Mohammed, the 9/11 individual, after being waterboarded started talking, and he claimed that there was going to be an airplane crash into a skyscraper in Los Angeles, disclosed a 17-member terrorist cell, and he also talked about a terrorist cell in New York plotting to destroy the Brooklyn Bridge. Is that correct? Is that information correct?
ATTY GEN. HOLDER: I feel a little uncomfortable. I don't -- I don't necessarily think that I'm in a position given the forum in which we're in to -- to answer questions that might involve the disclosure of classified information.
REP. POE: Well, somebody disclosed this information. I read this in The Washington Post.
ATTY GEN. HOLDER: Well, somebody probably shouldn't have.
REP. POE: Well, that's a different issue. If that information is true and he started talking only because he was waterboarded, do you think maybe waterboarding was a good idea to save American lives in those two cases?
ATTY GEN. HOLDER: Well, I think the question really is you can't --
REP. POE: No, that's not -- no, I don't want your question. I want my question answered. My question is simple.
ATTY GEN. HOLDER: I was going to answer.
REP. POE: Assume that's true. Assume it's true, hypothetically, and he was waterboarded and but for being waterboarded we'd have never known about this. Do you think maybe waterboarding was a good idea in that case, or not?
ATTY GEN. HOLDER: I think the question is whether or not other techniques might have gotten the same result that might not have taken us down the road that I think is inappropriate, and that is the use of a technique that I consider to be torture.
REP. POE: Well, no other technique --
ATTY GEN. HOLDER: I think there's no question about that.
REP. POE: -- no other techniques appeared to work if they were used. This one did. So you would just rule it out automatically because it's waterboarding, even if it saved American lives? That's my question.
ATTY GEN. HOLDER: The question is how are we going to save American lives, and it's --
REP. POE: No. Excuse me. I'm sorry. My question is real simple. Waterboarding -- but for waterboarding we would not have known this information. Assume that is true. Do you think waterboarding should have been used or not used in this example?
ATTY GEN. HOLDER: I reject the hypothesis. There is not a basis for anyone to conclude that but for the use of waterboarding on a particular person you could not have gotten the same information from that person. We heard testimony from a very sophisticated and experienced FBI interrogator just yesterday about the success that he had using non-waterboarding techniques on Abu Zubaydah.
REP. POE: Of course, he didn't get this information by talking to him and telling him to give us the information and -- well, the way we got the information was by waterboarding.
ATTY GEN. HOLDER: The testimony of the person who testified yesterday was that he got information that was very useful including the identity of Khalid Sheikh Mohammed, including the identity of Jose Padilla, using non-waterboarding techniques -- doing techniques that are approved by the FBI. That was the testimony of the person yesterday.
REP. POE: Well, but for waterboarding there is absolutely no evidence in your department or by anybody in your agency that you control that we would have received this information that there were two planned attacks on America and but for waterboarding they did not occur.
ATTY GEN. HOLDER: Well, actually you do have testimony from somebody who was formally a member of the organization that I now head -- that is, an FBI agent who -- (that's ?) part of the Justice Department -- he testified in a contrary way yesterday.
REP. POE: So we would have gotten this information anyway is your position?
ATTY GEN. HOLDER: I don't know we would have gotten it anyway but I -- I certainly know that I have great faith in the techniques that the FBI uses and the testimony of that FBI agent yesterday also consistent with interactions that I have had with retired intelligence officers from the military who have indicated that you don't have to go to techniques such as waterboarding in order to get good useful intelligence from -- from detainees or from suspects.
REP. POE: So you would take the risk that we wouldn't get this information because you're so hell bent on not using waterboarding. Is that what you're saying?
ATTY GEN. HOLDER: No. I would never put the American people at risk nor would I put what is great about this country, and that is the values that defines us and separates us from the very people who we are trying to fight. That is something also that I will not put at risk -- the safety of the American people and who we are as Americans.
REP. POE: So you would use whatever means was necessary to not put Americans at risk?
ATTY GEN. HOLDER: I will use means that are consistent with our values. George Washington in 1776, when he won the Battle of Trenton at Christmas, told the people who were taking British prisoners that regardless of how the British treated our prisoners we will not treat British prisoners in the same way. We are better than that. That's our Founding Father and -- (inaudible).
REP. POE: Understand, but that's -- that's --
REP. CONYERS: We are --
REP. POE: Excuse me.
ATTY GEN. HOLDER: If we're looking for -- (inaudible) --
REP. POE: I'll -- I'll yield back my time.
ATTY GEN. HOLDER: -- that's, I think, where we should start. George Washington, faced with a similar question, came up with that answer.
REP. POE: Well, it's a completely different scenario. This is a preventive medicine and we -- people have been apparently saved by waterboarding and it's not the same as the situation that you mentioned. I'll yield back.
ATTY GEN. HOLDER: We'll have to disagree about that.
REP. CONYERS: Thank you. We (are now ?) recognize the gentleman who skates on frozen water and intimidates goalies -- the gentleman from New York, Mr. Weiner.
REP. ANTHONY D. WEINER (D-NY): Thank you. I'm not sure I want to get used to these little introductions you've been doing, Mr. Chairman. (Laughter.) Mr. Attorney General, do you share the views of your five predecessor attorney generals that the COPS program has been a success?
ATTY GEN. HOLDER: Yes. I certainly believe it's a success, yes, has been a success.
REP. WEINER: Do you want to expand on that at -- at -- at all? I see that it -- there's a billion -- a billion dollars in the -- in the stimulus program that you mentioned in the -- in your testimony and I know that the president is committed to hiring 50,000 additional police officer (sic) in the COPS program. Yet in the budget that was released last week or the week before only -- funds were only put in sufficient to hire 1,500 police officers. Is -- is that going to change? Is this -- (inaudible) -- going to be a, I guess, a 15-year program as opposed to the way it's been reauthorized? What -- what is the position of the Justice Department and the administration on the COPS program?
ATTY GEN. HOLDER: Right. I think as you look at the -- the budget I think the number actually is about 5,500 for that first -- that first batch of hiring. I think the COPS program has been successful, something I know that you have supported a great deal -- something that was, I think, we learned from the New York City experience, and so our ultimate aim is to have 50,000 new officers on the street over time.
REP. WEINER: Over what period of time?
ATTY GEN. HOLDER: I would have to get back to you on that. I'm not sure exactly -- I don't want to --
REP. WEINER: Because I -- I don't want to confuse the two things. One is the stimulus bill that has a billion dollars in it. The other is the language that's in the president's budget that refers to 50,000 police officers and has $298 million for fiscal year 2010. Those numbers only give us enough for 1,500 police officers, and the bill that we passed out of this committee and passed on the floor envisioned $1.8 billion a year.
So if you do the math, we're not going to get to the 50,000 cops in your first term, and I just want to know what the -- and the president mentioned on Tuesday again in the ceremony honoring police officers his intention to hire 50,000 police officers. So I'm not sure how we make those two numbers meet.
ATTY GEN. HOLDER: Okay. What I would like to do then is perhaps get back to you with the precise information and how it breaks down in terms of money expended and the time frame -- the timeline in which it would take to get to that 50,000 officers. But it is certainly the intention of this administration to put 50,000 additional police officers on the street.
REP. WEINER: Good. Before I change subjects, do you want to say anything gratuitously complimentary of the sponsor of that reauthorization?
ATTY GEN. HOLDER: Yes, I do. I think that the person who did that obviously should be commended.
REP. WEINER: All right. That's -- that's -- that's --
ATTY GEN. HOLDER: He's a man of great intelligence.
REP. WEINER: That's -- that's quite enough. You -- you -- you can submit any additional remarks for the record. Can I talk to you a little bit about DNA and the backlog of evidence? You know, it seems that we've had some great success in that we've gotten the federal government into the game of helping states and localities clear out some element of the backlog that existed in some police departments.
But we still have, it seems to me, some structural problems as we -- with the help of Mr. Schiff and others as we now expand the number of piece -- the number of offenders that are going into the database, more evidence is being collected -- that we still seem to be having a problem keeping up, meaning that we're not producing enough labs that are certified, the cost is not what it should be. You know, we heard testimony yesterday about some of the problems with the -- with DNA collection that -- that -- that still needs to exist -- that still exist.
We know, for example, that the turnaround for rape kits in the United States is about 30 weeks and it's about 33 days in England. Is -- is this going to be an area of -- of emphasis for -- for your department to try to figure out how we take the next step in making this -- this tool which everyone, as you know, looks at DNA evidence collection through their own lens. Some people see it as a -- (audio break) -- way to exonerate those who are innocent is a valuable tool, and I'm concerned that we're reaching a point that we've got to choke now -- that we have so many evidence kits, so many offenders being put into the database, that if we're not careful we're -- it's going to lose its value because we're unable to process all that information.
ATTY GEN. HOLDER: You're exactly right, and we have to come up with a system and that's why there is contained in our budget money to try to get at that backlog. But we have to be mindful of the fact that as we do the necessary tests to establish a basis to use this wonderful technique we have to not only deal with the backlog, we have to come up with ways in which we stay current.
When you have statistics as the one that you've cited as compared to what's going on in England there's no reason why there should be that disparity. And so I think we should focus on using the limited resources in the way that we can be most effective, and given the, I think, the uniformity that people have -- the view of -- the value of DNA testing that is a place where we should be spending our -- our limited resources.
REP. WEINER: And one final question -- do you support having any -- anyone who is arrested for a federal crime having to submit their DNA for a match -- arrestees?
ATTY GEN. HOLDER: I think that's certainly something that we ought to -- ought to consider and I -- you know, we take fingerprints from people who are arrested and in some ways I think DNA is a 21st century fingerprint. The tests that we can now do in order to get DNA samples are not necessarily as intrusive as they once were. You don't have to take blood from somebody, for instance, in order to get, you know, necessary samples, and so I think that that is something that we certainly ought to consider.
REP. WEINER: And -- and I --
REP. CONYERS: Thank you.
REP. WEINER: Thank you, Mr. Chairman.
REP. CONYERS: I've been instructed I need to be more like Bud Collyer on "Beat the Clock" because we're -- in 15 minutes we're going to be back for votes. Mr. Chaffetz from Utah, you're recognized.
REP. JASON CHAFFETZ (R-UT): Thank you, and thank you, Mr. Attorney General. I appreciate it. It's a privilege and I appreciate you being here. As we get going, I just want to pass on a word that I have spent considerable time in ride-alongs with United States marshals, in particular the JCAT program -- the Joint Criminal Apprehension Teams. I would encourage you to continue to push for that program. It works wonderfully within the state of Utah.
I appreciate the good work those men and women are doing and just want to add a vote of confidence and -- and support to that program as it moves forward. I had the opportunity, as I know you did, to go to Guantanamo Bay. I was very fortunate to go there. Appreciate the great work that the men and women are doing there. But I do have some questions and concerns about the administration's policy as it relates to terrorism and terrorists, and I just can't, for one, see what possible benefit the American people would have by bringing one of these terrorists to the United States of America.
ATTY GEN. HOLDER: Well, I mean, the focus that we have is on closing Guantanamo, which has served as a recruiting tool for al Qaeda around --
REP. CHAFFETZ: But -- but my question is what is the benefit -- what possible benefit could there be to bringing any one of those people to the United States of America?
ATTY GEN. HOLDER: Well, you see, I don't -- I think the question -- the focus is on what we do with Guantanamo. I mean, I think that's the way you posed -- (inaudible).
REP. CHAFFETZ: No. But my question is what benefit -- what -- you said that you would not implement anything -- anything that would pose a risk to the United States of America. Now, it seems to me that the -- there would be zero risk if we brought zero of the people to the United States of America. So what possible benefit is there to the American people to bring one of those detainees to the United States of America?
ATTY GEN. HOLDER: I think you have to look at the question in a larger sense.
The question really from my perspective is, what benefit do the American people get by emptying the cells in Guantanamo -- a facility that is now run I think in an appropriate way -- (audio break) -- cells, we have to find places for these people to go. And so I think that is the benefit that the American people will get from closing Guantanamo.
REP. CHAFFETZ: So it's a PR effort to make -- right? There's no -- I mean, is that right? I mean, Is that a fair -- I mean, it's a public relations effort, right, to try to persuade the world that we're more humane than what we've done in the Bush administration here? Is that the idea?
ATTY GEN. HOLDER: No, it's not a PR effort. It's a return I think to practices and values that have always defined this nation, and I mean that in the Republican as well as Democratic presidents. It's a recognition or a signal to the world that the United States is back in a very -- in a substantial way, and I don't think we can underestimate the impact of that. As I've been to other countries --
REP. CHAFFETZ: May I -- my time is so short.
ATTY GEN. HOLDER: Oh, I'm sorry.
REP. CHAFFETZ: My apologies for cutting you off, but can you assure the American people that no one who is currently detained in Guantanamo Bay and who has received military training at a camp run by a known terrorist will be released in the United States absent an order to do so by the Supreme Court of the United States?
ATTY GEN. HOLDER: What I can assure the American people is that nobody from Guantanamo who would pose a danger to the United States will be admitted into them.
REP. CHAFFETZ: Wouldn't that -- if we want to have the smallest risk and the smallest amount of danger, wouldn't that mean bringing zero of them to the United States of America?
ATTY GEN. HOLDER: I think if we want to maximize the benefit that we get, we want to close Guantanamo on the timetable that the president has given us and then use the enhanced relationships that we'll have around the world as a result --
REP. CHAFFETZ: But if we want a lower risk -- you answer it with a question about maximizing benefit. I'm saying what are we going to do to make sure that the risk is at its absolute lowest?
ATTY GEN. HOLDER: Well, we do that by what we're doing now, which is to go into those files -- 241 of them, painfully, one by one, and make sure that we make determinations that the only people that are put up for release or for transfer are people who will do no harm to the citizens of this country.
REP. CHAFFETZ: But the lowest risk would be if none of them came to the Untied States. Is that -- am I wrong in that?
ATTY GEN. HOLDER: Well, I think the lowest risk is really look at these people, making those determinations, and then figuring out where they can best be placed.
REP. CHAFFETZ: But what benefit would there be placed -- be for placing any one of them anywhere within the United States of America? What is the benefit?
ATTY GEN. HOLDER: Again, as I said, I think the benefit comes from closing of Guantanamo. That's where the benefit comes. You cut out a recruiting tool and you start up -- you end the alienation of our relationship with our allies.
REP. CHAFFETZ: I happen to disagree with that assessment, having been to Guantanamo. I would ask unanimous consent, Mr. Chairman, to be able to submit a letter that I sent to the president after my return from Guantanamo Bay, and I would appreciate it if I could submit that for the record.
REP. CONYERS: Without objection.
REP. CHAFFETZ: I'm sorry, I can't see the clock. I hope -- is it red?
REP. CONYERS: It's red. Thank you for yielding back your time. (Laughter.) Thank you, sir. Thank you.
REP. CHAFFETZ: Thank you. Appreciate it.
REP. CONYERS: He's good on that. He's a field goal kicker so he's used to kicking in the last few seconds.
I now recognize the lady from Texas, the distinguished Ms. Sheila Jackson Lee.
REP. SHEILA JACKSON LEE (D-TX): Attorney General, it's a pleasure. Thank you very much. I had double duty today in the Homeland Security Committee and here, and it shows that how much of our work overlaps.
I wanted to applaud the ad ministration for its work since part of it was court-involved of the release of the young reporter from Iran. I think the strategy was effective and I'm glad that she has returned back to her family. In that instance it was a combination of lawyers going to a court, obviously, after the court had been softened," if I can use that in quotes. We know that she was sentenced to a very long sentence and it was in essence a level of finality, but with the I think appropriate statements by the administration, it shows that the bully pulpit is appropriate. It also shows that people do watch what the United States does.
Let me again pose very quickly questions dealing with water- boarding simply to say that as I understand it, it has been defined internationally as torture. Is that not correct?
ATTY GEN. HOLDER: I'm not sure that it -- I'm not sure about whether it has -- there is a list of techniques internationally and that water-boarding would be one of them, but as I --
REP. JACKSON LEE: How would you characterize it, then?
ATTY GEN. HOLDER: -- but as I look at the definition of torture, and given the history of the use of that technique, it seems clear to me that water-boarding is torture.
REP. JACKSON LEE: And in the assessment and defining aspects of treatment that might be considered torture, you don't in any way discard the ultimate responsibility of securing the United States of America.
ATTY GEN. HOLDER: Not at all. That is the primary responsibility I have as the attorney general of the United States. It's something that I wake up thinking about; it's something that I think about when I go to bed at night, and I will use all the tools that are at my disposal --
REP. JACKSON LEE: And if you were -- and sorry, just for the time. And if it was to come to your attention either by various intelligence agencies, the FBI, your military consultations, which I know -- and because of the president's sort of bringing together the national security and homeland security team -- you would not hesitate in any way to first, of course, brief the president, and then of course if congressional action was needed, to approach us and brief us for action.
ATTY GEN. HOLDER: In terms of --
REP. JACKSON LEE: If in any way you felt that the actions we have just taken or will be taking as we define what we will continue to do and not do in securing intelligence -- if you were to be briefed to determine that our national security was in jeopardy, you would respond accordingly first to the president, I would hope, and then of course to the appropriate congressional oversight committees.
ATTY GEN. HOLDER: Yes. One of the task forces that the president created in his January 22nd executive order was that detention and interrogation -- an interrogation task force, that is, charged with the responsibility of looking at what techniques are effective, what techniques should be used by our government, beyond perhaps those that are contained in the Army Field Manual. And that group is supposed to report back in July of this year.
REP. JACKSON LEE: I'm aware of that, and you are being constantly vigilant. I know that you were down in Guantanamo Bay. I was down in Guantanamo Bay. We know that the president still has as his position that that facility will close.
Again, let me ask a question on Guantanamo Bay, and of course I've been there a number of times. I have watched interrogation. So the question is, if you were to determine ultimately -- not projecting your final determination -- that there was some jeopardy to the nation's national security, in your role as attorney general, would you then provide, as you have been asked to do, the appropriate briefing and ensure that the national security of the United States would not be jeopardized?
ATTY GEN. HOLDER: Sure. I mean, I would obviously bring any concerns I had to the president, would brief the appropriate committees to the extent that I had concerns, and then try to work with those committees to try to alleviate the concern.
REP. JACKSON LEE: So we're somewhat precipitous in suggesting that our national security is at a collapse because we do have individuals who have been tasked to determine that.
ATTY GEN. HOLDER: Yeah. I mean, that is one of the things I swore to do, as did the president, as did all the members of this committee, to preserve, protect and defend the Constitution of the United States.
REP. JACKSON LEE: And I thank you.
Let me quickly move to Harris County, where I have submitted a number of letters regarding a 10-year period in Harris County Jail where about a hundred people died. Comments being made by individuals that were custodians -- when someone was bleeding, an inmate, and they said, "Do you want me to get a Band-aid?" I believe we have entered into an investigation after many, many letters and calls. I would appreciate it -- we have a newly elected sheriff -- we are attempting to put in place the kind of procedures that would incarcerate people but would allow them to live and leave. Can I find out when you might have some report on that investigation?
ATTY GEN. HOLDER: All right. I'll try to get back to you with that. It's always difficult to report on ongoing investigations, but as I think I indicated earlier, to the extent that we can share information that will result in better practices being instituted, we want to share that information, and we'll find a way that we can do that.
REP. JACKSON LEE: Might I take you up on that offer separate and apart from the investigation to be able to have the new sheriff and small numbers of his team visit on best practices or be able to work through those issues? I think that would be enormously helpful.
Let me, if I can, just --
ATTY GEN. HOLDER: We'd be glad to work with him.
REP. JACKSON LEE: I would appreciate it.
Let me just conclude on this issue of drug addiction and the abuse of drugs, the border, et cetera. I hope that I can get the same sort of complimentary approach as my good friend did on his authorization bill on cops. But I have H.R. 265, which talks about one-to-one, and I know there are many different discussions on this, but it also -- to the high-value cartel actors, if you will, enhances their sentencing, so it sort of balances the question. I would raise this question about the Department of Justice interests in a broader discussion about the impact of drugs as it relates to -- internationally -- you have an international component, Afghanistan, the border, the drugs here in the United States -- so that we can look at the big picture. And then the response to the question of working with the little guys that are one-on-one, but yet not ignoring the bad actors who continue to fuel and to kill and to produce and to see no ending to their bad acts that now impact all of or a large part of the United States.
ATTY GEN. HOLDER: No, I mean, that is exactly the approach that we would take. You and I have talked about this for years. In focusing on street crime and what happens in our communities, we can never lose sight of the fact that there are these big players both within this country and outside this country who make millions of dollars, billions of dollars on the backs of people in this country, people who are addicted to drugs. And so our focus has to be not only on keeping our streets safe but also interdiction and punishing those who bring narcotics into our country.
REP. JACKSON LEE: Let me thank you. Don't forget the community relations office that I said could be a great asset. It was not used properly in Jena Six. It was not listened to, and I'd like to discuss with the Department of Justice about some enhanced requirements that when there is conflict, either tied to federal funding as it relates to the district attorney or local law enforcement, that the community relations vehicle be an asset and be utilized. It was not used there. It turned into a crisis, and you -- I think you know the whole story of Jena Six, where some youngsters were incarcerated and others were not, and the community relations person was there but was not listened to.
I thank the gentleman -- chairman for his kindness. And Mr. General, maybe we can follow up on that conversation. Maybe you want one sentence on that as I close.
I yield back, and maybe you could just --
REP. CONYERS: Thank you. Thank you. We're going to have to limit everybody to five minutes on the close to get everybody in.
REP. JACKSON LEE: Thank you.
REP. CONYERS: But -- so thank you, sir.
And Mr. Franks from Arizona, you're recognized.
REP. TRENT FRANKS (R-AZ): Well, thank you, Mr. Chairman. And thank you, Mr. Holder, for being here.
Mr. Holder, I'm a member of both the Judiciary Committee and the Armed Services Committee, so I get a lot of information about Gitmo and some of the hearings -- you know, we talk about the enemy combatant from both directions and in heavy doses. And I've got a couple questions about what's commonly known as "lawfare" -- you know, not warfare but lawfare.
The term lawfare describes the growing use of legal claims, usually bogus, in my opinion, that are used as a tool of war. The goal is to gain the moral advantage over one's enemy in the court of public opinion and potentially illegal advantage in national and international tribunals. And I guess I'd like to get your perspective on this.
As was reported by Jed Babbin in Human Events in June of 2008, you gave a speech to the American Constitution Society where you spoke of the Supreme Court's decision in Boumediene v. Bush, which for the first time granted habeas corpus rights to the terrorist detainees held at Guantanamo Bay. Justice Scalia in his dissent said the decision, quote, "will almost certainly cause more Americans to be killed."
In your speech you said of the Boumediene decision, quote, "The very recent Supreme Court decision, by only a five-to-four vote concerning habeas corpus and Guantanamo is an important first step, but we must go much further," unquote.
Now, Boumediene in my judgment was a radical departure even from earlier Supreme Court decisions on the subject and from the law of war going back to the founding of the United States. So I'd like to ask you, sir, how much farther specifically would you -- you know, how would you like the law to go much farther in that regard? Specifically, what more constitutional rights should we grant to terrorist detainees?
ATTY GEN. HOLDER: Well, that speech I was talking about -- when I said going further, it meant not with regard to the detainees. I was talking about a whole range of things that I disagreed with that administration was doing, with regard to unauthorized surveillance of American citizens, the interrogation policies that were in place. That's what I was talking about in terms of how -- where we needed to go farther.
REP. FRANKS: Okay. Well, during the hearing before the House Armed Services Committee in 2007, witnesses identified many dangers associated with allowing terrorists to wage lawfare against the United States from within the United States judicial system. One expert witness testified before the committee, and he was Associate Deputy Attorney General Greg Katsas. And speaking at one point about the proposals for habeas corpus rights for detainees, Mr. Katsas -- he opined as follows, quote: "If you have the enemy combatant determination being done by a court in this country where there would be stronger arguments on the other side for the application of full constitutional protections, and then we would be in the nightmare world of arguing about Miranda warnings for Mr. Mohammed before his interrogation and the, quote, 'knock and announce' rules before we go into caves in Afghanistan. Those are all risks attendant with habeas corpus."
So is the president's Department of Justice prepared to extend Miranda rights to terrorists on the battlefield or before interrogations?
ATTY GEN. HOLDER: I mean, we've not said that that is our position. And when it comes to picking people up off the battlefield, I think you're looking more to the laws of war than the criminal laws of the United States. I do note that, as you indicated, that a Supreme Court, not a liberal Supreme Court, ruled that the right of habeas corpus did attach to people who were detained at Guantanamo. And in spite of what Justice Scalia said, five of his counterparts disagreed with him.
REP. FRANKS: Yeah. Well, let me just -- last question. Al Qaeda's training manual, seized by British authorities in Manchester, England, openly instructs detained al Qaeda fighters to claim torture and other types of abuse as a means of obtaining a moral advantage over their captors. That advice has been routinely followed by detainees at Guantanamo Bay, who have succeeded in generating incessant demands from international actors or for the base's closure or "for their own liberation," unquote. That's what was in their manual.
So, Mr. Rivkin laid out the al Qaeda lawfare game plan and their two objectives, and it seems to be coming to pass, just as the terrorists had planned. Isn't the administration's closure of GITMO and the removal of enemy combatants, possibly even in the United States, a complete victory of lawfare for al Qaeda? I mean, what else could they possibly ask for if this is in their book and we're following it to the letter? What more could they ask for us to do? And what's our plan next?
ATTY GEN. HOLDER: I don't think it's a victory. I think it'll be a victory for our country and a victory for the causes that we fight for by closing Guantanamo and taking from al Qaeda the ability to recruit and point to that place as a place where inappropriate things happen, true or not. I mean, that has become a symbol of practices that this administration has decided not to use.
As I said, also it will allow us to interact with our allies, in a way that we presently cannot, if we close Guantanamo. So I don't see the closing of Guantanamo as a victory at all for al Qaeda. I think it's going to be a victory for the American people and for our allies.
REP. FRANKS: Well, Mr. Chairman, my time is -- I'm out of time. But I certainly think al Qaeda sees it as a victory.
REP. COHEN: Thank you.
I recognize the gentleman who represents the Rose Bowl, Mr. Schiff.
REP. ADAM SCHIFF (D-CA): Thank you, Mr. Chairman.
And I thank the attorney general for the superb job you're doing.
None of these questions are easy or they would have been answered already. And what I find remarkable about some of the comments and questions that have been made about Guantanamo today is my colleagues on the other side of the aisle seem to assume that there's no risk inherent in keeping Guantanamo open, that somehow you can assure the American people that we can keep it open, we can detain people indefinitely, we can torture them if necessary, we can ignore the courts if possible, and somehow this won't have any adverse impact on the American people, what we stand for, or serve as a recruiting tool for people who want to attack us.
There is no simple answer here. And I appreciate the methodical way that your department and the Defense Department are going through each detainee by detainee to figure out what the proper recourse is procedurally, in what forum, et cetera. And I don't hear any suggestion, frankly, coming from my colleagues on the other side, any constructive suggestion, about what ought to be done with these people. So, anyway, I reiterate my interest in working with you and your office on these issues.
Today I wanted to just follow up a little bit on the DNA issue. When the FBI director testified last year before the CJS Appropriations Committee, where I also sit, I expressed concern that the existing backlog would increase with a new law that was requiring more samples than were taken before. And I was assured that the FY '09 request of $30 million would eliminate the backlog. And at subsequent meetings with the Justice Department last year, I was assured that that's all they needed. The backlog would be gone.
I think we maybe even made a wager over lunch or dinner, or maybe I said I would simply eat my hat if we didn't have a backlog a year later. The backlog is now much worse, I think, than it was a year ago. And I think it's going to require serious resources to get under control.
I appreciate the fact that the department has resumed funding backlog in terms of state and local governments, which are also having this problem. But I'd like to work with you also on addressing the DNA backlog, but also addressing a broader issue that a lot of the forensics capacity in the country, certainly on the state and local level, maybe on the federal level as well, is also hurting -- fingerprint labs, ballistic labs.
So it's not just the DNA issue. I think we're facing an aging infrastructure in terms of forensics, certainly an aging workforce, not a whole lot of new people going into the field. I'd love to work with you on those issues.
I had one very specific question in terms of the federal government's handling of DNA, and that is, I'm from Los Angeles. We have probably the biggest backlog anywhere. And in the case of rape kits, we have thousands of untested rape kits in Los Angeles, maybe as many as 10,000 between LAPD and LA sheriff's office. Some of those now are beyond 10 years old. And even if the evidence identifies the rapist, it may be barred by the statute of limitations. That's just an unthinkable situation.
They are now adopting new policies of testing every kit and not saying, "Well, we'll test some and not others." And I know that the incidence of rape on military facilities or on tribal lands -- the jurisdiction the federal government has is limited, but I wanted to ask whether the federal government has a policy of testing every rape kit for rapes committed on federal lands. And I don't know if you know the answer. If you don't, I'd love to follow up with you and make sure that that kind of policy is instituted.
ATTY GEN. HOLDER: I think it is a good policy. I don't know, frankly, if it is the policy of the federal government, but I will look into that and get you a written response. We'll get a response back to you. But I think the point you make is, in fact, a good one. Given the power of DNA evidence, you can -- just by doing that, you can solve crimes. And so I think that the testing of those kits makes an awful lot of sense.
REP. SCHIFF: Well, and we've seen, unfortunately, where there's been a delay in testing in particular rape kits. When they are tested and you're able to make a positive ID, we learn that in the interim, between the time the kit was taken and the time, years later, when it was tested, the suspect has gone on to rape other women.
Had you tested it promptly -- and I don't mean you, "you" -- but had law enforcement, it would have meant rapes not occurring and murders not occurring. And given the fact that the DNA is converted to a unique numeric identifier that doesn't betray information about hair color, propensity for colon cancer or anything like that, I think the privacy interests are much less, frankly, than the privacy interests of someone not to be raped or murdered. And I look forward to working with you on it.
Thank you, Mr. Attorney General.
ATTY GEN. HOLDER: I look forward to working with you as well.
REP. COHEN: Thank you, sir -- lawyers, rape kits and money.
I recognize the gentleman from Florida, Mr. Rooney.
REP. TOM ROONEY (R-FL): Thank you, Mr. Chairman.
You know, one of the advantages of being a freshman is that I get to listen to all my colleagues and get -- (inaudible) -- in front of about 30 times before it's actually my turn.
But thank you for your testimony and for your service to our country.
My questions are kind of open-ended. And the one thing that I am concerned about is you made the statement that we've only been here for a few months and that the president has ordered the closure of Guantanamo Bay within eight months.
Where are we exactly? And I know that you've talked about possibly Article 3 courts, possibly military courts. Where are we with regard to criminal procedure? And by the way, I want to thank you for offering that you would work with Congress to do -- help you with any of these procedures. And I, you know, want to express my willingness to help as we move forward. But where exactly are we? Because time is -- eight months is not that long. And when you're talking about 241 people that need to be moved by that closure, where exactly are we with regard to procedure?
ATTY GEN. HOLDER: Well, we are moving along with regard to those reviews. I don't have the precise number that we have completed at this point, but I think we're on track to have this done by -- within the time frame that the president has given to us.
But he's also given us an indication that, to the extent I need, we need, more people to do the job that he has set out before us, that we have that ability, so that we have about 80 lawyers now -- people, I guess, altogether -- who are involved in this process with regard to the detention review process. But if we need to put more people on it, we're prepared to do that.
REP. ROONEY: When that is established and we're moving forward, whatever that procedure may be, do you -- will you assume or speculate today that that standard, whatever, criminal procedure we use there, will be the same standard?
I'm just trying to get some kind of a response that there won't be this sort of haze or fog about where we are when we move forward. If there's detainees taken off the battlefield, that we pose a threat in Afghanistan or wherever, and they're not taken to GITMO, wherever they're used, what due process are they going to get? Is it going to be this same due process, or do you foresee that this is sort of a fluid --
ATTY GEN. HOLDER: That's actually an excellent question.
And one of the things that the president anticipated in forming that Detention Review Task Force, one of the things they are charged with doing is coming up with what are the standards going to be for people who are detained, going forward, be it in Iraq, Afghanistan, other places? How are we going to deal with those people? How are they going to be detained? What Rae the appropriate ways in which we should interact with them?
And so that task force has a responsibility of reporting back in July, but that is something that, as I said I think that's an excellent question and one that has caused the formation of a separate task force.
REP. ROONEY: Okay. And finally, you know I was down in Guantanamo Bay recently as have you been, and one of the things that kind of dawned on me as we were driving around there was that there's actually still building there. There's still dollars appropriated, and you saw the facility and what it's capable of. And I understand what your argument is about the recruitment tool and the stigma that Guantanamo Bay, Cuba, has psychologically world-wide. And I'm not going to debate on that.
But one of the things that kind of dawned on me is, one of the reasons for the stigma is possibly that as the gentleman from the other side of the aisle pointed out that they are detained indefinitely I believe as he was inferring without due process.
Assuming they do go through the due process in the next year, inevitably some of them are going to be found guilty or need continued detainment. Is there any consideration given to the possibility of Guantanamo Bay, Cuba, being reopened as a prison? I think that there is one person down there that's actually considered a prisoner out of the 241. Is there any consideration to Guantanamo Bay as a prison after due process? Or is that stigma so in crippling that that is not even in the cards either?
ATTY GEN. HOLDER: That is not something that has been discussed. I think that all the negatives that are attached to Guantanamo, inconsistent I think kind of with the Guantanamo that now exists, I think that stigma as you put it probably will still be attached to the facility. But as I said, we have not discussed the possibility of a continuing role for Guantanamo after January of next year.
REP. ROONEY: Thank you, Mr. Chairman. I yield back. Thank you, sir.
REP. CONYERS: Thank you, sir. I recognize Mr. Sherman from California, the Golden State.
REP. BRAD SHERMAN (D-CA): Thank you.
Five-and-a-half hours of talking about Gitmo under the lights in this building in this room strike me as well beyond what the Army Field Manual would allow. And so I'm going to ask you questions on a completely different subject. And that is the subject of your relationship with the other departments of the federal government, your colleagues in the cabinet, and what you should do or would do if you saw that those other cabinet departments were clearly violating the law. And there are a couple of instances I want to bring to your attention and that I hope that you would have your lawyers review to see if you agree with me that these are violations of the law.
The first is the Iran Sanctions Act which among other things requires the State Department to name those oil companies and others that are investing in the oil sector in Iran. Now for 10 years the State Department has refused to do so, explaining to me that our friends in Europe would be offended if they were to follow that statutory requirement.
Seems to me a deliberate failure to carry out the law would be something that the Justice Department would be concerned about.
The second issue is of more recent vintage and deals with the TARP, the bank bail-out bill, in which the secretary of the Treasury has announced that whatever monies are repaid by the banks will then be recycled into other bail-out expenditures or investments even though the statute is very clear that that money is supposed to go into the General Fund of the Treasury.
And so my questions for you are: will you have the Justice Department look at these two legal issues and get back to me? Will you inform your colleagues of the results of that review, and what action should your department take if it's not in your opinion a gray area that you see another cabinet official in the view of you and your lawyers just clearly failing to follow the law?
ATTY GEN. HOLDER: I'll certainly look at the two fact situations that you described, and we will get back to you with regard to an answer, and if there is a problem that we identify then share that concern or do more, whatever is appropriate, with the two other departments.
With your larger question, to the extent that we in the Justice Department see a legal deficiency that another department has, we will certainly share that view with them. Obviously to the extent that we saw crimes occurring in other departments we would investigate them. And that's why I think --
REP. SHERMAN: If a cabinet officer or sub cabinet officer just takes money that's appropriated for one purpose and spends it on another purpose or takes funds that are supposed to be in the General Fund or returned to the General Fund and just decides to do something else with it, obviously if they are in the gray zone, I mean different lawyers can differ on some things but we have to agree that some things are clear enough that you can say something is clearly a violation.
What penalties are imposed on a cabinet officer, and is Congress basically just an advisory body where cabinet officers can just do what they want and face no penalties for violating or failing to comply with statute?
ATTY GEN. HOLDER: I mean, every cabinet officer is responsible for obviously following the law, the regulations that exist, and to the extent there is a gray area and question, the Office of Legal Counsel at the Justice Department has been entrusted with the final say as to what the law is. If there is a dispute between State for instance and the Interior Department, State and Justice, I don't know, the dispute can be -- if it's a legal question, the Office of Legal Counsel can view the facts, apply the law, and then come up with a determination, issue an opinion.
But if somebody just ignores the opinion, or if in the predecessor administration there were people who did things that were clearly illegal and spent money that was clearly not appropriated by Congress for that purpose, are they civilly liable, criminally liable, or do we just sweep it under the rug?
ATTY GEN. HOLDER: Well, I mean, a lot of it is, some of those questions are fact-specific. You'd have to know, there is the possibility I suppose of personal liability. There's a question of personal criminal liability, there's a possibility of personal civil liability. There are potential institutional issues that just have to be worked out if in fact one of the institutions of government is conducting itself and has for years in a way that's inconsistent with statutes or regulations. And if brought to my attention then the President may have to get involved. Congress has the ability to conduct oversight hearings.
REP. SHERMAN: Well, oversight hearings don't actually force anybody to do anything. As to the two issues that you are going to resolve, I realize that the administration can waive imposing sanctions on companies that invest in the Iran oil sector, but they have to be publicly named. And as to the TARP legislation, I will get you my legal analysis, and you can tell me whether it's right or wrong.
ATTY GEN. HOLDER: That's fine.
REP. SHERMAN: Thank you.
REP. CONYERS: Thank you. Mr. Jordan from Ohio will graciously ask one question and then we're going to run up and vote, do the votes immediately, and if you are so inclined and willing to stay the people will run back here immediately, like Bob Hayes and get it over with. Thank you.
REP. JIM JORDAN (R-OH): Thank you, Mr. Chairman.
And Mr. Attorney General, thank you. I know you've been here long. I appreciate that.
Congress passed the Defense of Marriage -- I'll only just read this, but I've edited out some -- passed the Defense of Marriage Act of 1996, solid bipartisan vote, 342 to 67 in the House, 85 to 14 in the Senate. President Clinton signed it. Look, the Act makes clear that marriage is what marriage has always been. But this definition has been challenged in Federal District Court by GLAD, filed suit in March. We sent you a letter, 77 House members including the ranking member of this committee, myself, and many other members of this committee, the minority leader, sent you a letter back in March of this year seeking your assurance that you would vigorously defend the law in its entirety in accordance with the responsibilities of your office.
So in light of what we've seen happen recently in Iowa and in Maine just last week and here in the District with what the Council did relative to the institution of marriage, and frankly in light of President Obama's expressed opposition to this legislation, I just wanted to ask you about will you defend the constitutionality of this Act? Will you vigorously defend it? And if you so choose, your thoughts on the institution of marriage?
ATTY GEN. HOLDER: Well, I think we have, there's a case, I have to search my memory. I think we have a case that we are presently engaged in. I'd have to look at that. I might have to get back to you on that one. I'm not sure what the status of that case is. And so I'm not sure I'm able to answer the question about where the department stands with regard to the enforcement of the Act. But I think we have a pending case.
REP. JORDAN: Right, the case that was filed in March by the Gay Lesbian Advocates and Defenders, the GLAD case?
ATTY GEN. HOLDER: I think. I'm not sure.
REP. JORDAN: If you wouldn't mind -- we sent you the letter on March of this year -- responding to that letter and getting back to me on this question we would appreciate that.
ATTY GEN. HOLDER: Okay.
REP. JORDAN: All right. Thank you, Mr. Chairman.
REP: Thank you. And in the interest of domestic tranquility we will not ask you to give your personal definition of marriage, and we will return here. And if you would be so kind as to stay with us? In about 12 minutes. Thank you, sir.
ATTY GEN. HOLDER: Thank you.
REP. LOFGREN (?): I'd like to call the meeting back to order. And I recognize myself for five minutes. Mr. Attorney General, it's a pleasure to be with you. First of all, let me tell you that I truly believe that there is no one more qualified to serve as Attorney General --
ATTY GEN. HOLDER: Thank you.
REP. LOFGREN (?): -- thank you, and I was thrilled when you were nominated, and I feel confident that you can bring the Department of Justice back from ruin and politicization that we've endured for the last number of years.
In your prepared remarks you said that the department will serve the cause of justice and not just the fleeting interests of politics. And I know you've mentioned that you're committed to reinvigorating the traditional missions of the department which include fighting crime. And I personally couldn't agree with you more on both of those items.
What I'd like to talk about and ask you about is the department's commitment to pursuing child exploitation, particularly the exploding crisis of child pornography trafficking. Last year in this committee we heard evidence that law enforcement is able to identify more than 500,000 unique computers in the United States alone that are actively engaged in distributing videos and photographs of the rape and torture of young children. And those images include young toddlers and infants.
Conservative estimates indicate that at least one in three of these pornography trafficking suspects is also a hands-on abuser with real local child victims. I mean these are crime scene photos, not the traditional pornography as you know. We're talking about real children that are out there waiting to be saved.
And we have the technology to prevent child sexual abuse on a massive scale just by tracking child pornography traffickers. We also heard that last year fewer than 2 percent of those cases are actually being investigated.
ATTY GEN. HOLDER: Mm-hmm.
REP. LOFGREN (?): And that was due both to a lack of resources as well as the failure of the Justice Department to make it a priority. In 2008 I was proud to work with then Senator Joe Biden to pass the Protect Our Children Act into law, and that was signed into law last October. And there are a few key provisions that I wanted to focus on with you if you could help me with the department's plans.
The law authorized increased appropriations to the Internet Crimes Against Children Task Forces from the '08 levels of $15.9 million to $60 million. And as you know, the ICAC task forces are the backbone of our national capacity to combat this crisis.
In the '09 appropriations bill the ICAC funding was included in the bill for $70 million for NICNIC. Only $21 million of that though was allocated by Justice to the ICAC program.
Now in FY '10 that actually drops from $70, NCNC's budget was cut from $70 million to $60 million, and it's unclear how much of that is going to be dedicated to the ICAC funding. But knowing how poorly we were doing in investigating these crimes with $15.9 million, clearly if we have less than $15.9 million or even we have flat funding, to me that seems like the administration is also not going to make the Protect Our Children Act and pursuing child pornographers and child exploitation a priority. So could you tell us where you are on that issue and in particular the law also requires the creation of a national strategy for child exploitation and prevention as well as the appointment of a high level official within the OJ for child exploitation prevention.
So if you can tell us where you are on the appointment of that official and the development of the national strategy as well?
ATTY GEN. HOLDER: Okay. Thank you for your kind remarks. First with regard to the appointment of that official as directed by, I guess, the Protect our Children Act 2008, we are in the process of doing that, and I hope that I will have somebody relatively soon for that position.
The area that you have described is a priority of the department, and it's a priority of mine. When I was deputy attorney general one of the things that I kind of carved out as a responsibility of mine was the whole question of children and how they are impacted by, frankly ignored by, our criminal justice system. And one of the things I want to do as attorney general -- as I said I've only been there about three months or so, and it's been a lot of stuff, a lot of incoming -- as we get things more in place with more of our people in place, that is certainly one of the areas that I want to continue my work.
And it's interesting because I think you really hit an important point that it's different from the issues that were of concern to me when it came to children nine years or so, 10 years ago when I left the department, are different than the ones that now exist.
The Internet, a wonderful tool, is something that now it has been used to perpetrate, foment, keep going child pornography. And it's something that we have to dedicate ourselves to.
REP. LOFGREN (?): Well, we can't just think about child pornography in a bland, general sense. The type of, when we're talking about trafficking of child pornography, these are real child victims. The resources that we don't spend are the children that we don't save.
ATTY GEN. HOLDER: Right. I don't disagree with you. And you know I think that too often we focus on the Internet images without giving thought to the fact that these are images of real live human beings, real live children. And the question is, you've certainly got to focus on the Internet component, but then you also have to determine so, where is that child, what is happening to the welfare of that child?
And that is something that as I said will be a priority for this Justice Department.
REP. LOFGREN (?): Can I ask that whether you'll be committed to making sure that we can fully fund the Protect Our Children Act going forward? And make sure that we can get the resources? Because literally it is the resources that are going to make sure that we can fund the ICAC network, get the law enforcement investigations going, and get -- I mean, we know that we can rescue a child in at least 30 percent of the time if they are given the resources to investigate.
ATTY GEN. HOLDER: I mean, I will fight. You know, there are lots of people have different priorities. But when I identify as my small list of priorities the things that I need to have fully funded, and if I'd make this one of them and I will, my hope would be that I'll have a responsive OMB listening to me.
REP. LOFGREN (?): Thank you. And just before, my time has expired, but there's one more piece of this. It's nice to share the chair of the committee. But the last piece of my question is on the national ICAC data network, because apart of the law called for the creation and proper funding of that. It's a law enforcement controlled platform, because we don't want to let the ICAC data network move into the private sector. We need it to remain as a public backbone. Right now what's occurred apparently is that the department, the Office of Juvenile Justice, Delinquency Prevention put out a solicitation to create the system before the appointment of the high level official and prior to the appointment of the steering committee that is mandated by the law.
So there's, we're going to move forward with that before there's any coordination, any development to the plan or the high level official is in place. So is there any way to delay that so that we can have the other things in place first so that this can be the coordinated effort that we had intended when we passed the law?
ATTY GEN. HOLDER: Okay. That's actually a good point. Let me look into that. Obviously I think there is a responsibility on my part to appoint that person and will do so as quickly as we can, and I think you raise a legitimate concern about not putting in place the very things that person is supposed to coordinate.
REP. LOFGREN (?): Exactly.
ATTY GEN. HOLDER: So let me look into that, and we will get back to you both with regard to the name of the person and how we're going to proceed in formulating the plan.
REP. LOFGREN (?): Thank you so much.
The gentleman from New York is recognized for five minutes.
REP. DAN MAFFEI (D-NY): Thank you very much, Madame Chairman.
Mr. Attorney General I also want to echo my colleagues in thanking you for your service at a very crucial time. We needed an attorney general with your kind of background who would be able to reestablish accountability and veracity in the office. And I very much appreciate you being here today also. I know it's late.
One thing that has been brought to my attention by a number of constituents is the issue of some of the immigration raids that have occurred across the country. And I know that this is mainly the Immigration Customs Enforcement and therefore falls mostly under the Department of Homeland Security's jurisdiction. However, in some of these reports have been quite disturbing and do have aspects that might concern the Department of Justice.
I've been told of a number of cases in which ICE agents have boarded buses in Syracuse, Rochester, Buffalo and other upstate New York communities and targeted people based on their ethnicity or skin color for searches. In some cases agents have waited outside the bus stations and singled out those who appear to be Hispanic. These people are often detained and questioned. In some cases they are even taken into custody.
A large number of these people are legal immigrants, and many searched and detained are citizens of the United States entitled to the same constitutional protections that you or I are.
Are you at all aware of this practice either occurring now or having occurred in the prior administration?
ATTY GEN. HOLDER: I'm not aware of those specific procedures you've talked about. On the other hand there is I think clearly a need for vigilance in that area, and there's also a need for coordination between DHS and DOJ with regard to this whole question of immigration enforcement. Too frequently in the past I think DHS has done things without regard to the impact it has on Justice Department resources. The Justice Department is not maybe communicated as well with DHS as it should have. Secretary Napolitano and I have tried to sit down and talk about a whole variety of immigration issues, worksite enforcement, how ICE conducts itself.
And I think what we're going to be in a better place. But the concerns that you raise about the procedures that you mentioned are very legitimate, and inappropriate.
REP. MAFFEI: Certainly that would not be the policy of this administration?
ATTY GEN. HOLDER: No, it would not.
REP. MAFFEI: I appreciate that answer and your work with Homeland Security particularly in this area. If it comes to my attention that these raids are still occurring, how should I proceed? Should I get in touch with Secretary Napolitano only or because there's some civil rights concerns here is it also under the auspices of the DOJ as well?
ATTY GEN. HOLDER: Well, I will leave to you, Congressman, how you decide to do that. But I would suggest on the basis of what you said in the latter part of your answer about the civil rights concern that perhaps a letter that went to both of us might be appropriate, because I think it's the kind of thing that Secretary Napolitano and I would want to discuss, we'd want to talk about. I mean she and I go back a long ways when we were U.S. Attorneys together in the Clinton administration.
And I think it would be something we would probably both want to look at.
REP. MAFFEI: I appreciate that. I too believe that this administration will be taking a very, very different approach in terms of tactics, I believe a more effective approach by the way both for reducing undocumented immigrants, but also preserving American civil liberties and all people's human rights. However, I am concerned just bureaucratic inertia. And so I would appreciate any help or assistance your office could provide us in the Congress as we try to identify and let you know in the administration about these instances.
ATTY GEN. HOLDER: That would be fine. I look forward to working with you in that. I hope that there won't be other instances along the lines of the ones that you have described. But to the extent that you come into possession of that kind of knowledge I would hope that you'd share it with me and also with Secretary Napolitano.
REP. MAFFEI: I really thank you for your answers.
ATTY GEN. HOLDER: Thank you.
REP. MAFFEI: I yield back the balance of my time.
REP. : Well, thank you. I want to thank the attorney, Mr. Attorney General. I want to thank you for your courtesy and your time you've spent with us which has been quite generous. And that concludes our questioning. Without objection members will have a minimum of five legislative days to submit additional written questions as if you need such, and we'd appreciate you being kind enough to answer those as promptly as you can. They will be made part of the record.
Without objection the record will remain open for five legislative days for the submission of any other materials. This has been useful in our efforts to ensure that the nation's premier law enforcement agency is dedicated to being a shining example not only to how effectively it pursues its cases but equally how it respects the fundamental questions and issues of freedoms and law in our country. We are like Caesar's wife, the Justice Department, shouldn't it be and will be beyond reproach.
And with that, this hearing is adjourned.