Witness: Attorney General Eric Holder
Chaired by: Senator Patrick Leahy (D-VT)
Copyright ©2009 by Federal News Service, Inc., Ste. 500, 1000 Vermont Ave, Washington, DC 20005 USA. Federal News Service is a private firm not affiliated with the federal government. No portion of this transcript may be copied, sold or retransmitted without the written authority of Federal News Service, Inc. Copyright is not claimed as to any part of the original work prepared by a United States government officer or employee as a part of that person's official duties. For information on subscribing to the FNS Internet Service at www.fednews.com, please email Carina Nyberg at email@example.com or call 1-202-216-2706.
SEN. LEAHY: Good morning. And I was talking with Senator Sessions just a couple of minutes ago. Like so many of us, he has to vote in another committee. And I told him, for the traditional opening statement, the ranking member, once he arrives, we will yield to him. But as he said, he had no objection to us going ahead.
And I do welcome Attorney General Holder back to the Senate Judiciary Committee. I do enjoy welcoming him as attorney general and not as the nominee for attorney general.
And I want to commend you, Mr. Attorney General, and your team for your hard work and your commitment to the task, absolutely vital task in this country, to restore the Department of Justice back to being the Department of Justice. And we've all talked -- and both sides of the aisle thought the political manipulation that had occurred previously with the Department of Justice, particularly in its law enforcement/civil rights functions, that struck a devastating blow to the credibility of federal law enforcement; actually undermined people's faith in our system of justice, something -- if that happens in a democracy, it can be almost a fatal blow to democracy.
And so you've been given the job of restoring that trust, and I thank you for the start. You've recommitted the department in aggressive investigation and prosecution of mortgage and financial fraud. I'm confident you will implement the Fraud Enforcement and Recovery Act, which was signed into law by the president a few weeks ago, and backed by virtually everybody on this committee.
The attorney general also recognizes the need to include federal assistance to state law enforcement, and the Economic Recovery Act is now working hard to get needed resources to our states and our cities and our towns to keep our communities safe and to strengthen economic recovery.
It's my hope that the Justice Department will work with this committee, with the Judiciary Committee, on such important issues as the state secrets privilege, shielding members of the press from being forced to reveal their sources, passing hate crimes legislation, and effectively cracking down on health care fraud.
In addition, our subcommittees are hard at work on a wide range of issues, ranging from comprehensive immigration reform to the reauthorization of the Patriot Act. I've made no bones of the fact that I've been troubled to see the continuation of the Bush administration's practice of asserting the state secrets privilege in an attempt to shut down lawsuits. I believe that accountability is important, and access to the courts for those alleging wrongdoing by the government is crucial.
I support making use of the many procedures available to the courts to protect national security, rather than completely shutting down important cases without true judicial review.
I hope, Mr. Attorney General, you will work with me and others on this committee to find a mutually acceptable solution to what I see as an unacceptable situation.
An issue on which I believe Attorney General Holder has shown great courage in the face of political pressure is his commitment to the process of safely and effectively closing the detention facility at Guantanamo Bay. I think this step will bring to an end a disgraceful period in our country's history, but also, more importantly, will help restore our commitment to the rule of law and our reputation in the rest of the world.
I believe strongly that we can ensure our safety and security. We can bring our enemies to justice. We can do it in ways that are consistent with our laws and our values. When we stray from that approach, when we torture people in our custody, when we send people to other countries to be tortured or hold people for years without even giving them the chance to go to court even to argue that "Look, you picked up the wrong person," then we've hurt our national security immeasurably.
Changing our interrogation policies to ban torture was an essential first step. Shutting the Guantanamo facility down and restoring tough but fair procedures, I think we can restore our image around the world. And we have to do that if we want to have a strong national security policy.
Recent debate has focused on keeping all Guantanamo detainees out of the United States. I believe, in that debate, political rhetoric has drowned out reason and reality. Our criminal justice system handles extremely dangerous criminals and more than a few terrorists, and it does so safely and effectively.
We are the most powerful nation on earth. We ought to be able to handle the worst of criminals. We've tried very dangerous people in our courts. We hold very dangerous people in our jails and prisons, in the little state of Vermont and throughout the nation.
We've tried terrorists of all stripes in our federal court system. Think of Oklahoma City bomber Timothy McVeigh or Sheikh Omar Abdel Rahman and others that planned the 1993 Trade Center bombing, to Zacarias Moussaoui.
As Senator Graham on this committee, an experienced military prosecutor himself, said recently, quote -- I quote Senator Graham -- "The idea that we cannot find a place to securely house 250-plus detainees within the United States is not rational." We spend billions of dollars on high-security facilities. We can do that.
Key questions remaining for long detention and military commissions, both of which are being discussed by the administration, carry with them the risk of abuse. And I expect, Attorney General, that you and President Obama to face these issues with the same commitment to our Constitution, our laws and our values, the same dedication to security that you and the president have shown so far. I trust you will work with us to find the right solutions to these problems.
Another area we have to rapidly come together is the sadly resurgent problem of hate crimes. Last week's tragic events at the Holocaust Museum, together with other recent incidents, have made it all too clear that violence motivated by bias and by hatred remains a serious problem with tragic real-world consequences.
Senator Kennedy and I, together with a strong bipartisan group of co-sponsors across the political spectrum, have once again introduced a bill that will take substantial important steps to strengthen our enforcement of hate-based violence. It is crafted with due consideration of the First Amendment, so only those who engage in brutal acts of violence will be culpable. It's been stalled too long. I believe it's now time to act. I know that you have supported this. I know the president has.
You've made important steps toward ensuring a more open and transparent government. You've implemented a much-improved Freedom of Information Act. Senator Cornyn and I have worked together on this for years, and I hope the direction will continue.
I've thrown out a whole lot of things, but I think it's an important hearing. And I was talking a little bit longer than I was going to because I was waiting for Senator Sessions to come back. He is here. And I'll put my full statement in the record.
I yield to Senator Sessions.
SEN. JEFF SESSIONS (R-AL): Thank you, Mr. Chairman. And I appreciate the opportunity to discuss with you some of the details of the confirmation hearing for Judge Sotomayor, and maybe we can develop a good plan for that.
Attorney General Holder, I'm glad you're here today to address the committee as we fulfill our oversight responsibility for the Department of Justice. The department plays a critical role in protecting the rule of law and preserving national security, and it must be free from political pressures and ideological excess.
Mr. Holder, I supported your nomination to be attorney general. I think I was a minority in my party that did so. But I did so because I believed that your previous experience within the department would serve to elevate the department and its mission above politics and bad policy. And I was assured by your promises during the confirmation process to that effect.
So it is difficult for me to tell you this. I am disappointed. During your confirmation hearing, you promised to adhere to the Constitution and put the rule of law over political or other considerations. You said you had learned from the past and that you would not return to pre-9/11 criminal law concepts in protecting the American people from terrorist attacks. You told Senator Lindsey Graham that you agreed with him that, quote, "Every person who commits to going to war against America or any other peaceful nation should be held off the battlefield as long as they are dangerous," closed quote.
And I don't think the actions that we've seen so far are consistent with that commitment. Since your confirmation, you've done a number of things, I think, that you pledged not to do. Time and again, I find myself reading about political appointees who have overruled career department attorneys to further some agenda or left- wing activity.
One such incidence came when you rejected the Office of Legal Counsel on its conclusion that Congress's recent legislation on the District of Columbia voting was unconstitutional, as it appears plainly to be.
So during your confirmation hearing, you emphasized that your view of OLC opinions would not be a political process. So when OLC, the Office of Legal Counsel, who's assigned this responsibility, had prepared an opinion for you that said the Congress's legislation was unconstitutional, I would expect you to listen to their opinions and follow them or explain precisely why you do not.
Instead you moved around them and sought a second opinion from the solicitor general's office, an office that's really required to defend whatever is passed, and asked them what kind of -- asked them for their legal advice.
You, again, I think, followed pressure from the left to override common sense when you allowed the Department of Justice to release OLC opinions regarding interrogation, even though high-profile members of the intelligence community warned you that it was unwise to do so.
Former Attorney General Michael Mukasey, a former federal judge who's tried terrorism cases, and CIA Director Michael Hayden wrote a joint op-ed in The Wall Street Journal stating that the release of the memos would be, quote, "unnecessary as a legal matter" -- and I think they're clearly correct there -- and, quote, "unsound as a matter of policy." And I think that's correct.
They predicted that the effect of the memos' release, quote, "will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence-gathering in the past and that we came sorely to regret on September 11th, 2001," closed quote.
The lawful and wise thing to do would have been to keep -- would have been to keep our secrets secret. Yet you did not. Instead you've now given a critical piece of information to our enemies.
Just in the last three weeks, I received word again that on May 29th, the Washington Times has reported that the Department of Justice voluntarily dismissed a case against three Black Panther members for voter intimidation outside a polling place in Pennsylvania. In that case, three Black Panthers wore military-style uniforms, were armed with a night stick, and used racial slurs to scare would-be voters at the polling location.
Vardell Bull (sp), a long-time civil rights activist, called the conduct, quote, "an outrageous affront to American democracy and the rights of voters to participate in an election without fear," closed quote.
DOJ had been working on the case for months and had already secured a default judgment on April 20th, 2009. Inexplicably, political appointees at the DOJ overruled career attorneys, dropped the case, dismissing two of the men from the lawsuit entirely with no penalty, and winning an order against the third man that simply prohibits him from bringing a weapon to future elections, something that's already prohibited.
Instead of supporting the career attorneys who fought to protect the civil rights of voters in Pennsylvania, the political officials in the Department of Justice wiped out their good work. This flies in the face of your statement at your confirmation hearing about career attorneys at the department, that you would, quote, "listen to them, respect them and make them proud of the vital goals we will pursue together," closed quote.
It also, I think, contradicts your statement during your confirmation hearing that, quote, "the Justice Department must also defend the civil rights of every American," closed quote.
Another concern that this committee raised with you during confirmation was whether you would operate under pre-9/11 criminal law mindsets when fighting terrorists. You assured the committee that you learned from the past, that you would do your best to aggressively continue the war on terror. In fact, you listed as your first priority as attorney general that you would, quote, "work to strengthen the activities of the federal government and to protect the American people from terrorism." Yet instead of taking the lead in protecting the American people, you have enacted some poor policies and stayed silent on other issues of importance.
One primary example of this pre-9/11 mind-set is a recent report that the Obama administration is requiring that enemy combatants in Afghanistan be given Miranda warnings. Last week Michigan Congressman Mike Rogers revealed the administration had begun administering Miranda rights to any combatants detained in Afghanistan.
Just this March, in a "60 Minutes" interview, President Obama mocked the giving of Miranda warnings to enemy combatants. He said, quote, "Now, do these folks deserve Miranda warnings? Do they deserve to be treated like a shoplifter down the block? Of course not," closed quote. So what has changed in three months?
The administration's new Miranda approach to battlefield detainees will inevitably hamper intelligence-gathering in the war on terror, even if the new approach is something founded and intended to preserve a federal court criminal prosecution, which is not necessary because we can use and should use and historically have used the military commission for battlefield captures.
Under the Obama administration's global justice initiative approach, even captured high-level al Qaeda operatives may be advised that they may remain silent and seek counsel before talking. According to Congressman Rogers, this has already begun to have an adverse affect. The International Red Cross has begun advising detainees, "Take the option. You want a lawyer." The Weekly Standard reported, quote, "In at least one instance, a high-level detainee has taken that advice and requested a lawyer rather than talking."
Likewise, the American people remain in limbo as they have waited for your word about whether detainees at Guantanamo would be transferred into the United States. I think we got a letter from you either last night or this morning on that, finally. The solution that you have suggested -- the solutions, I think, have -- are dangerous. In March, you said some of the detainees could be released into the United States. A few days later, the director of national intelligence expanded your statement to say, quote, "Some sort of public assistance for them is necessary to start a new life." The American people know -- deserve to know what the plan is and how you're going to protect national security.
I think you should have weighed in on the dangerous legislation such as the State Secrets Act and the media shield law that has been opposed by your predecessors. And you have stood silent on bills that need to be passed this year, such as the reauthorization of the PATRIOT Act. We need your support on that. So I think you need to take the lead on a number of these areas.
So, Mr. Holder, I am disappointed, and I'm worried. I don't think the people -- American people are happy with the agendas that we're seeing now. I think these are very serious matters. When the Office of Legal Counsel attorneys told you something was unconstitutional, I think -- I'm not happy that you ignored that and went around them. When security officials came to you and said we should keep our interrogation methods confidential, you said no. When the civil rights of Americans were trampled on by members of the Black Panthers at the voting place, you let the offenders get away. And as the American people look to you to lead in the war against terrorism, you have remained too silent. You even granted the release of dangerous detainees, including Jose Padilla's alleged accomplice and another detainee who reportedly killed an American diplomat.
These are -- there are some things that you are doing I think that deserve commendation. Your department has defended the nation's secrets this year at least three times in federal courts by invoking the state secrets privilege. That's something you need to do and is right. In standing up for our nation's secrets, you faced a lot of criticism, I know, from the left. But I think you did the right thing.
I'm encouraged that you listened to members of Congress and the intelligence community to oppose the release of interrogation photos. I thought that was an awfully unwise thing. The release of these photos is not necessary and it will place American soldiers at greater risk.
So even though I'm disappointed by your long delay in answering my question about the Uighurs, I am encouraged that you understood that there was not a legal authority to release them into the United States.
So I said -- as I said at the time of your confirmation, I respect you. You know this department well. I support you. I want you to succeed. I want to do what I can to help you. But some of these decisions you made are baffling to me. I don't think they're good. I think they'll set a precedent for the future that is also not good.
I love the Department of Justice. I spent 15 years in it. I have the highest ideals for it. I hope that you'll begin to evaluate some of these matters more critically. And sometimes you're going to have to tell people in the administration no, as you and I discussed in your confirmation.
So I look forward to your testimony today. You'll be given full opportunity to respond. And I want to tell you again, I believe we can work together on some important things, but I am troubled at this time.
SEN. LEAHY: As you may have gathered, Attorney General Holder, there is a somewhat differing views by the -- by the two leaders of this committee. But we'll let you speak for yourself. Please go ahead. And your full statement will be made part of the record, but go ahead with this.
ATTY GEN. HOLDER: Good morning, Chairman Leahy, Ranking Member Sessions and members of the committee. Thank you for the opportunity to appear before you today to highlight the work and the priorities of the United States 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 we do.
In the four and half months that I have been in office, we have begun to pursue a very specific set of goals -- working to strengthen the activities of the federal government that protect the American people from terrorism within the letter and spirit of the Constitution, working to restore the credibility of a department badly shaken by allegations of improper political interference, and reinvigorating the traditional missions of the department in fighting crime, protecting civil rights, preserving the environment and ensuring fairness in the marketplace.
Now, before answering your questions, allow me to talk briefly about several of our current initiatives. I've also provided more detail on each of them in my written statement.
The highest priority of the department is to protect the American people against acts of terrorism. Working with our federal, state and local partners, as well as international counterparts, the department has worked tirelessly to safeguard America and will continue to do so. We will continue to build our capacity to deter, detect and disrupt terrorist plots and to identify terrorist cells that would seek to do America harm. And we are committed to doing so consistent -- consistent with the rule of law and with American values.
Consistent with our commitment to national security as the department's number one priority, we are leading the work set out by the president to close Guantanamo and to ensure that policies going forward for detention, interrogation and transfer of detainees live up to our nation's values. Congress has expressed strong views on this subject in the supplemental appropriations bill and elsewhere. We will continue to work with the legislative branch to ensure that the appropriate disposition of individuals currently detained at the Guantanamo naval base occurs.
The department has developed and begun to implement a multi- pronged approach to confront the threat posed by the Mexican cartels and to ensure the security of our southwest border. Addressing the southwest border threat has two basic elements: policing the actual border to interdict and deter the illegal crossing of contraband goods and confronting the large criminal organizations operating on both sides of the border. Our strategy involves using federal prosecutor- led task forces that bring together federal, state and local law enforcement agencies to identify, disrupt and dismantle the Mexican drug cartels through investigation, prosecution and extradition of their key leaders and facilitators and seizure and forfeiture of their assets.
The department is also fully committed to defending the civil rights of every American. And we are rededicating ourselves to implementing the range of federal laws at our disposal to protect rights in the workplace, the housing market and in the voting booth. I have made restoring the proper functioning of the Civil Rights Division a top priority for this Justice Department.
Now, as many Americans face the adverse effects of a devastating economy and an unstable housing market, the administration announced a new coordinated effort across federal and state government and private sector to target mortgage loan modification fraud and foreclosure rescue scams. The new effort aligns responses from federal law enforcement agencies, state investigators and prosecutors, civil enforcement authorities and the private sector to protect homeowners seeking assistance under the administration's "Making Homes Affordable" program from criminals looking to perpetrate predatory schemes.
I appreciate the committee's work in enacting the Fraud Enforcement and Recovery Act, which will enhance the department's criminal and civil tools and resources to combat mortgage fraud, securities and commodities fraud, money laundering, and to protect taxpayer money that has been expended on recent economic stimulus and rescue packages. With the tools and resources that the bill provides, the department and others will be better equipped to address the challenges that face this nation in difficult economic times and to do their part to help the nation respond to this challenge.
In addition, the department has been investigating and prosecuting financial crimes aggressively and has been very successful in identifying, investigating and then prosecuting massive financial fraud schemes, including securities and commodities market manipulation and Ponzi schemes.
As part of the administration's ongoing commitment to fiscal responsibility and accountability, the department is working with the Department of Health and Human Services to combat the tens of billions of dollars that are lost every year to Medicare and Medicaid fraud. Those billions represent health care dollars that could be spent on services for Medicare and Medicaid beneficiaries, but instead are wasted on fraud and abuse.
The secretary of Health and Human Services, Kathleen Sebelius, and I have launched a new effort to combat fraud that will have increased tools, and resources and a sustained focus by senior leadership in both of our agencies. We recognize that health care fraud has a debilitating impact on our most vulnerable citizens -- the elderly and those in long-term care facilities.
Our Elder Justice and Nursing Home Initiative coordinates the activities of our attorneys and agents throughout the country to better understand and address the abuse, neglect and financial exploitation of these victims, and to bring to bear the full weight of my department to ensure that these types of crimes are prevented and/or prosecuted.
And finally, the American Recovery and Reinvestment Act of 2009 included $4 billion in Department of Justice grant funding. This funding is being used to enhance state, local and tribal law enforcement efforts, including the hiring of new police officers to combat violence against women and to fight Internet crimes against children. In addition, it will help reinvigorate the department's traditional law enforcement missions, a key element of which is partnerships with local, state and tribal law enforcement agencies, and is vital to keeping our communities strong.
Chairman Leahy, Ranking Member Sessions and members of the committee, I want to thank you again for this opportunity to address the Department of Justice's priorities, and I'll be pleased to answer any questions that you might have. Thank you.
SEN. LEAHY: Thank you very much.
And, incidentally, there was some mention of the new Black Panther Party. I understand the career attorney in the Department of Civil Rights Division made the final decision regarding which defendants to charge and which defendants to dismiss. That's a career employee, (who ?) was there during the Bush administration and past administrations.
I just thought I'd point that out so that it doesn't end up -- I just want to have the facts here. And I'm also glad the department has decided to seek an injunction and civil penalties against the person who was charged with intimidating. Again, career decisions being made.
It would be helpful if we had the president's nominee in the Civil Rights Division. And I would also note that we don't have that, to make these kind of decisions, because the -- my friends in the Republican Party have, so far, held up that nominee from confirmation. I want to make sure we have accurate views of what's happening.
Last week's tragic shooting at the Holocaust Memorial Museum here in Washington reminded us of the ongoing serious problems of violence motivated by bias and hatred. Certainly, the reports I received, both in open sources and in classified areas show that the number of hate groups is growing and their positions are hardening. I think we have to strengthen the hand of law enforcement to respond to these very vile threats, vile crimes.
A report issued yesterday by the Leadership Conference on Civil Rights Education Fund noted an increase in hate crimes in recent years linked to rise of extreme anti-immigrant rhetoric on the Internet and throughout the country. In this great country of ours, it is a blot to see these hate crimes. We should do everything we can to stop them.
The Matthew Shepard Hate Crimes Prevention Act of 2009 would give federal, as well as state and local law enforcement additional tools to prosecute hate crimes. It's long overdue. We owe it to the memories of Officer Stephen Johns, the murdered guy at the museum, and Matthew Shepard, and so many others.
Do you agree that this Hate Crimes Prevention Act that we've had pending for some time is a good tool for investigators and prosecutors?
ATTY GEN. HOLDER: Absolutely, Mr. Chairman.
If there was ever a doubt about the need for this legislation, I think that has been pretty much done away with by the events that we've seen in our nation, here in Washington, D.C.; what we saw in Kansas; and what we all saw in Arkansas as well. Also, if you look at these statistics that indicate there has been a rise in hate crimes over the last few years, I'm particularly troubled by the amount of hate crime violence that has been directed at Latinos.
Ten years ago I testified in favor of this bill, which is, I think, limited in its scope but rational in what it is trying to do. It expands the scope of the federal hate crimes legislation to include gender, disability, sexual orientation, and does away with what I believe are unnecessary jurisdictional requirements and would allow the federal government to assist state and -- our state and local counterparts in prosecuting and investigating these offenses.
I think the time is right, the time is now for the passage of this legislation.
SEN. LEAHY: Thank you.
Last year we passed the Foreign Intelligence Surveillance Amendments Act of 2008. I had objected to it because I felt there was a lack of adequate protections in it. Today, The New York Times is reporting that the National Security Agency is violating even the very permissive standards imposed by our correction authorities. It's collecting and reading immense numbers of e-mails to and from United States citizens -- being done without any warrants. It calls to mind the abuses that we discovered in the FBI's use of "national security" letters.
How do we -- I mean, I don't know how we justify continuing these expansive authorities, whether it's FISA, or the search powers authorized by the Patriot Act, when they're being -- even the expanded authorities are being abused this way.
What's the department -- what's the Justice Department doing, looking into these reports of abuse?
ATTY GEN. HOLDER: Well, the department works closely with our partners in the intelligence community to ensure that national security is conducted in a way that's consistent with the legal authorities that are designed to protect privacy and our civil liberties.
There's a framework, I believe, that we always try to follow. Congress establishes statutory safeguards in a variety of statutes, among them, FISA. The Department of Justice and the intelligence agencies follow really strict regulations when we actually do this surveillance. There are strict policies and guidelines --
SEN. LEAHY: But, the article today, and the concern I have is that we -- more and more we find out about these kind of abuses not from the intelligence agencies, not from our government, but by picking up the newspaper. I mean, we're reaching a point where: mark The New York Times "top secret;" and we get the information quicker; we get it in more detail; and get the crossword puzzle.
I mean, what are we doing to go after that? Because if this continues, I don't know how we reauthorize any of these things if they're going to be abused that way.
ATTY GEN. HOLDER: Well, the department and the intelligence agencies take very seriously the requirements that we're supposed to follow. In at least a couple of instances, where their problems were detected by those -- (inaudible) -- the department. We halted the programs; informed the FISA Court; informed members of the Intelligence committee, members of this committee about what we'd found; corrected the problem. And only after all those things had occurred did I reauthorize the beginning of the program again.
Now, I've not had a chance to review in any great detail the article that appeared in The New York Times --
SEN. LEAHY: Well, I wish you would, because we've also -- I wrote to you about three months ago and asked you to provide the department's legislative proposals for extending or modifying the Patriot Act authorities. We really need that answer. It's been raised on both sides of the aisle. If we're going to reauthorize it, we want to know what the department wants.
And I would hope that you would look at this article. I thought it was very troublesome, because I've heard similar rumblings and it's the first time I've seen it in any kind of detail. If the article is accurate, then we have some real problems. And we want us to be -- (inaudible) -- we want us to be able to use the abilities to gather intelligence, but we also want Americans -- who aren't subject of any criminal investigation or terrorist investigation, to at least feel that can send e-mails back and forth to their families, to their friends, to their businesses without it being read by somebody who's just having fun doing it.
You know, we had similar things when we saw the IRS look into people's reports because of interest, and this goes way beyond that. And I hope you will look into it. And I would also hope you will redouble your efforts to work with me on a media shield bill.
And I've gone over my time. I yield Senator Sessions. But, it is a -- I don't know, did you want to respond to any of that?
ATTY GEN. HOLDER: Well, I think what I would say is that was what a Patriot Act reauthorization -- I know that some members are frustrated at the lack of a position, at least at this point, with regard to those measures. And I think that what we've seen in the paper today is an indication of at least some of the things that we need to look at and consider.
And one of the reasons why I think we've not yet settled on a firm position, we want to take into account how these measures have been used; see if there are issues, problems with the way in which they have been used before we take a final position. I know they don't expire until December, and I know the time grows short, but to base our position on as much experiential information as we can, I think, is what -- is a wise course.
SEN. LEAHY: Mr. Sessions.
SEN. SESSIONS: Mr. Chairman, (I) just would say that, with regard to these intercepts, that legally I don't think there would be any difference between intercepting an e-mail, as part of a legitimate foreign intelligence operation, than intercepting a telephone call. And there's no exceptional preference due one or the other, it seems to me. And we have wide authority to do that in foreign intelligence, dealing with foreign intercepts.
SEN. COBURN: Mr. Ranking Member, would you mind yielding? I read the New York Times article this morning. I do sit on the Intelligence Committee, and I will assure you there are inaccuracies in that report, and the assumption that it's right is an erroneous assumption.
SEN. LEAHY: Well, as the senator knows, I said -- in my question I asked him if the article is right.
SEN. COBURN: It's not -- (off mike).
SEN. LEAHY: Well, I'd like to hear this from the attorney general.
SEN. SESSIONS: Thank you, Senator Coburn. I would offer for the record Senator Grassley's statement. And, Mr. Holder, I've been disappointed to have it be -- have you late in responding to my letter about the Uighurs. He specifically says that he has three letters that have gone unanswered by the department and he has serious concerns about that. I'm sure you'll wan to address that.
Mr. Chairman, I would just briefly note, with regard to the hate crimes legislation, that I would suggest we should have a hearing on that. It's a matter that's worthy of attention. And I would offer for the record a June 16th, 2009 letter from the United States Commission on Civil Rights.
I believe six of the eight members signed it, and they say -- they write to us and the president and vice president urging that we vote against the Hate Crimes Prevention Act. They think it will do, quote, "little good and great harm." So I'd offer that for the record, and hopefully we'll be able to do that and not just have it pop up on legislation on the floor.
Mr. Holder, on January 22nd, President Obama signed an executive order to establish procedures to close the Guantanamo detention facility and to review the case of every detainee to determine whether the detainee should be transferred, released, prosecuted or handled in some other way.
The executive order makes clear that you, as the attorney general, the person responsible for coordinating the review, and I guess the other agencies of the government too, do you agree that as the person in charge of it, this Guantanamo task force, you bear responsibility for the release or transfer of detainees from Guantanamo Bay?
ATTY GEN. HOLDER: I mean, I think I bear responsibility along with my other -- the other Cabinet members who make up the Principals Committee, but I think I am primarily responsible for it, yes.
SEN. SESSIONS: They're looking to you to coordinate at least and follow the consensus or set the agenda. The administration has released or transferred some controversial figures already without any form of military commission or criminal trial.
For example, on Friday the administration transferred Ahmed Zuhair to Saudi Arabia. Zuhair is allegedly responsible for the murder of William Jefferson, a U.S. citizen and diplomat, in 1995, planting a car bomb in the Mostar, Bosnia in 1997, and the involvement with the attack on the USS Cole. Did you approve the release of Zuhair to Saudi Arabia?
ATTY GEN. HOLDER: I did, as did the former administration. He was approved for release by the Bush administration. The determination that we made was that there was not sufficient proof to bring a case against him. And also he was transferred, not released -- transferred to Saudi Arabia, where he will be subject to judicial review, and in addition to that, to the reeducation program that they have.
SEN. SESSIONS: Was that based on a question of evidence that could not be utilized? I understand there were -- military intelligence showed that Zuhair was responsible for the shooting death of William Jefferson when he was a diplomat to Bosnia. Was there evidence that you felt were inadmissible to make this case?
ATTY GEN. HOLDER: No, the determination that we made was that there -- and I think consistent with the Bush administration -- that there was insufficient proof to tie him to those very serious and regrettable crimes. It wasn't a question of the admissibility of the evidence; it was more with regard to the sufficiency of it.
SEN. SESSIONS: Another detainee, Binyam Mohamed, reportedly received instructions directly from Khalid Sheikh Mohammed, and is believed to be Jose Padilla's accomplice in the al Qaeda plan for a second wave of attacks after 9/11. Military commission charges against Mohamed tie him to a plot to blow up high-rise apartment buildings and explode a dirty bomb in the United States. Did you approve his release?
ATTY GEN. HOLDER: The releases that have occurred have all been done with my approval. I take responsibility --
SEN. SESSIONS: And were you aware of the serious allegations that he was involved with -- facing?
ATTY GEN. HOLDER: In the determinations that we made. We made the conclusion that with regard to any charges or allegations that had been lodged against people, that there was insufficient proof to bring those cases. Anybody who poses as danger to the United States or who has committed an act against the United States or American interests will be held, will be tried, and the president has been clear about that.
This process is designed to protect the American people and that is what I have tried to do, to the best of my ability.
SEN. SESSIONS: Well, if he has been captured as part of the war on terror, is he not -- is the United States, and any government in the world, really, entitled to maintain that person in custody until the hostilities are over, until you can assure us that the suspect is not a danger?
ATTY GEN. HOLDER: Well, I think the last part of you statement is where I would focus, so ensure that the person no longer poses a danger to the United States or American interests.
And the determination that we made with regard to the releases that we have so far ordered, which I think are above 50 at this point, we've all made the determination based on the reviews that have been done by career people in the Justice Department, the intelligence agencies, is that these people do not pose a danger to the United States, and that in releasing them or transferring them, we can do so with measures in place that we minimize the danger that they could pose to this country.
SEN. SESSIONS: Well, you're taking on an awesome responsibility to divine these people's intent, people who pretty clearly had serious involvement in plans to attack and kill Americans and attack the United States.
My time is up. I won't run over. I thank you, Mr. Chairman.
SEN. LEAHY: Thank you. Senator Kohl.
SENATOR HERB KOHL (D-WI): Thank you, Mr. Chairman.
Mr. Attorney General, at your confirmation hearing you said that Guantanamo will be closed. The administration has been making progress in finding countries that will accept those detainees who have been cleared for release and recently began court proceedings for one detainee in federal court in New York, and this is good progress.
However, President Obama has indicated that some detainees may have to be held for, quote, "prolonged detention" because some detainees who pose significant threats cannot be tried for their crimes.
Are we really meeting the goals behind closing Guantanamo if we simply bring detainees for the United States for what could be indefinite retention?
ATTY GEN. HOLDER: What we're trying to do, Senator, is make individualized determinations about what should happen to the people who are presently held at Guantanamo. Some we think will go into a category where they will be tried, either in Article III courts, federal courts, or military commissions.
Some can be transferred or released, and the possibility exists that some will be in a third category where they will be detained in a way that we think is consistent with due process, both in the determination as to whether or not they should be detained, and then with regard to periodic reviews as to how long that detention should occur if they continue to pose a danger to the United States.
It's not clear to me that there are going to be people in that third category, but the president, in his speech, indicated the possibility exists that people could be placed in that category but it would only happen pursuant to really, I think, pretty robust due process procedures.
SEN. KOHL: So there are some who might be retained indefinitely without due process?
ATTY GEN. HOLDER: No, with due process consistent with the laws of war. The due process that I would focus on would be in the initial determination. Due process would be afforded them with regard to making the decision that they would be placed into that detention mode, and then a periodic review that would be done.
We would want to work with members of this committee and with Congress to come up with the exact parameters of that due process, but we'd only want to do that in conjunction with Congress and with the assurance that what we are doing is consistent with our values and with our commitment to due process.
SEN. KOHL: Last week the Washington Post reported that the administration has, quote, "all but abandoned" plans to allow Guantanamo detainees who have been cleared for release to live in the United States. Is this true? In the last week, multiple countries have either agreed to accept detainees or have already accepted detainees, but what will happen if there are others that do not have countries to go to? What will we do with them?
ATTY GEN. HOLDER: Well, we're going to work with our allies, with our friends to try to place these people who have been approved for transfer or for release. I think we made pretty significant progress last week where nine people were placed in different countries. The Italians have indicated a willingness to accept three additional ones. We are in constant conversation with our allies in attempting to place these people.
So we will continue our efforts. The State Department is working with us. Dan Fried is flying all over the world, meeting with the people, meeting with the various countries, trying to come up with ways in which we place these people. So those efforts will continue.
SEN. KOHL: And those for whom we cannot find a place overseas, what will we do with them?
ATTY GEN. HOLDER: Well, see, I'm not sure that we're not going to be able to. I think that by sharing information about who these people are, responding to the questions that are posed by our allies who might be the recipients of these people, that we can come up with a way in which we can assure them that they will not pose a danger to their countries, will not pose a danger to their countries, will not pose a danger to us. I think we're going to be successful in placing these people.
SEN. KOHL: At your confirmation hearing, you committed to restoring the integrity of the Justice Department by ensuring its independence from politics. What steps have you taken to accomplish this goal?
ATTY GEN. HOLDER: Well, I have certainly, with regard to the Civil Rights Division, for instance, I have met every employee of the Civil Rights Division in a series of meetings to make sure that they understand as the division that I think had the greatest amount of political harm done to them that that is no longer what is going to be accepted, that they are to not be timid in the enforcement of civil rights laws, that they are to report to me any kind of political interference that they might detect, and that they are to work in the tradition of the Justice Department lawyers in the Civil Rights Division have always worked under, be it under Republican or Democratic attorneys general. So we've tried to get that message out.
I have visited with and continue to visit with other divisions and have tried to bring that message as well, telling people that, you know, it is a new day in the Justice Department, and especially in those places where there was the greatest amount of political interference in the past.
SEN. KOHL: Mr. Attorney General, under the current law, the Department of Transportation has the power to grant antitrust immunity to international aviation alliances. This enables international airlines to form alliances in which they can jointly set fares, coordinate schedules and market the alliance together. Critics of such alliances argue that they can lead to higher prices for consumers and make it difficult for smaller airlines to compete. Critics also argue that it's not appropriate for the Department of Transportation to grant such antitrust immunity as its agency has little expertise in antitrust policy and often pays little heed to competition concerns. What is your view? Do you think that it's appropriate for the Department of Transportation to be able to grant antitrust immunity to international airline alliances without input, recommendations and coordination with the Department of Justice?
ATTY GEN. HOLDER: Senator, that's actually a very timely question. There is presently under consideration by the Department of Transportation one of those alliances. And we have reached out to the Department of Transportation. The deputy attorney general has spoken to the deputy secretary. I've had conversations with Secretary LaHood. And they have said that they will work with us in making a determination about how this particular alliance should be viewed, so the Justice Department will have input into that determination. And I think we will come to a joint resolution of how that issue should be resolved.
SEN. KOHL: Well, that's very good to hear. If I'm interpreting what you're saying is that the Department of Transportation as well as the Department of Justice will be working together on these matters and hopefully will arrive at some kind of a joint agreement as to how to proceed.
ATTY GEN. HOLDER: That's correct. Our Antitrust Division will be working with attorneys from the Department of Transportation, trying to resolve that issue.
SEN. KOHL: Thank you so much.
Thank you, Mr. Chairman.
SEN. LEAHY: Thank you, Senator Kohl.
I'm advised by Senator Sessions that Senator Graham is next.
SEN. LINDSEY GRAHAM (R-SC): Thank you, Mr. Chairman.
Mr. Attorney General, about Gitmo. One of the reasons that we would contemplate closing Gitmo is that our commanders in the field have suggested it would help the overall war effort. Are you familiar with their statements?
ATTY GEN. HOLDER: Yes, I looked at the statements from General Petraeus, Senator McCain and actually looked at a couple of statements that you've made.
SEN. GRAHAM: Well, and I'm just echoing what they're saying. You know, the people on the ground in different regions of the world indicate to me that Gitmo has hurt our effort to bring people over to our side. And starting over with detainee policy would probably be a good idea. Do you share that view?
ATTY GEN. HOLDER: Yeah, I do. I mean, as I look at and have spoken with members of the military about the impact that Guantanamo's had as a recruiting tool and as a thing that has alienated us from people, nations that should be our allies. I think that the decision to close Guantanamo by the president was a correct one.
SEN. GRAHAM: And I think Secretary Clinton shares the view that it would help us abroad if we had a kind of a start-over regarding detainee policy.
ATTY GEN. HOLDER: Yes, that's correct.
SEN. GRAHAM: And one thing I'd just like to mention to my colleagues on the committee. In every war, detainee policy become very important. It can hurt the war effort, or it can help the war effort. The war you treat people in your capture really does matter. The German and Japanese prisoners that were housed here in the United States were, I think, well-taken care of, and it made it easier for us to win over the German and the Japanese people over time. And I see a chance to start over here.
But the problem the American people have and I think members of the committee on both sides of the aisle is that we need a plan. And let's talk about how we view the Guantanamo population. There's basically three buckets -- those that can be repatriated, that's one pathway forward. Is that correct?
ATTY GEN. HOLDER: That's correct.
SEN. GRAHAM: Now, some of the countries that we're talking about repatriating these detainees concern me. For me, that's probably okay, but I'm not so sure Bermuda is going to take many more than the Uighurs.
The Saudi Arabian rehabilitation program, what's your view of that program? How successful has that been?
ATTY GEN. HOLDER: Well, I think it's been successful, pretty successful. There have certainly been people who have gone through the program, who have returned to the battlefield. I mean, we have to be --
SEN. GRAHAM: Well, that's true in our own system.
ATTY GEN. HOLDER: We have to be honest about that. And so it has not been 100 percent correct or right. And yet, I think it provides a useful tool. I think if you combine that program, for instance, with what we'll be doing on our side in making determinations as to who can be transferred, we can probably increase the success rate of that program. And I would hope that we'll be using that tool in at least the transfer or release of some of the people that were presently held at Guantanamo.
SEN. GRAHAM: I would certainly urge you to go that. And as you try to find countries to repatriate the detainees, I think it is important to look at the security of that country, their willingness to make sure these people are followed and taken good care of. So that's one bucket.
The second bucket is the people that will actually be tried in a United States court. You know my position, I prefer the military commission system. But of the 250 people we have at Guantanamo Bay, what percentage do you think, at the end of the day, will go through a military commissions Article 3 court?
ATTY GEN. HOLDER: It's hard to say at this point. I'm not sure the trends have necessarily developed. We've gone through about half of the detainees at this point. I don't think we're going to have a very huge number.
SEN. GRAHAM: Yeah. Would you say less than 25 percent, 25 percent or less?
ATTY GEN. HOLDER: That might be about right.
SEN. GRAHAM: Yeah. I just want the public to understand that in terms of disposition forward, repatriation has its limits but a possibility. Trial is a way forward, it's the preferred way forward, but only, I think, about 25 percent will actually ever go to trial.
And that leaves us with a third bucket of people that we have in our custody, that we're not going to repatriate, that we're not going to go through a criminal process. It goes back to Senator Kohl's view. That third bucket is the most problematic. But as I understand the administration's thinking on this is that we want to make sure that we have a legal system that would allow every detainee in that third bucket to have their day in federal court, that no one would be held indefinitely in this country without a federal judiciary review. Is that correct?
ATTY GEN. HOLDER: Yes. As I said, we want to work with members of the committee and with Congress to determine exactly what the parameters would be. But the thought we had was that there would be some kind of review with regard to the initial determination and then a periodic review with regard to whether or not that person should continue to be detained.
SEN. GRAHAM: I think you're on the right track. The one thing we want to avoid is to say to the world that anyone who's in a military prison or a civilian prison, held as an enemy combatant without their day in court, I want an independent judiciary basically validating what the intelligence community and the military says about this person. And if the labeling is correct in the eyes of an independent judiciary, we want an annual review process or some collaborative effort that would meet on a regular basis to ensure the detainee has a pathway forward. Is that sort of what we're looking at?
ATTY GEN. HOLDER: Yes, something along those lines. I guess, again, as I said, the exact parameters of which we want to work with Congress.
SEN. GRAHAM: Sure.
ATTY GEN. HOLDER: But I think what we want to stress is that due process has to be a part of this component should people end up in --
SEN. GRAHAM: I could not agree more. It has to be robust, and it has to be transparent. And no one would be held based on an arbitrary decision by one group. It would be a collaborative effort. So I think you're on the right track.
Now, when it comes to Bagram Air Base, I know you've been to -- have you been to Afghanistan?
ATTY GEN. HOLDER: I have not, not yet.
SEN. GRAHAM: I would encourage you to go, because I think, beyond Guantanamo Bay detainees, there is a group within Bagram Air Base that are foreign fighters, that are non-Afghan fighters, that are probably never going to go into the Afghan legal system for lots of reasons. Some of them have been there three or four years, quite frankly, and we need to sort of evaluate that population and see if we can reintegrate, bring them back to this new system, whatever it is, reintegrate them into this new system.
I would urge you to do that, Mr. Attorney General, is to get some of your folks to look at the Bagram detainee population, because I think some of them are going to have to be brought back here in our system. And we're likely to capture more during the upcoming surge of troops.
Finally, the detainee photo issue. I know I've got 30 seconds here. I appreciate your willingness to appeal the 2nd Circuit's decision. The president has said publicly that he would do what's necessary to prevent these photos from seeing the light of day. I'm working with my colleagues here in the Senate to see if we can have a legislative fix that would protect the photos from being released, working with Democrats and Republicans to achieve that goal. But can you tell me the game plan of the administration if necessary? The timeliness of an executive order -- if the court rules against the administration, I think the 2nd Circuit order stands. When would the executive order, if necessary, when should it be issued in this case?
ATTY GEN. HOLDER: Well, we hope obviously that we'll be successful in the courts. And if we're not, we'll consider the options that we have. The president made the determination that he thinks the release of those photos would have a negative impact on our soldiers in the battlefield. And it was for that reason that he made the decision to withhold the release of them. That concern continues. It was based on his interaction with the commanders in the field.
So if we were not successful in court, we would then have to consider our options with the concern that the president expressed and that I believe in would remain.
SEN. GRAHAM: Chairman, can I ask one follow-up question? I apologize. My concern is the timeliness of the order. The one thing, we are a nation of laws. And an executive order just can't wipe out a court decision. The courts won't stand for that. If the Supreme Court denies the petition for certiorari, then the 2nd Circuit order to release stands. What would you do in that case? If you lose in court or the Supreme Court refuses to hear the case, wouldn't the order to release the photos be imminent, go forward? And how would the executive order stop it then?
ATTY GEN. HOLDER: Well, again, I'd have to look at the 2nd Circuit order, see what flexibility there is there, what options we would have. The concern, as I said, that the president expressed and that I agree with remains. We don't think that the release of these photos would be a good thing for our troops. And we would want to, consistent with the law, work work Congress and consider our own options to ensure that these photos are not released.
SEN. LEAHY: Thank you.
SEN. DIANNE FEINSTEIN (D-CA): Thank you very much, Mr. Chairman.
I'd just like to clear up some -- a bit of repartee between you and Senator Coburn on the e-mail surveillance concerns that were written up on the front page of The New York Times. And I'd like to speak as chairman of the Intelligence Committee. We saw the April article. The Intelligence Committee held a hearing. We asked the questions. We were assured it was not correct. I have since spent time with General Alexander. I've gone over this chapter and verse. I do not believe that any content is reviewed in this program. We will hold another hearing and we will go into it again.
And I'm surprised by this article, because they're two very good journalists that have written it. And yet everything that I know so far indicates that the thrust of the story -- that there are flagrant actions, essentially, to collect content of this collection -- just simply is not true to the best of my knowledge. Now, we will look more deeply into it, Mr. Chairman, and I'll be very pleased to let you know what we find.
SEN. LEAHY: If -- once you -- once you have the -- if you could brief Senator Sessions and myself and cleared staff on that issue --
SEN. FEINSTEIN: We would happy to do that.
SEN. LEAHY: Thank you.
SEN. FEINSTEIN: And we are well aware of the concerns about it. And so we will continue with this.
If I may, welcome, Mr. Attorney General.
ATTY GEN. HOLDER: Thank you.
SEN. FEINSTEIN: And I'm one that thinks you're a refreshing breath of fresh air in the department.
ATTY GEN. HOLDER: Thank you.
SEN. FEINSTEIN: So welcome.
Almost a year -- for almost a year, I asked the attorney general -- namely Mukasey -- to release a 2001 OLC opinion, as has the chairman and others on the committee. And that opinion concluded that the Fourth Amendment did not apply to military operations on United States soil. The opinion was finally made public this March. It was released together with a memo written in '08 which instructed attorneys that, quote, "caution should be exercised before relying," end quote, on the '01 opinion; called the opinion's conclusions incorrect or highly questionable and rendering much of the opinion void.
What I'd like to know is, has this opinion ever been withdrawn in its entirety?
ATTY GEN. HOLDER: Senator, I would have to check on that. I believe so. But let me just check to make sure on that and maybe get back to you. I'm not -- I'm not sure about -- I'm not -- I don't have in my memory right now what the impact of the president's withdrawal of a variety of OLC opinions early on, whether that was concluded in that --
SEN. FEINSTEIN: Well, this was a big opinion on --
ATTY GEN. HOLDER: Yeah.
SEN. FEINSTEIN: -- Fourth Amendment with respect to American citizens and American military. So I think it's important that we clarify it.
And could you bring us up to date on what you are doing to review the OLC opinions and what actions you've taken?
ATTY GEN. HOLDER: Well, we released some of the OLC opinions some weeks ago, I'm not sure exactly when. The review that led to that release continues. And as we finish that review and make the determination that opinions can be released in a way that's consistent with our national security and protects also internal deliberations of the executive branch, we will make releases -- make further releases.
One of the things that would be very helpful in that regard is to -- and this is an advertisement, I suppose. It may not be totally responsive. But it will be great to have Dawn Johnsen confirmed as the head of OLC. That is, I think, a critical part in getting that review under way, having the person who will ultimately head that part -- that critical part of the department in place. But the people who are there now are doing the best that they can, and we will continue the process that led to the release of those other opinions.
SEN. FEINSTEIN: Thank you very much.
Recently, I had a meeting on -- in the San Diego area on the southwest border. It was a meeting of the top officials of all of the departments -- FBI, DEA, DA, et cetera. And I learned something quite surprising, and I'd like to say what it is and ask you to take a good look. And that is that virtually all of the narcotics traffic in this country, the routes that drugs travel, the people who control those drugs, the hits that are ordered are essentially controlled by certain gangs in federal prisons and some state prisons today. And they even gave me the names of the prisons.
I spoke to Bob Mueller. I've told him about this. I want to bring it to your attention publicly. It is not acceptable that narcotics trafficking directions be given out of federal or state prisons. And I'd like to ask you to make a thorough investigation. I'd be happy to give you the information that I have that I'm not going to discuss here. But what I'm asking you for is a commitment to take a big, strong, in-depth look at this.
ATTY GEN. HOLDER: Sure. I'll certainly do that.
There are certainly measures in place -- the monitoring of telephone calls, the monitoring of people who visit with people who are detained, certainly in the federal system, for which I'm responsible. But I'll certainly look at the information that you have expressed concern about and see if there are things that we need to do better on the federal side and also interact with our state partners to see if there are ways in which we can help them in that regard.
SEN. FEINSTEIN: Thank you very much. And I'm happy to fill you in.
I wanted to just pick up on what Senator Kohl and Senator Graham said about this one group of detainees. As you said, the laws of war provide for the detention of a combatant for the length of the conflict. Once a military commission declares somebody an enemy combatant and the decision is made that they remain a national security risk, there is a necessity, as we have all discussed, to provide a due process review of that individual periodically. Has that due process review been decided upon? If so, who would conduct it and how often would those reviews take place?
ATTY GEN. HOLDER: No, we have not decided that, both with regard to where that review would occur and how frequently it should occur. We are discussing that internally. It is something, though, that I'd think we'd want to work with the members of this committee and Congress more generally in coming up with how that should occur, who should be responsible for both the initial determination and the review and then how frequently it should occur. We're going to have ideas, but we want to interact with, as I said, members of the -- of the committee to get your ideas as well, so that the process that ultimately is put in place is one that will have the support of Congress.
SEN. FEINSTEIN: Well, please do. Senator Graham and I have discussed this. Others have. We are very interested and, I think, have a point of view that we would like the opportunity to express to you. Thank you.
Let's go back to the southwest border for a minute. And more than 10,000 people, as we all know, have been killed in Mexico by drug violence since December of 2006. And Mexico's attorney general, Mr. Mora, estimates that $10 billion worth of drug proceeds crosses the United States into Mexico each year in the form of bulk cash. We held a hearing. We talked to the attorney general of the state of Arizona, who more or less confirmed a lot of this. So my question is, how much of that cash has been intercepted at the border in '09? And what role today does the BATF and the DEA play in stemming this flow?
ATTY GEN. HOLDER: I'd have to get you some numbers on how much we have intercepted in '09, but we've certainly stepped up our efforts in conjunction with our partners at DHS. Secretary Napolitano and I went to Mexico I guess in the early part of the year to talk with our Mexican counterparts about the inflow of bulk cash and weapons into Mexico and with -- trying to come up with ways in which we interdict and stop that amount.
We have -- DEA has moved significant resources, about 20 agents, towards the southwest border. ATF has moved about 100 to the southwest border. The FBI has put together a new intelligence capability along the southwest border, all designed to stop the flow of that material into Mexico, but also to stop the flow of drugs from Mexico into -- into our country. This is a priority for us.
SEN. FEINSTEIN: Thank you. Thank you, Mr. Chairman.
SEN. LEAHY: Thank you very much. (Off mike.)
SEN. JOHN CORNYN (R-TX): Thank you, Mr. Chairman.
Mr. Attorney General, welcome. Thank you for your service.
At your confirmation hearing, we talked about the Emmett Till Unsolved Civil Rights crimes. And you had made a commitment to me that you would do whatever you could in your power, if Congress failed that, to make sure that that was funded. Number one, my first question is, have you been successful? And number two, the group that actually motivated the response for that bill -- and Senator Dodd and myself had an amendment to try to fund that that was rejected by our colleagues on the omnibus bill -- would like to have a meeting with the Justice Department, have been turned away.
And I just think in the nature of your commitment to me, can you answer, what have you done to get the funding for the Emmett Till bill? And number two, would you agree to meet with the principals of that organization so that they can -- we can get these crimes resolved?
ATTY GEN. HOLDER: I'd have to look and see, Senator, quite frankly where we stand with regard to the budget for next year. I just don't offhand remember how much money, if any money at all, was dedicated to the project that you -- that you talk about, but I'll check that and get back to you. But I'd be glad to meet with the people you are talking about, the organization that you're speaking with.
SEN. CORNYN: I'll communicate that today. That's Mr. Alvin Sykes. He's the president of that organization.
ATTY GEN. HOLDER: That's fine.
SEN. CORNYN: You know, it really is interesting. We pass a bill and we pound our chests around here, and then we don't get the money to do it. On a very real issue, time is of a major factor, because if we don't fund this in an appropriate time, we're not going to solve those and we're not going to bring to justice those people who should be brought to justice.
ATTY GEN. HOLDER: I mean, as I said at my confirmation hearing, and I'll reiterate today, I mean, I share the concern that you expressed, and I'll do what I can to give life to the concerns -- to the mechanism that is in place. But I want to --
SEN. CORNYN: I'll be happy to help you shovel that money around. I put out a report last year on $10 billion worth of waste at the Justice Department. So I'll be happy to offer a critique, if I might, on where you might find that money.
I'm a little concerned about what happened in Arkansas, also what happened in Kansas, and the differential in response. Do you view the murder of one of our soldiers in Arkansas as a hate crime?
ATTY GEN. HOLDER: I don't know all the facts there, but it is potentially a hate crime. The response that we used with regard to what happened to the killing of Dr. Tiller was one where the Justice Department has historically used its resources to protect doctors who engaged in reproductive activities.
With regard to the killing of the recruitment officer, that is one that the Department of Defense has primary responsibility for, though we have offered our assistance in that regard.
SEN. CORNYN: The prosecution of that would be outside of the Department of Justice?
ATTY GEN. HOLDER: Oh, no, no. No, I thought you were talking about the protection efforts.
SEN. CORNYN: No, no, I'm not talking about the -- I'm talking about the prosecution of that.
ATTY GEN. HOLDER: Oh, no, that would be the responsibility of the Justice Department in conjunction with our local partners. As it happened in Kansas, there's a component of that that's being done by the local prosecutor. Some will be done by us.
SEN. CORNYN: I understand. Do current hate crimes laws cover that act in Arkansas?
ATTY GEN. HOLDER: If there were a determination made that the killing was based on the race of the victim, yes, I think it's at least arguable that that is. But if the motivation was because of his military status, I do not think that would be cognizable under the hate crimes statute.
SEN. CORNYN: Regardless of what his stated motivations might have been.
ATTY GEN. HOLDER: Well, I mean, that would be one of the things we'd have to consider, what's the motivation of the person.
SEN. CORNYN: Should we consider legislative proposals to protect U.S. soldiers at recruiting offices?
ATTY GEN. HOLDER: Well, I mean, I guess we'd have to look at the extent of the problem. And that is not to minimize the seriousness of what happened there. I mean, what happened there was deplorable and not something that should in any way be tolerated. But I think we'd want to look at what is the nature of and extent of the hate crime that we are trying to legislate.
The categories that we have now, I think we can certainly show that there are substantial numbers of crimes that happen, and also with regard to the categories that the administration thinks we ought to expand it to.
With regard to military personnel, I'd want to look and see what the statistics show, what the facts show.
SEN. CORNYN: Okay, thank you. Well, we'll get into that again.
One of the other things that you and I discussed during your hearing -- and you and I had a different position on this, and I respect your position -- but a commitment you made was to rigorously review Heller prior to making any commitments or recommendations on additional laws restricting the Second Amendment.
Have you, in fact, done that? And have you, in fact -- did you, in fact, do that before you issued your recommendation on so-called assault weapons?
ATTY GEN. HOLDER: I was going to say, I'm not sure that I've done anything with regard to weapons. I mean, I'm obviously cognizant of the Heller determination, Heller decision. But I don't think the department has issued any rules, regulations with regard to weapons -- (inaudible).
SEN. CORNYN: Well, in terms of recommendation, though, basically you're on record wanting us to repropose an assault weapons ban. And the comment that you made during your confirmation hearing was, in fact, that you would do a rigorous review of Heller before any recommendations were made.
My question simply is, did you do that? And what were the results of that rigorous examination of Heller that caused you to propose a new assault weapons ban?
ATTY GEN. HOLDER: Well, I don't think that I have, in fact, said that we need a new assault weapons ban. What I have said is that we need to look at the situation we have, look at the violence that we have that is gun-related, and come up with measures that will effectively deal with that issue.
SEN. CORNYN: Actually, on February 25th, at a news conference, you said you endorse reinstating the ban on assault weapons -- February 25th. And my question is the commitment you made to this committee was that you'd do a rigorous analysis of Heller before you made any recommendations. And all I wanted to know is, did you do that, or was this just impromptu at this press conference?
ATTY GEN. HOLDER: Well, what I -- there is a firearms review that is ongoing, and obviously will take into account the Heller decision. But the administration has not taken a position with regard to reinstituting the assault weapons ban.
SEN. CORNYN: All right. Well, I thank you very much for answering my questions.
I do have a few additional questions I'd like to submit to the record, Mr. Chairman.
SEN. LEAHY: (Off mike.)
SEN. CORNYN: Thank you.
Thank you again, Mr. Attorney General.
SEN. LEAHY: All senators have that right. We'll keep the record open throughout this week.
SEN. RUSSELL FEINGOLD (D-WI): Thank you, Mr. Chairman.
I understand, Mr. Attorney General, you had exchanges with Senator Graham and Feinstein and Kohl about the issue of prolonged detention. I chaired a hearing on this topic last week and would simply urge you and the department to consider the various legal and policy concerns that are involved. Any system of indefinite detention raises those kind of issues.
I would say, even with the kind of due process protections that you discussed, I do think this could be a very big mistake, especially because of how such a system could be perceived around the world, frankly, after some of the progress that the administration is making to the president's good work on our relationships around the world.
On another topic, I wrote to the president Monday about my continued concern that the administration has not formally withdrawn certain legal opinions, including the January 2006 white paper that provided legal justifications for the Bush administration's warrantless wiretapping program. And the letter was prompted in part by a recent speech that I'm sure you're aware of by the director of National Intelligence in which he asserted that the program was not illegal, but he later clarified that.
In a speech to the American Constitution Society in June 2008, you, sir, said the following: "I never thought that I would see the day when a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens." And the president himself also several times as a senator and during the campaign said the program was illegal.
Now that you are the attorney general, is there any doubt in your mind that the warrantless wiretapping program was illegal?
ATTY GEN. HOLDER: Well, I think that the warrantless wiretapping program, as it existed at that point, was certainly unwise in that it was put together without the approval of Congress, and as a result did not have all the protections, all the strength that it might have had behind it, as I think it now exists with regard to having had congressional approval of it. So I think that the concerns that I expressed in that speech no longer exist because of the action that Congress has taken --
SEN. FEINGOLD: But I asked you, Mr. Attorney General, not whether it was unwise but whether you consider it to have been illegal, because that's certainly the implication of what you said in the quote I read, and the explicit statement of the man who is now president of the United States.
ATTY GEN. HOLDER: Yeah, well, what I was saying in that speech was that I thought the action that the administration had taken was inconsistent with the dictates of FISA. And I think you used the word contravention. And as a result, I thought that the policy was an unwise one. And I think that the concerns that I expressed then have really been remedied by the fact that Congress has now authorized the program.
SEN. FEINGOLD: But did you think it was illegal?
ATTY GEN. HOLDER: Well, I thought that, as I said, it was inconsistent with the FISA statute and unwise as a matter of policy.
SEN. FEINGOLD: Has something happened that's changed your opinion since your June 2008 statement that would make it hard for you to just simply say what the president said, that it's illegal?
ATTY GEN. HOLDER: I don't think so. And I don't think what I'm saying now is necessarily inconsistent with what I said at the ACS convention, the speech that I gave.
SEN. FEINGOLD: Well, it sounds awfully mild compared to some very clear statements and a very important principle here, which is not only that this has to do with the scope of the FISA law but the underlying constitutional issue that people like me and many people believe, that if the statute is that explicit under the third test, under Justice Jackson's test, that it is, in fact, unconstitutional for the president and illegal, of course, for the president to override the expressed will of the Congress.
ATTY GEN. HOLDER: Well, as I said, I think I said in contravention of, inconsistent with. I'm not sure (I've used ?) the term "illegal." And I would adhere to -- I adhere to what I said then. I think what I'm saying now is consistent with what I said in the speech.
SEN. FEINGOLD: Well, that may well be. But I would hope you would use the word "illegal" now then. And I requested in the letter I sent to the president on Monday and also in a letter dated April 29th that the administration withdraw the January 2006 white paper and other classified OLC memos providing legal justification of the program. I know you've initiated a review of the Bush-era OLC memos and, of course, certain memos that authorize torture have been withdrawn. Apparently, you discussed this a bit already today with Senator Feinstein. What is your status of your review of the memos concerning the warrantless wiretapping program?
ATTY GEN. HOLDER: Well, I've asked the Office of Legal Counsel to review these prior opinions, including those that deal with surveillance, with the goal of making as many of these opinions public as we can, consistent with our national security interests and also consistent with ensuring that robust debate can happen within the executive branch.
It is my hope that that process, which is ongoing, will lead to the release of several opinions in a relatively short period of time.
SEN. FEINGOLD: I just want to reiterate how important it is for the legal justification for this program to be withdrawn. I'm concerned these memos that make unsupportable claims of executive power will come back to haunt us if they remain in effect. And if you believe, as I think the president has indicated in the past, that the program was illegal, they cannot stand.
In his national security speech on May 21st at the National Archives, the president indicated that he is concerned about the overuse of the state secret privilege. He stated the administration is undertaking a thorough review of the practice and then said, "we will voluntarily report to Congress. And we have invoked the privilege and why? Because, as I said before, there must be proper oversight of our actions," unquote.
And since February, I've been seeking a classified briefing from the department about its position in the three cases in which it has continued to assert the state secrets privilege. These are controversial cases, and I want to understand why the administration is asserting the privilege. I'm a member of the Intelligence Committee and the Judiciary Committee. And as you know, state secrets legislation is before the committee.
I think my request is consistent with the president's desire to brief Congress and cooperate with oversight. Will you make sure that I can receive this briefing?
ATTY GEN. HOLDER: I'll try and get the information to you, Senator. What we are trying to do is look at the state secrets issue in such a way that it's looking at it in two ways -- one to see whether or not the -- (inaudible) -- was properly invoked with regard to the 20 or cases in which it has been used. And then, what can we do going forward?
We have some proposals that we have been working on, that I think we're going to make public in a matter of days, that we would put forth for consideration by this committee and by Congress, generally, about the way in which we think we should hand the state secret issue.
SEN. FEINGOLD: Is there any reason why I can't get this briefing at this time?
ATTY GEN. HOLDER: As I said, we'll try to get the information to you and make you aware of the things that you've sought.
SEN. FEINGOLD: I thank you, Mr. Attorney General.
SEN. LEAHY: Thank you.
SEN. ORRIN HATCH (R-UT): Thank you, Mr. Chairman.
Welcome, General. We're happy to have you here. And I know you have a difficult job, and we always want to be helpful to you if we can.
But last week, there was something that really bothers me over this last weekend. After a two-year investigation, the FBI in cooperation with the Department of Justice arrested 19 Utahns trafficking in Indian artifacts from federal lands. Now, I'm extremely concerned by the manner in which these warrants were executed. They came in in full combat gear, SWAT Team gear, like they were going after, you know, the worst drug dealers in the world.
And in the process -- now, I don't believe anybody should be taking Indian artifacts. I'll establish that right off. But in the process, one of the leading figures in the whole county down there, who is the leading doctor, had delivered almost everybody who lived in the county, as a doctor, committed suicide. He was, by all intents and purposes, an upstanding member of the community, a decent and honorable man, critical to the community from a health and welfare standpoint. And the way they came in there, I mean, you know, I have no problem with going after people who violate the law. But they came in there like they were the worst common criminals on earth. And in the process, this man, it became overwhelming to him, I suppose. And a really strong individual, a good person, does not commit suicide.
Now, you know, this bothered me. The media reports state that over 100 federal agents were used in this operation. And that extreme show of force and presence has been perceived by the community out there and the civic leaders in San Juan County as not only unnecessary but brutal.
Now, I am questioning the motivation of some of the higher-ups at Justice and of the Interior. The day after these raids were conducted, Secretary Salazar and Deputy Attorney General David Ogden appeared before the media, touting how successful this investigation was. Now, I've been in the Senate for now in my 33rd year. And I felt it was like a dog-and-pony show, to me, and I know one when I see it. And this has all the classic signs of one.
The offenses for which these warrants were issued were nonviolent offenses. One has to think that the manpower and resources allocated to this operation were usually reserved for, like I say, arresting truly violent felons.
Now, let me contrast this case and compare it to another federal sweep that also occurred last week in north Texas. After a two-year investigation, the FBI arrested 17 people involved in a large drug trafficking organization that extended from Texas to Massachusetts. The FBI seized cash, weapons, real estate, vehicles. FBI officials stated that this ring allegedly distributed $22 million in cocaine. Ironically, there was not a major press event regarding the drug sweep in which the Deputy Attorney General Ogden addressed the media.
And I guess what I'm saying, I know you well, we've been friends all these years. I have great respect for you. We may differ on some things, but that's normal, as far as I'm concerned.
For all these reasons, can you just explain to me what if any factors were used to measure the appropriate level of force and personnel for the Utah operation?
Here's an article on the 17 arrests for these violent drug situations. That was about it. But give me some reason for all this. Our people out there are up in arms and I think properly so.
ATTY GEN. HOLDER: Well, first, let me express my sympathy for the family, the doctor who took his own life. Obviously, that is a very sad thing. And if it was related to this operation, it is something that saddens me. It is not something certainly that we intended to have happen.
SEN. HATCH: It's completely destroyed the good feelings towards the government in that whole community.
ATTY GEN. HOLDER: The arrests that were done were felony arrests. And as best as I can tell, they were done in accordance with the FBI and Bureau of Land Management standard operating procedures. When arrests are made, and even in cases that seem to be nonviolent, there is always a danger for the law enforcement officer who is effecting that arrest. And it's a difficult thing to ask them to assume certain things as they're --
SEN. HATCH: I'm with you on that. But in this case, this is a doctor who everybody respected, everybody loved in the community. I'm just centering on his case since he was so overwrought by it he took his life. And that community, you know how hard it is to get upstanding doctors to move into some of these rural communities and do what this man was doing.
Now, again, I don't justify or taking Indian artifacts if that's what happened here, nor do I want to put you through a lot of pain here. I hope you'll do something about that type of activity in the future. And you can bring all the force you want against drug dealers and people who clearly are violent felons and where people might be in danger. But in this case, there wasn't the slightest possibility anybody could have been in danger down in that county.
ATTY GEN. HOLDER: Well, we want to use the appropriate amount of force that is necessary, but we also want to keep in mind the protection, the responsibility I have to make sure that the lives of law enforcement officers engaged in --
SEN. HATCH: I'm with you. But again, I'd say in that instance, that shouldn't happen.
Let me just change the subject for a minute, because I'm concerned about the state secrets privilege. General Holder, the Department of Justice has been conducting a review of pending cases in which the state secrets privilege had been invoked by the Bush administration. In the first 100 days of the Obama administration, the Department of Justice elected to defend this privilege three times.
Now, I have no problem with that at all. I think it's been correct. The administration has picked up where the Bush administration left off in three pending cases -- Hamdan, the Islamic Foundation versus Obama, and Mohamed versus Jeppesen Dataplan and Jewel versus NSA.
Now, during an April television interview, you stated that in your opinion the Bush administration correctly applied the state secrets privilege in these cases. Now, tomorrow, the Senate Judiciary Committee will begin marking up a bill entitled the State Secrets Protection Act.
Last year, after hearings were held on this matter in the 110th Congress, Attorney General Mukasey sent a letter to the Senate Judiciary Committee, expressing the Justice Department's view on the State Secrets Protection Act. The Department of Justice had several concerns regarding this legislation, chief among them was the constitutional questions raised by the proposed legislation.
This bill seriously limits the ability of the executive branch to protect national security information under the well-established standards articulated by the Supreme Court in U.S. versus -- (inaudible).
My time is up. Let me just finish this question, if you will, Mr. Chairman. I'd be grateful for that courtesy. But I also don't want to get on the wrong side of the chairman.
SEN. LEAHY: You never have.
SEN. HATCH: I never have, that's for sure.
Any attempt to reallocate national security decision-making from the executive to the judicial branch usurps the executive branch's power to make such determinations.
Now, that was the department's view last year after hearings were held on the state secrets privilege. The same bill has been introduced again, and there were no changes in the language, no attempt on the part of the bill's authors to address the Justice Departments concerns. And this bill has been on the committee's calendar since late April, and we have yet to hear the Justice Department's view on this legislation.
So while I have you here, would you be kind enough to give me the Justice Department's view on the State Secrets Protection Act of 2009.
ATTY GEN. HOLDER: Well, we want to work with this committee and with Congress in dealing with this whole issue of state secrets and the doctrine of state secrets privilege.
We have and are about to release I think what our views are as to how this problem can be handled, to the extent that it is one. I think it's our view that the proposals that we're going to make will deal with many of the concerns that I think generated the feeling of some people that there was a need for legislation.
So I would hope that we would have a chance to have members of this committee and Congress look at the proposal that we are going to make and see if that will be sufficient and then work with the members of the committee on any legislation that might be contemplated.
I actually think, though, that the proposals that we're going to make, I think, will be sufficient.
SEN. HATCH: When are you going to release those to us? Do you know?
ATTY GEN. HOLDER: It would be my hope that we can do this within a matter of days. This is not something I think is going to --
SEN. LEAHY: I might note for the senator from Utah. As the attorney general knows, I've been pushing for that same kind of a response, because otherwise we will mark up the bill. And we'd like to have, as I would with any department of either part, I would like to have the department's views. But if we don't have them, we will go ahead and mark up the legislation.
SEN. HATCH: That's said enough right there, it seems to me.
ATTY GEN. HOLDER: You'll have our views.
SEN. HATCH: Thank you, Mr. Attorney General.
Thank you, Mr. Chairman.
SEN. LEAHY: Senator Durbin.
SEN. DICK DURBIN (D-IL): Mr. Attorney General, thank you for being here.
First, I'd like to ask a question related to an issue in Chicago. I recently met with Ron Huberman who is the head of the Chicago Public School System. And he told me an absolutely stunning statistic. In this last school year recently completed, over 500 school children in Chicago were shot, at least 36 of them fatally. I think you'll share my view that this is unacceptable, in Chicago or anyplace in America.
I think under the 2nd Amendment people have the right to own a gun responsibly and legally. But children also have the right to be able to walk to school without being caught in the crossfire of a gang war. I'd like to ask for your help, along with the help of the Secretary of Education Arne Duncan and other members of the administration to work with Mayor Daley, the state and local officials, to deal with this serious problem in President Obama's hometown.
ATTY GEN. HOLDER: Yeah. The problem that you have detailed is simply unacceptable. I met with Mayor Daley last week here in Washington, and we discussed that problem and some other crime issues in Chicago. And what I told him then and what I'll tell you now is that we are committed to working with him as partners in trying to come up with ways in which we can deal with that issue.
That is, you know, one is too great a number, but the numbers that are coming out of Chicago are simply unacceptable. And we have to take really strong measures to try to come up with ways in which we deal with it.
SEN. DURBIN: There are many aspects of it, gang activity is clearly one of them, the proliferation of the sale of guns to these drug gangs by irresponsible gun dealers. There is a federal aspect of this. And I appreciate your being willing to help us and cooperate in dealing with that.
There were two investigations you inherited from the Bush administration related to activity that preceded your arrival. One was a Bush administration investigation of the destruction of CIA interrogation videotapes. And the second involved an investigation of Jay Bybee, John Yoo and Steven Bradbury, the Justice Department attorneys who authorized the use of abusive interrogation techniques, like waterboarding.
Senator Whitehouse and I asked then-Attorney General Mukasey to give us a copy of the investigation and report of the Office of Professional Responsibility about the activities of these three persons. He did not do that.
Although I understand that the OPR completed his investigation, he determined that he would do something which I thought was extraordinary. He submitted the report, before he gave it to the public or to Congress, to those who had been investigated to review and comment on the investigation. I understand that they have submitted their replies to that some six weeks ago.
So the obvious question is, when can we expect to receive a copy of this report?
ATTY GEN. HOLDER: I sat down just yesterday actually and talked to Mary Pat Brown, who is the head of the Office of Professional Responsibility, and this is one of the things that we discussed. They are pretty close to getting to the end of their process. It was lengthened by the responses that they received from the people who are the subject of the investigation. Ms. Brown indicates that what they wanted to do was to look at those responses, and there are some changes they're making to the report in light of the contentions that were contained in the responses that they examined.
So I think that we are pretty close to the end of that. And my hope is to share as much of that report as I can with members of Congress and with the public. There are some potentially classified portions of that report that I think we'll want to work to declassify, because, as has been expressed by the head of OPR, and I agree with her, that you can't get the full context for this report unless the entirety of the report or close to the entirety of the report is declassified.
SEN. DURBIN: Can you give me a time frame when we can expect to receive the declassified or unclassified portions of this report?
ATTY GEN. HOLDER: I think we're talking about a matter of weeks. I think they're pretty close to the end. And then I think we have to try to work through the declassification process. We'd be in a position to release the classified portion.
Though I wouldn't worry about that. Because as people look at the work that the OPR has done, I'd like them to have the full range of information that OPR had and considered. And that's why I think the declassification process is so important. I wouldn't want to put in the public record an incomplete report, so we have to work our way through that as well.
SEN. DURBIN: Mr. Attorney General, you made a point, which we have discussed before, about the question of race and justice in America. It was one of your earliest statements. You are aware, as all of us are, that African Americans are incarcerated at nearly six times the rate of whites in our country. One of the major reasons for that is the so-called crack-powder disparity when it comes to cocaine.
I've used this simply as an illustration that under our current laws, someone who is guilty of selling this amount of cocaine is subject to the same incarceration as someone who sells this amount of crack cocaine. This disparity, sadly, I voted for. Many of us did 20 years ago. We didn't know how terrible crack would be, but we were told it would completely change narcotics in America. It was so cheap, so plentiful and so devastating that we had to do something extraordinary.
The net results was this 100-to-1 disparity in terms of sentencing. There are men and women presently incarcerated in the United States for 10 and 20 years because of the 100-to-1 disparity between two forms of cocaine.
We held a hearing in the Crimes Subcommittee of Judiciary, and we had expert testimony, not just from those who said there is no scientific basis for this disparity, but also from law enforcement officials, including a gentleman who came to us from Miami, Florida and said that -- John Timoney, the Miami police chief -- who said, police departments face a much more difficult challenge gaining trust of their communities because of the glaring inequities in the justice system that are allowed to persist.
I know you have come out for ending this disparity. But I'd like to ask you if we need to move with dispatch on this issue, to restore justice and to restore confidence in our justice system among people in America who are presently the victims of this disparity.
ATTY GEN. HOLDER: Senator, I do think we need to move with dispatch. This is one of the first initiatives that we had people testify about. The Assistant Attorney General Division for the Criminal Division Lanny Breuer testified against the disparity. And I think you're exactly right. The disparity, as originally intended, originally proposed and enacted I think was well-intentioned. I don't think anybody had any negative motives.
But as we have seen how it has played out, and I think in the graphic demonstration that you have made, and also when one looks at the racial implications of the crack-powder disparity, it has bred disrespect for our criminal justice system. It has made the job of those of us in law enforcement more difficult.
And I think it is time for us to make the determination that is consistent with what the science tells us, consistent with what law enforcement officials on the state and local levels have told us, certainly something that I observed as a judge here in Washington, D.C., that it is time to do away with that disparity. That will have, I think, an immediate impact on how people, not only people of color, but people generally look at our criminal justice system. And it will be a very positive thing for those of us in law enforcement.
SEN. DURBIN: Thank you, Mr. Attorney General.
Thank you, Mr. Chairman.
SEN. LEAHY: Just so we know where we are, Senator Cornyn will be next, Senator Cardin, Senator Kyl. And I know a lot of the senators have been going back and forth. I was just discussing with Senator Kyl his working on health care, which a number of us are. On the thing that Senator Durbin raised on the crack cocaine, powder cocaine, I would like to see us move legislation this year to remove that disparity and make it more realistic.
I understand that some of the negotiating room that it gives prosecutors, but it also has this image of wealthy people, well- established in society, using their powder cocaine with virtual immunity.
A lot of young people from a far less affluent area, often minorities, (getting ?) hit on crack cocaine. And I think the disparity, it is destructive to our whole penal system and our justice system and to our respect for the rule of law.
I will work with senators on both sides of the aisle who have expressed for some time the problem with this disparity. I just -- I don't want what appears to many people to be one rule for white America, a different rule for black America. We --
SEN. SESSIONS: Mr. Chairman, could I just say that I --
SEN. LEAHY: Sure. Of course.
SEN. SESSIONS: -- I am -- I share those concerns. Senator Hatch and I, I guess for nine years, have had legislation to make a substantial improvement in that. Senator Cornyn and Senator Pryor and former Senator now Secretary Salazar, a bipartisan bill for -- former attorneys generals have also supported substantial improvements in the way that is done. I think it's not healthy now. We need to fix it.
I would just note, one reason we're having a hard time, Mr. Chairman, on our side is Finance Committee. Those masters of the universe are setting our health care policy. Senator Grassley let me know that -- he is, of course, ranking on that committee. Senator Hatch, Senator Cornyn and Senator Kyl are also members of that important committee. So I'm glad they can at least be here for a while.
SEN. LEAHY: Thank you. I'm glad, too. And, of course, I will keep the record open for the rest of the week for additional questions to be submitted.
SENATOR JOHN CORNYN (R-TX): Thank you, Mr. Chairman. Welcome, Attorney General Holder.
And I just want to note for the record, Mr. Chairman, there is no more important committee in the Senate than the Judiciary Committee. (Laughter.)
SEN. LEAHY: I liked you anyway. You didn't have to say that. But I -- no, but I do think the Finance Committee, Health Committee are taking a lot of our members. And I understand why.
SEN. CORNYN: Mr. Attorney General, I just have two areas I want to ask you questions about.
In November 2008, the Department of Transportation declared the record complete in the Continental Airlines, which is headquartered in Houston, Texas, their application to join Star Alliance and -- antitrust-immunized alliance of international airlines. According to U.S. code, this means that the secretary of Transportation was obligated to make a final decision by May the 31st, 2009. In late April 2009, the secretary issued a preliminary decision tentatively approving that membership in Star Alliance, but then the May 31 deadline came and went. I wanted to ask you about this, because some have indicated that the Transportation secretary's failure to meet the statutory deadline was due, in part, to requests from the Department of Justice, specifically the Antitrust Division, encouraging the secretary to delay the decision until the DOJ Antitrust Division could have some input.
I'm concerned about the deadline having come and gone and sort of the open-ended nature of this and wonder if you can shed any light on why that deadline was not met and what you anticipate the timetable might be.
ATTY GEN. HOLDER: As I believe I --
SEN. CORNYN: I think Senator Kohl asked some questions about --
ATTY GEN. HOLDER: Senator Kohl -- yeah. Senator Kohl asked the question earlier.
We did ask the Transportation Department to allow our Antitrust Division to have input into the decision that he will ultimately reach. And the secretary agreed to allow us to participate in that. I do not think that this will extend the time. It's regrettable that -- regrettable that the deadline has passed, but I don't think this will extend it a matter of months or even beyond a couple -- few weeks. And I expect that the determination will be made by the secretary of Transportation, after having consulted with the lawyers in our Antitrust Division.
SEN. CORNYN: I could certainly understand the desire to have input and appreciate that. However, I know there are others who'd appreciate a decision as soon as practicable. So I would appreciate that.
I want to ask you a little bit about the D.C. voting rights issue. And as you know, I wrote a letter to you expressing my concerns about a Washington Post story that said you'd solicited a second opinion from the solicitor general's office after the Office of Legal Counsel originally concluded that the D.C. Voting Rights Act was unconstitutional. I requested that you produce the OLC memorandum questioning the bill's constitutionality. And in response, as you'll recall, you said that -- you declined to make that memorandum public, saying that it was not final.
And so I want to ask you about that. What is there that remains to be done before that opinion will be final?
ATTY GEN. HOLDER: Well, I guess no decision's actually been made by the administration yet with regard to the position it's going to take concerning the constitutionality of the statute. So there -- that process is still ongoing. And as long as that is ongoing -- and also I -- the concern I think I expressed was it reflected -- I was concerned about releasing documents that reflected internal deliberations in the Justice Department. So those were the two concerns that I -- if I didn't express both, those were certainly the two concerns that I have now with regard to the release of the documents.
SEN. CORNYN: And given the fact that the memorandum was signed by the acting head of the Office of Legal Counsel, in what sense was the memorandum not final? Is it because the -- you say the administration will now make a decision whether or not it disagrees with the Office of Legal Counsel or not?
ATTY GEN. HOLDER: Yeah, the determination has not been made the president, by the administration, as to what the position is going to be of the administration. And so while that matter is ongoing, that was one of the two concerns I expressed about releasing the materials that you requested.
SEN. CORNYN: Well, would you -- would you foresee a situation where the Office of Legal Counsel would render a legal opinion that a statute was unconstitutional where the president would take a contrary position?
ATTY GEN. HOLDER: I mean, it's -- it -- you have to look at, you know, the specific fact situation. OLC has some of the best and the brightest in the Justice Department, but even the best and the brightest can get it wrong. We look at what they say. I review what it is that they say. Great deference is given to what OLC says. It's extremely rare for an attorney general to take a contrary position. And I understand that's why that -- this has, at least, gotten some -- generated some interest. But it is possible. I mean, the OLC has delegated power from the attorney general. I think it's ultimately my responsibility to make sure that the opinion that comes out of the Justice Department, even an OLC opinion, is one that I am fully comfortable with.
SEN. CORNYN: But I understand the difference between lawyers having different opinions -- that happens all the time -- but what you're suggesting is that the president of the United States would make a policy decision on a question of law and essentially overrule the decision of the Office of Legal Counsel. Is that what you're suggesting?
ATTY GEN. HOLDER: No, I'm not saying that. I mean, one of the things the president's got to decide in preparing policies, making policy judgments -- there are a whole variety of legal things that come in from the Justice Department, legal opinions. There are obviously policy considerations. I wouldn't say that the president for pure policy reasons would necessarily overrule an OLC opinion. The president might have a different legal view than the Office of Legal Counsel, a different view than the Justice Department with regard to a particular statute or policy initiative.
SEN. CORNYN: Well, I certainly understand the role of the OLC in informing the executive branch about what the law, in fact, is. And indeed, in the area of enhanced interrogations and rendition and other controversial areas that you're well familiar with and I am, as well, the question is, what is the law? And, of course -- but here, on the discrete issue, on the constitutionality of a statute, how in the world would the president of the United States have an opinion that would be anything other than a political decision that might overrule a legal judgment of the Office of Legal Counsel? Isn't that the kind of a politicization that we've heard decried here in this committee and in Congress for the last few years?
ATTY GEN. HOLDER: Well, you're talking about a hypothetical, the likes of which I'm not sure I've ever heard. But it would seem to me that --
SEN. CORNYN: But -- excuse me, but you're the one who said that the president -- the administration may or may not agree with the -- with the opinion, so that's not a hypothetical in that sense, I would submit.
ATTY GEN. HOLDER: Well, I think I was focused really more on the attorney general not necessarily agreeing with what an OLC opinion -- or an OLC position might be.
The OLC has -- plays an important role, a vital role in saying what the Justice Department's view is, the constitutionality of statute and a whole variety of other things. The president, in formulating policy, takes into account a wide range of things, things that come from the Justice Department, opinions that come from other places. There are policy determinations that go into it. And I -- it is not -- you know, I don't -- I'm not as bothered, I don't think, as you are, apparently, by the notion that a president, in taking into account the wide range of advice and opinions that he or she gets, comes up with a determination that might different from what the Justice Department has recommended.
SEN. CORNYN: Well, would that have to be based on a legal argument? Or would that -- could that be based purely on political considerations?
ATTY GEN. HOLDER: I mean, usually, the experience that I've had is that we're talking about legal arguments. The Justice Department takes a view. I don't know, maybe the State Department, Defense Department takes a different view with regard to a legal determination.
The president weighs those legal determinations and then decides one way or the other which legal view he thinks is most appropriate.
SEN. LEAHY: Senator Cornyn. Senator Cornyn.
SEN. CORNYN: Mr. Chairman, I know my time's up. I find troubling, though, the idea that the Office of Legal Counsel would render an opinion on the constitutionality of a statute and that the administration might, in its discretion, overrule that decision. I understand informing policy by saying what the law is, as going into an overall policy judgment, but on a discrete legal question involving the constitutionality of the statute, I'm troubled.
SEN. LEAHY: Probably all the more reason why we should get on with confirming the head of the OLC. But --
SEN. CORNYN: Well, I don't -- not if we're going to overrule them in the -- at the White House. I don't think --
SEN. LEAHY: Well --
ATTY GEN. HOLDER: Well, just to be -- just to be clear here, I mean, with regard to the particular thing that we're talking about, the D.C. voting rights, this didn't involve the president. This involved me. It was my determination that the better view of the -- of the statute was that it was constitutional. I based that on my review of the constitutional authorities who, in fact, said the same thing -- among them, Ken Starr, Viet Dinh, people who are certainly conservative in their views, but who I thought had a better view of the constitutionality of the statute. The president was not involved in this at all. Let's be clear. This was the determination that I made.
SEN. CORNYN: But just to be clear, the reason you won't release the memo is because you disagree with the legal conclusion?
ATTY GEN. HOLDER: No. The reasons that I think the memos should not be revealed is because this is an ongoing matter and also because I'm concerned about revealing internal deliberations in the executive branch and specifically within the Justice Department.
SEN. LEAHY: Senator --
SEN. CORNYN: Thank you, Mr. Chairman.
SEN. LEAHY: Senator Cardin?
SENATOR BEN CARDIN (D-MD): Well, Attorney General Holder, it's a pleasure to have you here. And I very much appreciate your comments, particularly as it relates to the Civil Rights Division and the message that you've sent and some of the other areas I want to talk about, a few.
Let me first -- if I might talk about predatory lending -- the civil rights movement was responsible for the passage of significant legislation that was intended to end discrimination in housing -- the Fair Housing Act, the Equal Credit Opportunity Act, the Home Mortgage Disclosure Act and Community Reinvestment Act, just to mention a few. And I think it did an incredible job in ending redlining. But the problem today is that we have reverse redlining, where minority communities have been targeted, particularly for subprime loans.
Let me just give you some of the statistics that we have for 2006, leading up to the current housing crisis. We find that the high-cost loans -- that 35 percent who were placed in these high-cost mortgages could have been placed in traditional, fixed rate loans. But the disturbing fact is that of those placed in high-cost loans, it was 53.3 percent for black borrowers, 46.2 percent for Latino, and 17.7 percent for white borrowers. The subprime rate of foreclosure is much higher than in the traditional fixed-rate loans.
Now, let me, if I might, quote from -- the National Association of Colored People Legal Defense and Education Fund noted that a case brought by the Civil Rights Division of the Department of Justice reverberates throughout the community, the state and the region. It can have industry-wide impact in terms of deterrence and reform. But broad-based injunctive relief the division can pursue cannot be matched through the efforts of individuals or private lawsuits.
My question is that we haven't seen a case brought since 2000 as it relates to predatory lending by the Department of Justice. I sent you a letter about a week ago concerning the circumstances in Maryland, where minority communities were targeted with subprime mortgages. My question to you or my request is that the Department of Justice investigate and look at the circumstances concerning predatory lending, particularly in minority communities, to see whether there is a need for aggressive action by the Department of Justice in order to protect our communities. And I would just request that you do this and get back to us on it.
ATTY GEN. HOLDER: Sure, we'll do that. Although, Senator, I will tell you now that I think there is the need for aggressive action by the Justice Department in this field. We announced an initiative -- it was a joint initiative with the Treasury Department, the FTC, Department of Housing and Urban Development and the Justice Department. And the Justice Department component of that initiative was to look at the very thing that you've talked about, and that is the use of these mortgage instruments disproportionately in areas where minorities are found and the impact that that has had -- the devastating impact that has had on minority communities as people have not been able to make payments and have abandoned their houses, with all the negatives that then flow from that. So this is something that we will aggressively be looking at.
SEN. CARDIN: I thank you. It's not just in home mortgages to buy homes. We find that in refinancing the minority communities were targeted, and a large number were convinced to go into a refinancing in the subprime market and now are losing their homes. So it appears like it was an intentional effort. And you -- I think the Department of Justice activities here could be very helpful to make it clear that we won't tolerate reverse redlining.
ATTY GEN. HOLDER: Right.
SEN. CARDIN: Let me weigh in on the Guantanamo Bay issues. And I must tell you, I thank you very much for your comments as it relates to placing due process in regards to those that are going to be detained. And I agree with the analysis that was made by Senator Graham and others about that process.
I chair the Terrorism Subcommittee, and we intend to have some hearings. The chairman has authorized us to have some hearings in this. And Senator Feingold has already had hearings in regards to the long-term detainees.
As you start a -- as Senator Graham said -- a fresh start in how we are going to deal with detainees, it is important that it be an open process. And I just would urge us, I -- we need to develop what's right for America. But we also need to engage the international community, because we need to have better understanding from the international community as to what America is doing in regards to its detention policies as we try to lead internationally on human rights issues. I would just urge you as part of this process to be open and go beyond just our country in trying to get better understanding as to what we intend to do and the reasons why we are pursuing these policies.
ATTY GEN. HOLDER: No, I think you're absolutely right, Senator. I've made two trips to Europe so far and have spent a good portion of both of those trips talking about the issue of Guantanamo with our -- with our allies. The State Department has a gentleman, Dan Fried, who's been literally traveling the world to talk about this issue with other countries.
And so what we're trying to do is to make the world understand that we're trying a different approach, and an approach that I think is consistent with who we are as a nation and that I think will stop the ability of our adversaries to use Guantanamo as a recruiting tool and, I think, rehabilitate some of the relationships with other countries that have been frayed over the last few years.
SEN. CARDIN: Well, I think you're off to a good start, there. I think some of the things that you've already announced are helpful. So I -- we want to be supportive. And as has been indicated on both sides of the aisle, I think there is support for what you're trying to do.
The last point I want to bring up is what some of my colleagues have already brought up, and that's the surveillance statutes. Let me just focus on the three that expire at the end of this year. And again, the Terrorism Subcommittee is going to do some work here. We have the "lone wolf" provisions, the revolving wiretaps -- roving wiretaps and the business records. Those three expire at the end of this year.
And I very much appreciate the fact that you need adequate time to review the effectiveness of these provisions, whether they need to be extended, and, if they need to be extended, whether there needs to be further modifications. But understand that we have an incredibly busy schedule here in Congress as far as floor time is concerned, and these issues are not always without controversy. And I would just urge you as quickly as possible to share information with this committee so that we can make adequate judgments on the reauthorization of these tools that at least the FBI director said are important for national security.
ATTY GEN. HOLDER: Yeah. We'll endeavor to do this as quickly as we can, because we are mindful of the fact that this is obviously a very busy committee, a very busy Congress. But we want to make sure also that we have a good gauge of how effective these tools are, whether or not modifications, slight or major, need to be made. We want to be cognizant of the fact that there are civil liberties interests that have to be examined as well as the law enforcement equities that we have.
So we will be getting, I think, our views to you all relatively soon and certainly, I think, with enough time so that they can be considered as we -- as you all have to consider the reauthorization question.
SEN. CARDIN: Thank you.
Thank you, Mr. Chairman.
SEN. LEAHY: Thank you very much.
SENATOR JON KYL (R-AZ): Thank you, Mr. Chairman.
I second Senator Cardin's motion and appreciate your response. We -- the sooner we get your views on these three issues, the sooner we'll be able to deal with them in an appropriate way.
Secondly, since I'm the ranking member on the same subcommittee and I've been advised we're going to have a hearing on the detainees at Guantanamo, I'd like to also ask you to get some information to us on that. I had asked in a letter that I sent back in May for some information following up on the president's speech, when he talked about the fact that our supermax facilities hold hundreds of convicted terrorists. I had written asking if you could break that down for us.
I don't have a response, so let me just do this: I'm going to submit, for the record, the question, because I know you can't answer it just sitting here, but to find out who they are, what kind of categories of folks that they are, if there are any that are really comparable to the high-value detainees that are Guantanamo today, that would be very helpful to us.
Second. if you'd like to comment on it right now, fine, but to get a sense of what kind of capacity we have, my understanding is that we're way overcrowded in the super-max facilities today. By the way, can you just tell us, do you know whether that's true or not right now, or do you want to respond on the record?
ATTY GEN. HOLDER: Whether they're overcrowded?
SEN. KYL: Yes. My understanding is there is a capacity of like 13,000-something and there are like 20,000 being held.
ATTY GEN. HOLDER: Senator, I would have to get you those statistics. I just don't know offhand.
SEN. KYL: All right, I appreciate that. Two other follow-up questions on that same matter. One has to do with the recruitment of terrorists in jail. We know that's a big problem with this particular kind of militant Islamists, and it's something that the FBI director testified in the House of Representatives about.
Is there anything that you would like to offer us today on that question about how we could prevent that from occurring? Or if you'd like to respond in the same way, I'm happy to receive that.
ATTY GEN. HOLDER: I mean, I understand the concern but I think there are measures that can be taken to minimize that possibility. Terrorists -- people who are considered terrorists are generally held out of the general population, so there is not the ability to interact with other prisoners in the way that some might and have an ability then to try to radicalize them.
And then beyond that, what we've tried to put in place are programs to deal with -- to occupy the time of the people who are in these facilities so that they have alternatives, they have the ability to think of a life outside the prison. And if they have options, if they think that they have a life that they can lead on the right side of the law, they're far less susceptible to these radicalization efforts.
SEN. KYL: Of course, Guantanamo was constructed in such a way as to accommodate this particular requirement. It may be more difficult to do that with the super-max facilities. Without asking you to respond to that today, would you include some information in your response to us? I think all of this will be helpful in preparation for our hearing.
ATTY GEN. HOLDER: Sir, we will detail for you how we think the facilities that we have can be used to minimize the concerns that you have expressed.
SEN. KYL: And the final question in this area is Senator Sessions has pointed out that it would be against the law today to release a terrorist or accused terrorist into our -- into the United States, into our society.
Can you comment on -- I mean, if that's not an option -- in other words, the resolution of the president's dilemma here about closing Guantanamo does not mean releasing anyone into the United States, then I guess we don't have to worry about it. But if it does include that option, what is your response to the point that existing law, the Immigration Nationality Act, would make that a crime, or would prevent it from happening?
ATTY GEN. HOLDER: Well, certainly the House has already passed, as part of its supplemental appropriations bill -- I mean, I guess it's going to be considered by the Senate, and what I'm hearing, my intelligence tells me that it's going to be passed by the Senate. So there will be provisions in that bill that would forbid the bringing into the United States people who are presently detained at Guantanamo. And obviously we will respect that law.
And efforts are underway to try to -- those people who would be either transferred or released, to place them in other countries. That is the focus of our efforts.
SEN. KYL: Thank you. Let me quickly switch now to immigration and drug violence on the border. I tie the two together because unfortunately, as you undoubtedly know better than most of us, the cartels that are now controlling the drugs have basically taken over the control of all of the things that are being smuggled, including illegal immigrants, much to their disadvantage as individual human beings, I might add.
Two general lines of questioning here. And, again, I can ask you to respond to some of this for the record if it would be easier for you.
You and I talked about Operation Streamline. This is the idea where we use existing law to actually prosecute people who are caught crossing the border. They get jail time. And as a result of that, it's a huge disincentive for them to cross because they can't do what the want to do, which is mostly to work, if they're in jail.
And I ask you if you would get some information for us that would be helpful in seeing whether or not we could pursue this across more of the border than just in the Del Rio, Yuma and Tucson sector, since it does seem to be a program that's really working.
We met on May 5th and I asked you to provide me with the estimate of resources, increases in personnel and so on that would be required for this. Do you know whether your folks have been able to come up with that yet?
ATTY GEN. HOLDER: I don't know as yet if we've completed it. I know they're working on it. I'm not sure that we have completed it yet.
SEN. KYL: Okay. Well, then let me include that question in the record as a reminder of the information we were seeking. And as soon as you can get that to us, I think it would be very helpful because we can't get the funding for these things until you tell us what's needed. And obviously we've already gone by one budget cycle.
Also helpful in that regard would be information -- and I'll just ask this for the record -- of how many people have been involved in this program, how well we think it's worked, and so on, if you would provide that for us.
ATTY GEN. HOLDER: Sure, we'll do that.
SEN. KYL: Finally, on the matter of the State Criminal Alien Assistance Program, you're aware that the federal government is authorized to pay states money as compensation for the housing of illegal immigrants who have committed crimes. Our former governor, Janet Napolitano, now secretary of Homeland Security, used to write the attorney general every year and demand payment. Senator Feinstein and I actually got an authorization of $975 million a year.
We need to know whether the Department of Justice has sought that funding. There was no funding in the president's budget. Is there any way that you can ask for supplemental funding to cover that? And, secondly, will you ask for funding for at least a portion of that authorized amount in the budget for next year?
ATTY GEN. HOLDER: I think the administration has made the determination that in dealing with that issue there are better ways to do it than through the use of the program that you mention. I think that's why that is reflected as having been zeroed out in the 2010 budget. So, as I said, I think that is the administration's position at this point.
SEN. KYL: Well, my time is up, but that certainly didn't used to be Governor Napolitano's position, and I would be very curious to know whether she agrees with the proposition, given the fact that she understands what the burdens on states are as a result of the federal government failing to do its job in controlling the border.
ATTY GEN. HOLDER: I think regardless of the position that the administration has taken, that you do raise a valid point, and that is that the federal government has to be sensitive to the burdens that are placed on our state and local partners as a result of enforcement efforts that happen along the border, and we have to find ways in which we alleviate those burdens in working with them.
I think that the administration's position is that, with regard to this particular program, that there are better ways perhaps that we could do this.
SEN. KYL: And I would submit Operation Streamline is one of them, so let's look to pursue that.
ATTY GEN. HOLDER: Okay.
SEN. KYL: Thank you.
SEN. LEAHY: Senator Whitehouse?
SENATOR SHELDON WHITEHOUSE (D-RI): Thank you, Mr. Chairman, and welcome, Attorney General Holder.
Very briefly let me first express my view that the release of the OLC opinions was proper, was necessary, and was wise, and was particularly important in light of the damage that had been done to that office by its politicization during the Bush era. Frankly, those were opinions that had to be seen to be believed.
And it really, I think, gave the legal community around the country a far better appreciation of the depth of the dive that that office took in that period to have those out, entirely apart from all of the other considerations. I think it was the right call and I respectfully but completely disagree with the ranking member on that subject.
Following up on OLC, Senator Durbin asked a few questions about the OPR investigation and its status. When we first asked, we were told on February 18th of 2008, that this investigation was already pending, so we know it predated February 18th of '08.
We know that OPR completed its investigation and provided a draft report in late December of '08. We know that on May 4th of this year the comment period for those who were the subjects of the investigation closed in their chance to respond to the draft. And we also know that the CIA was given an opportunity for both substantive comment and for classification review.
My first question is, is it now the CIA through which requests for either substantive comment or through its role in classification review that is holding up the release of this report?
ATTY GEN. HOLDER: No, it's not, though that process might not be complete. There are other things that still have to be done within the Justice Department. I met yesterday with the head of OPR, who indicates there are still some things that they are working on in the preparation of the report, chiefly in response to the responses that were received I guess in early May or so, and they are dealing with that.
He is new to the Office of Professional Responsibility, understands the seriousness of this particular report, and that's also had an impact on the timing of the release.
SEN. WHITEHOUSE: The role of the CIA, both in substantive comment and in classification review, raises some interesting potential conflicts of interest. Can you tell me what assurances the Department of Justice has received from the CIA that those who seek to influence the OPR report through substantive comment or those who have the effect of delaying the report through classification review are not complicit or involved in the underlying conduct?
Have you got essentially a clean scrub of those at the CIA who are involved in those processes to assure that they're not tainted by the program that is the subject of the report?
ATTY GEN. HOLDER: As I think I testified earlier, it is our hope to release as complete a report as we can, and one of the things that I think we want to do is to declassify as much of this report as we can so that when people read it, either in this body or the general public, they'll have a full feeling for what it is our lawyers in the Office of Professional Responsibility dealt with and what is the basis for the conclusions that they reach.
And so we'll be pushing, as I said, to declassify as much of this report as we can so that the American people will have a real sense of what it is that drove the conclusions that we reach.
SEN. WHITEHOUSE: I appreciate that but it doesn't address the question of whatever assurances you got from the CIA, that in the discharge of their either substantive comment or classification review roles, that the people involved in that, you can assure us, actually had clean hands with respect to this program and are giving legitimate, untainted, unbiased, unimplicated advice.
ATTY GEN. HOLDER: Yeah, I don't think we have gotten anything yet from the CIA, at least nothing that I'm aware of, with regard to what their position is concerning the declassification issue.
And so I think I have to wait for that and see -- there may be -- this may be not an issue at all, and to the extent that it is an issue, then I would interact with Director Panetta and raise the questions that you raise, in addition to just our general feeling that we want to have as much of this declassified as we possibly can.
I mean, it will be the director I think will ultimately make the decision, who I don't think is actually tainted by -- I would be dealing with him in trying to make determinations as to what should be and should not be declassified.
SEN. WHITEHOUSE: And on the question of their substantive comment on the contents of the report, how do you assure that that isn't tainted by people who are implicated in the program?
ATTY GEN. HOLDER: I'm actually --
SEN. WHITEHOUSE: Isn't that an important point?
ATTY GEN. HOLDER: Yeah --
SEN. WHITEHOUSE: I mean, we're talking across each other.
ATTY GEN. HOLDER: No --
SEN. WHITEHOUSE: Is it or is it not important that the CIA, in exercising its substantive comment role that it sought, and in performing the declassification review, should be doing so in a manner that keeps the agency's hands clean of implication in the underlying subject of the report?
ATTY GEN. HOLDER: Yeah, I'm less worried about the substantive comments. I mean, I think we certainly would invite the comments from any involved agency, but ultimately it would be the Justice Department lawyers who will make the determination as to what goes in the report, the conclusions that the report reaches.
And so I certainly want to give them the opportunity to express whatever their views are, but that, the content --
SEN. WHITEHOUSE: Would they be likely to evaluate the recommendations of the CIA differently if on the one hand the CIA had not assured the department that its recommendations were coming from individuals who had clean hands versus those who did not? Is that not an important factor in evaluating the substantive comment that the CIA would seek to propose?
ATTY GEN. HOLDER: Yeah, I guess those are things that one would take into consideration, but so much of this is really fact-driven. That I think is what people I think will find in the report.
It is fact-driven, really, and the conclusions that one draws from the facts I guess can differ, but ultimately it will be the Justice Department's view that will control, based on the facts that we have uncovered, but, as I said, taking into account whatever other views people have of those same facts.
SEN. WHITEHOUSE: Thank you, Attorney General.
My time has expired, Chairman.
SEN. : Thank you very much.
SENATOR AMY KLOBUCHAR (D-MN): Mr. Chairman, thank you. Thank you for being here, Attorney General Holder. I was listening to some of my colleagues going through some of the cases and the concerns that they had, and I think a misplaced argument about politicization. And as you were talking I was thinking, what was the most high-profile case that you have dismissed, white-collar case, since you came into office? What would you say that is?
ATTY GEN. HOLDER: Well, I'd probably say it was the Senator Stevens --
SEN. KLOBUCHAR: That would be correct, yes, the Republican senator. And then I was also thinking of a decision you made early on to allow the Republican-appointed U.S. attorneys to stay in place until new U.S. attorneys had been appointed. Was that the policy, do you know, when Bush came into office, of allowing the previous U.S. attorneys to stay on for a length of time?
ATTY GEN. HOLDER: To be honest, I don't know what exactly the policy was. The concern that we had, though, was to maintain continuity in the U.S. attorneys' offices and to leave in place those people who were doing a good job.
There has been turnover but we have not pushed anybody out. We are starting now to get our nominees before this committee and hope to have them confirmed and in place relatively soon.
SEN. KLOBUCHAR: And how many nominees have been confirmed by this committee so far, for the U.S. attorney?
ATTY GEN. HOLDER: None so far.
SEN. KLOBUCHAR: Okay. So you would like to move that along I would hope.
ATTY GEN. HOLDER: Yeah, that would be, for us, a priority, to get our U.S. attorneys in place as quickly as possible. It's good for the offices, it's good for our law enforcement effort, it's good for us as we try to get our program together.
I would also urge, respectfully, that this committee and the Senate act on the other nominees for other Justice Department positions that have been sent up, everything from tax, the Environmental Natural Resources Division, OLC. There are a variety of positions that are still awaiting Senate approval.
SEN. KLOBUCHAR: Very good. And I can tell you, in our state it's worked very well. We had, as you know, a lot of uproar over a political appointment, and then Attorney General Mukasey put someone new in. He is still staying on until the person I suggested has now been recommended by the president, and we're hoping that we can get him in there soon. We have some major cases pending in our jurisdiction.
The other interesting thing -- this is just my most interesting thing I learned this week, Attorney General Holder -- as I recommended a marshal -- do you know there's 94 marshals? Do you know how many are women, in the country?
ATTY GEN. HOLDER: No, I do not.
SEN. KLOBUCHAR: There is only one, in the state of Florida, and I thought that was quite interesting. I thought I would share that with my colleagues as we recommend people as we go forward.
I'm going to just ask a few questions about things that are a little closer to home that people have bee focused on in my state, and that is some of the white-collar fraud. The Madoff case hit a lot of people in our state. As we know, that came in through a whistleblower to the SEC and nothing was done.
Could you talk about what's going on with the initial steps to implement FERA, as well as some of the other changes to enforce some of the white-collar laws, as we look at a large amount of money going out there, we look at the TARP money, things like that, that there could be even more white-collar fraud?
ATTY GEN. HOLDER: Yeah, we are in the process of ironing out I think what I will call the last wrinkles in what is going to be a comprehensive announcement about the program that we're going to have with regard to financial fraud, white-collar crimes more generally, mortgage fraud. We have been working with our state and local counterparts, with the other federal agencies to come up with this effort.
This is a priority for this Department of Justice, to hold people accountable who have defrauded huge numbers of people with almost unheard of amounts of money, or those who would seek to misuse the recovery money that is now being -- now trickling into the economy.
These are things that we will be taking very close looks at and will be emphasizing in our enforcement efforts.
SEN. KLOBUCHAR: And I know you're also working with Secretary Sebelius on the health care fraud prevention as we're going into the summer, focusing on health care. There is still a significant problem with health care fraud. Estimates could be 3 to 10 percent of the total amount of spending, you know, amounting to billions of dollars.
I saw cases myself as a prosecutor of identity theft in hospital settings and things like that. I think that it will be very important as we move into this heath care debate that the work that you're doing with this new focus is understood. Do you want to talk a little bit about that?
ATTY GEN. HOLDER: I would totally agree with that. I mean, if you look at the statistics for last year I think we spent $1.2 billion that was recovered as a result of the fraud found in the health care system. That is why Secretary Sebelius and I have made this a priority, and it is why we have announced a joint effort to look at these issues in two additional cities in addition to what we're doing more generally.
I mean, that's a lot of money, when you think about $1.2 billion in actual money received by the federal government as a result of its enforcement efforts. And we plan to keep those efforts as strong as they are, as robust as they are.
SEN. KLOBUCHAR: And one of the things that came out in the FBI's Financial Crimes Report for 2007 was that they're actually seeing some cases -- and I care about this a lot because I come from a state where we really value high-quality health care and we haven't had a lot of issues with this, but there have been recent health care fraud cases which included medical professionals risking patient harm with unnecessary surgeries and things like that. What are you doing to combat this particular kind of fraud?
ATTY GEN. HOLDER: Right. I mean, that's a very good point. There is not only an economic consequence to some of the fraud that we see. There are health care outcomes that get affected in a negative way by at least some of the things that we've seen. And that I've found, to be very honest with, very surprising when I became attorney general and saw the results of some of these FBI efforts.
And so we are going to be looking not only at the financial aspect of this but the -- in some ways the ultimate fraud: whether or not patients are getting the care or the government is getting the care for which it is paying, and whether or not people's lives are being put at risk.
To the extent that we prioritize this, although the financial component obviously will be important, what we really will emphasize is making sure that no one's life is put at risk, and that the kinds of treatment that people are expecting to get, they are in fact actually receiving.
SEN. KLOBUCHAR: And one last issue, and I can talk to you about it later, but it's just the upcoming reauthorization for the Violence Against Women Act. We had a very good hearing here that Chairman Leahy conducted, and we had a focus on some of the new trends and things that are happening there.
And one of them is just because of economic problems, states not being willing or unable to pay and help with things like rape kits and other things, and a line-up -- I think L.A. County is the worst -- of these tests that haven't been done on some of the rape kits, when in fact we could be potentially finding and prosecuting people who are committing sexual assault.
And so that's just something I'm sure we'll talk about in the future, but it's something I'm very concerned about.
ATTY GEN. HOLDER: I look forward to working with you on that.
SEN. KLOBUCHAR: Thank you.
SEN. : Senator Specter?
SENATOR ARLEN SPECTER (D-PA): Thank you, Mr. Chairman.
Mr. Attorney General, I join my colleagues in welcoming you here, and compliment you on your many abilities, including handling a marathon. I begin on the question of the immunity for the telephone companies. It's been subject to a lot of analysis and a lot of consideration by the Congress.
I had pressed an amendment to substitute the government for the telephone companies as the parties' defendant. The provision on immunity I thought very troublesome because what it does, in effect, is take away the jurisdiction from the district court to determine what has happened.
It's a more sophisticated way for -- (inaudible) -- which, on Constitutional issues, I find unacceptable.
It's not the Supreme Court of the United States, but Marbury v. Madison established judicial supremacy here. And the position which I pressed was to have the government substituted as the party defendant. I thought the telephone companies were good citizens. They ought not to be subject to damages, not subject to the costs of litigation.
What's wrong with that as the preferable course to immunity, which keeps the courts open to determine what happened, and not deprive parties' plaintiff of their Constitutional rights, and let the government bear the cost of whatever is involved because it's something for the benefit of the government?
ATTY GEN. HOLDER: Well, I mean, this was obviously something that was debated at great length months, or so, ago - many months, or so, ago, I think, in a determination made that, given what the telecom companies had done, the reasons why they had done it, their interaction with the government, that the immunity provision was appropriate.
We have been conducting ourselves on the basis of what I consider to be, at this point, settled law. And, as I said, I think the debate was a robust one. There are people who certainly have --
SEN. SPECTER: This debate within the Department of Justice?
ATTY GEN. HOLDER: No, I meant - I meant in Congress. And, more generally, I suppose --
SEN. SPECTER: I know about that debate. I wouldn't say it was robust. I would say it was fallacious. But, how about the attorney general's position, the position of the Department of Justice? Why not do that?
ATTY GEN. HOLDER: Well, I think --
SEN. SPECTER: Have a substitution?
ATTY GEN. HOLDER: I think the administration has taken the position that we are now dealing with - a determination has been made by Congress, we're dealing with existing law; and we are proceeding in that way.
SEN. SPECTER: On the issue of the substitution, this is not the - obviously determinative, but then-Senator Obama voted in favor of the substitution. Would that influence you at all?
ATTY GEN. HOLDER: Well, I will talk to - I mean, you know, if this was something the president wanted to revisit, I would certainly listen to where he is now. I don't know if he's in the -
SEN. SPECTER: Think there's a difference in institutional approach, from being a senator to being a president?
ATTY GEN. HOLDER: Possibly, possibly. He may have the same position, he may not. I don't know. But, he's my boss. I would listen to him.
SEN. SPECTER: Well, Mr. Attorney General, Attorney General Mukasey, your predecessor, invoked the immunity defense. Did you make an independent determination, after becoming attorney general, as to whether the immunity defense should be invoked?
ATTY GEN. HOLDER: Should be? I didn't hear the --
SEN. SPECTER: Should be invoked?
ATTY GEN. HOLDER: I'm not sure I - I'm not --
SEN. SPECTER: There was a period of time - before the court decided the case, after you became attorney general, and there was speculation, at least in the media, that the new administration might not seek to invoke the immunity defense in that case. And my question to you is, did you consider not using the immunity defense?
ATTY GEN. HOLDER: Well, as I said, I think we dealt with the question based on the law as it existed. And, given the fact that Congress had spoken, it didn't seem to me that there was a huge amount of flexibility that the department had. And so it seemed to me, the immunity having been conferred, that that was - that pretty much settled the question.
SEN. SPECTER: Well, you're the attorney general. I recollect even district attorneys have discretion as to how you handle cases quasijudicial. If you think it's an unfair defense, you don't have to invoke it. But, let me move on.
Chief Judge Walker has some really fascinating cases in front of him in a number of directions. And I'm concerned about having a determination made on these matters by the Supreme Court of the United States. I've introduced legislation Senate Bill 877, which would mandate the Supreme Court to take up issues like the Terrorist Surveillance Program.
That case was never decided. The federal court in Detroit found the Terrorist Surveillance Program unconstitutional. The Sixth Circuit reversed, on grounds of standing, a very inflexible standard, with the dissent, in my opinion, being much more authoritative than the majority opinion. It looks to me like it's a matter they just didn't want to decide. And then the Supreme Court of the United States denied certiorari.
And there you have a classic case of conflict between Congressional authority, under the Foreign Intelligence Surveillance Act - which provides the exclusive means for obtaining warrants, and the assertion of the president of his Article II power as commander in chief. And one of the questions that I intend to explore with the nominee, Judge Sotomayor, is her standards for what cases should be taken.
Wouldn't ask her questions as to how she would decide something, but I think it's fair to ask a question. Sometimes it's more important what cases the court turns down than what they decide in cases.
Would you think it worthwhile to - would you think it appropriate to have a mandate that the court take cases like a Terrorist Surveillance Program?
ATTY GEN. HOLDER: I'm not familiar - I've not read it, the proposed statute. I'd be a little concerned about - I don't know, you know, not much of this has been done in the past, but a separation of powers concern about mandating Supreme Court review in a particular matter. Obviously, the court's jurisdiction can be defined --
SEN. SPECTER: Well, we have the authority -
ATTY GEN. HOLDER: Right.
SEN. SPECTER: -- Congress has the authority to do that, and it's done it in a fair number of cases.
ATTY GEN. HOLDER: Right. But, I mean, my only concern would be, you know, not a technical separation of powers question -I think that Congress probably does have that ability, but whether or not it's an appropriate use of Congress' authority.
As I said, I've not had a chance to review the proposed bill, and I'd have to look at that before I could comment in a more intelligent way.
SEN. SPECTER: Would you take a look at the proposed legislation, and respond?
And, Mr. Chairman, I ask consent that a letter that I sent to Attorney General Holder be included in the record concerning health care costs. The subcommittee had a hearing on that, and we had testimony that there are some people who are claiming money under Medicare and Medicaid who are deceased, and doctors who are submitting claims who are deceased. And, looking at ways to save money, that's really on the front burner. If you could take a look at that letter and respond, I'd appreciate it.
SEN. (KOHL ?): Without objection, the letter will be made part of the record.
SEN. SPECTER: Thank you, Mr. Chairman.
Thank you, Mr. Attorney General.
ATTY GEN. HOLDER: Thank you, Senator.
SEN. (KOHL ?): Senator Schumer.
SEN. SCHUMER: Thank you, Mr. Chairman. It's good to call you "Mr. Chairman."
I have three questions. We'll try to get them done quickly. I know you have to get to the House and do the same thing here, so, my appreciation and sympathies.
First, on hate crimes: I know you've spoken about the need to pass improved hate crimes legislation. I think we have to move this legislation quickly. It seems to - it's hard for me to believe that people oppose hate crimes legislation aimed, you know, aimed to protect any group, whether it be religious, racial, ethnic or sexual orientation.
Would the administration support a move to bring hate crimes up very quickly here and help us try to get that through?
ATTY GEN. HOLDER: Absolutely, Senator. This is a priority for us.
I testified on behalf of this hate crimes bill 10 years ago when I was the deputy attorney general, so I don't think this is something that we're doing in great haste. I mean, this is something we've been thinking about for a decade. And, given the recent events that we've seen in this nation, I think the need for this legislation is all that much more apparent.
SEN. SCHUMER: Second, as you know, my staff has been working with yours, and the White House, on a reporters' shield bill. Senator Specter and I, when we were on opposite sides of the aisle, had a bipartisan bill. Now it is, I guess, it's still a bipartisan bill. There are other members of the other side on the - who support it, although they're welcome to come over, like Senator Specter did - (laughter) - and make it a partisan bill. But, in any case, we are talking about it.
Two questions: Can the Department of Justice support a well- balanced reporters' shield bill? And can you commit to working with Senator Specter, myself and, of course Chairman Leahy to get such a bill to the floor quickly as possible so we can pass it this year?
ATTY GEN. HOLDER: Yes. I think the department can support - the administration can support such a bill.
The concern we have, again, is with protecting - making sure that the bill doesn't impede our ability to protect national security or our ability to prosecute those who would leak national security information. But, even given those concerns, I think there is a way in which we can construct a bill that all would find acceptable.
SEN. SCHUMER: But, I would just urge - your staff and my staff have had good negotiations, but to move those, and conclude those. I don't think we're that far apart, and I think we can still -
ATTY GEN. HOLDER: I think that's right.
SEN. SCHUMER: -- protect whistleblowers and people like that, and at the same time not deal with state secrets.
There was a bill, as you know, that was way over, and just said - almost no recognition of either secrecy, grand jury secrecy, or things like that, or secrets. That is not our bill.
Our bill is a balanced bill, and we need you to get on board as quickly as possible. And we're willing to make changes.
Third and last question I have is ICE authority. Senator Feinstein talked a little about some drug trafficking. And we are facing a sustained and organized effort by sophisticated cartels. But ICE doesn't have clear Title 21 authority to deal with all forms of illegal contraband, particularly in the context of border enforcement and enforcement at our ports.
The issue was just raised yesterday in The New York Times by a senior Bush adviser on homeland security. It makes no sense for the main agency stationed along the border to lack power to arrest criminals there.
So two questions, my two last. Do you intend to remedy the arrangement you currently have with ICE to give ICE agents authority to arrest drug smugglers on the border? And what is the status of any discussions you're having with the Department of Homeland Security about remedying this problem?
ATTY GEN. HOLDER: This is an unbelievably timely question. As we left the White House last night at about 7:15, 7:00, Secretary Napolitano and I were talking about --
SEN. SCHUMER: Yeah, I talked to her about it this week.
ATTY GEN. HOLDER: Right -- we were talking about this very issue. And I think we're in a position to announce that we have an agreement. I don't want to steal anybody's thunder here, but we have reached, I think, essentially an agreement, and I think it's going to be announced within days.
SEN. SCHUMER: Well, I think you just announced it, and I'm glad you did.
ATTY GEN. HOLDER: Don't count this as a formal announcement.
SEN. SCHUMER: It's not a formal announcement. It's an informal announcement of an agreement. But it makes eminent sense to do. And it really hampers our ability to control our borders when the agency that's doing all the patrolling has to call somebody up and they have to get in a car, especially when you're dealing with people you're tracking down and chasing and everything else. And so I'm glad that you and Secretary Napolitano have come to an agreement. I spoke to her last week about it, and she seemed very positive as well.
ATTY GEN. HOLDER: Right.
SEN. SCHUMER: Mr. Chairman, I yield my remaining two minutes and 25 seconds so that the attorney general can have some lunch before he has to get over to the House.
SEN. BENJAMIN CARDIN (D-MD): With your indulgence, Mr. Attorney General, there are a few members who would like to have a second round. I think we can handle it pretty quickly if you're prepared to continue.
ATTY GEN. HOLDER: That's fine.
SEN. CARDIN: Senator Sessions.
SEN. SESSIONS: Thank you.
Mr. Attorney General, with regard to the question earlier about the inspector general's report of the OLC memorandum, I understand it that the Department of Justice under your leadership has stated they think it was appropriate to allow the lawyers who participated in that to be able to respond to the report initial draft. Is that right?
ATTY GEN. HOLDER: Sure, I think that's fine, yeah.
SEN. SESSIONS: That's what -- somebody suggested otherwise, but that's what the Government Accountability Office does when they make a report. They give the people a chance to do that. And I understand that Attorney General Mukasey and maybe others have asked that they be able to submit a letter as a part of that report. Have you decided whether they would be able to have their response made a part of that record?
ATTY GEN. HOLDER: Yeah, we actually have views expressed by former Deputy Attorney General Filip and former Attorney General Mukasey. It would be my intention, subject to their approval, to include their comments, their views, as part of the release of the report. I mean, I've not checked with them, but I assume that they would not have objection to that. And assuming they did not, I would make that a part of the report.
SEN. SESSIONS: Previously, you've heard reference to warrantless wiretapping, and suggesting this was a great violation of constitutional rights. But for the most part, as I understand these difficulties, they arise from a lawful intercept, maybe in a foreign country, maybe of a satellite phone or something in Afghanistan. And those are legally intercepted -- I think e-mails could be too -- as part of an intelligence-gathering operation.
What happens is -- and that's lawful. It's lawful with regard to that individual. Now, if they, all of a sudden, make a phone call to some terrorist cell in the United States, someone could argue that's illegally wiretapping an American citizen.
But isn't it, in truth, the intercept is of a person identified as part of an intel operation outside the United States, and that has never been considered something that's controlled by warrants?
ATTY GEN. HOLDER: So you're saying that you actually have existing authority on somebody who's overseas who happens to place a call into the United States.
SEN. SESSIONS: That's correct.
ATTY GEN. HOLDER: It would --
SEN. SESSIONS: That's what we've been arguing over, frankly. It's been -- if you wiretap a Mafia leader and he calls somebody who the court does not have an approval of, you can listen in on that conversation. Isn't that right? Isn't that part of the approval? So if you have a lawful tap on a foreign person, I think the principle is the same. That's all I'm saying. And I think we've exaggerated the extent to which this is somehow violative of our Constitution. That's just my personal view of it.
ATTY GEN. HOLDER: I would agree with that, except there are obviously minimization requirements that you --
SEN. SESSIONS: There are minimization requirements. And if you go to the center here that deals with that, they have incredible discipline on those issues. But with regard to your statement concerning the Office of Legal Counsel's opinion, apparently concluding that it's unconstitutional, the D.C. voting bill that was passed, the Congressional Voting Act, you say you're hesitant to release those internal memoranda. But apparently members of this committee think it's right to demand those kind of releases and have demanded, for example, the terrorist interrogation memorandums, and actually have -- they've had the legal analysis for some time.
It bothers me you had no real concern, or the president didn't, to release portions of those memorandums that deal explicitly with techniques that could be used, which I think could be helpful to the enemy. That's the way I would see that.
ATTY GEN. HOLDER: Well, with regard to those memos, I mean, the decision the president made was based on, I guess, a couple of factors. One, the information that was contained in those reports was largely public. The techniques that were described in those memos had been banned by the president. And we also thought that the continued use of those techniques or (the thought that ?) those techniques were going to continue to be used also gave a propaganda victory to those who wanted to do us harm. And for all those reasons, we thought that the release of those OLC memos was appropriate.
SEN. SESSIONS: Well, it was disapproved by your predecessor, Judge Mukasey, and Mr. Hayden, the CIA -- DIA director. They didn't approve of that at all. And I don't think it was necessary. And I think it makes your opinion that you're hesitant to release internal memorandums concerning the D.C. voting bill is less persuasive, frankly.
ATTY GEN. HOLDER: I disagree, I mean, because I think they're fundamentally different. But --
SEN. SESSIONS: One is political and one has to do with life and death. They're different, in my opinion.
ATTY GEN. HOLDER: Well, no, I wouldn't agree with that. I mean, I think we used neutral and detached principles in making the decisions in both cases. There was not a political component in the decision to seek -- in releasing some material and withholding others. There was no political consideration on my part at all.
SEN. SESSIONS: Well, one involved nothing but a matter of important legislation of a political nature here in the Congress, and that's what you don't want to release. But you were willing to release a matter that the DNI and the attorney general believed were damaging to our national security.
ATTY GEN. HOLDER: Well, one attorney general thought that. I am the attorney general of the United States, and it is this attorney general's view that the release of that information was appropriate, as well as the president of the United States. I respect their opinions, but I had to make the decision holding the office that I now hold.
SEN. SESSIONS: With regard to the Guantanamo, I just would offer that we do give them now initial review, a thorough initial review when someone was brought into Guantanamo, and we give them an annual status review. So I'm not sure what else you're going to add to that. I'm willing to hear. But we are doing those things, as Senator Graham has worked on, to try to make them effective and appropriate under the case law and statutes of our country.
Do you think, with regard to the firearms question, that the right to keep and bear arms is a fundamental right under the Constitution?
ATTY GEN. HOLDER: Sure. It's a Second Amendment right.
SEN. SESSIONS: And it's a fundamental right.
ATTY GEN. HOLDER: Yes. The Supreme Court has indicated as such.
SEN. SESSIONS: Actually, they haven't.
ATTY GEN. HOLDER: I'm sorry, I didn't --
SEN. SESSIONS: Actually, they haven't. It's a matter of some significance that in the Heller case they simply held that the Second Amendment applied to the federal government. They footnoted that they weren't saying whether or not it applied, and apparently the test as to whether it applies to the states is a question of whether it's a fundamental right.
ATTY GEN. HOLDER: That's a good point, and I need to go back to law school. You raise a very good point, Mr. Sessions.
SEN. SESSIONS: It is a big deal, because the 2nd Amendment will be eviscerated if it's not considered to be a fundamental right and pass -- and bank-applicable to the states.
Thank you. My time is up.
I look forward to working with you. We'll disagree on some things. You're a good advocate for your views; I congratulate you on that. (Laughter.) But this is a serious matter we're dealing with, national security.
ATTY GEN. HOLDER: Sure. And obviously, we have worked together well. You've been supportive of me when you thought that was appropriate. You've taken me to ask when you thought that that was also appropriate.
And you've actually be a teacher for me today, so thanks for -- thank you for that.
SEN. CARDIN: Senator Graham.
SEN. LINDSEY GRAHAM (R-SC): Thank you, Mr. Chairman.
I know you've got to go to lunch, and I appreciate your patience. You've done a very good job of testifying before the Committee.
I just talked with the White House a moment ago, Rahm Emanuel, and he's indicated to me that the president will not let these photos see the light of day, that he would prefer the Congress to act.
Have you seen the Lieberman-Graham amendment to the supplemental that would prohibit the release of these photos for a three-year period, (and that ?) the secretary of Defense certifies them to be a danger to our troops and civilians overseas?
ATTY GEN. HOLDER: I have not seen that --
SEN. GRAHAM: Okay. Fair enough. I will get it to you.
And do you agree with me that it would be the preferred route, in terms of impressing the court, that Congress would act on this subject matter, rather than an executive order?
ATTY GEN. HOLDER: Yes. I think that having Congress act would be a preferred way in which to --
SEN. GRAHAM: Would give us a stronger hand and a better way to deal with this issue.
ATTY GEN. HOLDER: Yes, I do think --
SEN. GRAHAM: And I'd just like to let the Committee know my beef is not with the courts. I think unless these documents are classified or Congress acts, the courts are making a reasonable interpretation of the Freedom of Information Act as it exists today.
And I want to applaud the administration for asking them to stay and have the Supreme Court review that case. But quite frankly, Mr. Attorney General, I would be very -- I would not be surprised if the Supreme Court decided not to hear this case or honor your petition for certiorari and let the order stand.
So I think it's very imperative that one of us act, the Congress or the administration. I've been assured by Rahm Emanuel and yourself, I think, that the president's position is not to let these photos see the light of day.
We're going to -- the majority leader's going to give us another vote in the Senate, and I would ask the administration, after that vote, to urge the House to take it up. Because that's the best way to protect the troops.
Do you agree with that?
ATTY GEN. HOLDER: I do. I think that there are compelling reasons why these photos should not be released.
SEN. GRAHAM: Sure. And I would like to introduce into the record the statements of General Odierno and Petraeus that were filed by the government as part of the -- their declaration as part of the lawsuit indicting the danger to our troops if the photos are released, to back up what you're saying.
SEN. CARDIN: Without objection -- be included in the record.
SEN. GRAHAM: Thank you, Mr. Chairman.
The Military Commissions Act, I'm amazed. We're eight years into this war, basically, since 9/11. This September will be the eight- year, eighth anniversary, and we're still talking about how to do this. And it's very complicated.
And most of your questioning today has been about matters, legal matters surrounding the war.
And I'll continue to call it a war. You can call it anything you'd like.
But the Military Commission Act, the administration would like to make some changes. I agree with that.
I'm working with Senator Levin and McCain in the Armed Services Committee to make some changes in the next few weeks for the defense authorization bill.
I would urge you to get with us soon. Will you do that?
ATTY GEN. HOLDER: Yes, we will. We have been discussing this internally. We have some thoughts and proposals, and I think it's time for us to share those.
SEN. GRAHAM: And I would like to do more than just amend the administration -- Military Commissions Act. I'd like to deal with this third bucket, this -- folks that may not be subject to trial but too dangerous to let go.
And the reason I say is that we're losing -- whatever damage we're trying to repair with the international community over Guantanamo Bay, we're losing the public here about closing the facility.
When you look at the polling data, there's been a severe change against the idea of closing Guantanamo Bay. Have you noticed that?
ATTY GEN. HOLDER: Believe me, I've noticed it.
SEN. GRAHAM: (Laughs.) I'm sure the president has.
ATTY GEN. HOLDER: I think it was -- (word inaudible) -- I remember one of the senators about the notion of having our plan out there. And I think that is something that we are planning to do and that we need to deal with quickly as possible.
I think we need to have our views on the entirety of this --
SEN. GRAHAM: Exactly. Yes.
ATTY GEN. HOLDER: -- our comprehensive views on buckets one, two, and three and all the related things, out as quickly as we can.
SEN. GRAHAM: And a habeas review. I -- one, I want to congratulate you for appealing the District Court's decision to apply habeas corpus rights to detainees at the Bagram Air Base.
Why did you do that?
ATTY GEN. HOLDER: It's our view of the law --
He's a very good judge, a person who I've worked with.
SEN. GRAHAM: Sure.
ATTY GEN. HOLDER: I think that the judge is just wrong. I just don't think that habeas applies to -- theaters of war.
SEN. GRAHAM: It would really disrupt the war effort if our troops and their commanders would be subject to appearing before federal judges, called off the battlefield all the way back to the United States. It would really be disruptive and something that's never been done before, is that correct?
ATTY GEN. HOLDER: As far as I know. And that was the reason why we decided to seek the appeal.
SEN. GRAHAM: Now, Senator Leahy and Specter, a couple of years ago, introduced a habeas reform bill allowing detainees at Guantanamo Bay who now have habeas rights a one-time shot at it. And they could not bring money damages suits against our troops.
Are you supportive of making sure that any habeas petition doesn't allow the terrorist, the accused terrorist to sue our own military members?
ATTY GEN. HOLDER: I've not looked at that bill, but I have to tell you I have a visceral positive reaction to that view.
Clearly, we want to have habeas rights that protect the welfare of the people who are being detained, but the notion that our troops might be the subject of lawsuits is something that I -- I'd be very worried --
SEN. GRAHAM: And the only reason I mention it's because lawsuits were brought against a Army doctor for medical malpractice by one of the detainees.
So we have streamlined habeas procedures in other areas of domestic law, is that correct? Post-conviction relief?
ATTY GEN. HOLDER: We do.
SEN. GRAHAM: Yes. So there's no right of anybody to an unlimited habeas appeal?
ATTY GEN. HOLDER: That's true. I'd like to look at what the specific proposal might be.
SEN. GRAHAM: What I want you to consider is that since these detainees have habeas rights, that we can look at consolidating their cases to the uniform standards so we don't have different standards by different judges. And to put the burden on the government to make sure that we have a uniform way of looking at this.
And this is something we need to talk about sooner rather than later, because as the Armed Services Committee moves forward on amending the Military Commissions Act, I think there will be a comprehensive proposal coming out from Senator McCain and myself, and I'd like to work with you about how to do that.
ATTY GEN. HOLDER: Sure. I look forward to working with you.
SEN. GRAHAM: Final thing.
If we're following a satellite phone in Afghanistan and we believe the person in question is am ember of the enemy force, what is your understanding of the law if they're talking to someone else in Afghanistan but, due to the routing system, it goes through an American interchange, do we have to get a warrant in that situation, and does that make sense, if we do?
ATTY GEN. HOLDER: So we have two parties overseas, two parties in Afghanistan --
SEN. GRAHAM: Being monitored by our military, or --
ATTY GEN. HOLDER: (Word inaudible) -- by the military.
SEN. GRAHAM: Right. They're active combatants. They're being monitored by our military intelligence services. They're talking to each other in Afghanistan.
And the only connection to the United States is that due to the phone system in question, they have to go through an interchange in the United States.
What's your view of the law as to that circumstance?
ATTY GEN. HOLDER: It is not my view that we would need a warrant, if that's the question you're asking me, in order to intercept that conversation. But I -- let me make absolutely certain of this. I don't believe we'd need a warrant. I think it depends on the location of the parties.
SEN. GRAHAM: Right. The only reason I mention this -- and I know I'm running over my time -- is that when we had the two soldiers kidnapped in Iraq, during this whole debate about wiretapping, they picked up communications from one of the kidnappers to someone else in Iraq.
And because it went through an exchange in the United States, it took two hours to get approval to monitor -- to continue to monitor that conversation and we lost valuable time.
Please look at this and make sure that we're not, in the name of making ourselves to be a rule-of-law nation, not doing something unrequired and, quite frankly, stupid.
I don't want Americans to be monitored as being suspected fifth column movement members of al Qaeda. If you think I'm a member of al Qaeda, I want you to go get a warrant if I'm talking to somebody overseas. I want you to -- any American in that situation.
But when it comes to battlefield communications, let's don't let this debate hamper our ability to protect our troops, and I'm afraid that's where we're headed.
ATTY GEN. HOLDER: Yeah. If, again -- just to clarify, if we have two non-U.S. persons speaking to one another, I don't think there is the need for --
SEN. GRAHAM: But I can tell you, in this case, because an American phone company's interchange was involved, they lost valuable time.
Please look at that and I'll talk with you further about it.
ATTY GEN. HOLDER: Okay. Thank you.
SEN. CARDIN: Attorney General Holder, let me ask you, if I might, about voting rights cases, because we haven't really touched on that too much during this hearing.
The -- Section Five of the Voting Rights Act, we all know that this is on appeal to -- this is on hearing now before the Supreme Court. I was there during the oral arguments.
But the preclearance Congress has felt was a very valuable tool to deal with potential and actual discrimination against voters. And Congress recently acted to reauthorize the Voting Rights Act.
I just want to get your views as to how important you think the preclearance provisions are, and how you will be monitoring what the Supreme Court decision might restrict.
ATTY GEN. HOLDER: Well, obviously, we wait -- await the Supreme Court's decision. But that portion of the Voting Rights Act is a key for our efforts in trying to protect the voting rights of all Americans.
If you look at just the numbers, the number of -- even though we've made great progress in this nation, the number of cases that are brought under that section have not dwindled.
The fact that Congress unanimously -- three years ago, two years ago -- reauthorized the Act, I think, is a recognition on the part of Congress that the need still exists.
We argued, I think, very strongly for the continued validity -- viability of that section, and it is our hope that the Court will agree.
We will see what the Supreme Court opinion is, and then obviously have to react to it.
But it is our view, it is this administration's view, that Section Five is a critical part of the Voting Rights Act.
SEN. CARDIN: Well, I'm glad to hear that. I strongly agree with you and I think most of the members of Congress strongly agree with you, with that statement. We hope the Supreme Court will likewise see the relevancy of continuing the Voting Rights Act in preclearance.
But it needs to be monitored closely. And one of the issues that I've raised in previous hearings with you is the aggressive action of the Department of Justice in protecting the fundamental rights of all Americans to be able to cast their votes and to have those votes properly counted. And we will continue to monitor that situation.
I just want to also add my support for your statements in regards to the Hate Crimes Statute, in response to your initial statement and Senator Schumer's comments. We really are looking for an opportunity to advance the statute, for all the reasons that you have said in your statement and response to questioning.
And then lastly, I just want to make sure I put on the record legal services and pro bono. I mention them frequently and I don't want this hearing to go without a strong effort to make sure that the Department of Justice is the leader in access to our legal services by all of the people of this nation.
I think the attorney general in the Department of Justice can play a very important role.
ATTY GEN. HOLDER: I agree with that. We talked about this during my visit with you during the confirmation process. And the concerns that you raised at that point, I think, are extremely legitimate ones.
I think that the attorney general has to take a leadership role in (at least ?) in the way that President Clinton did and Attorney General Reno did, (having ?) the Lawyers for One America project that I had a role in effectuating.
So I think that your concerns are very serious ones and ones that we'll try to work with you on.
SEN. CARDIN: We thank you for that. And it's been very refreshing to hear from the attorney general here today in such candid responses to our questions. And I think you have restored the confidence in the American people of the Department of Justice being there for all the citizens of our country.
And we look forward to continuing to work in a constructive way as we deal with some very difficult challenges, whether it's how we handle the detainees in Guantanamo Bay or in Afghanistan or how we deal with the surveillance programs of this country.
These are all issues in which we have to work together. We won't always agree, but I think it's important that we have these candid discussions.
And we thank you very much for your attendance here today.
With that, the chairman has indicated that the record will stay open for questions from the members of the Committee. With that, the Committee will stand adjourned. Thank you very much.
ATTY GEN. HOLDER: Thank you, Mr. Chairman.
SEN. CARDIN: (Strikes gavel.)