Witness: Attorney General Eric Holder
Chaired By: Rep. David Obey (D-Wi)
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REP. OBEY: The room will please come to order.
This afternoon we will hear from the attorney general testifying on behalf of his budget for the coming year. Before we begin, let me simply say that, as always, the committee welcomes everyone in attendance at this hearing.
We expect only one thing, and that's that people respect the prerogatives and needs of this committee. And so people are obviously in a free country. They are perfectly within their rights to make their views known. But they're not within their rights to disrupt any hearing of this committee. And so we will conduct this hearing accordingly.
Mr. Secretary, we welcome you to the committee. I frankly don't know where to begin. I don't know what people -- I don't know which Cabinet offices people regard as being the premier Cabinet offices in the country. I know that there are some who feel the secretary of State is the top dog, so to speak, and others may feel the secretary of Defense or some other.
To me, the most important job in the Cabinet is that of the attorney general, because he is the number one person in the Department of Justice for the United States of America. The Defense Department defends the country. The Education Department helps to educate our children, and that's all important. But the most important thing that any government official can do is to defend the Constitution and to defend the liberty of each and every citizen and to do their damndest to deliver justice to every citizen.
I know that today members will focus largely on the news reports about the interrogation reports that were released recently. But I hope you will forgive me if I, in my introductory remarks, tell you what I am focused on today. It's not that I don't think those issues are important. I think they're excruciatingly important. But I just want to tell you a little story about something that happened in my state so that you understand what my focus is.
There is a woman in the state of Wisconsin by the name of Georgia Thompson, who was a low-level, non-political civil servant at the Wisconsin Department of Administration who had never met our governor in her life. She was hired by the state civil service during a prior Republican administration. She was one of those whose job it was to determine who had the state contract for a state employee travel. And as I understand events, that body wound up accepting the bid of the party that turned out to be the low bidder.
But somehow the allegations began to arise that she had done something improper in allocating or in deciding who was going to get that contract. The state Republican Party put out press releases demanding that the U.S. attorney investigate the situation. The U.S. attorney had a public press conference announcing that he was going to undertake an investigation of that item. My understanding is that that was counter to Justice Department policy to have a press conference on something like that.
And to make a long story short, she was called before the grand jury. And eventually, despite the fact that she testified that she had had no political dealings whatsoever with Wisconsin's governor, she was convicted and sent to prison.
The case was then appealed, and when it went to the three-judge court of appeals, something extraordinary happened. Before the court was even finished with the hearing, they decided that the case was so flimsy that they threw it out and they ordered her released immediately from prison. And from the bench, one of the judges told the prosecutor that his case was worse than flimsy and questioned why on earth they would even bring that case.
She spent over $300,000 defending herself. She lost her home. She lost her reputation. And then the court restored her good name, but it was still soiled in her eyes by events.
It then came to light later that that federal attorney had initially been on the list, the infamous list of prosecutors who should be considered for firing because they weren't sufficiently aggressive to suit the higher-ups in the administration. And so I think it raises an interesting question as to whether or not that attorney felt pressured to go after a case that he certainly shouldn't have gone after.
What makes this even more insidious is that, immediately after she was convicted, the opponent of Wisconsin's governor in the next election spent almost $4 million on television ads attacking the governor as being corrupt, citing this case as illustration number one of why he was unfit for public office. It was a scurrilous smear.
And when your predecessor was before this subcommittee a year ago, I asked him whether or not Justice was looking into this. And I presume they are, and I hope they are. And obviously I'm not qualified in any way to determine what the outcome ought to be, but I think you have a special responsibility, given some of the things that have happened in the department, to dig into cases like this and to make crystal clear to the country that at the Justice Department, politics is out and justice is back.
And that to me is the most important thing that any government official, from the president on down, can do. Every American citizen has to know that whether you are a humble civil servant or if you are a very visible politician, you're going to get justice. And in that regard, I simply want to congratulate you for the action that you took in the case involving Senator Stevens.
Now, Ted and I agreed with each other about once a century. He fought everything that I believed in and I fought a lot of things that he believed in. And I have no idea what the facts are in this case. But it was appalling to see revealed the actions and missteps of those who were prosecuting that case.
And while I have no idea what the outcome would have been had there been a fair prosecution, I want to thank you for standing up for due process and for recognizing that the job of prosecutors in this country isn't to win a high conviction rate. It's to do justice, whether that means that you win the case or not. So I want to thank you for what you've done so far.
I apologize to the committee for taking this much time, but ain't nothing more important than justice. And I personally am glad to see a person of your integrity in that chair.
With that, let me turn to Mr. Wolf for any comments he might have before we take your testimony.
REP. FRANK WOLF (R-VA): I thank you, Mr. Chairman.
And Mr. Holder, we welcome you to the committee, and I thank you for your appearance today.
I understand -- I hope I do; I think I do -- the difficulty of the task you've been assigned to complete by the president, especially the assignment to deal with the closing of the Guantanamo Bay facility and the issues connected with recent memos on the interrogation of methods. These are very dangerous detainees at Guantanamo Bay, including Khalid Sheikh Mohammed, who masterminded the 9/11 attacks that took the lives of 3,000 people, 30 people from my congressional district, and brutally beheaded journalist Daniel Pearl.
I am extremely concerned that the hard lessons from the first World Trade Center bombing in 1993, the U.S. embassy bombings in Kenya and Tanzania, the USS Cole attack and the 9/11 atrocities could be ignored, which could put our country at risk of another attack, which I sent you a letter -- I don't know if you saw it the other day -- recommending you read the book called "The Seven Deadly Scenarios." Did you get the letter? Well, I sent it. If not, we can get you another copy -- that potentially other nuclear, chemical or biological weapons.
Shortly after I returned from a trip to Algeria in 1998 -- and Mr. Secretary, in Algeria, about 150,000 people have been killed from terrorist activities -- we then went to Egypt. And as I landed the plane, we then found that the bombings had taken place in the two embassies in both Tanzania and in Nairobi, where 267 people were killed, including one from my congressional district, a person who lived in McLean. And as you know, more than 5,000 were injured.
I then authored, and was ridiculed by, quite frankly, both sides of the aisle, the bill to set up the National Commission on Terror. In fact, as many members on both sides said, "What is this about terror?" when I put the bill and I mentioned Osama bin Laden.
We passed the bill, and the commission report that came out in the year 2000 provided evidence of a growing threat of international terrorism and the steps needed to combat it. I was disappointed that both the Clinton administration, where you served in the Justice Department, and the Bush administration, both administrations, the Clinton administration and the Bush administration, ignored, did not take seriously the recommendations that were in the Terrorist Commission report. What followed were the devastating attacks on September 11th of 2001.
Thirty, as I said, of my constituents died in the attack in the Pentagon on that day. I left the capital and went out to the Pentagon and sat up on the hill and watched the scene of what took place. The first person that was killed -- American employee, American citizen -- that was killed in Afghanistan was a CIA employee of mine that lived in Manassas Park.
Now, our country could be faced with the real prospects that those associated with the terrorist attacks on our country could very well be brought to a large urban center in eye's view of a where a commercial jet turned to missile exploded into the Pentagon on 9/11.
On March 13, I sent a letter to you asking a series of questions regarding the security and the logistical concerns associated with transferring Guantanamo Bay detainees to the jail and courthouse in Alexandria, Virginia. And I met with your team yesterday and they tell me you're still working on the letter and I appreciate that, but we look forward to receiving the response.
As you know, the Zacarias Moussaoui trial in Alexandria took over four years at a public expense in multimillion dollars, representing a nightmare scenario. An equally difficult situation would exist in the southern district of New York if trials were to occur there.
Today we're going to give you a second letter asking additional questions on the possible dangers the administration should consider if you decide to transfer Guantanamo detainees to population centers. And also, the ramifications of granting these individuals access to civilian courts.
I'm also submitting both letters for the committee record and would ask as you submit the response to me, you can also send answers to the committee.
As you move forward in responding to the president's executive order and present policy options for the release or transfer or the prosecution of detainees, I believe there are serious issues involving the safety and security of a lot of people in urban and metropolitan and other districts that really have to be addressed.
Before making your decisions, I would ask and respectfully urge -- and it's in the letter, but I wanted to say it -- that the Justice Department, and even you if possible, should meet those whose loved ones were killed in 9/11 attacks, both in New York and the other localities -- and here and Pennsylvania -- and I know you knew people that were on those planes too -- including the families of our military members killed in Iraq and Afghanistan -- and ask that their perspective on the fate of these detainees, especially the detainees who played a lead role in carrying out the attacks. I read the memorandum on Khalid Sheikh Mohammed and what he said brutally with regard to Daniel Pearl. You probably should meet with Daniel Pearl's family too.
It is troubling to me that an option of transferring detainees to federal court sites in urban areas such as Alexandria would even be considered. I went to Alexandria this past Tuesday. I parked the car. I walked out from the courthouse, across the street to the Westin and off to the hotel on the other side and the apartment. You know the location as well as I do. And since that time, having been down there during the Moussaoui trial, the Patent and Trademark Office is now there, the Westin Hotel is now there -- the apartments are now and there's also a ramp as you come down off of the Beltway.
So there are a number of issues like this that we would like to raise with you both at the hearing today, but equally important, in the letter that I'm sending. And before you make any of these decisions, I'd appreciate having the opportunity to talk to you about it.
And with that, Mr. Chairman, I yield back the balance.
REP. OBEY: Mr. Lewis.
All right. Mr. Attorney General, I forgot to mention one thing in my comments.
The head of the Wisconsin Employees Union, in commenting on the Thompson case, simply said the following: Prosecution of innocent civil servants to win election should not become the standard in this state or this country. If this conviction had been upheld, no state employee exercising discretion would have felt secure from federal criminal prosecution. This was an innocent woman put in prison for doing her job. She lost her income, her house, her reputation and four months of her life. I just want to put that in for sense of perspective.
And with that, please proceed with your testimony.
ATTY. GEN. HOLDER: Good afternoon Chairman Obey, Ranking Member Wolf, other members of the subcommittee. Thank you very much for the opportunity to come before you and testify today.
Before I get into my remarks concerning the fiscal year 2010 budget, let me just say that with regard to the matter that you have raised, Mr. Chairman, there is in fact a Justice Department investigation under way. It's being conducted by the Office of Professional Responsibility. It was begun by my predecessors.
I expect that that investigation should be completed relatively soon and it is my hope that we will be in a position to share the results of that investigation. That is actually one of the things I want to do with that office -- with the Office of Professional Responsibility -- to make more transparent the work that it does so that the people of the United States will see in the vast majority of cases how our lawyers conduct themselves, I think, in appropriate ways. But to the extent that we make mistakes, that we own up to them and make clear to the people that we have made those mistakes and then take actions that I think are appropriate, as I did in the Stevens case.
Getting back to that which has brought me here today: Due to the presidential transition, the fiscal year 2010 budget request is being released in two parts. In February, the administration announced the top-line request for each agency, including the Department of Justice. Once released, the full submission will provide detailed budget proposals and the traditional congressional justification materials necessary for your committee to do its very important work.
I appreciate the opportunity to appear before you today to highlight certain aspects of our current submission and further discuss key priorities for the Department of Justice.
The president promised that from the day he took office, America will have a Justice Department that is truly dedicated to justice. The fiscal year 2010 budget that will be transmitted soon supports this vital task by investing a total of $26.7 billion in our critical law enforcement mission -- including protecting Americans from terrorism, fighting financial and mortgage fraud, getting more police officers on the beat, reinvigorating civil rights enforcement and providing essential resources for our prisons.
As I testified during my confirmation hearing earlier this year, I will also pursue a very specific set of priorities. First, I will work to strengthen the activities of the federal government that protect the American people from terrorism. I will use every available tactic to defeat our adversaries and I will do so within the letter and the spirit of our Constitution.
Adherence to the rule of law strengthens security by depriving terrorist organizations of one of their prime recruiting tools. America must be a beacon to the world. We will lead by strength, we will lead by wisdom and we will lead by example.
Second, I will ensure that law enforcement decisions and personnel actions are untainted by partisanship. Third, I will revive the traditional missions of the Department of Justice. Without ever relaxing our guard in the fight against global terrorism, the department must also embrace its historic role in fighting crime, protecting civil rights, preserving the environment and ensuring fairness in the marketplace. The department's work does not end with these priorities.
On January the 22nd, President Obama issued three executive orders in a presidential memorandum that gave significant responsibility to the Department of Justice. These orders require the immediate -- require immediate interagency action regarding Guantanamo Bay detainees -- specifically to view the appropriate disposition of individuals currently detained there; to develop policies for handling individuals captured or apprehended in connection with armed conflicts and terrorist activities; and also to evaluate current interrogation practices and make recommendations as necessary.
Now, while implementing these orders, the department will take necessary precautions to ensure decisions regarding Guantanamo Bay detainees account for safety concerns of all Americans. Executing these orders will have a significant workload and cost impact on the department and this budget reflects that need.
Earlier this month, I -- along with other U.S. government officials -- attended the Mexico-United States Arms Trafficking Conference in Mexico. This was my first foreign trip as attorney general. My attendance at this conference reflects my commitment to continuing the fight against the drug cartels.
The United States shares a responsibility to find solutions to this problem and we will join with our very courageous Mexican counterparts in every step of that fight.
Twenty-seven -- $26.7 billion is a significant amount of money that comes with a commensurate amount of responsibility. We will use these funds wisely and transparently. Our internal efforts, which range from implementing the department's new united financial management system to establishing internal controls to ensure the proper expenditure of Recovery Act funds, will demonstrate our commitment to accountability at the highest level.
Chairman Obey, Congressman Wolf and members of the subcommittee, I want to thank you for the opportunity to discuss the department's priorities and for your support of our programs. I appreciate your recognition of the department's mission and the important work that we do.
I look forward to working in partnership with this subcommittee and with the Congress as a whole. I'm pleased to answer any questions that you might have.
REP. OBEY: Thank you.
One subject with a lot of questions associated with it: A week ago today, the department released the full text of four Bush-era OLC memoranda that provided the legal justifications for the use of interrogation techniques that many consider torture -- I certainly do.
The question arises whether or not the Department of Justice lawyers who wrote the memos could be subjected to some kind of sanction for their role in their interrogation program.
President Obama indicated that decisions about the fate of those lawyers would ultimately be made by you, as the chief law enforcement officer of the country.
I've got a series of questions for you. And I don't expect you to answer all of them today, but I would expect you to make a comment when I've finished with the questions, because I would like you to respond after you've had a chance to think through carefully what your plans are. But, these are roughly the questions that I'm sure everybody's asking:
What will your policy be with respect to sanctions or prosecution for those individuals who offered those memos? What is the status of the Office of Professional Responsibility review of the authors of those memos? When do you expect this review to be completed? And, will the results be made public?
While the president has repeatedly said that CIA employees who followed the legal advice provided by DOJ will not be prosecuted, will you proactively pursue investigations of individuals who acted prior to the issuance of DOJ's memos, or who deviated from the specific tactics and methods approved by DOJ?
And lastly, a DOJ-led task force has been formed to craft new comprehensive policy on interrogation methods and rendition. Can you tell us anything, at this stage, about the work of this task force; when its work might be concluded; and whether its findings will be shared with the Congress?
ATTY GEN. HOLDER: Okay, Mr. Chairman. I'm not sure where to start.
With regard to the task force -- or those task forces that the president placed me in charge of, we are charged with, in that first one, to make individualized determinations about how the current detainees held at Guantanamo are to be treated. We expect that some people will be released -- determinations made that they can be sent to other countries.
With regard to a second group, we expect that we will be trying them in Article III courts -- in federal courts, perhaps also in military courts, and perhaps also under military tribunals that have had -- that have significant changes made to the manner in which they would be conducted.
With regard to the second task force, we're also looking at interrogation policy and coming up with what we think are the best interrogation policies that we can come up with that are consistent with our values and yet will be effective in getting information from those who would do harm to this nation.
With regard to that first task force, our responsibility is to report by next January; with regard to the question of interrogation, we are to report by July. And with regard to a third task force, that has to do with detention policies -- and how people are to be detained who are presently in Guantanamo, or people who might be apprehended on the battlefields around this world, that task force is due to make a response in July of this year as well.
So, we have two that have a six-month reporting time, and one that has the full year to make its determinations.
REP. OBEY: What's the process by which you will go through that to make those determinations? And who would be consulted, and who would play a role in making those eventual decisions?
ATTY GEN. HOLDER: All three efforts are interagency efforts that involve the CIA, the Department of Defense, the Department of State, the Director of National Intelligence, the Justice Department, various members of the National Security Council. There are representatives from all of those organizations who are on a working group level. They report to a larger group, who ultimately report to a principals group. We have had two principals meetings thus far with regard to the work of the task forces.
And so it is truly, I think, something that is an interagency effort that will draw on the expertise of those various agencies so that we can make the decisions that we think are in the best interests of this country and consistent, as I said, with the values that have always made this nation great.
REP. OBEY: Mr. Wolf.
REP. WOLF: Thank you, Mr. Chairman.
Mr. Obey raised a couple of the issues, but I will come about them perhaps in a little different way.
President Obama has stated that he will defer to you, as the chairman said, in determining whether or not to prosecute federal officials. I think this represents -- most Americans believe it represents a dramatic shift from the president and his chief of staff's earlier statements, that I worry will have been a chilling effect on current and future administration officials and our federal workforce.
I, personally, agree with the statement of Senators McCain, and Lieberman and Graham that, quote -- and they said, "Pursuing such prosecutions would have serious and negative effects on the candor with which officials in any administration provide their best advice, and would take our country in a backward-looking direction at a time when our detainee-related challenges demand that we look forward."
In so far that the questions were several, and, one, will you pursue the prosecutions? And, can you tell us what the criteria will be? And if you have anything you can tell us now, or we can wait for what you tell the chairman.
Secondly, is it true that there were additional memos and documents that have not been released that show that the interrogations resulted in valuable intelligence, perhaps saving lives? I think there are other ones, and the first one were released; the second one should be released.
And, with regard to that, can you just comment?
ATTY GEN. HOLDER: First, I will reiterate what I said -- I guess, last week, and it's consistent with what the president has said as well: Those intelligence community officials who acted reasonably, and in good faith, and in reliance on Department of Justice opinions, are not going to be prosecuted. It would not be fair, in my view, to bring such prosecutions.
But, I also want to be clear that I will not permit the criminalization of policy differences. However, it is my responsibility, as the attorney general, to enforce the law. It is my duty to enforce the law. If I see evidence of wrongdoing, I will pursue it to the full extent of the law, and I will do that in an appropriate way. And I think I have shown throughout my career, I'm prepared to make tough decisions that are, in fact, fair decisions.
But, I want to end -- at least this response, with where I started. With regard to those members of the intelligence community who acted in good faith, and on reliance (of) Justice Department opinions that we shared with them, it is not our intention to prosecute those individuals.
REP. WOLF: And the second part -- of the other memos that have not been released?
ATTY GEN. HOLDER: There are other Office of Legal Counsel memoranda and opinions that have not been released. It has been my hope that, as this process goes on, we can make those opinions, those memoranda available; make OLC a much more transparent place, consistent with our need to protect national security and to protect the ability of the president to have unfettered, unchilled communication with members of that office.
REP. WOLF: But, with regard to any results of the interrogations, that's the question that I was asking.
ATTY GEN. HOLDER: I am not familiar, myself, with those memos. I've heard that Vice President Cheney indicated that such memos exist. I, frankly, have not seen them. I do not know if they exist.
But, I will say that, generally, my hope is that we will make available to the American people the opinions of OLC so that they will have a full understanding of what it is the Justice Department thought about the questions that were put -- were put to it.
REP. WOLF: Okay, so if there are, that information will be released?
ATTY GEN. HOLDER: Again, as I said, I would hope that we would be able to be in a position to release all of the material that I've described -- these OLC memoranda. Again, --
REP. WOLF: I'm not -- pardon me, I'm not aware if that's OLC. I don't know that. So, I'm just saying, do the other memos -- I think once a decision was made to release the existing memos -- and I saw today that Secretary Gates favored it, and I have great admiration for Secretary Gates. He was on the Iraq Study Group that we helped put together, and I admire him.
But, I think once you have taken that step, I think all of the memos -- and, of course, those of us who are not on the Intelligence committee -- I just read today, Pete Hoekstra had an article in the Wall Street Journal, there are things like that that go on in the Intelligence committee that many members do not know about. So, there may be memos -- I wouldn't want to get into a situation now, I'm asking you and you say, well, Wolf, you just -- (inaudible) -- and it was really there, but you didn't ask me there.
I just think, in fairness to the American people, once you made a decision -- once the administration made a decision to release the existing memos that you put out, then I think you have an obligation to release the rest of the memos. That's the point I'm trying to make.
The question I wanted to ask --
ATTY GEN. HOLDER: Well, Congressman, with regard to that, I'm the attorney general and I don't control many of the memos that you might be talking -- but, I don't know. I was referring to those memos that were -- that originated in the Justice Department.
Now, to the extent that they do -- again, as I said before, my hope would be to make those available, again, consistent with our national security interests.
REP. WOLF: Well, the time's up, and I won't abuse my time.
But, I think, in fairness, everyone has to know. And just to say, 'if it isn't in this building, it may be in another building, so therefore that building.' I think this is a decision, quite frankly, that not only you are responsible for, but whatever decision is made is really the decision of the president of the United States.
Harry Truman had a sign on his desk. It said "The buck stops here." So, the president is over all of the agencies. So, whatever you do, it (can't be, just say ?) -- (inaudible) -- it's not in this building, it may at another building, and I don't control that building.
Thank you, Mr. Chairman.
ATTY GEN. HOLDER: Let me just say this.
It is certainly the intention of this administration not to play hide and seek or not to release certain things in a way that is not consistent with other things. It is not our intention to try to advance a political agenda or to hide things from the American people. There has been much said I guess in the last couple of days about the effectiveness of these enhanced interrogation techniques. I've also seen articles written by people who were involved in the use of these techniques who say those techniques in fact were not particularly effective, that the information could've been gotten by more traditional means. So that is something I guess we will have to debate.
One of the things that I think this administration wants to do though is to put in front of the American people as much of this information as we can so that a good healthy debate can ensue and we can come up with interrogation policies among other things that are consistent with our values and that can be supported by the American people.
REP. OBEY: Mr. Fattah?
REP. CHAKA FATTAH (D-PA): Thank you and let me welcome the Attorney General. I want to go for a minute to the substance of what brings you here, which is your appropriations process for this year.
So the top line is 26.7 billion (dollars) and that would include 7.9 billion (dollars) for the FBI and then there's 50,000 additional cops on the street and 145 million (dollars) for civil rights, there's border enforcement and immigration enforcement. And I want to -- and then we come down to federal prisons. There seems to be 7-and-a-half billion (dollars) for federal prisons and only 75 million (dollars) for re-entry. I'm interested in you know whether or not you think we might ought to be investing a little bit more in re-entry programs given $7-and-a-half billion (dollars) spent on incarceration and we know about some of the challenges on re-entry.
But before I go to that, I noticed that you're going to invest more effort in going after mortgage fraud. I sent a letter to the Department under its previous leadership in August of last year challenging why more resources were not made available to go after mortgage fraud since it was apparent that the FBI knew of -- well was informed about some significant widespread mortgage fraud. This is not under your watch -- I'm not asking you to take responsibility. I am pleased that in the budget request before the committee that you are going to invest considerable resources and I note your public statements on the matter.
So welcome. I am interested in those two issues and I appreciate an opportunity to hear your comments.
ATTY. GEN. HOLDER: We are committed to handling, dealing with the problem of mortgage fraud. The FBI has dedicated fairly significant resources in that regard, has opened a mortgage fraud task force that is headquartered in Washington. I believe that there are about 2,100 cases that are presently being examined. We've asked for additional funds to look at that very important criminal justice topic.
But not only to look at it in the way that I think we should, from a criminal perspective, but also to look at it from a civil rights perspective and to the extent that this fraud was perpetrated in particular communities, having the effect of destabilizing those communities. And I'm talking about communities that contain people who are poor or people of color. That is also something that is of great concern to us.
So our look at the mortgage problem is really two fold. One to detect fraud to the extent that that's possible, and then to look at the discriminatory impact of that fraudulent activity.
We are going to be talking I think very soon about a financial fraud task force that will look at a variety of things, given the situation in which our nation finds itself and some of the fraudulent activity that I think we have been talking about. I think there needs to be a more comprehensive view of this. We need to look at this with our state and local partners. And a key component of that effort will involve the mortgage industry.
REP. FATTAH: Well as a member of the subcommittee, I -- you know, obviously whatever additional resources that need to be put into place. I mean, there are problems with this warranty scam that's going on, you have, you know, the mortgage fraud issues. There are a lot of problems in this whole financial fraud area that have not gotten a great deal of attention, or at least not the appropriate level of attention from the Justice Department, FBI in particular. But the -- and I'm happy to see that you're going to go at that.
I'd like you to comment on the commitment that the Department is going to pursue given your budget request on re-entry. I know that Ranking Member Wolf and others have had similar concerns that we do as much as we possibly can inasmuch as we incarcerate a great many people, almost all of whom are going to be returned to these communities at some point, to make sure that we don't create more problems than we are solving.
ATTY. GEN. HOLDER: We are fully in support of the Second Chance Act to try to give people who are coming out of prisons an opportunity to become productive citizens once again. And we're also going to be dedicating attention to our Office of Justice programs to look at ways in which we can deal with that whole re-entry problem.
But I think we have to look at this whole crime problem in a holistic way, and that is to look and see if there are ways in which we can prevent people from becoming involved in the criminal justice system. It is not a coincidence that we see the greatest amount of violent crime, where we see schools that don't educate where we see the highest levels of unemployment and where we see men who are not meaningfully engaged in the raising of their children. We have to deal with those social conditions. Those are crime issues in addition to social issues.
We also have to make sure that for those people who are incarcerated, that they are simply not warehoused, that somehow, some way we come up with an ability to make them better than when they came in through educational opportunities, vocational opportunities, and then at the other end of the spectrum, as you were indicating, to come up with ways in which we make the re-entry of those people from prisons into regular society more successful than it has been in the past.
I mean, substantial numbers of people are recidivists -- you know, I think two thirds or so I think might be the number that you see within three to five years. And I think that's an indication that the system that we now have in place is failing in many ways. And I think it is time for us to ask really tough questions of ourselves when we look at this criminal justice system that we have and maybe really challenge some of the assumptions that we have made.
It doesn't mean we're not going to be tough against people who would do harm to citizens who only want the things that we all do, but I think we have to be smart as well. And so I hope that as Attorney General I will lead a Justice Department working with members of this committee that will ask those tough questions and maybe come up with some different solutions.
REP. OBEY: Mr. Lewis.
REP. JERRY LEWIS (D-CA): Thank you Mr. Chairman. Attorney General Holder welcome.
ATTY. GEN. HOLDER: Thank you.
REP. LEWIS: I've reviewed pretty carefully your background and experience that you've had in the Department. I'm very comfortable with the direction and then the leadership that I believe you'll provide for us. Two subject areas of interest. You may not be aware that a program called Drug Court one of the first drug courts in the country was developed in San Bernardino County and sponsored by then Judge Pat Morris who's now the mayor of San Bernardino. I think he probably felt much more comfortable in that other frying pan than the one he's in right now.
But in the meantime, his work is being carried forward by Judge Stephen Manley and they're going a fabulous job in our state. But we have sizable, or the country has -- we especially have sizable numbers of men and women, especially young people who need a way to find a different path for their life and drug court is having a tremendous impact.
I've some indication of support from the administration for the drug court model and I am presuming we might enjoy some increased funding there. Could you comment on that?
ATTY. GEN. HOLDER: Yes, there is contained in the budget a very substantial increase to support the drug court effort. Congressman, I think you are 100 percent right that that is one of those novel approaches that I think we need to start thinking about. We had a drug court here in Washington, D.C., when I was the United States Attorney patterned after the one that you have described. We tried a three track system here, found that one of the tracks actually worked better than the other two, and that was the one that held the possibility of incarceration over somebody's head if they did not stay off drugs.
But the recidivism rate of people who go through drug courts is substantially lower than it is for people who simply are incarcerated and I think that our administration realizes that, has given substantial resources for the expansion of that program so I totally agree with you.
REP. LEWIS: But I appreciate that very much.
The other area of questioning, I may not get exactly the same kind of response but I have an interest and my state has a great interest in the State Criminal Alien Assistance Program, SCAAP. And in the '09 package there was a reduction of about $10 million in that programming. I don't have any idea what your thoughts are or the plans that you may have for the fiscal year ahead of us. I'd like to hear from you if you intend to see SCAAP funding either reduced significantly or terminated and if so why.
ATTY. GEN. HOLDER: Yeah, I think that on this one we may have a slightly different view of opinion. The program is one that I don't think that we are intending to support to the extent I think that you would, and you were talking about the State Criminal Alien Assistance Program?
REP. LEWIS: Right. Yes.
ATTY. GEN. HOLDER: Well I don't think that we are looking at that as the degree of support that you might want.
One of our top priorities is to secure our borders and address threats that are posed by criminal aliens. It is our thought that I think that money that we have coming from our JAG grants or our Byrne grants can actually be maybe more effective in dealing with the issues that the SCRAP (ph) program was intended to do and the budget that we are proposing eliminates funding for a program that we think does not help communities directly address crime in the way that the JAG/Byrne grants do.
So I think our aim is the same. I think we have perhaps a different view as to what can be most effective, but I'm always open to hearing a different view, and to the extent that you think that our view of this program is not necessarily a correct one, I'd be more than glad to speak with you about that.
REP. LEWIS: But General Holder, I very much appreciate that. The border states that have lots of impact from people who are here illegally, may have been involved in violations of the law, puts pressure on our budgets and I must share with you that I really ask that question because of the priority given by our governor in California. It's not the highest priority that I have in these things and there could be better approaches to deal with this circumstance, but in the meantime, I may very well get communication from the governor's office and share that with your people.
ATTY. GEN. HOLDER: I'd be glad to talk to you about that, Congressman.
REP. OBEY: Mr. Schiff?
REP. ADAM SCHIFF (D-CA): Thank you, Mr. Chairman. Mr. Attorney General, it's a great privilege to have you here. I spent six years in the Department. I have a great fondness for it and it broke my heart to see what the Department went through under the leadership of Mr. Gonzales.
I think your immediate predecessor, Mr. Mukasey, did an admirable job turning around the management and morale of the Department, but nonetheless, there is quite a mess left to be cleaned up and it's your unhappy test to do it, but I can't imagine anyone more capable and it gives me great confidence to have some of your intellect at the job.
I want to raise two issues with you, the first that my colleagues have already touched on and that is the torture issue. If we start out with your testimony in the Senate and I start off from the same place that waterboarding is torture. We know that waterboarding occurred, we, therefore know that torture occurred. I don't think we can have a policy in this country that notwithstanding the knowledge that people have been tortured that it's impossible to hold anyone accountable. You can't hold accountable people who follow legal opinions. You can't hold accountable people who wrote the legal opinions.
So we have people tortured, but no one is responsible. I don't think that's good policy. I don't think that lives up to our ideals and values as a nation.
What I would hope we would do is do a thorough investigation of exactly what happened, what laws were violated. Before we make any decision about prosecuting or not prosecuting, determine what the culpability is and what the legal avenues are, and then you have the tough decision to make, do we decide not to prosecute because of the mitigating factors, people operate in good faith on a legal opinion or maybe they don't have the mens rea.
But particularly in the case of the attorneys who wrote these memos, the fact they have a law degree shouldn't immunize them, and if there is evidence that these attorneys knew what they were writing were flawed opinions, that they merely sought to give a legal patina to conduct, which they knew to be violative of the criminal laws, they should not be held immune from prosecution.
I think part of the problem and this gets me to my first question, part of the problem is that the last administration had an attitude that if the commander-in-chief felt something was necessary in the war on terror, his authorities as commander-in-chief overrode everything else and this idea is embodied, I think, most graphically in the March 2003 OLC opinion when the author wrote, "Even if an interrogation method arguably were to violate a criminal statute, the Justice Department could not bring a prosecution because the statute would be unconstitutional as applied in this context."
So we can violate criminal laws the former administration seemed to say as long as it's pursuant to our authority as commander-in- chief. And I would ask you today if you are able to disavow that view because that view, not only affected the interrogation issue, it also affected the surveillance issue. We heard the same argument on surveillance. If the president says we need to surveil people, notwithstanding what FISA says, he has the authority as commander-in- chief and if there's a conflict between what he says and the laws passed by Congress, the laws must be unconstitutional.
Can you tell us today that you disavow that point of view?
ATTY. GEN. HOLDER: The administration's view that's consistent with Justice Jackson's opinion, concurring opinion in the Youngstown Steel case is that the president's power is at its greatest when he's acting in a manner that's consistent with congressional authorizations.
To the extent that there is an existing law, FISA, as you indicated, it is incumbent in our view for the president to conform his conduct to that statute unless the statute is unconstitutional. There is no basis from my perspective and from President Obama's perspective to view the FISA statute as one that was unconstitutional. And so programs that were designed to deal with the issues that FISA specifically was passed by Congress to deal with, efforts by the administration, by that administration, by this administration, should conform themselves to the law that is passed by Congress.
REP. SCHIFF: Would you agree that that is also more true than ever in the context of interrogation in that if Congress prohibits conduct, which it defines as torture, the president is not entitled to disregard that law because the president believes as commander-in- chief he must engage in torture, and therefore, Congress cannot prohibit it.
ATTY. GEN. HOLDER: It is our view that the expansive view that the prior administration took of the commander-in-chief authority is one that we will not embrace when it comes to the question of interrogation techniques, that is one of the reasons why the president has put me in charge of this interrogation policy group. We will share those results with the members of Congress with the hope that we can come up with techniques that are both effective, consistent with our values and supported by Congress because when that happens, the president, the administration is acting with its greatest authority.
REP. ZACH WAMP (R-TN): Thank you, Mr. Chairman. Mr. Attorney General, thank you for appearing before us today. I want a quick clarification if I could and understood you testified earlier in response to Mr. Wolf's question that essentially the Department will prosecute DOJ employees if you determine they did not act reasonably or in accordance with DOJ policy and that you would prosecute intelligence officers who did not act in good faith or reliance on DJO memos.
ATTY. GEN. HOLDER: You know, I didn't say that. I put it actually in the affirmative that those people who acted in a manner that was consistent with Department of Justice guidance, who relied on that guidance --
REP. WAMP: Right --
ATTY. GEN. HOLDER: And who acted in good faith, those would be people who we would not prosecute.
REP. WAMP: Right. But they did not act in good faith, and the flip side of that is you're open to investigation and prosecution.
ATTY. GEN. HOLDER: Well, there's always prosecutorial discretion and one has to --
REP. WAMP: Right.
ATTY. GEN. HOLDER: And one has to look at the particular facts of a particular --
REP. WAMP: Sure. I want to understand because what is reasonable and what is good faith are subjective terms and you'll make that determination as to what's reasonable and what's good faith.
ATTY. GEN. HOLDER: I will try to apply the law and the facts as best I can working with the career prosecutors --
REP. WAMP: Yes, sir.
ATTY. GEN. HOLDER: In the Justice Department and making those kinds of determinations.
REP. WAMP: Okay. I just wanted to make sure I understood that. You left that door open.
I also want to ask, Mr. Holder, if I could. You work I know very closely with the Department of Homeland Security. It's essential that the Department of Justice work very closely with the Department of Homeland Security. I serve on the Homeland Security Subcommittee and DOJ works arm-in-arm, your law enforcement officers with the Homeland Security officials in attempting to identify potential threats to the people of the United States and to our government and I wanted to ask if I could to the extent that you agree or disagree with the intelligence assessment that the Department of Homeland Security has just put out to attempt to identify and to quote -- as all intelligence assessments, "this is designed to help federal, state and local law enforcement officials identify potential terrorist threats and effectively deter, prevent, preempt or respond to terrorist attacks." And in this Department of Homeland Security intelligence assessment on right-wing extremists, the memo identifies right-wing extremists as groups or individuals, adherence rather, that are mainly anti-government who reject federal authority in favor of state or local authority.
Do you agree or disagree that an individual who rejects federal authority in favor of state or local authority is a right-wing extremist and subject to heightened scrutiny and suspicion?
ATTY. GEN. HOLDER: Well, there's a full range, a spectrum of people who, I think, could fit the category that you have described. There are people who certainly disagree with tax policies, who think that certain parts of our tax system should be made more fair, that more responsibility should be given to the states and on the extreme end, there are people who don't recognize our federal system and who think that the federal government is illegitimate.
REP. WAMP: You're familiar with the memo that I'm referring to. This Department of Homeland Security intelligence assessment, Mr. Attorney General, goes on to even classify returning veterans as potential problems that need to watched closely. People who purchase high volumes of weapons and ammunition are a source of concern to Homeland Security.
Veterans -- and there's even a memo I think that goes on to say those people who oppose the administration are a source of concern.
Do you agree or disagree with this memorandum? And if you disagree with it, to what extent do you disagree with it? Do you think the memo is too broad, goes too far? And in particular, what is your reaction to the classification of returning veterans as a potential threat to the security of the United States? I find that just appalling and absolutely unacceptable.
ATTY GEN. HOLDER: Well, in coming up with enforcement policies, it seems to me we have to make individualized determinations to the extent that we can. And when you start to cast too broad a net, you end up with, I think, pretty ineffective law enforcement. In some ways it's the same thing as you see with profiling. You want to really focus on people who are truly threats.
And to the extent that that memo is read as characterizing returning veterans, people who have put their lives on the line to protect our nation, clearly that's wrong. I don't think that was the intention of the memo. And if the language used there was not as exact as it should have been, I'm sure that Secretary Napolitano would walk back from it.
REP. WAMP: One last question on this line, because our time is brief and I have a second round. But has your department or are you aware of any lists that are being developed by DOJ to identify what this memo calls right-wing extremists who reject or who favor state and local authority, returning veterans, people who disagree with the administration? Is there a list being developed of people like that in your department?
ATTY GEN. HOLDER: No, not that I'm aware of.
REP. WAMP: Thank you.
ATTY GEN. HOLDER: And as long as I'm attorney general, that would not be the policy of the Department of Justice.
REP. WAMP: Thank you.
REP. OBEY: Mr. Serrano.
REP. JOSE SERRANO (D-NY): Thank you.
And thank you, Mr. Attorney General, for your past service and what I know will be excellent service in the future.
So much has been discussed already and should be discussed in the future about the area of torture. I want to take you to another subject, but prefacing my comments by saying that I join my colleagues in saying that something has to be done about what happened in the past. I know the president has said, "Let's put the past behind us." And I think, in some ways, there are many issues that have to be left behind. This cannot be one of them. And I take a different view from some people on this.
Notwithstanding some of our enemies who will always try to hurt us, there are others who would use this behavior of ours, if it goes unpunished or uninvestigated or undealt with, as you know, as a recruiting tool to bring more people to hate us.
Secondly -- and this is not a frivolous or a funny remark -- but if we don't do something, there are some folks who will never be able to travel out of this country, because in other countries there are people ready to arrest them and prosecute them. And we've never had that kind of behavior put on us. And so we have to pay attention to that seriously. And I want to just identify myself with the comments made before and put that before you.
My area -- another area of concern that I have is, during the last administration, civil rights groups and local groups complained about the fact that the decline that existed in numbers of hate crimes reported or dealt with by the civil rights department was just a bad situation.
I see in the president's comments and I see in your comments a desire to do something about the border and about illegal immigration, and so be it. But there's another side to the immigration issue, and that's immigrants who are being targeted for hate crimes in this country. It even happened -- and I say even -- in a city like New York, which is known to traditionally be a pro-immigrant, very tolerant city, and yet we saw people killed and abused and hurt physically.
Will the department, in its desire to deal with the border and the immigration issue, also deal with the issue of hate crimes and identifying this new community, if you will, that's included in the hate crime category?
ATTY GEN. HOLDER: Yes. In fact, one of the things that we want to do is expand the definition, federal definition, of hate crimes. We unsuccessfully tried to do that during the Clinton administration. We are going to try to do that again during the Obama administration.
The focus should not be on the status of the victim but on the conduct of the perpetrator. And that is what I think good law enforcement is all about. If a person is here inappropriately and is nevertheless the victim of a crime, that crime is just as serious as a crime committed upon somebody who is a citizen of this country and is worthy of the attention of those of us in law enforcement.
To the extent people are being singled out because of their ethnicity, their status, that is something that deserves special attention and will get it from any Justice Department that I lead.
REP. SERRANO: And I thank you for that comment.
I would also hope that we deal with probably the most difficult issue to deal with here. President Calderon has made it clear to us that he understands there's a serious problem in his country, and therefore a serious problem that spills over on the border. But he's also told us that most of the weapons used in Mexico in those crimes come from this country.
I am politically savvy enough to know that that is one of the most difficult issues in this country. There's got to be a way that, through our leadership, we show that there is a big difference between having a right to own a weapon, constitutional right, and allowing people to just sell indiscriminately these weapons that then come to haunt us, because, as we all know, that violence is beginning to spill over into the borders and it's reaching other areas where they're recruiting folks that join those gangs.
So what hope can we have that within what you're allowed to do, within what the department and the administration is allowed to do, knowing the difficult waters that you travel, that we can see something said and done about these weapons that end up going somewhere else?
ATTY GEN. HOLDER: Well, with regard to the problem in Mexico, what we have tried to do with ATF, which is now part of the Justice Department -- wasn't when I left it -- we've moved 100 ATF agents to the border area to try to stop that flow of these high-powered weapons into Mexico.
I had a chance to speak to President Calderon and Attorney General Medina-Mora during my visit there; also indicated to them that we needed to get more information about the weapons, the bases, so we have an ability to look at things as simple as serial numbers so that we can trace those back to places where they might be bought in the United States and identify those dealers of these guns who are problematic.
A lot of these purchases, from what we know, are made by straw purchases, people who come in and identify -- who have an ability to buy a weapon but then transfer it to somebody who then takes it south of the border.
I've also talked to Secretary Napolitano, who is coming up, I think, with pretty innovative ways in which car searches can be done of cars that are going into the border. We've asked our Mexican counterparts to help us in that regard, to inspect vehicles coming into Mexico to a greater degree than they now presently do, because we think that's probably the main mechanism by which these weapons are smuggled into Mexico.
REP. SERRANO: Thank you.
REP. OBEY: (Off mike.)
REP. C.A. "DUTCH" RUPPERSBERGER: Did you call me, Mr. Chairman? Okay.
Thank you for being here.
The area that I want to get into again is torture, but I want to talk about going forward and guidelines. I happen to represent NSA in my district, and I am on the Intelligence Committee with Mr. Schiff. And when we were debating the FISA issue, I felt and a lot of us felt very strongly, and we were glad that we were able to prevail, that we needed the court involved, the checks and balances. And our forefathers created a great system of government that has worked for us for a long time, and that's the checks and balances between administration, judiciary and Congress.
The issue, though, about going forward and with torture, though, as it relates to the CIA, NSA, military, whatever, is the front line. These are really courageous men and women that are all over the world. They're all over these different countries. And their job, especially in the CIA, as an example, is to collect and to get information. And that information is analyzed and then goes to the president or whatever decision-makers are there.
They are subjected, though, to the orders and the rules and regulations and standards from the top. It all starts at the top. And I would hope, when you're evaluating the issue that we're talking about with torture now, that whatever you come up with and that you do come up with, with strict guidelines, so that the men and women in the front line know exactly what the rules and regulations are, and they would not receive orders to do something that they don't know.
Now, you know, you said that you're only going to move forward with consent if they are doing their job consistent with Department of Justice guidelines and upholding fundamental American principles, that you're not going to move forward. And that's your call, you know, as the attorney general.
But I think we have to really very focus on strict guidelines now which would go into training. When our CIA people go out into the world to protect us, they're trained. And they receive orders and they follow those orders. Now, of course, a lot of these people who are the people that work for us -- thank God for us is they're some of the best in what they do in the world and they're very intelligent, and they should know right and wrong.
But when it comes to the gray areas, that's where there's a problem. So I would hope that we could work with you, those of us who are on the Intelligence Committee, these different committees -- Judiciary, whatever -- to make sure that those are guidelines -- there will never be another Abu Ghraib or we'd have to deal with it with the issue that we're dealing with now.
The other thing is that we always have a change in administrations, and the new president will bring in their people. And we have different policies, different ways that a president will look in governing. And the president has the opportunity, subject to the Senate a lot, to have their own people.
But in this situation, I would hope that you would look in your investigation, which I would hope that you could use so that we can set these guidelines in the future, the role of political appointees. We have, as you know, in the Justice Department -- I think you've been there for a lot -- we have career prosecutors or career people that work in Justice. But then you have the political appointees that every president does bring in.
And I would hope that you could look and see how far, where it goes. Were these political appointees involved? Were they involved in giving orders to make something happen?
And then that, all of a sudden, because there's where the mandate or that's the ruling, then that means it's open season?
Because if you look at torture, torture really doesn't get us any more information. Oh, there could be a case or two. Most of the time, from what we understand, is when someone is tortured, they'll tell you whatever they want; or in al Qaeda's situation, you know, they'll be trained to deal with that. And Abu Ghraib set us back in terrorism for a long time.
So my point and I'd like you to respond -- I know I'm talking a big, long question -- how do you see your investigation, with respect to where we are now? And the end game, I would hope, would be strict guidelines that everyone can understand and that we make sure that if there's a violation of those guidelines, then there should be retribution.
ATTY. GEN. HOLDER: Congressman, I think you raise, actually, a very good point. And what I hope will be the outcome of the effort that we have both with regard to those two groups -- those two task forces -- the detention task force as well as the interrogation task force.
The interrogation task force is looking at the Army Field Manual and trying to make determinations: Is that sufficient for us to have the ability that we need to get information -- good useful information from our adversaries -- or are there things beyond that that we need to do?
Our hope would be that we will come up with some conclusions that we will share with the Congress and with the American people and undoubtedly respond in a hearing setting to what it is we have found with the hope that we can come up with good interrogation techniques that can be supported by the nation, that are effective and that ultimately are the bright line that you talk about so that everybody will know: these are the techniques that are acceptable. If you go beyond that, you do so at your peril.
We owe that, it seems to me, to the people in the field who do these very dangerous things. Often times -- and the point you make is a very good one -- too often without sufficient guidance from those of us who are at the heads of these organizations. That is one of the things that we are bound and determined to try to end with the formation of these two task forces and the sharing of the information -- the findings -- of those task forces.
REP. : Thank you.
REP. OBEY: (Off mike.)
REP. : Thank you, Mr. Chairman.
Quite a few items have been already discussed and I'd like to sort of focus in on -- and I appreciate your comments on the drug courts and the items around legal orientation programs and hopefully that will continue to grow.
And the area of training for immigration judges that your office will look at; engaging NGOs as part of the training programs for a more precise training program.
The question I had is something that's been bothering me for eight or nine years is the folks who are caught in the immigration system where the INS officer who was involved in graft and corruption -- giving out green cards to contractors who were in cahoots with them -- they being dealt with through the legal system and being tried and sentenced.
But when the cardholders who were supposedly the customers of the contractors -- in this case I'm thinking about 250 individuals and families -- when they came back for renewals, they ended up being put into a deportation process under this last administration. And through no fault of their own they became victims again.
And is there any work or any effort being placed in reviewing some of these cases where there may be some remediations -- administrative decisions to either return them back to their original status or review them quickly and making sure that the nine years that they spent waiting for this process to go through would be terminated or at least come to some finalization? These folks have just been suffering for eight or nine years putting their lives on hold and it just seems to be patently unfair and we have not been able to get a response from the last administration.
We're going to be sending a letter to you requesting that consideration. Is that something that your office is looking at or would be willing to spend some time so that we can bring some justice to some of these folks?
ATTY. GEN. HOLDER: Congressman, that is not something that I am familiar with. But I would be more than glad to look at the letter that you have -- that you say you're going to send -- and examine the situation. And to the extent that people were acting in good faith and were taken advantage of -- I would certainly want to look at all the facts before --
REP. : I would expect that, yeah.
ATTY. GEN. HOLDER: -- I made a decision. But I'd be more than glad to look at that and I promise that we will respond to you with what we think we can do in that situation.
REP. : That would be greatly appreciated.
REP. OBEY: Mr. Wolf.
REP. WOLF: Thank you, Mr. Chairman.
If you could give me an update -- not to use my time on prison rate. Bobby Scott authored the bill on prison rate, but I sense a delay in the Justice Department. If somebody could come up and tell us what the status of that is.
Secondly, there was a little bit of inconsistency in your statement when you talked about -- I've worked in prison reform, and I agree with you about keeping young kids out of prison. But this administration opposing the D.C. vouchers is an inconsistency.
Quite frankly, my daughter worked in the Community of Hope at 14th and Belmont for five years. I have talked to some of these young people who are going to these schools. You're splitting families up. You're dividing families. A sister may be in the school and a young brother may not be able to go to school. So the inconsistency -- if you really care about these young people, then you will do what The Washington Post editorial has recommended.
For this administration to look at this and for you -- particularly you -- you live in the District of Columbia. You're a man of wealth. You can send your children to a great school and that's fine. That's wonderful. My five kids went to public schools, but I think wherever any parent wants their kids to go -- but do not negate the opportunity for these young kids that live in the inner city. I've spoken to many of them that tell me they've been beaten up in school. I had a daughter that taught at Eckington Gage and some of the life stories there.
So you really want to make a different to do what you said to keep young people out of prisons, then you have this administration support the voucher programs where young kids in the inner city can go to private schools. Having said that, amen.
Let me ask you the question here: Will you meet with the families of the loved ones who were involved in the 9/11 -- as I put in my statement?
ATTY. GEN. HOLDER: I'm sorry. I didn't hear that very last --
REP. WOLF: Will you meet with the families of those who lost individuals, loved ones, in the 9/11 attacks -- and also those of families who have lost loved ones in Iraq and Afghanistan -- including someone like Daniel Pearl's family?
ATTY. GEN. HOLDER: Sure. In fact --
REP. WOLF: Before you make any decisions?
ATTY. GEN. HOLDER: Sure. And Daniel --
REP. WOLF: That's enough. I just wanted to --
ATTY. GEN. HOLDER: I was just going to say that Daniel Pearl's widow was represented by my law firm and I met her while I was in private practice.
REP. WOLF: But I think all the others -- the ones from my congressional district. All the others -- Ms. Birlingham (sp). All of them, I think.
ATTY. GEN. HOLDER: Sure.
REP. WOLF: Well, I appreciate that.
ATTY. GEN. HOLDER: Well, that's fair. That's fine. That's very fine.
REP. WOLF: For those who may be transferred for U.S. prosecution, where do you think such trials will be held and how long do envision the trials to go on?
Moussaoui was in Alexandria for four to four-and-a-half years. Khalid Sheikh Mohammed, who has said what he's done. Lawyers who know tell me he could be there for four to five, to even longer perhaps.
How long do you think these trials would go and where are you now looking to hold the trials?
ATTY. GEN. HOLDER: We've not made any decisions yet about where the trials would be held. That is part of the process that we are going through to first identify how large that universe of people will be who we have to try and then make determinations about whether they'll be tried in Article III courts, military courts or in some other proceeding. But no decisions have been made yet as to where those proceedings would occur.
REP. WOLF: The system of military tribunals was designed to avoid the difficulties inherent in civilian trials.
If the military is trusted to run a system of justice good enough for a 19-year-old serviceperson who may have crossed the line, why should somebody like Khalid Sheikh Mohammed get a better opportunity than say a 19-year-old military person who's crossed the line and faces the military system?
ATTY. GEN. HOLDER: I have great faith in our system of justice and it's ability to hold accountable those who have committed the most heinous acts. And my faith in that system means that it is capable of handling, in a fair way, the 19-year-old who you described or somebody as awful as Khalid Sheikh Mohammed.
The system and how we deal with those people -- let's say those people at different ends of that spectrum -- says a lot about who we are as Americans. And it seems to me that if we have faith in that system, as I do, we should know; we should have confidence that that system can handle in a fair way Khalid Sheikh Mohammed and deal with him appropriately.
REP. WOLF: But with due -- (inaudible) -- that was not the question. The question was if you were to treat a 19-year-old military personnel who crossed the line in a military court, why would you then give Khalid Sheikh Mohammed in a civilian court a higher status, if you will?
ATTY. GEN. HOLDER: Well, see, I don't necessarily agree with that premise. I don't think that although you might --
REP. WOLF: Well, discovery and things like that. Are you going to call servicemen back in off the field?
The other question was: For those who stand trial in the U.S. courts, if they were not --
REP. OBEY: (Off mike.)
REP. WOLF: Mr. Chair, if I can -- if they were not apprehended by law enforcement officials, do we run the risk of having the evidence against them being inadmissible? Will we release them?
I led the first delegation to Afghanistan. Our young men and women who were there -- and also in Iraq -- were doing incredible things.
They were not necessarily operating under the same Miranda standards as somebody would in the City of Philadelphia or the city of Washington D.C. That's kind of what I'm -- what I'm talking about.
So, what -- would you run the risk of having the evidence against them deemed inadmissible? And would they be released no matter how dangerous they are?
ATTY GEN. HOLDER: The systems that I think that we will use, or have to put in place, will be ones that will be fair; that will be consistent with our notions of due process; and that ultimately will protect the American people.
I don't want to anybody to leave with the misimpression that somehow, some way we're going to be soft on people who were responsible for the horrors of 9/11. They are going to be held accountable. But, we'll do so in a way that's consistent with who we are as Americans.
George Washington -- it was interesting, I gave a speech at West Point, I guess last week -- he said, after I guess the victory at Trenton, Christmas, and I should know the year but I don't know what it was -- he told his troops that the British soldiers who were captured had to be treated in a certain way, even though our soldiers were not being treated in an appropriate way by the British.
So even, you know, our Founding Father -- one of our greatest presidents, realized that what makes this country great is that ability to do what was done back in the 1700s, and what I'm bound and determined to do in the 21st century with regard to even people as reprehensible as Khalid Sheikh Mohammed.
REP. OBEY: Mr. Schiff.
REP. SCHIFF: Thank you, Mr. Chairman. I want to follow up on my colleague's question.
And, Mr. Attorney General, we had a chance to talk about the detainee issue a couple weeks ago. I guess I would phrase it a little differently than my colleague, but much along the same thinking, and that is that I think the military courts-martial are really the best venue for proceedings involving the vast majority of the detainees.
There may be some -- and, ironically, it may be someone like Khalid Sheikh Mohammed who you decide to try in the District Court for other reasons, because you want an even more public venue -- but, I think for balancing the national security needs, as well as the due process concerns, the military courts have got a history, longer than our country's been around, of doing that very well.
And I like the idea, frankly, of being able to hold up to the rest of the world and say -- much as my colleague said, but in reverse, that we're giving the same due process to these people accused of acts of terror that we give to our own troops who are brought up on court-martial charges.
I've introduced a bill along these lines, and I'd love to share it with my colleague. And I've talked with many of your staff about it. One of the features of it, though, in addition to trying most of these people in military courts-martial, is a threshold question, and that is: Are you going to be relying on the status determinations that were made under the prior flawed regime?
There are two determinations that have to be made: One, are they unlawful combatants, or unprivileged belligerents; and two, if they are, should be prosecute them, and where?
But, on that threshold question, I would say that the prior proceedings were so flawed that they need to be redone. That threshold decision has to be remade about whether they are, in fact, unprivileged combatants. And I think that you can use the military courts-martial and modify the UCMJ for that purpose. And I've got a bill that accomplishes that.
And my question is: Do you believe that you will have to redo the status determinations, or do you intend to accept status determinations made under the tribunals that were set up by the Bush administration?
ATTY GEN. HOLDER: No, we are actually making new determinations. We're looking at all of the people who are at Guantanamo, for instance, with -- we're taking a fresh look. Even with regard to those who the prior administration said could be released, we're looking at those as well to make sure that, in applying the standards that we think are applicable, that we are being uniform in making those determinations.
And so all of the people are being examined --
REP. SCHIFF: If I can ask more specifically, though.
I know you're doing a case-by-case determination, but in those cases where you decide you're not going to send them elsewhere, that they're going to be tried, the threshold determination that has to be made is: Are they an unlawful belligerent? And will you be adopting what the Bush tribunal's conclusion was, or will you be establishing a tribunal to make that decision de novo?
ATTY GEN. HOLDER: I think as we make these individualized decisions, we'll be making, again, individualized determinations about where -- for that group of people who should be tried, where they should be tried. It could be in Article III courts; it could be under the Uniform Code of Military Justice -- a great system; or, it could be under military tribunals that I think would be different from those that were previously in place, that would have, from my perspective, greater due process components as a part of them.
REP. SCHIFF: Let me just take this another way, and that is, there's a separate question from "where will they be tried?," and that is the question of: Are they unprivileged belligerents to begin with?
If they're not unprivileged belligerents -- if they're prisoners of war, for example, they're immune from prosecution as a prisoner of war, in most circumstances. But, if they're an unprivileged combatant under the rule of law -- under the laws of war, they can be prosecuted.
The Bush administration had tribunals that decided that they were unlawful combatants. But, they were terribly flawed. Once they got through the tribunals, then they were brought before military commissions where some of them were prosecuted, mostly without success, and overturned by the courts.
But, that first decision still needs to be made. On any one that you don't want to send back to their home country or release, I think the decision still has to be made: Are they an unlawful combatant?
And that's not an issue of whether it goes through, you know -- well, the threshold question, I guess, is: Do you accept any of the determinations made by the Bush administration?
And I will just advocate here, I would suggest that you don't. I would suggest that, on the question of whether they're unprivileged, that that should be reviewed, de novo, by a more competent tribunal. And then the decision should be made, where do they get prosecuted?
So, I would just commend that to you, and thank you again for your diligence on this.
ATTY GEN. HOLDER: I've not been clear. And I guess what I've tried to say is that -- I think I agree with what you're saying, is that we will be making new determinations, both with regard to what courts perhaps they are to be tried in, and what their status is.
We are not, for instance, using the term "enemy combatant" anymore. We indicated that in a court filing, I guess, a couple of weeks or so ago. So that the determinations that we're making are on the basis of a fresh look that we are taking, and based on the accumulation of all of the evidence that we can get from the various agencies that are involved in this process. And that fresh look really starts from the beginning and goes all the way -- all the way through. So, I hope I answered your question.
REP. OBEY: Mr. Lewis.
REP. LEWIS: Mr. Chairman, thank you.
I think the Attorney General's been very generous with his time. I'm not going to take any more of his time. But, I believe my friend Frank Wolf wants to use a bit of my time to clarify the same line of questioning that he was involved in.
REP. WOLF: Well, I do. I thank the Chairman.
And this is an issue that I care deeply about and I'm not going to be -- let it go. We're going to stay with it. I can still remember the people ridiculing when we wanted to pass the National Commission on Terror.
So, let me ask you this question. I've been led to believe -- and there was a report here with regard to the other trials, it says here, "Earlier trials of terrorists in the U.S. demonstrated the necessity for extraordinary security resources that would be needed if some of those in Guantanamo are transferred here."
Newsday and The Buffalo News reported that during the 1995 trial in New York of Omar Abdul-Rahman -- Sheikh Rahman, the mastermind of the '93 World Trade Center bombing -- and they go on to say there were signals going back and forth. And you remember, his attorney was taking information out.
Where you hold these people is very, very important. And I wanted to ask you to tell us a little bit about that -- when they come here to the United States, and after the disposition and the trials.
Secondly, are you aware of -- you remember Officer Pepe who was stabbed in the eye? Do you remember that case?
ATTY GEN. HOLDER: (Inaudible response.)
REP. WOLF: There were also indications here -- it said here that, in many cases, that the captured were given word by their colleagues that they would work to free them.
In addition, during the 2000 trial of Mahmud Salim, one of the terrorists accused in the '98 bombing of the U.S. embassy in Kenya, he stabbed a New York prison guard, Louis Pepe in the eye during an escape attempt.
Al-Qaeda saw the rights given to its members to meet with counsel as an opportunity to carry out a violent escape attempt. Mr. Salim was one of the original followers of Osama bin Laden and the highest ranking al-Qaeda member held in the U.S. at that time. It goes on to say, in addition to trying to escape from prison, al-Qaeda members have communicated with confederates while in prison. It is my understanding that (al Sayyid Nazir ?) was involved in plotting the '93 World Trade Center bombing while in custody at Attica State Prison.
And, in addition, Osama bin Laden has publicly credited Sheikh Abdul Rahman with issuing, quote, "the fatwa that approved the 9/11 attacks while he was in federal prison, despite the high security confinement conditions imposed on him. He was, emerged later, with the assistance of his lawyer, Rahman was continuing to send instructional messages."
And if you recall, on the bombing of the trains in Spain, there was actually communications from some of the tourists (sic) that were in American prisons. Because I was chairman of this committee and we then set up a program that you now have in the prison department to read the mail to make sure there's not -- (inaudible) -- any communication.
So it's a long issue and I'm not going to ask you to get into it now, but I want you to tell us precisely how this is going to be. I met with your team the other day, some of them I felt were good, others, I left without having the best feeling. One person didn't even know some of the most elementary things that I thought for somebody to be headed of the team that he would have known. He didn't even know about it and I'm not going to put you on the spot.
Does al Qaeda have a policy that they will try to release the people if they are in prison? If so, is there an Alexandria or in an urban area, that's not very, very good. So there are a whole series of questions and they're all in the letter and I think out of deference to you and I'm not trying to gotcha, to ask you a question that you don't know.
Would you look at this thing carefully? And I'd like to talk to you and your team about all of these. But where they go and I would ask you to go down to Alexandria and I know you've been to the courthouse, go to the courthouse and walk out and look around and try to get somebody to give you an overview of how conditions were there when the Moussaoui trial took place.
The other question that I have if I can -- would you update us on what the Department plans to do with the growing gang violence? I was the author of setting up the intelligence gang section that the FBI -- can you bring us an update? Do you expect that gang violence in this nation, do you expect MS-13, is it growing? Is it diminishing? What is the impact with regard to gangs in the United States now? What is your expectation for this summer?
ATTY. GEN. HOLDER: With regard to the question of where these trials might take place, as I said previously, no decision has been made, but the concerns that you raised are legitimate ones and you need not apologize for raising them. We are not naive. We understand the people we are dealing with. We understand that they are part of a worldwide group that wants to do us harm. As deputy attorney general, I signed a number of things called special administrative measures to try to ensure that certain prisoners -- certain steps were taken to minimize the possibility that a particular prisoner could have any influence, any impact outside of the prison in which that person was kept. And we would obviously take into account the danger that person presented, that person's role in the organization, that person's ability to desire to try to communicate with others who may not be in this country and come up with a way in which we try these people in a way -- do it in a way so that it is safe for the environment, for the jurisdiction in which it occurs and we have to be sensitive to that.
And the questions that you have asked are the very ones that we will be asking ourselves as we try to make this decision about where these trials might occur, put these trials in places where we think we are most capable of ensuring that the surrounding areas will be kept safe, I mean, this will be a primary concern that we will have.
REP. WOLF: MS-13 gangs. You didn't answer that. MS-13 gang violence -- what are you doing? What's your program?
ATTY. GEN. HOLDER: Yeah. I mean --
REP. OBEY: Very briefly, please.
ATTY. GEN. HOLDER: If you look at the crime rate, it has gone down pretty dramatically over the past few years. An exception to that is the violence that we see in a lot of communities with regard to gangs. There are task forces that have been set up within the federal investigative agencies within the Justice Department to deal with the special problems that gangs present, and that is a place where we will be giving them special attention.
REP. OBEY: Mr. Ruppersberger.
REP. C.A. RUPPERSBERGER (D-MD): Following through on the issue of gangs. I think a lot of what needs to be done and we've been working on it in this committee and Congressman Wolf has been probably the leader in MS-13, Crips, Bloods prisons, whatever. There's a new strike force concept that seems to be a positive concept in a lot of the things we do to fight terrorism or crime generally. And we know there has been serious gang problems in California and now we have a lot of that in the East Coast in the greater Washington area.
There has been established a gang strike force from Philadelphia to North Carolina, including West Virginia with technology, getting real time information, but what's been very successful there is that it's federal, state and local and I'm wondering if you are aware of this or if you could try to prioritize because we're having children in middle school now being recruited for gangs and normally the situation with a gang is that the gang becomes their family because their family life isn't any better.
ATTY. GEN. HOLDER: Yeah. The gang problem is not one that's going to be solved by the federal government; it's going to have to be solved by an effort that involves our state and local partners. We just had a summit meeting of state and local law enforcement, the Justice Department, I guess, three days ago. It's all part of my attempt to reach out to our compatriots, our colleagues in the state and local side and establish ties that, frankly, I think have frayed in the past few years and get back to what I think existed in the '90s where the relationship between those of us here in Washington on the federal side and our state and local partners were seen as a more productive one.
The gang problem is something that the federal government can help because we have unique tools that can be used, be they electronic surveillance, other kinds of --
REP. RUPPERSBERGER: And more money.
ATTY. GEN. HOLDER: And more money. That's true. And the budget is there for that. But there's a knowledge base that exists on the state and local side, especially the local side that is particularly useful in trying to identify what gangs are into what activities, who are the leaders of these gangs.
There is intelligence that you can get from the local side and from the state side that has to be a part of this process. States can't do it by themselves. Local jurisdictions can't do it by themselves, the federal government, we can't do it by ourselves and we have to make sure --
REP. RUPPERSBERGER: I want to get into another area and I'm not sure of my time, but national security branch, which is basically the FBI going more into the intelligence business. We know the CIA does not have jurisdiction within the United States, but again, intelligence is sometimes the best defense against terrorism and other crimes and I know that the FBI is standing up in the national security branch, but the FBI for years since the Eliot Ness days has been arrest, convict and investigate and when you're in intelligence, you're really collecting and analyzing and it's almost a different profession. But its been a while, it's taken a while for the FBI to stand up to the national security branch and I think in the last year they've made a lot of progress.
Part of it is to have that career path, kind of like in the fire department where you have the suppression side and you have the paramedic side. And are you working or are you aware of the national security branch? Where do you see it going right now? Because they do need financial support.
ATTY. GEN. HOLDER: Yeah. I mean, the FBI -- when you're dealing especially with gangs that are of national reach, MS-13, Crips, Bloods, they are --
REP. RUPPERSBERGER: I'm also talking terrorism now, too, more so -- national security branch with the issue of terrorism, dealing with the issue of terrorism.
ATTY. GEN. HOLDER: Okay. Well, in that case, I mean, the FBI has really transformed itself from the agency that was there when I left government, say, in 2001. I believe in a way that it was not before the national security agency in that it has a primary mission, the gathering of intelligence, the analysis of intelligence. I go at 8:30 every morning to meet with the FBI director, members of the CIA, members from other agencies where we go over the past 24 hours' intelligence and that is a primary role now.
REP. RUPPERSBERGER: One other thing is JTTF, Joint Terrorism Task Force, which is, I believe, and everyone takes credit for not having another attack. One of the major issues domestically is the Joint Terrorism Task Force where the FBI coordinates it basically, but you have ICE, you have NSA, CIA, state and local and collecting information, getting information from the CIA on bad guys that might be coming over into the United States and I think as they've grown, we have a lot of more JTTFs all over the country right now.
I would hope that you would focus on that and make sure that they continue to get the funding that they need because they've been very effective. But here's another example and when I talk about in my first line of questioning of making sure that those collectors have the guidelines that are necessary and to make sure that mistakes are made like with Napolitano or whatever, which I'm sure was a mistake, but these are things that take our eye off the ball.
ATTY. GEN. HOLDER: I would agree with you that the Joint Terrorism Task Forces are particularly effective and will be supported.
REP. RUPPERSBERGER: Thank you.
REP. OBEY: Mr. Culberson.
REP. JOHN ABNEY CULBERSON (R-TX): Thank you, Mr. Chairman.
Mr. Attorney General, in my five minutes, I want to bring to your attention on behalf of my colleagues in Texas that represent the southern border, a very successful program that's a win-win that you may not be aware of, it's called Operation Streamline and we do need your help, the support of the Department and expanding it.
Up and down the river, it's a truly successful program supported by the local community -- (audio break) -- Del Rio at the lowest level since they began to keep records, which is astonishing and the Val Verde County jail, which contracts with the Marshals Service actually has vacancies in it and that's a result, again, of the certainty of swift and sure punishment has led people to try to tempt across the border elsewhere and I'm working with my colleagues, Henry Cuellar, Ciro Rodriguez and Congressman Solomon Ortiz, we're working with him to extend this into the Rio Grande Valley and I wanted to be sure to bring it to your attention and work with whoever on your staff that you could designate to help us on this committee and -- I also serve on the Commerce Justice Science Committee, excuse me, this is Commerce, Justice Science, I was in another subcommittee this morning. But we are working together in a bipartisan way to get this program extended up and down the entire southern border.
It is essentially enforcing existing law -- the existing criminal statute. It's up to six months in jail for crossing the border illegally.
But, obviously being, you know, prosecutorial discretion, law enforcement officers using their good judgment, some folks get a few days, some folks get a few weeks, and then they are deported. And the program is very, very successful.
There is also, Mr. Attorney General, wildly different levels of enforcement up and down the Southern border. In Texas, in Del Rio and Laredo, the arrest rate is over 90 percent, nearing 100 percent in some areas. In the Yuma Sector they also have the Operation Streamline program and, again, the crime rate has plummeted. It's very successful, very popular locally.
And, right next door in the Tucson, Arizona sector is where I'm really, really going to need your help. The local U.S. attorney who was there before -- and she's no longer there, refuses to prosecute most of the cases. The Border Patrol has provided numbers which we can share with your staff that 99.6 percent of the people arrested by the Border Patrol in the Tucson Sector are never prosecuted -- and they're generally home in time for dinner, even if they're carrying a load of up to 500 pounds.
And we asked the Border Patrol agents how long did it take the smugglers to "get the memo," so to speak, that if you carried less than 500 pounds you weren't going to be prosecuted? They said it was about 48 hours. I mean, it's pretty quick. These guys are no dummies.
And it is a -- the judges are ready to help you in that sector. We've got cooperation of -- the Border Patrol's ready to help. I know this subcommittee's ready to help. There's a -- it's a bipartisan effort. We are really going to need your help to focus the attention of whoever the new S.U. (sic) -- new U.S. attorney is in that sector to make sure that the law is enforced there. Obviously, in accordance to what your local capacity needs are.
But, in any event, I want to put it on your radar screen. I look forward to working with you, sir. And, if you could designate someone on your staff to work with us. And I'd want to ask if you would support the expansion of that very successful program and work with us to help, in a bipartisan way, to see that it's extended up and down the border?
ATTY GEN. HOLDER: Yes, I've read a lot about Streamline, and I agree with you that it has shown pretty remarkable success.
It's interesting, though, that it really -- it, kind of, what Streamline is is different, as you go from, you know, one part of the border to another. The same basic concept, but it really has different versions.
One of the concerns I have about it is that I don't think we've given enough attention to the downstream impact of Streamline, in terms of detention, capacity, you know, court capacity to (try these -- ?), the cases that are generated. It doesn't mean it's not a good idea, it just means that I think if we're really going to do it, we really ought to do it, and support it, so that we can make sure that is as successful as it possibly can be.
REP. CULBERSON: I worked up a lot -- I got a lot of information on this, so I look forward to working with you on it. I've just got a couple of minutes left, but I wanted to tell you that it is -- there are vacancies -- (inaudible) --.
I think I got -- do I have, like, a minute left?
REP. OBEY: (Inaudible response.)
REP. CULBERSON: About a minute and a half.
Well, let me ask Mr. Holder, if I could, would you explain your own personal position, the position of the Department of Justice on whether or not the D.C. v. Heller case was correctly decided? And do American citizens have an individual right to keep and bear arms, under the Second Amendment?
ATTY GEN. HOLDER: Under our system of law, the Supreme Court has spoken, and the indicated that the Second Amendment does confer an individualized right. As a law enforcement officer, as a lawyer, I'm bound to follow what the Supreme Court has said.
REP. CULBERSON: So, the Department will support that opinion and not seek to overturn it?
ATTY GEN. HOLDER: Yeah, I don't think there's a basis to try to overturn it. I mean, the Supreme Court has spoken.
REP. OBEY: Mike Honda.
REP. MIKE HONDA (D-CA): Thank you, Mr. Chairman.
And, again, thank you for your time and your insights.
I have three questions regarding the Trace Data restrictions. I applaud you and President Obama for the administration's pledge to repeal the Tiahrt amendment, which is on your urban policy agenda. You know that the Tiahrt amendment restricts the ability of local law enforcement to access important gun trace information and give police officers across the nation the tools they need to solve gun crimes and fight illegal arms trade.
So one question is, can you talk about the administration's commitment to repealing these restrictions; and, will the administration's budget recommendations include reform of the Tiahrt amendment?
The second one is, the reason that was given to not to repeal the amendment is that the restrictions protect the identities of federal undercover law enforcement. And I believe that President Obama, as a senator, when he co-sponsored with Senator Menendez, their bill had taken care of that, where it allowed the ATF to withhold specific trace information if it identifies any undercover law enforcement officer. And I was just curious whether you believe that these protections could deal with the hypothetical risk posed by removing these restrictions?
The third is, the background check record description. The third, a key element of the Tiahrt amendment, is the requirement that the FBI destroy firearms background-check records within 24 hours of a completed transaction. I have a concern about that short timeline. And I believe that past administrations have had -- maintained 180 days; reduced to about 90; and the Tiahrt would say it's within 24 hours.
Director Mueller of the FBI had testified in '07 that he believed that there should have been a more substantial period of time relative to these records being kept. Do you agree with the Director Mueller's comments? And, what would be, in your opinion, a reasonable amount of time?
ATTY GEN. HOLDER: Let me go through those. I mean, the administration is in the process of finalizing its position on the Tiahrt amendment and we will be making -- setting forth the administration's position when we submit the 2010 budget. I think it is our view, though, that we are concerned about the impact that the amendment has had on the ability to share information that is needed by state and local authorities.
The second question, with regard to protecting informants, I think there are ways in which, if the administration decides to support repeal, that there are ways in which those concerns can be dealt with so that the information sharing does not put anybody at risk.
And then with regard to the question of records, and the amount of time that they're kept, I mean, I would agree with the Director that the period that we now have seems to me is a little short. I'm not sure where that number ought to be set, but I think that there ought to be some period of time that would allow for law enforcement to do -- give law enforcement an opportunity to do its job, while respecting the concerns that people might have as a result of the Second Amendment.
I don't there's necessarily a tension there, it's just a question of figuring out how -- where we set that, where we set that number.
REP. HONDA: These amendments, and the destruction of records so quickly, is there a role, if any -- role played in the availability of these arms being traded over the border in our efforts to combat the drug cartels and the incidence of so many firearms, and the (consular ?) general for Mexico in my area said that these -- (inaudible) -- the high-powered arms are more relevant and more prevalent among the gangsters than among law enforcement.
And I wonder whether these kinds of informations are necessary and play a part in the inability or the difficulty of tracing these arms?
ATTY GEN. HOLDER: I think that if we had a longer period of time we probably could be more effective in doing that tracing. And that's a particular concern if you talk to, as I talked to Medina -- Attorney General Medina Mora, he indicated that about 63 percent of the guns they are getting in Mexico now are high-powered assault weapons. And that's gone up pretty dramatically from where it was a few years before.
And so anything that we can do to help our Mexican counterparts in that regard, I think is appropriate. Although, I think that also has a potential benefit for law enforcement on our side of the border as well.
REP. HONDA: A related question now, relative to guns shows and the sales of arms at guns shows, and the restrictions or the regulations we put behind the sales of firearms at gun shows.
Are they different from the requirements that we have for retail stores who are selling arms in the stores? And if they are the same, I'd like to know that. If they are not, why not? And, is there a role that your office can play in bringing some consistency, so that it appears that these guns over the border appears to come from particular states that have certain rules that maybe could be more consistent.
ATTY GEN. HOLDER: Yeah, the rules are different with regard to the sale of weapons by federally licensed firearms dealers, and at least some who can sell weapons at gun shows. And I think that's a question that we in law enforcement, in conjunction with people in, I guess, the advocacy community need to talk about and see if there are ways in which we can reach a middle ground, something that I think will benefit those of us who are in law enforcement, trying to do a job, being respectful of the Second Amendment rights that everybody in this nation has.
And it would seem to me that, you know, a dialogue between many of us in law enforcement, and those, for instance, at the NRA, (and speaking at ?) organizations. It might be a good thing to sit down and to talk about these issues, and see if there is a way in which we can resolve them -- respecting the concerns that they have and the concerns that we have.
Too often there is conversation and shouting at each other without any kind of meaningful dialogue. So, I think that is, at least, a possibility.
REP. HONDA: Would your colleague across the border be helpful -- (inaudible) --
REP. OBEY: The gentleman's time has expired.
REP. PATRICK KENNEDY (D-RI): Thank you.
Welcome, Mr. Attorney General.
It's an honor to have you. Thank you for your service to our country.
Last year the Urban Institute's Justice Policy Center released a study on drug courts entitled, "To Treat or Not To Treat: Evidence on the Prospects of Expanding Treatment to Drug-Involved Offenders." I know you spoke earlier a little bit about expanding the budget for drug courts, what are your efforts going to be to ensure proper funding for our nation's drug courts in Fiscal 2010 in order to serve the estimated 1.2 million individuals identified in the study that the Urban Institute was citing from their model?
And, in doing so, what do you think the Justice Department should be doing, more in that effort, to reduce recidivism in the context of the Second Chance Act, and in the context of, you know, dealing with the mentally ill in our prisons? Specifically, for example, making sure that they get their medications when they are about to be released so that they don't end up self medicating when they get released. As you know, they don't even get on Medicaid when they get released, and that forces many of them to go out and self medicate, and it's a vicious cycle.
I would encourage you to look at that piece of legislation. It was previously sponsored by Julia Carson, out of Indianapolis. I'm proud to sponsor it today, but I would love to get you to look at it.
In addition to that, one of the things that's always boggled my mind, in terms of justice, is the fact that we have these back-log of rape kits. You know, we never get caught up in our DNA testing. You know, the American public watches "CSI" -- you know, "Miami," "CSI-New York." They watch all these things and they assume that all of our departments, and all of our -- DOJ is just, you know, we've got the most modern laboratories and we're just doing all these great tests on forensic evidence all the time.
If they only knew -- if they only knew -- how many crimes are going unsolved in this country simply because these DNA tests were sitting on the shelves but for the lack of money to just do the tests. And if we simply did the tests we could actually solve crimes -- literally solve crimes because we have done the DNA tests on all these other criminals who have come into our Judicial system from around the country.
Now we're requiring it for all these prisoners around the country in their prison systems. And if, at the very least, we could just match existing DNA samples with people that are already in prison for other crimes, you'd bring closure to those victims. But, what happens? We're letting them sit out there. A lot of this material is becoming degraded, so that it's not becoming useful for future testing.
How in the world can we justify this lack of funding for these rape kits? And how can we justify lack of funding for recidivism reduction in things like drug courts; and paying for medication for the mentally ill, which we know is going to mean that there are going to be less mentally ill coming back to prison?
ATTY GEN. HOLDER: You raised a lot of good points. And, actually, I was trying to find the numbers -- (inaudible) -- because they've now been shared with me. There is, in this budget, $150 million for DNA analysis and related programs. And you're right, there is a substantial amount of DNA evidence that really sits -- for instance, in the FBI, that has not been analyzed.
As a D.C. resident at least, one of the things I would point out is that -- I think the number, this number is right, about a third of that is -- it comes from Washington, D.C. where we have been trying to get funding for our own forensic crime lab so that we would have an ability to do that and take that off the hands of the FBI.
There's also $60 million in the budget for drug courts for next year, an expansion of a program that worked well here in Washington, D.C. I had personal experience with it when I was the U.S. attorney.
And you've touched on something I think that's a really -- a really troubling thing that I saw as a judge when I was here in D.C., where I saw substantial numbers of people who had mental issues and who were in the criminal justice system. And they were clearly in the wrong place. There's no dispute that they committed petty crimes, but they were clearly in the wrong place and not getting the kind of treatment that they needed.
And so I think we, as a nation, have to understand that and look at who is in jail, for what reason; expand the resources for those who have mental issues. It is something that, again, if we spend that money there we will actually save money, I think, over the long haul, and use our limited criminal resources for people who truly deserve to be there.
REP. KENNEDY: Well, if I could, I'd also like to press you on the case of kids in jail. In Rhode Island we just put a 16-year-old in an adult corrections institution. Now, granted, it was for a murder but, I mean, even if he committed murder there's no reason why anywhere in this country a child ought to be housed with an adult -- period.
I don't know, what's your opinion on that?
ATTY GEN. HOLDER: Yeah, I mean, there are instances where I think -- rare instances where the prosecution of juveniles, or people less than 18 years of age, can be tried appropriately as adults. But, in terms of how they are housed in the criminal justice system while they are awaiting trial, or while they are serving sentences, they should be kept separate. It is not -- it's simply not appropriate to mix those two populations.
REP. KENNEDY: Well, maybe we could work together on trying to make sure that we make that stipulation to states -- they expect to receive juvenile justice dollars, that they're not mixing kids with adults. We know that those kids are going to come out psychologically damaged, and worse offenders, if they go in with adults at all.
And I might add, I don't know what we're doing in this country when we have 2,500 kids who've been handed down "life, without parole." That's an indictment on this country. These are kids that haven't even reached their 18th birthday. And all neuroscientists will tell you their frontal lobe hasn't even been fully developed. And we're saying, you know, "three strikes and you're out." They're already "out" and they haven't even been able to get to first base in life.
It's a pretty sad indictment on our country. I mean, I think those "three strikes" are on us as a society for not coming up with a better mouse trap. And I guarantee you -- when I was up at the juvenile correction hall in my state three-quarters of the kids, when I asked them if their parents were in jail at the time that they were there, they put their hands up. This is not a mystery where these kids come from.
And why we don't think that early intervention shouldn't make more of a difference, and we're just waiting for a lot of these tragedies to take place. And we know how to do better, and yet we don't do it. Do you think they're going to do more with the -- (inaudible) -- a program, and (JBAC ?), and juvenile justice monies that you have in your budget, are you going to focus a lot on kids, as attorney general?
ATTY GEN. HOLDER: Yeah, it was one of the things that I focused on when I was deputy attorney general. And we focused on a program that we started called "Children Exposed to Violence," and the impact that that had on kids; and how, when they're victimized or when they see violence, they're much more likely to become victims of violence when they're adults -- which was, I thought, very interesting, and then also much more likely to commit crimes.
And so, yeah, that is something that I really want to focus on. It is something that I hope I will leave as a legacy as attorney general -- focusing on, again, that prevention side --
REP. KENNEDY: Great.
ATTY GEN. HOLDER: -- so that we keep kids out of the system.
REP. KENNEDY: Great. Well, I wish you luck and look forward to working with you on that. Thank you, Mr. Attorney General.
REP. : (Off mike.) 15 seconds, just to add something --
REP. OBEY: Yeah.
REP. : -- very, very quickly?
I just wonder if I could, for the record, Mr. Chairman, just to reiterate some sworn testimony we got from the ATF director, Mr. Attorney General, that over 99 percent of the licensed gun dealers in America are following the law and are doing their jobs. So, thank you. (Wanted to ?) make sure we get that for the record, so the -- it's important. Thank you.
ATTY GEN. HOLDER: I wouldn't doubt that statistic at all. You know, and the focus, to the extent that we need to, needs to be on that very, very, very small number of dealers who are not following the law. But, I think -- (inaudible) -- right.
REP. OBEY: Mr. Attorney General, I know we need to get you out of here fairly soon. I'm going to ask you a few basic questions -- at least a few which will actually be related to the budget.
ATTY GEN. HOLDER: Uh-oh.
REP. OBEY: (Laughs.)
But, first let me ask you about warrantless wiretapping. Last week The New York Times revealed some significant problems with the NSA's warrantless wiretapping program, including the charge that NSA illegally collected the domestic communications of Americans. Most of those problems were identified during a periodic review by the program -- of the program by your department.
Some say these revelations are a sign that the system is broken because significant violation occurred. Others say that they are a sign the system is working because the violations were identified.
How often does DOJ review the workings of these warrantless wiretapping programs? If the periodic review identified problems this severe, do you think the program would benefit from continuous DOJ oversight?
And, let me just pop the other questions at you on this subject also: The Times article says that part of the problem is NSA's inability to distinguish between domestic communications and international messages passed through American communications gateways. When the Congress passed the legislation authorizing NSA's program we did so with the understanding that they had those technical abilities.
Are revisions necessary to the law to include additional safeguards now that it appears NSA has trouble distinguishing between these two types of messages?
And then I have two other questions on this point that I'll submit to you for the record.
ATTY GEN. HOLDER: The Justice Department and the NSA were conducting, I think, routine oversight of the activities that you were describing, and made the determination that there were issues -- there were problems.
Those issues were brought to the attention of the FISA court. Changes were made, after interacting with the judges, and reauthorization to use those techniques was not sought until the judges were satisfied that the proposed changes dealt with the problem.
But, there are periodic reviews that are done by Justice and by NSA, and I would be -- (inaudible) -- could perhaps share with you in a -- by letter, or in a different form, I could give you a better sense of exactly the time period in which those reviews occur.
But, I actually think this is an indication of where the system worked. I mean, clearly it was a problem, but it was something that was discovered, was reported, was modified, and the courts are now monitoring to make sure that the changes that have been put in place are, in fact, being carried out.
With regard to the question about NSA having trouble making the distinction between foreign and domestic transmissions, that is one I'll have to get back to you on, Congressman -- Mr. Chairman. I don't, I'm just not, I don't think I'm steeped enough in that to know -- to speak intelligently about it.
REP. OBEY: All right.
Earmarks: As you know, there have been occasional discussions in this town about the advisability of Congressional earmarks. And Congress is routinely criticized for earmarking even though Congressionally-directed projects represent only a fraction of the funding under the Executive Branch discretion.
The Congress has taken several steps in recent years to ensure transparency and accountability in our earmarking process, but it is not clear that the Executive Branch has had the same degree of transparency in its process for allocating funding.
This committee directed the Office of Inspector General to review the award process for Fiscal 2007 Juvenile Justice grants based on allegations that award decisions may have circumvented the peer review process. In the omnibus spending bill enacted in March, the committee also directed the Department to report to this committee within 30 days on the results of the Department's internal review of that award process. That deadline has now passed. We don't have the report yet.
When can the committee expect to receive the report?
In general, what's the Department's policy on the role of peer review in the award of grants?
Most specifically, under what circumstances might the Department award a grant to an applicant who is ranked lower?
What level of departmental authority is entitled to overrule a peer-reviewed decision?
And, for cases in which peer review is overruled, what kind of disclosure is required to ensure that the decision is transparent?
ATTY GEN. HOLDER: Well, the way in which I would view this is that I would advise the president; and develop the Department's budget based on the national priorities that we have identified, without falling into the earmark way of which -- way in which of doing things; to rely on the experts we have in the Justice Department to come up with identifying programs that are worthy of funding, worthy of support.
We have a lot of good people in the Office of Justice Programs, and the various components that make up OJP, and I would rely on them so that we came up with fair competition and good decisions about what programs the Department would support.
Now, with regard to the request that was made of the inspector general, of that I'm not aware. I will relay to him the concern that you have expressed about the timeliness of that report. But, the IG acts pretty independently of the Department, and so I'll -- but, I will relay to him the concern that you have.
REP. OBEY: No. No, it's the report from your agency that's holding --
ATTY GEN. HOLDER: It's from us?
REP. OBEY: Yeah.
ATTY GEN. HOLDER: All right, well, in that case I will look into it and see what going on.
REP. OBEY: But, my point is simply that there are programs for which Executive Branch establishes criteria for funding, and then there seems to be exceptions that are made for that criteria. Legitimate reasons why there are exceptions, but if one branch of government is going to be held to a formulaic standard, it seems to me that we ought to ask the other branch of government to do the same thing, which is why I asked the question.
ATTY GEN. HOLDER: -- (inaudible) --
REP. OBEY: Mr. Wolf wanted to --
REP. WOLF: Following up on the Chairman's issue, about six or seven years ago we had a problem in Northern Virginia with violent gangs. They took Brenda Paz, who was in the witness protection program, down to the Shenandoah Valley and killed her -- MS-13. The Justice Department person said -- and I put an earmark in to deal with the gang issue in this region, and if you look at the reports we're doing better than any other region -- and yet the Justice Department career person said there is no gang problem in Northern Virginia. And it just so happened that that person lived in Northern Virginia.
So, I think what the Chairman may very well be saying, I think sometimes you can see things from this side, and maybe the Justice Department may not be always right in its decisions that it's making. Had we not done this, crime would have been rampant much more so.
And, on this whole issue of it, as the gentleman from Maryland was talking, we have in this region now a crime -- anti-gang problem, with FBI, DEA, ATF, Marshals Service, and every local law enforcement, Arlington, Fairfax -- (inaudible) --. And yet the Justice Department person, along the lines of what the Chairman says, "We're not going to do that because they said it wasn't a problem." And we put an earmark in there, and I think it's made a big difference. It's saved a lot of lives.
ATTY GEN. HOLDER: Well, I mean, I think we have to come up with, you know, funding schemes, resources, attention for problems that are real. And I don't know who you talked to but, I mean, obviously there is a gang problem here that we have to deal with.
I remember Jim Comey, when he was the U.S. attorney in Richmond, came up with an idea about something he called "Project Exile," and we found ways in which we funded that. And I'm not sure if that was an earmark or not, but it was an effective program that ultimately got replicated around the country.
And so I think that we want to perhaps stay away from earmarks, but I think we want to, -- (inaudible) -- we can, identify programs that work, identify problems that exist and programs that work. And then, working together, fund them and support them.
REP. OBEY: Mr. Secretary -- or, I mean, Mr. Attorney General, I know you have to leave, but let me simply say I will submit for the record a series of questions, some of them involving the question of the FBI's growth policy, others involving the question of staffing levels at prisons. And especially the committee's concern about whether or not we are sufficiently coordinating between Justice and Homeland Security, in terms of budget growth, because some of those things intertwine.
And then I want to simply make one last comment on torture. And I'm not quite sure how to say this, but let me say we have already had prosecutions of people for interrogation. When people ask whether or not we should have prosecution for people, we've already had it. It's just been for some low level grunts at Abu Ghraib. We haven't had any -- well, with a couple exceptions, we haven't had any more.
What bothers me, in addition to the fact that it occurred at all, is the fact that I have no question that Congress was lied to. I absolutely know that I was lied to -- in several closed door meetings when I asked specific questions about torture, from a variety of agencies.
And, in terms of whether something is defined as torture or not, The Washington Post editorial two days ago indicated that one person was waterboarded 183 times in one month.
And another --
AUDIENCE MEMBERS: (Off mike.)
REP. OBEY: -- and, with all due respect, this is a Congressional committee hearing and I'll clear the room if there are any other comments. No editorializing.
I'm told that another person was waterboarded 83 times in one month. Now, if that isn't torture then I'm Alice in Wonderland.
And I can recall, after the scandals in Chile, when a good many of us in Congress wanted to have the full story told about what happened in that government. Or Egypt, where we have criticized their lack of human rights, and the way they deal with prisoners, as well as their own political opposition. So, it seems to me that we have complained many times about torture when it's engaged in by other countries.
And I have to confess that I have been, I've been very reluctant to support the idea of any significant, widespread prosecution of people -- even though I vehemently disagree with the idea of torture, because I do not believe in politicizing political judgments. And so I instinctively lean over backwards in preferring that we not have a wholesale sweep of past conduct.
But, having said that, I have to say that I get increasingly disturbed when I watch television -- when I watch C-SPAN, as I have a couple of mornings this week, and I see people on the tube, former government officials, enthusiastically defending what they did and playing word games with the national television audience.
And so it seems to me that the important question isn't whether or not there is widespread prosecution of people who have -- who either carried out or originated instructions, or legal opinions, it seems to me the important question is whether or not we're going to strike the right balance between pursing personal wrongdoing and making sure that the country has the correct narrative about what did happen, so that they understand who did what, what did constitute overstepping of the line. Because I think this country, with this news being out, I think we have an obligation to say to the world what we think goes beyond the line and what doesn't.
So, you've got a tough job to do, as do others in the administration, in determining how to proceed with this issue. But, it is important that we get it right. And I hope that, in the end, we can produce a balanced, disciplined approach to this problem.
I don't want things swept under the rug, neither do I -- having come from the state of Joe McCarthy, I also don't want to see people, in their zeal to go after wrongdoing, wind up catching people in the net who really don't belong there. It requires a great deal of discretion, and I have a lot of confidence in your ability to help (find that. ?).
ATTY GEN. HOLDER: Thank you.
Mr. Wolf, I'd love you to be able to comment.
With that, thank you very much for coming.
Because we have not yet received the president's complete budget for Fiscal 2010, the hearing record will remain open for two weeks following the budget submission so that members have an opportunity to provide questions for the record related to the budget details.
Thanks for coming.
ATTY GEN. HOLDER: Thank you.