[Senate Hearing 109-223]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-223

                              [STAR PRINT]
   CONFIRMATION HEARING ON THE NOMINATIONS OF CAROL E. DINKINS TO BE 
 CHAIRMAN OF THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD AND ALAN 
  CHARLES RAUL TO BE VICE CHAIRMAN OF THE PRIVACY AND CIVIL LIBERTIES 
                            OVERSIGHT BOARD
=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                            NOVEMBER 8, 2005

                               __________

                          Serial No. J-109-48

                               __________

         Printed for the use of the Committee on the Judiciary







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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
                       David Brog, Staff Director
                     Michael O'Neill, Chief Counsel
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director




















                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas........     1
    prepared statement...........................................   115
Leahy, Hon. Partrick J., a U.S. Senator from the State of 
  Vermont, prepared statement....................................   119

                               PRESENTER

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of 
  Texas, presenting Carol E. Dinkins, Nominee to be Chairman of 
  the Privacy and Civil Liberties Oversight Board................     2

                       STATEMENTS OF THE NOMINEES

Dinkins, Carol E., of Texas, Nominee to be Chairman of the 
  Privacy and Civil Liberties Oversight Board....................     4
    Questionnaire................................................     5
Raul, Alan Charles, of the District of Columbia, Nominee to be 
  Vice Chairman of the Privacy and Civil Liberties Oversight 
  Board..........................................................    52
    Questionnaire................................................    54

                         QUESTIONS AND ANSWERS

Responses of Carol E. Dinkins to questions submitted by Senators 
  Durbin, Feingold, and Leahy....................................    87
Responses of Alan Charles Raul to questions submitted by Senators 
  Durbin, Feingold, and Leahy....................................   101

                       SUBMISSIONS FOR THE RECORD

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois, Hon. Susan M. Collins, a U.S. Senator from the State 
  of Maine, Hon. Joseph L. Lieberman, a U.S. Senator from the 
  State of Connecticut, and Hon. Patrick J. Leahy, a U.S. Senator 
  from the State of Vermont, joint letter........................   117
Washington Post, August 8, 2005, article.........................   122





















 
   NOMINATIONS OF CAROL E. DINKINS, OF TEXAS, TO BE CHAIRMAN OF THE 
 PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD AND ALAN CHARLES RAUL, OF 
THE DISTRICT OF COLUMBIA, TO BE VICE CHAIRMAN OF THE PRIVACY AND CIVIL 
                       LIBERTIES OVERSIGHT BOARD

                              ----------                              


                       TUESDAY, NOVEMBER 8, 2005

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:30 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn, 
presiding.
    Present: Senator Cornyn.

OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE 
                         STATE OF TEXAS

    Senator Cornyn. The Committee will come to order.
    I want to thank Chairman Specter for scheduling today's 
hearing. This hearing involves two very important positions 
recently created by the Congress. The Privacy & Civil Liberties 
Oversight Board was created based upon the recommendations of 
the 9/11 Commission, and is designed to oversee our 
Government's commitment to defend civil liberties while we do 
the work we need to do to find out who it is that is trying to 
hurt us. As the Chair and Vice Chair of this Board, both of you 
will fill vital positions within the Government. I hope we can 
get your nominations voted out of the Committee and through the 
Senate so you can get to work as soon as possible.
    As a country, we cherish our civil liberties and we are 
committed to vigorously defend them, to ensure that we maintain 
our way of life. Congress works hard to try to strike the right 
balance, a careful and wise balance between national security 
and civil liberties. While this is not always easy, nor can we 
always claim to have gotten it exactly right, I do believe that 
we do so with the best interests of our Nation in mind, and 
that we do so in a manner that is both honest and in good 
faith.
    That is why I am disappointed when we hear what turn out to 
be false reports or scare tactics about phantom civil rights 
violations. False reports and scare tactics serve no legitimate 
purpose, but they do a grave disservice to the American people. 
The war on terrorism must be fought aggressively, but 
consistent with protection of civil rights and civil liberties. 
Whenever real civil liberties problems do arise, we must learn 
about them right away so that we can fix them swiftly.
    Every false allegation undermines true allegations, and 
that hurts us all. If anything, false claims about civil 
liberties violations actually make it harder to monitor real 
civil liberties issues in the future, for the same reason that 
eventually no one listened to the little boy who ``cried 
wolf.'' And that is why I encourage honest, responsible and 
fair discussions about the war on terrorism, civil liberties 
and the USA PATRIOT Act.
    The Privacy and Civil Liberties Oversight Board will play 
an important role in this debate. Both of you will be expected 
to give honest, responsible and fair review of the development 
and implementation of laws, regulations and executive branch 
policies related to efforts to protect the Nation against 
terrorism, and you will also be expected to ensure that 
concerns with respect to privacy and civil liberties are 
appropriately considered. And I stand ready to work with both 
of you, and I know the Committee as a whole does as well.
    [The prepared statement of Senator Cornyn appears as a 
submission for the record.]
    Well, I see we have the senior Senator from Texas here. I 
know she is eager to make an introduction, so let us turn to 
Senator Hutchison.

PRESENTATION OF CAROL E. DINKINS, NOMINEE TO BE CHAIRMAN OF THE 
PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD, BY HON. KAY BAILEY 
       HUTCHISON, A U.S. SENATOR FROM THE STATE OF TEXAS

    Senator Hutchison. Thank you, Mr. Chairman. I thank you for 
holding this hearing.
    I am very pleased to be here with my friend, Carol Dinkins. 
Carol has been nominated to chair this Board, the Privacy and 
Civil Liberties Oversight Board, and I really cannot think of a 
better person for this job.
    I have known Carol for a long time. She is a leader, as you 
know, Mr. Chairman, in the legal field in Texas. She has worked 
with the law firm of Vinson Elkins through most of her career, 
and during her tenure there has become a leading expert in the 
United States in environmental law. She has represented clients 
across various industries, and has handled all aspects of 
client counseling from litigation to mediation and standard 
business transactions. She served on the firm's Management 
Committee and currently chairs the firm's administrative and 
environmental law practice.
    In 1981, Carol left Vinson Elkins to serve as the Assistant 
Attorney General in Charge of the Environmental and Natural 
Resources Division in the Department of Justice. In this 
position she supervised the Government's litigation in Federal 
environmental, natural resources, Indian and public lands 
cases. In 1984, she became the Deputy Attorney General of the 
United States, the second ranking official in the Department of 
Justice. Her responsibilities included day-to-day management of 
the Department's 60,000 employees, as well as working with 
members of Congress, the White House, the Cabinet, and sub-
Cabinet officers.
    Carol Dinkins is a member of the State Bar of Texas, the 
Federal Bar Association and the American Bar Association. She 
has also served as Chair of the ABA Standing Committee on the 
Federal Judiciary. Her active participation in the legal 
community has earned her many awards and recognitions, 
including being cited as one of the best lawyers in America.
    I am proud that she hails from my alma mater, the 
University of Texas at Austin, where she earned her bachelor's 
degree, and later attended the University of Houston for her 
JD.
    I know that her experience in both the public and private 
sectors have prepared her to serve as the first Chair of the 
Privacy and Civil Liberties Oversight Board, and I am very 
pleased that she has been willing to accept this nomination.
    And, Mr. Chairman, I know that your holding this hearing 
means that you also have an interest in expediting these 
confirmations so that we can get the Board set up and ready to 
go.
    Thank you.
    Senator Cornyn. Thank you very much, Senator Hutchison. I 
know you have other commitments, and I have already told our 
two nominees that we have stacked votes here in just a few 
minutes, we will soldier on the best we can. But thank you for 
being here and introducing Ms. Dinkins.
    Since I have had the honor of also knowing Carol Dinkins 
for a number of years too, I will not repeat all the nice 
things that Senator Hutchison said, but just put me down as 
ditto for all those compliments, and I agree the President has 
chosen wisely as the Chair of this Board.
    Our other nominee is Alan Raul, who is the President's 
nominee to serve as Vice Chair of the Privacy and Civil 
Liberties Oversight Board. He is a partner in the prestigious 
Washington, D.C. law firm of Sidley, Austin, Brown and Wood, 
and he too brings significant public sector and private sector 
experience to this job.
    Mr. Raul's previously served at the White House as 
Associate Counsel to President Reagan. He has also served as 
General Counsel of the Office of Management and Budget, and as 
General Counsel to the U.S. Department of Agriculture. Mr. 
Raul, I am confident your past Government service will serve 
you well in this new position as well.
    I welcome both of you here.
    As I told Ms. Dinkins yesterday when she was in my office, 
just catching up after not seeing each other for a while, we 
had a chance for some informal conversation. I will tell you, 
Mr. Raul, what I told her yesterday. I said the fact that we do 
not have a packed audience here or packed members of the Senate 
Judiciary Committee here does not mean that they are not 
listening and not interested, because certainly they are and 
certainly their staff is here. But these days, given the 
contentious nature of some of our fights here on the Judiciary 
Committee in particular, the fact that this is not a packed 
dais up here is not a bad thing. It is probably a good thing.
    I am hopeful that we will be able to, as Senator Hutchison 
and I have already said, move promptly on these nominations.
    At this time I would like to turn now to Ms. Dinkins, and 
any opening remarks you would care to make, we would be glad to 
hear.

 STATEMENT OF CAROL E. DINKINS, NOMINEE TO BE CHAIRMAN OF THE 
          PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

    Ms. Dinkins. Thank you, Mr. Chairman. I appreciate your 
kind words and those of Senator Hutchison as well. It is a 
great pleasure to be here today, and a privilege to be 
nominated by the President to Chair the Privacy and Civil 
Liberties Oversight Board, and if confirmed, I will be 
privileged to serve with Alan Raul, and Ted Olsen, Lanny Davis 
and Frank Taylor, all of whom are men of great distinction and 
of very considerable achievement and experience.
    Having served as Assistant Attorney General for the Office 
of Legal Counsel, and more recently as Solicitor General of the 
United States, Mr. Olsen is well known to this Committee. I was 
fortunate to serve as an Assistant Attorney General when he was 
the head of the Office of Legal Counsel at the Department of 
Justice, and I sought his advice and counsel on a number of 
difficult matters. From that experience, I know that he is 
careful, measured and thoughtful, and he is thorough in his 
legal analysis. He is an independent thinker, and he is 
squarely grounded in the law.
    Mr. Chairman, I would like to present Lanny Davis, who is 
behind me.
    [Mr. Davis stood.]
    Ms. Dinkins. Thank you, Lanny.
    Lanny has a great depth of experience as Special Counsel to 
President Clinton, and that will be invaluable to the Board, 
which is housed within the Executive Office of the President.
    The other member, Frank Taylor, who is here also, was a 
long-time career Air Force officer in the area of security, 
before he was Secretary of State, as Counterterrorism 
Coordinator, and he is now head of security at General 
Electric.
    The breadth of this collective experience will assure that 
this Board is well suited to carry out the functions and the 
great responsibility that has been assigned it. We see that it 
will be a particular challenge to have the opportunity to be 
the first members of this Board, and if Alan and I area 
confirmed, to be the first Chair and Vice Chair. We will be 
shaping the organization of the Board and working with its 
members to develop and carry out the initial agenda.
    If confirmed, my first priority as Chair, with Mr. Raul's 
very able assistance, will be to engage an Executive Director 
and to do what is necessary to get the Board up and running. We 
will convene as soon as possible to develop our agenda and set 
priorities, and an integral part of that agenda will be to 
reach out to those who are interested in this Board and its 
activities.
    We would welcome the opportunity, if confirmed, to meet 
with members of Congress who may wish to share their views on 
the role and activities of the Board, and we look forward to 
reporting at least annually to the Congress on our major 
activities.
    Thank you.
    [The biographical information of Ms. Dinkins follows.] 



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    Senator Cornyn. Thank you, Ms. Dinkins, and thank you for 
introducing the other members of the Board who are here with 
us, and welcome.
    Mr. Raul, we will now turn to you for any opening comments 
you would like to make.

STATEMENT OF ALAN CHARLES RAUL, NOMINEE TO BE VICE CHAIRMAN OF 
        THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

    Mr. Raul. Mr. Chairman, thank you for your kind 
introduction earlier.
    It is a great honor and responsibility to appear before 
this Committee as President George W. Bush's nominee to serve 
as Vice Chairman of the Privacy and Civil Liberties Oversight 
Board. I am humbled and inspired that the President has asked 
me to help our Nation maintain its constitutional soul in the 
process of defending itself and ultimately vanquishing enemies 
who have sworn to do us brutal harm. This mission is surely one 
of the most important and challenging roles a lawyer in our 
country could be asked to undertake.
    If I am confirmed it will be a special privilege to embark 
upon this initiative with such distinguished, experienced and 
independent-minded colleagues as Carol Dinkins, Ted Olsen, 
Lanny Davis and Frank Taylor. My prospective fellow Board 
members are as talented and patriotic as any group with whom 
one could hope to work. I look forward to sharing 
responsibilities, efforts and objectives with them.
    I am under no illusion that we can or should please 
everyone with the work of the Board. As embodied in the statute 
establishing the Privacy and Civil Liberties Oversight Board, 
our advisory and oversight obligations reflect a certain 
tension between protecting the precious liberties that are 
vital to our way of life, and acknowledging the additional 
powers the Federal Government may need to conduct the war on 
terrorism.
    While I recognize that we may not please all sides all the 
time, I am certain that I and the other members of the Board 
will discharge our specified legal duties honestly and 
conscientiously. Specifically, we will be dedicated to ensuring 
that privacy and civil liberties implications and concerns are 
identified, understood, communicated, and appropriately 
considered as the executive branch develops and implements 
policies and practices to fight the war against terrorism.
    To that end, if confirmed, I will make the personal 
commitment to assure that the views of the Privacy and Civil 
Liberties Oversight Board are informed and credited within the 
executive branch, and useful to the President and the relevant 
department and agency heads. We will also report candidly to 
Congress, as required by law, and consult meaningfully with 
civil libertarians and other patriots inside and outside of 
Government, who are interested in sharing their views, 
suggestions and concerns with us.
    In the first and final analysis, if confirmed, I, and the 
other members of the Board I am sure, will be governed by the 
opening text in our great Constitution, where the people 
established our noble system of Government to, quote, ``ensure 
domestic tranquility, provide for the common defense,'' and 
most germane for our Board, ``secure the blessings of liberty 
to ourselves and our posterity.''
    Thank you for honoring me with your consideration of my 
nomination.
    [The biographical information of Mr. Raul follows.] 



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    Senator Cornyn. Thank you, Mr. Raul, and thanks to you, Ms. 
Dinkins, for both bringing members of your family here with 
you. This is, I know, a proud moment for them as well.
    Let me ask you, please, to stand so I can administer the 
oath to both of you.
    Do you swear that in your testimony before the Committee, 
you will tell the truth, the whole truth and nothing but the 
truth, so help you God?
    Mr. Raul. I do.
    Ms. Dinkins. I do.
    Senator Cornyn. Thank you. Please have a seat.
    I guess one of the big challenges that this Board has is 
being a new board and being really not a lot of guidance, I 
guess, for exactly how you are supposed to carry out your 
functions. I would be interested in hearing from each of you 
how you intend to proceed, if only maybe in general terms right 
now, if you are confirmed to this position. How do you see 
getting started, Ms. Dinkins?
    Ms. Dinkins. Thank you, Mr. Chairman. It will be quite a 
challenge given that the Board does not currently exist and it 
is brand new. As I said earlier, our first order of business 
will be to engage an Executive Director. We will then evaluate 
what other types of people we might need to staff the 
functioning of the Board, and seek additional resources from 
the various departments through detailees, for example.
    Once we have an Executive Director and office space, to 
speak very practically, then the Board will begin to identify 
who we would want to reach out to and speak with about what 
their views are regarding the things that the Board should be 
looking at and delving into. And we will use that to guide us 
in setting our agenda, and more importantly, within the agenda, 
to set priorities.
    That's very general, but other than that, we'll be guided 
by what is in our statutory mandate.
    Senator Cornyn. Mr. Raul, do you have any other thoughts?
    Mr. Raul. Well, I agree with Ms. Dinkins that we will seek 
to reach out and be educated by the views of the people, both 
inside and outside the Government, the Executive Branch and in 
the Congress, to learn from people who have been following this 
issue and very concerned about it for a long time. So we'd like 
to hear from people who are interested in sharing their 
thoughts with us. Obviously, we'll convene as a Board, the five 
of us, to determine initial priorities and so on, but as Ms. 
Dinkins indicated, finding an Executive Director, getting the 
logistics of getting an organization in place will be, will 
have to be a top priority.
    Senator Cornyn. As I said, the statute is not really 
expansive about exactly how you are supposed to function, but 
it does say that the role of the Board is to advise counsel and 
oversee the Executive Department's development and 
implementation of policy, including reviewing proposed 
regulations and executive branch policies in the area of 
terrorism prevention and so forth, reviewing the implementation 
of laws, regulations and executive branch policies related to 
terrorism prevention, including the implementation of 
information-sharing guidelines under Sections (d) and (f) of 
Section 1016 of the National Intelligence Reform Act, and then 
to advise the President and department and agency heads, to 
ensure that privacy and civil liberties are appropriately 
considered in the development and implementation of such 
regulations and Executive Branch policies.
    It is my impression that some people feel that this is a 
zero-sum game, Ms. Dinkins, between national security and 
terrorism prevention on one hand, and civil liberties and 
privacy rights on another. How do you see it?
    Ms. Dinkins. Both of those are of fundamental importance to 
our way of life and to our future. We must protect the country 
from those who would destroy us and destroy our people and our 
culture, but on the other hand, we can't give up or give short 
shrift to what makes this such a special Nation, and we must 
protect our privacy and our civil liberties.
    And these are things that require careful balancing, things 
that require a great deal of back and forth to make sure that 
the tension is properly resolved so that we do not sacrifice 
our civil liberties while we are fighting those who wish to 
destroy us. I don't think that it's an easy tension, but it's 
one that we must grapple with and we must come out on the right 
side of it.
    Senator Cornyn. I know as we have debated the PATRIOT Act--
I was not here when that was passed and signed by the 
President, but I have been here during the debate since that 
time, and aware of the fact that the PATRIOT Act has been 
condemned, I guess, by the resolution of, I think, over 300 
different municipal governments. Now, it is a matter of 
curiosity to me why city councils and mayors would be passing 
resolutions condemning the PATRIOT Act, particularly in light 
of the fact that it has been so important, particularly in 
terms of information sharing, in terms of making sure that our 
intelligence and law enforcement authorities have the tools 
they need in order to root out terrorist activity, and to keep 
us safe.
    I say that just because it has always struck me that this 
is an area where there is a lot of misinformation, you might 
even say disinformation, and perhaps the best thing you could 
say is it is an area where people just do not know s much as 
they probably would need to know in order to make good 
decisions about this balance.
    I am curious, Mr. Raul, do you happen to know, will the 
Board be privy to classified information and be given an 
opportunity, in evaluating privacy and civil liberty concerns, 
to be able to weight that in the balance with concerns about 
threats?
    Mr. Raul. Yes, Mr. Chairman. The statute establishing the 
Board is very clear that the members of the Board are to be 
provided with security clearances, specifically for the purpose 
of allowing us, if confirmed, to have information that will let 
us balance these issues in an informed way. We need to have, 
and I believe the statute contemplates that we will have, 
access to information so that we can advise the President, 
department heads and agency heads, and make our report to 
Congress. And the statute says ``in an unclassified fashion to 
the greatest extent possible,'' thereby contemplating that 
portions of it might remain classified.
    But I believe that it was the intention in establishing the 
Board that we would have the clearances that are necessary and 
commensurate with the type of information that we will need to 
balance the issues between fighting the war on terrorism while 
ensuring that civil liberties concerns are considered as we do 
that.
    Senator Cornyn. I think that is very important, because as 
our own history shows us, the more people feel threatened by 
whether it is terrorism or by enemies of this country, the more 
perhaps we are willing to accept in terms of loss of privacy 
rights. I think people do have to strike a balance, and that 
will be important information for you to have, I think, as you 
go through this job, and as you review these rules and 
regulations, and as you advise the President and other 
agencies.
    I also think you could perform an important role for the 
President by, as you said, by reaching out to various 
organizations that do have concerns in these areas, and I think 
part of that is going to be not only listening to their 
concerns, but perhaps helping them to understand what the facts 
are because this is an area that can be very emotional, and 
sometimes disputes can be resolved by pointing out the facts or 
correcting misimpressions or misapprehensions about exactly 
what Congress and the Federal Government is about.
    I know you will not be too surprised that I do not have a 
lot more for you, and actually it may turn out to be fortuitous 
that we do have votes now, but I think at this point what I 
will do is we are going to leave the record open so that any 
member of the Committee can ask any additional questions they 
may have of you in writing, and we will leave that record open 
until 5 p.m. on Tuesday, November the 15th, for that purpose.
    What we are going to do, after a little consultation with 
staff here, we are going to recess the hearing, and we have two 
votes so it may be a few minutes, maybe 30 minutes or so, and 
then we will come back.
    I am actually through with the questions I had of you, but 
Senator Feingold, I understand, will be coming, and either he 
will reconvene the hearing and ask those questions, or I will 
be back for that purpose.
    But thank you for being understanding about our crazy 
schedule around here. Thank you for your willingness to serve.
    We will recess the hearing at this time.
    [Recess from 2:56 p.m. until 3:32 p.m.]
    Senator Cornyn. One thing I neglected to do is to give you 
each a chance to introduce your family members that are here 
with you. I had a chance to meet them informally, but, Ms. 
Dinkins, would you care to introduce your family for the 
record?
    Ms. Dinkins. Yes, thank you so much. Mr. Chairman, may I 
please present my husband, Bob Brown.
    Senator Cornyn. Congratulations, nice to see you.
    Mr. Raul, I know you have several members of your family 
here with you.
    Mr. Raul. Yes, I have a nice cohort here. Thank you, Mr. 
Chairman.
    I have my wife, Mary Tinsley Raul, and my daughter 
Caroline, my son, William, and my son, Alexander, and I also 
have my sister-in-law, Sarah Tinsley Demarest.
    Senator Cornyn. That is great. Well, welcome to all of you, 
and thank you for being here and being so supportive of your 
spouse, and father and brother, excuse me.
    Senator Feingold had said he wanted to come over and ask a 
few questions, but unfortunately, he is otherwise committed, so 
he is going to submit those questions in writing, like other 
members of the Committee. There may be additional questions 
that you will be asked to answer. Those will be submitted no 
later than 5 o'clock, next Tuesday.
    With that, the hearing is adjourned.
    [Whereupon, at 3:33 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]


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