[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]





                       U.S. DEPARTMENT OF JUSTICE

=======================================================================

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 23, 2008

                               __________

                           Serial No. 110-197

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov




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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
ROBERT WEXLER, Florida               RIC KELLER, Florida
LINDA T. SANCHEZ, California         DARRELL ISSA, California
STEVE COHEN, Tennessee               MIKE PENCE, Indiana
HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio                   STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota

            Perry Apelbaum, Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel















                            C O N T E N T S

                              ----------                              

                             JULY 23, 2008

                                                                   Page

                           OPENING STATEMENTS

The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Chairman, Committee on the 
  Judiciary......................................................     1
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Ranking Member, Committee on the Judiciary.     2

                               WITNESSES

The Honorable Michael B. Mukasey, Attorney General of the United 
  States, U.S. Department of Justice
  Oral Testimony.................................................     4
  Prepared Statement.............................................     6

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas, and Member, 
  Committee on the Judiciary.....................................   118
Prepared Statement and Questions of the Honorable Maxine Waters, 
  a Representative in Congress from the State of California, and 
  Member, Committee on the Judiciary.............................   139
Letters to the Honorable Michael B. Mukasey, Attorney General of 
  the United States, U.S. Department of Justice, from the 
  Honorable John Conyers, Jr., a Representative in Congress from 
  the State of Michigan, and Chairman, Committee on the Judiciary   145
Letter to the Honorable Michael B. Mukasey, Attorney General of 
  the United States, U.S. Department of Justice, from the 
  Honorable Sheila Jackson Lee, a Representative in Congress from 
  the State of Texas, and Member, Committee on the Judiciary.....   152
Post-Hearing Questions posed by the Honorable Maxine Waters, a 
  Representative in Congress from the State of California, and 
  Member, Committee on the Judiciary; and the Honorable Lamar 
  Smith, a Representative in Congress from the State of Texas, 
  and Ranking Member, Committee on the Judiciary.................   154

 
                       U.S. DEPARTMENT OF JUSTICE

                              ----------                              


                        WEDNESDAY, JULY 23, 2008

                          House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Committee met, pursuant to notice, at 10:24 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable John 
Conyers, Jr. (Chairman of the Committee) presiding.
    Present: Representatives Conyers, Nadler, Scott, Watt, 
Lofgren, Jackson Lee, Waters, Delahunt, Wexler, Sanchez, Cohen, 
Sutton, Sherman, Schiff, Davis, Wasserman Schultz, Ellison, 
Smith, Coble, Gallegly, Goodlatte, Lungren, Cannon, Keller, 
Issa, Pence, Forbes, King, Feeney, Franks, and Gohmert.
    Staff Present: Elliot Mincberg, Majority Chief Oversight 
Counsel; Robert Reed, Majority Oversight Counsel; Renata 
Strause, Majority Staff Assistant; and Crystal Jezierski, 
Minority Counsel.
    Mr. Conyers. The Committee will come to order. We have 
before us the Attorney General of the United States, and 
perhaps for the last time in the 110th session. His 
responsibility is that of enforcing our Federal criminal laws, 
protecting voting rights, protecting us against foreign and 
domestic terrorism, enforcing the antitrust laws, the 
bankruptcy laws, the intellectual property laws, and 
immigration laws, as well as representing the Government in 
civil cases.
    First, and perhaps most important, I believe we have not 
seen enough cooperation concerning voting rights. The regular 
meetings on voting rights that I thought would happen between 
the Judiciary staff, bipartisan in nature, and the Department 
of Justice staff, have not happened and have not been effected.
    As we sit here today, probably a hundred days before the 
election, we don't know specifically how our Government will 
respond to the practices that made the elections of 2000 and 
2004 so problematical and so controversial, how we will respond 
to deceptive electioneering practices. Now this is the highest 
order of responsibility between the Department of Justice and 
the Judiciary Committee because we are going to be responsible, 
not just the outgoing Attorney General and the Department of 
Justice, but the House Judiciary Committee is going to be held 
accountable for what we did or didn't do in trying to make sure 
that many of the deceptive electioneering practices are stopped 
and not just punished after the fact but that we do something 
about it preemptively. How can we ensure voting machines are 
fairly allocated, how monitors will be deployed, how we will 
respond to voter caging schemes, and avoid some of the terrible 
mishaps of 2000 and 2004.
    In addition to the serious problems in those elections, we 
have seen numerous other voting problems, the approval of 
troubling redistricting plans in Texas and Georgia.
    This Committee and everyone on it has responsibility for 
these 2008 elections. We have a hearing on voter rights and the 
2008 election tomorrow. The Department of Justice, to this 
moment, doesn't have anybody committed to coming to that 
hearing. Chris Coates, the head of the Voting Section, hasn't 
agreed to come before us. We are hoping that that can be 
remedied between now and tomorrow.
    Now we have been trying to get key members of the Bush 
administration before us. They have refused. Harriet Miers and 
Josh Bolton have refused to cooperate in the contempt 
proceedings. And why? Because the Department of Justice 
publicly has said they are not going to enforce a subpoena 
against these, the President's lawyer and the President's Chief 
of Staff.
    This Department, Department of Justice, continues to 
validate the unprecedented concept of total immunity for high 
ranking officials. For example, Karl Rove. Last week, they 
oddly argued that non-grand jury statements given to Federal 
prosecutors were somehow privileged when it came to Congress.
    We have been waiting months and months to obtain critical 
documents relating to the selective prosecution, obstruction of 
justice, the secret OLC opinions advocating expansive theories 
of presidential power that strike at the very core of our 
constitutional freedoms. With less than a hundred or so days 
remaining before the election and 6 months before the 
Administration ends, this delay is unacceptable.
    I am sorry to say that the Attorney General has continued 
the unfortunate tradition of refusing to appoint a single 
special prosecutor for any of the evidences of misconduct that 
would require the Department of Justice to bring in outside 
counsel.
    Every Member of this Committee wants the Attorney General 
and this Department to perform its mission fully, and it is 
more important now than ever before with the world getting 
smaller, the global considerations, the military actions that 
still go on. I hope that we are going to be able to conclude 
our relationship, Mr. Attorney General, in a way that we get 
some of these matters resolved and not that they were left 
hanging as we brought the 110th session to an end.
    We have got a big need for a lot of information, and I am 
hoping that today will lay the groundwork for us to begin to 
accomplish as much of this as is possible.
    I now recognize the Ranking Member, Lamar Smith, for his 
comments.
    Mr. Smith. Thank you, Mr. Chairman. Attorney General 
Mukasey, thank you for appearing before the Committee for the 
second time, perhaps for the last time in this Administration, 
to discuss the important work of the Department of Justice. We 
appreciate your doing so.
    Mr. Chairman, there are many important subjects the 
Committee could focus on in its oversight efforts today. For 
example, we could make this a very productive hearing by having 
this Committee take immediate action to address habeas corpus 
concerns following the Supreme Court's recent ruling of 
Boumediene v. Bush. On Monday, the Attorney General outlined 
the significant problems law enforcement officials now face as 
a result of that ruling. It is now the responsibility of this 
Committee to act.
    In its decision, the Supreme Court opened a Pandora's Box 
and the Attorney General has made it clear that only Congress 
can close the lid by enacting clear rules regarding the 
detention of known terrorists. If this Committee fails to act, 
Federal courts may order the Government to release known 
terrorists. There are more than 200 detainees remaining at 
Guantanamo Bay, and many of them wish to kill as many innocent 
Americans as possible. If this Committee fails to act, 
sensitive intelligence on terrorists may be disclosed and 
terrorists will know better how to evade detection and conceal 
future plots. If this Committee fails to act, known foreign 
terrorists will be able to forum shop in the most favorable 
places to bring their claims, both in the Federal district 
courts and in the Court of Appeals for the D.C. Circuit, in a 
way even domestic American criminals cannot.
    The Attorney General has told us what common sense tells 
us, we must commit ourselves to the development of a 
legislative proposal that provides clear guidance on the 
detention of known terrorists. We must act. We must act 
responsibly, and we must act quickly.
    Another area where Congress can assist the Department is in 
protecting America's children from sexual predators and cyber 
criminals. Nameless, faceless criminals use the World Wide Web 
as their virtual hunting ground. Child exploitation, child 
pornography and cyber bullying are just a few of the 21st 
century crimes threatening our children today.
    A simple step Congress can take to enhance our crime 
fighting efforts is to require the retention of certain 
subscriber records by Internet providers. This Committee must 
pursue this and other innovations if we have any hope of 
keeping pace with crime in the cyber age.
    One of the areas where there already is bipartisan 
agreement is in confronting and deterring criminal activity in 
the arena of intellectual property theft. We should help 
advance the legislative efforts of this Committee, including 
the Prioritizing and Organization for Intellectual Property Act 
of 2008, which passed the House overwhelmingly in May, to 
enhance IP enforcement efforts.
    Also, I am pleased with the Department's recent work to 
support DHS immigration enforcement efforts by increasing 
prosecutions and available prison bed space. For too many 
years, illegal immigrants knew that they faced absolutely no 
penalty if they were apprehended along the southern border, 
other than a quick bus ride back across that border. They had 
every reason to try to enter again and again until they 
eventually succeeded, as 90 percent of them did.
    The Justice Department's Operation Streamline for the first 
time has put an end to this revolving door. We have too much at 
stake to shy away from enforcing the law and ensuring that 
individuals entering the U.S. do so illegally.
    Mr. Attorney General, I appreciate the tireless dedication 
to the men and women of the Justice Department, and look 
forward to working together with you to keeping Americans safer 
in the future.
    I yield back.
    Mr. King. Mr. Chairman, would you yield to a brief 
colloquy?
    Mr. Conyers. Absolutely not.
    The Attorney General brings a long, distinguished 
background to the Department of Justice. He has been a 
practicing attorney, a Federal prosecutor, a member of the firm 
of Patterson, et al., a trial judge since 1988, and was 
appointed by President Reagan as a trial judge for 18 years; 6 
of those were as Chief Judge of the District. He retired in 
2006, was called back by President Bush, confirmed as the 
Attorney General in the fall of 2007.
    We have your statement, sir, and it will be put in the 
record in its entirety, and all the Members will have an 
opportunity to add their own opening statements to welcome you 
here. Thank you so much.

TESTIMONY OF THE HONORABLE MICHAEL B. MUKASEY, ATTORNEY GENERAL 
        OF THE UNITED STATES, U.S. DEPARTMENT OF JUSTICE

    Mr. Mukasey. Chairman Conyers, Ranking Member Smith, and 
Members of the Committee, I thank you for the opportunity to 
testify here today. Since I appeared before this Committee 
almost 6 months ago, I have become even better acquainted with 
the talented and dedicated professionals at the Justice 
Department and with the work that they do, and have come to 
appreciate that much more deeply, their service to our Nation.
    I have now been Attorney General for slightly more than 8 
months. During that time, there have been moments of 
disagreement with Members of the Committee, as there always 
will be. There are policy initiatives that the Department 
supports, that some Members vigorously oppose, and policy 
initiatives that some of you support, that the Department 
opposes.
    There are also situations where the interests of the 
executive branch and of the legislature are on tension. This is 
not, as some people have suggested, evidence of a broken or a 
flawed political system. It is part of the genius of the design 
of our Constitution, which embodies a robust separation of 
powers. Although these tensions will never disappear, there are 
many areas of agreement in which we can work together on behalf 
of our common clients, the American people.
    I would like to outline briefly two areas that I will focus 
on during the 6 months remaining in this Administration. First, 
with the first post-2001 transition looming, we must take every 
step to ensure that custody and responsibility for our Nation's 
security is transferred smoothly to a new set of caretakers. 
That means putting national security measures on a sound 
institutional footing so that the next Attorney General and the 
new Administration will have in place what they need to 
continue to assure the Nation's safety.
    Two weeks ago, Congress took a vital step in passing the 
FISA Amendments Act of 2008, bipartisan legislation that will 
give our intelligence professionals critical long-term 
authorities to monitor foreign intelligence targets located 
overseas.
    Earlier this week, I called upon Congress to take another 
step by passing legislation to address the questions about 
detainees unresolved by the Supreme Court's recent decision in 
Boumediene v. Bush. Congress and the executive branch are in a 
far better position than the courts to create practical 
procedures and rules to govern the habeas hearings required by 
the Supreme Court, procedures and rules that would both give 
the detainees what they are due, what process they are due, and 
accommodate the grave national security concerns involved.
    In my speech earlier this week I outlined six principles 
that should guide such legislation, and I look forward to 
working with you and your colleagues on both sides of the aisle 
and in both Houses of Congress to address these important 
issues promptly.
    Second, as everyone knows, the election season is upon us. 
Although State and local governments have primary 
responsibility for administering elections, the Justice 
Department must make every effort to help assure that the 
elections run as smoothly as possible and, equally important, 
that the American people have confidence in the electoral 
process.
    The Department will maintain a significant presence 
throughout the election season through both outreach and 
monitoring. We will work closely with civil rights group and 
State and local officials to identify and solve problems. We 
will publicize telephone numbers and Web sites through which 
people can bring potential issues to our attention, and on 
election day we will deploy hundreds of observers and monitors 
around the country.
    These steps will supplement our ongoing efforts both to 
enforce laws, including the Voting Rights Act, designed to 
guarantee access of all Americans to the ballot, and to enforce 
laws, including those prohibiting voter fraud and campaign 
finance abuse intended to safeguard the integrity of the voting 
process.
    All these efforts are essential in ensuring elections 
reflect the will of the people and in maintaining the 
confidence of all Americans in our system of Government. In all 
of this we will be driven by what the law and the facts 
require, and only by that.
    In fact, I have said many times both to members of the 
public and to Department employees, that we must pursue all of 
our cases in that manner. I have also said many times that we 
must hire our career people without regard for improper 
political considerations. I have acted and I will continue to 
act to ensure that those words are translated into reality.
    I am well aware of the allegations that politics has played 
an inappropriate role at the Justice Department. Too many of 
those allegations were borne out in a recent report by the 
Department's Offices of Inspector General and Professional 
Responsibility on hiring for the Honors Program and for the 
Summer Law Intern Program. Even before I became Attorney 
General last fall, however, the Justice Department had taken 
many significant steps to remedy the problems that existed. I 
have since taken several additional steps, and we will continue 
to take any and all steps that are warranted. It is absolutely 
crucial that the American people have complete confidence in 
the propriety of what we do, and I will work to make certain 
that they can have such confidence.
    Mr. Chairman and Members of the Committee, I thank you for 
the opportunity to make these remarks and I look forward to 
answering your questions. Thank you very much.
    [The prepared statement of Mr. Mukasey follows:]
         Prepared Statement of the Honorable Michael B. Mukasey





    Mr. Conyers. The Chair recognizes the Chairman of the 
Subcommittee on the Constitution, Jerry Nadler of New York.
    Mr. Mukasey. Mr. Chairman, I don't mean to raise a matter 
that is none of my business, but I haven't been placed under 
oath. Did you want me to take an oath?
    Mr. Conyers. No, I did not require that.
    Mr. Nadler.
    Mr. Nadler. Thank you, Mr. Chairman. I have a number of 
questions, and I hope we can be brief. The first one is: When 
you last appeared before this Committee, sir, you stated that 
you could not order an investigation into interrogation 
practices that have been authorized by the OLC opinions because 
it would not be fair to infer any possibility of criminal 
intent to someone who is following an OLC legal opinion. But it 
is now clear that one of the detainees, Abu Zubaydah, for 
example, was interrogated for months in the spring and summer 
of 2002, before the first OLC opinion and the issue we know of, 
the August 1, 2002, legal memo by John Yoo was issued.
    Attorney General Ashcroft testified last week he did not 
recall providing legal advice on interrogation methods at that 
time and did not recall whether anyone else at the Department 
had provided such advice. Now given the uncertainty about 
whether any legal advice had been provided before these 
interrogations, have you or anyone at the Department 
investigated the legality of the interrogation methods used 
before the August 1 Yoo memo was issued?
    Mr. Mukasey. I have not investigated that myself. I think 
part of that question involves whether the methods employed 
were consistent with that memo or not, and I don't know whether 
they were or they were not.
    Mr. Nadler. Do you think someone should take a look at 
that?
    Mr. Mukasey. I think a look at that may very well be taken 
or have been taken. I am not specifically aware of it as I sit 
here.
    Mr. Nadler. Can you let us know?
    Mr. Mukasey. I will take a look.
    Mr. Nadler. Thank you.
    Now one other thing. The Committee has issued a subpoena 
for all unclassified OLC opinions on issues of national 
security and presidential power that have not previously been 
released. The Department has refused to provide these 
unclassified opinions to the Congress. Can you tell us why we 
can't get those unclassified opinions?
    Mr. Mukasey. Without getting into any particular opinions, 
there are two considerations that relate to OLC opinions. One 
has to do with classification. Unclassified opinions. OLC 
opinions are there because somebody has come to the Department 
for advice. They have come to the Department for advice before 
they act. Part of maintaining a deliberative process is being 
able to assure them that they can come to the Department, ask 
for advice, and get it without----
    Mr. Nadler. Excuse me. That is in effect a claim of 
executive privilege. That is the executive privilege.
    Mr. Mukasey. It is not really the executive privilege. It 
is a deliberative privilege, if you wish to call it that.
    Mr. Nadler. So you are asserting a new privilege other than 
executive privilege?
    Mr. Mukasey. I am not asserting a new privilege. I am 
explaining that deliberative process is part of what you may 
call executive privilege, what I think is actually something 
separate, but in any event is one of the kinds of information 
that is protected from inquiry on the outside, and for good 
reason.
    Mr. Nadler. Whatever the good reason, and I don't want to 
debate the reason, but if it is not protected against a 
subpoena by executive privilege, what is the legal authority 
for not giving it to Congress once subpoenaed?
    Mr. Mukasey. I believe that we are authorized to keep in 
confidence requests for advice and the advice that we give as 
counsel as part of a deliberative privilege, as part of 
essentially an attorney-client relationship, and for other good 
sound reasons that I am sure you can understand. We want people 
to come for advice. We don't want them to act without it.
    Mr. Nadler. I understand the reasoning. I do not agree, and 
I would ask you to provide to this Committee, the legal 
authority. I do not agree that there is any privilege other 
than executive privilege. The executive privilege must be 
claimed by the President. The President is not the client of 
the Attorney General, he is the client of his own counsel. The 
Government is, the American people is the client of the 
Department of Justice. So I do not see any ground for 
withholding the subpoena.
    Let me go on. I ask you to provide the Committee with the 
legal basis for this.
    Mr. Mukasey. Basis additional to the basis I have already 
articulated?
    Mr. Nadler. With some citations.
    We know many States now, going back to the Chairman's 
comment, are preparing a purge list of voters, list of people 
who shouldn't be allowed to vote because pursuant to the laws 
in the States they are felons or whatever. We also know that in 
Florida, for example, in 2000, such a list was prepared by a 
commercial vendor. We know that there was a 20 percent error 
rate. We know that they knew there was a 20 percent error rate, 
which means they knew one out of five people prevented from 
voting would be legitimate.
    What is the Department doing to oversee to make sure that 
States cannot do that again; that the purge lists that are 
being prepared do not disenfranchise many legally eligible 
voters?
    Mr. Mukasey. Very broadly and then very narrowly. The 
Department has been working with State and local authorities to 
make sure that they conform with the requirements of all 
Federal voting laws and that they conduct their activities in a 
responsible way. That said, there is always available, and we 
are making certain of this, the alternative for everyone one 
who feels that he or she has been improperly denied the right 
to vote, challenged in trying to exercise the right to vote, to 
nonetheless cast a provisional ballot, and we are making 
certain that people are aware of that.
    We are doing outreach to civil rights groups to make 
certain that people are aware of that because that is, as it 
were, a failsafe against the kind of practice that you just 
described. I don't know whether it happened, I don't know what 
the source of that is, but assuming that happened, that is the 
ultimate failsafe.
    We have been in communication with State and local 
authorities and we have an extensive training program from our 
own people to make sure that doesn't happen again, if in fact 
it happened.
    Mr. Nadler. Thank you. I see my time will expire. The 
Chairman will admonish me shortly.
    Mr. Conyers. Lamar Smith.
    Mr. Smith. I have a couple of questions about the 
Boumediene v. Bush Supreme Court case. When the Supreme Court 
issued its ruling, Judge Lamberth, the chief judge of the 
Federal District Court in D.C., took the unusual step of 
issuing a news release saying that he hoped Congress would 
respond and address some of the questions raised by that case 
sooner rather than later.
    My question is: Do you feel that it is urgent that Congress 
act quickly to address some of the questions raised by that 
case?
    Mr. Mukasey. I do feel that it is urgent. Actually, he 
issued the statement after the speech I issued urging 
legislation. I do feel that it is urgent. I outlined reasons in 
a 20 or 25-minute speech why it was urgent, and urged that six 
principles inform any legislation. But I was not drafting 
legislation. What I was urging was that Congress step up and do 
it.
    Mr. Smith. What are some of the unintended consequences of 
that ruling? Why is there a sense of urgency? Without getting 
into the principles, but what are the risks involved?
    Mr. Mukasey. The ultimate risk is--because the ultimate 
decision finder has to be able to direct release, the ultimate 
risk is that one of these folks could be released in the United 
States and that is something that we think has to be prevented.
    Secondly, there is a matter of national security. Much of 
the evidence against the people at Guantanamo, both those 
charged with war crimes and those we are simply holding because 
they are detainees, comes from classified information. We need 
to protect how that information is used, who has access to it, 
and who doesn't.
    Third, there are--as I said, some of them are going to be 
put on trial for war crimes and we have to make sure that 
habeas proceedings are not used as a way of delaying the onset 
of military commission trials, any more than a United States 
defendant charged with a crime has a right to file a habeas 
proceeding before his trial. No U.S. defendant has that right. 
We don't think these folks should be given that right.
    We think that Congress should reaffirm that we are in fact 
involved in an armed conflict and that there is a right to 
detain enemy detainees. There is a separate question of whether 
those people are guilty of war crimes or not. That is a whole 
separate thing. But detention is an absolute, and it is 
something that there has to be firm authority for. We think 
there is, but we think it wouldn't hurt to reaffirm that.
    Congress, I think, should establish sensible streamlined 
procedures that strike a reasonable balance between a 
detainee's rights to information and to present a case, which 
the Court said he had to have, as well as practicality. The 
word ``practical'' appeared numerous times in the Supreme Court 
decision. But they stopped far short of articulating the exact 
procedure that should apply.
    Finally, we asked that Congress make sure that detainees 
could not pursue remedies other than habeas corpus. As it 
stands now, they have kind of a two-track system. They have 
what are called the CSRTs, the Combatant Status Review 
Tribunals, and review of those in the D.C. Circuit, and then 
they have the habeas petitions. We think in view of the 
requirement of habeas, that the CSRT system and appeal to the 
D.C. Circuit should be cut off completely and simply rely on 
habeas proceedings that are properly cabined in the way I have 
suggested. That is a rough outline.
    Mr. Smith. Thank you, Mr. Attorney General. Let me go back 
to your first two points. The first was that some of these 
individuals might be released. As I understand it, there are 
some known terrorists that are now being held at Guantanamo 
Bay. Are you saying if we don't act expeditiously that some of 
those terrorists might be released?
    Mr. Mukasey. There is always that possibility. So far it 
obviously hasn't happened, and so far I want to commend the 
D.C. District Court for the preliminary steps that it has 
taken, including having by and large one judge, although there 
are one or two other judges who are going ahead, but one judge 
principally organizing things procedurally so they proceed in 
an orderly way.
    But if somebody decides they want to bring somebody here 
either to testify on his own or in somebody else's proceeding, 
there are additional rights that that person has simply by 
virtue of landing on American soil, and recall that these are 
all aliens. None of them has a right to be here. We don't want 
that to happen inadvertently and then have the outcome of a 
habeas petition be that somebody has to be released, and if he 
is on American soil, he gets released here. That we think would 
be the worst outcome, and we are trying to avoid that, and we 
think it can be avoided with legislation.
    Mr. Smith. Thank you, Mr. Attorney General. Thank you, Mr. 
Chairman.
    Mr. Conyers. The Chairman of the Crime Subcommittee, Bobby 
Scott.
    Mr. Scott. Thank you, Mr. Chairman, and thank you, Mr. 
Attorney General, for being with us today. I had a couple of 
questions in the area of the criminal justice system. First, in 
reference to the housing crisis, it appears to me that with the 
billions of dollars that has been lost, somebody has made a lot 
of money to a large extent, in my opinion, through criminal 
fraud. We are going to try to get a briefing from the Justice 
Department on this in detail. But could you just say a quick 
word about whether or not in your view crimes were committed 
that helped perpetuate the crisis that we are in?
    Mr. Mukasey. Without wishing to convict anybody before 
trial, we have so far charged more than 400 defendants in 
connection with the mortgage crisis that you mentioned, ranging 
up the scale from the people who are overvaluing houses, the 
people who are over-assessing houses, the banks that are 
purposely closing their eyes to that, the rating agencies, up 
to two promoters of a hedge fund who are charged with 
essentially criminally overlooking the fact that the paper they 
were selling the public was worthless.
    There are 42 separate FBI task forces devoted to fighting 
that problem, but it is a problem that runs the gamut that I 
tried to describe. We have got over 400 defendants charged so 
far, and the investigation is certainly by no means closed. It 
is in full pace.
    Mr. Scott. Thank you. Another issue here, there are several 
bills pending with the problem of gangs. One I have introduced 
takes a proactive approach to try to keep young people out of 
trouble to begin with. Other legislation essentially, in my 
judgment, waits for young people to join a gang, mess up, get 
caught, and get over charged with crimes. We already lock up 
more people in the United States than anywhere else on earth. 
My question is: Your Web site actually, the Department of 
Justice Web site, sites under the category of what works many 
approaches that seem to be consistent with the Youth Promise 
Act that I have introduced. We don't have time now, but could 
you provide in writing any analysis that you may have done on 
what works and what doesn't work and how we ought to be 
addressing this, and any analysis or help you might have to do 
as we evaluate the different approaches?
    Mr. Mukasey. I think what works is a comprehensive 
approach. There is no one particular solution. What we try to 
do is to focus our efforts along with State and local 
governments, along with other agencies in both enforcement; 
that is, we use the task force approach to enforcement and we 
also use weed and seed programs and other community outreach 
programs.
    I was just present last night at a privately funded 
competition, essay competition that was competed in by more 
than 120,000 youngsters on the subject of community violence. 
We are active in that. We help fund that. So we believe firmly 
that this requires a comprehensive approach. In the end, we are 
principally a law enforcement organization. But we do recognize 
the need for a comprehensive approach. We favor that. We do 
prevention.
    Mr. Scott. If you have done any in-depth analysis and can 
provide guidance on that, that would be helpful.
    My next question is with regard to the Federal prisons. We 
recently had to appropriate money in a supplemental 
appropriation to deal with what we believe to be a crisis in 
personnel in prisons. The prison industry program, Federal 
prison industry program, has been widely supported by virtually 
all Federal prison personnel. Can you explain why the 
Department of Justice hasn't been more aggressive in promoting 
the program in Congress, opposing efforts to weaken the 
program, and if you could say something about the staffing 
levels generally because there is some concern that the 
staffing levels are so low now that our prison guards may be in 
danger.
    Mr. Mukasey. Well, I think I am not supposed to express 
relief at a supplemental that is in excess of what was 
originally requested, but privately in the privacy of this room 
I am satisfied that there was a supplemental, particularly with 
respect to the BOP, which took a major hit in connection with 
the budget, and I am glad and gratified to see that.
    With regard to Prison Industries, that is an important 
program not simply for the people who are in prison but rather 
as a way of controlling the population. As you know, those jobs 
are not only good training, they are valued by the prisoners 
themselves and they are an excellent control mechanism because 
loss of a job like that for infractions and for violence is a 
big risk. So giving that privilege of access to such a program 
and denial of it is a helpful way to control people in prison.
    It is not just for the good of the crooks, it is for the 
good of the guards, it is for the good of future victims who 
will not become future victims as a result of the fact that 
people learn valuable skills in that program.
    When I was a judge, I was a proponent of that program. I 
still am.
    Mr. Scott. Is there more danger to prison guards now 
because of the staffing level?
    Mr. Mukasey. We think that we have got the situation under 
control. But it is barely under control. The prison population 
recently has changed, and it hasn't changed for the better. 
People are getting more violent, they are not responsive to 
warning gunshots that are fired when they start riots, and so 
forth, and we have had an uptick in violence.
    So far, it has been under control. But a couple of weeks 
ago I went out to attend the funeral of a guard who was killed 
out in California with a shank, a young man who had served two 
tours in Iraq, come out of the Navy, was building a career for 
himself. He was 2 weeks short of his 23rd birthday. It was a 
tragic situation.
    That is the first time in a dozen years that a guard has 
been killed, but I want it to be the last time. I think we need 
to make greater efforts in that area. The fact is that the 
professionals in the Bureau of Prisons do an amazing job in the 
way they control those violent populations with a very small 
group of people. If you go into one of those institutions, it 
is remarkable how small the ratio is between guards and 
prisoners. But we need to do more in that area and we need to 
stop the kinds of incidences that I mentioned. We are concerned 
about them.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Conyers. Howard Coble, Ranking Member of the 
Intellectual Property Committee.
    Mr. Coble. Thank you, Mr. Chairman. General, good to have 
you on the Hill. The distinguished Ranking Member from Texas 
commented on intellectual property, and I want to direct your 
attention to that issue.
    General, as you know, this Committee has long sought to 
work with the Department to strengthen the ability of law 
enforcement to defer, investigate, and prosecute intellectual 
property related crimes. As you probably know, we 
overwhelmingly passed in the House earlier this year the bill 
prioritizing resources and organizations for intellectual 
property.
    Some years ago, a Department witness stated to this 
Committee that there are known links between IP crime and 
organized crime, and even terrorism. General, can you comment 
today on what evidence can be produced to link IP-related 
crimes with terrorist funding and any specific details to known 
links. Now it may be more appropriate to do that in writing. 
But could you do that?
    Mr. Mukasey. I can do it in a general way. The fact is that 
we are facing on an international level more and more organized 
crime and these folks will sell absolutely everything they can 
for as much as they can. One of the most valuable things that 
this country has is intellectual property. It is the engine 
that drives our economy. There are foreign governments that are 
intent on getting into that intellectual property and there are 
foreign nongovernments in the form of terrorist organizations 
that are interested in getting into that intellectual property 
so that they can exploit it not only for its inherent worth but 
also for its commercial worth.
    I will provide in writing further specific instances of 
that, but the fact is that everything from phony shoes and 
handbags, on up, has been offered for sale by people who are 
completely indiscriminate in who gets the proceeds as long as 
they make money along the way. That has included people who are 
involved in or suspected of terrorist activity.
    Mr. Coble. If you could present additional details, we 
would be appreciative.
    Mr. Mukasey. I will do that.
    Mr. Coble. Earlier this year, President Bush signed the 
Second Chance Act into law. This legislation had broad support 
and I believe is a new approach to an old but alarming problem. 
That is prison overcrowding.
    Have you had an opportunity to review or to be briefed on 
this legislation? Do you agree with me that it is a good first 
step addressing the skyrocketing problem of recidivism, 
particularly of nonviolent offenders?
    Mr. Mukasey. I agree that it is a good first step. The 
recidivism rate in Federal prisons is a good deal lower than 
the recidivism in all prisons, largely because we concern 
ourselves before people are released with putting them in 
programs that train them for release and with follow-up 
afterwards. And the Second Chance Act is an important part of 
that.
    We hope to lower the recidivism rate still further. We 
think that that kind of legislation and that kind of outlook is 
a good way toward solving the kind of problem that Member Scott 
pointed out before, that we should be working on prevention, 
prevention at both ends, rather than simply enforcement. 
Enforcement is an important part. That is what we do 
principally. But we can't lose sight of the fact that when 
prevention opportunities present themselves, as they do in that 
legislation, we have to follow up.
    Mr. Coble. I do concur. I do believe that prison 
overcrowding may be one of the most pressing domestic problems 
facing us, and I furthermore believe it is probably more 
serious involved in the local and State institutions.
    Mr. Mukasey. It is much more serious on the State level 
than it is on the Federal level. We avail ourselves not only of 
the facilities that we have, but also of rented space in State 
and local institutions and in some private institutions that 
run prisons, if you will, or detention facilities on a private 
basis when they are reviewed and approved for standards. So 
far, we have been able to hold up and do that. But so far is so 
far. We want to make sure that we have got enough resources to 
continue to do it.
    Mr. Coble. I thank you, General.
    Mr. Chairman, I want you to take note, I am beating the 
illumination of the red light.
    Mr. Conyers. You usually do. Thank you.
    The Chair recognizes the Chairman of the Oversight 
Committee of the Finance Committee, but a senior Member of 
Judiciary as well, Mel Watt of North Carolina.
    Mr. Watt. Thank you, Mr. Chairman.
    Mr. Attorney General, back on April 23 of this year, the 
Director of the FBI was before this Committee and I asked him 
about a particular referral that had been made and we finally 
got a response back from him just 2 days ago, really, in which 
he says this: Regarding the referral made to our Charlotte 
field office, we confirm that in October, 2006, the field 
office was forwarded a letter which the North Carolina State 
Bureau of Investigation received from State lawmakers 
requesting an investigation into Aero Contractors. The letter 
alleged that Aero Contractors has been identified as a 
participant in the CIA-sponsored rendition program, which has 
flown persons detained in various countries, including the 
United States, to overseas torture sites. We consulted with our 
field office and the Department of Justice and at this time we 
do not have an open investigation regarding the allegation.
    I have reviewed the jurisdiction of the various, I think 
there are 11 or 12 divisions under the Attorney General, and 
there is a National Security Division, there is a Criminal 
Division, and I guess my question is, first, would it be a 
violation of law for a contractor to fly persons detained to 
overseas torture sites?
    Mr. Mukasey. The country has enforced laws that require 
that before people are sent abroad we receive assurances from 
foreign governments that they will not be abused. That said, I 
am not familiar with either the case or the program that you 
refer to. As you point out, this correspondence goes back to 
2006, which is essentially 2 years before I got here.
    Mr. Watt. The concern I have is that I asked the FBI 
Director to give me all the information. We got one paragraph 
about it, and I still don't know anything more. We know a 
letter asking for an investigation was made. We know there is 
not a current active investigation. That is what the Director's 
letter says. But still we don't know what happened in the 
interim, whether they concluded that there was no basis for the 
investigation, whether the Department looked the other way, 
whether there is any--I don't even know whether you all think 
sending somebody out of the country for rendition to a torture 
site would be a violation of any law as it stands.
    Mr. Mukasey. I would like to take a look at the case before 
I comment on the case.
    Mr. Watt. If you would do that.
    Mr. Mukasey. One thing I have learned from past bitter 
experience.
    Mr. Watt. That is exactly what we asked the Director of the 
FBI to do. Unfortunately, when we got the response a number of 
months later, we don't know anything more, or very little more 
than I had told him. I mean I had told him that there was a 
referral but he wrote me a letter back confirming that there 
was a referral.
    Mr. Mukasey. Bob Mueller is a very diligent guy, but in 
this case I hope to be able to perform better and outdo him.
    Mr. Watt. I certainly appreciate that.
    Mr. Mukasey. He is a very able person.
    Mr. Watt. In addition, it would be nice to know if the 
Department thought that flying somebody out of the country, 
rendering them to a torture site, would be a violation of law. 
But I won't ask you for that opinion right now. But I hope you 
will include that.
    Mr. Mukasey. I will include that.
    Mr. Watt. One part of the voting process this year that a 
number of people are expressing concerns about because we 
believe there will be a voting pattern that will be 
substantially different than there has historically been, and 
one of the concerns we have is that nobody is really 
anticipating those demographic shifts in the voting patterns 
that we anticipate will happen. Does your task force that you 
have been working with the States on, is that part of what you 
are doing, and if not, will you include it to make sure that 
there are enough machines, enough personnel, enough trained 
people that know what they are doing to get people processed 
without standing in line for hours on end?
    Mr. Mukasey. The short answer to your question is yes. We 
anticipate a much higher turnout this year because of increased 
enrollment this year, as you point out, and we are doing what 
we can. We have to keep in mind as we do that that this effort 
is organized principally by State and local governments. What 
we need to do is to make sure that they realize and understand 
that where there is increased enrollment, they know it, and 
that they are doing what they can to get the facilities that 
they need to handle the increased enrollment and the increased 
turnout, if in fact there is increased turnout. That is what we 
are doing.
    We are trying to do everything we can, including to make 
information available not only to the State and local 
governments, but to particular groups with an interest in 
making sure that people turn out so that they know what the 
rules are and aren't and know what they can and can't do and 
police their State and local groups and make us aware of when 
there are shortcomings. It is kind of a two-way street.
    Mr. Watt. Thank you, Mr. Chairman. My time has expired. I 
yield back.
    Mr. Conyers. A senior Ranking Member of Judiciary from 
California, Elton Gallegly.
    Mr. Gallegly. Thank you very much, Mr. Chairman. Welcome, 
Attorney General Mukasey.
    Recently, during different debates we have had on 
immigration, we have found that the FBI does various forms of 
background checks, name checks, and so on and so forth, and 
there is a backlog. Can you tell us how the FBI has addressed 
the backlog and the name check or other background checks?
    Mr. Mukasey. They are addressing the backlog in the one way 
you can address it, which is by throwing more personnel at it. 
They have, I think, gotten it way down, I believe. I think it 
is down to something like 90 or 120 days. I am not precisely 
sure, but I think it is. I know it is way below what it was 
before. But we recognize that that was a problem. We are 
addressing it. And we understand it and they understand it and 
have put more people on it to make sure that they do the 
background checks.
    Mr. Gallegly. Is there currently a backlog in the criminal 
background check of legal aliens?
    Mr. Mukasey. There is currently some backlog across the 
board, be it criminal check, be it just check on background. 
This includes past criminal background.
    Mr. Gallegly. This may be a little more difficult but in 
recent months and actually recent years there has been a lot of 
discussion about comprehensive immigration reform. Some of us 
think that is a code word for amnesty. In the event that that 
should take place, and depending on who you talk with, I think 
most reasonable people would say this could account for about 
20 million people.
    Is it logistically possible to do a background check on 
that many people?
    Mr. Mukasey. Now? No. I mean, it is logistically possible, 
I suppose, over an extended period of time. But if you throw 20 
million more people into the system, is it going to stagger the 
system? Yes.
    Mr. Gallegly. I think that was probably a rhetorical 
question.
    In any event, one other question I have relating to 
immigration. In fact, I met with a former Attorney General in a 
previous Administration several years ago and was discussing 
the issue of sponsorship of legal aliens. When you have an 
immigrant coming into the country and they have a sponsor, they 
sign a statement of economic responsibility or financial 
responsibility.
    Do you view that commitment, that document they sign, as a 
legal and binding contract, or as a moral commitment?
    Mr. Mukasey. I believe it is binding. I think if somebody 
says I am going to be financially responsible for somebody, 
what that means is, they are going to be financially 
responsible for somebody. That is what I understand it to mean.
    Mr. Gallegly. Would you be kind enough to perhaps in the 
near future have your staff give us some type of a recap of how 
many folks have actually been prosecuted for not----
    Mr. Mukasey. For not stepping up?
    Mr. Gallegly. For not taking that responsibility. And 
whether or not we are actually pursuing it. I could give you 
examples in my own district about people that are in the seven 
figures that bring someone here, that within 6 months a parent 
or brother or whoever they brought here is on Federal benefits 
getting hearing aids that cost over $5,000, and nothing is done 
about it.
    So, in any event, I would just like to know if in fact with 
all the other things that your Department is challenged with, 
whether or not this is an issue that is taken seriously.
    Mr. Mukasey. In fairness, I think this is in some part a 
responsibility of DHS, which has, as you know, immigration 
control.
    Mr. Gallegly. Of course, when I had this discussion before, 
we didn't have a DHS. But we do now.
    Mr. Mukasey. There has been a sundering of responsibility 
to a certain extent here. Let me find out what part we have 
got, what part they have got, and see if we can straighten it 
out.
    Mr. Gallegly. Thank you very much, Mr. Chairman.
    Mr. Conyers. Chairwoman Zoe Lofgren, Chairwoman of the 
Immigration Subcommittee.
    Mrs. Lofgren. Thank you, Mr. Chairman.
    And Mr. Attorney General, it is good to see you. I have 
some questions about our policy on prosecution of immigration 
misdemeanor measures and how that is impacting the other 
prosecution priorities of the Government.
    We received information a few weeks ago in a Subcommittee 
hearing with the U.S. Attorneys that, in the Southwest border 
region, there had been a very substantial, tens of thousands of 
increases in misdemeanor prosecutions for immigration 
violations, and a nearly 40 percent decrease in prosecution of 
organized crime. To me, that seemed like not a good trade-off 
in terms of the standards.
    So I am wondering, TRAC--and I know the Department doesn't 
always agree with TRAC--has told us that 58 percent of all 
prosecutions in April of this year were for immigration-related 
matters, with only 13 percent for drug trafficking, and that 58 
percent of all criminal prosecutions is mostly for misdemeanor 
immigration crimes.
    Can you address this?
    Mr. Mukasey. I can address it in this way:
    Yes, we have had an increase in misdemeanor prosecutions. 
The strategy across the border is a varied strategy; it is not 
one-size-fits-all. Part of that strategy involves prosecution, 
and in the districts where we found an increase in prosecution, 
we have also found a decrease in infiltration, that is, a 
decrease in the number of illegals coming across the border. 
That, to me, suggests a relationship. I don't by any means buy 
into the idea of a trade-off as between immigration 
prosecutions and drug prosecutions.
    Mrs. Lofgren. If I can, Mr. Attorney General, the 
statistics we got were from the Department, and what they told 
us is that there had been an increase, a substantial increase, 
and it was accompanied at the same time by a tremendous 
decrease in organized crime prosecutions.
    I have heard from local prosecutors that DEA agents are now 
turning to local police for some of their drug prosecutions; 
because they can't get warrants through the U.S. Attorneys' 
offices, it is taking 6 months, which, for a drug prosecution, 
just doesn't work, and because the U.S. Attorneys' offices are 
so busy with prosecution of nannies and busboys, that they 
can't get to the court in a timely fashion to get these 
warrants in the fight against these drug cartels. That is what 
local prosecutors are telling me.
    Can you address that?
    Mr. Mukasey. In fairness, I think it is a mistake to say 
that we are not prosecuting drug dealers and we are prosecuting 
nannies and busboys.
    Some of the smaller drug cases are prosecuted in State and 
local courts. However, we do prosecute drug cases, even low-
level drug cases, where it appears that people are bringing 
drugs in in relatively small amounts, are putting those 
together with other amounts and essentially packaging them up 
for a larger shipment.
    So we try to prosecute the more serious drug cases, as well 
as the immigration cases, to keep the numbers down and to 
control a problem that I think we all recognize, which is 
unlawful immigration.
    Mrs. Lofgren. Well, I appreciate that is your philosophy. I 
don't think the statistics in your Department back up that 
philosophy.
    Let me talk to you about the Federal circuit courts, 
because they have been in touch. As you know, immigration 
appeals are the single largest number of cases in the circuit 
courts. The Second and Ninth Circuits, that is 40 percent of 
their overall docket, immigration appeals. The circuits have 
actually organized to say, you know, we need to do something 
about this.
    They really believe, and I think they are right, that the 
caseload expansion at the circuit courts is a result of the BIA 
streamlining procedures that former Attorney General Ashcroft 
implemented in 2002, which basically eliminated any effective, 
meaningful review for immigration appeals, which just shoved it 
up to the circuits.
    What are you doing or planning to do to relieve this burden 
on the circuits?
    Mr. Mukasey. We are trying to systemize and organize the 
way in which immigration appeals are handled. It is my 
understanding, for example, that in the Second Circuit, which 
is the one that I come from, they have organized the docket of 
immigration cases in such a way that some of them are handled 
summarily, that is, without argument; others not, depending on 
the underlying merits of the case.
    They have managed to screen and handle them that way.
    Mrs. Lofgren. If I could, I know my time has expired, this 
is really an emergency for our circuits, and I am sure you are 
sensitive to it. The Committee that the circuits have organized 
has indicated to me that the answer is not with the circuits, 
the answer is to look at what caused this shift to the 
circuits, and it is because if you have got bad cases, they are 
going to be heard somewhere. Somebody is going to be killed 
because their asylum appeal was erroneously denied. They are 
not just going to pass on that, because it is too serious.
    So if you don't have a meaningful BIA process, which we 
don't, then we are going to have this bill up to the circuits, 
and it is overwhelming them, and it is not the appropriate 
format, it seems to me.
    Mr. Mukasey. My experience with BIA cases has been that 
they are resolved on the merits in a serious way. I don't see 
the BIA rubber-stamping them one way or another.
    Mrs. Lofgren. Well, that is not what the circuit courts 
believe.
    I yield back, Mr. Chairman. Thank you.
    Mr. Conyers. Steve Chabot, formerly Ranking Member on the 
Antitrust Task Force Committee of Judiciary, now ranking on the 
Small Business Administration and still a Member of the 
Judiciary Committee.
    Mr. Chabot. Thank you, Mr. Chairman.
    General Mukasey, I want to follow up on some questioning 
back in February regarding Delta Airlines and its announcement 
to merge with Northwest Airlines.
    Mergers within the airline industry are treated with a 
great deal of speculation because of the impact that such a 
move has on consumers, particularly now with rising fuel 
prices, in terms of limited flights and increased fares and, in 
addition, the economic toll that it can have on cities and 
regions in terms of their ability to bring businesses and 
development into an area.
    My question to you is, how is the Department examining the 
merger and what factors are you examining and when do you 
expect a decision on that merger?
    Mr. Mukasey. The short answer to your question is 
carefully.
    The Antitrust Division has been addressing that merger in 
particular in a very sensitive way. They have got their own 
economists on staff who weigh the economic effect of the merger 
as against the economic effect of having companies continue in 
business, neither of which can survive alone. So what they try 
to do is balance one against the other and see whether the 
merger promotes competition, enhances the health of the 
surviving entity, or the combined entity, and serves consumers 
better.
    Those are the elements that they consider, and they 
consider them carefully. And they understand that this is an 
exigent matter. They are working hard on it. I meet with them 
regularly. But since it is a hard matter, they want to make 
sure they get it the right the first time.
    Mr. Chabot. Thank you.
    Related to the Delta merger, members of the Ohio delegation 
sent a letter to you last month and to the Assistant Attorney 
General for Antitrust, Thomas O. Burnett, last week, expressing 
concerns with DHL's decision to enter into a contract with 
United Parcel Service. That agreement would allow UPS, one of 
DHL's principal competitors, to provide DHL's delivery services 
in North America.
    To make a long story short, implementation of this 
agreement could impact Ohioans who are employed by companies 
already providing these services for DHL, as well as consumers 
nationwide who are purchasers of these delivery services.
    Understanding the implications that this agreement has for 
the State of Ohio, and in fact for the Nation, my question is, 
how will the Department of Justice treat this agreement and 
what factors would your office be examining to ensure that the 
market remains competitive and consumers, protected?
    I would assume your answer is somewhat similar to the 
first, but there it is.
    Mr. Mukasey. It is very similar to the first. I think we 
would consider obviously what alternatives are available to 
consumers to reliance on either UPS or DHL. FedEx comes to 
mind, although that is only because that is one I am familiar 
with. But the effect on consumers and the economic effect of 
the merger is going to be something that they consider. That 
includes jobs.
    But the first I heard of it, I think, was yesterday when 
the letter came to my attention. I have not reviewed that 
particular one with the Antitrust Division, but I have no doubt 
that they are giving that the kind of consideration that they 
are giving to the rather larger merger which you referred to, 
which I have discussed with them.
    Mr. Chabot. Thank you very much.
    Finally, on June 25, so just about a month ago, the U.S. 
Supreme Court struck down a Louisiana State law authorizing the 
death penalty for child rape cases. In overturning the death 
sentence, the Court examined the eighth amendment under its 
evolving standards of decency standard, specifically focusing 
on national trends relating to the death penalty in child rape 
cases. The court claimed that there is a national consensus 
against the death penalty for child rape cases. In my opinion, 
nothing could be further from the truth.
    In fact, Congress 2 years ago authorized the death penalty 
for child rapists under the Uniform Code of Military Justice. 
In 2007, President Bush issued Executive Order 13447 codifying 
this provision in the 2008 Manual for Courts-Martial. Just 
yesterday, the State of Louisiana filed a petition for 
rehearing in the case.
    I have introduced a constitutional amendment, along with a 
number of my colleagues--Rick Keller, Lamar Smith, Tom Feeney 
and others--that would clearly state that the death penalty for 
child rape is not cruel and unusual punishment.
    I would be very pleased to hear any input you could give us 
on that.
    Mr. Mukasey. Well, first of all, the fact that that was in 
the Uniform Code of Military Justice is something that we 
missed, and I regret that. And I take some, but frankly very 
little, consolation from the fact that all nine Supreme Court 
Justices missed it, all of their clerks missed it and the 
parties missed it. That was pointed out by somebody with a 
particular interest in military law, who found it later on. 
That leaves us in a position of not being able to petition 
independently.
    The fact that Louisiana has petitioned gives us the 
opportunity to join in that petition. To my knowledge, the 
decision about whether to join in it or not has not yet been 
made, but is under consideration. That is what I know about 
that.
    Mr. Chabot. Thank you very much. I would urge you to join 
that, because I think it is unconscionable that those that 
commit perhaps one of the most despicable acts possible, the 
rape of a child, can't get the ultimate penalty because of a 5-
4 vote in the U.S. Supreme Court. I think that should be 
reversed as quickly as possible.
    Thank you very much.
    Mr. Conyers. The distinguished gentlelady from Texas, Chair 
of the Transportation Subcommittee and Homeland Security 
Committee and an officer in the Congressional Black Caucus, 
Sheila Jackson Lee of Houston, Texas.
    Ms. Jackson Lee. Mr. Chairman, thank you, and to the 
Ranking Member.
    It is an important time that we spend with you, Mr. 
Attorney General, on our oversight duties. And hoping that the 
word that I use does not suggest that there is no work at the 
Department of Justice, but let me just say there is a certain 
order and calm that you brought to the Department of Justice, 
and we applaud you--I do--for I hope the hard work that is 
going on there.
    You have heard the many concerns of my colleagues, and I am 
going to add to them and try to speak as quickly as I can to 
try to frame the concerns that I have.
    The role of the Department of Justice, I think, is the arm 
of justice for the Nation, and I note that the fiscal year 2000 
budget on civil rights is $123 million. It sounds like a lot, 
but it is less than $1 per American, and I believe all 
Americans deserve the right to civil liberties. So let me 
quickly put some things on the record.
    I want to express concern, and I know overlapping 
jurisdictions on the random ICE raids that generated the arrest 
of American citizens because their last name happened to be, in 
many instances, in Texas Hispanic; and I would ask for a report 
back from the Department of Justice on how they are 
coordinating with these ICE raids that haul in Americans under 
the pretense of immigration reform.
    Let me quickly also suggest that we have a broken watch 
list process. I want to commend an individual who is a medical 
doctor, who has been trying to become a citizen since 2004, and 
it is now 2008, and we believe that--well, we know that is a 
question of the watch list verification.
    Another individual that had a sex change is a functioning, 
working individual, abiding by the law, has been trying to 
become a citizen since 12/03, and they too are in the midst of 
this confusion of the watch list.
    So I would like to put into the record--Mr. Chairman, I ask 
unanimous consent to put into the record--General Mukasey, the 
letter I sent to you on July 22, 2008, to ask for an 
investigation of the FBI watch list and its progress. You might 
want to comment briefly, but I want to put this in the record. 
It specifically deals with the likes of Congressman John Lewis, 
but also Drew Griffin of CNN, who came on the watch list after 
an investigation.
    Mr. Conyers. Without objection, so ordered.
    [The information referred to follows:]
    
    
    

    Ms. Jackson Lee. I also want to put into the record 
February 7, 2008, a letter dealing with the imams in the 
Minneapolis-St. Paul airport, as to why these imams were 
removed, arrested and detained. I understand they have a 
finding of discrimination; I would like to know what the 
Department of Justice is doing with that.
    Mr. Chairman, I ask unanimous consent to put that in the 
record.
    Mr. Conyers. Without objection, so ordered.
    [The information referred to follows:]
    
    
    

    Ms. Jackson Lee. Let me get to where I will cease so that 
you can answer these questions.
    We have had a series of incidents under the criminal laws 
of this Nation that have shown that we need improvement, Mr. 
General. I have mentioned the oversight of the long arm of the 
Government can bring about light at the end of the tunnel. The 
Jena Six I refer you to, the Sean Bell case I refer you to, the 
recent tasering of a Black man in Winnfield, Louisiana, and 
then to Harris County, where we have found that there have been 
101 deaths from January 2001 to December 2006. We just had the 
additional loss of a Ms. Saavedra, who died in the jail from an 
infected knee, having begged for medical treatment and having 
not received it.
    I want to put into the record a May 7, 2007, letter that I 
have given to you previously and ask unanimous consent.
    Mr. Conyers. Without objection, so ordered.
    [The information referred to follows:]
    
    
    

    Ms. Jackson Lee. A February 7, 2008, letter regarding the 
district attorney in Harris County, and I briefly read to you. 
This person is allegedly to have repeatedly sent racist and 
sexual e-mails in his actions in the cases in which he 
prosecuted. We asked simply for this to be reviewed on the 
basis of prosecutorial misconduct and abuse, civil rights 
violations, and the proclivity to remove Black jurors.
    We got a letter back from the Department of Justice 
indicating that was not something that you would review, and I 
thought that had to do with civil rights.
    So I would ask, Mr. Attorney General, one, what is the 
amount of money and staff and counsel that you are utilizing to 
help purge out the bad apples in the Nation's criminal justice 
system as it relates to the violation of civil rights of 
Americans; and, two, what are we doing with respect to the 
national security investigations of individuals who sometimes 
seem to be targeted because of racial, ethnic, sexual gender or 
otherwise?
    I would appreciate your answer.
    Mr. Mukasey. I cannot enumerate for you now a specific 
amount of money being devoted to the problem that you raised. 
The fact is that we devote our resources across the board to 
civil rights problems, and we have had a phenomenal success 
rate. Criminal prosecutions are up, the level of our success in 
appellate cases is up, the number of voting rights cases that 
we have brought is up.
    We bring Title VII cases to achieve the maximum amount of 
impact. We are doing this across-the-board.
    With respect to, I think it was the Harris County jail 
situation----
    Ms. Jackson Lee. And the district attorney's office, which 
your office indicated they couldn't respond.
    Mr. Mukasey. If criminal evidence comes to hand that 
warrants a prosecution of that district attorney----
    Ms. Jackson Lee. Or civil rights.
    Mr. Mukasey. Or civil rights--who, by the way, is no longer 
in that position; he is now an ex-DA, and it sounds like he 
deserves to be a ex-DA. We will pursue that.
    But with regard to the Harris County jail investigation, 
that is ongoing. It is bound to be a long-term thing because it 
involves revisiting the facility, evaluating all of its 
treatment, medical care, food, space and the like, and it is 
likely to take quite some period of time. But there is an 
active inquiry into the conditions in Harris County, and that 
is due in no small part to the fact that you are involved in 
that and have offered us both advice and leads in that.
    And although you have been somewhat critical, I can't do 
anything but say that I am grateful for the fact that you are 
involved in it.
    Ms. Jackson Lee. I would just simply say, the district 
attorney's office, you have articulated the history of that 
office. But I think the question for the Justice Department 
would be pattern and practice. I would ask respectfully, 
Attorney General Mukasey, that that be looked at again, because 
I mentioned the elimination of minority jurors consistently, 
and I think that warrants a broader look-see, because we are 
talking about the infrastructure of the justice system.
    Mr. Mukasey. I will get back to you with respect to that 
one.
    Ms. Jackson Lee. Thank you.
    Mr. Conyers. The Chair recognizes Dan Lungren, who is the 
only former attorney general of a State on the Judiciary 
Committee, and he is senior of the three other former attorney 
generals that are here.
    Mr. Lungren. Thank you very much, Mr. Chairman.
    Thank you for your appearing before us, Mr. Attorney 
General.
    Mr. Attorney General, a year-and-a-half ago the Foreign 
Intelligence Surveillance Court made a ruling in which it 
indicated that new circumstances overwhelmed the FISA law and 
basically invited the Congress to deal with that issue. It took 
us a year-and-a-half to do that, during which time I think we 
lost valuable opportunities for intelligence.
    Now you have come before us to refer us to the recent 
Supreme Court case dealing with unlawful enemy combatants and 
this new right they have to habeas corpus, a right that had 
never been seen before in the history of the United States, 
but, nonetheless, one that in the evolving sense of wisdom, the 
U.S. Supreme Court has found.
    In the speech you gave yesterday, or the day before, AEI--
--
    Mr. Mukasey. The day before, I think.
    Mr. Lungren [continuing]. You spoke at some length about 
this, and in the middle of your speech you said one of the 
questions that had to be answered was whether a Federal Court 
will be able to order the enemy combatants detained at 
Guantanamo Bay be released into the United States.
    You then went on to say the Supreme Court stated that a 
Federal trial court must be able to order at least the 
conditional release of a detainee who successfully challenges 
his detention.
    But what does it mean to order the release of a foreign 
national captured abroad and detained at a secure United States 
military base in Cuba? Will the courts be able to order the 
Government to bring detainees into the United States and 
release them here, rather than transferring them to another 
nation? And you further indicated that the court has invited 
the Congress to act on that.
    So I wish you would go a little bit further than you did in 
your opening statement about the urgency of the matter for 
Congress to address this and the seriousness of the questions 
that you asked here, because it seems to me those are unsettled 
questions, whether the courts would be able to order the 
Government to bring detainees to the United States and release 
them here. Clearly, that has not been decided, yet I believe 
the Court is inviting the Congress to outline the parameters of 
that and, I would suggest, make it impossible for that to 
happen.
    Mr. Mukasey. The Court has left that matter open, and the 
fact--but it has said that at the end of the day it must be 
open to a decision-maker to direct release.
    Now, the fact is that all of these people, every single one 
of them, are aliens captured abroad in essentially battle 
conditions who have absolutely no right to be here; and there 
is no good reason to have a court bring somebody here for 
purposes of release and release them into our communities, 
people who could pose a significant danger. We want that 
particular possibility cut off. We don't want to have to face 
it. We shouldn't have to face it. And if people are brought 
here for hearings or are brought here as witnesses, they can 
simply, by coming here, acquire rights that they did not have 
abroad.
    You recall that there was an extraordinary effort to keep 
Haitians from coming here, to keep people in the Mariel 
Boatlift from coming here when they were released from Cuba, 
and for very good reason; and that is if they set foot on 
American soil, there are matters that are at issue that were 
not at issue beforehand. We don't think they should be put at 
issue.
    Mr. Lungren. You also mention in your speech the question 
of whether or not American military people on the battlefield 
would be subject to coming to a hearing, whether or not their 
testimony would be required, the kinds of evidence keeping that 
would be required under normal circumstances and how that 
applies to the battlefield.
    I presume you are suggesting that Congress ought to deal 
with that issue as well.
    Mr. Mukasey. I am. The Court left it open specifically and 
said that this was to be approached in a practical way.
    Courts don't have the ability to gather facts on their own. 
Congress has that ability. Courts don't have the collective 
expertise that Congress has or that the executive can provide 
in assisting and drafting that legislation. Courts don't have 
it; Congress and the executive does. And if anyone should step 
into this, it is Congress with the assistance of the executive, 
and that is what we hope to do.
    Mr. Lungren. As I understand, we have over 200 people held 
currently at Guantanamo. This is ongoing. In other words----
    Mr. Mukasey. Down from 775.
    Mr. Lungren. Right. But this is ongoing, requiring Congress 
to act sooner rather than later.
    Mr. Mukasey. Correct.
    Another thing the Supreme Court said is that this process 
had to go ahead quickly, and it is going ahead quickly. And the 
quicker it goes ahead, the more likely it becomes that that 
there may be inconsistent results reached and situations 
created that could be stopped with intelligent legislation.
    Intelligent legislation can do two things: It can both 
speed up the process by ensuring consistency, and it can assure 
that undesirable results are avoided.
    Mr. Lungren. I hope you haven't assumed facts not in 
evidence, that is that we are capable of producing intelligent 
legislation. I hope that is not the case.
    Mr. Mukasey. I think they are in evidence. Congress acted 
very quickly to pass the Protect America Act, it acted very 
quickly to enact the authorization of military force; it acts 
quickly when it puts its collective mind to it.
    I don't want to sit here and preach. That is not what I am 
here for. But the fact is that the capacity is here and the 
intelligence is here.
    Mr. Lungren. I appreciate that very much, and I yield back 
the balance of my time.
    Mr. Conyers. The Chair recognizes the gentlelady from 
California, Maxine Waters, who chairs the Housing Subcommittee 
in Finance and is a Member of three Subcommittees on Judiciary.
    Ms. Waters. Thank you very much, Mr. Chairman. I appreciate 
the fact that you are always making available to us the heads 
of our agencies and departments that are responsible for 
important areas of Government. And I would like to thank Mr. 
Mukasey for being here today.
    The Justice Department has the responsibility of enforcing 
civil rights, investigating complaints of civil rights 
violations, the Voting Rights Act, fair housing, Title IX 
enforcing discrimination complaints for those who are disabled, 
and, of course, AIDS discrimination is one of the areas you 
have responsibility for.
    I would like to know, what do you know about the problem of 
the discrimination complaints within your own Department? If we 
are to have confidence that you can do the work that is 
mandated by law, I want to know why you continue to have so 
many discrimination complaints, what you understand about those 
complaints, how many are still pending. Have you proposed any 
initiative to deal with the problem? What are you doing to 
recruit and outreach to help cure the disparity?
    You have 12,000 agents. Less than 5 percent of them are 
African American. Does this problem cause you any 
embarrassment, and, if so, what can you do about it? What are 
you going to do about it?
    Mr. Mukasey. When you refer to 12,000 agents, you mean 
12,000 FBI agents?
    Ms. Waters. I have 12,000 agents serving in the FBI.
    Mr. Mukasey. That corresponds roughly to the number of FBI.
    My experience has been, through direct observation, that 
FBI is engaged in significant outreach and that more and more 
FBI agents are being recruited from within the African American 
community.
    Ms. Waters. Do you have the numbers?
    Mr. Mukasey. I don't have the numbers. I can get them for 
you.
    Ms. Waters. I would appreciate that.
    You have discrimination complaints. How many are pending 
within the Department?
    Mr. Mukasey. I don't know the precise number that are 
pending. There is one that I am familiar with that is in 
litigation that I can't really comment on. But my sense is 
different from yours, i.e., that there is not a large number of 
them. Let me go back and check. I know of one case that is in 
litigation.
    Ms. Waters. When you talk about recruitment, could you 
describe your outreach and recruitment efforts?
    Mr. Mukasey. We go to universities. We go to schools. We 
evaluate applications on the merits. We make it well known that 
we are looking for talented people.
    Ms. Waters. Do you feel you have a problem?
    Mr. Mukasey. We can always do more.
    Ms. Waters. Do you have a problem?
    Mr. Mukasey. We can always do more.
    Ms. Waters. Are you satisfied that aside from the kind of 
generic answer of you can always do more, that you don't have 
that many complaints, they are not that serious, and you don't 
need to take any special initiatives? If you can always do 
more, what more are you doing? What more do you propose to do?
    Mr. Mukasey. I am never satisfied. I am not in the business 
of being satisfied. I am in the business of looking for ways to 
recruit talented people from all communities. We have been 
doing that. I am going to get you the numbers on the FBI, and, 
if you have any particular cases, I will be happy to review 
them.
    Ms. Waters. No. I would like to ask our Chairman if we can 
make a request from this Committee to get a list of all of the 
discrimination complaints and the status of those complaints so 
that we can decide and I could impose upon you, Mr. Chairman, 
to see if we need to do a hearing about those complaints.
    Mr. Mukasey. Discrimination complaints within the Civil 
Rights Division?
    Ms. Waters. Complaints within the Department. 
Discrimination complaints from agents, African American agents, 
or from women, against the Department, and your discriminatory 
practices there in the Department.
    Mr. Mukasey. You somewhat broadened the target. But 
whatever is requested, if we can provide it, we will provide 
it.
    Mr. Conyers. Would the gentlelady yield? Because I would be 
willing to review that list when it is sent to you.
    Ms. Waters. I appreciate that. That is probably very 
important that we get the actual information. Mr. Mukasey is 
new and he perhaps doesn't know in depth the problem that 
exists.
    Mr. Mukasey. I am not taking refuge behind the fact that I 
am new. I am going to take a look at it, and it may provide a 
subject for discussion in a meeting that I am going to have.
    Ms. Waters. Mr. Chairman, I am being kind to provide him 
with an excuse for not knowing the information that I have 
asked him today. So whatever the reason is, we need that 
information.
    I thank you, and I yield back the balance of my time.
    Mr. Conyers. Bob Goodlatte, Chairman emeritus of 
Agriculture and distinguished Member of the Committee.
    Mr. Goodlatte. Thank you, Mr. Chairman, and thank you for 
holding this hearing.
    Attorney General Mukasey, welcome. We are very pleased to 
have you here. I also want to thank you for your commitment to 
protecting our elections process by aggressively prosecuting 
voter fraud cases.
    I wonder how your efforts are going, and do you agree it is 
crucial that we ensure that U.S. Citizens' votes are diluted by 
those unauthorized to vote, including illegal aliens?
    Mr. Mukasey. I think it is crucial that we ensure it. I 
think that one way in which we have helped assure it is 
assuring that proper identification is required before somebody 
can vote. Obviously, when evidence presents itself that people 
are here unlawfully, they are apprehended and deported.
    Mr. Goodlatte. Thank you. A recent experience under 
Indiana's voter ID law seems to show that such laws do not 
diminish voter turnout. On the contrary, they can actually 
increase voter turnout.
    As was recently reported, voter turnout among Democrats 
improved slightly last year in Indiana, despite a new law 
requiring voters to show photo identification at the polls. 
Jeffrey D. Milyo, a professor at the University of Missouri, 
compared the 2006 midterm elections, the first since Indiana's 
law was enacted, to the 2002 midterm elections, and said voter 
turnout increased about 2 percentage points. He said the 
increase was consistent across counties with the highest 
percentage of Democrats.
    So do you think that this increased turnout could be 
explained by the fact that securing voter ID laws gives legal 
voters the security of knowing that their vote will count and 
that it will not be diluted?
    Mr. Mukasey. I am not technically trained, so I don't want 
to speculate on the possible relationship. I think all that 
study shows is that you don't cut down the number of voters 
simply by requiring that people have to show ID. Whether there 
is a cause-and-effect relationship is for people who are much 
more schooled in statistics and sociology than I am.
    Mr. Goodlatte. I agree. Section 642 of the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996 
bars State and local governments from restricting their law 
enforcement officers from communicating with the Department of 
Homeland Security about the immigration status of individuals. 
Despite that law, many sanctuary cities continue to prohibit 
law enforcement from checking the immigration status of 
criminal aliens that they encounter.
    The results can be tragic. There have been many reported 
cases where the immigration status of criminal aliens was not 
checked because of sanctuary policies, and they were released 
back into society to murder American citizens.
    What steps are you taking to enforce section 642 and to 
stop cities from using sanctuary policies?
    Mr. Mukasey. We are trying to police unlawful aliens in 
this country. We are doing our best to conduct controlled 
operations, along with the Department of Homeland Security, 
when we find them located in a particular place.
    That said, I have said on prior occasions that I can 
understand the dilemma posed when unlawful aliens essentially 
present an attractive victim pool for people who know that they 
won't file complaints. And there is a balance to be struck 
here, but we are certainly alive to the need for enforcement, 
and we engage in it actively.
    Mr. Goodlatte. That dilemma that you face could be enhanced 
if you had the cooperation of communities, rather than some 
communities refusing to cooperate with the Department of 
Homeland Security or the Justice Department in enforcing our 
criminal laws.
    Mr. Mukasey. Precisely.
    Mr. Goodlatte. Thank you.
    Attorney General, in April of this year, you announced the 
allocation of additional resources for prosecuting felony and 
misdemeanor immigration-related violations, such as human 
trafficking and drug smuggling, with $7 million provided to 
hire 64 assistant U.S. Attorneys and 35 support staff assigned 
to the Southwest border U.S. Attorneys' offices which prosecute 
the majority of the country's felony immigration cases.
    For fiscal year 2009, the Department is requesting another 
$8.4 million to add another 50 attorneys along the border. With 
these increased resources, will you be placing increased 
emphasis on the prosecution of misdemeanor and felony 
immigration cases?
    Mr. Mukasey. We will be able to address this problem, as we 
have been addressing it, in a flexible sort of way, including 
increased prosecution, which, as I said, has led to reduced 
infiltration. We have more prosecutions, less infiltration, in 
each of the districts across the border.
    We don't use precisely the same approach in each of the 
districts across the border. It is not one-size-fits-all, 
because one size doesn't fit all. There are places where there 
are greater numbers, numbers that, if fully prosecuted, would 
overwhelm the system, because there simply aren't enough 
judges, lawyers, bed space and marshals. But we try to address 
each problem in each district to meet that district's needs.
    Mr. Goodlatte. Thank you. I agree with that assessment.
    I think Americans are starting to see some results along 
the border. I think more needs to be done, and more needs to be 
done in the interior of the country. But I encourage you to 
pursue those efforts.
    Thank you again for being here today.
    I yield back, Mr. Chairman.
    Mr. Conyers. Bob Wexler, Florida, Member of the 
Intellectual Property Subcommittee.
    Mr. Wexler. Thank you very much, Mr. Chairman.
    Thank you, Mr. Attorney General, for appearing before us. I 
am hopeful that you, Mr. Attorney General, can somehow explain 
to this Committee and to the American people how this 
Administration effectively nullified the constitutional power 
of Congress to investigate actions of the executive branch and 
how this Administration has effectively rendered meaningless 
our power to seek and subpoena executive branch witnesses. 
Unfortunately, your actions, thus far, have enabled this 
President to assert this unprecedented abuse of executive 
privilege claims and the outright refusal of Administration 
officials to come before Congress.
    I would like to specifically discuss with you the interview 
Vice President Cheney held with the FBI regarding the CIA leak 
investigation. In a demonstration of just how far you have 
stretched the definition of executive privilege, you declared 
that those FBI interviews were ``internal White House 
deliberations'' and, thus, exempt from congressional oversight.
    These FBI interviews would seem to be nothing of the sort, 
and they would seem to have zero relation to any official White 
House business or Federal policy. These are transcripts of FBI 
investigators interviewing Vice President Cheney, nothing more, 
nothing less.
    So my question, respectfully, Mr. Attorney General, is, 
does your Justice Department consider all FBI investigators to 
be part of the White House, and by your logic, is there any 
way, any conceivable way, that the White House could in fact be 
investigated without triggering executive privilege?
    Mr. Mukasey. Let me explain the problem as follows:
    The FBI 302s that you referred to--which, by the way are 
not transcripts, they are reports by FBI agents on their 
conversations with particular people--the 302s that you 
referred to were on conversations with the Vice President. 
Those conversations concerned conversations that he had 
internally with respect to matters that were at the heart of 
the notion of executive privilege, i.e. conversations relating 
to whether the President was accurate or inaccurate in his 
comments in his State of the Union and related matters. That 
was the subject of those 302s.
    The fact that those conversations happened to be recorded 
in 302s doesn't change the protection afforded to them. That is 
our view. And I think that principle is not my invention. It is 
nicely illustrated in a pair of cases involving the Nixon 
tapes, where an objection based on executive privilege was 
sustained in response to a congressional subpoena, whereas an 
objection based on executive privilege was not sustained in 
response to a demand for a subpoena by a prosecutor.
    Those two cases could not stand side-by-side were it not 
for there being that distinction.
    Mr. Wexler. Are you asserting that the FBI did not inquire 
with the Vice President with respect to his role in the outing 
of a covert CIA agent?
    Mr. Mukasey. I am not going to disclose the substance of 
the FBI's inquiries beyond saying the substance of those 
inquiries involved core executive privilege concerns, which the 
President invoked.
    Mr. Wexler. If the Vice President of the United States did 
in fact participate in the outing of a covert CIA agent, is it 
your position that that involves the core actions of the Vice 
President?
    Mr. Mukasey. I should point out that your question embodies 
a counter-factual assumption, because the prosecutor in that 
case closed that case by saying that no further investigation 
was necessary.
    Mr. Wexler. What is your definition of ``internal White 
House deliberations''? What qualifies?
    Mr. Mukasey. What qualifies? You mean what qualifies for 
executive privilege? Deliberations between the President and 
those immediately around him and the gathering of information 
by him for the purpose of making decisions.
    Mr. Wexler. So a discussion with the Vice President with 
FBI agents under that definition would only qualify to the 
extent he is talking about conversations that the President 
had; is that correct?
    Mr. Mukasey. Conversations that were had within the 
executive generally for the purpose of advising the President.
    Mr. Wexler. But clearly, you tell me otherwise, whether or 
not the Vice President participated in a scheme to out a CIA 
agent, would that be covered by executive privilege?
    Mr. Mukasey. The Vice President's participation, yes or no, 
was the subject of inquiry by a prosecutor.
    Mr. Wexler. I understand that. But does it qualify for 
executive privilege?
    Mr. Mukasey. In the abstract, no.
    Mr. Wexler. Thank you, Mr. Chairman. My time has expired.
    Mr. Conyers. The Chair recognizes Rick Keller, who serves 
on three Subcommittees on Judiciary. The gentleman from Florida 
is recognized.
    Mr. Keller. Thank you, Mr. Chairman, and thank you, 
Attorney General Mukasey, for being here today. We very much 
appreciate it. I am going to ask you about two subject areas.
    First, I want to ask you about the media shield issues, and 
second, touch on violent crime. With respect to the media 
shield issue, I have read your testimony today. I know that you 
and the Bush administration have expressed concerns about the 
media shield bill.
    I have worked very closely with the authors of this 
legislation to come up with fair compromise language that 
helped to win overwhelming bipartisan support on this Judiciary 
Committee and in the full House. Since the sensible exceptions 
that we have come up with, such as not allowing reporters to 
withhold information that could prevent crime, terrorism, or 
harm national security, hasn't been enough to satisfy the Bush 
administration to support the media shield bill, I am curious 
myself about what it would take to have a bill that would be 
acceptable.
    So my question to you is, is there any version of the 
Federal media shield bill that you would find acceptable enough 
to recommend to President Bush that he would not veto it?
    Mr. Mukasey. With great respect, there is nothing that I 
have seen in the media shield bill, as presented, that would 
allow for the sufficient protection of classified information, 
for the sufficient protection of the security of this country. 
In my view, the media shield bill, in the large, is a solution 
in search of a problem.
    We have a procedure in place for the protection of 
subpoenas against reporters. The United States attorneys are 
not free simply to do that without the permission of the 
Attorney General. We have had less than two dozen cases in 
which such subpoenas have issued since 1993.
    Mr. Keller. Well, Mr. Attorney General, I would submit to 
you that there is language in there that specifically deals 
with the leaking of classified national security information.
    Mr. Mukasey. There is in fact a higher standard for 
prosecuting a leak case than there is for any other case in 
that statute, and it would provide not protection for 
reporters, it would provide protection for leakers.
    Mr. Keller. Right. Well, were you aware that the Ranking 
Members of the Intelligence Committee, along with the Chairman 
of the Intelligence Committee, Republicans and Democrats, along 
with the leaders, Republicans and Democrats, of the Armed 
Services Committee, felt that that language dealing with the 
national security protections was sufficient enough that it 
justified them voting for it?
    Mr. Mukasey. I don't know what they felt or didn't feel. I 
know what is in the bill. And what is in the bill, for example, 
requires a showing that classified information was properly 
classified and that the person who leaked it had authorized 
possession of it.
    If somebody wants to leak classified information, it is 
child's play for that person to take that information, give it 
to somebody who is not authorized to leak it, and then the 
investigation ends.
    Mr. Keller. All right, let's focus on what we can agree on, 
because I don't want to quarrel with you, but I am trying to 
resolve this issue.
    Mr. Mukasey. That is what is in the bill.
    Mr. Keller. We can agree that 398 House Members voted for 
it. I think we can agree that both Senator Obama and Senator 
McCain said they would sign the bill, and I think we can agree 
that one of those two men is going to be the next President of 
the United States.
    So you agree with all three of those facts?
    Mr. Mukasey. I would agree with all of those facts, and I 
would also agree that 10 angels swearing on Bibles that that 
bill was harmless would not change the provisions that are in 
it.
    Mr. Keller. So back to my original question.
    You have got less than 6 months on the clock here until the 
end of the Bush administration. Will you commit today to 
sitting down with our congressional leaders to try to fashion a 
compromise relating to these national security issues that 
would ultimately result in your being able to recommend that 
the President sign the bill? Or in the alternative, is there no 
bill that you would recommend being signed?
    Mr. Mukasey. I am in the same position as a Socialist 
candidate for President named Eugene Debs, who said, ``I will 
talk to anybody who will talk to me.''
    I will sit down with anybody who wants to sit down and have 
a serious conversation about what can be done and what can't be 
done, but first we need to talk about what is there. And what 
is there is not acceptable for the reasons I have started to 
explain, and I would be happy to continue to explain.
    Mr. Keller. If there is language that is acceptable to you 
that provides the protections for national security, would you 
then be able to be in a position to recommend it?
    Mr. Mukasey. If anybody can come up with language that is 
acceptable, that protects national security, that allows us to 
get information when there is serious indication of an 
impending crime, then yes.
    Mr. Keller. Okay. My time is about to expire on the violent 
crime issue, so let me just make a statement and give you a 
chance to respond.
    On the positive front, Attorney General Mukasey, I have 
seen very good results in my area of Orlando, Florida, arising 
out of the ATF Violent Crime Impact Team, and I have seen very 
positive results as a result of 774 cops added to the streets 
of central Florida through the COPS program.
    Can you give me your thoughts, as we wrap up, on the ATF 
Violent Crime Impact Teams and the COPS program?
    Mr. Mukasey. The VCITs, the Violent Crime Impact Teams, are 
part of, but not the entirety of the antigang strategy that we 
have pursued. ATF has been superb in handling, I think, more 
gun cases than we have ever handled before. They are part, but 
not the entirety of, the strategy.
    We try to do targeted grants using not only our own 
capabilities, but targeted grants at State and local entities 
that can work with us, so as to maximize the resources that we 
can bring to bear.
    Mr. Keller. And the COPS program, any thoughts?
    Mr. Mukasey. The COPS program is one of many programs that 
can be worthwhile, but was never meant to be perpetual. The 
point was to get police on the streets, have them effective, 
and then encourage State and local communities, as many of them 
have, to step forward and fund the increased forces that they 
have which are effective.
    Mr. Keller. Thank you. I wish I had more time to follow 
that last one up, but my time has expired. I thank you for 
being here, Attorney General Mukasey.
    Thank you, Mr. Chairman.
    Mr. Conyers. Linda Sanchez, Chair of Administrative Law and 
Commerce, and a Member of the Immigration Committee, from 
California.
    Ms. Sanchez. Thank you, Mr. Chairman, and thank you, Mr. 
Attorney General, for being here today. There are a number of 
different areas of questioning that I have, and I am going to 
try to get through them as quickly as I can.
    First off, in response to questioning before the Senate 
Judiciary Committee on July 9, about the allegations of 
selective prosecution of Alabama Governor Don Siegelman, you 
stated that there are--and I am quoting you here--``various 
avenues open for exploring those allegations, including having 
testimony on the subject.''
    Given your assertion about the ability of Congress to 
investigate the Siegelman matter through testimony, I am 
wondering, do you support Karl Rove's decision to ignore a 
congressional subpoena on July 10th and refusal to testify 
about his role in the Siegelman matter and other matters 
regarding the politicization of the Justice Department?
    Mr. Mukasey. As I understand it, Mr. Rove acted at the 
request of the President in response to an invocation of 
executive privilege. He has offered to meet with staff. He has 
offered to discuss the matter.
    Ms. Sanchez. But he has not offered to be under oath or be 
subject to transcript. And my understanding from prior court 
law--and I would expect an Attorney General to know this, as 
well--if the White House wishes to invoke a claim of executive 
privilege, the witness still has to present themselves before 
Congress and claim that privilege on a question-by-question 
basis.
    Mr. Mukasey. With all due respect, I think that is a matter 
that is currently being litigated on which I can't comment any 
further.
    Ms. Sanchez. But prior case law has held that that is the 
case.
    Mr. Mukasey. I don't know that. I know that that is a 
matter that is under active litigation, and is I believe sub 
judice before a judge in the District of----
    Ms. Sanchez. So you agree that Karl Rove can disregard a 
congressional subpoena if we wish to----
    Mr. Mukasey. What I am saying is, the question of whether 
an immediate adviser to the President has to appear at all when 
a proper claim has been made of executive privilege is a matter 
that I believe is actively before a district judge; and I 
shouldn't comment any further on that, and I won't.
    Ms. Sanchez. I think if you brush up on your case law, you 
will find that prior case law holds that not to be the case. 
And if we are talking about conversations that Mr. Rove had 
with others in the U.S. Attorney's office in Alabama, for 
example, in the Siegelman matter, not conversations with the 
President himself, I have a hard time seeing exactly how the 
claim of executive privilege can be asserted if it wasn't 
advice that was given to the President or direct conversations 
with the President.
    But apparently we disagree on that matter.
    On the issue of nonprosecution and deferred prosecution 
agreements, out of the 40 known corporate monitors that have 
been appointed in deferred or nonprosecution agreements since 
2000, at least 30 were Government officials and 23 were former 
prosecutors.
    Mr. Mukasey. Were Government officials at the time they 
were appointed?
    Ms. Sanchez. Previous Government officials, and 23 were 
former prosecutors. As I am sure you are aware, New Jersey U.S. 
Attorney General Chris Christie gave a multimillion-dollar, no-
bid contract, monitoring contract, to John Ashcroft, who was 
his former superior.
    I am wondering if you believe that all qualified 
individuals should have the opportunity to serve as a corporate 
monitor in an open and competitive bidding process. Or do you 
favor the selection of corporate monitors with no transparency 
and no accountability?
    Mr. Mukasey. With all due respect, we enacted or put into 
place in March of 2008, after consultation with the United 
States attorneys, a set of guidelines relating to the 
appointment of corporate monitors that assures precisely the 
transparency that I think you advocated, and it goes from the 
start of the process to the conclusion of the process.
    Ms. Sanchez. My understanding is those guidelines were 
issued on the eve before a hearing that we were holding on that 
very issue. I think that there was probably a strategic reason 
for trying to get them done before the hearing.
    Mr. Mukasey. Oh, gosh, I was unaware of the hearing. With 
all due respect----
    Ms. Sanchez. Furthermore, the guidelines have been 
criticized for lacking sufficient detail to really be of any 
significant use either to Federal prosecutors or to the 
corporations that were----
    Mr. Mukasey. Why don't we await the experience that we have 
using the guidelines and find out whether they work?
    Ms. Sanchez. Well, so far, we have not seen any instance of 
an open and fair and transparent process by which monitors are 
selected. It seems to be pretty much at the discretion of one 
person within the Department of Justice.
    Mr. Mukasey. It is not.
    What happens is what is required under the guidelines with 
regard to when you get to the point of selection----
    Ms. Sanchez. These are the new guidelines that just got 
enacted and got released.
    Mr. Mukasey. The new guidelines, correct.
    There is a panel of at least three people from whom the 
selection is made. That person has to be approved by the Deputy 
Attorney General, which assures uniformity; and the money that 
comes to fund somebody who serves in that position is paid not 
by the public, but by the corporation.
    Ms. Sanchez. We understand. But there are still questions 
to whom that monitor owes a duty: Is it to the Government? Is 
it to the people? Is it to the corporate monitor? That has not 
been spelled out in those guidelines, unless something has been 
revised since March.
    Mr. Mukasey. That monitor owes a duty to the duty that he 
undertakes to act in a fair, open and transparent way.
    The fact is that the Government people, ex-Government 
people, you mentioned put their reputations for fairness on the 
line every time they agree to do that.
    Ms. Sanchez. And they also are paid oftentimes very 
lucratively. I would just say this because my time has expired. 
We would love to get additional information regarding the use 
of non-prosecution and deferred prosecution agreements. We will 
look forward to that because so far we have not received all of 
the information that we have requested regarding those 
agreements, and we have written to you on several occasions to 
ask you to provide that information.
    So if you are saying here today that we should evaluate the 
cases where it is used and see whether the guidelines are 
working or not, we can only do that if we receive the 
information from your office.
    With that, I will yield back the balance of my time.
    Mr. Conyers. The Judiciary Committee will stand in recess 
for 8 minutes.
    [Recess.]
    Mr. Conyers. The Committee will come to order. The Chair 
recognizes the distinguished gentleman from California, Darrell 
Issa, who serves on the Intellectual Property Committee, the 
Constitution Committee, and the Task Force on Antitrust.
    Mr. Issa. Thank you, Mr. Chairman, and it is an honor to 
serve on those Committees with you.
    General, a couple of things, and before I get back to, if 
you will, this whole question of media, I would like to do just 
a couple of questions on executive privilege. Earlier Ms. 
Sanchez was asking about Karl Rove's failure to appear based on 
an assertion by the President of executive privilege. What 
useful purpose would it serve if he came here when the 
questions are likely to be specifically related to items he is 
prohibited from telling us? Other than to be a dog and pony 
show, can you name us a useful reason to have Karl Rove here?
    Mr. Mukasey. Congressman Issa, I don't want to get in the 
middle of a controversy as to what good would or wouldn't be 
served. I know that the President's immediate advisers are 
subject to his claims of privilege, and notwithstanding their 
own desire or ability to discuss issues, if they are told they 
ought not to get into matters that relate to their 
conversations with him or his ability to gather information, 
they can't.
    Mr. Issa. General, in your past experience, if you want to 
get to the truth, don't you usually try to get a written 
statement, sworn or unsworn, through requests for production? 
Isn't that a generally more effective way to do it and isn't 
that what you would normally recommend for the efficiency of 
any body, that they try to get the answers in writing rather 
than schedule people if the questions are known and the answers 
are unknown?
    Mr. Mukasey. I guess, again, I don't want to get in the 
middle of an intramural dispute here. There are various ways of 
gathering information, people use written interrogatories, they 
use live testimony. I am not demeaning the value of live 
testimony. There are many ways, as you point out.
    Mr. Issa. General, I didn't plan on asking these questions 
but since Ms. Sanchez did I thought I would try to make the 
record as complete as possible today because of your presence 
here.
    Mr. Chairman, I would like to ask unanimous consent to 
enter in the Record at this time a letter from Ranking Member 
Lamar Smith asking Mr. Luskin, who represents Karl Rove, 
whether or not he would answer some very specific questions 
related to the prosecution of Governor Donald Siegelman and 
then the accompanying answers in detail from Patton Boggs. 
Perhaps that would enlighten us, at least until we can get 
further answers from some other source.
    Mr. Conyers. Without objection, so ordered.
    [The information referred to follows:]
    
    
    

    Mr. Issa. Thank you. Having dispensed with at least 
questions and answers that do not assert executive privilege, 
General, you were unable to fully answer questions related to 
the current relationship of media leaks and how they affect 
national security earlier. I would like to give you an 
opportunity to do it, but I would like you to do it, if you 
would, also by commenting in your opinion both before and after 
you were the AG what the effects of organizations like the New 
York Times, and so on, leaking the most sensitive information 
have been as to the ability of us to conduct the war on terror 
and as to potential prosecutions.
    So I want you to fully answer how you feel we would, 
because you are saying to us show me a bill that I would sign, 
I am saying to you I fully agree that the leaks of classified 
information serving no purpose other than to take the most 
sequestered information, in some cases information that even 
some Members of the Intelligence Committee haven't received, 
and divulge them, has hurt this country. But I would like you 
to go from that and, if you will, tell us what we need to do in 
order to stop that while respecting the legitimate use of the 
press.
    Mr. Mukasey. I think, without going into detail or starting 
to criticize individual newspapers----
    Mr. Issa. I am not restrained from saying Eric Liplaw and 
the other people who leak national secrets, but I understand 
that you wouldn't.
    Mr. Mukasey. They ultimately get even by writing your 
obituary, so you have to be very careful.
    Mr. Issa. I am from a family of long livers.
    Mr. Mukasey. But when a statute and an obligation to 
disclose by the Government that electronic eavesdropping is 
going on can be tripped even without an attempt to get at 
confidential information such as where somebody who is under 
legitimate FISA surveillance or under title III surveillance 
makes a call to a reporter and that triggers an obligation to 
notify the reporter that he or she has been overheard on a 
wiretap and then stops the Government from using the fruits of 
that wiretap, that statute is seriously misconceived.
    I don't think that was the intention of the people who 
drafted the statute, but the law of unintended consequences 
operates just as much as the law of intended consequences, and 
sometimes in a lot more deadly fashion. That is one of many 
fashions in which it could operate under this bill.
    In addition, there are numerous crimes that are not 
included within the list of crimes that are subject to the 
exception for being able to get at sources. For example, child 
abuse is not one of the crimes that are listed, so that 
somebody could do an interview with a child abuser and be able 
to claim privilege.
    Finally, there is no way to compel a reporter, even when a 
balance is struck as between the public interest in disclosure 
against the interests in keeping information private, which is 
apples and oranges put before somebody who has no other 
standard, there is no way ultimately to compel a reporter to 
disclose. A reporter is just as free as he or she is now to say 
I am not going to disclose, I would rather take a contempt 
citation.
    There is no requirement, for example, that the information 
be put in the custody of the court and the matter then 
adjudicated with the information to be disclosed thereafter. 
The reporter retains the information. They are just as free as 
they are now to disclose it.
    It also creates a possible lack of uniformity, given the 
fact that this is a jump ball for however hundreds of many 
judges there are. Under current standards, uniformity is 
achieved by having these matters go up through the Justice 
Department and having them decided in a uniform way. As I said, 
it is a solution in search of a problem.
    Mr. Issa. Thank you.
    Mr. Mukasey. As currently drawn.
    Mr. Issa. Thank you. Hopefully that gives you a little more 
time to speak.
    Thank you, Mr. Chairman.
    Mr. Conyers. Bill Delahunt, Chair of the Oversight 
Subcommittee of Foreign Affairs and a Member of three 
Subcommittees on Judiciary.
    Mr. Delahunt. Thank you, Mr. Chairman.
    Mr. Mukasey. Good afternoon.
    Mr. Delahunt. Good afternoon, General. Earlier you 
discussed the issue of Guantanamo and used the word ``urgency'' 
to deal with the issues. I presume that sense of urgency also 
goes to the 45 detainees who are currently at Guantanamo who 
have been cleared for release by the Department of Defense.
    Mr. Mukasey. You are talking about the Uighurs?
    Mr. Delahunt. I am talking about 45, including the Uighurs, 
detainees who the Department of Defense has cleared for release 
who are still being detained at Guantanamo.
    Mr. Mukasey. If there are in fact 45.
    Mr. Delahunt. Let me suggest that 45 list was given to 
Judge Hogan on this past Monday.
    Mr. Mukasey. I have no doubt that it is accurate. The fact 
remains that we are not allowed to release people unless we can 
find countries that are willing to take them with the assurance 
that they will not be abused when they get to those countries. 
And the State Department has been making heroic efforts at 
placing people, and it has been thus far fairly successful. The 
list has been sweated down from 775 to something in the 
neighborhood of 260.
    Mr. Delahunt. There are 270-plus detainees currently at 
Guantanamo.
    Mr. Mukasey. I think there are slightly fewer than that. In 
any event.
    Mr. Delahunt. But we find ourselves in a position as a 
Nation where we are detaining at least 45 individuals who have 
been cleared for release. You indicated that you would object 
to having those individuals or any individual repatriated to 
the United States?
    Mr. Mukasey. Yes.
    Mr. Delahunt. Okay. Let me again go to the issue----
    Mr. Mukasey. Because the reasons why they have been cleared 
for release did not necessarily go to what havoc they could 
cause if they came here. They go through a whole lot of things.
    Mr. Delahunt. Other countries where they can create havoc?
    Mr. Mukasey. No. Other countries where they could not.
    Mr. Delahunt. Could not create havoc. That havoc will be 
limited by geographical boundaries.
    Mr. Mukasey. It doesn't necessarily mean those people who 
were picked up by mistake or that they have been ceased to be 
dangerous at all.
    Mr. Delahunt. The Department of Defense is willing to 
release them if they are still dangerous?
    Mr. Mukasey. The Department of Defense is willing to 
release them under controlled conditions if they can be put in 
places where they won't cause us additional harm. The 
Department of Defense has leaned over backward, and in some 
cases we have all lived, and a couple of us have died, to 
regret it.
    Mr. Delahunt. With all due respect, these 45, I dare say, 
if we should release them and they are still dangerous, we are 
doing a disservice to those of our allies that would be willing 
to accept them. But having said that, I want to get to the 
issue of assurances.
    Earlier, you and Congressman Watt had a colloquy about a 
case involving the Director, the FBI Director, in which you 
didn't have any particular knowledge. Just yesterday we 
received a letter that I had authored, along with the Chair, 
Mr. Conyers, and Mr. Nadler, regarding the case of Maher Arar. 
You responded that you did not believe that it warranted the 
appointment of a special prosecutor.
    Mr. Mukasey. I think you left out a phrase.
    Mr. Delahunt. Well, give me the phrase I left out.
    Mr. Mukasey. At this time.
    Mr. Delahunt. At this time. Thank you then. Because we have 
inspector generals that have stated that in their opinion the 
assurances were of such a dubious nature that one of them, Mr. 
Irwin, interpreted it to be that there could have been, and I 
am not suggesting that is the case factually, but there could 
have been an intent, and these are his words, an intent to 
render to Syria rather than Canada because there was a 
knowledge or a likelihood of torture. If that doesn't trigger, 
in my judgment, the need for a special prosecutor, I can't 
imagine what would.
    Having said that, and having looked at your letter, are you 
prepared after your review, pursuant to our letter, that there 
was sufficient assurances from Syria that warranted the sending 
or the rendition of Mr. Arar to Syria as opposed to Canada?
    Mr. Mukasey. I am not certain I understand the question. I 
am really not. You say are you prepared, assuming that I 
believe there was sufficient assurances, am I prepared to do 
what?
    Mr. Delahunt. Are you prepared to say that there were 
sufficient assurances on the part of individuals in the 
Government that emanated from Syria to meet the standards of 
the Convention Against Torture and our own domestic legislation 
to render Mr. Arar to Syria rather than his stated preference, 
which was Canada?
    Mr. Mukasey. So far as I am aware, there was a classified 
briefing available to the authors of that letter as to what 
assurances were received. There can't be any change in the 
nature of what assurances were received. Things happen one way. 
Either assurances were received or not, and they were received 
in a particular way or not. But there was, I believe, a 
classified briefing to all three, or available to all three 
authors of that letter.
    Mr. Delahunt. Well, it was available. I did not attend the 
classified briefing because I didn't want to be in a position 
to inadvertently discuss it in a public venue. But I presume 
that assurances that would be relied on by the United States 
Government would be of such a nature that they would come from 
high ranking officials in the United States Government, 
particularly from a nation that has been described by the 
President as a practitioner of torture.
    Mr. Mukasey. They were provided. I don't want to get into 
classified information either. And so I won't. Assurances were 
received by the United States Government. That is all I am 
prepared to say in this setting.
    Mr. Delahunt. Mr. Attorney General.
    Mr. Mukasey. I also find it somewhat unlikely that somebody 
would hope to get anything out of anything that went on in 
Syria, given the history that you pointed out. So the 
likelihoods kind of point the other way.
    Mr. Delahunt. Well, let me express my gratitude for you 
making that statement. I am still trying to figure out why Mr. 
Arar was sent to Syria.
    Mr. Mukasey. He was a joint Canadian-Syrian national. 
Sending him to Canada could have posed a danger to this 
country. Sending him to Syria was safer, provided we got the 
assurances, and it is my understanding that we did.
    Mr. Conyers. The Chair recognizes the distinguished 
gentleman from Indiana, Mike Pence, who serves on the 
Intellectual Property and the Constitution Subcommittees.
    Mr. Pence. Thank you, Chairman, and Mr. Attorney General, 
welcome to the Judiciary Committee. Let me take the opportunity 
to thank you for your exceptional leadership on the recent 
bipartisan compromise on the Foreign Intelligence Surveillance 
Act. You played an instrumental role in achieving a legislative 
accomplishment that I believe contributes greatly to our 
national security.
    As you might suspect, since we have debated it in one of 
the largest newspapers, I want to focus my attention on an 
issue on which we disagree, H.R. 2102, the Free Flow of 
Information Act. You have commented about it earlier, and I 
want to take the opportunity to raise some issues and pursue a 
line of questioning, but I do so with great respect.
    This legislation was introduced about 3 years ago by myself 
and my Democrat colleague, Congressman Rick Boucher. You have 
made your opposition very clear in this testimony today and in 
your public statements.
    Your written testimony says that the bill ``would endanger 
national security by making it nearly impossible for us to 
investigate leaks of even the most sensitive national security 
information.'' I am very aware of that. That kind of a strong 
pronouncement may be somewhat jarring to a Committee that very 
strongly endorsed this legislation and to a Congress that voted 
398-21 on October 16, 2007, to endorse this bill.
    I want to point out for the record to the Attorney General 
that this was supported by the Republican and the Democratic 
leadership. It was also supported by the Ranking Members of the 
Intelligence Committee and the Armed Services Committee and the 
Chairmen of those Committees. I think it was supported 
precisely because we did endeavor to deal thoughtfully and 
carefully with precisely the issue that seems to be the focal 
point of your objection; namely, concerns about national 
security.
    As you are aware, in the legislation in the House version 
of the bill we only provided a qualified privilege for 
journalists and made national security the leading reason for 
which the shield could be pierced. Our legislation permits 
compelled disclosure to prevent or identify the perpetrator of 
an act of terrorism against the United States and prevent 
significant and specified harm to national security.
    And you made reference to a child abuse exception not being 
included in the bill. I would think that would be probably 
included by inference in the bodily harm exception in our bill, 
but I know the Senate includes child abuse in their 
legislation, and I am open to it.
    It also allows compelled disclosure of sources in cases 
that involve the authorized disclosure of properly classified 
information that caused or will cause significant or 
articulable harm to national security.
    I think the inclusion of that very careful structure that 
does at a point call upon our judicial branch to exercise 
discretion, balancing our interest in national security with 
our interest in preserving the liberties upon which this Nation 
was founded, seems to be a focal point of your concern.
    But I want to begin by assuring you, General, that as the 
Congress tried to fulfill its role in addressing both our 
national security, as well as preserving what we are trying to 
secure, that we did so in a way that made national security 
interests truly paramount, which of course comes to no surprise 
Congress would act in this case.
    As you know much better than I, being an authority in the 
law, in 1972, the Branzburg case, Justice White virtually 
invited Congress to develop a Federal media shield statute, 
saying that Congress had ``the freedom to determine whether a 
statutory newsman's privilege is necessary and desirable and to 
fashion standards and rule as narrow and broad as deemed 
necessary.''
    I guess my question would be, with a little latitude from 
the Chairman to give you a chance to respond, is you made the 
comment today that 10 angels swearing on bibles wouldn't change 
your mind.
    Mr. Mukasey. That is not what I said. I said wouldn't 
change what is in the bill.
    Mr. Pence. Wouldn't change what is in the bill. Let me say 
if 10 angels swearing on bibles wouldn't change your view of 
this bill, would 40 American journalists subpoenaed, questioned 
or held in contempt do it?
    I mean you said this is a problem or a solution in search 
of a problem. The Justice Department has argued that it has 
only approved 19 source-related subpoenas since 1991. However, 
the number does not include the number of subpoenas issued for 
non-source information. Also, since 2001, at least 19 
additional journalists have been subpoenaed by both Federal and 
special prosecutors, and you yourself know the Department of 
Justice guidelines do not apply to civil litigants or special 
prosecutors.
    I would say this is not a solution in search a problem, 
this is a constitutional statutory response to a rising erosion 
of our first amendment freedom of the press.
    Let me make one last point, if I may, at the Chairman's 
indulgence. I must express some disappointment at the fact that 
I in my 3 years as a working legislator on this issue, and most 
of that time you were not in your present role so I don't 
direct this to you, as you speak about the need for language, I 
don't believe the Justice Department has offered any language 
to this Committee relative to what would be an acceptable 
version of a Federal media shield statute.
    My question would be, recognizing that, as you said in your 
testimony, the Administration has a ``constitutional 
responsibility to safeguard classified information,'' and I 
know you recognize the Administration also has a constitutional 
responsibility to protect the Constitution and the first 
amendment freedom of the press, can we anticipate, as the 
Senate may well be taking this bill up in the coming days, may 
we anticipate a more constructive engagement from the Justice 
Department in fashioning this legislation in a way that meets 
both the interests of our liberty and our security, or should 
we continue to anticipate as legislators what I would 
characterize as the strident opposition of the Justice 
Department to creating the statutory newsman's privilege that 
the Supreme Court acknowledged could be created 36 years ago?
    Mr. Mukasey. I guess I am going to ask for both latitude 
and longitude from the Chair. Say a minute or minute and a half 
to respond to the 6 minutes or so that I just heard.
    First, three points. First of all, I am not questioning 
anybody's good faith in the drafting of this legislation, 
Congressmen or anybody else, but I think it is possible to have 
a disagreement in good faith.
    Mr. Pence. So do I.
    Mr. Mukasey. Let's focus on two of the points that you just 
mentioned. One, which was a showing that the information was 
properly classified. That raises a host of problems. We are 
talking about procedurally, substantively. Does that require 
the Government to come in and disclose yet more classified 
information to show that the classified information was 
properly classified.
    A closely related problem is the showing that the danger 
exceeds the value of disclosure. Passing for a minute the fact 
that that is a complete imponderable, totally imponderable, 
that would require the Government to come in and basically make 
a bad problem worse by articulating precisely how threatened 
disclosure could cause yet more harm. I don't think that is a 
solution.
    Now, as I said, I am willing to talk to anybody who will 
talk to me, but we have in place a system that closely 
restricts the ability to subpoena reporters and the ability to 
subpoena source information. I think that system has proved 
adequate. I am willing to talk to anybody who thinks it hasn't. 
But what I am not willing to do is to take steps that will 
essentially do more to protect leakers than it does to protect 
journalists.
    Mr. Pence. Thank you, General. I thank the Chairman for his 
indulgence.
    Mr. Conyers. The Chair recognizes Steve Cohen of Tennessee, 
who serves on the Commercial and Administrative Law 
Subcommittee, as well as Intellectual Property.
    Mr. Cohen. Thank you, Mr. Chairman. General, I appreciate 
your taking this position and improving the image of the 
Justice Department in the Nation's eyes. I appreciate your 
looking into the issue we talked about during the break with 
the football stadium in Memphis.
    Mr. Mukasey. Which I will.
    Mr. Cohen. Thank you. The University of Michigan has, I 
think, about the same number of seats we do, but they have 
100,000 thousand people per game and we have 25,000. That is 
somehow to be factored in.
    Mr. Mukasey. Sorry to see there is less interest in your 
team than the University of Michigan.
    Mr. Cohen. We have emphasized academics more, I guess.
    Mr. Conyers. The gentleman's words will be taken down.
    Mr. Cohen. Yes, please.
    Paul Minor, an attorney from Mississippi, is in prison now, 
and we have discussed his case. There is some thought that he 
might have been--politics might have influenced his 
prosecution. Without getting into the bases of the facts, and I 
know there have been allegations of prosecutions in other 
cases, Mr. Minor has an appeal, which I think the Office of 
Professional Responsibility is looking into. But at the present 
time he is seeking a release, temporary release pending his 
appeal because his wife is dying of cancer and she may be, I 
believe, in her final months.
    I would just like to ask you for an assurance that you will 
personally review the matter and make sure that within the 
parameters that are possible you could take into consideration 
the facts that led to his conviction and the particular 
situation with his wife.
    Mr. Mukasey. Well, if OPR is conducting an inquiry, and I 
believe they are, then I think I will await, and have to await, 
I should await the outcome of that because I may be called to 
act in response to it. So far as the other situation, as I 
understand it, and I don't know precisely, I know the BOP has 
the humane release program that relates to the illnesses of 
prisoners. I don't know whether they have a humane release 
program that relates to relatives of prisoners or how close he 
is to the release date. I can try to make inquiry as to what 
the precise situation is.
    Mr. Cohen. Thank you. I think he is nowhere near the 
release date, and I think possibly a review of the policies 
because if somebody's spouse is dying----
    Mr. Mukasey. There have been situations in which people 
have been taken from custody for visitation and so on. I don't 
want to get too far ahead of the curve, but I have encountered 
that as a district judge. Let me find out what the policy is.
    Mr. Cohen. Thank you, sir.
    You mention in your testimony that violent crime remains 
near historic lows in the United States. That is the quote. Am 
I reading this----
    Mr. Mukasey. There have been spikes in certain areas, I 
recognize that. Violent crime is down something like 1.6 
percent, which sounds like a modest number, but that is a lot 
of people who haven't been victims.
    Mr. Cohen. That can't be historic lows. Crime is really 
pretty high right now.
    Mr. Mukasey. I am not familiar with crime statistics from 
the founding of the republic to today. I believe that that was 
something of a metaphor. It is low by current standards. That 
is not to say that it is tolerable.
    Mr. Cohen. My City of Memphis has a high crime problem and 
violent crime is high there and people would not ever think it 
is not. You have programs that are excellent concerning Project 
Safe Neighborhood, and you mention you will be offering 
regional training throughout the United States. What is the 
process by which the City of Memphis, Tennessee, and the Ninth 
Congressional District could participate in one of those 
regional opportunities?
    Mr. Mukasey. Localities essentially compete based on a 
showing of need and showing of their ability to use the 
resources along with Federal authorities. I know there is a 
tenth site program relating to gangs, and if I can find it in 
my notes, I can find out whether Memphis is one of those 
locations
    Mr. Cohen. I don't think it is, from your notes. If it is 
possible you can consider Memphis, we certainly need the help, 
and if I could push it along I would be happy to.
    You mentioned on Mr. Wexler's question about the Vice 
President, you said in the abstract, No, he would not have 
executive privilege extended to him. Can you go a little 
further with that? Mr. Addington was here and said that Vice 
President Cheney was not either the executive or legislative, 
he was basically a barnacle attached to the legislative branch. 
Why do you see him floating and why would he not--does he have 
executive privilege?
    Mr. Mukasey. It is my own belief that the Vice President is 
a member of the executive branch. I know that there has been a 
discussion about where his office is located and lots of sort 
of abstract debate about that. The Vice President is obviously 
one of the closest advisers to the President and he is a close 
adviser to the President within the executive branch. That, in 
my view, is where he sits.
    Mr. Conyers. The gentleman's time has expired.
    Mr. Mukasey. Abstract theory of whether there is or isn't a 
barnacle status.
    Mr. Cohen. In the tradition of Congress, since my time has 
expired, I will yield the remainder of my time.
    Mr. Conyers. The Chair recognizes Randy Forbes of Virginia, 
former Ranking Member of the Crime Subcommittee, now on 
Immigration and the Crime Subcommittee.
    Mr. Forbes. Thank you, Mr. Chairman. Mr. Attorney General, 
thank you so much for being here. I want to compliment you 
today for handling such a host of issues. I just kind of jotted 
them down today. Today they have tested you on oil speculators, 
mortgage lenders, terrorists, spies, illegal immigration, 
espionage, airline mergers, torture, and you have done just a 
remarkable job of trying to marshal all that.
    I also know that you have a lot on your plate in terms of 
having to deal with all these issues around the country, and 
from time to time you have to allocate your resources. One of 
the issues that came up today was gangs. We have got about 
850,000 criminal gang members, depending on what statistic you 
look at, across the country. Obviously we have to allocate 
resources, especially from the Federal level, in dealing with 
gang violence. One of the particular tickups probably in crime 
today might be gangs if we had any that we are looking at.
    The statistics we have had come before our Committee so far 
is that if we looked at the most violent criminal gang in the 
country today, it probably would still be MS-13. Is that a fair 
assessment?
    Mr. Mukasey. They are pretty close. Part of the problem is 
that they seem to be in it, oddly, for the violence, not 
entirely for the money.
    Mr. Forbes. One of the things that has been bad is not only 
have they done the violent acts, but they tend to give a 
copycat to so many other gangs to try to catch up to them. The 
other statistic we have had on MS-13, for example, has been 
that, with testimony, we have had as much as 75 to 85 percent 
of their members could be here illegally in part of those 
gangs. I don't ask you to master those statistics today, but 
that is at least what we have had presented to our Committee. I 
assume it is kind of a ballpark.
    Mr. Mukasey. It would not surprise me.
    Mr. Forbes. My question is if we have the most violent 
criminal gang, one that is kind of being a pattern and copied 
by other gangs of MS-13, 75 to 85 percent of whose members are 
here illegally, if at some point in time, and I don't expect 
you to have this information with you today, but at some point 
in time if you could give us any information your office has 
on, one, how those individuals go from crossing the border to 
joining those gangs; number two, if there are any prevention 
programs out there that have a proven record, not just an 
anecdotal record but a proven record of stopping those 
individuals from joining the gangs because at least what I have 
seen is that prevention programs might work in other areas. But 
if you are coming in here illegally, those programs aren't 
reaching that 75 to 85 percent, but perhaps you have some that 
you can suggest. Obviously we want to allocate our dollars 
where they best go.
    The final thing though is: Is there evidence that going 
after those gang networks does have an impact on reducing the 
gang violence, because we are trying obviously to allocate our 
resources at the best possible way, just like you are trying to 
do?
    Mr. Mukasey. I think there is. I was down in, I think, 
South Carolina, where they announced the roundup of a huge 
number of MS-13 gang members and we had with us a police chief 
from El Salvador from which that gang is supervised and which 
cooperated in the roundup and in the intelligence.
    So we find that when we cooperate not only with State and 
locals, who were at that press conference as well, but also 
with our international partners, specifically in the case of 
MS-13, Mexico, Honduras, El Salvador and Guatemala, which is 
where a lot of them are at, we find that we can have much 
greater effect.
    Mr. Forbes. When you do that, we have at least had some 
testimony before the Committee that the subsequent gang 
violence does reduce down after you have taken some of those 
networks out. Is that fair to say?
    Mr. Mukasey. It is definitely fair to say, and we expect it 
to drop in that particular location as well.
    Mr. Forbes. Mr. Attorney General, I just leave you with, 
not for today, but if anybody on your staff has any prevention 
programs that have been shown to work for those people coming 
in illegally, if you could get them to us. I just haven't seen 
any. If you have any, if you can present them to us.
    Mr. Mukasey. I will get what I can.
    Mr. Forbes. Mr. Chairman, I yield back.
    Mr. Conyers. Thank you. We will have one more Member ask 
questions before we recess for four votes, and that is Adam 
Schiff, a former Assistant United States Attorney from 
California, who serves with distinction on the Intellectual 
Property Committee.
    Mr. Schiff. Thank you, Mr. Chairman. Thank you, Mr. 
Attorney General, for spending the afternoon with us.
    I will follow up with your office on a couple of issues 
that we have discussed earlier involving DNA evidence and some 
of the issues raised in Arizona. But I had the opportunity 
during your remarks to read your speech at the American 
Enterprise Institute on principles in dealing with the 
Guantanamo detainees and would like to follow up on a couple of 
points that you made in your speech.
    First of all, I wanted to mention that I made several 
efforts with your predecessor and his predecessor to get the 
Administration and Congress working together to set detainee 
policy. I appreciate your outreach to the Congress and 
encouragement that the Congress set these rules rather than 
have the courts decide. I think that makes a great deal of 
sense and would help us avoid a patchwork of court decisions 
that take up a lot of time and don't bring us any closer to a 
good result.
    But two of the questions I have, the first is you make a 
point I think in your conclusion that people at Guantanamo--you 
take issue with the idea that people should be charge or 
released. I think the issue that that raises is if you don't 
charge people at Guantanamo and if there is a category of 
people not charged and yet not released, what is their status? 
How do you define what legal rights should attach to a group 
that has not been charged with a crime and yet, your argument, 
should not be released?
    One of the arguments that I have been making with the DOD 
and DOJ for some years now, and I introduced a bill in 2002 to 
adopt or adapt the Uniform Code of Military Justice to be used 
at Guantanamo, couldn't we establish a baseline offense of 
being an unlawful enemy combatant such that there would be 
something that everyone could be charged at if there is the 
evidence to support it so that you don't have this conundrum of 
having people who are not charged and not yet released?
    Mr. Mukasey. I guess we could. The people who are detained 
there are, as far as I know, uniformly were people who fit the 
classic definition of an unlawful combatant; that is, not 
fighting in uniform, not carrying their weapons openly. They 
did not target only military targets but rather targeted 
civilians and were not bound by the laws of war.
    So, yes, we could establish such a regime. But the fact is 
that we detained thousands upon thousands of prisoners of war 
who were legitimate detainees during World War II. Not one of 
them, not one of them was permitted to file a habeas petition. 
They were all held for the duration, notwithstanding they had 
done nothing, other than----
    Mr. Schiff. I understand that, but the problem you also 
point out is that those wars had an end that you could see 
coming at some point.
    Mr. Mukasey. You couldn't always see it coming. You 
couldn't see it coming in 1942, 1943. We had people in custody 
at this time.
    Mr. Schiff. I think even then you could see that the war 
would end. This is a war of a different caliber, which may go 
on indefinitely. As you point out, there may never be a VT day, 
Victory over Terrorism day. The fact that these questions are 
difficult doesn't mean they are going to go away, and I think 
that we need to grapple with them. I would just encourage the 
Department to consider a situation where people are charged.
    I want to give you more time on that, but I want to throw 
out my second question, too, so I don't lose the opportunity to 
ask you about it, and that is I think you make some very good 
suggestions in the six points you make. One of the suggestions 
you make though may be problematic for a couple of reasons, and 
that is the idea that the courts should be prohibited from 
releasing people in the United States--not just being released 
but being brought to the United States for testimony or court 
proceedings. That presupposes Guantanamo doesn't close. We have 
two presidential candidates, both who have said Guantanamo 
should close.
    Would it be wise for us to enact a law that says you can't 
bring people to the U.S. for court proceedings if in fact both 
candidates for the presidency intend to close Guantanamo?
    Mr. Mukasey. I think they both say, and I am not purporting 
to be expert on all of their pronouncements, which have at 
times varied from one another, both within each camp and 
between the camps, but I don't think anybody says just close it 
off, turn off the lights and go home. I think they said you 
close it responsibly, and responsibly means just that.
    Mr. Schiff. Well, I certainly agree with that, but that 
doesn't ultimately answer the question of what do you do with 
the people in Guantanamo if you have established a law that 
says you can't bring them for legal process to the United 
States?
    Mr. Mukasey. One of the things I was going to say before is 
you have an ongoing obligation, an ongoing ability to assess 
the dangerousness of each particular person you have got. But 
all of them are aliens who were caught abroad under 
circumstances in which they were in combat with either U.S. 
troops or those with whom we fight or were supporting those in 
combat with U.S. troops.
    Mr. Conyers. The gentleman's time has expired. The 
Committee stands in recess.
    [Recess.]
    Mr. Conyers. The Committee will come to order.
    The Chair recognizes Judge Gohmert, who serves with 
distinction on the Immigration and Crime Committees and is the 
acting Ranking Member of the full Committee.
    Mr. Gohmert. Thank you. I appreciate your not saying I was 
the rankest Member on the Committee.
    But, Attorney General Mukasey, thank you for being here. 
Thank you for the class you do bring to the office--no 
disparagement of anybody that served before you. But I know it 
is tough, as a former judge, for you to sit through so many 
questions and be thinking you just need to be ruling that that 
is immaterial, that is irrelevant, that is multifarious, that 
is repetitious, and not having that opportunity to get things 
in order. I know it is difficult, but you have done well, and 
we appreciate it.
    A couple of things I wanted to touch with you on. One of 
them, going back, of course, we have had a case saying that 
raid was apparently improper, and this was before your time, 
and it is ongoing litigation; I wouldn't ask you to comment on 
that anyway.
    But as far as procedure, I recall reading an 80-page 
affidavit in seeking to make the raid on Congressman 
Jefferson's office. There was a description of a procedure 
where within DOJ there is some group or division that is set up 
to do an analysis for things that may be protected or 
privileged.
    Is that your understanding of how that process works? If 
there is something that may come out privileged or protected in 
order to keep from tainting the rest of the evidence, do you 
have a firewall capacity there?
    Mr. Mukasey. We do. I mean, it happens frequently in cases 
where certain information has to be walled off from other 
lawyers working on a case. That is not uncommon. I don't know 
of any particular division within the Department of Justice 
that is devoted to that, but it wouldn't surprise me that, in a 
particular case, some group of lawyers would be lawyers to whom 
the material would be disclosed so that it wasn't disclosed to 
others.
    Mr. Gohmert. And that would, I guess, be in an effort--I 
understand some civil firms do this, where they have a group 
where there is a firewall and they make sure information 
doesn't pass to the other side if it is privileged, and you 
keep those groups separate on a given case. Is that correct?
    Mr. Mukasey. Yes.
    Mr. Gohmert. Anyway, I had been asked about that, and I 
appreciate you clarifying that.
    But going back to the Guantanamo case and the Boumediene 
case, I know Justice Scalia had said in his dissent, 
``Henceforth, as today's opinion makes unnervingly clear, how 
to handle enemy prisoners in this war will ultimately lie with 
the branch that knows least about the national security 
concerns that the subject entails.''
    And then, of course, Chief Justice Roberts had indicated 
that the Detainee Treatment Act of military tribunal hearings 
followed by Article III review looks a lot like the procedure 
the Hamdi case blessed. If nothing else, it is plain from the 
design of the DTA that Congress, the President and this 
Nation's military leaders have made a good-faith effort to 
follow our precedent. The court, however, will not take yes for 
an answer.
    And, again, in Justice Scalia's dissent, he said, quoting 
again, ``In short, the decision is devastating. The game of 
bait-and-switch that today's opinion plays upon the Nation's 
commander-in-chief will make war harder on us. It will almost 
certainly cause more Americans to be killed. That consequence 
would be tolerable if necessary to preserve a time-honored 
legal principle vital to our national or constitutional 
republic, but it is this court's blatant abandonment of such a 
principle that produces the decision today.''
    There were many of us that believed that, based upon the 
Hamdi decision and the Hamdan decision in 2006, that Congress 
had acted in good faith; we had done as the Supreme Court 
directed. I had serious concerns about the executive branch 
being able to formulate what military tribunals would be used. 
I had concerns about that as an executive branch function. But 
once Congress did it, it certainly seemed to be in line with 
what the court had previously ruled.
    So it appears to me, just like Justice Scalia said, we have 
a branch, the judiciary, the Supreme Court, that really wants 
to involve itself in both the executive and legislative effort 
here.
    I don't know if we will have a chance to take this up and 
discuss it, put forth legislation before the end of the year. I 
know time is short. But I do have a bill here that I intend to 
file in the next few days that will basically provide for the 
transport of the enemy combatants detained at Guantanamo Bay, 
Cuba, to Washington, D.C., where the Chief Justice of the 
Supreme Court will assist the other Justices in order to more 
effectively micromanage the prisoners being detained. Of 
course, there can be no better way for the U.S. Supreme Court 
to micromanage than if they are there on the ground, using the 
same restaurant facilities and taking care of them there.
    My time has run out, but I want you to be aware that we are 
trying to deal with it from this side too, to help the Supreme 
Court in their efforts to micromanage.
    Mr. King. Mr. Chairman, I would ask unanimous consent that 
the witness be allowed to respond.
    Mr. Conyers. Without objection.
    Mr. Mukasey. I can't really comment on that. The Boumediene 
decision is the law of the land, and my speech was based on our 
going ahead and accepting it as the law of the land. I am going 
to limit my comments to that. Thank you.
    Mr. Gohmert. I didn't wish to demean the decision, 
necessarily. Maybe I am being tongue in cheek in saying that. 
But I have to take it as lawful too, because I believe in the 
Supreme Court's power. So that is why I was going to file that 
bill, to assist them in furthering that ambition.
    Mr. Conyers. The Chair recognizes Artur Davis, a former 
Assistant United States Attorney, who serves with distinction 
on the Immigration, the Crime and the Constitution 
Subcommittees of Judiciary.
    Mr. Davis. Thank you, Mr. Chairman.
    Attorney General Mukasey, good afternoon to you.
    I have two areas I want to touch on, and because of time 
limits, I will try to move to both of them in an expeditious 
fashion.
    The first one has to deal with a matter that Ms. Sanchez 
raised with you and that I raised with you in our phone call 
yesterday, the Siegelman prosecution in the State of Alabama. 
As you know, there have been a number of questions raised about 
possible political influence in that prosecution. I want to 
touch on something that has not been raised publicly, though, 
in any other forum, and this is the context for it.
    As you perhaps know, there were e-mails that surfaced after 
the trial, after the conviction, which suggested that various 
jurors, two in particular, had engaged in misconduct, that 
there had been deliberations outside of the jury room, that 
they had consulted the Internet and done research and engaged 
in various other conduct that I think you, as a former judge, 
would certainly characterize as improper.
    Over a period of time, for a number of months, there were 
motions filed with the District Court urging a new trial. There 
was a protracted dispute over whether or not--could I ask my 
colleague to finish her conversation outside, actually? Would 
you mind? I didn't mean to interrupt you.
    But there were a series of hearings back and forth and a 
series of arguments back and forth on whether or not there 
ought to be some kind of evidentiary hearing. The Government 
took the position that an evidentiary hearing had to be very 
limited in nature. And this went on for a number of months.
    In July of this year, the Chief of the Appellate Section of 
the Criminal Division of the Department of Justice, Ms. 
Stemler, notified defense counsel that she had just learned 
that while the district judge, Judge Fuller, was considering 
some of the various motions for a new trial and the motions to 
reconsider for a new trial, that the district judge had had an 
ex parte communication with the U.S. Marshals Service.
    If I understand the facts correctly, the U.S. Marshals 
Service had been instructed by the U.S. Attorney's Office to 
conduct its own investigation of the authenticity of the e-
mails. The U.S. Marshals Service reached the conclusion that 
the e-mails were not valid, and apparently shared that 
conclusion with the district judge while some of the motions to 
reconsider were going on.
    Now, you were a district judge, and a very distinguished 
one, Mr. Mukasey. Would there have been any circumstance in 
which you would have allowed yourself to have a communication 
with a branch of the Government, the U.S. Marshals Service, of 
an ex parte nature, while you were considering a motion?
    Mr. Mukasey. Let me just take a step back. You were kind 
enough to point out that letter yesterday, and I appreciate 
that. I read the letter. I read it, the facts, somewhat 
differently.
    What happened was the jurors' coworkers got copies of the 
letters that were already before the judge. They turned them 
over to the jurors. The jurors turned them over to the 
marshals. The marshals didn't know what to do with them and 
turned them over to the U.S. Attorney's Office. And they gave 
them--since they had been sent by mail, they gave them to the 
Postal Service. And then the U.S. Attorney who was involved in 
the prosecution turned the whole matter over to somebody else 
who was not at all involved. And the Postal Service reached 
whatever conclusions they reached, apparently told the Marshals 
Service about it, and the Marshals Service told the judge about 
it.
    Mr. Davis. Well, let me just quote one sentence from the 
letter. On page 2 of Ms. Stemler's letter she says, quote, 
``While the investigation was ongoing in early April 2007, 
after the second evidentiary hearing on November 17, 2006,'' 
but I will add parenthetically while various other motions 
related to the same matter were being considered, she says, 
``representatives of the United States Marshals Service 
apprised Chief Judge Fuller that the postal inspectors were 
investing the receipt of e-mails, and they concluded that the 
purported e-mails were not authentic. The marshals who spoke to 
Chief Judge Fuller have advised us that the chief judge did not 
solicit this report.''
    So I understand there was a lengthy procedural sequence 
here, and there were multiple motions to reconsider, but they 
all touched on the underlying question of these e-mails.
    So I ask again, when you were a U.S. district judge, would 
there have been any instance in which you would have allowed 
yourself to have an ex parte communication with a branch of the 
Government while a motion was going on?
    Mr. Mukasey. There were times when I got ex parte 
communications from branches of the Government for good and 
proper reasons. I don't know what the reason was here, and I 
don't know whether the judge had any choice about whether to 
listen.
    Mr. Davis. Well, would it trouble you, though, Attorney 
General Mukasey, because, again, this is an important matter--
--
    Mr. Mukasey. It is important, and I would like to finish.
    I don't know what role those copies of e-mails played in 
the larger matter that is under review by OPR, so I can't--I 
mean, I am going to get a report from OPR at some point about 
this whole matter. I may be called on, if there is a finding of 
misconduct, to pass upon whether there ought to be a sanction 
against somebody or not and, if so, what it ought to be. So I 
can't really start offering opinions about it.
    Mr. Davis. I understand. But let me just narrow in, so we 
are at least clear on what the alleged facts are.
    The very subject of these hearings was whether or not the 
e-mails were authentic and whether or not they influenced the 
jurors. You can't get to inquiry B without getting to inquiry 
A. So it was very much at issue whether or not the e-mails were 
authentic.
    And what troubles me is the notion that the Government 
asked the Marshals Service, who then asked the postal 
inspectors, to conduct an investigation of their authenticity, 
didn't share that fact with defense counsel, shared it with the 
judge. Because it raises, Attorney General Mukasey, the obvious 
question, whether the judge's rulings might have been 
influenced by information that he had that wasn't available to 
defense counsel.
    Mr. Mukasey. I don't know what the basis was for the 
judge's rulings. I haven't seen those.
    As you know as a former assistant, there is an enormously 
heavy presumption against undermining the validity of a jury 
verdict. All kinds of things have been shown or testified to 
about what jurors did or didn't do during deliberations that 
have not resulted in the overturning of a verdict.
    I don't know what the basis was for the judge's ruling here 
or how it would fit into the grander story.
    Mr. Davis. Let me ask another quick question. Ms. Stemler 
disclosed this information on July 8th of this year. Do you 
know the circumstances in which Ms. Stemler learned about these 
ex parte contacts?
    Mr. Mukasey. I do not.
    Mr. Davis. Have you had a chance----
    Mr. Mukasey. I mean, it appears to indicate that she came 
upon it by happenstance during the course of her review of the 
documents. And she, as she put it in the letter, in an excess 
of caution, disclosed them.
    Ultimately, as the letter makes apparent, it was the 
Justice Department that disclosed it.
    Mr. Davis. Well, the concern, again, would be this: One 
year after this ex parte communication, 1 year and 3 months 
after the ex parte communication, apparently the Marshals 
Service disclosed it to the Government, which would raise the 
obvious question whether the Marshals Service has disclosed all 
they know to the Government now.
    I am certain Ms. Stemler has made representations that she 
knows to be accurate, but it would raise the obvious question 
as to whether Ms. Stemler or the Department have conducted any 
investigation to determine whether her representations on page 
2 of this letter are complete. Because, frankly, it appears 
that the Marshals Service may not have told Ms. Stemler the 
relevant facts until very recently.
    Mr. Mukasey. I don't know when they told her the relevant 
facts. It doesn't appear to me that there is any more for the 
Marshals Service to have known, since this appears to have been 
a singular incident.
    Mr. Davis. Would it trouble you that the Marshals Service 
didn't immediately disclose to the Justice Department that they 
had had contacts with Judge Fuller?
    Mr. Mukasey. Marshals, as is obvious from this, are not 
lawyers. It might have been disclosed sooner. It ultimately----
    Mr. Davis. Should Judge Fuller have disclosed that to 
defense counsel?
    Mr. Mukasey. I am not going to get into how Judge Fuller 
behaved, because I don't know the full circumstances under 
which they were disclosed to him, what the basis was of his 
ruling or when it was rendered. And all of this is going to be 
the subject of a report to me.
    Mr. Davis. Last question: Are we confident that the 
prosecution did not have any communications with Judge Fuller 
about the Marshals Service investigation?
    Mr. Mukasey. All I can say is I see nothing in this letter 
to suggest that. Whether they did or didn't may emerge from 
other facts that I don't know. That may be part of the OPR 
investigation.
    Mr. Davis. Should the Department ask them?
    Mr. Mukasey. I think that I ought to await the OPR report 
before I make judgments about who knew what when and disclosed 
what to whom.
    Mr. Davis. Will we have a chance to see the results of the 
OPR report?
    Mr. Mukasey. Absolutely. If there is a finding of 
misconduct, you will see the report itself. But as I understand 
it, and I learned this only recently, Congress was itself the 
complainant in that case, and the complainant is always 
notified about the result, about the outcome. So the answer to 
that last question is yes.
    Mr. Davis. All right. Thank you.
    Thank you for being indulgent with my time, Mr. Chairman.
    Mr. Conyers. Steve King of Iowa is a Member with great 
distinction on the Immigration Committee and on the 
Constitutional Committee as well, and he is recognized at this 
time.
    Mr. King. Thank you, Mr. Chairman.
    I want to thank Attorney General Mukasey for his very 
astute testimony here today. And I have had that same 
observation the previous time you were before this Committee, 
General.
    I would like to first take up the issue--I was listening to 
the gentlelady from California, the Chair of the Immigration 
Subcommittee, Ms. Lofgren, when she brought up the issue of the 
caseload in the circuit courts and in, particularly, the Second 
and the Ninth, as I recall, and that 40 percent of those cases 
are immigration cases.
    And I would ask you if you are aware and if you would 
comment on those two particular courts in particular, on 
whether it is a practice for them to grant automatic stays of 
deportation or removal to any alien who files an appeal?
    Mr. Mukasey. Again, I am working off lore, L-O-R-E, not 
law, L-A-W, but I believe it is the normal practice, because it 
used to be the practice for DIA judges to do that. I don't know 
for a fact. I think that is the case.
    Mr. King. Okay. If we could operate under just my 
presumption that it is, if we are operating under my 
presumption that it is and my information that that is the 
practice, to grant the automatic stay, what would you expect to 
be the behavior of the defendants if they got an automatic stay 
and were allowed to stay in the United States until the issue 
was completely adjudicated through the Circuit Court?
    Mr. Mukasey. I can't speculate on that. I really can't. It 
depends, I suppose, on whether they have a good-faith basis on 
asking for asylum or not. If they have a good-faith basis, they 
behave themselves. If they don't, they don't.
    Mr. King. I would submit that if someone comes to the 
United States illegally, they are going to seek to stay here, 
and if they know that they are automatically granted a stay of 
deportation, then that would be the natural process to utilize 
that automatic extended period of time. I think that would be a 
human nature response.
    So I will ask you a legal question then, perhaps. And that 
is that, looking at this caseload that is here, there are two 
ways to resolve that, among others, but one of those two ways 
would be to put more resources in the courts, and the other way 
would be for Congress to address it from a statutory 
perspective, to narrow the avenues through which people can 
appeal.
    Would you have any recommendation to the Congress on how we 
might narrow the avenues through which people could appeal?
    Mr. Mukasey. I don't right now. I mean, I have not thought 
through that subject, and I can't really make a concrete 
proposal.
    I know, only from having been there, that the Second 
Circuit has created essentially two dockets, one that gets 
arguments, one that doesn't. And a lot of these immigration 
cases goes on the one that doesn't. And that is unusual for 
that court, which used to grant oral arguments in every case.
    But more than that, I can't tell you.
    Mr. King. And when you asked the Congress to take a look at 
the means by which we would deal with enemy combatants, not a 
specific legislative recommendation, but a conceptual point 
that you have made to us, I will just say I appreciate that. I 
think it is appropriate. It fits what we need to be doing as a 
Congress.
    I would like to go further down that path, but in the time 
that I have, I think instead I want to make a point here and 
ask your comment on this.
    In the non-border Federal districts, the number of illegal 
aliens being prosecuted for Federal crimes has increased. And, 
for example, last year, more than 40 percent of the Federal 
defendants in Oregon were illegal aliens. And when we go to 
some of the other internal districts, non-border districts, 
Colorado, Western District of Arkansas, Middle District of 
North Carolina, which may have a border actually, and Nebraska, 
all of those had more than 25 percent of their Federal 
defendants were illegal aliens. And here are two others in this 
list: the Northern District of Iowa, the Southern District of 
Iowa.
    So, is this increase, is it reflective of policy of 
prioritizing prosecution of criminal aliens, or is it 
reflective of a flood of criminal aliens that we have to deal 
with?
    Mr. Mukasey. I think we prosecute people who commit crimes, 
and States prosecute people who commit crimes.
    I know that the facts that you have outlined are something 
of a drain on our resources, because we are obligated to 
supplement the budgets of those States that have illegal 
Federal aliens among their prison populations, to help them 
deal with that problem, because these people are illegal 
aliens. So we are sympathetic to it and trying to do something 
about it.
    Mr. King. And you will be aware that in section 642 of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 
1996, which was very much put together by Mr. Smith, our 
Ranking Member, there is a prohibition in there for sanctuary 
cities. It prohibits those cities from refusing to allow their 
employees to cooperate with the Federal immigration 
authorities.
    I would just ask you on that, what are you able to do to 
enforce section 642, the ban on sanctuary cities?
    Mr. Mukasey. We try to enforce it. We try to prosecute 
people wherever they are found, whether they are found in 
sanctuary cities or not. Obviously that complicates the task.
    I recognized before that there is a certain conundrum in 
that you don't want to discourage people who have been the 
victims of crime from reporting crime and create, essentially, 
a favored class, favored from the crook's standpoint, of 
victims who then can't report crimes.
    But, by the same token, we obviously oppose the concept of 
sanctuary cities and are doing everything we can.
    Mr. King. Well, I would point out there was a triple murder 
in San Francisco, and the alleged perpetrator was a criminal 
alien who had been encountered by local law enforcement and 
then released under the sanctuary city policy of San Francisco. 
And now a father and two sons of lying in their graves out in 
western California.
    And those kind of issues, I would suggest, are paramount to 
any kind of sensitivity about who might report a crime. And, in 
fact, I would submit that any analysis of how people will 
respond with information, if that means suspending enforcing 
the law, I don't think that is an appropriate consideration 
with regard to the Department of Justice.
    Mr. Mukasey. I don't think anybody favors suspending 
operation of the law when you talking about somebody taken into 
custody. I was talking about somebody reporting a crime. Those 
are two different things.
    Mr. King. Yeah, I understand. And it is a significant 
nuance. However, we still have the policy of section 642 that 
is not being enforced effectively.
    And I will point out the way they are getting around it, 
for the record, is they prohibit their city employees from 
gathering information. And they have held seminars across the 
country, provided that as a loophole in this statute.
    I would ask if it be your recommendation that we close that 
loophole?
    Mr. Mukasey. Okay.
    Mr. King. Does that mean it would be?
    Mr. Mukasey. I believe it would be.
    Mr. King. And I thank you very much, Attorney General 
Mukasey. I thank you for your testimony and for submitting 
yourself to this very public situation here today. It was a 
hard job to step into, and you are doing a very good job. I 
thank you.
    Mr. Mukasey. Thank you very much.
    Mr. King. I yield back.
    Mr. Conyers. Keith Ellison, a member of the defense bar, a 
Member of the Subcommittees on Immigration and Constitutional 
Law.
    Mr. Mukasey. Good afternoon.
    Mr. Ellison. Good afternoon, sir.
    Could you talk a little bit about the recent reports that 
have come out regarding FBI investigations and their new policy 
or guidelines that would allow them to take into consideration 
issues of race, religion, things like that? Could you just 
elaborate on that?
    Mr. Mukasey. I think what you are alluding to is reports 
that there are going to be issued new Attorney General 
guidelines and speculation about whether or not they would 
allow that practice.
    What I will tell you is that the previous guidelines that 
forbid the predicating of investigations simply on somebody's 
race, religion, exercise of first amendment rights, will remain 
in place. The previous guidelines in all respects on that will 
remain in place.
    The purpose of putting the new guidelines in place is to 
rationalize and organize a process that has really been going 
on since after September 11th, 2001, on the recommendation of 
at least the 9/11 Commission and the Silberman-Robb Commission, 
that the FBI, in addition to being a crime-solving 
organization, become an intelligence-gathering organization.
    There then ensued essentially two sets of guidelines: one 
on how to open criminal investigations, the other on how to 
predicate national security investigations. And, at times, they 
were cross-cutting. The same behavior was described in 
different ways and produced different results. So what we are 
going to do is put them in order. But the protections I 
mentioned will remain in place.
    I think the new guidelines will also make it apparent that 
concurrent with the growth in FBI intelligence gathering has 
been a growth in monitoring, both within the FBI and in the 
National Security Division of the Justice Department, and 
oversight, so we can make sure that the FBI is not doing what 
you suggested the new guidelines would permit.
    Mr. Ellison. Well, I am glad to hear you say that on the 
record. It is important. I just want to point out----
    Mr. Mukasey. Those guidelines have not yet been released.
    Mr. Ellison. What kind of input can Members of Congress 
have into what the guidelines might reflect?
    Mr. Mukasey. Members of Congress will be briefed on the 
guidelines before they go into effect. The guidelines are 
already in the process of being drafted. They will be signed by 
me. That said, they are guidelines, they are not statutes, and 
they can be changed when, as and if there is reason to change 
them.
    What I plan to do is get them in final shape, review them, 
sign them, and then, before they are implemented, have Congress 
briefed on them, show them to Congress, so that everybody 
understands what they are and, more to the point that you just 
made, what they aren't.
    Mr. Ellison. Okay. Let me move along to another question.
    You know, U.S. Attorneys and I guess even States attorneys 
will sometimes identify certain individuals as unindicted co-
conspirators. I think the general practice, at least in the 
area I am from, is to not release that list of people to the 
public because there is really no legal way to get yourself off 
that designation, and yet it doesn't necessarily mean that you 
are going to be indicted or anything like that.
    My question is, there is a case in Dallas that has to do 
with the HLF case, Holy Land Foundation, 300-some groups and 
people on an unindicted co-conspirator list. They have been 
subjected to public derision, and yet they are without any way 
to, sort of, get off the list.
    Can you speak about your views, not about that case, but 
about in general whether it is appropriate for a U.S. Attorney 
to publish a list of unindicted co-conspirators, what value to 
justice it has?
    Mr. Mukasey. U.S. Attorneys are required by law, any time 
there is a conspiracy charge--and in almost every case 
involving more than one person, obviously there is--to turn 
over to the defense a list of unindicted co-conspirators.
    Mr. Ellison. That is right.
    Mr. Mukasey. That is largely because otherwise they can't 
use those statements as statements in furtherance of the 
conspiracy, unless they turn over the course. That is why they 
do it.
    Mr. Ellison. Of course.
    Mr. Mukasey. And, generally, those lists are just as much 
pleadings, in a way, as any other pleading in a case, and so 
they become public.
    Mr. Ellison. Well, you know what, thought? If my experience 
didn't point me in another direction, I wouldn't debate the 
point with you, but I happen to know and have been involved in 
cases where unindicted co-conspirator lists were not made 
generally available to the public, even if they were made 
available to the defense.
    And my question for you is--I guess here is my basic 
question to you. What are your views on whether or not it is 
legitimate to put people on a list that you never end up 
calling?
    I mean, we have the experience of the trial, in this case, 
where you never end up calling these people as witnesses, you 
never end up making a claim as to what statements they made 
could or should have been the subject of a conspiracy, and 
therefore make them unindicted coconspirators, and yet they are 
subject to the public derision of being on such a list.
    What are your views on that subject?
    Mr. Mukasey. My experience has been that Assistant U.S. 
Attorneys--and I did this when I was Assistant U.S. Attorney, 
and I saw it done when I was a judge--take very great care in 
compiling such a list.
    Mr. Ellison. Well, what about when they don't? Shouldn't 
there be a way for your office to say people can somehow be 
exonerated or expunged off this list? Shouldn't there be some 
sort of a process?
    Mr. Mukasey. I think we ought to look into that, just as 
people have raised with me the question of whether, when it is 
announced that somebody is under investigation, shouldn't be 
there be away of announcing that they are not? It is, kind of, 
another version of the same problem. And I agree that it 
deserves serious consideration.
    But I understand the need for such lists, and my experience 
is that they are drawn carefully and specifically with a view 
toward assuring the admissibility of statements.
    Mr. Ellison. Well, you probably would agree that sometimes 
that careful practice is not always followed by everybody.
    Mr. Mukasey. Look, everybody involved in the process is a 
human being. That means mistakes get made.
    Mr. Ellison. Right. And so there should be some way to 
clean up those mistakes.
    Mr. Mukasey. I think it bears serious consideration.
    Mr. Ellison. I also want to ask, lastly, about watch lists. 
What can we do? I have talked to so many people who just get, 
you know, what I will call the hospitality when they go to 
airports. These are people who have never done anything wrong, 
who travel back and forth from other countries and throughout 
the United States. But sometimes whenever they get to the 
airport, they are the ones being searched, they are the ones 
being stopped, they are the ones who are missing flights, they 
are the ones being delayed.
    And, you know, my question is, what are you doing to make 
sure that you are not getting people stopped and hit on these 
watch lists that really should not be on there? What is our 
cleansing process for that?
    Because I will acknowledge to you, there is a purpose for a 
watch list. There are dangerous people out there. The people in 
9/11, they got on a plane, and maybe it would be great if they 
were on a watch list.
    But I think we have gone overboard and we need a way to 
clean up these lists. What are you doing about that?
    Mr. Mukasey. I don't----
    Mr. Ellison. First of all, do you think it is a problem?
    Mr. Mukasey. I have seen reports about people being on 
watch lists because they have names similar to other people who 
probably belong on the watch list, being stopped at airports. I 
know that the airport screening process is not perfect. I know 
that from personal experience.
    When I was a district judge and had marshals accompanying 
me, despite the fact that they had guns with them and everybody 
knew that I was a Federal judge, I got stopped and I was the 
candidate for the kind of search you described. I don't know 
how that happened, but it happens, and it happened more than 
once.
    That said, I think there ought to be a way of making 
certain that the list is accurate. There are a lot of names on 
the list. There are a lot of variations on names, so that there 
are many fewer actual people on the list than there are names.
    But I think you are right, that there ought to be a way of 
assuring that people who don't belong on the list can get off.
    Mr. Ellison. Well, because one thing, Mr. Attorney General, 
is that we go through five people who are not supposed to be on 
the list but are; we waste time and energy working them over. 
Then it dilutes the impact of the people who we really do need 
to be keeping an aye on.
    Mr. Mukasey. Amen to that.
    Mr. Ellison. So, I mean, I want to work with you to make 
sure we deal with that.
    Last question, if I may.
    Mr. Gohmert. Regular order, Mr. Chairman. We are about 5 
minutes over time.
    Mr. Conyers. The gentleman's time has expired.
    The Chair recognizes Trent Franks of Arizona, formerly the 
Crime Ranking Member, now Ranking Member of Constitution, also 
a Member of the Commercial and Administrative Law Committee.
    Mr. Franks. Well, thank you, Mr. Chairman, very much.
    And thank you, Attorney General Mukasey, for being here.
    I know that you are tasked with one of the most important 
jobs in any government, which is the administration of justice 
and protecting the innocent in our society. And it is a 
profound responsibility.
    And I would suggest to you it is my own opinion that those 
who were predecessors to you in the Justice Department were 
faced with probably one of the biggest challenges that we have 
faced in the last century, which is the coincidence of jihadist 
terrorism and nuclear proliferation. And it is a very sobering 
job, indeed.
    And it occurs to me that the evidence that I have seen 
indicates that, most of the time, that they simply seem to be 
trying to do everything they could to protect the American 
people within the constraints of the Constitution and the law.
    And so I am always a little disheartened that our Committee 
seems to be focused more on trying to paint some of those 
individuals with recriminations rather than doing what we can 
to improve our system so that 9/11 and those types of things 
don't happen again.
    With that in mind, I agree with you that Congress should 
step up to its responsibilities related to the procedures in 
habeas corpus cases. Sometimes we leave these decisions to 
unelected judges to somehow balance those procedures with our 
national security. But, after all, Congress provides for normal 
habeas cases, you know, these procedures; we do that all the 
time.
    And I am wondering why we should abdicate our response to 
act in these unusual habeas corpus cases, when these pose such 
a serious threat to our national security?
    Mr. Mukasey. Well, it was the point of my speech the other 
day that Congress, working with the executive, is ideally 
suited to fill in the gaps that were purposely left by the 
Supreme Court, because it has available to it the kind of 
knowledge that is needed.
    It is not that judges are incapable of deciding cases. They 
are perfectly capable of deciding cases. It is simply that they 
don't have access. They can't find facts on their own. Only in 
very limited circumstances can they acquire the expertise. By 
and large, they rely on the facts and on the evidence and on 
the expertise presented to them by the parties, which at times 
is imperfect. And it is kind of a helter-skelter way of 
deciding an issue. It is inevitable that, even in the best of 
circumstances, some of them will come to different conclusions. 
As a result, different procedures will be followed, and the 
matter will engender just endless litigation.
    Rather than having that, I think the orderly and 
appropriate way is for Congress, working with the executive, to 
literally put their heads together, and that is a lot of heads 
with a lot of knowledge, expert knowledge and classified 
knowledge, so as to come up with ways to solve these problems 
so that we have a rational system and we don't get endless 
delay and, possibly, conflicting decisions with, possibly, some 
very serious and unpleasant results.
    Mr. Franks. Well, of course, I agree with you.
    General, the Fourth Circuit recently upheld the premise 
that the United States could detain as an enemy combatant al-
Marri, and this is some who Osama bin Laden sent into the 
United States just 1 day before September 11th.
    But I am concerned, of course, that there were dissenting 
judges that would have concluded we are not at war with al 
Qaeda and that this was just a law enforcement matter. And, 
unfortunately, it occurs to me it sound like the old mindset in 
our country, which, in my mind, should have been put to rest 
after September 11th.
    Are you concerned that some of our judges or legislators or 
people in general, that we are starting to forget the 
significance and the grave nature of the struggle that we face?
    Mr. Mukasey. Well, I am not going to single out any people 
or group of people as more or less mindful of the danger.
    I will point out that, as September 11, 2001, recedes into 
the past, there are some people who have come to think of it as 
kind of a singular event and of there being nothing else out 
there. In a way, we are the victims of our own success, our own 
success being that another attack has been prevented.
    There was a newspaper, which I will not name, that, on a 
recent anniversary of September 11, 2001, said something to the 
effect that it still creates problems in people's minds to 
think about September 11, 2001, as if that were a remarkable 
fact. It is not at all a remarkable fact. And that was not a 
singular event, in the sense that the danger has ended. It 
hasn't. I get reminded of it every morning.
    Mr. Franks. Yeah. Well, tell me, what can we do to ensure 
that the Congress and the American people and the courts don't 
forget the seriousness of the struggle that we are in?
    And if you could name any one thing that we could do in 
this Congress to assist the Justice Department in helping to 
protect this country and its people, what would that be?
    Mr. Mukasey. That would be to pass the kind of legislation 
that I have proposed.
    And as far as not letting people forget that, that is 
always kind of a difficult thing. You don't want people to run 
around scared. You want people to live their lives. That is 
what everybody was told after September 11th. But you still 
don't want people to forget that there are a lot of folks out 
there whose list of things to do includes pretty much killing 
Americans.
    Mr. Franks. Yes, sir. Well, thank you for your noble 
service, General.
    And thank you, Mr. Chairman.
    Mr. Conyers. Thank you very much.
    Ms. Jackson Lee. Mr. Chairman?
    Mr. Conyers. Thank you, Attorney General Mukasey, for your 
testimony today.
    I would like to yield to the gentlelady from Texas for any 
materials that she would like to introduce into the record.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    Thank you, Attorney General Mukasey.
    A Houston Chronicle article dated July 18, 2008, that 
recounts, again, the incidents in the Harris County jail. I ask 
unanimous consent.
    I ask unanimous consent for a letter that asks for a full 
investigation on the FBI watch list regarding CNN reporter Drew 
Griffin. And I believe it mentions Congressman John Lewis, but 
I will add him to the letter. I ask unanimous consent.
    I ask unanimous consent for a series of questions for this 
hearing dated 7/23/08 regarding the new guidelines on ethnic 
and racial criteria for FBI surveillance.
    I ask unanimous consent, Mr. Chairman, to include these 
items in the record, and ask for a response on the full 
investigation on the FBI watch list.
    Mr. Conyers. Without objection, the documents that have 
been introduced will be included in the record.
    We would like all Members to have 5 days to submit 
additional questions that may not have been raised.
    We appreciate the interest and the concern of the Attorney 
General and Department of Justice. We have a lot of work to do. 
There are still a number of hearings scheduled before the 
Committee that involve parts of DOJ.
    Did you want to make any comment before we leave?
    Mr. Gohmert. No.
    Mr. Conyers. Thank you, Judge Gohmert.
    The Committee is adjourned.
    [Whereupon, at 2:48 p.m., the Committee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

       Prepared Statement of the Honorable Sheila Jackson Lee, a 
    Representative in Congress from the State of Texas, and Member, 
                       Committee on the Judiciary





  Prepared Statement and Questions of the Honorable Maxine Waters, a 
 Representative in Congress from the State of California, and Member, 
                       Committee on the Judiciary




 Letters to the Honorable Michael B. Mukasey, Attorney General of the 
  United States, U.S. Department of Justice, from the Honorable John 
Conyers, Jr., a Representative in Congress from the State of Michigan, 
                and Chairman, Committee on the Judiciary




  Letter to the Honorable Michael B. Mukasey, Attorney General of the 
 United States, U.S. Department of Justice, from the Honorable Sheila 
Jackson Lee, a Representative in Congress from the State of Texas, and 
                   Member, Committee on the Judiciary





    Post-Hearing Questions* posed by the Honorable Maxine Waters, a 
 Representative in Congress from the State of California, and Member, 
     Committee on the Judiciary; and the Honorable Lamar Smith, a 
Representative in Congress from the State of Texas, and Ranking Member, 
                       Committee on the Judiciary
---------------------------------------------------------------------------
    *Note: The Committee had not received a response to these questions 
by the time of the printing of this hearing.






                                 
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