[Senate Hearing 110-695]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 110-695

EXECUTIVE NOMINATIONS: J. PATRICK ROWAN, OF MARYLAND, NOMINEE TO BE AN 
 ASSISTANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION; JEFFREY LEIGH 
 SEDGWICK, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF JUSTICE 
 PROGRAMS; AND WILLIAM B. CARR, JR., NOMINEE TO BE MEMBER OF THE U.S. 
                         SENTENCING COMMISSION

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


                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 23, 2008

                               __________

                          Serial No. J-110-109

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
           Stephanie A. Middleton, Republican Staff Director
              Nicholas A. Rossi, Republican Chief Counsel
                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   149
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................    36

                         STATEMENTS OF NOMINEES

Carr, William B., Jr., Nominee to be a Member of the U.S. 
  Sentencing Commission..........................................    73
    Questionnaire................................................    74
Rowan, J. Patrick, of Maryland, Nominee to be an Assistant 
  Attorney General, National Security Division, Washington, D.C..     2
    Questionnaire................................................     3
Sedgwick, Jeffrey Leigh, Nominee to be Assistant Attorney 
  General, Office of Justice Programs, Washington, D.C...........    37
    Questionnaire................................................    38

                         QUESTIONS AND ANSWERS

Responses of William B. Carr to questions submitted by Senators 
  Feingold and Kennedy...........................................   118
Responses of J. Patrick Rowan to questions submitted by Senators 
  Kennedy and Feingold...........................................   126
Responses of Jeffrey Leigh Sedgwick to questions submitted by 
  Senators Kennedy, Feingold and Coburn..........................   131

                       SUBMISSIONS FOR THE RECORD

Warner, Hon. John, a U.S. Senator from the State of Virginia 
  presenting Jeffrey Leigh Sedgwick Nominee to be Assistant 
  Attorney General, Office of Justice Programs, Washington, D.C., 
  statement......................................................   154
 
EXECUTIVE NOMINATIONS: J. PATRICK ROWAN, OF MARYLAND, NOMINEE TO BE AN 
 ASSISTANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION; JEFFREY LEIGH 
 SEDGWICK, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF JUSTICE 
 PROGRAMS; AND WILLIAM B. CARR, JR., NOMINEE TO BE MEMBER OF THE U.S. 
                         SENTENCING COMMISSION

                              ----------                              


                        WEDNESDAY, JULY 23, 2008

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 2 p.m., in room 
SD-226, Dirksen Senate Office Building, Hon. Russell D. 
Feingold presiding.
    Present: Senators Specter and Brownback.

 OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 
                  FROM THE STATE OF WISCONSIN

    Senator Feingold. I call the Committee to order. I want to 
welcome everybody to this hearing of the Judiciary Committee on 
executive nominations. We have three nominees to consider 
today, two nominated to serve as Assistant Attorney General in 
the Department of Justice, and one to serve as a Commissioner 
on the U.S. Sentencing Commission.
    While we do not have a panel to introduce the nominees, the 
record will remain open for 1 week for any statements of 
introduction that Senators or members of the House wish to 
submit.
    We do not have a member of the other party here at this 
time, but if one comes, of course, I will turn to the Ranking 
Member for any comments that he might like to make.
    But at this time we will swear in the witnesses. Would you 
please stand to be sworn?
    [Whereupon, the witnesses were duly sworn.]
    Senator Feingold. Thank you. You may be seated.
    Our first nominee is John Patrick Rowan, who has been 
nominated for the position of Assistant Attorney General for 
the National Security Division of the Department of Justice. 
Mr. Rowan currently is serving as Acting Assistant Attorney 
General. He has worked in the Justice Department since 1991, 
first as an Assistant U.S. Attorney, and then in a variety of 
capacities at the FBI and main Justice. He is a graduate of 
Dartmouth College and the University of Virginia Law School.
    Mr. Rowan, congratulations on your nomination, and you may 
take this opportunity to introduce any family or friends that 
are here with you today, and then make any remarks you want to 
make.

 STATEMENT OF J. PATRICK ROWAN, OF MARYLAND, NOMINEE TO BE AN 
     ASSISTANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION

    Mr. Rowan. Thank you, Senator. Thank you and the Committee 
for holding this hearing. It is an honor to be before you. I 
would also like to thank the President for nominating me, and 
the Attorney General for supporting that nomination.
    I do have my family with me today and I'd like to introduce 
them now. Over here on the end is my wife, Patricia Heffernan, 
who is a long-time Department of Justice lawyer herself. She is 
an Assistant U.S. Attorney in D.C.
    My two daughters, Evangelize and Vivian, who are both five 
and a half years old and very pleased to be at their first 
hearing
    [Laughter.]
    Senator Feingold. I am sure.
    Mr. Rowan. My father, William J. Rowan, III, is a Circuit 
Court judge in Montgomery County, Maryland. Behind in the 
second row is my brother William Rowan; in the third row is my 
brother Michael Rowan, his spouse Jennifer, and their children, 
Molly and Mike. I also am joined here by some colleagues from 
the Department of Justice and the National Security Division, 
and I am also pleased to have their support here today.
    Senator Feingold. We welcome you all. Good to see all the 
friends and family.
    Mr. Rowan, you may proceed.
    Mr. Rowan. Senator, I don't have anything further today 
except to express my appreciation for you all holding this 
hearing on relatively short notice.
    [The biographical information of J. Patrick Rowan follows.]

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    Senator Feingold. Thank you, sir. With that, I'm going to 
turn to the Ranking Member of the Committee, Senator Specter, 
for any introductory remarks he wants to make.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Well, thank you, Mr. Chairman. I am glad 
to see these confirmation hearings move forward. We have some 
very important positions at issue here, the Assistant Attorney 
General of the National Security Division. This is a very 
difficult time. There is no doubt we are still subject to 
attack from terrorism, and that position is one of enormous 
importance. Assistant Attorney General for the Office of 
Justice Programs, again, very, very significant.
    The Sentencing Commission. I especially want to welcome 
Bill Carr here, a Pennsylvanian, and a very distinguished 
Pennsylvanian: he is married to my staff director, and that is 
a high accolade and a high honor, Stephanie Middleton, who has 
had a very distinguished practice in Pennsylvania and has given 
up a very lucrative position to come as a matter of public 
service.
    I do want to say that you all should not be perplexed by 
the absence of Senators here. We have, at any moment, as 
Senator Feingold will confirm, committee hearings and 
subcommittee hearings and floor actions and a variety of duties 
which take us in many, many directions. So we do have staff and 
we will review the records.
    Unless there is some very piercing cross examination by 
Senator Feingold, I think you are all in good shape. But you 
can never tell, because Senator Feingold is a piercing cross 
examiner.
    [Laughter.]
    I regret that I cannot stay, but I did want to come and 
thank you for your willingness to participate in public 
service. I am glad we have no lifetime appointments here, so I 
think the confirmation process will probably move forward.
    Thank you very much, Mr. Chairman.
    Senator Feingold. Thank you, sir. I thank the Ranking 
Member very much.
    We will now return to testimony. Thank you, Mr. Rowan, 
again.
    Next, we have Jeffrey Leigh Sedgwick, who has been 
nominated to be Assistant Attorney General of the Office of 
Justice Programs. Mr. Sedgwick currently serves as the Acting 
Assistant Attorney General, and also is director of the 
Department's Bureau of Justice Statistics. He is a graduate of 
Kenyon College and has a Ph.D. from the University of Virginia. 
He has taught government and political science at the 
University of Virginia, the University of Massachusetts, and 
Smith College. I was also interested to note, Mr. Sedgwick has 
done a significant amount of work with the State Department in 
public diplomacy.
    Mr. Sedgwick, welcome, and congratulations. You may now 
introduce your family and anyone else here to support you, and 
make any remarks you wish.

 STATEMENT OF JEFFREY LEIGH SEDGWICK, NOMINEE TO BE ASSISTANT 
          ATTORNEY GENERAL, OFFICE OF JUSTICE PROGRAMS

    Mr. Sedgwick. Thank you, Mr. Chairman. Unfortunately, no 
member of my family is with me today because of work 
responsibilities, but I do want to thank a number of my 
colleagues from the Office of Justice Programs in the Bureau of 
Justice Statistics who are here, and also, I have a number of 
our interns in the Bureau of Justice Statistics that are 
working with us this summer.
    Senator Feingold. Very good. We welcome all of them.
    Any other comments you'd like to make, sir?
    Mr. Sedgwick. Not at this time, thank you.
    [The biographical information of Jeffrey Leigh Sedgwick 
follows.]
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    Senator Feingold. Thank you for coming.
    At this point, I would like to ask unanimous consent that 
the statement of the Chairman of the Committee, Senator Leahy, 
be introduced in the record, and also the statement of Senator 
John Warner on the nomination of Jeffrey Sedgwick, be placed in 
the record at this time, without objection.
    [No response.]
    [The prepared statements of Chairman Leahy and Senator 
Warner appear as a submission for the record.]
    Senator Feingold. Our final nominee is William B. Carr, who 
has been named to the U.S. Sentencing Commission. Mr. Carr 
worked as a Federal prosecutor in the Eastern District of 
Virginia for over 20 years.
    Mr. Carr. Pennsylvania, sir.
    Senator Feingold. I was going to say, he said you were 
Pennsylvania. I guess the first two had Virginia connections. I 
apologize for the error. He is a graduate of Swarthmore College 
and Cornell University Law School, and has taught at both 
Temple and Wagner Law Schools.
    Mr. Carr is now a consultant to the Career Services Office 
of Drexel University College of Law in Philadelphia.
    Mr. Carr, let me turn it over to you to introduce your 
family members, friends, and others, one family member who I 
understand is very familiar, as has already been alluded to 
here, on the Judiciary Committee.

STATEMENT OF WILLIAM B. CARR, JR., NOMINEE TO BE MEMBER OF THE 
                   U.S. SENTENCING COMMISSION

    Mr. Carr. Thank you, Senator. And she just moved from a 
chair behind you, to a chair behind me, to following Senator 
Specter out that door.
    [Laughter.]
    We have a daughter who recently graduated from college and 
is in her second month of being gainfully employed in 
Manhattan, so I didn't ask her to come down. But a close friend 
of mine from the U.S. Attorney's Office for more than 24 years, 
Bucky Mansuy, who is seated behind me, has come down today.
    Senator Feingold. Welcome, sir.
    Mr. Carr. And I would like to thank Senator Specter for his 
support, the President for the nomination, and the Committee 
for affording me this hearing.
    [The biographical information of William B. Carr Jr., 
follows.]
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    Senator Feingold. Thank you, Mr. Carr. Thank you all for 
being here.
    We'll start with questions for Mr. Carr. Under the current 
sentencing system, judges may increase a defendant's sentence 
based on conduct for which the defendant was never charged, 
conduct for which all charges were dismissed, or even charges 
of which the defendant was acquitted.
    Applying a preponderance of the evidence standard, the 
judge is allowed to increase the sentence by the same amount 
that the defendant would have served if convicted by a jury and 
proved beyond a reasonable doubt. In effect, the defendant is 
sentenced for a crime for which he was never convicted. Now, to 
me this policy appears to fly in the face of the principle that 
a person is innocent until proven guilty.
    What are your thoughts on the practice of acquitted conduct 
sentencing, and would you take steps to end this practice, if 
confirmed?
    Mr. Carr. First, Senator, if I can address how we get to 
the situation we're in where all of that conduct gets 
considered. When the Sentencing Commission first promulgated 
its initial guidelines back in 1987, what they tried to do was 
to sort of average out the sentences that were already being 
imposed based on the reasons that they were being imposed.
    The Sentencing Commission concluded that, with respect to 
certain kinds of crimes, sentencing judges had historically 
taken into consideration things that had not necessarily been 
charged or not necessarily been proved.
    Acquitted conduct was the one that, as I tend to say, sort 
of flunked the smell test, but passed the logic test, because 
since they set up a system where judges would do judicial fact-
finding by a preponderance of the evidence, judges could find 
facts that had never been charged, or find by a preponderance 
of evidence facts of which a defendant had been convicted at 
trial.
    I understand why it is controversial, I understand why many 
people--judges and practitioners alike--rail against it. One of 
the things about taking acquitted conduct off the table, it 
could have a curious effect on some charging and pleading 
decisions.
    A prosecutor thinking about charging five different drug 
distributions where the evidence of the first one is simply an 
informant, the evidence of the second one is an informant and 
some surveillance, and the evidence of the last three is an 
undercover agent with tape recordings, might thing, well, I'm 
just going to charge to the last three because that way the 
defendant doesn't have an opportunity to get acquitted of the 
first two.
    By the same token, if all five are charged, a defense 
attorney might say, well, we'd better go to trial on this one 
because we may roll the dice and get the first two thrown out. 
So it is not a simple situation, but there's a logic to it that 
goes along with the whole logic of preponderance of the 
evidence, and even considering other relevant conduct on top of 
what's charged.
    Senator Feingold. So you would not be inclined to try to 
change it. Is that what you're saying?
    Mr. Carr. I know that there are various proposals out 
there. If confirmed--and I'm not trying to avoid the question, 
Senator. If confirmed, I would participate, as I would hope to 
participate, with six other sentencing commissioners in 
deliberations on the issue, which I have not had the 
opportunity to do.
    Senator Feingold. Well, thank you. I hope you'll keep as 
open a mind as possible. I know you've thought about these 
kinds of issues. I think it raises some very serious concerns, 
as you acknowledge, so I appreciate your answer.
    The U.S. Sentencing Commission has been an outspoken critic 
of the unjust and unwarranted disparity in sentences between 
crack and powder cocaine offenses. Last November, the 
commission adopted an amendment to the sentencing guidelines 
that helped mitigate this disparity by reducing the base 
offense levels for crack cocaine offenses. The Sentencing 
Commission then considered whether to apply this amendment 
retroactively.
    In making this decision, the commission considered three 
factors: the purpose of the amendment, the significance of its 
impact, and the feasibility of retroactive application. Based 
on these factors, the commission unanimously determined that 
the amendment should be applied retroactively.
    Do you agree with the commission's decision to apply the 
amendment retroactively, and do you think more should be done 
to reduce or eliminate the crack/powder disparity?
    Mr. Carr. It would be difficult for me to sit here, as one 
who did not participate in that decision, and say that when 
seven commissioners agreed that it should be retroactive, 
including the one who voted against the amendment himself, that 
I would be likely not to have joined in that decision. There 
were several things that were compelling about the 
retroactivity decision.
    As I understand the Sentencing Commission's projections, 
the average reduction in sentence for those who would be 
eligible for a reduction would be 27 months. That reduction 
would, on average, be from 152 months to 125 months, so you 
would still be talking about people who, on average, were doing 
more than 10 years in jail.
    In addition to that, when we've gotten to the point from 
1995 till now when the commission has, time after time, said we 
have to do something about this disparity, and that's through 
many commissioners over many different compositions of the 
commission, and as I understand it, their most recent proposal 
was suggesting that Congress enact something that would result 
in a disparity of not greater than 20:1. I believe there are at 
least three proposals out there ranging from 1:1 to 20:1. When 
there seems to be enough legislative support for that, it would 
have been surprising, I think, had they not made that 
retroactive.
    Senator Feingold. I thank you for your answers, and now I 
will go to Mr. Sedgwick. I'd like to ask you about J. Robert 
Flores, the administrator at the Office of Juvenile Justice and 
Delinquency Prevention, an office within OJP.
    Mr. Flores' tenure has been controversial from the 
beginning. He is widely viewed by juvenile justice advocates as 
having weakened the agency through systematic neglect. Last 
month, we learned Mr. Flores bypassed the agency's peer review 
process and awarded more than $8 million in grants to low-
scoring applicants that had ties to friends and family of 
President Bush.
    We also learned the Office of Inspector General is 
investigating Mr. Flores for use of government funds for 
personal travel and for improper hiring practices. These 
matters have been turned over to Federal prosecutors, who have 
opened a criminal investigation.
    Now, I understand that in criminal proceedings a person is 
presumed innocent until proven guilty beyond a reasonable 
doubt, but the bar for running an important Federal agency 
should probably be higher than just ``not a proven criminal''. 
In this case we are not just talking about allegations of 
professional misconduct.
    The DOJ Inspector General has found enough evidence of 
criminal misconduct to refer the matter to prosecutors. The 
Office of Juvenile Justice is among the offices under your 
supervision. Have you taken any action on this matter since you 
have become Acting Assistant Attorney General, and is it your 
opinion that Mr. Flores should continue to be in charge of this 
office while the criminal investigation continues?
    Mr. Sedgwick. Thank you for that question, sir. The events 
that are--that you allude to that have been the subject of 
recent media reports, oversight hearings, and so on took place 
during the 2007 fiscal year when I was the director of the 
offices or the Bureau of Justice Statistics and not in the role 
of Acting Assistant Attorney General for the Office of Justice 
Programs.
    Should I be fortunate enough to be confirmed, I can tell 
you that my highest priority will be that the process of 
awarding grants in the Office of Justice Programs will meet the 
highest standards of professionalism, integrity, and 
transparency.
    Since assuming the position of Acting Assistant Attorney 
General in January, I have taken steps, up to and including 
personally reviewing and augmenting our peer review policy, to 
make sure that the process that we use meets with broad 
approval.
    Senator Feingold. Do you have authority under your current 
position to take action on this matter with regard to Mr. 
Flores?
    Mr. Sedgwick. That would be a personnel issue that I would 
not want to speculate on right now.
    Senator Feingold. Your authority is a personnel issue?
    Mr. Sedgwick. I--
    Senator Feingold. To act on this, in theory?
    Mr. Sedgwick.--The question of whether or not I have--I 
have not, as an Acting Assistant Attorney General, raised that 
question of what my authority is.
    Senator Feingold. OK.
    Mr. Sedgwick. Since it seemed to me presumptuous to do so 
as an Acting Assistant Attorney General, to raise the question 
of my personnel authority with regard to a Presidential 
appointee within the Office of Justice Programs.
    Senator Feingold. I'm not sure I agree with that, given the 
fact that you are the acting person in that authority, but I 
won't pursue it at this time.
    For the first time in 2008, the Office of Justice Programs 
used a portion of the Crime Victims Fund for OJPs management 
and administrative costs, despite the fact that there is no 
express authority in either the authorizing or appropriations 
statutes for doing so. The Crime Victims Fund, as you all know, 
was created so that fines, forfeitures, and assessments paid by 
Federal criminal offenders, not taxpayers, generate the revenue 
used for grants to State crime victim compensation programs, 
direct victim assistance services, and services to victims of 
Federal crimes.
    Since you were acting director of OJP for at least a part 
of this time, can you explain the justification for using these 
funds for management and administrative costs?
    Mr. Sedgwick. Yes, I can. There are two legal sources from 
which--or two legal authorities under which we can raise the 
funds necessary for the administration of programs in the 
Office of Justice Programs. They may either be drawn from 
legislatively appropriated funds for the purposes of management 
and administration or they can be carved out of the program 
funds themselves and applied for the administration of those 
programs.
    Historically, there has been but one legislative 
appropriation for management and administrative expenses in the 
Office of Justice Programs, and that has historically averaged 
right around $42 million. The situation we faced in fiscal year 
2008 was that that appropriation amount was cut to $10 million, 
which is significantly less than the M&A amount necessary to 
keep even the Office of Victims of Crime open for the full 
fiscal year administering its programs.
    Therefore, we made the decision, since we had but $10 
million appropriated--in fact, the management and 
administration expenditures authorized by Congress were $127 
million--we made the decision to treat all program funds 
essentially equally and to carve out of all program funds an 
amount, effectively 4.9 percent, for the administration of 
programs in OJP. So, all program dollars were treated equally.
    As I said, this is really largely the result of, for the 
first time, having the legislatively appropriated amount of M&A 
reduced below a level that was necessary for the M&A assessment 
for OVC, let alone the other program offices in OJP.
    Senator Feingold. Thank you, Mr. Sedgwick. I will have some 
followup written questions for you on some of these matters, 
but thank you for your answers.
    Mr. Rowan, let me turn to you. You have worked at the FBI 
or Main Justice since 2002. Were you read into the President's 
Terrorist Surveillance Program prior to when it became public 
in December of 2005?
    Mr. Rowan. Yes, I was, Senator.
    Senator Feingold. OK. Did you ever express concern about 
the legality or constitutionality of that program in any 
internal deliberations within the FBI or the Department of 
Justice?
    Mr. Rowan. Senator, I was not at any point asked to express 
an opinion about the sort of legal underpinnings. My focus, 
when I was read in, which is actually when I was in the 
Criminal Division of the Department of Justice and after--so 
this was after I'd been at FBI, my focus was trying to 
determine how to deal with the issue of our criminal discovery 
obligations in connection with prosecutions and the potential 
that there may be intelligence information out there.
    That work began shortly before the program was made public 
in December, 2005, and continued in a much more visible way 
after December of 2005. So again, I was aware of the program 
because we were trying to determine, how can we ensure that we 
are maintaining--that we're meeting any obligations we might 
have.
    Senator Feingold. I understand that you were not asked 
about your opinion on the legality or the constitutionality. I 
also understand you did not offer it. But do you recall having 
an opinion, yourself, about the legality or constitutionality 
of the TSP program?
    Mr. Rowan. Senator, as I sit here today, recall--I recall 
certainly forming a general conclusion that it was a highly 
complex area, that the analysis was complicated. I cannot 
recall forming a bottom-line conclusion about the legality or 
not of the program or the--sort of any element of the legal 
opinions underpinning it. I certainly was aware of some of the 
issues, but I was focused on trying to make sure that I met the 
responsibilities that I understood myself to have.
    Senator Feingold. Would it be fair--and you can just say no 
if you don't think it is--to say that you perhaps saw it as a 
close call?
    Mr. Rowan. It's--you know, when I--when I--when I sit here 
now, Senator, and think about the legal foundation for the 
program, I--I am primarily focused on what I have reviewed in 
the context of the white paper. I think that there are some 
complicated issues there. I do think that the idea that things 
like signals intelligence collection are an instrumental part 
of war efforts and that, therefore, the authorization for the 
use of military force was a piece of legislation that one could 
look to in determining whether or not the sort of means 
provisions had been met.
    I recall, particularly, that area, finding that to be a 
rather solid analysis. But it's a complicated area of the law, 
I certainly concede that.
    Senator Feingold. Well, I am asking because the White House 
and I both agree it's not a close call; we just come to 
completely opposite conclusions. So I'm trying to find people 
who might have seen it as somewhere in between. But thank you 
for those answers.
    You have a long history as a Federal prosecutor and have 
been involved in a number of successful terrorism prosecutions 
that have been brought by the Department of Justice. Do you 
believe that the criminal justice system can be an effective 
tool in the U.S. Government's fight against terrorists?
    Mr. Rowan. I do, Senator. I believe that there--there--it 
is certainly the case that one size may not fit all. I think 
that there are appropriate, different approaches given the 
circumstances, but I think one critical component is now, has 
been, and always will be the criminal justice system.
    I'm very proud of the work that I've done to prosecute 
international terrorism cases, proud of the folks in my 
division in U.S. Attorney's Offices around the country that 
have actually been in court on those cases, and I think that 
they're an extremely important part of how we address the 
problem of international terrorism.
    Senator Feingold. As you know, there was a lot of 
controversy surrounding the PATRIOT Act when it passed in 2001, 
and in my view it flew through Congress too quickly and without 
time for calm consideration. Four years later when Congress 
took up the reauthorization of the PATRIOT Act, I was 
disappointed that the administration pursued a confrontational 
and highly political approach to that legislation, refusing to 
agree to some quite modest and reasonable changes proposed by 
both Republicans and Democrats.
    In retrospect, do you think that the consideration of both 
the original PATRIOT Act and the reauthorization legislation 
was overly politicized, and do you think that additional 
reasonable checks and balances could have been built into that 
legislation to protect against abuse, while still ensuring that 
the government has the authorities it needs?
    Mr. Rowan. Senator, I appreciate that those are extremely 
significant pieces of legislation that were in the first 
PATRIOT Act, of course, moved through Congress quickly, and 
that there were issues that arose that may not have been 
anticipated until after the fact. But I--to the extent that 
you're asking if I believe that the PATRIOT Act reauthorization 
was overly politicized in a way that caused us as a country to 
end up with a statute that didn't strike the right balance, I 
would disagree with that.
    I should note a point of personal bias, that the National 
Security Division was actually created by the PATRIOT Act 
reauthorization and my position that I'm up for confirmation on 
was actually created by that legislation, so I certainly can't 
be too against it.
    Senator Feingold. I confess to bias, as the only Senator to 
vote against the bill, so there we have it.
    Anyway, let's turn to Senator Brownback.
    Senator Brownback. I've been in those categories, being the 
only one to vote that way.
    Gentlemen, thank you for being here. I want to thank the 
Chairman for holding the hearing and moving forward, and 
hopefully these nominations will move forward quickly.
    I don't know whose daughters those twins are back there, 
but they're beautiful. Bring them to every hearing you have, is 
my suggestion.
    [Laughter.]
    Mr. Rowan. They'll be available for rent, Senator.
    [Laughter.]
    Senator Brownback. OK. Are they twins?
    Mr. Rowan. They're mine, Senator. Vivian and Evangelize.
    Senator Brownback. Hi, girls.
    I've looked through and I'm pleased to see you're up, 
pleased to see you moving forward. I want to draw one item to 
your attention, if I could, that's been a personal issue of 
mine, so this is a personal project that we've been pushing 
for. It's on the Second Chance Act. There is a bipartisan bill 
coming through here to try to reduce the recidivism rate of 
people going into prison. We got it passed, signed into law by 
the President, and it will be implemented by this 
administration.
    I think actually some of the programs may come through the 
Office of Justice Programs, less impact on the U.S. Sentencing 
Commission. But it's my hope that this will be actively pursued 
by the administration as a way of being able to try to reduce 
these recidivism rates that we have across the country, because 
right now if you go under our present system, the numbers I've 
seen, two- thirds of the time you're going to go back once you 
get out.
    So, something's not quite working right when they're in to 
try to help people either develop the life skills, or the 
abilities, or the mental fortitude of the soul to be able to 
stop this sort of criminal activity. This is an effort that 
we've got to, I think, really address and address in a very 
wholehearted fashion to say we're going to try to address this 
person's needs and try to structure and get an environment and 
an atmosphere that can stop this gate from going around and 
around.
    As I look at the numbers, I think we've got about 600,000 
people getting out of prison a year. If you've got two-thirds 
of them going back, it seems like a really effective way to 
deal with part of our crime problem would say, well, we're 
going to get that number down, we're going to cut that number 
in half. I hope you'll look aggressively at implementing that. 
I don't know about Mr. Sedgwick. I think this would be 
something--I don't know if you've had a chance to look at this 
or think about it any at all, or even you, Mr. Carr. But if you 
had any thoughts on it, I would appreciate it.
    Mr. Sedgwick. We have--actually have looked at this issue 
quite extensively and in the Bureau of Justice Statistics we 
have just created a new Reentry and Recidivism Unit within the 
Bureau of Justice Statistics to focus attention on precisely 
this question. But, clearly, I share your concern on this issue 
and look forward, if I'm fortunate enough to be concerned--to 
be confirmed, to working with you and others in the Senate that 
are concerned about this issue to see what we can do to put 
together a robust agenda of studies to determine what is the 
most effective way to reduce recidivism rates post-release and 
to enhance the successful reentry of persons that are being 
released from confinement into society and make sure that's a 
smooth and successful transition. I look forward to working 
with you on that.
    Mr. Carr. Good afternoon, Senator. Actually, although I 
could not attend it--I was on Federal jury duty those 2 days 
last week--the Sentencing Commission actually had a 
comprehensive 2-day symposium on Alternatives to Incarceration 
and Reentry Programs. I think it's something that the 
Sentencing Commission is going to be getting more involved in 
going forward. They were addressing both Federal and State 
systems, and ways to evaluate their success.
    In my own district, in the Eastern District of 
Pennsylvania, something that has not been funded, except I 
think there's one former U.S. Attorney who is paid under $75 an 
hour, the U.S. Attorney's Office went to the Probation 
Department and the District Court and, as you may know, there's 
an epidemic of violent crime in Philadelphia and they've got a 
new pilot program where there is a repeat offender index, which 
is something that the Probation Office figures out for everyone 
who's in jail.
    For a certain score on that scoring system, there's a 58 
percent rate of being revoked and sent back to jail for those 
who are released from Federal prison and are residents of 
Philadelphia. They started a program 10 months ago where people 
who have that score and are in that category are offered the 
opportunity to enter this program, and the court has supplied 
the work of two magistrates, the U.S. Attorney's Office has 
supplied the work of two Assistant U.S. Attorneys, and the 
Probation Department has--and the Defender's Office have each 
provided two, and these offenders--and I think there are three 
dozen of them now--meet every 2 weeks in a group with their 
families, with the magistrates, with the people from the U.S. 
Attorney's Office, Probation Department, and Defender's Office, 
and those people are all active in getting local agencies 
involved, getting funding for training.
    They've got the Community College of Philadelphia admitting 
these people to classes and waiving admission fees. And while 
it's certainly a low number of people and a short period of 
time, in 10 months no one has faced a revocation hearing. I 
think there are experiments like that going on in State courts 
and Federal courts around the country, which, if I'm fortunate 
enough to be confirmed, I would love to work on with the 
Sentencing Commission to figure out how we can reduce 
recidivism, since, as you say, I think there are about 650,000 
prisoners being released every year.
    Senator Brownback. I hope you can. One of the things that I 
did--have done a couple of times, is spend a night in prison, 
of my own volition. I've not been charged or convicted on 
anything, just to be clear for the record here. But it was 
really helpful. It's one thing to read about these things, it's 
another thing to sit there and smell it, and feel it, and be in 
the middle of it. I'd recommend, if you're approved--and I'm 
certain the Majority would appreciate your spending time in 
jail. I'm kidding here. That was unsolicited and unfair, so I'm 
kidding with that. But I think it would be real helpful, 
actually, to get kind of that feel for it and it may be useful.
    One other thing I want to suggest to you. We're just 
looking at a way of doing this. I don't know how to do it, but 
just to try to start some sort of formalized offering of a 
reconciliation process between victims and perpetrators. You've 
seen this be quite successful in some of these Third World 
countries that have had just massive problems. I'm thinking 
particularly of South Africa, Rwanda. They're starting in some 
other places, where they have a Truth and Reconciliation 
Commission.
    We have these horrific incidences that happened, but then 
you're trying to put a culture back together. I'm not 
suggesting that here and I'm not suggesting anything be 
required, but if there was a process where the victim and 
perpetrator could voluntarily access some sort of 
reconciliation process, I've been impressed at what I've seen 
other places do.
    I was in Rwanda, along with Senator Durbin, a couple of 
years ago, now. It had been 11, 12 years ago, prior to when we 
were there, that they had gone through the genocide, 800,000 
people killed in about a 6-week time period in a relatively 
small, intensely populated country. I was impressed that they 
were even functioning after that period of time. If you just 
think of the level of violence there, the level of retribution 
that people desired in that situation, and yet they had gone 
through this very aggressive process of trying to get the place 
to function again. And it's certainly not perfect, but I was 
impressed at how far they've come.
    I thought, that's something--we should see if there's a way 
to allow it on a voluntary basis. Our office would be willing 
to work with either of you, if you're interested in it. It's 
something we're going to try to pursue and see if there are 
things that we can develop on that, because we need both people 
not going back to jails often, and we need some form of a 
reconciliation so we can move forward as a society.
    Mr. Chairman, thank you very much. That is all my 
questions.
    Senator Feingold. Thank you, Senator Brownback.
    Back to Mr. Rowan. You were at the FBI General Counsel's 
Office for much of 2003. Were you surprised by the reports 
issued by the Department of Justice Inspector General 
documenting widespread problems with the use of national 
security letters from 2003 to 2006, after those authorities had 
been dramatically expanded in the PATRIOT Act?
    Mr. Rowan. I was, Senator. I certainly was aware, from my 
time at the FBI, that national security letters were a critical 
tool in widespread use. My limited sort of opportunity to see 
in a detailed way what sort of processes were followed, I was 
of the view that people were being very careful in the use of 
national security letters at the sort of headquarters level 
that I saw these things, and I was surprised at the issues that 
the IG uncovered.
    As you know, we in the National Security Division have 
begun a set of national security reviews, where we go out to 
field offices around the country, working with FBI OGC, to 
review case files, look at the predication for NSLs, among 
other things, make sure that the law is being followed.
    Senator Feingold. This relates to our discussion of the 
PATRIOT Act, because I actually received a call from the 
Director of the FBI apologizing that this report was coming 
out. This was after having had a former Attorney General refer 
to those of us who had questions about the way the PATRIOT Act 
was drafted as having seen the ``phantoms of lost liberty'', 
when in fact it was the statute itself that was insufficient in 
some cases.
    It was not just that there was misconduct or inappropriate 
use. We could have drafted the language about the NSLs more 
tightly to give more clear guidance. I think that is an 
important part of the story in terms of our role here, as well 
as your role in the Executive Branch.
    Mr. Rowan, I understand the National Security Division is 
providing support to the Office of Military Commissions, which 
is the Pentagon office with primary responsibility for 
prosecuting the detainees at Guantanamo Bay who have been 
charged with war crimes. What role are Justice Department 
officials playing in those prosecutions?
    Mr. Rowan. The department is supporting the prosecutions 
through providing prosecutors--and they have a few paralegals 
as well, I think--to work on commissions' cases. Obviously the 
FBI is also providing assistance by way of making agents 
available who are potential witnesses and things like that, 
helping put cases together the way we would put a case together 
in a Federal prosecutor's office.
    So the National Security Division is sort of the 
headquarters component within the Department of Justice that 
has gone out and tried to recruit Federal prosecutors who are 
willing to work on commissions' matters, give up their work in 
their home district and come work on detail.
    So we have approximately 12 or 14 prosecutors working on 
those matters, sort of teaming up with DoD personnel on the 
cases. Obviously the responsibility, the ultimate authority for 
charging decisions and strategic decisions all that, lies with 
the Office of Military Commissions and the Office of the Chief 
Prosecutor there.
    Senator Feingold. Do you believe that evidence obtained 
through coercive interrogation techniques should be offered in 
these trials?
    Mr. Rowan. I think that we obviously have to be very 
careful, very judicious in the decisions we make about what 
evidence we offer for admission, statements taken from 
detainess. The Military Commissions Act obviously lays out a 
standard and we need to, needless to say, comply with that 
standard.
    We need to develop--because the military commissions are 
not a set of proceedings with a long history, we need to sort 
of continue to develop our credibility going in front of the 
military judges on those issues, so we have to be careful not 
only to be asking for the admission of statements in a way 
that's consistent with the law, but we need to do--to make very 
careful decisions to ensure that everybody understands that we 
are being very reasonable and very judicious in what we offer.
    Senator Feingold. But does it trouble you at all that 
coercive interrogation techniques could be used to obtain 
evidence and that that information would be used at trial?
    Mr. Rowan. I think it--it really depends on the degree of 
coercion. I think that there's a lot of activity that, you 
know--the end of the spectrum is, anybody who's in detention 
might assert that there's an element of coercion about the very 
fact that they're in detention, whether it's the police 
department, station house down the street or in a camp in 
Afghanistan to the other end of the spectrum.
    And--and I think--so I--I think we just--we need to be very 
careful because we obviously have not only a statutory standard 
to meet, but we have a lot of people in this country and around 
the world who are watching closely to make sure that we are 
behaving in a responsible way and we need to make all the 
decisions we make about the evidence in light of that concern.
    Senator Feingold. If confirmed, you'll be responsible for 
overseeing implementation of the new FISA Amendments Act. As 
you know, I, and many others in Congress, have grave concerns 
about that legislation. It is critically important that this 
committee and the Intelligence Committee be kept up to date on 
what steps the executive branch is taking to implement this new 
law. What is your view of congressional oversight in making 
sure a statute like FISA works as is intended?
    Mr. Rowan. Senator, I think that congressional oversight 
is--is going to be an extremely important part of the way we 
implement this statute. Obviously there are built into the 
statute a number of means by which we can alert the Congress 
how it's being implemented. We in the National Security 
Division are going to be at the center of the effort, not only 
to draft the appropriate targeting and minimization procedures, 
but also to do the assessments.
    There's like 6-month assessments required under the 
statute, and those assessments are to determine whether or not 
the targeting and minimization procedures are being followed. 
Those assessments will, of course, be made available to the 
Judiciary and Intelligence Committees, and that's sort of one 
piece, the most obvious piece, that's right there in Section 
702.
    I would also note that with respect to the Protect America 
Act, the National Security Division of the Department of 
Justice did a great deal of work by way of trying to inform the 
Congress about what was going on with the way that was 
implemented. I think there was a total of sort of 37 
assessments done by the National Security Division, working 
with the DNI and the NSA, to ensure that that was being 
implemented properly, and the results of those assessments were 
briefed up here on the Hill.
    We are very aware of the congressional concern over the 
statute, the new procedures that we'll all be working under for 
the first time, not to mention the fact that there is, of 
course, a sunset which, while it seems like a long way away 
right now, will be on us before we know it. So we are fully 
aware and--and understand that the Congress expects to hear how 
this is working in great detail, and we are looking forward to 
making those reports.
    Senator Feingold. What in your background can you point to 
that will give us confidence that you will treat these 
committees as a partner in your work rather than an annoyance, 
that you will answer our questions, consult with us, and keep 
us informed of the things we need to know?
    Mr. Rowan. Senator, you know, I was a prosecutor doing 
ordinary criminal cases--murder cases, drug cases, the whole 
gamut--for a long time. In that, you learn very quickly that 
your credibility is extremely important. You don't go into 
court and--in front of a judge or a jury and promise things 
that you aren't going to comply with. You don't get it wrong. 
You ensure that every time you do something, you're building 
your credibility because you're going to make--you're going to 
ask that jury or that judge to make important and significant 
decisions at the end of the proceeding.
    That's, I think, the way we need to approach our work here. 
I'm used to that. It's a little bit different because we're now 
not marching off to court to convince a judge or a jury. Here 
we're coming up to the Congress to convince the Congress that 
the authorities that we've been provided are being used 
responsibly. But that's the first thing I sort of think about 
when I think about the importance of--of oversight and of 
maintaining a close communication with the Congress.
    Senator Feingold. Senator Brownback will probably consider 
this a partisan remark, but I wish more people who had come 
before us in the last few years had taken that attitude about 
working with this committee. I look forward to your taking that 
approach.
    Senator Brownback?
    Senator Brownback. I have no additional questions.
    Senator Feingold. Well, I want to thank all the nominees 
for their time today. Written questions for the nominees should 
be submitted by the close of business 1 week from today.
    Let me close by addressing a few comments specifically to 
Mr. Rowan. You have an important responsibility as only the 
second person to be nominated to the position of Acting 
Assistant Attorney General for the 2-year-old National Security 
Division. The new division has an important goal, to bring the 
disparate parts of the department that deal with intelligence 
and national security together under a single chain of command, 
thereby minimizing turf battles and allowing the department to 
more efficiently carry out its work to fight and prevent 
terrorism and espionage.
    But another important responsibility of the position to 
which you have been nominated is to be responsive to Congress, 
regardless of the fact that there is not much time remaining in 
this administration. During Mr. Gonzales' time as Attorney 
General, a serious rift developed between the department and 
Congress. Even with his departure, we frequently still do not 
get the answers we need in a timely manner. So, I hope you'll 
take that role seriously as well. Protecting Americans from 
terrorism is our number-one priority in Congress, as it is in 
the department, and this committee wants to be helpful to you 
in your work.
    The hearing is adjourned.
    [Whereupon, at 2:46 p.m. the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
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