[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
                      DEPARTMENT OF JUSTICE WITH 
                      ATTORNEY GENERAL ERIC HOLDER 

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

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 14, 2009

                               __________

                           Serial No. 111-83

                               __________

         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            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida               STEVE KING, Iowa
STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr.,      LOUIE GOHMERT, Texas
  Georgia                            JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
MIKE QUIGLEY, Illinois               JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois          TOM ROONEY, Florida
BRAD SHERMAN, California             GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York

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




















                            C O N T E N T S

                              ----------                              

                              MAY 14, 2009

                                                                   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.    17

                               WITNESSES

The Honorable Eric Holder, Attorney General, U.S. Department of 
  Justice
  Oral Testimony.................................................     1
  Prepared Statement.............................................     5

                                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.....................................    76
Prepared Statement of the Honorable Mike Quigley, a 
  Representative in Congress from the State of Illinois, and 
  Member, Committee on the Judiciary.............................    81
Letter from the Honorable Jason Chaffetz, a Representative in 
  Congress from the State of Utah, and Member, Committee on the 
  Judiciary......................................................    83
Post-Hearing Questions submitted to the Honorable Eric Holder, 
  Attorney General, U.S. Department of Justice...................    86
Response to Post-Hearing Questions from the Honorable Eric 
  Holder, Attorney General, U.S. Department of Justice...........    95


                      DEPARTMENT OF JUSTICE WITH 
                      ATTORNEY GENERAL ERIC HOLDER

                              ----------                              


                         THURSDAY, MAY 14, 2009

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

    The Committee met, pursuant to notice, at 10:15 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, Cohen, Johnson, 
Pierluisi, Quigley, Sherman, Weiner, Schiff, Sanchez, Wasserman 
Schultz, Maffei, Smith, Sensenbrenner, Coble, Gallegly, 
Goodlatte, Lungren, Forbes, Franks, King, Gohmert, Jordan, Poe, 
Chaffetz, Rooney, and Harper.
    Staff Present: Robert Reed, Majority Oversight Counsel; 
Crystal Jezierski, Minority Oversight Counsel; and Renata 
Strause, Majority Staff Assistant.
    Mr. Conyers. The Committee will come to order.
    Good morning. We welcome everyone to today's oversight 
hearing on the Department of Justice with the Honorable 
Attorney General Eric Holder, whose career and relationship to 
the House Judiciary is well-known. A distinguished public 
service career; Columbia University; Justice of Department's 
Public Integrity Section; Judge of the Superior Court; U.S. 
Attorney for the District of Columbia and Deputy Attorney 
General in 1997; Covington & Burling for a number of years; and 
confirmed as the Attorney General of the United States in 
February of this year.
    Most of us know the Attorney General. We welcome him and we 
agreed that would permit him to make his opening statement and 
additional comments, and then we will return to the regular 
order with Mr. Smith and myself making opening comments at that 
time.
    Welcome again to this hearing room, Attorney General 
Holder. You know most of the people, except for Quigley and 
three freshman Republicans who have never done this before. And 
so we are happy to have you with us.

            TESTIMONY OF THE HONORABLE ERIC HOLDER, 
          ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE

    Mr. Holder. Well, I am glad to be here. Good morning, Mr. 
Chairman, Ranking Member Smith, and Members of the Committee. 
Thank you for the opportunity to appear before you today to 
highlight the work and the priorities of the United States 
Department of Justice.
    Mr. Scott. Pull the mike closer.
    Mr. Holder. I would also like to thank you for your ongoing 
support of the Department. I look forward to working with the 
Committee and appreciate your recognition of the Department's 
mission and the important work that I think that we do. As you 
know, the Department is responsible for ensuring public safety 
against threats both foreign and domestic, ensuring fair and 
impartial administration of justice for all Americans, 
assisting our State and local partners, and defending the 
interest of the United States according to the law.
    As I testified during my confirmation hearings earlier this 
year, we will pursue a very specific set of goals. And already 
over the first 100-plus days of my tenure as Attorney General 
we have begun working to strengthen the activities of Federal 
Government that protect the American people from terrorism, and 
will do all that we can within the letter and the spirit of the 
Constitution to continue to do so.
    We have been working to restore the credibility of the 
Department that was badly shaken by allegations of improper 
political interference. We have been reinvigorating the 
traditional missions of the Department. I feel strongly that 
without ever relaxing our guard in the fight against global 
terrorism, it is imperative that the Department also embrace 
its historic role in fighting crime, protecting civil rights, 
preserving the environment and ensuring fairness in the 
marketplace.
    Before answering your questions, I would like to ask you to 
allow me to briefly talk about several of our current 
initiatives. I provided more detail on each of them in my 
written statement that I have submitted.
    With regard to national security, this is the highest 
priority of the Department, and that is to protect the American 
people against acts of terrorism. The Department has improved 
significantly its ability to identify, to penetrate, and to 
dismantle terrorist plots as a result of a series of structural 
reforms, the development of new intelligence and law 
enforcement tools, and a new mind-set that values information 
sharing, communication, and prevention. Working with our 
Federal, State, and local partners as well as our international 
counterparts, the Department is working tirelessly to safeguard 
America.
    With regard to Mexican cartels in the southwest border, the 
Department has undertaken significant work to confront the 
threat posed by the Mexican cartels and to ensure the security 
of our southwest border. We are increasing our focus on the 
investigations and prosecution of southbound smuggling of guns 
and cash that fuel the violence and corruption in Mexico, as 
well as attacking the cartels in Mexico itself in partnership 
with the Mexican authorities.
    We are also policing the border to interdict and to deter 
the illegal crossing of undocumented persons or contraband 
goods and confronting the large and sophisticated criminal 
organizations operating simultaneously on both sides of the 
border.
    With regard to Guantanamo, the Department is leading the 
work set out by President Obama to close the detention facility 
at the Guantanamo Bay Naval Base and to ensure that policies 
going forward for detention, for interrogation, and transfer of 
detainees live up to our Nation's values. Paramount is our 
commitment to doing everything possible, again, to keep the 
American people safe.
    With regard to financial and mortgage fraud, as we work to 
reinvigorate the Department's traditional law enforcement 
mission, we have focused significantly on financial crimes. The 
successful prosecution of Bernard Madoff is one tangible 
example of the progress we are making in this area, and the 
investigation of that particular matter continues.
    Moreover, the Administration has announced a new 
coordinated effort across Federal and State governments and the 
private sector to target mortgage loan modification fraud and 
foreclosure rescue scams, which aligns responses from Federal 
law enforcement agencies, State investigators and prosecutors, 
civil enforcement authorities, as well as the private sector.
    I appreciate the Committee's work with us on legislation to 
enhance the Department's criminal and civil tools and resources 
to combat mortgage fraud, securities and commodities fraud, 
money laundering, and to protect taxpayer money that has been 
expended on recent economic stimulus and rescue packages.
    Additionally I am committed to ensuring that homeowners who 
may have difficulty making mortgage payments do not experience 
discrimination and can benefit in equal measure from legitimate 
loan modification programs and other Federal programs designed 
to provide mortgage assistance and to stabilize home prices. We 
will use the full range of our enforcement authority to 
investigate and to prosecute this type of lending 
discrimination.
    With regard to civil rights, the Department continues to be 
fully committed to defending the civil rights of every 
American. And we are rededicating ourselves to implementing the 
range of Federal laws at our disposal to protect rights in the 
workplace, the housing market, and also in the voting booth.
    One important element of strengthening civil rights is to 
ensure fairness in the administration of our criminal laws. The 
Justice Department firmly believes that our criminal and 
sentencing laws must be tough, they must be predictable, they 
must be fair, and they must be free from unwarranted racial and 
ethnic disparities.
    The Justice Department has recently begun a comprehensive 
review of Federal sentencing policy. I have asked the Deputy 
Attorney General to convene and chair a Department-wide 
sentencing and corrections policy working group that will 
examine, among other issues, Federal cocaine sentencing policy. 
Based on that review, we will determine what sentencing reforms 
are appropriate, including making recommendations to Congress 
on changes to crack and powder cocaine sentencing policy.
    Another civil rights issue that is a priority for us is the 
enactment of an effective hate crimes legislation bill. I thank 
you, Mr. Chairman for your leadership in this area.
    Finally, with regard to the American Recovery and 
Reinvestment Act of 2009, that included $4 billion in 
Department of Justice grant funding that will be distributed by 
the Justice Department's three major grant-making offices: the 
Office of Justice Programs; the Office of Violence Against 
Women; and the Community-Oriented Policing Services Office, 
also known as COPS. This funding is being used to enhance 
State, local, and tribal law enforcement efforts, including the 
hiring of new police officers to combat violence against women 
and to fight Internet crimes against children. In addition, it 
will help reinvigorate the Department's traditional law 
enforcement mission, a key element of which is partnership with 
State, local and tribal law enforcement agencies and is vital 
to keeping our communities strong.
    As Governors, mayors and local law enforcement 
professionals struggle during the current economic crisis, we 
will remain steadfast in our commitment to fighting crime and 
keeping communities safe.
    Chairman Conyers, Ranking Member Smith, and Members of the 
Committee, I want to thank you again for this opportunity to 
address the Department of Justice's priorities. I will be 
pleased to answer any questions that you might have. Thank you.
    [The prepared statement of Mr. Holder follows:]
       Prepared Statement of the Honorable Eric H. Holder, Jr., 
              Attorney General, U.S. Department of Justice

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                               __________

    Mr. Conyers. Thank you very much, Attorney General Holder. 
We welcome your first appearance to the Committee today.
    We are very sensitive to the fact that this Administration 
and the Department have hit the ground running. These first 110 
days or so have not been short of activity and setting a new 
direction, and it has been exciting and breathtaking to watch.
    I wanted to raise a number of questions for you: the 
Department's use of state secrets privilege; the detention 
policy for detainees, both at Guantanamo and around the world; 
your Department's position with respect to possible prosecution 
of government officials who may have authorized the use of 
torture, and whether it might be appropriate to appoint a 
special counsel, as more than a dozen of the Committee Members 
of Judiciary have suggested; the release of additional, still 
secret Office of Legal Counsel memos relating to the so-called 
war on terror and the pending Office of Professional 
Responsibility investigation of those who wrote such memos; the 
Department's position in the Black farmers case, the Pigford 
matter; the decision to reverse course and oppose release of 
the detainee abuse photos, even after the Department told the 
Federal court that they would be released; and the proposal 
contained in a bipartisan measure I have introduced to create 
an independent blue ribbon commission to investigate and tell 
the American people about the real reason we entered into a war 
on terror.
    And so those are all the questions I have.
    Mr. Holder. Where would you like me to start, Mr. Chairman?
    Mr. Conyers. Well, you could start from the end and work 
back to the front if you would like.
    Wait a minute, let's hear from Mr. Smith. He has a much 
longer list than I do. Lamar Smith.
    Mr. Smith. Thank you, Mr. Chairman. And welcome, Mr. 
Attorney General.
    The President made a campaign promise to close the 
Guantanamo Bay terrorist detention facility before he had been 
briefed by our national security agencies. But keeping his 
campaign pledge could, in fact, endanger American lives.
    Before the Administration transfers detainees to the United 
States, the American people need to know why al Qaeda financial 
specialists, organization specialists, bomb makers and 
recruiters are being sent to our shores. They will certainly 
give new purpose To Neighborhood watch organizations.
    Under this Administration's approach, some terrorists will 
end up in American jails, but their detention facility could 
become a target for attack by terrorist sleeper cells here and 
around the world.
    The United States already gives such detainees more rights 
than any other country. If moved to the U.S., these terrorists 
could be granted even more constitutional rights. Supreme Court 
precedents indicate Federal courts can bestow constitutional 
rights upon people simply because they are on U.S. soil. Those 
rights could mean information obtained or heard after a 
terrorist has been captured is inadmissible as evidence. If 
terrorist attorneys forum shop for friendly Federal judges, 
they could be released into American communities and become a 
threat to our families and neighbors. And if detainees are 
transferred to other countries, there is no guarantee they will 
continue to be incarcerated. They could be released, returned 
to the battle field and kill Americans or our allies.
    According to Pentagon sources, at least 15 percent of 
released detainees have returned to fight our troops, and no 
doubt many more have gone undetected. Media reports indicate 
that 17 Uyghurs are in the process of being released to the 
United States. They are all associated with terrorist 
organizations. They admitted they were trained by known 
terrorists who were part of a group that threatened to kill 
civilians at the Olympic Games in China last year. All of this 
is occurring when there is nothing wrong with the GITMO 
facility. Following the Attorney General's trip to Guantanamo 
Bay, he admitted ``the facilities are good ones.''
    Before a single detainee is transferred or released 
anywhere, all unclassified files regarding their backgrounds 
should be made public. However, it appears the Administration 
is sharing more information about the detainees with foreign 
governments than it is with the American people. Anxious 
Americans shouldn't have to hope for a postcard from France to 
get information about terrorists. The Administration has 
replaced the phrase ``enemy combatants'' with ``detainees''; 
``war on terror'' with ``overseeing contingency operations'' 
and the term ``terrorism'' with ``man caused disasters.'' But 
these attempts to downplay dangerous threats to America don't 
change the fact that al Qaeda and others still want to kill 
Americans. Worrying about image more than substance trivializes 
the very real risk to American lives.
    I am concerned that in his first few months in office, this 
Administration has engaged in a pattern of behavior that is 
endangering the American people. First, the President announced 
the closing of Guantanamo Bay without any plan for the 
terrorists detained there, and has admitted that he cannot 
guarantee that those detainees who are released will not seek 
to attack our country again.
    Second, the Administration has made public sensitive 
information regarding top secret interrogation techniques, 
giving our enemies a road map to neutralizing these techniques 
in the future.
    Third, the Administration has expressed support for 
repealing the REAL ID Act, one of the central recommendations 
of the bipartisan 9/11 Commission. Repeal of REAL ID will once 
again allow terrorists, including those in the country 
illegally, to obtain U.S. drivers licenses and acquire the 
appearance of legitimacy.
    Fourth, the Administration has continued to ignore Federal 
law and tolerate State and local so-called ``sanctuary'' 
policies protecting illegal immigrants, including illegal 
immigrant criminals from deportation. Time and again we have 
seen Americans killed and injured by illegal immigrants who 
were protected from deportation by the sanctuary policies.
    Fifth, the Justice Department recently has come out in 
favor of equalizing the penalties for powder and crack cocaine, 
an intensely addictive drug. We shouldn't forget that it was 
the escalating violence in the inner cities across the country 
that resulted in the stiff crack penalty. Administration 
officials need to take responsibility for their actions. If 
they don't, the American people should hold them accountable.
    Mr. Chairman, with these concerns in mind, I welcome the 
Attorney General again and look forward to our hearing and to 
his testimony.
    Mr. Conyers. Thank you, Lamar Smith.
    We have several votes, it will probably take an hour. So we 
will stand in recess and we will resume as soon as the votes 
are concluded.
    Mr. Holder. Thank you.
    Mr. Conyers. Thank you, Attorney General Holder.
    [Recess.]
    Mr. Conyers. The Committee will come to order. Thank you 
for your patience, Attorney General Holder.
    Returning to my list of questions, we appreciated receiving 
the letter recently from the Office of Professional 
Responsibility investigation on the Department of Justice 
lawyers who wrote the Office of Legal Counsel memos on 
waterboarding and other troubling interrogation tactics.
    When do you expect the OPR report to be complete on this 
matter?
    Mr. Holder. I am not sure. I think we are at the end of the 
process. This has all been reported in the press. I don't think 
I would want to go into this much detail. But the lawyers had 
an opportunity to respond to the report. Those responses have 
been received. I understand that OPR is in the process of--I 
have not actually seen the report as of yet, but I would think 
that we are looking at a matter of weeks before it will be 
complete.
    Mr. Conyers. And we will hope that you will continue your 
relationship with this Committee, to arrange for the OPR 
director to testify before us--and possibly along with other 
former OLC attorneys--after the report is complete.
    Now, it has been said by yourself that you look at the OPR 
report of course, the facts and the law, to decide whether to 
appoint a special counsel on possible misconduct concerning 
torture, as more than a dozen Members of the Judiciary 
Committee have suggested. We know that you will make a careful 
judgment on this issue.
    Is there anything you can tell us about how you will make 
this judgment and the factors that you would consider, 
including whether that will include our international treaty 
obligations relating to prosecuting torture?
    Mr. Holder. As the President has said and I have said 
repeatedly with regard to investigating this matter, that for 
those agents who relied on, and in good faith relied on the 
statements in the bounds of those OLC memorandum, those are not 
matters that we think we would be looking into. Beyond that, as 
I have said, we would allow the law and the facts to take us 
wherever that was appropriate. So as things are developed, 
those are the--as matters develop, facts become more evident. 
Those are the kinds of things that would obviously flow into 
that determination.
    Mr. Conyers. I and others have proposed the creation of an 
independent blue ribbon commission with subpoena power, more or 
less modeled after the 9/11 Commission, to investigate and 
report on the interrogation and other policies previously 
undertaken in the name of the war on terror. The New York 
Times, Washington Post, Senator Leahy, and many others have 
endorsed this idea.
    Can we solicit your concurrence this afternoon?
    Mr. Holder. I have a hard enough time trying to help run 
the Justice Department. With regard to what Congress is going 
to do with regard to investigating things, I will leave that to 
you all to decide.
    Mr. Conyers. Yes. But that is why you are here today for 
us, to coordinate more effectively our relationship. You could 
just say yes.
    Mr. Holder. Well, if there were a proceeding, something 
that was put in place, obviously we would coordinate and 
cooperate. As I said, the selection or decision to do such a 
thing I will leave in your good hands.
    Mr. Conyers. Okay. Now, could you let us in on the 
reasoning involved in your recent decision to reverse course 
and oppose the release of detainee abuse photos, even after 
your Department has promised the Court they would be released?
    Mr. Holder. Well, I think the President consulted with the 
generals on the ground and made the determination that the 
release of those photos would endanger our troops. The concern 
was that the release of those photos could have a negative 
impact on the situation both in Iraq and in Afghanistan. And I 
think the President, as Commander in Chief, after talking to 
General Odierno in particular, thought that the posture that he 
has now put us in was the better one.
    We will have to argue that in court and we are prepared to 
do that. But I think the President has made a decision that is 
consistent with the best interests of our troops.
    Mr. Conyers. All right. Thank you so much. Lamar Smith is 
our Ranking Member and we would invite him for any questions.
    Mr. Smith. Thank you, Mr. Chairman. Mr. Attorney General, 
you recently said that the Administration would not bring 
terrorists into our country and release them. Do you consider 
individuals who were trained at terrorist training camps to be 
terrorists?
    Mr. Holder. Well, I think you have to make individualized 
determinations about a particular person. That is what we are 
doing with regard to the 241 who are at Guantanamo now.
    Mr. Smith. If someone were trained at a terrorist training 
camp by a terrorist, say, in the use of weapons against 
civilians, would they be a terrorist?
    Mr. Holder. It gets closer to the definition of a person I 
would agree would be a terrorist. Again, you have to look at 
the totality of who the person is, what kind of training the 
person received, whether in making these determinations, where 
that person was intent on using their terrorist training, what 
country perhaps.
    Mr. Smith. If the Treasury Department and the United 
Nations designated an organization to be a terrorist 
organization, would you consider members of that organization 
to be terrorists?
    Mr. Holder. Again, it would depend on the connection that 
that person had to the organization. If that person is a 
leader----
    Mr. Smith. So someone could be trained as a terrorist, 
trained in all the capabilities of a terrorist, and yet the 
Administration might not consider them to be a terrorist?
    Mr. Holder. I am not saying that. What I am saying is that 
I would want to look at specifics. You are throwing 
hypotheticals at me, and I am not sure I can respond to that as 
well as if I had in front of me a file, like we are putting 
together on the Guantanamo detainees, and I could look at a 
file on somebody and tell you if that person was in fact----
    Mr. Smith. Their membership in a terrorist organization, 
therefore, is not enough to satisfy the Administration that 
they are terrorists?
    Mr. Holder. I would certainly think that would be an 
indication, a marker, that that person is likely to be 
considered a terrorist.
    Mr. Smith. But that alone would not be enough if they were 
just members of a terrorist organization?
    Mr. Holder. One of the great Justices of the Supreme Court 
was a member of the Ku Klux Klan at one point. So mere 
organization doesn't always necessarily take you to a 
conclusion. I think we have to be thoughtful. We have to be 
careful. We have to be complete in the examinations that we do, 
to make sure that we are going to label somebody as a 
terrorist, and then treat them accordingly.
    Mr. Smith. Right. Maybe we just have to disagree. I think 
someone who has been trained at a terrorist training camp by 
terrorists, has been trained in the use of weapons against 
innocent civilians, I consider to be a terrorist even if they 
haven't committed a terrorist act yet. But apparently that 
wouldn't necessarily satisfy the Administration?
    Mr. Holder. Given all the facts that you now have laid out 
as opposed to going through each one separately, I would say we 
agree. I would agree with what you have just said.
    Mr. Smith. Okay. Good. Because I thought I had asked that 
just a minute ago. But I am glad you agree.
    What if the FBI and the Homeland Security had expressed 
concerns about the release of individuals at Guantanamo Bay; 
would that be persuasive to the Administration not to release 
those individuals?
    Mr. Holder. That would certainly be factors that we would 
take into account. But understand that in making determinations 
about the release, transfer of the people at Guantanamo, the 
thing that is going to guide this Administration more than 
anything is the safety of the American people. We are not going 
to do anything, anything that would put the American people at 
risk. Nothing.
    Mr. Smith. Although the President has said that he can't 
guarantee that the people who might be released might not kill 
Americans.
    Mr. Holder. Well, we will go through those files, and the 
determinations that we make will be based on what we see in the 
files and the predictions that we can make about their future 
behavior.
    Mr. Smith. Let me go back to the previous question, because 
I was glad to hear you say that those individuals who had been 
trained at terrorist training camps by terrorists, perhaps in 
the use of weapons against innocent civilians, would be 
terrorists; because that is exactly what I understand the 
Uyghurs--would apply to the Uyghurs and that is how they have 
been trained. And yet the Administration is considering 
releasing the Uyghurs.
    Is that the case or is that contradictory?
    Mr. Holder. The determination has been made by a court of 
the United States of America that the Uyghurs have to be 
released. That is not a question for this Administration to 
decide. The courts of the United States have looked at that and 
made that determination. The Uyghurs--the Bush administration 
approved the release of the Uyghurs, I guess, back in 2003. So, 
again, this is not this Administration making the 
determination.
    Mr. Smith. But if any of those individuals fit the 
definition of terrorist that you just agreed to, I presume that 
the Administration would object to their being released.
    Mr. Holder. Well, in terms of release, we don't have a 
choice. They have to be released, unless you would ask us to 
defy an order from the United States court.
    Mr. Smith. Well, either that, or you can provide additional 
information on their background or training that might persuade 
a court not to release them.
    Just one more question, if I may, Mr. Attorney General. 
Recently you were----
    Mr. Holder. The Bush administration approved the release of 
both of these folks back in 2003. Again, it is not this 
Administration. It is the courts, the prior Administration, 
that has made a determination that the Uyghurs have to be 
released. It is not this Administration.
    Mr. Smith. Again, I won't repeat it. But I liked your 
definition of a terrorist that you and I just agreed to, 
because I think that might be applicable.
    You traveled in Europe a week before last, I believe, and 
asked countries to release--or to take individuals who are now 
incarcerated in Guantanamo Bay. I assume that you provided 
those governments with information about those detainees.
    Don't you think that the American people deserve to have 
that same information about those detainees that you provided 
to foreign countries?
    Mr. Holder. My trip was not--as you say, I went and spoke 
to our allies and talked about the need for a unified approach 
to closing Guantanamo. We did not have any specific 
conversations about numbers of people they would take, specific 
detainees. The conversation was very general in nature.
    Mr. Smith. I would take your word for it. But that does 
contradict what the heads of state said you asked them for.
    Mr. Holder. Not heads of state. There was a report that I 
read about somebody who said that I asked Germany to take 10 
people or something like that. That conversation never 
happened.
    Mr. Smith. Did not occur?
    Mr. Holder. Did not occur.
    Mr. Smith. Okay. Thank you, Mr. Chairman.
    Mr. Conyers. Thank you. Chairman of the Constitution 
Committee, Jerry Nadler.
    Mr. Nadler. Thank you, Mr. Chairman.
    Mr. Attorney General, in January of last year, John Durham, 
a career Justice Department prosecutor, was appointed by then-
Attorney General Mukasey to investigate the destruction of 
videotapes of CIA interrogations. At that time we asked that 
the underlying conduct whether U.S. interrogations of detainees 
complied with or violated the law--also be investigated. That 
request was denied by Attorney General Mukasey.
    As you know, we recently renewed our request with your 
predecessor, more recently with you, for appointment of a 
special counsel to investigate who is responsible for the 
torture of detainees and to hold accountable those who may have 
violated the law. We continue to believe that appointing a 
special counsel is not only mandated by the law because the law 
says that where torture occurred under U.S. jurisdiction, which 
is undeniable, there must be an investigation and, if 
warranted, prosecutions, if warranted. And where there is a 
possible conflict of interest, there should be a special 
counsel. And all those conditions seem to be met.
    We continue to believe that appointing a special counsel 
removes any claim that political considerations inappropriately 
influence prosecutorial decisions and may be the only way to 
remove this as a major distraction.
    My first question is: What is the status of Mr. Durham's 
investigation, and when can we expect the report on that to be 
completed? And will the conclusions be shared with us?
    Mr. Holder. I am a little reluctant to talk about--I know 
that Mr. Durham is still at work. He is still investigating. He 
spoke to the Deputy Attorney General I believe a couple of 
weeks or so ago, and we had an update on his work. And he is 
still proceeding with his investigation.
    Mr. Nadler. But you have no estimate as to when we might 
have some sort of conclusion?
    Mr. Holder. I don't at this point. He laid out for us 
certainly what he is going to be doing over the next 2 to 3 
months or so. But I don't have a sense--I can't say with any 
degree of certainty when he is going to be finished.
    Mr. Nadler. Let me ask you this. Given that Mr. Durham has 
a team of lawyers and investigators who already have been 
cleared to review classified and sensitive information and are 
deep into this issue, would you think it might be a good idea 
to expand his jurisdiction to include investigation of actual 
interrogation policy and practice and ensure that his status is 
that of a special counsel, subject to the guidelines in your 
regulations?
    Mr. Holder. I think that the decision first has to be 
whether or not that is appropriate. And as I have indicated, no 
one is above the law. We will look at the facts, we will look 
at evidence, and make the determination that is appropriate 
given the information that we have in the Justice Department in 
making that ultimate determination.
    Mr. Nadler. Okay. In a recent press conference, President 
Obama agreed that the state secrets privilege should be 
modified and that, quote, right now it is overbroad, closed 
quote.
    You have directed your Department to determine when it is 
legally appropriate to assert privilege. Could we agree that 
unless the case involves the actual parties to a secret 
espionage agreement, like a spy suing the U.S. for failure to 
pay for services or something like that--which was an actual 
case a number of decades ago--that that aside, it is never 
appropriate to raise the privilege to foreclose litigation 
altogether from the outset, based on a claim that the entire 
subject matter is a secret, and instead that the privilege 
should be asserted as an evidentiary privilege on an item-by-
item basis?
    Mr. Holder. What I have asked to be done, and it is almost 
complete, is for a review to be done of those cases where we 
have invoked the privilege, to find out what was the basis for 
it; could we have done it in a more surgical way so that the 
case did not need to be dismissed, and perhaps could have used 
it in the way you have described as an evidentiary one.
    In addition to that, we are working on a proposal about how 
we think we might modify the way in which the privilege is used 
by the executive branch. And once those two things are put 
together, it would be my hope to share that with this Committee 
to try to work on a solution to----
    Mr. Nadler. You realize that there is legislation pending 
before this Committee, which I am sure you have looked at.
    Mr. Holder. I understand that. So I would hope that in 
connection with that legislation, the other legislation, the 
other side, that we could consider our proposal as well.
    Mr. Nadler. Thank you. In your testimony, you noted the 
recent conviction of Mr. al-Marri, and I applaud the 
Administration for bringing him to justice in our courts. As a 
result, however, the Administration also avoided Supreme Court 
review of a critical question, as the Bush administration did 
in a similar situation in the Padilla case.
    The question is: Does the President have the authority, as 
the Bush administration claimed he did, to detain individuals 
indefinitely without charge? Now, I have two questions. Do you 
believe that the President has this power?
    Mr. Holder. To detain people indefinitely?
    Mr. Nadler. Indefinitely, without charge. The Bush 
administration called it ``enemy combatants.'' Nobody calls it 
that anymore. But the claim of right was made that the 
President, under exigencies of Article 2 powers or A(1)(f) 
powers, has the right to detain people even in the United 
States--American citizens or otherwise--indefinitely, without 
charge, if he thinks they are what he called an ``enemy 
combatant.''
    Mr. Holder. We have a fundamentally different view than the 
Bush administration did about the Article 2 powers that the 
President has. There are certain powers that, I guess, the 
Commander in Chief has with regard to detaining people under 
the laws of war. But the notion that a President, in an 
unfetterred way, not tied to some law, has that ability is not 
something we agree with.
    Mr. Nadler. So you would agree that anyone held ultimately 
has to come to some sort of trial or proceeding of a judicial 
nature?
    Mr. Holder. Well, as I said, with the laws of war, it has 
been traditional that people are held for the length or the 
duration of the conflict.
    Mr. Nadler. It has been traditional that people are 
captured on a battlefield under arms--are labeled prisoners of 
war and are captured. But picking up somebody in Peoria, 
Illinois, and saying we have secret intelligence that he is an 
agent of al Qaeda, would you agree that any such person must 
have judicial recourse?
    Mr. Holder. That is what we are trying to do with regard to 
the people of Guantanamo; to determine which of those people 
can be released, who can be tried. It is not the position of 
this Administration that we want to hold people for indefinite 
periods of time.
    Mr. Nadler. I am asking a more specific question. I 
understand the benevolent intent of this Administration. I do 
not mean that sarcastically. I am asking whether you think the 
President or the executive branch has the authority to hold 
someone indefinitely without judicial recourse.
    Mr. Holder. And I thought I answered it. Without being tied 
to some statute, to some international agreement, some custom 
in the way in which this Nation has always conducted itself, I 
do not believe the President has that power. It has to be tied 
to something.
    Mr. Nadler. Thank you.
    Mr. Conyers. The patient, distinguished Chairman Emeritus 
of the Committee, Jim Sensenbrenner.
    Mr. Sensenbrenner. Thank you very much, Mr. Chairman. After 
hearing that, I was tempted to take the gentleman's words down, 
but I won't.
    Mr. Attorney General, thank you very much for coming, and 
welcome here. As you know, I was the Chairman of the Committee 
after 9/11 and spearheaded the effort to tear down the wall 
that separated intelligence and law enforcement, and updated 
our laws so that intelligence officials had the same tools to 
combat terrorism as law enforcement has had for a number of 
years to combat drug dealers and child pornographers.
    The USA PATRIOT Act was passed with wide bipartisan 
support. And over 3 years ago, I again spearheaded the effort 
to reauthorize the PATRIOT Act, a law which the FBI Director 
and other intelligence professionals have all testified has 
helped save lives and to protect our homeland.
    I am a cosponsor of the legislation introduced by Ranking 
Member Smith to extend the three expiring provisions of the law 
crucial to our intelligence professionals.
    I know you have been the Attorney General for only a very 
short period of time, but long enough to set departmental 
policies. The clock is ticking on this legislative session of 
Congress, and those expiring provisions will disappear on 
December 31st unless affirmatively extended before that time.
    When will you submit to Congress the Administration's 
proposal for the reauthorization of the PATRIOT Act?
    Mr. Holder. We want to look at those three provisions. They 
are, I think, important provisions that can be used, I think, 
effectively in the fight against terrorism. I want to see how 
they have been used, have a better sense of what the field 
experience has been with those provisions before we make a 
determination.
    I expect that we will support the reauthorization, but I 
really would like to just have some more empirical information 
about the way in which they have been used and their 
effectiveness. And it is possible there may be changes that we 
would suggest and would work with the Committee about with 
regard to those three provisions.
    Mr. Sensenbrenner. The concern I have is one of those three 
provisions is the so-called lone-wolf terrorist provision, and 
that was passed specifically to plug the hole in the conspiracy 
laws which have been effective in dealing not only with 
terrorist conspiracy, but conspiracies that violate other laws 
and the civil liberties of American citizens. And if there is a 
gap in that, that means that one individual might be able to 
slip through the net and not be indicted before actually 
committing a crime and placing maybe thousands of people at 
risk.
    Can you give me a commitment of a deadline on when the 
Administration will submit its recommendations relative to the 
three expiring provisions?
    Mr. Holder. Yeah. We will certainly express our views with 
sufficient time to allow for debate, conversation, the 
potential for modifying them well before they expire, I guess 
at the end of December.
    Mr. Sensenbrenner. Well, I point out that, according to the 
schedule that the Majority party has released, that we are 
supposed to adjourn this session of Congress, sine die by the 
end of October. And that gives us effectively four session 
months to have a bill introduced, go through the hearings, have 
both houses pass the legislation--if it needs to be 
conferenced, have that happen--and to send it off to the 
President for his consideration. That is not a lot of time, 
particularly given the very ambitious schedule that the 
Democratic leadership has announced for July. And, in fact, we 
have to deal with appropriations.
    I would really strongly urge you to step on the accelerator 
on this, because I just don't want to see us leave town and 
leave the American public to end up wanting in terms of the 
importance of, I believe, all three of these measures, but 
particularly the lone-wolf terrorist provision.
    Mr. Holder. I am confident that we can do this in such a 
way that we will meet all the deadlines, even given the limited 
amount of time you indicated. These are obviously very 
important provisions that need to be considered in a very 
serious way. And I think we need to take the appropriate 
action. I don't want to take anything, any tools away from the 
very capable men and women who defend this Nation. With that in 
mind, we will be forwarding our views to Congress, as I said, 
as quickly as we can.
    Mr. Sensenbrenner. Thank you, General.
    Mr. Conyers. Thank you. The Chairman of the Crime 
Subcommittee, Bobby Scott of Virginia.
    Mr. Scott. Thank you. And thank you, Mr. Attorney General, 
for joining us today. In 1963 there was a march on Washington, 
one result of which was a policy that there be no 
discrimination in Federal contracts, and that was followed 
pursuant to President Johnson's 1965 executive order for 
decades.
    Now, do you support the ability of those hiring people with 
Federal money to deny jobs to people solely based on religion? 
And, if so, what would you tell a devoutly religious 
businessman why he can't discriminate with his own money?
    Mr. Holder. Why he can't discriminate?
    Mr. Scott. A devoutly religious businessman cannot 
discriminate in hiring with his own money. He cannot 
discriminate with his own money under Federal law. How can we 
therefore have a policy allowing people with Federal money 
hiring people and denying opportunities solely based on 
religion?
    Do you support the idea that we should allow discrimination 
to take place in Federal contracts?
    Mr. Holder. I think that we want to have Federal 
contracting done on a basis of ability, need, and without 
respect to religion, race, gender, sexual orientation. That is 
the kind of America I think this Administration wants to have.
    Mr. Scott. Thank you. Mandatory minimums have been studied 
in sentencing, and they have been found often to violate common 
sense, generally a waste of taxpayers' money. In dealing with 
the 100 to 1 crack/powder disparity, there is a consensus that 
something has to be done.
    Will your recommendations on the crack/powder/cocaine 
disparity consider eliminating mandatory minimums altogether in 
those cases and allow sentences to make sense in each case; 
especially since the mandatory minimums are now based on the 
total weight of the whole conspiracy creating the girlfriend 
problem, where if a girlfriend takes a message or drives a car, 
technically involved in the conspiracy, her sentence is based 
on the weight of the entire conspiracy, resulting in girlfriend 
getting sentenced to 10, 20, 30 years or more.
    Will you consider eliminating the mandatory minimums in the 
crack/powder recommendations?
    Mr. Holder. I have asked the Deputy Attorney General to 
head up a task force that is looking at Federal sentencing laws 
to come up with a way in which we make them more equitable, we 
make them more effective. The head of our Criminal Division, 
Lanny Breuer, testified on behalf of the Administration in the 
Justice Department of my strong belief, and the President's, 
that we need to do away with the disparity that exists between 
crack and powder sentencing.
    And so I think that we want to take all of that together, 
especially see what David Ogden, who is the Deputy Attorney 
General, comes up with with regards to his look at sentencing, 
the task force, and see how useful are mandatory minimums--are 
there places where they need to be dialed back? That is all for 
us on the table.
    Mr. Scott. Thank you. In terms of financial crimes, ID 
theft, organized retail theft, and of course the mortgage fraud 
and other financial fraud, we had testimony that FBI agents 
only had 250 agents with accounts backgrounds assigned to these 
cases. The savings and loan crisis, where it was just about 
one-third the size of this problem, they had about 1,000. Do 
you have sufficient money to investigate and prosecute 
financial crimes? And if not, will you let us know what your 
needs are?
    Mr. Holder. One of the things that I told the President was 
that the Department that I come back to is different from the 
one that I left. There is a national security component to the 
Department of Justice that is much larger than existed when I 
left. And I think that is totally justified. We don't want to 
do anything to harm that effort.
    But I also think that what I call the traditional parts of 
the Department, and among them the part that you described, 
this notion of looking at financial crimes has not gotten the 
attention and the resources that are necessary. In the 2010 
budget we have greater amounts of money to allow us to hire 
more agents and more prosecutors in that field with regard to 
financial crimes.
    Mr. Scott. And, finally, under torture, we have heard in 
the public discourse that it worked. We were scared. We were 
following orders which, frankly, might have been illegal. We 
know, from after World War II, that we tried and prosecuted as 
capital offenses Japanese soldiers that tortured American 
soldiers, and we prosecuted them as capital offenses. If 
detainees were tortured to death, is it possible that no one 
committed a crime?
    Mr. Holder. If somebody were tortured to death, clearly a 
crime would have occurred.
    Mr. Conyers. Thank you. The Chair recognizes Howard Coble, 
senior Member of the Judiciary Committee, North Carolina.
    Mr. Coble. Thank you, Mr. Chairman. Mr. Attorney General, 
good to have you with us.
    Mr. Attorney General, as recently reported, President 
Obama's intelligence chief confirmed that some Guantanamo 
inmates may be released on U.S. soil and receive assistance to 
return to society. And I am quoting now: ``If we are to release 
them in the United States, we need some sort of assistance for 
them to start a new life,'' said National Intelligence Director 
Dennis Blair at his first press conference.
    General, would the Administration allow and/or encourage 
the use of taxpayer money to be used to provide welfare or 
social assistance to detainees released from Guantanamo?
    Mr. Holder. No final decision has been made with regard to 
what is going to happen to those 241 people who are in 
Guantanamo, those who would be eligible for release or 
transferred. No final decision has been made as to where they 
would go, how they would be treated. So that is not an issue 
that we have yet confronted. We are still in the process of 
trying to make the determination about who is going to be 
prosecuted, who is eligible for transfer or release. That is 
the focus of our attention at this point.
    Mr. Coble. I don't want to be portrayed as an inflexible 
redneck kook, but I believe this would be reckless fiscal 
exercise to provide assistance to that end.
    Let me shift, Mr. Attorney General, to the domestic side. I 
want to continue what Mr. Scott said regarding the retail 
crime, and it is indeed a problem as you know. I am told that 
the FBI has participated in several successful prosecutions of 
several organized retail crime rings in North Carolina. And 
this, as you know, is strongly supported by our retail 
community.
    And to continue your response to Mr. Scott, do you all have 
the wherewithal--that is, the operation and the financial--to 
make this a front-burner issue?
    Mr. Holder. I think what we have in the 2010 budget is a 
down payment on restoring--to the extent that I think it needs 
to be restored--the capability of the FBI in that regard. I 
think that we are capable. I think we can be more capable. And 
I think with the resources that we are getting next year, I 
think in the out budget year, that we will be at a place where 
I think we will have the capacity, and I think we need to deal 
with those issues.
    And we are also in the process of working through a 
proposal that we will be sharing with the country about what we 
want to do, I think really generally, with regard to financial 
crimes.
    Mr. Coble. The loss that retail merchants are incurring, as 
you know, is substantial.
    Let me shift back to terrorism. Recent press reports 
indicate that the Administration is currently considering 
releasing Shakir Amir. Now, according to one report--and I am 
quoting again--British authorities are demanding the release of 
this guy. He is a bin Laden confident that trained aspiring 
terrorists at al Qaeda camps, met with the shoe bomber, Richard 
Reid, and traveled widely in the United States, meeting with 
embedded terrorists and sharing an apartment with Zacarias 
Moussaoui who was convicted in 2006, if you recall, for his 
complicity in the 9/11 plot.
    Do you know if these assertions are accurate that I have 
just quoted, Mr. Attorney General?
    Mr. Holder. Congressman, I will be honest with you, I am 
not familiar with that name and that case. I am not in a 
position to answer that question.
    Mr. Coble. If you will, put that name in the front of your 
head for future reference, because I don't see how this guy 
could not be classified as a terrorist.
    Mr. Holder. I will certainly do that. But I would also 
emphasize that in this review of the people at Guantanamo, the 
guiding principle is the safety of the American people. And we 
are not going to release anybody, transfer anybody who would 
pose a danger to the American people. That is simply not going 
to happen. But I am not familiar with the name of that person.
    Mr. Coble. I thank you for being with us, Mr. Attorney 
General. Mr. Chairman, I want you to note that I am--Mr. 
Chairman, Mr. Chairman, I want you to note that I am beating 
the red light before it illuminates.
    Mr. Conyers. That has never happened before here, sir.
    Mr. Coble. I yield back.
    Mr. Conyers. Thank you. The Chair recognizes another Member 
from North Carolina, the distinguished gentleman Mel Watt, who 
serves on the Finance Committee as a Subcommittee Chairman as 
well as a senior Member of this Committee.
    Mr. Watt. Welcome, Mr. Attorney General. I am a little 
reluctant to follow somebody who characterizes themselves as--
what did Howard Coble call himself?
    Mr. Weiner. He said he is not a redneck kook.
    Mr. Coble. Not an inflexible redneck kook.
    Mr. Weiner. Just a regular redneck.
    Mr. Watt. Just a regular redneck.
    Mr. Attorney General, let me follow up on Representative 
Scott's question about this crack/powder disparity first, just 
long enough to find out when you anticipate that your task 
force will be completing its work and reporting to you, and 
when you will be able to report or make a public position known 
on that? That is an issue, of course, that has been hot and 
heavy, as you are well aware, in minority communities because 
of the substantial disparity between crack and powder 
sentencing. Can you give us a timetable?
    Mr. Holder. I would think the task force will be something 
that will take months to do a complete job. But we have already 
indicated our desire to eliminate that disparity between crack 
and powder sentences. Lanny Breuer, as I said, testified about 
that at a hearing, I think last week, or perhaps the week 
before. There are other things that we look at, but this 
Administration has made the determination that it is our belief 
that we have to eliminate the disparity with the crack and 
powder sentencing.
    Mr. Watt. The problem with that is once you make that 
public pronouncement and, then, at the same time, you say you 
have a task force looking at it, then it becomes an excuse for 
people not to do anything until the task force comes back and 
makes some affirmative recommendations.
    Would you support following prior--at least in the 
interim--following prior Sentencing Commission recommendations 
regarding at least reducing if not completely eliminating the 
disparity?
    Mr. Holder. I guess what I would want to do is make these 
changes in their totality. And the concern I would have about 
reducing as opposed to eliminating the disparity is that we 
might get stuck at----
    Mr. Watt. I am in full accord with you, but that creates a 
pretty strong imperative to push the task force to move in a 
quick and timely fashion, because in the interim between now 
and then, people are still being sentenced under the guidelines 
that were in existence, and there is a substantial disparity 
that continues to exist.
    That really wasn't my primary line of questioning.
    Mr. Holder. I don't disagree with you. This is a priority 
for me. And we want to try to get this done as quickly as we 
can.
    Mr. Watt. Let me go off on a subject that the Chair laid 
the foundation for because I do serve on Financial Services and 
on Judiciary, and last term of Congress actually chaired the 
Oversight Subcommittee on Financial Services and got a lot of 
public comment about who caused this meltdown and all this 
criminal activity that went on, and when are you going to have 
a set of hearings in the Oversight Subcommittee about how this 
occurred.
    I think there is a strong belief that something aggressive 
needs to be done to investigate and prosecute people who were 
part and parcel of creating the financial meltdown, creating 
the credit crisis that we are in. And while the Madoff case is 
a big public case, it is a separate kind of thing than the 
meltdown itself, although it was characteristic of what was 
going on in other elements of the financial services industry.
    I guess what I am more interested in is having some 
assessment of the number of cases that your Department is 
pursuing on an ongoing basis, because the last Administration 
basically devoted all of its resources to the terrorism front. 
We are not being critical of that. But virtually no resources 
were devoted to this, even though it was happening and playing 
itself out on their watch.
    Could we commit you to just give us regular updates on the 
number of cases--I know you can't talk about the details of 
each case, but the kinds of cases that you are pursuing going 
forward?
    Mr. Holder. That is fine. I think that is a perfectly 
legitimate oversight question. I know that, for instance, the 
FBI has under investigation now--and I might be transposing 
numbers--either 1,200 or 2,100 mortgage fraud cases. And that 
is the kind of information that we can share. And I will clear 
that up once I have had a chance to look at our materials, what 
that exact number is. With regard to the kinds of cases that we 
are looking at and the numbers of those cases, I would be more 
than glad to share that information with the Committee.
    Mr. Watt. Mr. Chair, let me make one other entreat to make 
sure. When you say ``mortgage fraud,'' a lot of the attention 
has gone to the people who are the borrowers and their fraud in 
the process. That is a legitimate concern. But I want to make 
sure that your mortgage fraud universe includes the people that 
were fraudulently engaging in misconduct on the other side 
also.
    Mr. Holder. The focus of the FBI efforts, when I talk about 
that 2,100 or 1,200, is really one of the lender; people who 
have done things in a fraudulent way with regard to lending 
money as opposed to those who might have done other things in 
trying to receive money.
    Mr. Watt. Thank you, Mr. Chairman, for your indulgence. I 
yield back.
    Mr. Conyers. The Chair recognizes Bob Goodlatte of 
Virginia, a senior Member, former Chairman of the Agriculture 
Committee.
    Mr. Goodlatte. Thank you, Mr. Chairman. And welcome, 
Attorney General Holder.
    I would like to ask you about the issue of the use of 
foreign court precedents in decisions in our Federal court 
system. A particular concern is with the Supreme Court. You may 
be aware that before he joined the Department of Justice, 
Deputy Attorney General Ogden represented the defendant in a 
landmark case of Roper v. Simmons, which ultimately held that 
the death penalty could not be used as punishment for criminals 
under the age of 18. In the brief filed by Ogden and others, he 
asserted that almost without exception the other nations of the 
world would have rejected capital punishment of those under 18.
    As the top ranking law enforcement official of the United 
States charged with upholding and defending the Constitution 
and advising the President of the legality of his actions, do 
you agree with Ogden that the Supreme Court should rely on the 
opinions of other nations when interpreting the U.S. 
constitution? And will you rely on the opinions of foreign 
nations and foreign bureaucratic tribunals when advising the 
President on the meaning of constitutional provisions?
    Mr. Holder. Well, I think--I don't remember what the number 
was in that case, but at least a couple, I believe, of the 
justices who not necessarily relied on but certainly referred 
to----
    Mr. Goodlatte. They cited it in their opinion. You are 
correct.
    Mr. Holder. They referred to what the state of the law was 
in other countries. And it seems to me that taking into account 
what is going on in other countries is not necessarily a bad 
thing. I think we have to obviously rely----
    Mr. Goodlatte. In looking to the meaning of the 
Constitution, though, how could you look to the Constitutions 
or laws and interpretations of those laws by justices in other 
countries to find meaning in the U.S. Constitution?
    Mr. Holder. That is what I was going to say. But with 
regard to making determinations about what the state of the law 
in this country should be, the primary focus, the first place 
we go is the Constitution of the United States and the laws 
that you all, Members of Congress, have passed over the years. 
The notion of looking at foreign law, foreign customs, is 
something that I think can perhaps in some ways be useful but 
can't be the primary focus for any kind of determination.
    Mr. Goodlatte. I know a number of the justices expressed 
some concern about that trend of citing foreign court 
precedents as well. But would you ever approve a Justice 
Department pleading that asked a court to rely on foreign laws 
and precedents in interpreting a provision in the United States 
Constitution?
    Mr. Holder. It is hard to answer that question in a vacuum. 
It would depend, I suppose, on the case. Again, my focus always 
would be on what is the Constitution saying, what do our laws 
say, what do we glean from the way in which this Nation has 
dealt with that issue? It may be that there is something about 
the way in which another country has done something----
    Mr. Goodlatte. Wouldn't it undercut the legislative 
authority of the United States Congress and the actions of our 
executive branch and the appropriateness of the judicial 
decision making process to turn to the precedents of another 
country in telling our Supreme Court or lesser court how to 
interpret our Constitution?
    Mr. Holder. Again, I wouldn't look toward foreign law to 
tell or ask the Supreme Court this is how you should interpret 
our Constitution based on what some other country has done. The 
primary focus has to be on what our Constitution says, how that 
Constitution has been interpreted, stare decisis, court 
opinions, what Congress has done. Those are the things that I 
think we have to focus on, and that has to be the primary 
emphasis for any position that the Department would take.
    Mr. Goodlatte. Thank you. I would encourage you to take a 
strong stand.
    Let me move to another subject. As you may know, the 
Judiciary Committee has commissioned a task force to 
investigate the potential impeachment of Judge Thomas Porteous 
of the Eastern District of Louisiana. The gentleman from 
California, Mr. Schiff, is the Chairman of that task force. I 
am the Ranking Minority Member. Do we have your commitment to 
work with us in a timely fashion to investigate this matter?
    Mr. Holder. Yes. There are documents, I understand, that 
are contained in the criminal division of the Department of 
Justice, and we will work with you to make materials available 
so that you can do the duties that are incumbent upon you.
    Mr. Goodlatte. Thank you. We are working in a very 
bipartisan fashion on this and attempting to take it very 
seriously. And the cooperation of the Justice Department which 
has investigated this situation is very, very important to the 
process of our undertaking this task force and determining 
whether impeachment is an appropriate step.
    And then lastly, let me ask you about section 642 of the 
Illegal Immigration and Reform and Immigrant Responsibility Act 
of 1996 which 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 this law, many so-called 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. They were released back into society to 
murder American citizens.
    Is the Administration committed to enforcing section 642 
and stopping cities from using these sanctuary policies to 
refuse to cooperate with law enforcement and the Immigration 
Service?
    Mr. Holder. Well, I think we have to look at--the 
immigration problem is one we have to look at holistically. We 
have substantial numbers of people that are in this country on 
an undocumented basis, because we have not come up with a 
policy that really deals with border security and deals with 
what the status is of those people who are presently here.
    Mr. Goodlatte. But we very definitely come up with a very 
clear policy on the requirement that communities cooperate with 
the Department of Homeland Security in their investigation of 
criminal aliens and their access to information so that they 
can determine, when somebody is charged with a crime, whether 
they should be subject to deportation from the country, and 
other measures to protect society, and yet some cities are 
using their own internal policies to flout Federal law that 
requires their cooperation with the Department of Homeland 
Security and the question whether the Justice Department will 
work to enforce section 642 and stop cities from using these 
sanctuary policies when it comes to the issue of protecting 
citizens from criminal aliens.
    Mr. Holder. The responsibility that I have as the chief law 
enforcement officer in this country--and I am very honored to 
have that position--is to enforce all the laws that are on the 
books. And that is obviously what we will do. But I do think, 
as I said, that one has to look at this immigration problem in 
its totality. And I think it is incumbent upon us as a Nation 
to try to deal with all of the issues that make up the 
immigration issues that we----
    Mr. Goodlatte. I agree with you. We do need to address a 
variety of immigration issues. But would you commit to 
enforcing the law as it pertains to something that the Congress 
has already passed and spoken on and signed into law by 
President Clinton to make sure that there is cooperation with 
law enforcement, to make sure that criminal aliens are not 
released back into communities to commit more crimes?
    Mr. Holder. As I said, as the chief law enforcement 
officer, I will be responsible for enforcing the law, do what I 
can to ensure that Federal laws are in fact enforced, use the 
resources that we have to do that.
    Mr. Goodlatte. Thank you. I appreciate that answer, Mr. 
Chairman. Thank you very much.
    Mr. Conyers. Zoe Lofgren, Chairwoman on the Committee of 
Immigration.
    Ms. Lofgren. Thank you, Mr. Chairman. And it is good to see 
you, Mr. Attorney General.
    I would just note that I opposed the 1996 reform--so-called 
Reform Immigration Act. But 642 does not place an affirmative 
obligation on States and localities to enforce the immigration 
laws.
    There is a provision, however, I would like to talk to you 
about, 287(g), which does allow localities at their option to 
enforce immigration laws, and it is within the Department of 
Homeland Security. But it involves your Department because 
there have been a few problems. And I am aware that the 
Department is investigating a sheriff in Arizona for alleged 
civil rights violations.
    We recently had a hearing in the Subcommittee and heard a 
number of issues where Americans had been pulled over and 
harassed because of their ethnicity in an alleged immigration 
effort.
    What resources does the Department need to make sure that 
serious civil rights violation allegations are pursued relative 
to this program?
    Mr. Holder. Well, I think that the civil rights division is 
a division that needs additional resources, and in the 2010 
budget there is a pretty substantial increase in the amount of 
money that will flow to the civil rights division to deal with 
the issues that you have talked about. The division has not 
gotten the attention that it has needed in the immediate past. 
There have been inspector general reports that have talked 
about the politicization of the division. It is a place that I 
spent a lot of time and a lot of energy and focused on it quite 
a bit to make it the civil rights division that, frankly, has 
existed under Republican as well as Democratic Attorneys 
General. And I want to return that division to its proud 
history.
    Ms. Lofgren. That is very good news. I saw that the 
Department had requested $14 million for an additional 28 
immigration judge teams, and I am glad that you have.
    I want to explore that further. We actually have one less 
judge today, immigration judge, than we had in the year 2002. 
And we have just had a very substantial increase, as you know, 
in activity. In fact, immigration judges on average receive 
334,000 items a year. I mean, it was just stunning. Up from 290 
in 2002 as compared to district court judges who get about 483 
matters a year. Not to say that they are equivalent in terms of 
complexity, but I mean it is way off the charts.
    And some of the chief--well, the chief judge for the Second 
Circuit has said really that he thinks the number of judges, 
immigration judges, probably needs to be doubled.
    Are you planning a series of requests to get the personnel 
up to the numbers--the numbers up so they can actually handle 
these cases and give proper attention to each matter?
    Mr. Holder. There has been a budget increase, as you 
indicated. But I think that is something we will have to look 
at and make a determination about whether additional resources 
are needed, but really be pretty cold and calculating in trying 
to determine the number of matters that these judges are 
handling. These are obviously important matters, and we want to 
make sure that they are not working in a way that is--the way 
they are overburdened.
    The numbers you have cited are extremely striking and it 
may be that in the next year's budget we will have to continue 
to give more resources to that area.
    Ms. Lofgren. I would encourage you to do so unless there is 
a change in the volume. It is just impossible to pay attention 
to that many matters.
    Along those lines, former Attorney General Ashcroft purged 
10 members of the Board of Immigration Appeals and changed 
matters in an alleged streamlining effort which resulted in an 
explosion of appeals to the circuit courts. The circuit courts 
are very unhappy about this. As I am sure you are aware, they 
have just been swamped.
    Are you going to revisit the Board of Immigration Appeal's 
so-called streamlining effort so that we can get proper 
attention paid to these matters and relieve the circuit courts?
    Mr. Holder. That is something that I want to look at. It is 
interesting that my chief of staff is the person who used to 
run that part of the Department. And I think in combination 
with him and others who are familiar with the needs of that 
part of the Department, we want to make sure that they are 
adequately funded, that there are sufficient numbers of judges, 
and that they are allowed to do the kind of job that we want 
them to do. That is something I expect we will be looking at.
    Ms. Lofgren. Just before he left, Attorney General Mukasey 
advised in a January 2009 decision that, contrary to a long 
history, there was no constitutional or statutory right to 
effective assistance of counsel in immigration proceedings. It 
is a radical departure from the state of the law.
    I understand you had indicated an interest in revisiting 
that policy when you were before the Senate during your 
confirmation process. However, I am advised that Compean is 
still being cited by your lawyers in proceedings today, which 
is a problem. And we are going to end up with litigation around 
that.
    I am wondering, number one, when we will have your 
decision--I am assuming you will want to go back stare 
decisis--and if in the interim we couldn't avoid future 
litigation by settling this with the Department's lawyers?
    Mr. Holder. As I indicated during my confirmation hearing, 
we are looking at the decision that was made by former Attorney 
General Mukasey, and I expect that within a matter of--in a 
very, very short time, I will be issuing the decision I made 
with regard to what we ought to be doing in that regard. We 
have completed our review and we are just working on a release 
that I will be making very shortly.
    Ms. Lofgren. All right. I have sent you two letters. I 
won't go through them here today. One has to do with the 
situation in Postville in light of the unanimous Supreme Court 
decision relative to the identity theft issue. The other is a 
letter signed by a number of us in the House on the Wilberforce 
Act and the efforts that will be necessary to fully implement 
that act. And rather than go through them, I am just hopeful 
that we can get a positive response in the near future. They 
have just been sent recently. I am not complaining about the 
length of time, but I am eager to hear back from you.
    Mr. Holder. I will try to get a response back to you as 
quickly as I can.
    Ms. Lofgren. Thank you very much. Thank you, Mr. Chairman.
    Mr. Conyers. The gentleman from Ohio--Iowa. Steve King.
    Mr. King. Thank you, Mr. Chairman. And I thank you, 
Attorney General Holder, for testifying before this Committee 
today. And I know that there were a lot of people on this panel 
looking forward to this, but I would have wondered if you were 
actually looking forward to it.
    But I would like to first raise the issue--I have in my 
hands two letters that have been sent to you by Senator 
Sessions of Alabama, one dated April 2nd of this year, and the 
other one May 4th of this year, where he inquires as to your 
position on especially the Uyghurs, the 17 Uyghurs that have 
been brought up.
    He makes a point that in the case, the District of Columbia 
Circuit held in the case of Kiemba v. Obama--and that is a 2009 
case--that Federal courts lacked the constitutional authority 
to order the release of the Uyghur detainees into the United 
States, and that it also held that the power to order an alien 
held overseas, brought into the sovereign territory of a 
nation, and released into the general population has never 
existed.
    And so with regard to the 2003 case, this appears to 
overturn that 2003 case and put this back in, I will say, your 
responsibility on the Uyghurs. So I would ask you if you are 
prepared to respond to these letters today or if you would like 
to comment on these unanswered letters from Senator Sessions?
    Mr. Holder. I know I have signed or approved a response to 
at least one of the letters that Senator Sessions has sent to 
me. I am not sure if it is one of those two. He is right with 
regard to the Kiemba case, the court said that there was not a 
basis for the judiciary to order the executive branch to 
release people into the United States. By the same token, there 
is a court order that requires that either all or 17 of the 
Uyghurs have to be released, they cannot be considered--they 
cannot held. And as I indicated, the Bush administration had 
made that decision that with regard to 17 of the Uyghurs, they 
would not be treated--as they called them--enemy combatants.
    Mr. King. Then within the confines of the definition you 
have given, can you assure this Committee that the Uyghurs will 
not be released into the United States?
    Mr. Holder. At this point, we have not made any 
determinations, any final decisions as to what is going to 
happen with regard to any of the 241 people----
    Mr. King. Do you believe you have the power, then, to waive 
the Federal statute that prohibits them from being released 
into the United States that is the subject of this litigation?
    Mr. Holder. Well, Kiemba I think really just says that the 
courts cannot order the executive branch to release people into 
the United States. I am not sure the court went so far as to 
say that the executive branch did not have sufficient authority 
to bring people into the United States. I am not talking about 
the Uyghurs.
    Mr. King. But I am asking if you believe you have the 
authority, then, to waive and bring them into the United 
States, the Uyghurs as an example?
    Mr. Holder. I think in a letter that I am sure that I think 
I approved that goes to Senator Sessions, it indicates that 
there is authority on the--the parole authority that I guess 
resides in the Secretary for the Department of Homeland 
Security, that there is a basis there for bringing people into 
the----
    Mr. King. The prohibiting statute would have to be waived, 
and we can go into the definitions a little deeper perhaps in a 
less formal fashion. I was interested in your testimony that 
you can look at the files of the 241 detainees and determine 
whether they are terrorists. And I would ask you then how 
quickly you might be able to review those files; and when that 
task is accomplished, will you announce then to the public how 
many of the 241 are terrorists? Is that something you expect 
that could happen within the next 30 to 60 days, since we know 
the clock is ticking on the January 22nd executive order?
    Mr. Holder. Believe me, I know better than anybody that the 
clock is ticking. We use this term ``terrorist'' I think in a 
way that is kind of explosive. It is incendiary. Our focus is 
on whether or not these people are going to present a danger to 
the American people. And that is what guides us, not 
necessarily how they are labeled, though I think there is a 
value in making a determination.
    Mr. King. I thank you, Attorney General. And just a quick 
question as the clock ticks down. There has been a significant 
amount of controversy across this country with regard to ACORN. 
There have been at least investigations in at least 12 States, 
indictments that came down not just against their employees but 
against ACORN itself, in Nevada in particular, I believe also 
in Pennsylvania, perhaps other States--the hundreds of 
thousands of voter registration forms that are fraudulent, 
admittedly fraudulent by ACORN, and the roughly 8-plus billion 
dollars of Federal tax dollars that are available to ACORN 
today in part as they go forward with more of the same, as near 
as we can tell, plus being named as an organization to assist 
in the United States Census.
    Are you committed to those investigations and are you 
committed to reining in this organization that has been getting 
more and more Federal funding, even though the evidence out 
there is that they can't be trusted with the integrity of the 
electoral process, let alone the Census and the redistricting?
    Mr. Holder. Well, I do not know the extent of any 
investigations the Department is doing into that organization. 
Clearly, if there is an investigation ongoing, I will support 
that. With regard to the running of the Census, that is 
something that Commerce will have to do. But I will try to get 
back to you with regard to whether or not--if I can--whether or 
not ACORN is under Federal investigation. I don't know.
    Mr. King. I would thank you on that and I hope the Chairman 
changes his mind on that. And again, I would yield back.
    Mr. Conyers. Thank you.
    The Chair recognizes Bill Delahunt, former Massachusetts 
prosecutor and Oversight Subcommittee Chairman on Foreign 
Affairs.
    Mr. Delahunt. Welcome, Mr. Holder. We have heard some 
reference to the Uyghurs this morning. I think it is important 
to define the Uyghurs. And it is my understanding that it is a 
minority group that has existed in the past in the northeastern 
section of China. Is that your understanding as well?
    Mr. Holder. Yeah. The Uyghurs are from China. And the best 
indication that we have so far as we looked at their files, 
they went to Afghanistan not to take up arms against the United 
States--this is not to excuse that--but to oppose the Chinese 
Government.
    Mr. Delahunt. In fact, the truth is that they have been a 
suppressed and persecuted minority within China. Is that a fair 
statement?
    Mr. Holder. That certainly is, I think, the view of the 
Uyghur population. They feel they have not been treated fairly 
by the Chinese Government.
    Mr. Delahunt. Have you come across reports that Uyghurs 
have been tortured and actually killed and murdered in 
Communist China?
    Mr. Holder. I have certainly seen reports that indicate 
that Uyghurs have not been treated--have not always been 
treated fairly or appropriately by the Chinese Government.
    Mr. Delahunt. In fact, some make the analogy between the 
Tibetans and the Uyghurs in terms of being persecuted for not 
just simply their political views, but because of their 
religious beliefs; is that a fair statement?
    Mr. Holder. I have seen reports of that as well.
    Mr. Delahunt. I would indicate to you that, in fact, it 
would appear to be the belief of the United States Congress, 
since there was a resolution that was passed encouraging a 
change in attitude and behavior by the Communist Chinese 
Government toward the Uyghurs, in the whereas clauses it 
listed, and enumerated major human rights violations directed 
against the Uyghurs. I think it is important to understand who 
the Uyghurs are.
    You indicated that it is not a threat to the United States. 
Now, I don't know if you can say the same thing--maybe it is a 
threat to Communist China, I don't know that, I don't intend to 
waste my--spend my time defending the Chinese Communist regime 
in Beijing that has a human rights record that at best can be 
described as abysmal.
    What I am concerned about is the attitude of at least the 
previous Administration. The Chairman indicated that I chair 
Oversight on the Foreign Affairs Committee, my Ranking Member 
is my good friend and colleague, Mr. Rohrabacher. We have 
requested a visit to Guantanamo to actually interview the 
Uyghurs. And this was with the understanding that we will have 
secured releases to that effect. The previous Administration 
denied that request in our effort to secure the truth. And yet 
we discovered that it was the previous Administration that 
allowed Chinese Communist security agents to go to Guantanamo 
and interview the Uyghurs. Is this a policy that you intend to 
continue?
    Mr. Holder. Well, I am not aware of any requests that any 
Members of Congress have made to go to Guantanamo. And, 
obviously, we would look at that and make that determination. I 
am also not aware of any representative of foreign governments 
who have gone into the detention facility there. I am just not 
aware of that.
    Mr. Delahunt. Well, I would respectfully request that you 
review that. I would like to have a report back to this 
Committee, or at least to myself in my position as Chair of 
Oversight on Foreign Affairs, as to the rationale and the basis 
for the reported visit by Chinese Communist agents that were 
allowed to go to Guantanamo to interview Uyghurs that were 
detained down there.
    It is also my understanding that those that were detained 
there, again given the hostility that exists between the Uyghur 
community and the Chinese Communist Government, were told--were 
threatened and intimidated. I think it is important that we get 
that information out into the larger context of the issue 
surrounding the Uyghurs.
    I just read recently where a former Speaker of the House of 
Representatives, Mr. Gingrich, suggested that the Uyghurs be 
returned to China. Can you tell me if that would be an 
appropriate initiative under our treaty obligations on the 
convention against torture? Because I would submit to you that 
undoubtedly they would be tortured and persecuted and most 
likely murdered if they were returned to Communist China.
    Mr. Holder. One of the things we have to do in trying to 
make these transfer-and-release determinations is where these 
people can be released to. Your initial reaction is always to 
return them to their home country. And yet as you indicate, one 
of the things we have to take into consideration is how would 
they be treated were they to be returned to their home country.
    I note that five Uyghurs have already been released in 
2006, and those people were placed in Albania, which perhaps 
reflects an indication on the part of the prior Administration 
about the concerns that you raised. But it will not be the 
policy of this----
    Mr. Delahunt. I would suggest, Mr. Attorney General, you 
contact the Albanian authorities and ask them what the response 
was from the Communist Chinese Government about the 
resettlement of those five Uyghurs, whom by the way I 
understand are doing very well in Albania; one of whom just 
recently was granted political asylum in Sweden.
    Mr. Holder. Right. One thing I would say with regard to the 
Guantanamo question, that is a facility that is run by the 
Department of Defense. And so in terms of access to Guantanamo, 
that is something that the Secretary of Defense or his 
subordinates would control.
    Mr. Delahunt. I would respectfully request that you contact 
the Department of Defense on behalf of myself and Mr. 
Rohrabacher. We would like to visit and interview those people 
ourselves. If the Chinese Communist agents can interview 
detainees at Guantanamo, then Members of the American Congress 
ought to. I can see my friend from Texas, Mr. Poe, agreeing by 
shaking his head.
    And with that I yield back.
    Mr. Conyers. The distinguished gentleman from Virginia, 
Randy Forbes.
    Mr. Forbes. Thank you, Mr. Chairman.
    Mr. Attorney General, thank you for being here today. And I 
would like to revisit the Guantanamo issue again. I have heard 
some of your responses today. As I understand it, you mentioned 
that when you came over to the Department you realized there 
was a larger national security component, I believe you said, 
than when you left. One of the real issues is things changed 
quite a bit after 9/11. And when you are looking at some of the 
detainees, your Department deals with a lot of knowledge and 
information. Some of that is evidence that is factually 
admissible in a court of law. There is a lot of other evidence 
that you have that are just bits and pieces and tidbits that 
help formulate your assessment of a particular security risk,
    The question for you is this: If you have a Guantanamo 
detainee and you determine from the information that is 
presented to you that an individual or group of individual 
detainees would, in your opinion, pose a threat to the United 
States based on the totality of information you have, but you 
do not have adequate admissible evidence to accuse them of a 
crime, and no other country will take them, will you release 
them in the United States?
    Mr. Holder. We will not release anybody into the United 
States who we think would pose a danger to the American people. 
We will go through a process to try to make the determination 
as to who can be released, who can be transferred, who can be 
tried in a variety of places, either in Article 3 court, the 
military courts, or perhaps the military commissions, with the 
enhanced procedures that I have pretty consistently talked 
about.
    And then there is the potential for a third category of 
people who, for whatever reason, cannot be tried, but who we 
make the determination cannot be released because they pose a 
danger to this Nation. With all kinds of due process 
protections, it is entirely possible that we could end up with 
people in that third category. But we don't know that yet. We 
are looking at----
    Mr. Forbes. My question is simply this. You feel it would 
be appropriate, and it would be your position that if you could 
make a determination from the totality of evidence that you 
had, even though that is not evidence that would be admissible 
in a court of law to prove a crime, that you felt one of those 
detainees or a group of those detainees could pose a risk to 
the United States, you would continue to detain them?
    Mr. Holder. We are not going to do anything, anything, that 
will endanger the American people. We will use all the tools 
that we have.
    Mr. Forbes. Mr. Attorney General, I just respect--please 
understand that I respectfully am asking this question the best 
I can. But can you just give me a yes or no? If you determine, 
you determine and your Department determines, from the totality 
of evidence that you have, that that individual would pose a 
risk to the United States, to residents in the United States, 
but you do not have adequate evidence to be admissible in a 
court of law to prove a crime, do you believe it would be 
appropriate to continue to detainee that individual?
    Mr. Holder. I think that that possibility exists. That is 
what I was trying to say; that there is that third category of 
people who, if there were a sufficient basis for us to conclude 
that they posed a danger to the American people, to the United 
States, we would not release those people.
    Mr. Forbes. So again, would I be fair to say that you 
believe it would be appropriate if you made that conclusion 
from the totality of evidence that you had, that that 
individual could pose a risk to the United States, that you 
would continue to detain that individual even though you did 
not have adequate admissible evidence to convict them of a 
crime?
    Mr. Holder. If we had sufficient factual intelligence--I 
don't know whatever quantum of proof, however you want to 
describe it, to believe that a person posed a danger to the 
United States, we will do all that we can to ensure that that 
person remains detained and does not become a danger to the 
American people.
    Mr. Forbes. And all you can do, if you have the power to 
keep that person in detention and, and you conclude--you 
conclude--beyond a reasonable doubt in your mind, from the 
totality of evidence that you have, that that individual posed 
a risk to the United States, can you definitively tell us that 
it would be your position that they should be detained and no 
released?
    Mr. Holder. It is my definitive position that the American 
people will be protected. Somebody who poses a danger to the 
United States will not be released. I am answering your 
question directly----
    Mr. Forbes. But I----
    Mr. Holder. And I am giving you a direct answer. I am 
telling you that the people who pose a danger to the United 
States will not be released by this----
    Mr. Forbes. Okay, then they will not be released.
    The second question I have as a follow-up, have you made, 
or your Department made, an assessment of the potential risk to 
localities if we relocate individuals here and put them in 
detention in the United States?
    Mr. Holder. We have not gone to that level of analysis 
because we have not made any determinations about where anybody 
is going to be placed. The focus of our emphasis at this point, 
3 months into this Administration, is to look at those 241 
people and figure out who they are, and then what categories 
they can go into.
    Mr. Forbes. Mr. Attorney General, with all due respect, you 
are going to close it in 8 months, as I understand. And at this 
particular point in time, a lot of countries are saying we 
don't want them. We don't have exactly a great venue to send 
them other places, so it looks like they are coming to the 
United States, at least some of them.
    At this particular point in time, we haven't even made an 
assessment of potential risk that might be posed to a locality 
if we do relocate them here; is that what you are saying?
    Mr. Holder. What I am saying is before any type of 
determination is made, whether a person is sent to France, 
Germany, all those kinds of things, information will be shared 
so that determinations can be made, assessments made. We would 
not foist upon anybody, any country, any locality----
    Mr. Forbes. And the only one I am interested in is the 
United States. But at this particular point in time, we have 
not made an assessment of the risk those localities would face 
in the United States. That is what you are saying at this time.
    Mr. Holder. At this point we have not made that kind of 
determination because we have not had an ability yet to decide 
exactly who will be going where.
    Mr. Forbes. Thank you, Mr. Chairman. I yield back.
    Mr. Conyers. The distinguished gentlelady from California, 
Los Angeles, Maxine Waters.
    Ms. Waters. Thank you so very much, Mr. Chairman. I really 
do appreciate this hearing today. And I would like to welcome 
our new Attorney General, Mr. Holder.
    I would first like to thank him for the strong leadership 
that he has already demonstrated in taking this most important 
position in our government. I am particularly appreciative for 
the direction he has signaled already on the crack cocaine 
issue and getting rid of those disparities. Many of us have 
been working for many years to try and deal with this, the 
Families Against Mandatory Minimums that works with me, and we 
hold a workshop on it every year, and one young lady who is in 
the audience, Ms. Taepa, who has spent countless hours working 
on this issue. And we are so pleased that you are there and 
moving in the right direction.
    I have a few other things I would just like to mention. I 
am sure that it has not come up today, but what you did with 
Senator Stevens' case really does define your commitment to 
justice. It doesn't matter--Democrat, Republican, whomever--
have been denied justice. And with the withholding of 
information by the prosecution, you threw that case out. And I 
want you to know that that really is what justice is all about, 
and I appreciate it very, very much.
    And I hope the people of this country understand that it 
took courage to do that but you did it. But you are here today 
and let me just ask you about a few other things.
    I am very concerned about police misconduct. The last time 
the FBI came, there were 857 cases, 34 of them in Los Angeles. 
We really don't find out what the outcome is of these police 
misconduct cases. And I am just wondering if there is some way 
we could get updated. I don't know if anybody else is 
interested, but my staff certainly would like to have the 
opportunity to get with whomever you identify and help us to 
understand what happens to these cases.
    Mr. Holder. That is a difficult thing. Once an 
investigation is opened, it becomes difficult to share 
information outside the Department. But to the extent that we 
can, you know, we will try to do so. I understand your 
frustration, though, where an investigation is open, perhaps 
charges are brought or reforms are required, but then there are 
other instances where the case simply seems to go away, it gets 
closed.
    To the extent that we can come up with a mechanism to make 
you and the members of the public and certainly the members--
the citizens of the locality where the police department is 
being investigated, to the extent that we can share that kind 
of information, I will try to find ways in which we can do 
that, while protecting privacy interest that might exist with 
regard to specific individuals.
    Ms. Waters. I appreciate that. I am particularly interested 
in the city of Inglewood where we have made countless attempts 
to have an investigation, and thankfully since you have been 
there there is an investigation going on. And we would like to 
follow it as much as we can, with whatever way that you can 
share information or whatever. We will be trying to do that.
    Let me just go into mortgage fraud. As you know, some of us 
that have been working on the Financial Services Committee 
dealing with predatory lending, mortgage fraud and the subprime 
meltdown have discovered there was a lot of fraud that was 
going on by the loan initiators and sometimes by the 
recipients, the homeowners. But we have seen cases where 
incomes were inflated and that information was placed on the 
applications without the homeowner's knowledge, and on, and on, 
and on, and it just falls through the cracks. We see it when we 
are working loan modifications with the services.
    I understand you are not going to do a task force. But can 
you do something to work with the city attorneys who are 
trying--who have very little resources--to help us deal with 
this mortgage fraud?
    Mr. Holder. Yeah. Actually, we are going to be rolling 
something out pretty soon with regard to how to approach this 
whole question of financial fraud, and a component of that will 
certainly be mortgage fraud and how we are going to be dealing 
with that. And we will be working with our State and local 
partners in that regard.
    Earlier I had said I wasn't sure about the number of 
mortgage fraud cases that the FBI had under investigation. I 
wasn't sure if it was 1,200 or 2,100. Just for the record, it 
is 2,100 cases that the FBI has under investigation now. In 
order for us to be effective in those mortgage fraud cases, we 
need something that is going to be pretty extensive and that 
also involves people at the State and local levels. And our 
hope is--our intention is to work with them.
    Ms. Waters. Thank you.
    And finally on the crack cocaine issue, I will get back to 
it. I would not like you to answer this, but would you consider 
taking a look at the possibility of pardons for some people who 
have been sentenced under these crack cocaine laws, 
particularly those who have never been involved in crime 
before, this is a first time offense, have good backgrounds, 
come from, you know, environments with supportive parents and 
all of that--don't answer now--will you take a look at the 
possibility of considering this for recommendation to the 
President of the United States?
    Finally U.S. attorneys. Many jurisdictions are waiting 
desperately to see what is going to be done. As we understand 
it, the protocol has been that U.S. attorneys would hand in 
their resignations and would give the new Administration an 
opportunity to make new appointments. We don't see that 
happening quite fast enough and there are many of these 
jurisdictions where there are real complaints against U.S. 
attorneys, such as in Louisiana, Mississippi, Alabama. What are 
you doing about that and how fast are you going to move on 
that? Or have you changed how it is normally done?
    Mr. Holder. No, we are working as quickly as we can to put 
new U.S. attorneys in place. I expect that we will have an 
announcement in the next couple of weeks with regard to our 
next batch of U.S. attorneys. I have met with some of the 
candidates whose names I expect we will be announcing pretty 
soon. They came to Washington as part of the process. And so we 
will have our people in place, I think, relatively soon.
    One of things we didn't want to do was disrupt the 
continuity of the offices and pull people out of positions 
where we thought there might be a danger that that might have 
on the continuity--the effectiveness of the offices. But it is 
our intention--elections matter--it is our intention to have 
the U.S. attorneys that are selected by President Obama in 
place as quickly as we can. As I said, our first batch will be 
announced very, very soon.
    Ms. Waters. I thank you very much. I would just like to say 
there is a danger with some of them being left there, so 
whatever you can do to move them, we appreciate it. Thank you.
    Mr. Conyers. The Committee will once again stand in a brief 
recess.
    [Recess,].
    Mr. Conyers. The Committee will come to order. The Chair 
recognizes Dan Lungren, its only ex-attorney general, from 
California.
    Mr. Lungren. Thank you very much. I appreciate that.
    Mr. Attorney General, it is good to see you. I haven't seen 
you since Selma, Alabama.
    Mr. Holder. It has been a while. Good to see you.
    Mr. Lungren. I also appreciate the statement that you had 
on page 7 when you talked about the Fraud Enforcement Recovery 
Act which had the language on money laundering that I authored; 
and also the False Claims Act which I think should be a 
bipartisan approach, starting with the Lincoln law and then 
becoming the Reagan alteration of that when that was necessary, 
and now.
    But let me get into a couple of other areas of serious 
concern of mine. One following on the questions of Mr. Forbes--
and I know what your statement is now, and I am not going to 
ask you to reiterate that--that you believe that you should 
take all action to ensure that those who pose a threat to the 
United States who are now in Guantanamo would not be released.
    However, if we remove them from Guantanamo and they come to 
the United States, other countries are not accepting them--for 
whatever reason they come to the United States--as you know, 
their being in the United States gives them an attachment to 
the Constitution that they might not otherwise have, and 
arguably they may have the full panoply of constitutional 
rights.
    That means there is a conceivable scenario in which you 
would take the position, the Administration would take the 
position that people that you have incarcerated in some State 
in the United States, have been coming from Guantanamo; that 
they are a clear and present danger to the United States. But 
that would be subject to a Federal court review, a Federal 
court review leading to a Federal judge issuing an order that 
they be released.
    Under those circumstances isn't it correct under the law 
that you would have no recourse but to release them?
    Mr. Holder. It would seem to me that there are a couple of 
things there that I think are kind of missing from the 
question. The first is that we would work with Congress I think 
to come up with a scheme, the means by which we would do 
anything with regard to the basis for the detention of these 
people.
    Mr. Lungren. You don't disagree in my argument, though, 
that having them on U.S. soil at least gives them a stronger 
opportunity to argue that they have the full panoply of 
constitutional rights vis-a-vis not being held in the United 
States. At least that has been the traditional of the Federal 
courts, correct?
    Mr. Holder. Well, I think they can certainly argue that. 
But I think if you also look at the way in which the courts 
have progressively dealt with detainees at Guantanamo, the 
progression there was pretty obvious. Although they were not on 
American soil, they were getting more and more rights given to 
them, starting with habeas and cases like that.
    Mr. Lungren. We eliminate that by bringing them to the 
United States, correct, as opposed to staying Guantanamo?
    Mr. Holder. I am not sure about that. I am not sure.
    Mr. Lungren. Well, they certainly don't have a weakened 
position, do they?
    Mr. Holder. Put it like this. There is certainly an 
argument a lawyer is going to be able to put in a brief, I 
suppose. Yeah.
    Mr. Lungren. Okay. So you will make every effort you can to 
make sure they are not released, but still you are subject to 
the authority and direction of the United States courts all the 
way up to the Supreme Court, correct?
    Mr. Holder. Yes, as is true now. I mean, we have a district 
court--or I guess we have a court decision now that is 
indicated--for instance, we were talking earlier about the fact 
that the Uyghurs have to be released.
    Mr. Lungren. Right. As so you make judgments as to whether 
appeals should be brought when you have things like that, 
correct?
    Mr. Holder. Yeah. I mean, we certainly appealed the 
decision made by district court here, I think, in the District 
of Columbia, that they had to be paroled or had to be placed in 
the United States and that resulted in the Kayumba opinion.
    Mr. Lungren. Well, let me ask this question then. The 
President of the United States just made a determination I 
think it was today or yesterday, that he does not believe we 
ought to release pictures showing presumably inappropriate 
activity by American personnel with respect to prisoners that 
we have held in Guantanamo and other places. And yet it is my 
understanding that is in response to an appellate court 
decision that you, or at least your Department, had made a 
determination you would not appeal; is that correct?
    Mr. Holder. I think that what we had made the decision to 
do was before the President had had the opportunity to sit down 
and have, I think, the in-depth conversations that he obviously 
had with the field commanders. And on the basis of his 
determination that it would place our troops at risk, we have 
now taken a different position in court.
    Mr. Lungren. So the original position was not to take an 
appeal; is that correct?
    Mr. Holder. I think that is technically right. I am not 
sure, but now----
    Mr. Lungren. Would it be appropriate for us to ask if we 
could see the internal Justice Department memorandum with 
respect to that decision?
    Mr. Holder. To not?
    Mr. Lungren. Would it be appropriate for this Committee to 
ask that Congress have an opportunity to view the internal 
Justice Department memorandum which led to the decision not to 
appeal?
    Mr. Holder. I will say as a matter of course that I want to 
work with this Committee, but I have great reluctance in saying 
I will share internal Justice Department memoranda that deal 
with decision making in particular cases.
    Mr. Lungren. Okay. You have made the statement publicly 
that you believe that waterboarding is torture; is that 
correct?
    Mr. Holder. That is correct.
    Mr. Lungren. If that is the case, is it currently the 
position of the United States when we submit our Navy SEALs and 
other special operations military personnel to waterboarding as 
a part of their training, that we are currently subjecting them 
to torture?
    Mr. Holder. No, that is not--not in the legal sense. I 
think that is a fundamentally--fundamentally different thing. 
We are doing something for training purposes to try to equip 
them with the tools to perhaps resist torture techniques that 
might be used on them. There is not the intent to do that which 
is defined as torture, which is to inflict serious bodily or 
mental harm. It is training, it is different.
    Mr. Lungren. My question is: If we are causing them to 
undergo waterboarding, even under the guise of training them, 
aren't we subjecting them to torture if you have defined 
waterboarding as torture?
    Mr. Holder. No, it is not torture in the legal sense, 
because we are not doing it with the intent of harming these 
people physically or mentally. All we are trying do is train--
--
    Mr. Lungren. So it is the question of intent?
    Mr. Holder. Intent is a huge part.
    Mr. Lungren. If the intent was to solicit information but 
not do permanent harm, how is that torture?
    Mr. Holder. Well, one has to look at--it comes down to a 
question of fact as one is determining what is the intention of 
the person who is administering the waterboarding. When the 
Communist Chinese did it and when the Japanese did it and when 
they did it in the Spanish inquisition, we knew then that that 
was not a training exercise they were engaging in. They were 
doing it in a way that is violative of all the statutes that 
recognize what torture is. When we are doing it to our own 
troops to equip them to deal with an illegal act, that is not 
torture.
    Mr. Lungren. So the context is important?
    Mr. Holder. Well, context is important; but it is not 
context, it is what is the intention of the person who is 
administering the technique.
    Mr. Lungren. I think my time is up. I appreciate it.
    Mr. Cohen. [Presiding.] Thank you sir. I hope you don't 
consider the water that we put next to you some type of 
intimidation.
    Mr. Holder. As long as it is not poured down my nose, I 
think I am okay.
    Mr. Cohen. I will recognize myself for 5 minutes. It is my 
turn in the questioning.
    I am very concerned about racial and ethnic disparities 
that exist in the criminal justice system. And I was pleased to 
see you raised this in your testimony. As you noted, these 
disparities are eroding public confidence in the system, not to 
mention causing injustice, which is the most serious grievance.
    I was pleased the Department is convening a working group 
on sentencing policy, which I think will be very valuable. But 
I think it is much larger than simply sentencing. Disparities 
exist in law enforcement policies and prosecutorial decisions 
and other aspects of the criminal justice system as well.
    Shouldn't we be engaging in a full-scale review of the 
entire Justice system and not simply the sentencing portion?
    Mr. Holder. Well, I want to do that which I think is 
possible. My time as Attorney General is limited. And there are 
priorities that I think we have to set. That does not mean, 
however, that I don't agree with you that we as a society have 
to focus, I think, on the larger questions that you raise to 
ensure that our criminal justice system, viewed in its 
entirety, is perceived as fair and actually is fair.
    I tried to chop off those parts that I think we can get 
done during the time that I am Attorney General.
    Mr. Cohen. Possibly this Committee could look at some of 
those other factors and we could work hand in glove. I hope 
that we can, and that won't be looked as ``render unto 
Caesar,'' et cetera, and we will work together.
    Mr. Holder. I will be glad to work with you on that.
    Mr. Cohen. Thank you, Mr. Attorney General.
    The issue of deferred prosecution is one that comes within 
the bailiwick of my Subcommittee, Commercial and Administrative 
Law, and also is one that comes to me as an attorney and as one 
who has a company within my district that has been the subject 
of one of the major deferred prosecution cases in New Jersey, 
in the medical field.
    Many issues have been raised. The New York Times had an 
article by Mr. Ashcroft, I think on the 5th of this month, and 
there were three letters to the editor on the 11th of May 
really condemning this practice. And it raises many issues.
    And I guess the big issue I would like to ask you is: Do 
you plan to continue this policy of having deferred 
prosecutions and having what I understand the benefits are to 
corporations, but also it is a double--it seems like a double 
type of justice where corporations get to continue on and not 
have to plead guilty, while individuals get sent to the gulag.
    Mr. Holder. Well, I think we want to keep open to ourselves 
the full range of tools that we have in dealing with corporate 
wrongdoing. Very frequently if you prosecute a corporation, you 
end up punishing innocent people who did not engage in that 
wrongdoing; shareholders, other employees. And so I think you 
want to have a full range of possibilities.
    There are guidelines that we have in the United States 
Attorneys Manuals as to when a deferred prosecution or a 
decision not to prosecute is appropriate. And as long as we 
follow those guidelines, I think it is good to maintain that 
tool.
    Mr. Cohen. Are those the guidelines that were issued in 
August?
    Mr. Holder. I am not sure exactly when they issued, but 
they reside in the U.S. Attorneys Manual.
    Mr. Cohen. I think Mr. Mukasey had something in August that 
was certainly an improvement on deferred prosecutions. How is 
it determined on who gets to be the prophet of the monitor? The 
monitors have been very lucrative. And Mr. Christie, I think, a 
former attorney general in New Jersey, who was, I think, was 
one time hired by Mr. Ashcroft, employed Mr. Ashcroft. And Mr. 
Ashcroft's bill in that case came to, I believe, $54 million--
$52 million for Zimmer Holdings in the case where he was 
appointed.
    Should there not be some type of neutral and detached 
individual to oversee and to act as an ombuds-type person to 
make sure that the corporation isn't subject to any type of 
charges that may be levied by these monitors?
    Mr. Holder. Well, typically, the person who makes the 
decision is the person who was in charge of the case, perhaps 
the U.S. attorney, maybe the head of the criminal division at 
the Justice Department, but ultimately it seems to me the 
Attorney General is responsible for who is picked. And so I 
think that to the extent that we have concerns about who is 
being picked as a monitor, what charges the monitor is 
incurring, it is incumbent upon me to investigate, to look into 
those things and to come up with systems so that we ensure that 
we are picking the right people and they are acting in an 
appropriate way. I mean, this is something that you raised with 
me earlier. And I think the concern that you raised is a 
legitimate one and one that I will look into.
    Mr. Cohen. I have a bill, I am an original cosponsor of 
H.R. 1947, the Accountability in Deferred Prosecution Act of 
2009. It requires among other things that the Department use 
guidelines providing for judicial oversight of the agreements. 
And I think that is a really important thing to have the 
judiciary involved, and it requires public disclosure of 
deferred prosecution agreements and any agreement or 
understanding between independent monitoring and the 
organization monitors.
    So the Department would support that, I presume, because it 
promotes transparency, uniformity, and accountability in 
deferred and non-prosecutions?
    Mr. Holder. Well, I want to look at the bill and will work 
with you on it. I wouldn't want to preclude or in any way 
circumscribe the ability of the Department to be as creative as 
we can in formulating or using these tools.
    Mr. Cohen. The New York Times reported in May that 30 of 
the 41 monitors appointed in deferred prosecutions since 1994--
which goes back to the time I guess when you were at the 
Justice Department with Mr. Clinton--were government officials, 
and 23 were prosecutors.
    Why is it the former prosecutors and government officials 
are more likely to be named monitors and receive lucrative 
monitoring contracts? Should that be the case?
    Mr. Holder. I don't think--that is an interesting 
statistic, one that I was not aware of. I don't think we should 
be favoring one class of person, one class of lawyer over 
another. On the other hand, it may be that people who have--you 
want people who have the relevant experience, knowledge of the 
industry. So I think you want to look for people who are 
qualified, people who are going to understand the serious 
nature of their jobs. But I do not think that we should kind of 
reflectively look to one group of lawyers or a group of lawyers 
who have only one kind of professional experience.
    Mr. Cohen. And let me ask you one last question. The hate 
crimes law which has passed through this Committee, there have 
been questions posed as to whether or not it could in any way 
infringe upon a minister's ability to preach against sexual 
conduct, particularly homosexuality or other sexual conduct 
they may find abhorrent.
    Is there anything in the bill that you have seen, or any 
time in history of hate crimes laws that have been on the books 
for years, and decades and decades, even involving sexual 
orientation, that have ever seen a preacher taken for his words 
and prosecuted; or for that matter, during the civil rights 
days, when preachers used to preach against civil rights or 
against integration or for integration or against Loving v. 
Virginia and all that?
    Mr. Holder. I am not aware of anything like that. And 
obviously there are first amendment issues that you run into 
when you come to making those kinds of determinations. You also 
have to have prosecutors who are going to use the tools that 
are given to them in an appropriate way. Prosecutors have a 
great amount of discretion. But just looking at the statutes 
that I think the House has passed and the Senate has passed, I 
don't see that situation that you have described as being 
problematic.
    Mr. Cohen. First amendment, that is good. Thank you, sir, 
Mr. Attorney General.
    The gentleman from Texas State, a distinguished former 
judge, is recognized. Mr. Gohmert.
    Mr. Gohmert. Thank you. And I appreciate that, and thank 
you for subjecting yourself to this torture. The intent is not 
to torture you there, so apparently it is not.
    I will follow up on the hate crime issue. You are aware of 
18 U.S.C. 2(a) that basically says if you aid, encourage, 
induce someone to commit a crime--``induce'' is one of the 
verbs in that statute--then you are as guilty of the crime as 
the one who actually committed it. You are familiar with the 
law of principle surely?
    Mr. Holder. Yes.
    Mr. Gohmert. And so you may not be aware, but after the 
Matthew Shepherd killing, in which I would have been open to 
the death penalty as appropriate in that case, but they got 
life sentences, so there is nothing the hate crime bill 
proposed would do to affect that case, or the James Byrd case 
where the two main guys got the death penalty. But after the 
Matthew Shepherd case, there were mainstream media people like 
James Dobson who had said homosexuality was wrong, had 
actually--and they used the word ``induced'' this crime.
    So it is possible, and even under the definition or the 
provision in the hate crimes bill that says you can't use 
constitutionally protected speech in a prosecution under this 
act, there is a comma, and it says unless it applies to the 
underlying offense.
    If the underlying offense is inducing someone to commit the 
crime, then certainly a preacher's sermons would be used in 
evidence if it was deemed by the prosecutor that that was 
evidence that he induced someone to commit a crime, correct?
    Mr. Holder. It seems to me that that inducement is a little 
attenuated. The notion that you would go after - the prosecutor 
would go after a preacher who was saying things that I would 
not agree with, hateful things about somebody's sexual 
orientation, I don't see how that in and of itself is going to 
be enough to bring that----
    Mr. Gohmert. Even if the shooter said, I was induced by the 
preacher telling me these things in his sermon, and even if the 
sermon were based on the Bible, the Tanaka, or the Koran.
    Mr. Holder. Again, that seems a little attenuated to me.
    Mr. Gohmert. But it could happen, couldn't it?
    Mr. Holder. It is hard for me to imagine a fact situation 
where that could happen.
    Mr. Gohmert. So you are saying as Attorney General there is 
not a case where you could see use of 18 U.S.C. 2(a) against 
anyone who is alleged to have induced someone else to commit a 
hate crime?
    Mr. Holder. I am not saying that at all. If somebody is on 
the scene, for instance, and says get that, use a negative 
word, and kill him, shoot him, do that, that is a fundamentally 
different thing than a preacher expressing a religious view on 
a Sunday.
    Mr. Gohmert. So someone would have to be on the scene 
before you would use the law of principles?
    Mr. Holder. No, I am not saying you would have to be on the 
scene.
    Mr. Gohmert. You said on the scene.
    Mr. Holder. I gave that as an example. Just an example. 
There are a variety of ways in which speech can be used to 
induce crimes that might be criminally cognizable, but the 
example that was used----
    Mr. Gohmert. Well, the example I used is the one I am 
asking about. And if you wanted to determine whether a preacher 
did induce someone, you would have to subpoena sermons and see 
if there was language that you felt was inflammatory enough to 
induce someone to commit the crime, correct?
    Mr. Holder. It might be as part of the case that you were 
bringing against the person who actually committed the act, and 
you wanted to show the intent.
    Mr. Gohmert. Now you are back to--but I am not talking 
about them, I am talking about one who may be considered an 
investigative--or inducing another to commit a hate crime.
    Mr. Holder. As I said, I just--I find it hard to believe 
that a good prosecutor would go after a preacher on a Sunday, 
spewing----
    Mr. Gohmert. So you are not aware of preachers being 
arrested in Norway for supposedly using language from the Bible 
about homosexuality? You are not familiar with that?
    Well, let me move on. In your testimony you said that you 
are establishing direct ties and personal relationships so that 
our counterpart law enforcement agencies may use them, talking 
about foreign legal policies and procedures. Are foreign law 
enforcement going to be allowed access to our FBI files? The 
procedure you are talking about here?
    Mr. Holder. We share intelligence with our foreign 
counterparts on a regular basis.
    Mr. Gohmert. But my question is about the FBI files. I just 
don't know the extent to which you are willing to share.
    Mr. Holder. There is information that comes from the FBI 
that we share with our allies and with our foreign law 
counterparts on a regular basis; not only intelligence but 
other law enforcement information.
    Mr. Gohmert. Well, I was just trying to determine what the 
pronoun ``them'' included, when you may use ``them,'' what 
records that includes. You are saying they are not going to 
come in and peruse the FBI files; you will provide them just 
such information as necessary, correct?
    Mr. Holder. Yeah. Typically we don't let law enforcement 
people from other countries, or even from other States or from 
State and locals, come in and just look at files at the FBI. We 
make determinations as to what we can share with them.
    Mr. Gohmert. And I ask for unanimous consent for the extra 
2\1/2\ minutes, like the Chairman had, for one more question?
    Mr. Cohen. With unanimous consent, I will give you an extra 
30 seconds like the Chairman had. It is the former prosecutor 
from California who had the extra 2\1/2\ minutes.
    Mr. Gohmert. Whether waterboarding is torture, you say, is 
an issue of intent. If our officers, when waterboarding, had no 
intent to do permanent harm, and in fact knew absolutely they 
would do no permanent harm to the person being waterboarded, 
and their only intent was to get information to save people in 
this country, then they would not have tortured under your 
definition; isn't that correct?
    Mr. Holder. No, not at all. I mean, it depends--intent is a 
fact question; it is a fact-specific question.
    Mr. Gohmert. So what kind of intent were you talking about?
    Mr. Holder. Well, what is the intention of the person? In 
doing the act, was it logical that a result of doing the act 
would have been to physically or mentally harm the person?
    Mr. Gohmert. I set that out in my question; the intent was 
not to physically harm them, because they knew there would be 
no permanent harm; there would be discomfort, but no harm, they 
knew that for sure. So is the intent--are you saying it is in 
the mind of the one being waterboarded, whether they felt they 
were being tortured, or is the intent in the mind of the actor 
who knows beyond any question that he is doing no permanent 
harm, that he is only making them think he is doing harm?
    Mr. Holder. The intent is in the person who would be 
charged with the offense, the actor, as determined by a trier 
of fact looking at all of the circumstances. That is ultimately 
how one decides whether or not the person has the requisite 
intent. I mean, I am speaking to a judge so I say that with due 
respect.
    Mr. Gohmert. But--I am speaking to the Attorney General 
with complete respect--but you know that prosecutors bring 
cases to grand jury, so it is what is the intent of the 
prosecutor as far as going forward. And if it is your intent 
that someone has to believe that they are doing harm to someone 
in order to be torture, then if your intent--and in fact you 
knew without any question there was no harm being done, then 
there is no torture, correct?
    Mr. Holder. No, I wouldn't say that. You know----
    Mr. Gohmert. Then what was the intent?
    Mr. Holder. You can delude yourself into thinking that what 
I am doing is not causing any physical harm or is not causing 
any mental harm. And somebody, a neutral trier of fact----
    Mr. Gohmert. I didn't say mental harm, because you want 
them to think that there is harm.
    Mr. Holder. Physical harm. For that matter. You can think 
that that, in fact, is what you were trying to do or trying not 
to accomplish. And, in fact, a trier of fact could look at that 
and make the determination that in spite of what you said, that 
what you have indicated is not consistent with the facts, not 
consistent with your actions, and therefore you are liable 
under the statute for the harm that you caused.
    Mr. Gohmert. Thank you, Mr. Chairman. I feel sorry for our 
guys out in the field trying to discern their actions based on 
what you just said. Thank you, though.
    Mr. Cohen. You were accurate, I went 2\1/2\ minutes and you 
went 3\1/2\, so we went beyond fairness.
    Mr. Holder. One thing, just to respond, I mean, the concern 
you raise is a good one in the sense that we want to make sure 
we are clear with those men and women who serve us in the 
field, that we are clear to them about what the standards are 
and what we expect of them. And I think that is one of the 
reasons why President Obama, early on, ruled off the table 
certain interrogation techniques. And we have tried to be very 
clear about the way in which we would view their conduct so 
that they would have an ability to know what is on the right 
side and what is on the wrong side. So we tried to be clear.
    Mr. Cohen. The gentleman from the broad shoulder city is 
recognized, Mr. Quigley.
    Mr. Quigley. Thank you. The President's hometown.
    Mr. Holder. That would be correct.
    Mr. Quigley. An issue of great interest to my hometown, the 
President's hometown, gun violence, particularly as it relates 
in recent days, recent months, automatic weapons. So this 
harkens back to I believe was your February statement relating 
to the interest and reinstituting the ban on assault weapons.
    Can you tell us if you know where the sequencing is as you 
made reference to at this point?
    Mr. Holder. Well, I think that what we want to do is look 
at all the ways we can reduce gun violence in this country. One 
of things I think that we have done in our budget is to give 
our State and local counterparts really sufficient amounts of 
money so that they can enforce their laws. We want to share 
information, we want to enforce the laws that we have on the 
books. I think there are a whole variety of ways we can get at 
the problem of gun violence. And we are determined to do that 
in conjunction with our partners and in conjunction with 
Members of Congress.
    Mr. Quigley. There is still an interest out there to 
address assault weapons in particular.
    Mr. Holder. Well, I mean we have to look at those tools 
that are being used by criminals and try to come up with ways 
with which we keep guns out of the hands of criminals, 
certainly guns that are flowing into Mexico; assault weapons, 
we have to figure out ways in which we stop that. I mean, there 
is a particular problem in Chicago just from what I see on the 
television about young people who are the victim of gun 
violence. And I think we have to look at what is driving that 
issue, that problem in a particular city, and then come up with 
ways in which we deal with that.
    Mr. Quigley. You mention Mexico and, again, the Secretary 
of State talked about the violence as it relates to Mexico and 
the United States in terms of the insatiable use of--demand for 
drugs in this country, and the fact that most of the crimes 
that are taking place in that confrontation are purchased here 
in the United States; obviously, a second purchaser, or an 
automatic weapon that has been passed on. So I am just not sure 
if the general notion of keeping it out of people's hands is 
going to do it. If you can buy machine guns, they are going to 
get down there.
    Mr. Holder. You mean in Mexico?
    Mr. Quigley. If you can buy them here, they are going to 
be--that is where they are coming from. So if you can buy 
automatic weapons here in the United States, they are going to 
be in Mexico and they are going to be used against our citizens 
as well.
    Mr. Holder. Yeah. At least some of the research indicates 
that store purchasers purchase these weapons and then transfer 
them in some form or fashion. The Department of Homeland 
Security is working with our Mexican counterparts, as well as 
the Justice Department, to come up with ways in which we 
monitor the traffic from the United States to Mexico.
    We think a large number of these weapons are carried in 
cars, and there are tools that DHS has that are going to be 
employed at the border crossings to try to make determinations 
as to what is actually in these cars, have the ability to 
inspect them.
    And so we have also moved resources, ATF agents, to the 
border, 100 or so, in an attempt to stop that flow of weapons 
into Mexico.
    Mr. Quigley. I appreciate that.
    I guess, in conclusion, to the extent the President can 
help push toward a reinstitution of the ban on assault weapons, 
automatic weapons, we in Chicago would appreciate it.
    Thank you for your time. I yield back my balance.
    Mr. Cohen. I now recognize the other distinguished jurist 
from the State of Texas--that is just the way it is--Mr. Poe.
    Mr. Poe. Thank you, Mr. Chairman. And there are probably 
only two distinguished jurists in Texas, be that as it may.
    Thank you, Mr. General, for being here. I have been to 
Guantanamo Bay I know you have been as well, and seen the 
prison there. I tell you this. There are Texas sheriff's that 
wish they had that type of facility in their jail because of 
the way that inmates seem to have amenities that aren't in 
other places in the State.
    Have any States asked you to send detainees from Guantanamo 
to their State?
    Mr. Holder. Not that I am aware of.
    Mr. Poe. Have any told you, don't let them come to our 
State?
    Mr. Holder. I think I might have read some things in the 
newspaper. I am not sure about--I have not had any official--
anything officially sent to me, but I think I have read things 
in the newspapers about that.
    Mr. Poe. But you don't know of any States that want 
detainees from Guantanamo Bay?
    Mr. Holder. I have not asked or talked to any Governors or 
Senators or Congressmen. I know that there are a fair number of 
Members of your party who have indicated what their desires 
are.
    Mr. Poe. But nobody has told you that they want them?
    Mr. Holder. I am sorry?
    Mr. Poe. Nobody has told you they want them. No State, no 
official, nobody, no government agency has said let them come 
to our place.
    Mr. Holder. No, I have not asked anybody that question.
    Mr. Poe. And no one has volunteered that information. What 
is your personal definition of a terrorist?
    Mr. Holder. That is an interesting question. I guess a 
person who uses violent means to inflict harm upon innocent 
people or uses the threat of violence to achieve unlawful ends. 
With a little more time, I would probably come up with a better 
definition, but I think that is about the way I would describe 
a terrorist.
    Mr. Poe. Okay. I would request that you come up with your 
definition and submit it to the Chairman of the Committee.
    Mr. Holder. That is fine.
    Mr. Poe. Thank you.
    Last month several top secret security papers were released 
to the public, and apparently in them we learned that Khalid 
Sheikh Mohammed, the 9/11 individual, after being waterboarded, 
started talking. And he claimed that there was going to be an 
airplane cash into a skyscraper in Los Angeles; disclosed a 17-
member terrorist cell; and he also talked about a terrorist 
cell in New York plotting to destroy the Brooklyn Bridge; is 
that correct? Is that information correct?
    Mr. Holder. I feel a little uncomfortable. I don't 
necessarily think I am in a position, given the forum in which 
we are open, to answer questions that might involve the 
disclosure of classified information.
    Mr. Poe. Well, somebody disclosed this information. I read 
this in the Washington Post.
    Mr. Holder. Well, someone probably shouldn't have.
    Mr. Poe. That is a different issue.
    If that information is true, and he started talking only 
because he was waterboarded, do you think maybe waterboarding 
was a good idea to save American lives in those two cases?
    Mr. Holder. The question really is, you can't----
    Mr. Poe. No, I don't want your question; I want my question 
answered.
    Mr. Holder. I was going to answer.
    Mr. Poe. My question is simple. Assume that is true, assume 
it is true hypothetically, and he was waterboarded; and, but 
for being waterboarded, we would have never known about this. 
Do you think maybe waterboarding was a good idea in that case 
or not?
    Mr. Holder. I think the question is whether or not other 
techniques might have gotten the same result that may have 
taken us down the road that I think is inappropriate, and that 
is the use of a technique that I consider to be torture.
    Mr. Poe. No other----
    Mr. Holder. No question about that.
    Mr. Poe. No other techniques appeared to work, if they were 
used; this one did. So you would just rule it out automatically 
because it is waterboarding, even if it saved American lives? 
That is my question.
    Mr. Holder. The question is how are we going to save 
American lives.
    Mr. Poe. No, excuse me, I am sorry. My question is real 
simple. But for waterboarding, we would not have known this 
information. Assume that is true. Do you think waterboarding 
should have been used or not used in this example?
    Mr. Holder. I reject the hypothesis. There is not a basis 
for anyone to conclude that, but for the use of waterboarding 
on a particular person, you could not have gotten the same 
information from that person. We heard testimony from a very 
sophisticated and experienced FBI interrogator just yesterday 
about the success that he had using non-waterboarding 
techniques on Abu Zubaydah.
    Mr. Poe. Of course he didn't get this information by 
talking to him and telling him to give us the information. The 
only way we got the information was by waterboarding.
    Mr. Holder. The testimony of the person who testified 
yesterday was that he got information that was very useful, 
including the identity of Khalid Sheikh Mohammed and including 
the identity of Jose Padilla, using non-waterboarding 
techniques, techniques approved by the FBI. That was the 
testimony of the person yesterday.
    Mr. Poe. Well, but for waterboarding, there is absolutely 
no evidence in your Department or by anybody in your agency 
that you control that you would have received this information 
that there were two planned attacks on America; and, but for 
waterboarding, they did not occur.
    Mr. Holder. Well, actually you do have testimony from 
somebody who was formally a member of the organization that I 
now head. That is an FBI agent who is part of the Justice 
Department. He testified in the contrary way yesterday.
    Mr. Poe. So we would have gotten this information anyway is 
your position?
    Mr. Holder. I don't know if we would have gotten it anyway, 
but I certainly know that I have great faith in the techniques 
that the FBI uses. And the testimony of that FBI agent 
yesterday, also consistent with interactions I have had with 
retired intelligence officers from the military who have 
indicated that you don't have to go to techniques such as 
waterboarding in order to get good, useful intelligence from 
detainees or from suspects.
    Mr. Poe. So you would take the risk that we wouldn't get 
this information, because you are so hellbent on not using 
waterboarding; is that what you are saying?
    Mr. Holder. No. I would never put the American people at 
risk. Nor would I put what is great about this country, and 
that is the values that defines us and separates us from the 
very people who we are trying to fight. That is something also 
that I will not put at risk: the safety of the American people 
and who we are as Americans.
    Mr. Poe. So you would use whatever means was necessary to 
not put Americans at risk?
    Mr. Holder. I will use means that are consistent with our 
values. George Washington in 1776, when he won the Battle of 
Trenton at Christmas, told the people who were taking British 
prisoners that regardless of how the British treated our 
prisoners, we will not treat British prisoners in the same way. 
We are better than that. That is our Founding Father.
    Mr. Poe. I understand that. Excuse me, I yield back the 
balance of my time.
    Mr. Holder. If we are looking for a guide, I think that is 
where I think we should start. George Washington, faced with a 
similar question, came up with that answer.
    Mr. Poe. Well, that is a completely different scenario. 
This is preventive medicine, and people have been apparently 
saved by waterboarding. And it is not the same as the situation 
you mentioned. I yield back.
    Mr. Holder. We will have to disagree about that.
    Mr. Cohen. We now recognize a gentleman who skates on 
frozen water and intimidates goalies, the gentleman from New 
York, Mr. Weiner.
    Mr. Weiner. Thank you. I am not sure I want to get used to 
these little introductions you have been doing, Mr. Chairman.
    Mr. Attorney General, do you share the views of your five 
predecessor Attorney Generals that the COPS program has been a 
success?
    Mr. Holder. Yes, I certainly believe it has been a success.
    Mr. Weiner. Do you want to expand on that at all? I see 
there is a billion dollars in the stimulus program that you 
mentioned in your testimony. And I know that the President is 
committed to hiring 50,000 additional police officers in the 
COPS program. Yet in the budget that was released last week or 
the week before, only funds--funds were only put in sufficient 
to hire 1,500 police officers. Is that going to change? Is this 
going to be, I guess, a 15-year program as opposed to the way 
it has been reauthorized? What is the position of the Justice 
Department and the Administration on the COPS program?
    Mr. Holder. I think as you look at the budget, I think the 
number actually is about 5,500 for that first batch of hiring. 
I think the COPS program has been successful, something that I 
know you have supported a great deal, something that I think we 
learned from the New York City experience. So our ultimate aim 
is to have 50,000 new officers on the street over time.
    Mr. Weiner. Over what period of time?
    Mr. Holder. I would have to get back to you on that. I am 
not sure exactly.
    Mr. Weiner. Because I don't want to confuse the two things. 
One is the stimulus bill that has a billion dollars in it. The 
other is the language that is in the President's budget that 
refers to 50,000 police officers and has $298 million for 
fiscal year 2010. Those numbers only give us enough for 1,500 
police officers, and the bill that we passed out of this 
Committee and passed on the floor envisioned $1.8 billion a 
year. So if you do the math, we are not going to get to the 
50,000 cops in your first term.
    And I just want to know--and the President mentioned on 
Tuesday, again, in the ceremony honoring police officers, his 
intention to hire 50,000 police officers. So I am not sure how 
we make those two numbers meet.
    Mr. Holder. What I would like to do, then, is perhaps get 
back to you with the precise information and how it breaks down 
in terms of money expended and the time frame, the timeline in 
which it would take to get to that 50,000 officers. But it is 
certainly the intention of this Administration to put 50,000 
additional police officers on the streets.
    Mr. Weiner. Before I change the subject, do you want to say 
anything gratuitously complimentary of the sponsor of that 
reauthorization?
    Mr. Holder. Yes, I do. I think the person who did that 
viously should be commended.
    Mr. Weiner. Thank you.
    Mr. Holder. And of great intelligence.
    Mr. Weiner. That is quite enough. You can submit any 
additional remarks for the record.
    Can I talk to you a little bit about DNA and the backlog of 
evidence? You know, it seems that we have had some great 
success in that we have gotten the Federal Government into the 
game of helping States and localities clear out some element of 
the backlog that existed in some police departments.
    But we still have, it seems to me, some structural problems 
as we, with the help of Mr. Schiff and others, as we now expand 
the number of offenders that are going into the database, more 
evidence is being collected, that we still seem to be having a 
problem keeping up; meaning that we are not producing an enough 
labs that are certified, the cost is not what it should be.
    We heard testimony yesterday about some of the problems 
with DNA collection that still needs to exist--that still 
exists. We know, for example, that the turn-around for rape 
kits in the United States is about 30 weeks, and it is about 33 
days in England.
    Is this going to be an era of emphasis for your Department 
to try to figure out how we take the next step in making this 
tool--which everyone, as you know, looks at DNA evidence and 
collection through their own lens. Some people see it as a way 
to put bad guys in jail. Some people see it as a way to 
exonerate those who are innocent. It is a valuable tool, and I 
am concerned that we are reaching a point that we have got a 
choke now. We have so many evidence kits, so many offenders 
being put in the database, if we are not careful it is going to 
lose its value because we are unable to process all that 
information.
    Mr. Holder. You are exactly right. And we have to come up 
with a system, and that is why there is contained in our 
budget, money to try to get at that backlog. But we have to be 
mindful of the fact that as we do the necessary tests to 
establish a basis to use this wonderful technique, we have to 
not only deal with the backlog, we have to come up with ways in 
which we stay current.
    When you have statistics, as the one that you have cited, 
as compared to what is going on in England, there is no reason 
why there should be that disparity. So I think we should focus 
on using the limited resources in the way that we can be most 
effective, and I think the uniformity the people have of the 
view of the value of DNA testing, that is a place where we 
should be spending our limited resources.
    Mr. Weiner. And one final question. Do you support having 
anyone that is arrested for a Federal crime having to submit 
their DNA for a match? Arrestees.
    Mr. Holder. I think that is certainly something that we 
ought to consider. We take fingerprints from people who are 
arrested. And in some ways I think DNA is a 21st century 
fingerprint. The tests that we can now do in order to get DNA 
samples are not necessarily intrusive as they once were. You 
don't have to take blood from somebody, for instance, in order 
to get necessary samples. And so I think that that is something 
that we certainly ought to consider.
    Mr. Cohen. [Presiding.] Thank you.
    Mr. Weiner. Thank you, Mr. Chairman.
    Mr. Cohen. I have been instructed that I need to be more 
like Bud Collier on Beat the Clock, because in 15 minutes we 
are going to be back for votes.
    Mr. Chaffetz from Utah, you are recognized.
    Mr. Chaffetz. Thank you. And thank you, Mr. Attorney 
General, I appreciate it. It is a privilege and I appreciate 
you being here.
    As we get going, I just want to pass on the word that I 
have spent considerable time in ride-alongs with the United 
States Marshals, in particular the JCAT program, the Joint 
Criminal Apprehension Team. I would encourage you to continue 
to push for that program. It works wonderfully within the State 
of Utah. I appreciate the good work those men and women are 
doing and just want to add a vote of confidence and support to 
that program as it moves forward.
    I had the opportunity, as I know you did, to go to 
Guantanamo Bay. I was very fortunate to go there. I appreciate 
the great work that the men and women are doing there. But I do 
have some questions and concerns about the Administration's 
policy as it relates to terrorism and terrorists. I just can't, 
for one, see what possible benefit the American people would 
have by bringing one of these terrorists to the United States 
of America.
    Mr. Holder. Well, I mean, the focus that we have is on 
closing Guantanamo which has served as a recruiting tool for al 
Qaeda around----
    Mr. Chaffetz. But my question is, what is the benefit--what 
possible benefit could there be to bringing any one of those 
people to the United States of America?
    Mr. Holder. You see, I think the question--the focus is on 
what we do with Guantanamo. That is----
    Mr. Chaffetz. My question is, what benefit--you said that 
you would not implement anything, anything that would pose a 
risk to the United States of America. Now, it seems to me that 
there would be zero risk if we brought zero of the people to 
the United States of America. So what possible benefit is there 
to the American people to bring one of those detainees to the 
United States of America?
    Mr. Holder. You have to look at the question in a larger 
sense. The question really, from my perspective, is what 
benefit do the American people get by emptying the cells in 
Guantanamo, a facility that is now run I think in an 
appropriate way, but I think that has, as I said, served as a 
recruiting tool for al Qaeda and it has alienated us from many 
of our allies. And then once we empty those cells, we have to 
find places for these people to go. And so I think that is the 
benefit that the American people get from closing Guantanamo.
    Mr. Chaffetz. So it is a PR effort, right? Is that right? 
Is that a fair--it is a public relations effort, right, to try 
to persuade the world that we are more humane than what we have 
done in the Bush administration years; is that accurate?
    Mr. Holder. It is not a PR effort. It is a return to, I 
think, practices and values that have always defined this 
Nation. And I mean that under Republican as well as Democratic 
Presidents. It is a recognition or a signal to the world that 
the United States is back in a substantial way. And I don't 
think we can underestimate the impact of that, as I have been 
to other countries----
    Mr. Chaffetz. My time is so short. My apologies for cutting 
you off. Can you assure the American people that no one who is 
currently detained in Guantanamo Bay and who has received 
military training at a camp run by known terrorists will be 
released in the United States absent an order to do so by the 
Supreme Court of the United States?
    Mr. Holder. What I can assure the American people is that 
nobody from Guantanamo who would pose a danger to the United 
States will be admitted into----
    Mr. Chaffetz. If we want to have the smallest risk and the 
smallest amount of danger, wouldn't that mean bringing zero of 
them to the United States of America?
    Mr. Holder. I think if we want to maximize the benefit that 
we get, we want to close Guantanamo in the timetable that the 
President has given us, and then use the enhanced relationships 
that we will have around the world as a result.
    Mr. Chaffetz. But if we want a lower risk--you answered it 
with a question about maximizing benefit. I am saying what are 
we going to do to make sure that the risk is at its absolute 
lowest.
    Mr. Holder. We do that by what we are doing now, which is 
to go into those files, 241 of them, painfully, one by one, and 
make sure we make determinations that the only people put up 
for release or for transfer are people who will do no harm to 
the citizens of this country.
    Mr. Chaffetz. But the lowest risk would be if none of them 
came to the United States; am I wrong in that?
    Mr. Holder. I think the lowest risk is really looking at 
these people, making those determinations, and then figuring 
out where they can best be placed.
    Mr. Chaffetz. But what benefit would there be for placing 
any one of them anywhere within the United States of America? 
What is the benefit?
    Mr. Holder. Again, as I said, I think the benefit comes 
from the closing of Guantanamo. That is where the benefit 
comes. You cut out a recruiting tool and you start up--you end 
the alienation of our relationship with our allies.
    Mr. Chaffetz. I happen to disagree with that assessment, 
having been to Guantanamo. I would ask unanimous consent, Mr. 
Chairman, to be able to submit a letter I sent to the President 
after my return from Guantanamo Bay, and I would appreciate if 
I could submit that for the record.
    Mr. Cohen. Without objection.
    Mr. Chaffetz. I am sorry. I can't see the clock. I hope--is 
it red?
    Mr. Cohen. It is red. Thank you for yielding back your 
time. Thank you, sir.
    Mr. Chaffetz. Thank you. Thank you. I appreciate it.
    Mr. Cohen. He is good on that. He is a field goal kicker, 
so he is used to kicking in the last few seconds.
    I now recognize the lady from Texas, the distinguished Ms. 
Sheila Jackson Lee.
    Ms. Jackson Lee. Mr. General, it is a pleasure. Thank you 
very much. I had double duty today in the Homeland Security 
Committee and in here, and it shows how much of our work 
overlaps.
    I wanted to applaud the Administration for its work, since 
part of it was court-involved, of the release of the young 
reporter from Iran. I think the strategy was effective and I am 
glad that she has returned back to her family. In that 
instance, was it a combination of lawyers going to a court, 
obviously after the court had been softened, if I can use in 
quotes? We know that she was sentenced to a very long sentence, 
and it was in essence a level of finality.
    But with the, I think, appropriate statements by the 
Administration, it shows that the bully pulpit is appropriate. 
It also shows that people do watch what the United States does.
    Let me again pose, very quickly, questions dealing with 
waterboarding, simply to say that as I understand it, it has 
been defined internationally as torture. Is that not correct?
    Mr. Holder. I am not sure about whether it--there is a list 
of techniques internationally and waterboarding would be one of 
them.
    Ms. Jackson Lee. How would you characterize it?
    Mr. Holder. As I look at the definition of torture and, 
given the history of the use of that technique, it seems clear 
to me that waterboarding is torture.
    Ms. Jackson Lee. And in the assessment and defining aspects 
of treatment that might be considered torture, you don't in any 
way discard the ultimate responsibility of securing the United 
States of America?
    Mr. Holder. Not at all. That is the primary responsibility 
I have as the Attorney General of the United States. It is 
something that I wake up thinking about. It is something that I 
think about as I go to bed at night. And I will use all the 
tools that are at my disposal.
    Ms. Jackson Lee. Sorry, just for the time. And if it was to 
come to your attention, either by various intelligence 
agencies, the FBI, your military consultations, which I know--
and because of the President's sort of bringing together the 
National Security and Homeland Security team, you would not 
hesitate in any way to first, of course, brief the President 
and then, of course, if congressional action was needed to 
approach us and brief us for action?
    Mr. Holder. In terms of----
    Ms. Jackson Lee. If in any way you felt the actions we have 
just taken or will be taken as we define what we will continue 
to do or not do in securing intelligence, if you were to be 
briefed to determine that our national security was in 
jeopardy, you would respond accordingly, first to the 
President, I would hope, and then of course to the appropriate 
congressional oversight committees?
    Mr. Holder. Yes. One of the task forces that the President 
created in his January 22nd executive order is a detention and 
interrogation--an interrogation task force that is charged with 
the responsibility of looking at what techniques are effective, 
what techniques should be used by our government beyond perhaps 
those that are contained in the Army Field Manual. And that 
group is supposed to report back in July of this year.
    Ms. Jackson Lee. I am aware of that and you are being 
constantly vigilant. I know you were down in Guantanamo Bay. I 
was down in Guantanamo Bay. We know that the President still 
has as his position that that facility will close.
    Again, let me ask the question on Guantanamo Bay, and of 
course I have been there a number of times, I have watched 
interrogation. So the question is: If you were to determine 
ultimately--not projecting your final determination--that there 
was some jeopardy to the Nation's national security, in your 
role as Attorney General would you then provide, as you have 
been asked to do, the appropriate briefing and ensure that the 
national security of the United States would not be 
jeopardized?
    Mr. Holder. I would obviously bring any concerns I had to 
the President, would brief the appropriate committees to the 
extent that I had concerns, and then try to work with those 
committees to try to alleviate the concern.
    Ms. Jackson Lee. So we are somewhat precipitous in 
suggesting that our national security is at a collapse, because 
we do have individuals who have been tasked to determine that?
    Mr. Holder. Yeah. I mean, that is one of the things I swore 
to do, as did the President, as did all the Members of this 
Committee, to preserve, protect and defend the United States.
    Ms. Jackson Lee. And I thank you. Let me quickly move to 
Harris County where I have submitted a number of letters 
regarding a 10-year period in Harris County Jail where about 
100 people died; comments being made by individuals that were 
custodians when someone was bleeding, an inmate, and they said, 
do you want me to get a Band-Aid?
    I believe we have entered into an investigation after many, 
many letters and calls. I would appreciate that if we have a 
newly elected sheriff, we are attempting to put in place the 
kind of procedures that would incarcerate people but allow them 
to live and leave. Can I find out when you might have some 
report on that investigation?
    Mr. Holder. I will try to get back to you with that. It is 
always difficult to report on ongoing investigations. But I 
think, as I indicated earlier, to the extent that we can share 
information that will result in better practices being 
instituted, we want to share that information and we will find 
a way that we can do that.
    Ms. Jackson Lee. Might I take you up on that offer, 
separate and apart from the investigation, to be able to have 
the new sheriff and small numbers of his team visit on best 
practices or be able to work through those issues? I think that 
would be enormously helpful. Let me if I can----
    Mr. Holder. I would glad to work with you.
    Ms. Jackson Lee. I would appreciate it.
    Let me just conclude on this issue of drug addiction and 
the abuse of drugs, the border, et cetera. I hope that I can 
get the same sort of complementary approach as my good friend 
did on his authorization bill on COPS.
    But I have H.R. 265 which talks about one-to-one, and I 
know there are many different discussions on this, but also to 
the high-value cartel, actors if you will, enhances their 
sentencing. So it sort of balances the question.
    I would raise this question about the Department of 
Justice's interests in a broader discussion about the impact of 
drugs as relates to internationally--you have an international 
component, Afghanistan, the border, the drugs here in the 
United States--so that we can look at the big picture. And then 
the response to the question of working with the little guys 
that are one-on-one, but yet not ignoring the bad actors who 
continue to fuel and to kill and to produce and to see no 
ending to their bad acts that now impact all of, or a large 
part, of the United States.
    Mr. Holder. That is exactly the approach that we would 
take. You and I have talked about this for years. In focusing 
on street crime and what happens in our communities, we can 
never lose sight of the fact that there are these big players, 
both within this country and outside this country, who make 
millions of dollars, billions of dollars, on the backs of 
people in this country, people who are addicted to drugs. So 
our focus has to be not only on keeping our streets safe, but 
also interdiction and punishing those bringing narcotics into 
our country.
    Ms. Jackson Lee. Let me thank you. Don't forget the 
Community Relations Office that I said could be a great asset. 
It was not used properly in Gina 6. It was not listened to. And 
I would like to discuss with the Department of Justice about 
some enhanced requirements that when there is conflict, either 
tied to Federal funding as relates to the district attorney or 
local law enforcement, that the community relations vehicle be 
an asset and be utilized. It was not used there. It turned into 
a crisis, and I think you know the whole story of Gina 6 where 
some youngsters were incarcerated and others were not, and the 
community relations person was there but was not listened to.
    I thank the gentleman, Chairman, for his kindness. And, Mr. 
General, maybe we can follow up on that conservation. Maybe you 
want one sentence about that as I close. I yield back, and 
maybe you could just----
    Mr. Cohen. Thank you, thank you. We are going to have to 
limit everybody to 5 minutes to get everybody in. So thank you, 
sir.
    Mr. Franks from Arizona, you are recognized.
    Mr. Franks. Well, thank you, Mr. Chairman. Thank you, Mr. 
Holder, for being here.
    Mr. Holder, I am a Member of both the Judiciary Committee 
and the Armed Services Committee, so I get a lot of information 
about Gitmo. And some of the hearings, you know, we talk about 
the enemy combatants from both directions in heavy doses.
    And I have got a couple of questions about what is commonly 
known as lawfare. Not warfare, but lawfare. The term 
``lawfare'' describes the growing use of legal claims, usually 
bogus in my opinion, that are used as tool of war. The goal is 
to gain the moral advantage over one's enemy in the court of 
public opinion and, potentially, legal advantage in 
international tribunals. And I guess I would like to get your 
perspective on this.
    As was reported by Jed Babbin in Human Events in June 2008, 
you gave a speech to the American Constitution Society where 
you spoke of the Supreme Court's decision in Boumedienne v. 
Bush, which for the first time granted habeas corpus rights to 
terrorist detainees held at Guantanamo. Justice Scalia in his 
dissent said the decision, quote, will almost certainly cause 
more Americans to be killed.
    In your speech you said of the Boumedienne decision, quote, 
the very recent Supreme Court decision by only a 5-to-4 vote 
concerning habeas corpus in Guantanamo is an important first 
step, but we must go much further, unquote.
    Now, Boumedienne in my judgment was a radical departure 
even from earlier Supreme Court decisions on the subject and 
from the law of war, going back to the founding of the United 
States.
    So I would like to ask you, sir, how much farther 
specifically--how would you like the law to go much farther in 
that regard; specifically, what more constitutional rights 
should we grant to terrorist detainees?
    Mr. Holder. In that speech I was talking about--when I said 
going further, it meant not with regard to the detainee; I was 
talking about a whole range of things that I disagreed with 
what that Administration was doing with regard to unauthorized 
surveillance of American citizens, the interrogation policies 
in place. That is what I was talking about in terms of where we 
needed to go farther.
    Mr. Franks. Okay. Well, during the hearing before the House 
Armed Services Committee in 2007, witnesses identified many 
dangers associated with allowing terrorists to wage lawfare 
against the United States from within the United States 
judicial system.
    One expert witness testified before the Committee, and he 
was Associate Deputy Attorney General Greg Katsas. In speaking 
at one point about the proposals for habeas corpus rights for 
detainees, Mr. Katsas opined as follows: Quote, if you have the 
enemy combatant determination being done by a court in this 
country, where there would be stronger arguments on the other 
side for the application of full constitutional protections, 
then we would be in the nightmare world of arguing about 
Miranda warnings for Mr. Mohammed before his interrogation and 
the, quote, knock-and-announce rules before we go into caves in 
Afghanistan. Those are all risks attendant with habeas corpus.
    So is the President's Department of Justice prepared to 
extend Miranda rights to terrorists on the battlefield or 
before interrogations?
    Mr. Holder. We have not said that that is our position. And 
when it comes to picking people up off the battlefield, I think 
you are looking more to the laws of war than the criminal laws 
of the United States. I do note that as you indicated, that a 
Supreme Court, not a liberal Supreme Court, ruled that the 
right of habeas corpus did attach to people who were detained 
at Guantanamo. And in spite of what Justice Scalia said, five 
of his counterparts disagreed with him.
    Mr. Franks. Last question. Al Qaeda's training manual, 
seized by British authorities in Manchester, England, openly 
instructs detained al Qaeda fighters to claim torture and other 
types of abuse as a means of obtaining a moral advantage over 
their captors. That advice has been routinely followed by 
detainees at Guantanamo Bay who have succeeded in generating 
incessant demands from international actors or for the base's 
closure, for their own liberation, unquote.
    That is what was in their manual.
    So Mr. Rivkin laid out the al Qaeda lawfare game plan, and 
there are two objectives, and it seems to be coming to pass, 
just as the terrorists had planned.
    Isn't the Administration's closure of Gitmo and the removal 
of enemy combatants, possibly to the United States, a complete 
victory of lawfare for al Qaeda? I mean, what else could they 
possibly ask for if this is in their book and we are following 
to the letter? What more could they ask for us to do? And what 
is our plan next?
    Mr. Holder. I don't think it is a victory. I think it will 
be a victory for our country and a victory for the causes that 
we fight for by closing Guantanamo and taking from al Qaeda the 
ability to recruit and point to that place as a place where 
inappropriate things happened, true or not. I mean, that has 
become a symbol of practices that this Administration has 
decided not to use.
    As I said also, it will allow us to interact with our 
allies in a way that we presently cannot if we close 
Guantanamo. So I don't see the closing of Guantanamo as a 
victory at all for al Qaeda. I think it is going to be a 
victory for the American people and for our allies.
    Mr. Franks. I am out of time. But I certainly think al 
Qaeda sees it as a victory.
    Mr. Cohen. Thank you. I recognize the gentleman who 
represents the Rose Bowl, Mr. Schiff.
    Mr. Schiff. Thank you, Mr. Chairman. And thank you, 
Attorney General, for the superb job you are doing. None of 
these questions are easy or they would have been answered 
already. And what I find remarkable about some of the comments 
and questions that have been made about Guantanamo today is my 
colleagues on the other side of the aisle seem to assume there 
is no risk inherent in keeping Guantanamo open; that somehow 
you can assure the American people that we can keep it open, we 
can detain people indefinitely, we can torture them if 
necessary, we can ignore the courts if possible, and somehow 
this won't have any adverse impact on the American people, what 
we stand for, or serve as a recruiting tool for people who want 
to attack us.
    There is no simple answer here, and I appreciate the 
methodical way that your Department and the Defense Department 
are going through each, detainee by detainee, to figure out 
what the proper recourse is procedurally and what forum, et 
cetera. And I don't hear any suggestion, frankly, coming from 
my colleagues on the other side, any constructive suggestion 
about what ought to be done with these people. So anyway, I 
reiterate my interest in working with your--with you and your 
office on these issues.
    Today I wanted to just follow up a little bit on the DNA 
issue. When the FBI Director testified last year before the CJS 
Appropriations Committee, where I also said--I expressed 
concern that the existing backlog would increase with the new 
law that was requiring more samples to be taken before, and I 
was assured that the fiscal year 2009 request of 30 million 
would eliminate the backlog. In subsequent meetings with the 
Justice Department last year, I was assured that that was all 
that they needed, the backlog would be gone. I think we may 
have even made a wager over lunch or dinner; or maybe I said I 
would simply eat my hat if we didn't have a backlog a year 
later.
    The backlog is much worse than I think it was a year ago, 
and I think it is going to require serious resources to get it 
under control. I appreciate the fact that the Department has 
resumed funding backlog in terms of State and local governments 
which are also having this problem. But I would like to work 
with you also on addressing the DNA backlog, but also 
addressing a broader issue that a lot of the forensics capacity 
in the country, certainly on the State and local level, maybe 
on the Federal level as well, is also hurting--fingerprint 
labs, ballistic labs.
    So it is not just the DNA issue. I think we are facing an 
aging infrastructure in terms of forensics, certainly an aging 
workforce, not a whole lot of people going into the field. I 
would love to work with you on those issues.
    I have one very specific question in terms of the 
government's handling of DNA, and that is I am from Los 
Angeles. We have probably the biggest backlog anywhere. And in 
the case of rape kits, we have thousands of untested rape kits 
in Los Angeles, maybe as many as 10,000 between LAPD and LA 
Sheriff's Office. Some of those now are beyond 10 years old, 
and even if the evidence identifies the rapist, may be barred 
by the statute of limitations. That is just an unthinkable 
situation.
    They are now adopting new policies of testing every kit, 
and not saying, well, we will test some and not others. I know 
that the incidents of rape on military facilities or on tribal 
lands, the jurisdiction of the Federal Government is limited. 
But I wanted to ask whether the Federal Government has a policy 
of testing every rape kit for rapes committed on Federal lands, 
and I don't know if you know the answer for you don't. I would 
love to follow up with you and make sure that kind of policy is 
instituted.
    Mr. Holder. I think it is a good policy. I don't know, 
frankly, if it is the policy of the Federal Government. But I 
will look into that and get you a written response, get a 
response back to you.
    But I think the point you make is, in fact, a good one. 
Given the power of DNA evidence, you can--just by doing that, 
you can solve crimes. So I think that the testing of those kits 
makes an awful lot of sense.
    Mr. Schiff. And we have seen, unfortunately, where there 
has been a delay in testing in particular rape kits. Where they 
are tested and you are able to make a positive ID, we learn 
that in the interim between the time the kit was taken and the 
time, years later, when it was tested, the suspect has gone on 
to rape other women. Had you tested it promptly--and I don't 
mean you-you--but had law enforcement, it would have meant 
rapes not occurring and murders not occurring.
    And given the fact that the DNA is converted to a unique 
numeric identifier that doesn't betray information about hair 
color or propensity for colon cancer or carry anything like 
that, I think the privacy interests are much less, frankly, 
than the privacy interests of someone not to be raped or 
murdered. And I look forward to working with you on it.
    Thank you, Mr. Attorney General.
    Mr. Holder. I look forward to working with you as well.
    Mr. Cohen. Thank you, sir. Lawyers, rape kits and money.
    I recognize the gentleman from Florida, Mr. Rooney.
    Mr. Rooney. Thank you, Mr. Chairman. You know, one of the 
advantages of being a freshman is that I get to listen to all 
my colleagues, and get butt in front of about 30 times, before 
it is actually my turn. But thank you for your testimony and 
for your service to our country.
    My questions are kind of open-ended. And the one thing that 
I am concerned about is you made the statement that we have 
only been here for a few months, and that the President has 
ordered the closure of Guantanamo Bay within 8 months. Where 
are we exactly? I know you talked about possibly Article 3 
courts, possibly military courts. Where are we with regard to 
criminal procedure?
    And, by the way, I want to thank you for offering that you 
would work with Congress to help you with any of these 
procedures, and I want to express my willingness to help as we 
move forward.
    But where exactly are we? Because time is--8 months is not 
that long. When you are talking about 241 people that need to 
be moved by that closure, where exactly are we with regard to 
procedure?
    Mr. Holder. Well, we are moving along with regard to those 
reviews. I don't have the precise number that we have completed 
at this point. But I think we are on track to have this done 
within the time frame that the President has given to us. But 
he has also given us an indication that to the extent I need--
we need more people to do the job that he has set out before 
us, that we have that ability. So we have about 80 lawyers now, 
80 lawyers--people, I guess, altogether who are involved in 
this process with regard to the detention review process. But 
we need to put more people on it. We are prepared to do that.
    Mr. Rooney. When that is established and we are moving 
forward, whatever that procedure may be, do you--will you 
assume or speculate today that that standard, whatever criminal 
procedure we use there, will be the same standard--I am just 
trying to get some kind of response that there won't be this 
sort of haze or fog about where we are when we move forward. If 
there are detainees taken off the battlefield that we pose a 
threat in Afghanistan or wherever, and they are not taken to 
Gitmo, wherever they are used, what due process are they going 
to get? Is it going to be this same due process or do you 
foresee this is sort of a fluid----
    Mr. Holder. That is actually an excellent question, and one 
of the things that the President anticipated in forming that 
detention review committee task force. One of the things they 
are charged with doing is coming up with what are the standards 
going to be for people who are detained going forward, be it in 
Iraq, Afghanistan other places, how are we going to deal with 
those people, how are they going to be detained, what are the 
appropriate ways in which we should interact with them?
    So that task force has a responsibility of reporting back 
in July. But that is something that, as I said, I think that is 
an excellent question and one that has caused the formation of 
a separate task force.
    Mr. Rooney. And finally, you know, I was down in Guantanamo 
Bay recently, as have you been, and one of the things that kind 
of dawned on me as we were driving around there was that there 
is--they are actually still building there. There are still 
dollars appropriated. And you saw the facility and what it is 
capable of.
    And I understand what your argument is about the 
recruitment tool and the stigma that Guantanamo Bay, Cuba has 
psychologically, worldwide, and I am not going to debate on 
that. But one of the things that kind of dawned on me is one of 
the reasons for the stigma is possibly that, as the gentleman 
from the other side of the aisle pointed out, that they are 
detained indefinitely, I believe, as he was inferring, without 
due process.
    Assuming they do go through the due process in the next 
year, inevitably some of them are going to be found guilty or 
need continued detainment. Is there any consideration given to 
the possibility of Guantanamo Bay, Cuba being reopened as a 
prison--I think that there is one person down there that is 
actually considered a prisoner out of the 241. Is there any 
consideration to Guantanamo Bay as a prison after due process, 
or is that stigma so crippling that is not even in the cards 
either?
    Mr. Holder. That is not something that has been discussed. 
I think that all the negatives that are attached to Guantanamo, 
inconsistent I think with kind of the Guantanamo that now 
exists--I think that stigma, as you put it, probably will still 
be attached to the facility. But as I said, we have not 
discussed the possibility of the continuing role for Guantanamo 
after January of next year.
    Mr. Rooney. Thank you, Mr. Chairman. I yield back. Thank 
you, sir.
    Mr. Cohen. Thank you, sir. I recognize Mr. Sherman from 
California, the golden State.
    Mr. Sherman. Thank you. Five and a half hours of talking 
about Gitmo under the lights in this building in this room 
strike me as well beyond what the Army Field Manual will allow. 
And so I am going to ask you questions on a completely 
different subject; and that is the subject of what your 
relationship with the other departments of the Federal 
Government, your colleagues in the Cabinet, and what you should 
do or would do if you saw that those other Cabinet departments 
were clearly violating the law.
    There are a couple of instances I want to bring to your 
attention and that I hope that you would have your lawyers 
review to see if you agree with me that these are violations of 
the law.
    The first is the Iran Sanctions Act, which among other 
things requires the State Department to name those oil 
companies and others that are investing in the oil sector in 
Iran. Now, for 10 years, the State Department has refused to do 
so, explaining to me that our friends in Europe would be 
offended if they were to follow that statutory requirement. It 
seems to me a deliberate failure to carry out the law would be 
something that the Justice Department would be concerned about.
    The second issue is of more recent vintage and deals with 
the TARP, the bank bailout bill, in which the Secretary of the 
Treasury has announced that whatever moneys are repaid by the 
banks will then be recycled into other bailout expenditures or 
investments, even though the statute is very clear that that 
money is supposed to go into the general fund of the Treasury.
    And so my questions for you are: Will you have the Justice 
Department look at these two legal issues and get back to me, 
and will you inform your colleagues of the results of that 
review? And what action should your Department take if it is 
not, in your opinion, a grey area, but you see another Cabinet 
official, in the view of you and your lawyers, just clearly 
failing to follow the law?
    Mr. Holder. I will certainly look at the two fact 
situations that you described and we will get back to you with 
regard to an answer. And if there is a problem that we 
identify, then share that concern or do more, whatever is 
appropriate, with the two other departments.
    With regard to your larger question, to the extent that we 
in the Justice Department see a deficiency that another 
department--a legal deficiency that another department has, we 
would certainly share that view with them. Obviously, to the 
extent that we saw crimes occurring in other departments, we 
would investigate them. And that is why--I think that is----
    Mr. Sherman. If a Cabinet officer or subCabinet officer 
just takes money that is appropriated for one purpose and 
spends it on another purpose or takes funds that are supposed 
to be in the general fund or returned to the general fund, and 
just decides to do something else with it, obviously if they 
are in the grey zone--I mean, different lawyers can differ on 
some things, but we have to agree that some things are clear 
enough that you can say something is clearly a violation--what 
penalties are imposed on a Cabinet officer? And is Congress 
basically just an advisory body where Cabinet officers can just 
do what they want and face no penalties for violating or 
failing to follow statute?
    Mr. Holder. Every Cabinet officer is responsible for, 
obviously, following the law, the regulations that exist. And 
to the extent there is a grey area in the questions, the Office 
of Legal Counsel at the Justice Department is, I think, 
entrusted with the final say as to what the law is. If there is 
a dispute between State, for instance, and the Interior 
Department and Justice--I don't know--the dispute can be--it is 
a legal question. The Office of Legal Counsel can view the 
fact, apply the law, and then come up with a determination and 
issue an opinion.
    Mr. Sherman. But if somebody just ignores the opinion, or 
if in the predecessor Administration there were people who did 
things that were clearly illegal and spent money that was 
clearly not appropriated by Congress for that purpose, are they 
civilly liable, criminally liable, or do we just sweep it under 
the rug?
    Mr. Holder. A lot of it is--so many of those questions are 
fact-specific. You have to know--there is the possibility, I 
suppose, of personal liability. There is the question of 
personal criminal liability. There is the possibility of 
personal civil liability. There are potentially institutional 
issues that just have to be worked out. If, in fact, one of the 
institutions of government is conducting itself, and has for 
years, in a way that is inconsistent with statutes or 
regulations, and that is brought to my attention, then the 
President will ultimately have to get involved. Congress has 
the ability to conduct oversight hearings.
    Mr. Sherman. Well, oversight hearings don't actually force 
anybody to do anything. As to the two issues you are going to 
resolve, I realize that the Administration can waive imposing 
sanctions on companies that invest in the Iran oil sector, but 
they have to be publicly named. And as to the TARP legislation, 
I will get you my legal analysis and you can tell me whether it 
is right or wrong.
    Mr. Holder. That is fine.
    Mr. Cohen. Thank you. Mr. Jordan from Ohio will graciously 
ask one question, and then we are going to run up and vote, do 
the votes immediately, and if you are so inclined and willing 
to stay, the people will run back here immediately, like Bob 
Hayes and get it over with.
    Mr. Holder. Thank you.
    Mr. Jordan. Thank you, Mr. Chairman. And, Mr. Attorney 
General, thank you. I know you have been here long. I 
appreciate that.
    Congress passed a defense--I am only just going to read 
this, but I edited out some of the--passed the Defense of 
Marriage Act in 1996, a solid bipartisan vote, 342-to-67 in the 
House, 85-to-14 in the Senate. President Clinton signed it.
    Look, the act makes clear that marriage is what marriage 
has always been. But this definition has been challenged in 
Federal district court by GLAAD. They filed suit in March. We 
sent you a letter, 77 House Members, including the Ranking 
Member of this Committee, myself, many other Members of this 
Committee. The Minority Leader sent you a letter back in March 
of this year, seeking your assurance that you would vigorously 
defend the law in its entirety in accordance with the 
responsibilities of your office.
    So in light of what we have seen happen recently in Iowa 
and in Maine, just last week here in the District with what the 
Council did relative to the institution of marriage, and 
frankly, in light of President Obama's expressed opposition to 
this legislation, I just wanted to ask you about will you 
defend the constitutionality of this act? Will you vigorously 
defend it? And if you so choose, your thoughts on the 
institution of marriage?
    Mr. Holder. Well, I think we have--there is a case--I have 
to search my memory. We have a case that we are presently 
engaged in. I have to look at that. I might have to get back to 
you on that one. I am not sure what the status of that case is. 
And so I am not sure I am able to answer the question about 
where the Department stands with regard to the enforcement of 
the act. But I think we have a pending case.
    Mr. Jordan. Right. The case that was filed in March by the 
Gay and Lesbian Advocates and Defenders, the GLAAD case?
    Mr. Holder. I am not sure.
    Mr. Jordan. If you wouldn't mind--we sent you the letter 
March of this year--responding to that letter and getting back 
to me on this question, we would appreciate that.
    Mr. Holder. Okay.
    Mr. Jordan. Okay. Thank you, Mr. Chairman.
    Mr. Cohen. Thank you. And in the interest of domestic 
tranquility, we will not ask you to give your personal 
definition of marriage.
    And we will return here, if you would be so kind to stay 
with us, in about 12 minutes. Thank you, sir.
    Mr. Holder. Thank you.
    Ms. Wasserman Schultz. [Presiding.] I would like to call 
the meeting back to order. I am going to recognize myself for 5 
minutes.
    Mr. Attorney General, it is a pleasure to be with you. 
First of all, let me tell you that I truly believe that there 
is no one more qualified to serve as Attorney General of the 
United States of America than you.
    Mr. Holder. Thank you.
    Ms. Wasserman Schultz. And I was thrilled when you were 
nominated and feel confident that you can bring the Department 
of Justice back from ruin and politization that we have endured 
for the last number of years.
    In your prepared remarks you said that the Department will 
serve the cause of justice and not just the fleeting interest 
of politics. And I know that you have mentioned that you are 
committed to reinvigorating the traditional missions of the 
Department, which includes fighting crime, and I couldn't agree 
with you more about both of those items.
    What I would like to talk about and ask you about is the 
Department's commitment to pursuing child exploitation, 
particularly the exploding crisis of child pornography 
trafficking. Last year in this Committee we heard evidence that 
law enforcement is able to identify more than 500,000 unique 
computers in the United States alone that are actively engaged 
in distributing videos and photographs of the rape and torture 
of children, and those images include young toddlers and 
infants.
    Conservative estimates indicate that at least one in three 
of these pornography trafficking suspects is also a hands-on 
abuser with real local child victims. I mean, these are crime 
scene photos, not the traditional pornography as you know. We 
are talking about real children that are out there waiting to 
be saved. And we have the technology to prevent child sexual 
abuse on a massive scale just by tracking child pornography 
traffickers.
    We also heard that last year fewer than 2 percent of those 
cases are actually being investigated, and that was due both to 
the lack of resources as well as the failure of the Justice 
Department to make it a priority. In 2008, I was proud to work 
with then-Senator Joe Biden to pass the Protect Our Children 
Act into law, and that was signed into law last October. And 
there are a few key provisions that I would like to focus on 
with you, if you could help me with the Department's plans.
    The law authorized increased appropriations to the Internet 
Crimes Against Children task forces from the 2008 levels of 
$15.9 million to $60 million. And as you know, the ICAC task 
forces are the backbone of our national capacity to combat this 
crisis. In the 2009 appropriations bill, the ICAC funding was 
included in the bill for $70 million for NCMIC. Only $21 
million of that, though, was allocated by Justice to the ICAC 
program.
    Now in fiscal year 2010 that actually dropped from 70 
million--NCMIC's budget was cut from $70 million to $60 
million, and it is unclear how much of that is going to be 
dedicated to the ICAC funding. But knowing how poorly we are 
doing in investigating these crimes with 15.9 million, clearly 
if we have less than 15.9 million or we have flat funding, to 
me that seems like the Administration is also not going to make 
the Protect Our Children Act and pursuing child pornographers 
and child exploitation a priority.
    So could you tell us where you are on that issue? And in 
particular, the law also requires the creation of a National 
Strategy for Child Exploitation Prevention as well as the 
appointment of a high-level official within DOJ for child 
exploitation prevention. So if you can tell us where you are on 
the appointment of that official and the development of the 
national strategy as well.
    Mr. Holder. Thank you for your kind remarks. First, with 
regard to the appointment of that official, the Protect Our 
Children Act 2008, we are in the process of doing that and I am 
hopeful that I will have somebody relatively soon for that 
position.
    The area that you have described is a priority of the 
Department--it is a priority of mine. When I was the Deputy 
Attorney General, one of the things that I kind of carved out 
as a responsibility of mine was the whole question of children 
and how they are impacted by--frankly, ignored by our criminal 
justice system. And one of the things I want to do as Attorney 
General--I have only been there about 3 months or so and there 
has been a lot of stuff, a lot of incoming. As we get things 
more in place with more of our people in place, that is 
certainly one of the areas that I want to continue my work.
    And it is interesting because I think you really hit an 
important point, that it is different from the issues that were 
of concern to me when it came to children 9 years or so, 10 
years or so, when I left the Department are different than the 
ones that exist. The Internet, a wonderful tool, is something 
that now has been used to perpetrate, foment, keep going child 
pornography. And it is something that we have to dedicate 
ourselves too.
    Ms. Wasserman Schultz. We can't just think about child 
pornography in a bland, general sense. When we are talking 
about trafficking of child pornography, these are real child 
victims. The resources that we don't spend are the children 
that we do not save.
    Mr. Holder. I don't disagree with you. And you know, I 
think that too often we focus on these Internet images without 
giving thought to the fact that these are images of real live 
human beings, real live children. The question is--you 
certainly have to focus on the Internet component, but you also 
to have determine where is that child, what is happening to the 
welfare of that child? And that is something that, as I said, 
will be a priority for this Justice Department.
    Ms. Wasserman Schultz. Can I ask whether you will be 
committed to making sure that we can fully fund the Protect Our 
Children Act going forward and make sure that that we can get 
the resources? Because literally it is the resources that are 
going to make sure that we can fund the ICAC network and get 
the law enforcement investigations going. We know that we can 
rescue a child 30 percent of the time if they are given the 
resources to investigate.
    Mr. Holder. I will fight. Lots of people have different 
priorities. But when I identify as my small list of priorities 
the things that I need to have fully funded, and if I make this 
one of them--and I will--my hope that I will have a response of 
OMB listening to me.
    Ms. Wasserman Schultz. Thank you. And just before--my time 
has expired but there is one more piece of this--it is nice to 
Chair the Committee--but the last piece of my question is on 
the national ICAC data network. Part of the law called for the 
creation and proper funding ofthat. It is a law enforcement 
controlled platform. We don't want to let the ICAC data network 
move into the private sector; we need it to remain as a public 
backbone.
    And right now what has occurred, apparently, is that the 
Department--the Office of Juvenile Justice and Delinquency 
Prevention put out a solicitation to create the system before 
the appointment of a high-level official and prior to the 
appointment of the steering committee that is mandated by the 
law. We are going to move forward with that before there is any 
coordination or development of a plan or a high-level official 
is in place.
    Is there any way to delay that so that we can have the 
other thing in place first, so this can be the coordinated 
effort that we intended when we passed the law?
    Mr. Holder. That is actually a good point. Let me look into 
that. There is obviously a responsibility on my part to appoint 
that person, and we will do that as quickly as we can. And you 
raise a legitimate concern about not putting in place the very 
things that person is supposed to coordinate.
    Ms. Wasserman Schultz. Exactly.
    Mr. Holder. Let me look into that and we will get back to 
you both with regard to the name of the person and how we are 
going to proceed in formulating the plan.
    Ms. Wasserman Schultz. Thank you so much. The gentleman 
from New York is recognized for 5 minutes.
    Mr. Maffei. Thank you very much, Madam Chairman. Mr. 
Attorney General, I also want to echo my colleagues in thanking 
you for your service at a very crucial time. We needed an 
Attorney General with your kind of background who would be able 
to reestablish accountability and veracity in the office. And I 
very much appreciate you being here today, also. I know it is 
late.
    One thing that has been brought to my attention by a number 
of constituents is the issue of some of the immigration raids 
that have occurred across the country. And I know that this is 
mainly the Immigration and Customs Enforcement and therefore 
falls mostly under the Department of Homeland Security's 
jurisdiction.
    However, some of these reports have been quite disturbing 
and do have aspects that might concern the Department of 
Justice. I have been told of a number of cases in which ICE 
agents have boarded buses in Syracuse, Rochester, Buffalo, and 
other upstate New York communities and targeted people based on 
their ethnicity or skin color for searches. In some cases 
agents waited outside the bus station and singled out those who 
appeared to be Hispanic. These people are often detained and 
questioned. In some some cases they are taken into custody. A 
large number of these people are legal immigrants and many 
searched and detained are citizens of the United States, 
entitled to the same constitutional protections that you or I 
are.
    Are you at all aware of this practice either occurring now 
or having occurred in the prior Administration?
    Mr. Holder. I am not aware of those specific procedures you 
have talked about. On the other hand, there is, I think, 
clearly a need for vigilance in that area, and there is also a 
need for coordination between DHS and DOJ with regard to this 
whole question of immigration enforcement.
    Too frequently in the past, I think DHS has done things 
without regard to the impact it has on Justice Department 
resources. The Justice Department has not maybe communicated as 
well with DHS as it should have. Secretary Napolitano and I 
have tried to sit down and talk about a whole variety of 
immigration issues: work site enforcement; how ICE conducts 
itself. And I think we are going to be in a better place. But 
the concerns that you raise about the procedures you mention 
are very legitimate and inappropriate.
    Mr. Maffei. Certainly that would not be the policy of this 
Administration?
    Mr. Holder. No, it would not.
    Mr. Maffei. I appreciate that answer and work with Homeland 
Security particularly in this area. If it comes to my attention 
that these raids are still occurring, how should I proceed? 
Should I get in touch with Secretary Napolitano only, or 
because of some civil rights concerns is it also under the 
auspices of the DOJ as well?
    Mr. Holder. I will leave to you, Congressman, how you 
decide to do that. But I would suggest on the basis of what you 
said in the latter part of your answer about the civil rights 
concern, that perhaps a letter that went to both of us might be 
appropriate, because I think it is the kind of thing that 
Secretary Napolitano and I would want to discuss. She and I go 
back a long ways to when we were U.S. attorneys together in the 
Clinton administration. I think it would be something that we 
probably would both want to look at at.
    Mr. Maffei. I appreciate that. I too believe that this 
Administration will be taking a very, very different approach 
in terms of tactics. I believe a more effective approach, by 
the way, both for reducing undocumented immigrants, but also 
preserving American civil liberties and also people's human 
rights.
    However, I am concerned just about bureaucratic inertia. So 
I would appreciate any help you and your office would provide 
us in the Congress as we try to help identify and let you know 
in the Administration about these instances.
    Mr. Holder. That would be fine. I look forward to working 
with you on that. I hope there will not be other instances 
along the lines that you described, but to the extent that you 
come into possession of that kind of knowledge I hope you will 
share it with me and also Secretary Napolitano.
    Mr. Maffei. Thank you. I thank you for your answers. I 
yield back the balance of my time.
    Mr. Cohen. I want to thank Mr. Attorney General for your 
courtesy and your time that you spent with us, which has been 
quite generous. And that concludes our questioning.
    Without objection, Members will have a minimum of 5 
legislative days to submit additional written questions as if 
you need such. And we would appreciate you being kind enough to 
answer those as promptly as you can. They will be made a part 
of the record.
    Without objection, the record will remain open for 5 
legislative days for the submission of any other materials.
    This has been useful in our efforts to ensure that the 
Nation's premier law enforcement agency is dedicated to being a 
shining example not only of how effectively it pursues its 
case, but equally how it respects the fundamental questions and 
issues of freedoms and law in our country. Like Caesar's wife, 
the Justice Department should be and will be beyond reproach.
    With that, this hearing is adjourned.
    [Whereupon, at 4:35 p.m., the Committee was adjourned.]



















                            A P P E N D I X

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               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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

 Prepared Statement of the Honorable Mike Quigley, a Representative in 
   Congress from the State of Illinois, and Member, Committee on the 
                               Judiciary

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Letter from the Honorable Jason Chaffetz, a Representative in Congress 
     from the State of Utah, and Member, Committee on the Judiciary

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Post-Hearing Questions submitted to the Honorable Eric Holder, 
              Attorney General, U.S. Department of Justice

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

  Response to Post-Hearing Questions from the Honorable Eric Holder, 
              Attorney General, U.S. Department of Justice

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                 
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