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