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


 
                  UNITED STATES DEPARTMENT OF JUSTICE

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

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 13, 2010

                               __________

                           Serial No. 111-136

                               __________

         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
STEVE COHEN, Tennessee               STEVE KING, Iowa
HENRY C. ``HANK'' JOHNSON, Jr.,      TRENT FRANKS, Arizona
  Georgia                            LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico         JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois               TED POE, Texas
JUDY CHU, California                 JASON CHAFFETZ, Utah
TED DEUTCH, Florida                  TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois          GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DANIEL MAFFEI, New York
JARED POLIS, Colorado

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


                            C O N T E N T S

                              ----------                              

                              MAY 13, 2010

                                                                   Page

                           OPENING STATEMENTS

The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Chairman, Committee on the 
  Judiciary......................................................     1
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Ranking Member, Committee on the Judiciary.     2
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Member, Committee on the Judiciary..     4
The Honorable Howard Coble, a Representative in Congress from the 
  State of North Carolina, and Member, Committee on the Judiciary     5
The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Member, Committee on 
  the Judiciary..................................................     5
The Honorable Daniel E. Lungren, a Representative in Congress 
  from the State of California, and Member, Committee on the 
  Judiciary......................................................     6
The Honorable Henry C. ``Hank'' Johnson, Jr., a Representative in 
  Congress from the State of Georgia, and Member, Committee on 
  the Judiciary..................................................     7
The Honorable Darrell Issa, a Representative in Congress from the 
  State of California, and Member, Committee on the Judiciary....     8
The Honorable Pedro Pierluisi, a Representative in Congress from 
  Puerto Rico, and Member, Committee on the Judiciary............     8
The Honorable Steve King, a Representative in Congress from the 
  State of Iowa, and Member, Committee on the Judiciary..........     9
The Honorable Anthony D. Weiner, a Representative in Congress 
  from the State of New York, and Member, Committee on the 
  Judiciary......................................................    10
The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, and Member, Committee on the Judiciary..    10
The Honorable Maxine Waters, a Representative in Congress from 
  the State of California, and Member, Committee on the Judiciary    11
The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Member, Committee on the Judiciary.......    13
The Honorable Steve Cohen, a Representative in Congress from the 
  State of Tennessee, and Member, Committee on the Judiciary.....    14
The Honorable Louie Gohmert, a Representative in Congress from 
  the State of Texas, and Member, Committee on the Judiciary.....    14
The Honorable Mike Quigley, a Representative in Congress from the 
  State of Illinois, and Member, Committee on the Judiciary......    15
The Honorable Jason Chaffetz, a Representative in Congress from 
  the State of Utah, and Member, Committee on the Judiciary......    16
The Honorable Judy Chu, a Representative in Congress from the 
  State of California, and Member, Committee on the Judiciary....    17
The Honorable Gregg Harper, a Representative in Congress from the 
  State of Mississippi, and Member, Committee on the Judiciary...    17
The Honorable Adam B. Schiff, a Representative in Congress from 
  the State of California, and Member, Committee on the Judiciary    18

                                WITNESS

The Honorable Eric Holder, Attorney General, U.S. Department of 
  Justice
  Oral Testimony.................................................    19
  Prepared Statement.............................................    22

                                APPENDIX
               Material Submitted for the Hearing Record

Response to Post-Hearing Questions posed to the Honorable Eric 
  Holder, Attorney General, U.S. Department of Justice...........    83


                  UNITED STATES DEPARTMENT OF JUSTICE

                              ----------                              


                         THURSDAY, MAY 13, 2010

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

    The Committee met, pursuant to notice, at 10:09 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, 
Jackson Lee, Waters, Delahunt, Cohen, Johnson, Pierluisi, 
Quigley, Chu, Deutch, Gonzalez, Weiner, Schiff, Maffei, Polis, 
Smith, Coble, Goodlatte, Lungren, Issa, King, Franks, Gohmert, 
Jordan, Poe, Chaffetz, and Harper.
    Staff Present: (Majority) Perry Apelbaum, Staff Director 
and Chief Counsel; Elliott Mincberg, Counsel; Renata Strause, 
Staff Assistant; Brandon Johns, Staff Assistant; (Minority) 
Sean McLaughlin, Chief of Staff and General Counsel; Richard 
Hertling, Senior Policy Director; Crystal Jezierski, Counsel, 
Caroline Lynch, Counsel; George Fishman, Counsel; Kimani 
Little, Counsel; Art Baker, Detailee; and Kelsey Whitlock, 
Staff Assistant.
    Mr. Conyers. We are always honored to have the chief of law 
enforcement of the United States visit with the Committee.
    I wanted to note from the outset that Attorney General 
Holder has reinvigorated the Civil Rights Division, which 
suffered for a while from low morale; and under Assistant 
Attorney General Tom Perez the Division is I think doing a good 
job in protecting the rights, including voting, of all 
Americans.
    There are several issues that I would like to raise for 
further discussion. The Attorney General has raised the issue 
of statutory modifications to the Miranda public safety 
exception into the national debate. I would hope that he can go 
into this in some detail.
    Now the most important thing to me that we are dealing with 
in this country right now is the failure of the so-called war 
against drugs. We have spent more money incarcerating more 
nonviolent people under an antiquated mandatory minimum 
sentence to less and less effect. A million and a half people 
are arrested every year for drug violations. We spend $2 
billion a year to imprison people who violate Federal drug 
laws. We incarcerate more people than any other nation on the 
planet Earth, but the drug use in the U.S. and around the world 
is more prevalent than ever.
    If there is one thing that we could accomplish successfully 
between now and the next time the Committee meets with the 
chief law enforcement officer of the country is that we get on 
top of the drug problem.
    Now, one and a half years after the executive order of 
President Obama, we have still not closed the prison at 
Guantanamo. The plan to try Khalid Sheikh Mohammed and other 9/
11 conspirators in the Federal Court in New York has been 
derailed. No institution that I know of is better equipped to 
show the world how America deals with miscreants than this 
Federal Court where the trial was originally intended to occur. 
I hope these plans can be put back on track.
    Now the Administration has taken some steps to curb the 
misuse of the state secrets privilege. While the Justice 
Department has issued new guidelines, the privilege continues 
to be overused, and I think that the need for uniform and 
consistent handling by the Court still remains.
    It is true, and I commend the Administration, for ending 
the practice of secret prisons and calling a halt to water 
boarding and enhanced interrogation techniques. These actions 
tarnish the Nation's reputation as a beacon of liberty and 
served as a recruiting tool for our enemies.
    The Attorney General has released rejected torture memos 
and brought a much-needed attitude of transparency to the 
Department which has helped us understand the workings of the 
Office of Legal Counsel which had issued secret opinions that 
may have helped to insulate those responsible for torture and 
inhumane treatment from legal accountability; and the Attorney 
General has also directed an independent review of possible 
crimes relating to interrogation and torture.
    Clearly, there was, as usual, pressure on all sides within 
and without the Administration to ignore the past and move on, 
but, to his credit, he came down in favor of the rule of law 
and accountability. And so, after almost a year and a half, we 
are moving beyond the past, and we are trying to deal with the 
present and also work on the future as well.
    So I join every man and woman on this Committee and welcome 
you and look forward to the discussion that we will have.
    I turn now to Lamar Smith, the Ranking Member of this 
Committee.
    Mr. Smith. Thank you, Mr. Chairman. Welcome, Mr. Attorney 
General.
    Mr. Attorney General, in the last year, three serious 
terrorist attempts, one of which was successful, have occurred 
in the United States. Army Major Nidal Hasan went on a shooting 
rampage at Fort Hood, Texas, killing 14 innocent Americans and 
wounding 30 others. Umar Farouk Abdulmutallab boarded a plane 
headed for Detroit with explosives hidden under his clothes. 
His attack was thwarted by a poorly made bomb and alert 
passengers. And Faisal Shahzad, a naturalized citizen, parked a 
car loaded with explosives in New York City's Times Square. 
This attack was stymied by his ineptness and alert pedestrians.
    Our national security policy should consist of more than 
just dumb bombers and smart citizens, because, sooner or later, 
a terrorist is going to build a bomb that works.
    As Commander-in-Chief, the President is responsible for 
protecting the American people. Unfortunately, several of this 
Administration's policies have put Americans at greater risk.
    First, the President's campaign promise to close the 
terrorist detention center at Guantanamo Bay, Gitmo, has not 
reduced the threat of terrorism. In fact, those transferred to 
other countries can be and are released; and former Gitmo 
detainees often return to terrorism.
    Second, trying Gitmo terrorists in civilian courts is a 
dangerous proposal that has no legal precedent. Once in the 
U.S., terrorists can argue for additional constitutional 
rights, making it harder for prosecutors to obtain convictions.
    Third, treating terrorists like common criminals makes 
Americans less safe. Giving terrorists the right to remain 
silent limits our ability to interrogate them and obtain 
intelligence that could prevent attacks and save lives.
    According to news reports, Mr. Attorney General, you 
recently said that you now want to work with Congress to limit 
terrorists' Miranda rights. That is surprising, since it is 
this Administration that has insisted on extending 
constitutional rights to terrorists in the first place. If the 
Administration treated terrorists like enemy combatants and 
tried them in military commissions at Guantanamo Bay Detention 
Center, they wouldn't need to be read a Miranda warning.
    Fourth, the Obama administration's opposition to REAL ID 
weakens national security. The Administration wants to repeal 
the law which was enacted after 9/11 to prevent terrorists from 
obtaining legitimate forms of identification. This would give 
terrorists cover to plot and carry out attacks inside the 
United States.
    And, fifth, the Administration's push for amnesty for 
illegal immigrants makes America less safe. The arrest of the 
Times Square bomber, a recently naturalized citizen, is another 
reason why we must reject proposals to give amnesty to millions 
of illegal immigrants. If we can't detect a potential terrorist 
who submits himself to our security process as Shahzad did, how 
can we identify other potential terrorists who will apply for 
amnesty? Amnesty could legalize many would-be terrorists who 
are already in the U.S. and give them cover to plot attacks 
against innocent Americans.
    It makes no sense to deny the link between immigration 
enforcement and national security. If we want to prevent 
attacks, we need to keep terrorists from getting visas and stop 
them from coming to the U.S. and obtaining citizenship. That 
means enforcing our immigration laws. If we don't enforce our 
immigration laws, terrorists are not slipping through the 
cracks, they are coming through the front door.
    Success in the war on terror means preventing attacks, not 
just responding to attempts. The goal is to detect and to 
deter, not just make arrests after the bomb is set.
    But to achieve this goal we need to improve our 
intelligence gathering by interrogating terrorists, not reading 
them their Miranda warnings. We need to end the failed policy 
of releasing terrorists overseas, and we need to prevent 
terrorists from using our immigration system to enter or stay 
in the U.S.
    Thank you, Mr. Chairman. I will yield back.
    Mr. Conyers. Thank you.
    Chair Nadler, Chairman of the Subcommittee on the 
Constitution.
    Mr. Nadler. Thank you, Mr. Chairman.
    I want to welcome the Attorney General back to the 
Committee.
    The work of the Department of Justice touches on some of 
the most important matters of life in this Nation, from 
fighting crime and terrorism to vindicating of fundamental 
rights. We ask a lot of the Department of Justice, and we 
expect a lot.
    I want to commend you, to begin with, for recognizing the 
success that we have had in prosecuting terror suspects in 
Article III courts. We all want to bring terrorists to justice, 
and our criminal justice system has been an effective tool in 
doing so.
    Until the recent change in the Administration, that didn't 
seem to bother my friends on the other side of the aisle. 
During the Bush years, there were no attempts to tie law 
enforcement's hand, no opposition to bringing them to trial, no 
complaints about sending terrorists to jail, no complaints 
about reading them their Miranda warnings so that we can 
prosecute them successfully.
    I hope to hear from you today about the Department's 
continued use of the state secrets privilege in particular. As 
you know, I have introduced legislation, along with the 
Chairman and some others, to formalize and regulate the 
treatment of the privilege in court in a matter that will both 
protect bona fide state secrets and that will ensure that 
individual rights can get vindicated in our courts.
    In order for the rule of law to have any meaning, 
individual liberties and rights must be enforceable in our 
courts. There is an ancient maxim in law that there is no right 
without a remedy; and if the Government violates someone's 
rights, if it wiretaps your phone without a warrant, if it 
ransacks your house and steals your guns or your papers, if it 
invades and ransacks your house, if it kidnaps and tortures 
you, your only remedy, the only way you have to make the rights 
guaranteed you in the Bill of Rights, the Second or the Fourth 
or the Fifth Amendments, real is to sue the government for an 
injunction to stop the action or for damages after the fact.
    But if the executive can have any case dismissed on the 
mere incantation of the magic phrase ``state secrets'' without 
having to prove to a court that the concerns about revelation 
of sensitive national security information are real and not 
simply an excuse to shield embarrassing or illegal acts or 
information, then we have no remedy and no rights, and the 
executive can get away with anything, regardless of anything 
the laws of the Constitution may say, and no one will ever be 
the wiser. There can be no law, no rights, and no liberty if 
the executive can do anything it wants behind an impenetrable 
wall of secrecy.
    I'm aware and I appreciate that this Administration has 
adopted some rules for the exercise of the privilege, but those 
rules still reserve unaccountable discretion to the executive 
without any meaningful judicial review. The guidelines still 
violate the observation by the 9th Circuit in the Jepson case 
that ``the executive cannot be its own judge.'' That is the 
key.
    I will submit the balance of my statement for the record.*
---------------------------------------------------------------------------
    *The information referred to was not received by the Committee at 
the time of the printing of this hearing.
---------------------------------------------------------------------------
    Mr. Conyers. Thank you very much.
    The Chair recognizes the senior Member of the Judiciary 
Committee, Howard Coble of North Carolina.
    Mr. Coble. Thank you, Mr. Chairman.
    General, it is good to have you back on the Hill.
    General, the alarm that was created by the Administration's 
announcement that it was planning to prosecute detainees from 
Gitmo in a New York Federal Court was astounding. I'm relieved, 
however, to hear that this plan has been scrapped, at least 
temporarily. But it appears that there may be some thinking, 
General, in the Department that the criminal justice system is 
well suited to prosecute terrorism suspects effectively and 
efficiently; and if that is the rule of thumb, I disagree with 
that.
    Criminal trials give terrorists the upper hand, in my 
opinion, General. They are not ordinary citizens and will use 
our civil rights to undermine our laws.
    Secondly, trials are lengthy and expensive. Why should our 
citizens pay for additional rights for terrorism suspects?
    And, finally, criminal trials are open to the public and 
will undoubtedly achieve one of the terrorists' main 
objectives, and that is to promote their cause against our 
country.
    With regard to the war on terror, Mr. Chairman, I have been 
balanced. I have supported the dispatching of troops to Iraq, 
but I subsequently became critical of the Bush administration 
for what appeared to have been a failure to formulate a post-
entry strategy.
    I support the rule of law and heartily support it. But 
simply to say that I'm an advocate for the rule of law, 
therefore, terrorists deserve criminal trials in Federal courts 
is simply illogical. The notion that transferring detainees to 
another facility in Illinois, which at one time was discussed, 
General, I think that is equally illogical.
    Meanwhile, I'm advised, General and Mr. Chairman, that 
detainees who have been released would oftentimes return to the 
battlefield to fight our troops, and that is frustrating at 
best and infuriating at worst.
    General, these are some issues that bother me, that trouble 
me, and perhaps some illumination can be forthcoming today. 
Again, good to have you here.
    Thank you, Mr. Chairman. I yield back.
    Mr. Conyers. The Chairman of the Subcommittee on Crime, 
Bobby Scott of Virginia.
    Mr. Scott. Thank you, Mr. Chairman; and thank you, Attorney 
General, for being with us today.
    We have been dealing with violent crime for juveniles in 
such a way that we have ended up generally codifying slogans 
and sound bites to the point where we now lock out more people 
in the United States than anywhere on Earth by far. The Pew 
Research Center has suggested that we are locking so many 
people up that it is actually counterproductive. We are 
injecting more social pathology into the communities than we 
are solving.
    That is why I'm pleased to be working with you on the Youth 
Promise Act and the Second Chance Act. We had a hearing 
yesterday where Texas showed that by investing in prevention 
and early intervention programs they are in the process of 
saving hundreds of millions of dollars because they won't have 
to build prisons that were previously on the agenda. So I 
appreciate working with you on that.
    There are a lot of things we can do without changing the 
Criminal Code in terms of resources. Many across the country, 
DNA rape kits have not been analyzed, have not been included in 
the DNA system. We could solve a lot of crimes if we would 
invest the money into rape kits. And financial crimes, 
especially identity theft and credit card fraud, could also be 
solved with more resources. And I would be interested in what 
you have asked for in terms of resources on that level.
    There is an Office of Legal Counsel memo dated June 29, 
2007, that interpreted the Religious Freedom Restoration Act of 
1993 as providing a blanket override of statutory 
nondiscrimination provisions; and I would be interested in 
knowing the status of that.
    And, finally, I'm looking forward to your comment on the 
terrorism trials and commenting on how the civilian courts 
actually provide longer and more certain sentences than the 
military tribunals that have been plagued with constitutional 
complications and been overridden in several court decisions 
and how we are actually better off and more secure by using the 
civilian criminal courts.
    Thank you, Mr. Chairman; and I yield back.
    Mr. Conyers. Former Attorney General of California and 
distinguished Member of the Committee, Dan Lungren.
    Mr. Lungren. Thank you very much, Mr. Chairman.
    Mr. Attorney General, when we get time to ask questions, I 
hope to ask you questions about the clash between Mirandaizing 
terror suspects and our ability to gain information that is 
necessary. But something that the Chairman said caused me 
pause, and that is he said that we need to use our civilian 
criminal justice system in order to deal with miscreants. 
Miscreant, definition, is an evildoer, a villain, an infidel, 
or a heretic. Now that may describe the kind of individuals who 
are involved, but it doesn't help us in terms of our legal 
analysis of how we deal with these people.
    And, Mr. Attorney General, I am concerned that we treat 
people in these regards more as criminal suspects than as what 
they truly are, which are illegal or unlawful enemy combatants. 
And I hope to ask you about the difference in treatment of 
Faisal Shahzad and the December bomber in terms of the amount 
of time that was given toward interrogating them to seek 
information that would potentially save this country before 
either one of them was given Miranda. The disparate treatment 
suggests to me that there has been a different policy by your 
Justice Department, and I would like to find out what that is.
    The suggestion that your Department is going to bring 
forward legislation to in some ways amend Miranda brings up an 
entire host of issues. That is, what is the capacity of the 
Congress to change statutorily that which is a rule that has 
been imposed under constitutional obligations by the Congress? 
And, further, with that limitation, does it make more sense for 
us to deal with this in an entirely different vein, that is, 
recognizing we are at war, we are dealing with someone who has 
been captured on the battlefield, as it has been extended by 
reality, and whether or not that would be in the greater 
protection of the American people?
    Thank you very much, Mr. Chairman.
    Mr. Conyers. Thank you.
    The Chairman of the Subcommittee on Courts, Magistrate Hank 
Johnson from Georgia.
    Mr. Johnson. Thank you, Mr. Chairman, for holding this 
hearing today; and I appreciate your efforts in ensuring that 
Members of this Committee have these opportunities to conduct 
oversight of the Justice Department.
    General Holder, I welcome you; and I thank you for making 
yourself accessible so that we can engage in one of our most 
important responsibilities and that is oversight of the Justice 
Department.
    Congressional oversight is a key component of the system of 
checks and balances. While you have been Attorney General, the 
Justice Department has done many things well; and you should be 
applauded. Most importantly, you have taken steps to 
depoliticize the Department; and, to a notable degree, you have 
restored public confidence in the ability of the Department to 
fulfill its mandate, which is equal justice for all.
    We still have a ways to go in removing the strain--or the 
stain left by the previous Administration on the operations of 
your Department, however; and I look forward to working with 
you to do just that.
    The Justice Department has renewed its commitment to local 
law enforcement, also; and that has resulted in putting more 
officers on the street, which has made our communities safer. 
This has helped local communities attract business and spur 
economic development.
    I thank the Department for its commitment to the Byrne 
Justice Grant Program and the COPS Hiring Recovery Program, 
which are vital sources of funding for police departments.
    Further, the Justice Department has fought tirelessly to 
combat terrorism. The attempted Christmas Day bombing on a 
Northwest Airlines flight and the FBI's interception of a 
recent plan to attack the New York subway system reminds us of 
the constant struggle against those who wish to harm Americans. 
In that regard, I'm eager to hear what the Justice Department 
may propose in the way of legislative changes regarding the 
public safety exception to the Miranda warnings. Being a 
staunch advocate for the preservation of constitutional rights, 
I will be looking carefully at that.
    In addition, I want to thank you for revitalizing the 
Antitrust Division. You have made it clear that the antitrust 
laws are going to be enforced, and this means improved 
competition and real price protection for consumers. As Chair 
of the Subcommittee on Courts and Competition Policy, I'm 
grateful for your focus on antitrust issues.
    General Holder, I look forward to hearing your testimony 
today, and I appreciate the Justice Department's efforts in 
protecting the safety and constitutional rights and resources 
of the American people.
    I yield back the balance of my time.
    Mr. Conyers. Darrell Issa, Ranking Member on the Oversight 
Committee and the person who may hold more copyrights than 
anybody on this Committee, except perhaps our newest Member, 
Jared Polis.
    Mr. Issa. Thank you, Mr. Chairman; and, Jared, welcome. We 
now have two nonlawyers who are, in fact, holders of the 
Entrepreneur of the Year award. So I would say that we 
definitely have the edge over all these guys with law degrees 
now.
    General Holder, I believe that members of the 
Administration should never be surprised when they come to 
hearings, nor do they often walk away happy that it was an easy 
experience. Today I expect will be no exception.
    On April 21, I wrote to you about a serious allegation of 
multiple crimes. Under title 18 of the U.S. Code, section 211, 
which deals with bribery of public officials; section 595, 
which prohibits interference by government employees into 
nominations or elections of candidates for office; and section 
600, which deals with corrupt government officials who use 
Federal jobs for political purposes, General Holder, I will be 
asking you, and hopefully you have brought all the people 
necessary to answer a series of questions.
    First of all, do you recognize these as felonies?
    Second of all, when those allegations come and are repeated 
by a Member of this body, a United States Congressman, a former 
Navy admiral, and when the White House has not denied these 
claims but rather says, and I quote, ``I have talked with 
several people in the White House. I have talked with people 
who have talked to others in the White House. I am told that 
whatever conversations have been had are not problematic. I 
think Congressman Sestak has discussed that--this is whatever 
happened is in the past and he is focused on the primary 
election.''
    So I will be asking you a series of questions in order to 
find out whether these allegations of multiple felonies 
asserted against the White House are worth appointing a special 
prosecutor; and why since February when these were first 
alleged and through this series of many months we have seen no 
witnesses questioned and the White House allowed to simply say 
that, in the opinion of a nonattorney, a press secretary, that 
these were not problematic.
    Mr. Conyers. Thank you very much.
    Mr. Issa. I yield back.
    Mr. Conyers. The Chair recognizes Pedro Pierluisi of Puerto 
Rico, a former Attorney General of that nation.
    Mr. Pierluisi. Thank you, Mr. Chairman; and thank you, Mr. 
Attorney General, for testifying before this Committee today.
    In the brief time that I have, I would like to focus your 
attention on the Department's drug control policy. As you know, 
in recent years, drug courts and other problem-solving courts 
have reduced the rate of recidivism among substance-abusing 
offenders by providing intensive treatment and supervision in 
lieu of incarceration. By lowering rearrest rates, drug courts 
save taxpayers considerable money. In fact, for every dollar 
invested in a drug court, taxpayers save roughly three times 
that amount.
    Despite the successes these courts have enjoyed at the 
State level, in the Federal system drug courts have been 
implemented in less than one-third of Federal judicial 
districts.
    I understand the Department of Justice is conducting an 
across-the-board review of Federal sentencing policy. I urge 
you to look seriously at the role that drug courts can play at 
the Federal level, both as an alternative to incarceration for 
nonviolent offenders and as a reentry court for offenders who 
have just completed a prison term. We in Congress must do more 
to support drug courts, and I am drafting legislation that 
would provide a dedicated stream of funding for Federal drug 
courts.
    Now, finally, I have to say that I look forward to hearing 
from you regarding this new Arizona immigration law which I 
find offensive to all Hispanics in America, including the 
millions of U.S. citizens and legal residents of Hispanic 
origin that we have in this country. So I hope you address that 
subject matter as well during the course of your testimony.
    Thank you very much, Attorney General and Chairman, for 
yielding this time to me.
    Mr. Conyers. The distinguished gentleman from Iowa, Ranking 
Member of Immigration Subcommittee, Steve King.
    Mr. King. Thank you, Mr. Chairman; and thank you, General 
Holder, for coming here today.
    I would echo some of the remarks that Mr. Issa made about 
the experience of testifying here. We understand that there are 
certainly political messages going back and forth, 
constitutional statutory messages and public policy messages 
going back and forth here today. Most of us will engage in 
that.
    I have some concerns that I want to voice, a concern about 
the focus of the Department of Justice on the opposite side of 
the gentleman from Puerto Rico in that, as I look at the 
Arizona immigration law, it appears to me to be a mirror and a 
reflection of Federal law. I am concerned that we would have 
Federal resources that would be apparently directed by the 
White House itself to use the Justice Department to examine the 
Arizona immigration law for its constitutionality or any 
potential violation of Federal statute. I'm concerned that we 
might have those resources at the direction of the President, 
and I know we will hear how independent the Justice Department 
is, at the same time that we can't find a single dollar or 
individual resources to examine ACORN, which has been all over 
the news for months and pervasive in their negative influence 
on elections and many other areas.
    So I'm looking forward to getting into those subjects a 
little more deeply; and I will want to hear from you as to your 
view on Arizona immigration law, the look into the alleged 
civil rights violations of the sheriff of Maricopa County and 
the intense focus of the Justice Department on that.
    Other subjects that do come to mind would be the 
cancellation of I think the most open-and-shut voter 
intimidation case in history and the direction of the Justice 
Department to cancel the results of a legitimate referendum to 
remove the political party and have local nonpartisan elections 
in Kinston, North Carolina. Those things seem to run contrary 
to the justice that I think that you are pledged to support, 
and I intend to bring up some of those subject matters.
    But I very much appreciate being here today, and this is a 
very good exercise for our constitutional republic.
    I would yield back the balance of my time. Thank you, Mr. 
Chairman.
    Mr. Conyers. Anthony Weiner of New York, Crime 
Subcommittee.
    Mr. Weiner. Thank you, Mr. Chairman. Mr. Attorney General, 
welcome.
    I don't believe there is a Republican or Democratic way to 
do your job. I don't believe there is a conservative or liberal 
way to do it. I believe that law enforcement should transcend 
politics. That has led me to support you in your decision to 
hold the trial of Khalid Sheikh Mohammed in the Southern 
District where we have perhaps the best prosecutors anywhere in 
the world, the most experienced in prosecuting terrorism cases, 
judges, court officers who know their business; and I frankly 
think that, sooner or later, you should stop the Kabuki dance 
and tell us where that trial is going to be held. And I think 
if you make a good case and you sell it and you get the facts 
out there it will be supported.
    But I have to tell you, as the chief law enforcement 
officer of this country, some of the funding decisions made by 
this Administration have been mind-numbingly, insanely wrong.
    First, we see that the COPS funding--something that, as you 
know, I fought very hard for to get included in the stimulus 
bill--denied the New York City Police Department its 
application; and, when it did, it said we are going to limit it 
to 50 police officers. Essentially saying that the notion of 
the 5 percent cap and more, that a city like New York should 
not get what it asked for, it should get some miniscule number, 
if any.
    And then yesterday we find the Department of Homeland 
Security proposes a 35 percent cut in transit funds; a 3 
percent cut in Port Authority funds; total transit funding, a 
30 percent cut; a 25 percent cut in port security. You know, I 
have to tell you that, while you might not be the Secretary of 
Homeland Security, I would be shocked if anyone who watched 
your press conference after the attempt on Times Square would 
come back and propose these things.
    I think there is something to be said for the idea that if 
you are going to say we need more boots on the ground you have 
to realize that in New York City today we have fewer police 
officers than September 11. You have to realize the COPS 
program which someone like me who has fought very hard to get 
is not necessarily only for towns that don't have minor league 
baseball teams. Big cities like New York that are targets have 
to get the resources they need. And I would urge you to tell 
your colleagues within the Administration that when it comes to 
COPS, these types of funding, you have to give us the resources 
to do our job so that when you hold your trials we can make 
sure that they are safe.
    And I yield back the balance of my time.
    Mr. Conyers. Bob Goodlatte of Virginia, distinguished 
senior Member of the Committee.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    Attorney General Holder, we are delighted to have you here 
today. You will hear many different perspectives, I think, on 
what we should do with terrorists and where they should be 
tried. I don't believe it should be in New York City, and I 
don't think it should be in our civilian courts. But I'm most 
in agreement with the gentleman from New York in wanting to 
know your perspective on that and to remind my colleagues that 
the Supreme Court's Miranda decision does not apply in the 
context of a trial by a military commission because military 
commissions try people for violations of the laws of war, and 
Miranda warnings are only required when a defendant is tried in 
civilian courts.
    And as the Supreme Court explained in the 1942 case of Ex 
Parte Quirin, the Fifth Amendment does not apply to unlawful 
enemy combatants who are at war with the U.S., and I would hope 
that the Attorney General and our current Justice Department 
would uphold that and honor that Supreme Court decision.
    The Quirin case involved a group of saboteurs who were 
landed by German U-boats on American beaches. Their assignment 
from the German military authority was to destroy domestic 
military targets and war production facilities. All of the 
saboteurs were Germans except one, Haupt, who was a naturalized 
U.S. citizen. After they were captured by the FBI, the 
saboteurs were placed in military custody and tried by a 
military commission. The commission found them all guilty and 
sentenced all but two of them to death.
    They then challenged the authority of the military 
tribunal, and the tribunal's denial to them during the 
proceedings of their constitutional rights afforded domestic 
criminals by the Fifth and Sixth Amendments. Their arguments 
were rejected by the Court. As the Court explained, those who 
take up arms against the United States are designated as enemy 
combatants, and enemy combatants can be lawful or unlawful, and 
if the latter they can be dealt with by the military courts.
    The Supreme Court upheld the military commission's 
authority, concluding that the President, as Commander-in-
Chief, has the power to seize and subject to disciplinary 
measures those enemies who in their attempts to thwart or 
impede our military effort have violated the law of war.
    Today terrorists, just like the plain-clothed Nazi 
saboteurs in Ex Parte Quirin, are considered unlawful enemy 
combatants because they fight in disguise without uniforms, and 
under Quirin they can be detained and tried by military 
tribunals.
    Finally, the Court in Quirin rejected Haupt's claim of 
constitutional rights by virtue of his American citizenship. 
The Court held that American citizenship does not relieve him 
from the consequences of a belligerency which is unlawful 
because in violation of the law of war.
    I would very much appreciate hearing your views on that 
when the appropriate time comes. Thank you for joining us 
today.
    Thank you, Mr. Chairman.
    Mr. Conyers. Distinguished Member of the Committee, Maxine 
Waters, Los Angeles, California.
    Ms. Waters. Thank you very much, Mr. Chairman, for 
scheduling today's oversight hearing for the Department of 
Justice. I am very pleased to have the Attorney General join us 
today, and I have a number of concerns that I would like to 
bring to his attention.
    In the limited time that I have this morning, I would like 
to discuss a few issues with you, Mr. Attorney General, and 
then submit additional questions in writing so you and your 
staff can provide additional information.
    First, I have been concerned with the lack of diversity 
reflected within the Department of Justice and throughout the 
judicial system. I'm especially concerned about the FBI and all 
of the discrimination complaints that have been filed in that 
division and want to know exactly what is happening with the 
backlog that they had at one time and what you are doing to 
correct some of the problems of that division.
    I would also like to know what actions this Administration 
has taken to ensure that the Department of Justice and all of 
its internal agencies and divisions more closely reflect the 
diversity of this country.
    As you are aware, many of the disparities that exist within 
our Justice Department can be linked to the agents, 
prosecutors, and attorneys that enforce the law. Since our laws 
afford judges, lawyers, prosecutors, and Federal agencies a 
great deal of discretion, it is critically important that 
diversity is counted among the Department of Justice's goals in 
hiring and recruiting Federal agents, attorneys, and staff.
    I know that many people will often cite the Attaran 
decision in order to diminish the efforts or authority of the 
Federal Government to provide opportunities for a diverse 
candidate pool. However, I strongly believe that it is within 
our national interest that individuals charged with enforcing 
the law include people from diverse communities and 
backgrounds.
    Secondly, today I would like to express my concerns with 
the Department of Justice review of the proposed Comcast-NBC 
merger. Over the past 20 years, our Federal antitrust laws have 
been so eroded that many believe that our regulatory agencies 
will simply rubber stamp any large transaction that comes 
before them. Corporations and institutions do not become too 
big too fail overnight. At some point, there is a failure of 
oversight.
    I just heard someone commend you for the changes that you 
had made, but I'm not aware of them, and maybe you can talk a 
little bit about that today.
    Moreover, many legal experts argue that the guiding 
principles that have historically framed the Department of 
Justice merger review proceedings are obsolete and there is no 
real way for the American public to gauge how the Department of 
Justice will review transactions such as the Comcast-NBC 
merger. In fact, many industry insiders believe that, 
ultimately, the DOJ and FCC will uphold this merger without 
fully considering the public interest.
    Comcast Corporation is already airing commercial 
advertisings giving the impression that its merger with NBC 
Universal is a done deal, and you need to know that we did get 
the cooperation of the FCC to extend the comment period, and 
now we are organizing, and about 60 Members of Congress have 
signed a petition to get public hearings. And I hope that 
before DOJ makes its decision that they would ask the FCC if, 
in fact, they are going to hold those hearing and you have the 
benefit of that information.
    Therefore, to the extent you are able to discuss, I would 
like to hear from you about what this DOJ is doing to ensure 
that Federal anti-trust principles are respected within current 
and future merger reviews.
    And, more broadly, I would like to know if the Department 
of Justice is or intends to take a look at some of the current 
antitrust exemptions that are on the books, such as the Sports 
Broadcasting Act, which has enabled organizations like the 
National Football League to make billions of dollars while 
functioning as a nonprofit, exempt organization.
    Therefore, I look forward to asking you questions and 
continuing to communicate my concerns to you in these and other 
areas.
    I yield back.
    Mr. Conyers. Mr. Trent Franks of Arizona, Ranking Member on 
the Administrative Law Subcommittee.
    Mr. Franks. Well, thank you, Mr. Chairman. Thank you for 
holding this Committee hearing.
    And, General Holder, I would start by saying that I know 
that it is a very difficult job that you are in and that trying 
to secure this country in a myriad of different ways is not an 
easy job.
    With that said, I am very concerned about the seeming 
subordination of some of the critical protections of Americans 
to the political correctness that seems to be exhibited by this 
Administration. We have all heard about the security apparatus, 
how it failed on Christmas Day when a Muslim militant failed in 
his attempt to carry out Jihad by bombing an airliner. Having 
some familiarity with certain types of explosives, the type 
this gentleman was using could have been devastating.
    And then, of course, we learned about the attempted New 
York Times Square bombing; and the type of weapon there used, 
it occurs to me, looked like it was an attempt to construct a 
fuel bomb weapon, which instead of just blowing the fuel in a 
fireball was to blow the fuel into the air and then ignite it. 
And we use fuel bombs, as you know, in the military apparatus 
that are some of the most powerful yield conventional weapons 
that we have. And if that had been successful I think hundreds 
would have died.
    In both of these cases, it was the incompetence of our 
enemies that saved us, rather than the competency of our 
policies. And, again, it occurs to me that the political 
correctness in the aftermath and even prior was a consideration 
that we should look at far more carefully.
    Now the disturbing part of this trend, of course, is that 
once in a while terrorists find a modicum of competence, as in 
the case of Major Hasan at Fort Hood. But Major Hasan 
advertised his tendencies with everything but a flashing neon 
sign, and yet this Administration failed to recognize it.
    The militant Muslim cleric Awlaki was communicating with 
Major Hasan at the time and has taken to taunting this 
Administration. He said of Mr. Obama, ``His Administration 
tried to portray the operation of brother Nidal Hasan as an 
individual act of violence by an individual. The Administration 
practiced the control on the leak of information concerning the 
operation in order to cushion the reaction of the American 
public.''
    This seems, again, another example of this Administration 
failing to protect the people in the greater emphasis on the 
political correctness and once again in the name of political 
correctness which has, in this case, become deadly in the most 
literal sense of the word. We face an ongoing challenge here 
that I believe that this Administration needs to face head on.
    One of the ancient generals, Sun-Tzu, said, If we cannot 
identify the enemy honestly and accurately, we cannot defeat 
them. The muzzle of political correctness that this 
Administration has used has kept us from identifying our enemy.
    I was disappointed last month to see Mr. Obama announce 
that words like ``Islamic radicalism'' and ``Jihad'' will now 
be prohibited in the national security strategy lexicon. And I 
know the Department of Justice is just one part of this 
Nation's security apparatus, but it is a critical part. The 
performance of the Department over these several months of the 
Administration, the year and a half, has not instilled 
confidence in this country; and there seems to be no strategic 
approach to fighting terrorism or even an ability or a 
willingness to identify the enemy.
    So I'm pleased, Mr. General, that you have shown up for the 
hearing and look forward to hearing what this Administration's 
strategic plan is to defend this Nation from terrorism.
    Thank you, Mr. Chairman.
    Mr. Conyers. Steve Cohen, Chairman of the Subcommittee on 
Administrative Law, Tennessee.
    Mr. Cohen. Thank you, Mr. Chairman; and thank you, General 
Holder, for appearing, as I know you would.
    I just want to thank you for the job you are doing for 
helping bring the Justice Department into the 21st century; and 
I would like to ask you to specifically look, and I know you 
would, at the bill that Senator Webb has introduced to do a 
review of our criminal sentencing and our criminal laws.
    I was with Chairman Conyers last night at the leadership 
conference where Senator Leahy was honored as well as Harry 
Belafonte. And Mr. Belafonte commented on the 2 million or so 
people who are incarcerated, many of whom should not be--in his 
opinion and in my opinion as well--incarcerated because many of 
those people's presence in jail is a reflection on the failure 
of our system to educate, to prepare for jobs, and to provide 
jobs over the years.
    A system of warehousing and criminalizing, incarcerating 
individuals for terms beyond what is necessary is injurious to 
the country and to the country's soul and to its morality. And 
I know that you will give a close look at all of our laws, 
particularly victimless laws, where our laws really there is a 
cultural lag and they reflect more of an attitude that was 30 
or 40 years ago which time has shown us is incorrect and is 
unjust.
    Thank you, sir; and I yield back the balance of my time.
    Mr. Conyers. Judge Louie Gohmert of Texas, Ranking Member 
on the Crime Subcommittee.
    Mr. Gohmert. Thank you, Mr. Chairman.
    General Holder, you must be sitting there thinking, what is 
going on? You probably have never seen this many opening 
statements. I haven't. You probably came over expecting to get 
grilled, and everybody is making a statement, and you are 
getting a pass.
    The dynamics are these. We are expecting to vote shortly, 
and most everybody here knows if we don't take an opening 
statement, we don't get to address things to you directly. So 
let me just say I don't believe in ambush, and I will send a 
letter asking these, because I doubt I will have the chance to 
ask.
    But one of the things I have been curious about in this 
discussion about potential terrorists on our soil was the 
Military Commissions Act of 2006 addressed these as enemy 
combatants. For some reason, somebody felt like that just was 
too offensive and requested a change to--and the law has now 
been changed. We no longer have enemy combatants, as you know. 
It is ``alien unprivileged enemy belligerents,'' and I'm just 
curious if somebody at Justice knows how that helps fight the 
war on terror, to change the name.
    Also, I appreciate your coming. It is a great thing. I know 
when the Nixon administration claimed executive privilege, 
people were properly outraged. But when a Committee here asks 
for the social secretary to find out about how the Salahis got 
into the Christmas party inappropriately, we were told that the 
social secretary would not be allowed to testify, and I'm 
curious about what kind of executive privilege or what that was 
and if that advice came from your Department.
    Also, I'm not mentioning some of the things that had been 
mentioned by others that are concerns, but we previously had 
the testimony of the Civil Rights Division Chief Perez, and he 
was indicating things, requirements that seemed different from 
what 1965 Attorney General Nicholas Katzenbach testified 
regarding requirements to prove this kind of voter intimidation 
which was captured on video that a civil rights era marcher 
advocate said was the worst voter intimidation he had ever 
seen.
    I'm still concerned why that wasn't pursued more 
vigorously. Chief Perez kept saying that he was going to look 
forward to the report by the Office of Professional 
Responsibility, and it should never have gotten to that. It 
should have been pursued.
    And, also, the other area that I will ask for your 
assistance on--and it is a bipartisan issue--we have nearly 
5,000 criminal statutes. We have got people going to jail, not 
necessarily under Justice, EPA, different, for violations that 
nobody in this room ever knew were even violations. And we have 
got to do some kind of job of cleaning up this 
overcriminalization where Congress slaps on a criminal penalty 
to send people to jail, people outside of Justice and 
departments outside look forward to getting a badge and a gun 
and a siren, and I look forward to your advice on how we can 
work together to clean that situation up.
    But thank you for your appearance here today.
    Mr. Conyers. Attorney Mike Quigley, Chicago, Illinois.
    Mr. Quigley. Thank you, Mr. Chairman.
    I welcome the Attorney General as well as our two new 
Members of the Committee.
    I'm here a year now, and while it doesn't make me a wily 
veteran, it does occasionally make me feel like Bill Murray in 
the movie Groundhog Day, because the opening statements sound 
like the opening statements from last year. And, obviously, the 
arguments and the issues and the problems we face are similar 
to last year. What is always troubling is the fact that 
sometimes we don't get to the root causes again and again and 
again, and we are facing the same day over and over again.
    And just by example, I would point out my colleagues have 
talked about international terrorists, domestic terrorists, 
Mexican drug trafficking cartels. And, to me, one of the root 
causes of the problems with that, or certainly the issues that 
exacerbate, are the issue I brought up last year, which is the 
gun show loopholes which Mayor Bloomberg in an amazing study 
brought out this year pointed out that the majority of people 
in their study who were able to obtain guns in gun shows could 
not have passed background checks, which is extraordinary 
because we see now that gun shows are linked to the Pentagon 
shooting, to shootings at Columbine, to international 
terrorists, to domestic terrorists, and, of course, to Mexican 
drug trafficking cartels.
    So I know there are those who live in fear of not having a 
100 percent voting record with the NRA, but it does seem there 
are commonsense attempts to tie rationale loopholes so we 
aren't arming domestic or international terrorists and that we 
are not putting ourselves at risk.
    And I know, Mr. Holder, you discussed assault weapons in 
February of last year. I know it is a difficult time to raise 
those issues. But we are reminded that, as Secretary Clinton 
said, the majority of the assault weapons used in the Mexican 
drug cartel fights are brought in from the United States.
    So I hope we can address those issues. Otherwise, I'm just 
going to save this presentation for next year.
    Thank you.
    Mr. Conyers. Mr. Jason Chaffetz of Utah.
    Mr. Chaffetz. I appreciate that. It is getting good, Mr. 
Chairman, thank you.
    Thanks to the Attorney General. Thank you, sir, for being 
here. We need you to do well. We support you. As the top law 
enforcement officer, your job is as critical as any in the 
Administration; and I recognize the difficulties that you have.
    Two issues that at some point I hope you would address: In 
February of 2009, the High-Value Detainee Interrogation Group 
was unveiled. You say in your written testimony that it is 
``used informally over the past year in support of 
counterterrorism.'' Some clarification. Sometimes we read in 
the media that they are highly used, they are used a lot, but 
when you say they are used ``informally'' it doesn't give us 
necessarily the greatest confidence that this group is really 
up and rolling and used to the degree that it was originally 
intended to do.
    The second thing is, at the end of 2008, it was pointed out 
in the Wall Street Journal today, New York City Police 
Commissioner Ray Kelly slammed FISA as, quote, an unnecessarily 
protracted risk-averse process that is dominated by lawyers, 
not investigators and intelligence collectors. The Federal 
Government is doing less than it is lawfully entitled to do to 
protect New York City, and the City is less safe as a result.'' 
From Commissioner Kelly.
    At some point, I would love to hear your comments and 
perspectives on FISA and how that is working and is it 
actually, as Commissioner Kelly suggested back at the end of 
2008, putting us in a worse position and giving you less tools 
than you need to do what you need to do.
    I recognize the time constraints and thank you, Mr. 
Chairman. I yield back.
    Mr. Conyers. Dr. Judy Chu of California.
    Ms. Chu. Thank you, Mr. Chair; and thank you, Attorney 
General Holder, for being here today.
    I have great concerns about the passage of Arizona law SB 
1070. It raises important questions about civil rights in the 
U.S. It is a cruel and misguided effort, and it basically 
institutionalizes racial profiling and has already led to 
American citizens being detained by the police simply because 
they forgot their drivers' licenses at home.
    I think that it is unconscionable for any of our citizens 
to have to live in fear and carry multiple forms of 
identification with them everywhere they go. This is something 
that one would expect from a Cold War Eastern Bloc country and 
not America in the 21st century.
    But what is worse is there is a disturbing pattern of 
racial profiling emerging when local law enforcement is tasked 
with enforcing immigration laws, making the risk of abuse in 
Arizona of even more concern.
    As Attorney General, you have a heavy responsibility to 
make sure that new and old immigration enforcement programs 
don't tread on our civil liberties; and I would like to hear 
what you have to say about this.
    I also would like to add that I'm deeply concerned about 
comments that you made this weekend suggesting that the 
Department might seek a legislative expansion to the public 
safety exception to Miranda. I believe such a move by Congress 
would be unwise and unconstitutional. Most importantly, there 
is no reason to believe that advising suspects of their rights 
obstructs effective law enforcement. To the contrary, our 
experience shows that informing suspects of their rights 
actually benefits law enforcement.
    While I understand there is enormous political pressure to 
be tough on terrorism, I strongly believe we should never put 
political considerations ahead of protecting the constitutional 
rights guaranteed to all citizens; and I would like to hear 
your comments on that as well.
    Thank you, and I yield back the balance of my time.
    Mr. Conyers. Mr. Greg Harper, Mississippi.
    Mr. Harper. Thank you, Mr. Chairman; and thank you, Mr. 
Attorney General, for being here with us today.
    I know a lot of important issues have already been 
mentioned, but one I would like to discuss a little further 
would be the ongoing problem that we have had for years with 
the Association of Community Organizations for Reform Now, or 
ACORN.
    ACORN has stirred up controversy in regard to its Federal 
funding and charges of embezzlement and fraud, especially 
relating to allegations that arose about 2008 voter 
registration drives conducted by that organization. And, of 
course, several well-known videos surfaced several months ago 
that I believe were more than enough evidence to warrant a 
thorough investigation of ACORN by the Department of Justice. 
So I would hope to hear more about that on what the Justice 
Department is doing.
    I know that Ranking Member Smith and other Members of this 
Committee have requested that the Department of Justice 
investigate ACORN, and I know that some State Attorneys General 
have launched their own investigations into the corrupt 
practices of that organization.
    The 2010 mid-term elections are only about 6 months away; 
and for the sake of all American voters and our very-much-
envied election process, I hope that the Department of Justice 
is doing all that it can to ensure that ACORN is being held to 
a high and proper standard. States and localities, as well as 
all American voters, need to be able to see that the Department 
of Justice has responded to the complaints of fraud that it has 
received so that the public can have confidence that their 
complaints have been addressed and not ignored.
    I look forward to hearing your testimony, and I yield back.
    Mr. Conyers. Adam Schiff, who serves with distinction on 
this Committee and the Intelligence Committee as well.
    Mr. Schiff. Thank you, Mr. Chairman.
    Welcome, Mr. Attorney General. It is great to have you back 
in the Committee, and I want to thank you for the hard work you 
are doing in focusing on these unprecedented issues.
    On the Miranda issue, I think it was quite sensible to 
establish the HIG team as we bring in experts from various 
agencies to make quick decisions about how a suspect ought to 
be treated, when Miranda warnings ought to be given. And I 
agree with I think the strong presumption that probably guides 
that group that when you arrest an American on American soil 
that there is a strong presumption that Miranda is given after 
the public safety exception has been realized, after you have 
gotten the information necessary to protect the public.
    I would be interested to learn what you have in mind in 
terms of codifying that public safety exception. In the case 
that gave rise to the exception, you had someone arrested in a 
market with an empty holster. He was asked, where is the gun? 
Told them where the gun was. They sought to suppress that. The 
court quite sensibly found, no, the public safety has to be 
paramount here.
    That is quite easy when you have an empty holster. When you 
arrest someone on terrorism charges like the Times Square case, 
very different situation. Clearly, under that exception, you 
would be able to spend time interrogating the suspect about are 
there other cars? Are there other bombs? Are there other plots?
    But where that public safety--what the parameters of that 
public safety exception are or how they would develop under 
case law, the degree to which Congress can codify, the degree 
to which we can provide input in that, what the constitutional 
limits are, I would be interested to hear your thoughts and 
look forward to working with you on that issue.
    Also, I appreciate the work you are doing and the superb 
committee that was put together to analyze the detainees at 
GITMO, case by case, to figure out what is the best 
disposition, who can be repatriated, who has been detained as 
an unlawful combatant. It is very hard, hard work.
    We need to follow up on that work, though, and address a 
tough issue together; and that is, how do we do the status 
reviews going forward? So those that are ordered detained as 
unlawful combatants who may or may not be prosecuted as well, 
but particularly if they are not prosecuted, we need to work 
together and I think codify what the standards should be going 
forward in those periodic reviews. Who ought to undertake them? 
What kind of oversight?
    And as we move people from GITMO, and I think as we move to 
close down Gitmo and open up a prison, whether it is Thomson or 
elsewhere, we always want to make sure we have legal mechanisms 
in place that if there are cases we lose--and you know there 
have been cases of detainees at Gitmo where the habeases are 
being successful--we need to have a legal mechanism to make 
sure that they are not released into the United States. And I 
look forward to working with you on that issue well.
    Finally, one last thing, if I could, Mr. Chairman, and that 
is the DNA backlog in Los Angeles. It is really imperative that 
we work with you. We would like to establish a pilot in Los 
Angeles where samples analyzed by private labs can be uploaded 
into CODIS by the public lab, and the technical review can be 
done after there is a match. That will save millions. It will 
take violent people off the street. LA is ready to be test area 
for this, and we would love to work with you on that.
    Thank you, Mr. Chairman.
    Mr. Conyers. Thank you.
    Attorney General Eric Holder, a graduate of Columbia 
University, appointed by President Reagan to the bench and then 
to the U.S. Attorney for the District of Columbia by President 
Clinton, elevated to Deputy Attorney General in 1997, private 
practice with Covington & Burling, and then on February 3rd of 
last year was sworn in as Attorney General of the United 
States.
    We have your statement, which will be entered into the 
record. We appreciate your patience and consideration and 
welcome you to this hearing.

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

    Mr. Holder. Well, good morning, Chairman Conyers, 
Representative Smith, and distinguished Members of the 
Committee.
    I'm very pleased to appear before you today to discuss the 
accomplishments of the Department of Justice in the past year, 
but first let me thank you for your ongoing support of the 
Department's work and your recognition of the essential role 
that the Department plays in defending our Nation and its 
highest principles.
    Now throughout my confirmation process and since becoming 
Attorney General last February, I worked to establish and to 
articulate a clear set of goals for the Department: protecting 
the American people against foreign and domestic threats; 
ensuring the fair and impartial administration of justice; 
assisting State and local law enforcement; and defending the 
interests of the United States. I have repeatedly pledged, just 
as I did when I appeared before this Committee last May, to 
pursue these goals in service to the cause of justice and in a 
way that honors the Department's commitment to integrity, 
transparency, and the rule of law.
    The thousands of men and women who serve the Justice 
Department have made, I believe, meaningful progress in meeting 
these goals, whether in the pursuit and prosecution of 
terrorists, in the fight against crime, or in protecting our 
civil rights, preserving our environment, ensuring fairness in 
our markets, seeking justice in our tribal communities, 
promoting transparency in our government, and enforcing our tax 
laws.
    Despite the unprecedented challenges and new demands that 
have emerged, we are on the right path to fulfilling our 
obligations and achieving our goals. Protecting Americans 
against terrorism remains the highest priority of the 
Department of Justice. The Administration will continue to use 
all lawful means to protect our national security, including, 
where appropriate, military, intelligence, law enforcement, 
diplomatic, and economic tools and authorities. We will 
aggressively defend our Nation from attack by terrorist groups 
consistent with our Constitution, our laws, and our values, as 
well as our international obligations.
    Now as one of the counterterrorism tools available to us, 
the criminal justice system has proven its strength in both 
incapacitating terrorists and gathering valuable intelligence, 
most recently in the case of Faisal Shahzad. Twelve days ago, 
we believe that he attempted to detonate a car bomb in Times 
Square. Less than 53 hours later, thanks to the outstanding 
work of the FBI, the Department's National Security Division, 
the U.S. Attorneys' Offices, and our partners at the New York 
Police Department and the Department of Homeland Security, 
Shahzad had been identified, located, and arrested. When 
questioned by Federal agents, he provided useful information. 
We now believe that the Pakistan Taliban was responsible for 
this attempted attack. We are currently working with the 
authorities in Pakistan on this investigation, and we will use 
every available resource to make sure that anyone found 
responsible, whether they be in the United States or overseas, 
is held accountable.
    Just this morning, we executed search warrants in several 
locations in the Northeast in connection with the investigation 
into the attempted bombing. Several individuals who were 
encountered during those searches have been taken into Federal 
custody for alleged immigration violations. These searches are 
the product of evidence that has been gathered in the 
investigation since the attempted Times Square bombing and do 
not relate to any known immediate threat to the public or 
active plot against the United States. I share that information 
just to indicate that this is an ongoing investigation and that 
we are actively pursuing all those who were involved in it.
    This attempted attack is a sober reminder that we face 
aggressive and determined enemies. For example, since January 
of 2009, 14 individuals have been indicted in Minnesota in 
connection with travel to Somalia to train or to fight with the 
terrorist group al Shabaab; David Headley was indicted in 
Chicago and pleaded guilty in connection with a plot to bomb a 
Danish newspaper and for his involvement in the November, 2008, 
terror attacks in Mumbai; Umar Farouk Abdulmutallab was charged 
with Federal crimes in connection with the attempted bombing of 
Northwest Airlines Flight 253 near Detroit last Christmas.
    In addition, in February, 2010, Najibullah Zazi pleaded 
guilty in the Eastern District of New York to conspiracy to use 
weapons of mass destruction, specifically explosives, against 
persons or property in the United States, conspiracy to commit 
murder in a foreign country, and providing material support to 
al Qaeda. Zazi admitted that he brought explosives to New York 
as part of a plan to attack its subway system. This was one of 
the most serious terrorist threats to our Nation since 
September 11, 2001, and, but for the combined efforts of the 
law enforcement and intelligence communities, it could have 
been devastating. Several associates of Zazi have also been 
charged with participating in the plot and related crimes, 
including Zarein Ahmedzay, who has also pleaded guilty to 
terrorism charges and faces a sentence of up to life in prison.
    The Department's work to combat terrorism includes civil as 
well as criminal proceedings. For example, the Department 
successfully defended the Treasury Department's designation and 
attendant asset freeze of a Saudi Arabia-based charity engaged 
in the widespread financial support of terrorist groups around 
the world, including al Qaeda.
    In addition to these efforts to protect our Nation from 
terrorism and other threats over the last year, we have 
reinvigorated what I have come to call the traditional missions 
of the Department. We have strengthened our efforts to protect 
our environment, to combat health care fraud, and to enforce 
our anti-trust laws. We have worked to safeguard civil rights 
in our workplaces and in our neighborhood. We have made strides 
in ensuring that prisons and jails are secure and 
rehabilitative, and we have worked to make Federal criminal 
laws more fair and more effective. And, as part of our focus on 
securing our economy and combating mortgage and financial 
fraud, the Department is leading the Financial Fraud 
Enforcement Task Force that President Obama established last 
year, using new legal tools provided by Congress.
    Once again, I thank you for your support of the 
Department's most urgent and most essential work. I look 
forward to working with this Committee and with the Congress, 
and now I'm more than happy to answer any questions that you 
might have.
    [The prepared statement of Attorney General Holder 
follows:]

        Prepared Statement of the Honorable Eric H. Holder, Jr.










































                               __________
    Mr. Conyers. Thank you very much, Attorney General.
    We will recess for some votes, and we will return 
immediately.
    The Committee stands in recess.
    [Recess.]
    Ms. Jackson Lee. [Presiding.] The Judiciary Committee is 
now called to order.
    And, Mr. Attorney General, we are in the round of 
questions. And before I pose a motion, let me suggest that, by 
the opening statements of the Members, you have heard a number 
of concerns.
    And I would only add to those concerns, and not all in 
totality, is a very serious matter of mergers and particularly 
the merger between Continental and United. And I know that we 
will have an opportunity to raise that very important question 
either today or prospectively.
    And so we are at the point of questions, as I indicated. 
But I would like to indicate to you that our Chairman, who has 
presided over this Committee with excellence and great 
leadership, and presided earlier today, was approached by 
Members on the floor having a number of conflicts and flights 
to catch on important district business. Because of his 
chairmanship of the Committee leadership, he thought it would 
be a service to the Members if we could adjourn the hearing and 
schedule it at a later date.
    Therefore, I am asking unanimous consent to adjourn the 
hearing at this time.
    Mr. Smith. Madam Chairman, I object, and I would like to be 
recognized to explain my objection.
    Ms. Jackson Lee. The Ranking Member objects, and I will 
yield to him for his explanation.
    Mr. Smith. Thank you, Madam Chairman.
    The Chairman and I had a discussion about this subject, 
whether we should adjourn now because we are finished with 
votes for the day and perhaps return next week or the week 
after we get back from our Memorial Day break. Had the AG been 
able to assure us that he would be able to give us a time and a 
date to have that hearing and continue this hearing and be able 
to ask him questions, I certainly would have agreed to do that.
    I understand the AG's travel schedule, I can appreciate the 
fact that he might not be able to give us a hard date, but I am 
uncomfortable adjourning this oversight hearing without that 
time and date specific. And that is why I feel that we should 
go forward, and we clearly have a critical mass of Members to 
do so.
    And, Madam Chair, I would be happy to yield to the AG, who 
looked like he was getting ready to respond as well.
    Ms. Jackson Lee. Thank you.
    Mr. Attorney General, I am not sure if you were interested 
in being yielded to at this point.
    Mr. Holder. I am sorry?
    Ms. Jackson Lee. Are you interested in being yielded to at 
this point. Otherwise, I would have a Member that I will call 
on.
    Mr. Holder. No, I am ready to proceed.
    Ms. Jackson Lee. Mr. Schiff of California.
    Mr. Schiff. Thank you, Madam Chair.
    I was just going to say, to respond to my colleague from 
Texas, I understand the concern he has.
    On the other hand, the Attorney General has demonstrated no 
reticence or reluctance whatsoever to come before the 
Committee, not only this Committee, but others, and I am 
confident he will return at the first available opportunity. If 
that is the case, it would be nice to have more full 
representation of the Committee. I know a lot of Members who 
couldn't stay would love to participate in the hearing, and 
they will lose that opportunity if we go forward without them.
    Mr. Smith. Would the gentleman yield?
    Mr. Schiff. I would be glad to.
    Mr. Smith. Several responses to the gentleman's point.
    First, it is obvious that the Attorney General has 
indicated a willingness to stay and answer questions for as 
long as they might be.
    Second of all, all Members of Congress were on notice that 
we expected to be in session today until at least 3 or 4 this 
afternoon. The fact that the votes ended earlier was not 
anticipated, so Members have not had to change any plans if 
they wanted to participate in this hearing.
    And then, thirdly, as I said, to repeat myself, had the AG 
been willing to commit to a date some time in the next 3 weeks, 
I would have certainly gone along with the suggestion that we 
adjourn today. But without that commitment from the AG, and 
despite the assurance of the gentleman from California--he 
seems to be more confident in the appearance of the AG in the 
coming weeks than the AG himself, or I think the AG would have 
given a commitment to a specific time and date. But absent 
that, I think it best that we proceed.
    Mr. Schiff. Madam Chair, reclaiming my time, that being 
said, we will just go forward.
    Thank you, Madam Chair.
    Ms. Jackson Lee. Thank you.
    The objection being heard on the request for unanimous 
consent to adjourn, and the objection being raised, the meeting 
will now proceed.
    At this time, I would like to yield 5 minutes for his 
questioning to the gentleman from Virginia, the Chairman of the 
Subcommittee on Crime, Mr. Scott.
    Mr. Scott. Thank you.
    Mr. Attorney General, the last time you were here, I asked 
you about whether or not if someone had been tortured to death, 
whether or not a crime almost certainly would have been 
committed, and you answered in the positive.
    My question is what is the statute of limitations for 
torture if someone dies, and the statute of limitations if 
someone does not die? I have a lot of questions, and if you 
would prefer to respond in writing, that would be fine.
    Mr. Holder. I think I would like to respond in writing to 
at least the second part of that question.
    With regard to the first part, there is no statute of 
limitations where death results.
    Mr. Scott. Thank you.
    There has been a lot of controversy on Miranda rights. The 
last case in the Supreme Court on Miranda rights was ruled on a 
constitutional basis, not statutory interpretation. If we tried 
to change the statute might we not cause more problems than we 
solve because nobody would know until that hits the Supreme 
Court whether what we did was constitutional or not? And how 
would that affect the practice on the ground if a police 
officer has to sit up there and wonder, well, I have got all 
these exceptions, I might have to give a Miranda warning, I 
might not, are they a citizen, maybe they are a terrorist, 
maybe they are a citizen, not a citizen? Might you end up 
messing up a lot of cases where Miranda turned out to be 
required rather than fixing something? Will it make matters 
worse by trying to change anything?
    Mr. Holder. Well, I think it is our view that the use of 
the public safety exception, I want to make clear to everyone 
that what we are focusing on is the potential modernizing, 
clarifying of the public safety exception, not the Miranda rule 
itself, but to come up with a way in which we give to agents, 
to police officers, greater clarity as to how the public safety 
exception can be used.
    The public safety exception was crafted back in the 1980's 
in connection with case Quarles that involved a police officer 
asking a person, ``where's the gun?''
    We now find ourselves in 2010 dealing with very complicated 
terrorism matters. Those are certainly the things that have 
occupied much of my time. With regard to that small set of only 
terrorism-related matters, not in any other way, just terrorism 
cases, any act on modernizing, clarifying, making more flexible 
the use of the public safety exception would be something 
beneficial.
    Mr. Scott. But at the point of time the interrogation 
starts, a profile for somebody might not be able to tell 
whether it is terrorism or not. And thinking wrongly that it is 
terrorism, you can mess up an otherwise fairly good case. But 
we will look to see what you come up with.
    The Bureau of Prisons is under your jurisdiction, is that 
correct?
    Mr. Holder. That is correct.
    Mr. Scott. And the Federal Prison Industries is an 
important program. Do you have any statement on how we can make 
that program stronger and any support you want to give to that 
program of why it is so important?
    Mr. Holder. It is a critical part I think of our effort to 
make our prisons more than places that simply warehouse people, 
to give people an opportunity to gain skills that make them 
successful upon leaving prison.
    I think what people have to always focus on is that the 
vast majority of people who go into prisons are going to come 
out at some point. And to the extent that we can provide 
rehabilitative services to them through the vocational 
opportunities that the Federal Prison Industries program 
provides, I think those should be supported. I am a big, big 
supporter of that program.
    Mr. Scott. Thank you.
    I mentioned in my opening remarks, the Office of Legal 
Counsel memorandum, June 29, 2007, that essentially suggested 
that the Religious Freedom Restoration Act of 1993 provides a 
virtual blanket overriding statutory nondiscrimination 
provisions. Has your office reviewed that memorandum, and if 
so, could you tell us the status of what you are going to do 
with it, or would you want to get back to us in writing on 
that?
    Mr. Holder. Well, I think I would like to get back to you 
in writing about that one. I have not had a chance to have, I 
think, in-depth conversations that I need to have about that in 
order to respond in the way that I would like to your question.
    Mr. Scott. Okay.
    You are aware that the President, during his campaign in 
Zanesville, Ohio, indicated, and I quote, if you get a Federal 
grant, you can't use the grant money to proselytize to the 
people you help and you can't discriminate against them, or 
against the people you hire on the basis of religion, at least 
that is what he wanted to do.
    Since then, there is a suggestion that discrimination would 
be allowed on a case-by-case basis. It seems fairly unusual 
that you would allow discrimination on a case-by-case basis. Do 
you have any comment on where we are on restoring the civil 
rights for employees that existed from 1965 until about 2001 or 
2002?
    Mr. Holder. Well, I think the Administration is committed 
to partnering with faith-based organizations in a way that is 
consistent with the law, consistent with our values, and 
consistent with the way in which I think this Administration 
has conducted itself.
    The Department will continue to evaluate any legal 
questions that arise with regard to how we do that on a case-
by-case basis. But I think overall----
    Mr. Scott. I think the law apparently allows discrimination 
as a policy. I mean, you have to set the policy through 
executive orders and statutes. Is it the policy of this 
Administration now to allow the discrimination on a case-by-
case basis, and one group can say, well, we don't hire people 
based on race and religion, and another group, well, we are not 
going to allow you to discriminate on race and religion? Or is 
it the policy of this Administration to allow discrimination?
    Mr. Holder. No, that is not the policy. The policy of the 
Administration is to interact with faith-based organizations or 
any organization.
    Mr. Scott. Which you can do without discriminating and 
without proselytizing.
    Mr. Holder. We can operate with them and interact with them 
in a way that is consistent with the law, consistent with our 
values, and consistent with the way in which this 
Administration, I think, has postured itself on a whole range 
of issues.
    Mr. Scott. Well, let's just be clear. Is it the policy of 
this Administration to allow--is the policy of the 
Administration going to be discrimination will not be allowed?
    Mr. Holder. We are--yes, that is not the view that we 
share. We do not have a view that discrimination is 
appropriate.
    And we want to, as I said, interact with these 
organizations where these issues are presented in such a way 
that we are acting consistent with the law and acting, again, 
consistent with what our values are, both as a Nation and as an 
Administration.
    Ms. Jackson Lee. The gentleman's time has expired.
    The gentleman from Texas, Mr. Smith.
    Mr. Smith. Thank you, Madam Chair.
    Mr. AG, the Times Square bomber, Shahzad, was a naturalized 
citizen, just became a naturalized citizen a year ago. As you 
know, current law allows us to denaturalize anybody who in the 
last 5 years----
    Mr. Holder. I am sorry, I can't hear Mr. Smith.
    Ms. Jackson Lee. Can the technician check the microphones, 
please?
    Mr. Holder. I am sorry.
    Mr. Smith. I regret all of my earlier comments might not 
have been heard earlier. 
    Okay. There it is.
    Mr. Attorney General, the Times Square bomber, Mr. Shahzad, 
became a naturalized citizen less than a year ago. Under 
current law, we can denaturalize an individual who has become a 
naturalized citizen in the last 5 years if they are a member of 
an organization whose intent is to overthrow the Government of 
the United States.
    Do you consider terrorist organizations to be among the 
prohibited organizations that would allow us to denaturalize 
somebody? And when I say ``terrorist organization,'' I am using 
the definition of the Immigration and Nationality Act of a 
terrorist action.
    Mr. Holder. I am not familiar with the immigration laws, or 
that particular immigration law. And I don't have an ability 
to, without having had a chance to study it, answer that 
question in an intelligent way.
    Mr. Smith. Well, you are unsure whether someone who is a 
member of a terrorist organization would be able to be 
denaturalized, is that correct, from your answer?
    Mr. Holder. Well, my answer is that if, in fact, there is a 
statute that allows that to occur, it is not a statute that I 
am conversant with, and I am not in a position to answer your 
question.
    Mr. Smith. That was section 240, but I look forward to you 
getting back to me.
    Would you consider the Pakistani Taliban to be a terrorist 
organization?
    Mr. Holder. If not formally designated, I think we have 
certainly seen through their actions and certainly in their 
attempt through Mr. Shahzad, that they are certainly a 
terrorist organization.
    Mr. Smith. But you consider them to be a terrorist 
organization?
    Mr. Holder. I would, even if not formally designated.
    Mr. Smith. Would you take action, and the DOJ can initiate 
this, to denaturalize the Times Square bomber?
    Mr. Holder. I am sorry?
    Mr. Smith. Would you take action to denaturalize the Times 
Square bomber on the basis that he was a member of the 
terrorist organization the Pakistani Taliban?
    Mr. Holder. We have a wide range of things that we can do 
with regard to the potential defendant in this matter. We have 
an ability to put him in jail for extended periods of time.
    Mr. Smith. So you don't intend to denaturalize him?
    Mr. Holder. Well, I am saying that we have the ability to 
do a whole variety of other things. And whether or not there is 
an ability to denaturalize him, by the way, is something that 
has been discussed, and whether or not there are constitutional 
issues that are involved in that process, they certainly have 
been raised, and I think those would have to be considered as 
well.
    Mr. Smith. I read your answer to mean that you are not 
prepared today to say you would denaturalize him.
    Let me go to my next question, which is, in the case of all 
three attempts in the last year, the terrorist attempts, one of 
which was successful, those individuals have had ties to 
radical Islam. Do you feel that these individuals might have 
been incited to take the actions that they did because of 
radical Islam?
    Mr. Holder. Because of?
    Mr. Smith. Radical Islam.
    Mr. Holder. There are a variety of reasons why I think 
people have taken these actions. One, I think you have to look 
at each individual case. I mean, we are in the process now of 
talking to Mr. Shahzad to try to understand what it is that 
drove him to take the action he took.
    Mr. Smith. But radical Islam could have been one of the 
reasons?
    Mr. Holder. Well, there are a variety of reasons.
    Mr. Smith. Is radical Islam one of them?
    Mr. Holder. There are a variety of reasons why people do 
these things. Some of them are potentially religious based.
    Mr. Smith. What I am asking is if you think, among those 
variety of reasons, radical Islam might have been one of the 
reasons that the individuals took the steps that they did?
    Mr. Holder. We see some radical Islam--I mean, I think 
those people who espouse a version of Islam that is not----
    Mr. Smith. Are you uncomfortable attributing any of their 
actions to radical Islam? It sounds like it.
    Mr. Holder. No. I don't want to say anything negative about 
a religion that is not----
    Mr. Smith. We are not talking about Islam. I am talking 
about radical Islam. I not talking about the general religion.
    Mr. Holder. Right. And I am saying that a person, like 
Anwar al-Awlaki for instance, who has a version of Islam that 
is not consistent with the teachings of it and who espouses a 
radical version----
    Mr. Smith. Could radical Islam have motivated these 
individuals to take the steps that they did?
    Mr. Holder. I certainly think that it is possible that 
people who espouse a radical version of Islam have had an 
ability to have an impact on people like Mr. Shahzad.
    Mr. Smith. And could it have been the case in one of these 
three instances?
    Mr. Holder. Could that have been the case?
    Mr. Smith. Yeah. Again, could one of these three 
individuals have been incited by radical Islam or at least feel 
that they could have been?
    Mr. Holder. I think potentially incited by people who have 
a view of Islam that is inconsistent with----
    Mr. Smith. Mr. AG, it is hard to get an answer yes or no, 
but let me go on to my next question.
    This has to do with the transfer of individuals from 
Guantanamo Bay to other countries. Do we know, and I am not 
asking you about specifics or individuals, but I hope our 
Federal Government, and do you have assurances from those 
countries that have received these transferees, that we know 
where these individuals are? Do we know whether they have 
remained in those countries and have been detained or not?
    Mr. Holder. When we make these transfer decisions, we work 
out in advance secure arrangements with the receiving nations 
so we have a sense of where they are, what steps are going to 
be put in place to monitor their activities and their movement.
    Mr. Smith. Have any of these transferees made under this 
Administration returned to terrorism?
    Mr. Holder. I have read reports of that by one person, but 
I cannot confirm that.
    Mr. Smith. Let's just say that one person did, and that 
could well be the case. Doesn't that give you pause about 
transferring anyone from Gitmo to foreign countries if even one 
person goes back to the battlefield, returns to terrorism, and 
might kill innocent Americans? Doesn't that give you pause 
about the whole program?
    Mr. Holder. Well, we put in place a very comprehensive 
program that looked at the 240 people who were at Guantanamo 
when we got there.
    Mr. Smith. But it is not working if anybody that has been 
transferred does return to terrorism, as you just acknowledged 
might have been the case. It seems to me you would want to stop 
the program and reevaluate the safeguards that you have.
    Mr. Holder. Well, I am confident that by putting together 
law enforcement, our military people, our intelligence people, 
and looking at those 240 people and making determinations as to 
where they should go, the best determinations we could make we 
actually did make.
    Mr. Smith. But it is obviously not working if you had 
people return to terrorism who were transferred to other 
countries who you didn't need to transfer to other countries.
    Ms. Jackson Lee. The gentleman's time has expired.
    Mr. Holder. Let me be clear here. I have not said that, on 
the basis of anything that I know that is credible or 
authoritative, that anybody that we have released----
    Mr. Smith. I thought you just said one may have.
    Mr. Holder. I read reports, I said, but in newspapers. That 
is all I am saying. I am not in a position at this point to say 
that, in fact, is accurate. I am not going to comment on the 
intelligence.
    Ms. Jackson Lee. The gentleman's time has expired.
    I now allow myself 5 minutes for questioning.
    Mr. Attorney General, you have had numerable challenges, I 
would almost call it, for fear of using a play on words, a mine 
field. Let me thank you for the deliberative manner in which 
the Department of Justice has handled the matters for the 
American People. You are to be credited for working through 
difficult issues and being thoughtful, along with your staff. 
We have difficult issues before us.
    And I would like to start off with my questioning on the 
whole concept of too big to fail. The Department of Justice is 
now involved. You are involved in the financial markets. You 
are involved in the communications markets, and you are 
involved in the aviation market, because there have been 
efforts to merge. Certainly there is a communication merger 
that is before the Department of Justice and another agency, 
but I will focus my time on the Continental Airlines and 
United, and raise several questions quickly so that you can 
comment on what kinds of, what structure the investigation will 
take. Unlike Comcast and NBC, which has a number of other 
agencies, it appears that the Department of Justice in this 
instance may be the overriding agency.
    So the question becomes, do we have a concept merger that 
represents something too big to fail? Are there major Clayton 
Section 7 anticompetitiveness involved routes and otherwise? 
And do we hold to the comments made by one of the CEOs that 
this is, in essence, my words characterizing theirs, an easy 
do, a piece of cake, and we will be done in a certain period of 
time?
    The question is, the American people will be drastically 
impacted, my words, closing routes, closing hubs, changing 
locations, losing jobs; my direct question to you, is the 
Justice Department going to be guided by public statements by 
CEOs, it is a piece of cake? Are they going to be guided by 
comments, it is an Illinois deal, and they will look the other 
way? And are they going to be guided by the fact that the Star 
Alliance, which you also reviewed and thank you for doing so 
vigorously, was supposed to, by many points, represent making 
these entities strong enough to stay on their own, but maybe it 
was a step toward monopoly; what will be the structure of that 
investigation? And do we expect that you will finish it in 2 
months, as we have been represented to?
    Mr. Holder. Well, we have, I think, a revitalized Antitrust 
Division that is headed by a very capable woman, Christine 
Varney. And whenever a proposed transaction or agreement raises 
significant competition issues, the Department's Antitrust 
Division will conduct a very vigorous investigation, and that 
is what we would plan to do here.
    And to the extent that the merger of United and Continental 
would substantially lessen competition, we would take the 
appropriate enforcement action. The Department will examine 
this merger, as it does all of those that are within our 
responsibility, very seriously, take into account all of the 
information that we can, and take very, very seriously the 
responsibility that we have.
    I am very proud of the work that the Antitrust Division 
under Christie Varney has taken.
    Ms. Jackson Lee. Will you put any self-imposed deadline on 
yourself, on the Department of Justice?
    Mr. Holder. We will take the time that is necessary for us 
to look at it, to make sure that we are comfortable in the 
decisions that we are making. We will not unnecessarily delay 
things, but we will certainly take the time that we need to 
come up with a reasoned decision.
    Ms. Jackson Lee. Thank you.
    Let me just, very quickly, two major questions have come 
up. The Arizona law that seems to racially profile a number of 
classes of individuals, the basic question I have beyond racial 
profiling is the preemption question as it relates to 
immigration law. Have we yielded, and does the Justice 
Department intend to vigorously pursue, the question of this 
law as it may relate to Federal preemptiveness?
    And let me ask the other two. Dealing with the Times Square 
bomber, based on your experience, can you compare the 
effectiveness of the interrogation methods used for the 
attempted flight 253 and Times Square bomber, on the one hand, 
and so-called enhanced interrogation, which you have addressed 
now in the past, such as methods like water boarding, those 
calling for that approach? Do you believe that the flight 253 
suspect's family, as you have indicated, would have come to the 
United States, persuaded him to cooperate and provide 
significant valuable intelligence, which I think is very 
important, if he had been water boarded, rather than giving 
Miranda warnings, which have been given to terrorists, alleged 
terrorists, by the Bush administration? Effectively, what are 
we trying to show as we present ourselves to the world on 
fighting the war on terror?
    Mr. Holder. Well, I think that if one looks at the facts 
and looks at the questioning that was done by experienced FBI 
agents with regard to Abdulmutallab, with regard to Shahzad, 
and with regard to Headley, one would see that the customary 
FBI techniques that do not involve the use of enhanced 
interrogation procedures have proven to be effective. We have 
gotten useful information, and useful intelligence, from all of 
these individuals as a result of the use of techniques that are 
recognized as traditional, and that are recognized as 
consistent with our values.
    There is not a tension between conducting ourselves in law 
enforcement in a way that is consistent with our values and 
being effective and having the ability to protect the American 
people. And I think if one looks at what has happened over the 
past year, one would see dramatic proof of that.
    Ms. Jackson Lee. The Arizona law Federal preemption and the 
Justice Department's intention?
    Mr. Holder. As I have indicated, we are in the process of 
looking at that law. We are concerned about the potential 
impact that it has, and whether it contravenes Federal civil 
rights laws potentially leading to racial profiling. We are 
also concerned about whether there is the possibility that it 
crosses the line with regard to preemption.
    There is certainly an immigration issue, an immigration 
problem, an illegal immigration problem that this country needs 
to face. The concern that we have is this is something that 
ought to be done on a national basis as opposed to trying to do 
it on a State-by-State basis.
    Ms. Jackson Lee. I thank the gentleman.
    I now recognize the gentleman from California, Mr. Lungren, 
for 5 minutes.
    Mr. Lungren. Thank you very much.
    And I appreciate your appearance before us, Mr. Attorney 
General.
    I do have to comment though, we seem so careful not to use 
terms like radical Islam for fear of offense, but we readily 
refer to racial profiling being either the consequence or the 
motivation of the voters and elected officials in Arizona. And 
I find that remarkable.
    Mr. Holder. Well, I am sorry.
    Please do not misinterpret what I said. I did not say that 
that was why, that that was the motivating factor for the 
people in Arizona.
    I understand their frustration. I am saying that one of the 
things that we need to look at, at the Department of Justice, 
is whether or not we should have a national answer to a problem 
that is very real to them.
    Mr. Lungren. I appreciate that, Mr. Attorney General.
    It must be frustrating to the people of Arizona who write 
in the law, there shall not be any racial profiling, by 
specifying you cannot use that as the reason for stopping an 
individual or questioning an individual, and yet immediately 
there is a comment on this panel and other places that that 
must be racial profiling. When is something not when they say 
it is not, may be the real question here?
    I only half-facetiously ask, can we assure the American 
people that Mr. Shahzad was not motivated by anger developed 
because of the passage of the health care bill?
    Mr. Holder. Excuse me?
    Mr. Lungren. Well, that was suggested by the mayor of New 
York as the possible reason for the activities, and we seem to 
be reluctant to talk about radical Islam possibly being the 
case.
    Let me ask this, Mr. Attorney General, on the Miranda 
warnings. What is the position of your Administration, what is 
the position of the Justice Department on this question: Do we 
believe that no Miranda warnings should be given until we have 
gotten from suspected terrorists, for whom we have reasonable 
suspicion they are involved with terrorism, that we have got 
from them every bit of information that they have with respect 
to public safety demands?
    Mr. Holder. We do these on a case-by-case basis. And what 
we try to do is make use of the law as it exists. And we 
certainly know that in those initial interactions with people 
who we suspect to be terrorists, there are public safety 
questions that can be asked of them. We try to use the public 
safety exception to glean as much information as we can 
appropriately and consistent with what the Supreme Court has 
said that we can do.
    Mr. Lungren. I appreciate it.
    My question is, at what point in time do you believe that 
you must cease that and give Miranda warnings before further 
interrogation can take place?
    Mr. Holder. Well, a decision has to be made about whether 
or not you are going to give Miranda warnings at the time when 
you feel that you have exhausted all the questioning that you 
can do under the public safety exception, whether you have made 
the determination that there is perhaps no immediate threat to 
the public or to the officers who are involved.
    Mr. Lungren. That is the question I have.
    There is a distinction, at least in my mind, between the 
public safety exception as previously understood by court 
decision; that is, it is the case of imminent danger. You have 
the case where a gun is missing; you know it is in that 
location, and someone might pick it up and do harm immediately. 
You have the case of a ticking time bomb; you have to get that 
information immediately.
    But in this case or in cases involving suspected 
terrorists, presumably we are trying to get more information 
than just the immediate danger. We are trying to solicit 
information with respect to perhaps a terrorist network. And so 
my question is, is it not a somewhat different application of 
law or the foundations of the exception of the law to use it in 
these circumstances involving terrorists as opposed to the 
conventional notion in regular criminal cases?
    Mr. Holder. I think the definition of immediate danger 
really can be different if one looks at, to use your words, the 
traditional context as opposed to the terrorist context. That 
is one of the reasons why we think that we should think about 
modernizing, and clarifying, the public safety exception so 
that we would have a public safety exception that is prepared--
that we can use and deal with that.
    Mr. Lungren. I understand that. And what I am trying to get 
at is, what is the basis of that?
    For instance, Mr. Abdulmutallab, as I understand it, 
Abdulmutallab gave you information some weeks after you 
arrested him. Or at least, based on statements that have been 
made from the Justice Department, one would ascertain that. If 
that be the case and that information was valuable in allowing 
us to further understand terrorist plots, then one would 
question whether or not we should have tried to get that 
information earlier, prior to the time that we gave him the 
Miranda warnings. And if, in fact, the justification is that it 
is danger not of this immediate, short time period, that is, do 
we know whether he has another bomb, but rather we are trying 
to gain information with respect to terrorist activity, then 
that notion is different and the underlying legal argument made 
before the court is different.
    I am trying to glean from you, what is the basis for your 
use of the imminent danger exception in terrorist cases as 
opposed to criminal cases?
    Mr. Holder. Well, if the question is, let's say, in Quarles 
case, where is the gun, a simple question, and that was 
allowed.
    In a terrorist situation, there are a whole variety of 
other questions that one would want to put to a person. Are 
there other people who are similarly engaged are we concerned 
about? We know how al Qaeda likes to do things in tandem. Are 
there other bombs that are----
    Ms. Jackson Lee. The gentleman's time has expired. Finish 
your answer.
    Mr. Holder. Are there other bombs that we need to be 
concerned with? Are there other people who are going to be 
coming this way as a result? Are you maybe the first in a--are 
you in the vanguard of a terrorist attack? These are all 
questions that we think can appropriately be asked under the 
public safety exception. We want to have--our view is that we 
would like to have a greater degree of clarity with regard to 
what the public safety exception would entail, and that would 
be useful for agents, police officers, who have to deal with 
terrorist suspects.
    Ms. Jackson Lee. The gentleman's time has expired.
    I recognize the gentleman from North Carolina for 5 
minutes, Mr. Watt.
    Mr. Watt. Thank you, Mr. Attorney General.
    I appreciate you being here.
    And this has been a little disjointed process. I hope it 
hasn't blown up your whole day, but I am happy to have you 
here.
    Let me ask three quick questions. And to the extent you can 
comment publicly, that would be great. To the extent you want 
to follow up in writing, it would also be great.
    We got some information several weeks ago that Professor 
Laurence Tribe was coming over to assist you all with the 
Access to Justice Program, and then it has kind of gone quiet 
since then. So one of the things I would like to try to find 
out is, what he is doing and whether we are making, you know, 
any progress on the Access to Justice Program? And maybe you 
are not ready to roll that out, and I respect that if you are 
not ready to do that publicly here, but at some point, it would 
be great to get a report on that.
    Mr. Holder. Well, I can tell you that----
    Mr. Watt. Go ahead. I was going to ask all three of them, 
and then let you wax and wane, and stay out of it.
    Mr. Holder. Okay.
    Mr. Watt. The second thing is, I note that there was a 
settlement with AIG for $6.1 million to African American 
customers. While I never thought I would live to see a day that 
I thought $6.1 million was a paltry sum, given the magnitude of 
distress that AIG and others caused African American customers, 
that seems like a fairly modest settlement. To the extent that 
you are able to provide any details on that case without 
violating whatever ethical standards you have, it would be 
helpful to get some information on that.
    And then, finally, I wanted to applaud, obviously, the 
objections that you all have interposed to the proposal of 
Kingston, North Carolina, to change its voting system under the 
Voting Rights Act preclearance provisions. And I would like to 
get, perhaps in writing again, because I am not sure if 5 
minutes will do justice to it, some assessment of the kind of 
preparation you are making for the onslaught of cases that are 
likely to come. As soon as this Census is over, I suspect there 
will be a whole new round of voting rights cases filed, and I 
think we need to be as prepared, and DOJ needs to be as 
prepared as possible to meet that onslaught.
    So those are the three areas of inquiry. And I will shut 
up, and you can use the rest of my 5 minutes to respond, and 
whatever you don't respond to in the 5 minutes, then perhaps 
you can send us something in writing.
    Mr. Holder. I will. I will take you up on your offer to 
respond in writing with regard to the second and third 
questions that you raised about the settlement and about the 
question of the Census and the interaction that has with the 
position we have taken in Kingston.
    With regard to the Access to Justice initiative that 
Professor Tribe is involved with, that is something that is 
really critical to me as Attorney General and to the President 
as well to come up with ways in which we make sure that people, 
irrespective of their economic condition, irrespective of their 
socioeconomic status, have an ability to enjoy all the fruit of 
our great system.
    One of the things that we are focused on and one of the 
things that Professor Tribe is focused on is this whole 
question of indigent defense and whether or not people get 
adequate representation or not based on their economic 
condition. We have seen studies, we have seen reports about 
people in critical parts of criminal proceedings acting without 
a lawyer. We are trying to understand what the various systems 
look like around the country. Professor Tribe will be 
intimately involved in that effort in particular, but then more 
generally to make sure that all American citizens have equal 
access to justice.
    He is a very eminent scholar. He is just stepping up, but I 
expect that he will make a major contribution to this Justice 
Department.
    Mr. Watt. Thank you so much, Madam Chair.
    I will yield back. My time is expired anyway, so I can't 
yield any time back, but I yield back anyway.
    Ms. Jackson Lee. I thank the gentleman for yielding what he 
might not have, but for his courtesy.
    I now recognize the gentleman from Virginia, Mr. Goodlatte, 
for 5 minutes for his questioning.
    Mr. Goodlatte. Thank you, Madam Chairman.
    And, Attorney General Holder, welcome. We are pleased to 
have you here today.
    As you know, and I have had some conversations with your 
staff regarding a case that is of great importance in Virginia, 
in the last days of his gubernatorial term, former Virginia 
Governor Tim Kaine inexplicably requested that Jens Soering, a 
man convicted in the Virginia State courts of the brutal and 
violent murders of two residents of central Virginia, in my 
congressional district, be transferred from Virginia's prison 
system to Germany.
    Soering is currently serving two life prison sentences. 
However, if he is transferred to Germany, it is my 
understanding he could be released within 2 years. The decision 
to approve or deny a proposed transfer is committed to the 
discretion of the Department of Justice and in your hands.
    I understand that the seriousness of the offense and the 
potential public outrage at the transfer are factors that the 
Department considers in evaluating such transfers. I can attest 
to you that these crimes were heinous and that the public 
outrage about the potential transfer is extremely high. I have 
been contacted by many constituents expressing opposition to 
this transfer, including some involved in the original case.
    In addition, I forwarded to you a letter signed by 75 of 
the 100 members of the Virginia House of Delegates opposing 
this transfer. The letter was signed by Republicans, Democrats 
and Independents alike, and in addition, Governor McDonald 
contacted the Department to revoke Governor Kaine's request.
    And I wonder if you can tell us what the status is of that 
process.
    Mr. Holder. Well, first, I would agree with you. Those were 
heinous and very serious crimes.
    The question I think that the Justice Department has to 
deal with is to see what, in fact, is the position of the State 
going to be, whether or not the revocation recision by Governor 
McDonald of what Governor Kaine did is in fact going to be 
upheld by the courts in Virginia? So until that, I think, 
determination is made, the Justice Department really cannot 
act. And so I guess we are waiting to see that.
    But I will agree with you, we are talking about the most 
serious crimes that one can imagine. Lives were lost as a 
result of the actions taken by this defendant. And in making 
any kind of assessment, that would be uppermost in our minds. 
But I guess we are waiting to see what the resolution is of the 
contrary positions of the two Governors.
    Mr. Goodlatte. Well, General Holder, it seems to me that 
you, in your capacity, could make the decision not to honor the 
recommendation of Governor Kaine whether or not Governor 
McDonald's letter overturning Governor Kaine's request is 
recognized or not. It doesn't seem to me that you need to get 
to that question in order to simply make a determination. And I 
find it hard to believe that the Department could contemplate 
transferring this man to Germany when the public outrage over 
this is so overwhelming; and justice is being served by the 
Virginia criminal justice system, and then, in Germany, he 
could be released in as little as 2 years or less, certainly 
not what has occurred in Virginia, which has required him to 
serve, so far, the full two life sentences that have been 
imposed upon him.
    Mr. Holder. Well, I think in making the determination, it 
makes a lot of sense to get what the State's position is 
actually going to be.
    And I think that, in that case, it makes sense for us to 
await the official determination of what the position of the 
State of Virginia is with regard to the request that has been 
made.
    But factoring that in, I want to emphasize that I have been 
a prosecutor, for a good portion of my life. I have prosecuted 
violent crime cases and dealt with them as a judge. This is as 
serious a case as I have seen. And that would obviously be 
something that would weigh into any decision that we had to 
make.
    Mr. Goodlatte. Let me ask another question about another 
issue that is pending here in the Congress and of importance.
    Congressman Barney Frank has introduced H.R. 2267, 
legislation to repeal the recently enacted Unlawful Internet 
Gambling Enforcement Act, a bill that passed with overwhelming 
bipartisan support. His repeal bill also legalizes and 
regulates Internet gambling at the Federal level under the 
Financial Services Regulatory Agency.
    Among its various provisions, the bill, in my opinion, guts 
the Wire Act, U.S.C. 1084, by stating that the Wire Act will 
not apply to any activities regulated by the licensing scheme 
envisioned under the bill.
    So I would like to know, first, do you believe that 
currently illegal offshore gambling operations should be 
legalized by the Federal Government, and do you support or 
oppose this legislation?
    Mr. Holder. We do not support the legalization of offshore 
gambling.
    When one looks at the negative impact that that has had on 
the lives of individuals, potential that it has for problems 
that it might create, even on a community-wide basis, it just 
seems to, I think, us that that is not something that we 
necessarily want to support.
    Mr. Goodlatte. Well, thank you. I appreciate your 
understanding the risks that Internet gambling imposes on our 
citizens.
    Madam Chairman, I see my time has expired.
    Ms. Jackson Lee. The time has expired of the gentleman from 
Virginia. Thank you so very much.
    The Chair will now recognize the gentlelady from 
California, Ms. Waters, for 5 minutes.
    Ms. Waters. Thank you very much.
    I want to try and get responses on three issues that I 
have.
    The first one that I talked about was diversity, 
particularly focused on FBI, and whether or not you have the 
responsibility for working with the FBI to ensure that the 
discrimination complaints that have come from within are being 
settled and whether or not there is a backlog. And I will be 
writing you some more on this, but I want to hear from you just 
briefly what you know and what you have done.
    Mr. Holder. Well, just 2 weeks ago, I issued a directive, a 
diversity plan, for the Department of Justice that includes all 
of the Department's components, including the FBI, the DEA, the 
ATF, and the other components that make up the Department.
    There are people who are going to be in place to monitor 
this situation, to monitor these diversity efforts. All of the 
components have to come back, I believe, by the end of June 
with what their plan is to diversify their ranks. This 
Department of Justice is committed to diversity. This 
Department of Justice is at its strongest----
    Ms. Waters. Do you still have backlogs in the FBI of 
discrimination complaints?
    Mr. Holder. I am sorry?
    Ms. Waters. Do you have a backlog of discrimination 
complaints in FBI?
    Mr. Holder. I don't know. I will have to check, and I can 
get back to you on that.
    Ms. Waters. All right.
    And that report is public, that information?
    Mr. Holder. The diversity plan?
    Ms. Waters. Yes.
    Mr. Holder. Yes.
    Ms. Waters. All right. We will get a copy of that.
    Quickly, moving to antitrust, the big one, the media merger 
of the purchase of NBC by Comcast and how you view these 
things. We are concerned because of the size of this purchase, 
and we are concerned that this consolidation will cause Comcast 
to own movie studios, Internet, cable, broadband, you name it. 
And some of these mergers, they don't have any public hearings 
on. We work with the FCC, and they did agree to extend the 
comment period. Now, what is your responsibility?
    Mr. Holder. Well, we certainly look at these for their 
impact on competition and whether or not they unnecessarily 
consolidate things that should be separate.
    The Justice Department does not typically hold hearings or 
does not hold hearings when we conduct our antitrust 
investigations. I understand that the FCC perhaps has had one 
or is planning to have one, and that certainly, I think, is in 
there for them to decide.
    The work that the Justice Department does is typically done 
in a nonpublic setting.
    Ms. Waters. Would you be advantaged in any way if you had 
information from a public hearing from all kinds of production 
groups and people involved in media about the lack of access to 
ownership and programming and management and all of that? Would 
that help you in any way with your decision?
    Mr. Holder. Sure. I mean, we make our best decisions when 
we have access to the greatest amount of information.
    Ms. Waters. So public hearings that would draw this 
information out could be helpful to you, is that right?
    Mr. Holder. It could be.
    But we will be taking our own steps to try to reach out to 
affected, potentially affected parties and individuals and get 
information from them. But certainly, anything that develops 
the record that gets more information out there that we have 
that we can have access to would be something that would be 
good.
    Ms. Waters. And can I have my staff talk with you about 
what steps you will be taking? We would like to know. Perhaps 
we can be of assistance, coming from the Los Angeles area, 
where we have lots of people in production, et cetera, that are 
really concerned about this purchase, okay?
    Mr. Holder. Sure. I would be glad to talk to you. But, 
again, there are limits that when we have ongoing 
investigations, there is only so much that we can discuss. But 
I think, in terms, there may be----
    Ms. Waters. Whatever you can discuss.
    Mr. Holder. There may be things we can discuss, though.
    Ms. Waters. And finally, let me just ask you about the 
militias and the right wing terrorist organizations.
    I am particularly concerned about the one who had planned 
to kill a police officer, and once the police arrived, that 
they would have a lot in plain view to kill. I haven't heard of 
terms like domestic terrorism. I am concerned about a possible 
Timothy McVeigh type incident with some of these militias. I 
know Homeland Security has some responsibility. What is your 
responsibility, and what are you doing?
    Mr. Holder. You know, I think you raise a very good point.
    We have focused a great deal on international terrorists, 
as we should, but we cannot take our eyes off the fact that we 
have within our own country domestic terrorism that we also 
must confront. The case that you described, the Hutaree case, 
is an example of that. And their plot to kill a police officer 
and then to try to kill more police officers who came to the 
funeral is an indication of the kind of activity, the kind of 
heinous acts that we have to be concerned with.
    If one looks at the statistics that have been developed, 
you see that there has been a pretty dramatic rise in the 
number of these domestic hate groups, and that gives us great 
concern.
    The FBI monitors these groups, always being mindful of the 
fact of that people have First Amendment rights. But we monitor 
these groups to make sure that they don't cross the line from 
that which is protected by the First Amendment and crosses into 
that which is criminal.
    Ms. Waters. So is there a formal kind of definition or way 
of approaching domestic terrorism and to raise the level of 
attention on domestic terrorism the way we have done on foreign 
terrorism?
    I don't hear it talked about. I don't hear anything coming 
over to us to talk about domestic terrorism. I did hear this 
morning that a kid was accused of being a terrorist in school 
because this autistic kid drew some pictures, what looked like 
violent pictures, but I have never heard of this kind of 
terrorism being described domestically. And what can you do to 
help focus this country and this Congress on domestic 
terrorism?
    Mr. Holder. Well, I start my day at 8:30 with a briefing 
with the FBI Director about----
    Ms. Jackson Lee. If the General can wrap up, the 
gentlelady's time has expired, but I will allow you to finish 
the answer, please.
    Attorney General Holder [continuing]. Where we review the 
threat stream for the past 24 hours. And a component of that 
conversation, that briefing, focuses on what is going on 
domestically. And so the American people should, I think, be 
reassured that their law enforcement agencies, the FBI, their 
Justice Department, is focused not only on international 
terrorism but on domestic terrorism as well.
    Ms. Waters. The gentlelady's time has expired.
    The gentleman from California, Mr. Issa, is recognized for 
5 minutes.
    Mr. Issa. Thank you, Madam Chair.
    General Holder, as I said in my opening statement, I am 
deeply concerned that a seated Member of Congress, a 
distinguished Member of this body, has alleged what amounts to 
three felonies. The former U.S. Attorney, now Senator, Arlen 
Specter, has confirmed that, in his opinion, if the allegations 
are true, they are felonies.
    What are you presently doing and what will you commit to 
do, including hopefully a special prosecutor or a special 
investigator, about these allegations by a former admiral in 
the Navy and now U.S. Congressman?
    Mr. Holder. Well, I can say that, with regard to the 
appointment of a special prosecutor, that is something that is 
done on a case-by-case basis.
    Mr. Issa. And what could be more a case by case than an 
allegation that this White House has committed three felonies 
in offering a Member of Congress a high-ranking position in 
this Administration in return for his getting out of the 
primary? What could be more appropriate than that? And if it is 
not appropriate and you are not conflicted, then what are you 
doing about it?
    Mr. Holder. Well, there are regulations that are in place. 
And there are requirements that have to be met before a special 
prosecutor, an independent counsel, is appointed. I have great 
faith in the people in the Public Integrity Section who would 
typically handle these kinds of matters. I was a member of the 
Public Integrity Section for 12 years.
    Mr. Issa. Fine. I sent you a letter, you have not responded 
to it. What is the response to investigating this? These are 
allegations of three crimes. There is an election to be held in 
a matter of days, greatly influenced in the entire State of 
Pennsylvania by these unanswered allegations of White House 
criminal activity?
    Mr. Holder. Well, I thought we had responded to your 
letter. If we had not, I apologize for that. These are matters, 
all of these matters, any matter that comes up like that are 
obviously fact-specific and deals a lot with what the intent of 
the person was. I am not speaking specifically about the matter 
that you have raised, because I don't talk about any matter 
that might come into the purview of the Department of Justice.
    Mr. Issa. Okay.
    Well, then let's talk hypothetical for a moment, Mr. 
General.
    Section 211, which prescribes what bribery is, the offer of 
a government job, which is Section 600, by an official; are 
these serious matters?
    Mr. Holder. Simply offering somebody a job?
    Mr. Issa. If I offer you a job in the White House, let's 
say Secretary of the Navy, in return for your doing something, 
such as dropping out of an elected office to clear a primary, 
is that a serious crime?
    Mr. Holder. Well, I think we are talking about more than a 
hypothetical now.
    Mr. Issa. I am asking if that hypothetical is a crime. You 
don't answer specifics, Mr. General.
    Do you answer hypotheticals? Is that a crime?
    Mr. Holder. I don't answer hypotheticals.
    Mr. Issa. Okay. So let me understand this. There has been 
an allegation by a Member of this body. The allegation is that 
he was offered a position, a high-ranking position in the 
Administration, in return for getting out of the primary, which 
he declined and stayed in the primary.
    You are saying, let the ethics section, the integrity 
section, handle it. You don't comment on it.
    Then I asked you, if allegations similar that I have 
alleged were true, would there be a crime? And you are saying 
you don't answer hypotheticals.
    Well, look, you are here before us today. If you won't 
answer literals and you won't answer hypotheticals, you don't 
answer or apparently investigate, we have an allegation of 
three felonies, the Congressman says are felonies and a seated 
U.S. Senator, a member of the same party has said is if true is 
a crime and you are not investigating whether it is a false 
statement by a Member of Congress or a crime by the White 
House, what are we to do.
    Mr. Holder. You see the danger in dealing with 
hypotheticals is because you can never spin out in its totality 
what a real case would look like.
    Mr. Issa. General Holder, it is not a hypothetical when 
Congressman Joe Sestak says he was offered a job by this White 
House in contradiction to at least three sections of the U.S. 
Code. I have asked you what you are doing about it and 
apparently you are not willing to say that it is being handled 
by the public integrity section. You are only willing to say 
that those kinds of things are handled.
    Have you put any attention into following up on our letter 
and the allegation of Congressman Sestak?
    Mr. Holder. As I said, I thought we had responded to your 
letter, but you are saying the premise----
    Mr. Issa. It could be in the mail, but it is very slow 
sometimes. We have not received it.
    Mr. Holder. I apologize if we have not done that. The 
premise that you make, though, that there are violations of 
these statutes, again, things that would have to be examined 
would have to be looked at by----
    Mr. Issa. I'm only asking you if you have followed up on 
the allegations by a Member of Congress and an assertion by a 
U.S. Senator. That is all I'm asking. I'm not asking for all 
the details of how you would follow up.
    Have you followed up on these allegations that we brought 
to your attention that, to be honest, national press has 
brought to your attention?
    Mr. Holder. As I said, it is the Department's policy not to 
comment on anything, not to comment on pending matters to say 
there is an investigation to say there is not an investigation, 
that is not the way in which the Department of Justice under 
Republican or Democratic attorneys general have conducted. That 
is not what we do. And that is the way I answered the question 
you pose to me.
    Mr. Issa. I'm sorry, you can't answer the question. I yield 
back.
    Ms. Jackson Lee. The gentleman's time has expired. The 
Chair is being sensitive to Members who are in the midst of 
questions so Mr. General, you will see the light red, but we 
want to allow Members to be able to finish their question and 
their answer. And Members, we recognize that there are people 
who are still traveling.
    With that, I will recognize in Pierluisi for 5 minutes.
    Mr. Pierluisi. Thank you, Madam Chair. Thank you again, 
Attorney General.
    I would like you to address a bit further the Arizona 
matter. I heard you say that you are looking into the matter. 
The way I see it, and you heard me before, I find the whole 
matter offensive on behalf of all Hispanics in America, but I 
bet I can speak for others as well. This is a Nation of 
immigrants. And most of them are either U.S. citizens or 
legally residing in this country. So I am very disturbed by 
this law. And regardless of the motives, I'm talking about a 
law that lends itself, on its face, to racial profiling.
    Now the way I see what the Department could be doing, I see 
that the Department could be doing any of three things. First, 
challenge the law in court, second, clarify its position on the 
preemption issue that this matter raises, and third, deal with, 
assuming the law ends up being in effect and it is not 
challenged, dealing with its implementation, civil rights 
actions to the extent that there are civil rights violations.
    So I just want you to be a bit more specific. What are you 
looking at? And what can we reasonably expect from the 
Department in this matter in the near future?
    Mr. Holder. Well, we are examining the law and trying to 
determine if it contravenes the Federal responsibility for the 
immigration question, whether or not what the Arizona 
legislature has tried to do is actually preempted by Federal 
law, by Federal statutes. In addition to that, we are looking 
at it from a civil liberties perspective to see whether or not 
the law contravenes Federal civil rights statutes. That 
inquiry, that look at the law is presently underway, and we are 
in the process of trying to determine what action, if any, we 
are going to take.
    Mr. Pierluisi. I see. If I have time, and I will add one 
thing that troubles me as a former attorney general, I think 
community policing is so effective in America, and this matter 
also raises the possibility of affecting the ability of local 
law enforcement to deal with our communities, gain the trust of 
residents in our communities when they are under siege by all 
crimes, not only immigration violations. So that troubles me. I 
would like to hear from you on that.
    Mr. Holder. Though I understand as I think I said before 
the frustration of people along the border and Arizona I guess 
here specifically one of the concerns I have is exactly the one 
that you have just talked about, and whether or not the passage 
of this law will serve as a wedge between law enforcement and 
the communities that law enforcement is supposed to serve.
    If a community feels that it is being treated unfairly, 
that it is being profiled, you are less likely to have people 
share information with law enforcement, you are less likely to 
have an ability to solve crimes in that community. And those 
are the kinds of issues that I think we have to take into 
consideration as we look at the law.
    Mr. Pierluisi. Thank you.
    Ms. Jackson Lee. The gentleman yields back?
    Mr. Pierluisi. I do.
    Ms. Jackson Lee. The gentleman yields back. We now 
recognize Mr. Coble for 5 minutes. The gentleman from North 
Carolina.
    Mr. Coble. Thank you, Madam Chairman. General, let me 
extend from my opening remarks this morning. What criteria, 
General, set apart Khalid Sheikh Mohammed and his co-
conspirators from other Gitmo detainees that require or who 
require civilian rather than military commission trials?
    Mr. Holder. Well, the determinations that I have tried to 
make in making assessments as to where these cases can be tried 
are case specific, where can the case best be tried. On the 
same day that I made the announcement that the case would be 
tried in a civilian court, I sent five or six other cases, I 
don't remember exactly how many, to military commissions. The 
question of military commissions deals in some ways with the 
acquisition of evidence on the battlefield. But we make these 
cases--I make these determinations on a case-by-case basis 
following a protocol that I have with--that is used by me and 
by the Department of Defense.
    And so each case is assessed and a determination made about 
where we can best try the case, where justice can best be 
accomplished.
    Mr. Coble. Thank you, General.
    General, you recently stated that the Department is still 
reviewing where to try Khalid Mohammed and his co-conspirators. 
What issues is the Department still addressing?
    Mr. Holder. Well we have not--there is a review underway 
about the determination that I made, I guess, back in November 
about the location of the trial. We take into account a variety 
of things: the reaction of political leaders in particular 
areas, the reaction of the public in that area. And we are 
taking into account a whole variety of things in making that 
determination. We are not ruling anything in or ruling anything 
out at this point. That review is still underway.
    Mr. Coble. General, how many venues are you considering?
    Mr. Holder. Well, I would say that we are considering a 
variety of places in which and forums in which that case might 
be held.
    Mr. Coble. I guess specifically what I am driving at is, in 
your opinion, does the capital venue statute that indicates the 
punishable by death violation shall be in the county where the 
offense was transmitted, would that limit it to New York, 
Pennsylvania and Virginia?
    Mr. Holder. Yeah, that is a very good point. That is a 
statute that we have to deal with in making these 
determinations. There is a statute that says if you are going 
to seek the death penalty, the trial has to occur in the place 
where the offense actually took place which does limit, in some 
ways, our ability as to where the trial could be venued, though 
there is some question about how directive, how strong that 
particular statute is. But that statute certainly is a factor 
that has to be taken into consideration.
    Mr. Coble. Thank you, General Holder.
    Madam Chair, I yield to the gentleman from Virginia my 
remaining time.
    Ms. Jackson Lee. The gentleman from Virginia is recognized 
for the remaining time.
    Mr. Goodlatte. I thank the gentleman for yielding. General 
Holder, following up to the comments of the gentleman from 
California, I'm not taking a position for or against the 
Comcast/NBC Universal merger, but I do want to make the point 
that I think the Department's job is to conduct a fair, 
thorough and expeditious review, apply the facts to the law and 
make a decision based on that analysis, and I have every 
confidence that you and the Department will do just that.
    Mr. Holder. Thank you.
    Mr. Goodlatte. I yield back the gentleman.
    Mr. Coble. I reclaim it and yield back, Madam Chairwoman.
    Ms. Jackson Lee. The gentleman yields back, and I now 
recognize the gentleman from Tennessee, Mr. Cohen for 5 
minutes.
    Mr. Cohen. Thank you, Madam Chair.
    General Holder, we had talked about racial disparities 
earlier last year when you were before us. And I have a bill 
which I have introduced, the Justice Integrity Act originally 
introduced also in the Senate by Senator Biden, and it was to 
look at a study of racial and ethnic disparities. We have held 
back on the bill at the request, I believe, of the Justice 
Department because you were doing an internal study. Have you 
concluded that study?
    Mr. Holder. The studies that we are doing are still, they 
are fairly close to, as I like to say, coming into a landing, 
and I'm starting to hear now back from the task forces that we 
created, and on the basis of some of the reports that I am 
receiving, I will be announcing a variety of things over the 
next 2 weeks or so. But the one that you are talking about, I 
have not yet seen a report.
    Mr. Cohen. When do you think you might see a report on that 
one? You don't have one on racial disparities yet, do you have 
others?
    Mr. Holder. Well, we certainly have, we have been looking 
at the question of looking at racial disparities, geographic 
disparities as well, with regard to the criminal law, and I 
have received a report on that. And we will be issuing some 
guidance in that regard very soon.
    Mr. Cohen. Very soon. That is good and that report will be 
released to the Judiciary Committee and the public, I presume?
    Mr. Holder. It is something that will be public. It will be 
certainly released in the field, and I'm sure that the public 
will have an ability to look at my pronouncement.
    Mr. Cohen. Also, I have introduced legislation which I will 
be introducing today to require States and localities that 
receive funds through the Byrne program, JAG program, to study 
racial and ethnic disparities in their criminal justice systems 
work to reduce those. Do you agree that States and localities 
have a responsibility to make sure Federal funds such as Byrne 
grants are not used to perpetuate in any way whatsoever racial 
and ethnic disparities in reports would be a good way to put 
them on notice and maybe ferret out those situations?
    Mr. Holder. Sure. The Byrne and JAG grants are one of the 
chief ways in which we support our State and local 
counterparts, and we would expect that that would be done in a 
nondiscriminatory manner and done in a way that would not 
promote disparities and that would be responsive to the needs 
of particular communities. We are trying to make sure that 
those grants further the cause of equal justice as opposed to 
retarding it.
    Mr. Cohen. I mentioned in my opening statement my support 
for Senator Webb's bill, which I believe Congressman Delahunt 
is a sponsor of here. Has the Justice Department done any, or 
intend to do any comprehensive looks at our sentencing laws and 
try to reform them so that they are in the 21st century?
    Mr. Holder. One of the task forces that I put in place has 
looked at the Federal sentencing laws, and it is as a result of 
that, again, there will be something issued very shortly from 
me to the field. We have looked at the Webb bill as modified 
and it is one that the Administration again has modified and 
now supports.
    Mr. Cohen. There was an April 22 Federal District Court 
sentencing ruling by Judge George Wu. Are you familiar with 
Judge Wu? He issued a 41-page written order concerning a man 
named Charles Lynch, who was convicted of medical marijuana 
dispensing, and in that opinion he said much of the problem 
could be ameliorated by the reclassification of marijuana from 
Schedule I.
    What are your thoughts that you could share with us about 
how the Department will approach a rescheduling hearing of 
marijuana, which is right now in the highest class that the 
Federal Government knows, means it is at a level with Dilaudid, 
opium, heroin, as far as being habit forming, addictive and 
troublesome and expensive and bad and all those other things?
    Mr. Holder. One has to look at the issue of marijuana in 
its totality. The Mexican cartels get the greatest amount of 
their revenue from the trafficking of marijuana. It is 
something that fuels, helps to fuel the violence we have seen 
in Mexico. It is potentially something that can--the 
trafficking of this substance can have an effect on violence in 
the United States.
    What the Administration has done is to say that in those 
States, where a determination has been made that medical use 
can be made of marijuana that we would not use our limited 
resources to go after marijuana being used in that way but to 
focus our attention on those people who are major traffickers 
of marijuana and other drugs that have such a negative impact 
on so many communities in this country.
    Mr. Cohen. If I could ask the Chair for just 30 more 
seconds. Thank you, Madam Chair.
    On that subject, I concur and commend you on that. But I 
would like to suggest that possibly the reason that there is 
such a demand for that product that causes all the violence is 
because it is illegal, and maybe if it wasn't a class 1 and 
maybe if there was some other determinations maybe you would, 
and obviously it must be popular some place with someone. And 
that is why maybe we should take into consideration the 
popularity and demand and maybe changing cultural norms and 
values and maybe supply and demand then we could reduce 
violence through another way, violence with violence, and 
violence with incarceration and instead kind of work our way 
through this, get to a higher place so to speak.
    Ms. Jackson Lee. The gentleman's time has expired.
    Do you have a response?
    Mr. Holder. Well, I would only say that I think one of the 
things we ought to try to do is reduce demand for marijuana and 
other drugs that will help our Mexican counterparts. It is, I 
think, the responsibility of the United States to try to do 
that. This Administration has tried to do that through the use 
of drug courts and treatment, added money for treatment 
facilities, and, I think, that is the way in which we can 
decrease the amount of violence that we see.
    Ms. Jackson Lee. The gentleman from Iowa, Mr. King is 
recognized for 5 minutes.
    Mr. King. Thank you, Madam Chair. General Holder, thanks 
for coming forward to testify today. I appreciate it. It is a 
long day. It comes to mind that Representative Chu spoke 
earlier in her opening remarks about how Arizona's immigration 
law institutionalizes racial profiling. And she also said that 
people are already being detained because they forgot their 
driver's license at home. Could you add some clarity to that 
statement for this panel, please?
    Mr. Holder. Well, I am not familiar with the incident 
perhaps that Congresswoman Chu was talking about. The concerns 
that I have expressed are with regard to the whole question of 
preemption and whether the statute gets into areas that are 
more properly handled by the Federal Government and what the 
impact of the law will be on law enforcement and its 
interaction, its relationship with certain communities in 
Arizona.
    Mr. King. Perhaps if I just state into the record that the 
Arizona law isn't an Act, it doesn't go into effect until 90 
days until its passage and signature by the Governor, then we 
could agree that any action that would be taking place on 
Arizona's immigration law would not take place until 90 days 
after it is signed by the Governor, and the balance of any 
activity might have been inspired by the press or public 
dialogue, but nothing on the authority of the legislation could 
possibly be taking place at this point. Would you agree?
    Mr. Holder. Again, I'm not familiar with the fact situation 
that she mentioned----
    Mr. King. Wouldn't that generally be the standard, though, 
if it were Federal law or a State statute that until it is 
enacted, it can't have an effect legally and so her remarks 
that she has made could not be relevant to the law's enactment 
itself?
    Mr. Holder. Again, I don't know whether some police officer 
thinking that the law is going to be taking effect has acted in 
a way that is inappropriate. I just don't know anything about 
the fact situation that she has described.
    Mr. King. Then let's try this down the path of the 
Constitution preemption which you mentioned. And as I 
understand Arizona law, and I could probably list a couple of 
minor exceptions, it mirrors Federal immigration law, and the 
question and the charge that seems to come from the President 
was that the Department of Justice was going to be looking into 
Arizona's immigration law and presumptive, presumably to 
evaluate its constitutionality, which you had referenced, and 
whether it would violate any Federal statute under that 
preemption clause. Could you, today, point to anything in the 
Constitution that would prevent Arizona from passing and 
enforcing immigration law provided it didn't go beyond the 
bounds of Federal immigration law within the idea of mirroring 
that Federal immigration law, and is there anything in the 
Constitution you could point to that would define Arizona's 
immigration law as unconstitutional or potentially 
unconstitutional?
    Mr. Holder. Well, the regulation of our borders and the 
immigration that occurs by crossing our borders is something 
that is inherently something I believe for the national 
government to take responsibility for.
    As I indicated, I understand the frustration that people 
feel in Arizona. We have not done, I think, enough as a Nation 
to deal with a very real problem that people in the Southwest 
border have to deal with. But it is really more than them. It 
really is a national problem. I think that is why the President 
has said that a comprehensive look at this issue, dealing with 
the causes of illegal migration as well as what we do with 
those people who are here without documentation is a way in 
which we can hopefully solve this problem.
    Mr. King. But General Holder, now we have now digressed 
into policy, and as far as specificity, with regard to the 
Constitution or current Federal statute, and you have already 
gone in and investigated this, I presume, at the direction of 
the President, so you should know today whether there is a 
constitutional point that can be made or a Federal statutory 
point that can be made, and I will suggest that I have looked 
at this and I have asked our attorneys to look at this, and we 
have not found a constitutional argument that would indicate 
that Arizona has violated the Federal Constitution, nor have we 
found a way that Arizona has gone beyond the bounds of Federal 
immigration statute. And I point out also that in the 
Constitution there is nothing there that defines immigration 
law as the exclusive province of the Federal Government. Only 
two places, protection from invasion and then Article I, 
Section 8 that says to establish a uniform rule of 
naturalization, the balance of that is implicit. And case law 
supports local law enforcement enforcing Federal immigration 
law. So how would you respond to that?
    Mr. Holder. Our view is still underway. We have not made a 
determination yet whether or not Federal law preempts the 
Arizona statute. That is something that we are examining. I was 
saying that was one of the two bases upon which we might take 
some legal action. But we are not at that stage. We are not at 
that point where we have made a determination that, in fact, it 
contravenes Federal law.
    Mr. King. Just to respond briefly to that inconclusive 
answer. I would point out there have been a significant amount 
of resources that have beeninvested in looking at Arizona 
immigration law. It appears to follow a pattern of political 
actions of your office. And the ACORN investigation couldn't 
seem to get started with one single individual or one single 
investment of dollars, which has this country entirely tied up 
in knots and it threatens the very, the underpinnings for our 
Constitution are legitimate elections. The threat to our 
legitimate elections, that is the one thing that would break, 
tear this country down is if we lost our confidence in the 
electoral process.
    Yet we can't investigate ACORN, but we can investigate 
Arizona and we still can't find out what might have brought 
your attention to that, as you haven't pointed out anything in 
the Constitution or Federal statute or case law that would 
direct anyone to look into the Arizona law. So I would be happy 
to conclude my statement with that and yield back the balance 
of my time.
    Ms. Jackson Lee. Thank you. The gentleman's time has 
expired.
    Mr. Holder. I just want to make one point very clear. The 
determinations that we make as to what statutes we look at, 
what cases we investigate, are done in an apolitical way. I am 
quite proud of the time I have spent in this Department of 
Justice. I consider myself a career guy. I have served very 
proudly under both Democratic and Republican attorneys general. 
I understand the traditions of this Department. I will not 
allow this Department of Justice to be politicized. People may 
not agree with the decisions that I make. But I want the 
American people to know, right or wrong, the decisions I make 
are based on the facts and the law and have no basis in 
politics. That is not what this Justice Department is about. 
That is not what this attorney general is about.
    Ms. Jackson Lee. The gentleman from Georgia, Mr. Johnson, 
is recognized for 5 minutes for his questioning.
    Mr. Johnson. Thank you, Madam Chairwoman.
    General Holder, there have been a number of myths that have 
been perpetrated by the politicians seeking to inject politics 
into the political process. And one of these myths that has 
once again reared its ugly head has been the notion that the 
Obama administration and you as the attorney general place the 
U.S. at risk by prosecuting terrorists in Federal Court, 
including the Christmas Day bombers and the 9/11 defendants, 
and now the Christmas Day underwear bomber and the gentleman 
who was recently arrested for leaving a car packed with 
explosives in Times Square.
    And now prior to this issue becoming a political football, 
the Bush administration had tried numerous terrorist suspects 
in the Federal courts, including the shoe bomber, Richard Reid, 
whose case is strikingly similar to the underwear bomber's 
case, and also Zacarias Mousawi, the so-called 20th 9/11 
hijacker. And is it true that according to the Bush 
administration numbers itself, that there have been over 300 
antiterrorism cases that were prosecuted in civilian courts 
after 9/11----
    Mr. Holder. Yes, that is a number that I think is accurate. 
And I think that we learn from that number and from what we 
have been able to do in the 15, 16 months or so that this 
Administration has been in existence that our Federal criminal 
courts can handle these matters. History shows that. The facts 
demonstrate that.
    The concern I have is that to the extent that people want 
to take away from us the ability to bring cases in the Federal 
courts, you take away from us an extremely valuable tool. You 
actually weaken this country, you weaken our ability to fight 
this war against those who would do this Nation harm. We have 
to be able to use our military power. We need to use our 
military commissions. We need to use our diplomatic power, our 
economic strength, as well as the Federal criminal justice 
system if we are going to be really effective and ultimately 
win this war. We should not have this tool taken away from us.
    Mr. Johnson. Well, now tell me during the Bush 
administration when these 300 or so cases, antiterrorism cases, 
were making their way through Federal Court to final 
disposition, the success rate in those prosecutions was 
phenomenal, was it not?
    Mr. Holder. I don't have the exact numbers but the numbers 
were in the very, very high 90 percentage rate.
    Mr. Johnson. Now if you could, I have been having trouble 
with this. If you could tell me what has actually changed from 
the time that these 300 Bush administration cases were 
prosecuted in the civilian courts to the current time, where we 
say that the civilian courts are inadequate, ill equipped and 
incompetent and unable to do what it has already established a 
track record of doing? What has changed now other than the 
ascent of the current party in power to that position?
    Mr. Holder. Well, I often ask myself that same question as 
I look at people who hold themselves out as experts, pundits on 
television and who I think were notably silent when actions 
that we are taking now were taken by the Bush administration 
previously. I will leave to them to decide exactly what it is 
that has caused them to change their views when we have a 
consistent policy when it comes to the use of the Federal 
criminal justice system to handle these terrorism cases. But I 
do think that your suggestion that the party that is now making 
these determinations has changed, is certainly a factor.
    Mr. Johnson. Well, if I might add a little commentary or 
editorial commentary onto the back of that, I think it is 
another illustration of the politicization of the notions of 
justice and fair play that I have come to respect during my 30 
years as a lawyer.
    Mr. Holder. I would say that is something that is extremely 
worrisome. I would think that the one place in which politics 
might not enter is when we talk about issues involving the 
national security that we could as Americans put aside the idea 
of gaining political advantage when the stakes are as high as 
they are.
    We are talking about protection of the American people, 
protection of American interests around the world. If ever 
there was something that should unite us--I'm not saying we 
have to agree on everything--but the notion that I see, I 
think, too often about using this particular subject to try to 
gain political advantage is, from my perspective, very 
distressing.
    Ms. Jackson Lee. The gentleman's time is expired.
    Mr. Johnson. Thank you, Madam Chair.
    The Jackson Lee. The gentleman from Texas, Mr. Poe, is 
recognized for 5 minutes.
    Mr. Poe. Thank you Madam Speaker.
    Thank you for being here. We know that terrorists use 
weaknesses in our immigration laws and our border security laws 
to come into the United States to carry out attacks. So 
Arizona, since the Federal Government totally fails to secure 
the border, desperately then passed laws to protect its own 
people. The law is supported by 70 percent of the people in 
Arizona, 60 percent of all Americans and 50 percent of all 
Hispanics according to the Wall Street Journal NBC poll done 
just this week.
    And I understand that you may file a lawsuit against the 
law. It seems to me the Administration ought to be enforcing 
border security and immigration laws and not challenge them and 
that the Administration is on the wrong side of the American 
people. Have you read the Arizona law?
    Mr. Holder. I have not had a chance to. I have glanced at 
it. I have not read it.
    Mr. Poe. It is 10 pages. It is a lot shorter than the 
health care bill which was 2,000 pages long. I will give you my 
copy of it if you would like to have a copy. Even though you 
haven't read the law, do you have an opinion as to whether it 
is constitutional?
    Mr. Holder. I have not been briefed yet. We as I said have 
had underway a review of the law. I have not been briefed by 
the people who have are responsible for that review.
    Mr. Poe. Are you going to read the law?
    Mr. Holder. I am sure I will read the law in anticipation 
of that briefing. I know that they will put that in front of 
me, and I will spend a good evening reading the law.
    Mr. Poe. Well, I have gone through it, and it is pretty 
simple. It takes the Federal law and makes it, enacts it as a 
State statute, although it makes it much more refined in that 
it actually says in one of the sections that no State or 
subdivision may consider race, color, national origin in 
implementing the requirements of any subsection of this law. It 
seems to outlaw racial profiling in the law. I know there has 
been a lot of media hype about the legislation.
    Do you say see a difference in the constitutionality of a 
statute and the constitutionality of the application of that 
statute? Do you see there is a difference in those two?
    Mr. Holder. Sure, there is a potential for challenging a 
law on its face and then challenging a law as it is applied. So 
there are two bases for challenging a particular statute.
    Mr. Poe. And when do you think you will have an opinion as 
to whether the law is constitutional?
    Mr. Holder. I have used this term a lot, but I think this 
is relatively soon. I think that we have to. There has been 
much discussion about this. The review is underway. The 
Department of Justice, along with the Department of Homeland 
Security, is involved in this review, and I would expect our 
view of the law will be expressed relatively soon.
    Mr. Poe. You have some concerns about the statute, and it 
is hard for me to understand how you would have concerns about 
something being unconstitutional if you haven't even read the 
law. It seems like you wouldn't make a judgment about whether 
it violates civil rights statutes, whether it violates Federal 
preemption concepts, if you haven't read the law. So can you 
help me out there a little bit how you can make a judgment call 
on that, but you haven't read the law and determined whether it 
is constitutional or not?
    Mr. Holder. What I have said is I have not made up my mind. 
I have only made the comments that I have made on the basis of 
things I have been able to glean by reading newspaper accounts 
obviously on television, talking to people on the review panel, 
on the review team looking at the law. But I have not reached 
any conclusions as yet with regard to it. I have just expressed 
concerns on the basis of what I have heard about the law. But I 
am not in a position to say at this point, not having read the 
law, not having had the chance to interact with the people 
doing the review exactly what my position is.
    Mr. Poe. The 287(g) program is Federal law that helps 
implement Federal immigration statutes and gives States the 
authority to implement and enforce Federal statutes. Do you 
believe that is constitutional?
    Mr. Holder. Section 287?
    Mr. Poe. 287(g).
    Mr. Holder. Yes. I believe that is constitutional.
    Mr. Poe. Just a couple more questions in the minute that I 
have left.
    The folks in Arizona, it seems to me, are like the folks in 
Texas. They see people coming across the border, illegal entry, 
people being in the country illegally, still against the law. 
The Federal Government is supposedly, according to you and 
others, that is the Federal Government's job to secure the 
borders. We secure the borders of foreign countries; Third 
World countries protect their borders better than we do. I 
think for political reasons we don't secure the border. This is 
not the first Administration that hasn't secured the border. I 
hope it is the last Administration so that it actually does 
secure the border.
    The law, it seems, should be enforced and if the Federal 
Government performed its role, Arizona wouldn't need to have 
these desperate measures. Other States are talking about the 
same thing. They wouldn't have to have these measures if the 
Federal Government just did its job.
    Last question. Do you think if the Governors asked for the 
National Guard on the border that that is a constitutional 
request?
    Ms. Jackson Lee. The gentleman's time has expired. I will 
allow the General to respond to his question.
    Mr. Holder. As I said earlier, I think we have to have as a 
comprehensive look at this. And we have to have, we have to 
secure our borders. We have to also deal with the millions of 
people who are here in an undocumented way. This is a national 
issue. It requires, I think, a national response, not 
necessarily, even understanding the frustration the people feel 
in Arizona, but not doing this State by State. This is 
something that requires our national government working with 
the States to come up with a solution, a comprehensive, a 
comprehensive solution.
    Ms. Jackson Lee. Ms. Chu of California is recognized for 5 
minutes.
    Ms. Chu. Thank you so much.
    I have grave concerns about the civil rights aspect of the 
Arizona law, SB 1070, as I said in my opening statement. And I 
believe that it is unconscionable for any of our citizens to 
live in fear and carry multiple forms of identification with 
them everywhere they go, and this is something one would expect 
from a Cold War eastern bloc country, not America in the 21st 
century.
    I know you have said you are looking into a review of this 
law and that you will make a final decision relatively soon I 
think is what you said. But if you decide not to challenge the 
law, do you intend to monitor its implementation to address 
concerns about civil rights violations?
    Mr. Holder. I think we would do that in any case. I don't 
know exactly again what we are ultimately going to do with 
regard to our review of the law, but with regard to the law, 
and any other law, that exists in this regard, we would 
constantly be monitoring it to see if there are civil rights 
violations, civil rights concerns, that are generated by the 
implementation of the law should we decide not to challenge it, 
for instance.
    Ms. Chu. There are also three lawsuits that have been filed 
against this law, the National Coalition of Latino Clergy and 
Christian Leaders filed a suit claiming it is illegal because 
it usurps Federal authority in immigration enforcement and it 
could lead to racial profiling, and two police officers are 
suing because it would hinder police investigation in Hispanic 
prevalent areas and violates the 14th Amendment rights of equal 
protection. Would you consider intervening any litigation by 
any other party?
    Mr. Holder. Again, our review is underway, and exactly what 
procedural step we are going to take we have not yet decided. I 
will need to interact with our team that has been looking at 
the law and has been conducting this review and on the basis of 
that interaction, we will decide what action we are going to 
take, if any.
    Ms. Chu. Well, another troubling aspect of the Arizona law 
is that it requirements local law enforcement to confirm with 
Federal authorities the legal status of anyone who is arrested 
regardless of the offense. And in many cases, it would take 
days for the Department of Homeland Security to respond to such 
a request. If the police decide not to press charges based on 
the underlying offense, wouldn't it violate the rights to due 
possess if the person were held without charges for extended 
periods? And also, do you believe that the Federal Government 
could realistically and promptly respond to all such inquiries 
for every person arrested in Arizona?
    Mr. Holder. That is an interesting question. We are working 
with our partners at the Department of Homeland Security. And I 
am sure that one of the questions we are trying to deal with is 
what is the impact of this statute when it goes into effect? 
What is the potential impact of that statute on the Federal 
Government and then the resources that the Federal Government 
would be able to bring to bear on this very difficult issue. So 
that is a part of the mix that we will consider in determining 
what action we will take.
    Ms. Chu. Well, in 1996, the Office of Legal Counsel 
concluded that the State and local police lacked legal 
authority to detain individuals solely on the suspicion of 
being in the country illegally. However in 2002, assistant 
attorney general Jay Bybee issued an Office of Legal Counsel 
memorandum concluding that Federal law did not preempt State 
police from arresting aliens on the basis of civil 
deportability.
    Have you officially asked the Office of Legal Counsel to 
reserve this policy?
    Mr. Holder. I have not as yet, but as we go through our 
review, one of the things that has to be taken into account is 
the 2002 opinion that you reference, its continued viability, 
and whether it is a correct assessment of the law. That is all 
a part of what our review team is, in fact, looking at.
    Ms. Chu. Well, why would you keep that 2002 opinion in 
force while it is under review if it is under review, 
especially given the widespread opposition and civil liberties 
complaints?
    Mr. Holder. Well, I don't think, as I said, that it is 
going to take us an extended period of time to decide what 
action we are going to take, but before we decide to take any 
action, I think we need to understand this statute in its 
totality, the impact that it will have, understand and take 
into account what policies the Federal Government has put in 
place including OLC opinions, and history that is involved in 
all of this.
    There is a wide variety of things that go into the 
determination that ultimately we will have to make, and I want 
to make sure that we take as comprehensive a look as we can 
before we make what I think is going to be a very consequential 
decision.
    Ms. Chu. And turning toward another issue that the 
Department of Justice actually had some action on with the 
investigation against Maricopa County Sheriff Arpaio for civil 
rights violations and unfairly targeting Hispanics and Spanish-
speaking people, what is the status of that investigation by 
the special litigation section against Sheriff Arpaio?
    Mr. Holder. That matter is under investigation. It is under 
review. I can't say an awful lot about that because it is a 
matter that is under review. The sheriff has unfortunately 
decided not to cooperate with the investigation, and so I think 
that makes our task a little more difficult, but it is a matter 
that is underway. The review is underway.
    Ms. Chu. Thank you. I yield back.
    Ms. Jackson Lee. The gentlelady's time has expired. The 
gentleman from Arizona, Mr. Franks, is recognized for 5 
minutes.
    Mr. Franks. Thank you, Madam Chair.
    General your office announced some months ago that Khalid 
Sheikh Mohammed would be tried in a civilian trial in New York 
and I have to be very direct with you. Some of us were kind of 
stunned because of the discovery that this offered terrorists 
their ability to penetrate much of our intelligence gathering, 
the potential of them having a platform before the world, a 
recruiting mechanism, it just seemed like a terrorist's dream. 
And I just have to be honest with you. I just think it was an 
incredibly misguided comment. But ostensibly, it was so that we 
could show that America's system was superior to the others in 
the world. And that sounded like at least an honorable 
commitment.
    But then the Administration said, there were several voices 
in the Administration that said, well, if they are somehow not 
convicted that we won't let them go.
    In an interview with NBC news to November 18, 2009, 
President Obama declared that Khalid Sheikh Mohammed will be 
convicted and executed. And then in testimony before the U.S. 
Senate, you stated that in relation to the prosecution of KSM 
``failure is not an option.''
    Now I don't know how that undermines our system if we 
really hold that notion because you as the attorney general of 
the United States and certainly Mr. Obama must know that KSM 
and his co-conspirators are afforded, in our civilian courts, 
the presumption of innocence. And in light of this, does the 
Department honestly believe that it could successfully defend 
against an assertion by KSM and others that these statements 
have tainted a civilian jury or commission members to such 
degree as to deny them the presumption of innocence?
    Mr. Holder. Well maybe I can clear this up once and for 
all. When I said failure is not an option that was not a 
prediction about the course of the trial. It was from my 
perspective an exhortation similar to the way in which a coach 
talks to his players and tells them you guys got to go out 
there and win this game because failure is not an option. That 
is what I was saying.
    Mr. Franks. I will give you that. But the notion then that 
the Obama administration says that Khalid Sheikh Mohammed will 
be convicted and executed, the notion that the Administration 
has said many times that we will not let them go regardless. 
Not only does that undermine our system, but does it not afford 
the attorneys of KSM the opportunity to say, well, you have 
tainted the jury pool here and we are not afforded the 
presumption of innocence? That seems like that is not a hard 
question, but I don't know if you are willing to address it or 
not.
    Mr. Holder. We would have an extensive voir dire that we 
would have to go through, and I am sure you could find people 
who would be able to judge the case based on only the evidence 
and testimony that was introduced during the course of the 
trial. The notion that somehow, some way, something that I have 
said has so tainted a jury or so tainted a potential jury pool 
that we would not be able to give Khalid Sheikh Mohammed and 
his confederates a fair trial I think is belied by the facts 
that we have done this in the past with high profile terrorism 
cases, in the Bush administration. We have cases that are 
underway right now in New York that are being handled I think 
in an appropriate way and defendants are being given fair 
trials.
    So I think we have done it in the past. We can do it in the 
future and I don't think anything anybody has said in this 
Administration has tainted our ability or impacted negatively 
our ability to----
    Mr. Franks. Khalid Sheikh Mohammed will be convicted and 
executed. You don't think that that is potentially suggesting 
that there may not be a presumption of innocence?
    Mr. Holder. Well, from my perspective, I think that the 
lawyers who will try this case are experienced, the evidence 
that we have is good, and I am hopeful that we will have a good 
outcome. That prediction on my part doesn't necessarily mean 
that I think the ability to say that the trial was fair is in 
some way----
    Mr. Franks. General, respectfully, I don't think you are 
going to answer the question. But I do think you put a judge in 
the impossible position of either trying to do what is right 
and protect the country or break the rules as a judge that he 
is required to--I mean, Khalid Sheikh Mohammed, the 
Administration is all too quick to say well this person was 
waterboarded. If you are a defense attorney there, you have got 
a plethora of options to try to undermine the trial. I think 
everyone knows that. I certainly do. I think you do, sir. So 
let me shift gears.
    You stated on Meet the Press last weekend that if 9/11 
mastermind Khalid Sheikh Mohammed were brought to the U.S. for 
a trial and acquitted, that if he were acquitted that ``there 
are other mechanisms we might have to employ like immigration 
laws that we could use, the possibility of detaining him using 
the wars of law. Now I think you meant laws of war and I think 
that is understandable.
    Were you referring to the PATRIOT Act provision found in 
section 236(a), the Immigration Nationality Act which allows 
for an indefinite detention of an alien you certify is a 
terrorist? Is that your basis for saying that?
    Mr. Holder. Well, I am not sure about the particular 
section but the laws of war certainly allow us to detain people 
who are engaged in conflict with the United States. They 
certainly have habeas corpus rights and can challenge that 
detention as has happened in the Federal District Court here in 
Washington, D.C. So, yes, there is the possibility that Khalid 
Sheikh Mohammed could be detained under the laws of war.
    Mr. Franks. Well, my final question, Madam Chair, is what, 
sir, is your backup plan to protect the safety of Americans if 
you cannot rely on an immigration detention law? What is the 
plan here if those things fail.
    Mr. Holder. Well, as I think I indicated in the interview 
that you mentioned, I have great confidence in our abilities in 
the first instance to try the case fairly and effectively and 
to get a good result.
    Beyond that, though, there are other options that we have 
beyond the trial. There are immigration laws. There are the 
laws of war, and with regard to Khalid Sheikh Mohammed, there 
are other charges that could be brought against him because of 
other acts that he did beyond what happened on September 11.
    Mr. Frank. I guess time will tell. Thank you, Madam Chair.
    Ms. Jackson Lee. The gentleman's time has expired.
    I am now very delighted to yield to the distinguished new 
Member of this Committee, Mr. Deutch from Florida, for 5 
minutes.
    Mr. Deutch. Thank you, Madam Chair. I am delighted to have 
the opportunity. Attorney General Holder thank you for being 
here. I wanted to just spend a minute after some lengthy 
discussions today about terrorism and preventing terrorism and 
trying terrorists. On the prevention piece in particular the 
terrorists screening database which, as I understand, is 
comprised of those individuals who are known or reasonably 
suspected to be or have been engaged in conduct constituting in 
preparation for, in aid of or related to terrorism, those are 
the individuals included.
    The question is, and what I would like to hear from you 
about is the Department's view on selling weapons to those 
terrorism suspects, and if you could speak to the government's 
determination that someone may be too dangerous to board a 
plane but not too dangerous to purchase an assault rifle, and 
then specifically, if you can clarify the Administration's 
current position on halting gun sales to suspected terrorists 
and whether the Administration supports congressional efforts 
to keep weapons out of the hands of those individuals that are 
contained within the terrorist screening database.
    Mr. Holder. We certainly want to work with Congress with 
regard to that question about the access that people in the 
terrorist watchlist have to obtaining weapons. We have to keep 
in mind, and this will be part of the dialogue, that the FBI is 
notified when somebody on the terror watchlist, in fact tries 
to obtain a weapon. And there are, I have to be careful, but 
there are law enforcement equities, reasons, why that is 
something that is valuable to us. And so I think taking into 
account the law enforcement equities we have, the law 
enforcement realities that we now have, we would want to work 
with Congress to talk about the very real issue that you have 
raised.
    Mr. Deutch. General Holder, if in order to balance these 
law enforcement equities, wouldn't it be possible to both 
prevent those weapons, those assault rifles in particular, from 
being sold to that suspected terrorist, while at the same time, 
still deriving the benefit of these equities and notifying the 
FBI?
    Mr. Holder. I don't want to get into too much detail with 
regard to techniques and how the FBI uses actions by certain 
people on terrorist watchlists and what that leads to, but it 
is part of the conversation that I think we should have in 
dealing with a very real issue. And I don't mean to denigrate 
the issue that you have raised. But the very real issue that 
you have raised is something I think we should work together 
and try to resolve.
    Mr. Deutch. I appreciate that. I would point out as we try 
to prevent all forms of terrorism the terrorists in Mumbai that 
killed 173 people, dozens of those murdered and injured were 
murdered or injured with an AK-47, and it does seem, and I 
appreciate your willingness to work with us, but if we have an 
opportunity to keep those sorts of weapons in particular out of 
the hands of would be terrorists, it would be therefore 
possible for us to prevent tragedies of that magnitude from 
occurring here in this country. And I look forward to having 
the opportunity to work together to make that so.
    Mr. Holder. Please do not takeay what I said as disagreeing 
with your last statement. There are a variety of things that we 
need to do and can appropriately do. I just, as I said, would 
want to make sure that in looking at this question, looking at 
this problem, that we surface all of the law enforcement 
equities that we have and deal with the very real problem, the 
very real concern that you have identified especially in the 
last statement that you made.
    Mr. Deutch. I appreciate that, General, and I hope we have 
the opportunity to do that soon. Thank you, and I yield back 
the time.
    Ms. Jackson Lee. The gentleman yields back his time and it 
gives me great pleasure again to yield to another distinguished 
new Member of the Committee, Mr. Polis from Colorado, for 5 
minutes.
    Mr. Polis. Thank you, Madam Chair. My first question is 
with regard to Federal policy with regard to Drug Enforcement 
Administration and marijuana policy building off of what my 
colleague, Mr. Cohen, asked earlier.
    I certainly applaud it and agree with warm representing one 
of the States that has medical marijuana law and regulates the 
sale of marijuana the memo describing the intent of DEA and 
U.S. attorneys. I would like you to describe the objective 
processes the DEA and U.S. attorneys are using in order to make 
a determination about whether individuals are in ``clear and 
unambiguous compliance with State law.'' How is that 
determined?
    Mr. Holder. Well, it is done, and people get, I guess, 
tired of hearing this but it is true, it is done on a case-by-
case basis. We look at the State laws and what the restrictions 
are, how the law is constructed, and then there are a number of 
factors in that memo that are guides. Is marijuana being sold 
consistent with State law? Are people or firearms somehow 
associated with the sale? There are a variety of factors that 
are contained within the memo that went out from the deputy 
attorney general that the United States attorneys and assistant 
U.S. attorneys are supposed to apply, supposed to consider when 
trying to make the determination about whether or not Federal 
resources are going to be used to go after somebody who is 
dealing marijuana.
    Mr. Polis. I would certainly encourage the question of 
whether or not it is consistent with State law would certainly 
be left to State enforcement actions. In particular, I brought 
to your concern in a letter of February 23 requesting a 
clarification of your policies regarding medical marijuana, 
with regard to several statements that were made by one of your 
agents in Colorado, Jeffrey Sweeten, along the lines of the 
quote, as quoted in the paper, the time is coming when we go 
into a dispensary, we find out what their profit is, we seize 
the building and we arrest everybody. They are violating 
Federal law. They are at risk of arrest and imprisonment.''
    I would like to ask what steps you might take to make sure 
that the spirit of the enforcement mechanisms that you outlined 
to me in the answer to your previous questions are not 
contradicted by the statements of agents that, in fact, then 
strike fear into legitimate businesses in the eyes of our 
States.
    Mr. Holder. It is incumbent upon me as attorney general to 
make sure that what we have set out as policy is being followed 
by all of the components within the Department of Justice and 
to the extent that somebody at the DEA, somebody at some 
assistant United States attorney office is not following that 
policy, it is my responsibility to make sure that the policy is 
clear, that the policy is disseminated, and that people act in 
conformity with the policy that we have determined.
    Mr. Polis. Do you believe, do you agree that statements 
that could be recently taken as threatening to businesses that 
are legal in our State are, in fact, contrary to your stated 
policy?
    Mr. Holder. Well, again, if the entity is, in fact, 
operating consistent with State law and is not, does not have 
any of those factors involved that are contained in that deputy 
attorney general memo, and given, again, the limited resources 
that we have and our determination to focus on major 
traffickers, that would be inconsistent with what the policy is 
as we have set it out.
    Mr. Polis. Moving on to immigration, I am worried about 
denying immigrants access to Federal judicial review in light 
of the Arizona law when they will be dragged into State courts 
in a fashion when the ultimate responsibility and authority 
regarding immigration is supposed to be that of the Federal 
Government. Are we worried about Arizona courts effectively 
trying to enforce Federal immigration laws?
    Mr. Holder. One of the primary concerns that we have is 
whether or not the impact of the Arizona statute preempts, 
whether it improperly interferes with what is ultimately a 
Federal responsibility. Wwhether or not Federal law preempts 
the Arizona statute, is one of the things that we are looking 
at.
    Mr. Polis. And finally, there is a significant backlog in 
our immigration courts, and I would like you to briefly outline 
the steps that you are taking to restore fairness and 
efficiency to immigration courts which have been identified by 
several studies as a need of major structural reforms as well 
as additional financial resources.
    Mr. Holder. We have really been engaged this fiscal year 
and next fiscal year in hiring a very substantial number of 
immigration judges which is one of the problems we had. We 
simply need more people to process these cases. We have also 
engaged in I think training to make sure that the people who 
serve as judges and who are a part of the system are conducting 
themselves appropriately. We have a new chief judge who I think 
is doing a good job in the training component, and we are 
trying to make sure that he and the people in the system have 
all the tools that they need so that our responsibility with 
regard to immigration is done in an appropriate way.
    Mr. Polis. Thank you, and I yield back.
    Ms. Jackson Lee. The gentleman has yielded back.
    General, I believe that we are better as a Nation for 
having a U.S. Department of Justice, and I think we are better 
as a Nation to have a lawyer who represents the American 
people. I think it is important, as I close, to try to give you 
an opportunity to clarify a few points that may still be 
somewhat unclear.
    One is an inquiry that I would appreciate if you would 
respond in writing within the parameters of that investigation 
and that is of course regarding the Harris County jail which is 
located in Harris County Texas. There has been an inquiry and a 
comment as to what Federal funds under the Department of 
Justice could be helpful to local jurisdictions with jail 
overcrowding problems impacting mental health issues and the 
health and security of the incarcerated persons.
    And if I could have that in writing I would appreciate it. 
But I would like to pursue to be clear on the record there are 
a lot of overlapping jurisdictions. I happen to be on homeland 
security and there are overlapping jurisdictions between the 
Department of Justice and homeland security. So let me just 
focus on what the Administration is for and what it is against, 
what positions it has taken.
    Has the administration Department of Justice taken any 
position to be against strong border security both at the 
northern and southern border of the United States?
    Mr. Holder. No. Not at all. We understand that the primary 
responsibility for protecting our borders is a national 
responsibility. It is one that this Administration takes very 
seriously. It is one component that we think has to be taken 
seriously as part of the comprehensive view of immigration 
reform.
    Ms. Jackson Lee. And if this Congress was to undertake what 
we call a comprehensive immigration reform on the issue of 
benefits falls under the Judiciary Committee, does the 
Administration hold that that reform is mutually exclusive to 
being strong in its position on securing the border, both 
northern and southern border?
    Mr. Holder. I think if one looks at the totality of this 
problem, there are a lot of moving pieces but there is not 
necessarily tension between them. How we deal with people who 
are here and undocumented; the whole question of what benefits 
people have, should have, and should not have; the maintenance 
of strong borders along our southern frontier and our northern 
frontier are all things that have to be a part of this 
solution. And the resolution of that big problem does not 
necessarily mean that there is a tension between the component 
parts.
    Ms. Jackson Lee. So fixing, for example, the opportunity 
for a child not born but raised in the United States to attend 
college, for example, which is a problem plaguing a lot of 
nonstatus immigrants, is not mutually exclusive if that was to 
occur if Congress was to move from the Administration's 
position on securing the borders.
    Mr. Holder. Well, yeah. We can certainly secure the 
borders. And then the whole question of how we deal with people 
who are here illegally and putting them on a pathway to 
citizenship, which is what we talked about and which has been 
talked about in previous Congresses. I think these are all the 
kinds of things that we need to discuss.
    Ms. Jackson Lee. Following up on the Arizona law, it is my 
understanding--and I think you have made it clear, but I think 
it is important--is there is nothing in your testimony that 
would suggest that you would not read this bill, but presently 
you have tasked your staff to do a thorough review of this 
legislation at this point, is that my understanding?
    Mr. Holder. I am old enough now that I don't read things 
too far in advance and then forget them before I need to know 
them. Believe me, the statute will be read. I will understand 
it. I will review all the reports that the review team puts 
before me. I will meet with that review team. And, on the basis 
of all of that, make an informed decision.
    Ms. Jackson Lee. We would not want the record to reflect 
that America's lawyer did not read either legislation we wrote 
or legislation that was relevant that was written by any State.
    But pursuing that question, I first focused on Federal 
preemption, and I think my colleagues have probed that 
sufficiently, but if you want to make that clear that you 
understand what that means in terms of the assessment of a 
State law.
    But I want to raise in terms of the Arizona law this 
question of potential racial profiling, and I say it in this 
sense. You don't have jurisdiction over the census, but there 
are reports suggesting that States like--and they are still 
members of the larger body of States, albeit they are unique 
States--California, New York, Arizona, and Texas, among others, 
have been impacted negatively by a lot of, should I say, 
reflections on immigration in terms of account.That truly 
impacts an authority embedded in the Constitution and certainly 
designated to the Department of Commerce to count everybody, 
and it does not put qualifications on who gets counted.
    On the question of racial profiling, if your team is 
reviewing this and if you read this law and there is grounds 
for seeing that this broadly, without basis, racially profiles, 
I think one of our Members indicated that you might be stopped 
for a traffic, that is a legal contact, and you might have 
someone knock on your door trying to solicit funds for the 
local police department, I don't know if that is a legal 
contact or not. But if you find that there is a racial profile 
which is under jurisdiction of the Justice Department, for 
example, if you find that there is racial profiling going 
forward on Pakistani Americans--obviously, the Pakistani 
Americans or Pakistanis have been in the news. I tell you that 
the community is frightened. What is the position of the 
Department of Justice on unfair racial profiling within your 
jurisdiction?
    Mr. Holder. I think that, first and foremost, people have 
to understand that racial profiling is not good law 
enforcement; and we should understand that those who want to do 
this Nation harm are trying to take advantage of the 
possibility of racial profiling.
    What you see is their desire to come up with people who 
they call have clean skins, people who do not fit profiles, 
people who do not come from certain countries, people who come 
from the United States, people who do not look like what you 
would expect a terrorist to look like. Those are the people who 
they are trying to recruit. And if we restrict ourselves to 
profiling we will be handing a tool to those who seek to do 
this Nation harm. And so that is certainly in that context.
    But racial profiling just more generally is never good law 
enforcement. It has all kinds of collateral negative impacts 
that drive wedges between law enforcement and certain 
communities. There is no good basis. I have never seen a good 
basis for racial profiling.
    Ms. Jackson Lee. And as your staff reviews in particular 
the Arizona law, I would imagine, without predicting all that 
they review, that is certainly an element as you review the 
Arizona law as relates to the stopping and arresting 
individuals with surnames and other aspects of that law.
    Mr. Holder. I think we will look at the law as it is 
written, look at the law as it is applied, potentially applied, 
in trying to make our decision about whether or not we should 
take any action with regard to it.
    Ms. Jackson Lee. Let me also--thank you--just to follow up 
and just put into the record, some language that I paraphrased 
dealing with the Clayton Act, Section 7.
    The Act seeks to capture anticompetitive practices in their 
incipiency by prohibiting particular kinds of conduct not 
deemed in the best interest of a competitive market. If there 
is ever a question of a competitive market, I think, or one 
that we are attempting to have competitive, it is the aviation 
industry. As I read the law, and I would like you to correct me 
if I am incorrect, it seems as if submissions dealing with 
aviation mergers is presented to the DOJ, but there is notice 
given to the FTC. And if you would either correct that or 
suggest that it is. And if you would give the procedure, if 
that is the case, as to whether or not the FTC is in fact just 
notified and the DOJ takes the lead. Or my question would be 
whether the DOJ would take the lead.
    The second question would be, and I just want this to be 
further confirmed, have you set or has the Justice Department 
set a December, 2010, deadline for your review of this present 
merger in particular that I have mentioned, and that is 
Continental Airlines and United?
    And if you speak just from the law, the Clayton Act, 
Section 7, or any aspects of antitrust law is, obviously, 
appropriate, is the question of pricing and price increase, are 
those variables that will be under the eye and scrutiny of the 
Department of Justice?
    And, lastly, I would ask--and this is a pointed question. I 
want to pay tribute to Chairman Conyers, who developed an 
Antitrust Task Force under his initial leadership of this 
Committee, showing how important it is that a vigorous review 
taking into consideration President Theodore Roosevelt's 
initial I guess thought on this process of conglomerates 
recognizing that we are a capitalist society. I understand one 
of his quotes is that we have to save capitalism from the 
capitalists.
    But Chairman Conyers thought the antitrust review was 
extremely important, and so we had a task force that we 
ultimately merged into one of our Subcommittees, and the 
question that I now pose is, which I think someone has asked on 
another approach, whether there is any politics that would play 
in any decision that you would make on really any matter, but 
in this instance, for example, that one of the parties involved 
happens to be housed in Illinois? All of these comments that 
are going around, and again I said to you that one of the CEOs 
said this was a done deal, this will be done by, we see no 
problem in its completion--I yield to the General.
    Mr. Holder. Well, the Justice Department has primary 
responsibility for the assessment of the Continental/United 
merger and whether or not that has an anticompetitive impact. 
There is no deadline with regard to how long it will take us to 
do that. We will do the job as best we can and use the amount 
of time that we need, and I can assure you that political 
considerations will not be a part of that process.
    As I said, we have an Antitrust Division that I think has 
been revitalized by the woman who heads it now, the Assistant 
Attorney General, Christine Varney. She has been I think 
appropriately aggressive in looking at mergers and will do so 
with regard to this one. I am confident that we will give this 
a good, thorough, vigorous look and make a decision on the 
basis of that examination.
    Ms. Jackson Lee. Let me close very quickly. I know that you 
have been very gracious. Just give me these last two points 
that I wish to clarify, and that is a question of national 
security.
    I started out by saying that you have traversed a lot of 
land fields, a lot of mines, and I believe deliberation is key 
to being an American and as well the lawyer for America. There 
is a lot of talk about the initial decision for Khalid Sheikh 
Mohammed, politics and whether or not we said something first. 
I complimented the DOJ for its deliberation and its 
studiousness. I would like you to clarify that.
    And I will say this. The comments made by a President, a 
Commander-in-Chief, who is also a politician and a citizen, are 
among many comments that have been made. The President has a 
right to make comments, because he has the First Amendment 
right of freedom of speech.
    My understanding is that lawyers go into courtrooms many 
times around America, in this instance, U.S. Attorneys, against 
all kinds of comments being made in the general forum. But that 
does not take the place of a vigorous prosecutorial 
presentation, as I understand it.
    So if you would comment and clarify again with the Times 
Square bomber whose family members came and encouraged that 
individual to participate fully, and I think you said--there is 
so many bombers, but let me just finish the sentence, and I 
will clarify--but came and asked them to fully participate and 
to give answers, and that individual was initially questioned 
under civilian justice Miranda rights. And, of course, that was 
the Christmas Day bomber. Yet the Times Square bomber likewise 
provided additional enhanced information. Give us your sense 
that that does not undermine the justice system in this country 
and the ability to defend the American people against terrorism 
and does not show weakness as it relates to national security.
    Mr. Holder. I think all that I can point to is the facts 
and history, which has shown that the giving of Miranda 
warnings has not had a negative impact on our ability to get 
information from people charged with terrorist offenses.
    One can look at Abdulmutallab in Detroit; Shahzad here, the 
Times Square bomber; Headley, the person in Chicago; all of 
whom were given their Miranda rights and nevertheless decided 
to continue talking, sharing information, and sharing 
intelligence with us. There is a misconception that people have 
that the giving of Miranda warnings necessarily means that 
somebody is going to stop talking. That is inconsistent with 
the facts.
    The facts in the cases that I have just mentioned, and 
certainly what I think you see through the criminal justice 
system is that the determination that people make as to whether 
or not they are going to continue to talk or talk at all to law 
enforcement is not determined solely by Miranda warnings. There 
is a lot more that goes into it: the rapport that interrogators 
are able to make with people they are questioning and the 
strength of the evidence of the case that we can bring.
    I actually think that we also have to consider the reality 
that once a person is given Miranda warnings and if that person 
decides he wants to take advantage of them and get a lawyer 
involved in the processes, that frequently a defense attorney 
looking at the facts that are arrayed against his client 
frequently becomes an advocate on behalf to try to convince 
that person to cooperate with the government in the hope that a 
sentence would be lessened. So that even where Miranda warnings 
have that initial impact of stopping an information flow, it 
does not necessarily mean that that flow of information is 
forever stopped.
    But I think one thing that I would really want to clear up 
is this whole notion that the giving of Miranda warnings 
necessarily means that people stop talking. That is 
inconsistent with the facts.
    Ms. Jackson Lee. My final question to you is something both 
of us have spoken about, and I think it is very close to your 
personal beliefs. Chairman Scott has worked very closely on 
this whole broad issue of juvenile crime, juvenile justice, and 
we have managed with his leadership I believe to pass out of 
this Committee something called the Promise Act. But I want to 
point--and that is looking at best practices to deal with the 
question of juvenile justice.
    You have a section that deals specifically with the issues 
dealing with juveniles. If we look at our history over the last 
two decades, we really have done poorly. We had two 16-year-
olds, among others, shot and killed at a 3-year-old's birthday 
party in New York. Tens upon tens of juveniles have been 
murdered in Chicago. The lacrosse murder at my alma mater, 
University of Virginia, and down in Houston, a fine college 
student at a party shot dead without any hopes of survival.
    What is the focus of the Department as relates to juvenile 
violence and also the access of juveniles to guns, and how can 
we work together as a Committee and a Department of Justice and 
the Administration on this ongoing sickness and violence?
    Mr. Holder. Well, I don't know if you remember that in 
Chicago, I would say late last year, there was an incident 
where a young man who was taped being killed by a gang, other 
young people, when a board hit him over the head. Arne Duncan 
and I, the Secretary of Education and I, went out to Chicago to 
assess what had happened there and to get a better 
understanding of what was going on in Chicago with regard to 
youth violence. That has led to an effort that--I keep saying 
this--that very soon the Administration is about to announce 
with regard to how we are going to deal with this issue of 
proposals that we have with regard to this issue of youth 
violence in a select number of cities where we are trying a 
variety of different things and see what actually works.
    When we deal with the problem of youth violence, I think 
too often we think of it in a microcosm; and we don't 
understand that what we are talking about, in essence, is the 
future of this Nation. And kids who can't go to school and feel 
safe don't learn as well. Violence has negative impacts on the 
lives of children who are exposed to it as the children get 
older. So we want to try to deal with this problem.
    As we like to say, to be not tough on crime but to be smart 
when it comes to crime, and to come up with solutions that will 
prevent youth violence to the extent that we can, but then deal 
with the impact of people who are either victims of youth 
violence, or who witness violence. Because that also is 
something that has an impact on young people and impacts them 
as they mature.
    Ms. Jackson Lee. And guns and juveniles.
    Mr. Holder. Obviously, a very large problem. The prevalence 
of guns in certain communities, the possession of guns by 
juveniles and the way in which they use them is a primary 
concern. A disproportionate number of these unfortunate 
homicides happen because too many young people have too easy 
access to guns. We have to deal with that.
    Ms. Jackson Lee. Let me thank you very much for your 
openness and your integrity and honesty during these hearings.
    Let me as well thank Chairman Conyers for convening this 
hearing and for the leadership that he has given on any number 
of these issues that we have addressed throughout this hearing.
    This will conclude our questioning. I will add that there 
will be potentially, potentially a number of hearings on some 
of the questions that Members have asked, some having to do 
with the antitrust question and mergers. I would hope that the 
Justice Department would receive the transcripts of those 
hearings as they might be very helpful in the deliberation for 
those particular issues. I acknowledge that the General is 
nodding ``yes'' on those comments.
    And I would like to thank you, Attorney General Holder, 
again for being with us today.
    Without objection, Members will have a minimum of 5 
legislative days to submit any additional written questions for 
you which we will forward and ask that your answer be forwarded 
to us as promptly as you can and that they be made part of the 
record.
    Without objection, the record will remain open for 5 
legislative days for the submission of other additional 
materials, including those from the Department of Justice. And 
I noted for the record that you indicated that you would 
respond to a number of Members, including the Chair's 
questions, by writing; and we appreciate that.
    I believe the hearing has been a useful contribution to our 
efforts to help ensure that the Nation's premier law 
enforcement agency is dedicated to being a shining example not 
only in how effectively it pursues its cases but equally in how 
it respects the questions that we hold particularly near and 
dear, and that is the fundamental question of freedom that is a 
hallmark of American democracy. Today, I believe we made one 
more step toward promoting democracy in this Nation and 
protecting the Constitution as it should be.
    General Holder, thank you for your presence here today; 
and, with that, the hearing is adjourned.
    Mr. Holder. Thank you.
    [Whereupon, at 3:45 p.m., the Committee was adjourned.]


                            A P P E N D I X

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               Material Submitted for the Hearing Record

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


















































































































































































































































































                                 
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