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


 
  COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS FOR 
                                  2011 

_______________________________________________________________________

                                HEARINGS

                                BEFORE A

                           SUBCOMMITTEE OF THE

                       COMMITTEE ON APPROPRIATIONS

                         HOUSE OF REPRESENTATIVES

                      ONE HUNDRED ELEVENTH CONGRESS
                             SECOND SESSION
                                ________

    SUBCOMMITTEE ON COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES
                ALAN B. MOLLOHAN, West Virginia, Chairman
 PATRICK J. KENNEDY, Rhode Island       FRANK R. WOLF, Virginia
 CHAKA FATTAH, Pennsylvania             JOHN ABNEY CULBERSON, Texas
 ADAM SCHIFF, California                ROBERT B. ADERHOLT, Alabama
 MICHAEL HONDA, California              JO BONNER, Alabama
 C.A. ``DUTCH'' RUPPERSBERGER, 
   Maryland
 JOSE E. SERRANO, New York
 PATRICK J. MURPHY, Pennsylvania    


 NOTE: Under Committee Rules, Mr. Obey, as Chairman of the Full 
Committee, and Mr. Lewis, as Ranking Minority Member of the Full 
Committee, are authorized to sit as Members of all Subcommittees.
              John Blazey, Dixon Butler, Adrienne Simonson,
              Diana Simpson, Darek Newby, and Brad Daniels,
                           Subcommittee Staff
                                ________

                                 PART 6
                                                                   Page
 Department of Justice Fiscal Year 2011 Budget Overview...........    1
 Federal Bureau of Investigation Fiscal Year 2011 Budget Overview.  185
 Bureau of Alcohol, Tobacco, Firearms and Explosives Fiscal Year 
2011 Budget Overview..............................................  273
 Bureau of Prisons Fiscal Year 2011 Budget Overview...............  361
 American Federation of Government Employees--Council of Prison 
Locals............................................................  529
 Office of Justice Programs Fiscal Year 2011 Budget Overview......  567
 Legal Services Corporation Fiscal Year 2011 Budget Overview......  653
                                ________
         Printed for the use of the Committee on Appropriations


PART 6--COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS 
                                FOR 2011
                                                                      ?

  COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS FOR 
                                  2011

_______________________________________________________________________

                                HEARINGS

                                BEFORE A

                           SUBCOMMITTEE OF THE

                       COMMITTEE ON APPROPRIATIONS

                         HOUSE OF REPRESENTATIVES

                      ONE HUNDRED ELEVENTH CONGRESS
                             SECOND SESSION
                                ________
    SUBCOMMITTEE ON COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES
                ALAN B. MOLLOHAN, West Virginia, Chairman
 PATRICK J. KENNEDY, Rhode Island
 CHAKA FATTAH, Pennsylvania
 ADAM SCHIFF, California
 MICHAEL HONDA, California
 C.A. ``DUTCH'' RUPPERSBERGER, 
Maryland
 JOSE E. SERRANO, New York
 PATRICK J. MURPHY, Pennsylvania    FRANK R. WOLF, Virginia
                                    JOHN ABNEY CULBERSON, Texas
                                    ROBERT B. ADERHOLT, Alabama
                                    JO BONNER, Alabama

 NOTE: Under Committee Rules, Mr. Obey, as Chairman of the Full 
Committee, and Mr. Lewis, as Ranking Minority Member of the Full 
Committee, are authorized to sit as Members of all Subcommittees.
              John Blazey, Dixon Butler, Adrienne Simonson,
              Diana Simpson, Darek Newby, and Brad Daniels,
                           Subcommittee Staff
                                ________
                                 PART 6
                                                                   Page
 Department of Justice Fiscal Year 2011 Budget Overview...........    1
 Federal Bureau of Investigation Fiscal Year 2011 Budget Overview.  185
 Bureau of Alcohol, Tobacco, Firearms and Explosives Fiscal Year 
2011 Budget Overview..............................................  273
 Bureau of Prisons Fiscal Year 2011 Budget Overview...............  361
 American Federation of Government Employees--Council of Prison 
Locals............................................................  529
 Office of Justice Programs Fiscal Year 2011 Budget Overview......  567
 Legal Services Corporation Fiscal Year 2011 Budget Overview......  653
                                ________
         Printed for the use of the Committee on Appropriations
                                ________
                     U.S. GOVERNMENT PRINTING OFFICE
 56-795                     WASHINGTON : 2010

                                  COMMITTEE ON APPROPRIATIONS

                   DAVID R. OBEY, Wisconsin, Chairman

 NORMAN D. DICKS, Washington
 ALAN B. MOLLOHAN, West Virginia
 MARCY KAPTUR, Ohio
 PETER J. VISCLOSKY, Indiana
 NITA M. LOWEY, New York
 JOSE E. SERRANO, New York
 ROSA L. DeLAURO, Connecticut
 JAMES P. MORAN, Virginia
 JOHN W. OLVER, Massachusetts
 ED PASTOR, Arizona
 DAVID E. PRICE, North Carolina
 CHET EDWARDS, Texas
 PATRICK J. KENNEDY, Rhode Island
 MAURICE D. HINCHEY, New York
 LUCILLE ROYBAL-ALLARD, California
 SAM FARR, California
 JESSE L. JACKSON, Jr., Illinois
 CAROLYN C. KILPATRICK, Michigan
 ALLEN BOYD, Florida
 CHAKA FATTAH, Pennsylvania
 STEVEN R. ROTHMAN, New Jersey
 SANFORD D. BISHOP, Jr., Georgia
 MARION BERRY, Arkansas
 BARBARA LEE, California
 ADAM SCHIFF, California
 MICHAEL HONDA, California
 BETTY McCOLLUM, Minnesota
 STEVE ISRAEL, New York
 TIM RYAN, Ohio
 C.A. ``DUTCH'' RUPPERSBERGER, 
Maryland
 BEN CHANDLER, Kentucky
 DEBBIE WASSERMAN SCHULTZ, Florida
 CIRO RODRIGUEZ, Texas
 LINCOLN DAVIS, Tennessee
 JOHN T. SALAZAR, Colorado
 PATRICK J. MURPHY, Pennsylvania    JERRY LEWIS, California
                                    C. W. BILL YOUNG, Florida
                                    HAROLD ROGERS, Kentucky
                                    FRANK R. WOLF, Virginia
                                    JACK KINGSTON, Georgia
                                    RODNEY P. FRELINGHUYSEN, New   
                                    Jersey
                                    TODD TIAHRT, Kansas
                                    ZACH WAMP, Tennessee
                                    TOM LATHAM, Iowa
                                    ROBERT B. ADERHOLT, Alabama
                                    JO ANN EMERSON, Missouri
                                    KAY GRANGER, Texas
                                    MICHAEL K. SIMPSON, Idaho
                                    JOHN ABNEY CULBERSON, Texas
                                    MARK STEVEN KIRK, Illinois
                                    ANDER CRENSHAW, Florida
                                    DENNIS R. REHBERG, Montana
                                    JOHN R. CARTER, Texas
                                    RODNEY ALEXANDER, Louisiana
                                    KEN CALVERT, California
                                    JO BONNER, Alabama
                                    STEVEN C. LaTOURETTE, Ohio
                                    TOM COLE, Oklahoma

                 Beverly Pheto, Clerk and Staff Director

                                  (ii)


  COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS FOR 
                                  2011

                              ----------                              

                                           Tuesday, March 16, 2010.

              DEPARTMENT OF JUSTICE FY2011 BUDGET OVERVIEW

                                WITNESS

HON. ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES

                 Opening Statement of Chairman Mollohan

    Mr. Mollohan. Mr. Attorney General, welcome to the hearing 
this afternoon, and welcome to everyone to this afternoon's 
hearing on the Department of Justice and its fiscal year 2011 
budget request. Our witness this afternoon is the Honorable 
Eric Holder, Attorney General. Thank you for appearing today, 
Mr. Attorney General. We appreciate it.
    I would like to start off by recognizing just a few of the 
numerous positive developments we have seen at the Department 
of Justice over the last year. Under your leadership, the 
Department has shown a renewed commitment to its criminal 
enforcement missions, including international organized crime, 
drug trafficking, and civil rights.
    You have placed a new emphasis on funding effective state 
and local grant programs, including the COPS hiring program, 
which saved or created nearly 5,000 jobs through the stimulus 
provided by this Committee last year.
    We have also seen a new and fairly comprehensive commitment 
by the Department of Justice to begin addressing the truly 
deplorable law enforcement situation in Indian Country. This 
commitment is reflected in your budget request, which has 
Indian Country increases almost across the board, and we 
certainly welcome that, as we initiated such investments in 
this very Committee last year.
    Finally, I have been pleased to see that violent crime 
rates have continued to decrease over the past two years 
despite significant economic distress that seemed likely to 
produce the opposite result. To the extent that the Department 
of Justice is a national law enforcement leader, you share in 
that success along with your state and local partners.
    While we enjoy and appreciate the successes, Mr. Attorney 
General, the Department also has its share of challenges. One 
of the most visible of these challenges is the enormous and 
growing workload of white-collar crime cases. Your current load 
of mortgage, securities, and government fraud cases covers 
billions and billions of dollars of realized losses, and you 
have only just started to scratch the surface.
    Another looming issue is the burgeoning federal inmate 
population, which is increasingly outstripping the capacity of 
our prison system.
    Perhaps you have had no greater challenge since arriving at 
the Department of Justice than working to fulfill the 
President's commitment to close the detention facilities at 
Guantanamo Bay. The process of closing Guantanamo actually 
began under President Bush. He worked to reduce the detainee 
population by more than 500 detainees, all without involvement 
by the Congress, and without any publicly discernible process 
for choosing whom to release and under what terms.
    This Administration replaced that ad hoc system with a 
formalized, consistent process for reviewing each detainee and 
determining the safest, most appropriate disposition for him.
    Your system ensures that the Government's military, 
intelligence, law enforcement, homeland security, and 
diplomatic communities have reviewed each case and come to 
agreement on each outcome.
    I think having such a system that we can sit here and 
discuss today, in a way that we never could have under an ad 
hoc process, is an achievement in its own right. While 
reasonable people might disagree about some of the specific 
outcomes your system produced, I don't think anyone should 
dispute that the system itself was well reasoned and had 
integrity.
    Your process ultimately produced recommendations to bring a 
small number of Guantanamo detainees here to the U.S. for 
prosecution. Those recommendations have generated an enormous 
amount of debate and engendered an entrenched opposition that 
would like to limit detainee prosecutions exclusively to the 
military commission system.
    I support the reformed military commission process and 
believe that there are times when a commission may be the only 
appropriate forum based on considerations like admissibility of 
evidence or the need to protect intelligence sources and 
methods. But there are equally valid reasons why an Article III 
or civilian court may be just as necessary and just as 
appropriate. Article III trials can be significantly shorter, 
given their broader authority to accept guilty pleas. Some of 
our allies will not cooperate with our prosecution efforts 
outside of the civilian system. Some cases present legal or 
operational issues that require the accumulated legal 
precedents and rules of courtroom procedure that have developed 
over hundreds of years in the Article III courts.
    These are things that the relatively new military 
commission system, no matter how valuable, simply cannot 
provide right now.
    For these reasons, I think it would be a mistake to 
categorically deny you access to the civilian system, 
especially in light of its established track record of success 
in terrorism prosecutions.
    Let us not forget that the Article III system has safely 
and effectively tried and convicted hundreds of terrorists. 
Today there are more than 300 international or domestic 
terrorists incarcerated in civilian prison facilities.
    The military commission system, by way of comparison, has 
produced three prosecutions, two of which came from guilty 
pleas.
    I think the results speak for themselves. Officials from 
the former administration also support the civilian trial 
option and believe that precluding civilian trials out of hand 
is a dangerous proposal. The decision about whether to try a 
case in a civilian court is best left to the Department of 
Justice to determine, void of politics, just as was done in the 
previous administration.
    I am sure that we will be discussing these issues in detail 
throughout the afternoon. There is also a lot of interest on 
all sides about the final venue determination for the 9/11 
trials, which I understand is still under consideration. We 
really can't discuss the merits of the venue until it has been 
determined, but I would like to give you an opportunity to 
explain to us the underlying criteria that are being used to 
make forum and venue determinations for the Article III and 
military courts so that we can understand the considerations 
and constraints that are involved in that process.
    In a moment we will have you provide an oral summary of 
your testimony, Mr. Attorney General. Your written statement, 
of course, will be made a part of the record.
    But before we do that, however, I would like to turn to the 
Subcommittee's Ranking Member, Mr. Wolf, for any opening 
remarks that he would like to make.

                     Opening Statement of Mr. Wolf

    Mr. Wolf. Thank you, Mr. Chairman. Mr. Attorney General, we 
welcome you to Committee, we look forward to your testimony. 
Thank you.
    Mr. Mollohan. Mr. Attorney General.

                  Testimony of Attorney General Holder

    Mr. Holder. Good afternoon, Chairman Mollohan, Ranking 
Member Wolf, and distinguished members of the Subcommittee.
    Today it is my privilege to discuss the President's 
Department of Justice budget for fiscal year 2011, and to 
provide an update on the Justice Department's progress, top 
priorities, and future plans.
    But first let me thank you for your ongoing support of the 
Department's work and your recognition of its essential role in 
protecting our Nation's people, as well as our highest 
principles.
    When I met with this Subcommittee last April, I pledged 
that under my leadership the Justice Department would 
vigorously pursue a specific and critical set of objectives--
combating terrorism, fighting crime, and enforcing our laws in 
a neutral and in a non-partisan way--and reinvigorate the 
Department's commitment to integrity, transparency, and 
results.
    I believe we are on the right path to achieving these 
goals. Although unprecedented challenges and new demands have 
emerged, our key priorities remain clear, and ensuring the 
safety of the American people continues to be our paramount 
responsibility.
    Over the last year, we have enhanced our national security 
programs and capabilities. We have also strengthened efforts to 
protect our environment, as well as our most vulnerable 
communities. We have reinvigorated our mission to safeguard 
civil rights in our workplaces, our housing markets, our voting 
booths, as well as our border areas. And as part of our focus 
on securing our economy and combating mortgage and financial 
fraud, the Department is now spearheading the Financial Fraud 
Enforcement Task Force that President Obama launched last year.
    The President's budget request of $29 billion demonstrates 
a strong commitment to the Justice Department's key priorities. 
Now let me assure you that in distributing and using these 
funds we will think carefully and we will think strategically 
and we will act to ensure accountability as well as 
transparency.
    As you have seen, the President's budget requests $300 
million in program increases to help strengthen national 
security and to counter the threat of terrorism. These 
resources will enable us to expand on the progress that we have 
made in the last year. Due to the vigilance of our law 
enforcement and intelligence agencies, we have succeeded in 
identifying and averting plots against the Nation, some known 
to the public, many not, including one of the most serious 
threats since September the 11th of 2001. A few weeks ago 
Najibullah Zazi, the mastermind behind a plot to bomb New York 
City's subway system, pleaded guilty to three criminal charges. 
Four others have also been charged as a result of our 
investigation. This attempted attack on our homeland, on our 
most populated city, was real, it was in motion, and it would 
have been deadly. But because of careful analysis by our 
intelligence agents and prompt actions by law enforcement, we 
were able to thwart a potential disaster as we have repeatedly 
done over the last year.
    Just last month, again in New York City, Aafia Siddiqui, a 
United States trained Pakistani physicist, was convicted of 
attempted murder and armed assault. She had shown a clear 
intent to kill Americans, and at the time of her arrest 
possessed documents that referred to a ``mass casualty attack'' 
and listed specific locations, including the Empire State 
Building, the Statue of Liberty, and the Brooklyn Bridge.
    And last week in Philadelphia, an American citizen was 
charged with conspiring to provide material support to 
terrorists and to commit murder overseas.
    Now these recent cases remind us that terrorists' methods 
are evolving, as are the types of individuals involved in 
terrorist activities. We face a serious, capable, and 
determined enemy in the war that we are fighting. This 
underscores why the Justice Department must have the capacity 
to respond effectively and to respond quickly, and our actions 
over the past year, I believe, provide evidence that we are 
making significant advancements in combating these threats.
    Now despite this recent progress, however, we cannot become 
complacent, and we must not, and we will not, lose focus in our 
efforts to bring terrorists to justice.
    Now, I realize that there are different views on how best 
to approach this work. This is a very legitimate and robust 
conversation that we should have about it, but we cannot allow 
the politics of fear to drive us apart. Facts, facts, not fear, 
must be the basis of all our discussions. Now, more than ever, 
the American people deserve this.
    Again, we are at war and we must use every instrument in 
our power, including the full scope of our military, law 
enforcement, intelligence, and diplomatic capabilities to win 
this war, but in the pursuit of victory we must not turn our 
backs on what has made our Nation an example to all the world.
    Today our challenge is not only to remain safe, but also to 
be true to our heritage, true to our principles, and true to 
our best selves. This is the Justice Department's most urgent 
and most essential work.
    Once again, I thank you again for supporting us. I look 
forward to continue to work with this Subcommittee and also 
with Congress, and I would be glad to answer any questions that 
you might have.
    [The information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
                  DISPOSITION OF GUANTANAMO DETAINEES

    Mr. Mollohan. Thank you, Mr. Attorney General.
    I would like to inform the Subcommittee that Mr. Wolf and I 
will take 20 minutes at the beginning of our questioning, and 
the rest of the Subcommittee on first round will have 10 
minutes. That should get us into a second round, and we will 
see what kind of time we have after that. I think that gives 
each myself and Mr. Wolf an opportunity to explore questions, 
and then for the Subcommittee likewise to have plenty of time 
to explore follow-up questions.
    So Mr. Attorney General, thank you for your statement.
    The President's executive order on the closure of the 
detention facilities at Guantanamo Bay required a review of the 
status of each detainee in order to determine whether that 
detainee should be transferred, prosecuted, or placed in 
continuing detention. DOJ was tasked with coordinating that 
review. Mr. Attorney General, which other agencies were 
involved in making the recommendations and decisions about 
which suspects to transfer, which to prosecute, and which to 
detain?
    Mr. Holder. Well, in addition to the Department of Justice, 
the Department of Defense, the Department of State, the 
Department of Homeland Security, the Office of the Director of 
National Intelligence, as well as the Joint Chiefs of Staff 
were involved.
    Mr. Mollohan. When those agencies actually sat down to make 
decisions, after the process that they went through to arrive 
at those decisions, were those votes unanimous?
    Mr. Holder. When the principals of those agencies met to 
make final determinations with regard to the disposition of the 
240 detainees, all of the decisions were unanimous.
    Mr. Mollohan. What were the criteria the task force members 
used to inform their recommendations?
    Mr. Holder. Well, first and foremost, we focused on 
national security in deciding if a person could be released and 
where that person might be transferred. National security was 
always our primary concern. We looked at a person's history, 
the person's possibility for future violence, and also had to 
take into consideration trying to repatriate certain people, 
whether or not they could be transferred to their home 
countries out of concern that if they went there they might be 
abused. So it was a mix of those factors that led to the 
decisions that we made.
    Mr. Mollohan. Mr. Attorney General, do the detainees have 
access to habeas corpus?
    Mr. Holder. Yes, they do.
    Mr. Mollohan. All of them?
    Mr. Holder. I don't think all have filed habeas petitions 
at this point, but they certainly have that right.
    Mr. Mollohan. Have some detainees actually filed habeas 
corpus petitions?
    Mr. Holder. Some have, and some, as a result of their 
habeas petitions, have been released.
    Mr. Mollohan. In the last administration, this 
administration, or both?
    Mr. Holder. I believe that is true with regard to the last 
administration as well. I don't have specific figures, but the 
habeas process has been going on for some time.
    Mr. Mollohan. How are you handling those cases?
    Mr. Holder. We have a dedicated crew of lawyers headed by 
the head of our civil division, Tony West. They have tried 
about 50 habeas cases. We have people coming from around the 
country, in addition to Washington, D.C.--Justice Department 
lawyers and lawyers from other organizations--to help put these 
cases together and then to try them before judges here in the 
District of Columbia.

                  DECIDING ON A FORUM FOR PROSECUTIONS

    Mr. Mollohan. Mr. Attorney General, deciding between the 
military and civilian forums for trial has caused a lot of 
consternation in the political community. I know that we have a 
history with regard to that through several administrations. 
Once the task force that you have just described decided which 
individuals would be referred for prosecution, there was a 
subsequent process set up to make the charging decisions for 
each detainee. This process has been the source of some of the 
most vigorous Guantanamo-related debate. There are a 
significant number of individuals who are opposed to even the 
consideration of holding detainee trials in Article III courts. 
These individuals advocate for holding any of these trials in a 
military commission.
    We have held a number of terrorist trials in Article III 
courts, have we not? Through various administrations, 
Democratic and Republican?
    Mr. Holder. Well, that is true. I mean, your opening 
remarks were accurate. There are approximately 300 people or so 
who are in our Federal prison system now as a result of their 
movement through the Article III system. I believe in the last 
administration there were about 150-160 trials or so in the 
Article III courts.
    Mr. Mollohan. It appears that the Administration may be 
openly considering the possibility of moving the 9/11 trials 
into a military setting. Is that an indication of a change in 
the Administration's overall policy?
    Mr. Holder. No, I wouldn't say so. We remain committed to 
using all of the tools that we have in trying to win this war, 
and that means trying people in Article III courts, and trying 
people in military commissions. When I announced my decision to 
try Khalid Sheikh Mohammed in an Article III court, on the same 
day, and actually during the same announcement, I indicated 
that five or six detainees were going to be tried in military 
commissions. And so certain cases are more appropriate in 
Article III courts, and certain ones in military commissions, 
and one of the things that this Administration wants to retain 
is the ability to use our discretion to try these detainees in 
the appropriate forums.
    Mr. Mollohan. Well why should we keep open the option of 
civilian Article III prosecution for these terrorist suspects?
    Mr. Holder. Well, I think one can look at the history of 
what we have had in Article III courts. They are tested. We 
have tried a number of these cases in Article III courts; they 
are secure. We have tried these cases in a safe manner. We have 
the ability to get our secret information through the 
Classified Information Protection Act (CIPA). Our allies around 
the world support us in bringing these cases in Article III 
courts. We have the ability to disrupt and to detain people 
through the long sentences that we get out of Article III 
courts.
    We also have, and I think very significantly, have the 
opportunity through the Article III court system to get 
cooperation from people who are charged there and who do not 
want to face either long sentences or the prospect of serving 
significant amounts of time in our super max facilities. We saw 
from Zazi, from Headley, from Abdulmutallab, people who cut 
deals so that they would have an ability to share information, 
intelligence that we wanted so that they could receive some 
favorable treatment.
    And then I think lastly one of the things that you can 
clearly do in an Article III court that you cannot so clearly 
do in a military commission is accept a guilty plea in a 
capital case.
    Mr. Mollohan. It seems to me, looking at it as a lawyer, 
that there are a lot of tools in a civilian court that the 
court has to manage not only the process of the trial, but also 
the decorum of the defendant. That seems to be a real concern, 
that defendants in these courts will take the opportunity to 
propagandize.
    Mr. Holder. That is actually a very good point, Mr. 
Chairman, and one I think there is a misperception that somehow 
or another if we have a trial in an Article III court this will 
become a forum for these defendants to spout their hateful 
language, their propaganda. And if one compares the way in 
which these defendants are treated in military commissions as 
opposed to Article III courts, that is anything but the truth.
    In the case that I mentioned before involving Siddiqui, she 
was in an Article III court in New York City and she was in her 
trial for one day. The judge determined that she was a 
disruptive influence, that she was trying to disrupt the 
proceedings, and she was removed from that courtroom and 
watched her own trial from outside the courtroom.
    I think what we have seen, in military commissions 
certainly with regard to Khalid Sheikh Mohammed, long speeches 
about a whole variety of nonsensical things, but the judges 
there I think don't feel as comfortable in removing or clamping 
down on a defendant who is trying to do that.
    Mr. Mollohan. Who is involved, Mr. Attorney General, in the 
process of deciding which detainees will be tried in a civilian 
court and which might be tried in a military commission?
    Mr. Holder. It is ultimately my decision in consultation 
with the Secretary of Defense. We have a protocol that we have 
put together and that we use because these are national 
security determinations. The President is consulted as well. 
But there is, as I said, a protocol that has been worked on and 
that the Secretary of Defense and I apply in making 
determinations. The decision is ultimately mine, but as I said, 
it also involves consultation with the President.
    Mr. Mollohan. You may have already touched on this, but I 
would like for you to elaborate because I think it is important 
for the Committee and it is important for the overall debate. 
There must be circumstances where the criteria you use suggests 
a military commission would be the best forum. Could you 
elaborate on that a little bit? What is going through your 
mind? What are the criteria being used as these decisions are 
being made, ultimately by you?
    Mr. Holder. Well on the same day that I announced the 
decision to try Khalid Sheikh Mohammed in an Article III court 
in New York, I made the determination that a man named Nashiri 
would be tried in a military commission. He is one of the 
people responsible for the bombing of the USS Cole. A military 
target was involved, the casualties were brave sailors, 
military men, and that is one of the distinctions that we made.
    There are rules of evidence that exist in the military 
commissions that are more favorable towards the acceptance of 
hearsay evidence. You have to look at these cases individually, 
and on a case-by-case determination, make the decision as to 
where the case can be best tried. And it doesn't mean that you 
are being unfair, I think, to the defendant, you are simply 
looking at the forum that really best suits the particular 
facts of each case. And military commissions certainly play a 
role with the modifications, the amendments, that were done to 
the military commissions a couple of years ago. I think those 
are fine places in which these cases can actually be tried.
    Mr. Mollohan. What about the question of national security 
concerns? Does that enter into these decisions?
    Mr. Holder. Yes although I think not to the degree that 
some of the critics of my earlier decision have indicated. 
Concerns about the leaking of information, the protection of 
national security secret sources and methods can be equally 
accomplished in Article III courts as they can in military 
commissions. In fact, the system that is in place in the 
military commissions to protect secrets is actually based on 
CIPA, the Act Classified Information Protection, which has been 
in effect for an extended period of time in the Article III 
system.
    Mr. Mollohan. How do you respond to the argument that 
holding trials in a civilian court will give detainees that 
public forum? You really have already spoken to that, but do 
you have anything else to add on that? That has been a really 
major criticism. Not only protecting against an outburst, but 
also the security aspects of trying in an Article III court.
    Mr. Holder. Well I mean, as I said, there are Article III 
judges who are familiar with disruptive defendants, not only in 
a terrorism context, but in other cases as well. Article III 
judges are used to dealing with people like this and know how 
to deal with them. And as I said, I look back to that very 
recent case that concluded two or three weeks ago in New York. 
The defendant there was appropriately treated given the way in 
which she conducted herself during her trial.
    Mr. Mollohan. What about the concerns of Members of 
Congress about disruption to their communities, and even the 
safety of the courts holding such trials in local communities? 
Can you speak to that?
    Mr. Holder. Well, I can understand how people would ask 
those questions, and I think my answer to that would be to look 
at history and look at the way in which these cases have been 
conducted safely, without incident to neighborhoods and 
communities that surround the courthouses where these cases 
have been held. We tried Mr. Moussaoui in the eastern district 
of Virginia just across the river--I think in Mr. Moran's 
district or close to Mr. Wolf's district. We have tried cases 
of this nature in all parts of our country, always without 
incident because of the experience that we have, the training 
that our Marshals Service goes through--the work that they do 
with their state and local partners to prepare for these 
trials. It sometimes involves the closing of streets and 
sometimes causes disruptions, but at the end of the day, these 
cases have always been held in a safe manner.
    Mr. Mollohan. Finally, Attorney General Holder, there is 
the concern or the argument made that holding trials in 
civilian courts somehow affords detainees too many rights. As a 
lawyer, I have always wondered about those arguments, but I 
would like very much to hear you speak to that concern.
    Mr. Holder. Well, I am really glad you asked me that 
question, because that is one that tends to get my blood 
boiling. The notion that a defendant in an Article III court is 
somehow being treated in an inappropriate, special way, that he 
is being coddled is anything but the truth. A person charged 
with murder, many of these defendants are, these defendants 
charged with murder are treated just like any other murder 
defendant would be. The comparison that they are getting more 
rights than the average American citizen is not an apt one. The 
question is, are they being treated as murderers would be 
treated? And the answer to that question is yes. They have the 
same rights that a Charles Manson would have, or any other kind 
of mass murderer. Those are the comparisons that people should 
be making when trying to make the determination about how 
terrorists are being treated and not compare them to average 
citizens who create no harm, and who have committed no crimes.
    Mr. Mollohan. Is it true, and I have heard this argument in 
counter to that concern, that defendants in military tribunals, 
many of whom are our service personnel, that the rights are 
skewed in favor of the defendants in a military commission 
environment? Is that correct or incorrect?
    Mr. Holder. I am not sure I would say that they are skewed 
toward the defendant. I think that one of the things you do 
find, though, is that because of the lack of familiarity with 
these kinds of cases, there is a greater comfort in the Article 
III setting to be more, I don't know if aggressive is the right 
word, but to be more strict in interacting with defendants than 
you perhaps see in the military commission setting. Which, 
again, is not to say that you cannot try successfully and 
appropriately these matters in military commissions.

          BUDGET REQUEST FOR HOLDING CIVILIAN TERRORIST TRIALS

    Mr. Mollohan. Mr. Attorney General, with regard to choosing 
a specific venue for a civilian trial, your budget request 
includes $73 million for the first year costs of holding the 9/
11 perpetrators trial in federal court in the Southern District 
of New York. Since the time the budget was finalized you have 
announced that the final choice of forum is still under 
consideration and could theoretically change. If we accept 
recent news reports at face value, and you have spoken to this, 
in fact, it appears possible that the 9/11 trials will 
ultimately be held in a military setting.
    When a final determination has been made on a forum for 
these trials, will you submit a budget amendment to reflect any 
new cost estimates?
    Mr. Holder. Yes, we would. The money that we have sought 
for the potential trials I think would probably be appropriate 
almost regardless of where the trial would be held. If, 
however, we end up in a venue where the costs are substantially 
less than what is included in our budget, we would come back to 
this Committee and seek to amend.
    Mr. Mollohan. Another budget we are concerned about is with 
regard to prison requirements. Would any such budget amendment 
affect your request, which I believe is for $107 million, to 
acquire and renovate the prison at Thomson, Illinois? Is your 
budget request for the Thomson acquisition and renovation at 
all contingent or dependent upon the ultimate disposition of 
these terrorist trials and the location of the suspects?
    Mr. Holder. No, not at all. Our budget requests money to 
acquire two facilities, one in Berlin, New Hampshire, and one 
in Thomson, Illinois. The Bureau of Prisons and the Justice 
Department have a great interest in acquiring these new 
facilities at a cost substantially smaller than we would incur 
if we built these new facilities, and our interest in Thomson 
exists irrespective of whether or not any detainees from 
Guantanamo ever set foot there. That is a place that can be 
used as a, I believe, maximum security facility, and one that 
the Bureau of Prisons and the Justice Department would like to 
acquire regardless of what happens with regard to the detainees 
at Guantanamo.
    Mr. Mollohan. Finally, Mr. Attorney General, is the 
Administration committed to paying for costs that might be 
imposed on local communities in any given venue?
    Mr. Holder. Yes. I think what I said on the day of the 
announcement is that the trials of these matters are not local 
trials. On September 11th, though the buildings fell in New 
York, although the Pentagon was hit, and although there was a 
crash in Pennsylvania, all of this country was impacted, all of 
this country was affected, and these are truly national trials. 
As a result, it seems to me that there should be a national 
responsibility in paying the bills that these trials would 
generate. It is unfair that the local communities wherever 
these cases might be tried should bear a disproportionate share 
for what in essence, as I said, are national crimes.
    Mr. Mollohan. Okay, thank you. Mr. Wolf.

                    TRIALS OF THE 9/11 PERPETRATORS

    Mr. Wolf. Thank you, Mr. Chairman. Simon and Garfunkel had 
this song, the Boxer, and it says man hears what he wants to 
hear and disregards the rest, and to a large degree I think 
there is a little bit of that taking place here. Without 
debating all of these issues I would like to put in the record 
a number of articles and position papers by Andy McCarthy and a 
group of other lawyers that really go to the heart of a lot of 
the answers that you have actually provided.
    The difference of the Khalid Sheikh Mohammed, beheaded 
Daniel Pearl, mastermind for the 9/11 3,000 people, Moussaoni 
was in Alexandria for four years and there was not the patent 
and Trademark office, there was not the hotel, and so the 
circumstances are different.
    Secondly, the cost for Khalid Sheikh Mohammed in New York, 
if he were there for three years, the figures that we have 
gotten from New York City and also the briefing, reimbursement 
of $206 million a year for the City of New York Police 
Department. We have also gotten the briefing in the Marshals 
Service for the airplane they were going to buy and the cars 
rounding out to about a billion dollars to try him there. So a 
little bit of a different kind of thoughts.
    The second thing is there are major differences, and the 
Administration and my good friend the Chairman talk about the 
process. To release six people back to Yemen when you are 
mortaring Yemen at that very moment, to Al-Qaeda in the Arabian 
Peninsula was really a bad idea. We are getting reports that 
one of them may have gone back.
    Also the Administration released two Somaliland, and I have 
been to Somalia, there is no government there, and so to put 
two people back into Somalia and back into Al-Qaeda in the 
Arabian Peninsula, the government of Yemen controls basically 
the capital of Yemen and not much outside.
    So we spoke to the White House, without mentioning names, 
one day they say we are pushing ahead, and days later when this 
thing blew up they said we are going to stop it.
    But there were some problems, and I had a problem, and I 
don't want to take too much time of it, but you were going to 
release several Guantanamo Bay people, the Uighurs into our 
congressional area, whether it be in my district or adjoining, 
and your people came up to my office at this time last year, 
asked me at a hearing, please don't ask the Attorney General 
Holder that question, and out of respect, because I thought 
there could be some consultation that you were going to--I 
didn't ask the question, because I don't it is appropriate for 
members to do a ``got you'' type thing. We never asked that and 
then we got calls from several people in the Administration at 
the low level saying they are coming to northern Virginia here 
and who is coming.
    So there has been a pretty strong difference on a lot of 
these issues, and so I will just put a number of things in the 
record without us debating it.
    But I do want the record to show in 1942 in the midst of 
World War II German saboteurs arrested in New York and Florida 
were arrested by the FBI, but transferred to the military 
custody for trial. Franklin Roosevelt rightly treated these 
agents as war criminals and not common civilian criminals.
    And we are at war, you said that earlier. And I think if 
you talk to most of the family members, not every family 
member, but if you talk to most of them and you look to a lot 
of people they believe that this trial ought to be in a 
military court.
    Now when will you be making a decision on the Khalid Sheikh 
Mohammed issue wherever you are going to make the decision, 
when do you expect that to come out?
    Mr. Holder. I think that we are weeks away from making that 
determination. I don't think we are talking about months. I 
think we are probably weeks away.
    Mr. Wolf. Okay. On the difference between civilian and 
military, the Pentagon as you know very well is a military--it 
is the center, the heart beat of the military system in the 
United States, and there were military people killed, so you 
could have used the same argument with regard to Khalid Sheikh 
Mohammed to be tried in a military court as you did in the 
other one because there were people wearing the American 
uniform and it was the Pentagon where most of our military 
generals are.
    The other thing is, I sent a letter, and we just have a 
hard time getting answers from the Administration. There are 
going to be difference of opinions, and I think respectful if 
you ask me--if you call me I will try to get you anything I 
can. You ask me a question and if I don't have it I am going to 
get you the answer, and if I can't tell you I am going to give 
you a date when I tell you. And I say publicly, call me and I 
will try to cooperate in every way possible. But we can never 
get any kind of cooperation. From the Uighur issue we were not 
able to get any cooperation.
    We got a letter from your department at 11 o'clock last 
night. There was nobody in my office at 11 o'clock last night. 
That is sort of a got you way to sort of clean the decks before 
you come up here, and it is not a very good way.

                   REINSTITUTING THE 9/11 COMMISSION

    I sent a letter back in January asking the Administration 
to bring back the 9/11 Commission. Lee Hamilton had expressed 
support, I was the author of the Iraq study group, we asked 
Secretary Baker and Congressmen Hamilton, they did a great job. 
I can't get an answer. Will the Administration bring back the 
9/11 Commission to take a look at where we are today, what 
recommendations were adopted, what ones were not adopted, and 
what ones were not adopted by the Congress that should have 
been adopted and then go away after six months? But I have had 
the request in since January 12th and I just can't get any 
response. Do you have any thought? Will the Administration 
bring back the 9/11 Commission per my request? And I think Lee 
Hamilton wants that to happen too.
    Mr. Holder. Well, I am not familiar with what the decision 
might be by the President, but I think one of the things that 
strikes me is that the 9/11 Commission did a great job. It 
exhausted hearings with a specific set of recommendations. I 
think that almost any objective observer can look at that 
report, compare those recommendations to where the past 
Administration was, where this Administration is, and make a 
determination.
    Mr. Wolf. Correctly though, but they have the expertise, 
and I called Congressman Hamilton and he thought it would be a 
good idea to come back to six months. Not the whole 9/11 
Commission, but he and the governor of New Jersey to come back 
and look and see--because they have the history of what they 
said and what was adopted and had whatnot. I think that would 
make the country safer. I think it would be a good thing.
    So I guess the answer is you are not sure if they are going 
to bring it back.
    Mr. Holder. Yeah, again, I am not sure from my own 
perspective.
    Mr. Wolf. Okay. I was just trying to get an answer. If I 
can't get an answer.
    Secondly we asked that they put together a ``Team B'' made 
up of Bruce Hoffman and a group of outstanding people, 
bipartisan, outside of government to sort of look at the same 
circumstances to sort of see where we are, that what we are 
doing today to fight terrorism is everything that we should be 
doing. The request was bring in Bruce Hoffman to head up team 
B. I can't get an answer. Do you know what? Is there anything 
interest in the Administration in responding to bringing back a 
team B approach?
    Mr. Holder. I have to tell you that again, we have good 
people, experienced people who have dedicated their lives to 
doing the very things that they are doing in very high-
responsibility positions in the National Security Council in 
our Armed Forces, and I have great faith in the decisions that 
they make. And I am not sure that outsiders are necessarily 
needed.
    Mr. Wolf. Well a lot of people think it would be a pretty 
good idea.
    Thirdly, I asked that the Administration have the TSA 
administrator be a set term similar to the director of the FBI, 
between five administrators in six years. Any thought about 
them doing anything with regard to that?
    Mr. Holder. Well one thing I would certainly call on is for 
the Senate to confirm a TSA administrator before we start 
talking about limiting the terms.
    Mr. Wolf. Well you can certainly confirm this gentleman for 
the set term. But we have had five in the last six years, and 
to bring a continuity I think director Mueller has done a 
pretty good job, and that it is been a pretty good system. And 
so any thought of doing that?
    Mr. Holder. Again, that is not something about which I have 
had any conversations with people in the Administration.

              THE HIGH VALUE DETAINEE INTERROGATION GROUP

    Mr. Wolf. Okay. Lastly, I have asked that the HIG, the high 
value interrogation team, be located not where they have gone 
which put them away from the National Counter Terrorism Center, 
but they be located at the National Counter Terrorism Center. 
And I know that comes under you to a certain degree. What is 
the thought of the recommendation of made for that? The letter 
has been two and a half months there asking that HIG be co-
located at the Counter Terrorism Center so you have the 
breaking down of the stove pipes there, they are all together. 
What about that?
    Mr. Holder. Well, I mean, the HIG is to be housed at the 
FBI, and----
    Mr. Wolf. No, the HIG is not at the FBI. The HIG is out in 
Virginia. They have signed the lease at a building not near the 
FBI. I know where the building is. I have asked that the co-
location of the HIG be with the Counter Terrorism Center 
directly there with the Counter Terrorism Center so that there 
is the exchange of information. That is the whole purpose of 
the center, to break down the barriers so FBI and CIA are 
talking to one another.
    Since this is your responsibility, what about the 
recommendation has been made as you co-locate the HIG at the 
Counter Terrorism Center?
    Mr. Holder. Well, I think the question is not necessarily 
physical proximity as much as it is having communication 
between the HIG and the variety of governmental entities that 
it needs to be in touch with.
    Mr. Wolf. Okay. But it is physical proximity, that is the 
whole purpose of the Counter Terrorism Center. That is why the 
walls were broken down and they put everybody together. That 
was the whole purpose of it.
    Mr. Holder. Right.
    Mr. Wolf. Any way. Okay.
    Mr. Holder. But the HIG, by its nature, draws together 
people from other agencies, co-locates them, gets them ready to 
go out there.
    Mr. Wolf. And that is what the Counter Terrorism Center 
does, and that is why they are there. Any way the answer to 
that is probably not?
    Mr. Holder. I think we have co-location. That is what I am 
trying to say.
    Mr. Wolf. No, they are not. They signed a lease in a 
building, which I can tell you about, not near there. And I am 
asking that they be located there. You have the DNI there, you 
have Leiter there, you have the whole team there, that is where 
it makes sense. And everyone that I have talked to off the 
record thinks it should be there, and I have made the request 
that it be there, and I am just try to go get an answer. Since 
it comes under you will you co-locate it and put it there?
    Mr. Holder. Well, I will certainly take that recommendation 
into consideration. But as I said, the fact is that the HIG is 
a multi-agency entity, and the fact of its existence means that 
there is co-location, wherever the larger entity is actually 
placed.
    Mr. Wolf. Okay. That is probably a maybe, I don't know.

                           JOHN ADAMS PROJECT

    John Adams project. Over the weekend, the New York Times 
reported that Department of Justice officials refuse to share 
CIA concerns in a briefing for the President with regard to the 
consequences of the ACLU's John Adams Project which hired 
photographers to track down CIA officers, and many who probably 
live in my district, and share their photos and personal 
information with alleged terrorists at Guantanamo. Is this 
report accurate? Were the CIA concerns included in their 
briefing to the president? And if not, why?
    Mr. Holder. If you are talking about the Washington Times 
report----
    Mr. Wolf. Well, I am talking about the John Adams Project. 
Yes, I am talking about that, but the information whereby that 
was not put in there as they requested the CIA.
    Mr. Holder. Right. Well the Times article is riddled with 
inaccuracies. There is only so much I can say about that 
because there is an ongoing investigation into the core of what 
was at that Times article.
    Mr. Wolf. Okay. I haven't found much of what you have said 
today really in response to the legitimate questions that we 
are trying to answer. You know in 1998 I came back from Algeria 
where 175,000 people were killed, and the bombing took place in 
Nairobi and Tanzania, and people from my district died.
    I put in the bill to set up the National Commission on 
Terrorism, the Bremmer Commission, and the Bush Administration 
ignored it and so did the Clinton Administration. We are just 
trying to legitimately ask come questions. With everyone I have 
asked, there is not a ``yes'' or a ``no'' or ``I will do this 
or we will report to you.'' We just can't seem--from the 
Uighurs straight onto the Yemen straight onto the Somaliland, 
we just can't seem to find out any answers.
    And with all due respect, Mr. Attorney General, I don't 
think you are served that well when whether it be Republican or 
Democrat asking an honest, legitimate, honest, ethical, moral 
question not trying to--and I respect you. I am not trying to 
create a problem, I am just trying to get to the answer.
    You know, 30 people from my district died in the attack on 
the Pentagon. Michael Spawn, a CIA employee who was killed, the 
first person killed, I went to his funeral out at Arlington 
Cemetery. He was from my district. I am just trying to find 
out. The pilot of the airplane that went into the Pentagon was 
from my district. We are trying to get to work in a bipartisan 
way to really do what is best for the country and not in a 
``got you'' way, but to make a difference to make the country 
safe. But I haven't had any answers, and I can't get an answer 
out of your department.
    The letter you sent up the other day you said references 
this letter, this letter, this letter, this letter, this is the 
answer and there is no answer. Let me move on.
    Mr. Holder. Well with all due respect, with regard to the 
responses that we have sent up there, there are more letters 
that you have sent to us, there are fewer responses that we 
have sent back, but I think the responses that we have sent 
back do, in fact, answer all of the things that are contained 
in the letters that you have sent to me.
    Mr. Wolf. Well, with respect, I don't think that is 
accurate. What I will do is I will put my letters in the record 
at this point and your two letters in the record and the 
history can make a judge as to whether that is accurate.
    [Clerks note.--Letters can be found following QFR 
responses.]

    DELAYS IN THE IMPLEMENTATION OF THE PRISON RAPE ELIMINATION ACT

    Congress unanimously passed, it was my bill, with former 
Senator Kennedy, the Prison Rape Elimination Act of 2003 in 
recognition of the urgent need to address the crisis of sexual 
abuse in U.S. correction facilities.
    The National Prison Rape Elimination Commission spent more 
than five years holding public hearings and drafting 
recommended national standards. The law requires that you issue 
a final rule making binding standards by June 23rd of 2010, one 
year after the Commission issued its recommendations.
    You are not going to make that, and prison rape is a 
serious problem, particularly with regard to young people, but 
anyone, and I can't understand why you would have not followed 
through. We had the commission, we had the recommendation, we 
had everything set up. And now what is the status? Will there 
be a final ruling or what is the status of that?
    And lastly the question that troubles me, the budget 
request for fiscal year 2011 includes a $10 million reduction 
in prison rape elimination related funding leaving just 5 
million for efforts to address sexual violence in detention. 
And I think to have a rape of a person who goes to prison is 
unacceptable, and Senator Kennedy had that in, and Bobby Scott 
and I did, and we expect this to be implemented now to protect 
people that are in prison.
    Mr. Holder. Well, I mean, I share your concerns about the 
sexual mistreatment of people who go to prison. I was a judge, 
I sent people to prison, and I would never want to think that 
anybody I sent to prison to serve time would have to deal with 
the things that that Commission uncovered.
    One of the things that I would note is that the Commission 
was given two years in order to make its findings; we were 
given one year in which to then implement them. We are doing 
the best that we can. I have met with the Commission on, I 
think, three occasions at this point, I have met with the 
chairman of that Commission, Judge Walton. We want to make sure 
that we get this right and also follow the dictates of the 
statute, which says change this situation, make sure that you 
eliminate, to the extent that you can, sexual predator activity 
in prisons, but not increase the amount of money that any local 
jurisdiction has to spend in order do that.
    It is not an easy task, and we will not make that one year 
deadline, but we will do this as quickly as we can. And the 
fact that we will not make that deadline is not in any way an 
indication this is not a problem that we take seriously.
    I have experience with this in a way that, you know, others 
do not. I have, as I said, sent people to jail, and I know what 
happens in our prisons. I know the people who I sent to Lorton 
before that facility was closed and what they had to deal with 
there, and it weighed on my conscience as a judge, it weighs on 
my conscience as Attorney General, and I am determined to try 
to do this, but to do it in the right way.
    Mr. Wolf. Well, I helped close down Lorton because of that 
very, very reason. But you are reducing your budget for fiscal 
year 2011 includes a 10 million reduction in the funding for 
the program, leaving just 5 million.
    So you can say you were a judge and you are interested, but 
the reduction sends the wrong message. I mean, you are known by 
your budget in essence, and that is sort of the landmark.
    Any way, move. Every time, every delay--and if you have 
been reading the series of articles that have gone on, prison 
rape is a serious problem, and another long delay will mean 
more people will face this in prison. And I am disappointed in 
the fact that you have reduced the funding for something that 
you say you are interested in.
    Well the last question.
    Mr. Holder. But we have to deal with a deadline that with 
all due respect, that I think was artificially short given the 
fact that you gave two years to the Commission to do its work 
and only one year to the Department to effectuate the findings 
of that Commission.
    Mr. Wolf. Because the Department drug its heels on this 
issue and didn't want to deal with this issue, so we brought 
some of the best minds in to look at this to give them adequate 
time.
    Right now the Department should have enough information to 
move ahead. People are being raped in prison every day, every 
day. Today by the end of the day someone will be--that will 
happen to them, and so to push this off for another year is 
unacceptable, and to reduce your funding at the same time.
    The last question.
    Mr. Holder. I will do what the statute says that we have to 
do, we will do it right, but let me just say one thing. The 
degree to which we measure seriousness, if you want to say it 
is about money, I have to wonder, what was it that drove this 
body to say you have the responsibility to make these changes, 
to make sure these changes occur, and yet it cannot have a cost 
impact.
    When I speak to wardens, when I speak to people who run 
local jails, when I speak to people who run state facilities, 
they look at me and they say, ``Eric, how are we supposed to do 
this if we are going to segregate people, build new facilities, 
and do training, how are we supposed to do this?'' And that is 
what we are trying to work out--ways in which we can follow the 
dictates of the statute and do something that is going to be 
meaningful, not something that is going to simply be, you know, 
a show thing, something that is going to have a measurable 
impact.
    Mr. Wolf. I know, you know, but we put the legislation in 
because we talked to people that it happened to, and it is not 
a show thing, it is a real thing, it is a reality thing. And 
Senator Kennedy felt strongly about it, Bobby Scott felt 
strongly about it, and I feel strongly about it.
    Mr. Holder. As do I.
    Mr. Wolf. You came up to me last year, you came up and you 
said we are working on this and we are going to deal with this. 
Another whole year has gone by.
    Any way, I have no more question with regard to that issue. 
I yield back.
    Mr. Holder. Let me just on the record say that I feel as 
serious about it as you do, and my comment was only directed at 
the fact that you are taking note of a fact that we have 
reduced our funding here for that, and I was saying, you know, 
Congress in saying that this is something they were serious 
about, also said you can't spend money in order to deal with 
the problem. That is what the law says.
    Mr. Mollohan. Mr. Schiff.
    Mr. Schiff. Thank you, Mr. Chairman, and thank you for 
being here, Mr. Attorney General.
    At the outset I want to tell you how much I appreciate the 
job you are doing. I can't imagine a more difficult time to be 
Attorney General.
    Mr. Holder. Good timing on my part.
    Mr. Schiff. Yes. Well having spent six years in the 
Department, with the U.S. Attorney's Office in L.A., I have 
always had a great appreciation for the hard work being done in 
the Department, and I know it has been a rough decade for the 
Department, and I think in addition to all the challenges as a 
policy matter that you face, you also have the challenge of 
turning around morale in a department that had, I think, 
suffered during the last administration, and been overly 
politicized during the last administration.
    I think your immediate predecessor did a good job in trying 
to turn that around, and you are doing a great job in 
continuing the rebuilding of the Department, and I appreciate 
that.

                       CIVILIAN TERRORISM TRIALS

    The issue of how to deal with the detainees, I know, is one 
of the most difficult and vexing, and I appreciate the 
seriousness and thoughtfulness you have brought to this task. I 
think in reviewing case by case, every detainee that is exactly 
what we should want to view, and that is exactly what you have 
been doing. If there were easy answers to these questions they 
would have been decided a long time ago, but these are issues 
of first impression legally and things that we haven't been 
challenged with really or faced in this context ever.
    You can say there have been prior cases like the 
prosecution of Nazi saboteurs during World War II, but 
comparing World War II to the kind of amorphous, countryless, 
stateless terrorism that we face now is I think really such a 
different environment. We are really comparing apples to 
oranges. And I appreciate your effort to tone down the volume, 
to take the politics out of it.
    I despair frankly when I see the Justice Department 
attacked for the same thing the last administration did in 
terms of repatriating detainees when there were no attacks on 
the last administration for doing that or attacks on your 
department for arresting a suspect or Mirandizing a suspect 
like the Christmas day bomber when the shoe bomber was given 
exactly the same treatment.
    That smacks to me of not a policy-driven search for what is 
the best approach, but rather a political process, but you 
have, I think, done a great job in staying focused on your 
mission.
    I don't really understand, I think, some of the hyperbole 
that has surrounded the detainee issue in the sense that people 
are arguing that we should never try another terrorism case in 
the federal courts. The Oklahoma City bombers who blew up a 
federal building were tried in a civilian court. The people in 
the Justice Department then, as the people in the Justice 
Department now, work night and day and weekend and all of the 
above trying to bring these people to justice and put them away 
or seek the death penalty. That is what they should be doing, 
that is what they are doing. They are not out there to coddle 
criminals. And I don't think we can adopt a blanket policy of 
never trying a terrorist in a civilian court. That would say 
that all terrorism cases are the same, and of course they are 
not.
    So I think what we need to do is really what the Department 
is doing, and that is looking at each case and asking what is 
the nature of this case, who is the defendant, where do they 
come from, what was the goal of the attack, where did the 
evidence derive from, what is the public purpose to be served 
by trying it in a public civilian forum, a criminal court's 
forum, or a military forum? And those are tough decisions to 
make, but they can't be made in a vacuum, they can't be made, 
frankly, by the Congress trying to decide without the benefit 
of knowing where the evidence was deprived or many other 
factors about the case.
    I mean, I think you have two paradigms. You have the troop 
who is arrested in the field, on the field of battle, and the 
paradigm there is they get tried in a military forum, if they 
get tried at all. They may just get detained as an unlawful 
belligerent for the duration of this conflict.
    The other paradigm is when you arrest an American citizen 
on American soil, and I think that those are sort of the polar 
opposites, and even those cases these may not be uniform 
treatment. You may decide to try someone arrested on the 
battlefield in a courtroom, and you may decide to try an 
American in a military setting, but I don't think one size fits 
all now, I don't think it ever will. And so I appreciate the 
thoughtfulness you are bringing to that challenge.
    One thing I think we have to recognize is that there is no 
free lunch in leaving GITMO the way it is or trying people in 
military commissions. As our military leaders have pointed out, 
GITMO has been a terrific recruiting tool for Al-Qaeda, and so 
balanced against the criticisms that have been raised about 
incarcerating some of the GITMO detainees in the United States 
we have to ask what is the cost of recruiting another 100 or a 
another 1000 people to Al-Qaeda because we still have a GITMO 
that is the subject of recruiting on Al-Qaeda web sites?
    So there is no free lunch. These are all going to be hard 
decisions, and I appreciate what you are doing.
    I am going to raise with you for the moment an important, 
but more mundane by comparison, topic and that is DNA.

                          DNA ANALYSIS BACKLOG

    When we last had a chance to talk during your testimony 
your goal was to eliminate the backlog by this summer, and I 
would be interested to know how that is coming, whether we are 
still on track. You were bringing on new technologies to try to 
collect and upload into CODIS these samples and do it much 
quicker. So I want to ask you where we were on that? I think 
last year 38 of the 39 positions were filled, and I would be 
interested to know if those are filled and whether further 
staff increases are necessary to get to that goal of a zero 
backlog.
    The other related question I wanted to ask is about the 
technical review of DNA evidence. There are hundreds of 
jurisdictions obviously around the country dealing with 
backlogs of DNA profiles. In Los Angeles, LAPD and the 
sheriff's department have backlogs of over 7,000 sexual assault 
kits. Both county and city have outsourced those kits to 
private labs that have the staff and equipment to handle that 
huge number in that amount of time. This has been partly 
successful in reducing or eliminating some of these backlogs, 
but there is a substantial question about whether there is a 
lot of waste in the effort.
    And by that I mean last year I got half a million in 
funding with the help of the Chairman so that we could work on 
the LAPD backlog. They used it to hire people to do overtime, 
lab technicians to do technical review. Now these forensic 
scientists weren't testing the evidence themselves, what they 
were doing was simply checking the work of other highly-trained 
scientists at the private labs, a step that FBI requires before 
these samples can be uploaded into CODIS. So you have the 
samples that may be cleaned up in the backlog, but before they 
can be uploaded into CODIS, if the sample is tested by a 
private lab, it has to be retested in a government lab. 
According to the director there though, there wasn't a single 
error found in a technical review that would have resulted in 
any correct data going into CODIS.
    So the question that we have been looking into is, is this 
requirement of 100 percent review really desirable? Because it 
is responsible for a big chunk of delay and a big expense, and 
if it is not going to improve the quality, of what goes into 
CODIS, then you have got to ask why are we doing it? And even 
if there was a problem and a sample got incorrectly loaded into 
CODIS, you can have a requirement that before, let us say, 
there is a match made, before that is used in any way, if the 
sample is done by a private lab then there has to be the 
technical review.
    So if you could address those two subjects, where we are in 
the backlog and whether you are amenable to removing that 
requirement, of technical review, that would be great.
    Mr. Holder. Yeah, I think first with regard to the second 
thing that you raised, that we do need to find ways in which we 
can make this process as efficient as we can without giving up 
what the real value of the tool is, and that is the near 
scientific certainty of it. I think your suggestion is actually 
an interesting one about the possibility of dealing with those 
samples that come from private labs on which we get a hit and 
then retesting perhaps only those. That I think is an 
interesting idea that ought to be considered.
    Just kind of looking at the statistical information here, 
between 2004 and 2009 the Department has provided to the states 
and units of local government about $300 million to perform DNA 
analysis requested for about 135,000 backlog forensic cases and 
to build DNA laboratory capacity, $53.8 million to eliminate 
existing backlog of DNA database samples, although 1.6 million 
DNA database samples have been analyzed, resulting in more than 
15,000 CODIS hits. We have for fiscal year 2011 a $150 million 
DNA initiative to try to deal with the backlog and also deal 
with ways in which we can wring out from these very, very 
promising technology efficiencies.
    I think people often times think of DNA as only the thing 
that springs people who were unjustly accused of a crime, and 
it certainly has had that impact, but it is also a very, very 
important law enforcement tool that convicts people who have 
committed very, very serious crimes, and so it is something 
that I think has to be at the center of what I have come to 
call an evidence-based approach to criminal justice, and we 
have to do it in the right way, in an efficient way, but this 
is a good place for us to spend our money.
    Mr. Schiff. Do you know, Mr. Attorney General, if you don't 
I would love it if you could follow up though, are you on track 
to eliminate the backlog by the summer of this year? That was 
the goal last year. How is that coming, and if we are not on 
track what do we need to do to get on track?
    Mr. Holder. Okay. I do not know if we will have the backlog 
eliminated by this summer, but what I will do is get back to 
you at the conclusion of the hearing and give you a sense of 
where we stand if not by the end of this summer, a sense of 
when it is we think we will have that backlog eliminated.
    [The information follows:]
           status of eliminating the backlog of dna database
    The FBI is on track to eliminate the DNA backlog associated with 
Federal Convicted Offender Program by September 2010.

    Mr. Schiff. Thank you. And I also want to express our 
gratitude in California and the other border states for the 
SCAAP funding in the budget. It has been zeroed out by the last 
administration, you put in in excess of 300 million into the 
program, we of course would like and will push for more, but we 
are glad to see that program reappear in the Administration's 
budget.
    Thank you, Mr. Chairman, I yield back.
    Mr. Mollohan. Mr. Culberson.

            RIGHTS AFFORDED TO DEFENDANTS IN CIVILIAN TRIALS

    Mr. Culberson. Thank you, Mr. Chairman, and thank you, Mr. 
Attorney General, for appearing before us.
    In response a moment ago to a question from the Chairman 
you said that terrorists have the same rights as Charles 
Manson, correct?
    Mr. Holder. I said that murderers have the same rights as 
Charles Manson, and if these people are charged with murder, in 
essence, those are the kinds of rights that they would get.
    Mr. Culberson. And terrorists who have murdered U.S. 
citizens and the approach of your Department of Justice is they 
have the same rights as Charles Manson.
    Mr. Holder. In a sense that a murderer has the right to go 
before a jury, get the acts that he is charged with proven 
beyond a reasonable doubt, yes.
    Mr. Culberson. So therefore Osama Bin Laden in your opinion 
has the same rights as Charles Manson?
    Mr. Holder. In some ways, I think they are comparable 
people.
    Mr. Culberson. That is incredible. This is where the 
disconnect between this Administration and your mind set is so 
completely opposite that of where the vast majority of the 
American people are, where my constituents and I just have deep 
seeded a profound philosophical difference with the Obama 
Administration, the Department of Justice, the leadership of 
this Congress.
    This is war. In a time of war we as a Nation have never 
given constitutional rights to foreign national, enemy soldiers 
certainly captures overseas.
    And Senator Lindsey Graham asked you this question, and I 
know you have had time to think about it, at the time he asked 
the question you couldn't provide him with an example. Could 
you provide us with an example of when in time of war the 
United States has ever granted a foreign national captured on a 
foreign battlefield U.S. constitutional rights? Has that ever 
happened?
    Mr. Holder. You are dealing with a situation that is 
different from anything that we have ever before. Different 
from anything that we have ever before. We try to analogize 
this to wars where there were people in uniform, where you had 
signing ceremonies that ended declarations on battleships in 
Tokyo Harbor. This is not the kind of war that we are facing. 
And though we tried to analogize the tools and analogize the 
rules, they don't necessarily apply the same way.
    Mr. Culberson. Uh-huh.
    Mr. Holder. What Osama Bin Laden is responsible for are 
both, as I said, and I have consistently said, both acts of war 
and also criminal acts. And when I was referring to the Charles 
Manson analogy, that was just to talk about the rights that he 
had within a courtroom.
    Mr. Culberson. Uh-huh.
    Mr. Holder. I understand that we are at war with Al-Qaeda, 
and that is why we have 30,000 additional troops in 
Afghanistan.
    Mr. Culberson. Right.
    Mr. Holder. And why we have taken all kinds of other 
measures, some of which I can't talk about, in Pakistan. We are 
not fighting this from a law enforcement preventative mode, we 
are using law enforcement as one of the tools, but we are also 
using military means to defeat this enemy.
    Mr. Culberson. Which is why you support the Second Circuit 
Court's decision in Padilla that the President lacks the 
authority to detain a U.S. citizen as an enemy combatant on 
U.S. soil.
    Mr. Holder. That is not clear at this point that the United 
States has the ability to, as the President tried to do in that 
case, hold incommunicado and without a lawyer an American 
citizen on American soil. What that brief said was that there 
are other tools that the Executive Branch has, and that it 
should make use of, in order to effectuate the neutralization 
and the incapacitation of that person as opposed to simply 
locking them away and not giving them a lawyer.
    Mr. Culberson. Right.
    Mr. Holder. Again, we are talking about American citizens 
on American soil.
    Mr. Culberson. Right. But the key is you said the President 
has other tools. The President is the Commander in Chief, and 
this is where the profound disconnect comes between where 
America is and where you are in this Administration and where 
this leadership of the Congress is.
    Mr. Holder. I would disagree with the characterization that 
there is a split between America and the leadership of this 
Administration.
    Mr. Culberson. There really is, because you saw it I think 
in the Massachusetts election, this was one of the key issues 
in the election of Scott Brown, is even the voters of 
Massachusetts, as liberal and different in their philosophical 
views as they are from my constituents in Texas, even the 
voters in Massachusetts understand that Osama Bin Laden does 
not have the same rights as Charles Manson as you have just 
stated.
    Mr. Holder. I said that they only have the same rights 
within a courtroom.
    Mr. Culberson. Right. Well granting Osama Bin Laden the 
right to appear in a U.S. courtroom you are clothing Osama bin 
Laden with the protections of the U.S. Constitution. That is 
unavoidable, and something that you have skipped right past.
    Mr. Holder. Let us deal with reality here.
    Mr. Culberson. And it is giving constitutional rights to 
enemy soldiers that is the profound problem, sir.
    Mr. Holder. We are talking about a hypothetical that will 
never occur. The reality is that we will be reading Miranda 
rights to the corpse of Osama Bin Laden. He will never appear 
in an American courtroom. That is a reality. That is a reality.
    Mr. Culberson. But it is clearly your position and the 
position of this Administration that you believe on a case by 
case basis, and your tendency would be to grant constitutional 
rights to enemy soldiers captured on foreign battlefields. Has 
that ever been done before in U.S. history at a time of war?
    Mr. Holder. Well, I assume that you are a supporter of 
military commissions, is that correct?
    Mr. Culberson. Absolutely. In a time of war, yes, sir, I 
support what the U.S. Supreme Court affirmed when those German 
terrorists were captured, as Mr. Wolf said, on U.S. soil, they 
were lead off on the beaches of Florida and Long Island----
    Mr. Holder. And yet even in those military commissions 
those people are given constitutional rights, are they not?
    Mr. Culberson. Well they are in a military commission not 
clothed with all of the protections of the U.S. Constitution, 
they are treated by the military as enemy combatants captured 
at time of war. And the question is----
    Mr. Holder. But they are not put up against a wall and 
shot. They have the ability to confront those who accuse them. 
They have the right to lawyers. They have many of the same 
constitutional rights.
    Mr. Culberson. Severely restricted rights, and the military 
tribunal is the problem. We are at war, and you don't seem to 
recognize that we are at war just as though we were at war with 
the Germans in World War II, but the people who we're fighting 
are such cowards they clothed themselves as women and hide 
behind children and hide in mosques as they did in the Gaza 
Strip, as they do in attacking us, and it is the President's 
responsibility as Commander-in-Chief to protect the country, 
and the President has granted great discretion by the U.S. 
Supreme Court and as Commander-in-Chief deciding when and where 
to try these people.
    It was President Roosevelt's decision that the German 
terrorists be tried in a military tribunal and not given the 
full protection of the Constitution. It was President Bush's 
decision that foreign nationals captured in foreign 
battlefields not be tired in civilian court and given the full 
protection of the Constitution, because we are at war. And time 
lost in interrogating these people means lives lost. And it is 
one of the principal reasons actually when you looked at why 
Scott Brown won his race it is not only because the people of 
Massachusetts opposed the President's healthcare plan, but 
because this Administration consistently, and here once again 
today we now learn that you think Osama Bin Laden should be 
given the same rights as Charles Manson in a court of law, and 
that is just not acceptable to the people that I represent, to 
the people of America, and it represents a just profoundly 
different approach that has never been done before in the 
history of the country.
    Mr. Holder. What we have said and what I have said is that 
on a case by case basis you make the determination of where you 
can bring the strongest case. Where will I have the greatest 
chance of success? There are things that you can do in Article 
III courts that you cannot do in military commissions. You 
cannot have, for instance, cooperation agreements. That does 
not exist in a military commission. We have the ability to 
incarcerate people for extended periods of time.
    Mr. Culberson. Right.
    Mr. Holder. And one only has to look at what has happened 
through the use of the Article III courts over the course of 
the past year to see the plots that we have broken up and the 
intelligence that we have gathered, which has allowed our 
military to be more effective in the field.
    Mr. Culberson. Yes, sir.
    Mr. Holder. And that cannot be denied. That cannot be 
denied. It is where facts run into everything that you are 
saying. Facts.
    Mr. Culberson. Well forgive me, my time is limited and your 
perspective--I respect your opinion, but it is one that I 
profoundly disagree with, and my constituents and the Nation I 
think overwhelming would disagree with you that enemy soldiers 
captured in time of war, particularly on foreign battlefields 
are not going to be--should not be given the protection of the 
U.S. Constitution, that they should be tried as enemy soldiers 
in military tribunals. That has been the history in this 
country, and the goal is to protect the people of the United 
States. And you know, your focus has been on when and where and 
what rights they should be given.
    If I could, I know my time is----
    Mr. Holder. No, my focus is on how they are incapacitated, 
how they are disrupted, how they are punished, how they are 
held accountable. That is my focus. How do we bring these 
people to justice. Do I use Article III courts or do I use a 
military commission? I have used both in determinations that I 
have made. We are not afraid to use military commissions.

     PROTECTION OF NATIONAL SECURITY INFORMATION IN CIVILIAN TRIALS

    Mr. Culberson. If I could, because my time is limited, 
forgive me for interrupting, but a specific example, the Ahmed 
Ghailani case, he is being tried in New York. The Obama 
administration made the decision to try him as a foreign 
national in Pakistan, for the 1998 east Africa bombings. You 
made the decision to try him in civilian court. The first thing 
he did was file a motion to dismiss on the grounds that he was 
denied a speedy trial. And on February 24th the District Court 
ordered the Department to turn over all documents relating to 
his detention at Guantanamo that would allow the defense to 
determine whether his detention or his delay in going to trial 
was actually based on national security grounds.
    And Mr. Chairman, the worry is that of course this 
information the Department turns over to him, any of that 
information they give to this guy's lawyer is going to be 
scanned and broadcast on the Internet in a nanosecond. Of 
course it is. It is going to be broadcast in a nanosecond to 
our enemies overseas. So you have handed our enemies at time of 
war a powerful tool, very powerful information to use against 
our men and women in uniform, and that is one of the main 
concerns.
    Mr. Holder. All right. Now let us have a couple of facts 
here. There is a statute, the CIPA statute, that would prevent 
the dissemination of the information that you are talking 
about.
    Mr. Culberson. You can withhold things on national security 
grounds.
    Mr. Holder. Lawyers have to be cleared, they have to have 
security clearances. There are all kinds of measures that are 
put in place.
    With regard to Mr. Ghailani, he is the last of the people 
charged in that. The other people who were charged with that 
crime were charged by the Bush Administration, where? In 
civilian court.
    Mr. Culberson. But in this case you made the decision to 
try them in civilian court, he is captured overseas, he is a 
foreign national, and the District Court has ordered you to 
turn over any documents that would allow the defense to 
determine whether he was denied a speedy trial based on 
national security grounds, and it is a fact those things can 
and will be scanned, and can and will be provided to our 
enemies overseas.
    Mr. Holder. That is not a fact. That is speculation on your 
part that runs head-on into another bothersome thing called a 
statute, the CIPA statute, another fact.
    Mr. Culberson. But it is the concern that we have.
    Mr. Mollohan. Mr. Culberson, you are going to have to----
    Mr. Culberson. And I appreciate it.
    Mr. Mollohan. I don't want to cut you off because I don't 
want to sound like----
    Mr. Culberson. I have gone long.
    Mr. Mollohan. Excuse me.
    Mr. Culberson. Sorry.
    Mr. Mollohan. Thank you. It is one thing to interrupt the 
witness, and another thing to interrupt me. You will have 
another round.
    Mr. Culberson. Thank you.
    Mr. Mollohan. But you have gone over your time. I don't 
want to appear like we are cutting this off.
    Mr. Culberson. Thank you, sir.
    Mr. Mollohan. But you will have another round.
    Mr. Culberson. Thank you.
    Mr. Mollohan. Mr. Fattah.
    Mr. Fattah. Thank you, Mr. Chairman.

     USE OF THE CIVILIAN TRIAL SYSTEM TO REINFORCE THE RULE OF LAW

    Mr. Attorney General, let me welcome you to the Committee, 
and rather than kind of go back over some of the territory that 
has already been over, let me just try to see if we can 
resurrect some of the context of all this.
    Now President Reagan and President Bush, the first Bush, 
they criticized on behalf of our country China for instance for 
locking people up, not having trial, secret charges, secret 
evidence, they said that this was not appropriate in a 
civilized world. And Newt Gingrich was before the Congress and 
I asked him post 9/11, you know, what is the rule of law? You 
know, because you hear my colleagues, they are basically saying 
look, if you grab somebody, you kind of think they are a 
problem, put them in a place over in Guantanamo and that is it, 
let us throw the key away. And the question really becomes is 
how does our Nation, how should we behave in the context of 
trying to promote to the rest of the world the rule of law? 
Would it be impossible for a president of the United States, a 
Ronald Reagan, a George Bush, to criticize China in the same 
context today given the activities over the last eight years?
    Mr. Holder. I wouldn't equate what the prior administration 
has done with--certainly what we know about what the Chinese 
have done, and yet I think back to my confirmation hearing and 
what Senator Graham said, and I think it is profound. He said 
that what we decide to do in dealing with these terrorists says 
more about us than it does about them. And we have a great 
tradition, and we have great systems that have been shown to 
work. People look at the United States and our legal system, 
and it is held out as the gold standard. I have great faith in 
the abilities of our judges, the people who serve as jurors, 
the people who are responsible for the protection of people who 
are involved in trials, to handle these matters in a way that 
we always have.
    Mr. Fattah. Well, I do too, and I have said this before, 
you know, in terms of this manner of whether someone should 
have a trial in New York City who killed 3,000 people almost on 
9/11. You know, if someone had killed so many Philadelphians we 
would want--we would expect that there would be an opportunity 
for justice to be done, and for the community there to be able 
to participate in a trial and for the families to be, you know, 
now so----
    Mr. Holder. If I could just interrupt. There actually is a 
federal statute that says that the trial has to be held in the 
place where the murders occurred in a capital case.
    Mr. Fattah. If he could live long enough to get to trial in 
Philadelphia we would expect for him to come to trial in 
Philadelphia.
    So the idea that we can take 18, 19 year old kids, drop 
them on some mountain in Afghanistan in the middle of the dark, 
is that we are too cowardly to have a trial with all the 
protections that are afforded. You know, we have the military, 
we got the police. We can't put somebody on trial. I mean 
unless they are Superman or something.
    I think it doesn't befit a great Nation to hesitate or 
equivocate on the question of, you know, following our own laws 
and the impulse to justice.
    So in this selective amnesia of my colleagues, you know, we 
saw the past Attorney General of the Justice Department 
prosecute a CIA employee for harming a prisoner who was 
suspected of terrorism. There was no complaints, there was no 
suggestions that this was hurting the morale of the CIA. You 
come along you say you want to review these cases. You haven't 
put anyone on trial, you haven't charged anyone at the CIA, 
except you have been attacked.
    This Administration, as you point out, following the same--
in the same case, trying the last perpetrator in a civilian 
court, they didn't criticize the others who have been tried in 
civilian court by the Bush Administration, so it is all 
politics, and it is such unfortunate that we have American 
citizens who have lost their lives, we have young men and women 
who are risking their lives, and that here in the Congress we 
can't rise above our own politics. It is unfortunate, and it is 
an unfortunate day, but we still have to persist.
    And I think that I would just want to say to you as you go 
forward that this Committee, and I know that the Chairman, we 
want to be as helpful as we can in terms of making sure you 
have the resources. We had a young presidency, and in that 
young presidency of George Bush the second go around we had an 
attack. Thousands of Americans died. What the minority party 
did was we united with the majority and we worked together to 
protect the country.
    Now we got a young presidency. We have a failed attack on 
Christmas day, and what does the minority party do? They attack 
the President and they attack this Administration. It is a 
reversal of responsibility, and I would just hope that my 
colleagues at some point would be able to put their petty 
politics aside and be able to work in the best interest of our 
country.
    Thank you.
    Mr. Mollohan. Mr. Honda.
    Mr. Honda. Thank you, Mr. Chairman, and welcome.
    Before I start I just want to thank you for your service to 
this country, and certainly as a third generation Japanese 
American who went through internment, and this country set 
aside our Constitution. I place my confidence in your ability 
to fulfill the laws of this country, and so for I am very 
appreciative for your service.

                              2010 CENSUS

    You know, the census is one of our most important civic 
responsibilities, it is under way now, and historically some 
population groups are more reluctant to respond because they 
are fearful that government agencies other than the U.S. Census 
Bureau will have access to their personal responses, and might 
use that information to take legal action against them.
    Now the 2010 census is the first post September 11th 
enumeration. I, and several of my colleagues recently asked the 
Justice Department to analyze the strict census confidentiality 
provisions in light of the newer Patriot Act provisions, which 
allow the Federal Government to seek information and gather 
data about individuals suspected of terrorist activity, and we 
appreciate your recent response to our letter. Would you 
confirm my understanding of your analysis?
    This is what I understand. It says no data sharing or data 
seeking provisions of the Patriot Act supercede provisions of 
the Census Act that prohibit the Census Bureau from sharing any 
personally indentifiable information with any other government 
agency or court of law. Is that a correct analysis and 
determination?
    Mr. Holder. I was going to say yes, but I wanted to make 
sure, so I checked with all of my colleagues back here, and 
that in fact is correct, yes.
    Mr. Honda. I do that with my staff too, thank you.
    Because I think that when we tell our communities, 
especially the recent arrivals and those who are citizens 
awaiting, those who are new citizens, we want them to feel 
confident that when the knock on the door is there and we do 
the outreach and spend all this money and effort to fulfill the 
constitutional mandate of counting everybody who is here, we 
want them to feel confident as I do that their information will 
be used only in the way to provide information so that we can 
come up with all kinds of programs that will benefit the people 
of this country, so I appreciate that input.

                      RESOURCES FOR INDIAN COUNTRY

    The increased resources the Administration continued to 
request for Indian country law enforcement programs and 
initiatives through the Department of Justice in this 2011 
budget request. The Administration has proposed a new bill 
language for 7 percent tribal set aside funding within state 
and local law enforcement assistance and other DOJ accounts. 
This 7 percent tribal set aside language would replace 
traditional language that has been carried out in recent years 
that specified particular funding amounts for the various 
Indian country law enforcement programs such as tribal courts, 
detention facilities, and Indian youth.
    What assurances does the Subcommittee have that these key 
core component programs serving Indian country will continue to 
receive an adequate base level of funding in 2011?
    Mr. Holder. Well, I think that one of the things we want to 
do is to work with the people in the tribal lands to make sure 
that the money is spent in appropriate ways. We will use our 
Inspector General, and the other mechanisms that we have, to 
ensure that money is being spent programmatically in the way 
intended by Congress and consistent with what the 
Administration's goals are.
    I attended a listening conference in Minnesota, I guess 
late last year, to try to, as we were developing the budget, 
listen to the people who live on those lands. What are their 
needs? And I think we have tried to identify those needs in the 
budget, come up with a certain amount of flexibility, but also 
a certain amount of rigidity at the same time so that the needs 
that they identified, and we see, are met. And so I think that 
we have struck a right balance here.
    Mr. Honda. Has there been any discussion during that time 
or the perception that Indian country laws based upon culture 
and history traditions may be different if it were 
administered--well, are there any Indian country courts that 
are able to have the same kind of support from us and be able 
to administer the laws that they have traditionally on their 
own lands, and is there a difference in friction in that area, 
and is there any work being done to sort of address those 
differences?
    Mr. Holder. Well, I think we are trying to be sensitive to 
the cultural differences that exist, while at the same time 
trying to, in terms of all the law enforcement instruments that 
we see there, support them in such a way that they are 
effective by 21st Century standards. Again, being sensitive to 
those cultural differences, but ultimately just making them 
effective.
    If one looks at the crime rates in Indian Country, if you 
see what a young girl born in Indian Country, who lives her 
life there, can expect in terms of sexual abuse and sexual 
violence, it is really breathtaking. What we have tried to do 
is come up with ways in which we are supportive of enforcement 
efforts, supportive of prevention efforts, while at the same 
time being sensitive to the cultural differences that I think 
you are right to point out.
    Mr. Honda. Given that distinction and that kind of case, in 
terms of the civil rights that we have and the kinds of access 
to health and things like that or education, would the reverse 
be applicable to Indian country? If there is a lack of that, 
and there is an expectation that somehow we are partners 
through this treaty that we have, and the context of their 
sovereignty? Do civil rights laws apply in that case in Indian 
country from the perspective of our own laws? I am not sure if 
that makes sense, but you know.
    Mr. Holder. No, I think I understand what you are saying, 
and I would have to check on that and see exactly what the 
applicability is of our laws. I think they only reach so far. I 
think that the monies--but I would want to make sure that this 
is accurate--the monies that we give are to support the laws 
that they have and that they have to enforce. Not all of our 
laws, as I understand it, are necessarily applicable on tribal 
lands, but that is something I should check into and get back 
to you with a more definitive answer.
    [The information follows:]

            Are Civil Rights Laws Applicable on Tribal Lands

    As the Supreme Court observed in Nevada v. Hicks, 533 U.S. 353, 383 
(2001), ``it has been understood for more than a century that the Bill 
of Rights and the Fourteenth Amendment do not of their own force apply 
to Indian tribes.'' However, because of the unique status of tribes 
under federal laws, the actions of Indian tribal governments are 
limited by most of the provisions of the Bill of Rights through the 
Indian Civil Rights Act, 25 U.S.C. 1301-03.

    Mr. Honda. Okay, I appreciate that.

                        IMMIGRATION CASE REVIEWS

    In the area of the Executive Office for Immigration Review 
in citing the complexities of immigration cases such as 
unmanageable dockets, unrealistic case completion deadlines. On 
average, immigration judges have probably less time than before 
to dispose of a case despite their merging in case laws. What 
steps have your office taken to ensure that judges and the 
Board of Immigration Appeals members can manage their case 
loads, and then reduce the heavy load on the circuit courts and 
ensure that immigration cases receive adequate attention in 
administrative courts? What concrete actions have been taken to 
ensure that immigration judges have the tools and resources to 
uniquely adjudicate these cases?
    Mr. Holder. One of the things that we are doing is hiring 
more judges to have more people to hear these cases. We are 
looking at adding, using $11 million that would include 125 
positions and 31 attorneys, 21 immigration judge teams and 10 
Board of Immigration Appeals attorneys. We want to have more 
people doing this work, and at the same time, we want to 
increase the training that we give to these people.
    I think we have made some substantial progress when it 
comes to what our immigration judges are doing. I had a meeting 
just yesterday, maybe the day before yesterday, with a group of 
Article III judges who review these cases. They said they 
thought over the last couple of years that they had seen a 
noticeable, positive change in the work product that is coming 
out of immigration judges, the trial judges.
    Mr. Honda. Okay. How much time do I have?
    Mr. Mollohan. Well you should ask. Go ahead and ask one 
more question.
    Mr. Honda. Let me pursue this.
    Mr. Mollohan. One more question, please.

               FIREARMS TRAFFICKING AND RELATED VIOLENCE

    Mr. Honda. yeah, okay, thank you. Just recently, I read 
that there has been some pretty horrific and gruesome stories 
of assassinations or murders in, I believe it is in Juarez, 
committed by gunmen associated with drug cartels, and the 
murders were of our staffs from the American Consulate Office. 
I know that in past meetings, the ATF has reported that the 
U.S. is overwhelming is the source of guns used by these gun 
traffickers and their acts.
    In the 2009 ARRA we allotted $10 million in funding for the 
ATF Project Gun Runner. The initiative was designed to disrupt 
illegal gun trafficking operations through Mexico, especially 
along the southwest boarder.
    Do you believe that this act, the Recovery Act funding, 
along with any other additional funds that the ATF is spending 
to confront this trafficking to Mexico, is sufficient to take 
on the problem of illegal gun trafficking?
    And I guess just let me piggyback another question on top 
of that. The issue of gun shows, does that still continue to be 
the main source of arms that show up on the other side of the 
border?
    Mr. Holder. Well, I think we have to use all the tools that 
we can to stop the flow of guns from the United States into 
Mexico. Gun Runner, I think, has been a successful program. We 
have tracing programs that we use with our Mexican counterparts 
in a very valiant effort to fight these cartels.
    ATF has appropriately used projects to go to gun shows 
where guns are being sold improperly, and it has been effective 
in that regard as well.
    The concern, though, is that we really have to understand 
that there is indeed a problem. If I speak to my Mexican 
counterparts, and if I look at the weapons that are seized down 
there, way too many of them come from the United States. If 
Mexico is ultimately to be successful in this war that they are 
fighting, that will benefit this Nation as well, I think that 
we have to do all that we can to increase our efforts to stop 
the flow of guns from the United States to Mexico.
    There are things that we need to do in Mexico. I think we 
need to have more of our people there working with their 
Mexican counterparts, from ATF, DEA, and the DHS agencies as 
well. I think we also have to be honest with ourselves that we 
are allowing, through straw purchases and other illegal things, 
the acquisition of guns that then ultimately go to Mexico.
    Mr. Honda. Should there have been intelligence regarding 
these want to be drug cartels who want to attain the leadership 
on the other side? Should there have been intelligence that 
should have been shared with our folks that their lives are in 
danger, or were in danger? And if the intelligence should have 
been there that wasn't passed on was it passed on, and is this 
the other area that we need to strengthen as to create a better 
intelligence process so that we can defend, or at least 
protect, our members of our organizations and our government on 
the other side?
    Mr. Holder. Well we certainly have to make sure that we 
have a good information flow between the United States and 
Mexico, a good intelligence flow. One of the things that we 
have to assure ourselves though is that the people with whom we 
are sharing this information are appropriate to receive it, and 
that is why we have pushed Mexico to come up with what we call 
vetted units, people who we can trust and who we can share 
information with.
    I will say this, you know, there is an investigation that 
is ongoing now by the FBI and by the DEA into the very tragic 
shootings that occurred over the last few days, and as a result 
of a variety of means that we have, we are developing a better 
understanding of exactly what happened there. And I would not 
place, at least at this point, I would not have any concern 
that information was not shared with us by our Mexican 
counterparts as being a cause of what happened there. As I 
said, the DEA and the FBI I think are doing a good job in the 
relatively short period of time they have had to investigate 
it. We are starting to get a picture of what happened.
    Mr. Honda. Thank you, Mr. Chairman.

           BALANCING SECURITY AND JUSTICE IN TERRORISM TRIALS

    Mr. Mollohan. All right, Mr. Attorney General, there has 
been a discussion in some parts of the hearing which has raised 
questions about the balance between security and the 
guaranteeing of rights as meted out under the Constitution in 
various situations, including military courts and Article III 
courts.
    I would simply note that if this is about rights it is also 
about responsibilities and both are constitutionally based. And 
to the extent that the authority that is vested with the power 
to implement policy in the country pursuant to constitutional 
principals is true to constitutional principals, then we are a 
better Nation. To the extent that we don't do or try to do that 
as well as we could or as we should, then we need to step back 
and regroup and address the shortcomings and then move forward.
    I really commend the Administration for doing that, and 
doing it in a way that is very sensitive to the national 
security concerns that were obviously paramount in the last 
administration. I think that is to your credit.
    I also think it is to your credit that in stepping back you 
have embraced process in order to assure our faithful 
fulfillment of our responsibilities and adherence to 
constitutional principals. I think you certainly have done that 
in the review of the detainees at Guantanamo. I think that is 
commendable. The defining distinction between the way these 
detainees were initially handled and the way that this 
Administration has handled them has to do with process and 
bringing criteria to the table and really being sensitive to 
that. Frankly, that is a statement not to be insensitive to the 
national security concerns that the last administration was 
faced and preoccupied with. But it is to your credit that in 
pursuing those same national security goals, you backed up and 
did it with a greater sensitivity to those rights that are 
constitutionally based and which really define us as a Nation. 
Recognizing that you also have responsibilities and you are the 
power, you are exercising those responsibilities to achieve 
national security purposes and, at the same time, being 
sensitive to the principals that define us as a Nation.
    There are a of issues that were raised, but I would like to 
quickly address two points that were principally raised by Mr. 
Culberson. With respect to the Ghailani case, can you elaborate 
on the statutory and other protections that will guide you with 
regard to what information and how much information is shared, 
and how that information will be safeguarded in the course of 
that proceeding?
    Mr. Holder. If the prosecutors in that case make the 
determination, in consultation with the Intelligence Community, 
that information should not be shared, should not get out of 
the confines of the courtroom, there are mechanisms in place, 
principally the CIPA statute, that allow for that to occur. 
That is something that is fairly routine in terrorism cases 
where a motion is made. A judge looks at the motion, there are 
lawyers from the other side who have gone through the security 
clearance process, and the information is contained within the 
courtroom. We have judges, particularly in New York and other 
places where these cases have been tried, who are familiar with 
the very legitimate concerns that Mr. Culberson raised, but who 
handle those concerns, I think, in an appropriate way, using 
the tools that Congress has given them, chiefly the CIPA 
statute.

           RIGHTS OF DETAINEES IN CIVILIAN TRIALS, CONTINUED

    Mr. Mollohan. There were some fairly complicated 
constitutional issues alluded to and questions asked that I 
think were inviting serious answers. The one issue that I would 
like to hear you speak to, with time to do it, is this 
comparison with Manson, who obviously was a murderer. I think 
it is important for you to characterize your point, rather than 
your point to be characterized, so I would like to give you an 
opportunity to characterize your opinion and to elaborate on 
the points you were making.
    Mr. Holder. Yes, the point I was making was that I 
frequently hear the notion that these terrorists are getting 
rights that the average American would not get, and I think 
that runs head-on into the fact that, to the extent that we 
decide to bring terrorists charged with criminal acts into the 
criminal justice system, they are not treated as average 
Americans, they are treated as murderers. They are treated in 
the way that their crimes would have them be treated.
    I used the Charles Manson example only because I was 
thinking of a mass murderer and thinking that, with regard to 
some of the people who might be brought into the Article III 
courts, they also would be mass murderers, and so they would 
get, he used the word protections. I don't think that 
necessarily conveys what I am trying to say. They would be 
treated in the same way, which doesn't mean that they are going 
to be coddled and doesn't mean that they are going to get 
treated with kid gloves. They would be imprisoned before trial. 
They would be in holding cells that are, if you look at the 
detention facility in New York, extremely small. They are 
drafty. They are not pleasant. It is not, for these people who 
are brought into the Article III system and who are charged 
with these serious offenses, it is not at all a pleasant 
experience, and that is what I was trying to convey.
    The comparison is not between the average American and 
these terrorists. The comparison is between those people who 
have committed the most heinous acts and who are charged in our 
Article III courts, that is the comparison that I think is more 
apt.
    Again, what I have consistently said is that not everybody 
who we determine should be tried will be brought into Article 
III courts. Some will be tried in military commissions. I have 
already made that determination. The comparison I am making is 
only those of Article III courts, as opposed to other criminals 
brought in Article III courts.
    Mr. Mollohan. And I know that was extrapolated, if you 
will, to the mastermind of one of the most heinous crimes 
committed on the domestic shores of the country. I just felt it 
would be useful for you to note that that was not your 
comparison or your analogy and that the facts that would evolve 
there would be totally dependent on the circumstances. I know 
the law is very good about looking at the case, deciding things 
on a case by case basis, and understanding how constitutional 
principles are applied. Again, one measure of the country is 
the extent to which it honors those principles to which we 
affirm.
    Mr. Wolf.

                    GUANTANAMO AS A RECRUITING TOOL

    Mr. Wolf. Thank you, Mr. Chairman.
    I want to just deal with a couple issues that came up from 
my colleagues on the other side. One to say that Guantanamo is 
a recruitment tool. It may be in the eyes of some people, and I 
think there are good people on both sides of the issue, but 
before that time there was the USS Cole before Guantanamo Bay, 
because of Guantanamo there is Khobar Towers, before that there 
was the embassy bombing in Tanzania, before there was the 
embassy bombing in Kenya where somebody from my congressional 
district died. There was the 1993 attack on the World Trade 
Center, and there was 9/11. And I think to say that it is a 
tremendous recruitment tool is almost like saying well if we 
just shut it down or Osama Bin Laden will say, you know, I 
really appreciate what they have done so we are going to kind 
of move off and get into another occupation. There are people 
who want to kill us and do things, so I think it may or may not 
be, and there are good people on both sides, but I don't think 
it is accurate to say that--I think it is overstated to say 
that it is the recruitment tool and we just shut it down.
    Mr. Holder. Well, I wouldn't say it is the only recruitment 
tool, but I would certainly say that when you can have John 
McCain, President Bush----
    Mr. Wolf. Sure, I don't differ. I am just saying, but there 
has been such a emphasis that it is a major, and I don't think 
it is. There is differences of a----
    Mr. Holder. It is certainly a recruiting tool. I wouldn't 
say it is the major recruiting tool, but it is a tool that we 
can take out the hands of those who are trying to recruit 
people to fight us.
    And as I said, you look at those people and you say, ``let 
us close Guantanamo'', Senator McCain, President Bush, Colin 
Powell all said Guantanamo should be closed.
    Mr. Wolf. All good people too.
    Mr. Holder. Yes.

                     INTERROGATION OF ABDULMUTALLAB

    Mr. Wolf. Yeah. Secondly, to go to the other point. On the 
Christmas day bomber there were differences there though. I 
mean the gentleman was interviewed for 50 minutes. The DNI said 
at the hearing, and I watched the hearing, that he was never 
consulted. I assume it was your decision, I think was on the 
record that you make the decision. The DNI said he was not----
    Mr. Holder. Well, I made the decision to do what?
    Mr. Wolf. Excuse me. Then Leiter said he was not informed. 
Secretary Napolitano said she was not informed. So it isn't 
just--there were some interesting things here that people were 
concerned about, and I don't think you had the HIG team on 
board in Detroit at that time with regard to the interview, so 
that is the second thing I just wanted to clear.
    Thirdly----
    Mr. Holder. Well, with regard to that, the determination as 
to whether or not to Mirandize Abdulmutallab on the 25th, that 
was made by the people who were on the scene. I don't think it 
is fair to say this was not the first team. I mean the FBI 
agents who were there, one was an Iran Iraq expert, one was an 
explosives expert. Good people, trained. And I think that as we 
look at this whole question of how we codify this, how we 
arrange this, the one thing I think we should all try to agree 
on is that we don't handcuff the people who are trained at 
these kinds of things, these FBI agents, these DHS agents, and 
DEA agents, so that when they are there and trying to make 
these on the scene determinations, they don't have to worry 
about what is Washington going to think about my----
    Mr. Wolf. Sure, no, I understand that, but that gets back 
to my original. The HIG team was not really involved. And 
secondly, by having the HIG team out there----
    Mr. Holder. Oh, I am sorry, you are saying HIG team. I 
thought you said A team. I am sorry.
    Mr. Wolf. No, the HIG team. Thirdly, it was Christmas day, 
and it is nothing wrong with people wanting to be off on 
Christmas day. If you looked at the interview on 60 Minutes the 
FBI agent Piro, his identification and understanding of the 
head of Saddam, he met with him, he understood, he understood 
culture. It probably would have been better to bring in your 
top person who understands Nigerian culture, the top person who 
understands, and maybe they were out on vacation or with their 
family. That is not bad, I am not criticizing that, but that 
was my point is, it was Christmas day, a spur of the moment, 
and you do have some very good people in the Justice Department 
and very good people in the FBI who had been there and perhaps 
somebody from the FBI it could have been a little different, 
and that was the point I wanted to make.
    Mr. Holder. I don't necessarily disagree with you. I think 
the operation on the 25th was done well. I think it was done 
even better post December 25th in the interaction that we had 
with Abdulmutllab, but I think there are things that we can 
learn from December the 25th, and we need to make sure that we 
do it better every time.

                   POTENTIAL TRIAL OF OSAMA BIN LADEN

    Mr. Wolf. Sure. Thirdly, because I get to two last 
questions. On the Bin Laden question that my colleague asked, 
Mr. Culberson, you sort of dismissed it, you sort of brushed it 
aside, kind of a bump and run and move off. The reality is you 
may very well catch him and he very well may be alive and----
    Mr. Holder. I don't expect that.
    Mr. Wolf. Well, you know, we don't know. We don't know a 
lot of things. Sometimes we don't know what we don't know. But 
if you do catch him, and I think the concern is that you may 
very well be setting a precedent with Khalid Sheikh Mohammed 
case, beheading Daniel Pearl, killing 3,000 people, the 
precedent that you are setting there that if you should capture 
Osama Bin Laden alive, you may very well be setting a 
precedent.
    So my question to you is, if you catch Osama Bin Laden will 
it go to an Article III court or will it go to a miliary court?
    Mr. Holder. I am not trying to dodge this, but I just don't 
think that the possibility of catching him alive----
    Mr. Wolf. Well but we can't----
    Mr. Holder. It is infinitesimal. Either he will be killed 
by us or he will be killed by his own people so that he is not 
captured by us. We know that.
    Mr. Wolf. But Attorney General, that was not a trick 
question. Sincerely, what if we do though catch him alive? That 
is the question.
    Mr. Holder. And what I am saying is that--and maybe I was 
being a little flip with Mr. Culberson--you know, reading 
Miranda rights to his corpse, because I think that is what we 
are going to be dealing with. He is not going to be alive.
    Mr. Wolf. Well but the question was what if he is alive? 
And I think the gentlemen raised a legitimate case. You know, 
from my perspective our government is setting a precedent with 
Khalid Sheikh Mohammed in a civilian court in New York City and 
I think that is the real danger.

                 PROSECUTIONS OF HUMAN RIGHTS VIOLATORS

    Two other questions I wanted to ask you. The Intelligence 
Reform and Terrorist and Prevention Act of 2004 expanded to OSI 
jurisdictions beyond Nazi era cases. We had hearings when I was 
the chairman of this Committee. Since that change, how many 
human rights violators have you successfully prosecuted or 
removed from the country?
    I am continually seeing, I saw the fellow interviewed the 
other day from Somalia. We are finding all these bad people are 
showing up in the country, people who have been involved in a 
genocide in Rwanda where 600, 700,000 people who had been 
killed. We are finding, you know, Charles Taylor's son came in, 
Chuckie Taylor, fortunately the Administration did get him.
    But can you tell us, and maybe this is not the place, can 
you commit that you are aggressively looking and how many have 
you prosecuted? But could you have somebody come by and give me 
the real information and an inventory of all these people who 
have been involved in genocide and crimes against humanity that 
are now living in the United States, you know where they are, 
that you are aggressively going after them to at least deport 
them?
    Mr. Holder. Yes, I can arrange a briefing so that I can 
share with you what the exact numbers are, because I don't know 
them. But one of the things that we need is Congressional 
support for this, I believe.
    Mr. Wolf. What support do you need?
    Mr. Holder. To merge the Office of Special Investigations 
with its counterpart that is responsible for the prosecutions 
of people like Chuckie Taylor. Because we think that if we put 
those two groups together in our Criminal Division that we can 
be more effective at getting at the very people that you are--
--
    Mr. Wolf. I will offer that as a motion at the mark up and 
just tell the gentleman from West Virginia, I will offer that 
as a motion, if your people can come up and give me the 
language, then I will see if I can get that passed, and I will 
also introduce a bill that in case the Judiciary Committee 
doesn't, I can look for another vehicle too, because I think we 
have an obligation to those people who have been persecuted, 
who have gone through this, to have these people that they then 
see living in the United States to be prosecuted and deported.
    Mr. Holder. And I agree with you, Mr. Wolf. And to the 
extent that we can work together on that, I would appreciate 
it.
    Mr. Wolf. That would be good. A good thing to work together 
on that would be good.

 DELAYS IN IMPLEMENTATION OF THE PRISON RAPE ELIMINATION ACT, CONTINUED

    The last thing is I want to go back to the prison rape. 
This is an issue I care deeply about. My office talked to 
somebody who was involved in a prison rape and connected to the 
Justice Department. When Senator Kennedy and Bobby Scott and I 
put this in we wanted this thing passed. I can send you and I 
will send you, and I would ask you on the record if you will 
promise you are going to read them.
    Mr. Holder. Okay.
    Mr. Wolf. Some of the cases of some of these people that 
have been raped. Some are very young too. And we sent a letter 
back in July of this year. Senator Kennedy, Congressman Scott, 
and myself. What you are doing is duplicating everything the 
Commission has done. You are going out on the contract now to 
look at everything. And just because some prison wardens don't 
like this, or the Bureau of Prisons may not like it, the longer 
you delay the more people are going to be raped, period. And 
now what you are telling us is that this will not be in place 
until 2011 and maybe 2012. That is unacceptable. And I don't 
know why you did it. I don't know the operation of the 
Department. This was looked at carefully, and I think to reduce 
the funding for it too sends me a message that the Justice 
Department, whoever is putting your budget together really 
doesn't care.
    I want a commitment you are going to expedite this, move 
this thing through knowing that each and every day that you 
don't do it someone in some prison, maybe a state prison, maybe 
a jail, maybe a federal prison is going to be raped. And so 
what I want to do is we want to pass this thing, we want to 
move this thing, we want to get it out and get it up and 
running, and 2011, it will be year and a half to two years 
late.
    So what can you tell me that you are going to kind of do 
away with this contracting thing out and do what the Commission 
says or do something to make this thing happen fast?
    Mr. Holder. Well, in terms of just funding, and that is 
what I was looking at here, we have total funding of over $16 
million available to us in 2010, $5 million in 2011, plus our 
current funds are really sufficient to finish the survey 
process and to provide implementation and help to our state and 
local partners. So we think that with the money that we have, 
we are capable of doing the job that you want done and a job 
that I want to have done. We don't want to do this in a 
slipshod way, we want to effect substantive real change so that 
the horrors that are too often visited upon people in our 
prisons are eliminated.
    I look forward to working with you on that. I mean, we are 
on exactly the same page on that one. This is something that I 
think needs to be done not tomorrow, but yesterday. And to the 
extent that we are not being as efficient, not being as 
aggressive as we need to be, it is good for you to bring that 
to my attention.
    But I can tell you, I am sincere in my desire to make sure 
that we get this done as quickly as we can. I think we have 
sufficient funds to do it. I think the process that we have 
laid out will make sure that the changes that we implement will 
be ones that will have a substantive impact. It will not simply 
be things that you see on paper but don't affect the lives of 
people in prisons. That is my goal.
    Mr. Wolf. I think it is fair to say most members of the 
Commission don't agree with you, and I think you knew the 
chairman of the Commission, Reggie Walton.
    So with that, Mr. Chairman, I yield back.
    Mr. Mollohan. Mr. Schiff.
    Mr. Schiff. Thank you, Mr. Chairman.

              GUANTANAMO AS A RECRUITMENT TOOL, CONTINUED

    I just want to quickly address a couple of the comments 
that were made about Guantanamo. In addition to Colin Powell 
and President Bush advocating for the closure of Guantanamo, 
the assessment of military commanders within DoD is that 
closing Guantanamo is a national security imperative in the war 
against Al-Qaeda. That is according to John Brennan, the 
Assistant to the President for Homeland Security and 
Counterterrorism. Secretary Gates, Admiral Mullen, and General 
Petraeus have all stated that closing Guantanamo will help our 
troops by eliminating a potent recruiting tool.
    My colleague, I think, sets up a straw man argument that 
because many of us, including the Defense Secretary, believe 
that GITMO is a recruiting tool, that we are somehow arguing if 
you close Guantanamo it will end the war on terrorism. Of 
course no one has ever made that claim. But I have yet to hear 
the advocates of keeping Guantanamo open, acknowledge any merit 
to the propaganda tool it has served for Al-Qaeda and the 
downside of keeping that open.

        PAST PROVISION OF MIRANDA WARNINGS TO TERRORIST SUSPECTS

    I also, again in terms of the criticism regarding the 
arrest and Miranda advisement of Abdulmutallab, I think that 
argument would have a lot more policy weight and a lot less 
political overtone if these same folks who are attacking this 
Administration now, had leveled any criticism of Attorney 
General Ashcroft when the shoe bomber was arrested, which 
coincidentally was also a December almost Christmas day, I 
think December 21st, effort to blow up an aircraft, and he was 
advised of his Miranda rights within the first five minutes, 
and was advised a total of four times within 48 hours. And I 
don't remember hearing a peep of criticism of the Bush Justice 
Department at that time.
    So again, you know, I think we ought to try to keep the 
politics out of this and not be selective in our criticism.

                      MEXICAN FIREARMS TRAFFICKING

    Let me turn to another subject though, and that was one 
raised by my colleague, Mr. Honda, and that is the spiraling of 
violence in Mexico. I had a chance to sit down with your 
counterpart, the Mexican attorney general two months ago who 
talked about the mutually destructive trade between our 
countries with narcotics flowing north and weapons flowing 
south, and in particular just the prevalence of American 
weapons being imported into Mexico, sold through straw 
purchases or acquired at gun shows or through whatever 
mechanism.
    And I wanted to ask you how we can do more to stem that 
flow of weapons into Mexico. You know, we were devastated to 
see the loss of our consulate official and his wife, in some 
horrific violence, and of course thousands of Mexican citizens 
are dying every year in what looks increasingly like Columbia 
used to look.
    So I would be interested to know whether you think there 
are any legal changes that are necessary to crack down on this 
high volume of trafficking of weapons into Mexico. You know, 
one disparity, for example, is you are required to disclose I 
guess if someone buys five or more handguns a month, but if 
they come and they buy five or more assault weapons you are not 
required to disclose it, and so you don't have those law 
enforcement kind of leads. As we recall in the Excalibur case 
some of the efforts to crack down on even high volume sales to 
straw purchasers are problematic. And you know, one of the 
issues too may be do we have the resources and the priority 
among the U.S. Attorney offices to go after even the straw 
purchasers in a way that will let us climb the chain much as 
sometimes you have to go after the drug runners to go after the 
cartel leaders.
    So if you could share your thoughts on how we can 
contribute to the effort in Mexico by stopping the flow of 
weapons into Mexico.
    Mr. Holder. Well, I think one of the things that we need to 
do is to make sure that we have an ability from our Mexican 
counterparts to look at really basic things, such as the serial 
numbers on guns that are found in Mexico, so that we can trace 
them and find where they are being sold. What our history tells 
us is that a relatively small number of gun stores supply a 
disproportionate number of guns that are used in violent 
crimes, both in the United States and certainly in Mexico. We 
focus our attention, using our ATF and state and local 
counterparts, on those places where there is evidence and a 
predicate to believe that they are engaged in the sale of 
weapons that end up in Mexico through straw purchases or 
illegal sales to people with felony records. We follow the 
evidence back to those places that are the sources of these 
guns. I think one of the ways in which we can do that is by 
having a good interaction with our Mexican counterparts and by 
looking at the weapons that are seized. We have warehouses of 
these things, and they need to be preserved at least long 
enough for American law enforcement to get there and to obtain 
serial numbers and then try to trace those serial numbers.
    Mr. Schiff. Do we need to look at some of the sentencing 
provisions as well? I was informed at a meeting with some of 
your colleagues and ATF and was informed about a recent case 
where someone was convicted of gun running into Mexico, I think 
1,000 weapons were involved, and the sentence was 30 some odd 
months. That seems like an awfully light sentence for someone 
that is illegally exporting into Mexico 1,000 weapons, you 
know, and we may see several killings as a result of those guns 
being illegally trafficked in the countries. Do we need to look 
at whether we have sufficient sentencing deterrents in place?
    Mr. Holder. I am not familiar with that case, but I think 
that is a very legitimate question that we should ask and look 
not only at that case, but at a larger number of cases to see 
who is it that is getting convicted of gun running to Mexico 
and what kinds of sentences they are getting. If they seem to 
be low, is it because the penalties that we have in the 
statutes are too low or is there something else that is going 
on? I think that is a very legitimate inquiry that we should 
engage in. We have to have a deterrent effect. We can't make 
this something that people do with the thought that, if caught, 
they are not going to face a very substantial penalty given the 
impact that it has in Mexico. But not only in Mexico, the 
impact that it has in the United States. It makes the cartels 
stronger in Mexico and gives them a greater capacity to ship 
drugs to our country. As you know, the violence we see along 
our border is only fueled by these same weapons.
    Mr. Schiff. Thank you, Mr. Chairman, and I yield back.
    Mr. Mollohan. Mr. Culberson.
    Mr. Culberson. Thank you, Mr. Chairman.

        PROVISION OF MIRANDA RIGHTS TO TERROR SUSPECTS CONTINUED

    Mr. Attorney General, the Miranda case of course is 
designed to preserve the admissibility of evidence in a court 
proceeding. Do you believe Miranda is essential in order to 
preserve the admissibility of evidence in criminal court 
proceedings against the--for example, these enemy combatants 
brought to trial in Article III courts?
    Mr. Holder. Well, it depends on the situation. For 
instance, that initial interaction with Abdulmutallab, there 
was no need for Miranda warnings under the public safety 
exception to Miranda. There are a number of exceptions to the 
Miranda rule that I think are appropriate and that law 
enforcement can use in questioning, gaining intelligence----
    Mr. Culberson. Excited utterance?
    Mr. Holder. Excited utterance. There are a whole variety of 
things. The Supreme Court said, not too many years ago, that 
the Miranda warning regime was a constitutional dimension. It 
was a seven to two opinion, I think.
    Mr. Culberson. You mentioned a moment ago, sir, that the 
people on the scene made the decision to provide Miranda 
warnings to the Christmas bomber. I just wanted to confirm that 
if I understood you correctly. Who did authorize the Miranda 
warnings to be given to the Christmas bomber?
    Mr. Holder. That was done by people on the scene, but 
although I was not involved in that, I think that the decision 
was correct.
    Mr. Culberson. And the purpose of the questioning. If the 
purpose of the questioning of an individual is to gather 
intelligence, are they entitled to Miranda warnings?
    Mr. Holder. Well, again, it depends. A byproduct of the 
questioning that was done of Abdulmutallab, justifiably done 
under the public safety exception, was the acquisition of 
intelligence information. We were also trying to determine 
whether there were other people in other planes, other people 
in the same plane, that he was on.
    I have heard a lot said about the fact that he was only 
questioned for 50 minutes. That is a fairly long period of 
time. It certainly is not as long as what has happened 
subsequent to that. If you look at the report of the interview 
that was gotten from him in that 50 minutes, or hour, there was 
a pretty substantial amount of information that was received 
from him that proved to be actionable, that proved to be 
timely, and that continues to be, at least in some ways, the 
basis for a lot of the cooperation that he has shared with us.
    Mr. Culberson. Since you have made the decision to try KSM 
in a U.S. court, wouldn't all of incriminating statements be 
inadmissible because he was not advised of his--not given his 
Miranda warnings?
    Mr. Holder. This is something I really can't get into too 
much. There are a variety of statements that are available for 
our use in that trial, some of which have no Miranda issues at 
all.
    Mr. Culberson. So when he raises the objection in--as he 
will when he is brought before a federal judge--when his 
lawyers raise the objection that he was not given a Miranda 
warning, what will be the position of the Department of 
Justice?
    Mr. Holder. In the Article III trial that we would present 
there would not be a basis for a Miranda challenge.

        USE OF CIVILIAN TRIALS AS A TOOL IN THE WAR ON TERRORISM

    Mr. Culberson. Mr. Chairman and Mr. Attorney General, this 
is why this is such a--I mean this is just one piece of why it 
really is a sincere concern to the people of Texas that I 
represent, to me, my colleagues, that the approach of the 
Department of Justice and the Obama Administration is that this 
is a law enforcement action that in this war on terror is in 
fundamentally a law enforcement action like the war on crime, 
and it is not. We are at war. And Texans understand when you 
are at war the goal is to hunt down your enemy and kill them or 
capture them.
    And in particular in this case, this war requires that the 
President of the United States as Commander in Chief be given 
full discretion authority to use whatever tools are at his 
disposal as the Supreme Court has ruled repeatedly, and 
specifically referring to the Hamdi versus Rumsfeld case, the 
Supreme Court said that in reversing the Second Circuit Court's 
decision in Padilla that a citizen of the United States, 
according to the Supreme Court, no less than an alien can be 
quote ``part of or supporting forces hostile to the United 
States or coalition partners and engaged in an armed conflict 
against the United States.'' And if U.S. citizen if released 
would pose a threat of returning to the battlefield as part of 
the ongoing conflict, then that U.S. citizen can be held in 
detention through the military tribunal system because we are 
at war. And that is my concern, and it is a very deep seeded 
and earnest profound disagreement with the approach of the 
Administration that this is not law enforcement, we are at war.
    And as Mr. Wolf quite correctly said through the KSM case, 
set the precedent that when Osama Bin Laden is captured, and 
you didn't answer the question directly, but it is a very 
legitimate one, if Osama Bin Laden is alive, because his role 
is equivalent to that of KSM, would you try him in a civilian 
court?
    Mr. Holder. As I said, I don't expect that Osama Bin Laden 
will face justice in a military commission or in an Article III 
court.
    Mr. Culberson. Right, odds are. But if he is captured alive 
where will he be tried?
    Mr. Holder. Again, I----
    Mr. Culberson. If he is captured alive?
    Mr. Holder. I think that is speculation. You are asking me 
about something that, on the basis of all the intelligence that 
I have had a chance to review, the possibility just simply does 
not exist.
    Mr. Culberson. It is profoundly concerning to me, to the 
people of Texas, I know I saw it in the polls in the 
Massachusetts, that because of the precedent you are setting in 
the KSM trial, because of the precedent that you are setting in 
the Ghailani trial, because of the precedent you are setting in 
granting constitutional rights to enemy soldiers in time of war 
that your approach to the war on terror is as though it is a 
war on crime in fighting gangs or murderers and the cities of 
the United States, and it is not, we are at war, and it is 
completely different.
    Mr. Holder. As I have said, I don't know how many times, is 
that I know we are at war. And let me make this clear, let me 
make this very, very, clear. If you were to take away from the 
Justice Department, from this Government, from this 
Administration and subsequent administrations, the ability to 
use Article III courts you would weaken our ability to 
successfully fight these wars. It is as simple as that.
    This tool that we are talking about is only one tool that 
we have in our arsenal, and to take that tool away and to say 
these are people who can't be tried would weaken our ability to 
ultimately be successful.
    Before you asked the question about examples of people 
caught on the battlefield and prosecuted in court.
    Mr. Culberson. Foreign nationals.
    Mr. Holder. Foreign nationals. This woman Siddiqui was 
caught in Afghanistan, shot at military soldiers there, 
indicted in New York by the Bush Administration. Wesam al-
Delaema is an Iraqi born Dutch citizen who was tried in D.C. 
for planting roadside bombs targeting U.S. soldiers in Iraq.
    Again, minor examples, perhaps you would say, but 
nevertheless examples of people who committed acts overseas and 
were tried here in American courts. But the thing that I want 
you to focus on in the Ghailani case is that it is consistent 
with what happened in the Bush Administration with the other 
people who were responsible for the embassy bombings. If you 
take away this Article III tool, and it is not the only thing 
that we use, if you take it away you are unnecessarily taking 
away an effective tool, and one only has to look at what has 
happened this year in terms of who we have incapacitated, who 
we have gotten viable intelligence from, who we will be 
sentencing for extended periods of time in the coming months.
    Mr. Culberson. And I am not suggesting take it away, it is 
just that you turn to it too readily, and the approach of the 
Administration and the Department is that this is a war on 
crime, and it is really not, we are at war.
    And the two cases you mention, I want to make sure, because 
this is the first time in public testimony you have ever 
identified. Tell me again the name of those cases, because I am 
unaware of any example in American history.
    Mr. Holder. Just don't ask me to spell them.
    Mr. Culberson. Okay.
    Mr. Holder. Aafia Siddiqui, that is the woman who was just 
convicted in New York. She was caught in Afghanistan, shot at 
military soldiers, and tried in New York by the Bush 
Administration.
    Mr. Culberson. And she is a foreign national?
    Mr. Holder. A foreign national.
    Mr. Culberson. Okay.
    Mr. Holder. And Wesam al-Delaema.
    Mr. Culberson. Okay.
    Mr. Holder. Iraqi born Dutch citizen tried in D.C. for 
planting roadside bombs targeting U.S. soldiers in Iraq.
    Mr. Culberson. Okay, and both of those were sent to 
civilian court by the Bush Administration?
    Mr. Holder. Yes.
    Mr. Culberson. Okay, I will run those down. Those are ones 
that none of us have ever been aware of before because in 
granting constitutional rights to these folks and giving them 
the opportunity to as in the Ghailani case, file a motion to be 
released or charges dismissed because the failure to provide a 
speedy trial, it gives an opportunity to our enemies not only 
to have these people releases and freed, chain of evidence 
wasn't preserved, can't prove beyond a reasonable doubt, speedy 
trial, et cetera, that they would not have in military 
tribunal. That is a huge concern.
    Mr. Holder. You raise good points there. Looking at an 
individual case that had those kinds of problems, if I were 
convinced that those problems existed and they could not be 
cured in an Article III court, I would have the option of 
trying that matter in the military commissions. There are a 
variety of factors that go into this, and that is why I say it 
is done on a case by case basis. What will be best for this 
case.
    Mr. Culberson. Yes, sir. I am sure I am just about out of 
time. The Chairman is very gracious. May I ask one very short 
follow up?
    Mr. Mollohan. We will be back to you in another round.
    Mr. Culberson. All right, sir, thank you.
    Mr. Mollohan. We will be back to you. Mr. Serrano has 
waited a long time. Mr. Serrano, we have had a number of 
rounds, so please feel free to ask your questions. We will give 
you plenty of time.

                  HOLDING 9/11 TRIALS IN NEW YORK CITY

    Mr. Serrano. Thank you so much, Mr. Chairman. I apologize 
for being late. I was interestingly enough at a hearing where 
we were discussing compensation for the victims of 9/11.
    Mr. Attorney General, I am in a very, very unique or small 
minority. I am the only elected official in New York who still 
thinks it is fine to have those trials in New York. And I think 
it is important to know why I feel that way, but it is also 
important to know how it came to be what it is now.
    When it was first floated or introduced as a thought that 
we could do this in New York, everyone I remember was in favor 
of it, and everyone said it was the right thing to do. And then 
something happened. And what had happened is not what people 
throughout the country think happened. It wasn't a community 
that spoke up, it wasn't elected officials, it was the business 
community that said they were concerned about traffic jams in 
lower Manhattan. Traffic jams in New York City--that is 
redundant. This should not be a shock to anybody. Ironically 
the people who lost so much business during the attacks and the 
aftermath of the attacks were now complaining about this 
congestion in downtown Manhattan. And little by little you 
began to see this turning around of elected officials, 
colleagues of mine, friends of mine, people I have served with 
for many years who were rah, rah, rah for having the trials in 
New York and then all of a sudden they are all against it.
    Next thing you knew something which I still don't 
understand, but I respect, the families of victims turned 
against having the trials in New York. Somehow this was an 
insult to their memory to do it in New York. I see the world 
differently. The best respect you can pay victims is to say 
that as a country they may have killed some of us, they have 
maimed many of us, but they have not defeated us as a country, 
and that we are not afraid to try people at the scene of the 
crime, and that we are not afraid to try them within our court 
system. That is the way I feel.
    I was one of the few elected officials who was not in 
Washington that day. I was in New York City. My son, who is now 
a state senator, was running for the city council. Very few 
people wrote about the fact that elections were interrupted 
that day. Amongst all the things the terrorists accomplished, 
one was to disrupt an election, which stands at the center of 
our democracy. And I remember the pain that day and the 
aftermath of that pain and everything that we are still 
discussing today, and yet there is this feeling that somehow if 
we hold trials in a civilian court and if we do it in New York 
we are dishonoring these folks and we are opening ourselves to 
more terrorist attack.
    Well if there are people who are upset at the fact that we 
are going to put people on trial, does it matter whether we put 
them on trial in New York, in Duluth, Minnesota, or Waukegan, 
Illinois? With all respect to Duluth and Waukegan. They are 
going to be angry regardless of what we do. And if we do it in 
a military court they will be angry, if we do it in a civilian 
court they will be angry. If they are going to be angry they 
are going to be angry. And if New York City is going to be 
under the possibility of an attack because of that I would 
submit to all of us that New York City lives with the 
understanding that it is still the main target for any 
terrorist group. It is the main target. It is the Big Apple 
that people love to hate, but it is a symbol of who we are as a 
country. Of the strength and the financial community.
    And so I know when an issue has left me, and it is not one 
I want to devote a lot of time to in the next few months. That 
train may have left the station already. In fact I think it 
has, because every elected official now thinks this is the 
worst thing you could do. But at least know that there is one 
elected official in New York City who feels that there was 
nothing wrong with trying them there. On the contrary, I 
thought it was very dramatic to say we are not afraid of you, 
we will try you at the scene of the crime, we will try you in 
our courts, and we will show you that you can't defeat our 
judicial system, and you can't defeat us as a people. And I 
just wanted to make that statement to you, sir.
    Mr. Holder. Thank you, sir. For those who don't know, I was 
born and raised in New York City. I was born in the Bronx, 
spent my first years in Manhattan, was raised largely in 
Queens, went to high school, college, and law school in 
Manhattan. I am a New Yorker. My brother lost many people. He 
is a retired Port Authority lieutenant, he lost colleagues, 
people who went to training school with him, that day.
    The decision that I made, I thought, was the right one for 
that case. But there was, very frankly, an emotional component 
to that as well; what was I doing to my city? I think the 
decision that I made was good for the case and, ultimately, 
that is what I had to focus on. But I appreciate the 
observations that you have made.
    I think that we should have great faith in the resilience 
of our systems, resilience of our people, and the toughness 
that has always separated Americans from other peoples in this 
world and what has made this country.
    You might be right that the train has left the station, it 
is certainly a factor that we are working with as we try to 
determine where this should occur. But on a very personal level 
that was at least a part of my thinking.
    Mr. Serrano. Thank you. Mr. Chairman, do I have time to ask 
a question?
    Mr. Mollohan. You have all the time you want.

                     HATE CRIMES AGAINST IMMIGRANTS

    Mr. Serrano. Thank you. We discussed this in the past, it 
keeps growing as an issue, and that is hate crimes against 
immigrants. As we get closer to perhaps discussing immigration, 
as the economy continues to hurt, as we continue deportations 
and raids, I think it could only get worse before it gets 
better.
    I know you have been strong on trying to do something about 
this whole issue, but I think we need to continue to call the 
attention of this Congress and the American people to the fact 
that there is another category of hate crimes, and that is 
people who are attacked because they are immigrants, because 
they look like immigrants, because somehow before they are 
attacked no one asks whether they are here illegally or not, 
whether that--doesn't make a difference, but it encompasses a 
lot of people.
    And again, I want to be clear, what I was saying was not 
that because you are illegal you should be attacked, but it 
doesn't matter to people if you are an immigrant or you look 
like an immigrant they are going to attack, and it is something 
that we have to deal with. And I am wondering just what 
programs you are putting in place and new actions that the 
Justice Department will be looking at as we deal with this very 
serious issue.
    Mr. Holder. Well, we certainly have a new tool, a very 
substantial new tool, the Matthew Shepard and James Byrd Act, 
that was finally passed. I testified on behalf of that statute 
when I was Deputy Attorney General about 10 or 11 years ago, it 
was finally passed in October of last year. That gives us tools 
that we didn't have before, and that is a tool that we will use 
to get at the kinds of victims that you have described.
    We have in our budget for next year a $1.4 million increase 
so that we can hire 14 attorneys in our Civil Rights Division. 
This is a priority for this division. Tom Perez is the 
Assistant Attorney General for the Civil Rights Division, he 
has energized that place. He has the division focusing on the 
things that it has traditionally been focused on. Hate crime 
prevention and hate crime prosecutions are one of the key 
things that I have asked Tom to focus on in the Civil Rights 
Division, and I am confident that, with these additional 
lawyers and with this additional statute, that we will be 
successful. That is a priority for us.
    Mr. Serrano. I thank you for that, and I just again 
reiterate the obvious, that the President has said publicly, 
and he certainly told Members of Congress that went to see him 
last Friday, that he wants to work on an immigration reform 
bill, and that is great news, continues to be great news, but 
as you know, that will only inspire a few people in this 
country to commit even more hate crimes because somehow those 
people are going to be legalized and they have to be dealt with 
and be taught a lesson.
    So I would hope that we stay very vigilant as this period 
takes place. Thank you.
    Thank you, Mr. Chairman.
    Mr. Mollohan. Thank you, Mr. Serrano.

               INTERROGATION OF ABDULMUTALLAB, CONTINUED

    Mr. Attorney General, for those terrorist suspects that we 
are talking about trying in Article III courts, the premise or 
the concern around the Miranda rights are that we won't get 
good information from them. So just a little bit of questioning 
with regard to that.
    First of all, with regard to Abdulmutallab, the Christmas 
bomber, a timeline. Correct me to the extent that I am in error 
here, but I would like to lead you through this just a little 
bit. He was taken into custody by security officials at the 
airport first, I believe, and then taken to the hospital. He 
was then interviewed by the FBI team, which as you described 
was a pretty sophisticated group of people.
    Mr. Holder. Right. I am not sure, but I believe that is the 
correct timeline and the correct people who interacted with him 
along the way.
    Mr. Mollohan. So up to that point, Miranda rights are all 
preserved because that is obviously, I think, a public safety 
exemption to the necessity for issuing Miranda rights. When 
questioning somebody in the heat of an arrest, or in the 
aftermath of an event, because you do have public safety 
concerns you are more interested in that than you are in----
    Mr. Holder. Yes. And I also think you can argue that it was 
not at least in those initial times, you could argue he was not 
in a custodial situation.
    Mr. Mollohan. Okay. So he was questioned for some period of 
time without Miranda rights, correct?
    Mr. Holder. Correct.
    Mr. Mollohan. Then he was treated in the hospital, and, 
after he was released, he was Mirandized; is that correct?
    Mr. Holder. He was. He was Mirandized by a different team, 
a clean team as we call it. I think it was interesting that 
their view was that he came out of that procedure a different 
person. That he was more, for lack of a better term, warrior 
like, and I am not sure, that is, I am not convinced, this is 
Eric Holder's personal opinion, I don't think it was the 
Miranda warnings that made him decide not to talk. I think it 
was something within him that took him back to where he was 
immediately before he ignited the bomb, he became that person 
again. That is why I think he answered a few questions in that 
second interaction, but not many, and then ultimately decided 
he did not want to continue the conversation.
    I think we should never forget that in the days that 
followed that, actually in the weeks that followed, that he has 
been talking.
    Mr. Mollohan. You are getting my point, but you are getting 
ahead of my point. My first point is that he was interviewed by 
a qualified team, and I don't know what justification there 
would be for undermining the qualifications of the team. These 
are professional people out in the field who are trained in 
this area.
    Mr. Holder. The people did that first one hour, 50 minute, 
interview were good, trained FBI agents. One thing I should 
clear for the record, to the extent that I said that the 
determination was made only by them, with regard to the whole 
Miranda warnings question, that was not done only by them. It 
was also done in conjunction with people at FBI and Justice 
Department headquarters. I was not involved, but other people 
at higher levels within the Department made those decisions.
    Mr. Mollohan. Okay. So the suspect was interviewed prior to 
being Mirandized, was Mirandized, and was subsequently 
questioned after being Mirandized. He was difficult right after 
getting out of treatment, but subsequently I think your 
testimony has been a number of times that a lot of good 
information, or perfectly good information, was gotten after 
being Mirandized.
    Mr. Holder. Right. What people should understand is that 
there are studies in those briefs that we have heard about, I 
don't have it in front of me, that substantial numbers of 
people will, even after they are Mirandized, continue to talk. 
Two, once they are provided with lawyers, the lawyers can make 
a more objective determination of the fix that their clients 
are in. The defense lawyers frequently become, not advocates 
for the Government, but advocates for their client, in the 
sense that they tell an Abdulmutallab, ``Unless you want to 
spend the rest of your life in a super max facility, you better 
start sharing information with the Government.''
    I don't want to get into a specific case, but it frequently 
happens that the defense lawyer helping his client also helps 
the Government.
    Mr. Mollohan. I think that is the point I really wanted to 
get to. If the premise of those who argue that a person should 
be questioned without Miranda rights is that better information 
is received prior to, or by techniques which are employed 
without, Miranda rights, that is a premise they would have to 
prove. It is certainly contested in the public debate. That is 
a premise that has not been established or laid before.
    So my point is that we should us not presume that pre-
Mirandized information, or never Mirandized information, is 
better information. It is simply, as I understand it, not an 
accepted premise among the profession. Your comment?
    Mr. Holder. I think you raise a very good point. It is one 
that I would throw back at those who have criticized us for 
using the criminal justice system and the Miranda requirement. 
``Well, what is your proof that if he were whisked off to a 
military facility and questioned by military people, even 
without the presence of a lawyer, that information you would 
receive would have been more voluminous, would have been 
better?''
    There are psychologists we have consulted who say that the 
presence of military people in uniform makes them perhaps maybe 
warrior like.
    Again, I would try to look at the facts and the experiences 
that we have had, and the use of the criminal justice system to 
get information from Abdulmutallab, from Zazi, from Headley, 
and from a whole variety of cases that we have had this year. I 
think it shows the efficacy of that system and the efficacy of 
that approach.
    Mr. Mollohan. Okay. Well my point is that the premise that 
I think is assumed in this line of questioning is that the 
information is better when the person is not Mirandized as 
opposed to when they are Mirandized. That is not proven and is 
contradicted in a whole lot of testimony, including yours here 
today.
    We just had three bells. That means we have 15 minutes to 
vote, but it will probably last longer than that. We are going 
to divide up the remaining time between myself and the other 
members who were here roughly equally, so it will be kind of a 
rapid fire here, Mr. Attorney General. Then after that, we are 
going to adjourn the hearing.

              PREVIOUS TERRORIST TRIALS IN CIVILIAN COURT

    I want to get on the record clearly that there have been a 
significant number of terrorist cases tried in Article III 
courts during different administrations, both Republican and 
Democrat administrations. Is that correct, sir, and can you 
give us a little detail on that?
    Mr. Holder. That is absolutely correct. There were 
terrorism cases that were tried in Article III courts in the 
Bush Administration. I don't have the exact number here, but I 
am pretty sure it is close to about 150 or so. Ramzi Yousef, 
the original World Trade Center bomber, was tried in Article 
III court. The blind sheik. There are a number of high profile 
terrorism cases that were tried successfully in Article III 
courts.
    Mr. Mollohan. They were tried in Article III courts during 
the Clinton Administration, the Bush Administration, and now in 
President Obama's Administration.
    Mr. Holder. Right, that is correct.
    Mr. Mollohan. Terrorist suspects tried in Article III 
courts. Convicted?
    Mr. Holder. Convicted, yes.
    Mr. Mollohan. And serving time in?
    Mr. Holder. Federal prisons.
    Mr. Mollohan. Federal prisons in the United States. Thank 
you.

                           WHITE COLLAR CRIME

    There is a lot of interest in the extent to which criminal 
fraudulent conduct may or may not have been involved in the 
financial crisis that the country has just experienced and is 
trying to fashion regulations to prevent. Can you speak to your 
department's efforts to address that question and the status of 
your investigations?
    Mr. Holder. We have put together a financial fraud 
enforcement task force that marries a group of federal 
executive branch agencies with our state and local 
counterparts, chiefly attorneys general.
    Mr. Mollohan. The Financial Fraud Enforcement Task Force?
    Mr. Holder. Exactly. With state attorneys general to look 
at a whole variety of financial fraud. Everything from mortgage 
fraud to securities fraud. A case brought just yesterday in the 
Southern District of New York involving a bank and one of the 
first TARP criminal cases was brought by the financial fraud 
enforcement task force.
    That is something that is very broad in scope to look at, 
the entirety of financial fraud activity that may have 
contributed to the economic downfall that we saw, but to the 
extent that these crimes exist, we are determined to find the 
people responsible and to hold them accountable.
    Mr. Mollohan. The task force includes the Treasury 
Department, HUD, SEC, and various inspector generals. It looks 
like a broad base. Does your budget request anticipate greater 
activity with regard to that task force going into 2011?
    Mr. Holder. Yes. We have increases with regard to corporate 
fraud; DOJ opened an 11-percent increase and with regard to 
corporate, mortgage, and other financial fraud DOJ wanted an 
increase request of 23 percent.

                             ADAM WALSH ACT

    Mr. Mollohan. Mr. Attorney General, the Adam Walsh Act was 
passed in 2006, as you know, but we are still struggling to 
fully implement it due to a lack of funding. Has the Department 
quantified what it would cost you to fully fund and implement 
the Adam Walsh Act? If you have not, could you submit that for 
the record?
    Mr. Holder. Sure. Let me submit something for the record, 
just so that I can be more precise in my answer.
    [The information follows:]

             Full Cost and Implementation of Adam Walsh Act

    The Department of Justice (DOJ) does not have an estimate for the 
full implementation cost of the Adam Walsh Act (AWA). However, the 
Department is working with DOJ components to quantify the resource 
requirements associated with the full implementation of the Act. Once 
completed, the Department will share the cost projection with the 
Appropriations' Committees. The Department has already identified 
current resources appropriated for AWA enforcement. In FY 2008, the 
Department's resources for AWA enforcement, excluding grants, was $116 
million. The FY 2011 President's Budget requests more than $165 
million, excluding grants, for the Department to enforce the Act. The 
overall growth of the Department's resources for AWA enforcement, 
excluding grants, from FY 2008 enacted to the FY 2011 request is 42 
percent.

    Mr. Mollohan. Just to get a little support on the record 
from the executive for Adam Walsh, I was heartened to hear that 
President Obama recently committed to John Walsh that he would 
get the Act fully funded. Although clearly the 2011 request 
doesn't do that. Do you have a strategic plan, or is one being 
developed, to ramp up the program over time?
    Mr. Holder. Yes. We are determined to make real the Adam 
Walsh Act. As the President indicated, we are looking at about 
a 20 percent increase in funding for next year, and I think 
that over a year we will be looking at those kinds of increases 
even in spite of the economic downturn that we have to deal 
with and a deficit reduction that we have to engage in.
    Mr. Mollohan. And you are going to submit for the record--
--
    Mr. Holder. Yes, I will.
    Mr. Mollohan [continuing]. What it would cost to fully 
implement that Act, and, if you would, your plan for ramping it 
up to full funding and how many years that would take.
    Let me note quickly, certainly with approval, that I 
applaud your request with regard to the Indian nation's 
leadership council. I feel confident it will help the 
Department coordinate tribal leaders and be more responsive in 
their campaign.
    I think we all understand the ambiguities and 
jurisdictional difficulties of law enforcement in Indian 
territory, and the terrible consequences that result. This 
Committee certainly is sensitive to that. Our bill last year 
reflected our interest in increasing resources for law 
enforcement in Indian territory, even given these 
jurisdictional challenges. I want to compliment you on your 
budget, because you have significantly increased funding for 
maybe one of the most unnoticed issues in the country with 
regard to law enforcement.
    Mr. Wolf.

               INTERROGATION OF ABDULMUTULLAB, CONTINUED

    Mr. Wolf. Thank you, Mr. Chairman. I am going to submit a 
lot of questions for the record, but on the issue of timeliness 
and Miranda, the press announcement materials provided to the 
Congress last fall stated that the principal function of 
interrogations of high value detainees is quote ``intelligence 
gathering rather than law enforcement.'' One.
    Secondly, I have talked to a lot of people, some in your 
department who are experts, they said you missed it on the 
timeliness. Timeliness is very important.
    To have shown him pictures of Guantanamo people that have 
been sent back, to show pictures to the Christmas day bomber 
could have said did you see this man, did you see this man, did 
you see this person? You didn't have enough time to do that.
    Also what location were you in? Were you in this location, 
what building were you in, what address, who did you see, who 
were you with, who else was in the class?
    I mean there were so many things that could have been 
missed. So I mean, there was an opportunity that was missed and 
we will never get it back again.
    Mr. Holder. That is simply not true.
    Mr. Wolf. It is true. It is true.
    Mr. Holder. It is not true.
    Mr. Wolf. We missed opportunities. Because once we missed 
them----
    Mr. Holder. That is not true.
    Mr. Wolf. Well it is true.
    Mr. Holder. I know.
    Mr. Wolf. Well, I say it is true, and you say it isn't 
true, but people that I have talked to said you missed an 
opportunity----
    Mr. Holder. I have had access to the documents.
    Mr. Wolf. You never had the pictures with you to show him 
in Detroit at that time.
    Mr. Holder. It is not true.
    Mr. Wolf. You never had the pictures to show.
    Lastly on the prison rape thing.
    Mr. Holder. That is not true. For the record, that is not 
true.
    Mr. Wolf. Well, I believe it is based on the information 
that I have.

                HUMAN RIGHTS WATCH REPORT ON PRISON RAPE

    On the prison rape thing I am going to end by reading this. 
This is from Human Rights Watch. No escape: Male rape in U.S. 
prisons. ``Preface.'' ``I have been sentenced for a DUI 
offense, my third one. When I first came to prison I had no 
idea what to expect. Certainly none of this. I am a tall male 
who unfortunately has a small amount of feminine 
characteristics and very shy. These characteristics have got me 
raped so many times I have no more feeling physically. I have 
been raped by up to seven men at one time. I have had knives at 
my head and throat. I fought and I have been beat so hard that 
I didn't even think I would see straight again. One time when I 
refused to enter a cell I was brutally attacked by staff and 
taken to segregation. Though I had only wanted to prevent the 
same or worse by not locking up with my cell mate. There is no 
supervision at the lock down. I was given a conduct report. I 
explained to the hearing officer what the issues were. He told 
me that off the record he suggested I find a man that I can 
willingly have sex with to prevent these things from happening. 
I requested protective custody only to be denied. It is not 
available here. He also said there was no where to run and it 
was best for me to accept things. I probably have AIDS now. I 
have had difficulty raising food to my mouth and from shaking 
after nightmares of thinking how this all is. I have laid down 
without physical fight to prevent so much damage and struggles 
that when fighting it has caused my heart and my spirit to be 
raped as well, something I don't know if I will ever forgive 
myself for. This has gone on and the longer you delay it the 
more this will happen.''
    I yield back the balance of my time.
    Mr. Holder. Again for the record, I share, as I indicated 
before, the concern that you have expressed. That story is a 
horrible one, and we are committed to doing all that we can as 
quickly as we can to deal with those kinds of situation.
    Mr. Mollohan. Mr. Culberson.

                LEGAL TECHNICALITIES IN TERRORISM TRIALS

    Mr. Culberson. Thank you, Mr. Chairman. Mr. Attorney 
General and Mr. Chairman it is my concern and I know the 
concern of my constituents and all my colleagues, it is not 
just the quality of the information that we would obtain with 
or without Miranda, it is our worry is that these people will 
be released on technicalities, that they will go free because 
they were given constitutional protections by this 
Administration that foreign nationals in time of war have not 
been given previously. I am still trying to run the two 
individuals you gave me. Mr. Chairman, I do know for a fact 
that Richard Reid was arrested at a time when there was no 
military commission, that is why he was sent to civilian court.
    Your testimony, Mr. Attorney General, that Siddiqui and al-
Delaema individuals were sent to civilian court at a time there 
were military commissions in existence?
    Mr. Holder. I have to look at the dates. I believe that is 
correct.
    Mr. Culberson. Okay. We are very, very short on time. Mr. 
Chairman, I wanted to also ask if I could the Attorney General 
if the charges against KSM are dismissed because of some legal 
argument that he raises under the Constitution or Supreme Court 
case law, his charges are dismissed by the federal court and he 
is ordered released, I think I heard you say that you are going 
to--the Administration will order that he continue to be held; 
is that correct?
    Mr. Holder. Yes. First off, in terms of the premise, I 
don't think there is an instance of a terrorism case where 
somebody, a terrorist charged in an Article III court, got off 
on a so-called technicality. I don't know of one case.
    Mr. Culberson. Excuse me, I am talking about KSM. You have 
ordered that he be sent to be tried in a civilian court.
    Mr. Holder. Yes, that is fine.
    Mr. Culberson. Regardless of where that takes place.
    Mr. Holder. I can certainly deal with that question, but I 
am just dealing with what you said at first, and I don't want 
to let that go unrebutted.
    Mr. Culberson. Oh, I am sorry if you misunderstood me.
    Mr. Holder. Again, what I would said is let us look at the 
facts and let us look at history. There has never been, as far 
as I know, a terrorism trial that ended in a pretrial release 
of somebody on the basis of some technicality.
    Mr. Culberson. In a military tribunal.
    Mr. Holder. In an Article III court.
    Mr. Culberson. Okay, but that is the danger we expose 
ourselves to and that is our concern, is that this hasn't been 
done before, other than those two cases you mentioned, which we 
are going to run down.
    Mr. Holder. We have tried hundreds of cases in Article III 
courts where I am sure pretrial motions have been raised, none 
have resulted in the release of somebody on a technicality.
    Mr. Culberson. Well in time of war is the concern.
    But if I could very quickly, because we are running out of 
time. If the charges against KSM are ordered dismissed by the 
District Court I have heard you say publicly that the 
Administration would order that he continue to be held; is that 
correct?
    Mr. Holder. I will answer that question, but first, on the 
basis of the way in which this case would be structured in an 
Article III court, the chances of his being released on a 
technicality are slim to non-existant. Having said that, you 
are correct. I have said that if Haley's Comet were to come 
flying through this hearing room today, and if something like 
that happened, it would not be the intention of this 
Administration to release him into the United States.
    Mr. Culberson. Well so if you get a court order ordering 
that KSM be released and the charges dismissed you will release 
him overseas?
    Mr. Holder. That is not what I have said, no.
    Mr. Culberson. Well you said you wouldn't release him in 
the United States. Where would you release him?
    Mr. Holder. Well there are a variety of things that can be 
done. Again, I think we are talking hypotheticals that we will 
never have to face.
    Mr. Culberson. But we have to think about it. And if he is 
ordered released by the court where would you release him if 
not in the United States?
    Mr. Holder. Under the system that we have in place there 
have been cases where we have made the determination, with 
regard to detainees, that certain of them can be transferred, 
certain of them can be tried and certain of them can be held on 
a long-term basis.
    Mr. Culberson. Okay.
    Mr. Holder. We have I think the facility under the AUMF, 
the Authorization of Use and Military Force, to detain somebody 
on a long-term basis. So if, and it is not going to happen.
    Mr. Culberson. It is an if. You got a court order, charges 
are dismissed, he shall be released. Where would you release 
him?
    Mr. Holder. It is an if, it is not going to happen. But if 
that were to be the case, he would not be released.
    Mr. Culberson. You said he would not be released in the 
United States and he will not released period.
    Mr. Holder. I am not qualifying it. He would not be 
released.
    Mr. Culberson. Well then if the nobility of American 
justice, the example we would set to the world so the 
terrorists would like us you just threw all that out the 
window.
    Mr. Holder. No, I am not. I am dealing with a hypothetical.
    Mr. Culberson. Mr. Chairman, am I missing something here? 
Mr. Wolf, Mr. Chairman.
    Mr. Mollohan. Yes.
    Mr. Culberson. What am I missing, please. I will yield. I 
mean, I don't get it. Texans don't understand this. I mean if 
you are at war you hunt them down, you kill them. I don't know 
why are we giving this guy constitutional rights to make the 
terrorists like us or think that we are noble and you are going 
to hold him in jail anyway if he is ordered released.
    Mr. Holder. But you are dealing----
    Mr. Culberson. Mr. Chairman, I will yield. What am I 
missing?
    Mr. Holder. What you are missing is that what I said is you 
are dealing with a hypothetical that is not going to happen. It 
is not going to happen.
    Mr. Culberson. It is a distinct possibility it could 
happen, and you said you are not going to release him.
    Mr. Holder. On the basis of what? Why would you say that?
    Mr. Culberson. Well this is a public hearing, our enemies 
are listening, you have just said that you are going to hold 
this guy in jail if the court orders him released. And the 
purpose of the trial is to show the nobility of American 
justice and we treat everybody equally and the terrorists will 
like us, you know, kumbaya. Well if the court order is saying 
release and you are going to hold him in jail you just 
nullified all that, right?
    Mr. Holder. See this is the danger----
    Mr. Culberson. And I yield, Mr. Chairman. If I am missing 
something I am missing something. This just does not make any 
sense at all. This is war. You hunt them down you kill them or 
you hold them forever. This is not complicated to a Texan.
    Mr. Holder. Okay, but this is my fault for having gone down 
the road of a hypothetical, and I should have simply said the 
hypothetical that you have posed is not a real one on the basis 
of our experience and the facts that we have over the years in 
Republican and Democratic administrations.
    Mr. Culberson. But I hope you can see my concern. You say 
that if Osama Bin Laden is captured he is entitled to the same, 
you know, he is going to be treated as a murderer like Charles 
Manson. We are going to try KSM----
    Mr. Holder. That is not quite what I said.
    Mr. Culberson. That is the gist of your testimony. Is that 
he is----
    Mr. Holder. That is not what I said.
    Mr. Culberson. As a murderer is treated as a murdered like 
Charles Manson. They are not even in the same category. And it 
is just a real concern, Mr. Chairman, and I think it exposes 
the immense danger of going down this path, Mr. Attorney 
General. We are at war, you cannot treat these people, this is 
not a war on crime, this is a war on terrorists, and you treat 
them like you would Nazis. If you captured a Nazi on the 
battlefield you should treat them no different than you would a 
terrorist captured on the battlefield. And that is the danger, 
you have opened up a can of worms and pandora's box. We need to 
stick with what works. We are at war. You hunt them down and 
you kill them or you capture them.
    Mr. Holder. I think you are right, we do stick with what 
works and we look at history, we look at facts, we don't look 
at hyperbole, we don't look at campaign slogans, we don't use 
fear. And if that is the case there is no reason for us to have 
any concern or fear that our Article III courts, our military 
efforts, the use of military commissions, or our diplomatic 
efforts will not ultimately be successful in winning this war.
    But as I said before, if you take from us, if you take from 
us----
    Mr. Culberson. Not suggesting that.
    Mr. Holder. That is in essence what you are trying to say.
    Mr. Mollohan. The gentleman's time has expired.
    Mr. Culberson. Thank you, Mr. Chairman.
    Mr. Mollohan. I will give the witness a chance to finish 
his answering.
    Mr. Holder. I was simply going to say if you take from us 
the ability that has been used by Republican and Democratic 
administrations and attorneys general to use the Article III 
courts in the successful way that we have you will weaken our 
effort in this war that we must win.
    Mr. Mollohan. Mr. Attorney General, I would only add to 
that other administrations have likewise not taken those tools 
out of their toolbox presumptively. The law works wonderfully 
when it works in the context of real cases, and chasing 
hypotheticals can be extremely difficult in the law. 
Tangibility is always helpful in answering these kinds of 
questions.
    I thank the Attorney General for his service and for his 
testimony here today. I compliment the Administration on really 
ensuring that process is re-emphasized at the Department, and 
thank you very much for doing a very difficult job extremely 
well, both in regard to the conventional crime responsibilities 
and the effort of the Department to handle these very 
complicated, difficult terrorist situations with 
professionalism while keeping in mind all of the 
responsibilities and rights that you must balance under the 
Constitution.
    Thank you for your testimony here today, Mr. Attorney 
General.
    Mr. Holder. Okay, thank you.
    Mr. Mollohan. Thank you.

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                                         Wednesday, March 17, 2010.

         FEDERAL BUREAU OF INVESTIGATION FY2011 BUDGET OVERVIEW

                                WITNESS

ROBERT MUELLER, DIRECTOR, FEDERAL BUREAU OF INVESTIGATION

                 Opening Statement of Chairman Mollohan

    Mr. Mollohan. The hearing will come to order.
    Good afternoon. The subcommittee would like to welcome 
Robert Mueller, Director of the Federal Bureau of 
Investigation, to discuss the FBI's 2011 budget request and 
related issues.
    We are pleased to have you here, Director Mueller, and 
thank you for your appearance.
    The FBI's budget request for 2011 totals nearly $8.2 
billion. Within such a large total there are clearly many 
programmatic and policy issues to cover. Too many, in fact, for 
any one hearing to cover exhaustively, but I do hope that we 
can use this opportunity to focus on at least a few important 
areas which we consider high priority.
    The first of these areas, for me, is white collar crime. 
Our economy has suffered billions of dollars in losses due to 
the illegal and immoral behavior of individuals who capitalized 
on weaknesses in the regulatory and enforcement system to 
profit at the expense of shareholders, investors, homeowners, 
workers and taxpayers. While many firms on Wall Street have 
recovered and are, in fact, making substantial profits again, 
there are millions of regular Americans who are still hurting 
and have yet to see any real justice for the economic violence 
that was perpetrated on them.
    I am glad to see that this administration has recognized 
the error of past practices and is now proposing to invest in 
your fraud enforcement programs rather than raiding those 
resources year after year to pay for other priorities, Mr. 
Director. This is the priority now. What remains to be 
determined is whether the size of this investment is sufficient 
to the size of the problem. Your budget request proposes to add 
62 new agents for white collar crime, but compared to the 
thousands of active cases and billions of dollars of losses, 
the question is, does that seem small? I am anxious to explore 
this during your testimony.
    The second area of concern is law enforcement in Indian 
country. This subcommittee has heard many times and from many 
different people how desperate the law enforcement situation 
really is in Indian Country. Unfortunately, it's not obvious 
exactly how to solve this problem. Will clarifications to the 
jurisdictional construct help? Will more agents or more 
prosecutors or better evidence processing capabilities do the 
trick? Do we need to focus on building community trust between 
the tribes and Federal law enforcement entities, or on 
significant substance abuse problems among tribal populations?
    I am sure that these are all elements of the solution, and 
the key is to find the right mix of those elements. Your budget 
contains some resources to address one part of this mix, and 
that request is certainly welcome. For too long, the FBI has 
failed to request the resources necessary to improve its 
presence in Indian Country or to follow up aggressively on the 
execution of existing funds to make sure that the resources you 
have are actually reaching the Native American communities for 
which they are intended.
    The final area that I think needs to be addressed is the 
treatment of terrorism suspects apprehended in the U.S. This 
issue emerged as a major subject of debate after the arrest of 
Umar Farouk Abdulmutallab in December when a whole spectrum of 
public figures alleged that the FBI's provision of Miranda 
rights to Abdulmutallab was unnecessary, misguided, and perhaps 
even detrimental. It is the position of the administration that 
there was no difference between the handling of this case and 
the way the FBI always handled these cases in the past, and 
there were apparently no criticisms when the FBI gave virtually 
identical treatment to David Headley and Najibullah Zazi, to 
name recent examples, or to dozens of others apprehended during 
the previous administration.
    I would like to think that much of the current criticisms 
and misrepresentations are just the result of some 
misunderstandings about what has taken place in this case. The 
fact of the matter is that the FBI has made it clear that it 
sent experienced knowledgeable agents to question 
Abdulmutallab. Beyond this one particular case, I believe there 
are also some fundamental misunderstandings of the overreaching 
legal framework in which you operate when someone is 
apprehended within our borders for committing or attempting to 
commit a terrorist act. Can that person legally be held without 
charge or without the provision of certain constitutional 
rights? Whether he is a U.S. citizen or not, once in custody, 
what are the provisions with regard to his advice on his right 
to remain silent, his right to retain counsel, and the 
government's right to use statements against him?
    These are all questions which I am sure will be explored. 
The FBI simply cannot take a suspect apprehended domestically 
and just pack him off to Guantanamo Bay. You can't turn him 
over to CIA, which does not have authority to operate 
domestically, and you can't decide to give him to the military 
where, by the way, he would still be entitled to constitutional 
rights. I understand that there are differences of opinion, and 
we look forward to exploring them in the context of the 
Constitution and the reality in which we find ourselves. I 
intend to pursue these topics in more detail during our rounds 
of questioning, and I also hope to address some newly emerging 
problems with the development of the Sentinel case management 
system. This is a critical effort and one that absolutely must 
succeed in order for the FBI to fully bring its investigative 
technology into the new century.
    Before we get into these issues, however, I would like to 
recognize our ranking member, Mr. Wolf, for any comment he may 
have.
    Mr. Wolf. Thank you, Mr. Chairman.

                     Opening Statement of Mr. Wolf

    Director Mueller, I join the chairman in welcoming you this 
morning to testify before the committee. I am pleased that we 
are holding the hearing. For 2011, you are seeking an 
appropriation of $8.3 billion, an increase of $366 million or 
4.6%. We look forward to your testimony on the new increases 
you are seeking as well as on the FBI's continuing with 
transformation activities to fulfill its role as the key 
domestic counterterrorism and intelligence agency. In addition, 
I am interested to hear more about the FBI-led effort to 
establish a new interagency capability for the interrogation of 
high-value terrorist suspects pursuant to the recommendations 
of the interrogation task force set up last year by executive, 
and yesterday I asked the Attorney General and I sent a letter 
down to the administration asking that the HIG be relocated at 
the counterterrorism center.
    The whole purpose of establishing a counterterrorism center 
was to bring people of different backgrounds, different 
agencies together, and rather than having it in a separate 
building away from there; so I would like to get your comments 
with regard to this. This function is critical to the 
intelligence gathering, and as the Christmas Day bombing 
revealed, there is an unacceptable level of confusion about how 
such interrogation should be handled.
    Lastly, I would like you to pass on to your people our 
appreciation for their hard work, the work of your agents, your 
analysts and support staff to protect the Nation from terrorism 
and crime is perhaps the most important activity that we 
support in this subcommittee. I recognize the tireless efforts 
that are required to carry out those responsibilities, and your 
people should be commended, and quite frankly, speaking for 
myself, I think you should be commended. I think you have 
provide a great service to the country.
    Your wife and I would probably differ but I am not looking 
forward to the day that you leave because I think you really 
have in this difficult time done an outstanding--I would say 
your people have done a good job, but I think you have too, and 
I want to go on the record with that.
    I yield back to the chairman.
    Mr. Mollohan. Mr. Mueller, as you may know, your written 
statement will be made a part of the record and the committee 
invites you to proceed with your oral testimony. Thank you.

                    Oral Remarks of Director Mueller

    Mr. Mueller. Thank you. Chairman, members of the 
subcommittee, Congressman Wolf, thank you for your comments. 
You probably do differ with my wife who is looking forward to 
that time. I appreciate the opportunity to appear here today 
before this committee to discuss the budget for 2011. The FBI 
is requesting approximately $8.3 billion to fund more than 
33,000 FBI agents and staff and to build and maintain our 
infrastructure. This funding is critical to continue our 
progress in transforming the FBI into an intelligence-driven, 
threat-based agency and to carry out our mission of protecting 
the Nation from ever-changing national security and criminal 
threats.
    Let me start by discussing a few of the most significant 
threats. Fighting terrorism remains our highest priority at the 
FBI. Over the past year, the threat of terrorist attacks has 
proven to be both persistent and global. Al Qaeda and its 
affiliates are still committed to striking us in the United 
States. We saw this with the plot by an al Qaeda operative to 
detonate explosives in New York subways and the attempted 
airline bombing plot on Christmas Day to which, Mr. Chairman, 
you have alluded. Both incidents involved improvised explosive 
devices, or IEDs, and underscore the importance of our 
continuing to develop explosives intelligence to support and 
guide terrorism-related investigations.
    Homegrown and lone wolf extremists pose an equally serious 
threat. We saw this with the Fort Hood shootings and with the 
attempted bombings of an office tower in Dallas and a Federal 
building in Springfield, Illinois. We have also seen U.S.-born 
extremists plotting to commit terrorist acts overseas, as was 
the case with the heavily armed Boyd conspiracy in North 
Carolina, and David Headley's involvement in the Mumbai attacks 
from his home base in Chicago, Illinois.
    These terrorist threats are diverse, far reaching and ever-
changing. Combating these threats requires the FBI to continue 
improving our intelligence and our investigative programs and 
to continue engaging with our intelligence and law enforcement 
partners both domestically and overseas. Accordingly, for 
fiscal year 2011, we are requesting funds for 90 new national 
security positions and $25 million to enhance our national 
security efforts.
    Next let me spend a moment discussing the cyber threat. 
Cyber attacks come from a wide range of individuals and groups, 
many with different skills, motives, and targets. Terrorists 
increasingly use the Internet to communicate, to recruit, to 
plan and to raise money. Foreign nations continue to launch 
attacks on U.S. Government computers and on private industry 
hoping to steal our most sensitive secrets or benefit from 
economic espionage. Criminal hackers pose a dangerous threat as 
well as use the anonymity of the Internet to steal identities 
and money, across the country and around the world. These 
attacks undermine our national security and pose a growing 
threat to our economy. We are seeking 163 new positions and $46 
million for our cyber programs to strengthen our ability to 
defend against cyber attacks.
    Let me turn for a moment to white collar crime. Mortgage 
fraud is the most significant threat in our efforts to combat 
white collar crime. Mortgage fraud investigations have grown 
five-fold since 2003, and more than two-thirds of these cases 
involve losses of more than $1 million each. If trends 
continue, we will receive more than 75,000 leads regarding 
mortgage fraud in this year alone. Securities fraud is also on 
the rise. We have 33 percent more security fraud cases open 
today than we had 5 years ago, and the economic downturn has 
exposed a series of historically large Ponzi schemes and other 
investment frauds. And of course, health care fraud remains a 
priority for the FBI given the estimates on the billions lost 
to fraud each year in health care programs.
    Investigating and bringing to justice those who commit 
fraud is critical to restoring public confidence in our 
Nation's mortgage, financial securities, and health care 
industries. We are requesting funds for 367 new positions and 
$75 million for our white collar crime program.
    The fiscal year 2011 budget also requests new funding for 
the threats from crimes in Indian country and international 
organized crime, and we are also seeking additional funds for 
our infrastructure to address these national security threats 
and crime problems including funding for training facilities, 
information technology, forensic services, and as you point 
out, Mr. Chairman, my written statement I submitted for the 
record discusses these requests in far greater detail.
    I will say that over the past several years, we have worked 
to better integrate our strategic direction with a 5-year 
budget approach and with a more focused human resources 
management. Indeed, the FBI's fiscal management has been 
recognized by the Inspector General's annual audit as being 
among the top performers in the Department of Justice and we 
are on pace to achieve our hiring and staffing goals this year.
    Chairman Mollohan, Ranking Member Wolf, I would like to 
conclude by thanking both of you and the other members of the 
committee for your support and particularly in your support of 
the men and women of the FBI, and I am happy to answer any 
questions you might have.
    [The information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Mollohan. Thank you, Director Mueller.

            INTERROGATION OF TERRORISM SUSPECTS IN THE U.S.

    I would like to begin by revisiting the Abdulmutallab case 
and attempting to clarify some issues that have been subject to 
a lot of controversy in the press and in the public and on the 
Hill. Some of those controversies stem from confusion or a 
misunderstanding, perhaps, about how you proceeded on the day 
that Abdulmutallab was arrested and whether the Intelligence 
Community was consulted about the handling of the case.
    So Mr. Director, can you walk us through the basics of what 
occurred on Christmas Day and how you interacted with the 
Intelligence Community, almost a chronology?
    Mr. Mueller. Yes. Starting around noon, word was received, 
and again, I am not specific on the particular time; so please 
don't hold me to those, but approximately noon or a little 
afterwards we received word that an individual on a plane bound 
to Detroit, I believe from Amsterdam, had apparently attempted 
to set off something. Initial reports indicated it may have 
been firecrackers. When the plane landed, first on the scene 
were those at the airport, principally Customs and Border 
Patrol and ICE agents. We were shortly there ourselves and 
learned that an individual had attempted to trigger an 
explosive device on the plane and had been stopped by one or 
more passengers.
    He was placed into the custody of--I believe it was Customs 
and Border Patrol, and because the device, as he attempted to 
ignite it, had burned him, he was taken in custody to the 
hospital. As we found out about that, we immediately attempted 
and did find out information about him, understood that he was 
of Nigerian background and had flown in from Amsterdam. 
Immediately e-mail traffic began from both Detroit to our 
National Joint Terrorism Task Force here in Washington, and out 
to various agencies, including the Department of Homeland 
Security, National Counter Terrorism Center, and the 
Intelligence Community about what little information we had. 
That correspondence carried through the afternoon.
    At approximately 2 o'clock, our agents went to the hospital 
and interviewed Abdulmutallab with the specific objective of 
finding out whether there was any immediate threat of 
additional bombs on other planes or additional persons on that 
plane who might constitute a threat. They spent up to an hour 
interviewing Abdulmutallab.
    As has been pointed out, the determination was made not to 
provide Miranda warnings on the belief that this was 
information that was absolutely essential to determine public 
safety and so that interview was conducted along those lines. 
We continued to obtain information from various entities in the 
Intelligence Community throughout the afternoon, and at 5 
o'clock that evening, there was a video teleconference that was 
established by John Brennan at the National Security Council.
    We attended that video teleconference where most of the 
members of the Intelligence Community representatives of the 
Department of Justice, NCTC, National Security Council, and of 
course, representatives of the FBI, reviewed what had happened 
and what was going to happen thereafter. There was the ongoing 
assumption at that time that Abdulmutallab, having been 
arrested on United States soil, would proceed through the 
Article III process. There was no debate at that time whether 
there was the issue of whether or not to Mirandize him.
    Later that night it was determined to try again to 
interview Abdulmutallab, and at that time, it was determined 
both by the Department of Justice and the FBI that we would 
follow our ordinary procedures and attempt to interview him and 
provide him his Miranda warnings. When the agents went in that 
evening, he was less responsive to interviewing. He was not 
providing basic booking information. He was read his Miranda 
rights and discontinued any conversation afterwards. He 
remained in custody in the hospital that night and was brought 
before the magistrate the following day, as is required under 
rule 5 of the Federal Rules of Criminal Procedure, later on the 
following day. That, in brief overview, is what happened that 
day, consistent with the practices that we have utilized 
generally throughout any arrests that we do in the United 
States.
    Mr. Mollohan. Was there communication with the Intelligence 
Community about how this case was being handled? Was there 
cooperation among the various law enforcement agencies and 
intelligence agencies during this process?
    Mr. Mueller. Well, there was continuous coordination in 
obtaining information to the extent that we could pull it from 
our various archives the afternoon of Christmas, and the 
communication was between persons not at the highest level. In 
other words, I would not have been necessarily involved in that 
communication nor Secretary Napolitano nor the Attorney 
General. But yes, in the discussions throughout that afternoon, 
there was a colloquy between various elements of the 
Intelligence Community and the law enforcement community as the 
events unfolded.
    Mr. Mollohan. Were his arrest and the process that you just 
described handled any differently than the process followed for 
any other terrorist suspect arrested in the United States 
either before or after 9/11?
    Mr. Mueller. The only distinction I would say is that we 
made the determination early on not to Mirandize him in the 
initial interview. We knew we had a relatively short window of 
time in order to conduct that interview and believed that in 
that window of time we had to focus on immediate information 
relating to public security.
    Mr. Mollohan. You indicated that the next day the suspect 
was taken before a magistrate?
    Mr. Mueller. Yes. We are required under the rules to 
present the individual in custody before the magistrate. 
Generally we are required to do it within a 24-hour period.
    Mr. Mollohan. Is there a Mirandizing requirement at that 
time?
    Mr. Mueller. That happens whenever you are presented to the 
magistrate. The magistrate will review your rights for you. And 
it was done on that occasion. At least that is my 
understanding.
    Mr. Mollohan. So the court itself would advise the 
defendant of Miranda rights at that time?
    Mr. Mueller. Yes.
    Mr. Mollohan. So really there is a requirement that, except 
for the public safety aspect of this, a suspect arrested in the 
United States would be subject to Mirandizing under the law?
    Mr. Mueller. Yes. Once that person has been presented to 
the magistrate for any initial appearance.
    Mr. Mollohan. There has been considerable discussion about 
Miranda warnings and how they may or may not impact suspects 
from cooperating with investigators. I would like to just 
explore that a bit with you. Given that a suspect is going to 
be advised of his rights by a court within hours after his or 
her arrest, the FBI, is it correct, generally provides Miranda 
warnings itself so that you can take full advantage of anything 
he might say in the intervening period and preserve it for an 
Article III court? Many people have contended that the moment a 
suspect is provided Miranda warnings he will immediately cease 
cooperating with you.
    So I am asking in your experience, is it the case that 
suspects become uncooperative and invoke their right to remain 
silent after being read Miranda rights, and does that attitude 
persist?
    Mr. Mueller. Let me divide it up in two parts if I could. 
The first part with regard to our policy, we make hundreds of 
arrests a day across the country. State and local law 
enforcement make thousands of arrests across the country daily. 
It is generally the protocol for ourselves as well as State and 
local law enforcement to provide Miranda warnings before 
interrogating somebody who is in custody to maximize the 
opportunity for utilizing whatever is said by that individual 
in the case against him in court.
    Turning to the second part of that in terms of what one can 
anticipate, it really depends on the case. I think prosecutors 
and agents and police officers would say that on many 
occasions, persons who are Mirandized agree to cooperate 
afterwards and reach some sort of understanding whereby they 
would have to truthfully cooperate in order to get some 
consideration in terms of sentence. There are others who will 
never cooperate.
    Richard Reid is an example of an individual, the shoe 
bomber, whose arrest was I think in 2002, who has never 
cooperated to this day even given Miranda warnings, and there 
probably are others out there who might have cooperated had 
they not been given Miranda warnings. So it really depends on 
the circumstances of the case.
    Mr. Mollohan. There has been a lot of discussion of whether 
Abdulmutallab was willing to talk to you and whether the 
provision of Miranda warnings prevented you from achieving some 
form of cooperation from him. When agents spoke to him 
following his medical procedure, was he uncooperative?
    Mr. Mueller. My understanding is that he did not display 
the same willingness to respond to questions that he had 
displayed earlier in the day when we first interviewed him.
    Mr. Mollohan. What about now? Did he cooperate with you 
some time post-hospitalization or post-operation, after having 
been advised of his right to remain silent and the right to 
retain counsel? Is he cooperating with you now?
    Mr. Mueller. He has been providing information, yes, sir.
    Mr. Mollohan. He has been?
    Mr. Mueller. He has been, yes.
    Mr. Mollohan. I don't know that you can answer this, but 
what causes his cooperation now?
    Mr. Mueller. It may well have been a combination of 
factors, and I can generally say that I think his family had 
some role in that. The fact that he faced substantial--life 
imprisonment probably played some role in that. There may be a 
number of other factors.
    Mr. Mollohan. Well, there is no clear lawful authority to 
move a defendant out of the civilian system; is that correct?
    Mr. Mueller. I think that, when you say no clear authority, 
I do believe that this issue has been litigated and come up 
with different results in different circuits. So to the extent 
the question is, is there any certain authority on that, I 
don't believe there is.
    Mr. Mollohan. Well, we have heard in the media and 
elsewhere that the military should have taken custody of 
Abdulmutallab. That is a contention that is out there, with the 
implication being that the government would have gotten more 
out of him if the military had been allowed to handle his case. 
Since 
9/11, has the FBI ever arrested a suspected terrorist inside 
the United States and immediately turned the person over to the 
military?
    Mr. Mueller. No, we have not.
    Mr. Mollohan. And for both the past administration and this 
administration, that's a true statement?
    Mr. Mueller. We have not done that. Let me just put it this 
way: assuming the President has the authority to direct that, 
we have not been directed to do that ourselves.
    Mr. Mollohan. Have you ever turned such a person over to 
the military later in the process, such as after their first 
appearance in court?
    Mr. Mueller. The FBI has not. There have been other 
occasions where the Marshals Service, upon the direction of the 
President, has, I believe, turned at least two individuals over 
to the military.
    Mr. Mollohan. Do you know who those two individuals were?
    Mr. Mueller. I think one is named Padilla and the other was 
al-Mari, both of whom were directed into military custody for a 
period of time, and then were returned to the Article III 
courts for disposition of their cases.
    Mr. Mollohan. And who had custody of those individuals?
    Mr. Mueller. At the outset, we probably did the arrests on 
both of them. I think we did the arrests on both of them. They 
went into the Article III court system, into the custody of the 
U.S. Marshals Service as their cases were going to the courts. 
They were then transferred to the military for a period of time 
and then transferred back into the custody of the Marshals 
Service for disposition of their cases.
    Mr. Mollohan. Just backing up a little bit, you didn't make 
that decision?
    Mr. Mueller. No, we did not. That is the President's 
decision.
    Mr. Mollohan. In those two cases did the President make 
that decision?
    Mr. Mueller. I believe that is the case.
    Mr. Mollohan. President Bush made the decision to transfer 
those two individuals over to the military----
    Mr. Mueller. I believe that to be----
    Mr. Mollohan [continuing]. For disposition. Are those 
defendants still in military custody?
    Mr. Mueller. Mr. Padilla went to trial before an Article 
III court, I believe in Florida, was convicted, and is serving 
his sentence in the U.S. prison system.
    Mr. Mollohan. So that implies to me that they came back 
from military custody into the civilian forum?
    Mr. Mueller. Yes, sir. In both of those cases, they came 
back into civilian----
    Mr. Mollohan. How did that happen?
    Mr. Mueller. I believe it was directed by the President 
that they be returned to the custody of the Attorney General. 
That was exercised through the Marshal Service. As for al-Mari, 
I believe he was sentenced. He may well still be in jail or may 
have been released. I would have to check on that.
    Mr. Mollohan. But was there not an intervening challenge by 
the defendants to their detention in the military system? The 
judiciary issued contradictory decisions about whether the 
transfers were legal and both the civilians moved back into 
civilian custody. My question is, did the courts direct that 
they be sent back, or did the Bush administration send them 
back before a court's determination was made whether they were 
illegally detained in the military system?
    Mr. Mueller. I have not reviewed their cases recently, but 
I do believe one circuit ruled against the transfer of the 
individual into the military system whereas the other circuit 
upheld the transfer. Neither of the cases reached the Supreme 
Court and both were resolved in Article III courts before it 
could go to the Supreme Court.
    Mr. Mollohan. So I guess faced with conflicting decisions 
in different circuits, the administration pulled them out of 
military custody and put them back over into the civilian 
forum?
    Mr. Mueller. I was not involved in the decision-making 
process, but I can say that they did come back into that----
    Mr. Mollohan. Both of them, although one circuit determined 
that a transfer to military custody was lawful; so there was a 
contradictory----
    Mr. Mueller. Yes. Excuse me a second.
    That is right, sir. I just wanted to check up and make 
certain I was on solid ground.
    Mr. Mollohan. So there is no clear legal authority to 
transfer terrorism suspects arrested inside the United States 
to the military?
    Mr. Mueller. You would have to go to constitutional 
scholars other than myself to----
    Mr. Mollohan. Based on court decisions, we have a conflict 
in the court decisions.
    Mr. Mueller. I think there is a conflict. Again, the cases 
may have been somewhat different. All I can say is that I am 
probably not the person to opine on to what extent it still 
remains unsettled.
    Mr. Mollohan. I probably should know, but do you know 
whether those cases went to the district court or circuit 
court?
    Mr. Mueller. Both went to circuit courts.
    Mr. Mollohan. So we have a difference of opinion in two 
different circuits.
    Being in the civilian system does not mean an interrogation 
won't be useful; that is the point of this next line of 
questioning I have. So we have established for this purpose 
that there really aren't any constitutional alternatives that 
the FBI's handling these cases directly. Let's turn then to the 
contention that your interrogation of Abdulmutallab wasn't 
necessarily effective. That is an accusation. Some critics have 
charged that you could have achieved a more effective 
interrogation if there were better interrogators available. As 
I say that, I have not seen a shred of evidence to substantiate 
that from my position. But just to explore this contention, do 
you believe that you had the right mix of agents on the ground 
for the initial interviews of Abdulmutallab?
    Mr. Mueller. Well, I think if you put this into context, in 
the middle of Christmas Day there is this attempt by an 
individual to blow up a jet as it was coming into Detroit. 
Nobody could quite obviously have anticipated that and it could 
have gone into any city in the United States. I believe that 
the Special Agent in Charge there and the agents on the ground 
did an admirable job in identifying persons available to 
conduct the initial interview. They chose an agent who had 
substantial terrorism experience who had served overseas--I am 
not certain if it was Iraq or Afghanistan, and was fairly 
familiar with terrorism issues and----
    Mr. Mollohan. Both domestically and internationally, then?
    Mr. Mueller. Yes. And also an individual who--he may not 
have been a certified bomb technician, but was expert when it 
comes to explosives because of the necessity of identifying 
what kind of explosive was on the plane and what we were 
dealing with. So I believe they did an admirable job in pulling 
together the right persons to conduct the interviews on the 
day. Now, down the road----
    Mr. Mollohan. Excuse me----
    Mr. Mueller. I am sorry.
    Mr. Mollohan. No. You keep that thought. But before we get 
down the road, these individuals who conducted these 
interrogations, am I accurate in saying that they were members 
of the FBI's Detroit Joint Terrorism Task Force?
    Mr. Mueller. I would have to check on that. It may well 
have been. At least one was, but I am not certain. It may have 
been--the bomb technician or another may not have been a member 
of the Joint Terrorism Task Force but had the type of expertise 
that they believed was necessary immediately.
    Mr. Mollohan. You may want to clarify that for the record.
    Mr. Mueller. We will get back to you on that.
    [The information follows:]

 If Any of the Agents Who Did the Initial Abdulmutallab Interview Were 
                         Part of the Local JTTP

    Yes. Both FBI Agents who were involved in the initial interview of 
Mr. Abdulmutallab were members of the Detroit Joint Terrorism Task 
Force.

    Mr. Mollohan. Excuse me. Down the road?
    Mr. Mueller. Well, I think one of the benefits of the HIG 
program, the High-Value Interrogation Group program, is that 
you want to pull together persons with a variety of 
capabilities. You want a strong interrogator. You want a strong 
subject matter expert. You want a person who is knowledgeable 
of the individual. You may need language experts. And we, 
thereafter as the process went on, increased our numbers of 
persons with various degrees of expertise that could contribute 
to that interrogation, but we were dealing with on that day a 
necessity to respond and within very few moments, to get the 
information we thought was essential. And so I do believe that, 
yes, we could have brought in and had afterwards brought in 
greater number of subject matter experts, but they were not 
readily available on the ground at that time.
    Mr. Mollohan. The administration recently established the 
High-Value Interrogation Group, the HIG, to interrogate 
individuals of significant interest to the government overseas; 
that is my understanding. Why wasn't the HIG deployed to 
interrogate Mr. Abdulmutallab instead of your Detroit Joint 
Terrorism Task Force agents, and do you believe your 
interrogation was effective without HIG involvement?
    Mr. Mueller. Well, by Christmas the HIG had not been 
formally set up, but that did not mean that we did not use the 
same concept prior to that time. We recognized for a period of 
time and certainly our agents who are far more expert than I, 
understand the advisability of having any number of areas of 
expertise to contribute to the success of a particular 
interrogation. We had used that concept previously last fall in 
Chicago with an individual by the name of David Headley, where 
we pulled various experts to contribute to that interrogation.
    On that particular day, we would have been anticipating 
down the road what we would need to flow into Detroit to 
complement the individuals who were doing the initial 
interrogation, and indeed that is what happened.
    Mr. Mollohan. Well, my understanding, and I think your 
testimony substantiates it, is the proposition that 
Abdulmutallab was interviewed by anybody but absolutely expert 
experienced interrogators, members of the Detroit Joint 
Terrorism Task Force, would be unfounded. And the HIG, as I 
understand it, might be available for consultation on domestic 
cases. Let me ask you if they would, but primarily they are a 
deployment group for overseas interrogation; is that correct?
    Mr. Mueller. That is correct, but that does not preclude 
them from being used in the United States and that expertise 
has been and will be used in the United States.
    One point I do want to make because I have heard some 
criticism of the fact that he was interrogated by FBI who were 
in Detroit. The fact of the matter is our agents are very 
experienced. As they go through new agents class, one of the 
key areas that is covered is interrogations and many of our 
agents that come in have spent a great deal of time as police 
officers and that is what you do day in and day out.
    I might also add that we have had some successes, some of 
them fairly renowned. An individual by the name of George Piro 
was selected by the military to do the interrogation--long 
interrogation--of Saddam Hussein. So I do believe we have the 
expertise. I do believe we had the expertise on the ground that 
day to do a very good job and that the HIG would only augment 
what we have been doing for a number of years.
    Mr. Mollohan. At the risk of asking a leading question, I 
don't suppose you get on the Detroit Joint Terrorism Task Force 
without being seriously experienced.
    Mr. Mueller. Generally that is the case. We certainly have 
a lot of experience on that task force.
    Mr. Mollohan. Mr. Wolf.
    Mr. Wolf. Thank you, Mr. Chairman.
    My views are as follows: I really want to find out what 
have we learned. What have we learned to protect the American 
citizens so that next time something happens we are safer? 
There has been a lot of effort by the administration trying to 
defend themselves, and I want to make sure that I don't get 
into any political questions with you, and then there have been 
those on the other side who wanted to perhaps exploit that. 
Judge Mukasey did a piece where he said Abdulmuttalab should 
have been held as an enemy combatant. I don't know if you read 
this. It was in The Wall Street Journal.
    Mr. Mueller. I generally read his pieces, yes, whether Wall 
Street Journal or----
    Mr. Wolf. And I will submit that for the record. Judge 
Mukasey, if I recall, was the judge in the '93 World Trade 
Center; is that correct.
    [The information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Mueller. That is true, yes, sir.
    Mr. Wolf. It's true. And I think he has forgotten more 
about this than most people will ever, ever know. And the point 
was, and the whole purpose of the high-value detainee 
interrogation group is to deal with high-value detainees, not 
criminal detainees, but the high-value detainees as an 
intelligence point of view; is that correct?
    Mr. Mueller. Yes.
    Mr. Wolf. And so we are not really saying that the guy who 
drew the short straw in Detroit on Christmas Day was a bad 
person. He may have been a wonderful person. I stipulate for 
the record they are wonderful people, but maybe there were some 
others that could have also added some value to that that were 
not there. And one of the recommendations that I made, and you 
might want to comment on it, is I have asked that the HIG be 
colocated at the National Counterterrorism Center for that 
very, very purpose because they were not involved--and based on 
what you said, they were not involved before the decision was 
made with regard to Miranda rights. And so therefore--and when 
Secretary Napolitano testified, she said she did not know.
    I believe that Admiral Blair testified over on the Senate 
side. I can still see the hearing. I think the question was 
asked by maybe Senator McCain. I am not sure. I think Senator 
McCain. And he said he did not know. And I think Mike Leiter 
said he did not know. And I think Leiter does a great job. I am 
very impressed. I think the more people go out to the 
Counterterrorism Center and see the number of pieces of 
information that come in every day and how they have to boil it 
down--and so I think those of us or I--I am not speaking for 
the other side--felt that perhaps if he could have been 
considered an enemy combatant, as Judge Mukasey said, and had 
more opportunity, there may have been a chance to say to them, 
did you see this gentleman when you were in Yemen?
    Did you ever talk to Awlaki? What building were you in? Did 
you ever see any of these pictures, people that have been sent 
back? Are there any American citizens that were in the class 
with you? There are a lot of things that could have been asked. 
And so I think the question is what did we learn? You can spend 
a lot of time going back either criticizing what took place on 
Christmas Day or you could go back and defend what took place. 
Now, the administration announced that the high-value 
interrogation--they announced it in August; correct?
    Mr. Mueller. I am not certain when they first announced it. 
It may have well been last summer, yes.
    Mr. Wolf. In August. And this is one of the most 
significant issues that our Nation is facing because there are 
young men and women that are serving in Afghanistan and Iraq 
and serving us well and some of your people have really done a 
great job. So let's find out what we have learned from it 
rather than defending or tearing it down. And I would stipulate 
that as great as they may very well be, they were not the best 
people we had in the Nation at that time to have interrogated 
the Christmas Day bomber because they were on vacation. They 
were having--celebrating the birth of Jesus Christ on Christmas 
Day. They may have been at church service. They may have been 
somewhere else. And that is not bad. It is okay for people to 
take off.
    And so the point that I have tried to make at that time--
because this is such an important issue because of the number 
of people who have died in this country, the number of people 
who died at Fort Hood who were impacted by Awlaki; correct? Did 
he have any impact on the major down in Fort Hood? Yes. Did he 
have any impact on the Army recruiter that was killed? Yes. Did 
he have any impact on John Walker Lindh, who may have been 
responsible for killing or involved in the killing of Michael 
Spawn, the first CIA people from my district? The answer is 
probably yes. And you could go on and on and on.
    So I think it is what did we learn--without being defensive 
or without being protective, what did we learn to truly make 
sure that the next time, and unfortunately there may very well 
be a next time, to make sure that we do everything we possibly 
can? Now, I have talked to your people and they tell us, and I 
think you sort of acknowledged it, that the HIG will be used 
domestically. It won't only be for international. But that is 
accurate, it may very well be used for domestic----
    Mr. Mueller. Yes.
    Mr. Wolf. So I think that is where I go. And I read the 
interview and I read the stories of the fellow Piro. He's a 
great guy, but how long did Piro have with Saddam?
    Mr. Mueller. Months.
    Mr. Wolf. Months.
    Mr. Mueller. Months.
    Mr. Wolf. Months. But he understood the culture. He 
understood--I can still remember the time that former 
Congressman and Secretary Richardson met with Saddam Hussein, 
when he put his sole up and Saddam got up and walked out. 
Culturally that was not appropriate. So to have someone who 
understood the culture and the language--and the point is they 
were probably very good people, but there are probably people 
that are better in the country and in order to make sure that 
America is safe and secure, I think we should do everything we 
possibly can.
    Let me ask you some questions----
    Mr. Mueller. Can I respond if I could to a couple of 
aspects of that?
    Mr. Wolf. Sure.
    Mr. Mueller. First of all, with regard to military 
commissions and the support of military commissions for the 
trials that Judge Mukasey argued for, I believe the President 
has the authority and the right to determine where a person is 
to be tried, whichever. And I also believe that the most 
important thing we need to get is intelligence to prevent 
additional attacks and we want the best possible people doing 
interrogation, as soon as possible.
    The one thing I do think is lost in some of this dialogue 
is that one has to make decisions relatively quickly in order 
to maximize the opportunity to get that information and 
intelligence, and oftentimes where the opportunity is greatest 
is after the arrest. And most police officers, I think, will 
tell you that that is the time where you have the greatest 
opportunity to obtain the information you need.
    I would have liked to have gotten out to Detroit. The plane 
came in around 12 o'clock. Abdulmutallab is at the hospital at 
2 o'clock and we have got a very small window of opportunity to 
interrogate him before he goes under surgical procedures. I 
could not get an expert on Nigerian radicalism at that point. I 
could not get somebody from Quantico who does this for a living 
at that point. And the individuals were selected for their 
capabilities to do those interviews.
    And what is lost in the dialogue is that we were relying on 
the people in the field who were doing this and reacting to a 
number of stimuli that come through either what is happening at 
the scene, what is happening dramatically, what is happening 
right after the scene, or the willingness for the person to 
talk at that particular time. And I think what our people did, 
and cannot be lost in the future, is to keep the opportunities 
open as long as you can but take advantage of those 
opportunities when they are presented to us.
    Mr. Wolf. Sure, I agree with that. And I think it's 
important not to browbeat and go after--my dad was a 
Philadelphia policeman--not to go after the people who were on 
the scene. That is not the point. The point is what do we learn 
by that? And I think the article--and I wish I still had it. We 
will submit it for the record. I think what Judge Mukasey was 
asking for was not that he be tried in a military tribunal. I 
think he felt, and I could be corrected here because it has 
been a long while since I have read it, that he be held as an 
enemy combatant for a long time that would have given an 
opportunity for your very best people to have interviewed him 
and then after that he could have gone to an Article III.
    So I think it's an issue of timeliness and length of time. 
And, listen, I have great respect. I mean the policemen or the 
person at that moment, you get these silk stocking lawyers from 
the big firms that come in and make a value judgment. That man 
or woman on the street at that time has to make a very tough 
call--and I respect that.
    What do you think about the idea--and I have sent a letter 
down to the administration. I did not send it to you because on 
some of these I don't send it to the Bureau because it is a 
political judgment to a certain extent, but what I did was--and 
I talked to John Brennan and I sent a letter to the President's 
Foreign Intelligence Advisory Board, to the Secretary, to 
former Senator Boren and also Senator Hagel, both good people, 
asking them to look into the possibility of co-locating, the 
HIG at the Counterterrorism Center so that they are there at 
that very moment when something is coming in and also when you 
are out there at the center, the breaking down of the barriers 
because they are in the same cafeteria together. They kind of 
know each other and relationships develop. What are your 
thoughts about locating it there?
    Mr. Mueller. Well, I think you are aware from past 
discussions that I am a firm supporter of the National 
Counterterrorism Center. Early on we were one of the first 
occupants. I moved our Counterterrorism Division from FBI 
headquarters out there so that we co-located with NCTC and 
other elements of the Intelligence Community. I would have 
liked to have had the HIG located there. We talked about 
getting space there. And my understanding from the response of 
those discussions is that they are stuffed to the gills and we 
could not get the space there for what we wanted to do.
    I can tell you we are operating out there, putting together 
our HIG. Our people are out there today. But we needed 
additional space that they could not accommodate. Ideally it 
would have been nice but now the space that we do have, which I 
think you are familiar with, also gives us space that we can 
move in relatively quickly and also is well on its way to being 
SCIF'ed, and so that was a consideration. I agree with you. 
Ideally I would like to have them there but they did not have 
the space.
    Mr. Wolf. Okay. They tell me they actually won't get into 
their current place until August 1.
    Mr. Mueller. I would love to have another building----
    Mr. Wolf. Well, I am going to continue to push this because 
I think it is a bigger issue, and let me say, I am also going 
on record--having complimented you and your people, I also want 
to compliment Michael Leiter and the group at the 
Counterterrorism Center. If everyone who writes a critical 
article or makes a comment could go out there and spend a day 
and look at the number of things that come in every day and 
then to boil that down, I felt that there was maybe a political 
decision made that was wrong, but the fault was really not out 
there. And if you begin to browbeat the people out there, you 
begin to get them so skittish that they are going to make a 
mistake sometimes. So anyway I am going to continue to push to 
see if we could have it relocated there.
    The administration has been unwilling to share with the 
Congress any details about the Nation's new interrogation 
policy, and based on the Christmas Day bomber case it looks 
like there is some confusion out there as to what is the 
policy, and so--not generally like a newspaper story but what 
is the real policy? So has a charter or an MOU been written for 
the establishment of the HIG, and if so, could the committee 
see it?
    Mr. Mueller. Yes. I think it is being modified to address 
the issue of--use of the HIG within the United States and I do 
believe there is every intent to provide it to Congress as it 
is finished.
    Mr. Wolf. Okay. So the modification is so that the HIG will 
be used potentially here in the----
    Mr. Mueller. Could be, yes. Not----
    Mr. Wolf. Well, when----
    Mr. Mueller [continuing]. But allows it to be used, yes.
    Mr. Wolf. Allowed, sure. Well, when it is available if you 
could just submit it for the record----
    Mr. Mueller. I believe there is an intent to provide it to 
you.
    Mr. Wolf. If the deployment is domestic, as the decision 
has been made, does HIG still adhere to the rule of 
intelligence gathering taking priority over the law 
enforcement.
    Mr. Mueller. Generally, yes. I would say yes. I think every 
circumstance is a little bit different, but one of the things 
that the HIG has to do is put together an interrogation plan 
that has the input not just from the bureau and others in the 
law enforcement community but also input from the Intelligence 
Community. So the plan would address that particular issue with 
input from the various communities.
    Mr. Wolf. Okay. The last question is a budget issue too. 
What are the FBI's funding requirements associated with the HIG 
and how much are you allocating in fiscal year 2010 and how 
much are you requesting in fiscal year 2011 and what does the 
FBI estimate a full year recurrent cost of the HIG once it is 
fully set up.
    Mr. Mueller. We were--we were late in attempting to obtain 
the funding in the 2011. It will be in the 2012. As to the 
particular figures, I would have to get back to you on that. I 
will tell you that the FBI is footing the bill for the space. 
We hope to get contributions from the others. And the personnel 
will be contributions from the--contributing from various 
associated agencies.
    [The information follows:]

                           Big Budget Numbers

    The FBI is bearing the initial administrative costs for the HIG in 
FY 2010; however, participating agencies are bearing the cost of the 
salaries and related expenses (travel, transportation, etc.) for their 
agencies' personnel. The initial costs of facility build-out and 
personnel cost of the HIG Director is approximately $6 million.
    There was no specific request for HIG funding in the President's FY 
2011 Budget. By the time the Interrogation Task Force concluded, and 
recommendations were sent to the President, decisions on the FY 2011 
Budget had already been made. The FBI will work with participating 
agencies to identify and relay funding requirements through appropriate 
channels to the Department of Justice, the Office of Management and 
Budget, and Congress.

    Mr. Wolf. Will that be based on the number like if there is 
overhead and everything like embassies do abroad, will that be 
if you have three people, you will pay a percentage of it or 
how will----
    Mr. Mueller. I would like to split it up as much as I can. 
But I want to get as much input, whether it be from the 
perspective of people or funds, from other agencies who are 
participating, but I did not want to hold up the process as we 
went through this.
    So I have got the people on the ground. We have got the 
experts together. We are well on our way. And with the building 
blocks, my hope is I would have contributions from other 
contributing agencies, and then my hope is that we would have 
something in the 2012 budget that would make this a continuous 
budget item down the road.
    Mr. Wolf. Okay. Mr. Chairman, I have other questions, but 
since we are on that issue, I will just kind of end with that 
and go back to you.
    Mr. Mollohan. Mr. Ruppersberger.

              DEVELOPMENT OF THE NATIONAL SECURITY BRANCH

    Mr. Ruppersberger. Director, first I do want to 
congratulate you and all the men and women who work for the 
FBI. You do a good job. Our job in oversight, we have to look 
at certain things that we think how we can do better. One of 
the issues I want to talk about is your national security 
branch. You know, the intelligence is one of the best defenses 
against terrorism and we need to really focus on that.
    In the beginning when the national security branch stood 
up, I was concerned it was more of the culture which is 
supposed to be of the FBI--investigate, arrest, and convict. 
But when you are dealing in the intelligence arena you need a 
certain kind of culture and collecting and analyzing and issues 
like that. Then there were some problems with certain people 
leaving, whatever, but I understand that the national security 
branch is really coming together pretty well, and could you 
explain where you are on that.
    Mr. Mueller. Yes. First of all, I do think that because you 
are an FBI agent and well versed in law enforcement techniques, 
that does not mean you cannot utilize those skills to develop 
intelligence. And I do believe early on, our organization, 
agents, analysts, and professional support understood that we 
had to prevent terrorist attacks, and that is a result of good 
intelligence, not necessarily putting people in jail.
    The caliber and quality of the intelligence analytical 
corps has dramatically improved over the last several years. 
Actually, Harvard Law School is doing a study, and has looked 
at us under the microscope in terms of an organization going 
through change, and we had a professor go out and visit offices 
he wanted to go to. He visited them 2 years apart, and he came 
back and he basically said, This is a different, completely 
different analytical corps than I saw 2 years ago.
    I do believe that the quality of our products, the ability 
of a Special Agent in Charge of a division to look at what is 
happening in his or her domain and understand the intelligence 
threats and then task persons to collect against the gaps that 
we don't have has dramatically improved.
    Mr. Mueller. The areas in which we still need improvement 
are to continue to grow our analytical corps and the persons 
who can support that analytical corps; and data input and the 
tasks that are necessary to accumulate the data that can then 
be analyzed. The other side of it is data aggregation and 
better search tools on the IT side.
    So those are the areas in which we still need to drive 
forward, again, continuing to improve our analyst capacity with 
additional personnel as well as improved information 
technology.

               JURISDICTIONAL ISSUES BETWEEN FBI AND DHS

    Mr. Ruppersberger. Now, you were a prosecutor years ago and 
then in this role, so you knew law enforcement pretty well. 
Anyone who has been in law enforcement understands sometimes 
there are turf battles, whether they are Federal, State or 
local.
    What I am concerned about--because I am on another 
subcommittee, Appropriations with Homeland Security--is really 
the issue of who is in charge with respect to the FBI and 
Homeland Security. If I were the President, I would have the 
FBI in charge, by the way.
    There have been turf battles that I have been aware of and 
whatever, and these were years ago, but I think it is really 
important that you and Secretary Napolitano really focus on 
where we are and on who is in charge of what, not only in 
Homeland, but you are talking cybersecurity, as an example.
    The President gave a directive to Homeland Security that 
they are supposed to be involved in dot-com and dot-gov. I see 
Homeland Security as having so many missions on their table 
that I don't know how they are going to accomplish all of them, 
and I think there are 22 different areas that they have to deal 
with.
    I am really focusing more on the issue of terrorism and on 
how you deal with them on that issue.
    Secondly, if you could address the cyberattack. We know 
cyber is a very serious issue. It is a serious threat to our 
country, to our businesses. Yet Homeland Security has a long 
way to go in order to be able to develop the programs that are 
necessary to deal with this issue. I feel more secure that NSA, 
who has the military side, has the technology--they need to 
know where it goes--but I think Homeland Security has a ways to 
go.
    So, in working together with them on those two issues, how 
are you dealing with Napolitano? Do you have any 
recommendations on who should be in charge of what or who 
should have certain responsibilities?
    Mr. Mueller. I don't disagree. There has been some 
ambiguity, let me say, in terms of certain areas when it comes 
to terrorism, most particularly in terms of the delivery of 
information to State and local law enforcement. In the past 
there has been confusion as to their relationship with fusion 
centers, which have been established in every State, generally 
through the Governors and the Joint Terrorism Task Forces. 
Almost everyone I know defers to the Joint Terrorism Task 
Forces when it comes to action.
    Mr. Ruppersberger. Can I stop you there?
    I think that the Joint Terrorism Task Force is probably our 
best defense right now against terrorism because of the strike 
force concept. You are in charge, and you know you are in 
charge, but you have disciplines from every major agency in the 
United States there to fight terrorism. So I think it is a 
great program.
    Mr. Mueller. And I believe that that is acknowledged.
    The issue that we are working out with DHS, and we are 
doing it jointly, is the relationship of the fusion centers to 
Joint Terrorism Task Forces. No two fusion centers are 
necessarily the same. They are different. They have been 
established often for different purposes in different aspects 
of the local government. Our effort is to contribute to the 
success of the fusion centers and also to make certain that 
fusion centers are contributing to the success of the Joint 
Terrorism Task Force, and we are doing that jointly with DHS.
    Very briefly, on the cyber side, our role is investigating 
cyber attacks, preventing cyber attacks. Our principal vehicle 
to do that is the National Cyber Investigative Joint Task 
Force, which has the contribution of any number of agencies, 
including NSA, to identify particular threats and to 
investigate the sourcing of those threats and attribute them to 
either a country, an individual or a group of individuals. That 
is our role.
    I think it is relatively clear that we do not have a role 
in protecting dot-com, dot-edu or the rest. That is DHS's 
responsibility. I do believe that our role, and the principal 
role that we should play--and I think we play it fairly well--
is to bring to the Cyber Task Force arena what we have learned 
and have utilized in the Joint Terrorism Task Force arena.

                          HOMEGROWN TERRORISTS

    Mr. Ruppersberger. Another area is homegrown terrorists. 
When you are looking at what we are doing throughout the 
world--and I think our military, our CIA and NSA are doing a 
really good job in other parts of the world, but more and more, 
I am concerned. We are getting information that we are going to 
see homegrown terrorists, and it already started just last 
week, and then we had the Colorado issue. You know, there are 
certain people who might be in certain minority populations or 
whatever who have been treated very poorly throughout their 
whole lives, and who are very much vulnerable to having an al 
Qaeda-type situation recruit them for jihad or whatever.
    How are you dealing with homegrown terrorists? What is your 
opinion on the homegrown terrorist issue?
    Mr. Mueller. I do not think you can really attribute 
homegrown terrorists--I would call them lone wolves--to any 
particular segment of any society. Abdulmutallab had one of the 
best educations you could get in the U.K. He came from a very 
wealthy family, and he was not homegrown, quite obviously.
    Mr. Ruppersberger. Part of my question, and where I am 
leading, though, is like the woman who was----
    Mr. Mueller. Yes, I know. She is the one who was just 
arrested, ``Jihad Jane.''
    Mr. Ruppersberger. Right.
    Mr. Mueller. There are a number of ways that we do that. We 
try to pick up on communications, whether it be the Internet or 
otherwise, in which a person has gone from First Amendment 
protected activity to undertaking some attack. We have a number 
of tripwires around, whether it be in chemical companies or in 
weapon shops, where we ask people to alert us to persons who 
may display the characteristics of somebody who may utilize a 
weapon or explosives to kill others.
    It is the most difficult thing we address because you don't 
have the opportunity to pick up on communications. You don't 
have the opportunity to pick up on persons who may be on the 
periphery to this to whom this person may have talked, and it 
is the biggest single threat that we face in the 
counterterrorism arena in the United States.
    Mr. Ruppersberger. Sir, I have one more question. Do I have 
any time left?
    Mr. Mollohan. You are fine. Continue to march.
    Mr. Ruppersberger. Okay. I want to talk about domestic 
gangs. Gangs are a serious problem in this country.
    Mr. Mueller. It is also in the domestic terrorism arena. In 
1995, McVeigh blew up the Oklahoma City building. That is still 
the type of domestic terrorist incident that can kill many 
people and that we have to be alert to. So it is not just 
somebody who follows an international terrorist ideology; it is 
also somebody who is much more domestic oriented.

                           THREATS FROM GANGS

    Mr. Ruppersberger. Okay. The issue of gangs. Gangs are a 
very serious problem. A lot of times you have children in 
middle school who are being recruited for gangs. There is a lot 
of reason for that. Their family lives are not very good, and 
the gangs become their families, but there are a lot of issues 
there.
    What do you feel are the biggest threats for gangs and 
which gangs at this point? I mean, you have Crips. You have 
Bloods. You have MS-13. It is on the east coast, west coast and 
in a lot of parts of the country.
    The other issue, too, is that we have spent so much money 
on terrorism, and we have not spent as much money on drugs, and 
drugs probably still impacts more people in this country in a 
negative way than terrorism does. It is unfortunate that we 
have not been able to give the resources to drugs that we 
should. And that ties into some of the gang issues, too, 
because a lot of the gangs are dealing with drugs, prostitution 
and that type thing.
    Mr. Mueller. We have doubled, if not tripled, Safe Street 
Task Forces since 2001, which have, in my mind, the same types 
of capabilities that Joint Terrorism Task Forces have. Gangs 
have proliferated since the last time we were here. I am not 
certain that hundreds of thousands of the percentage of growth 
in gangs, but gangs have proliferated over the last several 
years. You mentioned a few. MS-13 is still bloody and violent.
    The other aspect that we have seen is where gangs used to 
be fairly localized and then became nationalized, now they are 
internationalized. We have close working relationships--for 
instance, if you talk about MS-13--with El Salvador, Honduras, 
Guatemala, and Mexico, because there are substantial components 
of those gangs operating in those countries. We have a task 
force down in El Salvador now that focuses on the MS-13 gangs, 
because it is a revolving door between El Salvador and the 
United States. It is true with many other gangs at this point, 
but we have asked, and have received over the last several 
years--and I believe we have a request in this budget--for 
additional capabilities when it comes to addressing the gang 
phenomenon.
    Mr. Ruppersberger. Okay. Thank you for your testimony.
    Mr. Mollohan. Mr. Serrano.
    Mr. Serrano. Thank you, Mr. Chairman.
    Welcome, Mr. Director.
    Mr. Mueller. Sir.

                NEW AGENTS VISITING THE HOLOCAUST MUSEUM

    Mr. Serrano. Prior to asking you a couple of questions, 
does the FBI still continue the practice of bringing new agents 
to the Holocaust Museum?
    Mr. Mueller. Yes, sir.
    Mr. Serrano. Just to have you on the record once again, 
because you know I am a big supporter of that action, could you 
tell the committee why you think that is important, why the 
Bureau thinks that that is important?
    Mr. Mueller. The worst thing that can happen to law 
enforcement or, for that matter, to an intelligence agency is 
to lose sight of the fact that the public has given you an 
immense amount of power to exercise. They give you a badge and 
a gun, and you have tremendous power to affect persons' lives. 
It is important that each of our agents, analysts and others 
understand that power, and, most particularly, that you have an 
obligation not to abuse that power. So the trip to the 
Holocaust Museum is to impress upon people what can happen when 
you lose sight of the authority you have been given and the 
constraints upon that authority to do good.
    Mr. Serrano. Well, I thank you. I thank you for that 
statement, and I wanted to put you on the record again, because 
I think it is really something that is very, very important and 
something that I commend you for.
    Mr. Mueller. Let me just check on one thing, if I may. I 
haven't been asked that question in the last few months. I 
wanted to make sure I was right when I said absolutely. If they 
discontinued it, I didn't know about it. But no, it is firm 
that that is the case.
    Mr. Serrano. Well, I am glad they didn't.

                           WHITE COLLAR CRIME

    In past hearings we have discussed publicly, you and I, my 
concern and the concerns of others that the focus on the war on 
terror, which is extremely necessary--at the top of our list--
would take away from the whole issue of the war on white-collar 
crimes. In view of what happened on Wall Street, and in view of 
what happened to our economy, we know that some people have 
been convicted and have gone to jail who had certain dealings 
within our economy, but as for so-called insiders, to my 
knowledge, none have been indicted or convicted.
    So, first, am I correct? If not, then what has happened 
there to make people like me feel that while we are fighting 
the very important and necessary war on terrorism, we are not 
short on resources or on man/womanpower, if you will, to fight 
the other wars that we have to fight? The drug war is also 
included in that.
    Mr. Mueller. We have been given additional resources for 
white-collar crime, and we requested additional resources in 
the 2011 budget, but we have probably close to, the last I saw, 
2,900-some--I am sure it is up to at least 3,000 or over in 
terms of just mortgage fraud cases. We are not talking about 
corporate fraud, securities fraud, other fraud. This is just in 
mortgage fraud cases.
    Now, our effort has been to identify those cases with 
losses in excess of $1 million, and we have taken the most 
serious cases and are running with them. We have set up a 
number of working groups and task forces around the country to 
enlist State and local support, but also to triage the cases, 
attempting to get State and local law enforcement to follow up 
on cases that we don't have the resources to meet and to track. 
We would like to be dealing with more, but the fact of the 
matter is, that there are so many out there that we can't reach 
all of them.
    We have been very successful in the cases we have brought, 
and we have brought cases against insiders. We have brought 
cases against banking executives and securities firms 
executives. We currently have a number of pending prosecutions 
of high-profile persons who have abused their trust at the top 
of various organizations.
    I would be happy to give you more of a breakdown of the 
number of indictments and the number of persons and what we 
have done. I cannot tell you that we are able to do all we 
would want. We do have to triage, but it is much like that 
which we saw immediately after 2001-2002 when we had a series 
of corporate cases--Worldcom, Healthcom, Enron--where we had a 
substantial challenge to get through those cases in the same 
way we are going through these cases now.
    Mr. Serrano. So, when you say you wish you could do more, 
is that because there is so much out there that it is hard to 
keep up with all of it, which is a terrible sign, or is it that 
there is a shortage of resources?
    Mr. Mueller. It is a shortage of resources. We can use many 
more forensic accountants. I can use far more agents who have 
spent time on Wall Street, who know Wall Street, who have done 
well--I mean, the good agents from Wall Street who know Wall 
Street.
    Mr. Serrano. I got worried for a minute.
    Mr. Mueller. We do have a number of those. They help to 
prosecute them because they know the ins and outs. It is always 
a question of resources, and I think we are making a 
substantial dent in the workload, but yes, it is always a 
question of resources.
    Mr. Serrano. Now, at the expense of getting the obvious 
answer, which is that it is a great relationship, what is the 
relationship between the Bureau and the Securities and Exchange 
Commission in terms of their turning over information to you or 
their doing some legwork, if you will, if that may help you?
    Mr. Mueller. There has been a wholesale change at the 
Securities and Exchange Commission. The individuals who come 
over to take over the investigative side of the Securities and 
Exchange Commission are former Assistant United States 
Attorneys, who have worked well with the FBI over the years and 
with whom both we and the Department have a very close 
relationship.
    There is one area I know we are working closely on, and 
that is making certain that documents that are subpoenaed by 
one entity go to a database so that, if there is authority for 
the other entity to have those documents, you don't have to 
replicate what had been done by the previous entity. It seems 
basic and simple, but we have been working with them so that 
there is a common database structure. When we pull in 
documents, we want to ensure that they can be utilized and 
searched, given the appropriate authorizations by the FBI and 
the Securities and Exchange Commission, and then be ready for 
the prosecutors. That has not always been the case.
    That is just a small example of an area we are working on 
to make certain that we coordinate the civil on their side with 
our criminal activities.
    Mr. Serrano. Thank you.

                        HATE CRIMES ENFORCEMENT

    Let me take you over to the area of hate crimes. As you 
know, the President has signed new legislation that covers 
issues that we needed to cover in this area. There is also the 
concern that many of us have about hate crimes directed at 
immigrants or having to do with the whole immigration issue. As 
we get closer, hopefully, to an immigration reform bill, I 
think there will be more people acting out their anger and 
their hate and their differences with the immigrant community. 
Also, if this economy doesn't turn around quickly, there will 
be more feelings somehow that immigrants are causing problems.
    So, in general, as to the issue of hate crimes, what can 
you tell me about the involvement of the FBI? Again, is the 
Bureau in the situation where it can't do as much as it would 
want to do for whatever reasons--resources or that it is just 
focusing in on the war on terror?
    Lastly, what kind of requests, if any, are you getting from 
local authorities on issues that they feel they need FBI 
involvement?
    Mr. Mueller. Well, we have augmented our agents and our 
focus on civil rights in general, of which hate crimes, quite 
obviously, are a strong part.
    As I believe you are aware, we had an initiative looking at 
the civil rights cases that had been unaddressed for 40 or 50 
years, and that initiative we have been involved with for now 2 
years. We have had some very successful prosecutions even 
though they are 30 or 40 years after the events themselves took 
place.
    But when it comes specifically to hate crimes, we generally 
back up State and local authorities. They want to handle them. 
If we do not believe they are being handled appropriately, we 
and the U.S. Attorney's Office will move in to make sure they 
are handled appropriately. It is not an overwhelming workload, 
and we should be available, because if we are not available to 
do that, nobody is.
    So we have not seen, I don't believe, an uptick in hate 
crimes, although, with the new legislation, we undoubtedly will 
see an uptick in the numbers, and we will have to address 
those.
    The other thing I would say we are pressing on is when it 
comes to reporting the numbers for the reports that we produce 
in terms of crime up and down and the like. State and local law 
enforcement have not been amongst the leaders in terms of 
reporting hate crimes, and so we continuously push State and 
local law enforcement to record that so that we have some 
accurate accounting throughout the country as to what is 
happening with that type of criminal activity in the same way 
we do with rapes and murders and robberies and burglaries.

                   RECRUITMENT IN DIVERSE COMMUNITIES

    Mr. Serrano. One last point and question, Mr. Director. In 
the past, at public hearings, in private and over the phone, I 
have discussed with you incidents where I have felt that the 
Bureau was taking actions that I thought were unfair--not 
taking actions, but things that have happened historically 
about the treatment of certain communities by the FBI in 
general. For the record, you and I have discussed this, and I 
believe it has been very helpful, for instance, in releasing 
documents about 60 years of FBI behavior towards the Puerto 
Rico independence movement and so on.
    Having said that, you know I have great respect for the 
Bureau, and I have great respect for you, and I think that 
anyone who is a member of the FBI is a person who should be 
proud of the work they do. So, with that in mind, every chance 
I get, I encourage people from my community to consider the 
Bureau as a career. So I bring the question of recruitment.
    How do you recruit these days? Where are you recruiting 
these days? Are you recruiting? How do people from communities 
like mine, both the physical community and the racial and 
ethnic community that I represent, get a shot at joining the 
Bureau?
    Mr. Mueller. Everybody has a shot at joining the Bureau.
    I will tell you, though, that it goes back to what I say 
about the power that one has when you give one the authority of 
being an FBI agent. We generally take persons who have had 
another career beforehand. In other words, the most important 
criterion, in our mind, is judgment, maturity and integrity in 
terms of becoming an FBI agent. Consequently, we don't do as 
well as other agencies who recruit out of college, and it is 
for the reason that we believe that the Bureau is enhanced by 
having persons with a number of skills. It can be military. It 
can be police. It can be a teacher. It can be an accountant. It 
can be, in this day and age, somebody with regional expertise 
or languages. But generally, they will be 3 or 4 years out of 
college when they come to us. We have recruiting drives for 
particular specialties.
    I will tell you I think last year we had something like 
73,000 individuals who sought to become special agents, but 
that does not mean that we want you to, in any way, reduce your 
encouragement, your recruiting a person from your community. We 
need the representation of every person in this country.
    Mr. Serrano. Well, I am considering a next career at this 
point.
    Mr. Mueller. I can give waivers.
    Mr. Serrano. I am glad you cleared that up about 3 or 4 
years out of college. The way you were saying it, for a while 
it sounded like the Bureau was going to have a lot of older 
people. I am glad you cleared that up.
    Thank you so much, Mr. Director.
    Thank you, Mr. Chairman.
    Mr. Mollohan. Thank you, Mr. Serrano.
    Mr. Fattah.
    Mr. Fattah. Thank you.
    Let me first applaud your efforts. I wrote to you about 
this whole mortgage fraud area over, I think, 2 years ago and 
about the fact that these numbers of cases are, well, quite 
close to 3,000 now, up from, I think you testified in your 
written testimony, 400. So, from 2003, I think it is 
extraordinary and important, and I note that there have been 
significant arrests in Pennsylvania, in and around 
Philadelphia, and I am very pleased that the FBI has been quite 
aggressive on this matter.
    I want to go through a couple of things.

                  TERRORISM INTERROGATIONS, CONTINUED

    One, your long public service from your days of leaving the 
Armed Forces goes over any number of Presidencies; as best as I 
can count, you know, Ford, Reagan, Bush I and II, Clinton, 
Carter, and now President Obama. So you have served in a 
variety of capacities. You took this job a few days before 9/
11. Since that fateful day, you have done a great deal to make 
sure that our country could be safe, and you should be 
applauded for that.
    Given your entirety of your experience, I know there is 
probably some discomfort about the criticism about how we are 
handling some of these cases now, and I just want to go back 
over some material because I think that you said--and I want to 
make sure that we get it on the record--that no arrests in the 
United States of America are being handled any differently for 
suspected terrorists since 9/11 up until this moment; is that 
correct?
    Mr. Mueller. With the rest of the United States, we have 
followed essentially the same procedures, yes, sir.
    Mr. Fattah. So, in fact, what is being criticized by this 
Christmas Day activity is kind of like somehow we played a weak 
hand. From my read of this, it is not actually true. That is to 
say that what you had was you had a suspect who was injured--
that is, an explosive went off, and he was injured--and before 
he could get medical treatment, surgery, he was questioned to 
make sure that there was no other immediate public danger. Then 
he went into surgery. When he came out of surgery, as many who 
have been in surgery, he was less responsive. Then after that 
point, he became more responsive and has been cooperating.
    Am I mischaracterizing that in any way?
    Mr. Mueller. No. I think--and that is accurate. The only 
thing I would say is that after he came out of the medical 
procedures--I am not sure it was surgery, but there were 
certainly medical procedures----
    Mr. Fattah. Whatever it was. Okay.
    Mr. Mueller [continuing]. He was suffering burns, and that 
he was less responsive that evening than he had been before in 
terms of answering questions.
    Mr. Fattah. Right; but that the notion that somehow he was 
being coddled just doesn't square with the facts in this 
instance.
    Mr. Mueller. I am sorry, sir. I had not heard that word.
    Mr. Fattah. Well, coddled. There has been a lot of 
criticism that he is being treated--you know, that we should be 
so much more aggressive somehow, you know, like we have been in 
the past with the shoe bomber. But your testimony is that this 
is exactly the same way these matters have been handled?
    Mr. Mueller. I think they have been handled pretty much 
identically, yes, sir.
    Mr. Fattah. Okay. I want to just cover one other thing.

                 CIVILIAN TRIALS FOR TERRORISM SUSPECTS

    Now, there has been a lot of discussion about trials. You 
are aware and you testified about all of the threats facing the 
country from the national criminal enterprises, you know, both 
the Albanian mafia and the African criminal organizations. You 
can go through a whole list. We have domestic terrorists and 
the drug cartels. We have had a lot of trials in America.
    Mr. Mueller. Yes, sir.
    Mr. Fattah. So you have an expert view about the threats 
that face our country.
    Is there any circumstance in which you would advise our 
country that we couldn't put someone on trial that we had 
captured because we would be unsafe? I mean, have we gotten to 
the point where these threats outweigh our pursuit of justice, 
and that the FBI could not protect an American city in which a 
trial was taking place?
    Mr. Mueller. I think we are getting a little bit beyond 
where I feel comfortable testifying. It is really speculative.
    Mr. Fattah. Okay. Well, you can see, heretofore all of the 
cases that have gone on, and there have been some 300 trials of 
terrorists in the country. Have there been incidences where 
those trials were taking place in which Americans have been 
harmed or have been under some threat?
    Mr. Mueller. Not to my knowledge.
    Mr. Fattah. Okay.
    Mr. Mueller. That is to say I don't believe any have been 
harmed. As to say under a threat, I can't speak to that because 
I am not familiar with the circumstances, but I am not aware of 
a person's being harmed or of any serious threats in the course 
of one of those trials.
    Mr. Fattah. You just had very significant success today, in 
terms of the Mumbai attacks, at a trial in which someone was 
found guilty of the attacks in India where 136 people lost 
their lives, right?
    Mr. Mueller. Well, I believe there is an individual who is 
going to plead guilty----
    Mr. Fattah. Pled guilty.
    Mr. Mueller [continuing]. Either today or tomorrow.
    Mr. Fattah. Today. You have been in here. I have been out 
there.
    Okay. So, you know, what I am saying is that we are going 
after drug cartel leaders, and we are going after people 
involved in criminal enterprises in a variety of ways. I just 
want to be clear because there is a lot of political dialogue 
as to whether we could put someone on trial in New York City or 
not. Rather, we have gotten to the point--in many developing 
countries, you know, putting someone on trial is a dangerous 
thing. You know, it could be a problem. I just thought in the 
United States of America that we would not be in a position 
where we would be fearful of taking someone who had harmed 
American citizens and of putting him before the bar of justice.
    Mr. Mueller. I understand your concern, Congressman.
    Mr. Fattah. Thank you very much.
    Mr. Mollohan. Mr. Schiff.
    Mr. Schiff. Thank you, Mr. Chairman.
    Thank you, Mr. Director, for being here.

                      DNA AND FINGERPRINT ANALYSIS

    I have two questions. The first is an issue of great 
concern to hundreds of jurisdictions around the country, 
dealing with the backlog of DNA profiles collected from crime 
scenes and offenders. In Los Angeles, as you know, the LAPD and 
the sheriff's department have backlogs of several thousand 
sexual assault kits. In order to close those backlogs, the city 
and county have often outsourced their samples to private labs. 
You know, that has been helpful, but there is now a second 
backlog that has been created because once the samples come 
back from the private labs, the city and county need to do a 
technical review of every case to ensure that the private lab 
did the job right.
    So, last year, for example, with the Chairman's help, we 
got $500,000 for the City of Los Angeles to get through the 
backlog. They used that money to contract out. They got through 
the backlog by contracting out, but now they still have not 
uploaded them in CODIS because of this 100 percent technical 
review requirement.
    That doesn't make sense to me for a couple of reasons. One, 
it is expensive. Two, none of the technical reviews have come 
up with any errors that I am aware of in terms of the private 
labs. Three, you could have a 100 percent requirement of a 
technical review where there is a match made once it is 
uploaded into CODIS. Therefore, only when it is actually 
utilized do you need to go through, you know, what looks 
increasingly like a redundant step.
    So my question is: Is this really necessary? Can't we 
really cut down on the backlog, really at no expense, by 
eliminating this 100 percent review requirement except in a 
case where it is a hit in CODIS where it could actually make a 
difference? That is the first question.
    The second question on mentoring. One area we have tried to 
make progress in dealing with circumstances where sex offenders 
take advantage of volunteer programs is to have a system of 
screening volunteers for mentoring programs. Congress tried to 
accomplish that goal first with the National Child Protection 
Act of 1993 and later with the Volunteers for Children Act. 
Youth-serving organizations got access to FBI checks working 
with their States. Still, though, more than two-thirds of the 
States don't have a workable, affordable system for youth-
serving organizations to screen the people who want to 
volunteer with them.
    In 2003, we passed the PROTECT Act, which was a national 
pilot, allowing youth-serving organizations to conduct national 
fingerprint-based background checks. The FBI has now run, I 
think, 60,000 checks through the pilot. In 6 percent of those 
cases, they have turned up criminal records of serious concern. 
For example, the pilot identified an applicant who was a 
registered sex offender for having intercourse with a child 
under the age of 15, but because he was applying in a different 
State, only a national check would have turned up his record. 
These checks can be conducted for a fee of less than $25.
    I have introduced legislation, with the support of Chairman 
Conyers, the Child Protection Improvements Act, which is 
bipartisan legislation to build off the success of that pilot 
and to put in place a permanent fee-supported system to ensure 
that every child-serving organization has the ability to 
quickly and cheaply do these checks. Senator Schumer introduced 
identical legislation in the Senate, but the bill has been 
stymied, notwithstanding bipartisan, bicameral support, in 
large part because we were told, despite repeated requests to 
the DOJ and the FBI, no formal comment has been offered on the 
bill, so they are reluctant to move the bill without having the 
DOJ or the FBI weigh in one way or the other, we like it and go 
forward, or we don't like it and would like to see it fixed.
    So I wrote, along with Senator Schumer, Congressman Mike 
Rogers, Senator Hatch, to the Justice Department, asking for 
the Department's views on the bill, and we still have not heard 
back. If you could get us an answer, let us know whether you 
support it so we can move forward, or if you think things need 
to be changed in it, let us know that, too.
    Mr. Mueller. Addressing the second question first, I will 
say I will carry back to the Department of Justice your request 
for their views on that particular legislation. I understand 
the importance of that legislation, but I will carry the 
request back to the Department of Justice.
    [The information follows:]

             Views on the Child Protection Improvement Act

    The FBI does not have any comments at this time. Any Department of 
Justice or Administration views will be provided through the normal 
Executive Branch legislative review process.

    Mr. Schiff. Well, I think, you know, they are going to be 
principally interested in what is the FBI's view on this 
because it implicates the FBI more than any other part of the 
DOJ.
    Mr. Mueller. If it is a question of additional name checks, 
we can handle that. If it is a question of who pays, then that 
is another issue altogether. I don't know the ins and outs of 
the bill. I would expect that someplace in there the cost of 
doing this is a factor in somebody's view, but we do millions 
of name checks now. We are through our name check backlog, and 
I can't imagine that that would be a substantial issue for us, 
but I don't know what other issues there might be. In any 
event, I will take it back to Justice and try to get back to 
you on that.
    Mr. Schiff. Thank you.
    Mr. Mueller. On the DNA backlog, and from the dialogue we 
have had over the years on the DNA backlog and on the ingestion 
of the samples, addressing, first of all, your question in 
terms of the request for quality control and where it is 
reviewed by a separate set of experts before it is put into 
CODIS, we are looking at that.
    My expectation is we will remove some of those hurdles in 
the very near future. I know that has been an issue. I know you 
raised it yesterday with the Attorney General. It is one we 
have been looking at, and we want to remove the obstacles to 
the providing of those samples to CODIS. So I think we will be 
able to get back to you relatively shortly with what we hope 
will be a fix in that area.
    [The information follows:]

           Answer on Fix for the DNA Technical Review Problem

    Many law enforcement agencies collaborate with private laboratories 
for analysis of their DNA samples. The FBI Laboratory is currently 
reviewing its existing policies, standards and protocols, to include 
requirements for outsourcing DNA analysis to private laboratories and 
review of their results by public law enforcement laboratories, to 
enhance NDIS efficiency. Private laboratories are and will continue to 
be an integral part of the process and a contributor to the success of 
NDIS. The current policy assessment will engage both public and private 
laboratories in identifying ways to enhance these contributions.

    More generally, I would say that the backlog that we have 
had in terms of processing DNA samples will be reduced to 
almost nothing by September. We now ingest, I think it is, 
25,000 samples a month. Now we will go up to 90,000 a month 
given the resources that were appropriated for us back in 2009. 
We have now brought those persons onboard. We are reorienting 
how we do things, and we are also using robotics in ways we 
have not in the past so that, by September, our hope is that 
there will be no more than a 30-day delay in ingesting any new 
samples that come in regardless of the amounts that have 
tripled or quadrupled over the years, as I know you understand.
    Mr. Schiff. Do you know where the backlog is now? What kind 
of numbers do you have?
    Mr. Mueller. I would have to get back to you on that. I 
have charts showing the elimination by September, but where we 
are right now in March, I would have to get back to you on it.
    Mr. Schiff. If you would, which would be where we are now 
compared to a year ago----
    Mr. Mueller. Yes.
    Mr. Schiff [continuing]. And how fast we are processing 
them as compared to a year ago. That would be very helpful.
    [The information follows:]

                         Update on DNA Backlog

    As of March 2010, the backlog of offender samples at the FBI 
Laboratory was 298,749 samples. One year ago, the FBI Laboratory's 
capacity for analyzing offender samples was less than 700 samples per 
month. Because of enhancements and technology improvements, the 
capacity of the FBI Laboratory for offender sample analysis has 
increased in the past year to approximately 25,000 samples per month, 
with the eventual goal of analyzing approximately 90,000 samples per 
month. With the capacity of 90,000 samples per month, the FBI will be 
able to analyze all samples received with a 30 day turnaround time once 
the backlog is eliminated. At this time, the FBI anticipates the 
backlog will be eliminated by fall 2010.

    Mr. Schiff. I would like to work with you also on a couple 
of related issues. One is the lack of uniformity in the loci 
that we look at and those that others in Europe and other parts 
of the world look at. Our databases can't talk to each other 
because of that. I would love to see if we could work on an 
international effort to harmonize, you know, what part of the 
DNA strand we look at to compare.
    The arrestee issue, which the President recently spoke in 
favor of, we would love to try to advance.
    Finally, a couple of other, I know, controversial issues, 
but the running of partial DNA as well as----
    Mr. Mueller. Familial DNA.
    Mr. Schiff [continuing]. Familial DNA, both of which I 
support and think make sense, which will take violent people 
off the streets, and I think we can have the right safeguards 
in place not to violate anyone's privacy.
    So I look forward to working with you on those issues. 
Thank you.
    Mr. Mueller. I do, too.
    If I might add, of the universe of samples that are to be 
ingested in, we also look at what we are going to have to do to 
ramp up to obtain those samples.
    The other thing I would say, in terms of working with 
Europe, one of the biggest concerns we have with Europe is 
their privacy rules that inhibit dialogues and discussions in 
terms of exchanges and the capability of identifying criminals 
who populate both our side of the pond and the other side.
    Mr. Fattah. Will the gentleman yield?
    Mr. Schiff. If I have time, yes.
    Mr. Fattah. I know in the European Union, all of those in 
law enforcement have been cooperating one to another in between 
their various countries on all of this.
    Are you saying that, in terms of interacting with us, there 
is still a ways to go?
    Mr. Mueller. Yes, but in terms of the action amongst 
themselves, it is the lowest common denominator. Then it is a 
question of if they have different views on privacy than, 
perhaps, we do, and that becomes a problem when the law 
enforcement elements of both countries want to work things out 
and exchange information.
    Mr. Schiff. Thank you, Mr. Chairman.

                   LAW ENFORCEMENT IN INDIAN COUNTRY

    Mr. Mollohan. Director Mueller, it is well established and 
sad fact that public safety services in Indian Country are 
severely lacking, the result being that the criminal 
victimization rate on tribal lands is significantly in excess 
of the national average. I know you know that, and I know of 
the kind of scarce resources you are dealing with as you 
address that problem.
    A Native American living on reservation lands can expect 
fewer police officers, longer emergency response times and 
higher crime rates than the average person living outside of 
Indian Country. I know that I am not alone in finding these 
disparities disturbing and unfair.
    I am pleased to see that this administration, the 
Department of Justice and the FBI are all supplementing the 
increased resources provided by this committee last year to 
address this problem.
    I know it is further disturbing, fundamentally disturbing, 
that the victims and the targets of these crimes are 
predominantly women. Because of the jurisdictional issues, 
there are structurally difficult questions about going into an 
investigation and helping to provide law enforcement activities 
in Indian Country. But there is also just a fundamental lack of 
resources, too.
    So can you describe the trends the FBI has seen in the 
level and types of crimes committed in Indian Country over some 
reasonable period, say, over the last 5 years?
    Mr. Mueller. I will probably have to get back to you with 
specific statistics on that.
    Mr. Mollohan. You may submit that for the record.
    Mr. Mueller. I will do that.
    [The information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Mueller. I can tell you I have tried to corral off the 
resources the Bureau is putting into Indian Country. From 
September 11th, I had to reassign a number of criminal agents. 
I have left the same numbers of criminal agents working in 
Indian Country since that time, but it still is inadequate. It 
is not enough.
    When you say crimes against women, it is crimes against 
women and children. We take the most serious ones, but it is 
inadequate, and I am not certain ultimately that we in the FBI 
can satisfy the need for police services in Indian Country. It 
is going to take other organizations to be ramped up and to 
have the training and the capability of addressing crimes on 
Indian reservations as well as ourselves. It is an issue that 
we try to address with the resources that have been allocated 
to it. We have requested additional resources and are getting 
some, but it still is not necessarily adequate to the crime 
that we have seen grow over the last several years.
    Mr. Mollohan. I commend you for your request for additional 
resources, and I can assure you that this subcommittee is going 
to be inclined to be responsive.
    On a practical level, as I understand it, there are over 
200 individual reservations and you have, approximately, 100 
officers to cover those 200 reservations.
    Does that sound right?
    Mr. Mueller. That is correct. That is correct.
    Mr. Mollohan. I guess it just prompts me to ask: What can 
you expect to accomplish when you are spread that thin? I mean, 
on the face of it, that is inadequate.
    Mr. Mueller. What we accomplish is we address the most 
serious cases with the United States attorneys, but our agents' 
work is stretched. Their caseloads are unbelievable. The time 
they spend away from their families and other life to provide 
the services to the Indian Country is truly remarkable, but 
every one of them thinks that they are contributing 
substantially in the work that they are doing; but we are 
overstretched.
    There are others with the State and local authorities who 
may have some concurrent jurisdiction who are also 
overstretched, but we do what we can with the resources that 
are allocated to it. The one thing I have made certain is that 
they have not been reduced even though we have the first 
priority of stopping the next terrorist attack.
    Mr. Mollohan. Here, if you are able to provide it 
accurately, or for the written record, how would you compare 
your law enforcement presence in Indian Country to your 
presence in comparably-sized rural areas?
    Mr. Mueller. I think it really would be difficult to look 
at apples and oranges. There are areas in the far West where we 
have very, very low coverage, but where the population is 
fairly low. I would have to get back to you in response to that 
question.
    [The information follows:]

     Comparison of Agent Coverage in Indian Country to Coverage in 
                      Comparably-Sized Rural Areas

    The FBI does not currently have this data available; however, the 
FBI has been specifically appropriated funding for 70 Special Agent 
positions to address its responsibility to investigate crimes in Indian 
Country. The FBI has supplemented those 70 specifically appropriated 
positions with additional Violent Crime Special Agents and has 
consistently dedicated over 100 agents full-time to investigate crime 
in Indian Country over the past 10 years. In addition to the full-time 
dedicated Indian Country agents, over 40 Special Agents work part-time 
on Indian Country cases. The majority of the Special Agents working on 
Indian Country cases are assigned to small rural Resident Agencies.

    Mr. Mollohan. Maybe this would be an even better 
comparison. How about the areas where crime rates are 
comparable to those in Indian Country? In other words, where 
are the areas with comparable crime rates to crime rates in 
Indian Country, and how do you compare your coverage in those 
areas to Indian Country?
    Mr. Mueller. I would have to get back to you on that.
    [The information follows:]

  Comparison of Agent Coverage in Indian Country to Coverage in Areas 
                      With Comparable Crime Rates.

    The Bureau of Indian Affairs submits crime data within Indian 
Country to the FBI's Criminal Justice Information Services Division 
(CJIS) in aggregate at the end of the year, which is published in the 
FBI's Uniform Crime Report. The crime data submitted only reflects 
crimes where the sentence is less than one year (due to sentence 
limitations within the tribal communities). Therefore, it is not 
possible to compare the level of FBI resources dedicated to an Indian 
Country region with the level of resources dedicated to a similarly-
sized region elsewhere in the country with a similar crime threat.

    Mr. Mollohan. Did you follow that?
    Mr. Mueller. Yes, sir.
    Mr. Mollohan. Okay. Good.
    President Obama's budget request proposes to add 45 new 
agents to your Indian Country program. As I understand it, 
those agents are to be funded out of the Bureau of Indian 
Affairs.
    Why that arrangement? Why aren't the requests for that 
increased number of agents in your budget?
    Mr. Mueller. I would have to get back to you on that, sir. 
I am not familiar with the intricacy of that arrangement.
    Excuse me. Just a second.
    I would have to get back to you on that. I do believe that 
we want to prioritize it, but we have the white-collar crime, 
terrorism and the like. Consequently we are looking for support 
in terms of adding agents for this particular responsibility. 
We have the same understanding when it comes to health care 
fraud, for instance, with other departments--HHS--so we are 
hoping to have--
    Mr. Mollohan. Transferring the money to pay for your 
agents?
    Mr. Mueller. Yes.
    Mr. Mollohan. Well, I don't know. Maybe with health care or 
white-collar crime, there are spikes in these areas, so maybe 
it makes sense to fund them out of other budgets. It doesn't 
make sense to me for these agents to be paid for from the 
Bureau of Indian Affairs because I don't think there is any 
contention that this is a spike that is going to go away. I 
think funding them in the Bureau of Indian Affairs creates the 
situation where you are not building your base, and where those 
dollars could disappear very easily.
    Different subcommittees have different priorities and 
different demands on their dollars. I think we would rather see 
this funding particularly included in your request so that it 
becomes a part of your base, and so that there is a consistency 
and a dependability about the availability of the agents we are 
able to increase who are dedicated to these assignments.
    Mr. Mueller. I will have to get back to the committee on 
that, sir.
    [The information follows:]

  Official Response on Why the Indian Country Agents are Being Funded 
                              Through BIA

    Twenty-five percent of all violent crimes prosecuted by United 
States Attorneys occur on Indian Reservations. As of March 2009, the 
FBI had over 2,300 pending cases, of which 75 percent involved 
homicides, sexual/physical abuse of children, rape, and aggravated 
assault. Given the large geographic size and complexity of federal laws 
in Indian Country, coordination between FBI and BIA is critical. The 
reimbursable funding through BIA fosters such coordination. The FBI 
believes additional resources are imperative to combat crimes in Indian 
Country, whether they be directly funded or through a reimbursable 
program.

    Mr. Mollohan. I would like to get some other information 
highlighting the problems in Indian Country. The FBI budget 
request also proposes to add two forensic examiners to your lab 
to address evidence processing for Indian Country cases. Two 
forensic examiners. The budget notes that the 164-day average 
turnaround time for Indian Country cases is so lengthy that the 
results are often useless for purposes of intelligence and lead 
generation. I mean, there is almost an inadequacy to the point 
of not being able to really provide the service in Indian 
Country. So we are very pleased to see this requested increase, 
and I think we will be very responsive to it.
    If you know, give us for the record how the 164-day average 
turnaround time for lab case processing compares to the labwide 
average turnaround for evidence processing?
    Mr. Mueller. I would have to get back to you on that.
    [The information follows:]
          lab-wide average evidence processing turnaround time
    The average turnaround time for Indian Country casework in Fiscal 
Year 2009 was 168 days. The average turnaround time for all casework 
completed by the FBI Laboratory in this same time period was 274 days.

    Mr. Mueller. Also, one of the things we had requested is, 
yes, additional examiners in the FBI laboratory, but there are 
other laboratories that are closer to Indian Country that might 
provide the same services if they had funding.
    Mr. Mollohan. Okay. Well, we will certainly look at it from 
that perspective as well.
    My understanding is that the violent crime rate in Indian 
Country is about two-and-a-half times higher than the national 
average, and that 25 percent of all violent crimes prosecuted 
by U.S. Attorneys occur on Indian reservations. Seventy-five 
percent of the FBI's 2,368 current cases in Indian Country 
involve homicides, child abuse, as you pointed out, or violent 
assaults. They are really just terrible statistics. We 
appreciate the fact that the administration is focusing on it, 
and we look forward to being responsive to that.
    Mr. Serrano asked a number of questions about white-collar 
crime, so we have some questions for the record that we will 
submit there to supplement those.

                                SENTINEL

    Mr. Mollohan. One last line of questioning, Mr. Director. I 
understand that the FBI has recently discovered some problems 
with phase 2 of the Sentinel program, which will affect the 
budget and the schedule for both that phase and, perhaps, for 
the overall project. That news, of course, makes everybody 
nervous because of the experience with Sentinel's predecessor, 
the Virtual Case File.
    What are the problems? What is the nature of the problems 
that we are experiencing with Sentinel?
    Mr. Mueller. Let me start by saying that we sent in the 
requirements for the system back in, I think, 2005, and the 
contract was let in 2006.
    I believe we put in the first phase in 2007. It is a 
successful system in that we have a number of agents who are 
already using it out in the field. Phase 2 was to go to the 
field at the end of 2009, the beginning of 2010 in terms of 
pilots. We have delayed that, and that delay is attributable to 
basically three reasons. Over a period of time, both the 
technology, as well as our business practices, have changed, 
and the users have looked for additional items in phase 2 that 
had not been, and could not have been, anticipated back in 
2005.
    Mr. Mollohan. Added requirements from the agency?
    Mr. Mueller. Yes, but not large-scale requirements; they 
were rather minimal requirements, but before we pushed it out 
into the field, we wanted to make certain that we maximized the 
usability so it would have a high degree of user acceptance. To 
the extent that we have had it out in the field, it already has 
a high degree of user acceptance.
    The three issues were, first of all, some design changes 
from the perspective of the users that we have been very 
reluctant to do, but these make some sense. Secondly, there are 
issues relating to coding that we needed to address before we 
sent it out. Thirdly, there are system requirements that we 
wanted to make absolutely certain that we had in place so that, 
when we rolled it out, it would be successful. So the pilots 
that we anticipated rolling out just about now or a little bit 
before now----
    Mr. Mollohan. For phase 2?
    Mr. Mueller [continuing]. For phase 2, will be rolled out 
this summer. We had expected to have the whole system completed 
in 2010. It will push the system completion into 2011.
    But I can tell you I am the one who made the decision to 
delay until we got these issues addressed, and I am comfortable 
and confident that the system is working. It is a good system 
and will be beneficial when we are through.
    Mr. Mollohan. Phase 2 is a good system, and it is working?
    Mr. Mueller. Yes, which is completely different from our 
previous experience, which I would not want to replicate in any 
way in the future. I can also say, with our contractor, while 
there have been issues, we have a very close relationship. Both 
ourselves and Lockheed want to make certain this works.
    Mr. Mollohan. Well, let me ask questions about that. The 
problems that you have described, are they agency problems 
because of added requirements, or are they contractor problems?
    Mr. Mueller. There are certainly problems on both sides. 
This is always the case in something like this.
    Mr. Mollohan. How does that impact the question of the 
award fees?
    Mr. Mueller. We are in discussions with the contractor on 
that right now. We partially halted the continued work on 
phases 3 and 4 until these issues are resolved.
    Mr. Mollohan. Can you describe those? What are those issues 
that you are talking about?
    Mr. Mueller. The three that I described.
    On the one hand, there were certain things that users 
requested. Secondly, there were coding issues. Thirdly, we 
wanted to make certain that the system, when it goes out, meets 
the infrastructure requirements.
    Mr. Mollohan. Do those changes to the contract and the 
requirements have a budgetary impact?
    Mr. Mueller. They will. What size? I cannot tell you at 
this point.
    Mr. Mollohan. But it has a budgetary impact?
    Mr. Mueller. It will increase the cost, yes. In looking at 
it, we believe we can address those costs with what we have in 
our budget; but again, that is something that we are discussing 
with----
    Mr. Mollohan. In the 2011 budget request, do you propose to 
pay for those increased costs as a result of these problems?
    Mr. Mueller. We are at the initial stages of determining 
exactly----
    Mr. Mollohan. Well, we have your request.
    Mr. Mueller. Pardon?
    Mr. Mollohan. We have your 2011 request. Is it contained in 
it?
    Mr. Mueller. No, it is not.
    Mr. Mollohan. Is it possible that you would pay for some or 
all of those cost increases through--what do you call the 
payments--the reward fees, the performance award fees?
    Mr. Mueller. Yes. There will be give on both sides. Let me 
put it that way.
    Mr. Mollohan. So those discussions are ongoing?
    Mr. Mueller. Yes, they are ongoing.
    Mr. Mollohan. Otherwise you would be looking at a 
reprogramming?
    Mr. Mueller. I am not certain the vehicle we would use, but 
we will keep what we have to date, and we will continue to keep 
you apprised.
    Mr. Mollohan. Right now you are holding back a portion of 
the contractor's fees perhaps as a means to pay for it?
    Mr. Mueller. We have partially stopped the work on phases 3 
and 4 until we get satisfactory resolution of the issues that 
we won't resolve before we move it.
    Another point I might make is that our experience in the 
past is we had one solid contract. You either lived or died in 
that contract. After phase 1, we went into an incremental 
development where we decided to develop phases so we could 
accept a particular phase before we moved on to the next phase, 
and so we could make certain that it met our expectations. This 
is exactly why we went to incremental development as opposed to 
the development process we had used before.
    Mr. Mollohan. You expect to have this system up and 
operating by?
    Mr. Mueller. Well, the system is operating now.
    Mr. Mollohan. Okay.
    Mr. Mueller. For phase 2, the pilots will begin this 
summer, which will be pushed out to the field as a whole. 
Basically this is the largest phase. The most momentous part of 
the project is phase 2. Phases 3 and 4 will follow relatively 
quickly after that.
    Mr. Mollohan. It sounds like you are on top of it.
    Mr. Mueller. One has to stay on top of it weekly, 
absolutely.
    Mr. Mollohan. Mr. Wolf.

                            GANG ENFORCEMENT

    Mr. Wolf. Let me ask you a couple of questions because we 
do have a vote, and I will submit.
    On the gang issue, the committee plused up the gang issue. 
The National Gang Intelligence Center has determined that gangs 
are active in every State of the Union, and that 39 of the 
gangs have been identified as national threats. In 2008, 58 
percent of the local law enforcement agencies reported that 
criminal gangs were active in their jurisdictions, an almost 30 
percent increase since 2004. The committee included a 
significant increase of $25 million above your request to 
specifically address this issue.
    Could you tell the committee how many Safe Street Task 
Forces exist? How many additional agents and task forces will 
be added as a result of the fiscal year 2010 increase? Is this 
a top law enforcement priority?
    Mr. Mueller. Excuse me just 1 second.
    I needed to know the background from those who are more 
knowledgeable with the figures. Approximately 13 million is 
going to additional personnel. We intend to establish three new 
Safe Street Task Forces, and to augment the Safe Street Task 
Forces we already have. As I mentioned before, and I can get 
you the statistics, we have doubled, if not tripled, the number 
of Safe Street Task Forces we put up in the last several years.
    Mr. Wolf. But is the money used in a way--because as you 
recall, there had been a request that maybe you use the same 
approach that was during used during the 1960s with regard to 
organized crime, that this becomes a major effort, that you 
actually have someone in the Bureau who is focusing like a 
laser beam, because if you live in a neighborhood where you are 
terrorized by gangs, in essence that is a form of domestic 
terrorism that the people can't really live and----
    Mr. Mueller. We certainly have a gang intelligence center. 
We have gang task forces. But what we have come to understand 
is we need fusion centers focusing on particular gangs. And as 
I think you are aware, we have a specific MS-13 Task Force with 
persons operating not just in headquarters, but also in the 
various communities like yours, but also Los Angeles, adjunct 
task forces in places like El Salvador.
    So we have focused on gangs in general, but we also are 
pushing to make sure that we focus on particular gangs and take 
out the leadership and, to the extent possible, remove those 
gangs from particular neighborhoods. I think we have had some 
success in neighborhoods in northern Virginia, for instance. 
And I know that the new Assistant Director in Charge has, as 
one of the mandates, to work very closely with you to address 
that continuous phenomenon that we see there.
    Mr. Wolf. Okay. Hopefully, we can continue the additional 
funding. Again, if somebody is living in a poor neighborhood, 
they fear for their family. What impact do you see in the 
killings that took place in Mexico the other day, that violence 
spreading across the border?
    Mr. Mueller. We have had pockets of violence spreading 
across the border; in particular, when it has come to 
kidnappings, cross-border kidnappings, San Diego, El Paso, 
Juarez, San Diego, Tijuana. And we have task forces in both of 
our cities to address that. This occurred on Saturday afternoon 
and we are working very closely with our Mexican counterparts 
to identify the persons responsible and assure that they see 
justice.
    I sent an inspector down to take charge of combining the 
resources, not just the FBI, but DEA, ATF, and others who wish 
to participate to address that circumstance. This is the first 
instance that we have seen, I believe, of individuals 
associated with the American Consulate in Juarez attacked in 
such a brazen manner.
    Mr. Wolf. Did the car have a Texas license, a U.S. license 
plate, the car that----
    Mr. Mueller. I am not sure whether it did or not.
    Mr. Wolf [continuing]. That the people who were murdered 
were in? Was that an American car----
    Mr. Mueller. I would have to get back to you on the 
specifics. But in one car there were two individuals murdered. 
In another car there was one individual murdered. His family 
was actually in another car, but both those cars had come from 
the same birthday party on that day.
    [The information follows:]

  License Plate on Car Driven by Consular Employee Murdered in Juarez

    The license plate of the vehicle driven by the American citizen 
victim was a Texas license plate, and the license plate of the vehicle 
driven by the Mexican national victim was a Mexican license plate.

    Mr. Wolf. Okay. I would be interested to know if they were 
U.S. license plates, embassy license plates or Texas license 
plates. There are a number of other questions I will ask on 
that.

                        TERRORIST RADICALIZATION

    The radicalization issue, over the last year or so, we have 
seen a disturbing trend of terror attacks planned and carried 
out by individuals, including Americans, who had been 
radicalized often through contact with violent Islamist 
influences. The Fort Hood killings, the Christmas Day bombing, 
now Jihad Jane, and others, Mobley, the fellow the other day, 
Mobley. There have been reports in recent days of Americans 
being detained in Yemen, Pakistan, and other countries. Does 
this represent a significant shift in the terrorist threat 
facing the Nation, and how is the FBI adjusting to counter 
these new developments?
    Mr. Mueller. I think those in the Intelligence Community, 
including ourselves, would say there has been a shift in the 
degree of concern about affiliates of al Qaeda growing in 
strength and presenting a more enhanced threat to the United 
States. By that I am talking about the FATA, the Federally 
Administered Tribal Areas--Waziristan, western Pakistan, 
eastern Afghanistan--which has been the heartland of al Qaeda 
and still presents a threat. We saw with Najibullah Zazi, the 
individual from Denver who went back to New York, and 
anticipated attacking the New York subways back in September. 
He was recruited and trained in Afghanistan.
    We also are concerned about Yemen individuals. In the last 
year, year and a half, an individual, Bledsoe, who was 
responsible for the Little Rock shootings of the military 
recruiters, one of them died----
    Mr. Wolf. Did he have contact with Awlaki when he was in 
Yemen?
    Mr. Mueller. He was in Yemen at the time. He was in Yemen 
and then came back to the United States, but was radicalized in 
Yemen. Abdulmutallab originated in Yemen. We have a number of 
ties now with Yemen; so Yemen is an issue as well as Somalia. 
And we have had a number of individuals from communities in the 
United States who have traveled to Somalia to train and to 
fight with al Shabab, and we have continuing concerns about 
that being exported back to the United States.
    So those are three focal points of our concerns overseas, 
and then we have, quite obviously, what we discussed before, 
homegrown terrorists who have been radicalized on the Internet 
or otherwise.
    Mr. Wolf. Does it trouble you that there are 50,000 
Americans living in Yemen today?
    Mr. Mueller. I think that is the case. Many of them are 
dual citizens, but I believe it is that many.
    Mr. Wolf. And the Bureau is dealing with that insofar as--
--
    Mr. Mueller. Yes. Not just the Bureau, but in terms of 
identifying individuals who may have been radicalized in Yemen 
and want to come back to the United States and undertake 
terrorist attacks, we are attempting to identify those persons. 
We are also attempting to identify persons who were radicalized 
by Awlaki or others overseas; never traveled overseas, but were 
radicalized to the point where they want to undertake terrorist 
attacks in the United States.
    Mr. Wolf. I am going to submit others for the record. I am 
just wondering who do you think is doing a better job with 
regard to the radicalization issue? Does Great Britain do a 
better job than we do? We used to hear the story, well, that is 
a problem over there, but we don't have the problem. Now we see 
Jihad Jane from Philadelphia. I mean, I read your bio. You are 
from the Philadelphia area. She is from Pennsburg, I think it 
is. We see the five now in Alexandria. We see Major Hassan, a 
Virginia Tech graduate, born here.
    Are we doing everything we should? And maybe there should 
be a development of a different approach. Clearly what we used 
to say is no longer the case because it is a problem. Are you 
thinking deep insofar as how do we deal with this from a 
different way that we continue to adjust because maybe we were 
not doing as well as maybe people said we were in comparison to 
other countries?
    Mr. Mueller. Well, I do think there are somewhat different 
problems that the U.K. faces where it has communities that have 
been alienated, and to a certain extent, I guess you would say, 
dispossessed, and they are focused on deradicalization in many 
of these communities.
    We have diverse communities of Muslims in the United 
States, and we are all immigrants, and we have immigrants from 
any number of African countries, Middle Eastern countries and 
the like. So there are very few areas that you can look at and 
say, okay, these are pockets----
    Mr. Wolf. Correct. I am from an immigrant family, too. The 
tie is green, and my grandfather could barely speak English. He 
was German. He had a German bakery in south Philadelphia. What 
I meant was the radicalization. Jihad Jane was not from Yemen. 
She was from the United States, born and raised, and so that is 
what I am talking about from that perspective. You find Mobley, 
who--I think he was.
    So I am talking about a radicalization of a domestic 
population that we hadn't thought of before. You had me 
confused thinking that in England they talk about the Pakistan 
community. I am talking about domestic recruitment of people 
who were born and raised here in the United States that 
normally you would not think, because if you look at--I looked 
at the Senate Foreign Relations Committee. They talked about a 
number of ``blonde hair, blue eye'' types moving to Yemen who 
had been radicalized in prisons. So to think a little bit 
differently--and we don't have enough time. Maybe we can talk 
about it. Are you open to seeing if there is some other way to 
kind of deal with that?
    Mr. Mueller. Absolutely. And we have looked at places of 
radicalization, points of radicalization, prisons, for 
instance, with the Federal as well as State and local prison 
systems, the various communities, and working with the leaders, 
outreach in the communities.
    But I will tell you the one that is most worrisome is the 
Internet. I think everybody will tell you that the influence of 
the Internet not just in radicalization, but moving from 
radicalization to organization to undertaking terrorist 
attacks, is the greatest, most serious phenomenon that has 
resulted, I believe, in many of the radicalization cases we 
have seen in the United States. It has not been the communities 
or persons in the communities, it has been the Internet.
    Mr. Wolf. Right. Well, maybe you can have someone come up 
and we can see--there may be something that the committee can 
do with regard to giving you some resources to kind of deal 
with that issue.
    Mr. Mueller. Thank you, sir.
    Mr. Wolf. Anyway, thank you. I will have questions for the 
record, too, Mr. Chairman.
    Mr. Mollohan. Thank you, Mr. Wolf.
    Mr. Schiff.
    Mr. Schiff. Thank you, Mr. Chairman.

                          FIREARMS TRAFFICKING

    I will be real quick, and then we are going to have to run. 
But is there any indication in the case of the three that were 
killed in Mexico that came from the same party that they were 
targeted because they were American, or do we still not know 
whether it was a case of mistaken identity?
    Mr. Mueller. I think it is too early in the investigation 
to reach a conclusion. I know there has been speculation in the 
media, but I do believe it is too early to reach any 
conclusion.
    Mr. Schiff. On the broader issue of guns going down to 
Mexico from the United States, I know this is an area where ATF 
probably has primary jurisdiction, but what do your agents tell 
you about the willingness of U.S. Attorneys to prosecute these 
cases, even cases that may involve straw purchasers that are 
fairly low on the hierarchy, but nonetheless might lead to the 
prosecution of those enlarged--those engaged in the larger gun 
trafficking?
    Mr. Mueller. I have not heard the attitude of U.S. 
Attorneys. Periodically I hear that judges would just as soon 
not do gun cases in Federal court, but it has been some time 
since I have actually been in Federal court, but that is what I 
picked up. I am going to meet with the U.S. Attorneys next 
week, and that is something I will try to remember to mention 
to them, but I have not heard one way or the other.
    Mr. Schiff. Please let us know if they need the resources 
to do it or they need the encouragement to do it.
    Mr. Mueller. I can tell you they will tell you they need 
the resources to do it.
    Mr. Schiff. I am sure that is right.

                  FOLLOW-UP ON THE ROBERT HANSSEN CASE

    Very quickly, and you may need to get back to me in writing 
on this, but in my prior lifetime as an assistant U.S. 
Attorney, I prosecuted the Miller spy case. So I followed with 
great interest the Hanssen case and now the Aragoncillo case.
    The inspector general did a follow-up report on some 
recommendations that were made after Hanssen about changes the 
FBI could make to improve its ability to ferret out people who 
were attacking the FBI from the inside, and the follow-up--the 
recent follow-up assessment found that there were several very 
important recommendations that had not yet been implemented, 
including the establishment of a new unit detailed--or 
dedicated exclusively to internal penetration; there was the 
need to have a need-to-know system; the computers, which had 
probably been set back by the Virtual Case File system, 
Sentinel problems. But also one of the key concerns in Hanssen 
was Hanssen's ability to walk out of the FBI headquarters with 
these classified documents undetected, and the IG also found 
that the FBI Information Assurance Program didn't address that 
key concern.
    Can you respond back to us in writing and let us know where 
FBI is in----
    Mr. Mueller. I think that is at least 2 years ago, I may be 
wrong, that IG report. But I know, for instance, we have had 
that unit in place for a period of time, and we have addressed 
the other concerns that the IG had. But overall, in terms of 
the recommendations in the wake of Hanssen, we have adopted, I 
would say, 90, 95 percent of them. These were several, and I 
think very few given the overall suggestions that were made, 
that we had to close up, but I do believe they were closed.
    [The information follows:]

        Progress In Responding To IG Report On Hanssen Follow-Up

    In September 2007, the Department of Justice Office of Inspector 
General issued a special report entitled ``A review of the FBI's 
progress in responding to the recommendations in the Office of 
Inspector General Report on Robert Hanssen.'' Of the 21 recommendations 
issued, only nine still remain open. The FBI is working diligently with 
the Office of Inspector General to resolve these issues, and will keep 
the Committee apprised of the status.

    Mr. Schiff. Thank you.
    Thanks, Chairman.
    Mr. Mollohan. Director Mueller, thank you very much for 
your testimony here today, and thank you for your service to 
the country and the service of all your employees at the FBI. 
We will have some questions for the record, and I know you will 
respond to them.
    Mr. Mueller. Thank you.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
                                           Thursday, March 4, 2010.

          BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES

                                WITNESS

KENNETH MELSON, DEPUTY DIRECTOR, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, 
    AND EXPLOSIVES

                 Opening Statement of Chairman Mollohan

    Mr. Mollohan. The hearing will come to order. Good morning, 
I would like to welcome Kenneth Melson, Deputy Director of the 
Bureau of Alcohol, Tobacco, Firearms, and Explosives to discuss 
his agency's fiscal year 2011 budget request.
    We are pleased to have you here, Mr. Melson, and thank you 
for your time. I would like to note for members of the public 
who may be present that Mr. Melson, as Deputy Director, is 
currently heading the agency since the director position is 
vacant.
    While we are here today to discuss all aspects of your 
budget request, I suspect that a significant portion of 
collective conversation will focus on firearms trafficking 
enforcement and your efforts to control the movement of weapons 
across the U.S./Mexico border.
    This Subcommittee has provided you with more than $100 
million over the past few fiscal years to address an ever-
growing case load of border related trafficking investigations, 
and we are pleased to see some positive results coming out of 
this effort.
    ATF agents have achieved more than 800 convictions, seized 
almost 7,000 firearms, and trained nearly 900 Mexican law 
enforcement counterparts through your Southwest Border 
programs.
    As valued as these successes are, however, much work 
remains to be done to rein in the violence being perpetrated by 
Mexican drug cartels on both sides of the border.
    In addition to the focus on your Southwest Border mission, 
I do also expect the conversation to touch on a few of your 
other program areas this morning. One of particular interest to 
me is your regulatory program, which has experienced some 
challenges since your split with the Department of Treasury. 
The general public relies on the timely issuance of regulations 
to protect public safety, and regulated businesses rely on the 
timely issuance of regulations to guide their commercial 
behavior. Neither group is well served when the regulatory 
process becomes unnecessarily bogged down.
    I know this is an area that ATF has been focused on 
improving for a few years now, and I am anxious to hear about 
your progress.
    I am sure other members have a variety of other topics they 
will raise with you, and we look forward to having a lively 
exchange.
    Your written statement will be made a part of the record. 
Before you begin with your summary of your remarks, I would 
like to call on Mr. Culberson for any introductory comments he 
may have.

                 Introductory Remarks by Mr. Culberson

    Mr. Culberson. Thank you, Mr. Chairman. Director Melson, 
thank you for being with us and particularly for the service 
that you and all of the officers that serve with you do for the 
Nation to help protect us, we generally do appreciate it and 
commend you for all that you do.
    You are requesting an appropriation of $1.16 billion, an 
increase of $42.2 million or 3.8 percent. And considering what 
the scope of your responsibilities are it is actually not that 
substantial because a good portion of that money is simply to 
maintain staffing levels that were provided in the Stimulus 
Bill for Project Gun Runner to address illegal firearms 
trafficking along the southwest border, which is a terrible 
problem. There is sort of an undeclared war going on along the 
southwest border on the Mexican side that has been a continuing 
catastrophe and a real concern, and we appreciate the good work 
that you and your officers are doing along the southwest 
border.
    But the Committee would be interested to hear about the 
progress the ATF has made with Gun Runner and what the next 
steps are in the fight against the drug cartels.
    And on behalf of Ranking Member Wolf, he also will have 
some questions about the substantial increase above the request 
that the Committee provided in fiscal year 2010 for the anti-
gang activities of the Violent Crime Impact Teams, something 
that is vitally important language that Mr. Wolf put in a 
number of years ago.
    Again, welcome, we thank you for your service and look 
forward to hearing your testimony.
    Mr. Mollohan. Thank you, Mr. Culberson.
    Mr. Melson, your written statement will be made a part of 
the record.

               Opening Remarks of Deputy Director Nelson

    Mr. Melson. Thank you. Mr. Chairman, Mr. Culberson, thank 
you so much for allowing us to come today to discuss our budget 
request for 2011 for the ATF. On behalf of the men and women of 
ATF I would like to convey our appreciation to the Subcommittee 
for your interest in our mission and our activities to help 
protect the American public.
    I would like to particularly thank you for your support in 
our 2010 budget submission. We are aware that you have many 
competing priorities and are cutting the budget up to serve all 
those, which is a difficult task.
    As Mr. Culberson indicated, for this coming year, we are 
requesting $1.16 billion. The request includes $1.15 billion 
for current services and $12 million for building ATF's 
capacity to carry out its law enforcement missions.
    As you know, ATF's primary mission is to protect our 
community from violent crime and terrorism by investigating and 
prosecuting, with the help of the U.S. Attorney's Office, the 
illicit use of firearms and explosives. The synergy between our 
regulatory authorities and investigative expertise makes the 
ATF the pre-eminent agency for investigating firearms and 
explosives.
    You may know that we have approximately 601 industry 
operation investigators, what we call IOIs, who are responsible 
for inspecting approximately 115,000 Federal firearms 
licensees, and 11,000 explosive licensees around this country, 
which is a total of 126,000 licensees that we have to inspect. 
These inspections help us identify possible diversion of 
firearms and explosives from legal commerce to illicit 
activities thereby producing leads for criminal investigation.
    Many of the 126,000 licensees do not get inspected for five 
years or more because of a lack of ATF personnel. This really 
hampers our ability to conduct inspections that help us protect 
the American people by providing leads to law enforcement to 
take crime guns out of the hands of criminals.
    The complementary nature of our regulatory and criminal 
jurisdictions is evident in our history of successes with 
investigating bombings, including the identification and the 
arrest in 2009 of a suspect in West Memphis, Arkansas who had 
used a bomb to attempt to kill Dr. Trent Pierce.
    Similarly, we have a long and proud history of 
investigating arsons, including the rash of church arsons in 
Alabama several years ago, and more recently the church fires 
in Texas.
    I would also like to note that ATF proudly shares our 
explosives expertise with our state and local partners as well 
as with the Department of Defense through our training in 
Virginia and the National Center for Explosives Research and 
Training in Huntsville, Alabama.
    You know that a recent OIG report made recommendations to 
clarify the jurisdictional issues between ATF and the FBI with 
respect to bombings. I want to assure the Subcommittee that the 
ATF and FBI have agreements in place which clarify our roles in 
the vast majority of cases which we work together. And we are 
working diligently with the Department of Justice and the FBI 
to address these areas which remain in need of clarification. 
ATF has worked successfully with the FBI for over 30 years, and 
we will continue to ensure the safety of the American people.
    Another core mission of ATF is to deny organized crime its 
profits by stopping the illegal diversion of tobacco products, 
which are depriving the states and localities of approximately 
$5 billion in tax revenue a year.
    For example, in one recent case, the ATF and the Fairfax 
County, Virginia, police department dismantled an organization 
that trafficked more than $2 million worth of contraband 
cigarettes to New York. This organization was also involved in 
money laundering and bank fraud, and had solicited an 
undercover agent to murder two of its own members.
    For the first quarter of this fiscal year, fiscal year 
2010, ATF seized $21 million in crime proceeds in tobacco 
cases. Our Budgetary Division Unit for tobacco cases for the 
entire year is only about $20 to $22 million, suggesting that 
even after equitable sharing and administrative costs these 
investigations will be paid for by the recovery of illicit 
crime proceeds.
    With respect to firearms, ATF has the expertise and 
experience to combat the threat to public safety posed by gangs 
which use guns to carry out their illicit activities. Thus ATF 
has led many successful investigations against well known 
street gangs like the Crips, the Bloods, and MS-13, as well as 
outlaw motorcycle gangs. We have established Violent Crime 
Impact Teams, known as VCITs, in some of the Nation's cities 
most impacted by violent crime to help identify and arrest the 
worst of the worst criminals, including gang members. We have 
31 VCITs currently in such cities as Richmond, Virginia; 
Birmingham, Alabama; Camden, New Jersey; and Houston and 
Laredo, Texas.
    Our regulatory authority and investigative expertise are 
also directed at dismantling firearms trafficking networks. 
Through the use of trafficking schemes, criminals divert guns 
from lawful commerce to be used in illicit activities. Firearms 
trafficking networks extend throughout the United States and 
affect communities nationwide.
    In recent years ATF has focused its attention on these 
networks, particularly those that exist primarily to supply 
weapons to the Mexican drug cartels.
    Between fiscal year 2005 and 2009, ATF has had a 
significant impact on firearm trafficking in the Southwest 
Border states.
    ATF has recommended for prosecution 900 cases involving 
2,034 defendants. 497 of those cases have charged violations 
relating to trafficking an estimated 14,923 firearms. In all 
the investigations, over 6,680 firearms have been seized and 
are no longer available to the Mexican drug cartels.
    Of the additional funding we are seeking for fiscal year 
2011, approximately $11.8 million is to annualize 37 positions 
we received in the American Recovery and Reinvestment Act to 
establish Project Gunrunner teams in New Mexico, California, 
and Texas. The annualization of these positions is necessary 
because we were not provided the base funding for the salaries 
or operational requirements of the three new Project Gunrunner 
locations.
    The fiscal year 2011 budget cycle is the first opportunity 
we have had to ask for that annualization. Absent that 
annualization we would suffer an $11.8 million operating 
deficit.
    We are also asking for approximately $2 million in 
additional resources for our participation in the National 
Response Framework, which is a federal strategy for providing a 
unified national response to national disasters and acts of 
terrorism.
    During the past five years ATF has funded these efforts 
from our base budget; we have received no dedicated funds. 
Instead, we have been forced to divert money from other very 
important programs to ESF 13.
    Mr. Chairman, Mr. Culberson, and others, I thank you again 
for the support that you give us and the support of your 
Subcommittee. With the backing of your Committee I think ATF 
can certainly build on our accomplishments and make our Nation 
much more secure.
    We look forward to working with you in pursuit of our 
shared goals. Thank you.
    [The information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Mollohan. Mr. Melson, the recorder records off a live 
mic.
    Mr. Melson. Yes, and I have the mic on now.
    Mr. Mollohan. You do. Okay. Thank you.

                           PROJECT GUNRUNNER

    Project Gunrunner. Update us on Project Gunrunner, talk to 
us a little bit about your successes and what the positive 
statistics that you have cited tell us about what we are really 
achieving with Project Gunrunner and where you think it can 
take us.
    Mr. Melson. Well, Project Gunrunner has been a very 
important part of our southwest border strategy, obviously. It 
has allowed us to focus on the trafficking of guns to Mexico, 
allowed us to work with our other federal partners such as DEA 
and ICE to combat gun trafficking, and has created the ability 
for us to have many successes.
    For example, just recently in Phoenix we disrupted a ring 
that was in the process of taking over 40 AK variants down to 
Mexico. We have had great cases and successes in Texas as well 
where we have recently taken of a similar number of guns that 
were headed towards Mexico.
    With the increased leads coming from our tracing and 
inspections and the increased personnel that we have, we are 
able to build on our investigative capabilities, and I think 
that Gunrunner is a very significant effort on our part, with 
your support, to combat gun trafficking to Mexico.
    One of the efforts we had last year was what we called 
GRIT, which was the Gunrunner Impact Team. That was a surge in 
ATF personnel in Houston where we sent 100 of our personnel to 
Houston for 120 days. It was a combined effort of sending IOIs, 
our investigators, down to inspect the licensees as well as 
agents to follow up on a backlog of leads that they had in the 
Houston area; It was very successful. We were able to arrest 
189 defendants, 150 of whom were associated with trafficking an 
estimated 644 firearms. We actually seized 443 firearms.
    Our leads that we developed out of this led to leads for 
local law enforcement and they seized 171 firearms for a total 
of 614 firearms over this 120 days.
    Mr. Mollohan. Can you put all those numbers in some 
perspective for us? What increase does that represent, or what 
percentage of the weapons that are in transit to Mexico does 
this represent?
    Mr. Melson. Well, it is hard to give you a specific 
percentage, because----
    Mr. Mollohan. No, not specific.
    Mr. Melson. We don't know how many guns are going across 
the border. Because if we had that information we would be more 
likely to be able to interdict them. So we don't know the 
universe of guns going across.
    Mr. Mollohan. So when you talk about this in your offices 
and your strategy sessions, you don't have a sense of what the 
scope and scale of the problem really is to beginning with?
    Mr. Melson. We know----
    Mr. Mollohan. I know you don't know the exact number, but--
--
    Mr. Melson. Right, we know the scope of the problem by the 
types of seizures that are occurring in Mexico. When they raid 
these homes that have caches of weapons in them that gives us 
an idea of the number that is going over. And we can be assured 
that it is only a minimal number that they are recovering in 
Mexico as related to the number that are there. So I think we 
are probably only hitting the tip of the iceberg.
    With guns going across. It is a multi faceted problem. It 
is not just being able to identify the rings that are taking 
them across, but it also is going to include, and this is 
outside our jurisdiction, the southbound check of people going 
into Mexico, which is not traditionally what the U.S. has done. 
We usually do the northbound checking, the Mexicans do the 
southbound checks.
    As part of our southwest border strategy we have been 
working very closely with our partners in Mexico. With the 
resources you have given us, by the end of this year we hope to 
have 19 special agents in Mexico in various consulates and in 
our embassy in Mexico City where we are developing very strong 
relationships with the federal police, SSP, with the 
prosecutors, PGR, with Aduanas, which is the customs people, 
and others there so that we can get better intelligence and 
better information from their seizures, which gives us leads to 
come back to the U.S.
    And try and determine----
    Mr. Mollohan. Right. My line of questioning right now is 
just to get some sense of the scale of this problem. So if you 
can't give us a really useful estimate of what percentage you 
are seizing of the guns that are going across, give us some 
sense of the increase in seizures that Gunrunner has 
represented versus pre-Gunrunner days. How many more weapons 
are you seizing today than you were seizing before?
    Mr. Melson. I will have to get back to you with that 
number, but I can tell you in general that it is a significant 
increase because of the additional resources we have along the 
southwest border.
    I think as our resources grow we are obviously going to 
seize more weapons. I think there is an unlimited number of 
weapons we should seize.
    [The information follows:]

                Comparison of Weapons Seizure Statistics

    While ATF has steadily increased the number of firearms seizures 
relating to Project Gunrunner, it is difficult to determine what 
percentage of firearms destined for Mexico are actually intercepted. 
ATP can, however, illustrate the increase in the number of firearms 
seizures as well as the number of firearms traces submitted by Mexico 
relating to pre and post Gunrunner enforcement.
    The four years preceding the initiation of Project Gunrunner (FY 
2002-2005), ATF's four Southwest Border Field Divisions seized 18,267 
firearms, as compared to the seizure of 31,157 firearms in those same 
Southwest Border Field Divisions during Project Gunrunner (FY 2006-
2009). This represents an increase of more than 70 percent.
    In 2009, a total of 53,329 firearms recovered in Mexico were 
submitted to ATF for tracing; this is nearly five times the number of 
traces submitted in 2008. As of February 1, 2010, over 3,500 firearms 
recovered in Mexico have been submitted for tracing this year.

    Mr. Mollohan. Okay, well let me get to that, because that 
is really my point here. What more could we be doing? This is a 
huge problem, particularly on the Mexican side. For the record, 
will you get use of those numbers? And I would also like the 
numbers on the pattern in Mexico, what they are experiencing 
what they are seizing, and maybe estimates about what 
percentage of the guns coming across they are seizing. I 
suppose they could probably identify the weapons that have come 
across, or maybe not. But, any way, give us some sense of the 
scale of this problem for the record.
    Do you have any requests in this budget to augment 
Gunrunner in terms of new programs, new dimensions, 
improvements looking forward that you see could be implemented 
that would make the program increasingly effective? Like you 
said, checking on the southbound traffic, for example.
    Mr. Melson. The President's Budget asks for the 
annualization of last year's recovery funds.
    Mr. Mollohan. How many agents did the recovery funds hire?
    Mr. Melson. It gave us a total of about 25 agents for the 
recovery. And we need those. And there were additional----
    Mr. Mollohan. I'm sorry, how many?
    Mr. Melson. Twenty-five.
    Mr. Mollohan. So only 25 Gunrunner agents were funded in 
the Recovery Act.
    Mr. Melson. Well, there were non-agents as well. We had 
IOIs--
    Mr. Mollohan. Agents and non-agents?
    Mr. Melson. Yes.
    Mr. Mollohan. Okay.
    Mr. Melson. So we had additional Intelligence Research 
Specialists (IRS) and IOIs that were down there.
    Mr. Mollohan. Okay.
    Mr. Melson. And this budget just asked for those 
annualizations because they have done great.
    Mr. Mollohan. Well, let me ask a question about that. It is 
great that you are asking for the annualization. So the 
Recovery Act funding was important, obviously, to the Gunrunner 
program.
    Mr. Melson. Yes, absolutely.
    Mr. Mollohan. And you are asking to annualize those 25 new 
hires.
    Mr. Melson. Yes.
    Mr. Mollohan. Why does the budget not ask for additional 
agents or other additional personnel for Gunrunner?
    Mr. Melson. We are hoping that as our budget goes through 
the process in the upcoming years that we may have requests for 
that in the budget. I think with more resources down there we 
can do a tremendous amount of work on Gunrunner projects and 
other programs, and not just along the Southwest Border, 
because this has become a national problem.
    Mr. Mollohan. Right. So I guess my question is, why aren't 
we requesting more resources? If Gunrunner is the signature 
program and in your judgment is really having a beneficial 
payoff, why aren't we scaling that program up if the problem 
continues to exist and we are only seizing a fraction of the 
guns that are going across?
    Mr. Melson. I think certainly if there were more funding 
available we could do a lot more. The President's Budget just 
asked for the annualization.
    Mr. Mollohan. If we were to look for places to address this 
problem, forgetting about the funding for a second, what would 
be the most effective effort you could undertake to further 
reduce gun running across the border?
    Mr. Melson. It would be twofold. One would be for 
additional agents not just along the Southwest Border, but 
throughout the Nation, because the guns are coming from the 
interior as well.
    The second is for industry operation investigators. Right 
now we have so few to handle so many inspections, which is the 
real backbone of our investigative capability. Without the 
compliance by the licensees regarding the regulatory matters, 
which are designed solely to help us in law enforcement, we 
lose a lot of very, very good intelligence.
    When we did the GRIT, for example, in Texas, we did in the 
120 days with our surge 1,100 inspections, and some of those 
licensees had never been inspected before. As a result of that, 
we develop relationships with our gun dealers and we develop 
intelligence. We make sure there is regulatory compliance, 
which assures us that when we recover a crime gun we can trace 
it to the first retail buyer, which helps us in our 
investigation of these gun trafficking organizations.
    The combination of agents and investigators allows us to do 
more--we would love to be able to get on a three-year cycle on 
inspections. We have a very good relationship right now with 
the industry and the organizations that represent the industry. 
I think they understand why we do this.
    Mr. Mollohan. You are still talking about efforts that 
would impact the problem that Gunrunner is focused on.
    Mr. Melson. Absolutely.
    Mr. Mollohan. Because there are some inspections for which 
an increase wouldn't benefit this effort. What is the target 
with regard to the inspection aspect of this?
    Mr. Melson. Certainly with respect to explosive licensees 
that would not necessarily pertain to the trafficking of 
firearms going southbound, but all of the other inspections of 
dealers would.
    Mr. Mollohan. All across the country?
    Mr. Melson. All across the country. For example, we just 
took down a case from Minnesota where there was an individual 
there trafficking guns to Mexico. The State of Washington is a 
source state for guns to Mexico. Florida is a source state for 
guns to Mexico.
    So this is no longer just a Southwest Border state problem. 
This is a national problem that we are seeing. Now the more we 
squeeze down there, because of your helping us to put resources 
down there, the more that activity comes into the interior of 
the country.
    Mr. Mollohan. Does your budget complement Gunrunner by 
requesting additional funds for these inspections across the 
territory? It does not?
    Mr. Melson. No, not the 2011 budget.
    Mr. Mollohan. Okay. Mr. Culberson.

                         GUN DEALER COMPLIANCE

    Mr. Culberson. Thank you, Mr. Chairman, Mr. Wolf. And 
following up on some of the Chairman's questions, Director 
Melson. The surge that you did in Houston, we have in Texas a 
long and proud history of, you know, the right to keep and bear 
arms and take a lot of pride in our dealers and owners honoring 
the law and following it.
    Of the inspections that you performed of licensed gun 
dealers what percentage of the dealers that you encounter do 
you discover violations of the law that they are not following 
the law?
    Mr. Melson. Well out of the 1100 that we inspected during 
GRIT there were 440 notices of violations. Now those could be 
very minor violations, it could be a couple 4473's that are 
missing, the forms that you have to fill out when you purchase 
a weapon, or they could be a little bit more serious. But 440 
violations out of the 1100 inspections; there were 78 adverse 
actions.
    Nationwide over the period of last year, about 53 percent 
of the inspections discovered no violation whatsoever, and less 
than one percent of licenses were revoked as a result of 
serious violations that affected public safety.
    I don't believe that the firearms dealers are the primary 
source of the problem in the U.S. with respect to a knowing 
involvement in providing guns for trafficking going south. 
Their important role for us is the regulatory compliance, 
making sure that their acquisition and disposition book is in 
order, that they do the 4473's, that they do the multiple sales 
reports.
    We have found in Texas, when we were down there on the 
GRIT, that there were some firearms dealers that proactively 
called us and told us there was suspicious activity in their 
gun shop, which led us to an investigation that resulted in 
arrests. So these gun dealers are cooperating with us. And I 
really think that the more we get out there and work with them 
in inspections the more they understand that we are not out to 
get them, we are not out to get lawful gun purchasers or 
possessors; we are out after the criminals. And the regulatory 
scheme is designed solely for us to be able to do that trace, 
to create the investigative lead, to capture the criminal.
    Mr. Culberson. So it is fair to say that over 99 percent of 
the gun dealers in the United States are following the law, and 
if they have a problem it is paperwork and minor?
    Mr. Melson. I think it is correct to say that 99 percent of 
the inspections that we do each year are of gun dealers that 
substantially follow the law.
    Mr. Culberson. And the problem we see with guns going 
south, those guns in your experience are coming from what type 
of sources? Because some of my colleagues love to point to the 
weapons flowing south is some indication of gun dealers 
breaking the law, of law-abiding citizens breaking the law, and 
therefore we need gun control, which of course defies common 
sense, because Washington, D.C. has gun control and is one of 
the most dangerous cities in the United States, and Houston, 
probably at least a third of my constituents are carry 
concealed carry permit holders and the crime rates, you know, 
we don't have a real crime problem. That law enforcement 
officer's best friend is concealed carry permit holder.
    Mr. Melson. And that is the same argument being made in 
Chicago right now.
    Mr. Culberson. Right.
    Mr. Melson. There are several sources of the weapons, and 
there is no single source that we can look to. Assuredly there 
are guns that are sold by dealers that end up in Mexico. That 
does not mean the dealer is doing anything wrong. It could very 
well, and almost in all these instances, it is a lawful sale. 
The person may be a straw purchaser, but unknown to the dealer. 
I mean there is no way you can necessarily tell the intent of 
the person.
    Mr. Culberson. Fair to say though that the gun dealers, the 
licensed gun dealers, law-abiding gun owners are not the 
problem?
    Mr. Melson. Right. Every once in a while we have a misfit, 
but that is true in any profession or business, but it is not 
them.
    The other areas could be from purchases at gun shows, they 
could be thefts from interstate shipments, it could be thefts 
from individual homes during burglaries, things--
    Mr. Culberson. Right.
    Mr. Melson [continuing]. And personal----
    Mr. Culberson. Criminal activity.
    Mr. Melson. Yes.
    Mr. Culberson. Is it also fair to say that in your 
experience and the experience of your officers that concealed 
carry permit holders are not a problem, and that they are, as 
we believe in Texas and have seen and experienced, that a 
concealed carry permit holder is a law enforcement officer's 
best friend in your experience?
    Mr. Melson. Well they certainly have not impacted us 
negatively or helped gun trafficking going south. There is no 
impact that they have in our law enforcement.
    Mr. Culberson. Your paths don't cross with those guns.
    Mr. Melson. They don't cross.
    Mr. Culberson. The Southwest Border of course is a 
continuing problem. We in Texas have a wonderful program that 
is working very well in Laredo and Del Rio sectors and in the 
Yuma sector called Operation Streamline where the--in 
cooperation with you, your officers, all the law enforcement 
agencies are working together beautifully to enforce existing 
law, and one of these days I hope to get the Chairman and Mr. 
Wolf down to see this, because the local community supports it, 
the crime rate has plummeted in Laredo and Del Rio and in Yuma 
as a result of simply enforcing existing law and prosecuting 
people that cross illegally.
    On the flip side however in the Tucson sector they don't--
if you are arrested by the Border Patrol you have a 99.6 
percent chance of never being prosecuted if you are carrying 
less than 500 pounds of dope, which is just unbelievable. So 
Tucson is like a super highway, it is wide open.
    Are you aware of problems with your officers, ATF? I was 
told by law enforcement officials in the Tucson sector when I 
visited there that it is not just the Border Patrol that is 
having trouble getting prosecutions of people they arrest, but 
also ATF and DEA. Are you aware of problems of getting 
prosecutions of people you arrest in the Tucson sector?
    Mr. Melson. Well not so much currently. When I was the 
director of the Executive Office for U.S. Attorneys, those 
issues were----
    Mr. Culberson. You talked about that, right?
    Mr. Melson. Yes. They were abundant in the Arizona area--
and I worked closely with CBP and others, the Border Patrol on 
Operation Streamline and so forth--but I believe that the new 
U.S. Attorney who is in place now is very aggressive.
    When I was the director we gave Arizona a number of new 
Assistant U.S. Attorneys. There are more Assistant U.S. 
Attorneys positions that are being allocated as we speak now.
    Mr. Culberson. Terrific, thank you.
    Mr. Melson. So I believe that situation will improve in 
Arizona.
    Mr. Culberson. Thank you.
    Mr. Melson. We certainly hope it will.
    Mr. Culberson. Thank you. If I could, one final question, 
Mr. Chairman? The Chairman has been very gracious with his 
time. You served in the Department of Justice, we met, and I 
thank you so much for your work, and I wanted to ask if I could 
finally, Mr. Chairman, and ask Director Melson, I may have a 
couple of follow ups.
    What changes in policies at the ATF have you seen as a 
result of the new Administration? Have there been new 
directives or changes and policy? I know that my constituents 
in particular, I am a very passionate--I am a life member of 
the NRA and very passionate about the Second Amendment. My 
constituents are very concerned about this new Administration's 
direction in attempting to through administrative order impose 
gun control or restrictions on the ability to purchase and own 
weapons, and what can you tell me about changes in directions 
you have seen at the AF under the new Administration.
    Mr. Melson. At this point we have not received any new 
direction from them to change our manner of operation. We are 
still using the laws that are on the books to effectively 
combat gun trafficking and violent crime to the best of our 
resources and ability. We have done a lot, I think, in this 
last year to create a good working relationship with the 
industry. We have made personal visits to some of the places of 
business to actually see what goes on so we better understand 
what the problems and the issues are.
    My personal goal is to make sure that everybody in ATF is 
accountable for what they are supposed to do both with respect 
to responsiveness to our constituents who are the gun industry 
and the explosives industry and the citizens who are trying to 
get licenses for an FFL or an FEL or an NFA weapon and so 
forth.
    Mr. Culberson. Thank you. So I can tell my fellow Texans 
the ATF, you believe in the Second Amendment, it is written in 
plain English, you are not going after ammunition or going 
after people's guns. Thank you. Thank you very much, I 
appreciate it.
    Mr. Mollohan. Thank you, Mr. Culberson. Mr. Wolf?
    Mr. Wolf. Thank you, Mr. Chairman, and Mr. Melson, we want 
to welcome you.
    Mr. Melson. Thank you.

                       VIOLENT CRIME IMPACT TEAMS

    Mr. Wolf. Thank you for your service and I thank the men 
and women who work for your agency for their service.
    I wanted to ask you a little bit and we talked a little bit 
about it when you came by the office, but ATF plays a lead role 
in the Department's program to combat gang and gang violence. 
Your Violent Crime Impact Team concept seems to be very 
effective. Can you give us the thoughts behind it and tell us 
what you are doing if you can with regard to the gang issue?
    And secondly, can you tell us where the biggest problems in 
the country today are with regard to gangs?
    Mr. Melson. All right. The VCIT Program is very important 
in our gang reduction efforts. The concept behind it is to put 
our resources where there are the worst gang issues in the 
cities, and we have 31 VCITs now. We've placed them around the 
country, one in Richmond as you know, and these are designed to 
focus resources specifically on the gang issues. As a result we 
have had some tremendous successes with respect to gangs; MS-13 
and others.
    In fact if you have read the Washington papers you will 
know that we've had a number of very good gang cases in 
Maryland taking down networks that have spanned all the way 
from Maryland to California.
    So our success with that has been very good. Our desire is 
to expand the VCIT cities from the 31 we have now to other 
cities where there are gang problems as well.
    The gangs have now spread all over the United States. They 
are no longer limited to one or two cities as perhaps they were 
in prior years, and so I don't know that I can tell you where 
the worst is, except to the extent that, in the larger cities, 
there are significant gang problems such as in Los Angeles. We 
have done tremendous work there. There is still a lot of work 
to be done in Los Angeles and in Chicago, and in some of the 
other bigger cities.
    Mr. Wolf. Would the 31 be an indication of the 31 worst 
areas in the country?
    Mr. Melson. They were at the time that we put them there. 
They were placed strategically to respond to violent gang 
activity, but I think the number of cities that would fall in 
that category now could be expanded if we had the resources to 
do that, and certainly because of our successes in that area I 
think we could show you that we would be able to make a 
significant impact on it.

                      INTERNATIONAL NEXUS TO GANGS

    Mr. Wolf. What percentage of the gang violence that you see 
has an international aspect to it? Like for instance, MS-13 
obviously is controlled partially out of El Salvador and you 
have other gangs and Mexican cartels. But of the gang problem 
in the United States if it is 100 percent and you had to do an 
impact on what percentage of that gang violence had as 
international connection versus, you know, a local gang that 
may be operating somewhere where everyone is from Philadelphia, 
if you will, versus MS-13 or some of the others, can you tell 
us where the international aspect is?
    Mr. Melson. Not with a specific percentage. I think a 
significant number of these gangs have an international 
connection, if by international connection you mean they are 
ethnically based with respect to other countries like MS-13. 
But there are still a significant number of gangs that are 
purely home grown local gangs. Many of the motorcycle gangs, 
for example, are solely controlled by elements within the U.S. 
and not outside the U.S.
    Mr. Wolf. I understand, but I am just trying to get a 
sense. How significant is the international aspect of it?
    Mr. Melson. Well there is a significant international 
aspect with respect to control in some of the gangs. I believe 
that the more these gangs are being dispersed around the United 
States that the control of these gangs, even though they may 
have begun with international gangs, are going to become more 
domesticated as they become more entrenched in our cities, but 
there is certainly a very significant involvement still of an 
international aspect. And of course if you consider gangs to be 
drug related as well you have the cartels that have a 
tremendous infusion into our economy and into our society, as 
well in our communities.
    [The information follows:]

                    International Nexus of US Gangs

    ATF is not aware of specific gang-related data that would allow for 
the calculation of the percentage of gang violence that is attributable 
to an international influence. The most comprehensive assessment of 
violent gangs is the 2009 National Gang Threat Assessment prepared by 
the National Gang Intelligence Center in collaboration with and based 
upon data collected and analyzed by the National Drug Intelligence 
Center. That report conservatively estimates gang membership in the 
United States at more than one million and states that ``local street 
gangs, or neighborhood-based street gangs, remain a significant threat 
because they continue to account for the largest number of gangs 
nationwide.''
    It also states that ``Currently, 11 national-level street gangs 
have been identified in the United States, and associates or members 
have been identified in foreign countries, according to analysis of 
federal, state and local law enforcement information. Established cells 
in foreign countries assist gangs operating in the United States in 
further developing associations with DTO's and other criminal 
organizations in those countries.''

    Mr. Wolf. So have you had any indication, and I have seen 
articles to this effect, that there has been a combination with 
regard to terrorism and gangs?
    For instance, why would a person from an international 
terrorist group, why would they take the risk to fly into 
Dulles Airport and going through customs both wherever they are 
flying from here, versus why wouldn't they just go down south 
of the border and connect into MS-13 and for a fee be taken 
from some place down there to come across the border?
    Have you seen any signs of that being the case that there 
have been gang connected to MS-13 or others just to get across 
the border and to come into the country?
    Mr. Melson. Or for terrorism related purposes?
    Mr. Wolf. Not that they have committed terrorist activity--
--
    Mr. Melson. Right.
    Mr. Wolf [continuing]. But certainly if you were the seed, 
you know, the cells to come in, but who would be potentially 
connected to terrorist activity?
    Mr. Melson. I will have to get back to you on how many, if 
any, that we have found specifically. There have been some that 
have been reported that other agencies have been involved with.
    Our concern as has been reported by others, and is the same 
concern, is that this certainly provides an opportunity for 
terrorists to come in through the Southwest Border. How many 
have actually done that I don't know that we have an answer to 
that, but it is certainly an opportunity.
    [The information follows:]

             Connection With Regards to Terrorism and Gangs

    ATF is not aware of information currently linking U.S.-based street 
gangs to international terrorist groups.

    Mr. Wolf. Or the northern border too.
    Mr. Melson. Or the northern border. That is an excellent 
point, and one that I hope that neither the Committee nor ATF 
forgets. We have a problem with the northern border as well, 
not only coming into the U.S., but with guns, drugs, and 
tobacco going across our border into Canada. We have focused so 
heavily on the Southwest Border that I think sometimes we 
neglect to look at the interior of the country as well as the 
northern border.
    Mr. Wolf. The report language for the Committee directed 
you to coordinate with the FBI which also received a 
significant increase in appropriation for anti-gang activity. 
How are the ATF and FBI dividing the responsibilities and 
working together to maximize?
    Mr. Melson. Well it depends somewhat on the particular 
geographic area. For example, in Richmond when I was an 
Assistant U.S. Attorney over there, we divided it up 
geographically within the City of Richmond, where we had VCIT 
working in one area that was high crime and the Safe Streets 
from the FBI was working in another area.
    So while we may work in different geographic areas, we work 
well together because we share our information and we work 
together in joint operations when our investigations overlap, 
or when we need additional help and resources from other 
agencies to take on.
    Mr. Wolf. Is there a rivalry too much of the time? I mean 
frankly, you know, I like the Bureau and I like the ATF. I 
stipulate, I think both of you do a great job. It does seem 
that the Bureau sometimes gets a little more credit or 
publicity or notoriety than ATF.
    Mr. Melson. They do, but you know our people are out there 
to do the job.
    Mr. Wolf. I know that.
    Mr. Melson. You know, I had been with the U.S. Attorney's 
Office for 25 years, so I have seen a lot of different agencies 
and personnel, and I can truly tell you before I even came to 
ATF that there was no other agency out there who was there just 
to do the job, to get it done, regardless of whether it was in 
their job description, and didn't really care whether they got 
the credit as long as the community was safe.
    Mr. Wolf. That is good. Last question. There are others we 
will just submit for the record.
    Do you still have staff assigned to the National Gang 
Intelligence Center over----
    Mr. Melson. Yes, We work closely with the FBI at both the 
Gang Tech and the Intelligence Center.
    Mr. Wolf. Well how do you think that is working? Glenn Fine 
has been critical. Well, I think Glenn Fine is critical. I 
think somebody ought to investigate Glenn Fine's office some 
time to find out some of the things that he is critical about. 
It seems that every time they do an investigation they release 
it to the media before they tell the agency what they are 
doing. We are trying to get Glenn Fine to look at the whole 
U.S. vs. New Black Panther Parti Dismissal issue, and he 
doesn't want to kind of get involved in this one.
    But on this, how effective is the National Gang 
Intelligence Center? Are there potential improvements? Is there 
anything that you would change or do different? Is there 
anybody participating or not participating? Did you look at 
Glenn Fine's comments about----
    Mr. Melson. Yes, we have, and we are satisfied that both 
the FBI and we, and the other participants are making the 
Intelligence Center a success. There is always room for 
improvements, and I think they are working on some of those. 
But it is an important element of our gang strategy. Because as 
you have pointed out, these gangs have fingers all over the 
place, and without a unified Intelligence Center we are not 
going to be able to work with them as much, we are not going to 
be able to focus on them as well as we could without it.
    We also work with DOJ and with respect to their involvement 
in the DEA Fusion Center with gangs as well. So there is a good 
synergy between everybody.
    I remember when I was in Virginia we were trying to work on 
a gang intelligence database for the State of Virginia and how 
hard that was to put together and how many competing interests 
there were there.
    I think the National Gang Intelligence Center has really 
overcome some of those issues nationwide and is a very 
important asset to us.
    Mr. Wolf. One last question. Do you think most state and 
local law enforcement people now know the Intelligence Center 
is there? Are they accessing it, I mean, a rural sheriff in an 
area? And if the answer is maybe not as much as they could, is 
there something that should be done to make sure that they are 
aware? I mean, if they pick up somebody that they can come to 
the center. Is there anything more that should be done?
    Mr. Melson. I would certainly hesitate to say that every 
sheriff in a county in the State of Virginia or other place 
knows of that Intelligence Center.
    I think the way we can get the word out is to work through 
our field divisions and field offices to make sure when we 
have--in conjunction with the U.S. Attorneys, meetings with the 
head of law enforcements in the area--that we talk about this 
center and how important it is and what a resource it is to 
local sheriffs. This I think is a combination of work that can 
be done with the FBI, ATF, DEA, but led by the U.S. Attorneys 
because they get the law enforcement together to talk about 
these issues, and certainly that should be something that is on 
their radar as well as on ours individually when we meet with 
the local law enforcement.
    Mr. Wolf. Thank you, Mr. Melson. Thank you, Mr. Chairman, I 
appreciate it.
    Mr. Mollohan. Thank you, Mr. Wolf.
    I understand we have three votes starting now, so that 
probably means one 15 minute vote and two 5 minute votes. If we 
could keep it going as much as possible, I would like to during 
this time. So I will certainly be pleased to leave and let 
you----
    Mr. Wolf. Do you want me to run down and vote?
    Mr. Mollohan. Sure, that would be great.

                             SPANISH ETRACE

    I understand the Spanish version of the eTrace system will 
finally be completed and deployed this month and that it is 
expected to have a big impact on the volume of cases that you 
could trace and requests you have. Can you quantify the 
expected impact on the number and quality of the trace requests 
you will receive from Mexican law enforcement counterparts?
    Mr. Melson. Well it is hard to quantify because we are not 
sure what the level of their tracing activity will be based 
upon prior experience, because the prior experience has been 
somewhat minimal.
    [The information follows:]

                       Spanish Version of eTrace

    ATF projects that we will receive about 354,000 trace requests in 
FY 2010 and about 364,000 trace requests in FY 2011. Spanish eTrace 
usage will be expanded in Mexico, Central America, and likely South 
America before the end of FY 2011.

    Mr. Mollohan. Well, what do you mean the prior experience 
has been somewhat minimal?
    Mr. Melson. There has been some difficulty in getting the 
coordination on eTrace throughout the Mexican government. While 
we have had a lot of individual eTraces and we have gone in and 
obtained information to submit for traces ourselves with the 
cooperation of the Mexican government, the network has not been 
sufficiently placed throughout Mexico to have a universal 
access to the tracing firearms.
    However, having said that, both PGR, which is the Attorney 
General's department, and SSP, which is the federal police, 
have taken a very strong interest in eTrace, and they will be 
increasing, I believe, their activity with respect to eTrace as 
a result of the Spanish version of it.
    Mr. Mollohan. Right. Well the information we have is that 
it is increasing pretty quickly right now because the firearms 
traces requested by Mexican law enforcement have steadily 
increased over the years. You processed more than 53,000 
Mexican trace requests in 2009, which is five times as many 
requests as processed the year before. So even without the 
Spanish augmentation to the program you are getting a dramatic 
increase, if those numbers are correct.
    Mr. Melson. That is right, but that is a small part of what 
I think can be traced. We got a disk with 60-some thousand 
trace requests on it that they had not given us, so we are 
working on that, and that is going to cause somewhat of a 
spike.
    But I think that with respect to the federal police, when 
they start integrating Spanish eTrace into what is in essence 
their fusion center in Mexico City, that we will see an even 
greater increase in the number of traces, and that is going to 
have several impacts on ATF.
    First of all it is going to----
    Mr. Mollohan. And that is my question, actually. What is 
the impact on the ATF?
    Mr. Melson. The first impact is it is going to start 
overwhelming our tracing center. Already with the people we 
have that are actually responding to the trace requests we are 
at capacity, if not overcapacity already. So that is going to 
burden us.
    Secondly, our tracing system itself, the computers and the 
software need to be refreshed. We are in the process of doing 
that, and hopefully as we do that we can stay up with the 
increase in the tracing.
    Thirdly, these trace requests give us more leads throughout 
the country. Every time a trace is done and it comes back to an 
FFL in some part of the country or some city our agents have 
that as a lead.
    So as these traces come in we are going to have a 
tremendous number of leads to follow up on.
    Mr. Mollohan. Okay, well I am back at handling the traces 
in the National Tracing Center.
    Mr. Melson. Right.
    Mr. Mollohan. Right now you are at the maximum capability 
of doing traces.
    Mr. Melson. Absolutely, if not beyond it.
    Mr. Mollohan. If you have had a fivefold increase over the 
last year, then you can expect a dramatic increase when spanish 
eTrace is deployed. Does your statement today anticipate this 
increase?
    Mr. Melson. Not currently.
    Mr. Mollohan. Not currently? Do you plan on submitting an 
amended budget request to address this?
    Mr. Melson. We will have to work with the department on 
that, but we could certainly use additional people in our 
tracing center.
    Mr. Mollohan. Do you have estimates of how many additional 
people you would need in your tracing center to adequately 
handle----
    Mr. Melson. I could certainly get back----
    Mr. Mollohan. Excuse me, let me ask you the question 
first----
    Mr. Melson. Sorry.
    Mr. Mollohan [continuing]. The anticipated increase in 
requests based upon the implementation of the Spanish language 
version of eTrace?
    Mr. Melson. I don't have a specific number right now only 
because it is a little bit early to see what that impact is, 
but I surely can get with you.
    Mr. Mollohan. Surely somebody has looked at that at ATF. I 
mean, you are going to have a increase.
    Mr. Melson. I can go out to the tracing center and get that 
specific information for you.
    Mr. Mollohan. Okay. I wonder if that has already happened 
and somebody sitting behind you might know the answer to that. 
Or, if you are more comfortable submitting it for the record, 
that is fine too.
    Mr. Melson. Yes, they confirmed that. We don't have an 
exact number yet because of the transition, but we can get back 
to you with a specific number on that.
    Mr. Mollohan. Okay. It is going to be a problem. ETrace is 
going to be implemented, isn't it? So it is going to be an 
issue for this year, let alone next year.
    Mr. Melson. Yes, it will be an issue this year. We actually 
released the Spanish eTrace version at the end of December, so 
it has been out there for a couple of months. It was sort of a 
beta testing period where we are trying to determine whether we 
were totally successful. We are making some changes to that and 
updating the version of it, but yes, it is going to be coming 
quickly.
    Mr. Mollohan. Okay. Well, would you please get to the 
Committee what your needs are going to be for this year, or 
what the deficit is going to be for this year and then the 
anticipated need for additional resources next year. All right?
    Mr. Melson. Okay.
    [The information follows:]

    Impact of Spanish ETrace on National Tracing Center Capabilities

    ATF projects that the NTC's workload will exceed its capacity by 
27% in FY 2011.
    The NTC is currently staffed with 61 FTE government employees and 
272 contractor employees. The NTC requires 17 additional FTE government 
employees and 74 additional contractor employees ($3.7 million) which 
is a total of 91 personnel (a 27% staffing increase consistent with the 
workload increase). The NTC has considered converting a large portion 
of its contractor employees to FTE, which if properly structured would 
result in a slight reduction in costs.
    In the long term, ATF requires additional improvements to its 
tracing workflow system to improve the accuracy, efficiency and 
timeliness of firearms tracing (est. $1.2 million). Further, ATF 
recommends expanding this workflow to include other related firearms 
databases that affect the tracing process. This would benefit the 
public both in terms of improved services related to firearms commerce 
as well as improved services relative to firearms tracing and criminal 
enforcement matters.

    Mr. Mollohan. Thank you. The eTrace system offers an 
efficient and systematic method for fulfilling trace data 
requests, but a large portion of ATF's current record holdings 
are either in paper or microfilm. For eTrace to work, it has to 
work in a digital format. Therefore you have to transition to a 
paper search of paper records. Are you dealing with that 
problem, is there a conversion effort going on, and what's the 
status of it?
    Mr. Melson. That is a huge problem that we have. We have 
like 14.4 million out of business records coming in per year, 
and they are almost all, if not all, in paper format. We don't 
have at this point a significant conversion process in place. 
We are doing some electronic scanning of the microfiche images, 
but they are not being indexed. So still if we get a hit from a 
manufacturer that says the gun was shipped to X, Y, and Z FFL, 
we can go to that FFL, but that may pull up hundreds and 
hundreds of weapons that we will have to search through by hand 
for purposes of identifying the weapon.
    That is an area that if we could fix by being able to 
electronically search them through indexing we would become so 
much more efficient that in the long run, those resources could 
be put to answering the actual trace request. Our response time 
on traces has increased 40 percent over the last year from 10 
days to 14 days.

                           REGULATORY BACKLOG

    Mr. Mollohan. Okay, thank you. We have talked about the 
regulatory backlog for more years than I can remember. I am 
quite sure Mr. Wolf was chairman of this Subcommittee when I 
raised this issue many years ago. Of course, it wasn't that 
many years ago that he was chairman, but the point is I have 
been raising this issue. Give us a sense of the accumulated 
regulatory backlog that exists at ATF.
    Mr. Melson. Well we have about 17 now that are really in 
the process which have either gone over to the Department or--
--
    Mr. Mollohan. Seventeen what? Rule makings?
    Mr. Melson. Rule makings, or have been returned to us. We 
were able to complete four of them last year either by 
determining that we would no longer go ahead with them or they 
have been completed and published. I have signed I think two 
this year.
    This is a problem, and I am embarrassed about it. I haven't 
been on long enough to fix it and I haven't been able to 
examine it well enough, but there are I think three things that 
we need to do. One is to make sure we have sufficient resources 
attributed to the reg writing. We've added a couple over the 
last year. We now have four reg writers, but the team that 
writes these regs include not only the reg writers; you also 
have to have the subject matter expert and you have to have an 
attorney on, so we have to look at that.
    Secondly----
    Mr. Mollohan. Talk a little bit now about the staff. You 
have an inadequate staff. I don't want you to forget what you 
were going to say next, but I want to know more about the staff 
aspect of it.
    Mr. Melson. We have four regulation writers right now that 
work on these regulations.
    Mr. Mollohan. Is that an improvement?
    Mr. Melson. Yes.
    Mr. Mollohan. From when?
    Mr. Melson. It is an increase of about 50 percent from a 
year or two ago. So this should help some.
    Mr. Mollohan. Well, I think we could Xerox so far this 
testimony on this issue of four years ago, but go ahead, excuse 
me.
    Mr. Melson. Yes. Well, I understand that, but I am here to 
fix it if I can. One way is for us to focus more resources on 
that, the other is to do better coordination with the 
Department, because they are an integral part of the process of 
reviewing these regulations. And so I think with those types of 
improvements we can do that.
    The other thing, Mr. Chairman, that we are doing is in some 
of the changes we are making in ATF. I am creating a quality 
assurance, quality control office within the directorate that 
has not only the regulation writers, but also the national 
tracing center and the licensing centers, so that we have an 
oversight office that makes sure that we are not only 
responsive to the public and the industry, but also responsive 
with respect to your concerns on regulation writing. It is a 
cumbersome system and it has to go to many different places to 
get approved. There are regulations that require us to 
publicize these in the federal register.
    Mr. Mollohan. No, I understand, and I am sure the committee 
understands the process. It is akin to making legislation, 
which can be extremely cumbersome.
    When you were moved to DOJ, 15 of your regulation writers 
were left at Treasury. Do you need anything near 16 regulation 
writers to keep up with the need? If you do, your request is 
woefully inadequate.
    Mr. Melson. Well yes, we need 16.
    Mr. Mollohan. No, I want the real answer. I want the real 
answer.
    Mr. Melson. But I don't want to give you just a guess and 
ask for more than we actually need. I would have to talk to our 
chief counsel and EPS to find out how many more we need.
    Mr. Mollohan. You know, that would really be a good start.
    Mr. Melson. Okay.
    Mr. Mollohan. To find out what your needs were.
    Mr. Melson. And we may have figured that out and have put 
it in our budget request.
    [The information follows:]

                 Need for Additional Regulation Writers

    ATF currently has four regulation writers who are responsible for 
approximately 30 open rulemaking proceedings that are under development 
or review, and an additional 20 concepts for rulemaking projects. The 
Bureau still does not have sufficient resources to process its 
rulemaking proceedings in a timely manner, particularly in the firearms 
area. As a result of additional petitions received from the industry 
and rulemaking needs identified during industry meetings, we would like 
to recruit four additional regulation writers. These individuals would 
help reduce the backlog of open rulemakings and address the significant 
number of pending rulemaking projects.

    Mr. Mollohan. I take you at your word. I sense your 
sincerity, and I look forward to working with you on this.
    Industry, you know, needs this clarity that comes from good 
rule making, and I know you want to do that. Mr. Wolf?
    Mr. Wolf. Yes.
    Mr. Mollohan. I am going to run and vote.
    Mr. Wolf. Thank you, Mr. Chairman. Back briefly to the gang 
issue and then I have a couple others.

                         ANTI-GANG COORDINATION

    Do you think we need a major effort with the FBI and ATF 
similar to what was done with Cosa Nostra back in the '60s, a 
major comprehensive government-wide effort to eradicate other 
gangs? If you have living in an area that is infested with 
gangs, it is a form of domestic terrorism for those families, 
many of them poor, that live in an area like that. Does it make 
sense to have a major effort similar to what was done in the 
'60s, or do you think the current approach, you are doing your 
thing, FBI does its, DEA does its, and I know so much effort 
has been gone into the counter terrorism. What are your 
thoughts about that?
    Mr. Melson. I also have a concern, and I hope I am not 
speaking out of school, of duplication of responsibilities, 
because then you do get a clash of personalities and of 
agencies trying to do the same thing in a particular 
jurisdiction.
    But having said that, I think there could be much more that 
can be done with gangs, and given a unified Department approach 
to it, along with the sufficient resources, I think we could do 
a lot in that regard.
    Mr. Wolf. Well you all do a good job. Should we do a letter 
to the Attorney General asking--or maybe this is already done. 
Is there sort of a coordinating council on this issue whereby 
the U.S. Attorney's, Marshal Service, DEA, ATF, everyone is 
kind of touching gloves every other week just sort of 
coordinated to make sure? Is that done?
    Mr. Melson. Yes, it is done through the Criminal Division, 
Gang TECC and the Fusion Centers. It is also done through the 
Attorney General's Advisory Committee and other areas.
    Mr. Wolf. Is that advisory committee, is it an advisory 
committee on gangs or is it----
    Mr. Melson. Well it is the Attorney General's Advisory 
Committee, but they have----
    Mr. Wolf. On gangs?
    Mr. Melson. No, it is a full one, but they have 
subcommittees, and they have subcommittees on violent crime and 
gangs that deal with this.
    There is also an anti-gang coordinating group at the 
Department that looks at that.
    Mr. Wolf. And how often do they meet?
    Mr. Melson. I am not sure how often they meet.
    Mr. Wolf. Well maybe we will do a letter to the Attorney 
General. I am sure he wants to deal with this issue, and maybe 
it is already being done, but to see if there could be some 
sort of formal structure. Iron sharpens iron. You are all 
together on a periodic basis and making sure, on the issue of 
gangs, not that gangs happens to be one of the things we talk 
about today, but on just gangs to deal with. Because I think 
those who live in areas that are gang infested that is as much 
of an act of terrorism on them as it is if an international 
terrorist group is coming in.
    Mr. Melson. Yes, Mr. Hoover pointed out to me that the 
anti-gang coordinating group meets once a month at the 
Department.
    Mr. Wolf. Once a month. Well let us look into that and see.

                 ATF ACTIVITIES IN IRAQ AND AFGHANISTAN

    One other issue is Congress provided funding and passed 
supplement bills for ATF to deploy personnel to Iraq. Can you 
describe what presence you have been able to stand up in Iraq 
and Afghanistan, and what training and other activities your 
people are engaged in?
    Mr. Melson. Yes. We have trained a number of Iraqi police. 
We have been participating in groups like what they call the 
Combined Explosive Exploitation Cell (CEEC) where they are 
looking at the IEDs. We are in preparation of sending people to 
Afghanistan to do the same thing. We work with the FBI on 
analyzing IEDs when they come back to the states, being sent 
over here to determine common sources and so forth. We are very 
involved in training the military with respect to the use of 
explosive canines for use over in Iraq and Afghanistan. In 
fact, there was a report back just recently that one of our 
dogs over there, being used by one of the military personnel 
has already discovered 14 IEDs before they have gone off.
    Mr. Wolf. And how many dogs do you have over there?
    Mr. Melson. I think there is a real shortage of explosives 
dogs, canines both over there as well as in the U.S. We are 
pushing out as many as we can through our canine center, which 
is in your district I believe, and trying to train more and 
more of them.
    We have a state of the art process for training them for 
odor detection of explosive devices. We are also training dogs 
down in Yuma for the military with respect to the same type of 
capability.
    Mr. Wolf. Roughly how many dogs?
    Mr. Melson. From ATF? I am not sure I know.
    Mr. Hoover. We've trained over 200 for the U.S. military.
    [The information follows:]

          Number of Bomb Sniffing Dogs in Iraq and Afghanistan

    ATF has deployed numerous Special Agent Canine Handlers and their 
Explosive Detection Canines to Iraq to assist with the detection of 
improvised explosives devices (IEDs). Since 2004, there have been 39 
ATF canine handlers deployed to Iraq and additional handlers are 
scheduled for rotation on an as-needed basis. In addition, ATF has 
entered into another Memorandum of Agreement with JIEDDO to imprint 
U.S. Marine Corps canines for homemade explosives. This training is 
conducted at Yuma, AZ, and to date, 206 canines have received the 
training. It is anticipated by the end of the calendar year, 352 
canines will receive the imprinting.

    Mr. Melson. I don't know that they have told us how many 
they could use if they had an unlimited number. We can 
certainly find that out for you and get back to you. But just 
like in the U.S., these dogs certainly protect our human 
capital.
    Mr. Wolf. Well let us talk about that. Thank you, Mr. 
Chairman.
    Mr. Culberson. No further questions, but thank you for your 
service to the country, and we appreciate all that you and your 
agents do, and in particular we really appreciate in Texas the 
work that you do of getting--we are grateful for your service. 
Thank you, sir.
    Mr. Melson. Thank you very much.

                          ATF'S ETRACE SYSTEM

    Mr. Mollohan. Just a follow-up question on the eTrace 
system. My information is that a manual search can take up to 
ten times longer than an electronic one. Does that sound right?
    Mr. Melson. Well, I think it is common sense that a manual 
search will take much longer than an electronic one.
    Mr. Mollohan. But ten times longer? I mean, you must have 
to go to file boxes.
    Mr. Melson. Well in essence what you are going to are the 
microfiche, and you may have a roll that has 4- or 500 firearms 
on it that you literally have to scroll through and look for a 
particular firearm.
    You should come out there with us. I was out there and I 
was absolutely appalled and depressed at what they are going 
through out there. You literally see pallets of these out of 
business records come in, and they are just absolutely 
overwhelmed. You see people in these cubicles going through the 
microfiche looking for these weapons.
    Mr. Mollohan. Well how does your budget address this 
problem?
    Mr. Melson. Right now we would be struggling severely to 
change that.

                 ATF/FBI EXPLOSIVES ENFORCEMENT EFFORTS

    Mr. Mollohan. Okay. I would like to hear you talk about 
jurisdictional overlap in explosives cases a little bit.
    It seems ATF and FBI have always been at a point where the 
jurisdictional lines have not been clear. I know you have 
undertaken efforts to address this, and in our 2009 CJS Bill we 
required the Department to review instances of overlap and to 
begin sorting through that. I assume you are not very far in 
sorting because we asked for a report, which is seven months 
overdue. So can you give us an update on that?
    Mr. Melson. Well as you know the IG came out with a report 
on that. The Deputy Attorney General's Office has formed 
several working groups between the FBI and ATF to look at 
various issues relating to the overlap of jurisdiction. Very 
soon the Deputy Attorney General is going to have a meeting 
with ATF and the FBI in his office to discuss these issues and 
a recommendation will be made from the deputy to the Attorney 
General on clarifying these issues of jurisdiction.
    We believe that ATF has the expertise in explosives issues. 
99.9-some percent of all the explosions by bombs in the United 
States are non-terrorism type of cases which we respond to now 
and have done it very successfully and professionally. We 
believe we can continue to do that and incorporate with our 
response individuals and representatives from the JTTFS, so if 
there happens to be a terrorism connection they can identify it 
quickly and take the case over.
    Mr. Mollohan. DOG's IG reviewed, as you point out, these 
jurisdictional problems last year. They had three areas of 
concern, the control of explosive investigations where it is 
unclear if there is a nexus to terrorism, the consolidation of 
multiple explosives or related data tracking systems, and the 
coordination of explosives training.
    So I guess we are looking for a time frame, a status 
report, on what steps are going to be taken to address and 
hopefully eliminate those conflicts. So can we expect a report 
on that soon as requested?
    Mr. Melson. I think that the Attorney General will resolve 
all those issues in the near future.
    Mr. Mollohan. He is going to resolve all of these 
conflicts, all of these issues? That will be welcomed. That 
would be historic.
    Mr. Melson. Well my understanding----
    Mr. Mollohan. I am sure when the agents go out there in the 
field after an explosion and start bumping into each other, 
they will be thrilled.
    Mr. Melson. Well they will be, and hopefully we won't be 
bumping into each other; there will be a coordinated response.
    Mr. Mollohan. That was probably----
    Mr. Melson. Yes, I understand that. My understanding is 
that the Deputy Attorney General is going to make a 
recommendation to the Attorney General within the foreseeable 
future which will address these issues that the IG raised.
    Mr. Mollohan. Okay. Well we look forward to working with 
you on those. I know it would be in everybody's best interest--
    Mr. Melson. It would absolutely.
    Mr. Mollohan [continuing]. To try to sort through those 
difficult issues.

                     EMERGENCY SUPPORT FUNCTION #13

    Your budget request includes a small amount of money to set 
up a dedicated staff in dealing with ATF's Emergency Support 
Function 13 responsibilities. What is your ability? You have 
never had a dedicated budget line item for this. Are you 
requesting a dedicated line item now?
    Mr. Melson. Yes, that is what our request is for. I think 
it is seven positions and some operating funds in order to do 
that.
    Mr. Mollohan. How is your ability to perform your required 
ESF 13 duties constrained by the lack of a dedicated budget?
    Mr. Melson. We are obviously having to take resources from 
other operational areas to sustain our ESF 13 responsibilities, 
which we take very seriously, because we understand that local 
communities are going to be relying on us to help them 
provide----
    Mr. Mollohan. Will your request preclude the necessity of 
your going to the other budget line items to support this 
function?
    Mr. Melson. Yes.
    Mr. Mollohan. Really?
    Mr. Melson. If we get this line item we will have seven 
personnel that are dedicated.
    Mr. Mollohan. At the requested level?
    Mr. Melson. Yes, at the requested level. We should be able 
to fulfill our function of training and preparedness for 
purposes of establishing the ESF.
    Mr. Mollohan. So this requested funding level will take 
care of all of your ESF 13 responsibilities? Or will it only 
establish and dedicate funding for a portion of them?
    Mr. Melson. It is hard to say we will never need anything 
more, because with this program----
    Mr. Mollohan. Would you like to answer that for the record?
    Mr. Melson. Yes, I will, thank you.
    [The information follows:]

                       Budget Request for ESF-13

    In addition to the $1.22 million budget request, ATF has forwarded 
another request seeking approximately $9.6 million. This amount will 
provide:
           $1.57 million for nine full-time employees to 
        satisfy critical personnel needs in the implementation and 
        responsibilities of ESF #13;
           $500,000 for operational travel expenses of ESF #13 
        personnel whose travel throughout the Nation is critical in the 
        preparation and planning for an effective Federal response;
           $300,000 for government-wide ESF #13 training, 
        education, and associated travel which is essential to the 
        overall success of the initiative;
           $3.75 million for the purchase of four command and 
        control vehicles to be strategically placed throughout the 
        country to provide centralized command platforms for responding 
        Federal law enforcement assets;
           $875,000 for computers and related software to equip 
        the currently non-automated ESF #13 National Coordination 
        Center with the proper mechanisms to effectively communicate 
        with responding personnel and other law enforcement partners;
           $500,000 for equipment for the currently unequipped 
        ESF #13 Assessment Team which affords essential first 
        responders the ability to remain self-sufficient and protected 
        for a period of time while affected areas are initially 
        recuperating;
           $1.95 million for 14 emergency management contractor 
        positions to be located in Washington, DC and within the FEMA 
        Regional cities to provide FEMA and State partners with the 
        everyday law enforcement guidance needed to prepare meaningful 
        policy; and
           $219,000 for ESF #13 National Coordination Center to 
        be positioned in Sterling, Virginia, for continuity of 
        operations assurance should an incident occur within the 
        National Capital Region.
    Because ATF has not received resources to support its 
responsibilities under ESF #13, existing staff are necessarily assigned 
ESF #13 responsibilities in addition to existing operational duties. 
This is limiting ATF's ability to consistently engage fully in required 
exercises regarding the planning for and the response to a natural 
disaster and/or act of terrorism.
    The increased request for resources will allow ATF to fill 
essential vacancies within the existing ESF #13 program and expand 
critical readiness efforts nationwide. These additions will maximize 
ATF's ability to immediately provide the American people with the 
caliber of law enforcement preparation expected from the Federal 
government in a time of crisis.

            RECOVERY ACT EXPENDITURES PER PROJECT GUNRUNNER

    Mr. Mollohan. Let me give you an opportunity for the record 
to respond to some of the IG's concerns about your Recovery Act 
expenditures.
    The IG contended that several of your Recovery Act funded 
offices are located in areas that have relatively little direct 
nexus to firearms trafficking activities of Mexican drug 
cartels. How do you respond to that criticism?
    Mr. Melson. We disagreed with the IG in that regard. When 
we placed our resources along the Southwest Border we concluded 
that New Mexico was part of the Southwest Border and that gun 
trafficking was going to be an issue in the Roswell, Las Cruces 
area itself.
    Since the recovery money has come, and even though we don't 
have all the people there yet because they are still going 
through the process of being hired, last year we had 38 cases 
involving illegal gun purchases. Four of them were tied to gun 
trafficking, and that is a funnel for one of the cartels to go 
through to Mexico.
    We thought that we ought to take a strategic approach. 
Instead of being reactive to where the problems were going to 
exist, we thought we would put individuals in places where we 
knew there was not only an existing problem, but will be a 
growing problem. Roswell and Las Cruces were two of those 
places where we are trying to be predictive in our efforts. And 
we have expressed our disagreement to the IG with respect to 
that.
    As I indicated before, the problem of gun trafficking is no 
longer right along the border, it is going to go into the 
interior, and we can't be complacent and just put resources 
there and forget about the rest of the country with respect to 
the source of these guns to Mexico.
    Mr. Mollohan. So with the funds you are requesting to 
annualize, you intend to continue supporting the plan that you 
have implemented and you will not be changing it in light of 
the IG's----
    Mr. Melson. No, sir, we are confident that our analysis is 
correct. It is beginning to come to fruition as we see the 
types of cases that they are developing there in our strategic 
analysis of not only the gun trafficking patterns, but the 
cartel trafficking patterns as well.
    Mr. Mollohan. The IG also raised a concern about being able 
to ensure that the GRIT personnel would be tasked solely with 
Mexican firearms trafficking enforcement cases. My first 
question is, is that your intention?
    Mr. Melson. Are you talking about the Gunrunner?
    Mr. Mollohan. Yes, I am.
    Mr. Melson. Okay. Yes, they are focused on the gun 
trafficking to Mexico.
    Mr. Mollohan. But that is your intention?
    Mr. Melson. Yes. Now, I was going to say, you have got to 
do the investigative ground work for one of these trafficking 
cases. So you may investigate straw purchasers who are 
collecting guns, but it may end up not being a ring or a group 
that necessarily is going to Mexico. We still have to prosecute 
that case. We can't tell necessarily at the beginning of an 
investigation that it is a trafficking case to Mexico; we have 
to investigate it. That type of information comes along during 
the investigation.
    We wouldn't want the IG or anybody to come back and say 
hey, this Gunrunner team investigated three domestic gun 
trafficking organizations. Well it just didn't turn out to be 
one that went to Mexico. But that is our intent, yes.
    Mr. Mollohan. The answer to the question is that it is the 
intent that the GRIT personnel be solely tasked with Mexican 
traffic cases. The IG's concern was that there aren't 
procedures in place to ensure that, and I just wanted to give 
you an opportunity to speak to that or the importance of it.
    Mr. Melson. Yes, sir. That is why we have supervisors in 
each of these offices which----
    Mr. Mollohan. The IG's contention is that there are no 
procedures in place, so the supervisors could on their own 
discretion assign them to other duties.
    Mr. Melson. Well, I guess that----
    Mr. Mollohan. I am not arguing with you, I am just giving 
you an opportunity to----
    Mr. Melson. I understand that. I think we----
    Mr. Mollohan. I am sure you went back and defended 
yourself.
    Mr. Melson. Yes. I think that we have sufficient control 
over our supervisors to have them do what we want them to do 
with respect to these resources and what our priorities are.
    Mr. Mollohan. Sure. Well, that is the IG, don't look at me.
    Mr. Melson. Oh, I know, I know.
    Mr. Mollohan. I am just giving you a chance to respond.
    Mr. Melson. I understand that.
    Mr. Culberson. Thank you, Mr. Chairman.
    Mr. Mollohan. Mr. Culberson.
    Mr. Culberson. I did get a question too, I am a member of 
the Houston Gun Collectors Association, and that the director 
of the show had--that is why I stepped out to visit with him, 
because I remember there was a controversy in the Austin gun 
show. The Thursday before the show the local ATF agent showed 
up and asked the director of the Austin Gun Club to transfer 
all--all the private sales had to go through license dealers. 
Is that a new policy at the ATF, or is that just something that 
he did locally for that one time?
    Mr. Melson. No. It is not a policy of ATF, and it has never 
been a policy of ATF to do that.
    As I understand the situation this was a contract dispute 
between the owner of the premise and the promoter of the gun 
show. The owner of the premise wanted to make sure that the 
guns were lawfully sold on his or her premise, and asked the 
local police for suggestions as how they could ensure that. We 
were invited to attend that meeting and gave them a list, as I 
understand it, of different things they could do to make sure 
that guns were lawfully sold.
    One of the suggestions, which is a common sense suggestion, 
is just have licensed FFLs there. And they made the decision as 
to what to do on their own after hearing from us.
    Mr. Culberson. Local police?
    Mr. Melson. No, the owner of the premise.
    Mr. Culberson. The owner of the facility. Okay.
    Mr. Melson. Who then said----
    Mr. Culberson. You can image the uproar that caused.
    Mr. Melson. Oh, I understand, but the owner made his or her 
own decision as to what to do.
    Mr. Culberson. Okay.
    Mr. Melson. And we discussed this very issue with the 
various industry organizations, including the organization that 
represents the gun show promoters at the shot show, and I think 
they understand that we did not suggest to them that that was 
the way it was going to be.
    Mr. Culberson. Okay. But beyond the commonsense 
restrictions that all of us are under, you know, if I wanted to 
sell a gun to my friend Mr. Wolf or Chairman Mollohan, there is 
no restriction on that other than--there is no restriction on 
private individuals selling guns to each other or at a show if 
I want to go rent a table and sell some guns other than the 
commonsense ones, don't sell it if you know the guy is a felon, 
and don't sell it to an illegal alien. Other than those 
restrictions there are no restrictions on the rights of 
individual Americans to rent a table at a gun show and just go 
sell it if it is a hobby type thing or personal.
    Mr. Melson. That is right, but having said that, the owner 
or the promoter has the absolute right to impose whatever 
restrictions they want to.
    Mr. Culberson. On the facility.
    Mr. Melson. On the facility.
    Mr. Culberson. Got it.
    Mr. Melson. Right. That is up to them completely.
    Mr. Culberson. Sure, yes, sir. And then the other question 
I got from the Houston Gun Collectors Association is how can a 
private individual--if a private individual is present, would a 
valid driver's license by somebody that wants to buy a gun, I 
rent a table at a show, a guy shows up, he has got a valid 
driver's license. Is that sufficient to protect the private 
seller from the probation against selling to an illegal alien? 
Because if you are presented with a driver's license, if you 
are just a private individual----
    Mr. Melson. May I have a second?
    Mr. Culberson. Sure.
    Mr. Melson. One of these lifelines.
    Mr. Culberson. Because that is a worry, you know, if you 
are just a private guy selling, you probably have individuals, 
Mr. Chairman, in your district that collect guns, have fun with 
them, and they will go rent a table at a show and go sell guns. 
God bless America.
    We are going to go vote here pretty quickly, but----
    Mr. Melson. Okay.
    Mr. Culberson. Is a driver's license sufficient?
    Mr. Melson. The test is reasonableness on the part of the 
seller, and if it is reasonable to rely on that driver's 
license, then yes.
    Mr. Culberson. That makes sense to me as an attorney. Thank 
you very much for your service and to all of your agents, we 
appreciate what you do. Thank you, Mr. Chairman.
    Mr. Mollohan. Which can only be answered in the context of 
each individual case.
    Mr. Melson. Yes.
    Mr. Mollohan. There'll be some questions for the record 
that I will certainly submit and perhaps other members of the 
Committee. I have a series of questions about tobacco 
diversion, trafficking, and how it pays off for increased 
enforcement.
    Thank you very much for your testimony here today, Mr. 
Melson.
    Mr. Melson. Thank you.
    Mr. Mollohan. And thank you for the excellent job all of 
your agents and other employees do in defense of the country. 
We appreciate the assistance of your individual employees in 
every instance. They do excellent work. Thank you.
    Mr. Melson. Thank you very much. Thank you, Mr. Culberson.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
                                          Thursday, March 18, 2010.

                BUREAU OF PRISONS FY2011 BUDGET OVERVIEW

                                WITNESS

HARLEY G. LAPPIN, DIRECTOR, BUREAU OF PRISONS

                            Opening Remarks

    Mr. Mollohan. Good morning. We are pleased to welcome Mr. 
Harley G. Lappin, the Director of the Federal Bureau of 
Prisons, who will be testifying today about the fiscal year 
2011 budget request for the Federal Prison System.
    Director Lappin, welcome, first of all.
    Mr. Lappin. It is good to be here.
    Mr. Mollohan. We appreciate your being here and appreciate 
your service and that of your fine organization.
    We talked quite a bit during our hearing last year about 
BOP's reentry programming and how that is related to recidivism 
and the growing federal prison population. And we will 
certainly be asking questions again today about your Second 
Chance Act and reentry activities and plans for the coming 
year.
    It has become very clear, however, that the Bureau of 
Prisons' ability to implement effective reentry programs has 
been hindered in recent years by a critical shortfall in the 
number of on-board correctional workers and by the inadequate 
capacity of the aging federal prison infrastructure. And these 
problems have in turn been the result of inadequate budget 
requests for the Bureau of Prisons.
    Over the last three years, the Subcommittee has provided 
significant additional resources above the proposed budget 
request to allow BOP to meet its basic operational requirements 
and begin addressing its staffing shortfall.
    For fiscal year 2008, we provided supplemental funding and 
approved a reprogramming when it became clear that BOP would 
otherwise run out of funding before the end of that fiscal 
year.
    For fiscal year 2009, the Subcommittee provided $160 
million above the budget request. For fiscal year 2010, we 
provided $106 million above the request.
    BOP's proposed budget for fiscal year 2011 appears to be an 
improvement over prior years, although I will be asking you 
about how realistic it really is.
    I am pleased to say that the Bureau of Prisons has made 
some important progress on the staffing front since our hearing 
last March, although there is still a lot more work apparently 
to be done.
    And there are still significant challenges ahead when it 
comes to acquiring or constructing new prison facilities and 
keeping up with the growing backlog of modernization and repair 
projects for BOP's aging facilities.
    We will be asking you this morning about these and other 
important challenges you face, including how you are addressing 
violence in the prisons, particularly assaults directed at 
prison staff, but also assaults by prisoner upon prisoner.
    Mr. Lappin, in a moment, I will ask you to briefly 
summarize your statement. Your written testimony, of course, 
will be made a part of the record.
    First, I am pleased to turn to our Ranking Member, Mr. 
Wolf, for any opening comments that he may like to make.
    Mr. Wolf.
    Mr. Wolf. Thank you, Mr. Chairman.
    And I want to welcome Mr. Lappin. Thank you and your people 
for the work you do. And with that, I look forward to hearing 
your testimony.
    Mr. Mollohan. Okay. Thank you.
    Mr. Lappin.

                           Opening Statement

    Mr. Lappin. Chairman Mollohan, Congressman Wolf, it is a 
pleasure to be back, and I certainly appreciate all of your 
support.
    And let me begin by thanking you for your strong support of 
Bureau of Prisons. I am particularly grateful, as you just 
mentioned, for the assistance with the additional funding 
included in the 2010 Consolidation Appropriations Act that 
allowed the Bureau of Prisons to continue basic operations and 
allowed us to increase on-board staffing. And I will talk a 
little bit more in detail about that in a moment.
    I assure you we will continue to exercise sound fiscal 
judgment and contain costs while maintaining the highest level 
of service that we possibly can.
    During fiscal year 2009, we achieved a net increase of 775 
employees from the beginning of the fiscal year. And through 
February of this year, we have added a net increase of 325 
additional staff to the total staff on board.
    We anticipate by the end of this fiscal year, we will add 
about 925 staff to the base, and that number is inclusive of 
the new activations.
    The continued professionalism and dedication of our staff 
has been critical to the Bureau's ability to operate safe and 
secure facilities, managing more inmates than our prisons were 
designed to house, and preparing inmates to transition back 
into their communities.
    Continuing increases in the inmate population pose 
substantial ongoing challenges for our agency, particularly at 
the medium- and high-security levels.
    In 2009, a net growth of 7,091 new inmates was realized and 
net growth with 7,000 inmates per year is projected for 2010 
and 2011.
    The continued increases challenge us in providing safe and 
secure institutions for staff, inmates, and surrounding 
communities.
    The President's 2011 budget request for the BOP is $6.534 
billion for the Salaries and Expense budget. That is nearly 
$450 million more than the 2010 enacted level.
    For the Buildings and Facilities budget, the request of 
$269.7 million is nearly $171 million more than the 2010 level.
    Our highest priorities continue to be: ensuring the safety 
of staff, inmates, and surrounding communities; increasing on-
board staffing at BOP correctional institutions; adding bed 
space; reducing the use of double and triple bunking, thus 
leading to lower violence and crowding in prisons; increasing 
the Federal Prison Industries work program, and other inmate 
reentry programs such as drug treatment and education, through 
an inmate skills development strategy that is consistent with 
the Second Chance Act and; finally, maintaining the existing 
institutions in an adequate state of repair to ensure safety.
    Resources are requested in the New Construction decision 
unit to acquire and modify the Thomson, Illinois Correctional 
Center, expanding high-security federal prison capacity, 
currently at 52 percent overcrowding. The Thomson facility 
would provide up to 1,600 new high-security cells.
    The number of Supermax or ADX beds available at Florence 
has not increased since the ADX Florence was activated in 1994, 
when the total inmate population was 95,000 inmates.
    Thus, in addition to housing general population and high-
security inmates at Thomson, we will also use this to house a 
number of administrative max-type inmates and other inmates who 
have proven difficult to manage, and inmates who are designated 
for special management units.
    Conditions of confinement of special management inmates are 
more restrictive than general population inmates and the 
Thomson facility provides the physical structures and security 
to appropriately house special management unit inmates at that 
location.
    Therefore, we are grateful for the Thomson opportunity but 
remain concerned as the inmate population far outpaces the bed 
space added.
    In the M&R Program, we continue to address our highest 
priority needs and work towards improving environmental and 
energy performance, within the constrained funding levels that 
exist in the M&R Program.
    As you know, it is imperative that we reduce crowding and 
to do so, one or more of the following must occur:
    One, reducing the length of time that some inmates spend in 
prison is an option.
    Two, expand inmate housing at existing facilities where it 
is conducive to do so. Add a housing unit if, in fact, it is 
not going to be overly expensive to expand the support areas, 
an assessment that we would have done.
    Contract with private prisons for additional bed space for 
low-security criminal aliens. That is number three.
    Four, significantly increase the number of inmates in 
community corrections, including home confinement.
    And, number five, acquire and/or construct and staff 
additional prisons.
    Thus, there are major safety issues as the population grows 
by thousands each year, but the capacity does not. In fact, 
there are no fully funded new construction projects to add any 
beds beyond 2013.
    And four or five thousand inmates will be absorbed each of 
those years into existing overcrowded and overutilized 
infrastructure.
    Chairman Mollohan, Congressman Wolf, again, we appreciate 
your ongoing support. This concludes my formal statement.
    I am encouraged that the 2011 President's request moves us 
a step further towards adequate staffing and bed space 
requirements to manage the increasing inmate population.
    I look forward to the questions you may have of me on any 
of these issues.
    [The information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
                      INMATE POPULATION INCREASES

    Mr. Mollohan. First of all, I would just like to see if I 
heard you right with some of your testimony, some of the facts 
here.
    In 2009, you took in 7,091 new inmates, is that----
    Mr. Lappin. Our last year's increase was 7,091 inmates to 
the base.
    Mr. Mollohan. Seven thousand ninety-one----
    Mr. Lappin. Seven thousand ninety-one to the base.
    Mr. Mollohan [continuing]. Inmates to the base?
    Mr. Lappin. We released----
    Mr. Mollohan. Is that a net increase?
    Mr. Lappin. Net increase, yes a net increase.
    Mr. Mollohan. A net increase of 7,000, so you took in a lot 
more than that.
    Mr. Lappin. Let me explain. We actually released a little 
over 60,000 inmates, but we admitted a little over 67,000 
inmates. Of the 60,000 inmates released, around 20 thousand, 
maybe a little less, were deported and a little more than 40 
thousand were transferred or reentered communities in our 
country.
    Mr. Mollohan. And you are going to have the same experience 
in 2010?
    Mr. Lappin. We believe we will add another 7,000 to the 
base this year, yes, and in 2011.
    Mr. Mollohan. And in 2011? So that is 14,000 added to the 
base during the next two years?
    Mr. Lappin. And just a little background, one of our two 
drivers right now is immigration. We actually received about 
fifteen, sixteen hundred more inmates last year than we 
expected.
    We have seen a 45-percent increase in immigration the last 
two years. That is 8,000 inmates with immigration convictions. 
Their sentences are slightly shorter in nature, so we do not 
have them as long, but it is still 8,000 inmates.
    The other area is a small uptick in drugs and firearms. But 
even a small increase for, say, fifteen hundred to two thousand 
inmates has substantial impact because their average sentence 
is 80 months.
    So if you add 1,500 inmates in drugs or firearms, they are 
staying with you for 80 months. That is one prison full for 80 
months.
    Mr. Mollohan. Well, what does the trend line look like past 
2011?
    Mr. Lappin. What we do is monitor indictments. We are 
continuing to see a dramatic increase in indictments in 
immigration. Again, we are seeing a slight increase of 1,500 to 
1,700 indictments increase in drugs and firearms.
    Mr. Mollohan. So you extrapolate out of that a certain 
increase?
    Mr. Lappin. A certain percentage of those will end up being 
convicted----
    Mr. Mollohan. Okay. So what----
    Mr. Lappin [continuing]. Based on historical----
    Mr. Mollohan. Yeah. What is the bottom line?
    Mr. Lappin. We are going to see an increase in both drugs 
and firearms and immigration----
    Mr. Mollohan. Into the foreseeable future?
    Mr. Lappin [continuing]. For the first--in the next couple 
of years, yes.
    Mr. Mollohan. But I am asking for a number associated 
with----
    Mr. Lappin. I will have to get you the number rather than 
me guessing. I will give you what our projections are.
    [The information follows:]

    Future Population Projections for FY 2011, FY 2012, and FY 2013

    The BOP's inmate population is projected to increase by a net 7,000 
inmates per year for FY 2010 and FY 2011. For FY 2012 and 2013, the 
inmate population is projected to grow by an additional 4,500 inmates 
per year. The distribution of current population offenses are as 
follows: Drugs 52 percent; Weapon offenses 15 percent; Immigration Law 
violations 11 percent; violent offenses 8 percent; Fraud 5 percent; 
Property Crimes 4 percent; Sex offenses 4 percent; and other 
miscellaneous offenses 1 percent. BOP does not project offenses by 
category for future years; however, the BOP does not anticipate 
significant changes in the inmate population distribution by offense 
category for FY 2010 through FY 2013.

    Mr. Mollohan [continuing]. Your trend line projection past 
2011. You gave it to 2011.
    Mr. Lappin. Yeah. I think we go out three years, so we can 
give it to you up to three years. So it will be 2011, 2012, and 
2013 when our projections----
    Mr. Mollohan. But just here for this testimony and not 
holding you to the number----
    Mr. Lappin. Sure.
    Mr. Mollohan [continuing]. Does the trend line look the 
same as what you have described for 2009, 2010, and 2011?
    Mr. Lappin. Yes.
    Mr. Mollohan. Out to----
    Mr. Lappin. What we do in the out years, though, this is 
just our conservative approach----
    Mr. Mollohan. Yeah.
    Mr. Lappin [continuing]. It is more difficult to predict 
beyond three years, so what we typically do in the out years is 
reduce that projected increase from the prior three years----
    Mr. Mollohan. You say conservative. Does that mean you are 
conservative to make sure you hit the number and if you are a 
little above, that is conservative, or are you conservative on 
the low side?
    Mr. Lappin. We are conservative on the low side, so----
    Mr. Mollohan. Why would you be conservative on the low 
side?
    Mr. Lappin. In lieu of us asking for and building more beds 
than what we might need. We realize----
    Mr. Mollohan. That seems like a slim prospect----
    Mr. Lappin. That is true. And it has been.
    Mr. Mollohan [continuing]. Given this kind of----
    Mr. Lappin. And it may be that we need to step back, 
although I have to say the GAO report, that study that was done 
just recently was very complimentary of our population 
projections, only a one-percent difference in what we projected 
and what we actually received.
    Mr. Mollohan. Yeah.
    Mr. Lappin. So we have adhered to that.
    Mr. Mollohan. Okay. But----
    Mr. Lappin. For example, we have got 7,000 in 2011, 4,500 
in 2012. 4,500, I am sorry, 4,500 in 2013. So in the out years, 
2013, 2014, we projected about 4,500.
    As we get closer, we would adjust those up or down based on 
the indictment information we are receiving because that is a 
better predictor the closer you get to the three-year window. 
So right now our projections are 7,000 in 2011, 4,500 in 2012, 
and 4,500 in 2013.
    Mr. Mollohan. And thereafter about 4,500?
    Mr. Lappin. Thereafter.
    Mr. Mollohan. But that is really just a placeholder almost?
    Mr. Lappin. That is a placeholder. As you get closer, you 
begin to see the indictments coming in.
    Mr. Mollohan. Yeah.
    Mr. Lappin. Then you can make an adjustment----
    Mr. Mollohan. Yeah.
    Mr. Lappin [continuing]. Up or down based on the number of 
indictments.
    Mr. Mollohan. I see. So----
    Mr. Lappin. Does that make sense?
    Mr. Mollohan. Yes, it makes sense. Of course it does. It is 
your testimony.
    Mr. Lappin. Thank you.

                                CROWDING

    Mr. Mollohan. Well, I mean, I want to get into these 
questions, but, you know, anybody's reaction to that would be 
how in the world, where in the world are you going to put these 
people.
    Mr. Lappin. Well----
    Mr. Mollohan. I mean, Thomson uses 1,600 beds and, you 
know, a prison here and a prison there, and you are going 
around the country buying a lot of prisons.
    Mr. Lappin. You want me to respond to that?
    Mr. Mollohan. Sure.
    Mr. Lappin. Okay. Obviously we have got four prisons being 
built. McDowell and Mendota are being activated. And, in 
essence, in our opinion, they are filled.
    Mr. Mollohan. Okay.
    Mr. Lappin. So next up obviously is Berlin and if we were 
to acquire Thomson. Now, Thomson has 1,600 cells. We would 
double bunk some of that. So if we had the entire prison, we 
are going to get more inmates in there----
    Mr. Mollohan. I see.
    Mr. Lappin [continuing]. Than we do in our normally 
constructed prisons. So it is a little larger.
    Mr. Mollohan. Yeah. So you might get 3,200?
    Mr. Lappin. I am not going to go that high, but we could be 
in the 2,200, 2,300 range.
    Mr. Mollohan. That still is far short of the net increase 
you are going to----
    Mr. Lappin. And then beyond that, we have Yazoo City, 
Hazelton, and Aliceville. So that is everything that we are 
building. And without a doubt, each of the years those come on 
line, it is not going to be enough beds to accommodate the 
number of inmates coming in----
    Mr. Mollohan. Yeah.
    Mr. Lappin [continuing]. If we hit the 7,000, 7,000, 4,500. 
So we already started identifying and informing wardens where 
we are going to add more beds at existing locations.
    Mr. Mollohan. Which means more crowding?
    Mr. Lappin. More triple bunking. I mean, that is where we 
are at. There are very few single celled, single bunked rooms. 
They are reserved for only those inmates that we cannot house 
someone else with.
    Mr. Mollohan. Okay.
    Mr. Lappin. So we are going to increase triple bunking is 
what is going to happen.
    Mr. Mollohan. Okay. We will get into that in more detail a 
little bit later.
    Mr. Lappin. Okay.

                     GAO REVIEW OF BOP'S BUDGETING

    Mr. Mollohan. Let me talk to you about budget formulation 
process. The explanation statement accompanying the fiscal year 
2009 bill directed the Government Accountability Office to 
review BOP's budgeting methods, including the accuracy of its 
estimates for utility and medical care costs and the accuracy 
of its estimates in the growth of the inmate population.
    GAO provided that report to the Committee late last summer 
and made it publicly available last November.
    I note first that GAO found the Bureau of Prisons' basic 
budgeting processes to be sound, which is not quite the same 
thing as saying that the budget requests submitted to Congress 
have been sound or adequate. We understand that there is a give 
and take process that you go through with the Department and 
with the OMB and that BOP has frequently come out on the short 
end of that.
    The Government Accountability Office's major recommendation 
was that you carry out an uncertainty analysis for each budget 
request you submit to the Department and to OMB. Such analysis 
would quantify the risk that would be incurred by cutting the 
budget request below the amount requested by BOP's budget 
formulation process. And by risk here, I mean the risk that 
actual operating expenses would exceed the budget request.
    How has BOP responded to the GAO recommendation?
    Mr. Lappin. Well, we are very pleased with their evaluation 
of our budget preparation process and the cost estimation. They 
were very complimentary. We appreciate that. And I applaud my 
staff who do a great job at that every year.
    Without a doubt, you are correct. There is ongoing debate 
between the Department and OMB about what the right number is. 
We appreciate the recommendations to conduct uncertainty 
analysis.
    We are in the process of working with a company who is 
helping us do that, so it is a statistical analysis that 
provides a variety of scenarios as to the likelihood----
    Mr. Mollohan. So you are developing a capability to be----
    Mr. Lappin. We are doing that.
    Mr. Mollohan [continuing]. Responsive to that----
    Mr. Lappin. Yes.
    Mr. Mollohan [continuing]. Recommendation?
    Mr. Lappin. Yes, we are.
    Mr. Mollohan. So what is the status of that?
    Mr. Lappin. We are talking with a company. We are going to 
hire a company who has experience doing this. So it is a matter 
of us getting them on board and a contract and then working 
with our research staff to develop an approach to doing this. 
But I am hopeful in the next year we will be----
    Mr. Mollohan. Will you be able to apply that analysis to 
the 2011 request post----
    Mr. Lappin. Probably 2012.
    Mr. Mollohan [continuing]. Post request?
    Mr. Lappin. We could certainly go back and look at it----
    Mr. Mollohan. Yeah.
    Mr. Lappin [continuing]. And see how it compares.
    Mr. Mollohan. That would certainly be interesting.
    Mr. Lappin. Yeah, it would be. But I think the actual use 
of it is more likely 2012.
    Mr. Mollohan. For your budgeting process?
    Mr. Lappin. Yes.
    Mr. Mollohan. Will you do that and will you make the 
results of that available----
    Mr. Lappin. Yes.
    Mr. Mollohan [continuing]. To the Committee? You answered 
yes before I asked the question, see, so then I cannot commit 
you, I cannot hold you to answering the questions. Would you 
make it available to the Committee?
    Mr. Lappin. The results of our analysis?
    Mr. Mollohan. Yes.
    Mr. Lappin. Yes.
    Mr. Mollohan. As applied to the 2011 request?
    Mr. Lappin. Right.

                             FY 2011 BUDGET

    Mr. Mollohan. Is the Administration's fiscal year 2011 
budget proposal for BOP less than BOP's estimate for its 
operating needs?
    Mr. Lappin. I think it----
    Mr. Mollohan. In other words, where are the----
    Mr. Lappin [continuing]. S&E.
    Mr. Mollohan. Where are the holes?
    Mr. Lappin. I think without a doubt, construction and M&R 
funding is hard to come by. And so I am not sure that we 
received what we asked for in M&R and New Construction.
    But the S&E side, we are satisfied with. And we can meet 
our basic needs and hire more staff if we receive what has been 
proposed in the 2011 President's budget.
    Mr. Mollohan. Okay. But now let me just make sure I asked 
that question so you understood. Is the Administration's fiscal 
year 2011 budget proposal for the Bureau of Prisons less than 
the Bureau of Prisons' estimate for its operating needs?
    Mr. Lappin. I do not believe it is. I do not believe it is 
less.
    Mr. Mollohan. Okay. If the answer is different, you will 
submit it for the record?
    Mr. Lappin. Yes.
    Mr. Mollohan. And if there are holes in the budget 
request----
    Mr. Lappin. The two areas that we are----
    Mr. Mollohan [continuing]. Where are they and how big are 
they?
    Mr. Lappin. Yeah. I mean, obviously based on my opening 
statement, we are requesting additional funding to build or 
acquire additional bed space. We have been asking for 
additional funding for maintenance and repair. And so those are 
the two areas that concern us the most, the ability to acquire 
more beds and the ability to repair our existing 
infrastructure, so those are the two areas that continue to be 
of concern.
    Mr. Mollohan. The GAO report also recommended that the 
Bureau of Prisons do a better job of documenting the 
information that supports its budget estimates.
    Have you----
    Mr. Lappin. Yes.
    Mr. Mollohan [continuing]. Instituted any new policies in 
response to that recommendation?
    Mr. Lappin. Yes. We are working on some ways of better 
documenting what our calculations are based on, trying to make 
the whole process more transparent so that more information is 
understood as to how we go about coming up with the amount of 
money we are requesting. So we agree with that recommendation 
as well and we are putting in place some processes to 
accomplish it.

                                STAFFING

    Mr. Mollohan. Okay. Let us discuss staffing levels here for 
just a moment. During our hearing last year, you estimated that 
the Bureau of Prisons needed at least an additional 3,000 
correctional workers to meet its staffing needs.
    At the time, you were not sure if you would be able to 
achieve any net staffing increase in fiscal year 2009. So I was 
pleased to see your testimony indicate that BOP actually hired 
755----
    Mr. Lappin. Uh-huh.
    Mr. Mollohan [continuing]. 775 new staff by the end of the 
last fiscal year. In the fiscal year 2010 Appropriations Act, 
we provided $106.4 million above the budget request, including 
$98.2 million to allow you to annualize the cost of those new 
workers for fiscal year 2009, and to make significant progress 
in hiring additional correctional workers in the current year.
    What is the total number of on-board staff you anticipate 
reaching by the end of the fiscal year?
    Mr. Lappin. We anticipate increasing----
    Mr. Mollohan. Where is that chart?
    Mr. Lappin [continuing]. Between 900 and 1,000 this fiscal 
year, so around 925 this fiscal year added to the base and some 
activations. So we added 775 last year to the base. We are 
going to add nine, nine-fifty this year to the base and 
activations. And if we get the President's request, we will add 
around 2,000 next year.
    But let me help separate those numbers. Our goal was adding 
3,000 to the base excluding new activations. We believe if we 
get the President's request that by the end of next fiscal year 
at a minimum, we will have filled 2,600 of the 3,000 positions 
we intended to, we wanted to fill to the base excluding the new 
activations. So we are doing well.
    Again, as I said last year, I am not sure that the 3,000 
ultimately will be enough. Obviously that need grows. If 
crowding continues to increase, we will have to reassess. But 
as far as what we committed to, adding 3,000 to the base, we 
are going to be at a minimum, we believe, at about 2,600 filled 
by the end of 2011.
    Mr. Mollohan. Twenty-six hundred?
    Mr. Lappin. Twenty-six hundred of those 3,000. We may get 
closer to that 3,000, but right now we believe we are going to 
get pretty close around 2,600 of the 3,000 that we wanted to 
fill. That excludes the activations.
    So, if you add those activations in there, you are going to 
be up probably close to 4,000 because you have got Thomson, 
Berlin, and then there were some inmate coordinator positions 
and a few other things.
    Mr. Mollohan. The 3,000 you are talking about is to be 
added to the base----
    Mr. Lappin. The base.
    Mr. Mollohan [continuing]. Not including activations?
    Mr. Lappin. Correct.
    Mr. Mollohan. What percentage would that bring you up to if 
you actually hit that?
    Mr. Lappin. Between 91 and 92 percent of authorized 
positions. So in 2008, we were at 86 percent. And we if are 
able to accomplish this by the end of 2011, we should be 
between 91 and 92 percent.
    Mr. Mollohan. What percent of your authorized level would 
you like to be at, a hundred? No. Realistically what would it 
be----
    Mr. Lappin. Realistically.
    Mr. Mollohan [continuing]. 97, 98?
    Mr. Lappin. We were performing quite well when we were 
filling 95 percent to 96. I mean, you realize we will never get 
to a hundred because there is just too much turnover, people 
retiring.
    Mr. Mollohan. Yeah. And that is why I backed off of a 
hundred.
    Mr. Lappin. So years ago, when we were at 95, 96 percent, 
we were functioning quite well. We knew this was a big request 
to get that amount. That is why we suggested we do this 
incrementally and we picked the 3,000 target. That is what we 
are working towards.
    When we finish that, we will step back and reassess 
assaults on staff and inmates, waiting lists for drug 
treatment, GED--those indicators we look at to see are we 
accomplishing the work we want to accomplish.
    Mr. Mollohan. That is where you come up with your 
authorized numbers, going through that drill?
    Mr. Lappin. Well, if the 3,000 has had the----
    Mr. Mollohan. You will make an assessment?
    Mr. Lappin. We will make an assessment.
    Mr. Mollohan. Okay.
    Mr. Lappin. And if, in fact, we have not reduced those 
waiting lists, if we have not reduced----
    Mr. Mollohan. Then you will go back to----
    Mr. Lappin [continuing]. Then we will go back, then we will 
come back and we will make another run of some additional----
    Mr. Mollohan. And that would impact your authorized level, 
right? I mean, you come up with your----
    Mr. Lappin. Yes.
    Mr. Mollohan [continuing]. Authorized level?
    Mr. Lappin. Correct. What we would request would impact our 
authorized----
    Mr. Mollohan. Yeah. You would readjust what we need----
    Mr. Lappin. Correct. That is correct.
    Mr. Mollohan [continuing]. And what you need by your own 
judgment becomes your authorized level, so we are measuring 
against----
    Mr. Lappin. Correct.
    Mr. Mollohan [continuing]. What you, in essence, say you 
need?
    Mr. Lappin. Correct.
    Mr. Mollohan. Has OMB provided input on that exercise?
    Mr. Lappin. Well, obviously they have a lot of input into--
--
    Mr. Mollohan. No. My question is, do they provide input on 
your exercise of coming up with the number that you need? We 
know they impact your----
    Mr. Lappin. We come up with our number.
    Mr. Mollohan. You come up with your authorized number?
    Mr. Lappin. We come up with our number in our budget 
development process.
    Mr. Mollohan. All right. You come up with it. Are they part 
of the process of your coming up with it, OMB?
    Mr. Lappin. There is some budget direction given every 
year.
    Mr. Mollohan. No, no.
    Mr. Lappin. Before we begin to develop a budget----
    Mr. Mollohan. When you come up with your authorized number, 
which is the number you want, does OMB push back on the number, 
because that is a base upon which you work? That is your 
justification for your budget request. And I am just asking, do 
they push back or do they allow you to come up with your 
authorized number and then just let you fund it at 91 percent 
or 92 percent or whatever?
    Mr. Lappin. Every year, there is some direction given at 
the beginning of the budget process by OMB.
    Mr. Mollohan. With regard to your authorized number?
    Mr. Lappin. Correct.
    Mr. Mollohan. Well, that is interesting. Those are two 
different processes, I would think. I think it would be fair 
for you to come up with what you need. You are the 
professionals. I mean, they are great, smart people. And then 
if they say we just do not have enough money, so you are going 
to have to operate at 92 percent of your authorized level, that 
is one thing. But for them to impact your authorized level as 
you compute it based upon your need-- and tell me how I am 
wrong here.
    Mr. Lappin. There is obviously----
    Mr. Mollohan. No, no. There is push and I just want to know 
if they impact the process of your coming up with your 
authorized number of employees?
    Mr. Lappin. Yes.
    Mr. Mollohan. They do? And so they push back and say, no, 
you do not need that number of employees, is that----
    Mr. Lappin. I am not sure exactly what type of----
    Mr. Mollohan [continuing]. The push back you get?
    Mr. Lappin. Push back occurs----
    Mr. Mollohan. Okay.
    Mr. Lappin [continuing]. Or if there is that much. You 
know, it may be we are in agreement based on our----
    Mr. Mollohan. Well, it may be and it may not be. But I just 
want to understand. So they impact it at two levels, number 
one, your authorized level, which we look at that and we say--
we assume here in good faith, oh, gee, your authorized level.
    I mean, if I did not know a little bit more about it, I 
would think the authorized level was in the authorizing bill. 
But you come up with that based upon your need. And so if they 
are impacting that number, then that impacts your percentage.
    And so we look at 92 percent and say, gee, you are 
operating at 92 percent and, you know, you need to get to 95. 
But if they push down on your authorizing level, then it has 
less meaning. Anyway, okay.
    When discounting staff positions at newly activating 
prisons, is the number of authorized correctional worker 
positions at your existing institutions going down, going up, 
or staying level?
    Mr. Lappin. Could you say that again?
    Mr. Mollohan. Yes, sir. When discounting staff positions at 
newly activated prisons, taking that out, and I guess looking 
at your base----
    Mr. Lappin. Yeah.
    Mr. Mollohan [continuing]. Is the number of authorized 
correctional worker positions at your existing institutions 
going down, going up, or staying level?
    Mr. Lappin. The number of staff at those locations is 
increasing. There is no change in positions. There are X number 
of positions that are authorized at a location.
    The issue is how many of those can you afford to fund and 
fill. That number is increasing. It increased last year. It 
will increase this year. It will increase next year if we get 
the President's requested budget. So those 3,000 positions are 
being filled and funded in existing facilities.
    So their base, the number of employees they have on board 
is increasing to the tune of 3,000, if we fill those 3,000, to 
the tune of 3,000 new employees to the base. So we are adding 
correctional staff. That has been our focus up to this point.
    Now we are looking at other support areas that were 
negatively impacted in years past, drug treatment, education. 
My sense is that if we are successful in filling those 3,000 
positions that virtually all departments at an institution will 
reap some benefit, that is more staff than they had before, 
with the exception, we are going to be very conservative in 
filling administrative support areas, like financial 
management. They may get some depending on their situation.
    But our primary focus is on positions that have direct 
contact with inmates. That number is increasing. It did last 
year. It will this year and it will next year if we get the 
President's request.
    Mr. Mollohan. In the process of determining authorized 
positions based on your need, when you look at that institution 
by institution, these considerations you are now talking about 
determine what your institution develops for the need and for 
the authorized level; is that correct?
    Mr. Lappin. What we have done is every location has 
developed a staffing plan, here is where we would like to be 
based on our concerns over areas that are not performing as 
well, where we just need more resources.
    Mr. Mollohan. At that institution?
    Mr. Lappin. At that location. And so when the money is 
distributed--. I will be honest with you, in the last year or 
so, our direction to the wardens has been we want you to fill 
correctional officer positions because we could see that we 
were, rather what was happening, because we did not have enough 
correctional officers, is that we were taking staff out of 
other departments to work in correctional services.
    So say here I am a drug treatment specialist or a nurse. We 
would take those people out and make them work in correctional 
services. We do not want to do that.
    Mr. Mollohan. Yeah. But my----
    Mr. Lappin. So we focused on correctional officers.
    Mr. Mollohan [continuing]. My question has to do with 
developing the authorized level, developing the need level. And 
so on an institution by institution basis when you say how many 
people do you need here----
    Mr. Lappin. Yes.
    Mr. Mollohan [continuing]. They do an assessment of that, 
you know, a particular number of authorized correctional 
officers at a particular institution? You determine at an 
institution how many correctional officers you need?
    Mr. Lappin. That is done locally.
    Mr. Mollohan. It is done locally. And then that is passed 
up and you add that all up? It is a sum of those estimates----
    Mr. Lappin. Well, it is not really.
    Mr. Mollohan. For your----
    Mr. Lappin. They get some feedback. So we give them 
feedback asking them why do you think you need this many or why 
aren't you asking for more. And we can do that, in part because 
we have so many institutions today that are almost virtually 
exactly alike in design----
    Mr. Mollohan. Yeah.
    Mr. Lappin [continuing]. And types of----
    Mr. Mollohan. Older institutions will be a different 
number, but the same number----
    Mr. Lappin. That is correct. But a lot of these newer 
places are very similar in design with very similar inmates. So 
when you get this request from one that wants 50 more people 
than another--
    Mr. Mollohan. Right.
    Mr. Lappin [continuing]. And they are alike, we go back and 
say, well, how come they can do it with 50 less, so----
    Mr. Mollohan. How frequently do you go through that 
exercise for correctional officers?
    Mr. Lappin. Well, here recently for correctional officers, 
we have done it much more frequently than we did in the past. 
So we have been doing it probably annually in the recent past 
for correctional officers.
    Mr. Mollohan. Like in the last two, three years----
    Mr. Lappin. Yes.
    Mr. Mollohan [continuing]. You have gone through that 
assessment coming up with a current authorized----
    Mr. Lappin. Correct.
    Mr. Mollohan [continuing]. Number? Okay. What is the 
process for determining the authorized number of correctional 
workers associated with inmate programs such as drug abuse 
treatment or vocational training?
    Mr. Lappin. Drug abuse is probably the simplest of all the 
program areas because we have got a ratio of treatment 
specialists to participants of about one per twenty-five. So 
that is much simpler to determine. The other ones----
    Mr. Mollohan. An optimal ratio?
    Mr. Lappin. That is correct, of one to twenty-five.
    Mr. Mollohan. That is what you would like to have?
    Mr. Lappin. That is what we would like to have.
    Mr. Mollohan. So----
    Mr. Lappin. Actually, that is what we adhere to. Very 
seldom do we slip. We might slip by a couple, three.
    Mr. Mollohan. Well, why do you have waiting lists in that 
program then?
    Mr. Lappin. Because we just have not been able to hire 
enough of them. We did not have enough funding in drug 
treatment to hire more of them.
    Mr. Mollohan. To get to that one to twenty-five ratio?
    Mr. Lappin. And that is why there is a waiting list.
    Mr. Mollohan. But your authorized number is based upon a 
one to twenty-five ratio in that program?
    Mr. Lappin. And that is why you have got a waiting list 
because we will not increase that ratio to absorb those extra 
inmates.
    Mr. Mollohan. Okay.
    Mr. Lappin. Okay. So we are going to adhere to the one to 
twenty-five, in that range, not exactly, but pretty close, and 
that is why you have got a waiting list, because you have got X 
number of treatment specialists and more participants than you 
have to adhere to that one to twenty-five.
    Mr. Mollohan. For us that like simple ways of understanding 
this, that is a great one. And we will remember that we can ask 
you the ratio on----
    Mr. Lappin. Drug treatment. That is an easy one.
    Mr. Mollohan [continuing]. Drug treatment programs. It has 
got to be one to twenty-five and if you are not meeting it, it 
is not adequate?
    Mr. Lappin. Well, now, the other program area is a little 
more difficult, education and vocational training, because we 
provide that function in a combination of ways. At some 
locations, it is Bureau employees and at others, it is 
contract. And at some, it is a combination of both depending on 
what is available in the community. So it is a little harder to 
assess.
    Mr. Mollohan. I have gone too long. I am going to pick up 
on that.
    Mr. Lappin. Okay.
    Mr. Mollohan. Mr. Wolf.
    Mr. Wolf. Thank you, Mr. Chairman.
    And I think the Bureau of Prisons is fortunate to have Mr. 
Mollohan.

                    U.S. BUDGET AND STATE AND LOCAL

    With regard to funding, I think your testimony, there were 
so many questions, I was just sitting here, you are going to 
get to a point now, though, that not criticism of this 
Administration or the last, but of both in some respects.
    The nation is fundamentally broke. We are broke. If we 
could not print money, we would be in Bankruptcy Court. And if 
you look at the numbers in 2020, about a trillion dollars goes 
out every year for interest on the debt. And we are borrowing 
from China and Saudi Arabia. Saudi Arabia funded the process 
that led to the Afghan issue.
    We are borrowing money so we can build Thomson or we are 
borrowing money from the--I mean, so we are reaching a point 
and, of course, there is not the lobby, if you will, or the 
support for prisoners that there is for, you know, something 
else. I think we are coming to a point, and you probably will 
not be there, but we are coming to a point where it is really 
going to be just very bad in the country.
    I want to ask the questions, though, that I have, but if 
you compare this where you are in the federal level, is it the 
same problems at the state and local level?

                   STATE AND LOCAL PRISON POPULATIONS

    Mr. Lappin. Well, they are having their own difficulties. 
But I do not know if you saw it yesterday or today, the Pew 
report is coming out.
    Mr. Wolf. I did not see it.
    Mr. Lappin. And it will be a good report to look at. It is 
the first time in 38 years that the population of state 
corrections agency has declined.
    Mr. Wolf. And that is because like in Michigan, they are 
facing a situation they just let them go. California is 
fundamentally broke, so they are just physically letting them 
go.
    Mr. Lappin. Well, there are a variety of things that are 
occurring. But you are right. They have----
    Mr. Wolf. They have the same problem, but they are treating 
it differently. You are not going to let a guy go. But in 
Michigan, and I am not being critical----
    Mr. Lappin. Right.
    Mr. Wolf [continuing]. We have had before the Committee or 
the Chairman had some very good testimony of what they are 
doing. But their solution to the problem is opening the door 
and having fewer people in.
    Mr. Lappin. They have diversion programs, increasing good 
time, more reliance on parole, so on and so forth.
    Mr. Wolf. So we are now unfortunately number one in the 
world of percentage per capita of prisoners in the United 
States. Versus these other countries, we are number one.
    Mr. Lappin. Yes.
    Mr. Wolf. That is not very good.
    Mr. Lappin. No, it is not. I agree. It is a tragedy.

                       FEDERAL PRISON INDUSTRIES

    Mr. Wolf. And also because of the lack of support you had 
from the Democratic party and the Republican party, members of 
both sides, you literally have no prison industries program 
left for all practical purpose. It was ready to go. It was 
almost going to be like a historical time.
    But 15 years ago, how many people did you have in the 
prisons working in the prison industries--both numbers and 
percentage-wise and what do you have today and what do you 
expect it to be next year?
    Mr. Lappin. Well----
    Mr. Wolf. Show me how----
    Mr. Lappin [continuing]. Congressman Wolf, I am not going 
to concede yet that we have lost prison industries.
    Mr. Wolf. No. But I strongly support it. I think the 
Chairman does, but this Congress does not. And the Chamber of 
Commerce does not and you go on and on and on and on. But tell 
me how many are in the program and where is it going?
    Mr. Lappin. Eleven percent.
    Mr. Wolf. And what was it 15 years ago?
    Mr. Lappin. Probably close to 25 percent.
    Mr. Wolf. Twenty-five percent?
    Mr. Lappin. Close to 25 percent.
    Mr. Wolf. Then doesn't that impact on recidivism?
    Mr. Lappin. It does. Yes, it does. There are fewer inmates 
learning work skills that they lack and then returning to our 
communities. They continue to struggle too, when they find a 
job. keeping that job. Because they do not get up on time, they 
do not understand how to develop a relationship with their 
boss, and work through conflict.
    So without a doubt, the fewer inmates that participate in 
work programs, we are going to see an increase, we believe, in 
recidivism because of their inability to either acquire or keep 
a job once they have it.
    So, it is tragic that this is occurring. But we have more 
support than some may think. I think there are a lot of people 
in the Congress out there who see the other side. I know that 
there has been a lot of----
    Mr. Wolf. If they do not vote with you----
    Mr. Lappin. Well, I think some----
    Mr. Wolf [continuing]. Do they send you a little message 
that we really agree with you, but we are not going to do 
anything about it? Is that----
    Mr. Lappin. Well, we had a hearing a year or so ago, 
Congressman, the House Judiciary had a hearing on prison 
industries.
    Mr. Wolf. Okay. Bobby Scott.
    Mr. Lappin. Bobby Scott.
    Mr. Wolf. Bobby Scott supports it.
    Mr. Lappin. But there were Democrats and Republicans at 
that hearing.
    Mr. Wolf. But nothing has happened. I----
    Mr. Lappin. You are correct.
    Mr. Wolf. I have had a bill in for years which the previous 
Administration opposed, this Administration opposes it, and the 
Congress to have a program whereby we would get products, and I 
am not going to take the time, where they are no longer made in 
the United States, almost a repatriation of the industry, 
television sets, if you will, and manufacturing. Lorton was 
ready to do something and people on both sides of the aisle 
opposed it, the unions opposed it, everyone opposed it. But 
this would not have been competition with any American 
industry.
    Mr. Lappin. We understand.
    Mr. Wolf. It would have been to create new industry and 
then the truck drivers dropping off the wire would have been 
American employees and a person who--I mean, but we could not 
get that passed.
    Mr. Lappin. We are working on it. We continue to work on 
it. And the Administration is working with us on that. So, I do 
not want you to feel as though there is no hope here. This 
Administration, as did the prior Administration supported it. 
Obviously they did not think it was the time to move forward, 
but we continue to advocate for legislation that would help us 
do some of the things you had suggested.
    Mr. Wolf. Do you expect it to pass in this Congress?
    Mr. Lappin. I have no idea.
    Mr. Wolf. Probably not.

                            COUNTERTERRORISM

    Let me ask you. Congress identified 14.2 million in fiscal 
year 2010 for your counterterrorism unit. This office 
coordinates procedures and information related to the growing 
terrorist prisoner population. This has been funded out of the 
supplemental bills in the past.
    Is the staff unit operating at full strength this year and 
does your fiscal year 2011 request continue full funding?
    Mr. Lappin. The unit is in operation.
    Mr. Wolf. How many people?
    Mr. Lappin. I will have to get exactly how many people are 
there, but it is staffed and it is funded to be staffed in 
2011. My guess is we have actually put more resources in there 
than the 14 million provided because we know how important this 
issue is. So, we have gone even beyond the staffing of this 
unit. We have created communication management units.
    [This information follows:]

           Number of Employees in BOP's Counterterrorism Unit

    The BOP Counterterrorism unit currently has 24 staff members.

    As you recall, you were angry at us because inmates were 
inappropriately communicating with people in other countries. 
We have put in procedures and processes to stop that, minimize 
the likelihood that would occur, and we have more staff on the 
Joint Terrorism Task Forces.
    On a day-to-day basis, we are monitoring mail, phones, and 
visits of inmates who fall into this category where we are 
concerned about what they are going to say to someone outside 
of the Agency, outside of the Bureau of Prisons, that might be 
detrimental to the safety of the United States.
    So, we have more translation services. We have more staff 
monitoring what they are doing day in and day out. And we, I 
believe, have been quite successful at limiting the ability of 
those people to act out in that manner.
    Now, the Department has helped us with the Special 
Administrative Measures that are imposed on people, as well as 
the units that we have created to properly manage and control 
their communications. So, it is up and running and it is 
staffed, and we will continue to staff it.

                         PRISON RADICALIZATION

    Mr. Wolf. A significant concern with terrorist inmates is 
the potential for radicalizing other inmates. Have you seen any 
evidence of this in the federal prisons and what measures do 
you have at your disposal to prevent this from happening?
    And as an afterthought, though, I saw Senate Foreign 
Relations Committee report saying that there are a number of 
people who have been radicalized in American prisons who have 
left and gone to Yemen. And I do not know. It did not say.
    But what are you seeing and what is the status of that?
    Mr. Lappin. Number one, we are not seeing that happen on a 
wide scale. But without a doubt, every single day, there is a 
risk that could happen between the interaction of two inmates.
    So, what we have done is we have classified these inmates 
and identified those who are, one, a greater risk for 
advocating for that type of behavior, that they would be out to 
radicalizing, or those that are susceptible to being 
radicalized to some degree. We are managing them and 
controlling them in more restrictive housing, in the 
communication management units, or if need be at ADX Florence.
    So, through the classification process, we control 
communications. If there is someone in our general population 
that is acting out in this manner, we immediately move--we 
identify them. We counsel them. We stop that behavior or we 
will move them to one of these more restrictive units.
    So, our staff know how important this issue is. If they 
identify an inmate radicalizing, to be quite honest with you, 
there is a lot of different types of radicalization, but on 
different topics, not just terrorism, but radicalizing inmates 
to participate in gang-oriented behavior, we want to discourage 
that as well.
    So, we do our best to pull those leaders out and manage 
them in more controlled environments. That is being 
accomplished at ADX Florence, at SMUs, as well as our 
communication management units, more restrictive, controlled 
conditions, more oversight of their mail, phone, and visits so 
that we can better control that behavior.

                                 GANGS

    Mr. Wolf. You have indicated that one out of every four 
inmates in high-security institutions are gang affiliated.
    Number one, is this an increase in previous experience? 
What do you think is driving this increasing gang affiliation 
and what are the implications of a prolific gang affiliation 
for managing your high-security institutions? How serious is 
it?
    Mr. Lappin. This is a serious problem. We are seeing an 
increase in the number of inmates with gang associations or 
that want to be part of gangs. The increase is in part because 
of the type of people that are being indicted and prosecuted 
and sent to federal prison, more serious drug offenders, more 
firearms offenses, more cases that identify and prosecute and 
convict people who have those associations. That is one.
    Number two, the influx of non-U.S. citizens, especially 
from Mexico, so the percentage of Mexican gangs--I mean, this 
whole issue you see occurring in Mexico, well, some of those 
people are in the United States illegally. They get convicted 
in Federal Court and they end up in our prisons.
    So, we have seen an increase in the number of inmates with 
ties to Mexican gangs and organizations who, of course, do not 
get along very well with Mexican American gangs, let alone the 
white gangs and black gangs. So, we have had to put many more 
resources into identifying and managing the gangs. And we do 
that by trying to distribute them more equitably across our 
institutions. This is a growing concern which is complicated by 
more crowding and more of these inmates in larger groups in 
individual institutions.
    Mr. Wolf. How is the problem comparable in the state 
prisons?
    Mr. Lappin. Similar problems, especially along the borders 
and the larger systems, you know, California, Texas. Those 
large systems as well are incarcerating more gang-related 
offenders.
    Mr. Wolf. So is the prison population generally today 
compared to, say, 1965 or 1975 more violent?
    Mr. Lappin. Ours is, yes.
    We have seen a 50-percent increase in the number of 
offenders who have violent backgrounds in our custody, a 50-
percent increase. That drives more gang-oriented offenders. So 
those things are driving the increase in these gangs and gang 
members and the associations that they establish in prison.

                     NON-RETURNABLE CRIMINAL ALIENS

    Mr. Wolf. Whatever happened, and this is not gang, but you 
just triggered a thought, there were a number of prisoners that 
were in federal prisons because the country that they came from 
would not take them back. Cuba----
    Mr. Lappin. Correct.
    Mr. Wolf [continuing]. Does not take back. Vietnam does not 
take back. How many of those today prisoners are people who are 
in prison today because the country of origin will not take 
them back? What countries are the prominent countries who will 
not take back?
    Mr. Lappin. I do not have that number. We can get it for 
you. My guess is the number is smaller than it once was.
    [The information follows:]

              Non-Returnable Criminal Aliens Housed by BOP

    The Bureau of Immigration and Customs Enforcement (ICE) typically 
removes detainees upon expiration of their sentence and does not leave 
them with BOP. The exception to this is that there are a total of six 
Mariel Cuban detaines remaining who have been housed in the BOP many 
years, and they are reviewed annually by ICE for releasability. These 
are the only ``long-term'' detainees housed by BOP for ICE, as a result 
of the long-term detention issue addressed by the Supreme Court in 
2005, which effectively eliminated long-term detention.

    Mr. Wolf. Give me a couple you do know.
    Mr. Lappin. Well, obviously we cannot get people back to 
Cuba. There are some east Asian countries. But I will provide 
you the list.
    Mr. Wolf. Plus----
    Mr. Lappin. Plus the number of people we have in our 
custody.
    Mr. Wolf. What happens if you have a violent criminal from 
Cuba or from Vietnam and the prison sentence was 15 years, the 
15 years is up, it is the beginning of the 16th year, what 
happens to them?
    Mr. Lappin. Well, technically they have finished their 
federal sentence, but they have a detainer from BICE precluding 
them from being released in our country. And one of two things 
happen. We either transfer them to Bureau of Immigration and 
Customs Enforcement and they house them and deport them or--I 
do not know what happens to them once they leave us. Or they 
ask us to house them, and we house them until they get turned 
over to the Bureau of Immigration and Customs Enforcement.
    Mr. Wolf. And can you tell us how many?
    Mr. Lappin. We will get the number of how many of those 
that we have. I can tell you we have got 55,000 non-U.S. 
citizens in our custody. How many of them fall into this 
category of not being deportable is what I do not know and we 
will find that number.
    Mr. Wolf. Somehow the Administration, and, again, the 
previous Administration did this, but there has to be some 
candid conversation with some of these countries. Some of these 
countries we help in many different ways. We gave MFN to 
Vietnam. They are persecuting the Catholic Church, persecuting 
Buddhists and our Ambassador never speaks up for that, yet they 
will not take some of these people back.
    I think there is almost a disconnect there. If they are not 
going to take the people back and they are going to put the 
burden on us, there ought to be some repercussions with regard 
to the country.
    Mr. Lappin. I do not disagree with you, but you are really 
asking a question that I would not have the answer for. We 
would have to go to the Bureau of Immigration and Customs 
Enforcement who has really a larger role in that responsibility 
of getting them returned.
    We basically hold detainees for them. We turn detainees 
over to them once they have room for them and they say we want 
them back.

                   PRISON RAPE ELIMINATION ACT (PREA)

    Mr. Wolf. Okay. As you know, this Subcommittee has led the 
effort, and it was Senator Kennedy's bill and Bobby Scott's 
bill and my bill, for the elimination of prison rape.
    On Tuesday, I spoke to the Attorney General about my belief 
that the Department must act quickly to implement the standards 
recommended by the Commission.
    I know the Bureau of Prisons was not excited about our 
bill. I know a lot of state people are not excited about our 
bill. The Bureau of Prisons and corrections are responsible for 
assisting state and local systems on prevention, investigation, 
and punishment.
    Can you describe some of the training and services you are 
providing and does your request for fiscal year 2011 include 
additional funding to carry out these responsibilities to make 
sure, and I have talked to the people who have been in federal 
prisons, who have been raped, and so what training do you do 
and how much funding do you have for that allocation?
    Mr. Lappin. Well, let me begin by saying that reducing 
assault on inmates of any kind is a high priority for all of 
us. And when I say all of us, I am going to qualify that.
    I meet annually with the other Directors of Corrections and 
they all, virtually all of them agree that reducing assault of 
any type, sexual, physical, verbal, is a high priority for all 
of us.
    So, I do not necessarily agree with your opinion that we do 
not agree with the Act that was passed.
    Mr. Wolf. I talked to people who have been in prison and I 
have also talked to some of the associations that deal with 
this issue and they tell me there have been cases where prison 
staff have threatened people to put them into a certain prison 
with a certain person almost as a form of intimidation.
    Secondly, I have talked to prisoners who have told me that 
they went through this terrible thing and there were staff 
members and others that knew what was going on and never really 
raised it.
    And we have also talked with people, several women who went 
through this in the Federal Bureau of Prisons.
    You have prisoners who have been assaulted by some of your 
federal people, correct?
    Mr. Lappin. Without a doubt, we have. And without a doubt, 
it does occur and it should not occur and we want it to end.
    And given that, we agree with legislation to assist us in 
precluding that from occurring. And we have been working with 
the Commission, the PREA Commission. We are now working with 
the Attorney General in his responsibilities.
    To be honest with you, I applaud the approach the Attorney 
General is taking to a thoughtful assessment of what should be 
done because at the end of the day, what we want to have happen 
is we want regulations passed that actually can be implemented. 
Those that people not only can afford to implement, but they 
make sense to implement. So, I am confident that ultimately 
that will happen.
    Mr. Wolf. Most of the Commission members who know a lot 
about this do not agree with you.
    Mr. Lappin. Well, I am sorry to hear that. There are many 
of the recommendations they have made, however, Congressman, 
that we do agree with.
    Mr. Wolf. But the Attorney General is dragging his heels on 
this and the Attorney General could say if there are different 
recommendations, some are so you agree and everybody else 
agrees, implement them now. There are some that, you know, you 
could almost phase this in.
    But to put it off for another year, maybe even a year and a 
half, we have talked to people that are involved in this, they 
think it may be 2012.
    Have you ever read this, No Escape?
    Mr. Lappin. No, I have not.
    Mr. Wolf. I will give you a copy.
    Mr. Lappin. Thank you, and let me tell you what we are 
doing. That was the last part of your--what are we doing to 
limit the opportunity for this to occur in our prisons.
    I will send you a copy of our program statement that 
outlines what staff's responsibility is and what inmates' 
responsibility is, applicable to an allegation of sexual 
assault. And it will lay out for you exactly what occurs.
    [The information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    We train our employees every single year on that specific 
program statement. We train inmates. We go over the program 
statement with the inmates. So they know what their obligation 
is.
    We have increased training for our investigative staff, for 
our leadership staff, so that when they become aware of an 
allegation, that they know what to do and how to go about doing 
it.
    When an allegation is made, oftentimes it is a crime and we 
treat it as a crime.
    Mr. Wolf. Are allegations up or down?
    Mr. Lappin. Allegations coming from anywhere, from outside?
    Mr. Wolf. Are the numbers, the overall numbers up or down?
    Mr. Lappin. Well, our numbers are relatively low. And to be 
honest with you, look at the research that the Office of 
Justice Programs has done. Their research, which I think is 
exceptional research, reflects that the numbers are not very 
high to begin with.
    Mr. Wolf. They are low, but are they up or down?
    Mr. Lappin. Our numbers are probably about where they have 
been. You know, it is a very low number. We will get the 
numbers over the last four or five years.
    For example, last year, we had three sustained misconducts 
of inmate on inmate sexual, inappropriate sexual misconduct. 
And that is broad--that is everything from verbal abuse to 
actually a physical assault. So, we had three sustained.
    We will get you the numbers for the last few years, but the 
numbers are low. We do not see that increasing in the Bureau of 
Prisons. I cannot say that is true elsewhere.
    [The information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Wolf. What about at the state level?
    Mr. Lappin. We will have to rely on OJP's research and we 
can provide a copy of that to see what is happening there.
    In many states, I think they are similar to us. You are 
going to see this happening on occasion. The number is 
typically low. Some variation in increase and decrease, but 
overall, the numbers have been low with the exception, as you 
probably read, in juvenile facilities where there was more of 
an increase in that evaluation.
    [The information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Wolf. You are aware the report came out?
    Mr. Lappin. It did. But, again, this has been----
    Mr. Wolf. Why do you think there was an increase there?
    Mr. Lappin. I am not familiar enough with the situation.
    Mr. Wolf. The Attorney General ought to read that too.
    Mr. Lappin. We are on a working committee. We look at all 
those documents and work with the Attorney General's staff on 
what is available.
    Mr. Wolf. Well do you agree that the longer it takes to 
implement this the greater the opportunity and the greater 
chance this will continue?
    Mr. Lappin. I can say that many states have already done 
some of the things we have done. So, I think just the passage 
of the law has resulted in more attention.
    And let me mention, I am going to pat the National 
Institute of Corrections on the back. They have done great work 
developing training programs, CDs, videos, materials that have 
been sent out to all the states, all the jails, to provide them 
a process by which they can better educate staff and inmates 
about PREA.
    Mr. Wolf. Okay, last question. Do you believe that once the 
regulations come out it will have the impact in decreasing the 
number of prison rapes?
    Mr. Lappin. We are certainly hopeful.
    Mr. Wolf. Okay. So if we are hopeful the earlier they come 
out the better.
    Mr. Lappin. We are hopeful, absolutely.

                    FEDERAL PRISON INDUSTRIES (FPI)

    Mr. Wolf. Your testimony indicates that on the 11 percent 
of your work eligible inmate population is able to participate. 
How does that compare? And you answered that with regard to the 
previous. Do you compare it to the 25 percent or is that your 
high point?
    Mr. Lappin. My guess is if you go back further when the 
Bureau of Prisons was much smaller it was probably even larger, 
probably 35 percent, but the Bureau of Prisons at the time may 
have only had 26,000 inmates.
    Mr. Wolf. At that time did everyone that wanted to work 
could work?
    Mr. Lappin. I can't say whether or not they had waiting 
lists or not, I don't know.
    Mr. Wolf. As a result of this you have had to close 
factories and lay off staff the last year. Is that accurate?
    Mr. Lappin. That is correct.
    Mr. Wolf. How many factories closed last year?
    Mr. Lappin. We closed upwards of eight factories, we 
eliminated 105 positions, staff positions, and about 1400 
inmate jobs.
    Mr. Wolf. And will there be further closures this year 
based on the budget?
    Mr. Lappin. It is not really based on the budget, it is 
non-appropriated.
    Mr. Wolf. Well it is based on the law.
    Mr. Lappin. It is actually based on our loss of money in 
prison industries. I think there is a possibility we are going 
to see more closures or more downsizing.

                           RE-ENTRY PROGRAMS

    Mr. Wolf. Let me ask you this other question before I go 
back. The reentry and faith based. The fiscal year 2010 bill 
included a major investment in prison reentry programs. I know 
we also included a language in the fiscal year 2010 bill 
directing you to get an independent panel to make 
recommendations for options for the development of prison 
reentry programs, including the options related to the role of 
faith based community programs.
    Can you bring us up to date on your actions so far to carry 
out this language and share with us some of your ideas on how 
this might be able to help and contribute to the development of 
a more effective reentry program? And the language as you know 
called for a report within 120 days.
    Mr. Lappin. We have convened the panel, they met last 
Monday. The panel of experts included Dr. Ed LaTessa out of the 
University of Cincinnati, Dr. Roger Jarjoura out of Indiana 
University and Purdue University, and Steve McFarland, now with 
World Vision, previously with Prison Fellowship, Nancy Merrit 
out of National Institute of Justice was invited, but was 
unable to attend.
    They met for the day. They met with all of our reentry 
quote ``inmate skills development, second chance related 
staff,'' both prison industries and drug treatment, our core 
staff who are involved in the inmate skills development process 
to look at what we were doing, the direction that we were 
going. They provided a number of recommendations, and we will 
be drafting a report that identifies their recommendations and 
how we are going to address those recommendations on our 
process.
    I am happy to say that with the funding we have gotten the 
last year we are much further along than I anticipated in the 
requirements applicable to Second Chance Act, in the 
implementation of the inmate skill development program that was 
advocated for in that Act. So, more inmates are getting into 
that process.
    Let me just tell you where we are at now. We are now 
inventorying all of the programs in the Bureau of Prisons to 
identify where we have holes. Where do we have institutions 
that lack programs that address skill needs, and what is it we 
need to do to fill those holes? So, that is a huge initiative 
at 115 locations, but that is where we are at in the process. 
But I am encouraged by the progress that is being made by 
direct involvement in this program not only with the staff who 
oversee it, but actually applying it to the inmates that they 
have responsibility for managing.
    Mr. Wolf. And do you think faith based is an important part 
of that?
    Mr. Lappin. Sure, it is. It is a part of it. Absolutely.
    Mr. Wolf. Would it make sense to you if you could actually 
find a panel not over to the right nor the left just, you know, 
a panel made up of people like Mark Earley and people like that 
to really take an in-depth look at the prison system? Kind of a 
blue ribbon panel. I always am careful about offering this 
because then you are going to get some guy that wants to do 
this, you are going to get some that go so far off. But I mean, 
are there five people or ten? Would it make sense to give the 
whole prison system kind of a look at, a blue ribbon panel that 
started out not with any preconceived notions, but just would 
really go with truth and integrity and to really look at it?
    Mr. Lappin. For the same reason you hesitate, I hesitate as 
well, and am a bit reluctant to say this is what we need to do. 
We have a lot of oversight out there, as you well know, and you 
are right, I am not sure that you can really identify folks who 
would approach it as you would like them and we would like them 
to approach it. So, I am hesitant to say yes, this is the right 
thing to do.
    Mr. Wolf. The last question. Who do you think is the most 
knowledgeable person in the country that doesn't have a 
political agenda, that he or she is not going to be----
    Mr. Lappin. Influenced.
    Mr. Wolf. Yeah.
    Mr. Lappin. Let me give it some thought. I will come up 
with a name or two and reach out to you.
    Mr. Wolf. Thank you very much.
    Mr. Lappin. You are quite welcome.
    Mr. Mollohan. Mr. Fattah.
    Mr. Fattah. Thank you, Mr. Chairman. Let me thank you for 
your long service. You have been in this position since 2003?
    Mr. Lappin. Yes, sir.

                           INMATE PER CAPITA

    Mr. Fattah. So you are not a political appointee of any 
kind, you are just serving the public's need to administer the 
prison system.
    I got a few questions. You got over 200,000 inmates. The 
cost per inmate across the system is?
    Mr. Lappin. Cost per day per inmate?
    Mr. Fattah. Per inmate on annual basis.
    Mr. Lappin. On annual basis. It is around 25 thousand. 
Actually it is, with everything, I am talking about every 
single penny, $27,000 a year. That is including administrative 
staff, staff in the field, all the training programs, $27,000 
per year.

                           NON-U.S. CITIZENS

    Mr. Fattah. Okay. Now and you said 53,000 are not American 
citizens?
    Mr. Lappin. Well 54,899 non-U.S. citizens.

                             LIFE SENTENCES

    Mr. Fattah. Okay. Now can you tell the Committee what 
percentage of across the board, obviously probably the American 
citizens, but you know, as best as you can tell in terms of the 
population, how many of them are lifers? How many of them are 
going to be with you for the duration, absent some of the 
judicial intervention?
    Mr. Lappin. A small percentage. Most inmates are going to 
ultimately be released.
    Mr. Fattah. Right.
    Mr. Lappin. I don't have that with me.
    Mr. Fattah. Okay.
    Mr. Lappin. But a small percentage are in our prisons for 
the rest of their life. Now some of them do it on the 
installment plan.
    Mr. Fattah. Right. They may make multiple----
    Mr. Lappin. That's correct. But when you look at the entire 
210,000 it's a small percentage.
    Mr. Fattah. But would you guess it is one percent or is 
it----
    Mr. Lappin. I don't really want to guess. It is something 
we can get for you. Two or three percent.
    [The information follows:]

        Percentage of Inmate Population Identified as ``Lifers''

    There are a total of 6,058 inmates (about 3 percent) in BOP custody 
with life sentences.

    Mr. Fattah. Yeah, two or three percent. So even though you 
run these prisons and the society is safe, you know, and people 
are put away, the real secret here is that the vast majority of 
them are going to come back to our communities.
    Mr. Lappin. You are absolutely correct.

                         FUTURE PRISON CHANGES

    Mr. Fattah. Now, I know you're responsibility is to 
incarcerate them and you do have a number of programs to try to 
improve their life circumstances, you know, so that when they 
return or reenter communities that they may not be involved in 
further anti-social or illegal activity, and you know, we have 
passed the Second Chance Act which I was involved with and 
cosponsored, and I know there are a number of efforts there.
    What I am interested in is given the fact that you have 
been doing this for a while and that the country has been doing 
it for a much longer while, in fact we incarcerate more people 
in our country per capita than any other country in the world, 
where are we headed down the road?
    I mean, in terms of kind of enlightened--I know we have 
been doing a lot of research and evidence based analysis. So if 
you were sitting here in front of this Committee ten years from 
now is the system that we have essentially going to be the 
system that we have now or are we learning things that are 
going to change the way our country deals with people who 
commit crimes and who need to be punished or that society needs 
to be protected from on a temporary basis? Are we going to do 
anything differently and the research and all of the experience 
we have had informing any great changes in our prison system?
    Mr. Lappin. I hope there are changes. I will be honest with 
you, I don't think we are doing a good enough job. One, we 
think, we believe a major part of our responsibility is 
preparing that offender for release.
    Mr. Fattah. Right.
    Mr. Lappin. Not just providing a safe environment for them 
to live in and for our staff to work in, and to protect the 
public, a major part of our responsibility is to try to improve 
the skills and abilities of that inmate in making that 
transition to the community.
    Mr. Fattah. Uh-huh.
    Mr. Lappin. I think that there has got to be some 
strategies to reevaluate whether this individual needs to be in 
prison. Is that the most appropriate way to address what they 
did? I am hopeful that we will continue to see a debate on 
alternative methods to correcting their behavior for some 
people.
    I believe we have got some people in prison that could be 
handled differently than going to prison. However, there are 
many, many people in our prisons who belong in prison because 
they have hurt people.
    Mr. Fattah. Uh-huh.
    Mr. Lappin. Once, twice, two or three times. They victimize 
people, and they obviously need to have time out to protect the 
public in an effort to change that culture, that attitude, that 
approach. Without a doubt we are more successful with some in 
prison than others.
    Right off the bat, speaking as a former warden within a few 
weeks of an inmate being in a prison you know if you have got a 
willing participant or an unwilling participant. That is the 
key to determining how successful we are going to be--his 
participation. I don't see that changing.
    Here's our biggest concern. My biggest concern is the day 
they walk out of prison. A society that is resistant and 
discriminates against people who have been incarcerated. Just 
plain and simple.
    Mr. Fattah. Uh-huh.
    Mr. Lappin. It is a shame, I can understand why that 
occurs. I don't know how we overcome that. And it goes right 
down to our ability--as simple as this--we believe that 
transition from prison to community--that a community-based 
transition is important whether it is home confinement or 
halfway houses.
    In this past year you can't imagine the number of locations 
we have tried to place halfway houses. It's absolutely not 
working. So, what does that mean for that offender? That means 
on one day we are going to give him $50 and a set of clothes, 
put him on a bus, and we are going to drop him off on the 
street corner. Very, very unwise. Unsafe. In lieu of us 
transferring him to a halfway house that is in the community, 
but has supervision of that person, and overseeing some of that 
during the transition. It is in part because of this resistance 
in our society to accept these people back. Literally people 
calling me saying, ``we don't want them back Director, don't 
send them here.'' These are Governors, these are Congressmen 
and Senators, these are other community leaders. That has got 
to change.
    Mr. Fattah. So if we incarcerate more people per capita 
than any other country and we have a couple hundred thousand in 
your system, and 97 plus percent of them are going to be 
released to, you know, Pennsylvania, which I represent, or West 
Virginia, or California, they are all at some point going to 
reenter society, and some you are going to have some success 
with, some you are not going to have a lot of success with, and 
we basically as best as I can tell, I mean there have been some 
tweaks here and there, but basically our prison system is 
pretty much the way it has been.
    Mr. Lappin. With some changes.
    Mr. Fattah. Right. You know the question is, you know, as 
the country looks forward, you know, like how we might rethink 
what we are doing.
    So part of it is maybe diverting some people from the 
system whose crimes, even though they are crimes, could be 
addressed in a different way. So we are probably talking non-
violent, you know, crimes.
    Mr. Lappin. Some type of intervention, right?
    Mr. Fattah. Some kind of intervention. And you have some 
very dangerous people that we need to be protected from and you 
need to keep, right?

              CLASSIFICATION/SEGREGATING GROUPS OF INMATES

    So I want to ask a couple of other questions on this note. 
You know, there has been some controversy in some of the state 
prisons about maybe segregating groups of people who don't know 
how to get along with one to another, and you have referenced 
some of the ethnic or racial groupings in the prisons, but I am 
going to ask you a different question, but it is along the same 
line.
    Is there any utility in trying to separate out or segregate 
some who are going to be with you for the duration or those who 
are the most violent from those? And I co-sponsored the bill 
that Ranking Member Wolf was talking about, but I am not just 
talking about that issue, but just kind of separating the kind 
of groupings of these inmates in ways in which we don't have 
youthful, non-violent, going to be released back home soon, 
incarcerated with people who are lifetime criminals who are 
very violent.
    Because one of the things we have seen in the studies is 
that the more youthful an offender goes in the longer they stay 
and their crimes become more and more violent over time. That 
is that they are kind of almost going away to college, expect 
they are learning all the wrong things, and then you say kind 
of go in under the installment plan. And the problem is not 
only are they on an installment plan, the community gets 
victimized more and more and more as they kind of go up this 
escalator of criminal activity.
    Mr. Lappin. Two comments on your previous discussion. So 
you have these facts--over 600,000 inmates a year are released 
into our communities, state and federal, 600,000 people every 
year being released from state prisons and federal prisons 
going back into your communities. I think it is a huge issue 
and one that we have got to address more adequately than we 
have.
    Our success rate, we are seeing a 40 percent recidivism 
rate in the federal system. So, six out of ten we are seeing 
success with, we are not seeing them come back to prison.
    You are right, it is better than we are seeing in the 
states, and I am not being critical of the states, there are 
some very challenging issues out there, but we are seeing 
success with about six out of ten not coming back to prison.
    Your question about the day-to-day management and this 
concern over the young folks with the more violent people. 
Years and years ago credible correction systems created 
classification systems. That was a key addition to successful 
prison operations, to begin to predict those types of behavior 
based on their history, based on their violence and their 
background, if any, based on a number of factors. Before they 
even come to prison, we have an idea of what type of prisons 
they should be housed in. Minimum, low, medium, or high 
security with different conditions of confinement at each 
level, driven by the behavior, the characteristics of that 
individual inmate. So, that helps us separate those who prey on 
other inmates from those who tend to be preyed upon. It is not 
perfect, because it is a paper process.
    The key is the administration of that by our staff. And as 
they look at that inmate and look at what the classification 
suggests, is it in fact consistent with what we actually 
observe and see? And that is where the day-to-day work of our 
staff in the institution begins--observing behavior, seeing 
compliance or non-compliance, addressing inappropriate 
behavior. Through a valid discipline program, you begin to 
separate those who prey on other inmates and who are violent to 
the point that they can't be housed with others.
    That is why you have got the ADX Florence, that is why we 
need space at Thomson, because that group of inmates, here in 
the recent past has grown without a doubt.
    In our population of 210,000 at one time the 500 beds at 
Florence handled those inmates, and that is no longer the case 
today. There is a larger group of these more violent people who 
cannot be out in that general population of a facility with you 
being successful in running it safely and securely.
    What are we going to do? We are going to remove them and we 
are going to manage them in those more controlled, more 
structured environment. So, that is kind of the extreme.
    Mr. Fattah. Let me just ask you one last question.
    Mr. Lappin. But let me answer one issue. Your issue of--is 
there people that can't get along. Let me tell you what our 
expectation is. If you are following the rules and you are able 
to follow the rules to a point that you can stay in a general 
population. We do not want to segregate people by race or gang. 
We expect you, we set the expectation you are going to get 
along with these people. Because they are going to return to 
our community. What's our expectation in the community? That 
you are going to learn to get along with others, understanding 
the differences among cultures and ages and beliefs, you are 
going to get along with those people. So, we believe it is our 
responsibility to teach them; to get them to understand this is 
part of life.
    Without a doubt we have got this group that resists, and 
that is this group you see going to ADX Florence and the 
special management units, because they don't get it. They don't 
care, they are mean nasty people, and we need to manage them 
that way.

                                VETERANS

    Mr. Fattah. Veterans. What percentage of the inmates are 
U.S. veterans?
    Mr. Lappin. I wish I could tell you that. I am going to be 
able to give you an estimate. I don't have it here.
    [The information follows:]

     Estimate of the Percent of BOP Inmates That Are U.S. Veterans

    The Bureau of Justice Statistics has reported in past studies that 
an estimated 10 percent of the federal incarcerated population is 
veterans (please see http://bjs.ojp.usdoj.gov/content/pub/press/
vsfp04pr.cfm).
    This information would have been noted in the inmate's individual 
Central File. However, the BOP is currently implementing a 
comprehensive system to track inmate skills and reentry needs and once 
fully implemented this system will also contain veteran status.

    Mr. Fattah. Okay.
    Mr. Lappin. Once we get inmate skills completely 
implemented we are going to be able to tell you how many 
veterans. I can tell you this, it is a tragic number, it is a 
high number unfortunately, and it is unfortunate. And just so 
you know, we have been working with the Parole Commission and 
the Department of Defense and the Veterans' Association, 
looking at some places that started these veteran courts, to 
try to intervene before the vets get back in our communities 
and get involved in the criminal justice system. No different 
than the mental health courts. I think there is some real 
potential there.
    But it is a tragedy that these people have served our 
country, and now we end up with them incarcerated, and we have 
not reached out quicker. And so I am encouraged that the VA and 
the Department of Defense also see this as a concern and we are 
working with them on some of those issues.
    Mr. Fattah. If you could keep the Committee informed.
    Mr. Lappin. Sure.
    Mr. Fattah. I have a lot of interest. I know the Chairman 
and the Ranking Member would also have interest in that.

                           INCARCERATED WOMEN

    And the last point, last question. Woman, female. There has 
been a major increase at the state level. In fact, I mean a 
huge growing number of women incarcerated. Is that the case at 
the federal level?
    Mr. Lappin. It was for a brief period of time, and I am 
just looking here for my number. I think we are about 14 
percent. I'm sorry, 13,663, or 6.5 percent of the inmates are 
female. We had a spike here a year or two ago, but that leveled 
off. So, we have not seen a substantial change over the last 
few years as far as incarcerated women.

                      PRISON POPULATION INCREASES

    Mr. Fattah. And I'm sorry, Mr. Chairman, one other quick 
question. The state prison numbers have dropped last year, 
yours went up.
    Mr. Lappin. Yes.
    Mr. Fattah. You don't decide who gets incarcerated or not. 
But I assume in part it is because we have like in 
Philadelphia, and Ranking Member Wolf was chairman when he 
helped with this, we got a lot of federal involvement in some 
of your drug problems and there were a lot of federal 
prosecutions for gun crimes and so on. Is that just because 
there is more action at the federal level trying to intervene 
on some of these issues?
    Mr. Lappin. Significantly more. You have got a combination 
of things going on. And this just didn't happen this last year. 
What's happened over the last 30 years is we federalized more 
crimes that had traditionally been state crimes--drugs, 
firearms, sex offenders.
    Mr. Fattah. Well speaking for Philadelphia, we were happy 
with the help.
    Mr. Lappin. Well there are a lot of states very happy with 
it.
    Mr. Fattah. Ranking member who was chairman at the time got 
the DEA, the FBI, all of the agencies to sit down and come in 
and provide some help.
    Mr. Lappin. Your point is right on target. All these task 
forces out there that as long as they had a federal component--
--
    Mr. Fattah. We want more of them.
    Mr. Lappin. That's correct. So what's that going to mean?
    Mr. Fattah. That doesn't help you though.
    Mr. Lappin. It doesn't help us. That means our BOP 
populations are going to continue to grow because of the 
federalization of crimes, as well as task forces and other 
initiatives at the local level, that drive more people into 
federal court rather than state court.
    Mr. Fattah. Thank you, Mr. Chairman.

                    FEDERAL PRISON INDUSTRIES (FPI)

    Mr. Mollohan. Thank you. A couple of follow up questions, 
Mr. Lappin.
    Mr. Wolf was asking several questions about Federal Prison 
Industries, and your response was that you have closed eight 
factories, eliminating 1,400 inmate jobs.
    Under the law is that absolutely necessary? Is there not 
another strategy to prevent closing these facilities? And if 
you are closing those facilities and there is no option to 
maintain them for prison industries activities, are you 
converting them for vocational training activities, and have 
you requested funding to support alternative activities as you 
close down a prison industries facility?
    Mr. Lappin. As you realize, this is a rather recent event. 
I mean for years we didn't close factories, we created 
factories. So let us put it into perspective.
    Actually, if you look at this last ten years, there were 
four or five years that prison industries was doing extremely 
well. During the war, because over half of our products and 
services were war driven, and so we were more profitable, we 
could open factories, sometimes even though we didn't need the 
factories. So, why did we open it? Because at the end of the 
day our real product is putting inmates to work.
    So what's happened? One, we are beginning to feel more 
directly the effects of legislation that has been passed that 
has watered down the FPI mandatory source. It is evident--
especially in furniture, textiles, and electronics.
    Number two, just a general downturn in the economy. People 
just aren't ordering and buying as much stuff, not only from 
us, but from private companies as well.
    And thirdly, a downturn in the war effort because we relied 
so heavily on the Department of Defense.
    So, those three issues have driven the loss of profits last 
year and this year in prison industries. Fortunately in those 
prior three years we did well, and we have got some money in 
the bank that we are now using in lieu of going out of 
business. So we are relying on savings that we generated in 
those prior years to continue the operations.
    Mr. Mollohan. What do you mean ``going out of business?'' 
What does that mean?
    Mr. Lappin. Well, I mean technically we must make a profit 
in prison industries. There are no appropriated funds, they 
must be self-supporting.
    Mr. Mollohan. Yeah.
    Mr. Lappin. And so we are using those savings to allow FPI 
to continue to be operational, but we must become more 
profitable, because we don't know how long this downturn is 
going to last. So, we are making decisions to try to stop the 
bleeding, just like any other private company would, in hopes 
that eventually a number of things could happen.
    One, maybe we will get legislation that would give us more 
authorities. You are right, it is probably a long shot, but 
there is always a possibility.
    Two, maybe we will get to see more of our customers buying 
more materials and services, we will see more business and the 
tide will begin to turn.
    So, we are trying to bridge ourselves to when that upturn 
begins.
    Federal Prison Industries is managed by a board, a 
Presidentially elected board, so they have input, they give us 
direction. We just met yesterday. These are businessmen and 
women who get greatly concerned when they walk in and we tell 
them we are going to lose $27 million this year. That is what 
we project we are going to lose, $27 million this year. And so 
obviously they are reacting to that. What can we do to reduce 
the loss, keep as many inmates employed as we can? They are 
working with us, but it is just a business that has to be run 
like a business, even though our product is a bit unique in 
that the real product is keeping inmates employed.
    Mr. Mollohan. When was the legislation that creates this 
framework passed?
    Mr. Lappin. The original?
    Mr. Mollohan. The one that is operative today?
    Mr. Lappin. 1934.
    Mr. Mollohan. So you were operating under the same rules as 
the original legislation passed in 1934?
    Mr. Lappin. The original legislation was passed in 1934. 
Since then, especially in the last decade, provisions have been 
put into law that have affected how those statutes are 
interpreted. And what we will do, we will send you a list of 
those provisions and how they changed the original law.
    [The information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Mollohan. I am going to get into this a bit more as 
time goes on here following up this hearing, but if this trend 
line is defined and dictated by a statutory requirement and it 
is obviously discernible, what strategy are you pursuing to 
supplement the kind of experience that the inmates are having 
and the training they are receiving in place of prison 
industries?
    Mr. Lappin. Yes, very good point. What we have done is 
where we have closed factories we are working directly with the 
wardens there to figure out what can we not only do with that 
space, but what resources do we need to replace that factory 
with additional programs? Whether it is VT, you know, a drug 
treatment program, you know whatever it is we need.
    Mr. Mollohan. Well this is skill training.
    Mr. Lappin. That's correct.
    Mr. Mollohan. This is employment training.
    Mr. Lappin. You are absolutely correct.
    Mr. Mollohan. So if you replace it with drug treatment 
space, you know, that needs to be out some place else and 
hopefully it is already happening at some place else in your 
prison.
    Mr. Lappin. It is very difficult for us to recreate a work 
skill program like prison industries.
    Mr. Mollohan. Why?
    Mr. Lappin. There are only so many jobs you have in prison.
    Mr. Mollohan. No, it is not jobs, I am talking about 
vocational training. When young people go through vocational 
training in high school they don't have a job, they get trained 
on how to do it.
    Mr. Lappin. I understand that.
    Mr. Mollohan. So I guess what I am getting at, is your 
budget requesting money to supplement the training experience 
that prisoners would get in prison industries as the prison 
industries activity atrophies?
    Mr. Lappin. I will make sure I am clear.
    Mr. Mollohan. Is your budget requesting additional funding 
for vocational training?
    Mr. Lappin. If you replace what we have lost in prison 
industries to something like that----
    Mr. Mollohan. No, no, to replace the training. Let me be 
clear, and I am sorry not to be clear.
    If I am working in Glenville prison learning how to redo 
these big trucks that come from the Army and that job goes 
down, I can still learn to do that if I am participating in a 
vocational training program, the difference being, I suppose, 
the funding source.
    Mr. Lappin. I see one clarification.
    Mr. Mollohan. Okay.
    Mr. Lappin. We see the provision of vocational training as 
providing knowledge about how to do something.
    Mr. Lappin. What it doesn't do that prison industries does 
do is teach them work responsibilities.
    Mr. Mollohan. Great. Well let us increase the prison 
industries program.
    Mr. Lappin. I wish we could.
    Mr. Mollohan. And we can't.
    Mr. Lappin. That's right.
    Mr. Mollohan. That is the next best thing.
    Mr. Lappin. Yes, we are looking at what funding we need. I 
am not sure it is in the 2011 budget.
    Mr. Mollohan. Does that mean it is not?
    Mr. Lappin. We are being assessed.
    Mr. Mollohan. Does that mean it is not?
    Mr. Lappin. That means it is not, I just was told. It will 
be in our future requests, because we are doing the assessment 
now.
    Mr. Mollohan. Yeah.
    Mr. Lappin. But we are just ramping down those factories.
    Mr. Mollohan. You are saying they closed eight out of how 
many?
    Mr. Lappin. We have----
    Mr. Mollohan. Fourteen hundred inmate jobs?
    Mr. Lappin. No, we have--I am going to tell you how many 
factories we have.
    Mr. Mollohan. Eight sounds like a lot to me.
    Mr. Lappin. We have about 100 factories.
    Mr. Mollohan. And how many closed last year?
    Mr. Lappin. Eight.
    Mr. Mollohan. How many closed the year before that?
    Mr. Lappin. None.
    Mr. Mollohan. None.
    Mr. Lappin. Yes.
    Mr. Mollohan. Oh, so this----
    Mr. Lappin. So last year was the first year we closed 
factories. There could be another round of closures.
    Mr. Mollohan. Well let us work together to see if there is 
a strategy to be developed, work with Mr. Wolf, and you know, 
the minority and the majority, to see if there are some 
strategies we can pursue legislatively to reverse this trend. 
If that trend doesn't reverse and you don't train these folks, 
what do people do when they get out? Your statement to him was 
that people are shunned when they get out. Well if they had a 
skill they might overcome that, but if they don't have a skill 
they will not overcome that.
    Mr. Lappin. And we are very supportive of that.
    Mr. Mollohan. I know.
    Mr. Lappin. Just realize we are still not going to address 
the work skills issue that many of them lack, because you just 
don't get that in a vocational course. You learn the skill, but 
you don't really address the issue of your responsibility of 
being a good worker.
    Mr. Mollohan. Well maybe you fashion it after that model 
just like you were trying to do it.
    Mr. Lappin. We will do the best we can.
    Mr. Mollohan. Yeah.
    Mr. Lappin. What we have found is that it is not quite as 
useful as the prison industries program in that regard. But we 
will work with you to identify what resources we need to back 
fill for some of these ideas.

                              BUDGET GAPS

    Mr. Mollohan. I am sure, and we look forward to working 
with you.
    I have a few questions on staffing that I will submit for 
the record, but I think we have plowed that ground. But in 
order to carry out your hiring plan for fiscal year 2011, 
Congress would need to provide an additional $44.1 million 
above the budget request. Do you agree with that statement?
    Mr. Lappin. I am not familiar with that.
    Mr. Mollohan. In other words, when I was asking you about 
where the holes where, that was the answer I was fishing for.
    Mr. Lappin. In essence to establish what part, the hiring 
process?
    Mr. Mollohan. This addition funding----
    Mr. Lappin. Yes.
    Mr. Mollohan [continuing]. Is required because OMB did not 
allow the Bureau of Prisons to request funding to finish the 
activations of FCI McDowell and FCI Mendota.
    Mr. Lappin. You know, I know what it is we are addressing 
now. If you go back to the 2010 budget----
    Mr. Mollohan. It is OMB. Who are these people?
    Mr. Lappin. You got a line item in there for the activation 
of McDowell and Mendota.
    Mr. Mollohan. Right.
    Mr. Lappin. And I think we got $22 million at one and $36 
million at the other. That is for the first year of activation. 
It remains silent in 2011 as to the final second year of these 
activations. So, it is not specifically identified. We are 
going to have to finish those activations, and so, one would 
assume that we are going to take it out of our base.
    Mr. Mollohan. That is what we call a hole. So are there any 
holes in your budget?
    Mr. Lappin. Well we are going to have to identify the 
funding to finish the activations for McDowell and Mendota.

                     MODERNIZATION AND REPAIR (M&R)

    Mr. Mollohan. Okay. Facilities modernization and repair. 
During last year's hearing we talked about the Bureau of 
Prisons facility modernization and repair needs and about the 
Federal Facilities Council guidelines, which suggests that the 
annual M&R cost for a facility should be in the range of two to 
four percent of the aggregated current replacement value of the 
facility. Even two percent of the value of BOP's facilities 
would be several hundred million dollars annually, and the 
Department has not proposed M&R budgets approaching anything 
near that amount in recent history. In fact, the M&R proposal 
for fiscal year 2011 is only $74.2 million, roughly equal to 
the 2010 funding level of 73 million.
    What's the impact of BOP's growing backlog of M&R projects 
on the basic operation of facilities? And we go over this every 
year. I mean you would think at this point they are falling 
down.
    Mr. Lappin. They are not falling down because I have great 
folks out there that do a lot of good Band-Aid work, and the 
reality is this is obviously an area of concern. We have got 
115 prisons that we are maintaining and repairing. You are 
right, the budget for the last few years has been around 74 
million. A two percent replacement value is about 500 million.
    So what are we doing? Every single year we prioritize every 
single request, and those that are the most critical, and by 
most critical I am saying life safety and security go to the 
top and those are the ones we fund. And we fund as many of 
these as we can.
    Mr. Mollohan. Well some of them are probably being closed 
down as new facilities come on board and so that takes the 
worst facilities out of your inventory.
    Mr. Lappin. We haven't closed any facilities. We can't 
afford to close a facility because we would then have more 
crowding.
    Mr. Mollohan. Yeah.
    Mr. Lappin. So without a doubt, those that aren't being 
addressed, the buildings are continuing to deteriorate or the 
issue continues to exist. We just have to prioritize them the 
next year, identifying those most critical, and we will fund 
whatever we can fund. And we do that nationally now. We used to 
do it regionally, so now it is a single group that collects all 
of the requests and prioritizes them. We then get it out to 
each region and say here is what we consider the highest 
priorities. We ultimately agree, and then we distribute what 
money we have to those highest priorities.
    Mr. Mollohan. You just work with it the best you can.
    Mr. Lappin. Do the best we can to keep them----
    Mr. Mollohan. But you are pushing it out there in the 
future. I mean it is real at some point.
    Mr. Lappin. It is either pay me now or pay me later, you 
know, like the old oil change commercial.
    Mr. Mollohan. Yeah.
    Mr. Lappin. That is where we are at. Pay me now or pay me 
later.
    Mr. Mollohan. So some time you are going to have to come up 
here and say we need a billion dollars, we have to have a 
billion dollars.
    Mr. Lappin. I am afraid it is either that or ultimately we 
will have housing units or buildings that we will have to 
close, in lieu of occupying, given some safety and sanitation 
and environment issues.
    Mr. Mollohan. You know that would be a very useful prospect 
to have substantiated and analyzed for the Committee. Would you 
do that and submit a report?
    Mr. Lappin. We will do our best. I hate to say that I went 
to an institution about a year ago, when I went to the housing 
unit it was raining, and they gave me an umbrella. An umbrella 
because it was raining into the common area. It didn't have a 
decent roof, and so obviously it got a new roof after that 
visit. I came back here and said we have to get the money to 
fix the roof.
    [The information follows:]

                   BOP's Modernization & Repair Needs

    On January 15, 2010, the Department provided the Congress a 
complete summary of the Modernization and Repair (M&R) backlog of the 
BOP's highest priority unfunded M&R projects. This list included 
projects such as roof replacement, fire alarm system replacement, 
installation of additional high-mast lights, and upgrade of electrical 
systems and generators.

    Mr. Mollohan. Where was that?
    Mr. Lappin. Memphis.

                        NEED FOR NEW PRISON BEDS

    Mr. Mollohan. Construction and activation of new BOP 
facilities. The fiscal year 2010 act provided $52 million to 
begin the activation of FCI McDowell, in West Virginia and FCI 
Mendota, in California. When fully activated, these new 
facilities will add approximately 2,500 beds to your total 
capacity, but BOP anticipates a gain of 7,000 inmates as you 
testified before.
    The 2011 budget proposes $28.5 million to begin the 
activation of FCI Berlin, in New Hampshire, which would add an 
additional 1,280 new beds, but you anticipate a net gain of 
7,000 in 2011.
    You know, when you do the math, and in your opening 
statement it was the thing that came through most impressively, 
it is clear that the Bureau of Prisons is continuing down an 
unsustainable path.
    What happens here? And does your current request for 
acquisitions or construction anticipate the numbers that you 
are providing for the Committee today with regard to the growth 
of the population?
    Mr. Lappin. The 2011 budget also, just to make sure it is 
on the record, requests funding for the activation of Thomson, 
and so its got Berlin and Thomson.
    Mr. Mollohan. It still doesn't add up. I mean we went 
through those numbers at the beginning of the hearing. So what 
happens here?
    Mr. Lappin. And again, my reference that there are a few 
things we are going to have to address, and so we are working 
with the Administration to address these four or five 
suggestions that I made. And I am encouraged, I have to say, by 
the Attorney General's efforts, he has created a working group 
in the Department of Justice called the sentencing and 
corrections working group and they are looking at some of these 
alternative strategies. Like, should we be looking at 
increasing good times for inmates?
    Mr. Mollohan. Okay, I don't want you to go into them 
because we don't have time. Let me ask you. That exercise is 
ongoing?
    Mr. Lappin. That exercise is ongoing.
    Mr. Mollohan. When do you expect it to be mature enough to 
produce a product that we can look at?
    Mr. Lappin. I don't know, but I will get back to you.
    [The information follows:]

          Status of AG's Sentencing and Corrections Workgroup

    The Attorney General created the Sentencing and Corrections Working 
Group last year to conduct a comprehensive review of federal sentencing 
and corrections policy, including a review of possible recommendations 
to the President and Congress for new legislation to improve federal 
sentencing and corrections policy and practice. The mission of the 
Working Group has been to help develop sentencing and corrections 
systems that, in an effective and efficient manner as possible, promote 
public safety, provide just punishment to offenders, avoid unwarranted 
sentencing disparities, and reduce recidivism by breaking down barriers 
for exoffenders to successfully rejoin society. The group has been 
examining, among other issues: (1) the disparity in federal crack and 
powder cocaine sentences; (2) prisoner reentry and other programs to 
reduce recidivism; (3) the Department's policies on charging and 
sentencing advocacy; (4) the federal sentencing guidelines, (5) 
mandatory minimum sentencing statutes; (6) the impact of current 
charging policies, sentencing practices, and resource issues on the 
Bureau of Prisons; (7) alternatives to incarceration; and (7) the 
Department's protocols for reviewing capital offenses for the possible 
application of the death penalty.
    The Working Group has been completing aspects of its work on a 
rolling basis. The Department anticipates announcing some changes o 
several policies in the near future and to work with Congress later 
this year on possible legislative changes affecting federal sentencing 
and corrections policies.

    Mr. Mollohan. Okay.
    Mr. Lappin. But, what are we going to do? We are going to 
continue to work to add beds through private contracts, and try 
to get funding to build prisons. You will see another request 
to purchase prisons. We are looking at existing empty 
facilities like Thomson. Believe me, there are not very many of 
them, because most of the inventory that is empty, is old and 
inefficient and we don't want it. However, there are a few of 
them out there that may be available that we could purchase, 
and we would advocate for the purchase of those facilities to 
help shore up the limited bed space we are acquiring.
    Mr. Mollohan. Mr. Wolf.
    Mr. Wolf. Thank you, Mr. Chairman.

                    FEDERAL PRISON INDUSTRIES (FPI)

    I just have two questions, or one on the prison industries 
thing. You know, I have an amendment I can offer. It really 
does go a long way to solve the problem. There were a couple 
articles in the news yesterday about the repatriation of jobs 
back to the United States. Call centers. I mean you have the 
opportunity, there are call centers in Monterey, Mexico could 
be in Monterey, California. There are call centers that could 
be--I mean the opportunity is wide open.
    And you know, I would challenge the Attorney General and I 
would challenge you, the previous one did not do it because of 
the Chamber of Commerce, you know, to really get behind this.
    I will offer it here and we will see what the authorizers 
say. But that would create more jobs. I mean just that one 
dignity, you can't put a man or woman in jail for a long period 
of time without giving them work.
    Secondly, and I have talked to prisoners who said they 
would make some money and that would give them some money to 
come by the canteen to buy whatever they wanted to buy, but 
also they had an account whereby when they got out they just 
didn't get-- what do you give them now when you get out?
    Mr. Lappin. Fifty dollars.
    Mr. Wolf. Fifty dollars. So they would have had not a lot 
of money, but maybe $1,800, something to begin with. And so by 
the Congress doing what it has done and by the administration 
previous failing to, you have almost guaranteed the recidivism 
rate can't get any better. I mean it is almost biblical.
    So I will be glad to offer the amendment, and I don't know 
if the Rules Committee will strike it, but it really almost 
does solve the problem. Because for instance, there are no 
television sets made in the United States. If you were to use 
that as an oversimplification, the person who drops the plastic 
case by would be an American worker driving a truck. The person 
who drops the wire by. The person who sells the gas to the 
truck. They would have created American jobs, and I think there 
isn't any other way. And to just almost pretend that something 
is going to happen is kind of, not to quote Simon and Garfunkel 
in two straight days, but man hears what he wants to hear and 
disregards the rest.
    There is no way this Congress, particularly now in a 
declining job market, the perception is that every job is in 
competition.
    So I think you could do it in a way that you are not 
competing with the furniture guys. I understand that. But when 
you walk through prisons, federal and state, the men and women 
are just hanging out, they are just kind of hanging out. You 
know, you don't even make them walk across like we did in the 
military to pick up cigarette butts anymore. No one is almost 
working. And so this would honestly provide dignity, and yet I 
think create American jobs and not take away one job. And so 
let us see, maybe we can put it in a bill and see what happens.
    Mr. Lappin. You are right, inmates in federal prison no 
longer pick up butts because we don't let them smoke, but I 
guarantee you they are clean prisons, because we make the 
inmates work.
    But we are more than happy--we would love to come meet with 
you so that we don't get on different tracks.
    Mr. Wolf. I have met with you guys over and over. I mean 
send the Attorney General over.
    Mr. Lappin. But I think these are some new developments 
that you need to be aware of before we move forward too 
quickly. It won't take long. Let us first give you an update, 
an update on what we are working on, and how you might be able 
to fold that into something that would be helpful.
    But we realize though, Congressman, we have got to rely 
less on furniture, textiles, and electronics. We have got to 
compete, we have got to rely less on that mandatory source to 
get the critics to understand we do not want to take jobs away 
from American citizen businesses. We don't want to do that--or 
at least limit it as much as we can. We agree with you, there 
are some things that we can do.

                     PRISON INDUSTRIES ENHANCEMENT

    PIE authority. We want to work with those businesses. We 
would like to have that influence. We don't have PIE authority. 
That is an option that we would like to pursue, and that way we 
are helping American business not replacing them.
    So, we would love just to give you a short briefing on 
where we are at, with some of those things. But we really want 
to work with you on this, because it is critically important. 
And I know I am optimistic, that the glass is half full.
    Mr. Wolf. It is only a quarter, right?
    Mr. Lappin. It is half full. I believe we can make 
something happen, if we think otherwise it won't happen, and we 
are going to keep going.
    Mr. Wolf. Okay. Sure, we will be glad to do that. But I 
asked the Department of Commerce to put together some 
information of the 25 largest international companies that are 
doing business aboard, and maybe when we get that information 
we can share that with you.
    Mr. Lappin. We operate right now eight or ten call centers. 
We would love to take you to one. It is a wonderful assignment 
that not only keeps these--I mean, some of them run 24 hours a 
day, so inmates are learning to work shift work. Before they go 
into that assignment, they have to go to English class and 
eliminate their slang. They have to go to geography class so 
they know, you know, when somebody says I want the phone number 
in X city they can go right to it, because we compete with the 
private contractors in these countries. So, it is a great 
opportunity. We would like to see more of that. But on the 
other hand, they are automating a lot of that work too. You 
know, when you call in and you get some automated message, so 
that is replacing some of the traditional call service 
programs, but we have got eight to ten of those factories. They 
are great.

                        SEXUAL ABUSE OF INMATES

    Mr. Wolf. Okay. A September 2009 OIG report is critical of 
your oversight of the programs to prevent sexual abuse of 
inmates by staff. And the Committee prepared language in the 
fiscal year 2010 bill urging you to act as soon as possible on 
the OIG's recommendations. Can you tell us what his 
recommendations were and whether they have been implemented?
    Mr. Lappin. I can't recall the specific recommendations. We 
can follow up with you on our response back to the IG on those 
issues. I assure you what we have done is increased training 
and enhanced investigative skills, and we try to hire people 
that won't act out that way. I mean that is the most 
frustrating thing.
    I know you all realize that this is a very, very small 
percentage of our entire work force who we find acts this way, 
and it is unfortunate, it is shameful, and we want to do 
everything to prevent that.
    So, will in writing come back and share with you what the 
recommendations were, what our response has been, and what we 
have done to comply with those recommendations.
    [The information follows:]

     BOP's Response to OIG's 2009 Report on Preventing Sexual Abuse

    Please see the following link for the information, and see Appendix 
V and Appendix VI: http://www.justice.gov/oig/reports/plus/e0904.pdf.

                            THOMSON FACILITY

    Mr. Wolf. Okay. I have a number of questions on the Thomson 
facility.
    With the transfer of Guantanamo detainees to the United 
States, which certainly has a lot of controversy, if that never 
had come to fruition in your view, does it still make sense, 
and is it financially prudent to purchase this facility, 
Thomson?
    Mr. Lappin. Yes, it does. And we understand the 
controversy, we are not a part of that, and to say we support 
the Administration's effort to solve both these problems. To 
increase prison space, and if in fact you, the Congress, 
changes the law for detainees to come into this country and it 
is decided they should be housed at Thomson, we are more than 
willing to work with the Department of Defense. But this 
request is only addressing the purchase and the operation of 
Thomson as a federal prison. It doesn't change that authority 
of where detainees will be housed.
    Mr. Wolf. Does DoD plan on putting any money in assuming--
and I think as of now if this comes up in the Congress that 
Congress will vote it down, but that is any sense--but it 
should go forward. Does the DoD plan on participating in it? 
Are they putting money into it?
    Mr. Lappin. The purchase?
    Mr. Wolf. Yes.
    Mr. Lappin. No, none. This is going to be at first an all 
Bureau of Prisons facility, 100 percent. And again, this 
request only addresses the purchase of that facility and 
operation of it. So, at some point in the future, if it becomes 
legal to bring them into this country and we went into this 
agreement with the Department of Defense, we would permit them 
to use a small portion of that facility to house the detainees, 
but only after they have the legal authority. And, they would 
pay for any additional infrastructure necessary to facilitate 
that operation.
    We would not be involved with the management of those 
folks, other than the support--food service, laundry, perimeter 
security, those types of things.

                             GUANTANAMO BAY

    Mr. Wolf. Have you or your people been down to Guantanamo 
Bay and looked at it, and what is your just sense? And the 
record states you are not taking a position one way or the 
other, I put that out there. But what kind of place is it? 
People that I have talked to tell me it is a pretty impressive 
operation, and I have never been there so I don't know. But 
what is your----
    Mr. Lappin. I have been there, and there is some new 
construction there, and also, there is some old construction 
there. So it is a mixture of different types of facilities. But 
you know, the Department of Defense does a great job.
    Mr. Wolf. Yeah.
    Mr. Lappin. And in fact, if we were to work together at 
Thomson, we would look forward to that. But again, that is 
really I think a separate issue not applicable to this request.
    Mr. Wolf. Oh, I understand. So it is not a torture chamber, 
it is not a horrible place, it is----
    Mr. Lappin. No.
    Mr. Wolf. I think the Guantanamo name has sort of taken on. 
But for people that have been down there, the media people that 
I have talked to they tell me it is a very well run operation. 
And why do the guards in Guantanamo--and I think I know the 
answer, but I want you to tell me--wear that cover on their 
name so that the people in Guantanamo, the prisoners can't see 
their name?
    Mr. Lappin. I don't know, you would have to ask the 
Department of Defense.
    Mr. Wolf. What do you suspect it is?
    Mr. Lappin. I really don't know.
    Mr. Wolf. You do know.
    Mr. Lappin. I don't know.
    Mr. Wolf. Could you guess?
    Mr. Lappin. Don't want to guess.
    Mr. Wolf. I know that I am the one that said it. I have 
been told because they certainly don't want to see any 
ramifications with regard to them as they come back, and I 
think that is a whole concern with regard to moving people. 
Because wasn't Officer Pepe stabbed by one of the----
    Mr. Lappin. By a convicted international terrorist, yes, in 
MCC New York.
    Mr. Wolf. And I think there has also been some concern to 
prisoners who are known and their families will be subject to, 
and so that when they come back up from Guantanamo they don't 
want that connection whereby there could be some danger.
    Mr. Lappin. I mean, in our institutions, as you well know, 
we house over 200 international terrorists. Those terrorists 
know the names of our employees, but not unlike any other 
inmates they are all risky. You could be assaulted by any of 
them. And we have not seen behavior beyond what is typical of 
one's background and characteristics. Some of them are 
assaultive, some of them are not. So, obviously because we have 
them in ADX Florence, we have some in communication management 
units, we have some in general population facilities, even in 
low security institutions, and they have been successfully 
managed in a variety of different levels of security and 
oversight.
    Mr. Wolf. Any way, thank you, Mr. Chairman, through Mr. 
Lappin.

                        INMATE ASSAULTS ON STAFF

    Mr. Mollohan. Well that is a segue, and I suppose a good 
segue into my next line of questioning with regard to inmate 
assaults on staff. The first thing we want to do is make sure 
that staff are protected as much as possible, and I know you 
totally agree with that as they perform these very dangerous 
jobs.
    Looking at the statistics of serious assaults and less 
serious assaults from 2007 through 2009 and then those that 
have been reported to date, this is an interesting trend line 
and it appears to all be up as a matter of fact. And I am 
wondering if you are familiar with those statistics?
    Mr. Lappin. I am, and maybe you and I have different 
statistics.
    Mr. Mollohan. Well, I have, for 2007, a total of 1,306 
assaults, for 2008, a total of 1,601 assaults, and for 2009 a 
total of 1,891 assaults. That is all an up trend. Now the 
serious assaults from 2007 to 2008 went from 65 to 98. That is 
my information.
    Mr. Lappin. I don't have that.
    Mr. Mollohan. And from 2008 to 2009, they went to 104. Do 
you have different statistics?
    Mr. Lappin. I am going tell you what I have.
    Mr. Mollohan. Okay, well thank you.
    Mr. Lappin. In 2007 we had 79 serious assaults on staff.
    Mr. Mollohan. In 2007 you had what?
    Mr. Lappin. Seventy-nine on staff.
    Mr. Mollohan. These are different numbers than I have. I 
just wanted to know that.
    Mr. Lappin. We had 91 in 2008, and we had 81 in 2009.
    Mr. Mollohan. Serious assaults----
    Mr. Lappin. Serious assaults on staff.
    Mr. Mollohan [continuing]. Inmate assaults on staff at the 
Bureau of Prisons.
    Mr. Lappin. That's correct.
    Mr. Mollohan. Well where did we get these numbers?
    Mr. Lappin. Now let us back up. We have separated them into 
two categories. Minor assaults, less serious assaults.
    Mr. Mollohan. Well, I have less serious assaults.
    Mr. Lappin. We have 1,284 in 2007, 1,547 in 2008, and 1,631 
in 2009. And there is a----
    Mr. Mollohan. What was 2008?
    Mr. Lappin. I'm sorry, 1,547. And 1,631 in 2009.
    So, what we have seen is actually--and I realize that 
looking at the whole number is not an accurate reflection of 
what's going on, because obviously there are more inmates each 
year. That is why we do this by rate rather than by whole 
numbers, because you are adding 20,000 inmates over the course 
of those three years.
    So, what the trend of serious assaults on staff is actually 
a downward trend on the rates of assaults on staff, because we 
had 81 in 2009, but we had more inmates.
    Mr. Mollohan. Well that makes sense, those just aren't the 
numbers I had.
    Mr. Lappin. Correct. So, here is what we are seeing. We are 
seeing a slight reduction from 2008 in serious assaults on 
staff. We have seen an up tick in less serious assaults at high 
security institutions on staff. That concerns us. But also the 
serious assaults concern us. We don't want any. But my sense is 
the downward trend is related.

                     SPECIAL MANAGMENT UNITS (SMUS)

    I am not going to go out and say this definitively yet, but 
we activated the SMUs in 2008, end of 2008, and we now have 
almost 1,300 inmates who we have identified and moved to these 
more restrictive facilities. As a consequence, we are beginning 
to see not only fewer assaults, we are seeing fewer homicides, 
we are seeing lock downs that last much less, a shorter period 
of time. There is about the same number of lock downs lasting 
for a couple three days because the incidents are not nearly as 
serious or nearly as impactful. And so I am encouraged by that, 
I am not there yet, I don't think we are there yet. We still 
have inmates out in our penitentiaries who belong in SMUs or 
some more restrictive environment that we currently have beds 
for.
    Mr. Mollohan. Is the SMU a fairly recent strategy?
    Mr. Lappin. It is. It is somewhat consistent with the ADX 
Florence approach, it is just that we didn't think that those 
people needed to be in a program that takes so long to get 
through before getting back out on the compound.
    If you are in the control unit at Florence it is like a 
five or six year process. We believed that we could correct the 
behavior of some of these inmates in less time.
    So it has some similar conditions, some, not entirely, but 
the inmates are much more controlled, much more restricted, 
they don't get as many opportunities for programs and visiting 
and other things, but if they behave they can be out in two 
years or less. Actually, 18 months to two years. Some will get 
it, some will not. So, some are going to be retreads and go 
back through the program again, or we will send them to 
Florence.
    But we need more of these beds, that is why I am urgently 
requesting funds for Thomson so that we can increase the number 
of beds, move more of these inmates who are acting like this 
into those SMU beds.
    Mr. Mollohan. Thomson would be a special management unit?
    Mr. Lappin. Yes.
    Mr. Mollohan. The whole prison?
    Mr. Lappin. Not the whole prison, the majority of that 
prison. A part of that prison we are going to make ADX type bed 
space. Those are for folks that are even more serious, that 
don't get it in the SMU program, we've got to put them over 
there for even longer periods of time. So a portion of that 
would be ADX space.
    What we are having to do right now is take general 
population space off line. So we have taken an entire 
penitentiary at Lewisburg that was general population, and 
converted it to SMU space. We cannot continue to afford to do 
that. We need new space, and more appropriate space. Thomson 
was built more for this mission than some of our other 
facilities.
    And again, this is such a small shift. I can be back here 
next year and the rate of assaults may have gone up a little 
bit or the whole number has gone up a little bit. I question 
the rate is going to go up a lot.

                        INMATE ASSAULTS ON STAFF

    Mr. Mollohan. I don't want to interrupt you because you are 
answering most of the questions that I want answered, and that 
is very efficient. But with the less serious assaults the 
numbers I have for 2010--what are your numbers for your less 
serious assaults for 2010?
    Mr. Lappin. They have gone up in 2009. I don't have the 
2010 number with me, but they have gone up. The minor assaults 
on staff have increased each of those three years from 1,284 in 
2007 to 1,545 in 2008 to 1,631 in 2009. Now, I can't say the 
rate has changed that much, again, because we have added 
inmates each of those years.
    Mr. Mollohan. No, I understand. Could you do an analysis 
that we have----
    Mr. Lappin. We will do it.
    Mr. Mollohan. Statistics come from all different 
directions, this isn't a comment on anybody who supplied this 
information, but just could we reconcile these different 
numbers?
    Mr. Lappin. Absolutely.
    [The information follows:]

                                   ASSAULTS IN BOP & PRIVATE SECURE FACILITIES
----------------------------------------------------------------------------------------------------------------
                                                                               Less                      Less
                                                                Serious      serious      Serious      serious
                         Fiscal year                          assaults on  assaults on  assaults on  assaults on
                                                                 staff        staff       inmates      inmates
----------------------------------------------------------------------------------------------------------------
2005........................................................          132        1,404          413        1,966
2006........................................................          117        1,334          482        2,241
2007........................................................           68        1,242          397        2,566
2008........................................................           99        1,505          466        2,616
2009........................................................          105        1,789          517        2,657
2010*.......................................................           20          687          135        1,082
----------------------------------------------------------------------------------------------------------------
FY 2010 Data through March 27, 2010.

    Mr. Mollohan. And then the trend line, the rate increase 
that you would have to factor in the number.
    Mr. Lappin. We can do that.
    Mr. Mollohan. And in what circumstances.
    We want to support your special management unit program to 
the extent it is your strategy and it is being successful. I 
hope that it does make your correctional officers anticipate an 
improvement in the situation that they are concerned about. It 
is a very serious matter for the Committee and we want to 
support a resolution of it as quickly as possible, and it 
sounds like the strategies you are employing have promise of 
being successful.
    Mr. Lappin. Well it is a very important concern of ours as 
well for all of our staff, and we want them to be safe at work, 
and we are going to do everything we can do to reduce that 
number.
    Mr. Mollohan. I have a number of questions on the Second 
Chance Act that I really want to get to. I am glad to have 
gotten to the security issues on the record.
    We are going to submit a number of questions for the record 
now. I just want to hear you talk about this.

                        ANTI-CRAVING MEDICATION

    We don't know how using anti-craving medication in the 
context of a prison environment works or doesn't work, and that 
is why we have asked the experts to look at that.
    During last year's hearing, I asked you whether the Bureau 
of Prisons was using any anti-craving medication as a part of 
its drug treatment programs and you responded that the use of 
such medication was something you would consider based in part 
on the Bureau of Prisons review of research in this area.
    The fiscal year 2010 explanatory statement encouraged BOP 
to conduct a pilot initiative on the use of anti-craving 
medications as part of the RDAP program and through the period 
of an inmate's period of supervised release. The statement 
further encouraged BOP to coordinate with the National 
Institute on Drug Abuse, which is currently supporting research 
on the effectiveness of anti-craving medication on probationers 
and parolees.
    So just to capture for the record the status on that from 
you, has the BOP initiated a pilot study on the use of anti-
craving medication?
    Mr. Lappin. We have not initiated the pilot yet, but we 
intend to. We have looked at the drugs that are available, we 
are working with the National Institute on Drug Abuse, some 
folks out there who have expertise in this. We are narrowing 
the types of drugs that we would--or identifying the types of 
drugs that we would use, and we are working on the pilot.
    So, we intend to move in that direction. I am hopeful that 
we are going to get it implemented this year, the pilot, so 
that we can try this as part of our drug treatment protocol, 
because we want to do anything we can to help these individuals 
resist drug and alcohol use, and certainly this research 
reflects that there is potential this could be helpful.
    So, we are working on it, we haven't implemented the pilot 
yet, but we hope to do so in the not too distant future.
    Mr. Mollohan. It will be interesting to see how it plays 
out. It is a tool in the tool box, so whether it works under 
these circumstances will be very interesting to see.
    Mr. Lappin. We agree.
    Mr. Mollohan. Director Lappin, thank you for your testimony 
here today and thank you for your good service. It is a tough 
job. Oh my gosh, you are pulled in so many different directions 
and your resources are scarce at best, and so we want to be 
sensitive to that and to the limits of the budget 
possibilities. We want to be responsive to you because we do 
think you are trying very hard and being successful, and you 
have a tremendous dedicated staff from the correctional 
officers, administration, and correctional workers, and anybody 
else that those categories didn't cover who work for the Bureau 
of Prisons.
    So thank you very much for your testimony here today.
    Mr. Lappin. I appreciate that. I couldn't agree with you 
more. We have got a great group of 36,000 employees that serve 
this country extremely well each and every day and we 
appreciate your support and the support of Congressman Wolf and 
the rest of the members. Thank you, sir.
    Mr. Mollohan. Okay, thank you.

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                                         Wednesday, March 18, 2010.

 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES--COUNCIL OF PRISON LOCALS

                               WITNESSES

BRYAN LOWRY, PRESIDENT, COUNCIL OF PRISON LOCALS, AFGE, AFL-CIO
PHIL GLOVER, NATIONAL LEGISLATIVE COORDINATOR, COUNCIL OF PRISON 
    LOCALS, AFGE, AFL-CIO

                  Opening Statement--Chairman Mollohan

    Mr. Mollohan. The hearing will come to order. Well good 
afternoon. I would like to welcome Mr. Bryan Lowry, the 
President of AFGE's Council of Prison Locals, and Mr. Phil 
Glover, the National Legislative Director for the Council of 
Prison Locals, to our hearing this afternoon on major 
challenges facing the Federal Bureau of Prisons.
    We have asked you to come back again to testify this year 
because your perspective from the inside of the federal prisons 
is critical for us to understand as we make funding decisions 
about the federal prison system.
    The Subcommittee has worked hard over the last few years to 
provide funding increases above the President's budget request 
to ensure that the Bureau of Prisons would be able to meet its 
basic operating expenses and would be able to significantly 
increase its staffing levels. Although the staffing levels are 
not yet what they need to be, we are committed to keep pushing 
them higher.
    There are many other challenges facing the Bureau of 
Prisons, including an inmate overcrowding rate that has reached 
37 percent, a growing facility maintenance backlog, and an 
inmate population that by most accounts is becoming more 
violent and more difficult to manage. We will want to discuss 
these and other issues with you this afternoon. In a moment, 
gentlemen, I will ask you each to provide remarks summarizing 
your joint written statement, which will be made a part of the 
record. But first I would like to recognize Mr. Wolf for any 
opening introductory remarks that he would like to make.
    Mr. Wolf. I welcome you to the Committee. I have no 
comments. Thank you, Mr. Chairman.
    Mr. Mollohan. Gentlemen.

                      Opening Statement--Witnesses

    Mr. Lowry. Chairman Mollohan, Ranking Member Wolf, and 
members of the Subcommittee. My name is Bryan Lowry. I am the 
President of the Council of Prison Locals, American Federation 
of Government Employees. Here with me today is Phil Glover, who 
is the Council's Legislative Coordinator for the Council of 
Prison Locals AFGE. On behalf of the over 38,000 federal 
correctional workers who work at 115 institutions in the Bureau 
of Prisons nationwide, we want to thank you for the opportunity 
that you have given us today to testify on various Bureau of 
Prisons issues that are critically important to the safety and 
security of federal correctional workers and the local 
communities surrounding the federal prisons.
    BOP prisons have continued to be increasingly dangerous 
places to work, primarily because of serious correctional 
understaffing and prison inmate overcrowding problems. 340 
inmate on staff assaults have occurred at various Federal 
prisons since the brutal murder of correctional officer Jose 
Rivera on June 20, 2008, by two inmates at the United States 
Penitentiary in Atwater, California. These aggressive acts by 
inmates against staff illustrate a common reality facing the 
staff daily at their workplace. In addition, Bureau of Prison 
correctional workers have become increasingly demoralized 
because of the lack of necessary funding for correctional staff 
positions, staff training, warranted equipment, and 
programmatic tools that would improve the safety and security 
of BOP prisons. As well as the adoption by BOP management 
beginning in 2005 of the Mission Critical Post policy, a cost 
reduction strategy involving substantial cuts in correctional 
worker positions. This policy resulted in decreased staff 
supervision of inmates, including decreasing staff supervision 
of inmates in housing units, inmate recreation areas, inmate 
work details, as well as unmanning prison towers.
    At the same time, I sincerely hope that you and your 
staffers know how much we appreciate your active efforts on 
behalf of our staff during the past few years. I particularly 
want to thank you for all the work that this Committee has done 
to help us increase the budgets and the salary and expense 
account for the Bureau of Prisons.
    I am willing to answer any questions you may have after 
that. Thank you.
    [The information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Mollohan. Mr. Glover.
    Mr. Glover. Mr. Chairman and Ranking Member Wolf, again 
thank you for being here and thanks to your staff for working 
with us over the last few years to move staffing back in the 
right direction. Just a reminder, in 2005 and 2006 the Director 
cut 2,300 staff positions. So the discussion about the funding 
levels this year are only bringing us back to where we were in 
2005 and 2006. But it certainly is moving us in a better 
direction.
    The staff to inmate ratio is still 1 to 4.9 and will be at 
the end of fiscal year 2010. The 900 staff that are to be hired 
through this fiscal year will probably not actually be hired 
until the end of the fiscal year, and then annualized into the 
2011 budget. So while they are bringing staff on, they are 
really bringing staff on at the last quarter. This happened 
last year, and then they are annualizing that amount of money 
necessary to pay for those staff.
    We request $219 million above the S and E amount, for a 
total of 1,826 more correctional worker positions, and $230 
million above the B and F request for the funding of 
construction and more M and R projects. As was relayed earlier 
in the testimony from the Director, the maintenance and repair 
accounts are seriously underfunded.
    We hear, or we see, in the Director's testimony that we are 
at about an 89 percent staffing rate. And our question is, 89 
percent of what? If you have cut 2,300 positions in '05 and 
'06, and you are not adding that back into the mix, then it is 
89 percent of what amount?
    The Obama budget is $6.5 billion for S and E, and $269 
million for B and F. We certainly appreciated that there was a 
substantial increase. But obviously, as this Committee has said 
over the years, and even when Ranking Member Wolf was the 
Chairman he repeatedly put into report language, that the 
administration really needed to look at funding the prison 
system appropriately.
    We do want to bring up the private prison issue. We have 
seen an increase from three private facilities in the year 2001 
to fourteen now. The latest contract award, January 2010, was 
an award of $553 million for a four-year base period, with 
possible two-year option periods, which I am sure will be 
renegotiated at that point. The thing that is getting to us 
with these private prison contracts is if you break that down 
over a four-year period, that $553 million, I do not think we 
have a single facility at this point that per year would run on 
that amount of money. We would be far less. And they really 
only have to provide four departments: corrections, medical, 
receiving and discharge, food service, and some administrative 
positions. The private sector with the criminal alien 
population is not providing programming at all.
    The other issue for us is the revolving door. The SES pay 
scale for BOP management is $119,000 to $179,000 per year. That 
is top rate for SESs. CCA's average salary to their top three 
officers is $279,000, and total compensation is $1.2 million 
over a year period. GEO Group is $651,000 on average for the 
top three officers of the company, $2.3 million in total 
compensation. And we have those documents.
    The stun fences, we brought this up last year and we are 
going to bring it up this year. We do have specific dates and 
times when fences have gone down at specific facilities. We do 
not feel we can give that to you in an open hearing, but we 
will provide it to the Committee staff after the hearing so 
that that information is not out in the public. These security 
fences only protect from escape and they do not protect for 
activities occurring on a recreation yard. It does not protect 
the safety of staff or inmates who are out on a recreation yard 
and have issues such as a disturbance out on that yard. Staff 
are taught to run underneath the towers for protection in the 
event of a riot. If the towers are not manned, those stun 
fences will do nothing to help the staff and that is one of our 
main concerns with the stun fences.
    The Second Chance Act has been brought up repeatedly. We 
believe it needs to be fully funded. The issue that we are 
hearing back from our case management employees who are union 
employees is that there are not enough halfway houses. They are 
referring by management's directive all of the inmates that 
they can, but many of these inmates are being kicked back 
because of lack of bed space in the halfway houses. In 
addition, they are being told to submit inmates that normally 
would not be appropriate for halfway houses. Inmates who are 
child pedophiles, or have a history of assaults, violence. They 
are being told to send all of them forward for halfway houses 
to increase the numbers. And we think that is a waste of our 
staff's time. They should have more discretion to look at 
whether an inmate should be placed in a halfway house at a year 
or not, and at the six-month rate, which is our normal rate.
    The Prison Rape Elimination Act, we talked about that last 
year as well. And until all the housing units are staffed, and 
the recreation areas are staffed, we cannot monitor what is 
going on in those housing units 24/7. We want to do it. Our 
staff want to do it. But it is just not possible.
    The other issue is training. I heard the Director talk 
about training this morning. I can tell you that last year I 
received a half hour of training on the Prison Rape Elimination 
Act at my facility. I am an active correctional officer, and I 
can tell you that that was not a top priority.
    FPI, their issues are well documented. We are concerned 
with the situation, with more inmates being laid off. It is not 
helpful to anyone. And it is certainly not helpful to the 
inmate population. How it affects the inmates is that they do 
not make very much money. You do not have them using the 
commissary as much. Now we are starting to see theft out of 
food service. We are seeing them bring food service items up to 
the housing units. It is just a bad situation the whole way 
around. So anything we can do to get inmates working again 
would be helpful. Thank you very much.

                            STAFFING LEVELS

    Mr. Mollohan. Well thank you both for your testimony. With 
regard to staffing levels, are you seeing that new staffing in 
the prisons? And is it being targeted in the right way?
    Mr. Lowry. I know there are increases that have occurred in 
some positions outside of correction, and I know that the 
correctional staffing levels have gone up some. But it has not 
added any new posts. In other words, assignments in certain 
areas that we had prior to this Mission Critical staffing, such 
as additional recreation yard officers in the evening when the 
majority of your inmates would be out there. You could have at 
least half, a third to half of your population on the rec yard 
during the spring and summer months. And now what you basically 
have are one or two people, recreation specialists, and maybe 
an officer watching where, you know, ten years ago you would 
have four or five people out there, especially in the higher 
security level prisons. And they have not added these posts 
back on.
    It is a matter of what do you do with the resources when 
you get them is our concern. We get the additional funding. But 
the initiatives that are put into place, in our opinions, are 
not sound. Where inmates are likely to congregate in large 
numbers, having those positions that we once had, we called 
them different things, compound officers that would be in open 
areas where inmates would be, having additional officers in 
some of these higher security prisons to partner up with one 
another, since the violence has increased in our prisons. More 
staffing in the evening time, although, you know, an 
institution may have on average 300 staff, those staff are all 
over the place.
    Some of these prisons inside the fence are fifty-plus 
acres. And so you have people working in different areas. They 
are not supervising or watching the inmates. They are doing 
their functions that are assigned to them. But we are looking 
for staff to be put in these general areas. Because our main 
concern, to try to answer your question, is if you cannot 
properly supervise inmates to, number one, stop the manufacture 
of weapons; number two, stop the manufacture of contraband such 
as alcohol or moving drugs around in different ways, or them 
being able to hide it, you cannot stop the violence inside the 
prisons. And since our staffing has declined you can look at 
the numbers that have been put together by the agency or even 
the union. And our numbers would be less because we rely on the 
local unions from each institution to report directly to us. 
Now, whoever determines what is serious and what is less 
serious, we beg to differ if a correctional officer or a 
correctional worker is attacked by an inmate. But if you cannot 
stop the manufacture of weapons and that sort of thing, and 
then you are overcrowded to the point to where if it is an 
outright serious act that they deem serious, you have no place 
to lock these inmates up.
    Our special housing unit, which is our jail inside the 
prison, is full. All these places are full. And our numbers in 
the high security prisons are something, unless you really know 
how the system operates. We have decreased the number of 
available beds for high security offenders. As the Director 
testified, the number of inmates being involved in gangs is 
probably higher than it has ever been before. And when you have 
that many inmates as part of gangs, you are going to have a 
little more violence. It may not always be directed towards the 
staff, but staff get injured when they respond, trying to break 
it up. Then the aggression turns towards the staff. The numbers 
are high, and they have increased every year the way we have 
calculated our numbers of assaults on staff.
    But you have got to be able to supervise these inmates. And 
we do not have the overall supervision we once had to maintain 
real secure environments. Although we do the best we can, and 
we think our staff are very professional, it has still gotten 
overwhelming.
    If I can make one more point on that question? I visited 
two high security prisons this week before I came to D.C. One, 
United States Penitentiary in McCreary, Kentucky, and another, 
United States Penitentiary in Lee, Virginia. And when I went to 
the prison in Lee, Virginia there was an incident that I was 
not even aware of that occurred on January 25th where they had 
a disturbance on their recreation yard.
    It was actually during the day watch hours, and because 
their staffing level is not at a great extent they were doing 
what is called annual refresher training. Which means in a 
three-week period you try to get all your staff in that 
institution trained, so you break it down by a third. The 
disturbance occurred, when most of the staff were down at the 
training and not up there at the general institution. And there 
was live round fire shot from the towers to quell the 
disturbance and to get the inmates on the ground. They resisted 
the warning shots, dispersionary rounds first, and then live 
fire rounds after that. They continued to riot out there. So an 
officer went out there. The last thing he remembered is an 
inmate had a weapon and he tried to tackle him. And the next 
thing he knew he was in the hospital, carried out in the 
ambulance.
    Well, the union insisted I talk to this guy. So I went and 
talked to him yesterday. And when I went into the office what 
he said to me was, ``I'm okay.'' And then he broke down and 
said, ``But you know what? People don't understand my family 
suffers as much as I did through this whole thing.'' It's the 
stress everyday of not knowing what is going to occur, and not 
having the staff there to respond that is affecting the mental 
health of our staff as well. And that is something we wanted to 
make sure that we got across to you, the Committee. Thank you.
    Mr. Mollohan. No, thank you. What do you think is the 
appropriate baseline measurement for adequate staffing? We 
talked about that with the Director this morning a bit. What do 
you think ought to be the baseline off of which we work? And as 
I understand it, the Bureau goes through an exercise of 
determining need and then they generate an authorized number 
based on that. And it is off that authorized number that we 
measure percentages, and the adequacy of the personnel, the 
number of correctional officers and correctional staff 
otherwise. What is the right base? What is the right process to 
go through?
    Mr. Glover. Mr. Chairman, we really believe that the ratio 
is the way to go. When we had a low ratio, 1 to 3.5 inmates in 
the late nineties, early two thousands, you did not have us up 
here screaming for staff, and you did not have us up here 
telling you about these horrific assaults and those kind of 
things.
    Mr. Mollohan. Would the ratio be different today than it 
was back then?
    Mr. Glover. It actually probably should be lower.
    Mr. Mollohan. They say that with the modern prisons, the 
way they are designed, they should take less staff.
    Mr. Glover. Our problem with that model is this. Yes, we 
have new, triangular-shaped units. And so what their theory was 
is you could put one person in the middle of that unit at a 
desk and he or she could see the entire unit. And that's their 
theory on observation. That one person is dealing with inmates 
that are more violent than they were ten to fifteen years ago. 
I started in 1990, when there were a lot of white collar 
criminals, there were some RICO, those types of offenses. And 
now there are hard core drug dealers, gang inmates. It's a much 
different profile.
    Our theory is is that the penitentiaries back then, if you 
walked through Lewisburg, or Atlanta, or Leavenworth back 
twenty years ago, or fifteen years ago, and you walked down 
into the units, they had the high range tiers. There was a 
tier, sometimes six deep, or six high. There was an officer on 
every tier, not on the unit. And now you have one person, or 
two, for that same unit and that tier system. And when they 
went to these triangle units where you can see everything their 
theory was, ``Well, we will put one person in there and they 
can watch.'' And in some cases, I have to tell you, they vacate 
one side. They have a triangle unit here, they have a connector 
hallway, and they have a triangle unit here. And at night they 
will vacate one of those units. And so the officer goes from 
here, through there, through the hallway, and down into the 
other side. And they are supposed to monitor both sides all 
night long to make sure nobody gets hurt.
    It's not working. Anybody can sit here and say, ``Well, 
there's just a blip in assaults.'' Every time there's a blip in 
assaults that is one of us getting carried out the door. So 
when there is this little up tick, as they like to call it, an 
up tick in assaults, that means one of our guys just got 
carried out. And we do not appreciate it.
    Last year we testified at the Judiciary Committee and we 
testified here that they really should at least go back to a 
model of having two officers per unit. And work as a team. Just 
like you do with Capitol Hill Police. Just like you do with 
other law enforcement.
    Mr. Mollohan. That kind of feeds into the need for 
modeling, a need based----
    Mr. Glover. Right, but they are not looking at it that way.
    Mr. Mollohan. Well, what I am saying is, you can say, 
``Okay, you need actually during the night a correctional 
officer on both sides.'' So there would be disagreement about 
that need. But that is not a ratio guide to what your staffing 
needs are, your requirements are. That is a, ``We need this, 
and we need that,'' and then you build up from that how many 
officers you need for a particular institution. That is the way 
I understand they get their authorized number, that ``this is 
what we need'' process, and then they make their request for 
funding based off that as it is impacted by OMB. And so that is 
how we get up to an on-board versus authorized staffing level 
of 92 percent.
    Mr. Glover. Our issue with the ratios----
    Mr. Mollohan. And you are saying that that is not----
    Mr. Glover. Well it is not working.
    Mr. Mollohan. You disagree with that?
    Mr. Glover. We disagree with that. We believe that the 
ratio is the first step in bringing some sanity back to the 
process. Because like they told you today, and like you are 
hearing from us, you are going to add 14,000 inmates over the 
next two years. We told you that in 2005 and 2006 we cut 2,300 
positions. This past year we added 700 at the end of the year, 
and we are going to add 900 at the end of this year, and we did 
not add any the year before. So you are basically talking about 
21,000 inmates that have been put into the system with about 
1,600 staff added.
    Mr. Mollohan. I know, that is an impressive comparison when 
you get that on a chart.
    Mr. Glover. That is the problem. I mean, the big states all 
look at the ratios. They are 1 to 3, 1 to 5 in California, 
Texas, Florida, Pennsylvania, the larger systems. So that is 
why we are staying with that model.
    Mr. Mollohan. Okay. Mr. Wolf.
    Mr. Wolf. Thank you, Mr. Chairman. Thank you for your 
testimony. Were you here today when Mr. Lappin testified?
    Mr. Glover. Yes, sir.

                     WORK OPPORTUNITIES FOR INMATES

    Mr. Wolf. What do you see is the impact on the reduction 
with regard to the work opportunities?
    Mr. Glover. Well I can tell you at our facility, FCI 
Loretto, we used to have a UNICOR factory that ran electronic 
cable. We had about 500 inmates that worked in that factory. We 
ran two full shifts. And now we are down to less than 300, 235 
inmates working in that factory on one shift. Inmates have 
gotten in fistfights on who should have been laid off. So that 
causes a problem when you----
    Mr. Wolf. They wanted to work?
    Mr. Glover. Right. One inmate got laid off, the other 
inmate did not. And one inmate took, offense as to why he was 
laid off and the other inmate was not, so they got in a fight. 
So both of them end up in our segregation unit, which does not 
help anybody. I think part of the assault issue is when the 
Defense Authorization Bill passed with that language. We told 
Chairman Levin at the time that this was going to cause a big 
problem in the system. He said, ``Take it up with the Judiciary 
Committee.''
    Mr. Wolf. And I know Levin was a bit supporter of that.
    Mr. Glover. And between him and Congressman Hoekstra at the 
time, there was no getting around it. And so we have eaten it 
ever since, frankly. Our staff, there is nothing that I know of 
that keeps the place humming like 300 or 400 inmates getting up 
in the morning, going to main line, eating, and heading to 
work. And then when they come back up at lunch, they head back 
down, they work some more. They come back. They all kind of 
program themselves. They do not want to lose their jobs. You do 
not see as many incident reports from those inmates. You do not 
see violence.
    We had a riot at Bastrop, Texas one year where the inmates 
in UNICOR actually locked the doors and would not come out. The 
other inmates were egging them on to come out, and they would 
not cross, basically, out of the factory because they did not 
want to lose their factory jobs.
    A lot of those inmates send money home. As I started to say 
before, what we are seeing is a big drop in commissary sales, 
the inmate trust funds. So there are not a lot of inmate 
programs that can be paid for out of the trust funds because 
the inmates do not have the funds to buy out of the 
commissaries. And so then you deal with theft out of main line, 
you know, stealing whatever they can take out of there to go 
cook upstairs. And so you are dealing with that issue in the 
evenings.
    Mr. Wolf. How much would a prisoner have been able to save, 
to take out? Let us say they were in for six or seven years. To 
take out when they left?
    Mr. Glover. I can remember at least a couple of inmates 
releasing with up to probably $500 or $600 in the bank. Or they 
send it home ahead of time.
    Mr. Wolf. And now in order to purchase at the canteen their 
family has to send money to them?
    Mr. Glover. They would get basically $5 a month, or $5 a 
week. You could make a lot of money in UNICOR. But now what 
happens, they are put on base pay, or maintenance pay.
    Mr. Wolf. And in UNICOR, what would a prisoner leave with, 
if he worked with UNICOR for five years?
    Mr. Lowry. An inmate can actually make somewhere between 
$400 and $500 a month. A lot of that money, if they are not 
paying restitution or something such as that, a lot of them 
send that money home monthly, almost like child support if they 
have children. I mean, that is a fact. And, let us say they 
spend $30 to $50 a month in the commissary just to buy some 
cokes and some chips or whatever else to have back at their 
cell. The rest of it is going to sit in that account, unless 
they spend some money, because they have to pay for their phone 
calls. And there is a new true link system for inmates to be 
able to email, and they have to pay some on that. But the rest 
of it is going to be savings. So if they worked in there five, 
six years, or however long, they are going to be able to take 
all that money with them, other than what they probably sent 
out to their family or spent in the commissary.

                        REENTRY AND RESTITUTION

    Mr. Wolf. So Mr. Chairman, on the whole reentry issue and 
restitution, they were giving money to the individuals that 
they would give money to, their families, the email. It's 
pretty pathetic. I spoke to Senator Levin, too. I spoke to Mr. 
Hoekstra, too. I was not able to convince either of them.
    The last issue, we discussed prisoner radicalization, the 
need to know the number of inmates with gang affiliations. As 
representative of the workforce, what do you see with regard to 
the gang issue in general? And what do you see with regard to 
the problems with radicalization?

                                 GANGS

    Mr. Glover. We have far more gangs than we had five or ten 
years ago, I can tell you that.
    Mr. Wolf. Is it actually getting to the point, I have had 
people tell me that in some prisons, now this may be state 
prisons, but in some prisons they actually almost join the gang 
as sort of a form of self-defense before things get too far 
along?
    Mr. Glover. Well they congregate, essentially together. If 
you watch the dining hall, the dining hall is your best example 
of who is in what. We have at our facility a number of sexual 
offenders. They all hang out together for self-protection, 
basically. They eat together. They move together. They recreate 
together. And you see the same thing with the gangs. You see 
the different groups. D.C. sentenced offenders that we get will 
come in and congregate together. That is how the system works. 
Some of them are wannabes, they try to, they want to be 
something. We have some white pride guys that show up and they 
want to be an Aryan Brother, in the Aryan Brotherhood. So they 
will act tough, and they will want to go out and fight with 
somebody right away to prove that that is what group they 
should be with.
    So, I mean, you see a lot of these gang groupings now a lot 
more than we used to see, I think, with the federalization of a 
lot of the state crimes. We have ended up with that mix. And as 
the Director mentioned, with the criminal alien portion, I 
think last year you had asked us about the MS-13s. And yes, we 
have groups of them that have formed inside. Now, the Bureau 
tries to ship them out to different places and keep them 
separated if possible. But it is a challenge. The gang issue is 
a challenge.

                       RADICALIZATION OF INMATES

    Mr. Wolf. What about the issue of radicalization with 
terrorism recruitment? There was a Foreign Relations Committee 
report saying that a number of people who were radicalized in 
prisons, blond haired, blue eyed types, went to Yemen. And now 
they are living in Yemen and they are concerned.
    Mr. Glover. Well I know we went through a process when, 
several years ago, there was a very lengthy process of looking 
at the imams and I know the Director took a lot of heat and so 
did the Bureau overall for some religious items that they 
wanted to take out of the libraries and the chapels. They tried 
to get a handle on that. I think they lost in the end and they 
had to put a lot of things back. But I think they are screening 
a lot of the religious leaders that come in to do volunteer 
work. They are screened, I think, a lot more than they used to 
be. But the one thing you cannot stop is inmate on inmate. I 
mean, inmates talking to inmates in the housing units, or going 
around together. That one is tough thing to stop. I do not know 
if we see that it is prevalent. I mean, it does not seem to be, 
we do not seem to be having sit downs of those inmates, or 
specific inmates from those types of inmates. I do not think we 
are seeing that. We see more of the gang activity, I think, 
than we do that part of it.

                            RAPE IN PRISONS

    Mr. Wolf. Last issue, on the prison rape issue, the 
regulations were to go in effect with fed, state, and local, 
everybody else. But it has been delayed. How bad of a problem 
do you see the issue of prison rape? And you had mentioned you 
were only given a half an hour of training?
    Mr. Glover. Last year we got I think a half hour of 
training on the Act last year. And so----
    Mr. Wolf. And how bad of a problem do you see it in the 
feds but also overall knowing what you know about state and 
local?
    Mr. Glover. I know this. When I was Council President at 
Dublin there were six or eight staff prosecuted for abusing 
female inmates.
    Mr. Wolf. And that's prisoner on prisoner, too.
    Mr. Glover. Well that is the problem, I think that is the 
harder nut to crack. The staff seem to get caught. The inmate 
on inmate part is difficult because inmates do not want to come 
forward on other inmates.
    Mr. Wolf. How prevalent do you think it is?
    Mr. Glover. I do not think in our system that it is huge. I 
do not think it is a large number in our system. I think the 
people that go down that road, Tallahassee, Florida we had some 
issues, there were at least four or five officers that went to 
jail over that.
    Mr. Wolf. There was one that was involved in a shooting 
down there?
    Mr. Glover. Yes.
    Mr. Wolf. Had he been----
    Mr. Glover. He was part of that indictment.
    Mr. Wolf. And did the shooting have a bearing on that? Was 
that one of the reasons?
    Mr. Glover. Yes.
    Mr. Wolf. Did you follow this? Why do you not explain what 
that was.
    Mr. Glover. Well, essentially what happened was they had 
sealed indictments on five staff. They allowed them to keep 
working, which we found out about after the fact and got pretty 
upset about. There was a disagreement, from our understanding, 
and I will just say our understanding because I was not in the 
room and Bryan was not either. There was a disagreement about 
when to pick these people up from work, or when to actually go 
get them. And it was decided, either by OIG, the FBI, or the 
Bureau, that they would wait until they were at work, and then 
they would come and get them. And we feel that it was part of a 
parade, that this was a show arrest. ``Well, we are going to 
come in and we are going to take them off their posts in 
handcuffs, and show you not to do that.'' Well, unfortunately 
one of those staff had a firearm in a backpack.
    Mr. Wolf. And he shot an OIG guy?
    Mr. Glover. Yes. Yes, he fatally shot an OIG agent, and he 
was shot and fatally killed as well. It was a terrible 
incident. As a result of it, we now search our staff. We have 
metal detectors that we have to go through to go to work in the 
mornings that we in the Bureau of Prisons never had to have.
    Mr. Wolf. And they were all involved in basically----
    Mr. Glover. They were running some sort of ring with the 
female inmates at Tallahassee.
    Mr. Wolf. Well, thank you both. Thank you, Mr. Chairman.

                          VIOLENCE IN PRISONS

    Mr. Mollohan. Thank you, Mr. Wolf. Just one follow up 
question to Mr. Wolf's coverage of prison violence. Does the 
BOP solicit input from the AFGE on policies related to 
protecting staff from assaults by inmates?
    Mr. Lowry. Our contract allows us to negotiate with the 
agency on any change in any policy, practice, or procedure. 
Whenever they are going to make a change to a policy or they 
are going to propose a new policy, it gets issued out to the 
field and then we do generally look at it. If we see concerns 
with it we invoke our rights to negotiate. And at that point 
there is a time frame set up for us to get together. There was 
a lot of, I would say, back and forth on some of these over the 
last few years. But since there has been a change to the Chair 
of the FLRA, things have gotten a little better. But we do have 
a right to negotiate, to provide input and suggest changes, and 
to bargain in good faith. You know it works between both 
parties.
    Mr. Glover. Can I add in just on that? The one thing that, 
well there are several things. The problem we have is that some 
things are considered internal security matters by law. And 
that is what they will rely on when they do not want to listen 
to us, is, ``Well, that is internal security.'' If they like 
what we are saying, then that is fine.
    The other issue for instance is, after the murder in 
Atwater, we had asked for pepper spray for the officers. 
Actually, we put pepper spray, batons, or tasers. Whatever the 
three that they wanted to work with. We were not hung up on any 
given one, but pepper spray seems to be about the easiest to 
train on and operate with. Many states and many local county 
jails carry it daily and there is not a huge issue with it. 
They have been completely resistant to add that to our ability 
to simply keep an inmate off of you. And I know you have heard 
from your folks at Hazelton. Over and over we have nothing to 
fight these guys off with. And in a perfect world they would 
not attack us. But that is not how it works. And so, all we 
have asked for is something simple that will keep an inmate off 
of you for a few more minutes to where you can get help there. 
We have brought that up to them repeatedly.
    We had brought up the issue of stab vests. They bought stab 
vests for the people that wanted them. But then what they did 
is they created a policy that said if you request a stab vest 
you have to wear it everywhere. Even our officers who are on 
duty working at a training center being trained, and not inside 
the secure facility, are technically required by their policy 
to wear the vest. They made it so unworkable that the staff 
just turned them back in. I have no idea how much money was 
spent on that. But I bet you it is a lot, when you consider 
those vests are $300 or $400 apiece.
    So there are things that we wanted, or that we have asked 
for for safety measures. The two officers per unit, we asked 
them to start at the high securities. There's only eighteen to 
twenty high security prisons in the system out of the 115, with 
an average of six to eight housing units per. So let us say for 
the 2 to 10 shift, one shift you wanted to have two people in 
there. You are adding about, you are adding six positions. Now 
in the whole scheme of the Bureau of Prisons, twenty 
institutions, six to eight positions plus a relief, two more 
days of relief. There has got to be a way to sort that number 
out. And we just have not gotten there, over all this time.
    Mr. Mollohan. So you can talk but you do not necessarily 
get satisfactory results. Let me ask you, the Bureau of Prisons 
seems to be developing this strategy of special management 
units to try to get out the most difficult inmates to handle. 
How is that working? And how do you think it might work when 
fully implemented with additional special management unit 
space?
    Mr. Lowry. I think we testified about some of that last 
year, and I have talked with you recently with the group from 
Hazelton about this. What the Bureau of Prisons did is over the 
course of probably the last five years, starting with United 
States Penitentiary Atlanta, and then United States 
Penitentiary Leavenworth, and then United States Penitentiary 
Marion, Illinois, United States Penitentiary in Beaumont, 
Texas, they changed their missions. All of those prisons now, 
even though the older ones for National Archive purposes were 
still called United States Penitentiary, they are medium 
security level prisons. We have only brought probably two to 
three brand new United States Penitentiaries on board but lost 
the mission of six or seven, probably, in the same time span.
    The high-security type of population has not decreased in 
the Bureau. Now, Marion, Illinois was kind of like ADX 
Florence, the Supermax. Its mission was to house probably the 
most dangerous, most incorrigible inmate who could not be on an 
open compound at any security level, and they are locked down 
twenty-three hours a day. Marion had the same mission. When 
they changed Marion's mission, that was about 500-and something 
beds of those type of inmates. And they had no plan or 
initiative in place to replace it. What happened is, is the 
violence during that period of time, and you could see the 
spike even through the Director's testimony, that it greatly 
increased from 2006 probably on up to about 2009. Even last 
year when he testified, it was pretty much to the fact that the 
only security level he would say that really increased was the 
high security level. And their reaction was to take Lewisburg 
and get rid of the open compound high security inmates.
    Now, we had not brought any more on recently. So those 
inmates, the probably 1,200, had to go get put in some security 
level, or their security level was decreased to medium to fit 
them into the system if probably over a number of years they 
had not been violent. And then they created two units, one in 
Oakdale, Louisiana and one in Talladega at medium security 
prisons, to just take units and turn them in to these special 
management units.
    To me, the inmates that are in a special management unit, 
they want to call it programming. The officers that work in 
there, or the staff that work in there, will tell you there is 
really no programming. They themselves just judge the good time 
these inmates, and I am not talking about giving them good 
time. The good time they may have for the next two years in 
what they would call phase one, and then give them a little 
more time out of their cell in phase two over the next year, 
and then phase three a little more time. And then see if they 
could possibly put them back in an open compound. But they are 
the same inmates that because of the violence, or because of 
the riots they have been part of, or because of the type of 
assault with weapons on other inmates, or the types of assaults 
on staff, they belong in ADX Florence, Colorado. But there is 
no bed space available. So they started out with units, and 
when that was not enough they took one whole institution and 
then----
    Mr. Mollohan. Well, have we had experience with this long 
enough to know whether this strategy is beginning to work or 
not? Is it reducing violence in the other prisons?
    Mr. Lowry. I think the number is over probably 2008 and 
2009, when you asked the question earlier, probably are about 
the same numbers that have occurred. The only thing we do not 
know is when you determine how serious the violence is, you 
know, the disturbance on the yard, did they have to fire live 
round ammunition on the yard? And we would only do that, 
according to policy, to prevent the loss of life. Now, some of 
the things that occur with the weapons and that sort of thing, 
I do not think the violence has been deterred. I think what we 
did was at that period of time we took some of the most violent 
inmates that were already sitting in some of the special 
housing units, they were not even out in the open compound, 
they were locked down in our jail inside the prison and they 
moved them out. Well, now these places have filled back up.
    It may have deterred it for a short period of time. But 
that type of inmate----

                              OVERCROWDING

    Mr. Mollohan. There are two different things here. Number 
one, is the space available in the special housing units and 
special management units, to be able to implement the program? 
And number two is, if you cannot implement the program, is it a 
sound strategy for reducing violence on officers in the prison 
system? And I guess what I am getting out of your testimony is 
that there is really not enough space. It is still too crowded, 
too overcrowded, and there are not enough management units in 
order to tell. Is that right?
    Mr. Lowry. That is exactly what I am saying. But as you see 
the population expand, anywhere from 5,000 to 7,000 inmates in 
the numbers we are giving to you, that means that type of 
offender is increasing in our system as well. And we had not 
made any adjustments for them, and now we are having to react 
to it. Before these special management units were put on line, 
and then Phil wants to say something, is that they created 
these modified, alternate lock down units to try to deal with 
them first. And there were many institutions, including 
Hazelton, that had one of them, and they were staffing them 
with one officer. And then they started putting in regular SMU 
inmates, and it just turned into a mess. That is when the SMUs 
were created because officers were getting assaulted in there 
when they would open a door up for an inmate. They did not want 
to call it a special housing unit, where you had all these 
restrictions about policies that you were mandated to follow. 
So it was a free for all, and none of the policies mirrored 
each other from one another, and that is how they dealt with 
it.
    I think it is working at Lewisburg, but I think they are 
going to continue in another year to build another one, just 
like Thomson was testified to. We were thinking that would be 
open compound and alleviate some of maybe the overcrowding for 
the population at the highest security level. But if it is 
going to turn into an SMU, that does nothing for our really 
open compound United States penitentiaries.
    Mr. Mollohan. Well, except that it takes a lot of the most 
difficult inmates out of those populations and into another 
population. So it should have some benefits?
    Mr. Glover. 1,600 beds.
    Mr. Lowry. One more thing about these SMUs is when you have 
more violent inmates like that locked down by themselves, they 
do not want a cell mate. In an open compound, where you say 
that you are going to have two in a cell or three, they are so 
violent you can not even house anybody so----
    Mr. Mollohan. They are going to use Thomson for that 
purpose. It actually is only 1,600.
    Mr. Glover. There is not a real chance there to double bunk 
if you are going to go to an ADX environment at that facility. 
The only other thing I just wanted to add quickly, and I know 
our time is about up, Lewisburg was made an SMU. They had at 
least two stabbings in November, one with a spear out of a 
housing unit door. The officer was starting the feed and as he 
put the food slot down to put the food trays up, the inmate had 
crafted out of paper, rolled and rolled and rolled tight, and 
then he put a piece of the bedspring in the one end. And he 
actually stabbed an officer through that slot, it is on camera, 
into his thigh, and almost got his artery. So whether you are 
in an SMU, or whether you are in a regular SEG unit, at this 
point the way the population is going it is just not a good 
situation.
    Are they working? They might make it a little better at one 
facility. But Lewisburg is not as good as it was. And again, 
like Bryan was saying, they are not staffing them up. The 
Supermax at one time had five officers per range. If you went 
down range you had five officers with batons before you moved 
an inmate and brought him out of a cell. They are trying to get 
away at these SMUs with maybe two, sometimes three. They will 
put a three-man hold on an inmate, where three have to go down. 
But it is still a staffing problem. It goes back to that.
    Mr. Mollohan. Well, do you all have anything else that you 
want to speak to before we bring the hearing to a close? This 
is your opportunity.
    Mr. Lowry. Sure. Our issues are not going to change much. 
Until the funding increases here, and then sound initiatives 
are put into place, there is going to be violence in prison. 
There has been a lot of issues talked about, whether it is on 
staff or our mission is to make sure that these inmates are 
safe and we treat them humanely and protect the public, and 
keep them incarcerated inside. Our staffing ratios have to 
improve. It is detrimental to our ability to manage the 
populations, as well as to keep ourselves as safe as possible. 
The numbers are responders. At any given time anything can 
happen in a prison setting. And just in my opinion, the higher 
security level the more dangerous the individuals are 
incarcerated there, and the more violent they probably could 
become. Not that incidents cannot occur at any level, because 
they most certainly have and they still do. But your numbers 
and your ratios are going to be at the higher levels. But the 
staffing ratios at every level right now, they have at camps 
almost got down to where you just have cameras watching 
inmates, which is very unsound to the communities they are in. 
At low security basically cameras and sometimes you have one 
correctional officer that used to work one unit, with 150 
inmates to one on the off shifts. You may have some additional 
correctional workers there in the daytime, but that 
correctional officer is running the unit. And now you have this 
correctional officer working two units. And in some places they 
have worked three by themselves. And you are talking 450, 500 
inmates.
    When you bring up things like the Prison Rape Elimination 
Act and other things about our concern to do that, I can as an 
officer only be in one place at one time. You have gotten me 
taking on more than anything I have ever done before as an 
officer moving around the unit.
    Mr. Mollohan. It sounds like a lot of territory to cover.
    Mr. Lowry. How do you expect me to watch it all? The 
inmates know where I am at any time, if they want to move 
contraband or even go further with more acts of violence 
against other inmates. They have got the ability to do it. We 
have lost our supervision. And I really believe we have lost 
our way inside the Bureau.
    Now, I do not believe anybody, from the Director to anybody 
else, wants to see anybody get injured or hurt, especially 
staff. But if we can not supervise our population, we cannot 
stop them from manufacturing weapons, because they are doing 
it. From all kinds of means, as Mr. Glover said, but they have 
access to all kinds of plastic, all kinds of other things. 
Drugs, other contraband such as making homemade alcohol. I 
mean, this stuff is prevalent at almost every institution 
because we are not out where we are viewing everything like we 
did before when we had more staff.
    But these staff are also, given us the ability in case an 
inmate aggressively attacks the staff or a disturbance occurs, 
our response time is quicker. Our response time is slower now 
with less staff. And there are some shifts where you just have 
a skeleton crew. Where in the daytime they will say, ``Oh, our 
ratios are great.'' Because you have 200 staff on day watch. 
But you get to a low security prison, and you might have 
thirteen staff now at that institution with 1,700 inmates.
    Mr. Mollohan. Okay. Thank you. Thank you, Mr. Lowry. Mr. 
Glover, do you have anything you would like to add?

                             DRUG TREATMENT

    Mr. Glover. Just a couple of things. I know what came up in 
the hearing this morning, there was a little bit about drug 
treatment. And I heard a ratio of 1 to 25.
    Mr. Mollohan. Mm-hmm.
    Mr. Glover. We have 1,400 inmates at Loretto, and we have 
one drug treatment specialist. So I do not know if that is how 
many are supposed to be sitting in group together, or that is 
certainly not the ratio of drug treatment specialists to the 
inmate population, I do not think. I am not sure how it came 
out this morning. But I wrote that down because I know we----
    Mr. Mollohan. That is the way it came out in my mind.
    Mr. Glover. Well, you know, like I said, it may be one and 
they run a group of twenty-five inmates at a time, maybe. I do 
not know. But that is certainly not the ratio.
    Mr. Mollohan. That would be a lot of groups.
    Mr. Glover. I am trying to be kind.
    Mr. Mollohan. Well, you do not want to confuse the record. 
It is----
    Mr. Glover. No, I am trying not to do that. Thank you, Mr. 
Chairman.
    Mr. Mollohan. I think you made it clear to begin with.
    Mr. Glover. But that is a real question for us because I 
understood that originally to be funded out of a separate----
    Mr. Mollohan. But I think what he was saying, and this 
would be an extreme example. If he had 1,400 inmates and I do 
not know how many of those, what percent would need drug 
treatment. But what percent? Fifty percent?
    Mr. Glover. I am going to say probably a majority with the 
population that we have with drugs and alcohol.
    Mr. Mollohan. Well, his point was that there would be a 
waiting list, but they would maintain that 1 to 25 ratio in the 
treatment environment. So they would not have anymore, so there 
would be----
    Mr. Glover. I just think that is----
    Mr. Mollohan [continuing]. 1,375 people waiting for----
    Mr. Glover. Yeah, there are a lot of people waiting----
    Mr. Mollohan [continuing]. The next class.

                  MONITORING OF INMATE COMMUNICATIONS

    Mr. Glover [continuing]. For a little help. And the only 
other issue that I thought might need to be clarified, there 
was a discussion about communication issues and monitoring 
mail, telephone, and visits. Well I do not think we are doing 
that great on telephone monitoring. We have a telephone monitor 
at certain facilities. Sometimes that person is pulled to work 
housing units, other areas of the prison.
    Mr. Mollohan. Is it random monitoring? Is it random?
    Mr. Glover. Yes, it is. Now there are some alert lists 
where you will get certain inmates that 100 percent of their 
calls have to be monitored. But that is not all the inmates. 
And so the rest of it is all scattered, scatter shot.

                           EMAILS OF INMATES

    The other thing is, they just created here in the last year 
this true link system that is allowing inmates to use email. 
And we have heard, not in all cases, but we have heard from 
some of our locals that they have a concern over the security 
of the system. BOP is saying that it is a locked in, secured 
system where the inmates send the email, it sits for twenty-
four hours, the computer, I guess, has words that will key, 
supposedly, although----
    Mr. Mollohan. Screen it?
    Mr. Glover. I guess screen the mail, and then it will be 
sent. And then the message will come in. I have been told by at 
least three or four institutions that they are into the 
thousands on these emails. And so----
    Mr. Mollohan. Backlogged?
    Mr. Glover. Well just not monitored. I mean, just, that are 
going to go out and who knows? Our only issue with bringing it 
up to the Committee is we just want it on the record because, 
as with the letters that came out of ADX and went to Spain, as 
with the phone calls that have occurred that Mr. Ruppersberger 
and others were very concerned about last year with setting up 
hits on staff and other things that occur, you know, running 
criminal enterprises----
    Mr. Mollohan. Oh, we will follow up.
    Mr. Glover [continuing]. Well, now we have this on top. And 
again, we have been telling you about the staffing levels for 
three years and we created a new system to give more 
communications. And I, you know, I understand what they are 
trying to do. You know? An inmate that communicates with their 
family members is supposed to be better at progressing back 
into society and all that, and that is great. But it does 
create at some level a management nightmare. So we thought we 
should at least bring that to the Committee's attention.
    Mr. Mollohan. Okay. Thank you. Well, thank you all very 
much for your appearance here. Thank you for the good work you 
do. I can tell you, it gives us an insightful perspective on 
the Bureau of Prisons and very much complements our oversight 
of the Bureau. And it also lets us know where we can be helpful 
to those who are really on the front line doing this job. And 
it is a tough job, you do a great job at it, and we appreciate 
your letting us know what your special needs are. So thank you 
very much for your testimony. The hearing is adjourned.
    Mr. Glover. Thank you, Mr. Chairman.
                                          Thursday, April 22, 2010.

            OFFICE OF JUSTICE PROGRAMS (OJP) FY 2011 BUDGET

                                WITNESS

HON. LAURIE ROBINSON, ASSISTANT ATTORNEY GENERAL
    Mr. Mollohan. The hearing will come to order, and we will 
all come together. Good morning. We are pleased to welcome the 
Honorable Laurie O. Robinson, the Assistant Attorney General 
for the Office of Justice Programs. Ms. Robinson, this is your 
first appearance here since your confirmation in November. But 
it is not your first time testifying before Congress on the 
Department of Justice grant programs. And you bring with you a 
wealth of experience from many years in the same position 
during the Clinton administration as well as other substantive 
positions related to the field of criminal justice. And the 
Department is lucky to have you back. Welcome, and we 
appreciate having you back.
    The Subcommittee has made increasing investments in the 
Office of Justice Programs over the last few years, including 
$2.77 billion through the American Recovery and Reinvestment 
Act, and $3.35 billion in the fiscal year 2010 CJS bill, an 
increase of $200 million, or 6.4 percent, above the prior year 
level. And we look forward to working with you to achieve 
significant progress in the areas that these increases 
represent.
    Last year we held a series of hearings focused on prisoner 
reentry and justice reinvestment with a focus on evidence-based 
practices that are helping to reduce incarceration and 
recidivism and that are giving people a second chance at a 
productive life. Two of the major lessons we learned from those 
hearings is first there is good evidence about what works and 
we should be doing more to disseminate that information to 
practitioners around the country and use federal funding to 
help leverage evidence-based approaches. And second, we need to 
keep investing in research that will help us further refine 
what works and help us discover new, even better strategies and 
approaches.
    There are a number of new initiatives proposed in your 
budget that seem to be informed by these lessons and we will 
want to hear from you in more detail about how they would work. 
There are also proposed cuts to some existing programs and we 
will want to ask you about the rationale for that.
    I now call on Mr. Wolf and your testimony will proceed 
after Mr. Wolf has an opportunity to make a statement. Mr. 
Wolf.
    Mr. Wolf. Thank you, Mr. Chairman. Ms. Robinson, we want to 
welcome you and appreciate you being here today. We support a 
lot of your programs at DOJ that assist the state and local 
government.
    I am concerned about the decision to divert funding away 
from some of the critical improvement programs. Prescription 
drug monitoring, this problem is growing unbelievably around 
the country. The prison rape prevention, I think Eric Holder 
when he leaves office will go away feeling great disappointment 
in himself in the fact that the failure for the administration 
to deal with the prison rape thing. Every day this issue is 
growing and growing, and yet the administration is just kind of 
almost walking away from it. The methamphetamine enforcement. 
So some of those concern me.
    Finally, your budget actually reduces funding for victims 
of trafficking. I do not understand; this area, the Washington, 
D.C. area now is becoming actually a center for trafficking of 
victims. We think in terms of Thailand or Albania. But it's now 
Virginia and the District of Columbia. And so we will have a 
lot of questions that will get into that area. But I do not 
know why the administration would want to reduce the funding 
for victims of trafficking.
    So, but anyway we look forward to your testimony and we 
will ask some questions. Thank you, Mr. Chairman.

                         FY 2011 BUDGET REQUEST

    Ms. Robinson. Chairman Mollohan, Ranking Member Wolf, and 
certainly distinguished members of the Subcommittee as they 
arrive, I am very pleased to be here today to talk about the 
President's budget request for the Office of Justice Programs. 
I had the privilege of coming before this Subcommittee many 
times when I served as Assistant Attorney General in the 
nineties. And again as a private citizen, as you may recall, 
three years ago at your invitation. I am very pleased to be 
back at OJP and very honored, Mr. Chairman, to appear before 
you today.
    OJP's mission is to help reduce crime and improve the 
administration of justice at the state and local level through 
innovation, research, and programs. The President's budget 
request for fiscal year 2011 includes almost $3.1 billion to 
support OJP's activities. The request reflects four themes that 
I view as central: strengthening partnerships with state, 
local, and tribal stakeholders; restoring the role of research 
in criminal and juvenile justice policy and practice; promoting 
evidence-based approaches to crime and violence; and ensuring 
fairness, transparency, and effectiveness in grant 
administration.
    To take the first of these, one of the reasons I was 
willing to return to OJP was to help the Department reestablish 
strong relationships with its state, local, and tribal 
partners. I view outreach by OJP to the field as crucial. And 
very early in my tenure last year I held a series of listening 
sessions with our constituents to hear from them what the 
agency was doing well and what we needed to be doing better. 
The centerpiece of our commitment to states and communities on 
the funding front in my view is the Byrne JAG program, a vital 
source of funding for state and local law enforcement. The 
President's budget request for fiscal year 2011 includes $519 
million for this critical program, the same amount Congress 
appropriated in the current fiscal year.
    A second of my goals in returning to OJP was to help 
restore the role of science in our work in criminal and 
juvenile justice. In an era of limited financial resources it 
seems to me we have got to employ smart on crime approaches. 
This means learning as much as we can about what factors 
contribute to criminal behavior and what programs work in 
reducing crime. In short, we need a robust research program, as 
you mentioned, Mr. Chairman. And that is uniquely a federal 
role. To support that, the President's budget calls for a 3 
percent set aside of all OJP grant and reimbursement funds. 
That is in addition to amounts requested for OJP's research 
evaluation and demonstration program and the criminal justice 
statistics program. All told, $189 million is requested for 
research, evaluation, and statistical activities in fiscal year 
2011.
    Third, a corollary to OJP's role in providing basic social 
science research is helping states and localities put into 
place crime fighting strategies that work, that are based on 
evidence of effectiveness. That, in my view, is critical. The 
President's budget request thus dedicates funding to an 
evidence integration initiative that would assess our 
understanding about what works in reducing and preventing 
crime. It would also help us determine how to use that 
information to fight crime more effectively. Two important 
elements of that would be an online ``what works'' 
clearinghouse, that you may remember, Mr. Chairman, I suggested 
when I testified back in 2007, and a diagnostic center or help 
desk, as I call it, to assist jurisdictions in accessing OJP 
resources, technical assistance, training, and how to implement 
evidence-based approaches.
    The President's budget also proposes a number of programs 
that would promote evidence-based practices. These include 
funds for smart policing and smart probation initiatives that 
link research to practice. $37 million would go toward a 
comprehensive initiative to address children exposed to 
violence. $12 million is also proposed for a gang and youth 
violence initiative.
    Finally, as we work to support our state, local, and tribal 
partners we have a crucial responsibility to be good stewards 
of federal funds. Last year OJP made almost 3,000
    [Clerk's note.--Later corrected to ``3,900.''] awards under 
the Recovery Act. I am proud that the Justice Department was 
the cabinet agency with the fastest rate of Recovery Act 
awards. We got 99 percent of our funds out the door in seven 
months. In spite of that significant increase in grant 
activity, OJP has improved its processes for ensuring open and 
fair competition. And I want to tell you I take that very, very 
seriously. In addition, I have insisted that we post 
information about all our grant awards on the Web.

                         FY 2011 BUDGET REQUEST

    In conclusion, Mr. Chairman, with this budget OJP looks 
forward to working with Congress and this Subcommittee to 
ensure that public funds are used effectively and transparently 
to promote smart on crime policing. Tough choices needed to be 
made in this process in this tight budget year. I know there is 
not agreement on all the offsets proposed in this budget, but I 
am very pleased to have the chance to be here today to talk 
with you about it.
    And I am now happy, of course, to answer your questions.
    [The information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
                     THE PURPOSE OF JUSTICE GRANTS

    Mr. Mollohan. Thank you, Ms. Robinson. Just to help frame 
the questions that we will have about various existing and 
proposed grant programs, I would like first to ask you to 
elaborate on a more philosophical question about the basic 
purpose of the Justice grant programs. And I noticed you have 
implemented an OJP-wide evidence integration initiative. Let me 
ask you, other than to supplement the criminal justice budgets 
of state and local and tribal law enforcement, and the related 
budgets of nonprofit organizations, why do we need Department 
of Justice grants?
    Ms. Robinson. Well, that is a very good question. And I 
think, stepping back, one needs to reflect on what the federal 
role is vis-a-vis state and local criminal justice. Because as 
a student of this area over many years, I think we can look 
back at the President's Crime Commission report in 1967 which 
talked about the federal role in leadership in this area. What 
it talked about and it is recognized that more than 90 percent 
of the criminal cases in this country, of course, are handled 
at the state and local level, not at the federal level. So 
what, it asked, is the federal role here? And what that 
Commission's report talked about more than thirty-five years 
ago is still true today. And that is that the federal role is 
really about promoting innovation. It is something that no one 
state or locality can do, but the federal government is 
uniquely capable of doing. And OJP's predecessor agency, LEAA, 
and OJP have done, I think, a tremendous job over the years in 
doing that.
    Let me give you a couple of examples. The bullet proof vest 
came out of LEAA's research. The victim witness units that are 
now prevalent across the country came out of work from LEAA. So 
that would be one example. Developing knowledge about what 
causes crime and what interventions can help stop crime. That 
is something, again, no one locality can do, but funding 
research in other words. Diffusion of that research, the ``what 
works'' clearinghouse idea of spreading knowledge would be 
another area. Collecting and disseminating statistics about 
crime. No one city or state can do that on a national level, 
the federal government can. Another area is training and 
technical assistance. This is the best spent federal money, in 
my view, of anything we do at OJP, is that training and 
technical assistance. And it is a very tiny percentage of the 
overall budget, but it is some of the best spent federal 
funding. So these are unique federal roles.

                       EVIDENCE-BASED APPROACHES

    Mr. Mollohan. Obviously you feel that we could better 
target funding to evidence-based approaches, and rely on that. 
I mean, your creation of the evidence integration initiative. 
Why do you not talk about that a little bit for the Committee 
and elaborate?
    Ms. Robinson. Yes, I was pleased in your opening statement 
that you talked about the importance of building knowledge, and 
the research in the reentry area in particular. And I think in 
the last decade the criminal justice field has become far more 
sophisticated about understanding not just the academic side 
but that the practitioners in the field are enormously more 
sophisticated about understanding the need to know what works. 
And part of it is driven by the tightening of resources, and 
part of it is driven by the much greater sophistication of 
practitioners many of whom, you see police chiefs for example 
across the country, including my colleague here who is the 
Director of the COPS office, who have advanced degrees. Who are 
here and bring tremendous knowledge to their work. And they 
know that data-driven approaches, research-based approaches can 
make the difference between being effective in addressing crime 
and not.
    When I returned to OJP one of the reasons I was willing to 
do this is because I think it is so important to cross the 
divide between academia and practice and policy. And I thought 
there was much more that we could be doing in government and in 
OJP, in particular. What we are doing with the evidence 
integration initiative, or E2I as we call it, everything in 
government having an acronym, is to encourage greater research, 
yes. But also application of research into the programs that 
are funded at OJP and greater generation of knowledge. We also 
want to be distilling information from research and translating 
that better for the field. There is a lot of information that 
we have learned from research that is sitting in academic 
journal articles. Busy police chiefs and busy practitioners do 
not have time to read those journal articles. We have got to 
distill that information and get it out to the field, and that 
was my idea behind this ``what works'' clearinghouse.
    Mr. Mollohan. I would like for you to apply that in the 
real world, with this example. I have funded, or earmarked, I 
notice that was among your cuts, these earmarks. A program in 
Monongalia County, West Virginia which has migrated to some of 
the surrounding counties just because the law enforcement 
community has done it. But to achieve better interoperability 
of communication and therefore better policing. We have talked 
about communication and interoperability here for years. And it 
seems to be an elusive, and perhaps because it is very 
expensive, but an elusive goal.
    But I visited with them over the district work period and 
it is clear that they are really moving forward. It is clear 
that they are really trying to reach out for all of the 
information, and through resources at their fingertips. But it 
is also clear that it is very difficult and it certainly falls 
short of being totally successful. And in sitting there talking 
with them, and this was a group, the principal fundee, the 
beneficiary of the grant which was the police chief of the City 
of Morgantown. And the sheriff and all the surrounding counties 
were there and even, I mean all the surrounding communities 
within Monongalia County were there. And then there was even a 
representative from, I had a meeting the next day and there 
were representatives from other communities.
    But they had gone really far without someone who really had 
this technical capability and be able to pull it together. And 
some of the issues they were dealing with were incompatibility 
of systems, the failure of different systems to overcome that 
incompatibility with patching or whatever. And I was sitting 
here listening and I was thinking, ``Well, there is some 
proprietary issues that are at play, here.'' There is, you 
know, some competitiveness at play, and our system is better 
than that system. And, you know, you cannot change the system, 
or you cannot patch the system without, you know, all this. 
There just seemed to be a whole lot. And I was sitting there 
thinking, ``Wow, these people technical assistance. They need 
somebody to define how to do this.''
    Ms. Robinson. Right.

                           DIAGNOSTIC CENTER

    Mr. Mollohan. So how would what you are talking about here 
translate into the real world? And where do these kinds of 
folks plug into that kind of information?
    Ms. Robinson. Well, that is a really good question. One of 
the things besides the ``what works'' clearinghouse that we 
have proposed is what we have called a diagnostic center, or 
help desk. So those folks could call the help desk, in which we 
would have a live person or set of persons, or they could come 
in via the web, via email, and ask, put their questions to 
them. And these individuals would not be, probably, skilled 
enough in those technical questions. But they would serve as an 
effective traffic cop to send them to the folks in NIJ, 
probably, in the part dealing with technology, who could either 
answer those questions or hook them up with the real experts--
who probably would not be on staff but part of our technical 
assistance teams on contract or with a grantee who could either 
help them via telephone, or via email, or even go onsite to 
help. So it would really be that kind of handoff.
    But it is exactly the kind of thing that the federal 
government, through the federal criminal justice assistance 
program, should be providing. If grant funds are going out 
there, but they cannot actually make it work, what is the 
point?
    Mr. Mollohan. Is this what you are talking about----
    Ms. Robinson. Yes.
    Mr. Mollohan [continuing]. When you are talking about 
evidence-based approaches, and the help desk----
    Ms. Robinson. Yes, to----
    Mr. Mollohan [continuing]. To transfer this information 
based on some determination of best practices and modeling and 
prototyping?
    Ms. Robinson. Right. It may not be research-based per se, 
but more actually kind of technical assistance and best 
practices, yes.
    Mr. Mollohan. Well this communication area is really 
important and I am incredibly impressed with how far they have 
come on their own. The town of Grandview can go online and 
immediately access the sheriff's department records and 
determine if there is a history there with regard to an 
individual, for example, and is it a recent history, is it an 
old history? What kind of history is it? And it is really a 
powerful system. And they have connected with an adjoining 
county. It happens to be my home county, Marion County, with 
the sheriff's department. But visiting my county the next day, 
the sheriff's department was connected with a proprietary 
communications system. But the chief of police had another 
system and they could not communicate.
    Ms. Robinson. Mm-hmm.
    Mr. Mollohan. And they talked about how difficult it would 
be to communicate. That is not a good thing.
    Ms. Robinson. No, no, and----
    Mr. Mollohan. It is a good thing to have a lot of 
providers, I think, out there.
    Ms. Robinson. Right.
    Mr. Mollohan. But it is not a good thing for them not to be 
able to communicate.
    Ms. Robinson. No, absolutely not. And these 
interoperability issues have been such an obstacle in the 
criminal justice system. With new technology, and I am not the 
best person to describe that new technology.
    Mr. Mollohan. Yes, but you are the best person to talk 
about the processes to get at these issues.
    Ms. Robinson. Yes, exactly. Right. I think you have to be 
under thirty to understand this stuff. But I do know on the 
process that we have ways of overcoming that. And I think some 
of these new proposals can help us get a long way there.

                        WHAT WORKS CLEARINGHOUSE

    Mr. Mollohan. Okay. Well elaborate on the clearinghouse----
    Ms. Robinson. Yes.
    Mr. Mollohan [continuing]. And the help desk. Elaborate on 
that.
    Ms. Robinson. The ``what works'' clearinghouse, as I said 
before, as I looked back on what we did with OJP in the 1990's, 
after I left OJP I felt, and I think it is often easiest to be 
critical of oneself and what you did or did not do in a certain 
setting, I felt that one thing that I had not done sufficiently 
was work in this area to convey information from research. And 
in subsequent years, as you may recall, I went on and worked at 
the University of Pennsylvania in this area of evidence and 
best practices, and trying to translate for practitioners and 
policy makers. And I thought a great deal about what more the 
government could be doing here. And as I said during my 
testimony in 2007 I felt that one thing could be something like 
this clearinghouse.
    So we have been thinking a great deal about this at OJP in 
our evidence integration initiative. And the way that it would 
work is to look for what scientifically rigorous evidence has 
been found in different topical areas. People could access this 
via the Web and we would have that information available. Then 
the diagnostic center would be a separate operation that would 
be staffed by individuals. And as I said before, it could be 
accessed either by telephone or by email.
    And let us take a specific example. If I were the mayor of 
Des Moines and I had a problem with youth violence, I might 
first go to the clearinghouse, to the ``what works'' 
clearinghouse, to get some information more generally about 
what information I might access about programs. Once I had read 
that, though, I might say, ``Well, I really want some help on 
how I would actually go about pursuing this.'' I could then 
call the help desk and say, ``Well, I would like to pursue some 
of these gang programs,'' as an example. ``How would I go about 
this?'' The help desk, then, might give me advice on pulling 
together a strategic planning team within my jurisdiction, 
within my city, and suggest that I call some business leaders, 
criminal justice leaders, the head of probation, my police 
chief, maybe the faith based community, other folks to the 
table for some planning sessions. They might also have somebody 
from OJJDP go out and sit down with that group. We might have a 
consultant go out. That consultant might be a peer kind of 
mentor help. Maybe Denver has undertaken something like this, 
and we would have somebody from Denver go in and say, ``Here is 
how we did it out in Denver.'' So that would be more 
involvement than just a phone call.
    Mr. Mollohan. What is the scope of the topics that people 
could call in on? Would it be from how you deal with reentry 
issues and recidivism issues to the interoperability questions 
that I referenced?
    Ms. Robinson. Yes, it could be a broad scope. And I also 
envision, I know people have asked how many inquiries could you 
handle? I think it could be a whole scope of things because I 
envision somebody might also call up and say, ``When is your 
Second Chance solicitation coming out?'' We will say it is 
coming out Tuesday. So some of these will be very simple 
questions and some of them will be very complex.
    Mr. Mollohan. Yes. Well surely the Department is getting 
these inquiries today?
    Ms. Robinson. Of course.
    Mr. Mollohan. How are they handled today differently than 
what you are proposing?
    Ms. Robinson. Well, the simple questions are handled all 
the time. We get calls, in fact dozens of calls everyday, 
``When is the Second Chance solicitation coming out?'' Those 
calls are handled all the time. The other kinds of calls are 
handled in a variety of different ways. And many of them, for 
example, will call about, ``Can you help on youth violence?'' 
We will more readily say, ``Here is a solicitation coming 
out.'' Or, ``Here are applications that you could pursue.'' But 
we probably will not be able to get into it to this degree in 
an organized fashion of assistance in this way.
    I also am hoping that the Help Desk can serve in a better 
way as a road map for that mayor about accessing the variety of 
different programs in the entire Justice Department. I think it 
is unfair to your constituents to have to know where the School 
Resource Officers programs are in the COPS office, where 
programs are in the Office on Violence Against Women, in OJJDP, 
in this part of the Office on Victims of Crime. It is a very 
complex set of programs.

                        EVIDENCE-BASED SOLUTIONS

    Mr. Mollohan. Well when you talk about evidence-based and 
developing programs, researching programs on the basis of 
evidence, does that imply that you are going to have evidence-
based solutions to these inquiries? I have this community, we 
have a particular gang problem, or we have a particularly high 
volume of returning incarcerated people, we have a recidivism 
problem, we have a reentry problem. What are best practices? Is 
the person at your help desk going to turn around to the file 
cabinet and pull out, ``Okay, in this situation well here is 
the best practices for that.'' Or if someone calls on the 
interoperability question and says, ``How do we link this XYZ 
Company's communication and data program that the sheriff 
really likes with the ABC Program. How do we link those 
together? Both of them are in love respectively with their own 
program, but their programs cannot communicate. Are you going 
to be able to turn around and say, ``Well, we have researched 
that and here is where you get the patch.'' Or----
    Ms. Robinson. That is definitely the goal. I would make 
this caveat. There are a number of areas where we do not yet 
have research. And so in some areas, I will give you an 
example: For truancy, we do not have a lot of evidence yet. So 
we will be very clear. ``Here is what we know. We do not have a 
great deal yet in X area.'' But yes, that is definitely our 
goal.
    Mr. Mollohan. And your request is $6 million----
    Ms. Robinson. That is correct.
    Mr. Mollohan [continuing]. For this? And what is the $6 
million for?
    Ms. Robinson. Well, the $6 million would be for, part of it 
for the personnel to be staffing it and part of it would be for 
assembling the information.
    Mr. Mollohan. Okay. Personnel, it is the personnel costs?
    Ms. Robinson. Yes.
    Mr. Mollohan. Okay. Mr. Wolf.

                     PROGRAM CUTS AND ELIMINATIONS

    Mr. Wolf. I am a little suspicious when you talk about the 
evidence-based issue. When I, one of the questions here is your 
budget request includes an emphasis on evidence-based approach 
to fighting crime. Evidence-based? How has your evidence-based 
approach affected your decisions to eliminate or significantly 
reduce funding for these programs? The Prescription Drug 
Monitoring Program? My sense is the evidence that Congress was 
interested and the administration was not. You thought maybe 
Congress would put it back so you took it out. The next 
program, the same thing would hold true. The RISS Program, we 
have had a lot of law enforcement people, evidence-based, write 
us about this and yet you have reduced that. The Prison Rape 
Prevention and Prosecution Program, which was my bill with 
Bobby Scott and Senator Kennedy and Senator Sessions in the 
Senate. The evidence is so evidence-based it is unbelievable 
that prison rape is bad. And yet the administration, and I am 
going to have a question, is reducing that. So the evidence 
proves that it is bad, the evidence proves that it is a 
problem, and yet the evidence-based program means that you are 
reducing the problem. The National White Collar Crime Center, I 
guess the evidence-based is that Congress is interested in it 
but the administration is not and you think it might be put 
back in so we have reduced it. And you can just kind of go on.

                    PRISON RAPE ELIMINATION PROGRAM

    Congress affirmed its duty to protect incarcerated 
individuals from sexual abuse when it enacted a prison rape 
program. Since then National Prison Rape Elimination Commission 
has studied and studied and studied and studied it. The cause 
of sexual abuse in confinement, the development of standards 
for reduction in sexual crimes. And set in motion a process 
once considered impossible, the elimination of prison rape. And 
now the Justice Department is cutting it. Why are you cutting 
the money for prison rape?
    Ms. Robinson. Mr. Wolf, I actually share your concern about 
the sexual assault issue in our prisons. I served on the Vera 
Prisons Commission in 2005 and 2006. Pat Nolan was a member of 
our Commission.
    Mr. Wolf. I work closely with Pat.
    Ms. Robinson. Yes, and I know he served at that time on the 
PREA Commission. He and I have had many conversations about 
this. I actually admire your leadership on this issue and I 
wanted to fill you in on the work that OJP is doing in this 
area.
    Mr. Wolf. But the reduction and the fact that the Attorney 
General is kicking this can down the road for another year, it 
is almost every time I heard a report, there is another rape 
somewhere in a prison----
    Ms. Robinson. Mm-hmm, right.
    Mr. Wolf [continuing]. Which happens more than a lot of 
people know. And I say, ``What does the Attorney General think 
when somebody gives him a memo that says in Prison X in X state 
this took place to a young man or a young women.'' What does 
Justice think? Justice, Justice, Justice. It is called the 
Justice Department. That is not justice. And the fact is you 
ought to go back today and just say, ``Hey, Mr. Holder, I think 
we made a mistake. Let us plus this thing up, get the regs out, 
and move this thing.'' Because the prison wardens will never 
want to do this. They will give you reasons over and over. And 
the Bureau of Prisons will give you the fifteen reasons why it 
is a problem. And the prison director in X state will give it 
to you, and the locality will give it to you. But during all 
that time, and there has even been stories of people that have 
been told if they do not cooperate they are going to be put in 
a cell with this big guy or something. And I just do not 
understand it. So I think the best thing you can do is just to 
go back and say, ``We made a mistake. We had a hearing today 
and Mr. Wolf raised it again. And I think we have got to put 
those regs out, get them implemented. We do not care what the 
prisons say, the wardens say anymore. We are going to deal with 
this issue.'' And I just do not understand it.
    The Attorney General docked it the last time. But is that 
evidence-based? And you do not have to answer this, because it 
is not evidence-based. Because the evidence-based is that 
prison rape is a growing problem, a bigger problem, and yet 
this administration is doing nothing about it.
    Ms. Robinson. Can I just share with you that today we are 
putting out from OJP a solicitation for a prison rape resource 
center, with our current year money. We are very committed to 
putting out resource guides and toolkits to provide the states 
with information about how to deal with this problem. We are 
very committed to working on this.
    Mr. Wolf. Somebody once said if you really want to know a 
person's priorities, look at the checkbook. Not at their 
language, but look at the checkbook. And if you look at the 
checkbook, your checkbook is showing you are putting resources 
in money and other areas and not in this. Spin and good words 
and things like that and press releases, but you are reducing 
this. And your reduction, I forget what it was. It was fairly 
significant.
    This administration will never live this one down. Never, 
ever will it ever live it down. And I tell you, every time it 
takes place, and Holder hears a story, and I assume you have 
got reports going into the Attorney General, he should know 
because of his inaction this is continuing to take place. Now 
these are defenseless and helpless people. I mean, they have no 
advocacy. Other than Pat Nolan, and Prison Fellowship, and a 
handful of other people, they do not have any advocacy. You 
should be their advocate. Holder should be their advocate. And 
frankly, I think the Justice Department and Holder is not. So 
every time I get a report and see, I think automatically I go 
to the fact, ``Holder, Attorney General does nothing, it is his 
fault.''

                           HUMAN TRAFFICKING

    The second issue that I want to get to, this sort of is 
along the same lines with regard to the whole victim issue. 
Human trafficking, are you reducing funding for human sexual 
trafficking?
    Ms. Robinson. There is a $2.5 million reduction.
    Mr. Wolf. Reduction?
    Ms. Robinson. Yes, there is.
    Mr. Wolf. People tell me that sometimes when you pick up 
the newspapers around the country and see some of the ads, they 
are basically brothels whereby people are sexually trafficked. 
Sexually trafficked by MS-13, by violent gangs. And probably in 
this area the reports that we get, and we just had a group come 
in the other day, in some of the embassies and some of the 
world banks and international groups, why would an 
administration reduce funding for human sexual trafficking?
    Ms. Robinson. Well, Mr. Wolf, I will tell you that this 
does remain a strong priority. There was an increase last year 
and this does remain a very strong priority not only for the 
Justice Department, but for the State Department, and for the 
Department of Homeland Security. We are holding a major 
conference on this issue for front line prosecutors, law 
enforcement, and victim services just in two weeks. One of my 
chief aides, Marlene Beckman, is the chief planner for that 
conference. We have the Secretary of Labor, Eric Holder 
speaking at that conference, 600 people coming to that.
    Mr. Wolf. But if Eric Holder is speaking, will the 
conferees be told that at the same time he is speaking he is 
also reducing the funding? Again, back to the checkbook issue. 
People can say what they want to say and give great speeches. 
But you really look to see where people put their money. Money 
is explaining something. And I read the report, Project Hope, 
we have 150,000 or more domestic women and young children the 
problem, and we are going to do something with regard to what I 
am getting, two groups came in last week, in this very, very 
region that is taking place that many people, you and others in 
the City, are going by, are passing by places whereby it has 
taken place. And the administration reduces the funding for it.
    I mean, in the stimulus there was funding for green 
technology to build solar panels and they gave the money to 
China. Whereas American citizens that are being sexually 
trafficked, and I had a report of a young person out in 
Northern Virginia the other day. And I do not know that when I 
talked to the FBI, I do not know it is a priority with the FBI 
because I do not think they have ever heard the Attorney 
General ever speak about it. I do not think it is a priority 
with U.S. attorneys around the country, because U.S. attorneys 
literally take their marching orders from the Attorney General. 
And when I chat with them I am not getting any message that 
coming out of Washington they are saying, ``Sexual trafficking 
is a priority of the Justice Department, and we want you to 
prosecute and aggressively go after it.'' If you know these 
facilities are here, and here, and here, and young women are 
being trafficked in it, and if you know maybe that some World 
Bank people, and the administration does not do anything in its 
own region. And so they cut their money for that.
    I mean so I do think, and I think there is a truth as 
people can say how interested they are in something. But I 
think you really want to see where the dollars go. Because 
without the dollars I do not think you really you really, what 
can be done immediately to institute a greater cooperation 
between state and local governments, the FBI, and U.S. 
attorneys to close down sites where trafficking is taking 
place, remove the victims of trafficking, and prosecute the 
offenders? What can be done?
    Ms. Robinson. I actually do think that this is a strong 
priority. There is a great deal of attention that is being 
given to this issue in the Department. The Civil Rights 
Division has the lead on this but the Criminal Division is very 
involved. There are regular meetings. I see the coordination 
going on. There are regular sessions on this----
    Mr. Wolf. But I have these groups come in to tell me the 
problem is flourishing unbelievably in this region. They said 
it is out of control.
    Ms. Robinson. It is a very big problem and it requires----

                           HUMAN TRAFFICKING

    Mr. Wolf. Well who is the one person responsible in the 
Justice Department for it?
    Ms. Robinson. Well ultimately the Attorney General, of 
course.
    Mr. Wolf. Well he is not doing much. So who is his person 
that he is saying, ``I want you Mister or Misses to deal with 
this issue of sexual trafficking. I want to clean up the 
Washington, D.C. area, the Northern Virginia area, the Maryland 
area, the metropolitan area, so that we demonstrate here. And 
then I want it to be a priority for the FBI, the SACs all 
around that are involved, and I want it to be a priority with 
the U.S. attorneys.'' Who is the person to do that?
    Ms. Robinson. I will get back to you because I do not know 
who that one person would be. But we will certainly get back to 
you about that.
    [The information follows:]

Who Is the One Person To Handle the Sexual Trafficking Issue in the DC 
                                 Area?

    The Department has appointed a National Coordinator for Child 
Exploitation Prevention and Interdiction who is situated in the Office 
of the Deputy Attorney General, and who is tasked with overseeing all 
the Department's efforts with respect to the sexual exploitation of 
children. The Department has many resources directed to attacking the 
problem of the forced domestic prostitution, or commercial sexual 
exploitation, of children, and the sex trafficking of adults, both 
foreign and domestic. With respect to the commercial sexual 
exploitation of children within the United States, the U.S. Attorney's 
Offices and the Child Exploitation and Obscenity Section in the 
Criminal Division take the lead on prosecuting these cases. They are 
investigated primarily by the FBI through the Innocence Lost Task 
Initiative. Cases of the sexual trafficking of adults, on the other 
hand, are prosecuted by the U.S. Attorney's Offices and the Criminal 
Section of the Civil Rights Division and its specialized Human 
Trafficking Prosecution Unit. These cases are investigated by FBI and/
or ICE, although ICE frequently takes the lead on these cases involving 
foreign victims. There is a Task Force funded by the Department's 
Bureau of Justice Assistance and chaired by the U.S. Attorney's Office 
for the District of Columbia to combat human trafficking in the D.C. 
metropolitan area.

    Mr. Wolf. Well I am going to hold you all accountable here. 
Because we are going to do something in this area. And even if 
we have to write the landlords who are running these businesses 
and begin to sort of, and put the pressure. But frankly, with 
the lack of funding that I see I find it hard to believe. Where 
is this conference going to be?
    Ms. Robinson. It is going to be right here in Northern 
Virginia.
    Mr. Wolf. Well you know, that is interesting, I am 
interested in the issue and nobody ever told me until just now. 
How long has it been planned?
    Ms. Robinson. I think it has been in planning for a couple 
of months. We will be delighted to have you come.
    Mr. Wolf. Well I will have a staff person go if I cannot 
go.
    Ms. Robinson. Of course, of course.
    Mr. Wolf. But we did not know about it.
    Ms. Robinson. Well, that is not good. I apologize.
    Mr. Wolf. It could not be because I am a Republican member 
on the other side?
    Ms. Robinson. Of course not, of course not.
    Mr. Wolf. I did not think so, and I know----
    Ms. Robinson. I can assure that is not the reason.
    Mr. Wolf. Interestingly enough you know when I was Chairman 
of this Committee we funded two conferences, an international 
conference and a domestic conference.
    Ms. Robinson. Mm-hmm, mm-hmm. I do apologize. That is bad 
that we did not invite you.
    Mr. Wolf. I will have someone go.
    Ms. Robinson. I would love to have you come. Would you 
come?
    Mr. Wolf. Well, I may or may not, I do not know what my 
schedule is. But I will have someone there.
    Ms. Robinson. Okay, great.
    Mr. Wolf. Mr. Chairman, I have other questions but I will 
just kind of yield back for now.
    Mr. Mollohan. Okay. Mr. Schiff.
    Mr. Schiff. Thank you, Mr. Chairman. Thank you for being 
here.
    Mr. Mollohan. Good morning.
    Mr. Schiff. I appreciate your work and your testimony. And 
at the outset I want to say you have a superb Director of the 
COPS Office in Chief Melekian. And I say that not just because 
we had a chance to work together in his previous capacity, but 
he is enormously well thought of and just a superb choice for 
that job.

                  DNA RAPE KIT BACKLOG IN LOS ANGELES

    I wanted to raise a couple of issues with you. One of the 
areas of my particular interest is in the use of DNA evidence. 
And as you, I am sure, are familiar we have a tremendous 
backlog problem in L.A. County and L.A. City. Thousands of rape 
kits that are still in the process of being analyzed, many of 
them bumping up or exceeding the statue of limitations. L.A. 
City and the County are struggling with their resources to get 
through that backlog. The Chairman has been very supportive in 
helping to provide funding to that region as well as the rest 
of the country in terms of DNA.
    In L.A. City now there is a second backlog, and that is 
what the City has done, what the County is doing to some 
degree, is sending these rape kits out to private labs because 
they do not have the capacity necessarily to hire the people 
internally to do the work on short order. The labs have done 
their analysis. But before they can be uploaded into CODIS they 
have to have 100 percent technical review. So there is a second 
backlog as the second review is waited to be undertaken.
    NIJ a couple of years ago, I think, recommended analyzing 
whether in some cases, or subcategory of cases, or all cases, 
to do away with the necessity of that second technical review. 
This is something I raised with the Attorney General as well as 
the Director of the FBI. I understand they are taking another 
look at this.
    But I would urge the DOJ to strongly consider doing away 
with the necessity of this second technical review by the 
government lab of the work of the private lab. And here is how 
I think it ought to work. There has never yet been a case, that 
I am aware of, where the government review of the private lab 
has turned out a problem with the DNA analysis of the private 
lab. What I would suggest is therefore rather than require the 
expense and the continuing backlog of this second review, is 
allow these certified private labs that have been checked out 
by the government to, once they conclude their results, to have 
those samples uploaded into CODIS. When there is a match, then 
require the second review. So when there is a match and you are 
actually going to utilize the results for something, then 
require the second review. That in and of itself would do a 
lot, at no cost, to get rid of the backlog.
    Now one of my colleagues in the Senate, I have seen from a 
hearing recently, has raised an issue with this as some effort 
by the private labs to, I do not know, if it is to get more 
work, or what the concern is. But this is not coming from the 
private labs. This is something that, in L.A. for example, is 
of great interest. With the L.A. Police Chief, with the Sheriff 
of L.A. County, this is something that will help law 
enforcement to get through their backlogs and also deal with 
their budgetary problems. So I would urge you to follow up on 
now a couple of year old, if not more, recommendation of NIJ, 
but also what we are hearing from law enforcement. And I wanted 
to begin by urging you to work with the FBI and see if we can 
do away with this unnecessary and expensive second review.
    I do not know if you want to comment on that. I have some 
other topics I want to raise to you also.
    Ms. Robinson. Okay. Well, first of all it is good to see 
you, Congressman. Actually, I do not think NIJ had ever made a 
formal recommendation on that. But we have been asked to work 
with the FBI as it is looking at this question and we are happy 
to do that. I know this is an issue that is under review and it 
is a question on the table. So we are happy to participate in 
that and I know it is an issue that is now being looked at. So 
we are very happy to participate in that review.
    Mr. Schiff. And I just want to add a sense urgency to it, 
and I do not know how strong the language was at NIJ a couple 
of years ago. It may have been a suggestion rather than a 
formal recommendation. But, you know, as some of these cases 
are bumping up on the statute of limitations and the cities and 
counties are in no financial position right now, there is a 
real sense of urgency. The quicker those samples can be 
uploaded into CODIS the quicker we can take some dangerous 
people off the street.
    Ms. Robinson. Oh, absolutely.

                              HOPE PROGRAM

    Mr. Schiff. So if I could just encourage you to move 
expeditiously on that I would appreciate it.
    The other issue I wanted to raise with you is a program 
that you are probably familiar with. It is the HOPE Program out 
of Hawaii, Steven Alm, Judge Alm out there, has done some great 
work in this program of graduated sanctions. I have introduced 
legislation to promote and expand this model to give a number 
of jurisdictions the opportunity to create this with a 
dedicated grant program. I introduced the legislation with one 
of my Republican colleagues, Ted Poe. And we would like to work 
with our Chairman and Ranking Member to see if we can address 
the issue in this CJS bill. Namely to create a dedicated pot of 
funding for grants for state and local courts to establish 
these kind of probation programs to reduce drug use, recidivism 
by requiring swift, predictable, and graduated sanctions. Would 
your office support such an effort? And will you take a look at 
this legislation and provide us with your feedback and the 
feedback of the Department?
    Ms. Robinson. Well, first of all, let me say I am a great, 
great fan of the Hawaii HOPE program, so I am delighted to hear 
that you have introduced this. Of course the Administration has 
not taken a formal position but I will tell you we are very 
strong supporters of that program. And it is an evidence-based 
program, as you know. NIJ has evaluated that program and found 
that it has terrific results in reducing future arrests. And so 
we would be very supportive of that.
    Mr. Schiff. Okay. Thank you very much. Thank you, Mr. 
Chairman.

                         COMPREHENSIVE PLANNING

    Mr. Mollohan. Thank you, Mr. Schiff. You have testified 
here that your Byrne JAG program is your kind of flagship 
program to help state, local, and tribal communities. And you 
are looking for planning, more planning. What are you looking 
for differently from local, state, tribal communities in your 
budget requests that is not happening now?
    Ms. Robinson. Mr. Chairman, thinking back again on history, 
in the original LEAA program there was a requirement for 
comprehensive planning from the states under LEAA. And we think 
there is a lot of virtue in that, particularly in tighter 
fiscal times, to bringing all of the players to the table as 
states are thinking through how that money is spent. That there 
is a virtue in that, to have everyone sit down and think 
through kind of strategic planning with a comprehensive look at 
what the needs are. So there is just a virtue in that. And of 
course to think about, as they can, research-based approaches.
    Mr. Mollohan. Well, you know, we do not deal with this 
every day like you deal with it. So was that a success? Was the 
LEAA approach a success? And what are some examples of it being 
successful? And what are we doing differently today? Did we 
lose that? And is your recommendation, or your testimony here, 
reemphasizing it? Or reintroducing this comprehensive planning, 
fact-based approach?
    Ms. Robinson. Yes, it was a success back in the seventies 
and eighties. And I think one reason for that, for those of us 
old enough to remember back that far, at that time there really 
was not a strong sense that there was a criminal justice 
system. So it was actually kind of an unusual concept at the 
time. I think we did lose some of that moving forward, when 
LEAA was abolished, and when there was less funding going to 
the states. So I think, that as budgets have become tighter, 
there is a more general recognition that there is a usefulness 
to doing this.
    Our partner organization, the National Criminal Justice 
Association, which is the association of the state 
administering agencies, which has a representative here in the 
room, actually feels as we do, that this is a step in the right 
direction, to encourage the states to do this. Many of them 
already do it. So I think there is an opportunity here for 
peer-to-peer encouragement and learning.
    Mr. Mollohan. What federal assistance is available to 
state, local, and tribal communities to assist in this 
comprehensive planning process?
    Ms. Robinson. Oh, we actually have given, late last year, 
at the end of the last fiscal year, a grant to the National 
Criminal Justice Association to provide technical assistance to 
the state agencies in this. And they are doing now regional 
training on a quarterly basis with those agencies along this 
line.
    Mr. Mollohan. Does that include every state in the nation? 
And to what extent are they assisting, and how comprehensively, 
tribal communities?
    Ms. Robinson. Yes, they are assisting tribal communities, 
as well, in this. Some of this is done through webinars. So it 
is pretty cost effective.
    Mr. Mollohan. And is every state participating in this 
process?
    Ms. Robinson. I know every state has been offered it. I do 
not know for sure if every state has taken advantage of it.
    Mr. Mollohan. What kind of information does OJP collect 
from grantees on how they actually use grant funding? And at 
what level of detail?
    Ms. Robinson. We collect a lot of information from them, 
obviously some of it is financial. But we collect programmatic 
information, as well. For example, BJA collects through a 
system information on performance measures in addition to more 
narrative information. So that we can see on a quarterly basis, 
for example with drug courts, how many offenders went through, 
what kind of drug tests came back, so that we have success 
measures from that.
    Mr. Mollohan. Just on that topic?
    Ms. Robinson. Yes.

                    RECIDIVISM AND PRISONER REENTRY

    Mr. Mollohan. As I mentioned in opening comments, we have 
spent a good bit of time on this Committee with hearings, 
informational hearings on recidivism, reentry issues, and how 
to do that well. What progress are we making with regard to 
devising different models, and proofing those models, and 
testing the success of different approaches to the issue of 
recidivism and successful reentry in different geographical and 
demographic areas?
    Ms. Robinson. I think we have a ways to go on it, to be 
candid. As I came back to OJP I asked for and was given 
briefings on what we now know about reentry. And I have to say, 
candidly, I was a little disappointed. I do not think that we 
have learned as much as I would have hoped we would have 
learned from the research today. I think from the generosity of 
what Congress has appropriated in the current fiscal year, with 
the $10 million that you gave us under the Second Chance Act, 
we have the opportunity to learn a great deal more. And we now 
have four solicitations on the street under that $10 million 
which will allow us to do some randomized controlled trials, 
which is the gold standard for research. This will help us to 
really learn much more definitively what really can make a 
difference in reintegrating offenders back into the community. 
Because I think, to date, we do not have the most definitive 
knowledge.
    And one of the reasons for this is because, to be honest, 
this is a very messy business, to state it somewhat in the 
vernacular. We have offenders moving back in very, very 
different circumstances, with very, very different backgrounds, 
with very, very different kinds of problems. So you do not have 
one type of offender moving back into one setting with only one 
type of issue. And some of the research to date is very unclear 
about what kind of interventions make a difference.
    Mr. Mollohan. This solicitation, is it out?
    Ms. Robinson. Yes, there are four of them.
    Mr. Mollohan. Just briefly describe what they are 
requesting?
    Ms. Robinson. Of course. Well, one of them is an evaluation 
of the demonstration programs that went out this past year 
under the 2009 solicitation. One of them is an evaluation of 
the reentry courts solicitation. One of them is an evaluation 
of the National Institute of Corrections work that is now out 
there about reentry, which is a very good program. And then one 
is a field experiment, this randomized controlled trial, which 
is the most rigorous part of this. And that is the one that 
will be longer and yield the most information.
    Mr. Mollohan. How long will that be? Five years? Ten years?
    Ms. Robinson. No, no, I think it is probably three to four 
years.
    Mr. Mollohan. Well, we would be interested in looking at 
that. I will look forward to following up with you on that.
    Ms. Robinson. Excellent.
    [The information follows:]

  What is the Administration Prepared To Do With Regard to the Prison 
                          Industries Program?

    The Administration regards Federal Prisons Industries (FPI) as one 
of the Bureau of Prisons' (BOP) most important correctional programs, 
both because it reduces recidivism and because it assists in managing 
crowded federal prisons. The Administration is aware that FPI has 
suffered significant reductions in earnings over the past few years 
and, as a result has substantially reduced the number of inmate 
participants. To guard against future losses, the FPI began 
reorganizing operations in FY 2009 to further reduce overhead expenses, 
including: reducing inmate employment; delaying factory activations at 
new federal prison facilities; consolidating operations; and closing a 
few existing factories. Despite these efforts to create additional 
savings and efficiencies, it is possible that there may be additional 
measures taken. Currently, the FPI is assessing whether additional 
closures. reorganizations, or other measures are necessary. To ensure 
that FPI remains a viable and self-sustaining corrections program in 
the long-term that employs substantial numbers of federal inmates, FPI 
and BOP will be working with the Department of Justice to develop 
legislative proposals that would allow FPI to expand its market 
opportunities.

    Mr. Mollohan. Mr. Wolf.

                        WORK PROGRAMS IN PRISONS

    Mr. Wolf. Thank you, Mr. Chairman. I think that the 
administration should be aggressive, and again it has not, on 
the issue of work in prisons. The failure to push aggressively 
the Congress to give prisoners work and dignity. Fewer than one 
in ten are now working. And, you know, we have had prisons for 
234 years in the country. And I would urge you to be working 
with the Pew Foundation, too.
    Ms. Robinson. Mm-hmm.
    Mr. Wolf. And Mr. Schiff mentioned the HOPE Project. I 
think it is a great project. We had the judge in, and he was 
part of that conference that we had.
    Ms. Robinson. Mm-hmm, right.
    Mr. Wolf. But work. I have a proposal we are going to try 
to put on this bill, if we can. I talked to Mr. Conyers, he led 
me to believe that he was in support of it, that reinstitutes a 
significant work program in the prisons whereby prisoners are 
allowed to work on products that are no longer made in the 
United States. It is kind of a repatriation, if you will. If we 
no longer make televisions, and I am not sure television is the 
place to go. But if we no longer make televisions we would 
start making televisions in prisons. But I would urge you, and 
if you could get back to us, what is the administration 
prepared to do with regard to the prison industries program?
    Because you can study the reentries, and the problems, but 
everyone will tell you if a man or a woman is not given work, 
both dignity, skill, money that they earn whereby they can send 
some money to their family while they are in prison to maintain 
that continuity. And lastly, when they get out. I talked to a 
young prisoner who was released from a federal halfway house in 
Southeast Washington at 10 on a Saturday night with almost no 
money in his pocket. Now to be released in that neighborhood at 
10 at night with almost no money and no skills, having never 
worked a day, and he was in two different federal prisons. So I 
think if you really want to do something dramatic it would be 
to use the political influence of the administration to push a 
work program, and work with the Chairman and others, to sort of 
get it in this bill. Because I do not think you are going to be 
able to solve the reentry problem. You cannot put a man or a 
woman in jail for ten years and not give him any skills, work, 
money, and then release him or her and have, and the continuity 
of the family, and everything else.
    So I would hope if you could give us some sense of what the 
administration would do, and if they would support. I was 
surprised, you know, you told Mr. Schiff you support Project 
HOPE, the HOPE Project. In the previous administration people 
were told never to tell what the administration's position was. 
And you were very open. That was very courageous, I commend 
that.
    Ms. Robinson. Yeah, no, remember I said the 
Administration----
    Mr. Wolf. No, I thought you endorsed it and I thought that 
was very commendable. I was very impressed.
    Ms. Robinson. Well I said the Administration did not 
support it but I liked it.
    Mr. Wolf. Well you are very courageous, so I would hope 
that you would tell me the same thing. That while you do not 
know if the administration supports it you do support----
    Ms. Robinson. Yes, well I will tell you on the prison work 
thing I have visited a lot of prisons and I can, I, Laurie 
Robinson, completely agree with you. I do not know what the 
Administration's position is on this. But I completely agree 
with you because it absolutely restores an individual's sense 
of their own self-worth. And it also gives them a sense that 
they are going to contribute to their own family, which builds 
that family tie. Which, as you know from the work that you 
personally have done I know, can build their own tie with their 
own roots. And that is so critical.
    Mr. Wolf. Well we will get you the language, then, if you 
could take a look at it and see. And we will see where the 
Chairman is. And I did have a conversation with Mr. Conyers on 
the floor about a month ago, and he seemed to be supportive of 
the idea.
    Ms. Robinson. Now you may have to help me when I go back to 
the Department. They may not like me after I am sitting up here 
endorsing these things!
    Mr. Wolf. No I think the Bureau of Prisons, though, really 
would like this. I think the problem has been with the chamber 
of commerce and organized labor.
    Ms. Robinson. Right.
    Mr. Wolf. And where they have been. But yet everyone is 
concerned with the recidivism issue. And I do not think this 
would be a threat, I mean I can understand how a company or a 
union would be concerned that you have prisoners competing with 
people outside. But if you are not competing with any current 
company, or any workers here in the United States, you are 
actually creating the jobs. For instance, the teamsters would 
drop the wire off at the factory so you would be creating a job 
for a labor union member or you would be creating a job for the 
private sector. Because who is going to manufacture that wire, 
would have to give it to the teamster to drop by, or whatever 
the equipment. So you are really not completing with the 
furniture manufacturers or anybody else because you would only 
be working on a product that is no longer made in the U.S. And 
that would almost be the defining thing. If there was 
competition in the U.S. you would not do it. But if it was 
something that was not being made, and then a wiring skill, we 
had once asked Emerson to look at coming in the D.C. prison, 
Lorton, and then there was opposition and they pushed back. 
They were interested. Now there are not American television 
manufacturers now. Emerson went south of the border and 
everybody else is gone.

             DRUG, MENTAL HEALTH AND PROBLEM-SOLVING COURTS

    Following up on that, you propose combining funding for 
drug courts, mental health courts, and other problem solving 
courts. The problem with that is that it could dilute the 
funding. Former Congressman Jim Ramstad was by yesterday to 
explain, and I think the Chairman has been a great supporter of 
the drug courts, and I think everybody on the Committee is. But 
are you concerned, and I remember the Attorney General, I guess 
she was the Chief Justice of the Alabama Supreme Court? Yeah. 
She had, she had been at the Pew conference, too. She had 
expressed concern that the language would dilute and take away 
from the drug courts. And Congressman Ramstad really made a 
compelling case on you may have need for these other courts, 
but if you dilute the funding and the funding stays about the 
same, does it? Does it stay the same? So if it stays about the 
same, and there is not enough for drug courts now, I think he 
said something like 20 percent of the population is in areas 
whereby they are, that you could just toss this thing up 
dramatically. And our governor, who is a good strong, strong 
supporter of it.
    You may, as commendable as it may be for the mental health 
courts and other courts, I think there is a legitimate concern 
that if you have the same funding and you are adding in you are 
going to be in essence taking away from the drug courts. And I 
do not know if you want to comment about that?
    Ms. Robinson. Yes, well first of all let me just say from 
my own background I am an incredibly strong supporter, as is 
the Department of Justice, of drug courts. I was the person who 
set up the initial Drug Court Program Office at the Department 
of Justice in 1994 when the Crime Bill passed Congress back 
then and was instrumental in helping fund the initial National 
Association of Drug Court Professionals. So I go way back with 
that group and have visited more than a dozen drug courts 
around the country, probably many more than that. So the last 
thing that I or we at OJP want to do in any way is harm drug 
courts.
    I think the effort here, or the thought, was simply to 
provide more flexibility to jurisdictions if they wanted to do 
a community court, a mental health court, or something else. 
And that was our only thought. We do not in any way want to 
undercut drug courts.
    Mr. Wolf. But you can see their concern is if the level of 
funding is about the same and you add in that they were 
concerned that they would be taken away.
    Ms. Robinson. Yes, I can understand their concern.
    Mr. Wolf. And you might take a look at the testimony of the 
Chief Justice of the Alabama Supreme Court. And she was also on 
the program at, where the Chairman spoke at the Pew conference.
    Ms. Robinson. Right, I remember meeting her there. She is 
very impressive.

                      PRESCRIPTION DRUG MONITORING

    Mr. Wolf. The last question is according to the National 
Drug Threat Assessment for 2010, it says, ``an increasing 
number of law enforcement agencies are reporting that 
pharmaceutical diversion and abuse pose the greatest drug 
threat to their areas, in part because of increases in 
associated crime and gang involvement.'' Because this puts an 
additional strain on agency budgets and assets it is critical 
that we help increase the capacity of law enforcement agencies 
to collect and analyze controlled substance prescription data. 
Thirty-four states have prescription drug monitoring programs 
and ten more are in the process of establishing them. Yet the 
administration's budget proposes to eliminate funding that 
assists these efforts.
    Ms. Robinson. Shall I comment?
    Mr. Wolf. Yes, ma'am.
    Ms. Robinson. Yes, well Mr. Wolf, as you see the budget 
includes a number of offsets. And it was a tight budget year. 
There are a number of things in here that have been proposed I 
know people are, many of you, unhappy about. And all I can say 
is that these were very tough decisions to make. They are not 
areas that any of us were particularly happy about the 
Administration having to make. And it does not mean that they 
were not priorities, because obviously they have been funded 
and supported for a number of years. But they were areas that 
were proposed by the Administration for cuts.
    Mr. Wolf. Well that, that does create a problem, as you 
know. And now you are finding down in Broward County and places 
like that that people are just chartering airplanes and flying 
down there, and going to all these pain clinics, and getting 
all of this. And we are hearing these stories. And I think the 
federal government is really the only one that can be the 
solution here because each state, it is kind of fragmented. And 
I think the program, I think it began, I was not on the 
Committee then I think, but I think it began in this Committee.
    Ms. Robinson. Yes, that is correct, with Harold Rogers. 
Because I remember it was a couple of years after I left. He 
had talked about it, actually, when he was Chair of the 
Committee.
    Mr. Wolf. And so, okay. Okay, Mr. Chairman. Thank you, Mr. 
Chairman.
    Mr. Mollohan. Mr. Schiff.

                      JUSTICE REINVESTMENT PROGRAM

    Mr. Schiff. Thank you, Mr. Chairman. A recent Pew study 
shows that one in thirty-one adults is currently under 
correctional control, up from one in seventy-seven back in 
1982. Over the last two decades corrections have been the 
second fastest growing area of state expenditure, second only 
to Medicaid. State corrections now cost over $50 billion, 
consuming one in every fifteen discretionary dollars. Budget 
cuts and prison overcrowding are creating a crisis in many 
states. In my home State of California prisons house over 
170,000 inmates, nearly twice their operating capacity. State 
spending on corrections accounts for over $10 billion annually, 
almost 10 percent of the general fund, greater than average for 
the nation. And we are now faced with a judicial order to 
release about a quarter of our prison population and recidivism 
numbers are going to go up dramatically because they are being 
effectively released without supervision.
    Despite these increasing corrections expenditures 
recidivism rates remain very high. We are not making much 
progress on it. I have also introduced legislation on this 
subject, justice reinvestment legislation. We found that policy 
makers often have insufficient access to detailed, data-driven 
explanations for changes in crime, arrest, conviction, and 
prison and jail population trends.
    These reinvestment strategies recognize that in every state 
there are a handful of high stakes communities into which most 
people released from prisons and jails return. State community 
agencies, however, often lack the, or provide uncoordinated, 
often costly services to these same neighborhoods and families 
without successful outcomes. Justice reinvestment experts work 
closely with state policy makers to advance fiscally sound, 
data-driven criminal justice policies to break the cycle of 
recidivism, avert prison expenditures, and make communities 
safer. We have seen promising results from these kind of 
strategies in Texas, Kansas, and other jurisdictions where they 
have been implemented.
    Our Chairman, Mr. Mollohan, and Ranking Member Mr. Wolf 
have been really ahead of the game on this issue. It was the 
focus of Subcommittee hearings, as Mr. Wolf pointed out, and I 
hope to work with them to promote and expand this work. Mr. 
Mollohan's and Mr. Wolf's leadership on the issue culminated in 
provided $10 million in fiscal year 2010 for activities related 
to criminal justice reform and recidivism reduction by states.
    The administration's budget for this year, though, requests 
no funding for this program for the upcoming year. I just 
wanted to find out, are you familiar with the reinvestment 
efforts? What are your thoughts on them? What is your current 
plan with regard to the fiscal year 2010 funds that were 
provided? And can you shed some thoughts on why the 
administration has not asked for funds in fiscal year 2011?
    Ms. Robinson. Yes. Of course, Mr. Schiff. First of all, let 
me congratulate you and the Chairman and Mr. Wolf for your 
leadership on this. I think it is tremendous. The Attorney 
General and I are very familiar with justice reinvestment, very 
strong support of your leadership on this, and are very 
supportive of the efforts going forward on this.
    BJA, as you probably know, has been supportive of this work 
and I congratulate the Council of State Governments, and the 
Pew Trust, and others for the work that has gone forward in the 
states. It is tremendously promising. I think we will look back 
in ten years and see this as one of the breakthrough movements 
in criminal justice in this country.
    I think to zero in on your question as to why this was not 
in the budget, speaking very candidly it is a question of the 
cycle of how budgets are put together. Right now we are putting 
together the 2012 budget at the OJP level. This was added 
fairly late in the budget cycle. And so at the time that this 
was put into your budget for fiscal year 2010 our budget had 
long since left the OJP/DOJ level and was already at OMB. That 
is the candid answer. So if we could have put it in we would 
have, but it had long since left our hands.
    Mr. Schiff. Can you share with us a little bit about how 
you are using the 2010 funds?
    Ms. Robinson. Of course. Our plan is to follow the model 
that you all have set here. And so we have been consulting with 
the groups that are already working in this area and we are 
putting together a solicitation that we will be issuing that 
will follow that model of the data-driven assessment, and then 
the implementation, and the way that the states are already 
moving forward on this. We are looking to have a solicitation 
that would look for an organization to do overall coordination, 
and then to have funding for state participation, 
implementation work, and then also for localities and tribes. 
So it will be a three-part solicitation.
    Mr. Schiff. Thank you. And I take it from your comments 
that it will receive at least a favorable recommendation from 
Justice to OMB for the 2012 budget?
    Ms. Robinson. Well, of course, I cannot comment on the 2012 
budget. But let us just say the Attorney General and I are very 
favorably disposed toward working on justice reinvestment.

                   INTELLECTUAL PROPERTY ENFORCEMENT

    Mr. Schiff. One other issue I just wanted to mention 
quickly is, I just wanted to express appreciation for the work 
that you have been doing with the funds we provided on 
intellectual property enforcement.
    Ms. Robinson. Oh, wonderful.
    Mr. Schiff. So we look forward to continuing our work 
together on that. I am very pleased that $4 million was made 
available for the program in 2010, and I want to work with you 
to ensure that the program is funded, and administered 
effectively. This is a key issue to many of the people I 
represent in California.

                   REAUTHORIZATION OF COPS AND OJJDP

    And finally, you know, I just want to put on your radar 
screen something that I have been working on regarding the 
reauthorization of OJJDP and related programs, as well as the 
COPS program. This may be a long term project. But I would love 
to see us at the federal level do what we did in California, 
which I would love to see us do a joint reauthorization of 
OJJDP as well as COPS, and try to provide equivalent funding in 
both programs. So that we make an equal investment in 
prevention as we do in suppression. And so I am working with 
the Chairs of Education and Labor, as well as the Judiciary 
Committee, to investigate this concept. I have introduced it in 
legislative form, but I think it will take a while to congeal. 
But I wanted to put that on your radar screen.
    Ms. Robinson. Wonderful. Thank you so much.
    Mr. Schiff. Thank you. Thank you, Mr. Chairman.

                             TRIBAL GRANTS

    Mr. Mollohan. I would like to ask you some questions with 
regard to tribal grants. This Subcommittee doubled OJP's Tribal 
Assistance Grant Program from $25 million to $50 million in 
2010. And so I am very happy to see the attention that the 
Department has been giving to Indian country in the last 
several months, including the establishment of the Tribal 
Nations Leadership Council and the release of the Coordinated 
Travel Assistance solicitation in March. I know the Attorney 
General was personally interested and involved in this and I 
think that is tremendous. And he knows and I want to reaffirm 
here today that we are very supportive of paying attention to 
this in specific ways, which I want to get to in a second.
    But how does the coordinated grant solicitation work? And 
how are you collaborating with the COPS program and the Office 
of Violence Against Women to ensure that the most important 
needs, the most focused needs, of the tribes are being 
addressed?
    Ms. Robinson. Of course. Well Mr. Chairman, as you alluded 
to, this is very high priority for the Attorney General, and 
also for the Associate Attorney General to whom I directly 
report. And for this coordinated solicitation, the Associate 
Attorney General has one of his deputies working directly with 
the Director of the COPS Office, with me, and with the Director 
of the Office on Violence Against Women. So our staff have 
worked hand in hand in putting together this coordinated 
solicitation. With that we have ten separate programs, all of 
the tribal programs, combined underneath that. That will allow 
the tribes, and the solicitation is, as I think your staff 
knows, is now on the street, due in May. It will allow the 
tribes to have one application rather than ten separate 
applications. They can file one problem statement, one 
description of their tribal needs, and then, in essence, just 
make a check mark for the areas where they need funding. They 
can then have one budget submission. And it greatly streamlines 
their application process.
    We have had very favorable response to this. And we did a 
great deal of outreach to the tribes, both to let them know 
about this and also to answer questions. Because there were a 
lot of questions. It is a very different process for them. 
There were some concerns about it at first, because any time 
you start doing something in a different way, you know, they 
wanted to know whether this was going to disadvantage them in 
some way, whether there were going to be some issues or 
problems. So we answered those questions, we did a lot of 
consultation, and it seems to be going smoothly.
    Mr. Mollohan. Were they consulted in fashioning the 
structure of this, and the changes, and making 
recommendations----
    Ms. Robinson. Yes.
    Mr. Mollohan [continuing]. At the front end of it?
    Ms. Robinson. Yes, they were. The idea came from Tom 
Perrelli, the Associate Attorney General--the overall idea. And 
then we consulted with the tribal representatives about exactly 
how we might do it. The technical sides of it we had to come up 
with. But then we bounced those ideas off of them. So it seems 
to be going pretty well.
    Mr. Mollohan. Well we want to work with you and work 
together on making this as effective as possible.
    Ms. Robinson. Thank you.
    Mr. Mollohan. And I know from the Attorney General on down 
you are really leaning forward on this and that is tremendous.
    The Bureau of Indian Affairs provides money in a lot of 
these areas. To what extent are they involved or not involved 
in the process that you just described?
    Ms. Robinson. Well, especially BJA works very closely with 
them on a number of these areas. For example, anything relating 
to the correctional detention facilities, those kinds of 
things. So we have kept in close touch with them.
    Mr. Mollohan. But in this process you are talking about, 
the grants process, the needs process?
    Ms. Robinson. Oh, yes.
    Mr. Mollohan. I would not think you could actually, and 
maybe you cannot, I do not know. Maybe there are two separate 
processes and they achieved two separate goals. I will learn 
more about that and understand that better in the future. But 
were they consulted in this solicitation work that you are 
doing, and setting up the Tribal Nations Leadership Council, 
for example?

                             TRIBAL GRANTS

    Ms. Robinson. Oh, yes.
    Mr. Mollohan. Will they be participating----
    Ms. Robinson. Yes, they have certainly been consulted about 
that. I thought you meant more specifically about the process 
of the solicitation. That I do not know. But certainly on the 
substantive side----
    Mr. Mollohan. In coordinating needs and resource 
applications----
    Ms. Robinson. Correct.
    Mr. Mollohan [continuing]. Is more of what I am talking 
about, I think.
    Ms. Robinson. Correct. Yes, indeed. Yes, they have.
    Mr. Mollohan. Okay. Well, we will learn more about that. 
What kind of feedback are you getting from the tribes on the 
solicitation so far?
    Ms. Robinson. Oh, very good. Very good feedback. We had 
some questions early on about, you know, I would say some 
questions, a little wariness because it was different, and it 
was new. But we scheduled a number of conference calls with 
tribal leaders. We scheduled separate individual conference 
calls, and----
    Mr. Mollohan. Any unresolved concerns coming from any 
direction?
    Ms. Robinson. No, not at this point.
    Mr. Mollohan. When do you anticipate awards being made?
    Ms. Robinson. By the end of the fiscal year.
    Mr. Mollohan. In your request, you have proposed a carve 
out from OJP programs across the board rather than funding 
tribal programs separately.
    Ms. Robinson. Right.
    Mr. Mollohan. I want to give you an opportunity to talk 
about that, to justify your request and the approach, and tell 
us how you think it is better.
    Ms. Robinson. Our thinking there, Mr. Chairman, was as 
follows: That first of all, that this, as I have said before, 
was such a high priority for the Attorney General from the 
standpoint that this is an area that has long been neglected by 
the federal government, and where it is clear that crime is 
such a serious problem in Indian country, and a long neglected 
problem. And that some areas such as sexual assault and crime 
against Indian women are just incredibly severe. And that the 
way to do this would be to look across OJP programs broadly 
rather than to look at them individually. To look broadly 
across OJP programs and in a tight fiscal year to do it as a 
set aside. So that was our thinking.
    Mr. Mollohan. Have you done the math as to what would be 
the----
    Ms. Robinson. The bottom line?
    Mr. Mollohan. Yes, the bottom line outcome?
    Ms. Robinson. Yes. $139 million.
    Mr. Mollohan. I mean what is the comparison to what we 
funded in 2010?
    Ms. Robinson. I do not remember that figure offhand. I 
think it was around $50 million.
    Mr. Mollohan. $50 million in additional resources for 
Indian country?
    Ms. Robinson. I am just thinking that that was the amount 
that we had funded last year.
    Mr. Mollohan. No, I am asking you does this result in more 
resources going for Indian programs? Or less resources and how 
much? Have you done that math?
    Ms. Robinson. Oh, well I think it is about $80 million.
    Mr. Mollohan. Mr. Wolf.
    Mr. Wolf. I have no questions.

               SEX OFFENDER REGISTRATION NOTIFICATION ACT

    Mr. Mollohan. I do. Let me talk a little bit about the Sex 
Offender Registration Notification Act. OJP's Office of Sex 
Offender Sentencing, Monitoring, Apprehending, Registering, and 
Tracking, SMART, is responsible for administering the national 
standards for sex offender registration and notification under 
the Sex Offender Registration and Notification Act, or SORNA. 
SMART also provides assistance to state, local, tribal, and 
territorial jurisdictions in implementing those standards. The 
original deadline for jurisdictions to comply with the 
standards, July 27, 2009, was extended by the Attorney General 
to July 27, 2010. Congress provided $11 million for sex 
offender management assistance in 2010 along with $1 million 
for the National Sex Offender Website. For fiscal year 2011, 
OJP has proposed $25 million for SMART office activities, along 
with one million for continued operation of the National Sex 
Offender Website. How are all these jurisdictions progressing 
in their compliance with the requirements of SORNA?
    Ms. Robinson. Mr. Chairman, as you know to date only three 
jurisdictions have complied. One is Ohio and two are Indian 
tribes, the Umatilla and the Yakama Confederated Tribes. 
Approximately five more are close to compliance. But we are not 
certain that any additional jurisdictions will be in full 
compliance by this summer.
    However, the Department is offering an additional 
extension, which by law we can, to any jurisdictions that are 
requesting it beyond this July. And that is available by law. 
So they have until July of 2011 to comply.
    Mr. Mollohan. What is causing the delays?
    Ms. Robinson. There are really two reasons. One is 
implementation costs, because it takes time and effort and 
money to set up registration and notification systems. And the 
second are a variety of policy issues, which include the 
juvenile registration and notification issues, issues about 
substantial implementation and what that really means, 
retroactivity questions, and the issue about risk assessment 
versus offense tier issues. So it is a variety of pretty 
technical questions about what is required under SORNA.
    When I came to OJP, Mr. Chairman, I had worked on the Obama 
transition in the fall of 2008 and I heard a great deal during 
the outreach that we did to the groups during the transition 
about the difficulties in complying with Adam Walsh and SORNA. 
So when I came to OJP I met right away with our SMART Office 
staff. And I said to them, ``Let us do everything that we can 
to make the Adam Walsh Act a success. Let us work with the 
states in every way that we can to be as flexible as we can 
within the four corners of the SORNA statute to work and see 
where we can help the states in complying.'' The SORNA staff 
have been terrific in that. And they have issued better, I 
think, and more clarity in their guidance now.
    We are also working on some additional guidelines that are 
going through clearance at OMB now. And I am optimistic that we 
will get there.
    Mr. Mollohan. Well, jurisdictions that are unable to meet 
the extended deadline, will they have the opportunity to have 
additional extensions?
    Ms. Robinson. Tribes by law will be able to have an 
additional extension. But under the statute states will not so 
they will be penalized. However, they can use that money, it 
can go back to the state to work on implementing the SORNA 
guidelines.

                                 ICACS

    Mr. Mollohan. The Committee last year provided $70 million 
for the Missing and Exploited Children Program and $30 million 
was culled out for the ICACs. You do not do that in your 
request?
    Ms. Robinson. No, we did not.
    Mr. Mollohan. I am not asking you why, exactly. But what I 
would like for you to do is really just talk about the ICACs, 
what you think about them, how they are working. Give us some 
sense of the resources we would need if we were to address this 
problem adequately.
    Ms. Robinson. Yes, I think actually that the ICACs are 
tremendously important. And the funding last year under the 
Recovery Act, the $50 million, was tremendously helpful to 
them. We met recently in something called the Executive Working 
Group with representatives from the state attorneys general and 
they talked to us extensively about the important work of the 
ICACs.
    Mr. Mollohan. And successful.
    Ms. Robinson. Successful, absolutely. For the Deputy 
Attorney General, for Gary Grindler, the Acting Deputy, we are 
meeting next week on child exploitation issues. The ICAC work 
is, if we could with--again, this is the question of the 
limited budget. If we could quadruple that money, I am speaking 
only in the hypothetical here, but it is extremely well spent 
funding. Because there is tremendous need here. And the work 
that they do is heroic. It is tremendously important. And the 
state AGs just underscored that tremendously.
    Mr. Mollohan. It is so easy to get into all these issues 
that the Subcommittee funds and that your Department deals 
with, and want to have all the resources in the world to get 
out there and fix all these problems.
    Ms. Robinson. Yes, and that is why I say only 
hypothetically.
    Mr. Mollohan. No, it is true. You know, and we work against 
a countervailing effort here. You know, as Mr. Wolf raises 
questions about the benefit of incarcerated persons having work 
experiences, not only just to have a useful experience while 
incarcerated but also to develop skills and capabilities 
necessary to be successful when they get out. We all recognize 
that works on recidivism. But at the same time we all say that, 
well we do not all say that is a good, is the truth about it. 
There are a lot of people that say just lock them up and forget 
about them. Throw the key away and forget about them. But at 
the same time we have elements within the Congress that really 
work against that. And I think that we need to work within the 
Congress, Frank. And I certainly would be pleased to work 
together on that within the Congress on our colleagues, and to 
achieve some progress because I think that is extremely 
important. Equally with Missing and Exploited Children.
    But I think there is some real promise on the technology 
horizons with regard to ICAC. I do not know if, you are 
probably very familiar with that. But to what extent are you 
looking at that? The computer capability of identifying and 
apprehending perpetrators of these kinds of horrible crimes?
    Ms. Robinson. Yes, again I am not the technology person at 
all. But we have some very, very capable staff and people 
within the investigative parts of the Department that are 
extremely expert at that and looking at those very questions.
    Mr. Mollohan. Yes, it would seem like almost by definition 
that would be an area where resources would have a real payoff.
    Well we are extremely supportive of that. And perhaps when 
you work in your 2012 budget you will cull it out. There is a 
lot of support in the Congress----
    Ms. Robinson. Excellent.
    Mr. Mollohan [continuing]. For that program and we would 
certainly be receptive to that.
    I have a number of other questions that I will submit for 
the record in a number of other important areas. Mr. Wolf has 
no additional questions. I think the majority of the Committee 
recognizes the excellent work you are doing and the attitude 
that you are bringing to the job, not to mention the 
experience. And we are especially pleased to work with you. I 
appreciate your testimony here today. And we will, as this 
process moves forward, get down to the detail and see how we 
can support your work the best we can. Thank you very much for 
your testimony. Thank you, Ms. Robinson.
    Ms. Robinson. Thank you so much.
    Mr. Mollohan. The hearing is adjourned.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
                                      Wednesday, February 24, 2010.

                       LEGAL SERVICES CORPORATION

                               WITNESSES

VICTOR M. FORTUNO, LSC INTERIM PRESIDENT AND GENERAL COUNSEL
FRANK B. STRICKLAND, CHAIRMAN, LSC BOARD OF DIRECTORS

                            Opening Remarks

    Mr. Mollohan. The hearing will come to order. Good morning.
    The Subcommittee would like to welcome Victor Fortuno, Interim President of the Legal Services Corporation, 
and Frank Strickland, the current Chairman of the LSC Board of 
Directors, to discuss LSC's 2011 budget request and other 
issues relating to civil legal aid.
    We are pleased to have you both. Thank you for your 
appearance here today and your good work for this cause.
    LSC is now in its 35th year of existence and in many ways, 
this will be one of your most challenging years. More than 53 
million Americans, including more than 18 million children, are 
now eligible for LSC's services.
    That is an increase of three million over previous 
estimates, and the number of eligible clients will only 
increase as we continue to receive data on 2009, when the 
impacts of the recession were being felt by many.
    I think it is important that we not forget what it means to 
be eligible for LSC's services. It means that you are living at 
or below 125 percent of the poverty rate, which was $27,563 for 
a family of four in 2009.
    The idea of trying to support a family of four on less than 
$28,000 is challenging enough. When you throw in the burden of 
dealing with an unexpected and significant legal crisis, it is 
easy to see what a crucial life line LSC extends by providing 
high-quality, free legal assistance.
    Unfortunately, the availability of that life line to many 
has been challenged by budget problems at all levels. Federal 
and state support for legal services have not kept pace with 
the demand, and the recession and its related effects have 
severely reduced charitable donations and other sources of 
legal aid funds.
    The inadequacy of funding has led to a situation in which 
one out of every two people seeking assistance from an LSC-
funded program is turned away and left to deal with their 
divorce or their foreclosure-related eviction or their appeal 
for disability benefits on their own.
    With this as context, I would like to use this hearing to 
discuss your proposed budget for fiscal year 2011 and to hear 
your thoughts on how that budget will help to alleviate the 
severe shortage of legal services available to LSC clients.
    I also hope to use this hearing to address some criticisms 
of LSC that have become perennial favorites of the small group 
of members who do not support your program.
    I firmly and enthusiastically support any efforts that will 
improve your program management and reduce instances of waste 
or abuse, and I will continue to hold you to a high standard in 
both of these areas. However, I want to make sure that our 
consideration of those issues is fair, accurate, and, most 
importantly, productive.
    Before we invite you to begin with your prepared remarks, I 
would like to turn to our Ranking Member, Mr. Wolf, for his 
opening statement.
    Mr. Wolf.
    Mr. Wolf. Thank you, Mr. Chairman.
    Welcome, welcome to the hearing. I want to join the 
Chairman in welcoming both of you today testifying before the 
Subcommittee regarding your 2011 budget.
    The Act that created the Legal Services Corporation 
provided you with a pass-through budget authority and, 
therefore, you can provide the Appropriations Committee with an 
independent assessment of your funding needs without OMB 
approval.
    You are requesting $516.6 million, which is $96.6 million 
or 23 percent above the fiscal year 2010 enacted level. 
However, the President's budget requested a lower amount of 
$435 million, which is $15 million above the fiscal year 2010. 
I think you can see the potential problem.
    With that, I will just yield back.
    Mr. Mollohan. Gentlemen, your written statements will be 
made a part of the record. If you would summarize them for us, 
we will proceed.
    Mr. Strickland, please.
    Mr. Strickland. Thank you, sir.

            Statement of LSC Board Chairman Frank Strickland

    Chairman Mollohan, Congressman Wolf, and other members of 
the Subcommittee, I want to begin by thanking you for holding 
this important hearing today.
    The Legal Services Corporation is on the front lines of 
ensuring equal justice under law in this country. And I 
consider it an honor to have served as the Board's Chairman 
since being confirmed in 2003.
    I also want to thank you for providing our programs with a 
$30 million increase this year. At a time when there is a 
substantial increase in the demand for services and a crisis in 
non-federal sources of funding, this increase will go a long 
way in keeping our programs afloat.
    We expect this crisis to continue and more funding is 
required to support the critical work of LSC programs. For 
fiscal year 2011, we are requesting a total of $516\1/2\ 
million.
    I am joined today by Victor Fortuno, the long-
time General Counsel at LSC, who is now also serving as the 
corporation's interim President. Mr. Fortuno has been 
with the Corporation in various capacities for 27 years.
    The Board greatly appreciates the counsel and support he 
provides to the Board and LSC management. He will speak 
directly on our 2011 budget request.
    2009 was an eventful year for the corporation and LSC 
programs across the nation that strived to meet the challenge 
of providing civil legal assistance to the poor.
    In July, LSC celebrated its 35th anniversary and was 
honored with commemorative statements from Congress and the 
President.
    In September, LSC released a new report on the justice gap 
showing that LSC programs, because of insufficient resources, 
continue to turn away about one million low-income Americans 
each year.
    2009 also marked the beginning of a leadership transition 
for the corporation. President Helaine Barnett stepped down 
after serving six years, leading to the appointment of Mr. 
Fortuno as our interim President.
    We are awaiting the completion of the appointment and 
confirmation process of a new Board and it will be their 
responsibility to select a new LSC President.
    Ensuring a smooth Board transition has been one of my 
priorities as the outgoing Board Chairman. So far, we have held 
two orientation sessions, the last on January 28, for the White 
House nominees. To use a time-honored phrase, I believe these 
nominees will hit the ground running.
    One of the core responsibilities of the Board is good 
stewardship of the funds that you provide each year. Prompted 
by two reports from the Government Accountability Office, we 
have taken steps to more sharply focus Board oversight on LSC's 
financial and compliance responsibilities and to focus the 
corporation's attention on improved internal cooperation and 
better management practices.
    We are making great progress. All 17 of the recommendations 
made in those two reports were accepted by the Board and LSC 
management.
    Last year, the Board's Vice Chairman testified about our 
progress. And since then, the GAO has asked for additional 
information in five areas and the LSC staff is at work 
responding to these more recent requests. I am fully confident 
that LSC will carry through on the completion of the GAO 
recommendations.
    I believe strongly in the obligation of attorneys to 
volunteer their services to legal aid programs. I have done 
that as a lawyer in Atlanta.
    Three years ago, the Board adopted a resolution in support 
of increasing pro bono services. And today 109 of our 136 
programs have adopted similar resolutions.
    Private lawyers who volunteer their time are an invaluable 
resource for LSC programs and an important part of the overall 
effort to provide equal access to justice for the nation's 
poor.
    LSC also is reaching out to judges, the private bar, law 
schools, businesses, state access to justice commissions, other 
funders and other supporters of legal aid, but pro bono efforts 
alone cannot meet the legal needs of the poor. Government has a 
vital role to provide the funding, the leadership, and the 
oversight to fulfill our national pledge of equal justice for 
all.
    I know that LSC can count on this Subcommittee as we strive 
to close the justice gap in our nation. I am happy to answer 
any questions you have at the appropriate time. Thank you.
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    Mr. Mollohan. Thank you, Mr. Strickland.
    Mr. Fortuno.

      Statement of LSC Interim President Victor Fortuno

    Mr. Fortuno. Chairman Mollohan, Mr. Wolf, thank 
you for holding this hearing and giving us an opportunity to 
testify on the fiscal year 2011 budget request.
    First I want to convey my deep appreciation to the 
Subcommittee for the bipartisan support provided to the 
corporation and its mission of ensuring that our nation's poor 
are provided equal access to justice.
    The Corporation is most grateful for the $30-million 
funding increase in fiscal year 2010 and for the increased 
funding provided over the last four years.
    It is my privilege to appear here before you today with 
Chairman Strickland who is a long-time champion of pro bono 
legal services for low-income Americans and is a champion for 
the legal rights of the poor. It has been an honor to know him 
and to work with him.
    Mr. Chairman, while the legal aid community understands the 
difficult funding choices that the Subcommittee faces, the 
justice gap is a harsh reality in our nation and the downturn 
in our economy has dramatically increased the number of people 
needing civil legal services.
    Millions of Americans are at risk of falling deeper into 
poverty and many are in danger of slipping into poverty for the 
first time. The numbers of people coming to our offices seeking 
help with foreclosures and unemployment benefits have 
understandably increased across the country.
    We have 54 million Americans who are eligible for LSC 
funded civil legal assistance. Eighteen million and a half of 
them are children.
    For low-income Americans, legal aid greatly improves their 
chances of keeping their homes rather than moving into a 
shelter, holding jobs rather than going on to public 
assistance, retaining custody of their children rather than 
losing them to foster care, receiving early medical care rather 
than costly hospitalization, and escaping abusive relationships 
rather than suffering injury and even death.
    Nearly three out of four of our clients are women, many of 
them struggling to keep their families together and their 
children safe.
    Just as the weak economy has severely impacted our clients, 
it has placed a great strain on the resources that support 
legal aid programs. Our programs are concerned about their 
ability to provide increased services in 2010 and 2011.
    For years, interest on lawyers' trust accounts--or IOLTA--
was a growing and significant part of the non-federal funding 
received by LSC programs. That funding is tied to short-term 
interest rates, which are now at unprecedented lows.
    At the same time, most state and local governments have 
experienced revenue shortfalls and they, too, are likely to 
reduce their support of legal aid.
    For fiscal year 2011, LSC requests an appropriation of 
$516.5 million. This is a request that clearly and aggressively 
reflects the Board's view that the need is critical and has to 
be communicated in any way possible, but especially in our 
request for funding.
    The request is the result of a determined effort by our 
bipartisan Board of Directors to help eliminate the justice gap 
in four years.
    Ninety-four percent of our requested appropriation--or $485 
million--would be distributed directly to the LSC programs as 
basic field grants to fund civil legal aid to the poor.
    Our request also provides for a continuation of our student 
loan repayment assistance program, which helps our programs 
recruit and retain talented lawyers, and it includes a proposal 
to expand our program of technology initiative grants to 
leverage the federal investment in civil legal aid.
    We are also requesting additional funding for management 
and grants oversight. The additional funds would help us 
deliver new web-based training on compliance, governance, 
fiscal operations, and best practices.
    In particular, we want to ensure the ability of LSC 
programs and their Boards of Directors to fully meet 
requirements and strictly comply with restrictions.
    In the past, management and grants oversight has 
represented approximately four percent of our appropriation. 
This year, we are in line with that. The request would be just 
under four percent. Our budget would also provide for some 
additional funding for the Office of Inspector General. These 
oversight efforts will help us be faithful stewards of federal 
funds.
    Chairman Strickland provided you with an update of our work 
with the Government Accountability Office, so I will not repeat 
the points made by him.
    But I do want to underscore that I fully share his 
sentiments on improving governance and operations, and our 
sincere commitment to implementing the recommendations to GAO.
    And at this point, I have concluded my prepared remarks and 
would be happy to answer any questions you might have.
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                    UPDATING THE JUSTICE GAP REPORT

    Mr. Mollohan. I would like to start by again commending the 
Legal Services Corporation for its good work and by reaffirming 
this Subcommittee's support. I can certainly speak for a good 
majority of the Subcommittee, and we support funding for Legal 
Services to provide legal aid to those who need it and are 
disappointed that there are so many people out there who make 
up this justice gap that we all talk about.
    I would like to point out that last year the House funded 
Legal Services at five million dollars above the President's 
request. That was considerably below your request, but five 
million dollars above the President's request.
    We also removed one of the restrictions having to do with 
fees, which may or may not help you in regard to your 
financing.
    We thought that we were in as good a position as we could 
be going into conference, whatever the Senate decided to do. 
The Senate, of course, came in with a number considerably 
lower. And it turned out that because of some of the issues 
with regard to the restrictions, we really were not in as good 
a position. That put us in a compromising position.
    Perhaps as we move into this year, we will be equally well 
positioned and we hope that it can move forward in a different 
way. My goal would be to preserve our funding level regardless 
of what the Senate's happens to be, which would create a base 
off of which we would be in a better position to help you in 
future years. The Administration would also be, I think, 
working off a different baseline.
    If our funding had been put in place, you would be working 
off a baseline of $440 million, and hopefully the 
Administration would have come in with some increase above 
that, which would have put you in a better position. If you do 
that year after year, it amounts to real money.
    LSC is not close to the funding levels and real services 
that it had at its high point. While that might be a reach, 
certainly in the short term and in the kind of budgetary 
environment we find ourselves, this path forward would at least 
put us in a better position to achieve the funding levels on 
the federal level that we would like to achieve. Just a comment 
as we begin our hearing.
    As you have described in your testimony, LSC recently 
updated its justice gap report to measure changes since 2005 in 
the unmet need for legal aid services. Given the state of the 
economy, pressures on grantee budgets and the fact that the 
eligible client population has increased by three million 
people, I would have expected to see the gap widening 
significantly. Instead, findings of your new 2009 report are 
extremely consistent with the findings of both your 2005 report 
and a 1994 report by the American Bar Association.
    Why do you think that the documented gap did not increase 
despite such anecdotal evidence that implies a greater unmet 
need?
    Mr. Fortuno. We, too, were surprised that the 
report did not show higher numbers being turned away. We were 
certainly aware of a number of very compelling state legal need 
studies that suggest that our justice gap report represents a 
significant undercount. We, however, thought it was best to 
take a very conservative approach.
    And while we believe that, in fact, it is an undercount and 
have the state legal need studies that indicate that, in fact, 
the unmet legal need is much greater, possibly as high as 90 
percent. But in the case of our justice gap report, any number 
of factors could have gone into that.
    One of the things that we have learned anecdotally is that 
our grantees reach full capacity. And once they reach full 
capacity and are unable to take on any additional cases, that 
then results in folks not getting in and being processed 
unless, of course, it is an emergency case.
    What normally happens is someone walks in, program has 
reached capacity and is unable to take on any new cases, those 
folks would not go through the intake process and would be told 
to come back. So there would be no determination as to 
eligibility at that point, so they would not be factored into 
our numbers. And only emergency cases would be picked up at 
that point.
    Mr. Mollohan. Well, the numbers are meaningless. If I 
understand you correctly, because you are at capacity and just 
cannot handle any more folks, you turn them away at the door 
and you do not count them. Unless you process them for 
eligibility, how would you know how many people you are 
actually turning away?
    Mr. Fortuno. And it would vary from program to 
program. But I respectfully submit that the numbers would not 
be meaningless. They are certainly not as meaningful as they 
could be, but they give us at the very least a low-end number 
of what the gap is.
    And that is what I meant by I think we have taken a 
conservative approach and that is why the state legal need 
studies that have been published come in at so much higher a 
figure in terms of individuals who are in need of a lawyer 
being unable to get one.
    Mr. Mollohan. Say that again. That is why the state studies 
comes in with a higher number of unmet needs?
    Mr. Fortuno. Yes. The state legal need studies 
suggest that the actual need is greater than is reflected in 
our justice gap report which has the one turned away for every 
one represented.
    Mr. Mollohan. What is the difference in their methodology 
that makes them more accurate?
    Mr. Fortuno. It is going to vary from state to 
state and survey to survey. I think that they are not 
necessarily as conservative as we are. They are not limiting 
their count to the number of people who actually make it in the 
door and are screened for purposes of determining eligibility.
    What we are looking at in our survey is the number of 
individuals who are eligible for services and would be 
represented but for the lack of resources.
    That screening may not have occurred in some of the 
studies. There are different methodologies. They come to 
different results. The one thing that seems to be consistent is 
they all come in with results of higher unmet need.
    I think that the numbers in 2009 justice gap report remain 
consistent with those of the 2005 report and reflect that we 
still have a one-to-one.
    We also have another factor to consider which is that when 
our programs do reach capacity and are unable to take any new 
cases, we have anecdotal information from our grantees that the 
word in the legal services community spreads and folks are 
discouraged from coming in. When they learn that the program is 
unable to take new cases, folks do not even attempt to be seen.
    But we do have, again referring to anecdotal information 
from our grantees, that, for example, our Tennessee programs 
turned away 75 percent. Our Arizona program turned away 38 and 
a half percent.
    Mr. Mollohan. So they had a process. Was that a more 
careful process?
    Mr. Fortuno. In addition to the information they 
provide to us for our survey, grantees do measure the need in 
their own ways. They may have a different methodology. They do 
so because it is important for their individual----
    Mr. Mollohan. So the justice gap is based on information, 
but it is also based on a lot of intuition and extrapolation 
and maybe a little bit of lag here and there.
    Mr. Fortuno. Well, in our case, I think some of 
the--some other studies maybe--I think ours does not involve 
much speculation. It involves hard and fast numbers, that is 
people who actually get through the door who are screened for 
eligibility, who are found to be eligible, they are not 
disqualified on the basis of----
    Mr. Mollohan. But just to be clear, that is inconsistent 
from program to program. It also does not include folks that 
come to the door and are told, ``we cannot handle any more 
people and we are not even screening you?''
    Mr. Fortuno. That is right.
    Mr. Mollohan. So it is definitely a low number.
    Mr. Fortuno. Yes.
    Mr. Strickland. It is also----
    Mr. Mollohan. I must say that I always assumed it was 
little more rigorous process to achieve that gap number.
    Mr. Strickland. I was going to say it is also very hard to 
measure, following on Mr. Fortuno's point about when 
the word gets around that a program is at capacity and a person 
simply does not come forward, it is very hard to measure the 
number of people who do not come forward and, therefore, will 
not be surveyed under any methodology.
    Mr. Mollohan. It is an important number because you use it 
pretty effectively to inform appropriators and policymakers as 
to what the need is out there. But you have been reassuring 
that whatever you are coming forward with is conservative.
    Thank you.
    Mr. Wolf.
    Mr. Wolf. Thank you, Mr. Chairman.

                      PRIVATE ATTORNEY INVOLVEMENT

    With respect to the justice gap, what activity is LSC 
currently undertaking in order to increase the involvement of 
private attorneys in pro bono efforts aimed at serving a 
greater number of lower-income Americans? Just what are the 
overall efforts and how successful and how deep is the pool? 
What percentage do you have participating? What is the 
potential percentage if all the law firms were to participate?
    Mr. Fortuno. Currently ten percent of the cases 
closed by LSC programs are closed by attorneys participating in 
the PAI Program of individual programs. So we do have a figure 
as to current involvement. We----
    Mr. Wolf. What is the number of attorneys around the 
country?
    Mr. Fortuno. I do not have but we can certainly 
get that information for you and provide it to the Committee. I 
do not know the number of individual attorneys participating in 
PAI programs offhand. I only know that ten percent of the 
900,000 cases a year that we close----
    Mr. Wolf. But that is not the question. The question is, 
how many attorneys are participating and----
    Mr. Fortuno. And what percentage of the legal 
profession?
    Mr. Wolf [continuing]. And what percentage of the pool are 
you now being successful with?
    Mr. Fortuno. I do not have those figures on hand. 
I can certainly check to see if we have those and provide them 
to the Committee.
    [The information follows:]

      Number of Private Attorneys Participating in LSC Activities

    In 2009, 34,000 private attorneys handled 103,753 cases for LSC-
funded programs--an increase of 11 percent from the previous year and 
over 11 percent of the total cases closed in 2009. We do not have any 
information about how many pro bono attorneys provide assistance at 
non-LSC programs, state bar projects, law school clinics, church and 
other non-profit pro-bono assistance, and other areas of pro bono 
assistance.

    Mr. Wolf. How aggressive are you out there asking others? 
Coming in today----
    Mr. Fortuno. We----
    Mr. Wolf [continuing]. Listening to the news, the story 
broke that at the Justice Department, there are a number of 
lawyers in the Administration, some with political jobs, others 
not, who were with very good law firms around the country and 
the pro bono work they were doing--one was the lawyer for Osama 
bin Laden's driver. And I just wondered maybe if that lawyer's 
time could have been to help people from the United States that 
really need the help.
    And I just wonder how aggressive are you and I would I 
would like to see the Committee ask for, if we can, Mr. 
Chairman, an in-depth analysis.
    Do you have a formal program? Have you hired people to go 
out and to encourage the Bar? I think most lawyers if asked and 
presented--it is sort of like I remember once hearing or 
reading the story about Tip O'Neill. He said that a lady across 
the street had voted for the other person and he said to her, 
Mrs. McGillicuddy, or whatever her name was, why did you vote 
for the other person. And she said Tip, he asked, he asked me 
for the vote.
    And I think sometimes you have to ask. And if you actually 
ask the average lawyer who I think would probably say yes, and 
I just wondered how aggressive is it and what formal program do 
you have? Have you gone outside to perhaps hire some people to 
actually--do you have a formal program with people on the staff 
that actually----
    Mr. Fortuno. We----
    Mr. Wolf [continuing]. Go out and encourage----
    Mr. Fortuno. Actually, what we have is, among 
other things, we have a requirement, a formal requirement that 
our grantees expend at least 12 and a half percent of their LSC 
funds or an amount equal to 12 and a half percent of their LSC 
grant on private attorney involvement which would involve 
recruitment, training, oversight.
    So there is a fairly substantial program out there that is 
mandated by regulation.
    Mr. Wolf. But is there a best practices that you have?
    Mr. Fortuno. We are----
    Mr. Wolf. The Memphis office has done the greatest job 
whereas the Nashville office has not? Do you have best 
practice?
    Mr. Fortuno. We are providing resources of that 
type, where information on best practices is made available so 
that successful experiences that some grantees have and can 
serve as----
    Mr. Wolf. Should it not be a formal best practices that you 
go out to every Director of every office saying here is what 
was done around the country and we know this has been 
successful, they did this type of program, they had a Saturday 
morning training program, they did a letter to every law firm? 
Should it not be a formal best practices? Would you submit that 
for the record what you do have?
    Mr. Fortuno. Oh, certainly.
    Mr. Wolf. But should that not be sort of standard?
    Mr. Fortuno. And I think a good deal of that, in 
fact maybe most of that is, but we would be glad to submit 
detailed information on the program that we have and how our 
grantees use that information and how they go about enlisting 
the aid of private attorneys.
    [The information follows:]

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    I know that our Board of Directors, in fact, has become 
very involved in that. And I do not know if the Chairman would 
like to speak to that or----
    Mr. Strickland. I would like to address that just briefly, 
Mr. Wolf.
    In 2007, the Board of Directors adopted a concept called 
help close the justice gap, unleash the power of pro bono. And 
we encouraged all of our grantee programs, we currently have 
136 grantee programs, we encouraged every one of those programs 
to adopt a similar resolution that is modeled after the one 
that our Board adopted in April of 2007.
    And to date, we are pleased to say that 109 out of 136 
programs have adopted a similar resolution that is designed to 
stimulate activity at the program level to encourage more pro 
bono work.
    That is more of a subjective approach as opposed to 
objective as we were not looking for particular numbers. We 
were just trying to stir the pot, if you will.
    Mr. Wolf. But should not--excuse me.
    Mr. Fortuno. And LSC does recognize its 
responsibility to use its national voice to further encourage a 
culture of private attorney involvement.
    I think that following up on what the Chairman was 
referring to, the Board of Directors when it meets away from 
Washington makes it a point of, at every away meeting, having 
the local grantees identify the leading pro bono providers so 
that they can be formally and publicly acknowledged and 
thanked. We prepare certificates of appreciation that are 
distributed at formal public events.
    Mr. Wolf. I understood. The question is, what number are 
participating and how does the participation level differ now 
both up or down than it was, say, five years ago and ten years 
ago?
    We are in a tight budget situation and when I was Chairman 
of this Committee, we always supported the legal services at 
the good rate, so we did not have in a sense a controversy. I 
think the poor need this. It is very, very necessary.
    We are also faced with a situation in the country, this 
Congress is somewhat numb to it on both sides of the aisle, but 
we have a situation that we have $37 trillion of unfunded 
obligations. We have $12 trillion of debt.
    And on that same news show, it said that the Chinese are 
ready to move its paper around. Moody says we lose our Triple A 
bond rating perhaps in 2013. We see the government agrees this 
is on the edge having lost its Triple A rating and the 
Government of Dubai in the same category, the government of 
Portugal, the government of Spain, and the government of 
Ireland, and there are people on both sides of the aisle that 
believe we are facing a fundamental crisis.
    And Dietrich Bonhoeffer who was the Lutheran pastor who 
stood up to the Nazis made the comment that a test of a moral 
society is how it treats its future generation. I have five 
children. My wife and I have a large sum of grandchildren. What 
are we transferring? And so this important.
    I stipulate the legal services, if my memory serves me 
right, the Congressman that I used to work for, Congressman 
Biester, Pete Biester, was very active with regard to in 
setting it up.
    But I just think from a reality point of view, the figures 
that I heard today were that in the year 2028, but the number 
was dropping, so it could be 2026, 2025, that every dollar that 
comes into the federal government will go out for four things, 
Medicare, Medicaid, Social Security, and interest on the debt. 
That does not cover legal services. It does not cover something 
that I think is important, to find a cure for cancer or to find 
a cure for autism or to find a cure for Alzheimer's or to find 
a cure for Parkinson's or to have the best education system in 
the country.
    And I appreciate the Chairman. Math and science and physics 
and chemistry and biology, none of them are entitlements. And 
so I am not really differing with what you are doing. God bless 
you. I think it is very, very important.
    But I think this has to be an area that is not just kind of 
a--I am disappointed. Even the number. The number ought to be 
right up here. You need to know Memphis has the best job. They 
have been out there. They have every lawyer in DeKalb County or 
whatever that is over there or in Atlanta. Every lawyer is 
participating.
    We have contacted every lawyer. We put in 15 different 
sessions because to bring them in--and I really believe, and to 
say something kind about lawyers, I believe that if asked to 
participate to be there, not just with a flyer, but with a 
visit and everything else, I think a large number will 
participate. So I think that is really where you are going to 
have to go in order that you can meet what is a necessary need.
    But when I look at the numbers that you have asked for 
here, there would be some that were saying this Administration 
is spending too much. The deficit this year will be $1.6 
trillion. You are actually asking $516 million which is $96.6 
million or 23 percent above fiscal year 2010 enacted level. And 
the President's budget is $435 million which is $15 million 
above.
    So you are above this Administration's request that many 
people believe is high--so I think you really have to make a 
major effort to reach out to the legal community and I believe 
if challenged and asked, I think they will participate.
    So I would like to know what you are really going to do 
rather than just say you have a resolution or----
    Mr. Fortuno. Well, certainly. And we will get 
back to you with concrete numbers and information.
    I think that what you will find is that a good deal of that 
12 and a half percent that grantees are required to expend on 
generating pro bono involvement goes to outreach, goes to that 
kind of making the ask.
    I think that because of the economic downturn, lawyers like 
everyone else have been impacted and so we may be seeing less 
of that, but we will have some specific numbers for you. We 
certainly believe----
    Mr. Wolf. You could contact some of the lawyers that are 
representing Osama bin Laden's driver and people who helped 
kill Americans in the 9/11 attack.
    And, I mean, the Administration was actually going to bring 
Khalid Sheikh Mohammed to New York City. The cost of trying 
Khalid Sheikh Mohammed in New York City would be over a cost of 
four to four and a half years, about a billion dollars.

                         RESTRICTIONS ON FUNDS

    So let me ask you this other question here. The 
restrictions on LSC grantees, the Administration's budget 
request proposes to lift the restrictions on the use of LSC 
funds for involvement in class action lawsuits.
    One common problem with class action lawsuits is that 
personal injury class actions, which are often settled, for 
example, offer lawyers huge fees while individual class members 
get only a few dollars each. As a result, lifting the 
restriction on fee collection while permitting the LSC funded 
attorneys to pursue class action cases could be very 
controversial.
    What are your comments about that?
    Mr. Fortuno. The Corporation has consistently 
expressed the view that we do not take positions--substantive 
positions--on restrictions. We simply implement the will of the 
Congress. We recognize that there are arguments that can be 
made for and against. Our Board has not authorized us to take 
any substantive position other than, as I said, enforcement of 
the will of Congress.
    And that is seen as recently as when the attorneys' fees' 
restriction was lifted. That occurred with our appropriation in 
the middle of December and the Board, within days, met to 
discuss the issue and then at its annual meeting in January 
proceeded with instructions that we publish an interim final 
regulation which brings our regulation in compliance with the 
rollback of that restriction.
    But whatever the requirement or restriction may be at any 
point in time, our position is that we faithfully implement the 
will of Congress.
    Mr. Wolf. And you are not seeking to change?
    Mr. Fortuno. We are here asking for funding. We 
are focused on the appropriation amount, not on specific 
restrictions, no.
    Mr. Wolf. I think that is important because John Erlenborn, 
who I thought was a fine person, did a great job in taking this 
whole issue out of the political involvement to see that LSC 
get back into the political involvement and some of things, I 
think, takes away, for instance, the controversy.
    So you are not asking the Committee to lift anything?
    Mr. Fortuno. No. We are not making any request 
with respect to restrictions, only as to funding.
    Mr. Wolf. What about the Administration's request here with 
regard to participating in class action suits? Do you have----
    Mr. Fortuno. We do not take a position as to 
that, no.
    Mr. Wolf. Thank you.
    Mr. Mollohan. Thank you, Mr. Wolf.
    Mr. Schiff.
    Mr. Schiff. Thank you, Mr. Chairman.
    And I know you are, I think, precluded from taking a 
position, but that does not mean you do not have an opinion. 
And I may ask you about that opinion in a little bit.
    Mr. Fortuno. My one concern about that, though, 
is that if I express a personal opinion that--sitting here in 
my official capacity as I do today--that that can be confused 
for the institutional view and so there is, I think, an 
overriding danger, whatever my opinion may be. So I would 
respectfully seek to answer the question without taking a 
position.
    Mr. Schiff. And you can do that, you know, by discussing 
the impact of the policies. And let me start by asking you 
about the policy that has just changed in terms of the attorney 
fees.
    Do you have any sense yet, have there been any analysis 
about what kind of additional revenue that may bring into the 
LSCs? And the second part of that question is, because there 
will be revenues coming in via attorney fees, will that create 
a pressure to take on more cases which can result in attorney 
fees as opposed to other cases which have a lesser capability 
of doing that?
    Mr. Strickland. Let me make a comment on that.
    Mr. Schiff, I want to give you some information I gleaned 
from the Executive Director of the Atlanta Legal Aid Society on 
the point of the lifting of the attorneys' fees' restriction. 
And he has been in his job for 25 years and in my view is one 
of the best Executive Directors of any of our programs.
    What he told me was this, that the dollars are not as 
important as the leverage. In other words, if you file a case 
and you have the right to claim attorneys' fees and you can put 
that in your complaint, that is a leverage factor that has been 
missing in terms of representation of the poor. Now it is back 
in play.
    In other words, his view was the leverage factor was 
considerably more important than dollars. So we do not have any 
numbers on what dollars might be at play, but leverage was his 
main interest.
    Mr. Schiff. Are you going to undertake an analysis to 
figure out what this will mean revenue-wise?
    Mr. Fortuno. Yes. Well, it is too early to say. 
We do not have numbers on which to base any kind of assessment. 
We are collecting that information and do hope to have that 
kind of information and assessment and analysis available come 
this time next year.
    Mr. Schiff. The only thing I would also suggest, and I 
think it is a positive change and one that I supported, is I 
think we do need to keep an eye on making sure that it does not 
distort the type of cases that LSCs take on given the 
financially strapped times so that there is a movement towards 
taking on the cases where you can get fees and shying away from 
others where you cannot, where there may be a more pressing 
need.
    I wanted to ask you about one of the other restrictions 
bearing in mind your caveat. This is one that I think I differ 
from Mr. Wolf on and that is the restrictions on the use of 
state and private funds.
    And I would be happy to defer to my colleague because I am 
surprised really that there is as much opposition to this as 
there is given that those that are usually very solicitous of 
the rights of states I would think would want, more want to 
have states decide how state funds can be used. But I want to 
understand the issue a little better.
    Mr. Wolf. Would the gentleman yield?
    Mr. Schiff. I would be happy to yield.
    Mr. Wolf. That was kind of a cheap shot to a certain 
extent. I have been a strong supporter of legal services. As 
legal services gets into these controversial issues, it begins 
to weaken it here in this body.
    As you begin to weaken--and when I was Chairman of this 
Committee, we protected legal services and I went against my 
party to make sure we brought it out with integrity. And so as 
you begin to add these controversies, and I do favor the 
states' rights. It was sort of an elbow there and I personally 
took it that way.
    That is not the purpose. The purpose is to help legal 
services and to remove all the controversy--there was a lot of 
controversy before you were even elected to Congress. So what 
we are trying to do is to go back whereby it is a 
noncontroversial, a good program that really helps the poor.
    Mr. Schiff. Reclaiming my time, Mr. Wolf, I do not consider 
it a cheap shot to say that there is inconsistency with people 
who advocate for states' rights when it is convenient and do 
not when it is not convenient. And that, I think, is the issue 
here. I have the time right now, Mr. Wolf. That, I think, is 
the issue here because we can disagree on a policy and that is 
fine, but do not claim that you are consistently a state right 
supporter here and that you are doing this to protect legal 
services because you can protect legal services in your state 
if your state legislator does not want these funds used in a 
certain way. So that is, I think, where we disagree.
    So what I would like to ask is how you see these state 
restrictions affecting the resources available to you to do 
your work?
    Mr. Fortuno. We can only speak to what we hear 
anecdotally from our grantees and it is what you would expect 
to hear which is that restrictions on non-LSC funds have an 
impact, have a tendency to depress private contributions 
because the funders may not want to have their contributions, 
their grants, their donations so limited.
    So what we hear anecdotally, we have not done any 
systematic study, but what we hear anecdotally and do not have 
any reason to question is that it has a suppressing impact on 
private and other non-government--well, actually, even 
government contributions.
    We have certainly seen the issue you are referring to. We 
have litigated against the state of Oregon. I personally have 
been deeply involved in the defense of the challenges against 
the restrictions since 1996. So we have had to defend these 
challenges coast to coast, with success coast to coast, 
including interestingly a challenge by a state, the state of 
Oregon, which was litigated and resolved in our favor--in our 
favor meaning in defense of the restriction.
    Mr. Schiff. Well, let me ask you this in an effort to see 
if there is a way to bridge the gulf between Mr. Wolf and 
myself.
    As I understand it now, all of the federal restrictions 
apply regardless of what the state of California says, 
regardless of what the state of Virginia says. They apply to 
the funds that the states put in and they apply to the funds 
that private parties put in.
    Are you aware of any circumstance in which states have 
imposed greater restrictions than the federal government has?
    Mr. Fortuno. Different may be greater. I do not 
know. We could certainly check and get back to you once we have 
looked for that. Offhand I do not happen to know of instances 
where the state restrictions have been greater than the 
federal.
    Mr. Schiff. And are there some states that have put in 
parallel restrictions, in other words, that have said that in 
this particular state, the funds that were provided LSCs cannot 
be used for any of the purposes for which the federal law 
prohibits federal contributions?
    Mr. Fortuno. I think there is not a need for them 
to do that because by federal law, that is, in fact, the case. 
And it may be that it is just because it is unnecessary, they 
have not been crafted that way.
    In fact, we have a regulation which is intended to create 
avenues for that alternative use, that is affiliated 
organizations, and that is where we get into the question of 
program integrity and whether there is sufficient separation.
    But you can have an LSC grantee, for example, in Oregon and 
an affiliate that does work that would not be permitted with 
LSC grant funds and that our grantee would not be permitted to 
undertake because they do receive LSC grant funds and so the 
restrictions apply to all their other funds.
    But there is that possibility. The dispute there focuses 
around whether that is a cost effective, efficient way of doing 
it. But there are means through which the state can tap some of 
the expertise and resources that are available out there in the 
legal services community to accomplish what they want to do.
    It is just that currently, under the existing structure, 
they cannot just funnel all the money into the grantee and 
expect that the grantee is going to be able to do everything, 
including things that are prohibited to the federal funds.
    Mr. Schiff. Would it put us on any better legal ground as 
well as help the financial situation of the LSCs if by way of 
bridging this difference in opinion we gave states the 
authority to impose whatever restrictions they deemed on the 
use of state as well as private funds so the federal 
restrictions would apply to the use of federal funds, but they 
would not apply to the state or private funds, but the state 
would be--each state would be empowered to set its own 
restrictions on the use of its funds as well as private funds?
    Mr. Fortuno. I think that is a matter of policy 
and drafting. I think it can certainly be accomplished, but it 
is not something that we would take a position on in terms of 
should it or should it not be----
    Mr. Schiff. But the impact of that, if I am articulating 
correctly, is if you repeal the prohibition on state and local, 
state and private funds, then the states would be empowered to 
set whatever restrictions they want on state funds, right? They 
would still retain that power----
    Mr. Fortuno. Yes.
    Mr. Schiff [continuing]. As long as you did not preclude 
them from doing that? So the additional impact, the sort of 
bridging of the divide here would be you could empower states 
to control private funds as well as their own state public 
funds; could you not? In other words, if you----
    Mr. Fortuno. LSC could not, but the Congress 
certainly could and we would implement that. But certainly 
something could be done. Again, it is a matter of policy and 
drafting and the legislation.
    But whether it is--the states having final say on what can 
be done with their funds or on LSC limiting the reach of our 
restrictions to federal and private funds but not state--those, 
again, are policy issues that we have not been authorized by 
our Board to address. But certainly it seems from a standpoint 
of can it be done, yes, it can be done.
    Mr. Schiff. The last question is, given the changes in the 
economy, what type of cases in particular have escalated? You 
probably have across-the-board increases, but has it been more 
in the area of foreclosure or in what areas have you seen the 
greatest rise?
    Mr. Fortuno. We have seen the justice gap report, 
the 2009 report, while it shows to one-to-one, in the area of 
foreclosure is showing two persons who are qualified--that is 
financially and otherwise qualified for services by a grantee--
who have to be turned away because of no other reason but lack 
of resources. So we are turning away two for every one that is 
represented. Clearly that is a significant increase.
    And in the employment area, we see more of that. So there 
are increases. But I think the more pronounced has been in the 
area of foreclosures and predatory lending.
    Mr. Schiff. Thank you.
    I yield back, Mr. Chairman.
    Mr. Mollohan. Thank you, Mr. Schiff.
    Mr. Honda.
    Mr. Honda. Thank you very much, Mr. Chairman.
    Again, welcome. Good to see you guys. You do good work 
and----
    Mr. Fortuno. Thank you.
    Mr. Honda [continuing]. I think that the state of 
California has benefitted by your work, but I think that the 
state of California and perhaps other states have suffered 
because of the impositions that Congress has placed upon you.
    I just want to state for the record that I recognize the 
position that sometimes we place you in with our questions. So 
I think, I am not an attorney, I am just a simple school 
teacher, and so I think I have to rephrase my questions in a 
way that would, you know, reflect our desires for you to do the 
kind of work that we see that is necessary.
    And so in my humble opinion, some of the restrictions that 
we have placed upon LSC has been counterproductive in terms of 
us being able to provide services that some of the folks and 
many of the folks in California has needed in the past.
    And I guess it is going to be dependent upon our judgment 
and our leadership and our direction to you in order for us to 
be able to articulate that which needs to be done and then 
cover it with the appropriate amount of money.
    And so having said that, my sense is that we need to allow 
the LSC to operate on behalf of Congress with the understanding 
that--I have the trust that you would do so with the full 
spirit of what we define as justice for all and that folks need 
representation as part of our value system regardless of their 
standing in our society. And so I would be working in that 
direction.
    I think that the ability of what I have seen in the past 
what our folks were able to do to leverage certain kinds of 
folks that are already in the community that wants to help and 
leverage on behalf of our clients that you are helping by 
lifting some of the restrictions, I think, does make sense 
because I do not want to send a gunfighter into a gunfight with 
a muzzle loading rifle when everybody else has automatic 
weapons. And I think that it does not set up things for a fair 
fight where justice needs to be served.
    So I really do appreciate this. I think I know how to 
answer my own questions. But just to express, and it took me a 
couple years to understand, the frustration I had when I was 
asking a lot of questions and I was trying to elicit, you know, 
responses from you that I wanted to hear, but you consistently 
say, you know, whatever you guys say.
    Mr. Fortuno. And I think we are here in our 
official capacities, so we present the institutional view. I 
know that----
    Mr. Honda. Yes.
    Mr. Fortuno [continuing]. You know, we all have 
personal views, although my wife tells me what mine are. But we 
do have our own personal views. But when we sit here, we sit 
here as representatives of the institution-presenting their 
views.
    And as I said earlier, my concern is that the expression of 
a personal view, whatever it may be, might be mistaken for the 
view of the institution. And if we had not been authorized to 
communicate that, I think it would be inappropriate for us to 
answer.
    Mr. Honda. Yeah. And I appreciate your high level of 
professionalism and self-discipline.
    Mr. Fortuno. Thank you.
    Mr. Honda. And I guess it really tells me that I have to 
tell you what I really want and why. And so I guess I met the 
enemy and it was me.
    Mr. Chairman, thank you very much for this opportunity.
    Mr. Fortuno. Thank you.
    Mr. Mollohan. Thank you, Mr. Honda.
    Mr. Fattah.
    Mr. Fattah. Thank you, Mr. Chairman.
    Let me welcome both of you before the Committee. And to the 
Chairman, I know through your information provided, you are a 
former Commander in the United States Coast Guard and you were 
formerly involved in a lot of activities, including General 
Counsel to the Republican party in Georgia and head of the 
Republican Lawyers Association.
    So it is good to see that there are Republicans and 
Democrats alike who find it appropriate under our Constitution 
to work to ensure that everyone has the opportunity to seek 
justice under our legal system.
    And to our Director here, Philadelphia, I mean, I think the 
best place to find people to lead major----
    Mr. Fortuno. I could not agree more.
    Mr. Fattah [continuing]. You look to Philadelphia.
    Mr. Fortuno. I could not agree more.
    Mr. Fattah. And so Community Legal Services is where you 
got your start in the District Attorney's Office. And I am glad 
my colleague who is actually a former Philadelphian has 
returned to the room, Chairman Wolf, Representative Wolf.
    And I just want to clear up some things that were said and 
I have no intentions of throwing any elbows. I do want to get 
the record straight.
    Legal Services Corporation is not providing any lawyers on 
behalf of drivers, cooks, bottle watchers for Osama bin Laden 
under any circumstances, right?
    Mr. Fortuno. That is my understanding, yes.
    Mr. Fattah. Put that on the record because sometimes you 
hear this, you know, a lot of what is said around here, and 
people who are not paying attention can get the wrong 
impression, right? So we can clarify that in no way, shape, or 
form.
    Secondly, as a former Assistant District Attorney in 
Philadelphia, I do want to say something. There is going to be 
an announcement apparently today that the Administration has 
worked something out and there is not going to be this big 
trial in New York of Khalid Sheikh Mohammed. If someone had 
conducted a crime of such a horrendous nature in Philadelphia 
and thousands of our citizens were killed, we would be proud to 
host a trial to go and make sure that justice was served, 
assuming the guy could live long enough to get to trial. All 
right?
    So this notion that America should be afraid of putting 
people on trial or hosting a trial somewhere to get a bad guy I 
think is nonsense. And it is a disservice to many, many people 
in our country who are not afraid to--you know, and I'm glad 
this Administration is killing and capturing bad guys all over 
the world. And we shouldn't be afraid to use our judicial 
system as one of the tools to go after them.
    But I do want to thank Legal Services for the work that you 
are doing on behalf of millions of Americans. You know, when 
Dr. King had the great march on Washington he said that, you 
know, ``Let us not be told that there are insufficient in the 
vaults of justice in this country.''
    And what he was really saying in the Poor People's Campaign 
was that poor people need to have access to the court. And 
class actions is a good example. If you have an entity that 
is--you know, we had this problem with proprietary on higher 
education institutions ripping off poor people all over the 
country with false educational opportunities, accessing 
millions of dollars of federally guaranteed student loans. If 
you couldn't go in on a class action, you would have to go upon 
each individual student and go after each individual situation.
    So class actions have an--you know, both can provide the 
taxpayers a protection when Legal Services operates and also 
help many, many more people.

               MANAGEMENT AND ADMINISTRATION OF PROGRAMS

    So I just want to thank you for what you are doing. I do 
have some particular questions. The costs in your budget now, 
Legal Services, can you tell us a little bit about healthcare 
and what is happening with your premiums over the last 12 to 24 
months?
    Mr. Fortuno. Meaning the premiums of our 
grantees? I don't have specific information here at hand but 
can provide that. I think that what--I would be surprised if it 
was anything other than increasing. I know that there has been 
an increase in the premiums for our own staff. That is, the 
staff at the corporation.
    Mr. Fattah. Right.
    Mr. Fortuno. But I don't have the specific 
numbers on what it is across the country in our various 
programs. But we should be able to acquire that information for 
you.
    Mr. Fattah. Okay. Now your request this year is--and the 
Chairman worked very hard. And I do want to compliment our 
former Chair, Congressman Wolf. I was on the Committee when he 
chaired this. And he worked very hard against a lot of 
obstacles in his own party who didn't see the wisdom of 
continuing to support Legal Services. So I do want to thank 
him.
    But in your request for an increase, I noticed a 
significant amount is in the management and oversight area, 
which is, you know, obviously you get--most of our interest is 
in your management and oversight. And you need to find an 
ability, because grantees are operating as independent agents 
all over the country.
    So this 80-plus million in increases is the most 
significant part thereof of your request; is that correct?
    Mr. Fortuno. The most significant increase would 
be to basic field. In terms of management and grants 
administration, we are asking for an increase of over $2 
million over what we got for 2010.
    That is for purposes of increasing and stepping up 
oversight. The board of directors has authorized a hiring of 15 
persons to go into that part of the operation--that is, grantee 
oversight.
    The two-plus million would be salary to accommodate that--
annualize it--and account for corresponding increased costs. 
But the largest component of the increase is clearly oversight. 
It is to step up and improve oversight of and guidance to 
grantees.
    But we also have a training component there where we talk 
about having web-based training that would provide training to 
grantees and to their boards of directors with a focus on the 
boards being oversight, internal controls, and proper oversight 
of grantees.
    Mr. Fattah. Okay. Well let me thank you, and let me thank 
the Chairman for the time. And I think that you know, given the 
work of this Committee and the leadership of our Chairman, that 
we are very interested in trying to make sure that Legal 
Services can continue and improve to close this justice gap.
    And, again, with the leadership of someone from the 
greatest city anywhere in the world at the helm, I am feeling 
even more confident that we are going to find room to be 
favorable about working towards your requests.
    So thank you, Mr. Chairman.
    Mr. Mollohan. Thank you, Mr. Fattah.

               TRENDS IN FEDERAL AND NON-FEDERAL SUPPORT

    Gentlemen, I would like to walk through your funding file 
and understand more clearly where your money actually comes 
from and how much of it is contributed by the federal 
government, recognizing that in every program and every state 
it is different.
    But give us some idea of where dollars are coming from and 
at the end of the day how much of the resources used by Legal 
Services across the country come from the federal government. 
Could you do that for me, please?
    Mr. Fortuno. I can certainly give you some of 
that information. I think that non-LSC funding has steadily 
increased from 1996 through 2008. We went from 41 percent to 
almost 60 percent.
    Mr. Mollohan. Forty-one percent of what? Sixty percent of 
what?
    Mr. Fortuno. That is our grantee's funding back 
in 1996 was 41 percent non-LSC nationwide. We are talking 
national averages. So 41 percent of what our grantees--the 
funding they had--was from non-LSC sources.
    That was in 1996. In 2008, we were up to just under 60 
percent. I am told it was 59.8 in 2008. Now, as might be 
expected because of the economic downturn, we have seen a 
dramatic decrease in those non-federal funds.
    Mr. Mollohan. That trend you just described would have as 
much to do with the decrease in the federal funding as it would 
with an increase of the non-federal funding?
    Mr. Fortuno. I think that if federal funding were 
to go down, then certainly that would impact on the percentage.
    Mr. Mollohan. Right. It surely did between 1996 and 2008. 
Based on the fact that you are going down, one could conclude 
that LSC funding remained constant, maybe in real dollars.
    But you had a real increase in non-LSC contributions. Is 
that the case, or did you have both? Did you have a decrease in 
LSC funding and an increase in outside funding? That is quite a 
dramatic shift, actually, from 40 to 60 percent. Maybe it was 
both.
    Mr. Fortuno. Yes. And I think that--this from our 
2008 book. I was just handed a page that has some figures on 
funding type, amount, and percentage. I think that, again, this 
wouldn't respond to the question of--since LSC funding is not a 
constant, since there are variations there, it is difficult to 
glean terribly much from the percentage rise in non-LSC 
funding.
    Mr. Mollohan. Well, we are going to get to the current time 
period. I just want to understand a little bit more about the 
1996 to 2008 history.
    Let me lead you through it a little bit.
    Mr. Fortuno. Okay.
    Mr. Mollohan. Then you tell me where I am leading in the 
wrong direction. In 1996, you say non-LSC funding was 41 
percent of your overall--legal services programming funding. 
And LSC funding decreased pretty dramatically from 1996 to 
2008; did it not?
    Mr. Fortuno. Yes. There were decreases. The last 
four years have certainly been better. But prior to that there 
were decreases.
    Mr. Mollohan. Well in 2006 then maybe, sir. So now 60 
percent of the resources are non-LSC funding, correct?
    Mr. Fortuno. That was as of 2008. The percentage 
has decreased since then.
    Mr. Mollohan. Is that because federal funding has 
increased, or outside funding has decreased, or both?
    Mr. Fortuno. I think it is a combination of both. 
I think that federal funding has increased. And that would 
impact on the relative percentages.
    Mr. Mollohan. Well then let us take them one at a time. LSC 
funding has increased. We know that. What is happening to non-
LSC funding?
    Mr. Fortuno. Non-LSC funding----
    Mr. Mollohan. In real dollars.
    Mr. Fortuno [continuing]. We have, for example, 
IOLTA. We don't yet have the final numbers. But from the 
figures we do have, one thing that is clear is that there is a 
very sharp decline. We estimate that there will be a drop from 
33 to 50 percent in IOLTA and similar drops in----
    Mr. Mollohan. You already had a drop in IOLTA. Do you mean 
a further drop?
    Mr. Fortuno. A further drop. That is between--
from 2009--from 2008 to 2009, there was this drop we are 
estimating to be 33 to 50 percent. And we are expecting a like 
decline in 2010-2011.
    There had been a similar decline in local government 
funding.
    Mr. Mollohan. You mean another 50 percent decline?
    Mr. Fortuno. Yes.
    Mr. Mollohan. On top of the first 50 percent?
    Mr. Fortuno. That is correct.
    The state government support has not suffered as much as 
the local government and IOLTA. But those two are major sources 
of non-LSC funding. And they clearly have been impacted 
adversely.
    Mr. Mollohan. So state government support is going down.
    Mr. Fortuno. Yes.
    Mr. Mollohan. Okay.
    Mr. Fortuno. All three, state less than local. 
But certainly local going down about as much as IOLTA.
    Mr. Mollohan. Well no matter what the federal government 
does then it doesn't look----
    Mr. Fortuno. It doesn't look good.
    Mr. Mollohan [continuing]. Sanguine.
    Mr. Fortuno. Which is why we have come to you 
with an aggressive budget request. It's because I think that 
when our nation encounters a hardship, I think it is the poor 
that are generally the first and worst affected by it. And I 
think this one has been no different. I think that the poor 
have been disproportionately impacted by it. I think that the 
need is increasing.
    And so we have an increasing need. And at the same time 
these other sources of funding are dwindling. So that is why we 
have come to you with what clearly is an aggressive funding 
request.
    Mr. Mollohan. Yes, and you should. You should be 
aggressive. You are aggressive here today with us. What are you 
doing outside of LSC funding to try to correct this or to check 
this trend, if not to reverse it?
    Mr. Fortuno. What is LSC doing outside of its 
request to the federal government?
    Mr. Mollohan. Absolutely.
    Mr. Fortuno. We certainly are encouraging our 
grantees to be aggressive about fundraising. We are trying to 
help them with information that can be valuable to them, that 
can be used by them, with guidance, with best practices.
    Mr. Mollohan. Well I hear you saying all those things. I 
want to understand how much energy is behind them. How much 
real effort is out there? Do you have a program out there to 
encourage your grantees to develop other sources of funding or 
to be more successful in their conventional sources of funding?
    Mr. Fortuno. We don't have--we don't have a 
program----
    Mr. Mollohan. Should you?
    Mr. Fortuno [continuing]. That is specifically 
staffed for that purpose. The same way that we don't have a PAI 
office that is staffed exclusively for that purpose.
    Mr. Mollohan. Yes.
    Mr. Fortuno. Some of our grantees do. And that is 
part of what they use to----
    Mr. Mollohan. Yes, I know. But nationally should you be 
ringing the bell? Tell me what you should be doing, or could 
you be doing more in this area?
    Mr. Fortuno. We recognize that this is a complex 
issue and that funding has to involve a multi-faceted approach. 
So we certainly recognize that there are a number of different 
dimensions to this that need to be explored and that are not 
fully exploited right now.
    But we are doing things along the lines that have been 
asked about here. Maybe not in the structured, have a specific 
unit set aside to come up with innovation, to generate 
innovation, to do more in the way of communicating best 
practices and to develop the----
    Mr. Mollohan. Well, the Committee would like for you to 
submit for the record in a reasonable time frame, which you can 
work out with staff, a plan that addresses enhancing your non-
LSC resources.
    Mr. Fortuno. We would be happy to.
    Mr. Mollohan. If you would.
    Mr. Fortuno. Yes.
    Mr. Mollohan. I would think if you needed someone to take 
on that mission full time, we would want an estimate of whether 
that would be money well spent.
    Mr. Fortuno. Mm-hmm.
    [The information follows:]

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    Mr. Mollohan. There is an irony here, a couple of them. 
However hard Chairman Wolf fought for LSC during the time he 
was Chairman, he was still up against a less favorable 
political and philosophical environment.
    You are in a very favorable political environment from the 
executives through the Congress but what I am hearing is you 
are actually going to have less resources to address legal 
needs of the poor than we have had in the past, during a time 
when those needs are increasing because of the economic 
circumstances.
    I don't think when the President asked two years in a row 
for the same requests, and I would like for him to have been 
working off another baseline, just to put that in there again, 
that doesn't look really encouraging. Especially given the 
overall budgetary situation we are facing.
    So wanting to do as much as we can to get those resources, 
I would like to see how you are working harder outside LSC 
funding to achieve that with the programs across the country.

                  ACTIVITIES OF AFFILIATE ORGANIZATION

    With respect to your activities and the activities of your 
grantees, am I correct to some extent, and tell me if I am not, 
that a lot of the things that the restrictions address are 
being done in separately stood up organizations? Is that 
correct or incorrect?
    Mr. Fortuno. Yes. Affiliate organizations are, as 
are organizations that are not affiliated. But, yes, there are 
other channels through which those activities can be 
undertaken.
    Mr. Mollohan. Well it can be, but I'm asking are they? That 
is my question.
    Mr. Fortuno. Yes.
    Mr. Mollohan. I know it could be. Could you give us an 
example or two? How does that work?
    Mr. Fortuno. We receive requests for guidance 
from grantees on a periodic basis where they ask whether there 
is sufficient separation between them and an affiliate. I can 
certainly put together numbers as to how many of those we are 
aware of. There may be any number that we are unaware of. But 
we can certainly share with you the information concerning any 
of those that we are aware of and provide some detail on that.
    [The information follows:]

                     Use of Affiliate Organizations

    At present, LSC is aware of approximately 30 affiliate 
organizations. For LSC purposes, affiliate organizations are entities 
that closely coordinate with an LSC grantee in a variety of ways. These 
include: sharing overlapping board members and part-time staff, and 
providing other services such as intake, advice and transfer of non-LSC 
funds to the affiliate. Affiliated entities usually work outside of the 
restrictions, but LSC has strict requirements that grantees maintain 
Part 1610 program integrity--objective integrity and independence--from 
any entity engaging in restricted activities. Program integrity 
requires legal, physical and financial separation, and no provision of 
LSC funds to the other entity or subsidies of restricted activities.

    Mr. Mollohan. Well I guess my point is that, in an 
imperfect world, this activity would appropriately be 
undertaken by LSC grantees if it were not for these 
restrictions. But those desires are actually being met by 
organizations, however inefficient it might be, by setting up a 
fire walled sort of arrangement or structure; is that not 
correct?
    Mr. Fortuno. Yes. I think it is largely not an 
issue of whether the work can be undertaken. It is an issue of 
by whom and whether it is efficient.
    Mr. Mollohan. Yes. Democracy and conflicting philosophies 
sometimes are inefficient. We pay a price through the 
inefficiency to accommodate all of those interests and to 
achieve the consensus goal, which Mr. Wolf represents, of 
getting funding for LSC up. So those are the choices sometimes 
we have to make.

                       GOVERNANCE AND MANAGEMENT

    I would like to try to update the record with regard to the 
governance and management issues that GAO raised. First of all, 
let me compliment you on working on them.
    I understood that it was represented here last year that 
everything was okay. But I learned this year that perhaps, and 
maybe it is a technicality, while significant progress has been 
made, all of these issues have not been completed.
    So just one more time for the record, if you will: Could 
you clarify for us how many of the GAO recommendations you have 
completed, how many have already been submitted to GAO for 
final review, and how many might be outstanding?
    Mr. Fortuno. I believe there were two in recent 
years, two GAO reports. The first was on governance. The second 
was on grants oversight. I think we had a total of 17--if I'm 
not mistaken, 17 recommendations of which nine have been 
fully--the Corporation has accepted all of them--the 
recommendations as to nine have been fully implemented.
    What remains is the other eight now. My understanding is 
that as to three of those eight, it is a matter of whether 
sufficient documentation is available so that the Corporation 
is confident that the documentation that is being made 
available will satisfy the GAO. That at least those three have 
also been fully implemented, which would take us to 12.
    Leaving five yet to be implemented. They revolve around 
things like oversight of management processes. So what is 
happening is at the April board of directors meeting, one of 
the items that is going to be taken up is how to do that. We 
have a part-time board that meets four to six times a year.
    So how do they accomplish this oversight of management 
processes--whether they delegate that to a committee, whether 
someone on that committee spends a couple of days at the 
corporation every six months or so, whether they hire a 
consultant? Whatever the process may be, that is what will be 
discussed by the board in April.
    So steps are being taken to implement the remaining 
recommendations. As I said, nine of the seventeen. GAO, in 
fact, has already testified before our Senate Subcommittee, the 
Judiciary Committee, that they have been implemented. And that 
we have made real progress. And that we are on the road to 
resolving the others.
    In addition to those nine, we think we have another three 
done for a total of twelve. And then what remains are five, 
which we are still working on.
    Mr. Mollohan. Do you have an estimate of when you might be 
finished implementing?
    Mr. Fortuno. I don't know that----
    Mr. Constance. All will be done this year.
    Mr. Fortuno. I think we are confident that----
    Mr. Mollohan. This calendar year, fiscal year?
    Mr. Fortuno. Calendar year.
    Mr. Mollohan. Okay. Understand that these questions are in 
the spirit of trying to get these things off the table, so we 
take away any criticisms of those who might be less supportive 
of the program.
    Mr. Fortuno. And I might add that the 
recommendations have been taken very seriously. It is not just 
paying lip service.
    You know, examples the board--GAO recommended the adoption 
of specific charters, something more substantial than in fact 
was in place up until then. The board has done that and, in 
fact, started looking at whether things like the requirement of 
an audit committee. The board established an audit committee, 
which it didn't have heretofore. And is actually looking at 
whether that is advisable in the context of our grantees and 
has had some discussion about that.
    So clearly the recommendations made by GAO have not only 
been accepted but have been embraced. And in addition to 
implementing them for LSC, LSC is looking at how else they can 
be of value and used, because I think LSC's experience has been 
that those were good, helpful recommendations.
    Mr. Mollohan. Okay. Can you formally respond to the 
separate allegations that were made in the Washington Times 
last summer about improper expenditures by grantees? Have you 
finished your investigations? Do you have recommendations?
    Mr. Fortuno. That may be. If I am not mistaken, 
that is probably what has sometimes been referred to as the 
natural stone on one of our grantees building.
    A grantee in Texas built an office. And there was some 
imported natural stone that was used. The matter was 
investigated by our OIG. They reported to management. 
Management initiated--questioned cost proceedings. In fact, 
succeeded in having--the program agreed, I should say, to 
having the cost of that born by some other source so that no 
LSC funds were used.
    In fact, it is actually an example of how the system works 
and can work, which is as you might expect. We are all human, 
and we are talking about a lot of people in the program. On 
occasion mistakes in judgement are made.
    We like to think that we have a system in place that will 
help not just deter but when mistakes in judgement occur, 
identify them and then trigger the system as it did in this 
case. And ultimately what happened was no LSC funds went into 
the purchase of that stone that was used on the exterior of the 
building.
    That is the one I can think of from last summer. I am not 
sure if there is another.
    Mr. Constance. We can respond on the record for the rest.
    Mr. Fortuno. We would be happy to respond.
    [The information follows:]

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    Mr. Mollohan. That is fine. Respond for the record.
    Mr. Fortuno. Yes.
    Mr. Mollohan. Yes. Do you feel scrutinized?
    Mr. Fortuno. No. I think it is appropriate.
    Mr. Mollohan. I didn't say it was inappropriate. I said do 
you feel scrutinized?
    Mr. Fortuno. Yes. But I would expect no less.
    Mr. Wolf. Thank you, Mr. Chairman.
    Before I get into a couple of questions, and my good friend 
Mr. Fattah, I just want to kind of respond back. I am from 
Philadelphia. You are from Philly. I was out there with some 
constituents.
    Mr. Fortuno. Yes. I was with a Legal Services 
program, an LSC funded program in Philadelphia and then with 
the DA's office back when----
    Mr. Wolf. Where in Philadelphia?
    Mr. Fortuno. Where in Philadelphia? I lived in 
Center City. I am originally from New York. I was born and 
raised in Hell's Kitchen. But I spent my first seven-eight 
years practicing law in Philadelphia.
    Mr. Wolf. I was born in South Philadelphia and raised in 
South Philadelphia.
    Mr. Fortuno. I know South Philly well.
    Mr. Wolf. But the comment that Mr. Fattah made, what I was 
inferring to was the report today and not inferring that Legal 
Services was involved in that.
    But there was the comment that the person who was 
representing Osama bin Laden's driver was working in the 
Justice Department. And 35 of the top 50 law firms in the 
country have done pro bono work representing Guantanamo Bay 
people. And I would be interested if you would, for the record, 
let me know if these 50 law firms are also participating in the 
Legal Services. So if we could get that answer.
    [The information follows:]

    Pro Bono Work by Firms Who Represented Guantanamo Bay Detainees

    LSC does not have any information on the national law firms who 
have represented Guantanamo detainees and if they have also done pro 
bono work at LSC grantees. While many LSC grantees have relationships 
with large law firms in their state to encourage private attorney 
assistance, we do not know whether they have also represented detainees 
at Guantanamo.

    The other question that he was raising about not being 
afraid, and I feel an obligation on behalf of the families, 
there were 30 people from my District who died in the attack on 
9/11.
    In 1998, I had come back from Algeria where 175,000 people 
were killed. And I introduced a bill to create the National 
Commission on Terror. Both sides of the aisle ridiculed me, my 
side and the other side.
    I said when I introduced the bill that Osama bin Laden 
lived in Sudan where I had been a number of times for five 
years. In the end we passed the bill. It was the Bremer 
Commission. And both the Bush Administration ignored the 
recommendations, as did the Clinton Administration.
    No one is afraid of this trial. The reasons the concern 
about--particularly many of the families who have lost loved 
ones is they see the cost of trying Khalid Sheikh Mohammed in 
New York City would be roughly a billion dollars. The City of 
New York was asking for $206 million a year.
    And Moussaoui was tried, if you recall--the 20th hijacker 
was tried in Alexandria. Tried before there was the Patent 
Trademark Office, before there was the hotel across the street, 
before the condominium, and it tied up the area. He was there 
for four and a half years.
    So if Khalid Sheikh Mohammed is in New York City for four 
and a half years, the cost would be over a billion dollars.
    Secondly, Khalid Sheikh Mohammed is not an American 
citizen. If you are in the military, as you know, and you do 
something wrong, you go through the military system. I think to 
give Khalid Sheikh Mohammed greater rights than we give an 
American man or woman who serves in the military is wrong.
    Thirdly, he acknowledged that Khalid Sheikh Mohammed 
beheaded Daniel Pearl. I mean, does anyone care about the pain 
and agony of Daniel Pearl's wife and his family? He has 
acknowledged too that he was the mastermind of the 9/11, which 
resulted in death for a number of people from my area.
    Fourth, no one is afraid of course. But Sheikh Rahman, who 
was convicted for the 1993 World Trade Center attack, was 
sending things out through his lawyer if you recall. And she 
was later prosecuted. Also incarcerate terrorists stabbed 
Officer Pepe in the eye. And there are many other 
ramifications. And if you talk to people who were guards down 
in Guantanamo Bay, they wear a blank name tag over their name 
tags so their names are not there. And so the ramifications, 
and then you can take it into traffic and take it into many 
other areas.
    So I have the bill in the House; Lindsay Graham has it in 
the Senate. There are Democratic members on the bill that I 
have that says basically do not try him in a civilian court. 
Try him in a military court, either in Guantanamo Bay or a 
military base in a remote area somewhere in the United States.
    I just felt an obligation to kind of put that into 
perspective. And also lastly, to think of the pain, and the 
suffering, and the agony of those policemen. My dad was a 
Philadelphia policemen, the policemen, the firemen, Deborah 
Burlingame who is the sister of a fellow from my District who 
was the pilot of the airplane that went into the Pentagon. And 
the hurt and the pain that they have gone through. I wanted to 
put it into context of what my concerns are.

                     WORKING WITH BAR ASSOCIATIONS

    The two questions in addition to the list of the top 50 
firms, there are two questions. I will ask them together. One, 
when you are paying your bar dues, does any of that go to Legal 
Services? I think that would be a very appropriate thing. I pay 
my bar dues. I am not practicing, but I have kept a portion of 
it. Does any of that go?
    Secondly, I had a bill in that gives a tax credit for 
doctors who participate in helping people who don't have 
healthcare. We have some free clinics in my area. We encourage 
doctors to come in. And so we put it in such a way that if you 
are a doctor and you participate in the free clinic, you will 
get a tax credit because your time, and as a lawyer your time 
is valuable.
    And so the two questions are, one, has that ever been 
looked at with regard to a tax credit for a lawyer or an 
individual who participates and gives his or her time. Although 
fitting it to the IRS regulations that obviously that they 
have.
    And secondly, does any of the money that goes into the bar 
dues, for instance, when you pay into the D.C. Bar or the 
Virginia Bar, whatever bar it is, is there any that goes to 
Legal Services?
    Mr. Fortuno. I can maybe take that in reverse 
order. Whether the tax credit approach has been explored, not 
to my knowledge. Although I like the idea and--certainly keep 
lawyers in mind when exploring that kind of approach.
    As to the bar dues, obviously that is a matter of local 
control, and it can vary. It does vary from state to state and 
the purposes to which they put the dues. In some instances, it 
is to the regulation of the lawyers in that jurisdiction. But 
whether any portion of dues goes to Legal Services, I don't 
know that there is a specific set-aside.
    Although in some instances they do have--the Bar 
Association may have a foundation which provides funding. We 
certainly do receive funding from the organized bar. There has 
been a significant drop this past year along with all the other 
sources of non-LSC funding. There has been a significant drop 
in contributions from the Bar.
    But whether any given state devotes any of the revenue 
received from bar dues to Legal Services would be a matter of 
local control.
    Mr. Strickland. Let me comment. May I comment on that also, 
Mr. Wolf?
    In many states, as you know, you have what is called a 
mandatory bar and Georgia being one of those states. And there 
was a case coming out of California known generally as the 
Keller case, having to do with what you can do with dues 
derived from a mandatory bar. For example, you can't do any 
legislative lobbying with mandatory bar dues.
    I say that just to comment on your question. There are some 
limitations on what can be done with mandatory bar dues.
    Mr. Wolf. Could there be a possibility of in the Bar 
Associations of having a check that you can add $5.00, $10.00, 
whatever the case may be, to Legal Services?
    Mr. Strickland. We had an experience on that in Georgia. We 
had both good and bad results. But I need to tell the whole 
story.
    One year the Board of Governors, on which I have served for 
25 years, voted to do a checkoff such as you are describing for 
the Georgia Legal Services Program. And it generated $800,000. 
So the following year--but it did so at the expense of another 
checkoff program for the legislative fund.
    As I said a moment ago, you can't use mandatory bar dues 
for legislative lobbying. Well the following year, a proposal 
came before the Board of Governors to flip that. In other 
words, it was such an overwhelming success and at the same time 
a penalty if you will to the legislative work.
    I thought it was really a sorry day for the Board of 
Governors for the State Bar of Georgia, which voted exactly 
that way. In my view, in favor of legislative lobbying and to 
the detriment of the following years raise for Georgia Legal 
Services.
    I don't remember the precise numbers. I do remember the 
800,000 number, because it was more than twice as much as had 
ever been raised for Georgia Legal Services in a fundraising 
effort as opposed to a dues checkoff.
    So that has been--I don't want to leave you with a 
completely negative impression of the State Bar of Georgia. 
However, there is a Bar Foundation, as Mr. Fortuno 
mentioned, that people do contribute do on a voluntary basis 
that generated probably in the neighborhood of a half million 
dollars a year for direct allocation to Legal Services in our 
state.
    Mr. Wolf. Well I think it would be a good idea. My sense is 
that if perhaps we could approach, you know, maybe the 
different Bar Associations to see if you could do a pilot 
program that way, because there are many attorneys. I think it 
is sort of never asked. I am not really quite sure what way to 
go. But if given the opportunity, they may very well be anxious 
to participate.
    And you would like the idea with regard to the tax credit? 
Is that what you were saying?
    Mr. Strickland. I think that is a real interesting concept 
that we should look into.
    Mr. Fortuno. I think both are good ideas. You 
know, there are any number of others. I know I have always been 
particularly partial to, although I am not sure how well it 
would be received, to a set-aside from punitive damages. You 
know, that is sometimes done at the federal level or the state 
level by state law. I don't think it exists at the federal 
level. But I have always been interested in that. Although it 
is not something we have formally explored, and it may not have 
anything to offer.
    Mr. Wolf. Well, let us look at these, and we will see. And, 
again, thank you.
    Mr. Mollohan. Okay. Thank you, Mr. Wolf.
    Mr. Strickland. One more thing for the record----
    Mr. Mollohan. Yes, sir.
    Mr. Strickland [continuing]. On my comments on the State 
Bar of Georgia.
    Mr. Wolf. You are running for presidency of that Bar.
    Mr. Mollohan. We are moving up to votes.
    Mr. Strickland. Okay, I'm sorry. I was just going to say my 
law firm stopped contributing to the legislative program. That 
is all. Thank you.
    Mr. Mollohan. Okay. That is commendable.
    Mr. Schiff.
    Mr. Schiff. Thank you, Mr. Chairman.
    A couple of questions. But I, you know, want to put one 
last coat on the private funds, state funds, issue. And that is 
express the view of my constituents in California who put up 
half the funds for LSC. We are big supporters of LSC.
    You know, our constituents of California don't support the 
restrictions. They can't understand the restrictions on the use 
of federal funds. It is a national body. They can understand a 
national Congress deciding on how federal funds ought to be 
used. But they have a very difficult time understanding why the 
Congress is deciding how they should do state funds or how that 
is somehow to their advantage.
    And as you point out, and as they have pointed out to me 
repeatedly, it has a real effect on their fundraising, 
notwithstanding the separate entities that have been set up. 
They have a lot of donors who will not give to them because of 
the restrictions. So I do want to take the opportunity to let 
you know how my constituents feel about it.
    And I think the idea of looking for other sources of 
revenue that are more stable is a good one. I don't know 
whether the bar dues or a checkoff is. I have some experience 
with that as well and see the feast or famine quality of the 
checkoff.
    But the IOLTA funds I know are running very low because of 
interest rates, and that is not ideal either. I was curious 
about how the IOLTA fund provision was established. Is that a 
state by state thing, or is that a--it is a state by state 
thing. I see some nodding heads.
    I don't know if there is a mechanism like that, which has 
been a relatively consistent source of funding, just not in a 
consistent amount. If there is something--a mechanism like that 
that might have a more consistent revenue stream.

                CONFIRMATION OF A NEW BOARD OF DIRECTORS

    I would like to get your thoughts on that. And the only 
other question I had was on the board itself, through your 
testimony, written testimony, I gather there is still eight 
nominees that are sort of in the wings? And I am curious to how 
long they have been waiting for confirmation, and how you are 
handling that when you have sort of a current board and a 
shadow board. I know you have been doing orientations. But are 
they more involved in the decision making than just sort of 
being kept in the loop?
    Mr. Strickland. One of the nominees for the new board was 
seated in July to fill a vacancy, so Laurie Mikva of Chicago is 
already serving on the board. Leaving five Democrat nominees 
who have--my understanding is have cleared the committee. Three 
of the five Republican nominees are before the committee but 
are not out of the committee at this point. And that leaves two 
Republican nominees who have not yet been announced.
    But in response to your question about involvement, 
thinking back to my own time as a nominee, I don't mean this 
critically, but we didn't really have any orientation. We were 
nominees for a year. I don't know that we were controversial. I 
think there was some disagreement on some of the other 
nominees. So until we were all together as a group, no one was 
confirmed.
    By contrast, early on I made a direct contact with a member 
of the group of nominees who may well be the next board 
chairman to talk about a transition. And that led to the 
orientation program that you heard described a few moments ago 
in January. And we have immediately and continuously invited 
the nominees to attend our meetings. And they do have to do 
that as observers however.
    So far though we have had I think a very good working 
relationship with the group of nominees that have already been 
identified.

                             IOLTA FUNDING

    Mr. Schiff. Thank you. Any other thoughts? I don't know if 
there is a way to--within IOLTA to float as a percentage of--
well to float with interest rates in a way that keeps it a more 
consistent source of funds or whether there are other 
mechanisms like IOLTA that would be a better candidate.
    Mr. Fortuno. We do work with the local--with the 
State IOLTA commissions and the national body. So there is a 
flow of information back and forth. And certainly we would like 
to have a more consistent revenue streams, so that it is not as 
dependent on interest rates.
    But, unfortunately, it is the interest on lawyer's trust 
accounts. So long as we are talking interest rates, they are 
going to fluctuate.
    Mr. Schiff. I wonder though. I mean, this may not be 
workable at all. But you could have a situation where when 
interest rates go above a certain point, that a, for lack of a 
better term, rainy day fund is created.
    Mr. Fortuno. In fact, they do have reserves, 
which is why the--in 2008--in part in 2008 we didn't feel as 
big a pinch. I think that the reserves were tapped. And now 
what concerns us is that not only are the rates down, but the 
reserves have been depleted.
    But they do establish reserves so that when they need to 
tap into them, those rainy day funds are available.
    Mr. Schiff. Thank you, Mr. Chairman.
    Mr. Mollohan. Thank you, Mr. Schiff.
    Gentlemen, thank you very much for your testimony here 
today. I am going to submit a few questions for the record. 
There may be some questions other members might wish to submit 
for the record.
    I would like to get some cost effectiveness information in 
the record justifying Legal Services in economic terms. I think 
you probably can address that effectively.
    I want to thank you very much for your appearance here 
today, for the expertise, for the time that you have given the 
program.
    And, Mr. Strickland, if you are not going to be here next 
year, we very much appreciate your service.
    Mr. Strickland. This may very well be my final appearance 
before your Committee. Thank you very much, Mr. Chairman.
    Mr. Mollohan. Thank you.
    Hearing is adjourned.

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                           W I T N E S S E S

                              ----------                              
                                                                   Page
Fortuno, V. M..........................................   653
Glover, Phil.....................................................   529
Holder, Hon. E. H., Jr...........................................     1
Lappin, H. G.....................................................   361
Lowry, Bryan.....................................................   529
Melson, Kenneth..................................................   273
Mueller, Robert..................................................   185
Robinson, Laurie.................................................   567
Strickland, F. B.................................................   653


                               I N D E X

                              ----------                              

              Department of Justice FY2011 Budget Overview
  Witness: Eric H. Holder, Jr., Attorney General of the United States

2010 Census......................................................    35
Adam Walsh Act..................................................57, 117
Balancing Security and Justice in Terrorism Trials...............    39
Budget Request for Holding Civilian Terrorist Trials.............    17
Civilian Terrorism Trials........................................    26
Delays in the Implementation of the Prison Rape Elimination Act..23, 44
Disposition of Guantanamo Detainees..............................    13
DNA Analysis Backlog.............................................    27
Drug Court.......................................................    98
Drug, Mental Health and Problem-Solving Courts...................   126
Firearms Trafficking and Related Violence........................    38
Gangs...........................................................94, 111
Guantanamo as a Recruiting Tool..................................41, 45
Guantanamo Detainee Review Task Force............................   120
Guantanamo.......................................................   100
Hate Crimes against Immigrants...................................    53
Holding 9/11 Trials in New York City.............................    51
Human Rights Watch Report on Prison Rape.........................    59
Immigration Case Reviews.........................................    37
Intellectual Property Enforcement................................    88
Interrogation of Abdulmutallab...............................42, 54, 58
Interrogation Policy.............................................   102
John Adams Project...............................................    22
Legal Technicalities in Terrorism Trials.........................    59
Letters from Ranking Member Wolf to Attorne132, 136, 146, 147, 150, 152
Letters from Ranking Member Wolf to Attorney General Holder, 
  continued................................154, 158, 159, 163, 164, 165
Letters from Ranking Member Wolf to Attorney General Holder, 
  continued................................168, 172, 175, 176, 178, 180
Letters from Ranking Member Wolf to Attorney General Holder, 
  continued....................................................181, 183
Medical Marijuana................................................   121
Mexican Firearms Trafficking.....................................    46
Opening Statement of Chairman Mollohan...........................     1
Opening Statement of Mr. Wolf....................................     3
Past Provision of Miranda Warnings to Terrorist Suspects.........    46
Potential Trial of Osama Bin Laden...............................    43
Previous Terrorist Trials in Civilian Court......................    56
Prosecutions of Human Rights Violators...........................    43
Protection of National Security Information in Civilian Trials...    32
Questions for the Record, Chairman Alan Mollohan.................    64
Questions for the Record, Ranking Member Frank R. Wolf...........   100
Questions for the Record, Representative Adam Schiff.............    88
Questions for the Record, Representative C.A. ``Dutch'' 
  Ruppersberger..................................................    91
Questions for the Record, Representative Jerry Lewis.............   126
Questions for the Record, Representative Robert B. Aderholt......   128
Reinstituting the 9/11 Commission................................    20
Resources for Indian Country.....................................    36
Rights Afforded to Defendants in Civilian Trials.................    29
Rights of Detainees in Civilian Trials, Continued................    40
State Criminal Alien Assistance Program (SCAAP)..................   126
Statement of Eric H. Holder, Jr., Attorney General of the United 
  States.........................................................     6
TARP and Stimulus Fraud..........................................   119
Testimony of Attorney General Holder.............................     3
The High Value Detainee Interrogation Group......................    21
Trials of the 9/11 Perpetrators..................................    18
Use of Civilian Trials as a Tool in the War on Terrorism.........    49
Use of the Civilian Trial System To Reinforce the Rule of Law....    33
White Collar Crime...............................................    56

                    Federal Bureau of Investigation
                       Director Robert S. Mueller

Answer on Fix for the DNA Technical Review Problem...............   231
Article by Michael B. Mukasey....................................   213
Big Budget Numbers...............................................   219
Civilian Trials for Terrorism Suspects...........................   228
Comparison of Agent Coverage in Indian Country to Coverage in 
  Comparability-Sized Rural Areas................................   235
Comparison of Agent Coverage in Indian Country to Coverage in 
  Comparability-Sized Crime Rates................................   236
Development of the National Security Branch......................   219
DNA and Fingerprint Analysis.....................................   229
Firearms Trafficking.............................................   244
Follow-up on the Robert Hanssen Case.............................   244
Gang Enforcement.................................................   240
Hate Crimes Enforcement..........................................   225
High-Value Detainee Interrogation Group..........................   262
Homegrown Terrorists.............................................   221
Interrogation of Terrorism Suspects in the U.S...................   205
Jurisdictional Issues Between FBI and DHS........................   220
Lab-Wide Average Evidence Processing Turnaround Time.............   237
Law Enforcement in Indian Country................................   233
Legat Program/Overseas Presence..................................   271
License Plate on Car Driven by Consular Employee Murdered in 
  Juarez.........................................................   241
New Agents Visiting the Holocaust Museum.........................   223
Official Response on why the Indian Country Agents are Being 
  Funded Though BIA..............................................   237
Opening Statement of Chairman Mollohan...........................   185
Opening Statement of Mr. Wolf....................................   187
Oral Remarks of Director Mueller.................................   187
Overseas Contingency Operations..................................   268
Progress in Responding to IG Report on Hanssen Follow-up.........   245
Questions for the Record, Chairman Alan Mollohan.................   246
Questions for the Record, Ranking Member Frank R. Wolf...........   262
Questions for the Record, Representative Adam Schiff.............   259
Records Management...............................................   272
Recruitment in Diverse Communities...............................   226
Sentinel.......................................................238, 267
Statement of Robert S. Mueller, III..............................   190
Terrorism Interrogations, Continued..............................   227
Terrorist Radicalization.........................................   241
Threats from Gangs...............................................   222
Training.........................................................   269
Trends in the Level and Types of Crimes Committed in Indian 
  Country........................................................   234
Update on DNA Backlog............................................   232
Views on the Child Protection Improvement Act....................   231
Violent Crime/Gangs..............................................   264
White Collar Crime...............................................   224

          Bureau of Alcohol, Tobacco, Firearms, and Explosives
 Witness: Kenneth Melson, Deputy Director, Bureau of Alcohol, Tobacco, 
                        Firearms, and Explosives

Anti-Gang Coordination...........................................   299
ATF Activities in Iraq and Afghanistan...........................   300
ATF/FBI Explosives Enforcement Efforts...........................   301
ATF'S ETRACE System..............................................   301
Ballistics Information...........................................   344
Biography of Kenneth E. Melson...................................   283
Coordination with FBI on Explosives Investigations...............   343
Emergency Support Function #13...................................   302
Gangs--Violent Crime Impact Teams (VCIT).........................   336
Gun Dealer Compliance............................................   287
International Nexus to Gangs.....................................   291
Introductory Remarks by Mr. Culberson............................   274
Opening Remarks of Deputy Director Melson........................   274
Opening Statement of Chairman Mollohan...........................   273
Project Gunrunner..............................................284, 328
Questions for the Record, Chairman Alan Mollohan.................   308
Questions for the Record, Representative Adam Schiff.............   316
Questions for the Record, Representative Frank R. Wolf...........   328
Questions for the Record, Representative Mike Honda..............   324
Questions for the Record, Representative Robert B. Aderholt......   348
Recovery Act Expenditures per Project Gunrunner..................   304
Regulatory Backlog...............................................   297
Spanish ETRACE...................................................   295
Statement of Kenneth E. Melson...................................   277
Violent Crime Impact Teams.......................................   290

                Bureau of Prisons FY2011 Budget Overview
         Witness: Harley G. Lappin, Director, Bureau of Prisons

Anti-Craving Medication..........................................   431
Budget Gaps......................................................   420
Classification/Segregating Groups of Inmates.....................   412
Counterterrorism...............................................396, 510
Crowding/Inmate-to-Staff Ratios...........................385, 508, 515
Federal Prison Industries (FPI)..................................   407
Federal Prison Industries (FPI)..................................   415
Federal Prison Industries (FPI)................................424, 517
Federal Prison Industries........................................   395
Future Prison Changes..........................................410, 516
FY 2011 Budget...................................................   387
Gangs..........................................................397, 511
GAO Review of BOP's Budgeting....................................   386
Guantanamo Bay...................................................   427
Incarcerated Women...............................................   414
Inmate Assaults on Staff.........................................   425
Inmate Assaults on Staff.........................................   430
Inmate Per Capita................................................   409
Inmate Population Increases......................................   383
Life Sentences...................................................   409
Modernization and Repair (M&R)...................................   421
Modernization and Repair.........................................   521
Need for New Prison Beds.........................................   423
Non-Returnable Criminal Aliens...................................   398
Non-U.S. Citizens................................................   409
Opening Remarks..................................................   361
Opening Statement................................................   362
Prison Industries Enhancement....................................   425
Prison Population Increases......................................   414
Prison Radicalization............................................   397
Prison Rape Elimination Act (PREA)...............................   399
Questions for the Record, Chairman Alan Mollohan.................   433
Questions for the Record, Ranking Member Frank R. Wolf...........   510
Questions for the Record, Representative C.A. ``Dutch'' 
  Rupperseberger.................................................   508
Questions for the Record, Representative Robert B. Aderholt......   523
Re-entry Programs..............................................408, 519
Sexual Abuse of Inmates..........................................   426
Special Management Units (SMUS)..................................   429
Staffing.........................................................   388
State and Local Prison Populations...............................   394
Statement of Harley G. Lappin, Director of Federal Bureau of 
  Prisons........................................................   365
Thomson Facility...............................................426, 512
U.S. Budget and State and Local..................................   394
Veterans.........................................................   413

 American Federation of Government Employees--Council of Prison Locals
Witnesses: Bryan Lowry, President, Council of Prison Locals, AFGE, AFL-
 CIO; Phil Glover, National Legislative Coordinator Council of Prison 
                         Locals, AFGE, AFL-CIO

Biography of Bryan Lowry, President of AFL-CIO...................   549
Biography of Philip W. Glover, Legislative Director of AFL-CIO...   550
Drug Treatment...................................................   564
Emails of Inmates................................................   565
Gangs............................................................   557
Monitoring of Inmates Communications.............................   565
Opening Statement of Chairman Mollohan...........................   529
Opening Statement of the Witnesses...............................   529
Overcrowding.....................................................   562
Radicalization of Inmates........................................   558
Rape in Prisons..................................................   558
Reentry and Restitution..........................................   557
Staffing Levels..................................................   552
Statements of Bryan Lowry, President and Phil Glover, Legislative 
  Coordinator of AFL-CIO.........................................   531
Violence in Prisons..............................................   559
Work Opportunities for Inmates...................................   556

            Office of Justice Programs (OJP) FY 2011 Budget
       Witness: Hon. Laurie Robinson, Assistant Attorney General

Comprehensive Planning...........................................   597
Diagnostic Center................................................   588
DNA Rape Kit Backlog in Los Angeles..............................   596
Drug, Mental Health and Problem-Solving Courts...................   602
Evidence-Based Approaches........................................   586
Evidence-Based Solutions.........................................   590
FY 2011 Budget Request...........................................   568
FY 2011 Budget Request...........................................   569
Gangs and Youth Violence Prevention..............................   647
Hope Program.....................................................   597
Human Trafficking..............................................593, 645
ICACS............................................................   609
Intellectual Property Enforcement................................   605
Justice Reinvestment Program.....................................   603
Prescription and Drug Monitoring.................................   603
Prison Rape Elimination/Prosecution Program....................591, 642
Program Cuts and Eliminations....................................   591
Questions for the Record, Chairman Alan Mollohan.................   612
Questions for the Record, Ranking Member Frank R. Wolf...........   641
Questions for the Record, Representative Jo Bonner...............   651
Reauthorization of Cops and OJJDP................................   605
Recidivism and Prisoner Reentry..................................   599
Regional Information Sharing Systems (RISS) Program..............   641
Second Chance Act................................................   649
Sex Offender Registration Notification Act.......................   608
State Criminal Alien Assistance Program (SCAAP)..................   650
Statement of Hon. Laurie Robinson, Assistant Attorney General....   570
The Purpose of Justice Grants....................................   586
Tribal Grants....................................................   606
What Works Clearinghouse.........................................   589
Work Programs in Prisons.........................................   600

                       Legal Services Corporation
   Witnesses: Victor M. Fortuno, LSC Interim President and 
 General Counsel; Frank B. Strickland, Chairman, LSC Board of Directors

Activities of Affiliate Organization.............................   692
Basic Field Grants...............................................   711
Confirmation of a New Board of Directors.........................   702
Foreclosure Crisis/Unemployment..................................   713
Governance and Management........................................   693
IOLTA Funding..................................................702, 711
Management and Administration of Programs........................   686
Opening Remarks..................................................   653
Private Attorney Involvement.....................................   674
Questions for the Record, Chairman Alan Mollohan.................   704
Questions for the Record, Ranking Member Frank R. Wolf...........   711
Statement of LSC Board Chairman Frank Strickland.................   654
Statement of LSC Interim President Victor Fortuno......   662
Technology Initiative Grants Program.............................   712
Trends in Federal and Non-Federal Support........................   687
Updating the Justice Gap Report..................................   672
Working with Bar Associations....................................   699

                                  
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