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


 
       CIVIL DIVISION OF THE UNITED STATES DEPARTMENT OF JUSTICE

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

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                   COMMERCIAL AND ADMINISTRATIVE LAW

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 24, 2010

                               __________

                           Serial No. 111-132

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov



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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee               STEVE KING, Iowa
HENRY C. ``HANK'' JOHNSON, Jr.,      TRENT FRANKS, Arizona
  Georgia                            LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico         JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois               TED POE, Texas
JUDY CHU, California                 JASON CHAFFETZ, Utah
TED DEUTCH, Florida                  TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois          GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DANIEL MAFFEI, New York
JARED POLIS, Colorado

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

           Subcommittee on Commercial and Administrative Law

                    STEVE COHEN, Tennessee, Chairman

WILLIAM D. DELAHUNT, Massachusetts   TRENT FRANKS, Arizona
MELVIN L. WATT, North Carolina       JIM JORDAN, Ohio
DANIEL MAFFEI, New York              HOWARD COBLE, North Carolina
ZOE LOFGREN, California              DARRELL E. ISSA, California
HENRY C. ``HANK'' JOHNSON, Jr.,      J. RANDY FORBES, Virginia
  Georgia                            STEVE KING, Iowa
ROBERT C. ``BOBBY'' SCOTT, Virginia
JOHN CONYERS, Jr., Michigan
JUDY CHU, California

                     Michone Johnson, Chief Counsel

                    Daniel Flores, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             JUNE 24, 2010

                                                                   Page

                           OPENING STATEMENTS

The Honorable Steve Cohen, a Representative in Congress from the 
  State of Tennessee, and Chairman, Subcommittee on Commercial 
  and Administrative Law.........................................     1
The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Ranking Member, Subcommittee on 
  Commercial and Administrative Law..............................     3
The Honorable Steve King, a Representative in Congress from the 
  State of Iowa, and Member, Subcommittee on Commercial and 
  Administrative Law.............................................     4

                               WITNESSES

The Honorable Tony West, Assistant Attorney General, Civil 
  Division, Department of Justice
  Oral Testimony.................................................     5
  Prepared Statement.............................................     8

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Steve King, a Representative 
  in Congress from the State of Iowa, and Member, Subcommittee on 
  Commercial and Administrative Law..............................    32

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, 
  Jr., a Representative in Congress from the State of Georgia, 
  and Member, Subcommittee on Commercial and Administrative Law..    35
Post-Hearing Questions submitted to the Honorable Tony West, 
  Assistant Attorney General, Civil Division, Department of 
  Justice........................................................    36


       CIVIL DIVISION OF THE UNITED STATES DEPARTMENT OF JUSTICE

                              ----------                              


                        THURSDAY, JUNE 24, 2010

              House of Representatives,    
                     Subcommittee on Commercial    
                            and Administrative Law,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 11:10 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Steve 
Cohen (Chairman of the Subcommittee) presiding.
    Present: Representatives Cohen, Chu, Franks and King.
    Staff Present: (Majority) James J. Park, Counsel; Carol 
Chodroff, Counsel; Adam Russell, Professional Staff Member; and 
Zachary Somers, Minority Counsel.
    Mr. Cohen. This hearing of the Committee on the Judiciary, 
Subcommittee on Commercial and Administrative Law will now come 
to order.
    Without objection, the Chair will be authorized to declare 
a recess of the hearing.
    I will now recognize myself for a brief statement. One of 
this Subcommittee's duties and obligations is to oversee the 
activities of the various components of the Department of 
Justice over which the Subcommittee has jurisdiction. These are 
also the duties of every Committee to have oversight over the 
Administration, just as important for an Administration that 
has the majority as it is when the Administration is of the 
other party.
    But the Civil Division is why we are here today. The last 
time this Subcommittee held an oversight hearing on the Civil 
Division was in 2003, a long time ago, when we invited the 
Civil Division and four other DOJ components to testify at the 
same hearing. Given the long time that has elapsed since the 
last hearing and given that new Administration has taken over 
since then, we concluded the time was right to conduct due 
diligence and have the oversight hearing that should have been 
held during the last 6 years.
    I thank Assistant Attorney General Tony West of California 
and points west, the head of the Civil Division, for appearing 
before us today and to report on the division's recent 
activities. The DOJ Civil Division is responsible for 
litigating a broad range of matters on behalf of the 
government; defending the constitutionality of Federal 
legislation; recovering money for the U.S. that was lost 
through fraud; enforcing Federal consumer protection laws; 
defending immigration and enforcement actions; and representing 
the United States in habeas cases. Approximately 88 percent of 
the Civil Division's work is defensive in nature.
    While there are many topics we could cover, there are two 
areas of interest to me particularly that we will look at. 
First, learn more about the Civil Division's role with respect 
to the ongoing investigation of the explosion and sinking of 
the Deepwater Horizon oil rig in the Gulf of Mexico, as well as 
the spill that we are experiencing, experienced, and will 
experience. The government's latest estimate is 60,000 barrels 
of oil, 2.5 million gallons each day. So the estimate seems to 
go up every few weeks, and we don't know how much oil is out 
there.
    I know the Civil Division has been working with other 
Department of Justice components and has been since the initial 
explosion to investigate the facts and coordinate the 
government's legal response with all the Federal agencies 
involved. I appreciate that the Attorney General has made clear 
that taxpayers not pay a dime for any cleanup costs associated 
with this spill. And that is important, that BP pays. And, of 
course, we have had some progress with the President. I would 
like to know what the Civil Division's role will be in assuring 
that all responsible parties are held accountable.
    I also want to applaud Judiciary Chairman John Conyers's 
leadership on this issue and for introducing H.R. 5503, the 
``Securing Protections of the Injured from Limitations on 
Liability Act,'' or ``SPILL Act,'' which we had yesterday in 
markup. That bill is needed to patch up a lot of the holes that 
were exposed by the Deepwater Horizon explosion. And I would 
hope that we could pass this unanimously and get it through on 
a bipartisan basis.
    I would also hope that Memphis wins the NCAA football next 
year, but that is not going to happen either.
    Additionally, I believe the Administration should consider 
placing BP under receivership. Not a light suggestion, but one 
that I think we should consider. First Robert Reich mentioned 
it. He thought it important because it would put the Federal 
Government in a control position, taking over the spill and 
making the decision, so there is not a conflict of interest on 
whether you get the oil or whether you stop the spill. And I 
would like to know what your thoughts are on how that could 
happen.
    My thoughts on receivership are more because I don't trust 
them, and I think we need every dollar they have got to pay all 
the claims that they will eventually be responsible for. And 
has the Justice Department looked at receivership and the 
burden that would be needed to be met to go into that area?
    The second area of interest for me is the Civil Division's 
role with respect to ensuring transparency and government 
openness. Throughout my career, I have advocated sunshine. To 
that end, I have been a strong supporter for bringing into the 
public as much as can be revealed about government decision 
making. One of the things I found most disconcerting about the 
previous Administration was its penchant for aggressively 
imposing government secrecy under the guise of national 
security. This tendency manifests itself in several ways, 
including in the broad invocation of the State Secrets 
Privilege and the vigorous defense of agency decisions to deny 
requests for information under the Freedom of Information Act.
    I recognize that under this present Administration, the 
department has instituted new policies in both of these areas. 
I would like to know how these policies are being implemented 
and practiced.
    Given the broad range of issues the Civil Division handles, 
I know there will be other areas of inquiry from other Members.
    The issue about fraud, which you look into, which I 
appreciate--and I don't know there are any moneys that you deal 
with in some of these New York situations with Madoff and some 
of those folks, if we get involved is there money from the 
United States Government trust to collect that we may be owed 
in those hearings of those matters.
    Anyway, I appreciate the willingness of Assistant Attorney 
General West to appear before the Subcommittee. I look forward 
to his testimony.
    And I now recognize my colleague, Mr. Franks, the 
distinguished Ranking Member of the Subcommittee, for his 
opening remarks.
    Mr. Franks. That is a good opening, isn't it?
    Well, thank you, Mr. Chairman.
    And thank you, Attorney General West, for appearing before 
us today. I want to just express my gratitude to the Chairman 
for holding this hearing. I think the oversight of the 
Department of Justice and its components is one of the 
Judiciary Committee's most important obligations.
    The Civil Division plays a very important role in many of 
the department's missions, from the global war on terror to 
combating fraud against Federal health care programs. I mean, a 
whole range of things. And I commend the division staff for 
their hard work across the wide spectrum of the division's 
responsibilities.
    However, as you might imagine, I am concerned that the 
division has become distracted from its important mission by 
engaging in politicized litigation over the areas on the 
immigration law. Now, I am from Arizona, so that probably 
doesn't shock you terribly.
    But, Mr. West, not only has the department announced that 
it plans to challenge the Arizona law, but I understand that 
you travelled to Arizona to meet with State officials about the 
law. And I guess I can't help but question why, with the wide 
range of important items the Civil Division has on its plate, 
that time is being spent preparing challenges to the law?
    The people of my State are really just trying to do what 
the Federal Government has failed to do, which is to enforce 
America's immigration laws and secure the border. The 
department's proposed lawsuit against Arizona, I think, is 
irresponsible and insults the views of the majority of the 
American people who support the law on its face.
    And I know the law has engendered a great deal of 
criticism, but analysis demonstrates that the criticism really 
is unfounded if you look at the arguments that are made.
    Critics claim that the law promotes racial profiling. And 
yet, if you read it, the law expressly prohibits racial 
profiling four separate times in the text.
    Critics claim that the law requires citizens to carry 
identification that they otherwise wouldn't be required to 
carry. But Federal law has actually required noncitizens, 
including visitors and lawful permanent residents, to keep 
their registration documents on their person. This has been the 
law in America for 50 years.
    Additionally, critics claim that the law requires police 
officers to stop people on the streets to question them about 
their immigration status, but the provision of the law about 
the questioning one about immigration status can only take 
place, can only take effect, if police officers have made a, 
quote, lawful stop, detention or arrest in the enforcement of 
any other law or ordinance. So, in other words, the individuals 
may not be stopped simply on the basis of suspicion and ask for 
papers.
    I will just simply tell you that Arizona is trying to take 
a reasonable constitutional approach to dealing with a problem 
that has really been ignored by the Federal Government, of 
which I take my share of the responsibility.
    So, Mr. West, I hope that the department that you work with 
can reconsider its decision to file the suit and look at some 
of the things that we have mentioned today. I am sure the Civil 
Division's time and resources could be better spent cracking 
down on fraud against the Federal Government, defending 
lawsuits and going after those who have taken part in mortgage 
fraud schemes that have caused so many Americans to lose their 
homes.
    My State needs the law to protect our residents, secure our 
borders, and preserve jobs for our unemployed citizens and 
legal immigrant workers. The department should not compound its 
lack of immigration enforcement by attempting to strike down 
the Arizona law. And, again, I say that being a Member of 
Congress from Arizona, and I know that there are varying 
perspectives on this. But nevertheless, everything I have said 
about the law is accurate. And I appreciate you being here 
today, and I appreciate the Chairman for bringing this hearing 
to the forefront. Thank you.
    Mr. Cohen. Thank you, Mr. Franks.
    I appreciate your statement.
    And I now would like to start with our first panel of 
witnesses.
    Mr. King, would you like to make an opening remark?
    Mr. King. Thank you, Mr. Chairman.
    First, I want to address that I am going to turn my 
attention to this department and some of the things that are 
going on within Justice. And I have had a number of public 
statements over the last couple of weeks that focus on the lack 
of objectivity on the part of the Department of Justice.
    And I think that when we talk about law, Lady Justice needs 
to remain blind. And I like to think we have to reblindfold 
Lady Justice. So I want to focus on that. There have been a 
number of decisions that have been made within the Department 
of Justice that I think were anything but that.
    And if we are going to have a country that grows together, 
heals together, and one that can be unified, one that 
understands that we have something that is an overarching 
concern, which I will call it cultural continuity, the idea 
that we are Americans joined together for a common cause, with 
a common history and a common belief system. And that is what 
unifies us and strengthens us and allows us then to incorporate 
the differences between us and use those differences as a 
strength.
    If we allow for the division of us or even the suspicion of 
a built-in bias of any kind, then that divides us and weakens 
us as a people. So my under-riding theme here is a belief in 
the Constitution--that should be our default system--and a 
belief in a rule of law that applies to all of us, regardless 
of who we might be. And I think that when we start putting 
labels on people and then providing a level of justice, whether 
it is in the Criminal or Civil Division, then it is something 
that undermines our country and diminishes our ability to ward 
off our enemies and certainly diminishes our ability to take 
this country to the next level of its destiny in a positive 
way.
    And so that is as positively as I can express the things 
that are in my mind right now. And I look forward to the 
testimony from the witnesses today.
    Mr. Chairman, I yield back the balance of my time.
    Mr. Cohen. Thank you, Mr. King.
    Ms. Chu passes.
    Thank you.
    And we will now start with our testimony. We have a system 
of lights or a light in this circumstance. Green means you are 
started; you have got 4 minutes until it turns yellow. And 
yellow is the last minute, in a total of 5. Red means over, 
hopefully. And if you are finished, you will be one of the few. 
But we have the lighting system.
    After your testimony, each person will get an opportunity 
to question you for 5 minutes and maybe a second round and have 
other questions.
    So our first witness is Assistant Attorney General Tony 
West. Mr. West was nominated by President Obama to be the 
Assistant Attorney General For the Justice Department's Civil 
Division on January 22, 2009; confirmed by the Senate April 20. 
From 1993 to 1994, he served as special assistant in the 
Department under the direction of U.S. Deputy Attorneys General 
Philip Heymann and Jamie Gorelick, as well as Attorney General 
Janet Reno. From 1994 to 1999, he served as Assistant U.S. 
Attorney for the Northern District of California, later served 
as Special Assistant Attorney General, appointee of California 
Attorney General Bill Lockyer. Prior to his return to Justice, 
he was a litigation partner in San Francisco at Morrison and 
Foerster. His trial practice there included representing 
individuals and companies in civil and criminal matters.
    Thank you, Mr. West. And you can begin your testimony.

   TESTIMONY OF THE HONORABLE TONY WEST, ASSISTANT ATTORNEY 
         GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE

    Mr. West. Thank you, Mr. Chairman and Ranking Member 
Franks, and Members of the Subcommittee. It is a great 
privilege for me to be here to appear before you at this 
hearing to discuss the work of the Justice Department's Civil 
Division and respond to any questions you may have.
    As you know, the Justice Department's Civil Division 
represents the United States in a variety of matters, virtually 
every executive branch agency, as well as the President, 
Cabinet officials, and Members of Congress, are clients of ours 
at one time or another. With nearly 1,000 attorneys and over 
400 support staff, the Civil Division is the Justice 
Department's largest litigating component, and the cases we 
handle touch upon virtually every aspect of this 
Administration's policy priorities and the Federal Government's 
operations.
    And as part of our mission, the Civil Division defends the 
constitutionality of congressional statutes when they are 
challenged, as well as the lawfulness of government 
regulations. We seek to recover moneys lost to government 
through fraud, waste and abuse. We help to administrator 
sensitive national compensation programs, such as the Radiation 
Exposure Compensation Act. We enforce important consumer 
protection statutes, and we represent the government in a wide 
range of cases, from contract disputes to tort cases, from loan 
defaults to immigration.
    Since assuming this position in April 2009, I have focused 
on three main priorities for the Civil Division: Protecting the 
American people, protecting taxpayer dollars, and protecting 
the Nation's consumers.
    Protecting the American people remains the department's 
highest priority. Part and parcel to that, the Civil Division 
is currently defending around 140 habeas corpus petitions 
brought by detainees held at the detention facility at 
Guantanamo Bay, Cuba. In these cases, we vigorously defend our 
national security consistent with the rule of law.
    Moreover, our attorneys have performed excellent work in 
the area of terrorist financing, defending the government's 
actions in court when they are challenged to help shut down the 
flow of money to international terrorist organizations. We are 
particularly proud of that work.
    In terms of protecting taxpayer dollars, we have enjoyed 
significant success. Since January 2009, the government has 
recovered approximately $4 billion in civil fraud cases. And 
when that is coupled with the criminal recoveries from the 
Civil Division's Office of Consumer Litigation Criminal Cases, 
the Civil Division has standing side by side with U.S. 
attorneys around the country obtained over $5.7 billion in 
civil and criminal fraud settlements, judgments, penalties, 
restitution and forfeitures.
    Health care fraud, of course, comprises the largest 
category of our fraud recovery. Since January 2009, the Civil 
Division has recovered over $3 billion in all health care fraud 
matters, with the largest of those matters being pharmaceutical 
and medical device industry cases.
    But our efforts to tackle fraud don't end with health care. 
They extend to other areas as well. We have actively pursued 
economic fraud. We seek to recover ill-gotten gains for the 
benefit of fraud victims. Our increased enforcement efforts in 
this area and particularly in the area of housing and mortgage 
fraud have increased recoveries in this area from $15 million 
in 2008 to $52 million in 2009 and the first half of 2010. In 
fact, last week we announced Operation Stolen Dreams, a 
mortgage fraud sweep which involved over 190 civil enforcement 
actions, including recoveries of more than $147 million in 
mortgage fraud.
    We have also been very vigilant in our efforts to root out 
fraud in connection with the procurement of goods and services 
used by our military and civilian agencies, including fraud 
affecting our men and women fighting in Iraq and Afghanistan. 
Since January 2009, procurement fraud cases have accounted for 
approximately $645 million in recoveries, more than the 
department's procurement fraud efforts in 2007 and 2008 
combined.
    Finally, the Civil Division continues to be at the 
forefront of our efforts to protect consumers through vigorous 
civil and criminal enforcement of our Federal consumer 
protection laws.
    Mr. Chairman, my written testimony describes in more detail 
other areas where the Civil Division is actively engaged and 
where we feel we may actually need additional resources. The 
department's work in supporting the Federal Government's 
response to the Deepwater Horizon oil spill is one example. I 
would be happy to address those other areas should you have 
questions. And again, I thank you for the opportunity of 
appearing before you today.
    [The prepared statement of Mr. West follows:]

             Prepared Statement of the Honorable Tony West































                               __________

    Mr. Cohen. Thank you, General West. I appreciate it. And 
you were perfect, even though I think our lighting system 
failed.
    Tell me about the Deepwater Horizon. What are we doing? 
What are we going to do?
    Mr. West. Well, Mr. Chairman, soon after the explosion on 
the Deepwater Horizon, the Attorney General sent Ignacia 
Moreno, who is the Assistant Attorney General For Environment 
and Natural Resources, and myself down to the Gulf, where we 
engaged primarily in advising the Federal agencies responsible 
for being first responders on the scene and any legal advice 
that they may need, but also to enforce the law, because it was 
important early on to make it clear that we would hold the 
responsible party, BP, accountable for every dime of removal 
costs, cleanup costs associated with the spill.
    Since that time, both Ms. Moreno and myself have returned 
to the Gulf. We have been there with the Attorney General. The 
Attorney General has acknowledged the existence of civil and 
criminal investigations into the causes of this explosion and 
our intent to hold individuals accountable for not only the 
financial damage but the natural resources damages as well.
    The Civil Division has been engaged in ongoing discussions 
with BP and with Transocean, making it clear to them what their 
responsibilities are as responsible parties. And that extends 
to efforts that were led by Associate Attorney General Tom 
Perrelli from the Department of Justice to help negotiate the 
existence, the creation of this $20 billion escrow fund, an 
independent claims process.
    Mr. Cohen. Will you be participating in any way in the 
escrow fund in meting out or ferreting out the claims?
    Mr. West. It is important that the claims process be truly 
independent. Certainly the Department of Justice anticipates it 
will be consulted as protocols and other details are being 
worked out with the creation of the independent claims process, 
but it is very important that it have integrity, that the 
American people see it as an independent process, and that is 
what we are committed to.
    Mr. Cohen. Let me ask you about FOIA claims. The Civil 
Division has resolved FOIA cases so as to promote President 
Obama's agenda of transparency and openness.
    But the Civil Division has litigated multiple FOIA cases 
that originated under the Bush administration policy. How do 
you reconcile that decision? Is there really a change in 
policy?
    Mr. West. Well, last year, in fact, the Attorney General 
did issue a new FOIA guidelines policy. It is one which puts 
forward the Administration's presumption that we will be an 
open and transparent government. In fact, the presumption is 
that in response to FOIA cases, we will be transparent, we will 
seek to disclose whenever we can, sometimes with regard to the 
Department of Justice, of course, that is a little tricky 
because we often have confidential criminal investigations 
going on. But not withstanding that, the intent is to, wherever 
we can, err on the side of disclosure. And that policy has not 
only been communicated throughout the Department of Justice, 
throughout the Civil Division, but we are communicating that to 
our client agencies as well.
    Mr. Cohen. But don't some of these Bush administration FOIA 
cases that you all are pursuing because of a continuum theory, 
I guess, that they might conflict with Obama's position, the 
President's position, don't we have discretion, and we don't 
really have to pursue those? Why are we pursuing them, and why 
are we maintaining certain policies of the previous 
Administration that are counter to hope and the future?
    Mr. West. Without commenting on any particular piece of 
litigation, which I wouldn't be able to do, I can say, as a 
general matter, there are cases, of course, which any 
Administration inherits, and they obviously pursue them in 
accordance with the law and with the facts of those cases.
    So I can assure you, with regard to how we view FOIA cases 
and how we evaluate our disclosure obligations in those cases, 
they are consistent with the President's preference for an 
open, transparent government. They are consistent with the 
Attorney General's----
    Mr. Cohen. Let me ask you this. In March, the National 
Security Archive at GW audited the Administration's performance 
with respect to FOIA requests and found that only 4 of 90 
Federal agencies studied showed both increases in information 
released and decreases in denials under FOIA since the 
implementation of the Attorney General's 2009 memorandum.
    What steps will the Civil Division take to increase the 
number of agencies that show both increases in releases and 
decreases in denials? The statistics seem to say it is the same 
game. Sometimes it does happen that the Administration does 
come in and the Administration that used to be against National 
Security Letters because they were part of the legislative 
oversight, and then once they become part of the 
Administration, they fall prey to the same type of beliefs that 
sometimes the executive would have,''This is mine, so I'm going 
to do it.''
    Well, it seems like there should be--sometimes there is a 
conflict, and why have the departments--the statistics say we 
are not doing any better under FOIA than what happened with the 
Bush administration.
    Mr. West. With respect, Mr. Chairman, I think the jury is 
still out on exactly how, at the end of the day, how our FOIA 
performance will be evaluated. As I know, you appreciate the 
fact that the policy was issued in the spring of last year; it 
still takes time, of course, to make sure that that change in 
policy, that change in attitude is something that is 
communicated throughout the Federal Government and that it is 
communicated throughout all levels of the government. That does 
take some time, but I can assure you that when it comes to 
evaluating these cases and when it comes to making the 
decisions about disclosure, not only are we obviously taking 
into consideration the existing law and the facts of the case, 
but what is governing and guiding our work in that is the new 
policy as articulated by the Attorney General.
    Mr. Cohen. Thank you, Mr. West. I have a red light.
    Mr. Franks has a green light.
    Mr. Franks. Thank you, Mr. Chairman.
    Again, Mr. West, I appreciate you being here.
    In fiscal year 2009, the Federal Government's Health Care 
Fraud and Abuse Control Program returned about $2.5 billion to 
the Medicare trust fund. Considering that taxpayers are 
estimated to be losing anywhere between $24 billion and $80 
billion per year in the Medicare and Medicaid programs and I 
think that it is my personal opinion that under the government 
takeover that is coming, that that is going to increase 
precipitously; and it seems to me that the Justice Department 
needs to be doing more to combat health care fraud.
    What additional tools and resources does the Civil Division 
need to combat health care and fraud like that perpetrated 
against health care programs more effectively? What do you 
need?
    Mr. West. Thank you, Ranking Member Franks.
    I think we have a pretty impressive record of impact and 
success when you look at how we tackled health care fraud since 
January 2009.
    One of the most important things that we did in May of last 
year at the direction of the President was to form something 
called the Health Care Fraud Prevention and Enforcement Task 
Force, HEAT, which brings together the Department of Justice's 
resources with those of the Health and Human Services 
Department and Secretary Sebelius's resources in a coordinated 
way that is really unprecedented. It is sharing data, sharing 
information, sharing resources, and creating efficiencies which 
allow us to be much more effective in combatting health care 
fraud.
    And there have been two things that have come out of that. 
One are the strike forces, which are being directed by the 
Criminal Division, which have had enormous success. And then 
the increase, as I talked about in my oral statement and is in 
the written testimony, the increase that we have seen in the 
civil recoveries of health care fraud. So I think that we are 
making the most of the resources that we have, and the 
President's budget reflects those additional resources that we 
think we need.
    Mr. Franks. Well, Mr. West, this country has also been 
going through a subprime mortgage crisis that has had a great 
impact and great cost to investors and banks and has forced 
many Americans, of course, to lose their homes. And certainly, 
much of this crisis was brought about by poor underwriting 
standards and people borrowing more than they could afford. I 
think we all know that.
    But mortgage fraud has also played a significant role in 
the subprime mortgage crisis. What is the Civil Division doing 
to go after these individuals or groups that have taken part in 
mortgage fraud schemes to help prevent mortgage fraud in the 
future?
    Mr. West. Mortgage fraud is one of the most difficult 
challenges that the Nation faces, as you correctly point out, 
and it is one of the highest priorities that we have in the 
Civil Division.
    The President last November created something called the 
Financial Fraud Enforcement Task Force, which brings together a 
wide array of Federal agencies as well as State and local 
government law enforcement agencies which are focused on 
financial fraud. And one of the key components of that task 
force is the Mortgage Fraud Working Group, which I am a co-
chair of. And just this past year, we began a series of 
listening tours, really, a summit, mortgage fraud summits. The 
last one we held in fact was in Phoenix, and where we went were 
those areas where the data showed us that the mortgage fraud 
challenge was the most acute and where we believe we could find 
some of the best practices where communities and law 
enforcement and industry were working together to try to tackle 
this problem.
    One of the things that came out of that was Operation 
Stolen Dreams, which was the massive mortgage fraud sweep that 
we just announced last week, where we have a record number of 
civil enforcement actions, over 190; a record number of 
recoveries, $147 million, when it comes to mortgage fraud. And 
so we are actively engaged, working with our State and local 
partners and U.S. Attorney's Offices around the country on this 
issue.
    Mr. Franks. Well, thank you, Mr. West. I wish you the very 
best.
    And, Mr. Chairman, I am going to go ahead and yield back at 
this point.
    Mr. Cohen. Thank you, Mr. Franks.
    I now yield to Mr. King of Iowa.
    Mr. King. Thank you, Mr. Chairman.
    Mr. West, thanks for your testimony. First, I have a 
softball question for you to kind of break the ice here. And 
that would be the Office of Immigration Litigation, the acronym 
for that is, what?
    Mr. West. OIL.
    Mr. King. Have you considered changing that particular 
name?
    Mr. West. Well, there are some things that are easy to do 
in government, and some things are not. I don't think changing 
the name of OIL is one of those things.
    Mr. King. I am glad you are comfortable with that. I won't 
belabor that point. It just caught my attention.
    Let me see. I would like to start down here with the 
activity that you had with regard to the impending litigation 
on the health care act. And I would just pose this question to 
you, what, if you prevail and as I understand your argument, 
rather than go into it very deeply, if you prevail, it will be 
on your argument that the Commerce Clause grants constitutional 
authority for the Federal Government to pass legislation which 
we know now as Obama care. Would I be correct on that?
    Mr. West. Well, if I could answer you this way. We 
certainly believe the law is constitutional. We believe that we 
will prevail in court. But I think it would be appropriate, 
given that it is pending litigation, that I allow our pleadings 
to speak for me on that point.
    Mr. King. In other words, you would rather not comment 
until it is litigated?
    Mr. West. Well, certainly, in fact, we will have the first 
opportunity--we have filed.
    Mr. King. I am helping you shape your argument, though, Mr. 
West.
    Mr. West. We have filed certainly in Virginia and other 
States, in Florida, where you can see the arguments as clearly 
laid out as to sort of why we believe the Affordable Care Act 
is constitutional. But----
    Mr. King. My question to you, then, is if the commerce 
clause is a component of that argument, and by your testimony 
it is, then what would be the left of the Commerce Clause 
should you prevail on that point?
    Mr. West. Again, I think I am going to allow the litigation 
to speak for me. In fact, next week will be the first oral 
argument in this--in one of the various cases.
    Mr. King. And I would submit that if you prevail on the 
point that is the Commerce Clause, then there would be nothing 
left of the Commerce Clause, in my judgment, because there 
could be--there always has been--babies born within the States 
that don't have access or utilize any kind of health care, that 
live and die. So they would still be compelled to buy health 
insurance under this legislation. So I was just going to take 
this argument for you to consider because you have to be nimble 
when you face these people that are smart attorneys.
    And somebody has already gone back to Wicker v. Filburn and 
said that, even though he raised the wheat and ate his own 
wheat and didn't sell it to anybody, it affected the overall 
supply because he would have bought the wheat from somebody 
else. That is the Commerce Clause, right? Now, I think it is a 
completely weak argument, and it has been weakened otherwise.
    Now, Obama care does this. If you look at Wicker v. 
Filburn, and it takes it to another level. It takes it to this 
level that says, government either raises the wheat or the 
health care in this case, or approves those who do and approves 
the product and requires everyone to buy wheat and eat wheat. 
That is your Commerce Clause argument. So I put that into the 
record, so you are nimble enough to deal with that at the time 
when it comes, Mr. West.
    I would really rather spend our time, though, talking about 
the Arizona immigration law. And I am going to toss you out the 
Judge Poe softball that surely you have prepared yourself to 
respond to when you are asked, have you read the bill?
    Mr. West. Oh, yes. I have read the bill several times.
    Mr. King. As have I. And I appreciate that, because now we 
have a basis of understanding here.
    And the news reports have reported that you have issued a 
draft, that you have an internal document that would be a draft 
civil complaint in preparation to bring suit against Arizona on 
S.B. 10 70. Is that correct?
    Mr. West. Congressman, I am not in a position to make any 
announcements today about that. We are working through various 
issues in connection with that issue. I do anticipate that the 
department will make some type of announcement fairly soon.
    Mr. King. Mr. West, I am reading from a news report here. 
This is a Fox News, June 18: Obama administration planning to 
file suit against Arizona immigration law. I believe this 
article, and I don't have it highlighted here, but my memory 
says that your department has produced a draft civil complaint. 
Does that exist?
    Mr. West. I can't respond to the news report that you in 
fact--I don't think I have even read it--that you----
    Mr. King. Respond to my question as to whether you or your 
department have produced a draft civil complaint?
    Mr. West. Again, we are still working through various 
issues. I think it would be inappropriate for me to get into 
any type of internal deliberations that we have at the 
Department of Justice. I can say that this is an issue----
    Mr. King. It is pretty astonishing, Mr. West, not to be 
able to answer a question like that. It is not like this 
affects any pending litigation; whatever you are doing 
internally, you are apparently advising people on how to act 
according to Arizona's immigration law. And if there is an 
internal document known as a draft civil complaint, I would 
think that you could tell us. It has been discussed as far up 
as the Secretary of State. So I wouldn't think that there would 
be an impediment to answering a direct question like that.
    Mr. West. Well, again, I am not in a position to make any 
announcements today about that. And I think it would be 
inappropriate for me to comment on internal deliberations.
    Mr. King. Let me ask you, then, since you read the bill and 
you are familiar with the preemption, do you read anything in 
the bill that would be preempted by existing Federal statute?
    Mr. West. Again, I think, at this point, it would be 
premature for me to share my own thoughts on this.
    I think one of the important steps that we have taken is we 
have, in looking at all of the issues regarding this bill, this 
law, I have personally gone out to Arizona. I have wanted to 
get the input of the Attorney General out there, the Governor 
out there, because it is important to law enforcement 
officials, because it is important for us to take into 
consideration all of the varying views that folks have on this 
particular issue. We are still working through various issues. 
And--but I do anticipate that soon the department will make 
the----
    Mr. King. Have you had any contact with the ACLU on this? 
Have you reviewed their lawsuit? Have you had any contact with 
them?
    Mr. West. Again, we have reached out to law enforcement, to 
a number of different interested parties----
    Mr. King. Including the ACLU?
    Mr. West. Quite frankly----
    Mr. Cohen. Time is up.
    Mr. King. Mr. Chairman, I just ask that the gentleman be 
allowed to answer the question as to whether he has had contact 
with the ACLU.
    Mr. West. I don't know the answer to that question. I 
personally have not.
    Mr. King. Thank you, Mr. Chairman.
    Mr. Cohen. Recently Mr. Lawrence Wilkerson, chief of staff 
to former Secretary of State Colin Powell, said that President 
Bush and others in the Administration knowingly covered up the 
fact that hundreds of innocent men were sent to Guantanamo out 
of fear for their release, for the fear that their release 
could harm the push for war in Iraq and the broader war on 
terror; that they knew what they were doing and knew it was 
illegal.
    Given the severity of those allegations by such a 
distinguished gentleman in that position, what does the Civil 
Division intend to do in following up on these allegations? Is 
there an investigation that you are going to pursue?
    Mr. West. Well, Mr. Chairman, I wouldn't be able to comment 
on whether or not an investigation has been launched with 
regard to that. I can certainly assure you that to the extent 
that there are any violations of law that fall under the 
jurisdiction of the Civil Division, to the extent there is a 
Civil Division component, that would be implicated, it would be 
the type--and again, not speaking specifically to this case, 
but in any case, it would be the type of thing that would get 
some type of attention. But I can't confirm or deny any type of 
investigation.
    Mr. Cohen. What is the status of Yucca Mountain nuclear 
waste litigation?
    Mr. West. Well, we are engaged in various lawsuits 
involving spent nuclear fuel with individuals--with companies 
from the nuclear industry. They are in various stages of 
litigation, some, and I think, beyond that, I probably couldn't 
comment specifically on where we are.
    Mr. Cohen. How much money has been spent on attorneys on 
this case so far?
    Mr. West. I don't know the answer to that question.
    Mr. Cohen. Do you have a ballpark figure?
    Mr. West. For both private and public attorneys, I don't 
know the answer to that question.
    Mr. Cohen. Ballpark figure?
    Mr. West. I don't even have a ballpark figure. I think I 
would have to know a little more about the billing rates of the 
private attorneys involved in those cases.
    Mr. Cohen. How much discretion does the Justice Department 
exercise in determining which cases it is going to pursue? Has 
the Justice Department had any opportunities where they could 
decline? You can decline to defend an action, can you not? Are 
you obligated to defend every action or represent?
    Mr. West. Well, no, there is discretion. There is certainly 
prosecutorial discretion. And within the Civil Division, we 
exercise discretion on whether or not we will intervene in a 
certain case or whether or not we will pursue a certain case. 
So certainly there is an appropriate role for discretion to be 
exercised.
    Mr. Cohen. Have there been times where you can cite to me 
where you exercised this discretion and worked out and resolved 
a case rather than take it to the Supreme Court because you 
thought the facts were different than maybe the other 
Administration had?
    Mr. West. I probably would not be able to cite a specific 
case, not because there isn't one, but because I don't know if 
it would be appropriate to----
    Mr. Cohen. I don't see why it wouldn't be appropriate. If 
you have settled the case, it is a case of the United States 
Government, and part of transparency and openness is to 
disclose those things. There is no problem in disclosing that, 
Mr. West.
    Mr. West. Certainly not disclosing settlements, you are 
right. I am happy to talk about settlements. But if the 
question is, are there cases where we looked at the facts in an 
investigation, made a determination that we would not either 
prosecute or would not go forward, and it did not result in a 
public settlement, then that would be inappropriate for me to 
comment on.
    But I am happy to talk about, Mr. Chairman, if there are 
any settlements in which clearly we have decided to 
compromise----
    Mr. Cohen. Can you give me a few examples, cases where you 
decided because of policy differences between this and the 
previous President that, rather than continue litigation, you 
have engaged in negotiations and come to a settlement?
    Mr. West. Because of policy. I am sorry. I misunderstood 
your question. I think there are two very good examples. One is 
the Cobell litigation, involving Native Americans. Another is 
the Pigford litigation, involving African American farmers, 
which by the way, we appreciate the Congress's movement on both 
of those cases, and we hope that the Senate will follow suit.
    Mr. Cohen. There was a problem, I guess, we had--I don't 
know how much we got on the Pigford case, but there was more 
money than some wanted, and the issue was, did it need a PAYGO?
    When the United States Government settles a case, shouldn't 
the Secretary of Agriculture find a way to pay it? I mean, why 
should he have to be bound by PAYGO when the United States 
Justice Department has settled a case? That is an obligation of 
the government up to that point, right?
    Mr. West. Mr. Chairman, I think I would defer to the 
Secretary's response on that. Certainly, as you know, when the 
Civil Division evaluates a case, it is evaluating it from the 
standpoint is this money that ought to be expended out of the 
judgment fund. Is that an appropriate use of public money to 
compromise a case.
    Mr. Cohen. I yield.
    Would you like to go on, or we can----
    Mr. Franks. Thank you, Mr. Chairman. I will be really 
brief.
    The Civil Division has filed, Mr. West, motions to dismiss 
both lawsuits brought by States challenging the 
constitutionality of the recently passed health care law. And I 
am just wondering if the Office of Legal Counsel has issued an 
opinion on the constitutionality of the health care law, and if 
so, can you provide the Committee with a copy of that opinion?
    Mr. West. I can certainly check and see. I am not--as I sit 
here, I am not aware of that. But I can certainly check and get 
back to you.
    Mr. Franks. All right.
    For the record, Mr. Chairman, I hope we can make that an 
official request, at least on my part.
    In this Congress, Representative Nadler introduced H.R. 
984, the ``State Secrets Protection Act.'' And of course, I am 
concerned, you know, being on the Armed Services Committee and 
some other Committees, that this could potentially be a threat 
to our national security. I think it potentially endangers it. 
But what is your department's position on H.R. 984? Are you 
concerned that the bill threatens U.S. national security in any 
way?
    Mr. West. I am not aware that the department has taken a 
position on that bill.
    I can tell you that the department has instituted, the 
Attorney General has articulated a State Secrets Policy. It is 
a new policy that we follow before any assertion of that 
privilege is made. And the legal standard that we implement is 
to protect against the unauthorized disclosure of any 
information that might cause significant harm to the national 
security.
    Mr. Franks. So, then, if I am understanding you right, you 
have a policy in place. Do you think you need additional 
congressional legislation to deal with that issue?
    Mr. West. Well, again, I am not aware of the department 
having taken a position on that case.
    Mr. Franks. What is your position?
    Mr. West. Well, my position is I think we would be--always 
welcome the opportunity to talk about these issues with 
Congress, and we would welcome the opportunity in this instance 
as well.
    Mr. Franks. Well, you would talk about any issue, wouldn't 
you? That doesn't mean you have a position on it.
    Mr. West. That is true. And certainly, I wouldn't be the 
one to announce, as a matter of first impression, the position 
of the Department of Justice on this issue.
    But I can say that the department's State Secrets Policy is 
one which reflects our concern that it be asserted only in 
those instances where it is absolutely necessary; that it be 
narrowly tailored but that it be tailored to protect against 
any significant harm to the national security.
    Mr. Franks. I think that is the best I am going to get. But 
thank you. That is pretty good actually.
    Thank you, Mr. Chairman.
    Thank you, sir.
    Mr. West. Thank you.
    Mr. Cohen. We have votes, Mr. King. If you would like to 
ask a few questions, go ahead.
    Mr. King. Thank you, Mr. Chairman.
    Mr. West, I have drafted a letter that I sent to Attorney 
General Holder that is dated May 28th, and it is only addressed 
to him, and it has to do with a request for a copy of the draft 
civil complaint that I referenced earlier in our discussion and 
which you have not acknowledged yet of its existence. I would 
just ask you, should I have addressed that letter to you? Have 
you seen that letter?
    Mr. West. I have not seen that letter, Congressman. But I 
am happy if you would like to send me a copy or I can pick one 
up before I leave----
    Mr. King. Actually, I can have my aid hand it to you right 
now. It is pretty short.
    And I would ask unanimous consent to introduce that letter 
into the record.
    Mr. Cohen. Without objection.
    [The information referred to follows:]
    
    
                               __________

    Mr. King. Thank you, Mr. Chairman.
    And it is very brief, and I won't belabor this point. It 
simply asks for a copy of the draft civil complaint. And I 
understand that you won't be in a position to respond to that 
letter here. And I won't put you on that spot and ask you, Mr. 
West.
    Mr. West. I appreciate it.
    Mr. King. Thank you.
    But I would like to explore this Arizona case just a little 
bit more. Also, I think I may have put some words in your mouth 
in the earlier exchange, and I would like to provide the 
opportunity for clarification, because I believe I said that 
you or your department had argued that the interstate 
commerce--the Commerce Clause was a component. I have read that 
in the news, but I don't know that I have read a quote from the 
Justice Department on that point.
    So would you care to clarify as to whether that is on the 
record one of the arguments that would be made by the Justice 
Department?
    Mr. West. I can certainly say that, in the briefs that we 
have filed, several of them--several of the cases that have 
been filed challenging the Affordable Care Act raise the 
Commerce Clause issue. They make Commerce Clause arguments and 
we have responded in kind. So we are responding to suits that 
have been filed, and our response is a motion to dismiss, 
respond to arguments based on the Commerce Clause that 
plaintiffs have raised.
    Mr. King. Fair enough. I just wanted to make sure we had 
the record clear, and I didn't push you into something that 
wasn't your position or imply something, because I recall the 
testimony of the Attorney General here some weeks ago before 
the Committee, and I think most everybody in America saw some 
clips from that.
    In that testimony that day, without putting words in the 
mouth of the Attorney General, I will submit that he conceded 
the point that he had been directed by the President or the 
White House at least to bring suit against Arizona's 
immigration law. And when questioned about where he might have 
concerns about Arizona's immigration law, S.B. 1070, questioned 
about what points in the Constitution might be 
unconstitutional, what points--what Federal statute might 
preempt Arizona's law or what controlling case law might be the 
concern that would bring the Justice Department to bring suit 
against Arizona, the Attorney General wasn't able to answer any 
of those questions about the Constitution, Federal preemption 
or case law.
    Subsequent to that questioning, he acknowledged he hadn't 
read the bill, but he had been directed to bring suit against 
Arizona. And at the end of his response to my questions, he was 
allotted time to respond to my questions after the clock had 
run out, and he said that the office is not politicized.
    It is hard to accept that statement when there is a suit 
that is being brought by the Justice Department against a law 
that has been passed by a State that mirrors Federal law; if 
Federal law is constitutional and the legislation itself says 
that it will be able to conform with Arizona and the U.S. 
Constitution, it is hard to accept the idea that the Justice 
Department is not politicized if a decision can be made in the 
White House, directed to the Attorney General, acted upon by 
the Justice Department, including your division within the 
Justice Department, and you are the first person that has come 
from the Justice Department that has actually read the bill.
    You recognize how hard it is for us here on this panel, 
representing the voice of the American people, to accept the 
argument that the office has not become politicized. What else 
could be the motive if the President has made this order or the 
people who speak for him and nobody has read the bill? What 
otherwise could be the motive? And how could the Justice 
Department act on anything other than the law itself? And the 
equal justice under the law, the blindfolded Lady Justice that 
I mentioned in my opening remarks, Mr. West. Those trouble me 
and I would appreciate your response.
    Mr. West. Just to clarify the question that you would like 
me to answer is--I am sorry, I just didn't quite----
    Mr. King. How can we be asked to accept the statement of 
the Attorney General that the Justice Department is not 
politicized in the face of all of this and evidence to the 
contrary, much of which I haven't stated today?
    Mr. West. I think, really, the only way that I can answer 
that--I appreciate the perspective that you have--is that the 
Attorney General really thinks of himself as a career Justice 
Department attorney. He grew up in the Department of Justice, 
started there as a line attorney, made his career there. And I 
know that he is committed in an unwavering way to a 
nonpartisan, nonpoliticized Department of Justice that acts to 
do what is in the best interest of the United States and the 
American people.
    For me, I got my start at the Department of Justice early. 
I think of myself very much as a line lawyer. I was an AUSA for 
5 years. And before that, I was an attorney in Main Justice.
    And I think one of the things that the Attorney General has 
articulated well and one of the things that I have always loved 
about the Department of Justice is that it is one of the few 
places in this country where you can go and your overriding 
charge is to do, not what is popular or partisan or political, 
but to do what is right. And I appreciate that there may be 
differences of opinion on whether or not one is doing what one 
is doing in alliance with any particular view of the world.
    But I guess the only way I can answer that question is to 
say that I appreciate the perspective. With regard to this 
particular law, this particular litigation, we have endeavored 
to get the input of the Attorney General of the State of 
Arizona, the Governor of the State of Arizona. It is something 
that we take very seriously, and we continue to work through 
various issues.
    Mr. King. Mr. West, I appreciate the manner with which you 
have conducted yourself here at this hearing today and also the 
difficult position that you might find yourself in today. So 
thank you very much for your testimony.
    I yield back the balance of my time.
    Mr. West. Thank you, Congressman.
    Mr. Cohen. Thank you.
    I would like to thank the witness for his testimony today.
    Without objection, the Members have 5 legislative days to 
submit additional written questions, which are forwarded to the 
witness, and ask him to answer as promptly as he can to be made 
a part of the record.
    Without objection, the record will remain open for 5 
legislative days for the submission of any other material.
    Thank you, Mr. West.
    The hearing is adjourned.
    [Whereupon, at 12:03 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, Jr., a 
   Representative in Congress from the State of Georgia, and Member, 
           Subcommittee on Commercial and Administrative Law




                                

     Post-Hearing Questions submitted to the Honorable Tony West, 
   Assistant Attorney General, Civil Division, Department of Justice*
---------------------------------------------------------------------------
    *Note: The Subcommittee did not receive a response to the post-
hearing questions submitted to this witness prior to the printing of 
this hearing.






                                 
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