[Senate Hearing 111-403]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 111-403

                           THE UNITED STATES



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE


                             FIRST SESSION


                         JANUARY 15 & 16, 2009


                           Serial No. J-111-2


         Printed for the use of the Committee on the Judiciary

                           THE UNITED STATES

                                                        S. Hrg. 111-403

                           THE UNITED STATES



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE


                             FIRST SESSION


                         JANUARY 15 & 16, 2009


                           Serial No. J-111-2


         Printed for the use of the Committee on the Judiciary

56-197                    WASHINGTON : 2010
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512�091800  
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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 ARLEN SPECTER, Pennsylvania
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
BENJAMIN L. CARDIN, Maryland         LINDSEY O. GRAHAM, South Carolina
RON WYDEN, Oregon                    TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
              Nicholas A. Rossi, Republican Chief Counsel

                            C O N T E N T S


         Thursday, January 15, 2009 & Friday, Junuary 16, 2009



Cardin, Hon. Benjamin L., a U.S. Senator from the State of 
  Maryland, Prepared statement...................................   409
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont
    January 15, 2009 Opening statement...........................     1
    January 15, 2009 Prepared statement..........................   489
    January 16, 2009 Opening statement...........................   199
    January 16, 2009 Prepared statement..........................   491
Specter, Hon. Arlen, a U.S. Senator from the State of 
    January 15, 2009 Opening statement...........................     3
    January 15, 2009 Prepared statement..........................   599
    January 16, 2009 Opening statement...........................   200


Norton, Hon. Eleanor Holmes, a Delegate in Congress from the 
  District of Columbia Presenting Eric H. Holder, Jr., Nominee to 
  be Attorney General of the United States.......................    10
Warner, Hon. John W., former U.S. Senator from the State of 
  Virginia Presenting Eric H. Holder, Jr., Nominee to be Attorney 
  General of the United States...................................     6

                        STATEMENT OF THE NOMINEE

Holder, Eric H., Jr., Nominee to be Attorney General of the 
  United States..................................................    12
    Questionnaire................................................    16


Canterbury, Chuck, National President, National Fraternal Order 
  of Police......................................................   205
Conner, Joseph F., Glen Rock, New Jersey.........................   211
Freeh, Louis, J., former Director, Federal Bureau of 
  Investigation..................................................   201
Hahn, Richard S., Hahn & Company, former FBI Special Agent, Seal 
  Beach, California..............................................   215
Halbrook, Stephen P. Attorney at Law, Fairfax, Virginia..........   218
Payton, John, President and Director Counsel, NAACP Legal Defense 
  and Educational Fund, Inc......................................   207
Townsend, Frances M. Fragos, former Homeland Security Adviser to 
  President George W. Bush.......................................   209

                         QUESTIONS AND ANSWERS

Responses of Joseph Connor to questions submitted by Senator 
  Specter........................................................   229
Responses of Richard Hahn to questions submitted by Senator 
  Specter........................................................   232
Responses of Frances Fragos Townsend to questions submitted by 
  Senator Specter................................................   236
Responses of Eric H. Holder Jr. to questions submitted by Senator 
  Coburn.........................................................   238
Responses of Eric H. Holder Jr. to questions submitted by Senator 
  Cornyn.........................................................   249
Responses of Eric H. Holder Jr. to questions submitted by Senator 
  Feingold.......................................................   257
Responses of Eric H. Holder Jr. to questions submitted by Senator 
  Graham.........................................................   263
Responses of Eric H. Holder Jr. to questions submitted by Senator 
  Grassley.......................................................   265
Responses of Eric H. Holder Jr.,. to questions submitted by 
  Senator Hatch..................................................   308
Responses of Eric H. Holder Jr. to questions submitted by Senator 
  Kohl...........................................................   312
Responses of Eric H. Holder Jr. to questions submitted by Senator 
  Kyl............................................................   314
Responses of Eric H. Holder Jr. to questions submitted by Senator 
  Specter on behalf of Senator Martinez..........................   321
Responses of Eric H. Holder Jr. to questions submitted by Senator 
  Sessions.......................................................   323
Responses of Eric H. Holder Jr. to questions submitted by Senator 
  Specter........................................................   331
Responses of Eric H. Holder Jr. to questions submitted by Senator 
  Whitehouse.....................................................   365

                       SUBMISSION FOR THE RECORD

Adler, J., National President, Federal Law Enforcement Officers 
  Association, Lewisberry, Pennsylvania, letter..................   366
Aguayo, Samuel M., M.D., Staff Physician, Atlanta Veterans 
  Affairs Medical Center, former Professor and Chairman, 
  Department of Medicine, and Associate Dean for Veterans 
  Affairs, Morehouse School of Medicine, letter..................   369
Allen, Ernie, President & CEO, National Center for Missing & 
  Exploited Children, Alexandria, Virginia, letter...............   372
American Federation of Labor and Congress of Industrial 
  Organizations, William Samuel, Director, Government Affairs 
  Department, Washington, DC, letter.............................   373
American-Arab Anti-Discrimination Committee, Kareem Shora, J.D., 
  LLM, Washington, DC, letter....................................   374
Anti-Defamation League, Glen S. Lewy, National Chair, and Abraham 
  H. Foxman, National Director, New York, New York, letter.......   376
Asian American Justice Center, Karen K. Narasaki, President and 
  Executive Director, Washington, D.C., letter...................   378
Bar Association of the District of Columbia, Ralph P. Albrecht, 
  President, and James G. Flood, President-Elect, Washington, DC, 
  joint letter...................................................   379
Barr, Hon. Bob, a former Representatives in Congress from the 
  State of Georgia, letter.......................................   381
Barr, William P., former General Counsel, Verizon Corp. and 
  former Attorney General of the United States; Manus M. Cooney, 
  President, The TCH Group, former Chief Counsel, Senate 
  Judiciary Committee; Makan Delrahim, Brownstein Hyatt & Farber 
  Schreck, LLP, former Staff Director Senate Judiciary Committee 
  and former Deputy Assistant Attorney General of the United 
  States; Joseph E. DiGenova, DiGenova & Toensing, former United 
  States Attorney for the District of Columbia; Stuart M. Gerson, 
  Epstein Becker & Green, P.C., former Acting Attorney General 
  and Assistant Attorney General of the United States; Michael J. 
  Madigan, Orrick, Herrington & Sutcliffe LLP, former Federal 
  Prosecutor and Chief Counsel, Senate Special Investigation, 
  Committee on Governmental Affairs; Michael O'Neill, George 
  Mason University, former Chief Counsel and Staff Director, 
  Senate Committee on the Judiciary, former Commissioner, United 
  States Sentencing Commission, George J. Terwilliger III, White 
  & Case, former United States Attorney for the District of 
  Vermont, former Deputy Attorney General of the United States; 
  Victoria Toensing, DiGenova & Toensing, former Deputy Assistant 
  Attorney General of the United States and Chief Counsel, Senate 
  Intelligence Committee; and Charles R. Work, McDermott Will & 
  Emery, former Federal Prosecutor and former President, District 
  of Columbia Bar, joint letter..................................   384
Brady Campaign to Prevent Violence and Survivors, Jennifer 
  Bishop, The Brady Campaign to Prevent Gun Violence, Washington, 
  DC, statement..................................................   387
Break the Cycle; Family Violence Prevention Fund; National 
  Alliance to End Sexual Violence; National Congress of American 
  Indians Task Force on Violence Against Native Women; National 
  Latino Alliance for the Elimination Of Domestic violence; 
  National Network to End Domestic Violence; National Network to 
  End Domestic Violence; National Organization of Sisters of 
  Color Ending Sexual Assault; Pennsylvania Coalition Against 
  Rape; Sacred Circle, January 5, 2009 letter....................   388
Bryant, Dan, Senior Vice President, Global Public Policy and 
  Government Affairs, Pepsi Co, former Assistant Attorney 
  General, Office of Legal Policy, and Office of Legislative 
  Affairs, and Chris Wray, Partner, King Spalding, former 
  Assistant Attorney General Criminal Division, joint letter.....   390
Burlingame, Debra, Co-founder, 9/11 Families for a Safe & Strong 
  America, statement.............................................   391
Burton, Dan, a Representatives in Congress from the State of 
  Indiana, letter................................................   396
Cabral, Sam A., International President, International Union of 
  Police Associations AFL-CIO, Alexandria, Virginia, letter......   400
Calhoun, S. Brady, Northwest Florida Daily New, December 5, 2008 
  article........................................................   402
Campbell, Stanley V., Jr., Chief Executive Officer, Business 
  Intel Solutions, Washington, DC, letter........................   404
Canterbury, Chuck, National President, National Fraternal Order 
  of Police, Washington, DC, statement...........................   405
Cognetti, Sal, Jr., Foley, Cognetti, Comerford, Cimini & Cummins, 
  Law Office, Scranton, Pennsylvania, letter.....................   412
Coleman, William T., Jr., Senior Partner and Senior Counselor, 
  O'Melveny & Myers LLP, Washington, DC, letter..................   414
Comey, James B., McLean, Virginia, letter........................   415
Congressional Black Caucus, Barbara Lee, Chairwoman, Washington, 
  DC, letter.....................................................   416
Connor, Joseph F., Glen Rock, New Jersey, statement and letter...   419
Connors, Edward, President, Institute for Law and Justice, 
  Alexandria, Virginia, letter and attachment....................   424
Constitutional Accountability Center, Doug Kendall, President, 
  Washington, DC, letter.........................................   427
Dees, Morris, Founder and Chief Trial Counsel, Southern Poverty 
  Law Center, Montgomery, Alabama, letter........................   429
Elofson, Matt, October 6, 2008, article..........................   431
English, Sharon J., Homicide Victim Survivor, Crime Victim 
  Services Advocate, Sacramento, California, letter..............   432
FBI, Director, Memorandum to Mr. Esposito........................   433
Floyd, Craig W., Chairman and Chief Executive Officer, National 
  Law Enforcement Officers Memorial Fund, Inc., Washington, DC, 
  letter.........................................................   435
Fortuno, Luis G., Governor, San Juan, Puerto Rico, letter........   436
Freeh, Louis J., former Director, Federal Bureau of 
  Investigation, statement and letter............................   438
Gaboury, Mario Thomas, J.D., Ph.D., Professor and Chair of 
  Criminal Justice, University of New Haven, West Haven, 
  Connecticut, letter............................................   442
Gelder, Barbara Van, former Assistant United States Attorney, 
  Washington, DC, letter.........................................   443
Gerstell, Glenn S., former Chairman, District of Columbia Water 
  and Sewer Authority, Washington, DC, letter....................   445
Hahn, Richard S., R. Hahn & Company, Seal Beach, California, and 
  Former FBI Special Agent.......................................   447
Halbrook, Stephen P., Fairfax, Virginia, statement...............   453
Hills, Carla A., Hills & Company, International Consultants, 
  Washington, DC., letter........................................   458
Hispanic National Bar Association, Ramona E. Romero, Esq., 
  National President, Washington, DC., letter....................   459
Hoar, General Joseph, USMC; Vice Admiral Lee F. Gunn, USN; Lt. 
  General Charles Otstott, USA; Major General Paul D. Eaton, USA; 
  Rear Admiral John D. Hutson, USN; Major General William L. 
  Nash, USA; Brigadier General James P. Cullen, USA; Brigadier 
  General, David R. Irvine, USA; Brigadier General Murray G. 
  Sagsveen; and Brigadier General Steven N. Xenakis, USA, joint 
  letter.........................................................   461
Holder, Eric H., Jr., Covington & Burling LLP, Washington, DC., 
  letter.........................................................   463
Holder, Eric H., Jr., Nominee to be Attorney General of the 
  United, statement..............................................   465
Hutchinson, Asa, Asa Hutchinson Law Group, Washington, D.C., 
  letter.........................................................   469
Illinois Victims, Jennifer Bishop-Jenkins, Founder, Northfield 
  Illinois, letter...............................................   471
International Association of Chiefs of Police, Russell B. Laine, 
  President, Alexandria, Virginia, letter........................   472
International Organization for Victim Assistance, Marlene A. 
  Young, Ph.D., J.D., President, Newberg, Oregon, letter.........   473
Judicial Watch, Thomas Fitton, President, Washington, DC., letter   474
Justice Solutions, NPO, David Beatty, Executive Director, 
  Washington, D.C., letter.......................................   477
Kassa, Jonathan, Executive Director, Security On Campus, Inc., 
  King of Prussia, Pennsylvania, letter..........................   478
La Bella, Charles G., La Bella & McNamara, LLP, San Diego, 
  California, letter.............................................   479
Lamm, Carolyn B., White & Case, Washington, DC., letter..........   481
Leadership Conference on Civil Rights, Wade Henderson, President 
  and CEO, Nancy Zirkin, Executive Vice President, Washington, 
  DC, letter.....................................................   483
Leadership Conference on Civil Rights; Alliance for Justice; 
  American Federation of Labor and Congress of Industrial 
  Organizations; American for Democratic Action, Inc.; Asian 
  American Justice Center; Center for Inquiry; Feminist Majority; 
  Human Rights Campaign; Judge David L. Bazelon Center for Mental 
  Health Law; Lawyers' Committee for Civil Rights Under Law; 
  National Abortion Federation; National Association for the 
  Advancement of Colored People; NAACP Legal Defense & 
  Educational Fund, Inc.; National Council of Jewish Women; 
  National Council of La Raza; National Fair Housing Alliance; 
  National Health Law Program; National Partnership for Women & 
  Families; National Organization for Women; National Urban 
  League; People for the American Way; Planned Parenthood 
  Federation of America, joint letter............................   486
Leary, Mary Lou, National Center for Victims of Crime, 
  Washington, DC., letter........................................   492
Lee, Sheila Jackson, a Representatives in Congress from the State 
  of Texas, letter...............................................   493
Levey, Dan, President, Parents of Murdered Children, Inc., 
  Cincinnati, Ohio, letter.......................................   496
MADD, J.T. Griffin, Vice President of Public Policy, Irving, 
  Texas, letter..................................................   498
Major Cities Chiefs Association, Chief R. Gil Kerlikowske, 
  President, Columbia, Maryland, letter..........................   500
McNulty, Paul J., former Deputy Attorney General and United 
  States Attorney, Washington, D.C., letter......................   501
Mexican American Legal Defense and Educational Fund, John 
  Trasvina, President and General Counsel, Los Angeles, 
  California, letter.............................................   502
Moore, Brian P., Spring Hill, Florida, letter....................   504
Morford, Craig S., Dublin, Ohio, letter..........................   508
National African American Drug Policy Coalition Inc., Arthur L. 
  Burnett, Sr., National Executive Director, Washington, DC, 
  letter.........................................................   510
National Asian Pacific American Bar Association, Andre T. Hahn, 
  Sr., President, Tina Matsuoka, Executive Director, and John C. 
  Yang, Co-Chair, Judiciary Committee, Washington, DC, joint 
  letter.........................................................   512
National Association for the Advancement of Colored People, 
  Benjamin T. Jealous, President & CEO, Julian Bond, Chairman, 
  Baltimore, Maryland, letter....................................   514
National Association for the Advancement of Colored People, 
  Hilary O. Shelton, Vice President for Advocacy/Director 
  Washington Bureau, Washington, DC, letter......................   516
National Association of Assistant United States Attorneys, 
  Richard Delonis, National President, Lake Ridge, Virginia, 
  letter.........................................................   517
National Association of Attorneys General, Tom Miller, Attorney 
  General of Iowa; Patrick Lynch, Attorney general of Rhode 
  Island; Dustin B. McDaniel, Attorney General of Arkansas; John 
  W. Suthers, Attorney General of Colorado; Richard S. Gebelein, 
  Acting Attorney General of Delaware; Thurbert E. Baker, 
  Attorney General of Georgia; Mark J. Bennett, Attorney General 
  of Hawaii; Lisa Madigan, Attorney General of Illinois; Steve 
  Six, Attorney General of Kansas; Jon Bruning, Attorney General 
  of Nebraska; Terry Goddard, Attorney General of Arizona; Edmund 
  G. Brown, Jr., Attorney General of California; Richard 
  Blumenthal, Attorney General of Connecticut, Bill McCollum, 
  Attorney General of Florida; Alicia G. Limtiaco, Attorney 
  General of Guam; Lawrence Wasden, Attorney General of Idaho; 
  Stephen Carter, Attorney General of Indiana; Jack Conway, 
  Attorney General of Kentucky; James D. ``Buddy'' Caldwell, 
  Attorney General of Louisiana; Douglas F. Gansler, Attorney 
  General of Maryland; Lori Swanson, Attorney General of 
  Minnesota; Mike McGrath, Attorney General of Montana, Gary 
  King, Attorney General of New Mexico; Roy Cooper, Attorney 
  General of North Carolina; Larry Long, Attorney General of 
  South Dakota; Mark Shurtleff, Attorney General of Utah; Rob 
  McKenna, Attorney General of Washington; Bruce A. Salzburg, 
  Attorney General of Wyoming; Janet T. Mills, Attorney General 
  of Maine; Martha Coakley, Attorney General of Massachusetts; 
  Jim Hood, Attorney General of Mississippi; Catherine Cortez 
  Masto, Attorney General of Nevada; Andrew Cuomo, Attorney 
  General of New York; W.A. Drew Edmondson, Attorney General of 
  Oklahoma; Robert E. Cooper, Jr., Attorney General of Tennessee; 
  William H. Sorrell, Attorney General of Vermont; Darrell V. 
  McGraw, Jr., Attorney General of West Virginia; Washington, DC, 
  joint letter...................................................   518
National Association of Blacks in Criminal Justice, Robert L. 
  Matthews, President, Fayetteville, Georgia, letter.............   521
National Association of Drug Court Professionals, West 
  Huddleston, Chief Executive Officer, Alexandria, Virginia, 
  letter.........................................................   523
National Association of Police Organizations, Inc., William J. 
  Johnson, Executive Director, Alexandria, Virginia, letter......   524
National Bar Association Region II, Nadine C. Johnson, Director, 
  Bronx, New York, joint letter..................................   525
National Bar Association, Rodney G. Moore, President, Atlanta, 
  Georgia, letter................................................   529
National Black Prosecutors Association, Carmen M. Lineberger, 
  President, Chicago, Illinois, letter...........................   533
National Crime Prevention Council, Alfonso E. Lenhardt, President 
  and CEO, Arlington, Virginia, letter...........................   535
National Crime Victims Research and Treatment Center, Dean G. 
  Kilpatrick, Ph.D., Director, Distinguished University 
  Professor, Medical University of South Carolina, Charleston, 
  South Carolina, letter.........................................   537
National Criminal Justice Association, David Steingraber, 
  President, and Cabell Cropper, Executive Director, Washington, 
  DC., letter....................................................   538
National District Attorneys Association, Joseph I. Cassilly, 
  President, Alexandria, Virginia, letter........................   539
National District Attorneys Association, Joseph I. Cassilly, 
  President, State's Attorney, Harford County, Maryland; 
  Christopher D. Chiles, President-Elect Prosecuting Attorney, 
  Cabell County, West Virginia, Sandee Meyer, Member, Executive 
  Director Prosecuting Attorney Assn, Idaho, Robert P. McCulloch, 
  Member, Prosecuting Attorney, St. Louis County, Missouri; Jan 
  Scully, Member, District Attorney, Sacramento, Sacramento, 
  California, Michael Wright, Member, Prosecuting Attorney, 
  Warren Conint; James P. Fox, Chair, District Attorney, San 
  Mateo County, California; James M. Reams, Treasurer, County 
  Attorney, Rockingham County, New Hampshire; John Gill, Member, 
  District Attorney General's Office, Knoxville, Tennessee; 
  Joshua K. Marquis, Member, District Attorney Clatsop County, 
  Oregon; Luis Valentin, Member County Prosecutor, Monmouth 
  County, New Jersey, joint letter...............................   540
National Fraternal Order of Police, Chuck Canterbury, National 
  President, Washington, DC, letter..............................   542
National Leadership Council for Crime Victim Justice, Sharon J. 
  English, Council Coordinator and Spokesperson, Washington, DC., 
  letter.........................................................   544
National Narcotic Officers' Associations Coalition, Ronald E. 
  Brooks, President, West Covina, California, letter.............   545
National Network to End Domestice Violence, Sue Else, President, 
  Washington, DC, letter.........................................   546
National Network to End Violence Against Immigrant Women, Leslye 
  E. Orloff, Director, Washington, DC, letter....................   547
National Organization for Victim Assistance, A. Robert Denton, 
  President, Alexandria, Virginia, letter........................   550
National Organization of Black Law Enforcement Executives, Jessie 
  Lee, Executive Director, and Joseph A. McMillan, National 
  President, Alexandria, Virginia, letter........................   551
National Organization of Victims of Juvenile Lifers, Jennifer 
  Bishop, Secretary, Washington, DC, letter......................   553
National Partnership for Women & Families, Debra L. Ness, 
  President, Washington, DC, letter..............................   554
National Rifle Association, Wayne LaPierre, Executive Vice 
  President, Chris W. Cox, Executive Director, Fairfax, Virginia, 
  joint letter...................................................   556
National Sheriffs' Association, Sheriff David A. Goad, President, 
  and Aaron D. Kennard, Executive Director, Alexandria, Virginia, 
  letter.........................................................   559
National Troopers Coalition, Dennis Hallion, Chairman, 
  Washington, DC., letter........................................   561
National Women's Law Center, Nancy Duff Campbell, Co-President, 
  and Marcia D. Greenberger, Co-President, Washington, DC, joint 
  letter.........................................................   562
New York Times, January 16, 2009, article........................   565
Noble, Ronald, Director General of Interpol, statement...........   567
Olson, Theodore B., Gibson, Lawyer, Dunn & Crutcher LLP, 
  Washington, DC, letter.........................................   568
Partners-of-Color of District of Columbia Area Lawyers, 
  Washington, DC, joint letter...................................   570
Payton, John, President and Director-Counsel of the NAACP Legal 
  Defense & Educational Fund, Inc., New York, New York, statement   576
People for the American Way, Kathryn Kolbert, President, and 
  Tanya Clay House, Director, Public Policy, Washington, DC, 
  joint letter...................................................   580
Police Executive Research Forum, Chuck Wexler, Executive 
  Director, Washington, D.C., letter.............................   582
Pratt, Larry, Executive Director, Gun Owners of America, 
  Springfield, Virginia, letter..................................   584
Reilly, Brian, Washington, Times, December 14, 1994, article.....   586
Rogers, David, Executive Director, Partnership for Safety and 
  Justice, Portland, Oregon, letter..............................   588
Roper, Roberta, Chairperson and Founder, and Russell P. Butler, 
  Executive Director, Maryland Crime Victims' Resource Center, 
  Inc., Upper Marlboro, Maryland, letter.........................   589
Sarcone, John P., Polk County Attorney, Des Moines, Iowa, letter.   590
Seigle, Thomas R., Executive Vice President, Public Safety Group, 
  Appriss, Louisville, Kentucky, letter..........................   592
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama, 
  letter.........................................................   593
Seymour, Anne, National Victim Advocate, Washington, D.C., letter   595
Shestack, Jerome, former President, Martha Barnett, former 
  President, Dennis Archer, former President, Robert Grey, former 
  President, and Michael Greco, former President, American Bar 
  Association, joint letter......................................   596
Silva, Robert, Mayor, on behalf of the City of Mendota, Mendota, 
  California, letter.............................................   597
Spillett, Roxanne, President and CEO, Boys & Girls Clubs of 
  America, Atlanta, Georgia, letter..............................   601
State Attorneys General, Chief Legal Officers, following States 
  and Territories, Tom Miller, Attorney General of Iowa; Patrick 
  Lynch, Attorney General of Rhode Island; Dustin B. McDaniel, 
  Attorney general of Arkansas; John W. Suthers, Attorney General 
  of Colorado; Bill McCollum, Attorney General of Florida; Mark 
  J. Bennett, Attorney General of Hawaii; Lisa Madigan, Attorney 
  General of Illinois; Steve Six, Attorney General of Kansas; 
  James D. ``Buddy'' Caldwell, Attorney General of Louisiana; Jon 
  Bruning, Attorney General of Nebraska; Terry Goddard, Attorney 
  General of Arizona; Edmund G. Brown, Jr., Attorney General of 
  California; Richard Blumenthal, Attorney General of 
  Connecticut; Thurbert E. Baker, Attorney General of Georgia; 
  Lawrence Wasden, Attorney General of Idaho; Stephen Carter, 
  Attorney General of Indiana; Jack Conway, Attorney General of 
  Kentucky; Janet T. Mills, Attorney General of Maine; Douglas F. 
  Gansler; Attorney General of Maryland; Jim Hood, Attorney 
  General of Mississippi; Catherine Cortez Masto, Attorney 
  General of Nevada; Andrew Cuomo, Attorney General of New York; 
  W. A. Drew Edmondson, Attorney General of Oklahoma; Robert E. 
  Cooper, Jr., Attorney General of Tennessee; William H. Sorrell, 
  Attorney General of Vermont; Darrell V. McGraw, Jr., Attorney 
  General of West Virginia; Martha Coakley, Attorney General of 
  Massachusetts; Mike McGrath, Attorney General of Montana; Gary 
  King, Attorney General of New Mexico; Roy Cooper, Attorney 
  General of North Carolina; Larry Long, Attorney General of 
  South Dakota; Mark Shurtleff, Attorney General of Utah; Rob 
  McKenna, Attorney General of Washington; and Bruce A. Salzburg, 
  Attorney General of Wyoming, joint letter......................   603
Tandy, Karen P., Senior Vice President, Public Affairs & 
  Communications, Motorola, Schaumburg, Illinois, letter.........   606
Thompson, Larry D., Senior Vice President, Government Affairs, 
  Pepsico, Purchase, New York, letter............................   607
Townsend, Frances Fragos, former Homeland Security and Counter 
  Terrorism Advisor to President George W. Bush, Washington, 
  D.C., statement................................................   609
Trentadue, Jesse C., Salt Lake City, Utah, letter................   611
United States Conference of Mayors, Tom Cochran, CEO and 
  Executive Director, Washington, DC., letter....................   615
Velleco, John, Director of Federal Affairs, Gun Owners of 
  America, Springfield, Virginia, statement......................   616
Vickers, Marcia E., Contributing Editor, Fortune Magazine, New 
  York, New York, letter.........................................   618
Wainstein, Kenneth L., Washington, DC, letter....................   621
Walsh, John, Host, America's Most Wanted, Washington, D.C., 
  letter.........................................................   623
Washington, Bar Association, Ronald C. Jessamy, President, 
  Washington, DC, letter.........................................   625
Wicklund, Carl, Executive Director, American Probation and Parole 
  Association, Lexington, Kentucky, letter.......................   627
Williams, Wesley S., Jr., and Karen Hastie Williams, Washington, 
  DC, joint letter...............................................   628
Woodson, Robert L. Sr., President, Center for Neighborhood 
  Enterprise, Washington, DC, letter.............................   629
Young Lawyers Section of the Bar Association, District of 
  Columbia, David E. Hawkins, Chair, Washington, DC., letter.....   630

                      GENERAL OF THE UNITED STATES


                       THURSDAY, JANUARY 15, 2009

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 9:30 a.m., in 
room SR-325, Russell Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Kohl, Feinstein, Feingold, 
Schumer, Durbin, Cardin, Whitehouse, Specter, Hatch, Grassley, 
Kyl, Sessions, Graham, Cornyn, Brownback, and Coburn.

                      THE STATE OF VERMONT

    Chairman Leahy. Good morning. Before we start, just so that 
everybody understands, we are in the historic Senate Caucus 
Room. Normally, we would have been in a different room, but 
there are a number of these hearings going on, and there are 
certainly more people than we normally see in the hearings.
    Lately, there seem to be a number of demonstrations in 
hearings. I just want everybody to understand the ground rules. 
I want everybody to be able to watch this hearing. I want them 
to be able to watch it comfortably. If people stand up and 
block the view of those behind them, I will direct the officers 
to remove the people who are blocking the view.
    Now, I take this position whether people are standing up in 
demonstration of a position for or against what I might hold or 
for or against what Senator Specter might hold or any other 
Senator. I am sure that is not going to be necessary. I am sure 
everybody is going to show the appropriate amount of decorum. 
But that is what we expect, and that is what we will have. So, 
with that, I welcome everybody here.
    The election of Barack Obama and Joe Biden and the 
President-elect's selection of Eric Holder Jr. to be Attorney 
General of the United States provide a historic opportunity for 
the country to move past the partisanship of the past decades. 
We can make a real difference if we come together to solve the 
Nation's problems and protect against serious threats and meet 
the challenges of our times.
    Let us honor the wishes of the American people who in 
November broke through debilitating divisions to join together 
in record numbers. Let us acknowledge that our inspirational 
new President-elect has moved forward promptly to assemble an 
extraordinarily well-qualified and diverse group of Cabinet 
officers and advisers. And let us move away from any kind of 
partisanship to serve the common good.
    It was seven score and four years ago that this Nation 
answered the fundamental question President Lincoln posed in 
his Gettysburg Address and the world learned that liberty, 
equality, and democracy could serve as the foundation for this 
great and united Nation.
    We Americans have cause and occasion to reflect during the 
next several days about our great country. The inauguration of 
our new President is Tuesday; Monday is the holiday the country 
has set aside to celebrate and rededicate ourselves to the 
cause of freedom and equality. Today is the anniversary of the 
birthday of the extraordinary man for whom that holiday is 
named. With this hearing, we take another step up the path 
toward the time Dr. King foresaw: when people are judged by the 
content of their character. Eric Holder has the character to 
serve as the Attorney General of the United States of America. 
He passes any fair confirmation standard. His record of public 
service has earned him strong support from law enforcement 
organizations, civil rights groups, victims' rights advocates, 
former members of the administration of President Reagan, the 
President who first nominated him as a judge, and from those of 
President Bush, and many others.
    This week, the Justice Department's Inspector General 
released a report about the shameful political interference in 
the Civil Rights Division of the Justice Department during the 
past few years. America's diversity when drawn together is a 
source of our Nation's strength and resilience. Americans have 
to be able to trust their Justice Department. That trust can 
never be squandered or taken for granted. We need leaders who 
are prepared to take up the oars of a Justice Department whose 
dedicated law enforcement professionals have been misused and 
demoralized. Eric Holder is just such a leader.
    Before the November election, I co-authored an article with 
my friend, the Ranking Member in which we wrote: ``The Attorney 
General's duty is to uphold the Constitution and the rule of 
law, not to circumvent them. The President and the American 
people are best served by an Attorney General who gives sound 
advice and takes responsible action, rather than one who 
develops legalistic loopholes to serve the partisan ends of a 
particular administration.'' We wrote that article addressed to 
both John McCain and Barack Obama. We wrote it before we knew 
who was going to be President. We wrote it so that the next 
President might adhere to our advice, and I have every 
confidence that Eric Holder is the person we described.
    The career professionals and those of us who have worked 
for years with the career professionals at the Justice 
Department, most of them we have no idea what their political 
background is. We just know how good they are. But they reacted 
with delight when Eric Holder was designated by President-elect 
Obama because they, too, know him well. They know him from his 
12 years as an anti-corruption prosecutor at the Public 
Integrity Section, from his time as the U.S. Attorney for the 
District of Columbia, from his tenure as a judge, and from his 
service as the Deputy Attorney General. And I would hope that 
we would have a prompt confirmation so he can restore morale 
and purpose throughout the Justice Department.
    It is important that the Justice Department have its senior 
leadership in place without delay. The Attorney General is the 
top law enforcement officer in the country; he is a key member 
of the national security team. We have seen billions of dollars 
devoted to bailouts in the last few months. We need to ensure 
that those resources are not diverted by fraud or deceit. We 
need the Justice Department to be at its best.
    I have been encouraged by the initial reaction of many 
Republicans, including some serving on this Committee, when Mr. 
Holder's name was reported as the likely nominee and when he 
was designated by the President-elect. I commended their 
bipartisanship, as I do one of the best friends I have ever had 
in the Senate, Senator John Warner, who will introduce Mr. 
Holder to the Committee.
    The responsibilities of the Attorney General of the United 
States are too important to have this appointment delayed by 
partisan bickering. We have known and worked with Mr. Holder 
for more than 20 years. We knew him when he was nominated by 
President Reagan and we confirmed him; we knew him when he was 
nominated by President Clinton and we confirmed him--three 
times confirmed by the Senate to important positions. His 
record of public service, his integrity, his experience, and 
his commitment to the rule of law merit our respect.
    We need an Attorney General, as Robert Jackson said 68 
years ago, ``who serves the law and not factional purposes, and 
who approaches his task with humility.'' That is the kind of 
man Eric Holder is, the kind of prosecutor Eric Holder always 
was, and the kind of Attorney General he will be. The next 
Attorney General will understand our moral and legal obligation 
to protect the fundamental rights of all Americans and to 
respect the human rights of all people.
    This is part of the change we need and the change the 
American people voted for. When he designated Mr. Holder, 
President-elect Obama said: ``Let me be clear. The Attorney 
General serves the American people. And I have every 
expectation that Eric will protect our people, uphold the 
public trust, and adhere to our Constitution.'' The next 
President understands the role of the Attorney General of the 
United States. And I have no doubt that Mr. Holder understands 
what is required of the Attorney General. His experience and 
the lessons he has learned will serve him and the American 
people well.
    Senator Specter.

                   THE STATE OF PENNSYLVANIA

    Senator Specter. Thank you, Mr. Chairman.
    Next to the President of the United States, there is no 
Federal officer more important than the Attorney General. The 
Attorney General is different from any other Cabinet officer 
because Cabinet officers ordinarily carry out the policies of 
the President. But the Attorney General has an independent duty 
to the people and to uphold the rule of law.
    The Constitution calls for the United States Senate to 
advise and consent, and I agree with the Chairman about the 
necessity to help President-elect Obama tackle the problems of 
enormous difficulties which this Nation faces. There is 
provided in the Constitution separation of power and checks nd 
balances, so that it is the duty of the United States Senate to 
exercise its responsibilities and to make an appropriate 
    Independence is a very important item. Harry Daugherty was 
Attorney General during the Teapot Dome scandal, so I mention 
Attorney General Daugherty because, in coming in, I took a look 
at the long list of hearings, proceedings which have been held 
in this room. One of them was Teapot Dome. Another was the 
sinking of the Lusitania, the McClellan Committee, Iran-contra, 
many, many hearings.
    There has been a question raised as to whether the issues 
which I have posed for Mr. Holder are political in nature. I 
have not hesitated to oppose prominent members of my own party, 
asking pointed questions, which is the constitutional 
responsibility of a Senator in making an independent judgment 
and voting against them when I thought it was warranted. And 
one of those hearings was held right here in this room.
    Almost every major newspaper in the country has commented 
about the importance of questioning Mr. Holder. And as I said 
on the floor, I have an open mind. But I think there are 
important questions to be asked and important questions to be 
    The editorials have commented about the need for the 
questioning of Mr. Holder based upon some of the factors in his 
background. There is no doubt he comes with an excellent 
resume, but there are questions nonetheless. So say the New 
York Times, the Washington Post, the Wall Street Journal, the 
Philadelphia Inquirer, the Rocky Mountain News, and many other 
newspapers across the country.
    The basic issue of national security is perhaps the 
Attorney General's most important responsibility: to protect 
the American people. And I think we need to know how Mr. Holder 
is going to approach that job. What does he think about the 
PATRIOT Act? What does he think about the interrogation 
    There is a big difference between what is faced by those 
who are following the Army Field Manual compared to what the 
FBI does compared to what the CIA does. There are very 
different lines of questioning. And I saw that in the 104th 
Congress when I chaired the Intelligence Committee. I voted 
against waterboarding. It is torture. And I took the lead on 
the Senate floor in fighting for habeas corpus. And I opposed 
President Bush's signing statements. So I have no hesitancy to 
stand up on those issues.
    But there is a very important question of balance, and we 
want to find out how Mr. Holder is going to approach those 
issues. We have major issues of violent crime in this country. 
Career criminals have to be treated one way. I want to know 
what he has in mind about realistic rehabilitation to try to 
take first offenders, and especially juveniles, out of the 
recidivist crime cycle. We have to know where he stands on 
antitrust. We need to know what he will do on the prosecution 
of white-collar crime.
    There has been a spate of fines which look heavy on their 
surface--a million dollars--but contrasted with the billions 
involved in the fraud, it is insufficient. I want to know how 
tough he is going to be along that line, especially with what 
we have seen with corporate fraud leading to the tremendous 
financial problems this country has today.
    At the same time, there has to be a balance of right to 
counsel. Mr. Holder authored in 1999 the memorandum which 
provides that the Department of Justice will go easy on a 
corporation if they will cooperate where individual 
constitutional privileges are involved. That is a matter which 
has to be inquired into, where he stands under the antitrust 
laws. All of these matters I think are appropriate for inquiry, 
and I look forward to an opportunity to discuss them with the 
    One additional comment, and I want to read this because I 
want to get it right. I ordinarily do not read, but I will on 
this. ``Aside from the substance of Mr. Holder's 
qualifications, there is a serious issue on Senators' minority 
rights and the inadequacy of our opportunity for preparation.'' 
On this I speak for the Republican Senatorial Caucus. 
Ordinarily, I speak only for myself, but today I speak for the 
    In light of Mr. Holder's extensive record--and we looked at 
some 86 boxes at one stage--there has been insufficient time 
for the examination of those records. On the Roberts and Alito 
confirmations, the Minority was consulted and accorded the time 
they requested on scheduling. That was not done here. The 
Chairman declined to co-sign a letter requesting records from 
the Clinton Library. With only my signature representing 40-
plus Republican Senators, my request was treated as any other 
citizen's request under the Freedom of Information Act, and the 
records have not been obtained. Where the Minority previously 
had a dozen witnesses under similar circumstances, we got 
three. When two witnesses--Ms. Mary Jo White and Mr. Roger 
Adams--refused to appear, our requests for subpoenas were 
    Realizing the public's understandable disdain for 
Washington's political bickering, we have sought to temper 
these objections, and I retain a cordial relationship with the 
Chairman, with whom I have worked very closely for many years, 
but feel constrained to recite them here briefly for the 
    I thank the Chair.
    Chairman Leahy. Well, I thank my good friend from 
Pennsylvania. I would note that I think the last hearing for 
Attorney General Mukasey was--I think we did it in 4 weeks. I 
do recall the Deputy Republican Leader being critical it took 4 
weeks, and he said something about 3 weeks should have been 
enough. I believe we had a recess of some sort in between 
there. We did it in 4 weeks. They said that was not really fast 
enough. This has been--Mr. Holder was--we were told by the 
Obama team in November that he was going to be the nominee. We 
had November and December, and now we are into January. I did 
postpone it by an extra week from the time. I did say at the 
time that made it--it went several weeks beyond what the 
Republican Leader had said it should take for an Attorney 
    Now, this is not a lifetime position either, unlike the 
lifetime positions of our Supreme Court Justices. But be that 
as it may, I think adequate time has been given. Certainly, 
questions--I understand what the distinguished Ranking Member 
has said about his opposition to waterboarding. As we know, 
Attorney General Mukasey would not declare that as being 
torture. Every Republican voted for him nonetheless. But that 
is why you ask the questions, and we will have the questions.
    One of the first people to introduce is a distinguished 
colleague, John Warner. He is the former senior Senator from 
Virginia. He served here for 30 years. I consider it my 
privilege to have served all those 30 years with him. We have 
traveled together around the world. We have worked together. We 
have done so many significant pieces of bipartisan legislation 
together. He set the tone and tenor of what it should be. I 
have referred to him over the years as ``my Senator when I am 
away from home'' and spending time in a home in Virginia. I 
consider him a Senator's Senator.
    Senator Warner, please go ahead.


    Senator Warner. Thank you, Mr. Chairman and distinguished 
Ranking Member, and to each of my colleagues. I am deeply 
humbled by this opportunity to appear this morning and 
participate in what I regard, and I think you regard, as one of 
the most solemn responsibilities of the United States Senate: 
fulfilling our constitutional responsibility of advise and 
    I have been privileged through these 30 years in the United 
States Senate to know each of you and to work with each of you 
and to form my own opinion that each of you will fairly and 
objectively and conscientiously approach this solemn duty of 
advise and consent for this historic nomination of Eric Holder 
to be the chief law enforcement officer of our Nation, the 
Attorney General of the United States of America.
    I have known Mr. Holder for a number of years. We both 
started our careers basically as prosecutors, although 
separated by at least 20-some-odd years, two decades. And we 
approached our duties in life based upon the foundations that 
we were taught and learned in the role as prosecutors, both 
here in the Nation's capital.
    So I have joined this morning out of friendship, but also I 
weigh very heavily coming before the Senate again so soon after 
my retirement, but I felt that I wanted to be among those all 
across this Nation who are working for a bipartisan approach to 
support the President-elect in facing what I think each of us 
believes is the most complicated and challenging set of issues 
that ever faced a President.
    Behind me sits Eric Holder, and the President-elect has 
exercised his judgment that this is the individual whom he 
deems best qualified--from the hundreds of thousands of lawyers 
serving in the United States, the best qualified to become the 
Attorney General of the United States.
    I am also privileged to be joined this morning by a very 
good friend, Eleanor Holmes Norton. We have worked together on 
behalf of the Greater Capital Region these many years, and I am 
privileged to say that we have had some accomplishments through 
these years.
    Quickly, Mr. Chairman, the public record has a complete 
dossier on this nominee, but given that people in every corner 
of the United States today are following this hearing, this 
very important hearing, I would like, with the permission of 
the Chair and Ranking Member, to briefly summarize how this 
distinguished American got from his home in the greater 
environment of New York City and a household which he proudly 
classifies as ``middle class'' to become the nominee for 
Attorney General of the United States. It is truly remarkable.
    Fortunately, the elders in his household, parents and 
others, put great emphasis on education. Consequently, he 
excelled in public schools and then went on and had the good 
fortune to get his undergraduate degree and his law degree from 
Columbia University. And then rather than go into a top law 
firm and perhaps a lucrative opportunity, as we say in the 
trial profession, he ``plunged into the cauldron of the 
courtroom'' to start his career, arguing case after case before 
the juries and the judges.
    Prosecution is a tough way to enter the profession, but 
both of us chose this course. He was a Federal prosecutor in 
the Public Integrity Section of the U.S. Department of Justice. 
There he tried many cases and prosecuted successfully widely 
heralded public corruption cases against officials from both--
and I emphasize ``both''--political parties, as recognized by 
the Chairman and the Ranking Member in their opening 
    Thereafter, Eric was appointed a D.C. Superior Court judge 
by President Ronald Reagan, recognizing this man's impartiality 
and his bipartisan approach to the rule of law. We always must 
come back that the rule of law is the fundamental foundation of 
this great Nation of ours. He performed his duties on the bench 
with distinction, won the accolades of both the bench and the 
bar, and then was appointed the United States Attorney for the 
District of Columbia in 1993.
    Having been a member of that office, as I said, two decades 
before, I wish to point out that the United States Attorney for 
the District of Columbia has a very wide range of jurisdiction, 
and much of it relates to common law crime, unlike other U.S. 
    He performed that subject and that responsibility from 1993 
to 1997. From 1997 to 2001, he served as Deputy Attorney 
General of the United States, the critically important number 
two job at the Department of Justice, and there he gained 
invaluable experience for his current nomination and developed 
a bipartisan reputation in making difficult and tough 
    And on that point, I have had an opportunity in preparing 
for this hearing to visit with the nominee, and many, many 
colleagues who have known him and came up through the similar 
chairs of responsibility in the Department of Justice.
    Mr. Chairman, Eric Holder would be the first to say that 
his career was marked by certain misjudgments. He freely 
acknowledges that. I doubt if there is one of us in this room, 
particularly those of us who have been prosecutors, who have 
not looked back on our careers and recognized that we have made 
misjudgments. But the key to this man is that he learned from 
those experiences and learned in such a way that those 
misjudgments will not be repeated.
    From 2001 to the present, he practiced law as a partner in 
the prestigious firm here in Washington, D.C., the firm of 
Covington & Burling, for experience in our criminal justice 
system on the other side, namely that of counsel to those who 
had the misfortune to fall afoul of the law. He also 
represented major companies' executives in a wide variety of 
complex litigation. That is experience that he will find 
invaluable if confirmed by the Senate in this new position.
    We both readily acknowledge, Eric Holder and I, that we 
achieved our goals in life largely by learning from career 
public servants with whom we had the privilege to serve--the 
clerks, the judges, the Justices at all levels of our courts, 
our fellow prosecutors, and the vast system of careerists that 
serve America to provide for the rule of law and the respect we 
have for the Constitution.
    I humbly acknowledge my gratitude for having received that 
same benefit that he did, because the Department of Justice is 
known perhaps more so than any other Department, save the 
Department of Defense, for a cadre of careerists who put the 
rule of law and their oath to the Constitution foremost in 
discharging their responsibilities.
    I mentioned that having had that same experience, I had the 
opportunity in later life when I was privileged to be here in 
the Senate working in association with my good colleague here, 
to recognize a judge, a Federal circuit judge in the Nation's 
capital for whom I served as a law clerk, Judge E. Barrett 
Prettyman, and naming the courthouse for him, and later joining 
again with my colleague to my left to name the next addition to 
the Federal courthouse for a man named William Bryant.
    Now, William Bryant was a prosecutor, in a sense a career 
one, a defense counsel, and as a young man in the prosecutor's 
office, I learned more from William Bryant as to how to try a 
case and the vagaries of appearing before the jury and the 
trial judges than from any law professor in my career.
    So that was the way I have acknowledged the careerists. Our 
distinguished nominee in his opening statement will do 
likewise. But it is essential--and this nominee will do that. 
It is essential to protect those careerists in the operations 
and functions they have in the Department of Justice from the 
always present political pressures that exist in every single 
corner of the Nation's capital and the Government. He will 
protect them so that they can perform their duties.
    He will be the principal adviser to the President, and much 
has been said in the opening statements by both of my 
distinguished colleagues, the Chairman and Ranking Member, 
about the importance of the rule of law and independence. And I 
went back and read the Congressional Record, Senator Specter, 
where you delivered quite an oration here on the 6th of January 
this year. And in it you said the following: ``The Attorney 
General is unlike any other Cabinet officer whose duty is to 
carry out the President's policies. The Attorney General has 
the corollary, independent responsibility''--I repeat, 
``independent responsibility to the people to uphold the rule 
of law.''
    Then joining the distinguished Chairman, you wrote the 
following, the two of you: ``The Attorney General's duty is to 
uphold the Constitution and the rule of law, not to circumvent 
them. The President and the American people are best served by 
an Attorney General who gives sound advice and takes 
responsible action.'' That is the nominee, in my judgment.
    I was so privileged to join so many distinguished lawyers 
whom I have known and served with who have come forth 
unsolicited, largely Republican in background, who have served 
as Deputy Attorney General, as prosecutors from all over the 
country, to lend our support to this important hearing. I would 
hope and ask if I might put in as a part of the record some of 
those exceptional letters.
    Chairman Leahy. Without objection, they will be part of the 
    Senator Warner. But I would point out, again, my pride to 
have joined with them, most of them having far more 
distinguished legal careers than I have. But it is interesting, 
Mr. Chairman, as I read those letters. They had a common theme 
in describing this nominee. It was in several of the letters. 
It was very simple, but very profound, and it stated as 
follows, and I quote them: ``Eric Holder is a good man.'' And 
that says a lot.
    I would further note that our 41st President, George 
Herbert Walker Bush, in a public appearance on television, when 
asked about the President, he said, ``I wish the new President 
well.'' And then his son, our current President, likewise has 
wished this President well. This President has made a choice. 
This President has chosen the individual that is going to come 
before you momentarily in advise and consent.
    It is the gravity of the times that gives rise to the 
unprecedented level of bipartisanship that accompanies all 
stages of the formation of this new administration and this 
historic inauguration to be held next week.
    I thank the Chair.
    Chairman Leahy. Thank you. Thank you, Senator Warner. You 
and I have sat on the inaugural stand for inaugurations of both 
Democrats and Republicans as President, and I think we have 
both wished whoever, whichever party they were from, wished 
them well.
    Congresswoman Norton, I want to recognize you. You were 
recently elected by the people of the District of Columbia to 
your 11th consecutive term in the House of Representatives, and 
please, Congresswoman Norton, go ahead.


    Ms. Norton. Thank you very much, Mr. Chairman.
    Unrelated to my own testimony, I have been asked by the 
Chair of the Congressional Black Caucus to request that her 
letter for the caucus in support of Mr. Holder be admitted into 
the record.
    Chairman Leahy. Thank you. It will be. Senator Feinstein 
had already sent that letter and asked that it be part of the 
record. I read the letter. It definitely will be part of the 
    Ms. Norton. Thank you, Mr. Chairman.
    Mr. Chairman, it is a particular pleasure to appear before 
you this morning with my good friend whom I miss already. The 
fact that John Warner, who enjoys such a sterling reputation in 
this body, has stood for Eric Holder I think speaks volumes 
about Mr. Holder's experience and character.
    Considering your time restraints, I am going to read my 
thoughts this morning, Mr. Chairman and Ranking Member Specter. 
I am pleased to introduce Eric Holder, a long-time resident of 
the District of Columbia, but my few words this morning have 
little in common with the predictable introductions by home-
State Senators and others. I did not know Eric Holder until he 
competed for the post of United States Attorney for the 
District of Columbia. I came to know him in much the same way 
that you will know him after today's hearing.
    Because the District has the same Federal officials as the 
States, but no Senators, President Bill Clinton granted me the 
courtesy to recommend the U.S. Attorney, District Court judges, 
and the U.S. Marshal. In the District's two centuries as the 
Nation's capital, residents had had to live with the decisions 
of these important Federal officials while having no way to 
effect their appointments. I was determined to vindicate the 
President's courtesy by the transparency and the 
competitiveness of the process and the excellence of the 
candidates recommended. I appointed a commission of 
distinguished lawyers and other private citizens, named as 
Chair Pauline Schneider, a past president of the District of 
Columbia Bar Association, and charged the commission to search 
widely for candidates and to thoroughly investigate and 
interview them and send me three candidates for each post. I 
then made my recommendations to the President for each post 
after doing my own due diligence and interviewing the three 
candidates. Some may think that Washington has more lawyers 
than people with good sense, but lawyers in this town are among 
the most able in the United States. The commission soon heard 
from some of the best of the lot.
    Eric Holder's distinguished biography is before you. 
Without reiterating the many features of the academic and legal 
background that recommend his appointment, what particularly 
stood out for us were the uniformly excellent reports 
concerning his work in the Justice Department's first Public 
Integrity Section, his nomination by President Ronald Reagan to 
the D.C. Superior Court, whose appointments, as Article I 
judges, are made by the President, and the high praise for his 
service there, the outstanding evaluations of his extensive and 
varied criminal and civil trial experience, and his 
unimpeachable character and collegiality, as reported by all 
who had worked with Eric Holder. Perhaps the best indication of 
Eric's excellence, however, is that in a very competitive pool 
of the best and the brightest, he rose to the top like cream in 
rich milk.
    Besides demonstrating his own excellence, however, Eric 
carried an unusual burden, of which he was unaware. More than 
usual, the quality of the commission's recommendations for U.S. 
Attorney and for judges were of path-breaking importance. We 
knew that these appointments were without precedent in the 
city's history. Even small differences in quality mattered, if 
the point was not only to get the best candidates but to 
demonstrate that this city could do so.
    Eric Holder created a new gold standard for the position of 
United States Attorney for the District of Columbia. The 
Republican U.S. Attorneys who followed him adopted his 
innovations, localizing the District part of his jurisdiction 
by, for example, placing Assistant U.S. Attorneys in 
communities for the very first time while simultaneously 
carrying forward significant Federal prosecutions. Eric wore 
two very different, high-profile hats at the same time with 
remarkable skill. He more than vindicated the challenge he was 
given and our confidence in him. Eric Holder may be the first 
person to work his way up from career trial attorney in the 
Department of Justice to become the United States Attorney 
General. Imagine the effect his appointment will have on the 
demoralized Department of Justice staff. If experience at every 
level of the Department and a record of excelling in everything 
you have ever done matters to this Committee, Eric Holder is 
unusually well qualified to become our Attorney General. I am 
pleased and proud to recommend him to you without reservation.
    Chairman Leahy. Well, Congresswoman, you and I have served 
together for over 20 years, and I worked closely with you on a 
number of things, and that is high praise indeed, and I 
appreciate it.
    Senator Warner. I know you and the Congresswoman have many 
other places to go. Thank you for taking the time here. We will 
rearrange the dais a little bit and give Mr. Holder a chance.
    Chairman Leahy. Mr. Holder, will you please stand and raise 
your right hand? Do you affirm or swear that the testimony you 
are about to give before this Committee will be the truth, the 
whole truth, and nothing but the truth, so help you God?
    Mr. Holder. I do.
    Chairman Leahy. Thank you. Please be seated.
    I am never sure whether to address you as Mr. Holder, Judge 
Holder, Deputy Attorney General Holder, but, Mr. Holder, please 
go ahead and give your opening statement.
    First, before you do, though, would you introduce the 
members--before we start the clock, would you introduce the 
members of your family? I have already met them, but so all the 
members of the Committee can see them here.
    Mr. Holder. Thank you, Mr. Chairman. Seated behind me, 
right behind me, is my wife, Dr. Sharon Malone. The beautiful 
woman to her left is my mother, Miriam Holder. A series of 
beautiful young women here is my daughter, Maya Holder, Brook 
Holder. My little guy there, that is Eric Holder III, born on 
the same day as my father. He was going to have a different 
name, but we decided since he was born on my Dad's birthday, 
his last birthday, that that had to be his name. So he is not 
named after me. He is named after my Dad.
    That is my brother, William Holder; his wife, Debra Holder; 
my niece, Amanda Holder.
    Chairman Leahy. I thank you all, and I know you have many, 
many friends. I see former FBI Director Louis Freeh, and I see 
so many others. But please, Mr. Holder, go ahead.

                      OF THE UNITED STATES

    Mr. Holder. Thank you. Mr. Chairman, Senator Specter, and 
members of the Senate Judiciary Committee: I am deeply honored 
to appear before you today. In 5 days, just a short distance 
from this historic room, the next President of the United 
States will take the oath of office. He will swear to preserve, 
protect, and defend the Constitution of the United States. I 
have been asked by him to serve as Attorney General, the 
Cabinet officer who is the guardian of that revered document.
    I feel the full weight of this responsibility. If confirmed 
by the Senate, I pledge to you and to my fellow citizens that I 
will faithfully execute my duties as Attorney General of the 
United States of America. I will do so by adhering to the 
precepts and the principles of the Constitution, and I will do 
so in a fair, just, and independent manner.
    This is the fourth time I have come before the Senate for 
confirmation to a position in law enforcement. I served almost 
30 years as a prosecutor, judge, and senior official within the 
Department of Justice. President-elect Obama and Vice 
President-elect Biden asked me to assume this responsibility 
because they know I will fight terrorism with every available 
tool at my disposal and reinvigorate the Department's 
traditional missions of protecting public safety and 
safeguarding our precious civil rights.
    I accept their trust in me, and with your support I intend 
to lead an agency that is strong, independent, and worthy of 
the name ``the Department of Justice.''
    Now, I could not have arrived at this moment without the 
sacrifice and example of so many others. I begin, of course, by 
recognizing the support of my family, whom you have just met. 
My wife, Sharon, a respected professional in her own right, has 
put up with a lot over the years because of my demanding work, 
and she has done so with the love and grace that characterizes 
all that she does. Thank you, sweetheart.
    My wife is a tremendously talented physician. But the best 
examples of her skills and qualities as a person are on display 
not in her doctor's office but in our home in the form of our 
three children. They make our lives infinitely richer, and I 
thank them for their love and patience.
    It wasn't until I was a parent myself that I truly 
appreciated all that my parents did for me. My father, only 12 
years old when he came to this country from Barbados, worked 
hard throughout his life to teach my brother and me about the 
promise of America. He and my mother made sure that we never 
wasted the opportunities presented to us, especially an 
education in the excellent New York City public school system. 
My brother grew up to be a Port Authority police officer and a 
successful businessman, and I grew up to arrive at this 
humbling moment. I am glad my mother is here to see this day, 
and I know my father would be proud.
    In addition to my family, there are others who have 
inspired and guided me. Sitting here today, the very day that 
civil rights leader Martin Luther King would have celebrated 
his 80th birthday, I acknowledge the debt that I owe him and 
the thousands of other Americans, black and white, who fought 
and died to break the back of segregation. Dr. King devoted 
himself to breathing life into our Constitution. I feel 
privileged just to stand in his shadow and hope that as 
Attorney General I can honor his legacy.
    Now, one of those who served on the front lines of the 
struggle for equality was my late sister-in-law, Vivian Malone 
Jones, who integrated the University of Alabama in 1963. In an 
atmosphere of hate almost unimaginable to us today, she and 
fellow student James Hood faced down Governor George Wallace, 
and in the presence of then-Deputy Attorney General Nicholas 
Katzenbach, they enrolled in that great university.
    The very next day, NAACP leader Medgar Evers was gunned 
down in his driveway in Mississippi. But Vivian never 
considered backing down. She went to class despite the ever 
present danger, later saying simply that she ``decided not to 
show any fear.'' She never did, throughout her too short life. 
In a career in public service that began in the Civil Rights 
Division at the Department of Justice and ended as an advocate 
for environmental justice, she showed me the meaning of courage 
and perseverance.
    Finally, I want to acknowledge the thousands of career 
employees at the Department of Justice. They have been my 
teachers, my colleagues, and my friends. When I first joined 
the Department's Public Integrity Section in 1976, they showed 
me what it meant to serve the people. When I was the United 
States Attorney in the District of Columbia, they worked beside 
me to fight drug crimes, drug trafficking, and public 
corruption. And when I was Deputy Attorney General of the 
United States, they were my troops in the daily battle for 
    These career professionals are not only the backbone of the 
Department of Justice, they are its soul. If I am confirmed as 
Attorney General, I will listen to them, respect them, and make 
them proud of the vital goals we will pursue together.
    In fact, if I have the honor of becoming Attorney General, 
I will pursue a very specific set of goals:
    First, I will work to strengthen the activities of the 
Federal Government that protect the American people from 
terrorism. Nothing I do is more important.
    I will use every available tactic to defeat our 
adversaries, and I will do so within the letter and the spirit 
of the Constitution. Adherence to the rule of law strengthens 
security by depriving terrorist organizations of their prime 
recruiting tools. America must remain a beacon to the world. We 
will lead by strength, we will lead by wisdom, and we will lead 
by example.
    Second, I will work to restore the credibility of a 
Department badly shaken by allegations of improper political 
interference. Law enforcement decisions and personnel actions 
must be untainted by partisanship. Under my stewardship, the 
Department of Justice will serve justice, not the fleeting 
interests of any political party.
    Attorney General Michael Mukasey and Deputy Attorney 
General Mark Filip have done much to stabilize the Department 
and restore morale. For that, Judges Mukasey and Filip deserve 
the gratitude of the American people, and they have my personal 
gratitude and thanks. But there is more work to do.
    Third, I will reinvigorate the traditional missions of the 
Justice Department. Without ever relaxing our guard in the 
fight against global terrorism, the Department must also 
embrace the historic role in fighting crime that it has, in 
protecting civil rights, preserving the environment, and 
ensuring fairness in the marketplace.
    To that end, the Justice Department must wage an aggressive 
effort against financial fraud and market manipulation. As 
taxpayers are asked to rescue large segments of our economy, 
they also have a right to demand accountability for wrongdoing 
that only the Department of Justice can provide. At the same 
time, we must rededicate ourselves to the fight against violent 
crime which tears at the fabric of our neighborhoods.
    The Justice Department must also defend the civil rights of 
every American. In the last 8 years, vital Federal laws 
designed to protect rights in the workplace, the housing 
market, and the voting booth have languished. Improper 
political hiring has undermined this important mission. That 
must change, and I intend to make this a priority as Attorney 
    The Department of Justice must also protect American 
consumers. We need smart antitrust enforcement to prevent and 
to punish unlawful conduct that hurts markets, excludes 
competition, and harms consumer welfare. The Justice Department 
should also reinvigorate its efforts to protect the public in 
areas such as food and drug safety and consumer product safety. 
And we must work actively with EPA and other agencies to 
protect our environment.
    In all of this, I hope to establish a full partnership with 
this Committee and with Congress as a whole. The checks and 
balances in our Constitution establish a healthy tension among 
the three branches as each ensures that the others do not 
overstep their boundaries. But too often in recent years, that 
natural tension has expressed itself in unhealthy hostility.
    President-elect Obama and I respect Congress. And we 
respect the Federal judiciary. We will carry out our 
constitutional duties within the framework set forth by the 
Founders, and with the humility to recognize that congressional 
oversight and judicial review are necessary; they are 
beneficial attributes of our system and of our Government. In 
particular, I know how much wisdom resides in this Committee 
from your collective decades of service in Government, and I 
will be sure to draw upon it.
    The years I spent in Government taught me a lot. As a 
public corruption prosecutor, I took on powerful interests to 
ensure that citizens received the honest services of the people 
who serve them. As a judge, I used the awesome power I had to 
deprive criminals of their liberty, a power that weighs heavily 
on anyone who exercises it. And as a high-ranking official in 
the Department of Justice, I faced a series of complex, time-
sensitive prosecutorial and administrative decisions every time 
I stepped inside the building.
    Now, my decisions were not always perfect. I made mistakes. 
I hope that enough of my decisions were correct to justify the 
gratifying support that I have received from colleagues in law 
enforcement in recent weeks. But with the benefit of hindsight, 
I can see my errors clearly, and I can tell you how I have 
learned from them.
    I can also assure you that I will bring to office the 
principle that has guided my career--that the Department of 
Justice first and foremost represents the people of the United 
States. Not any one President, not any political party, but the 
    I learned that principle in my first days at the 
Department, when I sent corrupt public officials from both 
parties to jail. It guided my work as U.S. Attorney for the 
District of Columbia when I prosecuted one of the most powerful 
members of my own party at the very time he held in his hands 
the top legislative initiative of my own President. And it 
guided my service as Deputy Attorney General when I recommended 
independent counsel investigations not just of members of the 
Cabinet, but of the very President who appointed me and in 
whose administration I proudly served.
    None of those calls was easy. But I made them because I 
believed they were the right decisions under the law. If 
confirmed as Attorney General, I pledge to you that this same 
principle will guide my service and inform every decision that 
I make.
    I have spent most of my career at the Department of 
Justice, and I cherish it as an institution. Its history, 
unmatched within the Federal Government. If I have the honor of 
serving as Attorney General, I will uphold the trust that you 
have placed in me. I will do so by ensuring that the Department 
is an instrument of our great Constitution, but more than that 
the servant of the American people.
    Thank you very much.
    [The prepared statement of Mr. Holder appears as a 
sumission for the record.]
    [The biographical information of Mr. Eric Holder, Jr., 














































































    Chairman Leahy. Thank you, Mr. Holder. We will have in the 
first round 10 minutes for questions.
    Waterboarding has been recognized to be torture since the 
time of the Spanish Inquisition. The United States had 
prosecuted American soldiers for using this technique early in 
the last century. They prosecuted Japanese soldiers for using 
it on Americans in World War II. But the two most recent 
nominees to serve as Attorneys General of the United States 
hedged on the question of waterboarding. They would not say 
that if an American were waterboarded by some other government 
or terrorist anywhere in the world whether it would be torture 
and illegal. They maintained that it would depend upon the 
    Do you agree with me that waterboarding is torture and 
    Mr. Holder. If you look at the history of the use of that 
technique used by the Khmer Rouge, used in the Inquisition, 
used by the Japanese and prosecuted by us as war crimes--we 
prosecuted our own soldiers for using it in Vietnam--I agree 
with you, Mr. Chairman, waterboarding is torture.
    Chairman Leahy. Do you believe that other world leaders 
would have the authority to authorize the torture of United 
States citizens if they deemed it necessary for their national 
    Mr. Holder. No, they would not. It would violate the 
international obligations that I think all civilized nations 
have agreed to, the Geneva Conventions.
    Chairman Leahy. Do you believe that the President of the 
United States has authority to exercise a Commander-in-Chief 
override and immunize acts of torture? I ask that because we 
did not get a satisfactory answer from former Attorney General 
Gonzales on that.
    Mr. Holder. Mr. Chairman, no one is above the law. The 
President has the constitutional obligation to faithfully 
execute the laws of the United States. There are obligations 
that we have as a result of treaties that we have signed, 
obligations obviously in the Constitution. Where Congress has 
passed a law, it is the obligation of the President or 
Commander-in-Chief to follow those laws.
    The President acts most forcefully and has his greatest 
power when he acts in a manner that is consistent with the 
congressional intent--consistent with congressional intentions 
and directives. If one looks at the various statutes that have 
been passed, it is my belief that the President does not have 
the power that you have indicated.
    Chairman Leahy. The reason I asked that, just yesterday 
here in the Washington Post you see it says, `` `Detainee 
tortured,' says U.S. official. Trial overseer cites abusive 
methods against 9/11 suspect.''
    Now, she said the convening authority for the military 
commissions, a top Bush administration official in charge of 
deciding whether to bring Guantanamo Bay detainees to trial 
wouldn't not refer an important case for trial because, as she 
said, we tortured the detainee involved. I am glad to see we 
now have a nominee for Attorney General who is unequivocal on 
    Now, one substantive criticism I have heard of your 
position on important issues stems from a brief you signed on 
to before the Supreme Court decided the case of District of 
Columbia v. Heller. The Supreme Court has now clarified the law 
in that area, and for those who may wonder, in the Heller case, 
the Court recognized the person right to bear arms guaranteed 
in the Second Amendment of the Constitution, expressly held for 
the first time that the Bill of Rights includes this right 
among its guarantees of individual liberty and freedom.
    As I have told you, Mr. Holder, I am a gun owner, as a very 
large percentage of people in my State of Vermont are. At my 
own home in Vermont, I enjoy target shooting. And before 
anybody asks, our nearest neighbor is over half a mile away, 
and it is our son.
    But do you accept and understand that the Second Amendment 
guarantees an individual right to bear arms?
    Mr. Holder. I understand that. The Supreme Court has 
spoken. The amicus brief that I signed on to recited the 
history of the Justice Department's positions that had been 
taken prior to the Heller decision; also expressed the belief 
in that amicus brief that was signed by a number of other 
Justice Department officials that it was our view, looking at 
the Second Amendment and looking at the applicable case law, 
that the Second Amendment did not confer an individual right.
    The reality is now that the Supreme Court has spoken, and 
that is now the law of the land. I respect the Supreme Court's 
discussion, and my actions as the Attorney General, should I be 
confirmed, will be guided by that Supreme Court decision.
    Chairman Leahy. Last year, for the first time in our 
history, this Committee reported media shield legislation, a 
bipartisan 15	4 vote in the Senate--in the Committee. This 
legislation provided a qualified privilege that allows 
journalists to maintain confidentiality of their sources, with 
reasonable exceptions, of course, to prevent terrorism and 
protect national security and personal safety.
    If you are confirmed as Attorney General, will you work 
with both Republicans and Democrats on this Committee on a 
Federal media shield law?
    Mr. Holder. Yes, I will, Mr. Chairman. It is my belief that 
a carefully crafted law to shield the press in the way that you 
have described is appropriate.
    Now, there are concerns that I am sure will be expressed by 
people in the Justice Department. I want to talk to the career 
folks in the Department. And I also want to ensure that with 
the passage of any law, we will still have the capacity to 
protect the national security and to prosecute any leaks of 
intelligence information that might occur.
    But with those caveats and with the ability to interact 
with people in the Department, I am in favor of the concept of 
such a law.
    Chairman Leahy. Now, you are very familiar with the Justice 
Department's Office of Legal Counsel. They are supposed to 
provide fair, impartial, independent legal advice for the 
executive branch. Now, the press reports and our own hearings 
have shown that it has been used most recently to advance 
extreme theories of Executive power. We have seen it in 
torture, warrantless wiretapping, and so on.
    Will you, if you are confirmed as Attorney General, commit 
to undertake a comprehensive review of all OLC opinions 
currently in effect and to correct and withdraw any that have 
what appear to be incorrect or problematic analyses? 
Understand, these opinions really carry a de facto weight of 
law throughout the executive branch.
    Mr. Holder. Yes, I will make that pledge. It is important 
that these OLC opinions, which are so important, as you 
describe, that they truly reflect what the law is, that they 
reflect our values. And I want to ensure that any OLC opinions 
that are in effect are consistent with those two purposes.
    I will do so respecting the fact that OLC respects the 
notion of stare decisis, that we don't change OLC opinions 
simply because a new administration takes over. The review that 
we would conduct would be a substantive one and will reflect 
the best opinions of probably the best lawyers in the 
Department as to where the law should be, what their opinion 
should be. It will not be a political process. It will be one 
based solely on our interpretation of the law.
    Chairman Leahy. Thank you.
    Now, some Senators, including commentators like Karl Rove, 
have spoken extensively about your role in the pardon of 
fugitive Marc Rich at the end of President Clinton's second 
term. In fact, I was very critical of that pardon at the time, 
notwithstanding the President's constitutional right to pardon 
people. I probably have been critical of a number of different 
Presidents' use of that constitutional right.
    You have also publicly said you wish you had handled the 
issue differently. Details of this matter have been 
exhaustively hashed out in several congressional hearings. The 
Congress has spent millions of dollars looking into this. You 
appeared voluntarily and repeatedly to testify on the matter, 
something we have not seen from officials of the current 
    So I want to give you a chance to address the suggestion by 
some that, based on your actions, you are not independent, that 
you will not be able to say no to a President who might 
nominate you. I have a two-part question to you. How do you 
respond to those who say that the Marc Rich pardon shows you do 
not have the character to be an independent Attorney General? 
And what did you learn from that experience?
    Mr. Holder. Well, as I indicated in my opening statement, I 
made mistakes, and my conduct, my actions in the Rich matter 
was a place where I made mistakes. I have never said anything 
other than that. I appeared before two congressional committees 
and said nothing but that. I have accepted the responsibility 
of making those mistakes. I have never tried to hide. I have 
never tried to blame anybody else. What I have always said was 
that given the opportunity to do it differently, I certainly 
would have.
    I should have made sure that everybody, all the prosecutors 
in that case were informed of what was going on. I made 
assumptions that turned out not to be true. I should have not 
spoken to the White House and expressed an opinion without 
knowing all of the facts with regard to that matter.
    That was and remains the most intense, most searing 
experience I have ever had as a lawyer. There were questions 
raised about me that I was not used to hearing. I have learned 
from that experience. I think that as perverse as this might 
sound, I will be a better Attorney General, should I be 
confirmed, having had the Marc Rich experience.
    I have learned that I have to ensure that there is full 
consultation with all the prosecutors who are involved in those 
kinds of matters. I cannot assume that that, in fact, will 
happen. I have to make sure that it happens.
    I think we have to work to improve the pardon process 
within the Department of Justice. It appears that at the end of 
every administration there seems to be a deterioration in the 
process. And so I think we have to work on the Justice 
Department side to make sure that the rules and regulations are 
    It was something that I think is not typical of the way in 
which I have conducted myself as a careful thoughtful lawyer. 
As I said, it is something where I made mistakes, and I learned 
from those mistakes.
    Chairman Leahy. And, of course, the pardon was issued by 
President Clinton, not by you. What I am going to do--and I 
have talked this over with Senator Specter. Obviously, Senator 
Specter is next. I will then recognize Senators by seniority 
back and forth in the usual way if they are here. If a Senator 
misses their turn, then they would be put in the next time they 
    Senator Specter.
    Senator Specter. Thank you, Mr. Chairman.
    Mr. Holder, pursuing the issue of the Rich pardon, you are 
a high-level professional, outstanding record, no doubt about 
your professional judgment, and the comment that it is a 
mistake is one way of approaching it. But when you take a look 
at the hard facts, it is a little hard for me to see how you 
came to the conclusion you did, even conceding the fact that 
none of us is perfect.
    In the Rich matter, he was charged with trading with the 
enemy. He reached a deal with the Khomeini regime during the 
Iranian hostage crisis to purchase Iranian oil in exchange for 
arms, automatic rifles, and hand-held rockets. He was involved 
in trading with Soviet and Iranian oil to the apartheid 
government, reprehensible apartheid government, in exchange for 
Namibian uranium, which was sold back to the Soviet Union; 
reportedly involved with Castro's efforts to escalate its 
nuclear war program in 1991, and with respect to a uranium 
deposit in western Cuba.
    He had contributed very large sums to the Democratic Party, 
$867,000; Clinton Library, $450,000; $63,000-plus to others. 
And in this context, the House Committee found that you 
recommended Jack Quinn, had told Jack Quinn, who is former 
White House Counsel, ``You do not have to provide a copy of the 
petition,'' and that he could go directly to the White House, 
which circumvented the normal pardon procedures. And you had 
the pardon attorneys opposed to it. Margaret Love said no.
    The House Committee came to these conclusions: The 
preponderance of the evidence indicates that Eric Holder was 
deliberately assisting Quinn with the Rich petition and 
deliberately got the rest of the Justice Department out of the 
process to help Quinn obtain the pardon for Marc Rich. This 
conclusion is supported by an e-mail sent by Quinn to Kitty 
Behan and others 3 days before Quinn's meeting with Holder on 
November 21st. And this is the confirmation e-mail. Subject: 
Eric. ``Spoke to him last evening. He says go straight to the 
White House. Also says timing is good. And''--s-h-d--``should 
get in soon. Will elaborate when we speak.''
    Now, I have had some experience with fugitives, and when 
you deal with a fugitive, it seems to me you focus on an 
extradition warrant. Given the background of this man, it is 
hard to brush it off, it seems to me, as a mistake. The guy had 
a reprehensible record. The guy was a fugitive. The indicators 
are, a House finding, that you were very heavily involved, and 
yet you testified you were only casually involved. A question 
of candor on that comment. And then you had a President who 
obviously wanted to grant a pardon.
    Now, if this were some underling or somebody who wasn't too 
bright, wasn't too experienced, I would slough it off as a 
mistake. But given your experience and your background and your 
competency and the surrounding circumstance of President 
Clinton looking for a cover, how do you explain it beyond 
simply it is a mistake?
    Mr. Holder. Well, I don't mean to minimize what I did by 
calling it a mistake or mistakes. And, in fact, I take what I 
did seriously and have expressed regret for what I did 
    I would not take as gospel everything that is contained in 
that House report, and we can certainly talk about the various 
things that they have said that I dispute.
    Senator Specter. Well, what do you disagree with?
    Mr. Holder. Well, for instance, this notion that I 
recommended Mr. Quinn to the gentleman I was sitting next to at 
a dinner. I mean, I think, first----
    Senator Specter. What did happen?
    Mr. Holder. Well, first, as a matter of fundamental 
fairness, I voluntarily appeared before that Committee and was 
never asked that question, and yet that appeared in the report. 
If you look at even the material that is contained in that 
report, you will see that after I supposedly made this 
recommendation to a person who I did not know--and according to 
the report, I said, ``You go hire a lawyer. That person comes 
to me, and we will work it out.''
    Now, I as Deputy Attorney General, according to this 
report, would have said to a perfect stranger, ``You come to me 
with a lawyer and we will work it out,'' I don't know what----
    Senator Specter. What happened as to Quinn? Okay, you 
weren't asked about it, but did you recommend Quinn? What are 
the facts aside from what the House says?
    Mr. Holder. I did not recommend Mr. Quinn. And, again, if 
you look at the report, you will see that the people who were 
trying to determine who a lawyer would be for Mr. Rich spent 6 
months, interviewed a whole host of people after this dinner 
that I attended before they decided on the representation. They 
interviewed a number of people in addition to Mr. Quinn before 
they made that decision.
    Senator Specter. Well, you refer to a dinner. There has 
been a report that at that dinner you pointed to Quinn as a 
person to represent Rich. Is that not true?
    Mr. Holder. That is not correct.
    Senator Specter. Well, what is correct?
    Mr. Holder. I had a conversation with a gentleman, and he 
asked about what happens if somebody has a problem with the 
Justice Department. And I think, as best I can remember, all I 
did was explain to him how the process worked, that there were 
levels of review, levels of appellate review, for lack of a 
better term, review within the Department. If somebody has an 
issue with somebody in the field, there are measures that you 
can take with a person in the field and that the Justice 
Department in Washington, D.C., has ultimate responsibility for 
the conduct of the Justice Department, including those parts of 
the Department that are in the field.
    Senator Specter. Are you saying that Quinn's name never 
came up?
    Mr. Holder. No, it did not. And if you look at the minority 
component of the report, there is some question as to whether 
or not the gentleman whose name I now remember, Mr. Kecks, even 
said what the majority says that he did say.
    Senator Specter. Is it true that you told Quinn after he 
was in the case that he did not have to provide you with a copy 
of the petition?
    Mr. Holder. No. I think if you are referring to Mr. Quinn's 
e-mail that says I told him to go straight to the White House, 
that did not occur.
    Senator Specter. No, there is a separate point, a separate 
point that Quinn testified to, that you said in response to his 
offer to provide a copy of the Rich pardon petition, that you 
said you didn't have to. Those are the issues as to whether 
anybody else in the Department would have known about it.
    Mr. Holder. I am sorry. Now I understand what you--yes. At 
a meeting that we had, I believe in November, Mr. Quinn 
indicated that that is what I told him after we had had a 
meeting on something else. I don't remember that conversation, 
but I have never disputed that I might have said that to Mr. 
Quinn, because I worked under the assumption--that was true--
that pardon applications that were filed in the White House 
were routinely sent to the Justice Department. The White House 
sent matters for pardons, referrals for pardons to the Justice 
Department, because they are supposed to originate with the 
pardon attorney at the Justice Department.
    Senator Specter. How do you explain this e-mail? And I 
acknowledge it is not your e-mail, but it is a contemporaneous 
e-mail which Quinn sent saying--corroborating at least as far 
as he is concerned, your statement, go directly to the White 
House, circumvent the Department of Justice. How do you explain 
    Mr. Holder. It is difficult for me to explain that. I never 
told Mr. Quinn to go straight to the White House. That would 
have been in some ways illogical given the fact that things 
that went to the White House would come to the Justice 
Department. In any case, I don't know what Mr. Quinn--where he 
got that from. I don't know if in a conversation I had with him 
he misinterpreted something that I said. But I never told him 
go straight to the White House with that pardon application.
    Senator Specter. Were you aware, Mr. Holder, of the 
atrocious record that Rich had in dealing with Khomeini and the 
Iranians and an apartheid nation and arms in exchange for oil 
and rockets? Were you aware of this kind of a record this man 
    Mr. Holder. No, I was not, and that was one of the mistakes 
that I made. I did not really acquaint myself with his record. 
I knew that the matter involved--it was a tax fraud case. It 
was a substantial tax fraud case. I knew that he was a 
fugitive. But I did not know a lot of the underlying facts that 
you have described. And as I said, that was a mistake.
    Senator Specter. One last question on this round.
    Chairman Leahy. I will give you extra time for that, but I 
am going to try to keep close to the time in this. Go ahead.
    Senator Specter. One last question. When the pardon 
Attorney, Margaret Love, said don't do it, did you ask her why 
she said that--which would have been an avenue to find out what 
an atrocious record this man had?
    Mr. Holder. Senator, with all due respect, Margaret Love 
was not the pardon attorney at the time that this matter was 
being considered, and the pardon attorney who was present at 
the time, Mr. Adams, never made--expressed an opinion about 
this, again, because he didn't have the material in front of 
    Senator Specter I will come back to this.
    Chairman Leahy. Thank you.
    Senator Kohl.
    Senator Kohl. Thank you, Mr. Chairman.
    Mr. Holder, you have been selected by the President-elect 
for a very important position, and for that you must be very 
grateful to him personally. But as we know, once you are 
confirmed, you will not be his lawyer but the American people's 
lawyer. Your role among Cabinet members is unique. Your first 
duty will be to the Constitution, to the rule of law, and not 
to the President.
    In the minds of many people, Attorney General Gonzales 
stepped over that line and was perceived too much as the 
President's lawyer and not the people's. One of your top 
priorities will be to restore the integrity of the Justice 
Department. Because of the U.S. Attorneys' firing and other 
scandals, the American people came to believe that the 
Department's activities from law enforcement to hiring were 
driven too much by politics.
    How can you assure the American people that you are the 
right person to restore the independence of the Justice 
Department, especially in light of the questions raised by your 
critics that you were not sufficiently independence of the 
White House in the Clinton administration?
    Mr. Holder. Senator, everything that I owe as a 
professional, I owe to the Department of Justice. It is an 
institution that I love. I came into the Department as a bright 
young lawyer, fresh young lawyer out of Columbia University 
into the Honors Program. I had the pleasure of working with the 
best lawyers, I think, in the world. I learned how to be a 
lawyer at the Justice Department.
    I understand that the Attorney General is different from 
every other Cabinet officer. Though I am a part of the 
President's team, I am not a part of the President's team in 
the way that any other Cabinet officer is. I have a special and 
unique responsibility. There has to be a distance between me 
and the President. The President-elect said when he nominated 
me that he recognized that, that the Attorney General was 
different from other Cabinet officers.
    I think if you look at my record, if you look at my career 
and the decisions that I have made, I have shown that I have 
the ability and, frankly, the guts to be independent of people 
who have put me in positions. President-elect Obama--President 
Obama is not, I expect, going to ask me to do anything that 
would compromise what I should be doing as Attorney General, 
but I want to assure you and the American people that I will be 
an independent Attorney General. I will be the people's lawyer.
    Senator Kohl. In light of what you just said, are you 
prepared, if some issue comes up that is a matter of basic 
constitutional principles that you differ with the President 
on, that you will resign your job?
    Mr. Holder. I do not think that that is a situation that I 
will face. We have a President-elect who is a brilliant 
constitutional lawyer, a person with a great moral compass, a 
person who I think will take criticism and advice. And I would 
think that if we had a constitutional problem as significant as 
the one that you are describing in your hypothetical, that we 
would somehow work it through.
    If, however, there were an issue that I thought were that 
significant that would compromise my ability to serve as 
Attorney General in the way that I have described that, as the 
people's lawyer, I would not hesitate to resign.
    Senator Kohl. Mr. Holder, for decades this country has been 
looked up to around the world for its unwavering commitment to 
human rights and the rule of law. There is a growing consensus 
that the detention center at Guantanamo Bay has tarnished that 
image. While the past two Attorneys General, the current 
Secretaries of Defense and State, and the President himself 
have publicly said that they would like to close Guantanamo, no 
steps as yet have been taken.
    Many of us were encouraged by press reports which suggest 
that a change will occur in this next administration. Shortly 
after taking office, the President-elect will reportedly issue 
an order to close the prison, but it does remain unclear how 
this will be done and how long it will take.
    Can you give us some indication about how you feel, what 
your priorities will be, how long you believe it will take, and 
what we will do with those detainees?
    Mr. Holder. Yes, Senator. Guantanamo will be closed. The 
President-elect during the campaign made that promise. Steps 
are being taken as we speak to look at the manner in which that 
can occur.
    I will tell you, this will not be an easy task. The 
physical closing of the facility is something that can be done 
relatively quickly. The question is what will we do with the 
people who are there now, roughly, I guess, 250 or so people.
    To responsibly close the facility, I think that we have to 
understand who these people are, make an independent judgment 
of who they are based on an examination of the records that 
exist down there, so that we can treat them in an appropriate 
way. I think substantial numbers of those people can be sent to 
other countries safely. Other people can be tried in a 
jurisdiction and put in jail. And there are possibly going to 
be other people who we are not going to be able to try for a 
variety of reasons, but who nevertheless are dangerous to this 
country. And we are going to have to try to figure out what we 
do with them.
    But I think that review that we will have to go through to 
figure out who these people are and in what categories they fit 
will take an extended period of time. And I think that is the 
thing that will prevent us from closing Guantanamo as quickly 
as I think we would like. But I want to assure the American 
people that Guantanamo will be closed.
    Senator Kohl. Mr. Holder, while the President and the Vice 
President have called them ``enhanced interrogation 
techniques'' or ``special measures,'' as the facts have leaked 
out, we now know that the White House authorized the abuse of 
prisoners in our custody. The administration admitted to using 
waterboarding, and press reports have suggested that sleep 
deprivation, extreme temperatures, and other abusive techniques 
have also been authorized.
    This administration, of course, has taken a different view 
with respect to their legality. They have maintained that they 
were advised by the Justice Department that all of the approved 
techniques were legal. They have had the backing of three 
Attorneys General. According to press reports, former Deputy 
Attorney General James Comey reportedly said that the 
administration would be ``ashamed'' when the world eventually 
learned of these legal opinions.
    Will you put an end to the use of abusive interrogation 
techniques? What is your description of what they are? What can 
we hope to expect from you?
    Mr. Holder. Our Justice Department will adhere to the 
values that have made this Nation great. It is the intention of 
the President-elect, it is my intention, to make sure that we 
have interrogation techniques that are consistent with who we 
are as Americans so that we don't do things that will serve as 
a recruiting tool for people who are our enemies.
    The decisions that were made by the prior administration 
were difficult ones. It is an easy thing in some ways to look 
back and in hindsight be critical of the decisions that they 
made. And yet having said that, the President-elect and I are, 
I think, both worried, disturbed by what we have seen, what we 
have heard.
    The pledge that he has made and that I will make is that we 
will make sure that the interrogation techniques that are 
sanctioned by the Justice Department are consistent with our 
treaty obligations, the Geneva treaty obligations that we have, 
and will be effective at the same time.
    One of the concerns that I have, as I have talked to 
generals and admirals who are responsible for interrogation 
techniques is what they have said is that some of these 
enhanced techniques do not necessarily produce good 
intelligence. And we want to make sure that whatever it is that 
we do produces intelligence that will be useful to us and help 
us in our fight against those who would do us harm.
    Senator Kohl. Thank you. One last question, and this 
relates to your ability to exercise your responsibilities 
independently of what the President may or may not like.
    He is reported, as you know, to have considerable skills as 
a basketball player, and you have indicated to me, when we met 
in my office, that you also are a person of considerable skill. 
In the event, Mr. Holder, that he invites you to the gym for a 
little one-on-one, will you promise us and the American people 
that you will do everything in your power to defeat him as 
badly as you can?
    Chairman Leahy. My vote depends on your answer.
    Mr. Holder. Senator Kohl, he is 10 years younger than me.
    Mr. Holder. He plays a lot more frequently than I do. 
Having said that, I got New York City game.
    Mr. Holder. I come from the city that produced Connie 
Hawkins, Kareem Adbul Jabar, Nate ``Tiny'' Archibald. I learned 
how to play ball in P.S. 127 in Queens. If you give me a little 
time and a little space to get back in shape, I think I could 
hang with him. I don't think I am ever going to be in a 
position to beat him, nor do I think that would be a wise thing 
to do.
    Senator Kohl. Well said, sir.
    Mr. Holder. Thank you.
    Chairman Leahy. I want you to know, Mr. Holder, I have been 
here 34 years in these hearings. That is the first time that 
question has ever been asked.
    Chairman Leahy. What we are going to do, I was going to 
break for 5 minutes at this point. Senator Kyl has, as we all 
do, different things he is supposed to be at, so to accommodate 
him, what we will do is we will do his round, and then we are 
going to break for about 5 minutes, then come back.
    Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman. If that is all right 
with you, Mr. Holder.
    Mr. Holder. Sure, that is fine.
    Senator Kyl. And, by the way, I think Herb may be just 
looking for some new talent for the Bucks.
    Senator Kyl. Be careful there.
    It is good to visit again, and I appreciated our discussion 
in which we discussed a wide range of issues. And as I 
mentioned at that meeting, one of the first things I would like 
to do is to just have you state for the record your views and 
commitments you made regarding a whole series of issues that we 
    The first one relates to DNA. As we discussed last 
December, the Justice Department published regulations that 
require Federal agencies to collect DNA samples from 
individuals who are arrested under Federal authority and from 
illegal immigrants who are being deported. The regulations 
require these agencies to collect DNA samples at the same time 
that they take fingerprints and mug shots. The Justice 
Department is charged with implementing and administering the 
new regulations. It is the Department's job to ensure that the 
DNA samples are collected and analyzed.
    Mr. Holder, if you are confirmed as Attorney General, will 
you see to it that the new DNA regulations are enforced and 
that DNA samples are collected and analyzed as required under 
the new rules? And will you seek sufficient resources to 
implement the regulations?
    Mr. Holder. Yes, I will, Senator. The collection of that 
evidence is, I think, critical for crime solving. The use of 
DNA evidence is often seen as a way in which people who are 
charged with crimes are absolved. And that certainly is a 
beneficial effect, but I think too often people forget that the 
collection of this evidence is a very important crime-fighting 
tool. And so I will support those regulations.
    I think as you indicated, it is entirely possible that one 
of the things that we are going to need are additional 
resources to make sure that we have the capacity, the ability 
to do that job in the way that Congress intended.
    Senator Kyl. And at least I will do my best to help to make 
sure Congress supports the resource requirements.
    Next, capital habeas. As you know, in 2005 Congress passed 
an amendment that will implement the opt-in system for a faster 
review of State capital cases in Federal courts. The amendment 
requires the U.S. Attorney General to review whether States are 
providing counsel to capital defendants with a review of the 
Attorney General's decision in the D.C. circuit court. The 
State of Arizona will probably be interested in submitting such 
a petition for review.
    If you are confirmed as Attorney General, will you review 
the State of Arizona's application in a timely manner and make 
a timely determination of whether Arizona is providing counsel 
to capital defendants and post-conviction relief?
    Mr. Holder. I will take my obligation seriously under those 
regulations and look at the evidence that the States provide 
with me that they have complied with the regulations. And to 
the extent the States do, I will give the relief that is 
dictated by those regulations.
    I want to make sure that, in fact, the resources in capital 
cases that the regulations call for are provided to defendants. 
But for States that actually do meet those requirements, I will 
check the necessary boxes.
    Senator Kyl. And what you stated I think is absolutely 
true. We are just interested that that does not drag on beyond 
the time that a normal review process would require.
    Next, we talked some about FISA. One of the amendments to 
FISA deals with the so-called lone wolf terrorists. These are 
individuals who are believed to be involved in international 
terrorism, but who we at least do not have any evidence that 
they are actually taking orders from a particular organization. 
And the provision was enacted specifically because of the FBI's 
previous inability to obtain a warrant to monitor Zacarias 
Moussaoui, the co-conspirator in the 9/11 plot who was arrested 
before the attacks, but who could not be searched pursuant to 
FISA because, despite his likely involvement in preparations 
for terrorism, agents could not link him to al Qaeda or any 
other group.
    The lone wolf provision needs to be reauthorized by the end 
of this year. Will you support reauthorization of FISA's lone 
wolf surveillance authority?
    Mr. Holder. I expect that I will. There are three 
provisions that are up for reauthorization. What I would like 
to do is examine how those provisions have worked, talk to 
people, investigators and lawyers, and get a sense of what it 
is they think has worked well with regard to those provisions, 
what perhaps needs to be changed.
    At least a couple of those provisions were contained in a 
proposal that President Clinton made back in the late 1990s, 
and I went before a couple of congressional committees seeking 
their institution, and one of them was one wolf, and the other 
had to do with roving surveillance. And so I would expect that 
with regard to those I would probably be supportive of them.
    Senator Kyl. And, in fact, let me just discuss this because 
we discussed all three, and these are the other two. One is the 
reauthorization of the PATRIOT Act's multi-point wiretap 
authority, and the other is reauthorization of Section 15 of 
the PATRIOT Act, which, when we discussed this, I neglected to 
note, although you are probably aware, that unlike the typical 
administrative subpoena, this requires a judicial approval 
before it is granted.
    First, with respect to the multi-point wiretap authority, 
would you support reauthorization of that?
    Mr. Holder. Again, I would like to have some interaction 
with the people who are responsible for the use of that tool, 
which is a very useful tool, and make sure they are satisfied 
with the way in which it is presently constructed. But I would 
expect that I would be able to support that.
    Senator Kyl. And with regard to Section 215 orders as well?
    Mr. Holder. That is one that I think has certainly 
generated more controversy, I believe, than the other two, and 
I think that the examination--the questions that I need to ask 
people in the field who have been using that, I would want to 
know as much as I possibly can. But as I said, the tools that 
we have been given by Congress in FISA are important ones, and 
so I would look at all three of these and make the 
determination as to whether or not I will be able to support 
them. But I would expect that I would.
    Senator Kyl. Let's see here. We also discussed the 
Operation Streamline--I tell you what. Before I ask that, we 
discussed the warrantless surveillance. Since that is somewhat 
related to this, you indicated that comments that you had made 
in a speech on June 13, 2008, were directed to the status of 
the law pre-FISA modifications from the legislative branch. 
When Congress later--I believe it was the next month--modified 
the FISA law, there was an explicit type of search that was 
provided allowing warrantless monitoring of suspected 
communications of international terrorists predicated on the 
principle that the Fourth Amendment gives greater leeway to 
intelligence investigations of foreign threats.
    Do you agree with that general principle? But, more 
importantly in the context of our conversation, do you believe 
the new law is constitutional? And if confirmed, will you 
support its enforcement?
    Mr. Holder. Yes, I believe that the law is constitutional. 
One of the things that I think is in some ways regrettable is 
that the program--that I have not been read into and I don't 
know all the dimensions of it. But as I understand it, that 
program is a very useful tool, is an essential tool for us in 
fighting terrorism.
    I think that what is unfortunate is that we could have had 
that tool congressionally sanctioned at a much earlier stage. I 
think that as we saw in the steel seizure concurrence of 
Justice Jackson, the President has his greatest power when he 
acts consistent with congressional directives. And I think that 
in this instance, that is instructive. Had the administration 
come to Congress and asked for that enhanced authority many 
years before, I have no doubt that Congress would have granted 
him that tool. Having done that, though, and having had 
Congress say that this is an appropriate thing to do, I think, 
as I said, that is a very useful tool and one that we will make 
great use of.
    Senator Kyl. We discussed in the context of illegal 
immigration an operation called ``Operation Streamline'' by the 
Border Patrol, and there is a Department of Justice aspect to 
this. Essentially, that has been utilized in two Border Patrol 
sectors. A third one is now underway. I specifically discussed 
the Yuma Border Sector, for example. This is a situation where 
repeat illegal border crossers are put in jail for 30 days. 
Sometimes it can be more if they have committed the crime over 
and over and over. And that has resulted in an extraordinary 
disincentive for them to try to cross illegally.
    In the Yuma Border Sector, for example, there has been a 
93-percent reduction in border apprehensions after just 2 
years, and much of that at least Border Patrol attributes to 
this policy of jailing the people for 30 days.
    However, as with so many of these other things, it requires 
resources, and in that regard, a lot of the resources fall on 
the Department of Justice side. I hope I have gotten it to you 
already, but I promised I would get you a letter from Judge 
John Roll, who is the chief judge for the Arizona District, in 
which he outlines some of the requirements for additional 
judges, magistrates, U.S. marshals, prosecutors, defense 
attorneys, as well as the hearing space and detention 
    And if you would like to address all of those things 
individually, fine, but just as a general proposition, if you 
are confirmed, will you support the appointment of the 
additional personnel and the resources for the items that I 
mentioned to try to continue to expand Operation Streamline for 
as long as we may need that along our Southern border in order 
to help deter illegal immigration?
    Mr. Holder. Yes, Senator, that was--I was not aware of that 
operation until you brought it to my attention during our 
meeting. I think it is actually a pretty interesting concept, 
and I think one that ought to be explored, and I would want to 
work with you all to see if it is something that can be 
    I think one component of it, at least as I understand it--
you can correct me if I am wrong--was that for an initial--the 
first time a person comes across, I don't think they are 
jailed. I think the person is warned--and then is put in jail 
the second time?
    Senator Kyl. It is after the first crossing. In other 
words, it is for repeat offenders.
    Mr. Holder. Repeat offenders. And I think that is something 
that is worth looking at.
    One of the things that has always worried me is that a 
disproportionate share of what is a national problem is borne 
by the States along our Southern border. Resources that need to 
be directed to what is, in essence, a national problem are too 
often not sent to the place where it is really needed--the 
State of Arizona and the other States along that border.
    So my commitment would be to try to work with you, as I 
think we have in the past, to try to determine what resources 
are necessary, what programs would be good to try to effect a 
reduction in the number of illegal immigrants who come across 
those borders.
    Senator Kyl. I appreciate that. I just introduced your good 
friend and colleague, Governor Janet Napolitano from Arizona, 
in the Department of Homeland Security hearing, and she and I 
have discussed this as well. So I look forward to the 
opportunity of working with both of you on trying to provide 
some additional deterrence to illegal border crossing.
    Chairman Leahy. Thank you. I might note my friend from 
Arizona has raised some good points. Some of them we will 
probably have hearings on, especially on renewal of 
legislation. I will work with Senator Kyl and Senators on both 
sides of the aisle on that, but especially on these immigration 
matters, Senators who are from border States. I see Senator 
Cornyn here and Senator Kyl, and Senator Feinstein was here a 
few minutes ago. I rely heavily on their own personal 
    Before we break, the Committee has received letters in 
support for Mr. Holder's nomination from numerous major 
national law enforcement and criminal justice organizations. 
And I am going to, without objection, put these letters into 
the record, including letters from the--and these are letters 
in support, Mr. Holder, of your confirmation, letters from the 
National Association of Police Organizations, the Fraternal 
Order of Police, the Federal Law Enforcement Officers 
Association, the National Association of Assistant U.S. 
Attorneys, the National Sheriffs Association, the American 
Probation and Parole Association, the International Association 
of Chiefs of Police, the International Union of Police 
Associations, the Major Cities Chiefs Association, the National 
Association of Blacks in Criminal Justice, the National 
Association of Drug Court Professionals, the National 
Association of Attorneys General, the National Black 
Prosecutors Association, the National Crime Prevention Council, 
the National Criminal Justice Association, the National 
District Attorneys Association--I noticed that especially as I 
was once Vice President of the National District Attorneys 
Association--the National Law Enforcement Officers Memorial 
Fund, the National Narcotic Officers Associations Coalition, 
the National Organization of Black Law Enforcement Executives, 
the National Organization of Police Officers, the National 
Troopers Coalition, the Police Executive Research Forum. I 
think one gets the drift of these.
    They will be placed in the record, and with that we will 
stand in a short recess.
    Mr. Holder. Thank you, Mr. Chairman.
    [Whereupon, at 11:16 a.m. the hearing was recessed.]
    AFTER RECESS [11:35 A.M.]
    Chairman Leahy. I am always hesitant to ask photographers 
to back off, but I am going to have to ask everybody to give us 
a little break here.
    You should also understand what is going on here. We do not 
have Senator Kennedy with us this morning. He is in Cabinet 
nominations before the Committee he chairs. I should note that 
he is not only a former Chairman, but he served on the 
Judiciary Committee longer than any Senator in the Nation's 
history. This is his 46th year of service on this Committee.
    Now, we are also missing Senator Biden, who made his 
valedictory address to the Senate this morning. We told Senator 
Biden, another former Chairman of this Committee, that we did 
not mind him taking a drop down in position to become Vice 
President. But we do miss him.
    And the next person we are going to hear from is Senator 
Feinstein, the senior Senator from California. She is also the 
new Chair of the Senate Select Committee on Intelligence, and 
she is a very good friend of all of ours. Senator Feinstein the 
floor is yours.
    Senator Feinstein. Thank you very much, Mr. Chairman. And 
welcome, Mr. Holder.
    Mr. Holder. Good morning.
    Senator Feinstein. I hope shortly we will be calling you 
``Attorney General Holder.'' I would like to begin with 
something internal to the Department. I want to ask you a quick 
question on Guantanamo. If it is not something you can answer--
    Chairman Leahy. If the Senator could hold just a moment and 
see if we can get rid of that feedback, and we will start the 
clock again.
    Senator Feinstein. And about the use of contractors in 
carrying out interrogation techniques.
    But let me begin with this: The Inspector General of the 
Department of Justice has over the past year put out four 
different reports which really revealed substantial 
politicization of the Department of Justice. The latest one 
just came out on January 13th. It was an investigation of 
allegations of politicized hiring and other improper personnel 
actions in the Civil Rights Division.
    It points out that a Bradley Schlozman, a political 
appointee in the Civil Rights Division, had been screening 
applicants for career positions based on their political 
beliefs and had been removing ``disloyal'' lawyers from 
sections in the Department to make way for ``real Americans.''
    The report also found that Schlozman made false statements 
in sworn testimony to this Committee, namely, in direct 
response to questions the Chairman put to him, a question that 
I put to him, and a question that Senator Schumer put to him.
    My question is: Have you read this report? And if so, what 
actions can you take to follow up on it?
    Mr. Holder. I have not had a chance to read the report, 
Senator, and yet I have read the news accounts of it. What is 
contained in the report is very disturbing. The notion that the 
Justice Department would ever take into account a person's 
political affiliation or political beliefs in making hiring 
decisions is antithetical to everything that the Department 
stands for and everything that I am familiar with. I served 
very proudly in the Justice Department under Republican 
Attorneys General, Democratic Attorneys General, and there was 
never a thought given to what your party affiliation was, what 
your political beliefs were in hiring, in promotion decisions.
    What we have seen in that report I think is aberrant, but 
it is also, I think, one of the major tasks the next Attorney 
General is going to have to do. You have to reverse that.
    Senator Feinstein. Well, this documents clear lying to this 
Committee, and I believe that that is a violation of law. And I 
would hope that the Justice Department would take action, 
however you do it. I don't think we can do nothing to someone 
representing the Government who comes before us and lies.
    Mr. Holder. Yes, I understand that prosecutors in the U.S. 
Attorney's Office in D.C.--again, just based on the press 
reports--actually reviewed the report and have made a 
prosecutive determination. If I am fortunate enough to be 
confirmed as Attorney General, I will indicate to you that I 
will review that determination. I don't know all the facts of 
the case, but given the findings in the Inspector General's 
report that are consistent with what you have said, I want to 
know why the determination was made not to pursue charges, 
criminal charges.
    Senator Feinstein. Thank you very much.
    I listened carefully to your answers to Senator Kohl's 
question about Guantanamo. I also read the speech that you made 
in the middle of 2008 where you very clearly stated that it 
should be closed, and here you said it will be closed. Let me 
ask these questions about that.
    Do you believe military commissions are sufficient to 
prosecute detainees who have been declared enemy combatants and 
pose a danger to the national security of the United States?
    Mr. Holder. I don't think that the military commissions 
that we now have in place have all of the due process 
requirements that I would like to see contained in them. We 
have to come up with a system that will deal with those three 
categories of people that I described that I believe are 
contained at Guantanamo: those who I think we can safely 
repatriate to other countries, those who we can try, and then 
deal with those who perhaps are too dangerous, but nevertheless 
cannot be tried.
    In trying to deal with those detainees who we will try, I 
think we have to examine what tools will be available to us, 
what forums will be available to us--Article III courts, 
military courts. The possibility exists, I suppose, that we 
could use military commissions, but they would have to be, I 
think, substantially revamped to provide the due process rights 
that I think are consistent with who we are as Americans.
    Senator Feinstein. Well, let me just discuss this with you. 
Assuming Guantanamo is closed--and one of the big criticisms of 
Guantanamo has been that it is a hypocritical situation. One 
set of laws applies to people at Guantanamo and another set of 
laws in the United States. So assuming that the 80 or so--well, 
however many detainees need to be relocated can be relocated, 
we have checked with military and Federal super-max and max 
prisons and believe there is space for them. And they come to 
the United States. You would assume they would fall under 
regular Federal law. Do you agree with that?
    Mr. Holder. I think we want to leave our options open. I 
don't know exactly what system we would put in place or what 
system we would utilize in order to try those people. This is 
something that, even as we speak, we are trying to work through 
as an administration in anticipation of President-elect Obama 
becoming President Obama.
    But the one thing I can assure you and the American 
people--and, frankly, the world--is that whatever system we 
use, it will be consistent with our values; it will be a system 
that has due process guarantees; it will be seen as fair.
    Senator Feinstein. Some of us--Senator Whitehouse, myself, 
other Senators--have just introduced a bill that is in the 
Intelligence Committee which would close Guantanamo within 12 
months, which would essentially provide for a single standard 
for interrogation across the United States Government, namely, 
the Army Field Manual, and prohibit the use of contractors 
doing interrogation.
    Let me ask you about the Army Field Manual. As you know, it 
has been revised by the military. It is a comprehensive, 
thoughtful manual. It has more than a dozen different 
techniques. It is supported across the United States military 
and by about 30 retired generals as being an adequate standard 
for the United States to use.
    Do you believe that the Army Field Manual should comprise 
the standard for interrogation across the United States 
    Mr. Holder. Well, I have been impressed in my interactions 
with those generals and admirals, as they have discussed what 
they are allowed to do under the terms of the Army Field Manual 
and how they don't think that the inability to do these 
enhanced interrogation techniques has in any way had a negative 
impact on, they think, their ability to get good intelligence.
    So my view is that I think starting with what we have in 
the Army Field Manual, I think that is a good place for us to 
start. I personally think that the techniques that are outlined 
there are consistent with what we are supposed to do under 
Common Article III and the other parts of the Geneva 
Convention. And I am not convinced at all that if we restrict 
ourselves to the Army Field Manual that we will in any way be 
less effective in the interrogation that we do of people who 
have sworn to do us harm.
    This is something that the President-elect is considering 
now and is giving all components an opportunity to express 
their views, not only the military but those on the 
intelligence side. If there is a contrary view, we want to give 
them an opportunity to make their case. But it is my view, 
based on what I have had and the opportunity to review and what 
I have been exposed to, that I think the Army Field Manual is 
    Senator Feinstein. Currently, all interrogation is done by 
contractors. CIA interrogation is done by contractors. And I 
wrote a letter to General Mukasey in the early part of last 
year challenging this, because all inherently governmental 
activities under the law should be carried out by Government 
employees. He wrote back saying that these contractors were not 
covered under that section of the law.
    I have a real issue with this. Have you had an opportunity 
to look at that? And can you comment?
    Mr. Holder. I am not up to speed on that, but let me say 
this: The concern that you express I think is a very legitimate 
one. I think across the board, and especially when it comes to 
law enforcement functions interpreted pretty broadly, you want 
to have employees of our Government who are conducting and 
doing law enforcement activities. This is not something that 
you want to farm out, that you want to give to people who are 
not sworn. It does not mean that these people cannot be trained 
and everything, but I think that when it comes to core law 
enforcement responsibilities--and interrogation, I would think, 
would be one of those--I would like to, to the extent that it 
is possible, restrict that.
    Senator Feinstein. There is----
    Chairman Leahy. Thank you.
    Senator Feinstein. Oh, my time is up. So short. Thank you, 
Mr. Holder.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Feinstein. And I am 
going to recognize next the senior Senator from Utah, Senator 
Hatch, who is a long-time friend. We have served here for 
decades, and he is also a former Chairman of the Committee, 
been a consistent supporter of the work of the Department of 
Justice. Senator Hatch, it is yours.
    Senator Hatch. Well, thank you, Mr. Chairman. 
Congratulations, Mr. Holder, on this appointment, and welcome 
back to the Judiciary Committee. This is the fourth time that 
you have come to the Senate for confirmation, so far without a 
single negative vote. We will just have to see if that 
continues, that trend.
    Now, candidly, there are some real issues and concerns, as 
you know. We have chatted about them, and you are chatting 
about them here. And I say that as someone who has said that I 
am inclined to support your nomination.
    Now, in a speech last year, you stated, ``I never thought I 
would see that a President would act in direct defiance of 
Federal law by authorizing warrantless NSA surveillance of 
American citizens. This disrespect for the law is not only 
wrong, it is destructive in our struggle against terrorism.''
    Now, do you believe that the President, whoever is 
President of the United States, has inherent authority under 
Article II of the Constitution to engage in warrantless foreign 
intelligence surveillance? Or in your opinion, does FISA trump 
Article II?
    Mr. Holder. Senator, no one is above the law. The President 
has the constitutional obligation to make sure that the laws 
are faithfully executed. In rare instances where Congress 
passes a law that is obviously unconstitutional--if, for 
instance, Congress were to pass a law that the Secretary of 
Defense should be the Commander-in-Chief or that women would 
not have the right to vote--I think that the President in that 
instance would have the ability to act contrary to a 
congressional dictate.
    But the President has his power at its maximum, at its 
zenith, when he acts consistent with congressional direction. 
And when it comes to the FISA statute, there is an exclusivity 
provision in the FISA Act that essentially says, as Congress 
has expressed, this is the exclusive way in which that kind of 
surveillance should occur.
    My speech was taking the administration to task for not 
following the dictates of FISA. As I indicated, I think, in 
response to a previous question, I think that had the 
administration worked with Congress, as we are pledging to do, 
that tool, that very valuable tool--very valuable tool--could 
have been in the arsenal of the administration without any 
question about its legality.
    Senator Hatch. How do you reconcile your analysis of the 
Terrorist Surveillance Program with the longstanding precedents 
of Truong and Keith, the Foreign Intelligence Surveillance 
Court reviews decision in the In Re: Sealed case, and the 
recent Second Circuit decision in the Wadi al Haj case?
    Mr. Holder. Senator, I can't hear you too well.
    Senator Hatch. The recent Second Circuit decision in the 
Wadi al Haj case, I think it is.
    Mr. Holder. I am sorry, Senator. I didn't hear the whole 
    Senator Hatch. Well, I asked you how do you reconcile--
maybe I can pull this thing close. How do reconcile your 
analysis of the TSP, Terrorist Surveillance Program, with these 
longstanding precedents from Truong, Keith, In re: Sealed, and 
the Wadi al Haj case?
    Mr. Holder. Well, Senator, it is my belief that the statute 
lays out the means by which the President has the power, the 
executive branch has the power to do that type of surveillance. 
It is, as I said, a very valuable tool. It is one that sets out 
very explicitly the means by which this can be done.
    It seems to me that it is incumbent upon anybody in the 
executive branch who is engaged in that kind of surveillance to 
be mindful of the dictates of FISA and then to perform in that 
    Senator Hatch. Well, let me just ask this question: As a 
former Deputy Attorney General during the Clinton 
administration, were you part of the decisionmaking process at 
DOJ that authorized the warrantless search of the residence of 
the spy Aldrich Ames, a U.S. citizen, in 1993? Do you believe 
that search at that time was illegal?
    Mr. Holder. Senator, I don't know all the circumstances 
under which that occurred. I was not at Main Justice in 1993. I 
was the U.S. Attorney in D.C., so I did not participate in 
1993--if that is when it occurred, I didn't participate in that 
decision. And I am not familiar with all that might have 
happened. I don't know whether there were exigent 
circumstances. I don't know exactly what happened in connection 
with that.
    Senator Hatch. Okay. But back to our prior point, is the 
President's inherent authority under the Constitution, can that 
be limited by a statute?
    Mr. Holder. The President's inherent authority.
    Senator Hatch. Right.
    Mr. Holder. Well, it is----
    Senator Hatch. I mean, you are relying on the statute as 
though that is binding on Article II of the Constitution.
    Mr. Holder. Well, the President obviously has powers under 
the Constitution that cannot be infringed by the legislative 
branch. That is what I was saying earlier. There are powers 
that the President has and that have been delegated to him, or 
that he has, and in the absence--Congress does not have the 
ability to say with regard to those powers you cannot exercise 
    There is always a tension in trying to decide where that 
balance is struck, and I think we see the best result when we 
see Congress interacting with the President, the executive 
branch interacting with the legislative branch, and coming up 
with solutions----
    Senator Hatch. All right. But that still does not negate 
the fact that the President may have inherent powers under 
Article II that even a statute cannot bury.
    Mr. Holder. Well, sure. The----
    Senator Hatch. Do you agree with that statement?
    Mr. Holder. Yes. There are certain things that the 
President has the constitutional right, authority to do that 
the legislative branch cannot impinge upon.
    Senator Hatch. Okay. Now, the FISA Amendments Act of 2008 
included important civil liability protections for those 
providers who assisted the Government with the Terrorist 
Surveillance Program in the aftermath of the September 11th 
terrorist attacks.
    Now, according to this Act, in order for the liability 
protections to apply, the Attorney General must first file a 
certification with the court.
    Now, last fall, Attorney General Mukasey filed the 
appropriate certifications with the court. You are aware of 
    Mr. Holder. Yes.
    Senator Hatch. Okay. Now, do you believe that those private 
partners who assisted the Government should be given civil 
liability protection?
    Mr. Holder. Well, that is now contained in a statute. The 
duty of the Justice Department is to defend statutes that have 
been passed by Congress, unless there is some very compelling 
reason not to. President-elect Obama was against the immunity 
that was granted to those ISPs, Internet service providers, but 
nevertheless voted for the statute that contained that 
immunity. It would seem to me that unless there are compelling 
reasons, even given the opposition, unless there are compelling 
reasons, I would not--I don't think that we would reverse 
    Senator Hatch. Okay. So if confirmed as Attorney General, 
you will honor the certifications by Attorney General Mukasey.
    Mr. Holder. Yes, I believe that we would. Obviously, we 
have to look at if there are changed circumstances, if there is 
some basis to change that determination. But in the absence of 
that, I don't think we would.
    Senator Hatch. Thank you.
    There have been numerous calls for prosecutor of various 
individuals ranging from the Vice President to attorneys at the 
Office of Legal Counsel for their support or approval of the 
Terrorist Surveillance Program and the CIA's interrogation and 
detention program. Now, if confirmed as the Attorney General, 
do you intend to undertake, order, or support a criminal 
investigation of those individuals, including those individuals 
at the Office of Legal Counsel, who are involved in drafting 
legal opinions on these matters? Or are you willing to 
acknowledge that there can be differences of opinion but they 
acted in accordance with their best good-faith efforts under 
the circumstances at the time?
    Mr. Holder. Well, Senator, no one is above the law, and----
    Senator Hatch. We all agree with that.
    Mr. Holder. We will follow the evidence, the facts, the 
law, and let that take us where it should. But I think 
President-elect Obama has said it well. We don't want to 
criminalize policy differences that might exist between the 
outgoing administration and the administration that is about to 
take over. We don't want to do that.
    Senator Hatch. Would you consider these policy differences 
or policy decisions?
    Mr. Holder. Well, one of the things I am going to have to 
do is to become more familiar with what happened that led to 
the implementation of these policies. I have not been read into 
a variety of things that I will be exposed to, should I become 
Attorney General, and that would, I think, better inform any 
decision that I would make in that regard.
    Senator Hatch. Okay. Let me just switch the subject for--I 
have got just another 40 seconds--and explore your position--
well, let me just start with this: I want to ask you about the 
constitutional right to keep and bear arms. As you know, that 
is a matter of great concern. I have always been baffled by 
those who claim they see rights that are not in the 
Constitution at all, but cannot seem to see the rights that 
actually are expressly written there.
    You have in the past, both as Deputy Attorney General and a 
private citizen, stated your belief that the Second Amendment 
confers only a collective right to keep and bear arms rather 
than an individual right. Last year, you signed a friend-of-
the-court brief that took this position before the Supreme 
Court in the District of Columbia v. Heller case. Now, the 
Supreme Court rejected that position and held that the Second 
Amendment right to keep and bear arms is an individual right.
    In this hearing, who is right--you or the Supreme Court?
    Mr. Holder. In the ball game that we----
    Senator Hatch. That sounds like an unfair question.
    Mr. Holder. No, no. In the ball game that we call our 
judicial system, the Supreme Court gets to be the umpire. They 
call the balls and strikes. They made the determination that 
the Second Amendment conferred an individual right. I will 
obviously respect that, and any actions I take as Attorney 
General will take that into account.
    Senator Hatch. The question I have, then, were they 
correct, the Supreme Court?
    Mr. Holder. Well, you know, I will say that I think based 
on Justice Department precedent, there was a good argument to 
be made in the amicus brief that we submitted. But I think it 
is one I think lawyers can disagree on, and five Justices of 
the Supreme Court have indicated what the Second Amendment is 
and so, yes, they are right.
    Senator Hatch. Thank you so much.
    Thanks, Mr. Chairman. I appreciate it.
    Chairman Leahy. Thank you very much, Senator Hatch.
    Before I recognize Senator Feingold, I have been trying to 
put these letters into the record. I mentioned the letters of 
support from 130 law enforcement and criminal justice 
organizations, civil rights organizations, victims' advocates, 
legal practitioners, and others.
    I will now put into the record letters from several former 
officials, including a letter from the Attorney General, the 
Republican Attorney General under George H.W. Bush, William 
Barr, in support of you, and the Assistant Attorney General for 
the Office of Legal Counsel under President Reagan, and then 
Solicitor General under President George W. Bush, Ted Olsen; a 
former U.S. Attorney, a Republican Congressman, Under Secretary 
for Homeland Security in the Bush administration, Asa 
Hutchinson; Republican former Congressman Bob Barr; two former 
Deputy Attorneys General under President George W. Bush, Jim 
Comey and Larry Thompson; a letter from former Federal judge 
and FBI Director Louis Freeh, who was here earlier today; and 
then a number of other high-ranking Republican Senate staffers 
and executive branch officials. Without objection, those 
letters will be made part of the record.
    Senator Feingold is the Chair of our Constitution 
Subcommittee. Senator Feingold, I yield to you.
    Senator Feingold. Thank you so much, Mr. Chairman. Mr. 
Holder, welcome. Congratulations on your nomination. I 
certainly appreciated your meeting with me on short notice a 
few weeks ago, and I look forward to many more fruitful 
discussions of the important issues facing the Department 
should you be confirmed. And I would like to start with a topic 
that we discussed then and that you were just talking to 
Senator Hatch about.
    As you know, I have been very concerned about the extreme 
and wrong-headed legal theories that the outgoing 
administration came up with to justify assertions of executive 
power beyond what the Constitution allows. These theories were 
developed by lawyers operating from the Department of Justice 
in cooperation with lawyers from the White House Counsel's 
Office and the Office of the Vice President. They were used to 
justify actions by the executive branch, particularly in the 
areas of torture and warrantless surveillance, that I believe 
were illegal and inexcusable. I voted against the confirmations 
of Alberto Gonzales and Michael Mukasey because their answers 
on this key question of respect for the rule of law were so 
    So one of the things I am looking for from you is a clear 
indication that the new administration and your Department of 
Justice will make an unmistakable break from the past when it 
comes to these issues. And I already heard you make the 
statement that those gentlemen did not make, which is that the 
President is not above the law. So I will ask you the same 
question I asked Mr. Gonzales.
    First, what is your view of the President's constitutional 
authority to authorize violations of the criminal law, duly 
enacted statutes that may have been on the books for many 
years, when acting as Commander-in-Chief?
    Mr. Holder. The President, as I have said, is not above the 
law, has a constitutional obligation to follow the law and 
execute the laws that this Congress passes. If you look at the 
steel seizure concurrence of Justice Jackson, that I think sets 
out in really wonderful form the power that the President has 
and where the President's power is strongest and where it is 
weakest. It is weakest in Category 3, where Congress has 
indicated something contrary to what the President wants to do. 
That is where Justice Jackson says the President's power is at 
its lowest exhibit. And I think--I am not a constitutional 
scholar, but I think that there has never been a President who 
has been upheld when he has tried to act in Category 3. I think 
but I am not----
    Senator Feingold. I believe that is right, and I want to 
follow that using the construct of Justice Jackson. More 
specifically, does the President, in your opinion, have the 
authority acting as Commander-in-Chief to authorize warrantless 
searches of Americans' homes and wiretaps of their 
conversations in violation of the criminal and foreign 
intelligence statutes of this country?
    Mr. Holder. I think you are then getting into Category 3 
behavior by the President. Justice Jackson did not say that the 
President did not have any ability to act in Category 3, 
although, as I said, I am not sure there has ever been an 
instance where the courts have said that the President did act 
appropriately in that category. It seems to me it is difficult 
to imagine a set of circumstances, given the hypothetical that 
you have used and given the statutes that you have referenced, 
that the President would be acting in an appropriate way given 
the Jackson construct, which I think is a good one.
    Senator Feingold. So you see FISA law as under Category 3, 
    Mr. Holder. Yes, I think the FISA law, it is a good 
statute, and it has an exclusivity provision that seems to me 
to be pretty clear.
    Senator Feingold. You discussed with Senator Hatch whether 
or not there was some kind of independent, inherent power of 
the President. Is there anything in the FISA statute that makes 
you believe that the President has the ability under some other 
inherent power to disregard the FISA statute?
    Mr. Holder. No, I do not see that in the FISA statute.
    Senator Feingold. Well, thank you. I think that is a very 
important break in favor of the rule of law that we have been 
waiting for in this country for many years. And I appreciate 
that answer.
    As I am sure you know, Congress will consider legislation 
this year to reauthorize an expiring provision of the USA 
PATRIOT Act. You were talking with Senator Kyl about that. 
Unfortunately, the last time Congress considered reauthorizing 
the PATRIOT Act, the administration used scare tactics and 
over-the-top rhetoric to discount the legitimate concerns 
raised by both Democrats and Republicans in Congress. And I 
have to say the administration seemed more interested in 
scoring political points than trying to sit down and find some 
common ground on some of these provisions, where we all want to 
stop those who intend to harm us, but not affect the rights of 
completely innocent Americans.
    I hope to work with you in a productive way on legitimate 
concerns that I and others in the Senate have about the extent 
of Government's surveillance powers. In fact, I believe you 
joined a bipartisan letter in the summer of 2005 proposing a 
number of changes to the PATRIOT Act. I appreciate what you 
said in response to Senator Kyl about needing to hear from 
professionals who use these authorities. It is important to 
hear from experts and advocates concerned about these 
authorities and how they affect the privacy and civil liberties 
of innocent Americans.
    So in light of that, will you commit to work with us on 
these issues, to keep the lines of communications open at all 
times, and to try to resolve any differences as partners who 
have the same ultimate goal--to protect the American people and 
the constitutional rights of our citizens?
    Mr. Holder. Absolutely, Senator. I will be here as often as 
I can, either in formal settings or informal ones, to talk 
about the needs that I identify that we have in law enforcement 
in fighting terrorism.
    I think we are going to need law enforcement tools. We need 
to always look at them to make sure that they are consistent 
with the obligations that we have, the new challenges that we 
face. But we always have to be mindful of the fact that there 
is a civil liberties component to this, and we have to make 
sure that we understand, as I have said in many speeches, that 
there is not a tension between respecting our great tradition 
of civil liberties and having very effective law enforcement 
and anti-terror tools.
    There is a false choice, I think, that is often presented, 
so I would look forward to working with you and the other 
members of the Committee in trying to make sure that we have 
good, effective laws that are consistent with our values.
    Senator Feingold. Thank you for that answer.
    As you know, there was much about last year's FISA 
Amendments Act with which I strongly disagreed, and that 
included, of course, the granting of immunity to 
telecommunications companies that allegedly cooperated with the 
President's warrantless wiretapping program, and the inclusion 
of new surveillance powers without adequate protection for the 
rights and privacies of innocent Americans.
    But one positive provision was a requirement that the 
Department of Justice Inspector General, in cooperation with 
other relevant Inspectors General, undertake a comprehensive 
review of the warrantless wiretap program. And I am told the 
IG's report is due to be completed by July of this year. This 
report could offer the most complete assessment to date of how 
the program came about and operated for over 5 years.
    Will you pledge the full cooperation of the Department of 
Justice with this effort? And will you pledge to support making 
as much of the report public as possible so that the American 
people can finally learn the full story of this illegal 
    Mr. Holder. Absolutely. I think the report that will be 
done by the Inspectors General and led by a fine Inspector 
General at the Department of Justice will be an important tool, 
an important assessment tool for us to find out how these 
statutes have been working, how these provisions have been 
working. I know that Glenn Fine and the people working with him 
will not be shy in expressing any concerns that the have, but 
they will also not be shy to tell us how these tools have been 
    I think that that is going to be a good starting point for 
a conversation that I think we need to have about where we 
stand with regard to the state of the law and give us a good 
sense of are we in a good place, are there things that we need 
to change. So I look forward to that report, and I will do all 
that I can to ensure that as much of that is made public as is 
    Senator Feingold. Thanks. Your testimony recognizes the 
importance of restoring the credibility of the Department of 
Justice after the terrible issues involving the stewardship of 
Mr. Gonzales, and you correctly note that despite the steps in 
the right direction taken by Attorney General Mukasey, there is 
more work to be done. Certainly the release this week of the 
OPR IG report on politicized hiring and other personnel actions 
at the Civil Rights Division only underscores that point.
    As with so many of the mistakes and abuses of the last 
administration, I don't think it is enough to just end the 
misconduct. The lingering effects of that misconduct must also 
be addressed. So whether it is politicized hiring in the Civil 
Rights Division or for immigration judges or allegations of 
politically motivated prosecutions as in the Siegelman case--
and there may still be many more--what will you do to make sure 
that justice is truly served and that those who engaged in 
wrongdoing do not, in effect, have the last laugh? And, in 
addition, will you cooperate in any further oversight of these 
matters by the Congress, especially with respect to documents 
that have until now been withheld?
    Mr. Holder. Well, one of the things I am going to have to 
do, I think, as Attorney General in short order is to make--
basically do a damage assessment and understand in a way that I 
do not now how has the institution been harmed by the 
activities that were uncovered by these Inspector General 
reports. What has been the lasting impact? There has certainly 
been damage to the Department's reputation. I want to know as a 
result of those action has there been any structural damage to 
the Department.
    I will work to make that assessment. I will be more than 
glad to come back to this Committee and share with you what I 
have found and perhaps with some suggestions that I might work 
out with you all how we might prevent those kinds of things 
from happening in the future. I look forward to working with 
you in that regard.
    Senator Feingold. What about the documents?
    Mr. Holder. To the extent that there are documents that 
will help this Committee in that assessment, and to the extent 
that there is not a reason why we should be holding onto them, 
I will make them available, always with the presumption that, 
you know, transparency is the best thing and making available 
documents makes the most sense.
    There are institutional concerns that we have that I think 
should be respected. But I also respect the oversight 
obligations that this Committee has, and to the extent that I 
can make documents available in this context or in others, I 
will do that.
    Senator Feingold. Thank you, Mr. Holder.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you. Thank you very much, Senator.
    Senator Sessions is here. Of course, Senator Sessions is 
also a former U.S. Attorney and knows what one goes through in 
that regard, and we have relied on him for that experience.
    Senator Sessions, it is over to you.
    Senator Sessions. Thank you, Mr. Chairman, and 
congratulations, Mr. Holder, on the nomination. You certainly 
bring excellent background and experience to the job as a 
Federal prosecutor for a number of years and as a Federal 
judge. I think you come to the office with far more experience 
than Attorney General Gonzales had. I thought he was a good 
man, but when you lack experience, sometimes you can make 
errors unintentionally. I think former Attorney General Janet 
Reno was a State prosecutor, but was really inexperienced in a 
lot of the big issues that come before an Attorney General.
    So you do have the background. You have a great family. It 
is good to see your wife, a fine physician and an Alabamian, 
and the sister of one of the leading persons in changing the 
racial situation in the South, as she led the fight to alter 
the segregated higher education policies that were so often 
conducted in the South, and those were unacceptable, and she 
did a very important historic--played a big historic role in 
that and is so recognized today.
    So I know you are committed to justice and fairness and 
equal rights. I just want to ask a few things. You have had a 
lot of questions so far about national security. In your 
opening statement, you said, ``I will use every available 
tactic to defeat our adversaries.'' That is basically what 
President Bush says. ``I am charged with defending this 
republic. I am going to use whatever power I can.'' And then 
you go on to say, ``And I will do so within the letter and the 
spirit of the Constitution.''
    Well, first of all, fundamentally, isn't the controlling 
authority the constitutional requirements first? Would you 
agree, what the Constitution actually requires is the 
fundamental requirement of public service?
    Mr. Holder. I am sorry, the Constitution requires?
    Senator Sessions. What the Constitution requires is what 
you are committed to do. Is that not correct?
    Mr. Holder. That is correct.
    Senator Sessions. Now, the only thing that worries me about 
the spirit of the Constitution is that the spirit tends to be 
in the eye of the beholder, and that what you might think is 
the spirit of the Constitution, somebody else might not. And I 
guess I am worrying about these intelligence officers and 
military officers and people in the Department of Defense who 
attempted to protect and defend this country at a time of great 
concern after the 9/11 attacks. And if you formed a prosecution 
policy, you would want it to be based on the plain law of the 
Constitution, not what somebody might think is within the 
spirit of the Constitution. Would you not?
    Mr. Holder. Well, Senator, as you know, having been a 
prosecutor and a great U.S. Attorney yourself, there are a 
whole variety of things that have to go into making a 
prosecutive determination: What was that person's intent? Did 
that person act under the thought that he or she had 
authorization from a higher authority? These are all the kinds 
of things that would have to be weighed in trying to make the 
determination whether somebody had acted appropriately, 
inappropriately, lawfully, or unlawfully. Those are the kinds 
of things that would have to be weighed.
    Senator Sessions. I certainly agree with that. I do just 
note that in your June 2008 speech to the American Constitution 
Society, you say that actions after 9/11 were excessive and 
unlawful. Is that your prosecutorial decision, or is that your 
impression based on what you may have felt at the time?
    Mr. Holder. I think that is a fair way of putting it. I 
think it is an impression. Again, I am not at that point and I 
am not now read into all of the programs that I was taking the 
administration to task there about. I was focusing on the 
warrantless surveillance program.
    There may components to that that I don't understand, I am 
not familiar with. I have had a chance to look at everything 
that has been written--not everything, but a lot that has been 
written about, have looked at the--I guess the white paper that 
the administration put out justifying its view of how it could 
use the FISA statute.
    Senator Sessions. I thank you for just saying that. It 
makes me feel somewhat better. I have been in probably 30 
hearings in Armed Services and in Judiciary on these matters. 
They are very complex. The law changed as time went by. Supreme 
Court cases came and clarified uncertainties, sometimes 
overruling what had been previously approved to be legal. And 
so I think that is important.
    It makes me feel a little better about your next statement 
in that speech, where you said, ``We owe the American people a 
reckoning.'' You are not threatening and not guaranteeing you 
are going to prosecute people until you fairly evaluate all the 
facts and the evidence and the law they thought they were 
dealing with at the time.
    Mr. Holder. No, Senator. And, actually, when I used that 
term--that has gotten a lot more attention than I think it 
deserves--I really was only talking about sharing information 
with the American people to the extent that we could about what 
was done in their name. I wasn't really thinking about 
prosecutions at all in that regard. I was thinking about 
information sharing.
    Senator Sessions. Well, you know, Jack Goldsmith wrote the 
book ``The Terror Presidency.'' He was a brilliant lawyer in 
the Department of Justice. He felt that some of the things that 
the Bush administration did were in error, and he has been 
critical and cited as a critic of the administration. But he 
made these comments: ``One consequence of the OLC's 
authority''--that is the Office of Legal Counsel, and that is 
an office within the Department of Justice, as you know, that 
is given authority to express opinions. He said, ``One 
consequence of their authority to interpret the law is the 
power to bestow on Government officials what is effectively an 
advance pardon for actions taken at the edges of vague criminal 
    In other words, if something is vague and the Attorney 
General Office of Legal Counsel says it is okay, then isn't an 
official in the intelligence agencies and the military or the 
Federal Investigative Service entitled to rely on that until it 
is reversed?
    Mr. Holder. Well, one of the things that you would have to 
take into account in making a prosecutive decision or just 
making a determination as to whether somebody had acted 
appropriately would be to see under what authority they were 
acting. An OLC opinion that gave a person the ability to do 
something and was reasonably relied on and the opinion was 
appropriately and in good faith drafted would be something that 
would obviously have to be taken into account in deciding 
whether somebody acted appropriately or not. That would be a 
huge factor.
    Senator Sessions. I think that is true, and sometimes those 
opinions could have been in error. As Attorney General of 
Alabama, I used to have to issue those opinions, and it did 
protect the officers of the State until some lawful court 
reversed it. And I just think we need to remember that as these 
officers are out there trying to serve their country.
    Attorney General Mukasey says you rely--he said if you 
don't follow that principle, it would tell people that if you 
rely on a Justice Department opinion as part of a program, then 
you will be subject to criminal investigation when and as and 
if the tenure of the person who wrote the position changed or 
the political winds changed. In other words, the average guy 
out there serving his country has got to be comfortable that he 
can rely on the opinions of the Department of Justice. Anyway, 
I am glad you say that.
    With regard to the FALN clemency situation, we had a 
hearing on it in the Senate, and it was pretty contentious. The 
United States Senate passed a resolution that was 95-2--I think 
most of our--every member of this Committee supported it--that 
deplored that pardon and included, ``Whereas, the release of 
terrorists is an affront to the rule of law, the victims and 
their families, and every American who believes that violent 
acts must be punished to the fullest extent of the law,'' then 
it deplored those activities.
    We discussed that at some length--and my time is winding 
down now. Maybe we will be able to talk about it a little 
    Mr. Holder. Sure.
    Senator Sessions. But fundamentally, let me say this: I 
thought it was an inexplicable pardon. I believe that it 
reversed the recommendation of Margaret Love, a very fine 
pardon attorney, who I believe you removed, and allowed this to 
go forward in a way that I think is unjustifiable. And you 
indicated you learned from that process.
    Let me ask you fundamentally now on the merits----
    Chairman Leahy. A vote has started.
    Senator Sessions. Okay.
    Chairman Leahy. And the time is up. Do you want to make a 
    Senator Sessions. I have got 20----
    Chairman Leahy. Because we are going to----
    Senator Sessions. Oh, I am over. I thought I had 2 seconds, 
but I am over 20 seconds.
    Chairman Leahy. We are going to have a second round.
    Senator Sessions. I will just ask this simple question. You 
have indicated you made a mistake. Do you believe that the 
decision and the ultimate act of President Clinton to pardon 
these individuals was wrong?
    Mr. Holder. I think it is a difficult decision that the 
President had. I think that there were a lot of people who were 
in support of that clemency request: Nobel Peace Prize 
laureates, Coretta Scott King, President Carter, Desmond Tutu, 
Cardinal O'Connor in New York.
    When one looks at the nature of the offenses that put those 
people in jail--and these were criminals. These were 
terrorists. These were bad people. But the President's 
determination was that they had not committed any acts 
themselves that resulted in death or bodily injury. And on that 
basis, and given the amount of time that they had served in 
jail, roughly 16 to 19 years, most I think 19 years, and given 
the length of the sentences that they had received, it was his 
determination that the clemency requests were appropriate, 
taking all that into consideration. And----
    Senator Sessions. But do you personally now--I know the 
President justified it. Do you personally have an opinion, 
after all of this, whether it was right or wrong?
    Mr. Holder. I think that given all that I have described 
that what the President did was reasonable.
    Chairman Leahy. Senator Schumer, you are also, like all of 
us, juggling three different committees. I am going to 
recognize you. I would ask--because the vote has started us and 
several of us will be leaving, myself included--that at the end 
of your round of questioning, would you--we will then stand in 
recess until 2:15 at the end of Senator Schumer's questions. 
And, Senator Sessions, I guarantee you you will have another 
    Senator Sessions. Thank you.
    Senator Schumer. Thank you, Mr. Chairman, and thank you, 
Mr. Nominee. And I appreciate--I will try to stick with my 10 
minutes and get over to the vote.
    I want to thank you for your years of service. I worked 
with you when you were Deputy Attorney General. I was impressed 
then, as I am now, with your integrity, your experience, your 
excellence. Much of the discussion leading up to your hearing 
has focused on the question of your independence. Will you be 
the people's lawyer or the President's lawyer? And I think this 
is absolutely and correctly at the heart of the matter, because 
every other day, it seems, another scathing report from the 
Inspector General hits us on the head like a hammer, reminding 
us that the likes of Alberto Gonzales and Bradley Schlozman 
sullied and demoralized a great legal institution, probably the 
finest civil service institution in the country, that they 
really dragged through the mud.
    So we are in dire need of a less political and more 
independent Justice Department beginning at the very top, and I 
spent a lot of time in the last Congress, as you know, making 
this point.
    Four years ago, moreover, the question of independence was 
my central consideration when Alberto Gonzales sat in the 
witness chair, that he was too close to the President, didn't 
understand the nature of the job of Attorney General. As I said 
when I voted against him at the time, ``It is hard to be a 
straight shooter when you are a blind loyalist.'' And I think 
that in my entire Senate career, the vote against Alberto 
Gonzales may have been one of the most vindicated by subsequent 
    So some of my friends across the aisle are questioning your 
independence and making ludicrous comparisons to Mr. Gonzales, 
and they are cherrypicking a few episodes from your long and 
distinguished career and ignoring, conveniently, other more 
substantial actions you have taken that manifest a true 
independent streak in the best traditions of the Justice 
Department. My colleagues have mentioned them already. I am not 
a fan of either the Marc Rich pardon or the FALN. I disagree 
with your ultimate analysis on FALN--and on Marc Rich, I guess, 
although you certainly said that was a mistake. I was a critic 
then and I am a critic now.
    The essential point, though, is that many who have 
criticized your role in those pardons, Democrat and Republican 
alike, recognize your entire career and vigorously support your 
nomination: Jim Comey, Louis Freeh, the Fraternal Order of 
Police. So if we are going to make an informed assessment about 
your independence, I think we have to look at the entire 
record. And as I look at your background and record, it is 
clear that you are less connected and less beholden to the new 
President than most Attorneys General in the last 50 years. 
Let's review for a moment. I have a few quick questions for 
    Have you ever been President-elect Obama's personal lawyer, 
like William French Smith had been for years for Ronald Reagan?
    Mr. Holder. No, I have not.
    Senator Schumer. Have you ever been a staffer to Barack 
Obama, like Ed Meese had been for President Reagan?
    Mr. Holder. No, I have not, Senator.
    Senator Schumer. Have you ever served as official counsel 
to Barack Obama, like Alberto Gonzales had been for George 
    Mr. Holder. No, I have not, Senator.
    Senator Schumer. And, by the way, has Barack Obama ever 
dispatched you to the hospital room of a sick Government 
official to get him to authorize an illegal wiretap program? 
Yes, I didn't think so.
    Mr. Holder. No, he has not.
    Senator Schumer. All right. And I take it you are not a 
close relation to the new President, like Bobby Kennedy was to 
Jack Kennedy?
    Mr. Holder. No, we are not related by blood, though people 
do say we look alike.
    Senator Schumer. I don't think so.
    Senator Schumer. Although you are both very handsome.
    Mr. Holder. I have heard he is handsome, and I was going to 
try to draft on that.
    Senator Schumer. Okay. Let me ask you this: Have you ever 
been a professional politician, like, say, John Ashcroft or 
Dick Thornburgh?
    Mr. Holder. No, I have never run for office.
    Senator Schumer. Okay. Before last year, at age 57 after 30 
years as a lawyer, did you owe any paid job or Government 
appointment to Barack Obama?
    Mr. Holder. No, I have not. I do not.
    Senator Schumer. When did you first meet the President-
    Mr. Holder. After he was elected, but before he was sworn 
in as a Senator.
    Senator Schumer. All right. What did the President-elect 
tell you about what kind of Attorney General he wanted you to 
    Mr. Holder. He said, ``Eric, you have got to understand. 
You have got to be different. You know, we have a pretty good 
relationship. That is probably going to change as a result of 
your taking this position. I don't want you to do anything that 
you don't feel comfortable doing. You have got to be my 
counselor. You have got to tell me if I am going to get myself 
in any kind of trouble. I understand that the Justice 
Department is different. I understand that you are going to be 
different.'' He said he hoped that it wouldn't affect our 
relationship. But he says he understands that I have a 
different obligation than other people in the cabinet.
    Senator Schumer. Well, that is refreshing, because I doubt 
that President Bush ever had that kind of conversation with 
Alberto Gonzales, and it is a refreshing change.
    So when we talk about independence, we need to keep in mind 
the notion of independence is often a two-way street. I welcome 
your nomination not just because you will be a different kind 
of Attorney General, but because Barack Obama will be a 
different kind of President. So I really want to thank you. I 
believe that your nomination, should you be approved, will end 
the rancid politicization at the Department, because it will 
mean an end to waterboarding and other shameful forms of 
torture, and because it will mean a full return to the rule of 
law and our reputation around the world. I believe you, unlike 
some of your predecessors, will be the chief law enforcement 
officer of the land above all.
    So I want to look forward, not backward. We should be 
focusing on how you will lead the Department and how you will 
change it. And so in that vein, I have some questions for you. 
Now, Senator Leahy touched on this, but I want to elaborate 
because I had questioned quite pointedly and carefully Mr. 
Schlozman. I thought then that he was not telling the truth, 
and, of course, the IG's report said he made false statements 
to Senator Leahy, Senator Feinstein, and several to me.
    So last week--and I am not satisfied that the referral to 
the U.S. Attorney was just--you know, they said they are not 
going to prosecute without any explanation whatsoever. I wrote 
General Mukasey asking him that the matter of Schlozman be 
additionally referred to Nora Dannehy. She is the Acting U.S. 
Attorney for Connecticut. She has been made special prosecutor 
already to look into possible criminal activity in the 
Department's hiring and firing.
    Do you see any problem with making such a referral, should 
you be selected--or approved as Attorney General?
    Mr. Holder. Well, I would say that I have great respect for 
the lawyers who work in the U.S. Attorney's Office in D.C. That 
is the office that I had the great privilege of leading. There 
are good lawyers there, and the fact that if it is accurately 
reported that they had a chance to fully look at that matter 
and they declined prosecution, that would be significant for 
    On the other hand, I am very disturbed by what I read or 
have read about that is contained in the report where the 
Inspector General essentially makes a finding that false 
testimony was given before this Committee. And as I indicated 
to Senator Feinstein, I would like to myself review the 
determination that was made by the U.S. Attorney's Office in 
    Senator Schumer. At the very minimum, without disclosing 
any confidential grand jury or other information, could we at 
least get a report on why the U.S. Attorney in D.C. refused to 
prosecute? Was it that he disputed the lying to Congress 
terminology of the IG? Was it that he didn't think he could 
prove the case? Perjury cases and false statement cases are 
difficult. Would you at least be willing to commit to us to do 
    Mr. Holder. I will to the extent that I can share that 
information. I mean, grand jury secrecy frequently prevents a 
prosecutor from sharing all of the reasons why he or she has 
made a particular determination. But to the extent that we can, 
I will do that.
    Senator Schumer. Good, because I am not asking for specific 
details of who said what before the grand jury, but just why 
the ultimate conclusion was made. And if you disagree with it, 
I presume you would refer it--you would look somewhere, and Ms. 
Dannehy's office is the right place to go.
    Just one more on the Civil Rights Division--again, a crown 
jewel of this Justice Department. The report from the IG 
revealed in many ways it was more like a campaign headquarters 
than a hall of justice. The report luridly detailed the 
remarkable extent to which the Civil Rights Division--what a 
great tradition in that body through Democrat and Republican 
Presidents alike. Under George Bush the First, they took the 
Voting Rights Act to a greater extent in reapportionment and 
other cases than anybody else. And then from 2003 to 2006, one 
single appointee, political appointee--Schlozman--hired 63 
lawyers, 20 percent of the lawyers working at OCR, on the basis 
of their conservative political leanings. It is a blatant 
violation. It would be a blatant violation if someone did the 
same--a Democrat did the same thing on the liberal side. And 
one supervisor saying to another that he took his coffee ``Mary 
Frances Berry style--black and bitter.'' A type of overtly 
racist statement, all the more shocking when it is a supervisor 
at the Civil Rights Division who says this.
    What are you going to do to make sure that this doesn't 
happen again? What are you going to do to sort of clean up and 
straighten out the Civil Rights Division with its great 
    Mr. Holder. Let me be very clear. The attempt to politicize 
the Department will not be tolerated, should I become Attorney 
General of the United States. It will be my intention to return 
that Division and the Department of Justice as a whole to its 
great traditions, and the great traditions that it had under 
Democratic and Republican Attorneys General and Presidents.
    What we have seen revealed in these Inspector General 
reports is almost unbelievable to me. It is clearly abhorrent, 
and it is inconsistent with the way in which I would run the 
Department of Justice.
    Senator Schumer. And do you expect a thorough cleaning up 
of the Civil Rights Division, setting it back on its civil 
service course, if you will?
    Mr. Holder. It is my intention to devote a huge amount of 
time looking at the Civil Rights Division and restoring that 
Division, making sure that there is a sense of mission, there 
is a focus on the things that have made that, as I think you 
appropriately call it, one of the jewels in the Justice 
    I see somebody sitting behind you, Bill Yeomans, who served 
in the Civil Rights Division very proudly. He is the kind of 
person who we need in the Division, and he is the kind of 
person who should be supervising people. He is the kind of 
person who should be teaching the young lawyers in the Civil 
Rights Division. That is what is my intention, to bring the 
Civil Rights Division back to the kind that existed when Bill 
Yeomans was there.
    Senator Schumer. Well, thank you, Mr. Holder, and I am 
quite certain on your record and on the basis of the testimony 
today you will be confirmed and will be a really fine Attorney 
    We are adjourned until 2:15.
    [Whereupon, at 12:36 p.m., the Committee recessed, to 
reconvene at 2:15 p.m., this same day.]
    AFTER RECESS [2:19 p.m.]
    Chairman Leahy. Isn't it amazing, what a busy day this is 
in the Senate? Senators have been in and out. There've been 
numerous confirmation hearings going on. There have been 
farewell speeches given on the Senate floor, one by a man I've 
sat with on this Committee for over 30 years, Senator Joe Biden 
of Delaware, who is leaving to become Vice President. The 
other, a Senator of my neighbor State, from the State of New 
York, Senator Hillary Clinton. So, a number of Senators have 
left to be there for their farewell. I apologize to each one of 
    Obviously I've been here, as have other people chairing 
such hearings. They are now in the process of swearing in a new 
Senator from Illinois, who is no longer Senator-designee 
Burris, but now Senator Burris. So I'm going to go, next--
speaking of elected, or appointed--the newly reelected--the 
newly reelected and senior Senator from South Carolina, Senator 
Graham. I mentioned the ``senior Senator'' because one of his 
predecessors, with whom I also served, Senator Hollings, served 
as junior Senator from South Carolina, for how many years, 
Lindsey, about 30?
    Senator Graham. Thirty-six.
    Chairman Leahy. Thirty-six years. He's the most senior 
junior Senator, ever. That's because Strom Thurmond, who came 
here with the first Congress, the Continental Congress----
    Chairman Leahy [continuing]. Was the senior Senator. But 
Lindsey Graham is the senior Senator from South Carolina. He 
has recently been in Afghanistan, Pakistan, Iraq, with Senator 
    We're glad to have you back. Go ahead.
    Senator Graham. Thank you. I enjoyed my trip with the Vice 
President-elect, and I did a lot of listening. It was fun.
    Chairman Leahy. That apparently is not the totally inside 
joke that you might have thought it was.
    Senator Graham. Thank you, Mr. Chairman. I can assure you, 
I'm genetically term limited, so I do have a tough act to 
follow in Thurmond and Hollings.
    But the one thing I would like to say to our nominee, I 
cannot think of a more personal decision one could make than 
hiring a lawyer. You'll be the Nation's lawyer as the Attorney 
General. But my perspective on these matters is that the 
President of the United States deserves the ability, within 
reason, to pick a lawyer, an Attorney General, that he or she 
has great confidence in. The fact that this President has 
chosen you speaks well for you. Given your resume, even though 
we have probably a lot of political differences, I could 
understand why he has great confidence in you.
    Having said that, as we move forward, one of the big issues 
facing this Nation, and the legal community within our Nation, 
is what to do with detainees that are captured and what is 
called ``the war on terror''. It's complicated, it's emotional, 
but I think it's very important that we get it right.
    Mr. Holder, is it fair to say that we're at war, in your 
    Mr. Holder. I don't think there's any question but that we 
are at war. And I think, to be honest, I think our Nation 
didn't realize that we were at war when, in fact, we were. When 
I look back at the '90s and the Tanzanian--the embassy 
bombings, the bombing of the Cole I think we as a Nation should 
have realized that at that point we were at war. We should not 
have waited until September the 11th of 2001 to make that 
    Senator Graham. I'm almost ready to vote for you right now.
    Mr. Holder. I'll stop.
    Senator Graham. I agree with you. We're at war. The enemy 
that we're at war with, would you agree, is an unconventional 
    Mr. Holder. No question about that. There is not going to 
be a surrender signing on the battleship Missouri. This war is 
not going to end in that way.
    Senator Graham. And the people, we're finding, they don't 
wear uniforms.
    Mr. Holder. They do not, which creates a lot----
    Senator Graham. They operate outside the law of armed 
    Mr. Holder. They do.
    Senator Graham. Maybe some of the most vicious people our 
Nation has ever fought in our history.
    Mr. Holder. I would agree with that.
    Senator Graham. If you were trying to explain to a civics 
class in the 9th grade the battlefield, where is the 
battlefield in this war? What makes up the battlefield?
    Mr. Holder. That's a very interesting question, Senator. 
The battlefield--there are physical battlefields, certainly, in 
Afghanistan, but there are battlefields, potentially, you know, 
in our Nation. There are cyber battlefields that we're going to 
have to-- where we're going to have to engage.
    But there's also--and this sounds a little trite but I 
think it's real--there's a battlefield, if you want to call it 
that, with regard to the hearts and minds of the people in the 
Islamic world. We have to do things in a way, conduct ourselves 
in a way, that we win that battle as well, so that people there 
who might otherwise be well-intentioned do not end up on the 
wrong side and against us.
    Senator Graham. The way I put it, there's a high ground in 
every war, and there's physical high ground, and in this 
there's the moral high ground, which I think is essential to 
win this war, is for America to maintain the moral high ground. 
Do you agree with that?
    Mr. Holder. Yes, I do.
    Senator Graham. Now, when you talk about the physical 
battlefield, if our intelligence agencies should capture 
someone in the Philippines that is suspected of financing Al 
Qaeda worldwide, would you consider that person part of the 
battlefield, even though we're in the Philippines, if they were 
involved in Al Qaeda activity?
    Mr. Holder. Yes, I would.
    Senator Graham. Okay.
    Now, as we decide what forum to try people and how to 
interrogate them and how to detain them, the only thing I ask 
of this new administration is that we not criminalize the war. 
I'm not asking for the ability to be inhumane. Matter of fact, 
I am crying out for our country to realize that if we capture 
somebody in this war on terror, no matter how vicious the enemy 
may be, it becomes about us, not them. Once they're in our 
capture it's not about who they are or what they believe, it's 
about our values.
    So as we close Guantanamo Bay, I would just urge you to sit 
down with military lawyers, people in both parties, and great 
legal minds and let's think through this process of how we can 
be at war with this enemy and protect ourselves and maintain 
the moral high ground that would be essential.
    The hard case for me, and I think for the country at large, 
is that person that is captured in this war on terror, because 
of the sensitive nature of the information, may not be subject 
to the normal criminal process, whether it be a military trial 
or an Article 3 trial, but we know, based on competent 
evidence, that they will go back to the fight. Have you thought 
much about what to do with that group?
    Mr. Holder. Struggled with that, and continue to struggle 
with that. These are extremely difficult questions, the ones 
that you have posed. It's one of the reasons why, in my opening 
remarks, I said it, and I meant it sincerely, that all of the 
knowledge and all of the good ideas does not reside in the 
executive branch. You are a person who has spent a lot of time 
thinking about these issues. We had a very interesting 
conversation when I came to visit you, and had, I thought, some 
very, very interesting perspectives and some good thoughts.
    This Committee has been engaged in thinking about the very 
questions that you raise. We are going to have to come up with 
American solutions. These are truly not Republican and 
Democratic issues. I mean, we as a Nation, and this Committee 
in particular, I think, has to come up with a way in which we 
resolve those issues.
    And the one that you have raised is one that has given me a 
great deal--I've given a great deal of thought to. How do we 
deal, in an appropriate way, with somebody who we know is a 
danger to this country, and yet be true to our values, and in 
that battle for the hearts and minds that I discussed, make it 
appear that we're treating this person, sworn to harm us, treat 
that person in a fair way, in a way that, frankly, they would 
not treat us.
    Senator Graham. Absolutely.
    Mr. Holder. And how we resolve that issue, that particular 
issue, I think will say more about us as a Nation than almost 
    Senator Graham. Well, let me put on the record sort of a 
goal I think we all share, that if we hold someone in prison, 
in a military prison, it will not be because somebody in the 
executive branch said so. It has to be as a result of a process 
that would allow independent checks and balances. I really 
believe that the Federal courts have a tremendous 
responsibility and role in answering the questions before that 
we're talking about now.
    So my goal would be, is that if we hold somebody off the 
battlefield that we think is part of the enemy force, not 
subject to normal criminal trials, that it will be done with 
the process that people have confidence in, that the person 
will be held only after an independent judiciary agrees that 
the evidence is competent and that the executive branch 
collaborates with the Congress and other respected institutions 
in making that decision. I think that has sort of been lacking. 
If we can find that common ground, I think the country will be 
better off.
    And when it comes to the trial of people suspected of 
committing a war crime, I hope you will look long and hard at 
our military justice system. I've been part of it for 25 years. 
I think you've seen, at Guantanamo Bay, some of the sentences 
show that the jurors, the panel members, are very reflective 
and they evaluate the evidence and they take their duty very 
     I'd end on this note. Our allies are struggling with this 
problem. Every other Nation deals with this through the 
domestic criminal ends. As I understand it, there is no concept 
in domestic criminal law that would allow you to hold someone 
indefinitely without trial. Do you agree with that?
    Mr. Holder. I think that's right.
    Senator Graham. And let me tell anyone who's listening: 
there should not be. No one should be held, in a domestic 
criminal environment, indefinitely without the right to a 
trial. But I do believe that every person who commits to going 
to war against America, or any other peaceful Nation, should be 
held off the battlefield as long as they are dangerous. Do you 
agree with that?
    Mr. Holder. I do.
    Senator Graham. There is a difference between a warrior and 
a criminal. If you want to know that difference, go read the 
transcript of Khalid Sheik Muhammed as he testified before the 
Combat Status Review Tribunal. There is no doubt in my mind 
that he is at war with us, and that if he ever was released, he 
would go back to the fight. So there is a difference between a 
common criminal and a committed warrior. The military justice 
system is humane, is transparent, I think it's the right forum, 
and I look forward to working with you as we answer these hard 
    So, God bless. Thank you for your willingness to serve your 
country in this capacity.
    Mr. Holder. Thank you, Senator.
    Chairman Leahy. I might say, just for a moment, Mr. Holder, 
Senator Graham has discussed these issues with me--sometimes 
we've been on long trips, sometimes just privately. I've relied 
on his own experience in the Judge Advocate General's Corps. We 
have also had a number of military, as Senator Graham knows, 
come before us and testify, sometimes risking their own careers 
to say what they feel should be done. We've sat there with two- 
and three-star generals, testifying that way. They, Senator 
Graham, and others have been most instructive to the members of 
this Committee who have not been in the military about how the 
Uniform Code of Military Justice works.
    I would suggest, should you be confirmed, as I fully expect 
you to be, that you may want to spend--we'll obviously have 
hearings on this subject, but you may want to spend some time 
in informal discussions with people like Senator Graham, 
myself, and others, both Republicans and Democrats on this 
Committee, maybe in an informal setting, who will at least let 
you know what our views are and have the kind of candid, off-
the-record discussion that one should, because this is a major 
issue facing our country.
    Mr. Holder. I think that's actually a very good idea. I 
referenced--didn't want to talk about the substance--the 
conversation that I had with Senator Graham. I spent probably 
half an hour, forty-five minutes with him. I left there 
thinking that this is a gentleman who's thought about these 
issues an awful lot.
    I think what you say about our military system of justice 
is correct, not only in the sentences that have been handed 
down, but also the evidentiary rulings that judges have made 
there, things that I think a lot of people did not necessarily 
expect to see in that system. I think that what you're saying, 
Mr. Chairman, makes an awful lot of sense. There is--as I say, 
you all have grappled with these issues a lot longer than I 
have, quite frankly, and it would be foolish not to tap into 
the wisdom that resides in this Committee.
    Chairman Leahy. If there's no objection, I'm going to put 
into the record a letter of support from 10 retired generals 
and admirals. There's 10 retired generals and admirals that 
support you, Mr. Holder. They are experts on military issues, 
including military detention and interrogation, and they've 
reflected the conscience of the Nation in this area. They say, 
in their letters, to summarize them, that they feel you will 
keep America safe, while protecting our basic constitutional 
rights. I think that should be considered.
    [The letters appears as a submission for the the record.]
    Chairman Leahy. Now, when I first came on this Committee, I 
served with Senator Mathias of Maryland, a man who shows great 
conscience. I served for years with Senator Sarbanes of 
Maryland, a person I know and know well, also traveled with. 
His successor is now here, Senator Cardin, who carries on the 
tradition of thoughtful Senators from Maryland.
    Senator Cardin, thank you for being here. The floor is 
    Senator Cardin. Thank you, Mr. Chairman. I have great 
mentors in Senator Mathias and Senator Sarbanes.
    Mr. Holder, thank you. Thank you for being willing to serve 
your country again. I want to thank your family, because we 
know the sacrifices that they have to make and the long hours 
that you're going to need to put in as the Attorney General of 
the United States.
    I want to talk a little bit about the Civil Rights 
Division. The Civil Rights Division has such an important 
function in our country. They're responsible for the 
enforcement of the Federal statutes against discrimination, the 
Civil Rights Acts, the Voting Rights Act, the Equal Credit 
Opportunity Act, Americans With Disabilities Act, the National 
Voter Registration Act, and Uniform and Overseas Citizens 
Absentee Voting Act, and the list goes on and on. It's a 
critically important division in the Department of Justice, and 
for the people of this country.
    The record over the last eight years has been alarming. 
There have been so few important cases brought by the Civil 
Rights Division over the last eight years in just about every 
category. They have resisted being proactive and protecting the 
civil liberties and civil rights of the people of this country.
    When you look at the allocation of resources that's been 
given to the Civil Rights Division, it's been reduced. We've 
already had several Senators comment about Bradley Schlossman's 
activities and his partisan politics, and the personnel 
decisions made in the Civil Rights Division--illegal 
activities, I might add.
    I want to give you an opportunity to tell me your own 
personal commitment to the Civil Rights Division, if you are 
confirmed to be Attorney General, and how you will direct that 
division head as far as the historic role of the Civil Rights 
Division, and what you expect to see during the Obama 
    Mr. Holder. Senator, I agree with you. It is--the Civil 
Rights Division is unique. It is, in some ways, the conscience 
of the Justice Department, and I think in some ways you can 
measure the success of an Attorney General's tenure by how the 
Civil Rights Division has done. The Civil Rights Division has 
not necessarily gotten the attention, the resources, the 
support that it has needed and requires over the last few 
    Should I become Attorney General, that would be my 
attention, to give it the resources that I have and the 
attention that the Division needs, and to revitalize a place 
that has really tons and tons of great lawyers, paralegals, and 
support staff, people who are dedicated to the mission of that 
Division, people who work hard and stay there, you know, 
extraordinary long periods of time through the course of their 
careers, when they could go and do other things and get paid 
far greater amounts of money. They're committed to the mission 
of the Division, and that, I think, has got to be one of the 
things I really focus on, should I become Attorney General.
    One of the things we're going to have to do, as an initial 
matter, is to get a great Assistant Attorney General, a person 
who is steeped in civil rights law, a person who's respected, 
and a person who will understand that the job he or she is 
going to be given is going to be a tough one, and will be 
committed to revitalizing that great Division. I think we can 
do it. I think we'll also need the help of the members of this 
Committee in terms of resources, oversight. There are a whole 
variety of ways in which I think you could help us, but that 
will be a priority for me.
    Senator Cardin. I appreciate that.
    I want to just mention one example, in voting rights cases. 
The record over the Bush administration, they brought zero 
cases on behalf of African Americans for voting rights between 
the years of 2001 and 2006, yet they were there to defend the 
Georgia draconian voter ID law that's been called the modern 
day poll tax.
    In my campaign for the U.S. Senate in the 2006 elections, 
there were deceptive practices that took place in Maryland, and 
in other States around the Nation, that were aimed directly at 
reducing minority participation in the elections. We asked the 
Justice Department to take a look at those practices. Senator 
Schumer sent a letter in, asking for action. Then-Senator Obama 
filed legislation to strengthen the deceptive practices laws to 
give the Justice Department additional tools, if they need 
those additional tools, to make it clear that we won't tolerate 
those who are using campaign tactics to suppress minority 
    I would like you to review the laws that you have, the 
tools that you have today, and come back to us and let us know 
whether you have adequate tools available to you so that the 
Federal Government can be actively involved to make sure that 
those types of practices that took place in my State, and many 
other States around the Nation--such things as sending out 
letters in minority communities telling them that election day 
was the wrong day, to try to keep them from voting--that you 
have the tools to make sure that the full weight of the 
Attorney General, the Department of Justice, can be used to 
prevent those types of activities.
    Mr. Holder. Senator, I appreciate that offer and, should I 
be confirmed, I will take you up on it. The needs are great in 
that Division. I hope the expectations are high, and I hope 
that we will meet those expectations. This is a President-elect 
who is committed to the very things that you're talking about. 
This is an Attorney General, or a person who could be the 
Attorney General, who shares the concerns that you have.
    Senator Cardin. Well, again, I thank you for that.
    I'll mention one other area that I think shows a disparity, 
a racial disparity, in our country. We've had a lot of 
discussion about the crack cocaine issue. When you take a look 
at the statistics, African Americans now serve virtually as 
much time in prison for drug offenses as whites do for violent 
crimes; 37 percent of the people arrested for drug violations, 
59 percent of the convictions and 74 percent of those sentenced 
for drug offenses are African American, even though they 
represent only 15 percent of the people.
    My point is this. We know we have disparities in our laws, 
we know we have disparities in the way prosecution is centered, 
and it's very clear that's true in regards to crack cocaine. We 
need a strategy to make sure that we rid ourselves of those 
types of practices in this country. I don't want to be soft on 
those who are violating our criminal statutes. I want to make 
sure that we are tough.
    Drugs are a huge menace to our society and I want to do 
everything I can to make sure we have effective laws, but let's 
make sure it is fairly applied in this country. I would like to 
have your commitment that you will work with us and come up 
with a strategy where we can have, I think, a fairer system of 
justice, and a tough system as well.
    Mr. Holder. I think that's right. We have to be tough, we 
have to be smart, and we have to be fair. Our criminal justice 
system has to be fair. It has to be viewed as being fair. When 
I was a judge here in Washington, DC, I saw, in the people who 
served on juries here, a knowledge, a recognition that, at 
least in their minds, parts of the criminal justice system were 
not fair, and you saw it in some of the verdicts that I saw in 
cases that I presided over.
    When I would speak to jurors afterwards and say, you know, 
why did you vote this way in a case where it seemed to me the 
government had all the evidence, that proved all the elements 
of the crime, and they talk about inadequacies in the criminal 
justice system, disparate penalties, and say that, you know, I 
really am not going to be part of that. And so I think those 
are the kinds of attitudes that we have to recognize that are 
out there and come up with a system, as you say, that is tough, 
smart, and fair.
    Senator Cardin. I have time for one more question, so let 
me return to the issue of torture for one moment. Your answers 
were very strong, and I strongly support what you have said in 
regards to torture. But I want to call your attention to one 
other area which could be a concern, and that is the use of 
rendition, where the United States has custody of individuals 
and turns them over to other countries, where we know that they 
will, in fact, use torture as a means of interrogation.
    The United States has entered into the Convention Against 
Torture. That convention provides that we should not expel, 
extradite, or otherwise effect the involuntary removal of any 
person to a country where there are substantial grounds for 
believing the person would be in danger of being subjected to 
torture. Can you just tell me, pretty clearly, that in your 
points about torture being illegal in this country, that it 
would be wrong for the United States to turn over custody of an 
individual that we have to a country where we have reason to 
believe that they will use torture against an individual that 
we transmit custody?
    Mr. Holder. Let me try to state this as simply as I can: it 
simply should not be the policy or the practice of the United 
States of America to turn over a prisoner, a captured person, 
to a nation where we suspect or have reason to believe that 
that person will be tortured. I've engaged in, as a U.S. 
Attorney, renditions--ordered renditions, but this was to bring 
people from a foreign country to this country for trial.
    If we are sending somebody to a place where--England, 
Canada, I don't know, some place where we have some basis to 
believe people will be adequately treated and fairly tried, 
we're in a fundamentally different situation than sending 
somebody to a country where we think they will be mistreated 
and will not be tried in a fair system, and that should not be 
the policy or practice of our great Nation.
    Senator Cardin. Again, I thank you for those clear answers. 
They're the ones that, at least, I wanted to hear.
    And I just want to concur with Senator Graham and his 
comments in regards to the way that we treat the people that we 
detain, and I'd look forward to your confirmation as the next 
U.S. Attorney.
    Mr. Holder. Thank you, Senator.
    Senator Cardin. The next Attorney General.
    Chairman Leahy. Thank you very much.
    We also have a former Attorney General, former Supreme 
Court Justice, newly reelected Senator from Texas, who has been 
my partner on Freedom of Information Act legislation. And 
because no good deed goes unpunished, his caucus has now 
elected him to be head of the Republican Senatorial Campaign 
Committee. I'm glad you could have time, however, to be here. I 
recognize Senator Cornyn from Texas.
    Senator Cornyn. Thank you, Mr. Chairman. I mentioned to--
Mr. Holder, good afternoon.
    Mr. Holder. Good afternoon.
    Senator Cornyn. Good to see you.
    I mentioned in our conversations, Mr. Chairman, Mr. Holder 
and I, about our shared commitment to open government issues 
and Freedom of Information Act reform. I believe he agreed that 
open government, more transparency produces greater public 
confidence in their government and more accountability among 
public servants, and I don't want to speak for you, Mr. Holder, 
but I think you agree that you would work with us to open up 
the government, to make it more transparent and more 
accountable. Did I represent that correctly?
    Mr. Holder. I would hire you as my lawyer.
    You did--yes, exactly right. That's consistent with our 
    Senator Cornyn. Senator Cardin did a good job asking about 
things like rendition. It's at the top of my list to think 
about. If we closed Guantanamo Bay and a military tribunal or 
some other tribunal determines that an individual is not guilty 
of a particular war crime with which they're charged and 
they're ordered released, if we closed Guantanamo Bay and put 
these detainees at Ft. Leavenworth, or somebody else, and their 
home country won't take them back, what do you propose we do 
with them?
    Mr. Holder. That is a difficult question. It's one that, I 
guess, Senator Graham was talking about. At the end of the day, 
if we have a basis to determine that a person is dangerous and 
we have evidence that would demonstrate that that person is 
dangerous, I don't think that, given the Supreme Court decision 
in Hamdi and the responsibility that I have as Attorney General 
of the United States, should I be confirmed, for the safety of 
this Nation, that that is a person who we can release. Now----
    Senator Cornyn. You're aware that according to the 
Department of Defense, about 61 detainees who've been released 
from Guantanamo Bay have rejoined the fight against the United 
States and our allies? And that would be the kind of danger 
that you would want to protect our country from. Is that 
    Mr. Holder. Right. We want to try to minimize that 
possibility, while at the same time making sure that we are 
fair in making a determination that somebody is dangerous, and 
then having periodic reviews to make sure that that person 
remains dangerous. I think if you do that, we are within our 
rights, and within the law, to detain that person.
    Senator Cornyn. Let me readdress--because of the nature of 
these, I've been in and out. Forgive me if this is territory 
you've covered before; it probably is. But as you know, on 
August 11, 1999, President Clinton extended offers of clemency 
to 16 terrorists who are committed to gaining Puerto Rico's 
independence by waging war on the United States. They had not 
shown remorse for their crime and they had not even applied for 
clemency, yet the clemency that was granted by President 
Clinton has been condemned overwhelmingly by both parties in 
both Houses of Congress.
    I'm advised--and please, I'm asking this as a question. I 
was advised that, this morning, you called this clemency 
``reasonable''. Could you explain why you think it's 
    Mr. Holder. Yeah. I thought--what I said was, I thought 
that the President's determination was a reasonable one, given 
the fact that there was--that these people had served really 
extended periods of time in jail, given the fact that the 
nature of the offenses of which they were convicted, they did 
not directly harm anyone, they were not responsible directly 
for any murders.
    But I think another factor is that we deal with a world now 
that is different than the one that existed then. That decision 
was made in a pre-9/11 context. I don't know what President 
Clinton would do now. I tend to think that I would probably 
view that case in a different way in a post-9/11 world.
    Senator Cornyn. How about in a post-New York Trade Center 
bombing in 1993, attacks against our embassies in Africa, the 
bombing of the U.S.S. Cole. Would those have been sufficient to 
raise your concern about granting clemency, to acknowledge 
terrorists who did not even apply for clemency and who showed 
no remorse for their crimes?
    Mr. Holder. As I was saying to Senator--I think it was 
Senator Graham--that I think we as a Nation didn't come to 
understand that we were at war soon enough, that we waited, 
perhaps, until the attacks in New York, Pennsylvania, and 
Washington on September the 11th.
    And you know, hindsight is always 20/20. But I think that, 
looking at the incidents that you have referenced, those--
again, I can't speak to the present, but those, I think, might 
have had an impact on--on my views.
    Senator Cornyn. Did you recommend clemency for the FALN 
terrorist to President Clinton?
    Mr. Holder. Yes.
    Senator Cornyn. Was that a mistake?
    Mr. Holder. I don't think it was a mistake.
     Senator Cornyn. Well, let me rephrase that, in fairness to 
you. You said, after 9/11 you would have viewed it differently. 
Post-9/11, if you had it to do over again, would you do the 
same thing or would you have declined to recommend it to the 
    Mr. Holder. That's an interesting question. I think that I 
would have viewed it differently. I think that the 
recommendation that I might have made would have been different 
in this way. I think I would have said either this is something 
we shouldn't do, or to the extent you want--or to the extent 
that there's a desire to do something and you're asking what my 
opinion is, that the sentences should not be commuted to the 
extent that they were. I think that's where I probably would 
have ended up. I don't think I would have--I would not have 
ended up, I think, in the same place that I was when that 
    Senator Cornyn. You would agree with me that I--I assume, 
after 9/11, the legally correct and appropriate way to address 
this novel attack against the United States, and the fact that 
we--I think you agreed with Senator Graham earlier that they 
should not be treated--terrorism should not be considered just 
a mere crime, but that the war against terror raised a number 
of novel legal issues that really we had not had to struggle 
with since World War II, and even then it was far different 
than it is today.
    I want to just ask you a hypothetical. Earlier, you 
condemned the use of waterboarding. But you're familiar with 
the ticking time bomb scenario, and I just want to pose a 
hypothetical for you. Let's say, as Attorney General, you find 
out that there are terrorists who have access to chemical, 
biological, or nuclear weapons and that you have a detainee who 
is in possession of information that, if disclosed, would 
prevent those weapons from being detonated in the United 
States, and thousands--maybe tens of thousands--of innocent 
people being killed.
    You would still refuse to condone aggressive interrogation 
techniques like waterboarding to get that information which 
would, under my hypothetical, save, perhaps, tens of thousands 
of lives?
    Mr. Holder. Well, I think there are a couple of ways in 
which I would look at that. One, I would not assume that 
because I would say waterboarding should not be done, that 
that's the only tool, the only mechanism that we would have in 
our arsenal to try to get that information from that person as 
quickly as we could.
    I also think I'm not at all certain that waterboarding 
somebody, torturing somebody, whatever we want--whatever 
technique you want to use, is necessarily going to produce the 
results that we want. What I've heard from the experts is that 
people will say almost anything to avoid torture. They will 
give you whatever information they think you want to hear.
    So, I'm not at all certain that, given the time sensitivity 
that I assume we have in your hypothetical, that waterboarding 
that person would necessarily give us the result that we want. 
And I think we also have to understand that we have other 
things in our arsenal that we could use, other techniques that 
we could use that would, I think, perhaps produce the result 
that we want.
    Senator Cornyn. Well, of course, torture is illegal under 
international treaties and under our domestic laws. I've heard 
people talk about torture in expansive ways, where things like 
sleep deprivation, other techniques that maybe you would employ 
as an alternative are considered torture to them as well.
    But under my hypothetical, if that were the only thing 
standing between you and the deaths of tens of thousands of 
Americans. You would decline to use that interrogation 
technique in order to save those lives, is that correct?
    Mr. Holder. Again, I think your hypothetical assumes a 
premise that I'm not willing to accept.
    Senator Cornyn. I know you don't like my hypothetical.
    Mr. Holder. No, the hypothetical is fine. But the premise 
that underlies it, I'm not willing to accept, and that is that 
waterboarding is the only way in which I could get that 
information from those people.
    Senator Cornyn. Assume that it was.
    Mr. Holder. See, given the knowledge that I have about 
other techniques and what I've heard from retired admirals, 
generals, and FBI agents, there are other ways, in a timely 
fashion, that you can get information out of people that is 
accurate and will produce usable intelligence. And so it's hard 
for me to accept or to answer your hypothetical without 
accepting your premise. I don't think I could do that.
    Senator Cornyn. One last question, quickly. You're aware 
that some of the techniques that are used, aggressive 
questioning techniques, are used as a part of training by 
American military officers and enlisted men as part of their 
own survival training, are you not, sir?
    Mr. Holder. Well, it's my understanding--and I might be 
wrong here--that we acquaint our people with those techniques 
so they can have some familiarity, some understanding of what 
it is they might face if they are captured by people who are 
far less--we'll put it out there--far less civilized, far less 
humane, far less conversant with the rules of law and war, so 
that they understand that. That is not necessarily because 
that's done, it's something that we are condoning. It's just to 
make them, to the extent we can, more resistant to the 
techniques that might be applied to them.
    Senator Cornyn. Thank you very much. Thank you, Mr. 
    Chairman Leahy. Thank you, Senator Cornyn.
    Earlier today, the Assistant Democratic Leader from 
Illinois was the senior and junior Senator from that State. He 
is back again as just senior member. We noted here, Senator 
Durbin, in the hall earlier, that your new colleague has been 
sworn in. I would also note that he's the chair of our Human 
Rights Subcommittee. That's a subcommittee that was created 
because of Senator Durbin's long-time interest in this subject, 
and he's chaired it to great bipartisan praise.
    Senator Durbin.
     Senator Durbin. Well, thank you, Mr. Chairman. That was 
very kind of you. I apologize for stepping out, but for the 
purpose noted, was to add another Democratic vote, which, as 
the Whip of the Democratic Caucus, I thought was a high 
priority for me, and for our future President.
    Mr. Holder. I would not argue with that, Senator.
    Senator Durbin. You'd better not.
    Mr. Holder. I am honored that you're here today. I was 
present for your opening statement. I reflected on it because I 
paid special attention to this issue of torture. At times it 
has been a source of torture politically for me, for some of 
the things I've said and questions I've raised. But I have felt 
from the outset that it really struck at the fundamentals of 
who we are as Americans.
    Arthur Schlessinger, Jr., the late historian, said that 
``No position taken has done more damage to the American 
reputation in the world, ever, than on the torture policy of 
this outgoing administration.'' It led me to vote against 
Attorney General Alberto Gonzales, as well as his successor, 
Attorney General Michael Mukasey. I felt that they were 
equivocal and, in the case of Gonzales, had been involved in 
the formulation of that policy.
    I listened to your opening statement, and in three words--
in three words--the world changed, as far as I'm concerned, 
because you stated, without hesitation: ``waterboarding is 
torture''. I can't tell you how many times Senator Whitehouse 
and I asked that of the current Attorney General and we could 
never, ever get a straight declarative sentence. I think it's 
important, important for our country, important for our 
position in the world. I understand Senator Cornyn's questions. 
I think they are questions that everyone who watches Jack Bauer 
in 24 would ask. Most Americans do; I have. It's a different 
    When we're going to draw values, principles, and laws, we 
have to really be cognizant of the fact that you can always 
construct a scenario that will challenge the foundation of any 
legal principle. I think it is far better for us to stand by 
standards that have guided our Nation for generations and 
return to them now with this new administration.
    The Judge Advocates General are the top military justice 
lawyers in America. I've asked them about the techniques other 
than waterboarding: painful stress positions, threatening 
detainees with dogs, forced nudity, mock execution. They told 
me that each of those techniques is illegal and violates Common 
Article 3 of the Geneva Conventions.
    When I asked Attorney Generals Gonzales and Mukasey the 
same question, they refused to respond. I think it's only fair 
that I ask you that question. Let me ask you that question 
directly: do you agree with the Judge Advocates Generals, would 
it be illegal for enemy forces to subject an American detainee 
to painful stress positions, threatening detainees with dogs, 
forced nudity, or mock execution?
    Mr. Holder. I am not as conversant with those techniques as 
I am with waterboarding. It's something I really kind of 
focused my attention on. And so I would not go so far as to say 
that those constitute torture. I don't know enough about them. 
On the other hand, Common Article 3 requires that people--
prisoners--be treated in a humane fashion, and so I would agree 
that the techniques that you have described--I would agree that 
the folks in the Judge Advocate General Corps are in fact 
correct, that those techniques violate Common Article 3.
    Senator Durbin. So in your mind they cross that threshold 
and become inhumane?
    Mr. Holder. I believe that's right.
    Senator Durbin. I was interested in the questions asked 
earlier about rendition. I won't return to that issue.
    I'm sorry that our colleague--we're all sorry that our 
colleague, Senator Kennedy, cannot be with us today, and when 
the new organizational chart comes out, for the first time in 
46 years, he won't be on the Senate Judiciary Committee, and 
we're going to miss him.
    One of the issues that he cared about dearly, and I shared 
his concern, was the issue of immigration. I'd like to ask you 
a question or two about that.
    We've had decisions made, policies implemented by this 
administration about the legal rights of those who are charged 
with being in this country illegally. The so-called 
streamlining regulations of this administration drastically 
reduced the time that immigration judges devote to each case, 
increasing the number of decisions issued with no written 
opinion and resulting in a huge backlog of cases in the Federal 
appeals courts.
    Now, Richard Posner is a judge I know in Chicago; you 
probably know Judge Richard Posner as well as I do. He is 
probably as conservative as they come. He and I get together 
for lunch once a year and we talk about the issues before us, 
and he was unequivocal in what he said about what's happened as 
a result of these new policies.
    He issued an opinion in which he concluded, ``The 
adjudication of immigration cases at the administrative level 
has fallen below the minimum standards of legal justice.'' 
That's a quote from Judge Posner.
    What are your views on these questions about the 
streamlining regulations, the administrative reviews, the 
delays, and the backlogs? Do you believe that they have 
compromised the basic standards of justice in America?
    Mr. Holder. I believe that in any proceeding in which the 
United States is a participant, we have to be fair and we have 
to be perceived as being fair, whether it is a criminal 
proceeding where death is a possibility as an option for a 
convicted defendant, or we're making a determination about what 
the immigration status is of somebody.
    We have to make sure that people are given, if not a 
technical legal due process--all the technical legal due 
process that somebody might get in a--in a trial, we have to 
make sure that, using that word--that phrase expansively, that 
everybody gets due process. We are true to ourselves, true to 
our Nation, true to who we are as a people if we do that. We 
cannot hold ourselves out as better than other Nations, and I 
think we are, unless we do those kinds of things and commit 
ourselves to doing it. It's not easy. It necessarily means an 
expenditure of resources.
    This is a difficult time for us, trying to figure out where 
limited resources are going to go, and yet that in some ways is 
the ultimate test. It's an easy thing to adhere to your values 
in times that are non-stressful, where the money is flowing. 
This is really the test, when we are at war in a couple of 
places around the world, when we have budgetary concerns. This 
is the test for America: are you really who you say you are? I 
believe we are, and I believe with the appropriate leadership, 
we can handle and deal with the issues that you're talking 
    Senator Durbin. I trust that you will consider reviewing 
the policies and regulations that led to this current situation 
involving the review of immigration cases.
    Mr. Holder. I'll certainly do that. But more than that, 
what I'd like to do is work with the members of this Committee 
to come up with ways in which we are true to ourselves, true to 
our values, and come up with the necessary resources so that we 
are able to do that.
    Senator Durbin. I know Mr. Schumer asked you earlier about 
this Mr. Schlossman, Bradley Schlossman, in terms of people he 
hired in the Civil Rights Division of the Department of 
Justice. I know he asked you the question of whether he was 
subject to prosecution.
    I'd like to ask you, I guess, a more practical question. 
According to the Inspector General's report, Mr. Schlossman 
hired 63 career attorneys into the Civil Rights Division who 
had demonstrably conservative or Republican Party credentials. 
He hired only two career attorneys who were identifiable as 
Democrats. He clearly was applying some sort of ideological 
litmus test, in clear violation of the Civil Service Reform 
    So those 63 career attorneys in the Civil Rights Division 
comprise almost 20 percent of the entire workforce in that 
Division, so they technically have Civil Service protection. 
They were appointed to these positions, apparently in 
contravention of the Civil Service Reform Act. What's the 
recourse here? Are you forced to accept those 63?
    Mr. Holder. I'm not sure what the recourse is. But I don't 
think we should paint with too wide a brush who these people 
are, these 63 lawyers at the Justice Department in the Civil 
Rights Division. I don't know who they are. They could be very 
well-intentioned people, dedicated to the mission of the Civil 
Rights Division. It doesn't mean, because they are 
conservative, because they are Republican, that they should not 
have the jobs that they now hold. I think the focus really 
ought to be on the mechanism that was used to get them into the 
    Senator Durbin. I agree with that.
    Mr. Holder. And what he did is deplorable. What he 
apparently did in front of this Committee, according to the 
Inspector General, by not telling the truth, is also 
deplorable. And as I indicated, I think it was to Senator 
Feinstein, should I be confirmed as Attorney General, I'm going 
to review the decision--determination made by the U.S. 
Attorney's Office here in DC--again, that I have great respect 
for, but I'm going to review that determination to make sure 
that their decision to decline prosecution was an appropriate 
    Senator Durbin. Thank you very much, Mr. Holder. Mr. 
Chairman, I yield.
    Chairman Leahy. Thank you very much. I would recognize our 
friend from Oklahoma, Senator Coburn. Good to have you here. 
You have waited here very, very patiently.
    Senator Coburn. Happy to do it, Mr. Chairman.
    Chairman Leahy. Glad to have you here. Please, the floor is 
    Senator Coburn. Thank you.
    Well, welcome, again. I'm sure we're going to be here 
    A couple of things. I handed you a list of supposed wastes 
and problems within the Justice Department that totals nearly 
$10 billion, and the reason I gave it to you is, is one of the 
things that we worked on this past year, but was not funded, 
but the Justice Department did have was a cold case initiative 
on unsolved civil rights crimes. I'm just going to ask you for 
a commitment today, whether we fund that or not, will you 
commit to make sure that the intent of the Emmett Till Unsolved 
Civil Rights Crimes are fulfilled?
    You have plenty of money there to do it, even if we don't 
fund it. I'm looking for a commitment that that will become a 
priority under your management of the Justice Department, 
whether we do a good job of funding it or not. I think there's 
plenty of money for you to move around, both in terms of grants 
to States, and I'd like a response on that.
    Mr. Holder. The fact that that initiative exists, that this 
Committee, that this Congress thought it important enough to 
devote its attention to it, is an indication of this Committee, 
our government, at its best. I actually believe that. Those are 
crimes committed a long time ago that, without the 
perserverence and the conscience that I think this Committee 
demonstrated, could have been forgotten. They are stains on our 
Nation's history. There are still raw feelings about what 
happened. And so, yes, you do have my commitment.
    Senator Coburn. Okay.
    Mr. Holder. And I'll figure out ways to try to move money 
    Senator Coburn. Well, the commitment's in the name of the 
board, the Emmett Till board, and one gentleman in particular, 
Alvin Sykes. We owe a great deal of gratitude to him. I tried 
to make that a more efficient bill. I wasn't able to do it. We 
all sent out press releases, but it still isn't funded and it 
still isn't happening. What needs to happen, is it needs to 
happen; whether we fund it or not, there's plenty of move in 
    I want to go back to FALN, for a minute. Being from 
Oklahoma and the tremendous tragedy we had there, and I've 
heard your statements in terms of the reasonabless, why did not 
the weight of the prosecutors and the victims' families bear 
more on your decision in terms of thinking that that was a 
reasonable part? Tell me how you came to this idea that it's 
possibly reasonable.
    Mr. Holder. I mean, I did factor that in to my 
determination. You had two U.S. Attorneys who weighed in 
against it. Law enforcement was against it. There are obviously 
the feelings that victims had, and we took those into--I took--
let's talk about me. I took those into account and balanced 
that against the people who were advocating for it, an 
impressive group of people.
    Also looked at the nature of the crimes, the duration of 
the sentences that they had served, and it seemed to me that on 
balance--on balance. It was a difficult decision, but on 
balance--in a pre-9/11 world, that the sentences that they had, 
substantial sentences up to 19 years--16, 19 years, that that 
was--that was appropriate, that the clemency petitions were 
appropriate. That was what--those are the--those are the 
factors I considered.
    Senator Coburn. So when we had our conversation together in 
the office, which I enjoyed very much, you admitted to a couple 
mistakes of judgment. But you would tell this Committee now, 
you don't think that was one of them?
    Mr. Holder. No. I think we can certainly have a difference 
of opinion about that, but I don't think that what I did there 
was a mistake in the same way that I would describe what I did 
in the pardon--the Rich pardon matter as a mistake.
    Senator Coburn. Yes. I just have to kind of think back and 
the fact that if Terry Nichols were to get clemency right now, 
what would the people of Oklahoma think? You know, here's the 
co-conspirator in the Oklahoma City bombing, and under the same 
circumstances, you know--which, granted, there is some 
differences in the case, but there's not a whole lot of 
difference; one is aiding and abetting versus commission of an 
act. So that is still worrisome to me.
    I want to spend some time--I talked with you about the 
Heller decision in my office. I believe the Second Amendment 
right--I believe the Supreme Court got it right. And I know 
your position on it, and I know you have publicly stated that 
that's the law of the land now in terms of our individual right 
to hold and own a gun.
    Post-Heller, can you kind of give me what your position is 
now? You know, there's a lot of publicity out there in terms of 
written statements and previous comments about what you believe 
on the Second Amendment. Tell me where you sit today, and more 
specifically with that thought, as Attorney General of the 
United States, what you would do with that.
    Mr. Holder. Well, I think that post-Heller, the options 
that we have in terms of regulating the possession of firearms 
has--has been narrowed. I don't think that it has been 
eliminated, and I think that reasonable restrictions are--are 
still possible. But any time that we think about interact--or 
interfering with what the Supreme Court has said is a personal 
right that has to be factored in now, the Heller decision, and 
the Supreme Court's view of the Second Amendment. I don't think 
that that means that we should turn away from the efforts that 
we have made to make this Nation more safe, to be responsible 
about--about guns and who has them, how they are used.
    I mean, our effort, for instance, to go after felons in 
possession of weapons, I mean, should be as strong now as it 
was, you know, pre-Heller. But I think that there is 
certainly--we're in a different world. I think we operated, for 
a good many years, with the assumption that the Second 
Amendment referred to a collective right. We now know that that 
is not the case. So we are still, I think, going to have to 
grapple with that and understand what that means, but I think 
it is a huge factor. It's a major difference.
    Senator Coburn. Let me ask you specifically. Much of your 
statements in the past had to do with guns as far as sporting 
events. Do you believe there's any assurance given by Heller 
that, outside of sporting use, there's a right to own and hold 
a gun?
    Mr. Holder. Outside of----
    Senator Coburn. Utilization for sport, for hunting, for 
skeet shooting, for target practice. Do you believe that 
there's a right to own a gun for other than hunting or 
sportsmen's purposes?
    Mr. Holder. I think, post-Heller, absolutely. That's one of 
the things we're dealing with in Washington, DC now.
    Senator Coburn. What kind of common-sense gun regulations 
would you like to see enacted?
    Mr. Holder. Well, I agree with President-elect Obama, you 
know, closing the gun show loophole, banning the sale of cop-
killer bullets, things of that nature. Those are, I think, the 
things that we need to focus on. Those are the things I think 
have a law enforcement component to them. Those are the--those 
are the things that I think are--are still viable in a post-
Heller world.
    Senator Coburn. Do you find any irony in the fact that you 
can serve your country in the military at 18, but in some 
places we would want to limit your ability to own a weapon 
until you're 21?
    Mr. Holder. Well, I don't--well, I guess there is--there's 
a bit of dissonance there. These decisions are made on a, I 
guess, a State-by-State basis. I guess there is some dissonance 
    Senator Coburn. Okay.
    As Attorney General, will you make a commitment to defend 
Heller's holding that the Second Amendment protects an 
individual's right to bear arms?
    Mr. Holder. Sure. That is the law, as the Supreme Court has 
given it to me.
    Senator Coburn. Would you do so if the Supreme Court 
granted cert in a case affecting or revisiting Heller?
    Mr. Holder. I'm sorry. Would I?
    Senator Coburn. Would you also defend Heller if the Supreme 
Court were to grant cert in a case affecting or revisiting 
    Mr. Holder. Oh, I see what you mean. Well, I mean, you have 
to examine the facts of the particular case and understand how 
those facts fit under the Heller determination. But Heller----
    Senator Coburn. Well, let's assume it does.
    Mr. Holder. Okay. Well, I mean, we follow--I'm a lawyer who 
follows, you know, the doctrine of stare decisis. The Supreme 
Court has spoken and, in viewing these new facts, one would 
have to take into account, in a very substantial way because it 
is the ultimate--the ultimate arbiter has said what the Second 
Amendment means --have to take that into account in deciding 
what position the Justice Department would take. I mean, Heller 
is a significant, significant opinion.
    Senator Coburn. I'm sorry. I didn't hear the last part of 
    Mr. Holder. I said Heller was a very significant opinion.
    Senator Coburn. Yes, it is. It's one I'm very happy about, 
as a Second Amendment advocate and as somebody from Oklahoma.
    If the court were to change, and yet Heller still holds and 
it was challenged again, as the chief law enforcement officer 
of the country, you would be obligated to defend the stare 
decisis of Heller. Is that true?
    Mr. Holder. Sure. That would have to be something that 
would take--that I'd have to take into consideration in 
determining what the Justice Department's position was on a new 
case, a new set of--a new set of facts. That would be a factor. 
Stare decisis would tell the Solicitor General--me--that you 
have to take into consideration the fact of the Heller 
    Senator Coburn. Right. I'm out of time. Thank you very 
much. We'll come back to this.
    Mr. Holder. Thank you.
    Chairman Leahy. Incidentally, I do want to compliment the 
Senator from Oklahoma for his rendition of ``Rocket Man''.
    Senator Coburn. Thank you.
    Chairman Leahy. You will probably not move Elton John from 
the charts, but you carried the tune better than the Chairman 
    Senator Coburn. Well, actually I'm a Beach Boy generation, 
so it was a little hard for me to move to the other genre.
    Chairman Leahy. We'll do ``Margaritaville'' next time.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Mr. Chairman.
    Mr. Holder, welcome to the Committee. I'm pretty much at 
the tail end of a long and thorough, at least, first round of 
questioning. I'd like to cycle back, first, to the beginning, 
just because of my respect and affection for the man, to remark 
on how pleased I was that Senator Warner, who served here for 
so long and with such distinction, for his first, I guess you 
could call it, official return to the body that he served, 
really as an embodiment of both independence and dignity, two 
characteristics you share with him, chose to do so to support 
your candidacy and to call all of us to the better angels of 
our nature. I was touched and impressed. I know he's not here 
any longer, but I would like to say that for the record anyway.
    On a more personal note, I want to say how impressed I am 
with your kids. This has been a long episode for them. It is a 
lot less exciting for them than it is for you to be here, and 
it's a sign of what a wonderful upbringing they've had at the 
hands of their mom and grandmother, that they've represented 
your family so well here today.
    Mr. Holder. We will take into account the fact that they 
might otherwise be at school right now.
    Senator Whitehouse. That's right.
    Chairman Leahy. And I should note that, at some point after 
the next break--well, obviously you do whatever you want to do, 
and I should say I'll certainly give you extra time for this, I 
mentioned to your mother that it's part of the Constitution few 
of us understand, that grandparents are required to spoil 
grandchildren, and then the parents can deal with it 
    Senator Whitehouse.
    Mr. Holder. She's a very constitutional--she's a good 
constitutional lawyer. She follows the Constitution quite well.
    Senator Whitehouse. We in the Senate have the good fortune 
and privilege to be present at occasionally extraordinary 
moments. One, for instance, was Senator Kennedy, who I'm 
thinking of today--he's not with us, but other people have 
mentioned him--and his return to the Senator for the critical 
Medicare vote, where he made such a difference after his 
    The year before, it was probably Senator Schumer's hearing 
in this Committee that brought Deputy Attorney General Comey 
before us to tell an appalling, an astonishing tale of the 
mission to Attorney General Ashcroft's beside. Deputy Attorney 
General Comey and FBI Director Mueller, with their lights on, 
racing to the hospital, pounding up the stairs to try to get 
    The FBI Director calling ahead to the agents by the 
stricken Attorney General's bedside, to tell them, whatever you 
do, don't leave this man alone in the room with the White House 
counsel and Chief of Staff to the President. Don't let them 
throw Comey out of the room. Then after that, we've learned 
about the eyeball-to-eyeball confrontation between the 
Department of Justice and the White House.
    Jim Comey's testimony was remarkable. I know he is a 
supporter of yours, that he supports your nomination, and that 
he's written to us on your behalf.
    What struck me was the personal nature of some of his 
discussion of how lonely and exposed it felt to be that far 
out, under that much pressure, standing on that principle.
    I know you have been there as well. As a U.S. Attorney, you 
were there when you indicted and convicted the Democratic 
chairman of the House Ways and Means Committee, probably one of 
the handful of most powerful men in this town. You were there 
again as Deputy Attorney General when you cleared a special 
prosecutor to go after a member of the cabinet of the President 
who appointed you, and you were certainly there when you 
cleared the expansion of the investigation of the President 
himself who had appointed you.
    If you don't mind me asking you a personal question, can 
you tell us a little bit about what you were feeling at those 
moments? And in those moments if it was lonely, as I suspect it 
was, what were your touchstones that gave you the courage and 
confidence to go forward and continue with those difficult 
    Mr. Holder. Well, I appreciate the question, Senator 
Whitehouse, and I'm sure you have felt those moments as well, 
having been U.S. Attorney and having had to make those lonely 
    I think you go back to the beginning and why you took--why 
we took--those jobs: you wanted to do the right thing. We swore 
to an oath to uphold the law. If you're going to be a good 
prosecutor, you have to treat the facts that come before you, 
irrespective of the political party of the person who might be 
involved, the connection they might have to you, personal or 
otherwise, the impact that it's going to have on the 
administration that you serve.
    That is why the Attorney General is different and has to be 
in some ways distant from the cabinet, even from the President 
that the Attorney General serves. Personally, those were not 
necessarily difficult decisions because it's what I expected of 
myself and what people who mean something to me would expect of 
me, not difficult in that sense, but they were nevertheless 
ones that, after made, I think you reflect on and you have 
feelings about the impact of those decisions on the lives of 
people who you admire, people who you have worked with.
    It doesn't give you any--any great sense of joy to have 
done them, and yet it is what you're called on to do. It is 
what I will do if I am fortunate enough to become the next 
Attorney General of the United States, to make those kinds of 
decisions in the way that I have in the past, lonely ones, as 
you've described them, but the right decision. I think I've 
shown a capacity to do it in the past, and a determination to 
do it in the future.
    Senator Whitehouse. Thank you.
    Let me rattle off a few quick questions. The Bush 
administration knocked down the firewall between the Department 
of Justice and the White House, it limited conversations on 
cases to a very, very small number of officials. I have many 
disagreements with Attorney General Mukasey, but to his credit, 
he did rebuild that firewall. Will you pledge to us to maintain 
    Mr. Holder. I will. I've been presumptuous enough that we 
have actually started working on that, in anticipation for 
whoever might be Attorney General--I'm not going to be so 
presumptuous there--so that the communication between the White 
House and the Justice Department reflects that which Judge 
Mukasey--Attorney General Mukasey has put in place and is 
consistent with what existed during the Clinton administration.
    Senator Whitehouse. The tainting--some would even say 
corruption--of the Department of Justice during the course of 
this administration has been both pervasive and systematic. It 
is my view that, frankly, if we went down this Committee and 
everybody listed something that bothered them that had 
happened, and you had that whole list assembled, there would 
still be more.
    In that regard, what process do you think is appropriate, 
coming on--to use a sailing metaphor--as the new captain of the 
ship to do a damage assessment, see what needs to be fixed, and 
that way you can move on to other business, but you will know 
as the commander of the Department that there is a process in 
place to make sure that whatever has been left undone, that 
ought to have been done, or whatever has been done that ought 
not to have been done, is set right?
    Mr. Holder. Well, I think you've set it out: an assessment 
has to be done, and that assessment has already begun in the 
transition effort that is ongoing. Attorney General Mukasey, 
Deputy Attorney General Phillip have been most generous in 
sharing information with us, been honest with us, very frank 
with us in pointing out places that they think need special 
attention. I have to say about those two gentlemen, that the 
only thing we were not given was the luxury of time. I think 
that, given more time, they would have done more.
    But we're going to have time. Hopefully I will be one of 
the people who have that time. It is incumbent upon those who 
will run the Justice Department to do that damage assessment, 
what is--given what has happened, where does the damage still 
exist, and then come up with mechanisms to try to repair that. 
A lot of it will be inspirational. There are a lot of people 
who are still down in the Department. So, there--there has to 
be that kind of connection and I think it's going to have to be 
a personal connection.
    I think, should I be confirmed, I'm going to have to spend 
a lot of time walking the halls, getting on airplanes, and 
talking to people in the field at the various U.S. Attorney's 
offices and making them feel a sense of mission, that the 
Justice Department is back in the way that it traditional has 
been, as I said previously, under Republican and Democratic 
Attorneys General and Presidents.
    Senator Whitehouse. Our distinguished Chairman was 
courteous enough to say I could have a little more time, so let 
me trespass on his indulgence with one final question. There 
has been some discussion about the prosecution of false 
statements to Congress. In addition to the recent OIG report 
about false statements by Department of Justice officials to 
Congress, I have referred a matter involving the EPA 
Administrator to the Department of Justice regarding false 
statements made to the Environment and Public Works Committee. 
I think that, frankly, it's been something of a recurring 
    In addition to asking you to review the District of 
Columbia U.S. Attorney's Office determination, I would ask you 
if you would consider working with us on what might be 
appropriate prosecution guidelines for such offenses, and what 
might be appropriate notice or training to people who come 
before us about the obligation that they take on when they 
testify, because I think people tend to forget that they're 
here under oath. I think I've heard stuff that's everything 
from simply slipshod to outright, cold-blooded lies.
    Mr. Holder. Well, I think there's certainly an obligation 
on the part of those of us in the executive branch to make sure 
that those who testify on behalf of the agencies, that we lead, 
or could lead, that there armed with all the tools that they 
need so that they can acquit themselves in a way that we would 
expect them to. I think that the point you make about 
training--testifying is not necessarily something that comes to 
people naturally.
    I've done this more than a few times, and I've got to tell 
you that this process has still frightened me. And to put 
younger people who have not done it before, you know, Senators, 
Congressmen like yourselves without training them, without 
making them understand the significance of what it is they are 
doing, without making them understand what's on the line, 
reflects poorly on people who run those--run those agencies. So 
I will take that suggestion as a good one and try to work with 
the people in the Department so that what we have seen in the 
recent past is not replicated in the Justice Department that we 
will have.
    Senator Whitehouse. I thank you, and I thank the 
distinguished Chairman.
    Chairman Leahy. I thank you.
    My friend, the Senator from Kansas, Senator Brownback, is 
here. I'm going to yield to him. Then after his questions, 
we'll take a break and give everybody a chance to stretch. If 
the members of the Obama family want to run hollering up and 
down the halls, feel free. It'll probably get on the evening 
news, though.
    Senator Brownback.
    Senator Brownback. Thank you very much, Mr. Chairman.
    The nominee----
    Chairman Leahy. I meant the Holder family. I'm sorry.
    Senator Brownback. Mr. Holder, congratulations on the 
nomination. I do have a number of questions to ask you, but I 
want to congratulate you and your family----
    Mr. Holder. Thank you, Senator.
    Senator Brownback [continuing].--For an extraordinary 
American journey, and it has been that.
    I want to start off on Guantanamo Bay. One of the places 
that people have talked about moving the Guantanamo Bay 
detainees, is Ft. Leavenworth, Kansas, which is in my State.
    Ft. Leavenworth does not want these detainees. If I could 
put it any clearer to you, I would, but they do not want these 
detainees. The reason they don't want these detainees, is that 
it really gets in the way of their primary mission, which is 
education. This is the Command and General Staff College of the 
military. It's at Ft. Leavenworth. It's a small base. It also 
has a disciplinary brig.
    But it's eight miles--an eight square mile base. It has no 
perimeter fence. It's bordered on the Missouri River. It has a 
train that regularly goes through about every 15 minutes. It 
has major sources of terrorist target points that they could go 
at. But that's only one piece of it. The primary mission of Ft. 
Leavenworth is to train the next generation of army and 
military leaders, and the Command and General Staff College--
Secretary Powell went through this facility.
    I just checked today and I'm looking at these numbers. We 
currently have 111 students from 91 different countries at Ft. 
Leavenworth today. We have heard from students from Egypt, 
Jordan, Saudi Arabia, and Pakistan, that they will leave the 
school if the detainees come to Ft. Leavenworth. The point is, 
a number of Islamic countries don't think these detainees 
should be held anywhere.
    Then if you hold them at the same place that they're 
training their next generation of army and military leaders, 
they're saying we're out of here, we're gone. And so the people 
there on the base are saying you are really messing with the 
primary mission, and on top of that the relationships are built 
there often between army officers, our army officers and ones 
from Pakistan, Saudi Arabia, Kuwait, key relationships in the 
ongoing war on terrorism. If you hurt that by moving detainees 
to a place at Leavenworth that's not fit anyway to move this, 
this is a big hit.
    I would just plead with you really to look at the 
specifics. I heard your clear statement earlier that you're 
closing Guantanamo, but the physical plant doesn't fit and the 
mission is significantly harmed if these detainees are moved to 
Ft. Leavenworth. I would hope you would conduct an open and a 
very clear process before any are moved anywhere, particularly 
looking at a place like Ft. Leavenworth.
    Mr. Holder. Senator, I will pledge to do that. There is a 
review now that is under way to try to figure out what might 
happen with whatever the number of people are who might have 
to--have to be moved once that assessment of what the 
population at Guantanamo looks like. You have raised some very, 
very important points. The inability to--to have people from 
Islamic countries leave and then cut short that interaction 
that they might have with our military, is really something 
that, over the long term, could harm the interests of our 
Nation. So, that factor will be one that I will take back to 
the discussions that we are having. I think that is a--that's 
an extreme--that's--not that it's not something I'd heard 
before, but I think that is a very important point.
    Senator Brownback. It's a big issue for them. I've spoken 
to Secretary Gates and the Chairman of the Joint Chiefs about 
this as well.
    Last Congress, Senator Kennedy and I successfully worked to 
pass a Prenatally and Postnatally Diagnosed Conditions Act, and 
there's no reason I would expect you to know about that bill. 
But what it was targeted at, was to provide an adoption list 
for children born with Down Syndrome. Right now, if you do the 
in-utero test for Down Syndrome, 80 percent of the children are 
aborted. Both Senator Kennedy and I thought that was a real 
tragedy. What we need to do, is to try to figure systems to try 
to encourage that they be born. This is a very tough situation. 
If you can't handle it, there are people that want to do this 
rather than killing the child.
    Then we also put in that there would be current information 
put forward about life expectancy of Down Syndrome children 
conditions for early treatment. We're both very proud that we 
could get this on through. The Kennedy family has been great on 
working with people with disabilities, and I was delighted to 
partner with him on it.
    The thing I find extraordinary is that the Americans With 
Disabilities Act, part of which Justice Department will be 
enforcing, applies and protects people with disabilities, yet 
we tend to not apply it but at a certain point of life, and the 
children tend to be killed before it gets applied to them.
    I would hope you would review within the Department of 
Justice when you would apply the ADA, the Americans With 
Disabilities Act. I know there are other agencies that have 
jurisdiction, and maybe primary jurisdiction ever this, but 
that you would look at, when do we apply the ADA? I don't know 
if you're familiar with that or if you could make a point of 
view on it.
    Mr. Holder. I think the--at core, what you're talking about 
are very personal, difficult decisions that people have to 
    Senator Brownback. I'd say a very legal question on your 
    Mr. Holder. But I think the legal determination is based on 
what the Supreme Court has said. In essence, our personal 
decision is tied to the right to privacy. I think that the 
legislation that you described, that you worked on with Senator 
Kennedy, is admirable, the possibility of adopting Down's 
children, that's obviously a wonderful thing.
    The application of the statute that you mentioned, in a--I 
guess a prenatal sense, I just don't know what the impact of 
that would be on----
    Senator Brownback. Can you see the disconnect here? If that 
child gets here, it's protected and has the ADA apply. If it 
doesn't, 60 to 80 percent are killed. I would hope you would 
look at that and say that this should be applied at an earlier 
point, because clearly the intent is to protect this child, not 
to kill it.
    Finally, I want to get into this, and I hope we can get 
into it more in the second round. I look at your background, 
and much of it which I find very impressive and admirable. The 
Marc Rich case really bothers me. I look at this, and a guy 
that renounced his U.S. citizenship and works with Iran in 
weaponry that maybe even is being used against our allies in 
the Middle East and is a fugitive, and then you allow this to 
move on forward.
    I just--that one just seems to me to be really 
extraordinary. When I go through the factual setting of it--and 
you're a thorough lawyer. You wouldn't be where you are today 
if you weren't a thorough lawyer. This case just screams out at 
something that it seems like you would push back aggressively 
against. And then it has the political connections to it as 
    One of the things I've been very troubled about lately is 
the number of political corruption cases we've had going on in 
the United States, and you've had several recently. Then this 
one has a connection where his former wife is giving money to 
the President's library, where this is going through at the 
last minute. I just think it undermines confidence in the 
overall system. I haven't heard yet really a satisfactory 
explanation to me from you about how you let that one go 
through, given the nature of this case.
    I ask, Mr. Chairman, for the record that the letter dated 
January 12th of this year from the--this is detailing what the 
House committee had put forward, sent by Congressman Dan 
Burton, be entered into the record, that goes through some of 
the specific dates and the hearing--the lengthy hearing that 
the House did on this. I just, I look at all those things and 
that just--that one seems to be really out of stream, given the 
thoroughness that you've operated with in the past, and it 
seems to have a lot of political connections to it and it 
really troubles me.
    Mr. Holder. Well, as I indicated in my opening statement, 
and I think in response to questions put to me by Senators 
Specter and Hatch, I made mistakes in that matter. One thing I 
want to make clear though, with regard to this notion of 
political connections, I was not aware at that time about these 
contributions or the ties that existed between Mr. Rich's wife 
and other people in the Democratic Party, things of that 
    With regard to questions about the facts, and some of the 
ones that you have mentioned, that was one of the mistakes I 
made. I did not acquaint myself in a way that I should have 
about all that existed in the files about--about Mr. Rich. I 
think if I had done that, I would have come up with a different 
    But that is one of the things that I have said consistently 
during Mr. Burton--Congressman Burton's hearings, in interviews 
that I've done, and before this Committee today, that that was 
one of the mistakes that I made. I think, as I've also said, 
that my record should be viewed in its entirety as you make 
your determination as to whether you think I'm fit to serve as 
Attorney General.
    This matter in which I made mistakes, I think, should be 
contrasted with a whole host of other decisions that I've had 
to make where I think I got it right, which is not to minimize. 
I don't mean to do that. I'm not minimizing the mistakes that I 
made there. But I do think that--I will hope--that will be 
placed in the appropriate context.
    Chairman Leahy. The Senator from Kansas had asked consent 
for a letter to be introduced in the record. I apologize, I 
didn't hear that, and of course it will be introduced in the 
    [The letter appears as a submission for the record.]
    Chairman Leahy. Senator Hatch, you wanted to say something 
before we recess?
    Senator Hatch. I'll be very short, Mr. Chairman.
    Mr. Holder, you've acquitted yourself well. First of all, I 
support you and believe that you should be supported. But let 
me just make this one comment. And I won't make it in the form 
of a question, I just want to see what you think.
    First, as you may have heard today, the FISA Court of 
Review released its earlier decision that the Protect America 
Act of 2007, which allows warrantless foreign intelligence 
surveillance, is constitutional. I know hat everyone will have 
to study the decision, but I wanted to note with particularity 
the court's holding: ``We hold that a foreign intelligence 
exception to the Fourth Amendment's warrant requirement exists 
when surveillance is conducted to obtain foreign intelligence 
for national security purposes and is directed against foreign 
powers or agents of foreign powers reasonably believed to be 
located outside the United States.''
    Now, this is a very significant decision. Mr. Chairman--and 
your answers to me earlier seemed to be consistent with this 
decision, that you're willing to be bound by the Constitution, 
and I knew you would be and I appreciate you saying that.
    Mr. Chairman, I ask consent that an article from today's 
New York Times, written by Eric Littwell, about this decision 
entitled ``Intelligence Court Rules Wire--Tapping Power 
Legal'', be put in the record at this point.
    Chairman Leahy. Without objection, it will be.
    [The article appears as a submission for the record.]
    Senator Hatch. And Mr. Chairman, if I could just add one 
other thing. This is difficult for you to go through, but it's 
important. I just want you to know that I've been carefully 
monitoring this; I've been here part of the time and not here 
part of the time. But I look forward to you being confirmed and 
serving in this really, really important position. I hope that 
you'll do it in a nonpartisan way, which I think you will. I 
hope that the mistakes of the past will have influenced you 
even further towards being a great Attorney General, and that's 
what I'm expecting of you.
    Thank you, Mr. Chairman. I said I'd be less than a minute, 
and I'm sorry if I went over.
    Chairman Leahy. I thank you, Senator Hatch, for your 
comment. We've worked together on these matters for many years. 
One of the things that was said while you were out following 
discussion by Senator Graham, is Mr. Holder's willingness to 
sit not just in formal meetings, but to have some informal 
gatherings on some of these issues with both Republicans and 
    I've always felt that law enforcement should not be a 
matter--you don't look at law enforcement and say that a crime 
is a Republican crime or a Democratic crime. If you've got a 
crime and a victim you don't ask what their political parties 
are, you ask how you go about helping the victims and catching 
the criminal. Both Republicans and Democrats, I've been told, 
after your comments, have said to me they intend to take you up 
on that.
    We'll stand in recess subject to the call of the Chair.
    [Whereupon, at 3:45 p.m. the hearing was recessed.]
    AFTER RECESS [4:07 p.m.]
    Chairman Leahy. Thank you, all.
    Again, one of the things I've heard universally out here, 
Mr. Holder, is how great your children have been. I'm glad to 
see you've mercifully given them a break.
    We have a longstanding and valued member of this Committee, 
who's the senior Senator from Iowa, and he's justifiably proud 
to have been the person who authored the False Claims Act, the 
modern version of it. I know you've worked in that same area, 
Mr. Holder.
    You have not had your first round, is that correct?
    Senator Grassley. That's right.
    Chairman Leahy. It seems like it was so long ago that we 
started. But go ahead. I'll yield to the senior Senator from 
Iowa so he can have his first round.
    Senator Grassley. Mr. Holder, first of all, obviously I 
haven't given your Department the attention I should today and 
been here all the time, because I'm Ranking Member on the 
Senate Finance Committee and we had four hours of discussion 
before we passed out a bill dealing with the Children's Health 
Insurance bill. So that's where I've been. I'm senior 
Republican there and I had to be there, so I'm sorry I missed. 
I hope I'm not repetitive, but if I am, please forgive me.
    The L.A. Times recently reported that you urged pardon 
attorney Roger Adams to change his recommendation against 
clemency for Puerto Rico terrorists to a recommendation in 
favor of clemency for at least some of them. Then after Roger 
Adams resisted, you directed him to draft a neutral options 
memo. I'd like to show you an FBI surveillance video secretly 
recorded in a Chicago apartment and ask you some questions. 
This chilling video shows Edwin Cortez and Alejandro Torres.
    These were two of the terrorists who received clemency from 
President Clinton after you directed that the Justice 
Department change its recommendations. The video shows Cortez 
and Torres in the process of building a bomb. Were the two 
terrorists in this video in the group that you asked the pardon 
attorney to draft a positive recommendation for?
    Mr. Holder. Senator, I can't answer that question. I don't 
have the records in front of me. I don't know the names of the 
people who were among that group of 15, I guess. I don't know 
the answer to that.
    Senator Grassley. Okay. Well, as I said, their names were 
Edwin Cortez and Alejandro Torres.
    At the time you directed the pardon attorney to draft a 
neutral options memo, had you ever seen this video before?
    Mr. Holder. No. I've not seen this video before.
    Senator Grassley. And you were aware that the video 
    Mr. Holder. I think I've seen it in some news accounts in 
the recent past, like in the last week or so, something like 
    Senator Grassley. Were you aware that after this video was 
taken, a search of the apartment led to the seizure of 24 
pounds of dynamite, 24 blasting caps, weapons, disguises, false 
identification, and thousands of rounds of ammunition?
    Mr. Holder. I can't say that I'm aware of that specific 
fact. I did know that the people who were a part of that group, 
for lack of a better term, had access to, had been captured 
with, explosives. I don't know the amounts or whether it was in 
connection with this particular thing.
    Senator Grassley. Were you aware that the FAL and 
terrorists threatened to kill the judge at their sentencing 
    Mr. Holder. That one, I'm not--I'm not aware of that.
    Senator Grassley. Okay. Well, these are facts that I 
believe. So let me ask you this: if you don't think that before 
the President decides to overturn the sentences of people like 
those in this video that were doing the things that I said they 
were doing, that the Justice Department ought to make sure that 
he is aware of the important facts like these?
    Mr. Holder. I'm sorry. The question was?
    Senator Grassley. Yes. The question is, don't you think 
that before the President--a President, in this case, President 
Clinton--decides to overturn the sentences of people like those 
in the video that we just showed doing what I said that they 
were doing, that the Justice Department ought to make sure that 
the President is aware of the important facts like these that I 
just stated?
    Mr. Holder. Yes. If the pardon process, the clemency 
process is working well, the President should have before him 
all of the relevant facts so that he can make an appropriate 
determination, using the power that he has, fully informed.
    Senator Grassley. Yes. Well, then let me get on this case 
to what I believe you said and how you characterized it. In 
light of all that we've discussed here, did you believe that it 
is fair to characterize Cortez and Torres as ``non-violent'' 
and therefore deserving of clemency?
    Mr. Holder. I'm not sure I ever described them as non-
violent. What I said before was that--and I'm not --I don't 
know if these two are the individuals who are part of that 15 
of that group. What I said is that--said with regard to the 
group of 15, none of them had, themselves, been directly linked 
to a murder or directly linked to a crime that involved an 
injury to somebody. Crimes of violence can be defined in a 
whole variety of ways that don't necessarily involve injury to 
a person. Some drug offenses are considered crimes of violence, 
even though a person has not been hurt. So the distinction I 
made was the way in which I phrased it at the beginning of the 
day, I guess, and throughout the day.
    Senator Grassley. Yes. Well, earlier today you said, in 
response to a question from Senator Sessions, that the people 
who received clemency didn't actually hurt anyone, and that you 
thought that granting them clemency was reasonable. But isn't 
it true that the only reason that the people in the video 
didn't hurt anyone is because the FBI caught them before they 
got a chance to do their damage?
    Mr. Holder. Yeah, that might be so, but that is, 
nevertheless--you know, it's a difference between, let's 
hypothetically say, between murder and attempted murder. If 
some--there's an intervening act that stops the person from 
committing the crime that they wanted to do, the person's 
intent is certainly nefarious and worthy of punishment, but the 
ultimate crimes are fundamentally different ones.
    Senator Grassley. On another pardon, I know that Senator 
Specter has gone through the Rich pardon, but I have some 
details that I'd like to ask as well. In addition to being an 
unrepentant fugitive who had renounced his U.S. citizenship to 
avoid justice, Marc Rich was also a billionaire tax cheat. 
Speaking as Ranking Member of the Finance Committee where we 
talk an awful lot about tax gap and make sure that the tax laws 
are effective, it bothers me that giving Rich a ``get out of 
jail free'' card happens, and that's especially offensive to 
    You have admitted to poor judgment in your handling of this 
case. However, it is hard for many people to accept a general 
statement of regret because Rich was so obviously undeserving, 
and because all that money that his ex-wife gave to political 
leaders just before the pardon made it look like it was a very 
corrupt operation.
    I'd like to hear what you have to say to those people who 
think ``I made a mistake and I'm sorry'' just isn't enough. 
What specific facts or legal considerations led you to be 
``neutral leaning favorable'' to the Rich pardon? Was it a 
decision you made on fact, the law, or political 
    Mr. Holder. The mistakes that I made in the Rich matter, as 
I--I think I said earlier, all involved the fact that--a 
variety of things. Among them, I should have been more informed 
about Marc Rich and--and his case. I was not. I should have 
kept the people who were involved in the prosecution in the 
Southern District of New York--good lawyers--and people at main 
Justice who were involved in the pardon process--I should have 
kept them involved. I assumed that they were. I found out later 
that they were not.
    With regard to the political stuff and the money going back 
and forth between, I guess, Rich's wife or supporters, 
whatever, that, I did not know about. That did not enter into 
the decision or the actions that I took. With regard to the 
question of what my recommendation was, when I said 
``neutral'', as I've testified, I guess, eight, nine years ago 
at this point, neutral was an unartful way of saying I don't 
know enough about this case. I should have used different 
words, I suppose.
    When it's--you talk about leaning towards favorable, what 
people frequently do not put to the end of that phrase is what 
I said, was neutral leaning towards favorable if there was a 
foreign policy benefit that might be gained, and that was on 
the basis of the Prime Minister of Israel weighing in and 
supporting the pardon. I didn't say that I'm saying we should 
do this pardon. I said, look, if there is a foreign policy 
benefit, that somebody else will have to make the 
determination. If there is that, then that might be something 
that would make me think that this is something we ought to 
    Senator Grassley. If the attorney for Rich had been someone 
that you had no relationship with rather than former White 
House counsel Jack Quinn, would you have been as sympathetic to 
his case as you were?
    Mr. Holder. I wasn't sympathetic to the case. All I did 
with regard to Mr. Quinn, as I've done for any number of 
lawyers, initially was to try to set up a meeting that he 
wanted to have with people in the Southern District of New York 
to review his case. The lawyers in the Southern District of New 
York refused to do that, and that was the end of it. I didn't 
pressure anybody, I didn't question their judgment. I might 
have done it differently, but it was their case. They made the 
decision not to do it.
    When it came to the pardon component of this, I had, I 
think, two conversations with Mr. Quinn, one in November, 
another one on that last night in January. I wasn't 
particularly sympathetic. I didn't do anything to try to make 
this--this pardon happen. I certainly didn't perform as well, I 
think, as I should have, and had I performed as well as I was 
capable of doing, I might have done something more. I think I 
would have done more to try to prevent it, but I didn't do 
anything affirmatively to try to make the pardon happen.
    Senator Grassley. Well, I think maybe you just stated a 
partial answer to this next question, so let me--but let me ask 
it anyway. What do you think was your biggest mistake in the 
handling of the Rich pardon? And please be very specific about 
what you think you should have done differently.
    Mr. Holder. Yeah. I should have made sure that I was better 
informed, that I knew more about the facts, about the 
underlying case, about the history of Mr. Rich. I should not 
have spoken to the White House and made the statements that I 
made without having had all of that knowledge. I should have 
ensured that the involved lawyers were actually a part of the 
process instead of assuming that they were. I think those are 
the mistakes that I made in connection with the Rich matter.
    Senator Grassley. Yes.
    Chairman Leahy. Thank you.
    Senator Grassley. Did we get 10 minutes or 2 minutes?
    Chairman Leahy. Yes. You had 10.
    Senator Grassley. Well, it started out--if I had 10 then I 
had 10, and I'll quit. But I thought it was five. Five 
    Chairman Leahy. In the second round it'll be five minutes 
each. I'll begin the second round. I've been told there are 
some that wanted--did you have another short question you 
wanted to ask? I'll try and accommodate you.
    Senator Grassley. No. I think if he finished answering this 
question, you looked at me and I looked away from him. But if 
you finished answering the question----
    Mr. Holder. I was done.
    Senator Grassley. Okay. Then I'll put it in the record.
    Chairman Leahy. Okay. Thank you.
    [The information appears as a submission for the record.]
     Chairman Leahy. The Freedom of Information Act, or FOIA, 
something that Senator Cornyn and I have worked on, establishes 
a statutory presumptive disclosure of information in the 
possession of the Federal Government. Actually, it places a 
burden on the government to justify if they're going to 
withhold anything from the American public. When requesters 
think they've been wrongly denied, of course they can sue and 
the Justice Department defends agencies in those lawsuits.
    Now, each new Attorney General traditionally establishes 
what the ground rules are going to be on FOIA. Attorney General 
Reno urged departments to disclose, err on the side of 
disclosing, unless there was foreseeable harm. The current 
policy we're using now was issued by then-Attorney General John 
Ashcroft, reversed the presumption of disclosure to non-
disclosure, by telling Federal departments and agencies the 
Justice Department would defend their action in not disclosing 
it. They could make any kind of a--legal argument.
    Will you review the FOIA policies and practices, and if you 
do review them, will you do it at least with the consideration 
to reopening the kind of openness--or to reestablish the kind 
of openness that FOIA was intended?
    Mr. Holder. I will pledge to do that. I don't know exactly 
how the administration is going to be structured and what traps 
I would have to run through in order to actually promulgate the 
policy, but that which Attorney General Reno--her policy, I 
think, is the way--the place where we ought to be, and that 
would be what I would be working towards. My thought would be, 
my guess would be, that the administration will--would support 
    Chairman Leahy. Much of the legislation I've worked on, in 
a bipartisan way, I might say, has been to improve the criminal 
justice system, improve and increase DNA testing, for example. 
The Justice For All Act, passed in 2004, included the Innocence 
Protection Act. I worked with former Republican Congressman Ray 
LaHood, Democratic Congressman Bill Delahunt in the House, both 
former prosecutors.
    A key part was the Curt Bloodsworth post-conviction DNA 
testing grant program, the idea being we didn't want an 
innocent person in prison or on death's row, but at the same 
time, as former prosecutors, we didn't want to see an innocent 
person go to jail, knowing that that meant the guilty person is 
still out loose and could commit the same crime over again.
    The Justice Department has been slow, ineffective, and 
sometimes obstructionist in implementing these programs. They 
put up barriers. They resisted funding key programs. The fact 
of the matter is, it's something that works well for both 
prosecution and defense. Will you work with me and others in 
the Congress in both parties to see that the key DNA testing 
programs are effectively funded and implemented?
    Mr. Holder. I look forward to that, Senator. The Justice 
Department--we in the Justice Department have not only a 
responsibility for trying to solve crimes and convict people 
who committed them. The Justice Department, unlike maybe the 
responsibility that I think defense attorneys have, they have a 
more unique function, we have--and especially those of us who 
potentially are in charge of the Department--have a 
responsibility to the system.
    And to the extent we can have tools that are made available 
to acquit people, exonerate people, as well as find them 
guilty, those things should be supported. I was--that's what I 
was talking about, I think, earlier with Senator Kyl. I agree 
with what he said and what you're saying, that there is a need 
for technology.
    Chairman Leahy. We also have the Debbie Smith DNA backlog 
reduction program to reduce the backlog of untested rape kits 
and all. These are all things that we should work on. It'll 
make law enforcement go better. It'll also not only will keep 
innocent people from going to jail, but it'll make it more 
effective and we'll get the actual person who committed the 
crime so they're not out there where they might commit the 
crime again.
    Just like enforcement of the Violence Against Women Act. 
Will you make enforcement of this a priority, including 
enforcement in Indian country?
    Mr. Holder. Yes, I will. It has been something that has 
been of importance to me since I was the U.S. Attorney here in 
Washington, DC. I started a domestic violence unit in the U.S. 
Attorney's Office in DC, having witnessed the crimes and the 
assaults that--and the unique problems that these cases present 
while I was a judge here in Washington, DC. I took the concerns 
that I saw, that were generated by what I saw as a judge, into 
the U.S. Attorney's Office and started a domestic violence 
unit. And so I would be more than happy to work with you on 
    Chairman Leahy. And lastly, many of us in both parties 
worked very, very hard to reauthorize the Voting Rights Act. We 
do it for everybody, black, white, Hispanic, whatever they 
might be, poor, rich, to make sure that the right to vote in 
this country is given to everybody. Now there's a direct appeal 
to the Supreme Court on that. I remember standing proudly--
Senator Specter and I both stood proudly--with President Bush 
when he signed the reauthorization.
    Will you, if you are Attorney General, defend the 
constitutionality of the Voting Rights Act reauthorization 
before the U.S. Supreme Court?
    Mr. Holder. Yes. The Justice Department has as a matter of 
policy the obligation to defend Federal statues. I can't think 
of a statute that my Department of Justice, should I be 
confirmed, would be more proud to stand behind.
    Chairman Leahy. Thank you.
    Senator Specter.
    Senator Specter. Thank you, Mr. Chairman.
    With only a five-minute round, I'll try to be brief on the 
questions and I'd appreciate your being brief on the responses.
    You testified, Mr. Holder, that you were not intimately 
involved, only a passing familiarity, with the Marc Rich case, 
yet the record shows that you met or talked to Quinn on October 
22nd, 1999, November 8th, 1999, January 18th, 2000, February 
28th, 2000, November 17th, 2000, November 21st, 2000. Do you 
stand by that testimony, that you were not intimately involved, 
only had a passing familiarity with that matter?
    Mr. Holder. Yes. The conversations that I had with him 
dealt with--I think, certainly the beginning part of it--the 
question of whether or not he was going to get a meeting with 
the U.S. Attorney's Office in the Southern District of New 
York. When it came to the actual pardon, I think I had two 
contacts with him: one in November, one in January. I never had 
a detailed conversation with Mr. Quinn about the facts of the 
case, and I have said that that is a mistake, that I had--you 
know, I should have either had that conversation with him, or 
independently I should have acquired sufficient knowledge so 
that I could have acted in a better way.
    Senator Specter. Well, that doesn't sound like a passing 
familiarity to me, but we'll let that stand.
    We came to the point as to whether you made any inquiry. 
According to the testimony of Roger Adams, the pardon attorney, 
he called you at 1:00 a.m. on January 20th because he was 
concerned that a pardon might be given to Marc Rich. You 
testified this morning, when I asked you about all of these 
sordid details about Marc Rich, about trading with the Iranians 
during the hostage crisis, oil for arms, hand-held rockets, 
dealing with the Soviet Union and Namibia and apartheid 
government in South Africa in exchange for Namibian uranium.
    That was certainly an opportunity, when Roger Adams, the 
pardon attorney, called you--he opposed the commutation of 
Rich--the pardon of Rich--to find out what the facts were. When 
he called you at 1:00 a.m., wasn't that a pretty clear-cut 
signal that he was very concerned to have called you at home in 
the middle of the night, and an occasion for you to say, well, 
what's up here, Mr. Adams? What are you so concerned about? And 
then you would have found out about all of these facts.
    Mr. Holder. Well, I suppose that could have happened. The 
call--as I remember, the call with Roger at that time was to 
inform me--he might have actually called me at 11:00 in 
addition to that. I'm not sure. I think he might have. But the 
call from Roger, I think, was to tell me that the Rich pardon 
had gone through, or that Rich and Pinkus Green were on the 
    The way I viewed those calls at that point, I thought we 
were dealing with a fait accompli, that the President of the 
United States, on the last day in office at 11:00 at night, or 
whenever it was I got that call, had made up his mind and that 
the decision was a final one. I didn't expect that I would have 
the capacity to turn President Clinton's mind around that late 
in the administration. I mean, this was the last night of his 
    Senator Specter. But you were on the record as saying 
``neutral leaning favorable.'' There has been a waiver of 
privilege on these pardon matters, according to a letter from 
David Kendall to Congressman Dan Burton.
    Did President Clinton talk to you about the Rich pardon?
    Mr. Holder. I never spoke to President Clinton about the 
Rich--Rich pardon.
    Senator Specter. You've been questioned extensively about 
the FALN, and in the context of your testimony that you have 
tried to follow--respect career professionals. On the FAL 
matter, according to the L.A. Times, January 9th, 2009, Mr. 
Holder instructed the Pardon Attorney's Office to ``effectively 
replace the Department's original report recommending against 
any commutation with one that favored clemency for at least 
half the prisoners.'' Mr. Adams told the L.A. Times that he 
responded to Mr. Holder ``of his strong opposition to any 
clemency in several internals memos of a draft report 
recommending denial and in at least one face-to-face meeting, 
but each time Holder wasn't satisfied.''
    Well, Mr. Holder, if you wanted to make a recommendation of 
clemency, why didn't you have the directness to do so on your 
own without seeking the cover of the pardon attorney, who had 
told you he was against it? Why submit a second request for a 
report after there has been opposition registered?
    Mr. Holder. All I asked Roger Adams to do was his job. The 
responsibility was--what I asked him to do was to draft a memo 
that went from me. The memo did not go from Roger Adams or from 
anybody else. The name that is on the memo is mine. It is a 
routine thing for the Deputy Attorney General to ask people who 
work for him to prepare memoranda----
    Senator Specter. But he had told you he was opposed to it 
and you go back to him and say change it, I want you to 
recommend clemency for at least half of these people. Why do 
you place the burden on him to give you cover if you want to 
make a recommendation of clemency?
    Chairman Leahy. The Senator's time is up, but go ahead and 
answer the question.
    Mr. Holder. Well, I'm not asking for cover, I'm asking him, 
as I said, to do his job. And I would not get cover, given the 
fact that the memorandum went from me. My name is on that 
memorandum so that anybody can look at that and say, well, now, 
who made this crazy decision? You look at it, it says from the 
Deputy Attorney General to the President. Eric Holder's name is 
on it. Roger Adams' name is not.
    Senator Specter. Okay. One more? One more, Mr. Chairman?
    Chairman Leahy. Senator Kohl wanted to ask his five minutes 
and then go to vote. As soon as he finishes that, if you want 
to ask one more question, go ahead.
    Senator Kohl.
    Senator Kohl. Mr. Holder, if confirmed, you'll be 
responsible for a budget of nearly $26 billion. As you know, 
your allocation of that budget will provide us with some 
insight into your priorities.
    Over the past years, we saw a concerted effort by this 
administration to sharply reduce Federal funding for local law 
enforcement, something that deeply troubled many of us. Funding 
for proven, effective programs like COPS, Byrne, and juvenile 
justice have been decimated. Last year, the President's budget 
requested a 60 percent reduction for State and local law 
enforcement programs, which was below its already inadequate 
levels of prior years.
    As a result, vital services to our communities have been 
cut, police departments have had to down-size, local 
prosecutors have been laid off, drug task forces have been 
eliminated, and prevention and intervention programs have had 
to scale back their services or even close their doors.
    Given your support for these programs in the past, can we 
expect to see a real change here? Will restoring these programs 
to their funding levels of prior years before the Bush 
administration be a top priority of yours?
    Mr. Holder. Yes, Senator Kohl. This is one of my top 
priorities. One of the three things I mentioned on the day of 
my announcement was a need to increase support of our State and 
local partners, not only because of what they traditionally do 
in helping us fight violent crime, but because also when it 
comes to the national security component that is now such a big 
part of what the Justice Department does, they are, in essence, 
I guess what we've come to call force multipliers. They can 
help us on the national security side by looking at that car 
that has somebody in it that doesn't look quite right if they 
have tools that they can use to analyze data, information. They 
can help us not only in the traditional way in which we've 
thought of them, they can also help us on the national security 
side. So, I think this has to be a priority for us.
    Senator Kohl. Thank you.
    Mr. Holder, I was very disappointed with the sharp cut-back 
of antitrust enforcement at the Justice Department during the 
eight years of the Bush administration. When we conducted an 
antitrust oversight hearing in 2007, we found sharp declines in 
the numbers of antitrust investigations initiated by the 
Department. Many mergers among direct competitors in highly 
concentrated industries passed review without any 
modifications, including the XM-Sirius, Whirlpool-Maytag, and 
AT&T-Bell South mergers, to name just a few. This serious 
decline in antitrust enforcement has been very disturbing. 
Vigorous and aggressive enforcement of our Nation's antitrust 
laws is essential to ensuring that consumers pay the lowest 
prices and gain the highest quality goods and services.
    What's your view with respect to the importance of strong 
antitrust enforcement?
    Mr. Holder. It's a critical part of what the Justice 
Department does. It's especially true now where consumers in 
this Nation are beset upon by so many different things, the 
economic downturn, our economic condition more generally. I 
think we have to make sure that we do all that we can to ensure 
that the American people, the consumers of this Nation, have a 
system that is designed to be free, to be competitive. And so 
antitrust enforcement will be something that we will devote a 
lot of attention to. We'll get an Assistant Attorney General 
who understands the mission of that division, the historic 
mission of that division, and I expect that we'll be more 
    Senator Kohl. One last question on resale price 
maintenance, Mr. Holder. For nearly a century, it was a basic 
rule of antitrust law that a manufacturer could not set a 
minimum price for a retailer to sell its product. This rule 
allowed discounting to flourish and greatly enhanced 
competition for dozens of consumer products, everything from 
electronics to clothes.
    However, in 2007 a 5-4 decision of the Supreme Court in the 
Legion case overturned this rule and held that vertical price 
fixing was no longer banned in every case. I believe that this 
decision is very dangerous to consumers' ability to purchase 
products at discount prices and harmful to retail competition.
    Do you agree with me on this principle, that manufacturers 
setting retail prices should be banned? Can we expect you to 
support that and provide a letter for us with respect to your 
position on this issue?
    Mr. Holder. This is something that we talked about in our 
meeting, Senator. I have to say that that decision disturbs me. 
I'm not at all certain that--again, hearkening back to our 
desire to protect the American consumer, to make the market as 
open, as free as we can--that that decision by the Supreme 
Court is necessarily a good one, and so I would want to work 
with you to try to figure out ways in which we can bring the 
competitiveness back that I think perhaps the Supreme Court in 
that decision has removed from the system. I'm very concerned, 
very disturbed by--by that decision and the implications and 
what flows from it, so I look forward to working with you on 
    Senator Kohl. I thank you very much.
    Chairman Leahy. Thank you.
    Senator, you wanted to finish a question?
    Senator Specter. Now I have two yes or no questions, no 
explanation. Did you talk to President Clinton about the FALN 
    Mr. Holder. No, I did not.
    Senator Specter. Would you make available to me the paper 
you referred to with respect to the request to Roger Adams on 
the Rich issue? We haven't been able to get a hold of a copy of 
that paper.
    Mr. Holder. I'm not sure I understand.
    Senator Specter. It's the FALN paper.
    Mr. Holder. I'm sorry?
    Senator Specter. Would you make available to me a copy of 
the FALN paper you referred to?
    Mr. Holder. That is a document that belongs to the Justice 
Department. It is not, from my understanding, mine to give.
    Senator Specter. Well, you referred to it in your 
    Mr. Holder. Yes. I have seen the document, but it is not my 
document. It belongs to the Justice Department.
    Senator Specter. Do you have the document?
    Mr. Holder. I have the document, but I have to give it back 
to the Justice Department. I signed an agreement that I will 
let no one see the document, including the people who had 
worked with me. The only person who is allowed to see that 
document is me, and I am supposed to give it back to them when 
I'm done with it.
    Senator Specter. Well, I'll ask the Justice Department for 
it. Would you ask them, too?
    Chairman Leahy. I think we've gotten--we're into five of 
your two questions.
    Senator Specter. Oh, no. I have some more.
    Chairman Leahy. Okay. We'll stand in recess, subject to the 
call of the Chair. We have a vote on.
    [Whereupon, at 4:40 p.m. the hearing was recessed.]
    AFTER RECESS [5:05 p.m.]
    Chairman Leahy. Thank you. We gave a little extra time to 
Senator Specter, and now we'd go back to Senator Feinstein. I'm 
going to try to keep the order the way it's supposed to be. 
I'll go, in about five minutes, to Senator Grassley.
    Senator Grassley. Right now?
    Chairman Leahy. Yes.
    Senator Grassley. Okay. Thank you. I'll continue where I 
left off.
    Senator Feinstein. Mr. Chairman, it is difficult to hear. I 
don't know whether I'm a dead zone or what, but I just can't 
    Chairman Leahy. Having been in hearings with the Senator 
from California I know she's not getting deaf, so it must be a 
dead zone.
    Senator Grassley. Okay.
    Chairman Leahy. Is it on?
    Senator Grassley. Mine is on, yes.
    Can I go ahead?
    Chairman Leahy. Yes.
    Senator Grassley. Okay.
    On the night before the pardons were issued, January the 
19th, Quinn's notes reflect a telephone call with you in which 
you said you had ``no personal problem with a pardon'', but 
that you expected a ``howl from the Southern District'' once 
prosecutors there found out about it. Mr. Chairman, I'd like to 
place some telephone notes in the record at this point.
    Chairman Leahy. Without objection.
    [The information appears as a submission for the record.]
    Senator Grassley. And then I have a chart that has these 
calls on them that you can look at.
    You testified before the House that you did not remember 
saying you had no problem with a pardon. Do you remember a 
comment about ``howl from the Southern District'' ?
    Mr. Holder. At this point, Senator, I mean, we're talking 
about something that happened, what, 2001? So that's eight 
years ago. I don't remember that, though I--though I find that 
comment interesting because if I said that, that in some ways 
indicates that I'm working under the assumption the Southern 
District knows about this. I see quotes around only part of it, 
and then something that says ``when they find out'', which 
appears not to be from--I guess, from this piece of paper that 
I was--I was just handed. So, I don't--I don't remember.
    Senator Grassley. Okay.
    As a prosecutor, wouldn't you agree that notes like these, 
taken at a time or just after a conversation, are much more 
reliable evidence than somebody's memory on the conversation 
months or years later?
    Mr. Holder. As a general matter, I'd say that that's true. 
I wouldn't say that that's true of the particular piece of 
paper that I have in front of me. I'd want to know exactly what 
were the circumstances under which this was generated, what 
were the conditions. I mean, there's a lot of questions I'd 
want to know about this piece of paper. I would agree with you, 
    Senator Grassley. Okay.
    Well, would you have in your possession any notes that 
would support a different account of the conversation?
    Mr. Holder. No. I didn't take any notes of any of the 
conversations that I had. I don't--I'm not in the habit of 
taking notes of conversations I have.
    Senator Grassley. Do you have any explanation why Mr. Quinn 
would have written these notes if they weren't true?
    Mr. Holder. No.
    Senator Grassley. Okay.
    Mr. Holder. I take--on the other hand, I don't know why he 
would have taken these notes. But one thing that sticks in my 
mind is this one that he--he took the note that said, 
supposedly I said ``go straight to the White House''. I know I 
did not say that, and that appears in a piece of paper, a note 
that he took, which gives me some pause with regard then to 
other things that he perhaps wrote. I'm not saying he's making 
things up. Maybe he misinterpreted things. But that one, I know 
I did not say. This, I simply don't remember.
    Senator Grassley. Well, could I assume that based upon the 
notes, that you did say something to Quinn on the night before 
the pardon about the prosecutors in the Southern District 
howling that seems to suggest that you knew that they were 
unaware that the pardon was being considered and that they 
would complain loudly if they knew? After all, if they knew, 
the prosecutors would have been already out there yelling about 
    Yet, you testified before the House that you didn't ask to 
see the pardon petitions when Quinn first mentioned it because 
``my belief was that any pardon petition filed with the White 
House ultimately would be sent to the Justice Department''. 
It's hard to believe that you assumed the Justice Department 
had been reviewing the petition since November 2000, but by 
January 2001 that prosecutors were not yet howling about it. 
Isn't it true that you knew, on the night before the pardon, 
that the prosecutors did not have a chance to weigh in, and 
doesn't that contradict your testimony that you believe the 
White House would forward the petition to the Justice 
    Mr. Holder. No. Actually, I think, as I said earlier--
again, I'm not--I've not seen this, you know, for some time. 
And I'm--I think that the fact that you say Holder says, 
there's only part of that that's in quotes, ``howl from the 
Southern District''. Again, I don't remember saying that, but 
if in fact I said that, I think that actually points the other 
way. It shows that there is an expectation assumption on my 
part that the people in the Southern District, in fact, know 
about this. I don't--now, the part that says ``when they find 
out'' does not have quotes around it, so I don't know where 
that comes from.
    Senator Grassley. Okay. My time is just about up. Mr. 
Holder, during the House pardon hearings you said repeatedly 
that you believed all along the President was extremely 
unlikely to grant the pardon. According to your testimony, 
that's why you failed to make sure the President heard both 
sides of the story.
    Essentially, you didn't think Justice Department input was 
necessary to stop it because Rich was a fugitive, and that 
would disqualify him. However, less than a year earlier you had 
successfully supported the position for another fugitive, 
Preston King. Mr. King's case is very different from Marc Rich, 
but they were fugitives and President Clinton had just pardoned 
King. In light of the recent history, why would you say that 
you thought merely being a fugitive would disqualify Rich?
    Mr. Holder. Well, because the King case was really 
fundamentally different. That involved a person, an African 
American, who had been discriminated against. I don't remember. 
I don't--I think it was a Selective Service case, or something. 
I don't remember exactly what the facts were, but that had the 
indicia of something of a wrong that needed to be righted.
    Mr. King being a fugitive was not in the same category of 
fugitive as--as Mr. Rich. They were just fundamentally 
different types of cases. I don't remember all the facts, but I 
do remember it was something about a racial injustice that had 
happened to Mr. King. I think it had something to do with a 
draft case, but I'm not sure about that.
    Chairman Leahy. Thank you.
    Senator Feinstein.
    Senator Feinstein. Thank you very much.
    Mr. Holder, when my time was used up in the morning we were 
talking about the use of independent contractors that the CIA 
utilizes to carry out interrogation techniques. I mentioned 
that I wrote a letter to Mr. Mukasey in February of last year, 
asking as to why this does not satisfy the inherently 
governmental strictures that must be used. The FBI uses its own 
people, its own agents for interrogation, the military uses 
their own agents for interrogation, or soldiers for 
interrogation, but the CIA uses, wholly, contractors. It seems 
to me that the interrogation of detainees in a war fought by 
the United States is an inherently governmental function. I'd 
like to ask that you commit to re-review those decisions, and I 
have the letters here which we will forward to you.
    Mr. Holder. Fine. I'd be glad--we'd be glad to, Senator 
    Senator Feinstein. Thank you very much.
    Let me ask this question. It seems that one of the issues 
surrounding closure of Guantanamo is what to do with the 80 or 
so detainees that likely will not be tried, but have been 
adjudged to be unlawful combatants and a threat to U.S. 
security. Do you believe that there are international treaties, 
and specially the law of armed conflict, that would allow the 
detention of an enemy combatant for the duration of the 
    Mr. Holder. I think--I can't refer to something specific, 
but I think that's a generally accepted rule of war, that 
during the course of a conflict a person who's captured by the 
other side can be detained for the duration of that--of the 
conflict. But there are safeguards for that person, there are 
ways in which that person has to be treated, but I believe that 
is the general state of the law.
    Senator Feinstein. Well, if you assume, as I do, that the 
law of armed conflict would cover this and that this is an 
unusual, asymmetric war that's going to go on, that there 
should be some form of regular Federal review of the case. Do 
you have any thoughts on that? Should that be an annual review, 
which I would think would make sense to have a judge look at 
the case outside, thereby provide some element of due process?
    Mr. Holder. Yes. That's one of the things I'd like to work 
this Committee on, and one of the things I discussed with 
Senator Graham. I think that there has to be fairness in two 
spots, one, in making a determination that the person is an 
enemy combatant, is dangerous, and then, two, a review of that 
decision on some periodic basis. I think a year is probably 
pretty reasonable. Because if we get to the point where we 
conclude that the person is not dangerous, then I think we need 
to go to the other phase, which is to try to repatriate the 
person, take the person to some other country. Given the fact 
that this is a war that may go on for an extended period of 
time, I think that kind of review has to be a part of what we--
what we do.
    Senator Feinstein. One more quick question, and I thank you 
for that.
    The FBI is in the jurisdiction of this Committee, as well 
as the Intelligence Committee, for its work on counter-
terrorism and intelligence-related activities. The Senate 
Intelligence Committee received, last week, the answers to 
questions from one of its open hearings that was held in 
January of 2007. Now, that's two years to get a response and 
we've had to fight to get the response.
    The FBI regularly tells both this Committee and the 
Intelligence Committee that it can't respond quickly because 
all information provided to Congress has to be vetted through 
the DOJ, and that causes delays. Similarly, the DOJ prevents 
the FBI from answering questions from Congress on its domestic 
intelligence and counter-terrorism questions.
    Now, we are not looking to get into the details of an 
investigation. We are looking to carry out our oversight 
responsibility, and therefore I would like to ask you if you 
would review this oversight, because I think it's been a way to 
stymie oversight rather than prompt, quick review which allows 
the committees to do their work.
    Mr. Holder. I'll commit to doing that. A two-year response 
is obviously unacceptable. I'll work with Director Mueller and 
the folks in the Justice Department to see if there's a way in 
which we can decrease that amount of time. Two years is simply 
unacceptable. Even--I don't know exactly what's going on in 
the--in the Justice Department. We can certainly do better, way 
better, than that.
    Senator Feinstein. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Feinstein. Thank you for 
coming back. I know that you have the additional burden, as the 
outgoing chair of the Rules Committee, to coordinate the 
inauguration on the 20th. So, I know that you've been doing 
double and triple duty today, as well as taking over 
Intelligence. So, thank you very much.
    And of those who have double and triple duty, Senator Kyl, 
of course, is the Assistant Republican Leader for the Senate, 
and has also been in other committees today. So, Senator Kyl, I 
appreciate you coming back. I yield to you.
    Senator Kyl. Thank you, Mr. Chairman. There seems to be an 
inordinate number of members of this Committee and the Finance 
Committee that serve together, and we had a big mark-up in 
that, so I apologize for the way that the questions here are 
perhaps a little bit broken up.
    We talked this morning about many of the matters that you 
and I discussed when we met in my office. There was one other 
matter that we hadn't gotten to yet, and I want to bring that 
up, first. It was the problem of Internet gambling. Without 
going through all of the different things that we discussed, we 
talked about the potential for fraud, money laundering, and 
organized crime.
    Again, I won't go through all of that. But the question 
that I would ask, and want to just get confirmed for the 
record, is that you indicated that under your leadership the 
Department of Justice would continue to aggressively enforce 
the law against the forms of Internet gambling that DOJ 
considers illegal.
    Mr. Holder. That is correct, Senator.
    Senator Kyl. Then we discussed the regulations that were 
issued recently by--actually, jointly by the Federal Reserve 
Board and the Treasury Department, in consultation with the 
Attorney General. The regulations primarily try to go at the 
problem by thwarting the payments for unlawful Internet 
gambling--in other words, to shut off the cash flow.
    I mentioned the fact that they were already beginning to 
spend millions of dollars in an effort to try to undo these 
regulations somehow, and hope that you would--and you indicate 
you would--oppose efforts to modify or to stop those 
regulations, and, of course, continue to be vigilant in 
enforcing those regulations to shut off the flow of cash from 
this illegal activity. Is that your intent?
    Mr. Holder. Yes, that is my position. That's what I will 
    Senator Kyl. Yes. Thank you. I appreciate that very much. 
We could talk a lot more about the pernicious nature of 
Internet gambling, but in view of the time here, let me move 
    One thing we did not talk about, but I understand--in fact, 
I know you were asked by Senator Leahy--I've forgotten who it 
was, someone earlier, about the liability protection for the 
telecommunications companies under the FISA law.
    My understanding is that you answered the question, saying 
that you would honor the certificate issued by Attorney General 
Mukasey that allowed the companies to claim the liability 
protections, unless there were compelling circumstances. Is 
that approximately correct?
    Mr. Holder. That's, I think, correct. Yes.
    Senator Kyl. Okay.
    Now, the certification by General Mukasey was based on an 
investigation of the previous conduct of the telephone 
communications--telecommunications--companies prior to the 
revisions in the law in order to determine whether they were 
entitled to receive retroactive immunity. In other words, the 
lawsuits had been filed based upon their earlier conduct. The 
new law provides explicitly protection for conduct 
prospectively. So the question obviously that arises then, is 
what conceivable, compelling circumstances could you conceive 
of that would relate to this previous investigation that caused 
General Mukasey to issue the certification?
    Mr. Holder. Senator, I'm not sure that I can come up with 
what those compelling circumstances might be. I guess maybe I 
was being a little too lawyerly in trying to give myself some 
wiggle room. I can't imagine what set of circumstances there 
would be that would have us go back and undo those 
certifications. I can't imagine it. I don't know.
    Senator Kyl. And you are aware that the Department of 
Justice, of course, has taken a position in the litigation 
involving AT&T in support of the liability protections that 
have been invoked by AT&T?
    Mr. Holder. Yep.
    Senator Kyl. And it would be quite unusual, where 
constitutional issues are involved, for the Department, just 
because of a change in administration, to take a different 
    Mr. Holder. Yeah. It would certainly not happen as a result 
of the change in administration. That would not be a compelling 
circumstance. And I--if you----
    Senator Kyl. I didn't mean to suggest that either.
    Mr. Holder. No, no, no. No. I'm just saying that if you--
you know, put me to the task to say, all right, Mr. Holder, 
tell me what the compelling circumstance might be, I don't 
think I could answer that question.
    Senator Kyl. I hope you'll consider this question not out 
of bounds. We also discussed the speech you made, and you 
talked about activities before the Congress acted. I had one 
question to ask in that regard, but we hadn't discussed this. 
You were Deputy Attorney General during the Clinton 
administration when the Department of Justice authorized the 
warrantless served of Aldred Ames, the spy, who is a U.S. 
citizen, of course. This was in 1993. Were you involved in that 
authorization, by any means or to your recollection?
    Mr. Holder. I don't remember.
    Senator Kyl. Do you have any reason to believe that it was 
    Mr. Holder. No. Actually----
    Senator Kyl. Even though it was warrantless?
    Mr. Holder. No. I was talking to a member of my staff. As I 
understand it--now, as I understand what he relayed to me, 
there is a national security exception not covered by FISA that 
would have made that search appropriate, legal, I think.
    Senator Kyl. Yeah. FISA was not involved in that.
    Mr. Holder. Right. I think that's what was relayed to me.
    Senator Kyl. Okay. My time is up for this round, so I'll--
    Chairman Leahy. I thank you very much, Senator.
    Senator Feingold.
    Senator Feingold. Thank you.
    Again, Mr. Holder, among the last-minute administrative 
actions taken by the outgoing Attorney General was to approve 
major changes to the Attorney General guidelines governing 
domestic FBI investigations, changes that went into effect on 
December 1st. As you may recall, I and a number of other 
Senators on this Committee repeatedly raised concerns about 
these new guidelines, with the way that Congress was supposedly 
consulted, with the decision to push these through during the 
lame duck period, and also with the substance of the changes.
    Will you take a close look at these guidelines early in 
your tenure and consider whether changes need to be made, and 
will you engage in real consultation with Congress as you do 
    Mr. Holder. The guidelines--I will do that, Senator. The 
guidelines are necessary because the FBI is changing its--its--
its mission, going from a pure investigative agency to one that 
deals with national security matters. I understand the concerns 
that you have expressed. I think the thing to do would be to 
see how these guidelines work in operation, but then to take--
ask some serious questions, and whether or not the concerns 
that you and others have raised have been borne out by the way 
in which these things have been used in practice. So, yes, I 
would commit to doing that.
    Senator Feingold. Thank you. I think these concerns are 
really quite serious. I appreciate that. And this is related to 
it. The FBI has developed a policy document that is hundreds of 
pages long to implement these new guidelines. I asked FBI 
Director Mueller back in September whether those policies would 
be made public to the greatest extent possible. He said yes. I 
understand from a letter we recently received from the FBI 
General Counsel that a process is under way to consider what 
portion of those policies can be made public.
    As Attorney General, will you support efforts to make as 
much of those FBI policies as public as possible?
    Mr. Holder. Yes. I think that helps the FBI, it helps our 
overall law enforcement effort to be as transparent as we can, 
understanding there are certain things that we cannot share. 
But to the extent that we can, we are helped by doing that.
    Senator Feingold. Thank you.
    In his first State of the Union address, President Bush 
said of racial profiling: ``It's wrong and we'll end it in 
America.'' Not long after that, Representative John Conyers and 
I introduced the End Racial Profiling Act. Senator Barack Obama 
was a co-sponsor of the bill in the last two Congresses. Will 
you support the enactment of this or similar legislation to end 
racial profiling in America?
    Mr. Holder. I'm not familiar with the bill. I apologize for 
that. But I think that we have to do something to end that 
practice. It's not good law enforcement. You make assumptions 
on the basis of the way a person appears and you either put 
somebody in the ambit of suspicion, or you miss somebody 
because you're looking at that other person. There are a whole 
variety of reasons why we shouldn't be doing that, so I am 
against, in every way, racial profiling.
    Senator Feingold. Well, my question was whether you'd 
support legislation, because there have been some things done 
by the Justice Department and the administration in this 
regard. Do you agree that there's a need for legislation in 
this area?
    Mr. Holder. I'd like to work with you and see what the 
legislation says and see if there are deficiencies in what the 
Department has done, and get a sense--this is not an issue I 
focused on very recently--and get a sense of whether ore not 
legislation, as opposed to something else, might be the better 
way to do it. I'm not saying that I'm opposed to legislation, I 
simply don't have a factual basis at this point.
    Senator Feingold. Fair enough. I do think there's a strong 
need for legislation, a law of the land, making it very clear 
from a legislative, legal point of view that this is not 
    On the death penalty, as you know, in 2000 when you were 
the Deputy Attorney General, the Justice Department publicly 
issued a nearly 400-page report with every conceivable piece of 
data about Federal death-eligible cases, down to the District 
level, covering the time since the Federal death penalty was 
reinstated in 1988. This comprehensive report was extremely 
helpful in understanding how the Federal death penalty has been 
    In the past two years, I have repeatedly asked Justice 
Department officials whether they would prepare a similar 
report covering the time period since 2000. And while the 
Department provided some statistical information in connection 
with an oversight hearing I held in June 2007, it never agreed 
to prepare a detailed report similar to the one Attorney 
General Reno issued.
    Will you commit to making this information publicly 
available, if you are confirmed, just as you and Attorney 
General Reno did in 2000?
    Mr. Holder. Yeah. That report was done by lawyers in my 
office and I thought it was a very useful examination of the 
system and raised some very disturbing questions about not only 
the racial identity of people who were in the death system--in 
the Federal death system, but also the geographic distribution 
of those people. So this is an issue that I think needs to be 
revisited. It's been about, as you say, eight years or so, and 
it might be, I think, an appropriate time to do another--
another study, and then share the results as we did in that 
first--in that first study.
    Senator Feingold. Thank you for that.
    Finally, I was encouraged by your testimony that the DOJ 
should ``reinvigorate its efforts to protect the public in 
areas such as food and drug safety and consumer product 
safety.'' As you know, private lawsuits play a significant role 
in protecting the public, but the outgoing administration has 
pursued a far-reaching policy of trying to preempt State tort 
law through Federal regulatory action.
    What is your view of this trend toward so-called regulatory 
preemption, and do you think the position of the Federal 
Government in such cases needs to be changed to restore common-
law legal rights of injured citizens?
    Mr. Holder. Well, I'm not an expert in that--in that field 
of the law, but I think what we need to do is approach that 
from a pro-consumer perspective. I think we need to always be 
doing that, protecting the American people, but I think that's 
especially true now, given the economic hardships that so many 
of our fellow citizens are facing.
    Senator Feingold. Thank you, Mr. Holder.
    Thank you, Mr. Chairman.
    The Chairman. Thank you very much.
    Senator Cardin.
    Senator Cardin. Thank you, Mr. Chairman.
    Mr. Holder, when you are confirmed to be the Attorney 
General of the United States, one of your principal 
responsibilities is to make sure that access to our legal 
system is available to all of our citizens.
    Last year, this Committee held a hearing on access to civil 
legal services. We looked at the Legal Services Corporation. 
The last study was done in 2005 that showed that, of those 
people who are eligible for legal services and apply for legal 
services, about 50 percent are turned away. Over a million 
cases a year were denied because of a lack of resources to have 
access to our system. That denies justice to the people who 
could not get those services.
    When we look at this circumstance, we find that we can do a 
lot better. I guess my question to you is this. Congress should 
have been appropriating more money. We're at about 50 percent 
of what we said was the minimum level for appropriations, so 
Congress hasn't provided the money. We haven't had a 
reauthorization Legal Services Corporation for a long time. My 
question to you is, I hope this will become a priority. I 
understand the difficulty of getting legislation passed in 
Congress in this area. It's not going to be easy. The 
jurisdiction rests primarily with the HELP Committee.
    This Committee has the responsibility of access to the 
legal system, but I would hope that we could find a way to 
bridge this gap, working together with the Department of 
Justice, and take advantage of an opportunity. Even though 
we're in tough economic times, the circumstances are even more 
difficult for people who are seeking help through our legal 
    Mr. Holder. Yeah. I think one of the responsibilities that 
the Attorney General has, in addition to a few other people, is 
a systemic responsibility, not only to do the things that 
concern the Department of Justice directly, but also to take 
care of a system of justice, on the criminal side as well as 
the civil side.
    I was one of the co-chairs of President Clinton's effort of 
lawyers for One America, where we tried to stress the need for 
representation in civil matters. The statistics are appalling 
and consistent with what you say, the number of people--usually 
poor and disproportionately women--who are not represented in 
civil proceedings and they are not getting justice as a result 
of that.
    Senator Cardin. I want to bring up a matter that you 
initiated when you were the U.S. Attorney for the District of 
Columbia, and that is Community Prosecution Project, where you 
worked with the community to get a better understanding of what 
you're doing, and also a better understanding of the community 
needs. The goal was to reduce crime, to increase neighborhood 
safety, and get better cooperation between the community and 
the prosecutor so that you could be more effective.
    My question is whether we could use that as a model and try 
to develop smarter ways that we can involve communities so that 
we can keep our communities safer.
    Mr. Holder. I think it is a model and I think it is 
something that we should experiment with in other parts of the 
country. We have seen the success of community policing, and it 
was our thought that community prosecution would also work. I 
think that we saw positive results from what we tried in 
Washington, DC, and we tried it in other places in 
demonstration projects. Funding for it didn't continue into the 
new administration. I think it is something that is worthwhile 
and worthy of looking at, and potentially expanding.
    Senator Cardin. We're working on some legislation with some 
other members of the Committee to try to allow some discretion 
in setting up these types of programs in other parts of the 
country. We urge you to work together with us to see whether we 
can't get some legislation passed in that area.
    Let me ask just one more question dealing with the Juvenile 
Justice and Delinquency Prevention Act. I want to talk about 
one of the four core requirements, which is the 
deinstitutionalization of status offenders. Status offenders 
are those who are truant, or minor issues. In the 1980s, we 
enacted a valid court order exception, which was supposed to be 
an exceptional circumstance where you could put a juvenile in a 
facility in order to rotect that juvenile. It was never meant 
to undermine the purpose of the Act, to deinstitutionalize 
status offenders. The number of use of these orders have 
increased dramatically over time.
    I would urge, as we look at the reauthorization of this 
Act, to make sure that the core requirements that were intended 
are now carried out and we have a realistic schedule so that we 
can phase out the need for this exception.
    Mr. Holder. I agree with you, Senator. We don't want to 
have a situation where we have status--juvenile status 
offenders who are made a part of the juvenile system. It does 
not do them well. It doesn't--we have limited space in the 
juvenile system. In any case, we shouldn't be using that space 
for status offenders. There has to be an alternative way in 
which we deal with them. And again, it's a question of who we 
are as a Nation. We can be--we have to be, you know, smart, up 
    If we deal with these kids who have these status offense 
problems in a constructive way, it's much less likely that 
we're going to have to deal with them either as juveniles later 
on in the system, or as adults in the criminal justice system. 
But it all requires focusing attention on those kids when 
they're not really in serious trouble.
    Senator Cardin. Thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. Senator Coburn.
    Senator Coburn. Thank you. First of all, I'd like unanimous 
consent to put into the record evidence of self-defense from 
gun ownership, various articles.
    Chairman Leahy. Without objection.
    [The articles appear as a submission for the record.]
    Senator Coburn. Since I only have five minutes, I want to 
go back to guns just for a minute. Do you have any plans to 
issue regulations or seek a change in the concealed carry laws 
of the States or have a Federal regulation that might impact 
    Mr. Holder. That has not--that has not been something that 
I have discussed with anybody in the administration. It's 
nothing that I have contemplated.
    Senator Coburn. It's nothing you're contemplating?
    Mr. Holder. No.
    Senator Coburn. And I understand President-elect Obama does 
have an opinion on ``assault weapons''. Can you tell me what 
your plans are and how you view that, and whether or not you 
think that ban ought to be reinstituted?
    Mr. Holder. Yeah. I think you had asked me earlier about 
the regulations that I thought might still exist post-Heller, 
and I had mentioned, I think, closing the gun show loophole, 
the banning of cop-killer bullets, and I also think that making 
the assault weapons ban permanent would be something that would 
be permitted under Heller, and I also think would be good from 
a law enforcement perspective.
    Senator Coburn. Okay. Thank you.
    I want to move just to another area that hasn't been 
covered. I also want to say, I'm still troubled about the FALN 
decision, with that. As I kind of do some more equivalency with 
the Oklahoma City bombing and the people who were in the 
conspiracy but yet didn't actually commit the acts that took 
the lives, I just have to tell you, I'm still troubled with 
your viewpoint on that and the fact that you don't believe it 
was a mistake in judgment.
    I want to ask you about Governor Blagojevich. In the answer 
to the questions of the Committee, you failed to mention what 
evidently was a very short-lived and early relationship in 
doing some legal work for them. On December 17, 2008 in a 
letter to Senator Specter, you said you never did substantive 
work on the Illinois gaming matter, and that the engagement 
never materialized. Mr. Chairman, I have a copy of the letter 
which I'd like included in the record, if I might.
    However, in response to an FOIA request to the Illinois 
Gaming Board, it appears that from an April 2, 2004 letter, 
that you had at least done enough research to submit a detailed 
first request for documents from the Gaming Board, and that you 
had at least one telephone conversation with the chairman of 
the Illinois Gaming Board. I would like this document placed in 
the record as well, which I will submit.
    [The information appears as a submission for the record.]
    Senator Coburn. But tell me how that is not substantive 
    Mr. Holder. Yes. I was going to say, the letter was drafted 
by an associate who I worked with, a very capable young man, 
and really only is of preliminary nature. We're asking for very 
preliminary documents. We did not receive any documents in 
response to that letter.
    The call that we had was, again, of a preliminary nature. 
That was something that we were trying to get things set up in 
terms of acquiring documents, figuring out what our 
jurisdiction was going to be, figuring out who we were going to 
report to, dealing with a conflict that existed between the 
State and my law firm. None of those things were ultimately 
resolved. We never got any of the material that we sought. We 
were never paid for any of the work that we did, and that's why 
we have described it in the way that we did.
    Senator Coburn. Okay. It's a reasonable explanation.
    Did you all ever send a bill for the hours worked by your 
    Mr. Holder. No, we did not.
    Senator Coburn. I want to go to one of the things that's 
troubled me tremendously, and that is that we have rules on our 
veterans who come back who--and I'm actually asking for a 
commitment, because we have a rule that says a veteran who is 
incapable at this time of not handling his affairs is 
adjudicated mentally defective and cannot own a gun. There's no 
trial that goes through for that, there's no true protection of 
his rights. This is through--not through statute, this is 
through regulation.
    And the current law prohibits individuals who are 
adjudicated as mentally defective from possessing a firearm. I 
don't have any problem with that, but by regulation, 
``adjudicated as mentally defective'' is defined as ``a person 
who is either a danger to himself or others'', which I don't 
have any problem with, or who lacks the mental capacity to 
contract or manage his own affairs. We have a lot of veterans 
coming back with closed head injuries who get better, but they 
ended up losing the rights to go hunting with their kids or 
their grandfather when they come back.
    Do you believe that this definition that is used in 
regulation is appropriate?
    Mr. Holder. I'm not familiar with this area of the law or 
that definition. What you've described, though, is a bit 
troubling. Of course, I think you're right: people can get 
well. To the extent that they do and have an ability, I 
suppose, to demonstrate that they are well, rights, then, I 
think, maybe perhaps ought to flow back to them. What I'd like 
to do is perhaps work with you on this.
    Senator Coburn. I'd be happy to send you a letter stating 
this out much more thoroughly and ask for your opinion and 
response to that, if we could get that.
    Mr. Holder. But I think you raise an issue that could be a 
legitimate one.
    Chairman Leahy. Thank you, Senator Coburn.
    Senator Coburn. I will yield back.
    Chairman Leahy. Did you have another question?
    Senator Coburn. Well, I have some but----
    Chairman Leahy. We're about to go into our--well, once 
Senator Whitehouse is over, we're going to go into our third, 
and final, round. But if you want, if you have one more 
question, I'm trying to give flexibility.
    Senator Coburn. Actually, I'm doing fine, Mr. Chairman.
    Chairman Leahy. Okay.
    Senator Coburn. Thank you for your graciousness.
    Chairman Leahy. Thank you.
    Senator Whitehouse.
    Senator Whitehouse. Thanks, Mr. Chairman.
    Mr. Holder, I just want to touch on one thing briefly, 
because there's been so much discussion in this room about 
whether President Clinton's decision in the FALN matter was 
reasonable. At the time in the pre-9/11 environment that 
prevailed then, there was substantial support for this, was 
there not?
    Mr. Holder. Yes, there was. The----
    Senator Whitehouse. I'm looking at a list here which is--
it's described as a partial list of the supporters, and it's 15 
pages long. And if I could just mention some of the names that 
are on it: former President Jimmy Carter; there are 11 members 
of the U.S. Congress; there are 5 members of the New York City 
council, which is interesting when you consider that the most 
grievous offense that the FALN committed was two bombings in 
1975 and 1977 in New York; numerous members of the New York 
legislature; the former mayor of the City of New York, David 
Dinkins; a formal resolution actually on behalf of the city 
council of New York.
    From the religious community, the United Church of Christ 
supported this in, it looks like one, two, three general 
synods, so they repeatedly did this. The General Conference of 
the United Methodist Church supported it. The Baptist Peace 
Fellowship of Northern America supported it. Back to New York 
City again, the presiding bishop of the Episcopal Church of New 
York City supported it. The General Secretary of the American 
Baptist Churches of America supported it. The Ecumenical 
Officer and President of the Council of Bishops of the African 
Methodist Episcopal Church supported it. The Puerto Rican 
Bishops Conference supported it. The President of the World 
Council of Churches supported it. The General Secretary of the 
World Council of Churches supported it.The Deputy General 
Secretary of the Young Women's Christian Association supported 
    I count five Nobel Peace Prize award recipients who 
supported it, and one Nobel prize for medicine recipient who 
supported it; two organizations that had received the Nobel 
Peace Prize, Amnesty International and Physicians Against 
Nuclear Weapons; and two family members of deceased Nobel Peace 
Prize winners, including--particularly relevant to all of us--
Coretta Scott King, of the United States.
    The President of the National Lawyers Guild. In fact, the 
National Lawyers Guild, by resolution, supported it, and on and 
on we go. So I just wanted to put those names in the record. We 
can all agree or disagree about this, but I think in context 
it's important to recognize some of the leading legal civil 
rights, Christian, and governmental organizations who were in 
support at the time.
    The other thing I wanted to touch on, is the Chairman had a 
wonderful hearing recently with some of the police chiefs. 
There's been a real conflict, I think, between homeland 
security and hometown security. Homeland security has had 
buckets of money and people have been able to buy, you know, 
scuba equipment, underwater vehicles, and train up for every 
possible thing you can think of, all of which is, you know, a 
good thing, but a lot of it has come at the expense of hometown 
security, cuts in police coverage, reductions of community 
policing. I ran a Community Prosecutor's Office when I was the 
Attorney General.
    I'd love to hear you--and the police officials who were 
present said that it had become very unbalanced, that in terms 
of the public safety effect in their own community, the people 
whose safety they were responsible for, they felt that they had 
a lot of resources for a very small risk with respect to 
homeland security, and very small resources for current, 
present, under the Bush administration, increasing violent 
crime risk in their communities, and that it was extremely 
disproportionate. From a sort of policy point of view, how 
would you propose to address that question? Do you see it as an 
unbalanced situation right now?
    Mr. Holder. Well, that's something that I'd want to work 
with the committee on and see whether or not, in fact, that 
imbalance exists. I don't want to get on the bad side of our 
my--our former colleague, Janet Napolitano.
    Senator Whitehouse. That's right. We can't get you in 
trouble with Janet Napolitano now.
    Mr. Holder. Who was a U.S. Attorney with the two of--with 
the two of us, and you know I don't want that to happen. But we 
really do need to put our money where there is the greatest 
harm, or potential harm. Obviously, defending our Nation and 
keeping our citizens safe is our primary objective, but that 
has a couple of components to it.
    We not only have to worry about criminals and terrorists 
from--from foreign shores, we also have to worry about 
criminals who are here and among us. And we cannot lose the 
progress that we made during the '90s, when we worked with you 
when you were Attorney General in Rhode Island, to see those 
crime rates really come down. We can't afford to see those 
crime rates creep back up. We have to do what we can to make 
sure that we maintain a lid on the crime that we started in the 
'90s, but at the same time protect us from--from terrorists.
    I think we can do both, but it really is a question, with 
the limited amount of money that we have, making sure that 
we're spending it in the appropriate places. And I would like 
to work with this Committee, and with Janet--Secretary 
Napolitano--in figuring that out. She and I are going to have a 
meeting, actually, I think next week, an informal meeting just 
to talk about that--those kinds of issues. I don't--I don't 
know she'll be as generous as she seemed to indicate in the 
conversation that we were having when we started talking about 
actual money, but we'll see. But maybe as a former colleague 
you might help me, Senator Whitehouse.
    Senator Whitehouse. Thank you, Mr. Holder.
    Thank you, Mr. Chairman.
    Chairman Leahy. I see these former U.S. Attorneys getting 
    Now, for those who want to know the schedule, we're going 
to begin our third, and final, round. I'll reserve my time for 
the moment and I will begin with Senator Specter. After we 
finish this round, this third and final round, we will have 
completed our time with Judge Holder, and then we will set a 
time--I haven't--I was going to consult with Senator Specter 
before we do. We'll set a time for the panel tomorrow, which 
will be the completion of the hearing. Judge Holder will not 
have to come back, obviously, for that. Depending on what time 
we finish tonight, Senator Specter and I will consult and set a 
time for the morning.
    Senator Specter.
    Senator Specter. Mr. Chairman, I understand your interest 
in concluding tonight and I'm agreeable to that, but not if 
it's going to cut us short on questions. You and I had 
discussed this for a few moments a minute ago. In the Attorney 
General hearings on Alberto Gonzales, which I chaired, Senator 
Kennedy had a total of 57 minutes. He had two 10-minute rounds. 
He wanted a third round, which was 22 minutes. He wanted a 
fourth round, which was 15 minutes. And so far, there have been 
15 minutes, 10 and 5. You're talking about another five, where 
you may extend it a little. That is insufficient for the 
questions I have on this confirmation.
    Chairman Leahy. Well, if Senator Kennedy comes back we'll 
give him extra time, but the----
    Senator Specter. I don't think it's funny, Mr. Chairman. I 
don't think it's funny.
    Chairman Leahy. I was at the Ashcroft--I have the chair. I 
was at the Ashcroft hearing, the Gonzales hearing, and the 
Mukasey hearing. The Mukasey hearing, we only had--the last 
hearing we had, we only--we had two full rounds. The only third 
round was just you and I. In the Gonzales hearing, there were 
three rounds, which we're having now. In the Ashcroft hearing, 
there were two rounds. Only you and I had a third round. Now, 
we're not going to have a different system because it's a 
Democratic administration than we had with a Republican 
administration. You are recognized for your third round.
    Senator Specter. Well, Senator Leahy, the Gonzales hearing 
was a Republican administration. That's exactly the same thing. 
A Republican was chairman of the Committee. There were requests 
for more questions and I acceded to those requests. I have 
other serious, important questions to ask and so does Senator 
Kyl, and so do others. I would like to find out from the 
Senators who are here. Senator Kyl, how many more questions do 
you have? How much more time do you need?
    Senator Kyl. Thank you, Senator Specter, for yielding. I 
would just suggest to the Chair, I have several more questions. 
I'm trying to go through them right now to get it down to the 
bare minimum. We can finish tonight. I have no intention of 
dragging this out. But I would ask for the same consideration 
that Democrats were given during the Gonzales hearing, nothing 
more than that. I think if we stop talking about this and just 
get on with the questions, we can finish, but we will need a 
little bit of additional time.
    Senator Specter. How much more time do you need, Senator 
    Senator Grassley. I don't know how to say how much time. I 
don't think it's--it's surely not as much time as I've used, 
but I do have the issues of congressional oversight, the False 
Claims Act, and whistle-blowers that I'd like to discuss with 
the Attorney General.
    Senator Specter. Senator Sessions.
    Senator Sessions. Well, I had thought we'd probably go into 
a third round, so I had expected to have two more 
opportunities. I didn't expect to finish tonight. There are 
some things I wanted to work on overnight. But the Ranking 
Member, I know, has been on top of this from the beginning.
    Senator Specter. Do you have an estimate of how much time 
you need?
    Senator Sessions. Fifteen minutes.
    Senator Specter. If everybody could do that, there would be 
some parameter and we could be more precise.
    Senator Sessions. Fifteen minutes.
    Senator Specter. how much more time do you need to finish?
    Senator Coburn. Well, Mr. Chairman, my suggestion is that 
you allocate, at a minimum, 15 minutes more for each Senator.
    Chairman Leahy. Why doesn't the Senator from Pennsylvania 
begin his questions? Let's hear where we go. A number of 
questions have been asked two or three times already. We can 
sit here all night long and ask the same question over and over 
and over and over again, which doesn't seem to accomplish 
anything for anybody. The--I would suggest the Senator from 
Pennsylvania begin his questions and let's see how we go.
    Senator Specter. Mr. Holder, turning to the issue of the 
request for independent counsel to investigate Vice President 
Gore on allegations that he had raised hard money from the 
White House in violation of Federal law during the tenure of 
Attorney General Reno when you were Deputy Attorney General, 
there was a strong recommendation by FBI Director Louis Freeh, 
Charles LaBella, designated by Attorney General Reno to make an 
independent evaluation as to whether there ought to be 
independent counsel, and a third attorney, Robert Conrad, who 
came in for the same purpose. All three of those made strong 
recommendations for the appointment of independent counsel.
    There were four witnesses who testified that Vice President 
Gore was at a meeting where there were discussions about 
raising hard money. Leon Panetta, who was one of the four 
witnesses, said, ``The purpose of the meeting was to make sure 
that he'', Gore, ``knew what the hell was going on.''
    Attorney General Reno discounted the testimony of one 
witness, David Strauss, who was Chief of Staff for Vice 
President Gore, who had a notation of 65 percent soft, 35 
percent hard. Couldn't remember what was said, Attorney General 
Reno did not acknowledge that as competent evidence, which it 
was under the hearsay exception of ``prior recollection 
recorded'', which is different from ``prior recollection 
refreshed''. He didn't qualify for ``prior recollection 
refreshed'', but he did for ``prior recollection recorded''.
    There were 13 memorandum from Harold Icches to the Vice 
President from August of 1995 to July of 1996 containing 
divisions as to hard money and soft money, also, the Federal 
contributions, which is the equivalent of hard money 
    Vice President Gore testified that ``the subject matter of 
the memorandums would have already been discussed in his and 
the President's presence''. The Vice President further 
acknowledged that he ``had been a candidate for 16 years and 
had a good understanding of the hard money''.
     Now, the applicable law states that where there is a 
preliminary investigation which determines there are reasonable 
grounds to believe that further investigation is warranted, it 
seems to me, as it seemed to FBI Director Freeh, Charles 
LaBella, and Robert Conrad, that independent counsel should 
have been appointed. Independent counsel was not appointed.
    I chaired the subcommittee hearings that went into this 
issue in great detail, and it seemed obvious that Vice 
President Gore was being favored. If it hadn't been the Vice 
President, the superior, that independent counsel would have 
been appointed. Shouldn't independent counsel have been 
appointed in that matter?
    Mr. Holder. No, I don't believe so, Senator Specter. Louis 
Freeh, Chuck LaBella, are very good lawyers and people who I 
respect and people who, coincidentally, are supporting my 
nomination to be Attorney General. There were--they had their 
view of that matter. We had career lawyers at the Public 
Integrity section who had a contrary view. Attorney General 
Reno and I looked at those conflicting recommendations or 
conflicting views of the case and made the determination that 
we thought that which was expressed by the Public Integrity 
Section was stronger, was more reflective of both the facts and 
the existing law, which is not in any way to take away from--
from Louis Freeh and Chuck LaBella.
    These are people who are friends of mine who are great 
lawyers, and I certainly respected the opinions that they 
shared with us. In fact, that gave me pause. The fact that we 
had those kinds of recommendations coming from people that I 
respected, it made me think twice about where we were going. 
But ultimately, our determination was that the Public Integrity 
Section lawyers made the better call.
    Chairman Leahy. Well, the time of the Senator from 
Pennsylvania has expired. Certainly feel free to continue. I 
just want to make sure I understood one thing. Mr. LaBella and 
Judge Freeh are both supporting you as Attorney General, is 
that correct?
    Mr. Holder. That's correct. Mr. Freeh, I think, is going to 
be testifying tomorrow, and both have submitted letters.
    Chairman Leahy. Please go ahead, Senator.
    Senator Specter. Mr. Chairman, I would appreciate it if my 
line of questioning was not interrupted.
    Mr. Holder. I'm sorry, Senator. I didn't----
    Senator Specter. You didn't interrupt it.
    Mr. Holder. Oh.
    Senator Specter. I'm not talking to you. I'm talking to 
    Chairman Leahy. I think the only reason I interrupted is 
because your time had run out and I was trying to give you a 
little extra time.
    Senator Specter. Well, you could have accomplished that 
without bringing up collateral matters to interrupt the train 
of the inquiry. There's no doubt that the Chairman would have 
had other time to make any comments he wanted. He runs the 
    Do I understand you to say that you think that was a proper 
decision, Mr. Holder, not to appoint independent counsel, and 
if you're confirmed and a similar situation arises, that you 
would not appoint a special prosecutor? We don't have an 
independent counsel status, but we have the equivalent of a 
special prosecutor. Are you saying that if you're confirmed 
you'll stand by that kind of a judgment?
    Mr. Holder. I'm saying that I will stand by the judgment 
that I made then, and also assure you and the American people 
that I'll look at the law, the facts, and make the appropriate 
determination. And if an independent counsel, a special 
prosecutor is warranted, I will do that.
    Just for some perspective, one of the things that people 
talk about is perhaps we were trying to favor Al Gore. Well, we 
certainly didn't favor Al Gore when we decided to make that 
rescue of Elian Gonzalez in Florida, a critical state, as it 
turned out. Vice President Gore criticized the decision to make 
that--to do that operation. Maybe that cost him the State, I 
don't know. But Attorney General Reno and I certainly did not 
show him any favoritism then, and we certainly didn't show him 
any favoritism with regard to the matter that we are talking 
about here. Our determination was based really on the facts and 
the law.
    Senator Specter. Well, you have your judgment which you've 
expressed, and you stand by it, and I have my judgment. I don't 
think it's a closed question. I don't think that, on the basis 
of that evidence, if it hadn't been the Vice President, if it 
hadn't been a superior, somebody to favor, been John Doe, 
independent counsel would have been appointed. I think it's so 
clear, that it raises a question in my mind as to your fitness 
for the job.
    Mr. Holder. With all due respect----
    Senator Specter. Let the record----
    Mr. Holder. With all due respect, Senator, you are a good 
lawyer. I'd like to think of myself as a good lawyer. Good 
lawyers frequently disagree about these kinds of things. I 
don't question your integrity, veracity. I respect your opinion 
in the way that I would hope that you would respect mine. It 
was not done for any reason other than what I would consider a 
neutral assessment of the material that we had in front of us.
    Senator Specter. You are an excellent lawyer, Mr. Holder, 
if you wouldn't--if you weren't such a good lawyer, I wouldn't 
be so surprised. If you were a poor lawyer, an inexperienced 
lawyer, not a real professional, I could say, well, he doesn't 
know any better. But my evaluation is that a man in your 
position knew better. That's the whole point. But you've 
expressed yourself and I've expressed myself.
    Mr. Holder. Senator, we're getting close to a line here. I 
will certainly understand a difference of opinion, but you're 
getting close to questioning my integrity, and that--that is 
not appropriate. That's not fair. That's not fair, and I will 
not accept that.
    Senator Specter. What's not fair?
    Mr. Holder. To suggest that the decision that I made in the 
case, along with Attorney General Reno, supported by career 
lawyers from the Public Integrity Section, was anything other 
than a call on the facts and the law. There was never any 
attempt on the part of any of those people, those career 
people, the Attorney General, or this Deputy Attorney General 
to do something that was inappropriate or that favored Vice 
President Al Gore. That was not the case.
    Senator Specter. Well, you're telling me what you think 
about it.
    Mr. Holder. That's fine.
    Senator Specter. And I'm telling you what I think about it.
    Mr. Holder. That's fine.
    Senator Specter. And when I look at Marc Rich and the 
circumstances surrounding that, you gave a pardon to that guy 
who was a fugitive with that terrible record. And you have 
Roger Adams calling you at 1:00 a.m. It looks to me like 
there's favoritism to give cover to President Clinton. We talk 
about FALN. That's inexplicable to me. We all have been over 
all the facts as to how you have the professionals opposing 
clemency. They give you a report opposed to clemency. Then you 
want them to change their report in order for you to have 
cover. So I have to make a determination on my vote looking at 
the totality of your record, which overall we appreciate.
    Mr. Chairman, may the record show that it is 5 minutes and 
27 seconds, so that I have now had----
    Chairman Leahy. Actually, it is 10 minutes and 31 seconds, 
because that is 5 minutes plus your 5 minutes.
    Senator Specter. May the record show that it is 25 minutes, 
25\1/2\ minutes, so that on the Kennedy standard, I only have 
21\1/2\ minutes left.
    Thank you, Mr. Chairman.
    Chairman Leahy. If the Senator is finished his time, then 
Senator Grassley. You are on your third and final round, and I 
appreciate the----
    Senator Grassley. You missed----
    Chairman Leahy. No. Senator Specter wants to make sure you 
are all given extra time, and that is what I am doing, as I did 
for Senator Specter. I appreciate your taking only the 10 
minutes instead of----
    Senator Specter. Well, Mr. Chairman, I am not finished yet.
    Chairman Leahy. Well, then finish your questions within a 
reasonable amount of time. You are now on the third round of 5 
minutes each. You have gone 10 minutes into it. Do you want 
more time in your third round? Because there will not be more 
than three rounds.
    Senator Specter. Mr. Holder, when you came to see me for 
the so-called courtesy call, I showed you a letter which I had 
written to Attorney General-designate Gonzales, and I have 
written a similar letter to you and handed it to you. But you 
had a chance to see it at that time, and I gave you notice 
about it.
    This is the parameter and the scope of congressional 
oversight, and the essence of the letter is a conclusion by a 
Congressional Research report about the scope of appropriate 
congressional oversight. And it says in part that DOJ 
consistently obliged to submit to congressional oversight, 
regardless of whether litigation is pending, so that Congress 
is not delayed unduly in investigating misfeasance, 
malfeasance, or maladministration at DOJ or elsewhere. In the 
majority of instances reviewed the testimony of subordinate DOJ 
employees such as line attorneys and FBI field agents was taken 
formally or informally and included detailed testimony about 
specific instances of the Department's failure to prosecute 
alleged meritorious cases. In all instances, investigating 
committees were provided with documents respecting open or 
closed cases that included prosecutorial memoranda, FBI 
investigative reports, summaries of FBI interviews, memoranda 
and correspondence prepared during the pendency of cases, 
confidential instructions outlining the procedures or 
guidelines to be followed for undercover operations in the 
surveillance and arrest of suspects and documents presented to 
grand juries not protected from disclosure by Rule 6(e).
    Do you accept that as the appropriate legal standard for 
congressional oversight?
    Mr. Holder. Well, I would say this, Senator. Congressional 
oversight of Justice Department activities is obviously very 
important, and I will respect Congress' role. In general, I 
will work to keep the Committee fully informed of the 
Department's policies and programs.
    Now, there are limits, I think, to what we can say about 
ongoing law enforcement matters, including grand jury testimony 
that might jeopardize an investigation. That would be a concern 
I would have, and also a concern about the impact of revealing 
that kind of information and the chilling effect it might have 
on line lawyers, but will work to cooperate with you to make 
sure that you have access to the materials that you need so 
that the oversight that you conduct would be meaningful.
    Senator Specter. Well, I take that to be a ``no'' answer.
    Mr. Holder. Well, I am not--this seems a bit broad to me.
    Senator Specter. Well, Mr. Holder, may I suggest this: that 
you take a look at it, study it more fully, and give me a 
response in writing as to whether you would accept that as the 
appropriate range of congressional oversight? Or if you 
disagree with any part of it, tell me which part you disagree 
with that?
    Mr. Holder. I would be glad to do that, Senator.
    Senator Specter. Mr. Holder there have been suggestions for 
a revival of the so-called fairness doctrine, and my question 
to you is: Do you think that as a matter of public policy, the 
so-called fairness doctrine ought to be reinstated?
    Mr. Holder. Senator, that is a topic I have not given an 
awful lot of thought to. If I could perhaps submit an answer to 
you in writing after I have had an opportunity to think about 
    Senator Specter. That would be fine.
    Mr. Holder. I wouldn't want to commit myself to something 
and not give you the benefit of what is my best thinking on 
    Senator Specter. Well, this is a subject which I did not 
take up when we had our so-called courtesy call, so that would 
be fine. I will propound some questions to you in writing on 
that because I want you to answer also the constitutional 
question, if you would.
    Mr. Holder. Sure, that is fine. You have been very generous 
in sharing with me, both at the meeting and in the address you 
did on the floor, with laying out for me, I think in a very 
generous fashion, the things that I could expect at the 
hearing. And I called you to say that I appreciated that.
    Senator Specter. Senator Leahy asked you about a reporter's 
shield. You said you would be willing to consider it. We had a 
reporter held in jail for 85 days on the allegation that a 
source was not disclosed. At all times, the special prosecutor 
in the case knew where the leak came from. I would appreciate 
it if you would be a little more definitive in your response. I 
do not want to protract the discussion now.
    Mr. Holder. That is fine.
    Senator Specter. Because I want to give my colleagues 
plenty of time, so----
    Mr. Holder. Well, let me just say this, Senator. Maybe I 
wasn't as clear as I could have been. I actually favor such a 
measure. All I was saying was that I would want to work on what 
it would actually look like. There is a piece of legislation, I 
understand. There are going to be concerns, I can tell you, I 
am sure, within the Department. I would want to work with you 
on that. But my position is that I think something can be 
crafted to deal with the issues that you have raised and the 
concerns I know I am going to hear at the Justice Department. 
But I am in favor of a shield law.
    Senator Specter. Well, the critical question is the 
national security issue. If you would take a look at that and 
give me and us your judgment, I would appreciate it.
    Mr. Holder. Okay.
    Senator Specter. The issue of--which is the topic that we 
started with, we started with you. And my sense is that there 
are two fundamental principles involved here. One is the right 
to counsel, Sixth Amendment right to counsel, and an integral, 
indispensable part of that is freedom of communications to a 
lawyer. The second principle is the State or the Commonwealth, 
which I used to represent, has the obligation of the burden of 
proof. And it seems to me that the prosecutor ought never to 
try to prove his case out of the mouth of the defendant. And I 
don't know if you anticipated where your memorandum would lead, 
but it has led to some pretty tough situations with the 
Southern District case denying counsel fees and finding by the 
district Federal judge a violation of Sixth Amendment rights 
upheld by the Second Circuit.
    I would like you to respond to that in writing, too, as 
opposed to an extensive dialogue here.
    Mr. Holder. Sure. I would be glad to, although I will note 
that I think the progress that we have made in this area, in 
walking it back from what I think people in the field have 
done, was largely as a result of the work that you and Chairman 
Leahy did in expressing concerns about positions the Justice 
Department was taking that, frankly, I think were inconsistent 
with that initial memo of mine. So I would be glad to respond 
to the questions that you will propound to me.
    Senator Specter. Thank you, Mr. Holder, for being a patient 
    Mr. Holder. Thank you.
    Senator Specter. A witness with a lot of stamina. It is an 
important attribute for this job. Thank you, Mr. Chairman.
    Mr. Holder. Thank you, sir.
    Chairman Leahy. Are you finished your questions? I am not 
going to cut you off. This is your last round.
    So you are you done?
    Senator Specter. Yes. I understood the parameters.
    Chairman Leahy. Okay. I just wanted to make sure you felt 
you had enough time.
    Senator Specter. This is the last tango. I will have some 
more questions in writing, but that is----
    Chairman Leahy. Senator Grassley.
    Senator Specter. Oh, Mr. Chairman, I want to put into the 
record with unanimous consent as a pro forma matter a whole 
series of documents, and also the editorials, without taking 
the time to enumerate them.
    Chairman Leahy. Of course. Of course. Also, we have an 
enormous number of letters in favor of the nominee. We have 
some opposed to the nominee. They will all be put in the 
    Yes, go ahead, Senator Grassley.
    Senator Grassley. Mr. Holder, when we met several weeks 
ago--and I thank you for coming and visiting with me for a long 
period of time, I talked to you at length about my 
congressional oversight efforts and how I take this 
constitutional responsibility very seriously. Oversight help 
makes Government more transparent. The taxpayers have a right 
to know whether the taxpayers' money is being appropriately 
spent. We have got waste, fraud, and abuse rampant in any 
administration. In my opinion, oversight is a particularly 
important issue for any nominee in your position because of the 
critical work that your Department does in its support of law 
enforcement agencies, particularly the FBI.
    So I hope you appreciate the role that Congress has in 
conducting oversight over the activities of the executive 
branch, including your Department. Over the years, I have made 
congressional oversight a top priority regardless of which 
political party is in the White House. I have requested 
documents, information, access to DOJ personnel for interviews, 
and I have learned that oversight works best when the agency 
fully cooperates with Congress. Unfortunately, agencies are all 
too often untimely in responding to Congress, and in the worst 
cases totally unresponsive. This is unacceptable and I hope you 
    Mr. Holder, I expect that you will be responsive to my 
oversight work and that my questions and document requests will 
be taken seriously and answered in a timely and complete way. I 
hope that I have your assurance that, if you are confirmed, you 
will assist me with oversight activities, be responsive to my 
requests, help me make the Justice Department as accountable in 
this coming administration as I have attempted to make it 
accountable in previous administrations, both Republican and 
Democrat. But the idea is to make it more accountable to the 
American people.
    That is an expectation on my part. You can respond if you 
want to. But would you pledge to be responsive to all 
congressional requests for information and provide this 
information to Congress in a timely manner? And before you 
answer that, I would like to point out a particular problem 
that I have had over a period of years. Would you work--and 
this is specifically in your position as Attorney General, 
being over everything in the Department, including the FBI. 
Would you ensure that responses are not held up due to lengthy 
what they call ``clearance processes'' at subordinate agencies 
such as the FBI?
    Mr. Holder. Senator, I will, in response to, I guess, the 
general assertion, try to do all that we can to make sure that 
we respond fully and in a timely fashion to the very legitimate 
questions that I know that you have propounded to the 
Department. And to the extent that there is a problem with our 
internal processes, I will look at those and try to make sure 
that we make them work better.
    What I would hope that we would have is a relationship 
where, if you are not getting something in what you consider a 
timely fashion, that you will feel free to give me a call, pick 
up the phone, and say, you know, with regard to subject matter 
A, I sent this whenever, I have not received a response, so 
that you are not upset by our lack of response, at least give 
me an opportunity to check on the internal workings of the 
Department to make sure that we are doing it as quickly as we 
can. And if we are not, if I can't give it to you, at least I 
can give you an explanation.
    Senator Grassley. Then in that regard, you will remember I 
gave you a notebook of things that were unanswered, and I would 
hope you would help us clear those up so that you, taking over 
a Department in a new administration, have a clear slate and, 
you know, 6 months from now there is no question what you are 
responsible for or what the previous administration was 
responsible for.
    On the issue of whistleblowers, as you might know--or at 
least I think I have told you--I have been an advocate for 
whistleblowers because I value candid, unfiltered information 
they provide to Congress about the executive branch activities. 
And, quite frankly, most of the time they come to Congress as a 
last resort. They probably don't even know about whistleblower 
protection, but something is bad. They tend to be very 
patriotic people, for the most part, want Government to do just 
what is right.
    Anyway, many whistleblowers who often come forward, they 
face tremendous retaliations in agencies, and that retaliation 
may be as straightforward as being terminated. It could be 
cloaked as a reassignment or shifting in duties. Either way, 
retaliation is exactly why we passed the Whistleblower 
Protection Act and countless other laws. These laws are a vital 
tool to ensure that whistleblowers are protected, but 
oftentimes that does not mean that the wrongdoers are 
disciplined by their agency. This is especially true in law 
enforcement agencies like the FBI, I have found out.
    So, you know, I just ask you to take a look at that. Take 
it seriously. They deserve the same protection and 
consideration whether in the FBI or anyplace else. 
Whistleblowers who raise concerns with management or who bring 
concerns to Congress and cooperate with congressional oversight 
efforts should be protected, not retaliated against.
    So can you give me a commitment that you will not retaliate 
against Justice Department whistleblowers and instead work with 
them to address concerns that they raise? Will you commit to 
ensuring that every whistleblower is treated fairly and that 
those who retaliate against whistleblowers are held 
accountable? And particularly on that last point, there are so 
many times that injustice has been done, the people that did it 
to them have never been held accountable.
    Mr. Holder. Yes, I can make those pledges both to ensure 
that people are given the opportunity to blow the whistle and 
they will not be retaliated against, and then to hold 
accountable anybody who would attempt to do that. I have worked 
with people, whistleblowers, both in Government and more 
recently in private practice, and I have seen their utility, 
their worth, and, frankly, the amount of money that they return 
to the Federal Government. And they serve a very, very useful 
    Senator Grassley. Can you give me--since you have been in 
Government in the past, just as an example, how have you dealt 
with whistleblowers, and particularly if they didn't agree with 
maybe a policy or something, or a position on a particular 
matter with you, if you have ever--or maybe you have not dealt 
with whistleblowers.
    Mr. Holder. I have dealt with whistleblowers. I don't think 
that I have ever dealt with a whistleblower who has had a 
problem with a particular policy. I have not had that kind of 
interaction where somebody was complaining about something. The 
relationships and interactions that I have had with 
whistleblowers have generally been pretty positive, even, as I 
was saying, in the work that I have done in private practice, 
dealing with the lawyers who are representing the 
whistleblowers. I tried to represent my clients as zealously as 
I could, but I could understand what they were doing, and I 
could see the worth to the Federal Government by the actions 
that they had taken.
    Senator Grassley. I had a couple other questions there, and 
I just hope that you would take some sort of positive approach, 
a statement or something like that, early on in your taking 
over the Department to make sure that there is a friendly 
atmosphere. I wish a President of the United States, previous 
and this one coming up, would have done that, because I think 
at the highest level of Government, it would send a signal, you 
know, that if something is wrong, we want to find out about it. 
After all, the public's business ought to be made public. And 
if it takes a whistleblower to get it done, do it.
    I am not going to ask questions about the False Claims Act, 
but I think I expressed to you in my office, as author of that 
legislation, it has brought in $20 billion that maybe would not 
have been found without people in Government knowing about it 
and bringing cases themselves, some of them with the help of 
the Justice Department. And it has had some problems. I have 
got some legislation I am going to show you that would correct 
some things that have, in a sense, weakened it from original 
intent, that I think I have got broad bipartisan support to get 
passed, and I would surely appreciate very much your 
considerations of those. And anything specific I have on False 
Claims, I will submit along with a lot of other things for a 
response in writing.
    But just so you know, I think the False Claims Act, 
originally in defense and now in health care, has been a very, 
very important tool for us to root out fraudulent use of 
taxpayers' money and gaming the system for personal benefit. 
And so I hope you will use it, help people that use it, move 
cases forward, you know, things of that nature.
    Mr. Holder. Yes, I will do that, Senator. You and I have 
worked together before on False Claims Act matters, and I will 
continue to have that level of cooperation with you. You raise 
good points.
    Senator Grassley. I believe I am done, totally done, Mr. 
    Chairman Leahy. Thank you, and I appreciate you giving that 
time. As I said, I have tried to arrange it, and I know, 
Senator Kyl, you have some more questions.
    Senator Kyl. Thank you, Mr. Chairman.
    Chairman Leahy. I would appreciate your effort to keep them 
within a----
    Senator Kyl. I have really whittled them down here.
    Senator Specter raised the question of compelling testimony 
for reporters. The Department of Justice guidelines relating to 
subpoenas for reporters have been around about 28 years, to my 
knowledge, and they were used when you were at the Department 
of Justice, were they not?
    Mr. Holder. Yes, they were.
    Senator Kyl. Among the people who have written about this, 
U.S. Attorney Patrick Fitzgerald has written, and I quote, that 
``The Justice Department operates under rigorous regulations 
restricting the issuance of subpoenas to journalists.'' Do you 
know of any serious problems with the Department of Justice 
    Mr. Holder. With regard to the subpoenaing of reporters?
    Senator Kyl. Yes.
    Mr. Holder. Nothing that comes to mind.
    Senator Kyl. And just so you will know, I am not trying to 
trap you on it. This is a very controversial matter, and some 
of us believe that the Department of Justice guidelines have 
served us very well. I am not aware of any serious problems 
with them either, but there are proponents of the legislation 
who would obviously go beyond them.
     We received several letters last year from members of the 
administration expressing concerns. I am going to boil this 
down, but Attorney General Mukasey and Director of National 
Intelligence McConnell wrote a couple of those letters. Their 
views in the letter expressed, and I am quoting here, ``serious 
concerns, especially with regard to the bill's effect on our 
ability to protect the national security and investigate and 
prosecute the perpetrators of serious crimes.'' That was April 
22nd of last year.
    I am just going to read one other slightly longer 
paragraph. They say, ``We oppose this bill because it will 
undermine our ability to protect intelligence sources and 
methods and could seriously impede national security 
investigations. Indeed, this bill only encourages and 
facilitates further degradation of the tools used to protect 
the Nation. We have been joined by the Secretary of Defense, 
the Secretary of Energy, the Secretary of Homeland Security, 
the Secretary of Treasury, and every senior intelligence 
community leader in expressing the belief, based on decades of 
experience, that by undermining the investigation and 
deterrence of unauthorized leaks of national security 
information to the media, this legislation will gravely damage 
our ability to protect the Nation's security.''
    I am not going to go into all of the issues. As I said, I 
boiled it down a little bit. But let me ask you about just some 
that they have raised.
    One problem they raised--I don't know whether this is 
inadvertent or not, but the bill applies only prospectively. It 
does not apply to investigations once the harm has occurred. So 
you could get into investigations pre-9/11, but on 9/12 you 
would not be able to require testimony for acts that have 
already occurred.
    Would you agree that a media shield bill should allow the 
Government to investigate serious harm both prospectively and 
with regard to harm that has already occurred?
    Mr. Holder. Well, Senator Kyl, you have raised a series of 
concerns that I think have to be taken seriously. What I was 
trying to say earlier was that I think that a bill can be 
constructed that would handle or deal with the concerns you 
have raised, and perhaps others that you are going to raise, 
and still deal with what I think are the salutary parts of the 
legislation. There is a value on--the concerns you raise are 
legitimate ones. On the other side, the notion of having a free 
press and protecting reporters and their sources I think is 
something that also has to be put in the mix, which I am not 
saying that what you are saying is not substantial, and it must 
be dealt with. Concerns about prosecuting people who leak 
national security matters, the concern about intelligence--all 
of those things have to be dealt with, from my perspective, 
before I would sign off on a particular bill.
    What I was saying is that I think the concept is a good 
one, and I think there is a way in which we can find a good 
bill ourselves.
    Senator Kyl. And I appreciate the Department of Justice 
guidelines recognize a concept. The question is whether you go 
beyond that. I am just trying to get your view on a few 
specific matters: One, whether there should be any difference 
between a prospective or investigation into something--trying 
to get information or investigate a terrorist act, for example, 
that has not occurred yet versus investigating one that has 
already occurred, from which, of course, you might get very 
good information.
    As a general proposition, can you think of a reason why 
there should be a distinction between the two? It is one of the 
problems in the draft of the bill that I believe exist, and 
General Mukasey and Director McConnell identified as well.
    Mr. Holder. Okay. I would want to look at that and 
understand it a little better.
    Senator Kyl. Okay. You have discussed already the need to 
try to protect as much as possible classified information. One 
of the concerns is the requirement that a media shield bill 
should deal with classified information in camera; that is to 
say, if it is going to be involved, at least protect it because 
it is classified. Can you think of any reason why that general 
principle should not be applied to legislation like this?
    Mr. Holder. Again, I would want to look at the provisions 
of the bill, understand the concern, which sounds like a very 
legitimate one, the ones you have now raised, and try to 
understand why that perhaps was not included in the bill, or 
just understand how the bill treats the concern you have just 
    Senator Kyl. I gather it is safe to say that some of--we 
have been working on specifics of this bill for some time. You 
haven't. And it is going to be difficult for you to express a 
view about some of the specific issues that have arisen. That 
is the reason for your general reluctance to be too specific, 
    Mr. Holder. That is correct.
    Senator Kyl. Let me try just with respect to a couple of 
other general principles. One of the things that General 
Mukasey and Director McConnell say in their letter is that the 
bill leaves out--I am quoting now--``leaves out key non-FISA 
tools that are essential to the protection of national 
security: the wiretapping provisions of Title III, pen register 
trap-and-trace authority, and national security letters. All of 
these tools are important,'' they say.
    Just as a general proposition, can you think of any reason 
why they wouldn't be allowed to be used?
    Mr. Holder. Again, speaking very generally----
    Senator Kyl. Excuse me. Why a media shield law would 
preclude our law enforcement from using those tools.
    Mr. Holder. Again, not having had the experience with the 
bill or in this area that you have, I am not sure I would want 
to commit myself. But, again, that sounds like an issue that is 
very worthy of consideration.
    Senator Kyl. Rather than trying to pursue more specifics 
here, let me ask a couple of general questions.
    Would you work to address the concerns raised in this 
letter and the other letters that have been written, as well as 
the views letters expressing the concerns of the Department of 
    Mr. Holder. Yes, absolutely. I mean, I don't want you to 
leave here thinking that you have got some press crazy here as 
potentially Attorney General.
    Senator Kyl. No, I do not believe that at all. Just these 
are really important.
    Mr. Holder. They are.
    Senator Kyl. And the career people at the Department have 
really been expressing a lot of views to us. Would you tell us 
that you will talk not just to the political appointees but to 
the career people in the Department who have really worked with 
these issues for a long time?
    Mr. Holder. Absolutely. But beyond that, Senator, I want to 
talk to you and to people who have worked on this bill and who 
might have a contrary view of it.
    As I said before, I guess in my opening statement, you 
know, knowledge doesn't reside only in the executive branch. 
The experience that you have had with this, the obvious 
knowledge that you have of these issues are the kinds of things 
that I need to be educated about. It may change my mind, 
    Senator Kyl. One thing just in that regard that would be 
very useful--I mean, I presume eventually if this legislation 
is introduced and goes somewhere, we will have a hearing on it. 
And I would request and would hope that you would be willing to 
testify. Hopefully your views will have been crystallized. I 
mean, we should not act on this until you have had an 
opportunity to study it, to get your views crystallized, and 
that you would be willing to testify in a hearing relating to 
the subject on such a bill.
    Mr. Holder. I would be glad to.
    Senator Kyl. I mentioned Secretary Gates' letter. It is a 
separate letter, actually. Actually, he has written two 
separate letters, and I will not go into any of the those 
details. He simply talks about past investigations of 
unauthorized disclosures that have gravely damaged our national 
security. He talks about circumstances in which the bill would 
permit this kind of activity to occur. He says the 
restrictions--the limitations of the bill remain far too 
restrictive, and he also criticizes the fact that the 
definition would extend the protection to leaks publicized to 
individuals who are not even journalists as that concept is 
normally understood, to quote him in here.
    Secretary Gates will continue to serve in the Obama 
administration, and I would hope that you would seek his views 
and address his concerns as well, would you not?
    Mr. Holder. I am sure he will be asking me about this at 
the next--at a Cabinet meeting, should I be confirmed. He will 
be wanting to know why am I in a fundamentally different place 
than he is. But I will have that conversation with him.
    Senator Kyl. I am sorry. I guess I did not understand the 
preamble to what you----
    Mr. Holder. I was saying that on the basis of what you have 
just said about the concerns raised by Secretary Gates, and 
should I be confirmed, I might expect to hear from him at a 
Cabinet meeting about why I was in the position that I was in.
    Senator Kyl. Okay. And, finally--and I don't know--I gather 
Director Mueller will be around for a while, but he, too, has 
weighed in, along with 11 other senior members of the 
intelligence community. And, again, I will not quote from his 
letter. He expresses strong opposition. But I would just ask 
you to agree to be sure and speak with him about the concerns 
he has and to try to address the concerns that he has 
specifically talked about--national security and foreign 
intelligence. Would you be willing to do that?
    Mr. Holder. Yes. As I said----
    Senator Kyl. As we say in depositions, you need to give an 
audible answer to the question.
    Mr. Holder. Thank you.
    Senator Kyl. The last question I have on this subject--and 
it will be the last question I have for you--I mentioned U.S. 
Attorney Patrick Fitzgerald before. He has written on this, and 
one of the things he noted--and he is exactly right, in my 
view. He said, ``A threshold question lawmakers should ask is 
whether reporters will obey the law if it is enacted.'' In 
other words, if you are trying to do a favor there, then that 
should set out the guidelines by which people conduct 
themselves. ``They''--meaning lawmakers--``should ask, because 
the Reporters Committee for Freedom of the Press calls for a 
shield law, while urging journalists to defy the law when a 
court upholds a subpoena for source information.'' So here is 
the solution to it, and I am going to ask you if you think this 
would work.
    His view is that any shield bill should require that a 
person seeking its protection first provide the subpoenas 
information under seal to the court to be released only if the 
court orders the information disclosed. That way the individual 
gets both the protection of the law, but also would--his part 
of the bargain is if the court should rule that the law still 
does not apply, then he has to disgorge the information that 
the public would, therefore, have the benefit--or not the 
public, but that the law would, therefore, have the benefit of 
that information, if that is the way the court ruled.
    Do you think it is sensible to have such a requirement in 
such a bill?
    Mr. Holder. Well, again, I am not as steeped in this as I 
will be and should be, but that does strike me as somewhat 
reasonable. But I say that with the understanding that perhaps 
I would have a chance to just become more familiar with the 
law, the response of that reporters group that you have 
mentioned, and see whether that would have an impact on my 
    Senator Kyl. There is no reason that you should be as 
steeped in this as some of us who have been working on it for a 
long time. But, certainly, it is a very serious matter, as all 
of these individuals have indicated. It will require some 
attention on your part, and I commend, assuming you are 
confirmed, to you that you begin studying up on this so that, 
should it be considered here, we would have the benefit of your 
views on that, and I look forward to conversations with you 
about how to approach this subject.
    Thank you.
    Mr. Holder. Thank you, Senator.
    Chairman Leahy. Is that it? And I am not suggesting you ask 
    Senator Kyl. I narrowed it down to the best of my ability. 
There is much more. If I have anything else, I will ask the 
question in writing or just----
    Chairman Leahy. I appreciate your cutting it down like 
    Senator Sessions, I think you said you had one or two more? 
He said hopefully.
    Senator Sessions. And you said see if I can do better. I 
can't speak as fast as Senator Kyl, though. We Southerners are 
a little slower.
    In an April 2004 speech to the American Constitution 
Society, a liberal group, you asked the audience what it could 
do to bring about a liberal renaissance, which is a legitimate 
political effort to promote your beliefs, and you singled out 
the media and criticized them for impeding liberal views and 
said, ``In the short term, this will not be an easy task with 
the mainstream media somewhat cowered by conservative critics 
and the conservative media disseminating the news in anything 
but a fair and balanced manner. And you know what I mean there. 
The means to reach the greatest number of people is not easily 
    So we do have this discussion of the fairness doctrine. Do 
you think the Government has the ability to interject itself in 
the free market of ideas and direct somehow that there be a 
balance between one view and another view on the airways?
    Mr. Holder. Well, the views I was expressing there were 
views that I had as a private citizen, would not reflect what I 
would do if I were confirmed as Attorney General. What I had 
said in response to the question that had been raised earlier 
about the fairness doctrine is that I just needed to know more 
about it before I could intelligently respond to the question. 
But I did not mean to implicate the fairness doctrine in that 
    Senator Sessions. That is important, I think. I just think 
that is a trail that is doomed to failure for some Government 
bureaucrat trying to state what somebody can say on the public 
    Also before the American Constitution Society, you spoke 
about the Boumediene decision that for the first time granted 
habeas corpus rights to detainees, prisoners of war, or illegal 
combatants that were being held at Guantanamo Bay. Justice 
Scalia, I would note, in dissent said, ``It would almost 
certainly''--this decision ``will almost certainly cause more 
Americans to be killed.''
    You said this: ``The very recent Supreme Court decision, by 
only a 5-4 vote, concerning habeas corpus and Guantanamo is an 
important first step, but we must go much further.''
    I thought that this decision was really a radical departure 
from precedent. Never in the history of England, where we 
inherited habeas corpus rights, or in the United States have 
prisoners of war ever been given habeas rights. But the Supreme 
Court held that.
    What do you mean, ``we must go much further'' ? Do you have 
ideas that you would like to impose, apparently not required by 
the Constitution, but that would further constrict our ability 
to hold those who are at war with the United States?
    Mr. Holder. No, I guess when I said ``go further'' there, 
that was, I think--2004? I am not sure. I think 2004.
    Senator Sessions. 2008. That was a June 2008 speech, I 
    Mr. Holder. Okay.
    Senator Sessions. It would not be 2004 because the decision 
was after 2004.
    Mr. Holder. Oh, after Boumediene, okay. Well, I am not sure 
what I had in mind there other than the concern generally that 
was expressed throughout the course of that speech about our 
Government making sure that, however bad the people were we had 
in Guantanamo, in the same way, I guess, that Senator Graham 
had mentioned earlier, that these people were treated in a way 
that was consistent with our values. So I might have been 
referring to that. I am just not sure.
    Senator Sessions. Well, just in my view, it is unthinkable 
that prisoners of war, particularly those who do not comply 
with the rules of warfare and violate the Geneva Conventions, 
would be given the same rights as an American citizen accused 
of a crime. It had never been done until this decision, and we 
have tried to--it was based on statutes, I think, rather than 
the Constitution, and we are trying to wrestle with that and 
maybe make that situation better.
    Let me ask this. I asked you earlier about your commitment 
to your statement where you said that you planned to ``work to 
strengthen the activities of the Federal Government that 
protect the American people from terrorism.'' You pledged ``to 
use every available tactic to defeat our adversaries.''
    In his book--which is a very important book, I think--Jack 
Goldsmith, ``The Terror Presidency,'' who, as I said, has been 
in the Department of Justice. He left President Bush's 
Department of Justice. He opposed some of the things that they 
did, but not all. He described the situation about where the 
Department of Justice refused to authorize a CIA covert 
operation to kill Osama bin Laden in 1998 when you were in the 
Department of Justice as the Deputy Attorney General. He wrote 
this: ``The White House and Justice Department lawyers opposed 
an unrestricted lethal operation against bin Laden and would 
authorize his killing only if it were necessary for self-
defense in the course of legitimately attempting to arrest 
him.'' That is page 95.
    He also noted at this time the CIA ``had bin Laden in its 
sights,'' and he discusses how this works. And what he said 
was, after previous hearings and complaints about covert 
activities, that the CIA and their agents had become 
conditioned to read their authorizations very carefully, and 
that George Tenet, then CIA Director, and other managers were 
insisting that these kind of operations be approved with 
unambiguous language. And according to his book, the Office of 
Legal Counsel--that is, the Department of Justice's Office of 
Legal Counsel--agreed that the legal prohibition against 
assassinations did not apply to a military target like bin 
Laden, who posed an imminent threat to the United States--and 
who had openly declared war on the United States, I would add. 
So far, so good, Mr. Goldsmith writes.
    But then the ambiguities appeared. ``White House and 
Justice Department lawyers opposed an unrestricted lethal 
operation against bin Laden.'' And that is when he said we only 
authorized the killing in the course of a legitimate arrest. 
And part of this whole thing was how agents have become 
intimidated and fearful of being prosecuted or having their 
careers ruined for conducting what they think is accurate 
policy. That is a danger that we deal with.
    So I guess my question to you is: To what extent were you 
involved in those decisions? And is this accurate? And did the 
White House and other Department of Justice lawyers basically 
put additional controls on OLC's opinion?
    Mr. Holder. Senator, I guess I am a little disturbed--I 
read that book, and I was a little disturbed to read that 
portion of the book. I am not at all certain it was 
appropriate. I don't know--I am sure he got that cleared. I 
mean, I don't know. But I am not very comfortable talking about 
that operation in this forum, in this setting. I was certainly 
aware of it. I didn't have the lead on the Justice Department's 
role in that. Maybe let's transition.
    I would say that there is clearly a need for people in the 
field to have clear direction, and we have to be aggressive. We 
have to understand the nature of the foe that we face. No one 
should take from any of the statements that I have made today a 
notion that we are going to retreat from being aggressive and 
seeking out and getting people before they would get us. I 
don't mean to say that at all. What I have said is that I think 
we can do that in a way that is consistent with our concern 
about civil liberties. There is not a tension between those 
two. We can be very aggressive using all the appropriate tools 
that we have, that we would get, that we now have, or 
additional tools that we might seek from Congress, and at the 
same time be true to our values. I am not saying that--so that 
is the point that I was trying to make in my earlier testimony.
    Senator Sessions. Well, I am sure that is true, but these 
are concrete situations, and I guess it appears from the book 
that OLC felt there was a legitimate basis. I would just note, 
on his website bin Laden had declared war on the United States. 
This is not a normal thug on the streets of Manhattan or 
something. This is a person who declared war on the United 
States, and they concluded the United States is legitimate in 
defending itself. But the final decision that came down said 
that you could only utilize lethal force in the course of an 
    Did you support that decision or the OLC opinion?
    Chairman Leahy. I am not trying to stop you from answering. 
Obviously, answer the way you feel free. Part of that--we are 
getting into an area that many of us have been briefed on in a 
very classified nature, and I don't want to put Mr. Holder in a 
difficult position of having to answer something that may go 
into a classified area. He obviously is used to handling 
classified material, and I will let him make his own judgment. 
I am not trying to put words in your mouth at all. But I would 
just caution Senators to be careful in what areas they go into.
    Having said that, I will yield the floor back to Senator 
Sessions and Mr. Holder.
    Mr. Holder. Senator, as I said earlier, I am a little 
reluctant--I would be glad to answer your question in what I 
would consider--in a more appropriate forum. Maybe I am being 
overly cautious here. I don't know. But we are talking about 
something--I mean, it is out there--that was a covert 
operation, that required the highest-level clearances.
    Frankly, maybe I am free to talk about that now. I don't 
know. I am just not feeling very comfortable responding to that 
question. But I will be more than glad to find out what ability 
I do have to talk about that and would be more than glad to 
share with you whatever I can.
    Senator Sessions. I would like that either in a closed 
fashion or in public if you can do so, and I think we need to 
know that. The problem is that we have created a climate for 
intelligence agents, military officers, law officers who are 
out serving the country in some very difficult things, in which 
they get ambiguous leadership and then are not able to act. 
And, apparently, bin Laden was in the sights of the United 
States Government, and we were prepared to act, waiting only 
for legal clearance. And we get back one of these ``cover your 
rear end'' ambiguous things, and the CIA guys, or whoever was 
involved in this, say they are not acting on it. And I think 
that is a danger and a weakness that could leave us more 
vulnerable than we need to be in the future.
    With regard to the closed testimony matters, this Committee 
has savaged anybody that even tried to investigate leaks. The 
New York Times can print anything, and members of our--as long 
as it embarrassed George Bush, and we want to get after--get 
after anybody that would suggest it was a breach of security.
    So I think it odd, but I will leave this question as it is. 
I do not want to ask you to say something you should not.
    Chairman Leahy. And, Senator Sessions, I appreciate that. I 
also don't want to get into a debate. We also could go into the 
whole debate about what happened when we took our troops out of 
Afghanistan to go into Iraq when they had bin Laden cornered. I 
mean, these are all debates of mistakes--some mistakes, some 
maybe not--in the past. I am more concerned about what kind of 
an Attorney General would Eric Holder be, and the concerns 
about what he is talking about, what are his plans if he is 
Attorney General? How will he run the Department? What is his 
philosophy? What would he do? Because that is ultimately what 
100 Senators have to vote on.
    Senator Sessions. Well, that is what I am trying to get at. 
You have interrupted me and used some of my time. That is what 
I was getting at. The OLC--what would you do in the future? 
OLC, according to this, had felt that it was justified. I think 
it was justified. Somewhere in the White House it said--and 
Justice Department lawyers--that you were privy to these 
discussions, sent an ambiguous message, and it makes me worry 
about the future. That is what I am asking about.
    Mr. Holder. And all I would say, Senator, is that I agree 
with you that there has to be, to the extent possible, 
unambiguous direction given to our people in the field. And it 
means that lawyers who are involved in that process have to 
understand that the words that they use, the direction that 
they give, has to be as precise as possible so that there is 
not that degree of ambiguity in those directions and might 
somehow have an inhibiting influence on the people in the 
field. They have got to understand what it is they can do, what 
it is they can't do, and that is incumbent upon the people who 
are making those decisions, the people at OLC or in other parts 
of the Justice Department.
    So I understand. I hear the concern that you express, and I 
understand that.
    Senator Sessions. The Washington Post asked that the Senate 
Judiciary Committee should press you on the rationale for 
supporting pardons that occurred, and I have asked you a little 
bit about that previously, and we sort of ran out of time. You 
did indicate you thought the President's decision on the FALN 
was reasonable, and I was a United States Attorney for 12 
years, Assistant United States Attorney for 2\1/2\, Attorney 
General for 2. In my opinion, it is not reasonable, it is not 
close. I mean, that is all I can tell you. And I do not believe 
it was a close question, and it worries me that you say that 
was a reasonable decision.
    In one article, a letter by Deborah Devaney, one of the 
Assistant United States Attorneys who prosecuted that case, and 
published in the Wall Street Journal in 1990, writes, ``As one 
of the FALN prosecutors, I know too much. I know the chilling 
evidence that convicted the petitioners, the violence and 
vehemence with which they conspired to wage war on all of us.''
    She goes on to say, ``In the first prosecution, some of the 
petitioners were captured in the back of a van with weapons 
used to commit armed robberies.'' Then she goes on to say, 
``Yet the President''--perhaps you did not know your role at 
that time. ``Yet the President has seen fit to reward these 
conspirators simply because they were unsuccessful in their 
murderous attempts.''
    Well, it goes on. It was opposed by the prosecutors in the 
case. The pardon attorneys--Margaret Love had rejected it 
previously. Roger Adams gave you the opinion you wanted in the 
first paragraph, but then spent four pages explaining why this 
was a very problematic decision, and one could read that as his 
personal objection to it, and I think he conveyed that to you.
    The FBI Director, Mr. Freeh, opposed it, and he had labeled 
FALN one of the three greatest domestic terrorist threats to 
the United States in 1998. And Mr. Adams did tell you, did he 
not, the pardon attorney, of Mr. Freeh's view on that?
    Mr. Holder. I was aware of the FBI's view on that matter.
    Senator Sessions. They had killed six people. One of the 
persons offered the commutation of sentence had planned an 
elaborate escape attempt using a helicopter and got an extra 15 
years for that, which is certainly not excessive for this kind 
of violent offender. There were over 130 groups and dozens of 
people injured, six people killed. And then there was no 
contrition. The defendants were so unrepentant that two of 
them, two of the 16, who were given clemency refused to accept 
it because they had to promise not to continue to be violent. 
So to me this is really a pretty august statement that this was 
    I would also note that the--15, it says on mine.
    Chairman Leahy. It is 5 minutes, plus 15 on there. For a 5-
minute round, you are now into 20 minutes. I was just 
    Senator Sessions. Well, you asked how----
    Chairman Leahy. I am trying to be fair.
    Senator Sessions. I know. You asked me how much time, and I 
said 15. I will try--I will wrap up.
    Chairman Leahy. It is 5 plus the 15 that shows on here. It 
was 5 minutes to begin with. Now it is 15 minutes beyond that 
5. It has been 20 minutes.
    Senator Sessions. I believe you are right, Mr. Chairman, as 
usual. I believe you are right. I apologize. I was looking at 
the time, but incorrectly.
    And the Sentencing Commission did an evaluation of what the 
sentencing would have been for these people had they been 
sentenced under the more recent Sentencing Guidelines, and 
without parole, they were 30-year-plus sentences. And that is 
without parole, whereas these people were sentenced--some--up 
to--one or two at 90.
    Tell me again, was this your personal view that this would 
be appropriate? And is that what you conveyed to the President?
    Mr. Holder. I looked at the situation, took into account 
the fact that these people were not directly involved in 
incidents that led to death or injuries, took into account the 
body of people--I guess Senator Whitehouse, he mentioned at 
least a few of them--people who were weighing in in favor of 
the clemency; the conditions that were put on it, that is, they 
had to renounce violence and some travel restrictions; weighed 
what the view was in law enforcement from the U.S. Attorneys, 
from the investigative agencies, and obviously took into 
consideration what the pardon attorneys were saying, both of 
them. And it seemed to me that the clemency--and also took into 
account significantly the length of the sentences that these 
people had already served and the sentences that had been 
imposed by the trial judge initially--or trial judges 
    It seemed to me that the clemency grant, taking all that 
into consideration, was appropriate, and that was what I 
conveyed to the President.
    Senator Sessions. Well, thank you, Mr. Chairman. I do 
think--and I particularly find the Rich pardon that you 
acquiesced in and leaned toward to be problematic in light of 
the tremendous controversy this one caused about a year or so 
before. And it had to go before hearings. A resolution of the 
Senate found it deplorable, and I would have hoped that you 
would have been more forceful with the President on the Rich 
pardon. And if you had done so, you would have helped protect 
him and his legacy, which was besmirched by this. Richard 
Cohen, his ally, opposed your confirmation because you didn't 
resist that pardon effectively, and it just troubles me.
    Thank you, Mr. Chairman.
    Chairman Leahy. I think I would note parenthetically that 
tens of millions, some would say hundreds of millions of 
dollars of a Republican-controlled Congress went on for 6 years 
to try to besmirch President Clinton's reputation in a number 
of areas. I would also note that I do wish that President Obama 
had some of the advantages coming in that President Bush did 
when President Clinton left President Bush the largest surplus 
in America's history, paying down the national debt, and 
creating an enormous number of jobs. President Obama will 
inherit the largest deficit of any nation on Earth in history, 
and the largest deficit and a tripling of the national debt.
    I realize that part of that cost was all these hearings 
that might be besmirching President Clinton's decision and 
legacy, but the fact is, I think all of us, Republicans and 
Democrats, wish we were inheriting the economic situation that 
President Clinton left to his successor rather than the one 
that is being left to President Obama.
    I am not going to take the 20 minutes that everybody has 
been taking of their 5 minutes here, but just a couple of quick 
    Am I correct that as Deputy Attorney General you had no 
final decisionmaking power to grant clemency or pardons? Is 
that correct?
    Mr. Holder. That is correct.
    Chairman Leahy. And am I correct that your memo--I am 
talking about FALN now. Your memo to the White House made no 
recommendation on clemency for the prisoners, but rather, 
provided an analysis with multiple options for each prisoner. 
Am I correct?
    Mr. Holder. That is all I have been able to find, the 
options memo, which lays out the whole range of possibilities 
that the President could consider. But I have to say, Mr. 
Chairman, I do think that in some form or fashion I conveyed a 
recommendation to him. I just don't--I can't find it.
    Chairman Leahy. Am I correct that none of the FALN members 
offered clemency by President Clinton were present when 
individuals were killed or injured?
    Mr. Holder. That is correct.
    Chairman Leahy. And am I correct that the prisoners were 
released under strict supervision of Federal probation 
authorities and none have caused any future harm?
    Mr. Holder. That is my understanding.
    Chairman Leahy. Am I correct that the clemency offers were 
conditioned on the prisoners' willingness to renounce violence 
and each of them had already served either 16--somewhere from 
16 to 19 years in prison? Am I correct?
    Mr. Holder. That is correct. And two of the--as Senator 
Sessions noted, two of the individuals who were offered 
clemency would not accede to that demand, that is, to renounce 
violence, and they, therefore, did not get out of prison.
    Chairman Leahy. They stayed in prison.
    Mr. Holder. They stayed.
    Chairman Leahy. And the clemency provided by President 
Clinton was supported by various Members of Congress, numerous 
religious, human rights, labor, Hispanic, civic, and community 
groups, including former President Carter, Archbishop Desmond 
Tutu, and Coretta Scott King. Am I correct?
    Mr. Holder. That is correct.
    Chairman Leahy. And am I also correct that your nomination 
to be Attorney General has been enthusiastically endorsed by 
the Nation's top law enforcement organizations and numerous law 
enforcement officials, including many who were among the 
biggest critics of the FALN clemency? Am I correct in that?
    Mr. Holder. I think the Fraternal Order of Police testified 
in the hearings that were held and criticized the FALN pardons, 
and the Fraternal Order of Police has endorsed my nomination.
    Chairman Leahy. And we have put into the record their 
endorsement of your nomination, and, of course, we will have, 
among others, former Director of the FBI Louis Freeh, no 
shrinking violet he when it comes to law enforcement matters, 
who enthusiastically and strongly supports you.
    Senator Coburn.
    Senator Coburn. Thank you, Mr. Chairman----
    Senator Sessions. Mr. Chairman, since we kind of have a 
little--you took a personal privilege there. May I have just 2 
minutes? One minute?
    Chairman Leahy. One minute.
    Senator Sessions. One minute.
    Chairman Leahy. Start the clock.
    Senator Sessions. I think it is true that President Clinton 
did cite your recommendation in his later basis for granting 
the pardon, number one.
    Mr. Holder. I am sorry. Which pardon, Senator? The----
    Senator Sessions. The FALN--no, the Marc Rich pardon.
    Mr. Holder. Rich pardon, yes.
    Senator Sessions. That is right. Excuse me. And Osama bin 
Laden and Khalid Sheikh Mohammed weren't directly involved in 
the murders. They were conspirators to that, and they probably 
and morally are more accountable in my view, and equally 
accountable as those who actually carried out the attacks in 
the United States. Wouldn't you agree?
    Mr. Holder. I would, but the FALN people are not in the 
same category as Khalid Sheikh Mohammed or bin Laden in that 
they were not the heads of the organization. That is not my 
understanding of the people who were--where the pardons were--
again, I want to emphasize these people were criminals. They 
were terrorists. I am not giving them a pass. They served 
substantial amounts of time. I don't want anybody to----
    Senator Sessions. You recommended against the law 
enforcement people that they not serve the full time they were 
sentenced, and they wouldn't even file papers--I don't think 
any of them actually even asked for a pardon. They were hard 
core about it.
    Chairman Leahy. The Senator's----
    Senator Sessions. Excuse me. Okay. My time is up.
    Chairman Leahy. The Senator's 5 minutes has gone to 
minutes, but Senator Coburn.
    Senator Coburn. Thank you, and I promise not to take 24 
    First of all, sorry you have had such a long day, and----
    Chairman Leahy. I am going to need a doctor if you do.
    Senator Coburn. And I know the Chairman wants to get home 
to his grandchildren, and I know you all would like a break and 
have a dinner, and so I am going to be very short. Three points 
for the record.
    One, the only thing I would say about the FALN is that 
clemency was granted after the Oklahoma City bombings, so there 
is a lack of sensitivity there. And it wasn't to the same 
degree, but the intent was.
    Number two, as far as the comments by my colleague Senator 
Whitehouse, your soon-to-be-boss, when you are sworn in as 
Attorney General, made great efforts on the Homeland Security 
Committee to take away the parochialism of the Homeland 
Security grants. And only three members of this Committee voted 
with him to make it on the basis of risk instead of on the 
basis of parochialism. So I hope you will look at that as you 
see this necessity of trying to rearrange the money that you 
have in terms of looking at risk instead of parochialism that 
makes us all look good.
    I want to get you on record. We talked about this in the 
office. Your boss and I passed a bill called the Transparency 
and Accountability Act. It requires the submission of where you 
spend your money, both the contracts and the subcontracts, the 
grants and the sub-grants. Is your intention to comply with 
that on a timely basis so the American people can see that?
    Mr. Holder. Yes.
    Senator Coburn. Thank you. And then my last question about 
guns, I promise. I will never ask you another one in the 
Committee hearings. And all I want is a yes or no, because I 
think people need to hear where you are going on this. There is 
some uneasiness among the Second Amendment crowd in this 
country, and what I am trying to do is clarify that.
    Will you commit to protect and preserve the rights of those 
40 States that have a right-to-carry law by opposing 
legislation that would encroach upon those rights?
    Mr. Holder. You mean opposing State legislation? I am not--
    Senator Coburn. No. Opposing Federal legislation that would 
encroach upon those rights. Let me say it again for you.
    Mr. Holder. Yes, I understand the question. I am just not 
sure how--what the appropriate role would be for the Federal 
Government in the situation that you describe.
    Senator Coburn. Well, if we are passing a law that is 
obviously going to do that, as the supreme enforcer of the law 
in this land, as the head law enforcer, it should be upon you 
to challenge that into court when it obviously is going to 
violate the Heller decision. So what I am asking you is to 
specifically state that if we pass something that violates 
these State laws--in other words, is going to limit these State 
laws, take away Second Amendment rights as being defined by the 
Heller decision, will you, in fact, intercede on the basis of 
the Heller decision to defend the rights of the States to have 
carry laws?
    Mr. Holder. Well, I wouldn't support any law that violated 
the dictates of Heller. Now, I don't know--the question you ask 
is a hypothetical, and it is hard to answer hypotheticals 
without having all of the facts. But I will state, as I said, I 
think earlier, Heller is the law of the land. It has to be 
taken into account with regard to any legislation that might be 
    Senator Coburn. Well, let me just pin you down just a 
little bit closer so I can get comfortable.
    Mr. Holder. Okay.
    Senator Coburn. Do you believe States presently have the 
right to establish carry laws in States?
    Mr. Holder. I think that----
    Senator Coburn. Either concealed carry or not concealed 
carry laws.
    Mr. Holder. Without agreeing or disagreeing with them, I 
think States do have those rights, yes.
    Senator Coburn. The States do. Will you work to protect 
that the States will continue to have that right?
    Mr. Holder. Senator, yeah, I guess. I mean, I am in favor--
    Senator Coburn. You are making my Second Amendment crowd 
really nervous. They want to hear you say, yeah, they have that 
right and they ought to be able to maintain that right. That is 
what they want to hear you say.
    Mr. Holder. And I guess what I am saying to that same crowd 
is that I have no intention, this administration has no 
intention, of doing anything that would affect a State's 
regulation of firearms, who can carry a firearm, under what 
circumstances. There is nothing that we have discussed, nothing 
that is in planning, nothing that I can imagine that we are 
going to be doing in that regard.
    Senator Coburn. So----
    Chairman Leahy. Would the Senator yield to me?
    Senator Coburn. I would be happy to yield.
    Chairman Leahy. Just to ask for a clarification, the State 
of Vermont has very simple laws on guns. During hunting season, 
deer hunting season, on your semiautomatics, you are restricted 
to a certain number of rounds to give the deer a chance. We 
post signs outside the city limits of Montpelier, our State 
capital, saying that if you are going to hunt deer inside the 
city limits of Montpelier--like, for example, crossing the 
State House lawn or something--you are limited to shotguns. 
That is the only place you are. Anybody, unless they are a 
felon, are allowed to carry a loaded concealed weapon above a 
certain age without a permit. Nobody does. We like the fact 
that we can. The vast majority of us in Vermont, like myself, 
own numerous firearms.
    Do I understand you to say you are not going to be on a 
crusade to have the Federal Government come in and override the 
laws of the State of Vermont?
    Mr. Holder. That would be true. Maybe I am not expressing--
    Chairman Leahy. Which are a lot less restrictive than the 
laws of Senator Coburn's State.
    Mr. Holder. Maybe I have not expressed this well, but this 
is not an agenda item, it is not a focus, it is not an 
expectation that I have for this administration. I am not sure 
how I can say it any plainer than that. There are things that 
we want to do with regard to crime prevention and to reduce 
crime, but the concern that you have raised is not on an ``of 
the menu items'' that I have seen--or could imagine.
    Senator Coburn. Thank you for your answer. It is not the 
one I wanted to hear, but thank you for the answer.
    Mr. Chairman, we will submit additional questions, and 
thank you for being patient, and thank you, Mr. Holder, for the 
fine job you have done today.
    Mr. Holder. Thank you, Senator.
    Chairman Leahy. The witness is dismissed with our thanks.
    Mr. Holder. Thank you.
    Chairman Leahy. And with me, you are dismissed with my 
admiration and my gratitude.
    Mr. Holder. Thank you very much. I think I have been very--
    Chairman Leahy. It is very clear I am going to vote for 
you. We will reconvene tomorrow morning with the panel at 10 
o'clock in the Senate Judiciary Committee hearing.
    With that, we stand in recess.
    Mr. Holder. Thank you, Senator.
    [Whereupon, at 7:14 p.m., the Committee was adjourned, to 
reconvene at 10:a.m., Friday, January 16, 2008.]
    [Questions and answers and submissions for the record 



                       FRIDAY, JANUARY 16, 2009,

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:05 a.m., in 
room SD-326, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Specter, and Sessions.

                      THE STATE OF VERMONT

    Chairman Leahy. Good morning. I am glad to see all of you, 
many familiar faces in our hearing room. I am thinking Senator 
Specter and I have spent a significant portion of our lives in 
this room. I look around, and I am missing one of the Senators 
I sat with here for over 30 years, Senator Biden, who has now 
left the Senate for other duties of sorts. So I welcome all of 
    Yesterday we met in the Senate Caucus Room from 9:30 until 
7:15 so that every Senator, Republican and Democratic alike, 
could ask Eric Holder whatever questions they had. That is a 
historic room for a historic nomination.
    Senator John Warner of Virginia once again showed the 
bipartisanship and leadership that he has shown for over 30 
years in the Senate. He noted the problems facing the 
Department of Justice and the country are so great that he 
would urge everybody to put aside partisanship and work 
together. He presented and endorsed Eric Holder to be Attorney 
General, described his outstanding qualifications, integrity, 
and independence.
    Congresswoman Eleanor Norton was eloquent in her statement 
of support for Eric Holder, a former judge first nominated by 
President Ronald Reagan, and then a prosecutor in the District 
of Columbia.
    Everybody asked the questions they wanted to. Senators of 
both parties have done so. Much of the questioning was 
substantive. We touched on many important issues, and the 
Senators were--technically the third round was a 5-minute 
round, but we went 20 and 25 minutes and longer for some of the 
Senators. I went until everybody said they had asked all the 
questions they wanted.
    Now, having heard Mr. Holder's testimony, I am more 
convinced than ever he is a person who will reinvigorate the 
Department of Justice. He served ably as a member of the 
President's national security team. He pursued the Justice 
Department's vital missions with skill, integrity, 
independence, and a commitment to the rule of law. I said 
before he is a prosecutor's prosecutor. And I am not going to 
use all my time because I want to get the witnesses, but I 
would yield to Senator Specter.

                        OF PENNSYLVANIA

    Senator Specter. Thank you, Mr. Chairman. The attendance is 
substantially less than yesterday. I cannot imagine why, 
considering the impressive array of seven witnesses who are 
here. But I join the Chairman in thanking all of you for 
coming, and outside witnesses are very important to give a 
fuller picture.
    As I said yesterday, I had hoped to have initially 12 and 
then down to 7, and only three witnesses have been permitted 
here. But I do not intend to press that point because I know 
that there is great disdain in the American public for 
disagreements or bickering in Washington, D.C. So the Chairman 
and I have had a very cordial relationship for 28 years--
actually before that. I met him when he was the district 
attorney of Burlington. I had a smaller city--Philadelphia--to 
be district attorney. And we had the national convention in 
Philadelphia, and I met this young fellow. He was not as tall 
then. He had a lot more hair.
    Chairman Leahy. A lot more.
    Senator Specter. And we have worked very closely together, 
and we have had a disagreement about the handling of the 
scheduling and the handling of witnesses in a number of matters 
here. And I do want to help President-elect Obama. It is very 
important. There are enormous problems facing this country, and 
we all ought to do everything we can.
    There is the constitutional responsibility that this 
Committee has on advice and consent, and we are at the consent 
part now. And separation of powers is the rock bed of our 
republic, and independence is very important, and I emphasized 
that yesterday in the questioning of Mr. Holder. So we have an 
important role to perform here, and we appreciate your coming 
    In the interest of time, I am going to yield back the 
balance of my 2 minutes and 37 seconds.
    Chairman Leahy. Thank you.
    The first witness, who was here for a good part of the 
hearing yesterday, is Louis Freeh. Judge Freeh is a former 
Director of the Federal Bureau of Investigation. I read this 
from the notes, Judge. I do not think there is anybody in the 
room that needs to know that, but you are. Your career began in 
the Department of Justice in 1975 when you became a special 
agent for the FBI. He has a long and distinguished career as a 
public servant under both Democratic and Republican Presidents. 
He was appointed by President George H.W. Bush as a Federal 
district court judge, a lifetime appointment, in the Southern 
District of New York. He had been a career Federal prosecutor 
in the United States Attorney's Office for the Southern 
District of New York, serving as chief of the Organized Crime 
    Now, he gave up that lifetime position to take the 
appointment as the head of the FBI, and I should note for the 
record, I have known Louis Freeh and his wife, Marilyn, and 
family for years. I am thrilled and I feel honored that he is 
now a part-time resident of the State of Vermont.
    Judge, please go ahead. We will start with you, and I will 
introduce each one, and if it is OK with you, I thought we 
would just go through and let everybody testify, and then we 
will ask some questions.

                    BUREAU OF INVESTIGATION

    Mr. Freeh. Thank you. Good morning, Mr. Chairman. Senator 
Specter, good morning to you. It is a pleasure to be before 
you. I have been in front of this Committee dozens and dozens 
of times over the years, and I am very pleased to come here and 
speak in support of the nomination of Eric Holder.
    We have presiding over the Committee today not just two 
Chairmen--Senator Specter being a former Chairman of this 
Committee--but two prosecutors, two district attorneys, who 
know firsthand the importance and the challenges of protecting 
our laws and our society, but also adhering to the rule of law 
and being politically independent as you make important 
decisions--decisions which are subject to review and criticism. 
So I think the country and the Senate could not have two more 
knowledgeable and experienced people to lead the inquiry, and I 
commend the Committee and you, Mr. Chairman, and the Ranking 
Member for the fairness and thoroughness of your hearing.
    You know, I was confirmed twice by this Committee. I spent 
25 years serving in the U.S. Government, mostly the Department 
of Justice. I left the FBI Director's job after 8 years. One of 
the things I was proudest of is, when I left Washington, no one 
in the Senate, no one in the Congress had called for my 
resignation while I was here. No one said I was politically 
partisan. No one said that I was not independent. And, for me, 
and the FBI, that was a great feeling. I also left town without 
being further investigated, which, as you know, is a great 
benefit to any Federal serving official.
    When I was a prosecutor, Attorney General Thornburgh at the 
time sent me down to Atlanta to work on a bombing case. It was 
a pretty egregious case. Someone had killed a Federal judge and 
also the head of the NAACP in Savannah. That was my first 
opportunity to meet Griffin Bell. Griffin Bell, in his typical 
humility, called me up. I was in the U.S. Attorney's Office in 
Atlanta. And he said, ``Mr. Freeh,'' he said, ``if I can help 
you in any way, I know a few people in town here.''
    When he was Attorney General--and you probably have heard 
this story--he was in his conference room, the great conference 
room where both of you have visited, and he was presiding over 
a meeting. His secretary came out--he was a new Attorney 
General--and she was very excited, and she said, ``General, 
General, the White House is on the phone.'' And he looked at 
her, and he said, in his typical Southern drawl, ``I don't take 
calls from buildings.''
    The importance of that statement I think is very relevant 
to your inquiry here and to what I want to say about Eric 
Holder. The Attorney General of the United States is the chief 
law enforcement officer of the United States. Beyond 
competence, the elements of integrity, the elements of 
leadership, and, I think most importantly, political 
independence is critical.
    Attorney Generals, like district attorneys, like U.S. 
Attorneys, like FBI Directors, will make decisions from time to 
time with which people disagree, and that is an important facet 
of the service and an essential element of our democracy. I 
made many decisions when I was an Assistant U.S. Attorney, when 
I was the Deputy U.S. Attorney, certainly when I was an FBI 
Director, that people disagreed with. And Eric Holder has made 
decisions with which I disagree, and I will talk about those 
briefly in a moment. But it is not the decision to me as much 
as the process and the principles and the integrity and 
independence with which that decision is made.
    My very strong belief with respect to Eric Holder is that 
he has tremendous, he has great character, he has got good 
judgment. He has excellent competence as a lawyer, which I will 
talk about, because I also worked with him in the private 
sector, as you know. But he does have political independence. 
He is not afraid to say no, in my view, to an Attorney General 
and now, if he is confirmed by the Senate, the President of the 
United States. And I think if we look at those essential 
characteristics and elements, we can put into better 
perspective decisions which he made, and as I said, some 
decisions which he yesterday told you he regretted and with 
which I also disagreed.
    The men and women of the Department of Justice--and I can 
speak, I think, for the men and women, many of them, in the 
FBI, had tremendous respect for Eric Holder as U.S. Attorney. 
And as you know, when you were district attorneys, if someone 
wanted to really find out about what kind of a job you were 
doing, they would ask your assistants, they would ask the 
assistant district attorneys who worked for you, your chiefs; 
and they would give a pretty honest and pretty accurate view as 
to your qualities as a leader, whether or not you were strong, 
whether you were politically independent, whether you had the 
courage, the moral courage to take on difficult cases and make 
difficult decisions.
    And with respect to Eric Holder, beyond the background 
investigations, which the FBI, of course, performed with 
respect to him, the agents who worked with him, particularly 
when he was a line assistant, have told me time and time again 
that he was smart, he was honest, he was fair, he was not 
afraid. He exercised his office without fear or favor, whether 
he was looking at a very powerful political subject of an 
investigation--as you know, he did prosecute one as U.S. 
Attorney. And he did not pull his punches when it came to fair 
and thorough investigations.
    That reputational evidence to me is quite essential. The 
Federal Rules of Evidence allow reputational evidence to be 
heard by a jury because our experience has found that it is 
very reliable. His reputation as a good prosecutor, an honest 
prosecutor, and an independent prosecutor is very, very well 
established. I have never heard anything to dispute that, and I 
think that that is an essential evaluation for you to conduct.
    The letters that you read yesterday, Mr. Chairman, those 
endorsements are not come by very easy, in my experience. The 
International Association of Chiefs of Police--I am on one of 
their boards. They don't casually or routinely endorse people. 
It is not a coincidence that you have all those endorsements. 
You have them because his reputation and the experience of the 
men and women who have worked with him on the line and worked 
with him in the Department of Justice see him and have 
experienced him as a good, honest, tough, and independent 
    And I have another note here, Mr. Chairman, which I would 
submit for the record, from Ron Noble, who, as you know, is the 
Director General in Interpol. And Assistant U.S. Attorney, 
Senator Specter, in Philadelphia, a protege of Ed Dennis, he 
said he would fly over here if anybody wanted to speak to him. 
But he says that Eric Holder is exactly the kind of attorney 
that we should trust as our Attorney General.
    You know, I worked with Eric Holder probably more than 
anybody in this room. I saw him on a daily basis sometimes when 
he was deputy. We disagreed a lot. We argued over things. He 
would overrule me from time to time. I would challenge him 
occasionally--maybe more than occasionally--on things. And we 
came out sometimes on different ends of a point or a position. 
But in all of those dealings, what I saw was a smart, 
intelligent, skillful attorney, a great public servant, 
somebody with humility and somebody with independence who was 
not afraid to say no and call something as he thought it had to 
be called. And for me, that is very essential.
    Let me talk just 2 minutes--not 2 minutes, but briefly 
about the Marc Rich and the FALN matters.
    You know, on the Marc Rich matter, I was the Deputy U.S. 
Attorney in the Southern District of New York. That was a 
Southern District of New York case. One of the things I did 
while I was Deputy U.S. Attorney is I went over to Switzerland. 
I actually negotiated with the Swiss to get a warrant of 
extradition served on Marc Rich.
    The pardon of Marc Rich was a corrupt act. There is no 
other way that I could describe it. And committees here have 
looked at it. They have evaluated it. It was a corrupt act. But 
it was not an act by Eric Holder. Let me give you just a quick 
picture of what was going on at the end of the Clinton 
administration when this pardon took place.
    Nobody in the Department of Justice, nobody in the FBI had 
a clue about who was on the pardon list. The White House staff 
and its leadership, whoever was working this process, actively 
conspired to ensure that nobody knew what they were doing. On 
the morning of Inauguration Day--the morning of Inauguration 
Day--I sent two FBI agents to stand at the west gate of the 
White House so they could read the list of pardoned officials 
when it was published, because they wouldn't tell us who was 
being considered.
    Eric Holder made some terrible mistakes, which he told you 
about yesterday, in allowing himself to be used and co-opted 
with respect to the facilitation of that pardon. But he did not 
understand, he did not authorize, he certainly did not execute 
this pardon. And he has learned a lot from that. I think as 
Senator John Warner told us, we can be sure from that 
experience that he will never allow himself again to be put in 
that position.
    The FALN pardon, you know, I wrote the letter to the 
Department of Justice vehemently opposed to that. The FBI took 
a very strong position. We were continuing FALN investigations 
at the time of that pardon. But the pardon process functions as 
a quasi-judicial process. Both the pardon attorney who prepares 
the materials for the deputy and ultimately the President of 
the United States function in a quasi-judicial manner. I did 
not agree, I do not agree with the decision with respect to 
that pardon. I opposed it personally. I opposed it as Director. 
And I don't think it was a reasonable act to be done.
    But there are many, many judicial decisions, some of which 
I made briefly when I was a judge, with which people disagreed. 
The process, however, that was followed was the process 
prescribed in the Department and by the President. And I don't 
think it is fair or a good index of the character, judgment, 
and independence of Eric Holder to look at that without the 
context of 26 years of dedicated, independent, and brave 
    Briefly, in private practice, you know, I hired Eric Holder 
when I was general counsel at MBNA Bank of America. I had a 
very complex piece of litigation in Texas, and I hired him to 
handle it. I could have hired any lawyer in America, and a lot 
of my colleagues from the Southern District were wondering why 
I didn't hire them. I didn't know Eric Holder in a social 
frame. I still don't know him in a social frame. I hired him 
for that case because his legal skills, his integrity, and his 
willingness to tell me independently whether or not the case 
was one that should be tried or settled in a very complicated 
scheme was someone who I trusted. He litigated the case. He did 
a superb job. The judge ended up sanctioning the plaintiff's 
lawyers, which, as you know, rarely happens in Federal court. 
And by everybody's estimate, both my lawyers in the bank and 
co-counsel and the judge, he did an absolutely outstanding job.
    Let me just finish by echoing what John Warner said, and I 
agree with you, Mr. Chairman. I mean, it was such a pleasure to 
see him and hear him yesterday. He nominated our oldest son to 
the Naval Academy, he was my Senator for 8 years, and just the 
template of what we want for public service in Government. And 
remember what he said. He said, you know, ``The theme and the 
phrase I keep hearing with respect to this man is `He is a good 
man.' '' And being a good man in the Attorney Generalship of 
the United States is critical. And beyond good, as I said, I 
think he has superb lawyering skills. I mean, where do we find 
for our Attorney General someone who has had the trial and 
prosecutorial experience of someone like Eric Holder?
    He is a man of integrity, he is a man of the law, and I 
think and I know he will exercise political independence. This 
Committee will make sure that he does that. The media will make 
sure that he does that. The people in the FBI will make sure 
that he does that. And if he doesn't, you are going to hear 
about it. I don't think you will because I don't think he will 
be anything except independent.
    But you have a great candidate here, and I really urge you 
to approve him for confirmation. Thank you.
    [The prepared statement of Mr. Freeh appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much, Judge Freeh.
    Our next witness, Chuck Canterbury is the National 
President of the Fraternal Order of Police, one of the Nation's 
largest and most prominent voices for law enforcement officers. 
He has served in numerous capacities in that organization: 
National Vice President, National Second Vice President, of 
course, now as President, Twenty-five years of experience in 
law enforcement; a police officer in South Carolina. It was in 
Horry County, wasn't it?
    Mr. Canterbury. Yes, sir.
    Chairman Leahy. He has also been appointed by President 
George W. Bush to serve on the Medal of Valor Board. He serves 
on our Nation's Homeland Security Council. He certainly is no 
stranger to this Committee.
    Mr. Canterbury, please go ahead, sir.

                   FRATERNAL ORDER OF POLICE

    Mr. Canterbury. Thank you, Mr. Chairman and Mr. Ranking 
Member Specter. We are very pleased to be here and graciously 
accepted the invitation.
    As the spokesperson of the largest law enforcement 
organization not only in the country but obviously in the State 
of Pennsylvania, and hopefully one day in the State of Vermont, 
Senator, we are very pleased to be here to offer our strong 
support for this candidate to be the next Attorney General of 
the United States.
    We are also fortunate to have both of you gentlemen, and 
the leadership that you provide, for the law enforcement 
community across this country is greatly appreciated by my 
peers in law enforcement.
    Upon hearing the news that President-elect Obama intended 
to tap Mr. Holder for this Cabinet position, we directed our 
legislative staff to conduct the most exhaustive examination of 
a candidate's record for anybody that we have ever endorsed for 
the position of Attorney General. We looked at his record of 
his 12 years at the Department of Justice in the Public 
Integrity Section, his role as the Deputy Attorney General, and 
that of the time he spent in the judicial branch as a judge. It 
was an extremely thorough review.
    His positions, his policy work, and the official acts were 
consistent with the goals of the FOP, and we have every reason 
to believe that he will be an exemplary U.S. Attorney General 
with whom we will have a very productive relationship.
    I think the FOP brings a unique perspective to this 
nomination because of our familiarity with his record in the 
courtroom and as a judge and a U.S. Attorney. As part of this 
review process, we talked to the rank-and-file officers in the 
District of Columbia, one of our largest groups, and talked to 
him about his time in superior court as a judge. To a man, 
every individual that we talked to reported that he was fair 
and tough, and they spoke favorably about U.S. Attorney Holder, 
describing him as an ``able and aggressive'' prosecutor. And 
from the perspective of the line officers who work on real 
cases, those are the adjectives that you want to hear as a 
police officer.
    The FOP has a better sense and a complete picture because 
of the interviews that we conducted with our membership, with 
the men on the street that actually worked cases with Eric 
    I would also like to add that we talked to a lot of our 
career employees, members of our organization who worked at the 
Department of Justice, the best of the best, and many of them 
are members of our organization, and they were anxious for us 
to endorse Eric Holder for this position. He is one that they 
felt was one of their own who could take the helm of the 
Department and restore the integrity that they felt the 
Department needed.
    The FOP was also privileged to have the opportunity to 
discuss with Mr. Holder a number of different issues, including 
his vision for the Department of Justice and the ability to 
have input and talk to him about the crime-fighting strategies 
and the policies that affect our members, the rank-and-file, 
the boots on the street.
    I believe that the President-elect has made a great choice 
in Eric Holder to be the next Attorney General of the United 
States, and we want to emphasize that all the major law 
enforcement organizations have announced their support. I 
believe it is unprecedented that you have the chiefs, the rank-
and-file, the sheriffs, all organizations standing together on 
    I urge the Committee to complete their review of this 
nominee in as quickly a fashion as possible and favorably 
report this to the Senate floor. As you examine his record, I 
believe you will find him not only well qualified but possessed 
of the requisite character, knowledge, and skills to do this 
job and be an extremely effective leader for the Department.
    And, again, Mr. Chairman, Mr. Ranking Member, we thank you 
for the invitation, and we urge you to move this along as 
quickly as possible. We believe that he will be a fine Attorney 
    Thank you, sir.
    [The prepared statement of Mr. Canterbury appears as a 
submission for the record.]
    Chairman Leahy. Thank you, Mr. Canterbury, and I thank you 
and your organization for all the time you have spent up here 
before this Committee, the help you have given, and Mr. Pascal 
who is here often on critical law enforcement matters that we 
have before us, and I appreciate that.
    Our next witness is John Payton. He became Director-Counsel 
and President of the NAACP Legal Defense Fund last March. This 
was after a very long and distinguished career in private 
practice. He is the sixth person to lead the Legal Defense Fund 
in its 67-year history, something started by Thurgood Marshall. 
Mr. Payton is recognized as one of the premier litigators in 
this country. His civil rights experience includes Supreme 
Court arguments defending the use of race-based remedies in the 
University of Michigan's admission criteria. He worked in 
private practice here in Washington, D.C., for the law firm of 
Wilmer Hale. He was Corporation Counsel of the District of 
Columbia. He served as President of the District of Columbia 
Bar. He has taught at Harvard, Georgetown, and Howard law 
    Again, he is no stranger to this Committee, and, Mr. 
Payton, thank you very much, sir, for being here.


    Mr. Payton. Thank you, Mr. Chairman. It is a pleasure to be 
here, especially on the occasion of the nomination of Eric 
Holder. I am here to support enthusiastically his nomination to 
be Attorney General of the United States. The Legal Defense 
Fund views it as a national imperative that the Department of 
Justice live up to its name by delivering justice and equality 
for all people in the United States.
    The harsh reality today--and it is a very harsh reality 
today--is that the Department of Justice is in shambles. Mr. 
Holder, if he is confirmed, will inherit a Department with its 
very credibility in question. The entire Department has been 
decimated by scandal and controversy, from the firings of U.S. 
Attorneys to the use of an ideological test for the Justice 
Department's Honors Program to the assault on the Civil Rights 
    The task at hand is nothing less than to reclaim the soul 
of the Department of Justice, as former Attorney General Edward 
Levi phrased it immediately after Watergate, a strikingly 
analogous set of circumstances. But I believe the core of the 
soul of the Department of Justice is its Civil Rights Division. 
Yes, integrity must be restored to all of the Department's 
operations. And, yes, it must regain its independence from 
political influence. But the area in which the Department has 
been most damaged is the Civil Rights Division, which has been 
plagued by problems that have shaken its very foundation.
    Press reports and hearings before this Committee have 
revealed the insertion of politics into litigation decisions, 
the weakening of enforcement, improper or possibly illegal 
personnel practices, and a substantial decline in cases filed 
to protect racial and ethnic minorities. Politics and ideology 
have triumphed over evenhanded enforcement at almost every 
turn. Career civil rights lawyers in the Department have been 
demoralized, and many have been literally driven out of the 
    This Tuesday, the Department's Office of Inspector General 
and the Office of Professional Responsibility released their 
joint report on an investigation of allegations of politicized 
hiring and other improper personnel actions in the Civil Rights 
Division. The report was completed last July, but only released 
this week. It is a shocking report.
    It shows, as the earlier report identified, an enemies list 
that was used to actually keep people from becoming members of 
the Department. The entire Department of Justice Honors Program 
used the enemies list. Our organization, the Legal Defense 
Fund, was on the list.
    The second report is even more shocking than the first. It 
concludes that hiring in the Special Litigation Section, the 
Employment Litigation Section, the Voting Section, the Criminal 
Section, the Appellate Section, all were illegally infected 
with political and ideological considerations; and it makes a 
criminal referral to the U.S. Attorney's Office.
    But as I said, the entire Department of Justice has 
suffered grievously. The challenge for the next Attorney 
General requires very special leadership and very special 
commitment. It requires someone who can inspire and be an 
    Yesterday's hearing, I believe--and I sat through almost 
all of it and heard the rest--was a dramatic example and 
dramatic evidence of why President-elect Barack Obama has 
selected Eric Holder to lead the Department of Justice at this 
critical moment. We face perilous times, both internationally 
and domestically. The legal issues before us are complex and 
dynamic. I think there is no better person than Eric Holder to 
restore integrity and honor to the entire Department of 
Justice, and the ethical standing and reputation for excellence 
of its Civil Rights Division. He has an exceptional resume, 
which you heard about yesterday: Columbia, Columbia Law School, 
the Honors Program, lawyer in the Public Integrity Section, a 
judge, U.S. Attorney, Deputy Attorney General, partner at a 
very prestigious law firm. Let me just add one other thing to 
his resume. He began his legal career as a legal intern at the 
Legal Defense Fund, and ironically, in the recent past, that 
would have disqualified him from working at the Department of 
    I also know Eric from my own history and professional 
experience in this town. As you said, Mr. Chairman, I was 
partner at a law firm for many years here. I was Corporation 
Counsel. I was President of the D.C. Bar. I have known Eric for 
almost that entire time. We are friends. I think that his 
personal commitment to issues of justice and equality is 
exceptional. His experience and the strength of his commitment 
to fairness assure me, and I am sure they assure this 
Committee, that the odious practices identified in this week's 
report by the Inspector General will never be tolerated on his 
    Let me reiterate one final point. I don't think there is a 
better person to lead the Department of Justice at this 
critical moment than Eric Holder. And with his nomination, we 
can begin to restore the crown jewel of our Nation's legal 
    I urge the Senate to confirm Eric Holder as the next 
Attorney General of the United States. He will make us all 
    [The prepared statement of Mr. Payton appears as a 
submission for the record.]
    Chairman Leahy. Thank you, Mr. Payton, and I do appreciate 
that. Actually, with you testifying, it reminded me of 
something that I was going to do yesterday, and because we went 
so late I didn't. But Judge Freeh has talked about all the 
different people who have written in and support Eric Holder. 
Mr. Canterbury talked about the unique nature of all the 
different types of law enforcement being for him. And I put 
letters from those different organizations in the record 
yesterday. But we have also received letters of support for Mr. 
Holder's nomination signed by more than 60 civil rights 
organizations, including the NAACP, the Leadership Conference 
on Civil Rights, the Southern Poverty Law Center, the Mexican 
American Legal Defense and Education Fund, the National Women's 
Law Center, the American-Arab Anti-Discrimination Committee, 
the Anti-Defamation League, the AFL-CIO, the Asian-American 
Justice Center, and a whole lot more. So I will put the whole 
entire list of support into the record along with the letters. 
So thank you very much.
    Ms. Townsend, it is always good to see you. She was until 
last year Homeland Security and Counterterrorism Adviser to 
President George W. Bush, where she chaired the Homeland 
Security Council, certainly one person that most people in this 
country, when you would be interviewed on television or 
elsewhere, would listen very carefully on a subject that 
affects every one of us. She advised the President on homeland 
security policy, anti-terrorism matters.
    I have been in meetings where the President has gone out of 
his way to praise the advice you have given.
    Previously, Ms. Townsend spent 13 years at the Department 
of Justice in a variety of senior positions, including counsel 
to the Attorney General for Intelligence Policy, which I 
believe was probably the first place we met; Acting Deputy 
Assistant Attorney General; Director of the Office of 
International Affairs; Chief of Staff to the Assistant Attorney 
General in the Criminal Division. She worked with Mr. Holder 
during his tenure as a U.S. Attorney and as Deputy Attorney 
General. She served as a Federal prosecutor in the United 
States Attorney's Office in the Southern District of New York. 
She began her prosecutorial career as an assistant district 
attorney in Brooklyn, New York. That was probably after Eugene 
Gold. The reason I mention him, he and I served on the board of 
the National District Attorneys Association. We oftentimes had 
meetings in his office.
    So thank you for appearing, and please go ahead and give 
your testimony.


    Ms. Townsend. Mr. Chairman, thank you for the warm welcome 
I have received. It really is a privilege and an opportunity to 
be here today before the Committee to testify in support of the 
nomination of Eric Holder to be Attorney General.
    You went through my resume, if you will, and I suppose to 
many here my appearance in support of Eric comes as something 
of a surprise, given my most recent position. But as you noted, 
my 23 years of public service included 13 years at the 
Department of Justice, where I worked both with Eric Holder and 
for Eric Holder at various points.
    Eric's career both as a superior court judge and as a 
career prosecutor in the Public Integrity Section of the 
Criminal Division rightly earned him both the respect and the 
affection of career prosecutors not only here in Washington, 
but around the country in the U.S. Attorneys' offices around 
the Nation. Not surprisingly, given his experience, I found Mr. 
Holder to be open-minded, fair, and respectful of the views and 
the opinions of the career lawyers.
    Mr. Holder was never reluctant to hear discussion between 
career and appointed staff if there was a disagreement among 
them, and oftentimes that was the case. He decided those issues 
in accordance with the facts and his best judgment, giving 
serious consideration and respect to the advice of the career 
lawyers. In his interactions with the Office of Intelligence 
Policy and Review, he took his national security 
responsibilities seriously, and he always made himself 
available whenever he was needed. He carefully reviewed the 
detailed documents prepared for submission to the Foreign 
Intelligence Surveillance Court when his approval was required 
and unfailingly deliberated on the questions and facts before 
signing such submissions.
    In yesterday's testimony, Mr. Holder spoke about being at 
the Department during the East Africa embassy bombings and in 
2000 during the Cole. One of the cases I thought I might 
mention to you, because I think it is very relevant to the 
execution of his national security responsibilities, was the 
successful prevention of the Millennium attack 1999 into 2000. 
As the Committee is aware, and as Director Freeh will recall, 
this was a very difficult time. We had very specific threat 
information. Both Attorney General Janet Reno and the Deputy 
Attorney General were personally involved in the Justice 
Department and FBI's investigation.
    We took risks to prevent that attack. We made considered 
legal judgments to prevent that attack. We applied the Foreign 
Intelligence Surveillance Act in a far more aggressive way that 
had ramifications beyond the disruption of the Millennium 
attack. That case could have, if tradition had held, been 
prosecuted under criminal wiretap laws. I believed at the time 
and recommended both to the Director and the Attorney General 
that we use the Foreign Intelligence Surveillance Act legally 
and appropriately in that investigation. Eric Holder was a part 
of that deliberation. They were persuaded that the use of the 
Foreign Intelligence Surveillance Act to disrupt that plot was 
correct. That plot was not only successfully disrupted, 
individuals who were later criminally prosecuted, the 
prosecutors in the Southern District of New York legally and 
appropriately used the take from the foreign intelligence 
surveillance, and that was upheld on appeal.
    That is the kind of man Eric Holder is. That was a 
difficult legal decision. It was a close call, and it was a 
decision that he was willing to take because he understood the 
seriousness of the threat.
    But I wish to be clear. I am not here because I believe 
that, if confirmed as Attorney General, Eric Holder will decide 
legal issues necessarily in the same way that I would. On the 
contrary, I expect that there would often be times where this 
was not the case.
    I am here because I believe Eric is competent, capable, and 
a fair-minded lawyer who will not hesitate to uphold and defend 
the laws and the Constitution of the United States. I know Eric 
to be an honest, decent man of the highest ethical standards, 
who both understands and appreciates the strong and proud 
traditions of the Department of Justice and will protect and 
honor them.
    The Attorney General position must be filled quickly. We 
remain a Nation at war and a Nation that faces the continuous 
threat of a terrorist attack. We cannot afford for the Attorney 
General position to sit vacant or for there to be a needlessly 
protracted period where the leadership of the Department is in 
    For these reasons, sir, I humbly and respectfully recommend 
that the Committee move expeditiously to confirm Eric Holder as 
an Attorney General of the United States.
    Thank you.
    [The prepared statement of Ms. Townsend appears as a 
submission for the record.]
    Chairman Leahy. Ms. Townsend, thank you very much. I 
appreciate that, especially, as you stated, there will be areas 
where you disagree with Mr. Holder. I think in my 34 years here 
there has never been an Attorney General, in a Republican or 
Democratic administration, included Attorneys General that I 
have voted for, that I have not found something where I have 
    Joseph Connor is the son of Frank Connor. Frank Connor was 
still a young man when he lost his life in a bombing at 
Fraunces Tavern in New York, a bombing that was conducted by a 
Puerto Rican nationalist group called the Armed Forces for 
National Liberation, FALN. Mr. Connor testified before the 
Senate Subcommittee on Foreign Relations in 1999 about the 
clemency that was granted to some FALN members. He worked with 
Senator Hatch to introduce the Pardon Attorney Reform and 
Integrity Act to Congress in 2000. I was touched also very much 
in reading your testimony, Mr. Connor--all of which will be 
placed in the record, of course--when you spoke about the fact 
that your father never got to see his grandchildren. My 
colleagues on this Committee have to hear my stories ad 
infinitum about my grandchildren. I think that is one of the 
greatest joys of life to have your grandchildren.
    So we thank you for coming back to the Senate. You have 
been here before, and please go ahead, sir.


    Mr. Connor. Well, thank you. Thanks for having me back. 
They say you love your children, but you really love your 
grandchildren, so----
    Chairman Leahy. Without taking up your time, I would add 
that I have told people that I have discovered this hidden 
clause in the Constitution which requires grandparents to spoil 
their grandchildren, then turn them back to the parents, who 
have to deal with the consequences.
    Mr. Connor. Oh, so that is what happens, I guess. Okay. 
Thanks for the insight.
    My name is Joseph Connor, and I am here, as the Senator 
said, for a second time, once again addressing the 
unimaginable, immoral, and really dangerous 1999 clemencies to 
16 Puerto Rican terrorists of Los Macheteros and the FALN. We 
will call them the FALN. These terrorists proudly claimed 
responsibility for over 130 bombings in the U.S., including the 
murder of my 33-year-old father, Frank Connor, as he ate lunch 
at Fraunces Tavern in downtown New York. It was January 24, 
    Despite the warnings and recommendations to the contrary 
from the FBI, the Bureau of Prisons, prosecutors, Janet Reno 
herself, then Deputy Attorney General and current Attorney 
General nominee Eric Holder yesterday flatly admitted 
recommending release of those terrorists.
    Upon hearing those words yesterday, some questions popped 
into my mind. One was: Did he actually believe in their cause? 
No. 2, did he recommend the release at someone else's 
direction, perhaps the President? And, No. 3, and maybe most 
disturbing, did he not know what they did? It seemed that a lot 
of the issues that were raised he claimed he didn't know about, 
from the surveillance tape of them building bombs to their 
threat of Judge McMillan at their sentencing. And that was 
    He admitted to have taken advice from people outside our 
Government--dignitaries, if you will, folks like Desmond Tutu, 
Jimmy Carter, Coretta Scott King--and ignore those people 
within our Government--the FBI, the Bureau of Prisons, the 
prosecutors. Something didn't add up.
    When we look back at the people whose recommendation he did 
take, on what information were they basing their 
recommendation? Were they told the ``political prisoner''--I 
put that in quotes--line that the pro-FALN people were passing? 
Or did they actually know the facts? Something tells me if they 
knew the facts, they wouldn't be recommending this.
    Putting aside as well documented involvement in the 
outrageous pardon of Marc Rich, the Attorney General nominee's 
egregious recommendation for playing Russian roulette by 
unleashing unrepentant terrorists on the American people 
against the advice of the FBI, Bureau of Prisons, prosecutors--
even Janet Reno herself--should disqualify him on its own 
    It is almost 10 years ago, but, incredibly, we are 
revisiting today the same issues, the recriminations of the 
hearings, and how sad that we have to go through this again. We 
knew the clemencies were wrong in 1999. After all, the Senate 
voted 95-2 to condemn them. Yet here we are contemplating the 
confirmation of the architect of that very release as the top 
law enforcement officer in our country? How can this be?
    If anything, the devastating attacks of 9/11, we should be 
more resolute in our opposition to anybody who would be soft on 
terror or support any terrorist organizations.
    If anyone needs to be reminded about what terrorism can do, 
give me a couple minutes.
    It was a beautiful day on January 24, 1975. I had just 
turned 9; my brother, Tom, had just turned 11. That night, my 
Mom was cooking us a dinner to celebrate our birthdays, and we 
were expecting our father home on time to celebrate with us.
    Well, after we got home from school, we found out that 
there was a bombing downtown. We didn't know my father was in 
it right away. My Mom didn't know he had a meeting that day. He 
wore an old suit when he wouldn't have expected to be with 
clients. But when she called up, he didn't answer. She knew 
then something was wrong.
    After hours, we finally got the news that he had been 
killed. He and three others were murdered that day, 
intentionally and, as we may find out later from Rick, who will 
give a bit more information, the bomb was meant to kill a lot 
more people than the four that it ended up killing.
    My Dad was only 33, as I mentioned. He was the only child 
of immigrants Thomas Connor and Margaret Maloney. His father 
was an elevator operator downtown, and his Mom was a cleaning 
lady at J.P. Morgan. She was so proud when she got him the job 
so he wouldn't be in a dangerous position. His friends were 
becoming cops and firemen or working in the subways. But he got 
a job in a nice office out of high school. And his was an 
American success story. He went to college at night. He worked 
his way up to an officer position at J.P. Morgan, and he had 
two sons, and he had made something of himself, from a cleaning 
lady to an office at the bank. It was an amazing story.
    Although my Mom is remarried to a fine man and my brother 
Tom and I have families of our own, not a day passes without us 
feeling the void that this has left in our lives. My father's 
death has become a wound, and it was reopened when the 
clemencies were offered, and it has been reopened now by this 
nomination. These terrorists took away my Dad's life. As you 
mentioned, he never got to see his sons graduate high school 
and college, meet his daughters-in-law, or be a grandfather.
    Now, we ask why. The kids ask why, what happened? It seems 
that it was all done for politics. Was it direction from the 
President to further his wife's Senate future? Or was it 
something else? Was it someone who believed in the cause of the 
    Who were the FALN? And like I said, Rick will get into it a 
little bit more, but contrary to the disingenuous claims we 
heard yesterday, there was nothing non-violent about these 
people. These people blew up 130 bombs in the U.S. They killed 
five people, and they meant to kill a lot more. They devastated 
lives and maimed.
    The day after their release, one of them was on with Tim 
Russert, and when asked about the Fraunces bombing, one of them 
released, one of these people who was non-violent, had nothing 
to do with it, said, ``Well, you know what? The restaurant 
didn't take the proper precautions,'' blaming someone else, 
never taking responsibility for what happened. And these people 
were released.
    On 9/11, my brother, Tom, and I commuted through the World 
Trade Center. We left. I said good-bye to him in the Trade 
Center. I went my way, he went his. At quarter to 9, I saw the 
North Tower explode out my window. I couldn't get Tom on the 
phone, and I called my cousin, Steve, who worked at Cantor 
Fitzgerald. Steve never answered. Steve was my father's godson. 
He was killed on 9/11.
    Tom and I got home that night safely to our families, but 
there are consequences. Terrorism cannot be treated as a 
political tool. It has to be treated for what it does. It kills 
people, and it hit our family very hard twice.
    Despite what Mr. Freeh just said, the clemency process was 
not followed properly. We were never informed as a family of 
their release, although I understand we were supposed to have 
been through the Victims Rights and Restitution Act of 1990. 
The terrorists did not request clemency. They did not express 
remorse. They were not required to provide information solving 
other crimes. They were allowed 30 days to decide to accept the 
conditions, and they were given conference calls between 
    Now, clemency is an individual grant, yet they were treated 
as a group, and that is not right.
    Supporters were given nine meetings with Mr. Holder and his 
group. You know how many we got? None. He never talked to us. 
Despite what he said yesterday, he didn't--there was no 
consideration to the victims, at least to the people I know.
    Had we been properly notified, we would have told him what 
happened, because it seemed like yesterday from the 
conversation he didn't know about the threats to the judge, he 
didn't know about them building bombs. It was a very disturbing 
moment in the interviews yesterday.
    The biggest issue that I read in the recently released 
memos, as it came from the Justice Department, was how the 
public relations fallout might be if these guys committed more 
crimes--not what might happen to those people who were injured 
by them, but what the public relations issues would be for 
Holder and his team if something went wrong.
    I have a whole litany of questions I would like to put into 
the record. I know I am kind of going late now. I can read them 
now, or I can do it at another time. But I have a bunch of 
    Chairman Leahy. I have read them, and if you want to flag 
some, go ahead.
    Mr. Connor. OK.
    Chairman Leahy. I am trying to give as much flexibility to 
all the witnesses as I can.
    Mr. Connor. I appreciate that. Look, I know I am going 
    Chairman Leahy. I know this is a difficult time. I am not 
trying to cut you off. Your whole statement, of course, will be 
made part of the record, but if there are some of those 
questions you would like to emphasize, please go ahead.
    Mr. Connor. Thank you. See, yesterday a lot of issues came 
up that caused my statement to change and my questions to 
change, because he said some things that were just a surprise.
    He admitted that he knew so little about the terrorists. As 
he testified yesterday, he hadn't seen the surveillance video, 
didn't know they had threatened the judge. How then could you 
know enough about the case to feel comfortable in releasing 
them? What does that say about the judgment there?
    He said none of these terrorists were part of any attacks 
that killed or hurt people. Given his limited knowledge on the 
subject, how could he possibly know that? And given what 
Ricardo Jimenez said on ``Meet the Press,'' that is just not 
    He took advice of others over his own due diligence, from 
what I could see, and that is irresponsible. It borders on 
    Now, I know he has a long record, and I know there are a 
lot of very good people here who have spoken to his successes 
in the past. But it is not unprecedented that one mistake can 
disqualify you. Look at what happened when Clinton had Zoe 
Baird and Kimba Wood. They were both very qualified people, and 
both of them had to withdraw their nomination because they did 
something like hire illegal aliens to work in their house and 
didn't pay taxes on them--which to me is far less egregious 
than what he did.
    He mentioned yesterday that Cardinal O'Connor supported 
clemency. That is not true. I have a letter from the Cardinal 
specifically saying he didn't, because I contacted the Cardinal 
at the time.
    We came here in 2000 and introduced the Pardon Attorney 
Reform and Integrity Act, and we warned at the time about 
future terrorist acts. And we hoped that by instituting this 
act, which never was instituted, that there wouldn't be 
releases like this, that there would be a light shining on 
people so everyone would know what the pardon attorney was 
doing and what the Justice Department was doing before the 
clemencies were released. And that is the transparency that we 
need, not yesterday in the meetings when Mr. Holder was asked 
to produce a document recommending the clemency, he didn't want 
to do it.
    Now, this new administration is supposed to be the most 
transparent in our Government's history, yet his Attorney 
General has no transparency.
    I will go now, but I urge the Senate to review Mr. Holder's 
record. Put aside any politics, put themselves in the shoes of 
ordinary Americans who have given them their trust and their 
vote, and decide if this man who recommended playing Russian 
roulette with American people by releasing unrepentant 
terrorists should be charged with protecting our fellow 
citizens. I think ordinary Americans would agree the answer is 
very clear.
    Thank you.
    [The prepared statement of Mr. Connor appears as a 
submission for the record.]
    Chairman Leahy. Thank you, Mr. Connor.
    Mr. Richard Hahn is the President and CEO of R. Hahn & 
Company, Inc., a security consulting and investigating company 
specializing on counterterrorism and homeland defense. He 
retired from the FBI after a distinguished career that spanned 
33 years as a senior supervisory agent and as a special agent. 
As a member of the FBI, he investigated domestic and 
international terrorist organizations, specialized in events 
carried out by the Armed Forces of National Liberation, or the 
FALN. And he testified before this Committee in 1999, 10 years 
ago, about the FALN clemencies.
    Thank you for coming back and testifying again. Of course, 
your whole statement will be made part of the record. Please go 
ahead, Mr. Hahn.


    Mr. Hahn. Thank you, Mr. Chairman. My purpose in being here 
today is to make clear just who and what the FALN and the 
Macheteros were.
    These organizations were no less terrorists than any of the 
terror organizations recognized by this Government today. These 
were clandestine organizations with cellular structure and 
secret membership. This makes knowing who did what acts inside 
these conspiracies difficult, if not impossible. But despite 
this, through investigation some acts attributable to those who 
received clemency are known.
    Former FALN member Freddie Mendez chose to cooperate with 
the Government after being convicted on Federal charges, but 
before being sentenced. Mendez described being mentored by FALN 
leader Oscar Lopez, one of those offered clemency. Lopez taught 
Mendez how to detect and avoid surveillance, use dead drops for 
communications, the code words used by the FALN, how to operate 
safe houses, and how to build a bomb.
    Mendez participated in the preparation of bombs in October 
1979 which were coordinated with the Macheteros. On that 
occasion, he was assisted by Oscar Lopez and Ida Luz Rodriguez, 
and carried a bomb with Ricardo Jimenez to the Democratic Party 
headquarters in Chicago with the intention of placing it in 
their offices. Three bombs were placed in Chicago that day. He 
participated with Oscar Lopez, Dylcia Pagan, Ida Luz Rodriguez, 
Haydee Torres, Luis Rosa, Ricardo Jimenez, and William Morales 
in the armed assault on the National Guard Armory in Oak Creek, 
Wisconsin, to steal weapons and explosives. Employees were put 
on the floor, guns placed at their heads, and they were 
repeatedly threatened during the takeover.
    He also participated in the armed takeover of the Carter-
Mondale campaign headquarters in Chicago for the purpose of 
intimidating campaign workers and delegates to the convention. 
Mendez named participants in the planning and execution of this 
invasion as himself, Oscar Lopez, Carmen Valentin, Dylcia 
Pagan, Ricardo Jimenez, Ida Luz Rodriguez, Luis Rosa, and 
Alicia Rodriguez. It is noted that they carried rifles and a 
variety of pistols into the assault, and, again, workers were 
threatened, bound, gagged, and the offices ransacked.
    Mendez was arrested in Evanston, Illinois, along with 
Carlos Torres, Haydee Torres, Adolfo Matos, Ricardo Jiminez, 
Dylcia Pagan, Ida Luz Rodriguez, Alicia Rodriguez, Luis Rosa, 
Elizam Escobar, and Carmen Valentin. Some of these conspirators 
had just participated in the armed takeover of a truck rental 
agency, not only stealing a truck but robbing the patrons of 
personal effects. The group had gathered in Evanston for the 
express purpose of robbing an armored car that serviced 
Northwestern University. All were wearing disguises and armed.
    In a separate investigation of an FALN safe-house apartment 
operated by Alejandrina Torres and Edwin Cortes, over 21 pounds 
of dynamite, 24 blasting caps, four handguns, over 3,000 rounds 
of ammunition were discovered and seized. Also found were 
disguise materials, false identification, and terrorist 
training manuals. Cortes and Torres were videotaped as they 
built firing circuits for bombs. They also were surveilled 
electronically and physically as they made plans and traveled 
to Wadsworth Veterans Hospital in Kansas with weapons and 
explosives to attempt the escape of FALN leader Oscar Lopez. A 
second safe-house apartment in Chicago searched in April 1983 
was found to contain a semiautomatic rifle, silencers, 
bulletproof vests, and documents including intelligence 
materials from the police in Puerto Rico. Cortes and co-
conspirator Alberto Rodriguez were surveilled electronically as 
they plotted an armed robbery and subsequently, with 
Alejandrina Torres, as they planned bombings of military 
installations in Chicago.
    Regarding other crimes of the FALN, as you know, they 
engaged in a campaign of bombings that started in 1974 and did 
not end until 1983. This campaign encompassed over 100 
explosive and incendiary attacks, killed five and maimed scores 
of others, including several police officers. Some of these 
attacks were designed to kill. In December 1974, the FALN 
called in a report of a dead body in a building in Spanish 
Harlem. A booby-trapped explosive device hung on the opposite 
of the main entry door. Exploding as the door opened, a New 
York P.D. officer was blinded in one eye and severely maimed. 
Ironically, the officer, Angel Poggi, was Puerto Rican himself, 
and even more incredible, it was his first day on the job.
    In January 1975, the bombing of Fraunces Tavern killed four 
and wounded 60. Credit was claimed within minutes by a written 
FALN communique.
    In August 1977, the FALN conducted the daytime bombing of 
the employment offices of Mobil Oil in Manhattan, killing one 
and maiming several others.
    The Macheteros have a similar history of terrorist acts. In 
1978, the Macheteros ambushed a patrol car of the Police of 
Puerto Rico in an attempt to steal weapons, uniforms, and the 
patrol car itself. One of the officers was killed as he 
resisted the ambush. The other, stripped of his uniform was 
left handcuffed to a tree at the side of the road. The 
Macheteros proudly claimed credit for this act in a written 
    In October 1979, the Macheteros, in concert with the FALN, 
conducted bombings on the island of Puerto Rico while 
simultaneously bombings were conducted in the U.S. Credit for 
these were claimed by a joint communique to the press which 
bore the logos and names of both the FALN and the Macheteros.
    In December 1979, the Macheteros, with other groups, 
conducted a well-coordinated attack on a Navy transport bus at 
Sebana Seca, Puerto Rico. The bus was blocked on a public 
highway. Then another vehicle driven by the terrorists pulled 
into the opposing lanes of traffic, shot the bus driver, and 
proceeded to rake the side of the bus with automatic weapon 
fire. Two died and many more were wounded.
    In January 1981, the Macheteros bombed jet aircraft of the 
Puerto Rican National Guard, resulting in tens of millions of 
dollars in damage to the specialized aircraft.
    In 1983, the Macheteros fired LAW rockets at the FBI office 
in Hato Rey, Puerto Rico, and at the U.S. Courthouse in Old San 
Juan, Puerto Rico.
    And, finally, in the fall of 1983, the Macheteros 
engineered one of the greatest thefts in U.S. history, the 
theft of over $7 million in U.S. currency from a Wells Fargo 
depot in West Hartford, Connecticut. Much of the money ended up 
in the hands of Cuban agents.
    All of this is a matter of public record not only 
accessible to the Department of Justice, but to any motivated 
citizen, who wishes to find these facts. All this makes clear 
that these conspirators were not merely activists but, in fact, 
were indeed terrorists.
    In my opinion, granting them clemency in the absence of any 
cooperation or understanding of who committed the most heinous 
of crimes remains a compromise of our justice system and 
reflects a failure of the Government personnel with oversight 
of such matters to competently carry out their duties.
    [The prepared statement of Mr. Hahn appears as a submission 
for the record.]
    Chairman Leahy. Thank you very much.
    Our last witness is Stephen Halbrook. He has practiced law 
for over 30 years. He has authored or edited seven books and 
dozens of articles related to the right to bear arms. He is 
also the author of an amicus brief in a recent Second Amendment 
case before the Supreme Court, District of Columbia v. Heller, 
submitted on behalf of Vice President Cheney and 250 members of 
the House of Representatives.
    Mr. Halbrook is known in my State, a State which actually, 
as I mentioned yesterday, has no gun laws except during hunting 
season. And then we have certain restrictions if you are going 
to hunt on the Statehouse lawn. I also noted the fact that I 
own numerous weapons, and I am almost tempted--well, I will 
tell the story about Director Freeh and myself target shooting 
in my backyard in Vermont later on.
    Go ahead, Mr. Halbrook.


    Mr. Halbrook. Thank you, Mr. Chairman. Good morning, 
Senator Leahy and Senator Specter. It is a real pleasure to be 
    I did file the amicus brief on behalf not only of 250 
representatives, but also 55 Senators, including a majority 
members of this Committee, in the Heller case. Heller, as you 
know, held that the Second Amendment means what it says. The 
right of the people to keep and bear arms means that 
individuals have that right.
    I am author of the book ``The Founders' Second Amendment'' 
and numerous other publications. I have done a lot of 
litigation on this subject in the Supreme Court. I am outside 
counsel for the NRA. I am not representing them here today.
    This is an issue for which we have an explicit 
constitutional guarantee. We live in an age when people invent 
rights, and they seem to be implicit in the Constitution. And I 
like Senator Leahy's ``the right to spoil grandchildren'' as an 
implicit constitutional right. It is a lot more innocuous than 
other ones that might be invented, and I fully support that 
    As you know, Mr. Holder filed--rather, joined in an amicus 
brief in the Heller case, denying that the Second Amendment 
protects any individual right and seeking to uphold the total 
ban on handguns by D.C. residents.
    My background, by the way, I have appeared before this 
Committee a number of times, going back to the 1982 
Subcommittee on the Constitution hearing and report which was 
entitled ``The Right to Keep and Bear Arms.''
    Serious concerns I think are raised about Mr. Holder's 
position. Throughout his career he has denied that the Second 
Amendment basically means anything in regard to private 
citizens, and he has advocated basically the criminalization of 
what many people consider to be their constitutional rights. 
And I am talking about, for example, the advocacy of making it 
a 5-year felony to possess an unregistered firearm in the 
District of Columbia. That was when he was U.S. Attorney. And 
there have been many other draconian proposals that he has set 
    I listened carefully yesterday to Mr. Holder's testimony, 
in particular, the question that if the Supreme Court 
reconsidered the issue of the meaning of the Second Amendment, 
whether it recognized individual rights. It does refer to the 
right of the people, after all, not some kind of elusive 
collective right that doesn't really protect anybody, and if 
the Supreme Court revisits that issue, what position would you 
take? And Mr. Holder responded that first it would depend on 
the facts, even though facts really don't matter in the 
interpretation of a constitutional provision. And he did say 
that stare decisis is one consideration that would be taken 
into account. I think given that he has supported the so-called 
collective rights view for his career, it is most likely that 
he would, indeed, support a reconsideration of the meaning of 
the Second Amendment.
    And, in addition to that, Mr. Holder, based on his career-
long proposals for draconian firearm bans, would be likely to 
say that nothing really violates the Heller decision if it, 
indeed, stands the test of time.
    I am not going to get into any policy questions, but I did 
take note yesterday that he advocated the reenactment of the 
so-called assault weapon ban as a permanent fixture. The Heller 
decision did talk about firearms that are commonly possessed by 
law-abiding people for lawful purposes as being protected by 
the Second Amendment. It might depend on what a person 
arbitrarily chooses to call by this pejorative term ``assault 
weapon'' whether that test would be met or not. But there is a 
lot of meat in the Heller decision that basically says that 
banning commonly possessed firearms would violate the Second 
    He mentioned that what he called the ``gun show loophole'' 
must be closed, and it reminds me of his prior advocacy of a 
Federal law that would require background checks on all private 
intrastate transactions involving firearms, presumably making 
it a felony to give a firearm to your grandchild as a gift 
without a Federal background check.
    And, also, he has advocated the registration of all 
firearms, that all of those background checks on private 
transfers would be registered with the Bureau of Alcohol, 
Tobacco, Firearms, and Explosives so we would have a 
registration system of firearms.
    He was asked yesterday about proposals to ban firearm 
possession by individuals who are in the age group 18 to 21 
years old, and that was a proposal that he supported. Mr. 
Holder supported H.R. 1768 back in 1999. So you would have the 
phenomenon of a person who is serving in the armed forces, 
eligible to do so at age 18, eligible to vote, serve on juries, 
and it would be a Federal felony for them to possess a firearm.
    Now, the Attorney General not only prosecutes Federal 
crimes and influences courts on the meaning of constitutional 
rights. The Attorney General also administers and enforces the 
Gun Control Act through the Bureau of Alcohol, Tobacco, 
Firearms, and Explosives.
    For his entire career, Mr. Holder has denied that 
individuals have any Second Amendment rights. On behalf of law-
abiding citizens, he has advocated that firearms must be 
registered, and the possession of an unregistered firearm be 
punished with 5 years' imprisonment. The millions of Americans 
who exercise their Second Amendment rights rightly feel uneasy 
about this nomination.
    Much has been said about unjust prison sentences imposed on 
persons who possess crack cocaine, not to mention the rights of 
alleged terrorists held at Gitmo and other places. And we would 
hope for sympathy to be shown for Americans who bother no one 
and who merely wish to exercise their Second Amendment rights 
without being sent to prison because they possess a gun without 
the Government's permission.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Halbrook appears as a 
submission for the record.]
    Chairman Leahy. Thank you. It is interesting hearing what 
you are saying and listening to Mr. Holder yesterday. I have a 
home--or a house in Virginia that I use when I am down here. My 
home is in Vermont. I have often been struck that in your State 
of Virginia, your gun laws are considerably more restrictive 
than the laws are in my State of Vermont. For example, you 
couldn't carry a concealed weapon without a permit in Virginia. 
You could in Vermont. I mean, you could this afternoon if you 
were there.
    I own at least a dozen weapons of different sorts ranging--
well, of all calibers, and I enjoy shooting in my backyard. You 
cannot do that in Virginia.
    Mr. Holder--I asked him would he support Federal laws that 
would restrict Vermont's laws other than the obvious ones about 
felons who are restricted. And that has been upheld by the 
Court in their purchase and use of weapons. I asked him if he 
would support restricting Vermont laws. He said no. It is 
interesting. And we have considerably less laws than you have 
in Virginia on firearms.
    Now, Judge Freeh, we talked about your unique perspective. 
And, Mr. Halbrook, I will let you go back to that if you care 
to after. But let me just--the thought occurred while you were 
    Judge Freeh, you have this unique perspective and you did 
work closely with Eric Holder, as you have described, when you 
were FBI Director. You said sometimes you agreed, sometimes you 
    You certainly been very critical of the pardon of Marc 
Rich, and you know that both I and Senator Specter have been 
very critical of that pardon. Of course, it was a pardon issued 
not by Eric Holder. It was issued by then-President Clinton. 
And the clemency granted to members of the FALN, you were 
critical of that, as was I. But the clemency was granted by 
President Clinton.
    But notwithstanding these disagreements, if he is confirmed 
as Attorney General, he is going to be Attorney General of all 
the country. Both you and I will be in the country served by 
this Attorney General. Notwithstanding your past disagreements, 
you do strongly support the nomination of Eric Holder. Is that 
    Mr. Hahn. Yes, sir. I do.
    Chairman Leahy. Thank you.
    The question I always ask--and I used to ask this of 
prosecutors in my office, and I think it is a mark of a 
prosecutor. I ask if they will be politically independent, 
follow the rule of law, not feel they have to be subservient to 
any political party. I certainly prosecuted members of both the 
Republican and Democratic Party, including a Chairman of my own 
party. The Attorney General has to be independent of the 
President who nominates him.
    Do you have any question in your mind that he would be 
politically independent?
    Mr. Freeh. No, I don't. I mean, as you well put it, Mr. 
Chairman, the Attorney General is not the President's lawyer. 
We have had, unfortunately, in that office, I think at times, 
people who thought that was the case. But he is not the 
President's lawyer. The President has a White House counsel for 
those purposes. And I know that Eric Holder understands that 
difference. I think he would be very quickly able to say no to 
the president if he disagreed with him. And I think that is the 
confidence and trust that we need in that position.
    Chairman Leahy. In fact, would you agree with me that a 
President is ill served by an Attorney General who is unwilling 
to say no to him if he thinks that a President is wrong?
    Mr. Freeh. Of course he is. It not only subverts the 
purpose of the Attorney General, but it puts the President in a 
very vulnerable position.
    Chairman Leahy. And you dealt with him when he was Deputy 
Attorney General and you were Director of the FBI. We have 
another FBI Director now, well respected by this Committee. Do 
you have any doubt that if the current Director were to come 
into an Attorney General Holder and say, Mr. Attorney General, 
I think you are wrong on this and here is why, do you have any 
doubt that he would get a fair and complete hearing?
    Mr. Freeh. No. He would get a completely fair hearing, and 
I think Eric would expect that from his staff. And I think the 
people in the career staff who did not do that would not be his 
trusted advisers and would not be serving the country in their 
    Chairman Leahy. And, Mr. Canterbury, obviously the 
Fraternal Order of Police has had some disagreements, 
certainly, on the clemency issue of the FALN, and I recall your 
organization testifying to Congress. In fact, we asked you to 
testify to Congress at that time.
    But do I understand your testimony correctly that you 
believe that Eric Holder will be a strong Attorney General, 
especially on law enforcement matters?
    Mr. Canterbury. Based on the totality of his record, we 
absolutely believe that. We sit here like we did in 1999, we 
abhor the clemency that was granted. We thought it was wrong, 
just like Director Freeh. We still think it was wrong. But we 
also believe based on the information in the record of Eric 
Holder that, given the position of authority of the Attorney 
General versus a Deputy Attorney General and the fact that 
clemency was a Presidential issue and not his sole 
recommendation, we believe that he would be fair, and we look 
at it from the totality of circumstances and his career, and we 
feel comfortable after an exhaustive review of his decisions as 
a judge and as a prosecutor.
    Chairman Leahy. And your support of him, you are joined by 
virtually every national law enforcement organization there is.
    Mr. Canterbury. Every organization we know of, Senator.
    Chairman Leahy. I am sorry. I went 32 seconds over my time.
    Senator Specter.
    Senator Specter. Mr. Connor, thank you for your appearance 
here today. You have put a significantly different dimension on 
the hearing from other items that we have heard, and sometimes 
these matters on paper don't really reflect the kind of injury 
and the kind of scarring which is involved. But I think it is 
very, very important to bear in mind what the victims have to 
say and how the victims feel about it.
    Mr. Connor. Thank you.
    Senator Specter. When I bumped into you yesterday in the 
corridor, you told me neither you nor your family have come to 
closure. I can see it as you described the wounds, and I think 
it was really unfortunate that you weren't consulted and at 
least given an opportunity to be heard about it.
    Director Freeh, welcome again to this Committee. A 
distinguished career: FBI agent, a judge, Director. You have 
come down harder on the characterizations of what Mr. Holder 
has done than anybody else in the hearing. You say that the 
Rich pardon was a ``corrupt act.'' You said it twice. You said 
it was a ``terrible mistake.'' He allowed himself to be ``used 
and co-opted.'' Pretty tough words. Tougher than Mr. 
Canterbury, who characterized it as ``abhorrent.'' You said 
that he will be independent because the Committee will make 
sure about that.
    Well, my experience, 28 years on this Committee, is we have 
been more ignored by Attorneys General than we have been able 
to influence them. Every time we seek information, letters 
signed jointly by Chairman Leahy and Ranking Member Specter or 
Chairman Arlen Specter and Ranking Member Leahy, we get nothing 
in return.
    You say the media will make sure? Absolutely not. The media 
doesn't know what is going on. Sometimes they find out, but 
they can't stop it.
    In the limited time, I am not going to pursue that. I 
wanted to get into one question with you. With respect to the 
independent counsel and campaign finance--and I pressed Mr. 
Holder very hard about that, and I could only comment about a 
bit of that because of the limitation of time. But there is a 
subject I want to take up, and this is going to be what I am 
going to have to say, Mr. Chairman, so I may take a little 
longer, if I may.
    I chaired the full Committee on the Rich pardon. I know a 
lot about that, more than we could get into. But on the 
independent counsel investigation, I chaired the Committee, and 
you made a statement: ``It is difficult to imagine a more 
compelling situation for appointing an independent counsel.''
    Difficult to imagine a more compelling situation for 
appointment of independent counsel.
    That is why it seemed to me that a man of Mr. Holder's 
status, intelligence, experience, that it was inexplicable. 
``Inexplicable'' is the word that I apply also to the Rich 
pardon and also I apply to the FALN situation.
    The matter is still under investigation, as you have said--
FALN; a situation where two of the people wouldn't even accept 
clemency, that the Federal Government, the U.S. Government had 
no standing to convict them. They wouldn't accept clemency. 
People involved in murders and bank robberies--you could have a 
parade of victims that would fill a stadium.
    But on the issue of independent counsel--and, Mr. Chairman, 
I ask consent that the memorandum from Mr. Freeh to the 
Attorney General be included in the record.
    Chairman Leahy. Of course. Without objection.
    Senator Specter. As well as the memorandum I am about to 
refer to now.
    Chairman Leahy. Whatever memos that you wish to be 
included, they will be included.
    Senator Specter. Mr. Freeh, this is a matter you and I 
talked about when I conducted the investigation in the year 
2000, and I now refer to a memo, and I talked to you about it a 
few moments ago before the hearing started. No surprises. No 
``gotcha's.'' Everything on top of the table.
    This is a memorandum which you wrote to Mr. Esposito, one 
of your top deputies, about a meeting he had with Mr. Lee 
Radek, who was the head of the Public Integrity Section of the 
Department of Justice. And this is what it says in part: ``I 
also advised the Attorney General of Lee Radek's comment to you 
that there was a lot of `pressure' on him and PIS''--Public 
Integrity Section--``regarding this case''--campaign finance 
investigation--``because the Attorney General's job might hang 
in the balance (or words to that effect). I stated that these 
comments would be enough for me to take him and the Criminal 
Division off the case completely.''
    This memo is dated December 9, 1996, and the background was 
that President Clinton had been reelected, and Attorney General 
Reno had said she wanted to stay on publicly, and she hadn't 
been reappointed. And then there is this meeting between your 
top deputy and one of her top deputies in effect saying ease 
off the campaign finance investigation.
    And you complain in this memo, which I won't read fully 
because of the limitation of time--that the FBI ought to take 
over. The FBI had been kept out of the investigation.
    Now, that is the backdrop of what is happening in the 
Department of Justice, where Mr. Holder is the deputy, where 
they are bringing the issue to the FBI to ease off so the 
Attorney General's job will be safe.
    Now, how do you evaluate that in terms of politics, rank 
politics, reappointment of a public official interfering with 
investigation, law enforcement, and the rule of law?
    Mr. Freeh. Well, as I said, I couldn't think of a more 
compelling case to go to an independent prosecutor, but let me 
just put that in perspective. And we have spoken about this 
    That was not a statement, of course, by the Attorney 
General. It was by her Public Integrity Section chief.
    Senator Specter. Well, now, wait a minute, Mr. Freeh. Do 
you think that Radek did that all on his own?
    Mr. Freeh. Well, I don't know. I never got a chance to 
cross-examine him.
    Senator Specter. Of course, you don't know, but--well, I 
will draw my inference. Radek is doing his boss' bidding. Now, 
that happens occasionally.
    Mr. Freeh. Well, I would draw a different inference, but I 
would say the following: That statement was alarming enough, 
together with all the other information we had, that I renewed 
my recommendation that this case go to an independent 
prosecutor. The Attorney General disagreed. We had a very 
strong, perhaps the strongest disagreement in 8 years, over 
that issue.
    Eric Holder, just to put it into perspective, was, of 
course, aware of this--he was the deputy--went out of his way 
with me and the Attorney General to say that, you know, Louis 
has a different position, we have to respect that position, and 
actually supported the fact that I was taking a different 
position, which is, again, how I adjudge him to be willing and 
able to speak up and be independent.
    I didn't agree with the Attorney General's determination, 
but she made that determination subject to what she believed to 
be the right factors, and we disagreed.
    Senator Specter. Well, as the record will show, this 
memorandum you sent was sent as a copy to Mr. Holder. I will 
let the memo speak for itself, where Radek, one of her top 
deputies, talks about a lot of pressure on him and the Public 
Integrity Section. I think it is an obvious conclusion that 
pressure is coming from the Attorney General.
    Mr. Freeh. Yes, well, I don't agree with you, respectfully, 
    Senator Specter. Well, OK. Why not? Why not?
    Mr. Freeh. Well, because there was never a conversation 
that we had where she indicated and, more importantly, any 
action that she ever took that we were aware of--and we were 
pretty aware of everything that was going on in the case--that 
at all indicated, you know, her aptitude or willingness or even 
consideration of trying to interfere with this investigation in 
any manner, so----
    Senator Specter. Interfere?
    Mr. Freeh. Yes.
    Senator Specter. Well, you weren't on the case in any real 
sense. This memorandum particularizes your request to her to 
get these people off the case who were submitting to pressure 
and to put the FBI in as the lead investigative agency. You 
weren't the lead investigative agency, were you?
    Mr. Freeh. Not at that time, no.
    Senator Specter. Mr. Freeh, let me move to another very 
delicate subject, one which you and I discussed years ago and 
talked about a few minutes ago. You turned down the White House 
request for a briefing on campaign finance reform. Would you 
testify as to the circumstances of that matter?
    Mr. Freeh. Yes. Well, we had a criminal investigation 
called the ``campaign contributions case,'' and the subjects of 
that investigation, as you know, were senior people in the 
White House, including the President, the Vice President, and 
others. And at some point, the White House wanted to be briefed 
on the criminal case, which was also the intelligence operation 
by the Chinese Ministry of Intelligence in the United States to 
which we have documentation--this Committee has looked at it--
interfering with the electoral processes here in the United 
States. So we decided----
    Senator Specter. Interfering with the electoral process 
    Mr. Freeh. In the United States. So we decided that we 
could not brief the President and senior officials, who were 
also subjects of the investigation, on the investigation. It 
seemed to me a pretty no-brainer with respect to conflict, also 
protecting the integrity of the investigation. So the Attorney 
General and I discussed it, and we made a decision not to brief 
them on the criminal aspects of the case.
    Senator Specter. Was there any aspect of any other 
governmental function, foreign policy or anything else, beyond 
the criminal investigation?
    Mr. Freeh. There was, and that part of the case was briefed 
to them. In other words, Chinese intelligence operations, we 
briefed the National Security Adviser----
    Senator Specter. But you declined to brief the President.
    Mr. Freeh. Oh, I don't think he asked me for a briefing.
    Senator Specter. Well, could it have been a part of the 
briefing that the President did ask you for?
    Mr. Freeh. Well, no, he didn't. He didn't ask me for any 
briefing at all, actually. It was the National Security 
Adviser, and we briefed them on everything except the criminal 
aspects of the case for which subjects in the White House were 
now under investigation.
    Senator Specter. You say the White House asked for the 
    Mr. Freeh. The National Security----
    Senator Specter. Griffin Bell said the White House doesn't 
ask for things.
    Mr. Freeh. The National Security Adviser.
    Senator Specter. OK. Well, I am concluding now. The 
inferences I draw--and I will give you an opportunity to 
disagree with me. The inferences that I draw is that this 
investigation was right to the top--the President, as you 
testify, the Vice President, the Attorney General's job, the 
question about independent counsel as to the Vice President, 
the President being involved.
    I had told you, when we talked about it at the time--you 
and I and Fred Thompson had a conversation--that I thought you 
were on very shaky grounds in not responding to a President's 
request. If you had evidence that might activate the 
impeachment process, you ought to go to the Speaker of the 
House. You came to me. I had just been Chairman of 
Intelligence, and Fred Thompson was Chairman of campaign 
finance reform.
    Well, I will let these facts speak for themselves as to 
what kind of pressure there was and whether Mr. Holder was a 
party to a matter which succumbed to political pressure.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Sessions.
    Senator Sessions. Thank you.
    Chairman Leahy. Senator Sessions was the only one who was 
able to claim any kind of direct connection to the nominee 
yesterday, because the nominee's wife is from Alabama. Her 
family is from Alabama.
    Senator Sessions. And they are a remarkable family she has 
and a remarkable sister particularly, a historic figure in the 
civil rights movement.
    Let me just say, Mr. Freeh, thank you for coming. And the 
matters that we are discussing here, as you can tell from 
Senator Specter's remarks, were pretty big deals at the time, 
were they not? I mean, this is a very intense situation, a very 
difficult time for you and the FBI during all these periods of 
allegations and campaign contributions and so forth.
    Mr. Freeh. Yes, sir, they were.
    Senator Sessions. I just want to say this: I believe 
Senator Specter felt the pressures, he felt the development of 
the investigations, and Senator Specter was asking the tough 
questions to find the truth, as he always tries to do, and felt 
that there was political efforts to block that, to block the 
truth from being discovered, which is not consistent with the 
highest ideals of American justice. And it was a very difficult 
time. I remember it well.
    So I like Mr. Holder. I think he has a lot of fine 
qualities. But I think it is appropriate that this be inquired 
into. I thank you for your integrity in your testimony and in 
your work at the time.
    With regard to the pardons, Mr. Freeh, your Department of 
Justice experience, I think maybe the only panelist--maybe Ms. 
Townsend did, too, previously. But there is a reason, is there 
not, that we have a pardon attorney? I mean, thousands of 
people ask for pardons every year or commutations of sentences. 
The President--I think the last two or three Presidents have 
served 8 years, gave about 400 or 500. The vast majority are 
    I know of a case where a former public official in Alabama 
in his 70s and reaching the end of his life--maybe 80s--was 
convicted 40 years ago. He has contributed to his community 
ever since. He would like a pardon. I doubt he will get a 
pardon. Thousands are turned down, see, more deserving than the 
ones that got approved. That is what upsets me, and that is 
what caused me to question my friend, Mr. Holder, a man I 
respect very vigorously, at the time of the FALN pardon.
    So everybody can make a mistake, and somebody said the best 
spin you could put on this is that Bill Clinton could talk 
anybody into anything. So if he wanted it, maybe he just talked 
Mr. Holder into doing something he really didn't want to do, 
and he tried to resist but just couldn't resist. Maybe that is 
what happened, but it was a big mistake, I think.
    Mr. Hahn, yesterday I compared the fact that some of these 
people didn't actually murder somebody or set off a bomb to the 
fact that neither did Osama bin Laden or Khalid Sheikh 
Mohammed. They didn't actually do it; they got people who flew 
the airplanes and caused all the destruction. And Mr. Holder 
responded that this was not in the same category and that it 
was not his understanding that any of the terrorists, FALN 
terrorists, were ``heads of the organizations and leaders.''
    What is your evaluation of that?
    Mr. Hahn. Well, first of all, Senator, in fact, Oscar Lopez 
Rivera is and was a leader of the FALN. So there is no question 
as to whether or not----
    Senator Sessions. So he was in error in his memory or 
failed to know that when he recommended the pardon.
    Mr. Hahn. Correct. And the second point, of course, is 
these are clandestine organizations with secret membership. Who 
did what acts remains unknown. So it could very well have been, 
in fact, Oscar Lopez Rivera told Freddie Mendez that he had 
participated in bombings both in the United States and Puerto 
    Now, that is pretty amazing since the FALN never claimed 
credit for any bombings in Puerto Rico, but other groups did. 
So did he act on behalf of other groups when he was there? We 
don't know the answer to those questions. So we really don't 
know whether or not Oscar Lopez or any of these other people 
may have been involved in acts in which people were killed.
    Senator Sessions. Now, Mr. Freeh, that is why you go 
through the pardon attorney process. You remember Kathryn 
Love--I mean, Margaret Love, the former pardon attorney?
    Mr. Freeh. Yes, sir, I know her.
    Senator Sessions. For some reason, Mr. Holder removed her, 
I understand. She was, I thought, a woman of great integrity 
and handled the job--she was a Democrat, but she handled the 
job exceedingly well. But, at any rate, those are the kind of 
facts that, if you go through the formal process, the pardon 
attorney gets, does he not?
    Mr. Freeh. He does. He does.
    Senator Sessions. And you avoid mistakes when you do that, 
and you also seek out the opinions of the prosecutors who tried 
the case and the agents who investigated the case. I just feel 
like that was a very unwise thing, I mean, how that went along.
    Mr. Connor, thank you for sharing the human perspective on 
this. I appreciated the little opportunity to chat with you 
    Mr. Connor. I appreciate that, Senator.
    Senator Sessions. You know, one of the things I think I 
shared with you that was troubling to me was, after such a big 
controversy over this pardon, the Senate voted 95-2, Chairman 
Leahy and all the members of our Committee voted to deplore 
President Clinton's pardon. The Marc Rich pardon was done not 
much longer after that. So, Mr. Chairman. I will wrap up.
    I guess I will ask Mr. Hahn or maybe--well, let me ask Mr. 
Freeh. It strikes me that after all of that flap over the FALN 
pardon that the Deputy Attorney General who was handling these 
matters should have been even more resistant to the Marc Rich 
pardon, which you have considered to be corrupt, and should 
have done everything possible to resist it, and certainly 
shouldn't have said, ``I am leaning toward it,'' but should 
have said, ``It is the position of''--``Mr. President, you can 
do what you want, but my position is you should not execute 
this pardon.''
    Mr. Freeh. Yes. No, Senator, you are absolutely right. You 
were a lead prosecutor. You were responsible for an office. You 
know, I was, as I mentioned before, the Deputy U.S. Attorney in 
the Southern District. I went over to the Swiss authorities to 
negotiate for Marc Rich's arrest. There was nobody more 
outraged at that pardon than me and my colleagues in the 
Southern District of New York.
    But I did say earlier this morning, you know, the White 
House went to extraordinary lengths to deceive the Attorney 
General, myself, the Department of Justice, and everyone about 
who was on the secret pardon list, whether it is a pay-for-play 
list or whatever you want to call it.
    But, you know, to put Eric Holder's position and 
victimization in perspective, as I said, I had two FBI agents 
on inauguration morning--8 years ago next week, I had two FBI 
agents standing in the cold outside of the west gate of the 
White House, because that was the only way we were going to see 
the publicly posted list of people who were pardoned.
    So the extraordinary lengths that they went to--and Marc 
Rich's lawyer being a part of that cabal--I don't think it is 
fair to put that blame totally on Eric Holder. He takes 
responsibility, and he will never make that mistake again. But 
I think, as Senator Warner said yesterday, he is learned from 
that mistake, and that should certainly not be the basis upon 
disqualifying him for a job which I think he is going to do 
with excellence.
    Senator Sessions. Thank you. I think you framed the issue 
for the Senate very well.
    Mr. Chairman, thank you for allowing us to have extra time.
    Chairman Leahy. Thank you. Again, I am going to put in the 
rest of the letters from victim's advocates and all the law 
enforcement in the record.
    We will keep the record open until the close of business 
today. I thank all of you for being here. I know how busy you 
    Judge Freeh, you said that you were heading to Vermont this 
afternoon. I want you to know that at my home this morning in 
Vermont, the temperature was 24. That is 24 below zero.
    Mr. Freeh. Thank you, sir.
    Chairman Leahy. Thank you. We stand in recess.
    [Whereupon, at 11:51 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record