[Senate Hearing 111-403]
[From the U.S. Government Publishing Office]
S. Hrg. 111-403
NOMINATION OF ERIC H. HOLDER, JR., NOMINEE TO BE ATTORNEY GENERAL OF
THE UNITED STATES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
----------
JANUARY 15 & 16, 2009
----------
Serial No. J-111-2
----------
Printed for the use of the Committee on the Judiciary
NOMINATION OF ERIC H. HOLDER, JR., NOMINEE TO BE ATTORNEY GENERAL OF
THE UNITED STATES
S. Hrg. 111-403
NOMINATION OF ERIC H. HOLDER, JR., NOMINEE TO BE ATTORNEY GENERAL OF
THE UNITED STATES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
JANUARY 15 & 16, 2009
__________
Serial No. J-111-2
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
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
Fax: (202) 512�092104 Mail: Stop IDCC, Washington, DC 20402�090001
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin ARLEN SPECTER, Pennsylvania
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York JON KYL, Arizona
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
BENJAMIN L. CARDIN, Maryland LINDSEY O. GRAHAM, South Carolina
SHELDON WHITEHOUSE, Rhode Island JOHN CORNYN, Texas
RON WYDEN, Oregon TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
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
STATEMENTS OF COMMITTEE MEMBERS
Page
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
Pennsylvania:
January 15, 2009 Opening statement........................... 3
January 15, 2009 Prepared statement.......................... 599
January 16, 2009 Opening statement........................... 200
PRESENTERS
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
WITNESSES
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
CONFIRMATION HEARING OF ERIC H. HOLDER JR., NOMINEE TO BE ATTORNEY
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.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
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.
STATEMENT OF HON. ARLEN SPECTER, A UNITED STATES SENATOR FROM
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
inquiry.
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
answered.
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
techniques?
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
nominee.
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
caucus.
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
denied.
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
record.
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
General.
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.
PRESENTATION OF ERIC H. HOLDER, JR., NOMINEE TO BE ATTORNEY
GENERAL OF THE UNITED STATES, BY HON. JOHN WARNER, FORMER
UNITED STATES SENATOR FROM THE STATE OF VIRGINIA
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
consent.
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
statements.
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.
Attorneys.
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
decisions.
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
record.
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.
PRESENTATION OF ERIC H. HOLDER JR., NOMINEE TO BE ATTORNEY
GENERAL OF THE UNITED STATES, BY HON. ELEANOR HOLMES NORTON, A
DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA
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
record.
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.
STATEMENT OF ERIC H. HOLDER JR., NOMINEE TO BE ATTORNEY GENERAL
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
justice.
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
General.
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
people.
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.,
follows.]
[GRAPHIC] [TIFF OMITTED] T6197.001
[GRAPHIC] [TIFF OMITTED] T6197.002
[GRAPHIC] [TIFF OMITTED] T6197.003
[GRAPHIC] [TIFF OMITTED] T6197.004
[GRAPHIC] [TIFF OMITTED] T6197.005
[GRAPHIC] [TIFF OMITTED] T6197.006
[GRAPHIC] [TIFF OMITTED] T6197.007
[GRAPHIC] [TIFF OMITTED] T6197.008
[GRAPHIC] [TIFF OMITTED] T6197.009
[GRAPHIC] [TIFF OMITTED] T6197.010
[GRAPHIC] [TIFF OMITTED] T6197.011
[GRAPHIC] [TIFF OMITTED] T6197.012
[GRAPHIC] [TIFF OMITTED] T6197.013
[GRAPHIC] [TIFF OMITTED] T6197.014
[GRAPHIC] [TIFF OMITTED] T6197.015
[GRAPHIC] [TIFF OMITTED] T6197.016
[GRAPHIC] [TIFF OMITTED] T6197.017
[GRAPHIC] [TIFF OMITTED] T6197.018
[GRAPHIC] [TIFF OMITTED] T6197.019
[GRAPHIC] [TIFF OMITTED] T6197.020
[GRAPHIC] [TIFF OMITTED] T6197.021
[GRAPHIC] [TIFF OMITTED] T6197.022
[GRAPHIC] [TIFF OMITTED] T6197.023
[GRAPHIC] [TIFF OMITTED] T6197.024
[GRAPHIC] [TIFF OMITTED] T6197.025
[GRAPHIC] [TIFF OMITTED] T6197.026
[GRAPHIC] [TIFF OMITTED] T6197.027
[GRAPHIC] [TIFF OMITTED] T6197.028
[GRAPHIC] [TIFF OMITTED] T6197.029
[GRAPHIC] [TIFF OMITTED] T6197.030
[GRAPHIC] [TIFF OMITTED] T6197.031
[GRAPHIC] [TIFF OMITTED] T6197.032
[GRAPHIC] [TIFF OMITTED] T6197.033
[GRAPHIC] [TIFF OMITTED] T6197.034
[GRAPHIC] [TIFF OMITTED] T6197.035
[GRAPHIC] [TIFF OMITTED] T6197.036
[GRAPHIC] [TIFF OMITTED] T6197.037
[GRAPHIC] [TIFF OMITTED] T6197.038
[GRAPHIC] [TIFF OMITTED] T6197.039
[GRAPHIC] [TIFF OMITTED] T6197.040
[GRAPHIC] [TIFF OMITTED] T6197.041
[GRAPHIC] [TIFF OMITTED] T6197.042
[GRAPHIC] [TIFF OMITTED] T6197.043
[GRAPHIC] [TIFF OMITTED] T6197.044
[GRAPHIC] [TIFF OMITTED] T6197.045
[GRAPHIC] [TIFF OMITTED] T6197.046
[GRAPHIC] [TIFF OMITTED] T6197.047
[GRAPHIC] [TIFF OMITTED] T6197.048
[GRAPHIC] [TIFF OMITTED] T6197.049
[GRAPHIC] [TIFF OMITTED] T6197.050
[GRAPHIC] [TIFF OMITTED] T6197.051
[GRAPHIC] [TIFF OMITTED] T6197.052
[GRAPHIC] [TIFF OMITTED] T6197.053
[GRAPHIC] [TIFF OMITTED] T6197.054
[GRAPHIC] [TIFF OMITTED] T6197.055
[GRAPHIC] [TIFF OMITTED] T6197.056
[GRAPHIC] [TIFF OMITTED] T6197.057
[GRAPHIC] [TIFF OMITTED] T6197.058
[GRAPHIC] [TIFF OMITTED] T6197.059
[GRAPHIC] [TIFF OMITTED] T6197.060
[GRAPHIC] [TIFF OMITTED] T6197.061
[GRAPHIC] [TIFF OMITTED] T6197.062
[GRAPHIC] [TIFF OMITTED] T6197.063
[GRAPHIC] [TIFF OMITTED] T6197.064
[GRAPHIC] [TIFF OMITTED] T6197.065
[GRAPHIC] [TIFF OMITTED] T6197.066
[GRAPHIC] [TIFF OMITTED] T6197.067
[GRAPHIC] [TIFF OMITTED] T6197.068
[GRAPHIC] [TIFF OMITTED] T6197.069
[GRAPHIC] [TIFF OMITTED] T6197.070
[GRAPHIC] [TIFF OMITTED] T6197.071
[GRAPHIC] [TIFF OMITTED] T6197.072
[GRAPHIC] [TIFF OMITTED] T6197.073
[GRAPHIC] [TIFF OMITTED] T6197.074
[GRAPHIC] [TIFF OMITTED] T6197.075
[GRAPHIC] [TIFF OMITTED] T6197.076
[GRAPHIC] [TIFF OMITTED] T6197.077
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
circumstances.
Do you agree with me that waterboarding is torture and
illegal?
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
security?
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
this.
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
administration.
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
followed.
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
appear.
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
consistently.
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
that?
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
had?
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
him.
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?
[Laughter.]
Chairman Leahy. My vote depends on your answer.
Mr. Holder. Senator Kohl, he is 10 years younger than me.
[Laughter.]
Mr. Holder. He plays a lot more frequently than I do.
Having said that, I got New York City game.
[Laughter.]
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.
[Laughter.]
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.
[Laughter.]
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.
[Laughter.]
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
discussed.
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
facilities.
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
expanded.
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
experience.
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
Government?
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
adequate.
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
question.
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
way.
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
them.
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
that?
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
course.
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
troubling.
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,
right?
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
program?
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
effective.
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
possible.
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
laws.''
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
later.
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
short----
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
round.
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
history.
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
you.
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
Bush?
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.
[Laughter.]
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.
[Laughter.]
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-
elect?
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
be?
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
me.
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
D.C.
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
that?
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
tradition?
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
Department.
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
General.
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
them.
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----
[Laughter.]
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
Biden.
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.
[Laughter.]
Chairman Leahy. That apparently is not the totally inside
joke that you might have thought it was.
[Laughter.]
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
opinion?
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
determination.
Senator Graham. I'm almost ready to vote for you right now.
[Laughter.]
Mr. Holder. I'll stop.
[Laughter.]
Senator Graham. I agree with you. We're at war. The enemy
that we're at war with, would you agree, is an unconventional
enemy?
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
conflict.
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
anything.
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
responsibly.
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
questions.
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
yours.
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
administration.
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
years.
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
participation.
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.
[Laughter.]
You did--yes, exactly right. That's consistent with our
conversation.
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
correct?
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
reasonable?
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
President?
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
happened.
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.
[Laughter.]
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.
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.
[Laughter.]
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
scenario.
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
about.
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
Act.
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
Department.
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
one.
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
yours.
Senator Coburn. Thank you.
Well, welcome, again. I'm sure we're going to be here
awhile.
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
around.
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
there.
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
there.
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
Heller?
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
that.
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
decision.
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
did.
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.
[Laughter.]
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.
[Laughter.]
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
afterwards.
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
diagnosis.
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
there.
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
decisions?
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
decisions.
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
it?
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
problem.
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
make.
Senator Brownback. I'd say a very legal question on your
part.
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
well.
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
nature.
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
determination.
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
record.
[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
Democrats.
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
existed?
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
that.
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
hearing?
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
me.
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
considerations?
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
consider.
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
registered.
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
that.
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
that.
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
list.
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
administration.
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
active.
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
that.
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
pardon?
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
testimony.
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
hear.
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,
generally.
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
it.
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
Department?
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
Feinstein.
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
conflict?
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
do.
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
on.
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
position?
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
unconstitutional?
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
so?
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
tolerable.
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
implemented.
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
system.
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
front.
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
those?
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
work.
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
associate?
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
it.
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
together.
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
Grassley.
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
contributions.
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
him.
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
place.
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
that.
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
that.
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
witness.
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
record.
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
agree.
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
purpose.
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.
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
guidelines?
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
raised.
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,
correct?
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
Justice?
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,
frankly.
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
thinking.
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
more.
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
that.
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
accessible.''
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
speech.
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
airways.
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
have.
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
arrest.
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
reasonable.
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
wondering.
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
initially.
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
points.
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
minutes.
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
considered.
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
follow.]
CONTINUATION OF CONFIRMATION HEARING OF ERIC H. HOLDER JR., NOMINEE TO
BE ATTORNEY GENERAL OF THE UNITED STATES
----------
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.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
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
you.
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.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
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.
[Laughter.]
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.
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
Unit.
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.
STATEMENT OF HON. LOUIS J. FREEH, FORMER DIRECTOR, FEDERAL
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
prosecutor.
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
leadership.
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.
STATEMENT OF CHUCK CANTERBURY, NATIONAL PRESIDENT, NATIONAL
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
Holder.
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
this.
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
General.
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
schools.
Again, he is no stranger to this Committee, and, Mr.
Payton, thank you very much, sir, for being here.
STATEMENT OF JOHN PAYTON, PRESIDENT AND DIRECTOR-COUNSEL, NAACP
LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
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
Division.
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
Department.
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
example.
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
Justice.
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
watch.
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
system.
I urge the Senate to confirm Eric Holder as the next
Attorney General of the United States. He will make us all
proud.
[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.
STATEMENT OF FRANCES M. FRAGOS TOWNSEND, FORMER HOMELAND
SECURITY ADVISER TO PRESIDENT GEORGE W. BUSH
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
question.
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
disagreed.
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.
STATEMENT OF JOSEPH F. CONNOR, GLEN ROCK, NEW JERSEY
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,
1975.
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
disturbing.
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
merit.
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
terrorists?
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
prisons.
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
questions----
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
long.
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
true.
He took advice of others over his own due diligence, from
what I could see, and that is irresponsible. It borders on
incompetence.
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.
STATEMENT OF RICHARD S. HAHN, R. HAHN & COMPANY, SEAL BEACH,
CALIFORNIA, AND FORMER FBI SPECIAL AGENT
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
communique.
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.
STATEMENT OF STEPHEN P. HALBROOK, ATTORNEY AT LAW, FAIRFAX,
VIRGINIA
Mr. Halbrook. Thank you, Mr. Chairman. Good morning,
Senator Leahy and Senator Specter. It is a real pleasure to be
here.
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
concept.
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
forth.
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
Amendment.
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
speaking.
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
disagreed.
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
correct?
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
function.
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
before.
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.
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
where?
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
briefing.
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
denied.
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
Rico.
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
yesterday.
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
are.
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
follow.]
[GRAPHIC] [TIFF OMITTED] T6197.078
[GRAPHIC] [TIFF OMITTED] T6197.079
[GRAPHIC] [TIFF OMITTED] T6197.080
[GRAPHIC] [TIFF OMITTED] T6197.081
[GRAPHIC] [TIFF OMITTED] T6197.082
[GRAPHIC] [TIFF OMITTED] T6197.083
[GRAPHIC] [TIFF OMITTED] T6197.084
[GRAPHIC] [TIFF OMITTED] T6197.085
[GRAPHIC] [TIFF OMITTED] T6197.086
[GRAPHIC] [TIFF OMITTED] T6197.087
[GRAPHIC] [TIFF OMITTED] T6197.088
[GRAPHIC] [TIFF OMITTED] T6197.089
[GRAPHIC] [TIFF OMITTED] T6197.090
[GRAPHIC] [TIFF OMITTED] T6197.091
[GRAPHIC] [TIFF OMITTED] T6197.092
[GRAPHIC] [TIFF OMITTED] T6197.093
[GRAPHIC] [TIFF OMITTED] T6197.094
[GRAPHIC] [TIFF OMITTED] T6197.095
[GRAPHIC] [TIFF OMITTED] T6197.096
[GRAPHIC] [TIFF OMITTED] T6197.097
[GRAPHIC] [TIFF OMITTED] T6197.098
[GRAPHIC] [TIFF OMITTED] T6197.099
[GRAPHIC] [TIFF OMITTED] T6197.100
[GRAPHIC] [TIFF OMITTED] T6197.101
[GRAPHIC] [TIFF OMITTED] T6197.102
[GRAPHIC] [TIFF OMITTED] T6197.103
[GRAPHIC] [TIFF OMITTED] T6197.104
[GRAPHIC] [TIFF OMITTED] T6197.105
[GRAPHIC] [TIFF OMITTED] T6197.106
[GRAPHIC] [TIFF OMITTED] T6197.107
[GRAPHIC] [TIFF OMITTED] T6197.108
[GRAPHIC] [TIFF OMITTED] T6197.109
[GRAPHIC] [TIFF OMITTED] T6197.110
[GRAPHIC] [TIFF OMITTED] T6197.111
[GRAPHIC] [TIFF OMITTED] T6197.112
[GRAPHIC] [TIFF OMITTED] T6197.113
[GRAPHIC] [TIFF OMITTED] T6197.114
[GRAPHIC] [TIFF OMITTED] T6197.115
[GRAPHIC] [TIFF OMITTED] T6197.116
[GRAPHIC] [TIFF OMITTED] T6197.117
[GRAPHIC] [TIFF OMITTED] T6197.118
[GRAPHIC] [TIFF OMITTED] T6197.119
[GRAPHIC] [TIFF OMITTED] T6197.120
[GRAPHIC] [TIFF OMITTED] T6197.121
[GRAPHIC] [TIFF OMITTED] T6197.122
[GRAPHIC] [TIFF OMITTED] T6197.123
[GRAPHIC] [TIFF OMITTED] T6197.124
[GRAPHIC] [TIFF OMITTED] T6197.125
[GRAPHIC] [TIFF OMITTED] T6197.126
[GRAPHIC] [TIFF OMITTED] T6197.127
[GRAPHIC] [TIFF OMITTED] T6197.128
[GRAPHIC] [TIFF OMITTED] T6197.129
[GRAPHIC] [TIFF OMITTED] T6197.130
[GRAPHIC] [TIFF OMITTED] T6197.131
[GRAPHIC] [TIFF OMITTED] T6197.132
[GRAPHIC] [TIFF OMITTED] T6197.133
[GRAPHIC] [TIFF OMITTED] T6197.134
[GRAPHIC] [TIFF OMITTED] T6197.135
[GRAPHIC] [TIFF OMITTED] T6197.136
[GRAPHIC] [TIFF OMITTED] T6197.137
[GRAPHIC] [TIFF OMITTED] T6197.138
[GRAPHIC] [TIFF OMITTED] T6197.139
[GRAPHIC] [TIFF OMITTED] T6197.140
[GRAPHIC] [TIFF OMITTED] T6197.141
[GRAPHIC] [TIFF OMITTED] T6197.142
[GRAPHIC] [TIFF OMITTED] T6197.143
[GRAPHIC] [TIFF OMITTED] T6197.144
[GRAPHIC] [TIFF OMITTED] T6197.145
[GRAPHIC] [TIFF OMITTED] T6197.146
[GRAPHIC] [TIFF OMITTED] T6197.147
[GRAPHIC] [TIFF OMITTED] T6197.148
[GRAPHIC] [TIFF OMITTED] T6197.149
[GRAPHIC] [TIFF OMITTED] T6197.150
[GRAPHIC] [TIFF OMITTED] T6197.151
[GRAPHIC] [TIFF OMITTED] T6197.152
[GRAPHIC] [TIFF OMITTED] T6197.153
[GRAPHIC] [TIFF OMITTED] T6197.154
[GRAPHIC] [TIFF OMITTED] T6197.155
[GRAPHIC] [TIFF OMITTED] T6197.156
[GRAPHIC] [TIFF OMITTED] T6197.157
[GRAPHIC] [TIFF OMITTED] T6197.158
[GRAPHIC] [TIFF OMITTED] T6197.159
[GRAPHIC] [TIFF OMITTED] T6197.160
[GRAPHIC] [TIFF OMITTED] T6197.161
[GRAPHIC] [TIFF OMITTED] T6197.162
[GRAPHIC] [TIFF OMITTED] T6197.163
[GRAPHIC] [TIFF OMITTED] T6197.164
[GRAPHIC] [TIFF OMITTED] T6197.165
[GRAPHIC] [TIFF OMITTED] T6197.166
[GRAPHIC] [TIFF OMITTED] T6197.167
[GRAPHIC] [TIFF OMITTED] T6197.168
[GRAPHIC] [TIFF OMITTED] T6197.169
[GRAPHIC] [TIFF OMITTED] T6197.170
[GRAPHIC] [TIFF OMITTED] T6197.171
[GRAPHIC] [TIFF OMITTED] T6197.172
[GRAPHIC] [TIFF OMITTED] T6197.173
[GRAPHIC] [TIFF OMITTED] T6197.174
[GRAPHIC] [TIFF OMITTED] T6197.175
[GRAPHIC] [TIFF OMITTED] T6197.176
[GRAPHIC] [TIFF OMITTED] T6197.177
[GRAPHIC] [TIFF OMITTED] T6197.178
[GRAPHIC] [TIFF OMITTED] T6197.179
[GRAPHIC] [TIFF OMITTED] T6197.180
[GRAPHIC] [TIFF OMITTED] T6197.181
[GRAPHIC] [TIFF OMITTED] T6197.182
[GRAPHIC] [TIFF OMITTED] T6197.183
[GRAPHIC] [TIFF OMITTED] T6197.184
[GRAPHIC] [TIFF OMITTED] T6197.185
[GRAPHIC] [TIFF OMITTED] T6197.186
[GRAPHIC] [TIFF OMITTED] T6197.187
[GRAPHIC] [TIFF OMITTED] T6197.188
[GRAPHIC] [TIFF OMITTED] T6197.189
[GRAPHIC] [TIFF OMITTED] T6197.190
[GRAPHIC] [TIFF OMITTED] T6197.191
[GRAPHIC] [TIFF OMITTED] T6197.192
[GRAPHIC] [TIFF OMITTED] T6197.193
[GRAPHIC] [TIFF OMITTED] T6197.194
[GRAPHIC] [TIFF OMITTED] T6197.195
[GRAPHIC] [TIFF OMITTED] T6197.196
[GRAPHIC] [TIFF OMITTED] T6197.197
[GRAPHIC] [TIFF OMITTED] T6197.198
[GRAPHIC] [TIFF OMITTED] T6197.199
[GRAPHIC] [TIFF OMITTED] T6197.200
[GRAPHIC] [TIFF OMITTED] T6197.201
[GRAPHIC] [TIFF OMITTED] T6197.202
[GRAPHIC] [TIFF OMITTED] T6197.203
[GRAPHIC] [TIFF OMITTED] T6197.204
[GRAPHIC] [TIFF OMITTED] T6197.205
[GRAPHIC] [TIFF OMITTED] T6197.206
[GRAPHIC] [TIFF OMITTED] T6197.207
[GRAPHIC] [TIFF OMITTED] T6197.208
[GRAPHIC] [TIFF OMITTED] T6197.209
[GRAPHIC] [TIFF OMITTED] T6197.210
[GRAPHIC] [TIFF OMITTED] T6197.211
[GRAPHIC] [TIFF OMITTED] T6197.212
[GRAPHIC] [TIFF OMITTED] T6197.213
[GRAPHIC] [TIFF OMITTED] T6197.214
[GRAPHIC] [TIFF OMITTED] T6197.215
[GRAPHIC] [TIFF OMITTED] T6197.216
[GRAPHIC] [TIFF OMITTED] T6197.217
[GRAPHIC] [TIFF OMITTED] T6197.218
[GRAPHIC] [TIFF OMITTED] T6197.219
[GRAPHIC] [TIFF OMITTED] T6197.220
[GRAPHIC] [TIFF OMITTED] T6197.221
[GRAPHIC] [TIFF OMITTED] T6197.222
[GRAPHIC] [TIFF OMITTED] T6197.223
[GRAPHIC] [TIFF OMITTED] T6197.224
[GRAPHIC] [TIFF OMITTED] T6197.225
[GRAPHIC] [TIFF OMITTED] T6197.226
[GRAPHIC] [TIFF OMITTED] T6197.227
[GRAPHIC] [TIFF OMITTED] T6197.228
[GRAPHIC] [TIFF OMITTED] T6197.229
[GRAPHIC] [TIFF OMITTED] T6197.230
[GRAPHIC] [TIFF OMITTED] T6197.231
[GRAPHIC] [TIFF OMITTED] T6197.232
[GRAPHIC] [TIFF OMITTED] T6197.233
[GRAPHIC] [TIFF OMITTED] T6197.234
[GRAPHIC] [TIFF OMITTED] T6197.235
[GRAPHIC] [TIFF OMITTED] T6197.236
[GRAPHIC] [TIFF OMITTED] T6197.237
[GRAPHIC] [TIFF OMITTED] T6197.238
[GRAPHIC] [TIFF OMITTED] T6197.239
[GRAPHIC] [TIFF OMITTED] T6197.240
[GRAPHIC] [TIFF OMITTED] T6197.241
[GRAPHIC] [TIFF OMITTED] T6197.242
[GRAPHIC] [TIFF OMITTED] T6197.243
[GRAPHIC] [TIFF OMITTED] T6197.244
[GRAPHIC] [TIFF OMITTED] T6197.245
[GRAPHIC] [TIFF OMITTED] T6197.246
[GRAPHIC] [TIFF OMITTED] T6197.247
[GRAPHIC] [TIFF OMITTED] T6197.248
[GRAPHIC] [TIFF OMITTED] T6197.249
[GRAPHIC] [TIFF OMITTED] T6197.250
[GRAPHIC] [TIFF OMITTED] T6197.251
[GRAPHIC] [TIFF OMITTED] T6197.252
[GRAPHIC] [TIFF OMITTED] T6197.253
[GRAPHIC] [TIFF OMITTED] T6197.254
[GRAPHIC] [TIFF OMITTED] T6197.255
[GRAPHIC] [TIFF OMITTED] T6197.256
[GRAPHIC] [TIFF OMITTED] T6197.257
[GRAPHIC] [TIFF OMITTED] T6197.258
[GRAPHIC] [TIFF OMITTED] T6197.259
[GRAPHIC] [TIFF OMITTED] T6197.260
[GRAPHIC] [TIFF OMITTED] T6197.261
[GRAPHIC] [TIFF OMITTED] T6197.262
[GRAPHIC] [TIFF OMITTED] T6197.263
[GRAPHIC] [TIFF OMITTED] T6197.264
[GRAPHIC] [TIFF OMITTED] T6197.265
[GRAPHIC] [TIFF OMITTED] T6197.266
[GRAPHIC] [TIFF OMITTED] T6197.267
[GRAPHIC] [TIFF OMITTED] T6197.268
[GRAPHIC] [TIFF OMITTED] T6197.269
[GRAPHIC] [TIFF OMITTED] T6197.270
[GRAPHIC] [TIFF OMITTED] T6197.271
[GRAPHIC] [TIFF OMITTED] T6197.272
[GRAPHIC] [TIFF OMITTED] T6197.273
[GRAPHIC] [TIFF OMITTED] T6197.274
[GRAPHIC] [TIFF OMITTED] T6197.275
[GRAPHIC] [TIFF OMITTED] T6197.276
[GRAPHIC] [TIFF OMITTED] T6197.277
[GRAPHIC] [TIFF OMITTED] T6197.278
[GRAPHIC] [TIFF OMITTED] T6197.279
[GRAPHIC] [TIFF OMITTED] T6197.280
[GRAPHIC] [TIFF OMITTED] T6197.281
[GRAPHIC] [TIFF OMITTED] T6197.282
[GRAPHIC] [TIFF OMITTED] T6197.283
[GRAPHIC] [TIFF OMITTED] T6197.284
[GRAPHIC] [TIFF OMITTED] T6197.285
[GRAPHIC] [TIFF OMITTED] T6197.286
[GRAPHIC] [TIFF OMITTED] T6197.287
[GRAPHIC] [TIFF OMITTED] T6197.288
[GRAPHIC] [TIFF OMITTED] T6197.289
[GRAPHIC] [TIFF OMITTED] T6197.290
[GRAPHIC] [TIFF OMITTED] T6197.291
[GRAPHIC] [TIFF OMITTED] T6197.292
[GRAPHIC] [TIFF OMITTED] T6197.293
[GRAPHIC] [TIFF OMITTED] T6197.294
[GRAPHIC] [TIFF OMITTED] T6197.295
[GRAPHIC] [TIFF OMITTED] T6197.296
[GRAPHIC] [TIFF OMITTED] T6197.297
[GRAPHIC] [TIFF OMITTED] T6197.298
[GRAPHIC] [TIFF OMITTED] T6197.299
[GRAPHIC] [TIFF OMITTED] T6197.300
[GRAPHIC] [TIFF OMITTED] T6197.301
[GRAPHIC] [TIFF OMITTED] T6197.302
[GRAPHIC] [TIFF OMITTED] T6197.303
[GRAPHIC] [TIFF OMITTED] T6197.304
[GRAPHIC] [TIFF OMITTED] T6197.305
[GRAPHIC] [TIFF OMITTED] T6197.306
[GRAPHIC] [TIFF OMITTED] T6197.307
[GRAPHIC] [TIFF OMITTED] T6197.308
[GRAPHIC] [TIFF OMITTED] T6197.309
[GRAPHIC] [TIFF OMITTED] T6197.310
[GRAPHIC] [TIFF OMITTED] T6197.311
[GRAPHIC] [TIFF OMITTED] T6197.312
[GRAPHIC] [TIFF OMITTED] T6197.313
[GRAPHIC] [TIFF OMITTED] T6197.314
[GRAPHIC] [TIFF OMITTED] T6197.315
[GRAPHIC] [TIFF OMITTED] T6197.316
[GRAPHIC] [TIFF OMITTED] T6197.317
[GRAPHIC] [TIFF OMITTED] T6197.318
[GRAPHIC] [TIFF OMITTED] T6197.319
[GRAPHIC] [TIFF OMITTED] T6197.320
[GRAPHIC] [TIFF OMITTED] T6197.321
[GRAPHIC] [TIFF OMITTED] T6197.322
[GRAPHIC] [TIFF OMITTED] T6197.323
[GRAPHIC] [TIFF OMITTED] T6197.324
[GRAPHIC] [TIFF OMITTED] T6197.325
[GRAPHIC] [TIFF OMITTED] T6197.326
[GRAPHIC] [TIFF OMITTED] T6197.327
[GRAPHIC] [TIFF OMITTED] T6197.328
[GRAPHIC] [TIFF OMITTED] T6197.329
[GRAPHIC] [TIFF OMITTED] T6197.330
[GRAPHIC] [TIFF OMITTED] T6197.331
[GRAPHIC] [TIFF OMITTED] T6197.332
[GRAPHIC] [TIFF OMITTED] T6197.333
[GRAPHIC] [TIFF OMITTED] T6197.334
[GRAPHIC] [TIFF OMITTED] T6197.335
[GRAPHIC] [TIFF OMITTED] T6197.336
[GRAPHIC] [TIFF OMITTED] T6197.337
[GRAPHIC] [TIFF OMITTED] T6197.338
[GRAPHIC] [TIFF OMITTED] T6197.339
[GRAPHIC] [TIFF OMITTED] T6197.340
[GRAPHIC] [TIFF OMITTED] T6197.341
[GRAPHIC] [TIFF OMITTED] T6197.342
[GRAPHIC] [TIFF OMITTED] T6197.343
[GRAPHIC] [TIFF OMITTED] T6197.344
[GRAPHIC] [TIFF OMITTED] T6197.345
[GRAPHIC] [TIFF OMITTED] T6197.346
[GRAPHIC] [TIFF OMITTED] T6197.347
[GRAPHIC] [TIFF OMITTED] T6197.348
[GRAPHIC] [TIFF OMITTED] T6197.349
[GRAPHIC] [TIFF OMITTED] T6197.350
[GRAPHIC] [TIFF OMITTED] T6197.351
[GRAPHIC] [TIFF OMITTED] T6197.352
[GRAPHIC] [TIFF OMITTED] T6197.353
[GRAPHIC] [TIFF OMITTED] T6197.354
[GRAPHIC] [TIFF OMITTED] T6197.355
[GRAPHIC] [TIFF OMITTED] T6197.356
[GRAPHIC] [TIFF OMITTED] T6197.357
[GRAPHIC] [TIFF OMITTED] T6197.358
[GRAPHIC] [TIFF OMITTED] T6197.359
[GRAPHIC] [TIFF OMITTED] T6197.360
[GRAPHIC] [TIFF OMITTED] T6197.361
[GRAPHIC] [TIFF OMITTED] T6197.362
[GRAPHIC] [TIFF OMITTED] T6197.363
[GRAPHIC] [TIFF OMITTED] T6197.364
[GRAPHIC] [TIFF OMITTED] T6197.365
[GRAPHIC] [TIFF OMITTED] T6197.366
[GRAPHIC] [TIFF OMITTED] T6197.367
[GRAPHIC] [TIFF OMITTED] T6197.368
[GRAPHIC] [TIFF OMITTED] T6197.369
[GRAPHIC] [TIFF OMITTED] T6197.370
[GRAPHIC] [TIFF OMITTED] T6197.371
[GRAPHIC] [TIFF OMITTED] T6197.372
[GRAPHIC] [TIFF OMITTED] T6197.373
[GRAPHIC] [TIFF OMITTED] T6197.374
[GRAPHIC] [TIFF OMITTED] T6197.375
[GRAPHIC] [TIFF OMITTED] T6197.376
[GRAPHIC] [TIFF OMITTED] T6197.377
[GRAPHIC] [TIFF OMITTED] T6197.378
[GRAPHIC] [TIFF OMITTED] T6197.379
[GRAPHIC] [TIFF OMITTED] T6197.380
[GRAPHIC] [TIFF OMITTED] T6197.381
[GRAPHIC] [TIFF OMITTED] T6197.382
[GRAPHIC] [TIFF OMITTED] T6197.383
[GRAPHIC] [TIFF OMITTED] T6197.384
[GRAPHIC] [TIFF OMITTED] T6197.385
[GRAPHIC] [TIFF OMITTED] T6197.386
[GRAPHIC] [TIFF OMITTED] T6197.387
[GRAPHIC] [TIFF OMITTED] T6197.388
[GRAPHIC] [TIFF OMITTED] T6197.389
[GRAPHIC] [TIFF OMITTED] T6197.390
[GRAPHIC] [TIFF OMITTED] T6197.391
[GRAPHIC] [TIFF OMITTED] T6197.392
[GRAPHIC] [TIFF OMITTED] T6197.393
[GRAPHIC] [TIFF OMITTED] T6197.394
[GRAPHIC] [TIFF OMITTED] T6197.395
[GRAPHIC] [TIFF OMITTED] T6197.396
[GRAPHIC] [TIFF OMITTED] T6197.397
[GRAPHIC] [TIFF OMITTED] T6197.398
[GRAPHIC] [TIFF OMITTED] T6197.399
[GRAPHIC] [TIFF OMITTED] T6197.400
[GRAPHIC] [TIFF OMITTED] T6197.401
[GRAPHIC] [TIFF OMITTED] T6197.402
[GRAPHIC] [TIFF OMITTED] T6197.403
[GRAPHIC] [TIFF OMITTED] T6197.404
[GRAPHIC] [TIFF OMITTED] T6197.405
[GRAPHIC] [TIFF OMITTED] T6197.406
[GRAPHIC] [TIFF OMITTED] T6197.407
[GRAPHIC] [TIFF OMITTED] T6197.408
[GRAPHIC] [TIFF OMITTED] T6197.409
[GRAPHIC] [TIFF OMITTED] T6197.410
[GRAPHIC] [TIFF OMITTED] T6197.411
[GRAPHIC] [TIFF OMITTED] T6197.412
[GRAPHIC] [TIFF OMITTED] T6197.413
[GRAPHIC] [TIFF OMITTED] T6197.414
[GRAPHIC] [TIFF OMITTED] T6197.415
[GRAPHIC] [TIFF OMITTED] T6197.416
[GRAPHIC] [TIFF OMITTED] T6197.417
[GRAPHIC] [TIFF OMITTED] T6197.418
[GRAPHIC] [TIFF OMITTED] T6197.419
[GRAPHIC] [TIFF OMITTED] T6197.420
[GRAPHIC] [TIFF OMITTED] T6197.421
[GRAPHIC] [TIFF OMITTED] T6197.422
[GRAPHIC] [TIFF OMITTED] T6197.423
[GRAPHIC] [TIFF OMITTED] T6197.424
[GRAPHIC] [TIFF OMITTED] T6197.425
[GRAPHIC] [TIFF OMITTED] T6197.426
[GRAPHIC] [TIFF OMITTED] T6197.427
[GRAPHIC] [TIFF OMITTED] T6197.428
[GRAPHIC] [TIFF OMITTED] T6197.429
[GRAPHIC] [TIFF OMITTED] T6197.430
[GRAPHIC] [TIFF OMITTED] T6197.431
[GRAPHIC] [TIFF OMITTED] T6197.432
[GRAPHIC] [TIFF OMITTED] T6197.433
[GRAPHIC] [TIFF OMITTED] T6197.434
[GRAPHIC] [TIFF OMITTED] T6197.435
[GRAPHIC] [TIFF OMITTED] T6197.436
[GRAPHIC] [TIFF OMITTED] T6197.437
[GRAPHIC] [TIFF OMITTED] T6197.438
[GRAPHIC] [TIFF OMITTED] T6197.439
[GRAPHIC] [TIFF OMITTED] T6197.440
[GRAPHIC] [TIFF OMITTED] T6197.441
[GRAPHIC] [TIFF OMITTED] T6197.442
[GRAPHIC] [TIFF OMITTED] T6197.443
[GRAPHIC] [TIFF OMITTED] T6197.444
[GRAPHIC] [TIFF OMITTED] T6197.445
[GRAPHIC] [TIFF OMITTED] T6197.446
[GRAPHIC] [TIFF OMITTED] T6197.447
[GRAPHIC] [TIFF OMITTED] T6197.448
[GRAPHIC] [TIFF OMITTED] T6197.449
[GRAPHIC] [TIFF OMITTED] T6197.450
[GRAPHIC] [TIFF OMITTED] T6197.451
[GRAPHIC] [TIFF OMITTED] T6197.452
[GRAPHIC] [TIFF OMITTED] T6197.453
[GRAPHIC] [TIFF OMITTED] T6197.454
[GRAPHIC] [TIFF OMITTED] T6197.455
[GRAPHIC] [TIFF OMITTED] T6197.456
[GRAPHIC] [TIFF OMITTED] T6197.457
[GRAPHIC] [TIFF OMITTED] T6197.458
[GRAPHIC] [TIFF OMITTED] T6197.459
[GRAPHIC] [TIFF OMITTED] T6197.460
[GRAPHIC] [TIFF OMITTED] T6197.461
[GRAPHIC] [TIFF OMITTED] T6197.462
[GRAPHIC] [TIFF OMITTED] T6197.463
[GRAPHIC] [TIFF OMITTED] T6197.464
[GRAPHIC] [TIFF OMITTED] T6197.465
[GRAPHIC] [TIFF OMITTED] T6197.466
[GRAPHIC] [TIFF OMITTED] T6197.467
[GRAPHIC] [TIFF OMITTED] T6197.468
[GRAPHIC] [TIFF OMITTED] T6197.469
[GRAPHIC] [TIFF OMITTED] T6197.470
[GRAPHIC] [TIFF OMITTED] T6197.471
[GRAPHIC] [TIFF OMITTED] T6197.472
[GRAPHIC] [TIFF OMITTED] T6197.473
[GRAPHIC] [TIFF OMITTED] T6197.474
[GRAPHIC] [TIFF OMITTED] T6197.475
[GRAPHIC] [TIFF OMITTED] T6197.476
[GRAPHIC] [TIFF OMITTED] T6197.477
[GRAPHIC] [TIFF OMITTED] T6197.478
[GRAPHIC] [TIFF OMITTED] T6197.479