    [Senate Hearing 111-807]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 111-807

                  OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE

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

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                         ONE HUNDRED ELEVENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 APRIL 14, 2010

                                   __________

                              Serial No. J-111-84

                                   __________

             Printed for the use of the Committee on the Judiciary

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                           COMMITTEE ON THE JUDICIARY

                      PATRICK J. LEAHY, Vermont, Chairman
    HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
    DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
    RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
    ARLEN SPECTER, Pennsylvania          JON KYL, Arizona
    CHARLES E. SCHUMER, New York         LINDSEY GRAHAM, South Carolina
    RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
    BENJAMIN L. CARDIN, Maryland         TOM COBURN, Oklahoma
    SHELDON WHITEHOUSE, Rhode Island
    AMY KLOBUCHAR, Minnesota
    EDWARD E. KAUFMAN, Delaware
    AL FRANKEN, Minnesota
                Bruce A. Cohen, Chief Counsel and Staff Director
                      Matt Miner, Republican Chief Counsel

                                C O N T E N T S

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Feingold, Hon. Russell D., a U.S. Senator from the State of
      Wisconsin, prepared statement..................................   216
    Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin......     1
        prepared statement...........................................   219
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
      prepared statement.............................................   221
    Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     2

                                   WITNESSES

    Holder, Eric H., Jr., Attorney General, U.S. Department of
      Justice, Washington, DC........................................     4

                             QUESTIONS AND ANSWERS

    Responses of Eric H. Holder, Jr., to questions submitted by
      Senators Leahy, Feinstein, Feingold, Schumer, Cardin,
      Whitehouse, Sessions, Hatch, Grassley, Kyl, Graham and Coburn..    55

                           SUBMISSIONS FOR THE RECORD

    Holder, Eric H., Jr., Attorney General, U.S. Department of
      Justice, Washington, DC, statement.............................   224

                  OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE

                                  ----------

                           WEDNESDAY, APRIL 14, 2010

                                           U.S. Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 9:34 a.m., in
    room SD-226, Dirksen Senate Office Building, Hon. Herb Kohl,
    presiding.
        Present: Senators Kohl, Feinstein, Feingold, Schumer,
    Durbin, Cardin, Whitehouse, Klobuchar, Kaufman, Specter,
    Franken, Sessions, Hatch, Grassley, Kyl, Graham, and Cornyn.

     OPENING STATEMENT OF HON. HERB KOHL, A U.S. SENATOR FROM THE
                           STATE OF WISCONSIN

        Senator Kohl. Good morning. Before we begin today's
    hearing, we will pause for a moment of silence in solidarity
    with the people of Poland as they mourn the loss of their
    President, Lech Kaczynski, as well as so many others in
    Saturday's tragic plane crash.
        [Pause.]
        Senator Kohl. Thank you.
        We welcome you all to today's oversight hearing.
    Regrettably, Chairman Leahy is not able to attend because he is
    at the funeral of a good friend back home in Vermont. We will
    proceed without him and, without objection, Senator Leahy's
    statement will be placed in the record.
        [The prepared statement of Chairman Leahy appears as a
    submission for the record.]
        Senator Kohl. Attorney General Holder, it has been well
    over a year since you were confirmed, and this will be your
    third oversight hearing before this Committee. We welcome you
    and thank you for making yourself accessible so that we can
    engage in one of our most important responsibilities: oversight
    of the Justice Department. It is a duty that we take seriously,
    regardless of the party in the White House. Oversight should
    not be conducted for the sake of political gain, but it should
    be a meaningful discussion about the challenges facing the
    Justice Department and should provide a check on its actions
    and the use of taxpayer dollars.
        Over the past year, the Justice Department has done many
    good things that should be applauded. The Department has
    renewed its commitment to local law enforcement, which has put
    more officers on the beat and made our neighborhoods safer,
    helping local communities attract business and economic
    development. It has stepped up enforcement on the southwest
    border to turn the tide on the Mexican drug cartels that
    continue to funnel drugs and crime to cities throughout our
    country.
        The Criminal Division has increased efforts to root out
    fraud operations that cost the Federal Government and Americans
    billions of dollars--from financial and mortgage fraud to
    health care and Medicare fraud. And as our economy rebounds,
    the Antitrust Division's revitalized enforcement has fostered a
    competitive marketplace that encourages innovation and economic
    development while ensuring consumers have access to high-
    quality goods at the best prices.
        The Justice Department's tireless fight against terrorism
    has yielded numerous interrupted plots and arrests, valuable
    intelligence information, and successful prosecutions. We were
    reminded of our constant struggle against those who wish to do
    us harm on Christmas Day when brave passengers stopped a would-
    be terrorist from taking down a full airplane with a homemade
    bomb, and when the FBI intercepted a sophisticated plan to
    attack the New York subway system.
        Yet there have been legitimate concerns raised--by
    Democrats and Republicans alike--about this administration's
    approach to terrorist investigations, detention, and
    prosecution. Among the many issues you will need to address
    today include the long-overdue need to close the prison at
    Guantanamo Bay, where to hold trials for the five 9/11
    plotters, and the process we use to detain and interrogate
    foreign terrorists, such as the Christmas Day bomber, who are
    captured in the United States. Reasonable minds can differ on
    these issues, but we can all agree that the decisions you make
    will have a long-lasting and far-reaching impact on our fight
    against terrorism and our ability to keep Americans safe.
        The Justice Department is charged with important duties in
    many areas of the law. We thank you and the thousands of
    employees who dedicate themselves each and every day to the
    independent and impartial enforcement of the law. We look
    forward to a productive hearing, and we turn now to the
    distinguished Ranking Member, Senator Jeff Sessions, for his
    opening statement.

    STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
                               OF ALABAMA

        Senator Sessions. Thank you, Chairman Kohl. It is good to
    be with you, and I am sorry that Chairman Leahy could not be
    with us today.
        Attorney General Holder, thank you for being here. It is an
    important oversight hearing, and it comes at an important time,
    and we have a number of issues to discuss with you.
        After 9/11, our Nation fundamentally re-evaluated its
    approach to terrorism. We recognized that we are at war and
    that our normal criminal justice procedures were not designed
    for and not appropriate for the new threat. We then began to
    establish a military commission framework consistent with
    history for the detention, interrogation, and trial of captured
    al Qaeda terrorists. We passed bipartisan legislation to put
    this system in place, and we built a multi-million-dollar
    courthouse at Guantanamo Bay. Much effort, including the work
    of the 9/11 Commission, led to this decision. But the President
    and you as Attorney General have worked to undo these policies
    and gains. It has imperiled, I think, a lot of hard work and
    progress over the years.
        As you know, I supported your nomination, but your actions
    have shaken my confidence in your leadership at the Department
    of Justice. Immediately after taking office, President Obama's
    Executive order stopped these military commissions. Then on
    July 20th, less than 6 months after you took office, the
    Detention Policy Task Force, which you co-chaired, reached a
    stunning conclusion: Captured enemy combatants, including the
    9/11 terrorists and others held at Guantanamo Bay, would not be
    tried by military commissions but would be given the
    presumption of civilian criminal trials. Since that time, not
    one military tribunal has been held. They have been stopped.
        On November 13th, you announced that even Khalid Sheikh
    Mohammed, the alleged mastermind of 9/11, and the other 9/11
    plotters would be taken from Gitmo and brought to New York City
    for trial. Five days later, you declared before this Committee
    that this was in the best interest of the American people in
    terms of safety. You cited as support for your views the New
    York mayor, yet since that time the mayor and the Governor have
    both opposed this decision. You asserted that, ``We know that
    we can prosecute terrorists in our Federal courts safely and
    securely because there are more than 300 convicted
    international and domestic terrorists currently in the Bureau
    of Prisons.'' But that was surely an exaggeration. When on
    March 22nd you finally provided a list of those individuals,
    after much prodding, it was, I think, an inflated list of many
    hundreds of lesser offenses. Many of those cases were only
    prosecuted before the military commissions became operable.
        In your November testimony, you claimed that civilian
    courts were just as effective at protecting classified material
    as military courts. Yet in those same March 22nd responses,
    your Department of Justice contradicted your statements and
    conceded that military commissions do provide better
    safeguards. In fact, the responses list seven ways military
    court procedures are superior. On December 25th, Farouk
    Abdulmutallab, the Christmas Day bomber, was captured, but he
    was questioned less than an hour before he was given Miranda
    warnings and offered a free lawyer. Sometime later, you decided
    this foreign terrorist operative carrying an al Qaeda bomb
    would be detained and prosecuted in the civilian system. After
    the warnings, Abdulmutallab clammed up and did not resume
    cooperation for weeks.
        On January 20th, the heads of America's intelligence
    agencies testified they were not consulted on this decision,
    yet on February 3rd, you wrote a letter to Congress stating
    that Abdulmutallab was Mirandized ``with the knowledge of and
    with no objection from all other relevant departments of
    Government.''
        In that same letter, you wrote, ``I am confident that the
    decision to address Mr. Abdulmutallab's actions through our
    criminal justice system has not and will not compromise our
    ability to obtain information needed to detect and prevent
    future attacks.''
        There can be no doubt that treating terrorists as regular
    criminals will reduce our ability to obtain intelligence. And 6
    years ago, you acknowledged that fact. In a Supreme Court
    brief, a brief you failed to disclose as required during your
    confirmation process, you candidly admitted that the civilian
    criminal system possesses inherent limitations that ``might
    impede the investigation of a terrorist offense under some
    circumstances,'' including our ability ``to detain a dangerous
    terrorist or to interrogate him or her effectively.''
        Most recently, on March 6th, you curiously suggested Osama
    bin Laden should receive the same legal treatment as Charles
    Manson.
        In light of the risks you described as inherent in the
    criminal justice system, do you really believe that if we
    capture bin Laden or any al Qaeda leaders, the first question
    we should ask is: ``Do you want a lawyer? '' Civilian trials
    for terrorist combatants are not required by law, policy,
    history, treaty, or plain justice. Yet this policy, it appears,
    still remains in effect, or at least unsettled.
        There are, however, some important areas on which we do.
    The Department of Justice rightly has asserted state secrets
    privileges in appropriate cases. You have testified to the
    legality of military commissions, and I appreciate that even
    though they have not been used under your tenure. And you have
    supported the crack cocaine sentencing bill that we unanimously
    passed in this Committee, and I appreciate working with you on
    that.
        But the course you have chosen on national security is
    steering us into a head-on collision with reality. The American
    people are not interested in terrorists being brought from
    Guantanamo to their own communities. Reality is a stubborn
    thing. Pretending that terrorists can safely be treated as
    common criminals will not make it so.
        So I hope you are willing to reconsider those choices. I
    hope that the answers you provide today will help restore my
    confidence in the leadership at the Department, and I look
    forward to working with you toward that end.
        Thank you, Mr. Chairman.
        Senator Kohl. Thank you, Senator Sessions.
        Mr. Attorney General, we will take your testimony.

     STATEMENT OF HON. ERIC H. HOLDER, JR., ATTORNEY GENERAL, U.S.
                 DEPARTMENT OF JUSTICE, WASHINGTON, DC

        Attorney General Holder. Well, good morning, Mr. Chairman,
    Senator Sessions, and distinguished members of this Committee.
    I am pleased to be here today to discuss the important work of
    the United States Department of Justice.
        One of the things that I pledged during my confirmation
    hearing was that I would be here regularly, and last year I had
    the privilege of appearing before this Committee three times,
    not including my confirmation hearing. And over the past 14
    months since I became Attorney General, I have had the pleasure
    of working closely with many of you. I want to thank you all
    for your partnership and your ongoing support for the thousands
    of men and women who serve the Department and who tirelessly
    work to protect our country, enforce our laws, defend our
    interests in court, and ensure the integrity of our justice
    system.
        Now, today I have been asked to report on the Justice
    Department's progress, its priorities, and its goals. I am
    proud to tell you what we have accomplished and also what we
    plan to achieve.
        Even before I took the oath of office last February, I made
    a pledge to every member of this Committee. I promised that
    under my leadership the Justice Department would vigorously
    pursue several critical objectives: combating terrorism,
    fighting crime, enforcing our laws in a nonpartisan manner, and
    reinvigorating the Department's commitment to integrity, to
    transparency, and to results.
        I also promised that in our most important work, the work
    of protecting the American people, the Justice Department would
    lead with strength and by example, and that we would use every
    tool available to keep the American people safe.
        Now, I never expected that fulfilling these promises would
    be easy. After all, ours is a time of growing demands and
    limited resources. And as we have confronted unprecedented
    threats, new responsibilities, and tough choices, the Justice
    Department, I believe, has made historic progress.
        Over the last year, in addition to working tirelessly to
    protect our Nation from terrorism and from other threats, we
    have reinvigorated the other traditional missions of the
    Department. We have strengthened efforts to protect our
    environment as well as our most vulnerable communities. We have
    reinforced our mission to safeguard civil rights in our
    workplaces, our housing markets, our voting booths, and our
    border areas. We have made strides in ensuring that our prisons
    are secure and aimed at rehabilitation, which is not merely
    humane policy, it is smart policy, because reducing recidivism
    makes all of us safer. And as part of our focus on securing our
    economy and combating mortgage fraud and financial fraud, the
    Department has launched and is now leading the Financial Fraud
    Enforcement Task Force that President Obama called for last
    year, using legal tools that have been provided by this
    Committee.
        At the same time, the Justice Department is working to make
    our criminal laws fairer. Last year, we launched one of the
    most comprehensive reviews in the history of the Federal
    sentencing policy. Our guiding objective--ensuring that
    sentencing practices are smart, that they are tough, that they
    are predictable, and that they are fair--is one that I know
    that every member of this Committee shares. I want to thank
    this Committee and the full Senate for the critical step that
    it took last month in unanimously approving a dramatic
    reduction in the disparity between crack and powder cocaine
    sentences. It was enormously heartening to me personally--and I
    mean this in a personal sense--to see the Committee come
    together in a bipartisan fashion to address this longstanding
    injustice. The 100:1 disparity undermined trust in the criminal
    justice system and diverted resources away from the prosecution
    of large-scale drug organizations. These reforms will serve the
    goals of law enforcement while ensuring fairness in sentencing.
        Looking ahead, I hope the Judiciary Committee will help the
    Department achieve its goals and meet its responsibilities by
    confirming the President's law enforcement nominees more
    expeditiously. There are currently 19 United States Attorney
    nominees and 17 United States Marshal nominees awaiting
    Committee action. A backlog of this magnitude is unusual. I
    have spoken to the Chairman and the Ranking Member about this
    concern, and I am hopeful that it will be addressed without
    further delay.
        Every day the dedicated professionals of the Department of
    Justice help to fight our ongoing war against an enemy that
    continues to attack us at home and abroad. Over the past year,
    I am proud to say that the Department, working closely with our
    partners in the intelligence and national security communities,
    was extraordinarily successful in disrupting plots, obtaining
    intelligence, and incapacitating terrorists. We detected and
    disrupted a plot to attack the subways in Manhattan with
    explosive bombs that could have killed many Americans in what
    would have been one of the most, if not the most deadly attacks
    since September 11, 2001. Najibullah Zazi has already pleaded
    guilty to terrorism charges in this case, and we have also
    charged several of his associates with participating in the
    plot and related crimes.
        We secured a guilty plea from David Headley for assisting
    the deadly attacks in Mumbai in November 2008 and plotting
    another attack in Denmark. As part of his plea, he has already
    provided valuable intelligence to the Government about
    terrorist activities abroad.
        We have obtained the cooperation of Umar Farouk
    Abdulmutallab, who tried to bomb an airliner landing in Detroit
    last Christmas. Now, although I cannot, obviously, discuss the
    intelligence that he has provided, I can tell you that it has
    not just been valuable; it has been actionable.
        We convicted Aafia Siddiqui of attempting to murder United
    States military and law enforcement agents in Afghanistan.
    Siddiqui is a Pakistani physicist captured in Afghanistan with
    explosives and information about nuclear, chemical, and
    biological weapons and descriptions of United States landmarks.
    She later opened fire on United States personnel. The Justice
    Department under the Bush administration indicted her in
    Federal court in 2008, and she was convicted several weeks ago
    in New York.
        Now, most of this work was done by career professionals
    driven by no ideology except a loyalty to our Nation and a
    commitment to keeping our people safe. They work hard and, most
    importantly, they get results. Since September 11, 2001,
    Congress has provided the Justice Department broad authorities
    and significant resources to fight terrorism. I believe the
    Department has used these resources effectively, obtaining 160
    convictions for terrorism offenses and 240 convictions for
    terrorism-related crimes.
        Now, at a time when questions have been raised about the
    role of our courts, it is important to note that most of these
    convictions came during the last administration, which made the
    criminal justice system an integral component of its
    counterterrorism strategy. The Bush administration used the
    criminal justice system to interrogate, to prosecute, and to
    incarcerate terrorists for the same reason that the Obama
    administration has: It is an extremely effective tool to ensure
    justice and to protect the security of the American people.
        Now, let me be clear. This administration will use every
    tool available to it to fight terrorism. Every tool. This
    includes both civilian courts and military commissions. Indeed,
    we have already referred six cases for prosecutor in
    commissions. We will no doubt refer other cases as well.
        We have deployed the full extent of our intelligence,
    military, and law enforcement resources to defeat terrorists,
    and we have achieved, I believe, significant results. It would
    jeopardize those results to prohibit the use of the criminal
    justice system to prosecute terrorists, as some in Congress
    have proposed, and it would seriously weaken our National
    security. Instead of pursuing a narrow approach to fighting
    terrorism, we have to be flexible, we have to be pragmatic, and
    we have to be aggressive. And in every circumstance, we must
    choose the weapon that will be most effective.
        That said, I know you all have questions about the
    prosecution of those charged with plotting the 9/11 attacks. No
    final decision has been made about the forum in which Khalid
    Sheikh Mohammed and his co-defendants will be tried. As I said
    from the outset, this is a very close call. It should be clear
    to everyone by now that there are many legal, national
    security, and practical factors that have to be considered
    here. As a consequence, there are many perspectives on what the
    most appropriate and effective forum is.
        In making this decision, I can assure you that this
    administration has only one paramount goal: to ensure that
    justice is done in this case. In the pursuit of justice, we
    will enforce the law, and we will protect the American people.
        Today I want you all to know that I continue to value and
    will work to uphold the trust that this Committee has placed in
    me. I also want to reassert my pledge that so long as I have
    the privilege of serving as Attorney General, the Department of
    Justice will be an instrument of our Constitution and a servant
    of the American people, not of any party and not of any
    political ideology.
        We will continue working to protect our Nation's security,
    to advance the best interests of the American people, and to
    strengthen the values that have made our country a model to the
    world.
        I thank you again for this opportunity to discuss the
    Justice Department's essential work, and I am happy to answer
    any questions that you might have. Thank you.
        [The prepared statement of Attorney General Holder appears
    as a submission for the record.]
        Senator Kohl. Thank you, Mr. Holder. We will now embark on
    questions in rounds of 7 minutes.
        The Guantanamo Review Task Force recently completed its
    review of the 240 detainees to determine whether each would be
    prosecuted, transferred to another country, or held
    indefinitely. I am pleased to hear that you thoroughly reviewed
    each case. However, in your testimony today, you did not
    mention if and when you plan to close Guantanamo Bay.
        Are you still determined to close that prison? If so, can
    you give us an update on your timeline for doing so? And what
    do you intend to do with the detainees who are too dangerous to
    release but for whom you lack sufficient evidence to prosecute?
        Attorney General Holder. It is still the intention of this
    administration to close the facility at Guantanamo. There was,
    and I think still is--maybe not to the degree that it once
    existed--bipartisan support for the notion that the Guantanamo
    facility should be closed. It serves as a recruiting tool for
    those who have sworn to harm this Nation. Both of the men who
    ran for President last year supported the closing of
    Guantanamo, as did President Obama's predecessor.
        We will close Guantanamo as quickly as we can, as soon as
    we can. The work has been done with regard to the disposition
    of the 240 people who were there when we took over the
    facility. I can share those numbers with you about where these
    people should go. One of the things that we have in our budget
    for next year is funds in order to come up with another
    facility to which these people might be transferred, those who
    cannot be repatriated, and we would like to move on that plan,
    but we need Congressional support.
        Senator Kohl. You say you have no timeline. Does that mean
    it might be this year, next year, the following year, the year
    after that?
        Attorney General Holder. Well, one of the things that we
    need is an alternative site, and we have identified a place in
    Illinois, the Thomson family, and we have, as I said, in our
    budget a request for funds in order to open Thomson and to
    place in Thomson those who would be tried, either in military
    commissions or in civilian courts, those who would be held
    under the law of war, of detention, and those who might be
    temporarily housed there until they can be repatriated to some
    other country.
        Senator Kohl. Are you saying you cannot close Guantanamo
    Bay until you have this other site under your control?
        Attorney General Holder. Yes, we have to have an option,
    and that will require Congressional support for the funding
    request that we have made.
        Senator Kohl. Mr. Attorney General, at a House
    appropriations hearing last month, you said that Osama bin
    Laden will ``never appear in an American courtroom.'' You
    further stated that, ``The reality is we will be reading
    Miranda rights to a corpse.'' In contrast, General McChrystal
    said that the military's goal is to capture him alive and bring
    him to justice, and CIA Director Leon Panetta said that should
    bin Laden be caught, he would be taken to a military base and
    interrogated by U.S. agents.
        Mr. Holder, would you like to explain that comment and
    clarify what the administration has planned if and when, as we
    all hope, bin Laden is captured?
        Attorney General Holder. With regard to Osama bin Laden,
    who is our target one for the United States, our plan is to
    capture him or to kill him. Our hope would be to capture him
    and to interrogate him, to get useful intelligence from him
    about the structure of al Qaeda, about al Qaeda's plans.
        What I said in that hearing was an assessment of, I think,
    the likelihood that we are going to be able to capture him
    alive. What I said was that with regard to that possibility,
    both in our attempt to capture him and from what we know about
    instructions that he has given to the people who surround him,
    his security forces, I think it is highly unlikely that he will
    be taken alive. But our goal is to either capture Osama bin
    Laden or to kill him.
        Senator Kohl. Mr. Attorney General, the last time you came
    before this Committee, you strongly defended your decision to
    try the 9/11 plotters in criminal court in New York rather than
    in military tribunals. Since then, the President has said that
    he will review your decision. Do you still believe that
    criminal court is the right place for their trial? If they are
    moved to military tribunals, how would you address the concerns
    that critics have about such tribunals?
        One month ago, you said that the administration was ``weeks
    away.'' When can we expect this decision to be made, Mr.
    Attorney General?
        Attorney General Holder. Well, the administration is in the
    process of reviewing the decision as to where Khalid Sheikh
    Mohammed and his co-defendants should actually be tried. New
    York is not off the table as a place where they might be tried,
    though we have to take into consideration the concerns that
    have been raised by local officials and by the community in New
    York City. We expect that we will be in a position to make that
    determination in a number of weeks.
        Senator Kohl. Thank you.
        Finally, Mr. Attorney General, throughout my own State of
    Wisconsin, and I am sure all across the country, local law
    enforcement agencies speak about how vital the COPS program is
    to their ability to keep our communities safe. It is a highly
    effective program that has proven to be one of the most cost-
    effective ways to fight crime. Last year, I joined with
    Senators Feinstein, Leahy, and others in introducing
    legislation to reauthorize the COPS program and make
    improvements to the administration of the program.
        Can we count, Mr. Attorney General, on your support for
    this legislation? Will you continue to fight for increased
    funding for the COPS program?
        Attorney General Holder. Absolutely. The COPS program has
    historically proven to be one of the most effective ways in
    which the Federal Government can assist its State and local
    partners. I think the historic drops we have seen in crime over
    the last 10 years, 15 years, or so is a direct result of the
    fact that we have put more police officers on the street. State
    and local authorities do not necessarily always have the
    financial capacity to do that, and I think the COPS program has
    been an essential part in allowing our State and local partners
    to deploy more people.
        It would be my hope that even in these tough budgetary
    times we will find a way to make sure that the COPS program
    remains a viable one.
        Senator Kohl. Thank you very much, Mr. Attorney General.
        We turn now to Senator Sessions.
        Senator Sessions. Thank you, Senator Kohl.
        Mr. Attorney General, if there is a problem with U.S.
    Attorneys and Marshals, I hope you will keep us posted on that.
    I think it is pretty clear that the administration has been
    slow in making those nominations. I do not believe there are
    any objections on our side to moving good nominees, and I do
    not believe Chairman Leahy has delayed that. So I think if you
    look at where the delays are, it is lack of nominations.
        With regard to the Khalid Sheikh Mohammed decision, you
    made that decision. You declared in this Committee directly
    that it was going to be tried in New York, and you defended
    that as an appropriate way. It caused quite a bit of
    controversy at the time. I understand now the White House has
    suggested it would not be tried in New York, and I guess it
    makes me a bit uneasy, having served in the Department, to have
    politicians discussing where the cases ought to be tried. That
    is normally the Department of Justice professional prosecutors.
        So what is your position about where the Khalid Sheikh
    Mohammed trial should take place? And are you uneasy that the
    White House is leaking statements about where a criminal case
    should be taken for trial?
        Attorney General Holder. Well, I am not sure there have
    necessarily been leaks. I have said myself that the national
    security team is in the process of reviewing where the case
    might best be held. We have to take into consideration in
    making that----
        Senator Sessions. Who is the national security team?
        Attorney General Holder. The national security team
    includes the Secretary of Defense, Secretary of State, people
    from the intelligence community--the people who meet with the
    President every Tuesday afternoon to review where we stand
    around the world with regard to our terrorist efforts.
        This is a trial that is unique in the sense that it does
    involve very real national security concerns, and I think the
    involvement of the White House--the national security component
    of the White House as well as the national security team in
    helping to make that determination makes sense.
        I am very jealous in guarding the prerogatives of the
    United States Department of Justice.
        Senator Sessions. Well, I think you should be, and I was a
    little--I would expect normally if it is under reconsideration
    that the Attorney General should announce it is under
    reconsideration and not politicians would make their
    announcement. But there is a venue problem, is it not, if the
    case is tried in civilian courts? The Constitution limits venue
    in criminal cases. But if it is tried by a military commission,
    you are not limited in that way. So to try it in Illinois,
    wouldn't that raise venue questions, for example?
        Attorney General Holder. You are obviously a former United
    States Attorney, and the question that you ask is one that I
    asked. If there were the possibility that we moved this trial,
    what would the possible venues be? And I have received from the
    people who I asked that question a list of places in which the
    case could be tried.
        What I will say is that the Southern District of New York,
    for instance, is a much larger place than simply Manhattan.
    There is also the possibility of trying the case in other
    venues beyond New York.
        Senator Sessions. Well, I just think that the simpler and
    more logical decision would be to reconsider fundamentally and
    try this case where it should be, I think, in military
    commissions.
        Isn't it true that the protecting of classified information
    that can be revealed during a criminal trial is a priority of
    our Government? In other words, we do not want to have a trial
    develop in such a way that classified information is revealed
    to the public. And on March 20th of this year, your Department
    answered questions I submitted to them about the danger of
    revealing classified information and the relevancy of that to
    criminal court or military commissions. You testified there was
    not much difference, but the March 20 responses from your
    Department really tell a different story, citing ``key
    differences'' in classified evidence protections and military
    commissions trials that are not similarly present in Federal
    criminal law. Were you aware of this information when you
    testified before us in November?
        Attorney General Holder. Yeah. I do not necessarily agree
    that there are fundamental differences between the protections
    that are available in civilian courts and those that might be
    available in military commissions. The modifications that have
    been made to the secrecy provisions really codify, I think,
    what judges do as a matter of routine in civilian court, with
    one exception, and that has to do with the possibility of
    interlocutory appeals, which, frankly, I think is a good idea
    and perhaps ought to be incorporated into what we do on the
    civilian side.
        Much of the other enhancements that you see with regard to
    military commissions reflect what judges do on the civilian
    side.
        Senator Sessions. Well, that is not what your responses
    say. They list seven different examples of how the military
    commissions are more effective in protecting intelligence
    sources and methods than a criminal trial. Do you dispute that?
        Attorney General Holder. No. Well, I think that those seven
    instances that are listed--I will take your word that is the
    number--as I said, reflect the kinds of things that judges do,
    not because they are obligated to do them by rule or by
    statute, but because they do them in the way in which they
    interpret the CIPA statute.
        As I said, I do think that the one enhancement that exists
    with regard to the military commissions, about the possibility
    of an interlocutory appeal, is something that we ought to
    consider. And we should always be looking at the CIPA statute
    to see how we can make it more effective.
        Senator Sessions. Well, I agree with that, but I would just
    say to you, Mr. Holder, that when you try a person in civilian
    court, you have to give the Miranda warning upon taking them
    into custody. You have to tell them they are entitled to a
    lawyer, they are entitled to a speedy trial, they are entitled
    to file discovery of the Government's case--all immediately,
    basically. And when you try them, hold them in military
    custody, you do not have to charge them at all because they are
    a prisoner of war until the war is over. But if they have
    violated the laws of war and committed criminal acts, they may
    be tried, if you choose to try them, in military commissions.
    It just makes perfect sense to me that these cases would be
    tried there. That is the result of a national consensus after
    the 9/11 Commission issued their report. Congress has passed
    legislation to that effect, and the President, one of his first
    acts was to set aside and stop these commissions. And you have
    blocked their progress since then, it seems to me.
        So I think you need to re-evaluate this. I do not think the
    people of New York want this trial anywhere in their State or
    their city or the Southern District. There are many legal
    questions that will arise, so I just hope that you will re-
    evaluate this--apparently, the White House is; I hope that you
    will--and that we will soon have clarity about what the policy
    of the Department of Justice is.
        Attorney General Holder. The decision that I made and the
    decisions that I will make with regard to the placement of any
    of these trials depends on what is best for the trial. I do
    this on a case-by-case basis with regard to the evidence that
    we would seek to admit, concerns about some of the evidence
    that might have to be admitted, depending on the forum that we
    would use, the impact of the use of certain evidence on the
    intelligence community and what it might do for our ability to
    interact with our allies.
        There are a whole variety of concepts and of things that
    have to be taken into consideration, and what I have tried to
    do and what we will try to do is make these decisions on a
    case-by-case basis with the aim of being most effective in a
    particular trial and protecting the American people.
        Senator Kohl. Thank you, Senator Sessions.
        Senator Feinstein.
        Senator Feinstein. General, I think your last sentence was
    very important, and I think that the degree to which this
    dialog has escalated is really very unhealthy. Democrats did
    not do to President Bush following 9/11 what is being done to
    this administration with respect to their decisionmaking. And I
    really regret it, and I really find it reprehensible.
        I believe that the best interests of the people of this
    Nation are served by the administration--you, Mr. Attorney
    General, and the President--having maximum flexibility as to in
    which venue these defendants should be tried.
        I have served now on the Intelligence Committee for some 18
    years, on this Committee for over 17 years, and I have never
    seen anything quite like this. The record is ignored. It does
    not matter that the Bush administration brought 200 terrorists
    to justice under Article III courts. It does not matter that
    the military commissions, which have been fraught with
    controversy, have convicted three, two of whom are out. It does
    not matter that Zazi pled guilty. That was a real threat. That
    was a real threat to the city of New York. The FBI did
    magnificent work. He pled guilty. David Headley is a serious
    terrorist. He pled guilty. And the fact of the matter is that
    Article III courts have other charges that they can use if they
    do not have the evidence to sustain a pure terrorist charge.
    You should have that option. You should also have the option of
    the military commission.
        I have come to the conclusion that a lot of the attacks are
    just to diminish you, and I do not think you should buy into
    that at all. I think you should remain strong.
        Now, I have had concern about New York City. I am a former
    mayor. I was mayor in the wake of an assassination, a major
    riot. I know what happens inside a city with a lot of scar
    tissue. And that is hard to perceive unless you have been
    there, done that, and understand it.
        So I understand why New Yorkers feel the way they do. I
    also understand why the best interests of our country are
    served if you remain strong and make the decisions based on the
    legal facts and where we best get a conviction. And I just want
    to urge you to remain strong in that respect.
        The record of the Article III courts in the conviction of
    terrorists in this country is unparalleled, and that is
    absolute fact.
        I wanted to ask you a question on indefinite detention, if
    I might. The Immigration and Nationality Act and the PATRIOT
    Act both allow different types of indefinite detention under
    narrow circumstances. I think it is important that the
    executive branch strike the right balance between preserving
    the rule of law and releasing individuals who we know are
    determined to harm our Nation, and this is a difficult area.
        I would like, Mr. Holder, to ask your opinion: In what
    narrow circumstances can the executive branch hold detainees
    who continue to pose a security threat but cannot be prosecuted
    for past crimes?
        Attorney General Holder. Well, again, we have to look at
    these cases individually. We make these determinations on a
    case-by-case basis. People who we decide should be held under
    the laws of war have the right to a habeas proceeding, so a
    judge has the ability to look and make the determination as to
    whether or not the detention that we seek is, in fact,
    appropriate. We have won some cases in that regard. We have not
    been successful with others. Some are under appeal. Some of the
    people who have been ordered released by judges have been
    released.
        We use that power, again, with the thought that what we
    want to do is to keep the American people safe and not release
    people who would pose a threat to the United States or not
    release people who we do not think can be placed in other
    countries and where remedial measures can be put in place to
    ensure that they would not pose a threat to our people.
        So we use that power only where we think it can be
    appropriately used. I think if you look at the number of people
    that we had at Guantanamo, the number of people that we would
    seek to detain in that way is, I think, relatively small.
        Senator Feinstein. Thank you. I have a question here that I
    wanted to ask. I cannot find it.
        About a year ago, we passed legislation with respect to the
    detention of children that are brought to this country not at
    their request but similar to the Elian Gonzalez case. I learned
    some time ago that we have about 5,000 children who at that
    time were subject to serious detention in jail facilities, some
    of them very, very young. And we passed a bill a year ago
    asking you to do certain things, and we have had no response to
    that.
        Would you take a look at that and see if we can get that
    show on the road, so to speak?
        Attorney General Holder. Yes, I will look at that. The
    concern that you have is one that I have as well. The
    detention----
        Senator Feinstein. These are regulations that have to be
    implemented.
        Attorney General Holder. Right, and we will look at that.
    The concern about children and their detention and what that
    means for their development, their separation from parents, I
    mean, these are all things that are, I think, very legitimate
    concerns, so I will look at those regulations.
        Senator Feinstein. All right. Can you give us any kind of a
    timeline? I have waited a year, and if you could give us a
    timeline--a lot of children out there. This has to do with
    indefinite detention. It has to do with guardianship. It has to
    do with an ability to return them to the country if there is a
    place for them.
        Attorney General Holder. What I can do is this: Maybe when
    I get back this afternoon to the Department, I will look to see
    what the state of play is, and then if I can, I will promise to
    get you a letter by the end of the week to give you a sense of
    when it is that we can start to do something in a substantive
    way.
        Senator Feinstein. Thank you. I appreciate it.
        Thank you.
        Senator Kohl. Thank you, Senator Feinstein.
        Senator Hatch.
        Senator Hatch. Well, thank you, Mr. Chairman.
        Mr. Attorney General, you have a very tough job, and I
    respect how difficult it is. My time is limited, so I will only
    be able to pursue a handful of subjects that I really want to
    take up with you, but I will be submitting several questions
    for the record.
        One of the questions I will be submitting to you is why you
    felt the need to issue a memorandum to revise prosecutorial
    guidelines for Federal marijuana prosecutions. Congress enacted
    the Controlled Substances Act, the CSA, with the specific
    intent of making dangerous drugs illegal. Now, I want to make
    sure that you, as the highest legal law enforcement official in
    the land, are clear on what Congress' intention was with
    respect to the CSA, not the White House's vision or agenda of
    how the Controlled Substances Act should be enforced. So I will
    be looking for a timely response to that question.
        But, briefly, I am sure that you are aware of the impending
    deadline for States to comply with the provisions of the Adam
    Walsh Act. As you know, I take a great interest in that Act.
    Recently, the President sat down with my good friend John Walsh
    on ``America's Most Wanted'' to discuss getting States to
    comply with the Adam Walsh Act. Right now I would like to get
    your pledge to work with me and my colleagues on getting the
    States and SMART, the S-M-A-R-T, on the same page before the
    July deadline without weakening or watering down the Adam Walsh
    Act. Is that OK?
        Attorney General Holder. I will pledge to do that, but one
    thing I would say, Senator, is that we have to work also with
    the State Attorneys General who want to comply with this Act
    and, when I met with them, they expressed concerns about their
    ability to do so. I think we have to make them a part of the
    conversation as well.
        I share your concern. I think that is an Act that we have
    to have fully implemented as quickly as we can and certainly
    within the deadline. But I also think that a part of that
    conversation ought to be the State AGs.
        Senator Hatch. I have no problem with that. That Act is
    very important. It was a tough slog here to get that done and,
    I think, very, very important to have it done.
        Now, before I move to the attempted terrorist attack that
    transpired aboard Northwest Flight 253, let me briefly ask you
    about obscenity enforcement. How is this administration
    enforcing Federal law prohibiting sexually explicit material
    that meets the Supreme Court's definition of obscenity?
        Attorney General Holder. Well, there is a section within
    the Justice Department, the Child Exploitation and Obscenity
    Section, that handles these matters. The people who are there
    are career employees who have worked under Republican as well
    as Democratic Attorneys General and I think who do a good job.
    The----
        Senator Hatch. Well, I ask you this question--I asked this
    of your Republican predecessors because, in my judgment, they
    took a misguided and narrow approach to law enforcement in this
    area, so I am concerned. Sorry to interrupt you.
        Attorney General Holder. No, I was just saying that the
    responsibility for the enforcement lies in that area, and I
    think they are quite aggressive in the prosecution and
    detection of these materials with a focus on, I think, child
    obscenity, which does not exclude other forms of obscenity that
    they can look at.
        Senator Hatch. Yes, but there has been a pattern at the
    Department of Justice to prosecute only the most extreme
    obscene materials. Now, this particular type of material may
    virtually guarantee a conviction, but it is not the most widely
    produced or consumed and, therefore, its prosecution may have
    very little impact on the obscenity industry. So that is what I
    am concerned about. This approach of moving the prosecution
    line out to the fringe signals that material that is just as
    obscene, though less extreme, is let off the hook. I believe
    that approach is misguided and contributes to the proliferation
    of obscenity that harms individuals, families, and communities.
        So I am very concerned about it, and I hope you will really
    take a real look at it because currently there is an Obscenity
    Prosecution Task Force at the Department of Justice. Now, will
    you allow the director of that task force to enforce Federal
    obscenity laws without restricting them to the most extreme
    obscene material?
        Attorney General Holder. We will certainly enforce the laws
    using the limited resources that we have and go after those
    cases that, as we always do, have the potential for the
    greatest harm. There are First Amendment considerations that
    have to be taken into account, but it does not mean that we
    will not be serious about the enforcement of those laws.
        Senator Hatch. OK. Let me transition and call your
    attention to the Christmas Day bombing attempt of Northwest
    Flight 253. On January 26th, I joined in sending a letter to
    you regarding the decision to charge Umar Farouk Abdulmutallab
    in Federal court. In your response letter back to me dated
    February 3, 2010, you laid out an explanation defending your
    decision to charge this terrorist in Federal criminal court.
    You further explained that you alone made this decision, but
    you referenced the previous administration's decision to charge
    Richard Reid and noted the similarity of these two cases.
        Now, I would point out that in the Reid case, which
    occurred in December 2001, the military detention system did
    not yet exist. Attorney General Ashcroft did not have the
    option of military detention. However, you do because of the
    Military Commissions Act.
        In the Military Commissions Act of 2009, Section 950(t),
    that defines crimes that can be prosecuted under the military
    commission. One of those crimes listed under 950(t) is
    hijacking or hazarding a vessel or aircraft. Clearly, the
    actions of this man jeopardized the lives of passengers and
    hazarded the aircraft.
        Now, did you pursue the feasibility of prosecuting
    Abdulmutallab under a military commission based on Section
    950(t) of the Military Commissions Act?
        Attorney General Holder. Well, one thing I would say is
    that although the military commissions were not in existence at
    the time that Richard Reid was apprehended, law of war
    detention authority certainly did exist at that point.
        With regard to the decision, it was a decision that I made
    after consultation on December the 25th. There were a couple of
    conversations that occurred with members of the intelligence
    community. And then on January the 5th, in a meeting that we
    held in the Situation Room, I laid out for members of the
    intelligence community as well as the defense community the
    decision, the thought that I had about pursuing this in the
    criminal sphere, and there were no objections raised to that.
        The decision that was made with regard to Mr. Abdulmutallab
    was to place him in an environment, in a forum in which we
    could most effectively try the case. I think the decision that
    was made has been shown to be the right one given the fact that
    we had the ability to get information from him in that 1 hour
    interaction immediately after he was apprehended and then the
    information that he has since provided as a result of his
    decision to cooperate with the Federal Government.
        Senator Hatch. Well, Mr. Chairman, my time is up. I
    appreciate your service and I appreciate your answers. I will
    submit a number of questions for you.
        Attorney General Holder. Thank you.
        [The questions of Senator Hatch appears under questions and
    answers.]
        Senator Kohl. Thank you, Senator Hatch.
        Senator Feingold.
        Senator Feingold. Thanks, Mr. Chairman.
        The Committee is well aware of my support for Federal court
    trials, let me simply echo what Senator Feinstein said so well.
    Continued strength on your courageous actions in this regard. I
    have a statement that discusses that issue, and I would ask
    that it be placed in the record so I have time to discuss other
    topics.
        Senator Kohl. Without objection.
        Senator Feingold. Thank you, Mr. Chairman.
        [The prepared statement of Senator Feingold appears as a
    submission for the record.]
        Senator Feingold. Let me also take a moment to compliment
    you and Assistant Attorney General for Antitrust Christine
    Varney. Under your and her leadership, the Antitrust Division
    of the Department has made it clear, after many years of
    neglect, that enforcement of our antitrust laws is a priority
    for the Department, and I am especially grateful for the
    Department's focus on agriculture issues in partnership with
    the USDA, and I was very pleased to hear the Department will be
    holding a dairy workshop in Wisconsin in June. It means a great
    deal to our producers and others in the State of Wisconsin.
        Let me turn to a couple other things.
        Senator Kohl asked you about the COPS program. As you know,
    I strongly support that program and other Federal law
    enforcement assistance grant programs. I hear repeatedly from
    law enforcement in Wisconsin just how important these grant
    programs are, particularly during tough economic times. The
    COPS hiring grants in the Recovery Act allowed my state to hire
    or rehire 58 police officers, and these were certainly needed
    in the jurisdictions where they were provided, but I do think
    it is important that these dollars are distributed fairly
    between cities and counties. In meetings I have had recently
    with Wisconsin law enforcement, it was brought to my attention
    that Wisconsin's sheriffs received zero COPS hiring grants
    through the Recovery Act.
        Law enforcement everywhere is forced to do more with less
    these days, but this struck me as a bit of an unfair outcome
    for counties in my State. It is my understanding the Department
    is looking at possible changes to the grant methodology. Just a
    bit, sir, on the status of that review. How quickly can we
    expect it to be modified and sort of updated on that effort?
        Attorney General Holder. Well, quickly, before I go through
    that, you are absolutely right that there is a focus in our
    Antitrust Division on the whole question of agricultural
    concerns. I will be attending, with Secretary of Agriculture
    Vilsack, a number of forums around the country. I think we have
    five scheduled; we have done one already in Iowa with Senator
    Grassley.
        With regard to the question of the allocation of COPS
    funds, I think sheriffs--I think my numbers are correct here--
    got about 17 percent of the money that was awarded last year.
    We are in the process of looking at the allocation formula that
    we use. It was generally based on what the economic condition
    was in a particular jurisdiction, what the crime rates are in
    that same jurisdiction.
        I have talked to representatives of the sheriffs'
    communities, and they raise, I think, very legitimate concerns.
    And so as we construct the methodology that we are going to be
    using next year, we will take that into consideration. And I
    would expect that we will probably have a determination made
    over the next few weeks as to what exactly the formula is going
    to be.
        Senator Feingold. Thank you.
        Prosecutors and public defenders in Wisconsin have been
    telling me that they are having a harder and harder time
    attracting and retaining qualified attorneys in their offices.
    Many of these public servants have had to resort to taking a
    second job to pay off their law school debt. I am told that
    local prosecutor and public defender offices typically have
    attrition rates between 30 and 50 percent. This is obviously a
    serious problem in our criminal justice system and one of the
    many reasons I was a supporter of the John R. Justice
    Prosecutor and Defender's Incentive Act, which created a much
    needed student loan repayment program for prosecutors and
    public defenders. It was enacted in 2008 thanks in large part
    to the leadership and hard work of Senator Durbin, but DOJ has
    yet to issue guidelines to enable the States to solicit
    applications for loan assistance.
        Can you tell me a bit about, update me on the status of our
    efforts to launch this? When do you expect that prosecutors and
    public defenders will be able to start applying for assistance?
        Attorney General Holder. Well, even in these difficult
    economic times, I think the wisdom of that Act is from my
    perspective relatively obvious. I have been concerned about the
    state of indigent defense. We have talked about that on a great
    many occasions. I am also concerned about what I hear from
    people who work on the other side, from prosecutors at the
    State and local levels. To the extent that we can come up with
    ways in which we can be of financial assistance to these
    groups, I think we need to do so.
        So let me get back to the Department and see where we stand
    with regard to our loan assistance programs and regulations,
    and I will assure you that this is something that for me, given
    the travels that I have had a chance to do over these past 14
    months, this is really a priority. I am really concerned about
    the state of our local criminal justice system and the ability
    to hold onto good people who only want to serve their
    communities. There are economic considerations that are driving
    good people out of the system.
        Senator Feingold. Thank you for that statement, and I will
    have a continued interest in this.
        Law enforcement and corrections staff have long known that
    people with mental illness are significantly overrepresented in
    our prisons and jails. Our jails and prisons were never
    intended and are not equipped to be treatment facilities for
    the mentally ill, but, unfortunately, that is what they have
    often become.
        Wisconsin has started looking at this issue and recently
    convened a task force of law enforcement officers, corrections
    staff, district attorneys, State legislators, and social
    service providers with the goal of developing a strategic plan
    to improve Wisconsin's responses to people with mental illness
    in the criminal justice system. This initiative would not have
    been possible without the leadership of our Chief Justice in
    Wisconsin, Shirley Abrahamson, who was able to obtain some
    funding for the Council for State Governments to organize this
    task force.
        As I understand it, the council received Department funding
    for this and other mental health initiatives as a result of the
    Mental Illness Offender Treatment Crime Act. And while I was
    pleased that Wisconsin received some assistance for this
    initiative, it was one of just four States that received the
    aid out of more than 30 States that applied for assistance. We
    have historically allocated few resources to deal with this
    complicated problem, yet funding for mental illness programs is
    one of the most competitive grant programs in the Department.
        Despite the high demand, the President's budget proposes
    consolidating this important program with the drug courts
    program, and I am concerned that that will mean not enough
    resources for either program.
        Sir, why was that recommendation made?
        Attorney General Holder. Well, I think what we have tried
    to do is, again, in these very difficult economic times, to
    come up with ways in which we can be most effective in
    distributing the limited funds that we have. The concerns that
    you raise are indeed very legitimate ones. We are very
    concerned about the way in which we have de-institutionalized
    our facilities and put so many people who I think would do much
    better in institutions that were well funded and well run, and
    instead we put them in the criminal justice system. I saw that
    as a judge here in Washington, DC.
        What we have tried to do and what we continue to try to do
    is to come up with ways in which we can help our State and
    local partners and help our fellow citizens deal with issues
    that they have to confront.
        Putting those two together, it seemed to us to identify
    ways in which we could consolidate those people who have drug
    problems and come up with alternatives to simply trying them
    and incarcerating them and to also deal with people who have
    mental issues and come up with ways in which we can help them
    other than by incarcerating them.
        We will do the best we can with the resources that we have,
    but the concern that you raised I think is a very legitimate
    one and one that I think as a society we need to focus more
    attention on. I have witnessed this, as I said, as a judge, and
    I am very, very concerned about the way in which we treat the
    mentally ill and the desire to put them in the criminal justice
    system.
        Senator Feingold. Thank you very much.
        Thank you, Mr. Chairman.
        Senator Kohl. Thank you, Senator Feingold.
        Senator Grassley.
        Senator Grassley. I thanked you privately and I want to
    thank you publicly for having the hearings that you are having
    around the country on enforcement of antitrust or review of
    antitrust and agriculture. That is not the point of my
    questions, but I thought I ought to start out there on a very
    positive note.
        [Laughter.]
        Attorney General Holder. That is always appreciated.
        Senator Grassley. At the last oversight hearing, I asked
    you for a list of political appointees who previously
    represented detainees or advocated on their behalf. I think it
    was a very simple request, and you said, quote-unquote, that
    you would consider it. Since then, we have had a back-and-forth
    exchange with two letters signed by all Republicans on this
    Committee. Your staff has refused to provide the information,
    and yet the Justice Department managed to verify or provide
    names to Fox News.
        You said this inquiry has called into question the
    integrity of political appointees at the Department, so I want
    to make clear that I am not here to call into question the
    integrity of any employee of the Department. In fact, I agree
    with the Department's view that personal attacks on the
    Department employees are inappropriate.
        My inquiry, though, seeks to understand who is advising you
    on these decisions given the serious impact these issues have
    on our National security. These questions are about
    transparency, about openness, and about accountability. The
    platform positions President Obama ran on in 2008 and which
    culminated in a Presidential Memorandum on Openness and
    Transparency in Government that he assigned January of last
    year.
        So a very simple yes-or-no question: Would you provide the
    names of political appointees at the Department who have
    previously represented detainees or advocated on detainee
    issues?
        Attorney General Holder. With all due respect, Senator--and
    I know that your request comes from what I will call a good
    place. Yours was an honorable request, and the hesitance that I
    had I think has been borne out by what I have seen.
        There has been an attempt to take the names of the people
    who represented Guantanamo detainees and to drag their
    reputations through the mud. There were reprehensible ads used
    to question their--in essence, to question their patriotism. I
    am not going to allow these kids, I am not going to be a part
    of that effort. And so, with all due respect, their names are
    out there now; the positions that they hold are out there. That
    has all been placed in the public record. I am simply not going
    to be a part of that effort.
        I will not allow good, decent lawyers who have followed the
    greatest traditions of American jurisprudence, done what John
    Adams did, done what our Chief Justice has said is appropriate,
    I will not allow their reputations to be besmirched. I will not
    be a part of that.
        Senator Grassley. Well, remember that this is a request
    from this Committee, and I think all the people on it were very
    sincere about it. So I will move on.
        You recently said that attorneys representing unpopular
    clients are patriots. I want to comment, though, that I doubt
    that you would share the same feeling for lawyers who represent
    the Mafia, and I doubt that you would hire them in the Justice
    Department.
        The Department's response said that the Department of
    Justice does not keep a centralized data base of recusals, and
    it is the honor of the employees to recuse themselves.
        Now, you know that large law firms like ones you have
    served in have conflict committees and procedures in place to
    ensure that rules are followed. Why shouldn't the Department of
    Justice, not just under your leadership but under leaderships
    before you, have some centralized system, a conflict system as
    private firms have?
        Attorney General Holder. I think that is actually a
    legitimate concern that you raise, and that is something that I
    think is worthy of consideration, because you are right that
    there is within certainly the law firm that I was a member of
    such a data base. And that I think is something that we can
    consider at the Department.
        Senator Grassley. I want a Freedom of Information question
    and discussion with you. On January 21, 2009, President Obama
    issued a Presidential memorandum to the heads of all executive
    departments and agencies regarding Freedom of Information. That
    memorandum stated, ``All agencies should adopt a presumption in
    favor of disclosure,'' and then directed you to issue new FOIA
    guidelines, which you issued March 19th last year. Your
    guidelines stated that, ``An agency should not withhold
    information simply because it may do so legally.'' They also
    limited when the Justice Department would defend the denial of
    FOIA requests. I believe the guidelines were a good step in
    opening up Government and honoring President Obama's pledge for
    transparency.
        However, when the Department posted the annual FOIA report
    back in March, the facts, I think, painted a very different
    picture. An analysis by the Associated Press found that in
    fiscal year 2009 Government agencies cited FOIA exemptions
    468,000 times compared to 312,000 times in fiscal year 2008.
    One exemption, (b)(5), was used almost 71,000 times in fiscal
    year 2009 compared to 47,000 times in fiscal year 2008, and all
    of this occurred despite a total decrease in FOIA requests in
    fiscal year 2009. These numbers, I think, ought to be shocking
    to anybody that talks about transparency.
        So what is the reason--I am going to ask two questions.
    What is the reason for the substantial increase in the use of
    FOIA exemptions by this administration? And if the use of
    exemptions continues to increase in fiscal year 2010, what will
    you do to personally ensure that agencies are more transparent
    and responsive to the public's right to know and to what the
    President says he wants his executive branch of Government to
    do?
        Attorney General Holder. The President has been clear, and
    I think in the regulations that I issued I was clear, that FOIA
    and the release of information, the desire for transparency is
    something that is critical to this administration. The
    statistics that you have cited are indeed troubling. I am not
    exactly sure what the reason is, but I think it requires some
    further examination to ensure that those people who are
    responsible for making FOIA decisions are doing so in a way
    that is consistent with the desires of the President and the
    directions that I have issued.
        We will review that and see what has happened. I can assure
    you, though, that the President is sincere, I am sincere, in
    trying to make sure that we are responsive--or more responsive
    to FOIA requests.
        Senator Grassley. I hope you will send your message to all
    the agencies from the President. I am done.
        Senator Kohl. Thank you, Senator Grassley.
        Senator Durbin.
        Senator Durbin. Mr. Attorney General, thank you.
        In response to Senator Grassley's inquiry--and I respect
    the Senator from Iowa very much--I want to thank you. I think
    it was a courageous position you have taken, and the right one.
    History tells us that it was the Supreme Court that ruled that
    the Guantanamo detainees had the right to file petitions of
    habeas corpus. It was the Bush administration which said that
    they had the right to counsel. And the argument being made from
    the other side of the aisle, and their inspiration in Fox News,
    is that if anybody decides to represent a Guantanamo detainee,
    they disqualify themselves from future Government service
    because they cannot be trusted.
        You know, if that is the premise of our system of justice
    that legal representation or possible inclinations toward one
    party over another disqualify you, where does it end? Does it
    end with prosecutors who fail to prosecute? Does it end with
    judges who may rule in favor of a defendant? I think you are
    standing up for a very fundamental principle and rule of law
    here that does go back to John Adams and the earliest days of
    this Nation, and I thank you for doing this. The men and women
    who have had the courage to stand up as professionals who have
    taken an oath to represent not only their clients but defend
    our Constitution and laws have the right to that kind of a
    defense, and I thank you for the courage to do so.
        And I hope the record will reflect it was the Bush
    administration that said Guantanamo detainees have the right to
    counsel. This was not a decision made by the Obama
    administration. It was the right decision by the Bush
    administration. Let me add that, too.
        On Miranda warnings, I think you are well aware--and we
    should say on the record--there is a lot of question here about
    using Article III courts for fear of giving a Miranda warning
    to a person. What was the policy of the Bush administration
    when it came to Miranda warnings for suspected terrorists
    arrested in the United States?
        Attorney General Holder. I do not think it was
    fundamentally different from the policy that we now have in
    place, and one thing I think people have to understand is that
    the giving of Miranda warnings does not necessarily mean that
    the flow of information stops. In fact, I think a good case can
    be made that once people get Miranda warnings, the information
    flow continues, or that if it stops temporarily, once a lawyer
    is introduced, a defense lawyer is introduced into the mix,
    that lawyer then counsels his client, especially in terrorism
    cases, and given the really lengthy sentences that somebody
    faces in an Article III proceeding, that lawyer works to
    convince the client to cooperate with the Government. So
    Miranda warnings are not necessarily ones that have a negative
    impact on our ability to gain intelligence.
        Senator Durbin. Let us go back to a well-known case that
    has resulted in all of us taking our shoes off at airports:
    Richard Reid, the Shoe Bomber. How long after he was detained
    by the Bush administration's Department of Justice was it
    before he was given a Miranda warning?
        Attorney General Holder. I think it was within a few
    minutes. I am not exactly sure.
        Senator Durbin. Five minutes is what the record reflects.
    Under the Bush administration, the Shoe Bomber within 5 minutes
    was given his Miranda warnings. That was the standard. And now
    to argue that a Miranda warning is somehow unwise, unsafe for
    America, is to ignore the obvious.
        And what about the intelligence leaks? That is the second
    argument made about Article III courts, that you cannot
    successfully prosecute a terrorist in court without running the
    risk, if not in fact disclosing sensitive intelligence. What
    was the record under the Bush administration?
        Attorney General Holder. The administration I think did
    quite well in trying cases in Article III courts and used CIPA
    to prevent the dissemination of information, of secret
    information from any of those proceedings.
        Senator Durbin. And one of the leading prosecutors in
    America, the U.S. Attorney for the Northern District of
    Illinois, Patrick Fitzgerald, who was in charge of the
    prosecution in the Southern District of New York of the African
    terrorist, said afterwards that he can do this without
    disclosing intelligence information following the law, backed
    up by others who had been through the same experience.
        Have you had complaints from U.S. Attorneys when you have
    considered Article III prosecutions that somehow that may
    jeopardize and disclose intelligence information?
        Attorney General Holder. No, I have not had that complaint,
    and I think our history shows that Article III courts are
    capable of trying cases without putting at risk intelligence
    sources and methods. The same is true, I think, of military
    commissions.
        Senator Durbin. Well, and that would be an option that you
    would protect, if you could make the choice.
        Attorney General Holder. Right.
        Senator Durbin. Let me ask you this for the record, and it
    has been said by others: If you look at the scorecard since 9/
    11, how many successful prosecutions and convictions of
    terrorists have taken place in Article III courts under the
    Bush administration and Obama administration, and how many have
    taken place in military commissions?
        Attorney General Holder. Well, I think we have had close to
    400 successful prosecutions on the Article III side and three
    in the military commission side.
        Senator Durbin. So those who are arguing that we should
    shift all of these prosecutions to the military side would have
    to stop and explain why this dramatic record of success in
    Article III courts should be rejected at this point.
        Now, let me ask you about the sensitivity of the people of
    New York with KSM. Tell me what is going through the mind of
    the administration and your mind when you think about that
    prosecution in that city after all that it has been through.
        Attorney General Holder. Well, one thing I think we have to
    remember is that, contrary to what somebody said, there was an
    initial negative reaction to that decision, it is quite the
    contrary. I think when one looks at the initial reaction from
    people in New York, the reaction actually was a positive one.
        That being said, as we are making this determination, we
    want to take into consideration what we have heard from the
    mayor, what we have heard from elected officials in New York
    City, what we glean from the people of the city that is
    evidenced in a number of ways, and try to come up with a way in
    which we can come up with a forum that will be most effective
    with regard to that case, whether it is a military commission
    or an Article III trial in New York City or in some other
    place.
        Senator Durbin. I want to make it clear that I am not
    creating or trying to cast any kind of negative impression
    about military commissions. I know Senator Graham and others
    have worked closely, and I do believe that it is a viable
    alternative that you should have at your disposal.
        Is it not true, though, that under the procedural rules of
    military commissions there are some limitations compared to
    Article III courts, for example, when it comes to capital
    offenses?
        Attorney General Holder. Yes. In an Article III court, you
    can certainly--a person can plead guilty to a capital offense.
    That is not allowed in the military commissions.
        Senator Durbin. There would have to be, in fact, some trial
    even if they wanted to plead guilty under those circumstances.
        Let me ask one last question, or I suppose I have run out
    of time here, but let me thank you and let me try to reiterate
    what Senator Feinstein and Senator Feingold have added. I do
    not believe that our system of justice should be driven by fear
    and anger, and that appears to be a driving force among some
    political camps in this country. If we are going to be strong
    as a Nation, we will not be quivering in fear and reacting
    irrationally in anger. We are going to stand by the rule of law
    and stand by principles that have guided us for a long time.
        I thank you for your leadership.
        Senator Kohl. Thank you, Senator Durbin.
        Senator Graham.
        Senator Graham. Thank you, Mr. Chairman.
        Thank you, Mr. Attorney General, for coming. This has been
    a very good discussion about some difficult issues, but one
    thing I would like to reiterate is that President Obama said
    the Nation was at war with al Qaeda. Do you agree with that?
        Attorney General Holder. Yes.
        Senator Graham. I would just urge you to remain strong in
    that thought process because some people do not believe we are
    at war. Some people are just as patriotic as I am, but they
    believe we should be using the law enforcement model
    exclusively, and I think that is a formula for disaster. And
    there are some people who say you can never use Article III
    courts, and I disagree with them. Quite frankly, there could be
    times when an Article III court would be a superior forum. In
    my view, a financier of al Qaeda, you might want to take them
    to an Article III trial because you have more charging
    possibilities. Every al Qaeda operative is not at the same
    level as the next, so I agree with the idea of flexible,
    pragmatic, and aggressive. That is your standard. So I am one
    Senator on the Republican side who has not objected to Article
    III courts being used in a flexible, pragmatic, and aggressive
    fashion.
        Now, when one is at war, we have to realize that the rules
    are different than fighting crime. Do you agree with that?
        Attorney General Holder. That the----
        Senator Graham. The law of war is different than normal
    criminal law in certain aspects.
        Attorney General Holder. In certain aspects, yes.
        Senator Graham. When we capture someone on the battlefield,
    under the law of war we have no obligation to read them their
    Miranda rights. Is that correct?
        Attorney General Holder. That is correct. That is not
    typically done, but even in the Bush administration, a small,
    small number----
        Senator Graham. I totally agree that if you are going to
    charge someone under domestic criminal law, you should read
    them their rights. I would just urge my colleagues to
    understand that when you are fighting a war and you capture
    people on the battlefield--and the whole world is the
    battlefield, in my view--the primary goal is to find out what
    they know about enemy operations, get them off the battlefield,
    then reserve prosecution decisions later. So I hope we do not
    criminalize the war and we will remain flexible, pragmatic, and
    aggressive.
        There are 48 people at Guantanamo Bay, I believe, that this
    administration has identified that are going to be held under
    the law of war on an indefinite basis because they present a
    national security threat, but the evidence is such you would
    not take them to a criminal proceeding with a military
    commission or Article III courts. Is that correct?
        Attorney General Holder. Yes, I am just checking the
    numbers here. That is correct that there are 48 detainees who
    we have determined are too dangerous to transfer and not
    feasible for prosecution.
        Senator Graham. I want to, one, stand by you in that
    decision. I think it is a rational, logical decision, not
    generated out of fear or revenge, but out of necessity. We are
    not fighting crime. We are not fighting the Mafia. We are
    fighting an international, sometimes unorganized, organization
    called al Qaeda who is bent on our destruction, and some of
    these people need to be held under our values, under the law of
    war, with due process, but we should not view what they did as
    a common crime but as a military threat. And it is my
    understanding that every detainee, whether held under the law
    of war or not, will have their day in an Article III court.
    There is a habeas proceeding available to every detainee at
    Guantanamo Bay. Is that correct?
        Attorney General Holder. That is correct.
        Senator Graham. And one of the judges recently granted a
    habeas petition to an alleged member of al Qaeda who confessed
    to being a member of al Qaeda, who swore allegiance to al Qaeda
    in the 1990's, but the judge decided to grant the habeas
    petition because the Government could not prove on the day of
    capture in 2001 they were still a member of al Qaeda.
        It is my view, Mr. Attorney General, that we need to reform
    our habeas procedures and that a presumption should follow the
    detainee that once you are a member of al Qaeda, proven that on
    the day of capture, there would be a presumption that you are
    still a member of al Qaeda, and the court could hear evidence
    otherwise. This is just an example of why the Congress, in my
    view, ladies and gentlemen, needs to get more involved. So hang
    firm, stand strong, be fair, be aggressive, be pragmatic, but
    do not lose sight that we are at war.
        Now, when it comes to confinement facilities, I share the
    President's concern that Guantanamo Bay has become an iconic
    image used against our troops in the field, and it would be
    preferable, in my view, to have a new facility that starts over
    and is not tainted by the past of Guantanamo Bay even though it
    is a well-run, secure facility now, and I would like to work
    with you in that regard. And I am losing the audience,
    apparently, but that is OK.
        Now, when it comes to future captures, where would we put
    someone that was captured in Yemen that we believed to be a
    member of al Qaeda? Where would they be detained?
        Attorney General Holder. Well, that is one of the issues, I
    think, that we have to wrestle with. It depends on, you know,
    what we ultimately want to----
        Senator Graham. Since my time is short, we are basically a
    Nation without a viable jail. This President is probably not
    going to send new people to Guantanamo Bay. Is that a fairly
    accurate statement?
        Attorney General Holder. That is certainly something we
    would try to avoid.
        Senator Graham. Right. And if you send these people to
    Bagram Air Base, you are going to bring the Afghan Government
    down. So to my colleagues who think that we can close
    Guantanamo Bay and send them to Afghanistan and the Afghan
    Government becomes the American jailer, I think you are making
    a serious mistake in the war on terror. Do you agree with that?
        Attorney General Holder. I think we have to come up with
    options, and I think we need to work with the Congress to try
    to develop what those options might be.
        Senator Graham. This is music to my ears because I think we
    do, also, because we are fighting a war, we do not have a
    viable jail. Some people say use Guantanamo Bay, it is safe and
    secure. I would argue listen to the commanders, see if we can
    find a better jail that would meet the needs of this unique war
    on terror.
        So at the end of the day, I think the decision to prosecute
    KSM in civilian court was a mistake. The fact that you are
    being flexible, pragmatic, and aggressive is the right track to
    take. And I would urge you to work with the Congress to see if
    we can fashion detention policy that allows us to be at war
    within our values, allows you to use Article III courts when
    appropriate, but never lose sight of the fact that if you are a
    member of al Qaeda, you have not violated our immigration laws;
    you are a continuing threat to the world. And the idea of
    holding someone with due process who is a member of al Qaeda
    until they die in jail is OK with me, because we have done it
    in every other war. But this is a war without end, so I am
    willing to do more than we have done in past wars, as long as
    we do not lose sight of the fact we are at war.
        Thank you for your service, and I look forward to working
    with you as we solve these very difficult problems.
        Attorney General Holder. Right. Thank you, Senator.
        Senator Kohl. Thank you, Mr. Graham.
        Senator Schumer.
        Senator Schumer. Thank you, Mr. Chairman, and thank you,
    Attorney General, for your service.
        I just want to go over a little bit. I know New York came
    up in questions. Senator Durbin and then Senator Feinstein said
    something. And I just agree with what she said from her
    experience as a mayor, how difficult it would be handling a
    trial in a densely populated area. I know you have said you
    have not yet ruled it out. I hope you will. The overwhelming
    consensus in New York, as you know, is that it should not be
    there, and I just strongly urge you to make sure that that does
    not happen and to find a better alternative.
        Attorney General Holder. Senator, if I could just
    interrupt, what I said was that it has not been ruled out but
    that we would take into consideration obviously the expressions
    of the political leadership there as well as what we are able
    to glean from the population in making that determination. So I
    want to make sure that that is a part of what I have said.
        Senator Schumer. OK. I appreciate that. I am going to move
    on here to other areas in New York which are having other kinds
    of problems.
        What we have found throughout the country, I think, the
    Gang Intelligence Center's 2009 Gang Threat Assessment found
    that gangs are increasingly migrating from urban areas to
    suburban and even rural communities. Unfortunately, there are
    two communities in New York that are all too familiar with this
    problem: Newburgh in the Hudson Valley and Brentwood, Suffolk
    County, on Long Island.
        The situation in Newburgh has become shocking over the past
    year. There are reports of shoot-outs in the town streets,
    strings of robberies and gang assaults with machetes. Homicides
    are up, rape is up, robbery is up, gun crimes are up, and
    anecdotal evidence suggests that the gangs in the area have
    started to target the schools, which is what gangs often do, to
    recruit new members. So Newburgh could very much benefit from
    increased Federal help and resources.
        So my question is: Would you agree to go to Newburgh
    yourself or send a high-level official with expertise in this
    area to meet with local law enforcement and community leaders
    to work on decreasing this increasing gang presence?
        Attorney General Holder. Yes, I would agree to have
    somebody, if not myself, go to Newburgh for the purposes that
    you indicated. But I would also want to make clear that the
    United States Attorney for the Southern District of New York
    has been focusing attention on the problem in Newburgh, has
    been working with the local officials there as well. And I
    think that we will see shortly some of the results of that
    work. But I will not preclude----
        Senator Schumer. I think we need all levels. The U.S.
    Attorney obviously, I have been--you know, our office has been
    in touch with his. But we need some Washington presence as
    well.
        Attorney General Holder. That is fine.
        Senator Schumer. I appreciate your agreement to either you
    or a high official expert in this to come and help us.
        The second question, related: A local newspaper in the
    Hudson Valley, the Times Herald-Record, reported that the FBI
    has brought Newburgh's violent gang situation to the attention
    of the White House because it was a serious example of what is
    happening with gangs. Will you commit to having the appropriate
    agencies in your Department examine the violence in Newburgh to
    determine whether increased Federal resources are warranted, as
    I believe they are?
        Attorney General Holder. Yes, we are committed to that. I
    think that you will see that we have, in fact, been doing that.
    The problem that you note in these two communities is, as you
    say, acute and is worthy of Federal attention and Federal
    assistance to the local authorities who are trying to do the
    job but I think need some help.
        Senator Schumer. Yes. I am not being critical.
        Attorney General Holder. And I am not either.
        Senator Schumer. I am just saying they need additional
    help.
        Let me go to Brentwood, just similar problems: 50 arrests
    of gang members since December, 9 violent killings last year--
    in a small community, that is a heck of a lot--5 killings since
    this January in Brentwood and the surrounding areas. And the
    FBI did recently brief my staff on gang activity in Brentwood.
    I was pleased to hear that the FBI and other Federal partners
    are working closely now with local law enforcement. They have
    met with the community leaders. They are increasing resources
    significantly to fight gangs in the area.
        So could you please elaborate on the work and involvement
    of the Department in Brentwood? Could you speak to what you are
    learning from those efforts? And, finally, given the gang
    threat assessments area of increasing gang migration to non-
    urban areas, would you elaborate on the work of the Department
    to increase Federal resources generally to fight gangs in these
    non-traditional areas?
        Attorney General Holder. I think the gang problem is a very
    serious one. We have seen gangs that were centered in one city
    become national in their scope, national in their reach. We
    have seen, as you have indicated, a migration of gang activity
    from cities to rural and to suburban areas. And we in law
    enforcement have to adapt to that and break old models, old
    ways of thinking. Gangs are not simply an urban phenomena
    anymore.
        With regard to Brentwood, I know that the FBI has given
    attention to that problem, as you have indicated. Our hope is
    that through our cooperation with the local authorities there,
    we could have a meaningful impact on the problem that has
    unfortunately afflicted the Brentwood area.
        Newburgh and Brentwood are--you know, I am a New Yorker--
    two wonderful communities, and I think what we have seen there
    is unfortunately too typical of what we are seeing, increasing
    numbers of----
        Senator Schumer. Anything specific you can let us know
    about Brentwood?
        Attorney General Holder. Well, there are operational
    concerns I have with regard to revealing too much other than to
    say that the FBI is involved in a meaningful way with regard to
    the Brentwood problem. And, again, I think this is something
    that will bear fruit in a relatively short period of time.
        Senator Schumer. If my office could get a briefing on some
    of those, that would be very helpful.
        Attorney General Holder. Sure.
        Senator Schumer. I do not have any more questions, so I
    will yield back my time.
        Senator Feinstein [presiding.] Thank you very much,
    Senator.
        Senator Kyl.
        Senator Kyl. Thank you, Madam Chairman.
        I, too, am going to first address some local issues, Mr.
    Attorney General. I am very disappointed that the
    administration appears to be putting a very low priority on
    securing our southern border. Violence there is escalating
    exponentially. Thousands of people have been killed just south
    of the border by drug cartels. Last week, Arizona buried a very
    fine citizen, a rancher in Cochise County, Robert Krentz. The
    violence is spreading, and yet action that I have requested
    from you and from the Secretary of Homeland Security is
    lacking.
        Let me back up. I am talking about Operation Streamline for
    which both the Department of Justice and the Department of
    Homeland Security have responsibility. Last Friday, I visited
    the Yuma sector of the border and heard the tremendous success
    that Operation Streamline has brought to that sector of the
    border, similar to the Del Rio, Texas, sector. There is
    virtually no illegal immigration occurring there now. Part of
    it is because of a double and in some cases triple fence with
    adequate Border Patrol agents. Part of it is the deterrent
    effect of Operation Streamline, which puts even first offenders
    in jail for at least a couple of weeks, and it can be up to a
    month or maybe even longer, depending on how many times people
    have crossed the border.
        Now, this takes some resources from the Department of
    Justice, and I have asked you, when I met with you before your
    nomination hearing in 2009, about the funding for that. I
    discussed it again with you at your nomination hearing on
    January 15, 2009. We discussed this because the Department of
    Justice needs to provide the funding for certain elements of
    it. I asked you what resources were necessary for the Marshals
    Service, the courthouse renovations that may or may not be
    necessary, certain administrative costs--criminal clerks and
    those kinds of things, potentially additional judges, some
    additional detention spaces, though there appear to be plenty
    of opportunities to rent detention spaces. All of this would
    fall under the Department of Justice jurisdiction. I have
    gotten no response to these repeated requests.
        So, finally, I attached an amendment to the fiscal year
    2010 Department of Homeland Security appropriations bill that
    requires collaborative--the Department of Justice and the
    Department of Homeland Security to provide a report to us on
    what these costs are. That report was due from you and
    Secretary Napolitano on December 27th of last year.
        In a response to me in March from questions I submitted on
    December 9th of last year, Secretary Napolitano wrote that,
    ``The report is in the final stages of review process, and we
    anticipate Congress will receive it in the near future. Still
    have not received the report.
        It is my understanding--and I would love for you to be able
    to verify that this is not true--that the Department of Justice
    has not been fully cooperative in providing the information
    necessary to complete the report. The Department of Justice is
    the chief law enforcement agency of the country responsible for
    seeing that the laws are obeyed, and that would assume also
    itself complying with laws, which has not been done here.
        When can we expect to get the report, No. one? Second, do
    you support Operation Streamline or not? Will you support
    funding necessary--will you identify the things that would need
    to be done, and will you support that funding, including by
    making requests for the next budget of the administration to
    provide for funding necessary to both expand Operation
    Streamline to other sectors, including the Tucson sector of the
    border, where just about half of all of the illegal immigration
    is now coming through the southern border?
        Attorney General Holder. Well, first I would express my
    condolences for the citizen in Arizona. That happened while I
    was in Arizona for a U.S. Attorneys conference.
        It is, in fact, a priority for this administration to
    ensure that our borders are secure, and especially the border
    we are talking about, the southwest border. We have tried to
    work with our partners at DHS to be effective in that regard. I
    will check and see what the status is of that report. It is
    certainly not anything that has been brought to my attention by
    anyone either at DHS or within the Department of Justice that
    we have been dragging our feet in the creation of that report.
        There are a variety of mechanisms, I think, that we need to
    use in order to be effective at reducing the flow of illegal
    immigration and all that that implies, all the collateral
    problems that it tends to breed. And Operation Streamline is
    something that, you are correct, you and I have certainly
    discussed in the past.
        We will look at all of the possibilities, I will look at
    all of the possibilities, and I will be supportive of, within
    the interagency process and dealing with the folks at OMB,
    supportive of those things that I think have proven to be
    effective so that we can use our money efficiently and so that
    we can be responsive to the citizens along the southwest
    border.
        What I think we too often think of is that that is a local
    problem, and it is not. It is a national problem. What happens
    along the southwest border has an impact in Chicago,
    Washington----
        Senator Kyl. Could I just interrupt you? I agree. I have
    just got 7 minutes, as you know. Would you ask your staff to
    respond to my staff to set up even a telephone call between the
    two of us--it does not have to be a meeting--to further discuss
    this, especially after you have been able to verify the
    information and provide it to me, please?
        Attorney General Holder. Sure. We will do that.
        Senator Kyl. Totally different subject. On February 26th,
    the House passed the Intelligence Authorization Act for this
    fiscal year. Just before that, it stripped a provision that
    would have criminalized cruel, inhuman, and degrading
    interrogations, which was a staggering provision in its breadth
    and ambiguity. A CIA agent, for example, could have been
    punishable with a prison sentence for up to 15 years if a court
    concluded that the agent blasphemed an individual's religious
    belief during the course of an interrogation.
        Does the administration support adding such a provision to
    the Criminal Code?
        Attorney General Holder. I am not familiar with that
    provision. Torture is certainly a violation of our law. When it
    comes to cruel, inhumane, and degrading treatment, I would want
    to look at that statute and see exactly what the intent was in
    trying to criminalize that. I am not familiar with that.
        Senator Kyl. Would you respond to me in writing as to what
    the Department's position on that would be? Because I suspect
    the issue will arise again.
        Attorney General Holder. That is fine. I will do that.
        Senator Kyl. I thank you very much.
        Senator Feinstein. Thank you very much, Senator Kyl.
        Senator Cardin.
        Senator Cardin. Thank you, Madam Chair, and, General
    Holder, it is always a pleasure to have you before our
    Committee. We thank you very much for your service.
        I want to follow up on the points that many of my
    colleagues have raised in regards to Guantanamo Bay and the
    handling of the detainees that are there. I recently was in
    Guantanamo Bay. I had a chance to visit there 2 weeks ago, and
    it was my second visit, and the type of facility there is
    certainly one that is world class from the point of view of how
    it treats detainees, the type of physical facilities, et
    cetera.
        It was constructed in order to be able to obtain
    intelligence information from detainees. Its purpose was also
    to detain individuals and then, third, for pre-trial and trial
    purposes. Well, the actionable intelligence information is no
    longer as relevant as it was when it was first constructed. The
    number of detainees is far below its capacity. And it has not
    been used very much for pre-trial or trial cases. So as a
    practical matter, as a budget issue, and certainly from a
    symbol, Guantanamo Bay has to close.
        Now, we have talked a little bit today about what do we do
    about the people that are there, how do we try them, do we use
    our Article III courts, do we use the military commissions. I
    support what some of my colleagues have said. I want to give
    you maximum choice. I do not want to restrict the way to get
    the most effective results. I do not want to give the detainees
    more rights than they should have, and that is, why restrict
    the venue in which we should try them?
        But I want to deal with those that we cannot release now
    and we cannot try. You inherited this problem, but it is an
    issue that we have to deal with. On previous occasions, you
    have said that there will be a process for review to make sure
    that basic rights are afforded. How far along are we in making
    that type of review process public in order to get
    international recognition and hopefully support for how we are
    dealing with those that will continue to be detained without
    trial?
        Attorney General Holder. Well, that is something that we
    are still working on. I think that there certainly needs to be
    a process by which an initial determination is made, and that
    has already occurred with regard to the task force and in the
    principals Committee that voted on making the decision to
    detain these 48 people. Obviously, there is a right for them to
    challenge that determination in Federal court, but as I have
    talked about with Senator Graham, there has to be, and the
    administration agrees with this, some kind of ongoing review
    mechanism put in place to ensure that somebody who is detained
    on this basis continues to be a danger.
        It is something that we are still working through in the
    interagency--and, frankly, working with Senator Graham as well.
    My hope would be that we would have something that we will be
    able to share, and put in place, more importantly, in a
    relatively short period of time. But this is something that has
    been focused on.
        Senator Cardin. Let me just repeat the 9/11 Commission's
    recommendation that the United States engage its friends and
    develop a common coalition approach toward detention and humane
    treatment of captured terrorists. I guess my point is that it
    is fine for us to internally develop a review process, but if
    we do not put sunlight on it, if we do not open this process
    up, if we do not engage the international community, and if we
    do not engage the international community on how we are going
    to deal with detainees in the future, this war is not going to
    end anytime soon. And we are apprehending people today, and we
    still have yet to have a real international accord as to how
    these detainees should be handled. Should we have another
    Geneva-type convention to deal with this?
        I think we are looking forward to some broader
    recommendations rather than trying to deal with this internally
    in this country.
        Attorney General Holder. I agree with you. I do not think
    that review mechanism can be done entirely--it must be done in
    as transparent a way as we can. There is a symbolic
    significance to this review process in the same way that there
    is a symbolic significance to the continued existence of
    Guantanamo. We have to deal with this not only on a substantive
    level, but also on a symbolic level. And it would seem to me,
    again, taking into account a variety of things, that we want to
    make sure that this review process, the existence of this
    review process, is something that is widely known.
        Senator Cardin. When should we expect some specifics as to
    how these procedures are being handled? I have heard you say
    frequently as soon as possible, but it is getting late.
        Attorney General Holder. It is a priority. We have now
    gotten to the point where we have made the determination; that
    very able testify made its recommendations, unanimously agreed
    to by the principals, that 48 people should be held in this
    way. Before, we were talking about something that was
    theoretical. Now it is real. We have identified who those
    people are, and I think it is now incumbent upon us to develop
    as quickly as we can what the review mechanism is going to be
    and how transparent we can make that.
        Senator Cardin. Sometime this year?
        Attorney General Holder. I would certainly think that is--I
    certainly think we can do that.
        Senator Cardin. Sometime this month?
        Attorney General Holder. I am not sure we can do that.
        [Laughter.]
        Senator Cardin. I would just urge you--this is an issue
    that is difficult for us to defend when we do not have anything
    to defend, we do not have a policy to defend. So I would just
    urge you to get that to us as quickly as possible.
        Let me turn to a separate subject dealing with our juvenile
    justice system. There have been recent reports that have been
    released showing that many of the individuals in our juvenile
    justice system have been victimized. I would hope that you are
    acting on that report, and the Department of Justice has
    significant responsibility in regards to how juveniles are
    handled in this country, not only from the Federal point of
    view but our States. And I would think this should be a very
    high priority, and I know our Committee is looking at
    legislation here, but we certainly welcome your thoughts as to
    what we should be doing in regards to improving our juvenile
    justice system.
        Attorney General Holder. We would like to work with you in
    that regard. The reports that I have seen from a variety of
    contexts are very disturbing about how juveniles are treated,
    how they are victimized too often in facilities where, frankly,
    they should not be held. I think that the purpose of the
    juvenile system is rehabilitation, and if that is to occur, we
    have to have a juvenile system that is capable of doing that.
    And so I will look forward to working with you in trying to
    make our juvenile system what it can be and it too frequently
    is not.
        Senator Cardin. Thank you.
        Thank you, Madam Chair.
        Senator Feinstein. Thank you, Senator Cardin.
        I would like to take this opportunity to put in the record
    National Security Division statistics on unsealed international
    terrorism and terrorism-related convictions and also a letter
    dated February 18th from the Department.
        [The information referred to appears as a submission for
    the record.]
        Senator Feinstein. Senator Cornyn.
        Senator Cornyn. Thank you, Madam Chairman. Good morning,
    General Holder.
        Attorney General Holder. Good morning.
        Senator Cornyn. In the short time we have together, I want
    to ask you a little bit about the financial crisis and what the
    Department is doing to investigate and prosecute criminal
    activity there, the violence in Mexico and the work that the
    administration is doing to deal with that, and also what the
    administration is doing and what the Department is doing with
    regard to health care fraud, and I have some specific questions
    there.
        I suspect you will agree with me that criminal prosecution
    can be an effective deterrent to those who might be tempted to
    commit future crimes.
        Attorney General Holder. It is the most effective
    deterrent.
        Senator Cornyn. I agree, and that is why, as we have seen
    the investigation of the financial collapse that reached its
    nadir with Lehman Brothers and AIG and this massive infusion of
    taxpayer money to help prop up our financial system and to get
    the economy going again, we are looking at financial regulatory
    reform coming out of the Banking Committee and the like. But
    one thing I have noticed that has been missing is show trials.
    We simply have not had the people who were guilty of criminal
    conduct brought to justice and tried in public and punished for
    committing crimes that the American people are paying for.
        Can you sort of summarize for me what is happening so the
    American people can have some confidence that this ultimate
    deterrent will be utilized, where appropriate?
        Attorney General Holder. Well, the President has created
    the Financial Fraud Enforcement Task Force, and that task force
    is looking at a variety of matters, and a variety of matters
    are under investigation. These are difficult cases to put
    together. They are complex by their nature. They are paper
    driven. They are not easy to put together.
        I think over time we will see more of these trials, and I
    hope that they will have the deterrent effect that I think they
    are capable of having.
        Having said that, there have been some successes. There
    have been indictments brought against Stanford, obviously the
    Madoff case. There have been some other high-profile matters.
    But I think the work--I would focus on the work of the
    Financial Fraud Enforcement Task Force, which is pretty
    comprehensive in its scope. It involved not only Federal
    prosecutors but State and local prosecutors as well, regulatory
    agencies, the SEC is an integral part of this. And I would
    think that you will see coming out of the work of that task
    force the deterrent kinds of things that I think you and I both
    agree ultimately needs to be emphasized.
        Senator Cornyn. Who is coordinating for the executive
    branch the investigations and prosecutions of those guilty of
    bringing our financial system into crisis 18 months ago?
    Because, of course, you have all these, an alphabet soup of
    different Federal agencies--the FDIC, the SEC, obviously the
    Fed, Treasury. Who is coordinating all that? Is it the
    Financial Fraud Enforcement Task Force, or is it a higher level
    and more specific to the financial crisis?
        Attorney General Holder. It is coordinated by the Justice
    Department, and coordinated by me as the head of the Financial
    Fraud Enforcement Task Force. It is an unprecedented effort to
    take, as you put it, the alphabet agencies, Federal prosecutors
    together so that we can be efficient in the investigtion of
    these matters and bring to bear the various expertises that
    exist in these different insttutions, and then bring to justice
    as quickly as possible the people who are responsible for the
    frauds that were prepetrated.
        Senator Cornyn. General Holder, turning now to health care
    fraud, some experts have estimated that as much as $460 million
    is stolen from the Medicare program each year, and that is out
    of a $425 billion annual program. Health and Human Services
    Secretary Sebelius has told me in a letter in response to an
    inquiry I made that there is as much as a 10-percent wrongful
    payment rate for Medicaid payments, 10 cents out of a dollar
    that could be applied to helping provide health care for low-
    income individuals.
        I know that we have talked about this before, but my
    experience as a State Attorney General--and I would be
    surprised if yours is different--in that the pay-and-chase way
    of addressing Medicare and Medicaid fraud does not seem to work
    very well because you have limited resources, and that the
    detect-and-prevent approach has a lot to commend itself in
    terms of a supeior approach. And I would just ask for your
    comments on that and ask hopefully for your commitment to work
    with us to sort of change the paradigm to make it a fairer
    fight between the good guys and the bad guys.
        Senator Cornyn. General Holder, I would agree. We have
    worked, I think, in an unprecedented way--that is, the Justice
    Department with HHS--in trying to get at this problem. The
    amounts of money that are essentially stolen from the American
    people are astronomical. If we look at the last fiscal year, we
    have $1.19 billion in criminal and civil settlement collections
    during fiscal year 2009. That is just a huge amount of money.
        We have put together this HEAT effort, Health Care Fraud
    Prevention and Enforcement Action Teams that we have placed in
    seven cities--we are going to try to expand those I think to 13
    this year--that have been particularly helpful, particularly
    useful in identifying places where we see this health care
    fraud. And we certainly need to detect it and hold people
    accountable where it occurs, but I think you are right, we have
    to come up with mechanisms--that probably means auditors and
    people like that--to prevent this from happening in the first
    place. These fraudsters, once they are detected, what we have
    found is that they move from one city to another. And so what
    we have to do is make it impossible for them to make money off
    these kinds of frauds. We have even seen instances where we are
    now hearing that drug dealers are getting out of dealing drugs
    and into health care fraud because it is less dangerous and
    more lucrative, and that simply cannot be allowed to stand.
        Senator Cornyn. General Holder, I commend the efforts that
    you have made and that you described, although I think we would
    have to all admit that it is just a tiny fraction of the money
    lost to health care fraud. So I would look forward to working
    with you to try to get into this detect-and-prevent mode rather
    than the pay-and-chase mode.
        Let me just close on a question about the Merida Initiative
    and the violence in Mexico. The Chair and Senator Kyl and I all
    represent border States, but as you appropriately stated
    earlier, what is happening in Mexico and along the border
    affects our entire country.
        As we know, there is a war basically going on now between
    the drug cartels and the Mexican Government. President Calderon
    is heroically taking on this challenge. We do not know how it
    is going to come out yet, and that worries me a lot. We have
    put a lot of money and a lot of effort into the Merida
    Initiative, and I believe you and Secretary Clinton, Secretary
    Napolitano, the Director of National Intelligence, and others
    traveled to Mexico City recently to visit with the Mexican
    Government. But why is it that what we are doing now does not
    appear to be working? And are you as concerned as I am that
    this violence will not result in a peace treaty between the
    Mexican Government and the cartels? One is going to win, and
    the other is going to lose, and we do not know what that
    outcome will be right now.
        Attorney General Holder. Well, just for the record, I did
    not accompany them on the trip to Mexico. I was actually
    supposed to be before this Committee to testify, but it got
    postponed. So the Deputy Attorney General actually went in my
    place.
        The work of our Mexican counterparts has been courageous.
    They have literally put their lives on the line. When one looks
    at the number of law enforcement officers, soldiers, civilians
    who have lost their lives in connection with this battle, it is
    indeed alarming.
        I spent over 2 hours in Phoenix when I was down there at
    the U.S. Attorneys conference speaking with my Mexican
    counterpart, the Mexican Attorney General, about the progress
    that we are making. And I think progress has been made in
    Mexico.
        It would be my hope that they will continue this effort.
    They need the help of the United States in a number of ways.
    The Merida Initiative is certainly one of the ways in which we
    can do that. I think we also need to focus on what they call
    the Iron River and the flow of illegal weapons that go from the
    United States into Mexico and that are then trained on very
    courageous Mexican soldiers and innocent Mexican citizens. We
    have used our DEA, our ATF, our FBI to try to help in that
    regard.
        I think the battle of this is very much in the balance, and
    without continued American attention and continued American
    support, I think we decrease the chances that the Mexican
    Government will ultimately be successful. I am confident that
    President Calderon is committed to this fight, but I think we
    have to show ourselves to be good allies in that regard.
        Senator Cornyn. Well, I appreciate your efforts there and
    look forward to continuing to work with you. I have some other
    questions, but I will have to submit those in writing. I would
    note that the latest estimate I saw is that 18,000 people have
    lost their lives as a result of this violence since 2006. I am
    not sure the American people have fully digested that and
    comprehended the scope and the severity of the threat occurring
    right on our southern border, and so we have a lot of work to
    do.
        Attorney General Holder. Yes. I agree.
        [The questions of Senator Cornyn appear under questions and
    answers.]
        Senator Cornyn. Thank you.
        Senator Feinstein. Thank you very much.
        I have on my list next in the following order: Senator
    Klobuchar, Senator Coburn, Senator Kaufman. Senator Franken,
    you are up.
        Senator Franken. Thank you, Madam Chairman, and, General
    Holder.
        I am very concerned about the potential merger of Comcast
    and NBC Universal. I know that you are not allowed to discuss
    the specifics of the merger, but I want to delve into this a
    little bit with you today.
        I am concerned because I see the potential here for
    consolidation of media in a way that is to me very frightening.
    You know, I worked at NBC a long time. I want the best for NBC.
    Jeff Zucker came to me and said this is good for NBC, and I
    said, ``I know it is good for NBC.'' That is not the issue. The
    question is: Is it good for the American people?
        And to me, what we have is a situation where--if this goes
    through, are we going to have a situation where Verizon and
    AT&T see the need to buy networks and studios? And are we going
    to get all our information--because Comcast is the largest
    cable provider and the third largest Internet provider. Are we
    going to be seeing a situation where five companies are
    controlling all the information that we get? And I think that
    is a very dangerous situation.
        Are you familiar with fin-syn, what happened with the
    financial syndication laws in the early 1990s?
        Attorney General Holder. Somewhat, yes.
        Senator Franken. You remember that basically the networks
    were prohibited from owning their own programs.
        Attorney General Holder. Right, OK.
        Senator Franken. And that was reversed. During the
    testimony of that, all the different networks said why would we
    buy our own--you know, favor our own programs? We are in the
    business of getting ratings, and we just buy the best programs.
    Well, obviously, what has turned out to be the case is that has
    not happened at all. They favor their own programs. And this
    set the scene for Disney buying ABC, and for Paramount and
    Viacom buying CBS, and NBC merging with Universal, and Fox, of
    course, owns Fox. So right now we have incredible
    concentration, and most of the shows are owned by whoever owns
    that. And it has reduced competition for independent producers.
        Now, what we are seeing with Comcast is that Comcast is--
    yes, it is a vertical integration, but it is also horizontal
    because they both have sports programming that anybody who is
    carrying--has a cable network has to carry and would be really
    in bad shape if they do not.
        My question is: How does the Department of Justice
    determine whether a merger is horizontal or vertical or both?
    And how does that impact the Department's analysis of this
    merger?
        Attorney General Holder. Well, I am somewhat restricted in
    what I can say about the investigation that is underway with
    regard to the Comcast-NBC merger, but I can assure you that the
    Department is conducting a thorough investigation of that
    proposed transaction. And if a determination were made that
    Comcast's acquisition of NBC would substantially impact
    competition in violation of the antitrust laws, we are
    committed to taking very serious enforcement action.
        I am not really at liberty to talk about it much because it
    is an ongoing investigation, but the Antitrust Division that
    has shown itself to be aggressive, appropriately aggressive,
    headed by Christine Varney; they are looking at this
    transaction.
        Senator Franken. Well, Mr. Varney, when he testified in
    front of the Commerce Committee last month, he testified about
    previous DOJ antitrust actions and discussed some of the
    significant conditions that DOJ imposed on the parties. I am
    skeptical, but I am still open to imposing conditions on a
    potential Comcast and NBC merger, but I have problems with
    imposing conditions. First, it is hard to enforce them since
    someone has to know a condition has been violated and then
    report that to DOJ. And, second, conditions almost inevitably
    expire after a few years. So I want to make sure that the
    Department of Justice--make sure that conditions, merger
    conditions would actually have enough teeth and have a long
    enough life that they would really impose real conditions to
    prevent the very thing I am fearing.
        Attorney General Holder. Well, again, maybe I can just take
    myself away from the NBC-Comcast situation and simply say that
    when we look at these matters, we have a wide range of things
    that can be done, from barring, stopping the merger itself, to
    putting into place a variety of conditions that the parties
    have to agree to in order to allow the merger to proceed--
    again, not speaking about NBC-Comcast, but just more generally.
    And we can, I think, make those conditions ones that are
    enforceable, and have a degree of transparency there.
    Obviously, it involves having on the staff or having access to
    people who are experts in the field, not simply good antitrust
    lawyers at the Antitrust Division, but people who understand
    the particular field that we are trying to regulate. And I am
    confident that we do have that capacity.
        Senator Franken. Well, I would hope that I could in my
    office and the folks over at DOJ who are looking at this can
    have an exchange of ideas on this because this is something
    that affects people in ways they do not understand, including
    just your cable bill. So I want some kind of assurance that I
    will be able to do that.
        Attorney General Holder. Well, now I care. I am a Comcast
    subscriber, and the fact that you point out it could have an
    impact on my cable bill has awakened----
        Senator Franken. I knew I could reach you somehow.
        [Laughter.]
        Attorney General Holder. That is right. You have got the AG
    more than interested than I was going into this. But,
    seriously, we will be glad to----
        Senator Franken. The way to Holder is through his
    pocketbook. I know that.
        [Laughter.]
        Attorney General Holder. We would be glad to work with you,
    to listen to the concerns that you have and the observations
    that you have, given the experience that you have in the
    industry.
        Senator Franken. Thank you.
        Thank you, Madam Chair.
        Senator Feinstein. Thank you very much.
        I see that Senator Klobuchar has returned. Senator, you are
    up next.
        Senator Klobuchar. OK. Thank you very much, Madam Chair.
        Thank you, Attorney General Holder. I first wanted to
    commend your Department, the Department of Justice, and
    specifically the U.S. Attorney's Office in Minnesota for the
    fine job it did on the Petters case, which, as you know, is I
    think second to Madoff in terms of loss and really affected a
    lot of people in our State, a lot of nonprofit groups that got
    ripped off. And he just received a 50-year sentence, and so I
    wanted to commend Todd Jones, the U.S. Attorney, as well as all
    of the great experienced line attorneys that worked on that
    case, so thank you.
        Attorney General Holder. Thanks for sending Todd our way.
        Senator Klobuchar. All right. The second thing I wanted to
    focus us on is just what I have considered the elephant in the
    room when it comes to crime that is affecting people's lives,
    and that is crime on the Internet, that is cybersecurity issues
    that go way beyond individual people, but are going to, I
    think, at some point be a major problem for our country if we
    do not get on the front end of this and become as sophisticated
    as the crooks or even the terrorist groups that are trying to
    hurt our country or rip us off.
        I was concerned on the more micro level for what affects
    people in their individual lives. A recent report from the
    Office of the Inspector General suggests that DOJ should be
    doing more to combat identity theft. The report stated that DOJ
    needs to ensure that its efforts to combat identity theft are
    coordinated and given sufficient priority. And it talked about
    the fact that there is not a person assigned with the
    responsibility to coordinate these efforts, and by some
    estimates, identity theft was the fastest-growing crime in
    America, in 2008 10 million estimated victims, up 25 percent
    from 8 million victims in 2005. We have heard the FBI has
    stopped collecting data on identity theft. That was in this
    report. Could you comment on this report and what your efforts
    will be to remedy it?
        Attorney General Holder. I think you identified not only a
    problem that exists now but one that I think, if unchecked, is
    potentially the crime of the future. As many benefits as the
    Internet brings to us, we see criminals migrating to the
    Internet and using it as a basis to do a whole variety of cyber
    crimes, everything from identity theft to retail fraud.
        The Department takes this very seriously. I think we have a
    good section within the Criminal Division that is effective.
    These people are experts at this. I think they could use more
    resources, but they certainly have the attention of the
    Assistant Attorney General, Lanny Breuer, who runs the Criminal
    Division, and certainly of this Attorney General.
        I think this is an area of crime that we have to get ahead
    of. There are ways in which we can do that, and we are
    committed to doing that.
        Senator Klobuchar. And I am now exploring this myself, but
    do you know why the FBI has stopped collecting the data on
    identity theft?
        Attorney General Holder. I am not familiar with that, but I
    can examine that.
        Senator Klobuchar. It was in the report. I just introduced
    a bill with Senator Thune, and a piece of this is on peer-to-
    peer marketing and what is happening where people innocently go
    on a computer and maybe their kid has downloaded a P2P program,
    and then all their stuff gets stolen. We had a landscape
    company in Minnesota where the employee goes home, does their
    work at home, and the whole employee stuff, all of their
    company stuff is out on the market. Everyone is getting
    identity theft problems, individuals who just happened to
    access. I mean, I just--it is unbelievable to me. And the 2009
    Internet crime report by the Internet Crime Complaint Center
    was released in mid-March. Complaints of Internet fraud were up
    25 percent over a year ago, and the total dollar loss more than
    doubled from 2008. And so just where do you think we should go
    with this? Local law enforcement does not have the resources to
    figure this all out. A lot of it is international. Are there
    things we should be doing with other countries and their law
    enforcement? How do we get a handle on this?
        Attorney General Holder. Well, I think that you have really
    hit on something, and I think this is not something that can be
    done on a local basis or even a national basis. One of the
    things that the Internet allows is for criminals in far-off
    places to almost be in your living room, bedroom, wherever it
    is that you have your computer. And the problem of identity
    theft and other kinds of cyber crime requires the cooperation
    of not only a concentrated effort here within our own country,
    but also with like-minded countries.
        I was in Madrid last week talking to the EU Justice
    Ministers there and the whole question of cyber crime and how
    the Internet is used--one of the focuses we had there was on
    child pornography, but other things as well--is something that
    we are committed to working together to do. It means that we
    have to reach out not only to our allies but also to other
    countries that have been, frankly, somewhat reluctant to be
    cooperative. We have to use diplomatic pressure to make them be
    partners in this effort.
        Senator Klobuchar. OK. I was one of the sponsors on the
    Fraud Enforcement Recovery Act that the President has signed
    into law, and you talked about the forming of this task force.
    Could you talk about what has happened with that sense, what
    are the priorities, and talk about how the voices of local law
    enforcement will have a place at the table?
        Attorney General Holder. Yes, I think it has been a good
    effort so far, and I think that as time passes--and not too
    long a period of time--the results will become manifest. What I
    think is really important about this is that this is not a
    Federal effort. This really is one that involves our State and
    local counterparts, and they are involved in various
    subcommittees. They have leadership roles throughout the task
    force. The needs that they identify we try to deal with. The
    ideas that they have are, I think, excellent ones, and we try
    to incorporate them into the enforcement strategy.
        I really think this is a model for the way in which we can
    work with our State and local partners. They are not junior
    partners. They are equal partners in this effort.
        Senator Klobuchar. OK. Then last, and I know Senator Cornyn
    brought this up, but just the health care fraud issue, and you
    and Secretary Sebelius announced the HEAT group. We have had
    discussions. One of the things that I have been most shocked by
    is that areas that tend to have more disorganized health care
    systems, like Miami, Florida, also tend to have more fraud,
    because not only are there issues of the Government watching
    over it with the $60 billion loss a year, but also that no one
    else is watching over each other, like we might have in
    Minnesota where we have a more organized system so you cannot
    just set up a storefront and get the money sent there because
    then the money is not going somewhere else so someone notices
    it.
        Could you talk about the progress--I know you have these
    hot spots including such as the one in Florida, but we just
    cannot afford to have the money bleeding off into this Medicare
    fraud anymore. And people always talk about it. It is a popular
    thing to talk about it, but if we do not really get something
    done, we are not going to help the American people.
        Attorney General Holder. Well, I think with the use of
    these HEAT task forces, we actually are getting something done.
    I think we have measurable results. We have tried to identify
    the places where we have the greatest instances of health care
    fraud, and those are the places where we put the task forces.
    As I said, we have seven now, and I think we are supposed to go
    to 13 or 14 next year. But you are right. There are certain
    localities that have certain ways in which they conduct
    themselves, certain ways in which they organize themselves that
    make them more susceptible to this. And these fraudsters
    understand that, and they move from one city to another
    identifying those cities that are most vulnerable.
        But I think Senator Cornyn's point is actually a good one,
    that we cannot simply be chasing these people, we have to come
    up with ways in which we prevent this fraud from occurring in
    the first place. So I think it has to be actually a dual
    effort.
        Senator Klobuchar. And then last--and I am not going to
    take any more of my colleagues' time here because I am over
    mine, but I will talk to you about this separately. Senator
    Durbin and I have a bill on organized retail crime. Organized
    retail crime costs retailers approximately $30 billion per
    year, and, again, it is computer related because it is then
    being sold on eBay and other places. And so I think that there
    are some good ideas of how we can work to track and have those
    online marketers stop selling goods that they believe are
    stolen. And so I am going to talk to you about that later.
    Thank you.
        Attorney General Holder. But just shortly, I think the
    point that you raise is a really good one. It is one thing for
    an individual to shoplift, take something. This is bad. You
    know, take it out under their coat, take it out of the store.
    But when you have a whole bunch of people doing that and then
    using the Internet essentially as a way, a means by which you
    fence this material, you really kind of multiply the
    possibilities for these people, and you have what could be in
    the old days seen as a local problem become a truly national
    one with consequences for our economy, not just the local
    economy but for our National economy.
        Senator Klobuchar. Well, we would love to have the
    Department of Justice help on this bill and to get it done.
    Thank you.
        Senator Specter. [presiding.] Thank you, Senator Klobuchar.
        Senator Whitehouse.
        Senator Whitehouse. Thank you, Chairman Specter.
        First of all, welcome, Attorney General Holder. I would
    like to begin by saying that I am very proud of and would like
    to associate myself with the remarks that Senator Feinstein
    made and to observe that the emblems of American justice, which
    is something that is admired and revered around the world and
    is a national asset in which we justifiably take great pride,
    are the blindfold and the balance, not the torch and the
    pitchfork. And I want to applaud your steadfast defense of the
    principles of American justice as Attorney General.
        There has been considerable discussion about health care. I
    would like to let my colleagues know that Senator LeMieux and I
    are working on a piece of bipartisan legislation to look at
    predictive capabilities in health care fraud, and we will, of
    course, follow up with Senator Cornyn and Senator Klobuchar.
    And perhaps we have the beginnings of a good, strong piece of
    noncontroversial, anti-crime, bipartisan legislation, and I
    hope your office, Attorney General, will work with us on
    reviewing that legislation. But I think we could make some good
    progress off this hearing.
        I wanted to go back to the question of military commissions
    again. When you and I were in a different hearing, you said
    that one of the values of Article III courts is the
    experiential base that they provide, that prosecutors going in
    can know what the answers are going to be to a whole array of
    questions and, therefore, can model out how the case is going
    to play out and can produce it more effectively.
        We have already noted that there have been hundreds of
    Article III terror prosecutions versus only three military
    tribunal prosecutions, and it is my understanding that of those
    three military tribunals, a number of them were actually plea
    agreements and, therefore, did not contribute to the
    experiential base of those military commissions. Is that
    correct?
        Attorney General Holder. I think that is correct. I am not
    sure exactly what the number is. I think there might have been
    two pleas, but I am not sure about that.
        Senator Whitehouse. Yes, that is my understanding as well.
    And, you know, that leads me to--here is a statement signed by
    Jack Goldsmith, who was the head of Office of Legal Counsel
    during the Bush administration. He said, ``The legal and
    political risks of using the ill-fated military commission
    system are significant. Serious legal issues remain unresolved,
    including the validity of the nontraditional criminal charges
    that will be central to the commissions' success and the role
    of the Geneva Convention. Sorting out these and dozens of other
    novel legal issues raised by commissions will take years and
    might render them ineffectual. Such foundational uncertainty
    makes commissions a less than ideal forum for trying''--in this
    case, Khalid Sheikh Mohammed.
        So you seem to have good support from the Bush
    administration in your view, and it is one that I share from my
    time in the prosecution world, that that experiential base is
    very important.
        I would note that John Bellinger, who was top legal adviser
    to the National Security Council and the State Department under
    President George W. Bush, has said publicly that the rush to
    military commissions is based on premises that are not true.
    And Ken Wainstein, whom we have had before this Committee
    regularly, who was the Assistant Attorney General for National
    Security under the Bush administration, has said that,
    ``Denying yourself access to one system in favor of the other
    could be counterproductive. I see the benefit of having both
    systems available. That is why I applauded the Obama
    administration when they decided to retain military
    commissions.''
        Now, you have made the decision to go with both Article III
    courts and military tribunals as the circumstances justify. I
    wanted to ask you what role you think the legislature should
    have in that exercise of prosecutorial discretion. Again, 4
    years as Attorney General, 4 years as United States Attorney,
    my view on this is that the legislature really has no proper
    business in the exercise of prosecutorial discretion. It is one
    of those areas--it is not in my interest now as a Senator to
    say so, but I believe that on principle it is one of those
    areas that the Constitution commends exclusively to one branch
    of Government, and that is yours, the executive branch.
        Attorney General Holder. Well, as I indicated in a letter
    that I sent, I think, to this Committee, signed by me and by
    the Secretary of Defense, Robert Gates, that is the position
    that we took. This is, we believe, an inherently executive
    branch function to make the determinations as to which of those
    two forums should be used. We are in possession of the greatest
    amount of information. It is the way in which our Constitution,
    I think, has set up our system of Government. And the letter
    that we sent indicated that attempts by Congress, well meaning
    though they might be, to inject Congress into that role we
    think is inappropriate.
        Senator Whitehouse. Is just not the right place, yes. Well,
    I agree with you on that, and I want to also associate myself
    with Senator Graham's remarks. I think his standard that we
    should be flexible, pragmatic, and aggressive in making those
    decisions is a good one, and I have confidence in leaving that
    decision to you and to the people that surround you in our
    National security establishment.
        On the question of interrogations and the use of Miranda
    warnings, it is my--I have been on the Intelligence Committee
    for a couple years, and my exposure to the problem of
    interrogations, the question of interrogations, is that if you
    are going to do this effectively, you have to begin an
    interrogation with an interrogation strategy, and that that
    strategy is developed by trained professionals who are expert
    in this particular area. And the information that I have is
    that that strategy can include and on numerous occasions
    actually has included the provision of Miranda warnings to the
    subject of the interrogation as a part of the experts' best
    practice of interrogation in that particular case. Is that not
    true?
        Attorney General Holder. I think that is exactly right. If
    you talk to these FBI interrogators, these very good FBI
    interrogators, they talk about the need to establish a bond,
    some level of trust. And one of the things that at least a
    couple have talked about with me is that the giving of these
    warnings indicates to that person that you are going to be
    fair. They become more trusting and perhaps more desirous of
    sharing information. And I think what we have seen is that the
    giving of Miranda warnings does not necessarily mean that the
    information flow stops. I think quite the contrary, what we
    have seen over this past year with regard to Zazi,
    Abdulmutallab, Headley, all of whom were given Miranda
    warnings, the information flow was substantial and beneficial
    to our country.
        Senator Whitehouse. So whether and when to give Miranda
    warnings is something that should be left to the professional
    interrogators to develop as part of their professional
    interrogation strategy case by case.
        Attorney General Holder. I think so. One of the things that
    the people on the ground had to determine in Detroit when
    Abdulmutallab tried to blow up that airplane, they had to make
    an almost instantaneous decision. How are we going to deal with
    this person? And they decided initially that they did not need
    to and should not give Miranda warnings to him so that they
    could, under the public safety exception, determine whether or
    not there were other people on the plane they needed to be
    concerned about, whether there were other people in other
    planes that they needed to be concerned about. And then
    afterwards, they decided, after consulting with people back
    here in Washington, that it was appropriate to give Miranda
    warnings that ultimately proved successful in getting more
    information out of them.
        Senator Whitehouse. Mr. Chairman, my time has expired. I
    have a number of questions that I will be asking as questions
    for the record. They relate to the cybersecurity issue, and I
    would like to ask, if I may, the cooperation of the Attorney
    General in assuring rapid responses to those questions. I am
    the Chairman of a task force on the Intelligence Committee that
    is performing a report for the Committee on cybersecurity, and
    I have promised my colleagues that I will have that report done
    by the end of June. And I would like to have your input soon,
    and I know that questions for the record can sometimes take
    weeks, months. They can sort of drift off into eternity. And if
    you could mark these as ones for a quick response, I would be
    very grateful. Thank you, Chairman.
        [The questions of Senator Whitehouse appear under questions
    and answers.]
        Senator Specter. Thank you, Senator Whitehouse.
        We will go to round two after I finish my first round.
        Mr. Attorney General, there will be another opportunity to
    test the constitutionality of the warrantless wiretaps through
    the appellate process and hopefully to the Supreme Court of the
    United States and from the decision made by Chief Judge Walker
    recently in the San Francisco case holding that the warrantless
    wiretaps were unconstitutional, saying that the requirements of
    the Foreign Intelligence Surveillance Act precluded warrantless
    wiretaps; that there had to be probable cause and a warrant.
        There was an opportunity to have a review by the Supreme
    Court of the United States in the case arising out of Detroit,
    in which the Federal court there declared the warrantless
    wiretaps unconstitutional. The Sixth Circuit decided there was
    no standing. I thought the dissent was much stronger than the
    two judges in the majority. It is well-known that standing is
    frequently used as a way of avoiding deciding tough questions,
    and the Supreme Court of the United States denied cert.
        So at this point, after a lot of speculation, a lot of
    discussion, we do not know dispositively whether the
    President's power as Commander-in-Chief under Article II
    justifies warrantless wiretapping or whether the explicit
    provisions of the Foreign Intelligence Surveillance Act cover.
        Would you press to have the case coming out of the San
    Francisco Federal court go to the Supreme Court for a decision
    there?
        Attorney General Holder. We have really not decided what we
    are going to do at this point with the decision that was made
    by the judge. The focus there had really been not necessarily
    as much on the legality of the TSP as on the protection of
    sources and methods. And a determination as to what we are
    going to do with the adverse ruling that we got from the chief
    judge, the district court judge, has not been made as yet. We
    are considering our options.
        Senator Specter. What do you think?
        Attorney General Holder. Well, I think that I have not made
    up my mind yet. I think that we have to see what the impact
    will be on this case with regard to a program that I guess
    ended in, I think, 2007, 2006. My view is that to the extent
    that--I cannot get into too many operational things here, but
    the support of Congress, the authorization from Congress to
    conduct these kinds of programs, is the way in which the
    executive branch should operate. The executive branch is at its
    strongest, we have the firmest foundation when we work with
    Members of Congress to set up these kinds of programs, and
    especially when one looks at, as you point out, the
    requirements under FISA.
        So I think that we will have to consider what our options
    are and try to understand what the ramifications are of the
    judge's ruling in the Al Haramein case.
        Senator Specter. Well, since you have not made up your
    mind, I would urge you to make it up to get a decision. I filed
    a bill to compel the Supreme Court to take the warrantless
    wiretap case. Congress obviously cannot tell the Supreme Court
    how to decide a case, but we can deal with the jurisdictional
    issue. And as we look to the next round of nominations, I think
    one of the big areas of failing by the Court has been its
    refusal to take up cases and make decisions. They denied cert
    in the case involving the question of sovereign immunity where
    the survivors of victims of 9/11 were suing in tort with very
    strong evidence going very high up into the government of Saudi
    Arabia, and the Congressional determination on sovereign
    immunity was that it would not apply in that kind of a
    situation. And the Court, by deciding not to decide, is very
    deferential to Executive power.
        I think that when we are looking for nominees to the Court,
    we are really looking to the standard of Chief Justice Roberts
    not to jolt the system, to follow the precedents. And we have
    not gotten that, notwithstanding assurances not to jolt the
    system. The system has been jolted very roughly. The Citizens
    case allowing corporations to advertise in political campaigns
    is illustrative.
        I want to pick up one of the questions which Senator
    Whitehouse had asked about the Miranda warnings. The impact of
    not giving the Miranda warnings is widely misunderstood. If
    Miranda warnings are not given, all that it means is that the
    statements made by the subject of interrogation cannot be
    admitted into evidence against him in an Article III court. But
    when you dealt with somebody like the Christmas Day bomber,
    caught red-handed, you did not really need admissions or a
    confession. The evidence was overwhelming. And when we talk
    about the subtleties of interrogation, I find it hard to accept
    that the assistance of establishing a rapport and a bond by the
    interrogator with the subject would be sufficiently enhanced to
    warrant giving the Miranda warnings as a discourager for making
    statements. By the time you get through saying, ``You have a
    right to remain silent, anything you say''--there are five of
    them, and then you get express waivers, you go back. But that
    is a big discouraging factor.
        So that it would be my hope that the warnings would not be
    given. The most important thing in dealing with a terrorist is
    to get information to prevent future acts of terrorism, even if
    it means not convicting the individual. If you had to make--in
    my view, if you had to make a choice between convicting and
    getting information which might preclude a subsequent terrorist
    attack, the balance would all be on getting the information.
        But is what you are saying that the policy of the
    Department is to make a judgment on the specific case as to
    whether to give Miranda warnings or not; that you leave it up
    to the interrogator if his judgment is that this rapport will
    be established, but you are not determining in all cases, are
    you, to give Miranda warnings?
        Attorney General Holder. That is correct. There are overall
    exceptions, as you know, to the Miranda rule, and you can take
    advantage of those in interacting with the terrorists. I am not
    saying that they should be given in all circumstances. And one
    of the things you very correctly point out is that in
    interacting with these terrorists, suspected terrorists, you
    want to gain intelligence from them. That in some ways may be
    more important than trying to protect a potential criminal
    case.
        So I think we have to have, again, this flexibility to
    decide what is it that we want to do. I mean, we look back on
    the Detroit incident, and we can say in retrospect that it was
    pretty obvious what happened on the airplane. But that is not
    necessarily what those agents had when they had this guy in
    front of them, his pants perhaps still smoking, and they do not
    know exactly what is going on at that point. But even so, they
    did not give Miranda warnings in that initial interaction with
    him.
        So I am looking for flexibility, but with the thought that
    when it comes to terrorism, the gathering of intelligence is of
    critical importance.
        Senator Specter. Well, I am glad to hear that, that you are
    not doing it automatically, and with the gathering of
    intelligence as the more important factor than the conviction.
        Round two, Senator Sessions.
        Senator Sessions. Thank you, Mr. Chairman. It is good to
    see you in that chair even though from a different side of the
    aisle than I am familiar with.
        Senator Specter. The chair is not on an aisle.
        [Laughter.]
        Senator Sessions. It is in the middle, isn't it?
        I think your comments about Miranda are right, except I
    would have two little cautionary comments. One is Senator
    Graham asked you what was going to happen if somebody arrested
    bin Laden, would they be giving Miranda rights? You could not
    give a clear answer, but that person is not likely to be able
    to check with you at that moment. We need a policy, No. 1.
        No. 2, according to the Miranda rule, as soon as a person
    is taken into custody, they are supposed to be advised of their
    rights before questions are asked, and that is the FBI policy.
    It is in their manual, and that is what they are going to do
    unless somebody explicitly tells them otherwise.
        And, No. 3, there is no doubt in my mind, as Senator
    Specter has suggested, that when you tell an individual their
    right to have a lawyer, they have a right to remain silent, and
    that you will appoint them one and bring them one, you are
    going to get less actionable intelligence than if you did not
    do so. And, in fact, the first thing a good lawyer is going to
    say is, ``Don't talk.''
        Now, you may have to make a plea bargain with them later
    and other things may happen, and the fact that some people do
    cooperate ultimately does not affect the rule. The basic fact
    is realistically you are going to get less information from
    that procedure, and that is why that is a big part of the
    reason that many of these cases need to be handled through
    military commissions and military custody.
        Attorney General Holder. Well, Senator----
        Senator Sessions. I will let you respond to that.
        Attorney General Holder. OK. Senator, first off, maybe I
    was not clear. With regard to bin Laden, there would be no need
    to give bin Laden Miranda warnings. And if I was not clear
    there, I meant to be; that if he were captured, I cannot
    foresee any reason why----
        Senator Sessions. Mr. Holder, the presumption is in your
    own report that they would be tried in civilian courts. And why
    wouldn't you give Miranda warnings? What basis----
        Attorney General Holder. Miranda warnings----
        Senator Sessions [continuing.]--Is there not to do so,
    unless you are going to try them in military commissions?
        Attorney General Holder. Well, the concern with Miranda
    warnings is only whether or not the information that you would
    get from that person might be excluded. We have sufficient
    information, statements from bin Laden, so that there is no
    reason to Mirandize him at all, and you can still bring his
    case in the----
        Senator Sessions. You could do that, all right. I
    acknowledge that that is possible.
        Attorney General Holder. Right.
        Senator Sessions. But for Abdulmutallab on Christmas Day,
    like you said, what did the agents know about the strength of
    their case? And there is a doctrine that says if the improperly
    obtained information as a result of not giving Miranda warnings
    can poison the entire prosecution and raise questions and
    create many defenses that would not otherwise exist. So I think
    the rule to me simply would be that you expect these terrorist
    individuals to be tried and taken into military custody. Isn't
    is true and isn't it appropriate that after they have been
    taken into military custody, if you chose to try them in
    civilian court, you could still do so?
        Attorney General Holder. I suppose that is true, but I
    think there is----
        Senator Sessions. We have done that a number of times, have
    we not?
        Attorney General Holder. We have done it on at least a
    couple of----
        Senator Sessions. What about Khalid Sheikh Mohammed? He has
    been in military custody, has he not? And you have declared him
    ready to go to trial in civilian courts.
        Attorney General Holder. Right, and we have done that I
    guess with----
        Senator Sessions. Well, that is the fact. You take them
    into military custody, and then you can try them at your option
    in civilian courts.
        Attorney General Holder. Well, what I have been trying to
    say is that there is not----
        Senator Sessions. Why wouldn't that be the right way to
    start the case and have a policy for every FBI agent, every
    police officer, every TSA airport official to begin--to not
    give Miranda warnings and not provide free attorneys to people
    who are attacking the United States of America?
        Attorney General Holder. Well, but let us look at what
    happened with regard to the Detroit bomber, Abdulmutallab. The
    FBI agents, who have a policy, as you correctly--they are
    supposed to when people are taken into custody give Miranda
    warnings. They had the presence of mind, given their experience
    and given the concerns that they had and given their knowledge
    of the law, to understand that in that initial interaction they
    did not have to give him his Miranda warnings, and the
    information they got from him can be used in a trial against
    him under the Quarles exception, the public safety exception.
    And putting----
        Senator Sessions. Well, I do not know if the public safety
    exception goes to 50 minutes. Have you had any case that has
    ever gone that long?
        Attorney General Holder. Well, I think----
        Senator Sessions. In other words, where you say to
    somebody, ``Do you have a gun? '' or ``Do you have a bomb? ''
    But after a while, that exception ends.
        Attorney General Holder. Well, I am going to say as a
    former judge, given my experience, given that set of facts, I
    would think that the Government has acted appropriately here,
    and that statements from that gentleman would be admissible in
    a trial.
        Senator Sessions. Well, I would just say that it would be--
    a defense lawyer would make that point, I am sure.
        Attorney General Holder. Oh, I am sure they would. But they
    would lose in Holder's court.
        [Laughter.]
        Senator Sessions. This is really significant, the whole
    thing is. Let me just say about how we got to this point. And
    my friend Senator Durbin, the Democratic Whip, is so eloquent,
    but President Bush--the first case that came up was Padilla,
    and that was before military commissions had been established.
    He established military commissions, and the Supreme Court
    found them lacking, and the Defense Department stopped and had
    to rewrite the rules. And during that period of time up through
    2006, the Congress passed legislation to effectuate military
    commissions in late 2006, and then it took some time for the
    rules to all be written and moving forward. But the plan was to
    try the several hundred people at Guantanamo that were going to
    be tried--all of them did not have to be tried--that they would
    be tried by a military commission. And Khalid Sheikh Mohammed's
    case was already proceeding as a military commission, was it
    not, until President Obama, when his first act was to stop
    that?
        Attorney General Holder. Well, the case had been proceeding
    in a military Commission in a very halting fashion, and the
    decision that the Obama administration made was to put a halt
    to those things so that the commission procedures could be
    amended, and Congress actually passed those, I guess in 2009.
        Senator Sessions. You had a commission, you co-chaired the
    commission to decide what to do, and you concluded that even
    those who had already been arrested and already are detained at
    Guantanamo, there would be a presumption that they would be
    tried in civilian court and not by a military commission. Has
    that been changed?
        Attorney General Holder. That has not been changed. The
    presumption that we use--that is, I use, along with Secretary
    of Defense and all the people who worked with us, the protocol
    that we were given did have that presumption in it.
        Senator Sessions. Well, so I would just say that there is
    not exactly a clean slate and you decide each case based on the
    facts of that case. You have got a presumption in favor of
    civilian trials.
        Attorney General Holder. But it is a rebuttable
    presumption, and there are a variety of other factors that we
    take into account, not the least of which is, at the end of the
    day, in which forum can we be most effective, and I think the
    test is what I have actually done, which is to say that with
    regard to, I think it is five or six cases, that military
    commissions are the best places for them to be tried.
        Senator Sessions. Well, we have a letter that came in on
    March 16th, a few weeks ago, from the Department of Defense,
    the Deputy Director, that there were no military commissions in
    2009 pursuant to an order of the Secretary of Defense issued
    January 20, 2009. That is changing the policy by President
    Obama as soon as he took office. And prosecutors then sought
    continuances in each case that were already referred to a
    military commission. And the convening authority ceased
    referring new charges to military commissions. And to my
    knowledge, that has not been changed, has it?
        Attorney General Holder. No, but I believe that we are
    going to be making determinations as to where these cases ought
    to go. It is our intention to use military commissions as well
    as Article III courts, again, with that whole notion of being
    flexible, pragmatic, and aggressive.
        Senator Sessions. Well, I think that is fair to say you
    would make some individual determinations on cases. Some of
    these are record cases, financing of terrorism, support of
    terrorism cases that could be easily handled in these courts.
    But it is pretty clear to me that you made a firm decision to
    go the other way, to civilian courts, with virtually all of
    these cases, and it is in error. And I hope that you will
    review that, and I hope the New York case will be the beginning
    of a re-evaluation of that policy.
        Attorney General Holder. Well, I actually think that in
    terms of the decisions that I made back in October and
    November, that in terms of the number of individual cases as
    opposed to the number of defendants, that we actually sent more
    cases to the military commission than I did to the Article III
    court.
        Senator Specter. Thank you, Senator Sessions.
        Senator Graham.
        Senator Graham. Well, thank you, Mr. Chairman. And I think
    the exchange between the two Senators has been a pretty good
    flushing out of the complexities of the situation we find
    ourselves in. But I want to try to, if I can, you know, use
    some scenarios here to reassure people that the system needs to
    be improved, but is not completely by any means broken. If a
    military member stumbles on Osama bin Laden or some high-value
    target in Afghanistan, Pakistan, or you just name the location,
    no one is arguing that that moment in time they are going to
    read him his rights.
        Attorney General Holder. No.
        Senator Graham. What they would do, as I understand it, is
    they would capture him pursuant to a military operation, which
    does not require Mirandizing the enemy prisoner, and they would
    obviously turn him over to some intelligence organizations.
    That would be the case, right?
        Attorney General Holder. We have this High-Value
    Interrogation Group, the HIG, that is designed especially for
    those high-value----
        Senator Graham. And this goes to Senator Sessions' point. I
    think he is right on point here. The HIG is--I want to
    compliment you. I think it is a great organization to have. As
    I understand it, it is a collaborative group of people who will
    be the primary interrogation team when a high-value target is
    captured, whether in the United States or outside the United
    States.
        Attorney General Holder. That is correct. These mobile
    interrogation teams would go to the place and do the
    interrogation.
        Senator Graham. Right. And they will--their primary purpose
    is intelligence gathering, and they will be able to assess what
    the individual knows about enemy operations.
        Attorney General Holder. That is correct.
        Senator Graham. Then they will decide if and when to
    Mirandize, which is absolutely fine with me.
        Attorney General Holder. That will be a part of the
    process.
        Senator Graham. Right, as long as we start with the idea
    that the initial purpose is to gather intelligence. And I think
    that is your policy with the HIG, is that they will get to
    assess the detainee in terms of what they know about the war.
    Is that correct?
        Attorney General Holder. Yes, these high-value detainees
    are people who we think their primary value to us is to gain
    intelligence, to learn about targeting, structure, a whole
    variety of things.
        Senator Graham. Right. And under the law of war, it is
    lawful to interrogate someone. Obviously, we are not torturing
    these people, but we will have authority to do that. So I think
    that is, quite frankly, a pretty good set-up.
        Now, when it comes back to--and I do not want to
    micromanage from Congress, you know, to tell an agent what to
    do and when to do it, as long as we are viewing these suspects
    not as a normal criminal threat but as part of a military
    threat, trying to find out what they know. What additional
    rights would a detainee have, if any, if they were transferred
    from Guantanamo Bay, Cuba, to, say, Illinois? Would the
    transfer of location create more rights for the detainee than
    if they were just left in Guantanamo Bay?
        Attorney General Holder. That is a question that I think
    has not really been answered yet, one that we are not sure
    about. I think that certainly as an advocate I would argue that
    there are not other rights that would necessarily appertain,
    but it is not clear to me how the courts are going to rule.
        Senator Graham. I think that is a very good point, and this
    is a situation where Congress could help give the courts
    clarity. Is that correct?
        Attorney General Holder. I think that is correct.
        Senator Graham. And as a matter of fact, I think most
    judges--Judges Lamberth and Hogan have been in their opinions,
    habeas opinions, have been asking for Congressional help. Have
    you been reading those opinions?
        Attorney General Holder. Yes, I have been reading those
    opinions.
        Senator Graham. I have never seen a judge so open about
    Congress needs to help, because if a detainee is ordered
    released by the judge, the habeas petition is granted, what
    happens next? Do we have to release them in the United States?
    And if we cannot find a third country, what do we do with them?
        Attorney General Holder. There is no requirement that they
    be released into the United States, and in those instances
    where we have decided not to appeal and release has occurred,
    they have typically been taken to a third country.
        Senator Graham. What if you cannot find a third country who
    will take one of these people? What do we do?
        Attorney General Holder. They do not have to be released
    into the United States, and they would remain in custody while
    our efforts to try to find a location would continue.
        Senator Graham. But let us play this out. A habeas petition
    is meaningless if it cannot eventually result in release. Is
    that true?
        Attorney General Holder. Well, I would not say that. It
    gives the possibility to a detainee, a possibility that he can
    be relocated, and that would not exist before the judge made
    that determination.
        Senator Graham. Could we go 10 years in trying to relocate
    that detainee?
        Attorney General Holder. You would hope not. You would hope
    that you would be able to come up with a place for them to go.
        Senator Graham. Would you agree that it would be helpful if
    Congress spoke about a case like this to give some guidance to
    the judges?
        Attorney General Holder. Well, I mean, I think it could be
    helpful, though I think I have a cautionary note that Congress
    can provide guidance except in those areas where a judge makes
    the determination that what the judge is doing is of
    constitutional dimension. Congress in that area cannot----
        Senator Graham. I totally agree, and we are in a dilemma as
    a Nation here, and I do worry about the international
    community. I want them to be more open to the idea of what we
    are doing makes sense. But Great Britain has changed their
    criminal laws to allow people to be held for up to a year
    without trial. Is that correct?
        Attorney General Holder. Yes, though I think the courts
    have kind of pushed back a little bit with regard to their--I
    forget what kind of orders they are called, but----
        Senator Graham. I totally agree, and I think we have the
    right theory here, that if you are an enemy combatant, then the
    law of war takes over, because there is no provision in
    domestic criminal law to hold anyone indefinitely without
    trial. Is that correct?
        Attorney General Holder. Yes, without trial and held
    incommunicado, the various--you know, even with regard to--the
    courts have not really come down----
        Senator Graham. And nor do I want such a rule. I mean, if
    you are going to be charged with a crime, I think you need to
    have your day in court. But if you joined the enemy force, I am
    willing to give you your day in court, but it is not a crime
    you are fighting. You should not have joined al Qaeda.
        As I understand it, every member of al Qaeda that you hold
    as an enemy combatant will appear before a Federal judge in the
    habeas proceedings.
        Attorney General Holder. Right, if they seek habeas review.
        Senator Graham. Right. It is up to them. But if they want
    their day in court, the judge has to agree with the Government
    that the evidence is compelling, reliable, and legally obtained
    to hold them as an enemy combatant. Is that correct?
        Attorney General Holder. That is correct, under the AUMF,
    right.
        Senator Graham. Right. And both of us are trying to work
    with the system that gives ongoing review because enemy
    combatant determination could be a de facto life sentence.
        Attorney General Holder. Well, the----
        Senator Graham. OK. If the judge rules for the Government,
    we believe that you should have an ongoing review process.
        Attorney General Holder. OK, yes.
        Senator Graham. An annual review process. And I want to
    compliment the administration. I think what you all are doing
    there makes sense so that there is an annual review of this
    person's status, because the enemy combatant determination
    could be a de facto life sentence because this war is not going
    to end anytime soon. There will never be a formal surrender. So
    it is an accommodation we are trying to make, sort of a hybrid
    system.
        So what I would like to do is try to get this Committee to
    work with you to deal with what happens when a habeas petition
    is granted, institutionalize an ongoing review process so we
    could look anybody in the world in the eye and say no one in an
    American military prison is held arbitrarily, they have
    independent judicial review, and every military commission
    verdict is appealable to the civilian system. Is that correct,
    under the laws we have, the military commission laws?
        Attorney General Holder. Every military finding is
    appealable to the civilian----
        Senator Graham. Yes, every verdict.
        Attorney General Holder. I believe that is correct.
        Senator Graham. It is. So there is Article III review of
    our military commissions. There is Article III review of our
    enemy combatant determinations, and obviously if you go into
    Article III court, you have Article III ownership there. So
    what I am trying to establish with your help is that there will
    be an independent check and balance throughout every lane, no
    matter what lane you use. But when it comes to closing
    Guantanamo Bay, 59 percent of the American people now object to
    it. There has been about a 20-point shift. And I know I am over
    my time, but I think this is important. Why do you think that
    has happened?
        Attorney General Holder. I honestly think that there has
    been a lot of misinformation placed out there, and without
    casting aspersions on anybody in this room, I think there has
    been unnecessary politicization with regard to national
    security issues that I do not think have served this Nation
    necessarily well.
        Senator Graham. Can I give you an alternative theory? And
    there is probably some truth to that. I am not saying that you
    are all wrong. I think there are a lot of people in this
    country worried about we do not have a coherent policy. And as
    I have tried to discuss with you, this is hard. This is sort of
    new areas. And the Christmas Day bomber probably highlighted it
    to people. It was a bit unnerving because they saw this guy as
    not a common criminal and Miranda warnings--we all watch TV--
    are associated with ``Dragnet'' and all this other stuff.
        So I think it would be helpful not only to focus on our
    allies but also the American people and assure them that as we
    go forward in this war on terror, we are going to live within
    our value system, but we are going to have a legal system that
    will protect you and your family against people who are
    committed to our destruction. It will not include torture. It
    will be transparent; it will be open. But it will be based on
    the principle, as Senator Specter said, this is not a normal
    criminal operation.
        I think if we could do that, Mr. Attorney General, not only
    would you serve the moment well here in America, you would
    serve the future well. And I look forward to helping make that
    happen. We have got to assure the American people, not just our
    allies, that we have a good system that will protect us against
    what I think is an enduring threat. We will be fighting this
    war long after you and I have left the political arena. I wish
    it were not so, but I believe it to be so. So let us park some
    of the rhetoric and see if we can find a solution.
        Thank you for your service. I really admire what you are
    trying to do for the country.
        Attorney General Holder. I think the point that you last
    made actually is a very good one, and I think that it is
    incumbent upon people like myself to be more forthcoming,
    perhaps more clear with the American people about what our
    intentions are, and to explain to them in ways that perhaps we
    have not done, that I have not done effectively to date, so
    that there is a degree of assurance that they have, because I
    think you are probably right that in addition to whatever I
    have mentioned, the factors that you have mentioned are also
    probably some factor in why that approval, or that approval
    notion, of closing Guantanamo has dropped.
        Senator Graham. I think the Congress could be a good
    partner for you, and if the Congress and the executive branch
    were working together, I think it would help us in court, and I
    think it would help the American people be reassured. Thank
    you.
        Senator Specter. Thank you, Senator Graham.
        Before yielding to Senator Grassley for his second round, I
    intend to turn the gavel over to Senator Cardin in a few
    moments. In lieu of a second round, just a couple of comments.
        On the pending nomination to the Supreme Court, I may be
    consulted on the subject. I am sure you will be. Just a word or
    two of my thinking on it. I believe the President ought not to
    be concerned about a filibuster, but ought to face squarely the
    fact that the Supreme Court is an ideological battleground and
    the lines are drawn. Chief Justice Roberts testified
    extensively in his confirmation hearings that he was going to
    try to draw a consensus and narrow the issues. Well, that
    certainly has not happened. It has been anything but that.
        Chief Justice Roberts was very forceful in saying that he
    would not jolt the system. Well, Citizens United is one hell of
    a jolt. It is hard to figure a jolt harder than that one on 100
    years of precedent. And the theory which has been advanced
    about finding a judge who will be a consensus judge, be the
    fifth vote and not the fourth vote, and some specific comments
    about bringing Justice Kennedy over into the fifth vote with
    the new appointee plus the three others on the Court I think is
    highly unlikely.
        The precedent which is cited in the Rasul case, where
    Justice Stevens wrote an opinion identifying habeas corpus as a
    constitutional right going back to the Magna Carta, and then
    inexplicably in Boumediene the Court of Appeals for the
    District of Columbia said that it was decided on statutory
    grounds, statutory habeas corpus and constitutional habeas
    corpus, is about as far-fetched as an interpretation can be.
    And then when the petition for cert was filed in Boumediene,
    there were only three Justices. Everybody was surprised that
    Justice Stevens did not vote to grant cert, but as it has been
    speculated, and apparently with some real foundation, Justice
    Stevens did not want four Justices to grant cert and have
    Boumediene upheld, but waited until there was some disclosures
    about major failings in the commissions which on a petition for
    reconsideration for cert it takes five Justices, not four. And
    then there were five, and Justice Kennedy wrote the opinion in
    Boumediene.
        But I think it is fanciful thinking looking for that kind
    of collegiality to carry the day, so that I would hope that the
    ideological battleground would be recognized. And President
    Obama is not halfway through his second year. He may have an
    opportunity for other Supreme Court picks which would line up
    with Breyer and Ginsburg and Sotomayor. So that if you have an
    opportunity, if the President is not watching this Judiciary
    Committee session, pass on the word.
        Attorney General Holder. Well, I am sure, Mr. Chairman, you
    are going to have that opportunity yourself, but I will pass
    along what you said.
        Senator Specter. Well, that concludes the hearing. Thank
    you very much, Mr. Attorney General.
        Attorney General Holder. OK. Thank you.
        Senator Specter. Let me join Senator Graham's commendation
    to you for doing a very good job.
        Attorney General Holder. Thank you, sir.
        [Whereupon, at 12:31 p.m., the Committee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]

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