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

                                                        S. Hrg. 111-807



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE


                             SECOND SESSION


                             APRIL 14, 2010


                          Serial No. J-111-84


         Printed for the use of the Committee on the Judiciary

63-323                    WASHINGTON : 2011
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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
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
AL FRANKEN, Minnesota
            Bruce A. Cohen, Chief Counsel and Staff Director
                  Matt Miner, Republican Chief Counsel

                            C O N T E N T S




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


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



                       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, 
    Present: Senators Kohl, Feinstein, Feingold, Schumer, 
Durbin, Cardin, Whitehouse, Klobuchar, Kaufman, Specter, 
Franken, Sessions, Hatch, Grassley, Kyl, Graham, and Cornyn.

                       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.
    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 
    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.

                           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 
    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 
    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 
    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.


    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Senator Feinstein. These are regulations that have to be 
    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 
    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. 
    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 
    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 
    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 
    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 
    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.
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 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 
    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 
    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, 
    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 
    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 
    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.
    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 
    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 
    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 
    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 
    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 
    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 
    Attorney General Holder. Yes. I agree.
    [The questions of Senator Cornyn appear under questions and 
    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 
    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 
    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 
    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.
    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.
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.
    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.
    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 
    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 
    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 
    Attorney General Holder. That is correct. These mobile 
interrogation teams would go to the place and do the 
    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 
    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 
    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, 
    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 
    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 
    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 
    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